J-S31011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 SHAHID ABNEY                              :
                                           :
                    Appellant              :   No. 291 EDA 2017

          Appeal from the Judgment of Sentence December 9, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0012195-2015


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 09, 2018

      Appellant, Shahid Abney, appeals from the judgment of sentence

entered on December 9, 2016, in the Philadelphia County Court of Common

Pleas. We affirm.

      In its opinion, the trial court set forth the underlying facts of this case

as follows:

              The Complainant in this case is 21-year-old Tyree Clark
      (“[the] Complainant”), who was burglarized, robbed, and
      assaulted inside his home at 3017 Euclid Avenue, Philadelphia,
      Pennsylvania. The Complainant testified that in 2014 he moved
      to Philadelphia from Altoona, Pennsylvania, to be with his
      girlfriend (“Kaytlin”) who was pregnant with his son.         The
      Complainant originally lived in the city’s Germantown section with
      his girlfriend and her mother, but he then moved to North
      Philadelphia and lived at 3017 Euclid Avenue. The Complainant’s
      girlfriend and son alternately lived in Germantown and at 3017
      Euclid Avenue, and were staying in Germantown when the crimes
      described below transpired. (N.T., 9/21/16, pgs. 23-25).
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           As well as working full-time in a warehouse, the
     Complainant endeavored to sell music “instrumentals” and involve
     himself in the music business. While marketing his instrumentals,
     the Complainant became acquainted with Appellant and
     [Appellant’s co-defendant, Vernon] Womack, whom he knew
     respectively as “Heed” and “Vern.” Appellant and Womack lived in
     the same neighborhood as the Complainant and fashioned
     themselves as aspiring rappers. During the month or two
     preceding the robbery, the Complainant saw Appellant almost
     every day hanging around the neighborhood of 31st and Berks
     Streets, and on weekends he saw Womack hanging around
     Appellant in the same area. (N.T., 9/21/16, pgs. 25-28).

           On October 13, 2015, Appellant, Womack, and a male
     named Juan went to the Complainant’s home to discuss “making
     music” with the Complainant’s instrumentals. The two-story
     rowhome had three bedrooms and the men discussed music in the
     Complainant’s room, which contained a laptop, television,
     speakers and other “music-making” equipment. (N.T., 9/21/16,
     pgs. 28-30).

            The next day, on October 14, 2015, the Complainant worked
     at his regular warehouse job and then went home. Around 11:50
     p.m. that evening, the Complainant received a phone call from a
     number he did not recognize. The caller identified himself as
     “Vern” and said he was with “Heed” and “wanted to come over
     and make music.” The Complainant expressed reluctance because
     it was late and he was working the next day, but he ultimately
     said “okay” after Vern assured they would not stay long and would
     finish with the instrumentals by 12:30 a.m. (N.T., 9/21/16, pg.
     30-31).

            Vern - i.e. Womack - called again a few minutes later and
     said he was standing across the street from the Complainant’s
     home. After looking out his bedroom window but not seeing
     anyone, the Complainant walked downstairs, opened his front
     door, and encountered Appellant and Womack standing on his
     front porch wearing coats. Upon entering the Complainant’s home,
     both Appellant and Womack pulled out “black semi-automatic”
     guns from their coats and pointed them pointblank at the
     Complainant’s head. (N.T., 9/21/16, pgs. 31-34).

            Appellant and Womack ordered the Complainant upstairs to
     his   bedroom, demanded certain of his possessions, and

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     threatened to kill the Complainant if he lied about the
     whereabouts of any items. Once inside the bedroom, Appellant
     retrieved a belt from a closet and tied the Complainant’s hands
     behind his back. Appellant then pulled down the Complainant’s
     pants and removed his wallet and cellphone from his pockets.
     Womack meanwhile struck the Complainant’s nose with the butt
     of his gun, causing a nosebleed. The Complainant begged Womack
     not to kill him because he has a son, but Womack replied that he
     [did not] give a fuck about the Complainant’s son. (N.T., 9/21/16,
     pgs. 34-36).

           Appellant and Womack placed a black sweater over the
     Complainant’s face so he couldn’t see anything or breathe.
     Because the Complainant still bled from his nose, he was
     swallowing his own blood that continued running down his face
     beneath the sweater. Appellant and Womack then split apart the
     two box springs composing the Complainant’s kingsized bed and
     ordered the Complainant to lay down between them. The men
     threw the bed mattress and a dresser on top of the Complainant,
     further restricting not only his movement but his ability to
     breathe. (N.T., 9/21/16, pgs. 36-38).

             For the next half hour, Appellant and Womack rummaged
     through both floors of the Complainant’s home, threatening to kill
     him all the while. At one point Appellant and Womack pressed
     their guns to the Complainant’s stomach and demanded the
     password for his [iP]hone. Appellant and Womack also used their
     own cellphones to photograph the Complainant’s identification and
     social security card, and threatened to harm the Complainant’s
     girlfriend and son if he informed the police. (N.T., 9/21/16, pgs.
     38-39).

           When they finished ransacking the home, Appellant and
     Womack took all the money from the Complainant’s wallet except
     $20, removed the Complainant from between the box springs, told
     him to count 60 seconds while they left the premises, and ordered
     him to then leave Philadelphia immediately. Pointing their guns at
     the Complainant, Appellant and Womack threatened to kill him if
     they ever saw him again. (N.T., 9/21/16, pgs. 39-41).

           After the intruders departed, the Complainant hastily
     attempted to gather some of his remaining possessions, but
     “everything was ruined ..., ripped up and just out of place.”
     Carrying only a toothbrush and toothpaste, the Complainant left

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     his home and went to a nearby Chinese store for help, but the
     woman working inside the store “laughed” and “wouldn’t help”
     him. The Complainant therefore walked to a shopping center
     around five (5) blocks from his home, and a passerby allowed the
     Complainant to use his phone. The Complainant first called his
     girlfriend, who did not answer, and he then called a taxi for a ride
     to where his girlfriend was staying in Germantown. (N.T.,
     9/21/16, pgs. 45-49).

           The Complainant arrived at the Germantown home around
     2:00 a.m. and told his girlfriend about the incident. The
     Complainant’s girlfriend called an ambulance and accompanied
     the Complainant to Roxborough Hospital, where a doctor called
     911. A police officer arrived around 3:00 a.m. and transported the
     Complainant and his girlfriend to Central Detectives, where he
     gave a statement to Detective Neil Goldstein. At the time, the
     Complainant was unaware of the home invaders’ last names, so
     he identified them by viewing Instagram photographs from the
     accounts of mutual friends. (N.T., 9/21/16, pgs. 49-58).

            After receiving the Complainant’s statement, detectives
     escorted him to Euclid Avenue to search for Appellant and
     Womack, but neither suspect was located and the Complainant
     eventually was driven to his girlfriend’s home in Germantown. The
     following day, on October 16, 2015, the Complainant requested a
     police escort back to his home so he could retrieve some
     belongings. He feared returning alone because Appellant and
     Womack threatened to kill him if they saw him again. Three
     officers in two police vehicles provided the escort, and while in
     route the officers suggested that they survey the area for
     Appellant and Womack. This time the Complainant identified
     Appellant standing on the corner of 31st and Berks Streets with
     several other males, and the officers immediately arrested him.
     (N.T., 9/21/16, pgs. 59-63).

             On November 24, 2015, the Complainant testified before
     the grand jury in this matter, and on the same day he identified
     Womack in a photo array that Detective Goldstein prepared. In
     early December 2015, after testifying before the grand jury, the
     Complainant was contacted on Instagram by Womack. During the
     Instagram conversation, which the Commonwealth presented at
     trial in redacted form, Womack wrote:




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          “Aye ... if u over it then don’t show up to that shit bro,
          it ain’t that deep, how u gonna be this ‘tuff’ rapper but
          you telling that don’t add up bro”

          “hopefully we can move past dat shit 1 day but at the
          end of the day are u gnna stop ya ‘babymom’ from
          showing up to court”

          “Answer this for me, u say u ain’t worry bout that so
          are you gram stop ya bm from going is Wat I’m
          saying? I kno man I fucks wit u, that’s Sumin that
          should of never happen bruh”

          “I kno u ain’t my ‘bro’ but I still fucks wit u, I kno
          where u at wit it, if I ain’t fucks with us … I woulda
          came holla at u but I ain’t on that type time, I got
          respect for u at the end of the day”

          “Exactly man I kno you got a son that u love, I’m
          bouta have a baby nd shit, I’m just focus on music nd
          working for my family wish dat shit never happen, like
          I said tho wish that shit never happen hopefully we
          can make music 1 day, nd i will get u brand new shit
          better than that old shit word. Wym u ain’t get
          something about going to court.”

     (N.T., 9/21/16, pgs. 64-74 and Commonwealth Exhibit “C-44”).

           The Commonwealth also played the recordings of two prison
     phone calls that Appellant made to an unidentified woman shortly
     after his arrest. The transcript of the first conversation, which
     occurred on October 19, 2015, states:

          Woman.      “Whatchu was thinking bout?”

          Appellant. “How I’m gonna get out of this situation.”

          Woman.      “I think there only one way.”

          Appellant. “What you say?”

          Woman.      “I said I think there’s only one way.”

          Appellant. “Exactly.”

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          Woman.      “To have him come up there and say he
          misidentified.”

          Appellant. “Yeah.”

          The transcript of the second conversation, which occurred
     on October 21, 2015, states in relevant part:

          Woman.     “Yeah so what they said you went in his
          house and took his stuff?”

          Appellant. “Yeah.”

          Woman.     “Tied him up and everything.”

          Appellant. “Yeah.”

          Woman.     “And the gun. ... You had a gun and all
          that?”

          Appellant. “Yeah, He said I, what’s his name. Pistol
          whipped him and all that. Its crazy man, but he’s
          saying it’s a grand jury jawn. 22 umm...”

          …

          Woman.      “Alright so. Whatever. What I’m saying, …
          the guy ain’t coming or something like that.”

          Appellant. “Huh?”

          Woman.      “The guy was supposed to come. I say it’s
          best for the guy to come and say he identified the
          wrong person.”

          Appellant. “Yeah.”

     (N.T., 9/22/16, pgs. 29-31 and Commonwealth Exhibit “C-42”).




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Trial Court Opinion, 5/15/17, at 2-8 (internal footnotes and some quotation

marks omitted).1

       Following a trial, on September 20, 2016, the jury found Appellant guilty

of robbery, conspiracy to commit robbery, burglary, carrying a firearm without

a license, carrying a firearm in public in Philadelphia, theft by unlawful taking,

possessing an instrument of a crime, and terroristic threats.2 After the jury

reached its verdict, the trial court held a separate bench trial on the charge of

possession of a firearm by a prohibited person in violation of 18 Pa.C.S. §

6105(a)(1), and the trial court found Appellant guilty.

       On December 9, 2016, the trial court sentenced Appellant to serve a

term of ten to twenty years of incarceration for robbery, followed by one to

two years of consecutive incarceration for burglary.        The trial court also

sentenced Appellant to serve two to four years of incarceration for possession

of a firearm by a prohibited person, and the trial court ordered Appellant to

serve this sentence concurrently with the sentence for robbery. The trial court

imposed no further sentences on Appellant’s remaining convictions resulting

in an aggregate sentence of eleven to twenty-two years of confinement.




____________________________________________


1 Appellant’s co-defendant, Vernon Womack, also filed an appeal. That appeal
is docketed at 298 EDA 2017.

2 18 Pa.C.S. §§ 3701(a)(1)(ii), 903, 3502(a)(1)(i), 6106, 6108, 3921(a),
907(a), and 2706(a)(1), respectively.

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      On December 16, 2016, Appellant filed a timely post-sentence motion

that the trial court denied on December 19, 2016. Appellant filed a timely

appeal on January 13, 2017. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      1. Was the verdict against the weight of the evidence?

      2. Did the court err in not granting the defense motion for a
      mistrial when the following occurred at trial:

            (i) the court partially stated the consciousness of guilt
            jury instruction with respect to the prison telephone
            calls after the court had already ruled that it would not
            give such a charge, and such a charge vitiated the
            effects of the Bruton redaction, and

            (ii) a paralegal from the District Attorney’s Office
            prejudicially testified as to her interpretations of
            Instagram     messages     purportedly   made     by
            [Appellant’s] Co-Defendant Vernon Womack?

Appellant’s Brief at 2-3.

      In Appellant’s first issue, he alleges that the verdict was against the

weight of the evidence. Our standard of review is as follows:

            When considering challenges to the weight of the evidence,
      we apply the following precepts. The weight of the evidence is
      exclusively for the finder of fact, who is free to believe all, none
      or some of the evidence and to determine the credibility of the
      witnesses. Resolving contradictory testimony and questions of
      credibility are matters for the finder of fact. It is well-settled that
      we cannot substitute our judgment for that of the trier of fact.

            Moreover, Appellate review of a weight claim is a review of
      the exercise of discretion, not the underlying question of whether

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      the verdict is against the weight of the evidence. 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 or is not
      against the weight of the evidence. 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.

            Furthermore, in order for a defendant to prevail on a
      challenge to the weight of the evidence, the evidence must be so
      tenuous, vague and uncertain that the verdict shocks the
      conscience of the court.

             A true weight of the evidence challenge concedes that
      sufficient evidence exists to sustain the verdict but questions
      which evidence is to be believed. For that reason, the trial court
      need not view the evidence in the light most favorable to the
      verdict winner, and may instead use its discretion in concluding
      whether the verdict was against the weight of the evidence.

Commonwealth v. Miller, 172 A.3d 632, 642-643 (Pa. Super. 2017)

(internal citations and quotation marks omitted).

      Here, Appellant’s argument merely assails the credibility of the

Complainant. Appellant’s Brief at 10-11. Essentially, Appellant is requesting

this Court to reweigh the Complainant’s testimony; we decline Appellant’s

request. This Court’s responsibility is to review the trial court’s exercise of

discretion, not the underlying question of whether the verdict is against the

weight of the evidence. Miller, 172 A.3d at 643. As stated above, the fact

finder was free to believe all, part, or none of the evidence and to determine

the credibility of the witness. Id. at 642. Our review of the record reveals

that the evidence was not vague or uncertain, and the verdict was not so

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contrary to the evidence as to shock the conscience. The Complainant gave

a detailed recitation of the events leading to Appellant’s arrest and convictions,

N.T., 9/21/16, at 40-86, and any inconsistencies were properly resolved by

the jury.   Miller, 172 A.3d at 642.     We conclude the trial court properly

exercised its discretion in concluding that the jury’s verdict was not against

the weight of the evidence. Accordingly, Appellant is entitled to no relief.

      Next, Appellant avers that the trial court erred in denying his motion for

a mistrial on two grounds: 1)Appellant argues that a mistrial should have been

granted when the trial court partially stated the consciousness-of-guilt jury

instruction concerning prison telephone calls after the trial court ruled that it

would not give such a charge; and 2) Appellant argues that a mistrial should

have been granted when a paralegal from the District Attorney’s Office

prejudicially testified as to her interpretations of Instagram messages

purportedly made by Appellant’s co-defendant Vernon Womack.               We will

address these claims of error in turn.

      Our standard of review of a trial court’s denial of a motion for a mistrial

is as follows:

      A motion for a mistrial is within the discretion of the trial court. A
      mistrial upon motion of one of the parties is required only when
      an incident is of such a nature that its unavoidable effect is to
      deprive the appellant of a fair and impartial trial. It is within the
      trial court’s discretion to determine whether a defendant was
      prejudiced by the incident that is the basis of a motion for a
      mistrial. On appeal, our standard of review is whether the trial
      court abused that discretion.




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Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015) (citations

omitted).

       Appellant first alleges that the trial court erred in “not granting the

defense motion for a mistrial when the … court partially stated the

consciousness of guilt jury instruction with respect to the prison telephone

calls after the court had already ruled that it would not give such a charge[.]”

Appellant’s Brief at 2-3. After review, we agree with the Commonwealth that

Appellant failed to preserve this issue on appeal for two reasons.

Commonwealth’s Brief at 14. First, it is clear from the record that Appellant

failed to request a mistrial on this basis;3 therefore, the issue is waived. See

Commonwealth v. Poplawski, 130 A.3d 697, 729 (Pa. 2015) (holding that

in the absence of a contemporaneous and specific objection at trial, the issue

is waived).    Second, Appellant failed to include this issue in his Pa.R.A.P.

1925(b) statement; accordingly, this issue is waived on that basis as well.

See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any issues

not raised in a Pa.R.A.P. 1925(b) statement will be waived.”).

       Appellant next argues that the trial court should have granted a mistrial

after a paralegal from the District Attorney’s Office testified regarding images




____________________________________________


3 The record reflects that counsel asked to see the trial court at side bar and
a curative instruction was given; however, there is no indication that a mistrial
was requested or denied. N.T., 9/22/16, at 118.

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from Appellant’s social media accounts. The trial court addressed this issue

as follows:

      A mistrial is an extreme remedy that must be granted only when
      an incident is of such a nature that its unavoidable effect is to
      deprive defendant of a fair trial. Commonwealth v. Bracey, 831
      A.2d 678, 682 (Pa. Super. 2003) (citations omitted here). A trial
      court may remove taint caused by improper testimony through
      curative instructions. Id. Courts must consider all surrounding
      circumstances before finding that curative instructions were
      insufficient and the extreme remedy of a mistrial is required. Id.

             The Commonwealth presented the testimony of Maria
      Cerino (“Ms. Cerino”), who is a paralegal at the Philadelphia
      District Attorney’s Office. At the district attorney’s request, Ms.
      Cerino searched social media accounts for information and
      photographs concerning Appellant and Womack, and gathered
      these materials into a packet for the district attorney. While
      testifying, Ms. Cerino identified photographs from Appellant’s
      Facebook page and Instagram profile. (N.T., 9/22/16, pgs. 19-
      27). When asked to identify a photograph in the packet, Ms.
      Cerino testified: “This is a photo from Appellant’s Instagram again,
      and he is standing on the step pointing his fingers in a gun
      motion.” (Id. at pg. 25). Trial counsel immediately objected to Ms.
      Cerino’s testimony, and this Court sustained the objection,
      directing the jury to disregard Ms. Cerino’s interpretation of the
      photograph. This Court instructed:

              Ladies and Gentlemen of the Jury, you are not to
              accept Ms. Cerino’s interpretation of that last
              photograph. You are viewing the photograph with
              your own eyes. It’s up to you to interpret that
              photograph. It’s not up to Ms. Cerino. That answer
              was stricken from the record. I am instructing you
              must disregard it.

      (Id. at pgs. 25-26).

            Juries are presumed to follow the trial court’s instructions,
      and a trial court’s curative instruction is presumed to be sufficient
      to cure any prejudice to Appellant. [Commonwealth v.] Thornton,
      791 A.2d 1190, 1192 [(Pa. Super. 2002)] (citations omitted here).
      Accordingly, this Court’s curative instruction is presumed to be

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       sufficient to cure any prejudice resulting from Ms. Cerino’s
       testimony, and Appellant has not articulated any rebuttal to this
       presumption. Id. Given the collateral and cumulative nature of Ms.
       Cerino’s testimony, together with this Court’s curative instruction,
       a mistrial was wholly unwarranted and Appellant’s appeal on this
       ground is frivolous.

Trial Court Opinion, 5/15/17, at 20-21 (internal brackets and some internal

quotation marks omitted).

       After review, we note that the trial court weighed the remarks made by

the witness against any prejudice that may have resulted, and the trial court

provided a curative instruction. We discern no abuse of discretion in the trial

court’s conclusion that a mistrial was not warranted. Caldwell, 117 A.3d at

774.

       For the reasons set forth above, we conclude that no relief is due.

Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

  Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/18




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