Com. v. White, K. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KHALIL R. WHITE, :
:
Appellant : No. 110 EDA 2014
Appeal from the Judgment of Sentence May 14, 2012,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0005013-2011
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 15, 2014
Khalil R. White (“White”) appeals from the judgment of sentence
entered following his convictions of robbery, theft by unlawful taking and
conspiracy.1 Having found no merit to the issues White raises on appeal, we
affirm.
The trial court summarized the facts underlying White’s convictions as
follows:
On October 21, 2010, [White], his cousin Rashieda
White, Latif Miller and others were inside apartment
3A at 3147 North 16th Street in Philadelphia. At
10:45 pm, Rashieda White ordered food from Bravo’s
Pizza. Mohamed El-Amzali was the delivery driver
for Bravo [sic] Pizza, who delivered the food to 3147
North 16th Street. When he arrived at the building,
El-Amzali called Rashieda White, who answered and
told him she was coming. El-Amzali waited
approximately ten minutes and called her again.
1
18 Pa.C.S.A. §§ 3701, 3921, 903.
*Retired Senior Judge assigned to the Superior Court.
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This time White requested that El-Amzali bring the
food to the front door of the building. El-Amzali
exited his vehicle with the food and approached the
front door of the apartment building.
When El-Amzali got to the building’s front door
to deliver the food, Latif Miller and [White] were
waiting for him and opened the doors. Miller had a
gun in his left hand, and [White] covered his face
with a dark piece of clothing. When the door was
opened, neither Miller nor [White] said anything to
El-Amzali. Instead, Miller grabbed the food with his
right hand and fired one shot at El-Amzali. The
bullet struck El-Amzali in the stomach, and he
immediately collapsed. [White] and Miller turned
and fled down the hallway and into apartment A3.
[White] and Miller jumped through a rear window
and fled the building.
El-Amzali immediately called the police. After
[White] and Miller fled the scene, Rashieda White
and several other girls exited apartment 3A. They
entered the hallway and told El-Amzali to leave.
Rashieda White kicked the fired cartridge casing
down the hallway before she left the scene.
***
Officer Brian Graves was the first police officer
to arrive on the scene. Officer Graves observed El-
Amzali rolling on the ground in the hallway and
noticed that he was shot and bleeding from his
stomach area. Officer Graves helped El-Amzali into
an ambulance, which transported him to Temple
Hospital. El-Amzali received treatment for six days
in the hospital. He has a large permanent scar from
approximately midway on his sternum down to just
below his belly button. … .
Trial Court Opinion, 5/19/14, at 1-3 (citation to notes of testimony omitted).
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Following a three-day jury trial, White was convicted of the offenses
listed above. He was subsequently sentenced to a total of five to ten years
of incarceration. White filed a post-sentence motion, which the trial court
denied. This timely appeal follows, in which White presents two issues for
our review.
In his first issue, White argues that there was insufficient evidence to
support his convictions. We review this issue mindful that,
[w]hen evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable
inferences in the light most favorable to the
Commonwealth, the fact[-]finder reasonably could
have determined that each element of the crime was
established beyond a reasonable doubt. This Court
considers all the evidence admitted, without regard to
any claim that some of the evidence was wrongly
allowed. We do not weigh the evidence or make
credibility determinations. Moreover, any doubts
concerning a defendant's guilt were to be resolved by
the fact[-]finder unless the evidence was so weak
and inconclusive that no probability of fact could be
drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).
White concedes that there was sufficient evidence to establish that he
was present during the robbery of El-Amzali, but argues that there was no
direct or circumstantial evidence to establish that he participated in the
robbery. White’s Brief at 11-12.2 White characterizes his convictions as
2
White expressly forgoes arguing that the evidence was insufficient as to
any particular element of any offense of which he was convicted and argues
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based upon speculation and conjecture, and therefore impermissible. Id. at
13-14. We do not agree.
The record in the present case contains plentiful evidence that White
was a participant in the robbery of El-Amzali. At trial, El-Amzali testified
that he was making a delivery to 3147 North 16th Street on the night in
question. N.T., 3/7/12, at 27. When he arrived, he called the woman who
placed the order and she asked him to come into the building. Id. at 28. As
he entered the building to make the delivery, two men were standing in the
hallway and opened the interior door to the apartment building for him. Id.
at 28, 58. The first man was holding a gun in his extended left hand, and
the other man stood just behind him with a cloth covering his face below the
eyes. Id. at 29-30. The man with the gun shot El-Amzali and took the food
from him. Id. at 31. Both men then ran into apartment A3, which was
Rashieda’s apartment. Id. at 31, 37. Tina Allen (“Allen”) testified that she
lives in apartment A1. N.T., 3/6/12, at 19. At approximately 10:45 that
evening, she heard a gunshot and looked out of her door. Id. In a
statement to the police immediately following the incident, Allen stated that
when she looked out of her door, she saw White run into A3, Rashieda’s
apartment. Id. at 36-37. Allen stated that she had seen White almost
every day and that she had known him for about ten years at the time. Id.
only that the evidence was insufficient to prove anything other than his mere
presence at the scene of the crime. White’s Brief at 11.
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at 36-37. She identified White in a photo array at the time she gave her
statement to the police. Id. at 38. Additionally, Rashieda admitted that she
called for the delivery of food so that White and Miller could rob the
deliveryman. N.T., 3/7/12, at 141. After the shooting, Miller and White re-
entered Rashieda’s apartment and exited through a window in her
apartment. N.T., 3/7/12, at 8; N.T., 3/6/12, at 20; N.T., 3/7/12, at 31.
This evidence - most notably, White’s presence with Miller at the
threshold of the building, his efforts to conceal his identity, his immediate
flight with Miller through the window and Rashieda’s admission as to the
conspiracy to rob the deliveryman – is sufficient to support the finding that
White was a participant in the events that occurred on the night in question,
and not merely present at the scene when a crime was committed by others.
White relies on the Pennsylvania Supreme Court’s decision in
Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), but this reliance
is misplaced. In Karkaria, the defendant was charged with raping his step-
sister between April and September 1984. At trial, the victim testified that
the defendant assaulted her only when he acted as her babysitter,
beginning in 1981. The victim and the defendant testified, however, that by
April 1984, the defendant was no longer acting as the victim’s babysitter.
There was absolutely no evidence to support a finding that the defendant
assaulted the victim during the period of time upon which the charges were
based. Accordingly, the Supreme Court concluded that the evidence was
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insufficient to support the verdict. Karkaria, 625 A.2d at 1171-72. In
contrast, as recounted above, in this case there is ample evidence to support
the conclusion that White participated in the robbery. As such, we reject
White’s claim.
In his second issue, White argues that the verdicts are against the
weight of the evidence.3
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. 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. 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.
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[,] [t]he
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
3
White preserved this claim for appeal by raising it his post-sentence
motion. See Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super.
2014) (“[A] weight of the evidence claim must be preserved … in a post-
sentence motion[.] … Failure to properly preserve the claim will result in
waiver.”); Pa.R.Crim.P. 607.
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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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the
original) (citations omitted).
Accordingly, we are mindful that as we review White’s claim, we are
not passing on the underlying question of whether the verdicts were against
the weight of the evidence, but rather we are considering whether the trial
court abused its discretion in denying his motion for a new trial based upon
his claim that the verdict was against the weight of the evidence. We are
focused, therefore, on evidence that the trial court’s ruling 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.” Id.
White fails to appreciate the standard and scope of our review. He
frames his argument in terms of the jury’s failure to make certain findings,
and does not present any argument as to how he believes the trial court
abused its discretion in denying his post-sentence motion. White directs his
entire argument to the underlying question of whether his convictions are
against the weight of the evidence. As stated above, this is not the question
before us for review.
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White has failed to provide us with relevant argument relative to our
standard of review, and this Court will not develop an argument on his
behalf. See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super.
2006). In addition, however, our independent review of the record provides
us with ample support for the conclusion that the trial court did not abuse its
discretion in deciding that the verdicts in this case were not against the
weight of the evidence. We therefore find no merit to White’s claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2014
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