Com. v. Smith, J.

• Court: Superior Court of Pennsylvania
• Decided: April 1, 2025
• Docket: 3224 EDA 2023
• Status: Unpublished

Opinion

J-S43027-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMIL SMITH : : Appellant : No. 3224 EDA 2023

Appeal from the Judgment of Sentence Entered October 6, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0005731-2021

BEFORE: BOWES, J., STABILE, J., and KUNSELMAN, J.

MEMORANDUM BY STABILE, J.: FILED APRIL 1, 2025

Appellant, Jamil Smith, appeals the judgment of sentence entered by

the Court of Common Pleas of Philadelphia County (trial court). In 2021, the

decedent, Robert Oquendo, was the victim of a fatal hit-and-run accident.

Appellant was the registered owner of the vehicle that struck the decedent.

At the subsequent jury trial, Appellant proceeded pro se, and he was found

guilty of accidents involving death or personal injury; homicide by vehicle;

and tampering with physical evidence. He was sentenced to an aggregate

prison term of eight to 16 years. On appeal, Appellant argues that the verdict

was against the weight of the evidence because his identity as the driver had

not been proven; the evidence of his guilt was legally insufficient; and the trial

court failed to instruct the jury that it could find the decedent’s own conduct

was the cause of his death. We affirm. J-S43027-24

On March 3, 2021, at about 11:06 p.m., the decedent was struck by a

blue 2003 GMC Yukon sports utility vehicle (the SUV) in the center of the

crosswalk at Second and Ontario Streets in Philadelphia, PA. The incident was

recorded by nearby video surveillance cameras.

The video footage showed that the walk signal posted at the intersection

had turned off before the decedent had reached the end of the crosswalk. As

a result, an oncoming vehicle, the SUV, had a green light at the time the

decedent was still in the road. The SUV struck the decedent while exceeding

the posted speed limit, dragging the decedent for about 200 feet until he fell

beneath the vehicle. The driver of the vehicle did not stop to render aid.

Less than 10 minutes after that incident, Appellant arrived at the Rivers

Casino, which was about 20 blocks away from where the decedent was struck

by the SUV. Appellant told a security guard at the casino that he thought he

was just involved in a hit-and-run accident, and that he may have killed

someone.

Later, at about 1:42 a.m. that same night, Appellant was seen cleaning

the outside of the SUV’s hood. After briefly returning to the casino, Appellant

left again at about 2:35 a.m. A second security guard noticed that the SUV

had damage on the front bumper and the driver’s side headlight. Appellant

did not retrieve the SUV from the casino parking area, and it was towed from

the premises. The SUV soon arrived at a scrapyard, whose owner contacted

the police after noticing blood on the front of it. Police then recovered the

vehicle and found that it was registered in Appellant’s name.

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The decedent had succumbed to his injuries by the time first responders

had arrived to treat him at the scene of the accident. He died from sustaining

numerous blunt impact injuries. The toxicology report for the decedent

showed that he had trace amounts of cocaine and alcohol in his system at the

time of his death. The decedent tested positive 180 micrograms per liter of

cocaine; 820 micrograms per liter of benzoylecgonine (a metabolic of

cocaine); and a blood alcohol content of 0.063%, which was well below the

legal limit for operating a motor vehicle. The medical examiner opined that

the presence of these substances in the decedent’s bloodstream had nothing

to do with the cause of his death.

Appellant turned himself in at a police station on March 10, 2021. He

was charged with several offenses related to the decedent’s traffic accident,

and at trial, Appellant opted to represent himself. At the conclusion of the

trial, Appellant was found guilty as charged. He was sentenced to consecutive

prison terms of five to 10 years on the count of accidents involving death or

personal injury; a term of two to four years on the count of homicide by

vehicle; and one to two years on the count of tampering with physical

evidence. The aggregate term totaled eight to 16 years.

Appellant retained counsel prior to sentencing, and with the aid of

counsel, he filed a post-sentence motion, which the trial court denied.

Appellant then timely appealed, and both he and the trial court complied with

Pa.R.A.P. 1925. See Trial Court 1925(a) Opinion, 2/12/204, at 3-10. In his

brief, Appellant now raises three issues:

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1. Did the trial [court] err as a matter of law in providing jury instructions as to accidents involving death or personal injury, homicide by vehicle, and tampering with physical evidence?

2. Did the trial [court] err as a matter of law by not providing a jury instruction of bystander contribution?

3. Did the trial [court] err as a matter of law by upholding the jury's verdicts which were against the weight and sufficiency of the evidence?

Appellant’s Brief, at 7.

Appellant’s first claim is that the trial court erred in instructing the jury

on the elements of the charged offenses. He appears to be arguing that no

instructions at all were warranted because the Commonwealth had not

produced any evidence that Appellant was the driver of the vehicle that fatally

collided with the decedent. See Appellant’s Brief, at 11.

While ostensibly challenging the instructions, the logical implication of

Appellant’s first claim is that the evidence was legally insufficient, eliminating

the need for the jury to receive any instructions at all. The sufficiency of the

evidence has been challenged in Appellant’s third claim, which we will address

separately below. To the extent that Appellant has intended to challenge the

jury instructions given by the trial court, the claim is waived and we cannot

consider its underlying merit.

In order to preserve a challenge to a jury instruction for the purposes of

appeal, the defendant must object to the proposed instructions prior to the

jury’s deliberations. See Commonwealth v. Pressley, 887 A.2d 220, 224

(Pa. 2005); Commonwealth v. Smith, 206 A.3d 551, 564 (Pa. Super. 2019).

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The failure to place a timely, specific, objection on the record results in a

waiver of the issue for lack of preservation. See Smith, 206 A.3d at 564

(citing Pa.R.A.P. 302(a)).

Here, Appellant did not object to any of the proposed jury instructions

prior to deliberations. At the charge conference, Appellant, proceeding pro

se, vaguely requested the trial court to instruct the jury on the elements of

every offense that the Commonwealth had the burden of proving. See N.T.

Trial, 6/14/2023, at 46. He has now raised the issue of improper jury

instructions for the first time on appeal. As such, the issue is waived and its

merits cannot be considered at this juncture. See Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

Appellant’s second claim is that the trial court erred in declining to

instruct the jury on “bystander contribution,” advising that the decedent’s own

intoxication and negligent conduct was a ground on which Appellant could be

acquitted. See Appellant’s Brief, at 12. This second claim is deficient for

much the same reason as the first. In order to raise this issue on appeal, it

was necessary for Appellant to have specifically objected to the proposed

instructions prior to jury deliberations. Appellant failed to do so, precluding

him from raising the issue on appeal for the first time. See id.1

____________________________________________

1 Appellant argues that the jury should have been instructed that Appellant’s

conduct was not a direct cause of the decedent’s death because the decedent’s (Footnote Continued Next Page)

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Regardless, there appears to be little to no underlying merit to

Appellant’s claim. The trial court instructed the jury that it could consider the

decedent’s conduct when entering its verdict on the counts of accidents

involving death or personal injury, and homicide by vehicle. As the trial court

noted in its opinion, the jury was properly instructed that, for the counts of

accidents involving death or personal injury, and homicide by vehicle, it had

to consider “all of the factors and circumstances, including the nature and

intend of the defendant’s conduct, and the circumstances known to him.” Trial

Court 1925(a) Opinion, 2/12/2024, at 5-6. They jury also was instructed to

consider whether Appellant’s driving was a “direct cause of the death,” and

that the decedent “died as a result of the accident.” Id., at 6; see also N.T.

Trial, 6/14/2023, at 24-36, 90-94. Thus, the issue was waived, and in any

event, the jury, in substance, ultimately received the instruction Appellant

now claims was not given.2

own actions played an independent and overriding role in bringing about the death, compared to the role played by Appellant, whose conduct did not amount to a direct and substantial factor. See Appellant’s Brief, at 12. Appellant cites the Pennsylvania Suggested Standard Criminal Jury Instructions 15.2501(C)(3) (4th ed.).

2 It would have been improper for the trial court to further instruct the jury to

acquit Appellant if the decedent were found to be contributorily negligent. As the Commonwealth correctly notes in its brief, contributory negligence is not a viable defense to the crime of vehicular homicide where the defendant’s conduct “was a direct and substantial factor in causing the accident.” See Appellee’s Brief, at 10 (quoting Commonwealth v. Nicotra, 625 A.2d 1259, 1264 (Pa. Super. 1993)). Appellant did not argue at trial, and does not argue on appeal, that his own conduct was not a direct and substantial factor in causing the accident.

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Appellant’s third and final claim must be divided into two distinct issues;

first, Appellant contends that the evidence was legally insufficient as to all

three offenses for which he was found guilty, and second, Appellant contends

that the trial court abused its discretion in denying his post-sentence motion

for a new trial in which he raised his weight of evidence claim. See Appellant’s

Brief, at 12-15.

It is not apparent from Appellant’s 1925(b) statement that he has

adequately preserved a sufficiency claim for our review. He only stated that

the trial court erred in allowing the convictions to stand because they “were

against the weight and sufficiency of the evidence.” Appellant’s 1925(b)

Statement of Matters Complained of on Appeal, 1/8/2024, at para. 1.

To preserve a sufficiency claim, the appellant must specify which

element or elements were not proven beyond a reasonable doubt. See

Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (pa. Super. 2020). “Any

issue not raised in a Rule 1925(b) statement will be waived for appellate

review.” Id. Where the 1925(b) statement “does not specify the allegedly

unproven elements[,] . . . the sufficiency issue is waived [on appeal].”

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (quoting

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)).

Accordingly, Appellant’s blanket challenge to the sufficiency of his convictions

does not adequately preserve the issue for appellate review, resulting in the

waiver of the claim.

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Even if we were to surmise that Appellant intended to challenge the

identity element of each offense, and argue only that the evidence was

insufficient to establish that he was the driver of the vehicle that struck the

decedent, it would not be availing. The Commonwealth presented evidence

that the vehicle which struck the decedent was registered in Appellant’s name.

Multiple witnesses testified that Appellant admitted to being involved in a hit-

and-run accident on the night the of the decedent’s death. Even though there

were no eyewitnesses to the accident, there was sufficient evidence from

which the jury could determine that Appellant was the driver of the subject

vehicle. Thus, the evidence of guilt was legally sufficient.

Finally, with respect to Appellant’s weight of the evidence claim, we

again find that no relief is due. In his post-sentence motion for a new trial,

Appellant argued that the evidence was contrary to the weight of the evidence.

He maintained that the evidence did not prove his identity as the driver of the

SUV that struck the decedent.

When a motion for a new trial has been filed, the role of the trial court

is to “determine that ‘notwithstanding all the facts, certain facts are so clearly

of greater weight that to ignore them or given them equal weight with all the

facts is to deny justice.’” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.

2013) (quoting Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000)).

“[A] new trial should be awarded when the jury’s verdict is so contrary to the

evidence as to shock one’s sense of justice and the award of a new trial is

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imperative so that right may be given another opportunity to prevail.” Id.

(quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994)).

On review of a trial court’s denial of a weight of the evidence claim, the

appellate court must consider not “the underlying question of whether the

verdict is against the weight of the evidence,” but rather whether the trial

court abused its discretion. Id. (quoting Widmer, 744 A.2d at 753). “One

of the least assailable reasons for granting or denying a new trial is the lower

court’s conviction that the verdict was or was not against the weight of the

evidence and that a new trial should be granted in the interest of justice.” Id.

(quoting Widmer, 744 A.2d at 753)). An abuse of discretion in this context

means “where the course pursued [by the trial court] represents not merely

an error in judgment, but where the judgment is manifestly unreasonable or

where the law is not applied or where the record shows the action is a result

of partiality, prejudice, bias or ill-will.” Id. (quoting Widmer, 744 A.2d at

753).

Here, Appellant stresses that there were no eyewitnesses to the

accident, suggesting that the jury should have been able to consider that the

decedent’s own intoxication and negligence were the main cause of his death.

See Appellant’s Brief, at 14-15.

We find that the trial court did not abuse its discretion in denying

Appellant’s weight of evidence claim. Two witnesses testified that Appellant

had admitted to being in a hit-and-run accident on the night the decedent was

killed. The vehicle which struck the decedent was registered in Appellant’s

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name. A medical examiner testified that the controlled substances and alcohol

found in the decedent’s blood had played no part in causing his death.

On these facts, we cannot conclude that the trial court’s ruling was

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

There was ample evidence from which the jury could determine that Appellant

was the driver of the SUV that struck the decedent on the night in question.

The jury was free to credit the testimony of the Commonwealth’s witnesses,

and infer that Appellant drove the vehicle and admitted his role in striking the

decedent. Further, as discussed above, the instructions given to the jury were

adequate to apprise it that the decedent’s actions could be considered when

deciding the issue of Appellant’s guilt. Thus, Appellant’s weight of evidence

claim has no merit, and the judgment of sentence must be upheld.

Judgment of sentence affirmed.

Date: 4/1/2025

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