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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MILIQUE WAGNER
Appellant No. 1556 EDA 2013
Appeal from the Judgment of Sentence February 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000127-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 29, 2015
Milique Wagner appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after a jury found him guilty
of murder of the first degree,1 criminal conspiracy,2 and possessing an
instrument of a crime (PIC).3 After careful review, we affirm.
On the evening of February 11, 2010, Wagner, Kelvin Bryant, and
Amin Payne gathered at the apartment of Bryant’s mother, Debra Sumbler.
The three men had been friends for a few years. Sumbler’s boyfriend,
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502.
2
18 Pa.C.S. § 903(a).
3
18 Pa.C.S. § 907.
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James Herman Adams, was also present. Throughout the evening, Wagner
and Bryant openly carried firearms while Payne was “burning bags,” or
preparing drugs. At some point, Bryant received a phone call and
immediately left the apartment with Wagner; shortly thereafter, Payne
followed.
Payne testified that he witnessed Bryant and Wagner “talking to that
boy Bra [the decedent, Braheem King] down the street, so I started to walk
down Cecil B. Moore towards where they were standing. Then I saw Kelvin
and Milique just pull out on the boy and shoot him up.” N.T. Trial, 2/4/13,
at 269-70. The two shooters then ran, turning onto 26 th Street and up the
block. Payne ran back to Sumbler’s apartment to gather his belongings and
then ran home. Later that night, Bryant phoned Payne and told him that he
“hollered at another one,” meaning he killed another boy. Id. at 271.
At trial, Adams testified that, a few minutes after Wagner and Bryant
left Sumbler’s apartment, he heard about a dozen gunshots from his position
in his bedroom.
Philadelphia Police Officer Joseph Ewald testified that, at approximately
8:32 p.m., he and his partner received a radio report about a possible
shooting in the area of the 2500 block of Cecil B. Moore Avenue. After
arriving on the scene, a crowd directed the officers towards 26 th Street.
There, they discovered King lying face down in the snow with blood coming
from his upper torso area. Medics transported King to Hahnemann Hospital,
where he was pronounced dead at 9:09 p.m.
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Philadelphia Crime Scene Unit Officer Robert Flade testified, as an
expert witness, that at least two semi-automatic handguns were used in the
fatal shooting. Police recovered 29 pieces of ballistic evidence from the
scene, including two fired projectiles and 27 fired cartridge casings. Of the
29 gunshots fired, King was struck 11 times.
Philadelphia Police Officers Daniel Stevens and Justin Rios also
received a radio call that gunshots were fired in the area of 2500 Cecil B.
Moore Avenue. As they approached the area, they received additional
information that two black men wearing dark colored hoodies were seen
running southbound on 26th Street from Cecil B. Moore. Approximately
three blocks from the scene, Officer Stevens spotted Wagner and another
black male, both wearing hoodies. Officer Rios yelled, “Stop, police!”
Wagner put his hands up and stopped. Officer Stevens frisked and
handcuffed Wagner and asked him what he was doing. Wagner responded
that he was trying to buy marijuana; however, he had no money in his
possession. Wagner was transported to the Homicide Unit of the
Philadelphia Police Department for investigation, but was subsequently
released. A warrant was ultimately issued and Wagner was apprehended on
September 29, 2010.
On February 6, 2013, after a consolidated trial, Wagner was convicted
and sentenced to a mandatory life term for murder in the first degree, with
concurrent sentences of 5 to 10 years’ imprisonment for criminal conspiracy
and 1 to 5 years’ imprisonment for PIC. On February 11, 2013, Wagner filed
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post-sentence motions, which the trial court denied on May 21, 2013.
Wagner filed a timely notice of appeal on May 23, 2013.
On appeal, Wagner raises the following issues for our review:
1. Is [Wagner] entitled to a new trial as a result of the trial
court’s ruling that prohibited him from cross-examining
Commonwealth witness Amin Payne with regard to other
shootings that he was involved in?
2. Is [Wagner] entitled to a new trial as a result of the trial
court’s ruling that prohibited him from cross-examining
Detective Phillip Nordo, Detective Gary White, and Police Officer
William Golphin concerning the [Wagner’s] statement and other
interviews they conducted?
Appellant’s Brief, at 4.
Both of Wagner’s appellate issues challenge trial court rulings with
respect to cross-examination of witnesses. The scope of cross-examination
is within the discretion of the trial court and, absent an abuse of that
discretion, an appellate court will not disturb the trial judge’s rulings.
Commonwealth v. Pagan, 950 A.2d 270, 285 (Pa. 2008) (citation
omitted). “An abuse of discretion will not be found based on a mere error of
judgment, but rather exists where the court has reached a conclusion [that]
overrides or misapplies the law, or where the judgment exercised it
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013), quoting
Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007).
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Wagner first asserts that he is entitled to a new trial because he was
prohibited from cross-examining witness Payne. Wagner has failed to
preserve this issue and, as such, it is waived.
Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal. Pa.R.A.P. 302(a). Here, counsel for Wagner’s
co-defendants argued vigorously to the trial court that they be allowed to
question Payne about other shootings he allegedly committed, but was not
convicted of, in order to show common plan, motive and intent. The court
denied this request. However, at no time did Wagner’s counsel join in that
motion or argue to the trial court that he be permitted to examine Payne on
the issue. Where an objection or motion is raised before the trial court by
co-defendants, but not by the appellant himself, the appellant waives the
issue on appeal. Commonwealth v. Woods, 418 A.2d 1346, 1352 (Pa.
Super. 1980); see also Commonwealth v. C.M.K., 932 A.2d 111, 113 (Pa.
Super. 2007) (“Appellants were individually represented at trial; accordingly,
the issue may have been preserved at trial by one defendant’s counsel and
not the other’s.”). Because Wagner himself did not preserve the issue, he
has waived it.
Next, Wagner claims that the trial court erred by prohibiting him from
cross-examining Detective Nordo, Detective White, and Officer Golphin
regarding statements Wagner made to police during post-arrest interviews
and as a result is entitled to a new trial. Specifically, in his statement to
police, Wagner implicated Bryant and Payne in the shooting of King. Wagner
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argues that these statements establish his defense that Payne shot and
killed King. For the following reasons, this claim is meritless.
An accused has a fundamental right to present evidence, so long as
the evidence is relevant and not excluded by an established evidentiary rule.
Chambers v. Mississippi, 410 U.S. 284 (1973). It is well-established that
evidence that tends to show that someone else committed the crime for
which an accused stands trial is relevant. See Commonwealth v. Boyle,
368 A.2d 661 (Pa. 1976); Commonwealth v. McGowan, 635 A.2d 113
(Pa. 1993); Commonwealth v. Rini, 427 A.2d 1385 (Pa. Super. 1981).4
However, evidence showing someone else committed the crime is only
admissible if it is not precluded by an established evidentiary rule.
Chambers, supra.
Here, Wagner’s counsel acknowledged that he wanted to question
Officer Golphin regarding his client’s statements in order to bring the content
of those statements before the jury without having to call Wagner to the
stand. N.T. Trial, 2/04/13, at 92-93. Upon objection by the
Commonwealth, the trial court disallowed the cross-examination of the
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4
In support of this claim, Wagner cited multiple cases that involve a trial
court’s erroneous exclusion of relevant, admissible evidence proffered by
defendants to prove that someone else committed the crime for which they
were charged. See Boyle, supra; McGowan, supra; Rini, supra. Here,
however, the evidence Wagner sought to admit was in clear violation of the
hearsay rule and, accordingly, was inadmissible. These cases are therefore
inapposite.
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officers regarding Wagner’s post-arrest statements because they were
hearsay. Hearsay is a statement that (1) the declarant does not make while
testifying in the current proceeding which (2) a party offers in evidence to
prove the truth of the matter asserted in the statement. Pa.R.E. 801(c).
The hearsay rule is based on experience that untrustworthy evidence, out-
of-court statements, should not be presented to the triers of fact because
they lack reliability that could otherwise be established through cross-
examination or statements made under oath. Chambers, 410 U.S. at 298.
“A number of exceptions have developed over the years to allow the
admission of hearsay statements made under circumstances that tend to
assure reliability and thereby compensate for the absence of the oath and
opportunity for cross-examination.” Id. at 298-99. However, where a
defendant seeks at trial to introduce his own statements made at the time of
arrest to support his version of the facts, such testimony is clearly offensive
to the hearsay rule. Commonwealth v. Benson, 10 A.3d 1268, 1274-75
(Pa. Super. 2010), citing Commonwealth v. Murphy, 425 A.2d 352 (Pa.
1981).
Here, Wagner’s counsel sought to admit the content of Wagner’s out-
of-court statement for its truth, i.e., as proof that Bryant and Payne were
the actual shooters. This self-serving statement is clearly violative of the
hearsay rule and, as such, the trial court did not err in excluding it.
Benson, supra.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2015
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