J-S46014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAWUD ABDUL-HAKIM
Appellant No. 1485 EDA 2014
Appeal from the Judgment of Sentence November 26, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008191-2011
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 06, 2015
Appellant, Dawud Abdul-Hakim, appeals from the November 26, 2013,
aggregate judgment of sentence of life imprisonment without the possibility
of parole, imposed after a jury found him guilty of murder of the second
degree, conspiracy, and three counts of robbery.1 After careful
consideration, we affirm in part and vacate in part.
The trial court summarized the factual history underlying the instant
offenses as follows.
On October 20, 2010, Appellant[] and an
unidentified male were invited by co-defendant,
Kevin Williams (“Williams”) to smoke weed in his car.
At approximately 11:20 PM, Williams was driving
west on Jackson Street in the City and County of
Philadelphia when Appellant suggested they [r]ob
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1
18 Pa.C.S.A. §§ 2502, 903, and 3701, respectively.
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three (3) men they saw walking north on Second
Street towards Jackson Street. The three (3) men
walking north on Second Street were childhood
friends Jason Moncrief (“Moncrief”), Andrew Lillie
(“Lillie”), and Decedent, Anthony DeMarco Jr.
(“DeMarco”). Appellant had a .40 caliber Glock pistol
on his person. The unidentified male told Williams to
stop the car, said he would be right back, and
instructed Williams to stay there. Appellant and the
unidentified male exited Williams’ car on to the
sidewalk ahead of Moncrief, Lillie, and DeMarco, and
walked slowly so the three (3) men could catch up.
Williams backed his car onto nearby Philip Street
where he could see Moncrief, Lillie, DeMarco,
Appellant, and the unidentified male. Williams kept
his car running in the middle of Philip Street and
turned off his headlights.
As the two (2) groups converged, the
unidentified male grabbed Moncrief and Appellant
grabbed DeMarco; holding DeMarco at gunpoint.
The unidentified male and Appellant directed
Moncrief, Lillie, and DeMarco to give up their money,
whereupon the unidentified male went into the
pockets of Moncrief and retrieved $50. Appellant
again told DeMarco to “Give it up”. DeMarco refused
to comply, and was hit in the back of the neck with
the gun by Appellant. DeMarco then began to fight
Appellant, punching him repeatedly and wrestling
Appellant to the ground. During the fight Appellant
dropped the gun. The unidentified male picked up
the gun, told DeMarco to get off of Appellant, then
fired six (6) shots at DeMarco, hitting him four (4)
times and hitting Appellant once (1) in the left hip.
Lillie and Moncrief subsequently ran south on Second
Street, Williams drove west on Jackson Street, while
Appellant and the unidentified male ran west on
Jackson Street.
DeMarco was shot one (1) time in the left
flank; one (1) time in the left hip; one (1) time in
the mid back, where the bullet fractured a vertebra,
then passed through the thorax, esophagus, heart
and sternum; and one (1) time in the upper left
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back, injuring his left lung. DeMarco was
transported to Thomas Jefferson University Hospital,
where he was pronounced dead at 12:07 AM by Dr.
Jenoff. An autopsy was performed by Assistant
Medical Examiner Dr. Aaron Rosen, who determined
the cause of death was multiple gunshot wounds.
The manner of death was found to be homicide. At
the time of his arrest, Appellant made a detailed
statement after receiving his Miranda[2] warnings.
Trial Court Opinion, 12/1/14, at 2-4.
Following his arrest, Appellant proceeded to a jury trial on October 2,
2012, consolidated with co-defendant Williams, which resulted in a partial
mistrial, as the jury was unable to reach a unanimous verdict in the
homicide, conspiracy, and robbery counts.3 Appellant and Williams were
retried commencing November 20, 2013. At the conclusion of the trial on
November 26, 2013, the jury returned a verdict, finding Appellant guilty of
aforesaid crimes. Appellant was sentenced that same day to an aggregate
sentence of life imprisonment without the possibility of parole. Specifically,
the trial court imposed a mandatory sentence of life imprisonment without
the possibility of parole on the second-degree murder conviction and,
pursuant to 42 Pa.C.S.A. § 9712, a mandatory sentence of five to ten years’
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Appellant was convicted at that trial of firearms not to be possessed
without a license, and possessing an instrument of crime, 18 Pa.C.S.A.
§§ 6106 and 907, respectively, which are not challenged in this appeal.
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incarceration for each of the three robbery counts to run concurrently with
the life sentence, and with no further penalty on the remaining charges.
On December 6, 2013, Appellant filed a post-sentence motion
including, inter alia, a request for a new trial, averring the verdict was
against the weight of the evidence.4 Notice that the motions were denied by
operation of law was sent and docketed by the Clerk of Courts on April 9,
2014. Thereafter, Appellant filed a new timely notice of appeal on May 8,
2014. On May 15, 2014, the trial court permitted Appellant’s trial counsel to
withdraw and appointed new counsel to represent Appellant on appeal.5
On appeal, Appellant raises the following issues for our review.
I. Were the verdicts of guilty as to 2nd degree
murder, three counts of robbery, and conspiracy to
commit robbery against the weight of the evidence
as to the identity of [A]ppellant as one of the
perpetrators?
II. Was the sentence imposed by the trial court of
5 to 10 years in prison for the gun point robbery of
the victim Anthony DeMarco, Jr. concurrent with the
sentence for the second degree murder of Anthony
DeMarco, Jr. of life imprison [sic] without parole
illegal because these offenses merged for the
purpose of sentence?
Appellant’s Brief at 2.
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4
The day before, Appellant filed a pro se notice of appeal from the judgment
of sentence. That appeal was quashed by this Court as interlocutory due to
the pending post-sentence motion before the trial court. Per Curiam Order,
2/24/14, at 1, 3464 EDA 2013.
5
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Appellant first argues the trial court erred in denying his post-sentence
challenge to the weight of the evidence and refusing to grant a new trial.
Id. at 6. We are mindful of the following standard of review we employ
when addressing a challenge to the weight of evidence on appeal.
“A motion for a new trial alleging that the verdict was against the
weight of the evidence is addressed to the discretion of the trial court.”
Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008), cert. denied,
Diggs v. Pennsylvania, 556 U.S. 1106 (2009).
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:
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
court’s determination that the verdict is against the
weight of the evidence.
Commonwealth v. Best, 120 A.3d 329, 345 (Pa. Super. 2015) (citations
omitted; emphasis in original).
In reviewing the entire record to determine the
propriety of a new trial, an appellate court must first
determine whether the trial judge’s reasons and
factual basis can be supported. Unless there are
facts and inferences of record that disclose a
palpable abuse of discretion, the trial judge’s reasons
should prevail. It is not the place of an appellate
court to invade the trial judge’s discretion any more
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than a trial judge may invade the province of a jury,
unless both or either have palpably abused their
function.
To determine whether a trial court’s decision
constituted a palpable abuse of discretion, an
appellate court must “examine the record and assess
the weight of the evidence; not however, as the trial
judge, to determine whether the preponderance of
the evidence opposes the verdict, but rather to
determine whether the court below in so finding
plainly exceeded the limits of judicial discretion and
invaded the exclusive domain of the jury.” Where
the record adequately supports the trial court, the
trial court has acted within the limits of its judicial
discretion.
Commonwealth v. Clay, 64 A.3d 1049, 1056-1057 (Pa. 2013) (emphasis
in original), quoting Commonwealth v. Brown, 648 A.2d 1177, 1190 (Pa.
1994). “[T]he weight of the evidence is exclusively for the finder of fact who
is free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact.” Commonwealth v. Shaffer, 40
A.3d 1250, 1253 (Pa. Super. 2012) (citation omitted). “One of the least
assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.”
Commonwealth v. Brown, 23 A.3d 544, 557-558 (Pa. Super. 2011) (en
banc) (citations and internal quotation marks omitted).
Instantly, Appellant alleges the evidence is contradictory relative to
identifying him as a perpetrator of the robbery leading to the killing of
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DeMarco. Appellant’s Brief at 6-7. Appellant’s argument in its entirety is as
follows.
There were no fingerprints or other physical evidence
that connected the defendant to the crimes. None of
the three eye-witnesses to the incident were able to
identify [Appellant] as one of the perpetrators even
though one of the victims who testified stated that
he knew [Appellant] from the neighborhood. Finally
the alleged confession of [Appellant] is not
corroborated by the eye-witness testimony [] or the
video of the incident because [Appellant] asserts in
his alleged confession that he was wounded in the
incident, that is shot in the hip but neither video or
the eye-witnesses to the incident say or show that
one of the perpetrators were wounded during the
incident. The evidence that [Appellant] was one of
the perpetrators of these crimes is based on mere
conjecture and irreconcilably contradictory evidence.
The defendant is entitled a new trial and this Court
should order one.
Id. We disagree.
The trial court carefully recounted the import of the testimony at trial
as follows.
In the instant case, the Commonwealth
presented evidence through testimony of its
witnesses, to identify the Appellant was the
perpetrator of the crimes of Second[-]Degree Murder
and three (3) counts of Robbery. Appellant and the
unidentified male intentionally put DeMarco, Lillie,
and Moncrief in fear of serious bodily injury while
trying to commit a theft, and that theft resulted in []
DeMarco[]’s death. In a statement to police,
Appellant said he “grabbed DeMarco and pulled out
[his] gun” as the three (3) men passed. Appellant
put the gun to DeMarco’s chest and said, “Just give it
up.” Additionally, Appellant was informed that he
was being questioned in connection with the death of
Anthony DeMarco and Appellant stated that he knew
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DeMarco since he was 12 years old from playing
basketball with DeMarco in the neighborhood. After
establishing that he knew DeMarco, Appellant
described how he was involved in the [r]obbery that
lead to DeMarco’s death.
At trial, [] Lillie [] corroborated Appellant’s
statement to police when Lillie testified that
Appellant grabbed DeMarco at the same time the
unidentified male grabbed Moncrief. Lillie further
testified that both Appellant and the unidentified
male demanded money from the three (3) men while
Appellant held DeMarco at gunpoint. [] Moncrief []
testified that the unidentified male took $50 from
Moncrief’s pockets. Appellant, Lillie and Moncrief
saw the unidentified male shoot DeMarco repeatedly,
causing DeMarco serious bodily injury that ultimately
resulted in DeMarco’s death.
Trial Court Opinion, 12/1/14, at 5-6 (citations omitted). The trial court
determined the jury’s verdict did not shock the conscience of the trial court.
Id. at 10.
Upon a thorough review of the record, we conclude the trial court’s
determinations are well supported and Appellant’s assertions are baseless.
The evidence is not contradictory. While Lillie and Moncrief were unable to
identify Appellant because their attackers were wearing hoods drawn up
around their faces, their testimony of the events closely tracked and
corroborated the version of events related by Appellant in his statement to
the police, wherein he fully described his involvement in the robbery. N.T.,
11/21/13, at 40-63; at N.T, 11/22/13, at 3-35. Both victims testified they
ran when the shooting commenced. N.T., 11/21/13, at 52; N.T, 11/22/13,
at 13. Consequently, their failure to notice Appellant had been wounded is
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not a contradiction as asserted by Appellant. The jury in this case was free
to credit Appellant’s confession together with the corroborating evidence
from the victims to identify Appellant as a perpetrator of the robbery,
conspiracy and homicide. See Shaffer, supra. We discern no abuse of
discretion by the trial court in determining the verdict was not contrary to
the weight of the evidence and in refusing to grant Appellant a new trial.
Appellant next argues the trial court erred in failing to merge, for the
purposes of sentencing, one of the robbery counts with the second-degree
murder count. Appellant’s Brief at 7. Additionally, we raise sua sponte the
legality of the imposition of the mandatory sentences under 42 Pa.C.S.A.
§ 9712. “A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa. Super. 2012) (citation omitted), appeal
denied, 70 A.3d 810 (2013). Additionally, sentencing issues “premised upon
Alleyne[6] … implicate[] the legality of the sentence and cannot be waived
on appeal.” Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super.
2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). “An illegal
sentence must be vacated. In evaluating a trial court’s application of a
statute, our standard of review is plenary and is limited to determining
whether the trial court committed an error of law.” Commonwealth v.
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6
Alleyne v. United States, 133 S. Ct. 2151 (2013).
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Poland, 26 A.3d 518, 523 (Pa. Super. 2011) (citation omitted), appeal
denied, 37 A.3d 1195 (Pa. 2012).
Our legislature has defined the circumstances under which convictions
for separate crimes may merge for the purpose of sentencing.
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and
all of the statutory elements of one offense are
included in the statutory elements of the other
offense. Where crimes merge for sentencing
purposes, the court may sentence the defendant
only on the higher graded offense.
42 Pa.C.S.A. § 9765.
Our Supreme Court determined that
the plain language of Section 9765 reveals a
legislative intent “to preclude the courts of this
Commonwealth from merging sentences for two
offenses that are based on a single criminal act
unless all of the statutory elements of one of the
offenses are included in the statutory elements of
the other.” … [Our Supreme Court] held that when
each offense contains an element the other does not,
merger is inappropriate.
Quintua, supra at 401, quoting Commonwealth v. Baldwin, 985 A.2d
830, 837 (Pa. 2009).
To determine whether offenses are greater and
lesser-included offenses, we compare the elements
of the offenses. If the elements of the lesser offense
are all included within the elements of the greater
offense and the greater offense has at least one
additional element, which is different, then the
sentences merge. If both crimes require proof of at
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least one element that the other does not, then the
sentences do not merge.
Commonwealth v. Johnson, 874 A.2d 66, 70-71 (Pa. Super. 2005)
(citations omitted), appeal denied, 899 A.2d 1122 (Pa. 2006).
Instantly, the trial court and the Commonwealth concede that the
robbery count pertaining to the robbery of DeMarco should have merged for
sentencing with the second-degree murder count, because it arose from the
same event and all the elements of the robbery offense are included in the
second-degree murder offense. Trial Court Opinion, 12/1/14, at 11;
Commonwealth’s Brief at 10. We agree, and accordingly we must vacate the
concurrent five to ten year sentence attributable to the charge based on the
robbery of DeMarco. See Poland, super.
With respect to the remaining robbery counts, the trial court imposed
the mandatory sentence on each robbery charge pursuant to 42 Pa.C.S.A.
§ 9712.7 This sentencing provision has recently been held to be
unconstitutional in its entirety as violative of the ruling in Alleyene, in that
facts that increase mandatory minimum sentences must be submitted to the
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7
Section 9712 provides for the imposition of a five-year mandatory
minimum sentence of incarceration for any person convicted of a crime of
violence, which includes robbery under 18 Pa.C.S.A. § 3502(a)(1), if it is
shown by a preponderance of the evidence at sentencing that “the person
visibly possessed a firearm or a replica of a firearm, whether or not the
firearm or replica was loaded or functional, that placed the victim in
reasonable fear of death or serious bodily injury, during the commission of
the offense.” 42 Pa.C.S.A. § 9712.
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finder of fact and must be found beyond a reasonable doubt.
Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014).
In Valentine, this Court determined that the mandatory minimum
sentences imposed pursuant to Sections 9712 and 9713 were
unconstitutional even if the facts that trigger the mandatory minimum
sentence are submitted to the fact-finder and found beyond a reasonable
doubt, instead of by the trial court by a preponderance of evidence at
sentencing. Id. at 811-812. We are therefore constrained to vacate the
sentences for the remaining two robbery convictions in this case as well.
As noted by the Commonwealth and the trial court, our vacating this
portion of the sentence does not disrupt the overall sentencing scheme, of
life imprisonment without possibility of parole.8 Consequently, we do not
vacate the remainder of the sentence and need not remand the case. “If our
disposition upsets the overall sentencing scheme of the trial court, we must
remand so that the court can restructure its sentence plan. By contrast, if
our decision does not alter the overall scheme, there is no need for a
remand.” Commonwealth v. Thur, 906 A.2d 552, 569-570 (Pa. Super.
2006), appeal denied, 949 A.2d 687 (Pa. 2008).
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8
We note that the trial court initially sentenced Appellant only on the
second-degree murder count with no additional penalty on any of the other
charges including the three robbery counts. N.T., 11/26/14, at 31. The
concurrent robbery sentences were added only after the Assistant District
Attorney reminded the trial court that it lacked discretion not to impose the
mandatory sentence under Section 9712, but suggested they run
concurrently with the life sentence. Id. at 33.
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Based on the foregoing, we conclude the trial court did not abuse its
discretion in refusing to grant Appellant a new trial based on the verdict
being against the weight of the evidence. We are nevertheless constrained
to vacate the illegal portions of the trial court’s sentence pertaining to the
three robbery counts. Inasmuch as our vacating the illegal portions of the
sentence does not disrupt the trial court’s overall sentencing scheme, we
need not disturb the balance of the sentence or remand this case.
Judgment of sentence affirmed in part and vacated in part.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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