Com. v. Akhmedov, K. ( 2017 )


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  • J-A06043-17
    
    2017 PA Super 384
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    KHUSEN A. AKHMEDOV
    Appellant                 No. 3443 EDA 2015
    Appeal from the Judgment of Sentence November 2, 2015
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0013582-2013
    BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.
    OPINION BY RANSOM, J.:                            FILED DECEMBER 08, 2017
    Appellant, Khusen A. Akhmedov, appeals from the judgment of
    sentence of seventeen to thirty-four years of incarceration, imposed
    November 2, 2015, following a waiver trial resulting in his conviction for four
    counts each of murder in the third degree, involuntary manslaughter,
    homicide by vehicle, and recklessly endangering another person.1           We
    reverse in part and remand for resentencing.
    We adopt the following statement of facts from the trial court opinion,
    which in turn is supported by the record. See Trial Court Opinion, 6/28/16,
    at 2-10. On July 16, 2013, at approximately 10:30 p.m., Appellant drove
    southbound on Roosevelt Boulevard (“the Boulevard”) in Philadelphia,
    ____________________________________________
    118 Pa.C.S. § 2502(c); 18 Pa.C.S. § 2504; 75 Pa.C.S. § 3732; 18 Pa.C.S. §
    2705.
    J-A06043-17
    Pennsylvania, which has a posted speed limit of 40 m.p.h. Appellant and the
    driver of another car entered into a race, with each car weaving through
    traffic at speeds in excess of 70 m.p.h. At times, the cars were so close to
    each other that they appeared “hitched” together. At three successive traffic
    lights the cars stopped, revved their engines, and raced to the next light.
    Finally, both drivers approached the intersection of the Boulevard and 2nd
    Street. The intersection does not have a crosswalk or signs warning drivers
    that pedestrians might be present, and is not intended for foot traffic.
    Further, the intersection is situated in such a way that it is difficult to see on
    approach, due to a hill.
    At the intersection, Samara Banks and her three, minor children were
    crossing the Boulevard. Appellant attempted to evade them but was too late
    to change his course.      Instead, he struck Ms. Banks and the children.
    Appellant remained at the crash site until medical personnel and police
    arrived.   Ms. Banks and one of the children were pronounced dead at the
    scene; the remaining two children passed away at hospitals the next day.
    Multiple eyewitnesses observed the race and subsequent crash.           After the
    accident, a police accident reconstructionist examined the scene and
    determined the path of the collision. The officer concluded that at the time
    of impact, Appellant was traveling at a minimum speed of 79 m.p.h.
    Prior to trial, the Commonwealth litigated a motion in limine seeking to
    admit evidence of prior bad acts, namely, 1) an incident in Lancaster County
    in which Appellant almost ran another driver off the road; 2) a Facebook
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    posting in which he “reveled” in the excitement of drag racing; and 3)
    Appellant’s driving record, including numerous vehicular offenses. The court
    granted the motion and allowed admission of the evidence.2
    Following a bench trial in July 2015, the court convicted Appellant of
    the above counts.         Appellant was sentenced to four to eight years of
    incarceration on four counts of third degree murder and one to two years for
    one count of REAP, all to run consecutively, for a total of seventeen to thirty
    four years of incarceration. The court merged the convictions for involuntary
    manslaughter and imposed no further sentence for charges of homicide by
    vehicle. Appellant filed a post-sentence motion, which was denied.
    Appellant timely appealed and filed a court-ordered statement of
    errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         The trial
    court issued a responsive opinion.
    On appeal, Appellant raises the following issues for our review:
    1. Whether the evidence was insufficient as a matter of law to
    sustain the convictions for third degree murder as the evidence
    failed to establish malice on the part of [Appellant]?
    ____________________________________________
    2  It is unclear from the record when the court granted this motion.
    Appellant’s brief does not cite to the portion of the record containing this
    ruling, nor does the docket reflect an order entered. Appellant’s brief
    indicates that oral argument was held, but does not indicate the day of said
    argument. See Appellant’s Brief at 33. No notes of testimony of the oral
    argument appear in the certified record, and the trial testimony references
    rulings already made.
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    2. Whether the trial court abused its discretion in denying
    [Appellant’s] motion for a new trial on the basis of the weight of
    the evidence?
    3. Whether the trial court abused its discretion when it granted
    the Commonwealth’s motion in limine to admit evidence of prior
    bad acts?
    4. Whether the trial court abused its discretion in denying
    [Appellant’s] request for a particular jury charge on the issue of
    malice in the context of motor vehicle fatalities?
    5. Whether the trial court abused its discretion by ignoring
    mitigating factors and ordering an excessive sentence?
    Appellant’s Brief at 8.
    First, Appellant argues that the evidence is insufficient to sustain a
    conviction for third degree murder, as the Commonwealth did not establish
    that he had the requisite mens rea.3 See Appellant’s Brief at 14. Appellant
    claims that the evidence was insufficient to show he acted with malice, and
    specifically, that he did not operate his vehicle under circumstances which
    almost assured that injury or death would ensue. Id.
    We review a challenge to the sufficiency of the evidence as follows.
    In determining whether there was sufficient evidentiary support
    for a jury’s finding [], the reviewing court inquires whether the
    proofs, considered in the light most favorable to the
    Commonwealth as a verdict winner, are sufficient to enable a
    reasonable jury to find every element of the crime beyond a
    reasonable doubt.        The court bears in mind that: the
    ____________________________________________
    3  Appellant was also convicted of four counts each of involuntary
    manslaughter, homicide by vehicle, and recklessly endangering another
    person. He does not challenge the sufficiency of the evidence with respect
    to those convictions.
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    Commonwealth may sustain its burden by means of wholly
    circumstantial evidence; the entire trial record should be
    evaluated and all evidence received considered, whether or not
    the trial court’s rulings thereon were correct; and the trier of
    fact, while passing upon the credibility of witnesses and the
    weight of the evidence, is free to believe all, part, or none of the
    evidence.
    Commonwealth v. Diggs, 
    949 A.2d 873
    , 877 (Pa. 2008) (citations
    omitted).
    Third degree murder occurs when a person commits a killing which is
    neither intentional nor committed during the perpetration of a felony, but
    contains the requisite malice. See 18 Pa.C.S. § 2502(c); see also
    Commonwealth v. Kling, 
    731 A.2d 145
    , 147 (Pa. Super. 1999). Malice
    exists where there is a wickedness of disposition, hardness of
    heart, cruelty, recklessness of consequences, and a mind
    regardless of social duty, although a particular person may not
    be intended to be injured. Where malice is based on a reckless
    disregard of consequences, it is not sufficient to show mere
    recklessness; rather, it must be shown the defendant
    consciously disregarded an unjustified and extremely high risk
    that his actions might cause death or serious bodily injury. A
    defendant must display a conscious disregard for almost certain
    death or injury such that it is tantamount to an actual desire to
    injure or kill; at the very least, the conduct must be such that
    one could reasonably anticipate death or serious bodily injury
    would likely and logically result.
    Kling, 
    731 A.2d at 147-48
     (internal citations and quotations omitted).
    This Court has concluded that to show malice in relation to a car crash,
    the evidence must show “sustained, purposeful recklessness necessary to
    prove a knowing and conscious disregard that death or serious bodily injury
    was reasonably certain to occur.”    
    Id. at 150
    .   Malice has been found to
    exist where an accident caused by a reckless motorist follows pleas from
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    others to stop, or where a near miss immediately precedes the crash. See
    Commonwealth v. Miller, 
    955 A.2d 419
    , 423 (Pa. Super. 2008); see also
    Kling, 
    731 A.2d at 150
    . Further, we have found that the conduct is more
    egregious if a motorist does not apply his brakes or attempt to slow down
    before a collision than if he attempts to stop.           Miller, 
    955 A.2d at 423
    .
    Essentially, a driver must have adequate time to “calculate and reflect” upon
    the consequences of the reckless conduct in order to render the continuing
    choice malicious. Kling, 
    731 A.2d at 150
    .
    Case law provides examples of motor vehicle crashes in which the
    defendant’s actions showed the sustained and purposeful recklessness
    necessary to prove a knowing and conscious disregard that death or serious
    bodily    injury   was    reasonably   certain   to   occur.       For   instance,    in
    Commonwealth v. Urbanski, an intoxicated driver, despite his wife’s
    repeated     pleas   to   slow   down,    caused      a   deadly   collision.        See
    Commonwealth v. Urbanski, 
    627 A.2d 789
    , 791-92 (Pa. Super. 1993). In
    Commonwealth v. Pigg, the intoxicated driver of a tractor-trailer drove
    several vehicles off the road and ignored another driver’s request to stop
    driving, prior to crashing into another car on a narrow road and killing two
    people.     Commonwealth v. Pigg, 
    571 A.2d 438
    , 439-442 (Pa. Super.
    1990).      In Kling, the defendant raced another vehicle down a curving
    mountain road, narrowly avoiding a collision before crossing the line in a
    blind curve and causing the fatal collision. See Kling, 
    731 A.2d at 146-48
    .
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    In Commonwealth v. Scales, a motorist drove in daylight at
    excessive speeds in a crowded residential neighborhood where children were
    playing in the streets and sidewalks. See Commonwealth v. Scales, 
    648 A.2d 1205
    , 1207-09 (Pa. Super. 1994). Defendant ignored a stop sign and
    almost collided with another vehicle; a bystander pleaded with him to slow
    down, but he did not. 
    Id.
     Instead, without breaking, he sideswiped another
    car, jumped the curb, and pushed a large planter onto two children, crushing
    one of them to death. 
    Id.
     In Commonwealth v. Dunphy, an intoxicated
    driver struck the victim at a high rate of speed and, although he applied his
    breaks, he never came to a complete stop and fled the scene of the
    accident.   See Commonwealth v. Dunphy, 
    20 A.3d 1215
    , 1217-18 (Pa.
    Super. 2011). The defendant later admitted that he had seen pedestrians in
    the street but accelerated anyway to make the changing light. 
    Id.
    Finally, in Commonwealth v. Packer, the defendant inhaled aerosol
    duster prior and during driving, and in a zombie-like state, drove into
    oncoming traffic without swerving, slowing, or attempting to avoid the cars
    in question. See Commonwealth v. Packer, 
    146 A.3d 1281
    , 1283-84 (Pa.
    Super. 2016). The defendant narrowly missed one vehicle before slamming
    head-on into another car. 
    Id.
     This Court found evidence of malice in the
    defendant’s awareness that she was driving dangerously while intoxicated:
    the defendant asked her passenger whether he trusted her, and he
    responded, “Am I going to die tonight?” Id. at 1286.
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    Commonalities may be observed among these cases.            In each case,
    “near misses” occurred almost immediately preceding the crash. See Pigg,
    571 A.2d at 439-442; Kling, 
    731 A.2d at 146-48
    ; Scales, 
    648 A.2d at 1207-09
    ; Packer, 146 A.3d at 1283-84.       In many cases, a bystander or
    passenger warned the defendant to stop or to slow down, and the defendant
    ignored that warning. Urbanski, 
    627 A.2d at 791-92
    ; Scales, 
    648 A.2d at 1207-09
    ; Packer, 146 A.3d at 1283-84. Further, the defendant clearly saw
    the dangers, either in the form of a curving mountain road, children playing
    on the sidewalks and street, pedestrians in the street, or oncoming traffic.
    See Kling, 
    731 A.2d at 146-48
    ; Scales, 
    648 A.2d at 1207-09
    ; 
    20 A.3d at 1217-18
    ; Packer, 146 A.3d at 1283-84; Dunphy, 
    20 A.3d at 1217-18
    . In
    almost all of the cases, the defendant was intoxicated.   See Packer, 146
    A.3d at 1283-84; Pigg, 571 A.2d at 439-442; Urbanski, 
    627 A.2d at
    791-
    92; Dunphy, 
    20 A.3d at 1217-18
    .
    Here, the evidence did not establish that Appellant had the requisite
    sustained and purposeful recklessness necessary to establish the mens rea
    necessary to sustain a conviction for third degree murder.        The evidence
    showed that Appellant acted recklessly in driving at excessive rates of speed
    on Roosevelt Boulevard.   The recklessness necessary to prove involuntary
    manslaughter, and the sustained recklessness required in a case such as
    this, are not the same. See Kling, 
    731 A.2d at 150
     (noting that there is no
    distinction between the malice essential to mens rea for third degree murder
    and   the   malice   necessary    for   aggravated    assault);     see   also
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    Commonwealth v. Comer, 
    716 A.2d 593
    , 596-97 (Pa. 1998) (noting that a
    lesser degree of recklessness is required for involuntary manslaughter than
    for   aggravated   assault   since   assault   requires   recklessness   “under
    circumstances manifesting extreme indifference to the value of human
    life.”).
    Here, the evidence did not show a near miss collision immediately
    preceding the crash, nor any warning provided by a bystander or passenger
    that Appellant heard and ignored.       The intersection where the accident
    occurred was at the crest of a hill, rendering it difficult to see. The accident
    occurred at 10:30 p.m., and the victims were wearing dark clothing.
    Further, there were no pedestrian crosswalks in the area, as that
    intersection is not intended for pedestrian traffic. Appellant told police that
    he did not see the victims at first and attempted to swerve to avoid them
    but could not. Appellant remained at the scene and attempted to render aid.
    Appellant was not intoxicated at the time of the crash.
    As noted above, the Commonwealth did introduce evidence of prior
    bad acts in an attempt to illustrate Appellant’s “near miss” to establish
    malice. Appellant had previously driven recklessly and had been spoken to
    by police regarding a “road rage” incident in Lancaster County.       However,
    that incident took place a week prior to the accident and was not the
    “immediate” preceding miss found in many of the cases discussed supra.
    See Kling, 
    731 A.2d at 147-48, 150
    . That incident did not establish that
    Appellant was aware that his driving on that night, in that manner, would
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    almost certainly cause death or serious bodily harm. See Kling, 
    731 A.2d at 147-48, 150
    .
    Accordingly, although Appellant’s actions certainly gave rise to a
    finding of reckless conduct, and the results were tragic, the evidence does
    not support a finding of malice and the “sustained, purposeful recklessness”
    necessary to prove “a knowing and conscious disregard that death or serious
    bodily injury was reasonably certain to occur.” Kling, 
    731 A.2d at 147-48, 150
    .   Thus, as the Commonwealth did not establish every element of the
    crime beyond a reasonable doubt, we vacate Appellant’s convictions for third
    degree murder. Diggs, 949 A.2d at 877.
    Next, Appellant claims that the trial court abused its discretion in
    denying Appellant’s motion for a new trial on the basis of the weight of the
    evidence.    See Appellant’s Brief at 29.     Appellant contends that several
    factual findings by the court are not supported by the record, including that
    1) the accident occurred in a residential area; 2) the court dismissed flaws in
    the accident investigation officer’s calculations; and 3) the court misapplied
    the doctrine of sustained recklessness. See Appellant’s Brief at 30-33.
    The law regarding weight of the evidence claims is well-settled.
    A claim alleging the verdict was against the weight of the
    evidence is addressed to the discretion of the trial court.
    Accordingly, an appellate court reviews the exercise of the trial
    court’s discretion; it does not answer for itself whether the
    verdict was against the weight of the evidence. It is well settled
    that the jury is free to believe all, part, or none of the evidence
    and to determine the credibility of the witnesses, and a new trial
    based on a weight of the evidence claim is only warranted where
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    the jury’s verdict is so contrary to the evidence that it shocks
    one’s sense of justice. In determining whether this standard has
    been met, appellate review is limited to whether the trial judge’s
    discretion was properly exercised, and relief will only be granted
    where the facts and inferences of record disclose a palpable
    abuse of discretion.
    Commonwealth v. Houser, 
    18 A.3d 1128
    , 1135-36 (Pa. 2011) (citations
    and internal quotation marks omitted).
    First, Appellant argues the court erred in making a factual finding that
    the accident occurred in a “residential area,” as evidence was introduced to
    show that Roosevelt Boulevard is actually a highway on which motorists
    speed excessively, and which pedestrians are not supposed to cross.           See
    Appellant’s Brief at 30. He avers that the character and nature of the road
    speak directly to Appellant’s lack of malice.     Id. at 31.    Based upon our
    disposition of Appellant’s first issue, we need not reach the merits of this
    argument.
    Second, Appellant argues that the court erred in dismissing as
    inconsequential   alleged   flaws   in   the   accident   investigation   officer’s
    calculations.   See Appellant’s Brief at 31.      Appellant contends that the
    officer’s calculations were based on an erroneous belief that the accident
    happened outside of the view of a video camera and that there was a
    possibility that another motor vehicle struck or moved the victim’s body. Id.
    at 31-32. Appellant does not explain how this was an abuse of the court’s
    discretion or how the verdict was so contrary to the evidence that a new trial
    would be warranted.         Houser, 18 A.3d at 1135-36.            The accident
    investigation officer testified 1) that a scuff mark established the stroller’s
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    location at the point of impact, and 2) the location of Ms. Banks’ body
    rendered it unlikely that another car hit or moved the body. Further, even
    discounting the officer’s calculation of Appellant’s speed, four eye witnesses
    testified that they saw Appellant racing or observed the crash. Accordingly,
    it was not an abuse of discretion for the court to deny Appellant’s motion
    where the verdicts, other than the conviction previously vacated, did not
    shock the conscience. See Houser, 18 A.3d at 1135-36.
    Third, Appellant argues that the court misapplied the doctrine of
    sustained recklessness when interpreting the timeline of the accident. See
    Appellant’s Brief at 32. However, based upon our disposition of Appellant’s
    first issue, we need not reach the merits of this argument.
    Next, Appellant claims that the trial court abused its discretion in
    admitting prior bad acts evidence, namely, 1) Appellant’s driving record; and
    2) a video from his Facebook account depicting a silver Audi drag racing with
    another car.4     See Appellant’s Brief at 33.     Appellant contends that this
    evidence was propensity evidence and could not be admitted to show intent,
    because the mens rea for reckless driving does not equate with malice. Id.
    ____________________________________________
    4  On appeal, Appellant also claims that the court improperly admitted
    testimony from a woman who had been involved in a road incident with
    Appellant several days earlier. However, Appellant did not preserve this
    issue in his Pa.R.A.P. 1925(b) statement. Accordingly, the argument is
    waived. See Commonwealth v. Castillo, 
    888 A.2d 775
    , 780 (Pa. 2005)
    (“Any issues not raised in a [Rule] 1925(b) statement will be deemed
    waived.”).
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    at 36.    Further, Appellant argues the evidence was cumulative and
    speculative. Id. at 36-41.
    Appellant’s prior vehicular violations included two convictions for
    reckless driving, one conviction for careless driving, and six speeding
    citations. See N.T., 7/10/15, at 3-7. The video, posted by Appellant to his
    Facebook account in April 2013, two months before the accident, depicted
    two cars, one of which identical to Appellant’s BMW, racing down a deserted
    portion of Sandmeyer Lane in Philadelphia; however, Appellant was not
    pictured in the video. See N.T., 7/9/15, at 3-4, 90. A comment posted by
    Appellant indicates that the cars had reached 110 m.p.h. See N.T., 7/9/15,
    at 3-4, 90. The trial court admitted evidence of the driving record to show
    “intent to engage in reckless conduct,” and the Facebook video to “impute[]
    to [Appellant] a knowledge of the nature of the neighborhood” and to
    “confirm[] [Appellant’s] interest in drag racing.” See TCO at 21-22.
    We first note that, although this evidence was improperly admitted to
    illustrate the court’s erroneous theory of sustained recklessness, we will
    nevertheless address its admissibility under the prongs of Pa.R.E. 404. We
    examine a trial court’s decision concerning the admissibility of evidence for
    an abuse of discretion.   Commonwealth v. Dengler, 
    890 A.2d 372
    , 379
    (Pa. 2005). Regarding the admissibility of prior bad acts,
    [g]enerally, evidence of prior bad acts or unrelated criminal
    activity is inadmissible to show that a defendant acted in
    conformity with those past acts or to show criminal propensity.
    Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
    admissible when offered to prove some other relevant fact, such
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    as motive, opportunity, intent, preparation, plan, knowledge,
    identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
    In determining whether evidence of other prior bad acts is
    admissible, the trial court is obliged to balance the probative
    value of such evidence against its prejudicial impact.
    Commonwealth v. Sitler, 
    144 A.3d 156
    , 163 (Pa. Super. 2016) (en banc)
    (quoting Commonwealth v. Sherwood, 
    982 A.2d 483
    , 497 (Pa. 2009).5
    The trial court admitted Appellant’s driving record to show Appellant’s
    “intent” to engage in reckless conduct.            See TCO at 21-22.   As we have
    discussed at length, supra, mere reckless conduct does not equate to the
    sustained recklessness required to establish “malice” such that a defendant
    has the mens rea for third degree murder. Appellant’s past driving record
    and citations, insofar as the record indicates, similarly implicate questions of
    ____________________________________________
    5 The trial court relied largely upon Commonwealth v. Riggs, 
    63 A.3d 780
    ,
    785 (Pa. Super. 2012), to support its admission of the instant, prior bad acts
    evidence to show Appellant’s sustained recklessness.          In Riggs, the
    defendant caused a crash which resulted in serious bodily injury to two
    victims. 
    Id.
     Riggs had previously been involved in three high speed car
    chases during which he disregarded stop signs and red lights, abandoned his
    car and fled, and crashed into a parked car. 
    Id.
     The Commonwealth
    successfully litigated a Pa.R.E. 404(b) motion to admit this evidence; on
    appeal, Riggs challenged the sufficiency of the evidence but not the
    propriety of the motion itself. 
    Id.
     On appeal, this Court affirmed that the
    evidence had established the sustained recklessness necessary to show
    mens rea. 
    Id.
    However, to rely upon Riggs in this context is to rely on dicta. See, e.g.,
    Castellani v. Scranton Times, L.P., 
    124 A.3d 1229
    , 1243 n.11 (Pa. 2015)
    (citing Valley Twp. v. City of Coatesville, 
    893 A.2d 885
    , 889 (Pa.
    Commw. 2006) (dicta is “an opinion by a court on a question that is directly
    involved, briefed, and argued by counsel, and even passed on by the court,
    but that is not essential to the decision. Dicta has no precedential value.”)
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    ordinary recklessness rather than the sustained malice required to prove the
    mens rea for third degree murder. See Kling, 
    731 A.2d at 147-48, 150
    .
    In Commonwealth v. Sitler, an en banc panel of this Court
    examined whether or not it was appropriate to admit evidence of prior
    crimes in a vehicular homicide case.     See Sitler, 144 A.3d at 162.      In
    Sitler, the defendant tailgated another driver, who indicated she was
    making a right turn. Id. at 159. The defendant then revved his engine and
    accelerated to the other driver’s left, striking and killing a pedestrian
    standing in the center lane of the roadway. Id. At trial, the Commonwealth
    sought to introduce evidence of the defendant’s prior conviction for vehicular
    manslaughter with substantially similar facts.    Id. at 164.    In the prior
    matter, the defendant, tailgating another driver in a dense fog, swerved
    around that car and hit an oncoming vehicle, killing the occupant. Id.
    In deciding this issue, the Sitler Court was mindful of the prohibition
    against admitting such evidence solely to show the defendant’s propensity to
    commit the instant crime. Id. at 163-64. Further, we noted the importance
    of a close factual nexus to demonstrate the connective relevance of the prior
    bad acts to the crime in question. Id. at 164. Specifically with regard to
    vehicular homicide, the mens rea required was that the defendant must
    consciously know and disregard a substantial unjustifiable risk, and that the
    risk the actor disregards is measured by the circumstances known to the
    actor. Id. We found that at least facially, the defendant should have known
    his conduct created a risk that he disregarded.       Id. at 164.    Further,
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    because in both cases the defendant was operating a motor vehicle too
    closely to another vehicle at excessive speeds, where another person died,
    the prior conviction was admissible to demonstrate that the defendant not
    only knew of the risk, but consciously disregarded it. Id. at 164.
    Here, however, such a close factual nexus does not exist. Appellant’s
    prior convictions and citations were for, respectively, reckless driving,
    careless driving, and speeding.   Insofar as the record shows, no one was
    injured during these incidents, nor were the facts sufficiently similar to the
    tragic accident herein. Accordingly, they cannot be admitted to show that
    defendant should have known of the danger or the conscious disregard of
    such danger on the night of the accident. See Sitler, 144 A.3d at 164-65.
    Thus, the trial court committed an abuse of discretion in admitting this prior
    bad acts evidence. See Dengler, 890 A.2d at 379; Sitler, 144 A.3d at 164-
    65.
    Next, the trial court admitted the video of two cars racing on a
    deserted street, as it imputed knowledge of the nature of the neighborhood
    to Appellant and to confirm Appellant’s interest in drag racing. See TCO at
    21-22.   Here, this evidence simply was not relevant to prove knowledge
    such that it would overcome the potential prejudice of its introduction. See,
    e.g., Sitler, 144 A.3d at 163.    First, although there was some testimony
    that Sandmeyer Lane, as depicted in the video, was within proximity to Red
    Lion Road in Philadelphia, Pennsylvania, no witness testified that Sandmeyer
    Lane is near the neighborhood where the accident occurred.           See N.T.,
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    7/10/15, at 97-101.     Neither is Appellant actually visible in the video.
    Second, Appellant’s interest in drag racing cannot be anything but
    propensity evidence, i.e., evidence to show that he was more likely to have
    been drag racing on the night of the accident. See Pa.R.E. 404(b)(1). The
    trial court points to no other relevant purpose for the admission of this
    video. See, e.g., Commonwealth v. Hicks, --- A.3d ---, at *8 (Pa. 2017)
    (filed March 28, 2017).    Accordingly, the court abused its discretion in
    admitting the Facebook video. See Dengler, 890 A.2d at 379; Sitler, 144
    A.3d at 164-65.
    However, despite the trial court’s abuse of discretion in admitting this
    evidence, Appellant cannot show that he was prejudiced by its admission
    such that a new trial is required. This evidence was admitted by the trial
    court to show sustained recklessness.         We have previously vacated
    Appellant’s convictions for third degree murder; Appellant does not argue
    that the evidence was insufficient to establish his convictions for other
    crimes beyond third degree murder; and he admits that his actions were
    inexcusable and that he deserves punishment. See Appellant’s Brief at 14,
    28. Further, his convictions were supported by the testimony of numerous
    eyewitnesses and forensic evidence. See TCO at 2-9. Accordingly, a new
    trial is not required. See, e.g., Commonwealth v. Story, 
    383 A.2d 155
    ,
    164 (1978) (noting that an error cannot be held harmless unless the
    appellate court determines that the error could not have contributed to the
    verdict).
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    J-A06043-17
    Next, Appellant claims the trial court abused its discretion in denying
    his request for a jury charge on the issue of malice in the context of motor
    vehicle fatalities. See Appellant’s Brief at 42. Appellant requested a charge
    based on the language of the holding in Kling instead of the standard jury
    instruction for third degree murder. 
    Id.
     at 42 (citing Kling, 
    731 A.2d at 148
    (noting that a defendant must display a conscious disregard for almost
    certain death or injury)).       As we have already reversed Appellant’s
    convictions for third degree murder, we need not reach the merits of this
    claim.
    Finally, Appellant claims that the trial court abused its discretion by
    ignoring mitigating factors and ordering an excessive sentence.          See
    Appellant’s Brief at 44. Here, Appellant received consecutive terms of four
    to eight years for third degree murder and REAP.          His sentences for
    involuntary manslaughter were merged with his convictions for murder.
    Accordingly, our disposition of Appellant’s first issue may disturb the
    sentencing   scheme   of   the   lower   court.   See   Commonwealth       v.
    Goldhammer, 
    517 A.2d 1280
    , 1283-84 (Pa. 1986) (stating, “When a
    defendant challenges one of several interdependent sentences, he, in effect,
    challenges the entire sentencing plan.”); see also Commonwealth v.
    Williams, 
    871 A.2d 254
    , 266-67 (Pa. Super. 2005) (noting that where this
    Court disturbs the court’s overall sentencing scheme it is appropriate to
    remand for resentencing).    Accordingly, we remand for resentencing, and
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    J-A06043-17
    decline to address Appellant’s claim regarding the discretionary aspects of
    his sentence.
    Judgment of sentence for third degree murder reversed.        For all
    remaining charges, Appellant’s convictions are affirmed.       Judgment of
    sentence   for   the   remaining     convictions   vacated.   Remanded   for
    resentencing. Jurisdiction relinquished.
    Judge Shogan joins the Opinion.
    Judge Panella notes dissent.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/8/2017
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