Opinion
J-S11005-14 No. 2425 EDA 2012
03-28-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KARIEM GLENN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 18, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0007137-2010
CP-51-CR-0007138-2010
BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Kariem Glenn, appeals from the judgment of sentence of an aggregate term of 25 to 50 years' incarceration, imposed after a jury convicted him of third-degree murder, attempted murder, carrying a firearm without a license, and carrying a firearm on a public street in Philadelphia. On appeal, Appellant challenges the sufficiency and weight of the evidence to support his convictions, as well as discretionary aspects of his sentence. After careful review, we affirm.
The trial court summarized the evidence presented at Appellant's trial as follows:
Sharon Anderson testified that she was at home on the 100 block of Duval Street in Philadelphia with her son, Lonnie Anderson, (hereinafter referred to as the decedent), in the evening hours of October 8, 2009. The decedent left to go to a store on Germantown Avenue at approximately 8:30 P.M.Trial Court Opinion (TCO), 6/11/13, at 3-7 (citations to the record omitted).
She heard three (3) [gunshots] and ran outside her house. She saw Mikal Shanks running down the street away from Germantown Avenue towards Morton Street. She heard Shanks say as he ran past, "I'm shot and Lonnie's down[."] She ran across the street and saw the decedent lying on his left side on the sidewalk with his head pointed toward the street. She saw that the decedent had a gunshot wound to his head and left elbow. Rescue arrived and took the decedent to the hospital. He was pronounced dead on October 9, 2009[,] at 12:15 P.M., without [having regained] consciousness.
Police Officer Robert Flade testified that he was the assigned crime scene investigator. He processed the scene and recovered nine (9) fired cartridge casings, and a copper lead bullet fragment.
Dawonda Branch testified that on October 8, 2009, she was on the 100 block of East Duval Street driving eastbound away from Germantown Avenue when she heard gunshots and saw a black male wearing a red hat shooting at two (2) people who were standing on the sidewalk. She could not see the black male's face. The black male ran right in front of her vehicle and then up the street towards Germantown Avenue. She then saw Shanks, her cousin, running on the sidewalk down Duval Street. She told Shanks to get in her vehicle. She saw that he was bleeding. He refused to go to the hospital and wanted to be dropped off at his house. She dropped him off and went home.
Ms. Branch was interviewed by Homicide Detective Jenkins. She gave a statement and identified the male she saw wearing the red hat as [Appellant] from a photo array. In her statement, she indicated that the male that ran in front of her vehicle was pointing a black handgun and he shot four (4) or five (5) times. She saw Shanks standing on the sidewalk bleeding from his elbow. Shanks told her he was standing next to the decedent when the decedent was shot. She described the shooter as a dark brown-skinned male wearing a red hat and a black hoodie holding a black handgun in his right hand. She knew [Appellant] from around the neighborhood. She did not
initially report what she saw to the police because, "she was very afraid[."]
Mikal Shanks testified at trial that on October 8, 2009[,] at approximately 8:00 P.M., he was shot in the right elbow while he was walking down the 100 block of Duval Street. He saw a person come out of the shadows on the other side of the street and start firing a gun. The decedent was standing beside him. He saw the decedent fall. He turned and ran in the direction away from Germantown Avenue. As he ran towards the corner, Dawonda Branch pulled up in her vehicle. He got into her vehicle and asked her to take him home. He testified that he did not know who shot at him but described the shooter as [a] tall, black male wearing a black hooded jacket and a black and red fitted hat. He knew [Appellant] for a few years and knows him as "Scheme[."]
On October 12, 2009, Shanks gave a signed statement to homicide detectives and identified photos of the decedent ... and [Appellant]. In his statement, Shanks indicated that he was present when the decedent was killed and that it was Scheme who shot the decedent. He stated that he was walking up Duval Street when he saw the decedent sitting on some steps. He went past the [d]ecedent and onto Ky's house. Ky told him he wanted $125.00 for "syrup" and gave Shanks his phone number. Shanks walked back down the block past the decedent again. He looked across the street and saw [Appellant] walking towards him on the opposite side of the street. He saw [Appellant] run between two parked cars and into the street. [Appellant] started shooting in his direction. He turned around and started to run back up the street. He told the decedent to "get down[."] He saw the decedent get up and begin to run while [Appellant] was still shooting. He saw the decedent, running in front of him[,] fall to the ground. He heard at least seven (7) gunshots. He jumped over the decedent and kept running until he saw Dawonda Branch driving down the street. He jumped into her vehicle. She drove him home. ...
Shanks [further] told the detectives[] that in July, [Appellant] gave him one hundred [] eighty [180] milligram[s] [of] Oxycontin to sell for [Appellant]. He was supposed to give [Appellant] $2500 after selling the pills. Shanks never paid [Appellant] because he knew [Appellant] was on house arrest awaiting trial and he believed [Appellant] was going to jail so he thought, "Fuck him[."] He found out that in August of 2009,
[Appellant] cut off his house arrest bracelet and was going to try to kill [Shanks]. He knew [Appellant] for two (2) years and described him as [a] tall, kind of top heavy, dark-skinned [man] with a beard and [stated that Appellant] wore his hair cut close to his head. He identified a photo of [Appellant]. Shanks indicated further that he saw "Lil Kareema[,"] who sells drugs on Duval Street, outside of her house when the shooting happened. He identified her photo.
Kareema Townsville testified at trial that on October 8, 2009[,] at 8:30 P.M., she heard gunshots while she was inside of [a home at] 131 East Duval Street. She looked out the front window and saw two (2) figures. After the gunfire stopped, she ran out on the porch to see what was going on. She saw a male running down the street toward Germantown Avenue. She described the male as black, tall and wearing a red baseball cap and dark blue pullover jacket. She knows [Appellant] from the neighborhood and sees [Appellant] on average of twice a week.
Ms. Townsville was interviewed by homicide detectives a few hours after the incident. She identified a photo of [Appellant] as the person she saw running down the middle of the street after the gunshots stopped. She circled and signed the photo of [Appellant] she picked from a photo array. She testified that she identified [Appellant] by his build and height.
Ms. Townsville testified on cross-examination that she saw the left-side of [Appellant's] face for a few seconds.
Sasha Scruggs testified as an alibi witness for [Appellant]. [Appellant] is the father of her child. She testified that in October, 2009, she was living at her cousin's house in the Frankford section of Philadelphia. On October 8, 2009, she was at home with [Appellant] and her four (4) year old daughter. She knew Shanks for approximately one (1) year. She learned about the shooting of Shanks and another person on Duval Street when [Appellant] got a phone call in the early morning hours of October 9, 2009. [Appellant] was with her and neither one of them left her cousin's house during the evening hours of October 8, 2009.
...
Ms. Scruggs testified that she knew one week after the murder of the decedent that [Appellant] was wanted for the murder.. She never went to the police with this information.
Based on this evidence, the jury convicted Appellant of the above-stated firearm offenses, as well as third-degree murder for the killing of the decedent, Lonnie Anderson, and attempted murder for the shooting of Mikal Shanks. On July 18, 2012, the court sentenced him to a term of 20 to 40 years' incarceration for the third-degree murder conviction. The court also imposed concurrent terms of 3/2 to 7 years' incarceration, and 21/2 to 5 years' incarceration, for Appellant's offenses of carrying a firearm without a license and carrying a firearm on a public street in Philadelphia, respectively. Finally, the court sentenced Appellant to 5 to 10 years' imprisonment for his attempted murder conviction, and imposed that term to run consecutively to his third-degree murder sentence. Thus, Appellant's aggregate sentence totals 25 to 50 years' imprisonment.
Moreover, we fail to see how the jury's verdict regarding the third-degree murder of Lonnie Anderson disproves that Appellant had specific intent to kill Shanks. These were two separate victims, and the evidence indicated that Shanks was Appellant's intended target, while Anderson was an innocent bystander. Therefore, Appellant's argument in this regard is unconvincing.
Appellant filed a timely post-sentence motion challenging the weight of the evidence to sustain his convictions. After the trial court denied that motion, Appellant filed a timely notice of appeal, as well as a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he presents three issues for our review:
I. Is [Appellant] entitled to an arrest of judgment on the charge of murder in the third[-]degree as well as on the charge of attempted murder where the evidence is insufficient to sustain the verdict?Appellant's Brief at 3 (unnecessary capitalization omitted).
II. Is [Appellant] entitled to a new trial on the charge of murder in the third[-]degree and attempted murder where the verdict is not supported by the greater weight of the evidence?
III. Is [Appellant] entitled to a remand to the sentencing court for a new sentencing hearing where the court abused its discretion in sentencing [Appellant]?
In his first issue, Appellant challenges the sufficiency of the evidence supporting his convictions. We assess such claims under the following standard:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Appellant first attacks his conviction for third-degree murder. Regarding this offense, our Court has stated:
The Pennsylvania Criminal Code defines third degree murder as any killing with malice that is not first or second degree murder. See 18 Pa.C.S.A. § 2502(c). Decisional precedent further establishes that third degree murder requires no specific intent to kill. Commonwealth v. Baskerville, 452 Pa. Super. 82, 681 A.2d 195, 199-200 (1996). Rather, the mens rea for third degree murder is malice, the definition of which is well settled:Commonwealth v. Levin, 816 A.2d 1151, 1152-1153 (Pa. Super. 2003) (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)).
Malice consists of a "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured...." Malice may be found where the defendant consciously disregarded an unjustified
and extremely high risk that his actions might cause serious bodily injury.
Appellant maintains that his conviction for third-degree murder cannot stand because the Commonwealth's "entire case" rested upon out-of-court statements of Mikal Shanks, Dawonda Branch, and Kareema Townsville, each of whom recanted those statements at trial by failing to identify Appellant as the shooter. Appellant's Brief at 9. Our Supreme Court recently held in Commonwealth v. Brown, 52 A.3d 1139, 1142 (Pa. 2012), that recanting witnesses' out-of-court statements to police are sufficient evidence on which to sustain a defendant's murder conviction. Consequently, in light of Brown, Appellant's first argument fails.
Appellant also claims that his third-degree murder conviction cannot reliably rest on testimony from "witnesses [who] were perhaps influenced by threats of children being removed from the home[.]" Appellant's Brief at 9. Appellant is referring to the testimony of Dawonda Branch, who claimed that during her questioning by police, the officers threatened to put her in jail or take her children away if she did not identify Appellant as the shooter. See N.T. Trial, 4/17/12, at 146. Clearly, the jury was cognizant of Branch's allegation that she was coerced into inculpating Appellant, and it was within the province of the jury to disbelieve that testimony. Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003) (stating "the trier of fact while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence"). Moreover, even if the jury believed that Branch's identification was coerced, its verdict could still rest upon the out-of-court statements by Mikal Shanks, who told police that Appellant was the shooter, and Kareema Townsville, who identified Appellant as the man she saw fleeing the scene of the shooting. Therefore, Appellant's second argument that the evidence was insufficient to sustain his murder conviction also fails.
Next, Appellant challenges the sufficiency of the evidence supporting his conviction of attempted murder. Appellant initially emphasizes that the victim of that crime, Shanks, did not identify Appellant as his attacker at trial. However, for the reasons stated supra, Shanks' out-of-court statement to police was sufficient evidence to support the jury's conclusion that Appellant was the person who shot Shanks.
Appellant also contends that his conviction for attempted murder cannot stand because the Commonwealth failed to establish that he had the specific intent to kill Shanks. Appellant avers that the jury's verdict of third-degree murder regarding victim Lonnie Anderson proves that the jury did not believe that Appellant possessed the specific intent to kill, and that its verdict was based on conjecture and surmise.
We agree with Appellant that in order to prove the crime of attempted murder, the Commonwealth was required to prove specific intent to kill. See In re R.D., 44 A.3d 657, 678 (Pa. Super. 2012) ("If a person takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such an act, he may be convicted of attempted murder."). However, we disagree with Appellant that the Commonwealth's evidence did not satisfy this element. The Commonwealth presented Shanks' out-of-court statement to police, which established that Appellant had a motive to kill Shanks, i.e., Shanks' unpaid debt to Appellant. The Commonwealth's evidence further demonstrated that Appellant fired a gun nine times at Shanks as he fled. While no bullet struck Shanks in a vital part of his body, Shanks was hit in the elbow, and two other bullets struck Lonnie Anderson who was running in front of Shanks in the same direction. From these circumstances, it was reasonable for the jury to infer that Appellant shot at Shanks with the specific intent to kill him. See Commonwealth v. Cross, 331 A.2d 813, 814 (Pa. Super. 1974) (stating "the necessary element of intent may be inferred from the circumstances even though direct evidence thereof is lacking[,]" and that "[t]he offense of attempt with intent to kill is completed by the discharging of a firearm at a person with the intent to kill, despite the fortuitous circumstances that no injury is suffered"). 1
In his second issue, Appellant claims that his convictions of third-degree murder and attempted murder are contrary to the weight of the evidence.
A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the jury's verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations and internal quotation marks omitted).
To support his challenge to the weight of the evidence, Appellant simply reiterates the same arguments proffered in his sufficiency challenge. The trial court disposed of Appellant's weight claims, stating, "A review of the record discloses nothing so shocking as to compel the award of a new trial. Therefore, this court did not abuse its discretion by refusing to grant [Appellant] a new trial on grounds that the verdict was contrary to the weight of the evidence." TCO at 12. Despite the brevity of the court's assessment, we ascertain no abuse of discretion in its determination that the third-degree murder and attempted murder verdicts are not shocking to one's sense of justice. Accordingly, Appellant's weight of the evidence claims are meritless.
Finally, Appellant challenges the discretionary aspects of his sentence, contending that his term of incarceration is manifestly excessive and unreasonable. See Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) ("A challenge to an alleged excessive sentence is a challenge to the discretionary aspects of a sentence.")
A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute. When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, [that] the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We examine an appellant's [Pa.R.A.P.] 2119(f) statement to determine whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.Id. at 886-87 (citations, quotation marks and footnote omitted; emphasis in original).
Here, in Appellant's Rule 2119(f) statement, he avers that his sentence is unreasonable "because the court chose to only consider the seriousness of the offense and not the individual characteristics of [Appellant] nor mitigating factors that were put forth by [] counsel at [the] time of sentencing." Appellant's Brief at 15. This assertion constitutes a substantial question for our review. See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (citation omitted) (finding appellant's claim that court "focused exclusively on the gravity of the offense in fashioning the sentence imposed" raised a substantial question).
However, Appellant's underdeveloped argument, consisting only of the following paragraph, does not convince us that his sentence is improper:
The [c]ourt did not express any particular reason for imposing a maximum sentence to be followed by five to ten more years on an [a]ttempted [m]urder [b]ill that arose from the same incident and where the attempted murder victim did not appear to be seriously injured. The [t]rial [court] in sentencing reviewed the facts of the case and in essence, explained to [Appellant] that he should not have open[ed] fire on the public street. I think that all right minded people could certainly agree with that, but, in that [Appellant] had already been convicted, the focus needed to be on the appropriate sentence and the [c]ourt's comments added nothing to the fact that [Appellant] was convicted. The [c]ourt went above and beyond the [g]uidelines by 30 months and again all without any reason.Appellant's Brief at 11 -12.
Appellant arguments are belied by the record of his sentencing hearing. First, in fashioning Appellant's sentence, the court had the benefit of a pre-sentence report. N.T. Sentencing Hearing, 7/18/12, at 3. Thus, we "presume that the sentencing judge was aware of relevant information regarding [Appellant's] character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
Moreover, at the sentencing hearing, Appellant's counsel informed the court that Appellant had a difficult childhood, with his father being incarcerated and various family members using drugs. N.T. Sentencing Hearing, 7/18/12, at 3-4. Defense counsel also explained that Appellant had resorted to selling drugs because his mother was unemployed and Appellant "was the one responsible for trying to produce some income, so that they could have the necessities that they needed to survive." Id. at 5. Additionally, the court was made aware of the fact that Appellant was the father of a two year old daughter, and that Appellant wished to have a relationship with her "in future years." Id. Appellant's work history was also related to the court, and defense counsel conveyed that Appellant was interested in "vocational training, so he can learn a trade...." Id. at 7. Appellant's father then spoke on Appellant's behalf, and Appellant himself made a statement to the court. Id. at 8-11, 20-21.
During the Commonwealth's sentencing presentation, Lonnie Anderson's mother read a written statement, describing the suffering her family endured at the loss of her son. Id. at 12-17. The Commonwealth also informed the court of Appellant's significant criminal history, including the fact that Appellant was convicted in an unrelated case of shooting a victim approximately six times, and that he "has been arrested . twenty times as an adult, has violated probation and parole multiple times and is currently serving a sentence of 7-and-[one]-half to 15 years for almost taking someone else's life[.]" Id. at 19. Based on these facts, the Commonwealth sought an aggregate sentence of 36 to 72 years' imprisonment.
After the parties concluded their presentations, the court expressed its rationale for fashioning Appellant's sentence. Specifically, the court stated that it "reviewed the pre-sentence in this case, the mental health and listened very carefully to the arguments of Counsel, as well as to the statements on behalf of [Appellant] and on behalf of the decedent." Id. at 22. The court then emphasized that the victim, Lonnie Anderson, was an innocent young man who was not involved in the dispute between Appellant and Shanks. Id. It also found that Appellant's act of shooting multiple rounds of bullets in an area where innocent people were present demonstrated the significant danger he posed to the community. Id. The court further commented that Appellant's prior criminal conduct has "escalat[ed] from theft[] [and] minor crimes, to really violent crimes, culminating, ending in an act that was so senseless and violent against an innocent person." Id. at 23, 23. The court also emphasized that Appellant was convicted of shooting another individual in an unrelated case. Based on all of these factors, the court imposed an aggregate term of 25 to 50 years' imprisonment.
Based on our review of the transcript of Appellant's sentencing hearing, we are convinced that the court considered a plethora of factors, not simply the gravity of the offense, in fashioning Appellant's sentence. Ultimately, the court found (and thoroughly explained) that the facts of Appellant's instant offenses, his significant criminal history, the escalation of his criminal conduct, and the danger he poses to the community warranted a lengthy term of imprisonment. We ascertain no abuse of discretion or error of law in that determination. See Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super. 2005) (citation omitted) ("The standard employed when reviewing the discretionary aspects of sentencing is very narrow. We may reverse only if the sentencing court abused its discretion or committed an error of law."). Accordingly, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. _________________
Joseph D. Seletyn, Esq.
Prothonotary