J-S23025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRANDON SAWYER,

                            Appellant                 No. 1403 EDA 2014


             Appeal from the Judgment of Sentence April 10, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012941-2011


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JUNE 01, 2015

       Appellant, Brandon Sawyer, appeals from the judgment of sentence

entered following his convictions of first degree murder, carrying a firearm

on public streets or property in Philadelphia, and possessing an instrument

of crime. We affirm.

       The trial court summarized the factual history of this case, as follows:

             At approximately 1 o’clock in the morning of November 4,
       2008, Philadelphia Police Officer Sterling Staton and his partner,
       Officer Vance, were called to 54th Street and Florence Avenue in
       West Philadelphia. When they arrived at the scene, Officer
       Staton observed the body of the victim in this case, Charmaine
       McGuilken, lying beneath a pay phone, unresponsive and
       bleeding from her face. She had the telephone handset in her
       hand, and the cord connecting it to the phone had been severed.
       When the medics arrived a few minutes later, they pronounced
       her deceased at the scene. N.T. October 22, 2013, pp. 56-69.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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             Dr. Sam Gulino, Chief Medical Examiner in the Office of the
       Medical Examiner of Philadelphia, performed an autopsy on the
       decedent, Charmaine McGuilken. The decedent sustained two
       perforating gunshot wounds, to the right side of her face and to
       her chest. N.T. October 22, 2013, pp. 76-100. Officer John
       Cannon of the Firearms Identification Unit gave expert testimony
       that the ballistics evidence recovered at the scene and from the
       Medical Examiner all came from the same firearm. Id. at 153-
       164.

             Corey Williams1 lived in Southwest Philadelphia in 2008,
       where he knew two men named Aasim Stibbins and Aaron
       McCallum. Aaron McCallum, also known as Beano, is the
       defendant’s cousin. On November 4th, 2008, at approximately 1
       in the morning, Williams was selling crack cocaine on the 5400
       block of Belmar Terrace, which is a little less than two full blocks
       east of Florence Avenue. He heard shots, but he stayed on
       Belmar Terrace because they sounded sufficiently far away that
       he did not fear for himself. Shortly thereafter, he heard police
       cars rushing to the scene of the shooting and saw [Appellant],
       Stibbins, and McCallum emerge from an alleyway, looking
       shocked and fearful. The three men went to Stibbins’ house.
       Earlier that day, Williams had seen McCallum with a gun. He
       knew McCallum to own two guns, a 40-caliber and a 9-
       millimeter. Id. at 170-181.

             At some point after the shooting, Williams was at Stibbins’
       house speaking with [Appellant] and McCallum. [Appellant] told
       him that he shot Charmaine McGuilken in the head, and he and
       McCallum laughed off the incident. [Appellant] said he came out
       of the alleyway, he shot Charmaine in the head, and when he
       shot her the receiver on the phone came off. Stibbins seemed
       more troubled by what had happened. Id. at 182-187.

             On November 6, 2008, Detective Keith Scott and his
       partner were working near 55th Street and Florence Avenue. He
       saw [Appellant] and attempted to stop him, and [Appellant] ran
       from him for approximately 100 feet. Scott overcame him and

____________________________________________


1
    Mr. Williams’s first name has been spelled either “Corey” or “Cory”
throughout the proceedings. For consistency, Mr. Williams’s first name will
be spelled “Corey.”



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     took him into custody on an unrelated matter. N.T. October 23,
     2013, pp. 36-40.

           On February 9, 2011, Williams was arrested for selling
     narcotics. In order to avoid harsh penalties for his narcotics
     involvement, Williams agreed to give a statement about the
     murder of Charmaine McGuilken. He told homicide detectives
     what he remembered from the night of the shooting, and from
     [Appellant’s] confession. N.T. October 22, 2013, pp. 188-197.

            Aasim Stibbins knew the decedent, who was his mother’s
     friend. On February 16th, 2011, he gave a statement to police
     in which he implicated [Appellant]. In his statement, he says
     that he was leaving a woman’s house sometime after midnight
     and saw [Appellant] and Aaron McCallum coming out of a vacant
     lot, and then saw [Appellant] raise a gun and shoot the decedent
     while she was on the phone. N.T. October 23, 2013, pp. 47-79.

           On November 8, 2011, Stibbins and his lawyer signed a
     Memorandum of Agreement with the District Attorney
     memorializing their agreement that Stibbins testify against
     [Appellant] in this case, and that the District Attorney would
     agree to a sentence of time served on Stibbins’ open gun case.
     Stibbins testified at [Appellant’s] preliminary hearing that he saw
     [Appellant] shoot the decedent. Id. at 104-145.

           On the witness stand, he denied being present for her
     shooting or involved in any way. Rather, he claimed that the
     detectives who took his statement used Corey Williams’
     statement in order to fabricate a statement for him as well, and
     that he was not present when the shooting occurred but he was
     threatened with being charged in this case if he did not put
     himself at the scene as a witness. Id. at 47-79.

            On March 8, 2011, Tyree Thomas gave a statement to
     police in which he reported that in February of 2009 he was at
     Aasim Stibbins’ house when Stibbins told him about the
     shooting. Stibbins said that “the boy, Brandon, shot the fiend in
     the head while she was on the phone” and that Stibbins had
     witnessed the shooting, having walked up to the intersection just
     as it was taking place. Id. at 211-224.

          Tevin Clark, a friend of Aasim Stibbins, gave a statement
     on February 17, 2011 that Stibbins had told him that [Appellant]
     shot the decedent in the eye without provocation, and that


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       Stibbins witnessed the shooting but was not involved. At trial,
       he claimed that the statement was inaccurate. Id. at 211-232.

             At trial, the Commonwealth played recordings of two
       phone calls that [Appellant] made while he was in custody
       awaiting trial. In the first one, he discusses the fact that “Corey”
       (presumably Corey Williams) gave a statement in this case and
       “told” in some other cases as well. In the second call, he
       declares that he has statements made by Williams and “Diddy”
       and “two other young bouls” and “I’m’a send ‘em jawns out
       tonight, you heard me?”         N.T. October 28, 2013, pp. 59;
       Commonwealth Exhibit 39 (transcripts).

Trial Court Opinion, 9/9/14, at 2–5.

       On October 29, 2013, a jury found Appellant guilty of the charged

offenses. On April 10, 2014, the trial court imposed a sentence of forty-two

and one-half years to life imprisonment on the murder conviction, 2 and

concurrent sentences of one to two years on the possession of an instrument

of crime and carrying a firearm in Philadelphia convictions, respectively. The

trial court denied Appellant’s post-sentence motion on April 17, 2014.

Appellant timely appealed.

       On May 27, 2014, while still represented by counsel, Appellant filed a

pro se Pa.R.A.P 1925(b) statement of errors complained of on appeal. After

counsel subsequently filed a separate Rule 1925(b) statement, Appellant

filed a motion to proceed pro se. Before the trial court ruled on his motion,

on June 30, 2014, Appellant filed an additional Rule 1925(b) statement.



____________________________________________


2
    Appellant was a juvenile when he committed the murder.



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      On August 25, 2014, following a hearing pursuant to Commonwealth

v. Grazier, 713 A.2d 81 (Pa. 1998), the trial court granted Appellant’s

request to represent himself on appeal. In its Pa.R.A.P 1925(a) opinion, the

trial court referenced both Appellant’s original and supplemental Rule

1925(b) statements and stated that “both are accepted as valid filings . . . .”

Trial Court Opinion, 9/9/14, at 2.

      Appellant raises the following issues on appeal:

            1. Is the Appellant entitled to a new trial whereas the trial
      judge based her 1925(a) opinion, in part, on her review of a
      hybrid pro se 1925(b) Statement of Matters Complained Of that
      was rejected by counsel on record and was not part of the
      court’s record?

            2. Is the Appellant entitled to a new trial whereas the
      prosecutor failed to abandon[] the prosecution for purpose of
      investigation in light of the fact that Commonwealth witness,
      Aasim Stibbins, testified under oath that [H]omicide [D]etective
      Santamala and [D]etective Pitts, threatened to try him for the
      shooting death of the decedent and other unrelated offenses,
      attempted murder, if he did not be a witness for the
      Commonwealth?

            3. Is the Appellant entitled to a new trial whereas, Corey
      Williams, a Commonwealth witness, gave testimony which was
      contradicted by his statement to homicide detectives and by the
      incontrovertible physical facts rule and in light of the fact that he
      had reasons to lie with criminal charges pending?

             4. Is the Appellant entitled to a new trial whereas the
      Commonwealth used hearsay testimony to secure a conviction in
      light of the responsibilities of a Quasi-Judicial Officer of the
      Court?

Appellant’s Brief at 6 (verbatim).

      Appellant’s preliminary and rather unusual argument is that he is

entitled to a new trial because the trial court addressed the claims raised in


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both of his pro se Rule 1925(b) statements. Appellant asserts that the first

pro se statement was a legal nullity because it was filed while he was still

represented by counsel and the court should have disregarded it because

Appellant was not entitled to such hybrid representation.

       We reject the notion that Appellant is entitled to a new trial because

the trial court exercised caution and diligence in addressing Appellant’s

claims of error. Additionally, if we accepted Appellant’s position that the trial

court improperly addressed the issues raised in his May 27, 2014 Rule

1925(b) statement, we would be compelled to decide that it was error for

the court to likewise consider his subsequent Rule 1925(b) statement filed

on June 30, 2014, because he was still represented by counsel on that date.

Rather than concluding that Appellant has completely forfeited his appellate
                                                                                   3
rights, we will address the substantive issues raised in his appellate brief.

       Appellant next argues that the Commonwealth committed misconduct

when it continued to prosecute him after Aasim Stibbins testified at trial that

homicide detectives used threats to force him into giving a statement

implicating Appellant in the crime. On or about February 16, 2011, Stibbins

was     interrogated     by    Philadelphia      Homicide   Detectives   Pitts 4   and

____________________________________________


3
  Even if the trial court erred in addressing the issues raised in Appellant’s
May 27, 2014 Rule 1925(b) statement, there is no authority that would
provide a new trial as a remedy.
4
    Detective Pitts’s first name is not included in the record.



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Gregory Santamala about the murder of Charmaine McGuilkin. During this

interview, Stibbins related that he saw Appellant fire the shots that killed

Ms. McGuilkin.   Commonwealth Exhibit 25A.         Stibbins also testified at

Appellant’s preliminary hearing that he witnessed Appellant shoot the victim.

N.T. (Preliminary Hearing), 11/15/11, at 6.       At trial, however, Stibbins

recanted his earlier statements and testified that he did know who shot

Ms. McGuilken.   N.T. (Trial), 10/23/13, at 51.    He acknowledged that he

previously named Appellant as the shooter in his statement, but he claimed

that the detectives conducting the interview threatened to charge him with

both the instant murder and an unrelated attempted homicide if he did not

testify to an eyewitness account incriminating Appellant. Id. at 52. Stibbins

claimed that the detectives, rather than asking him questions, directed him

to answer the questions as if he were present at the scene. Id. at 76. At

trial, Detective Santamala denied that Stibbins was fed any answers during

the interrogation. Id. at 257.

     Appellant argues on appeal that the Pennsylvania Rules of Professional

Conduct mandate that a prosecutor abandon a prosecution if justice so

requires. He urges that prosecutors must seek justice, not only convictions,

and that this search for justice includes an obligation to ensure that the

accused receives a fair trial. Appellant asserts that once Stibbins recanted

his identification of Appellant as the perpetrator of the subject crimes, the

Commonwealth was required to discontinue its prosecution and investigate


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Stibbins’s claim that the detectives threatened him with prosecution if he

refused to testify as a witness for the Commonwealth.

      The trial court addressed Appellant’s claim of prosecutorial misconduct,

as follows:

      [Appellant] argues that the Commonwealth committed
      misconduct when it continued to prosecute him after Aasim
      Stibbins repudiated his statement incriminating [Appellant]. He
      cites no authority in support of the notion that it is misconduct to
      pursue a conviction when a witness, even a key witness, claims
      that his inculpatory statement was not voluntary or accurate. In
      fact, recantations are a sadly common feature of criminal
      actions. See, e.g., Commonwealth v. Brown, 52 A.3d 1139 (Pa.
      2012) (conviction based solely on statements subsequently
      repudiated in court is permissible). Under Brown, it is clear that
      the [Appellant’s] rights were not violated by a prosecution that
      included the admission of statements that were subsequently
      repudiated, and this claim is meritless.

Trial Court Opinion, 9/9/14, at 11–12.

      Although the trial court addressed the allegation of prosecutorial

misconduct and we agree generally with its assessment of the legal issue,

Appellant has waived this argument.      A claim of prosecutorial misconduct

“either sounds in a specific constitutional provision that the prosecutor

allegedly violated or . . . implicates Fourteenth Amendment due process.”

Commonwealth v. Tedford, 960 A.2d 1, 28 (Pa. 2008).               Because the

benchmark of due process is the fairness of the trial rather than the

accountability of the prosecutor, it is the trial court’s ruling on the alleged

prosecutorial transgression that is reviewed on appeal, not the underlying

misconduct. Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014).


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Consequently, where, as here, Appellant did not raise a contemporaneous

objection to the prosecutor’s failure to discontinue the prosecution, there is

no trial court ruling to scrutinize, and the issue is waived.   See Pa.R.A.P.

302(a) (providing that issues not raised in the lower court are waived and

cannot be raised for first time on appeal); Arrington, 86 A.3d at 854 (claim

of prosecutorial misconduct waived pursuant to Pa.R.A.P. 302(a) because

counsel did not object to prosecutor’s statement).

      Appellant also argues that he is entitled to a new trial due to the

unreliability of the testimony of Commonwealth witness Corey Williams. On

February 9, 2011, Williams was interviewed by Detective Levi Morton. In his

statement, Williams related that Aasim Stibbins told him on the day of the

shooting that Appellant shot the victim. Commonwealth Exhibit 33. Then,

“[a]bout 2–3 months after[,] [Appellant] told [Williams] that ‘I rocked

Charmaine, I shot her in the head.’” Id.     On cross-examination, Williams

clarified that the “two to three months later” language in the police

statement was in error and what he actually said, or meant to say, was that

Appellant confessed his involvement “two to three months before” Williams

gave his February 9, 2011 statement to the police. N.T. (Trial), 10/22/13,

at 229.

      Appellant contends on appeal that Williams’s trial testimony was

untrustworthy because it differed from the statement he provided earlier to

Detective Morton. Appellant also avers that because he was incarcerated in


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the two-to-three-month period after the shooting, his alleged conversation

with Williams was physically impossible.           Finally, Appellant asserts that

Williams was motivated to lie because he had criminal charges pending

against him.

       The trial court considered Appellant’s arguments in this regard as a

challenge to the weight of the evidence,5 and concluded as follows:

             In the context of the wealth of evidence establishing the
       [Appellant’s] guilt, any uncertainty as to dates when a
       conversation is recalled after the fact is hardly shocking to the
       conscience of this Court. Further, [Appellant] has submitted no
       evidence to establish that he would have been incarcerated
       during the time period that the statement suggests that the
       confession took place. Because this argument is extremely weak
       and unsupported, it should be rejected.

Trial Court Opinion, 9/9/14, at 11.

       As to the complaint that Williams’s trial testimony concerning the

timing of his conversation with Appellant was inconsistent with his statement

to Detective Morton, we agree with the trial court that contradictions in a

witness’s testimony concern the witness’s credibility and are for the fact-

finder to resolve.      Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa.

2003). As the Pennsylvania Supreme Court has explained:

              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. A trial judge must
       do more than reassess the credibility of the witnesses and allege
____________________________________________


5
   Appellant raised a challenge to the weight of the evidence in his post-
sentence motion.



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      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. 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
      with all the facts is to deny justice.”

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (quoting

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (citations

omitted)).

      In the instant matter, when Williams was cross-examined about the

time-frame of Appellant’s confession, he clarified that the conversation

occurred two or three months prior to February 9, 2011, and that the

information to the contrary in his earlier statement was either his mistake or

an error in the detective’s recording.        Thus, the perceived conflict in

Williams’s recollection was less an inconsistency than a misunderstanding.

Accordingly, the trial court did not abuse its discretion in concluding that the

verdict was not contrary to the evidence.      See Lofton, 57 A.3d at 1273

(appellate review is limited to whether trial court palpably abused its

discretion in ruling on weight of evidence claim).

      Appellant also assails Williams’s credibility by avowing that Williams

was motivated to lie because he had criminal charges pending against him

and did not want to return to jail. On direct examination, Williams admitted

as much and offered that he provided information to the police about

Ms. McGuilken’s murder, hoping for some leniency in his own situation. N.T.



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(Trial), 10/22/13, at 194.   On cross-examination, Williams explained that,

although he was eager to receive some help regarding his personal legal

woes, he was not promised anything in return for his testimony against

Appellant. Id. at 225.

      This particular challenge to Williams’s believability also implicates the

weight to be accorded to the evidence. Here, the jury was clearly aware of

Williams’s legal situation, and it was within its province to assess whether

Williams’s credibility was compromised thereby.          Commonwealth v.

James, 46 A.3d 776 (Pa. Super. 2012) (role of the fact-finder is to

determine weight to be accorded witness’s testimony and to believe all, part,

or none of evidence).

      Appellant also argues that Williams’s testimony was discredited by the

“incontrovertible physical facts” rule. The Pennsylvania Supreme Court has

held that “‘testimony in conflict with the incontrovertible physical facts and

contrary to human experience must be rejected[.]’”        Commonwealth v.

Charleston, 94 A.3d 1012, 1041 (Pa. Super. 2014) (quoting Widmer, 744

A.2d at 752). Appellant maintains that he was incarcerated when Williams

claimed that Appellant told him that Appellant killed Ms. McGuilken. He thus

submits that the undisputed facts reveal that the conversation never

occurred and any evidence of it should have been disallowed.

      Appellant is not entitled to enforcement of the incontrovertible physical

facts rule in this matter.   There was no evidence presented at trial that


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Appellant was incarcerated when he supposedly confessed to Williams.

Therefore, there were no physical facts controverting Williams’s testimony

regarding the timing of the conversation.     Appellant’s argument is simply

unavailing.

      Appellant’s final argument is that a new trial is warranted because

witnesses Tyree Thomas and Tevin Clark provided hearsay testimony at trial

that should have been excluded.      We agree with the trial court that this

assertion of error is waived because Appellant did not object to this

testimony at trial.   Trial Court Opinion, 9/9/14, at 6.   See Pa.R.E. 103(a)

(party may claim error in admission of evidence only when party makes a

timely objection); Commonwealth v. Heckathorn, 241 A.2d 97, 102 (Pa.

1968) (failure to object to purported hearsay testimony resulted in waiver).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015




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