Com. v. Rogers, K. ( 2017 )

J-S04009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAREEM ROGERS,
Appellant No. 3139 EDA 2015
Appeal from the Judgment of Sentence April 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012380-2013
BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 03, 2017
Appellant, Kareem Rogers, appeals from the judgment of sentence
entered on April 17, 2015, in the Philadelphia County Court of Common
Pleas. We affirm.
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court
provided the following factual background:
Around 1:30 P.M. on March 26, 2013, Stacey Berry
(“Berry”) also known as “Trapp”[1] was shot and killed by
Appellant following an argument on West Duncannon Street in
the City and County of Philadelphia. Berry sold marijuana in the
area, and Appellant’s sale of drugs in the same area had caused
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Throughout Appellant’s brief and the certified record, the decedent, Mr.
Stacey Berry, is referred to by the nicknames “Trip,” “Tripp,” and “Trapp.”
Appellant’s Brief at 8-14; N.T., 4/9/15, at 7, 87.
J-S04009-17
ongoing tension in the two (2) months preceding the incident.
Kaeri Alvarez (“Alvarez”) was eating lunch on Syndenham
Avenue facing West Duncannon Street when he saw Berry, who
was unfamiliar to him, on the corner with a group. Appellant and
Eric Fuller (“Fuller”) also known as “Geezer” who were also
unfamiliar to Alvarez walked up the 5100 block of Syndenham
Avenue toward Berry and an argument ensued. During the
argument, Berry took off his jacket and it dropped to the
ground. Berry and Appellant parted ways, and approximately
five to ten (5-10) minutes later Berry returned to retrieve his
jacket. Paul Lee (“Lee”), Berry’s childhood friend, saw Appellant
walk towards Berry with a gun in his hand. Appellant was
accompanied by Fuller. Both Appellant and Fuller were known to
Lee. Lee heard someone yell, “There he go, right there, Trapp”
and saw Appellant open fire on Berry. Berry tried to run away
while Appellant was shooting at him, but was struck by a bullet
and eventually collapsed in the middle of West Duncannon
Street. Alvarez called the police as he went to the spot where
Berry fell. Alvarez was unable to make an identification of the
shooter, however[, he] was able to identify Berry from a photo
shown to him by police.
Akinlaibi Frazier (“Frazier”) also known as “Akee” saw
Appellant walking away after Berry was shot. Keith Pryer
(“Pryer”) who lived on northeast corner of 16th and Duncannon
Streets, was on his lunch break when he saw Berry arguing with
Appellant. Soon after Pryer returned to his task, he was notified
that Berry had been shot and drove to Berry’s location. Pryer
attempted to move Berry and take him to a hospital, however
officers that arrived on the scene instructed Pryer not to touch
Berry. A medic unit transported Berry to Albert Einstein Medical
Center.
Assistant Medical Examiner Dr. Albert Chu reviewed the
autopsy of Berry which was performed by Dr. Marlon Osborne.
The cause of death was determined to be one (1) penetrating
gunshot wound to the chest. The bullet entered the central chest
whereupon it entered the heart and the right lung. The manner
of death was found to be homicide. Bullet holes were found in a
window and wall of Pryer’s home and a bullet was recovered
from that same location. A bullet was also recovered from a car
that was parked on the 1500 block of West Duncannon Street at
the time of the shooting. Based on the path of the bullet, it
appeared that the bullet was fired from [the] direction of
-2-
J-S04009-17
Syndenham Avenue. Ballistics analysis determined that the
bullets recovered from the house, car, and from the body of
Berry were all fired from the same gun. The Appellant did not
have a valid license to carry a firearm.
After the shooting, Appellant went to the home of Kareem
Williams (“Williams”). In a statement to police, Williams
recounted that Appellant was rolling around on the floor and was
acting nervous. Appellant said, “You gotta get me out of here.
You gotta get to my peep’s house” and eventually left the house
through Williams’ back door. On May 13, 2013, Fuller made a
statement to Detective John Verrecchio (“Detective Verrecchio”),
the assigned detective on the case, wherein Fuller said that
Appellant shot first with a revolver, and Berry had a gun and
shot back.
At trial, counsel posed a series of questions to Detective
Verrecchio on cross-examination concerning documentation
practices of the Philadelphia Police Department. Counsel asked if
there would ever be an instance where a Transport to Homicide
form (a 75-48 or a “Transportation 48”) would be filed but no
other documents prepared. Detective Verrecchio confirmed that
the scenario was possible and gave the names of two (2)
individuals who were transported to the Homicide Unit for
questioning, but did not yield any documentation other than the
Transportation 48 as they could not provide factual information
pertinent to the case. Counsel inquired further about one (1) of
the individuals, Gabrielle Wiggins (“Wiggins”), and Detective
Verrecchio confirmed that he had a file for Wiggins marked
“cleared by investigation” which he provided to the
Commonwealth when Appellant was arrested. Counsel did not
have a copy of this information. Counsel later determined
through a conversation with Detective Verrecchio that Wiggins
indicated that he was not present at the time of the incident, and
had no information about the incident. Appellant maintained that
he did not shoot Berry throughout trial.
Trial Court Opinion, 2/29/16, at 3-5. The trial court set forth the procedural
history of this matter as follows:
On April 17, 2015, [Appellant] was found guilty, by a jury
sitting before this Court, of one (1) count of First Degree Murder,
a felony of the first degree; one (1) count of Conspiracy to
-3-
J-S04009-17
Commit Murder, a felony of the first degree; one (1) count of
violation of the Uniform Firearms Act (VUFA) § 6108, a felony of
the third degree; and one (1) count of Possession of an
Instrument of Crime, a misdemeanor of the first degree.
On that same day, the Appellant was sentenced to
mandatory life in prison without parole on the First Degree
Murder and no further penalty was imposed on the remaining
charges. Post sentence motions were filed on April 26, [20]15,
and subsequently denied by operation of law on August 27,
2015.
A timely Notice of Appeal was filed on September 28,
2015. When the notes of testimony became available, on
October 7, 2015 this Court ordered the Appellant, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), to file a
concise, self-contained and intelligible statement of errors
complained of on appeal. A 1925(b) statement of errors
complained of on appeal was received from counsel on October
22, 2015. …
Trial Court Opinion, 2/29/16, at 1-2 (footnotes omitted).
In his appellate brief, Appellant presents six issues for this Court’s
consideration:
A. Was not the Evidence was [sic] Insufficient to Establish
Appellant’s Guilt as a Matter of law to the charge of First Degree
Murder, as the evidence failed to establish the requisite level of
malice to sustain such a conviction to First Degree Murder.
B. Was not The Verdict of Guilty to First Degree Murder was [sic]
against the great weight of the evidence since the evidence
failed to demonstrate the level of malice necessary to sustain a
conviction for First Degree Murder.
C. Was not the Evidence was [sic] insufficient to Establish
Appellant’s guilt as a Matter of law to the charge of First Degree
Murder, where the evidence demonstrated the presence of a
conflict respecting the identity of the actual person who shot and
killed the decedent.
-4-
J-S04009-17
D. Was not the Verdict of Guilty to First Degree Murder was [sic]
against the great weight of the evidence since the evidence
presented demonstrated a conflict as to the identity of the
person who actually shot and killed the decedent.
E. Did the Trial Court erred [sic] as a Matter of Law in refusing to
give an instruction of Self-Defense to the jury, where the
evidence adduced by the Commonwealth demonstrated that self-
defense was plausible.
F. Did not the Trial Court erred [sic] as a Matter of Law in
denying Appellant’s objections to the Prosecutor’s challenges to
all black males and five black females from the pool of
prospective jurors, particularly since the Prosecutor failed to
demonstrate a [sic] legitimate non-raced based reasons for
excluding these prospective jurors and violated the spirit of the
Voir Dire process in declaring his stated reason for the
challenges were related strictly to the Commonwealth’s trial
strategy .
Appellants’ Brief at 6.2
We have reviewed the briefs of the parties, the relevant law, the
certified record before us, and the thorough opinion of the trial court dated
February 29, 2016. After review, we discern no merit to the issues Appellant
raises on appeal. It is our conclusion that the trial court correctly stated the
____________________________________________
2
While Appellant separated his claims of error into six issues in his brief, in
his Pa.R.A.P. 1925(b) statement, Appellant combined multiple issues into a
single claim of error. Appellant’s Pa.R.A.P. 1925(b) Statement of Errors
Complained of on Appeal, 10/22/15, at ¶7. The trial court opted not to find
waiver and instead endeavored to distill Appellant’s single, all-
encompassing, claim of error into discrete arguments. Trial Court Opinion,
2/29/16, at 5. However, the trial court opted to address Appellant’s briefed
issues A-D as one claim. Id. at 9-14.
-5-
J-S04009-17
applicable standards of review, thoroughly addressed the issues presented,
and aptly disposed of Appellant’s claims of error.3
Accordingly, we affirm the judgment of sentence based on the trial
court’s opinion, and we adopt its analysis and reasoning as our own. 4 The
parties are directed to attach a copy of the trial court’s February 29, 2016
opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2017
____________________________________________
3
We note that the second issue the trial court addressed (Trial Court
Opinion, 2/29/16, at 7-8), which concerned confronting witnesses, was
abandoned by Appellant on appeal.
4
We add only that “[s]pecific intent and malice may be established through
circumstantial evidence, such as the use of a deadly weapon on a vital part
of the victim’s body.” Commonwealth v. Arrington, 86 A.3d 831, 840
(Pa. 2014) (emphasis added). As noted by the trial court, Appellant fired
multiple bullets at Berry, and one bullet entered Berry’s chest penetrating
the heart and the right lung. Trial Court Opinion, 2/29/16, at 4.
-6-
Circulated 01/18/2017 03:15 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF CP..:Sl-CR-0012380-2013 CP-51-CR-0012380-2013 Comm. v. Rogers, Kareem
PENNSYLVANIA
FILED
Opinion
v.
KAREEM ROGERS,
FEB i ~ 2016
Criminal A~peals Unit ·
I
II I 7412900151
1111111111111111
APPELLANT f'~wst Judicia1 District of m1PERIOR CT: 313 9 EDA 2015
OPINION
RANSOM,J. February 29, 2016
On April 1 7, 2015, the Appellant, Kareem Rogers, also known as "Realistic" or "Chester" was
found guilty, by a jury sitting before this Court, of one (1) count of First Degree Murder', a felony of
the first degree; one (1) count of Conspiracy to Commit Murder', a felony of the first degree; one (1)
count of violation of the Uniform Firearms Act (VUF A) § 61083, a felony of the third degree; and one
(1) count of Possession of an Instrument of Crime", a misdemeanor of the first degree.
On that same day, the Appellant was sentenced to mandatory life in prison without parole on
the First Degree Murder and no further penalty was imposed on the remaining charges. Post sentence
motions were filed on April 26, 15, and subsequently denied by operation oflaw5 on August 27, 2015.
A timely Notice of Appeal was filed on September 28, 2015. When the notes of testimony
became available, on October 7, 2015 this Court ordered the Appellant, pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b ), to file a concise, self-contained and intelligible statement of errors .
1 18 Pa.C.S. § 2502(c).
2 18 Pa.C.S. § 903(2).
3 18 Pa.C.S. § 6108.
4
18 Pa.C.S. § 907.
5 Pa. R.Crim. P. Rule 720.
1
complained of on appeal. A l 925(b) statement of errors complained of on appeal was received from
counsel on October 22, 2015. In his 1925(b) statement, Appellant raises the following issue, copied
verbatim:
(1) This Court erred as a matter of law in denying appellant's challenge to the commonwealth in
exercising peremptory strikes on Eight (8) African American Jurors for reasons that were not
sufficiently race neutral and this court's finding in favor of the commonwealth and against
Appellant;
This Court violated Appellant's right under the 6th amendment to confront a potential witness
against him at trial, where this court failed to order the Commonwealth and/or its agents to
turn over all information relevant to a witness interviewed by the police but no statement had
been taken, nor was provided to the defense involving this witness;
This Court erred refusing to and overruling Appellant's request for ajury instruction on self-
defense, even though the evidence adduced by the Commonwealth tended to that show self-
defense as plausible on the part of the Appellant or the unnamed person who the
Commonwealth's own witnesses alleged were present with defendant on the day of the
shooting;
This Court erred in allowing operation of law to deny Appellant's Motion for Post Verdict
Relief where the evidence was insufficient to establish the requisite malice necessary to sustain
a conviction for l " Degree Homicide and a verdict of guilty on l " Degree Homicide was
against the great weight of the evidence.
This court erred in allowing by operation of law to deny Appellant's Motion for Post Verdict
Relief, where the evidence was insufficient to establish Appellant's identity as the actual
shooter
2
FACTS
Around 1 :30 P.M. on March 26, 2013, Stacey Berry ("Berry") also known as "Trapp" was shot
and killed by Appellant following an argument on West Duncannon Street in the City and County of
Philadelphia. Berry sold marijuana in the area, and Appellant's sale of drugs in the same area had
caused ongoing tension in the two (2) months preceding the incident. Kaeri Alvarez ("Alvarez")was
eating lunch on Syndenham Avenue facing West Duncannon Street when he saw Berry, who was
unfamiliar to him, on the comer with a group. Appellant and Eric Fuller ("Fuller") also known as
"Geezer" who were also unfamiliar to Alvarez walked up the 5100 block of Syndenham A venue
toward Berry and an argument ensued. During the argument, Berry took off his jacket and it dropped
to the ground. Berry and Appellant parted ways, and approximately five to ten (5-10) minutes later
Berry returned to retrieve his jacket. Paul Lee ("Lee"), Berry's childhood friend, saw Appellant walk
towards Berry with a gun in his hand. Appellant was accompanied by Fuller. Both Appellant and
Fuller were known to Lee. Lee heard someone yell, "There he go, right there, Trapp" and saw
Appellant open fire on Berry. Berry tried to run away while Appellant was shooting at him, but was
struck by a bullet and eventually collapsed in the middle of West Duncannon Street. Alvarez called
the police as he went to the spot where Berry fell. Alvarez was unable to make an identification of the
shooter, however was able to identify Berry from a photo shown to him by police.
Akinlaibi Frazier ("Frazier") also known as "Akee" saw Appellant walking away after Berry
was shot. Keith Pryer ("Pryer") who lived on northeast comer of 16th and Duncannon Streets, was on
his lunch break when he saw Berry arguing with Appellant. Soon after Pryer returned to his task, he
was notified that Berry had been shot and drove to Berry's location. Pryer attempted to move Berry
3
and take him to a hospital, however officers that arrived on the scene instructed Pryer not to touch
Berry. A medic unit transported Berry to Albert Einstein Medical Center.
Assistant Medical Examiner Dr. Albert Chu reviewed the autopsy of Berry which was
performed by Dr. Marlon Osborne. The cause of death was determined to be one (1) penetrating
gunshot wound to the chest. The bullet entered the central chest whereupon it entered the heart and the
right lung. The manner of death was found to be homicide. Bullet holes were found in a window and
wall of Pryer's home and a bullet was recovered from that same location. A bullet was also recovered
from a car that was parked on the 1500 block of West Duncannon Street at the time of the shooting.
Based on the path of the bullet, it appeared that the bullet was fired from direction of Syndenham
Avenue. Ballistics analysis determined that the bullets recovered from the house, car, and from the
body of Berry were all fired from the same gun. The Appellant did not have a valid license to carry a
firearm.
After the shooting, Appellant went to the home of Kareem Williams ("Williams"). In a
statement to police, Williams recounted that Appellant was rolling around on the floor and was acting
nervous. Appellant said, "You gotta get me out of here. You gotta get to my peep's house" and
eventually left the house through Williams' back door. On May 13, 2013, Fuller made a statement to
Detective John Verrecchia ("Detective Verrecchia"), the assigned detective on the case, wherein
Fuller said that Appellant shot first with a revolver, and Berry had a gun and shot back.
At trial, counsel posed a series of questions to Detective Verrecchia on cross-examination
concerning documentation practices of the Philadelphia Police Department. Counsel asked if there
would ever be an instance where a Transport to Homicide form (a 75-48 or a "Transportation 48")
would be filed but no other documents prepared. Detective Verrecchia confirmed that the scenario
was possible and gave the names of two (2) individuals who were transported to the Homicide Unit
4
for questioning, but did not yield any documentation other than the Transportation 48 as they could
not provide factual information pertinent to the case. Counsel inquired further about one (1) of the
individuals, Gabrielle Wiggins ("Wiggins"), and Detective Verrecchio confirmed that he had a file for
Wiggins marked "cleared by investigation" which he provided to the Commonwealth when Appellant
was arrested. Counsel did not have a copy of this information. Counsel later determined through a
conversation with Detective Verrecchio that Wiggins indicated that he was not present at the time of
the incident, and had no information about the incident. Appellant maintained that he did not shoot
Berry throughout trial.
LEGAL DISCUSSION
The Appellant raises one (1 ), five-pronged (5) issue on appeal. As an initial matter, this Court
notes that the issue is not concise, however the prongs are identifiable enough to be severed and
addressed individually. The first issue Appellant raises is:
This Court erred as a matter of law in denying appellant's challenge to the commonwealth in
exercising peremptory strikes on Eight (8) African American Jurors for reasons that were not
sufficiently race neutral and this court's finding in favor of the commonwealth and against
Appellant;
The Equal Protection Clause prohibits a prosecutor from using the State's peremptory
challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of
their race. Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 1365, 113 L. Ed. 2d 411 (1991) See, e.g.,
Batson v. Kentucky, 476 U.S. 79, 93, 106 S. Ct. 1712, 1721, 90 L. Ed. 2d 69 (1986); Holland v.
Illinois, 493 U.S. 474, 479, 110 S.Ct. 803, 806-807, 107 L.Ed.2d 905. The burden is on the defendant
who alleges discriminatory selection of the venire "to prove the existence of purposeful
discrimination" which may be demonstrated by reference to the totality of relevant circumstances.
5
Batson, supra citing Whitus v. Georgia, 385 U.S., at 550, 87 S.Ct., at 646-47. To show a Batson
violation, an Appellant must demonstrate his particular factual situation satisfies the test laid out by
the United States Supreme Court's opinion in that case:
First, the defendant must make a prima facie showing that the prosecutor has exercised
peremptory challenges on the basis of race. Second, if the requisite showing has been made,
the burden shifts to the prosecutor to articulate a race-neutral explanation for his
peremptory challenges. Finally, the trial court must determine whether the defendant has
carried his burden of proving purposeful discrimination.
Commonwealth v. Simpson, 620 Pa. 60, 74-75, 66 A.3d 253, 261 (2013) citing Batson, supra. A
"pattern" of strikes against jurors of a specific race included in the particular venire might give rise to
an inference of discrimination. Batson, supra. The government's race-neutral explanation "need not
rise to the level justifying exercise of a challenge for cause," but it must provide legitimate reasons
that are "clear and reasonably specific" and "related to the particular case to be tried." Batson, 476
U.S. at 97-98 & n. 20, 106 S.Ct. 1712, 90 L.Ed.2d 69 (internal quotations omitted).
Appellant6 asserts the Commonwealth violated his rights under Batson by utilizing its
peremptory challenges in a manner which discriminated against eight (8) African-Americans,
however this claim lacks merit as the Appellant could not meet his burden to establish actual,
purposeful discrimination.7 Appellant raised two (2) Batson challenges, one (1) of which was denied
and the other granted. (N.T. 4/7/15 at 129-149, 179-184). The first challenge, which was denied,
involved Juror 41, an African-American female. Id. at 139. Up to that point in selection, three (3)
black females had been struck as well as one (1) black male, and three (3) African-Americans were
selected for the jury panel. Id. at 149. Counsel alleged that the Commonwealth exercised a preemptory
6 Appellant is an African-American male.
7
The Appellant waived the presence of the Trial Judge during jury selection as a previous trial was ongoing, and Court
Administration directed the voire dire process. When each Batson challenge was made, the Trial Judge returned to hear the
arguments of counsel and make a ruling.
6
strike against Juror 41 in accordance with a pattern of discrimination against black women, though
counsel declined to take issue with any of the three (3) prior strikes against black women as they were
made. Id. at 41, 92, 109. During voire dire, Juror 41 stated that "people do dumb things" on both sides
of the justice system. Id. at 125. When questioned about this statement, Juror 41 relayed that she had
an uncle who was convicted of robbing a bank, and she said she understood his circumstances. Id. at
13 2-13 3. Juror 41 had not indicated that she knew someone charged with a crime on her
questionnaire. Id. The prosecutor for the Commonwealth explained that there would be testimonial
evidence that Berry fired at the Appellant. Id. at 141. The prosecutor for the Commonwealth believed
Juror 41 's responses showed that she may be more judgmental of the victim who may have had a gun,
and therefore more lenient on the Appellant than another juror. Id. at 128 et seq. Although the
Commonwealth used preemptory challenges to strike three (3) black women prior to Juror 41, this fact
alone did not give rise to the inference discrimination. Under such circumstances, where Juror 41 's
statements exposed a basis for the Commonwealth to want to remove her from the pool with a
peremptory challenge, Appellant could not show actual, purposeful discrimination on the part of the
Commonwealth. No relief is due.
The second claim Appellant raises is:
This Court violated Appellant's right under the 6th amendment to confront a potential witness
against him at trial, where this court failed to order the Commonwealth and/or its agents to turn
over all information relevant to a witness interviewed by the police but no statement had been
taken, nor was provided to the defense involving this witness;
The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions,
the accused shall enjoy the right ... to be confronted with the witnesses against him." See U.S. Const.
amend. VI; Commonwealth v. Overby, 570 Pa. 328, 337, 809 A.2d 295, 300 (2002). See generally
7
Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965) (applying the
Confrontation Clause to the States through the Fourteenth Amendment).
"The text of the Confrontation Clause reflects this focus [ on testimonial hearsay]. It applies
to 'witnesses' against the accused-in other words, those who 'bear testimony.' 1 N.
Webster, An American Dictionary of the English Language (1828). 'Testimony,' in turn,
is typically 'a solemn declaration or affirmation made for the purpose of establishing or
proving some fact.' Ibid. An accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a casual remark to an acquaintance
does not."
Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177 (2004).
This claim lacks merit, as Appellant's right under the Sixth Amendment was not infringed
upon where the individual in question was not in fact a witness. The prosecution is not required to
disclose to the defense "every fruitless lead followed by investigators of a crime." Commonwealth v.
Lambert, 584 Pa. 461, 884 A.2d 848 (2005) at 475, (citing Commonwealth v. Crews, 536 Pa. 508, 640
A.2d 395, 406 (1994)). In the instant case, Gabrielle Wiggins who is the person listed on the disputed
75-48, made no solemn declaration for the purpose of establishing some fact, and therefore bore no
testimony for or against Appellant. (N.T. 4/14/15 at 149-152; 4/15/15 at 43-44). Detective Verrecchia
stated that no documentation other than the Transportation 48 was created by Philadelphia Police
based on Wiggins' indication that he was not present at the time of the shooting and had no
information regarding same. (N.T. 4/15/15 at 43-44). Wiggins was cleared by investigation. (N.T.
4/14/15 at 149-152). Additionally, Wiggins was known to Appellant as someone who lived in the ·
neighborhood, and Appellant could have independently interviewed him to determine if he had any
information favorable to Appellant. (N.T. 4/15/15 at 43-44). The absence of any testimony by
Wiggins coupled with Appellant's prior knowledge of Wiggins, prevented an infringement of
Appellant's Sixth Amendment rights.
The third claim Appellant raises is:
8
This Court erred refusing to and overruling Appellant's request for a jury instruction on self-
def ense, even though the evidence adduced by the Commonwealth tended to that show self-
defense as plausible on the part of the Appellant or the unnamed person who the
Commonwealth's own witnesses alleged were present with defendant on the day of the shooting;
A defendant in a first-degree murder trial arising from a shooting incident is not entitled to a
charge on self-defense wh~re he denied having done the shootings at all. Commonwealth v. Gay, 489
Pa. 17, 21-22, 413 A.2d 675, 677 (1980), (citing Commonwealth v. Young, 460 Pa. 598, 334 A.2d
252 (1975)).
At no point during trial did the Appellant take the position that he shot Berry, thus no self-
defense instruction was warranted.
Appellant's fourth and fifth issues challenge the sufficiency of the evidence and will be
addressed simultaneously. The fourth and fifth issues Appellant raises are:
This Court erred in allowing operation of law to deny Appellant's Motion for Post Verdict
Relief where the evidence was insufficient to establish the requisite malice necessary to sustain a
conviction for 1st Degree Homicide and a verdict of guilty on 1st degree Homicide was against
the great weight of the evidence.
This court erred in allowing by operation of law to deny Appellant's Motion for Post Verdict
Relief, where the evidence was insufficient to establish Appellant's identity as the actual shooter
The standard of review for a sufficiency of evidence claim is "whether the evidence admitted
at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses beyond a
reasonable doubt." Commonwealth v. Miller, 541 Pa. 531, 540, 664 A.2d 1310, 1314 (1995) ( citing
Commonwealth v. Carpenter, 511 Pa. 429, 435, 515 A.2d 531, 533-534 (1986)). When reviewing
9
sufficiency of the evidence, an appellate court may not substitute its judgment for that of the fact-
finder; if the record contains support for the verdict, it may not be disturbed. See Commonwealth v.
Marks, 1997 Pa. Super. LEXIS 3857, 4, 704 A. 2d 1095, 1098 (1997). Whatmay appear unlikely to a
reviewing court cannot supplant what the fact finder has found. Commonwealth v. Jackson, 506 Pa.
469, 474, 485 A.2d 1102, 1104 (Pa. 1984).
A criminal homicide constitutes Murder of the first degree when it is committed by an
intentional killing. 8 An intentional killing is a killing by means of ... any kind of willful, deliberate
and premeditated killing.9 To prove a charge of First Degree Murder, the Commonwealth must
establish that Appellant had the specific intent to kill. In establishing the presence of a specific intent
to kill the Commonwealth is not required to depend upon proof by direct evidence but also may meet
its burden by circumstantial evidence alone. The specific intent to kill which is necessary to constitute
First Degree Murder, may be found from a defendant's words or conduct or from the attendant
circumstances together with all reasonable inferences therefrom. Commonwealth v. Tyrrell, 405 Pa.
210, 174 A.2d 852 (1961). Specific intent may be reasonably inferred from the use of a deadly
weapon on a vital part of the victim's body. Id. A "deadly weapon" is defined as any device which, in
the manner in which it is used, is likely to produce death or serious bodily injury.!" Thus, when
someone fires a handgun at another, it is assumed the intent was to inflict serious bodily injury or
death. Commonwealth v. Robinson, 817 A.2d 1153, 1160 (Pa. Super 2003).
Rule of Criminal Procedure 720 sets forth the procedure to be followed when a post-sentence
motion is filed and provides in relevant part:
8 18 Pa.C.S § 2502(a)
9 18 Pa.C.S § 2502(d)
to 18 Pa.C.S.A. § 2301
10
(2) Trial Court Action.
(a) Briefing Schedule. Within 10 days after a post-sentence motion is filed, if the judge
determines that briefs or memoranda oflaw are required for a resolution of the motion,
the judge shall schedule a date certain for the submission of briefs or memoranda of law
by the defendant and the Commonwealth.
(b) Hearing; Argument. The judge shall also determine whether a hearing or argument on
the motion is required, and if so, shall schedule a date or dates certain for one or both.
( c) Transcript. If the grounds asserted in the post-sentence motion do not require a
transcript, neither the briefs nor hearing nor argument on the post-sentence motion shall
be delayed for transcript preparation.
(3) Time Limits for Decision on Motion. The judge shall not vacate sentence pending
decision on the post-sentence motion, but shall decide the motion as provided in this
paragraph.
(a) Except as provided in paragraph (B)(3)(b), the judge shall decide the post-sentence
motion, including any supplemental motion, within 120 days of the filing of the motion.
If the judge fails to decide the motion within 120 days, or to grant an extension as
provided in paragraph (B)(3)(b), the motion shall be deemed denied by operation of law.
Pa. R. Crim. P. 720(B)(2)(a)-(b).
Appellant's timely post-sentence motions did not merit the submission of briefs, memoranda
of law, or a hearing, and were properly denied by operation of law upon the expiration of 120 days.
The evidence was sufficient to confirm that Appellant had the malice necessary to sustain a conviction
for First Degree Murder, his identity as the shooter was established, and the verdict of guilty was not
against the weight of the evidence. For these reasons as outlined below, this Court did not err in
allowing the Appellant's post-sentence motions to be denied by operation oflaw in accordance with
the procedures delineated in Pennsylvania Rule of Criminal Procedure 720.
In the instant case, the Commonwealth presented sufficient evidence to sustain a conviction on
First Degree Murder. The Commonwealth presented direct evidence through testimony of its
witnesses and forensic analysis which established the Appellant as the perpetrator of this crime. At
trial, two (2) eye-witnesses, Alvarez and Lee, saw the shooting. (N.T. 4/9/15 at 8-18, 39-41). Alvarez
saw Appellant and Fuller, who were unknown to him, walk up the 5100 block of Syndenham A venue
toward West Duncannon Street where they got into an argument with Berry. Id. at 38-41.
11
Approximately five to ten (5-10) minutes after Appellant and Berry parted ways, Alvarez saw
Appellant return, pull out a handgun and shoot at Berry multiple times as Berry tried to run away. Id.
Alvarez was unable to make an identification of the Appellant, however he was able to identify Berry
from a photo shown to him by police. Id. at 45-46.
Three (3) witnesses placed Appellant at the scene. Lee observed Appellant and Fuller walking
up Syndenham Avenue towards Berry. Id. at 15-18. Both Appellant and Fuller were known to Lee. Id.
at 9, 15. Appellant had a gun in his hand at the time lee saw him. Id. Lee then saw Appellant open fire
on Berry who was trying to run away and ultimately collapsed in the middle of West Duncannon
Street. Id. at 8, 13. Lee identified Appellant both in direct testimony and by photo. Id. at 8-9, 18.
Frazier saw Appellant walking away after Berry was shot in the chest. Id. at 125-127. Pryer saw
Appellant, who he later identified by photo, arguing with Berry directly before Berry died. Id. at 71-
73. Forensic analysis determined that the three (3) bullets recovered from the scene were all fired from
the same gun, and the bullets appeared to be fired from the direction of Syndenham A venue onto West
Duncannon Street. (N.T. 4/10/15 at 108-110, 162). Specific intent to kill can be reasonably inferred
from the actions taken by the Appellant in leaving the scene of the argument, returning with a gun,
shooting at Berry multiple times, and ultimately striking him in the chest. Indeed, the single bullet
wound was the cause of Berry's death. Id. at 11. When viewed in the light most favorable to the
Commonwealth, there was sufficient evidence to support Appellant's First Degree Murder conviction
beyond a reasonable doubt.
The Appellant next contends that the verdict was against the weight of the evidence. This
contention also lacks merit. The standard of appellate review for a claim that the verdict was against
the weight of the evidence is limited to a determination of whether the trial court abused its discretion
in denying the Appellant's post-verdict motion i.e. that the fact-finder's verdict "shocked the
12
·,
conscious." Commonwealth v. Lloyd, 2005 Pa. Super. 236, Pl2, 878 A.2d 867, 872 (2005). The
weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of
the evidence and to determine the credibility of the witnesses. Commonwealth v. Small, 559 Pa. 423,
435, 741 A.2d 666, 672 (Pa. 1999). A new trial should not be granted because of a mere conflict in
testimony or because the trial judge would have arrived at a different conclusion on the same facts.
Commonwealth v. Brown, 538 Pa. 410, 648 A2d. 1177, 1191 (Pa. 1994).
The verdict in the instant case does not shock the conscience. Testimony at trial established
that Appellant got into an argument with Berry and returned with a gun which he then used to shoot
and kill Berry. Williams testified that after the incident, Appellant was rolling around on the floor of
Williams' house acting nervous. (N.T. 4/9/15 at 211~212). Appellant was sweating profusely and
said, "You gotta get me out of here. You gotta get me to my peep's house". Id. At the close of trial,
the jury determined the credibility of the witnesses and found that Appellant acted with malice to
commit First Degree Murder.
CONCLUSION
For the reasons set forth above, the decision of this Court should be affirmed.
BY THE COURT:
~K_;;;_:>,,
I.....__
ansom, J.
13
Re: Commonwealth v. Kareem Rogers,
CP-51-CR-0012380-2013
3139 EDA 2015
TYPE:OPINION
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114:
Defendant: Kareem Rogers
pp 1020271
SCI Forest
P.O. Box 945
286 Woodland Drive
Marienville, PA 16239
Type of Service: ( ) Personal Service ( ) First Class Mail ( X) Other: Certified
Defense Attorney: Debra D. Rainey, Esquire
100 South Broad Street, Suite 610
Philadelphia, PA 19110
Type of Service: ( ) Personal Service ( X ) First Class Mail ( ) Other: _
District Attorney: Hugh J. Burns Jr., Esquire
Philadelphia District Attorney's Office
Widener Building - Three South Penn Square
Philadelphia, PA 19107
Type of Service: ( ) Personal Service ( X ) First Class Mail ( ) Other: ------
Date: · February 29, 2016
Tianna K. Kalogerakis, Esq.
Law Clerk to the Hon. Lillian H. Ransom