J-A01020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    DOMINICK BOOKER,

                             Appellant                No. 2700 EDA 2016


               Appeal from the Judgment of Sentence July 15, 2016
               in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No.: CP-51-CR-0002555-2014


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JULY 23, 2018

        Appellant, Dominick Booker, appeals from the judgment of sentence

imposed following his jury conviction of possessing an instrument of crime

(PIC), aggravated assault, conspiracy, and violations of the Uniform Firearms

Act (VUFA). The trial court sentenced him to a term of not less than sixteen

years nor more than fifty years of imprisonment in a state correctional

institution.   Appellant challenges several evidentiary rulings, inter alia, but

chiefly complains that he should get a new trial because his co-conspirator,

Dwayne Warren, who pleaded guilty and testified against him, received a

substantially shorter sentence. We affirm.



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*   Retired Senior Judge assigned to the Superior Court.
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      We derive the facts of the case from the trial court’s opinion and our

independent review of the record. (See Trial Court Opinion, 1/23/17, at 1-

7). Appellant’s conviction arises out of two related gunfights during a botched

robbery of a drug dealer outside of the Sidekicks Sports Bar in the Kensington

neighborhood of Northeast Philadelphia, on October 12, 2013.

      That night, Appellant and his co-conspirator, Dwayne Warren, by plan,

were waiting at the bar for their intended victim, identified only as a Hispanic

drug dealer. When he arrived, the three went outside together. Appellant

and Warren tried to rob the victim, but the robbery did not go as planned.

The drug dealer apparently pulled out his own handgun and began firing.

Both Appellant and Warren were shot; Appellant in the stomach, Warren in

the hand.

      Juan Rodriquez was working that night as a security guard at the bar.

When he heard gunshots, he went over to investigate.          The drug dealer

approached him for help. Appellant shot at the drug dealer and Rodriquez.

Rodriquez returned fire. The drug dealer fled.

      Appellant and Warren also fled the area in Warren’s red Pontiac Grand

Prix, almost running over Rodriquez, who had to jump out of the way.

Rodriquez fired back, shattering a car window. He then called the Philadelphia

police and gave a description of the car. Police were dispatched to neighboring

hospitals.




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      Police officers took Mr. Rodriquez to nearby St. Joseph’s Hospital.

There, the police found Appellant and Warren, and Warren’s red Grand Prix

with the driver’s side window shot out as described in the radio dispatch, and

confirmed by Rodriquez.

      St. Joseph’s Hospital staff decided that Appellant’s wound required

treatment at another hospital. Two of the officers accompanied Appellant in

the ambulance, while he was being transported from St. Joseph’s to

Hahnemann Hospital.       Officer Charles McLemore asked Appellant what

happened. Appellant told the officer that he was the victim of a robbery at a

Chinese store, but did not give a specific location for the store, or any

additional details.

      In June of 2015, Warren entered a guilty plea to attempted murder and

related crimes arising out of this incident. He testified against Appellant at

trial. Contemporaneous documentation strongly supports the finding that the

Commonwealth made no promise as to sentencing in exchange for Warren’s

testimony. Warren did concede on cross-examination that he hoped that the

sentencing court would look favorably on his cooperation.

      Prior to trial, Appellant filed a motion in limine to allow cross-

examination of Warren regarding a prior conviction for an armed robbery

committed not quite ten years before this attempted robbery, on June 25,

2004. In that case Warren was convicted of robbery, and PIC. At sentencing,

the Commonwealth withdrew numerous other charges, including VUFA.


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       In this case, the five-day jury trial began on March 2, 2016. In response

to the motion in limine, the court permitted inquiry about Warren’s “prior

gunpoint robbery” but not about his PIC conviction. (Trial Ct. Op., at 9).

       As previously noted, the jury convicted Appellant of PIC, aggravated

assault, conspiracy, and VUFA. The trial court sentenced him to a term of not

less than sixteen nor more than fifty years of imprisonment in a state

correctional institution.

       Separately, Warren received a sentence of not less than eleven and one-

half, nor more than twenty-three months of incarceration followed by ten

years of reporting probation. Appellant timely appealed.1

       Appellant raises four issues in this appeal:

             1. Did not the [trial] court abuse its discretion in denying
       [A]ppellant’s motion to introduce evidence of Dwayne Warren’s
       firearms conviction at trial, where such evidence was relevant to
       the defense theory that Mr. Warren was the shooter and it would
       not be unfairly prejudicial, confusing, or misleading?

             2. Did not the [trial] court err in denying [A]ppellant’s
       motion to suppress statements where the police subjected him to
       custodial interrogation by surrounding him and asking repeated
       questions to confirm their suspicions that he committed a crime
       while he was immobilized by medical necessity?

             3. Did not the [trial] court err in denying [A]ppellant’s
       motion for judgment of acquittal where the evidence against him
       is so unreliable and inconsistent to render the jury’s verdict the
       product of mere speculation and conjecture?



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1Appellant filed a statement of errors on September 23, 2016. The trial
court filed its opinion on January 23, 2017. See Pa.R.A.P. 1925.

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           4. Did not the [trial] court abuse its discretion in denying
      [A]ppellant’s motion for a new trial where [A]ppellant learned
      that, after his testimony in the instant matter, the
      Commonwealth’s star witness received a county sentence when
      he would otherwise have been subjected to a second-strike
      mandatory minimum sentence because the Commonwealth
      waived the mandatory minimum at sentencing?

(Appellant’s Brief, at 4-5).

      Appellant’s first issue challenges the trial court’s exclusion of some

evidence of a prior crime by his co-conspirator.

            When reviewing a claim concerning the admissibility of
      evidence, and specifically evidence of other crimes or bad acts by
      a defendant, we note:

                  The admission of evidence is a matter vested
            within the sound discretion of the trial court, and such
            a decision shall be reversed only upon a showing that
            the trial court abused its discretion. In determining
            whether evidence should be admitted, the trial court
            must weigh the relevant and probative value of the
            evidence against the prejudicial impact of that
            evidence. Evidence is relevant if it logically tends to
            establish a material fact in the case or tends to
            support a reasonable inference regarding a material
            fact. Although a court may find that evidence is
            relevant, the court may nevertheless conclude that
            such evidence is inadmissible on account of its
            prejudicial impact.

            An abuse of discretion is not merely an error of
            judgment, but is rather the overriding or
            misapplication of the law, or the exercise of judgment
            that is manifestly unreasonable, or the result of bias,
            prejudice, ill-will or partiality, as shown by the
            evidence of record.




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Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009),

appeal denied sub nom. Commonwealth v. Selenski, 986 A.2d 150 (Pa.

2009) (citations omitted).

     It is axiomatic that evidence of prior crimes is not admissible for
     the sole purpose of demonstrating a criminal defendant’s
     propensity to commit crimes. This rule is not without exception,
     however. Evidence may be admissible in certain circumstances
     where it is relevant for some other legitimate purpose and not
     utilized solely to blacken the defendant’s character. It is well-
     established that reference to prior criminal activity of the accused
     may be introduced where relevant to some purpose other than
     demonstrating defendant’s general criminal propensity. Thus,
     evidence of other crimes may be introduced to show

           (1) motive; (2) intent; (3) absence of mistake or
           accident; (4) a common scheme or plan; and (5)
           identity.

     Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278,
     1283 (Pa. Super. 2004) (internal citations omitted). This evidence
     may be admitted, however, “only upon a showing that the
     probative value of the evidence outweighs its potential for
     prejudice.” Pa. R. E. 404(b)(3).

Commonwealth v. Grzegorzewski, 945 A.2d 237, 239–40 (Pa. Super.

2008), appeal denied, 954 A.2d 575 (Pa. 2008).

     The evidence may also be admissible to impeach the credibility of
     a testifying defendant; to show that the defendant has used the
     prior bad acts to threaten the victim; and in situations where the
     bad acts were part of a chain or sequence of events that formed
     the history of the case and were part of its natural development.
     In order for evidence of prior bad acts to be admissible as evidence
     of motive, the prior bad acts must give sufficient ground to believe
     that the crime currently being considered grew out of or was in
     any way caused by the prior set of facts and circumstances.

Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002), cert. denied, 540

U.S. 850 (2003) (citation omitted).

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       Here, Appellant does not allege, let alone prove, Warren’s prior

conviction for PIC almost ten years earlier would establish evidence of motive,

intent, absence of mistake or accident, a common scheme or plan, or identity

in the armed robbery at issue here. Appellant does not assert that the crimes

at issue grew out of or in any other way were caused by the prior set of facts

and circumstances. Nor does he establish any of the other exceptions.

       Instead, Appellant presents a pure example of propensity evidence of

the simplest sort: one crime almost ten years before the fact, in unrelated

circumstances, is supposed to show propensity to commit the crimes at issue

in the instant case, specifically, which of the two co-conspirators (rather

gratuitously assuming it could only be one), used a firearm.

       The trial court properly exercised its discretion when it denied the

motion in limine, to the extent it excluded cross-examination of Warren about

the previous PIC conviction.2 Appellant’s first issue does not merit relief.

____________________________________________


2Appellant argues his motion in limine should have been granted because the
evidence of a prior conviction for VUFA was “probative” of whether co-
conspirator Warren (not Appellant Booker) was the assailant in this case.
(Appellant’s Brief, at 20). Appellant does not develop an argument that the
prior convictions were admissible as crimen falsi, or that the convictions for
VUFA and PIC involved offenses involving dishonesty or false statement. (See
Appellant’s Brief, at 20-23); see also Pa.R.E. 404(b). The trial court did cite
and discuss Rule 404(b). (See Trial Ct. Op., at 8). As correctly noted by the
Commonwealth, Appellant’s argument on appeal challenging the exclusion of
Warren’s VUFA conviction differs from the issue raised in his Statement of
Errors, which challenged the exclusion of his PIC conviction.            (See
Commonwealth’s Brief, at 10; Appellant’s Statement of Errors, at unnumbered
page 2, ¶ 6(a)). The trial court permitted reference to Warren’s “prior



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       In his second issue, Appellant challenges the denial of his motion to

suppress the statements he made to Officer McLemore. He claims he should

have received Miranda warnings.3               The trial court found this claim to be

without merit. We agree.

       Appellant argues that the trial court should have granted his motion to

suppress because “numerous police officers surrounded” him and questioned

him in the back of an ambulance without providing him Miranda warnings.

(Appellant’s Brief, at 24 (unnecessary capitalization omitted); see also id. at

24-28). Appellant’s claim does not merit relief.

       In pertinent part, Miranda provides that:

       [T]he prosecution may not use statements, whether exculpatory
       or inculpatory, stemming from custodial interrogation of the
       defendant unless it demonstrates the use of procedural
       safeguards effective to secure the privilege against self-
       incrimination.    By custodial interrogation, we mean
       questioning initiated by law enforcement officers after a
       person has been taken into custody or otherwise deprived
       of his freedom of action in any significant way.

Miranda, supra at 444 (emphasis added) (footnote omitted).
____________________________________________


gunpoint robbery.” (Trial Ct. Op., at 9). Robbery is a crimen falsi offense.
(See Commonwealth v. May, 898 A.2d 559, 569 (Pa. 2006), cert. denied,
549 U.S. 1022 (2006)).        Convictions for PIC and VUFA, not involving
dishonesty or false statement, generally are not. See Pa.R.E. 609; see also
Allen v. Kaplan, 653 A.2d 1249, 1252-53 (Pa. Super. 1995). However, it
bears noting that here all three of the prior convictions at issue (robbery, PIC,
VUFA) involved the same single incident, even though it appears that the
conviction for VUFA was withdrawn at sentencing. We further note that the
jury in this appeal convicted Appellant despite the evidence it heard of
Warren’s prior conviction for gunpoint robbery.

3   See Miranda v. Arizona, 384 U.S. 436 (1966).

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      Here, there was no custodial interrogation. Appellant had been shot in

the stomach, was receiving emergency medical treatment, and, by his own

account, “barely clung to life.” (Appellant’s Brief, at 28).

      As the trial court aptly observes, “[T]he only restraints upon Appellant’s

freedom were those caused by his medical condition, as opposed to any action

on the part of the police.” (Trial Ct. Op., at 11).

      Pertinent authority supports the trial court’s conclusion.           See

Commonwealth v. Johnson, 727 A.2d 1089, 1099 (Pa. 1999), cert. denied,

528 U.S. 1163 (2000) (in totality of circumstances, no basis to suppress

voluntary statement from appellant given while in ambulance en route to

hospital for gunshot wound to stomach); see also Commonwealth v. Fento,

526 A.2d 784, 787 (Pa. Super. 1987), appeal denied, 538 A.2d 875 (Pa. 1988)

(finding no custodial interrogation where trooper interviewed driver in hospital

as part of routine accident investigation).

      Appellant’s claim that the police suspected him does not establish

custodial interrogation, or require Miranda warnings. “The fact that a police

investigation has focused on a particular individual does not automatically

trigger ‘custody,’ thus requiring Miranda warnings.”       Commonwealth v.

Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (emphasis in original) (citing

Fento, supra at 787).         The trial court properly denied suppression.

Appellant’s second issue does not merit relief.




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      Appellant’s third claim assigns error to the trial court’s denial of his

motion for acquittal, asserting that the evidence against him was “so

unreliable and inconsistent to render the jury’s verdict the product of mere

speculation and conjecture[.]” (Appellant’s Brief, at 4). Appellant concedes

that questions of witness credibility are left to the factfinder, but maintains

nevertheless that Warren’s testimony was unreliable.      (See id. at 28-31).

Appellant’s argument merits no relief.

      Preliminarily, Appellant’s argument confuses and misapplies our

standard of review for the sufficiency of the evidence with the standard of

review for a challenge to the weight of the evidence. As aptly noted by the

Commonwealth, Appellant’s argument is really a weight claim framed as a

sufficiency claim. (See Commonwealth’s Brief, at 32-34).

             A true “weight of the evidence” claim contends the verdict
      is a product of speculation or conjecture. Such a claim requires
      a new trial only when the verdict is so contrary to the evidence as
      to shock one’s sense of justice. A decision regarding the weight
      of the evidence is within the sound discretion of the trial judge
      whose decision will not be reversed on appeal absent an abuse of
      that discretion.

Commonwealth v. Beckwith, 674 A.2d 276, 281 (Pa. Super. 1996)

(emphasis added) (citations omitted).

      A challenge to the weight of the evidence must generally be preserved

by a motion for a new trial. See Pa.R.Crim.P. 607. The Rule provides:

      Rule 607. Challenges to the Weight of the Evidence




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                  (A) A claim that the verdict was against the
            weight of the evidence shall be raised with the trial
            judge in a motion for a new trial:

                 (1) orally, on the record, at any time before
            sentencing;

                 (2) by written motion at any time before
            sentencing; or

                   (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).

      “As noted in the comment to Rule 607, the purpose of this rule is to

make it clear that a challenge to the weight of the evidence must be raised

with the trial judge or it will be waived.” Commonwealth v. Gillard, 850

A.2d 1273, 1277 (Pa. Super. 2004), appeal denied, 581 Pa. 672, 863 A.2d

1143 (2004).

      A claim challenging the weight of the evidence generally cannot be

raised for the first time in a Rule 1925(b) statement.                     See

Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003). An

appellant’s failure to avail himself of any of the prescribed methods for

presenting a weight of the evidence issue to the trial court constitutes waiver

of that claim, even if the trial court responds to the claim in its Rule 1925(a)

opinion. See id.

      Here, on the record before us, Appellant failed to challenge the weight

of the evidence before the trial court in a motion for a new trial.        See

Pa.R.Crim.P. 607. Rather, he raised his weight claim for the first time in his


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Rule 1925(b) statement. See Burkett, supra at 1037. As such, his weight

issue on appeal is waived. See Gillard, supra at 1277.4

       Furthermore, we note that the trial court did review the weight of the

evidence and concluded that the verdict of the jury did not shock one’s sense

of justice. (See Trial Ct. Op., at 20-23). On independent review, we discern

no basis on which to disturb the conclusion of the trial court.      Appellant’s

weight claim is waived and would not merit relief.

       Appellant’s implicit challenge to sufficiency of the evidence, requesting

a judgment of acquittal, would fare no better. When examining a challenge

to the sufficiency of evidence, 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
          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
____________________________________________


4 Moreover, Appellant’s Rule 1925(b) statement of errors contains only a
boilerplate challenge to the weight of the evidence. (See Statement of Errors,
9/23/16, at ¶ 6(e)(2)). It would be waived for that reason as well. See
Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002).

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          [trier] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011), appeal

denied, 32 A.3d 1275 (Pa. 2011) (citation omitted).

      In this appeal, Appellant fails to develop an independent argument for

insufficiency, relying instead on his challenge to Warren’s credibility. He does

not particularize his claim for any specific conviction, and he disregards the

proper standard of review.       Accordingly, Appellant’s sufficiency claim is

waived.

      Moreover, the trial court reviewed Appellant’s challenge to the

sufficiency of the evidence and found no basis to disturb the verdict of the

jury. (See Trial Ct. Op., at 11-15).

      On independent review, viewing the evidence in the light most favorable

to the Commonwealth as verdict winner, together with all reasonable

inferences, we would conclude that the evidence was sufficient for all

convictions. Appellant’s third challenge is waived and would merit no relief.

      On his fourth and final claim, Appellant claims he is entitled to a new

trial on the basis of after-discovered evidence. We disagree.

      After-discovered evidence is the basis for a new trial when it: 1)
      has been discovered after the trial and could not have been
      obtained at or prior to the conclusion of trial by the exercise of
      reasonable diligence; 2) is not merely corroborative or
      cumulative; 3) will not be used solely for impeaching the
      credibility of a witness; and 4) is of such nature and character that
      a new verdict will likely result if a new trial is granted. Further,
      the proposed new evidence must be “producible and admissible.”

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Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011), cert. denied,

566 U.S. 986 (2012) (citations omitted).

         Here, Appellant’s “new evidence” is the more lenient sentence imposed

on Warren. (See Appellant’s Brief, at 32-35). In his argument, Appellant

denies that the “after-discovered evidence,” of Warren’s lighter sentence

would be used solely to impeach his credibility. He maintains the evidence

would also show “bias” and “motive to lie.” (Id. at 34). Appellant’s argument

fails.

               Impeachment evidence is evidence which is presented as a
         means of attacking the witness’ credibility. Leonard Packel & Anne
         Poulin, Pennsylvania Evidence § 608 (1987). There are several
         principal ways to attack a witness’ credibility: evidence offered to
         attack the character of a witness for truthfulness, evidence offered
         to attack the witness’ credibility by proving bias, interest, or
         corruption, evidence offered to prove defects in the witness’
         perception or recollection, and evidence offered to contradict the
         witness’ testimony.

Commonwealth v. Palo, 24 A.3d 1050, 1055–56 (Pa. Super. 2011), appeal

denied, 34 A.3d 828 (Pa. 2011) (case citation and internal quotation marks

omitted).

         Showing bias and motive to lie are simply different methods of attacking

the credibility of a witness, that is, other ways to impeach. Here, Appellant

fails to establish that the purported after-discovered evidence would be used

for any purpose other than to impeach.           Furthermore, it would merely be

corroborative of trial testimony which extensively examined Warren’s motive

to present testimony favorable to the Commonwealth. Finally, contrary to

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Appellant’s claim, there is no objective basis to conclude that further cross-

examination of Warren’s motive to testify, already heard and considered by

the jury, would “likely result” in a new verdict.   (Appellant’s Brief, at 34).

Appellant’s fourth issue does not merit relief.

      Although our reasoning differs somewhat from that of the trial court, we

may affirm if the order below is correct for any reason. See Commonwealth

v. Allsup, 392 A.2d 1309, 1311 (Pa. 1978).

      Judgment of sentence affirmed.

      Judge Ott joins the Memorandum.

      Judge Lazarus files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/18




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