J-A21011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RASHANN JAMES,

                            Appellant                No. 243 EDA 2013


            Appeal from the Judgment of Sentence August 31, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004752-2011


BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 07, 2014

       Rashann James appeals from his August 31, 2012 judgment of

sentence of fifteen to thirty years incarceration followed by five years

probation. The trial court imposed sentence after a jury convicted Appellant

of attempted murder, aggravated assault, firearms not to be carried without

a license, carrying a firearm on a public street in Philadelphia, and

possession of an instrument of crime. After careful review, we affirm.

       The facts giving rise to the charges were summarized by the trial

court:

            On November 19, 2010, at approximately 1:00 p.m., the
       Complainant (Stephanie Alexander) walked to a laundromat with
       her son Khalil, her daughter Shanay, and her granddaughter
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A21011-14


     Assaiah. Before they arrived, Shanay and Assaiah went to
     another store while the Complainant and Khalil walked to the
     laundromat.    While walking, Complainant noticed two men
     outside of a store on the 2600 block of Stanley Street. She


           Once they arrived at the laundromat, Complainant and her
     son entered and asked Johnny, the owner, for change. After
     receiving the change, the Complainant turned around and saw
     Appellant approximately [twenty] feet away.       The Appellant
     pulled a gun from his waistband and frantically pointed the gun
                                                          -
     Johnny immediately fled to the back of the store and Khalil
     followed, leaving the Complainant alone with Appellant.

           The Complainant approached the Appellant and said,
                                     -
     Appellant then approached Complainant, put the gun to the right
                                                       -
     Complainant dropped to her knees and put her head down just
     as Appellant pulled the trigger. Complainant heard a click and


     tried to unjam the gun, but he was unable to.      The Appellant
     then s
     the Complainant called the police.

           After the police arrived, they took the Complainant and

     Investigations Unit.   At Central Division, the Complainant met

     explained how the Appellant tried to murder her.               The
     Complainant described the Appellant as a black male,
     approximately [forty-three to forty-four] years old, [six foot two
     inches], a thin build, light skinned, and a small beard under his

     ran a computer image search and showed her electronic pictures
     of various suspects.   However, the Complainant said none
     matched her assailant. A week after the incident, Detective
     Keppol showed the Complainant additional pictures at her house,


     home a second time. On this date, Detective Keppol showed her
     a photo array of seven people, and she quickly identified the


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       Appellant.   On April 26, 2011, the Complainant identified
       Appellant again at a preliminary hearing.

             After the preliminary hearing, Khalil gave the Complainant
       a cell phone with a caller on the other end of the line. The



       him to the laundromat to retaliate against the Complainant

       who investigated an unrelated murder on August 22, 2010 on
       the 2600 block of Stanley Street.

Trial Court Opinion, 11/27/13, at 4-6.           (footnotes and internal citations to

the record omitted) (emphases omitted).

       On September 21, 2011, Appellant filed an omnibus pre-trial motion in

limine seeking to exclude three evidentiary matters. First, Appellant sought

to preclude the Commonwealth from introducing evidence of two murders,

purportedly unrelated to this case, occurring on Redner and Stanley Streets,

respectively. Second, Appellant sought to exclude evidence regarding shots

                                                                             timonial

evidence of an admission made to Complainant over the phone was

inadmissible.

       On January 10, 2012, after argument on the motion, the trial court

excluded evidence of the Redner Street murder1, but tentatively permitted


____________________________________________


1
    The Redner Street murder is a reference to CP-51-CR-0009461-2011, a
murder case that was pending against Appellant at the time of the instant
trial. The Commonwealth advised the court that it did not intend to mention
that case. N.T., 1/10/12, at 8. Appellant was subsequently convicted on
(Footnote Continued Next Page)


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evidence of the Stanley Street murder to be introduced as it was relevant to

motive in the present case.            That evidence was subsequently admitted.



                                                              .2   The trial court

ruled that the phone conversation during which Appellant admitted that he

was the assailant at the laundromat was sufficiently authenticated to be

admissible.

      The jury convicted Appellant of the aforementioned charges on

January 13, 2012, and the court sentenced him to an aggregate sentence of

fifteen to thirty years incarceration followed by five years probation.        On

September 10, 2012, Appellant filed a post-sentence motion alleging, inter

alia, that the evidence was insufficient to sustain the verdict, that the verdict

was against the weight of the evidence due to inconsistent identification



prejudicial, and that the trial court abused its discretion in admitting

evidence of the telephone call without authentication. On January 9, 2013,

this motion was dismissed by operation of law pursuant to Pa.R.Crim.P.

                       _______________________
(Footnote Continued)

September 11, 2013 of two counts of first-degree murder, among other
charges, and sentenced to two consecutive terms of life imprisonment
without parole. Appellant was not charged in connection with the Stanley
Street murder.
2
  Since Complainant willingly testified at trial, the trial court did not permit
evidence that shots were fired at her house to be admitted.



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720(B)(3).     Appellant immediately appealed and complied with the trial



complained of on appeal.         The trial court filed its Rule 1925(a) opinion on

November 27, 2013.

                                                                     s argument.

We excise the argument and restate the questions as follows:

       I. Did the trial court abuse its discretion by allowing
       [Complainant] to testify to the contents of [a phone call] that
       included both evidence of motive and the only evidence of a
       confession?

       II. Did the trial court abuse its discretion by allowing both
       [Complainant] and Detective Brian Peters to testify about an
       unsolved murder that did not involve [Appellant]?

       III. Was the evidence insufficient as a matter of law to identify
       [Appellant] as the perpetrator beyond a reasonable doubt?

       IV. Did the trial court abuse its discretion by not ruling on
                       -trial motions in limine to exclude evidence of
       both the phone call and the prejudicial other acts evidence] until
       after the opening arguments?

                        -5.



sufficiency of the evidence, because a sufficiency challenge, if successful,

entitles the defendant to discharge.3


____________________________________________


3
   We do not evaluate sufficiency of the evidence challenges based upon
review of a diminished record. Commonwealth v. Palmer, 751 A.2d 223,
227 (Pa.Super. 2000). If the evidentiary issues raised by Appellant are
deemed meritorious, the proper relief is a new trial.



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       In analyzing such claims, "we must determine whether the
       evidence admitted at trial, and all reasonable inferences drawn
       therefrom, when viewed in a light most favorable to the
       Commonwealth as verdict winner, support the conviction beyond
       a reasonable doubt." Commonwealth v. Brown, 2012 PA
       Super 150, 52 A.3d 320, 323 (Pa.Super. 2012). Critically
       important, we must draw all reasonable inferences from the
       evidence in favor of the Commonwealth as the verdict-winner.
       Commonwealth v. Hopkins, 2013 PA Super 122, 67 A.3d 817,
       820 (Pa.Super. 2013). "Where there is sufficient evidence to
       enable the trier of fact to find every element of the crime has
       been established beyond a reasonable doubt, the sufficiency of
       the evidence claim must fail." Brown, supra at 323. Of course,
       "the evidence established at trial need not preclude every
       possibility of innocence and the fact-finder is free to believe all,
       part, or none of the evidence presented." Id.

       The Commonwealth can meet its burden "by wholly
       circumstantial evidence and any doubt about the defendant's
       guilt is to be resolved by 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." Id. It is
       improper for this Court "to re-weigh the evidence and substitute
       our judgment for that of the fact-finder." Id. Additionally, "the
       entire record must be evaluated and all evidence actually
       received must be considered." Id.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

       Appellant     claims    the    evidence   is   legally   insufficient   because



He points to the fact that Complainant first described her assailant as six-

foot-two inches tall, then later as five-foot-seven inches tall.4

____________________________________________


4
    Detective Edward Keppol testified that the Complainant described her

approximately 6-2; thin build; light skinned; small beard under his chin;
wearing a dark-colored hooded sweat jacket; and he was also missing a
(Footnote Continued Next Page)


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J-A21011-14


brief at 37. Complainant initially reported that the gun placed at her head

was black in color, and subsequently identified it as silver. Id.

      The evidence herein, when viewed in the light most favorable to the

Commonwealth, i

Complainant testified that her assailant was one and one-half feet to two

feet away from her for several minutes.           His face was uncovered.   She

described him to police as a black male with light skin, tall, with a beard,

and missing teeth. He was the same man she had seen with the man she



Stanley Street as she entered the laundromat.          N.T., 1/12/12, at 14-15.

The Complainant subsequently selected Appellant as her assailant from a

photographic array. She identified him at a preliminary hearing and again at

trial as the man who held the gun to her head in the laundromat. Id. at 8.

She was completely sure that Appellant was the man who attempted to kill

her. We find such identification testimony legally sufficient to support the

convictions.

      Under the guise of sufficiency, Appellant argues that inconsistencies in

                                                           color of the gun and




                       _______________________
(Footnote Continued)


Appellant was approximately six feet tall. Id. at 127.



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J-A21011-14


evidence insufficient.     He also points out that four eyewitnesses were not

called to testify.5



statements go to the weight rather than sufficiency of the evidence.       The



evidence.6     Appellant generally alleged that the verdict was against the

weight of the evidence in his post-trial motion, and he reiterated that claim

in his Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Thus, it is preserved. Regardless, it affords no relief.

       In Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013)

(internal citations and quotations omitted), our High Court explained the trial



             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
____________________________________________


5
  The Commonwealth presented the testimony of Detective Edward Keppol,
who detailed his investigation of the instant case. He testified that he

two of the witnesses but they were unavailable.
6
                                               was insufficient because the
phone-call confession was not credibly authenticated will be discussed in
conjunction with alleged errors in the admission of evidence. See infra n.3.




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       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.



of discretion, not the underlying question of whether the verdict is against

the weight of the evidence. Id. Since the trial court observed the witnesses



consideration to the findings and reasons advance by the trial judge when

reviewing

the weight of the evidence. Id



granting or denying a new tri           Id

course pursued represents not merely an error of judgment, but 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-     Id. at 1055.




                                        Trial Court Opinion, 11/27/13, at 29.

We find no abuse of discretion.




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admissibility of certain pieces of evidence.        Our standard of review of the

                                          ollows:

             Admission of evidence is within the sound discretion of the
      trial court, and this Court will find the trial court abused its
      discretion only where it is revealed in the record that the court
      did not apply the law in reaching its judgment or exercised
      manifestly unreasonable judgment or judgment that is the result
      of partiality, prejudice, bias, or ill will.

Commonwealth v. McKellick, 24 A.3d 982, 986 (Pa.Super. 2011).



conversation, allegedly between Appellant and Complainant, which contained



relies upon Commonwealth v. Carpenter, 372 A.2d 806, 808 (Pa. 1977),

in   support   of   his   claim   that   the   telephone   call   was   not   properly

authenticated. He contends that since the Complainant had never met him

or heard his voice before the day at the laundromat, had never heard his

voice on the telephone, and did not hear his voice between the day of the

assault and the phone call, she could not have the requisite familiarity with

his voice to authenticate it. He directs our attention to Commonwealth v.

Woodbury

witness positively identified the voice she heard outside her door as the




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J-A21011-14


argues that evidence tantamount to a confession could not be harmless

error. See Arizona v. Fulminante, 499 U.S. 279 (U.S. 1991).

         In Carpenter, supra                                      before one

of two parties to a telephone conversation may testify as to the substance of



Pa.R.E. 901(b)(5) (rescinded and replaced, effective March 18, 2013)



voice at any time under circumstances that connect it with the alleged



testimony recognizing the voice, but it can also be established through

circumstantial evidence.    In Carpenter, the defendant was charged with

third-

                                                                  him to the



statements indicated that he was the person who attempted to kill the wife.

Id. at 808. Our Supreme Court summarized the testimony:

                                             that some time later he
         answered the telephone, which was ringing, whereupon he
                                                                   .
         He immediately advised Detective George Hedgeman of the

         Hedgeman related that when he took the receiver and placed it

         testimony, Hedgeman replied she was in the hospital and
         requested the caller to identify himself, whereupon the caller
         stated,
         up.


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Id. (emphasis added). The Court upheld the admissibility of the telephone



and the contents of the communication as reported by the detective. Id.

        Also at issue in Carpenter, supra, was another phone call allegedly

made by the defendant. A woman testified at trial that the defendant called

her and told her he killed the victim.       Id.   She testified that she knew

Carpenter, had conversed with him approximately five or six times in

person, and three to four times on the telephone. She stated that she was

able to recognize his voice.      The Court concluded that this evidence

established the foundation requisite to permit testimony as to the

                                  Id



question of admissibility, but rather were properly a matter for the jury to

consi                                                    Id.



                                                                   -

She continued that after she testified at the preliminary hearing, she

received a telephone call from a man with the same voice as her assailant.




testifying regarding a murder on Stanley Street.




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J-A21011-14


      The trial court did not abuse its discretion in admitting this evidence.



her assailant.   In addition, the caller identified himself by his first name,

Rashann, and the context of the conversation provided details indicating that

he was familiar with the circumstances of the crime. He offered a motive for



was not credible is not considered for the purpose of admissibility; it goes to



admissibility of testimonial evidence of the phone call lacks merit.

      Next, Appellant alleges that the trial court abused its discretion in

permitting the Complainant and Detective Brian Peters to testify about an

unsolved murder that did not involve him.      Appellant argued prior to trial

that the Stanley Street murder of Anwar Ashmore could not be tied to him.

The Commonwealth disagreed. It explained to the trial court prior to trial



                                                                        -called

Stanley Street murder. Several months later, Raheem provided a statement

to homicide detectives in which he identified Ronald Thomas, (street name




son Khalil received a phone call on a cell phone. Khalil spoke first and then

handed the phone to the Complainant.           She recognized the voice as


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J-A21011-14




apologized for trying to kill her, and in response to her inquiry as to why

someone would want to kill her, Appellant told her that Wink instigated it in



Stanley Street.    Detective Peters further explained that Appellant, Wink,



known to frequent the 2600 block of Stanley Street.

      Appellant concedes that evidence of other acts may be admissible to

show motive or history of the case, but only where it is more probative than

prejudicial.   Pa.R.E. 404(b)(2) and (3) (rescinded and replaced effective

March 18, 2013). However, he alleges that the evidence of motive here was

not sufficiently connected to him to warrant admission of the facts

surrounding the Stanley Street killing of Ashmore.    He maintains that the

only link was the erroneously admitted telephone call. Hence, he contends

that admission of this evidence was reversible error as the prejudicial impact

outweighed any probative value.

      We have already concluded that there was no error in the admission of

the telephone call.   We agree with the Commonwealth that the testimony



in attempting to kill Complainant. See Commonwealth v. Green, 76 A.3d

575 (Pa.Super. 2013).     Bad acts evidence is admissible to show motive.

Pa.R.E. 404(b)(2). Furthermore, it is admissible as part of the res gestae of


                                    - 14 -
J-A21011-14


the case.        Id

information to police ab



the Complainant as expressed in the telephone call.      We do not find the

evidence to be unduly prejudicial as it did not implicate Appellant in the

Stanley Street murder.     Furthermore, it did not suggest that he had a

propensity to murder people and act in conformity therewith on this

occasion, which would be a basis to preclude such evidence.         Hence, no

relief is due.

      Finally, Appellant contends that the trial court abused its discretion

when it failed to rule on all motions in limine prior to trial.   He points to



motions shall be determined before trial. Trial shall be postponed by the




to timely and definitively rule on the admissibility of the telephone call and

evidence of the Stanley Street killing was prejudicial because he could not

defuse the impact of the phone call evidence in his opening statement, and

was forced to object repeatedly in front of the jury.

      The Commonwealth points out that the trial court preliminarily ruled

that the telephone call and the associated other acts evidence were

admissible, but deferred its final ruling until after lunch. Appellant did not


                                    - 15 -
J-A21011-14


object. After lunch, the trial court advised the parties that it was inclined to

rule in accord with its preliminary ruling, but wanted additional time. No one

was to mention the phone call during opening statements. Again, Appellant

did not object.



ruling prior to trial, Appellant has waived this issue on appeal.     Pa.R.A.P.



This Court noted in Commonwealth v. Metzer, 634 A.2d 228, 232 n.3

                                              on in limine is generally made

before trial, the trial court may elect to rule upon the application at a later



                                                                     ovide case



Complainant testified regarding the contents of the telephone call and the

situation with Holloman.

      Furthermore, Appellant fails to establish prejudice.      Since we have

previously concluded that the trial court did not abuse its discretion in

admitting this evidence, this is not a situation where the jury was exposed to

prejudicial inadmissible evidence. Moreover, as the Commonwealth correctly

points out, Appellant neglects to specify herein what his counsel would have

said in his opening statement to reduce the impact of this evidence.

Appellant merely avers generally that his counsel was deprived of the


                                     - 16 -
J-A21011-14




ci

      T



Commonwealth v. Parker, 882 A.2d 488, 493 (Pa.Super. 2005).                    Since



him as the perpetrator/telephone caller, we cannot conceive of any reason

why     his   counsel   would   undercut   that   strategy   by   discussing    the

circumstances surrounding the phone call that his client purportedly did not

make.

      Nor does Appellant indicate why his counsel was forced to repeatedly

object to this evidence and how he was prejudiced in that regard.               The

adverse ruling on the motion in limine was sufficient to preserve his

objection to the admissibility of this evidence for appellate review.           The




unrelated to the motion in limine.      For all of the aforementioned reasons,

Appellant is not entitled to relief.

      Judgment of sentence affirmed.




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J-A21011-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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