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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHAYVON AKEEM MO MORGAN, : No. 625 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered January 3, 2019,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0002985-2017
BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 23, 2020
Shayvon Akeem Mo Morgan appeals the January 3, 2019 judgment of
sentence, entered in the Court of Common Pleas of York County, after a jury
convicted him of receiving stolen property; criminal conspiracy to
manufacture, deliver, or possess with intent to manufacture or deliver;
firearms not to be carried without a license; and in persons not to possess a
firearm.1 The trial court sentenced appellant to an aggregate term of 6 to
13 years’ incarceration. We affirm.
The following facts were gleaned from the trial court’s Rule 1925(a)
opinion: Appellant and his co-conspirator, Dysheem Jones, fled from the
scene of an automobile accident and ran towards Rutter’s Dairy. There,
118 Pa.C.S.A. §§ 3925(a), 903(a)(1) (35 P.S. § 780-113(a)(30)), 6106(a)(1),
and 6105(a)(1), respectively.
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appellant and Jones approached Dennis Hoke, a Rutter’s employee, and
offered him $100 to give them a ride out of the area. When Hoke asked
appellant and Jones where they wanted to go, they responded “anywhere but
here.” Hoke described their demeanor as being “very, very nervous.”
Although Hoke saw neither appellant nor Jones deposit anything on the
ground, after they left the area Hoke observed a clear plastic bag of marijuana
and another bag of a white powdery substance, consistent with crack cocaine,
lying on their path. (Trial court opinion, 11/8/19 at 3-5.)
Appellant and Jones proceeded to enter a Budget Rental. When asked
by the manager, Joseph Charles, if he could help them, they responded that
they were waiting for their girl to come. Then appellant went into the
bathroom, and Jones went into a backroom. Charles asked Jones if he could
be of assistance, and Jones replied that he was just leaving. Charles informed
Jones that the back door was locked. While Jones was attempting to exit
through the front door, State Trooper Patrick Kelly was entering the building.
Jones was taken into custody. A search revealed Jones was in possession of
cocaine, heroin, and marijuana. (Id. at 5-6, 9.)
Appellant exited the bathroom and surrendered to Trooper Kelly.
Although no drugs were found on his person, he was in possession of $506 in
cash. Shawn Chambers, a Budget employee, testified that she had cleaned
the bathroom the previous day. She stated that she put the bathroom trash
can near the bathroom door with a new trash bag draped over its side. When
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she returned the day of the incident, she put in the new bag. At that time, all
that was in the trash can were some paper towels. Chambers further testified
that no one had entered the bathroom prior to appellant. Trooper Richard
Sentak testified that he searched the bathroom and recovered a firearm from
the trash can. The firearm was operable and appellant was ineligible to
possess a firearm. (Id. at 6-10.)
On September 20, 2018, a jury convicted appellant of all counts.
Appellant was sentenced on January 3, 2019. Timely post-sentence motions
were filed and denied by the trial court. Appellant timely appealed. The trial
court ordered appellant to file a concise statement of errors complained of on
appeal, pursuant to Pa.R.A.P. 1925(b), and he timely complied. Thereafter,
the trial court filed its Rule 1925(a) opinion.
Appellant complains that the trial court abused its discretion when it
denied his request for a prior inconsistent statement instruction.2
2 Appellant inartfully frames his issue as follows:
[Whether t]he trial court abused its discretion when it
denied [a]ppellant’s request for a jury instruction on
prior inconsistent statements[?] A key
Commonwealth witness provided a substantially
different statement at trial implicating [a]ppellant in
criminal activity compared to the statements provided
prior to trial. The instruction on prior inconsistent
statements was appropriate under the circumstances
and not harmless error.
Appellant’s brief at 4.
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“[O]ur standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court’s
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Galvin, 985 A.2d 783, 798-799 (Pa. 2009).
Under Pa.R.Crim.P. 603 and 647(C),
the mere submission and subsequent denial of
proposed points for charge that are inconsistent with
or omitted from the instructions actually given will not
suffice to preserve an issue, absent a specific
objection or exception to the charge or the trial court’s
ruling respecting the points [for charge].
Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa. 2015).
Here, appellant’s counsel requested a charge on prior inconsistent
statements. (Notes of testimony, 9/18/18 at 279-281.) The trial court denied
counsel’s request, and counsel did not object or take exception to the ruling.
(Id., at 286.) Following the jury charge, the trial court inquired as to whether
counsel had anything further and counsel did not object or take exception to
the charge. (Id. at 363.) Appellant, therefore, waived his challenge to the
jury charge.3
Judgment of sentence affirmed.
3 Even if a specific objection had been lodged, this claim still fails because the
evidence did not support the charge. See Commonwealth v. Buterbaugh,
91 A.3d 1247, 1257 (Pa.Super. 2014) (noting trial court should not instruct
on legal principles not supported by evidence), appeal denied, 104 A.3d 1
(Pa. 2014), see also Commonwealth v. Rayner, 153 A.3d 1049, 1061-1062
(Pa.Super. 2016) (finding prior inconsistent statement must be incompatible
with trial testimony), appeal denied 169 A.3d 1046 (Pa. 2017), certiorari
denied, U.S. , 138 S.Ct. 976 (2018).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/23/2020
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