Opinion
J-S79037-16 No. 2963 EDA 2015
12-28-2016
COMMONWEALTH OF PENNSYLVANIA v. RAHEEM BROWN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 15, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0010356-2013 BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Raheem Brown ("Brown") appeals from the judgment of sentence imposed following his convictions of second-degree murder, conspiracy, robbery, burglary, and violation of the Uniform Firearms Act. We affirm the convictions, vacate the separate judgment of sentence for robbery, and affirm the judgment of sentence in all other respects.
In its Opinion, the trial court set forth a detailed recitation of the factual and procedural history of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 12/30/15, at 2-20.
On appeal, Brown raises the following issues for our review:
1. Was the evidence presented to the jury sufficient to sustain convictions against [Brown] for second-degree murder and conspiracy[,] where the evidence showed that [] co-defendant[, ]Emmanuel Duran[ ("Duran"),] killed the
decedent spontaneously and independently of [Brown] and the crimes of robbery and burglary?Brief for Appellant at 4-5 (some capitalization omitted, issues renumbered for ease of disposition).
2. Were the second-degree murder and conspiracy verdicts of guilty against the weight of the evidence[,] where the testimony of various Commonwealth witnesses was weak, inconclusive, unreliable, incredible and inconsistent?
3. Did the trial court err[] in denying [Brown's] Motion to Suppress an unduly suggestive photographic identification procedure[,] where only a single photograph of [Brown] was used to make the identification?
4. Did the trial court err[] in denying [Brown's] Motion to Sever the trial from [] Duran['s trial,] where the evidence presented against Duran was substantial[,] and demonstrated that he killed the decedent spontaneously and independently of [Brown,] and the crimes of robbery and burglary?
In his first issue, Brown contends that the evidence was insufficient to convict him of second-degree murder and conspiracy. Id. at 19. Brown asserts that he, Duran and Edward Brooks ("Brooks") allegedly planned a robbery and burglary of the decedent for drugs and money, and that murder was never part of the plan. Id. Brown claims his testimony that, after no drugs or money were found, he told the others that it was "time to leave" constitutes evidence that he did not conspire to murder the decedent. Id. at 19-20. Brown argues that he was merely present at the scene when the unplanned murder spontaneously and independently occurred. Id. at 20.
In its Opinion, the trial court addressed Brown's first issue, set forth the relevant law, and determined that the evidence was sufficient to support his convictions of second-degree murder and conspiracy. See Trial Court Opinion, 12/30/15, at 38-41, 42-43. Based on our review, we agree with the reasoning of the trial court, which is amply supported by the record, and affirm on this basis as to Brown's first issue. See id.
In his second issue, Brown contends that his convictions of second-degree murder and conspiracy were against the weight of the evidence. Brief for Appellant at 20. Brown asserts that the only witness to identify him as participating in the robbery/burglary was Brooks, who cooperated with the Commonwealth, secured a prison sentence of 16 to 32 years, and had a motive to lie. Id. at 20-21. Brown claims that Brooks lied to his mother about the events leading up to the murder, and claimed that he did not know that Brown and Duran were armed or that they planned to rob the decedent and burglarize his home. Id. at 21. Brown argues that the other witnesses who testified for the Commonwealth recanted their statements during trial, including John Bowie ("Bowie"), Joshua Hines ("Hines"), and Abu Adul Wakeel. Id. Finally, Brown contends that Bowie confessed to the murder during his trial testimony. Id.
In its Opinion, the trial court addressed Brown's second issue, set forth the relevant law, and determined that Brown's convictions of second-degree murder and conspiracy were not against the weight of the evidence. See Trial Court Opinion, 12/30/15, at 46-48. Based on our review, we discern no abuse of discretion by the trial court, and affirm on this basis as to Brown's second issue. See id.
In his third issue, Brown contends that the trial court erred by denying his Motion to Suppress identification evidence. Brief for Appellant at 22. Brown asserts that, while questioned by police, Hines and Bowie identified Brown through a single photograph. Id. at 23. Brown concedes that he may have been in the presence of Bowie and Hines prior to the incident, but argues that no testimony was presented to establish the frequency of their interactions with Brown or the length of time that they knew Brown. Id. Brown contends that "[t]hese brief encounters with [Brown] necessitated the use of a traditional eight photograph[] array in order to insure a proper identification[,]" and that "the single photograph identification procedure [used] was improperly suggestive." Id. at 23-24.
On appeal, Brown also challenges Brooks's identification of Brown. See Brief for Appellant at 23. However, as Brown failed to raise a claim regarding Brooks's identification in his Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal, he failed to preserve this issue for our review. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that, if an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived).
Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal conclusions based upon the facts.Commonwealth v. Galendez , 27 A.3d 1042, 1045 (Pa. Super. 2011) (en banc) (citation omitted).
In its Opinion, the trial court addressed Brown's third issue, set forth the relevant law, and determined that it properly denied Brown's suppression Motion. See Trial Court Opinion, 12/30/15, at 23-25. Based on our review, we agree with the reasoning of the trial court, and affirm on this basis as to Brown's third issue. See id.
In his final issue, Brown contends that the trial court erred by denying his Motion to Sever his trial from Duran's trial. Brief for Appellant at 21. However, Brown failed to raise this issue in his Concise Statement. Therefore, he failed to preserve this issue for our review. See Lord , supra.
Nevertheless, our review of the certified record discloses that the sentencing court sentenced Brown to life imprisonment for his second-degree murder conviction as well as a concurrent prison term of 10 to 20 years for his underlying felony (robbery) conviction. Although Brown has not challenged this aspect of his sentence, this Court may raise and review an illegal sentencing issue sua sponte. See Commonwealth v . Oree , 911 A.2d 169, 172 (Pa. Super. 2006). Pursuant to the Pennsylvania Supreme Court's decision in Commonwealth v. Tarver , 426 A.2d 569 (Pa. 1981), a sentencing court has no authority to impose a sentence for a felony murder conviction, as well as a sentence for the predicate felony conviction. Accordingly, the sentencing court erred by imposing a prison sentence for Brown's robbery conviction. See Commonwealth v. Garnett , 485 A.2d 821, 829 (Pa. Super. 1984) (explaining that the trial court erred by imposing a prison term of 20 to 40 years on convictions for burglary, arson, and related offenses, in addition to concurrent terms of life imprisonment imposed for convictions on two counts of second-degree murder, where the burglary and arson convictions were the predicate felonies).
Here, the sentencing court lacked the authority to impose a separate sentence for the robbery conviction, where the robbery constituted the predicate offense for Brown's felony murder conviction. Accordingly, we affirm the convictions, vacate the separate judgment of sentence for robbery, and affirm the judgment of sentence in all other respects.
Judgment of sentence affirmed in part and vacated in part. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/28/2016
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