Opinion
J-S10027-18 No. 3479 EDA 2016
04-17-2018
COMMONWEALTH OF PENNSYLVANIA v. KAREEM J. STANSBURY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 26, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006484-2014, CP-51-CR-0006485-2014 BEFORE: BOWES, J., OLSON, J., and NICHOLS, J. MEMORANDUM BY OLSON, J.:
Appellant, Kareem J. Stansbury, appeals pro se from the judgment of sentence entered on October 26, 2016. We affirm.
Prior to trial, Appellant's court-appointed counsel, Richard Giuliani, Esquire, filed a petition to withdraw as counsel; within the petition, Attorney Giuliani averred that Appellant "wishes to represent himself." See Petition to Withdraw, 12/9/14, at 2. As a result, on December 16, 2014, the trial court entered an order, which took the petition to withdraw under advisement and ordered a psychiatric evaluation to determine Appellant's competency and ability to represent himself. On January 16, 2015, the trial court held a waiver of counsel hearing, where the trial court colloquied Appellant on his request to proceed pro se. N.T. Waiver Colloquy, 1/16/15, at 1-18; see also Pa.R.Crim.P. 121(A) and (C). At the conclusion of the hearing, the trial court granted Appellant's request to proceed pro se and appointed David Simon, Esquire to be Appellant's stand-by counsel. N.T. Waiver Colloquy, 1/16/15, at 8. We note that Appellant has not requested that counsel represent him in this appeal and he has, instead, continued his pro se representation. C.f. Commonwealth v. Phillips , 141 A.3d 512, 521 (Pa. Super. 2016) ("once a defendant has made a competent waiver of counsel, that waiver remains in effect through all subsequent proceedings in that case absent a substantial change in circumstances").
The trial court ably summarized the facts that underlie this appeal:
On February 23, 2014, Ms. Rachel Ostrow was living at [a home on East Tioga Street, in Philadelphia. She lived] in a residence she shared with a woman named Patricia [Clarke], Ms. [Clarke's] two children and, at times, a woman names Luz Ambert-Prieto. That same day, all of these individuals were at the residence[,] as was Abdul Scott, Appellant's step-brother.
At about 11:00 p.m., Ms. Ostrow was sitting on the porch of the residence with Abdul Scott smoking "K2," i.e. synthetic marijuana, when Appellant drove up in a [four-door, dark-colored] car with tinted windows. Appellant stopped the car outside the residence, exited it, and began firing a handgun[,] which he rested on the roof of the car. Ms. Ostrow was struck in the back by bullet fragments as she [and] Abdul Scott fled into the residence. Pressure was applied to her wounds. As he tended to Ms. Ostrow, Abdul Scott began apologizing to her because he said his brother Kareem had shot her.
Ms. Ostrow was taken to a nearby hospital where her injuries were treated. The next day, she gave police a statement wherein she described the shooter as follows: "Tall, black male, dark skin. He had a beard and mustache and he was husky. He had on a black shirt?" At trial, Ms. Ostrow could not identify the shooter, which she was also unable to do at the scene. She also could not recall whether or not she saw the shooter holding the gun, flashes emanating from the gun, or if the shooter said anything during the incident. However, she told police when she was interviewed that she had witnessed those things and that the shooter said, "Yo" or "Abdul." In response to a question by the prosecutor about the contents of her statement, Ms. Ostrow averred that if she did tell the police about those matters, she had spoken the truth.
Ms. Ambert-Prieto was on the porch just prior to the shots being fired[,] smoking K2 with Ms. Ostrow. While Ms. Ambert-Prieto was on the porch, Abdul Scott ran onto the porch, sweating, out of breath[,] and [with rumpled clothes]. Ms. Ambert-Prieto jokingly asked if he was running from the police. Abdul Scott responded that he was running from his brother Kareem. He then explained that he and his brother had just had an argument. After he arrived he also smoked some of the K2.
Ms. Ambert-Prieto went inside to get boots belonging to Ms. Ostrow and when she did so, she heard two shots. She immediately went outside and saw Abdul Scott tending to Ms. Ostrow's gunshot wounds as she lay on the porch. Abdul Scott took Ms. Ostrow inside and, after putting her on the couch, continued to tend to her wounds. Ms. [Clarke] called 911. During the call, Abdul Scott and the other people present began screaming, all of which was recorded by the police dispatcher who answered the call. The screaming included identifying the shooter as Kareem Stansbury, Abdul Scott's brother.
Police arrived and took Abdul Scott and Ms. Ambert-Prieto to a police station where both of them were interviewed. Ms. Ambert-Prieto identified a photograph of Appellant during the interview. She admitted giving the police a false address and explained that she did so because she did not want [] the police to know she resided [at the East Tioga Street home]. During Appellant's questioning of Ms. Ambert-Prieto, she [testified] that she saw Appellant armed with a hand gun a few months prior to the incident.
At trial, Abdul Scott took the stand. He began his testimony by noting that, although he had a half-brother named Kareem Stansbury, he did not then see him in the [courtroom]. He then testified that on the day of the shooting, he and Kareem had argued inside his mother's house but that the argument did not involve violence. He denied that it spilled into the street and stated that after it broke up, he went to [the East Tioga Street house].
Abdul Scott testified that when he arrived at the residence, Ms. Ostrow was on the porch and Ms. Ambert-Prieto was
inside the residence. According to Abdul Scott, [Ms. Ambert-Prieto] remained in the house the entire time. While on the porch, Abdul Scott heard gunshots and saw that Ms. Ostrow had been shot. He rendered aid to her and took her inside the residence.
After Abdul Scott gave the foregoing testimony, he was confronted by the prosecutor with the contents of a statement he gave Philadelphia Police Detective Joseph Newbert on February 24, 2014, approximately an [hour-and-a-half] following the shooting. In his statement, Abdul Scott admitted that he and [Appellant] had a fist-fight at his residence [and] that it was broken up by his other brothers. He further told police that after the fight broke up, he told his brother Jabbar that he was going to [the East Tioga Street house].
He further told police that he was sitting on the porch at about 11:00 p.m., with Ms. Ostrow, when [Appellant] drove down the street in a 1995 purple Chevy Cavalier registered to his mother. He told police:
When he came down the street, he stopped right in front of the house, got out and stood in the street and fired his gun two times at me. The first shot missed, and the second shot hit Rachel in the hip. Then Kareem jumped back in his car and drove off towards Ella from Tioga.
Abdul told police that "Kareem" possessed a silver .22 caliber hand gun, that "Kareem" threatened to shoot him earlier in the evening, and that he cursed at him during the incident on Tioga Street when Ms. Ostrow was shot. Abdul Scott ended the interview by identifying a photograph of Appellant, who he called "Kareem".
After giving his statement, [Abdul] Scott acknowledged that the photograph he identified for police depicted Appellant. He testified that Appellant did not shoot at him on the night of the incident, and that he did not tell police that Appellant had done so. He testified that he only told police that Appellant was the brother with whom he was fighting earlier in the evening.
After disavowing much of his statement, Abdul Scott denied that the voice on the 911 tape, wherein the speaker named "Kareem" as the shooter and described him, was his. He ended his testimony by acknowledging that he was then in custody awaiting sentencing in an unrelated matter.
On cross-examination, Abdul Scott denied anything that could be considered incriminating with respect to Appellant. He also testified that he was intoxicated on the night of the incident and had smoked K2 while on the porch.
Philadelphia Police Officer Ricardo Rosa was on routine patrol at 11:16 p.m., when [he responded] to the scene of the shooting. Upon arrival, Abdul Scott exited [the East Tioga Street house], ran to the officer, and urged him to hurry because there was a shooting victim inside the residence. The officer then encountered Ms. Ostrow, placed her in his police vehicle, and drove her to a nearby hospital.
When the officer first encountered Abdul Scott, he was very agitated and demonstrative. The officer testified that Abdul Scott told him that his brother, Kareem Stansbury, had driven up in a purple [two-door] Chevrolet and pointed a gun at him, which he then fired at him. Abdul Scott gave the officer a description of the shooter.
Patricia Clarke was inside the [East Tioga Street home] when Ms. Ostrow was shot. She directed Ms. Ostrow, Ms. Ambert-Prieto, and Abdul Scott to go outside after they said they were going to smoke K2 inside the residence. Approximately [15] minutes after they went outside, Ms. Ambert-Prieto ran into the residence screaming that Ms. Ostrow had been shot. After observing Abdul Scott treating Ms. Ostrow, Ms. Clarke called 911. As she was on the phone with a police dispatcher, Abdul Scott was yelling that his brother, Kareem, who Ms. Clarke identified as Appellant [], shot Ms. Ostrow. Ms. Clarke testified that the male's voice on the 911 recording identifying Appellant as the shooter was that of Abdul Scott.
Ms. Clarke was taken to the police station where she was interviewed. Ms. Clarke stated that she was completely sober and lucid. She did not appear to be intoxicated according to the officer who interviewed her.
Appellant presented evidence of alibi consisting of testimony and documents he argues proved that he was at a minimart located about [20] minutes from the scene of the shooting. He also introduced evidence that he did not fight with his half-brother Abdul Scott.Trial Court Opinion, 6/26/17, at 2-7 (internal citations and footnotes omitted).
On May 27, 2016, the jury found Appellant guilty of two counts of attempted murder, three counts of aggravated assault, and one count each of carrying firearms in public in Philadelphia and firearms not to be carried without a license. N.T. Trial, 5/27/16, at 53-54. On October 26, 2016, the trial court sentenced Appellant to serve an aggregate term of 35 to 70 years in prison, followed by 7 years of probation, for his convictions. N.T. Sentencing, 10/26/16, at 8-9.
18 Pa.C.S.A. §§ 901(a), 2702(a), 6108, and 6106(a)(1), respectively.
Appellant filed a timely notice of appeal. He raises eight claims in his brief:
[1.] Whether the [trial] court violated Appellant's right to a fair and impartial tribunal, secured by the 14th Amendment to the United States Constitution, as well as [Article 1, Section] 9 of the Pennsylvania Constitution when the trial judge agreed to recuse himself and ten days later denied the recusal request and tried the case[?]
[2.] Whether the suppression court erred by denying to suppress Abdul Scott and Luz [Prieto] single photo arrays identifications by relying on inadmissible hearsay testimony?
[3.] Whether the [trial] court erred by denying [] Appellant funds to obtain expert witnesses to testify in support of defense [theories]?Appellant's Brief at 6-7 (some internal capitalization omitted).
[4.] Whether [] Appellant's trials commenced in violation of the speedy trial clause?
[5.] Whether the [trial] court violated Appellant's rights to confront and cross-examine the witnesses against him, secured by the 6th and 14th Amendment to the United States Constitution, as well as Article 1[, Section] 9 of the Pennsylvania Constitution, when the trial court over defense objection allowed the Commonwealth to read into the record Rachel Ostrow's medical diagnosis without the treating physician being available for cross-examination?
[6.] Whether the [trial] court violated [Appellant's] right to a fair and impartial trial, secured by the 14th Amendment to the United States Constitution, as well as Article 1[, Section] 9 of the Pennsylvania Constitution, when the trial judge denied the jury's request to deliberate with properly admitted defense exhibits?
[7.] Whether the [trial] court violated [Appellant's] right to a fair and impartial trial, secured by the 14th Amendment to the United States Constitution, as well as Article 1[, Section] 9 of the Pennsylvania Constitution, when the trial judge submitted to the jury the Commonwealth's written jury instructions on attempted murder, aggravated assault, [and] violation of the uniform firearms act?
[8.] Whether the [trial] court erred in denying [] Appellant a trial based on after discovered evidence?
We have reviewed Appellant's brief, the relevant law, the certified record, the notes of testimony, and the opinion of the able trial court judge, the Honorable Daniel D. McCaffery. We conclude that there has been no error in this case and that Judge McCaffery's opinion, entered on June 26, 2017, meticulously and accurately disposes of Appellant's issues on appeal. Therefore, we affirm on the basis of Judge McCaffery's thorough opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge McCaffery's opinion.
The Commonwealth did not file a brief in this case.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Bowes joins.
Judge Nichols concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/17/18
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