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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                    v.                         :
                                               :
SHAYVON AKEEM MO MORGAN,                       :           No. 625 MDA 2019
                                               :
                          Appellant            :


      Appeal from the Judgment of Sentence Entered January 3, 2019,
                in the Court of Common Pleas of York County
              Criminal Division at No. CP-67-CR-0002985-2017


BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                          FILED JUNE 23, 2020

     Shayvon Akeem Mo Morgan appeals the January 3, 2019 judgment of

sentence, entered in the Court of Common Pleas of York County, after a jury

convicted    him   of    receiving    stolen   property;    criminal   conspiracy   to

manufacture, deliver, or possess with intent to manufacture or deliver;

firearms not to be carried without a license; and in persons not to possess a

firearm.1 The trial court sentenced appellant to an aggregate term of 6 to

13 years’ incarceration. We affirm.

     The following facts were gleaned from the trial court’s Rule 1925(a)

opinion:    Appellant and his co-conspirator, Dysheem Jones, fled from the

scene of an automobile accident and ran towards Rutter’s Dairy.               There,


118 Pa.C.S.A. §§ 3925(a), 903(a)(1) (35 P.S. § 780-113(a)(30)), 6106(a)(1),
and 6105(a)(1), respectively.
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appellant and Jones approached Dennis Hoke, a Rutter’s employee, and

offered him $100 to give them a ride out of the area.         When Hoke asked

appellant and Jones where they wanted to go, they responded “anywhere but

here.”   Hoke described their demeanor as being “very, very nervous.”

Although Hoke saw neither appellant nor Jones deposit anything on the

ground, after they left the area Hoke observed a clear plastic bag of marijuana

and another bag of a white powdery substance, consistent with crack cocaine,

lying on their path. (Trial court opinion, 11/8/19 at 3-5.)

      Appellant and Jones proceeded to enter a Budget Rental. When asked

by the manager, Joseph Charles, if he could help them, they responded that

they were waiting for their girl to come.      Then appellant went into the

bathroom, and Jones went into a backroom. Charles asked Jones if he could

be of assistance, and Jones replied that he was just leaving. Charles informed

Jones that the back door was locked.     While Jones was attempting to exit

through the front door, State Trooper Patrick Kelly was entering the building.

Jones was taken into custody. A search revealed Jones was in possession of

cocaine, heroin, and marijuana. (Id. at 5-6, 9.)

      Appellant exited the bathroom and surrendered to Trooper Kelly.

Although no drugs were found on his person, he was in possession of $506 in

cash. Shawn Chambers, a Budget employee, testified that she had cleaned

the bathroom the previous day. She stated that she put the bathroom trash

can near the bathroom door with a new trash bag draped over its side. When



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she returned the day of the incident, she put in the new bag. At that time, all

that was in the trash can were some paper towels. Chambers further testified

that no one had entered the bathroom prior to appellant. Trooper Richard

Sentak testified that he searched the bathroom and recovered a firearm from

the trash can.      The firearm was operable and appellant was ineligible to

possess a firearm. (Id. at 6-10.)

        On September 20, 2018, a jury convicted appellant of all counts.

Appellant was sentenced on January 3, 2019. Timely post-sentence motions

were filed and denied by the trial court. Appellant timely appealed. The trial

court ordered appellant to file a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(b), and he timely complied. Thereafter,

the trial court filed its Rule 1925(a) opinion.

        Appellant complains that the trial court abused its discretion when it

denied his request for a prior inconsistent statement instruction.2




2   Appellant inartfully frames his issue as follows:

              [Whether t]he trial court abused its discretion when it
              denied [a]ppellant’s request for a jury instruction on
              prior    inconsistent   statements[?]          A   key
              Commonwealth witness provided a substantially
              different statement at trial implicating [a]ppellant in
              criminal activity compared to the statements provided
              prior to trial. The instruction on prior inconsistent
              statements was appropriate under the circumstances
              and not harmless error.

Appellant’s brief at 4.


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      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Galvin, 985 A.2d 783, 798-799 (Pa. 2009).

      Under Pa.R.Crim.P. 603 and 647(C),

            the mere submission and subsequent denial of
            proposed points for charge that are inconsistent with
            or omitted from the instructions actually given will not
            suffice to preserve an issue, absent a specific
            objection or exception to the charge or the trial court’s
            ruling respecting the points [for charge].

Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa. 2015).

      Here, appellant’s counsel requested a charge on prior inconsistent

statements. (Notes of testimony, 9/18/18 at 279-281.) The trial court denied

counsel’s request, and counsel did not object or take exception to the ruling.

(Id., at 286.) Following the jury charge, the trial court inquired as to whether

counsel had anything further and counsel did not object or take exception to

the charge. (Id. at 363.) Appellant, therefore, waived his challenge to the

jury charge.3

      Judgment of sentence affirmed.


3 Even if a specific objection had been lodged, this claim still fails because the
evidence did not support the charge. See Commonwealth v. Buterbaugh,
91 A.3d 1247, 1257 (Pa.Super. 2014) (noting trial court should not instruct
on legal principles not supported by evidence), appeal denied, 104 A.3d 1
(Pa. 2014), see also Commonwealth v. Rayner, 153 A.3d 1049, 1061-1062
(Pa.Super. 2016) (finding prior inconsistent statement must be incompatible
with trial testimony), appeal denied 169 A.3d 1046 (Pa. 2017), certiorari
denied,       U.S.      , 138 S.Ct. 976 (2018).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/23/2020




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