Com. v. Oum, K.

J-A30011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KANIKA OUM
Appellant No. 1939 EDA 2013
Appeal from the Judgment of Sentence June 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001090-2012
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30, 2015
Kanika Oum appeals from the judgment of sentence entered in the
Court of Common Pleas of Philadelphia County. We affirm in part, and
vacate and remand in part, and we rely upon the opinion authored by the
Honorable Charles J. Cunningham, III.
On November 1, 2011, Oum and his co-defendant, Samneang
Samneang,1 shot a fifteen-year old boy in the face near the intersection of
75th Street and Buist Avenue in Southwest Philadelphia. Following trial, a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Co-defendant’s name is Samneang Sin, however he was charged and tried
as Samneang Samneang. See N.T. Trial, 2/27/13, at 49-50. Samneang’s
related appeal is docketed at 1824 EDA 2013.
J-A30011-14
jury convicted Oum of attempted murder,2 criminal conspiracy,3 aggravated
assault,4 violation of the Uniform Firearms Act (VUFA),5 and possession of an
instrument of crime (PIC).6
The court sentenced Oum to a term of imprisonment of 15-30 years
for attempted murder, a consecutive term of 5-10 years on the conspiracy
conviction, and a consecutive term of 2-5 years on the VUFA conviction, for
an aggregate term of 22-45 years’ imprisonment. The court imposed no
further penalty on the PIC conviction. The court also determined the
aggravated assault conviction merged for sentencing purposes.
Oum filed a timely appeal to this Court. The trial court ordered Oum
to file a Rule 1925(b) statement within 21 days. See Pa.R.A.P. 1925(b).
After seeking an extension of time, which the court granted, Oum filed his
Rule 1925(b) statement on September 12, 2013. He now raises the
following issues for our review:
____________________________________________
2
18 Pa.C.S. §§ 901(a), 2502(a).
3
18 Pa.C.S. §§ 903(a), 2502(a).
4
18 Pa.C.S. § 2702(a).
5
18 Pa.C.S. § 6106.
6
18 Pa.C.S. § 907(a).
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J-A30011-14
1. Did the trial court err in permitting the Commonwealth to
repeatedly elicit hearsay?
2. Did the trial court err in permitting testimony that
Defendant had been seen with a firearm prior to the
shooting, where the incident was remote and unrelated,
and Defendant was not the alleged shooter in the case at
trial, making the probative value of this evidence
outweighed by its prejudicial impact on the jury?
3. Did the trial court err by permitting the prosecutor to elicit
prejudicial testimony that Defendant’s brother had asked a
witness not to come to court?
4. Did the trial court err by refusing to declare a mistrial after
the prosecutor impermissibly implied during his closing
argument that Defendant had a burden to produce
witnesses and evidence in his defense?
5. Should this Court remand the matter for re-sentencing in
light of the lower’s court’s sua sponte recognition that
Defendant’s sentence is improper?
Appellant’s Brief, at 14.
Upon review of the parties’ briefs, the relevant law, and the record as
a whole, we find that the trial court has correctly disposed of issues 1-4 in
his opinion. See Opinion, 2/7/14, at 8-19. Therefore, we affirm the
convictions based on Judge Cunningham’s opinion.
With respect to Oum’s fifth issue, the trial court acknowledged in its
Rule 1925(a) opinion that Oum’s sentence was illegal. The court sentenced
Oum to 15-30 years for attempted murder, and a consecutive term of 5-10
years on the conspiracy to commit murder conviction. As the trial court
recognized, Oum could not be sentenced for two inchoate crimes for conduct
designed to culminate in the same offense, that is, murder. Section 906 of
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J-A30011-14
the Crimes Code precludes conviction of more than one of the inchoate
crimes of criminal attempt, criminal solicitation or criminal conspiracy “for
conduct designed to commit or to culminate in the commission of the same
crime.” 18 Pa.C.S. § 906. See Commonwealth v. Kelly, 78 A.3d 1136
(Pa. Super. 2013) (sentence for conspiracy and attempted murder should
have merged); see also Commonwealth v. Martinez, 438 A.2d 984 (Pa.
Super. 1981) (where criminal conspiracy to commit burglary and subsequent
attempted burglary constituted “conduct designed to culminate in the
commission of the same crime,” that is, burglary, defendant should not have
been sentenced for both attempt and conspiracy, but should have only been
sentenced for one or the other); Cf. Commonwealth v. Jacobs, 39 A.3d
977 (Pa. 2012) (where defendant's convictions for two inchoate crimes had
separate criminal purposes they did not merge.)
We agree with the trial court’s assessment. Therefore, we vacate the
judgment of sentence and remand for resentencing in accordance with 18
Pa.C.S. § 906. See Commonwealth v. Watts, 465 A.2d 1267 (Pa. Super.
(1983). Counsel is directed to attach a copy of the trial court’s opinion in
the event of further proceedings in this matter.
Affirmed in part; vacated and remanded in part. Jurisdiction
relinquished.
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J-A30011-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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COURT OF COMMON PLEAS
FIRST JUDlCL10 Pa.
123. 507 A2d 66 (Pa. 1986), held that out of court testimonia1 statements made by non-
party witnesses are admissible as substantive evidence if such witness is available to
testify. Brady held : "The simple fact is that ' the usual dangers of hcarsay are largely
nonexistent where the witness testifies at trial. California v. Greell. SlIprfl at 399
I u.s.
/ 55, 90 S.O. at /911. By hypothesi s in these situations. (he out-of-court declarant is now
a witness in-collrl where he or she is placed under oath, subject to cross-examination and
under observation by the finder of fact. See Common wealth v. Thil'kield, supra at 502
Pa. 542, 467 A,2d 323 (McDennott, 1. dissenting: 'the fact that [the oath and Cross-
examination requirement] are supp lied in u\e current trial defuses hearsay concerns and
provides the ract-finder with ample opportunity to determine truth.'). Indeed, the cross-
examination lo which a recanting witness is subjected will likely be meaningful and
vigorous since the witness is already 'on the spot' in having to explain the discrepancies
between earlier statements and direct testimony, or deny that the earlier stateme nts were
made at all." [d. 507 A.2d at 69 (In accord Commonweulth v. Mollelt, S A.3d 291 (pa.
Super, 2010); Commotr wenlth v. Charlloll, 906 A.2d 554 (pa. Super. 2006)
The recently amended Pennsylvania Rules of Evidence CPa.R.E,) provide in part
al Rule H03.1 "The following statements arc not excluded by the rule against hearsay if
the declarant testifies and is subject to cross-examination about the prior statement:
"(1) Prior Inconsistent S tatcmcnt of Declar:mt-W irness. A prior statement by a
declarant-witness that is inconsistent with the declarant-witness 's testimony and: ... (B) is
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a writing signed and adopted by the declarant.. ...(2) Prior Statement of Identification
by Declarant-Witness. A prior statement by a dedamnt·witness identifying a person or
thing, made after perceiving the person or thing, provided that the declarant-witness
testifies to the making of the prior statement."
The only witness to identify Defendant as thc driver was Seagull Mok. Neither
the victim of the shooting, Mr. Members, nor his companion, Nasir, was able to identify
the drive r of the car involved. Mr. Dum's testimony that he received a eall from Mr.
Mok telling him that, Defendant. his cousin, had been in front of his house looking rOT
him and not to come out because of gun shots clearly relates to the identity of one of the
perpetrators. (N.T., 2127/2013. pgs. 193, 194, 202) Mr. Oum 's testimony Ulal Mr. Mok
had seen lhe car involved in the shooting and could identify its occupants is clearly
admissible pursuant to Pa.R.E. 803.1(2).
Detective Park testified that b.e took a signed written statement from Mr. Qum on
November 2, 2011 , shortly afier Mr. Members was shol. (N.T., 212812013, pgs. 81 , 84)
Detective Park also testified that when he asked him what he kzlCW about the shooting
Mr. Own responded that he had received a phone call from Mr. Mok who told him:
"Kinika Dum and another Asian guy named Sam came around in a black I'fonda Accord
to the 7400 block of Buist A venue and asked for me . Seagull said they didn't say why
they were looking for me, but Seagull told them that he didn't know where I was. Seagull
Ihen said that Sam shouted out from the passenger's side window, 876 A.2d 1002,
1006 (Pa. Super. 2005) "An abuse of discretion is not merely an error in judgment, but
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an 'overridi ng misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the resulL or bias, prejudice, ill-will or par.1iality, as shown by the
evidence or the record.'" Commonwealth v. Flamer, 53 A.3d 82, 86 (pa. Super. 2012)
citing Commollwealtft v. Cascarfio, 981 A.2d 245, 249 (pa.Super.2009) OUT Superior
Court in Commollllleoltl, v. fo/tIIson, 758 A.2d 166, 173 (pa. Supcr. 2005), held: "The
basic requisite ror the admission of any evidence in a case is that it be competent and
relevant. lbough relevance has nol been precisely Or universally defined, the l:ourts of
this Commonwealth have repeatedly stated that evidence is adm issible if, and only if, the
evidence logically or reasonably tcnds to prove or disprove a material fact in issue, tends
to make such fact more or less probable, or affords the basis fo r or supports a reasonable
inference or presumption regarding the existence of a material fact." (internal citations
omillcd)
Pa.R.E. at Rule 403 provide that "The court may exclude relevant evidence if its
probative value is ouLweighed by a danger of one or more of the following: Wlfair
prej udice, confusing the issues, mjsleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence. "Evidence is not unfairly prejudicial simply
because it is harmful La the defendant's case. Rather, excl usion of evidence on this
ground ' is limited to evidence so prejudicial that it would inflame the jury to make a
decision based upon something other than the legal propositions relevant to the case ... '
Commonwealth v. Foley, 38 A.3d 882, 891 (Pa. Super. 2012)
The testimony of both Me. Own and Detective Park was obvious ly " harmful to
Defendant but was not " unfairl y prejudicial" to him. This is particularly so in light of the
admission into evidence, without objection, of transcripts of phone conversations of
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Defendant's co·defeodan, recorded while he was incarcerated awaiting lrial. In the first
transcript, Defendant tells the party on the other end: "Yeah. The bull , Seagull from
Soulh Philly. He came thc first time, but he switched it. He made a different statement,
bUll can' t Jet him show Up and shit." (N.T., 2128/2013, pg. 108) The transcript from yet
another conversation revealed:
Defendant: "Fucking nut ass Seagull made a statement on me, 100."
Male: "Yeah? Want me to go and talk to the nigga? Want me to go talk to
him?"
DefemhlOt: "We already got somebody to talk to him, but that bitch ass
nigga came to court last time, but now we're trying to get somebody to talk
to him to tell him not to come to court."
Male: "Yeah, they' ll do it." (Inaudible.)
Ocfcod:lUt: "Man, in do get out of here. I'mma ruck that nigga up ."
(N.T., 2128/2013, pg. 109)
II is clear from the transcripts that Defendant was attempting to prevent Mr. Mok from
testifying or, at me very least, influence his testimony as well as that orMr. Qum. The
testimony of Mr. Qum , which was corroborated by that of Detecti ve Park, is relevant to
the identity of the occupants of the Honda and portrays Mr. Mok' s present sense of his
observations before anyone had an opportunity lO intimidate him or otherwise innuence
his testimony.
n. TESTIMONY OF Dn'EN J)A:'fPS PRIOR BAD ACTS WAS
ADMISSABLE.
Defendant in his second complaint states, "The COlli1 erred by aJlowi ng me
Commonwealth to elicit testimony from Vyreak: Qum about seeing Defendant with a
handgun in a prior, unrelated incident." Defendant's complaint is without merit.
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Pa.R.E. Rule 404 provides in part: (b) Crimes, Wrongs or Otber Acts.
(2) ...... 11tis evidence may be admissible for another purpose, such as proving motive,
opportunity, inlent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. In a criminal case, this evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice. (3) Evidence of other crimes.
wrongs, or acts proffered under s ubsection (b)(2) of this rule may be admitted in a
criminal case only upon a showing that the probative value of the evidence outweighs its
potential for prejudice." In CommnmtJealllr v. il1elelldez·Rodriguez. 856 A.2d 1278,
1283 (Pa. Super. 2004) Ollr Superior Court held: "It is a'Ciomatic that evidence of prior
crimes is not admissible for the so le purpose of demonslrating a criminal defendant's
propensity to commit crimes. This rule is not without exception, however. Evidence may
be admissible in certain eirewnstanecs where it is re lcvant for somc other legitimate
purpose and not utilized solely to blacken the dcfendant's character." Evidence that
Defendant was seen in possesSion of a gWl prior to the shooting is "admissible, as it tends
to prove the means to commit the crime." Commrmweallh v. BrolVn, 538 Pa. 410, 42t ,
648 A.2d 1177, 1182 (1994) A weapon shown to have bccn in a defendant's possession
may be properly admitted into evidence even tbough it cannot be identified positively as
the weapon used in committing a cri me; it may tend to prove that the dcfendant had a
weapon si milar to the one used." Commollwealllr v. Lark, 3 16 Pa. Super. 240, 254, 462
A.2d 1329. 1336-37 (1983) There is no "bright-line" I.hreshold determining when the
prior acts become too remote in time to be admi ssible pursuant to Rule 404.
Commntlwealtll v. Reed, 990 A.2d 1158, 1168 (Pa. 2010)
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•
On direct examination Vyreak Own testi fied that he had secn Defendant possess a
gun prior to the shooting of Mr. Members but equivocated as to when this occurred.
(N.T., 2128/20 13 , pg. 223) (0 his written statement to Detective Conway he clead)' stated
that he had seen Defendant with gun approximately three weeks prior to the shooting.
(N.T., 212812013, pg. 223) Defendant' s possession of a gun within a period of three
weeks prior to the shooting is sufficiently close in time to demonstrate his intent, the
absence of mistake or accident, and a common scheme or plan.
Ill. TESTIMONY AS TO WITNESS' STATE OF MIND WAS ADMISSABLE.
Defendant ill his fourth compluinl states; "The Court' erred by aJlowing the
Commonwealth to elicit testimony from Seagull Mok about Defendant' s brother telling
him to nolcome to court." Defendant 's complaint is without merit.
"The term ' hearsay' is defined as an out-of-court statement, which is offered in
evidence to prove the truth of the maEtcr asserted . ... Pa.R.E.801(c). Hearsay statements
are generally inadmissible unless they fall under an enumerated e.xccption, Pa.R.E. 802.
An out-ot:.court statement is not hearsay when it has a purpose other than La convince the
fact finder oftlle truth of the statement." CommoJlwealt" v. BlIsa"et, 54 A,3d 35, 68·69
(Pa, 2012) (internal citations om itted)
Prior to presenting testimony of the second day of trial, February 28 , 2013, the
Commonwealth requested that the Court issue a beneh warrant to secure the presence of
Mr. Mok the following day. Counsel tor the Commonwealth, Mr. McCool, advised the
Court thaI, although Mr. Mok had agreed to appear that day he was not present in the
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courtroom. He further adviscd the Court that when he sent police officers to bring him to
court, they were advised by his wife that she hadn 't seen him. (N.T" 212812013, pg. 5)
When Me. Mok did appear on the third day of lriaJ, March t, 20 13. he testified
that he failed to appear the previous day because he W'd S "scared" and that he had been
told not to come to court by Defendant's "brother" and "a couple other friend"." (N.T.,
212812013, pgs. 6, 7) TIle Commonwealth offered this testimony not for the truth of the
matter but for cohis slate of mind, how hc's feeling, what pressure is being placed on him
not to be here today." (N.T., 212812013, pg. 6)
This testimony was espeCially relevant in light of the evidence of the phone
transcripts admitted the previoLts day which specifically mentioned Mr. Mok. On
admilting these transcripts , the Court cautioned the jury: "Just a reminder, whilt you just
heard is only coming from one defendant. Il's only about the one defendant You can
really only use it with regard to the one defendant. Those are not the words of Kinika
Oun1, ilIld it wasnrt introduced as evidence against Kinika Qum. Tt's only evidence
against Samncang Sin."
Ill. COUNSEL FOR THE COMMONWEALTH'S COMMENT DID NOT
WARRANT A MISTRIAL.
Defendant in his fifth complaint states, "The prosecutor committed prosecutorial
misconduct Ulat warranted a mistrial when during closing argument he impermissibly
conuuented on Defendant's burden of proof and right to remain silent." Defendant's
complaint is without merit.
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A defendanfs Motion for a Misuial is provided for in Pennsy lvania Rules of
Criminal Procedure (Pa.R.Crim.P.) at Rule 605 (8) which provides: "When an event
prej udicial to the defendanl occurs during trial only the defendant may move fo r a
mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge
may declare a mistrial only for reasons of manifest necessity." "Every unwise or
irrelevant remark made in the co urse of the trial by a j udge, a witness, or counsel, does
noL compel the grantin g of a new trial. A new tria l is required when the remark is
prejudi cial ; that is. when it is of such a nature or substance or delivered in s uch a manner
that it may reasonably be sai d to have deprived the defendant of a fa ir and impartial
tria!." Commol/weallh v. Goosby, 450 Pa. 609, 301 A.2d 673 ( 1973).
The Superior Court of Pennsylvania bas discussed the issues to be considered in
the granting of a mistrial. [n Commonwealth Y. Hudson, 955 A.2d 103 1, 1034 (Pa.
Super. 2008), citing Commonwealth v. Tej eda, 834 A.2d 619, 623 (Pa. Super. 2003) our
Superior Court held that "A motion for a mistri al is within the discretion of the trial court .
[AJ mistrial (upon motion by one of the parties1 is required only when an incident is of
such a nature th at its unavoidable effect is to deprive tlle appellant of a fair and impartial
trial. II is within the trial court's discretion to determine whether a defendant was
prejudiced by the incident that is the bas is of a motio n tor a mistrial. On appeal, our
standard of review is whether the trial court abused that discretion. An abuse of
discretion is more than a n error of judgment. On appeaJ, the trial court will not be fo und
to have abused its discretion tmless the record discloses that the judgment exercised by
the trial court was manifestly unreasonable, or the result of partiality, prej udice, bias, or
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ill-will." Hudsoll concluded the "inquiry into whether prejudice has accrued is
necessarily a fact specific one." [d., at 1034.
Our Superior Court, in Commoll wealth v. Bracey. 831 A.2d 678, 682 (Pa. Super.
2003). citing Commolllvealtfl I'. S tilley, 455 Pa. Super. 543, 689 A.2d 242. 250 (Pa.
Super. 1997), held that "A mistrial is an 'ex lreme remedy ... [that] , ,. must be granted
only when an incident is of such a nature that its lUlavoidable effect is to deprive
defendant of a f..1ir trial. ' A trial court may remove taint caused by improper testimony
through curative instructions. Courts must consider all surrounding circumstances before
finding that curative instructions were insufficient and the extreme remedy of a mistrial is
required, The circumstances which the cowt must consider include whether the improper
remark was intentionally elicited by the Commonwealth, whether the answer was
responsive to the question posed, whether the Commonwealth exploited the reference,
and whether the curalive instruct jon was appropriate," (Citations omined.)
"Because a criminal trial is an adversary proceeding, the prosecution as well as
the defense must be allowed rea.<;;onablc latitude in presenting its case to the jury."
Commollwe.alth v. Paddy , 800 A.2d 294, 316 (pa, Super. 2001) A prosecutor is
generally allowed to vigorous ly prescnt and argue his case, as long as the comments are
supported by evidence and contain inferences which are reasonably derived from that
evidence. It is well-settled law mat attorneys' statements or questions at trial are not
evidence. The foclls of this Court's consideration of claims regarding prosceutonui
misconduct is to detennine whether the defendant was deprived of a fair trial and not
whether the defendant was deprived of a perfect trial." Commo" wealth v. Kemp , 753
A.2d 1278, 1282 (Pa. 2000) Our Supreme Court laler explained that " proseculorial
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misconduct docs not occur unless the unavoidable effect of the comments at issue was to
prejudice the jurors by fonning in their minds a fixed bias and hostility toward the
defendant, thus impeding their ability to weigh the evidence objectively and render a true
verdict." Commonwealtlt v. Cuevas, 832 A,2d 388, 394 (Pa. 2003) Furthermore. the
"Commonwealth may 'fairly respond' to closing remarks made by the defense."
Commollweal/II v. Brown, 449 Pa Super. 346, 357-58, 673 A.2d 975, 981 (Pa. Super.
1996) Additionally, "comments by a prosecutor, which would otherwise be in error, have
been held not to be erroneous if made in response to a defense argument." BrowlI, Td.,
673 A.2d at 981 , citing COl1ullo",,,enltlt v. Fielder, 417 Pa. Super. 455 , 612 A2d 1028
(Pa. Super_ 1992)
Defendant in his complaint mischaracterizes counsel for the Commonwealth's
closing argument. During his closing argument counsel for Defendant stated: "Four
wilnesses, half or that is two. 'lbey called two. They called Nasir and Quenzel." (N.T.,
3/ 112013, pg. 86) In response to tbis comment in his closing argument, counsel for the
Commonwealth stated:
"Ladies and gentl emen, I want to just briefly address a couple things that
tlll; derense attorney said to you about the witnesses, that 1 only called --
told you ha1f the story ....... you know, it's so funny and it's so
disingenuous for lhe defense attorney to get up here and say that, that I
gave you half the story as if somehow he's handcuffed. Folks, the burden
of proof is on me. It never shifts. It's my burden to prove my case. BUL
you know what, folks, it is --it's fairness. It's all aboUl fairness. If 1 don't
call witnesses, there's nothing preventing the defense aLtorney from
subpoenaing people into the courtroom. If he thinks I'm not telling the
whole story or I'm not giving you the whole truth or I'm misrepresenting
something or hiding something, he can call witnesses. He could have
called them. He could have called lhem_" (N T, 31112013, pgs. 117, liS)
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At thisjum·ture
. counsel for Defendant objected. In response, the Court instructed
the jury:
"THE COURT: You should understand that what the DA is saying and
that the law says, is that the defense nevcr has to call any witnesses, never
has to produce any evidence. (NT., 31112013, pg. 118)
Counscl for Defendant did not object further to the Court's instruction.
It is dear that in his closing counsel for the Commonwealth never intended for the
jul'}' to believe that the burden of proof had somchow shifted to Defendant. In prefacing
his remarks he made it clear that "the burden of proof is on me. It never shifts. It's my
burden to prove my case." The Court's cW1 A.2d 1281 (po. Super. 1983) 18 Pa.C.S.A. § 905 provides in
part: "Grading of criminal attempt, solicitation and conspiracy (a) GRADfNG.- Except
as otherwise provided in this title, attempt, solicitation and conspiracy are crimes of the
same grade and degree as the most serious offense which is attempted Or solicited or is an
object of the conspiracy." Furthennore, 18 Pa.C.S.A. § 906 provides: "A per.son may not
be convicted of more than one of the inchoate crimes of criminal attempt, eMina!
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solicitation or criminal conspiracy for conduct designed to commit or to culminate in the
conunission of the same crime."
At the conclusion of his trial, Derendant was found guilty of both attempted
murder and conspiracy to comm it murder all arising from the single act of the shooting of
Mr. Members which resulted in serious bodily injury. 18 Pa.C.s.A. § 1102 provides in
part: "(c) A{tempt~ solicitation and conspiracy.--Notwithstanding section 1103(1)
(relating to sentence of imprisorunent for felony), a person who has heen convicted of
attempt, solicitation or conspiracy to comm it murder. murder of an unborn child or
murder of a law enforcement officer where serious bodily injury results may be sentenced
to a term of imprisoruncnt which shall be fixed by the court at not more than 40 years.
Where serious bod ily if\jury does not result, the person may be sentenced to a term of
imprisonment which shaH be fixed by the court at not more than 20 years: " Defendant
was subsequently senlenced to incarceration in a s tate correctional institution fo r a period
of 3 to 8 years on the charge of attempted murder a.. well as a consecutive tenn of
eonfmernent of 2 to 5 years on the charge of conspi racy to commit murder, for a totai
combined period of incarceration of 5 to 13 years on these two charges, well within tne
maximwn allowable on either one of these charges. 10 vie'.'1 of these circwnstances, the
Court recommends that this matter be remanded only ror the purpose of resentencing
Defendant.
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•
CONCLUSION
The Court finds that its evidentiary rulings are supported on the record. 'lne
Court also finds thal Defendant's sentencing on two inchoate offenses is improper and
recommends that this matter be remanded for re-sentencing.
BY THE COURT:
Fcbruary7,20l4
ES J. CUNN GIlAM, ill
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