J-A21001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SIM AMIN MORTON,

                            Appellant                No. 561 EDA 2013


            Appeal from the Judgment of Sentence October 2, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002070-2012


BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 28, 2014

       Sim Amin Morton appeals from the judgment of sentence of thirteen to

twenty-six years incarceration to be followed by four years of probation

imposed by the trial court. A jury found him guilty of attempted murder,

aggravated assault, firearms not to be carried without a license, carrying a

firearm in public in Philadelphia, possession of an instrument of crime, and

persons not to possess a firearm.1 After careful review, we affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The jury did not determine the person not to possess a firearm charge
until after it returned its verdicts on the remaining charges. Following those
guilty verdicts, the jury was instructed that Appellant had a disqualifying
offense and was instructed on the elements of the relevant crime before
finding Appellant guilty. The jury also acquitted Appellant of a charge of
aggravated assault relative to the girlfriend of the victim herein.
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      Shortly before midnight on September 28, 2011, police received a

report of shots fired on the 1000 block of North Edgewood Street,

Philadelphia. They ultimately recovered eight fired cartridge casings from a

.40 caliber weapon. When police arrived on the scene, they observed that a

window to a store had been shattered, and across the street a passenger-

side window to a vehicle had been shot out. A man, Evan Davis, approached

police from the area of the vehicle and indicated that he had been shot. The

victim was transported to the Hospital of University of Pennsylvania along

with his girlfriend, Shynetta Benyard, who was uninjured. While police were

transporting Mr. Davis to the hospital, he instructed Ms. Benyard to cease

describing the shooter to police.     Mr. Davis also, while at the hospital,

initially described his assailant as a slim black male, between six feet and six

feet two inches in height, who was wearing black pants with a red stripe

down the legs and black and red shoes. Later when speaking with police,

Mr. Davis refused to provide the race of the individual who shot him or to

identify Appellant.



Edgewood Street at the time of the shooting. She indicated that earlier in

the evening

prior girlfriend, while her son and his girlfriend were congregating with a

group of other individuals. Appellant was involved in the dispute. After the




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argument ended, Mr. Davis and Ms. Benyard went over to her vehicle when

shots rang out.2

       Ms. Kearns indicated to police at approximately 2:00 a.m., two hours

after the shooting, that Appellant had shot her son.        She knew Appellant

from the neighborhood and initialed the statement that she made to police

around 2:45 a.m., wherein she stated that Appellant had come around the

corner and started shooting.         At trial, however, she claimed that she had

been drinking excessively on the night of the incident, and testified that she

could not identify Appellant as the shooter. The officer who interviewed the



spoke with her.



the altercation with Ms. Benyard, also provided police with a statement

shortly after the shooting.         She identified Appellant as the shooter and



Michael Buckeholder, before the shooting. In addition, she informed police

that Appellant and the victim had issues for a long period and that another




____________________________________________


2
  Ms. Benyard was not the registered owner of the car, a 1995 Nissan
Maxima, but was in possession of the vehicle.



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testified that she did not actually see the shooting because she was inside

her home.

     Another woman, Latoya Jenkins, the girlfriend of Michael Buckeholder,

identified Appellant as the shooter shortly after the incident, though she

claimed at trial that she was too intoxicated to see who fired the shots.

Appellant acknowledged at trial having words first with Ms. Jenkins and then

her boyfriend before the shooting. However, he claimed that he was with

his girlfriend at his apartment at the time of the shooting and waiting on

another woman to stop at his home to purchase marijuana.

     At trial, the Commonwealth also introduced taped conversations

between Appellant and another woman, while he was incarcerated, in which

he asked her to dispose of a pair of shoes and marijuana.              These

conversations also revealed Appellant attempting to secure alibi witnesses

and that he wanted to contact the eyewitnesses.      The jury returned the

aforementioned guilty verdicts and the court sentenced Appellant. Appellant

filed a timely post-sentence motion, which the court denied.    This timely

appeal ensued.    The trial court directed Appellant to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant complied, and the trial court authored its Rule 1925(a) opinion.

The matter is now ready for our review. Appellant presents two issues on

appeal.

     1. Is the evidence insufficient to prove that Appellant was the
        perpetrator of the crimes?


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      2. Did the trial court err in permitting the Commonwealth to ask
         the defendant questions regarding his arrest for selling
         narcotics on the 100 block of N. Edgewood Street?



      We review the sufficiency of the evidence by considering the entire

record and all of the evidence admitted at trial.          Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).              We view such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth.       Id.   When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail.   Id.                 need not preclude every

possibility of innocence and the fact-finder is free to believe all, part, or none

                                 Id. In addition, the Commonwealth can prove

                                                  the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

from t

                                    -weigh the evidence and substitute our

judgment for that of the fact-            Id.

      In the present case, the Commonwealth provided evidence from

eyewitnesses to the shooting who identified Appellant as the shooter.

Although these witnesses declined to identify Appellant at trial, their prior

signed statements are sufficient to establish each element of attempted



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murder and aggravated assault.           The jury was free to reject the



statements. To the extent Appellant fails to develop any argument on the

remaining convictions as to which elements of the crime the Commonwealth

failed to establish,

claim is without merit.



Commonwealth      to   introduce   evidence   that   Appellant   was   previously

convicted of possession with intent

incident that transpired on Edgewood Street. While we agree that the trial

court erred in admitting this evidence, we conclude that the error was

harmless.    Prior crimen falsi convictions are admissible into evidence,

however, PWID is not a crimen falsi crime. Further, evidence of prior bad




Commonwealth v. Brown, 52 A.3d 320, 325 (Pa.Super. 2012); Pa.R.E.

404(b)(2).   As we noted in Brown                         -              Brown,

supra at 325.    For example, evidence of a bad act may be admissible to



have a criminal history, or where the defendant uses his prior history to

intimidate or threaten a victim, or the bad act is part of the res

gestae/natural history of the case.    Id. at 326.     Of course, the probative


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value of the bad acts evidence must outweigh its prejudicial impact.     Id.;

Pa.R.E. 403.

       The Commonwealth argued at trial that because Appellant testified

that he took care of his grandmother and other elderly people on the block

in question, and admitted to selling marijuana, he opened the door to

introduction of his PWID conviction. It added that since Appellant testified

that he made money by planning parties, it should be permitted to impeach

that testimony with evidence that he earned a living as a drug dealer. We

disagree.3 Indeed, none of the common law exceptions to the rule against

bad acts or the list included in the relevant rule of evidence applies to this



the door to introduction of the commission of a crime in the same




theory was related to a differing neighborhood dispute.

       Additionally, the PWID conviction could not establish identity, intent,

preparation, plan, knowledge or absence of mistake where the defendant

was charged with a wholly unrelated shooting incident unrelated to a drug

crime. In this respect as well, the res gestae exception has no applicability.
____________________________________________


3
  We note that the Commonwealth failed to timely file a brief in this matter.
We do not consider its patently untimely brief.             Accordingly, the
Commonwealth has not provided a single case that is remotely analogous
which would authorize the introduction of the evidence in question.



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There also was no suggestion that Appellant used his PWID conviction to




below is not persuasive. Nonetheless, we hold for the following reasons that

the error was harmless.

      Our Supreme Court explained in Commonwealth v. Allshouse, 36

A.3d 163, 182 (Pa. 2012), that a court is permitted to affirm a judgment

based on harmless error even if the parties do not raise that argument. Id.

Harmless error exists if there is no reasonable possibility that the error could

have contributed to the verdict. Commonwealth v. Green, 76 A.3d 575,

583 (Pa.Super. 2013). In this respect, an error is harmless if it

      did not prejudice the defendant or the prejudice was de minimis;
      or (2) the erroneously admitted evidence was merely cumulative
      of other untainted evidence which was substantially similar to
      the erroneously admitted evidence; or (3) the properly admitted
      and uncontradicted evidence of guilt was so overwhelming and
      the prejudicial effect of the error so insignificant by comparison
      that the error could not have contributed to the verdict.

Id.

      Appellant himself acknowledged as part of his testimony regarding an

alibi that he sold marijuana. In addition, the jury was aware that Appellant

sold marijuana because he was recorded while in jail telling a person to get

rid of marijuana joints. Thus, the jury was already aware that Appellant sold

drugs, although not cocaine. The Commonwealth also introduced evidence

that Appellant, while incarcerated, solicited a person to dispose of a pair of


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shoes that he owned which matched the description given by the victim.

Although several eyewitness testified at trial that they were too intoxicated

to identify Appellant, each witness, all of whom knew Appellant, had

informed police shortly after the shooting that he was the culprit. Moreover,



five-day trial.   Accordingly, we find the prejudice resulting from the

                                                     de minimis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2014




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