J-S91031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZHAIRE N. DEKEYSER :
:
Appellant : No. 675 MDA 2016
Appeal from the Judgment of Sentence March 22, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004545-2014
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 14, 2017
Appellant Zhaire N. Dekeyser appeals from the judgment of sentence
entered by the Court of Common Pleas of Dauphin County after a jury
convicted Appellant of first-degree murder, robbery (commits serious bodily
injury), and conspiracy to commit robbery. Appellant claims the evidence
was insufficient to support his convictions, argues that the trial court abused
its discretion in various evidentiary rulings, and contends that the trial court
abused its discretion in imposing his sentence. We affirm.
The trial court summarized the factual background of this case as
follows:
The trial testimony revealed that [] Dailyl Jones [(“the victim”)],
left his home on Green Street in Harrisburg after receiving a
* Former Justice specially assigned to the Superior Court.
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phone call on the evening of December 12, 2013. [] Tasha
Evans, his live-in girlfriend, [] knew that [the victim] had been
selling “dippers” – a marijuana cigarette dipped in PCP. Ms.
Evans assumed that the telephone call on the evening of [the
victim’s] death had something to do with a drug sale. Ms. Evans
received a call from her cousin at 1:37 a.m. [indicating] that
something had happened to [the victim], and Ms. Evans went to
the crime scene.
Officer Robert Yost responded to [a report of a male who had
been shot sitting in a car] on the evening of December 12 th just
before 11:00 p.m. When Officer Yost arrived at the scene, he
observed a black male lying in the driver’s seat with a good
amount of blood coming out of the vehicle. The male had a
prosthetic leg that was lying near his person, and he had a very
light pulse. Officer Yost immediately requested emergency
services. Officer Yost observed a gold bullet casing in the empty
front passenger seat. Next to the bullet casing was a clear
sandwich bag with a white chunky substance in it, which he
identified as crack cocaine. While Officer Yost was tending to the
victim, he smelled a very “caustic odor,” which he identified as
PCP. In the rear of the floorboard, he found a PCP cigarette, or
“dipper.” Officer Yost also observed the prosthetic leg of the
victim, which was lying on the floor of the car, which looked as
though it had been removed from him, along with a white iPhone
in the center console. After the ambulance came and left the
scene with the victim, Officer Yost ran the license plate on the
vehicle … which revealed that it belonged to [the victim]. It was
ultimately determined that [the victim’s] cause of death [was] a
gunshot wound to the back.
[At trial,] Danzelle Chase was called as a witness. Mr. Chase
testified that he knew [Appellant] through his little brother
Randy. He also testified that he knew a man named George
Brown through his brother … He knew [the victim] by his street
name, which was “Half Nick.” He also knew [the victim] sold
drugs. Mr. Chase testified that he was around on the night that
[the victim] was killed at the corner of Fourth and Woodbine
Streets. Specifically, he said that he witnessed two men
“tussling” with [the victim], and that someone had been
screaming, “Shoot him, shoot him!” [The victim] was shot, and
Mr. Chase ran away. Before he ran, Mr. Chase observed [the
victim’s] prosthetic leg come off during the tussle, and saw
something spill out of it. When asked if George Brown was one
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of the people tussling with Half Nick, Mr. Chase replied yes, and
that it was Mr. Brown who was yelling “shoot him.” Mr. Chase
then testified that the person who fired the shot at [the victim]
was not [Appellant].
At this point in the proceedings, Mr. Chase was asked whether
he testified under oath at the August 28th preliminary hearing.
Mr. Chase responded that he did. Mr. Chase’s preliminary
hearing testimony included the following: “[F]rom across the
street, it was these two gentlemen over here trying to rob Half
Nick, and Half Nick started beating George Brown up, and then
kept screaming … for Zha-Zha to shoot him, and then he shot
him.” When asked at the preliminary hearing if “Zha-Zha” was
referring to [Appellant]. Mr. Chase answered, “Yes.” At that
point [at trial], Senior Deputy District Attorney John Baer
[asked], “[is that] … obviously different than the testimony you
provided here today?” Mr. Chase answered in the affirmative.
Mr. Chase was then questioned about two different statements
he made to police at the Harrisburg City Police Department. The
first statement was taken on May 8 th of 2014 by Detective
Iachini. At that time, Mr. Chase was in state prison for
something completely unrelated to the case at hand. Mr. Chase
testified that he had a counselor in prison by the name of Miss
Paul. Mr. Chase told Miss Paul that he needed to get something
off his chest, which led to him giving a statement to Detective
Iachini about “Half Nick’s” murder. Mr. Chase said in his
statement that he saw George Brown in a tussle trying to rob
Half Nick, and that the other person with them was a guy from
Philly that had the first name “Z.” However, Mr. Chase did not
name him.
A second statement was taken from Mr. Chase by Detective
Iachini on June 20th, 2014, also at the Harrisburg Police
Department. When asked at trial if the June 20th statement was
voluntary, Mr. Chase said it was involuntary, [claiming] that he
was threatened and forced to give it. Attorney Baer reminded
Mr. Chase that at the conclusion of such statement, Detective
Iachini asked Mr. Chase: “Did we do anything that forced you to
come in here today and say, you know, to change your story and
tell us what we want to hear? Mr. Chase [stated] “No.”
Detective Iachini [continued,] “[a]nd … what you are telling us
then because that’s the truth and how it actually happened?”
Mr. Chase [responded,] “Yes.” At trial, the Commonwealth
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reminded Mr. Chase that … [in his June 20th statement, he
identified Appellant as the shooter]. In recapping Mr. Chase’s
testimony, the following exchange took place between Attorney
Baer and Mr. Chase:
Q: You, then in this June statement, Danzelle, you tell
them you were trying to protect [Appellant] initially [in the
May statement], and then you came clean and you named
him in the second statement, right?
A: Right.
Q: That’s what you told Iachini?
A: Right.
Q: And then you went on to the preliminary hearing where
you testified under oath to the exactly the same thing?
A: Right.
[N.T., 1/13/16, at 60-61.]
***
Detective Iachini … testified about that phones that were found
in [the victim’s] vehicle. One was a T-Mobile Sidekick, and the
other phone was a white iPhone. After speaking with [the
victim’s] girlfriend, Detective Iachini determined that the T-
Mobile Sidekick was the one used by [the victim]. It was
suspected by Detective Iachini that the iPhone belonged to
someone who might have been in the car with [the victim]
before he died. After law enforcement left the crime scene,
Detective Iachini received information that George Brown had
posted a photo of a white iPhone on Facebook, along with his
phone number, saying that someone had stolen his phone, or
that he had lost it. Detective Iachini called the phone number
from the Facebook page from his personal cell phone; his
number appeared on the white iPhone as it was ringing,
indicating that it was indeed George Brown’s iPhone. After
searching phone records, it was confirmed that the iPhone was
registered to George Brown’s sister, with whom he was residing
at the time of the murder.
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The phone records also revealed that several calls were made
between George Brown’s and [the victim’s] cell phone numbers,
the last one between the two being made at 10:36 p.m. on the
evening of the homicide initiating from Mr. Brown’s phone to
[the victim’s phone]. The call to the police reporting the
shooting came at 10:45 p.m.
Trial Court Opinion, 9/14/16, at 3-8.
Appellant proceeded to a jury trial that took place on January 12-15,
2016. At the conclusion of the trial, the jury convicted Appellant of first-
degree murder, robbery, and conspiracy to commit murder. On March 22,
2016, the trial court sentenced Appellant to life imprisonment without the
possibility of parole. Appellant did not file a post-sentence motion, but
instead filed a notice of appeal on April 20, 2016. Appellant complied with
the trial court’s direction to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
1. Whether the evidence admitted at trial was sufficient as a
matter of law to sustain Appellant’s convictions for first-
degree homicide, robbery, and conspiracy?
2. Whether the trial court abused its discretion by permitting the
jury to hear evidence that George Brown was convicted of
Dailyl Jones’ murder?
3. Whether the trial court abused its discretion by permitting the
Commonwealth to examine Danzelle Chase as a hostile
witness?
4. Whether the trial court committed reversible error by
selectively publishing an impermissible portion of the court’s
jury instructions to the jury during deliberations?
5. Whether the trial court erred and abused its discretion by
sentencing Appellant to life in prison without the possibility of
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parole without properly considering the factors set forth in 18
Pa.C.S. § 1102.1?
Appellant’s Brief, at 4 (renumbered for review).
Appellant first challenges the sufficiency of the evidences supporting
his convictions for first-degree murder, robbery, and conspiracy to commit
robbery. Our standard of review for a sufficiency challenge is as follows:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Rayner, ---A.3d---, 2016 WL 7474406 (Pa. Super. filed
Dec. 29, 2016).
To sustain a conviction for first-degree murder, the Commonwealth
must prove beyond a reasonable doubt that the defendant committed “an
intentional killing.” 18 Pa.C.S. § 2502(a). An intentional killing is defined as
“[k]illing by means of poison, or by lying in wait, or by any other kind of
willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d).
To sustain a conviction for robbery under Section 3701(a)(1)(i), the
Commonwealth must prove beyond a reasonable doubt that the defendant
“in the course of committing a theft, … inflicts serious bodily injury upon
another.” 18 Pa.C.S. § 3701.
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To sustain a conviction for criminal conspiracy, the Commonwealth
must prove beyond a reasonable doubt 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 intent and (3) an overt act was done in
furtherance of the conspiracy.” Commonwealth v. Knox, 50 A.3d 732,
740 (Pa.Super. 2012) (citations omitted); 18 Pa.C.S. § 903(a)(1)–(2).
Further, this Court has provided that:
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a
shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need not
be, for proof of criminal partnership is almost invariably
extracted from the circumstances that attend its activities. Thus,
a conspiracy may be inferred where it is demonstrated that the
relation, conduct, or circumstances of the parties, and the overt
acts of the co-conspirators sufficiently prove the formation of a
criminal confederation.
Id. We emphasize that “[w]here the existence of a conspiracy is
established, the law imposes upon a conspirator full responsibility for the
natural and probable consequences of acts committed by his fellow
conspirator or conspirators if such acts are done in pursuance of the
common design or purpose of the conspiracy.” Commonwealth v. Fisher,
622 Pa. 366, 377, 80 A.3d 1186, 1192 (2013).
Appellant does not challenge any particular element of the
aforementioned crimes, but claims his conviction cannot stand on the
inconsistent statements of Danzelle Chase, who recanted his identification of
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Appellant as the shooter at trial. Appellant characterizes Mr. Chase as an
inmate who lied in order to get out of jail and suggests that his testimony is
so unreliable that it is insufficient as a matter of law. We emphasize that
questions regarding the reliability of the evidence received at
trial [are] within the province of the finder-of-fact to resolve, and
… [our courts] will not, on sufficiency review, disturb the finder-
of-fact's resolution except in those exceptional instances …
where the evidence is so patently unreliable that the jury was
forced to engage in surmise and conjecture in arriving at a
verdict based upon that evidence.
Commonwealth v. Brown, 617 Pa. 107, 150, 52 A.3d 1139, 1165 (2012)
(citing Commonwealth v. Karkaria, 533 Pa. 412, 419, 625 A.2d 1167,
1170 (Pa. 1993)). Moreover, a conviction may rest entirely on prior
inconsistent statements of witnesses who testify at trial, and such
statements “which meet the requirements for admissibility under
Pennsylvania law, must ... be considered by a reviewing court in the same
manner as any other type of validly admitted evidence when determining if
sufficient evidence exists to sustain a criminal conviction.” Brown, 52 A.3d
at 1171.
Viewing the record in the light most favorable to the Commonwealth,
we reject Appellant’s assertion that this evidence is so patently unreliable
that the jury was forced to engage in surmise and conjecture in arriving at a
guilty verdict. The prosecution presented a cohesive theory supported by
evidence suggesting that Appellant and Brown arranged a fake drug deal to
meet the victim and rob him. The Commonwealth presented phone records
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showing that Brown called the victim’s cell phone several times just minutes
before the murder. As the victim was a drug dealer, his girlfriend inferred
that the individuals calling the victim wanted to engage in a drug
transaction. The victim then met with Brown and Appellant, presumably to
sell them drugs. Mr. Chase, an eyewitness to this meeting, testified that he
observed Brown and Appellant, “tussling” with the victim, heard Brown yell
for Appellant to shoot the victim, and saw Appellant shoot the victim. Police
discovered drugs and Brown’s cell phone in the victim’s vehicle. Accordingly,
we find there was sufficient evidence to enable the jury to conclude beyond
a reasonable doubt that Appellant was guilty of first-degree murder,
robbery, and conspiracy to commit robbery.
Second, Appellant claims the trial court abused its discretion in
allowing the jury to hear evidence that Brown was convicted of the victim’s
murder. Our standard of review for evidentiary matters is well-established:
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. In
determining whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the evidence
against the prejudicial impact of the evidence. Evidence is
relevant if it logically tends to establish a material fact in the
case or tends to support a reasonable inference regarding a
material fact. Although a court may find that evidence is
relevant, the court may nevertheless conclude that such
evidence is inadmissible on account of its prejudicial impact.
Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014)
(citation omitted).
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While Appellant blames the trial court for allowing the jury to hear that
Brown was convicted of the victim’s murder, he fails to recognize that
defense counsel was the first to repeatedly refer to and elicit testimony
about this inadmissible evidence. In fact, on one occasion, defense counsel
actually asked Detective Iachini directly if Brown had been found responsible
for the victim’s death:
[Defense counsel]: You initially charged two individuals[?]
[Detective Iachini]: That’s correct.
[Defense counsel]: You charged [Appellant] and George Brown?
[Detective Iachini]: That’s correct.
[Defense counsel]: George Brown was subsequently convicted
for the homicide of [the victim], correct?
[Prosecutor]: Judge, I object to that. I am not sure that’s
relevant.
[Trial court]: Are you going to go much farther with that?
[Defense counsel]: That was all, sir.
[Trial court]: Move on with your cross.
[Defense counsel]: Can he answer, Your Honor?
[Trial court]: Yes, you can answer.
[Detective Iachini]: That’s correct.
N.T. Trial, 1/14/16, at 78-79. Although the prosecutor tried to object to
prevent Detective Iachini from referring to Brown’s conviction, defense
counsel insisted being allowed to elicit this testimony. We fail to see how
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Appellant can claim the trial court committed reversible error when defense
counsel was responsible for the admission of the inadmissible evidence to
the jury. As a result, we find this claim to be meritless.
In his third and fourth claims, Appellant argues that the trial court
“abused its discretion by permitting the Commonwealth to examine Danzelle
Chase as a hostile witness” and “committed reversible error by selectively
publishing an impermissible portion of the court’s jury instructions to the
jury during deliberations.” Appellant’s Brief at 4. However, Appellant
concedes that he did not raise these claims before the trial court by making
a timely objection. Our rules of appellate procedure provide that “[i]ssues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). This Court has further provided:
Issue preservation is foundational to proper appellate
review....By requiring that an issue be considered waived if
raised for the first time on appeal, our courts ensure that the
trial court that initially hears a dispute has had an opportunity to
consider the issue. This jurisprudential mandate is also grounded
upon the principle that a trial court ... must be given the
opportunity to correct its errors as early as possible. Related
thereto, we have explained in detail the importance of this
preservation requirement as it advances the orderly and efficient
use of our judicial resources. Finally, concepts of fairness and
expense to the parties are implicated as well.
Commonwealth v. Miller, 80 A.3d 806, 811 (Pa.Super. 2013) (quoting In
re F.C. III, 607 Pa. 45, 2 A.3d 1201, 1212 (2010) (citations omitted)). As
Appellant failed to raise these issues before the trial court, they are waived.
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Lastly, Appellant claims the trial court abused its discretion by
sentencing Appellant to life in prison without parole without properly
considering the factors set forth in 18 Pa.C.S. § 1102.1, which instructs the
court to consider mitigating circumstances, including age-related factors, in
determining whether to impose a sentence of life imprisonment without
parole on a juvenile. Our legislature enacted Section 1102.1 in response to
the United States Supreme Court’s decision in Miller v. Alabama,
___U.S.___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which invalidated
mandatory life sentences for juvenile offenders.
Our court has viewed a challenge to the trial court’s weighing of
sentencing factors, including mitigating factors listed in Miller, as a
challenge to the discretionary aspects of sentence. Commonwealth v.
Seagraves, 103 A.3d 839, 841 (Pa.Super. 2014). However, “issues
challenging the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Commonwealth v. Cartrette, 83 A.3d
1030, 1042 (Pa.Super. 2013). As Appellant did not raise this issue at
sentencing and did not file a post-sentence motion, this claim is also waived.
For the foregoing reasons, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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