Opinion
J. S16036/16 No. 2586 EDA 2014
04-11-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WALEEM JENKINS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010227-2011 BEFORE: OTT, J., DUBOW, J., and JENKINS, J. MEMORANDUM BY DUBOW, J.:
Appellant, Waleem Jenkins, appeals from the November 12, 2013 Judgment of Sentence entered in the Philadelphia Court of Common Pleas. After careful review, we affirm on the basis of the trial court's Opinion, which found Appellant's claims were either waived or without merit.
The trial court's Rule 1925(a) Opinion includes a thorough and complete narrative of the facts and procedural history in this case. See Trial Court Opinion, filed 3/21/15, at 1-8. While we will not go into exhaustive detail here, some of the relevant facts are as follows.
A jury convicted Appellant of Possession with Intent to Deliver a Controlled Substance after officers of the Philadelphia Police Department's Narcotics Field Unit observed Appellant selling narcotics to a confidential informant ("CI") on two separate occasions, and found narcotics and other incriminating evidence on Appellant's person while searching him incident to arrest. Id. at 2-3.
At trial, the Commonwealth called three members of the Narcotics Field Unit as witnesses. The first was Officer Carlos Buitrago, who observed Appellant selling narcotics to the CI on both occasions. Id. at 2-4. Officer Buitrago testified that after the second narcotics sale, Officers Linwood Norman and Reginald Graham arrested Appellant, and Officer Graham searched Appellant's person. Id. at 4.
Officer Norman's involvement in the case was limited to this minor role assisting Officer Graham with Appellant's arrest. Officer Norman did not search Appellant, was not present for the first controlled buy, and did not testify at Appellant's trial.
The Commonwealth then called Officer Graham, who also personally observed both narcotics sales and confirmed he was the officer who arrested Appellant, searched Appellant, and recovered incriminating evidence including narcotics from Appellant's person. Id. at 4-5.
Finally, the Commonwealth called Sergeant Thomas Meehan, who supervised the investigation of Appellant, and provided the prerecorded buy money the CI used to purchase narcotics from Appellant. Id. at 5-6.
Appellant testified in his own defense at trial, denying his involvement in the sale of narcotics. Appellant testified that he worked for a cousin's moving company and that, on the date he was arrested, he was in the area visiting friends. Id. at 6-7. He denied that any of the evidence recovered from his person was his and suggested that it had been planted by one of the officers arresting him. Id.
After the jury's conviction, Judge Brinkley sentenced Appellant to three and one-half to seven years of state incarceration, to be followed by three years of probation.
At some point after Appellant's conviction and sentencing, the federal government indicted Officer Norman on corruption charges. Id. at 9. None of the allegations in Officer Norman's indictment, however, pertained to his involvement in Appellant's arrest. A federal jury later acquitted Officer Norman of all charges.
Appellant filed a post-sentence motion. After its denial, Appellant timely appealed.
On appeal, Appellant raises the following five issues:
a. Whether Appellant is entitled to a new trial based on after-discovered evidence?Appellant's Brief at 5 (capitalization removed).
b. Whether the prosecutor committed misconduct in his closing statement?
c. Whether the [trial court] erred in allowing the Commonwealth to use a letter of employment during cross-examination and in allowing the letter to be read to refresh the jury's memory during deliberations?
d. Whether the [trial court] erred in excluding evidence that police officers in a separate case involving Appellant had been indicted?
e. Whether the verdict was against the weight of the evidence?
The Honorable Genece E. Brinkley has authored a comprehensive, thorough, and well-reasoned Rule 1925(a) Opinion, citing to the record and relevant case law in addressing Appellant's claims on appeal. We affirm on the basis of that Opinion.
In his first issue, Appellant raises an after-discovered evidence claim based upon Officer Norman's indictment on corruption charges. To prevail on a motion for a new trial on the basis of after-discovered evidence, Appellant was required to produce admissible evidence, discovered after trial, that:
(1) could not have been obtained prior to the end of trial with the exercise of reasonable diligence; (2) is not merely corroborative or cumulative evidence; (3) is not merely impeachment evidence; and (4) is of such a nature that its use will likely result in a different verdict on retrial.Commonwealth v. Lyons , 79 A.3d 1053, 1068 (Pa. 2013) (citation omitted). As the reviewing court, "this Court affirms unless the determination constitutes abuse of discretion." Id.
Based on our review of the record, the arguments presented by Appellant, and the relevant case law and statutes, we agree with the trial court that Appellant's after-discovered evidence claim warrants no relief because of Officer Norman's de minimis involvement in the case against Appellant and because none of the other officers involved in the investigation into Appellant have been accused of wrongdoing.
Furthermore, as the trial court has thoroughly addressed the issue in its opinion, we adopt the trial court's discussion as dispositive of Appellant's claim. See Trial Court Opinion at 8-9. Accordingly, we grant no relief on this issue.
Appellant bases his second claim, one of prosecutorial misconduct, on the Commonwealth attorney's statements in closing arguments referring to himself as "a gladiator" and to the courtroom as "the coliseum." Appellant's Brief at 15-16.
The trial court found that Appellant waived this issue, and we find this position to be correct. See Commonwealth v. Cox , 983 A.2d 666, 685 (Pa. 2009). Appellant did not object to any of the allegedly improper statements at trial. N.T., 6/6/13, at 26-28. Furthermore, as the trial court has thoroughly addressed the issue in its opinion, we adopt the trial court's discussion as dispositive of Appellant's claim. See Trial Court Opinion at 10-12. Accordingly, we grant no relief on this issue.
Appellant's third and fourth issues both challenge the trial court's rulings on the admissibility of certain evidence introduced or excluded at trial. "Questions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court's rulings regarding the admissibility of evidence absent an abuse of that discretion." Commonwealth v. Russell , 938 A.2d 1082, 1091 (Pa. Super. 2007) (citation omitted). An abuse of discretion is more than a mere error of judgment; rather, an abuse of discretion will be found 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." Commonwealth v. Busanet , 817 A.2d 1060, 1076 (Pa. 2002) (citation and quotation omitted).
Appellant first argues that the trial court erred in permitting the Commonwealth to read a letter of employment to the jury during cross-examination and again during deliberations. The trial court found that Appellant waived his claim with respect to the use of the letter during cross examination, and we find this position to be correct. "To preserve a claim for review, the defendant must make a timely and specific objection to the introduction of the challenged evidence at trial." Commonwealth v. Gray , 867 A.2d 560, 574 (Pa. Super. 2005) (citation omitted). Appellant did not object to the reading of the letter and, thus, waived the issue. N.T., 6/5/13, at 175-79.
Likewise, we conclude Appellant's claim regarding the reading of the letter to the jury during deliberations has no merit, as reading the letter assisted the jury in determining credibility. Furthermore, as the trial court has thoroughly addressed both of Appellant's claims regarding the letter in its opinion, we adopt the trial court's discussion as dispositive of Appellant's claims regarding the letter. See Trial Court Opinion at 12-15.
Appellant's next evidentiary claim is that the trial court erred in excluding evidence that two police officers who had no involvement in the instant case, but who had previously arrested Appellant for a wholly unrelated matter, were indicted on allegations of planting drugs and robbing drug dealers. Once again, based on our review of the record, the arguments presented by Appellant, and the relevant case law and statutes, we conclude Appellant's claim has no merit. Furthermore, as the trial court has thoroughly addressed Appellant's claims regarding the letter in its Opinion, we adopt the trial court's discussion, which found the evidence was irrelevant, unfairly prejudicial, and likely to cause confusion. See id. at 15-16.
Finally, Appellant claims that the jury's guilty verdict in this case was against the weight of the evidence presented at trial. "A weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice." Lyons , supra at 1067 (citation omitted).
When this Court reviews a trial court's ruling on a weight of the evidence claim we do not "substitute [our] judgment for the finder of fact and consider the underlying question of whether the verdict is against the weight of the evidence, but, rather, [this Court] determines only whether the trial court abused its discretion in making its determination." Id.
Based on our review of the record, the arguments presented by Appellant, and the relevant case law and statutes, we conclude Appellant's weight of the evidence claim warrants no relief. Furthermore, as the trial court has thoroughly addressed the issue in its Opinion, we adopt the trial court's discussion as dispositive of Appellant's claim. See Trial Court Opinion at 17-18. Accordingly, no relief is due.
Therefore, after a careful review of the parties' arguments, and the record, we affirm on the basis of the trial court Opinion.
Judgment of Sentence affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/11/2016
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