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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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.
-7 (footnotes, citations
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
Id.
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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