J-S20037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SHYKEIR SMITH                              :
                                               :
                      Appellant                :   No. 3274 EDA 2015

             Appeal from the Judgment of Sentence October 1, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012874-2014,
                             CP-51-CR-0012875-2014


BEFORE:      BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                     FILED MAY 02, 2017

        Shykeir Smith appeals from the judgment of sentence imposed on

October 1, 2015, in the Court of Common Pleas of Philadelphia County. At

Docket No. 12874-2014 (victim Yolanda Smith), a jury found Smith guilty of

criminal attempt – murder, firearms not to be carried without a license,

carrying firearms in public on the streets of Philadelphia, and possessing an

instrument of crime.1 At Docket No. 12875-2014 (victim Felix House), the

jury found Smith guilty of criminal attempt – murder, and robbery.2           The

trial court sentenced Smith to an aggregate term of 38½ to 82 years’



____________________________________________


1
    18 Pa.C.S. §§ 901, 6106, 6108, and 907, respectively.
2
    18 Pa.C.S. §§ 901 and 3701(a)(1)(ii), respectively.
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imprisonment.      Smith challenges the sufficiency of the evidence, and the

denial of his motion for mistrial. Based on the following, we affirm.

       The trial court has fully summarized the factual and procedural history

of this case, and therefore we do not restate them here.       See Trial Court

Opinion, 10/27/2016, at 1–6. Briefly, the victims, Felix House and Yolanda

Smith, were shot and seriously injured by Smith. Smith and a cohort came

up to the victims, and Smith demanded repayment of a $30.00 drug debt

from House, fought with Yolanda Smith, and then began shooting.

       Smith frames two questions on appeal, as follows:

       A. Was the evidence insufficient to sustain the guilty verdicts
          where none of the Appellant’s DNA was recovered from any of
          the evidence to include the firearm used in the shooting, the
          testimony of Felix House and Yolanda Smith were
          inconsistent, contradictory and unreliable as both drug addicts
          were high at the time of the shooting and Ms. Smith admitted
          to lying, and the evidence was that either a man named
          “Blue” or “Simere Ruffin” committed the shooting?

       B. Did the court commit error in not granting a mistrial after
          Juror #5 was seen [mouthing] the word “guilty” prior to
          deliberating?

Smith’s Brief at 6.3

       Our review of a sufficiency claim is well settled:

       Our standard when reviewing the sufficiency of the evidence is
       whether the evidence at trial, and all reasonable inferences
       derived therefrom, when viewed in the light most favorable to
       the Commonwealth as verdict-winner, are sufficient to establish
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3
  Smith timely complied with the order of the trial court to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).



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       all elements of the offense beyond a reasonable doubt. We may
       not weigh the evidence or substitute our judgment for that of the
       fact-finder. Additionally, the evidence at trial need not preclude
       every possibility of innocence, and the fact-finder is free to
       resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of the
       evidence, the fact-finder is free to believe all, part or none of the
       evidence. For purposes of our review under these principles, we
       must review the entire record and consider all of the
       evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(citation omitted).

       Initially, we point out that Smith does not contest the sufficiency of the

evidence to support any of the applicable elements of any of the offenses,

but rather his argument is that the evidence was insufficient to prove he was

the   perpetrator.         Our    review       confirms   the   trial   court’s   opinion

comprehensively addresses and properly disposes of Smith’s sufficiency

challenge. See Trial Court Opinion, 10/27/2016, at 7-17 (finding evidence

sufficient to support Smith’s convictions where, inter alia, both victims

testified they knew Smith as “S” from the neighborhood; both victims gave

detailed, consistent and corroborating accounts of relevant events to police

officers and in court, and both victims positively identified Smith without any

hesitation).4
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4
  Although the trial court did not specifically address Smith’s robbery
conviction in its sufficiency discussion, that conviction is supported by the
same identification evidence that supports the other convictions.




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       Moreover, we agree with the Commonwealth’s position that the

sufficiency arguments presented by Smith only implicate the weight of the

evidence, not its sufficiency.

       To the extent that Smith relies upon the lack of DNA evidence, we note

that “an absence of evidence is not evidence of absence.” Commonwealth

v. Heilman, 867 A.2d 542, 547 (Pa. Super. 2005) (affirming denial of post-

conviction DNA testing that would not have proven the appellant’s innocence

and reiterating that “a murder suspect may be convicted on wholly

circumstantial evidence”). The fact that there was no DNA evidence linking

Smith to the crimes did not require the jury to find Smith innocent.

       Furthermore,    Smith’s     attack   on   the   witnesses’     testimony    as

“inconsistent, contradictory and unreliable” is a credibility challenge that

goes    to   the   weight    of   the   evidence,   not   its    sufficiency.     See

Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013) (stating

defendant’s claim he was wrongly identified as perpetrator of crimes based

on “unbelievable identification testimony” went to witness’s credibility and

challenged weight, not sufficiency, of evidence).               Therefore, we reject

Smith’s sufficiency claim.

       Finally, Smith contends the trial court erred in not granting a mistrial

after Smith’s parents reported to trial counsel that they saw Juror #5

mouthing the word “guilty” to a court officer prior to deliberating.            Smith




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argues the trial court “failed to question [Juror #5] or even excuse this Juror

and replac[e] the Juror with an alternate.” Smith’s Brief at 13.5

        The refusal of a new trial on the grounds of alleged misconduct
        of a juror is largely within the discretion of the trial judge. When
        the facts surrounding the possible misconduct are in dispute, the
        trial judge should examine the various witnesses on the
        question, and his findings of fact will be sustained unless there is
        an abuse of discretion.

Commonwealth v. Russell, 665 A.2d 1239, 1243 (Pa. Super. 1995), citing

Commonwealth v. Posavek, 420 A.2d 532, 537 (Pa. Super. 1980)

(citations omitted).

        It bears note that, at the time the issue regarding Juror #5 arose,

Smith’s counsel stated to the trial judge: “I am not going to ask that Juror

No. 5 be brought out. I’m going to leave it to Your Honor’s determination. I

don’t think -- if I bring out Juror No. 5, then that would taint the case as far

as my client is concerned.” N.T., 7/17/2015, at 122.

        The trial court and trial counsel questioned the court officer, who

testified Juror #5 said, “I’m hungry,”6 and Smith’s parents,7 who both

____________________________________________


5
  The trial court’s opinion inadvertently states that the court questioned
Juror #5. See Trial Court Opinion, 10/27/2016, at 18. The record reflects
that Juror #5 was not questioned by the trial judge.
6
  Trial counsel asked the court officer, “Did you ever notice Juror #5 respond
to you in any way?” and the court officer responded, “She said, I’m hungry.
She said, “I’m hungry. And I said, Lunch is here.” N.T., 7/17/2016, at 118.
7
    See N.T., 7/17/2016, at 119–126.




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testified they had seen Juror #5 mouthing the word “guilty” to the court

officer. The trial court determined, “I do not find either mother or father to

be credible independently.”     Id. at 127. The trial court explained to trial

counsel,

      ... they didn’t hear what the person said; they’re interpreting
      mouth reading. So I don’t think that there’s even enough to go
      on to justify interrupting deliberations. As you correctly stated,
      to interrupt deliberations and pull a juror out on their perception
      of someone mouthing words that could very easily be, I’m
      hungry, could damage your client and then create the very
      necessity that's not necessary here. So I’ll deny your motion, but
      thank you.

Id. at 129.

      The trial court, in its opinion, further explained:

      The transcribed record reflects after reasonable inquiry that the
      trial court determined and … that the juror simply mouthed the
      words “I’m hungry,” while awaiting arrival of the lunch order to a
      court officer during the brief time comfort break in the
      courtroom, as the judge and the attorneys discussed the final
      jury instructions at side bar. The parents of [Smith] complained
      after the sidebar conference that they had observed Juror #5
      mouth the word “guilty” from their vantage point well to the
      back of the courtroom. Their concern was presented to defense
      counsel as the jurors were heading to deliberations for lunch.
      Not one member of the court staff, attorneys, or the judge
      witnessed the juror mouth this word. Specifically, the Court
      Officer, who sits only feet from the jury box, stated that she did
      not witness any such thing being stated by the juror. Extensive
      questioning of the stepfather and mother of [Smith] established
      that both were sitting some twenty feet on the opposite side of
      the room when they allegedly saw the juror mouth movements
      directed to the seated court officer. Clearly they misinterpreted
      the juror’s innocent comment that had nothing to do with this
      case.

Trial Court Opinion, 10/27/2016, at 18–19.


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      Here, Smith has failed to show that the trial court’s factual finding that

Smith’s parents misinterpreted Juror #5’s remark was an abuse of

discretion.   Smith’s parents were clearly interested in the outcome of the

case, were sitting in the back of the courtroom, and Smith’s mother’s

credibility   was   particularly   undermined by   her   “manipulative   efforts”

reflected in Smith’s taped prison phone calls. N.T., 7/17/2016, at 128. The

court officer, on the other hand, was a neutral party, and had a better

vantage point than Smith’s parents. Therefore, we find Smith’s claim that

the trial court erred in denying his motion for mistrial warrants no relief.

      Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




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