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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL ALAN WILKINS
Appellant No. 1401 MDA 2015
Appeal from the Judgment of Sentence July 16, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003315-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED AUGUST 26, 2016
Appellant, Michael Alan Wilkins appeals from the judgment of sentence
entered after he was convicted of, among others, three counts of first
degree murder. Wilkins raises multiple challenges to his convictions,
including an argument that the trial court erred in not severing the trial of
the third murder from the other two. After careful review, we affirm.
In the early morning of December 4, 2012, gunmen shot and killed
Dario R. McLemore and Rafael Alequin in Reading. Three weeks later, the
charred body of Jennifer Velez-Negron was found near a road in Lehigh
County. A wad of cloth was taped into her mouth, and heroin and cocaine
were found in her system.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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The Commonwealth charged Wilkins with the murder of all three
victims. At trial, the Commonwealth presented the following evidence to
support its charges. Carlos Vargas-Osario testified that he lived with Wilkins
and Wilkins’s brother, Maurice. In the early morning of December 4, 2012,
Vargas-Osario drove to Reading in his blue Camaro to find narcotics to
purchase. While there, Wilkins pulled alongside him in an SUV. Vargas-
Osario noticed that both Maurice and Wilkins’s girlfriend, Velez-Negron, were
in Wilkins’s SUV.
Wilkins instructed Vargas-Osario to follow him. Vargas-Osario
proceeded to follow the SUV in his Camaro. Shortly thereafter, he observed
Maurice leave the SUV and discharge a firearm several times into a nearby
vehicle. Maurice then got into the Camaro, and Vargas-Osario began to drive
away. As he left the scene, he watched as someone fled the vehicle Maurice
had shot at. He heard gunfire erupt from driver’s side of Wilkins’s SUV.
Reading Police Officer Tina Fallstich was on patrol at the time of the
shooting and heard the shots from a nearby intersection. She proceeded to
the location of the shooting and eventually discovered the body of Rafael
Alequin slumped over in the passenger seat of a vehicle double parked in the
road. As she was radioing in her observation, she noticed the body of Dario
McLamore face down several feet away on the sidewalk.
The Commonwealth presented video from a nearby security camera.
Investigator Eric Driesbach described the video as it played to the jury:
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The video … shows … three vehicles pulling up, stopping for what
appears to be a red light, obviously, because they all stopped. A
gentleman gets out of the passenger side of the second vehicle
in line, walks over to the curb on the north side of the block right
next to the first parked car, approaches the car, appears to fire
at least two gunshots at the car. The first car pulls through the
intersection. The gentleman walks a little bit north on South
Tenth Street. The other two vehicles go through the intersection
and then the male returns to the third vehicle in line that was
originally stopped in line.
While the video did not display the shooting of Dario McLamore, spent
cartridges found near his body were of a different caliber than those found in
the area of the body of Rafeal Alequin.
Vargas-Osario testified that Wilkins later admitted to the killing by
explaining his motive. McLamore and Alequin had previously sold Wilkins
fake narcotics for $800. Furthermore, he testified that Wilkins was angry
with his girlfriend, Velez-Negron, as she had introduced Wilkins to McLamore
and Alequin.
Javonda Lebo testified that Wilkins and his brother had confessed to
the shootings later in the morning of December 4. Wilkins expressed to her
that Velez-Negron was at fault for the drug deal gone wrong, and that Velez-
Negron “got to go, like for setting them up.” Approximately two weeks later,
Wilkins and Maurice asked Lebo to create a mixture of cocaine and heroin in
an effort to get Velez-Negron to overdose. When this attempt failed, Wilkins
and his brother attempted to convince Velez-Negron to administer the fatal
narcotic cocktail to Vargas-Osario.
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After Velez-Negron’s burnt body was discovered, Maurice showed Lebo
a video of Velez-Negron taped to a chair. Maurice told Lebo that he and
Wilkins had given Velez-Negron three bags of heroin. Wilkins was standing
next to the chair, holding a clear plastic bag. Maurice asked Velez-Negron
whether she would set anyone else up, and she shook her head. One of the
men shoved a white cloth in Velez-Negron’s mouth. Wilkins placed the
plastic bag over Velez-Negron’s head as the men threatened her. After
playing the video, Wilkins admitted to Lebo that he had murdered Velez-
Negron.
The jury found Wilkins guilty of three counts of first degree murder,
two counts of conspiracy to commit murder, one count of kidnapping, one
count of criminal solicitation to commit murder of Vargas-Osario, and several
other lesser charges. After a penalty phase trial, the jury reached a
unanimous verdict of life imprisonment for the murder of Alequin. However,
the jury could not reach a unanimous verdict for the murders of McLamore
and Velez-Negron. As a result, the trial court imposed an aggregate
sentence of three consecutive lifetimes. This timely appeal followed.
On appeal, Wilkins first argues that the trial court erred in failing to
grant his motion to sever the trial on the charge of the murder of Velez-
Negron from the trial of the other two murder charges. He contends that the
crimes were not factually related, and that the joint trial prejudiced him
unfairly.
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We will reverse a trial court’s decision to consolidate offenses for trial
only if in doing so it abused its discretion. To address Wilkins’s challenge, we
must determine:
[1] whether the evidence of each of the offenses would be
admissible in a separate trial for the other; [2] whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries are in
the affirmative; [3] whether the defendant will be unduly
prejudiced by the consolidation of offenses.
Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa. Super. 1999) (citation
omitted). See also Pa.R.Crim.P. 582 and 583.
Accordingly, our first step is to determine whether the evidence
regarding Wilkins’s involvement in Velez-Negron’s murder would have been
admissible if that count had been tried separately. It is impermissible to
present evidence at trial of a defendant’s prior bad acts or crimes to
establish the defendant’s criminal character or proclivities. See
Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). Such
evidence, however, may be admissible “where it is relevant for some other
legitimate purpose and not utilized solely to blacken the defendant’s
character.” Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super.
2007) (citation omitted). The Rules of Evidence specifically provide that
“[e]vidence of other crimes, wrongs, or acts may be admitted for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident.” Pa.R.E. 404(b)(2).
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Here, we have little difficulty in concluding that the evidence of each
crime would have been admissible in separate trials. The evidence linking
Wilkins to the murder of Velez-Negron would have been admissible in a
separate trial for the murders of McLamore and Alequin, as it tended to
establish Wilkins’s consciousness of guilt for these slayings. See
Commonwealth v. Irons, 326 A.2d 488, 491 (Pa. Super. 1974). Similarly,
evidence of Wilkins’s involvement in the killings of McLamore and Alequin
would have been admissible in a separate trial for the murder of Velez-
Negron as evidence of Wilkins’s motive for the murder. See
Commonwealth v. Paddy, 800 A.2d 294, 307 (Pa. 2002).
The next step is to determine whether joinder of the trials poses a
danger of confusing the jury. Where the criminal offenses at issue are
distinguishable in time, place and parties involved, there is no danger of jury
confusion. See Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997).
Here, the crimes occurred in different places, at different times, and involved
different victims; there was no danger of confusing the jury with evidence of
each crime.
Finally, we must determine whether joinder of the trials unfairly
prejudiced Wilkins.
The “prejudice” of which Rule [583] speaks is not simply
prejudice in the sense that appellant will be linked to the crimes
for which he is being prosecuted, for that sort of prejudice is
ostensibly the purpose of all Commonwealth evidence. The
prejudice of which Rule [583] speaks is, rather, that which would
occur if the evidence tended to convict appellant only by showing
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his propensity to commit crimes, or because the jury was
incapable of separating the evidence or could not avoid
cumulating the evidence.
Newman, 598 A.2d 275, 279 (Pa. 1991) (citation omitted). Given the
breadth of the Commonwealth’s evidence regarding each murder, we cannot
conclude that the joint trial resulted in the jury convicting him merely due to
his propensity to commit crimes. Rather, the evidence, taken as a whole,
demonstrated an ongoing criminal enterprise based upon Wilkins’s belief that
he had been cheated in a narcotics transaction with McLamore and Alequin.
Under these circumstances, we cannot conclude that the trial court abused
its discretion in refusing to sever the charges. Thus, Wilkins’s first issue on
appeal merits no relief.
In his second issue, Wilkins challenges the sufficiency of the evidence
to establish that he participated in a conspiracy to kill McLamore and
Alequin. “The standard for review is whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in the light
most favorable to the Commonwealth as verdict winner, was sufficient to
enable the factfinder to conclude that the Commonwealth established all of
the elements of the offense beyond a reasonable doubt.” Commonwealth
v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007) (citation omitted). “To
sustain a conviction of criminal conspiracy[,] … [t]he Commonwealth must
establish that the defendant (1) entered into an agreement to commit or aid
in an unlawful act with another person or persons, (2) with a shared criminal
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intent, and (3) an overt act done in furtherance of the conspiracy.”
Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa. Super. 2005)
(citation omitted); see also 18 Pa.C.S.A. § 903. Circumstantial evidence
may suffice as proof of the conspiracy. See Bricker, 822 A.2d at 1017.
Wilkins contends that the Commonwealth presented no evidence
beyond his mere presence to support his convictions for the murder of
McLamore and Alequin. However, this argument misconstrues the evidence
at trial. The Commonwealth presented evidence that Wilkins admitted that
he and Maurice killed McLamore and Alequin because the victims had
cheated Wilkins in a prior narcotics transaction. See N.T., Trial, 6/8/15 –
6/12/15, at 653. Furthermore, the Commonwealth presented evidence that
Wilkins attempted to cover-up his involvement in the murders of McLamore
and Alequin. See id., at 654-662. This evidence was sufficient to permit the
jury to infer that Wilkins and his brother were acting upon an agreed course
of conduct when McLamore and Alequin were murdered. Thus, Wilkins’s
second issue on appeal merits no relief.
Next, Wilkins argues that the trial court should have provided special
interrogatories for the jury to answer while it deliberated. Wilkins concedes
that no Pennsylvania authority exists to support his argument. See
Appellant’s Brief, at 20. Indeed, as the Commonwealth points out, the use
of special interrogatories in criminal trials “has been almost universally
condemned.” Commonwealth v. Jacobs, 39 A.3d 987, 987 (Pa. 2012)
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(citation omitted). Under these circumstances, we cannot conclude that
Wilkins’s third argument on appeal merits any relief.
In his fourth issue, Wilkins challenges the trial court’s failure to order a
new trial based upon the weight of the evidence. However, Wilkins did not
raise this challenge before the trial court. “Failure to challenge the weight of
the evidence presented at trial in an oral or written motion prior to
sentencing or in a post-sentence motion will result in waiver of the claim.”
Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa. Super. 2012) (citation
omitted). The trial court notes that Wilkins did not raise this issue before
appeal, and our review of the certified record reveals that there was no oral
challenge or written post-sentence motion. As a result, Wilkins’s fourth issue
on appeal is waived.
In his fifth and final issue, Wilkins argues that the trial court erred in
admitting evidence that he had attempted to interfere with the testimony of
potential witnesses to the crimes. “[T]he 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.” Commonwealth v.
Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012), appeal denied, 76 A.3d
538 (Pa. 2013) (citations omitted). As noted above, evidence of prior bad
acts is not admissible purely to blacken a defendant’s character. However,
this evidence may be admitted where its probative value outweighs its
potential for unfair prejudice to the defendant.
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Evidence that Wilkins attempted to influence the availability and
testimony of witnesses at his trial was relevant evidence of his
consciousness of guilt. See Commonwealth v. Bradley, 69 A.3d 253, 258
(Pa. Super. 2013). Furthermore, as we noted above, the breadth of the
Commonwealth’s evidence linking Wilkins to the murders supports the trial
court’s conclusion that the jury was not likely to convict Wilkins based
merely upon his proclivity to commit crimes. Rather, this evidence fit clearly
within the Commonwealth’s case that Wilkins was involved in a vendetta
against the victims that led to the victims’ deaths. Wilkins’s final issue on
appeal merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2016
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