J-S44013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HASHIEM R. CLARK,
Appellant No. 3507 EDA 2015
Appeal from the Judgment of Sentence Entered November 6, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0011008-2013
CP-51-CR-0012346-2013
CP-51-CR-0012348-2013
CP-51-CR-0012350-2013
CP-51-CR-0012373-2013
CP-51-CR-0013661-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 01, 2017
Appellant, Hashiem R. Clark, appeals from the judgment of sentence of
an aggregate term of 25 to 50 years’ incarceration, imposed after a jury
convicted him of various offenses, including aggravated assault and robbery.
On appeal, Appellant challenges the admission of certain evidence. After
careful review, we affirm.
Briefly, Appellant and his cohort, Raheem Riggins, were charged in six
separate cases stemming from their armed robberies of several victims, two
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of whom Appellant and/or Riggins sexually assaulted.1 All six cases were
consolidated, and Appellant and Riggins were tried together as
codefendants.
On February 4, 2015, following a jury trial…, Appellant was
convicted of: five (5) counts of Robbery; one (1) count each of
Aggravated Assault, Burglary, Firearms Not to Be Carried
without a License, and Carrying Firearms on Public Streets in
Philadelphia; and nine (9) counts of Criminal Conspiracy (to
commit Robbery ([five] [(]5[) counts]), Rape, Aggravated
Assault, Burglary, and Indecent Assault).
On November 6, 2015, upon review of the pre-sentence
investigation report and consideration of all relevant facts and
circumstances of this case, th[e trial c]ourt sentenced Appellant
to an aggregate term of 25 to 50 years’ incarceration. He
subsequently appealed,[2] and th[e c]ourt ordered him to file a
Concise Statement of Matters Complained of on Appeal in accord
with Pa.R.A.P. 1925(b). Counsel for Appellant timely complied.
TCO at 1. The trial court filed a detailed Rule 1925(a) opinion on October
18, 2016.
In Appellant’s brief, he presents the following three issues for our
review:3
____________________________________________
1
For a detailed recitation of the facts of Appellant’s six cases, see Trial
Court Opinion (TCO), 10/18/16, at 2-16.
2
Appellant’s appeal (filed on December 3, 2015) was initially dismissed by
this Court for failure to file a brief. He subsequently filed a petition to
reinstate his appeal, which we granted.
3
Appellant sets forth five issues in his Statement of the Questions Involved,
see Appellant’s Brief at 6, but he explicitly abandons two of those claims in
the Argument portion of his brief, see id. at 11, 12-13. Therefore, we do
not reproduce those issues herein.
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A. Did [the] trial court commit error when it permitted witness
Jenny Smith to discuss hearsay evidence?
[B.] Did the trial court commit error when it permitted the
detective to make an in-court identification based upon viewing
a video which depicted an incident which he did not personally
observe?
[C.] Did the trial court commit error when it permitted the
detective to opine on the mental health of [] Appellant where he
lacked any experience in this area?
Appellant’s Brief at 6 (unnecessary capitalization and emphasis omitted).
Appellant’s first issue challenges the trial court’s admission of certain
testimony by Jenny Smith, a forensic nurse examiner. Pertinent to
Appellant’s claim on appeal, Ms. Smith testified about information recorded
in a standard rape kit that she prepared for one of Appellant’s victims, J.H., 4
as follows:
[The Commonwealth:] During your questioning of [J.H.], did you
ask her if she’s able to provide any identifying information of the
assailants?
[Ms. Smith:] Yes. We did ask for a brief description of the
assailant.
[The Commonwealth:] And did [J.H.] give you a description?
[Ms. Smith:] Excuse me. I’ll look through the chart. Yes, on
Page 4.
[The Commonwealth:] And what was that description that she
gave?
[Ms. Smith:] She described two males, both black, both --
[Appellant’s Counsel:] I would just object.
____________________________________________
4
We have replaced the sexual assault victim’s name with initials for
purposes of confidentiality.
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The Court: Overruled.
…
[The Commonwealth:] You may answer that.
[Ms. Smith:] She described two males, both approximate
age of 30’s. [B]oth were black, and both were wearing
hoodies.
TCO at 18-19 (quoting N.T. Trial, 1/29/15, at 127) (emphasis added).5
Despite not raising a specific objection at the time of trial, Appellant
now avers (in a five-sentence argument) that Ms. Smith’s above-emphasized
testimony was inadmissible hearsay. In regard to how he was prejudiced by
the admission of this evidence, Appellant offers the following two sentences:
Applying the facts to the law, it was unfairly prejudicial to
[Appellant] to allow Smith to testify regarding the description of
[J.H.’s] assailants. [Appellant] was not able to effectively cross-
examine the hearsay statements and he was prejudiced by his
inability to confront the witness against him.
Id.
Appellant’s undeveloped argument is insufficient to demonstrate that
the trial court committed reversible error in allowing Ms. Smith’s at-issue
testimony. Preliminarily, the trial court explains in its Rule 1925(a) opinion
that Ms. Smith’s testimony was admissible under the ‘business records’
exception to the rule prohibiting hearsay. See TCO at 20 (citing Pa.R.E.
803(6); Commonwealth v. Hemingway, 534 A.2d 1104, 1107 (Pa. Super.
____________________________________________
5
Appellant did not ensure that the transcript from trial on January 29, 2015,
was included in the certified record, and this Court’s Prothonotary’s Office
was not able to locate that transcript. Thus, we will accept the trial court’s
reproduction of Ms. Smith’s testimony, to which Appellant does not object.
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1987)). Appellant does not offer any challenge to the court’s decision in this
regard; thus, he has failed to demonstrate that the court abused its
discretion in admitting Ms. Smith’s testimony under this hearsay exception.
See Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010)
(“Questions concerning the admissibility of evidence lie within the sound
discretion of the trial court, and a reviewing court will not reverse the trial
court's decision absent a clear abuse of discretion.”) (citation omitted).
In any event, Appellant’s cursory claim that he was prejudiced by the
admission of Ms. Smith’s testimony is also unconvincing. Notably, the
declarant of the hearsay statement, J.H., took the stand at Appellant’s trial,
thus providing him with the opportunity to cross-examine her about the
information she gave to Ms. Smith during the preparation of the rape kit.
Furthermore, the Commonwealth stresses that Appellant “confessed to
participating in the burglary” of J.H.’s residence, and “a video surveillance
tape from the night of the crime … showed [Appellant] and co-conspirator []
Riggins approaching [J.H.’s] home, and leaving with bags in their hands.”
Commonwealth’s Brief at 16-17 (citations to the record omitted; emphasis in
original). Additionally, “Riggins’ girlfriend … identified [Appellant] from
[that] tape.” Id. at 17 (citations to the record omitted). We agree with the
Commonwealth that, considering this evidence, J.H.’s general description of
her assailants (as admitted through the testimony of Ms. Smith) was merely
cumulative. Id. at 16. Therefore, even if the trial court erred in admitting
Ms. Smith’s at-issue testimony, that error was harmless. See
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Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (deeming an
error in the admission of certain evidence harmless, where that evidence
was merely cumulative of other properly admitted evidence).
In Appellant’s next issue, he avers that the trial court improperly
allowed “the detective to make an in-court identification based upon viewing
a video which depicted an incident which he did not personally observe.”
Appellant’s Brief at 11 (unnecessary capitalization and emphasis omitted).
Again, Appellant’s argument (which consists of five sentences) is woefully
undeveloped, as he does not even identify which detective’s testimony he is
challenging, nor cite to what exact testimony was improperly admitted.
Because these defects impede our meaningful review of Appellant’s
argument, his second issue is waived for our review. See Commonwealth
v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007), appeal denied, 940 A.2d
362 (Pa. 2008) (“When briefing the various issues that have been preserved,
it is an appellant’s duty to present arguments that are sufficiently developed
for our review. … [W]hen defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find
certain issues to be waived.”) (citations omitted).
Moreover, Appellant’s second issue is waived for two other reasons, as
well. First, Appellant now concedes that the testimony by ‘the detective’
was admissible, but he contends that the court should have provided a
cautionary jury instruction. However, Appellant does not cite to where in the
record he requested such an instruction. Consequently, he has waived his
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argument that the court erred by not issuing one. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”)); see also Commonwealth v. Bryant, 855 A.2d
726, 739 (Pa. 2004) (“Failure to request a cautionary instruction upon the
introduction of evidence constitutes a waiver of a claim of trial court error in
failing to issue a cautionary instruction.”) (citations omitted).
Second, we agree with the Commonwealth that Appellant has also
waived his claim regarding the court’s failure to issue a cautionary
instruction because he did not specifically assert that issue in his Rule
1925(b) statement. Therein, Appellant declared: “The [c]ourt committed
error when it permitted the Detective to make an identification based upon
viewing the video in-court despite the fact he did not personally observe the
incident. This usurped the jury’s role.” Appellant’s Pa.R.A.P. 1925(b)
Statement, 7/1/16, at 1. Appellant did not mention any issue pertaining to
the court’s failure to provide a cautionary jury instruction. Accordingly,
Appellant’s argument is waived on this basis, as well. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
In Appellant’s third and final issue, he asserts that the trial court erred
by admitting what essentially amounted to an expert opinion by a lay
witness. Specifically, the Commonwealth questioned Detective Waring about
Appellant’s physical appearance and demeanor during the detective’s
interview of Appellant, as follows:
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[The Commonwealth:] When you first set eyes on [Appellant],
did he appear to be in any pain or physical discomfort?
[Detective Waring:] No.
[The Commonwealth:] Did he appear to be under the influence
of drugs, alcohol, or medication?
[Detective Waring:] No.
…
[The Commonwealth:] I know you’re not an expert, but to
your view, did he appear to be suffering from any mental
illness or mental issues?
[Defense Counsel:] Objection.
THE COURT: Overruled.
[Detective Waring:] No.
[The Commonwealth:] In your time as a police officer, have you
come into contact with people who seem to be suffering from
mental illness or mental issues?
[Detective Waring:] Yes.
[The Commonwealth:] Okay. And he didn’t appear like that at
all?
[Detective Waring:] No.
[The Commonwealth:] Okay. Did you notice any marks or
bruises or anything on him indicating that he was physically
injured?
[Detective Waring:] No.
N.T. Trial, 1/30/15, at 174-75 (emphasis added).
Appellant now claims that the above-emphasized question by the
Commonwealth and response by Detective Waring constituted impermissible
expert testimony by a lay witness. In the trial court’s opinion, it explains
that it permitted Detective Waring’s at-issue testimony because in its view,
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that testimony did not constitute an expert opinion. The court emphasizes
that, “the Commonwealth simply questioned the detective on Appellant’s
faculties at the time of his statement to establish that [the statement] was
knowingly and voluntarily given….” TCO at 25. The court also concludes
that “Detective Waring did not offer a medical ‘opinion[,’] but simply
provided a common sense perception as to whether Appellant ‘had his wits’
to give a knowing and voluntary statement.” Id. at 27.
Appellant offers absolutely no challenge to the court’s reasoning.
Moreover, while he recognizes that a lay witness may give an opinion under
certain circumstances, as set forth in Pa.R.E. 701, Appellant offers no
discussion of why Detective Waring’s testimony was beyond the bounds of
that rule. Instead, Appellant simply states that “the [d]etective was asked
to give an opinion about the mental state of [Appellant] when [the
detective] was interviewing him[,]” and he then proceeds directly into a
discussion of why the detective’s allegedly expert opinion caused him
prejudice. Appellant’s Brief at 12. Without any developed discussion of why
the trial court erred by considering Detective Waring’s testimony as an
admissible opinion by a lay witness, Appellant has not demonstrated that the
court’s decision was an abuse of discretion.
Nevertheless, we also point out that Appellant has not demonstrated
that he was prejudiced by the at-issue testimony, to the extent that a new
trial is warranted. In this regard, Appellant’s entire argument is as follows:
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Although the detective answered in the negative, it created the
impression that [Appellant] had some lingering mental illness,
otherwise why would the question be asked? Further, the
defense never questioned [Appellant’s] mental health or brought
this up as a defense. The question should never have been
asked in the first place because the detective’s experience did
not lend itself to the area of mental health.
Appellant’s Brief at 12.
Notably, Appellant does not elaborate on - nor cite any legal authority
to support - how the Commonwealth’s question, and Detective Waring’s
answer, created an ‘impression’ that Appellant was mentally ill. Indeed, it is
clear from the above-quoted portion of Detective Waring’s testimony that
the Commonwealth asked the at-issue question in order to demonstrate that
Appellant was not mentally ill when he was interviewed by the detective.
Therefore, given the context of the Commonwealth’s question, and the
detective’s answer that Appellant did not seem mentally ill, we are
unconvinced by Appellant’s assertion that the jury was left with an
‘impression’ that he was mentally ill. In other words, Appellant has not
demonstrated that he was prejudiced by the admission of Detective Waring’s
testimony, even if it was an impermissible expert opinion by a lay witness.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2017
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Com. v. Clark, H.
Combined Opinion