J-S56015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARAK WILLIAMS

Appellant No. 2266 MDA 2013

Appeal from the Judgment of Sentence February 1, 2011

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0001479-2009

BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED OCTOBER 31, 2014

Appellant, Darak Williams, beat a three-year-old child to death. He 

appeals nunc pro tunc from the judgment of sentence for first-degree 

murder entered February 1, 2011, by the Honorable Michael J. Barrasse, 

Court of Common Pleas of Lackawanna County. We affirm. 

On February 21, 2008, three-year-old K.S. (the “victim”), who 

appeared lifeless, and whose body exhibited signs of severe trauma, was 

taken to Community Medical Center by Williams and the victim’s mother, codefendant Kashema Reddish. The victim was pronounced dead shortly after 

her arrival. A subsequent autopsy attributed the cause of death to “multiple 

traumatic injuries,” specifically to the back of the head. After initially 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S56015-14

- 2 -

speaking with police, Williams and Reddish fled Lackawanna County, leaving 

Reddish’s son in the custody of Children and Youth Services. Williams and 

Reddish were later apprehended in Buffalo, New York, on March 8, 2009. 

Subsequent to his arrest, Williams was charged with Murder in the 

First Degree,1 Murder in the Third Degree,2and Endangering the Welfare of 

a Child.3 The third-degree murder charge was withdrawn prior to trial. 

Following a bench trial, on February 1, 2011, Williams was convicted of firstdegree murder and endangering the welfare of a child and sentenced to life 

imprisonment. On April 28, 2011, Williams filed an untimely Post Sentence 

Motion for Judgment of Acquittal, which the trial court denied following a 

hearing. With the aid of newly appointed counsel, this nunc pro tunc appeal 

followed. 

Preliminarily, we note that Williams has waived the challenges to the 

weight of the evidence he raises in issues two through five. “[A] weight of 

the evidence claim must be preserved either in a post-sentence motion, by a 

written motion before sentencing, or orally prior to sentencing.” 

Commonwealth v. Thomson, 93 A.3d 478, 490 (Pa. Super. 2014) (citing 

Pa.R.Crim.P. 607). Failure to do so will result in waiver of the claim on 

appeal. See id. 

____________________________________________

1 18 Pa.C.S.A. § 2502(a). 

2 18 Pa.C.S.A. § 2502(c). 

3 18 Pa.C.S.A. § 4304.
J-S56015-14

- 3 -

Williams failed to raise a challenge to the weight of the evidence to 

support his convictions either prior to sentencing or in his untimely postsentence motion filed April 28, 2011.4

 Therefore, we are precluded from 

reviewing these claims on appeal. 

The remaining issues Williams raises for our review are as follows:

1. Whether there was sufficient evidence to convict [Williams] 

since the Commonwealth was unable to establish that [Williams] 

had exclusive custody of the victim at the time the fatal injuries 

were inflicted thereby making him responsible for the killing 

and/or showing he had the specific intent to kill or acted with 

requisite malice needed for conviction of First Degree Murder 

and/or Third Degree Murder?

* * *

6. Whether the trial court committed an error of law and/or an 

abuse of discretion in refusing [Williams’s] request for new, 

private counsel made prior to trial after expressing his lack of 

confidence in current counsel?

____________________________________________

4 Williams’s untimely post-sentence motion requesting a judgment of 

acquittal raised a challenge to the sufficiency of the evidence to support his 

first-degree murder conviction. At the hearing held on the motion, the 

Commonwealth argued that the motion sounded more as a challenge to the 

weight of the evidence, rather than to the sufficiency of the evidence. See 

N.T., Hearing, 6/3/11 at 5-6. Although the Commonwealth noted that it did 

not object to arguing a challenge to the weight of the evidence, Williams did 

not alter his claim to include a weight of the evidence challenge either at the 

hearing or at any time thereafter. The trial court summarily dismissed the 

motion at the conclusion of the hearing. See id. at 11. We do not find the 

Commonwealth’s characterization of Williams’s argument sufficient to 

preserve these claims on Williams’s behalf. At any rate, even if Williams had 

raised a challenge to the weight of the evidence, the untimely nature of his 

post-sentence motion would still have rendered those claims waived. 
J-S56015-14

- 4 -

7. Whether the trial court committed an error of law and/or 

abuse of discretion in failing to issue a sua sponte declaration of 

mistrial on the false testimony provided by a key witness of the 

prosecution which ultimately had a substantial impact on the 

verdict?

8. Whether the trial judge committed an abuse of discretion in 

failing to [sua sponte] recuse himself from the non-jury trial 

even though he presided over all pre-trial motions of both 

[Williams] and his Co-Defendant, and accepted the guilty plea 

from Co-Defendant who ultimately testified against [Williams] at 

his non-jury trial?

Appellant’s Brief at 5-6. 

Williams first argues that the evidence was insufficient to support his 

conviction for murder in the first degree.5 We review a challenge to the 

sufficiency of the evidence as follows.

The standard we apply when 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 trier of fact while 

passing upon the credibility of witnesses and the weight of the 

____________________________________________

5 The charge of murder in the third degree was dropped prior to trial. 

Therefore, we limit our discussion to the sufficiency of the evidence as it 

relates to murder in the first degree.
J-S56015-14

- 5 -

evidence produced is free to believe all, part or none of the 

evidence. Furthermore, when reviewing a sufficiency claim, our 

Court is required to give the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence.

However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such volume 

and quality as to overcome the presumption of innocence and 

satisfy the jury of an accused’s guilt beyond a reasonable doubt. 

The trier of fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion will fail 

even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014) 

(citation omitted). 

“To obtain a first-degree murder conviction, the Commonwealth must 

demonstrate that a human being was unlawfully killed, the defendant 

perpetrated the killing, and that the defendant acted with malice and a 

specific intent to kill.” Commonwealth v. Burno, 94 A.3d 956, 969 (Pa., 

2014) (citation omitted). “The Commonwealth may use wholly circumstantial 

evidence to discharge its burden of showing the accused intentionally killed 

the victim ... and circumstantial evidence can itself be sufficient to prove any 

or every element of the crime....” Commonwealth v. Perez, 93 A.3d 829, 

841 (Pa. 2014). 

Williams first argues that the Commonwealth failed to establish that he 

perpetrated the killing. See Appellant’s Brief at 19. In order to prove that 

Williams was responsible for the victim’s death, the Commonwealth relied on 

the principle that where an adult has sole custody of a child for a period of 

time, and, during that time the child suffers wounds which unquestionably 

are neither self-inflicted nor accidental, the evidence is sufficient to allow a 
J-S56015-14

- 6 -

jury to infer that the adult inflicted the injuries. See Commonwealth v. 

Paquette, 301 A.2d 837, 840 (Pa. 1973). 

At trial, forensic pathologist Dr. Wayne Ross testified that the 

traumatic injury which caused the victim’s death likely occurred within two 

to three hours of the time when the victim arrived at the hospital at 4:07 

p.m. See N.T., Non-Jury Trial, 1/27/11 at 56-57. It is undisputed that at 

this point Williams had exclusive custody of the victim. However, Williams 

relies upon testimony regarding the victim’s body temperature when she 

arrived at the hospital to extrapolate that the injury could have occurred as

early as 7:00 a.m., when the victim’s mother was still at home and Williams 

therefore did not have exclusive custody of the victim. This argument is 

unavailing. We reiterate that the Commonwealth need not preclude every 

possibility of innocence. See Slocum. 

The trial court clearly resolved any conflicting evidence regarding the 

time period in which the fatal injury occurred in favor of the Commonwealth. 

Based upon Dr. Ross’s testimony, and viewing the evidence in the light most 

favorable to the Commonwealth as verdict winner, we find sufficient 

evidence existed that that the injury occurred when the victim was in 

Williams’s exclusive custody such that the court could properly infer that 

Williams inflicted the injuries. See Paquette. 

Williams’s argument that the evidence failed to show that he 

possessed the requisite specific intent to kill the victim is similarly without 

merit. “Specific intent to kill can be proven where the defendant knowingly 
J-S56015-14

- 7 -

applies deadly force to the person of another.” Commonwealth v. Stokes, 

78 A.3d 644, 650 (Pa. Super. 2013) (citation omitted). “The Commonwealth 

can prove this specific intent to kill from circumstantial evidence.” 

Commonwealth v. Tharp, 830 A.2d 519, 523-524 (Pa. 2003) (citation 

omitted). The trial court stated its reasons for finding Williams guilty of 

first-degree murder as follows:

First, the forensic pathologist as well as the emergency room 

physician testimony is clear and unequivocal that the injuries 

that were inflicted upon [the victim], specifically, the diffuse 

axonal injury in the pons area of the brain, was so severe that 

she could not live beyond hours after the injury was inflicted. 

There is not a scintilla of medical evidence to the contrary that 

these injuries could have occurred earlier. 

The record is equally clear and without conflict that [Williams] 

had exclusive custody of [the victim] during the time period in 

which the doctor’s [sic] testified that the fatal injuries occurred.

[Williams] has repeatedly indicated that he assumed parental 

guardian responsibility with regard to the victim that day. 

The question then in regard to first degree murder, the [c]ourt 

finds that the evidence was sufficient to show that [Williams’s] 

actions manifested a specific intent to kill given the brutality of 

the assault. A specific intent to kill is the state of mind which is 

a killing which is willful, deliberate and premeditated. Specific 

intent may be proven where the defendant knowingly applies 

deadly force to another person. 

* * *

If the deadly force is knowingly applied by the actor to the 

person of another, the intent to take a life is as evidence [as] if 

the actor stated the intent to kill at the time the force was 

applied. 

In addition, it’s based upon the number, type and severity of the 

victim’s injuries. In fact, I find sufficient evidence to find beyond 

a reasonable doubt that the defendant killed with malice.
J-S56015-14

- 8 -

The attack upon the brutal – the brutal assault upon the vital 

organs and the injuries that were the proximate cause of her 

death are clear by the testimony through the physicians and the 

experts. As importantly, the extensive physical injuries 

[Williams] inflicted upon the child, his cold hearted failure to 

timely seek medical assistance and the contrary explanations 

that he offered as to how the child sustained her injuries were 

sufficient to support the inference that [Williams] killed the 

victim intentionally, deliberately, and with premeditation.

N.T., Non-jury Trial, 2/1/2011 at 2-5. The record supports the trial court’s 

analysis. 

Dr. Ross testified that in addition to numerous healing bone fractures 

and existing injuries, he observed over 50 different areas of fresh injury to 

the child’s body, including fresh hemorrhages or bruises to the chest, back, 

buttocks, lower legs, face, lips, and jaw, consistent with repeated blunt force 

trauma. See N.T., Non-jury Trial, 1/27/11 at 12-19. Dr. Ross additionally 

testified the victim exhibited fresh abrasions and bruising to her neck, and 

that the mechanism of injury would be consistent with strangulation. See 

id. at 20-21. All of these injuries occurred within less than 24 hours. See 

id. at 12-21. Most significantly, Dr. Ross testified that the victim had 

suffered a fatal brain injury consistent with the application of extreme force 

somewhere around 12:30 to 1:30 p.m., when she was in Williams’s 

exclusive custody, and that the victim would never have regained 

consciousness after this injury. See id. at 51-57. 

Based upon the litany of traumatic injury inflicted upon vital parts of 

the child victim’s body – and the traumatic head injury inflicted by Williams 
J-S56015-14

- 9 -

in particular – we do not hesitate to find the evidence sufficient to suggest a 

specific intent to kill. 

Williams argues in his sixth issue raised on appeal that the trial court 

violated his constitutional right to counsel when it denied his request for a 

continuance to retain new private counsel. The decision to grant or deny a 

request for a continuance is within the sound discretion of the trial court. 

See Commonwealth v. Prysock, 872 A.2d 539, 541 (Pa. Super. 2009). A 

court’s decision to deny a request for a continuance

will be reversed only upon a showing of an abuse of discretion. 

As we have consistently stated, an abuse of discretion is not 

merely an error judgment. Rather, discretion is abused when the 

law is overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias, or ill-will, as shown by the evidence or the record.... 

Id. (internal citations and quotation marks omitted). 

Although the constitutional right to counsel guaranteed by both the 

Sixth Amendment to the United States Constitution and by Article I, Section 

9 of the Pennsylvania Constitution “entitle an accused to choose at his own 

cost and expense any lawyer he may desire,” this right is not absolute. Id. 

at 542 (citation omitted). 

Rather, the right of the accused to choose his own counsel, as 

well as the lawyer's right to choose his clients, must be weighed 

against and may be reasonably restricted by the state’s interest 

in the swift and efficient administration of criminal justice. Thus, 

this Court has explained that while defendants are entitled to 

choose their own counsel, they should not be permitted to 

unreasonably clog the machinery of justice or hamper and delay 

the state's efforts to effectively administer justice. 
J-S56015-14

- 10 -

Id. (internal quotes and citations omitted). 

On January 24, 2011, at the start of the second day of the bench trial, 

the trial court indicated it had received a pro se letter from Williams stating 

that he had paid for and retained new private counsel, and that he no longer 

wished to proceed with his current private counsel, Carlos Martir, Esquire. 

See N.T., Non-Jury Trial, 1/24/11 at 3. When colloquyed by the trial court, 

Williams was unable to state with any specificity in what manner he deemed 

counsel’s representation to have been deficient. Attorney Martir testified 

that he was willing and able to proceed with the trial without a continuance. 

See id. at 6-8. Further, Paul Walker, Esquire, the new private counsel 

Williams purportedly retained, testified that he had never met with Williams 

and had not been paid by Williams or a member of his family. See id. at 9. 

Attorney Walker testified that he had received a phone call indicating 

Williams’s interest in hiring his services but had not heard any more 

thereafter. See id. Attorney Walker further stated that he had not 

reviewed any evidence or discovery in the case, had not met with Williams 

or his family, and had no connection to the case. See id. at 10. 

In denying Williams’s request for a continuance to retain new private 

counsel, the trial court noted that it had previously permitted Williams’s 

appointed counsel to withdraw so that Williams could retain Attorney Martir. 

See id. at 15. The court further noted that Williams had never previously 

indicated any objection to Attorney Martir’s representation, that Attorney 

Martir was qualified and prepared to represent Williams at trial, and that the 
J-S56015-14

- 11 -

court found Williams’s request to be a bad faith dilatory tactic. See id. at 

16. 

We find no abuse of discretion. The “right to counsel does not give [a 

defendant] the right to delay the trial indefinitely because he is dissatisfied 

with competent counsel ... ready and willing to represent him.” 

Commonwealth v. Ingram, 591 A.2d 734, 738 (Pa. Super. 1991) (citation 

and internal quotation marks omitted). Given the wide latitude the trial 

court had already given Williams regarding his retention of qualified private 

counsel, and Williams’s failure to provide any substantial reason why his 

current counsel was deficient, we cannot find that the trial court abused its 

discretion in denying Williams a continuance in order to employ new private 

counsel. 

Williams next argues that the trial court erred by failing to sua sponte 

declare a mistrial based upon the allegedly false testimony of the victim’s 

mother at trial. See Appellant’s Brief at 44. Pennsylvania Rule of Criminal 

Procedure 605 provides that a trial court may declare a mistrial only for 

reasons of “manifest necessity.” Pa.R.Crim.P. 605(B). 

In criminal trials, declaration of a mistrial serves to 

eliminate the negative effect wrought upon a defendant 

when prejudicial elements are injected into the case or 

otherwise discovered at trial. By nullifying the tainted 

process of the former trial and allowing a new trial to 

convene, declaration of a mistrial serves not only the 

defendant's interest but, equally important, the public’s 

interest in fair trials designed to end in just judgments. 

Accordingly, the trial court is vested with discretion to 

grant a mistrial whenever the alleged prejudicial event 
J-S56015-14

- 12 -

may reasonably be said to deprive the defendant of a fair 

and impartial trial. In making its determination, the court 

must discern whether misconduct or prejudicial error 

actually occurred, and if so, ... assess the degree of any 

resulting prejudice. Our review of the resulting order is 

constrained to determining whether the court abused its 

discretion. Judicial discretion requires action in conformity 

with [the] law on facts and circumstances before the trial 

court after hearing and consideration. Consequently, the 

court abuses its discretion if, in resolving the issue for 

decision, it misapplies the law or exercises its discretion in 

a manner lacking reason.

Commonwealth v. Culver, 51 A.3d 866, 871 (Pa. Super. 2012) (citation 

omitted). 

At trial, the victim’s mother denied that the victim exhibited any 

injuries prior to the traumatic injury that caused the child’s death. Williams 

contends that this testimony was directly rebutted by Dr. Ross’s testimony 

that the victim’s body exhibited a history of chronic or healing injuries that 

precipitated the traumatic injury inflicted on February 21, 2008. See 

Appellant’s Brief at 47. Williams maintains that the Commonwealth’s failure 

to bring to light the alleged false testimony of its own witness amounts to 

prosecutorial misconduct such that a new trial is necessary. See id. at 48. 

Williams’s claim is a thinly veiled attack on a witness’s credibility, the 

determination of which “is within the sole province of the trier of fact who is 

free to believe all, part or none of the evidence.” Commonwealth v. 

Tielsch, 934 A.2d 81, 94 (Pa. Super. 2007) (citation omitted). It is 

unwarranted and impractical to insist that a trial court declare a mistrial 

whenever confronted with conflicting testimony. To do so would bring the 
J-S56015-14

- 13 -

judicial process to an utter standstill. Simply put, we cannot find that the 

mere existence of conflicting testimony in a criminal case constitutes 

manifest necessity such that a new trial is warranted. Therefore, the trial 

court did not abuse its discretion in failing to sua sponte declare a mistrial. 

Lastly, Williams argues that Judge Barrasse abused his discretion in 

failing to sua sponte recuse himself from the non-jury trial, after he 

accepted co-defendant Kashema Reddish’s guilty plea to involuntary 

manslaughter. See Appellant’s Brief at 49. “As a general rule, a motion for 

recusal must initially be directed to and decided by the jurist whose 

impartiality is being challenged.” Tharp, 830 A.2d at 534 (citation omitted). 

“Once a trial is complete with entry of a verdict or judgment, a party is 

deemed to have waived his right to have a judge disqualified unless he can 

meet the standard regarding after-acquired evidence, i.e. the evidence could 

not have been brought to the attention of the trial court in the exercise of 

due diligence and the existence of the evidence would have compelled a 

different result in the case.” Id. (citation omitted). 

Here, Williams admittedly did not raise a recusal motion in the court 

below. Moreover, he does not claim that his knowledge of the trial court’s 

participation in the co-defendant’s guilty plea proceedings constitutes afteracquired evidence that would have compelled a different result in the case. 

Accordingly, we are constrained to find that Williams has waived his right to 

seek the trial court’s recusal. See Tharp, supra.

Judgment of sentence affirmed. Jurisdiction relinquished. 
J-S56015-14

- 14 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/31/2014