J-S33036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RAHEEM ROBINSON                          :
                                          :
                    Appellant             :    No. 1870 EDA 2017

          Appeal from the Judgment of Sentence January 14, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0001523-2015


BEFORE:    OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JUNE 28, 2018

      Appellant, Raheem Robinson, appeals nunc pro tunc from the judgment

of sentence entered in the Court of Common Pleas of Philadelphia County after

a jury convicted him of first-degree murder, 18 Pa.C.S. § 2502, possession of

an instrument of crime (“PIC”), 18 Pa.C.S. § 907, and abuse of a corpse, 18

Pa.C.S. § 5510.    Sentenced to life imprisonment without the possibility of

parole for murder in the first degree, a concurrent term of two and one-half

years for PIC, and a consecutive term of one to two years for abuse of a

corpse, Appellant raises challenges to the sufficiency of the evidence and to

evidentiary rulings of the court. We affirm.

      The trial court aptly sets forth relevant facts and procedural history, as

follows:

      At trial, it was established that Defendant [hereinafter
      “Appellant”] and his companion, Sakinah Wyatt, were engaged in
      romantic activities in her bedroom on the second floor of 2533
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S33036-18


      North 11th Street, Philadelphia. Appellant heard noises, went to
      the bedroom door and through a crack in the door observed the
      deceased, Shaquille Hall [hereinafter “Hall”]. Several days before,
      Ms. Wyatt and Hall had met when Hall tried to sell her a cellular
      telephone plan.      Because Ms. Wyatt did not have proper
      identification, she told Hall to come to her house and she would
      provide her identification.

      Upon seeing Hall, Appellant became angry, pointed a gun at Ms.
      Wyatt and Hall, and [fatally] shot Hall. Appellant went to a
      neighborhood store. He was photographed by a security camera
      as he purchased bleach and other cleaning fluids. Appellant
      returned to the house, cleaned up the blood stains, wrapped Hall’s
      body in a sheet, bound it with duct tape, and left it in an alleyway.
      On May 1, 2014, children discovered the body in the alley behind
      the 2500 block of North 11th Street. The police were called to the
      scene.

      Dr. Albert Chu, Deputy Medical Examiner for the City of
      Philadelphia, testified that Hall suffered four gunshot wounds. A
      wound to the head and a wound to the chest were fatal. A third
      wound to the shoulder was potentially fatal. A graze wound to the
      right hand was not immediately life-threatening. (N.T. 1/6/15, at
      41-42).

      Fatimot Adekanmbi of the DNA laboratory of the Criminalistics Unit
      of the Office of Forensic Science, testified as an expert. She stated
      that samples taken from the house were tested for DNA and
      compared against DNA samples taken from Appellant, Ms. Wyatt,
      and Hall. The specimens either excluded Appellant or were
      inconclusive as to Appellant’s DNA. (N.T. 1/11/16, at 135-157).
      She explained, “Bleach would definitely kill DNA.” (N.T. 1/11/16,
      at 172).

      Appellant testified that he received a telephone call from a person
      named “Money,” who asked him to come to Ms. Wyatt’s residence.
      At the house, Appellant complied with Money’s request to help him
      (Money) dispose of the body. Appellant offered the testimony of
      two character witnesses.

Trial Court Opinion, filed 10/16/17, at 1-3.




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       As noted, above, a jury convicted Appellant of first-degree murder and

related charges, and the trial court imposed a mandatory sentence of life

imprisonment on the same day. This appeal, nunc pro tunc,1 follows.

       Appellant presents the following questions for our review:

       I.     DID THE TRIAL COURT ERR IN ALLOWING SAKINAH
              WYATT TO TESTIFY THAT SHE HAD PREVIOUSLY SEEN
              APPELLANT IN POSSESSION OF A FIREARM WHEN
              THERE WERE NO SIMILARITIES IN THE FIREARM
              DESCRIBED WHEN COMPARED TO THE FIREARM USED
              TO SHOOT DECEDENT [HALL], WHEN PRIOR
              POSSESSION OF A FIREARM HAD NO PROBATIVE
              VALUE, AND WHEN THIS TESTIMONY CAUSED
              IRREPERABLE HARM TO APPELLANT BY EFFECTIVELY
              PORTRAYING HIM AS A VIOLENT, HABITUAL GUN-
              CARRYING INDIVIDUAL?

       II.    WAS THERE INSUFFICIENT EVIDENCE TO SUSTAIN
              APPELLANT’S CONVICTION FOR MURDER IN THE
              FIRST DEGREE BECAUSE WHEN DECEDENT [HALL]
              WAS SHOT AND KILLED, APPELLANT WAS UNDER THE
              IMPRESSION THAT SAKINAH WYATT HAD JUST HAD
              SEXUAL   RELATIONS   WITH   DECEDENT[,]    AND
              APPELANT   AND   MS.   WYATT   WERE     IN   A
              RELATIONSHIP OF SORTS?


       III. DID THE TRIAL COURT ERR IN PRECLUDING TRIAL
            COUNSEL FROM ASKING SAKINAH WYATT IF SHE HAD
            LIED UNDER OATH WHEN MS. WYATT STATED THAT
            SHE WAS SCARED TO TELL THE TRUTH AS THIS WAS
            NOT EXCLUSIVELY JURY QUESTION [SIC] AND MS.
            WYATT    COULD   HAVE    TESTIFIED   IF  SHE
            INTENTIONALLY LIED UNDER OATH?




____________________________________________


1 Appellant’s direct appellate rights were reinstated nunc pro tunc after the
court granted his petition for such collateral relief.

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J-S33036-18


      IV.   DID THE TRIAL      COURT ERR IN PRECLUDING TRIAL
            COUNSEL FROM       ASKING SAKINAH WYATT IF THERE
            WAS ANYONE         WHO COULD CORROBORATE HER
            WHEREABOUTS         AND OTHER ASPECTS OF HER
            TESTIMONY?


      V.    DID THE TRIAL COURT ERR IN QUASHING A
            SUBPOENA FOR ADA ERIC STRYD WHEN HE WAS
            RESPONSIBLE     FOR   ADMISSIONS    TO    DRUG
            TREATMENT COURT, SAKINAH WYATT TESTIFIED
            THAT SHE WAS ADMITTED TO THIS PROGRAM
            DESPITE NOT HAVING A DRUGS [SIC] PROBLEM, AND
            APPELLANT WAS DENIED THE OPPORTUNITY TO
            FULLY TEST MS. WYATT’S CREDIBILITY AS A RESULT?

Appellant’s brief, at 4-5.

      In his first issue, Appellant argues the court erred when it granted the

Commonwealth’s motion in limine seeking permission to ask Sakinah Wyatt if

she had ever seen him with a gun before the incident in question.         N.T.,

1/5/16, at 25. Appellant does concede evidence of prior gun possession may

be admissible to show, inter alia, that a defendant has access to firearms, see

Commonwealth v. Stokes, 78 A.3d 644, 656 (Pa.Super. 2013), but he

nevertheless says that a Pa.R.E. 404 balancing of the evidence at issue shows

its prejudicial effect outweighed its probative value. Specifically, evidence of

prior possession suggested he was a “gun toting aggressor” inclined toward

violence, Appellant maintains, and it supported the notion that he acted not

under a sudden, uncontrollable passion but, instead, with requisite intent.

Appellant’s brief, at 9-10.

      Appellant’s argument is flawed in two respects. First, although the court

did permit the Commonwealth to ask Ms. Wyatt if she had previously seen


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Appellant in possession of a firearm, Ms. Wyatt’s answer benefitted Appellant.

Specifically, Ms. Wyatt testified that the night of the shooting was the first

time she had ever seen Appellant with a gun. N.T. 1/6/16, at 94. Therefore,

as no prejudice befell Appellant from the Commonwealth’s question,

Appellant’s Rule 404(b) argument is baseless.

      Moreover, Appellant’s prejudice argument is disconnected from the

defense he presented at trial, which was to offer a complete denial of having

shot Mr. Hall. As such, Appellant’s claim that the question of his prior gun

possession could have adversely affected a heat of passion defense is purely

academic and irrelevant where Appellant offered no such defense. Appellant’s

first issue, therefore, fails.

      In his next issue, Appellant challenges the sufficiency of evidence of

first-degree murder where he claims the evidence showing he acted under the

influence of a sudden, intense, and jealousy-fueled passion proved, at most,

voluntary manslaughter.

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention to
      human experience and the laws of nature, then the evidence is
      insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.




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Commonwealth v. Ortiz, 160 A.3d 230, 233–34 (Pa. Super. 2017) (quoting

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted)).

             Murder of the first degree is an “intentional killing,” which is
      defined, in part, as a “willful, deliberate, and premeditated killing.”
      18 Pa.C.S. § 2502(a), (d). However, “if at the time of the killing
      [the defendant] is acting under a sudden and intense passion
      resulting from serious provocation[,]” the defendant is guilty of
      voluntary manslaughter. 18 Pa.C.S. § 2503(a). In both crimes,
      the actor commits the act with the intent to kill. However, the
      difference    between      first-degree     murder   and     voluntary
      manslaughter is whether the actor committed the killings under a
      “sudden and intense passion resulting from serious provocation.”
      This Court has defined “passion” as:

            [A]nger and terror provided they reach a degree of
            intensity sufficient to obscure temporarily the reason
            of the person affected.... Passion, as used in a charge
            defining manslaughter ... means any of the emotions
            of the mind known as anger, rage, sudden resentment
            or terror, rendering the mind incapable of cool
            reflection....

Commonwealth v. Laich, 777 A.2d 1057, 1061 (Pa. 2001) (quoting

Commonwealth v. McCusker, 292 A.2d 286, 289 n. 4 (Pa. 1972)).

      The evidence at Appellant’s trial was sufficient to establish that

Appellant shot Mr. Hall with malice and the specific intent to kill, which are

requisite elements to a first-degree murder conviction. Specific intent to kill

can be inferred from the use of a deadly weapon upon a vital part of the

victim's body. Commonwealth v. Moore, 937 A.2d 1062, 1067 (Pa. 2007)

(citations omitted).




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     In Moore, the Supreme Court found the evidence was sufficient to

support the first-degree murder conviction. Id. The Court opined:

     The manner in which the victim was killed (two gunshot wounds
     to his back, one of which penetrated his heart) constitutes
     circumstantial evidence of malice and specific intent to kill on [the
     defendant's] part, and various aspects of subsequent conduct on
     [his] part, including his flight ... evidence his consciousness of
     guilt.

Id. (emphasis added). Furthermore, “[t]he law does not require a lengthy

period of premeditation; indeed, the design to kill can be formulated in a

fraction of a second.” Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa.

2013).

     Appellant maintains that he shot Mr. Hall in a sudden fit of rage, but

evidence admitted at trial contradicts this position.    Initially, we note our

jurisprudence recognizes the passion defense to first-degree murder when the

passion is in response to “serious provocation.” See Laich, supra. Here, Ms.

Wyatt testified Mr. Hall was merely present in her home as an invited guest

when Appellant shot him multiple times. Viewed in a light most favorable to

the Commonwealth as verdict winner, the evidence of Mr. Hall’s mere

presence did not constitute serious provocation for purposes of the heat of

passion defense to first-degree murder.

     Furthermore, testimony described how Appellant pointed the gun at

both Ms. Wyatt and Mr. Hall before he fired multiple times, but he chose to

single out Mr. Hall as his victim while sparing Ms. Wyatt’s life.      The jury

reasonably could have construed Appellant’s election in this regard as


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J-S33036-18



deliberative and premeditated. Accordingly, we discern no merit to Appellant’s

sufficiency claim.

      Next, Appellant argues that the trial court improperly limited cross-

examination of Commonwealth witness, Sakinah Wyatt, when it precluded

defense counsel from asking her if she lied under oath after she had stated

she was scared to tell the truth. The record shows Appellant mischaracterizes

the court’s ruling in this regard.

             The trial court has broad discretion regarding “both the
      scope      and    permissible    limits  of    cross-examination.”
      Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 335
      (2011). “The trial judge's exercise of judgment in setting those
      limits will not be reversed in the absence of a clear abuse of that
      discretion, or an error of law.” Id.

      ***
             Although the right of cross-examination is a fundamental
      right, it is not absolute. The trial court may place reasonable limits
      on defense counsel's cross-examination of a prosecution witness
      “based on concerns about, among other things, harassment,
      prejudice, confusion of the issues, the witness' safety, or
      interrogation that is repetitive or only marginally relevant.” Van
      Arsdall, 475 U.S. at 679, 106 S.Ct. 1431. “Generally speaking,
      the Confrontation Clause guarantees an opportunity for effective
      cross-examination, not cross-examination that is effective in
      whatever way, and to whatever extent, the defense might wish.”
      Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88
      L.Ed.2d 15 (1985).

Commonwealth v. Rosser, 135 A.3d 1077, 1087, 1088 (Pa.Super. 2016).

      The trial court permitted Appellant to cross-examine Ms. Wyatt on

whether she had been untruthful in one part of her previous day’s testimony.

Specifically, defense counsel asked Ms. Wyatt the following question:




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      DEFENSE COUNSEL: But yesterday, on the issue of why you did
      not go into your home that afternoon, you were scared to tell the
      truth on yesterday; is that right?

      MS. WYATT:          Yes.

N.T., 1/7/16, at 133.

      Defense counsel then pressed the matter by asking Ms. Wyatt whether

she “blatantly lied under oath?”, “[was] untruthful before these jurors?”, and

“was less than candid?”      Each question was met with a Commonwealth

objection for repetitiveness, which the court sustained. We discern no abuse

of discretion in the court’s ruling sustaining the objections, for the follow-up

questions were designed solely to elicit the same admission from Ms. Wyatt.

As Ms. Wyatt had already admitted to testifying falsely in this regard because

she feared retaliation from Appellant, the follow-up questions were repetitive

and properly precluded.

      In Appellant’s fourth issue, he challenges the court’s ruling sustaining

objections to a similar line of questioning, where counsel attempted to ask Ms.

Wyatt three questions on re-cross examination pertaining to her failure to

corroborate her whereabouts in the aftermath of the shooting. The court,

again, deemed the questions argumentative, and informed counsel he was

free to impeach Ms. Wyatt’s credibility in closing argument by arguing lack of

corroboration to the jury if the Commonwealth failed to present corroborative

evidence.   We agree and, therefore, discern no abuse of discretion in the

court’s ruling.




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      Finally, Appellant charges error with the court’s decision to quash a

defense subpoena for the prosecutor responsible for admissions to Drug

Treatment Court. Appellant sought the prosecutor to explain the criteria for

acceptance into Drug Treatment Court as a means to impeach Ms. Wyatt’s

credibility as a witness. Specifically, during Ms. Wyatt’s testimony on redirect

examination, she denied having a drug problem despite the fact that the court

granted her permission to enter Drug Treatment Court. N.T., 1/7/16, at 97-

98.   When asked to clarify the seeming contradiction, Ms. Wyatt testified she

entered the program only to avoid a felony conviction. Id.

      Appellant contends the prosecutor’s testimony was necessary to

impeach Ms. Wyatt’s credibility and to demonstrate Ms. Wyatt’s motive to

cooperate with the District Attorney’s Office. The court, however, opines, that

Ms. Wyatt’s admission already placed her credibility into question, as she

admitted she lied on an application in order to avoid a felony conviction.

      Our review of the record belies the crux of Appellant’s claim, for it shows

the court indicated it was “willing to give defense counsel the opportunity to

present what he says he needs to and what I think is fair[]” with respect to

presenting impeachment evidence on this issue. N.T. 1/12/16 at 132.           In

that regard, the court was referring to defense counsel’s concomitant request

to admit into evidence the Philadelphia Drug Treatment Court’s website, which

contained all the court’s criteria, directives, rules, and regulations regarding

entry into the program. Id. “So, if [defense counsel] wants to present that




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as part of his case, I’ll permit it. Otherwise, I’m just going to have one of the

DAs come in [and testify].” Id.

       The prosecution ceded to the court’s suggestion, and, critically, defense

counsel offered no objection to the court’s determination that the Drug

Treatment Court website and the subpoenaed prosecutor’s testimony would

be of equal impeachment value and were, thus, interchangeable. Id.2 The

court, therefore, quashed the defense subpoena only because it permitted

Appellant to introduce the Drug Treatment Court’s website as a functionally

equivalent source of proof that the program admitted only those with drug

abuse problems, contrary to Ms. Wyatt’s testimony.

       The record, therefore, belies Appellant’s claim that the court ultimately

quashed the defense subpoena over defense counsel’s objection.             Instead,

prior to the court’s ruling, defense counsel proposed the use of the Drug

Treatment     Court’s    website     to   accomplish   the   intended   purpose   of

impeachment, and the court indicated its intention to give defense counsel

what it requested. We also fail to see where, during the extensive discussion

on the issue, defense counsel argued that the prosecutor’s testimony was

relevant to show Ms. Wyatt’s motivation to cooperate with the DA’s Office, as

____________________________________________


2 We may conclude, therefore, that Appellant has waived this issue for review,
as “the failure to make a timely and specific objection before the trial court at
the appropriate stage of the proceedings will result in waiver of the issue.”
Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016). Even if
we did not deem this issue waived, we would find it unsupported by the record,
as we observe herein.


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Appellant now argues in his brief. See Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”).

For these reasons, we reject Appellant’s fifth and final claim.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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