J-S56015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARAK WILLIAMS

                            Appellant                No. 2266 MDA 2013


            Appeal from the Judgment of Sentence February 1, 2011
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001479-2009


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 31, 2014

        Appellant, Darak Williams, beat a three-year-old child to death.   He

appeals nunc pro tunc from the judgment of sentence for first-degree

murder entered February 1, 2011, by the Honorable Michael J. Barrasse,

Court of Common Pleas of Lackawanna County. We affirm.

         On February 21, 2008, three-year-old K.S. (the “victim”), who

appeared lifeless, and whose body exhibited signs of severe trauma, was

taken to Community Medical Center by Williams and the victim’s mother, co-

defendant Kashema Reddish. The victim was pronounced dead shortly after

her arrival. A subsequent autopsy attributed the cause of death to “multiple

traumatic injuries,” specifically to the back of the head.     After initially

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S56015-14



speaking with police, Williams and Reddish fled Lackawanna County, leaving

Reddish’s son in the custody of Children and Youth Services. Williams and

Reddish were later apprehended in Buffalo, New York, on March 8, 2009.

        Subsequent to his arrest, Williams was charged with Murder in the

First Degree,1 Murder in the Third Degree,2 and Endangering the Welfare of

a Child.3    The third-degree murder charge was withdrawn prior to trial.

Following a bench trial, on February 1, 2011, Williams was convicted of first-

degree murder and endangering the welfare of a child and sentenced to life

imprisonment. On April 28, 2011, Williams filed an untimely Post Sentence

Motion for Judgment of Acquittal, which the trial court denied following a

hearing. With the aid of newly appointed counsel, this nunc pro tunc appeal

followed.

        Preliminarily, we note that Williams has waived the challenges to the

weight of the evidence he raises in issues two through five. “[A] weight of

the evidence claim must be preserved either in a post-sentence motion, by a

written     motion    before    sentencing,      or   orally   prior   to   sentencing.”

Commonwealth v. Thomson, 93 A.3d 478, 490 (Pa. Super. 2014) (citing

Pa.R.Crim.P. 607).       Failure to do so will result in waiver of the claim on

appeal. See id.


____________________________________________


1
    18 Pa.C.S.A. § 2502(a).
2
    18 Pa.C.S.A. § 2502(c).
3
    18 Pa.C.S.A. § 4304.



                                           -2-
J-S56015-14



       Williams failed to raise a challenge to the weight of the evidence to

support his convictions either prior to sentencing or in his untimely post-

sentence motion filed April 28, 2011.4             Therefore, we are precluded from

reviewing these claims on appeal.

       The remaining issues Williams raises for our review are as follows:

       1. Whether there was sufficient evidence to convict [Williams]
       since the Commonwealth was unable to establish that [Williams]
       had exclusive custody of the victim at the time the fatal injuries
       were inflicted thereby making him responsible for the killing
       and/or showing he had the specific intent to kill or acted with
       requisite malice needed for conviction of First Degree Murder
       and/or Third Degree Murder?

                                      *        *    *

       6. Whether the trial court committed an error of law and/or an
       abuse of discretion in refusing [Williams’s] request for new,
       private counsel made prior to trial after expressing his lack of
       confidence in current counsel?


____________________________________________


4
   Williams’s untimely post-sentence motion requesting a judgment of
acquittal raised a challenge to the sufficiency of the evidence to support his
first-degree murder conviction. At the hearing held on the motion, the
Commonwealth argued that the motion sounded more as a challenge to the
weight of the evidence, rather than to the sufficiency of the evidence. See
N.T., Hearing, 6/3/11 at 5-6. Although the Commonwealth noted that it did
not object to arguing a challenge to the weight of the evidence, Williams did
not alter his claim to include a weight of the evidence challenge either at the
hearing or at any time thereafter. The trial court summarily dismissed the
motion at the conclusion of the hearing. See id. at 11. We do not find the
Commonwealth’s characterization of Williams’s argument sufficient to
preserve these claims on Williams’s behalf. At any rate, even if Williams had
raised a challenge to the weight of the evidence, the untimely nature of his
post-sentence motion would still have rendered those claims waived.




                                           -3-
J-S56015-14


       7. Whether the trial court committed an error of law and/or
       abuse of discretion in failing to issue a sua sponte declaration of
       mistrial on the false testimony provided by a key witness of the
       prosecution which ultimately had a substantial impact on the
       verdict?

       8. Whether the trial judge committed an abuse of discretion in
       failing to [sua sponte] recuse himself from the non-jury trial
       even though he presided over all pre-trial motions of both
       [Williams] and his Co-Defendant, and accepted the guilty plea
       from Co-Defendant who ultimately testified against [Williams] at
       his non-jury trial?

Appellant’s Brief at 5-6.

       Williams first argues that the evidence was insufficient to support his

conviction for murder in the first degree.5      We review a challenge to the

sufficiency of the evidence as follows.

       The standard we apply when reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying the above test, we
       may not weigh the evidence and substitute our judgment for the
       fact-finder. In addition, we note that the facts and circumstances
       established by the Commonwealth need not preclude every
       possibility of innocence. 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. The
       Commonwealth may sustain its burden of proving every element
       of the crime beyond a reasonable doubt by means of wholly
       circumstantial evidence. Moreover, in applying the above test,
       the entire record must be evaluated and all evidence actually
       received must be considered. Finally, the trier of fact while
       passing upon the credibility of witnesses and the weight of the
____________________________________________


5
  The charge of murder in the third degree was dropped prior to trial.
Therefore, we limit our discussion to the sufficiency of the evidence as it
relates to murder in the first degree.



                                           -4-
J-S56015-14


      evidence produced is free to believe all, part or none of the
      evidence. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused’s guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      “To obtain a first-degree murder conviction, the Commonwealth must

demonstrate that a human being was unlawfully killed, the defendant

perpetrated the killing, and that the defendant acted with malice and a

specific intent to kill.” Commonwealth v. Burno, 94 A.3d 956, 969 (Pa.,

2014) (citation omitted). “The Commonwealth may use wholly circumstantial

evidence to discharge its burden of showing the accused intentionally killed

the victim … and circumstantial evidence can itself be sufficient to prove any

or every element of the crime….” Commonwealth v. Perez, 93 A.3d 829,

841 (Pa. 2014).

      Williams first argues that the Commonwealth failed to establish that he

perpetrated the killing. See Appellant’s Brief at 19. In order to prove that

Williams was responsible for the victim’s death, the Commonwealth relied on

the principle that where an adult has sole custody of a child for a period of

time, and, during that time the child suffers wounds which unquestionably

are neither self-inflicted nor accidental, the evidence is sufficient to allow a

                                     -5-
J-S56015-14



jury to infer that the adult inflicted the injuries. See Commonwealth v.

Paquette, 301 A.2d 837, 840 (Pa. 1973).

      At trial, forensic pathologist Dr. Wayne Ross testified that the

traumatic injury which caused the victim’s death likely occurred within two

to three hours of the time when the victim arrived at the hospital at 4:07

p.m. See N.T., Non-Jury Trial, 1/27/11 at 56-57. It is undisputed that at

this point Williams had exclusive custody of the victim. However, Williams

relies upon testimony regarding the victim’s body temperature when she

arrived at the hospital to extrapolate that the injury could have occurred as

early as 7:00 a.m., when the victim’s mother was still at home and Williams

therefore did not have exclusive custody of the victim.      This argument is

unavailing. We reiterate that the Commonwealth need not preclude every

possibility of innocence. See Slocum.

      The trial court clearly resolved any conflicting evidence regarding the

time period in which the fatal injury occurred in favor of the Commonwealth.

Based upon Dr. Ross’s testimony, and viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, we find sufficient

evidence existed that that the injury occurred when the victim was in

Williams’s exclusive custody such that the court could properly infer that

Williams inflicted the injuries. See Paquette.

      Williams’s argument that the evidence failed to show that he

possessed the requisite specific intent to kill the victim is similarly without

merit. “Specific intent to kill can be proven where the defendant knowingly

                                     -6-
J-S56015-14



applies deadly force to the person of another.” Commonwealth v. Stokes,

78 A.3d 644, 650 (Pa. Super. 2013) (citation omitted). “The Commonwealth

can prove this specific intent to         kill from circumstantial evidence.”

Commonwealth v. Tharp, 830 A.2d 519, 523-524 (Pa. 2003) (citation

omitted).   The trial court stated its reasons for finding Williams guilty of

first-degree murder as follows:

     First, the forensic pathologist as well as the emergency room
     physician testimony is clear and unequivocal that the injuries
     that were inflicted upon [the victim], specifically, the diffuse
     axonal injury in the pons area of the brain, was so severe that
     she could not live beyond hours after the injury was inflicted.
     There is not a scintilla of medical evidence to the contrary that
     these injuries could have occurred earlier.

     The record is equally clear and without conflict that [Williams]
     had exclusive custody of [the victim] during the time period in
     which the doctor’s [sic] testified that the fatal injuries occurred.

     [Williams] has repeatedly indicated that he assumed parental
     guardian responsibility with regard to the victim that day.

     The question then in regard to first degree murder, the [c]ourt
     finds that the evidence was sufficient to show that [Williams’s]
     actions manifested a specific intent to kill given the brutality of
     the assault. A specific intent to kill is the state of mind which is
     a killing which is willful, deliberate and premeditated. Specific
     intent may be proven where the defendant knowingly applies
     deadly force to another person.

                          *           *            *

     If the deadly force is knowingly applied by the actor to the
     person of another, the intent to take a life is as evidence [as] if
     the actor stated the intent to kill at the time the force was
     applied.

     In addition, it’s based upon the number, type and severity of the
     victim’s injuries. In fact, I find sufficient evidence to find beyond
     a reasonable doubt that the defendant killed with malice.


                                     -7-
J-S56015-14


      The attack upon the brutal – the brutal assault upon the vital
      organs and the injuries that were the proximate cause of her
      death are clear by the testimony through the physicians and the
      experts.     As importantly, the extensive physical injuries
      [Williams] inflicted upon the child, his cold hearted failure to
      timely seek medical assistance and the contrary explanations
      that he offered as to how the child sustained her injuries were
      sufficient to support the inference that [Williams] killed the
      victim intentionally, deliberately, and with premeditation.

N.T., Non-jury Trial, 2/1/2011 at 2-5. The record supports the trial court’s

analysis.

      Dr. Ross testified that in addition to numerous healing bone fractures

and existing injuries, he observed over 50 different areas of fresh injury to

the child’s body, including fresh hemorrhages or bruises to the chest, back,

buttocks, lower legs, face, lips, and jaw, consistent with repeated blunt force

trauma. See N.T., Non-jury Trial, 1/27/11 at 12-19. Dr. Ross additionally

testified the victim exhibited fresh abrasions and bruising to her neck, and

that the mechanism of injury would be consistent with strangulation. See

id. at 20-21. All of these injuries occurred within less than 24 hours. See

id. at 12-21.    Most significantly, Dr. Ross testified that the victim had

suffered a fatal brain injury consistent with the application of extreme force

somewhere around 12:30 to 1:30 p.m., when she was in Williams’s

exclusive   custody,   and   that   the    victim would never   have   regained

consciousness after this injury. See id. at 51-57.

      Based upon the litany of traumatic injury inflicted upon vital parts of

the child victim’s body – and the traumatic head injury inflicted by Williams




                                          -8-
J-S56015-14



in particular – we do not hesitate to find the evidence sufficient to suggest a

specific intent to kill.

      Williams argues in his sixth issue raised on appeal that the trial court

violated his constitutional right to counsel when it denied his request for a

continuance to retain new private counsel. The decision to grant or deny a

request for a continuance is within the sound discretion of the trial court.

See Commonwealth v. Prysock, 872 A.2d 539, 541 (Pa. Super. 2009). A

court’s decision to deny a request for a continuance

      will be reversed only upon a showing of an abuse of discretion.
      As we have consistently stated, an abuse of discretion is not
      merely an error judgment. Rather, discretion is abused when the
      law is overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will, as shown by the evidence or the record....

Id. (internal citations and quotation marks omitted).

      Although the constitutional right to counsel guaranteed by both the

Sixth Amendment to the United States Constitution and by Article I, Section

9 of the Pennsylvania Constitution “entitle an accused to choose at his own

cost and expense any lawyer he may desire,” this right is not absolute. Id.

at 542 (citation omitted).

      Rather, the right of the accused to choose his own counsel, as
      well as the lawyer's right to choose his clients, must be weighed
      against and may be reasonably restricted by the state’s interest
      in the swift and efficient administration of criminal justice. Thus,
      this Court has explained that while defendants are entitled to
      choose their own counsel, they should not be permitted to
      unreasonably clog the machinery of justice or hamper and delay
      the state's efforts to effectively administer justice.



                                     -9-
J-S56015-14



Id. (internal quotes and citations omitted).

      On January 24, 2011, at the start of the second day of the bench trial,

the trial court indicated it had received a pro se letter from Williams stating

that he had paid for and retained new private counsel, and that he no longer

wished to proceed with his current private counsel, Carlos Martir, Esquire.

See N.T., Non-Jury Trial, 1/24/11 at 3. When colloquyed by the trial court,

Williams was unable to state with any specificity in what manner he deemed

counsel’s representation to have been deficient.     Attorney Martir testified

that he was willing and able to proceed with the trial without a continuance.

See id. at 6-8.    Further, Paul Walker, Esquire, the new private counsel

Williams purportedly retained, testified that he had never met with Williams

and had not been paid by Williams or a member of his family. See id. at 9.

Attorney Walker testified that he had received a phone call indicating

Williams’s interest in hiring his services but had not heard any more

thereafter.   See id.    Attorney Walker further stated that he had not

reviewed any evidence or discovery in the case, had not met with Williams

or his family, and had no connection to the case. See id. at 10.

      In denying Williams’s request for a continuance to retain new private

counsel, the trial court noted that it had previously permitted Williams’s

appointed counsel to withdraw so that Williams could retain Attorney Martir.

See id. at 15. The court further noted that Williams had never previously

indicated any objection to Attorney Martir’s representation, that Attorney

Martir was qualified and prepared to represent Williams at trial, and that the

                                    - 10 -
J-S56015-14



court found Williams’s request to be a bad faith dilatory tactic. See id. at

16.

       We find no abuse of discretion. The “right to counsel does not give [a

defendant] the right to delay the trial indefinitely because he is dissatisfied

with   competent     counsel   …   ready   and   willing   to   represent   him.”

Commonwealth v. Ingram, 591 A.2d 734, 738 (Pa. Super. 1991) (citation

and internal quotation marks omitted).        Given the wide latitude the trial

court had already given Williams regarding his retention of qualified private

counsel, and Williams’s failure to provide any substantial reason why his

current counsel was deficient, we cannot find that the trial court abused its

discretion in denying Williams a continuance in order to employ new private

counsel.

       Williams next argues that the trial court erred by failing to sua sponte

declare a mistrial based upon the allegedly false testimony of the victim’s

mother at trial.   See Appellant’s Brief at 44. Pennsylvania Rule of Criminal

Procedure 605 provides that a trial court may declare a mistrial only for

reasons of “manifest necessity.” Pa.R.Crim.P. 605(B).

           In criminal trials, 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 interest 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


                                     - 11 -
J-S56015-14


         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 resulting order is
         constrained to determining whether the court abused its
         discretion. Judicial discretion requires action in conformity
         with [the] law on facts and circumstances before the trial
         court after hearing and consideration. Consequently, the
         court abuses its discretion if, in resolving the issue for
         decision, it misapplies the law or exercises its discretion in
         a manner lacking reason.

Commonwealth v. Culver, 51 A.3d 866, 871 (Pa. Super. 2012) (citation

omitted).

      At trial, the victim’s mother denied that the victim exhibited any

injuries prior to the traumatic injury that caused the child’s death. Williams

contends that this testimony was directly rebutted by Dr. Ross’s testimony

that the victim’s body exhibited a history of chronic or healing injuries that

precipitated the traumatic injury inflicted on February 21, 2008.          See

Appellant’s Brief at 47. Williams maintains that the Commonwealth’s failure

to bring to light the alleged false testimony of its own witness amounts to

prosecutorial misconduct such that a new trial is necessary. See id. at 48.

      Williams’s claim is a thinly veiled attack on a witness’s credibility, the

determination of which “is within the sole province of the trier of fact who is

free to believe all, part or none of the evidence.”       Commonwealth v.

Tielsch, 934 A.2d 81, 94 (Pa. Super. 2007) (citation omitted).             It is

unwarranted and impractical to insist that a trial court declare a mistrial

whenever confronted with conflicting testimony. To do so would bring the



                                     - 12 -
J-S56015-14



judicial process to an utter standstill. Simply put, we cannot find that the

mere existence of conflicting testimony in a criminal case constitutes

manifest necessity such that a new trial is warranted. Therefore, the trial

court did not abuse its discretion in failing to sua sponte declare a mistrial.

      Lastly, Williams argues that Judge Barrasse abused his discretion in

failing to sua sponte recuse himself from the non-jury trial, after he

accepted co-defendant Kashema Reddish’s guilty plea to               involuntary

manslaughter. See Appellant’s Brief at 49. “As a general rule, a motion for

recusal must initially be directed to and decided by the jurist whose

impartiality is being challenged.” Tharp, 830 A.2d at 534 (citation omitted).

“Once a trial is complete with entry of a verdict or judgment, a party is

deemed to have waived his right to have a judge disqualified unless he can

meet the standard regarding after-acquired evidence, i.e. the evidence could

not have been brought to the attention of the trial court in the exercise of

due diligence and the existence of the evidence would have compelled a

different result in the case.” Id. (citation omitted).

      Here, Williams admittedly did not raise a recusal motion in the court

below. Moreover, he does not claim that his knowledge of the trial court’s

participation in the co-defendant’s guilty plea proceedings constitutes after-

acquired evidence that would have compelled a different result in the case.

Accordingly, we are constrained to find that Williams has waived his right to

seek the trial court’s recusal. See Tharp, supra.

      Judgment of sentence affirmed. Jurisdiction relinquished.

                                     - 13 -
J-S56015-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




                          - 14 -
