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[U] Commonwealth v. Howkins

Superior Court of Pennsylvania

February 7, 2014



Appeal from the Judgment of Sentence of June 5, 2012 In the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-0000235-2010




Sequoyah Native Hawkins ("Hawkins") appeals from his June 5, 2012 judgment of sentence. We affirm. The trial court aptly has summarized the factual and procedural history of this case as follows:

On August 24, 2009, [Hawkins] was involved in an altercation in the 600 block of Marietta Avenue in Lancaster City, Lancaster County, Pennsylvania. That afternoon Crishon Gray, Rafik VanHook and Thomas Wiley were walking across town towards Buchanan Park where they planned to play basketball. On their way to the park, the group encountered Martine Ferber, [Hawkins'] girlfriend. VanHook approached Ferber and attempted to engage her in a conversation. Ferber informed VanHook that she had a boyfriend, sparking a brief verbal argument between them.
As the conflict concluded and Ferber turned to leave, [Hawkins] approached the scene. [Hawkins] told Ferber to "keep walking" and proceeded over to Gray, VanHook[, ] and Wiley. After shaking Gray's hand, [Hawkins] grabbed VanHook from behind and punched him. [Hawkins] and VanHook fought for a short period of time. Once the fight concluded, [Hawkins] walked across the street where he was joined by Ferber. A few moments later, VanHook crossed the street to talk to [Hawkins.] In an attempt to de-escalate the situation, VanHook told [Hawkins:] "It's okay, it's not that serious, " and placed his arm around [Hawkins] in a friendly-type gesture. While VanHook and [Hawkins] were talking, Gray walked over and punched [Hawkins.] In response, [Hawkins] reached to his waist, pulled out a knife and stabbed Gray in the neck. Gray died as a result of the knife wound.1
1 The entire episode, from the initial interaction between VanHook and Ferber through the stabbing and Gray's death, was recorded by cameras of the Lancaster Community Safety Coalition. These videos were shown multiple times during trial.
After stabbing Gray, [Hawkins fled to Harrisburg, Pennsylvania and, the following day, to Columbus, Ohio. Hawkins] was eventually apprehended on November 10, 2009[, ] in Upper Darby Township, Pennsylvania.
[Hawkins] was charged with Criminal Homicide.[1] After a three-day jury trial, on March 8, 2012[, Hawkins] was convicted of Voluntary Manslaughter.[2] On May 22, 2012, [Hawkins] was sentenced to 8-20 years['] incarceration. [Hawkins] filed a Post Sentence Motion to Modify Sentence on June 1, 2012, which . . . was denied on June 4, 2012.
Following a timely appeal from his judgment of sentence, on July [23], 2012[, Hawkins] filed his Statement of [Errors] Complained of on Appeal and on August 8, 2012[, ] the Commonwealth filed a [r]esponse.[3]
Trial Court Opinion ("T.C.O."), 11/7/2012, at 1-3 (internal citations omitted). Hawkins has raised the following issues for our consideration:[4]
I. Whether the evidence demonstrated by the Commonwealth was insufficient as a matter of law to establish Appellant's guilt beyond a reasonable doubt on the charge of Voluntary Manslaughter?
II. Whether the verdict of guilty to the crime of Voluntary Manslaughter was against the weight of the evidence?
III. Whether the trial court erred by not instructing the jury on Involuntary Manslaughter?
IV. Whether the trial court erred by denying [Hawkins] his request for a private investigator and gang expert witness to establish the practices and habit of violent organizations in which the deceased victim was a member?
V. Whether the trial court erred by denying [Hawkins'] motion to exclude a highly prejudicial video depicting [Hawkins] singing a fictional rap song?
VI. Whether the trial court erred by denying [Hawkins'] request to permit the jury to hear about one of the Commonwealth's witness' pending gun charge under Rule 404(b)?

Hawkins' Brief at 3. We will address each in turn.

Hawkins first claims that the evidence at trial was insufficient to find him guilty of voluntary manslaughter, which is defined as follows:

§ 2503. Voluntary manslaughter.
(a) General rule.—A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable.—A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.
(c) Grading.—Voluntary manslaughter is a felony of the first degree. 18 Pa.C.S. § 2503. Our standard of review is well-settled:
The standard we apply in reviewing the sufficiency of the evidence 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 finder 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.

Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa.Super. 2011) (citing Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010)).

Instantly, Hawkins argues that the Commonwealth failed to produce sufficient evidence to sustain a conviction for imperfect self-defense voluntary manslaughter. Although Hawkins discusses all of the elements of voluntary manslaughter in his brief, the most complete statement of his argument is that "the facts presented to the jury clearly show that [Hawkins] was acting toward the provocation in self-defense without the criminal intent to kill." Hawkins' Brief at 15. Therefore, we discern that Hawkins is arguing that the Commonwealth failed to produce sufficient evidence to: (1) establish that Hawkins intentionally or knowingly killed Gray; and (2) disprove Hawkins' claims of self-defense.[5] Id. at 14-16.

We begin with Hawkins' sufficiency claim related to the specific intent to kill. "[T]he Commonwealth can prove the specific intent to kill through circumstantial evidence." Commonwealth v. Drumheller, 808 A.2d 893, 908 (Pa. 2002) (citing Commonwealth v. Weiss, 776 A.2d 958, 963 (Pa. 2001)). The Pennsylvania Supreme Court has held that "the use of a deadly weapon on a vital part of a human body is sufficient to establish the specific intent to kill." Weiss, 776 A.2d at 963 (quoting Commonwealth v. Walker, 656 A.2d 90, 95 (Pa. 1995)).

Hawkins took the stand and admitted to stabbing Gray in the neck with a knife. See Notes of Testimony Volume V ("N.T. Part V"), 3/7/2012, at 908-10. The Commonwealth presented two Lancaster Safety Coalition video recordings that depicted the incident. The jury watched these video recordings. See Notes of Testimony Volume III ("N.T. Part III"), 3/5/2012, at 446, 464 (entered as Commonwealth's Exhibits 1, 5). The recordings depict the stabbing, as well as Hawkins' initial scuffle with Gray. See N.T. Part V at 905-08 (Hawkins explaining his state of mind while the video evidence is played for the jury). At trial, Hawkins maintained that he did not intend to stab Gray in the neck. N.T. Part V at 908-09. The verdict indicates that the jury found Hawkins' claims incredible. We may not substitute our factual determinations for those of the jury. Estepp, 17 A.3d at 943-44. The jury was free to reach its own conclusions regarding the credibility of Hawkins' testimony and the contents of the video recordings. Our review of the evidence presented to the jury supports the trial court's apt and succinct recitation of events: "[Hawkins] stabbed Gray with a knife, [in]disputably a deadly weapon, in the neck, a vital and sensitive part of the body." T.C.O. at 6. Viewing the trial evidence in the light most favorable to the Commonwealth as verdict-winner, there was sufficient evidence allowing the jury to conclude that Hawkins acted with the specific intent to kill. Thus, Hawkins' claim challenging the sufficiency of the evidence to establish a specific intent to kill fails.

We turn now to Hawkins' sufficiency argument addressing his claims of self-defense. "In determining whether the evidence was sufficient to sustain a verdict of guilty of voluntary manslaughter, as opposed to a finding that the killing was in self-defense, we must view the evidence in the light most favorable to the Commonwealth, as verdict winner, and draw all reasonable inferences therefrom." Commonwealth v. Gillespie, 434 A.2d 781, 783-84 (Pa. 1981). "Where, as here, there was evidence of self-defense, the burden was on the Commonwealth to prove beyond a reasonable doubt that the killing was not committed in self-defense." Id.

Although the defendant has no burden to prove self-defense, . . . before the defense is properly in issue, "there must be some evidence, from whatever source, to justify such a finding." Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977). Once the question is properly raised, "the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense." Id. The Commonwealth sustains the burden of negation if it proves any of the following: that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [him]self therefrom, or that the slayer violated a duty to retreat or avoid the danger.

Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (internal citations modified or removed for consistency; brackets in original).

Hawkins asserts that he was acting in self-defense and that "the killing was justified based on the totality of the circumstances surrounding the stabbing of Crishon Gray." Hawkins' Brief at 13. Even assuming, arguendo, that Hawkins introduced "some evidence . . . to justify" a claim of self- defense, see Mouzon, 53 A.3d at 740-41, the evidence presented by the Commonwealth was sufficient to allow the jury to determine that the Commonwealth had "sustain[ed] the burden of negation." Id. Specifically, the evidence presented by the Commonwealth was sufficient to establish that: (1) Hawkins was the initial aggressor in the altercation that led to the death of Gray; and (2) Hawkins violated the duty to retreat. [6]

The jury heard and observed eyewitness testimonies from the following persons present at the time of the stabbing: Hawkins (N.T. Part V at 885-960), VanHook (N.T. Part III at 498-561), Wiley (N.T. Part III at 563-611), Ferber (N.T. Part V at 854-84), and Michael White[7] (Notes of Testimony Volume IV ("N.T. Part IV"), 3/6/2012, at 626-69). The respective testimonies of White, Ferber, and Hawkins were silent as to which party began the physical altercation, and were limited to merely acknowledging that a fight took place. See N.T. Part IV at 667; N.T. Part V at 863-65, 896. However, the testimonies of both VanHook and Wiley indicated that Hawkins threw the first punch in the initial fight with VanHook, which later escalated, culminating in the slaying of Gray. See N.T. Part III at 503-04, 567-69. VanHook and Wiley both testified that Hawkins attacked VanHook from behind and without provocation. Id. Although VanHook certainly accosted Ferber verbally, there is no indication that VanHook directly addressed Hawkins prior to Hawkins' assault. Viewed in the light most favorable to the trial court as verdict winner, this evidence was sufficient to establish that Hawkins was the initial aggressor.

Moreover, the evidence presented at trial established that, following the initial fight with VanHook, Hawkins crossed Marietta Avenue and rejoined Ferber. T.C.O. at 2; see also N.T. Part V at 898. The evidence also indicated that, at the time of the incident, Hawkins was living at 753 Marietta Avenue. See N.T. Part V at 862-63, 887-88. That location is approximately one block from the location of Gray's murder, which took place in the 600 block of Marietta Avenue. Id. at 887. Even though Hawkins was roughly one block away from his home, he did not go there; he chose to remain in the immediate area after his fight with VanHook concluded. While Hawkins lingered on the sidewalk in the moments following the scuffle with VanHook, the situation escalated. It is well-established under Pennsylvania law that "deadly force[] cannot be used where there is an avenue of retreat, if the defendant knows the avenue of retreat is available." Commonwealth v. Ventura, 975 A.2d 1128, 1143-44 (Pa.Super. 2009). Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence was sufficient to permit the jury to conclude that Hawkins had the ability, and thus the duty, to retreat at the time of the homicide.

For the foregoing reasons, the Commonwealth presented sufficient evidence to negate Hawkins' claims of self-defense based upon both Hawkins' status as an initial aggressor, and his violation of the duty to retreat. See Mouzon, supra. Because we conclude that the Commonwealth sustained its burden to negate self-defense pursuant to theories of initial aggression and the duty to retreat, we need not address the reasonableness of Hawkins' belief that he was in imminent danger of death or serious bodily harm. See Ventura, 975 A.2d at 1143 ("The Commonwealth need only prove one of these elements beyond a reasonable doubt to sufficiently disprove a self-defense claim." (quoting Commonweal v. Burns, 765 A.2d 1144, 1149 (Pa.Super. 2000)). Thus, Hawkins' challenge to the sufficiency of the evidence with regard to self-defense fails.

We turn now to Hawkins' second claim, which challenges the weight of the evidence.[8] Our review is governed by the following principles:

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer, 744 A.2d at 752. Rather, "the role of the trial judge is to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'" Id. at 320, 744 A.2d at 752 (citation omitted). It has often been stated that "a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Brown, 648 A.2d at 1189.
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. Brown, 648 A.2d at 1189. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence.
Commonwealth v. Farquharson, 354 A.2d 545 (Pa. 1976). One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence[.]
Widmer, 744 A.2d at 753 (internal citations truncated for continuity, emphasis added). Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations modified).

Hawkins asserts that his "justification self-defense claim was so evident that the jury could not have reasonably concluded that he was guilty of voluntary manslaughter." Hawkins' Brief at 17. We disagree.

We have reviewed above the legal standard attending negation of self-defense claims, as well as the evidence presented by the Commonwealth at trial that tended to negate Hawkins' claims of self-defense. See supra at 8-12. In relevant part, Hawkins frames the self-defense evidence as follows:

At trial, the Commonwealth offered testimony of Rifiq [sic] VanHook and Thomas Wiley who were active in the attack against Appellant. Testimony was presented that VanHook and Wiley knew [Gray] for years prior to his death. Moreover, the testimony indicated that both VanHook and Wiley ran away from the scene where Gray fell and died as a result of the stabbing. Appellant avers that both VanHook and Wiley possessed weapons and were in the process of disposing them [sic] rather than render aid to their friend. This further provided justification for [Hawkins] to use of [sic] deadly force. [Hawkins] testified in his own defense claiming that he was in fear of death or serious bodily injury prior to the stabbing. [Hawkins] was fearful that if he was knocked down by Gray's punch he would have be [sic] killed or suffered serious bodily injury as a result of the actual punch and/or beating by the group. Appellant testified and the evidence is conclusive that he had no possible way to retreat.

Hawkins' Brief at 18-19. In sum, Hawkins contends that the jury should have concluded that he properly acted in self-defense when he stabbed Gray based upon: (1) Hawkins' own testimony and averments of fear; (2) unsubstantiated claims that VanHook and Wiley disposed of weapons after the homicide took place;[9] and (3) Hawkins' own allegations that the testimonies of VanHook and Wiley were incredible.

Our task in reviewing the weight of evidence is not to second-guess the jury's findings of fact. Indeed, we may not do so. Rather, we determine only whether the trial court abused its discretion in concluding that the verdict did not "shock one's sense of justice." See Clay, supra. We are unpersuaded by Hawkins' argument that the evidence of self-defense presented by Hawkins was so compelling as to warrant overturning the jury's verdict. While the Commonwealth bore the burden of disproving Hawkins' claims of self-defense, it was permitted to do so by establishing any one of the three elements articulated in Mouzon. As noted in our discussion of Hawkins' challenge to the sufficiency of the evidence, the evidence presented by the Commonwealth established both that Hawkins was the initial aggressor in the altercation, and that he violated the duty to retreat. Thus, the trial court did not abuse its discretion in finding that the jury's rejection of justifiable self-defense did not shock its conscience, and therefore was not against the weight of the evidence. Hawkins' weight challenge fails.

In his third issue, Hawkins argues that "the trial court erred by not instructing the jury on Involuntary Manslaughter[.]" Hawkins' Brief at 3. "[O]ur standard of review when considering the denial of jury instructions is one of deference – an appellate court will reverse a court's decision only when it abused its discretion or committed an error of law." Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011) (quoting Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa. 2009)). "The 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." Id. (quoting Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990)). "Involuntary manslaughter is defined as a killing that occurs when, 'as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, [an individual] causes the death of another person.'" Commonwealth v. Fletcher, 986 A.2d 759, 791 (Pa. 2009) (quoting 18 Pa.C.S. § 2504(a)). "An instruction on involuntary manslaughter is not required unless it has been made an issue in the case and the facts would support such a verdict." Id. (citing Commonwealth v. White, 415 A.2d 399, 402 (Pa. 1980)). "Stated as a three-part inquiry, we look to see, first, whether appellant made a timely request for an instruction on involuntary manslaughter, second, whether the offense was made an issue in the case, and finally, whether the evidence at trial could support a verdict of involuntary manslaughter." Commonwealth v. McCloskey, 656 A.2d 1369, 1372 (Pa.Super. 1995). In conducting this inquiry, "we are required to view the evidence in the light most favorable to the defendant." Id. at 1372 n.1.

In relevant part, and without any specific reference to the evidence adduced by Hawkins at trial, Hawkins' challenge to the jury instructions boils down to his statement that "[i]n viewing the totality of the evidence presented at trial . . . the jury may very well have found [Hawkins] guilty of [involuntary manslaughter.]" Hawkins' Brief at 20. We disagree. Although the trial court confirms that Hawkins made a timely request for a jury instruction on involuntary manslaughter, T.C.O. at 8, a thorough review of the certified record has not revealed any such request. However, even assuming, arguendo, that Hawkins entered a timely request for jury instructions on involuntary manslaughter, the offense was neither made an issue in the case, nor was there sufficient evidence at trial to support a verdict on involuntary manslaughter. Accord McCloskey, supra.

Hawkins' discussion of this issue severely undercuts his legal reasoning: "It is admitted that testimony at trial spoke more to the likelihood of Gray's death resulting from self-defense than gross negligence or recklessness. Hawkins did testify that he stabbed Gray in self-defense, under circumstances in which he did not intend to cause death or serious bodily injury." Hawkins' Brief at 20. Although Hawkins argues now that "he committed an unlawful act (stabbing Gray) in a reckless or grossly negligent manner, " id., and therefore was entitled to a jury instruction on involuntary manslaughter, his testimony at trial (and the substance of his brief before this Court) focused upon the theory that he was acting in self-defense. See N.T. Part V at 905-12. Specifically, Hawkins' framed the stabbing of Gray as a defensive "reflex" and justified his action by arguing that "[y]ou can die from getting hit in the head from one punch." Id. at 908-09. Furthermore, Hawkins admitted to stabbing Gray in the neck with a knife. Id. at 908-10. Such an admission was sufficient for the jury to infer that Hawkins had acted with the "specific intent to kill, " which carries this crime far beyond the mens rea of recklessness[10] or gross negligence.[11] Weiss, 776 A.2d at 963; see also 18 Pa.C.S. §§ 302(b)(1)(i)-(ii). This recitation of evidence and legal standards confirms what Hawkins tacitly has acknowledged in his brief: involuntary manslaughter was not made an issue in the case, and a verdict of involuntary manslaughter would not have been supported by the evidence of record. Rather, Hawkins' defense tracked with the statutory language attendant to imperfect self-defense voluntary manslaughter, as opposed to involuntary manslaughter. Compare 18 Pa.C.S. § 2503(b) with 18 Pa.C.S. § 2504(a).

Based upon all of the above, and viewing the evidence at trial in the light most favorable to the defendant, Hawkins failed to make involuntary manslaughter an "issue, " and there was not enough evidence presented to allow a jury to convict on such a charge. "[I]t has long been the rule in this Commonwealth that a trial court should not instruct a jury on legal principles which have no application to the facts presented at trial." McCloskey, 656 A.2d at 1374 (quoting White, 415 A.2d at 400). "To charge a jury on extraneous offenses in homicide trials is inapposite and detrimental to the sound administration of justice." Id. Therefore, it was not an abuse of discretion for the trial court to refuse to issue a jury instruction on involuntary manslaughter. Hawkins' challenge to the jury instructions fails.

In his fourth issue, Hawkins challenges the trial court's refusal to provide him with the funds necessary to obtain the services of an expert witness. Hawkins' Brief at 3. Specifically, Hawkins alleges that the trial court erred in refusing to provide him with the funds necessary to "to retain a gang expert to establish the practice and habit of violent organizations such as the Blood Gang, in which Gray was a member." Hawkins' Brief at 20. "Appointment of expert witnesses and the provision of public funds to hire them to assist in the defense against criminal charges are decisions within the trial court's sound discretion and will not be reversed absent an abuse thereof." Commonwealth v. Wholaver, 989 A.2d 883, 894 (Pa. 2010) (citing Commonwealth v. Albrecht, 720 A.2d 693, 707 (Pa. 1998)).

Hawkins' discussion of this claim is under-developed. It amounts to a bald allegation that, because Hawkins was "classified as an indigent defendant, " the trial court's refusal to provide him with expert witness funds amounted to a denial of "all core resources necessary to present a full and fair defense." Hawkins' Brief at 21. However, Hawkins supports this sweeping claim with only a single citation to Wholaver. That case is inapposite to the instant circumstances. In Wholaver, our Supreme Court upheld a trial court's refusal to provide an in forma pauperis appellant with the services of a psychiatrist because the appellant's mental condition was not at issue during trial. 989 A.2d at 895. The trial court in Wholaver did provide the defendant with access to the services of various experts, but only those which were "necessary to prepare a defense." Id. at 896. Here, Hawkins did not demonstrate adequately that an expert was necessary for the preparation of his defense. "It is clear that a request for professional assistance need not be granted where the [appellant] fails to identify a particularized need for such assistance related to a colorable issue presented in his defense, appeal, or petition, or where an adequate alternative to the request form of professional assistance is available." Commonwealth v. Howard, 719 A.2d 233, 242 (Pa. 1998). Instantly, the trial court adequately has assessed the lack of need for expert witness testimony in this case:

In the case at bar, a "gang expert" was unnecessary. [Hawkins] could have called any number of lay witnesses to speak about gang lifestyles. In fact, [Hawkins] called Jamair LaRue to testify about his association with the Bloods, and the colors, symbols and tattoos that are used to demonstrate gang affiliation. However, [LaRue] stated that Gray was not a member of the Bloods. N.T. Part V at 968-69. Since lay testimony was sufficient to establish the habits of criminal organizations, and because the record established that Gray was not a member of the Bloods, [the appointment of an expert witness was unnecessary.]

T.C.O. at 9 (internal citations modified).

Hawkins' brief before this Court failed to specify in any way why the services of a "gang expert" were vital to his case. Furthermore, Hawkins has not identified any expert that would have been available to testify at the time of trial, nor has he explained why the lay testimony of LaRue was insufficient to establish the practices and habits of the Bloods. Without more development, Hawkins has advanced no argument that leads us to conclude that the trial court erred by denying him access to funding for an expert witness on criminal gangs. Consequently, we conclude that the trial court did not abuse its discretion when it denied Hawkins' request for funding. Hawkins' claim fails.

We turn now to Hawkins' fifth issue, which challenges the trial court's admission of evidence. "The admission of evidence is committed to the sound discretion of the trial court[. A] trial court's ruling regarding the admission of evidence will not be disturbed on appeal 'unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.'" Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010) (quoting Commonwealth v. Einhorn, 911 A.2d 960, 972 (Pa.Super. 2006)). Here, Hawkins challenges the trial court's admission of a video depicting Hawkins performing a violent rap song. He claims that "said video was irrelevant to the case at hand and only was introduced to inflame the jury." Hawkins' Brief at 23. We disagree.

The overriding principle in determining if any evidence . . . should be admitted involves a weighing of [its] probative value versus prejudicial effect. We have held that the trial court must decide first if the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect. Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998). This Commonwealth defines relevant evidence as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401. Relevant evidence may nevertheless be excluded "it its probative value is outweighed by the danger of unfair prejudice, confusion on the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Pa.R.E. 403.

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006) (citations modified). "In a criminal case, evidence of a pertinent trait of character of the accused is admissible when offered by the accused, or by the prosecution to rebut the same." Commonwealth v. Charleston, 16 A.3d 505, 528 (Pa.Super. 2011) (citing Pa.R.E. 404(a)(1)) (italics in original). "[O]ur Supreme Court has interpreted the term 'pertinent' to refer to a character trait that is relevant to the crime charged against the accused." I d. (citing Minich, 4 A.3d at 1071)). Additionally, Pa.R.E. 404 provides:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion that person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in criminal cases:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to limitations imposed by statute a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant's same trait

Pa.R.E. 404.

Instantly, Hawkins offered testimony at trial attesting to his character for peacefulness and avoiding conflict. See N.T. Part V at 890 ("I just seen a lot of – a lot of things and – and been around a lot of things. And from my knowledge of how things work, I try to avoid situations as much as possible. . . . If somebody's fighting or something's going on, I don't run to the fight to see what's going on. It's just certain things I do, just growing up in the city, that I was able to survive growing up by doing these things."); 898 ("[L]ike I said earlier, it's really not my character to fight."); see also Hawkins' Brief at 22 ("[Hawkins] testified that it is not in his nature to become violent.").

Hawkins also introduced evidence that Gray was violent. Specifically, Hawkins testified that Gray had a reputation for violence as a member of the Bloods street gang. See N.T. Part V at 900 ("I know [Gray's] character. I know he's a [B]lood. I – I know they're violent."); 913 ("I knew that [Gray] was a member of the Blood gang, a national-known criminal organization. I know they was violent. I knew pretty much that I had a – death sentence on my head."). Furthermore, Hawkins introduced a photograph that purported to show Gray wearing the colors of the Bloods and flashing gang hand signals, see id. at 894 ("This is a picture of [Gray] and another male with red on, red bandanas, throwing up gang signs."), and also called a witness in a failed attempt directly to establish Gray's membership in the Bloods. See id. at 969 (Jamair LaRue testifying that Gray was not a member of the Bloods).

The preceding review of evidence and testimony makes clear that Hawkins introduced character evidence related both to his own reputation for peacefulness[12] and to Gray's reputation for violence.[13] The strictures of Pa.R.E. 404 and the caselaw cited above make clear that Hawkins was permitted to put Gray's and his own reputations at issue during the trial. However, the Commonwealth equally was entitled to rebut Hawkins' claims. See Pa.R.E. 404(2)(A), (2)(B)(ii); Commonwealth v. Kouma, 53 A.3d 760, 769 (Pa.Super. 2012) (citing Commonwealth v. Fletcher, 861 A.2d 898, 915 (Pa. 2004)) ("[I]f the accused offers such reputation evidence, the Commonwealth may attempt to impeach . . . .).

Our inquiry does not end there. We also must assess whether the rap video's prejudicial effect outweighs its probative value. See Commonwealth v. Story, 383 A.2d 155, 160 (Pa. 1978) ("[I]n determining whether evidence is admissible at trial, the trial court must balance the probativeness of the evidence against its prejudicial impact."). Hawkins argues that evidence is both irrelevant and unduly prejudicial. We disagree.

We begin with a discussion of relevance. The video submitted into evidence by the Commonwealth depicted Hawkins performing a rap song with the following lyrics:

I have a gun up in your face, screaming take off . . . 4-5 with the safety off, right where your face be, dog . . . I pull a pistol and put it to your temple, I watch your brains pop your top like pus from a pimple . . . Fucking with me and I'm gon[n]a have to kill your ass . . . blast the mag, your gone [sic] need a plastic bag . . . sit back and laugh, just watch your gasp, you gonna take your last breath . . . .

Hawkins' Brief at 22; see N.T. Part V at 952-55. Pennsylvania courts have held that song and rap lyrics generally may qualify as relevant evidence when offered to rebut good character evidence offered by the defendant, or to establish an element of a crime. See Commonwealth v. Ragan, 645 A.2d 811, 821 (Pa. 1994) (holding that where defendant puts character trait at issue, rap lyrics are admissible to rebut that assertion); cf. Commonwealth v. Flamer, 53 A.3d 82, 90 (Pa.Super. 2012) (holding that rap lyrics are relevant with regard to establishing the elements of criminal conspiracy).

Here, Hawkins put his reputation for peacefulness directly at issue by testifying that he avoids conflict and violence. By contrast, the video in question depicts Hawkins performing a song that extols conflict and bloodshed. Stated simply, Hawkins opened the proverbial door to the introduction of rebuttal evidence from the Commonwealth related to his reputation for violence. Supported by the basic proposition that song lyrics may be admitted as character evidence at trial, see Ragan, supra, we conclude that the video of Hawkins' performance is "relevant" pursuant to the low threshold set by the Pennsylvania Rules of Evidence. See Pa.R.E. 401 (stating that evidence is relevant when it has "any tendency" to make the existence of any fact more or less probable).

Hawkins also contends that "the prejudicial effect outweighed the probative value to the degree that this video may have been the turning point in the case." Hawkins' Brief at 23. However, Hawkins has not developed a persuasive argument related to prejudice. Ragan and Flamer make clear that lyrics explicitly describing violence do not constitute evidence to be deemed per se unduly prejudicial pursuant to Pa.R.E. 403. While these precedents do not command the automatic admission of all lyrics offered to rebut character evidence, they confirm that such evidence may be admitted if its probative value outweighs its prejudicial effect. See Story, supra.

Here, to be sure, the claim of prejudice is non-frivolous. The lyrical content of the video is graphic, and almost certainly prejudicial in the context of a homicide trial. However, although the content of the video in question depicts Hawkins in an unflattering fashion, "the fact that these statements are harmful to the defendant's case does not make these statements unduly prejudicial." Flamer, 53 A.3d at 90 (citing Kouma, 53 A.3d at 770). In his defense, Hawkins chose consciously to submit his reputation for non-violence to the jury. The video offered by the Commonwealth speaks directly to that reputation, and, therefore, has high probative value as character evidence.

Hawkins' claim of undue prejudice is unavailing. Hawkins' entire argument consists of: (1) an assertion that the video was unduly prejudicial because it did not actually depict Hawkins holding a weapon; and (2) an unsubstantiated claim that "this type of artistic expression is common with young people." Hawkins' Brief at 23. The Commonwealth offered the instant video to rebut Hawkins' claims that he was non-violent, not to establish his possession of a weapon. Thus, the absence of a weapon in the video is of no moment. Furthermore, Hawkins' argument that recordings such as this one are commonplace amongst young people somewhat bolsters its value as community reputation evidence, as opposed to convincing us that the evidence is impermissibly prejudicial.

Based upon all of the above, we conclude that the video depiction of Hawkins properly was admitted for the limited purpose of rebutting Hawkins' character evidence concerning his reputation for peacefulness. As demonstrated above, the evidence was relevant and not unduly or unfairly prejudicial. We conclude that the trial court did not abuse its discretion in admitting that evidence.

Finally, we turn to Hawkins' sixth issue, which challenges the trial court's decision to limit Hawkins' cross-examination of VanHook. Specifically, Hawkins claims that the trial court "erred in denying his request to allow the jury to hear of Commonwealth witness Rafiq VanHook's pending gun charge. . . . Because pending charges against a prosecution witness are relevant to show bias, motive or self-interest in this case, the trial court erred in not allowing this cross-examination." Hawkins' Brief at 23. "It is well-settled that it is within the discretion of the trial court to determine the scope and limits of cross-examination and that [an appellate court] cannot reverse those findings absent a clear abuse of discretion or an error of law." Commonwealth v. Nolen, 634 A.2d 192, 195 (Pa. 1993) (citing Commonwealth v. Birch, 616 A.2d 977, 978 (Pa. 1992)).

The transcript indicates that the scope of VanHook's cross-examination was discussed in-chambers on March 1, 2012. See Notes of Testimony Volume I ("N.T. Part I"), 3/1/2012, at 140-46. Defense counsel stipulated to the permissible scope of cross-examination with regard to VanHook. In relevant part, defense counsel and the assistant district attorney agreed that defense counsel would be permitted to discuss the grading and maximum penalties associated with the offense with which VanHook was charged at the time of trial.[14] Both parties agreed that defense counsel would not discuss the specific nature of the firearm possession charge against VanHook.[15] Id. Defense counsel did not object in chambers to the trial court's decision to limit cross-examination of VanHook, nor did he object during the cross-examination itself. See N.T. Part III at 554. A challenge to the scope of cross-examination which is not raised before the trial court is waived for purposes of appellate review. See Commonwealth v. Nunn, 947 A.2d 756, 762 (Pa.Super. 2008) (citing Pa.R.A.P. 302(a)). Consequently, Hawkins has waived his sixth claim. Judgment of sentence affirmed.

Judgment Entered.


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