Com. v. Yates, M.

J-S20038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF

PENNSYLVANIA : PENNSYLVANIA

:

:

v. :

:

:

MONROE YATES :

: No. 2936 EDA 2015

Appellant

Appeal from the Judgment of Sentence July 22, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014350-2013

BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED OCTOBER 06, 2017

Monroe Yates appeals from the judgment of sentence imposed on July

22, 2015, in the Court of Common Pleas of Philadelphia County following his

conviction by jury on charges of attempted murder, conspiracy to commit

murder, and various weapons offenses.1 He received an aggregate sentence

20 to 40 years’ incarceration. In this timely appeal, Yates claims the evidence

was insufficient to support the verdict, the verdict was against the weight of

the evidence, the trial court erroneously charged the jury regarding

identification, and the trial court erroneously announced a stipulation to the

jury. After a thorough review of the submissions by the parties, relevant law,

and the certified record, we affirm.

____________________________________________

1 18 Pa.C.S. §§ 901(a), 1102(c), 6106(a)(1) and 6108.

J-S20038-17

We adopt the factual summary of this matter from the trial court

opinion:

On June 17, 2013, around nine o’clock in the evening,

Lakeisha Jessie was with her sons Sahih Johnson and Jahih Yates

in North Philadelphia. Sahih asked his mother if he could spend

the night at a friend’s house. When Lakeisha said no, Sahih called

her a “bitch.” After this disagreement, Lakeisha’s nephew Robert

Jackson walked by, and Lakeisha asked him to “beat up” Sahih for

disrespecting her. Robert continued the physical confrontation

with Sahih until Lakeisha told him to stop.

Later that evening, Robert and Sahih encountered one

another and began fighting again. Lakeisha then noticed that her

son Jahih’s father, [Monroe Yates (hereinafter, Yates)], was

arguing with Robert as well. At this time Lakeisha called Robert’s

mother, her sister Kimberly Jessie, to pick up her son. When

Lakeisha told [Yates] to leave Robert alone, he walked away

towards Franklin Street.

Kimberly Jessie was with friends nearby on 10th Street when

Lakeisha called her. As she walked down 9th Street near Pike

Street to find her son Robert, Kimberly passed [Yates] and

[Biggs.2] She stopped to speak to [Yates] about the incident.

While they were speaking, Kimberly’s sons Robert, Raheim and

Tyreek approached them. Raheim said, “Nobody is going to do

anything. Nobody is going to touch my family.” This made [Yates]

and [Biggs] angry, and Kimberly walked them across the street.

[Yates] and [Biggs] left together in a white vehicle.

At approximately 10:30 that evening, Officers Dayton

Bennett and Joseph Marion responded to a report of shots fired in

the area of 9th and Pike Streets. The initial call reported five or

six shots fired. Upon arrival, the officers found a group of around

20 people gathered in the area. They also saw Kimberly Jessie

lying on the curb between Percy and Delhi Streets. She had been

shot and was in distress, screaming “They tried to shoot my son.

They tried to shoot my son. The mother f-ers tried to shoot my

son.” Kimberly testified that she was shot in the right thigh, and

____________________________________________

2Mark Biggs, a/k/a Saladine Sweets, was Yates’s co-defendant. His appeal

was listed consecutively with this appeal.

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that the bullet entered from the back and exited the front of her

leg.

Lakeisha Jessie was also at the scene and spoke to Officer

Marion when he arrived. Lakeisha identified [Yates] and [Biggs]

as the shooters to Officer Marion at this time. Once Kimberly was

transported to the hospital, Lakeisha was brought to East

Detective’s Division to make an official statement. Detectives

Kahlan and Daley interviewed Lakeisha at about 11:35 PM. At this

time, Lakeisha again identified [Yates] and [Biggs] as the

individuals who had shot at her nephew, Raheim Jackson, and his

mother Kimberly. She stated that she saw both men holding black

handguns.

After being treated for her injuries, Kimberly Jessie was also

interviewed by Detectives Kahlan and Daley that night. Detective

Daley described her as “hysterical. She was in a lot of pain. She

was upset, angry, a lot of emotions.” Kimberly had brought the

jeans she had been wearing to the detectives, who placed them

on a property receipt. During this interview, Kimberly also

identified [Yates] and [Biggs] as the shooters, and circled both of

their pictures. She told detectives that she saw each man holding

a handgun, one black and one silver. Although the interview was

cut short due to the pain Kimberly was in, she was able to review

and sign her statement that evening.

Detectives Ellis and McCullough processed the scene of the

shooting to search for evidence. After an initial search of the area

did not yield any results, they went to Temple University Hospital

to speak to Kimberly Jessie, who was still being treated at that

time. They learned that she had been shot closer to 9 th Street,

and returned to the scene to refocus their search. They

discovered two fired cartridge casings east of 9 Street, in an area

th

that had not been previously secured as part of the crime scene.

The first casing was found under a Chevrolet Impala parked at the

southeast corner of 9th and Pike Streets. The second casing was

recovered from under a Toyota Corolla in the same area. The

Toyota Corolla appeared to have a bullet hole in the hood. Both

fired cartridge casings were of the same make and model.

Firearms examiner Letitia Cannon examined the fired cartridge

casings and concluded that they had been fired from the same

firearm.

Another bullet went into the home of Della Jamison at 3900

North Delhi Street, at the corner of Pike Street. Ms. Jamison

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testified that she had heard what sounded like gunshots that

evening, and thought something may have hit her house. Upon

going upstairs later that night, she found damage to a hat and

perfume bottle. Officer Malcolm Scott investigated Ms. Jamison’s

house the next day when she reported the damage. In his report,

Officer Scott noted that a “possible bullet went through the front

bedroom wall, traveled through the middle bedroom, and is

lodged in the bedroom wall.”

On August 10, 2013, Sergeant Wali Shabazz was making an

unrelated car stop at 10th and Butler Streets in the same

neighborhood as the shooting and was approached by Kimberly

Jessie. After finishing the car stop, Sergeant Shabazz walked over

to Kimberly to speak with her. She told him that he should “be

looking for the people that shot me,” and that she was “scared for

myself and my kids.” Sergeant Shabazz asked her for the names

of the men who shot her, and she responded with [Yates’s] and

[Biggs’] names.

Sergeant Shabazz found a warrant for [Yates], and went to

the address listed at the 3900 block of Franklin Street. When

[Yates] came to the door, Sergeant Shabazz, who was in full

uniform, told him he was there to respond to a burglary alarm.

When [Yates] replied that he did not have an alarm, Sergeant

Shabazz excused himself and called for backup. When Sergeant

Shabazz returned to the door, [Yates’s] wife answered. [Yates]

then tried to slam the door on Sergeant Shabazz and ran towards

the back of the house. Sergeant Shabazz pursued him to the back

door and was able to place [Yates] under arrest.

Sergeant Shabazz remained in touch with Kimberly Jessie

regarding [Biggs], whose whereabouts were still unknown at the

time. [Biggs] was not present in the City of Philadelphia, and was

eventually apprehended by United States Marshalls (sic) on

November 8, 2013.

Trial Court Opinion, 6/17/2016, at 2-5 (record citations omitted).

Relevant to this appeal, at trial, both Kimberly Jessie and her sister,

Lakiesha Jessie, recanted their statements to the police and denied ever

identifying Yates or Biggs as the assailants. Raheim Jackson, the apparent

intended victim of the shooting, never cooperated with the authorities, telling

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them only “some niggas were shooting and that’s all I want to say,” 3 as well

as this brief exchange:

Police Detective: Your Mom was shot, don’t you think you owe to

her to cooperate and tell us what you can about the incident?

Witness: My Mom had me arrested on the same day I was going

to get a job with the school board so she wasn’t looking out for

me.

Id. at 3.

In his first issue, Yates claims there was insufficient evidence to support

any of his convictions. His post-trial motion failed to specify what elements

of any of the crimes were not proven. While this can result in waiver, here,

the trial court did address certain aspects of insufficient evidence, thereby

allowing for appellate review.4 However, we will only review those issues that

were addressed by the trial court’s opinion, as “issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”

Commonwealth v. McGriff, 160 A.3d 863, 872 (Pa. Super. 2017) (citation

omitted); Pa.R.A.P. 302. Accordingly, below we discuss the issues addressed

by the trial court regarding sufficiency of the evidence.

____________________________________________

3 Commonwealth Exhibit 9, Police Interview, 6/18/2013, at 2.

4See Commonwealth v. Tyack, 128 A.3d 254 (Pa. Super. 2015) (vague

Pa.R.A.P. 1925(b) statement can result in waiver); Commonwealth v.

Smith, 955 A.2d 391 (Pa. Super. 2008) (en banc) (where trial court files an

opinion meaningfully addressing vague Pa.R.A.P. 1925(b) statement, waiver

may be avoided).

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Initially, “A conviction for attempted murder requires the

Commonwealth to prove beyond a reasonable doubt that the defendant had

the specific intent to kill and took a substantial step towards that goal.”

Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008) citing 18

Pa.C.S. §§ 901, 2502. Additionally, “It is well-settled that specific intent to

kill can be established through circumstantial evidence such as the use of a

deadly weapon on a vital part of the victim's body.” Commonwealth v.

Johnson, 107 A.3d 52, 66 (Pa. 2014) (citations omitted). Such intent may

also be proven through evidence the defendant fired multiple shots at the

victim, even though none of the shots struck the victim in a vital organ. See

Commonwealth v. Manley, 985 A.2d 252 (Pa. Super. 2009).

Here, the police statements of both Kimberly Jessie and Lakeisha Jessie

identified Yates as one of the individuals shooting at Raheim Jackson, and

multiple witnesses, including the Jessie sisters, reported hearing the assailants

fire between four and six shots each at Raheim Jackson and his mother,

Kimberly Jessie. Additionally, the police found two spent shell casings, both

of which came from the same gun, in the immediate area of the shooting.

Moreover, there was evidence the shootings took place following a

confrontation between Jackson and Yates, ending with Yates and Biggs

chasing Jackson down the street while firing at him. In view of the foregoing,

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we agree with the trial court there was sufficient evidence to support a finding

of guilt regarding attempted murder.5

Next, the trial court determined there was sufficient evidence to support

the verdicts on the firearms charges, 18 Pa.C.S. §§ 6105, 6106, and 6108.6

The trial court noted that it was stipulated that Yates was not eligible to

possess a firearm under § 6105. Because Yates could not obtain a license for

a firearm, pursuant to § 6105, and there was no question the incident took

place in Philadelphia, the open question was simply whether Yates had a

firearm in his possession. The trial court noted that both Kimberly Jessie and

Lakeisha Jessie gave statements to the police that Yates had a handgun in his

possession. That fact, coupled with spent shell casings at the shooting scene,

and additional testimony confirming shots were heard at the relevant time,

____________________________________________

5 In his appellant’s brief, Yates also argued the Commonwealth failed to argue

the applicability of transferred intent in this case. Transferred intent is

relevant if one believes that Raheim Jackson was the intended target of the

shooting, but his mother was inadvertently struck. We note the trial court

instructed the jury regarding transferred intent without objection from either

of the defendants. See N.T. Trial, 1/28/2013, at 20-21. Additionally, the

argument is waived as that specific claim was not raised before the trial court

and was not addressed by the trial court in its trial court opinion. A defendant

may not raise an issue for the first time on appeal. McGriff, supra.

6Persons not to possess a firearm, firearms not to be carried without a license,

and carrying firearms in public in Philadelphia, respectively.

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provide sufficient evidence to support the convictions on the firearms

charges.7

In view of the above, Yates is not entitled to relief on his claim of

insufficient evidence.

Next, Yates argues the verdict was against the weight of the evidence.

Although the claim was preserved in a post-sentence motion, once again, the

claim was non-specific. Nevertheless, the trial court understood the claim to

reference Kimberly Jessie and Lakiesha Jessie both disavowing their signed

statements to the police.8 Our standard of review for a challenge to the weight

of the evidence is, as follows:

____________________________________________

7 Yates argued there was insufficient evidence to support the firearms

convictions under section 6106 and 6108 because the Commonwealth failed

to present any evidence of barrel length of the guns used in the shootings.

See Commonwealth v. Todd, 384 A.2d 1215 (Pa. 1978) (barrel length is an

essential element of the offenses defined in sections 6105 and 6106). Barrel

length of a weapon is specifically part of the definition of a firearm found in

Pa.C.S. § 6102. We note the definition of “firearm” has been amended

regarding section 6105, and certain exceptions, not applicable herein, to

section 6106. See also, Commonwealth v. Gillespie, 821 A.2d 1221 (Pa.

2003) (recognizing the definitional change as to section 6105 only). However,

Yates did not raise this specific claim before the trial court and the trial court

did not address the claim. Accordingly, it has been waived.

8 At trial, Kimberly Jessie testified, “If you all ain’t send those people to my

mom’s house, I never came here. [The Commonwealth sent police to Kimberly

Jessie’s residence to make certain she came to court to testify.] I just want

to be over with this. I am done with it. I moved on with my life and my

grandkids. I don’t want to be bothered or talking about this anymore. I don’t

feel like they life-threatening to me or my children. I just want to leave.” N.T.

Trial, 1/21/2015 at 38.

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An appellate court's standard of review when presented with a

weight of the evidence claim is distinct from the standard of review

applied by the trial court:

Appellate review of a weight claim is a review of the exercise

of discretion, not of the underlying question of whether the

verdict is against the weight of the evidence.

[Commonwealth v.] Brown, 648 A.2d [1177] at 1189

[(Pa. 1994)]. Because the trial judge has had the

opportunity to hear and see the evidence presented, an

appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when

reviewing a trial court's determination that the verdict is

against the weight of the evidence.. Commonwealth v.

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One

of the least assailable reasons for granting or denying a new

trial is the lower court's conviction that the verdict was or

was not against the weight of the evidence and that a new

trial should be granted in the interest of justice.

[Commonwealth v.] Widmer, 560 Pa. [308] at 321-22, 744

A.2d [745] at 753 (emphasis added).

This does not mean that the exercise of discretion by the trial court

in granting or denying a motion for a new trial based on a

challenge to the weight of the evidence is unfettered. In describing

the limits of a trial court's discretion, we have explained:

The term “discretion” imports the exercise of judgment,

wisdom and skill so as to reach a dispassionate conclusion

within the framework of the law, and is not exercised for the

purpose of giving effect to the will of the judge. Discretion

must be exercised on the foundation of reason, as opposed

to prejudice, personal motivations, caprice or arbitrary

actions. Discretion is abused where the course pursued

represents not merely an error of judgment, but where the

judgment is manifestly unreasonable or where the law is not

applied or where the record shows that the action is a result

of partiality, prejudice, bias or ill-will.

Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M.

Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85

(1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1055-56 (Pa. 2013).

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Here, the trial court succinctly determined:

In the instant case, [Yates] and his co-defendant were

immediately identified by the complainant and her sister as the

shooters. Although both women testified differently at trial,

evidence of the earlier statements made to police were presented

and entered into evidence. The jury had the opportunity to

observe these inconsistencies in testimony and was able to take

this into account when deliberating. The fact that [Yates] and Co-

Defendant were found guilty after all the evidence was presented

was not contrary to the evidence or shocking to the conscience.

The jury is always free to determine which testimony to believe

and how much weight to give testimony. Here, the jury chose to

credit the statements of the complainant and her sister, and the

testimony of the detectives investigating the case. The fact that

the jury found [Yates] and his co-defendant guilty after weighing

all the evidence does not shock one’s sense of justice.

Trial Court Opinion, 6/17/2016, at 6-7 (citation omitted).

We have reviewed the certified record and find no abuse of discretion in

the trial court’s determination. Therefore, Yates is not entitled to relief on this

issue.

In his third issue, Yates claims the trial court erred in providing an

erroneous identification charge to the jury. Specifically, Yates argues the trial

court misled the jury by suggesting Kimberly Jessie and Lakeisha Jessie had

identified him as a shooter at trial.

Our review of a challenge to a jury charge is well settled:

“When reviewing a challenge to a jury instruction, we review the

charge as a whole to ensure it was a fair and complete statement

of the law.” Trial courts possess great discretion in phrasing jury

instructions so long as the law is clearly, adequately, and

accurately presented to the jury. “[A] trial court need not accept

counsel’s wording for an instruction, as long as the instruction

given correctly reflects the law.”

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Commonwealth v. Towles, 106 A.3d 591, 607 (Pa. 2014) (internal citations

omitted), cert. denied, 135 S.Ct 1494 (U.S. 2015).

The trial court initially instructed the jury as follows:

Now, in their testimony, Lakeisha Jessie and Kimberly Jessie

have identified the defendants as persons who committed the

crime. In evaluating their testimony in addition to the other

instructions I provided to you for judging testimony of witnesses,

you should consider the following factors: Did the witness have a

good opportunity to observe the perpetrator of the offense; was

there sufficient lighting for them to make their observation; where

(sic) they close enough to the individual to note their facial and

other physical characteristics as well as any clothing they were

wearing; have they made prior identification[s] of the defendant

as perpetrator of these crimes or at any other proceedings; was

their identification positive or was it qualified by any hedging or

inconsistencies; during the course of this case did the witness

identify anyone else as [a] perpetrator.

In considering whether or not to accept testimony of

Lakeisha Jessie and/or Kimberly Jessie you should consider all the

circumstances under which the identification[s] were made.

****

You cannot find defendant guilty unless you are satisfied

beyond a reasonable doubt by all the evidence, direct and

circumstantial, not only that the crime was committed, but that it

was [the] defendant who committed it.

N.T., 1/28/2015, at 15-17. At the conclusion of the charge, the court

conducted a brief sidebar discussion with counsel, and then returned with the

following additional instructions concerning identification evidence:

And as for the instruction I gave you regarding identification

testimony by the witnesses that I mentioned to you previously, I

want to make it clear that that instruction which starts off with “in

their testimony the witnesses have identified the defendant as

[the] person who committed the crime”, that refers to the

previous identification done to the police and statements that

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were recorded by the police which were presented to the witness

in court. And I’m referring to their previous identification.

That’s what that instruction which deals with identification

testimony that I read to you and it applies to the witness that I

gave to you which previously were Lakeisha Jessie, Kimberly

Jessie, and I believe, I just covered Lakeisha Jessie and Kimberly

Jessie.

Id. at 29. After the jury retired for deliberations, Yates’s attorney objected to

the court’s additional instruction, requesting the court specifically instruct the

jury “there was no identification evidence presented from either of these two

witnesses in court[.]” Id. at 32. Further, he complained the additional

instruction was inadequate because it was up to the Commonwealth to prove

“whether or not these women identified these two defendants as the doers,”

and that “the jury has now been instructed that [the witnesses] did in fact do

that at some point.” Id. Trial counsel for co-defendant Biggs joined in Yates’s

objection. See id. at 33. However, the court determined the instruction

was proper. See id. at 35.

We find no reason to disagree with the trial court’s ruling. Although the

court initially misstated that Lakeisha and Kimberly had identified Biggs and

Yates in their trial testimony, its additional instruction made clear that the

witnesses identified Yates and Biggs only in their prior statements to police.

The court had earlier instructed the jury that it could accept those prior

inconsistent statements in judging the witnesses’ credibility, and could “regard

[that] evidence as proof of the truth of anything that the witness said in the

earlier statement.” Id. at 21.

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Prior to deliberation, the trial court corrected its misstatement and

accurately stated that both witnesses had identified Yates as a shooter prior

to trial. Examined in the context of the entire jury charge, including the

instruction regarding credibility and inconsistent statements, we find the

court’s charge “clearly, adequately, and accurately” presented the law to the

jury, as required by Towles, supra. Accordingly, Yates is not entitled to relief

on this issue.

In his final argument, Yates claims the trial court erred in announcing a

stipulation to the jury, he had not agreed to. On January 22, 2015, the trial

court informed the jury as follows:

Ladies and Gentlemen, it has been agreed to among counsel

regarding the issue locating the bullet or fragment that Officer

Scott came out to the house two days later, as this witness [Dr.

Rev. Della Jamison] has testified, and he was unable to find the

bullet or bullet fragment at that time.

N.T. Trial 1/22/2015, at 91.

Although counsel for Yates objected to this “stipulation,” in discussing

the issue at sidebar, counsel indicated his argument regarding the bullet was

as follows:

And eventually instead [of] arguing no bullet, I’m going to argue

they looked for it and didn’t find it. That’s all. And they didn’t.

The police didn’t find it.

Id. at 88.

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While counsel’s intended argument appears to mirror the stipulation,9

counsel objected. Over counsel’s objection, the stipulation was announced to

the jury. Assuming, arguendo, that the trial court erred in announcing a

stipulation that was not specifically agreed to, Yates nonetheless fails to

demonstrate prejudice. He argues he was prejudiced because,

The Court allowed testimony with regard[] to the bullet entering

into Ms. Jameson’s home presumably to allow the Commonwealth

to prove the intent to kill on behalf of the doers. This stipulation

may or may not have swayed the jury to ultimately find that the

doers had the intent to kill; that is because this particular evidence

would clearly go to prove malice on behalf of the doers.

Yates’s Brief at 28.

This argument is illogical. The “stipulation” merely noted that two days

after the shooting, a police officer, following up on the report of a bullet coming

through a window, could not find any bullet at that time. We cannot see how

the stipulated inability to find a stray bullet demonstrates the “doers” were

intent upon killing someone. Additionally, Yates has argued that the defense

of this matter was one of identity – Yates denied he was one of the assailants.

See Yates’s Brief, at 26 (“The defense in the case was of identification, nor

[sic] self-defense or another affirmative defense.”). The “stipulated” fact did

nothing to prejudice that defense.

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9 The trial court announced the “stipulation” in order to prevent any of the

parties from inadvertently opening the door to the fact that a bullet fragment

was found in Dr. Jamison’s wall sometime later. The fragment had been

previously ruled inadmissible.

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Because Yates can demonstrate no prejudice, he is not entitled to relief

on this issue.

In light of the foregoing, we find that Yates is not entitled to relief on

any of his claims. Accordingly, his judgment of sentence must be affirmed.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/17

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