J-A30018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                              Appellee

                       v.

RAHMIK BECKETT

                              Appellant               No. 1864 EDA 2014


              Appeal from the Judgment of Sentence May 16, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003562-2012

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee
                       v.
RAHMIK BECKETT

                            Appellant               No. 1865 EDA 2014

              Appeal from the Judgment of Sentence May 16, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003564-2012

BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY JENKINS, J.:                       FILED NOVEMBER 23, 2015

        Appellant Rahmik Beckett (“Appellant”) appeals the judgment of

sentence entered May 16, 2014 in the Philadelphia County Court of Common

Pleas following his jury trial convictions for voluntary manslaughter,1 assault
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2503.
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of a law enforcement officer,2 firearms not to be carried without a license,3

and possession of an instrument of crime.4 After careful review, we affirm.

        On September 28, 2011, Appellant shot Kevin Jones (“Victim”) eight

times, killing him.      As he fled, Appellant also fired multiple gunshots at

pursuing police.       As a result, on February 27, 2014, a jury convicted

Appellant of the above-referenced crimes. On May 16, 2014, the trial court

sentenced     Appellant    to   an    aggregate   term   of   20   to   40   years   of

incarceration.5 Appellant filed a post-sentence motion, which the trial court

denied on May 27, 2014.           Appellant filed a notice of appeal on June 20,

2014.6

        Appellant raises the following claims for review:

        I. Did the lower court err by admitting evidence of Appellant’s
        arrest for gun possession, which did not result in a conviction,
        when the fact of his arrest was not relevant and did not
        contradict any of his testimony?


____________________________________________


2
    18 Pa.C.S. § 2702.1.
3
    18 Pa.C.S. § 6106.
4
  18 Pa.C.S. § 907.
5
  The trial court sentenced Appellant to 10 to 20 years of incarceration for
the voluntary manslaughter conviction, 10 to 20 years of consecutive
incarceration for the assault of a law enforcement officer conviction, 2½ to
5 years of concurrent incarceration for the firearms not to be carried without
a license conviction, and 2½ to 5 years of concurrent incarceration for the
possessing an instrument of crime conviction.
6
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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      II. Where the homicide file of Kyleem Spain clearly referenced
      the decedent from the instant case as a possible suspect, was it
      error to deny Appellant the opportunity to confront Detective
      Nathan Williams on cross-examination after Detective Williams
      denied any reference to Decedent in the file?

      III. Did the lower court erroneously exclude portions of
      Decedent’s Facebook account that were relevant to establish
      Appellant’s legitimate fear of Decedent?

      IV. Did the lower court err by prohibiting the jury from bringing
      a copy of Appellant’s confession in its deliberations room
      pursuant to Pa.R.Crim.P. 646 where Appellant waived the
      protections under that rule and the Commonwealth agreed?

Appellant’s Brief, p. 5.

      Appellant’s first three claims involve the trial court’s evidentiary

rulings. See Appellant’s Brief, pp. 14-26. This Court has stated the well-

established standard of review for admission of evidence claims as follows:

      The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law. Thus, [this Court’s] standard of
      review is very narrow.        To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012).

      In his first issue, Appellant claims the trial court erred by permitting

the Commonwealth to introduce evidence regarding Appellant’s prior gun

possession arrest. See Appellant’s Brief, pp. 14-18. He is incorrect.

      The Judicial Code provides:

      No person charged with any crime and called as a witness in his
      own behalf, shall be asked, or if asked, shall be required to


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     answer, any question tending to show that he has committed, or
     been charged with, or been convicted of any offense other than
     the one wherewith he shall then be charged, or tending to show
     that he has been of bad character or reputation unless:

        (1) he shall have at such trial, personally or by counsel,
        asked questions of the witness for the prosecution with a
        view to establish his own good reputation or character, or
        has given evidence tending to prove his own good
        character or reputation; or

        (2) he shall have testified at such trial against a co-
        defendant, charged with the same offense.

42 Pa.C.S. § 5918.      Accordingly, “[i]t is fundamental that a criminal

defendant may not be questioned on cross-examination concerning an arrest

which has not resulted in conviction when the purpose of that question is to

impeach his character or to show a propensity to commit a crime.”

Commonwealth v. Petrakovich, 329 A.2d 844, 850 (Pa.1974). However,

if a defendant opens the door by delving into what would otherwise be

objectionable questioning, the prosecution may probe into the objectionable

area. Commonwealth v. Patosky, 656 A.2d 499, 504 (Pa.Super.1995).

     Here, on direct examination by defense counsel, Appellant testified

that he had limited involvement with guns prior to August 2011 as follows:

     [Defense counsel]: Now let’s move forward, getting up to
     September 26th or around there.

           Did there come a time when you started to carry a gun?

     [Appellant]: Yes.

     [Defense counsel]:      By come a time, I’m talking now in the
     time frame of February through September 28th of 2011.

           Were there times when you carried a gun?



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       [Appellant]: Yes.

       [Defense counsel]: Did that start around March and thereafter
       when you became aware of what Kevin Jones had supposedly
       done?

       [Appellant]:      I started carrying a gun like around the end of
       July, August.

       [Defense counsel]:          Were there other times when you were
       around guns?

       [Appellant]: Yes.

       [Defense counsel]: Or when you may have carried a gun for
       shorter periods of time?

       [Appellant]: Yes.

N.T. 2/24/2014, pp. 210-11.

       On    cross-examination,       the      Commonwealth   sought   to   question

Appellant about a gun possession arrest that occurred in April 2011, arguing

that Appellant’s testimony that he did not regularly carry a gun until August

2011 had opened the door on direct examination. See N.T. 2/25/2014, pp.

130-131. The trial court agreed, stating:

       THE COURT: I already ruled. I’m allowing it. It shows that he
       was specifically carrying a weapon on April 13, 2011, which
       would have been five months prior to this murder and
       [Appellant] indicated that he carried a weapon once in a while
       before that, I think, and then not until really August of ’11 did he
       carry a weapon, I guess, on a daily basis. So he talked about
       carrying a weapon. It comes in.

N.T. 2/25/2014, p. 131.7 This was not an abuse of discretion.
____________________________________________


7
  In response to the Commonwealth’s questioning about the prior gun
possession arrest, Appellant explained to the jury that, while the gun was in
(Footnote Continued Next Page)


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      Additionally, the trial court explained that any error in allowing such

cross-examination was harmless error:

            Even if the cross-examination of [Appellant] was error,
      such error was harmless. Questioning [Appellant] regarding his
      arrest posed no threat of prejudice to the defense, particularly
      after [Appellant] had already conceded to carrying a firearm.
      “Although a perfectly conducted trial is indeed the ideal objective
      of our judicial process, the defendant is not necessarily entitled
      to relief simply because of some imperfections in the trial, so
      long as he has been accorded a fair trial. ‘A defendant is entitled
      to a fair trial but not a perfect one.’” [Commonwealth] v.
      Martinolich,     318    A.2d    680,    695    (Pa.1974)    (citing
      [Commonwealth] v. Hill, 301 A.2d 587, 590 (Pa.1973)). Any
      prejudicial effect of the error, if any, was de minimus, merely
      cumulative, and could not have contributed to the verdict.

1925(a) Opinion, p. 16. We agree with the trial court’s assessment.

      Further, the trial court instructed the jury to consider this prior gun

arrest evidence only to illustrate that Appellant was around a gun in April

2011, and not for any other purpose.              We presume the jury followed the

court’s instruction and limited its consideration of the disputed evidence.

See Commonwealth v. Robinson, 864 A.2d 460, 514 (Pa.2004); see also

Commonwealth v. Baker, 614 A.2d 663, 672 (Pa.1992) (“The presumption

in our law is that the jury has followed instructions [of the trial court]”).

      Next, Appellant contends the trial court erred by not allowing Appellant

to impeach Detective Nathan Williams with the activity sheets in the
                       _______________________
(Footnote Continued)

the vehicle he was driving, it was not on his person and there were two
other individuals in the vehicle as well. See N.T. 2/25/2014, pp. 134-135.




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investigation file of another murder. See Appellant’s Brief, pp. 18-21. We

do not agree.

     “The general rule is that a prior inconsistent statement of a declarant

is admissible to impeach the declarant.” Commonwealth v. Henkel, 938

A.2d 433, 442 (Pa.Super.2007) (citing Commonwealth v. Brady, 507 A.2d

66, 68 (Pa.1986)). Additionally, a witness may be impeached with hearsay

where the hearsay “is a writing signed and adopted by the declarant.”

Pa.R.E. 803.1(1)(B). However, a party may not impeach a witness with the

statement of another.    Commonwealth v. Woods, 710 A.2d 626, 630

(Pa.Super.1998) (“it must be established that the witness, in fact, made the

allegedly inconsistent statement.”)

     Here, Appellant sought to impeach Detective Williams with an activity

sheet from the file of a separate case that involved the murder of Kyleem

Spain, Appellant’s friend whom Appellant believed the victim in the instant

matter had killed. See N.T. 2/21/2014, pp. 49-53. Detective Williams did

not work on the Spain murder investigation. Further, the detective did not

prepare, sign, or adopt the activity sheet. In fact, the detective disclaimed

any knowledge of the activity sheet from the Spain murder investigation.

See id. at 51-52. Therefore, Appellant could not have properly impeached




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Detective Williams with the Spain murder activity sheet,8 and the trial court

did not err by not allowing Appellant to cross-examine him with it.

       In his third issue, Appellant claims the trial court erred by excluding

two of the victim’s Facebook posts because they were relevant to Appellant’s

state of mind at the time he shot the victim. See Appellant’s Brief, pp. 22-

26. He is incorrect.

       The first of the victim’s Facebook posts expresses sympathy for a list

of notorious serial killers:

       R.I.P. Ted Bundy, Jon Gacy, Jim Jonez, Timothy Mcveigh, Son of
       Sam. Da Trenchcoat Mafia, which is the Columbine killers. All of
       our brotherz on their Ji’had. N all of da otha professionalz dat
       took their work seriously.

N.T. 2/19/2014, p. 46.         The trial court determined this post was not an

expression of an intent to commit violence or have others commit violence,

and therefore excluded the post as irrelevant. Id. at 47.

       The second excluded post read: “blow a nigga brains out just to see

what he thinking about”.          N.T. 2/19/2014, p. 54.   The trial court also

excluded this post as irrelevant, explaining:

       That’s out. It’s like some poetry he is writing.       It actually
       rhymes. No. It means nothing.


____________________________________________


8
  As the trial court points out, Appellant could have introduced the activity
sheet from the Spain murder by calling one of the detectives who actually
worked on that investigation to testify about its contents, but he did not.
See 1925(a) Opinion, p. 18.



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N.T. 2/19/2014, p. 55.

       The trial court properly excluded the Facebook posts as irrelevant and

non-probative.9      The court did not abuse its discretion in making these

evidentiary determinations.

       In his fourth claim, Appellant maintains that the trial court erred by

not allowing a copy of Appellant’s confession to go back with the jury during

deliberations.     See Appellant’s Brief, pp. 26-28.           Again, Appellant is

incorrect.

       Ordinarily, “[w]hether an exhibit should be allowed to go out with the

jury during its deliberation is within the sound discretion of the trial judge.”

Commonwealth           v.   Barnett,     50    A.3d   176,   194   (Pa.Super.2012);

Pa.R.Crim.P. 646(A); see also Commonwealth v. Bango, 685 A.2d 564

(Pa.Super.1996) aff’d, 742 A.2d 1070 (Pa.1999). This discretion, however,

is not absolute.     Pennsylvania Rule of Criminal Procedure 646 provides as

follows:

       Rule 646. Material Permitted in Possession of the Jury

       (A) Upon retiring, the jury may take with it such exhibits as the
       trial judge deems proper, except as provided in paragraph (C).

                                          *****

       (C) During deliberations, the jury shall not be permitted to
       have:
____________________________________________


9
 We note that the trial court ruled relevant and allowed Appellant to testify
extensively at trial about numerous other posts from the victim’s Facebook
account. See N.T. 2/24/2014, pp. 141-187.



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         (1) a transcript of any trial testimony;

         (2) a copy of any written or otherwise recorded
         confession by the defendant;

         (3) a copy of the information or indictment; and

         (4) except as provided in paragraph (B), written jury
         instructions.

Pa.R.Crim.P. 646 (emphasis provided).         This unambiguous rule expressly

forbids juries from having certain enumerated categories of exhibits during

deliberations, including defendant confessions.

      As our Supreme Court has explained:

      The underlying reason for excluding certain items from the jury’s
      deliberations is to prevent placing undue emphasis or credibility
      on the material, and de-emphasizing or discrediting other items
      not in the room with the jury. If there is a likelihood the
      importance of the evidence will be skewed, prejudice may be
      found; if not, there is no prejudice per se and the error is
      harmless.

Commonwealth v. Strong, 836 A.2d 884, 888 (Pa.2003); see also

Commonwealth v. Morton, 774 A.2d 750, 753 (Pa.Super.2001) (decided

under Pa.R.Crim.P. 646’s predecessor, Pa.R.Crim.P. 1114) (“The case law is

clear that the overriding concern of Rule [646]’s prohibition against written

confessions going out with the jury is that the physical presence of the

confession within the jury room may cause it to be emphasized over other

evidence in the form of testimony heard from the witness stand.”).        As a

result, this Court has repeatedly held that a trial court commits reversible

error by permitting a jury to have a defendant’s confession during

deliberations.   See Commonwealth v. Young, 767 A.2d 1072, 1076

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(Pa.Super.2001)       (jury   may     not      have   defendant’s   confession   during

deliberations); see also Barnett, supra (reversal where trial court violated

Rule 646 by allowing jury to have a note that was the functional equivalent

of a confession).      In response to a jury request to have the confession,

however, a trial court may allow the jury to review the confession in court.

See Commonwealth v. Morton, 774 A.2d 750, 753 (Pa.Super.2001) (no

error in trial court refusing to allow written confession to go out with jury,

but permitting jury to review written confession in jury box, which court

analogized to re-reading a portion of the transcript to the jury).

       Here, in compliance with Pa.R.Crim.P. 646, the trial court refused to

send Appellant’s confession back with the jury during deliberations. Instead,

the court brought the jury back into the courtroom and read the confession

while the jurors reviewed a copy of it displayed on a screen. This procedure,

analogous to re-reading a portion of the transcript to the jury, was correct

and permitted within the sound discretion of the trial court.10 See Morton,

supra. Accordingly, Appellant’s fourth claim fails.

       Judgment of sentence affirmed.




____________________________________________


10
  The fact that both Appellant and the Commonwealth agreed to allow the
confession to go back with the jury is immaterial. Rule 646 is express and
unambiguous in prohibiting confessions to go back with the jury during
deliberations. See Pa.R.Crim.P. 646(C)(2). This prohibition is not subject to
waiver, regardless of the parties’ agreement.



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J-A30018-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




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