J. S76018/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

KAREEM EVANS, :

:

APPELLANT :

: No. 2475 EDA 2015

Appeal from the Judgment of Sentence July 13, 2015

In the Court of Common Pleas of Bucks County 

Criminal Division at No(s): CP-09-CR-0005531-2014

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 21, 2016

Appellant, Kareem Evans, appeals from the Judgment of Sentence 

entered by the Bucks County Court of Common Pleas on July 13, 2015. 

After careful review, we affirm. 

The facts, as established at trial and set forth by the trial court, are as 

follows:

The [v]ictim in this matter is a twenty-year-old resident of 

Philadelphia and mother of two children. In August of 

2014, the victim, a former home health aide, had begun to 

engage in prostitution, advertising her services as an 

“escort” on an internet website called “Backpage.”

On August 8, 2014, at approximately 3:00 a.m., the victim 

received a telephone call from a man identifying himself as 

“Kareem,” later identified as [Appellant]. The victim 

 

*

Former Justice specially assigned to the Superior Court.
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agreed to meet [Appellant] at 213 Market Street in Bristol 

Borough, Bucks County. Lorenzo Broggi[] drove the victim 

to the prearranged location where she met [Appellant]. 

[Appellant] then led her on foot to another location, an 

unoccupied residence located on Cedar Street in Bristol 

Borough. After entering an unfurnished backroom of that 

building, the victim plugged the charger for her cellphone 

into a wall outlet.

The victim, already concerned about the change of 

location, became frightened when she heard someone 

jiggling the handle of the front door. When [Appellant] left 

the backroom and headed for the front door, the victim 

immediately used her cell phone to call Mr. Broggi, her 

driver. When [Appellant] returned, he attempted to take 

the phone from the victim but she was able to temporarily 

regain control of it. The victim then attempted to leave 

the building. When she began to do so, she was 

unexpectedly confronted by a second man, later identified 

as co-defendant Qudre McMillan. McMillan was armed with 

a shotgun. He pointed it at her and told her not to move. 

Raising both hands, the victim told McMillan that he could 

take the ten dollars in her pocket and her phone. McMillan 

continued to approach the victim, forcing her to retreat 

into the backroom.

[Appellant] then “dismissed” McMillan from the room and 

proceeded to orally and vaginally rape the victim, 

threatening to “punch her in her f—ing head” and kill her if 

she did not do what she was told. [Appellant] ejaculated 

inside her. As [Appellant] sexually assaulted the victim, 

McMillan occasionally watched from his position in the 

hallway. When [Appellant] then left the room, McMillan 

entered. The victim continued to cry as McMillan vaginally 

raped her. He ejaculated on her buttocks. McMillan then 

left the room. While the victim waited for her attackers to 

return, she heard a door shut. When neither attacker 

returned after two minutes, the victim fled the building.

Shortly after dropping the victim off at the Market Street 

address where [Appellant] was waiting, Mr. Broggi 

received a call from the victim. When he answered, the 

victim did not speak to him. Mr. Broggi heard a scuffle in 

the background. As he listened, he heard a male voice. 
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Mr. Broggi testified that he heard the victim crying and 

yelling. He specifically heard her say that she did not have 

any money with her. He also heard her tell someone to 

leave her alone, and not to hurt her. The phone call 

abruptly ended. Realizing that the victim was in trouble, 

Mr. Broggi returned to Market Street in an attempt to 

locate the victim. He circled the area sounding the horn of 

his vehicle. M. Broggi’s efforts to locate the victim were 

unsuccessful.

At approximately 4:30 a.m., Arthur Carter and his son 

were driving on Market Street approaching Cedar Street 

when the victim ran out from Cedar Street and ran in front 

of his van. When Mr. Carter lowered his window to speak 

to her, she told him that she had been raped and that she 

needed help. Mr. Carter testified that the victim was 

hysterical, that she was crying, and that her hair looked 

“like somebody had been dragging her around.” Her 

clothes were askew and her underwear was pulled out of 

her pants. Mr. Carter called 911 and remained with her 

until assistance arrived. The victim was then transported 

from the scene to Abington Memorial Hospital for a Sexual 

Assault Examination. During that examination, vaginal 

and rectal swabs were obtained.

A search warrant was obtained for the Cedar Street 

address. During the search, the cell phone charger to the 

victim’s telephone was found on the floor of the back room 

of the residence. Police contacted the victim’s cell phone 

carrier who informed them that the victim’s cell phone was 

located at the intersection of Headley Street and Pine 

Street in Bristol Borough, with an uncertainty of thirty-five 

meters. [Appellant] was staying at 801 Pine Street which 

is located at the intersection of Headley and Pine Streets. 

That residence is approximately six blocks away from 

Cedar Street where the assaults occurred.

On August 9, 2014, police observed McMillan in the area of 

Cedar Street. On that same date, police executed a search 

warrant of 801 Pine Street. When police arrived, 

[Appellant] was present. While detectives were executing 

the search warrant, McMillan arrived at the residence. The 

victim’s cell phone was found concealed beneath a seat 

cushion of a sofa inside the residence. Kalesha Cruz, 
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[Appellant’s] fiancée, told police and later testified that she 

observed McMillan give [Appellant] the cell phone on 

Friday, August 8, 2014.

A photo array, which included an image of [Appellant] as

Photograph Number 2, was displayed to the victim. The 

victim almost immediately pointed to Photograph Number 

2, gasped, said, “That’s him. That’s the man who raped 

me,” and began to cry.

The vaginal and rectal swabs of the victim were submitted 

to the Pennsylvania State Police Bureau of Forensic 

Services for serological and DNA analysis. The items were 

determined to contain spermatozoa and the DNA of 

[Appellant] and McMillan.

Trial Ct. Op., 1/7/16, at 2-5 (citations omitted). 

Prior to trial, on February 27, 2015, the Commonwealth filed a written 

motion seeking to admit evidence of witness intimidation for the purposes of 

demonstrating consciousness of guilt. After an offer of proof, the trial court 

granted the motion over the objections of counsel for Appellant and codefendant Qudre McMillan (“McMillan”). 

On March 9, 2015, Appellant’s and McMillan’s three-day joint jury trial 

began. The Commonwealth presented the testimony of ten witnesses, 

including the victim. The court ordered all non-police and non-expert 

witnesses sequestered from the courtroom during witness testimony. 

Relevant to this appeal, during the victim’s cross-examination by McMillan’s 

counsel, the victim became distraught and asked to leave the witness stand. 

The court recessed for 15 minutes, after which, over Appellant’s counsel’s 
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objection, the court permitted the victim to retake the stand and McMillan’s 

counsel to continue with cross-examination. 

On March 13, 2015, the jury convicted Appellant of Rape by Threat of 

Forcible Compulsion, Involuntary Deviate Sexual Intercourse by Threat of 

Forcible Compulsion, Robbery by Threat of Serious Bodily Injury, Robbery by 

Force, Terroristic Threats, Theft by Unlawful Taking, Criminal Conspiracy to 

Commit Robbery by Threat of Serious Bodily Injury, and Criminal Conspiracy 

to Commit Theft.1, 2 

The court deferred sentencing for Appellant to undergo an evaluation 

by the Sexual Offender Assessment Board pursuant to 42 Pa.C.S. § 9799.24. 

Based upon the findings of the Board, and with the agreement of the parties, 

the court found Appellant to be a Sexually Violent Predator. 

 

1 18 Pa.C.S. § 3121(a)(2); 18 Pa.C.S. § 3123(a)(2); 18 Pa.C.S. § 

3701(a)(1)(ii); 18 Pa.C.S. § 3701(a)(1)(v); 18 Pa.C.S. § 2706(a)(1); 18 

Pa.C.S. § 3921(a); and 18 Pa.C.S. § 903(c), respectively.

2 The jury also convicted McMillan of Rape, Robbery by Threat of Serious 

Bodily Injury, and Criminal Conspiracy to Commit Robbery by Threat of 

Serious Bodily Injury. The court sentenced McMillan to an aggregate 

sentence of 20-40 years’ incarceration. McMillan’s appeal from his Judgment 

of Sentence is pending before this Court. See Commonwealth v. 

McMillan, No. 2490 EDA 2015. 

A separate jury convicted Appellant of Criminal Solicitation (Witness 

Solicitation). 18 Pa.C.S. § 902(a). The court sentenced Appellant to 3 1⁄2 to 

10 years’ incarceration, to be served consecutively to the sentence Appellant 

challenges in the instant appeal. Appellant’s appeal from his Judgment of

Sentence for Criminal Solicitation (Witness Intimidation) is pending before 

this Court. See Commonwealth v. Evans, 383 EDA 2016. 
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On July 13, 2015, the court sentenced Appellant to an aggregate 

sentence of 40-80 years’ incarceration, comprised of four consecutive terms 

of 10 to 20 years’ incarceration on the convictions for Rape by Threat of 

Forcible Compulsion, Involuntary Deviate Sexual Intercourse by Threat of 

Forcible Compulsion, Robbery by Threat of Serious Bodily Injury, and 

Criminal Conspiracy to Commit Robbery by Threat of Serious Bodily Injury 

convictions, all first-degree felonies. The court imposed no further penalty 

on the other convictions.

Appellant did not file a Post-Sentence Motion. On August 10, 2015, 

Appellant filed a timely Notice of Appeal. Both Appellant and the trial court 

complied with Pa.R.A.P. 1925.

Appellant raises the following three issues for our review:

1. Did the trial court err in allowing the complainant, in 

violation of the sequestration order, to return to the stand 

to testify without allowing the defense to obtain 

information as to what she was told by the District 

Attorney, the officer, and a victim advocate to encourage 

her to retake the witness stand?

2. Did the trial court err and deny Appellant due process in 

allowing the Commonwealth to introduce evidence of 

witness intimidation against Appellant in violation of 

Pennsylvania Rules of Evidence 401, 402, 403, and 404, 

when these allegations were not only irrelevant to the 

alleged charges in the instant case, but unproven at the 

time of trial and heavily in dispute. As such their 

prejudicial impact far outweighed their probative value?

3. Did the trial court abuse its discretion in imposing an 

aggregate sentence of 40 to 80 years because:
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(a) the sentence is effectively a life sentence and 

constitutes an illegal sentence for the crimes 

charged; and

(b) the maximum sentence imposed on four counts 

which exceeded the aggravated range of sentences 

running consecutively to each other is unduly harsh 

considering the nature of the crime and the length of

the imprisonment imposed against a 22 year old?

Appellant’s Brief at 5-6.

In his first issue, Appellant claims the trial court abused its discretion 

in allowing the victim to return to the witness stand, in violation of the 

court’s sequestration order, without first permitting his counsel to ascertain 

whether the victim had discussed the content of her testimony with the 

District Attorney, a police officer, and a victim advocate, during the court’s 

recess. Appellant’s Brief at 17-18. Appellant argues that, because the court 

precluded his counsel from examining under oath those people to determine 

what they said to the victim to convince her to continue testifying, the court 

was unable to determine the appropriate remedy for violation of the 

sequestration order. Id. at 18. 

A trial court may sequester witnesses in order to “prevent a witness 

from shaping his [or her] testimony with evidence presented by other 

witnesses.” Commonwealth v. Henry, 706 A.2d 313, 320 (Pa. 1997) 

(citation omitted). Whether there has been a violation of a sequestration 

order is a question of fact for the trial court. Commonwealth v. Marinelli, 
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690 A.2d 203, 219 (Pa. 1997). This Court will not overturn the decision of 

the trial court where it is “supported by sufficient credible evidence.” Id.

With respect to Appellant’s claim, the trial court opined as follows:

In the instant case, after the victim left the witness stand, 

this [c]ourt took a fifteen minute recess. Prior to allowing 

the witness to continue her testimony, this [c]ourt allowed 

counsel to question the victim as to whether she discussed 

her testimony while outside the courtroom. The victim 

testified that she did not. This [c]ourt also identified the 

individuals who spoke with the victim and asked each 

person individually if the content of the victim’s testimony 

was discussed. Each person represented to this [c]ourt 

that her testimony was not discussed. Moreover, counsel 

for the [d]efendants conceded that they had no basis [to] 

contradict the representations made to this [c]ourt. This 

[c]ourt therefore properly found that no violation of the 

sequestration order occurred. 

As to [Appellant’s] contention that the [c]ourt should have 

inquired into the exact content of the communications, 

such an inquiry would not have been relevant. The 

purpose of sequestration is to prevent a witness from 

shaping his or her testimony with evidence presented by 

other witnesses. [ ] Therefore, the [c]ourt properly limited 

its inquiry to whether the victim’s testimony was 

discussed.

Trial Ct. Op. at 8-9 (citation omitted).

Our review of the evidence of record, including the trial transcript, 

confirms the trial court’s conclusion that no violation of the court’s 

sequestration order occurred. The victim left the witness stand abruptly 

during her cross-examination, during which time the court recessed. The 

victim then returned to the courtroom. The victim testified, and the parties 

who spoke to the victim during the court’s recess reported, that they did not 
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discuss the victim’s testimony. N.T., 3/10/14 (morning), at 126-27, 141-42. 

Furthermore, neither counsel for Appellant nor counsel for McMillan reported 

to the court having any reason to believe that the victim spent the court’s 

recess discussing the content of her testimony. Id. at 124-26. 

Moreover, permitting the victim to continue her testimony after the 

recess did not undermine the purpose of sequestration—preventing a 

witness from molding her testimony based upon testimony given by a 

previous witness. The victim in this case was not present during the 

testimony of any other witnesses and therefore, even after removing herself 

from the witness stand during her testimony, could not have shaped her 

testimony in accordance with testimony previously taken from other 

witnesses. For these reasons, we conclude there was sufficient credible 

evidence for the trial court to find that no sequestration violation took place. 

Accordingly, Appellant is not entitled to relief on this issue. 

In his second issue, Appellant claims that the trial court abused its 

discretion by admitting evidence of his acts of witness intimidation and his 

plan to induce the victim not to testify. Appellant’s Brief at 19. Upon Motion 

by the Commonwealth, the trial court permitted, as proof of consciousness 

of guilt, the admission of redacted portions of five prison telephone calls 

between Appellant and his fiancée Kaleshia Cruz (“Cruz”), and a letter that 

Appellant wrote to Cruz, which demonstrated that Appellant and Cruz 
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planned to pay the victim not to testify at trial. The court also permitted 

Cruz to testify. 

Appellant argues that the prejudice to him outweighed the probative 

value of this “irrelevant evidence,” and that the telephone calls, specifically, 

did not suggest intimidation or consciousness of guilt.3 Id. at 21. We 

disagree.

Initially, we note that,

[t]he standard of review employed when faced with a 

challenge to the trial court's decision as to whether or not 

to admit evidence is well settled. Questions concerning 

the admissibility of evidence lie within the sound discretion 

of the trial court, and a reviewing court will not reverse the 

trial court's decision absent a clear abuse of discretion. 

Abuse of discretion is not merely an error of judgment, but 

rather where the judgment is manifestly unreasonable or 

where the law is not applied or where the record shows 

that the action is a result of partiality, prejudice, bias or ill 

will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (internal 

citations omitted).

It is well-settled that “any attempt by a defendant to interfere with a 

witness’s testimony is admissible to show a defendant’s consciousness of 

guilt.” Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007). 

 

3 To the extent that Appellant argues in his Brief that the trial court erred in 

permitting the introduction of this evidence because his Witness Intimidation 

charges were severed from the charges herein, and, therefore, evidence of 

the acts giving rise to those charges were inadmissible, we find this claim 

waived as Appellant did not raise this alternative theory of error in his 

Pa.R.A.P 1925(b) statement, and the trial court did not address it. See

Pa.R.A.P. 1925(b)(4)(ii), (vii). 
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In the instant matter, the trial court explained its evidentiary ruling as 

follows:

The evidence admitted at trial established that following 

his arrest, [Appellant] and his fiancée, Kalesha Cruz, 

entered into a conspiracy to identify and locate the victim 

and then to offer her money in an effort to persuade her 

not to appear and/or testify in court. This [c]ourt 

permitted the Commonwealth to introduce a letter written 

by [Appellant] shortly after his arrest, recorded prison calls 

between [Appellant] and Cruz and Cruz’s in-court 

testimony as evidence of consciousness of guilt.

In the letter [Appellant] wrote:

I was wrong. We were supposed to rob her, that’s it. 

But things got out of hand. She a girl from Back 

Page prostituting for money. If you can get in touch 

with her and offer her money, I’m sure she won’t 

show up. You just need to get the correct 

information . . . .

In a recorded call that occurred on August 14, 2014, Cruz 

advised [Appellant], “No luck yet. I’m searching. I sent 

your brother the information, so hopefully he’s been 

searching.” Cruz testified that she was explaining the 

status of her efforts to find the victim. In a recorded call 

that occurred on August 30, 2014, Cruz told [Appellant] 

that she had to think of what to say. At trial, Cruz testified 

that she was referring to what she should say when she 

talked to the victim. During the August 30th conversation, 

[Appellant] told Cruz that, if she talks to the victim, she 

should mention the money first. In a recorded call that 

occurred on August 31, 2014, Cruz told [Appellant] that 

she called “the number.” At trial, Cruz testified that this 

comment referred to the fact that she had called the 

telephone number for “Backpage,” the website [Appellant] 

and McMillan used to contact the victim. Cruz also told 

[Appellant] that she would try to speak with the victim 

when the victim appeared to testify at an upcoming court 

date.
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. . . Evidence concerning [Appellant’s] attempt to offer the 

victim a bribe not to testify was therefore admissible 

against [Appellant].

Trial Ct. Op. at 5-6 (citations omitted).

We agree with the trial court. After reviewing the evidence of record, 

and the relevant authority, we conclude the trial court did not abuse its 

discretion in admitting the evidence and testimony cited supra, for the 

purposes of establishing Appellant’s consciousness of guilt. 

Additionally, as noted by the trial court, it unambiguously instructed 

the jury that “any evidence of witness intimidation could only be considered 

by the jury for purposes of determining consciousness of guilt as to the 

crimes charged in the instant matter and not for any other reason[.]” Id. at 

7. Because a “jury is presumed to have followed the trial court’s 

instructions[,]” we likewise agree with the trial court that Appellant was not 

prejudiced by the admission of the challenged evidence. Commonwealth 

v. Burno, 94 A.3d 956, 977 (Pa. 2014). Accordingly, Appellant’s claim fails. 

In his third issue, Appellant claims to challenge both the legality of and 

the discretionary aspects of his sentence. First, Appellant argues that his 40 

to 80 year sentence is “illegal because it is in essence a life term.” 

Appellant’s Brief at 23. Then, Appellant argues that the trial court abused its 

discretion in sentencing Appellant in the aggravated range and in imposing 

consecutive sentences. Id. at 25-28. We consider these issues in turn.
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Initially, we reiterate that Appellant did not file a Post-Sentence Motion 

in which he challenged the sentence imposed by the trial court. However, 

Appellant purports to challenge the legality of his sentence. When a 

defendant challenges the trial court’s authority to impose a specific 

sentence, a defendant has raised a legality of sentence challenge. 

Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011). A challenge to 

the legality of sentence is non-waivable, and may be considered for the first 

time on appeal. See, e.g., Commonwealth v. Robinson, 931 A.2d 15, 

19-20 (Pa. Super. 2007). 

With respect to his first sentencing sub-issue, Appellant has 

mischaracterized it as a challenge to the legality of his sentence. Within his 

Brief, Appellant argues only that his sentence is excessive given his age at 

the time he committed the crimes for which the jury convicted him and the 

likelihood he will serve most, if not all, of his sentence. Appellant’s Brief at 

23-24. 

Herein, the trial court sentenced Appellant to four consecutive terms of 

ten to twenty years’ incarceration. Appellant concedes that these sentences 

are within the statutory maximums, and acknowledges that, “Pennsylvania 

does not recognize an indeterminate sentence as a life sentence where a 

prisoner is eligible for parole during his lifetime.” Id. at 23 (citing 

Commonwealth v. Baker, 78 A.3d 1044, 1052 (Pa. 2013). Accordingly, as 

this issue does not relate to the trial court’s authority to impose a sentence 
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pursuant to the statutes under which the jury convicted Appellant, he has 

not challenged the legality of his sentence.

In his second allegation of error within his challenge to his sentence, 

Appellant contends that the trial court imposed an excessive sentence. This 

averment challenges the discretionary aspects of his sentence. After 

reviewing the record, we conclude that Appellant has waived this issue on 

appeal. 

“A challenge to the discretionary aspects of a sentence must be 

considered a petition for permission to appeal, as the right to pursue such a 

claim is not absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371 

(Pa. Super. 2012) (en banc) (citation omitted). Prior to reaching the merits 

of a discretionary sentencing issue:

We 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) (citations

omitted) (emphasis added).

Instantly, Appellant failed to preserve the issue at the time of 

sentencing or in a Post-Sentence Motion. Accordingly, Appellant has waived 

his right to challenge to the discretionary aspects of sentence on appeal. 
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Judgment of Sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2016