J-S03044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RASEAN MALONE

Appellant No. 1549 EDA 2015

Appeal from the Judgment of Sentence April 27, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003070-2014

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

MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 18, 2016

Rasean Malone and two cohorts robbed two victims and fatally shot one of the victims, Tyrell Woodson. A jury found Malone guilty of second degree murder, attempted murder, conspiracy to commit murder, conspiracy

to commit robbery, robbery, possession of an instrument of crime and carrying firearms in public.1 The court imposed an aggregate sentence of life imprisonment without the possibility of parole plus 10-20 years’ imprisonment.

Malone files this timely direct appeal from his judgment of sentence.

Both Malone and the trial court complied with Pa.R.A.P. 1925. We affirm all

____________________________________________ 1 18 Pa.C.S. §§ 2502(b), 901(a), 903(c), 3701(a)(1), 907(a), and 6108, respectively. J-S03044-16 convictions, but we vacate Malone’s sentence for robbery and remand for resentencing on all other counts of conviction. Malone raises two issues in this appeal: 1. Is [Malone] entitled to an arrest of judgment with respect to his convictions for second degree murder, attempted murder, robbery, criminal conspiracy (two counts), violation of the Uniform Firearms Act and possessing instruments of crime [where] the evidence is insufficient to sustain the verdicts of guilt as the Commonwealth failed to sustain its burden of proving [Malone’s] guilt beyond a reasonable doubt? 2. [Does Malone’s] separate sentence for robbery following a conviction for second degree murder violate[] double jeopardy? Brief For Appellant, at 4. Malone’s first argument is a challenge to the sufficiency of the evidence. When examining such challenges, the standard we apply is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011). The trial court accurately summarized the evidence adduced during trial as follows: Shortly before 2 a.m., on July 1, 2013, Hakim Parker, after leaving a friend’s house, walked on Chester Avenue from 58th to 57th Street. While walking, he met up with Tyrell Woodson and another male. A short time later, Parker and Woodson left the other male and walked on Chester Avenue towards a Chinese restaurant located at 56th Street and Chester Avenue. While Parker and Woodson walked, a smoky gray-colored Hyundai Sonata, with four occupants inside, pulled up alongside them. The Hyundai’s four occupants stared at Parker and Woodson for a moment and then drove off. Soon thereafter, as Parker and Woodson walked, the Hyundai returned and cut directly in front of them. This time only the driver was inside. Approximately fifteen seconds after the Hyundai cut in front of Parker and Woodson, the three occupants who were previously in the Hyundai walked from Ithan Street onto the same side of Chester Avenue as Parker and Woodson. As Parker and Woodson walked toward the three males, the tallest of the three males stepped in front of Parker and Woodson, pointed a revolver at them, and stated, ‘Don’t move or I’m gonna blow your shit smooth off.’ At that moment, Parker and Woodson retreated from the three males and took off running. Parker sprinted south across Chester Avenue towards Frazier Street in the direction of his home. Woodson ran in the opposite direction of Parker and turned the corner from Chester Avenue and ran northbound onto Frazier Street with the taller male with the gun chasing after him. As Parker raced home, he heard multiple gunshots. A clock from a recovered surveillance video, which captured part of the confrontation between Parker, Woodson, and the three males, indicates that the confrontation began at or about 1:48:30 in the morning. Within five minutes of the initial confrontation, at approximately 1:52 or 1:53 a.m., police responded to a radio call for the 1600 block of Frazier Street. When police arrived at Frazier Street a short time later, they J-S03044-16 found Tyrell Woodson lying on the ground with a gunshot wound to his head.

That same day, at 11:00 a.m., Woodson was pronounced dead at the Hospital of the University of Pennsylvania. Assistant Medical Examiner, Dr. Albert Chu, from the Philadelphia Medical Examiner’s Office, testified that the manner of Woodson’s death was homicide caused by a single gunshot wound to the right, backside of Woodson’s head.

On October 19, 2013, police arrested Dasaahn McMillan for firearm possession. After his arrest, McMillan informed police that he was willing to speak with them in reference to the shooting death of Woodson. At the time Woodson was killed, McMillan lived with his girlfriend, Sheronda Miller, and her daughter, Raven Williams. Williams, at the time, dated [Malone].

In a statement to detectives, McMillan stated that on or around July 5, 2013, he had a conversation with [Malone] in which [Malone] described to him how he ‘jumped out on somebody’ a few nights before. [Malone] told McMillan that he jumped out of a car and told someone ‘give that shit up or I’m going to blow your head smooth off.’ Although McMillan testified at trial that he did not remember the topic of the conversation he had with [Malone] on or around July 5, 2013, McMillan did testify at trial that he remembered telling the detectives that [Malone] told him on or around this date that he had previously ‘jumped out o[n] somebody.’

At some point after speaking with [Malone], McMillan spoke with Parker, whom McMillan also knew. McMillan told detectives that Parker, when describing the night Woodson was killed, told McMillan that one of the three males used the phrase ‘give that shit up or I’m gonna blow y’all head smooth off.’ This phrase was almost identical to the phrase [Malone] had earlier told McMillan when he described how he recently ‘jumped out on somebody.’

Noticing the similarities between the two phrases, McMillan asked Parker if he recognized any of the faces of the three males who approached him the night of the shooting. McMillan informed the detectives that Parker had told McMillan that one of the males was short and had distinctive pimples with a bumpy face. At that moment, McMillan realized that Parker was referring

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to [Malone], who also went by the name Shizz. In response to Parker’s description of [Malone], McMillan told detectives that he exclaimed to Parker ‘that’s main man, bro ... [from] South Philly.’ Parker asked if his name was Shizz, which McMillan confirmed it was. While McMillan could not, at trial, pinpoint the exact date of the conversation he had with Parker about the subject shooting, nor could he remember the conversation ‘word for word,’ he did remember having the conversation with Parker, and stated that the conversation had to be not long after Woodson was killed.

After talking to Parker, McMillan again saw [Malone]. McMillan told detectives that [Malone] told McMillan to tell ‘young boy [referring to Parker] to keep my name out of his mouth. I’m going to blow his shit off.’ McMillan also informed detectives that [Malone] admitted to him that he jumped out on Parker and Woodson ‘just to rob them because he had got some bad dope.’ McMillan explained that when [Malone] had bad dope, ‘his money slowed up. He needed money. [Malone] got two daughters. I’m pretty sure he had to buy Pampers and food.’

On October 10, 2013, police detectives interviewed Parker and showed him several photographic arrays to help detectives identify the three males who had approached Parker and Woodson the night Woodson was killed. From the first photo array, Parker identified [Malone]. Parker circled, dated, and signed the photograph and wrote ‘without’ next to [Malone]’s name to indicate that [Malone] did not have a gun in his hand when [Malone] first approached him. In his statement to detectives, Parker stated that, of the three males who approached him that night, it was [Malone] who stood the closest to him and was directly in front of him right before the shooting.

Even though Parker maintained at trial that he did not remember telling the detectives many of the items in his earlier statement, he did confirm at trial that he looked at photo arrays with detectives on October 10, 2013. When shown the photo array at trial that included the circle he placed around [Malone]’s picture, Parker claimed that [Malone] was not his first choice. At the preliminary hearing, however, Parker identified photographs of [Malone] and Harrison as photographs he previously identified for detectives from photo arrays. He also confirmed at both the J-S03044-16 preliminary hearing and at trial that the signature and date on said photo arrays were in his handwriting.

Although Parker informed detectives that he did not personally know [Malone], he did state that he had seen [Malone] about a month before the shooting exiting a red Pontiac Grand Prix at a nearby plaza. [Malone]’s girlfriend, Raven Williams, corroborated that [Malone] did travel with a friend who drove a red Grand Prix. McMillan also informed police that [Malone] and his friends traveled in a burgundy-colored Grand Prix.

From a second photo array presented by detectives, Parker selected William Harrison’s photograph and identified Harrison as the taller male who pointed the gun at them and instructed them not to move. Next to Harrison’s photograph, Parker wrote ‘tall with gun’ and signed and dated the photograph.

In addition to the photo arrays, police also showed Parker five still photographs taken from a surveillance that captured part of the shooting. Parker marked and identified captured imaged in each of the five stills. On the first two stills, he marked and identified himself as well as the gray–colored vehicle that cut in front of him and Woodson. On a third still, Parker marked and identified himself, Woodson, and the ‘tall guy’ who threatened Parker and Woodson with a gun. On a fourth still, Parker identified one of the three males and wrote on the still, ‘guy facing me.’ Parker confirmed that the ‘guy facing me’ was the same male (that is, [Malone]) that he identified from the first photo array shown to him by detectives. On the fifth still, Parker identified himself as the person retreating from the three males and running across Chester Avenue.

On the same surveillance video that detectives used to generate the still photographs, the video shows the male whom Parker identified as [Malone] reaching toward his waistband and walking towards Parker. Parker is then seen turning his back and running across Chester Avenue towards Frazier Street. At that moment, the video shows [Malone] stopping, pulling out a gun, widening his stance, aiming the gun at Parker, and then firing. The surveillance video captured two muzzle flashes from the firearm. The video also shows smoke emitting from the gun’s barrel.

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Five days after the murder of Woodson, on July 6, 2013, while Harrison was incarcerated on a matter unrelated to the subject crime, he made an outgoing call, which was recorded by the prison, to Patricia Myers, his girlfriend. While on the phone with Myers, Myers made a three-way call to Mitchell Spencer. During the conversation with Spencer, Spencer handed the phone to someone who identified himself as Shizz. In the conversation between Harrison and Shizz, in a likely reference to the vehicle used the night of the murder, Harrison asked Shizz, ‘What’s up with that ... car? You ever off that car?’ Shizz responded, ‘Fuck no. We in that shit right now.’

Trial Court Opinion, at 2-7.

Construed in the light most favorable to the Commonwealth, the evidence is sufficient to sustain Malone’s convictions for second degree murder, attempted murder, conspiracy to commit murder, conspiracy to commit robbery, robbery, possession of an instrument of crime and carrying firearms in public. We rely in large part on the trial court’s excellent analysis, which we reprint below:

A ‘person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he: (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.’ 18 Pa.C.S. § 903. An explicit or formal agreement to commit crimes can seldom, if ever, be proved; but a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. Commonwealth v. Perez, 931 A.2d 703, 708-09 (Pa.Super.2007); Commonwealth v. Jones, 874 A.2d 108, 121-22 (Pa.Super.2005). Once the evidence establishes the presence of a conspiracy, ‘conspirators are liable for acts of coconspirators committed in furtherance of the conspiracy.’ See

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Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super.2002) (upholding a second-degree murder sentence where the defendant agreed to serve as a getaway driver for a man who shot two people, killing one, after breaking into a home with a gun).

A person is guilty of robbery if, in the course of committing a theft, he inflicts serious bodily injury upon another or threatens another with or intentionally puts him in fear of immediate serious bodily injury. 18 Pa.C.S.A. § 3701(A)(1) and (i). A robbery is completed when an attempt is made to take the property of another by force or threat thereof. Commonwealth v. Thompson, 648 A.2d 315, 319 (Pa.1994) (overturned on other grounds by Commonwealth v. Widmer, 744 A.2d 745 (Pa.2000)). It is thus not essential that there be an actual theft; it is sufficient that force was used during the attempted theft. Commonwealth v. Lloyd, 545 A.2d 890, 892 (Pa.Super.1998).

Second-degree murder consists of a ‘criminal homicide committed while the defendant is engaged as a principal or an accomplice in the perpetration of a felony.’ 18 Pa.C.S. § 2502(b). The perpetration of a felony is defined as ‘[t]he act of the defendant engaging in or being an accomplice in the commission of or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.’ 18 Pa.C.S. § 2502(d). The malice essential for second-degree murder is imputed [to] a defendant from his intent to commit the underlying felony, regardless of whether a defendant actually intended to physically harm the victim. Commonwealth v. Mikell, 729 A.2d 566, 569 (Pa.1999). The felony-murder rule permits the fact-finder to infer the killing was malicious from the fact the [defendant] was engaged in a felony of such a dangerous nature to human life because the actor, as held to the standard of a reasonable man, knew or should have known, that death might result from the felony.’ Lambert, 795 A.2d at 1023 (quoting Commonwealth v. Legg, 417 A.2d 1152 (Pa. 1980)). Second-degree murder also does not require the element of foreseeability. Lambert, 795 A.2d at 1023. In addition, whether a killing was in furtherance of a conspiracy is a question for the jury to decide. Id. It does not matter, though, whether the defendant anticipated that the victim would be killed in furtherance of the conspiracy. Id.

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The record reflects that when the killing of Woodson took place, [Malone] was a co-conspirator in the perpetration of a robbery, an enumerated felony for second-degree murder. See 18 Pa.C.S.A. § 2502(d). [Malone]’s conduct demonstrates that he took part in a well-coordinated plan to rob Parker and the decedent. The scope of that plan is evidenced by the fact that after [Malone], Harrison, and the two other males stared at and targeted Parker and Woodson, they drove around the block and shortly returned. Upon their return, the driver of the Hyundai cut directly in front of Parker and Woodson to impede their path, while [Malone], Harrison, and a third male, acting in concert, approached Parker and Woodson from the street.

The surveillance video shows that after [Malone] and his co- conspirators walked onto Chester Avenue, [Malone] and Harrison spread out on the sidewalk to cut off any avenues of escape. While Harrison walked towards Woodson, [Malone] walked towards Parker. As soon as Harrison was within a few feet of Woodson, he produced a firearm and threatened Parker and Woodson with force not to move or he would ‘blow [their] shit smooth off.’ As Harrison threatened Parker and Woodson, [Malone] was reaching to his waist in a manner consistent with retrieving a firearm, which he produced once Parker and Woodson fled. When Parker and Woodson fled, [Malone] and Harrison reacted in unison: Harrison immediately ran after Woodson with his gun drawn while [Malone] simultaneously fired his gun at Parker.

The evidence plainly shows that the plan to rob Parker and Woodson was fully set in place before [Malone], Harrison, and the unidentified third male exited the Hyundai. [Malone], Harrison, and the two other males implemented that plan, which culminated once Harrison pointed his gun at Parker and Woodson and instructed them not to move or harm would result. At that moment, the robbery was complete. It is immaterial that there was no actual theft. See Thompson and Lloyd, supra.

Because [Malone]’s conduct makes it clear he was a co- conspirator for the robbery, the malice from the robbery is imputed to the killing of Woodson to make it second-degree murder. See Lambert, supra. The evidence here is more than sufficient to conclude that Woodson’s death resulted from the robbery. The timing and the location of the discovery of Woodson’s body indicate that Woodson was chased and killed

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during the robbery. Within just a few minutes of the confrontation captured by the surveillance camera, police discovered Woodson’s body on Frazier Street.

Further, the ballistic evidence supports Harrison as Woodson’s killer. It was Harrison who first chased after Woodson when Woodson fled. Moreover, Parker identified Harrison’s gun as a revolver. This same type of gun, according to Officer Norman Defields, of the Firearms Identification Unit, fired the bullet extracted from the decedent. Although it is immaterial whether [Malone] actually expected Woodson’s death, the evidence here reflects that [Malone] knew, or should have known, there was a possibility of death to either Parker or Woodson when he agreed to and participated in the armed robbery. See Lambert, supra. Thus, [Malone] is culpable for Woodson’s death.^[2]

[Malone], however, asserts that no evidence establishes his identity as the shooter, principal, accomplice, or co-conspirator in the incident that resulted in the homicide of Woodson or the attempted murder of Parker. Although evidence of identification ‘need not be positive and certain to sustain a conviction,’ the evidence in the instant matter is more than sufficient to identify [Malone] as a shooter, a principle, an accomplice, or a co- conspirator in the subject crimes. Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super.2011) (quoting Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa.Super.2008), appeal denied, 962 A.2d 1196 (Pa.2008). Parker identified [Malone] from a police photographic array as one of the males who approached him the night Woodson was killed. [Malone] was not a stranger ____________________________________________