Com. v. Williams, K.

J-S53009-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN WILLIAMS :
:
Appellant : No. 355 EDA 2018

Appeal from the PCRA Order January 17, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002781-2011

BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED OCTOBER 15, 2018

Appellant, Kevin Williams, appeals from the order dismissing his

counseled first petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546. Appellant claims ineffective assistance of counsel. We affirm,

in part on the basis of the PCRA court opinion.

In its opinion, the PCRA court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we need not restate them

at length here. We note for the convenience of the reader that a jury convicted

Appellant of murder of the third degree, criminal conspiracy, and three counts

of robbery. Appellant acted as the driver in an armed street robbery of three

victims, strangers who happened to be walking down the street. When one

of the three victims resisted, he was shot and killed.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S53009-18

The sentencing court noted that in imposing Appellant’s sentence it was

informed by the pre-sentence investigation report (PSI). (See PCRA Court

Opinion, 2/22/18, at 13). The court imposed an aggregate sentence of not

less than thirty-five years and not more than seventy years of incarceration

in a state correctional institution. The court also denied Appellant’s post-

sentence motion. This Court affirmed the judgment of sentence on direct

appeal. (See Commonwealth v. Williams, 2015 WL 6870629, at *7 (Pa.

Super. filed Nov. 6, 2015) (unpublished memorandum)). Appellant did not

petition for allowance of appeal to our Supreme Court.

In this collateral appeal, Appellant claims ineffective assistance of

counsel.1 Appellant presents three issues for our review. We reproduce

Appellant’s claims verbatim:

Was the Appellant denied effective assistance of counsel at
trial, sentencing and on direct appeal?

1. Failure to object to Bruton violation;

2. Failure to object to flawed jury instructions
regarding Murder of the Third Degree; and

3. Failure to object to harsh sentence imposed without
reasons.

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).2

____________________________________________

1We note that Appellant’s brief incorrectly refers to this proceeding as a “direct
appeal.” (Appellant’s Brief, at 4).

2 See Bruton v. United States, 391 U.S. 123 (1968).

-2-
J-S53009-18

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the PCRA court, we conclude

that there is no merit to the first claim that Appellant has raised. The PCRA

court opinion properly disposes of the issue presented. (See PCRA Ct. Op.,

at 4-8) (concluding: (1) co-conspirator’s statement was properly redacted,

comported with precedent, and was fittingly admitted with cautionary

instructions to the jury).

With respect to the second and third claims, we note that Appellant has

failed to insure that the certified record included the transcripts of the

proceedings which Appellant now challenges on appeal. Specifically, Appellant

has failed to include the jury instructions now claimed to be erroneous, and

the transcript of the sentencing hearing, at which he claims the sentencing

court imposed a harsh sentence. These omissions are substantial, because

they preclude any meaningful review of Appellant’s specific claims.

The fundamental tool for appellate review is the official
record of the events that occurred in the trial court. To ensure
that an appellate court has the necessary records, the
Pennsylvania Rules of Appellate Procedure provide for the
transmission of a certified record from the trial court to the
appellate court. The law of Pennsylvania is well settled that
matters which are not of record cannot be considered on appeal.
Thus, an appellate court is limited to considering only the
materials in the certified record when resolving an issue. In this
regard, our law is the same in both the civil and criminal context
because, under the Pennsylvania Rules of Appellate Procedure,
any document which is not part of the officially certified record is
deemed non-existent—a deficiency which cannot be remedied
merely by including copies of the missing documents in a brief or
in the reproduced record. The emphasis on the certified record is
necessary because, unless the trial court certifies a document as

-3-
J-S53009-18

part of the official record, the appellate judiciary has no way of
knowing whether that piece of evidence was duly presented to the
trial court or whether it was produced for the first time on appeal
and improperly inserted into the reproduced record. Simply put,
if a document is not in the certified record, the Superior Court may
not consider it.

Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa. Super. 2006), appeal

denied, 916 A.2d 632 (Pa. 2007) (citations omitted).

Accordingly, Appellant has waived his second and third claims.3

Moreover, even if Appellant’s claims were reviewable, under generally

applicable legal principles, we would affirm on the basis of the PCRA court’s

opinion. (See PCRA Ct. Op., at 7-14) (concluding counsel properly declined

to object to jury charge which, read in its entirety, was clear, adequately and

correctly reflected the law, and was more than sufficient to guide jurors

through their deliberations; and sentencing judge properly sentenced

Appellant after review of PSI).

Order affirmed.

____________________________________________

3 See also Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009), appeal denied, 987 A.2d 161 (Pa. 2009) (sentencing judge can satisfy
requirement that reasons for imposing sentence be placed on record by
indicating that she has been informed by pre-sentencing report; thus properly
considering and weighing all relevant factors).

-4-
J-S53009-18

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/18

-5-
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COMMONWEAL TH OF PENNSYLVANIA CRIMI*A;:Iit'[,l}ft\�i}?-\•. ISION

v. 355 EDA 2018

KEVIN WILLIAMS CP-51-CR-0002781-2011

CP-51-CR-0002781-2011 Comm. v, Wiiiams. Kevin
Opinion
OPINION

O'KEEFE,J. 11111111111111111 I I 111111
8072814711
·--�. .:»

Kevin Williams appeals from the order denying his Post Conviction Relief Act Petition

(hereinafter referred to as "PCRA" for .he sake of brevity' pursuant to 42 Pa.C.S. § 9541 et seq.

,;'ROCEDURAL HISTORY:

On November 12, 2010, Kevin Williams .vas arrested and charged with murder, criminal
• I
I

conspiracy (three counts), robbery (three counts), violation of the Uniform: Firearms Act (two

counts), attempted theft (two counts), simp:\t assault (two counts), recklessly endangering another

person (twc counts) and possessing the instrument of a crime (three counts).'. The defendant was

bound over for court on all charges following a prfCir.Ainary he.ring on t-.Jarc'18, 2011. The first

jury trial commenced September 2 7, 2012, cone] uding in a mistrial. The second panel was selected
I

. I
en November 18, 2013, with the jury convicting Williams ofwu1..-der of the third degree, criminal

conspiracy and three counts of robbery on November 261h. The defendant was sentenced to twentv
to forty years' incarceration for murder of the third degree, a consecutive five to ten years for

criminal conspiracy, a consecutive ten to twenty years for the first robbery, and five to ten years

concurrent for each of the �ther robbery counts for an aggregate sentence of thirty-five to seventy

years imprisorunent. On November 6, 2015, the Pennsylvania Superior Court affirmed the judg-
'
I
ment of sentence. Commonwealth v. Williams, 1802 EDA 2014 (Pa.Super. 20.15). No petition for
)

allowance of appeal was filed with our Supreme Court.

A counseled PCRA petition was filed on December 1, 2016. Thejprosecution filed a

Motion to Dismiss on July 31, 2017, to which the defendant responded on November 141h. After

an independent review of the record, a Rule 907 Notice of Intent to Dismiss was mailed to the
'

defendant and all counsel. Williams objected, and after another review of the record, the defend-

ant's PCRA petition was dismissed on January 17, 2018. 'When a counseled Notice of Appeal was

filed on January 25th, an order pursuant to Pennsylvania Rule of Appellate Pr�cedure I 925(b) was

served upon counsel, requiring a statement of matters complained of on appeal to which the de-

fendant timely responded.

I
STANDARD OF REVIEW: . i
l

When reviewing an order denying a PCRA petition, an appellate court looks to whether

the PCRA court's decision is supported by the evidence of record and is free of legal error. Com-

monwealth ·v. Spatz, 624 Pa. 4, 84 A.3d 294 (2014). On questions of law, the standard of review

is de nova and the scope ofreview is plenary. Commonwealth v. Henkel, 90 AJd 16, 20 (Pa.Super.

2014). The court willgrant great deference to the factual findings of the PCRA court and will not

disturb those facts unless theyhave no support in the record. Id.

2
FACTS:

The trial court fittingly summarized the pertinent facts as follows:

On October 20, 2010, Appellant, Kevin Williams, in�ited
co-defendant, Dawud Abdul-Hakim ("Abdul-Hakim"), and an uni-
dentified male to smoke weed in his car. While sitting in Appel-
lant's car, Abdul-Hakim said he wanted to try to Rob somebody be-
fore he went home, and the unidentified male wanted to do the same.
Abdul-Hakim had a .40 caliber Glock pistol on his person. At ap-
proximately 11 :20 PM, Appellant was driving west on Jackson
Street in the City and County of Philadelphia when Abdul-Hakim
suggested they Rob three (3) men they saw walking north on Second
Street towards Jackson Street. The three (3) men walking north on
Second Street were childhood friends Jason Moncrief ("Monctjef''),
Andrew Lillie ("Lillie") and Decedent, Anthony DeMarco Jr. ("De-
Marco"). The unidentified male told Appellant to. stop the car; said
he would be right back, and instructed Appellant to stay there., Ab-
dul-Hakim and the unidentified male exited Appellant's car on to
the sidewalk ahead of Moncrief, Lillie, and DeMarco, and walked
I·
slowly so the three (3) men could catch up. Appellant backed his
car onto nearby Philip Street where he could see Moncrief, I)Ilie,
DeMarco, Abdul-Hakim, and the unidentified male. Appellant kept
his car running in the middle of Philip Street and turned off his head-
lights.
As the two (2) groups converged, the unidentified rnale
grabbed Moncrief and Abdul-Hakim grabbed DeMarco, holding
DeMarco at gunpoint. The unidentified male and Abdul-Hakii:n di-
rected Moncrief, Lillie, and DeMarco to give up their money,
whereupon the unidentified male went into the pockets of Moricrief
and retrieved $50. DeMarco refused to comply and was hit in the
back of the neck with the gun by Abdul-Hakim. DeMarco then be-
gan to fight Abdul-Hakim, punching him repeatedly and wrestling
Abdul-Hakim to the ground. During the fight Abdul-Hakim
dropped the gun. The unidentified male picked up the gun, told De-
Marco to get off of Abdul-Hakim, theri fired six (6) shots at De-
Marco, hitting him four (4) times and hitting Abdul-Hakim once (I)
· in the left hip. Lillie and Moncrief subsequently ran south on-Sec-
ond Street, Appellant drove west on Jackson Street, while Abdul-
Hakim and the unidentified male ran west on Jackson Street. ,
'
DeMarco was shot one ( 1) time in the left flank; one ( 1} time

3

I .\
 in the left hip; one (1) time in the mid back, where the bullet frac-
tured a vertebra, then passed through the thorax, esophagus, heart
and sternum; and one ( 1) time in the upper left back, injuring his
lung. DeMarco was transported to Thomas Jefferson University
. Hospital, where he was pronounced dead at 12 :07 AM by Dr. Jeno ff.
An autopsy was performed by AssistantMedical Examiner Dr. Aa-
ron Rosen, who determined the cause of death was multiple gunshot
wounds. The manner of death was found to be homicide. At the
time of his arrest, Appellant made a detailed statement after receiv-
ing his Miranda warnings.
(Slip Opinion I 1-10-14, pp. 2-4)

LEGAL DISCUSSION:

Ineffective Assistance of Counsel
I
The standard and scope of review for the denial of a PCRA petition is well-settled. The

appellate court examines a PCRA appeal in the light most favorable to the prhvailing party at the
I ,

PCRA level. The court's review is limited to the findings of the PCRA court and the evidence of

record. Additionally, the reviewing court grants great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support i� the record. In this

respect, the appellate court will not disturb a PCRA court's ruling if it is supported by evidence of

record and is free of legal error. . However, where the petitioner raises questiors of law, the stand-
'
ard of review is de novo and the scope of review is plenary. Commonwealth v. Henkel, 90 A.3d

16, 20 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks

omitted).

Williams claims he is entitled to relief because trial counsel was ineffective. The law is

'
crystal clear that counsel is p�esumed effective and a defendant claiming ineffective assistance of

counsel bears the burden of proving otherwise. Commonwealth v. Fears, 624 Pa. 446, 86 A.3d

4
795 (2014); Commonwealth v. Cross, 5;35 Pa. 38, 634 A.2d 173 (1993). In order to overcome this

presumption, a defendant must meet a three component standard set forth in Stricklandv. Wash-

ington, 466 U.S. 668, (1984 ): First, the underlying claim must have arguable merit. Commonwealth

v. Rollins, 558 Pa. 532, 542, 738 A.2d 435, 441 (1999); Commonwealth v. Travaglia, 541 Pa. 108,

661 A.2d 352, 356 (1995). Second, no reasonable basis must exist for counsel's actions or failure
�
to act. In making this determination, the appellate court does not question whether there was a
i

more logical course of action which counsel could have pursued, but rather dih counsel's decision
'
' 738 A.2d at 441.
have any reasonable basis. Commonwealth v. Rollins, supra, 558 Pa. at 54�,
. I
I
Lastly, the defendant must establish that the he suffered prejudice because of counsel's error, such

that there is a reasonable probability that the outcome of the proceeding would have been different

absent such an error. Commonwealth v. Fears, supra 642 Pa. at 461, 86 A.3d at 804; Common-

wealth v. Lesko, 609 Pa. 128, 15 A.3d.345, 373-74 (2011) (citing Commonwealth v. Pierce, 515

Pa. 153, 527 A.2d 973, 975 (1987)). It is not enough for the defendant to claim that counsel could
''
have taken different steps, but rather, he must prove that counsel's strategy was "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Dunbar, 503 Pa. 590, 470

A.2d 74, 77 (1983); Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764, 775 (1986). Counsel

is presumed to have rendered effective .assistance, and, if a claim fails under any required element
I

of the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Vandivner,

634 Pa. 482, 490, 130 A.3d 676, 680 (2015). To obtain relief under the PCRA� based upon a claim

of ineffective assistance of counsel, a petitioner must establish by a preponderance of evidence
I
I
I
that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adju-
1
'
dication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(d)(2)(ii).
I

5
 J.

Bruton v. United States1

Williams alleges that trial counsel was ineffective in failing to object to Detective Harkins

reading a redacted statement by the co-defendant, Mr. Abdul-Hakim. Hereafter is the complained

of testimony:

"On that night, I don't remember the day of the week, but
there was a Phillies playoff game on. Me and two other guys were
out just driving around. We were smoking in the car and wentover
under the bridge. That's 1-95. We were there for awhile and then
just drove around. '
None of us had any money in our pockets, and we saw three
guys walking up Second Street. We figured we could rob them and
get some money. I

I was like, let's get 'em. And we pulled the car up the block
to get ahead of them, and me and another guy got out of the car. The
driver of the car pulled over, and me and the other guy walked up
the block towards Third Street. We were walking slow so the three
guys could catch up to us."

(N.T. 11/22/2013, p.164). When the detective concluded his testimony regarding the statement of

the co-defendant, the court, sua sponte, cautioned the jury:
:,
"Now ladies and gentlemen of the jury, I just want to give
you a cautionary instruction. You've just heard the detective read a
statement that is attributed to one of the defendants in this matter.
That statement, the content of the statement, may only be 'used
against the person who made the statement." ·

(N.T. 11/22/2013, p. 172. Furthermore, the court admonished the jurors in her charge:

"You have also heard evidence that each defendant m�de a
statement to the police. I instruct you that the contents of each state-
ment can only be used against the maker of the statement. So the
statement attributed to Defendant Williams can only be used against
him, and the statement attributed to Defendant Abdul-Hakim can
only be used against him."

1
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)

6
 . I

(N.T. 11-25-2013, p. 55). Williams contends that these instructions were too Iittle too late.

Bruton, supra, and its progeny stand for the proposition that a defendant is deprived of his

rights under the Confrontation Clause when a non-testifying co-defendant's statement, naming the
I

defendant as a participant in the crime, is introduced at trial, and that a cautionary instruction may

not be sufficient to eradicate prejudice against the defendant. Bruton v. United States, supra; Rich-

ardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Gray v. Maryland, 523
I
I

U.S.185, 118 S.Ct.1151, 1401.Ed.2d294(1998). Thissamelineofcasesestablishthatifaco-

defendant's statement can be redacted to omit the defendant's name, without obviously revealing

the omission, a jury instruction to consider the statement only against the co-defendant who made
. '

it, is presumptively sufficient to protect a defendant's constitutional right of confrontation. Gray

v. Maryland, supra; Commonwealth v. Travers, .564 Pa. 362, 768 A.2d 845, 851 (2001). Substi-
'
I
tuting a neutral phrase such as "the other guy" for the defendant's name is an appropriate redaction,

with a limiting instruction and is sufficient to protect the defendant's confrontational rights. Com-
,1,·
monwealth v. Miller, 572 Pa. 623, 819 A.2d 504, 511-13 (2002); Commonwealth v. Cannon, 610
'

Pa. 494, 22 A.3d 210, 218 (2011 ); Commonwealth v. Travers, 564 Pa 362, 768 A.2d 845, 850-851
I

I
(2001); Commonwealth v. James, 66 A.3d 771, 777-78 (Pa.Super. 2013); Commonwealth v.
I

McGlone, 716 A.2d 1280, 1285 (Pa.Super. 1998).
I
statement
A review of the record clearly demonstrates that Abdul-Hakim's was properly
I

redacted, comported with precedent and was fittingly admitted with cautionary instructions to the
. \
Jury. The introduction of such evidence is squarely within the trial court's discretion and as the

7
court properly admitted the redacted statement, counsel cannot be faulted for not objecting. Like-

wise, appellate counsel cannot be denounced for failing to raise a meritless issue. See Common-

wealth v. Robinson, 581 Pa. 154, 202, 864 A.2d 460, 488 (2004) ..

Supplemental Jury lnstruclion

Williams next complains that the trial court's supplemental jury instruction was confusing,

ambiguous and misleading, and that counsel was ineffective in failing to object to those instruc-

tions. The defendant asserts that the trial court, when asked to clarify the elements of third degree

murder erred in its description of malice; failing to explain that the defendant was accused of

merely acting as the getaway driver, and omitting the phrase "beyond a reasonable doubt".

When reviewing a challenge to a portion of the jury charge, the appellate court must review

the jury charge as a whole to determine if it is fair and complete. A trial court has wide discretion
r

in how it phrases its instructions, as long as it clearly, adequately and accurately presents the law

to the jury. The court commits an abuse of discretion only when there is an inaccurate statement

ofthe law. Commonwealth v. Conaway, 105 A.3d 755, 760-61 (Pa.Super. 2014); Commonwealth

v. Roser, 914 A.2d 447, 455 (Pa.Super. 2006). The standard of review of at"challenged jury in-

struction is well-settled:

When reviewing jury instructions for reversible error, an appellate
court must read and consider the charges as a whole. We will uphold
an instruction if it adequately and accurately reflects the law and is
sufficient to guide the jury through its deliberations. Error will not
be predicated on isolated excerpts. Instead, it is the general effect
of the charge that controls. An erroneous charge warrants the grant
a
of a new trial unless the reviewing court is convinced beyond rea-
sonable doubt that the error is harmless.

8
 I

Commonwealth v. Ketterer, 725 A.2d 801, 804-805 (Pa.Super. 1999) (citing Commonwealth v.

Nichols, 692 A.2d 181, 186 (Pa.Super. 1997)).

A trial court is bound to charge a jury on the correct legal principles applicable to the facts

presented at trial. Commonwealth v. Cox, 546 Pa. 515, 686 A.2d 1279 ( 1996). The trial court has

broad discretion in how it phrases its instructions to a jury, so long as the law is clearly, adequately
I

and accurately presented to the jury for its consideration. Commonwealth v. Cfibson, 553 Pa. 648,
)
"1

665, 720 A.2d 473, 481 (1998) (citing Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492
. I
(1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998)).
I
I
i.

The trial court instructed the jury on third degree murder as follows: i
"Now the third type of murder that both defendants are. fac-
ing is murder in the third degree. This is defined as any killing with
malice that is not first or second-degree murder.
.
To find either defendant guilty of this offense, you must find
that the following three elements have been proven beyond a rea-
sonable doubt: .•
'
First, you must be satisfied that Anthony DeMarco is dead.
Secondly, you must be satisfied that the unnamed co-conspirator and
Dawud Abdul-Hakim and Kevin Williams killed him, and youmust
be satisfied beyond a reasonable doubt that the unnamed colcl on-
spirator and Dawud Abdul-Hakim and Kevin Williams did so with
malice. ·
I
The word malice as I am using it has a specific meaning. As
I have told you, it does not mean simply hatred, spite, or ill 'will.
Malice is a shorthand way of referring to a particular mental .state
that the law regards as being bad enough to make a killing murder.
For murder in the third degree, the killing is with malice if
the perpetrator's actions show their wanton and willful disregard of
an unjustified and extremely high-risk that his conduct would result
in death or serious bodily injury to another.
In this form of malice, the Commonwealth need not prove
that the perpetrator specifically intended to kill another. The Com-
monwealth must prove, however, ·that the perpetrator took actions

9
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I
1
I
,
I
!'
I
 l
while consciously - that is, knowingly - disregarding the most seri-
ous risk they were creating, and that by disregarding that risk, the
perpetrators demonstrated their extreme indifference to the value of
human life.
When deciding whether the unnamed co-conspirator and
Abdul-Hakim and Williams acted with malice, you should consider
all of the evidence regarding their words, conduct, and the attending
circumstances that may show their state of mind."

(N.T. 11-25-2013, pp. 36-38).

\
When the jury asked to. clarify the second element of the third degree murder charge, the
.
court advised that each defendant had been charged with third degree murder. and as such,

"Now again, this is a charge where you have to make a deci-
sion as to each defendant, a separate decision as to each defendant.
All right. So it doesn't matter which defendant you take first, which
one you consider first, but you have to make your decision as to each
defendant.
· So the elements are these: ... You have to be satisfied first
that Mr. DeMarco is dead. You have to be satisfied that the un-
named co-conspirator and Mr. Abdul-Hakim killed Mr. DeMarco.
And third, you have to be satisfied that the unnamed co-conspirator
and Mr. Abdul-Hakim did so with malice. Once you've made that
set of decisions, put that aside. :
questions
Then you go back, and you ask those same three
as it relates to Mr. Kevin Williams. \

So for murder in the third degree, there are three partsto it:
You have to answer each of the three parts separately for each de-
fendant. All right. II
So this time, I'll give the example. Let's say you're consid-
ering Kevin Williams. You have to decide as to Kevin Williams,
are you satisfied that Anthony DeMarco is dead? iI

Then you have to decide for Kevin Williams, are you satis-
1

fied that the unnamed co-conspirator and Mr. Williams killed him?
Then you have to satisfy - you have to be satisfied thirdly
that Mr. Williams and co-conspirator did so with malice.

10
(N.T. I 1-26-2013, pp. 8-10).

As to the assertion that Mr. Williams was merely the getaway driver, the court charged the

jury as to accomplice liability as follows:

The next section that I'm going to read is the instruction re-
garding accomplice liability. There is a way that one defendant can
be proven liable for the conduct of another person or persons. · That
is where the defendant is an accomplice of a person who actually
commits the crime at issue.
To be an accomplice, a person does not have to agree to help
someone else. A person is an accomplice if he on his own acts or
helps the other person commit the crime. More specifically, you
may find the defendant is an accomplice of another in this case if
the following two elements are proven beyond a reasonable doubt.
I

First, that the defendant had the intent of promoting arid fa-
cilitating the commission of the offense ofrobbery; and second, that
the defendant aided, agreed to aid, or attempted to aid the other per-
! .
• • . . f
son m commrttmg it.
Accomplice liability must be assessed separately for each of
the crimes charged. If two or more crimes are committed and the
defendant before you is being charged as an accomplice for each of
these crimes, he may not be found guilty unless it is shown 'as to
each individual crime that this defendant had the intent of promoting
the specific crime and then aided, agreed to aid, or attempted to aid
the other person in planning or committing it. ·
In other words, you must decide whether the prosecution
proved beyond a reasonable doubt that each defendant was an ac-
complice in the first crime, and then go on to make a determination
as to whether - the second crime charged in this matter.
It is important to understand that a person is not an accom-
plice merely because he is present when a crime is committed or
knows a crime is being committed. To be an accomplice, a defend-
ant must specifically intend to help bring about the crime by assist-
ing another in its commission.
A person who is an accomplice will not be responsible for a
crime if and only if the person, before the other person commits the
crime, either stops his own efforts to promote or facilitate the com-
mission of the crime or - and either wholly deprives his previous

11
 efforts of effectiveness in the commission of the crime or gives
timely warning to law enforcement authorities or otherwise makes a
proper effort to prevent the commission of the crime."

(N.T. 11-25-2013, pp. 47-49).

Obviously, when read in its entirety, the charge to this jury was clear, adequately and cor-

rectly reflected the law and was more than sufficient to guide the jurors through their deliberations.

As such, counsel cannot be faulted for failing to object at trial, nor can appellate counsel be dis-

credited for not raising the issue on appeal.

Discretionary Aspects of Sentencing
;
Lastly, the defendant asserts that his sentence was excessive and unreasonable. An appeal

of a sentence is only permitted when the reviewing court determines that there is a substantial
'
I

question as to the appropriateness of the sentence. Commonwealth v. Boyer; 856 A.2d 149, 151-
I
52 (Pa.Super. 2004). The court's determination of appealability is made on a case-by-case basis.

When evaluating if a sentence is manifestly excessive, the appellate court givds
!
great weight to the

sentencing court's discretion, as that court is in the best position to measure factors such as the
\
l
nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or
I
indifference. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.Super. 1997).

It is well-settled that "sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion." Com-

monwealth v. Johnson, 446 Pa.Super. 192, 197, 666 A.2d 690, 693 (1995) (quoting Commonwealth

v. Dotter, 403 Pa.Super. 507, 516, 589 A.2d 726 (1991)). "To be a manifest abuse of discretion,

a sentence must either exceed the statutory limits or be manifestly excessive. The discretion of a

12

',
'i,
 i
i
trial judge must be accorded great weight because he is in the best position to weigh such factors

as the nature of the crime, the defendant's character, and the defendant's displays of remorse,

defiance, or indifference." Commonwealth v. Minnott, 395 Pa.Super. 552, 554, 577 A.2d 928, 929

(1990).

After reviewing the pre-sentence investigation reports, the trial court sentenced the defend-
'
ant to twenty to forty years' incarceration for the offense of Third degree Murder, ten to twenty

years consecutive for the robbery of Anthony DeMarco, Jr. with five to ten years concurrent for

the second robbery, and five to ten years consecutive for criminal conspiracy; hence an aggregate

sentence of thirty-five to seventy years' incarceration. The maximum the defendant could have

received was sixty to one hundred and twenty years.

In determining whether a sentence is inappropriate, the appellate
.
courts
I
look to whether
. '

the sentence prima facie appears excessive, based on the criminal conduct that occurred in the

case. Commonwealth v. Dodge, 77 A.3d 1263, 1269 (Pa.Super. 2013); Commonwealth v. Gonza-

lez-Dejusus, 994 A.2d 595, 599, (Pa.Super. 2010).

"Our Supreme Court has held that where a pre-sentence report exists,; we shall 'presume

that the sentencingjudge was aware of the relevant information regarding the defendant's character

and weighed those considerations along with the mitigating statutory factors.'?' Commonwealth v.
i
McKiel, 427 Pa.Super. 561, 565, 629 A.2d 1012, 1013-14 (1993) (quotin{ Commonwealth v.

Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 ( 1988)). "Having been fully informed by the presen-
'
tence report, the sentencing court's discretion should not be disturbed." Id.
I
l·
I

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The presentence report noted that Williams had been under juvenile 'supervision up until

approximately one month prior to this offense; that this defendant had refused to attend drug treat-

mentor meet with his social worker; that he had refused to attend school; he quit an apprenticeship

program after one month; had been selling drugs since he was seventeen; expressed no remorse;

did poorly under juvenile supervision and was uncooperative with his probation officer. The trial

court reviewed the pre-sentence reports on the defendant, along with all of the evidence presented

before sentencing the defendant.
I

I
Williams produced no evidence that the sentence imposed was either inconsistent with a

specific provision of the sentencing code or contrary to the fundamental norms which underlie the

sentencing process and as such, there is no substantial question. Commonwealth v. Sierra, 752
I

A.2d 910, 912 (Pa.Super. 2000). Moreover, it is important to note that the·, defendant does not

mention that the sentence imposed was within the sentencing guidelines2 as well
I
as in compliance

with the Sentencing Code3. As such, neither trial counsel nor appellate counsel can be faulted for

failing to raise these issues.

I
Accordingly, the court acted within its discretion in dismissing the: PCRA petition and

should be affirmed.

BY THE COURT:·
t

DA TE: February 22, 2018

2
204 Pa. Code §303. I et seq.
3
42 Pa.C.S. §§ 9701-9781.

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• I I 4

IN THE COURT OF COMMON.PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA CRIMINAL TRIAL DIVISION

v. 355 EDA 2018

KEVIN WILLIAMS CP-51-CR-0002781-2011

Proof of Service

I hereby certify that l am on this day serving the foregoing Court's Opinion upon the person(s),
and in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114:

Defense Attorney: Burton Rose, Esquire
1731 Spring Garden Street
Philadelphia, PA 19130-3893
i
Type of Service: ( ) Personal (X) First Class Mail ( ) Interoffice ( ) Other, please specify
!

District Attorney: Appeals Unit
District Attorney's Office
3 South Penn Square
Philadelphia, PA 19107
'
!
Type of Service: ( ) Personal ( ) First Class Mail (X) Interoffice ( ) Other, please specify

Date: February 22, 2018

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