Com. v. Williams, D. ( 2014 )


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  • J-S56015-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    DARAK WILLIAMS
    Appellant                No. 2266 MDA 2013
    Appeal from the Judgment of Sentence February 1, 2011
    In the Court of Common Pleas of Lackawanna County
    Criminal Division at No(s): CP-35-CR-0001479-2009
    BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
    MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 31, 2014
    Appellant, Darak Williams, beat a three-year-old child to death.   He
    appeals nunc pro tunc from the judgment of sentence for first-degree
    murder entered February 1, 2011, by the Honorable Michael J. Barrasse,
    Court of Common Pleas of Lackawanna County. We affirm.
    On February 21, 2008, three-year-old K.S. (the “victim”), who
    appeared lifeless, and whose body exhibited signs of severe trauma, was
    taken to Community Medical Center by Williams and the victim’s mother, co-
    defendant Kashema Reddish. The victim was pronounced dead shortly after
    her arrival. A subsequent autopsy attributed the cause of death to “multiple
    traumatic injuries,” specifically to the back of the head.     After initially
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    J-S56015-14
    speaking with police, Williams and Reddish fled Lackawanna County, leaving
    Reddish’s son in the custody of Children and Youth Services. Williams and
    Reddish were later apprehended in Buffalo, New York, on March 8, 2009.
    Subsequent to his arrest, Williams was charged with Murder in the
    First Degree,1 Murder in the Third Degree,2 and Endangering the Welfare of
    a Child.3    The third-degree murder charge was withdrawn prior to trial.
    Following a bench trial, on February 1, 2011, Williams was convicted of first-
    degree murder and endangering the welfare of a child and sentenced to life
    imprisonment. On April 28, 2011, Williams filed an untimely Post Sentence
    Motion for Judgment of Acquittal, which the trial court denied following a
    hearing. With the aid of newly appointed counsel, this nunc pro tunc appeal
    followed.
    Preliminarily, we note that Williams has waived the challenges to the
    weight of the evidence he raises in issues two through five. “[A] weight of
    the evidence claim must be preserved either in a post-sentence motion, by a
    written     motion    before    sentencing,      or   orally   prior   to   sentencing.”
    Commonwealth v. Thomson, 
    93 A.3d 478
    , 490 (Pa. Super. 2014) (citing
    Pa.R.Crim.P. 607).       Failure to do so will result in waiver of the claim on
    appeal. See id.
    ____________________________________________
    1
    18 Pa.C.S.A. § 2502(a).
    2
    18 Pa.C.S.A. § 2502(c).
    3
    18 Pa.C.S.A. § 4304.
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    Williams failed to raise a challenge to the weight of the evidence to
    support his convictions either prior to sentencing or in his untimely post-
    sentence motion filed April 28, 2011.4             Therefore, we are precluded from
    reviewing these claims on appeal.
    The remaining issues Williams raises for our review are as follows:
    1. Whether there was sufficient evidence to convict [Williams]
    since the Commonwealth was unable to establish that [Williams]
    had exclusive custody of the victim at the time the fatal injuries
    were inflicted thereby making him responsible for the killing
    and/or showing he had the specific intent to kill or acted with
    requisite malice needed for conviction of First Degree Murder
    and/or Third Degree Murder?
    *        *    *
    6. Whether the trial court committed an error of law and/or an
    abuse of discretion in refusing [Williams’s] request for new,
    private counsel made prior to trial after expressing his lack of
    confidence in current counsel?
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    4
    Williams’s untimely post-sentence motion requesting a judgment of
    acquittal raised a challenge to the sufficiency of the evidence to support his
    first-degree murder conviction. At the hearing held on the motion, the
    Commonwealth argued that the motion sounded more as a challenge to the
    weight of the evidence, rather than to the sufficiency of the evidence. See
    N.T., Hearing, 6/3/11 at 5-6. Although the Commonwealth noted that it did
    not object to arguing a challenge to the weight of the evidence, Williams did
    not alter his claim to include a weight of the evidence challenge either at the
    hearing or at any time thereafter. The trial court summarily dismissed the
    motion at the conclusion of the hearing. See 
    id. at 11.
    We do not find the
    Commonwealth’s characterization of Williams’s argument sufficient to
    preserve these claims on Williams’s behalf. At any rate, even if Williams had
    raised a challenge to the weight of the evidence, the untimely nature of his
    post-sentence motion would still have rendered those claims waived.
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    7. Whether the trial court committed an error of law and/or
    abuse of discretion in failing to issue a sua sponte declaration of
    mistrial on the false testimony provided by a key witness of the
    prosecution which ultimately had a substantial impact on the
    verdict?
    8. Whether the trial judge committed an abuse of discretion in
    failing to [sua sponte] recuse himself from the non-jury trial
    even though he presided over all pre-trial motions of both
    [Williams] and his Co-Defendant, and accepted the guilty plea
    from Co-Defendant who ultimately testified against [Williams] at
    his non-jury trial?
    Appellant’s Brief at 5-6.
    Williams first argues that the evidence was insufficient to support his
    conviction for murder in the first degree.5      We review a challenge to the
    sufficiency of the evidence as follows.
    The standard we apply when reviewing the sufficiency of the
    evidence is whether viewing all the evidence admitted at trial in
    the light most favorable to the verdict winner, there is sufficient
    evidence to enable the fact-finder to find every element of the
    crime beyond a reasonable doubt. In applying the above test, we
    may not weigh the evidence and substitute our judgment for the
    fact-finder. In addition, we note that the facts and circumstances
    established by the Commonwealth need not preclude every
    possibility of innocence. Any doubts regarding a defendant’s guilt
    may be resolved by the fact-finder unless the evidence is so
    weak and inconclusive that as a matter of law no probability of
    fact may be drawn from the combined circumstances. The
    Commonwealth may sustain its burden of proving every element
    of the crime beyond a reasonable doubt by means of wholly
    circumstantial evidence. Moreover, in applying the above test,
    the entire record must be evaluated and all evidence actually
    received must be considered. Finally, the trier of fact while
    passing upon the credibility of witnesses and the weight of the
    ____________________________________________
    5
    The charge of murder in the third degree was dropped prior to trial.
    Therefore, we limit our discussion to the sufficiency of the evidence as it
    relates to murder in the first degree.
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    evidence produced is free to believe all, part or none of the
    evidence. Furthermore, when reviewing a sufficiency claim, our
    Court is required to give the prosecution the benefit of all
    reasonable inferences to be drawn from the evidence.
    However, the inferences must flow from facts and
    circumstances proven in the record, and must be of such volume
    and quality as to overcome the presumption of innocence and
    satisfy the jury of an accused’s guilt beyond a reasonable doubt.
    The trier of fact cannot base a conviction on conjecture and
    speculation and a verdict which is premised on suspicion will fail
    even under the limited scrutiny of appellate review.
    Commonwealth v. Slocum, 
    86 A.3d 272
    , 275-276 (Pa. Super. 2014)
    (citation omitted).
    “To obtain a first-degree murder conviction, the Commonwealth must
    demonstrate that a human being was unlawfully killed, the defendant
    perpetrated the killing, and that the defendant acted with malice and a
    specific intent to kill.” Commonwealth v. Burno, 
    94 A.3d 956
    , 969 (Pa.,
    2014) (citation omitted). “The Commonwealth may use wholly circumstantial
    evidence to discharge its burden of showing the accused intentionally killed
    the victim … and circumstantial evidence can itself be sufficient to prove any
    or every element of the crime….” Commonwealth v. Perez, 
    93 A.3d 829
    ,
    841 (Pa. 2014).
    Williams first argues that the Commonwealth failed to establish that he
    perpetrated the killing. See Appellant’s Brief at 19. In order to prove that
    Williams was responsible for the victim’s death, the Commonwealth relied on
    the principle that where an adult has sole custody of a child for a period of
    time, and, during that time the child suffers wounds which unquestionably
    are neither self-inflicted nor accidental, the evidence is sufficient to allow a
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    jury to infer that the adult inflicted the injuries. See Commonwealth v.
    Paquette, 
    301 A.2d 837
    , 840 (Pa. 1973).
    At trial, forensic pathologist Dr. Wayne Ross testified that the
    traumatic injury which caused the victim’s death likely occurred within two
    to three hours of the time when the victim arrived at the hospital at 4:07
    p.m. See N.T., Non-Jury Trial, 1/27/11 at 56-57. It is undisputed that at
    this point Williams had exclusive custody of the victim. However, Williams
    relies upon testimony regarding the victim’s body temperature when she
    arrived at the hospital to extrapolate that the injury could have occurred as
    early as 7:00 a.m., when the victim’s mother was still at home and Williams
    therefore did not have exclusive custody of the victim.      This argument is
    unavailing. We reiterate that the Commonwealth need not preclude every
    possibility of innocence. See Slocum.
    The trial court clearly resolved any conflicting evidence regarding the
    time period in which the fatal injury occurred in favor of the Commonwealth.
    Based upon Dr. Ross’s testimony, and viewing the evidence in the light most
    favorable to the Commonwealth as verdict winner, we find sufficient
    evidence existed that that the injury occurred when the victim was in
    Williams’s exclusive custody such that the court could properly infer that
    Williams inflicted the injuries. See Paquette.
    Williams’s argument that the evidence failed to show that he
    possessed the requisite specific intent to kill the victim is similarly without
    merit. “Specific intent to kill can be proven where the defendant knowingly
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    applies deadly force to the person of another.” Commonwealth v. Stokes,
    
    78 A.3d 644
    , 650 (Pa. Super. 2013) (citation omitted). “The Commonwealth
    can prove this specific intent to         kill from circumstantial evidence.”
    Commonwealth v. Tharp, 
    830 A.2d 519
    , 523-524 (Pa. 2003) (citation
    omitted).   The trial court stated its reasons for finding Williams guilty of
    first-degree murder as follows:
    First, the forensic pathologist as well as the emergency room
    physician testimony is clear and unequivocal that the injuries
    that were inflicted upon [the victim], specifically, the diffuse
    axonal injury in the pons area of the brain, was so severe that
    she could not live beyond hours after the injury was inflicted.
    There is not a scintilla of medical evidence to the contrary that
    these injuries could have occurred earlier.
    The record is equally clear and without conflict that [Williams]
    had exclusive custody of [the victim] during the time period in
    which the doctor’s [sic] testified that the fatal injuries occurred.
    [Williams] has repeatedly indicated that he assumed parental
    guardian responsibility with regard to the victim that day.
    The question then in regard to first degree murder, the [c]ourt
    finds that the evidence was sufficient to show that [Williams’s]
    actions manifested a specific intent to kill given the brutality of
    the assault. A specific intent to kill is the state of mind which is
    a killing which is willful, deliberate and premeditated. Specific
    intent may be proven where the defendant knowingly applies
    deadly force to another person.
    *           *            *
    If the deadly force is knowingly applied by the actor to the
    person of another, the intent to take a life is as evidence [as] if
    the actor stated the intent to kill at the time the force was
    applied.
    In addition, it’s based upon the number, type and severity of the
    victim’s injuries. In fact, I find sufficient evidence to find beyond
    a reasonable doubt that the defendant killed with malice.
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    The attack upon the brutal – the brutal assault upon the vital
    organs and the injuries that were the proximate cause of her
    death are clear by the testimony through the physicians and the
    experts.     As importantly, the extensive physical injuries
    [Williams] inflicted upon the child, his cold hearted failure to
    timely seek medical assistance and the contrary explanations
    that he offered as to how the child sustained her injuries were
    sufficient to support the inference that [Williams] killed the
    victim intentionally, deliberately, and with premeditation.
    N.T., Non-jury Trial, 2/1/2011 at 2-5. The record supports the trial court’s
    analysis.
    Dr. Ross testified that in addition to numerous healing bone fractures
    and existing injuries, he observed over 50 different areas of fresh injury to
    the child’s body, including fresh hemorrhages or bruises to the chest, back,
    buttocks, lower legs, face, lips, and jaw, consistent with repeated blunt force
    trauma. See N.T., Non-jury Trial, 1/27/11 at 12-19. Dr. Ross additionally
    testified the victim exhibited fresh abrasions and bruising to her neck, and
    that the mechanism of injury would be consistent with strangulation. See
    
    id. at 20-21.
    All of these injuries occurred within less than 24 hours. See
    
    id. at 12-21.
       Most significantly, Dr. Ross testified that the victim had
    suffered a fatal brain injury consistent with the application of extreme force
    somewhere around 12:30 to 1:30 p.m., when she was in Williams’s
    exclusive   custody,   and   that   the    victim would never   have   regained
    consciousness after this injury. See 
    id. at 51-57.
    Based upon the litany of traumatic injury inflicted upon vital parts of
    the child victim’s body – and the traumatic head injury inflicted by Williams
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    in particular – we do not hesitate to find the evidence sufficient to suggest a
    specific intent to kill.
    Williams argues in his sixth issue raised on appeal that the trial court
    violated his constitutional right to counsel when it denied his request for a
    continuance to retain new private counsel. The decision to grant or deny a
    request for a continuance is within the sound discretion of the trial court.
    See Commonwealth v. Prysock, 
    872 A.2d 539
    , 541 (Pa. Super. 2009). A
    court’s decision to deny a request for a continuance
    will be reversed only upon a showing of an abuse of discretion.
    As we have consistently stated, an abuse of discretion is not
    merely an error judgment. Rather, discretion is abused when the
    law is overridden or misapplied, or the judgment exercised is
    manifestly unreasonable, or the result of partiality, prejudice,
    bias, or ill-will, as shown by the evidence or the record....
    
    Id. (internal citations
    and quotation marks omitted).
    Although the constitutional right to counsel guaranteed by both the
    Sixth Amendment to the United States Constitution and by Article I, Section
    9 of the Pennsylvania Constitution “entitle an accused to choose at his own
    cost and expense any lawyer he may desire,” this right is not absolute. 
    Id. at 542
    (citation omitted).
    Rather, the right of the accused to choose his own counsel, as
    well as the lawyer's right to choose his clients, must be weighed
    against and may be reasonably restricted by the state’s interest
    in the swift and efficient administration of criminal justice. Thus,
    this Court has explained that while defendants are entitled to
    choose their own counsel, they should not be permitted to
    unreasonably clog the machinery of justice or hamper and delay
    the state's efforts to effectively administer justice.
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    Id. (internal quotes
    and citations omitted).
    On January 24, 2011, at the start of the second day of the bench trial,
    the trial court indicated it had received a pro se letter from Williams stating
    that he had paid for and retained new private counsel, and that he no longer
    wished to proceed with his current private counsel, Carlos Martir, Esquire.
    See N.T., Non-Jury Trial, 1/24/11 at 3. When colloquyed by the trial court,
    Williams was unable to state with any specificity in what manner he deemed
    counsel’s representation to have been deficient.     Attorney Martir testified
    that he was willing and able to proceed with the trial without a continuance.
    See 
    id. at 6-8.
       Further, Paul Walker, Esquire, the new private counsel
    Williams purportedly retained, testified that he had never met with Williams
    and had not been paid by Williams or a member of his family. See 
    id. at 9.
    Attorney Walker testified that he had received a phone call indicating
    Williams’s interest in hiring his services but had not heard any more
    thereafter.   See 
    id. Attorney Walker
    further stated that he had not
    reviewed any evidence or discovery in the case, had not met with Williams
    or his family, and had no connection to the case. See 
    id. at 10.
    In denying Williams’s request for a continuance to retain new private
    counsel, the trial court noted that it had previously permitted Williams’s
    appointed counsel to withdraw so that Williams could retain Attorney Martir.
    See 
    id. at 15.
    The court further noted that Williams had never previously
    indicated any objection to Attorney Martir’s representation, that Attorney
    Martir was qualified and prepared to represent Williams at trial, and that the
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    court found Williams’s request to be a bad faith dilatory tactic. See 
    id. at 16.
    We find no abuse of discretion. The “right to counsel does not give [a
    defendant] the right to delay the trial indefinitely because he is dissatisfied
    with   competent     counsel   …   ready   and   willing   to   represent   him.”
    Commonwealth v. Ingram, 
    591 A.2d 734
    , 738 (Pa. Super. 1991) (citation
    and internal quotation marks omitted).        Given the wide latitude the trial
    court had already given Williams regarding his retention of qualified private
    counsel, and Williams’s failure to provide any substantial reason why his
    current counsel was deficient, we cannot find that the trial court abused its
    discretion in denying Williams a continuance in order to employ new private
    counsel.
    Williams next argues that the trial court erred by failing to sua sponte
    declare a mistrial based upon the allegedly false testimony of the victim’s
    mother at trial.   See Appellant’s Brief at 44. Pennsylvania Rule of Criminal
    Procedure 605 provides that a trial court may declare a mistrial only for
    reasons of “manifest necessity.” Pa.R.Crim.P. 605(B).
    In criminal trials, declaration of a mistrial serves to
    eliminate the negative effect wrought upon a defendant
    when prejudicial elements are injected into the case or
    otherwise discovered at trial. By nullifying the tainted
    process of the former trial and allowing a new trial to
    convene, declaration of a mistrial serves not only the
    defendant's interest but, equally important, the public’s
    interest in fair trials designed to end in just judgments.
    Accordingly, the trial court is vested with discretion to
    grant a mistrial whenever the alleged prejudicial event
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    may reasonably be said to deprive the defendant of a fair
    and impartial trial. In making its determination, the court
    must discern whether misconduct or prejudicial error
    actually occurred, and if so, ... assess the degree of any
    resulting prejudice. Our review of the resulting order is
    constrained to determining whether the court abused its
    discretion. Judicial discretion requires action in conformity
    with [the] law on facts and circumstances before the trial
    court after hearing and consideration. Consequently, the
    court abuses its discretion if, in resolving the issue for
    decision, it misapplies the law or exercises its discretion in
    a manner lacking reason.
    Commonwealth v. Culver, 
    51 A.3d 866
    , 871 (Pa. Super. 2012) (citation
    omitted).
    At trial, the victim’s mother denied that the victim exhibited any
    injuries prior to the traumatic injury that caused the child’s death. Williams
    contends that this testimony was directly rebutted by Dr. Ross’s testimony
    that the victim’s body exhibited a history of chronic or healing injuries that
    precipitated the traumatic injury inflicted on February 21, 2008.          See
    Appellant’s Brief at 47. Williams maintains that the Commonwealth’s failure
    to bring to light the alleged false testimony of its own witness amounts to
    prosecutorial misconduct such that a new trial is necessary. See 
    id. at 48.
    Williams’s claim is a thinly veiled attack on a witness’s credibility, the
    determination of which “is within the sole province of the trier of fact who is
    free to believe all, part or none of the evidence.”       Commonwealth v.
    Tielsch, 
    934 A.2d 81
    , 94 (Pa. Super. 2007) (citation omitted).             It is
    unwarranted and impractical to insist that a trial court declare a mistrial
    whenever confronted with conflicting testimony. To do so would bring the
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    judicial process to an utter standstill. Simply put, we cannot find that the
    mere existence of conflicting testimony in a criminal case constitutes
    manifest necessity such that a new trial is warranted. Therefore, the trial
    court did not abuse its discretion in failing to sua sponte declare a mistrial.
    Lastly, Williams argues that Judge Barrasse abused his discretion in
    failing to sua sponte recuse himself from the non-jury trial, after he
    accepted co-defendant Kashema Reddish’s guilty plea to               involuntary
    manslaughter. See Appellant’s Brief at 49. “As a general rule, a motion for
    recusal must initially be directed to and decided by the jurist whose
    impartiality is being challenged.” 
    Tharp, 830 A.2d at 534
    (citation omitted).
    “Once a trial is complete with entry of a verdict or judgment, a party is
    deemed to have waived his right to have a judge disqualified unless he can
    meet the standard regarding after-acquired evidence, i.e. the evidence could
    not have been brought to the attention of the trial court in the exercise of
    due diligence and the existence of the evidence would have compelled a
    different result in the case.” 
    Id. (citation omitted).
    Here, Williams admittedly did not raise a recusal motion in the court
    below. Moreover, he does not claim that his knowledge of the trial court’s
    participation in the co-defendant’s guilty plea proceedings constitutes after-
    acquired evidence that would have compelled a different result in the case.
    Accordingly, we are constrained to find that Williams has waived his right to
    seek the trial court’s recusal. See 
    Tharp, supra
    .
    Judgment of sentence affirmed. Jurisdiction relinquished.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/31/2014
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Document Info

Docket Number: 2266 MDA 2013

Filed Date: 10/31/2014

Precedential Status: Precedential

Modified Date: 11/1/2014