Opinion
J-S04009-17 No. 3139 EDA 2015
02-03-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KAREEM ROGERS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Former Justice specially assigned to the Superior Court.
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" 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 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
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.Trial Court Opinion, 2/29/16, at 3-5. The trial court set forth the procedural history of this matter as follows:
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.
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
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.Trial Court Opinion, 2/29/16, at 1-2 (footnotes omitted).
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. ...
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.
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.
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.Appellants' Brief at 6.
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 .
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.
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 applicable standards of review, thoroughly addressed the issues presented, and aptly disposed of Appellant's claims of error.
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.
Accordingly, we affirm the judgment of sentence based on the trial court's opinion, and we adopt its analysis and reasoning as our own. 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.
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.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/3/2017
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