Com. v. Cyrus, Z.

J. S28010/14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ZAHER CYRUS, : No. 38 EDA 2013
:
Appellant :

Appeal from the Judgment of Sentence, August 1, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003973-2011

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 04, 2014

Zaher Cyrus, appellant, was involved in multiple shootings in the

vicinity of Germantown and Erie Avenues in Philadelphia. At approximately

11:00 p.m. on January 14, 2011, appellant shot and injured Anthony

Gardens Skating Rink. Jason Howard, who was in front of a family

the early morning hours of January 15, 2011, appellant shot and killed Gary

uring the shooting Malik Wells

appellant appeals the judgment of sentence entered on August 1, 2012, in

the Court of Common Pleas of Philadelphia County. We affirm.

* Retired Senior Judge assigned to the Superior Court.
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SKATING RINK

At the time of the shooting, Ronnie Blalock was standing outside of the

skating rink. In a statement Blalock gave to the police, he explained that he

walked across the street and said to a

Appellant immediately pulled out a gun and Redguard pulled out a gun.

(Notes of testimony, 7/27/12 at 126-127.) Blalock ran around the corner,

and Slater went to his car and grabbed his gun. (Id. at 127.) Appellant

s - Id.) Blalock

averred that appellant had a .40 caliber or .9 mm black gun and Slater had a

.9 mm with an extended clip, which was black too. (Id. at 128.) Later that

night, appellant saw Blalock a

skating rink. (Id. at 131.) Blalock was shown photo arrays and identified

Sherod Benson, appellant, and Redguard among others. (Id. at 135-137.)

At trial, Blalock denied giving this statement to the police and denied having

any knowledge of what had occurred. In fact, Blalock denied even being at

the skating rink or even knowing appellant. (Notes of testimony, 7/26/12 at

102.)

At this same time, Lamont Griffin was leaving a party at the skating

rink. When the shots were fired, he got in his car and left without speaking

to the police. On January 18, 2011, Griffin was arrested for possession of

drugs and was questioned about the shooting. On January 19 th, he provided

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a statement to the police.1 Therein, Griffin stated he saw two black males

walking toward Westmoreland Avenue. (Notes of testimony, 7/27/12 at 90-

91.) A third black male exited the passenger side of the van. Griffin then

ran up Hilton Street as the shots were being fired. He heard over ten shots.

(Id. at 92.) Griffin turned around and saw a black male running across the

street shooting a gun. (Id. at 91.) The male was later identified as Slater.

He was also shown a photo array and identified appellant. (Id. at 155.)

Detective John Bartol testified that he conducted a second interview

with Griffin on February 3, 2011, due to contradictions in his first interview

and information he received from other sources. The second statement was

read to the jury. In this statement, Griffin told Detective Bartol that he saw

appellant shooting. He told the detective that he did not say anything earlier

because of what could happen to him if anyone found out he talked to the

police. (Id. at 108-120.)

Officer Raymond Esquilin was one of several officers who responded to

the scene of the shooting. When he arrived, he saw a small crowd

surrounding Redguard, who was lying on the ground and had suffered

multiple gunshot wounds to his torso. Redguard was immediately

transported to the hospital.

1
During the trial, both Griffin and Blalock denied knowing who shot
Redguard.

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Detective Glenn McClain testified that he was assigned to investigate

the shooting outside the skating rink. He recovered 11 fired cartridge

casings from a .9 mm caliber weapon, 8 fired cartridge casings from a

.40 caliber weapon, and 3 projectiles. (Notes of testimony, 7/27/12 at 78-

body, a .380 auto. (Id. at 86.)

Officer Raymond Andrejczak testified that he examined the ballistic

evidence from the shooting outside the skating rink. He received and

examined a total of 21 fired cartridge cases, three bullets, and one bullet

jacket fragment. This included eight fired cartridge cases from a .40 caliber

Smith and Wesson that were fired from the same weapon, ten fired cartridge

cases from a .9 mm Luger that were fired from the same weapon, and two

fired cartridge cases from a .380 caliber automatic that were fired from the

same weapon. (Notes of testimony, 7/30/12 at 119-129.)

Officer Peter Singer testified that he responded to Einstein Hospital for

a report of a shooting. Dixon told the officer that he was leaving a party at

the skating rink and heard gunfire. He jumped into a taxi because of the

shooting and realized he had been shot. The taxi driver took him to the

hospital. However, hospital video surveillance did not show a taxi bringing

in a shooting victim. Dixon suffered gunshot wounds to the right side of his

chest. (Notes of testimony, 7/26/12 at 92-97.)

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EAGLE BAR

Several hours later on January 15, 2011, at approximately 2:00 a.m.,

appellant and his friends were at the Eagle Bar located at Germantown and

Erie Avenues. They posed for multiple photographs for a local photographer,

Korbe

to take photographs of patrons. In each photograph, appellant was wearing

a blue jacket with white sleeves and was holding a silver gun. (Id. at 100-

101.) Several minutes after appellant and his friends had paid for their

photographs, Odd heard multiple gunshots and ducked behind a car.

At trial, Odd testified that he could not see who was shooting the

weapons. However, in an out-of-court statement he identified appellant

from the photographs.2 In the statement, Odd stated he saw a black male,

shooter was wearing a blue and white jacket. Odd testified that he suffered

from schizophrenia and was bipolar. (Notes of testimony, 7/25/11 at

96-140.)

Officers Floiran Pagan and Malisha Camps responded to a radio call

regarding the shooting at the Eagle Bar. When they arrived, they saw

Jones, who appeared to be critically wounded, and Wells, who was wounded.

Both men were transported to the hospital. Dr. Edwin Lieberman opined

2

the record.

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manner of death was a homicide. Jones suffered multiple gunshot wounds

to his chest, and the bullets traveled through his lungs and right forearm.

(Notes of testimony, 7/27/12 at 21.) Wells sustained several gunshot

wounds to the chest and was hospitalized for a week and then released.

Subsequently, the police took a statement from appellant. Appellant

was shown photographs taken by Odd, and he identified himself,

James

each photo, appellant is holding a .380 handgun. In essence, appellant

claimed that he acted in self-defense when he shot and killed the victim.

Appellant explained that he had gone to the Eagle Bar by himself and left

with Crack and Bean. They posed for photographs and were waiting for the

repeated the question back, and the male reached to

his side. Appellant pulled out a gun and fired approximately five or six

told the police that he sold the gun he used in the shooting. (Notes of

testimony, 7/30/12 at 33-59.)

Officer Edward Eric Nelson of the Firearms Identification Unit examined

the ballistics evidence from the Eagle Bar shooting. He examined five fired

cartridge casings from a .9 mm Luger and four fired cartridge casings from a

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.380 caliber automatic. Officer Nelson testified that at least three guns

were fired. (Notes of testimony, 7/30/12 at 84-112.)

Anthony Williams, an employee at the Eagle Bar, was present at the

shooting and heard shots. (Notes of testimony, 7/25/12 at 36.) Williams

testified that he did not see who fired the weapon. (Id. at 39, 44-46.)

However, Williams provided the police with an out-of-court statement where

he described the shooter. (Id. at 60.) In the signed statement, Williams

averred the shooter was in his mid to late 20s, maybe early 30s, and about

Id.). Williams believed that this person fired the weapon two or

three times. (Id.

and also identified Sherod Benson as the shooter. (Id. at 71.) Williams

stated that the weapon was dark-colored. (Id. at 74.) Williams denied

making the out-of-court statement.

Officer Andrejczak also testified that he compared the ballistics

evidence from the Eagle Bar to the ballistics evidence from the skating rink

and determined that the two fired cartridge cases from the .380 caliber

automatic recovered at the skating rink came from the same .380 caliber

automatic weapon fired at the bar. The ballistics evidence also matched

when he compared the eight fired cartridge cases from the .40 caliber Smith

and Wesson. (Notes of testimony, 7/30/12 at 128-129.)

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PROCEDURAL HISTORY

A jury trial commenced in July of 2012, and the verdict was rendered

on August 1, 2012. Appellant was convicted of crimes charged in four

different informations that were consolidated for a jury trial. At

CP-51-CR-00003973-2011, appellant was convicted of the first degree

murder of Jones, two counts of carrying a firearm on public streets, and

possession of an instrument of crime. At CP-51-CR-0004819-2011,

appellant was found guilty of aggravated assault of Dixon and possession of

an instrument of crime.3 At CP-51-CR-0004817-2011, appellant was found

guilty of attempted murder of Anthony Redguard, aggravated assault of

Redguard, and conspiracy. At CP-51-CR-0004814-2011, appellant was

convicted of aggravated assault regarding Howard.4

Post-sentence motions were denied by operation of law on

December 6, 2012, and this timely appeal followed. Herein, appellant

challenges the sufficiency and the weight of the evidence and presents a
5

In his first argument, appellant contends the evidence was insufficient

to support his convictions for murder, attempted murder, and aggravated

3
Appellant was found not guilty of the attempted murder of Dixon.
4
Co-
5
We note that an additional issue contained in his Rule 1925(b) statement
has not been presented by appellant to our court in his brief; hence, we
deem it to have been abandoned.

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assault. (Id. at 8-12.) We note that appellant does not challenge his

firearms convictions nor does he challenge the aggravated assault of Dixon

at CP-51-CR-0004819-2001. With the exception of boilerplate citation to

case law in reference to the elements of the crimes he challenges, appellant

does not support his argument with citation to case law. When briefing the

various issues that have been preserved, it is an appellant's duty to present

arguments that are sufficiently developed for our review. Commonwealth

v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006). The brief must support the

claims with pertinent discussion, with references to the record and with

citations to legal authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). Citations to

authorities must articulate the principles for which they are cited.

Pa.R.A.P. 2119(b).

citation to the record and supporting case law, we will briefly review the

sufficiency claims. Importantly, however, we observe that in his brief,

appellant has confused the victims associated with the bills of informations

he does challenge. For instance, CP-51-CR-0004817-2011 involved the

attempted murder and aggravated assault of Redguard; the argument in

-51-CR-0004817-2011 presents facts

which appear to be associated with the attempted murder of victim Wells,

f at

11.-12.) Additionally, CP-51-CR-0004814-2011 concerned the aggravated

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assault at this number refers to victim Redguard. (See

11-12; notes of testimony, 7/24/11 at 4.) We will address the arguments in

terms of the victims presented rather than the bills of information cited.

Appellant avers that the Commonwealth did not prove that he acted

with malice or a specific intent to kill. (Id. at 9.) According to appellant,

the incident at the Eagle Bar began when he was verbally accosted by the

victim or his associates. (Id. at 11-12.) He then shot the victims out of

fear and the instinct to protect himself. Appellant also avers that with

regard to aggravated assault of Redguard, he shot the victim while

defending himself and claims that he did not act with malice. (Id. at 12.)

He concludes that the Commonwealth presented insufficient evidence to

support any of the convictions. We disagree.

In reviewing a claim challenging the sufficiency of the evidence to

support the verdict, we:

view[] all the evidence admitted at trial in the light most
favorable to the verdict winner, [and determine if] there
is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt.
In applying [the above] test, we may not weigh the
evidence and substitute our judgment for the fact-finder.
In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding a
-finder
unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from
the combined circumstances. The Commonwealth may
sustain its burden of proving every element of the crime

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beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the trier of
fact[,] while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part or none of the evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super. 2003) (citations

omitted).

must prove that a defendant acted with a specific intent to kill, that a human

being was unlawfully killed, that the person accused did the killing, and that

Commonwealth v. Rios, 684 A.2d 1025, 1030

(Pa. 1996), cert denied, 520 U.S. 1231 (1997). This court has held

repeatedly that the use of a deadly weapon on a vital part of a human body

is sufficient to establish the specific intent to kill. Commonwealth v.

Walker, 656 A.2d 90, 95 (Pa. 1995), cert. denied, 516 U.S. 854 (1995).

Additionally, the Commonwealth can prove the specific intent to kill from

circumstantial evidence. Commonwealth v. Brown, 711 A.2d 444 (Pa.

1998).

Section 901 of the Crimes Code defines criminal attempt as follows:

§ 901. Criminal attempt

(a) Definition of attempt.--A person commits an
attempt when, with intent to commit a specific
crime, he does any act which constitutes a
substantial step towards the commission of
that crime.

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18 Pa.C.S.A. § 901(a).

Under the Crimes Code, a person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value
of human life;

....

(4) attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly
weapon[.]

18 Pa.C.S.A. § 2702(a)(1), (4).

We find the evidence sufficient to s

Appellant admitted that he opened fire on the victims at the Eagle Bar,

shooting both victims multiple times. Jones suffered fatal gunshot wounds

in a vital area of his body. This alone is sufficient to establish specific intent

to kill. Walker, supra. Wells was also severely injured after suffering

gunshot wounds. Additionally, testimony was presented that appellant

Despite shooting the victims multiple times, appellant argues the

Commonwealth did not prove he acted with malice because his use of force

was justified. Where there is a claim of self-defense, the Commonwealth

has the burden to prove beyond a reasonable doubt that the killing was not

committed in self-defense. In order to disprove self-defense, the

Commonwealth must prove beyond a reasonable doubt one of the following

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elements: (1) that the defendant did not reasonably believe it was

necessary to kill in order to protect himself against death or serious bodily

harm, or that the defendant used more force than was necessary to save

himself from death, great bodily harm, or the commission of a felony;

(2) that the defendant provoked the use of force; or (3) that the defendant

had a duty to retreat, and that retreat was possible with complete safety.

See 18 Pa.C.S.A. § 505(b)(2); see also Commonwealth v. Hill, 629 A.2d

949, 952 (Pa.Super. 1993). If the Commonwealth establishes any one of

these three elements beyond a reasonable doubt, then the conviction is

insulated from a defense challenge to the sufficiency of the evidence where

self-protection is at issue. See Hill

Commonwealth is required to disprove a claim of self-defense . . . a jury is

not requ

Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990).

Viewing the facts in the light most favorable to the Commonwealth, we

-defense beyond

-serving statement

that he thought the victim was reaching for a gun. However, the jury was

fired multiple shots at the victims or that the victim was the initial

aggressor. T

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relief.

In the alternative, appellant argues that the verdict was not supported

engaged in rampant speculation, conjecture, and surmise.

Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the
weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial

weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the

not against the weight of the evidence and that a
new trial should be granted in the interest of justice.

This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a

wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.

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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in

original) (citations omitted).

Appellant essentially claims that his theory that he acted in

self-

Appellant again claims that the victim was the aggressor. Appellant

essentially asks this court to view the evidence in his favor; such an

argument is not pertinent to the weight of the evidence.

As the trial court explained, the jury heard consistent testimony

e extent of the injuries the victims

suffered. The jury resolved those credibility determinations in favor of the

Commonwealth and convicted appellant. The trial court concluded that the

verdict was not against the weight of the evidence, and we must agree.

Accordingly, we find the trial court did not abuse its discretion in rejecting

The final issue presented is whether the trial court erred when it failed

Specifically, he argues that during its summation, the Commonwealth

improperly referred to the threatening presence of the audience in the

courtroom to the witnesses who testified and that those present in the

of testimony, 7/31/12 Vol. II at 72-74.) Defense counsel also objected to

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in the

photographs taken on the night in question with appellant but he did not

testify. The prosecutor commented on his presence in the courtroom

audience. (Id. at 72-74, 96.)

Comments of the prosecutor in summation will not warrant a new trial

unless it is inevitable that they prejudiced the jury, forming in their minds a

fixed bias and hostility toward the defendant so that they could not weigh

the evidence and render a fair verdict. Commonwealth v. Christy, 656

A.2d 877, 885 (Pa. 1995), cert. denied, 516 U.S. 872 (1995). The decision

to grant a mistrial based upon prosecutorial misconduct lies within the sound

discretion of the trial court and will not be reversed unless there has been a

flagrant abuse of discretion. Commonwealth v. La, 640 A.2d 1336, 1347

(Pa.Super. 1994), appeal denied, 655 A.2d 986 (Pa. 1994).

Instantly, the trial court notes that the comments were entirely

consistent with what transpired in the courtroom. (Trial court opinion,

6/7/13 at 20.) Based on our review of the entire closing arguments, it is

their stories changed. Defense counsel repeatedly referred to the

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the people who were present that did not testify. (Notes of testimony,

7/31/12 Vol. 2 at 7-8.)

Additionally, the trial cour

case based solely on their own recollection of the evidence, cured any

potential prejudice. It is well settled that a jury is presumed to follow the

instructions of the court. Commonwealth v. Natividad, 938 A.2d 310,

326 n.9 (Pa. 2007).

the trial court.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/4/2014

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