J-S48022-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DANIEL ODEM, JR., :
:
Appellant : No. 2028 WDA 2014
Appeal from the Judgment of Sentence November 14, 2014,
Court of Common Pleas, Mercer County,
Criminal Division at No. CP-43-CR-0001612-2013
BEFORE: PANELLA, DONOHUE and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 27, 2015
Appellant, Daniel Odem, Jr. (“Odem”), appeals from the judgment of
sentence entered on November 14, 2014 in the Court of Common Pleas,
Mercer County. For the reasons set forth herein, we affirm.
The trial court provided a brief summary of the factual and procedural
history as follows:
On October 10, 2013, at approximately 2:00 a.m.,
Leonard Figgins [(“Figgins”)] was walking down
Front Street in the City of Farrell when a car driven
by [Odem] pulled up next to him. Figgins walked
over to the car and the passenger window was
opened. Just as Figgins got to the window, Sean
Rain [(“Rain”)] “popped up” from the passenger seat
and fired a shot at Figgins. Figgins fled and Rain
pursued him on foot firing four (4) more shots. The
third shot hit Figgins in the upper part of his right
arm shattering the bone.
Sergeant Charles Rubano [(“Sergeant Rubano”)] of
the Southwest Mercer County Regional Police
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Department was in the area at the time the shooting
took place. He saw two (2) individuals exit the
vehicle. Inside the vehicle, two (2) guns were found
on the passenger side floor. One of the guns had
five (5) spent casings in the magazine.
[Odem] was apprehended shortly thereafter
following a chase on foot.
[Odem] was charged with two (2) counts of
Aggravated Assault, two (2) counts of Firearms Not
to be Carried without a License, two (2) counts of
Recklessly Endangering Another Person, Discharge of
a Firearm into an Occupied Structure, Attempted
Murder, Criminal Conspiracy to Commit Aggravated
Assault and Criminal Conspiracy to Discharge a
Firearm into an Occupied Structure.
A preliminary hearing was held on October 24, 2012,
before Magisterial District Judge Ronald Antos. At
the conclusion of that hearing, the charges of
Attempted Murder, Aggravated Assault and
Discharge of a Firearm into an Occupied Structure
were dismissed and the balances of the charges were
held for trial.
[Odem] was arraigned on December 23, 2013, on
the charges of Firearms Not to be Carried Without a
License, two (2) counts, Recklessly Endangering
Another Person, Criminal Conspiracy to Commit
Aggravated Assault under 18 Pa.C.S.[A.] §
2702(a)(1); Criminal Conspiracy to Commit
Aggravated Assault under 18 Pa.C.S.[A.] §
2701(a)(4) and Criminal Conspiracy to Commit
Discharge of a Firearm into an Occupied Structure.
On August 27, 2014, the Commonwealth filed a
Motion to Amend the Information to include the
charges of Attempted Murder and Criminal
Conspiracy to Commit Murder. The Motion was
denied on September 8, 2014.
A jury trial commenced on September 16, 2014.
During the trial, on [m]otion of the Commonwealth,
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the [i]nformation was amended to include charges of
Aggravated Assault under sub-sections (a)(1) and
(a)(4) and Discharge of a Firearm into an Occupied
Structure solely on a theory of conspiratorial liability.
A Directed Judgment of Acquittal was granted at the
close of the Commonwealth’s case on the charges of
Discharge of a Firearm into an Occupied Structure
and Criminal Conspiracy to Discharge a Firearm into
an Occupied Structure.
On September 19, 2014, the jury returned verdicts
of guilty on all the remaining charges.
[Odem] was sentenced on November 14, 2014, to a
term of imprisonment of not less than three (3)
years nor more than 15 years on the charge of
Aggravated Assault F-1 and concurrent terms of
imprisonment on the remaining counts.
Trial Court Opinion, 1/16/15, 1-3 (internal citations omitted).
Odem timely filed a notice of appeal on December 10, 2014. On
appeal, Odem raises the following issues for our review,1 which we have
reordered for ease of disposition:
I. Did the trial court err in amending the
information?
II. Did the trial court err in failing to dismiss the
case based upon a Brady violation?
III. Did the trial court err in failing to instruct the
jury that a negative inference could be drawn in the
Commonwealth not providing video surveillance?
IV. Did the trial court err in instructing the jury on
the charge of conspiracy?
1
We note that in his Concise Statement of Errors Complained of on Appeal,
Odem raised eight issues. Odem, however, has only presented four issues
in his brief, and accordingly, we only address these issues.
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Odem’s Brief at 4.
For his first issue on appeal, Odem argues that the trial court erred in
amending the criminal information on the second day of trial to include
charges of aggravated assault attempt to cause serious bodily injury,
18 Pa.C.S.A. § 2702(a)(1)2, and aggravated assault with a deadly weapon,
18 Pa.C.S.A. § 2702(a)(4)3. Odem’s Brief at 15. The record reflects that at
the conclusion of the second day of trial, the Commonwealth requested the
trial court to add the two counts of aggravated assault under an accomplice
theory. N.T., 9/17/14, at 187-88. Counsel for Odem immediately objected
to the amendment. Id. at 188-89. Despite defense counsel’s objection, the
trial court permitted the amendment, explaining that the amendments would
not be permitted under accomplice liability as requested by the
Commonwealth, but rather, would be included under conspiracy liability. Id.
at 189-90. In so doing, the trial court stated, “I understand that accomplice
is a little different concept, and I can see the prejudice there. … I will permit
the amendment on the theory that it will come in as conspirator, not
accomplice liability.” Id. The trial court further explained, “When you are
2
“(a) Offense defined.--A person is guilty of aggravated assault if he: (1)
attempts to cause serious bodily injury to another, or causes such injury
intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1).
3
“(a) Offense defined.--A person is guilty of aggravated assault if he: (4)
attempts to cause or intentionally or knowingly causes bodily injury to
another with a deadly weapon.” 18 Pa.C.S.A. § 2702(a)(4).
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charged with a conspiracy and if you are convicted you can be subject to
conviction under the underlying charge. It’s a given.” Id. at 189. On
appeal, Odem contends that he was prejudiced by the amendments because
he had to employ a different trial strategy and did not have additional time
to prepare a defense. Id. at 15-16.
Rule 564 of the Pennsylvania Rules of Criminal Procedure provides that
“[t]he court may allow an information to be amended when there is a defect
in form, the description of the offense(s), the description of any person or
any property, or the date charged, provided the information as amended
does not charge an additional or different offense.” Pa.R.Crim.P. 564. As
this Court held in Commonwealth v. Sinclair, 897 A.2d 1218 (Pa. Super.
2006), when presented with a challenge to the propriety of an amendment,
we must consider
[w]hether the crimes specified in the original
indictment or information involve the same basic
elements and evolved out of the same factual
situation as the crimes specified in the amended
indictment or information. If so, then the defendant
is deemed to have been placed on notice regarding
his alleged criminal conduct. If, however, the
amended provision alleges a different set of events,
or the elements or defenses to the amended crime
are materially different from the elements or defense
to the crime originally charged, such that the
defendant would be prejudiced by the change, then
the amendment is not permitted.
***
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In reviewing a grant to amend an information,
[this] Court will look to whether the appellant was
fully apprised of the factual scenario which supports
the charges against him. Where the crimes specified
in the original information involved the same basic
elements and arose out of the same factual situation
as the crime added by the amendment, the appellant
is deemed to have been placed on notice regarding
his alleged criminal conduct and no prejudice to
defendant results.
Id. at 1222 (citations omitted).
This Court has held that “[r]elief is only proper where the amendment
prejudices the defendant.” Commonwealth v. Veon, 109 A.3d 754, 768
(Pa. Super. 2015) (citing Sinclair, 897 A.2d at 1223). To determine
whether an amendment results in prejudice, we must consider the following:
(1) whether the amendment changes the factual
scenario supporting the charges; (2) whether the
amendment adds new facts previously unknown to
the defendant; (3) whether the entire factual
scenario was developed during a preliminary
hearing; (4) whether the description of the charges
changed with the amendment; (5) whether a change
in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth's request for amendment allowed for
ample notice and preparation.
Veon, 109 A.3d at 768.
In this case, Odem had already been charged with conspiracy to
commit aggravated assault. The amendment to the criminal information
added two offenses of aggravated assault under 18 Pa.C.S.A. §§ 2702(a)(1),
(a)(4). Odem asserts that the amendment necessitated a change in defense
strategy, as he would have to “disprove that [Rain] specifically intended to
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cause injury to the victim.” Odem’s Brief at 15-16. The trial court,
however, found that Odem’s claim was meritless since the charges arose out
of the same factual situation and “[h]is defense would be the same because
he had to prevail on the conspiracy charges to be acquitted.” Trial Court
Opinion, 1/16/15, at 5. After our review of the record, we agree.
Odem knew at the time the charges against him were originally filed
that the Commonwealth sought to prove that he and Rain conspired to
attack the victim. The amendment to include the substantive offenses of
aggravated assault arose out of the conspiracy charges and did not add any
additional facts unknown to Odem. Rather, the amendment involved the
“same basic elements and arose out of the same factual situation” as the
original information. See Sinclair, 897 A.2d at 1222.
Moreover, the amended information did not require Odem to change
his defense since the substantive offenses were the underpinnings of the
conspiracy charges. Odem was still required to present a defense to the
conspiracy charges with which he was already charged and thus, was
required to disprove a conspiracy between him and Rain to commit
aggravated assault. Prevailing on the conspiracy charges would exculpate
him of the substantive offenses. Since the amended information did not
require Odem to change his defense, Odem’s contention that he did not have
adequate time to prepare since the amendment occurred at the conclusion
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of the second day of trial lacks merit. Accordingly, we conclude that Odem
failed to establish that the amendment resulted in prejudice.
Odem also asserts that the trial court erred by amending the criminal
information sua sponte. Odem’s Brief at 16. Odem supports the trial court’s
decision to deny the Commonwealth’s attempt to amend the information
under an accomplice liability theory, but argues that the trial court did not
have the authority to permit the amendment under a conspiracy theory. Id.
at 17.
In support of his position, Odem relies upon Commonwealth v.
Donaldson, 488 A.2d 639 (Pa. Super. 1985), wherein this Court held that a
“trial court was without authority to sua sponte add a charge to the
information.” Id. at 641 (italicization omitted). In Donaldson, the
defendant was arrested based on a complaint filed by police that alleged he
“intentionally, knowingly and recklessly cause[d] bodily injury … under
circumstances manifesting extreme indifference to the value of human life”
when he shot an individual in the back with a rifle. Id. Following the
preliminary hearing, the Commonwealth filed a criminal information charging
the defendant with felony aggravated assault under 18 Pa.C.S.A. §
2702(a)(1). Id. at 641. The defendant moved to quash the felony
aggravated assault charge from the information, claiming that “the initial
police complaint and preliminary hearing did not cover the charge of felony
Aggravated Assault.” Id. The trial court agreed with the defendant and
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amended the information sua sponte to include misdemeanor aggravated
assault under 18 Pa.C.S.A. § 2702(a)(4). Id. The Commonwealth
appealed.
On appeal, this Court concluded that “the charge of Aggravated
Assault under 18 Pa.C.S.[A.] § 2702(a)(4) was improperly added to the
Information.” Id. at 642. The Donaldson Court found that “[b]y adding,
on its own motion, the misdemeanor count to the Information, the [trial]
court removed from the district attorney the opportunity to fully review this
new charge that would have been included on the Information above the
district attorney’s signature” and thus, the district attorney would not have
had the opportunity to make a “reasoned evaluation of the propriety of
initiating criminal proceedings against the defendant.” Id. (citing
Commonwealth v. Williams, 470 A.2d 1376, 1380 (Pa. Super. 1984) (“the
signature requirement ‘is to assure the authenticity of an information and to
guarantee that the district attorney has inquired fully into all facts and
circumstances attendant to a particular case and has made a reasoned
evaluation of the propriety of initiating criminal proceedings against
defendant.’”) (emphasis in original)).
Unlike the trial court in Donaldson, however, the trial court in this
case did not add the charges of aggravated assault on the amended
information sua sponte, but rather, included the offenses based on the
Commonwealth’s motion. The Commonwealth’s motion to include the
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charges of aggravated assault demonstrated its intent to hold Odem
responsible for the substantive crimes committed by Rain in furtherance of
the conspiracy. The Commonwealth’s motion was grounded on an improper
theory, however, as Odem was never charged under a theory of accomplice
liability. The trial court’s actions in this instance (permitting the amendment
based on conspiracy theory rather than accomplice liability) did not remove
from the Commonwealth the opportunity to make “a reasoned evaluation of
the propriety of initiating criminal proceedings against [Odem].” See
Donaldson, 488 A.2d at 642. Instead, the trial court permitted the
Commonwealth to amend the information to include the substantive offenses
that they requested, albeit based upon a different theory of liability than the
one proffered by the Commonwealth, to accomplish its goal of holding Odem
responsible for the actions of his co-conspirator. The Commonwealth did not
object to the different theory of liability, evidencing its continued approval of
the propriety of the amendments. Thus, Donaldson does not support
Odem’s argument in this case. Odem is not entitled to relief on his first
issue.
For his second issue on appeal, Odem argues that the trial court erred
by failing to dismiss the case against him when the Commonwealth failed to
produce a video recording from the several video cameras installed
throughout the city that allegedly captured the incident. Odem’s Brief at 24-
28. The record reflects that at the preliminary hearing, Sergeant Rubano
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testified that a video camera captured an individual “running across the
apartment buildings and then out of sight and then up this way to Fruit
Avenue.” N.T., 10/24/13, at 42-43. Sergeant Rubano further stated that
the video needed to be enhanced and that he could not say whether the
person in the video was the driver, the passenger, or anyone in the vehicle.
Id. at 43.
During pre-trial discovery, Odem requested that the Commonwealth
disclose the video recording that Sergeant Rubano referenced during the
preliminary hearing. On March 10, 2014, the trial court entered an order,
directing the Commonwealth to “notify [Odem] on or before March 31st,
2014, whether or not there is a video depicting where the incident took place
and if it shows [Odem’s] vehicle.” Trial Court Order, 3/10/14, at 1-2. The
Commonwealth failed to comply. On April 8, 2014, in response to the
Commonwealth’s failure to comply with the trial court’s March 10, 2014
order, Odem filed a motion to compel discovery. The trial court granted
Odem’s motion to compel on April 9, 2014 and ordered as follows: “The
Commonwealth shall this date make available to the defense the video
surveillance capturing a portion of the alleged incident[.]” Trial Court Order,
4/9/14, at 1. The Commonwealth failed to comply with the trial court’s April
9, 2014 order to produce the video recording. Furthermore, despite
Sergeant Rubano's testimony at the preliminary hearing, the Commonwealth
informed Odem prior to trial that there was no video of the incident.
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When questioned at trial regarding the video he previously referenced,
Sergeant Rubano waivered in his testimony, initially stating that he did not
believe that he ever saw the video Odem and his counsel were requesting.
N.T., 9/16/13, at 69-70. Sergeant Rubano then changed course and
testified that he recalled testifying at the preliminary hearing that he saw the
video, but that the video was of no value because no one could be identified
from the video. Id. at 70. The Commonwealth thereafter attempted to
introduce testimony explaining that the video recording did not exist
because the police department did not preserve it since it was of no value.
Id. at 70. The trial court precluded the Commonwealth from introducing
this testimony, however, as a sanction for failing to produce the video
recording during pre-trial discovery. Id.
On appeal, Odem asserts that the video recording would have affected
the outcome of the trial and thus, the Commonwealth violated the principles
of Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce the video
recording, requiring dismissal of charges against him. Odem’s Brief at 27-
28. In Brady, the United States Supreme Court held that “suppression by
the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. In order to establish that the Commonwealth committed a
Brady violation, the defense must demonstrate that: (1) the evidence was
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suppressed by the Commonwealth, either willfully or inadvertently; (2) the
evidence was favorable to the defendant; and (3) the evidence was material,
in that its omission resulted in prejudice to the defendant. Commonwealth
v. Antidormi, 84 A.3d 736, 747 (Pa. Super. 2014) (citing Commonwealth
v. Haskins, 60 A.3d 538, 545 (Pa. Super. 2012)).
Here, it is undisputed that the Commonwealth failed to produce the
video recording. Odem contends that the evidence from the video recording
was favorable and material to his defense, as it “would have completely
undermined the victim’s credibility and support[ed] [Odem’s] theory of the
case that the vehicle never stopped, the codefendant never exited and
pursued the victim and that [Odem] never acted in concert by waiting for
the codefendant.” Odem’s Brief at 26-27. Despite Odem’s assertions,
however, we are unable to make a determination of the favorability or
materiality of the evidence since the contents of the video recording are
unknown and will remain unknown given the Commonwealth’s failure to
preserve the video.
In these instances, where the evidence was destroyed before the
defense had the opportunity to examine the evidence and is therefore, only
potentially useful, Brady does not govern our determination of whether or
not a due process violation occurred. Instead, evidence that is only
potentially useful constitutes a separate category of evidence to which a
defendant has constitutionally guaranteed access under the Due Process
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Clause of the Fourteenth Amendment. Commonwealth v. Chamberlain,
30 A.3d 381, 402 (Pa. 2011). In these cases, a determination of whether a
due process violation has occurred is governed by Arizona v. Youngblood,
488 U.S. 51 (1988). Commonwealth v. Feese, 79 A.3d 1101, 1109 (Pa.
Super. 2013).
In Youngblood, the defendant was convicted of child molestation,
sexual assault, and kidnaping. Youngblood, 488 U.S. at 52. The police
improperly preserved the blood, saliva, and semen samples that were
collected from the victim and his clothing. Id. at 52-54. Thus, the samples,
when subjected to testing, provided inconclusive results. Id. at 54-55.
After being convicted based on the victim’s identification of the
defendant as the perpetrator, the defendant filed an appeal to the United
States Supreme Court, asking the high court to determine whether the
omission of evidence that was destroyed by the state, which had the
potential to exonerate him, deprived the defendant of a fair trial. The
Youngblood Court held:
The Due Process Clause of the Fourteenth
Amendment, as interpreted in Brady, makes the
good or bad faith of the State irrelevant when the
State fails to disclose to the defendant material
exculpatory evidence. But we think the Due Process
Clause requires a different result when we deal with
the failure of the State to preserve evidentiary
material of which no more can be said than that it
could have been subjected to tests, the results of
which might have exonerated the defendant.
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Id. at 57. Thus, the Supreme Court concluded that “unless a criminal
defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of
law.” Id. at 58.
In this case, Odem failed to present any evidence or argument
relevant to Youngblood to establish that the police acted in bad faith.
Instead, Odem focused his argument that the Commonwealth’s failure to
produce the video recording requires dismissal of the charges against him on
establishing a Brady violation. As Brady is not the proper inquiry in this
instance, we conclude that Odem has not preserved the proper argument for
appeal, and his claim is accordingly waived. See Commonwealth v. Rush,
959 A.2d 945, 949 (Pa. Super. 2008) (“[F]or any claim that was required to
be preserved, this Court cannot review a legal theory in support of that claim
unless that particular legal theory was presented to the trial court.”);
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.”). Whether counsel provided
ineffective assistance by failing to preserve the Youngblood issue for
appeal may be raised, if appropriate, on collateral review.
For his final two issues on appeal, Odem challenges the trial court’s
jury instructions. Our standard of review provides that
[w]hen reviewing a challenge to part of a jury
instruction, we must review the jury charge as a
whole to determine if it is fair and complete. A trial
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court has wide discretion in phrasing its jury
instructions, and can choose its own words as long
as the law is clearly, adequately, and accurately
presented to the jury for its consideration. The trial
court commits an abuse of discretion only when
there is an inaccurate statement of the law.
Commonwealth v. Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (quoting
Commonwealth v. Einhorn, 911 A.2d 960 (Pa. Super. 2006)).
Odem first asserts that the trial court erred by failing to instruct the
jury that a negative inference could be drawn from the Commonwealth’s
failure to provide the video surveillance of the incident. Odem’s Brief at 18.
After our review of the record, however, we conclude that Odem failed to
preserve this issue for appeal.
It is well settled that
[a] specific and timely objection must be made to
preserve a challenge to a particular jury instruction.
Failure to do so results in waiver. Generally, a
defendant waives subsequent challenges to the
propriety of the jury charge on appeal if he responds
in the negative when the court asks whether
additions or corrections to a jury charge are
necessary.
Commonwealth v. Charleston, 16 A.3d 505, 527-28 (Pa. Super. 2011)
(quoting Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010)).
In this case, the record reflects that the trial court denied Odem’s
request for a negative inference instruction.
DEFENSE COUNSEL: What about an adverse
inference for the videotapes that they had in their
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possession and didn’t -- I believe that’s 4 -- there is
a section for adverse inference.
THE COURT: I’m not going to give that one. No.
They are saying there is nothing on there to show
that your client did it, so there is nothing in there to
show that he’s done it and he’s guilty of this.
N.T., 9/18/14, at 92-93. Odem did not lodge an objection to the trial court’s
ruling. After the jury was given its instructions, the trial court asked defense
counsel whether he had any additions or corrections, to which counsel
responded, “No additions or corrections, just exceptions.” Id. at 122.
Defense counsel presented one exception, which did not relate to the
negative inference instruction. Accordingly, pursuant to Rule 647(B) of the
Pennsylvania Rules of Criminal Procedure, this issue was not preserved for
appellate review. Pa.R.Crim.P. 647(B) (“No portions of the charge nor
omissions from the charge may be assigned as error, unless specific
objections are made thereto before the jury retires to deliberate.”); see
also Pa.R.A.P. 302(b) (“A general exception to the charge to the jury will
not preserve an issue for appeal. Specific exception shall be taken to the
language or omission complained of.”).
Second, Odem assails the trial court’s jury instruction regarding
conspiracy. Odem’s Brief at 28-31. Odem contends that the trial court’s
instruction was prejudicial in this case because it “instructed the jury that it
could infer [Odem’s] guilt by his mere presence at the scene[.]” Id. at 29-
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30. Odem specifically challenges the following portion of the trial court’s
instruction:
Now, you cannot infer from the fact that he was
present when the crime was committed that he was
part of the conspiracy. You must look at all the
other factors. So him just sitting in the car when it
happens, that alone does not promote conspiracy.
But if you find that he did other things, such as
drove there, such as assisted him in having the
crime committed, that goes beyond mere presence.
N.T., 9/18/14, at 117-18.
On appeal, Odem asserts that “[t]he only reason [he] was present at
the scene of the crime was because he was driving with [] Rain at the time
the incident occurred.” Odem’s Brief at 29. Odem argues that since the trial
court instructed the jury that driving to the scene goes beyond mere
presence and is sufficient evidence to infer the existence of a conspiracy,
and since “[t]he only evidence presented by the Commonwealth to prove
that [Odem] conspired with [] Rain to shoot the victim was that [Odem] was
driving his vehicle at the time [] Rain fired the weapon[,]” the trial court
“explicitly informed the jury that it could infer guilt from [his] mere presence
as the driver of a vehicle[.]” Id. at 29-30. Thus, Odem asserts that the trial
court’s instruction “foreclosed any possibility of the jury returning a verdict
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in [his] favor” and accordingly, was prejudicial. Id. at 29, 31. After
reviewing the record, we disagree.4
Although Odem contests the accuracy of the trial court’s statement of
the law (that driving to the scene constitutes more than mere presence and
is sufficient evidence to infer a conspiracy), we conclude that the trial court
did not err. This Court previously concluded that “[t]he driver of a getaway
car can be found guilty as a co-conspirator if it is reasonable to infer that he
was aware of the actual perpetrator’s intention.” Commonwealth v.
Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001).
In Davalos, the appellant was driving his car with his friend as a
passenger. Id. at 1192. The appellant, after driving by a bar five times,
4
Contrary to the trial court’s determination that Odem waived this issue for
appeal, see Trial Court Opinion, 1/16/15, at 4, our review of the record
reveals that Odem preserved this issue. After the jury heard instructions,
defense counsel offered an exception to the trial court’s instructions with
regard to conspiracy, stating:
My exception is when you talked about being
present. The Court indicated essentially that if you
drove them there, you did more, so the Court is
basically saying the fact that he drove. Mr. Rain is in
the car. That’s more than simply being present. I
don’t think that’s an accurate basis of the law.
That’s my exception.
N.T., 9/18/14, at 122-23. As this exception noted the specific language
complained of, we conclude that Odem preserved the issue. See
Charleston, 16 A.3d at 527-28; see also Pa.R.A.P. 302(b) (“A general
exception to the charge to the jury will not preserve an issue for appeal.
Specific exception shall be taken to the language or omission complained
of.”).
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“stopped his car and lowered the passenger window” at which time, his
passenger fired eight gun shots at a group of four men. Id. The appellant
was charged with and convicted of two counts of aggravated assault and
criminal conspiracy. Id. The appellant filed an appeal contesting the
sufficiency of the evidence to establish that he was involved in a criminal
conspiracy with the passenger. Id. at 1193.
The Davalos Court held that “a conspiracy may be proven inferentially
by showing the relation, conduct, or circumstances of the parties, and the
overt acts of alleged co-conspirators are competent as proof that a criminal
confederation has in fact been formed.” Id. The Davalos Court further
provided that “[t]he presence of such circumstances may furnish a web of
evidence linking an accused to an alleged conspiracy beyond a reasonable
doubt when viewed in conjunction with each other and in the context in
which they occurred.” Id. (quoting Commonwealth v. Swerdlow, 636
A.2d 1173, 1177 (Pa. Super. 1994)). Thus, the Davalos Court determined
that the jury “could have reasonably adduced that [the] [a]ppellant not only
agreed to, but did, aid the shooter in the commission of his act” since he
“drove the shooter to the bar … sped away with the shooter, changed cars
and evaded the police for two hours before being arrested.” Id. at 1194.
In this case, the trial court instructed the jury that the Commonwealth
was attempting to prove a conspiracy by circumstantial evidence. N.T.,
9/18/14, at 116-17. The trial court thereafter instructed the jury that it
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J-S48022-15
must “look at all other factors” beyond Odem’s mere presence at the scene
and suggested that finding that Odem drove to the scene or “that he did
other things” constituted more than mere presence to infer that Odem was
part of a conspiracy with Rain. Id. at 117-18. We find no error in these
instructions. Accordingly, Odem is not entitled to relief on his final issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2015
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