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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




____________________________________________
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.
____________________________________________
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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J-S46014-15


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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J-S46014-15


             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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J-S46014-15


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.
____________________________________________
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

____________________________________________
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).
____________________________________________
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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