J-S19025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

YASHEAM WASHINGTON

                          Appellant                  No. 1062 MDA 2013


            Appeal from the Judgment of Sentence May 16, 2013
    In the Court of Common Pleas of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0001515-2012


BEFORE: PANELLA, OLSON and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 26, 2014

        Appellant, Yasheam Washington, appeals from the judgment of

sentence entered on May 16, 2013, following his jury trial conviction for

possessing a weapon or implement for escape, 18 Pa.C.S.A. § 5122(a)(2).

We affirm.

        We summarize the facts and procedural history of this case as follows.

Appellant is an inmate at the State Correctional Institute at Mahanoy. On

May 27, 2012, corrections officers were searching individual prison cells

when they witnessed Appellant flush an unknown object down the toilet.

Appellant was the only occupant in the cell at the time.         The officers

observed an object, which looked like white cloth, in the bottom of the toilet

bowl.    While officers went to obtain a tool to retrieve the item from the

toilet, Appellant reentered his cell and flushed the toilet again. Corrections
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officers restrained Appellant.   They then removed the toilet from the floor

and recovered from the sewer line a metal rod approximately six inches

long, with cloth wrapped around one end. The unwrapped end of the metal

rod was sharpened to a point.     Appellant admitted to the officers that the

device belonged to him.

      On June 13, 2012, the Commonwealth charged Appellant with

possessing a weapon or implement for escape. A jury convicted Appellant of

the crime on April 29, 2013.     On May 16, 2013, the trial court sentenced

Appellant to 21 to 42 months of imprisonment, consecutive to the six to 14

year sentence that he was serving at the time of the incident.

      On May 29, 2013, Appellant filed a pro se motion to modify or reduce

his sentence, despite being represented by counsel.         The trial court,

however, did not rule on the motion before Appellant filed a pro se notice of

appeal to this Court on June 7, 2013. This Court entered an order on June

24, 2013, directing the trial court to conduct a hearing to determine whether

Appellant wished to proceed pro se or have counsel appointed to represent

him on direct appeal.     The trial court held a hearing wherein Appellant

requested appellate counsel.     Trial counsel for Appellant was also present

for the hearing.    On July 16, 2013, the trial court entered an order

                                                                         pro

se appellate claims was that the trial court committed an error of law by

encouraging Appellant to listen to his attorney and not take the stand in his




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Appellant on appeal to this Court.

       On June 11, 2013, during the intervening period between the filing of

             pro se notice of appeal and the order of this Court directing the

trial court to conduct a hearing pursuant to Grazier,1 the trial court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant complied pro se on July 3, 2013.

On July 30, 2013, the trial court issued an opinion pursuant to Pa.R.A.P.

                                                        pro se Rule 1925(b)

                                                                        pro se

1925(b) statement despite Appellant being represented by counsel, we were

constrained to remand the matter to have the trial court direct appointed

counsel to file a counseled Rule 1925(b) statement.



statement and the trial court reaffirmed its Rule 1925(a) opinion filed July

30, 2013. Appellant now appeals and raises the following issues:

          1. Whether the trial court committed an error of law by
             refusing to allow the statements of certain witnesses to
             be in the possession of the jury during their
             deliberations.

____________________________________________


1
   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (When a waiver of
the right to counsel is sought at the post-conviction and appellate stages, an
on-the-record determination should be made that the waiver is a knowing,
intelligent, and voluntary one.).



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           2. Whether the trial court committed an error of law in
              encouraging Appellant not to testify at his trial.

           3. Whether the trial court committed an error of law in its
              instruction to the jury regarding the crime of weapons
              or implements for escape, 18 Pa.C.S.A. §5122(a)(2).

                                                             2



        Further, we allowed Appellant to file a supplemental brief to this Court,

wherein Appellant raises an additional issue for our review:

           4. Whether there was sufficient evidence as a matter of law
              to convict [Appellant] of the crime of weapons or
              implements for escape, in that the Commonwealth could
              not prove that the weapon discovered in the plumbing
              system at SCI [Mahanoy] actually belonged to
              [Appellant?]

               upplemental Brief, at 4 (superfluous capitalization omitted).

        In his first issue presented, Appellant asserts that the trial court erred



possession during their deliberations. Appellant failed to raise this issue in

his counseled Rule 1925(b) statement and, thus, it is waived.                  See

Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013) (claim not



appellate brief, was waived).



                                                                          pro se


____________________________________________


2
    We have re-numbered the issues for ease of disposition.



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filing, we note that Appellant raised the issue in his pro se 1925(b)

statement and the trial court addressed it in its July 30, 2013 Rule 1925(a)

opinion.   Appellant argued that the trial court erred by not sending five

written defense documents, entered into evidence at trial, out with the jury

                                             -9.   The trial court relied upon




should be allowed to go out with the jury during its deliberation is within the

                                       Commonwealth v. Barnett, 50 A.3d



excluding certain items from the jury's deliberations is to prevent placing

undue emphasis or credibility on the material, and de-emphasizing or

                                                           Id.   Here, the trial

court determined that the five written statements submitted by the defense




the jury never requested the documents for review.          Although Appellant

waived the issue, we hold, in the alternative, that the trial court did not



      In his second issue presented for our review, Appellant contends that

the trial court committed an error of law by discouraging him from testifying

                                                    -8.   Appellant claims that

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trial counsel advised him not to testify, but Appellant initially indicated that

he wanted to testify. Id. at 7. Ultimately, however, he did not testify. Id.

Appellant argues:

        After Appellant initially informed the [t]rial [c]ourt that he
        wished to testify, the [c]ourt referred to such a decision as

                                                                ed
        decision regarding whether to testify. The remedy for this
        violation is to order a new trial, wherein Appellant would
        have the right to testify on his own behalf.

Id. at 7-8. Moreover, Appellant claims it was error for the trial court to tell

Appellan



jury might also want to hear from him to see what his side of the story

            Id. at 8.

                 of an accused to testify on his own behalf is a fundamental

tenet of American jurisprudence and is explicitly guaranteed by Article I,

                                                Commonwealth v. Baldwin,

8 A.3d 901, 902-903 (Pa. Super. 2010) (citation omitted); see also U.S.

Const. Amend. VI (guaranteeing the right of an accused to testify on his own

behalf). In addressing the right to testify on one's own behalf, the United

States Supreme Court has held:

        The right to testify on one's own behalf at a criminal trial
        has sources in several provisions of the Constitution. It is


        Fourteenth Amendment's guarantee that no one shall be



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        deprived of liberty without due process of law include a right
        to be heard and to offer testimony:

             A person's right to reasonable notice of a charge
             against him, and an opportunity to be heard in his
             defense-a right to his day in court-are basic in our
             system of jurisprudence; and these rights include, as
             a minimum, a right to examine the witnesses against
             him, to offer testimony, and to be represented by
             counsel.

        Rock v. Arkansas, 483 U.S. 44, 51 (1987). Additionally,
        we note that the decision to testify on one's own behalf is
        ultimately a decision to be made by the accused after
        consultation with counsel.

Baldwin, 8 A.3d at 903 (citation omitted).

      Our review of the certified record, however, does not substantiate

                                      ly shows that the trial court did not

discourage Appellant in any way from testifying.      The trial court said to



                                                                 testify on his

                                             Id. at 96.   The trial court then

asked Appellant if he understood that it was his own choice as to whether or

not to testify, to which Appellant responded that he did, in fact, understand.

Id. at 96.      The trial court heard some defense testimony and asked

Appellant, again, whether he wanted to testify.     Id. at 102-103.      At that

time, Appellant stated that he still wished to testify, but then he ultimately

did not take the witness stand. Id. at 103-104.

      At all times, the trial court properly informed Appellant regarding his

right to testify. Appellant consulted with counsel who recommended against


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it. In the end, Appellant freely chose not to testify. Moreover, we discern

no error by the trial court in telling Appellant that the jury would follow its

no adverse inference instruction. The law presumes that the jury will follow

the court's instructions. See Commonwealth v. Arrington, 86 A.3d 831,

                                                   claim is without merit.

      In his third issue, Appellant claims that the trial court improperly

instructed the jury on the charge of weapons or implements for escape.



Commonwealth must prove that the weapon must be capable of being used

                                      -

disagreed, indicating that the Commonwealth need only prove that the

                        Id. at 9. Thus, Appellant argues that the

standard jury instruction was erroneous. Id.



instructions is one of deference

decision only when it abused its discretion or co

Commonwealth v. Baker, 24 A.3d 1006, 1002 (Pa. Super. 2011) (citations

omitted). Further, this court has said:

         When evaluating jury instructions, the charge must be
         read as a whole to determine whether it was fair or
         prejudicial. The trial court has broad discretion in phrasing
         its instructions, and may choose its own wording so long
         as the law is clearly, adequately, and accurately presented
         to the jury for its consideration.




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Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990) (internal

citations omitted).    The law presumes that the jury will follow the court's

instructions. Arrington, 86 A.3d at 853.

      Appellant was charged with weapons or implements for escape

pursuant to 18 Pa.C.S.A. §5122, which provides, in pertinent part:

        (a) Offenses defined.--

                            *        *           *

        (2) An inmate commits a misdemeanor of the first degree if
        he unlawfully procures, makes or otherwise provides himself
        with, or unlawfully has in his possession or under his
        control, any weapon, tool, implement or other thing which
        may be used for escape.

        (b) Definitions.

                            *        *           *


        implement readily capable of lethal use and shall include
        any firearm, ammunition, knife, dagger, razor, other cutting
        or stabbing implement or club, including any item which has
        been modified or adopted so that it can be used as a
        firearm, ammunition, knife, dagger, razor, other cutting or

        unloaded firearm and the unassembled components of a
        firearm.

18 Pa.C.S.A. § 5122.

      Penal statutes are always to be construed strictly. 1 Pa.C.S.A.

§

ambiguity, the letter of it is not to be disregarded under the pretext of




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Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005) (citation

omitted).   In reading the plain languag

construed according to rules of grammar and according to their common and



     Here, the plain language of the statute clearly states that a weapon is




                                                                ossession or



Pa.C.S.A. § 5122(a) (emphasis added).

     Here, the trial court instructed the jury:

              Now, directing your attention to the specific charge,
        [Appellant] has been charged with being an inmate having a
        weapon or escape implement. To find [Appellant] guilty of
        this offense, you must find that each of the following three
        elements has been proven beyond a reasonable doubt:

              First, that [Appellant] was an inmate at a correctional
        inst
        regards to that. He is a prisoner or was a prisoner on that
        date at SCI Mahanoy in Schuylkill County. And that is a
        given.

              Second, that [Appellant] procured, made or provided
        to himself and/or had in his possession or under his control
        a weapon or a tool, implement or some other thing that
        may be used for escape. And third, that [Appellant] did so
        unlawfully. Unlawfully means surreptitiously or contrary to


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        law, regulation or order of the detaining authority; in this
        case, State Correctional Institution at Mahanoy.

              Third, that [Appellant] did so unlawfully. It means
        surreptitiously or contrary to law or other detaining
        authority, which I just mentioned. So those are three
        factors: An inmate at a correctional institution; in this case,

        possession or procured or made a weapon and/or a tool or
        implement or other thing that may be used for escape. And
        third, that he did so unlawfully; it was against regulations of
        the SCI Mahanoy or contrary to law. And weapon includes
        any knife or similar implement[.]

N.T., 4/9/2013, at 138-139.

      In this case, a six-inch metal rod sharpened to a point is certainly

capable of lethal use, which, in turn, may have been used to escape. Upon

review, the trial court gave a standard jury instruction properly setting forth

the elements of the crime. We discern no abuse of discretion or error of law.



      Finally, Appellant argues that there was insufficient evidence to convict



8-10. More specifically, he claims that the plumbing underneath the prison

                                                         s of any of those cells

could have been responsible for the shank that was recovered in the

                 Id. at 10.

      Our standard of review for a challenge to the sufficiency of the

evidence 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

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J-S19025-14


        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
        finder 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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citation

omitted).

     Here, Appellant only challenges his possession of the weapon found.

Upon review of the record, in the light most favorable to the Commonwealth,



possession. Corrections Officer Aaron Schultz, testified that, while looking

through a ce




remained on the top bunk the entire time. Id. at 35. After both men were



                                              Id. at 37. Appellant, who was

in the hallway outside the cell, came back into the cell without permission



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and flushed the toilet a second time.        Id. at 39.   When the corrections

officers had the toilet removed and extracted a metal wire with cloth

wrapped around it from the plumbing, Appellant voluntarily claimed

ownership. Id. at 50.     Such evidence was sufficient to show Appellant was



without merit.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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