Com. v. Harris, K.

• Court: Superior Court of Pennsylvania
• Decided: September 23, 2014
• Docket: 1897 EDA 2013
• Status: Unpublished

Opinion

J-S45029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KAHYAN HARRIS

Appellant No. 1897 EDA 2013

Appeal from the Judgment of Sentence of January 28, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0015135-2009

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 23, 2014

Kahyan Harris appeals his December 13, 2011 judgment of sentence,

following his convictions for second-degree murder, robbery, criminal 1 In relevant

part, Harris challenges the weight and sufficiency of the evidence presented

at trial by the Commonwealth, and Harris also claims that the trial court

erred in admitting unfairly prejudicial evidence. We affirm.

In its opinion issued pursuant to Pa.R.A.P. 1925(b), the trial court

summarized the factual and procedural history of this case as follows:

____________________________________________

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 2502(b), 3701, 903, and 907, respectively. J-S45029-14

The evidence admitted at trial established that on March 25,

with a .38/.357 caliber weapon. [The Decedent] was found lying face down on the 4500 block of N. 19th Street in Philadelphia by

Sakinah Davis.

Thomas James Upshaw, III, testified that he knew [the Decedent] for approximately [thirty] years. Mr. Upshaw helped the [D]ecedent run his barbershop and also sold small quantities of drugs for him. Mr. Upshaw stated that he knew that there were drugs stored at 4530 N. 19th Street, but he was unaware of the quantity or where they were kept.

On March 25, 2009, Mr. Upshaw and the [D]ecedent were closing up the barbershop and went to 4530 N. 19th Street to get supplies. The [D]ecedent kept the supplies at the house, because they would go missing when kept at the barbershop. The [D]ecedent went upstairs to use the bathroom. Mr. Upshaw heard the phone ring and then the toilet flush. There was a

two males wearing black hoodies and jeans tried to push their way into the house. Mr. Upshaw tried closing the door but was unable to shut the door fast enough. The two males entered the house.

The first male (later identified as Brandon Huggins) put a gun in Mr. Ups

[Harris], pushed him to the side and ran out of the front door; [Harris] ran after him.2 After they both ran out of the house,

Upshaw heard three (3) gunshots from outside; he heard a

Huggins] did not fire. He he

ran out of the house. Once outside, Mr. Upshaw saw the [D]ecedent on the ground; Sakinah was standing over him. When the police arrived, Mr. Upshaw gave an officer a description of the two men.

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2 During the tussle between the [D]ecedent and [Harris,

was able to get a good look at his face and neck.

Mr. Upshaw testified that he did not [initially] recognize either of the males. Once home, he remembered tattoos containing

his statement to the police on the night of the shooting, Mr. Upshaw did not mention any tattoos because he stated that his thoughts were not exactly clear at the time. He did talk to the

gave him a description of the two men and of the tattoos; he told Thomas one tattoo appeared to be a tear drop [sic] under the eye. Mr. Upshaw stated that he identified [Harris] because of his facial hair and the tattoo and that he had observed

identified [Huggins] as the person who held a gun in his face. All identifications were based on facial features, a beard and a tattoo; Mr. Upshaw stated that he remembered [Harris].

* * *

[Harris] was arrested . . . on June 9, 2009.

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omitted).

On December 13, 2011, after a jury trial, [Harris] was found guilty of murder of the second degree, robbery, criminal conspiracy, and PIC. On January 28, 2013, for the conviction of murder of the second degree[, Harris] was sentenced to life imprisonment without parole. Concurrent terms of [ten] to [twenty] years of imprisonment were imposed on the convictions of robbery and criminal conspiracy. No further penalty was imposed on the conviction of PIC.1 1 Prior to sentencing, [Harris] entered pleas of guilty to murder of the third degree, criminal conspiracy, and PIC on bill of information CP-51-CR-0011046-2009. The Commonwealth and [Harris] negotiated a concurrent sentence of [twenty] to [forty] years of incarceration. On bills of information CP-51-CR-0008171-2009 and CP-51- CR-0002180-2010, [Harris] entered pleas of guilty to [two]

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counts each of robbery and criminal conspiracy. The Commonwealth and [Harris] negotiated a concurrent sentence of [ten] to [twenty] years of incarceration. On bill of information CP-51-CR-0005102-2012, [Harris] entered pleas of guilty to aggravated assault and PIC. The Commonwealth and [Harris] negotiated a concurrent sentence of [five] to [ten] years of incarceration. These .

Id. at 1-2.

On February 6, 2013, Harris filed a timely post-sentence motion

challenging the weight of the evidence. On May 31, 2013, the trial court

timely notice of appeal. On June 26, 2013, the trial court directed Harris to

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

Pa.R.A.P. 1925(b). On July 13, 2013, Harris timely complied. On August

30, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Harris raises the following three issues for our consideration:

I. Is [Harris] entitled to an arrest of judgment on the charge of [m]urder in the [s]econd degree and all related charges where the evidence is insufficient to sustain the verdict?

II. Is [Harris] entitled to a new trial as the verdict is not supported by the greater weight of the evidence?

III. Is [Harris] entitled to a new trial where the court admitted irrelevant evidence which was unfairly prejudicial to [Harris] in the form of a letter allegedly written by him but where the letter itself was not relevant to any issue or if relevant, should have been precluded by Rule 403?

Brief for Harris at 3.

Harris first challenges the sufficiency of the evidence offered at trial to

prove him guilty of robbery, and, by extension, second-degree murder.

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there was ever a robbery. In that there was no robbery, and in that there

was no other predicate felony, there can be no basis for a finding of Murder

Id. at 7. We disagree.

When examining a challenge to the sufficiency of evidence, our legal

standard of review is well-established:

The standard we apply . . . is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there 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 -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 [trier] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120-

person is guilty of robbery if, in the course of committing a theft, he

threatens another with or intentionally puts him in fear of immediate serious

constitutes murder of the second degree when it is committed while

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defendant was engaged as a principal or an accomplice in the perpetration of

commit, or flight after committing, or attempting to commit robbery, rape,

or deviate sexual intercourse by force or threat of force, arson, burglary or

With specific regard to sufficiency of the evidence in the context of

robbery, this Court has held not an essential element of robbery

that there be a completed theft. It is enough that force was used during an

Commonwealth v. Lloyd, 545 A.2d 890, 892 (Pa.

Super. 1988) (emphasis added). Furthermore, we have stated the following

with regard to what must be proved to sustain a robbery conviction:

The Commonwealth need not prove a verbal utterance or threat to sustain a conviction under subsection 3701(a)(1)(ii). It is sufficient if the evidence demonstrates aggressive actions that

3701(a)(1)(ii), the proper focus is on the nature of the trheat posed by an assailant and whether he reasonably placed a victim threat posed by the appearance of a firearm is calculated to inflict fear or deadly

entitled to infer that a victim was in mortal fear when a defendant visibly brandished a firearm.

Commonwealth v. Alford, 880 A.2d 666, 676 (Pa. Super. 2005) (quoting

Commonwealth v. Hopkins, 747 A.2d 910, 914-15 (Pa. Super. 2000)).

In relevant part, Harris argues that the Commonwealth did not prove

that he acted with the requisite specific intent to commit a robbery. Harris

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2 there is only talk

about going into the house and a subsequent shooting; there is no talk

about an agreement to a robbery or the actual commission of a robbery or

claims that the testimony indicates that Harris possessed no specific intent

to commit a robbery. However, in the portion of the testimony relied upon

pertinent part, as follows:

I was walking around the neighborhood and I saw [Harris]. He told me to go with him. [Harris] said, we about to get money. I

s, but [Harris] was driving. Then [Harris] drove to the block where we went into the house, and [Harris] parked the car. Then [Harris] gave me a little gun while we were still in the car and he told me to put a hoody on too. Then we walked down to a house in the middle of the block and [Harris] knocked on the door. A little man answered the door, and [Harris] told me to grab him. [Harris] saw the other guy in the back and [Harris] went after him, and [the other guy] gave [Harris] a little tussle. Then the guy tried to run out the door, and [Harris] shot him down.

2 Although Harris claims that this testimony is from Marks, the testimony at trial regarding the conspiracy, or alleged lack thereof, that is referenced by Harris is from Huggins. See Brief for Harris at 9.

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Notes of Testimony -74. When

asked if this was an accurate description of the events that transpired,

Id.

robbery seems much more like wishful interpretation than an objective

reading of the transcript in question.

on of events clearly indicates

that Harris manifested a clear intent to commit robbery. According to the

obtaining money from an undisclosed source. After Huggins agreed to aid

Harris, he provided Huggins with a weapon and a disguise. Harris and

Huggins then forced their way inside of the home of the Decedent and

upon forcibly entering the house. See Notes of Testimony

possessed the specific intent to commit robbery, specifically in his

statements and actions that demonstrate the intent to obtain money through

the use of force. See N.T. Trial II at 74-

attempted to flee rather than comply with Har See N.T. Trial I

at 88-91; N.T. Trial II at 74-75. Harris, in turn, shot and killed the

Decedent. Id.

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This testimony, viewed in the light most favorable to the

Commonwealth as verdict-winner, is sufficient to establish that Harris

committed robbery. Specifically, Harris, with the aid of Huggins, forcibly

entered the home of Upshaw and the Decedent and threatened them with

guns while demanding money. As our precedents indicate, the visible

brandishing of a firearm is sufficient to establish that the victims were put in

Alford,

supra

formulated a plan prior to arriving at the home of Upshaw and the Decedent.

for felony murder, see 18 Pa.C.S. §§ 2502(b), (d), is without merit.

In his second claim, Harris challenges the weight of the evidence. In

reviewing whether the trial court erred in ruling that the verdict was not

exercise of discretion, not the underlying question whether the verdict is

Commonwealth v. Smith, 985 A.2d

886, 897 (Pa. 2009) (quoting Commonwealth v. Diggs, 949 A.2d 873, 879

(Pa. 2008)). The jury is free to believe all, part, or none of the evidence,

and an appellate court will not make its own assessment of the credibility of

the evidence. Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011).

verdict is so

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Id. (quoting

Diggs, 949 A.2d at 879-

refusal to do so when we find that it reflected an abuse of discretion for the

trial court not to conclude that the verdict was so contrary to the evidence

Harris has recited the proper standard of review for a challenge to the

weight of the evidence. Harris has even offered an on-point citation to this

Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super.

2003), elucidating the distinction between challenges to the weight of the

evidence and challenges to the sufficiency of the evidence:

The distinction between a claim challenging the sufficiency of evidence and a claim challenging the weight of evidence is critical. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but claims that are so clearly of greater weight that to ignore them or to give them equal weight Id. at 751-52 (internal citations omitted). A claim challenging the sufficiency of the evidence, however, asserts that there is insufficient evidence to support at least one material element of the crime for which [an appellant] has been convicted. Id.

Lyons, 833 A.2d at 258 (emphasis added); see Brief for Harris at 11.

s substantive

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discussion regarding his challenge to the weight of the evidence continues

to press an argument that regards the sufficiency of the evidence:

The Commonwealth came forward with no evidence that this was a [r]obbery. Thus, if one wants to assume that the jury found a robbery basing its decision no speculation, conjecture and surmise, to wit, why were [Harris and Huggins] there? that [sic] would be improper and not that basis for a verdict, or at least, it would not be the basis for claiming that the greater weight of the evidence supported the verdict.

Brief for Harris at 11.

Although styling his second claim as a challenge to the weight of the

evidence, Harris continues to argue that the Commonwealth failed to adduce

sufficient evidence to establish that Harris committed a robbery. Such a

claim properly is construed as a challenge to the sufficiency of the evidence.

See Lyons, supra. To the extent that Harris relies upon a challenge to the

weight of the evidence, and to the extent that he preserved that challenge in

a post-sentence motion,3 the trial court aptly addressed the issue in its Rule

1925(a) opinion:

In the instant case, as previously stated, the Commonwealth

The evidence showed that [Harris] and [Huggins] conspired to rob the [D]ecedent. Thomas Upshaw positively identified [Harris] as the person he saw enter the house uninvited and tussle with the [D]ecedent. [Upshaw] saw the [D]ecedent break

3 Pa.R.Crim.P. 607(A) provides that an appellant wishing to assert a challenge to the weight of the evidence must raise the issue with the trial court in an oral or written motion prior to sentencing, or in an post- sentencing motion. See Pa.R.Crim.P. 607(A)(1)-(3).

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gunshots following his seeing [Harris] running after the entification of

testimony, the verdict was not against the weight of the evidence.

T.C.O. at 13-

Furthermore, nothing in our review of

abused its discretion by allowing the Commonwealth to present, through the

testimony of Detective Nathan Williams, portions of a letter . . . found by

police when executing a search warrant on a

14. Specifically, the letter in question was written by Harris and contained

referred

Id. at 16-17. Harris argues

it should have been excluded from trial. Harris has waived this claim.

Our standard of review in this context is well-settled.

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. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.

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Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(citation omitted).

Harris has properly preserved this issue for our consideration. The

Pennsylvania Rules of Evidence state the following with regard to preserving

challenges to the admission evidence before the trial court:

Rule 103. Rulings on Evidence.

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:

(1) if the ruling admits evidence, a party, on the record:

(A) makes a timely objection, motion to strike, or motion in limine, and

(B) states the specific ground, unless it was apparent from the context

Pa.R.E. 103. This Court has further explained this requirement, as follows:

Commonwealth v. Montalvo, 641 A.2d 1176, 1185 (Pa. Super. 1994) (citation

the offer is made, assigning grounds, is a waiver upon appeal of

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Commonwealth v. Bullock, 518 A.2d 824, 826 (Pa. Super. 1986), alloc. denied, 531 A.2d 427 (Pa. 1987).

Commonwealth v. Griffin, 684 A.2d 589, 595 (Pa. Super. 1996).

Instantly, the letter in question was admitted into evidence on

See

Notes of Testimony -130.

Griffin, supra; see

Pa.R.E. 103(a)(1)(A)-(B).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/23/2014

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