J-S41008-18

                                   2018 PA Super 221

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KHALIF THOMAS                              :
                                               :
                       Appellant               :   No. 1388 EDA 2017

             Appeal from the Judgment of Sentence March 27, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004334-2016


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                            FILED AUGUST 03, 2018

        Appellant, Khalif Thomas, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after a jury

convicted him of one count each of murder in the first degree, carrying a

firearm without a license, and possessing an instrument of crime.1 Sentenced

to a mandatory sentence of life in prison on the murder charge, with an

aggregate sentence of 4 ½ to 12 years’ incarceration on the remaining

charges, Appellant raises challenges to the admission of evidence, to the

court’s application of Pa.R.E. 106 during trial, and to the sufficiency and the

weight of the evidence. We affirm.

        The trial court’s Pa.R.A.P. 1925(a) opinion sets forth the pertinent facts

of the case, as follows:

        At trial, the Commonwealth presented the testimony of
        Philadelphia Police Officers Christopher Noga, Crain Perry, Ann
____________________________________________


1   18 Pa.C.S. §§ 2502, 6106, and 907(a), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      Brown, Darnell Jessie, Kevin Palmer, Robert Stott, Vincent Luu,
      and Maurice Smith, Philadelphia Police Detectives Darryl Pearson
      and Laura Hammond, Philadelphia Police Sergeant Francis Kelly,
      Philadelphia Deputy Medical Examiner Dr. Albert Chu, and Dianna
      Garfield, Shatyrah Garfield, Karee Freeman, Eric McDowell, and
      Khalil Hall. Defendant [hereinafter “Appellant”] presented no
      testimony, but offered into evidence a letter written by Karee
      Freeman.       Viewed in the light most favorable to the
      Commonwealth as the verdict winner, the evidence established
      the following.

      During the evening hours of December 30, 2015, Appellant, the
      victim, Naeem Garfield, and a few other men were playing dice on
      the corner of Salford and Market Streets in Philadelphia. N.T.
      3/21/17 at 207. Eventually, the men moved their game a short
      distance away to Redfield Street. Id; N.T. 3/22/17 at 67. During
      the game, some players became angry that Garfield was cheating
      and winning. N.T. 3/21/17 at 135; N.T. 3/22/17 at 40. At one
      point, a player, Eric Flowers, angrily walked away from the game,
      and Appellant went over to him and said, “It’s cool, man. It’s cool.
      We gonna handle it man.” N.T. 3/21/17 at 135, 147.

      Sometime after, while Garfield was bending over to roll the dice,
      Appellant fired a shot at him from behind, causing him to fall to
      the ground. Id. at 207-208; N.T. 3/22/17 at 70, 77-78. Appellant
      then shot Garfield two more times in his face. N.T. 3/21/17 at
      208. Multiple witnesses were on the scene at the time of the
      shooting. They included Karee Freeman, who was a participant in
      the dice game and just down the street, and Eric McDowell, who
      was across the street, approximately a half-block away. N.T.
      3/21/17 at 207-208; N.T. 3/22/17 at 66, 102.

      At the time of the shooting, Philadelphia Police Officers were
      responding to a burglary call on the 100-block of Redfield Street,
      when they heard gunshots coming from the south on Redfield.
      N.T. 3/21/17 at 74. Officers proceeded to the scene and found
      Garfield [lying] on his back in front of 43 North Redfield, suffering
      from an apparent gunshot wound to the head. Id. Garfield was
      in fact shot three times: twice in the head and once in the back
      of the neck. N.T. 3/22/17 at 11-13. Philadelphia Police Officers
      transported him to Presbyterian Hospital in Philadelphia, where he
      was later pronounced dead. N.T. 3/21/17 at 67, 75.

Trial Court Opinion, filed 10/20/17, at 2-4.


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       Following Appellant’s conviction, sentencing, and the denial of his post-

sentence motion, he filed this timely notice of appeal.2 The trial court directed

Appellant to file a concise statement of matters complained of on appeal, and

Appellant complied. In turn, the trial court has supplied us with its Pa.R.A.P.

1925(a) opinion.

       In Appellant’s brief submitted to this Court, he presents the following

questions for our consideration:

       I.     [DID] THE COURT ERR[] IN ADMITTING EVIDENCE
              THAT HAD A PREJUDICIAL EFFECT THAT FAR
              OUTWEIGHED ANY PROBATIVE VALUE[?]

       II.    [DID] THE COURT ABUSE[] ITS DISCRETION
              APPLYING THE RULE OF COMPLETENESS[?]

       III. [WAS] THE VERDICT . . . AGAINST THE SUFFICIENCY
            AND/OR WEIGHT OF THE EVIDENCE[?]

____________________________________________


2 The docket sheet reflects that Appellant filed the notice of appeal on April
24, 2017, while his post-sentence motion was still pending before the trial
court. On July 19, 2017, this Court issued a rule to show cause why the appeal
should not be quashed as interlocutory because the post-sentence motion was
still pending. On July 24, 2017, the trial court denied the post-sentence
motion. On July 26, 2017, counsel filed a response to the rule to show cause.
There is no indication on the trial court docket that Appellant filed a
subsequent notice of appeal after the post-sentence motion was denied.

The Pennsylvania Rules of Appellate Procedure provide that “a notice of appeal
filed after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof. Pa.R.A.P. 905(a)(5). Accordingly, we deem Appellant’s notice of
appeal timely filed on the date the trial court denied the post-sentence motion.




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Appellant’s brief, at 1.

      In Appellant’s first issue, he charges error with the court’s admission of

evidence, over defense objection, that Karee Freeman and he were

incarcerated in the same jail two months before trial. Allowing such evidence

“created an inference that Appellant had a criminal background making him

appear more likely than not the person responsible for Mr. Garfield’s murder

because he was incarcerated[,]” Appellant maintains. Appellant’s brief at 3.

Also unfairly prejudicial, Appellant contends, was the question put to Mr.

Freeman about whether “prisoners look favorably on a fellow prisoner like you

testifying for the Commonwealth?” N.T. 3/21/17, at 244-47.

      The Commonwealth sought to admit this evidence in response to

Freeman’s written recantation of his earlier videotaped statement in which he

had described, in detail, how he witnessed Appellant shoot and kill Garfield.

Specifically, the Commonwealth argued the timing of Freeman’s letter of

recantation, which he made within one month of his placement in the same

institution as Appellant, supported the inference that the recantation was the

product of Appellant’s intimidation of a key Commonwealth witness. As such,

the Commonwealth claimed the evidence was relevant both to show

Appellant’s consciousness of guilt and to explain the reason for Freeman’s

inconsistent statements, and the trial court agreed.

             Admission of evidence is within the sound discretion of the
      trial court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. Admissibility depends on
      relevance and probative value. Evidence is relevant if it logically
      tends to establish a material fact in the case, tends to make a fact

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      at issue more or less probable or supports a reasonable inference
      or presumption regarding a material fact.

Commonwealth v. Levanduski, 907 A.2d 3, 13–14 (Pa. Super. 2006). “In

addition, for a ruling on evidence to constitute reversible error, it must have

been harmful or prejudicial to the complaining party.” Reott v. Asia Trend,

Inc., 7 A.3d 830, 839 (Pa.Super. 2010) (internal quotations and citations

omitted). “A party suffers prejudice when the trial court’s error could have

affected the verdict.”   Commonwealth v. Yockey, 158 A.3d 1246, 1254

(Pa.Super. 2017) (citation omitted).

      Our courts have “long recognized 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). So, too, have we permitted the Commonwealth to engage in a line of

questioning designed to reveal that a witness changed his testimony for fear

of the consequences of testifying truthfully. See, e.g., Commonwealth v.

Collins, 702 A.2d 540, 544 (Pa. 1997) (recognizing well-established

precedent that third-party threats are admissible to explain a witness’s prior

inconsistent statement).

      Revealing to the jury that Freeman disavowed his accusation of

Appellant less than one month after he was housed in the same prison as

Appellant was consistent with controlling jurisprudence deeming this kind of

evidence admissible for the limited purposes identified above. Moreover, the

trial court explained to the jury that Appellant was not incarcerated for a prior



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offense at the time in question but was in pretrial incarceration on the present

charges. To that end, the court cautioned the jury that it could not

      conclude that [Appellant] is a bad person or a person of bad
      character because he was incarcerated. As you know, after people
      get arrested, they are frequently incarcerated before trial. You
      folks know. So you are not to draw any conclusions about that
      fact, whatsoever, all right? [Appellant’s incarceration is] [o]nly
      admissible for the two purposes I told you. To the extent that it
      explains this witness’ behavior, if you find it happened and if you
      find it helpful. I’m not expressing any opinion on whether or not
      it’s true, okay? Or if you find that it shows a consciousness of
      guilt on the part of the defendant. If you don’t, that will be entirely
      up to you as to what actually happened; okay. That’s your
      decision.

N.T. 3/21/17 at 219.

      Given this record, no abuse of discretion attended either admitting

evidence of Appellant’s pretrial detention with Freeman or asking Freeman

whether he believed his cooperation with the Commonwealth would place him

at risk with fellow inmates. Both evidentiary offerings were relevant for the

limited purposes identified by the trial court in its instruction to the jury,

namely, explaining a possible reason for Freeman’s recantation and revealing

Appellant’s consciousness of guilt, provided the jury believed Appellant did, in

fact, intimidate Freeman. Furthermore, the jury instruction, itself, cured any

potentially unfair prejudice stemming from the evidence by explaining

Appellant was not incarcerated for other crimes but was detained pending trial

on the charges filed in the present case.         For these reasons, we reject

Appellant’s first issue as devoid of merit.




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        In Appellant’s second issue, he argues that the trial court abused its

discretion in applying Pennsylvania Rule of Evidence 106,3 known as the “Rule

of    Completeness,”     during    defense     counsel’s   re-cross   examination   of

eyewitness Eric McDowell. Specifically, counsel read to McDowell a portion of

his preliminary hearing testimony—where McDowell had claimed he was

running away from the scene and did not witness the shooting as it

happened—and asked McDowell to confirm the accuracy of his prior testimony,

which McDowell did. N.T., 3/22/17 (criminal trial) at 121-123.

        At that moment, the court addressed the prosecutor and advised her

that she may ask defense counsel to read any other portion of McDowell’s

preliminary hearing in the interest of completeness, as the prosecutor would


____________________________________________


3   Pennsylvania Rule of Evidence 106 provides:

        If a party introduces all or part of a writing or recorded statement,
        an adverse party may require the introduction, at that time, of
        any other part—or any other writing or recorded statement—that
        in fairness ought to be considered at the same time.

Pa.R.E. 106. The purpose of the rule is to

        give the adverse party an opportunity to correct a misleading
        impression that may be created by the use of a part of a writing
        or recorded statement that may be taken out of context. This rule
        gives the adverse party the opportunity to correct the misleading
        impression at the time that the evidence is introduced. The trial
        court has discretion to decide whether other parts, or other
        writings or recorded statements, ought in fairness to be
        considered contemporaneously with the proffered part.

Pa.R.E. 106, comment.


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not have the opportunity to conduct more questioning after defense counsel

completed his re-cross examination.        N.T. at 123-24.     The prosecutor

requested that defense counsel “read to the next page, page 14[,]” to which

defense counsel asked of the court “Are you stopping my cross-examination?”

N.T. at 124.

       The court responded,

       No. Under the rule of completeness, I’m allowing her to direct you
       to cover more than what you just did. Keep reading the questions
       and answers. That’s what I’m doing. . . . It’s a continuation.
       She’s about to have you continue reading. Within fairness it
       should be read. I’m allowing her to do that.”


Id. “And you want me to do it?” defense counsel asked, to which the court

replied, “You can do it, yes.” “Okay[,]” defense counsel replied. N.T. at 124-

125.

       Defense counsel read the next page of the preliminary hearing notes of

testimony, where McDowell testified he did not see the shooting happen but

was present that day at the time of the shooting. “I got up out of there . . .

when it was about to go down[,]” McDowell explained.          N.T. at 125-26

(quoting preliminary hearing testimony). McDowell testified he saw Appellant

holding the gun toward the shooting victim “and that’s when I got up out of

there.” N.T. at 126 (quoting preliminary hearing testimony). McDowell then

heard “like three, four” gunshots as he was running away.         N.T. at 126.

(quoting preliminary hearing testimony).




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      Appellant now objects, for the first time, that there was no misleading

impression created by defense counsel’s use of McDowell’s preliminary hearing

testimony that justified the trial court’s use of Rule 106 as a corrective

measure.    In order to preserve an evidentiary objection for purposes of

appellate review, a party must interpose a timely and specific objection in the

trial court. “The rule is well settled that a party complaining, on appeal, of

the admission of evidence in the [c]ourt below will be confined to the specific

objection there made.” Commonwealth v. Cousar, 928 A.2d 1025, 1041

(Pa. 2007), quoting Commonwealth v. Boden, 159 A.2d 894, 900 (Pa.

1960). Because Appellant failed to lodge a timely and specific objection on

the basis that Rule 106 permits only correction of a misleading use of a writing

or recorded statement, his argument his waived on appeal.

      In his final issue, Appellant argues that his verdict was against either

the sufficiency of the evidence or the weight of the evidence, given the lack

of evidence identifying Appellant as the person who shot Naeem Garfield. We

first address Appellant's sufficiency of the evidence claim, for which our

standard of review is well settled:

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


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            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.

      Commonwealth v. Estepp, 17 A.3d 939, 943–44 (Pa.Super.
      2011) (citing Commonwealth v. Brooks, 7 A.3d 852, 856–57
      (Pa.Super. 2010)). “This standard is equally applicable to cases
      where the evidence is circumstantial rather than direct so long as
      the combination of the evidence links the accused to the crime
      beyond a reasonable doubt.” (Commonwealth v. Sanders, 426
      Pa.Super. 362, 627 A.2d 183, 185 (1993)).            “Although a
      conviction must be based on ‘more than mere suspicion or
      conjecture, the Commonwealth need not establish guilt to a
      mathematical certainty.’” Commonwealth v. Gainer, 7 A.3d
      291, 292 (Pa.Super. 2010) (quoting Commonwealth v.
      Badman, 398 Pa.Super. 315, 580 A.2d 1367, 1372 (1990)).

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014).

      From our review of Appellant’s sufficiency argument, we see he ignores

our standard of review by examining evidence involving prior inconsistent

statements in the light most favorable to him. For example, Appellant argues

that Eric McDowell testified he saw neither the shooting itself nor the shooter,

had no first-hand knowledge of the events surrounding the shooting, and

could not definitively place Appellant at the scene of the crime. Appellant’s

brief, at 6-7. Yet, the record shows McDowell testified he began to run when

he saw Appellant aim the gun high at Garfield, and he heard gunshots just

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seconds later. N.T., 3/22/17, at 69-70. McDowell also testified Appellant later

admitted to him that he shot Garfield because Garfield was winning all the

money at the dice game. N.T. at 77-78.

      Similarly, Appellant contends that Karee Freeman took the stand and

recanted his earlier accusation of Appellant as Mr. Garfield’s shooter.

However, the Commonwealth introduced the video interview of Freeman taken

during the investigation where Freeman described in detail how he heard a

gunshot at the dice game, turned to see Garfield fall to the ground, and

watched Appellant shoot Garfield two times in the face. N.T., 3/21/17, at 207-

210. The medical examiner later testified that Garfield was shot twice in the

face and once in the neck, with two of the shots proving immediately fatal.

       To convict a defendant of first-degree murder, the Commonwealth

must prove: a human being was unlawfully killed; the defendant was

responsible for the killing; and the defendant acted with malice and a specific

intent to kill. See 18 Pa.C.S.A. § 2502(a); Commonwealth v. Brown, 987

A.2d 699, 705 (Pa. 2009); Commonwealth v. Sherwood, 982 A.2d 483,

491–492 (Pa. 2009) (citations omitted). The fact-finder “may infer that the

defendant had the specific intent to kill the victim based on the defendant's

use of a deadly weapon upon a vital part of the victim's body.” Brown, supra,

quoting Commonwealth v. Blakeney, 946 A.2d 645, 651 (Pa. 2008).

Malice, as well, may be inferred from the use of a deadly weapon upon a vital

part of the victim's body. Commonwealth v. Gardner, 416 A.2d 1007, 1008

(Pa. 1980).

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       Here, the Commonwealth provided sufficient evidence, through the

testimonies of eyewitnesses and the medical examiner, that Appellant

intentionally and fatally shot Mr. Garfield. To the extent Appellant argues such

testimonies were inconsistent and unreliable, he conflates his sufficiency

argument with his weight claim.                It is well-settled that credibility

determinations “go to the weight, not the sufficiency of the evidence.”

Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa.Super. 2012).

       Turning, then, to Appellant’s weight of the evidence claim,4 we note the

following:

       A motion for a new trial based on a claim that the verdict is against
       the weight of the evidence is addressed to the discretion of the
       trial court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. Rather, the role of
       the trial judge is to determine that notwithstanding all the facts,
       certain facts are so clearly of greater weight that to ignore them
       or to give them equal weight with all the facts is to deny justice.
       It has often been stated that a new trial should be awarded when
       the jury's verdict is so contrary to the evidence as to shock one's
       sense of justice and the award of a new trial is imperative so that
       right may be given another opportunity to prevail.

       An appellate court's standard of review when presented with a
       weight of the evidence claim is distinct from the standard of review
       applied by the trial court:

       Appellate review of a weight claim is a review of the exercise
       of discretion, not of the underlying question of whether the
       verdict is against the weight of the evidence. Because the
       trial judge has had the opportunity to hear and see the evidence
____________________________________________


4Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).


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      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court's determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court's conviction
      that the verdict was or was not against the weight of the evidence
      and that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (internal

citations and quotation marks omitted) (emphasis in original).

      Appellant’s weight of the evidence argument, in its entirety, states that

his verdict shocks the conscience where “no witnesses identified [him] as the

person responsible for the murder of Mr. Garfield.” Appellant’s brief, at 7-8.

As discussed above, however, two eyewitnesses gave sworn statements

identifying Appellant as the man who murdered Mr. Garfield, and the jury

found these incriminating statements credible despite zealous cross-

examination by the defense. Hence, we discern no abuse of discretion in the

trial court’s denial of Appellant’s post-trial weight of the evidence claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/18




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