J-A21023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DASAAHN MCMILLAN :
:
Appellant : No. 2082 EDA 2019
Appeal from the Judgment of Sentence Entered June 17, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004506-2016
BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 8, 2020
Appellant, Dasaahn McMillan, appeals from the Judgment of Sentence
entered on June 17, 2019, after a jury convicted him of one count of Criminal
Conspiracy graded as a felony of the first degree.1 After careful review, we
affirm.
On the morning of January 22, 2016, following two altercations with
Michael Wilson in center city Philadelphia, Appellant travelled to the southwest
area of the city, where he knew Wilson would later be. While traveling,
Appellant repeatedly spoke by cellphone with Kareem Briscoe, who left the
Germantown section of the city to meet Appellant.
Around 2 p.m., Wilson was talking with two companions near the
intersection of 62nd and Reedland in southwest Philadelphia. Briscoe and
____________________________________________
1 18 Pa.C.S. § 903(a).
J-A21023-20
another man emerged from an alley and began shooting at Wilson, who
suffered two gunshot wounds in his back. The two men then fled the area.
Shortly after the shooting, Appellant again spoke with Briscoe by phone.
Police would later seize one of the firearms used in the shooting from Briscoe’s
home.
Police filed a written complaint against Appellant on March 1, 2016, and
ultimately charged him with numerous offenses related to the attack, including
Attempted Murder, Aggravated Assault, and Conspiracy.2
On October 9, 2018, Appellant litigated a Motion to Dismiss the charges
pursuant to Pa.R.Crim.P. 600(A). Appellant asserted that a delay “from
December 4, 2017 until May 21, 2108 [sic] should not be considered defense
time as the government released discovery on the eve of trial forcing a
continuance.” Motion to Dismiss, 10/5/18, at 3 (unpaginated). Following a
hearing, the trial court denied the Motion, and a jury trial commenced.
At trial, the Commonwealth introduced evidence of Appellant’s
altercations with Wilson, Appellant’s relationship with Briscoe, their
____________________________________________
2The Commonwealth charged Appellant with three counts of Criminal Attempt
(Murder), three counts of Aggravated Assault, one count each of Conspiracy
(Murder, Assault), Possession of Firearm Prohibited, Firearms Not to be
Carried Without a License, Carrying Firearms on Public Streets in Philadelphia,
and Possessing Instruments of Crime. See 18 Pa.C.S. §§ 901(a), 2702(a)(1),
903(c), 6105(a)(1), 6106(a)(1), 6108, 907(a), respectively; see also Grand
Jury Indictment, 4/29/16, at 2 (accusing Appellant of Conspiracy to commit
Murder); Information, 5/23/16 (charging Appellant with Conspiracy to commit
Murder and Assault by shooting at another person).
-2-
J-A21023-20
communications both before and after the shooting, and how they travelled
from different areas of the city to converge at the shooting. In addition, the
Commonwealth introduced security camera video from a local store that
recorded the shooting and depicted two assailants.3 Finally, the
Commonwealth presented ballistics evidence demonstrating that shell casings
recovered from the scene came from a firearm seized from Briscoe’s home.
After deliberating, the jury convicted Appellant of Conspiracy and acquitted
him of all other charges.4
At sentencing, on June 17, 2019, Appellant argued a Motion to Set Grade
of Conspiracy in which he sought a reduction in the grading of his conviction
from a felony of the first degree to a misdemeanor of the first degree. The
trial court denied this Motion and sentenced Appellant to six to twelve years
of incarceration.
____________________________________________
3 The police secured a statement from an eyewitness, Leonard Brown,
identifying Appellant as one of the shooters; however, at trial, Brown recanted
his prior statement as well as his grand jury testimony identifying Appellant.
See N.T. Trial, 10/11/18, at 44, 46-51, 70, 84, 89. The Commonwealth
introduced these items as evidence of Brown’s prior inconsistent statements
but agreed to their admission for impeachment purposes only, not substantive
proof. See N.T. Trial, 10/17/18, at 17 (instructing the jury that it may
consider evidence of a prior inconsistent statement, which identified Appellant
as one of the shooters, for impeachment purposes only, not substantive
proof).
4 The Commonwealth nolle prossed the charge for Possession of Firearm
Prohibited.
-3-
J-A21023-20
Appellant timely appealed and filed a Pa.R.A.P. 1925(b) Statement. The
trial court issued a responsive Opinion.
Appellant raises the following issues:
1. [Whether] the trial court abuse[d] its discretion by finding that
Appellant’s right to a speedy trial was not violated after the
government’s untimely production of thousands of pages of
discovery caused delay resulting in Appellant’s trial
commencing 699 days after the complaint was filed[;]
2. [Whether] the evidence [was] insufficient to identify
Appellant[; and]
3. [Whether] the trial court abuse[d] its discretion by erroneously
sentencing Appellant for [C]onspiracy to commit felony
[A]ggravated [A]ssault when the jury’s verdict was to
[C]onspiracy generally without a specific finding of the object
of the conspiracy or the over[t] act[.]
Appellant’s Br. at 5 (suggested answers omitted).
Rule 600 Violation
In his first issue, Appellant asserts a Rule 600 violation, contending that
his trial did not commence in timely fashion. See Appellant’s Br. at 25. There
were numerous delays in bringing Appellant to trial.5 Relevant to his appeal,
Appellant faults the Commonwealth for an alleged untimely production of
discovery, asserting that this forced Appellant to request a continuance from
December 4, 2017, until May 21, 2018 (the “December continuance”). See
id.; see also Motion to Dismiss at 3 (unpaginated). According to Appellant,
the court should not have excluded this 168-day delay from its computation
____________________________________________
5 The Commonwealth filed charges on March 1, 2016; trial commenced on
October 9, 2018. Thus, by our calculation, trial commenced 952 days after
the Commonwealth filed charges.
-4-
J-A21023-20
of when Appellant’s trial should have commenced. See generally Appellant’s
Br. at 25-37.
We review a trial court’s decision to deny a defendant’s Rule 600 motion
for an abuse of discretion. Commonwealth v. Holt, 175 A.3d 1014, 1018
(Pa. Super. 2017). Our scope of review is limited to the evidence presented
at the Rule 600 hearing and the findings of the trial court. Commonwealth
v. Edwards, 595 A.2d 52, 53 (Pa. 1991). We review the facts in the light
most favorable to the prevailing party. Id.
Rule 600 provides in relevant part that “[t]rial in a court case in which
a written complaint is filed against the defendant shall commence within 365
days from the date on which the complaint is filed.” Pa.R.Crim.P.
600(A)(2)(a). This is the mechanical run date. See Commonwealth v.
Moore, 214 A.3d 244, 248 (Pa. Super. 2019).
“[A] violation of Rule 600 does not automatically entitle a defendant to
a discharge.” Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super.
2013) (citation omitted). To determine whether dismissal is appropriate, the
trial court must calculate an adjusted run date. Id. at 879. “The adjusted
run date is calculated by adding to the mechanical run date . . . both
excludable time and excusable delay.” Moore, 214 A.3d at 248 (citations
omitted). “‘Excludable time’ is classified as periods of delay caused by the
defendant. ‘Excusable delay’ occurs where the delay is caused by
circumstances beyond the Commonwealth's control and despite its due
-5-
J-A21023-20
diligence.” Id. at 248-49 (citations omitted); see also Pa.R.Crim.P.
600(C)(1).
In this case, following a hearing and after considering the evidence
presented, the trial court did not credit Appellant’s argument that the
Commonwealth had forced the December continuance and found rather that
Appellant was responsible for the delay. See N.T. Motion Hearing, 10/9/18,
at 14-23; Trial Ct. Op., 11/7/19, at 6. Based on this finding, the court
determined that the delay was excludable and that no Rule 600 violation had
occurred. See Trial Ct. Op. at 6-7.
Viewing the facts in the light most favorable to the Commonwealth as
the prevailing party, we conclude that there was no violation of Appellant’s
right to a speedy trial. At his hearing, Appellant introduced into evidence the
Criminal Docket, which indicates that Appellant requested the December
continuance in order to investigate his case. See Docket Entry # 55, 12/4/17
(“Defense Request for Continuance for Further Investigation”). The entry also
indicates that the Commonwealth was ready to proceed at this time. Id. This
is the only evidence of record.
Notwithstanding his current argument, Appellant did not challenge this
docket entry at the time, nor did he assert that the Commonwealth had
“forced” him to request a continuance because of its untimely production of
discovery. In fact, the Docket reveals that two months earlier, on October
4, 2017, the Commonwealth had passed along discovery but that no new trial
-6-
J-A21023-20
date was required. See Docket Entry # 51, 10/4/17 (“discovery passed at
bar of court . . . [t]rial date to remain”).6
Further, during the ensuing continuance, Appellant filed a Notice of Alibi
Defense, which supports the earlier docket entry that Appellant had requested
the delay in order to investigate possible defenses for his upcoming trial. See
Docket Entry # 71, 4/12/18 (“Notice of Alibi Defense”). For these reasons,
we conclude that the trial court properly found that the December continuance
was excludable time to be added to Appellant’s mechanical run date.
As noted supra, the Commonwealth filed a written complaint against
Appellant on March 1, 2016. Therefore, Appellant’s mechanical run date was
March 1, 2017. The total amount of excludable time and excusable delay was
706 days.7 Adding this to the mechanical run date, Appellant’s adjusted run
date was February 5, 2019. Appellant’s trial commenced on October 9, 2018,
well before the adjusted run date. Accordingly, there was no Rule 600
____________________________________________
6 Appellant does not support his current assertion that the Commonwealth
produced additional discovery closer to trial with evidence of record. See
Appellant’s Br. at 33.
7 The total excludable time and excusable delay is as follows:
6/14/16 – 12/4/17 = 538 days
o excusable delay to accommodate court scheduling and excludable
by joint request for continuance (not challenged by Appellant)
12/4/17 – 5/21/18 = 168 days
o excludable time as defense continuance
All other delays were caused by the Commonwealth.
-7-
J-A21023-20
violation, and we discern no abuse of discretion in the trial court’s decision to
deny Appellant’s Motion to Dismiss. Appellant’s claim for relief fails. 8
Sufficiency of the Evidence
In his second issue, Appellant contends that the evidence was
insufficient to support his conviction. See Appellant’s Br. at 37-54. In support
of this assertion, Appellant cites to the testimony of eyewitness, Leonard
Brown. At trial, Brown recanted his prior statements identifying Appellant as
one of the shooters.9 Thus, according to Appellant, the Commonwealth lacked
sufficient evidence to identify him as the perpetrator. Id. at 50.
It is well-settled that to preserve a challenge to the sufficiency of the
evidence in a criminal case, the appellant must specify in his Pa.R.A.P. 1925(b)
statement how the Commonwealth’s evidence did not establish his alleged
crimes. Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.
2008). To do so, an appellant’s Rule 1925(b) statement must delineate “the
element or elements upon which the evidence was insufficient.”
Commonwealth v. Carr, 227 A.3d 11, 18 (Pa. Super. 2020) (citation
____________________________________________
8 Initially, Appellant disputes the trial court’s finding that the December
continuance was excludable as a delay caused by Appellant. See Appellant’s
Br. at 23, 25, 33; see also Motion to Dismiss at 3. In alternative arguments
that permeate his brief, Appellant asserts that the Commonwealth was not
duly diligent in bringing Appellant to trial, thus asserting also that the
December continuance was not an excusable delay. See, e.g., Appellant’s Br.
at 33-34. Because the record supports the trial court’s finding that this delay
was excludable, we need not consider Appellant’s alternative arguments.
9 See supra at n.3 (explaining that the trial court admitted Brown’s prior
inconsistent statements for impeachment purposes only).
-8-
J-A21023-20
omitted); see also Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super.
2015). An appellant may also challenge the sufficiency of the
Commonwealth’s evidence establishing that he was the perpetrator. See
Commonwealth v. Cain, 906 A.2d 1242, 1244 (Pa. Super. 2006);
Commonwealth v. Pereria, 280 A.2d 623, 624 (Pa. Super. 1971) (“Of
course, the identity of the defendant must be proved beyond a reasonable
doubt, the same as any other essential element in a criminal prosecution.”)
Here, the trial court concluded that Appellant waived appellate review
of the sufficiency of the evidence because “he failed to identify the elements
of the crime of conspiracy . . . [that] the Commonwealth’s evidence failed to
prove beyond a reasonable doubt.” Trial Ct. Op. at 8-9.
After review, we agree with the trial court that Appellant has waived this
claim. Appellant failed to delineate the specific elements of Conspiracy and
failed to notify the trial court how the Commonwealth’s evidence failed to
establish those elements. In addition, Appellant did not preserve a claim
challenging the sufficiency of the Commonwealth’s identification evidence.
Rather, Appellant broadly stated that “[t]he evidence was insufficient as a
matter of law to convict [Appellant] beyond a reasonable doubt.” Pa.R.A.P.
1925(b) Statement, 8/9/19, at ¶ 5. Thus, because he has failed to preserve
properly a sufficiency challenge, Appellant waived this claim.10
____________________________________________
10 Even if the claim were not waived, we would conclude that Appellant’s
sufficiency challenge lacks merit. Appellant argues that because the
-9-
J-A21023-20
Legality of Sentence
In his third issue, Appellant asserts that the trial court erred when it
sentenced him for Conspiracy to commit Aggravated Assault, graded as a
felony. Appellant’s Br. at 55. According to Appellant, because the jury’s
verdict did not specify the criminal object of the conspiracy, its verdict was
____________________________________________
Commonwealth never introduced substantive evidence identifying him as one
of the shooters, a jury could not find him guilty of Conspiracy. See Appellant’s
Br. at 50. This argument is legally incorrect and not persuasive. Appellant’s
singular focus on eyewitness Brown’s testimony relevant to the shooting
misses the mark because he has failed to account for the substantial evidence
that Appellant engaged in a conspiracy that culminated with Briscoe (and
another man) shooting Michael Wilson.
In our de novo review, we consider the evidence adduced at trial, and all
reasonable inferences derived therefrom, in the light most favorable to the
Commonwealth as the prevailing party. Commonwealth v. Robinson, 128
A.3d 261, 264 (Pa. Super. 2015) (en banc). To sustain a conviction for a
criminal conspiracy, the Commonwealth must establish that the defendant
entered into an agreement with another person to commit or aid in an unlawful
act, with a shared criminal intent, and that an overt act was done in
furtherance of the conspiracy. Commonwealth v. Smith, 69 A.3d 259, 263
(Pa. Super. 2013). “This overt act need not be committed by the defendant;
it need only be committed by a co-conspirator.” Id. (citation omitted).
Here, the evidence established that following two altercations with Wilson,
Appellant coordinated a rendezvous with Briscoe at a location where he knew
Wilson would be; upon arrival, Briscoe and another man shot Wilson twice in
the back, then fled the scene. Importantly, Appellant does not challenge this
evidence. See generally Appellant’s Br. at 37-54. Based on this evidence,
a jury could reasonably infer that Appellant, seeking revenge for the prior
altercations, entered into a criminal agreement with Briscoe, who then
committed the overt act of shooting Wilson in the back. Thus, viewing this
evidence in the light most favorable to the Commonwealth as the prevailing
party, the evidence was sufficient to establish that Appellant engaged in a
criminal conspiracy to assault and murder Wilson.
- 10 -
J-A21023-20
“ambiguous.” Id. Thus, Appellant concludes, the trial court should have
graded this offense as a misdemeanor. Id.
“The proper grading of a criminal offense is an issue of statutory
interpretation and implicates the legality of the sentence imposed.”
Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super. 2013) (citation
omitted).11 Our standard of review is de novo, and the scope of our review is
plenary. Id.
Generally, pursuant to 18 Pa.C.S. § 905(a), the offense of Conspiracy
is “the same grade and degree as the most serious offense [that] . . . is an
object of the conspiracy.” However, “in the absence of clear evidence of the
jury's intent to the contrary, a general conspiracy verdict must be resolved in
favor of the defendant, and may be construed only as a conviction of
conspiracy to commit the least serious underlying offense for which the jury
could properly have found the defendant to have conspired to commit.”
Commonwealth v. Riley, 811 A.2d 610, 620 (Pa. Super. 2002). To ascertain
the jury’s intent, a reviewing court may examine the entire record, “including
the evidence, the criminal information, and the jury instructions[.]”
Commonwealth v. Jacobs, 39 A.3d 977, 985 (Pa. 2012).
In addressing Appellant’s claim, the trial court reasoned as follows:
[T]he [Grand Jury] Indictment describing the conspiracy was not
ambiguous because it indicated that the object of the conspiracy
____________________________________________
11 Appellant erroneously asserts that he challenges the discretionary aspects
of his sentence. See Appellant’s Br. at 55-57. This error does not hinder our
review.
- 11 -
J-A21023-20
was a single crime, namely murder, a felony of the first degree.
In addition, a review of the evidence relating to the conspiracy
charge presented at trial directly related solely to the attempted
murder and aggravated assault charges and no other. At no point
did the Commonwealth argue, even by innuendo, that the
conspiracy involved the other charges. Given this, the jury’s
verdict was not ambiguous[,] and this [c]ourt did not err by
denying [A]ppellant’s . . . request that the conspiracy be graded
as a misdemeanor for purposes of sentencing.
Trial Ct. Op. at 8
Following our de novo review of the record, including the
Commonwealth’s charges, the evidence presented at trial, and the jury
instructions, we agree with the trial court’s analysis. The jury’s intent is
ascertainable, and the verdict is not ambiguous.
In the Grand Jury Indictment and criminal Information, the
Commonwealth alleged that Appellant conspired with Kareem Briscoe to
assault and murder the victim, Michael Wilson. See Grand Jury Indictment at
2; Information at Count 3. The evidence adduced at trial was uniformly
consistent with the Commonwealth’s allegation. See, e.g., N.T. Trial,
10/11/18 at 43 (video evidence of Briscoe and another man shooting Wilson);
N.T. Trial, 10/15/18, at 66-78 (testimony establishing that Appellant was
acquainted with his co-conspirator Briscoe and that they conversed via
cellphone both before and after the shooting); 171-72 (expert testimony
relying on ballistics evidence to establish that .40 caliber cartridge cases
discovered at the scene of the shooting were fired from the firearm seized
from Briscoe’s home); N.T. Trial, 10/16/18, at 23-28 (expert testimony relying
- 12 -
J-A21023-20
on cellphone tracking data to establish that Appellant and Briscoe travelled
from different parts of the city to meet in the location of the shooting).
Finally, the trial court’s instructions to the jury, taken as a whole,
properly informed their deliberations. Prior to its Conspiracy instruction, the
trial court defined for the jury Criminal Attempt (Murder) and Aggravated
Assault. N.T. Trial, 10/17/18, at 21-24. Following its Conspiracy instruction,
the trial court defined Possessing Instruments of Crime and informed the jury
that Appellant allegedly possessed a gun intending to use it criminally in an
“attempted homicide or aggravated assault.” Id. at 27-28.
This record constitutes clear evidence that the jury intended to convict
Appellant of Conspiracy to commit Aggravated Assault and/or Murder, both
felonies of the first degree. Thus, the trial court did not err in denying
Appellant’s request to grade Appellant’s Conspiracy conviction as a
misdemeanor for sentencing purposes.12
Conclusion
After careful review, we conclude that Appellant is entitled to no relief.
We discern no Rule 600 violation because the Commonwealth timely brought
Appellant to trial within the adjusted run date. Appellant has waived his claim
challenging the sufficiency of the evidence. The jury’s verdict was not
____________________________________________
12 Unfortunately, Appellant did not include a transcription of the opening
statements and closing arguments from his trial, which could have further
informed our analysis. See, e.g., Jacobs, 39 A.3d at 985 (considering the
Commonwealth’s closing arguments in concluding that the jury’s verdict was
not ambiguous).
- 13 -
J-A21023-20
ambiguous in light of the Commonwealth’s charges against Appellant, the
evidence of record, and the jury instructions. Thus, the trial court properly
sentenced Appellant for Conspiracy graded as a felony. For all these reasons,
we affirm Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/08/2020
- 14 -