J. S11005/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
IDRIS KINARD,                            :            No. 120 EDA 2015
                                         :
                         Appellant       :

            Appeal from the Judgment of Sentence, March 11, 2011,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0002209-2010

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:               FILED MARCH 03, 2016

        Idris Kinard appeals from the judgment of sentence entered on

March 11, 2011. We affirm.

        A jury convicted appellant of three counts of attempted murder,1 three

counts of aggravated assault,2 two violations of the Uniform Firearms Act,3

and possession of an instrument of crime.4         The trial court sentenced

appellant to a term of incarceration of 15 to 30 years.

        The record reflects that the trial court retired from the bench.

Subsequently, the Honorable Daniel J. Anders was administratively assigned



1
    18 Pa.C.S.A. § 901(a).
2
    18 Pa.C.S.A. § 2702(a).
3
    18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6108.
4
    18 Pa.C.S.A. § 907(a).
J. S11005/16


to this matter on appellant’s Post-Conviction Relief Act5 review and this

subsequent nunc pro tunc direct appeal.             Judge Anders authored the

Pa.R.A.P. 1925(a) opinion. (Trial court opinion, 5/5/15 at 1 n.1.)

        Appellant raises two issues for our review:

              I.      Whether the prosecution engaged in pervasive
                      and persistent misconduct where all of the
                      discovery was not turned over until the day
                      before or the day of trial and where the
                      prosecutor referenced facts not in evidence
                      during sentencing that the Appellant was a
                      member of a gang where there was no such
                      evidence to support the allegation[?]

              II.     Whether it was error not to allow the jury
                      access     to   relevant evidence   that   the
                      perpetrator was a dark skinned African
                      American male when the Appellant is a light
                      skinned African American male where the
                      description of the perpetrator appeared in two
                      separate statements to detectives by two
                      different individuals[?]

Appellant’s brief at 6.

        Having      determined,   after   careful   review,   that   the   learned

Judge Anders, in his May 5, 2015 Rule 1925(a) opinion, ably and

comprehensively disposes of appellant’s issues on appeal, with appropriate

reference to the record and without legal error, we affirm on the basis of

that opinion.

        Judgment of sentence affirmed.




5
    42 Pa.C.S.A. §§ 9541-9546.


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J. S11005/16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2016




                          -3-
                                                                                              Circulated 02/16/2016 03:24 PM




                IN THE COURT OF COMMON PLEAS OF PHD..ADELPHIA COUNTY
                        FIR.ST JUDICIAL DISTRICT OF PENNSYL ANIA     . . . .       v
                                                                                                           FILED .  .· '.
                                 TRIAL DNISION - CRIMINAL
                                                                                                            MAY. 0 6 -Z0f5
    COMMONWEALTii               OF PENNSYLVANIA                          CP-5t"-CR-0002209~2QJQ .     :.
                                                                            . .            i; Gnmrn~!         APP.~als Unit
                                vs.                                      120 EDA 2015      .      ·FirstJua,c,al District of PA
    IDRIS KINARD

                                                      OPJNION

           Following a jury trial before the Honorable John O'Grady, Defendant Idris Kinard was

    convicted of three counts of attempted murder, three counts of aggravated assault, two violations

    of the Uniform Firearms Act ("VUF A"), and possession of an instrument of crime ("PIC"). The

    trial court sentenced Defendant to a total of fifteen to thirty years of incarceration. On appeal,

    Defendant argues that ( 1) the prosecution engaged in pervasive and persistent misconduct by not

    turning over   all-of the   discovery until.the day before or the   day of trial, (2) th~ trial court erred by
precluding two descriptions of the perpetrator as "a dark skinned AfricanAmerican male when

    the defendant is a light skinned African American male," and (3) the prosecutor referenced facts

not in evidence about Defendant's alleged gang membership during sentencing.' For the reasons

stated below, the Superior Court should affirm the judgment of sentence.

FACI1JALBACKGROUND

           On January 14, 2010, at approximately 5:30pm, Michael Greene, Sr. and his family were

exiting their house to go to Target. Michael Greene, Sr. exited the house first, and entered the

front driver's seat of his Lincoln Navigator. Defendant Idris Kinard was standing across the

street. Greene noticed two unknown males standing directly across the street. A few minutes

later Greene's daughter Michelle exited the house and entered the vehicle. Michelle Greene sat

behind her father on the driver's side of the second row of seats. A few minutes later, Michael


I
    Judge John O'Grady retired. Judge Daniel Anders was administratively assigned this matter on PCRA review and
this subsequent nunc pro tune direct appeal. For purposes of this opinion. "trial court" refers to Judge O'Grady.
    !   Greene, Jr. exited the house. As Michael Greene, Jr. headed to the passenger side of the vehicle,

        Defendant opened fire on Michael Greene, Jr. and shot in Greene's direction numerous times. As
I


' Michael Greene, Jr. jwnped into the vehicle, Defendant continued to fire at the vehicle hitting the

        rear passenger tire, the passenger side of the vehicle, the rear window, and the driver's side

        window. Michael Greene, Sr. and Michelle Green ducked to avoid the gunshots. None of the

        gunshots hit the intended victims or anyone else. Two of the gunshots struck a neighboring

; home. Inunediately after the shooting, Defendant fled the scene down a set of steps in the

, direction of Abbottsford Avenue. Defendant dropped his cell phone during his flight. N.T.

        01/04/2011 at 37-53, 61-68, 95, 101.

               After executing search warrants for Defendant's home and his grandmother's home,

        police recovered a .45 caliber Colt semiautomatic handgun and a .22 caliber revolver, which

        matched the two .22 caliber bullets recovered from the scene of the shooting. Police recovered

        Defendant's DNA from the trigger of the .22 revolver and the back strap handle of the .45 Colt

        semiautomatic handgun. Police also recovered an iPhone box with a serial number matching the

        iPhone found at the scene of the shooting. Police recovered letters and papers addressed to

        Defendant, including Defendant's identification. N. T; 01/05/2011 at' 32-42, 188-97.

        DISCUSSION

               Defendant raises three claims of error on appeal: (1) that the prosecution engaged in

    pervasive and persistent misconduct by not turning over all of the discovery until the day before

    or the day of trial, (2) the trial court erred by precluding two descriptions of the perpetrator as "a

    dark skinned African American male when the defendant is a light skinned African American

    male," and (3) the prosecutor referenced facts notin evidence about Defendant's alleged gang

    membership during sentencing.



                                                       -2-
    l
    ,,




                   l.     The Prosecutor Did Not Engage In Prosecutorial Misconduct Because
     I

    '.I
                          He Timely Turned Over All Discovery Prior To Commencement Of Trial

                  Defendant argues that the prosecution engaged in "pervasive and persistent misconduct

          where all of the discovery was not turned over until the day before or the day of trial[ ... ]." 1925

          Statement of Errors. Courts review claims ofprosecutorial      misconduct under an abuse of

          discretion standard. Commonwealth v. Lopez, 51 A.3d 74, 84 (Pa. Super. Ct. 2012).

          Consideration of claims of prosecutorial misconduct focuses on whether the defendant was

          deprived of a fair trial, not a perfect trial. Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa.

          Super. Ct. 2011 ).

                  Here, Defendant's prosecutorial misconduct claim appears to most-closely relate to 'a

          Brady violation, which-as       explained below-has    no merit. To establish a Brady violation. a

e         defendant must demonstrate that: (1) the evidence was suppressed by the Commonwealth. either

          willfully or inadvertently; (2) the evidence was favorable to the defendant; and (3) the· evidence

          was material, in that its omission resulted in prejudice to the defendant. Commonwealth v.

          Antidormi, 84 A.3d 736, 747 (Pa. Super. Ct. 2014). To demonstrate prejudice, the evidence

          suppressed must have been material to guilt or punishment. Id. at 74 7. Evidence is material when

          there is "a reasonable probability that, had the evidence been disclosed, the result of the trial

          could have been different." Id.

                  'The mere possibility that an item of undisclosed information might have helped the

          defense, or might have affected the outcome of the trial does not establish materiality in the

          constitutional sense." Id. (citing Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003)).

          Moreover, inadmissible evidence cannot be the basis for a Brady violation. Commonwealth v.

          Lambert, 884 A.2d 848 (Pa. 2005) (citing Wood v. Bartholomew, 516 U.S. 1 (1995)). The

          relevant inquiry is not   whether the defendant would more likely than not have received a


                                                           -3-
 different verdict with the evidence, but whether in its absence he received a fair trial, understood

 as a trial resulting in a verdict worthy of confidence. Antidormi, 84 A.3d at 748. A reviewing

 court is not to review the evidence in isolation, and must evaluate the omission in the context of

 the entire record. Id. (citing Commonwealth v. Dennis, 17 A.3d 297 (Pa. 201 I)).

        Here, there is no dispute that the Commonwealth provided all discovery to defense

counsel before trial commenced:

    •   On March 9, 2010, Defendant received initial discovery.

    •   On December 3, 2010, Defendant received additional discovery (including the DNA
        results, the DNA expert report, and some of the phone records) that was recently received
        by the Commonwealth.

    •   On December 20, 2010, Defendant received additional discovery (including additional
        certified phone records) that was recently received by the Commonwealth.

    •   On December 29, 2010, sent a letter identifying a picture of a phone that belonged to
        Tiera Bond and correcting defense counsel's misapprehension that this phone belonged to
        Defendant as discussed at a previous hearing.

    •   On January 3, 2011, which was the day trial commenced, Defendant received Tiera
        Bond's statement to detectives. Toe Commonwealth provided her statement before
        Defendant was arraigned, i.e., before trial commenced. Defense counsel did not request a
        continuance to investigate Bond's statement or attempt to locate her.

N.T. 01/04/2011 at 143-149, 152-157; N.T. 01/05/2011 at 4-16; N.T. 01/06/2011 at 56-58. With

the exception of Tiara Bond's statement to detectives, all of the discovery was timely turned over

to Defendant as soon as that discovery was created or came into the possession of the

Commonwealth. N.T. 01/04/2011 at 154; N.T. 01/05/2011 at 5.

        Although there was testimony during the trial that Officer Lally prepared a 75-48 police

report for Tiera Bond and another female, it was later determined that no such police paperwork

existed. Indeed, after Lally testified, the Commonwealth retrieved· and reviewed every 75-48

report that was completed in the 39th police district in Philadelphia on January 14, 2010, which

was the day of the shooting. Based upon its review of all police paperwork, the Commonwealth
                                               -4-
., represented to the trial court that no 75-48 report was ever created for Tiera Bond or the other

 female. Thus, there was no 75-48 report or any other police paperwork that could be produced as

 it never existed.

         Because all discovery was passed prior to trial andDefendant     cannot identify any

 evidence that was suppressed by the Commonwealth, there is no Brady violation. Moreover, all

 discovery was turned over in a timely fashion to Defendant and as it was received by the

 Commonwealth-with the exception of Bond's statement. Although Bond's statement was turned

 over- on the day that trial commenced, it was passed prior to the actual commencement of trial.

 Defendant's failure to request a continuance to investigate Bond and her statement cannot form

 the basis for a claim for prosecutorial misconduct, particularly when the Commonwealth

 indicated that it would have agreed to a continuance. N.T. 01/05/2011 at 6. As such, Defendant's

 prosecutorial misconduct claim is without merit.

         2.      The Trial Court Properly Excluded Defendant's Proposed Hearsay Evidence

        Defendant argues that the trial court improperly precluded evidence from two sources

 that the perpetrator of the shooting was a "dark-skinned African-American male." "The

 admission or exclusion of evidence is within the sound discretion of the trial court, and in

reviewing a challenge to the admissibility of evidence, [the appellate court] will only reverse a

ruling by the trial court upon a showing that it abused its discretion or committed an error of

law." 8.1(. v. JK., 823 A.2d 987, 991-92 (Pa. Super. Ct. 2003). "An abuse of discretion is not

merely an error of judgment, but the misapplication or overriding of the 1 aw or the exercise of a

manifestly unreasonable judgment based upon partiality, prejudice or ill will." Commonwealth v.

Charleston, 16 A.3d 505, 526 (Pa. Super. Ct. 2011).

        Hearsay is an out-of-court statement offeredto prove the truth of the matter asserted in

the statement. Commonwealth v. Kuder, 62 A.3d 1038 (Pa. 2013). Hearsay is generally
                                                 -5-
I
    , inadmissible because this evidence lacks guarantees of trustworthiness fundamental to our

!    system of jurisprudence. Id. The rule against admitting hearsay stems from its preswned
'
     unreliability because the declarant cannot be chaJlenged regarding the accuracy of the statement.

     Id. Nevertheless, certain hearsay exceptions apply in Pennsylvania to accommodate certain

     classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit

     exception to the general hearsay rule. Id. Of course, where a statement is offered for a purpose

    other than proving the truth of its contents, it is not hearsay and not barred by the hearsay rules.

    Id.
            Here, Defendant wanted to introduce two statements by declarants that the perpetrator of

    the shooting was a "dark-skinned African-American male." Instead of calling the declarants who

· made the statements to testify at trial, Defendant wanted to call Detective Mayer, Detective

    Grace and Officer Lally to testify regarding the contents of the statement relating to the

    description of the perpetrator, i.e., a dark-skinned African-American maJe. N.T. 01/06/2011 at 3-

    13, N.T. 01/04/2011 at 118-22, 140-42.

           The evidence is classic hearsay. The statementand words at issue=-dark-skinned

    African-American male-were uttered by Tiera Bond and Michael Greene·, Jr. in out-of-court

    statements to police during the police investigation immediately following the shooting. Defense

    counsel argued that it was necessary to admit these statements about skin color and complexion

    because it would prove that Defendant (who is light skinned) was not the shooter because the

    shooter was dark skinned. See N.T. 01/04/2011 at 153-157; N.T. 01/05/2011 at 4-7. As such, the

    only purpose for which Defendant argued the statements should be admitted was for the truth of

    the matter asserted, i.e., that the perpetrator was a dark-skinned African-American male, not

    light-skinned.



                                                    -6-
                    No exception to the hearsay rule applies including exceptions under Rule 803, Rule 803.1

 I           and Rule 804. Although Rule 803.1 permits prior statements of identification, Rule 803.l{c)

             requires the declarant to testify at the trial and be subject to cross-examination. Since neither

     . Greene nor Bond testified at trial, their statements could not be admitted through Rule 803. I.

             Although Rule 804 does provide several hearsay exceptions when a declarant is unavailable at

             trial. none of those exceptions applied.2 Thus, although Greene may have been unavailable

     I       because he exercised his Fifth Amendment privilege, none of the exceptions under Rule 804

             applied. As for Bond, there is no information as to why she was not present for trial, so she does

         not even meet the criteria for being unavailable under Rule 804.
I

,;                  Thus, the trial court did not abuse its discretion and properly precluded the admission of
.,
         the hearsay statements by Bond and Greene regarding their descriptions of the perpetrator.'
                    3.     The Trial Court Properly Denied Defendant's Objections
                           Based On The Prosecutor's Comments At Sentencing

                    Defendant argues that the trial court erred by allowing inappro~riate remarks by the

         prosecutor during sentencing. Claims of prosecutorial misconduct are reviewed under an abuse

         of discretion standard. Lopez, 57 A.3d at 84. Claims involving allegedly inappropriate remarks

         by prosecutors focuses on whether the defendant was deprived of a fair trial, not a perfect trial.

         Solomon, 25 A.3d at 383. A prosecutor's statements to the jury do not occur in a vacuum and

         must be viewed in context. Id. Not every inappropriate remark by a prosecutor constitutes

         2
,          The enumerated exceptions are former testimony, statements under belief of imminent death, statements against
         interest, statements of personal or family history, and statements offered against a party that wrongfully caused the
         declarant's unavailability. See Rule 804(b).
         3
       Even assuming the trial court's evidentiary ruling was improper, this aUeged error would constitute harmless error
     given the overwhelming evidence of Defendant's guilt that is summarized infra at 1-2. See generally
      Commonwealth v. Green, 76 A.3d 575, 582 (Pa. 2013) (stating that harmless error exists if the reviewing court is
     convinced beyond a reasonable doubt from the record that: (1) the error did not prejudice the defendant or the
     prejudice was de minimis, (2) the erroneously admitted evidence was merely cumulative of other untainted evidence
     that 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 was so insignificant by comparison that
     the error could not have contributed to the guilty verdict.").
                                                                  -7-
    ~.

l
         reversible error. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). Even if the

1j prosecutor's arguments are improper, they generally        will not form the basis for a new trial unless

I
         the comments unavoidably prejudiced the jury and prevented a true verdict. Commonwealth v.

         Rolan, 964 A.2d 398, 410 (Pa. Super. Ct. 2008).

                Here, Defendant argues that during sentencing the prosecutor cited to several facts not in

         evidence regarding Defendant's alleged membership in a gang. Defendant repeatedly objected to

         the prosecutor's statements during the sentencing hearing. N.T. 03/11/2011 at 9-12.

                Even assuming arguendo that the prosecutor's statements were improper, Defendant

         cannot prove prejudice in his sentencing. First, Defendant received a downward departure from

         the applicable sentencing guidelines for each conviction. So, although the sentencing guidelines

' called for a minimum sentence of 78 months to 96 months of incarceration, plus or minus twelve

         months of incarceration, the trial court sentenced Defendant to a minimum sentence of only 60

     months on each count of attempted murder. Thus, Defendant received not only a fully mitigated

     sentence, but actually a sentence that departed below the fully mitigated range. The trial court

     imposed the lowest possible seritence available to him.

               Second, although the trial court imposed consecutive sentences for the three attempted

     murder convictions, a challenge to the exercise of a sentencing judge'sdiscretion      to impose

     sentences consecutively does not even raise a substantial question on direct-appeal as to the

     appropriateness of the sentence. Commonwealth v. Treadway, 104 A.3d 597 (Pa. Super. Ct.

     2014).

               Third, the trial court did not rely on the prosecutor's argument that Defendant was an

    alleged gang member when he explained the factors he considered in imposing the sentence.

    N.T. 03/11/2011 at 27-29. Although he referenced the "community of30th·and Allegheny," this

    was an entirely appropriate    consideration' under the sentencing code   and was diicuss'ed without
                                                       -8-
reference to Defendant's alleged gang membership. Id.; see 42 Pa.C.S. § 9721 (when sentencing

a defendant, the trial court "shall follow the general principle that the sentence imposed should

call for confinement that is consistent with the protection of the public, the gravity of the offense

as it relates to the impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.").   .

       Thus, Defendant cannot prove that he suffered any prejudice during the sentencing

hearing.

CONCLUSION

       Based on the foregoing, the judgment of sentence should be affirmed.




DANIELJ.
Dated: May 5, 2015




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