J-S20038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MONROE YATES :
: No. 2936 EDA 2015
Appellant
Appeal from the Judgment of Sentence July 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014350-2013
BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED OCTOBER 06, 2017
Monroe Yates appeals from the judgment of sentence imposed on July
22, 2015, in the Court of Common Pleas of Philadelphia County following his
conviction by jury on charges of attempted murder, conspiracy to commit
murder, and various weapons offenses.1 He received an aggregate sentence
20 to 40 years’ incarceration. In this timely appeal, Yates claims the evidence
was insufficient to support the verdict, the verdict was against the weight of
the evidence, the trial court erroneously charged the jury regarding
identification, and the trial court erroneously announced a stipulation to the
jury. After a thorough review of the submissions by the parties, relevant law,
and the certified record, we affirm.
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1 18 Pa.C.S. §§ 901(a), 1102(c), 6106(a)(1) and 6108.
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We adopt the factual summary of this matter from the trial court
opinion:
On June 17, 2013, around nine o’clock in the evening,
Lakeisha Jessie was with her sons Sahih Johnson and Jahih Yates
in North Philadelphia. Sahih asked his mother if he could spend
the night at a friend’s house. When Lakeisha said no, Sahih called
her a “bitch.” After this disagreement, Lakeisha’s nephew Robert
Jackson walked by, and Lakeisha asked him to “beat up” Sahih for
disrespecting her. Robert continued the physical confrontation
with Sahih until Lakeisha told him to stop.
Later that evening, Robert and Sahih encountered one
another and began fighting again. Lakeisha then noticed that her
son Jahih’s father, [Monroe Yates (hereinafter, Yates)], was
arguing with Robert as well. At this time Lakeisha called Robert’s
mother, her sister Kimberly Jessie, to pick up her son. When
Lakeisha told [Yates] to leave Robert alone, he walked away
towards Franklin Street.
Kimberly Jessie was with friends nearby on 10th Street when
Lakeisha called her. As she walked down 9th Street near Pike
Street to find her son Robert, Kimberly passed [Yates] and
[Biggs.2] She stopped to speak to [Yates] about the incident.
While they were speaking, Kimberly’s sons Robert, Raheim and
Tyreek approached them. Raheim said, “Nobody is going to do
anything. Nobody is going to touch my family.” This made [Yates]
and [Biggs] angry, and Kimberly walked them across the street.
[Yates] and [Biggs] left together in a white vehicle.
At approximately 10:30 that evening, Officers Dayton
Bennett and Joseph Marion responded to a report of shots fired in
the area of 9th and Pike Streets. The initial call reported five or
six shots fired. Upon arrival, the officers found a group of around
20 people gathered in the area. They also saw Kimberly Jessie
lying on the curb between Percy and Delhi Streets. She had been
shot and was in distress, screaming “They tried to shoot my son.
They tried to shoot my son. The mother f-ers tried to shoot my
son.” Kimberly testified that she was shot in the right thigh, and
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2Mark Biggs, a/k/a Saladine Sweets, was Yates’s co-defendant. His appeal
was listed consecutively with this appeal.
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that the bullet entered from the back and exited the front of her
leg.
Lakeisha Jessie was also at the scene and spoke to Officer
Marion when he arrived. Lakeisha identified [Yates] and [Biggs]
as the shooters to Officer Marion at this time. Once Kimberly was
transported to the hospital, Lakeisha was brought to East
Detective’s Division to make an official statement. Detectives
Kahlan and Daley interviewed Lakeisha at about 11:35 PM. At this
time, Lakeisha again identified [Yates] and [Biggs] as the
individuals who had shot at her nephew, Raheim Jackson, and his
mother Kimberly. She stated that she saw both men holding black
handguns.
After being treated for her injuries, Kimberly Jessie was also
interviewed by Detectives Kahlan and Daley that night. Detective
Daley described her as “hysterical. She was in a lot of pain. She
was upset, angry, a lot of emotions.” Kimberly had brought the
jeans she had been wearing to the detectives, who placed them
on a property receipt. During this interview, Kimberly also
identified [Yates] and [Biggs] as the shooters, and circled both of
their pictures. She told detectives that she saw each man holding
a handgun, one black and one silver. Although the interview was
cut short due to the pain Kimberly was in, she was able to review
and sign her statement that evening.
Detectives Ellis and McCullough processed the scene of the
shooting to search for evidence. After an initial search of the area
did not yield any results, they went to Temple University Hospital
to speak to Kimberly Jessie, who was still being treated at that
time. They learned that she had been shot closer to 9 th Street,
and returned to the scene to refocus their search. They
discovered two fired cartridge casings east of 9 Street, in an area
th
that had not been previously secured as part of the crime scene.
The first casing was found under a Chevrolet Impala parked at the
southeast corner of 9th and Pike Streets. The second casing was
recovered from under a Toyota Corolla in the same area. The
Toyota Corolla appeared to have a bullet hole in the hood. Both
fired cartridge casings were of the same make and model.
Firearms examiner Letitia Cannon examined the fired cartridge
casings and concluded that they had been fired from the same
firearm.
Another bullet went into the home of Della Jamison at 3900
North Delhi Street, at the corner of Pike Street. Ms. Jamison
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testified that she had heard what sounded like gunshots that
evening, and thought something may have hit her house. Upon
going upstairs later that night, she found damage to a hat and
perfume bottle. Officer Malcolm Scott investigated Ms. Jamison’s
house the next day when she reported the damage. In his report,
Officer Scott noted that a “possible bullet went through the front
bedroom wall, traveled through the middle bedroom, and is
lodged in the bedroom wall.”
On August 10, 2013, Sergeant Wali Shabazz was making an
unrelated car stop at 10th and Butler Streets in the same
neighborhood as the shooting and was approached by Kimberly
Jessie. After finishing the car stop, Sergeant Shabazz walked over
to Kimberly to speak with her. She told him that he should “be
looking for the people that shot me,” and that she was “scared for
myself and my kids.” Sergeant Shabazz asked her for the names
of the men who shot her, and she responded with [Yates’s] and
[Biggs’] names.
Sergeant Shabazz found a warrant for [Yates], and went to
the address listed at the 3900 block of Franklin Street. When
[Yates] came to the door, Sergeant Shabazz, who was in full
uniform, told him he was there to respond to a burglary alarm.
When [Yates] replied that he did not have an alarm, Sergeant
Shabazz excused himself and called for backup. When Sergeant
Shabazz returned to the door, [Yates’s] wife answered. [Yates]
then tried to slam the door on Sergeant Shabazz and ran towards
the back of the house. Sergeant Shabazz pursued him to the back
door and was able to place [Yates] under arrest.
Sergeant Shabazz remained in touch with Kimberly Jessie
regarding [Biggs], whose whereabouts were still unknown at the
time. [Biggs] was not present in the City of Philadelphia, and was
eventually apprehended by United States Marshalls (sic) on
November 8, 2013.
Trial Court Opinion, 6/17/2016, at 2-5 (record citations omitted).
Relevant to this appeal, at trial, both Kimberly Jessie and her sister,
Lakiesha Jessie, recanted their statements to the police and denied ever
identifying Yates or Biggs as the assailants. Raheim Jackson, the apparent
intended victim of the shooting, never cooperated with the authorities, telling
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them only “some niggas were shooting and that’s all I want to say,” 3 as well
as this brief exchange:
Police Detective: Your Mom was shot, don’t you think you owe to
her to cooperate and tell us what you can about the incident?
Witness: My Mom had me arrested on the same day I was going
to get a job with the school board so she wasn’t looking out for
me.
Id. at 3.
In his first issue, Yates claims there was insufficient evidence to support
any of his convictions. His post-trial motion failed to specify what elements
of any of the crimes were not proven. While this can result in waiver, here,
the trial court did address certain aspects of insufficient evidence, thereby
allowing for appellate review.4 However, we will only review those issues that
were addressed by the trial court’s opinion, as “issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”
Commonwealth v. McGriff, 160 A.3d 863, 872 (Pa. Super. 2017) (citation
omitted); Pa.R.A.P. 302. Accordingly, below we discuss the issues addressed
by the trial court regarding sufficiency of the evidence.
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3 Commonwealth Exhibit 9, Police Interview, 6/18/2013, at 2.
4See Commonwealth v. Tyack, 128 A.3d 254 (Pa. Super. 2015) (vague
Pa.R.A.P. 1925(b) statement can result in waiver); Commonwealth v.
Smith, 955 A.2d 391 (Pa. Super. 2008) (en banc) (where trial court files an
opinion meaningfully addressing vague Pa.R.A.P. 1925(b) statement, waiver
may be avoided).
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Initially, “A conviction for attempted murder requires the
Commonwealth to prove beyond a reasonable doubt that the defendant had
the specific intent to kill and took a substantial step towards that goal.”
Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008) citing 18
Pa.C.S. §§ 901, 2502. Additionally, “It is well-settled that specific intent to
kill can be established through circumstantial evidence such as the use of a
deadly weapon on a vital part of the victim's body.” Commonwealth v.
Johnson, 107 A.3d 52, 66 (Pa. 2014) (citations omitted). Such intent may
also be proven through evidence the defendant fired multiple shots at the
victim, even though none of the shots struck the victim in a vital organ. See
Commonwealth v. Manley, 985 A.2d 252 (Pa. Super. 2009).
Here, the police statements of both Kimberly Jessie and Lakeisha Jessie
identified Yates as one of the individuals shooting at Raheim Jackson, and
multiple witnesses, including the Jessie sisters, reported hearing the assailants
fire between four and six shots each at Raheim Jackson and his mother,
Kimberly Jessie. Additionally, the police found two spent shell casings, both
of which came from the same gun, in the immediate area of the shooting.
Moreover, there was evidence the shootings took place following a
confrontation between Jackson and Yates, ending with Yates and Biggs
chasing Jackson down the street while firing at him. In view of the foregoing,
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we agree with the trial court there was sufficient evidence to support a finding
of guilt regarding attempted murder.5
Next, the trial court determined there was sufficient evidence to support
the verdicts on the firearms charges, 18 Pa.C.S. §§ 6105, 6106, and 6108.6
The trial court noted that it was stipulated that Yates was not eligible to
possess a firearm under § 6105. Because Yates could not obtain a license for
a firearm, pursuant to § 6105, and there was no question the incident took
place in Philadelphia, the open question was simply whether Yates had a
firearm in his possession. The trial court noted that both Kimberly Jessie and
Lakeisha Jessie gave statements to the police that Yates had a handgun in his
possession. That fact, coupled with spent shell casings at the shooting scene,
and additional testimony confirming shots were heard at the relevant time,
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5 In his appellant’s brief, Yates also argued the Commonwealth failed to argue
the applicability of transferred intent in this case. Transferred intent is
relevant if one believes that Raheim Jackson was the intended target of the
shooting, but his mother was inadvertently struck. We note the trial court
instructed the jury regarding transferred intent without objection from either
of the defendants. See N.T. Trial, 1/28/2013, at 20-21. Additionally, the
argument is waived as that specific claim was not raised before the trial court
and was not addressed by the trial court in its trial court opinion. A defendant
may not raise an issue for the first time on appeal. McGriff, supra.
6Persons not to possess a firearm, firearms not to be carried without a license,
and carrying firearms in public in Philadelphia, respectively.
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provide sufficient evidence to support the convictions on the firearms
charges.7
In view of the above, Yates is not entitled to relief on his claim of
insufficient evidence.
Next, Yates argues the verdict was against the weight of the evidence.
Although the claim was preserved in a post-sentence motion, once again, the
claim was non-specific. Nevertheless, the trial court understood the claim to
reference Kimberly Jessie and Lakiesha Jessie both disavowing their signed
statements to the police.8 Our standard of review for a challenge to the weight
of the evidence is, as follows:
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7 Yates argued there was insufficient evidence to support the firearms
convictions under section 6106 and 6108 because the Commonwealth failed
to present any evidence of barrel length of the guns used in the shootings.
See Commonwealth v. Todd, 384 A.2d 1215 (Pa. 1978) (barrel length is an
essential element of the offenses defined in sections 6105 and 6106). Barrel
length of a weapon is specifically part of the definition of a firearm found in
Pa.C.S. § 6102. We note the definition of “firearm” has been amended
regarding section 6105, and certain exceptions, not applicable herein, to
section 6106. See also, Commonwealth v. Gillespie, 821 A.2d 1221 (Pa.
2003) (recognizing the definitional change as to section 6105 only). However,
Yates did not raise this specific claim before the trial court and the trial court
did not address the claim. Accordingly, it has been waived.
8 At trial, Kimberly Jessie testified, “If you all ain’t send those people to my
mom’s house, I never came here. [The Commonwealth sent police to Kimberly
Jessie’s residence to make certain she came to court to testify.] I just want
to be over with this. I am done with it. I moved on with my life and my
grandkids. I don’t want to be bothered or talking about this anymore. I don’t
feel like they life-threatening to me or my children. I just want to leave.” N.T.
Trial, 1/21/2015 at 38.
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An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.
[Commonwealth v.] Brown, 648 A.2d [1177] at 1189
[(Pa. 1994)]. Because the trial judge has had the
opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court's determination that the verdict is
against the weight of the evidence.. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One
of the least assailable reasons for granting or denying a new
trial is the lower court's conviction that the verdict was or
was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
[Commonwealth v.] Widmer, 560 Pa. [308] at 321-22, 744
A.2d [745] at 753 (emphasis added).
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In describing
the limits of a trial court's discretion, we have explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M.
Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
(1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1055-56 (Pa. 2013).
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Here, the trial court succinctly determined:
In the instant case, [Yates] and his co-defendant were
immediately identified by the complainant and her sister as the
shooters. Although both women testified differently at trial,
evidence of the earlier statements made to police were presented
and entered into evidence. The jury had the opportunity to
observe these inconsistencies in testimony and was able to take
this into account when deliberating. The fact that [Yates] and Co-
Defendant were found guilty after all the evidence was presented
was not contrary to the evidence or shocking to the conscience.
The jury is always free to determine which testimony to believe
and how much weight to give testimony. Here, the jury chose to
credit the statements of the complainant and her sister, and the
testimony of the detectives investigating the case. The fact that
the jury found [Yates] and his co-defendant guilty after weighing
all the evidence does not shock one’s sense of justice.
Trial Court Opinion, 6/17/2016, at 6-7 (citation omitted).
We have reviewed the certified record and find no abuse of discretion in
the trial court’s determination. Therefore, Yates is not entitled to relief on this
issue.
In his third issue, Yates claims the trial court erred in providing an
erroneous identification charge to the jury. Specifically, Yates argues the trial
court misled the jury by suggesting Kimberly Jessie and Lakeisha Jessie had
identified him as a shooter at trial.
Our review of a challenge to a jury charge is well settled:
“When reviewing a challenge to a jury instruction, we review the
charge as a whole to ensure it was a fair and complete statement
of the law.” Trial courts possess great discretion in phrasing jury
instructions so long as the law is clearly, adequately, and
accurately presented to the jury. “[A] trial court need not accept
counsel’s wording for an instruction, as long as the instruction
given correctly reflects the law.”
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Commonwealth v. Towles, 106 A.3d 591, 607 (Pa. 2014) (internal citations
omitted), cert. denied, 135 S.Ct 1494 (U.S. 2015).
The trial court initially instructed the jury as follows:
Now, in their testimony, Lakeisha Jessie and Kimberly Jessie
have identified the defendants as persons who committed the
crime. In evaluating their testimony in addition to the other
instructions I provided to you for judging testimony of witnesses,
you should consider the following factors: Did the witness have a
good opportunity to observe the perpetrator of the offense; was
there sufficient lighting for them to make their observation; where
(sic) they close enough to the individual to note their facial and
other physical characteristics as well as any clothing they were
wearing; have they made prior identification[s] of the defendant
as perpetrator of these crimes or at any other proceedings; was
their identification positive or was it qualified by any hedging or
inconsistencies; during the course of this case did the witness
identify anyone else as [a] perpetrator.
In considering whether or not to accept testimony of
Lakeisha Jessie and/or Kimberly Jessie you should consider all the
circumstances under which the identification[s] were made.
****
You cannot find defendant guilty unless you are satisfied
beyond a reasonable doubt by all the evidence, direct and
circumstantial, not only that the crime was committed, but that it
was [the] defendant who committed it.
N.T., 1/28/2015, at 15-17. At the conclusion of the charge, the court
conducted a brief sidebar discussion with counsel, and then returned with the
following additional instructions concerning identification evidence:
And as for the instruction I gave you regarding identification
testimony by the witnesses that I mentioned to you previously, I
want to make it clear that that instruction which starts off with “in
their testimony the witnesses have identified the defendant as
[the] person who committed the crime”, that refers to the
previous identification done to the police and statements that
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were recorded by the police which were presented to the witness
in court. And I’m referring to their previous identification.
That’s what that instruction which deals with identification
testimony that I read to you and it applies to the witness that I
gave to you which previously were Lakeisha Jessie, Kimberly
Jessie, and I believe, I just covered Lakeisha Jessie and Kimberly
Jessie.
Id. at 29. After the jury retired for deliberations, Yates’s attorney objected to
the court’s additional instruction, requesting the court specifically instruct the
jury “there was no identification evidence presented from either of these two
witnesses in court[.]” Id. at 32. Further, he complained the additional
instruction was inadequate because it was up to the Commonwealth to prove
“whether or not these women identified these two defendants as the doers,”
and that “the jury has now been instructed that [the witnesses] did in fact do
that at some point.” Id. Trial counsel for co-defendant Biggs joined in Yates’s
objection. See id. at 33. However, the court determined the instruction
was proper. See id. at 35.
We find no reason to disagree with the trial court’s ruling. Although the
court initially misstated that Lakeisha and Kimberly had identified Biggs and
Yates in their trial testimony, its additional instruction made clear that the
witnesses identified Yates and Biggs only in their prior statements to police.
The court had earlier instructed the jury that it could accept those prior
inconsistent statements in judging the witnesses’ credibility, and could “regard
[that] evidence as proof of the truth of anything that the witness said in the
earlier statement.” Id. at 21.
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Prior to deliberation, the trial court corrected its misstatement and
accurately stated that both witnesses had identified Yates as a shooter prior
to trial. Examined in the context of the entire jury charge, including the
instruction regarding credibility and inconsistent statements, we find the
court’s charge “clearly, adequately, and accurately” presented the law to the
jury, as required by Towles, supra. Accordingly, Yates is not entitled to relief
on this issue.
In his final argument, Yates claims the trial court erred in announcing a
stipulation to the jury, he had not agreed to. On January 22, 2015, the trial
court informed the jury as follows:
Ladies and Gentlemen, it has been agreed to among counsel
regarding the issue locating the bullet or fragment that Officer
Scott came out to the house two days later, as this witness [Dr.
Rev. Della Jamison] has testified, and he was unable to find the
bullet or bullet fragment at that time.
N.T. Trial 1/22/2015, at 91.
Although counsel for Yates objected to this “stipulation,” in discussing
the issue at sidebar, counsel indicated his argument regarding the bullet was
as follows:
And eventually instead [of] arguing no bullet, I’m going to argue
they looked for it and didn’t find it. That’s all. And they didn’t.
The police didn’t find it.
Id. at 88.
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While counsel’s intended argument appears to mirror the stipulation,9
counsel objected. Over counsel’s objection, the stipulation was announced to
the jury. Assuming, arguendo, that the trial court erred in announcing a
stipulation that was not specifically agreed to, Yates nonetheless fails to
demonstrate prejudice. He argues he was prejudiced because,
The Court allowed testimony with regard[] to the bullet entering
into Ms. Jameson’s home presumably to allow the Commonwealth
to prove the intent to kill on behalf of the doers. This stipulation
may or may not have swayed the jury to ultimately find that the
doers had the intent to kill; that is because this particular evidence
would clearly go to prove malice on behalf of the doers.
Yates’s Brief at 28.
This argument is illogical. The “stipulation” merely noted that two days
after the shooting, a police officer, following up on the report of a bullet coming
through a window, could not find any bullet at that time. We cannot see how
the stipulated inability to find a stray bullet demonstrates the “doers” were
intent upon killing someone. Additionally, Yates has argued that the defense
of this matter was one of identity – Yates denied he was one of the assailants.
See Yates’s Brief, at 26 (“The defense in the case was of identification, nor
[sic] self-defense or another affirmative defense.”). The “stipulated” fact did
nothing to prejudice that defense.
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9 The trial court announced the “stipulation” in order to prevent any of the
parties from inadvertently opening the door to the fact that a bullet fragment
was found in Dr. Jamison’s wall sometime later. The fragment had been
previously ruled inadmissible.
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Because Yates can demonstrate no prejudice, he is not entitled to relief
on this issue.
In light of the foregoing, we find that Yates is not entitled to relief on
any of his claims. Accordingly, his judgment of sentence must be affirmed.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/17
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