J-S56028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL ALAN WILKINS

                            Appellant                 No. 1401 MDA 2015


              Appeal from the Judgment of Sentence July 16, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003315-2013


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 26, 2016

        Appellant, Michael Alan Wilkins appeals from the judgment of sentence

entered after he was convicted of, among others, three counts of first

degree murder. Wilkins raises multiple challenges to his convictions,

including an argument that the trial court erred in not severing the trial of

the third murder from the other two. After careful review, we affirm.

        In the early morning of December 4, 2012, gunmen shot and killed

Dario R. McLemore and Rafael Alequin in Reading. Three weeks later, the

charred body of Jennifer Velez-Negron was found near a road in Lehigh

County. A wad of cloth was taped into her mouth, and heroin and cocaine

were found in her system.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      The Commonwealth charged Wilkins with the murder of all three

victims. At trial, the Commonwealth presented the following evidence to

support its charges. Carlos Vargas-Osario testified that he lived with Wilkins

and Wilkins’s brother, Maurice. In the early morning of December 4, 2012,

Vargas-Osario drove to Reading in his blue Camaro to find narcotics to

purchase. While there, Wilkins pulled alongside him in an SUV. Vargas-

Osario noticed that both Maurice and Wilkins’s girlfriend, Velez-Negron, were

in Wilkins’s SUV.

      Wilkins   instructed   Vargas-Osario   to   follow   him.   Vargas-Osario

proceeded to follow the SUV in his Camaro. Shortly thereafter, he observed

Maurice leave the SUV and discharge a firearm several times into a nearby

vehicle. Maurice then got into the Camaro, and Vargas-Osario began to drive

away. As he left the scene, he watched as someone fled the vehicle Maurice

had shot at. He heard gunfire erupt from driver’s side of Wilkins’s SUV.

      Reading Police Officer Tina Fallstich was on patrol at the time of the

shooting and heard the shots from a nearby intersection. She proceeded to

the location of the shooting and eventually discovered the body of Rafael

Alequin slumped over in the passenger seat of a vehicle double parked in the

road. As she was radioing in her observation, she noticed the body of Dario

McLamore face down several feet away on the sidewalk.

      The Commonwealth presented video from a nearby security camera.

Investigator Eric Driesbach described the video as it played to the jury:


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      The video … shows … three vehicles pulling up, stopping for what
      appears to be a red light, obviously, because they all stopped. A
      gentleman gets out of the passenger side of the second vehicle
      in line, walks over to the curb on the north side of the block right
      next to the first parked car, approaches the car, appears to fire
      at least two gunshots at the car. The first car pulls through the
      intersection. The gentleman walks a little bit north on South
      Tenth Street. The other two vehicles go through the intersection
      and then the male returns to the third vehicle in line that was
      originally stopped in line.

While the video did not display the shooting of Dario McLamore, spent

cartridges found near his body were of a different caliber than those found in

the area of the body of Rafeal Alequin.

      Vargas-Osario testified that Wilkins later admitted to the killing by

explaining his motive. McLamore and Alequin had previously sold Wilkins

fake narcotics for $800. Furthermore, he testified that Wilkins was angry

with his girlfriend, Velez-Negron, as she had introduced Wilkins to McLamore

and Alequin.

      Javonda Lebo testified that Wilkins and his brother had confessed to

the shootings later in the morning of December 4. Wilkins expressed to her

that Velez-Negron was at fault for the drug deal gone wrong, and that Velez-

Negron “got to go, like for setting them up.” Approximately two weeks later,

Wilkins and Maurice asked Lebo to create a mixture of cocaine and heroin in

an effort to get Velez-Negron to overdose. When this attempt failed, Wilkins

and his brother attempted to convince Velez-Negron to administer the fatal

narcotic cocktail to Vargas-Osario.




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      After Velez-Negron’s burnt body was discovered, Maurice showed Lebo

a video of Velez-Negron taped to a chair. Maurice told Lebo that he and

Wilkins had given Velez-Negron three bags of heroin. Wilkins was standing

next to the chair, holding a clear plastic bag. Maurice asked Velez-Negron

whether she would set anyone else up, and she shook her head. One of the

men shoved a white cloth in Velez-Negron’s mouth. Wilkins placed the

plastic bag over Velez-Negron’s head as the men threatened her. After

playing the video, Wilkins admitted to Lebo that he had murdered Velez-

Negron.

      The jury found Wilkins guilty of three counts of first degree murder,

two counts of conspiracy to commit murder, one count of kidnapping, one

count of criminal solicitation to commit murder of Vargas-Osario, and several

other lesser charges. After a penalty phase trial, the jury reached a

unanimous verdict of life imprisonment for the murder of Alequin. However,

the jury could not reach a unanimous verdict for the murders of McLamore

and Velez-Negron. As a result, the trial court imposed an aggregate

sentence of three consecutive lifetimes. This timely appeal followed.

      On appeal, Wilkins first argues that the trial court erred in failing to

grant his motion to sever the trial on the charge of the murder of Velez-

Negron from the trial of the other two murder charges. He contends that the

crimes were not factually related, and that the joint trial prejudiced him

unfairly.


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      We will reverse a trial court’s decision to consolidate offenses for trial

only if in doing so it abused its discretion. To address Wilkins’s challenge, we

must determine:


      [1] whether the evidence of each of the offenses would be
      admissible in a separate trial for the other; [2] whether such
      evidence is capable of separation by the jury so as to avoid
      danger of confusion; and, if the answers to these inquiries are in
      the affirmative; [3] whether the defendant will be unduly
      prejudiced by the consolidation of offenses.

Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa. Super. 1999) (citation

omitted). See also Pa.R.Crim.P. 582 and 583.

      Accordingly, our first step is to determine whether the evidence

regarding Wilkins’s involvement in Velez-Negron’s murder would have been

admissible if that count had been tried separately. It is impermissible to

present evidence at trial of a defendant’s prior bad acts or crimes to

establish   the   defendant’s   criminal   character    or   proclivities.   See

Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). Such

evidence, however, may be admissible “where it is relevant for some other

legitimate purpose and not utilized solely to blacken the defendant’s

character.” Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super.

2007) (citation omitted). The Rules of Evidence specifically provide that

“[e]vidence of other crimes, wrongs, or acts may be admitted for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity or absence of mistake or accident.” Pa.R.E. 404(b)(2).



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      Here, we have little difficulty in concluding that the evidence of each

crime would have been admissible in separate trials. The evidence linking

Wilkins to the murder of Velez-Negron would have been admissible in a

separate trial for the murders of McLamore and Alequin, as it tended to

establish    Wilkins’s   consciousness    of   guilt    for     these   slayings.   See

Commonwealth v. Irons, 326 A.2d 488, 491 (Pa. Super. 1974). Similarly,

evidence of Wilkins’s involvement in the killings of McLamore and Alequin

would have been admissible in a separate trial for the murder of Velez-

Negron      as   evidence   of   Wilkins’s     motive     for     the   murder.     See

Commonwealth v. Paddy, 800 A.2d 294, 307 (Pa. 2002).

      The next step is to determine whether joinder of the trials poses a

danger of confusing the jury. Where the criminal offenses at issue are

distinguishable in time, place and parties involved, there is no danger of jury

confusion. See Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997).

Here, the crimes occurred in different places, at different times, and involved

different victims; there was no danger of confusing the jury with evidence of

each crime.

      Finally, we must determine whether joinder of the trials unfairly

prejudiced Wilkins.

      The “prejudice” of which Rule [583] speaks is not simply
      prejudice in the sense that appellant will be linked to the crimes
      for which he is being prosecuted, for that sort of prejudice is
      ostensibly the purpose of all Commonwealth evidence. The
      prejudice of which Rule [583] speaks is, rather, that which would
      occur if the evidence tended to convict appellant only by showing

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      his propensity to commit crimes, or because the jury was
      incapable of separating the evidence or could not avoid
      cumulating the evidence.

Newman, 598 A.2d 275, 279 (Pa. 1991) (citation omitted). Given the

breadth of the Commonwealth’s evidence regarding each murder, we cannot

conclude that the joint trial resulted in the jury convicting him merely due to

his propensity to commit crimes. Rather, the evidence, taken as a whole,

demonstrated an ongoing criminal enterprise based upon Wilkins’s belief that

he had been cheated in a narcotics transaction with McLamore and Alequin.

Under these circumstances, we cannot conclude that the trial court abused

its discretion in refusing to sever the charges. Thus, Wilkins’s first issue on

appeal merits no relief.

      In his second issue, Wilkins challenges the sufficiency of the evidence

to establish that he participated in a conspiracy to kill McLamore and

Alequin. “The standard for review is whether the evidence admitted at trial,

and all reasonable inferences drawn therefrom, when viewed in the light

most favorable to the Commonwealth as verdict winner, was sufficient to

enable the factfinder to conclude that the Commonwealth established all of

the elements of the offense beyond a reasonable doubt.” Commonwealth

v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007) (citation omitted). “To

sustain a conviction of criminal conspiracy[,] … [t]he Commonwealth must

establish that the defendant (1) entered into an agreement to commit or aid

in an unlawful act with another person or persons, (2) with a shared criminal


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intent, and (3) an overt act done in furtherance of the conspiracy.”

Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa. Super. 2005)

(citation omitted); see also 18 Pa.C.S.A. § 903. Circumstantial evidence

may suffice as proof of the conspiracy. See Bricker, 822 A.2d at 1017.

     Wilkins contends that the Commonwealth presented no evidence

beyond his mere presence to support his convictions for the murder of

McLamore and Alequin. However, this argument misconstrues the evidence

at trial. The Commonwealth presented evidence that Wilkins admitted that

he and Maurice killed McLamore and Alequin because the victims had

cheated Wilkins in a prior narcotics transaction. See N.T., Trial, 6/8/15 –

6/12/15, at 653. Furthermore, the Commonwealth presented evidence that

Wilkins attempted to cover-up his involvement in the murders of McLamore

and Alequin. See id., at 654-662. This evidence was sufficient to permit the

jury to infer that Wilkins and his brother were acting upon an agreed course

of conduct when McLamore and Alequin were murdered. Thus, Wilkins’s

second issue on appeal merits no relief.

     Next, Wilkins argues that the trial court should have provided special

interrogatories for the jury to answer while it deliberated. Wilkins concedes

that no Pennsylvania authority exists to support his argument. See

Appellant’s Brief, at 20. Indeed, as the Commonwealth points out, the use

of special interrogatories in criminal trials “has been almost universally

condemned.” Commonwealth v. Jacobs, 39 A.3d 987, 987 (Pa. 2012)


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(citation omitted). Under these circumstances, we cannot conclude that

Wilkins’s third argument on appeal merits any relief.

      In his fourth issue, Wilkins challenges the trial court’s failure to order a

new trial based upon the weight of the evidence. However, Wilkins did not

raise this challenge before the trial court. “Failure to challenge the weight of

the evidence presented at trial in an oral or written motion prior to

sentencing or in a post-sentence motion will result in waiver of the claim.”

Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa. Super. 2012) (citation

omitted). The trial court notes that Wilkins did not raise this issue before

appeal, and our review of the certified record reveals that there was no oral

challenge or written post-sentence motion. As a result, Wilkins’s fourth issue

on appeal is waived.

      In his fifth and final issue, Wilkins argues that the trial court erred in

admitting evidence that he had attempted to interfere with the testimony of

potential witnesses to the crimes. “[T]he admission of evidence is within the

sound discretion of the trial court and will be reversed only upon a showing

that the trial court clearly abused its discretion.” Commonwealth v.

Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012), appeal denied, 76 A.3d

538 (Pa. 2013) (citations omitted). As noted above, evidence of prior bad

acts is not admissible purely to blacken a defendant’s character. However,

this evidence may be admitted where its probative value outweighs its

potential for unfair prejudice to the defendant.


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      Evidence that Wilkins attempted to influence the availability and

testimony   of   witnesses   at   his    trial   was   relevant   evidence   of   his

consciousness of guilt. See Commonwealth v. Bradley, 69 A.3d 253, 258

(Pa. Super. 2013). Furthermore, as we noted above, the breadth of the

Commonwealth’s evidence linking Wilkins to the murders supports the trial

court’s conclusion that the jury was not likely to convict Wilkins based

merely upon his proclivity to commit crimes. Rather, this evidence fit clearly

within the Commonwealth’s case that Wilkins was involved in a vendetta

against the victims that led to the victims’ deaths. Wilkins’s final issue on

appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




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