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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                  v.                   :
                                       :
CLARENCE BURBAGE,                      :         No. 1799 EDA 2013
                                       :
                       Appellant       :


          Appeal from the Judgment of Sentence, May 31, 2013,
           in the Court of Common Pleas of Philadelphia County
            Criminal Division at Nos. CP-51-CR-0001040-2012,
                         CP-51-CR-0001045-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED AUGUST 21, 2015

     Clarence Burbage appeals from the judgment of sentence of May 31,

2013, following his conviction of first-degree murder, aggravated assault,

robbery, conspiracy, and possession of an instrument of a crime. We affirm.

                 These charges arose out of a dispute over drug
           sales     between     Appellant    and     decedent,
           Danny Williams (“Williams”).    On May 22, 2011,
           between 1 A.M. and 2 A.M., Appellant, Rakeem
           Divers (“Divers”), and co-defendant, Dyshan Aursby
           (“Aursby”), attacked Jerry Holloman (“Holloman”),
           also known as “Mike”. Appellant, Divers, and Aursby
           asked Holloman where Williams was and Holloman
           told them that Williams was with his girlfriend,
           Delisha Foy (“Foy”), at her house.         Appellant,
           Aursby, and Divers told Holloman to call Williams on
           the phone.    When Holloman hesitated, Appellant
           took Holloman’s phone and called Williams. The
           three gentlemen held Holloman at gunpoint as they
           walked to Foy’s house on South 66th Street to see
           Williams.    When they arrived at Foy’s home,
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            Holloman was told to stand at the door while
            Appellant, Aursby, and Divers hid. When Williams
            opened the door, Holloman yelled “run”. Williams
            attempted to slam the door shut but Appellant
            headed inside before the door closed. Holloman ran
            down the alleyway across the street from Foy’s home
            while Aursby and Divers followed Appellant into the
            home. As Appellant, Aursby, and Divers went into
            the home, Williams ran up the stairs to the second
            floor. Williams then jumped out of a second floor
            window, hit the ground, and began limping away.
            Aursby and Divers followed Williams, Aursby drew
            his gun, and fired it at Williams, striking Williams in
            his left buttock. After Appellant, Aursby, and Divers
            left, Holloman found Williams laying [sic] on the
            ground and stayed with him until the police arrived.
            Williams was taken to the Hospital of the University
            of Pennsylvania (HUP). That same day, Williams was
            interviewed inside HUP and told Detective Maurizio
            that Aursby, whom he referred to as “Sha”, and
            Burbage, whom Williams referred to as “C Murder”
            shot him. Based on the identifications made by
            Williams and Holloman, arrest warrants were filed for
            Aursby and Appellant. At approximately 10:20 P.M.
            on May 22, 2011, Philadelphia Police Officers
            McLaughlin and McKiernon arrested Aursby.

                  At approximately 3 A.M. on May 27, 2011,
            Appellant and Divers again attacked Holloman and
            demanded Holloman call Williams to meet him.
            Holloman called Williams and told him to meet him in
            the area of 65th Street & Greenway Avenue. When
            Williams arrived, he began arguing with Appellant.
            Upon seeing Williams reach under his shirt, to
            appear as if he had a gun, Divers gave Appellant a
            gun and Appellant advanced towards Williams.
            Appellant then shot Williams at least eight (8) times
            across the chest, mid-section, arms, and legs. Fire
            Rescue arrived and Williams was pronounced dead at
            3:20 A.M.[]

Trial court opinion, 11/15/13 at 2-3.




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      On May 31, 2013, following a jury trial, appellant was found guilty of

the above charges.        Appellant received the mandatory sentence of life

imprisonment without parole for first-degree murder, and a concurrent

sentence of 5 to 10 years for robbery. No further sentence was imposed on

the remaining charges. A timely notice of appeal was filed on June 5, 2013.

Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial

court has filed an opinion.

      Appellant has raised the following issues for this court’s review:

            1.     Did not the trial court err when it denied
                   appellant’s motion in limine pursuant to
                   Pa.R.E. 403 and Pa.R.E. 404 and permitted the
                   Commonwealth      to   repeatedly   introduce
                   evidence that appellant’s nickname was
                   “C-MURDER” or “MURDER”, which the jury
                   heard 80 times over the course of appellant’s
                   homicide trial, where such evidence had little
                   probative value, was extremely prejudicial to
                   the defense, and was inadmissible character
                   evidence?

            2.     Did not the trial court improperly deny
                   appellant’s motion for a mistrial after the
                   court’s anticipatory admission of Kyree Ball’s
                   out of court statement, “Murder killed Danny”,
                   when Kyree Ball later refused to testify at trial,
                   and the defense had no opportunity to
                   cross-examine this witness?

            3.     Was not the evidence legally insufficient to
                   establish appellant’s guilt of murder beyond a
                   reasonable doubt where the Commonwealth
                   introduced evidence about the crime scene,
                   including ballistic evidence that contradicted
                   the purported eyewitness testimony?

Appellant’s brief at 4.


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     In his first issue on appeal, appellant argues that the trial court erred

in permitting the Commonwealth witnesses to refer to appellant by his

nickname, “Murder” or “C-Murder.” Appellant states that they should have

been instructed to refer to him by his given name, Clarence, and their prior

statements should have been redacted to identify him as “C.”        Appellant

argues that repeatedly using the nickname “Murder” or “C-Murder” during

trial was highly prejudicial and the evidence had no real probative value

where identity was not at issue.

                 “The admissibility of evidence is a matter
                 of trial court discretion and a ruling
                 thereon will only be reversed upon a
                 showing that the trial court abused that
                 discretion.” Commonwealth v. Malloy,
                 579 Pa. 425, 856 A.2d 767, 775 (2004).
                 An abuse of discretion may not be found
                 merely because an appellate court might
                 have reached a different conclusion, but
                 requires     a    result      of    manifest
                 unreasonableness,          or      partiality,
                 prejudice, bias, or ill-will, or such lack of
                 support so as to be clearly erroneous.
                 Commonwealth v. Brougher, 978 A.2d
                 373, 376 (Pa.Super.2009).

           Commonwealth v. Barnett, 50 A.3d 176, 182
           (Pa.Super.2012). “Evidence is relevant if it logically
           tends to establish a material fact in the case, tends
           to make a fact at issue more or less probable or
           supports a reasonable inference or presumption
           regarding a material fact.”      Commonwealth v.
           Fransen, 42 A.3d 1100, 1106 (Pa.Super.2012).
           However, even relevant evidence “may be excluded
           if its probative value is outweighed by the potential
           prejudice.” Id.




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Commonwealth v. Williams, 58 A.3d 796, 800 (Pa.Super. 2012), appeal

denied, 68 A.3d 908 (Pa. 2013).

     In Williams, this court held that the trial court did not abuse its

discretion in allowing the Commonwealth’s witnesses and the prosecutor to

refer to the appellant by his nickname, “Killa,” where the witnesses who

implicated the appellant in the victim’s murder only knew him by the name

“Killa.” Id. The appellant in Williams conceded that he was known by his

nickname, which he gave himself. Id. The Williams court explained,

           Our review of the record shows that the
           Commonwealth did not use Appellant’s nickname to
           suggest Appellant had a violent character, but used
           it to show that the witnesses recognized Appellant
           and could identify him as one of the perpetrators
           even though the witnesses did not know Appellant’s
           real name. Moreover, we find that the evidence’s
           probative value in identifying Appellant outweighed
           any prejudice that resulted from the use of his
           nickname.

Id. at 800-801. Instantly, with the exception of Foy, all the witnesses knew

appellant as “Murder” or “C-Murder” and identified him to police as such.

(Notes of testimony, 5/20/13 at 25.) The witnesses identified appellant in

the photographic array as “C-Murder.” (Id.) As the Commonwealth argued,

this was relevant identification evidence.    (Id. at 26.)   While appellant

claims identification was not at issue, his defense at trial was that he was

not the shooter. (Appellant’s brief at 21.) Clearly, then, the evidence had

probative value in identifying appellant as the gunman. In addition, the trial

court ruled that the Commonwealth could not use appellant’s nickname in


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making argument to the jury, thereby limiting the prejudicial effect of the

evidence.   (Notes of testimony, 5/20/13 at 36.)     The trial court did not

abuse its discretion in denying appellant’s motion in limine to exclude any

reference to his nicknames “Murder” and “C-Murder” where he was identified

as such by several eyewitnesses.

     Next, appellant argues that the trial court should have granted his

motion for mistrial where the prior consistent statement of Kyree Ball, that

“Murder killed Danny,” was admitted into evidence over defense objection.

Ball subsequently refused to testify, thereby denying the defense the

opportunity to cross-examine him regarding this statement.

            With regard to the denial of mistrials, the following
            standards govern our review:

                 In criminal trials, the declaration of a
                 mistrial serves to eliminate the negative
                 effect wrought upon a defendant when
                 prejudicial elements are injected into the
                 case or otherwise discovered at trial. By
                 nullifying the tainted process of the
                 former trial and allowing a new trial to
                 convene, declaration of a mistrial serves
                 not only the defendant’s interests but,
                 equally important, the public’s interest in
                 fair trials designed to end in just
                 judgments. Accordingly, the trial court is
                 vested with discretion to grant a mistrial
                 whenever the alleged prejudicial event
                 may reasonably be said to deprive the
                 defendant of a fair and impartial trial. In
                 making its determination, the court must
                 discern     whether      misconduct      or
                 prejudicial error actually occurred, and if
                 so, . . . assess the degree of any
                 resulting prejudice. Our review of the


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                  resulting   order is   constrained    to
                  determining whether the court abused its
                  discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy

of a mistrial is an extreme remedy required ‘only when an incident is of such

a nature that its unavoidable effect is to deprive the appellant of a fair and

impartial tribunal.’” Id. at 878 (citations omitted).

      Here, appellant had attacked Ball’s credibility, arguing that he had a

motive to fabricate.    The trial court allowed Foy to testify regarding Ball’s

out-of-court statement that “Murder killed Danny.”       (Notes of testimony,

5/22/13, p.m. session at 43.)       This was admitted as a prior consistent

statement in anticipation of Ball testifying the following day. Pennsylvania

Rule of Evidence 613 provides, in relevant part:

            (c)   Witness’s Prior Consistent Statement to
                  Rehabilitate. Evidence of a witness’s prior
                  consistent   statement     is  admissible  to
                  rehabilitate the witness’s credibility if the
                  opposing party is given an opportunity to
                  cross-examine     the   witness    about  the
                  statement and the statement is offered to
                  rebut an express or implied charge of:

                  (1)    fabrication,    bias,     improper
                         influence or motive, or faulty
                         memory and the statement was
                         made before that which has been
                         charged existed or arose[.]

Pa.R.E. 613(c)(1).




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     “To the extent that prior consistent statements are offered to prove

the truth of the matter asserted therein, they are plainly inadmissible

hearsay. However, when they are offered to corroborate in-court testimony,

prior consistent statements are not hearsay.”        Commonwealth v. Willis,

552 A.2d 682, 691 (Pa.Super. 1988), appeal denied, 559 A.2d 527 (Pa.

1989 (citations omitted).

             Usually, evidence of a prior consistent statement
             may not be introduced until after the witness’s
             testimony has been attacked on cross-examination in
             one of the two ways specified in Rule 613(c).
             Pa.R.E. 613(c) cmt. Occasionally, however, it is
             clear before cross-examination that the defense will
             focus on impeachment of the witness, either by
             showing fabrication, bias, etc., or by introducing a
             prior inconsistent statement. In such cases, the trial
             court is afforded discretion to admit the prior
             consistent statement in anticipation of impeachment.

Commonwealth        v.   Cook,   952   A.2d   594,    625   (Pa.   2008),   citing

Commonwealth v. Wilson, 861 A.2d 919, 930 (Pa. 2004).

     As stated above, Ball refused to testify and was held in contempt of

court. (Trial court opinion, 11/15/13 at 6.) Therefore, the defense did not

have the opportunity to cross-examine Ball regarding his prior out-of-court

statement.     As such, Ball’s statement should not have been admitted.

However, we determine that the trial court properly denied appellant’s

motion for mistrial where Jerry Holloman made the identical statement, i.e.,

“Murder killed Danny.” (Notes of testimony, 5/22/13, p.m. session at 43;

5/23/13, a.m. session at 37.)     Appellant does not contest that Holloman’s



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statement was admissible under Rule 613(c). At most, then, the trial court’s

ruling was harmless error.

            Harmless error exists where: (1) the error did not
            prejudice the defendant or the prejudice was
            de minimis; (2) the erroneously admitted evidence
            was merely cumulative of other untainted evidence
            which was substantially similar to the erroneously
            admitted evidence; or (3) the properly admitted and
            uncontradicted    evidence    of  guilt   was     so
            overwhelming and the prejudicial effect of the error
            was so insignificant by comparison that the error
            could not have contributed to the verdict.
            Commonwealth v. Simmons, 541 Pa. 211, 662
            A.2d 621 (1995) citing Commonwealth v.
            Williams, 524 Pa. 404, 573 A.2d 536 (1990).

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998), cert.

denied, 528 U.S. 1082 (2000).

      Instantly, Holloman also told Foy that “Murder killed Danny.” Although

he raised an objection at trial, appellant does not argue on appeal that

admission of Holloman’s statement was error.       Therefore, Ball’s statement

was merely cumulative and any error was harmless. The trial court did not

abuse its discretion in denying appellant’s motion for mistrial on this basis.

      Finally, appellant challenges the sufficiency of the evidence to support

his convictions.   Appellant points to several alleged inconsistencies, e.g.,

there was testimony that appellant shot Williams as he was running away,

but all eight fired cartridge casings were found near Williams’ body.

(Appellant’s brief at 28.) According to appellant, if he were chasing Williams

while firing at him, the cartridge casings would have been spread around the



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area.    (Id. at 28-29.)   Appellant also argues that the medical examiner’s

report indicated that two of the bullets removed from the victim’s body were

different than the others.     (Id. at 29-30; notes of testimony, 5/22/13,

a.m. session at 41-42.) Appellant contends that this evidence is inconsistent

with Holloman’s testimony that only appellant had a firearm.

             In determining sufficiency of the evidence, the Court
             must review the evidence admitted at trial, along
             with any reasonable inferences that may be drawn
             from that evidence, in the light most favorable to the
             verdict winner. Commonwealth v. Kimbrough,
             872 A.2d 1244, 1248 (Pa.Super. 2005), appeal
             denied, 585 Pa. 687, 887 A.2d 1240 (2005). A
             conviction will be upheld if after review we find that
             the jury could have found every element of the crime
             beyond a reasonable doubt. Commonwealth v.
             Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003). The
             court may not weigh the evidence or substitute its
             judgment      for    that     of    the     fact-finder.
             Commonwealth v. DiStefano, 782 A.2d 574, 582
             (Pa.Super. 2001), appeal denied, 569 Pa. 716, 806
             A.2d 858 (2002).         “Any doubts regarding a
             defendant’s guilt may be resolved by the fact-finder
             unless the evidence is so weak and inconclusive that
             as a matter of law no probability of fact may be
             drawn     from    the    combined      circumstances.”
             Commonwealth v. Sheppard, 837 A.2d 555, 557
             (Pa.Super. 2003).

Commonwealth v. Judd, 897 A.2d 1224, 1233-1234 (Pa.Super. 2006),

appeal denied, 912 A.2d 1291 (Pa. 2006).

        Clearly, Holloman’s testimony that appellant shot the victim repeatedly

at close range was sufficient to support the verdict. Appellant’s arguments

regarding certain contradictions or inconsistencies in the Commonwealth’s

evidence were for the jury to resolve.


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             The law is well settled that a sufficiency argument
             that is founded upon a mere disagreement with the
             credibility determinations made by the fact finder, or
             discrepancies in the accounts of the witnesses, does
             not warrant the grant of appellate relief, for [i]t is
             within the province of the fact finder to determine
             the weight to be accorded each witness’s testimony
             and to believe all, part, or none of the evidence
             introduced at trial.

Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa.Super. 2006) (internal

quotation marks and citations omitted).         Regarding the cluster of fired

cartridge casings found near the victim’s body, as the Commonwealth

observes, there was testimony that Williams was unable to run because he

had been shot in the buttocks by appellant’s accomplice, Aursby, five days

earlier.   (Commonwealth’s brief at 24.)      Appellant retrieved the gun from

Divers who was only a few feet away. (Id.) Therefore, there was a rational

explanation for why the fired cartridge casings were not dispersed over a

wider area. At any rate, these were issues for the jury, and they obviously

found the testimony of Holloman and Foy to be credible.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




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