J.S26044/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
SHARIF MYRICK, :
:
Appellant : No. 1633 EDA 2011
Appeal from the Judgment of Sentence May 16, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0002987-2010
BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 20, 2015
Appellant, Sharif Myrick, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his jury
convictions for murder in the first degree and carrying a firearm in public.1
He argues: (1) the evidence was both insufficient and weak to establish he
was the person who shot Decedent; and (2) the Commonwealth, in its
closing argument, improperly vouched for the credibility of a witness and
expressed a personal opinion of Appellant’s guilt. We affirm.
The victim in this matter is Shariff Jenkins (“Decedent”). The trial
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(a), 6108.
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court summarized the trial evidence as follows:
On June 22, 2009, after having spent the day together,
Decedent . . . and his friend, John Mincer, ended up in the
evening in the courtyard of Morton Homes located at
Morton and Rittenhouse Streets, Philadelphia, PA. Mincer
was sitting on a wall near the courtyard when he observed
Decedent and Appellant engage in an argument. Mincer
also heard gunshots being fired. Katrina Jenkins,
Decedent’s mother, testified that Mincer told her that prior
to the shooting[,] Appellant and Decedent had played a
number of dice games which Decedent had won and
shared his winnings with Appellant. However, when the
last game was won by Decedent[,] he refused to share the
money and an argument ensued. [Jenkins further testified
that Mincer told her] Decedent and Appellant separated,
but Appellant returned with a gun and shot the
Decedent.
Trial Ct. Op., 7/11/13, at 1-2 (unpaginated) (citations to trial transcripts
omitted) (emphasis added). The medical examiner testified that Decedent
suffered gunshot wounds to the back, right knee, and right forearm.
Appellant was charged with shooting and killing Decedent. A four-day
jury trial commenced on May 11, 2011. On May 16th, the jury found him
guilty of murder in the first degree and carrying a firearm in public in
Philadelphia. That same day, the trial court imposed a sentence of life
imprisonment and a consecutive 2½ to 5 years’ imprisonment. Appellant did
not file a post-sentence motion, but took this appeal.2
2
Appellant’s trial counsel, James Bruno, Esq., filed a timely notice of appeal
on June 15, 2011, but failed to file a court-ordered Pa.R.A.P. 1925(b)
statement. On January 27, 2012, this Court dismissed the appeal for
counsel’s failure to file a brief. Attorney Bruno filed an application for
reconsideration, upon which this Court reinstated the appeal on March 7,
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Appellant first claims on appeal he is entitled to an arrest of judgment
for his first-degree murder conviction. Specifically, he avers the
Commonwealth presented both insufficient and “weak and conclusive [sic]
evidence” that he was the person who shot and killed Decedent. Appellant’s
Brief at 9, 11. In support, Appellant avers that neither witness Sakeena
Harris nor Cherelle Jeffries said she saw him at the crime scene. Instead,
Appellant claims, their testimony gave “rise to the inference that detectives
wrote things in the statements presented that were not there when the two
were interviewed.” Id. at 10. Appellant also asserts the Commonwealth’s
“star witness,” John Mincer, “gave several versions of what allegedly
occurred[:]” Mincer “first told police he saw nothing,” “then told detectives .
. . [A]ppellant and [D]ecedent were together and appeared to be arguing,”
and then told police at the next interview that he could not see who was
firing shots. Id. Appellant further reasons that although there was evidence
he was standing next to Decedent just prior to the shooting, “the medical
2012. On June 27, 2012, this Court ordered Attorney Bruno to file a brief by
July 23rd. In the interim, Appellant filed a pro se petition to withdraw his
counsel. On August 6th, this Court granted Appellant’s pro se petition,
dismissed Attorney Bruno, and directed the trial court to appoint new
counsel.
Subsequently-appointed counsel, Sondra R. Rodrigues, Esq., then filed
an application for relief with this Court, arguing any appellate brief would be
moot due to prior counsel’s failure to preserve any issue in a 1925(b)
statement. In response, on January 15, 2013, this Court remanded to the
trial court to allow counsel to file a 1925(b) statement. The statement was
filed, and we may now dispose of this appeal. Attorney Rodrigues continues
to represent Appellant in this appeal.
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examiner testified that the shots were [fired] most likely from a distance.”
Id. at 11. We find no relief is due.
This Court has stated:
In reviewing sufficiency of evidence claims, we must
determine whether the evidence admitted at trial, as well
as all reasonable inferences drawn therefrom, when
viewed in the light most favorable to the verdict winner,
are sufficient to support all the elements of the offense.
Additionally, to sustain a conviction, the facts and
circumstances which the Commonwealth must prove, must
be such that every essential element of the crime is
established beyond a reasonable doubt. Admittedly, guilt
must be based on facts and conditions proved, and not on
suspicion or surmise. . . . 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 fact finder is free to believe
all, part, or none of the evidence presented at trial.
Commonwealth v. Hogentogler, 53 A.3d 866, 874-75 (Pa. Super. 2012)
(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013). Moreover,
[i]n assessing the sufficiency of the evidence to establish
that a homicide was committed and that the person or
persons charged were those responsible, we are called
upon to consider all of the testimony that was presented to
the jury during the trial, without consideration as to the
admissibility of that evidence. The question of sufficiency
is not assessed upon a diminished record.
Commonwealth v. Smith, 568 A.2d 600, 602-03 (Pa. 1989); accord
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
To establish first-degree murder, the Commonwealth must prove: “(1)
a human being was unlawfully killed; (2) the person accused is responsible
for the killing; and (3) the accused acted with specific intent to kill. 18
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Pa.C.S.A. § 2502(a), (d)[.]” Commonwealth v. Bedford, 50 A.3d 707,
711 (Pa. Super. 2012) (en banc) (some citations omitted). Instantly,
Appellant challenges only the evidence as to whether he was responsible for
the killing.
Appellant correctly summarizes that Mincer, who testified as a
Commonwealth witness, gave inconsistent statements. We note that Mincer
repeatedly stated that throughout this case, he did not want to be a
witness.3 N.T. Trial, 5/12/11, at 51, 52-53, 63-66. At trial, Mincer stated
that just before the shooting, he saw Appellant and Decedent having an
“[u]nfriendly” conversation or argument. Id. at 46-47. When asked who
fired the shots, Mincer testified, “I’m not too sure.” Id. at 40
(emphasis added).
The Commonwealth confronted Mincer with the statement he gave on
the night of the incident at the police station. Id. at 48-49. In that
statement, Mincer told police he “didn’t see nothing” and did not “know
nothing.” Id.
The Commonwealth then introduced a second statement to police,
made on July 28, 2009, approximately five weeks after the incident. In this
interview, Mincer stated that at the time of the shooting, he had known
Appellant for a month and that he saw Appellant fire the gun. At trial,
3
Mincer also testified that he did not appear on his own volition, but instead
was arrested because he did not want to testify. N.T., 5/12/11, at 65.
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the Commonwealth questioned Mincer about this statement as follows:
[Commonwealth:] And you answered that way because
you saw [Appellant] do it?
[Mincer:] No, because I knew they were talking.
* * *
Q. But you see that you said in answering that
question, “When you heard the first shot, were you able to
see who was firing the gun?”
Your answer was, “Yes, it was [Appellant].”
A. Yes.
* * *
Q. And you’re saying now that’s not correct, you didn’t
see that?
A. No, I said it.
Q. You said it because you saw it?
A. Yes.
Id. at 57-58 (emphases added).
On cross-examination,4 defense counsel twice asked Mincer if he saw
Appellant shoot the gun, and Mincer replied, “No.” Id. at 93. Mincer also
4
In his questioning on cross-examination, Appellant’s counsel also made it
known to the jury that Decedent had twenty-three packets of cocaine on his
person when he was shot. N.T., 5/12/11, at 72. Counsel then asked Mincer
if there was drug dealing in addition to gambling in that area, and Mincer
replied, “I guess so.” Id. Nevertheless, Mincer testified he did not know
Decedent had those drugs on him and never saw Decedent selling drugs.
Id.
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stated he was lying when he previously told police he saw Appellant shoot
Decedent. Id. at 96.
Finally, we note the Commonwealth asked Mincer if, after trial had
commenced, he had a conversation with Decedent’s mother about the
shooting. Id. at 99. Mincer denied such a conversation.
We next review the testimony of Decedent’s mother, Katrina Jenkins,
which the trial court cited in its opinion. Jenkins testified that three days
earlier, and before Mincer testified at trial, she and Mincer had the following
conversation in a private room for witnesses in the courthouse.5 Mincer
talked about his friendship with Decedent and told Jenkins, “[I]f you want
me to testify I would.” N.T. at 114. Jenkins testified they had the following
exchange: “I told [Mincer] not to testify for me. I said, ‘You do what you
feel is right and you do it for the love and friendship you said you had with
5
Out of the jury’s presence, the parties argued about the admissibility of
this testimony. Id. at 106-09. Appellant’s counsel did not argue that
Jenkin’s testimony about Mincer’s statements would be hearsay, but instead
asserted, “[M]y main objection [is] what this witness . . . heard on the street
or what he’s assuming. . . . [W]e don’t know if it was something he
heard[.]” Id. at 108. The Commonwealth argued: (1) the testimony went
to Mincer’s credibility, where he had recanted his earlier statements; and (2)
the conversation would show what Mincer said when he was “relaxed” and
not speaking as “a witness.” Id. at 107-08. The court reasoned that
defense counsel had the opportunity to cross-examine Mincer, and Jenkins’
testimony would not be admitted for the truth of the matter, but would go to
Mincer’s credibility. Id. at 108-09. The court thus allowed the testimony
but advised Appellant’s counsel, “You have the right to object if the
testimony develops in terms of how the testimony develops [sic], but on the
fact of it at this point I will allow [the testimony.]” Id. at 110. Jenkins then
testified as we summarized above, without objection from Appellant.
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my son.’ [Mincer] told me, okay. And he would do it.” Id.
Jenkins testified that she then asked Mincer what happened that
evening. According to Jenkins:
[Mincer] said that my son [Decedent] had been drinking.
He was worried about getting locked up the next day
because it would violate his probation from the drugs in his
system. He told me that he had been drinking since 3
o’clock that afternoon up until that night.
He told me that [Decedent] and [Appellant] were
gambling. He said that my son [Decedent] was winning.
They gambled three times that night and each time my
son had beat [sic]. He said that each pot my son had won.
He gave [Appellant] a cut which is considered some money
of the winnings. He said the third time that they had
gambled and [Decedent] won, [Decedent] wouldn’t give
him a cut. He said it didn’t make sense because all he was
doing was winning back his own money. Words were
exchanged, [Decedent] was supposed to have pushed
[Appellant] and more words, both walked away. And he
said the next thing he know [sic] [Appellant] came
through a parking lot and started shooting.
Id. at 115-16 (emphasis added).
On cross examination, Appellant’s counsel asked Jenkins if Mincer “was
telling [her] what he had heard[ or] a combination of what he heard or saw.”
Id. at 117. Jenkins replied that she did not ask him and agreed that she did
not “know whether it is what [Mincer] saw or what he heard.” Id.
On appeal, Appellant cites Mincer’s statements that he either saw
nothing or did not see who fired the gun. However, Appellant disregards
Mincer’s July 28, 2009 statement to police that he saw Appellant shoot
Decedent. Crucially, Appellant also fails to acknowledge Jenkins’ testimony
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that Mincer told her Decedent exchanged words with and pushed Appellant,
after which Appellant left, but returned and started shooting. In light of this
evidence, we reject his claim that the evidence was insufficient to show he
was the shooter. See Hogentogler, 53 A.3d at 874-75; Smith, 568 A.2d
at 602-03. Accordingly, we further find Appellant’s arguments concerning
the testimony of Sakeena Harris and Cherelle Jeffries meritless.
To the extent Appellant challenges the weight of the evidence, see
Appellant’s Brief at 11 (stating conviction “arose from weak and conclusive
[sic] evidence”), we find such a claim waived for failure to raise it before the
trial court. See Pa.R.Crim.P. 607(A)(1)-(3); Commonwealth v. Griffin, 65
A.3d 932, 938 (Pa. Super. 2013).
Appellant’s second claim on appeal is that the Commonwealth
committed prosecutorial misconduct for making three inappropriate
comments in its closing argument. First, he avers the Commonwealth
improperly “vouched for the credibility of John Mincer, indicating that he had
always wanted to put the blame of the murder on” Appellant. Appellant’s
Brief at 13 (citing N.T., 5/16/11, at 40-42). Second, Appellant asserts the
Commonwealth stated facts not in evidence, specifically the number of shots
fired and why there not more. Id. (citing N.T., 5/16/11, at 41-46). Finally,
Appellant alleges the Commonwealth improperly expressed its opinion of his
“guilt by stating that he was not in his usual places, because he ‘knew what
he had done.’” Id. at 13 (citing N.T., 5/16/11, at 47). He contends these
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comments “created such prejudice there could be no objectivity” by the jury.
Id. at 12. We find these claims waived.
A t trial Appellant raised no objections to these comments, either
contemporaneously or at the end of the Commonwealth’s closing argument.
Accordingly, any appellate challenge is waived. See Commonwealth v.
Gilman, 368 A.2d 253, 256 (Pa. 1977) (stating: (1) defendant may waive
objection to improper closing argument by failing to raise it at trial; (2)
purpose of requiring objection is to bring error to trial court’s attention so
that court may attempt to cure it; and (3) if defendant raises objection to
impropriety of prosecutors summation in time for curative instructions, issue
is not waived); Commonwealth v. Rose, 960 A.2d 149, 154 (Pa. Super.
2008) (stating challenge to comment in Commonwealth’s closing argument
was not waived where defendant waited until end of closing argument to
object with sufficient specificity and request mistrial).
Finding no basis for relief, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
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Com. v. Myrick, S.
Combined Opinion