J-S91032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
AKEITA HARDEN                            :
                                         :
                   Appellant             :    No. 625 MDA 2016

         Appeal from the Judgment of Sentence December 2, 2015
            In the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0000558-2014


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED FEBRUARY 15, 2017

      Appellant Akeita Harden appeals from the judgment of sentence

entered by the Court of Common Pleas of Lebanon County after a jury

convicted Appellant of criminal homicide, attempted homicide, aggravated

assault, robbery, criminal conspiracy to commit the aforementioned crimes,

and various related charges. Appellant claims the Commonwealth failed to

establish that she acted with the requisite specific intent to be convicted as a

co-conspirator or an accomplice to homicide, aggravated assault or robbery.

After careful review, we affirm.

      On March 10, 2014, Officer James Gross responded to a report of a

possible shooting at 714 Fox Ridge Lane.       Upon his arrival at the scene,

Officer Gross observed a man walk out of the townhouse to which he was




* Former Justice specially assigned to the Superior Court.
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responding. Officer Gross asked the man to stop, but the man ignored this

request and entered a waiting red Cadillac SUV where a woman was seated

in the driver’s seat.   Officer Gross then saw another man leave the same

area.    At that point, Officer Gross withdrew his weapon and ordered the

second man to stop.      The second man also ignored Officer Gross and got

into the same SUV, which reversed out of the parking lot.

        Officer Gross followed the SUV, which led officers on a high speed

chase on Route 897 into Lebanon.            During the pursuit, Officer Gross

observed an object thrown from the car which was later identified as a

shotgun.     When the vehicle stopped on Guilford Street, the two male

passengers exited the vehicle and ran in different directions while the female

drove away in the SUV.       Officer Gross was able to apprehend one of the

male passengers two blocks away and identified him as Rick Cannon

(hereinafter “Cannon”).

        Officers were able to identify Appellant as the female driver after she

illegally parked the SUV in a residential property and ran away. When the

officers approached Appellant, she immediately claimed to have done

nothing wrong and asserted her boyfriend was abusing her. Upon searching

the SUV and the area from which the passengers fled, officers found cocaine,

a handgun, a key, a watch, a ring, a roll of duct tape, and the cell phone of

Appellant’s paramour, Eddie Williams (“Williams”).      The officers identified

Williams as the second male passenger in the SUV.                Williams was

apprehended months later in Philadelphia for a narcotics violation.

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       Parallel in time to this high speed chase, law enforcement officers

investigated the shooting reported at 714 Fox Ridge Lane and discovered

two male victims that had been shot in the head.      The victims were later

identified as Marcus Ortiz (“Ortiz”) and Keith Crawford (“Crawford”). While

Crawford survived the attack with serious injuries, Ortiz did not survive. Dr.

Supriya Kuruvilla performed Ortiz’s autopsy and concluded that the victim

sustained a contact gunshot wound to the head, resulting from a gun being

pressed against his head.

       Appellant was charged with criminal homicide, attempted homicide,

and several counts of aggravated assault, robbery, and criminal conspiracy

along with related charges. Appellant and Williams were tried in a joint jury

trial which commenced on October 5, 2015. The Commonwealth’s theory of

the case was that Williams and Appellant conspired to rob and murder

Crawford, as the prosecution indicated that the evidence would show that

the three individuals were involved in a drug dealing enterprise and

disagreed about how their profit should be distributed.

       The Commonwealth presented the testimony of Jackie Brooks, who

allowed Appellant to stay overnight in her home the night before the

murder.1    Brooks knew Appellant was in a relationship with a man named


____________________________________________


1
  Although the prosecution offered the testimony of numerous witnesses to
support its case, we have only summarized the testimony that is relevant to
Appellant’s claim on appeal.



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“Jamal” and indicated that Appellant has the name “Jamal” tattooed on her

arm. Brooks agreed to allow Appellant to borrow her red Cadillac SUV the

next morning.     At approximately 10:30 a.m. on the day of the victims’

murder, Appellant called Brooks and indicated that she and Williams had

been shot at in Brooks’s vehicle. Appellant told Brooks to report the vehicle

as stolen as she and Williams had abandoned it after fleeing the scene.

      Amanda Gaderon testified that she was in a relationship with Crawford

at the time of the shooting. She was able to identify the ring, watch, and

keys that officers found in their investigation of the fleeing SUV as belonging

to Crawford. Gaderon admitted that Crawford and Williams were partners in

a drug dealing business, where Crawford supplied the drugs and the two

men dealt them. Gaderon indicated that Crawford paid rent for Williams and

Appellant’s apartment. However, after Williams and Crawford had a heated

phone conversation, the men ceased all contact by February 2014.

      Brian Eisenhour testified that he owned a particular rental property in

Lebanon where Crawford was previously a tenant. Crawford suggested that

Eisenhour rent to his cousin named “Jamal;” but Jamal and his girlfriend did

not pay rent regularly.       Eisenhour would seek rent from Crawford.

Eventually, Eisenhour evicted Jamal and his girlfriend from the apartment for

their failure to pay rent.

      Detective Michael DiPalo testified that he interviewed Appellant upon

her arrest. Appellant claimed on the day of the murder, she took the red

SUV to pick up her son in Harrisburg. She also indicated that she picked up

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two men: Anthony Johnson and his cousin, “Tank.” She indicated that they

went   to   Crawford’s   apartment   where   Crawford,   Johnson,   and   Tank

proceeded to make drugs. While Appellant waited in the SUV, Johnson and

Tank left the apartment and ordered her to drive away. Appellant claimed

that both men escaped without capture.

       Detective DiPalo read into evidence a letter written by Appellant to an

individual named Hotters.    In the letter, Appellant discussed her financial

troubles, indicating that “niggas…was fucking money up in a time that we

needed all but for months. Shit was getting fucked up. Bonds and loyalties

was being broken. It was just a hard month, February to March.” N.T. Trial,

10/7/15, at 481. Appellant also admitted that she knew Williams intended

to confront Crawford “about money being fucked up and the work, and he

felt like he was bringing new niggas in at a time when shit was all fucked

up…” N.T. Trial, 10/7/15, at 487. Moreover, Detective DiPalo indicated that

he was able to retrieve from Appellant’s cell phone multiple text messages

sent on the night before the victim’s murders between Appellant and

Cannon.

       Crawford testified at trial and indicated that Williams was the

individual who shot him and stole his watch and ring. In addition, Crawford

also asserted that both Appellant and Cannon were present at his apartment

on the morning of the shooting.

       Appellant testified in her own defense.       She acknowledged that

Williams and Crawford were partners in a drug dealing enterprise and

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admitted that the men often fought over money issues related to their

business.   Appellant conceded that she was involved in the partnership as

she would frequently drive Williams to make “drop-offs with money and

drugs.” N.T. Trial, 10/9/16, at 774. She recalled that she traveled to New

York City with Williams and Crawford to buy kilos of cocaine and transport it

back to Lebanon.        Appellant indicated that she and Williams were at

Crawford’s home every day where the men would cook up crack cocaine,

package the drugs, and divide them amongst themselves.

      However, Appellant shared that she believed Williams should end the

partnership with Crawford and start his own drug dealing business.

Appellant explained that she felt Crawford was “flashy” and “arrogant” with

his wealth, buying expensive cars and jewelry. N.T. Trial, 10/9/16, at 832.

At the time of the murder, Appellant was pregnant with Williams’s child, she

had no car, and was living with her mother.        Appellant conceded that

Williams told her that Cannon, Williams’s cousin, robbed drug dealers. She

admitted that on the morning of the murder, she drove Williams and Cannon

to Crawford’s place in the early morning hours, when she had never done so

before this occasion.

      On rebuttal, Detective DiPalo testified and entered into evidence

portions of an interview Appellant gave to police on March 21, 2014. See

N.T. 10/12/16, at 1028-1038.      On the recording, Appellant admitted that

she overheard Williams and Cannon discussing a plan to rob and murder

Crawford approximately one to two weeks before Crawford’s death.

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      At the conclusion of the trial, the jury convicted Appellant of murder in

the second degree and found her guilty on all the other charges.             On

December 2, 2015, the trial court sentenced Appellant to life imprisonment.

The same day, Appellant filed a post-sentence motion, which the trial court

denied on March 21, 2016.       Appellant filed a timely notice of appeal and

complied with the trial court’s direction to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises one multi-faceted claim on appeal, arguing that “the

Commonwealth’s evidence failed to establish that Appellant acted with the

required specific intent to conspire or be an accomplice in the commission of

murder, aggravated assault, or robbery.”        Appellant’s Brief, at 6.     Our

standard of review for a sufficiency challenge is as follows:

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence admitted at trial, and all reasonable
      inferences drawn from that evidence, when viewed in the light
      most favorable to the Commonwealth as verdict winner, was
      sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Rayner, ---A.3d---, 2016 WL 7474406 (Pa. Super. filed

Dec. 29, 2016).

      To sustain a conviction for second-degree murder, the Commonwealth

must prove beyond a reasonable doubt that the defendant committed

homicide while “engaged as a principal or an accomplice in the perpetration



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of a felony.”    18 Pa.C.S. § 2502(b).    Section 2502(d) of the Crimes Code

further defines “perpetration of a felony” as “[t]he act of the defendant in

engaging in or being an accomplice in the commission of, or an attempt to

commit, or flight after committing, or attempting to commit robbery, rape,

or deviate sexual intercourse by force or threat of force, arson, burglary or

kidnapping. 18 Pa.C.S. § 2502(d).

      Appellant was charged with robbery under Section 3701(a)(1)(i) which

states that a “person is guilty of robbery if, in the course of committing a

theft, he … inflicts serious bodily injury upon another.” 18 Pa.C.S. § 3701.

In addition, Appellant was charged with aggravated assault under Sections

2702(a)(1) and (a)(4) of the Crimes Code. To sustain a conviction for

aggravated assault under Section 2702(a)(1), the Commonwealth must

prove beyond a reasonable doubt that the defendant “attempt[ed] to cause

serious bodily injury to another, or cause[d] such injury intentionally,

knowingly   or     recklessly   under    circumstances   manifesting   extreme

indifference to the value of human life.”       18 Pa.C.S. § 2702(a)(1).       To

sustain a conviction for aggravated assault under Section 2702(a)(4), the

Commonwealth must prove beyond a reasonable doubt that the defendant

attempt[ed] to cause or intentionally or knowingly cause[d] bodily injury to

another with a deadly weapon.” 18 Pa.C.S. § 2702(a)(4).

      Although Appellant was not the principal actor in shooting Crawford

and Ortiz, the Commonwealth charged Appellant for these crimes as a co-




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conspirator and an accomplice. Section 903 of the Crimes Code defines the

crime of conspiracy:

     (a) Definition of conspiracy.– A person is guilty of conspiracy
     with another person or persons to commit a crime if with the
     intent of promoting or facilitating its commission he:

        (1) agrees with such other person or persons that they or
        one or more of them will engage in conduct which
        constitutes such crime or an attempt or solicitation to
        commit such crime; or

        (2) agrees to aid such other person or persons in the
        planning or commission of such crime or of an attempt or
        solicitation to commit such crime.

18 Pa.C.S. § 903(a)(1)–(2). This Court has provided that:

     [t]o sustain a conviction for criminal conspiracy, the
     Commonwealth must establish that the defendant (1) entered
     into an agreement to commit or aid in an unlawful act with
     another person or persons, (2) with a shared criminal intent and
     (3) an overt act was done in furtherance of the conspiracy. This
     overt act need not be committed by the defendant; it need only
     be committed by a co-conspirator.

     The essence of a criminal conspiracy is a common
     understanding, no matter how it came into being, that a
     particular criminal objective be accomplished. Therefore, a
     conviction for conspiracy requires proof of the existence of a
     shared criminal intent. An explicit or formal agreement to
     commit crimes can seldom, if ever, be proved and it need not
     be, for proof of criminal partnership is almost invariably
     extracted from the circumstances that attend its activities. Thus,
     a conspiracy may be inferred where it is demonstrated that the
     relation, conduct, or circumstances of the parties, and the overt
     acts of the co-conspirators sufficiently prove the formation of a
     criminal confederation.

Commonwealth v. Knox, 50 A.3d 732, 740 (Pa.Super. 2012) (citations

omitted).   We emphasize that “[w]here the existence of a conspiracy is


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established, the law imposes upon a conspirator full responsibility for the

natural and probable consequences of acts committed by his fellow

conspirator or conspirators if such acts are done in pursuance of the

common design or purpose of the conspiracy.” Commonwealth v. Fisher,

622 Pa. 366, 377, 80 A.3d 1186, 1192 (2013).

     An accomplice may also be held legally accountable for the conduct of

another individual involved in the commission of a crime. See 18 Pa.C.S. §

306(b)(3). The Crimes Code defines an accomplice as follows.

     A person is an accomplice of another person in the commission
     of an offense if:

        (1) with the intent of promoting or facilitating the
        commission of the offense he:

           (i) solicits such other person to commit it; or

           (ii) aids or agrees or attempts to aid such other
           person in planning or committing it; or

        (2) his conduct is expressly declared by law to establish his
        complicity.

18 Pa.C.S. § 306(c).   This Court has further explained that:

     [b]oth requirements may be established wholly by circumstantial
     evidence. Only the least degree of concert or collusion in the
     commission of the offense is sufficient to sustain a finding of
     responsibility as an accomplice. No agreement is required, only
     aid.

     To establish complicity, mere presence at the scene of a crime
     and knowledge of the commission of criminal acts is not
     sufficient. Nor is flight from the scene of a crime, without more,
     enough. However, those factors combined, along with other
     direct or circumstantial evidence may provide a sufficient basis


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      for a conviction, provided the conviction is predicated upon more
      than mere suspicion or conjecture.

Knox, 50 A.3d at 739 (citations omitted).

      In reviewing the evidence presented at trial, we find that the

Commonwealth      presented   sufficient   evidence   to   sustain   Appellant’s

convictions for acting as conspirator and an accomplice to murder, robbery

and aggravated assault. We find the trial court aptly stated its reasons for

upholding Appellant’s convictions as follows:

      In reviewing this matter, taking the facts in the light most
      favorable to the Commonwealth as the verdict winner, it is
      apparent that there was sufficient evidence presented to find
      [Appellant] guilty of the charged crimes. As previously stated,
      the co-conspirator rule establishes that a co-conspirator is liable
      for the acts of his/her co-conspirators that are the natural and
      probable result of the conspired acts. A natural and probable
      result of a robbery, conducted with a gun, is a killing of another
      individual.    Shooting an individual, while not killing said
      individual, but resulting in serious bodily injury, would similarly
      be a natural and probable result of a conspired robbery at gun
      point.

      In examining the existence of the conspiracy to commit a
      robbery and a murder, the evidence indicates that [Appellant]
      overheard a discussion between [Williams] and Cannon related
      to robbing and murdering Crawford, which took place a week to
      two weeks before March 10, 2014. [Appellant] was aware that
      Cannon was known to rob people, especially drug dealers.

      With that knowledge, [Appellant] agreed to drive [Williams] and
      Cannon to Crawford’s apartment in the early morning hours of
      March 10, 2014. Evidence and testimony was presented that
      there were multiple calls and text messages from [Appellant’s]
      phone to Cannon, the night before the shooting. [Appellant]
      further indicated that she had never taken Cannon to Crawford’s
      apartment, this would be Cannon’s first time going to Crawford’s
      place. [Appellant] testified that when she was waiting in the
      SUV outside of Crawford’s apartment, she heard gunshots and


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      subsequently saw [Williams] come out of the apartment carrying
      a paper bag.

      The presented evidence is sufficient to determine that a
      conspiracy existed to rob and murder Crawford. From the
      evidence, the Jury could determine that [Appellant] knew
      [Williams] and Cannon were planning to rob and murder
      Crawford through [Appellant’s] actions and comments to the
      police. Furthermore, [Appellant] acted in furtherance of the
      conspiracy with the shared intent to aid the conspiracy by
      driving [Williams] and Cannon to Crawford’s apartment, and
      subsequently acting as the getaway driver of the SUV.

      Additionally, as stated above, [Appellant] was charged and found
      guilty as an accomplice. The same facts that are sufficient in
      determining [Appellant’s] culpability as a co-conspirator are
      sufficient in determining [Appellant’s] culpability as an
      accomplice. As previously stated[,] mere presence at the scene
      of a crime and knowledge of the commission of criminal acts, or
      flight from the scene of a crime, are not sufficient in and of itself,
      to prove culpability as an accomplice without more evidence.

      However, in the matter sub judice, there was additional
      circumstantial evidence from which the jury could determine
      [Appellant’s] culpability as an accomplice for the charged crimes.
      [Appellant] was present at the scene of the crime, [Appellant]
      was aware that [Williams] and Cannon had previously discussed
      robbing and murdering Crawford, Cannon had never been to
      Crawford’s apartment before March 10, 2014, [Appellant] knew
      that [Williams] always carried a black handgun with him,
      [Appellant] saw the shotgun in the SUV and [Appellant] was the
      driver of the getaway car.

T.C.O. at 13-15 (citations omitted).       Accordingly, we reject Appellant’s

challenge to the sufficiency of the evidence as meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2017




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