J-A21008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                              IN THE SUPERIOR COURT OF
                                                                 PENNSYLVANIA
                              Appellee

                         v.

HAKIM BOND,

                              Appellant                       No. 3473 EDA 2012


             Appeal from the Judgment of Sentence July 20, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007714-2009


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

MEMORANDUM BY BOWES, J.:                                    FILED OCTOBER 07, 2014

       Hakim      Bond    appeals    from      the    judgment     of   sentence   of   life

imprisonment without parole imposed by the trial court after a jury found

him guilty of first-degree murder, conspiracy to commit murder, and

possession of an instrument of crime.            As Appellant was a juvenile at the

time of the commission of the crimes, we vacate his judgment of sentence

pursuant     to    Miller     v.   Alabama,          132   S.Ct.   2455    (2012),      and

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), and remand for re-

sentencing. In all other respects, we affirm.

       On January 20, 2006, Marvin Flamer drove Appellant, a juvenile, and

Nafeast Flamer to the 2200 block of West Pierce Street, Philadelphia. The
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A21008-14


victim, Allen Moment Jr., was conversing with Aisha Williams outside of a

Chinese restaurant at that location.1 As Ms. Williams began to walk away,

Appellant and Nafeast Flamer exited the car and fired a barrage of bullets at

the victim, striking the victim fourteen times.   Mr. Moment staggered into

the arms of Ms. Williams, who cradled him until the arrival of police. Despite

being shot in his abdomen, chest, and both legs, Mr. Moment initially

survived the attack. Mr. Moment at first declined to identify his attackers as

did Ms. Williams. Due to the shooting, Mr. Moment remained confined to a

hospital bed and had to be fed intravenously for the remainder of his life.

Since the victim had to be fed intravenously and used a catheter to urinate,

he was subject to a high risk of infection and repeatedly suffered from blood

poisoning and line sepsis.2

____________________________________________


1
  Ms. Williams, in a statement to police, indicated that she wished to
purchase drugs from the victim.
2
  The Commonwealth introduced into evidence a letter from Appel
doctor at the Hospital of the University, which detailed his medical
complications as follows:

              Allen Moment Jr. was admitted to the Hospital of the
       University of Pennsylvania on 1/21/06 after sustaining multiple
       gunshot wounds to his abdomen, pelvis, and lower extremities.
       He was brought emergently to the operating room where he
       underwent exploratory laparotomy, multiple bowel resections
       and bladder repair. His post-operative course was extremely
       complicated.       He developed bilateral lower extremity
       compartment syndrome, renal failure, multiple entercoutaneous
       fistulas, short gut syndrome, pericarditis with acute pericardial
       pneumonias, line infections, and urinary tract infection. He
(Footnote Continued Next Page)


                                           -2-
J-A21008-14


      At the end of January 2008, Mr. Moment was taken to the Intensive

Care Unit of Hospital of the University of Pennsylvania due to line sepsis.



to die within several days. Accordingly, Mr. Moment requested to speak with

police.   Detectives interviewed Mr. Moment on February 4, 2008, while he

was in the presence of his mother and an uncle. Mr. Moment named Marvin

Flamer, and selected Appellant and Nafeast Flamer from photographic arrays

as his assailants.       Mr. Moment and Appellant had been friends for many

years and the Flamers were his cousins. Two days after this statement, Mr.

Moment identified Marvin Flamer from a photograph and indicated that he

had been the driver of the vehicle involved.             He again asserted that

Appellant and Nafeast Flamer had shot him. Police also took a videotaped

statement from the victim on February 14, 2008. Mr. Moment repeated that

Appellant and Nafeast Flamer had shot him and Marvin Flamer had driven

the car used in the incident.

                       _______________________
(Footnote Continued)

      developed critical care myopathy which left him essentially
      quadriplegic. He required constant nursing care and frequent
      intensive care unit admissions. During the course of his 2 ½
      year hospitalization he required multiple surgical procedurse
      including re-laparotomy, multiple bowel anastomosis, split
      thickness skin grafts, incision and drainage of lower extremities,
      tracheostomy, supra-pubic bladder drainage, thoracotomy,
      craniectomy, cholecystostomy tube placement, and multiple
      central venous lines.

                                -8, Letter from Dr. Carrie Sims, 12/19/08.



                                            -3-
J-A21008-14


     Upon receiving this information from the victim, police sought

information from Ms. Williams.   Ms. Williams confirmed on both March 17,

2008, and August 29, 2008, that Appellant was one of the shooters, and

identified both Marvin and Nafeast Flamer as additional perpetrators.     At

trial, however, Ms. Williams retracted these statements.

     The victim died on August 6, 2008. Subsequently, on September 6,

2008, the Commonwealth charged Appellant with homicide, conspiracy to

commit murder, and PIC.       The Commonwealth and Appellant litigated

several pre-trial motions, including a motion by the Commonwealth to

introduce evidence regarding the death of an eyewitness, Abdul Taylor. Mr.

                                                           -defendants. The

court severed Appe                                         -defendants, and



also held under advisement a portion of the motion. Specifically, relevant to

this appeal, the court admitted testimony from two detectives who took a

statement from Mr. Taylor on August 13, 2008, but noted that the statement

was subject to redaction regarding Appellant. The Commonwealth filed an

interlocutory appeal, but later discontinued it.       Thereafter, Appellant

proceeded to

                                        -defendants having killed Mr. Taylor.

The court also admitted into evidence, as dying declarations, several

statements from the victim implicating Appellant in the shooting.


                                    -4-
J-A21008-14


       At the conclusion of the trial, the jury found Appellant guilty of the

aforementioned crimes. The court sentenced Appellant on July 20, 2012, to

life imprisonment without parole for the first-degree murder charge and

imposed no further penalty on the remaining counts. Appellant filed a timely

post-sentence motion, which the court denied by operation of law.

Subsequently, Appellant filed a pro se notice of appeal, and the court

ultimately    appointed     substitute    counsel.3    Original    appellate   counsel

withdrew and the court appointed current counsel.

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

concise statement of errors complained of on appeal.              Appellant complied,

and the court authored its Rule 1925(a) opinion. The matter is now ready



       [1.] Whether there was prosecutorial misconduct at trial, which

       the U.S. Constitution 5th, 6th, and 14th Amendments and Pa.
       Constitution Art. I § 9, when the prosecutor violated the

       barred [the] Commonwealth from introducing any statements or
       comments to the jury which would implicate the appellant in the
       killing of an eyewitness.

       [2.]   Whether the trial court committed substantial legal error,

       Constitution 5th, 6th, and 14th Amendments and Pa. Constitution

       extraordinary     relief   for    misconduct   of   the    prosecutor   in
____________________________________________


3
   Appellant had privately retained counsel for purposes of his trial.
According to Appellant, that attorney declined to file a notice of appeal on
his behalf.



                                           -5-
J-A21008-14


       prejudicial opening statements to the jury, in direct violation of


       [3.] Whether the trial court committed substantial legal error,
       which was highly prejudicial to appellant, when it admitted a

       a victim who did not die until approximately 2 ½ years after the
       i


       [4.] Whether the trial court committed substantial legal error,
       which was highly prejudicial to appellant, when it allowed a
                                                                 dacting
       allegations relating to an unrelated, uncharged homicide, which
       the declaration attributed to the appellant and codefendant.

       [5.] Whether the verdict was against the weight and sufficiency
       of the evidence.4

                        -5.

       At the outs

argument as a successful sufficiency challenge warrants discharge and not a

retrial on the relevant crimes. We review the sufficiency of the evidence by

considering the entire record and all of the evidence admitted at trial.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

We view such evidence in a light most favorable to the Commonwealth as

the verdict winner, drawing all reasonable inferences from the evidence in
____________________________________________


4
  Appellant has also filed a reply brief raising for the first time the lawfulness
                                 Miller v. Alabama, 132 S.Ct. 2455 (2012),
and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013). Generally, it is
improper to raise and present new issues in a reply brief. Commonwealth
v. Basemore, 744 A.2d 717, 726-727 (Pa. 2000). However, as this Court
may consider legality of sentence issues sua sponte, we discuss this issue in
the body of this memorandum.



                                           -6-
J-A21008-14


favor of the Commonwealth. Id. When evidence exists to allow the fact-

finder to determine beyond a reasonable doubt each element of the crimes

charged, the sufficiency claim will fail. Id.

                        need not preclude every possibility of innocence and the

fact-

Id.     In addition, the Commonwealth can prove its case by circumstantial

                        the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined



                 -weigh the evidence and substitute our judgment for that of

the fact-         Id.

                                                                entirely on the

basis that the prosecutor wrongly attributed two additional homicides to

Appellant and the court erred in admitting the dying declaration. However,

this argument has no bearing on a sufficiency analysis. This Court considers

all of the evidence introduced, even erroneously admitted evidence.

Further, aside from citing one case relative to our standard of review,

Appellant offers no legal support for his position. Here, viewing the evidence

in a light most favorable to the Commonwealth, it is clear that sufficient

evidence exists to show that Appellant possessed a weapon with intent to

commit a crime, shot and killed the victim, and conspired to do so with




                                       -7-
J-A21008-14


       Having




prosecutor violated a pretrial order precluding the Commonwealth from

introducing evidence that Appellant was involved in the killing of Abdul

Taylor, a witness to the shooting in this matter who was shot in the head



his co-defendants because there was significant evidence that his co-

defendants and another individual conspired to kill Mr. Taylor, but there was

no evidence tying Appellant to that murder.5



opening that a witness was killed, and the prosecutor wrongly names the

appellant as a perpetrator in that crime, he inflamed the jury and tainted the



declining to issue a cautionary instruction as requested.

       The Commonwealth rejoins that Appellant did not object to the



that Appellant did request the court to instruct the jury to disregard

evidence of an uncharged crime, but that this objection occurred after the

____________________________________________


5
  The evidence linking Nafeast and Marvin Flamer to the death of Mr. Taylor
is partially outlined in Commonwealth v. Flamer, 53 A.3d 87 (Pa.Super.
2012).



                                           -8-
J-A21008-14


opening statement and was not in reference to the killing of Mr. Taylor.   The



not suggest Appellant was involved in the death of Mr. Taylor.      Rather, it



[shows] that Nafeas[t] and Marvin conspired to kill Abdul, and he was killed;



the jury did not hear any evidence implicating Appellant in the death of Mr.



not evidence.

     Statements made by a prosecutor during his opening or closing

                                                  tor deliberately attempts to

destroy the objectivity of the jury and the unavoidable effect of the remark

is to create such a bias and hostility toward the defendant that the jury

                                             Commonwealth v. Mollett, 5

A.3d 291, 311 (Pa.Super. 2010) (citing Commonwealth v. Laird, 988 A.2d

618, 644 (Pa. 2010)). As our Supreme Court has opined,


     the case will develop, its background and what will be attempted
     to b                                         Commonwealth v.
     Montgomery, 533 Pa. 491, 498, 626 A.2d 109, 113 (1993)
     (citing Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d
     1383 (1983)). In Montgomery,
     practical matter the opening statement can often times be the
     most critical stage of the trial, because here the jury forms its
                                                       Montgomery,
     533 Pa. at 498, 626 A.2d at 113. The prosecution, as well as the
     defense, is afforded reasonable latitude in presenting opening
     arguments to the jury. Commonwealth v. Jones, 530 Pa. 591,

                                    -9-
J-A21008-14


      607, 610 A.2d 931, 938 (1992). Such latitude is not without
      limits.


      that he plans to introduce at trial, and must not include mere

      Commonwealth v. Begley, 566 Pa. 239, 274, 780 A.2d 605,
      626 (2001) (citing Jones, supra). A prosecutor's opening
      statements may refer to facts that he reasonably believes will be
      established at trial. Id.

Commonwealth v. Parker, 919 A.2d 943, 950 (Pa. 2007).



by failing to object. Further, the prosecutor did not indicate that Appellant

was involved in the death of Mr. Taylor, and the jury was properly instructed



is not entitled to relief.

      The second issue Appellant levels on appeal is that the court erred in




Appellant offers no citation in support of the merits of his position and

includes only one boilerplate citation, this issue fails for the same reasons




                        to police implicating Appellant as dying declarations.




                                     - 10 -
J-A21008-14


he experienced a sense of urgency that his life was imminently slipping away




statements, not on how long the miracles of medical science enable him to



It maintains that, at the time the victim made his statements, his doctor had

informed him that he was going to die, likely within days.        Thus, the



statements was that his death was imminent.

     The Pennsylvania Rules of Evidence permit the introduction of a dying

declaration as an exception to the hearsay rule. A




Former Pa.R.E. 804(b)(2) (rescinded and replaced effective March 18,

2013).   This rule is derived from longstanding Pennsylvania law.         In

Kilpatrick v. Commonwealth, 31 Pa. 198 (1858), the High Court declared

                                                                   declarant

made them he was in actual danger of death; unless he believed death was

                                                                 Id. at 215.

There the victim died nine days after his statement. The Kilpatrick Court


                                   - 11 -
J-A21008-14


                            statements were made under a sense of impending

death. In this respect, the Court recognized:

      It is enough, if it satisfactorily appears, in any mode, that they
      were made under that sanction; whether it be directly proved,
      by the express language of the declarant, or be inferred from his
      evident danger, or the opinions of the medical or other
      attendants stated to him, or from his conduct, or other
      circumstances of the case, all of which are resorted to in order to
      ascertain the state of the declarant's mind.

Id.

declaration and, therefore, admissible hearsay if the declarant believes he or

she   is going to    die    (which can    be    inferred from the     surrounding

circumstances),     death     is   imminent,    and   d

Commonwealth v. Priest, 18 A.3d 1235, 1241 (Pa.Super. 2011).

      In this case, the surrounding circumstances establish that the victim

believed that his death was imminent. Specifically, after being readmitted to

the Intensive Care Unit, his doctor informed him and his family that he was

close to dying.   The victim, after expressing his love for his mother, and

telling her that he was not afraid, asked to speak with detectives.           The

                                                          8, and said that her son

might not make it much longer and wished to tell police who shot him.

Thereafter, on February 4, 2008, the victim identified Appellant as one of his

attackers.   He reiterated his identification on February 6, 2008, and in a

videotaped interview on February 14, 2008.            The officer who taped the




                                       - 12 -
J-A21008-14




believed the man was going to d              Id. at 44.

      Our Supreme Court has previously ruled that the fact that a victim did

not die for a month after her statement did not preclude the admissibility of

the statement where the individual believed death was approaching.

Commonwealth v. Stickle, 398 A.2d 957 (Pa. 1979). Although the victim

in this matter survived for an additional seven months after the doctor

informed him that he was going to die soon, the facts of this case establish

that he believed that his death was imminent. Accordingly, we find no error

by the trial court.

      Appellant in his penultimate issue asserts that the trial court erred in



statement implicated Appellant and his co-defendants in the death of

another person, Anthony Dickerson. In advancing his argument, Appellant



Nafeast Flamer wanted to kill him because they believed the victim was

seeking revenge for th

Appellant notes that there was no proof that he was involved in the death of

Mr. Dickerson, and he was not charged for that crime.             According to

                                                          ence to this homicide

was error.




                                    - 13 -
J-A21008-14




he did not seek a redaction prior to trial and did not object at the time the

statement was read. Instead, Appellant objected after the witness who read

the statement, a police officer, left the witness stand. With respect to the

merits, the Commonwealth maintains that evidence of other bad acts is



bad act is admissible to show motive or as part of the res gestae of the case.

We agree that evidence that the victim was shot to prevent him from

retaliating against Appellant for the shooting of Mr. Dickerson was

                                                       See Pa.R.E. 404(b);

Commonwealth v. Green, 76 A.3d 575 (Pa.Super. 2013). Thus, Appellant

is not entitled to relief.




sufficiency argument and now reach his weight of the evidence position.

                                     is a review of the exercise of discretion,

not of the underlying question of whether the verdict is against the weight of

the evidence.     Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)

                                    o]ne of the least assailable reasons for

granting or denying a new trial is the lower court's conviction that the

                                                               Id.




                                    - 14 -
J-A21008-14




                      Id.   Instead,    the     court   must   examine    whether



that to ignore them or to give them equal weight with all the facts is to deny

             Id

as

trial. Id.

      In the present case, there are not certain facts that clearly outweigh



as one of the shooters on multiple occasions while he believed his death was




claim is meritless.

      As noted, Appellant filed a reply brief raising for the first time that he

was a juvenile at the time he committed this crime. Therefore, he submits

that he could not be sentenced to a mandatory term of life imprisonment.

                                                                         gly, since

the issue relates to the legality of his sentence, and in light of Miller, supra

and Batts, supra, we vacate his judgment of sentence and remand for

resentencing.




                                       - 15 -
J-A21008-14


      Judgment of sentence vacated.      Case remanded for re-sentencing.

                     tion for post-submission communication filed July 29,

2014 is granted. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




                                    - 16 -
