Com. v. Bradley, K.

J-S57037-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P.65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KHALIL BRADLEY, :
:
Appellant : No. 2304 EDA 2017
Appeal from the Judgment of Sentence February 21, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002005-2016
BEFORE: PANELLA, J., PLATT, J.* and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 21, 2019
Khalil Bradley (Appellant) appeals from the judgment of sentence
entered February 21, 2017, after he was found guilty of first-degree murder,
carrying a firearm without a license, carrying a firearm on a public street in
Philadelphia, possessing an instrument of a crime, and recklessly
endangering another person. We affirm.
As we write for the parties, we need not restate the underlying facts of
the case herein. Suffice it to say that the factual summary offered in the
trial court’s opinion accurately summarizes the evidence offered at trial.
See Trial Court Opinion, 1/22/2018, 2-4. Briefly, Appellant was charged
with, inter alia, first-degree murder in the shooting death of Jai Rivera. Id.
at 3. Rivera, who sold drugs on the same block as rival drug dealers, was
* Retired Senior Judge assigned to the Superior Court
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shot fifteen times by Appellant, a supposed “enforcer” for the rival drug
dealers. Id. at 2-3.
Following a jury trial, Appellant was found guilty of the aforementioned
crimes. On February 21, 2017, Appellant was sentenced to a mandatory
term of life in prison for first-degree murder, plus an aggregate consecutive
term of six and one-half to 19 years’ imprisonment on the remaining counts.
Appellant timely filed a post-sentence motion alleging, inter alia, that
the jury’s verdict was against the weight of the evidence. Post-Sentence
Motion, 3/1/2017, at 2 (unnumbered). On June 21, 2017, the trial court
denied Appellant’s motion. Appellant then timely filed a notice of appeal.
On July 20, 2017, the [trial] court issued an order pursuant to
Pa.R.A.P. 1925(b) directing [Appellant] to file a concise
statement of errors complained of on appeal by August 10,
2017. On September 11, 2017, after [Appellant] failed to timely
file a Rule 1925(b) statement, the [trial] court filed an opinion
finding that all of [Appellant’s] claims had been waived. On
September 18, 2017, the Superior Court ordered th[e trial] court
to determine if counsel for [Appellant], Evan T.L. Hughes,
Esquire had abandoned his client, and to take action, as
necessary, to protect [Appellant’s] appellate rights. Pursuant to
that order, the [trial] court held a hearing on October 13, 2017.
Following the hearing, the [trial] court relieved Mr. Hughes as
counsel and appointed new counsel, Gary S. Server, Esquire to
represent [Appellant] on appeal. On November 14, 2017, the
Superior Court remanded this matter for [Appellant] to file a
Rule 1925(b) statement and for th[e trial] court to file a
supplemental opinion.
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Trial Court Opinion, 1/22/2018, at 1-2 (unnecessary capitalization omitted).
Both the trial court and Appellant complied with this Court’s order and this
case is now ripe for disposition.1
On appeal, Appellant argues that: (1) the verdict was against the
weight of the evidence, and (2) a statement made during the
Commonwealth’s closing argument amounted to prosecutorial misconduct.
Appellant’s Brief at 6. We review Appellant’s issues mindful of the following.
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
1
Also before this Court’s is Appellant’s “Unopposed Motion for Leave to have
the Panel Decide the Merits of the Briefs Previously Submitted.” By way of
further background, prior to this Court’s review of Appellant’s appeal but
after the filing of Appellant’s brief, Attorney Server filed a motion to
withdraw as court-appointed counsel, averring, inter alia, that he was unsure
if Appellant was still entitled to court-appointed representation because
Attorney Server had recently become aware that Appellant had obtained
private counsel in preparation for potential post-conviction proceedings.
Motion to Withdraw Court Appointed Counsel, 9/30/2018. Upon review of
counsel’s motion, this Court remanded this matter “to the trial court to
inquire if Appellant’s in forma pauperis status has changed and determine if
Appellant is still eligible for court-appointed counsel.” Order, 10/12/2018
citing Pa.R.A.P. 555.
On remand, the trial court held a hearing and determined that
Appellant was no longer entitled to court-appointed counsel. Notice of
Findings and Action Taken Pursuant to Superior Court Remand, 11/9/2018,
at 1 (unnumbered). The trial court provided Appellant 60 days from the
date of the order to obtain alternative counsel. Id. at 2. On November 21,
2018, Attorney Daniel Silverman entered his appearance. On January 10,
2018, Appellant, through Attorney Silverman, filed the aforementioned
motion. Upon review, we grant Appellant’s motion and address the merits of
the claims set forth in Appellant’s counseled appellate brief filed by Attorney
Server prior to his withdrawal.
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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 conviction
that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of
justice.
However, the exercise of discretion by the trial court in
granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is not unfettered. The
propriety of the exercise of discretion in such an instance may be
assessed by the appellate process when it is apparent that there
was an abuse of that discretion.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal
citations omitted). See also Commonwealth v. Britton, 134 A.3d 83, 86
(Pa. Super. 2016) (“The trier of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to believe all,
part or none of the evidence.”) (citation omitted). “A motion alleging the
verdict was against the weight of the evidence should not be granted where
it merely identifies contradictory evidence presented by the Commonwealth
and the defendant.” Commonwealth v. Chamberlain, 30 A.3d 381, 396
(Pa. 2011).
Regarding claims of prosecutorial misconduct, “[i]f the defendant
thinks the prosecutor has done something objectionable, he may object, the
trial court rules, and the ruling—not the underlying conduct—is what is
reviewed on appeal.” Commonwealth v. Tedford, 960 A.2d 1, 29 (Pa.
2008).
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With specific reference to a claim of prosecutorial misconduct in
a closing statement, it is well settled that in reviewing
prosecutorial remarks to determine their prejudicial quality,
comments cannot be viewed in isolation but, rather, must be
considered in the context in which they were made. Our review
of prosecutorial remarks and an allegation of prosecutorial
misconduct requires us to evaluate whether a defendant
received a fair trial, not a perfect trial.
Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (internal
citations and quotation marks omitted). Failure to object to the alleged
misconduct will result in waiver on appeal. See Tedford, supra. See also
Commonwealth v. Poindexter, 447 A.2d 1387, 1390 (Pa. Super. 1982).
Upon our review of the certified record, the parties’ briefs, and the
relevant law, we conclude that the opinion of the Honorable Glenn B.
Bronson comprehensively and correctly addresses and disposes of
Appellant’s issues and supporting arguments and evidences no abuse of
discretion or errors of law. See Trial Court Opinion, 1/22/2018, at 4-9
(concluding it did not abuse its discretion in finding the jury’s verdict was not
against the weight of the evidence and that it was within the province of the
jury as fact-finder to resolve conflicting testimony and make credibility
determinations); Id. 9-10 (finding Appellant’s failure to object to the
prosecutor’s remarks at trial resulted in waiver).
Accordingly, we adopt the trial court’s opinion, filed on January 22,
2018, as our own and, based upon the reasons stated therein, affirm
Appellant’s judgment of sentence. The parties shall attach a copy of the trial
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court’s January 22, 2018 opinion to this memorandum in the event of future
proceedings.
Judgment of sentence affirmed.
Judge Platt did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/19
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,. FILED
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,. IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA JAN 2 2 2018
CRIMINAL TRIALDIYISION
Office of Judicial Records
Appeals/Post Trial
COMMONWEAL TH OF CP-51-CR-0002005-2016
PENNSYLVANIA
,·-
v. CP-51-CR-000200:,.2016 Comm. v. Bradley, t863 A.2d 1185, 1191 (Pa. Super. 2004), appeal denied, 878 A.2d 864(Pa. 2005) (quoting Commonwealth v. Hunter, 554 A.2d 550, 555) (Pa. Super. 1989)).
Moreover, credibility determinations are solely within the province of the fact-finder, and "an
appellate court cannot substitute its judgment for that of the finder of fact." Commonwealth v.
Taylor, 63 A.3d 327, 330 (Pa. Super. 2013) (quoting Commonwealth v. Shaffer, 40 A.3d 1250,
1253 (Pa. Super. 2012)). In considering a claim that the trial court erred in refusing to find that a
verdict was against the weight of the evidence, "appellate review is. limited to whether the trial
4
court palpably abused its discretion in ruling on the weight claim." Id (quoting Shaffer, 40 A.3d
at 1253).
Here, defendant offers four specific arguments in support of his weight of the evidence
claim. First, he avers that there was credible eyewitness testimony that he was not the shooter.
Statement of Errors at 1 l. It is true that two defense eyewitnesses testified that defendant was
not the shooter. N.T. 2/8/17 at 157, 201-202. First, Donnell Booker testified that he was in a car
on Dauphin Street, and then went into a house on the corner before the shooting occurred. N.T.
2/8/ 17 at 151. Once he was in the house, he heard gunshots. Id. He claimed that he could see
the shooter's face and that the shooter was not defendant. N.T. 2/8/17 at 151-152. However,
Booker gave a signed statement to a defense investigator about two weeks before the trial. N.T.
2/8/17 at 146-148. In that statement he admitted that he did not look out the window until after
the shooting stopped. N.T. 2/8/17 at 176-178. He was not a credible witness.
Second, Jerome Maynard testified that he was standing on the street prior to the shooting,
when he observed a male walk up behind the victim and start shooting. N.T. 2/8/17 at 201. He
.claimed that while the shooter looked familiar to him, he did not know defendant. Id. Therefore,
he was "1000 percent" sure that defendant was not the shooter. N.T. 2/8/17 at 202. Maynard
. came forward with this information only the day prior to his testimony, claiming that he was
asked to testify after a trial spectator, Lee Robinson, saw him in the video of the incident when it
was played at trial. N.T. 2/8/17 at 209-210. However, all spectators at trial provided photo
identification to the court staff, and a review of the identifications revealed that no one named
Lee Robinson was ever present at trial. N.T. 2/8/17 at 223. .
. .
Accordingly, the jury was free to disregard both Booker and Maynard's testimony as
incredible and had ample reason to do so. See Taylor, 63 A.3d at 330. Moreover, there was
5
compelling evidence that defendant shot and killed Rivera. First, the Commonwealth presented
the statement of eyewitness Kareema Hill, who called 911 following the shooting. N.T. 2/7/17 at
179-192. Hill told detectives that she was walking onto Dauphin Street when she heard gunshots
and saw the shooter firing shots at Rivera. N.T. 2/7/17 at 179-181. She ran away from the
scene, and as she was running, she looked back and saw the shooter running in the same
direction. N. T. 2/7 /17 at 182. Hill identified defendant as the shooter in a photo array,
remarking that she was "very confident. Got a real good look at him." N.T. 2/7/17 at 190;
2/8/17 at 85-86.
It is true that at trial Hill recanted the majority of the statement and identification that she
had made to the police. N.T. 2/7/17 at 172, 186, 191. However, her signed statement was
admitted at trial during her testimony. N.T. 2/7/17 at 177-188. This statement was admissible
for its truth as a prior inconsistent statement that was signed and adopted by the declarant. See
Pa.R.E. 803. l (l )(b ). It is well-established that where a witness at trial recants a statement she
made to police, the fact-finder is "free to evaluate both the [witness's] statement to police as well
as [her] testimony at trial recanting that statement, and [is] free to believe all, part, or none of the
evidence." Commonwealth v. Hanible, 836 A.2d 36, 39 (Pa. 2003). Such recantations are
"notoriously unreliable." Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009).
The Commonwealth also presented additional identification testimony that corroborated
Hill's identification. As mentioned above, at trial, a video recording of the entire incident was
played for the jury. N.T. 2/7/17 at 19-20; N.T. 2/8/17 at 71; see Commonwealth Exhibit C-29.
Nakia Abdullah, Rivera's girlfriend, identified defendant as the shooter from the video. N.T.
2/7/17 at 77, 98. Abdullah had known defendant for years and was able to identify him as the
· shooter from his body language and walk. N.T. 2/7/17 at 98-99. In addition, Nafis Brown,
6
defendant's friend, also identified defendant as the shooter from the video. N.T. 2/7/17 at 121,
133-134. He was able to identify defendant from his clothes and walk. N.T. 2/7/17 at 134.
Brown also testified that he was with defendant when defendant and Little Rob discussed their
plot to kill Rivera. N.T. 2/7/17 at 125-126. In addition, Brown testified that he called defendant
after the murder, and defendant told him that Rivera had been killed, stating: "You know how I
work." N.T. 2/7/17 at 124. Given this compelling evidence that defendant was the shooter, the
contrary testimony of the defense witnesses did not cause the jury's verdict to shock the
conscience of the Court.
Defendant next claims that the verdict was against the weight of the evidence because
"there was credible evidence that Nafis Brown possessed a firearm similar to the .40 caliber
Glock used to kill the victim[.)" Statement of Errors at� 1. It is true that the murder weapon
was determined to be a .40 caliber Glock-type weapon, and that at trial, defendant introduced a
picture of Brown holding a .40 caliber Glock. N.T. 2/8/l 7 at 43, 53-54, 58-63; see also Defense
Exhibit D-2. In addition, one week after the shooting, Brown was pulled over driving a van that
was involved in the murder, and a .40 caliber gun was found in the vehicle. N.T. 2/8/17 at 98-
100. However, forensic analysis demonstrated that the recovered gun was not the murder
weapon. N.T. 2/8/17 at 54, 100. Accordingly, Brown's possession of that weapon did not
undermine the Commonwealth's evidence.
Defendant next attacks the weight of the evidence on the ground that Nafis Brown was
"caught driving the get away [sic] vehicle a few days after the murder." Statement of Errors at il
1. It is true, as stated above, that one week after the murder, Brown was pulled over in a van that
was involved in the murder. In particular, video surveillance of the murder depicted the van at
the scene of the murder at the time of the shooting. N.T. 2/8/17 at 49, 103. The video also
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'showed Little Rob, who had plotted the killing along with defendant, talking to Rivera as Rivera
was shot, and then showed Little Rob hobbling over to the van after the shooting, apparently
having been accidentally shot by defendant. N.T. 2/8/17 at 74. The van was then captured on
video leaving the scene and dropping Little Rob off at Temple University Hospital's Emergency
Room. N.T. 2/8/17 at 74, 103-104.; N.T. 2/7/17 at 29-30. Brown, however, had a plausible
explanation for being in possession of that van. He denied having any knowledge that the
· vehicle was used in a homicide, and stated that he had borrowed the van from Little Rob because
his own car was unavailable. N.T. 2/8/17 at 100, N.T. 2/7/17 at 138. Detectives determined that
the van was riot registered to Brown, but rather, the registered owner was Little Rob's brother,
Kareem Myers. N.T. 2/8/17 at 99. Hence, the evidence of Brown being arrested in the van one
week after the homicide did not, as defendant now claims, create doubt about the compelling
· . evidence demonstrating that defendant, and not Brown, was the shooter.
Finally, defendant claims that the verdict was against the weight of the evidence because
"defendant was identified from unclear video images and by unduly suggestive and inherently
unreliable identification procedures and where the 9 I 1 caller Kareema Hill who knew the
defendant did not identify the defendant by name during the call." Statement of Errors at� 1. It
is true that defendant was identified as the shooter by Nafis Brown and Nakia Abdullah from
video footage. However, as discussed above, both of these witnesses were unequivocal in their
identifications. N.T. 2/7/17 at 98-99, 133-134. Moreover, Abdullah had known defendant for
years and had lived on the same block with him. N.T. 2/7/17 at 98. Brown had grown up with
defendant and was a close friend. N.T. 2/7/17 at 121. Accordingly, the identifications of these
two witnesses were strong evidence.
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In addition, as discussed above, Kareema Hill, an eye-witness, identified defendant in a
photo array, stating that she was confident in the identification because she got a good look at the
shooter. N.T. 2/7/17 at 190; 2/8/17 at 85-86. Moreover, when interviewing Hill, detectives
employed a double blind identification procedure, having a person with no information about the
murder investigation show Hill the photos. N.T. 2/8/17 at 83. Because the detective showing the
array did not even know who the suspect was, there was no possibility that the procedure would
be suggestive. Id.Finally, Hill's credibility was not undermined by her failure to identify defendant by
name when she called 9-1-1. Hill credibly testified that her sole contact with defendant prior to
the shooting was seeing him around the neighborhood a few times. N.T. 2/7/17 at 197-198, 203-
204. Hence, her failure to identify defendant by name when she called 9-1-1 was fully consistent
with the evidence in the case.
Accordingly, the evidence fully supported the jury's verdict, and therefore, the Court did
not abuse its discretion in denying defendant's motion for a new trial.
B. · Prosecutorial Misconduct
Defendant nextalleges that "[tjhe prosecutor engaged in misconduct when she expressed
. .
her personal opinion during closing argument that defense eyewitness evidence from Jerome
Maynard 'was the most ridiculous testimony I have ever heard. It was so ridiculous that it
reminded me to when I was back in law school.' N.T. 2/10/17, 61, line 9-11." Statement of
Errors at� 2.
A review of the record reveals that defendant did not object to this, nor to any other
portion of the Commonwealth's closing argument at trial. See N.T. 2/10/17 at 58-107. Because
defendant raises his claim for the first time on appeal, it is waived. See Pa.R.A.P. 302(a)
9
("Issues not raised in the lower court are waived and cannot be raised for the first time on
appeal."); Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015).
III. CONCLUSION
For all of the foregoing reasons, the Court's judgment of sentence should be affirmed .
. BY THE COURT:
GLENN B. BRONSON, J.
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· Commonwealth v. Khalil Bradley CP-51-CR-0002005-2016
Type of Order: 1925(a) Opinion
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in the
manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:
Defense Counsel/Party:
Gary S. Server, Esquire
52103 Delaire Landing
Philadelphia, PA 19114
Type of Service: () Personal (X) First Class Mail () Other, please specify:
District Attorney(s ):
Lawrence S. Krasner, Esquire
District Attorney of Philadelphia
Philadelphia District Attorney's Office
Three South Penn Square .
Philadelphia, PA 19107
Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify:
Additional Counsel/Party:
Joseph D. Seletyn, Esquire
Pro tho notary
Office of the Prothonotary - Superior Court
530 Walnut Street, Suite 315
Philadelphia, PA 19106
Type of Service: () Personal (X) First Class Mail () Other, please specify:
Dated: January 22, 2018