Opinion
J-S56028-17 No. 946 EDA 2016
11-28-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. MUNIR PANKERY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0004331-2014; CP-51-CR-0004332-2014 BEFORE: BOWES, STABILE, and PLATT, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Munir Pankery appeals from the March 16, 2016 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court"), following his jury convictions for second degree murder, carrying a firearm without a license, and possessing an instrument of crime at docket number 4331 and attempted murder, aggravated assault, and carrying a firearm without a license at docket number 4332. Upon careful review, we affirm.
18 Pa.C.S.A. §§ 2502(b), 6106, 907, 2502(a), 2702(a)(1), and 6106.
The facts and procedural history underlying this case are undisputed. Briefly, on December 28, 2013, shortly following reports of an armed robbery outside of the Studio 7 Bar in Philadelphia, police responded to a shooting near the same location. Upon arriving, the police found a forty-two-year-old victim, Anthony Hinds, deceased on the ground. The next day, the police were called to the scene of a double shooting at a Chinese restaurant, located a few doors down from the Studio 7 Bar. One of the victims, Corey Wright, had been shot from a close range five times, thrice in the head, once in the back and once in the chest. Unlike Mr. Hinds, however, Mr. Wright survived the shooting.
Eventually, Appellant was charged at three separate dockets relating to the three criminal incidents near the Studio 7 bar. At docket 4331, he was charged with murder and a firearms violations in connection with the shooting death of Mr. Hinds. At docket 4332, related to the shooting of Mr. Wright, Appellant was charged with attempted murder, aggravated assault and firearms violations.
At docket 4330, which is not at issue here, he was charged with, inter alia, robbery, conspiracy, receiving stolen property and simple assault.
On August 21, 2014, the Commonwealth filed a motion for consolidation of the three dockets for a single trial. Following a hearing, the trial court granted in part and denied in part the Commonwealth's motion. Specifically, the trial court permitted the Commonwealth to consolidate the two shooting cases at dockets 4331 and 4332, but denied the consolidation of the robbery case at docket 4330.
Based on the outcome of the eventual jury trial in this case, the Commonwealth nolle prossed the charges at docket 4330.
On March 16, 2015, Appellant filed an omnibus pretrial motion, seeking, inter alia, to suppress the statements he gave to the police following his arrest. Appellant argued that his statements were involuntary. On March 3, 2016, Appellant filed a motion in limine to prevent the Commonwealth from introducing the preliminary hearing testimony of Mr. Wright, who since had passed away. Appellant argued that the Commonwealth's failure to provide him with video surveillance footage retrieved from the Studio 7 Bar deprived him of a fair opportunity to cross-examine Mr. Wright at the preliminary hearing. On March 4, 2016, the Commonwealth filed a cross-motion, requesting the trial court to allow the Commonwealth to introduce into evidence the transcript of Mr. Wright's preliminary hearing testimony and rejecting Appellant's contention that he was deprived of a fair opportunity to cross-examine Mr. Wright. The Commonwealth also filed a motion to admit evidence of Appellant's prior bad act under Pa.R.E. 404(b)(2). Specifically, the Commonwealth argued that it be allowed to introduce into evidence, under the res gestae exception, Appellant's involvement in the robbery at docket 4330 that occurred prior to the shooting cases at issue here.
Our Supreme Court "has also recognized the res gestae exception, permitting the admission of evidence of other crimes or bad acts to tell 'the complete story."' Commonwealth. v. Hairston , 84 A.3d 657, 665 (Pa. 2014) (citation omitted).
On March 7, 2016, the trial court held a hearing on Appellant's suppression motion. The trial court summarized the testimony presented at the hearing as following:
At the suppression hearing, the Commonwealth presented the testimony of Philadelphia Police Detectives Robert Daly and John Harkins, and Philadelphia Police Correctional Officer Sheila Grant-Covey. [Appellant] testified on his own behalf and presented the testimony of Dr. Lawrence Guzzardi. The following facts were established at the hearing.
On December 27, 2013, Detective Robert Daly became the assigned detective in a robbery that occurred outside the Studio 7 Bar, in the late evening hours of that day. The robbery victim, Kamar Johnson, identified [Appellant] as the robber from a photo array on December 30, 2013. Daly was also assigned a double shooting case that occurred around the corner from the bar on the night of December 29, 2013. At approximately 2:00 a.m. on the morning of December 30, 2013, Daly went to the Studio 7 Bar to retrieve any possible video surveillance footage pertaining to the shooting case. At that time, Daly observed [Appellant] by the bar and arrested him for the robbery.
Daly turned [Appellant] over to the police officers to be transported and was about to go back to retrieve the shooting video when he received a telephone call advising him that one of the shooting victims, Corey Wright, had told another detective that [Appellant] had shot him. Daly then took a photo array to Wright's hospital room at approximately 2:45 a.m., where Wright identified [Appellant] as the shooter. Daly then executed a search warrant at [Appellant's] home at approximately 9:00 that morning and recovered a firearm and clothing that appeared, from surveillance video, to have been worn by the shooter. After executing the search warrant, Daly returned to the police district and went to the holding cell to speak with [Appellant]. However, [Appellant] stated that he wanted to speak with an attorney, and therefore, no statement was taken.
While Daly was processing evidence at approximately 11:15 a.m. that same morning, [Appellant] knocked on the window of the holding cell where he was being held and informed Daly that he would "tell [Daly] what happened." Daly then took [Appellant] into an office where [Appellant] waived his Miranda rights and
admitted to participating in both the robbery and the double shooting ("first statement"). [Appellant] also made statements concerning the homicide that occurred around the corner from the Studio 7 Bar shortly after the robbery, but before the double shooting. After being interviewed by Daly, [Appellant] was interviewed by detective Antonini and Fife regarding other unrelated criminal matters that [Appellant] had mentioned in his first statement, and provided another statement ("second statement") at approximately 6:10 p.m. that same day. Police again informed [Appellant] of his Miranda rights prior to his second statement.Trial Court Opinion, 9/23/16, at 2-4 (record citations omitted). Following the hearing, the trial court denied Appellant's omnibus pretrial suppression motion. Additionally, the trial court denied Appellant's motion in limine and granted the Commonwealth's cross-motion. On the same day, the trial court also granted the Commonwealth's Rule 404(b)(2) motion.
At approximately 12:30 a.m., on December 31, 2013, [Appellant] was brought to an interview room in the homicide division of the police department. There he was interviewed by Detective John Harkins in connection with the homicide that [Appellant] referenced in his first statement. Harkins informed [Appellant] of his Miranda rights prior to this discussion, and [Appellant] agreed to speak with Harkins. At that time, [Appellant] talked with the detectives regarding the homicide, indicating that he was present, but that someone else had shot and killed [Mr. Hinds]. [Appellant] also drew a diagram of the crime scene. After Harkins confronted [Appellant] with inconsistencies between his version of the incident and the evidence seen in the video surveillance tapes, [Appellant] stated that he would not make a formal statement. Harkins summarized his discussion with [Appellant] in a written activity sheet.
Miranda v. Arizona , 384 U.S. 436 (1966) (holding that statements obtained from defendants during interrogation in police-dominated atmosphere, made without full warning of applicable constitutional rights, were inadmissible as having been obtained in violation of Fifth Amendment privilege against self-incrimination).
The case proceeded to a jury trial, following which the jury found Appellant guilty of second degree murder, carrying a firearm without a license, and possessing an instrument of crime at docket 4331. The jury also found Appellant guilty of attempted murder, aggravated assault, and carrying a firearm without a license at docket 4332. On March 15, 2016, the trial court sentenced Appellant to life imprisonment without the possibility of parole for second degree murder at docket 4331 and a consecutive aggregate term of 20 to 40 years' imprisonment at docket 4332. Appellant timely appealed to this Court.
The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant failed to comply. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant had waived his appellate claims.
On June 14, 2016, Appellant filed in this Court an "Application for Remand," seeking permission to file a Rule 1925(b) statement. On July 12, 2016, we granted Appellant's application for remand with instruction that he file a Rule 1925(b) statement within 21 days of the date of our order and that the trial court, in turn, prepare a supplemental Rule 1925(a) opinion. Appellant complied, raising three assertions of error:
[I.] The trial court erred in granting the Commonwealth's [Rule] 404(b) motion and allowing evidence of robbery, which was not consolidated, to be admitted into evidence to show "res gestae" of the case and investigation.
[II.] The trial court erred in denying [Appellant's] motion to suppress statements based on voluntariness. This occurred after Appellant testified that he was going through withdrawal, an expert on toxicology testified on the effects of withdrawal, and evidence of treatment, for withdrawal, immediately upon admission to the prison took place.
[III.] The trial court erred by denying Appellant's motion to preclude the preliminary hearing testimony of Corey Wright. Appellant did not have a full and fair opportunity to cross[-
]examine Mr. Wright regarding the video evidence, that was only passed to defense counsel after the preliminary hearing, which would [sic] substantially impeached his preliminary hearing testimony and statements to police.Appellant's Rule 1925(b) Statement, 7/18/16. The trial court filed a supplemental Rule 1925(a) opinion.
As the Commonwealth points out, to the extent Appellant appears to raise a claim under the law of the case doctrine with respect to the introduction of the robbery under Rule 404(b), such claim is waived because he failed to assert it before the trial court. Commonwealth's Brief at 16; see Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
On appeal, Appellant repeats the same assertions of error. After careful review of the record and the relevant case law, we conclude that the trial court accurately and thoroughly addressed the merits of Appellant's claims. See Trial Court Opinion, 9/23/16, at 5-12. We agree with the trial court's conclusions that (1) the robbery evidence was necessary to show the history of the investigation of the homicide and shootings, (2) Appellant's statements to the police were not given involuntarily, and (3) Appellant had sufficient information prior to the preliminary hearing to cross-examine Mr. Wright. Accordingly, we affirm Appellant's March 15, 2016 judgment of sentence. We further direct that a copy of the trial court's September 23, 2016 opinion be attached to any future filings in this case.
In reviewing appeals from an order denying suppression, our standard of review is limited to determining
whether [the trial court's] factual findings are supported by the record and whether [its] legal conclusions drawn from those facts are correct. When reviewing the rulings of a [trial] court, the appellate court considers 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. When the record supports the findings of the [trial] court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/28/2017
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Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our scope of review is limited to the evidence presented at the suppression hearing. In the interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013). Our standard of review relating to evidentiary challenges is settled: [a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. 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. Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal citations omitted), appeal denied, 128 A.3d 220 (Pa. 2015). Moreover, an appellant bears a "heavy burden" to show that the trial court has abused its discretion. Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015).