Com. v. Muhammad, F.

J-A18035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
FAYSAL SALIM MUHAMMAD
Appellant : No. 1224 WDA 2019
Appeal from the Judgment of Sentence Entered July 11, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002604-2018
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 13, 2021
Appellant Faysal Salim Muhammad appeals from the judgment of
sentence following a jury trial and convictions for attempted homicide,
aggravated assault, and other related offenses.! Appellant asserts that the
trial court erred in admitting unfairly prejudicial testimony of his identity and
challenges all of his convictions based on insufficient evidence identifying him
as the shooter. We affirm.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 11/18/19, at 1-15. On July 11, 2019, the trial
court sentenced Appellant to an aggregate sentence of twenty-four to forty-
1 See 18 Pa.C.S. §§ 901(a), 2501(a), 2701(a)(1), 907(b), 6105(a)(1),
6106(a)(1).
J-A18035-20
eight years’ imprisonment. Appellant did not file a post-sentence motion but
timely appealed. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)
statement and amended statement.
Appellant’s amended Rule 1925(b) statement asserted that the
Commonwealth failed to present sufficient evidence to convict him of the
above crimes. Am. Rule 1925(b) Statement, 10/14/19, at 2 (unpaginated).
Among other items, Appellant claimed that the trial court erred by admitting
the testimony of corrections officers under Pa.R.E. 403. Id. at 3
(unpaginated). The trial court filed a responsive opinion on November 18,
2019.
Appellant raises the following issues, which we reordered for ease of
disposition:
1. Whether the trial court abused its discretion in permitting
testimony relating to the identification of . . . Appellant that was
contrary to the protections of Pennsylvania Rule of Evidence 403?
2. Whether the Commonwealth failed to present sufficient
evidence and testimony to prove beyond a reasonable doubt...
Appellant’s guilt of criminal attempt-criminal homicide,
aggravated assault, possession of a weapon, possession of a
firearm prohibited, and firearms not to be carried without a
license?
Appellant’s Brief at 4.
2 Appellant filed a motion for permission to file an amended Rule 1925(b)
statement, which the trial court granted on September 24, 2019. Appellant
timely filed an amended Rule 1925(b) statement on October 14, 2019.
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In support of his first issue, Appellant argues that the trial court abused
its discretion by admitting evidence in violation of Pennsylvania Rule of
Evidence 403. Id. at 18. Specifically, Appellant objects to the testimony from
Officers Johnston and Bolt about how they recognized him. Id, at 19-20. In
Appellant’s view, the testimony, although relevant, was “unfairly prejudicial
and outweighed the probative value of such.” Id. at 21. “Appellant argues
that the testimony offered by the corrections officers was unfairly prejudicial
as it gave the jurors unnecessary pieces of information that easily could have
been used to connect the dots that the witnesses knew . . . Appellant because
he was incarcerated.” Id. Appellant suggests that the Commonwealth could
have limited the scope of its questions to only his identification or “presented
an actual witness to the shooting that was able to identify” him.” Id.
(emphasis omitted).
With respect to the admissibility of evidence:
the admissibility of evidence is within the sound discretion of the
trial court and we will not reverse absent an abuse of discretion. .
. 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 unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
Relevance is the threshold for admissibility of evidence; evidence
that is not relevant is not admissible. Evidence is relevant if it
logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable or supports a
reasonable inference or presumption regarding a material fact.
Our Rules of Evidence provide the test for relevance: evidence is
relevant if (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact
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is of consequence in determining the action. Further, the court
may exclude relevant evidence if its probative value is outweighed
by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.
Commonwealth v. Leap, 222 A.3d 386, 390 (Pa. Super. 2019) (citations
omitted and formatting altered), appeal denied, 233 A.3d 677 (Pa. 2020); see
also Pa.R.E. 403.
Here, we initially note that Appellant waived this issue by withdrawing
his initial objection at trial and by failing to object on the specific basis he now
raises On appeal concerning the Commonwealth's examination of Officers
Johnston and Bolt.2 Moreover, even if Appellant objected to the subject
examination at trial, we would affirm on the basis of the trial court’s reasoning.
See Trial Ct. Op. at 15-16.
3 See N.T. Trial, 5/14/19, at 77. Pennsylvania Rule of Evidence 103 provides
that in order to preserve an evidentiary issue for appellate review, a party
must timely object and state “the specific ground, unless it was apparent from
the context.” Pa.R.E. 103(a)(1)(B); see also Pa.R.A.P. 302(a). Instantly,
initially Appellant objected to any mention of “him being previously
incarcerated in Erie County.” N.T. Trial, 5/14/19, at 74. After discussion, the
Commonwealth agreed to instruct Officers Johnston and Bolt from testifying
that Appellant was an inmate, and Appellant’s trial counsel said, “[t]hat’s fine.”
Id. at 77. Appellant therefore did not preserve his objection for appellate
review. See Pa.R.E. 103 (requiring a party to timely object in order to
preserve evidentiary issue for appellate review); Pa.R.A.P. 302(a) (“Issues not
raised in the trial court are waived and cannot be raised for the first time on
appeal”); Commonwealth v. Lopez, 57 A.3d 74, 81-82 (Pa. Super. 2012)
(“If counsel states the grounds for an objection, then all other unspecified
grounds are waived and cannot be raised for the first time on appeal”
(citations omitted)).
J-A18035-20
Second, Appellant challenges the sufficiency of evidence for his
attempted homicide conviction. Appellant’s Brief at 9. Appellant argues that
the Commonwealth did not “present any witness that could positively identify”
him as the shooter. Id. at 9. Appellant highlights, in his view, testimonial
discrepancies regarding identifying features. Id. For example, Appellant
claims that the only eyewitness testified that the shooter “had a lot of hair,”
but Detective Sean Bogart testified that Appellant’s hair appeared “shorter” or
a “low haircut” in the surveillance video. Id. at 10. Appellant emphasizes
that Detective Bogart did not see a firearm in his hand. Id. Appellant
acknowledges he was identified in the video, but was not explicitly identified
as the shooter. Id.
Our Supreme Court has explained the standard for reviewing the
sufficiency of the evidence as follows:
We must determine whether the evidence admitted at trial, and
all reasonable inferences derived therefrom, when viewed in the
light most favorable to the Commonwealth as verdict winner,
supports all of the elements of the offense beyond a reasonable
doubt. In making this determination, we consider both direct and
circumstantial evidence, cognizant that circumstantial evidence
alone can be sufficient to prove every element of an offense. We
may not substitute our own judgment for the jury’s, as it is the
fact finder’s province to weigh the evidence, determine the
credibility of witnesses, and believe all, part, or none of the
evidence submitted.
Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa. 2007) (citations
omitted). “Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope of review is
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plenary.” Commonwealth v. Williams, 176 A.3d 298, 305 (Pa. Super.
2017) (citation omitted).
“In addition to proving the statutory elements of the crimes charged
beyond a reasonable doubt, the Commonwealth must also establish the
identity of the defendant as the perpetrator of the crimes.” Commonwealth
v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (quotation marks and
citation omitted). If a defendant challenges only the sufficiency of evidence
as to identity, then we limit our review solely to that element. See
Commonweatith v. Cain, 906 A.2d 1242, 1244 (Pa. Super. 2006) (declining
to address the sufficiency of evidence supporting every element where a
defendants challenged only identification evidence). We add:
Evidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a _ perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Kinney, 157 A.3d 968, 971 (Pa. Super. 2017) (citation
omitted).
After careful consideration of the parties’ briefs, the record, and the trial
court’s opinion, we affirm the sufficiency of evidence supporting Appellant’s
convictions on the basis of the trial court’s opinion. See Trial Ct. Op. at 17-
J-A18035-20
19; see generally Kinney, 157 A.3d at 971. We therefore affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 1/13/2021
Circulated 12/28/2020 03:16 PM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: OF ERIE COUNTY, PENNSYLVANIA
Vv. : CRIMINAL DIVISION = 2 Q
Soe =
FAYSAL SALIM MUHAMMAD, : San S
APPELLANT : NO. 2604 of 2018 Om Lo
SPARe ao 7
HOC ay
OPINION OD84 A.3d 736, 749 (Pa. Super. 2014).
An abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record, An abuse of discretion may
result where the trial court improperly weighed the probative value of
evidence admitted against its potential for prejudicing the defendant.
Commonwealth v. Antidormi, 84 A.3d at 749 (internal citations and quotation marks
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omitted).
Pennsylvania Rule of Evidence 403 provides the Court may exclude relevant evidence if
its probative value is outweighed by a danger of unfair prejudice. See PaR.E. No. 403.
Relevant evidence is that which has any tendency to make a fact more or less probable than it
would be without the evidence, and the fact is of consequence in determining the action. See
PaRE&. 401. “(Unfair prejudice’ means ‘a tendency to suggest decision on an improper basis
or to divert. the jury's attention away from its duty of weighing the evidence impartially.’”
Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1245 (Pa. 2015). See also, PaR.E. 403
(comment).
All relevant Commonwealth evidence is meant to prejudice a defendant. See
Commonwealth. v, Gonzalez, 112 A.3d 1232, 1238 n.6 (Pa. Super 2015). Thus,
[e]vidence is not unfairly prejudicial simply because it is harmful to the
defendant’s case. The trial court is. not required to sanitize the trial to
eliminate all unpleasant facts from the jury’s consideration where those
facts are relevant to the issues at hand. Exclusion of evidence on the
grounds that it is prejudicial is limited to evidence. so prejudicial that it
would inflame the jury to make a decision based on something other than
the legal propositions relevant to the case,
Commonwealth v. Flamer, 53 A.3d 82, 88,-n. 7 (internal quotations and citations omitted).
B. Discussion
Neither Officers Adam Johnston’s nor Shawn Bolt’s identification testimony unfairly
prejudiced Appellant because the testimony did not “suggest decision on an improper basis or
divert the jury’s attention away from its duty of weighing the evidence impartially. Their
identification of Appellant was relevant to weight; not admissibility, and the jury was free to
believe or disbelieve this testimony which was subject to cross-examination by the defense at
trial. Any prejudicial effect of Johnston’s and/or Bolt’s identification testimony was
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insignificant. The Court was not required to sanitize the trial by excluding relevant identification
testimony of Johnston and/or Bolt. No abuse of discretion occurred in admitting this evidence.
There was no overriding or misapplication of the law, or exercise of judgment that was
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the
evidence:of record. The claims are wholly without merit and must be dismissed,
IL. Sufficiency of Evidence Claims — Identification Evidence
Appellant challenges the sufficiency of the identification evidence at all counts. 1925/6)
Statement, 8.
A. Sufficiency of the Evidence Standard
When evaluating a challenge to the sufficiency of the evidence, the Court must determine
whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict
winner, together with all reasonable inferences from that evidence, the trier of fact could have
found each element of the crime charged was established beyond ‘a. reasonable doubt.
Commonwealth v. Hargrave, 745 A.3d 20, 22 (Pa. Super. 2000), appeal denied, 760 A.2d 851(Pa. 2000)(internal citations omitted); Commonwealth. v. Brunson, 938 A.2d 1057, 1058 (Pa.
Super. 2007); Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa. 1991). The Commonwealth
may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v.
Hopkins, 747 A.2d 910, 913 (Pa. Super. 2000). The facts arid circumstances established by the
Commonwealth need not preclude every possibility of innocence, and any questions or doubts
are to be resolved by the fact-finder, unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the combined circumstances.
Commonwealth v. Hopkins, supra at 913-14.
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B. Discussion
Viewing the evidence against this standard, Appellant’s claims of insufficiency of the
identification evidence are meritless and must be dismissed. The identification evidence clearly
established it was Appellant who committed the crimes.
The police recovered video surveillance from numerous cameras mounted on the interior
and exterior of the bar. The. lead investigator, Detective Sean Bogart from the City of Erie
Police, analyzed the exterior video surveillance films and observed that it captured the shooting.
Tr. Day 2, pp. 37-39.
Bogart’s analysis of the surveillance videos revealed that, from various distances and
angles, the interior and exterior videos collectively depicted a person later identified as
Defendant, wearing distinctive clothing engaging in various activities inside and outside the bar.
The videos show the person in the distinctive attire exiting the bar, and within minutes stopping
briefly at the vehicle he arrived in, exiting the vehicle, and heading down the street in the
direction of Barney. Video depicts this person as he approaches Barney and appears to reach for
something within his clothing. Video next depicts a flash, with Barney falling into the street and
the. Defendant flecing on foot. The videos showed the individual dressed in the distinctive attire
was the same individual who shot Barney.
No one else in the numerous videos at the relevant times was wearing the same
distinctive clothing. Bogart sent screen shots of the person wearing this attire out to law
enforcement. The screen shots were taken from video surveillance from within the bar shortly
before Defendant exited. the bar and shot Barney. Two separate corrections officers/employees
who viewed the screen shots independently identified the person in the close-up as Defendant.
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At trial, the two corrections officers, Johnston and Bolt, testified about the bases for their
independent identifications of Defendant, and their high levels of confidence in the accutacy of
their identifications. Following identification of the shooter as the Defendant, Faysal
Muhammad, Bogart filed the instant charges. Defendant, who had fled the scene and
subsequently the state, was later arrested in Detroit, Michigan, and brought back to Erie,
Pennsylvania to face the instant charges.
During the three-day trial, the Commonwealth presented the testimony of various
witnesses, including that of the lead investigator, City of Erie Police Officer Detective Sean
Bogart. Detective. Bogart, inter alia, testified concerning the video surveillance films he
reviewed while excerpts of the films were played for the jury. The Commonwealth also
‘presented the testimony of the two corrections officers, Adam Johnston and Shawn Bolt, who
independently identified Defendant from screen shots from surveillance video from the bar.
Collectively, this evidence established Defendant was the perpetrator of the crimes at
Counts One through Five. The claims are meritless and must be dismissed.
Il. Claims of Error — Evidence of Motive
Appellant challenges the convictions at Count One, Criminal Attempt/Homicide, and
Count Two, Aggravated Assault, on the basis the evidence was insufficient because the
Commonwealth did not present evidence of motive. The claims are unavailing. The
Commonwealth was not required to present evidence of motive at Counts One and Two because
motive is not an element of the crimes the Commonwealth was required to prove. See 18
PaC.S.A. §§901(a)/2501(a), 2702(a)(1). Evidence to prove motive is always relevant
in criminal cases. Commonwealth v. Gwaltney, 442 A.2d 236, 241 (Pa. 1982). While proof of a
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motive for the commission of a crime is always relevant, it is not an essential element and is not
necessary to warrant a conviction. Commonwealth y. DePetro, 39 A.2d 838, 840 (Pa. 1944);
Commonwealth v. Manchas, 633 A.2d 618, 623 (Pa. Super. 1993).
IV. Sentencing Claim
In. the 1925(b) Statement, Appellant baldly claims the trial court “relied on impermissible
factors in fashioning the Appellant’s sentence and thereby sentenced the Appellant to a sentence
that is excessive and unreasonable.” 1925(b) Statement, § 10.
A. Claim Waived as Vague
In the 1925(b) Statement, Appellant failed to identify where in the séntencing record the
court relied upon an impermissible factor; failed to identify any considered factor which was
arguably “impermissible”; and failed to identify how, in any respect, the sentence was excessive
or unreasonable. See 1925(b) Statement, Appellant fails to articulate any basis for the claim.
For lack of specificity in the 1925(b) Statement, the Court is impeded in its review of the issue,
and the claim is waived for vagueness. See 1925(b)(4) (ii).
Assuming arguendo the claim is not waived as vague, it is wholly without merit.
B. Legal Standards and Discussion
1. Claim Not Preserved
Assuming arguendo the claim is not waived, it presents a challenge to the discretionary
aspects of his sentence. “Challenges to the discretionary aspects of sentencing do not entitle
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).
Therefore, before an appellate court will rule on the discretionary aspects of a sentence Appellant
must satisfy a four-part test. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
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The issue must be properly preserved by timely presenting the issue in either a post-sentence
motion or at time of sentencing, and be included in a PaR.A.P. § 2119(f) statement.
Commonwealth v. Tobin, 89 A.3d 663, 66 (Pa. Super. 2014) (citations omitted). Further, an
appeal is permitted only after the appellate court determines there is a substantial question that
the sentence-is not appropriate under the Sentencing Code. Jd.
As no post-sentence motion was filed, and no claim regarding the sentence imposed was
raised at time of sentencing, this claim was not properly preserved for appellate review.
2. Claim Meritless - No Substantial Question Raised
In the event the Superior Court wishes to address the sentencing claim, no substantial
question has been raised. “A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a
specific provision of the Sentencing Code; or (2) contrary to the fundamental norms ‘which
underlie the sentencing process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)
(citations omitted). The appellate court does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006) (citations omitted).
“Rather, Appellant must support his assertions by articulating the way in which the court’s
actions violated the sentencing code.” Jd.
Appellant’s bald assertion of seritencing errors fails to raise a substantial question.
Appellant advanced no colorable argument any sentence imposed was inconsistent with a
specific provision of the Sentencing Code. Nor did Appellant indicate how any sentence was
contrary to any fundamental norm underlying the sentencing process. As no substantial question
was raised, the sentencing claim must fail.
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3. Claim Meritless - No Abuse of Discretion
Assuming, arguendo, a substantial question has been raised, no abuse of discretion
occurred in sentencing Appellant. The standard of review for a discretionary challenge to a
sentence is as follows:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and
a sentence will not be disturbed on appeal absent a manifest abuse of discretion.
In this context, an abuse of discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.
Commonwealth v. Raven, 97 A.3e 1244, 1253 (Pa. Super 2014) (citation omitted).
Further, “the record as a whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.” Commonwealth v. Crump, 995 A.2d 1280,
1283 (Pa. Super. 2010) (citation omitted). Additionally, when “the trial court has the benefit of a
[PSI] report, we presume that the court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with any mitigating factors.”
Commonwealth v. Seagraves, 103 A.3d 829, 842 (Pa. Super. 2014).
Here, the Court appropriately relied upon the pre-sentence investigative report; the Court
considered the remarks of counsel; and the sentencing transcript reflects the factors the Court
appropriately relied upon when fashioning the sentence. See Transcript of Proceedings,
Sentencing Hearing (Tr. Sent.), pp. 5-15. No abuse of discretion occurred in sentencing
Appellant. The sentencing claim is meritless.
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CONCLUSION
For the foregoing reasons, this appeal must be dismissed. The Clerk of Courts is hereby
directed to transmit the record to the Superior Court.
BY THE COURT:
WIS 2 207 Mth | | Yitberliiy,
Date Daniel J. Br: gpender, Jr., Judge
cc District Attorney’s Office
Emily M. Merski, Esq., Office of the Public Defender
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