J. S76018/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                                             :
                    v.                       :
                                             :
KAREEM EVANS,                                :
                                             :
                          APPELLANT          :
                                             :     No. 2475 EDA 2015

              Appeal from the Judgment of Sentence July 13, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0005531-2014

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                           FILED NOVEMBER 21, 2016

        Appellant, Kareem Evans, appeals from the Judgment of Sentence

entered by the Bucks County Court of Common Pleas on July 13, 2015.

After careful review, we affirm.

        The facts, as established at trial and set forth by the trial court, are as

follows:

           The [v]ictim in this matter is a twenty-year-old resident of
           Philadelphia and mother of two children. In August of
           2014, the victim, a former home health aide, had begun to
           engage in prostitution, advertising her services as an
           “escort” on an internet website called “Backpage.”

           On August 8, 2014, at approximately 3:00 a.m., the victim
           received a telephone call from a man identifying himself as
           “Kareem,” later identified as [Appellant].      The victim


*
    Former Justice specially assigned to the Superior Court.
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       agreed to meet [Appellant] at 213 Market Street in Bristol
       Borough, Bucks County. Lorenzo Broggi[] drove the victim
       to the prearranged location where she met [Appellant].
       [Appellant] then led her on foot to another location, an
       unoccupied residence located on Cedar Street in Bristol
       Borough. After entering an unfurnished backroom of that
       building, the victim plugged the charger for her cellphone
       into a wall outlet.

       The victim, already concerned about the change of
       location, became frightened when she heard someone
       jiggling the handle of the front door. When [Appellant] left
       the backroom and headed for the front door, the victim
       immediately used her cell phone to call Mr. Broggi, her
       driver. When [Appellant] returned, he attempted to take
       the phone from the victim but she was able to temporarily
       regain control of it. The victim then attempted to leave
       the building.     When she began to do so, she was
       unexpectedly confronted by a second man, later identified
       as co-defendant Qudre McMillan. McMillan was armed with
       a shotgun. He pointed it at her and told her not to move.
       Raising both hands, the victim told McMillan that he could
       take the ten dollars in her pocket and her phone. McMillan
       continued to approach the victim, forcing her to retreat
       into the backroom.

       [Appellant] then “dismissed” McMillan from the room and
       proceeded to orally and vaginally rape the victim,
       threatening to “punch her in her f—ing head” and kill her if
       she did not do what she was told. [Appellant] ejaculated
       inside her. As [Appellant] sexually assaulted the victim,
       McMillan occasionally watched from his position in the
       hallway. When [Appellant] then left the room, McMillan
       entered. The victim continued to cry as McMillan vaginally
       raped her. He ejaculated on her buttocks. McMillan then
       left the room. While the victim waited for her attackers to
       return, she heard a door shut. When neither attacker
       returned after two minutes, the victim fled the building.

       Shortly after dropping the victim off at the Market Street
       address where [Appellant] was waiting, Mr. Broggi
       received a call from the victim. When he answered, the
       victim did not speak to him. Mr. Broggi heard a scuffle in
       the background. As he listened, he heard a male voice.


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       Mr. Broggi testified that he heard the victim crying and
       yelling. He specifically heard her say that she did not have
       any money with her. He also heard her tell someone to
       leave her alone, and not to hurt her. The phone call
       abruptly ended. Realizing that the victim was in trouble,
       Mr. Broggi returned to Market Street in an attempt to
       locate the victim. He circled the area sounding the horn of
       his vehicle. M. Broggi’s efforts to locate the victim were
       unsuccessful.

       At approximately 4:30 a.m., Arthur Carter and his son
       were driving on Market Street approaching Cedar Street
       when the victim ran out from Cedar Street and ran in front
       of his van. When Mr. Carter lowered his window to speak
       to her, she told him that she had been raped and that she
       needed help. Mr. Carter testified that the victim was
       hysterical, that she was crying, and that her hair looked
       “like somebody had been dragging her around.”          Her
       clothes were askew and her underwear was pulled out of
       her pants. Mr. Carter called 911 and remained with her
       until assistance arrived. The victim was then transported
       from the scene to Abington Memorial Hospital for a Sexual
       Assault Examination. During that examination, vaginal
       and rectal swabs were obtained.

       A search warrant was obtained for the Cedar Street
       address. During the search, the cell phone charger to the
       victim’s telephone was found on the floor of the back room
       of the residence. Police contacted the victim’s cell phone
       carrier who informed them that the victim’s cell phone was
       located at the intersection of Headley Street and Pine
       Street in Bristol Borough, with an uncertainty of thirty-five
       meters. [Appellant] was staying at 801 Pine Street which
       is located at the intersection of Headley and Pine Streets.
       That residence is approximately six blocks away from
       Cedar Street where the assaults occurred.

       On August 9, 2014, police observed McMillan in the area of
       Cedar Street. On that same date, police executed a search
       warrant of 801 Pine Street.         When police arrived,
       [Appellant] was present. While detectives were executing
       the search warrant, McMillan arrived at the residence. The
       victim’s cell phone was found concealed beneath a seat
       cushion of a sofa inside the residence. Kalesha Cruz,


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         [Appellant’s] fiancée, told police and later testified that she
         observed McMillan give [Appellant] the cell phone on
         Friday, August 8, 2014.

         A photo array, which included an image of [Appellant] as
         Photograph Number 2, was displayed to the victim. The
         victim almost immediately pointed to Photograph Number
         2, gasped, said, “That’s him. That’s the man who raped
         me,” and began to cry.

         The vaginal and rectal swabs of the victim were submitted
         to the Pennsylvania State Police Bureau of Forensic
         Services for serological and DNA analysis. The items were
         determined to contain spermatozoa and the DNA of
         [Appellant] and McMillan.

Trial Ct. Op., 1/7/16, at 2-5 (citations omitted).

      Prior to trial, on February 27, 2015, the Commonwealth filed a written

motion seeking to admit evidence of witness intimidation for the purposes of

demonstrating consciousness of guilt. After an offer of proof, the trial court

granted the motion over the objections of counsel for Appellant and co-

defendant Qudre McMillan (“McMillan”).

      On March 9, 2015, Appellant’s and McMillan’s three-day joint jury trial

began.    The Commonwealth presented the testimony of ten witnesses,

including the victim.    The court ordered all non-police and non-expert

witnesses sequestered from the courtroom during witness testimony.

Relevant to this appeal, during the victim’s cross-examination by McMillan’s

counsel, the victim became distraught and asked to leave the witness stand.

The court recessed for 15 minutes, after which, over Appellant’s counsel’s




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objection, the court permitted the victim to retake the stand and McMillan’s

counsel to continue with cross-examination.

      On March 13, 2015, the jury convicted Appellant of Rape by Threat of

Forcible Compulsion, Involuntary Deviate Sexual Intercourse by Threat of

Forcible Compulsion, Robbery by Threat of Serious Bodily Injury, Robbery by

Force, Terroristic Threats, Theft by Unlawful Taking, Criminal Conspiracy to

Commit Robbery by Threat of Serious Bodily Injury, and Criminal Conspiracy

to Commit Theft.1, 2

      The court deferred sentencing for Appellant to undergo an evaluation

by the Sexual Offender Assessment Board pursuant to 42 Pa.C.S. § 9799.24.

Based upon the findings of the Board, and with the agreement of the parties,

the court found Appellant to be a Sexually Violent Predator.



1
  18 Pa.C.S. § 3121(a)(2); 18 Pa.C.S. § 3123(a)(2); 18 Pa.C.S. §
3701(a)(1)(ii); 18 Pa.C.S. § 3701(a)(1)(v); 18 Pa.C.S. § 2706(a)(1); 18
Pa.C.S. § 3921(a); and 18 Pa.C.S. § 903(c), respectively.
2
  The jury also convicted McMillan of Rape, Robbery by Threat of Serious
Bodily Injury, and Criminal Conspiracy to Commit Robbery by Threat of
Serious Bodily Injury.    The court sentenced McMillan to an aggregate
sentence of 20-40 years’ incarceration. McMillan’s appeal from his Judgment
of Sentence is pending before this Court.         See Commonwealth v.
McMillan, No. 2490 EDA 2015.

       A separate jury convicted Appellant of Criminal Solicitation (Witness
Solicitation). 18 Pa.C.S. § 902(a). The court sentenced Appellant to 3 ½ to
10 years’ incarceration, to be served consecutively to the sentence Appellant
challenges in the instant appeal. Appellant’s appeal from his Judgment of
Sentence for Criminal Solicitation (Witness Intimidation) is pending before
this Court. See Commonwealth v. Evans, 383 EDA 2016.



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     On July 13, 2015, the court sentenced Appellant to an aggregate

sentence of 40-80 years’ incarceration, comprised of four consecutive terms

of 10 to 20 years’ incarceration on the convictions for Rape by Threat of

Forcible Compulsion, Involuntary Deviate Sexual Intercourse by Threat of

Forcible Compulsion, Robbery by Threat of Serious Bodily Injury, and

Criminal Conspiracy to Commit Robbery by Threat of Serious Bodily Injury

convictions, all first-degree felonies. The court imposed no further penalty

on the other convictions.

     Appellant did not file a Post-Sentence Motion.    On August 10, 2015,

Appellant filed a timely Notice of Appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

     Appellant raises the following three issues for our review:

        1. Did the trial court err in allowing the complainant, in
        violation of the sequestration order, to return to the stand
        to testify without allowing the defense to obtain
        information as to what she was told by the District
        Attorney, the officer, and a victim advocate to encourage
        her to retake the witness stand?

        2. Did the trial court err and deny Appellant due process in
        allowing the Commonwealth to introduce evidence of
        witness intimidation against Appellant in violation of
        Pennsylvania Rules of Evidence 401, 402, 403, and 404,
        when these allegations were not only irrelevant to the
        alleged charges in the instant case, but unproven at the
        time of trial and heavily in dispute.        As such their
        prejudicial impact far outweighed their probative value?

        3. Did the trial court abuse its discretion in imposing an
        aggregate sentence of 40 to 80 years because:




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              (a) the sentence is effectively a life sentence and
              constitutes an illegal sentence for the crimes
              charged; and

              (b) the maximum sentence imposed on four counts
              which exceeded the aggravated range of sentences
              running consecutively to each other is unduly harsh
              considering the nature of the crime and the length of
              the imprisonment imposed against a 22 year old?

Appellant’s Brief at 5-6.

      In his first issue, Appellant claims the trial court abused its discretion

in allowing the victim to return to the witness stand, in violation of the

court’s sequestration order, without first permitting his counsel to ascertain

whether the victim had discussed the content of her testimony with the

District Attorney, a police officer, and a victim advocate, during the court’s

recess. Appellant’s Brief at 17-18. Appellant argues that, because the court

precluded his counsel from examining under oath those people to determine

what they said to the victim to convince her to continue testifying, the court

was unable to determine the appropriate remedy for violation of the

sequestration order. Id. at 18.

      A trial court may sequester witnesses in order to “prevent a witness

from shaping his [or her] testimony with evidence presented by other

witnesses.”    Commonwealth v. Henry, 706 A.2d 313, 320 (Pa. 1997)

(citation omitted).   Whether there has been a violation of a sequestration

order is a question of fact for the trial court. Commonwealth v. Marinelli,




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690 A.2d 203, 219 (Pa. 1997). This Court will not overturn the decision of

the trial court where it is “supported by sufficient credible evidence.” Id.

      With respect to Appellant’s claim, the trial court opined as follows:

         In the instant case, after the victim left the witness stand,
         this [c]ourt took a fifteen minute recess. Prior to allowing
         the witness to continue her testimony, this [c]ourt allowed
         counsel to question the victim as to whether she discussed
         her testimony while outside the courtroom. The victim
         testified that she did not. This [c]ourt also identified the
         individuals who spoke with the victim and asked each
         person individually if the content of the victim’s testimony
         was discussed. Each person represented to this [c]ourt
         that her testimony was not discussed. Moreover, counsel
         for the [d]efendants conceded that they had no basis [to]
         contradict the representations made to this [c]ourt. This
         [c]ourt therefore properly found that no violation of the
         sequestration order occurred.

         As to [Appellant’s] contention that the [c]ourt should have
         inquired into the exact content of the communications,
         such an inquiry would not have been relevant.           The
         purpose of sequestration is to prevent a witness from
         shaping his or her testimony with evidence presented by
         other witnesses. [ ] Therefore, the [c]ourt properly limited
         its inquiry to whether the victim’s testimony was
         discussed.

Trial Ct. Op. at 8-9 (citation omitted).

      Our review of the evidence of record, including the trial transcript,

confirms the trial court’s conclusion that no violation of the court’s

sequestration order occurred.     The victim left the witness stand abruptly

during her cross-examination, during which time the court recessed.            The

victim then returned to the courtroom. The victim testified, and the parties

who spoke to the victim during the court’s recess reported, that they did not



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discuss the victim’s testimony. N.T., 3/10/14 (morning), at 126-27, 141-42.

Furthermore, neither counsel for Appellant nor counsel for McMillan reported

to the court having any reason to believe that the victim spent the court’s

recess discussing the content of her testimony. Id. at 124-26.

      Moreover, permitting the victim to continue her testimony after the

recess did not undermine the purpose of sequestration—preventing a

witness from molding her testimony based upon testimony given by a

previous witness.     The victim in this case was not present during the

testimony of any other witnesses and therefore, even after removing herself

from the witness stand during her testimony, could not have shaped her

testimony in accordance with testimony previously taken from other

witnesses.   For these reasons, we conclude there was sufficient credible

evidence for the trial court to find that no sequestration violation took place.

Accordingly, Appellant is not entitled to relief on this issue.

      In his second issue, Appellant claims that the trial court abused its

discretion by admitting evidence of his acts of witness intimidation and his

plan to induce the victim not to testify. Appellant’s Brief at 19. Upon Motion

by the Commonwealth, the trial court permitted, as proof of consciousness

of guilt, the admission of redacted portions of five prison telephone calls

between Appellant and his fiancée Kaleshia Cruz (“Cruz”), and a letter that

Appellant wrote to Cruz, which demonstrated that Appellant and Cruz




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planned to pay the victim not to testify at trial.     The court also permitted

Cruz to testify.

      Appellant argues that the prejudice to him outweighed the probative

value of this “irrelevant evidence,” and that the telephone calls, specifically,

did not suggest intimidation or consciousness of guilt.3         Id. at 21.   We

disagree.

      Initially, 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.
         Abuse of discretion is not merely an error of 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.

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

citations omitted).

      It is well-settled that “any attempt by a defendant to interfere with a

witness’s testimony is admissible to show a defendant’s consciousness of

guilt.” Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007).

3
  To the extent that Appellant argues in his Brief that the trial court erred in
permitting the introduction of this evidence because his Witness Intimidation
charges were severed from the charges herein, and, therefore, evidence of
the acts giving rise to those charges were inadmissible, we find this claim
waived as Appellant did not raise this alternative theory of error in his
Pa.R.A.P 1925(b) statement, and the trial court did not address it. See
Pa.R.A.P. 1925(b)(4)(ii), (vii).



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      In the instant matter, the trial court explained its evidentiary ruling as

follows:

           The evidence admitted at trial established that following
           his arrest, [Appellant] and his fiancée, Kalesha Cruz,
           entered into a conspiracy to identify and locate the victim
           and then to offer her money in an effort to persuade her
           not to appear and/or testify in court.          This [c]ourt
           permitted the Commonwealth to introduce a letter written
           by [Appellant] shortly after his arrest, recorded prison calls
           between [Appellant] and Cruz and Cruz’s in-court
           testimony as evidence of consciousness of guilt.

           In the letter [Appellant] wrote:

              I was wrong. We were supposed to rob her, that’s it.
              But things got out of hand. She a girl from Back
              Page prostituting for money. If you can get in touch
              with her and offer her money, I’m sure she won’t
              show up.       You just need to get the correct
              information . . . .

           In a recorded call that occurred on August 14, 2014, Cruz
           advised [Appellant], “No luck yet. I’m searching. I sent
           your brother the information, so hopefully he’s been
           searching.” Cruz testified that she was explaining the
           status of her efforts to find the victim. In a recorded call
           that occurred on August 30, 2014, Cruz told [Appellant]
           that she had to think of what to say. At trial, Cruz testified
           that she was referring to what she should say when she
           talked to the victim. During the August 30th conversation,
           [Appellant] told Cruz that, if she talks to the victim, she
           should mention the money first. In a recorded call that
           occurred on August 31, 2014, Cruz told [Appellant] that
           she called “the number.” At trial, Cruz testified that this
           comment referred to the fact that she had called the
           telephone number for “Backpage,” the website [Appellant]
           and McMillan used to contact the victim. Cruz also told
           [Appellant] that she would try to speak with the victim
           when the victim appeared to testify at an upcoming court
           date.




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         . . . Evidence concerning [Appellant’s] attempt to offer the
         victim a bribe not to testify was therefore admissible
         against [Appellant].

Trial Ct. Op. at 5-6 (citations omitted).

      We agree with the trial court. After reviewing the evidence of record,

and the relevant authority, we conclude the trial court did not abuse its

discretion in admitting the evidence and testimony cited supra, for the

purposes of establishing Appellant’s consciousness of guilt.

      Additionally, as noted by the trial court, it unambiguously instructed

the jury that “any evidence of witness intimidation could only be considered

by the jury for purposes of determining consciousness of guilt as to the

crimes charged in the instant matter and not for any other reason[.]” Id. at

7.   Because a “jury is presumed to have followed the trial court’s

instructions[,]” we likewise agree with the trial court that Appellant was not

prejudiced by the admission of the challenged evidence. Commonwealth

v. Burno, 94 A.3d 956, 977 (Pa. 2014). Accordingly, Appellant’s claim fails.

      In his third issue, Appellant claims to challenge both the legality of and

the discretionary aspects of his sentence. First, Appellant argues that his 40

to 80 year sentence is “illegal because it is in essence a life term.”

Appellant’s Brief at 23. Then, Appellant argues that the trial court abused its

discretion in sentencing Appellant in the aggravated range and in imposing

consecutive sentences. Id. at 25-28. We consider these issues in turn.




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      Initially, we reiterate that Appellant did not file a Post-Sentence Motion

in which he challenged the sentence imposed by the trial court. However,

Appellant purports to challenge the legality of his sentence.              When a

defendant challenges the trial court’s authority to impose a specific

sentence, a defendant has raised a legality of sentence challenge.

Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011). A challenge to

the legality of sentence is non-waivable, and may be considered for the first

time on appeal.    See, e.g., Commonwealth v. Robinson, 931 A.2d 15,

19-20 (Pa. Super. 2007).

      With   respect   to   his   first    sentencing   sub-issue,   Appellant   has

mischaracterized it as a challenge to the legality of his sentence. Within his

Brief, Appellant argues only that his sentence is excessive given his age at

the time he committed the crimes for which the jury convicted him and the

likelihood he will serve most, if not all, of his sentence. Appellant’s Brief at

23-24.

      Herein, the trial court sentenced Appellant to four consecutive terms of

ten to twenty years’ incarceration. Appellant concedes that these sentences

are within the statutory maximums, and acknowledges that, “Pennsylvania

does not recognize an indeterminate sentence as a life sentence where a

prisoner is eligible for parole during his lifetime.”           Id. at 23 (citing

Commonwealth v. Baker, 78 A.3d 1044, 1052 (Pa. 2013). Accordingly, as

this issue does not relate to the trial court’s authority to impose a sentence



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pursuant to the statutes under which the jury convicted Appellant, he has

not challenged the legality of his sentence.

      In his second allegation of error within his challenge to his sentence,

Appellant contends that the trial court imposed an excessive sentence. This

averment challenges the discretionary aspects of his sentence.           After

reviewing the record, we conclude that Appellant has waived this issue on

appeal.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.”   Commonwealth v. Lamonda, 52 A.3d 365, 371

(Pa. Super. 2012) (en banc) (citation omitted). Prior to reaching the merits

of a discretionary sentencing issue:

          We conduct a four[-]part analysis to determine: (1)
          whether
          appellant has filed a timely notice of appeal, see Pa.R.A.P.
          902 and 903; (2) whether the issue was properly
          preserved at sentencing or in a motion to reconsider
          and modify sentence, see [Pa.R.Crim.P. 720]; (3)
          whether appellant's brief has a fatal defect, Pa.R.A.P.
          2119(f); and (4) whether there is a substantial question
          that the sentence appealed from is not appropriate under
          the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted) (emphasis added).

      Instantly, Appellant failed to preserve the issue at the time of

sentencing or in a Post-Sentence Motion. Accordingly, Appellant has waived

his right to challenge to the discretionary aspects of sentence on appeal.


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     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2016




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