J-A08015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ACKEEM MORRIS                              :
                                               :
                       Appellant               :   No. 255 EDA 2018

            Appeal from the Judgment of Sentence December 8, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0011393-2016


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY LAZARUS, J.:                                 FILED JUNE 22, 2020

       Ackeem Morris appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after a jury convicted him of

attempted murder, aggravated assault, conspiracy to commit attempted

murder and aggravated assault, two violations of the Uniform Firearms Act,

possession of an instrument of crime (PIC), simple assault, and recklessly

endangering another person (REAP).1            After careful review, we affirm the

convictions based on the opinion authored by the Honorable Susan I.

Schulman. However, for the reasons set forth below, we vacate the judgment

of sentence and remand for resentencing.

       The events leading up to the shooting of Brandon Davis were captured

on various cameras placed throughout the streets of Philadelphia, and within
____________________________________________


118 Pa.C.S.A. §§ 901, 2702(a)(1), 903, 6106 and 6108, 907, 2701(a)(1),
and 2705, respectively.
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public spaces in an apartment building in North Philadelphia. On September

17, 2016, at approximately 11 A.M., Morris was dressed in traditional Muslim

garb, and was wearing a brown purse, sunglasses, and distinctive bright

yellow socks.     Morris, standing on the eighth floor of the aforementioned

apartment building in North Philadelphia, took an elevator with Talil Williams,2

who was carrying a bicycle. The two knew each other and took the elevator

down to the lobby and walked outside together.

        Various cameras show that Williams arrived first, and alone, at the

intersection of Carlisle and York Streets, the scene of the shooting, riding the

bicycle. There, Williams saw Davis, the victim, and exchanged a few brief

words with him before riding away. Morris arrived on foot shortly thereafter,

and stepped into the corner store at that location. Morris, after being inside

the store for only a few seconds, turned around, retrieved a pistol from his

purse as he exited the store, and immediately opened fire on Davis. Davis

fled down the street as Morris continued to fire a total of six shots at Davis.

After the shooting, Morris walked away from the intersection, eventually broke

into a run, and headed back in the general direction from which he came.

Morris appeared again on various cameras within minutes at the apartment

building elevators—this time undisguised—yet still wearing his shoes and

distinctive yellow socks. Morris was again accompanied by Williams, who now

carried the brown purse that Morris was initially wearing.          The police

____________________________________________


2   Talil Williams is also known as Yasin West.

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eventually searched Williams’ apartment, where they discovered the brown

purse, Morris’ ID card, the same distinctive yellow socks, and some black

shorts.   Subsequent laboratory testing revealed the presence of gun-shot

residue on the purse, and concluded that the DNA on the shorts very likely

came from Morris.

       On September 9, 2017, a jury found Morris guilty of all of the above-

stated charges. Morris subsequently pled guilty to possession of a firearm by

a convicted person, which was bifurcated to avoid revealing Morris’ felon

status to the jury. On December 8, 2017, the court sentenced Morris to ten

to twenty years’ incarceration for attempted murder, ten to twenty years for

conspiracy to attempt murder, and assessed no further penalty for the

remaining crimes, resulting in an aggregate sentence of twenty to forty years.

Morris filed motions for reconsideration of his sentence and post-trial relief on

December 18, 2017, both of which were denied that same day. This timely

appeal follows.

       In this appeal, Morris raises the following two claims:3

       (1) Did the lower court error when it failed to grant [Morris’]
       motion for a new trial based upon the insufficient evidence to
       sustain the multiple criminal convictions?


____________________________________________


3 Pursuant to Commonwealth v. Snyder, 870 A.2d 336, 342 (Pa. Super.
2005), Morris has abandoned his weight of the evidence claim on appeal
because that claim is undeveloped and indistinguishable from his sufficiency
of the evidence claim. See Appellant’s Brief, at 1; 8 (“The weight of the
evidence presented to the [j]ury was insufficient to sustain the guilty verdicts
to attempted murder, aggravated assault[.]”).

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      (2) Did the lower court commit [reversible] error and violate
      [Morris’] constitutional rights [] when it sentenced [Morris] to a
      combined consecutive sentence of twenty [] to forty [] years[’
      incarceration]?

See Appellant’s Brief, at 7; 9.

      In a sixteen-page opinion issued on May 1, 2019, Judge Schulman

addressed the issues identified in forty-eight numbered paragraphs in Morris’

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

appeal. Judge Schulman categorized the “repetitive, disorganized, and often

incoherent [issues] that [represent] a flagrant disregard for the clear mandate

of Rule 1925(b)” into:    (1) sufficiency of the evidence and weight of the

evidence claims, and (2) challenges to the sentence imposed. See Trial Court

Opinion, 5/1/19, at 9.

      Morris first challenges the sufficiency of the evidence to sustain his

convictions. He claims that the evidence was insufficient to identify him as

the shooter and insufficient to identify a victim. In Harden, we restated our

standard of review for sufficiency of the evidence claims on appeal as follows:

         The standard we apply in 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

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        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
        [finder] 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.

     Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa. Super.
     2014) (citations omitted; bracketed material in original). Further,
     in viewing the evidence in the light most favorable to the
     Commonwealth as the verdict winner, the court must give the
     prosecution the benefit of all reasonable inferences to be drawn
     from the evidence. Commonwealth v. Widmer, 744 A.2d 745,
     751 (Pa. 2000).

Commonwealth v. Harden, 103 A.3d 107 (Pa. Super. 2014).

     The jury convicted Morris of attempted first-degree murder, 18

Pa.C.S.A. § 901. Section 901 provides:

     (a)   Definition of attempt. -- A person commits an attempt when,
           with intent to commit a specific crime, he does any act which
           constitutes a substantial step toward to commission of that
           crime.

18 Pa.C.S.A. § 901(a). “A criminal homicide constitutes murder in the first

degree when it is committed by an intentional killing.” 18 Pa.C.S.A. §2502(a).

“For the [C]ommonwealth to prevail in a conviction of criminal attempt to

commit homicide, it must prove beyond a reasonable doubt that the accused

with a specific intent to kill took a substantial step towards that goal.”

Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa. Super. 2005). The

specific intent to kill can be inferred from the circumstances surrounding an

unlawful killing or from the fact that the accused used a deadly weapon to




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inflict injury to a vital part of the victim’s body.     Commonwealth v.

Geathers, 847 A.2d 730, 737 (Pa. Super. 2004).

     In Pennsylvania, criminal conspiracy is defined as follows:

     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.

18 Pa.C.S.A. § 903.     Also, “[a] conspiracy may be proven inferentially by

showing the relation, conduct, or circumstances of the parties, and the overt

acts of alleged co-conspirators are competent as proof that a criminal

confederation has in fact been formed.” Commonwealth v. Ruffin, 463 A.2d

1117, 1119 (Pa. Super. 1983) (quoting Commonwealth v. Kennedy, 453

A.2d 927 (Pa. 1982)).

     In response to the issues raised by Morris, the trial court has provided

a thorough and well-reasoned discussion explaining why these sufficiency

claims are meritless.    See Trial Court Opinion, 5/1/19, at 9-12 (finding

evidence sufficient to prove all elements of attempted first-degree murder and

conspiracy to commit first-degree murder where: (1) Morris’ co-conspirator,

Williams, told detectives Morris was the shooter; (2) video evidence

corroborates Williams’ statements to police about Morris’ guilt; (3) Williams

stated to police he encountered Morris dressed in Muslim garb minutes before

shooting; (4) Williams and Morris both went to location where Davis was


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standing outside of corner store and was shot; (5) Morris was videotaped

shooting Davis multiple times; (6) minutes after shooting, in elevator, Morris

mimicked and reenacted Davis’ reaction to being shot; (7) Morris’ DNA

matched DNA recovered from shorts worn by shooter whom Williams identified

was Morris; (8) Detective Michael Rocks testified he visited hospital several

times and spoke with Davis; (9) Detective Rocks testified that no other

shootings occurred on day and in area that Davis was shot; (10) Raheem Hall

advised Detective Michael Repici that he transported Davis to hospital because

“he was shot;” and (11) medical records state that Davis was transported to

Temple University Hospital on September 17, 2016, with multiple gunshot

wounds.)   Because we agree with the sound analysis expressed by Judge

Schulman in her opinion, we adopt it to dispose of Morris’ sufficiency issues

raised in this appeal.   We instruct the parties to attach a copy of Judge

Schulman’s decision in the event of further proceedings in the matter.

      Morris also challenges the aggregate sentence imposed by the trial

court, twenty to forty years of incarceration, by claiming that the trial court

“abused [its] discretion” in sentencing him to such an “excessive upward

departure” from the Pennsylvania Sentencing Guidelines. Appellant’s Brief, at

10.   “It is well settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.”      Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010); 42 Pa.C.S.A. § 9781(b).




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     In Commonwealth v. Cook, 941 A.2d 7 (Pa. Super. 2007), we

delineated the following four-part test that must be satisfied prior to our

reaching the merits of a discretionary sentencing issue:

     (1) [W]hether appellant filed a timely notice of appeal, Pa.R.A.P.
     902, 903; (2) whether the issue was properly preserved at
     sentencing or in a motion to reconsider and modify
     sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
     fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
     substantial question that the sentence appealed from is not
     appropriate under the Sentencing Code[.]

Cook, 941 A.2d at 11.

     In Commonwealth v. Kiesel, 854 A.2d 530 (Pa. Super. 2004), we

discussed the Rule 2119(f) requirement in greater detail:

     [W]hen the appellant has not included a Rule 2119(f) statement
     and the appellee has not objected, this Court may ignore the
     omission and determine if there is a substantial question that the
     sentence imposed was not appropriate, or enforce the
     requirements of Pa.[]R.A.P. 2119(f) sua sponte, i.e., deny
     allowance of appeal. However, this option is lost if the appellee
     objects to a 2119(f) omission. In such circumstances, this Court
     is precluded from reviewing the merits of the claim and the appeal
     must be denied.

Kiesel,   854    A.2d   at   533   (internal   citations   omitted);   see   also,

Commonwealth v. Gambal, 561 A.2d 710, 713 (Pa. 1989).

     Here, Morris failed to include a Rule 2119(f) statement in his brief. The

Commonwealth objected to Morris’ failure to include the Rule 2119(f)

statement.      See Appellee’s Brief, at 11-12.       Accordingly, this court is

precluded from reviewing the merits of Morris’ discretionary sentencing

claims. Kiesel, supra.



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     Finally, we recognize that a legality of sentencing claim is not waivable

and may be considered sua sponte by a reviewing court. Commonwealth v.

Ford, 461 A.2d 1281, 1288 (Pa. Super. 1983). Pursuant to 18 Pa.C.S.A. §

906, “[a] person may not be convicted of more than one inchoate crime of

attempt, solicitation, or conspiracy for conduct designed to commit or to

culminate   in   the   commission      of   the   same   crime.”     Pursuant    to

Commonwealth v. Maguire, 452 A.2d 1047, 1050 (Pa. Super. 1982), when

a trial court is faced with a jury verdict of guilty of more than one inchoate

crime, it is required to render judgment of sentence for no more than one of

those crimes.      Our Supreme Court has acknowledged that a section 906

violation goes to the legality of the sentence, and, thus, is non-waivable and

may be considered by an appellate court sua sponte. See Commonwealth

v. Jacobs, 39 A.3d 977, 982 (Pa. 2012).

     Here, the trial court imposed a sentence on both of Morris’ attempted

murder and conspiracy to commit murder convictions — two inchoate crimes.

Thus, the trial court’s sentence was imposed in violation of Maguire.

Accordingly, we vacate the sentence and remand for resentencing.                See

Commonwealth v. Jackson, 421 A.2d 845, 847 (Pa. Super. 1980). Because

the court ordered Morris’ sentences to run consecutive to each other, our

vacatur   upsets    the   sentencing    scheme     and   we   must   remand     for

resentencing. See Commonwealth v. Williams, 997 A.2d 1205, 1210-11

(Pa. Super. 2010) (“[I]f a correction by this Court may upset the sentencing

scheme envisioned by the trial court, the better practice is to remand [for

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resentencing.]”)    (internal   quotations,    citations,   and     corrections

omitted).   See also Commonwealth v. Moody, 441 A.2d 371, 375 (Pa.

Super. 1982) (after reversing judgment of sentence as to one of appellant’s

convictions, vacating remaining convictions in part, and remanding for re-

sentencing, we noted that “where a conviction on one count may have

influenced sentencing on other counts, all sentences should be vacated and

the case remanded for resentencing.”).         Therefore, we vacate Morris’

judgment of sentence and remand for resentencing.

      Convictions affirmed. Judgments of sentence vacated. Case remanded

for resentencing consistent with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20




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