Com. v. Bowen, H.

J-S09015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HALIM RAYSHAWN BOWEN

Appellant No. 678 MDA 2015

Appeal from the Judgment of Sentence December 10, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0000098-2014

BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED MARCH 29, 2016

Appellant, Halim Rayshawn Bowen, appeals from the judgment of

sentence entered after a jury convicted him of first-degree murder. Bowen

claims that the trial court erred in admitting hearsay testimony and that the

evidence at trial was not sufficient to support a finding that he had a specific

intent to kill. After careful review, we affirm.

A jury convicted Bowen of intentionally killing Jaime Sanabria by

gunshot to the back during an altercation at a bar. In his first argument on

appeal, Bowen challenges the sufficiency of the evidence supporting the

verdict. Bowen concedes that the evidence was sufficient to support a

finding that he unlawfully killed Sanabria, but claims that it was insufficient

to support a finding that he had the specific intent to kill Sanabria. See

Appellant’s Brief, at 9.

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In reviewing a challenge to the sufficiency of the evidence, “[w]e must

determine whether the evidence admitted at trial, and all reasonable

inferences derived therefrom, when viewed in the light most favorable to the

Commonwealth as verdict winner, support all of the elements of the offense

beyond a reasonable doubt.” Commonwealth v. Cooper, 941 A.2d 655,

662 (Pa. 2007) (citation omitted).

Our scope of review is plenary. See Commonwealth v. Weston, 749

A.2d 458, 460 n.8 (Pa. 2000). We may not weigh the evidence and

substitute our judgment for the fact-finder’s, as the fact-finder solely

determines the credibility of witnesses and is free to believe all, part or none

of the evidence submitted. See Cooper, 941 A.2d at 662. “This standard is

equally applicable to cases where the evidence is circumstantial rather than

direct so long as the combination of the evidence links the accused to the

crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 636

A.2d 1173, 1176 (Pa. Super. 1994) (citation omitted).

First-degree murder requires a finding of a specific intent to kill. See

Commonwealth v. Smith, 861 A.2d 892, 895 (Pa. 2004). “[T]he law

permits the fact finder to infer that one intends the natural and probable

consequences of his acts[.]” Commonwealth v. Jackson, 955 A.2d 441,

444 (Pa. Super. 2008) (citation omitted). Thus, “[s]pecific intent to kill can

be proven where the defendant knowingly applies deadly force to the person

of another.” Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa. Super.

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2013) (citation omitted). More particularly, specific intent to kill “may be

established through circumstantial evidence such as the use of a deadly

weapon on a vital part of the victim’s body.” Id. (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)

(citations omitted).

Bowen argues that the back is not a vital organ, and that there is no

independent evidence of motive or intent.1 However, the Commonwealth

presented the testimony of Barbara Bollinger, M.D., a certified forensic

pathologist. Dr. Bollinger testified that Sanabria suffered

a perforating gunshot wound to his chest. A perforating gunshot

wound is a gunshot wound that is through and through, so

there’s an entrance site and also an exit site. No bullet was

recovered from his body.

…

Again, here is the entrance wound. It was more in the middle of

the back just to the right of the midline and below the right –

below the right shoulder blade. Then the bullet traversed

through the chest and exited under the … left underarm area.

…

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1

Bowen’s argument notes a lack of identification evidence in several

instances, but he never explicitly argues that the evidence was insufficient to

establish that he was the shooter.

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Well, there are vital organs in the chest, the heart, many blood

vessels both coming from the heart and also running between

each rib, and then there are also the lungs.

In this particular case, the bullet went through both lobes of the

left lung and some major blood vessels supplying that lung and

also some smaller blood vessels that course in conjunction with

the ribs. So this particular gunshot wound caused massive

bleeding in the left chest cavity of Mr. Sanabria.

N.T., Trial, 12/8-10/14, at 142-144. Dr. Bollinger also testified to the

existence of gunpowder residue around the entrance wound. See id., at

146-147. She opined that the presence of gunpowder residue “implies that

the wound is a close or contact range gunshot wound.” Id., at 147.

This evidence was sufficient to establish that Bowen shot Sanabria in a

vital organ, and thus is sufficient to support a finding of specific intent to kill.

We therefore conclude that Bowen’s first argument on appeal merits no

relief.

In his second issue on appeal, Bowen argues that the trial court erred

in admitting a tape-recorded conversation between a fellow prisoner, Alonzo

Jenkins, and Bowen’s girlfriend. While Bowen was in York County Prison

awaiting trial in this matter, a corrections officer overheard Bowen and

Jenkins discussing the shorts Bowen was seen wearing at the bar on the

night of the murder. The officer heard Jenkins say, “I’ll make a call.”

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That night, Jenkins called Bowen’s girlfriend and had the following

conversation.2

Jenkins: Hello

Female: Hello. Hey –

Jenkins: What’s up? He wanted me to tell you – well, he

wanted me to ask you did you call his lawyer today.

Female: I called him on my lunch break, but he was out at

court. So I left him a message, but he didn’t call me back.

Jenkins: All right. And he said he wants you to – I guess you

know which shorts he is talking about?

Female: Shorts?

Jenkins: Yeah, like a pair of shorts that he got that is his. I

think might got like flowers on them or something.

Female: Uh-huh.

Jenkins: He wants you to get rid of them.

Female: I don’t – I don’t have them no more.

Jenkins: All right. So you want me to tell him that you already

got rid of them?

Female: Yeah, I don’t have that no more.

Jenkins: All right. I will tell him you got rid of them.

Trial Court Opinion, 3/17/15, at 4.

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2

There is no transcription of the phone call in the certified record, but

Bowen stipulates in his brief that the trial court’s transcription in its opinion

is accurate. See Appellant’s Brief, at 14, n.4. Furthermore, it is Jenkins who

identifies the female on the call as his girlfriend. See id.

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At trial, the Commonwealth presented the testimony of the corrections

officer regarding the conversation between Bowen and Jenkins. After the

officer testified, the Commonwealth requested to play the tape of the phone

conversation between Jenkins and Bowen’s girlfriend. When Bowen objected

on hearsay grounds, the Commonwealth argued that the conversation fell

into a hearsay objection since Jenkins was acting as Bowen’s agent. The trial

court ruled that the recording did not constitute hearsay, and allowed the

Commonwealth to play it for the jury.

We note that the “[a]dmission of evidence is within the sound

discretion of the trial court and will be reversed only upon a showing that the

trial court clearly abused its discretion.” Commonwealth v. Tyson, 119

A.3d 353, 357 (Pa. Super. 2015) (citation omitted). “An abuse of discretion

is not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown

by the evidence of record.” Commonwealth v. Ali, 112 A.3d 1210, 1217

(Pa. Super. 2015) (citation omitted), appeal granted in part by, 127 A.3d

1286 (Pa. 2015). Furthermore,

we note that to be considered relevant, evidence must have

some tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence. Evidence

that is relevant may nevertheless be inadmissible if it violates a

rule of competency, such as the hearsay rule. Hearsay is an out-

of-court statement offered to prove the truth of the matter

asserted by the declarant. When an extrajudicial statement is

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offered for a purpose other than proving the truth of its

contents, it is not hearsay and is not excludable under the

hearsay rule. Hence, a statement offered as evidence of motive

and not for its truth, is always relevant and admissible.

Commonwealth v. King, 959 A.2d 405, 412 (Pa. Super. 2008) (citations

and internal quotation marks omitted).

We agree with Bowen that the recorded conversation is, at face value,

a hearsay statement. The only possible relevance the conversation could

have to the matters in issue at trial was if the jury believed Jenkins’s

statement that Bowen had told him to tell his girlfriend to dispose of the

shorts. Under these circumstances, the jury could infer that Bowen was

conscious of his own guilt. If the jury did not believe Jenkins’s assertion that

Bowen had told him to tell his girlfriend to dispose of the shorts, the

recorded conversation has no relevance to the trial. The conversation

therefore constitutes an out-of-court statement offered to prove the truth of

the matter asserted by Jenkins, and is a hearsay statement under the Rules

of Evidence.

However, we agree with the Commonwealth’s argument at trial3 that

this statement qualifies as an exception to the rule against hearsay. Rule

803(25) provides that hearsay statements by party-opponents are

admissible. See Pa.R.E. 803(25). Specifically, Rule 803(25) provides that

hearsay statements made by “a person authorized by the party to make a

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3

Curiously, the Commonwealth abandoned this argument on appeal.

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statement concerning the subject” are admissible as statements by party-

opponents. See Pa.R.E. 803(25)(C). The Commonwealth presented evidence

that Bowen had authorized Jenkins to speak on his behalf to his girlfriend.

Thus, the recording fell under the party-opponent exception. We therefore

conclude that the trial court properly admitted the recording, even though

we disagree with its rationale. See The Brickman Group, Ltd. v. CGU

Insurance Company, Inc., 865 A.2d 918, 928 (Pa. Super. 2004) (“We are

not bound by the trial court’s rationale, and may affirm on any basis.”).

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2016

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