J. S63003/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                      v.                     :
                                             :
JAMAR MATTHEWS,                              :           No. 2468 EDA 2015
                                             :
                           Appellant         :


            Appeal from the Judgment of Sentence, June 26, 2015,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0003979-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED SEPTEMBER 16, 2016

      Jamar Matthews appeals from the June 26, 2015 aggregate judgment

of sentence of 13 to 26 years’ imprisonment imposed after he was found

guilty of attempted murder, criminal conspiracy to commit murder,

aggravated assault, possession of a firearm, carrying a firearm without a

license,   carrying   a    firearm   on   public   streets   or   public   property   in

Philadelphia, and possessing instruments of crime (“PIC”).1                After careful

review, we affirm.

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

             [O]n November 29, 2013, at approximately
             9:45 p.m., [Philadelphia Police Officer Milord Celce]

* Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 901, 903, 1102(c), 2702, 6105, 6106, 6108, and 907,
respectively.
J. S63003/16


          received a radio call for a shooting and person with a
          gun at 2603 West Harold Street in Philadelphia.
          Officer Celce, who was approximately four (4) blocks
          away at the time, promptly arrived at the above
          location, where he observed bullet holes in the
          windows     and    encountered      the   complainant,
          Enoch Carter.     Based on his conversation with
          Mr. Carter, they proceeded to 2642 North 26th Street
          -- literally just around the corner, not even
          30 seconds later --where they met Highway Patrol
          Officer Reid, and knocked on the door. Appellant,
          who was in a wheelchair, answered the door; his
          cohort, Co-Defendant Karie Dozier (hereinafter
          “Dozier”), was seated on a couch directly facing the
          front door of the residence. As soon as Mr. Carter
          saw Dozier, he yelled and pointed to him, [t]hat’s
          the guy.

                 Officer Celce placed Dozier on the floor to
          detain him. He lifted the cushion where Dozier was
          sitting and recovered a handgun; Dozier was sitting
          on the gun. Officer Celce escorted Dozier outside,
          where he was positively identified by Mr. Carter, and
          took him into custody.        Mr. Carter also was
          transported to Central Detectives for an interview,
          during which Officer Celce learned of [a]ppellant’s
          involvement; he then went back to the residence and
          placed [a]ppellant under arrest at 12:15 a.m.

          . . . . Mr. Carter testified that, prior to the shooting,
          he had lived around the corner from [a]ppellant for
          approximately one and one-half (1½) years and was
          friends with him. Mr. Carter used to hang out with
          [a]ppellant frequently, and also helped him with
          chores such as laundry and grocery shopping.
          Several weeks before the shooting, on October 17,
          2013, [a]ppellant was driving a van (with
          handicapped hand controls) in which Mr. Carter and
          a female friend of [a]ppellant were riding as
          passengers. Approaching a red light, [a]ppellant
          mistook the accelerator for the brakes, and crashed
          into a building, injuring Mr. Carter and the female.
          Appellant was arrested at the scene for his
          involvement in the crash.              Mr. Carter was


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          transported to the hospital via ambulance for
          treatment and subsequently required physical
          therapy for his injuries.      Several weeks later,
          Mr. Carter commenced a personal injury lawsuit
          against [a]ppellant, which [a]ppellant took to heart.
          Appellant thereafter had several different individuals
          approach Mr. Carter to persuade him to “drop” the
          lawsuit, including a younger gentleman earlier on the
          day of the shooting, who proposed a fistfight in front
          of [a]ppellant’s residence. Mr. Carter declined the
          proposal and went home.

                Later    that    evening,    at     approximately
          9:40 p.m.,    Co-Defendant      Dozier     knocked  on
          Mr. Carter’s door. Mr. Carter stuck his head out of
          his second-story window to see who it was. Dozier
          asked him why he had a beef with [a]ppellant;
          Mr. Carter explained that he did not have a problem
          with [a]ppellant, it was [a]ppellant who had a
          problem with him due to the lawsuit. After speaking
          with Dozier for five (5) to seven (7) minutes,
          [a]ppellant approached on his wheelchair and parked
          it next to Dozier. Dozier then asked [a]ppellant,
          “what do you want me to do[?]” at which point
          [a]ppellant said “go ahead[.]” Right on cue, Dozier
          retrieved a black handgun, pointed it at Mr. Carter
          and opened fire. Mr. Carter saw the flash from the
          gun, and a bullet went through his window; he fell
          back into the home. As he was falling, Dozier fired
          several more shots at him. Fortunately, none of the
          bullets struck Mr. Carter, who immediately dialed
          911 to summon police. During the call, he provided
          a physical description of Dozier and reported
          [a]ppellant’s involvement. A few minutes later, he
          accompanied police to [a]ppellant’s residence, where
          Dozier and the handgun were taken into custody
          following Mr. Carter’s positive identification.

          . . . . [Ballistics expert and] Philadelphia Police
          Officer Jesus Cruz testified that he test-fired the
          handgun that Dozier was sitting on and compared
          the fired cartridge casing (“FCC”) with the five (5)
          FCCs recovered in front of Mr. Carter’s residence.
          Based on his analysis, which was peer-reviewed, he


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          concluded to a reasonable degree of scientific
          certainty that each of the five (5) FCCs recovered at
          the scene was, in fact, fired from Dozier’s handgun.

          . . . Philadelphia Police Detective Michael Repici . . .
          testified that, on November 29, 2013, he was
          assigned     to   investigate   this   matter.       At
          approximately 11:35 p.m., he interviewed Mr. Carter
          at Central Detectives. When Mr. Carter described
          [a]ppellant’s involvement, Detective Repici asked
          Officer Celce -- who was present -- if he knew where
          this guy is? Officer Celce responded, [y]eah, he’s
          still back there, at which point Detective Repici
          directed him to arrest [a]ppellant. Officer Celce
          embarked on this quest a few minutes prior to
          12:00 a.m.

                Detective Repici then went to the crime scene,
          2603 Harold Street, which was being held, or
          secured, by fellow officers. There, he recovered
          under property receipt four (4) FCCs on the
          pavement and one (1) FCC in the street, all in close
          proximity to each other in front of Mr. Carter’s
          residence.   He also took photographs of all the
          evidence, including the bullet holes in the windows
          and inside the residence, which he described as the
          photos were displayed to the jury. Detective Repici
          then proceeded to 2642 North 26th Street, where he
          took photographs of the couch and black handgun,
          the latter of which he recovered under property
          receipt.

                 Finally, the Commonwealth introduced via
          stipulation: (a) certificates of non-licensure with
          respect to both [a]ppellant and Dozier, establishing
          that neither male was licensed to carry a firearm and
          thus not permitted to carry a firearm in
          Pennsylvania; (b) authenticity of prison phone call
          records between [a]ppellant and Dozier, in which
          they discuss methods to prevent the case from going
          forward -- which recordings were played for, and
          their transcripts displayed to, the jury.




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Trial court opinion, 12/24/15 at 2-5 (citations to notes of testimony,

footnotes, and some internal quotation marks omitted).

        Appellant was arrested in connection with this incident and charged

with the aforementioned offenses on April 15, 2014.         On April 21, 2015,

appellant proceeded to a jury trial alongside co-defendant Dozier.2 Following

a three-day trial, the jury found appellant guilty of attempted murder,

criminal conspiracy to commit murder, aggravated assault, carrying a

firearm without a license, carrying a firearm on public streets or public

property in Philadelphia, and PIC.      That same day, the trial court found

appellant guilty of possession of a firearm.     Following the completion of a

pre-sentence investigation (“PSI”) report, the trial court sentenced appellant

to 13 to 26 years’ imprisonment on June 26, 2015.             On July 6, 2015,

appellant filed post-sentence motions for judgment of acquittal and for

reconsideration of his sentence.          The trial court denied appellant’s

post-sentence motions on July 8, 2015.         This timely appeal followed on

August 6, 2015.3

        On appeal, appellant raises the following issues for our review:

              I.    Did the admission of a statement by a
                    non-testifying     co-defendant        implicate
                    [a]ppellant in the shooting for which he was
                    charged, thereby violating [a]ppellant’s right of
                    confrontation, and was the error in admitting
                    the statement not harmless?

2
    Dozer has also filed an appeal to this court at No. 2171 EDA 2015.
3
    Appellant and the trial court have complied with Pa.R.A.P. 1925.


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            II.    Was the evidence insufficient to prove that
                   [a]ppellant had the specific intent to kill, which
                   was required to prove him guilty of either
                   attempted murder or conspiracy to murder?

            III.   Did the trial court abuse its discretion by
                   imposing a sentence that was above the
                   aggravated range of the sentencing guidelines
                   absent aggravating factors not already
                   included in the sentencing guidelines?

Appellant’s brief at 5.

      Appellant first argues that his rights under the Confrontation Clause4

were violated when the trial court permitted the Commonwealth to introduce

a statement of Dozier that implicated him in the shooting.          (Id. at 12.)

Specifically, at trial, the Commonwealth introduced recordings of Dozier’s

prison telephone conversations with appellant wherein they discuss bribing

Carter so he would not testify against them. (See Commonwealth’s Exhibit

24.) During the course of these conversations, Dozier stated to appellant as

follows:

            Yea, but listen though, like you know what I’m
            saying, but listen like tell that n***a like we waving
            the white flag man like, tell that n***a like he got to
            check whatever dawg.

Id. at 3.    Appellant challenges the admission of this statement on the

grounds it violated the United States Supreme Court’s decision in Bruton v.


4
  The Confrontation Clause of the Sixth Amendment, made applicable to the
States via the Fourteenth Amendment, provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI.


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United States, 391 U.S. 123 (1968), and its progeny. (Appellant’s brief at

13-14.) This claim is meritless.

      In the seminal case of Bruton, the United States Supreme Court

recognized a narrow        exception to   the   general rule   that cautionary

instructions are sufficient to eradicate any potential prejudice in joint trials.

Bruton, 391 U.S. at 124-126. The United States Supreme Court held that a

defendant is deprived of his rights under the Confrontation Clause when his

non-testifying co-defendant’s confession naming him as a participant in the

crime is introduced at trial, even if the jury is instructed to consider that

confession only against the co-defendant. Id. at 135-136.

      Our supreme court has recently summarized Bruton and its progeny

as follows:

                     The general rule in a joint trial of
              co-defendants is that the law presumes that the jury
              can follow an appropriate instruction, which explains
              that evidence introduced with respect to only one
              defendant cannot be considered against other
              defendants.     Bruton departed from this salutary
              general rule only by concluding that where there are
              “powerfully incriminating statements” admitted
              against a non-testifying co-defendant who stands
              side by side with the accused, such statements can
              be devastating as well as inherently suspect when
              they shift the blame to the accused.        Following
              Bruton, the U.S. Supreme Court has approved
              redaction and a limiting instruction as a means of
              eliminating the possible spillover prejudice arising
              from     the    admission    of    a    non-testifying
              co-defendant’s confession against that co-defendant
              at a joint trial. Bruton and its progeny establish
              Sixth Amendment norms governing state criminal
              trials, and this Court has had ample opportunity to


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            consider and apply the precepts.        In our own
            implementation of this federal law, we have
            explained that the challenged co-defendant’s
            statement must be incriminating on its face and that
            redactions involving the substitution of neutral
            pronouns . . . instead of names or other obvious
            methods of deletion, do not obviously identify the
            other co-defendants.

Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014) (citations

omitted).

      Applying these well-settled principles, we conclude that Dozier’s

statement did not give rise to a Bruton violation because it did not explicitly

reference or facially incriminate appellant in any way.      As the trial court

recognized in its opinion, Dozier’s statement “is a vague statement that does

not even rise to being an admission or a defense strategy” and “can have

multiple interpretations [] depending upon [] Dozier’s state of mind, which is

not of record.” (Trial court opinion, 12/24/15 at 7.) Accordingly, Bruton

and its progeny are not applicable to the case sub judice and appellant’s

claim of trial court error must fail.

      Appellant next argues that the evidence was insufficient to support his

convictions for attempted murder and criminal conspiracy to commit murder,

as the Commonwealth failed to prove he and his co-defendant Dozier shared

a specific intent to kill Carter. (Appellant’s brief at 15.) Appellant maintains

that “[a]t best, the evidence supports the inference that [he] solicited Dozier

to engage in some form of retaliation against Carter.”       (Id. at 16.)   We

disagree.


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                  In reviewing the sufficiency of the evidence,
            we must determine whether the evidence admitted
            at trial and all reasonable inferences drawn
            therefrom, viewed in the light most favorable to the
            Commonwealth as verdict winner, is sufficient to
            prove every element of the offense beyond a
            reasonable doubt. As an appellate court, we may
            not re-weigh the evidence and substitute our
            judgment for that of the fact-finder. Any question of
            doubt is for the fact-finder unless the evidence is so
            weak and inconclusive that as a matter of law no
            probability of fact can be drawn from the combined
            circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal

denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).

     “A person commits an attempt when with intent to commit a specific

crime, he does any act which constitutes a substantial step towards the

commission of the crime.”       18 Pa.C.S.A. § 901(a).         A conviction for

attempted   murder   requires   the   Commonwealth       to   prove   beyond   a

reasonable doubt that the defendant “t[ook] a substantial step toward the

commission of a killing, with the specific intent in mind to commit such an

act.” Commonwealth v. Tucker,               A.3d    , 2016 WL 4035602, at *7

(Pa.Super. July 19, 2016) (citation omitted).      Criminal conspiracy, in turn,

requires the Commonwealth to establish that appellant “(1) entered into an

agreement to commit or aid in an unlawful act with another person or

persons; (2) with a shared criminal intent; and (3) an overt act was done in

furtherance of the conspiracy.”    Commonwealth v. Mitchell, 135 A.3d

1097, 1102 (Pa.Super. 2016).



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       It is the element of a willful, premeditated, and deliberate intent to kill

that distinguishes first-degree murder from all other types of criminal

homicide. “To convict a defendant of first-degree murder, the jury must find

that (1) a human being was unlawfully killed; (2) the defendant is

responsible for the killing; and (3) the defendant acted with a specific intent

to kill.”   Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008),

cert. denied, 556 U.S. 1186 (2009) (citation omitted); 18 Pa.C.S.A.

§ 2502.

       Viewing    the   evidence     in    the     light   most   favorable   to   the

Commonwealth, the verdict winner, we find that there was ample evidence

for the jury to conclude that appellant possessed the specific intent to kill

Carter.     The testimony presented at trial established that appellant was

angry with Carter for filing a lawsuit against him and made multiple attempts

to persuade him to forgo the suit. (Notes of testimony, 4/22/15 at 10-14,

22-23, 97.) On the day of the alleged incident, appellant recruited another

individual to challenge Carter to a fistfight in front of appellant’s residence,

to no avail.     (Id. at 97.)      Later that evening, appellant was observed

alongside Dozier when he was speaking with Carter about the “beef” he had

with appellant.    (Id. at 15-18.)        During the course of this conversation,

appellant expressly directed Dozier to “go ahead.” (Id. at 19.) The record

reveals that Dozier fired five gunshots at Carter’s head as he hung out of his

second-story window, narrowly missing him.                  (Id. at 19-20, 68-69.)



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Philadelphia Police Officer Celce found appellant and Dozier sitting together

at appellant’s residence minutes after this incident.        (Notes of testimony,

4/21/15 at 90-92.)

      We note that “[t]he firing of a bullet in the general area in which vital

organs are located can in and of itself be sufficient to prove specific intent to

kill beyond a reasonable doubt.”      Commonwealth v. Manley, 985 A.2d

256, 272 (Pa.Super. 2009), appeal denied, 996 A.2d 491 (Pa. 2010)

(citation   omitted).   Moreover,    this     court   has   recognized   that,   “all

conspirators are equally criminally responsible for the acts of their

co-conspirators committed in furtherance of the conspiracy regardless of

their individual knowledge of such actions and regardless of which

member of the conspiracy undertook the action.” Commonwealth v.

Figueroa, 859 A.2d 793, 798 (Pa.Super. 2004) (citation omitted; emphasis

added). Accordingly, appellant’s sufficiency claims must fail.

      In his final claim, appellant challenges the discretionary aspects of his

sentence.    Appellant argues that the trial court abused its discretion in

imposing an excessive sentence above the aggravated range of the

sentencing guidelines without considering any factors not already included in

the guidelines or any mitigating factors. (Appellant’s brief at 19.)

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.   See Commonwealth v. Allen, 24 A.3d

1058, 1064 (Pa.Super. 2011).          Rather, an appellant challenging the



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discretionary aspects of his sentence must invoke this court’s jurisdiction by

satisfying the following four-part test:

            (1) whether the appeal is timely; (2) whether
            [a]ppellant preserved his issue; (3) whether
            [a]ppellant’s brief includes a concise statement of
            the reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a
            substantial question that the sentence is appropriate
            under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Instantly, appellant filed a timely notice of appeal and preserved his

issue in his post-sentence motion, but failed to include a separate statement

of reasons relied upon for allowance of appeal in his brief, as required by

Pa.R.A.P. 2119(f). “A failure to include the Rule 2119(f) statement does not

automatically waive an appellant’s argument; however, we are precluded

from reaching the merits of the claim when the Commonwealth lodges an

objection to the omission of the statement.”     Commonwealth v. Bruce,

916 A.2d 657, 666 (Pa.Super. 2007) (citation omitted), appeal denied, 932

A.2d 74 (Pa. 2007). Here, the Commonwealth has objected to the omission

of appellant’s Rule 2119(f) statement. (See Commonwealth’s brief at 19.)

Accordingly, we conclude that appellant has waived his challenge to the

discretionary aspects of his sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2016




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