J-S77002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL RAKEEM SPENCER,

                             Appellant                 No. 334 MDA 2017


        Appeal from the Judgment of Sentence Entered October 12, 2016
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000882-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 22, 2018

        Appellant, Michael Rakeem Spencer, appeals from the judgment of

sentence of an aggregate term of 27½ to 55 years’ imprisonment, imposed

after a jury convicted him of, inter alia, criminal attempt to commit homicide

and multiple counts of aggravated assault. We affirm.

        The trial court summarized the factual background and procedural

history of this case as follows:
        On April 18, 2015[,] at approximately 2:15 a.m., a shooting
        incident occurred outside of Club Imbibe (hereinafter “Imbibe”) on
        Pine Street in the city of Williamsport. Appellant … had gotten
        into a disagreement with Tyree Green inside Imbibe. Appellant
        left Imbibe, retrieved a handgun, and returned to the area outside
        Imbibe. As it was just after closing, numerous individuals who
        had been patrons of Imbibe were standing or walking outside.
        Appellant started firing shots toward Tyree Green. Five innocent
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S77002-17


     bystanders who happened to be standing or walking between
     Appellant and Tyree Green were shot and sustained various
     injuries.

     On April 23, 2015, the police filed a criminal complaint against
     Appellant and obtained a warrant for his arrest. The police
     charged Appellant with two counts of attempted homicide, ten
     counts of aggravated assault, two firearm counts and related
     offenses.

     On July 29, 2016, following a jury trial, Appellant was found guilty
     of, among other charges: count 1, criminal attempt to commit
     homicide,1 a felony of the first degree; counts 3, 5, and 9,
     aggravated assault (attempting to cause or causing serious bodily
     injury),2 felonies of the first degree; and count 12, aggravated
     assault (attempting to cause or causing bodily injury with a deadly
     weapon),3 a felony of the second degree. Although Appellant was
     found guilty of numerous other related charges, they are not
     relevant for the purposes of this [Pa.R.A.P. 1925(a) o]pinion.
        1   18 Pa.C.S.[] § 903.
        2   18 Pa.C.S.[] § 2702(a)(1).
        3   18 Pa.C.S.[] § 2702(a)(4).

     On October 12, 2016, the court sentenced Appellant to an
     aggregate term of twenty seven and a half (27½) years to fifty-
     five (55) years of incarceration in a state correctional institution,
     which consisted of six (6) to twelve (12) years on count 1; six and
     a half (6½) to thirteen (13) years each on counts 3, 5, and 9; and
     two (2) to four (4) years on count 12. All of these sentences were
     consecutive to each other. The remaining sentences merged or
     were concurrent.

     Due to a family medical issue, defense counsel requested an
     extension to file Appellant’s post-sentence motion within twenty
     (20) days of sentencing, which the court permitted. On October
     31, 2016, defense counsel filed Appellant’s post-sentence motion.
     The court denied the post-sentence motion in an Opinion and
     Order dated January 30, 2017.

Trial Court Opinion, 6/19/2017, at 1-2.




                                     -2-
J-S77002-17



      Following the denial of his post-sentence motion, Appellant filed a timely

notice of appeal.    He complied with the trial court’s instruction to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

the trial court thereafter issued a Rule 1925(a) opinion.

      Appellant presents the following issues for our review:

          1. The evidence submitted at … Appellant’s trial in this matter
             was insufficient to meet the Commonwealth’s burden of
             proving that … Appellant was the [a]ctor for each offense
             charged in the information beyond a reasonable doubt.

          2. The verdict is against the weight of the evidence because
             the Commonwealth’s evidence did not identify … Appellant
             as the actor.

          3. The trial court erred in permitting the Commonwealth to
             admit into evidence at trial an audio recording of
             [Appellant’s] discussing with a family member that he
             would be willing to accept a plea offer in the case for a
             minimum sentence of fifteen (15) years.

Appellant’s Brief at 6.

      We have closely examined the certified record, the briefs of the parties,

and the pertinent law. In addition, we have reviewed the comprehensive and

cogent opinion of the Honorable Marc F. Lovecchio of the Court of Common

Pleas of Lycoming County.     We determine that Judge Lovecchio’s detailed,

well-reasoned opinion accurately disposes of the issues raised by Appellant.

Accordingly, we adopt his opinion as our own and affirm the judgment of

sentence on that basis.




                                     -3-
J-S77002-17



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2018




                                 -4-
                                                                                 Circulated 02/02/2018 09:29 AM




          COMMON\VEALTH                                   No. CP-41-CR-0000882-2015
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          lVIlCHAEL SPENCER,                                                            l'"_;.,

                 Appe1lant                                1925(a) Opinion
                                                                                                                  ;:;:
                                                                                        t;) !,..;·�J ·:           ···!
                                  OPINION IN SUPPORT OF ORDER IN
                                                                                         -              ·'"il     ·-<
                                 COMPLIANCE WITH RULE 1925(a) OF
                               THE RULES OF APPELLATE PROCEDURE

                         This opinion is written in support of this court's judgment of sentence dated

         October 12, 2016. The relevant facts follow.

                        On April 18, 20 I 5 at approximately 2: 15 a.m., a shooting incident occurred
     !
     I   outside of Club Imbibe (hereinafter "Imbibe") on Pine Street in the city of Williamsport.
     i
         Appellant Michael Spencer (hereinafter "Appellant") had gotten into a disagreement with

         Tyree Green inside Imbibe. Appellant left Imbibe, retrieved a handgun, and returned to the

         area outside Imbibe. As it was just after closing, numerous individuals who had been patrons

         oflmbibe were standing or walking outside. Appellant started firing shots toward Tyree

         Green. Five innocent bystanders who happened to be standing or walking between Appellant

         and Tyree Green were shot and sustained various injuries.

                        On April 23, 2015, the police filed a criminal complaint against Appellant and

         obtained a warrant for his arrest. The police charged Appellant with two counts of attempted

         homicide, ten counts of aggravated assault, two firearm counts and related offenses.


                                                                                                                         1




I'
                                                                                                           ·t


                      On July 29, 2016, following a jury trial, Appellant was found guilty of, among

   other charges: count 1, criminal attempt to conunit homicide, 1 a felony of the first degree;

  counts 3, 5, and 9, aggravated assault (attempting to cause or causing serious bodily injury),2

· . -felonlcs of the first -dcgree; and count 12, aggravated assault (attempting to cause or causing

  bodily injury with a deadly weaponj.' a felony of the second degree. Although Appellant was

  found guilty of numerous other related charges, they are not relevant for the purposes of this

  Opinion.

                      On October 12, 2016, the court sentenced Appellant to an aggregate term of

  twenty-seven and a half (27Yz) years to fifty-five (5�) years of incarceration in a state

  correctional institution, which consisted of six (6) to twelve ( 12) years on count 1; six and a

  half (6 !4) to thirteen (13) years each on counts 3, 5 and 9; and two (2) to four (4) years on

  count 12. All of these sentences were consecutive to each other. The remaining sentences

  merged or were concurrent.

                      Due to a family medical issue, defense counsel requested an ex.tension to file

  Appellant's post-sentence motion within twenty (20) days of sentencing, which the court

  permitted. On October 31, 20161 defense counsel filed Appellant's post-sentence motion.

  The court denied the post-sentence motion in an Opinion and Order dated January 30, 2017.

                      Appellant filed a timely notice of appeal. ln his concise statement of errors

  complained of on appeal, Appellant asserts three issues:

                      1. The evidence submitted at the Appellant's trial in this matter was
                      insufficient to meet the Commonwealth's burden of proving that the
                      Appellant was the actor for each offense charged in the intormation

  1
      18 Pa, C.S.A. §903.
  218
  1
        Pa. C.S.A. §2702(a)(l).
      18 Pa. C.S.A, §2702(a)(4).
                                                                                                       2
                beyond a reasonable doubt.

                2. The verdict is against the. weight of the evidence because the
                Commonwealth's evidence did not identify the Appellant as the
                actor.

                3. The trial court erred in permitting the Commonwealth to admit
                into evidence at trial an audio recording of the [Appellant] discussing
                with a family member that he would be willingto accept a plea offer
                in the case for a minimum sentence of fifteen (15) years.


                Appellant first asserts that the evidence was insufficient to establish that he

was the actor for each offense charged In the Information. The court cannot agree.

                When reviewing a challenge to the sufficiency of the evidence, the court must

determine whether the evidence introduced at trial and all reasonable inferences derived from

that evidence, viewed in the light most favorable to the Commonwealth as the verdict winner,

was sufficient to establish beyond a reasonable doubt every element of the offense charged.

Commonwealth v. Hicks, l 56 A.3d 1114, 1123 (Pa. 2017); Commonwealttt v. Burno, 154

A.3d 764, 791 (Pa. 2017). 1iThe Commonwealth may sustain this burden of proof by wholly

circumstantial evidence, and the jury is free tobelieve all, part, or none of the evidence."

Hicks, supra.

                The Commonwealth presented abundant evidence to establish that Appellant

intentionally shot down the alleyway aiming to hit Tyree Green, missed him, and actually hit

numerous other individuals who were seriously injured as a result. Multiple witnesses

testified that.the individual in the white shirt was the shooter and identified Appellant as the

individual in the white shirt. Appellant admitted in his 'trial testimony that he was the
                                                                         ·h,·
individual in the white shirt. Appellant told Adrian Stafford that 11e was the shooter and also

                                                                                                   3
                                                                                                       -(




admitted such in a taped interview with the police. Appellant left the white shirt in the

vehicle Mr. Stafford was driving. Mr. Stafford turned the white shirt over to the police who

had it tested for gunshot residue. Furthermore, Appellant fled to Philadelphia> and instructed
                                             \



his cousin Bahteern Sims to retrieve the firearm and throw it in the river, evidencing his

consciousness of guilt.

               More specifically, Tyrone Green testified that his twin brother, Tyree, and the

person in the white shirt were arguing and trash talking. Tyrone Green saw the person in the

white shirt pointing in their direction. He saw sparks and heard five or six shots. He

identified Appellant as the black male in the white shirt. N.T., July 26, 2016, at 97-98, I 01,

I 03-104, 110, 114.

               Christopher Harrold testified that he witnessed Appellant shooting down the

alleyway. Mr. Harrold indicated that he was 100% sure that Appellant was the shooter. N.T.,

July 27, 2016, at 14, 27.

               When asked which of the people was firing the shots, Nathan Dunlap stated,

"someone had on a white t-shirt on the left side, the same side I seen the flashes." N. T., July

27, 2016, at 65.

               Lieutenant Arnold Duck, of the Williamsport Bureau of Police, testified that

he collected six spent .380 caliber shell casings, as well as a bullet and bullet fragments, from

the crime scene. N.T., July 27, 2016, at 49-50, 57-58.

               Corporal Elwood Spencer of the Pennsylvania State Police testified as the

Commonwealth's firearm and tool mark identification expert, Corporal Spencer testified that

the spent shell casings and the discharged and mutilated bullets were .380 caliber and

                                                                                                   4
'•
     discharged from the same unknown firearm. N.T., July 27, 2016, at 93�94, 97, 99.

                         Bahteem Sims testified that Appellant contacted.him by phone and told him

     the firearm was between some clothes in Appellant's closet in Mr. Sims' grandfather's

     house." Appellant told Mr. Sims to take the firearm and throw it in the river, Mr. Sims

     retrieved the firearm. It was a black, semiautomatic, .380 caliber handgun. Instead of

     throwing it in the river, though, Mr. Sims sold it. N.T., July 27, 2016, at 30�33.

                         Adrian Stafford testified that Appellant and a guy in a jean jacket got into a

     confrontation inside Imbibe. Mr. Stafford and Appellant left. Mr. Stafford drove Appellant

     to his uncle's house. Appellant went inside his uncle's house for about ten seconds, came out

     and got back into the car. They drove back and parked in a lot near Imbibe. They got out of

     the vehicle and started walking toward Imbibe. When they reached the concrete barriers, Mr.

     Stafford was standing next to Appellant. Appellant said "look, look," and Mr. Stafford heard

     rounds being fired. He and Appellant then returned to their car and pulled out. After they

     were buck inside the vehicle, Appellant admitted to Mr. Stafford that he did the shooting. Mr,

     Stafford also saw the gun. Later, Mr. Stafford drove Appellant to Philadelphia. Appellant left

     his white shirt in the rental vehicle Mr. Stafford was driving. Mr. Stafford gave the white

     shirt to Agent Raymond Kontz of the Williamsport Bureau of Police. N.T., July 26, 2016, at

     133-139, 150-151.

                         Appellant admitted that he was wearing a white t-shirt with a design on it that

     night. Appellant was living in Williamsport, splitting time staying at his uncle Herb Brown's

     residence on Pine Street and his uncle Kenny Spencer's residence on Baldwin Street. Mr.


     4
         Mr. Sims' grandfather is Appellant's uncle, Herb Brown.
                                                                                                          5
                                                                                                      (




Stafford dropped him off at the Pine Street residence and shortly thereafter Appellant walked

to the residence on Baldwin Street. Around 8 a.m. Stafford picked him up and drove him to

Philadelphia. Appellant also admitted that he called Bahteem Sims and asked him to dispose

of the firearm, but he claimed that he did so at the direction of Stafford. N.T. July 28, 2016,

at 52, 61�621 80, 82.

                Agent Kontz sent the white t-shirt for testing to determine ifthere was gunshot

residue (OSR) on it. N.T., July 27, 2016, at 73-74.

                Stephanie Horner testified as the Commonwealth's expert witness on GSR.

She used a scanning electron microscope to analyze the t-shirt for GSR. She found OSR on

the right side of the t-shirt. N.T., July 27, 2016, at 104, 108, 111.

               Appellant's uncle, Kenneth Spencer, testified that Appellant is right-handed,

N.T., July 28, 2016, at 102.

               Appellant also waived his Miranda rights and agreed to a taped interview with

Agent Kontz. Appellant initially denied being the shooter or even being present at Imbibe

that night. When the interview resumed after taking a cigarette break, however, Appellant

admitted that he was the shooter but claimed Stafford ("Johnny") gave him the gun and told

him to fire it at a group of black guys. Appellant claimed that he only did so because he was

afraid of Stafford and what Stafford would do to him and his family. During Agent Koutz'

testimony on July 28, 2016, the Commonwealth played the tape of the interview. N.T., July

28, 2016, at 24.

                Each aggravated assault victim also testified about being shot in the alleyway

and the injuries that they suffered as a result of being shot.

                                                                                                  6
                  When viewed in the light most favorable to the Commonwealth as the verdict

winner, there was ample evidence to prove beyond a reasonable doubt that Appellant was the

shooter or "actor."

                  Appellant next contends that the jury's verdict was against the weight of the

evidence. Initially, the court notes that Appellant has failed to properly preserve this claim

for appellate review. A challenge to the weight of the evidence must be raised with the trial

judge in a motion for a new trial either orally or in writing before sentencing or in n post-

sentence motion. PA. R. CIUM. P. 607(A). The court could not find anything in the record to

show Appellant challenged the weight of the evidence before sentencing. Although

Appellant filed a post-sentence motion, it did not contain a claim that the verdict was against

the weight of the evidence. The failure to present this claim to the trial judge in any manner

results in waiver. PA. R. APP. P. 302(a)("lssues not raised in the lower court are waived and

cannot be raised for the first time on appeal."),

               Even if this claim had been properly preserved, it lacks merit. "The factfinder

is free to believe all, part, or none of the evidence and to determine the credibility of the

witnesses. The trial court will award a new trial only when the jury's verdict is so contrary to

the evidence as to shock one's sense ofjustice." Commonwealth v. Diggs, 949 A.2d 873,

879 (Pa. 200�).

                A verdict is said to be contrary to the evidence such that it shocks
       one's sense of justice when "the figure of Justice totters on her pedestal," or
       when "the jury's verdict, at the time of its rendition, causes the trial judge to
       lose his breath temporarily, and causes him to almost foll from the bench,
       then it is truly shocking to the judicial conscience."

Comnumwealtlt v. Boyd, 73 A.3d 1269, 1274 .. 75 (Pa, Super. 2013)(qnoting Commonweaith


                                                                                                  7
                                                                                                         (




v. Cruz, 919 A.2d 179, 282 (Pa. Super. 2007), appeal denied, 928 A.2d 1289 (Pa. 2007)).
               The jury's verdict did not shock the court's conscience, The court has already

set forth much of the Commonwealth's evidence that established Appellant was the shooter.

In addition, Appellant's flight to Philadelphia, his telephone call to Bahteern Sims to dispose

of the firearm, and his statements to his uncle that he was willing to pl end guilty for a fifteen

year minimum sentence showed his consciousness of guilt. Appellant's trial testimony that

Stafford was the shooter and his explanations for his prior statements were not credible. It

did not shock the court in the least that the jury found Appellant guilty.

               Appellant' s final contention is that the court erred in permitting the

Commonwealth to admit into evidence at trial an audio recording of Appellant discussing

with a family member that. he would be willing to accept a plea offer in the case for a

minimum sentence of fifteen (15) years.

               During cross-examlnation of Appellant, he was questioned concerning n

conversation between he and his uncle which occurred while Appellant was incarcerated in

the Lycoming County Prison, He was asked whether he discussed with his uncle his

willingness to enter a plea for a minimum of fifteen (15) years.

               At the time, Appellant objected on the basis that the discussions were part of

"plea negotiations." N.T., July 28, 2016, at 94. The court overruled the objection noting that

Defendant's statement evidenced consciousness of guilt.

                In his post-sentence motion, Appellant asserted different objections.

Specifically, Appellant argued that he was in jail without bail and was "forced to discuss" the

plea with family members. Appellant argued that the admission of these statements would

                                                                                                     8
have a "chilling effect" on "required conversations." Furthermore, Appellant argued that the

statement was not consciousness of guilt because many defendants discuss plea offers with

family members. Finally, Appellant argued that the testimony was for too prejudicial.

                To the extent Appellant asserted any objections in his post-sentence motion

that were not preserved at trial, they are waived. PA. R. EVJD. 103(a}(l}; Commonwealth v.

Poplawski, 130 A.3d 697, 729 (Pa. 2015)(a failure to make a contemporaneous and specific

objection results in waiver of the objection). However, despite said waiver, the court will

address Appellant's arguments.

                Regardless of whether Appellant was incarcerated is not relevant to whether

his statement is consciousness of guiJt. Furthermore, despite his assertions to the contrary,

Appellant was not compelled to discuss the plea with family members over a telephone

system that he knew was recording his conversations. He could have discussed any plea offer

or his willingness to accept a plea through written correspondence or privately with counsel

and family members during court proceedings.

                A defendant's statements to someone other than the prosecutor and his
                                                                    '
counsel referencing a willingness to enter into a plea are not pleanegotiations and constitute

admissible confessions of guilt. Commonwealth v. Vim Divuer, 962 A.2d 1170) 1180-81 (Pa,

2009)(defendant made the following statements to a police officer which were not plea

negotiations but were relevant admissions of guilt: "This is a death penalty case and I don't

want the needle, life for life. Tell the [District Attorney] I will plead guilty for life. I would

have killed myself if I knew Michelle was dead").

                Appellant' s conversations with his family members were clearly not part of


                                                                                                     9
 enumerated Rules of Pennsylvania Criminal Procedure or their equivalent in another

 jurisdiction, and the prosecuting attorney was not a party to any of these conversations. See

 PA. R. Evm. 41 O(a). In fact, there is no evidence that the Commonwealth was interested in

 plea negotiations, let alone participated in plea negotiations. Therefore, Appellant's attempt

to cloak his voluntary admissions in the mantle of plea _bargaining is baseless. Furthermore,

Appellant's statements that he would enter a plea had significant probative value in light of

the fact that he previously denied having any culpability.




DATE:                                                 By The Court,




                                                      Marc F. Lovecchio, Judge


      ��in
cc:             Wade, Esquire (ADA)
        -Greta Davis, Esquire
      ·'1Work file
      /6ary Weber, Esquire (Lycoming Reporter)
       /s{perior Court ( original & 1)




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