Com. v. Muhammad, R. (memorandum)

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J-S13037-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT MUHAMMAD, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2176 EDA 2012 Appeal from the Judgment of Sentence entered on November 23, 2010 in the Court of Common Pleas of Delaware County, Criminal Division, No. CP-23-CR-0004279-2008 BEFORE: BOWES, GANTMAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED MAY 29, 2013 Robert Muhammad ( Muhammad ) appeals from the judgment of sentence imposed following his convictions of aggravated assault and firearms not to be carried without a license. See 18 Pa.C.S.A. §§ 2702(a); 6106(a). We affirm. The trial court has set forth the relevant underlying factual and procedural history as follows: [Muhammad] was arrested and charged with[,] inter alia, Attempted Murder (two counts), Aggravated Assault (two counts), and Possession of a Firearm Without a License. The offenses stemmed from an incident that occurred on March 24, 2008, at approximately 12:25 a.m., when Chester Police Officers were called to the 400 block of Frank Young Avenue in Chester, Delaware County, Pennsylvania. The police found two juvenile victims suffering from gunshot wounds from a drive-by shooting emanating from a late model Ford Taurus. There were about eight teenage friends just chilling, talking, laughing and stuff in a park standing next to a generator, when a white car approached and two passengers began firing at the youths. J-S13037-13 There were shots fired from the front passenger-seat and rearpassenger seat of the vehicle. The first victim, Cephas Richardson [ Richardson ], suffered a gunshot wound to his left knee and will forever walk with a limp as a result of the injury. The second victim, David Johnson [ Johnson ], was shot multiple times, was in critical care at Crozer Chester Medical Center and recovered from his injuries.[fn] Both victims identified [] Muhammad and Daryl Beckett [ Beckett ] as the shooters. [] Johnson testified that he knew [Muhammad] because he used to be on the street that my grandma lived on and he made an in-court identification of [Muhammad]. [] Richardson identified [Muhammad] as the back-seat shooter and also testified that he knew [Muhammad] and his family prior to the shooting[,] but never had any problems with him. ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ [fn] After the conclusion of trial, [] Johnson was shot [on] April 8, 2011[,] and died [on] April 10, 2011[.] ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ On July 24, 2008, [Muhammad] was arraigned. ¦ On July 7, 2010[,] through July 9, 2010, a jury trial was held. [Muhammad] was tried with co-defendant, [] Beckett. [Muhammad] was found guilty of the charges of Aggravated Assault (two counts) and Possession of a Firearm Without a License. The jury also found the co-defendant, [] Beckett, guilty of the charges of Aggravated Assault and Possession of a Firearm Without a License. Prior to sentencing, this Court ordered a Pre-Sentence Investigation, as well as a Psychological Evaluation and Drug and Alcohol Evaluation. On October 4, 2010, [Muhammad s] trial counsel, Robert Miller, Esquire [ Miller ], presented an oral Motion for Extraordinary Relief Pursuant to Rule 704(B) ¦ asserting that the shooting victim, [] Richardson, identified [Muhammad] at trial but now was recanting that testimony. ¦ Miller advised the [trial] court that he had a DVD of an interview with the victim, [] Richardson. During the interview, [] Richardson stated that he testified mistakenly at trial regarding the identity of [Muhammad]. ¦ -2- J-S13037-13 ¦ On November 23, 2010, after a hearing, the Motion for Extraordinary Relief was denied without prejudice to raise the issue in a post-sentence motion or other post-sentence relief. Also on November 23, 2010, [Muhammad] was sentenced as follows: Information B, count 1, Aggravated Assault, 60 months to 120 months; Information B, count 2, [Aggravated Assault], 60 months to 120 months to be served consecutively to Information B, count 1; and Information C, Possession of a Firearm Without a License, seven (7) years probation to be served consecutively to B1 and B2. ¦ On December 3, 2010, [Muhammad] filed a timely Motion for a New Trial, based upon the recantation of [the] victim, [] Richardson. [Beckett] also filed a Motion for a New Trial on the same grounds. The Post-Sentence Motion evidentiary hearing was heard on June 21, 2011[,] and concluded on June 24, 2011. ¦ On June 24, 2011, beyond 120 days from the filing of the Motion, th[e trial] court issued an [O]rder finding [Muhammad s] Motion for a New Trial and [Beckett s] Motion for Post-Sentence Relief deemed denied by operation of law. [Beckett filed a timely Notice of appeal,] but [Muhammad] did not. [This Court affirmed Beckett s judgment of sentence. See Commonwealth v. Beckett, 55 A.3d 139 (Pa. Super. 2012) (unpublished memorandum).] On March 15, 2012, Muhammad filed a pro se [Post Conviction Relief Act] Petition requesting the reinstatement of his direct appeal rights. ¦ A July 2, 2012 Order was signed reinstating [Muhammad s] direct appeal rights, nunc pro tunc. ¦ On July 25, 2012, [Muhammad] filed a Notice of Appeal. On August 2, 2012, [the trial] court directed [Muhammad] to file a Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). On August 22, 2012, [Muhammad] filed a Concise Statement of Errors Complained of on Appeal[.] Trial Court Opinion, 9/28/12, at 1-5 (citations and some footnotes omitted). On appeal, Muhammad raises the following question for our review: Whether the trial court erred in allowing irrelevant and/or prejudicial -3- J-S13037-13 testimony regarding a Commonwealth witness s fear of testifying, when the record was devoid of any evidence to support such a fear[?] Brief for Appellant at 4. The admission of evidence is committed to the sound discretion of the trial court, and a trial court s ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous. Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation omitted). Muhammad contends that the trial court erred in allowing the Commonwealth to introduce irrelevant and prejudicial evidence of Johnson s fear of testifying. Brief for Appellant at 11-12. Muhammad argues that Johnson provided ambiguous statements that he did not want to testify because he would not be protected on the streets and that anything could happen to him after the trial was over. Id. at 11. Muhammad asserts that the jury could have inferred from these statements that Muhammad had threatened Johnson and prejudiced them to find Muhammad guilty. Id. at 13-15; see also id. at 16. Muhammad claims that there was no evidence to suggest that he ever threatened Johnson for testifying. Id. at 11, 15-16. Muhammad also argues that this error was not harmless and that he should be granted a new trial. Id. at 17-20. Initially, we note that threats against a witness are not admissible as an admission of guilt against the accused unless the accused is linked in -4- J-S13037-13 some way to the making of the threat. Commonwealth v. Collins, 702 A.2d 540, 544 (Pa. 1997). However, while this rule refers to the relevance of a threat that implicates the issue of guilt, evidence of fear or a threat is admissible and relevant where the purpose was not to establish guilt, but to demonstrate the effect the threat had on the witness s actions. See, e.g., id. (stating that witness s testimony regarding his fear of testifying was admissible to demonstrate his motive for providing conflicting statements about the crime); Commonwealth v. Ragan, 645 A.2d 811, 824 (Pa. 1994) (stating that questioning a witness about threats against his family was admissible to explain the witness s prior inconsistent statement). Here, the trial court set forth the relevant testimony in question and determined Muhammad s claims were without merit. See Trial Court Opinion, 9/28/12, at 7-15. Indeed, Johnson did not identify Muhammad as the source of a threat, nor did the Commonwealth attempt to establish that Muhammad was the source of any threat. The jury only heard testimony of Johnson s fear and reluctance to testify because he could not be protected after the trial concluded. See N.T., 7/8/10, at 40-41; see also id. at 43 (wherein the Commonwealth pointed out that Johnson was slumping in the chair while testifying and that his demeanor while testifying went to his credibility); Commonwealth v. King, 990 A.2d 1172, 1180 (Pa. Super. 2010) (concluding that fully informed credibility determinations cannot be made without observing the demeanor of the witness). Thus, the trial court -5- J-S13037-13 did not abuse its discretion in allowing the jury to hear Johnson state that he was reluctant to testify. See Collins, 702 A.2d at 544 (concluding that where the witness did not identify the defendant as the source of the threat, the line of questioning was permissible to demonstrate [the witness ] motive for changing his testimony[, that is,] that he was afraid of the consequences if he testified truthfully. ); Commonwealth v. Randall, 758 A.2d 669, 678 (Pa. Super. 2000) (holding that the admission of testimony of the witness s fear was proper as it was limited to the narrow purpose of establishing the emotional state of the witness at the time he gave his prior inconsistent statement). Accordingly, we affirm on the basis of the trial court s Opinion. See Trial Court Opinion, 9/28/12, at 7-15.1, 2 Judgment of sentence affirmed. 1 We note that the trial court cites to California law to support its reasoning that the testimony was properly admitted. See Trial Court Opinion, 9/28/12, at 9-10. While this law is persuasive, we need not rely upon it to support the conclusion. 2 With regard to the trial court s harmless error analysis, we note that Johnson repeatedly identified Muhammad as the shooter. See, e.g., N.T., 7/8/10, at 27, 31-32 (wherein Johnson identified Muhammad at trial); id. at 37 (wherein Johnson told the police that Muhammad had shot him at the hospital after the shooting); id. at 39-40 (wherein Johnson picked Muhammad s photo from a photo array). -6- J-S13037-13 Judgment Entered. Prothonotary Date: 5/29/2013 -7-

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