Com. v. Stansbury, K. ( 2018 )

J-S10027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAREEM J. STANSBURY :
:
Appellant : No. 3479 EDA 2016
Appeal from the Judgment of Sentence October 26, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006484-2014,
CP-51-CR-0006485-2014
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 17, 2018
Appellant, Kareem J. Stansbury, appeals pro se from the judgment of
sentence entered on October 26, 2016.1 We affirm.
____________________________________________
1 Prior to trial, Appellant’s court-appointed counsel, Richard Giuliani, Esquire,
filed a petition to withdraw as counsel; within the petition, Attorney Giuliani
averred that Appellant “wishes to represent himself.” See Petition to
Withdraw, 12/9/14, at 2. As a result, on December 16, 2014, the trial court
entered an order, which took the petition to withdraw under advisement and
ordered a psychiatric evaluation to determine Appellant’s competency and
ability to represent himself. On January 16, 2015, the trial court held a
waiver of counsel hearing, where the trial court colloquied Appellant on his
request to proceed pro se. N.T. Waiver Colloquy, 1/16/15, at 1-18; see also
Pa.R.Crim.P. 121(A) and (C). At the conclusion of the hearing, the trial
court granted Appellant’s request to proceed pro se and appointed David
Simon, Esquire to be Appellant’s stand-by counsel. N.T. Waiver Colloquy,
1/16/15, at 8.
We note that Appellant has not requested that counsel represent him in this
appeal and he has, instead, continued his pro se representation. C.f.
Commonwealth v. Phillips, 141 A.3d 512, 521 (Pa. Super. 2016) (“once a
(Footnote Continued Next Page)
J-S10027-18
The trial court ably summarized the facts that underlie this appeal:
On February 23, 2014, Ms. Rachel Ostrow was living at [a
home on East Tioga Street, in Philadelphia. She lived] in a
residence she shared with a woman named Patricia
[Clarke], Ms. [Clarke’s] two children and, at times, a
woman names Luz Ambert-Prieto. That same day, all of
these individuals were at the residence[,] as was Abdul
Scott, Appellant’s step-brother.
At about 11:00 p.m., Ms. Ostrow was sitting on the porch of
the residence with Abdul Scott smoking “K2,” i.e. synthetic
marijuana, when Appellant drove up in a [four-door, dark-
colored] car with tinted windows. Appellant stopped the car
outside the residence, exited it, and began firing a
handgun[,] which he rested on the roof of the car. Ms.
Ostrow was struck in the back by bullet fragments as she
[and] Abdul Scott fled into the residence. Pressure was
applied to her wounds. As he tended to Ms. Ostrow, Abdul
Scott began apologizing to her because he said his brother
Kareem had shot her.
Ms. Ostrow was taken to a nearby hospital where her
injuries were treated. The next day, she gave police a
statement wherein she described the shooter as follows:
“Tall, black male, dark skin. He had a beard and mustache
and he was husky. He had on a black shirt?” At trial, Ms.
Ostrow could not identify the shooter, which she was also
unable to do at the scene. She also could not recall
whether or not she saw the shooter holding the gun, flashes
emanating from the gun, or if the shooter said anything
during the incident. However, she told police when she was
interviewed that she had witnessed those things and that
the shooter said, “Yo” or “Abdul.” In response to a question
by the prosecutor about the contents of her statement, Ms.
Ostrow averred that if she did tell the police about those
matters, she had spoken the truth.
(Footnote Continued) _______________________
defendant has made a competent waiver of counsel, that waiver remains in
effect through all subsequent proceedings in that case absent a substantial
change in circumstances”).
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J-S10027-18
Ms. Ambert-Prieto was on the porch just prior to the shots
being fired[,] smoking K2 with Ms. Ostrow. While Ms.
Ambert-Prieto was on the porch, Abdul Scott ran onto the
porch, sweating, out of breath[,] and [with rumpled
clothes]. Ms. Ambert-Prieto jokingly asked if he was
running from the police. Abdul Scott responded that he was
running from his brother Kareem. He then explained that
he and his brother had just had an argument. After he
arrived he also smoked some of the K2.
Ms. Ambert-Prieto went inside to get boots belonging to Ms.
Ostrow and when she did so, she heard two shots. She
immediately went outside and saw Abdul Scott tending to
Ms. Ostrow’s gunshot wounds as she lay on the porch.
Abdul Scott took Ms. Ostrow inside and, after putting her on
the couch, continued to tend to her wounds. Ms. [Clarke]
called 911. During the call, Abdul Scott and the other
people present began screaming, all of which was recorded
by the police dispatcher who answered the call. The
screaming included identifying the shooter as Kareem
Stansbury, Abdul Scott’s brother.
Police arrived and took Abdul Scott and Ms. Ambert-Prieto
to a police station where both of them were interviewed.
Ms. Ambert-Prieto identified a photograph of Appellant
during the interview. She admitted giving the police a false
address and explained that she did so because she did not
want [] the police to know she resided [at the East Tioga
Street home]. During Appellant’s questioning of Ms.
Ambert-Prieto, she [testified] that she saw Appellant armed
with a hand gun a few months prior to the incident.
At trial, Abdul Scott took the stand. He began his testimony
by noting that, although he had a half-brother named
Kareem Stansbury, he did not then see him in the
[courtroom]. He then testified that on the day of the
shooting, he and Kareem had argued inside his mother’s
house but that the argument did not involve violence. He
denied that it spilled into the street and stated that after it
broke up, he went to [the East Tioga Street house].
Abdul Scott testified that when he arrived at the residence,
Ms. Ostrow was on the porch and Ms. Ambert-Prieto was
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J-S10027-18
inside the residence. According to Abdul Scott, [Ms.
Ambert-Prieto] remained in the house the entire time.
While on the porch, Abdul Scott heard gunshots and saw
that Ms. Ostrow had been shot. He rendered aid to her and
took her inside the residence.
After Abdul Scott gave the foregoing testimony, he was
confronted by the prosecutor with the contents of a
statement he gave Philadelphia Police Detective Joseph
Newbert on February 24, 2014, approximately an [hour-
and-a-half] following the shooting. In his statement, Abdul
Scott admitted that he and [Appellant] had a fist-fight at his
residence [and] that it was broken up by his other brothers.
He further told police that after the fight broke up, he told
his brother Jabbar that he was going to [the East Tioga
Street house].
He further told police that he was sitting on the porch at
about 11:00 p.m., with Ms. Ostrow, when [Appellant] drove
down the street in a 1995 purple Chevy Cavalier registered
to his mother. He told police:
When he came down the street, he stopped right in front
of the house, got out and stood in the street and fired
his gun two times at me. The first shot missed, and the
second shot hit Rachel in the hip. Then Kareem jumped
back in his car and drove off towards Ella from Tioga.
Abdul told police that “Kareem” possessed a silver .22
caliber hand gun, that “Kareem” threatened to shoot him
earlier in the evening, and that he cursed at him during the
incident on Tioga Street when Ms. Ostrow was shot. Abdul
Scott ended the interview by identifying a photograph of
Appellant, who he called “Kareem”.
After giving his statement, [Abdul] Scott acknowledged that
the photograph he identified for police depicted Appellant.
He testified that Appellant did not shoot at him on the night
of the incident, and that he did not tell police that Appellant
had done so. He testified that he only told police that
Appellant was the brother with whom he was fighting earlier
in the evening.
-4-
J-S10027-18
After disavowing much of his statement, Abdul Scott denied
that the voice on the 911 tape, wherein the speaker named
“Kareem” as the shooter and described him, was his. He
ended his testimony by acknowledging that he was then in
custody awaiting sentencing in an unrelated matter.
On cross-examination, Abdul Scott denied anything that
could be considered incriminating with respect to Appellant.
He also testified that he was intoxicated on the night of the
incident and had smoked K2 while on the porch.
Philadelphia Police Officer Ricardo Rosa was on routine
patrol at 11:16 p.m., when [he responded] to the scene of
the shooting. Upon arrival, Abdul Scott exited [the East
Tioga Street house], ran to the officer, and urged him to
hurry because there was a shooting victim inside the
residence. The officer then encountered Ms. Ostrow, placed
her in his police vehicle, and drove her to a nearby hospital.
When the officer first encountered Abdul Scott, he was very
agitated and demonstrative. The officer testified that Abdul
Scott told him that his brother, Kareem Stansbury, had
driven up in a purple [two-door] Chevrolet and pointed a
gun at him, which he then fired at him. Abdul Scott gave
the officer a description of the shooter.
Patricia Clarke was inside the [East Tioga Street home]
when Ms. Ostrow was shot. She directed Ms. Ostrow, Ms.
Ambert-Prieto, and Abdul Scott to go outside after they said
they were going to smoke K2 inside the residence.
Approximately [15] minutes after they went outside, Ms.
Ambert-Prieto ran into the residence screaming that Ms.
Ostrow had been shot. After observing Abdul Scott treating
Ms. Ostrow, Ms. Clarke called 911. As she was on the
phone with a police dispatcher, Abdul Scott was yelling that
his brother, Kareem, who Ms. Clarke identified as Appellant
[], shot Ms. Ostrow. Ms. Clarke testified that the male’s
voice on the 911 recording identifying Appellant as the
shooter was that of Abdul Scott.
Ms. Clarke was taken to the police station where she was
interviewed. Ms. Clarke stated that she was completely
sober and lucid. She did not appear to be intoxicated
according to the officer who interviewed her.
-5-
J-S10027-18
Appellant presented evidence of alibi consisting of testimony
and documents he argues proved that he was at a minimart
located about [20] minutes from the scene of the shooting.
He also introduced evidence that he did not fight with his
half-brother Abdul Scott.
Trial Court Opinion, 6/26/17, at 2-7 (internal citations and footnotes
omitted).
On May 27, 2016, the jury found Appellant guilty of two counts of
attempted murder, three counts of aggravated assault, and one count each
of carrying firearms in public in Philadelphia and firearms not to be carried
without a license.2 N.T. Trial, 5/27/16, at 53-54. On October 26, 2016, the
trial court sentenced Appellant to serve an aggregate term of 35 to 70 years
in prison, followed by 7 years of probation, for his convictions. N.T.
Sentencing, 10/26/16, at 8-9.
Appellant filed a timely notice of appeal. He raises eight claims in his
brief:
[1.] Whether the [trial] court violated Appellant’s right to a
fair and impartial tribunal, secured by the 14th Amendment
to the United States Constitution, as well as [Article 1,
Section] 9 of the Pennsylvania Constitution when the trial
judge agreed to recuse himself and ten days later denied
the recusal request and tried the case[?]
[2.] Whether the suppression court erred by denying to
suppress Abdul Scott and Luz [Prieto] single photo arrays
identifications by relying on inadmissible hearsay
testimony?
____________________________________________
2 18 Pa.C.S.A. §§ 901(a), 2702(a), 6108, and 6106(a)(1), respectively.
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J-S10027-18
[3.] Whether the [trial] court erred by denying [] Appellant
funds to obtain expert witnesses to testify in support of
defense [theories]?
[4.] Whether [] Appellant’s trials commenced in violation of
the speedy trial clause?
[5.] Whether the [trial] court violated Appellant’s rights to
confront and cross-examine the witnesses against him,
secured by the 6th and 14th Amendment to the United States
Constitution, as well as Article 1[, Section] 9 of the
Pennsylvania Constitution, when the trial court over defense
objection allowed the Commonwealth to read into the
record Rachel Ostrow’s medical diagnosis without the
treating physician being available for cross-examination?
[6.] Whether the [trial] court violated [Appellant’s] right to
a fair and impartial trial, secured by the 14th Amendment to
the United States Constitution, as well as Article 1[,
Section] 9 of the Pennsylvania Constitution, when the trial
judge denied the jury’s request to deliberate with properly
admitted defense exhibits?
[7.] Whether the [trial] court violated [Appellant’s] right to
a fair and impartial trial, secured by the 14th Amendment to
the United States Constitution, as well as Article 1[,
Section] 9 of the Pennsylvania Constitution, when the trial
judge submitted to the jury the Commonwealth’s written
jury instructions on attempted murder, aggravated assault,
[and] violation of the uniform firearms act?
[8.] Whether the [trial] court erred in denying [] Appellant a
trial based on after discovered evidence?
Appellant’s Brief at 6-7 (some internal capitalization omitted).
We have reviewed Appellant’s brief,3 the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
____________________________________________
3 The Commonwealth did not file a brief in this case.
-7-
J-S10027-18
the Honorable Daniel D. McCaffery. We conclude that there has been no
error in this case and that Judge McCaffery’s opinion, entered on June 26,
2017, meticulously and accurately disposes of Appellant’s issues on appeal.
Therefore, we affirm on the basis of Judge McCaffery’s thorough opinion and
adopt it as our own. In any future filing with this or any other court
addressing this ruling, the filing party shall attach a copy of Judge
McCaffery’s opinion.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Bowes joins.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/18
-8-
Circulated 03/23/2018 01:28 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION-CRIIVÐNAL SECTION
COMMONWEALTH OF PENNSYLVANIA : PHILADELPHIA COURT
: OF COMMON PLEAS
..
: CRIMINAL TRIAL DIVISION
: CP-5r-CR-0006484-201¶
: CP-51-CR-0006485-201HVUN !'6 2011
Office of Judicial A�
AppealllPoet 'fflll
KAREEM STANSBURY FLED
OUN
OPINION
MCCRFFERY, J
Kareem Stansbury (hereinafter "Appellant") appeals from the order this Court entered on
October 26, 2016, imposing judgment of sentence. For the reasons set forth below, it is suggested
that the said order be affirmed.
PROCEDURAL HISTORY
In January, 2016, following the disposition of numerous pretrial motions, Appellant appëúed
befòre this Court and a jury for trial on charges of Attempted Murder, pursuant to 18
Pa.C.S. § 901 and 18 Pa.C.S. § 2501 (two counts ), Aggravated Assault, pursuant to 18 Pa.C,S. §
02(a)(.\)
(two counts), Possession of a Firearm Prohibited, pursuant to 18 Pa.C.S. § 6105,
Carrying a Firearm without a License, pursuant to 18 Pa.C.S. § 6106, and Carrying a Firearm on
a Public Street, 18 Pa.C.S. § 6108. At the conclusion ofthe trial, after the jury announced that it
was hopelessly deadlocked, this Court declared a mistrial.
Appellant's second trial commenced in May, 2016, again betOrc this_ Court_and a jury. On
: \Ill 111111\l\UIIU\I
·.. .. �
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····· -····
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-· . _./
May 27, 2016, Appellant was found guilty of all of the above-listed charges, I The Court deferred
sentencing until October 17, 2016, on which date Appellant received an aggregate sentence of
forty to eighty years' incarceration. Following the imposition of sentence, the Commonwealth
filed a Motion for Reconsideration of Sentence predicated on legal issues calling into question the
legality of some of the individual sentences imposed on Appellant, This Court granted the motion
and vacated Appellant's sentence. This Court then imposed an aggregate sentence of thirty-five to
seventy years' incarceration. Appellant thereafter filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) Statement of Matters wherein he raised twenty-seven separate issues.2
FACTUAL HISTORY
On February 23, 2014, Ms. Rachel Ostrow was living at 227 East Tioga Street in
Philadelphia, in a residence she shared with a woman named Patricia Clark, Ms. Clark's two
children and, at times, a Woman named Luz Ambert-Prieto. (N.T. 5/25/16, 50-51). That same
day, all of these individuals were at the residence as was Abdul Scott, Appellant's step-brother.
(N.T. 5/25/16, 51-52).
At about 11:00 p.m., Ms. Ostrow was sitting on the porch of the residence with Abdul
Scott smoking "K2 " i. e. , synthetic marijuana, when Appellant drove in a four door dark colorcd
car with tinted windows. (N.T. 5/25/16, 53-54, 69). Appellant stopped the car outsidc the
residence, exited it, and began firing a handgun which he rested on the roof of the car. (N.T.
5/25/16, 554-55, 81). Ms. Ostrow was struck in the back by bullet fragments as she ans Abdul
Scott fled into the residence. Pressure was applied to her wounds. (N.T. 5/25/16, 56; N.T.
2
The charge of Possession ofa FirearmProhibitcd was not presented to the jury for a verdict. instead, following the
[ecording of lht verdict with respect to the other charges,a stipulažcd trial wasTheld before this Court, which found
.2·
Appellant guilty of the weapons charge at the conclusion thereof. (N.T. 5/27/16, 58-59).
Appellantrepresented himselfat Iriakand is doing so on direct appeal.
5/26/16, 74)? As he tended to Ms, Ostrow, Abdul Scott began apologizing to her because he said
his brother Kareem had shot her. (N.T. 5/25/16, 56, 71).
Ms. Ostrow was taken to a nearby hospital where her injuries were treated. The next day,
she gave police a statement Wherein she described the shooter as follows: "Tall, black male,
dark skin. He had a beard and mustache and he was husky. He had on a black shirt"? . (N.T.
5/25/16, 65, 74). At trial, Ms. Ostrow could not identify the shooter, which she was also unable
to do at the scene. She also could not recall whether or not she saw the shooter holding the gun,
flashes emanating from the gun, or if the shooter said anything during the incident, However,
she told police when she was interviewed that she had witnessed those things and that the shooter
said, "Ÿo" or "Abdul." In response to a question by the prosecutor about the contents of her
statement, Ms. Ostrow averred that if she did tell the police about those matters, she had spoken
the truth. (N.T. 5/25/16, 66-68, 83).
Ms. Ambert-Prieto was on the porch just prior to the shots being fired smoking K2 with
Ms. Ostrow, (N,T. 5/25/16, Ill-1 12). While Ms, Ambert-Prieto was on the porch, Abdul Scott ran
onto the porch, (N.T. 5/25/16, 99) sweating, out of breath and his clothes were rumpled.
Ms. Ambert-Prieto jokingly asked if he was running from the police, (14). Abdul Scott
responded that he was running from his brother Kareem. He then explained that he and his brother
had just had an argument. After he arrived he also smoked some of the K-2. (N.T.
5/25/16, I l 5)
Ms. Ambert-Prieto went inside to get boots belonging 10 Ms. Ostrow and when she did
so, she heard two shots. (N.T. 5/25/16, 100-101). She immediately went outside and saw Abdul
3
3
Police received metal fragments from hospital personnel that had been removed from Ms.
Ostrow's body. (N.T. 5/26/16, 142-143). Although testing of them could not definitively
delennine that they wcrc once part of a bulleL, thc composition of the fragments was consistent
with that ofa bullet. (N.T. 5/26/16, 123-125).
Scott tending to Ms. Ostrow's gunshot wounds as she lay on the porch. (N.T. 5/25/16, 101). Abdul
Scott took Ms, Ostrow inside and, after putting her on the couch, continued to tend to her wounds,
(N.T. 5/25/16, 102). Ms. Clark called 911. During the call, Abdul Scott and the other people
present began screaming, all of which was recorded by the police dispatcher who answered the
call. (N.T. 5/25/16, 103-109). The screaming included identifying the shooter as
Kareem Stansbury, Abdul Scott'sbrother.
Police •arrived and took Abdul Scott and Ìv1s. Ambert-Prieto to a police station where
both of them were interviewed. Ms. Ambert-Prieto identified a photograph of Appellant during
the interview. (N.T. 5/25/16, 125). She admitted giving the police a false address and explained
that she did so because she did not want to the police to know she resided at 227 East Tioga Street.
(N.T. 5/25/16, 1 13). During Appellant's questioning of Ms. Ambert-Prieto, she stated that she
saw Appellant armed with a hand gun a few months prior to the incident. (N.T. 5/25/16, 133),
At trial, Abdul Scott took the stand. He began his testimony by noting that, although he
had a half-brother named Kareem Stansbury, he did not then see him in the court room. (N.T.
5/25116, 137-139, 150-151M He then testified that on the day of the shooting, he and Kareem
had argued inside his mother's house but that the argument did not involve violence. (N.T.
5/25/16, 141-143) He denied that it spilled into the street and stated •that after it broke up, he went
to 227 Easl Tioga Street. (N.T. 5/25/16, 143-144).
Abdul Scott testified that when he arrived at the residence, Ms. Ostrow was on the porch
and Ms. Ambert-Prieto was inside the residence. According to Abdul Scott, she remained in the
4
house the entire time. (N.T. 5/25/16, 145-147). While on the porch, Abdul Scott heard gunshots
and saw that Ms. Ostrow had been shot. (N.T. 5/25/16, 147-148). He rendered aid to her and
4
Duting appellant's first trial Abdul Scott also testified that he did not see his half-brother, who
stated was named Kareem Slansbury, in the court room. (N.T. 5/25/]6, 150).
took her inside the residence. (N.T. 5/25/16, 148-149),
After Abdul Scott gave the foregoing testimony, be was confronted by the prosecutor
with the contents of a statement he gave Philadelphia Police Detective Joseph Newbert on February
24, 2014, approximately an hour and one-half following the shooting' In his
statement, Abdul Scott admitted that he and Kareem had a fist-fight at his residence that it was
broken up by his other brothers. (N.T. 5/25/16, 160-161, 222-234). He further told police that
after the fight broke up, he toid his brother reabbar that he was going to 227 East Tioga Streetl
(N.T. 5/25/16, 160).
He further told police that he was sitting on the porch at about I l p.m., with Ms.
Ostrow, when his brother Kareem drove down the street in a 1995 purple Chevy Cavalier registered
to his mother. (N.T. 5/25/16, 163-164). 6 He told police:
When he came down the street, he stopped right in front of the
house, got out and stood in the street and fired his gun two times at
me. The first shot missed, and the second shot hit Rachel in the hip.
Then Kareem jumped back in his car and drove off towards Ella
from Tioga.
N.T. 5/25/16, 165.
Abdul Scott told police that "Kareenp possessed a silver .22 caliber hand gun, that
"Kareem" threatened to shoot him earlier in the evening, and that he cursed at him during the
incident on Tioga Street when Ms. Ostrow was shot. (N.T. 5/25/16, 166-168). Abdul Scott ended
the interview by identifying a photograph of Appellant, who he catlcd "Kareem". (N.T.
5
5/25/16, 168-169).
After giving his statement, Scott acknowledged that the photograph he identified tor
5
Abdul Scott disavowed everything in that statement that inculpated Appellant in the shooting of
Ms. Ostrow.
6
Police investigation later confirmed that a purple Chevy Cavalier was registered to Appellant's
mother, Pamela Stansbury. (N.T. 5/26/16, 76),
police depicted Appellant. He testified that Appellant did not shoot at him on the night of the
incident, and that he did not tell police that Appellant had done so. (N.T. 5/25/16, 169). He
testified that he only told police that Appellant was the brother with whom he was fighting earlier
in the evening, (IÀ).
After disavowing much of his statement, Abdul Scott denied that the voice on the 911
tape, wherein thc speaker named "Kareem" as the shooter and described him, was his. (N.T.
5/25/16, i 71-173). He ended his testimony by acknowledging that he was then in custodÿ
awaiting sentencing in an unrelated matter. (N.T. 5/25/16, 178-179),
On cross-examination, Abdul Scott denied anything that could be considered
incriminating with respect to Appellant. He also testified that he was intoxicated on the night of
the incident and had smoked K.2 while on the porch. (N.T. 5/25/16, 188-189).
Philadelphia Police Officer Ricardo Rosa was on routine patrol at 11:16 p.m., when he
was responded to police radio to the scene of the shooting, (N.T. 5/25/16, 203-204) Upon arrival,
Abdul Scott exited 227 East Tioga Street, ran to the officer, and urged him to hurry because there
was a shooting victim inside the residence. (N.T. 5/25/16, 206-207). The officer then encountered
Ms. Ostrow, placed her in his police vehicle, and drove her to a nearby hospital.
When the officer first encountered Abdul Scott, he was very agitated and demonstrative.
6
(N.T. 5/25/16, 201). The officcr testified that Abdul Scott told him that his brother, Kareem
Stansbury, had driven up in a pumle two door Chevrolet and pointed a gun at him, which he then
fired at him. (N.T. 5/25/16, 210-211). Abdul Scott gave the officer a description of the shooter.
(NT- 5/25/16, 213).
Patricia Clarke was inside 227 East Tioga Street when Ms. Ostrow was shot. (N.T. 5/26/16, 10).
She directed Ms, Ostrow, Ms. Ambert-PrietO, and Abdul Scott to go outside after they said they
were going to smoke K2 inside the residence. (N.T. 5/26/16, 10). Approximately fifteen minutes
after they went outside, Ms. Ambert„Prieto ran into the residence screaming that Ms. Ostrow
had been shot. (N.T. 5/26/16, 10). After observing Abdul Scott treating Ms. Ostrow, Ms. Clarke
called 911, (N.T. 5/26/16, 10-12). As she was on the phone with a police dispatcher, Abdul
Scott was yelling that his brother, Kareem, who Ms. Clarke identified as Appellant herein, shot
Ms. OŠtrow. (N.T. 5/26/16, 14-16). 7 Mg. Clarke testified that the male's voice on the 911
recording identifying Appellant as the shooter was that of Abdul Scott. (N.T. 5/26/16, 6).
Ms. Clarke was taken to a police station where she was interviewed. Ms. Clarke stated that
she was completely sober and lucid. She did not appear to be intoxicated according to the officer
who interviewed her. (N.T. 5/26/16, 134),
Appellant presented evidence of alibi consisting Of testimony and documents he argues
proved that he was at a located about twenty minutes from the scene of the shooting.
He also introduced evidence that he did not fight with his half-brother Abdul Scott.
DISCUSSION
In his se 1925(b) staternent; Appellant raises 27 discrete claims. With regard to many of
those claims, Appellant fails to idcnti19 the place in Lhc record where the alleged error appcars
and/or concisely state his claim in a manner discernible to this Court. As a consequence thereof,
7
this Court respcctfully submits that Appellant waived appellate review of many of these claims.
Pa.R.A.P 1925 mandates that an appellant "concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent issues." Pa.R.A.P.
'I Duringher testimony, the prosecutor played a recordingofthe 91 1 call Ms. Clarke made and she identified the only
ale voice on it as that of Abdul Scott. (N.T- 5/26/16, 16).
1925(b)(4)(ii). Furthermore, Rule 1925th) precludes a defendant from filing a protracted 1925(b)
statement or brief and expect this Court to mine the issues from a rambling argument.
BeeCommonwealth v, Allshouse, 969 A.2d 1236, 1239 (Pa, Super, 2009). ("When a court has to
guess what issues an appellant is appealing, that is not enough for meaningful review,"). The law
requires that a defendant assert claims with Specificity, S_gg ·canunonwealth v . .Berry, 877 A.2d
479, 485 (Pa. Super. 2005) ("issues that are not supported by citations to the record and to pertinent
legal authority are waived?'); Allshouse, 969 A.2d at 1239 ("When an appellant fails adequately
to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those issues."), Finally, simply because
Appellant chose to represent himself does not immunize him from the foregoing principles of law.
Commonwealth v. Adams, 882 A.2ð 496, 498 (Pa.Super. 2005). "To the contrary, any person
choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his
lack of expertise and legal training will be his undoing."
Despite Appellant's failure to comply with the dictates of Rule 1925, this Court will
endeavor, as best as it can, to address the claimed errors.
In his first two claims, Appellant argues that it was error to deny two pre-trial motions, the
first of which sought to dismiss the charges filed against Appellant following his prehrninarÿ
hearing. The second motion was a combined Writ of Habeas Corpus and Motion to Quash the
Transcript. In both motions Appellant argued that he was dcnied due process and the right to
8
confront witnesses against him because the Commonwealth solely relied on hearsay testimony al
his preliminary hearing.
Relief should be denied on these claims because the law is clear. Errors occuning during a
preliminary hearing are not cognizable fallowing a conviction. Commonwealth v. Jacobs, 640
A.2d 1326, 1330 (Pa. Super. 1994) ("It is well settled that once a defendant has gone to trial and
been found guilty of a crime, any defect in the preliminary hearing is rendered immaterial.")
(Citations and internal quotation marks omitted). Accordingly, because the jury found Appellant
guilty, relief cannot be obtained on Appellant's first two issues and it is suggested that they be
deemed lacking in merit.
In his third claim, Appellant contends that this Court committed error by denying his
motion {o Suppress the photographic identifications made by Abdul Scott and Mg. Ambert-Priet0
because the identifications were made under unduly suggestive circumstances. Specifically,
Appellant asserts that his motion to suppress should have been granted because they were both
shown a single photograph of Appellant and then asked if it depicted Appellant. (N,T, 4/23/16,
4-10). It is suggested that relief be denied on this claim because both witnesses knew Appellant
prior to their identification sessions. 8
"When reviewing an order denying suppression, this Court must review the record in the
Eight most favorable to the Commonwealth, as verdict winner, and determine whether the trial
court's factual findings are supported by the record." Commonwealth v. Rickabaugh, 706 A.2d
826, 832 (Pa, Super. 1997). As long as "there is support in the record for the court's factual
findings, this Court will not reverse the order denying suppression unless the legal conclusions
drawn from those facts are in error." Id. at 832-33. In conducting this review, this Court "may
9
consider only the evidence of the prosecution and so much of the evidence for the defense as
remains uncontradited when rcad in the context of the record as a whole." Commonwealth v.
Moye, 836 A.'2d 973, 976 (Pa. Super. 2003).
E
This Courl made Findings oNG act and rcached Conclusions ol- Law tOIIowing the suppression hearings. (N.T.
4/23/15, 49-53). They¼lre incorporated in herein„ It is noted that with regard to Ms. Ambert-Prieto, this Court
indicated that her identification of the depicting: Appellant way not suppressed because she did not witness the
shooting and would u10t identify him as the shooter at trial.
"In reviewing the propriety of identification evidence, the central inquiry is whether,
under the totality of the circumstances, the identification was reliable." McElrath v.
Cqmmonwealth, 592 A.2d 740, 742 (Pa. super. 1991). A pre-trial identification is not suppressible
unless "the identification procedure was so infected by suggestiveness as to give rise to a
substantial likelihood of irreparable misidentification." Commonwealth v. Sample, 468
A.2d 799, 801 (Pa. Super. 1983) (quotation marks and citations omitted). Finally, the law is clear
that the showing of a $inglc photograph does not necessarily render an identification unreliable.
. Commonwealth v. Buehl;
508 A.2d 1167, 1178 (pa. 1986).
A review of the totality of circumstances in this matter establishes the reliability of the
identifications. Both witnesses knew Appellant prior to the shooting. Abdul Scott is Appellant'S
half-brother. Ms. Ambert-Prietto is an acquaintance who knew Appellant prior to the incident,
Thus, the use of a single photograph during the identification sessions does not render the
identifications unreliable. See Commonwealth v: _ Johnson, 139 A.3d 1257, 1278-79 (Pa. 2016)
(showing of a single photograph to a witness was not unduly suggestive because the witness "had
known the defendant for a nurnber of years prior to the incident"); Commonwealth v. Jones, 426
A.2d 1167, 1170-71 (Pa. Super. 1981) (identification by single photograph admissible based on
"facts that the Witness k.ncw the Appellant prior to the robbery, viewed him at close range during
10
the incident, and identified him by name to police prior to seeing the single photo"). Accordingly,
for the foregoing reasons. Appellant's claim with regard to this issue should be rejected.
Appellant's fourth issue contains three independent claims. First, he argues that this Court
erred by denying his Motion in Limine to bar the admission of a recording of the 911 call because
it was inadmissible hearsay. Next, he contends that it was error for the Court to preclude Abdul
Scott, Rachel Ostrow, Luz Ambert-Prieto, and Patricia Clarke from testifying pursuant to
commonwealth v. Pazemore, 614 A.2d 684 (Pa. 1992), because the Commonwealth did not
provide hint With the witnesses' statements prior to the preliminary hearing thereby depriving
him of a Fall and fair opportunity to cross-examine the witnesses during the preliminary hearing.
Finally, Appellant argues that the Court erred by overruling an objection to the Commonwealth's
admission, in rebuttal, of his prior 2005 conviction for robbery in federal court. (N.T. 5/26/16,
217, 222). It is suggested that none Of these claims entitle Appellant to any relief.
Evidentiary rulings are committed to the sound discretion of the trial court and will not be
reversed unless a clear abuse of discretion is demonstrated. 612 Commonwealth y. A.2d 1349
(Pa. 1992). "An abuse of discretion is more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill Will."
Commonwealth v. He", 745 A.2d 29, 31 (Pa, Supers 2000); Foy, supra (Pa. 1992). In addition,
the trial court is required to balance the Commonwealth's need for the evidence in question with
any prejudice arising therefrom. See Commonwealth v. Jones, 658 A.2d 746, 751
(Pa. 1995) (citing Commonwealth v. Yates, 613 A.2d 542, 543 (Pa. 1992))." Commonwealth v.
Montalvo 986 A.2d 84, 95 (Pa. 2009). Finally, "for a ruling on evidence to constitute reversible
error, it must have been harmful or prejudicial to the complaining party. A party suffers prejudice
1-1
11
when the trial court's error could have affected the verdict." Commonwealth v- Tyack, 128 A.3d
254, 257 (Pa.Super. 2015) (citation omitted).
Appellant first argues that thc 911 rccording should not have been admitted in evidence
because the caller (Ms. Clarke) had not witnessed the shooting. Thus, whatever she said during
the call about the person responsible for the shooting was inadmissible hearsay, The tape of the
call was played to the jury for the purpose of allowing the jury to hear what Abdul Scott said
during the call.
No error was committed by permitting the jury to hear the recording of the 911 call because
while the remarks were technically hearsay they were admissible pursuant to exceptions
to the hearsay rule. Abdul's remarks during the 911 call constituted excited utterances and Ms.
Clarke's statements were present sense impressions. Thus exceptions to the hearsay rule.
It is hornbook law that hearsay, an out-of-court statement offered to prove the truth of the matter
asserted, is inadmissible except as provided by the Pennsylvania Rules of Evidence. Pa.
R.E. 801(c), 802, Abdul Scott's comments were admissible excited utterances, which are "[al
statement relating to a startling event or condition made while the declarant was under the stress
or excitement caused by the event or condition." Pa. R.E. 803(2), Our Supreme Court has
defined an "excited utterance" as follows:
[AJ spontaneous declaration by a person whose mind has
been suddenly made subject to an overpowering emotion
caused by some unexpected and shocking occurrence,
which that person has just participated in or closely
witnessed, and made in reference to some phase of that
occurrence which he perceived, and this declaration must
be made so near the occurrence both in time and place as to
exclude the likelihood of its having emanated in whole or
in part from its reflective faculties.... Thus, it must be shown
12
first, that [the declarant] had witnessed an event sufficiently
startling and so close in point of time as to render her
reflective thought processes inoperable and, second, that
her declarations were a spontaneous reaction to that
startling event.
Commonwealth v. Stallworth, 781 A.2d 1 10, 119-120 (Pa. 2001); Commonwealth v. Stokes,
615
A.2d 704, 712 (Pa. 1992); Commonwealth v. Green, 409 A.2d 371, 373-374 (Pa. 1979). The
determination of whether an utterance qualifies under this exception is made on a case-by-casc
basis. Commonwealth v. Blackwell, 494 A.2d 426, 430-431 (Pa. Super. 1985). "The crucial
question, regardless of time lapse, is whether, at the time the statement is made, the nervous
excitement continues to dominate while the reflective processes remain in abeyance."
Common.yglth-yž-gxay, 867 A.2d 560, 570-571 (Pa. super. 2005), appeal denied, 879 A.2d 781(Pa. 2005) (citing �onwealth v. Cannady. 799 A.2d 143, 147 (Pa. super. 2002)).
Instantly, the record clearly demonstrates the existence of a "startling event" witnessed by
Abdul Scott. Appellant, his half-brother, drove up, exiting a car, fired shots striking Ms.
Ostrow, and his frantic efforts to Stop the bleeding- All of these facts manifest that at the time he
made the remarks, Scott was witnessing startling events, Commonwealth v. Gray, 867 A.2d 560,
571 (Pa. Super. 2005) (Witnessing an assault is a startling event), and that he was still exhibiting
nervous excitement and emotional stress precipitated by Appellant'$ action, which were still
ongoing during the call Finally, the 911 call was made within minutes of the incident thereby
demonstrating that Scott's statements were made without the opportunity for conscious
deliberation or reflective thought processes. Given the foregoing, it is clear that there was no error
in permitting the Commonwealth to introduce the recording of the 911 call with respect to Abdul's
Scott's remarks during the call. See Commonwealth v. Rolan, 964 A.2d at 411-12 (911
call that was made contemporaneously with shooting and that reported that somcone had been
13
shot and that a man with a rifle wag seen entering an abandoned building was admissible under
the excited utterance exception to the hearsay rule).1
Regarding the comments made by Ms. Clarke, they were admissible under the present sense
impression exception to the hearsay rule. A present sense impression is a statement
describing "an event or condition," that is made while the declarant is perceiving the event, or
immediately thereafter. Pa,R.E, 803(1); Commonwealth Cunningham, 805 A,2d 566, 572 (Pa.
Super. 2002), "The trustworthiness of such remarks does not depend upon whether the declarant
is excited or is emotionally affected by the event." :2trunot1wealth v. Gray·, 867 A.2d 560, 571
(Pa- Super. 2005). Rather, a present sense impression is trustworthy because it is made so close
in time to the event that "it is unlikely that the declarant had the opportunity to form the purpose
of misstating his observation." Id.Ms. Clarke's statements clearly satisfy those requirements. Ms. Clarke was merely
repeating contemporaneously what Abdul Scott was saying. This was entirely proper. See
Commonwealth v. Harris, 658 A.2d 392, 394 (Pa. Super. 1995) (murder victim's statement
identifying Harris was admissible as present sense impression where it a "contemporaneous
: Commonw
1
Even ifthe recording was admitted erroneously, the error was harmless because thercover,
Commonwealth
as.no introduced
!. 722A,.2d.
other evidence mirroring what Scott was heard saying on the tape ot• the 911 call. Moreover, as moted above; Scott
testified at trial and was subjectto cross-examination. See Commonwealth v. Romerozhere the im1014, 1019 (Pa.)
722 A.2d
cert,information
guilt), the
(harmless error,to admit statements which violated appellant's' confrontation rights where .c in thc
statements was cumulative or properly admitted evidence that established defendant's guilt), cert. denied, 528 ILS.
952 (1999).
14
verbalization of her observation" of him outside her door). Accordingly, Appellant's first subissue
should be rejected.
Appellant's second sub-issue that the witnesses should have been precluded from
testifying should be ruled lacking in merit for several reasons, First, the claim should be rejected
because it involves error cornmitted during Appellant's prcliminary hearing. As noted above, such
errors are do not entitlc a defendant to relief when raised post conviction.
The claim also should be rejected because the holding of the Bazemore case does not apply
here. In Bazemore, the Supreme Court held that in order to introduce the prior testimony of an
unavailable witness, the opposing party had to have had a full and fair opportunity to crossexamine
the witness during the prior hearing. Bazemore 614 A.2d at 686. See also Commonwealth v,
Paddy, 800 A.2d 294, 312 (Pa. 2002); Commonwealth v. Chmiel, 738 A.2d
406, 416 (Pa. 1999), cert. denied 528 U.S. 1 131 (2000). Instantly, each of the persons named by
Appellant were available for trial and each of them testified. Thereforei Appellant's motion lacked
legal support and was properly denied.
Finally, it is submitted that this Court did not err by permitting the Commonwealth to
introduce evidence that Appellant had a prior robbery conviction. It is within the trial court's
sound discretion to determine whether evidence of a defendant's prior convictions can be admitted
for the purpose of impeaching his credibility, and this decision will not be disturbed
absent an abuse of that discretion. Commonwealth v. McEnany. 732 A.2d 1263, 1269 (Pa.Snper.
1999).
No abuse of discretion occurred because the evidence of Appellant's prior robbery
conviction was admissible pursuant to Pa.R.E. 609 and Commonwealth v. Randall, 528 A.2d
1326 (Pa. 1987). Rule 609 provides, in pertinent part:
15
Rule 609. Impeachment by Evidence of a Criminal Conviction
(á) In General. For 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, must be admitted
if it involved dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have
passed sincc the witness's conviction or release from
confinement for it, whichever is later. Evidence Of the
conviction is admissible only if:
(1) its probative valuc substantially outwcighs its prejudicial
effect; and
(2) thc proponent gives an adverse party reasonable
written notice of the intent to use it so thal t11C party
has a fair opportunity to contest its use.
In Randall, at 528 A.2d 1329, the Pennsylvania Supreme Court held that "evidence of prior
convictions can be introduced for the purpose of impeaching the credibility of a witness if the
conviction was for an ollënse involving dishonesty or false statement, and the date of the
conviction or the last day of confinement is within ten years of the trial date." (Emphasis added).
Thus, the Court's rule extends not only ten years from the date of conviction for the offense, but
also ten years from the last day Of cotffinement for the offense.
In the instant matter, Appellant's prior conviction for robbery is recognized as a crime
involving dishonesty. McEnany., 732 A.2d at 1270 n.3, 1271. Although appellant was convicted
of that offense in 2005, he received a sentence of thirty months' imprisonment. Thus, his
incarceration was within was within ten years of thc commencement of the trial in the present
case. f3ecause the conditions set forth in Rule 609 and Randall were met, Appellant's prior
conviction was per se admissible to impeach his credibility once he testified. MgEnany, 732
A.2d at 1271 (where "date of appellant's second trial...was within the adjusted ten years of his
1986 conviction, it was per se admissible to impeach [his] credibility at his trial on remand").
Accordingly, Appellant's third sub claim of his fourth issue should not result in the grant of
16
relief.
Fifth, Appellant accuses this Court of committing an abuse of discretion by denying his
request for funds to hire an expert for the purpose of introducing testimony that the use of K.2
affects memory and causes hallucinations. It is well-recognized that indigent dcfcndants have a
right to access to the same resources as- non-indigent defendants, and the state must ensure the
indigent defendant's fair opportunity to present a defense through competent evidence.
Commonwealth v, Cumutte, 871 A.2d 839, 842 (Pa. Super- 2005), citing Commonwealth v.
Franklin 823 A.2d 906, 909 (Pa- super. 2003), and Akc v. Oklahoma, 470 U.S. 68, 76 (1985).
However, "the Commonwealth is not obligated to pay for the services of an expert simply because
a defendant requests one." Id. Rather, the decision to providc public funds to hire defense experts
in a criminal matter is vested within the trial court's sound discretion and its denial of fimding
will not be reversed absent an abuse of that discretion. Commonwealth v. Cannon, 954 Aid 1222,
1226 (Pa. super. 2008), denied, 964 A,2d 893 (Pa. 2009).
Instantly, the record shows that Appellant initially sought funds for several different
experts, including a serologist and "someone" who could explain the effects of K-2 on a person
based on statements the witnesses gave wherein they indicated that they had been smoking K2
immediately ptior to the incident. Appellant argued that he needed many expert witneses in
addition to one to explain the effects of K2. One of the other experts Appellant sought was a
serologist, for lack of a more appropriate term, who he wanted to retain to test blood at the scene
and on the clothing collected by the police to ascertain the amount, if any, of drugs in the blood.
(N.T. 4/13/15, 35-37, 52-53). Appellant argued that once the blood was tested, the serologist
could ascertain the amount of dillgs the person from whom the blood originated. OI.T. 4/13/15,
35-37, 52-53). Appellant then argued that once the serologist determined the level of drugs in the
17
blood itself, the expert could explain the effects of any drugs detected would have on a person's
psyche and memory and could testify regarding those effects using the serologists findings. (N.T.
4/13/15, 52-53).
Following the grant of the mistrial, Appellant renewed his request for fruids for an expert
who could testify to the effects of VO. It was Appellant's opinion that said expert was needed to
review medical and toxicofogy reports, ascertain that drugs were in a person's system and the
amount thereof, and testitÿ to the effects the amount of drugs would have had on the person. (N.T.
4/26/16, 4-8). He further argued that he needed an expert to inform the jury of the effects K2 has
on an individual. Id.This Coult did not commit an abuse of discretion by denying Appellant's two requests for
an expert. Assuming that a serologist or some other expert could not only delect but then deterrnine
the amount of drugs in a dried blood sample, Appellant failed to establish the relevance and
materiality of the information he claimed the experts could provide The evidence herein indicated
that the only person who left blood at the scene was Ms. Ostrow, the shooting victim. Ostrow did
not identify Appellant as the person who fired the shots. Therefore, the issue whether she had drugs
in her system, the amount thereof, and the effect they may have had on her had no relevance. There
is no constitutional mandate that an expert be appointed at public expense to assist in the
preparation of a defense. �ommonweahhv. Bell, 706 A.2d 855> 862 (Pa. Super. 1998). In Bell the
further stated that as a general rule "the trial court will not be found to have abused its discretion
[in denying funding for an expert witness] in the absence of a clear showing as to the content,
relevancy and materiality of the testimony of the potential Witness," Id.18
Appellant's second request was properly denied because he failed to present any evidence
that the witnesses, who admitted smoking K2 were even under the influence of it when they made
their observations or evidence showing that the ingestion of even a small amount of would
affect one's ability to perceive and remember. Moreover, the evidence presented during the trial
showed that none of the witnesses who were present when the crime occurred manifested any
outward symptoms indicating that they were under the effects of an intoxicant immediately after
the incident to a degree rendering them incapable of recalling the events they observed. Thus, the
testimony of an expert about the effects ofK2 would have been irrelevant and would have merely
tended to confusc the jury and also prejudice the Commonwealth. In addition, this type of
testimony under these circumstances would have been entirely speculative. Accordingly, for the
fOregoing reasons, the denial of Appellant's two requests for funds for the experts described above
was not error and it is suggested that said decision be affinnecl on appeal.
Appellant's sixth claim is that it was error to deny his Pa.R.Crim.P. 600 motion to
dismiss, which he included in an omnibus pre-trial motion filed prior to the commencement of his
second trial. A review of the record indicates that no Rule 600 bearing was requested by Appellant
and none was held. For this reason alone, Appellant's claim should be deemed lacking
in merit. If it is not deemed to have been waived, no relief should be forthcoming because a
violation of Rule 600 did not occur here,
Rulc 600 Orovides in pertinent part:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial;
(I) For the purpose of this tille, trial shall be
deemed to commence on the date the trial judge calls
the case to trial, or the defendant tenders a plea of
guilty or nolo contendere,
19
(2) Trial shall commence within the following time
periods.
(a) Trial in a court case in which a written
complaint is filed against the defendant shall
commence within 365 days from the date on
which the complaint is filed.
(b) Trial in a court case that is transferred
from the juvenile court to the trial or criminal division
shall commence within 365 days from the date on
which the transfer order is filed.
(c) When a trial court has ordered that a
defendant's participation in the ARD program be
terminated pursuant to Rule 318, trial shall commence
within 365 days from the date on which the
termination order is filed.
(d) When a trial court has granted new trial
and no appeal has been perfected, the new trial shall
commcncc within 365 days from the date on which
the trial court's order is filed.
(e) When an appellatc court has remanded
a case to the trial court, the new trial shall commence
within 365 days from the date of the qn•itten notice
from the appellate court to the palties that the record
was remanded.
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay
at any stage of the proceedings caused by the
Commonwealth when the Commonwealth has failed
to exercise due diligence shall be included in the
computation of the time within which trial must
commence. Any other periods of delay shall be
excluded from the computation.
(2) For purposes of paragraph (B), only periods of delay caused by
the defendant shall be excluded from the computation of the
length of time of any pretrial incarceration. Any other periods of
delay shall be included in the computation.
(3)(a) When a judge or issuing authority grants or denies a
continuance:
(i) the issuing authority shall record the identity
of the party requesting the continuance and the
reasons for granting or denying the continuance; and
(ii) the judge shall record the identity of the party
requesting the continuance and the reasons for
granting or denying the continuance. The judge also
shall record to which party the period of delay caused
20
by the continuance shall be attributed, and whether the
time will be included in or excluded from the
computation of the time within which trial must
commence in accordance with this rule.
A cursory review of the docket indicates that No Rule 600 violation occurred prior to either
of Appellant's trial. With regard to his first trial, the complaint against him was filed on March 13,
2014, making the mechanical run-date March 14, 2015. Appellant's fir§t trial commenced on
January 4, 2016, 662 days thereafter. A review of the docket reflects that 452 days were excludable
time due to court unavailability, defense continuance requests, and Appe}lant'g
unavailability. Subtracting (hose days from the 662 that elapsed, indicates that Appellant's first trial
commenced within the 365 day threshold. Thus, a Rule 600 violation did not occur. 2
With regard to Appellant's second trial, it commenced on May 24, 2016, 133 days after a
mistrial was declared in his first trial. Rule 600 provides that a retrial shall commence within 120
days following the grant of a new trial. Pa.R.Crim.P, 600 (A)(2)(d). Therefore, no Rule 600
violation occurred and thus, no relief should be granted with respect to this claim.
Appellant next argues that this Court abused its discretion by denying his motion that the
Court recuse itself. Appellant argued in the motion that the Court should recuse itself because it
granted a Commonwealth request for a continuance in Appellant's absence from the coun room.
(N.T. 4/23/15, 6). Generally, a party who asserts that a trial judge must be disqualified bears the
2
Thc significant periods of time the Coun tOund cxchlddble wilh regard to Appellant's first trial were from 9/22/15
to 12/16/14 (85 days), 4/23/15 to 8/10/15 (109 days), and 8/10/15 to 1/4/16 (147 days. They total 34] days, Subn-
acting these 341 days from the 662 days results in a figure of321 days, well below the 365 days the Rule requires
a defendant to be tried within.
21
burden of producing evidence establishing bias, prejudice or fairness necessitating recusal.
Commonwealth Darush, 459 A.2d 727, 731 (Pa. 1983). The standard of review for the denial of a
recusal request is whether the court committed an abuse of discretion.
A jurist asked to recuse him or herself first must make a conscientious determination of his
or her ability to assess the case in an impartial manner, free of personal bias or interest in the
outcome. Çommonwealth y. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998).The.judge must then consider
whether continued involvement in the case creates an appearance of impropriety or would tend to
undermine public confidence in the judiciary. Id. "This is a personal and unreviewable decision that
only the jurist can make." Id. (citing Goodheart v. Casey, 565 A.2d 757, 764 (Pa. 1989)).
The grant of the continuancc in this matter occurred on February 6, 2015. The Court granted
it because a police officer was unavailable. Although Appellant was not present in the court room,
stand-by counsel was and he objected to the Commonwealth's request. There was nothing improper
in the grant of the continuance itself and Appellant did not suffër prejudice. Thus, the grounds for
recusal raised by Appellant did not call into question this Court's partiality or ability to be fair. Nor
did it raise an appearance of impartiality or tend to undermine the public's faith in the judiciary.
Consequently, this Court properly denied the motion and that ruling should be affirmed
Appellant's eighth issue alleges that he was denied due process because he was not present
for several listings of the case. The law provides that a defendant is "guaranteed the right to be
present at any stage of the criminal proceeding that is critical to its outcome if his presence would
contribute the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987), Snyder
v. Massachusetts, 291 U.S. 97, 105-106 (1934) (a defendant has a due process right ''to be present
in his own person whenever his presence has a relation, reasonablÿ substantial, to the fullness of
his opportunity to defend against the charge,"). A defendant's presence, however, is not
22
constitutionally guaranteed "when presence would be useless, or the benefit but a shadow." 14,
quotipg Snyder, 291 U.S. at 106-107.
Thus, the denial of a criminal defendant's right to be present at a critical stage of the trial
proceedings should be considered in light of the entire record, and no relief should be granted where
the defendant has not been prejudiced. United States v. Gagnon, ei al., 470 U.S. 522, 526527 (1985),
citing Snyder v. Massachusetts, 291 U.S. at 115; Rushen v. SpaiÄ2, 464 U.S. 114, 117118 & n.2
(1983). see also Commonwealth v. Hoss, 283 A.2d 58, 67 (Pa. 1971) (although accused has right
to be present at every stage of proceedings, no relief is due where he was not prejudiced);
Commonwealth v. Ressler, 798 A.2d 221, 223 (Pa Super. 2002) (to be entitled to relief based on a
claim that a defendant was improperly absent from some critical aspect of the case, the "[alppel[ant
must demonstrate some prejudice resulting from the court's actions").
On the dates cited by Appellant, nothing critical to his case or defense occurred. The maltcr
was before the Court simply [Or scheduling purposes and not to decide anything of importance to
the case. These were not critical stages in Appellant's prosecution. Appellant failed to establish or
even allege how his absence was prejudicial. For these reasons, it is suggested that relief be denied
with respect to this claim.
Ninth, Appellant claims that the prosecutor denied him a fair trial when he commented,
during his opening statement that "Rachel Ostrow don't have a lot of money. She don't live in
Center City. She don't have nice clothes." Appellant's 1925(b) Statement, Issue 9. This claim
should be deemed waived because Appellant failed to cite to the record, the alleged comment in
his 1925(b) statement.
The claim Should also be deemed waived because Appellant did not lodge any objections
during the prosecutor's opening argument. Seg Commonwealth v. Bullock, 2008 PA Super 83 (Pa.
Super., filed April 28, 2008) (failure to Object below renders appellate claim waived and
23
unreviewable); Commgnwealth v. Colon, 846 A.2d 747, 752 (Pa. Super. 2004) (claim waived on
appeal where appellant moved in limine below, court denied motion, and appellant did not object
to ruling).
Assuming that the claim is properly preserved, Appellantl s claim would still fail, because
"comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such
comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the
defendant so that they could not weigh the evidence objectively and render a true verdict"
Commonwealth v- Hawkins, 701 A.2d 492, 509 (Pa 1997), Accord, Commonwealth v. Sam, 635
A.2d 603, 608 (Pa. 1993).
A review of the prosccutor's opening remarks shows that he made the Iò\lowing comment:
And you need to understand that Ms. Ostrow, when
she comes up here and testifies, Rachel, she doesn't
come from a prctly world where she's going to be up
there in her Sunday best. She lives in a hard part of the
city. And she still has to go back to that neighborhood
after she testifies bcfòre yau here today. And you have
to understand where she comes from. She doesn't livc
down in Center City. She doesn't live in a nice
neighborhood. She's had a rough time. So when she
walks through that door, I need you to evaluate her for
who she is and not how you think she appears.
(N.T. 5/25/16, 35-36),
There is nothing in this comment that would prejudice the jury. Advising the jury of MS.
Ostrow's• anticipated appearance and asking it not to hold it against her was a proper topic for an
opening statement because it merely, in effect, requests that the jury not judge her on her
appearance, but solely on her testimony. The comment did not assert, even by innuendo, that the
jury should believe her because of her circumstances and thus, the prosecutor did not engage in
prosecutorial misconduct. Accordingly, the claim should be dismissed because it was waived.
Even if it is deemed not to have been, it should not result in the grant of relief because it lacks
24
merit.
In his tenth claim, Appellant asks that he be granted a new trial because this Court
permitted the prosecutor to cross-examine his witnesses and ask them leading questions absent a
plea of surprise from the prosecutor or a claim that the witnesses had become adversarial. As was
the case with Appellant's ninth claim, this issue should be deemed waived because Appellant has
failed to articulate where in the record the alleged improprieties can be found.
In any event, this Court's review of the record Fails to yield any indication that the use of
leading questions by the prosecutor was improper. For example, with respect to Abdul Scott, it
was clearly lhe case that he was a hostile witness. He refused to even acknowledge that Appellant
was his half-brother or that he knew him. (N.T. 2/25/16, 138-139). There was no need to request
permission to treat him as a hostile witness after he gave such testimony.
The element of surprise is no longer an absolute requirement in the excrcisc of the court's
discretion to allow a party to treat its own witness as a hostile witness. Commonwealth v.
Jones 434PaSuper.469, 644 A.2d 177 (1994); C01monwealth v. Brady, 507 A.2d 66, n (Pa. 1986).
Because the Pennsylvania courts now permit parties to contradict or impeach witnesses called by
them without a strict requirement of surprise when the interests of truth and justice seem to require
it, no error occurred here. 14.
Moreover, a prosecutor is entitled to confront any witness with a prior inconsistent
statement, and is entitled to do so through the use of leading questions. Under Pennsylvania Rule
of Evidence 613, witness may be examined concerning a prior inconsistent statement made by the
witness, whether written or not..." Pa.R.E, 613(a) (emphasis omitted). And Rule 607 provides that,
"[t]he credibility of any witness may be attacked by any party, including the party calling the
witness." Pa.R.E- 607(a).
25
Finally, Rule 61 1(c) states that, "[w]hen a party calls a hostile witness interrogation may be
by leading questions ... Pa.R.E. 611 (c). Sgg also L. Packei & A, Poulin, Pennsylvania Evidence, §
611.3, at 468 (1987) ("When a witness is hostile or biased against the party calling him, examination
by leading questions on direct or redirect is permitted"), Thus, there was nothing improper about
the prosecutors use of leading questions in his examination of Abdul Scott or the other witnesses,
and this Court did not abuse its discretion in overruling Appellant's alleged objections thereto. Sce
Commonwealth v. Settles, 275 A.2d 61, 63 (Pa. 1971) (use of lehding questions is within discretion
of trial court, particularly where witness is reluctant to testify against defendant); Commonwealth
v. Bell, 476 A.2d 439, 454 (Pa. Super, 1984) ("the use of leading questions lies within the discretion
of the trial court and a court's decision thereon will not be reversed absent an abuse of its discretion")
(citations omitted).
Appellant's eleventh issue contends that this Court erred by permitting the Commonwealth
to introduce Abdul Scott's statement to police as substantivc evidence. The claim should bc deemed
waived because Appellant did not cite to the record or explain why he believes this to be the cxse.
AS noted above, the failure to set forth an issue with sufficient specificity to permit review of the
claim results in its waiver.
If the claim is preserved, no relief should be granted. A witness's prior inconsistent
statement is admissible as substantive evidence where the witness is available for cross
examination and the statement was: (l) given under oath at a hearing; (2) reduced to a writing
adopted by the
that was signed adopted the witness; .Q!. and (3) a contemporaneous verbatim recording
of the witnessts Commonwealth v-. Brady, statement. 507 A.2d 66, 70 (Pa. 1986);
Cpmmonweqbth v. Lively, 610 A.2d 7, 10 (Pa. 1992); Commonwealth v. Presþury, 665 A.2d
833, 831-832 (Pa.Super. 1995); Pa-R.E. 803.10).
26
Instantly, the Commonwealth established through the testimony of Abdul Scott and the
detective who interviewed him that Scott signed and adopted the statement and that it was a
contemporaneous verbatim recording of what Scott related to police. The Commonwealth
therefore met its burden of proof and this Court did not en by allowing the Commonwealth to
introduce the contents of Scott's statement as substantive evidence. Accordingly, no relief should
bc forthcoming on this claim.
Twelfth, Appellant contends that this Court erred by permitting the Commonwealth to
introduce statements given to police by Luz Ambert-l?rieto, Rachel Ostrow, Patricia Clarke, and
Officer Rosa. Again, Appellant did not indicate wherc in thc record the alleged errors appear and
articulate why he thinks this Court committed error by permitting the Commonwealth to introduce
the prior consistent statements of these witnesses.
In any event, no error occurred because Appellant alleged that each of the fòregoing
witnesses testified falsely and inconsistently. Therelöre, the Commonwealth was permitted to
introduce their prior consistent statements to rebut Appellant's assertions. Pennsylvania Rule of
Evidence 613, entitled, "Prior Statements of Witnesses", provides in part:
(c) Evidence of Prior Consistent Statement of
Witness
Evidence of a prior consistent statement by a
witness is admissible for rehabilitation purposes if the
opposing party is given an opportunity to
crossexamine the witness about the statement, and the
statement is offered to rebut an express or implied
charge of:
(I) fabrication, bias, improper influence or
motive or faulty memory and the statement was made
before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement,
which the witness has denied or explained, and the
27
consistent statement supports the witness' denial or
explanation.
Pã.R.E. 613. In CommQnwealthv. C�, 414 A.2d 1032 (Pa. 1980), the Supreme Court stated:
It is well-established that a trial court may, in its
discretion, permit introduction of a prior consistent statement of a
witness in order to rebut a claim of recent fabrication in the witness's
trial testimony. Here, by bringing out the fact that a portion of
Officer Ghee's trial testimony was not contained in his statement to
Detective Gallo, defense counsel clearly advanced recent
fabrication. Therefore, it was not error for the court to permit the
Commonwealth to rebut the claim of recent fabrication by
introducing Officer Ghee's prior consistent statement. Cruz, 414
A.2d at 1036.
In the event that the Appellant argues that it was error to allow the admission of the prior
consistent statements during the direct examination of thc witnesses, no relief is duc him. Our
Supreme Court has ruled that in deciding whether a witness's testimony was attacked so as to
permit the introduction of a prior consistent. statement for "rehabilitation" purposes, a court may
rely on the opposing party's opening and closing arguments as well as its cross-examination of the
witness, and that prior consistent statcmcnts may propcr[y be admitted in anticipation of an attack
on the witness's credibility. See Commonwealth v Wilson 861 A.2d 919, 930 and n.l l (Pa. 2004)
(trial court has discretion to allow a witness's prior consistent statement to be admitted in
anticipation of attacks on his credibility; a trial court's admission of a prior consistent statement
may be upheld even where the defense strategy of attacking the witness's credibility was not clear
during cross-examination of the witness but instead only became clear during closing argument);
Commonwealth V. Smith, 540 A.2d 246, 257-58 (Pa, 1988) (holding that trial court did not abuse
its discretion in admitting witness's prior consistent statements before that witness was actually
impeached on cross-examination because appellant's defense, as demonstrated by his opening
. .L�
28
argument, centered around impeaching the credibility of that and other witnesses). Additionally,
"[i]t is not necessary that the impeachment be explicit, i.e., that an actual allegation of recent
fabrication be made, but only that a jury be able to reasonably infer that such is occurring."
Commonwealth v. Gore, 396 A.2d 1302, 1307 (Pa. Super. 1978); accord Commonwealth v.
Hunzer 868 À.2d 498 (Pa. Super, 2005),
Consequently, for all of the foregoing reasons, it is suggested that Appellant be denied relief
with respect to this claim.
Next, Appellant submits that this Court denied him a fair trial by permitting the
Commonwealth to introduce as substantive evidence the photographs of Appellant police showed
to Luz Ambert-Prieto and Abdul Scott. By again failing to articulate why he believes error occurred,
it is submitted that Appellant waived review of this claim for purposes of appeal because this Court
cannot discern what the basis ofthe claim may be.
As discussed in disposition of Appellant's third issue, the showing of Appellant's photograph
to the above witnesses did not violate his constitutional rights or taint those witnesses' identification
of him because the witnesses knew him prior to the identification sessions.
Therefore, if the claim is not deemed to have been waived, it is suggested that Appellant be denied
relief with respect thereto.
Appellant's fourteenth issue argues that this Court erred by permitting the Commonwealth
to introduce Ms. Ostrow's medical records and the conclusions reached therein to establish the
cause of her injuries because the Commonwealth did not present as a witness the doctor who
treated her, which denied him the opportunity to cross-examine the doctor. (N.T. 5/26/16, 142
144). Relief should bc denied with respect to this claim because the admission of the records was
harmless error.
29
Pa.R.E. 803(6), applies to "Records of Regularly Conducted Activity?' including hospital
records and it is "consistent with prior Pennsylvania case law" (Official Comment). It applies to
medical documents to the extent that they show the fact of hospitalization, treatment prescribed,
and symptoms given. Comrnonwyalth y. Christx; 656 A.2d 877, 884 (Pa. 1995). Medical opinion
contained in the records and proffered as expert testimony is not admissible however where the
doctor is not available for cross-examination," Commonwealth V. DiGiacomQ, 345 A.2d 605, 608
(Pa. 1975) (citations omitted); accord Phillips v. Gerhart, 801 A.2d 568, 575 (Pa. Super. 2002)
("We have long held that a medical opinion contained in a hospital record is not admissiblc unless
1110 doctor who prepared the report is available for in-court, cross„examination regarding the
accuracy, reliability, and veracity of his or her opinion"); Commonwealth v. McMaster, 666 A.2d
724, 731 (Pa.Supcr, 1995) ("Appellant could not introduce the medical opinion of his personal
physician, via copies of medical records, without calling the doctor as a witness who would then be
subject to cross-examination").
Ms. Ostrow's medical records were properly admitted to establish that she suffered a gunshot
wound. Even if the admission was improper, relicf should be denied Appellant because the error
was harmless. An error will be deemed harmless where the appellate court concludes beyond a
reasonable doubt thàt the error could not have contributed to the verdict. If there is a reasonable
possibility that thé error may have contributed to the verdict, it is not harmless. In reaching that
conclusion, the reviewing court will find an error harmless where the uncontradicted evidence of
guilt is overwhelming, so that by comparison the error is insignificant.
Commonwealth v. Young, 748 A.2d 166 (Pa. 1999); See J9romonweaith··y •.Mitchell, 839 A•2d
202, 214 -215 (Pa. 2003).
30
To determine whether an error is harmless, it must meet the following three-parl test: (I) the
error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously
admitted evidence was merely cumulative of other, untainted evidence which was substantially
similar to the erroneously admitted evidence; Or (3) the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect of the etTor was so insignificant
by comparison that the error could not have contributed to the verdict. See Commonwealth v.
Egy, 612 A.2d 1349, 1350 (Pa. 1992) (citing 2oinmonwealth v. Williams. 573 A,2d 536, 538539
(Pa. 1990)).
Instantly, the Commonwealth introduced other evidence establishing that Ms. Ostrow had
been shot. Ms. Ostrow testified as did Abdul Scott, who testified that he heard gunshots and
realized that Ms. Ostrow suffèred gunshot wounds. (N.T. 5/25/16, 54-55, 147-148). In addition,
hospital personnel recovered metal shards comprised of metals consistent with projectiles. (NT.
5/26/16, 123-125). The medical records, therefore, merely confirm and corroborate the witness
testimony, For all of the foregoing reasons, no relief should be granted on this claim because the
error was harmless.
Appellant's fifteenth issue argues that this Court deprived him of a fair trial by permitting
the Commonwealth to introduce the recording of the 91 1 radio call because the contents thereof,
i.e., the statements of Ms. Clarke and Abdul Scott, were hearsay. This claim was raised in
Appellant's fourth issue, As noted in this Court's discussion of the issue above, the claim wholly
lacks merit and for those same reasons, it is suggested that no relief be granted With respect
thereto.
In his sixteenth issue, Appellant asserts that he was denied a Fair trial as a result of a ruling
by this Court prohibiting him from cross-examining Luz Arnbert-Prieto about the fact that she
31
was serving a probationary sentence at the time she gave her statement to police. This claim
should be deemed waived since Appellant did not Object when this Court made the ruling
precluding him from cross-exarnining her about her probation. (N.T. 5/25/16, 4-5).
Seventeenth, Appellant again complains that he was deprived of a fair trial because this
Court permitted the Commonwealth to introduce evidence related to his prior conviction for
robbery. This instant Claim mirrors the sub-claim Appellant raised in his fourth issue in his
1925(b) statement. This Court suggests that it be denied for the same reasons set forth above.
In his eighteenth issue, Appellant argues that he was deprived of a fair trial bccausc this
Court permitted the Commonwealth to introduce policc reports and police documents containing
hcarsay. Again, because Appellant did not identify the documents to which he refers in his
1925(b) statement, he has waived review of this claim, It is not the job of this Court to pcrusc thc
record and identify the documents, the admission of which he now complains,
Appellant's nineteenth issuc asserts that this Court denied him a fair trial because il
pcrmiitcd the prosecutor to comment on the fact that he represented himself at trial. Relief should
be denied on this claim. Appellant waived review, first, because he did not refer to the location jn
the record where the alleged comments appear and, second, because he did not object to any portion
of the prosecutor's closing argument. As noted above, When a defendant's claim lacks sufficient
specificity to allow the court to address the claim the issue ig waived for purposes of appeal. It is
also noted above that the failure to Object or preserve an issue during trial waives that issue fot
purposes of appeal, See Commonwealth v. Andrulewiçz, 911 A,2d 162, 168 (Pa. Super. 2006)
(failure to object to allegedly prejudicial remarks results in waiver); Commonwealth v. 884
Â.2c1 920, 926 n.5 (Pa. super. 2005) (same).
Twentieth, Appellant insists that he was deprived of a fair trial because the Court provided
the jury with written jury instructions with respect to the crimes of Aggravated Assault with a
32
Deadly Weapon and Aggravated Assault-Causing Seriöus Bodily Injury, (N.T. 5/27/16, 37-38).
Pa.R.Crim.P. 646(B) permits a judge to give the jury "written copies of the portion of the judges
charge on the elements of the offenses, lesser included offenses, and any defense upon which the
jury has been instructed...." Thus, no error occurred by giving the jury the identified jury
instructions. 1
In issue twenty-one, Appellant complains that he was deprived of a fair trial because this
Court refused to give the jury numerous defense exhibits. (N.T. 5/27/16, 38-43). The request was
dcnied because Appellant stated that he had an objection to providing the jury with certain
Commonwealth exhibits and because the Court believed that if it sent back certain exhibits and not
others it may cause the jury to give greatcr weight to those it received, it advised the jury that il had
10 rely on its recollection. (N.T. 5/27/16, 41-42).
A trial court's decision as to which cxhibits may be taken out with a jury is within the sound
discretion of the trial court and will not be reversed absent abuse of that discretion.
Il
It ignoted that the record indicates that this Comt did not sendNTitten jury instmctioas backwith the jury. (N.T.
5/27/16, 38). The transcript is incorrect because the Court did provide them to the jury. (N.T. 10/17/16, 311-12).
Commonwealth v. Bango, 742 A.2d 1070 (Pa. 1999); Commonwealth v, Hawkins, 701 A.2d 492(Pa. 1997). An abuse of discretion may not be found merely because an appellate court might
have reached a different conclusion, but requires a result of manifest utüeasonableness, or
partiality, prejudice, bias, or ill-will or such lack of support so as to be clearly erroneous,
Commonwealth v, Brougher, 978 A.2d 373, 376 (Pa. Super. 2009). The propriety of the trial
court's decision to allow the jury to review eyen properly admitted exhibits or have accurate trial
testimony read to them during deliberations is examined in relationship to the issues raised at
trial. ::ommonwe�lth:·v. Riggins,.386 A.2d 520, 525 (Pa, 1978).
Instantly, no abuse of discretion occurred, Had the Court agreed to Appellant's request,the
Court would have been compelled to give the jury the Commonwealth's exhibits for the sake of
33
fairness. In a trial that took only days to try and involved less than ten witnesses, the Court's
refusal to provide the jury with Appellant's exhibits certainly was not an abuse of discretion. The
jury was able to reach a verdict shortly after the Court denied its request thereby demonstrating
that Appellant was not prejudiced by the ruling, Accordingly, for the reasons stated, it is suggested
that relief be denied with respect to this claim.
In issue twenty-two, Appellant argues that the evidence was insufficient to sustain his
convictions because thc convictions are based entirely on Abdul Scott's statement to police, which
Appellant claims, inter alia, was contradicted by other trial testimony and was wholly unreliable
because Scott allegedly smoked K2 prior to his interview and he repudiated and disavowed his
prior statements. Appellant also claims that the evidence was insufficient because he presented
valid evidence of alibi and evidence showing his appearance on the night of the incident was
different as were the clothes he wag wearing that night. Finally, Appellant asserts that the
evidence was insufficient because the Commonwealth did not present any physical evidence
connecting him to the crime.
In essence, Appellant is arguing that the evidence was insufficient because of
inconsistencies in the evidence and a lack of other evidence. Such claims do not raise or preserve
a sufficiency claim. In order to preserve a challenge to sufficiency of the evidence on appeal, an
appellant must state with specificity the element or elements of the crime upon which he alleges
the evidence was insufficient. See Commonwealth v. Veon> 109 A.3d 754, 775 (Pa. Super. 2015),
citing Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super, 2013), and
Commonwealth v. Gibbs, 981 A,2d 274, 281 (Pa. Super- 2009). Here, Appellant's Rule 1925(b)
Statement fails to identity which specific elements of the crimes he was convicted of committing
34
that the Commonwealth failed to establish. See Garland. Accordingly, for this reason it is
suggested that Appellant's sufficiency claim be deemed waived on appeal,
In determining whether the evidence was sufficient to meet the Commonwealth's burden
of proof, the reviewing court must view the evidence in the light most favorable to the
Commonwealth as verdict winner, and draw all reasonable inferences favorable to the
Commonwealth in determining whether there iS sufficient evidence to find every element of the
crime beyond a reasonable doubt. Commonwealth v. Bryant, 67 A.3d 716, 721 (Pa. 2013). The
entire trial record must be evaluated and all evidence actually received must bov
consideredCommonwealth v. Reed, 990 A.2d 1158, 1161 (Pa. 2010); Commonwealth v. Laird,
988 A.2d 618, 624-625 (Pa. 2010); Commonwealth v. Segida, 985 A.2d 871, 880 (Pa. 2009). only
evidence that supports the verdict may be accepted as truc tor purposes of appellate review.
Commonwealth v. Breakiwn, 571 A.2d 1035, 1042 (Pa. 1990).
A sufficiency analysis docs not consider the credibility, reliability, or weight of the
evidence. Commonwealth v. Bristow, 538 A.2d 1343, 1345-1346 (Pa. Super. 1988). Rather, a
sufficiency claim must accept the credibility and reliability of all evidence that supports the verdict.
Breakiron, 571 A.2d at 1042,
Instantly, the jury determined that both of Abdul Scott' $ identifications of Appellant were
credible despite Scott's testimony that he saw nothing and did not tell police that Appellant was the
shooter. Scott's identification of Appellant immediately after the incident had the ring of truth because
Scott's initial statements were excited utterances, Which, as noted above, have indicia of reliability.
That reliability was solidified by the fact that immediately after the shooting he told every person 'he
had contact with that Appellant was the person responsible for the shooting. There was very minuscule
·�·a..
35
chance that the identification was wrong given that Appellant was Scott's half-brother and Scott
did not appear to be under the influence of an intoxicant at the time of the incident given his actions to
render aid to Ms. Ostrow immediately after the shooting,
His statement to police also was reliable because he did not appear to be under the
influence of an intoxicating substance and he accurately described what occurred during the
incident. Thus, his identification of Appellant was sufficient to sustain the convictions. The law is
clear that a single witness's positive identification of the accused is sufficient to establish his
identity as the robber. Commonwcaltll v. Thomas, 539 A.2d 829, 931 (Pa. Super. 1988). See also
Commonwealth v. Boone 429 A.2d 689, 691 n.2 (Pa. Super. 1981) ("the testimony of one witness
may suffice to establish the identification of the accused"). In addition, any inconsistencies in a
witnesses' testimony go to the weight, not sufficiency, of the evidence. Sce Commonwealth v.
Trinidad, 96 A,3d 1031', 1038 (Pa. Super. 2014) (stating (l) variances in testimony go to credibility
of witnesses and not sufficiency of evidence, and (2) mere conflict in testimony does not render
evidence insuffiCicnt because il is within province of fact-finder to determme weight to be given
to testimony and to believe all, part, or none of evidence), appeal
denied 99 A.3d 925 (Pa. 2014).
Although Appellant presented evidence of alibi, as noted above, defense evidence is not
considered in determining whether the evidence was sufficient to sustain a conviction. It is noted
that Appellant's evidence failed to definitively establish an alibi.
Finally, the fact that Scott repudiated the contents of hi$ statement to police and railed to
identify Appellant during the trial did not rcndcr the evidence insufficient because his Statement,
wherein he identified Appellant as the shooter, was admitted as substantive evidence. In
Coqunonwe�lth y. Brown,52 A.3d 1139, 1171 (Pa. 2012), the Pennsylvania Supreme Court
36
stated that "criminal convictions which rest only on prior inconsistent statements of witnesses
who testify at trial do not constitute a deprivation of a defendant's right to due process of law, as
long as the prior inconsistent statements, taken as a whole, establish every element of the offense
charged beyond a reasonable doubt, and the finder-of-fact could reasonably have relied upon them
in arriving at its decision." Instantly, the contents of Scott's statement, by themselves established
the elements of the crimes with which he was charged. Therefore, the evidence was sufficient and
relief should be denied with respect to this claim.
In issue twenty-three, Appellant contends that the verdict was against the weight of the
evidence for the very same reasons he submitted with respect to the previous claim. in issue 24,
he claims that this Court committed a duc process violation by dcnying his postusentence motion
weight claim, Neither claim entitles Appeltant to relief.
'I'hc standard in reviewing a weight of the evidence claim is well-settled:
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. 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.
One of the least assailable reasons for granting or denying a new trial
is the lower court's convict ion that the verdict was or was not against
the weight of the evidence and that a new trial should be granted in
the interest ofjustice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and citations omitted); ·�also
CommonwcaEth v, Sanchez, 36 ,3d 24, 27 (Pa. 2011) (stating that "[r]elief on a weight of the
evidence claim is reserved for extraordinary circumstances, 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 give n another opportunity to prevail." (citation omitted)),
37
The initial determination regarding the weight of the evidence is for the fact-finder.
Cornino11wealth. v. Jarowecki,.923 A.2d 425, 433 (Pa. super. 2007). The trier of fact is free to
believe all, some or none of the evidence. 14. A reviewing court is not permitted to substitute its
judgment for that of the fact-finder. Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999).
When the challenge to the weight of the evidence is predicated on the credibility of trial testimony,
appellate review of a trial court's decision is extremely limited. Unless the evidence is so
unreliable and/or contradictory as to make any verdict based thereon pure conjecture, weight of
evidence claims shall be rejected. Commonwealth v. Ros-setti, 863 A-2d 1185, 1191 (Pa. Super.
2004).
Applying the foregoing to the instant matter, the verdict did not shock the conscience for
the samc reasons sct 10rth above. Abdul Scott's post-incident identifications of Appellant were
reliable. In addition, the jury clearly had grounds to reject Scott's testimony that Appellant was
not his half-brother and that the person he identified as the shooter was not Appellant because
that testimony was incredible, if not perjurious.
It is further noted that Appellant's claim of alibi was not supported by the documents he
presented in his defense. The prosecutor showed that the records did not establish that Appellant
was twenty minutes from the scene of the shooting when it occurred. See N.T. 5/26/16, 193-196.
In addition, the testimony Of Jabbar Scott did not have the ring of truth because it was
contradicted by Jabbar's own testimony and the other evidence in the case.
In presiding over the trial and asse$sing the witnesses' testimony, this Court deemed it
credible despite some inconsistencìeg and the other factors cited bÿ ÂppeIlant in support Of his
weight claim. The law supports that finding. Seg Commgnwealth v. Beckham, 503 Ã.2d 443, 446
(Pa. Super. 1986) (weight claim cannot be predicated on alleged discrepancies between police
statements and trial testimony; weight claim depends on showing that trial testimony is
38
hopelessly contradictory), citing Commonwealth v. Goldblum·,. 447 A.2d 234, 240 (Pa. 1982);
CornmQnweaIth v. Simmons, 662 A.2d 621, 630 (Pa. 1995) (where defendant raises only minor
inconsistencies in witnesses' testimonies, verdict is not against the weight of the evidence). A fact
finderk decision to credit a witness is even less assailable where, as here, defendant has explored
the alleged inconsistencies in depth on cross examination (N.T. 5/29/14, 15-22, 29-39). See
Commonwealth v. Cousar 928 A.2d 1025, 1036 (Pa. 2007) (rejecting challenge to weight of the
evidence on basis of witness credibility where fact finder credited the testimony of witnesses who
had been subjected to cross-examination). Thus, it is clear that this Court did not commit an abuse
of discretion in denying Appellant's weight claim and it is respectfullÿ suggested that the decision
to deny Appellant relief on his weight claims be affirmed for the reasons statcd.
Defendant next asserts that this Court denied him due process of law by failing Lo grant him
a new trial based on newly discovered evidence. That evidence consists of a letter involving a
transaction at a convenience store that Appellant alleges would show that, at or about the time of
the crime herein, he was elsewhere.
In order to be entitled to a new trial predicated on after-discovered evidence, a defendant
must establish that the evidence: l) was discovered after the trial and could not have been obtained
earlier through the exercise of reasonable diligence; 2) is not merely corroborative or cumulative;
3) will not be used solely to impeach a witness's credibility; and, finally, 4) will likely result in a
different verdict if a new trial is granted, Commqnwealth v, Chamberlain, 30
A.3d 381, 414 (Pa. 2011). If any one of these elements fails, the claim fails without further
analysis, Id.; Commonwealth v. Npcerq, 582 A.2d 376, 382 (Pa. Super. 1990). "Unless there has
been a clear abuse of discretion, the refusal by the court to grant a new trial on the basis of after-
discovered evidence will not be disturbed.' CommQL-y.ealth-Y2-B.e.nso.n, 463 A.2d 1123,
1125(Pa. Super. 1983).
39
Appellant merely states that he received notification that the previously unavailable
material was now available. He did not present the Court with any information or advise the Court
about what information the material contained, Thus, he failed to meet his burden of proving that
the information would likely result in a different verdict. In addition, the material is cumulative of
evidcncc Appellant presented at trial and would not result in a different outcome, It would not
have established that Appellant made the purchase he alleges at thc time the crime was committed.
Anyone could have had Appetlanl's bank card and made the transaction. For all ofthe foregoing
reasons, it is suggested that relief be denied with respect to this claim.
Appellant's next claim asserts that this Court deprived him of due process of law and
committed an abusc of discretion by imposing consecutive sentences pursuant to the same statutes.
A review of the record shows that this Court imposed consecutive sentences on the two Attempted
Murder charges, which pertained to Abdul Scott and Ms. Ostrow,
The Superior Court has observed that "the decision whether to impose a sentence
consecutively or concurrently is a discretionary matter for the trial court." Commonwealth v.
Eckles, 625 A.2d 1265, 1266 (Pa. super. 1993), appeal denied, 651 A,2d 532 (Pa. 1994). Section
9721(a) of the Sentencing Code '"affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at the same time or to sentences
already imposed. Any Challenge to the exercise of this discretion ordinarily does not raise a
substantial question.' " Commonwealth v. Pass, 914 A.2d 442, 446-447 (Pa, Super. 2006), quoting
Commonygalth-½-MgrC5, 889 A.2d 608, 612-613 (Pa. super. 2005); see Commonwealth
v. Graham, 661 A.2d 1367 (Pa., 1995), dgnigd, 517 U.S. 1157 (1996)('!the general rule in
Pennsylvania is that in imposing a sentence the court has discretion to determine whether to make
it concurrent with or consecutive to Other sentences then being imposed or other sentences
40
previously imposed"). Thus, "[iln imposing a sentence, the trial judge may determine whether,
given the facts of a particular case, a sentence should run consecutive or concurrent with another
sentence being imposed." Cornrnonwealth v. Wright, 832 A.2d 1 1 04, 1107 (Pa. Super. 2003);
see also Commonwealth v. Perry, 883 A.2d 599, 603 (Pa. Super. 2005).
Here, no abuse of discretion occurred by imposing sentences on the two Attempted Murder
charges and ordering that those be served consecutively to one another. There were separate and
distinct crimes committed by Appellant, involving separate victims. Moreover, the sentence reflects
the seriousness of both criminal acts committed by Appellant. There is nothing in the record to
suggest that Appeflant was entitled to a "volume discount" for his crimes by having the sentences
run concurrently, See Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super.
1995); Commonwealth v. Mouzon, 828 A.2d 1126 (Pa. Super. 2003)(concern against running
sentences concurrently by way of habit allowing criminals to recewe "volume discounts" for their
separate criminal acts), Any lesser sentence imposed by the trial court would have depreciated the
seriousness of the offenses committed by Appellant. Thus, no abuse of discretion occurred.
To the extent that Appellant arg1es that separate sentences could not be imposed on both
Attempted Murder charges because they arose out of the same criminal act, thereby requiring
merger, said claim, which implicates the legality of the sentences imposed, Jacks merit. In
Appellant's case, he committed separate acts of Attempted Murder when he fired shots at both of
the victims. "Where there are multiple victims of a defendant's criminal conduct, separate
punishments are not barred by the merger doctrine. This ttme even where there is only a single
criminal transaction. Commonwealth v. Gray, 489 A.2d 213 (Pa. Super. '1985)."
· Commonwealth v. Burdge,562 A.2d 864 (Pa. super. 1989).
41
For all of the foregoing reasons, it is suggested that relief be denied with respect to this
claim.
In his twenty-seventh and final claim, Appellant argues that he was deprived of due process
because the Court allegedly back-dated orders denying his motions. Quite frankly, this Court does
not understand the argument. Because Appellant failed to sct forth the issue in an understandable
cogent manner, it is suggested that the claim be dccmed waived and that relief be denied with
respect to this claim.
CONCLUSION
Based on the foregoing, it is respectfiEliy suggested that the judgment of sentence be
affirmed.
BY THE COURT,
.
ate: 1J;t:J9o It"
{I . .. . I
'
Date:
'
CERTIFJCATION OF SERVICE
I, James Molinari, Esquire, Law clerk to the Honorable Daniel D. McCaffery hereby
certifies that on the day of June, 2017, by first class mail, postage prepaid, a true
and correct copy of the attached opinion was served upon the following:
Kareem Stansbury
NO. MS-4084
SCI-Camp Hill P.O. Box
200 camp Hill, PA 17001-
0200
Hugh Burns, Esquire
Chief-Appeals Unit
Office of the Philadelphia
42
District Attorney
Three South Penn Square
Philadelphia, PA 19107
43