Com. v. Marshall, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KHALIL MARSHALL :
:
Appellant : No. 1574 EDA 2020
Appeal from the Judgment of Sentence Entered March 23, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012768-2015
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED: MAY 24, 2021
Appellant, Khalil Marshall, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his jury trial conviction for aggravated assault.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
October 1, 2015, Officer Tyrone Bacon and his partner were on patrol when
they received a radio call that a man had been shot in the head on Rubicam
Street. Upon arriving at the address, Tashina Wright informed the officer that
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2702.
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Stanley Marshall (“Victim”)2 had been shot in the head and was upstairs being
treated by an emergency medical technician. Ms. Wright was visibly upset.
Ms. Wright told officers that Appellant and Victim had a verbal
altercation that became physical. During the fight, Appellant was either
thrown or knocked over the staircase banister. After Appellant fell over the
banister, Victim told him and Ms. Wright to leave the premises. Appellant
then repeatedly yelled that he was going to murder Victim. Victim returned
to the room where he had been previously watching television, but Appellant
continued to scream at and threaten him. Victim again told Appellant to leave,
at which time Appellant went into a bedroom and emerged with a gun. At
that time, Victim grabbed a baseball bat and again told Appellant to leave.
Ms. Wright attempted to step in between Appellant and Victim, but Appellant
pushed her aside and fired the gun; bullets struck Victim in the shoulder and
grazed the back of his head. Appellant left the residence with his girlfriend,
taking the gun with him.
Victim remained in the hospital for a month and a half and attended a
rehabilitation center for several weeks, followed by outpatient rehabilitation.
At the time of trial, Victim had twenty-five percent of the use of his right arm,
and suffered from post-traumatic stress disorder and depression.
On December 14, 2017, a jury found Appellant guilty of aggravated
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2 Ms. Wright is Appellant’s mother and Victim is Appellant’s father.
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assault. On March 23, 2018, the court sentenced Appellant to 6 to 12 years’
imprisonment, followed by 5 years’ probation. Appellant timely filed a post-
sentence motion on April 2, 2018, but did not file a direct appeal.
On July 28, 2020, the court reinstated Appellant’s direct appeal rights
nunc pro tunc. On August 11, 2020, Appellant timely filed a notice of appeal
nunc pro tunc. No Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal was ordered or filed.
On appeal, Appellant raises the following issues for our review:
Whether the trial court’s admission of the 911
recording/call, over Appellant’s objection, constituted an
abuse of discretion?
Whether the trial court abused its discretion in prohibiting
Appellant from introducing evidence related to the
complainant’s two robbery convictions?
Whether the guilty verdict as to the charge of aggravated
assault was against the weight of the evidence?
Whether the trial court improperly departed from the
sentencing guidelines and, as a result, the sentence was
unreasonable, constituting an abuse of discretion?
(Appellant’s Brief at 5).3
For purposes of disposition, we combine Appellant’s first and second
issues. In his first issue, Appellant argues the court erred by admitting the
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3 Regarding Appellant’s final issue challenging the discretionary aspects of
sentencing, Appellant admits in his brief that his sentence was “at the low end
of the standard range of the sentencing guidelines” and concedes that the
claim of error is without merit. (See id. at 20-21). Accordingly, we will not
examine this issue.
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911 call at trial under the business records exception to the rule against
hearsay. Appellant contends that the court further erred by stating in its
opinion that the call was admissible as a present sense impression, because
the declarant of the 911 call was unknown, so it was impossible to determine
whether the declarant was in position to observe the events as they were
happening.
In his second issue, Appellant maintains the court erred and abused its
discretion by refusing to admit evidence of Victim’s criminal history, namely,
two bank robberies from 1991 and 1996. Appellant contends that he argued
self-defense and that evidence of Victim’s trait of violence was important to
challenge Victim’s credibility. Appellant concludes the court’s evidentiary
rulings were improper, and this Court must grant appropriate relief. We
disagree.
Our standard of review of a trial court’s admission or exclusion of
evidence is well established and very narrow:
Admission of evidence is a matter within the sound
discretion of the trial court, and will not be reversed absent
a showing that the trial court clearly abused its discretion.
Not merely an error in judgment, an abuse of discretion
occurs 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 on record.
Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),
cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal
citations and quotation marks omitted). Further, our scope of review in cases
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where the trial court explains the basis for its evidentiary ruling is limited to
an examination of the stated reason. Commonwealth v. Stephens, 74 A.3d
1034, 1037 (Pa.Super. 2013). “We must also be mindful that a discretionary
ruling cannot be overturned simply because a reviewing court disagrees with
the trial court’s conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968
(Pa.Super. 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to This Article
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
(b) Declarant. “Declarant” means the person who
made statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
Pa.R.E. 801.
Pennsylvania Rule of Evidence 803 sets forth exceptions to the rule
against hearsay, in pertinent part, as follows:
Rule 803. Exceptions to the Rule Against Hearsay—
Regardless of Whether the Declarant Is Available as a
Witness
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
witness:
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(1) Present Sense Impression. A statement
describing or explaining an event or condition, made while
or immediately after the declarant perceived it. When the
declarant is unidentified, the proponent shall show by
independent corroborating evidence that the declarant
actually perceived the event or condition.
* * *
Pa.R.E. 803(1).
This Court has explained:
The present sense impression exception to the hearsay rule
permits testimony of declarations concerning conditions or
non-exciting events observed by the declarant.
Commonwealth v. Harper, [614 A.2d 1180, 1183
(Pa.Super. 1992)], appeal denied, 533 Pa. 649, 624 A.2d
109 (1993). The observation must be made at the time of
the event or so shortly thereafter that it is unlikely that the
declarant had the opportunity to form the purpose of
misstating his observation. Commonwealth v. Blackwell,
[494 A.2d 426, 431 (Pa.Super. 1985)]. In addition, the
present sense impression does not require that the
comments be made to another person also present at the
scene, but may be made over the telephone.
Commonwealth v. Harris, [658 A.2d 392, 395 (Pa.Super.
1995)].
In Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166(1999), our Supreme Court explained the following
regarding the interplay between the right to confrontation
of a witness and exceptions to the hearsay rule:
With respect to the confrontation issue, the United
States Supreme Court in Dutton v. Evans, 400 U.S.
74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), held that a
statement that came within an exception to the
hearsay rule would not violate the Confrontation
Clause if it had sufficient “indicia of reliability.”
Young, 748 A.2d at 177.
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Commonwealth v. Cunningham, 805 A.2d 566, 573 (Pa.Super. 2002).
Instantly, the trial court explained:
Here, the call at issue came in to police at or about the time
the incident occurred, which is plainly clear by its contents
which matched the observations of the police upon their
arrival and the testimony of the witnesses who testified at
trial. In [Commonwealth v. Hood, 872 A.2d 175(Pa.Super. 2005)], the defendant argued that the trial court
erred by permitting the Commonwealth to introduce into
evidence a 911 call the contents of which identified him as
the perpetrator of the crime he was convicted of committing.
The Superior Court ruled that the issue had no merit even
though the caller did not testify and thus, was not available
for cross-examination, because there were sufficient indicia
of reliability and the call was made almost
contemporaneously with the occurrence of the event
described by the caller. …
In [Cunningham, supra,] the Superior Court held that the
present sense exception “does not require that the
comments be made to another person also present at the
scene, but may be made over the telephone.” The Court
further stated that the present sense exception permits
testimony concerning “conditions or non-exciting events”
made “at the time of the event or shortly thereafter.” Id.In Cunningham, the defendant was convicted of two
counts of robbery and other offenses. Id. at 568. During
trial, the trial court permitted the jury to hear a 911 call
made by roofers who were working nearby and who had
seen the robbery as it was unfolding. Id. at 573. On
appeal, the defendant argued that the court abused its
discretion in admitting such evidence because it was
hearsay. Id. at 572. The trial court maintained, however,
that the roofers’ statements in the 911 call clearly
constituted a present sense impression given that they were
made via phone as the events were taking place. Id. at
573. The Superior Court agreed that the statements had an
inherent reliability and indeed fell within the present sense
impression exception to the rule against hearsay and found
that the trial court did not err by permitting the
Commonwealth to introduce the contents of the 911 call in
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evidence. Id.(Trial Court Opinion, filed September 2, 2020, at 9-10).
Here, the Commonwealth introduced an audio recording of a 911 call
made by an unidentified woman on a phone located at 271 Rubicam Street in
Philadelphia Pennsylvania at 11:35 p.m. (See Commonwealth’s Ex. 2). The
woman screamed that the victim had been shot and identified Appellant as
the shooter. (See id.) Officer Bacon testified that he arrived at that address
three minutes after the call to find a woman crying and that Victim had been
shot in the head. (See N.T. Trial, 12/12/17, 20-23, 31-32). Under these
circumstances, the verifiable date, time, and location of the 911 call, combined
with Officer Bacon’s testimony, provided sufficient corroborating evidence that
the statement had been made by a declarant actually witnessing the incident.
See Hood, supra. Thus, we see no reason to disrupt the court’s evidentiary
analysis.4 See Montalvo, supra; Stephens, supra.With regard to the impeachment of witnesses for prior offenses, this
Court has observed that
[f]or the purpose of attacking the credibility of any witness,
evidence that the witness has been convicted of a crime,
whether by verdict, or by plea of guilty or nolo contendere,
shall be admitted if it involved dishonesty or false
statement.” Pa.R.E. 609(a). “Crimes involving dishonesty
or false statement [are] commonly referred to as crimen
falsi crimes.” Commonwealth v. Moser, 999 A.2d 602,
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4 Based on our disposition that admission of the 911 call was proper as a
present sense impression, we decline to address whether admission of this
evidence was permitted under any other exception to the rule against hearsay.
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607 (Pa.Super. 2010). “[C]rimen falsi involves the element
of falsehood, and includes everything which has a tendency
to injuriously affect the administration of justice by the
introduction of falsehood and fraud.” Commonwealth v.
Jones, 334 Pa. 321, 323, 5 A.2d 804, 805 (1939).
Commonwealth v. Davis, 17 A.3d 390, 395 (Pa.Super. 2011). Additionally,
if the conviction is more than ten years old, it “is admissible only if…its
probative value substantially outweighs its prejudicial effect…and the
proponent gives an adverse party reasonable written notice of the intent to
use it so that the party has a fair opportunity to contest its use.” Pa.R.E.
609(b). Robbery is a crimen falsi offense. Commonwealth v. May, 587 Pa.
184, 202, 898 A.2d 559, 569 (2006).
Where self-defense is at issue, a defendant may use the criminal record
“to prove the allegedly violent propensities of the victim to show that the
victim was in fact the aggressor.” Commonwealth v. Amos, 445 Pa. 297,
303, 284 A.2d 48, 751 (1971). Nevertheless, “[o]nly those past crimes of the
victim that are similar in nature and not too distant in time will be deemed
probative, with the determination as to similar nature and remoteness resting
within the sound discretion of the trial judge.” Commonwealth v. Mouzon,
617 Pa. 527, 532, 53 A.3d 738, 741 (2012). Proximity in time and similarity
of facts are key; where “strikingly disparate factual scenario[s]” exist, the trial
court may properly exclude the convictions. Commonwealth v. Christine,
633 Pa. 389, 400, 125 A.3d 394, 400 (2015).
Instantly, the trial court stated:
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Here, Appellant did not establish that the probative value of
the evidence he sought to introduce exceeded the
prejudicial effect the evidence would have had on the jury.
In this [c]ourt’s view, the only reason the defense sought to
introduce the evidence pertaining to the two robbery
convictions was not to attack the credibility of [V]ictim but
to tell the jury that [Victim] had a history of violent criminal
conduct. Counsel said as much when he argued that
[V]ictim is “a man that is accused of someone shooting him
when the man that shot him is actually in self-defense. He
had a bat in his hand when he was attacking my client. He
threw my client over a railing.” It is clear from his argument
that counsel intended to use the prior convictions to show
[V]ictim had a violent temper and not primarily impeach his
credibility. The only reason counsel wished to introduce the
convictions was to smear the character of [V]ictim. This
was improper and no error occurred by precluding the
defense from introducing the two convictions. …
(Trial Court Opinion at 13) (internal citations omitted).
Here, Victim’s robbery convictions were from 1991 and 1996, well over
ten years prior to the incident at issue. Appellant provided no underlying facts
regarding the convictions to establish their similarities to the incident at issue.
See Christine, supra; Mouzon, supra. Additionally, Appellant did not
provide the Commonwealth written notice of his intent to impeach Victim’s
credibility. (See N.T. Trial 12/12/17, 4-6); Pa.R.E. 609(b). For all of these
reasons, we see no reason to disrupt the court’s evidentiary ruling. See
Montalvo, supra; Stephens, supra.In Appellant’s third issue, he argues that Victim initiated the physical
assault, and that testimony showed it was not physically possible for Victim
to have thrown Appellant over the bannister by accident. Appellant
emphasizes other evidence allegedly ignored by the jury, i.e., that Victim was
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larger than Appellant and had brandished a baseball bat during the struggle.
Appellant concludes the verdict was against the weight of the evidence, and
this Court must remand for a new trial. We disagree.
Preliminarily, a challenge to the weight of the evidence must be
preserved by a motion for a new trial. Pa.R.Crim.P. 607. The Rule provides:
Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of
the evidence shall be raised with the trial judge in a motion
for a new trial:
(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before sentencing;
or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A). “As noted in the comment to Rule 607, the purpose of
this rule is to make it clear that a challenge to the weight of the evidence must
be raised with the trial judge or it will be waived.” Commonwealth v.
Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal denied, 581 Pa. 672,
863 A.2d 1143 (2004) (internal quotation marks omitted). A defendant
cannot raise an issue for the first time on appeal; it must be preserved with a
timely and specific objection before the trial court. A boilerplate post-sentence
motion stating that the verdict was against the weight of the evidence does
not preserve an issue for appellate review unless it specifies in what manner
the verdict was against the weight of the evidence. Commonwealth v.
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Holmes, 461 A.2d 1268, 1270 (Pa.Super. 1983).
Instantly, Appellant failed to specify the reasons why the verdict was
against the weight of the evidence in his post-sentence motion. Therefore,
Appellant has waived his challenge to the weight of the evidence. See id.(See also Trial Court Opinion at 13-14) (suggesting waiver of weight claim
for failure to properly preserve it in post-sentence motion).
Moreover, even if Appellant had properly preserved his challenge to the
weight of the evidence, it would not warrant relief. When examining a
challenge to the weight of the evidence, our standard of review is as follows:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the…verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted). A “trial court’s denial of a motion for a new trial
based on a weight of the evidence claim is the least assailable of its rulings.”
Commonwealth v. Rivera, 603 Pa. 340, 363, 983 A.2d 1211, 1225 (2009),
cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 L.Ed.2d 1191 (2010).
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Here, the trial court observed:
The evidence showed that Appellant shot [V]ictim while
standing by his own estimation, ten feet from [V]ictim. He
recklessly fired four shots at [V]ictim with complete
disregard for the safety of [V]ictim and his mother who was
standing between the two men. Moreover, there was
evidence indicating that Appellant repeatedly stated that he
was going to murder [V]ictim thereby also manifesting his
intent to cause [V]ictim grievous bodily injury, if not death.
Finally, the jury clearly rejected Appellant’s claim of self-
defense, a decision supported by the evidence it heard.[5]
This [c]ourt sees no reason to reverse that credibility
determination even had Appellant properly raised this claim.
…
(Trial Court Opinion at 15). We agree with the court’s analysis. See
Champney, supra. Thus, even if Appellant had properly preserved his weight
claim, it would have merited no relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/21
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5 At trial, Victim denied striking Appellant with the baseball bat, and stated
that he was not moving toward Appellant when Appellant fired the gun at
Victim.
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