The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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
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*
Retired Senior Judge assigned to the Superior Court.
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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a Child.3 The third-degree murder charge was withdrawn prior to trial.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.
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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
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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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