J-S55006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee


                    v.

KAHHIM ODOM,


                         Appellant                   No. 1737 EDA 2013


             Appeal from the Judgment of Sentence April 22, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002652-2012

BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 16, 2014

      Kahhim Odom appeals from the judgment of sentence of life

imprisonment that was imposed by the trial court after a jury convicted him

of first degree murder, conspiracy, carrying an unlicensed firearm, carrying a

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

We affirm.

      Appellant and his co-defendant, Benderick Sterns, were convicted

based upon the testimony of three eyewitnesses to the November 27, 2011

shooting death of Rymeek Horton.      Additionally, Sterns admitted to killing

Mr. Horton to Stephon Brandon. Appellant also admitted to being involved

in killing Mr. Horton to Mr. Brandon as well as Paula Sharp. The trial court

aptly delineated the evidence adduced at trial:
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           On
     decedent") was killed, he, Amir Jones ("Amir"), Amir's brother
     Omar Jones ("Omar"), and Ramil Andrews were hanging out,
     smoking marijuana in front of Amir's and Omar's grandmother's
     house on Malcom Street, a few houses down from Frazier Street
     in Philadelphia. Amir testified that they shared one bag of
     marijuana, and then Omar and the decedent decided to go down
     Frazier Street, in the direction away from Whitby Avenue, to get
     some more. The decedent turned back and began to walk back
     toward his aunt and uncle's house on Malcom Street to tell his
     uncle to leave the door unlocked.

           Amir and Omar then saw two men start running down
     Frazier Street, from the direction of Whitby Avenue, firing guns
     at the decedent. One of them was wearing a gray hoodie, the
     other had on a dark hoodie. Amir and Omar both identified the
     man in the dark hoodie as [Appellant] and the man in the gray
                                  -
     jammed, but he cleared the jam and continued shooting. Omar

     the decedent lying on the ground.

            When the first shots rang out, Vance Bradley ("Bradley")
     was in his house at 5628 Malcom Street. Bradley heard four
     shots and then a pause, and then he went to look out his door.
     He saw the decedent lying just in front of his house, about three
     feet from the sidewalk, in the street.

            Bradley testified that he saw [Appellant] and Sterns walk
     toward the decedent [Appellant] was wearing a dark hoodie,
     and Sterns was wearing a gray hoodie, but Bradley could see
     both their faces. Both men had guns. Sterns stood over the
     decedent, [Appellant] just a few feet behind him, and [Sterns]
     fired four more shots at the decedent's head. Bradley then saw
     both [Appellant] and Sterns run back up Frazier Street toward
     Whitby Avenue.


     arrived at home and parked his car between Malcom Street and
     Whitby Avenue on Frazier Street. As he walked down Frazier
     Street and then down Whitby Avenue, he saw two men get out
     of a white Chevrolet Impala parked on Whitby Avenue near
     Frazier Street. One wore a gray hoodie, the other wore a dark
     hoodie. The two men walked toward the intersection of Malcom

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     and Frazier Streets. Taylor continued walking home, but then
     heard gunshots from the direction of that intersection. He
     looked back toward the sound of the gunshots and saw the same
     two men running back, guns in hand, and getting back in the
     car, which then drove off.



     Brandon expressed concern that people in the neighborhood
     would think he had killed the decedent, as the two men had had
     an argument over drug sales.         [Appellant] responded to


     N.T. 4/11/2013 at 52-53.      [Appellant] became upset and then



                                Id.] at 55.

Trial Court Opinion, 11/21/13, at 2-4 (footnotes and extraneous citations to

record omitted). The Commonwealth established that the victim died from

multiple gunshot wounds, including three to the head.

     This appeal followed imposition of the above-described sentence.

Appellant raises two arguments on appeal:

     A. Whether Appellant is entitled to an arrest of judgment as to
     each charge, because the evidence presented at trial was
     insufficient for a finder of fact to render a guilty verdict beyond a
     reasonable doubt.

     B. Whether the Court erred in denying Appellant's request for a
     mistrial, due to the Commonwealth's Brady violation.



     We first recite our standard of review regarding the sufficiency of the

evidence.




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             The standard we apply when reviewing the sufficiency of
      the evidence is whether viewing all the evidence admitted at trial
      in the light most favorable to the verdict winner, there is
      sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.          Any doubts
      regarding a defendant's guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced is free to believe all, part or
      none of the evidence.         Furthermore, when reviewing a
      sufficiency claim, our Court is required to give the prosecution
      the benefit of all reasonable inferences to be drawn from the
      evidence.

Commonwealth v. Slocum, 86 A.3d 272, 275 (Pa.Super. 2014) (citation

omitted).

      Appellant first challenges his convictions for first-degree murder and

                                ements of first-degree murder: (1) a human

being was unlawfully killed; (2) the defendant was responsible for the killing;



Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013) (18 Pa.C.S.

§

finding that he possessed the specific intent to kill Mr. Horton.           The




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with Sterns, repeatedly shot at the fleeing victim, who was struck in the

back and neck by the bullets.         A jury can properly conclude that the

defendant had the specific intent to kill when he runs after a fleeing victim

and repeatedly shoots him. Commonwealth v. Geathers, 847 A.2d 730,

737 (Pa.Super. 2004). Additionally, Appellant stood and watched his cohort

shoot the victim in the head three times after the victim was immobilized

from the other bullet wounds.      Hence, we conclude that the evidence was

sufficient to establish that Appellant had the specific intent to kill the victim.

      Appellant also maintains that he was not guilty of conspiracy.           The

crime of conspiracy is set forth in 18 Pa.C.S. § 903(a):

      A person is guilty of conspiracy with another person or persons
      to commit a crime if with the intent of promoting or facilitating
      its commission he:

            (1) agrees with such other person or persons that
            they or one or more of them will engage in conduct
            which constitutes such crime or an attempt or
            solicitation to commit such crime; or

            (2) agrees to aid such other person or persons in the
            planning or commission of such crime or of an
            attempt or solicitation to commit such crime.



defendant entered into an agreement with another to commit or aid in the

commission of a crime; 2) he shared the criminal intent with that other

person; and 3) an overt act was committed in furtherance of the

               Commonwealth v. Nypaver, 69 A.3d 708, 715 (Pa.Super.

2013) (citation omitted).

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(2) knowledge of the commission of the crime; (3) presence at the scene of

the crime; and (4) in some situations, participation in the object of the

                      Id. at 715 (partially quoting Commonwealth v. Feliciano,

67 A.3d 19, 25 (Pa.Super. 2013)(en banc)).

        Ignoring the evidence presented by the Commonwealth, Appellant

maintains that he was hiding behind a car when the victim was killed and

was merely a bystander who witnessed Sterns kill Mr. Horton. However, the

evidence        adduced         by     the     Commonwealth   established   the   following.

Appellant and Sterns associated with each other by arriving at the scene of

the crime together, jointly shooting at the victim, and then fleeing after he

was dead.           Appellant admitted to Ms. Sharp and Mr. Brandon that he

participated in the killing of the victim. Hence, the evidence was sufficient to

support the conviction of conspiracy since all four factors necessary to

establish a conspiracy were present herein.

        Appellant also challenges his firearms convictions.1 He was adjudged

guilty under 18 Pa.C.S. § 6106(a), firearms not to be carried without a

____________________________________________
1
   We note that the trial court opined that the two firearms convictions were
infirm since the Commonwealth failed to establish the barrel length of
                                                       see 18 Pa.C.S. § 6102
                                   of the Uniform Firearms Act and outlining
that the barrel length of pistols, revolvers, shotguns, and rifles may not
exceed a certain number of inches to be a firearm for purposes of that Act).
However, in this appeal, Appellant does not challenge either of his firearms
convictions on this basis. It is well-established that this Court is prohibited
(Footnote Continued Next Page)

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license, which states, with exceptions ina                                any person

who carries a firearm in any vehicle or any person who carries a firearm

concealed on or about his person, except in his place of abode or fixed place

of business, without a valid and lawfully issued license under this chapter



that no one established that he concealed his gun and that there was no

proof the firearm was operable.

        However, Mr. Taylor stated that he saw two men, one wearing a grey

hoodie and the other wearing a dark hoodie, arrive near the site of the

shooting in a car.             Mr. Taylor continued that they exited the car, that he

heard gunshots, and that the same two men then re-entered the car. Other

witnesses established that Appellant was wearing a dark hoodie and that

Sterns was wearing a grey hoodie. The Commonwealth is entitled to all the



that Appellant, who was carrying his weapon, arrived at the crime scene

inside a vehicle, and then Appellant re-entered that car after the shooting.



was sufficient to support this crime.

                                                                      ection with his

challenge to 18 Pa.C.S. § 6108, carrying firearms on public streets or public
                       _______________________
(Footnote Continued)
from raising a contention sua sponte. Commonwealth v. Pitts, 981 A.2d
875 (Pa. 2009). Hence, we are barred from overturning the firearms
convictions herein on a ground not raised by the Appellant.


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                                                       o person shall carry a

firearm, rifle or shotgun at any time upon the public streets or upon any

public propert

from licensing.



functional. Specifically, Omar Jones testified that he saw Appellant firing his

firearm.    Additionally, Appellant admitted to Mr. Brandon that he had a

shootout with the victim.    Appellant claims that his gun jammed, but the

evidence established that he fired the weapon four times before it ceased to

fire. N.T. Trial, 4/12/13, at 100.    Hence, it was operable.     We therefore



Act.



grant him a mistrial, which was requested based upon a purported violation

of Brady v. Maryland, 373 U.S. 83 (1963).


       [A] trial court may grant a mistrial only where the incident upon
       which the motion is based is of such a nature that its
       unavoidable effect is to deprive the defendant of a fair trial by
       preventing the jury from weighing and rendering a true verdict. .
       . . In reviewing a trial court's denial of a motion for a mistrial,
       our standard is abuse of discretion.

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013) (citations

omitted).




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      In this case, Appellant presented Dominique Evans who provided an

alibi defense and reported that Appellant was in his company when the

                                 Brady argument involves the fact that a

detective interviewed Evans and Evans told the detective that Appellant was



Commonwealth violated Brady

to the detective. It is established that the reason behind Brady is to require

the prosecution to provide to the defendant exculpatory evidence in the sole

control of the Commonwealth.     Commonwealth v. Paddy, 800 A.2d 294

                                 Brady violation occurs if the evidence in

question is available to the defense from non-governmental sources . . . or if

the defendant knew, or with reasonable diligence could have known, of such

              Id. at 305; Accord Commonwealth v. Spotz, 18 A.3d 244,

276                            Brady violation when the appellant knew or,

with reasonable diligence, could have uncovered the evidence in question, or

when the evidence was available to the defense from non-governmental



      In this case, Appellant knew about Evans because he presented him as

a witness. Appellant also suggests that the fact that Evans told police about



of the interview and could have told Appellant about it. There simply was no

Brady                                                                   irm.


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       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2014




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