J-S52035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  Appellee               :
          v.                             :
                                         :
DONALD N. MILLER,                        :
                                         :
                  Appellant              :   No. 2448 EDA 2015

           Appeal from the Judgment of Sentence March 9, 2015,
           in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No: CP-51-CR-0005060-2014

BEFORE:        FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 14, 2016

      Donald N. Miller (Appellant) appeals from the judgment of sentence

imposed following his convictions for, inter alia, first-degree murder.   We

affirm.

      The trial court summarized the evidence as follows.

      [O]n May 17, 2013, [Appellant entered] his car parked on the
      1400 block of Dover Street in North Philadelphia, and drove
      down Dover Street, turning onto Jefferson Street near 28th
      Street. As he drove down Jefferson Street, he followed the
      decedent, Abdullah Dancy [(Dancy)], who was driving a dirt
      bike, and a friend of the decedent, who was driving an ATV.
      When Dancy turned onto Marston Street, [Appellant] slowed his
      car, put his arm out the window and shot at [Dancy] six times.
      [Appellant] then drove to the corner, turned down Etting Street
      and circled around again to the same spot on Dover Street from
      where he started. [Dancy] was transported to St. Joseph's
      Hospital by his friends. According to the statement of Jerome
      King [(King)], one of those friends, when [Dancy] was asked
      who did this to him, Dancy replied he saw [Appellant’s] car. This
      entire event was captured on several surveillance videos as well
      as witnessed by two women sitting on a bench at Marston and
      Jefferson Streets.

*Retired Senior Judge assigned to the Superior Court.
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Trial Court Opinion (TCO), 10/27/2015, at 3 (citation omitted).

      On March 9, 2015, following a jury trial, Appellant was convicted of

first-degree murder, carrying a firearm without a license, carrying a firearm

in a public place, and possessing the instrument of a crime. That same day

Appellant was sentenced to life imprisonment with three concurrent terms of

two and one half to five years’ incarceration. Appellant timely filed a post-

sentence motion, which was denied by operation of law on July 14, 2015.

Appellant timely filed his notice of appeal, and thereafter a court-ordered

concise statement of errors complained of on appeal.

      On appeal, Appellant challenges the sufficiency of the evidence to

sustain his convictions for murder and “possession of the firearm used in [a]

murder,”1 as well as the trial court’s failure to grant a mistrial and issue a

curative instruction. Appellant’s Brief at 7.

      We begin with Appellant’s sufficiency challenge, mindful of our

standard of review.

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in

1
  Based on Appellant’s charges, we presume he is referring to his conviction
for possession of the instrument of a crime. “A conviction for possession of
an instrument of crime requires the Commonwealth to prove that a
defendant possessed an instrument that is commonly used for criminal
purposes, under circumstances not manifestly appropriate for lawful use,
with the intent to employ it criminally.” Commonwealth v. Foster, 651
A.2d 163, 165 (Pa. Super. 1994).




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      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.    In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [finder] of fact while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

      Further, in viewing the evidence in the light most favorable to
      the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted). “Evidence is sufficient to sustain a

conviction of first-degree murder where the Commonwealth establishes that

the defendant acted with the specific intent to kill, that a human being was

unlawfully killed, that the person accused did the killing, and that the killing

was done with premeditation or deliberation.”     Commonwealth v. Spotz,

759 A.2d 1280, 1283 (Pa. 2000).

      Appellant claims the evidence was insufficient because

      the only piece of evidence against Appellant was a piece of mail
      inside the alleged vehicle used in the shooting, there was no



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        firearm recovered, the only eye witness, Linda Harris said she
        was ‘not sure,’ another piece of mail in the vehicle was to a
        Lamar Campfield (who is awaiting trial for a separate murder),
        the shooter was described as [having] ‘light skin’ and no ‘facial
        hair,’ while Appellant has facial hair including a goatee,
        sideburns, and a mustache, and [] Appellant had an alibi.

Appellant’s Brief at 8.

        Referring to Appellant’s summary of the evidence as “quixotic,” the

trial   court   found   sufficient   evidence   existed   to   sustain   Appellant’s

convictions.

              The prosecution commenced with the testimony of
        Philadelphia Police Officer Javier Montanez, who on May 17th of
        2013, responded to a radio call of a man with a gun, and while
        responding, encountered a red Mercury Grand Prix at St. Joe’s
        Hospital. In the vehicle were Martell Lewis and Robert Jackson,
        who had just driven to the hospital with [Dancy], who was
        suffering from a gunshot wound to the back. Dancy had been
        placed on a stretcher to be transported to the trauma unit at
        Hahnemann Hospital. [King] was the second witness presented.
        [King] was about four blocks away when he heard gunshots and
        received a phone call about the shooting, [and] then ran to the
        scene to see [Dancy] laying shot in the street. King helped get
        Dancy into the car and helped transport the [him] to the
        hospital.    []King had previously provided a statement to
        homicide in which King stated that he had asked [Dancy] when
        being transported to the hospital who shot him, to which
        [Dancy] replied that he had seen Donald’s car. King identified
        the [Appellant] as the Donald whom [Dancy] was referring to,
        and the gold Chevy Impala as the car [Appellant] drives.

               Beverly Downs was then called by the prosecution[. She]
        testified that she was with Linda Hawthorne Flamer, seated on a
        bench on Jefferson Street on May 17, 2013, at the time of the
        shooting. Ms. Downs had seen the two motorcycles come down
        Jefferson Street and one of them turn onto Marston Street.
        Although Ms. Downs’ memory of the events that evening were
        [sic] less than crystal clear, she had provided the police with a



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     statement on the night of the occurrence. Ms. Downs saw a gold
     colored car come up behind the motorcycle and after the
     motorcycle turned the corner on to Marston Street, she heard
     what she believed to be a vehicle backfire. Ms. Downs realized
     that what she heard were gunshots when she saw people
     hollering on [Marston] Street. Ms. Downs identified [Appellant]
     from a photo array, as well as at the preliminary hearing, as
     definitely looking like the driver of the car behind the
     motorcycles, and stated that she had seen him around the
     neighborhood. Ms. Downs also identified [Appellant] to her
     friend, Linda Hawthorne Flamer, as the driver of the gold
     automobile.

             Ms. Flamer’s testimony was also presented to the jury.
     Likewise reluctant to testify, Ms. Flamer confirmed that while she
     was on the bench at Jefferson and Marston, two “scooters” rode
     down the street and turned down Marston. As they turned down
     the street, a car with a single occupant pulled up and shot at the
     boys on the motorcycles. The driver looked at the two women
     on the bench and then proceeded to Etting Street where he
     turned right. Ms. Flamer identified [Appellant] as the driver of
     the gold vehicle that shot at the two males on the motorcycles.
     Ms. Flamer was taken to homicide where she gave a statement
     and identified [Appellant] from a photo array. Ms. Flamer also
     told homicide that she saw the old brown car stop, and inside
     was a brown skinned, young guy in the car with a gun. Ms.
     Flamer identified [Appellant] at trial, indicating that he looked a
     little different from the date of the incident.

            Officer Jason Orkin is a Philadelphia Police Officer who is
     assigned to the Real Time Crime Center, which is a unit that
     controls the police cameras throughout the city. Officer Orkin
     testified that he was working that unit on the night of the
     incident and observed the recording of the two males driving
     their motorcycles on Jefferson Street followed by a gold Chevy
     Impala. He observed the two males make a left turn and the
     driver of the gold Impala put his hand out the window with what
     appeared to be a gun. Detective Thursten Lucke next testified
     that he is assigned to the homicide division with a specialty of
     recovering and analyzing digital video surveillance footage, and
     he has been trained by the FBI. Detective Lucke provided a
     video of the entire crime, from when [Appellant] got into the



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      gold Impala, went around to Jefferson Street, followed the two
      males on motorcycles, pulled up behind them, stuck his arm out
      the window and shot the males and then drove back to where he
      started.

            Clearly this evidence was more than sufficient to sustain
      the convictions in this matter. There is a video of the entire
      incident from beginning to end. There is a declaration by the
      decedent [(Dancy)] identifying [Appellant’s] car as being
      involved in the shooting and two eyewitnesses to the shooting
      who testif[ied] they were right at the scene of the shooting [and]
      saw the shooting. The shooter turned and looked at them and
      drove off[.    The eyewitnesses knew] the shooter from the
      neighborhood and [that Appellant was] the shooter.

TCO, 10/27/2015, at 5-7 (citations omitted).

      We agree with the trial court that, when the evidence is viewed in a

light most favorable to the Commonwealth, it sufficiently demonstrates that

Appellant was the driver of the vehicle and the individual who shot Dancy.

Conversely, we cannot agree with Appellant that the evidence was as

unreliable and speculative as he claims. See Commonwealth v. Hughes,

908 A.2d 924, 928 (Pa. Super. 2006) (“[T]he evidence at trial need not

preclude every possibility of innocence, and the fact-finder is free to resolve

any doubts regarding a defendant’s guilt unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be drawn

from the combined circumstances”).         Accordingly, Appellant’s sufficiency

challenge fails.




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     Next we consider Appellant’s claims related to the trial court’s failure

to grant a mistrial.   In so doing, we note the following standard which

governs our review of such claims:

        In criminal trials, declaration of a mistrial serves to
        eliminate the negative effect wrought upon a defendant
        when prejudicial elements are injected into the case or
        otherwise discovered at trial. By nullifying the tainted
        process of the former trial and allowing a new trial to
        convene, declaration of a mistrial serves not only the
        defendant’s interest but, equally important, the public’s
        interest in fair trials designed to end in just judgments.
        Accordingly, the trial court is vested with discretion to
        grant a mistrial whenever the alleged prejudicial event
        may reasonably be said to deprive the defendant of a fair
        and impartial trial. In making its determination, the court
        must discern whether misconduct or prejudicial error
        actually occurred, and if so, … assess the degree of any
        resulting prejudice. Our review of the resulting order is
        constrained to determining whether the court abused its
        discretion. Judicial discretion requires action in conformity
        with [the] law on facts and circumstances before the trial
        court after hearing and consideration. Consequently, the
        court abuses its discretion if, in resolving the issue for
        decision, it misapplies the law or exercises its discretion in
        a manner lacking reason.

     The remedy of a mistrial is an extreme remedy required only
     when an incident is of such a nature that its unavoidable effect is
     to deprive the appellant of a fair and impartial tribunal.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (internal

quotation marks and citation omitted).

     Appellant first argues that the trial court erred in “not granting a

mistrial since Juror No. 1 was a friend of Appellant’s cousin, Devon Smith,

and spoke with Mr. Smith after being seated as a juror” and another juror



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was friends with a member of Dancy’s family.           Appellant’s Brief at 7.

Appellant contends the court’s failure to grant a mistrial was an “abuse of

discretion since [] Appellant was denied a fair trial, free from prejudice

before a neutral fact finder.” Id. at 11.

      We note at the onset that Appellant has failed to develop any

meaningful argument regarding the “prejudice” he proclaims to have

suffered; nor has he provided any citation to the record as evidence that he

made the trial court aware of the alleged issues with impaneled jurors. Most

notably, he fails to indicate where in the record he moved for a mistrial. 2

      In response to these bald assertions, the trial court contends that it

scoured the record and found the issue had not been preserved for appeal.

“The record not only lacks support for [Appellant’s] allegations, but is void of

any reference to these allegations.” TCO, 10/27/2015, at 3.

      We agree. Like the trial court, we too are unable to find where within

the record this issue was raised before the trial court, and therefore properly

preserved for this Court’s review. “An issue that is not properly briefed in

this manner is considered waived, as such an omission impedes our ability to


2
  See Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006)
citing Commonwealth v. Drake, 681 A.2d 1357, 1360 (Pa. Super. 1996)
(“An appellate brief must provide citations to the record and to any relevant
supporting authority.     This Court will not become the counsel for an
appellant, ‘and will not, therefore, consider issues ... which are not fully
developed in [the] brief.’”)




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address the issue on appeal.”      Commonwealth v. Einhorn, 911 A.2d at

970 (citations removed). Consequently, this issue is waived.

        Lastly, “Appellant contends [Detective Bass’s] reference to being a

member of the fugitive squad was improper and a curative instruction should

have been required.”      Appellant’s Brief at 12.   The trial court’s failure to

grant a mistrial or issue a curative instruction was an abuse of discretion

“since Appellant was denied a fair trial, free from prejudice before a neutral

fact finder.”3 Id.

        Appellant takes issue with the following testimony offered by Detective

Bass.

        [The Commonwealth:] Do you currently have a special role
        within the homicide unit?

        [Detective Bass:] Yes, I do. Within the homicide unit I’m
        assigned to the fugitive squad of the homicide unit.

        [The Commonwealth:] Before that did you work as a regular
        line homicide detective?

        [Detective Bass:] For the 16 years before I was assigned to the
        fugitive squad I did the regular line investigations as well as
        special investigations, known as case investigations.

        [The Commonwealth:] What is the job of the fugitive unit?

        [Detective Bass:] Our job in the fugitive squad is – [the] other
        two squads I mentioned to you, the line squad, which are the
        new cases of murder and the special investigations, which are


3
  Again, Appellant baldly asserts that he was prejudiced and denied a fair
trial, but fails to make any argument or cite any authority to support his
claims.


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      the older cases of murder, those detectives do the investigations
      as to who may or may not have committed this crime. When
      they find out who did it, they get arrest warrants with approval
      through the district attorneys. They hand it over to our squad.
      Our job is to try to find the person wanted for the warrant.

N.T. 3/6/2015 at 84.

      It has been well established by our courts that “issues not raised in the

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

Pa.R.A.P. 302(a). After a review of the record, we agree with the trial court

that Appellant has not properly preserved this issue.          Specifically, in

reviewing the applicable portion of the transcript, we find no objection,

motion for a mistrial, or request for a curative instruction made by Appellant

following Detective Bass’s testimony. No relief is due.

      Thus, after a thorough review of the record and briefs in this case, we

are unconvinced that any of Appellant’s arguments entitles him to relief.

      Judgment of sentence affirmed.




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     Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/14/2016




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