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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KHALIL G. WALKER SHABAZZ, : No. 868 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, February 12, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0008582-2013
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2017
Khalil G. Walker Shabazz appeals1 from the February 12, 2016
aggregate judgment of sentence of 23½ to 47 years’ imprisonment, followed
by 10 years’ probation, imposed after he was found guilty in a waiver trial of
third-degree murder, possessing an instrument of crime (“PIC”), carrying a
firearm without a license, and carrying a firearm on public streets or public
property in Philadelphia.2 After careful review, we affirm.
1 Appellant purports to appeal from the February 25, 2016 order denying his
post-sentence motions. In a criminal action, an appeal properly lies from
the judgment of sentence made final by the denial of post-sentence motions.
See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa.Super.
2007) (noting that an appeal from an order denying post-sentence motions
is procedurally improper because a direct appeal in a criminal proceeding lies
from judgment of sentence).
2 18 Pa.C.S.A. §§ 2502, 907, 6106, and 6108, respectively.
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The trial court summarized the relevant facts of this case as follows:
Jerry Edwards, [appellant], and several friends
were out at Fat Pete’s Bar in Philadelphia on the
night of October 2, 2012. Edwards had arrived in his
mother’s Dodge Stratus. [Appellant] had
Naseem Abdullah’s Ford Crown Victoria. A little after
midnight, Edwards left the bar driving the Crown Vic,
leaving the keys to his mom’s Dodge Stratus with
[appellant]. Edwards got into an accident at Bridge
and Pratt Streets, totaling the Ford. Edwards called
one of his friends at the bar, Jawara Jones, and
asked him to come to the accident scene and drive
his female passengers home. Jones complied and
then drove Edwards to Markeya Burton’s residence in
the Frankford section of Philadelphia. Edwards gave
Jones the keys and title to the smashed up
automobile which had been in the Ford’s glove
compartment.
Jones returned to the bar to pick up
[appellant], telling him the tale concocted by
Edwards that the Crown Vic had been confiscated by
the police and giving [appellant] the title and keys to
the Ford. [Appellant] became irate, not believing the
fabricated story. [Appellant] and Jones argued in
front of [appellant’s] house, after which [appellant]
took the keys to the Dodge Stratus and went inside
his house. Jones walked home.
Around 4:00 a.m., Edwards left Burton’s
residence stating that he was going to get the Crown
Victoria. He was picked up by [appellant] and
[appellant’s] brother, Sameer, and they drove
around looking for the purportedly confiscated Ford.
Sameer became suspicious after a short time and
asked Edwards, who was driving at the time, to pull
over. At that point, [Edwards] stopped the car and
Sameer got out. After a verbal exchange,
[appellant] pulled out a .40 caliber handgun and
fired three shots at Edwards, killing him.
[Appellant] and his brother Sameer arrived at
Abdullah’s house early that morning. [Appellant]
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admitted that he had met up with Edwards earlier,
gotten into an argument, and shot him three times.
Sameer confessed he had been in the car with
Edwards and his brother, but had exited the vehicle
and started walking up the block when his brother
shot Jerry Edwards. Edwards’ body was found in his
mother’s Dodge Stratus in the alley behind
7519 Brous Street in Philadelphia.
A resident of the area, Sean McCloskey,
testified that he was getting dressed for work when
he heard several gunshots, looked out his window
and observed [appellant] jogging with one hand in
his pocket. McCloskey had never seen [appellant]
running in that area before. The title to the Ford
Crown Victoria was found on a Nesper Street lawn,
where McCloskey had seen [appellant] jogging.
Additionally, both Jones and Abdullah testified that
they knew [appellant] had a .40 caliber handgun,
having purchased it a couple of months previous to
this incident.
Trial court opinion, 8/4/16 at 2-4 (citations to notes of testimony omitted).
On April 19, 2013, appellant was arrested in connection with this
incident and charged with third-degree murder and related offenses. On
February 18, 2015, appellant filed a pre-trial motion for discovery of the
personal and disciplinary files of former Philadelphia Homicide Detective
Ronald Dove.3 Following a hearing, the trial court denied appellant’s motion
3 The record reflects that Detective Dove was terminated from the
Philadelphia Police Department after he was arrested for helping his
girlfriend flee the city after she murdered her ex-boyfriend and trying to
influence homicide detectives in their investigation of that murder.
Detective Dove’s connection to the instant matter was that he was involved
in the preparation and execution of two search warrants and was present
when two witnesses gave statements to other detectives. (See “Motion to
Produce and Disclose Records,” 2/18/15 at ¶¶ 2-4; certified record at no. 9;
see also notes of testimony, 3/4/15 at 5, 8-9.)
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on March 4, 2015. On November 9, 2015, appellant waived his right to a
jury and proceeded to a bench trial the following day. On November 16,
2015, the trial court found appellant guilty of third-degree murder, PIC,
carrying a firearm without a license, and carrying a firearm on public streets
or public property in Philadelphia. As noted, appellant was sentenced to an
aggregate term of 23½ to 47 years’ imprisonment, followed by 10 years’
probation, on February 12, 2016. On February 22, 2016, appellant filed
post-sentence motions challenging the weight of the evidence and for
reconsideration of his sentence. The trial court denied appellant’s
post-sentence motions on February 25, 2016. This timely appeal followed
on March 8, 2016.4
Appellant raises the following issues for our review:
1. Did the trial court err when it denied
[appellant’s] request for Detective Dove’s
personnel and internal affairs files where it was
undisputed that the detective had been caught
falsely manipulating evidence in prior homicide
cases?
2. Did the sentencing court impose an aggregated
sentence that was contrary to the fundamental
norms underlying the sentencing process
because it did not take into account
[appellant’s] potential and need for
rehabilitation?
4 On March 10, 2016, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days. On April 13, 2016, the trial court granted
appellant’s request for an extension of time to file his Rule 1925(b)
statement. On May 11, 2016, appellant filed a timely Rule 1925(b)
statement. The trial court filed its Rule 1925(a) opinion on August 4, 2016.
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3. Was [appellant’s] sentence for carrying a
firearm without a license manifestly excessive
because it exceeded the sentencing guidelines
without any reasons articulated in support of
exceeding the guidelines?
Appellant’s brief at 4.
Appellant first argues that the trial court abused its discretion in
denying his pre-trial discovery motion for the personal and disciplinary files
of Detective Dove. (Id. at 10.) In support of this contention, appellant
avers that “information relative to Detective Dove’s dishonesty in other
homicide investigations would have been materially exculpatory information
that would have been appropriate impeachment material.” (Id.) For the
following reasons, we disagree.
Generally, our standard of review of a trial court’s denial of a pre-trial
discovery motion is whether the trial court abused its discretion.
Commonwealth v. Garcia, 72 A.3d 681, 684 (Pa.Super. 2013). “An abuse
of discretion is not merely an error of judgment, but is rather the overriding
or misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown
by the evidence of record.” Commonwealth v. Mendez, 74 A.3d 256, 260
(Pa.Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014).
Pretrial discovery and inspection is governed by Pennsylvania Rule of
Criminal Procedure 573, which provides, in relevant part, as follows:
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(B) Disclosure by the Commonwealth.
....
(2) Discretionary With the Court.
(a) In all court cases, except as otherwise
provided in Rules 230 (Disclosure of
Testimony Before Investigating Grand
Jury) and 556.10 (Secrecy; Disclosure),
if the defendant files a motion for
pretrial discovery, the court may order
the Commonwealth to allow the
defendant’s attorney to inspect and
copy or photograph any of the following
requested items, upon a showing that
they are material to the preparation of
the defense, and that the request is
reasonable:
(i) the names and addresses of
eyewitnesses;
(ii) all written or recorded
statements, and substantially
verbatim oral statements, of
eyewitnesses the Commonwealth
intends to call at trial;
(iii) all written and recorded
statements, and substantially
verbatim oral statements, made
by co-defendants, and by
co-conspirators or accomplices,
whether such individuals have
been charged or not; and
(iv) any other evidence specifically
identified by the defendant,
provided the defendant can
additionally establish that its
disclosure would be in the
interests of justice.
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Pa.R.Crim.P. 573(B)(2)(a). Under Rule 573(B)(2)(a), appellant has “the
burden of proving (1) his request for the [documents at issue] was material
to the preparation of his defense, (2) the request was reasonable, and
(3) the information disclosed by the request would be in the interests of
justice.” Garcia, 72 A.3d at 684.
Here, the trial court found that the discovery of the personnel and
disciplinary files of Detective Dove was not warranted under Rule 573(B)
because appellant failed to demonstrate “a specific articulable ...
reasonable basis” for his discovery request. (Notes of testimony, 3/4/15 at
13.) In reaching this decision, the trial court reasoned as follows:
[A] mere general request because [Detective Dove]
is indicted and in trouble, screwed up another
investigation, is not enough.
Unless you can tie it into the two statements or
two search and seizure affidavits, I don’t think you
are entitled to it unless you can show there is some
inclination to show there is some falsehood or
something that will go on relevant to this case, not
just in general an allegation that he screwed up
other cases.
Id. at 7.
Upon review, we agree with the trial court that appellant failed to
satisfy his burden under Rule 573(B)(2)(a), and thus, the denial of his
discovery motion was entirely warranted. This court has repeatedly
recognized that in order to prove “the requested information is material and
reasonable, a defendant must show a reasonable probability that the
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information gained from the discovery would lead to evidence that would
exonerate him. More than a mere assertion that the information
disclosed might be helpful is necessary.” Garcia, 72 A.3d at 684
(internal citations omitted; emphasis added); see also Commonwealth v.
Belenky, 777 A.2d 483, 488 (Pa.Super. 2001).
Instantly, our review of the record reveals that appellant failed to
establish that his discovery request was either material to the preparation of
his defense or a reasonable request. See Pa.R.Crim.P. 573(B)(2)(a)(iv). It
necessarily follows as well that such disclosure would not be in the interests
of justice. See id. As noted, Detective Dove’s only connection to this case
was that he was involved in the preparation and execution of two search
warrants and was present when two witnesses gave statements to other
detectives. (See notes of testimony, 3/4/15 at 5, 8-9.) Appellant’s counsel
conceded at the March 4, 2015 hearing that the two warrants
Detective Dove executed in this case did not lead to the discovery of
“anything of value.” (Id. at 5.) Additionally, appellant presented no
evidence that Detective Dove acted improperly with respect to the case
sub judice, and the only conceivable purpose in presenting
Detective Dove’s alleged “prior malfeasance” in an unrelated matter would
be to impeach his credibility. (See appellant’s brief at 10.) The record,
however, reveals that appellant was aware that the Commonwealth did not
intend to call Dove as a witness, and Dove did not testify at trial. (Notes of
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testimony, 3/4/15 at 6.) Thus, Dove’s credibility was not at issue. Given
Detective Dove’s limited involvement in this case, as well as the absence of
any significant connection between his girlfriend’s case and the instant
matter, we find that there was no reasonable basis to permit appellant to
review Dove’s personnel and disciplinary files. Accordingly, appellant’s first
claim fails.5
We now turn to appellant’s challenges to the discretionary aspects of
his sentence. Specifically, appellant argues that the trial court abused its
discretion by sentencing him “without considering [his] rehabilitative needs.”
(Appellant’s brief at 13.) Appellant further contends that the trial court
5 In reaching this conclusion, we note that appellant’s reliance on
Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa.Super. 1999), is
misplaced. Mejia-Arias stands for the proposition that a defendant is only
entitled to review relevant material in a police officer’s personnel file where
there exists at least some reason to believe the inspection would lead to
evidence helpful to the defense. Id. at 874-875. As recognized by the trial
court,
In that case, the District Attorney had
nol prossed 53 cases in which the [sic] one of the
officers was an essential witness and 60 cases
involving the other agent, based on information that
these agents had lied in search warrant applications.
As these officers were the applicants on search
warrants in Mejia-Arias, there was a significant,
articulable, reasonable basis for allowing the
defendant to review the agent’s personnel files. No
such basis has been provided in the present case.
There has been no connection between this case and
Dove’s girlfriend’s case.
Trial court opinion, 8/4/16 at 7-8.
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failed to state sufficient reasons on the record for deviating from the
sentencing guidelines with respect to the carrying a firearm without a license
charge.”6 (Id. at 15.) We disagree.
Our standard of review in assessing whether a trial court has erred in
fashioning a sentence is well settled.
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather,
[a]ppellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation
omitted), appeal denied, 117 A.3d 297 (Pa. 2015).
Where an appellant challenges the discretionary aspects of his
sentence, as is the case here, the right to appellate review is not absolute.
See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).
Rather, an appellant challenging the discretionary aspects of his sentence
must invoke this court’s jurisdiction by satisfying the following four-part
test:
6 Under the sentencing guidelines, the standard range for the offense of
carrying a firearm without a license was 12 to 24 months’ imprisonment,
plus or minus 12 months. The trial court sentenced appellant to 42 to
84 months’ imprisonment, which was outside the aggravated range of the
guidelines.
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(1) whether the appeal is timely; (2) whether
appellant preserved his issue; (3) whether
appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
substantial question that the sentence is appropriate
under the sentencing code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Here, the record reveals that appellant filed a timely notice of appeal
on March 8, 2016, and preserved his discretionary aspects of sentencing
claim in a February 22, 2016 post-sentence motion. Appellant also included
a statement in his brief that comports with the requirements of
Pa.R.A.P. 2119(f). (See appellant’s brief at 8-9.) Accordingly, we must
determine whether appellant has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(citation omitted). “A substantial question exists only when appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),
appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).
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In his Rule 2119(f) statement, appellant contends that the trial court
deviated from the sentencing guidelines and “his potential for rehabilitation
should have been acknowledged by the [trial] court and factored into his
aggregate sentence. (Appellant’s brief at 8.) Appellant further avers that
the trial court failed “to offer any justification for its departure from the
sentencing guidelines for the conviction of carrying a firearm without a
license.” (Id. at 9.) This court has long recognized that a claim “that the
sentencing court disregarded rehabilitation and the nature and
circumstances of the offense in handing down its sentence presents a
substantial question for our review.” Commonwealth v. Dodge, 77 A.3d
1263, 1273 (Pa.Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).
Likewise, “a claim the trial court failed to state its reasons for deviating from
the guidelines presents a substantial question for review.” Commonwealth
v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009) (citation omitted).
Accordingly, we proceed to consider the merits of appellant’s discretionary
sentencing claims.
Herein, the record reveals that the trial court considered and weighed
numerous factors in fashioning appellant’s sentence, including his
rehabilitative needs. At the February 12, 2016 sentencing hearing, the trial
court stated that it read “well over a hundred letters of recommendation”
and heard testimony from multiple witnesses who testified on appellant’s
behalf. (Notes of testimony, 2/12/16 at 3, 8-17.) Appellant also briefly
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testified at the sentencing hearing on his desire “to move forward in [his]
life” and “be something in life.” (Id. at 30-31.) Although the record reflects
that the trial court did not specifically state at the sentencing hearing that it
considered appellant’s rehabilitation, the trial court was in possession of a
presentence investigation (“PSI”) report and indicated that it considered it in
determining appellant’s sentence. (Id. at 3; see also trial court opinion,
8/4/16 at 10.) Where the trial court has the benefit of a PSI report, as is
the case here, “we shall . . . presume that the sentencing judge was aware
of relevant information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.”
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014)
(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).
Contrary to appellant’s contention, the record further reflects that the
trial court placed its reasons on the record for its departure from the
sentencing guidelines. (See notes of testimony, 2/12/16 at 31.) It is well
settled that a sentencing court “may deviate from the guidelines, if
necessary, to fashion a sentence which takes into account the protection of
the public, the rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact on the life of the victim and the
community[.]” Commonwealth v. Kitchen, 162 A.3d 1140, 1147
(Pa.Super. 2017) (citation omitted). However, “[i]n every case where a
sentencing court imposes a sentence outside of the sentencing guidelines,
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the court must provide in open court a contemporaneous statement of
reasons in support of its sentence.” Commonwealth v. Shull, 148 A.3d
820, 835-836 (Pa.Super. 2016) (citations omitted). In reviewing the record,
the appellate court considers:
(1) the nature of the circumstances of the offense
and the history and characteristics of the
defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any
pre-sentence investigation.
(3) The findings upon which the sentence was
based.
(4) The guidelines promulgated by the
commission.
42 Pa.C.S.A. § 9781(d).
Instantly, the record reveals that the trial court was cognizant of both
the sentencing guidelines and the sentence it was imposing. In addition to
reviewing the PSI report, the trial court acknowledged on the record
appellant’s lack of prior criminal history and extensive support in his
community, but reasoned that the sentence it imposed was just, given the
fact that he could have been convicted of first-degree murder:
[Appellant], although you have no prior history and
you have a lot of support, what you did was a
vicious, unprovoked, inhumane, hateful, cowardly
act. There was absolutely no reason to take this
young man’s life, none.
You were given mercy; you got third degree,
not first.
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Notes of testimony, 2/12/16 at 31.
Proper appellate review dictates that this court not disturb a trial
court’s sentence absent a finding that the trial court failed to weigh the
sentencing considerations in a meaningful fashion. “When reviewing
sentencing matters, this Court must accord the sentencing court great
weight as it is in best position to view the defendant’s character, displays of
remorse, defiance or indifference, and the overall effect and nature of the
crime.” Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa.Super.
2009) (citation omitted), appeal denied, 987 A.2d 161 (Pa. 2009).
Accordingly, appellant’s challenges to the discretionary aspects of his
sentence must fail.
Based on the foregoing, we find no abuse of the trial court’s discretion
and affirm appellant’s February 12, 2016 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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