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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SIM AMIN MORTON,
Appellant No. 561 EDA 2013
Appeal from the Judgment of Sentence October 2, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002070-2012
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 28, 2014
Sim Amin Morton appeals from the judgment of sentence of thirteen to
twenty-six years incarceration to be followed by four years of probation
imposed by the trial court. A jury found him guilty of attempted murder,
aggravated assault, firearms not to be carried without a license, carrying a
firearm in public in Philadelphia, possession of an instrument of crime, and
persons not to possess a firearm.1 After careful review, we affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
The jury did not determine the person not to possess a firearm charge
until after it returned its verdicts on the remaining charges. Following those
guilty verdicts, the jury was instructed that Appellant had a disqualifying
offense and was instructed on the elements of the relevant crime before
finding Appellant guilty. The jury also acquitted Appellant of a charge of
aggravated assault relative to the girlfriend of the victim herein.
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Shortly before midnight on September 28, 2011, police received a
report of shots fired on the 1000 block of North Edgewood Street,
Philadelphia. They ultimately recovered eight fired cartridge casings from a
.40 caliber weapon. When police arrived on the scene, they observed that a
window to a store had been shattered, and across the street a passenger-
side window to a vehicle had been shot out. A man, Evan Davis, approached
police from the area of the vehicle and indicated that he had been shot. The
victim was transported to the Hospital of University of Pennsylvania along
with his girlfriend, Shynetta Benyard, who was uninjured. While police were
transporting Mr. Davis to the hospital, he instructed Ms. Benyard to cease
describing the shooter to police. Mr. Davis also, while at the hospital,
initially described his assailant as a slim black male, between six feet and six
feet two inches in height, who was wearing black pants with a red stripe
down the legs and black and red shoes. Later when speaking with police,
Mr. Davis refused to provide the race of the individual who shot him or to
identify Appellant.
Edgewood Street at the time of the shooting. She indicated that earlier in
the evening
prior girlfriend, while her son and his girlfriend were congregating with a
group of other individuals. Appellant was involved in the dispute. After the
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argument ended, Mr. Davis and Ms. Benyard went over to her vehicle when
shots rang out.2
Ms. Kearns indicated to police at approximately 2:00 a.m., two hours
after the shooting, that Appellant had shot her son. She knew Appellant
from the neighborhood and initialed the statement that she made to police
around 2:45 a.m., wherein she stated that Appellant had come around the
corner and started shooting. At trial, however, she claimed that she had
been drinking excessively on the night of the incident, and testified that she
could not identify Appellant as the shooter. The officer who interviewed the
spoke with her.
the altercation with Ms. Benyard, also provided police with a statement
shortly after the shooting. She identified Appellant as the shooter and
Michael Buckeholder, before the shooting. In addition, she informed police
that Appellant and the victim had issues for a long period and that another
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2
Ms. Benyard was not the registered owner of the car, a 1995 Nissan
Maxima, but was in possession of the vehicle.
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testified that she did not actually see the shooting because she was inside
her home.
Another woman, Latoya Jenkins, the girlfriend of Michael Buckeholder,
identified Appellant as the shooter shortly after the incident, though she
claimed at trial that she was too intoxicated to see who fired the shots.
Appellant acknowledged at trial having words first with Ms. Jenkins and then
her boyfriend before the shooting. However, he claimed that he was with
his girlfriend at his apartment at the time of the shooting and waiting on
another woman to stop at his home to purchase marijuana.
At trial, the Commonwealth also introduced taped conversations
between Appellant and another woman, while he was incarcerated, in which
he asked her to dispose of a pair of shoes and marijuana. These
conversations also revealed Appellant attempting to secure alibi witnesses
and that he wanted to contact the eyewitnesses. The jury returned the
aforementioned guilty verdicts and the court sentenced Appellant. Appellant
filed a timely post-sentence motion, which the court denied. This timely
appeal ensued. The trial court directed Appellant to file and serve a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant complied, and the trial court authored its Rule 1925(a) opinion.
The matter is now ready for our review. Appellant presents two issues on
appeal.
1. Is the evidence insufficient to prove that Appellant was the
perpetrator of the crimes?
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2. Did the trial court err in permitting the Commonwealth to ask
the defendant questions regarding his arrest for selling
narcotics on the 100 block of N. Edgewood Street?
We review the sufficiency of the evidence by considering the entire
record and all of the evidence admitted at trial. Commonwealth v.
Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We view such
evidence in a light most favorable to the Commonwealth as the verdict
winner, drawing all reasonable inferences from the evidence in favor of the
Commonwealth. Id. When evidence exists to allow the fact-finder to
determine beyond a reasonable doubt each element of the crimes charged,
the sufficiency claim will fail. Id. need not preclude every
possibility of innocence and the fact-finder is free to believe all, part, or none
Id. In addition, the Commonwealth can prove
the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be drawn
from t
-weigh the evidence and substitute our
judgment for that of the fact- Id.
In the present case, the Commonwealth provided evidence from
eyewitnesses to the shooting who identified Appellant as the shooter.
Although these witnesses declined to identify Appellant at trial, their prior
signed statements are sufficient to establish each element of attempted
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murder and aggravated assault. The jury was free to reject the
statements. To the extent Appellant fails to develop any argument on the
remaining convictions as to which elements of the crime the Commonwealth
failed to establish,
claim is without merit.
Commonwealth to introduce evidence that Appellant was previously
convicted of possession with intent
incident that transpired on Edgewood Street. While we agree that the trial
court erred in admitting this evidence, we conclude that the error was
harmless. Prior crimen falsi convictions are admissible into evidence,
however, PWID is not a crimen falsi crime. Further, evidence of prior bad
Commonwealth v. Brown, 52 A.3d 320, 325 (Pa.Super. 2012); Pa.R.E.
404(b)(2). As we noted in Brown - Brown,
supra at 325. For example, evidence of a bad act may be admissible to
have a criminal history, or where the defendant uses his prior history to
intimidate or threaten a victim, or the bad act is part of the res
gestae/natural history of the case. Id. at 326. Of course, the probative
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value of the bad acts evidence must outweigh its prejudicial impact. Id.;
Pa.R.E. 403.
The Commonwealth argued at trial that because Appellant testified
that he took care of his grandmother and other elderly people on the block
in question, and admitted to selling marijuana, he opened the door to
introduction of his PWID conviction. It added that since Appellant testified
that he made money by planning parties, it should be permitted to impeach
that testimony with evidence that he earned a living as a drug dealer. We
disagree.3 Indeed, none of the common law exceptions to the rule against
bad acts or the list included in the relevant rule of evidence applies to this
the door to introduction of the commission of a crime in the same
theory was related to a differing neighborhood dispute.
Additionally, the PWID conviction could not establish identity, intent,
preparation, plan, knowledge or absence of mistake where the defendant
was charged with a wholly unrelated shooting incident unrelated to a drug
crime. In this respect as well, the res gestae exception has no applicability.
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3
We note that the Commonwealth failed to timely file a brief in this matter.
We do not consider its patently untimely brief. Accordingly, the
Commonwealth has not provided a single case that is remotely analogous
which would authorize the introduction of the evidence in question.
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There also was no suggestion that Appellant used his PWID conviction to
below is not persuasive. Nonetheless, we hold for the following reasons that
the error was harmless.
Our Supreme Court explained in Commonwealth v. Allshouse, 36
A.3d 163, 182 (Pa. 2012), that a court is permitted to affirm a judgment
based on harmless error even if the parties do not raise that argument. Id.
Harmless error exists if there is no reasonable possibility that the error could
have contributed to the verdict. Commonwealth v. Green, 76 A.3d 575,
583 (Pa.Super. 2013). In this respect, an error is harmless if it
did not prejudice the defendant or the prejudice was de minimis;
or (2) the erroneously admitted evidence was merely cumulative
of other untainted evidence which was substantially similar to
the erroneously admitted evidence; or (3) the properly admitted
and uncontradicted evidence of guilt was so overwhelming and
the prejudicial effect of the error so insignificant by comparison
that the error could not have contributed to the verdict.
Id.
Appellant himself acknowledged as part of his testimony regarding an
alibi that he sold marijuana. In addition, the jury was aware that Appellant
sold marijuana because he was recorded while in jail telling a person to get
rid of marijuana joints. Thus, the jury was already aware that Appellant sold
drugs, although not cocaine. The Commonwealth also introduced evidence
that Appellant, while incarcerated, solicited a person to dispose of a pair of
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shoes that he owned which matched the description given by the victim.
Although several eyewitness testified at trial that they were too intoxicated
to identify Appellant, each witness, all of whom knew Appellant, had
informed police shortly after the shooting that he was the culprit. Moreover,
five-day trial. Accordingly, we find the prejudice resulting from the
de minimis.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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