J-S07011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

SAJAAD HALL,

                          Appellant                     No. 1729 EDA 2017


      Appeal from the Judgment of Sentence Entered January 12, 2017
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001164-2015


BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                             FILED MAY 21, 2018

      Appellant, Sajaad Hall, appeals from the judgment of sentence of life

incarceration, plus an additional 20 to 40 years, imposed after he was

convicted of first-degree murder and related offenses. Appellant challenges

the weight of the evidence to sustain his convictions, as well as the trial court’s

admission of certain evidence. After careful review, we affirm.

      The trial court summarized the facts of this case, as follows:

            On June 21, 2014[,] at around 11:30 p.m., [Appellant] was
      present at a block party with more than 300 people on the 700
      block of Montgomery Avenue in Philadelphia. At that time,
      [Appellant] fired eleven shots from a .45 caliber handgun at Virgil
      Ross because Ross had shot [Appellant] in the leg on a prior
      occasion. One bullet struck Ross in the back while another bullet
      struck Jameer Haynesworth, a bystander, in the head, severing
      his brainstem. [Appellant] then entered a vehicle and fled the
      area. Haynesworth was brought to Temple Hospital where he was
      pronounced dead within ten minutes of arrival….
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             Philadelphia police detectives then conducted an
      investigation of the shooting. As part of this investigation,
      eyewitnesses Dontay Williamson and Kyle [sic] Dais both
      identified [Appellant] as the shooter to police. [Appellant] was
      later arrested by members of the fugitive squad.

Trial Court Opinion (TCO), 8/16/17, at 1-2 (citations to the record omitted).

      Appellant was charged in two separate cases, one case pertaining to

victim Jameer Haynesworth, and one case pertaining to victim Virgil Ross, Jr.

The two cases were consolidated for a jury trial, which commenced on January

9, 2017. At the close thereof, the jury convicted Appellant of first-degree

murder and carrying a firearm without a license (victim Haynesworth), as well

as attempted murder and aggravated assault (victim Ross, Jr.). On January

12, 2017, Appellant was sentenced to a mandatory term of life incarceration,

without the possibility of parole, for his murder conviction, as well as a

consecutive 20 to 40 years’ incarceration for his attempted murder offense.

Appellant also received a concurrent sentence of 3 to 6 years’ incarceration

for his firearm crime. His aggravated assault conviction merged for sentencing

purposes.

      Appellant filed a timely post-sentence motion, which was denied. He

then filed a timely notice of appeal, but only in the case involving victim

Haynesworth.    On June 6, 2017, the trial court issued an order directing

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal within 21 days, or by June 27, 2017. However, Appellant did not

file his Rule 1925(b) statement until July 11, 2017. Nevertheless, the trial

court addressed the issues raised in Appellant’s untimely concise statement.


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Thus, we need not remand, and will examine the issues Appellant presents

herein. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super.

2012) (“When counsel has filed an untimely Rule 1925(b) statement and the

trial court has addressed those issues we need not remand and may address

the merits of the issues presented.”) (citing Commonwealth v. Burton, 973

A.2d 428, 433 (Pa. Super. 2009)).

      Appellant raises the following two claims for our review:

      I.    Was the verdict against the weight of the evidence where
            the only evidence presented against [Appellant] were
            recanted witness accounts?

      II.   Was the verdict tainted by the improper introduction of
            evidence that [Appellant] had been seen before with a gun
            more than once?

Appellant’s Brief at 5.

      First, Appellant contends that the jury’s verdict was contrary to the

weight of the evidence.

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well settled that the jury is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses, and a new trial based on a weight of
      the evidence claim is only warranted where the jury’s verdict is so
      contrary to the evidence that it shocks one’s sense of justice. In
      determining whether this standard has been met, appellate review
      is limited to whether the trial judge’s discretion was properly
      exercised, and relief will only be granted where the facts and
      inferences of record disclose a palpable abuse of discretion.




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Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Here, Appellant argues that the jury’s verdict was against the weight of

the evidence because it was premised only on the unreliable, out-of-court

statements of two witnesses, Khyle Dais and Dontay Williamson, who recanted

those statements at trial. Appellant claims that the out-of-court statements

of these witnesses were wholly unreliable, as they “had been held by police in

coercive circumstances for extended periods of time.” Appellant’s Brief at 16.

Appellant further contends that

      Dais testified unequivocally[] that he had not seen the shooting,
      and that the documents purporting to be his pre-trial statement
      were inaccurate. Dais explained that he had made the initial
      statement only after being held by police on an unrelated
      probation violation, and being detained by homicide detectives for
      18 hours. Dais testified that the police threatened to send him to
      prison if he did not agree with information that they provided to
      him, which implicated [Appellant] as the shooter. Certainly
      then[,] this statement, which was totally rejected by the witness
      at trial, was highly suspect and should give this Court pause.

             The only other evidence presented was the even more
      suspect statement of Williamson, who was only 15 years old at
      the time he spoke to police, was also held by homicide detectives
      for an unrelated juvenile matter and forced to spend the night in
      an interview room before he allegedly provided his statement
      incriminating [Appellant]. Of course, by Detective [Thomas]
      Gaul’s own admission, officers spoke with Williamson throughout
      the night while he was held, without a parent present and without
      recording the conversation, and discussed the case. Only after
      this long and coercive encounter, did Williamson purportedly
      adopt the statement implicating [Appellant].          Of course,
      Williamson also disavowed the initial account when he actually
      testified before the jury.




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               These two accounts should not form the basis of a conviction
       for which [Appellant] has been sentenced to spend the rest of his
       life [in] prison. Each witness claimed to have been coerced and
       threatened by the police to make statements, which they each
       recanted before the jury. The police even corroborated many of
       the coercive circumstances, such as the extended detention
       before the interviews and the pretextual reasons each man was
       held. On these facts, the witness statements should be rejected.

Id. at 17-18 (citations to the reproduced record omitted).

       After reviewing the record, we note that Appellant correctly states that

Dais and Williamson recanted their statements to police at trial, with both men

claiming that they did not witness the shooting. N.T. Trial, 1/11/17, at 20-

24, 95-97.1        Additionally, Dais and Williamson both testified that their

statements to police were involuntary, that the interviewing officers coerced

them with threats or promises, and that they only gave their statements under

duress after being detained for lengthy periods of time. Id. at 33, 56-57, 65-

69, 135, 148-49, 163.

       However, the Commonwealth presented evidence to contradict Dais’s

and Williamson’s allegations that their statements were involuntary.          For

instance, Detective Gaul, who was present during the interviews of these two

witnesses, testified that both men voluntarily answered the detectives’

questions and provided their statements without threat or coercion. See id.

at 204, 206. Each man also gave consent to have his statement video and

audio taped. Id. at 59, 135. Additionally, both Dais and Williamson completed

written statements, which they reviewed, made additions or corrections to,
____________________________________________


1 We note that Khyle Dais is sometimes referred to in the record as Khyle
Fikes-Dais, or Khyle Fikes.

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initialed each answer, and signed at the bottom of each page. Id. at 29-59,

132, 135-36.

      Moreover, in Dais’s written statement to police, he confirmed that no

one “from the Homicide Unit or the Philadelphia Police Department threatened

[him] or promised [him] anything in order for [him] to give [his] interview[.]”

Id. at 56, 206.    While Dais was detained for 18 hours prior to giving his

statement, he explained that he was held by police for his own, unrelated

criminal matters. See id. at 33. Moreover, at the start of Dais’s interview,

the detectives acknowledged that Dais had been “at the Homicide Unit for

approximately 18 hours[,]” and asked Dais if he “[c]ould … tell [the officer]

how [he felt] physically and mentally[,]” to which Dais replied, “I’m cool. I

did sleep off and on. I’m aware of what’s going on.” Id. The officer also

asked if Dais had “been given the opportunity to eat, drink, and use the

bathroom” while being held, and Dais confirmed that he had been provided

these things. Id. We also point out that during his interview, Dais indicated

that he was fearful of providing police with the statement, saying, “I just really

don’t need this interview getting out. I have a three-year-old daughter that

lives with me.” Id. at 35.

      Additionally, contrary to Appellant’s claim on appeal, Williamson’s father

was with Williamson during his first interview, id. at 116, and Williamson’s

mother accompanied him to his second interview, which was videotaped in

her presence, id. at 135. Both parents were asked to review Williamson’s

statements with him before he signed the statement at the end. Id. at 132,

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160.   Moreover, during Williamson’s interview, the detectives asked him if

“anyone from the Philadelphia Police Department or Homicide Unit threatened

[him] or promised [him] anything in order for [him] to give [his] interview,”

to which Williamson answered, “No.” Id. at 130-31. Williamson also indicated

that he was afraid that he “could get killed and his family could get hurt” if

people in the community discovered that he had talked to the police. Id. at

157.

       In light of this record, we ascertain no abuse of discretion in the trial

court’s rejection of Appellant’s weight-of-the-evidence claim. The jury heard

Dais’s and Williamson’s recantations, and considered their testimony that their

police statements were coerced. However, the jury was also presented with

evidence that Dais and Williamson voluntarily spoke with police, and recanted

those statements at trial out of fear.     The jury chose to believe the latter

evidence, and the trial court discerned nothing shocking about that fact. We

disagree with Appellant that the court abused its discretion in making this

decision. Therefore, his first issue is meritless.

       Appellant next challenges the trial court’s admission of evidence that he

had possessed a gun on a prior occasion before the at-issue shooting. Before

addressing Appellant’s specific argument, we note that,

       [t]he standard of review employed when faced with a challenge to
       the trial court’s decision as to whether or not to admit evidence is
       well settled. Questions concerning the admissibility of evidence
       lie within the sound discretion of the trial court, and a reviewing
       court will not reverse the trial court’s decision absent a clear abuse
       of discretion. Commonwealth v. Hunzer, 868 A.2d 498 (Pa.
       Super. 2005). Abuse of discretion is not merely an error of

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     judgment, but rather where the judgment is manifestly
     unreasonable or where the law is not applied or where the record
     shows that the action is a result of partiality, prejudice, bias or ill
     will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010).

     In this case, Appellant claims that a portion of Dontay Williamson’s out-

of-court statement to police should not have been admitted into evidence, as

it revealed to the jury that Appellant had previously possessed a firearm. In

particular, Appellant takes issue with the portion of Williamson’s statement

wherein Williamson told police that he had seen Appellant previously in

possession of a “silver and black handgun.” Appellant’s Brief at 25 (internal

quotation marks omitted). In concluding that this evidence was admissible,

the trial court applied the ‘similar weapon exception,’ which our Supreme

Court has elucidated as follows:

     A weapon not “specifically linked” to the crime is generally
     inadmissible; however, the fact “the accused had a weapon or
     implement suitable to the commission of the crime charged ... is
     always a proper ingredient of the case for the prosecution.”
     [Commonwealth v.] Robinson, [721 A.2d 344,] 351 [(Pa.
     1998)] (alteration in original) (citation and internal quotation
     marks omitted). “Any uncertainty that the weapon is the actual
     weapon used in the crime goes to the weight of such evidence.”
     Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251, 1260
     (1994) (citing Commonwealth v. Coccioletti, 493 Pa. 103, 425
     A.2d 387, 390 (1981)). “The only burden on the prosecution is to
     lay a foundation that would justify an inference by the finder of
     fact of the likelihood that the weapon was used in the commission
     of the crime.” [Commonwealth v.] Lee, [662 A.2d 645,] 652
     [(Pa. 1995)] (citing Commonwealth v. Thomas, 522 Pa. 256,
     561 A.2d 699, 707 (1989) (“If a proper foundation is laid, the
     weapon is admissible where the circumstances raise an inference
     of the likelihood that it was used.”)).



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Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 2015).

      In the present case, Appellant argues that the ‘silver and black handgun’

that Williamson said Appellant possessed previously was “simply not the

same” as the “black Glock” that witnesses claimed was used in the present

shooting. Appellant’s Brief at 25. Accordingly, Appellant contends that the

trial court erred by admitting this evidence.

      Initially, we conclude that Appellant waived his objection to Williamson’s

statement that Appellant previously possessed a ‘silver and black handgun.’

During trial, and outside the presence of the jury, the parties and the court

discussed certain objections to portions of Williamson’s statement to police.

One objection that Appellant raised was to the question, “Mr. Williamson, have

you ever seen Sajaad Hall with a gun?” and to Williamson’s answer, “Like once

or twice.”   N.T. Trial, 1/11/17, at 109.       Defense counsel stated that he

objected to that question and answer being read to the jury, “unless it’s

pertaining to this incident. It’s other crimes evidence.” Id. In response, the

trial court reasoned that the gun referred to by Williamson could have been

the weapon used to commit the instant crimes. Id. at 109-10. Thus, the

court permitted the at-issue question and answer to be read by the

Commonwealth during Williamson’s direct-examination.

      However, during Williamson’s direct-examination, the Commonwealth

also read the following question and answer from Williamson’s statement to

police:




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      [The Commonwealth:] “QUESTION: Mr. Williamson, could you
      describe the gun [that you saw Appellant previously possess]?”

      “ANSWER: It was silver and black, and it was the type of gun you
      put a clip in.”

Id. at 130. Notably, Appellant did not object to this question and answer

during the sidebar discussion of Williamson’s statement to police, nor at the

time the Commonwealth read this question and answer in front of the jury.

Thus, Appellant cannot now claim that the court erred by allowing this portion

of Williamson’s statement to police to be admitted into evidence.           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.”).

      In any event, we would disagree with Appellant that the admission of

this evidence was improper on the basis that the ‘silver and black handgun’

referred to by Williamson could not have been the ‘black Glock’ used in the

shooting.   In concluding that the ‘similar weapon exception’ applied to

Williamson’s statement, the trial court reasoned as follows:

             Here, the Commonwealth witness Dontay Williamson
      informed police that he had previously seen [Appellant] on one or
      two occasions in possession of a black and silver handgun of the
      type that has an ammunition clip. N.T. [Trial,] 1/11/17[,] at 129-
      30. On the day of the shootings here at issue, Williamson saw
      [Appellant] firing a gun that Williamson described as a black Glock
      with an extended clip. [Id.] at 147. Witness Kyle [sic] Dais
      described the gun fired by [Appellant] as a semi-automatic, which
      is the type of handgun that uses an ammunition clip. [Id.] at 41;
      N.T. [Trial,] 1/10/17[,] at 141-42.

            Accordingly, the gun observed by Williamson in
      [Appellant’s] possession prior to the shootings was completely
      consistent with the gun observed by Williamson and Dais that
      [Appellant] used on the day of the shootings. [Appellant’s]
      possession of a similar gun on prior occasions showed that he had

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      access to a weapon that could have been used to commit the
      crimes here at issue.

TCO at 9-10.

      Additionally, the Commonwealth argues that the fact “that Williamson

said the gun he saw firing at 11:30 p.m. [on the day of the at-issue shooting]

was black, rather than silver and black, does not disprove that it could have

been the murder weapon.” Commonwealth’s Brief at 12. The Commonwealth

stresses that,

      [t]he color of a gun is not immutable. The silver color may have
      been obscured by darkness; [Appellant’s] hand placement[;] …
      something else may have impaired Williamson’s ability to see the
      silver color; or [Appellant] may have covered the gun with paint
      or something else. The mere fact that Williamson did not mention
      seeing silver on the gun that night does not prove that [the prior
      gun he saw Appellant possess] could not have been the murder
      weapon. Any uncertainty was for the jury to resolve.

Id. at 11-12.

      We would agree with the trial court and the Commonwealth that the gun

described by Williamson as being previously possessed by Appellant could

likely have been the same gun used in the commission of the present offenses.

Thus, even had Appellant preserved his challenge to the admission of

Williamson’s at-issue statement, we would reject it as meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




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