J-S19025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
YASHEAM WASHINGTON
Appellant No. 1062 MDA 2013
Appeal from the Judgment of Sentence May 16, 2013
In the Court of Common Pleas of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001515-2012
BEFORE: PANELLA, OLSON and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 26, 2014
Appellant, Yasheam Washington, appeals from the judgment of
sentence entered on May 16, 2013, following his jury trial conviction for
possessing a weapon or implement for escape, 18 Pa.C.S.A. § 5122(a)(2).
We affirm.
We summarize the facts and procedural history of this case as follows.
Appellant is an inmate at the State Correctional Institute at Mahanoy. On
May 27, 2012, corrections officers were searching individual prison cells
when they witnessed Appellant flush an unknown object down the toilet.
Appellant was the only occupant in the cell at the time. The officers
observed an object, which looked like white cloth, in the bottom of the toilet
bowl. While officers went to obtain a tool to retrieve the item from the
toilet, Appellant reentered his cell and flushed the toilet again. Corrections
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officers restrained Appellant. They then removed the toilet from the floor
and recovered from the sewer line a metal rod approximately six inches
long, with cloth wrapped around one end. The unwrapped end of the metal
rod was sharpened to a point. Appellant admitted to the officers that the
device belonged to him.
On June 13, 2012, the Commonwealth charged Appellant with
possessing a weapon or implement for escape. A jury convicted Appellant of
the crime on April 29, 2013. On May 16, 2013, the trial court sentenced
Appellant to 21 to 42 months of imprisonment, consecutive to the six to 14
year sentence that he was serving at the time of the incident.
On May 29, 2013, Appellant filed a pro se motion to modify or reduce
his sentence, despite being represented by counsel. The trial court,
however, did not rule on the motion before Appellant filed a pro se notice of
appeal to this Court on June 7, 2013. This Court entered an order on June
24, 2013, directing the trial court to conduct a hearing to determine whether
Appellant wished to proceed pro se or have counsel appointed to represent
him on direct appeal. The trial court held a hearing wherein Appellant
requested appellate counsel. Trial counsel for Appellant was also present
for the hearing. On July 16, 2013, the trial court entered an order
pro
se appellate claims was that the trial court committed an error of law by
encouraging Appellant to listen to his attorney and not take the stand in his
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Appellant on appeal to this Court.
On June 11, 2013, during the intervening period between the filing of
pro se notice of appeal and the order of this Court directing the
trial court to conduct a hearing pursuant to Grazier,1 the trial court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant complied pro se on July 3, 2013.
On July 30, 2013, the trial court issued an opinion pursuant to Pa.R.A.P.
pro se Rule 1925(b)
pro se
1925(b) statement despite Appellant being represented by counsel, we were
constrained to remand the matter to have the trial court direct appointed
counsel to file a counseled Rule 1925(b) statement.
statement and the trial court reaffirmed its Rule 1925(a) opinion filed July
30, 2013. Appellant now appeals and raises the following issues:
1. Whether the trial court committed an error of law by
refusing to allow the statements of certain witnesses to
be in the possession of the jury during their
deliberations.
____________________________________________
1
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (When a waiver of
the right to counsel is sought at the post-conviction and appellate stages, an
on-the-record determination should be made that the waiver is a knowing,
intelligent, and voluntary one.).
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2. Whether the trial court committed an error of law in
encouraging Appellant not to testify at his trial.
3. Whether the trial court committed an error of law in its
instruction to the jury regarding the crime of weapons
or implements for escape, 18 Pa.C.S.A. §5122(a)(2).
2
Further, we allowed Appellant to file a supplemental brief to this Court,
wherein Appellant raises an additional issue for our review:
4. Whether there was sufficient evidence as a matter of law
to convict [Appellant] of the crime of weapons or
implements for escape, in that the Commonwealth could
not prove that the weapon discovered in the plumbing
system at SCI [Mahanoy] actually belonged to
[Appellant?]
upplemental Brief, at 4 (superfluous capitalization omitted).
In his first issue presented, Appellant asserts that the trial court erred
possession during their deliberations. Appellant failed to raise this issue in
his counseled Rule 1925(b) statement and, thus, it is waived. See
Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013) (claim not
appellate brief, was waived).
pro se
____________________________________________
2
We have re-numbered the issues for ease of disposition.
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filing, we note that Appellant raised the issue in his pro se 1925(b)
statement and the trial court addressed it in its July 30, 2013 Rule 1925(a)
opinion. Appellant argued that the trial court erred by not sending five
written defense documents, entered into evidence at trial, out with the jury
-9. The trial court relied upon
should be allowed to go out with the jury during its deliberation is within the
Commonwealth v. Barnett, 50 A.3d
excluding certain items from the jury's deliberations is to prevent placing
undue emphasis or credibility on the material, and de-emphasizing or
Id. Here, the trial
court determined that the five written statements submitted by the defense
the jury never requested the documents for review. Although Appellant
waived the issue, we hold, in the alternative, that the trial court did not
In his second issue presented for our review, Appellant contends that
the trial court committed an error of law by discouraging him from testifying
-8. Appellant claims that
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trial counsel advised him not to testify, but Appellant initially indicated that
he wanted to testify. Id. at 7. Ultimately, however, he did not testify. Id.
Appellant argues:
After Appellant initially informed the [t]rial [c]ourt that he
wished to testify, the [c]ourt referred to such a decision as
ed
decision regarding whether to testify. The remedy for this
violation is to order a new trial, wherein Appellant would
have the right to testify on his own behalf.
Id. at 7-8. Moreover, Appellant claims it was error for the trial court to tell
Appellan
jury might also want to hear from him to see what his side of the story
Id. at 8.
of an accused to testify on his own behalf is a fundamental
tenet of American jurisprudence and is explicitly guaranteed by Article I,
Commonwealth v. Baldwin,
8 A.3d 901, 902-903 (Pa. Super. 2010) (citation omitted); see also U.S.
Const. Amend. VI (guaranteeing the right of an accused to testify on his own
behalf). In addressing the right to testify on one's own behalf, the United
States Supreme Court has held:
The right to testify on one's own behalf at a criminal trial
has sources in several provisions of the Constitution. It is
Fourteenth Amendment's guarantee that no one shall be
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deprived of liberty without due process of law include a right
to be heard and to offer testimony:
A person's right to reasonable notice of a charge
against him, and an opportunity to be heard in his
defense-a right to his day in court-are basic in our
system of jurisprudence; and these rights include, as
a minimum, a right to examine the witnesses against
him, to offer testimony, and to be represented by
counsel.
Rock v. Arkansas, 483 U.S. 44, 51 (1987). Additionally,
we note that the decision to testify on one's own behalf is
ultimately a decision to be made by the accused after
consultation with counsel.
Baldwin, 8 A.3d at 903 (citation omitted).
Our review of the certified record, however, does not substantiate
ly shows that the trial court did not
discourage Appellant in any way from testifying. The trial court said to
testify on his
Id. at 96. The trial court then
asked Appellant if he understood that it was his own choice as to whether or
not to testify, to which Appellant responded that he did, in fact, understand.
Id. at 96. The trial court heard some defense testimony and asked
Appellant, again, whether he wanted to testify. Id. at 102-103. At that
time, Appellant stated that he still wished to testify, but then he ultimately
did not take the witness stand. Id. at 103-104.
At all times, the trial court properly informed Appellant regarding his
right to testify. Appellant consulted with counsel who recommended against
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it. In the end, Appellant freely chose not to testify. Moreover, we discern
no error by the trial court in telling Appellant that the jury would follow its
no adverse inference instruction. The law presumes that the jury will follow
the court's instructions. See Commonwealth v. Arrington, 86 A.3d 831,
claim is without merit.
In his third issue, Appellant claims that the trial court improperly
instructed the jury on the charge of weapons or implements for escape.
Commonwealth must prove that the weapon must be capable of being used
-
disagreed, indicating that the Commonwealth need only prove that the
Id. at 9. Thus, Appellant argues that the
standard jury instruction was erroneous. Id.
instructions is one of deference
decision only when it abused its discretion or co
Commonwealth v. Baker, 24 A.3d 1006, 1002 (Pa. Super. 2011) (citations
omitted). Further, this court has said:
When evaluating jury instructions, the charge must be
read as a whole to determine whether it was fair or
prejudicial. The trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long
as the law is clearly, adequately, and accurately presented
to the jury for its consideration.
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Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990) (internal
citations omitted). The law presumes that the jury will follow the court's
instructions. Arrington, 86 A.3d at 853.
Appellant was charged with weapons or implements for escape
pursuant to 18 Pa.C.S.A. §5122, which provides, in pertinent part:
(a) Offenses defined.--
* * *
(2) An inmate commits a misdemeanor of the first degree if
he unlawfully procures, makes or otherwise provides himself
with, or unlawfully has in his possession or under his
control, any weapon, tool, implement or other thing which
may be used for escape.
(b) Definitions.
* * *
implement readily capable of lethal use and shall include
any firearm, ammunition, knife, dagger, razor, other cutting
or stabbing implement or club, including any item which has
been modified or adopted so that it can be used as a
firearm, ammunition, knife, dagger, razor, other cutting or
unloaded firearm and the unassembled components of a
firearm.
18 Pa.C.S.A. § 5122.
Penal statutes are always to be construed strictly. 1 Pa.C.S.A.
§
ambiguity, the letter of it is not to be disregarded under the pretext of
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Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005) (citation
omitted). In reading the plain languag
construed according to rules of grammar and according to their common and
Here, the plain language of the statute clearly states that a weapon is
ossession or
Pa.C.S.A. § 5122(a) (emphasis added).
Here, the trial court instructed the jury:
Now, directing your attention to the specific charge,
[Appellant] has been charged with being an inmate having a
weapon or escape implement. To find [Appellant] guilty of
this offense, you must find that each of the following three
elements has been proven beyond a reasonable doubt:
First, that [Appellant] was an inmate at a correctional
inst
regards to that. He is a prisoner or was a prisoner on that
date at SCI Mahanoy in Schuylkill County. And that is a
given.
Second, that [Appellant] procured, made or provided
to himself and/or had in his possession or under his control
a weapon or a tool, implement or some other thing that
may be used for escape. And third, that [Appellant] did so
unlawfully. Unlawfully means surreptitiously or contrary to
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law, regulation or order of the detaining authority; in this
case, State Correctional Institution at Mahanoy.
Third, that [Appellant] did so unlawfully. It means
surreptitiously or contrary to law or other detaining
authority, which I just mentioned. So those are three
factors: An inmate at a correctional institution; in this case,
possession or procured or made a weapon and/or a tool or
implement or other thing that may be used for escape. And
third, that he did so unlawfully; it was against regulations of
the SCI Mahanoy or contrary to law. And weapon includes
any knife or similar implement[.]
N.T., 4/9/2013, at 138-139.
In this case, a six-inch metal rod sharpened to a point is certainly
capable of lethal use, which, in turn, may have been used to escape. Upon
review, the trial court gave a standard jury instruction properly setting forth
the elements of the crime. We discern no abuse of discretion or error of law.
Finally, Appellant argues that there was insufficient evidence to convict
8-10. More specifically, he claims that the plumbing underneath the prison
s of any of those cells
could have been responsible for the shank that was recovered in the
Id. at 10.
Our standard of review for a challenge to the sufficiency of the
evidence is well-settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
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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 regarding a defendant's guilt may
be resolved by the fact-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
finder 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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citation
omitted).
Here, Appellant only challenges his possession of the weapon found.
Upon review of the record, in the light most favorable to the Commonwealth,
possession. Corrections Officer Aaron Schultz, testified that, while looking
through a ce
remained on the top bunk the entire time. Id. at 35. After both men were
Id. at 37. Appellant, who was
in the hallway outside the cell, came back into the cell without permission
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and flushed the toilet a second time. Id. at 39. When the corrections
officers had the toilet removed and extracted a metal wire with cloth
wrapped around it from the plumbing, Appellant voluntarily claimed
ownership. Id. at 50. Such evidence was sufficient to show Appellant was
without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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