J-S15005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RASHEED HALL : : Appellant : No. 663 EDA 2021
Appeal from the Judgment of Sentence Entered August 21, 2015, In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004943-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RASHEED HALL : : Appellant : No. 664 EDA 2021
Appeal from the Judgment of Sentence Entered August 21, 2015, In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004945-2014
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 24, 2022
In these nunc pro tunc appeals,1 Appellant Rasheed Hall, appeals from
the judgments of sentence entered after a jury found him guilty of multiple
crimes relating to the robbery of Sharday Williams and the shooting of Derrick
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1This Court consolidated Appellant’s appeals sua sponte pursuant to Pa.R.A.P. 513. Order, 8/23/21. J-S15005-22
Moye.2 Appellant purports to challenge the sufficiency of the evidence, and
he claims the trial court abused its discretion by permitting a witness to testify
regarding the discovery of a firearm because the testimony was allegedly more
prejudicial than probative. We affirm.
The trial court summarized the relevant facts of this case as follows:
On January 30, 2014, at 11:30 p.m., Sharday Williams and her boyfriend Derrick Moye left Moye’s residence located on the 2600 block of West Lehigh Avenue. After taking a few steps towards her car, co-defendant Clinton Brown approached Williams, stole her wallet, and ran away. Observing the robbery of his girlfriend Williams, Moye chased after co-defendant Brown. As Moye chased co-defendant, [Appellant] emerged from the front of a nearby bar, struck Moye in the head with a firearm and then fired one shot into Moye’s chest. [Appellant] and co-defendant then fled the scene together on foot, running in the same direction.
Following the shooting, Williams and Moye went to Moye’s home, where his mother also resided. Moye’s mother dialed 911, and police and an ambulance arrived shortly thereafter. Moye was taken to Temple University Hospital. Police officers then took Williams to Northwest Detectives where she provided a description of [Appellant and co-defendant]. Based upon “flash” information describing [Appellant] and co-defendant, police officers stopped three males who were standing together: [Appellant], co- defendant, and another male. An hour after the robbery and shooting, [o]fficers then brought Williams to the location where ____________________________________________
2 Appellant properly filed separate appeals at each trial court docket. See Commonwealth v. Johnson, 236 A.3d 1141, 1144 (Pa. Super. 2020) (en banc), appeal denied, 242 A.3d 304 (Pa. 2020); see also Pa.R.A.P. 341. However, Appellant purports to appeal from the March 26, 2021 order denying his post-sentence motions that were filed nunc pro tunc. It is well settled that the appeal “properly lies from the judgment of sentence made final by the denial of post-sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted). Appellant’s judgments of sentence were entered on August 21, 2015, and we have corrected the appeal paragraphs accordingly. See id.
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officers had the three individuals stopped, and Williams identified [Appellant] and co-defendant as the two males who stole her wallet and shot Moye.
Search incident to their arrests, police recovered two cell phones from [Appellant] and co-defendant. Detectives obtained search warrants for the phones, however, they were unable to access [Appellant’s] phone. After obtaining the cell phone number for co-defendant’s phone, detectives then obtained search warrants for the subscriber information and call logs for that phone. Detectives determined that co-defendant’s contacts included one with the name of “Sheed.” The number associated with “Sheed” was [Appellant’s] cell phone number. Detectives called the number for “Sheed,” and [Appellant’s] cell phone rang. Detectives reviewed the call logs and determined that [Appellant] and co- defendant communicated multiple times during the period of January 29, 2014 to January 31, 2014, including two phone calls, roughly eight minutes apart, that occurred just after the robbery and shooting.
Police obtained a warrant to search the property located at 2531 West Oakdale Street, where [Appellant] resided. As part of the search, Detective Leonard Azzarano recovered five .32 caliber rounds, one .40 caliber round, and fourteen .22 caliber rounds from a bowl in the kitchen. Detective Azzarano also recovered one black and one tan jacket from the dining room. Detective Kevin Sloan recovered numerous .45 caliber rounds from inside a suitcase in the middle bedroom of the second floor, along with a dry cleaning receipt, dated 1/28/14, with [Appellant’s] name on it and a description of the article of clothing cleaned as one jumpsuit. Shortly after the robbery, police recovered a silver .22 caliber revolver from the 2600 block of Sterner Street, which was approximately one block from the residence of co-defendant Brown.
Hyung Le, a forensic scientist with the Philadelphia Police Office of Forensic Science, testified that there was gunshot residue on the black Dickie jumpsuit worn by [Appellant] and recovered from him the night of his arrest, in particular, on the outside front and back of the right sleeve and cuff.
At a suppression hearing, Williams testified that on the night of the robbery and shooting, she and her boyfriend Moye exited his house. As they were walking toward her car, co-defendant Brown came from her right, snatched her purse and ran off to the left.
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As Moye chased after co-defendant, Williams observed [Appellant] step out from in front of the bar that was two houses down, run towards Moye and shoot him in the chest. Williams described [Appellant] as wearing a black hoodie, a black Dickie jacket and blue pants. Williams stated that from the time they exited the house until the shooting occurred was about two minutes.
Detective Wayne Brown testified that he brought Williams to identify three males who had been stopped within an hour of when the shooting occurred. Detective Brown testified that the three males who were detained were standing outside the police car, that it was dark but the streetlights were lit, that Williams was seated in the [d]etective’s car no more than 15 [feet] to 20 [feet] away with a clear view of the males, and that Williams positively identified [Appellant] and co-defendant as the two individuals involved in the robbery and shooting. Detective Brown testified that Williams identified [Appellant] by his Dickie outfit or jacket.
Trial Ct. Op., 8/9/21, at 1-4 (formatting altered).
On May 26, 2015, at trial court docket number 4943-2014, the jury
found Appellant guilty of aggravated assault, possession of an instrument of
crime (PIC), conspiracy to commit aggravated assault, and Violations of the
Uniform Firearms Act (VUFA) possession of a firearm by a prohibited person
and carrying a firearm without a license.3 At trial court docket number 4945-
2014, the jury found Appellant guilty of robbery and conspiracy to commit
robbery.4 On August 21, 2015, the trial court imposed an aggregate sentence
of 198 months to 396 months of incarceration.
3 18 Pa.C.S. §§ 2702(a)(1), 907, 903, and VUFA §§ 6105(a)(1) and 6106(a)(1), respectively. Also at docket 4943-2014, Appellant entered a guilty plea to one count of possession with intent to deliver a controlled substance in violation of 35 P.S. § 780-113(a)(30).
4 18 Pa.C.S. §§ 3701(a)(1)(ii), and 903, respectively.
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Appellant filed timely appeals at each trial court docket. After review,
this Court concluded that Appellant failed to properly preserve his issues on
appeal, found all of Appellant’s issues waived, and affirmed the judgments of
sentence. Commonwealth v. Hall, 2705 EDA 2015, 2017 WL 2829319, at
*3 (Pa. Super. filed June 30, 2017) (unpublished mem.). Thereafter,
Appellant filed a timely pro se Post Conviction Relief Act5 (PCRA) petition. The
PCRA court appointed counsel, and Appellant filed an amended PCRA petition
on March 19, 2020, and a second amended PCRA petition on November 19,
2020. In his second amended PCRA petition, Appellant asserted that prior
counsel was ineffective and requested the reinstatement of his post-sentence
motion and direct appeal rights nunc pro tunc. On November 20, 2020, the
PCRA court granted Appellant’s second amended PCRA petition and reinstated
Appellant’s post-sentence motion and direct appeal rights nunc pro tunc.
On November 21, 2020, Appellant filed post-sentence motions nunc pro
tunc. The trial court denied Appellant’s post-sentence motions, and Appellant
filed an appeal nunc pro tunc at each trial court docket. Appellant’s appeal at
4945-2014 was assigned Superior Court docket 664 EDA 2021, and the appeal
at trial court docket 4943-2014 was assigned Superior Court docket 663 EDA
2021.
After Appellant filed his counseled nunc pro tunc direct appeals,
Appellant filed a petition to proceed pro se and requested a hearing pursuant
5 42 Pa.C.S. §§ 9541-9546.
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to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On June 3, 2021,
this Court remanded this matter to the trial court for a Grazier hearing at
both 663 EDA 2021 and 664 EDA 2021. On July 9, 2021, the trial court held
a Grazier hearing and concluded that Appellant properly waived his right to
counsel, vacated the appointment of counsel, and permitted Appellant to
proceed pro se at both dockets. As noted, these appeals were consolidated
sua sponte, and the trial court filed its opinion on August 9, 2021.6
While Appellant was proceeding pro se in the instant appeal, Justin C.
Capek, Esquire, (Counsel) entered his appearance on behalf of Appellant on
June 29, 2022. Counsel filed an application to strike Appellant’s pro se brief
and a request for an extension of time to file a corrected Rule 1925(b)
statement. In an order filed on July 18, 2022, this Court granted the
application to strike Appellant’s pro se brief, denied the request to file a
corrected Rule 1925(b) statement and request for an extension of time in
6 Appellant was permitted to proceed pro se on July 9, 2021, following the Grazier hearing, and Appellant filed his pro se Rule 1925(b) statement that same day at both trial court dockets. The trial court filed its Rule 1925(a) opinion on August 9, 2021. On September 14, 2021, Appellant filed a pro se motion in this Court requesting that we remand for the trial court to address the issue Appellant raised in his Rule 1925(b) statement. However, the only issue Appellant raised in his Rule 1925(b) statement was a challenge to the sufficiency of the evidence for his convictions for robbery and aggravated assault, which the trial court addressed in its August 9, 2021 opinion. This Court denied Appellant’s motion for remand on October 5, 2021.
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which to file a new Rule 1925(b) statement,7 and permitted Appellant to file
an amended counseled brief within thirty days. Appellant timely filed his
amended brief on August 9, 2022, and the Commonwealth timely filed its
amended brief on September 8, 2022.
In his amended brief, Appellant presents the following issues:
1. Whether the evidence presented at trial was insufficient to sustain the verdicts of guilty for the crimes of aggravated assault, VUFA §§ 6105 & 6106, possession of an instrument of crime, and conspiracy to commit aggravated assault?
2. Whether the trial court abused its discretion by permitting Ms. Gloria Mitchell to testify to the discovery of a firearm when the probative value of her testimony did not substantially outweigh the prejudice to [Appellant] at trial?
Appellant’s Am. Brief at 3 (formatting altered).
Before we reach the merits of Appellant’s claims, we must first address
whether Appellant properly preserved these issues. In Appellant’s pro se July
9, 2021 Rule 1925(b) statement, he challenged the sufficiency of the evidence
concerning his convictions for robbery and aggravated assault. See Rule
1925(b) Statement, 7/9/21. As stated previously, after the Grazier hearing
where Appellant was permitted to proceed pro se and after the appellate briefs
were filed in this matter, Counsel entered his appearance for Appellant, and ____________________________________________
7 In its amended brief, the Commonwealth incorrectly states that the July 18, 2022 order of this Court granted Appellant’s request to file a corrected Rule 1925(b) statement. Commonwealth’s Am. Brief at 6. In fact, this Court in its July 18, 2022 order granted the application to strike Appellant’s pro se brief and permitted Appellant’s counsel to file an amended counseled brief. See Order, 7/18/22 at 1-2. However, this Court denied Appellant’s application to file a corrected Rule 1925(b) statement. See id. at 2.
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he filed a request to strike Appellant’s pro se brief and a request to file a
corrected Rule 1925(b) statement and an extension of time in which to file the
new Rule 1925(b) statement. Although we granted Appellant’s application to
strike the pro se brief and permitted Appellant’s counsel to file an amended
brief, this Court denied Appellant’s request to file a new Rule 1925(b)
statement. However, in his counseled amended brief, Appellant argues issues
that were not raised in his pro se July 9, 2021 Rule 1925(b) statement, namely
the lack of sufficiency of the evidence for the crimes of aggravated assault,
conspiracy to commit aggravated assault, VUFA §§ 6105 and 6106, and PIC,
based on vague, tenuous, uncertain, and prejudicial witness testimony from
one of the victims, Sharday Williams, concerning his identification as a
perpetrator, and the discovery of a firearm. Further, Appellant challenges the
sufficiency of the evidence based on the lack of corroborating ballistic evidence
for the gunshot primer residue, and he claims the trial court abused its
discretion by admitting testimony from Gloria Mitchell, the person who
discovered the firearm in the snow a few blocks away from the shooting, was
more prejudicial than probative. See Appellant’s Am. Brief at 3, 13, 18, 19,
20-23; Rule 1925(b) Statement, 7/9/21.
It is well settled that only issues properly raised in a timely Rule 1925(b)
statement are preserved for appellate review. See Commonwealth v.
Castillo, 888 A.2d 775, 780 (Pa. 2005) (holding that issues not raised in a
Rule 1925(b) statement will be deemed waived for appellate review); see
also Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not included in the
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Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived”), 302(a) (providing that issues may not be
raised for the first time on appeal).
In the argument section of his counseled amended brief, Appellant
asserts that the evidence was insufficient to prove him guilty of aggravated
assault beyond a reasonable doubt based on the insufficiency of the
identification evidence and gunshot residue evidence, not lack of proof of
serious bodily injury. See Appellant’s Am. Brief at 13-20. In contrast, in his
pro se Rule 1925(b) statement, Appellant asserted that the evidence was
insufficient for aggravated assault because the Commonwealth allegedly failed
to prove serious bodily injury. Notably, Appellant did not challenge the
sufficiency of his conspiracy to commit aggravated assault conviction in his
pro se Rule 1925(b) statement. Appellant also challenged the sufficiency of
his robbery conviction in his Rule 1925(b) statement, which was not argued
in his counseled amended brief. See Rule 1925(b) Statement, 7/9/21.
Because the issues Appellant now argues were not raised in his Rule 1925(b)
statement, we are constrained to conclude that Appellant’s sufficiency claims
for aggravated assault and conspiracy to commit aggravated assault are
waived. Additionally, Appellant did not include any sufficiency of the evidence
claims in his pro se 1925(b) statement concerning the PIC nor VUFA offenses,
therefore, the instant sufficiency claims for these offenses are also waived.
Further, we agree with the Commonwealth that Appellant’s claims that the
identification testimony from one of the victims, Sharday Williams, and the
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ballistics experts’ testimony were vague, tenuous, uncertain, and prejudicial
is tantamount to an attack on the credibility of these witnesses which is an
improper basis to establish a sufficiency of evidence claim. Commonwealth’s
Am. Brief at 8. Therefore, Appellant’s claims fail even if there were not
waived. See Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super.
2013); Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Super. 2009).
Additionally, Appellant did not assert any of these theories nor a challenge to
the admissibility of Gloria Mitchell’s testimony, the individual who found the
firearm on the ground a few days after the incident, in his Rule 1925(b)
statement.
Our review concludes that the waiver of all of Appellant’s sufficiency
claims is appropriate because his Rule 1925(b) statement did not state the
specific elements for offenses that Appellant now alleges the Commonwealth
failed to prove at trial, and further, his counseled amended brief asserts
theories different from those raised in his Rule 1925(b) statement. See
Castillo, 888 A.2d at 780; see also Commonwealth v. Jones, 191 A.3d
830, 834-35 (Pa. Super. 2018) (finding a challenge on appeal under theory
different from that raised in the Rule 1925(b) statement waived because the
trial court did not have an opportunity to review it); Commonwealth v.
Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (stating “in order to preserve
a challenge to the sufficiency of the evidence on appeal, an appellant’s Rule
1925(b) statement must state with specificity the element or elements upon
which the appellant alleges that the evidence was insufficient.” (citation
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omitted)); Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006)
(providing that “[a] theory of error different from that presented to the trial
jurist is waived on appeal, even if both theories support the same basic
allegation of error which gives rise to the claim for relief.” (quoting
Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. Super. 1987));
Pa.R.A.P. 1925(b)(4)(vii), 302(a). Likewise, Appellant’s claim concerning the
admissibility of Gloria Mitchell’s testimony was not raised in his Rule 1925(b)
statement.8 See Castillo, 888 A.2d at 780. For these reasons, we conclude
that Appellant has waived the issues he presents on appeal, therefore, we
affirm the judgments of sentence.9
Judgments of sentence affirmed.
8To clarify and distinguish Appellant’s attempts to challenge the testimony of Sharday Williams and Gloria Mitchell, we note that in his amended brief, Appellant for the first time asserts that Sharday Williams’ testimony failed to establish the Appellant’s identity as the shooter, and this claim was not presented in Appellant’s Rule 1925(b) statement. However, Appellant’s challenge with respect to Gloria Mitchell’s testimony, is that the trial court abused its discretion in admitting her testimony. This issue was not raised in Appellant’s Rule 1925(b) statement and is therefore, waived.
9 In any event, were we to reach the merits of Appellant’s challenge to the sufficiency of the evidence underlying his convictions, we would affirm based on the trial court’s opinion. See Trial Ct. Op., 8/9/21.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/24/2022
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