J-A30011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. KANIKA OUM Appellant No. 1939 EDA 2013

Appeal from the Judgment of Sentence June 13, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001090-2012

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.* MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30, 2015 Kanika Oum appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm in part, and vacate and remand in part, and we rely upon the opinion authored by the Honorable Charles J. Cunningham, III.

On November 1, 2011, Oum and his co-defendant, Samneang Samneang,1 shot a fifteen-year old boy in the face near the intersection of 75th Street and Buist Avenue in Southwest Philadelphia. Following trial, a

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* Retired Senior Judge assigned to the Superior Court.

Co-defendant’s name is Samneang Sin, however he was charged and tried as Samneang Samneang. See N.T. Trial, 2/27/13, at 49-50. Samneang’s related appeal is docketed at 1824 EDA 2013.

J-A30011-14

jury convicted Oum of attempted murder,2 criminal conspiracy,3 aggravated assault,4 violation of the Uniform Firearms Act (VUFA),5 and possession of an instrument of crime (PIC).6 The court sentenced Oum to a term of imprisonment of 15-30 years for attempted murder, a consecutive term of 5-10 years on the conspiracy conviction, and a consecutive term of 2-5 years on the VUFA conviction, for an aggregate term of 22-45 years’ imprisonment. The court imposed no further penalty on the PIC conviction. The court also determined the aggravated assault conviction merged for sentencing purposes.

Oum filed a timely appeal to this Court. The trial court ordered Oum to file a Rule 1925(b) statement within 21 days. See Pa.R.A.P. 1925(b).

After seeking an extension of time, which the court granted, Oum filed his Rule 1925(b) statement on September 12, 2013. He now raises the following issues for our review:

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18 Pa.C.S. §§ 901(a), 2502(a).

18 Pa.C.S. §§ 903(a), 2502(a).

18 Pa.C.S. § 2702(a).

18 Pa.C.S. § 6106.

18 Pa.C.S. § 907(a).

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1. Did the trial court err in permitting the Commonwealth to repeatedly elicit hearsay?

2. Did the trial court err in permitting testimony that Defendant had been seen with a firearm prior to the shooting, where the incident was remote and unrelated, and Defendant was not the alleged shooter in the case at trial, making the probative value of this evidence outweighed by its prejudicial impact on the jury?

3. Did the trial court err by permitting the prosecutor to elicit prejudicial testimony that Defendant’s brother had asked a witness not to come to court?

4. Did the trial court err by refusing to declare a mistrial after the prosecutor impermissibly implied during his closing argument that Defendant had a burden to produce witnesses and evidence in his defense?

5. Should this Court remand the matter for re-sentencing in light of the lower’s court’s sua sponte recognition that Defendant’s sentence is improper?

Appellant’s Brief, at 14.

Upon review of the parties’ briefs, the relevant law, and the record as a whole, we find that the trial court has correctly disposed of issues 1-4 in his opinion. See Opinion, 2/7/14, at 8-19. Therefore, we affirm the convictions based on Judge Cunningham’s opinion.

With respect to Oum’s fifth issue, the trial court acknowledged in its Rule 1925(a) opinion that Oum’s sentence was illegal. The court sentenced Oum to 15-30 years for attempted murder, and a consecutive term of 5-10 years on the conspiracy to commit murder conviction. As the trial court recognized, Oum could not be sentenced for two inchoate crimes for conduct designed to culminate in the same offense, that is, murder. Section 906 of

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the Crimes Code precludes conviction of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy “for conduct designed to commit or to culminate in the commission of the same crime.” 18 Pa.C.S. § 906. See Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013) (sentence for conspiracy and attempted murder should have merged); see also Commonwealth v. Martinez, 438 A.2d 984 (Pa. Super. 1981) (where criminal conspiracy to commit burglary and subsequent attempted burglary constituted “conduct designed to culminate in the commission of the same crime,” that is, burglary, defendant should not have been sentenced for both attempt and conspiracy, but should have only been sentenced for one or the other); Cf. Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012) (where defendant's convictions for two inchoate crimes had separate criminal purposes they did not merge.)

We agree with the trial court’s assessment. Therefore, we vacate the judgment of sentence and remand for resentencing in accordance with 18 Pa.C.S. § 906. See Commonwealth v. Watts, 465 A.2d 1267 (Pa. Super. (1983). Counsel is directed to attach a copy of the trial court’s opinion in the event of further proceedings in this matter.

Affirmed in part; vacated and remanded in part. Jurisdiction relinquished.

-4- J-A30011-14

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/2015

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COURT OF COMMON PLEAS FIRST JUDlCL<IL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION FILED FEB -7 2014 Criminal Appeals Unit first JudiCial District of PA COMMONWEALTH OF PENNSYLVANIA ..

1939 EDA 20 l3 v. CP·S\-CR-0001090-2012 KLNIKA OUM

OPINION 1111111111111111111111111 7113717781

STATEMENT OF THE CASE Defendant appeals his conviction for attempted murder. criminal conspiracy and other related charges arising out of Defendant's participation in a shooting which occurred on November 1, 2011. Defendant raises numerous complaints regarding evidentiary rulings made by the Court during hi s trial. Defendant's complainL<; are withoUl merit

PROCEDURAL HISTORY On November 3, 201 J Defendant was arrested and charged with inlcr alia, I) Criminal Attempt pursuant to 18 Pa.C.S.A. 901(a) to commit Murder pursuant to 18 Pa.C.S.A. 2S02; 2) Aggravated Assault pursuant to 18 Po.C.S.A. §2702(a); 3) Criminal Conspiracy pursuant 18 Pa.C.S.A. 903(a) to commit Murder pursuant to 18 Pa.C.S.A.

2502; and 4) Possession of an Inslrument of a Crime With Intent pursuant. 10 18 Circulated 01/05/2015 10:31 AM

P•. C.S.A. 907(a). On March 4, 2013, at the conclusion of his jury trial Defendant was found gui lty of the above charges. On June 13,2013 Defendant was sentenced to three consecutive terms of confinement in a slate correctional fac ility: three to eight years on the charge of attempted murder~ two to five years on the charge conspiracy to commit murder; and one to two years on the charge of possession of an instrument of a crime. for a total period of confinement of six to fifteen years. The charge or aggravated assault having merged wi th the charge of attempted murder. no penalty was assessed.

On July 2, 2013, Defendant time ly filed the instant appeal to the Superior Court of Pennsylvania. On July 9. 2013, this Court filed and served on Defendant an Order pursuant to Ru le 1925(b) afme Pennsylvania Rules of Appellate Procedure. On August 1,2013 Todd Michael Mosser, Esq. was appointed to represent Defendant as appellate counsel. On August 9, 2013, th is Court fil ed and served on Defendant an Order pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, direct ing Defendant to file and serve a Statement of Errors Complained of on Appeal, within 21 days of the Court's Order. On August 27, 2013, Defendant ftled: "Appellant's Request for Extension of Time to f ile 1925(b) Statement," which the Court granted. On September 3, 2013 the comp lete notes of testimony became available, 1 On September 12, 20 I3 Defendant timely filed his Statement of Errors Complained of on Appeal raising fi ve i5sues, namely: a, "The Court erred by allowing Vyrcak Omn to testify to h.earsay statement made to him by Seagull Mok, see, N.T. 2127/13 at 192- 195;

IOn AugLlS15. 2013 the Irial nutes of testimony became available. On August 27, 2013 the sentencing nOle.<; of Ie slim any bceama available. On September 3, 2013 the notes ofle5timony rel:lting to the ~ndering oflhe jury's verdict and the polling ofthe jury became available.

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b. The Court erred by allowing the Commonwea lth to elicit testimony from Vyreak Qum about seeing Defendant with a handgun in a prior, unrelated incident, where the facts of this unrelated incident were too remote, such that its probative value waS outweighed by its prejudicial impact On the jury, N.T. 2/27/ 13 at 2 19-224; c. The Court comm itted reversible error by allowing the Co mmonwealth to call undue attention to Vyrcak Oum's prior statements by erroneously allowing multiple Commonwealth witnesses to olTer hearsay testimony about VjTeak Qum's statements, which in and of themselves contained even more hearsay sta'ements; N.T. 2128/13 , 58-62; 8 1-98 d. Tllt: Court erred by allowing the Commonwealth to elicit testimony from Seagull Mok abou t Defendant's brother te lling him to not come to court, as the probativc value of thi s evidence was outweighed by its prejudicial impact on the jury, N.T. 3/1/13, 6·7; and, e. The prosecutor commilLed prosecutori al misconduct that warranted a mistrial when during closing argument he impennissibly commented on Defendant 's burden of proof and right to remain silen~ N .T. 3/ 1/13; 11 5- 11 9."

Defendant's first and third complaint's essentially address the same issue and, therefore, will be addressed together.

EVIDENCE AT TRIAL The complainant, Qucozcl Members, testified thal on the eveni ng of November 1, 11 he was fiftcc n years old. At approximately 7:30 p.m., he was walking with three of his friends, Shyeheim, Nasir and Sanuny. They encountered two asian males in the vicinity of 75 th Street and Buist Avenue in the southwest section of the City of Philadelphia. (NT., 2n7n0!3, pgs. 81 , 83) A!J he approached, he noticed one of 'he males leaning over a dark colored Honda and the other male sitting in the car. Hc Circulated 01/05/2015 10:31 AM

described the Honda as having blue headlights and a loud motor. (N.T., 212712013, pgs.

84,90-93,97) Mr. Members testified that he did not get a good look at the person in the car and was unable to idcnlify him. (N.T., 2/2712013, pgs. 90, 91, III. 132) However, he did testify tllat this per.)on was the driver and that the only featu re he could identify was thai bis hair was "spiky." (N.T., 2127/2013, pgs. Hi8- 110) As he drew near, an argument ensued and ended when the male outside the car said to the person inside "it's enough playing. pop the trunk." (N.T., 2127/2013 , pgs. 83, 85, 90, 91, 120) Taking this to mean Defendant "probably" had a gun, Mr. Members immediately left the scene, and went to Shyehcim' s bou."e on the next block. (N.T., 212712013, pgs. 86, 88) Mr. Members testified that, while silting on the front steps of Shyeheim's house, he noticed the same car circling the block several times and acting "like they was looki ng for me." (NT., 2127/2013, pg, 93) He also testified that, on secing Ibis, he " felt threatened" and went to his own home, a short distance away, retrieved a .9 mm semi automatic hand gun Cram his back yard and returned 10 his fr iends. (N.T., 212712013 . pgs.94-96) Not seeing thc car, he and his friends went to a park "five or six" blocks away and retumed about five or len minutes Later. (N.T .• 212712013 , pgs. 97-99) As they I!ntered the alley behind Shyeheim's house, Mr. Members heard the engine of the ear and tben saw the blue headlights when it tunted into the alley ahead of them. (N.T.,2127n013. pgs. 97-99) The car then approached and slOpped next to him. Mr. Members saw the

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passenger window of the car roll down and was shot once in the face from inside the passengerside of the car. (N.T., 2/2712013, pgs. 100-102) After being shot, Mr. Members Tan back to his house, with two of his friends, cal led 911 for help and reported the shooling. (N.T., 212712013, pgs. 102- \04) He also testified that the responding police officers immediately placed him in the back of their patrol car and "rushed" him to the hospi tal for treatment. (N.T., 2f2712013, pg. 104) Corroborating Mr. Members' testimony, tvlr. Nasir Abdul-Raheem (Nasir),2 testified that on the evening of November 1,2011 at approximately 7:30 p.m., while walking with Mr. Members and two other friends they encountered two asian males in the vicinity of 7S lh Street and Buist Avenue in the southwest section of the City of Pltiladelphia. (N.T., 2127120 13, pgs. 146, 147) As they approached, he noticed one of lhe males leaning over a dark colored Honda with blue headlights and a loud motor, talking to the other male sining in the car. Although he was able to identify Ihe person standing outside the car, Nasir testified that he unable to see the person inside the car but described him as the driver and having "spiky hair." (NT., 212712013, pgs. 147·149, 15\,164) As they drew near, a verbal altercation ensued between Mr. Members and the male leaning over the car ending when Derendant told the person inside the car to "pop the trunk." On hearing this he and his friends went to Shyeheim's house on the next block. (N.T., 2127/2013, pgs. 152-154) Nasir testified that, on arriving at Shyeheim's house, Mr. Members announced he was going to get " the gun." (N.T., 2127/2013, pg. 153) Nasir also observed the Honda

! Nasir testified thai al the lime oflriat he '''115 sixteen years old, making him founeen years old on November 1, 20 I I.

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circling the block "five or six times" in a !ilow deliberate manner and felt nervous and scared, prompting him to hide behind a van parked in front of the house. (N.T., 2/2712013, pgs. 154, 155) When Mr. Members returned with a gun. the group went to a park and stayed approx:imately fifteen minutes before returning to Shyeheim's house. (N.T., 212712013 . pgs. ISS, 156) As they approached the back of the house through thc alley, Nasir observed the Honda approach them and stop ncxt to them in the middle of the alley. (N.T., 212712013, pgs. 156.159) Nasir then heard three shots and saw that Mr. Members, who was stundi ng next La him, had been shot (N.T., 2127120 I 3, pgs. ISO, 160) Mr. Seagull Mok testified that on November 1, 2011, whi le dropping his car off in front of Vyreak Oum's house for repairs, he observed a black Honda Accord with two occupants pull up in front of the house. He described the car as having ';purple" headlights and a loud muffler. He testified that one of the occupants's cxited the car and asked him where Vyreak was. (NT., 31112013, pgs. 9- 12) He described this person as being "kind of mad about something" and saying he "was going to fuck the bull up, or somcthing like thaL " (NT., 3/112013, pgs. 12, 13) After Utis cxchange, this person got back in and the car left the scene. ).1r. Mok testified that, approx.imately five minutes later, he heard gun shots and the saw the Honda at the end of the block. (NT., 3/ 1120 13, pgs. 15, 16, 21 , 22,33) Mr. Mok then called Vyreak tell ing him not to come outs ide. (NT., 3/112013, pg. 17) Mr. Vyreak Oum testified that on the evcning of November I, 2011 he wenl directly to bed at approximately 7:05 p.m. after refurning from work. (N.T., 212712013 , pgs. 187, 188) Sometime after goiDg to bed he was awakened by a phone call from Mr.

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Mok, who told him he was in front of his house dropping his car off for repairs and told him "don' t come out here, there 's gunshots." (N.T., 2127/2013, pgs. 189, 192-1 95) Shortly after this conversation, the police arrived at his dOOf, arrested him and took him to Southwest Detectives where he gave a fonnal signed statement. (N.T..

212712013, pgs. 196, 197) In his statement Mr. Dum stated that, afte r going to bed, "I got a phone call from a friend named Seagull Mok stating my cousin, Kanika Oum, and ano ther guy named Sam came around in a black Honda Accord to the 7400 block of Buist Avenue and asked for me." (N.T. , 2/27120 13 , pgs. 201, 202) "Seagull then stated that Srun sbouted out from the passenger window, I'm go ing to kill this --['m go ing to kill thc boy while they were in the car." (N .T. . 2127120 13, pg. 205) On concl uding the call , he stated: "Seagull then told me not to come outside and hung up." (N.T., 212712013, pg.

208) Mr. Own further testified that he had seeu Defendant in possession of a gun prior to the shooting of Mr. Members. (N .T., 2127(2013, pgs. 2 19, 223) However. Mr. Oum equi vocated as to when, simply sayi ng it was "sometime: before the incident." (N.T., 2127120 13, pg. 226) Detective Robert Conway testified that he was the assigned investi gator fo r the investigation of the shooting of Mr. Members. He testified that Vyrcak. Oum was initial ly identified as a possible suspect in the shooting and was brought to the Soulhwe.c;t Detectives Division for questioning on November 2, 20 11 at approximately 2:45 am. as part of his investigation. (N .T ., 212812013 , pgs. 31 , 32, 40 , 45 , 46) He also testified that Mr. Oum wns initial ly interviewed by Detective Pal'k. (N.T., 212812013, pgs. 46. 47. 59)

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Detective Conway testified that on November 2, 2011 , at approximately 7:00 p.m., he took a second fo llow.up written signed statement from Mr. Oum. (NT., 2/28/2013, pgs. 46, 47, 59) Detective Conway testified that when he asked him i[hc had evcr seen Defendant "in possession of any ftrcanns," a Mr Ourn responded: «H was either at my house or at the Cambodian Temple about three weeks ago when he called me and asked to talk to my brother. He asked me to pick him up and come over to the house and chill because he was depressed about his girlfriend. We were inside of the temple when he pulled out n Chrome gun from below his belt buckle and whipped it down and put it back·· I'm sorry, wiped il dovm and put it back." (N .T., 2128/2013. pgs. 60, 61)

DISCUSSION OF THE ISSUES RAISED I. THE ADMISSION OF IDENTIFrCATION TESTIOMNY WAS RELEVANT AND PIWBATIVE.

Tn his firs t complaint, Defendant complains: "The Court crred by allowing Vyreak OUm to testify to hearsay statement made to him by Seagull Mok." In his second complaint, Defendant complains: "The COUrt committed reversible errOr by allowing the Commom....ealth to call undue attcntion to Vyreak Oum 's prior statements by erroneously allowing mul ti ple Commonwealth witnesses to offer hearsay testi mony about Vyrenk.

Own' s statements, which in and of themselves contained cven more hearsay statements." Defendant's complai nts misstate the record. Vyrcak Oum did testify that he received a phone call inunediately after the shooting from Seagull Mok. Only one othL!r witness, Detective Deayoung Park. who took a s igned statement from Mr. Oum, testified with regard to the phone call from Mr. Mok. Defendant's complaints are without merit.

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Defendant's complaint implicates his right to confrontation under the 6th Amendment under !.he United Slates Constitution and Article I, § 9 of the PerulsyLvania Constitution. Thc Supreme Court of PennsyLvania, in COllllllon wealth v. B rady, 5 10 Pa. 123. 507 A2d 66 (Pa. 1986), held that out of court testimonia1 statements made by non- party witnesses are admissible as substantive evidence if such witness is available to testify. Brady held : "The simple fact is that ' the usual dangers of hcarsay are largely nonexistent where the witness testifies at trial. California v. Greell. SlIprfl at 399 I u.s. / 55, 90 S.O. at /911. By hypothesi s in these situations. (he out-of-court declarant is now a witness in-collrl where he or she is placed under oath, subject to cross-examination and under observation by the finder of fact. See Common wealth v. Thil'kield, supra at 502 Pa. 542, 467 A,2d 323 (McDennott, 1. dissenting: 'the fact that [the oath and Cross- examination requirement] are supp lied in u\e current trial defuses hearsay concerns and provides the ract-finder with ample opportunity to determine truth.'). Indeed, the cross- examination lo which a recanting witness is subjected will likely be meaningful and vigorous since the witness is already 'on the spot' in having to explain the discrepancies between earlier statements and direct testimony, or deny that the earlier stateme nts were made at all." [d. 507 A.2d at 69 (In accord Commonweulth v. Mollelt, S A.3d 291 (pa. Super, 2010); Commotr wenlth v. Charlloll, 906 A.2d 554 (pa. Super. 2006) The recently amended Pennsylvania Rules of Evidence CPa.R.E,) provide in part al Rule H03.1 "The following statements arc not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement: "(1) Prior Inconsistent S tatcmcnt of Declar:mt-W irness. A prior statement by a declarant-witness that is inconsistent with the declarant-witness 's testimony and: ... (B) is

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a writing signed and adopted by the declarant.. ...(2) Prior Statement of Identification by Declarant-Witness. A prior statement by a dedamnt·witness identifying a person or thing, made after perceiving the person or thing, provided that the declarant-witness testifies to the making of the prior statement." The only witness to identify Defendant as thc driver was Seagull Mok. Neither the victim of the shooting, Mr. Members, nor his companion, Nasir, was able to identify the drive r of the car involved. Mr. Dum's testimony that he received a eall from Mr. Mok telling him that, Defendant. his cousin, had been in front of his house looking rOT

him and not to come out because of gun shots clearly relates to the identity of one of the perpetrators. (N.T., 2127/2013. pgs. 193, 194, 202) Mr. Oum 's testimony Ulal Mr. Mok had seen lhe car involved in the shooting and could identify its occupants is clearly admissible pursuant to Pa.R.E. 803.1(2).

Detective Park testified that b.e took a signed written statement from Mr. Qum on November 2, 2011 , shortly afier Mr. Members was shol. (N.T., 212812013, pgs. 81 , 84) Detective Park also testified that when he asked him what he kzlCW about the shooting Mr. Own responded that he had received a phone call from Mr. Mok who told him: "Kinika Dum and another Asian guy named Sam came around in a black I'fonda Accord to the 7400 block of Buist A venue and asked for me . Seagull said they didn't say why they were looking for me, but Seagull told them that he didn't know where I was. Seagull Ihen said that Sam shouted out from the passenger's side window, <I'm going to kill the boy' . whilc they were in a car. Seagulllhen said Kinika drove away. Within a minute Seagull said he heard gunshots coming from my cousin, Kinika's, Honda Accord . St:agull lold me thal he got into one of his friend's car and left the area. Seagull then told me not

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to come outside and he hung up." (N.T., 212812013 , pgs. 87- 89) When asked if Mr. Mok told him who was driving the car, Mr. Oum responded: " My cousin, Kinika Oum, and Sam was the front passenger," (N.T., 2128/2013 . pg. 90) Detcctive Park 's testimony was confined to the written statement he took from Mr. Oum, since Mr. Mok did appear and testify, it was clearly admissible pursuant to Pa.R.E. 803.[(1 )(B).

Prior to admiuing the testimony of both Mr. Oum and Detective Park, the Court made it clear that the testimony \'IaS being admitted solely on the condition that Mr. Mok \vouJd in fact testify and be subject to Cross examination. (N.T., 2/27/20 13, pg. 193) (N.T., 212812013 , pgs. 82. 88) Prior to permitting the testimony of Detective Park to proceed regarding the statement he took from Mr. Oum as it pertained to the call from Mr. Mok. Ute Court cautioned the jury; "As you will recall, we went through this when Vyreak Oum testified. And what I told you at that time was that these statements by Mok were admissible only if Mok comes in and appenrs before you and testifies before you.

Otherwise. it's hearsay and they can't come in . And at that time I overruled the objection of defense counsel saying that somebody has to testify first. And we don't bring in thn:e or four witnesses and have them a\1 testify at the same time. And the DA said that Mok wou ld be in, so we're waiting to see. Until then, you can listen to what he says." (I\".T ..

212812013, pg. 88) Mr. Mok did in fact testify and was subj ect to cross examination by Defendant.

"Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we wi ll not TCverse the court's decision on such a question absent a clear abuse of discretion." COl1ltlWllwealtl, II. lvla/olley, 876 A.2d 1002, 1006 (Pa. Super. 2005) "An abuse of discretion is not merely an error in judgment, but

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an 'overridi ng misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the resulL or bias, prejudice, ill-will or par.1iality, as shown by the evidence or the record.'" Commonwealth v. Flamer, 53 A.3d 82, 86 (pa. Super. 2012) citing Commollwealtft v. Cascarfio, 981 A.2d 245, 249 (pa.Super. 2009) OUT Superior Court in Commollllleoltl, v. fo/tIIson, 758 A.2d 166, 173 (pa. Supcr. 2005), held: "The basic requisite ror the admission of any evidence in a case is that it be competent and relevant. lbough relevance has nol been precisely Or universally defined, the l:ourts of this Commonwealth have repeatedly stated that evidence is adm issible if, and only if, the evidence logically or reasonably tcnds to prove or disprove a material fact in issue, tends to make such fact more or less probable, or affords the basis fo r or supports a reasonable inference or presumption regarding the existence of a material fact." (internal citations omillcd) Pa.R.E. at Rule 403 provide that "The court may exclude relevant evidence if its probative value is ouLweighed by a danger of one or more of the following: Wlfair prej udice, confusing the issues, mjsleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. "Evidence is not unfairly prejudicial simply because it is harmful La the defendant's case. Rather, excl usion of evidence on this ground ' is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case ... ' Commonwealth v. Foley, 38 A.3d 882, 891 (Pa. Super. 2012) The testimony of both Me. Own and Detective Park was obvious ly " harmful to Defendant but was not " unfairl y prejudicial" to him. This is particularly so in light of the admission into evidence, without objection, of transcripts of phone conversations of

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Defendant's co·defeodan, recorded while he was incarcerated awaiting lrial. In the first transcript, Defendant tells the party on the other end: "Yeah. The bull , Seagull from Soulh Philly. He came thc first time, but he switched it. He made a different statement, bUll can' t Jet him show Up and shit." (N.T., 2128/2013, pg. 108) The transcript from yet another conversation revealed: Defendant: "Fucking nut ass Seagull made a statement on me, 100." Male: "Yeah? Want me to go and talk to the nigga? Want me to go talk to him?" DefemhlOt: "We already got somebody to talk to him, but that bitch ass nigga came to court last time, but now we're trying to get somebody to talk to him to tell him not to come to court." Male: "Yeah, they' ll do it." (Inaudible.)

Ocfcod:lUt: "Man, in do get out of here. I'mma ruck that nigga up ." (N.T., 2128/2013, pg. 109) II is clear from the transcripts that Defendant was attempting to prevent Mr. Mok from testifying or, at me very least, influence his testimony as well as that orMr. Qum. The testimony of Mr. Qum , which was corroborated by that of Detecti ve Park, is relevant to the identity of the occupants of the Honda and portrays Mr. Mok' s present sense of his observations before anyone had an opportunity lO intimidate him or otherwise innuence his testimony.

n. TESTIMONY OF Dn'EN J)A:'fPS PRIOR BAD ACTS WAS ADMISSABLE.

Defendant in his second complaint states, "The COlli1 erred by aJlowi ng me Commonwealth to elicit testimony from Vyreak: Qum about seeing Defendant with a handgun in a prior, unrelated incident." Defendant's complaint is without merit.

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Pa.R.E. Rule 404 provides in part: (b) Crimes, Wrongs or Otber Acts. (2) ...... 11tis evidence may be admissible for another purpose, such as proving motive, opportunity, inlent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case, this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice. (3) Evidence of other crimes. wrongs, or acts proffered under s ubsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice." In CommnmtJealllr v. il1elelldez·Rodriguez. 856 A.2d 1278, 1283 (Pa. Super. 2004) Ollr Superior Court held: "It is a'Ciomatic that evidence of prior crimes is not admissible for the so le purpose of demonslrating a criminal defendant's propensity to commit crimes. This rule is not without exception, however. Evidence may be admissible in certain eirewnstanecs where it is re lcvant for somc other legitimate purpose and not utilized solely to blacken the dcfendant's character." Evidence that Defendant was seen in possesSion of a gWl prior to the shooting is "admissible, as it tends to prove the means to commit the crime." Commrmweallh v. BrolVn, 538 Pa. 410, 42t , 648 A.2d 1177, 1182 (1994) A weapon shown to have bccn in a defendant's possession may be properly admitted into evidence even tbough it cannot be identified positively as the weapon used in committing a cri me; it may tend to prove that the dcfendant had a weapon si milar to the one used." Commollwealllr v. Lark, 3 16 Pa. Super. 240, 254, 462 A.2d 1329. 1336-37 (1983) There is no "bright-line" I.hreshold determining when the prior acts become too remote in time to be admi ssible pursuant to Rule 404.

Commntlwealtll v. Reed, 990 A.2d 1158, 1168 (Pa. 2010)

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On direct examination Vyreak Own testi fied that he had secn Defendant possess a gun prior to the shooting of Mr. Members but equivocated as to when this occurred.

(N.T., 2128/20 13 , pg. 223) (0 his written statement to Detective Conway he clead)' stated that he had seen Defendant with gun approximately three weeks prior to the shooting.

(N.T., 212812013, pg. 223) Defendant' s possession of a gun within a period of three weeks prior to the shooting is sufficiently close in time to demonstrate his intent, the absence of mistake or accident, and a common scheme or plan.

Ill. TESTIMONY AS TO WITNESS' STATE OF MIND WAS ADMISSABLE.

Defendant ill his fourth compluinl states; "The Court' erred by aJlowing the Commonwealth to elicit testimony from Seagull Mok about Defendant' s brother telling him to nolcome to court." Defendant 's complaint is without merit.

"The term ' hearsay' is defined as an out-of-court statement, which is offered in evidence to prove the truth of the maEtcr asserted . ... Pa.R.E.801(c). Hearsay statements are generally inadmissible unless they fall under an enumerated e.xccption, Pa.R.E. 802.

An out-ot:.court statement is not hearsay when it has a purpose other than La convince the fact finder oftlle truth of the statement." CommoJlwealt" v. BlIsa"et, 54 A,3d 35, 68·69 (Pa, 2012) (internal citations om itted) Prior to presenting testimony of the second day of trial, February 28 , 2013, the Commonwealth requested that the Court issue a beneh warrant to secure the presence of Mr. Mok the following day. Counsel tor the Commonwealth, Mr. McCool, advised the Court thaI, although Mr. Mok had agreed to appear that day he was not present in the

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courtroom. He further adviscd the Court that when he sent police officers to bring him to court, they were advised by his wife that she hadn 't seen him. (N.T" 212812013, pg. 5) When Me. Mok did appear on the third day of lriaJ, March t, 20 13. he testified that he failed to appear the previous day because he W'd S "scared" and that he had been told not to come to court by Defendant's "brother" and "a couple other friend"." (N.T., 212812013, pgs. 6, 7) TIle Commonwealth offered this testimony not for the truth of the matter but for cohis slate of mind, how hc's feeling, what pressure is being placed on him not to be here today." (N.T., 212812013, pg. 6) This testimony was espeCially relevant in light of the evidence of the phone transcripts admitted the previoLts day which specifically mentioned Mr. Mok. On admilting these transcripts , the Court cautioned the jury: "Just a reminder, whilt you just heard is only coming from one defendant. Il's only about the one defendant You can really only use it with regard to the one defendant. Those are not the words of Kinika Oun1, ilIld it wasnrt introduced as evidence against Kinika Qum. Tt's only evidence against Samncang Sin."

Ill. COUNSEL FOR THE COMMONWEALTH'S COMMENT DID NOT WARRANT A MISTRIAL.

Defendant in his fifth complaint states, "The prosecutor committed prosecutorial misconduct Ulat warranted a mistrial when during closing argument he impermissibly conuuented on Defendant's burden of proof and right to remain silent." Defendant's complaint is without merit.

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A defendanfs Motion for a Misuial is provided for in Pennsy lvania Rules of Criminal Procedure (Pa.R.Crim.P.) at Rule 605 (8) which provides: "When an event prej udicial to the defendanl occurs during trial only the defendant may move fo r a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity." "Every unwise or irrelevant remark made in the co urse of the trial by a j udge, a witness, or counsel, does noL compel the grantin g of a new trial. A new tria l is required when the remark is prejudi cial ; that is. when it is of such a nature or substance or delivered in s uch a manner that it may reasonably be sai d to have deprived the defendant of a fa ir and impartial tria!." Commol/weallh v. Goosby, 450 Pa. 609, 301 A.2d 673 ( 1973).

The Superior Court of Pennsylvania bas discussed the issues to be considered in the granting of a mistrial. [n Commonwealth Y. Hudson, 955 A.2d 103 1, 1034 (Pa. Super. 2008), citing Commonwealth v. Tej eda, 834 A.2d 619, 623 (Pa. Super. 2003) our Superior Court held that "A motion for a mistri al is within the discretion of the trial court . [AJ mistrial (upon motion by one of the parties1 is required only when an incident is of such a nature th at its unavoidable effect is to deprive tlle appellant of a fair and impartial trial. II is within the trial court's discretion to determine whether a defendant was prejudiced by the incident that is the bas is of a motio n tor a mistrial. On appeal, our standard of review is whether the trial court abused that discretion. An abuse of discretion is more than a n error of judgment. On appeaJ, the trial court will not be fo und to have abused its discretion tmless the record discloses that the judgment exercised by the trial court was manifestly unreasonable, or the result of partiality, prej udice, bias, or

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ill-will." Hudsoll concluded the "inquiry into whether prejudice has accrued is necessarily a fact specific one." [d., at 1034.

Our Superior Court, in Commoll wealth v. Bracey. 831 A.2d 678, 682 (Pa. Super. 2003). citing Commolllvealtfl I'. S tilley, 455 Pa. Super. 543, 689 A.2d 242. 250 (Pa. Super. 1997), held that "A mistrial is an 'ex lreme remedy ... [that] , ,. must be granted only when an incident is of such a nature that its lUlavoidable effect is to deprive defendant of a f..1ir trial. ' A trial court may remove taint caused by improper testimony through curative instructions. Courts must consider all surrounding circumstances before finding that curative instructions were insufficient and the extreme remedy of a mistrial is required, The circumstances which the cowt must consider include whether the improper remark was intentionally elicited by the Commonwealth, whether the answer was responsive to the question posed, whether the Commonwealth exploited the reference, and whether the curalive instruct jon was appropriate," (Citations omined.)

"Because a criminal trial is an adversary proceeding, the prosecution as well as the defense must be allowed rea.<;;onablc latitude in presenting its case to the jury." Commollwe.alth v. Paddy , 800 A.2d 294, 316 (pa, Super. 2001) A prosecutor is generally allowed to vigorous ly prescnt and argue his case, as long as the comments are supported by evidence and contain inferences which are reasonably derived from that evidence. It is well-settled law mat attorneys' statements or questions at trial are not evidence. The foclls of this Court's consideration of claims regarding prosceutonui misconduct is to detennine whether the defendant was deprived of a fair trial and not whether the defendant was deprived of a perfect trial." Commo" wealth v. Kemp , 753 A.2d 1278, 1282 (Pa. 2000) Our Supreme Court laler explained that " proseculorial

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misconduct docs not occur unless the unavoidable effect of the comments at issue was to prejudice the jurors by fonning in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict." Commonwealtlt v. Cuevas, 832 A,2d 388, 394 (Pa. 2003) Furthermore. the "Commonwealth may 'fairly respond' to closing remarks made by the defense." Commollweal/II v. Brown, 449 Pa Super. 346, 357-58, 673 A.2d 975, 981 (Pa. Super. 1996) Additionally, "comments by a prosecutor, which would otherwise be in error, have been held not to be erroneous if made in response to a defense argument." BrowlI, Td., 673 A.2d at 981 , citing COl1ullo",,,enltlt v. Fielder, 417 Pa. Super. 455 , 612 A2d 1028 (Pa. Super_ 1992) Defendant in his complaint mischaracterizes counsel for the Commonwealth's closing argument. During his closing argument counsel for Defendant stated: "Four wilnesses, half or that is two. 'lbey called two. They called Nasir and Quenzel." (N.T., 3/ 112013, pg. 86) In response to tbis comment in his closing argument, counsel for the Commonwealth stated: "Ladies and gentl emen, I want to just briefly address a couple things that tlll; derense attorney said to you about the witnesses, that 1 only called -- told you ha1f the story ....... you know, it's so funny and it's so disingenuous for lhe defense attorney to get up here and say that, that I gave you half the story as if somehow he's handcuffed. Folks, the burden of proof is on me. It never shifts. It's my burden to prove my case. BUL you know what, folks, it is --it's fairness. It's all aboUl fairness. If 1 don't call witnesses, there's nothing preventing the defense aLtorney from subpoenaing people into the courtroom. If he thinks I'm not telling the whole story or I'm not giving you the whole truth or I'm misrepresenting something or hiding something, he can call witnesses. He could have called them. He could have called lhem_" (N T, 31112013, pgs. 117, liS)

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At thisjum·ture . counsel for Defendant objected. In response, the Court instructed the jury: "THE COURT: You should understand that what the DA is saying and that the law says, is that the defense nevcr has to call any witnesses, never has to produce any evidence. (NT., 31112013, pg. 118)

Counscl for Defendant did not object further to the Court's instruction.

It is dear that in his closing counsel for the Commonwealth never intended for the jul'}' to believe that the burden of proof had somchow shifted to Defendant. In prefacing his remarks he made it clear that "the burden of proof is on me. It never shifts. It's my burden to prove my case." The Court's cW<ltive instruction to the jU!)' was more than sufficient to address any taint which may have been occasioned by counsel 's remarks.

IV. DEFENDANT'S SENTENCE WAS NOT PROPER.

Although Defendant, in his statement of errors, did nol complain the Court erred in sentencing appellant for two inchoate crimes, i.e. attempted murder and conspiracy to commit altempted murder, it may be raised sua sponte, Although this issue may be deemed waived because Defendant did not object, the Court recognizes that a complaint addressing the legality of tl sentence may be raised at any lime, Commonwealth v. Ford, Po. Super. 28 1, 46 1 A.2d 1281 (po. Super. 1983) 18 Pa.C.S.A. § 905 provides in part: "Grading of criminal attempt, solicitation and conspiracy (a) GRADfNG.- Except as otherwise provided in this title, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted Or solicited or is an object of the conspiracy." Furthennore, 18 Pa.C.S.A. § 906 provides: "A per.son may not be convicted of more than one of the inchoate crimes of criminal attempt, eMina!

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solicitation or criminal conspiracy for conduct designed to commit or to culminate in the conunission of the same crime." At the conclusion of his trial, Derendant was found guilty of both attempted murder and conspiracy to comm it murder all arising from the single act of the shooting of Mr. Members which resulted in serious bodily injury. 18 Pa.C.s.A. § 1102 provides in part: "(c) A{tempt~ solicitation and conspiracy.--Notwithstanding section 1103(1) (relating to sentence of imprisorunent for felony), a person who has heen convicted of attempt, solicitation or conspiracy to comm it murder. murder of an unborn child or murder of a law enforcement officer where serious bodily injury results may be sentenced to a term of imprisoruncnt which shall be fixed by the court at not more than 40 years.

Where serious bod ily if\jury does not result, the person may be sentenced to a term of imprisonment which shaH be fixed by the court at not more than 20 years: " Defendant was subsequently senlenced to incarceration in a s tate correctional institution fo r a period of 3 to 8 years on the charge of attempted murder a.. well as a consecutive tenn of eonfmernent of 2 to 5 years on the charge of conspi racy to commit murder, for a totai combined period of incarceration of 5 to 13 years on these two charges, well within tne maximwn allowable on either one of these charges. 10 vie'.'1 of these circwnstances, the Court recommends that this matter be remanded only ror the purpose of resentencing Defendant.

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CONCLUSION The Court finds that its evidentiary rulings are supported on the record. 'lne Court also finds thal Defendant's sentencing on two inchoate offenses is improper and recommends that this matter be remanded for re-sentencing.

BY THE COURT:

Fcbruary7,20l4 ES J. CUNN GIlAM, ill