Com. v. Evans, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KAREEM EVANS, :
:
APPELLANT :
: No. 2475 EDA 2015
Appeal from the Judgment of Sentence July 13, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005531-2014
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 21, 2016
Appellant, Kareem Evans, appeals from the Judgment of Sentence
entered by the Bucks County Court of Common Pleas on July 13, 2015.
After careful review, we affirm.
The facts, as established at trial and set forth by the trial court, are as
follows:
The [v]ictim in this matter is a twenty-year-old resident of
Philadelphia and mother of two children. In August of
2014, the victim, a former home health aide, had begun to
engage in prostitution, advertising her services as an
“escort” on an internet website called “Backpage.”
On August 8, 2014, at approximately 3:00 a.m., the victim
received a telephone call from a man identifying himself as
“Kareem,” later identified as [Appellant]. The victim
*
Former Justice specially assigned to the Superior Court.
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agreed to meet [Appellant] at 213 Market Street in Bristol
Borough, Bucks County. Lorenzo Broggi[] drove the victim
to the prearranged location where she met [Appellant].
[Appellant] then led her on foot to another location, an
unoccupied residence located on Cedar Street in Bristol
Borough. After entering an unfurnished backroom of that
building, the victim plugged the charger for her cellphone
into a wall outlet.
The victim, already concerned about the change of
location, became frightened when she heard someone
jiggling the handle of the front door. When [Appellant] left
the backroom and headed for the front door, the victim
immediately used her cell phone to call Mr. Broggi, her
driver. When [Appellant] returned, he attempted to take
the phone from the victim but she was able to temporarily
regain control of it. The victim then attempted to leave
the building. When she began to do so, she was
unexpectedly confronted by a second man, later identified
as co-defendant Qudre McMillan. McMillan was armed with
a shotgun. He pointed it at her and told her not to move.
Raising both hands, the victim told McMillan that he could
take the ten dollars in her pocket and her phone. McMillan
continued to approach the victim, forcing her to retreat
into the backroom.
[Appellant] then “dismissed” McMillan from the room and
proceeded to orally and vaginally rape the victim,
threatening to “punch her in her f—ing head” and kill her if
she did not do what she was told. [Appellant] ejaculated
inside her. As [Appellant] sexually assaulted the victim,
McMillan occasionally watched from his position in the
hallway. When [Appellant] then left the room, McMillan
entered. The victim continued to cry as McMillan vaginally
raped her. He ejaculated on her buttocks. McMillan then
left the room. While the victim waited for her attackers to
return, she heard a door shut. When neither attacker
returned after two minutes, the victim fled the building.
Shortly after dropping the victim off at the Market Street
address where [Appellant] was waiting, Mr. Broggi
received a call from the victim. When he answered, the
victim did not speak to him. Mr. Broggi heard a scuffle in
the background. As he listened, he heard a male voice.
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Mr. Broggi testified that he heard the victim crying and
yelling. He specifically heard her say that she did not have
any money with her. He also heard her tell someone to
leave her alone, and not to hurt her. The phone call
abruptly ended. Realizing that the victim was in trouble,
Mr. Broggi returned to Market Street in an attempt to
locate the victim. He circled the area sounding the horn of
his vehicle. M. Broggi’s efforts to locate the victim were
unsuccessful.
At approximately 4:30 a.m., Arthur Carter and his son
were driving on Market Street approaching Cedar Street
when the victim ran out from Cedar Street and ran in front
of his van. When Mr. Carter lowered his window to speak
to her, she told him that she had been raped and that she
needed help. Mr. Carter testified that the victim was
hysterical, that she was crying, and that her hair looked
“like somebody had been dragging her around.” Her
clothes were askew and her underwear was pulled out of
her pants. Mr. Carter called 911 and remained with her
until assistance arrived. The victim was then transported
from the scene to Abington Memorial Hospital for a Sexual
Assault Examination. During that examination, vaginal
and rectal swabs were obtained.
A search warrant was obtained for the Cedar Street
address. During the search, the cell phone charger to the
victim’s telephone was found on the floor of the back room
of the residence. Police contacted the victim’s cell phone
carrier who informed them that the victim’s cell phone was
located at the intersection of Headley Street and Pine
Street in Bristol Borough, with an uncertainty of thirty-five
meters. [Appellant] was staying at 801 Pine Street which
is located at the intersection of Headley and Pine Streets.
That residence is approximately six blocks away from
Cedar Street where the assaults occurred.
On August 9, 2014, police observed McMillan in the area of
Cedar Street. On that same date, police executed a search
warrant of 801 Pine Street. When police arrived,
[Appellant] was present. While detectives were executing
the search warrant, McMillan arrived at the residence. The
victim’s cell phone was found concealed beneath a seat
cushion of a sofa inside the residence. Kalesha Cruz,
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[Appellant’s] fiancée, told police and later testified that she
observed McMillan give [Appellant] the cell phone on
Friday, August 8, 2014.
A photo array, which included an image of [Appellant] as
Photograph Number 2, was displayed to the victim. The
victim almost immediately pointed to Photograph Number
2, gasped, said, “That’s him. That’s the man who raped
me,” and began to cry.
The vaginal and rectal swabs of the victim were submitted
to the Pennsylvania State Police Bureau of Forensic
Services for serological and DNA analysis. The items were
determined to contain spermatozoa and the DNA of
[Appellant] and McMillan.
Trial Ct. Op., 1/7/16, at 2-5 (citations omitted).
Prior to trial, on February 27, 2015, the Commonwealth filed a written
motion seeking to admit evidence of witness intimidation for the purposes of
demonstrating consciousness of guilt. After an offer of proof, the trial court
granted the motion over the objections of counsel for Appellant and co-
defendant Qudre McMillan (“McMillan”).
On March 9, 2015, Appellant’s and McMillan’s three-day joint jury trial
began. The Commonwealth presented the testimony of ten witnesses,
including the victim. The court ordered all non-police and non-expert
witnesses sequestered from the courtroom during witness testimony.
Relevant to this appeal, during the victim’s cross-examination by McMillan’s
counsel, the victim became distraught and asked to leave the witness stand.
The court recessed for 15 minutes, after which, over Appellant’s counsel’s
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objection, the court permitted the victim to retake the stand and McMillan’s
counsel to continue with cross-examination.
On March 13, 2015, the jury convicted Appellant of Rape by Threat of
Forcible Compulsion, Involuntary Deviate Sexual Intercourse by Threat of
Forcible Compulsion, Robbery by Threat of Serious Bodily Injury, Robbery by
Force, Terroristic Threats, Theft by Unlawful Taking, Criminal Conspiracy to
Commit Robbery by Threat of Serious Bodily Injury, and Criminal Conspiracy
to Commit Theft.1, 2
The court deferred sentencing for Appellant to undergo an evaluation
by the Sexual Offender Assessment Board pursuant to 42 Pa.C.S. § 9799.24.
Based upon the findings of the Board, and with the agreement of the parties,
the court found Appellant to be a Sexually Violent Predator.
1
18 Pa.C.S. § 3121(a)(2); 18 Pa.C.S. § 3123(a)(2); 18 Pa.C.S. §
3701(a)(1)(ii); 18 Pa.C.S. § 3701(a)(1)(v); 18 Pa.C.S. § 2706(a)(1); 18
Pa.C.S. § 3921(a); and 18 Pa.C.S. § 903(c), respectively.
2
The jury also convicted McMillan of Rape, Robbery by Threat of Serious
Bodily Injury, and Criminal Conspiracy to Commit Robbery by Threat of
Serious Bodily Injury. The court sentenced McMillan to an aggregate
sentence of 20-40 years’ incarceration. McMillan’s appeal from his Judgment
of Sentence is pending before this Court. See Commonwealth v.
McMillan, No. 2490 EDA 2015.
A separate jury convicted Appellant of Criminal Solicitation (Witness
Solicitation). 18 Pa.C.S. § 902(a). The court sentenced Appellant to 3 ½ to
10 years’ incarceration, to be served consecutively to the sentence Appellant
challenges in the instant appeal. Appellant’s appeal from his Judgment of
Sentence for Criminal Solicitation (Witness Intimidation) is pending before
this Court. See Commonwealth v. Evans, 383 EDA 2016.
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On July 13, 2015, the court sentenced Appellant to an aggregate
sentence of 40-80 years’ incarceration, comprised of four consecutive terms
of 10 to 20 years’ incarceration on the convictions for Rape by Threat of
Forcible Compulsion, Involuntary Deviate Sexual Intercourse by Threat of
Forcible Compulsion, Robbery by Threat of Serious Bodily Injury, and
Criminal Conspiracy to Commit Robbery by Threat of Serious Bodily Injury
convictions, all first-degree felonies. The court imposed no further penalty
on the other convictions.
Appellant did not file a Post-Sentence Motion. On August 10, 2015,
Appellant filed a timely Notice of Appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following three issues for our review:
1. Did the trial court err in allowing the complainant, in
violation of the sequestration order, to return to the stand
to testify without allowing the defense to obtain
information as to what she was told by the District
Attorney, the officer, and a victim advocate to encourage
her to retake the witness stand?
2. Did the trial court err and deny Appellant due process in
allowing the Commonwealth to introduce evidence of
witness intimidation against Appellant in violation of
Pennsylvania Rules of Evidence 401, 402, 403, and 404,
when these allegations were not only irrelevant to the
alleged charges in the instant case, but unproven at the
time of trial and heavily in dispute. As such their
prejudicial impact far outweighed their probative value?
3. Did the trial court abuse its discretion in imposing an
aggregate sentence of 40 to 80 years because:
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(a) the sentence is effectively a life sentence and
constitutes an illegal sentence for the crimes
charged; and
(b) the maximum sentence imposed on four counts
which exceeded the aggravated range of sentences
running consecutively to each other is unduly harsh
considering the nature of the crime and the length of
the imprisonment imposed against a 22 year old?
Appellant’s Brief at 5-6.
In his first issue, Appellant claims the trial court abused its discretion
in allowing the victim to return to the witness stand, in violation of the
court’s sequestration order, without first permitting his counsel to ascertain
whether the victim had discussed the content of her testimony with the
District Attorney, a police officer, and a victim advocate, during the court’s
recess. Appellant’s Brief at 17-18. Appellant argues that, because the court
precluded his counsel from examining under oath those people to determine
what they said to the victim to convince her to continue testifying, the court
was unable to determine the appropriate remedy for violation of the
sequestration order. Id. at 18.
A trial court may sequester witnesses in order to “prevent a witness
from shaping his [or her] testimony with evidence presented by other
witnesses.” Commonwealth v. Henry, 706 A.2d 313, 320 (Pa. 1997)
(citation omitted). Whether there has been a violation of a sequestration
order is a question of fact for the trial court. Commonwealth v. Marinelli,
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690 A.2d 203, 219 (Pa. 1997). This Court will not overturn the decision of
the trial court where it is “supported by sufficient credible evidence.” Id.With respect to Appellant’s claim, the trial court opined as follows:
In the instant case, after the victim left the witness stand,
this [c]ourt took a fifteen minute recess. Prior to allowing
the witness to continue her testimony, this [c]ourt allowed
counsel to question the victim as to whether she discussed
her testimony while outside the courtroom. The victim
testified that she did not. This [c]ourt also identified the
individuals who spoke with the victim and asked each
person individually if the content of the victim’s testimony
was discussed. Each person represented to this [c]ourt
that her testimony was not discussed. Moreover, counsel
for the [d]efendants conceded that they had no basis [to]
contradict the representations made to this [c]ourt. This
[c]ourt therefore properly found that no violation of the
sequestration order occurred.
As to [Appellant’s] contention that the [c]ourt should have
inquired into the exact content of the communications,
such an inquiry would not have been relevant. The
purpose of sequestration is to prevent a witness from
shaping his or her testimony with evidence presented by
other witnesses. [ ] Therefore, the [c]ourt properly limited
its inquiry to whether the victim’s testimony was
discussed.
Trial Ct. Op. at 8-9 (citation omitted).
Our review of the evidence of record, including the trial transcript,
confirms the trial court’s conclusion that no violation of the court’s
sequestration order occurred. The victim left the witness stand abruptly
during her cross-examination, during which time the court recessed. The
victim then returned to the courtroom. The victim testified, and the parties
who spoke to the victim during the court’s recess reported, that they did not
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discuss the victim’s testimony. N.T., 3/10/14 (morning), at 126-27, 141-42.
Furthermore, neither counsel for Appellant nor counsel for McMillan reported
to the court having any reason to believe that the victim spent the court’s
recess discussing the content of her testimony. Id. at 124-26.
Moreover, permitting the victim to continue her testimony after the
recess did not undermine the purpose of sequestration—preventing a
witness from molding her testimony based upon testimony given by a
previous witness. The victim in this case was not present during the
testimony of any other witnesses and therefore, even after removing herself
from the witness stand during her testimony, could not have shaped her
testimony in accordance with testimony previously taken from other
witnesses. For these reasons, we conclude there was sufficient credible
evidence for the trial court to find that no sequestration violation took place.
Accordingly, Appellant is not entitled to relief on this issue.
In his second issue, Appellant claims that the trial court abused its
discretion by admitting evidence of his acts of witness intimidation and his
plan to induce the victim not to testify. Appellant’s Brief at 19. Upon Motion
by the Commonwealth, the trial court permitted, as proof of consciousness
of guilt, the admission of redacted portions of five prison telephone calls
between Appellant and his fiancée Kaleshia Cruz (“Cruz”), and a letter that
Appellant wrote to Cruz, which demonstrated that Appellant and Cruz
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planned to pay the victim not to testify at trial. The court also permitted
Cruz to testify.
Appellant argues that the prejudice to him outweighed the probative
value of this “irrelevant evidence,” and that the telephone calls, specifically,
did not suggest intimidation or consciousness of guilt.3 Id. at 21. We
disagree.
Initially, we note that,
[t]he standard of review employed when faced with a
challenge to the trial court's decision as to whether or not
to admit evidence is well settled. 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.
Abuse of discretion is not merely an error of judgment, but
rather 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.
Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (internal
citations omitted).
It is well-settled that “any attempt by a defendant to interfere with a
witness’s testimony is admissible to show a defendant’s consciousness of
guilt.” Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007).
3
To the extent that Appellant argues in his Brief that the trial court erred in
permitting the introduction of this evidence because his Witness Intimidation
charges were severed from the charges herein, and, therefore, evidence of
the acts giving rise to those charges were inadmissible, we find this claim
waived as Appellant did not raise this alternative theory of error in his
Pa.R.A.P 1925(b) statement, and the trial court did not address it. See
Pa.R.A.P. 1925(b)(4)(ii), (vii).
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In the instant matter, the trial court explained its evidentiary ruling as
follows:
The evidence admitted at trial established that following
his arrest, [Appellant] and his fiancée, Kalesha Cruz,
entered into a conspiracy to identify and locate the victim
and then to offer her money in an effort to persuade her
not to appear and/or testify in court. This [c]ourt
permitted the Commonwealth to introduce a letter written
by [Appellant] shortly after his arrest, recorded prison calls
between [Appellant] and Cruz and Cruz’s in-court
testimony as evidence of consciousness of guilt.
In the letter [Appellant] wrote:
I was wrong. We were supposed to rob her, that’s it.
But things got out of hand. She a girl from Back
Page prostituting for money. If you can get in touch
with her and offer her money, I’m sure she won’t
show up. You just need to get the correct
information . . . .
In a recorded call that occurred on August 14, 2014, Cruz
advised [Appellant], “No luck yet. I’m searching. I sent
your brother the information, so hopefully he’s been
searching.” Cruz testified that she was explaining the
status of her efforts to find the victim. In a recorded call
that occurred on August 30, 2014, Cruz told [Appellant]
that she had to think of what to say. At trial, Cruz testified
that she was referring to what she should say when she
talked to the victim. During the August 30th conversation,
[Appellant] told Cruz that, if she talks to the victim, she
should mention the money first. In a recorded call that
occurred on August 31, 2014, Cruz told [Appellant] that
she called “the number.” At trial, Cruz testified that this
comment referred to the fact that she had called the
telephone number for “Backpage,” the website [Appellant]
and McMillan used to contact the victim. Cruz also told
[Appellant] that she would try to speak with the victim
when the victim appeared to testify at an upcoming court
date.
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. . . Evidence concerning [Appellant’s] attempt to offer the
victim a bribe not to testify was therefore admissible
against [Appellant].
Trial Ct. Op. at 5-6 (citations omitted).
We agree with the trial court. After reviewing the evidence of record,
and the relevant authority, we conclude the trial court did not abuse its
discretion in admitting the evidence and testimony cited supra, for the
purposes of establishing Appellant’s consciousness of guilt.
Additionally, as noted by the trial court, it unambiguously instructed
the jury that “any evidence of witness intimidation could only be considered
by the jury for purposes of determining consciousness of guilt as to the
crimes charged in the instant matter and not for any other reason[.]” Id. at
7. Because a “jury is presumed to have followed the trial court’s
instructions[,]” we likewise agree with the trial court that Appellant was not
prejudiced by the admission of the challenged evidence. Commonwealth
v. Burno, 94 A.3d 956, 977 (Pa. 2014). Accordingly, Appellant’s claim fails.
In his third issue, Appellant claims to challenge both the legality of and
the discretionary aspects of his sentence. First, Appellant argues that his 40
to 80 year sentence is “illegal because it is in essence a life term.”
Appellant’s Brief at 23. Then, Appellant argues that the trial court abused its
discretion in sentencing Appellant in the aggravated range and in imposing
consecutive sentences. Id. at 25-28. We consider these issues in turn.
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Initially, we reiterate that Appellant did not file a Post-Sentence Motion
in which he challenged the sentence imposed by the trial court. However,
Appellant purports to challenge the legality of his sentence. When a
defendant challenges the trial court’s authority to impose a specific
sentence, a defendant has raised a legality of sentence challenge.
Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011). A challenge to
the legality of sentence is non-waivable, and may be considered for the first
time on appeal. See, e.g., Commonwealth v. Robinson, 931 A.2d 15,
19-20 (Pa. Super. 2007).
With respect to his first sentencing sub-issue, Appellant has
mischaracterized it as a challenge to the legality of his sentence. Within his
Brief, Appellant argues only that his sentence is excessive given his age at
the time he committed the crimes for which the jury convicted him and the
likelihood he will serve most, if not all, of his sentence. Appellant’s Brief at
23-24.
Herein, the trial court sentenced Appellant to four consecutive terms of
ten to twenty years’ incarceration. Appellant concedes that these sentences
are within the statutory maximums, and acknowledges that, “Pennsylvania
does not recognize an indeterminate sentence as a life sentence where a
prisoner is eligible for parole during his lifetime.” Id. at 23 (citing
Commonwealth v. Baker, 78 A.3d 1044, 1052 (Pa. 2013). Accordingly, as
this issue does not relate to the trial court’s authority to impose a sentence
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pursuant to the statutes under which the jury convicted Appellant, he has
not challenged the legality of his sentence.
In his second allegation of error within his challenge to his sentence,
Appellant contends that the trial court imposed an excessive sentence. This
averment challenges the discretionary aspects of his sentence. After
reviewing the record, we conclude that Appellant has waived this issue on
appeal.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa. Super. 2012) (en banc) (citation omitted). Prior to reaching the merits
of a discretionary sentencing issue:
We conduct a four[-]part analysis to determine: (1)
whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider
and modify sentence, see [Pa.R.Crim.P. 720]; (3)
whether appellant's brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted) (emphasis added).
Instantly, Appellant failed to preserve the issue at the time of
sentencing or in a Post-Sentence Motion. Accordingly, Appellant has waived
his right to challenge to the discretionary aspects of sentence on appeal.
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Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2016
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