NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
HAKIM BOND, Appellant No. 3473 EDA 2012
Appeal from the Judgment of Sentence July 20, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007714-2009
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ. MEMORANDUM BY BOWES, J.: FILED OCTOBER 07, 2014 Hakim Bond appeals from the judgment of sentence of life imprisonment without parole imposed by the trial court after a jury found him guilty of first-degree murder, conspiracy to commit murder, and possession of an instrument of crime. As Appellant was a juvenile at the time of the commission of the crimes, we vacate his judgment of sentence pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012), and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), and remand for re- sentencing. In all other respects, we affirm.
On January 20, 2006, Marvin Flamer drove Appellant, a juvenile, and
Nafeast Flamer to the 2200 block of West Pierce Street, Philadelphia. The
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*
Retired Senior Judge assigned to the Superior Court.
victim, Allen Moment Jr., was conversing with Aisha Williams outside of a Chinese restaurant at that location.1 As Ms. Williams began to walk away, Appellant and Nafeast Flamer exited the car and fired a barrage of bullets at the victim, striking the victim fourteen times. Mr. Moment staggered into the arms of Ms. Williams, who cradled him until the arrival of police. Despite being shot in his abdomen, chest, and both legs, Mr. Moment initially survived the attack. Mr. Moment at first declined to identify his attackers as did Ms. Williams. Due to the shooting, Mr. Moment remained confined to a hospital bed and had to be fed intravenously for the remainder of his life. Since the victim had to be fed intravenously and used a catheter to urinate, he was subject to a high risk of infection and repeatedly suffered from blood poisoning and line sepsis.2
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1 Ms. Williams, in a statement to police, indicated that she wished to purchase drugs from the victim. 2 The Commonwealth introduced into evidence a letter from Appel doctor at the Hospital of the University, which detailed his medical complications as follows:
Allen Moment Jr. was admitted to the Hospital of the University of Pennsylvania on 1/21/06 after sustaining multiple gunshot wounds to his abdomen, pelvis, and lower extremities.
He was brought emergently to the operating room where he underwent exploratory laparotomy, multiple bowel resections and bladder repair. His post-operative course was extremely complicated. He developed bilateral lower extremity compartment syndrome, renal failure, multiple entercoutaneous fistulas, short gut syndrome, pericarditis with acute pericardial pneumonias, line infections, and urinary tract infection. He (Footnote Continued Next Page)
3
At the end of January 2008, Mr. Moment was taken to the Intensive Care Unit of Hospital of the University of Pennsylvania due to line sepsis.
to die within several days. Accordingly, Mr. Moment requested to speak with police. Detectives interviewed Mr. Moment on February 4, 2008, while he was in the presence of his mother and an uncle. Mr. Moment named Marvin Flamer, and selected Appellant and Nafeast Flamer from photographic arrays as his assailants. Mr. Moment and Appellant had been friends for many years and the Flamers were his cousins. Two days after this statement, Mr. Moment identified Marvin Flamer from a photograph and indicated that he had been the driver of the vehicle involved. He again asserted that Appellant and Nafeast Flamer had shot him. Police also took a videotaped statement from the victim on February 14, 2008. Mr. Moment repeated that Appellant and Nafeast Flamer had shot him and Marvin Flamer had driven the car used in the incident.
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(Footnote Continued)
developed critical care myopathy which left him essentially quadriplegic. He required constant nursing care and frequent intensive care unit admissions. During the course of his 2 ½ year hospitalization he required multiple surgical procedurse including re-laparotomy, multiple bowel anastomosis, split thickness skin grafts, incision and drainage of lower extremities, tracheostomy, supra-pubic bladder drainage, thoracotomy, craniectomy, cholecystostomy tube placement, and multiple central venous lines.
-8, Letter from Dr. Carrie Sims, 12/19/08.
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Upon receiving this information from the victim, police sought information from Ms. Williams. Ms. Williams confirmed on both March 17, 2008, and August 29, 2008, that Appellant was one of the shooters, and identified both Marvin and Nafeast Flamer as additional perpetrators. At trial, however, Ms. Williams retracted these statements.
The victim died on August 6, 2008. Subsequently, on September 6, 2008, the Commonwealth charged Appellant with homicide, conspiracy to commit murder, and PIC. The Commonwealth and Appellant litigated several pre-trial motions, including a motion by the Commonwealth to introduce evidence regarding the death of an eyewitness, Abdul Taylor. Mr.
-defendants. The
court severed Appe -defendants, and
also held under advisement a portion of the motion. Specifically, relevant to this appeal, the court admitted testimony from two detectives who took a statement from Mr. Taylor on August 13, 2008, but noted that the statement was subject to redaction regarding Appellant. The Commonwealth filed an interlocutory appeal, but later discontinued it. Thereafter, Appellant proceeded to -defendants having killed Mr. Taylor.
The court also admitted into evidence, as dying declarations, several statements from the victim implicating Appellant in the shooting.
5
At the conclusion of the trial, the jury found Appellant guilty of the aforementioned crimes. The court sentenced Appellant on July 20, 2012, to life imprisonment without parole for the first-degree murder charge and imposed no further penalty on the remaining counts. Appellant filed a timely post-sentence motion, which the court denied by operation of law. Subsequently, Appellant filed a pro se notice of appeal, and the court ultimately appointed substitute counsel.3 Original appellate counsel withdrew and the court appointed current counsel.
The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant complied, and the court authored its Rule 1925(a) opinion. The matter is now ready
[1.] Whether there was prosecutorial misconduct at trial, which
the U.S. Constitution 5th, 6th, and 14th Amendments and Pa.
Constitution Art. I § 9, when the prosecutor violated the
barred [the] Commonwealth from introducing any statements or comments to the jury which would implicate the appellant in the killing of an eyewitness.
[2.] Whether the trial court committed substantial legal error, Constitution 5th, 6th, and 14th Amendments and Pa. Constitution
extraordinary relief for misconduct of the prosecutor in
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3 Appellant had privately retained counsel for purposes of his trial. According to Appellant, that attorney declined to file a notice of appeal on his behalf.
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prejudicial opening statements to the jury, in direct violation of
[3.] Whether the trial court committed substantial legal error, which was highly prejudicial to appellant, when it admitted a
a victim who did not die until approximately 2 ½ years after the i
[4.] Whether the trial court committed substantial legal error, which was highly prejudicial to appellant, when it allowed a dacting
allegations relating to an unrelated, uncharged homicide, which the declaration attributed to the appellant and codefendant.
[5.] Whether the verdict was against the weight and sufficiency of the evidence.4
-5.
At the outs argument as a successful sufficiency challenge warrants discharge and not a retrial on the relevant crimes. We review the sufficiency of the evidence by considering the entire record and all of the evidence admitted at trial. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We view such evidence in a light most favorable to the Commonwealth as
the verdict winner, drawing all reasonable inferences from the evidence in
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4 Appellant has also filed a reply brief raising for the first time the lawfulness Miller v. Alabama, 132 S.Ct. 2455 (2012), and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013). Generally, it is improper to raise and present new issues in a reply brief. Commonwealth v. Basemore, 744 A.2d 717, 726-727 (Pa. 2000). However, as this Court may consider legality of sentence issues sua sponte, we discuss this issue in the body of this memorandum.
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favor of the Commonwealth. Id. When evidence exists to allow the fact- finder to determine beyond a reasonable doubt each element of the crimes charged, the sufficiency claim will fail. Id.
need not preclude every possibility of innocence and the fact- Id. In addition, the Commonwealth can prove its case by circumstantial the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined
-weigh the evidence and substitute our judgment for that of the fact- Id.
entirely on the
basis that the prosecutor wrongly attributed two additional homicides to Appellant and the court erred in admitting the dying declaration. However, this argument has no bearing on a sufficiency analysis. This Court considers all of the evidence introduced, even erroneously admitted evidence. Further, aside from citing one case relative to our standard of review, Appellant offers no legal support for his position. Here, viewing the evidence in a light most favorable to the Commonwealth, it is clear that sufficient evidence exists to show that Appellant possessed a weapon with intent to commit a crime, shot and killed the victim, and conspired to do so with
8
Having
prosecutor violated a pretrial order precluding the Commonwealth from introducing evidence that Appellant was involved in the killing of Abdul Taylor, a witness to the shooting in this matter who was shot in the head
his co-defendants because there was significant evidence that his co- defendants and another individual conspired to kill Mr. Taylor, but there was no evidence tying Appellant to that murder.5
opening that a witness was killed, and the prosecutor wrongly names the appellant as a perpetrator in that crime, he inflamed the jury and tainted the
declining to issue a cautionary instruction as requested.
The Commonwealth rejoins that Appellant did not object to the
that Appellant did request the court to instruct the jury to disregard evidence of an uncharged crime, but that this objection occurred after the
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5 The evidence linking Nafeast and Marvin Flamer to the death of Mr. Taylor is partially outlined in Commonwealth v. Flamer, 53 A.3d 87 (Pa.Super. 2012).
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opening statement and was not in reference to the killing of Mr. Taylor. The
not suggest Appellant was involved in the death of Mr. Taylor. Rather, it
[shows] that Nafeas[t] and Marvin conspired to kill Abdul, and he was killed;
the jury did not hear any evidence implicating Appellant in the death of Mr.
not evidence.
Statements made by a prosecutor during his opening or closing tor deliberately attempts to destroy the objectivity of the jury and the unavoidable effect of the remark is to create such a bias and hostility toward the defendant that the jury Commonwealth v. Mollett, 5 A.3d 291, 311 (Pa.Super. 2010) (citing Commonwealth v. Laird, 988 A.2d 618, 644 (Pa. 2010)). As our Supreme Court has opined,
the case will develop, its background and what will be attempted to b Commonwealth v.
Montgomery, 533 Pa. 491, 498, 626 A.2d 109, 113 (1993)
(citing Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983)). In Montgomery, practical matter the opening statement can often times be the most critical stage of the trial, because here the jury forms its Montgomery,
533 Pa. at 498, 626 A.2d at 113. The prosecution, as well as the defense, is afforded reasonable latitude in presenting opening arguments to the jury. Commonwealth v. Jones, 530 Pa. 591,
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607, 610 A.2d 931, 938 (1992). Such latitude is not without limits.
that he plans to introduce at trial, and must not include mere
Commonwealth v. Begley, 566 Pa. 239, 274, 780 A.2d 605, 626 (2001) (citing Jones, supra). A prosecutor's opening statements may refer to facts that he reasonably believes will be established at trial. Id.
Commonwealth v. Parker, 919 A.2d 943, 950 (Pa. 2007).
by failing to object. Further, the prosecutor did not indicate that Appellant was involved in the death of Mr. Taylor, and the jury was properly instructed
is not entitled to relief.
The second issue Appellant levels on appeal is that the court erred in
Appellant offers no citation in support of the merits of his position and includes only one boilerplate citation, this issue fails for the same reasons
to police implicating Appellant as dying declarations.
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he experienced a sense of urgency that his life was imminently slipping away
statements, not on how long the miracles of medical science enable him to
It maintains that, at the time the victim made his statements, his doctor had informed him that he was going to die, likely within days. Thus, the
statements was that his death was imminent.
The Pennsylvania Rules of Evidence permit the introduction of a dying declaration as an exception to the hearsay rule. A
Former Pa.R.E. 804(b)(2) (rescinded and replaced effective March 18, 2013). This rule is derived from longstanding Pennsylvania law. In Kilpatrick v. Commonwealth, 31 Pa. 198 (1858), the High Court declared declarant
made them he was in actual danger of death; unless he believed death was Id. at 215.
There the victim died nine days after his statement. The Kilpatrick Court
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statements were made under a sense of impending death. In this respect, the Court recognized:
It is enough, if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved, by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to in order to ascertain the state of the declarant's mind.
Id. declaration and, therefore, admissible hearsay if the declarant believes he or she is going to die (which can be inferred from the surrounding circumstances), death is imminent, and d Commonwealth v. Priest, 18 A.3d 1235, 1241 (Pa.Super. 2011).
In this case, the surrounding circumstances establish that the victim believed that his death was imminent. Specifically, after being readmitted to the Intensive Care Unit, his doctor informed him and his family that he was close to dying. The victim, after expressing his love for his mother, and telling her that he was not afraid, asked to speak with detectives. The 8, and said that her son
might not make it much longer and wished to tell police who shot him. Thereafter, on February 4, 2008, the victim identified Appellant as one of his attackers. He reiterated his identification on February 6, 2008, and in a videotaped interview on February 14, 2008. The officer who taped the
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believed the man was going to d Id. at 44.
Our Supreme Court has previously ruled that the fact that a victim did not die for a month after her statement did not preclude the admissibility of the statement where the individual believed death was approaching. Commonwealth v. Stickle, 398 A.2d 957 (Pa. 1979). Although the victim in this matter survived for an additional seven months after the doctor informed him that he was going to die soon, the facts of this case establish that he believed that his death was imminent. Accordingly, we find no error by the trial court.
Appellant in his penultimate issue asserts that the trial court erred in
statement implicated Appellant and his co-defendants in the death of another person, Anthony Dickerson. In advancing his argument, Appellant
Nafeast Flamer wanted to kill him because they believed the victim was seeking revenge for th Appellant notes that there was no proof that he was involved in the death of Mr. Dickerson, and he was not charged for that crime. According to ence to this homicide
was error.
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he did not seek a redaction prior to trial and did not object at the time the statement was read. Instead, Appellant objected after the witness who read the statement, a police officer, left the witness stand. With respect to the merits, the Commonwealth maintains that evidence of other bad acts is
bad act is admissible to show motive or as part of the res gestae of the case. We agree that evidence that the victim was shot to prevent him from retaliating against Appellant for the shooting of Mr. Dickerson was See Pa.R.E. 404(b);
Commonwealth v. Green, 76 A.3d 575 (Pa.Super. 2013). Thus, Appellant is not entitled to relief.
sufficiency argument and now reach his weight of the evidence position.
is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)
o]ne of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the Id.
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Id. Instead, the court must examine whether
that to ignore them or to give them equal weight with all the facts is to deny Id
as trial. Id.
In the present case, there are not certain facts that clearly outweigh
as one of the shooters on multiple occasions while he believed his death was
claim is meritless.
As noted, Appellant filed a reply brief raising for the first time that he was a juvenile at the time he committed this crime. Therefore, he submits that he could not be sentenced to a mandatory term of life imprisonment.
gly, since
the issue relates to the legality of his sentence, and in light of Miller, supra and Batts, supra, we vacate his judgment of sentence and remand for resentencing.
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Judgment of sentence vacated. Case remanded for re-sentencing.
tion for post-submission communication filed July 29, 2014 is granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/7/2014