Com. v. Kinard, I.

• Court: Superior Court of Pennsylvania
• Decided: March 3, 2016
• Docket: 120 EDA 2015
• Status: Unpublished

Opinion

J. S11005/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : IDRIS KINARD, : No. 120 EDA 2015 : Appellant :

Appeal from the Judgment of Sentence, March 11, 2011, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0002209-2010

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.

JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED MARCH 03, 2016

Idris Kinard appeals from the judgment of sentence entered on

March 11, 2011. We affirm.

A jury convicted appellant of three counts of attempted murder,1 three

counts of aggravated assault,2 two violations of the Uniform Firearms Act,3

and possession of an instrument of crime.4 The trial court sentenced

appellant to a term of incarceration of 15 to 30 years.

The record reflects that the trial court retired from the bench.

Subsequently, the Honorable Daniel J. Anders was administratively assigned

1 18 Pa.C.S.A. § 901(a). 2 18 Pa.C.S.A. § 2702(a). 3 18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6108. 4 18 Pa.C.S.A. § 907(a). J. S11005/16

to this matter on appellant’s Post-Conviction Relief Act5 review and this

subsequent nunc pro tunc direct appeal. Judge Anders authored the

Pa.R.A.P. 1925(a) opinion. (Trial court opinion, 5/5/15 at 1 n.1.)

Appellant raises two issues for our review:

I. Whether the prosecution engaged in pervasive and persistent misconduct where all of the discovery was not turned over until the day before or the day of trial and where the prosecutor referenced facts not in evidence during sentencing that the Appellant was a member of a gang where there was no such evidence to support the allegation[?]

II. Whether it was error not to allow the jury access to relevant evidence that the perpetrator was a dark skinned African American male when the Appellant is a light skinned African American male where the description of the perpetrator appeared in two separate statements to detectives by two different individuals[?]

Appellant’s brief at 6.

Having determined, after careful review, that the learned

Judge Anders, in his May 5, 2015 Rule 1925(a) opinion, ably and

comprehensively disposes of appellant’s issues on appeal, with appropriate

reference to the record and without legal error, we affirm on the basis of

that opinion.

Judgment of sentence affirmed.

5 42 Pa.C.S.A. §§ 9541-9546.

-2- J. S11005/16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/3/2016

-3- Circulated 02/16/2016 03:24 PM

IN THE COURT OF COMMON PLEAS OF PHD..ADELPHIA COUNTY FIR.ST JUDICIAL DISTRICT OF PENNSYL ANIA . . . . v FILED . .· '. TRIAL DNISION - CRIMINAL MAY. 0 6 -Z0f5 COMMONWEALTii OF PENNSYLVANIA CP-5t"-CR-0002209~2QJQ . :. . . i; Gnmrn~! APP.~als Unit vs. 120 EDA 2015 . ·FirstJua,c,al District of PA IDRIS KINARD

OPJNION

Following a jury trial before the Honorable John O'Grady, Defendant Idris Kinard was

convicted of three counts of attempted murder, three counts of aggravated assault, two violations

of the Uniform Firearms Act ("VUF A"), and possession of an instrument of crime ("PIC"). The

trial court sentenced Defendant to a total of fifteen to thirty years of incarceration. On appeal,

Defendant argues that ( 1) the prosecution engaged in pervasive and persistent misconduct by not

turning over all-of the discovery until.the day before or the day of trial, (2) th~ trial court erred by precluding two descriptions of the perpetrator as "a dark skinned AfricanAmerican male when

the defendant is a light skinned African American male," and (3) the prosecutor referenced facts

not in evidence about Defendant's alleged gang membership during sentencing.' For the reasons

stated below, the Superior Court should affirm the judgment of sentence.

FACI1JALBACKGROUND

On January 14, 2010, at approximately 5:30pm, Michael Greene, Sr. and his family were

exiting their house to go to Target. Michael Greene, Sr. exited the house first, and entered the

front driver's seat of his Lincoln Navigator. Defendant Idris Kinard was standing across the

street. Greene noticed two unknown males standing directly across the street. A few minutes

later Greene's daughter Michelle exited the house and entered the vehicle. Michelle Greene sat

behind her father on the driver's side of the second row of seats. A few minutes later, Michael

I Judge John O'Grady retired. Judge Daniel Anders was administratively assigned this matter on PCRA review and this subsequent nunc pro tune direct appeal. For purposes of this opinion. "trial court" refers to Judge O'Grady. ! Greene, Jr. exited the house. As Michael Greene, Jr. headed to the passenger side of the vehicle,

Defendant opened fire on Michael Greene, Jr. and shot in Greene's direction numerous times. As I

' Michael Greene, Jr. jwnped into the vehicle, Defendant continued to fire at the vehicle hitting the

rear passenger tire, the passenger side of the vehicle, the rear window, and the driver's side

window. Michael Greene, Sr. and Michelle Green ducked to avoid the gunshots. None of the

gunshots hit the intended victims or anyone else. Two of the gunshots struck a neighboring

; home. Inunediately after the shooting, Defendant fled the scene down a set of steps in the

, direction of Abbottsford Avenue. Defendant dropped his cell phone during his flight. N.T.

01/04/2011 at 37-53, 61-68, 95, 101.

After executing search warrants for Defendant's home and his grandmother's home,

police recovered a .45 caliber Colt semiautomatic handgun and a .22 caliber revolver, which

matched the two .22 caliber bullets recovered from the scene of the shooting. Police recovered

Defendant's DNA from the trigger of the .22 revolver and the back strap handle of the .45 Colt

semiautomatic handgun. Police also recovered an iPhone box with a serial number matching the

iPhone found at the scene of the shooting. Police recovered letters and papers addressed to

Defendant, including Defendant's identification. N. T; 01/05/2011 at' 32-42, 188-97.

DISCUSSION

Defendant raises three claims of error on appeal: (1) that the prosecution engaged in

pervasive and persistent misconduct by not turning over all of the discovery until the day before

or the day of trial, (2) the trial court erred by precluding two descriptions of the perpetrator as "a

dark skinned African American male when the defendant is a light skinned African American

male," and (3) the prosecutor referenced facts notin evidence about Defendant's alleged gang

membership during sentencing.

-2- l ,,

l. The Prosecutor Did Not Engage In Prosecutorial Misconduct Because I

'.I He Timely Turned Over All Discovery Prior To Commencement Of Trial

Defendant argues that the prosecution engaged in "pervasive and persistent misconduct

where all of the discovery was not turned over until the day before or the day of trial[ ... ]." 1925

Statement of Errors. Courts review claims ofprosecutorial misconduct under an abuse of

discretion standard. Commonwealth v. Lopez, 51 A.3d 74, 84 (Pa. Super. Ct. 2012).

Consideration of claims of prosecutorial misconduct focuses on whether the defendant was

deprived of a fair trial, not a perfect trial. Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa.

Super. Ct. 2011 ).

Here, Defendant's prosecutorial misconduct claim appears to most-closely relate to 'a

Brady violation, which-as explained below-has no merit. To establish a Brady violation. a

e defendant must demonstrate that: (1) the evidence was suppressed by the Commonwealth. either

willfully or inadvertently; (2) the evidence was favorable to the defendant; and (3) the· evidence

was material, in that its omission resulted in prejudice to the defendant. Commonwealth v.

Antidormi, 84 A.3d 736, 747 (Pa. Super. Ct. 2014). To demonstrate prejudice, the evidence

suppressed must have been material to guilt or punishment. Id. at 74 7. Evidence is material when

there is "a reasonable probability that, had the evidence been disclosed, the result of the trial

could have been different." Id.

'The mere possibility that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial does not establish materiality in the

constitutional sense." Id. (citing Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003)).

Moreover, inadmissible evidence cannot be the basis for a Brady violation. Commonwealth v.

Lambert, 884 A.2d 848 (Pa. 2005) (citing Wood v. Bartholomew, 516 U.S. 1 (1995)). The

relevant inquiry is not whether the defendant would more likely than not have received a

-3- different verdict with the evidence, but whether in its absence he received a fair trial, understood

as a trial resulting in a verdict worthy of confidence. Antidormi, 84 A.3d at 748. A reviewing

court is not to review the evidence in isolation, and must evaluate the omission in the context of

the entire record. Id. (citing Commonwealth v. Dennis, 17 A.3d 297 (Pa. 201 I)).

Here, there is no dispute that the Commonwealth provided all discovery to defense

counsel before trial commenced:

• On March 9, 2010, Defendant received initial discovery.

• On December 3, 2010, Defendant received additional discovery (including the DNA results, the DNA expert report, and some of the phone records) that was recently received by the Commonwealth.

• On December 20, 2010, Defendant received additional discovery (including additional certified phone records) that was recently received by the Commonwealth.

• On December 29, 2010, sent a letter identifying a picture of a phone that belonged to Tiera Bond and correcting defense counsel's misapprehension that this phone belonged to Defendant as discussed at a previous hearing.

• On January 3, 2011, which was the day trial commenced, Defendant received Tiera Bond's statement to detectives. Toe Commonwealth provided her statement before Defendant was arraigned, i.e., before trial commenced. Defense counsel did not request a continuance to investigate Bond's statement or attempt to locate her.

N.T. 01/04/2011 at 143-149, 152-157; N.T. 01/05/2011 at 4-16; N.T. 01/06/2011 at 56-58. With

the exception of Tiara Bond's statement to detectives, all of the discovery was timely turned over

to Defendant as soon as that discovery was created or came into the possession of the

Commonwealth. N.T. 01/04/2011 at 154; N.T. 01/05/2011 at 5.

Although there was testimony during the trial that Officer Lally prepared a 75-48 police

report for Tiera Bond and another female, it was later determined that no such police paperwork

existed. Indeed, after Lally testified, the Commonwealth retrieved· and reviewed every 75-48

report that was completed in the 39th police district in Philadelphia on January 14, 2010, which

was the day of the shooting. Based upon its review of all police paperwork, the Commonwealth -4- ., represented to the trial court that no 75-48 report was ever created for Tiera Bond or the other

female. Thus, there was no 75-48 report or any other police paperwork that could be produced as

it never existed.

Because all discovery was passed prior to trial andDefendant cannot identify any

evidence that was suppressed by the Commonwealth, there is no Brady violation. Moreover, all

discovery was turned over in a timely fashion to Defendant and as it was received by the

Commonwealth-with the exception of Bond's statement. Although Bond's statement was turned

over- on the day that trial commenced, it was passed prior to the actual commencement of trial.

Defendant's failure to request a continuance to investigate Bond and her statement cannot form

the basis for a claim for prosecutorial misconduct, particularly when the Commonwealth

indicated that it would have agreed to a continuance. N.T. 01/05/2011 at 6. As such, Defendant's

prosecutorial misconduct claim is without merit.

2. The Trial Court Properly Excluded Defendant's Proposed Hearsay Evidence

Defendant argues that the trial court improperly precluded evidence from two sources

that the perpetrator of the shooting was a "dark-skinned African-American male." "The

admission or exclusion of evidence is within the sound discretion of the trial court, and in

reviewing a challenge to the admissibility of evidence, [the appellate court] will only reverse a

ruling by the trial court upon a showing that it abused its discretion or committed an error of

law." 8.1(. v. JK., 823 A.2d 987, 991-92 (Pa. Super. Ct. 2003). "An abuse of discretion is not

merely an error of judgment, but the misapplication or overriding of the 1 aw or the exercise of a

manifestly unreasonable judgment based upon partiality, prejudice or ill will." Commonwealth v.

Charleston, 16 A.3d 505, 526 (Pa. Super. Ct. 2011).

Hearsay is an out-of-court statement offeredto prove the truth of the matter asserted in

the statement. Commonwealth v. Kuder, 62 A.3d 1038 (Pa. 2013). Hearsay is generally -5- I , inadmissible because this evidence lacks guarantees of trustworthiness fundamental to our

! system of jurisprudence. Id. The rule against admitting hearsay stems from its preswned ' unreliability because the declarant cannot be chaJlenged regarding the accuracy of the statement.

Id. Nevertheless, certain hearsay exceptions apply in Pennsylvania to accommodate certain

classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit

exception to the general hearsay rule. Id. Of course, where a statement is offered for a purpose

other than proving the truth of its contents, it is not hearsay and not barred by the hearsay rules.

Id. Here, Defendant wanted to introduce two statements by declarants that the perpetrator of

the shooting was a "dark-skinned African-American male." Instead of calling the declarants who

· made the statements to testify at trial, Defendant wanted to call Detective Mayer, Detective

Grace and Officer Lally to testify regarding the contents of the statement relating to the

description of the perpetrator, i.e., a dark-skinned African-American maJe. N.T. 01/06/2011 at 3-

13, N.T. 01/04/2011 at 118-22, 140-42.

The evidence is classic hearsay. The statementand words at issue=-dark-skinned

African-American male-were uttered by Tiera Bond and Michael Greene·, Jr. in out-of-court

statements to police during the police investigation immediately following the shooting. Defense

counsel argued that it was necessary to admit these statements about skin color and complexion

because it would prove that Defendant (who is light skinned) was not the shooter because the

shooter was dark skinned. See N.T. 01/04/2011 at 153-157; N.T. 01/05/2011 at 4-7. As such, the

only purpose for which Defendant argued the statements should be admitted was for the truth of

the matter asserted, i.e., that the perpetrator was a dark-skinned African-American male, not

light-skinned.

-6- No exception to the hearsay rule applies including exceptions under Rule 803, Rule 803.1

I and Rule 804. Although Rule 803.1 permits prior statements of identification, Rule 803.l{c)

requires the declarant to testify at the trial and be subject to cross-examination. Since neither

. Greene nor Bond testified at trial, their statements could not be admitted through Rule 803. I.

Although Rule 804 does provide several hearsay exceptions when a declarant is unavailable at

trial. none of those exceptions applied.2 Thus, although Greene may have been unavailable

I because he exercised his Fifth Amendment privilege, none of the exceptions under Rule 804

applied. As for Bond, there is no information as to why she was not present for trial, so she does

not even meet the criteria for being unavailable under Rule 804. I

,; Thus, the trial court did not abuse its discretion and properly precluded the admission of ., the hearsay statements by Bond and Greene regarding their descriptions of the perpetrator.' 3. The Trial Court Properly Denied Defendant's Objections Based On The Prosecutor's Comments At Sentencing

Defendant argues that the trial court erred by allowing inappro~riate remarks by the

prosecutor during sentencing. Claims of prosecutorial misconduct are reviewed under an abuse

of discretion standard. Lopez, 57 A.3d at 84. Claims involving allegedly inappropriate remarks

by prosecutors focuses on whether the defendant was deprived of a fair trial, not a perfect trial.

Solomon, 25 A.3d at 383. A prosecutor's statements to the jury do not occur in a vacuum and

must be viewed in context. Id. Not every inappropriate remark by a prosecutor constitutes

2 , The enumerated exceptions are former testimony, statements under belief of imminent death, statements against interest, statements of personal or family history, and statements offered against a party that wrongfully caused the declarant's unavailability. See Rule 804(b). 3 Even assuming the trial court's evidentiary ruling was improper, this aUeged error would constitute harmless error given the overwhelming evidence of Defendant's guilt that is summarized infra at 1-2. See generally Commonwealth v. Green, 76 A.3d 575, 582 (Pa. 2013) (stating that harmless error exists if the reviewing court is convinced beyond a reasonable doubt from the record that: (1) the error did not prejudice the defendant or the prejudice was de minimis, (2) the erroneously admitted evidence was merely cumulative of other untainted evidence that was substantially similar to the erroneously admitted evidence, or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the guilty verdict."). -7- ~.

l reversible error. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). Even if the

1j prosecutor's arguments are improper, they generally will not form the basis for a new trial unless

I the comments unavoidably prejudiced the jury and prevented a true verdict. Commonwealth v.

Rolan, 964 A.2d 398, 410 (Pa. Super. Ct. 2008).

Here, Defendant argues that during sentencing the prosecutor cited to several facts not in

evidence regarding Defendant's alleged membership in a gang. Defendant repeatedly objected to

the prosecutor's statements during the sentencing hearing. N.T. 03/11/2011 at 9-12.

Even assuming arguendo that the prosecutor's statements were improper, Defendant

cannot prove prejudice in his sentencing. First, Defendant received a downward departure from

the applicable sentencing guidelines for each conviction. So, although the sentencing guidelines

' called for a minimum sentence of 78 months to 96 months of incarceration, plus or minus twelve

months of incarceration, the trial court sentenced Defendant to a minimum sentence of only 60

months on each count of attempted murder. Thus, Defendant received not only a fully mitigated

sentence, but actually a sentence that departed below the fully mitigated range. The trial court

imposed the lowest possible seritence available to him.

Second, although the trial court imposed consecutive sentences for the three attempted

murder convictions, a challenge to the exercise of a sentencing judge'sdiscretion to impose

sentences consecutively does not even raise a substantial question on direct-appeal as to the

appropriateness of the sentence. Commonwealth v. Treadway, 104 A.3d 597 (Pa. Super. Ct.

2014).

Third, the trial court did not rely on the prosecutor's argument that Defendant was an

alleged gang member when he explained the factors he considered in imposing the sentence.

N.T. 03/11/2011 at 27-29. Although he referenced the "community of30th·and Allegheny," this

was an entirely appropriate consideration' under the sentencing code and was diicuss'ed without -8- reference to Defendant's alleged gang membership. Id.; see 42 Pa.C.S. § 9721 (when sentencing

a defendant, the trial court "shall follow the general principle that the sentence imposed should

call for confinement that is consistent with the protection of the public, the gravity of the offense

as it relates to the impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant."). .

Thus, Defendant cannot prove that he suffered any prejudice during the sentencing

hearing.

CONCLUSION

Based on the foregoing, the judgment of sentence should be affirmed.

DANIELJ. Dated: May 5, 2015

-9-