Com. v. Bailey, J.

J. S66035/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JOSIAH DAVON BAILEY, : No. 2085 EDA 2017

:

Appellant :

Appeal from the Judgment of Sentence, January 12, 2017,

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-CR-0004789-2015

BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 15, 2019

Josiah Davon Bailey appeals from the January 12, 2017 judgment of

sentence entered by the Court of Common Pleas of Montgomery County

following his conviction of: corrupt organizations, conspiracy, two counts

each of attempted murder and aggravated assault and one count of

possession of a firearm without a license.1 The trial court sentenced

appellant to an aggregate term of 25 to 57 years’ imprisonment. After

careful review, we affirm.

The trial court provided the following synopsis of the factual and

procedural history of this case:

During the fall and winter of 2014, Brothas from

Another (“BFA”) and Straight Cash Money Gang

1 18 Pa.C.S.A. §§ 911(b), 903(a), 901(a), 2702(a), and 6106(a),

respectively.

J. S66035/18

(“SCMG”) were at war in the streets of Pottstown,

Montgomery County. Formerly one gang, the two

factions broke off and engaged in violence and drug

trafficking. Devon Vogelsang, Markel Harper,

Ian Shawell, [appellant] and others were associated

with BFA. Abraham Charriez, Christopher Charriez,

Jose Charriez, Dathan Stevens, Daniel Garcia,

co-defendant Alexander Scott and others were

associated with SCMG. Law enforcement conducted

an extensive investigation using court ordered

wiretaps, search warrants, surveillance and

controlled buys. The investigation, dubbed

“Operation War Ready,” revealed that [sic] the

following.

On November 25, 2014, Devon Vogelsang and

Dathan Stevens shot each other at Rolling Hills

Apartments in Pottstown, Montgomery County.

Vogelsang was hospitalized in Lehigh Valley Hospital.

A .32 caliber gun was recovered from the scene

which matched the bullet recovered from Stevens’

leg.

On November 30, 2014, Markel Harper shot his rival

Abraham “Fl[o]cco” Charriez in the area of Chesnutt

and Franklin Streets. Markel Harper gave a

statement to police, wherein he detailed the ongoing

gang war between BFA and SCMG.[Footnote 1]

Harper told police that he shot Flacco because “he

was trying to kill me. He sent his boys to shoot me

and I had to handle the situation before they killed

me.” Seven cartridge casings were recovered from

the scene, all from the same .40 caliber gun.

[Footnote 1] He gave the statement to

Detective James Carbo on March 8,

2015. Prior to giving the statement, he

was read his constitutional rights, which

he waived and agreed to give a voluntary

statement.

Following Fl[o]cco’s shooting, Harper, [appellant]

and Ian Shawell went to visit Devon Vogelsang in the

hospital. Vogelsang was shot at the Rolling Hills

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apartments a few days prior. Hospital surveillance

footage showed the three men checking in to visit

Vogelsang at the hospital. Cell phone records also

placed [appellant]’s cell phone in the area of the

hospital at 8:21 p.m.

When the men returned to Pottstown, they went to

Johnece Lacy’s apartment; Shawell backed the car

into her driveway. Harper got out of the car and saw

co-defendant[, Scott, appellant,] and Shawell looking

off to the right, and then he saw a flash of light

accompanying a gunshot. He and [appellant] began

shooting back; Harper with the same Smith and

Wesson .40 caliber he used to shoot Fl[o]cco, and

[appellant] with a .380. Shawell didn’t shoot.

9 mm, .40 caliber and .380 shell casings were

recovered from the scene. So many shots were fired

that the police ran out of evidence markers. Shawell

fled the scene in the vehicle and was stopped by

police. Two hundred seventy three bags of heroin

and .380 caliber shell casing were found in the car.

Lieutenant Echevarria opined that the quantity and

packaging of the heroin was consistent with

Possession with the Intent to Deliver. No gun was

recovered from Shawell.

As to the December 24, 2014 shooting of

Daniel Garcia, Harper told police that he, Vogelsang

and [appellant] went to Abraham “Flocco” Charriez’s

house and hid in his neighbor’s walkway. The plan

was for the three men to lie in wait for “Fl[o]cco or

someone from his squad [SCMG],” and shoot them.

He stated, “a blue Cadillac pulled up and double

parked in front of Flocco’s house. I saw

Jun [Jose Charriez] in the back seat and I popped

out of the walkway and started shooting at the

people in the car. I don’t know how many times

Devon [Vogelsang] shot, but when I turned around, I

saw Crakk [appellant] shooting. I know I emptied

the revolver, so I shot six times.” He further stated

that he had a .357 revolver, Vogelsang had an

unknown weapon and [appellant] used the same

.380 that he used in the Elm Street shooting on

November 30, 2014. When asked why they intended

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to shoot Fl[o]cco or a member of his squad, he

stated, “It was a war and they were coming for me,

so I had to handle it.” At the conclusion of his

statement, Harper reviewed his statement, made

one change and signed the document.

On December 26, 2014, Michael Hill[Footnote 2] and

Jamel Williams were shot at in the alley behind

382 N. Evans Street.

[Footnote 2] Michael Hill is Markel

Harper’s father. Alexander Scott was

acquitted of this charge.

On December 29, 2014, Devon Vogelsang was

arrested. A Kel-Tech .380 caliber handgun and a

Taurus 9 mm gun were found in the car at the time

of his arrest. [Appellant]’s phone number was saved

in his phone under “Crakk.” The guns recovered

from Vogelsang were sent to National Medical

Services (“NMS”) for DNA testing. The guns were

compared to the known DNA profiles of

Johnece Lacey, Devon Vogelsang, Markel Harper and

[appellant]. The Kel-Tech .380 contained a mixture

of DNA from at least four contributors.

Johnece Lacey was the only individual excluded as a

contributor. The Taurus contained a mixed [sic] of

DNA from at least five contributors, again excluding

Ms. Lacey. [Appellant] could not be definitively

included or excluded from the result.

Also on December 29, 2014, Detectives Mark Minzola

and Drew Marino interviewed Devon Vogelsang.

Vogelsang was uncooperative, so law enforcement

decided to tell him what they had learned through

their investigation. They told him that they knew

that SCMG and BFA had previously been one gang,

that there had been a split and the names of the

individuals on each side.

On January 5, 2015, Vogelsang made a call from the

prison to “Joey,”[Footnote 3] wherein he details the

law enforcement investigation and what police told

him they knew when he was arrested on an

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outstanding warrant. [Appellant] offers to collect

any outstanding debts for Vogelsang.

[Footnote 3] In his statement to police[,]

Markel Harper indicated that [appellant]

goes by “Crakk whose real name is

Josiah, but we call him Joey.”

On February 11, 2015[Footnote 4], Markel Harper

was shot five times by an unknown shooter in

Leasher Alley. A handgun with Harper’s blood on it

was recovered from the scene. No one was charged

as a result of this shooting.

[Footnote 4] The same date, Scott

posted to Facebook “I’m about to go

celebrate, today is a day.” and on Twitter

“I don’t make excuses I make it happen,

who’s next.”

On February 24, 2015, court ordered wiretaps

intercepted Alexander Scott arranging to sell

Stephen Malenchek 28 bags of heroin for $160. On

February 26, 2015, the men again arranged a deal

for heroin.

Also on February 24, 2015, court ordered wiretaps

intercepted Scott arranging to buy prescription drugs

from Allen Witkowski for resale.

On February 28, 2015, law enforcement listened, in

real time, while Alexander Scott planned to find

Lazard “Laz” Morgalo[Footnote 5] and kill him for

robbing his little brother. Calls in the afternoon

detailed Scott’s journey from Reading to Pottstown,

armed with the Tech-9, and his plan to shoot

Morgalo.[Footnote 7] Law enforcement flooded the

600 block of Chesnutt Street, where homes

associated with BFA were located, in an attempt to

thwart Scott’s plan. Calls between the [sic] Scott

and Jose “Jun” Charriez, a member of SCMG,

indicated that Charriez was armed and prepared to

provide support and to assist Scott in carrying out

his plan to shoot members of BFA.

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[Footnote 5] Morgalo was a member of

BFA.

[Footnote 7] He was also arranging a

drug deal at the same time and was

driven to Pottstown by his customer.

Charriez arrived in the area before Scott and alerted

him to the presence of law enforcement. Upon

hearing of the heavy law enforcement presence,

Scott decided to wait until it grew dark to carry out

the shooting. In a call at 5:29 p.m., Scott can be

heard talking about the clip in his gun being full.

After 9:00 p.m., later calls detail his movements

again, as he crept through the streets, armed with

the Tech-9, trying to find Morgalo. Calls indicated

that, again, Charriez was ready to back him up.

During these calls, Scott was calmly and quietly

relaying his location to Charriez as he crept through

the alley near the 600 block of Chesnutt Street. Law

enforcement located and removed Morgalo from the

street. Unable to find Morgalo to carry out his plan,

Scott arranged a ride and left the area.

On March 2, 2015, police intercepted calls between

Alexander Scott and a customer setting up a drug

deal in Pottstown. Law enforcement spotted Scott,

he fled on foot and was ultimately arrested with a

Tech-9 on his person, 53 vials of crack, heroin, three

cell phones and empty vials. Again, possessed with

the intent to deliver.[Footnote 8]

[Footnote 8] Search warrants on homes

associated with SCMG uncovered larger

amounts of drugs and the same

packaging material that was on

[appellant] at the time of his arrest.

Clothing with SCMG on it was also

recovered.

The complaint in the instant matter was filed on

May 12, 2015. On June 30, 2015, the case was

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transferred to the Court of Common Pleas. On

July 16, 2015, the Commonwealth filed a notice of

joinder, joining [appellant]’s case with the cases

indexed at 3945-15, 3946-25, 3947-15, 3655-15,

3656-15, 3657-15, 4787-15, 4788-15, 4789-15,

4790-15 and 4791-15. A pretrial conference was

scheduled for September 10, 2015. On

September 1, 2015, the Commonwealth filed a

second notice of joinder. On September 10, 2015,

the case was placed on the trial list.[Footnote 9] On

October 13, 2015, appointed counsel filed a Motion

for Hearing or All Charges to be Dismissed. On

October 14, 2015, counsel filed a Petition for a Writ

of Habeas Corpus and a Motion to Modify Bail. On

November 3, 2015, the Bills of Information were

filed. [Appellant]’s Petition for Habeas Corpus was

scheduled for November 30, 2015. On that date, it

was continued to December 7, 2015. On

December 7, 2015, the hearing was again continued.

On December 21, 2015, [appellant] filed a Petition to

Dismiss. On January 29, 2016, the habeas was

scheduled for February 22, 2016. On February 5,

2015, counsel filed an omnibus pretrial motion. On

February 5, 2016, the habeas corpus and severance

motions were scheduled for February 18, 2016. On

February 5, 2016, the trial listing resulted in a

tentative trial date of April 18, 2016. On February 8,

2016, the Commonwealth sent a letter to the

chambers of the undersigned requesting a trial date

before March 20, 2016. The motion to dismiss was

heard on February 18, 2016 and denied by Order of

March 3, 2015. On April 13, 2016 counsel filed a

motion in limine. On May 26, 2016, the

Commonwealth filed a Motion to Consolidate. On

June 15, 2016, the court denied the motion for

severance. On July 8, 2016, the Commonwealth

filed a Motion to Amend the bills of information in six

of the joined cases, including [appellant]’s. On

July 11, 2016, defense counsel filed a response to

the motion. By order of August 16, 2016, the cases

were scheduled for trial on October 17, 2016. All

outstanding motions were scheduled to be heard on

September 26, 2016. On August 31, 2016, the court

issued an order granting defense counsel’s

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application for the appointment of a private

investigator. On September 6, 2016, counsel filed a

motion to dismiss pursuant to Rule 600. An order

denying the motion was issued on September 28,

2016. The same date, the court granted the Motion

to Amend the bills of information. On October 3,

2016, the Commonwealth filed a motion to admit

other bad acts; a hearing was scheduled for

October 6, 2016. A call of the trial list took place on

October 11, 2016. On October 14, 2016, the Court

denied the Commonwealth’s prior bad acts motion.

Trial commenced on October 17, 2016.

[Footnote 9] The case continued on a

trial track, with monthly trial listing

where neither party requested a

continuance and [appellant] did not

execute a Rule 600 waiver.

Following an eight day jury trial, [appellant] was

convicted of Corrupt Organizations,[Footnote 10]

Corrupt Organizations-Conspiracy,[Footnote 11] two

counts of Attempted Murder[Footnote 12], two

counts of Aggravated Assault,[Footnote 13] and one

count of Possession of a Firearm without a

License.[Footnote 14] On January 12, 2017 he was

sentenced to an aggregate term of 25 to 57 years’

incarceration in a state correctional institution. On

January 20, 2017, [appellant] filed a Post-Sentence

Motion and on May 12, 2017 an amended motion. A

hearing was held on May 12, 2017 and the Motion

was denied by Order of June 20, 2017. This appeal

followed. By order of July 6, 2017, [appellant] was

directed to produce a Concise Statement of Errors,

pursuant to Pa.R.A.P. 1925(b). He has since

complied with that directive.

[Footnote 10] 18 Pa.C.S.A. § 911(b)(3).

[Footnote 11] 18 Pa.C.S.A. § 911(b)(4).

[Footnote 12] 18 Pa.C.S.A. § 901(a).

[Footnote 13] 18 Pa.C.S.A. § 2702(a)(1).

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[Footnote 14] 18 Pa. C.S.A. § 6101(a)(1).

Trial court opinion, 2/20/18 at 1-9 (citations to record omitted; footnote 6

omitted). The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on

February 20, 2018.

Appellant raises the following issues for our review:

1. Whether the trial court committed manifest

abuse of discretion when it failed to grant

severance, or alternatively, did the trial court

commit manifest abuse of discretion by

allowing unfairly prejudicial evidence of

violence and drug dealing, which had no

connection to Appellant at Appellant’s trial?

2. Whether the [trial] court should have denied

the [C]ommonwealth’s motion to amend the

bills of information[?]

3. Whether the testimony of Detective Echevarria

exceeded the bounds of expert testimony[?]

4. Whether the evidence was insufficient to

convict [appellant] of the November 30, 2014,

charge of attempted murder, the

December 24, 2014 charge of attempted

murder, or the charge of Corrupt

Organizations[?]

5. Whether the court should have given a jury

instruction for the charge of recklessly

endangering another person as requested by

the defense[?]

6. Whether the sentence of 25 to 57 years was

harsh and excessive[?]

Appellant’s brief at 3.

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I.

At trial, the trial court granted the Commonwealth’s motion to

consolidate appellant’s trial with Alexander Scott’s trial. In his first issue on

appeal, appellant contends that the trial court erred when it denied his

motion to sever. (Appellant’s brief at 8.) Specifically, appellant claims that

the only “overlap” between appellant and Scott is that they were both

“arrested and charged with being involved in a large scale drug operation.”

(Id. at 9.)

Appellate review of a trial court’s denial for a motion

for severance is as follows:

A motion for severance is addressed to

the sound discretion of the trial court,

and . . . its decision will not be disturbed

absent a manifest abuse of discretion.

The critical consideration is whether the

appellant was prejudiced by the trial

court’s decision not to sever. The

appellant bears the burden of

establishing such prejudice.

Commonwealth v. Dozzo, 991 A.2d 898, 901

(Pa.Super. 2010). The Pennsylvania Rules of

Criminal Procedure govern the severance of offenses.

Rule 583 reads, “The court may order separate trials

of offenses or defendants, or provide other

appropriate relief, if it appears that any party may be

prejudiced by offenses or defendants being tried

together. Pa.R.Crim.P. 583. Further, Rule 582

provides that offenses may be tried jointly under the

following circumstances:

Rule 582. Joinder–Trial of Separate

Indictments or Informations

(A) Standards

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(1) Offenses charged in

separate indictments or

informations may be tried

together if:

(a) the evidence of each

of the offenses would

be admissible in a

separate trial for the

other and is capable

of separation by the

jury so that there is

no danger of

confusion; or

(b) the offenses charged

are based on the

same act or

transaction.

Pa.R.Crim.P. 582(A)(1). Similarly, Rule 563 states:

Rule 563. Joinder of Offenses in

Information

(A) Two or more offenses, of any

grade, may be charged in the same

information if:

(1) the evidence of each of the

offenses would be

admissible in a separate

trial for the other and is

capable of separation by

the jury so that there is no

danger of confusion; or

(2) the offenses charged are

based on the same act or

transaction.

(B) There shall be a separate count for

each offense charged.

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Pa.R.Crim.P. Rule 563.

Commonwealth v. Mollett, 5 A.3d 291, 305-306 (Pa.Super. 2010),

appeal denied, 14 A.3d 826 (Pa. 2011).

Here, the trial court concluded as follows:

The evidence against co-defendant Scott was easily

distinguishable from that against Bailey. In

instructing the jury, the [trial] court stated, “[t]hey

are being tried together, but they have separate

charges, so don’t mix them together.” When reading

the instructions as to the specific charges, the [trial]

court again stated, “I don’t want to confuse you, so

it’s going to take a little longer, but I’m going to read

the charges as to [appellant] first and then the

charges as to Mr. Scott.” The jury was given the

verdict sheet to aid in following along with the

charge and separating the two defendants. When

the charge was finished, the [trial] court again

instructed the jury, “[y]ou’ve now been given all the

charges and you have to consider each one of those

charges and each defendant separately, so you have

some work to do because there’s a lot of charges

there.” There was no danger of confusion for the

jury and while separate acts, all of the acts charged

arose out of one large scale investigation into two

corrupt related, warring organizations. The acts of

each defendant were relevant to flesh out the entire

story and the scale of the organizations in which they

participated.

Trial court opinion, 2/20/18 at 17 (footnotes and citations to the record

omitted).

Based upon our review of the record, we find that the trial court’s

conclusions are based in the record, and that appellant was not prejudiced

by the trial court’s decision to deny appellant’s motion for severance.

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Accordingly, the trial court did not commit an abuse of discretion, and

appellant’s first issue is without merit.

II.

Appellant next argues that the trial court erred when it granted the

Commonwealth’s motion to amend the bills of information filed against

appellant. Specifically, appellant contends that he was never afforded an

opportunity to preserve or create testimony of witnesses pertaining to

charges stemming from an incident that was alleged to have occurred on

December 24, 2014. (Appellant’s brief at 17-18.)

According to Pa.R.Crim.P. 564, the court may permit

amendment of an information “when there is a

defect in form, the description of the offense(s), the

description of any person or any property, or the

date charged, provided the information as amended

does not charge an additional or different offense.”

Pa.R.Crim.P. 564. Moreover, “[u]pon amendment,

the court may grant such post-ponement of trial or

other relief as is necessary in the interests of

justice.” Id. “[T]he purpose of Rule 564 is to

ensure that a defendant is fully apprised of the

charges, and to avoid prejudice by prohibiting the

last minute addition of alleged criminal acts of which

the defendant is uninformed.” Commonwealth v.

Sinclair, 897 A.2d 1218, 1221 (Pa.Super. 2006).

“[O]ur courts apply the rule with an eye toward its

underlying purposes and with a commitment to do

justice rather than be bound by a literal or narrow

reading of the procedural rules.” Commonwealth

v. Grekis, [] 601 A.2d 1284, 1288 ([Pa.Super.]

1992).

As stated in Sinclair, when presented with a

question concerning the propriety of an amendment,

we consider:

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[w]hether the crimes specified in the

original indictment or information involve

the same basic elements and evolved out

of the same factual situation as the

crimes specified in the amended

indictment or information. If so, then

the defendant is deemed to have been

placed on notice regarding his alleged

criminal conduct. If, however, the

amended provision alleges a different set

of events, or the elements or defenses to

the amended crime are materially

different from the elements or defenses

to the crime originally charged, such that

the defendant would be prejudiced by

the change, then the [amendment] is not

permitted.

Sinclair, 897 A.2d at 1221 (quoting

Commonwealth v. Davalos, 779 A.2d 1190, 1194

(Pa.Super. 2001), appeal denied, [] 790 A.2d 1013

([Pa.] 2001) (citation omitted)). Additionally,

[i]n reviewing a grant to amend an

information, the Court will look to

whether the appellant was fully apprised

of the factual scenario which supports

the charges against him. Where the

crimes specified in the original

information involved the same basis

elements and arose out of the same

factual situation as the crime added by

the amendment, the appellant is deemed

to have been placed on notice regarding

his alleged criminal conduct and no

prejudice to defendant results.

Id., at 1222. Further, the factors which the trial

court must consider in determining whether an

amendment is prejudicial are:

(1) whether the amendment changes the

factual scenario supporting the charges;

(2) whether the amendment adds new

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facts previously unknown to the

defendant; (3) whether the entire factual

scenario was developed during a

preliminary hearing; (4) whether the

description of the charges changed with

the amendment; (5) whether a change in

defense strategy was necessitated by the

amendment; and (6) whether the timing

of the Commonwealth’s request for

amendment allowed for ample notice and

preparation.

Id. (citation omitted). Most importantly, we

emphasize that “the mere possibility amendment of

information may result in a more severe penalty . . .

is not, of itself, prejudice.” Commonwealth v.

Picchianti, [] 600 A.2d 597, 599 ([Pa.Super.]

1991), appeal denied, [] 609 A.2d 168 ([Pa.]

1992).

Commonwealth v. Mentzer, 18 A.3d 1200, 1202-1203 (Pa.Super. 2011).

The trial court reached the following conclusion:

The Commonwealth sought, based on information

contained in the affidavit of probable cause and

provided in discovery, to amend the [b]ills [of

information] to provide [appellant] with the specific

dates on which the alleged offenses took place. The

original bills of information, filed on November 3,

2015, charged [appellant] with two counts of

attempted murder. However, the original bills

provided no detail as to the two counts of attempted

murder. The Commonwealth sought amendment to

include the dates and alleged victims of these two

attempted murder charges, which is permissible

under the Rules of Criminal Procedure. The

Commonwealth argued that the amendment outlined

for [appellant] how it intended to proceed at trial and

what evidence would be introduced at trial. As

amended, the bills substantial[ly] narrowed this

window from November 2014 through April 2015 and

provided specific information as to the two counts of

[a]ttempted [m]urder that appeared in the original

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bills of information. Therefore, [appellant] was not

prejudiced by the amendment and had ample notice

of what the Commonwealth intended to prove at

trial.

Trial court opinion, 2/20/18 at 19.

The Commonwealth filed a motion to amend the bills of information on

July 8, 2016, which the trial court ultimately granted on September 28,

2016. As noted by the Commonwealth, appellant failed to file a writ of

habeas corpus in order to determine whether the Commonwealth could

make a prima facie showing pertaining to the amendment to the second

attempted murder charge. (See Commonwealth’s brief at 20-21.) Based

upon our review of the record, we find that appellant was not prejudiced by

the amendments to the bills of information, and accordingly, appellant’s

second issue is without merit.

III.

In his third issue, appellant avers that Montgomery County District

Attorney’s Office Detective Erick Echevarria’s testimony at trial improperly

exceeded his scope as an expert witness. Specifically, appellant contends

that Detective Echevarria improperly interjected his opinion and speculation

as to intent based on his position as a lead investigator in this case.

(Appellant’s brief at 20.) Our standard for the admission of expert testimony

involving coded language in drug transactions is as follows:

[T]he admission of evidence is within the sound

discretion of the trial court and will not be reversed

absent an abuse of that discretion. Commonwealth

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v. Begley, 780 A.2d 605, 620 (Pa. 2001). In

narcotics investigations involving legally intercepted

telephone conversations, expert testimony regarding

the cryptic language used is permissible. See

Commonwealth v. Huggins, 68 A.3d 692

(Pa.Super. 2013) (drug enforcement agent

permitted to testify as both an expert, for the

limited purpose of decoding drug jargon, and a

layperson, regarding his personal perceptions

during the investigation and opinion that

defendant was one of the parties to the

intercepted telephone calls); Commonwealth v.

Doyen, 848 A.2d 1007, 1014 (Pa.Super. 2014 (“the

coded and encrypted language utilized by drug

traffickers” is an appropriate subject for expert

testimony); Commonwealth v. Vitale, 664 A.2d

999, 1001 (Pa.Super. 1995) (same). The standard

for qualifying an expert witness is a liberal one: the

witness need only have a reasonable pretension to

specialized knowledge on a subject for which expert

testimony is admissible. Commonwealth v.

Riffert, 549 A.2d 566, 576 (Pa.Super. 1988),

appeal denied, 562 A.2d 825 (Pa. 1989). The

witness’ expertise may be used in practical,

occupational, or other experiential training; it need

not have been gained through academic training

alone. Id.

Commonwealth v. Kinard, 95 A.3d 279, 288 (Pa.Super. 2014) (en banc)

(emphasis added).

The Huggins court explicitly held that a law enforcement officer may

testify as both an expert and as a layperson. Accordingly, we find that the

trial court did not abuse its discretion when it permitted

Detective Echevarria’s testimony as to his personal perceptions and opinions

during the investigation. Therefore, appellant’s third issue is without merit.

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IV.

Appellant next contends that the evidence presented was not sufficient

to sustain a conviction for two counts of attempted murder and for one

count of corrupt organizations. (See appellant’s brief at 22-26.)

In reviewing the sufficiency of the evidence, we view

all evidence admitted at trial in the light most

favorable to the Commonwealth, as verdict winner,

to see whether there is sufficient evidence to enable

[the fact finder] to find every element of the crime

beyond a reasonable doubt. 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. Although a

conviction must be based on “more than mere

suspicion or conjecture, the Commonwealth need not

establish guilt to a mathematical certainty.”

Moreover, when reviewing the sufficiency of the

evidence, the Court may not substitute its judgment

for that of the fact finder; if the record contains

support for the convictions, they may not be

disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted), appeal denied, 89 A.3d 661 (Pa. 2014).

Attempted Murder

We have previously held as follows:

Under the Crimes Code, “[a] person commits an

attempt when with intent to commit a specific crime,

he does any act which constitutes a substantial step

towards the commission of the crime.” 18 Pa.C.S.A.

§ 901(a). “A person may be convicted of attempted

murder ‘if he takes a substantial step toward the

commission of a killing, with the specific intent in

mind to commit such an act.’” Commonwealth v.

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Dale, 836 A.2d 150, 152 (Pa.Super. 2003) (citation

omitted). See 18 Pa.C.S.A. §§ 901, 2502. “The

substantial step test broadens the scope of attempt

liability by concentrating on the acts the defendant

has done and does not any longer focus on the acts

remaining to be done before the actual commission

of the crime.” Commonwealth v. Gilliam, [] 417

A.2d 1203, 1205 ([Pa.Super.] 1980). “The

mens rea required for first-degree murder, specific

intent to kill, may be established solely from

circumstantial evidence.” Commonwealth v.

Schoff, 911 A.2d 147, 160 (Pa.Super. 2006).

“[T]he law permits the fact finder to infer that one

intends the natural and probable consequences of his

acts[.]” Commonwealth v. Gease, [] 696 A.2d

130, 133 ([Pa.] 1997).

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008), appeal

denied, 967 A.2d 958 (Pa. 2009).

In the case at bar, the Commonwealth charged appellant with two

counts of attempted murder arising from incidents occurring on

November 30, 2014 and December 24, 2014. For the November 30, 2014

charge, appellant contends that the Commonwealth failed to prove beyond a

reasonable doubt that appellant possessed the requisite intent to kill.

Specifically, appellant avers that the shooting at issue involved no planning,

no lying in wait, nor did it involve the use of a deadly weapon on a vital part

of the body. (Appellant’s brief at 24.) Appellant maintains a self-defense

argument in that his only intent was to return fire and to scare the

perpetrators away. (Id.) Appellant further argues that there was no

evidence presented at trial that it was a rival gang that initiated the shooting

or that the shooting was in retaliation for a previous shooting carried out by

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a fellow member of appellant’s gang, dismissing this as “speculation” on the

part of the Commonwealth and trial court. (Id.)

When reviewing the evidence presented in the light most favorable to

the Commonwealth, as verdict winner, we find that the Commonwealth

presented sufficient evidence to prove beyond a reasonable doubt that

appellant possessed the intent to kill during the November 30, 2014 incident

and that appellant’s argument is without merit. During trial, the jury heard

testimony indicating that there was ongoing gang activity taking place

between BFA and SCMG. (See notes of testimony, 10/18/16 at 200-237.)

On November 25, 2014, Devon Vogelsang, a member of BFA, and Dathan

Stevens, a member of SCMG, engaged in a gunfight in which both men were

injured. (Notes of testimony, 10/20/16 at 27-36.) Markel Harper, a

member of BFA, shot Abraham Charriez, a member of SCMG also known as

“Flocco” (hereinafter “Flocco”), several days later on November 30, 2014.

Following “Flocco’s” shooting, Harper stated that he, Ian Shawell, and

appellant went to visit Vogelsang at Lehigh Hospital. (Notes of testimony,

10/18/16 at 225-227.) Harper described what happened after visiting

Vogelsang as follows:

[Shawell] backed his car into a parking spot and I

got out of the car and started walking to the

entranceway. I forgot my cigarettes, so I turned

around and started walking back to [Shawell]’s car.

And that’s when I saw Crakk[2] and [Shawell]

2 The record reflects that appellant’s nickname is “Crakk.” (Notes of

testimony, 10/18/16 at 228.)

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looking over to the right at something. I looked over

and that’s when I saw the spark from a gunshot and

then

....

And then me and Crakk started shooting back. I

couldn’t see who was shooting at us, but they kept

firing at us and we kept firing back at them.

Notes of testimony, 10/18/16 at 227.

The above evidence, while circumstantial, is sufficient to justify a

guilty verdict for an attempted murder charge. Indeed, the Commonwealth

proffered evidence of ongoing gang activity taking place between two rival

gangs, with the November 30, 2014 shooting representing one event in a

series of violent incidents. Therefore, appellant’s claim as it relates to the

November 30, 2014 shooting is without merit.

Appellant next contends that the Commonwealth failed to present

sufficient evidence to justify his conviction for attempted murder as it relates

to the shooting that took place on December 24, 2014. In his brief,

appellant appears to shape the argument as a weight of the evidence claim.

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. Mucci, 143 A.3d 399, 410-411

(Pa.Super. 2016), (quoting Commonwealth v.

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Clay, [] 64 A.3d 1049, 1054-1055 ([Pa.] 2013)). To

successfully challenge the weight of the evidence, a

defendant must prove the evidence is “so tenuous,

vague and uncertain that the verdict shocks the

conscience of the court.” Mucci, 143 A.3d at 411

(quoting Commonwealth v. Sullivan, 820 A.2d

795, 806 (Pa.Super. 2003)).

Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017),

appeal denied, 171 A.3d 1286 (Pa. 2017).

Upon review of appellant’s brief, the argument pertaining to the weight

of the evidence is limited to the credibility of Markel Harper’s testimony

regarding an attempted murder alleged to have occurred on December 24,

2014. (See appellant’s brief at 25-26.) Put another way, appellant invites

us to reassess the jury’s credibility determination as it relates to Harper’s

testimony. We are required to decline this invitation. Indeed, an appellate

court cannot, on a weight of the evidence review, replace the fact-finder’s

determination of credibility with its own determination. See

Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super. 2006),

appeal denied, 919 A.2d 954 (Pa. 2007) (“It is not for this Court to

overturn the credibility determinations of the fact-finder” (citations

omitted)). Therefore, we find that the trial court’s denial of appellant’s

post-sentence motion as it relates to the weight of the evidence was not an

abuse of discretion.

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Corrupt Organizations

The crime of corrupt organizations is codified at

Section 911 of the Crimes Code, which provides, in

relevant part:

It shall be unlawful for any person

employed by or associated with any

enterprise to conduct or participate,

directly or indirectly, in the conduct of

such enterprise’s affairs through a

pattern of racketeering activity.

18 Pa.C.S.[A.] § 911(b)(3). It is also unlawful for a

person to conspire to violate subsection (b)(3). Id.

at § 911(b)(4). Subsection (h) defines “enterprise”

as “any . . . corporation, association or other legal

entity, . . . engaged in commerce and includes

legitimate as well as illegitimate entities and

governmental entities.” Id. at § 911(h)(3). Further,

the subsection lists numerous crimes that constitute

“racketeering activity,” including theft and insurance

fraud, and defines a “pattern of racketeering activity”

as “a course of conduct requiring two or more acts of

racketeering activity one of which occurred after the

effective date of this section.” Id. at §§ 911(h)(1),

(h)(4).

Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa.Super. 2015), appeal

denied, 128 A.3d 220 (Pa. 2015).

Here, appellant avers that the Commonwealth failed to prove two or

more acts of racketeering beyond a reasonable doubt. (Appellant’s brief at

26.) Appellant specifically argues that the Commonwealth’s two acts of

racketeering were the two charges of attempted murder. (Id.) The trial

court notes that the “the evidence established that BFA was a group of

individuals engaged in violence and drug dealing. The two predicate acts in

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this case were the two counts of attempted murder.” (Trial court opinion,

2/28/18 at 33.) As noted above, we determined that the Commonwealth

presented sufficient evidence to warrant convictions for both counts of

attempted murder. Accordingly, the Commonwealth has also set forth

sufficient evidence to warrant a conviction for corrupt organizations and

appellant’s claim is without merit.

V.

Appellant next argues that the trial court erred when it denied his

request to have the jury instructed on the charge of recklessly endangering

another person (“REAP”). (See appellant’s brief at 26-28.) When reviewing

a trial court’s jury instructions, we are held to the following standard:

[W]hen evaluating the propriety of jury instructions,

this Court will look to the instructions as a whole,

and not simply isolated portions, to determine if the

instructions were improper. We further note that, it

is an unquestionable maxim of law in this

Commonwealth that a trial court has broad discretion

in phrasing its instructions, and may choose its own

wording so long as the law is clearly, adequately,

and accurately presented to the jury for its

consideration. Only where there is an abuse of

discretion or an inaccurate statement of the law is

there reversible error.

Commonwealth v. Roane, 142 A.3d 79, 95 (Pa.Super. 2016), quoting

Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa.Super. 2007)

(citations omitted).

In his argument, appellant relies heavily upon Commonwealth v.

Griffin, 456 A.2d 171, 178 (Pa.Super. 1983), which states that REAP is

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“logically” a lesser-included offense of attempted murder. (See appellant’s

brief at 26-28.)3

Historically, the settled law in Pennsylvania has been

that a defendant may be convicted of an offense that

is a lesser-included offense of the crime actually

charged. This doctrine promotes judicial economy,

avoids inconsistent results, and enhances the quality

of jury deliberations by assuring that factfinders,

informed of the option of convicting of lesser

offenses, focus their attention on the presence or

absence of those elements that distinguish the

greater or lesser offenses.

Commonwealth v. Sims, 919 A.2d 931, 938 (Pa. 2007) (citations and

internal quotation marks omitted).

A previous panel of this court has further stated, with regard to jury

instructions:

A jury charge on a lesser-included offense is

permissible so long as it does not offend the

evidence presented, i.e., there is some disputed

evidence concerning an element of the greater

charge or the undisputed evidence is capable of

more than one rational inference. Commonwealth

v. Hawkins, [] 614 A.2d 1198, 1203 ([Pa.Super.]

1992) (en banc). If a rational jury, given the record

evidence, can find the defendant guilty of the lesser-

included offense, the court should instruct the jury

on the law of the lesser-included offense.

Commonwealth v. Ferrari, [] 593 A.2d 846, 848

3 The Commonwealth notes that the Griffin court “offered no analysis”

pertaining to its conclusion that REAP is a lesser-included offense of

attempted murder. (Commonwealth’s brief at 40.) Whether the Griffin

court offered any analysis to its conclusion is of no import here. A decision

of a previous panel of this court is binding precedent absent intervening

authority by our supreme court. Commonwealth v. Pepe, 897 A.2d 463,

465 (Pa.Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008),

cert. denied sub nom. Pepe v. Pennsylvania, 555 U.S. 881 (2008).

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([Pa.Super.] 1991), appeal denied, [] 618 A.2d 398

([Pa.] 1992). See also Commonwealth v.

Phillips, 946 A.2d 103, 110 (Pa.Super. 2008),

appeal denied, [] 964 A.2d 895 ([Pa.] 2009), cert.

denied, 556 U.S. 1264, [] (2009) (reiterating jury

charge on lesser-included offense should be given if

record evidence would reasonably support verdict on

lesser offense).

Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super. 2014).

The Commonwealth contends that any error on the part of the trial

court is harmless. (Commonwealth’s brief at 40-41.) Our supreme court

has defined harmless error as follows:

The doctrine of harmless error is a technique of

appellate review designed to advance judicial

economy by obviating the necessity for a retrial

where the appellate court is convinced that a trial

error was harmless beyond a reasonable doubt. Its

purpose is premised on the well-settled proposition

that a defendant is entitled to a fair trial but not a

perfect one.

Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012), quoting

Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (quotation

marks and brackets omitted).

Here, we find the trial court’s refusal to provide the jury with

instructions pertaining to REAP to be harmless error. As noted in detail

above, the Commonwealth presented sufficient evidence to warrant

convictions for two counts of attempted murder. Accordingly, appellant is

not entitled to relief under his fifth issue on appeal.

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VI.

In his sixth and final issue on appeal, appellant avers that the trial

court’s sentence of 25-57 years’ imprisonment was harsh and excessive.

(Appellant’s brief at 29.) In his argument, appellant challenges the

discretionary aspects of his sentence.

[T]he proper standard of review when

considering whether to affirm the

sentencing court’s determination is an

abuse of discretion. . . . [A]n abuse of

discretion is more than a mere error of

judgment; thus, a sentencing court will

not have abused its discretion unless the

record discloses that the judgment

exercised was manifestly unreasonable,

or the result of partiality, prejudice, bias

or ill-will. In more expansive terms, our

Court recently offered: An abuse of

discretion may not be found merely

because an appellate court might have

reached a different conclusion, but

requires a result of manifest

unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.

The rationale behind such broad

discretion and the concomitantly

deferential standard of appellate review

is that the sentencing court is in the best

position to determine the proper penalty

for a particular offense based upon an

evaluation of the individual

circumstances before it.

[Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007)] (internal citations omitted).

Challenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right.

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Commonwealth v. Sierra, 752 A.2d 910, 912

(Pa.Super. 2000). An appellant challenging the

discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to

determine: (1) whether appellant has

filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the

issue was properly preserved at

sentencing or in a motion to reconsider

and modify sentence, see Pa.R.Crim.P.

[720]; (3) whether appellant’s brief has

a fatal defect, Pa.R.A.P. 2119(f); and

(4) whether there is a substantial

question that the sentence appealed

from is not appropriate under the

Sentencing Code, 42 Pa.C.S.A.

§ 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533

(Pa.Super. 2006), appeal denied, 909 A.2d 303

(Pa. 2006) (internal citations omitted). Objections to

the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing

hearing or in a motion to modify the sentence

imposed. Commonwealth v. Mann, 820 A.2d 788,

794 (Pa.Super. 2003), appeal denied, 831 A.2d

599 (Pa. 2003).

The determination of what constitutes a substantial

question must be evaluated on a case-by-case basis.

Commonwealth v. Paul, 925 A.2d 825, 828

(Pa.Super. 2007). A substantial question exists

“only when the appellant advances a colorable

argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of

the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing

process.” Sierra, supra at 912-913.

As to what constitutes a substantial question, this

Court does not accept bald assertions of sentencing

errors. Commonwealth v. Malovich, 903 A.2d

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1247, 1252 (Pa.Super. 2006). An appellant must

articulate the reasons the sentencing court’s actions

violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010).

Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Second, appellant filed a post-sentence motion on January 20,

2017.

The third procedural prong set forth in Evans requires us to determine

whether appellant’s brief has a fatal defect—or put another way, fails to

include a statement containing the reasons relied on for an allowance of an

appeal “with respect to the discretionary aspects of sentence.” See

Pa.R.A.P. 2119(f). In cases where an appellant has failed to comply with

Rule 2119(f) and the appellee objects, we are not permitted to review the

merits of the claim and must therefore deny allowance of appeal.

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004). Here,

appellant failed to include a Rule 2119(f) statement in his brief and the

Commonwealth objected. (See Commonwealth’s brief at 48.) Accordingly,

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we cannot review appellant’s claim on its merits and deny allowance of

appeal as to the discretionary aspects of sentence.4

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/19

4 Alternatively, even if appellant had complied with Rule 2119(f), he

nonetheless fails to raise a substantial question. A substantial question is

raised when an appellant “advances a colorable argument that the

sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super. 2011) (citation omitted). Here, appellant’s argument

contains little more than a brief recitation of the facts and hyperbolic rhetoric

concerning the sentencing proceedings. (See appellant’s brief at 29-30.)

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