J-S56028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    MUNIR PANKERY

                             Appellant                No. 946 EDA 2016


          Appeal from the Judgment of Sentence Entered March 15, 2016
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos: CP-51-CR-0004331-2014;
                            CP-51-CR-0004332-2014


BEFORE: BOWES, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 28, 2017

        Appellant Munir Pankery appeals from the March 16, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”), following his jury convictions for second degree murder, carrying a

firearm without a license, and possessing an instrument of crime at docket

number 4331 and attempted murder, aggravated assault, and carrying a

firearm without a license at docket number 4332.1 Upon careful review, we

affirm.

        The facts and procedural history underlying this case are undisputed.

Briefly, on December 28, 2013, shortly following reports of an armed robbery

outside of the Studio 7 Bar in Philadelphia, police responded to a shooting
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 2502(b), 6106, 907, 2502(a), 2702(a)(1), and 6106.
J-S56028-17



near the same location. Upon arriving, the police found a forty-two-year-old

victim, Anthony Hinds, deceased on the ground. The next day, the police were

called to the scene of a double shooting at a Chinese restaurant, located a few

doors down from the Studio 7 Bar. One of the victims, Corey Wright, had

been shot from a close range five times, thrice in the head, once in the back

and once in the chest. Unlike Mr. Hinds, however, Mr. Wright survived the

shooting.

       Eventually, Appellant was charged at three separate dockets relating to

the three criminal incidents near the Studio 7 bar.2 At docket 4331, he was

charged with murder and a firearms violations in connection with the shooting

death of Mr. Hinds. At docket 4332, related to the shooting of Mr. Wright,

Appellant was charged with attempted murder, aggravated assault and

firearms violations.

       On August 21, 2014, the Commonwealth filed a motion for consolidation

of the three dockets for a single trial.         Following a hearing, the trial court

granted in part and denied in part the Commonwealth’s motion. Specifically,

the trial court permitted the Commonwealth to consolidate the two shooting

cases at dockets 4331 and 4332, but denied the consolidation of the robbery

case at docket 4330.3

____________________________________________


2 At docket 4330, which is not at issue here, he was charged with, inter alia,
robbery, conspiracy, receiving stolen property and simple assault.
3 Based on the outcome of the eventual jury trial in this case, the
Commonwealth nolle prossed the charges at docket 4330.

                                           -2-
J-S56028-17



       On March 16, 2015, Appellant filed an omnibus pretrial motion, seeking,

inter alia, to suppress the statements he gave to the police following his arrest.

Appellant argued that his statements were involuntary. On March 3, 2016,

Appellant filed a motion in limine to prevent the Commonwealth from

introducing the preliminary hearing testimony of Mr. Wright, who since had

passed away. Appellant argued that the Commonwealth’s failure to provide

him with video surveillance footage retrieved from the Studio 7 Bar deprived

him of a fair opportunity to cross-examine Mr. Wright at the preliminary

hearing.     On March 4, 2016, the Commonwealth filed a cross-motion,

requesting the trial court to allow the Commonwealth to introduce into

evidence the transcript of Mr. Wright’s preliminary hearing testimony and

rejecting Appellant’s contention that he was deprived of a fair opportunity to

cross-examine Mr. Wright. The Commonwealth also filed a motion to admit

evidence of Appellant’s prior bad act under Pa.R.E. 404(b)(2). Specifically,

the Commonwealth argued that it be allowed to introduce into evidence, under

the res gestae exception,4 Appellant’s involvement in the robbery at docket

4330 that occurred prior to the shooting cases at issue here.




____________________________________________


4 Our Supreme Court “has also recognized the res gestae exception,
permitting the admission of evidence of other crimes or bad acts to tell ‘the
complete story.”’ Commonwealth. v. Hairston, 84 A.3d 657, 665 (Pa.
2014) (citation omitted).

                                           -3-
J-S56028-17



       On March 7, 2016, the trial court held a hearing on Appellant’s

suppression motion. The trial court summarized the testimony presented at

the hearing as following:

             At the suppression hearing, the Commonwealth presented
       the testimony of Philadelphia Police Detectives Robert Daly and
       John Harkins, and Philadelphia Police Correctional Officer Sheila
       Grant-Covey.     [Appellant] testified on his own behalf and
       presented the testimony of Dr. Lawrence Guzzardi. The following
       facts were established at the hearing.

             On December 27, 2013, Detective Robert Daly became the
       assigned detective in a robbery that occurred outside the Studio
       7 Bar, in the late evening hours of that day. The robbery victim,
       Kamar Johnson, identified [Appellant] as the robber from a photo
       array on December 30, 2013. Daly was also assigned a double
       shooting case that occurred around the corner from the bar on the
       night of December 29, 2013. At approximately 2:00 a.m. on the
       morning of December 30, 2013, Daly went to the Studio 7 Bar to
       retrieve any possible video surveillance footage pertaining to the
       shooting case. At that time, Daly observed [Appellant] by the bar
       and arrested him for the robbery.

              Daly turned [Appellant] over to the police officers to be
       transported and was about to go back to retrieve the shooting
       video when he received a telephone call advising him that one of
       the shooting victims, Corey Wright, had told another detective
       that [Appellant] had shot him. Daly then took a photo array to
       Wright’s hospital room at approximately 2:45 a.m., where Wright
       identified [Appellant] as the shooter. Daly then executed a search
       warrant at [Appellant’s] home at approximately 9:00 that morning
       and recovered a firearm and clothing that appeared, from
       surveillance video, to have been worn by the shooter. After
       executing the search warrant, Daly returned to the police district
       and went to the holding cell to speak with [Appellant]. However,
       [Appellant] stated that he wanted to speak with an attorney, and
       therefore, no statement was taken.

             While Daly was processing evidence at approximately 11:15
       a.m. that same morning, [Appellant] knocked on the window of
       the holding cell where he was being held and informed Daly that
       he would “tell [Daly] what happened.” Daly then took [Appellant]
       into an office where [Appellant] waived his Miranda[5] rights and
____________________________________________


5 Miranda v. Arizona, 384 U.S. 436 (1966) (holding that statements
obtained from defendants during interrogation in police-dominated



                                           -4-
J-S56028-17


       admitted to participating in both the robbery and the double
       shooting (“first statement”). [Appellant] also made statements
       concerning the homicide that occurred around the corner from the
       Studio 7 Bar shortly after the robbery, but before the double
       shooting. After being interviewed by Daly, [Appellant] was
       interviewed by detective Antonini and Fife regarding other
       unrelated criminal matters that [Appellant] had mentioned in his
       first statement, and provided another statement (“second
       statement”) at approximately 6:10 p.m. that same day. Police
       again informed [Appellant] of his Miranda rights prior to his
       second statement.

              At approximately 12:30 a.m., on December 31, 2013,
       [Appellant] was brought to an interview room in the homicide
       division of the police department. There he was interviewed by
       Detective John Harkins in connection with the homicide that
       [Appellant] referenced in his first statement. Harkins informed
       [Appellant] of his Miranda rights prior to this discussion, and
       [Appellant] agreed to speak with Harkins.            At that time,
       [Appellant] talked with the detectives regarding the homicide,
       indicating that he was present, but that someone else had shot
       and killed [Mr. Hinds]. [Appellant] also drew a diagram of the
       crime scene.       After Harkins confronted [Appellant] with
       inconsistencies between his version of the incident and the
       evidence seen in the video surveillance tapes, [Appellant] stated
       that he would not make a formal statement. Harkins summarized
       his discussion with [Appellant] in a written activity sheet.

Trial Court Opinion, 9/23/16, at 2-4 (record citations omitted). Following the

hearing, the trial court denied Appellant’s omnibus pretrial suppression

motion. Additionally, the trial court denied Appellant’s motion in limine and

granted the Commonwealth’s cross-motion. On the same day, the trial court

also granted the Commonwealth’s Rule 404(b)(2) motion.

       The case proceeded to a jury trial, following which the jury found

Appellant guilty of second degree murder, carrying a firearm without a license,

and possessing an instrument of crime at docket 4331. The jury also found

____________________________________________


atmosphere, made without full warning of applicable constitutional rights,
were inadmissible as having been obtained in violation of Fifth Amendment
privilege against self-incrimination).

                                           -5-
J-S56028-17



Appellant guilty of attempted murder, aggravated assault, and carrying a

firearm without a license at docket 4332. On March 15, 2016, the trial court

sentenced Appellant to life imprisonment without the possibility of parole for

second degree murder at docket 4331 and a consecutive aggregate term of

20 to 40 years’ imprisonment at docket 4332. Appellant timely appealed to

this Court.

      The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal. Appellant failed to comply. In response,

the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant

had waived his appellate claims.

      On June 14, 2016, Appellant filed in this Court an “Application for

Remand,” seeking permission to file a Rule 1925(b) statement. On July 12,

2016, we granted Appellant’s application for remand with instruction that he

file a Rule 1925(b) statement within 21 days of the date of our order and that

the trial court, in turn, prepare a supplemental Rule 1925(a) opinion.

Appellant complied, raising three assertions of error:

      [I.] The trial court erred in granting the Commonwealth’s [Rule]
      404(b) motion and allowing evidence of robbery, which was not
      consolidated, to be admitted into evidence to show “res gestae”
      of the case and investigation.

      [II.] The trial court erred in denying [Appellant’s] motion to
      suppress statements based on voluntariness. This occurred after
      Appellant testified that he was going through withdrawal, an
      expert on toxicology testified on the effects of withdrawal, and
      evidence of treatment, for withdrawal, immediately upon
      admission to the prison took place.

      [III.] The trial court erred by denying Appellant’s motion to
      preclude the preliminary hearing testimony of Corey Wright.
      Appellant did not have a full and fair opportunity to cross[-

                                     -6-
J-S56028-17


       ]examine Mr. Wright regarding the video evidence, that was only
       passed to defense counsel after the preliminary hearing, which
       would [sic] substantially impeached his preliminary hearing
       testimony and statements to police.

Appellant’s Rule 1925(b) Statement, 7/18/16.6             The trial court filed a

supplemental Rule 1925(a) opinion.

       On appeal,7 Appellant repeats the same assertions of error. After careful

review of the record and the relevant case law, we conclude that the trial court
____________________________________________


6 As the Commonwealth points out, to the extent Appellant appears to raise a
claim under the law of the case doctrine with respect to the introduction of
the robbery under Rule 404(b), such claim is waived because he failed to
assert it before the trial court. Commonwealth’s Brief at 16; see Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”).
7 In reviewing appeals from an order denying suppression, our standard of
review is limited to determining
      whether [the trial court’s] factual findings are supported by the
      record and whether [its] legal conclusions drawn from those facts
      are correct. When reviewing the rulings of a [trial] court, the
      appellate court considers only the evidence of the prosecution and
      so much of the evidence for the defense as remains
      uncontradicted when read in the context of the record as a whole.
      When the record supports the findings of the [trial] court, we are
      bound by those facts and may reverse only if the legal conclusions
      drawn therefrom are in error.

Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our
scope of review is limited to the evidence presented at the suppression
hearing. In the interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).

Our standard of review relating to evidentiary challenges is settled:

       [a]dmission of evidence is within the sound discretion of the trial
       court and will be reversed only upon a showing that the trial court
       clearly abused its discretion. 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.



                                           -7-
J-S56028-17



accurately and thoroughly addressed the merits of Appellant’s claims. See

Trial Court Opinion, 9/23/16, at 5-12.           We agree with the trial court’s

conclusions that (1) the robbery evidence was necessary to show the history

of the investigation of the homicide and shootings, (2) Appellant’s statements

to the police were not given involuntarily, and (3) Appellant had sufficient

information prior to the preliminary hearing to cross-examine Mr. Wright.

Accordingly, we affirm Appellant’s March 15, 2016 judgment of sentence. We

further direct that a copy of the trial court’s September 23, 2016 opinion be

attached to any future filings in this case.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




____________________________________________


Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal
citations omitted), appeal denied, 128 A.3d 220 (Pa. 2015). Moreover, an
appellant bears a “heavy burden” to show that the trial court has abused its
discretion. Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015).

                                           -8-
                                                                                                                                           RLED
0032_Motion_for_Extension_of_Time
                                                                                                                Circulated 10/25/2017 11:1312:09:47
                                                                                                                                 05/27/2016 AM      PM


                                                                                                                                       By: T. COS



                                    ALVA & SHUTTLEWORTH, LLC
                                    BY: JEREMY,EVANALVA, ESQ                                      ATIORNEY FOR PETITIONER
                                    IDENTIFICATION NO. 90932
                                    1520 LOCUST ST., SUITE 700
                                    PHILADELPHIA, PA 19102
                                    215,665--1695 FAX: 665,0183

                                    COMMONWEALTH OF PENNSYLVANIA                                  COURT OF COMMON PLEAS
                                                                                                  TRIAL DIVISION
                                                    v.                                            CRIMINAL SECTION

                                    MUNIR PANKERY                                                 CP,51,CR,0004331,2014
                                                                                                  CP,51,CR,0004332,2014

                                           NUNC PRO TUNC PETITION FOR TIME EXTENSION TO FILE A 1925(b)
                                                     STATEMENT OF ERRORS COMPLAINED OF ON APPEAL

                                    TO THE HONORABLE JUDGE GLENN B. BRONSON OF THE SAID COURT:

                                           Appellant, Munir Pankery, by and through his attorney, Jeremy-Evan Alva, Esquire

                                    respectfully requests that an extension of time be granted to file a concise Statement of Errors

                                    Complained of on Appeal pursuant to Pennsylvania Rules of Appellate Procedure 1925(b) ("the

                                    1925(b) statement"), and in support thereof avers the following:

                                            l.      On March 15, 2016, Appellant was sentenced by the Honorable Glenn B.

                                    Bronson.

                                            2.      On March 23, 2016, Appellant filed a Notice of Appeal to the Superior Court of

                                    Pennsylvania.

                                            3.      On March 24, 2016, this Court Ordered that Appellant file the 1925(b) statement

                                    by April 14, 2016.

                                            4.      On April 13, 2016 this Honorable Court granted the extension of time and set a

                                    new date of May 41 2016.
                      IN THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                      COURT OF COMMON PLEAS, PHILADELPHA COUNTY
                              TRIAL DIVISION-CRIMINAL SECTION


COMMONWEALTH OF PENNSYLVANIA                                  COURT OF COMMON PLEAS
                                                              TRIAL DIVISION
                 v.                                           CRIMINAL SECTION

MUNIR PANKERY                                                  CP-51-CR-0004331-2014
                                                               CP-51-CR-0004332-2014

                                       NOTICE OF HEARING

           AND NOW, this          day of-------------     2016, upon consideration of the annexed

Petition    for Extension   of Time,   on behalf of Appellant, MUNIR      PANKERY, it is hereby

ORDERED and DECREED that a hearing on said petition be heard on the                          day of

________ , 2016 at                 , in Courtroom        , Criminal Justice Center,    Philadelphia,

Pennsylvania.




                                                        BY THE COURT:



                                                        Glenn B. Bronson, J.
                    IN THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                    COURT OF COMMON PLEAS, PHILADELPHA COUNTY
                            TRIAL DIVISION-CRIMINAL SECTION


COMMONWEALTH OF PENNSYLVANIA                                  COURT OF COMMON PLEAS
                                                              TRIAL DIVISION
               v.                                             CRIMINAL SECTION

MUNIR PANKERY                                                 CP-51-CR-0004331-2014
                                                              CP-5l-CR-0004332-2014

                                              ORDER

       AND NOW, to wit, this                  day of                             , 2016, it is hereby

ORDERED and DECREED that Appellant                 Munir Pankery's Nunc Pro Tune Petition          for

Extension of Time to File a 1925(b) Statement of Errors Complained of on Appeal is GRANTED.

Appellant is given an additional thirty (30) days from the receipt of the notes of testimony to file a

1925(b) Statement. Accordingly, Appellant must file a 1925(b) Statement on or before the

_______ day of-----------------------•          2016.




                                                               Glenn B. Bronson,   J.
       5.      Undersigned   counsel    has been   in constant    contact   with   Stenographer   Kelly

Catanzatiti, by and through his associate, Edward   J.    Foster, Esq. and was informed on May 12,

2016 that the notes were nearing completion and received a follow up email on May 23, 2016

asking what form counsel would like the notes to be printed in. (Attached herin, as exhibit 'A',

email thread between Ms. Catanzariti and Mr. Foster).

       6.      Undersigned counsel will be receiving the notes of testimony on May 2 7, 2016.

       7.      Because undersigned     counsel for Appellant is still not fully aware of the exact

nature of the issues to be complained and will not be until the record is more fully reviewed,

Appellant is requesting a reasonable amount of time for him to receive and review the record.

       WHEREFORE, Appellant respectfully requests an order for extension of time to file the

l 925(b) statement.


                                                         Respectfully Submitted,




                                                                --~4%
                                                         ~l'C,iV:Lr·EVAN ALVA,     ESQ.
ALVA & SHUTTLEWORTH, LLC
BY: JEREMY-EVANALVA, ESQ                                      ATIORNEY FOR PETITIONER
IDENTIFICATION NO. 90932
1520 LOCUST ST., SUITE 700
PHILADELPHIA, PA 19102
215-665-1695FAX: 665-0183

COMMONWEALTH OF PENNSYLVANIA                                  COURT OF COMMON PLEAS
                                                              TRIAL DIVISION
               v,                                             CRIMINAL SECTION

MUNIR PANKERY                                                 CP-51-CR-0004331-2014
                                                              CP-51-CR-0004332-2014


                                  CERTIFICATE OF SERVICE

        l, Jeremy-Evan Alva, Esq., hereby certify that a true and correct copy of the foregoing was

served upon the following on today's date:

                          Office of the District Attorney of Philadelphia
                                     ADA Hugh Burns, Esq.
                                    Three South Penn Square
                                     Philadelphia, PA 19107
                                        (via hand delivery)




DATE:   dz11r~
EXHIBIT 'A'
5/27/2016                                    Alva and Shuttleworth, LLC Mail - Re: Munir Pankery Notes




                                                                                       Edward Foster <efoster@alvafirm.com>



   Re: Munir Pankery Notes
  Catanzariti,Kelly <Kelly.Catanariti@courts. phi la.gov>                                                Tue, May 24, 2016 at 9:32 AM
  To: Edward Foster <efoster@alvafirm.com>

      Hi Ed!

     Okay, great! When you have an idea on what day you'll be sending someone over, just let me know a day in
     advance. The trial is over 1500 pages and I just want to give the copy center notice so they can be printed,
     so your courier doesn't have to wait while they're printing them.

      Have a good day!!

     Sent from my iPhone

     On May 24, 2016, at 7:44 AM, Edward Foster <efoster@alvafirm.com<mailto:efoster@alvafirm.com» wrote:

      Kelly,

      I let Jeremy know the notes are ready. We've reached out to the family to see when they will be in with the
      balance. I will let you know as soon as that happens, hopefully by the end of the week.

      Ed

      On Mon, May 23, 2016 at 9:36 AM, Catanzariti, Kelly <Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
      Catanariti@courts.phila.gov» wrote:
      Hi Ed!

      I wanted to follow-up with you for the balance of the Pankey notes.

     Also, I wanted to know if you want me to printout a full size copy of the trial          or if you want minuscripts or both.
     Just let me know and I can have them ready for pickup at the copy center.

      Have a great day!
      Thanks!

      Sent from my iPhone

      On May 12, 2016, at 12:49 PM, Edward Foster <efoster@alvafirm.com<mailto:efoster@alvafirm.com>
      <mailto:efoster@alvafirm.com<mailto:efoster@alvafirm.com>>> wrote:

      Hi Kelly,

      Thanks for the update. Our clerk just dropped off a check for $1000 and I let Jeremy know the total so we can
      get the rest of it in asap. I will touch base with you next week with an update as to when we will be in with the
      balance. Have a wonderful weekend.

      Best,
      Ed

      On Thu, May 12, 2016 at 12:06 PM, Catanzariti, Kelly <Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
      Catanariti@courts.phila.gov><mailto:Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
      Catanariti@courts.phila.gov>» wrote:
      Hi Ed,

      The notes are almost complete for Cw vs Pankey and the cost of the transcript is $3134.                   I know you had
      asked me to let you know as soon as I had an exact figure.
0033_Order_Denying_Motion_for_Extension_of_Time




                                                                       IN THE COURT OF COMMON PLEAS
                                                                  FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                                           CRIMINAL TRIAL DIVISION


                                                  COMMONWEALTH            OF                                    CP-51-CR-0004331-2014
                                                  PENNSYLVANIA                                                  CP-51-CR-0004332-2014


                                                         v.


                                                  MUNIR PANKERY                                                 Filed: June 9, 2016


                                                                                             ORDER


                                                         Presently before the Court is defendant's Nunc Pro Tune Petition for Time

                                                  Extension to File a l 925(b) Statement of Errors Complained of on Appeal, which

                                                  defendant filed on May 27, 2016. Because the Court has transmitted the record of this

                                                  case to the Superior Court, this Court lacks jurisdiction to address defendant's Petition.

                                                  Therefore, defendant's Motion is denied.




                                                                                                               BY THE COURT:




                                                                                                               GLENN B. BRONSON, J.



                                                                                                         CP-51-CR-0004332-2014 Comm v Pankery, Munir
                                                                                                            Order Denying Mohon for Extension of Time




                                                                                                              llll llll 11111111111111111
                                                                                                                      7458078131
Commonwealth v. Munir Pankery                                  CP-51-CR-0004331-2014
Type of Order: Order                                           CP-51-CR-0004332-2014


                                  PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing Court Order upon the person(s),
and in the manner indicated below, which service satisfies the requirements of
Pa.R.Crim.P.114:


Defense Counsel/Party:
                               Jeremy-Evan Alva, Esquire
                               1520 Locust St. Ste. 700
                               Philadelphia, PA 19102

Type of Service:        ( ) Personal (X) First Class Mail ( ) Other, please specify:


District Attorney:
                               Hugh Bums, Esquire
                               Office of the District Attorney
                               Three South Penn Square
                               Philadelphia, PA 19107-3499

Type of Service         () Personal (X) First Class Mail () Other, please specify:


Additional Party:


Type of Service:      ( ) Personal ( ) First Class Mail ( ) Other, please specify:




Dated: June 9, 2016




 onathon M. Frisby
Law Clerk to Hon. Gle
0034_Superior_Court_Order


                                                                                                                                       Filed 07/12/2016

                            COMMONWEALTHOF PENNSYLVANIA :                                             IN THE SUPERIOR COURT OF
                                                                                                             PENNSYLVANIA
                                                                            v.
                                                                                                           No. 946 EDA 2016
                            MUNIR PANKERY,                                                                 (C.P. Philadelphia County
                                                                            Appellant                     Nos. 51-CR-0004331-2014
                               CP-51-CR-0004332-2014 Comm. v, Pankery, Munir
                                                                                                              51-CR-0004332-2014)
                                            Superior Court Order




                                                                                         ORDER
                                    II I I I Ill7472279881
                                                  Ill I II I Ill I II Ill

                                 Upon consideration                              of the Appellant's       "Motion   For Remand For The
                            Purpose Of Filing A Concise Statement Of Matters Complained Of On Appeal,"
                            filed by Jeremy-Evan Alva, Esq., the motion and the certified                                       record are
                            hereby REMANDEDto the trial court for a period of sixty (60) days. Appellant
                            shall be permitted to file in the trial court and serve upon the trial judge a
                            Pa.R.A.P. 1925(b)                     statement            of errors      complained    of on appeal, within
                            twenty-one (21) days of the date that this Order is filed. The trial judge shall
                            prepare a supplemental opinion, pursuant to Pa.R.A.P. 1925(a), in response
                            to the Rule 1925(b)                         statement,        within      thirty   (30) days of the date the
                            statement           is received.                      The trial   court     shall include   the   Rule 1925(b)
                            statement and supplemental opinion in the certified record. The Prothonotary
                            of this Court is directed to provide copies of this Order to the trial court clerk
                            of courts and the Honorable Glenn B. Bronson.
                                    Upon consideration of the Appellant's "Application For Extension Of Time
                            To File Brief," filed by Jeremy-Evan Alva, Esq., the existing briefing schedule
                            is VACATED, to be re-established by the Prothonotary of this Court upon the
                            return of the certified record.


                                    Jurisdiction is retained.
                                                                                                                PER CURIAM
                              (True cos,y from record)




                            iiCle
                                         ~a,/.l,
                                   upervisor
                              SUPERIOR COURT OF PA.
          IN THE SUPERIOR      COURT OF PENNSYLVANIA

                         EASTERN    DISTRICT



                             946 EDA2016



              COMMONWEALTH         OF PENNSYLVANIA,

                                             Appellee,
                                   v.


                          MUNIR PANKERY,
                                            Appellant.


MOTION FOR REMAND FOR THE PURPOSE OF FILING A CONCISE
   STATEMENT OF MATTERS COMPLAINED OF ON APPEAL


           An Appeal From Judgment of Sentence entered by the
                       Honorable Glenn B. Bronson,
              Court of Common Pleas of Philadelphia County


Trial Court Docket Nos.: CP-51-CR-0004331-2014AND CP-51-CR-0004332-2014




                                        Submitted by:
                                        JEREMY-EVAN ALVA, ESQ.
                                        Identification No.: 90932
                                        Alva & Shuttleworth, LLC
                                        1520 Locust St., Suite 700
                                        Philadelphia, PA 19102
                                        Tel.: 215.665.1695
                                        Fax: 215.665.0183
                                        jalya@alvafirm.co~
        MOTION FOR REMAND FOR THE PURPOSE OF FILING A CONCISE
           STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

        AND NO\'v', Petitioner MUNIR PANKERY,              by and through his attorney, JEREivIY-

EVAN ALVA, ESQ. hereby applies to the Pennsylvania Superior Court to remand this case for the

purpose of filing a concise statement of matters complained of on appeal in accordance with

Pa.R.A.P. § l 925(b) and in support thereof avers the following:


    I. INTRODUCTION:SUMMARY OF THE PROCEDURAL POSTURE

        l.      On March 15, 2016 following a jury trial before the Honorable Glenn B. Bronson,

Appellant Munir Pankcry was convicted of one count of second degree murder; one count of

attempted murder, two counts of aggravated assault, two counts of carrying a firearm without a

license, and one count of possession of an instrument of crime. The court imposed the mandatory

life sentence without parole on the lead charge of second-degree murder and an aggregate sentence

of 26-52 years on all other charges.

        2.      The Defender's Association of Philadelphia filed a Notice of Appeal for both

dockets on March 23, 2016.

        3.     jererny-Evan Alva, Esq. was retained by the family of Appellant for the purpose of

filing post sentence motions and entered his appearance on March 25, 2016 on Docket Number

4332-2014 on March 25, 2016.

        4.      Counsel filed a motion for reconsideration of sentence on said docket on March 28.

2016, which was subsequently denied as a matter of law for lack of jurisdiction due to the Notice of

Appeal being filed by the Defender's Association of Philadelphia.

        5.      Undersigned counsel entered his appearance on docket 4331-2014 on March 31,

2016.
        6.      Undersigned counsel filed a motion for extension of time on April 12, 2016

requesting an additional thirty (30) days from counsel's receipt of the notes of testimony to file the

Concise Statement of Matters Complained of On Appeal with the trial court. (Attached herein as,

Exhibit "A")

        7.      A transcript order form was sent to the Stenographer, Kelly Caranzariti on April 13,

2016.

        8.      Undersigned counsel's office has had ongoing contact with Ms, Caranzariti regarding

these notes of testimony and was notified on May 12, 2016 that the notes of testimony were "almost

complete" and received a follow up email on May 23, 2016 asking how counsel would like the notes

printed, presumptively because they were now complete. (Attached herein as, Exhibit "B", email

thread between Ms. Caranzariti and Edward     J. Foster,   Esq.)

        9.      On May 24, 2016 the trial judge, the Honorable Glenn Bronson, filed an opinion

with the Superior Court stating that Appellant had failed to file a timely Statement of Matters

Complained of on Appeal, and that appellate issues should then be deemed waived.

        10.     Undersigned    counsel received the notes of testimony on May 27, 2016 and

immediately began to ascertain the matters that will be complained of on appeal.

        11.     Undersigned counsel immediately filed a 1111nc pro lime, Motion for an Extension of

Time to file a Concise Statement of Matters Complained of on Appeal on May 27, 2016, which was

denied on June 9, 2016 for a lack of jurisdiction.

        12.     Undersigned counsel is asking that this Honorable Court remand for the purposes of

filing a Concise Statement of Matters Complained of on Appeal, thereby granting leave to allow

compliance with § 1925(b).
         13.   Undersigned counsel will be prepared to file a rule § 1925 Concise Statement of

Matters Complained of on Appeal immediately upon being granted leave to do so by this Honorable

Court.

         14.   Granting this request will not prejudice this Honorable Court, the Commonwealth,

or the Appellee,

         15.   Granting this request will be in the interest of justice and it will help to ensure

competent representation of the parties by counsel.

               WHEREFORE,       Appellant respectfully requests this Honorable Court to remand

this case to allow undersigned     counsel to file the 1925(b) Concise Statement       of Matters

Complained of on Appeal.


                                             Respectfully submitted,




                                             JEREMY-EVANALVA, ESQ.
                                             PA Attorney ID: 90932
                                             Alva & Shuttleworth, LLC
                                              1520 Locust St.
                                             Suite 700
                                             Philadelphia, PA 19103
                                              (215) 665-1695


                                              Counsel for Appellant
EXHIBIT 'A'
                     IN THE FIRST JUDICIAL DISTRICT OF PENNSYL v ANIA
                     COURT OF COMMON PLEAS, PHILADELPHA COUNTY
                                                                            FU
                                                                            A
                                                                               u= 12·  r"~i)
                                                                                  ---- -:=::l
                                                                                            1


                           TRIAL DIVISION-CRIMINAL SECTION                       PR l 2 2016
                                                                         CriminalA
                                                                  First Judicialrf.ea!s Unit
COMMONWEALTH OF PENNSYLv ANIA                            COURT OF COMMoN1't'fkg,t of PA
                                                         TRIAL DIVISION
                v.                                       CRIMINAL SECTION

MUNIR PANKERY                                            CP·S l..CR-0004331·2014
                                                         CP-51..CR-0004332·2014

                                    NOTICE OF HEARING

       AND NOW, this __         day of               2016, upon consideration of the annexed

Petition for Extension of Time, on behalf of Appellant, MUNIR PANKERY, it is hereby

ORDERED and DECREED that a hearing on said petition be heard on the                      day of

______ , 2016 at         ___    , in Courtroom   __ , Criminal Justice Center,     Philadelphia,

Pennsylvania.




                                                  BY THE COURT:




                                                  Glenn B. Bronson, J.
                      IN THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                      COURT OF COMMON PLEAS, PHILADELPHA COUNTY
                              TRIAL DIVISION-CRIMINAL SECITON


COMMONWFALTH              OF PENNSYLVANIA                     COURT OF COMMON PLEAS
                                                              TRIAL DIVISION
                 v.                                           CRIMINAL SECTION

MUNIR PANKERY                                                 CP-5 l-CR-0004331-2014
                                                              CP-5 l-CR-0004332-2014

                                             ORDER

         AND NOW, to wit, this               day of-----------------'             2016, it is hereby

ORDERED and DECREED that Appellant Munir Pankerv's Petition for Extension of Time to

File a 1925(b) Statement of Errors Complained of on Appeal is GRANTED. Appellant is given an

additional thirty (30) days from the receipt of the notes of testimony to file a 1925(b) Statement.

Accordingly, Appellant must file a 1925(b) Statement on or before the                        day of

-------------'                 2016.




                                                              Glenn B. Bronson,   J.
ALVA & SHUTILEWORTH, LLC
BY: JEREMY-EVANALVA, ESQ                                      ATIORNEY FOR PETITIONER
IDENITFICATION NO. 90932
1520 LOCUST ST., SUITE 700
PHILADELPHIA, PA 19102
215-665·1695FAX: 665-0183

COMMONWEALTH OF PENNSYLVANIA                                  COURT OF CO:MMONPLEAS
                                                              TRIAL DIVISION
                v.                                            CRIMINAL SECTION

MUNIRPANKERY                                                  CP-51-CR-0004331·2014
                                                              CP-51.CR-0004332·2014

             PETITION FOR TIME EXTENSION TO FILE A 1925(b) STATEMENT
                      OF ERRORS COMPLAINED OF ON APPEAL

TO THE HONORABLE JUDGE GLENN B. BRONSON OF THE SAID COURT:

       Appellant, Munir Pankery, by and through his attorney, Jeremy-Evan Alva, Esquire

respectfully requests that an extension of time be granted to file a concise Statement of Errors

Complained of on Appeal pursuant to Pennsylvania Rules of Appellate Procedure 1925(b) ("the

1925(b) statement"), and in support thereof avers the following:

        1.      On March 15, 2016, Appellant was sentenced by the Honorable                Glenn B.

Bronson.

        2.      On March 23, 2016, Appellant filed a Notice of Appeal to the Superior Court of

Pennsylvania.

        3.      On March 24, 2016, this Court Ordered that Appellant file the 1925(b) statement

by April 14, 2016.

        4.      Undersigned    counsel   has not yet received the transcript       from Appellant's

sentencing hearing.
       5.      Because undersigned counsel for Appellant will not be fully aware of the exact

nature of the issues to be complained of until the record is more fully reviewed, Appellant is

requesting a reasonable amount of time for him to receive and review the record.

       WHEREFORE, Appellant respectfully requests an order for extension of time to file the

1925(b) statement.


                                                    Respectfully Submitted,
ALVA & SHUTILEWORTH, LLC
BY: JEREMY-EVANALVA, ESQ                                     ATIORNEY FOR PETITIONER
IDENTIFICATION NO. 90932
1520 LOCUST ST., SUITE 700
PHILADELPIDA, PA 19102
215-665-1695FAX: 665-0183

COMMONWEALTH OF PENNSYLVANIA                                 COURT OF COMMON PLEAS
                                                             TRIAL DMSION
               v.                                            CRIMINAL SECTION

MUNIR PANKERY                                                CP-51.CR-0004331-2014
                                                             CP-51.CR-0004332-2014


                                  CERTIFICATE OF SERVICE

        I, Jeremy-Evan Alva, Esq., hereby certify that a true and correct copy of the foregoing was

served upon the following on today's date:

                          Office of the District Attorney of Philadelphia
                                      ADA Hugh Burns, Esq.
                                     Three South Penn Square
                                      Philadelphia, PA 19107
                                         (via hand delivery)



                                                      . _/~#
                                               ~MY-EVAN                AL~Q.
DATE:   l/h1 )J h
EXHIBIT 'B'
S,'2v12016                                                 Alva and Shultleworth, LLC Mail - Re: Munir Pankery Notes




                                                                                                     Edward Foster <efoster@alvafirm.com>



   Re: Munir Pankery Notes
  Catanzariti, Kelly <Kelly.Catanariti@courts.phila.gov>                                                               Tue, May 24, 2016 at 9:32 AM
  To: Edward Foster <efoster@alvafirm.com>

      Hi Ed!

      Okay, great! When you have an idea on what day you'll be sending someone over, just let me know a day in
      advance. The trial is over 1500 pages and I just want to give the copy center notice so they can be printed,
      so your courier doesn't have to wait while they're printing them.

      Have a good day!!

      Sent from my iPhone

      On May 24, 2016, at 7:44 AM, Edward Foster <efoster@alvafirm.com<mailto:efoster@alvafirm.com»                                       wrote:

      Kelly,

      I let Jeremy know the notes are ready. We've reached out to the family to see when they will be in with the
      balance. I will let you know as soon as that happens, hopefully by the end of the week.

      Ed

      On Mon, May 23, 2016 at 9:36 AM, Catanzariti, Kelly <Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
      Catanariti@courts.phila.gov>> wrote:
      Hi Ed!

      I wanted to follow-up with you for the balance of the Pankey notes.

      Also, I wanted to know if you want me to printout a full size copy of the trial or if you want minuscripts or both.
      Just let me know and I can have them ready for pickup at the copy center.

      Have a great day!
      Thanks!

      Sent from my iPhone

      On May 12, 2016, at 12:49 PM, Edward Foster <efoster@alvafirm.com<mailto:efoster@alvafirm.com>
      <mailto:efoster@alvafirm.com<mailto:efoster@alvafirm.com>>> wrote:

      Hi Kelly,

      Thanks for the update. Our clerk just dropped off a check for $1000 and I let Jeremy know the total so we can
      get the rest of it in asap. I will touch base with you next week with an update as to when we will be in with the
      balance. Have a wonderful weekend.

      Best,
      Ed

      On Thu, May 12, 2016 at 12:06 PM, Catanzariti, Kelly <Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
      Catanariti@cou rts.phila. gov><mailto:Kelly.Catanariti@courts. phila.gov<mailto: Kelly.
      Catanariti@courts.phila.gov>>> wrote:
      Hi Ed,

      The notes are almost complete for Cw vs Pankey and the cost of the transcript is $3134. I know you had
      ~c,l,Qn   m"' tn 1.,.t \/n1, lrnnu,   ~c, c,nnn   ~c, I h~rl ~n QV~rt    fin11rC1
5127/2016                                   Alva and Shuttleworth, LLC Mail • Re: Munir Pankery Notes                  '.
     Kelly

     Sent from my iPhone

     On May 10, 2016, at 11 :57 AM, Edward Foster <efoster@alvafirm.com<mailto:efoster@alvafirm.com>
     <mailto:efoster@alvafirm.com<mailto:efoster@alvafirm.com>><mailto:efoster@alvafirm.com<mailto:efoste
     r@alvafirm.com><mailto:efoster@alvafirm.com<mailto:efoster@alvafirm.com>>>> wrote:

    Hi Kelly,
    We are still waiting on the family to come in with the deposit. I'll email you once that happens, I believe it's
    supposed to be this week.

     Edward J. Foster, Esq.


    This communication, together with any attachments hereto or links contained herein, is for the sole use of the
    intended recipient(s) and may contain information that is confidential or legally protected. If you are not the
    intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or
    use of this communication isSTRICTLY PROHIBITED. If you have received this communication in error,
    please notify the sender immediately by return e-mail message and delete the original and all copies of the
    communication, along with any attachments hereto or links herein, from your system.

    On May 10, 2016, at 11 :52 AM, Catanzariti, Kelly <Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
    Catanariti@courts.phila.gov><mailto:Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
    Catanariti@courts.phila.gov>><mailto:Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
    Catanariti@courts.phila.gov><mailto:Kelly.Catanariti@courts.phila.gov<mailto:Kelly.
    Catanariti@courts.phila.gov>>>> wrote:

     Hi Ed,

    I was just following up on our last email from below. I haven't received the deposit and the notes are almost
    complete. I just wanted to check and see if you received the deposit yet from the family.

    Thanks!
    Kelly

     Sent from my iPhone

     On Apr 14, 2016, at 2:15 PM, Edward Foster <efoster@alvafirm.com<mailto:efoster@alvafirm.com><mailto:ef
     oster@alvafirm.com<mailto:efoster@alvafirm.com>><mailto:efoster@alvafirm.com<mailto:efoste
     r@alvafirm.com><mailto:efoster@alvafirm.com<mailto:efoster@alvafirm.com>>><mailto:efoster
     @alvafirm.com<mailto:efoster@alvafirm.com><mailto:efoster@alvafirm.com<mailto:efoster@
     alvafirm.com>>>> wrote:

     Kelly,

     I talked to Jeremy and we don't need the Munir Pankery jury selection notes, but do need the motion to
     suppress. We've reached out to the family to let them know the cost and expect them in the office Monday
     with the deposit. I will touch base with you as soon as we can get that check cut and sent over to you.


     Edward J. Foster, Esq.
     Alva & Shuttleworth, LLC
     1520 Locust St.
     Suite 700
     Philadelphia, PA 19102
     (215) 665-1695<tel:%28215%29%20665-1695><te1:%28215%29%20665-1695>                                 - Phone
     (215) 665-0183<tel:%28215%29%20665-0183><tel:%28215%29%20665-0183>                                 - Fax
                  v.                                     No.




                                         PROOF OF SERVICE




    was served on the following:

4 o J4      117 /,     &1/"U15 I   t   5'/   e
                                                      ;./,,,,. . (~,,          &_,,,.__so-i.
3 5.        f~vi 57.                                  CJQ t    t(oc,r.-i   /   lj 6   7
f   hi /a1 ffl- (7/0?                                /Jt;, /14 f/ /-7-         I   7 "'?
                                                                                                                                                         FILED
0035_Statement_of_Matters_Complained_on_Appeal
                                                                                                                                               07/18/2016 07:35:19 AM


                                                                                                                                                        By: T. COS




                                                               IN THE FIRST JUDICIAL DISTRICT OF PENNASYLV ANIA
                                                              COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                                                      TRIAL DIVISION - CRIMINAL SECTION


                                                 COMMONWEATLH OF PENNSYLVANIA                                         CP-51-CR-0004331-2014
                                                                                                                      CP-51-CR-0004332-2014

                                                               v.


                                                 MUNIR PANKERY


                                                        CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
                                                                      PURSUANT TO PA.R.A.P. 1925(b)



                                                        Appellant, tvIUNIR PANKERY, by and through undersigned counsel, JEREMY-EVAN

                                                 AL VA, ESQ., hereby files the following statement of errors complained of on appeal, pursuant to

                                                 Pa.R.A.P. 1925(b):

                                                        1.     The trial court erred in granting the Commonwealth's 404(b) motion and allowing

                                                               evidence of a robbery, which was not consolidated, to be admitted into evidence to

                                                                show "res gestae" of the case and investigation.

                                                        2.     The trial court erred in denying Mr. Pankery's motion to suppress statements based

                                                                on involuntariness. This occurred after Appellant testified that he was going through

                                                                withdrawal, an expert on toxicology testified on the effects of withdrawal, and

                                                                evidence of treatment, for withdrawal, immediately upon admission to the prison

                                                                took place.
3.   The trial court erred by denying   Appellant's   motion   to preclude the preliminary

     hearing testimony of Corey Wright. Appellant did not have a full and fair

     opportunity to cross examine Mr. Wright regarding video evidence, that was only

     passed to defense counsel after the preliminary hearing, which would substantially

     impeached his preliminary hearing testimony and statements to police.




                                   Respectfully submitted,
                                      PROOF OF SERVICE

        I hereby certify that I am this day serving the foregoing 1925(b) Statement upon the persons

and in the manner indicated below which service satisfies the requirements of Pa.R.A.P. 122:

Hon. Glenn B. Bronson
Juanita Kidd Stout Center for Criminal Justice
Room 1407
1301 Filbert St.
Philadelphia, PA 19107

Office of the District Attorney of Philadelphia County
Attn.: Appeals Unit
Three South Penn Center
Philadelphia, PA 19107



Type of Service: Hand Delivery




                                                           -EVAN ALVA, ESQ.
                                                    t ·ney ID# 090932
                                                     /a & Shuttleworth, LLC
                                                  520 Locust St.
                                                 Suite 700
                                                 Philadelphia, PA 19102
                                                 215-665-1695
0036_Opinion


                                                                                                                        FILED
                                                  IN THE COURT OF COMMON PLEAS                                        SEP 2 3 2016
                                             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                 Appeals/Post Ti'lal
                                                      CRIMINAL TRIAL DIVISION                                    Office of Judicial Recorc

                        COMMONWEALTH OF                                                       CP-51-CR-0004331-2014
                        PENNSYLVANIA   CP-51-CR-0004332-2014 Comm. v. Pankery, Munir          CP-51-CR-0004332-2014
                                                         Opinion



                                v.
                                                          1111111111111111111111111
                        MUNIR PANKERY                            7503603571

                                                           SUPPLEMENTAL OPINION

                        BRONSON,J.                                                             September 23, 2016



                        On March 15, 2016, following a jury trial before this Court, defendant Munir Pankey1

               was convicted at docket number CP-51-CR-0004331-2014 of one count each of second degree

               murder (18 Pa.C.S. § 2502(b)), carrying a firearm without a license (18 Pa.C.S. § 6106), and

               possessing an instrument of crime (18 Pa.C.S. § 907).2 At docket number CP-51-CR-0004332-

               2014, defendant was convicted of one count each of attempted murder (18 Pa.C.S. §§ 901 &

               2502(a)), aggravated assault (18 Pa.C.S. § 2702(a)(l)), and carrying a firearm without a license

               (18 Pa.C.S. 6106). The Court immediately imposed the mandatory life sentence on the second

               degree murder charge (18 Pa.C.S. § 1102(b)), and a consecutive aggregate sentence on the

               remaining charges of 20-40 years incarceration.3

                        Defendant filed a timely notice of appeal on March 23, 2016. On March 24, 2016, the

               Court ordered defendant to file a Rule 1925(b) statement of errors complained of on appeal.

               Jeremy-Evan Alva, Esquire, entered his appearance on behalf of defendant on March 25, 2016,


               I
                 While the caption in this matter spells defendant's last name as Pankery, defendant's last name is Pankey. N.T.
               3/7/16 at 5-6.
               2
                 Defendant was found not guilty of first degree murder.
               3
                 Following sentencing, the Commonwealth moved to nollepros all charges at docket number CP-51-CR-0004330-
               2014, which the Court granted. N.T. 3/15/16 at 96-97.
              . --·--      ~~---·-''---·----·   . ------ ''   • ·-·····----·---·'.   .•• · -- ._. ·-.   .   _.:..___,:   ,.;."~;- .• --,····-:..:......:.. ..:._..:........: . .:..-'.: ...:.'.1;.:.......::...:...i.~--:.-   ,: ::. ..;._:_._....:.;.._:...:.   ·· .. - .. · .   ._, -·. •.. --···.·   .,.-,.+ ..· .. ··._. '· :   ,




                          and filed a post-sentence motion on March 28, 2016. On March 29, 2016, the Court denied

                          defendant's post-sentence motion on the ground that the Court lacked jurisdiction due to the

                      previously filed notice of appeal. On April 13, 2016, the Court granted a defense motion to

                          extend the period of time to file a 1925(b) Statement. On May 24, 2016, after defendant failed to

                      provide the ordered 1925(b) statement by the extended due date, the Court filed an opinion

                          finding that all of defendant's claims had been waived. On July 12, 2016, the Superior Court

                          remanded this matter for defendant to file a 1925(b) statement and for this Court to file a

                          supplemental opinion.

                                         Defendant has now appealed from the judgment of sentence entered by the Court on the

                          grounds that the trial court erred by: 1) denying defendant's motion to suppress his statements

                      made to police; 2) granting the Commonwealth's 404(b) motion to allow evidence of an

                      uncharged robbery to be admitted at trial; and 3) denying defendant's motion to preclude the

                      preliminary hearing testimony of Corey Wright.4 Concise Statement of Matters Complained of

                      on Appeal ("Statement of Errors") at ,r,r 1-3. For the reasons set forth below, defendant's claims

                      are without merit and the judgment of sentence should be affirmed.

                                                                                                                                     I. FACTUAL BACKGROUND

                                         At the suppression hearing, the Commonwealth presented the testimony of Philadelphia

                      Police Detectives Robert Daly and John Harkins, and Philadelphia Police Correctional Officer

                      Sheila Grant-Covey. Defendant testified on his own behalf and presented the testimony of Dr.

                      Lawrence Guzzardi. The following facts were established at the hearing. 5




                     4
                       Defendant's claims have been reordered for ease of analysis.
                     5
                       Because all of defendant's claims of error pertain to the Court's rulings on pre-trial motions, the Court has outlined
                     the facts from the pretrial record. See In re L.J., 79 A.3d 1073, 1085 (Pa. 2013) (appellate review ofa suppression
                     order is limited to the suppression record).




                                                                                                                                                                                                                2

   --~.
-.-.      -·~··--------     ·--·
·····-·-·····"····--.!.   _. ·--_..,, .. ~···-···--   ,   _: .. : ,_..:.:... __ .. _   . : ,.: . ~~-~-~ .. :.,,::;.:. ..;.;.;... .. :.\,".·.   :.:. . ,.   ... - ·--···   ;~·.·,   ',.,. .:.~·"·-~   .. :·   ·· . ,_· __ .. :.:.:.·,




                                               On December 27, 2013, Detective Robert Daly became the assigned detective in a

                          robbery that occurred outside the Studio 7 Bar, in the late evening hours of that day. N.T. 3/7/16

                          at 30. The robbery victim, Kamar Johnson, identified defendant as the robber from a photo array

                          on December 29, 2013. N.T. 3/7/16 at 31-32, 54. Daly was also assigned a double shooting case

                          that occurred around the comer from the bar on the night of December 29, 2013. N.T. 3/7/16 at

                          30. At approximately 2:00 a.m. on the morning of December 30, 2013, Daly went to the Studio

                          7 Bar to retrieve any possible video surveillance footage pertaining to the shooting case. N.T.

                          3/7/16 at 32-33. At that time, Daly observed defendant by the bar and arrested him for the

                          robbery. N.T. 3/7/16 at 33-34.

                                                Daly turned defendant over to other police officers to be transported and was about to go

                          back to retrieving the shooting video when he received a telephone call advising him that one of

                          the shooting victims, Corey Wright, had told another detective that "Munir" had shot him.6 N.T.

                          3/7/16 at 34-35. Daly then took a photo array to Wright's hospital room at approximately 2:45

                          a.m., where Wright identified defendant as the shooter. N.T. 3/7/16 at 35. Daly then executed a

                          search warrant at defendant's home at approximately 9:00 that morning and recovered a firearm

                          and clothing that appeared, from surveillance video, to have been worn by the shooter. N.T.

                          3/7/2016 at 36.                                   After executing the search warrant, Daly returned to the police district and went

                          to the holding cell to speak with defendant. However, defendant stated that he wanted to speak

                          with an attorney, and therefore, no statement was taken. N.T. 3/7/16 at 36-37, 60-61.

                                               While Daly was processing evidence at approximately 11: 15 a.m. that same morning,

                          defendant knocked on the window of the holding cell where he was being held and informed

                          Daly that he would "tell [Daly] what happened." N.T. 3/7/16 at 38. Daly then took defendant

                          into an office where defendant waived his Miranda rights and admitted to participating in both

                          6
                              As stated above, defendant's first name is "Munir".




                                                                                                                                                                                         3
---·-----· ..···---   .. ·-~----····----   ·----,....   .   ···-   •   ·.....:...   ···-·-··--··   .••   ·._.   ·-·····   __   ,   .'...c.....'.: .. ·   ····-··....:...;, __   .   --··--------··   ., . .   .   ·_··   -···--·-   ·-·-"'·   ----·-




     the robbery and the double shooting ("first statement"). N.T. 3/7/16 at 38-39. Defendant also

     made statements concerning a homicide that occurred around the comer from the Studio 7 Bar

     shortly after the robbery, but before the double shooting. N.T. 3/7/16 at 141-143. After being

     interviewed by Daly, defendant was interviewed by detectives Antonini and Fife regarding other

     unrelated criminal matters that defendant had mentioned in his first statement, and provided

     another statement ("second statement") at approximately 6:10 p.m. that same day. N.T. 3/7/16 at

     51-52, 80-81. Police again informed defendant of his Miranda rights prior to his second

     statement. Commonwealth Exhibit 90.

                         At approximately 12:30 a.m., on December 31, 2013, defendant was brought to an

     interview room in the Homicide Division of the police department. There he was interviewed by

    Detective John Harkins in connection with the homicide that defendant referenced in his first

    statement. N.T. 3/7/16 at 83-84, 141-143. Harkins informed defendant of his Miranda rights

    prior to this discussion, and defendant agreed to speak with Harkins. N.T. 3/7/16 at 85. At that

    time, defendant talked with the detectives regarding the homicide, indicating that he was present,

   but that someone else had shot and killed the victim. N.T. 3/7/16 at 86-88. Defendant also drew

   a diagram of the crime scene. N.T. 3/7/16 at 87, 90-91. After Harkins confronted defendant

   with inconsistencies between his version of the incident and the evidence seen in video

   surveillance tapes, defendant stated that he would not make a formal statement. N.T. 3/7/16 at

   88. Harkins summarized his discussion with defendant in a written activity sheet ("third

  statement"). N.T. 3/7/16 at 88, 91.




                                                                                                                                                                        4
-   - ··-·--   .. ···-···---      . --·-·-    ..   ·-   -·-·'"'" __   __;_   ····-·:   .•.. _   ,   .   ~   ....__·
                                                                                                                  . . -~····· .. .;... __ :.:...:   .::;.   :., •. __ .~:_..:.:.c..::.::.'   ..•.   ·   '.:. ·, .-.:.:.L...-·   :_ ,: __ .   "-.   :-   . ··---,. ·.. :.. · . .:....   ,   .:.·-·· ·. ·- ·. __..:;:~~· •.:.:.:~·---.:_:.:.....--.-   :.,· •.. ,;.,;;_,~:· ..




                                                                                                                                               II. DISCUSSION

                                             A. Motion to SuppressStatements

                                             Defendant asserts that the court "erred in denying [defendant's] motion to suppress

                               statements based on involuntariness." Statement of Errors at, 2. In particular, defendant

                               contends that his statements were involuntary since he was going through the effects of drug

                               withdrawal at the time the statements were made. Id. This claim is without merit.

                                             In reviewing a denial of a motion to suppress, the reviewing court must determine if "the

                               suppression court's factual findings are supported by the record and whether the legal

                               conclusions drawn from those facts are correct." Commonwealth v. Hoppart, 39 A.3d 358, 361

                               (Pa. Super. 2012). The reviewing court may only consider evidence submitted at a suppression

                               hearing. In re L.J, 79 A.3d at 1085. Further, a reviewing court may only consider the evidence

                               presented by the Commonwealth and any uncontradicted evidence of the defendant.

                               Commonwealth v. Johnson, 107 A.3d 54, 93 (Pa. 2014). "[T]he standard for determining

                               whether a statement is voluntary is based on the totality of the circumstances and considers,

                               among other things, whether the defendant was coerced or manipulated or promised something

                               in exchange for his confession; essentially ... whether the defendant freely made the decision to

                               give the statement." Commonwealth v. Ogrod, 839 A.2d 294, 320 (Pa. 2003) (citing

                               Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998)). The totality of the circumstances

                               includes defendant's mental and physical condition . .Johnson, I 07 A.3d at 93.

                                             In the case at bar, defendant argued at the suppression hearing that due to his

                               imprisonment, defendant abruptly stopped taking Xanax, Percocets, and other drugs, and was

                               being medicated for detoxification at the prison. According to defendant, because the statements

                               were taken while defendant was detoxifying from these drugs, he was in a coercive atmosphere




                                                                                                                                                                      5
•W•"•••-··----••••-••-   ·••   •o•• ··------     •   •   ~·-.:-:-< -- '   ··.   • '••.-,•--.,--'--'._''
                                                                                                     .:.'.•.. , .. ·:'.·:.,.   •-•- • .,'·,_,,,· ,; • ',. .·: •' •'   •'   , ·., __ ,· ·. '• ··:.·: '•-•-----'-----'--·,_,._.,', ,' ·:.-' -- ·, ·   ,,·.:   ' ,' .·. '   0   '",':.'.   -·-·
                                                                                                                                                                                                                                                                                           -•••·--   •   --   .. --· -····   •--·-'---   .. :




                                               sufficient to render his statements involuntary. N.T. 3/7/16 at 22-23. Defendant further argued

                                               that the police delayed in getting defendant to a preliminary arraignment, which exacerbated the

                                               coercive atmosphere. Id.

                                                                  Following the suppression hearing, the Court rendered findings of fact and conclusions of

                                               law. N.T. 3/8/16 at 11-14. The Court found that defendant was interviewed a total of three times

                                               while in custody awaiting his preliminary arraignment. N.T. 3/8/16 at 12-13. The Court found

                                               that in each of these interviews, defendant was advised of his Miranda rights, and that in each

                                               instance defendant knowingly and voluntarily waived those rights. This conclusion was

                                               supported by the testimony of Detectives Daly and Harkins, as well as the written waivers

                                               defendant signed prior to the interviews. N.T. 3/7/16 at 39, 41-44, 51-52, 85; 3/8/16 at 14;

                                               Commonwealth Exhibits C-89-91. The Court further found that at the time he gave the

                                               statements, defendant did not appear to be under the influence of drugs or suffering from

                                           symptoms of drug withdrawal, and did not inform the investigating detectives that he was under

                                           any form of medical distress. This finding was similarly founded upon the credible testimony of

                                           Detectives Daly and Harkins. N.T. 3/7/16 at 44, 49-50, 67-68, 72-74, 91-92; 3/8/16 at 13. While

                                          defendant called a toxicologist to testify to the effects of drug withdrawal, the expert relied on

                                          the history of drug use given to him by the defendant, and acknowledged that reactions to drug

                                          use and withdrawal are highly variable. N. T. 3/7 /16 at 224-225, 231. The Court did not find

                                          defendant to be credible. Moreover, defendant acknowledged that on two occasions in the same

                                         month as the interviews here at issue, he voluntarily stopped taking all drugs in order to pass

                                         urine tests given by his probation officer, without seeking any medical attention for any

                                        withdrawal symptoms. N.T. 3/7/16 at 177-178.




                                                                                                                                                                                                        6
 ··--,---'-~---~.:---...:....-'---....:...---~   .-h.•. ::.·~: . . . :. ._·   -·   ,·_...;_~·-····--·-·.   --   ·-'--~:.,.~~---~~·   _. , .   . __ :.   -_.-:,.·-   ·_:.·   ·-·.:-·   '·-.:   ··.,···,.·.   ;·· ~- ..   ·.·.·."•   .__ : ·   ::· · . .-- .·.   ·· ..   :   .   ..·   .:   ·.< -· ~-·'· .. ·.· ..•. ·-   d:~.:·,.,   '. _, '·· .· .·_,_. __.   :., . ."




                                 Accordingly, the record fully supports the finding of the Court that under the totality of

the circumstances, defendant's symptoms of drug withdrawal did not render his statements to be

the product of unlawful police coercion. To the contrary, the record established that defendant

knowingly and intentionally waived his rights under Miranda prior to each statement that he

gave, and defendant freely made the decision to give each of the statements. N.T. 3/8/16 at 14.

Therefore, the Court properly found that each statement was voluntarily given, and properly

denied defendant's motion to suppress them. No relief is due.

                                 B. 404(b) Motion to Admit Evidence of Uncharged Robbery

                                 Defendant also claims that the court "erred in granting the Commonwealth's 404(b)

motion and allowing evidence of a robbery, which was not consolidated, to be admitted into

evidence to show 'res gestae' of the case and investigation." Statement of Errors at ,i l. This

claim is without merit.

                                 The law regarding the admissibility of uncharged criminal conduct in a criminal trial is

well-established. While evidence of other uncharged criminal acts is not admissible to prove bad

character or criminal propensity, it may be admitted for other purposes where the probative value

of the evidence outweighs the potential for prejudice. Pa.R.Evid. 404(b); see Commonwealth v.

Williams, 896 A.2d 523, 539 (Pa. 2006). Under the "res gestae exception" to Rule 404(b),

uncharged acts are admissible if they are part of the sequence of events leading up to the charged

offense and are necessary for the complete story to be told to the fact-finder. Commonwealthv.

Williams, 896 A.2d 523, 539 (Pa. 2006).                                                                                                                 The admission of other bad acts will only be reversed

upon a showing of an abuse of discretion by the trial court. Commonwealth v. Chmiel, 889 A.2d

501, 534 (Pa. 2005) (citing Commonwealth v. Simmons, 662 A.2d 621, 635 (Pa. 1995)).




                                                                                                                                                                            7
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                                                        Prior to trial, the Commonwealth moved to admit evidence that defendant and an

                                    unknown individual robbed Kamar Johnson outside the Studio 7 Bar on December 27, 2013 at

                                    approximately 11 :45 p.m. According to the Commonwealth's motion, during the course of the

                                    robbery, Johnson felt a solid metal object in the pocket of one of his attackers and heard

                                    defendant repeatedly say "I am going to shoot you." Motion to Admit Evidence of Prior Bad Act

                                    ("Motion to Admit") at 11 1-2. The Commonwealth argued that this evidence was necessary to

                                    prove that defendant shot and killed Anthony Hinds approximately one hour later, at 12:45 a.m.

                                    on December 28, 2013, around the comer from the bar, and that defendant shot two other victims

                                    the next day, again in close proximity to the bar. Motion to Admit at 1i-l 4-14. The

                                    Commonwealth further argued that the evidence of the robbery would establish defendant's

                                    identity, possession of a weapon used in both shootings, and history of the case, including

                                    defendant's subsequent arrest and statements. Motion to Admit at ,r,r 15-19. Defendant argued

                                    that admission of the robbery evidence would result in prejudice that would far outweigh its

                                    probative value. N.T. 3/7/16 at 328-330.

                                                        Here, the admission of defendant's actions in connection with the Johnson robbery was

                                    necessary for a coherent explanation of events that lead to defendant's arrest for the homicide

                                    and the later double shooting. All three events occurred within a two day period in the vicinity

                                    of the Studio 7 bar. Moreover, the investigations of all three events were inextricably

                                    intertwined. Detective Daly arrested defendant for the robbery while going to retrieve video

                                    surveillance for the double shooting. N.T. 3/7/16 at 32-33. When defendant gave the first

                                    statement, after knocking on the window of his holding cell and asking to speak to Daly, he

                                    confessed to both the robbery and the double shooting. N.T. 3/7/16 at 38-39. During that same

                                    statement, he was questioned about the homicide, since the weapon found in the search of his




                                                                                                                                                                                                           8
-·····---·-·   ·n.-~   ·" .. -.··   ••..   --~·   · ••• :·   -   ;   ·."~·   ..••   ·.·   ·.   · ..   ··-··   ·: •••. · •. ."··   ••   -   .   ·-··---·   .• '.:   __   --·.   :.   ··--·•···--   .,-   ········'"-·'   ..   ·   ·· .. :   ·_.,   ••• --·.~·.   -   •.• ·.   · ·-·.L-~·.:..::...._••...c..:.·   ~~~   ·- .. · ·-··--- ··· .. ·.: .•.




                                                  home during the robbery investigation was the same caliber as the murder weapon. N.T. 3/7/16

                                                  at 141-142. Based on that statement, and the seizure of the weapon, defendant was sent to

                                                  homicide where the third statement was taken in which he admitted being present when the

                                                  homicide occurred. N.T. 3/7/16 at 83-88, 143. Accordingly, it was essential to inform the jury

                                                  of defendant's commission of the robbery in order to explain the investigation that led to his

                                                  arrest for the homicide and the shootings.

                                                                     Because the robbery evidence was necessary to show the history of the investigation of

                                                  the homicide and shootings, the Court properly found that its probative value far exceeded the

                                                  potential for unfair prejudice. The evidence was, therefore, properly admitted. Williams, 896

                                                  A.2d at 539. No relief is due.

                                                                     C. Admission of Preliminary Hearing Testimony

                                                                     Finally, defendant avers that the Court erred by denying defendant's "motion to preclude

                                                  the preliminary hearing testimony of Cory Wright. [Defendant] did not have a full and fair

                                                  opportunity to cross examine Mr. Wright regarding video evidence, that was only passed to

                                                  defense counsel after the preliminary hearing, which would substantially impeached his

                                                  preliminary hearing testimony and statements to police." Statement of Errors at 13. This claim

                                                  is without merit.

                                                                     Prior to trial, defendant sought to preclude the preliminary hearing testimony of Cory

                                                  Wright, one of the two victims in the charged double shooting that followed the homicide.

                                                  Wright identified defendant as the person who shot him in a statement to police, and at the

                                                  preliminary hearing, but died prior to trial. Defendant argued that, as the Commonwealth did not

                                                  pass relevant impeachment evidence to defendant prior to the preliminary hearing, defendant did

                                                  not have a full and fair opportunity to cross-examine Wright.




                                                                                                                                                                                                                                                  9
•·--·----·---·-·"··~---···•·····-·····--·-···•   •··-··•••_-   -·   ...........•   ·-_,   ..   ,   .   -~' ..... -   . ,   ...   -----   , .. , ... ··.-v·.·    · ... ;·--,·•   .. ·.::·· ... ----~~--.   ··-·   -·   .   , ·-'·-·-·-   :· .:.   : ' ..   ·+




                                 Under Pennsylvania Rule of Evidence 804(b)(l), where a witness is unavailable to

  testify, his testimony at a prior hearing may be admitted in evidence as an exception to the

  hearsay rule, provided that the party against whom the testimony is offered "had an adequate

  opportunity and similar motive to develop the testimony .... " Pa.R.E. 804(b)(l).                                                                                                                                                                            In the context

  of a criminal trial, so long as the witness is unavailable, that witness's prior testimony at a

  preliminary hearing is admissible under this exception to the hearsay rule, and satisfies the

  requirements of the Confrontation Clause, so long as defense counsel had a full and fair

  opportunity to cross-examine the witness at the preliminary hearing. See Commonwealth v.

  Leak, 22 A.3d 1036, 1045 (Pa. Super. 2011 ). Where a defendant asserts that he did not have a

  full and fair opportunity to cross-examine the witness at the preliminary hearing, he must

  establish that he was deprived of "vital impeachment evidence" at or before the time of the

  preliminary hearing. Id at 1044-1045. "The Commonwealth may not be deprived of its ability to

  present inculpatory evidence at trial merely because the defendant, despite having the

  opportunity to do so, did not cross-examine the witness at the preliminary hearing as extensively

  as he might have done at trial." Leak, 22 A.3d at 1045 (quoting Commonwealth v. Cruz-

  Centeno, 668 A.2d 536, 542 (Pa. Super. 1995)).

                                  Defendant does not dispute that Wright was unavailable at the time of trial. Here, the

  admissibility of the preliminary hearing testimony turns on whether defendant was denied access

 to "vital impeachment evidence" at the time that defense counsel cross-examined Wright at the

 preliminary hearing. Defense counsel identified the Studio 7 Bar's surveillance video and
                                                                                                                                                                                                                                                                   '
 defendant's own statements to police, as the vital impeachment evidence that was not available

 at the preliminary hearing. Motion In Limine to Preclude Admission of Former Testimony of

 Cory Wright at pp. 2-3; N.T. 3/7/16 at 300-301, 310-312.                                                                                                                                     In particular, counsel argued that in




                                                                                                                                                               10
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                 defendant's statements to police, he identified Wright as the person who committed the murder

                 of Hines at issue in this case. He further argued that the surveillance videotape supported

                 defendant's contention that Wright was the killer. In particular, the video showed Wright leaving

                 the bar before the homicide, and therefore proved that Wright could have been in the area of the

                 murder at the time that it took place. By contrast, at the preliminary hearing, Wright testified

                 that he was inside of the bar at the time of the murder, thereby giving himself a false alibi for that

                  murder. Defendant claims that armed with defendant's statement accusing Wright of the murder,

                  and the surveillance video, which disproved Wright's alibi for the murder, defense counsel could

                  have conducted a far more effective cross-examination of Wright at the preliminary hearing.

                 N.T. 3/7/16 at 300-301, 308-311.

                                          The record establishes that neither defendant's statements nor the surveillance video were

                  vital impeachment evidence. As for the statements, defendant was well aware, prior the

                  preliminary hearing, of his own contention that Wright was the killer. The Commonwealth

                  cannot be faulted for not informing defense counsel of defendant's own exculpatory version of

                  the facts.

                                          As for the surveillance video, while it may have shown that Wright was incorrect about

                  when he left the bar on the night of the homicide, he was not called as a witness to the homicide.

                  His purpose for being called was to establish defendant's culpability for the double shooting that

                  occurred after the homicide, and therefore, any questions about his whereabouts at the time of.

                 the homicide were collateral to his testimony. Moreover, the Commonwealth had turned

                 extensive discovery over to the defense prior to the preliminary hearing which established,

                 independent of the video, that Wright must have been incorrect about when he left the bar. In

                 particular, Wright testified that he went to the bar about 11 :30 p.m or 12:00 a.m., stayed 15 or 20




                                                                                                                                                                  11
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                                   minutes, and then left. The extensive discovery provided before the preliminary hearing

                                   informed counsel that the murder occurred at about 12:45 a.m.. Therefore counsel had sufficient

                                   information, prior to the preliminary hearing, to cross-examine Wright about his claim to have

                                   left the bar after the homicide occurred. See N.T. 3/7/16 at 301-304. Finally, the defendant's

                                   ability to use the video to support his theory of the case was not, in any way, diminished by not

                                   having the video at the preliminary hearing. The video was fully available at trial and capable of

                                   being presented to the jury with the same force and effect as it would have had if the defense had

                                   used it first to confront Wright at the preliminary hearing.

                                                      Accordingly, as defendant was not denied vital impeachment evidence, the admission of

                                  Wright's preliminary hearing testimony was admissible under Rule 804(b)(l) and did not violate

                                  the Confrontation Clause. Leak, 22 A.3d at 1044-45. No relief is due.

                                                                                                                                                   III. CONCLUSION

                                                      For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.



                                                                                                                                                                                                                          BY THE COURT:




                                                                                                                                                                                                                         GLENN B. BRONSON, J.




                                                                                                                                                                            12
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                                             Commonwealth v. Munir Pankery                                                                                                                                                                      CP-51-CR-0004331-2014
                                             Type of Order: 1925(a) Opinion                                                                                                                                                                     CP-51-CR-0004332-2014

                                                                                                                                                      PROOF OF SERVICE

                                             I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and
                                             in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:

                                             Defense Counsel/Party:
                                                                                                                                            Jeremy-Evan Alva, Esquire
                                                                                                                                            1520 Locust St. Ste. 700
                                                                                                                                            Philadelphia, PA 19102

                                             Type of Service:                                                      () Personal (X) First Class Mail () Other, please specify:



                                             District Attorney(s):
                                                                                                                                            Hugh J. Burns, Jr., Esquire
                                                                                                                                            Chief, Appeals Unit
                                                                                                                                            Philadelphia District Attorney's Office
                                                                                                                                            Three South Penn Square
                                                                                                                                            Philadelphia, PA 19107


                                            Type of Service                                                        O Personal                                (X) First Class Mail () Other, please specify:



                                            Additional Counsel/Party:
                                                                                                                                          Joseph D. Seletyn, Esquire
                                                                                                                                          Prothonotary
                                                                                                                                          Office of the Prothonotary - Superior Court
                                                                                                                                          530 Walnut Street, Suite 315
                                                                                                                                          Philadelphia, PA 19106

                                           Type of Service:                                                      ( ) Personal (X) First Class Mail () Other, please specify:




                                           Dated: September 23, 2016




                                          Jonathon M. Frisby
                                          Law Clerk to Hon.




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