J-S68001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

RASHEEM HALL,

                            Appellant                   No. 3161 EDA 2012


       Appeal from the Judgment of Sentence entered December 14, 2010,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0010569-2009
                          and CP-51-CR-0010570-2009


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED OCTOBER 24, 2014

        Rasheem Hall (“Appellant”) appeals from the judgment of sentence

entered after a jury convicted him of first-degree murder, aggravated

assault, criminal conspiracy, possessing an instrument of crime, and

violation of the Uniform Firearms Act.1        Appellant’s convictions arose from

his involvement in a shootout on a residential street in Philadelphia.

        The trial court explained the procedural history of this case as follows:

              On August 26, 2010, [Appellant] was found guilty by a jury
        … on case no. CP 51 CR 0010570 2009 of: First Degree
        Murder, as a felony of the first degree; Criminal Conspiracy, as a
        felony of the first degree; Possession of an Instrument of Crime
        (PIC), as a misdemeanor of the first degree; and, Violation of
        the Uniform Firearms Act section 6108 (VUFA 6108), as a
        misdemeanor of the first degree. He was found guilty on case
____________________________________________


1
    18 Pa.C.S.A. §§ 2502, 2702, 903, 907 and 6108.
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      no. CP 51 CR 0010569 2009 of Aggravated Assault, as a
      felony of the first degree.

            On December 14, 2010, [Appellant] was sentenced to a
      mandatory sentence of life imprisonment without the possibility
      of parole for the First Degree Murder conviction; five (5) to ten
      (10) years’ incarceration for the Criminal Conspiracy conviction;
      two and one-half (2½) to five (5) years’ incarceration for the PIC
      conviction; two and one half (2½) to five (5) years’ incarceration
      for the VUFA 6108 conviction; and five (5) to ten (10) years’
      incarceration for the Aggravated Assault conviction.            All
      sentences to run concurrently.

            On March 2, 2011, [Appellant] filed a petition under the
      Post Conviction Relief Act (PCRA) claiming ineffective assistance
      of counsel for failure to file a post-sentence motion and a direct
      appeal. [FN1 It should be noted that Bernard Siegel, Esq.,
      [Appellant’s] trial counsel is deceased.]

            On May 22, 2012, PCRA counsel was permitted to
      withdraw.

            On May 29, 2012, new PCRA counsel was appointed.

            On October 22, 2012, by agreement, the PCRA petition
      was granted in part and denied in part. The PCRA court ordered
      [Appellant’s] direct appellate rights reinstated and denied
      [Appellant’s] request to file post sentence motions nunc pro
      tunc.

           On November 19, 2012, [Appellant] filed the instant
      appeal.

            On June 27, 2013, [Appellant] filed a 1925(b) statement[.]

Trial Court Opinion, 9/5/13, at 1-2 (bold in original).

      Appellant raises two issues for our review:

         I. Is [Appellant] entitled to an arrest of judgment on all
            charges including Murder in the First Degree, Criminal
            Conspiracy, Aggravated Assault, PIC and VUFA, where the
            evidence is insufficient to sustain the verdict because (1)
            the Commonwealth did not prove by sufficient evidence or
            beyond a reasonable doubt that [Appellant] was a
            principal, accomplice or a criminal conspirator to any crime

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            and (2) where the Commonwealth did not prove beyond a
            reasonable doubt that [Appellant] had failed to act in self-
            defense?

      II.   Is [Appellant] entitled to a new trial where the verdict is
            not supported by the greater weight of the evidence but
            rather, where the verdicts rests [sic] on speculation,
            conjecture and surmise?

Appellant’s Brief at 3.

      In his first issue, Appellant challenges the sufficiency of the evidence.

Our standard of review is well-settled:

      When evaluating a sufficiency claim, our standard is whether,
      viewing all the evidence and reasonable inferences in the light
      most favorable to the Commonwealth, the factfinder reasonably
      could have determined that each element of the crime was
      established beyond a reasonable doubt. This Court considers all
      the evidence admitted, without regard to any claim that some of
      the evidence was wrongly allowed.         We do not weigh the
      evidence or make credibility determinations. Moreover, any
      doubts concerning a defendant’s guilt were to be resolved by the
      factfinder unless the evidence was so weak and inconclusive that
      no probability of fact could be drawn from that evidence.

Commonwealth v. King, 990 A.2d 1172, 1178 (Pa. Super. 2010) (internal

citations omitted).

      Appellant summarized his argument:

      The Commonwealth did not prove beyond a reasonable doubt
      nor by sufficient evidence that [Appellant] shot and killed anyone
      nor shot and wounded anyone. The Commonwealth did not
      prove that he acted as a criminal conspirator nor as an
      accomplice. The only Commonwealth’s evidence demonstrated
      was that [sic] [Appellant] was attempting to protect himself after
      being shot at on the public street by others.

Appellant’s Brief at 7.




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     Appellant’s trial lasted four days.     The trial court recounted the

testimony as follows:

           [Appellant] was arrested on August 4, 2008 after multiple
     attempts by the Fugitive Squad and other law enforcement
     agencies to locate him. (Notes of Testimony, Trial (Jury) Volume
     1, August 24, 2010, pages 40 – 52).

           Police Officer Nona Stokes testified that on May 20, 2007,
     she received a report of shots fired in the area of 16th and York
     Streets in Philadelphia. When she arrived on the scene, she saw
     a female, later identified as Charlene McDonald, standing on the
     corner of 16th and York Streets, bleeding from a gunshot wound
     to her leg. Officer Stokes was advised that another shooting
     victim, later identified as Ronald Kennel, (hereinafter referred to
     as the decedent), was lying in the street in front of 1601 North
     York Street, with a gunshot wound to his head. Medic units
     transported Ms. McDonald and the decedent to Temple Hospital.
     Officer Stokes went to Temple Hospital where she interviewed
     Ms. McDonald and a witness by the name of Tracey Lester. Ms.
     Lester told Officer Stokes at the hospital that she saw the
     shooting and identified “Dave” (later identified as David Satchell,
     hereinafter referred to as Satchell) and “Rasheem” (hereinafter
     referred to as [Appellant], as the shooters. (NT, id, pages 62 –
     71, 73).

           Tracey Lester testified at the [Appellant’s] trial that on May
     20, 2007, she was at a block party on the 2400 block of Bancroft
     Street in Philadelphia.     She was standing in the middle of
     Bancroft Street when she saw the [Appellant], Satchell and other
     boys walking west on Cumberland Street going toward 17 th
     Street. She has known the [Appellant] and Satchell for years.
     She heard people screaming, “They have guns. Get the kids in
     the house”. Seconds later, she heard gunshots coming from
     around the corner. She ran into her house at 2402 Bancroft
     Street. Satchell and two other males ran up Bancroft Street.
     Satchell ran onto her porch with a gun in his hand. She blocked
     the door so he could not get inside her house. Without being
     asked, she volunteered testimony that the [Appellant] was not
     one of the other two (2) boys she saw running with Satchell up
     Bancroft Street. (NT, id, pages 82 – 88).




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           Ms. Lester denied that she told Officer Stokes at Temple
     Hospital that [Appellant] was one of the males she saw running
     with Satchell. She testified that she never spoke to Officer
     Stokes but only to the two (2) homicide detectives at the
     homicide unit. (NT, id, page 89).

            In her statement to Homicide Detectives, Ms. Lester
     identified the two (2) males running from the scene with guns in
     their hands as [Appellant] and Satchell. She described the gun
     that Satchell was carrying as a silver, .9mm with a black handle
     and that [Appellant] was holding the gun he was carrying, down
     to his side as he was running. She also indicated that she had
     seen [Appellant] with a gun on a previous occasion. (NT, id,
     pages 97 – 103).

            Ms. Lester testified at Satchell’s preliminary hearing and
     trial and at [Appellant’s] preliminary hearing. In each of those
     proceedings, she testified that she saw [Appellant] with a gun
     immediately after she heard gunshots coming from around the
     corner. At [Appellant’s] preliminary hearing, she testified that
     minutes after the shooting stopped she saw [Appellant] running
     up Bancroft Street with a big silver gun in his hand. (NT, id,
     pages 92 – 117).

           Charlene McDonald testified that she was standing at 16th
     and York Streets waiting for the bus on May 20, 2007. She
     heard a gunshot and started to run and then fell to the ground.
     She had a gunshot wound to her right tibia. She was in the
     hospital for two (2) days and had physical therapy for the next
     two (2) months. She still has pain and experiences discomfort in
     doing everyday activities. (NT, id, pages 133 – 135).

           Derrick Williams testified at [Appellant’s] trial that he has
     known [Appellant], (who he knows as “Sheem”), and Satchell for
     most of his life. He also knew the decedent as “Hat”. He was
     present on the 1600 block of York Street when the decedent was
     shot and killed. On the day of the shooting, he was sitting on
     the steps of 1614 York Street with his aunt and a friend. Three
     (3) males came around the corner of 17th Street and started
     shooting at three (3) of his friends: Satchell, Hakim and Faith
     Anderson, who were walking up the block. He testified that
     [Appellant] was not present on the scene. (NT, id, pages 196 –
     198).

          In the statement Mr. Williams gave to homicide detectives
     on December 4, 2008, he indicated that he was sitting on the

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     steps of 1614 York Street with his Aunt Kim and “TJ” Sikes
     “talking about this boy, Reggie, who got killed earlier that day at
     15th and York”. He saw [Appellant], Satchell, and Hakim walking
     on York Street from 16th Street towards Bancroft Street. He
     looked down York Street towards 17th Street and saw a male he
     knows as “Sife” and two (2) other males holding guns. They
     started shooting at [Appellant], Satchell and Hakim. [Appellant],
     Satchell and Hakim pulled out guns and started firing also. He
     saw the decedent lying on the ground shaking. When the
     shooting stopped, he saw [Appellant], Satchell, and Hakim run
     up Bancroft Street. [Appellant] and Satchell tried to enter
     Tracey Lester’s house. After Ms. Lester refused to allow them to
     enter, [Appellant] and Satchell ran up Bancroft Street and
     jumped over a fence. (NT, id, pages 205 – 208).

           In his statement, Mr. Williams described the gun that
     [Appellant] was carrying as a dark grey and light grey .40 caliber
     hand gun. He identified and placed his signature on photographs
     of [Appellant], Satchell, Sife and the decedent. (NT, id, pages
     209 – 210).

           Mr. Williams testified at Satchell’s trial that [Appellant] was
     with Satchell during the shootout at Bancroft and York Streets
     and that after the gunfire stopped, he saw Satchell, [Appellant]
     and Hakim run up Bancroft Street. At that trial, he placed an “R”
     on a diagram used at Satchell’s trial to indicate where
     [Appellant] was standing when the shooting was taking place.
     (NT, id, pages 212 214).

           At [Appellant’s] trial, Mr. Williams testified that he did not
     remember identifying [Appellant] in his statement or testifying
     at Satchell’s trial that [Appellant] was with Satchell. He testified
     that homicide detectives inserted [Appellant’s] name in his
     statement.

           Dr. Edwin Lieberman, an assistant medical examiner from
     the City of Philadelphia, testified that he reviewed the report and
     slides pertaining to the autopsy of the decedent. Based on his
     independent review, he opined that a gunshot wound to the
     head was the cause of death and that the manner of death was
     homicide. He indicated that a bullet entered the decedent’s body
     in the middle of his right eyebrow over his forehead that resulted
     in instantaneous death. He opined that the gunshot wound to
     the decedent’s head was not a contact wound, meaning that the
     muzzle was not in contact with the decedent’s forehead and as


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      there was no stipple, the shot must have been fired from at least
      two and one-half (2 ½) feet away. (NT, id, pages 138, 141 –
      145).

             Police Officer John Cannon testified that he is assigned to
      the Firearms Identification Unit.     He examined the ballistic
      evidence recovered from the scene. Twenty (20) fired cartridge
      casings were recovered from the scene. Of those twenty (20)
      fired cartridge casings; seven (7) were from a .40 caliber
      semiautomatic firearm, nine (9) were from a second .40 caliber
      semiautomatic firearm and four (4) were from a .9 millimeter
      Luger. He also examined three (3) bullets; two (2) bullet
      jackets; and four (4) bullet jacket fragments. Two (2) of the
      bullets were recovered from the scene and one (1) was
      recovered from the decedent’s head. The bullets were fired from
      different firearms. From this evidence, Officer Cannon opined
      that there was a minimum of four (4) different guns fired. No
      weapons were recovered. (Notes of Testimony, Trial (Jury)
      Volume 1, August 25, 2010, pages 112 – 134).

Trial Court Opinion, 9/5/13, at 2-6.

      Appellant’s sufficiency argument focuses on his first-degree murder,

conspiracy and aggravated assault convictions.      Appellant’s Brief at 8-14.

First-degree murder is defined as “criminal homicide … when it is committed

by an intentional killing.” 18 Pa.C.S.A. § 2502(a). Conspiracy occurs when

an individual “has the intent of promoting or facilitating [the] commission [of

a crime and] 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.” 18 Pa.C.S.A. § 903(a). An

“overt act” must be “alleged and proved” to support conspiracy.             18

Pa.C.S.A. § 903(e). Aggravated assault occurs when an individual “attempts

to cause serious bodily injury to another, or causes such injury intentionally,



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knowingly    or    recklessly   under    circumstances   manifesting   extreme

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

      Appellant argues that his convictions are unsupported by sufficient

evidence because he did not shoot or wound anyone, and “the evidence

established that [Appellant] and others had returned fire after being shot

at.” Appellant’s Brief at 11.

      In Commonwealth v. Jones, 610 A.2d 931, 938 (Pa. 1992), the

defendant was convicted of first-degree murder, aggravated assault,

criminal conspiracy and possessing an instrument of crime as a result of his

involvement, with two other individuals, in a shooting which resulted in the

deaths and woundings of bystanders in the courtyard of a Philadelphia

housing project.    In concluding that the evidence was sufficient to support

the defendant’s convictions, our Supreme Court explained:

      Appellant asserts that, in firing a barrage of twenty bullets at the
      people in the courtyard, he and his cohorts had no specific intent
      to kill. This assertion is patently without merit. 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. Boyd, 463 Pa.
      343, 349–50, 344 A.2d 864, 867 (1975). Further, under the
      doctrine of transferred intent, criminal responsibility is not
      affected by the fact that the bullets struck persons other than
      the one for whom they were apparently intended [].
      Commonwealth ex rel. McCant v. Rundle, 418 Pa. 394, 395–96,
      211 A.2d 460, 461–62 (1965) (transferred intent); 18 Pa.C.S. §
      303(b)(1).

Id. at 938. This explanation is instructive and applicable to the instant case.

      Moreover, with regard to Appellant’s claim of self-defense, after

hearing the evidence, the trial court instructed the jury on the elements of a

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self-defense justification and the Commonwealth’s burden of disproving the

elements of self-defense.   N.T., 8/26/10, at 39-44.     The jury’s verdicts

demonstrate that they rejected Appellant’s claim of self-defense, and as the

finder of fact, credited the evidence submitted by the Commonwealth.

     In addressing Appellant’s claims, the trial court reasoned:

           The jury was instructed that they could consider
     eyewitnesses Lester’s and Williams’ statements to Homicide
     Detectives as substantive evidence. Both identif[ied] [Appellant]
     as being present during the shooting, armed with a weapon.

           Pennsylvania courts have permitted non-party witnesses to
     be questioned on prior statements they have made when those
     statements contradict their in-court testimony. Commonwealth
     v. Carmody, 799 A.2d 143, 148 (Pa.Super.2002). Such prior
     inconsistent statements may be offered not only to impeach a
     witness, but may also be offered as substantive evidence if they
     meet additional requirements of reliability. Carmody, id, citing
     Brady, 507 A.2d at 68, Lively, 610 A.2d at 9-10 and Pa.R.E.
     613(a) and 803.1.

                                    ***

           The evidence showed that [Appellant] and his cohorts were
     involved in a shootout on a public street in broad daylight with a
     rival gang and struck two (2) innocent bystanders, killing one
     and injuring another.

          Furthermore, the specific intent to kill needed for First
     Degree Murder can be transferred.

           The doctrine of “transferred intent” has been codified in
     this Commonwealth and reads:

     (b) Divergence between result designed or contemplated
     and actual result.—When intentionally or knowingly causing a
     particular result is an element of an offense, the element is not
     established if the actual result is not within the intent or the
     contemplation of the actor unless:

        (1) the actual result differs from that designed or
        contemplated as the case may be, only in the respect

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       that a different person or different property is
       injured or affected or that the injury or harm designed or
       contemplated would have been more serious or more
       extensive than that caused; or

       (2) the actual result involves the same kind of injury or
       harm as that designed or contemplated and is not too
       remote or accidental in its occurrence to have a bearing on
       the actor’s liability or on the gravity of his offense. 18
       Pa.C.S.A.   §     303(b)   (emphasis    supplied).      See
       Commonwealth v. Gaynor, 538 Pa. 258, 648 A.2d 295
       (1994) (sets forth Commonwealth’s burden under §
       303(b)).

          Furthermore, the ballistic evidence showed that at a
     minimum, four (4) different guns were involved in the shootout.

           This evidence and all reasonable inferences deducible from
     that evidence, viewed in the light most favorable to the
     Commonwealth as verdict winner, were sufficient to establish all
     the elements of the offenses beyond a reasonable doubt. …

                                    ***

           Where an accused raises the defense of self-defense, the
     burden is on the Commonwealth to prove beyond a reasonable
     doubt that the defendant’s act was not justifiable self-defense.
     Commonwealth v. Yanoff, 456 Pa.Super. 222, 690 A.2d 260
     (1997).     The Commonwealth sustains this burden if “it
     establishes at least one of the following: 1) the accused did not
     reasonably believe that he was in danger of death or serious
     bodily injury; or 2) the accused provoked or continued the use of
     force; or 3) the accused had a duty to retreat and the retreat
     was possible with complete safety.”        Id. at 264 (citations
     omitted). It remains the province of the jury to determine
     whether the accused’s belief was reasonable, whether he was
     free of provocation, and whether he had no duty to retreat.
     Commonwealth v. Buksa, 440 Pa.Super. 305, 655 A.2d 576
     (1995).

            Examining the evidence in the light most favorable to the
     Commonwealth as verdict winner, the Commonwealth
     sufficiently disproved [Appellant’s] defense of self-defense by
     establishing that [Appellant] was not free from fault in provoking
     or continuing the gunfire that erupted. The evidence showed
     that the shootout was but part of an ongoing armed war

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        between rival groups, with [Appellant] and his cohorts electing
        to stand their ground, draw their weapons, and fire upon seeing
        armed rivals approaching them.

Trial Court Opinion, 9/5/13, at 7-10.

        Given the foregoing, we find no merit to Appellant’s sufficiency issue.

        In his second issue, Appellant asserts that his convictions were against

the weight of the evidence.       Appellant states, “the greater weight of the

evidence in this case only establishes that several young men were involved

in difficulties on the street and that the Commonwealth witness Derrick

Williams had offered evidence clearly indicating that [Appellant] and others

with him open[ed] fire only after they were being shot at.            The greater

weight of the evidence did not establish that [Appellant] shot and wounded

anyone nor that he acted as a co-conspirator or an accomplice.” Appellant’s

Brief at 16.

        Before addressing the merits of this claim, we note that the record is

devoid of any evidence that Appellant has preserved his weight claim.

Pa.R.Crim.P. 607 provides that a claim that a verdict is against the weight of

the evidence must be raised with the trial judge in a motion for a new trial

1) orally, on the record before sentencing, 2) in writing, any time before

sentencing, or 3) in a post-sentence motion.              Failure to comply with

Pa.R.Crim.P. 607 results in waiver.        See Commonwealth v. Little, 879

A.2d 293, 300-301 (Pa. Super. 2005). The fact that a trial court addresses a

claim    in    its   Pa.R.A.P.   1925(a)   opinion   is    of   no   consequence.

Commonwealth v. Washington, 825 A.2d 1264 (Pa. Super. 2003) (failure

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to raise a weight issue in a post-trial motion, despite the fact that the court

addressed it in its opinion resulted in waiver of issue on appeal).

       Here, Appellant did not raise his weight claim orally after the trial court

rendered its verdict, (see N.T., 8/26/10), or at the sentencing hearing (see

N.T., 12/14/10).      Further, the record contains no written or post-sentence

motion challenging the weight of the evidence.2 Appellant’s weight claim is

waived.

       In sum, we find no merit to Appellant’s sufficiency issue, and decline

to review Appellant’s weight issue because it has been waived.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




____________________________________________


2
  The trial court granted Appellant nunc pro tunc reinstatement of his
appellate rights, but denied nunc pro tunc reinstatement of Appellant’s post-
sentence motion rights. Trial Court Opinion, 9/5/13, at 2.



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