J-A30011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KANIKA OUM

                            Appellant                No. 1939 EDA 2013


             Appeal from the Judgment of Sentence June 13, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001090-2012


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 30, 2015

        Kanika Oum appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County.         We affirm in part, and

vacate and remand in part, and we rely upon the opinion authored by the

Honorable Charles J. Cunningham, III.

        On November 1, 2011, Oum and his co-defendant, Samneang

Samneang,1 shot a fifteen-year old boy in the face near the intersection of

75th Street and Buist Avenue in Southwest Philadelphia. Following trial, a


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Co-defendant’s name is Samneang Sin, however he was charged and tried
as Samneang Samneang. See N.T. Trial, 2/27/13, at 49-50. Samneang’s
related appeal is docketed at 1824 EDA 2013.
J-A30011-14



jury convicted Oum of attempted murder,2 criminal conspiracy,3 aggravated

assault,4 violation of the Uniform Firearms Act (VUFA),5 and possession of an

instrument of crime (PIC).6

        The court sentenced Oum to a term of imprisonment of 15-30 years

for attempted murder, a consecutive term of 5-10 years on the conspiracy

conviction, and a consecutive term of 2-5 years on the VUFA conviction, for

an aggregate term of 22-45 years’ imprisonment. The court imposed no

further penalty on the PIC conviction. The court also determined the

aggravated assault conviction merged for sentencing purposes.

        Oum filed a timely appeal to this Court. The trial court ordered Oum

to file a Rule 1925(b) statement within 21 days.    See Pa.R.A.P. 1925(b).

After seeking an extension of time, which the court granted, Oum filed his

Rule 1925(b) statement on September 12, 2013.           He now raises the

following issues for our review:




____________________________________________


2
    18 Pa.C.S. §§ 901(a), 2502(a).
3
    18 Pa.C.S. §§ 903(a), 2502(a).
4
    18 Pa.C.S. § 2702(a).
5
    18 Pa.C.S. § 6106.
6
    18 Pa.C.S. § 907(a).




                                           -2-
J-A30011-14


         1. Did the trial court err in permitting the Commonwealth to
            repeatedly elicit hearsay?

         2. Did the trial court err in permitting testimony that
            Defendant had been seen with a firearm prior to the
            shooting, where the incident was remote and unrelated,
            and Defendant was not the alleged shooter in the case at
            trial, making the probative value of this evidence
            outweighed by its prejudicial impact on the jury?

         3. Did the trial court err by permitting the prosecutor to elicit
            prejudicial testimony that Defendant’s brother had asked a
            witness not to come to court?

         4. Did the trial court err by refusing to declare a mistrial after
            the prosecutor impermissibly implied during his closing
            argument that Defendant had a burden to produce
            witnesses and evidence in his defense?

         5. Should this Court remand the matter for re-sentencing in
            light of the lower’s court’s sua sponte recognition that
            Defendant’s sentence is improper?

Appellant’s Brief, at 14.

      Upon review of the parties’ briefs, the relevant law, and the record as

a whole, we find that the trial court has correctly disposed of issues 1-4 in

his opinion.   See Opinion, 2/7/14, at 8-19.         Therefore, we affirm the

convictions based on Judge Cunningham’s opinion.

      With respect to Oum’s fifth issue, the trial court acknowledged in its

Rule 1925(a) opinion that Oum’s sentence was illegal. The court sentenced

Oum to 15-30 years for attempted murder, and a consecutive term of 5-10

years on the conspiracy to commit murder conviction.          As the trial court

recognized, Oum could not be sentenced for two inchoate crimes for conduct

designed to culminate in the same offense, that is, murder. Section 906 of



                                      -3-
J-A30011-14



the Crimes Code precludes conviction of more than one of the inchoate

crimes of criminal attempt, criminal solicitation or criminal conspiracy “for

conduct designed to commit or to culminate in the commission of the same

crime.” 18 Pa.C.S. § 906. See Commonwealth v. Kelly, 78 A.3d 1136

(Pa. Super. 2013) (sentence for conspiracy and attempted murder should

have merged); see also Commonwealth v. Martinez, 438 A.2d 984 (Pa.

Super. 1981) (where criminal conspiracy to commit burglary and subsequent

attempted burglary constituted “conduct designed to culminate in the

commission of the same crime,” that is, burglary, defendant should not have

been sentenced for both attempt and conspiracy, but should have only been

sentenced for one or the other); Cf. Commonwealth v. Jacobs, 39 A.3d

977 (Pa. 2012) (where defendant's convictions for two inchoate crimes had

separate criminal purposes they did not merge.)

      We agree with the trial court’s assessment. Therefore, we vacate the

judgment of sentence and remand for resentencing in accordance with 18

Pa.C.S. § 906. See Commonwealth v. Watts, 465 A.2d 1267 (Pa. Super.

(1983). Counsel is directed to attach a copy of the trial court’s opinion in

the event of further proceedings in this matter.

      Affirmed   in   part;   vacated   and   remanded   in   part.   Jurisdiction

relinquished.




                                        -4-
J-A30011-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015




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                             COURT OF COMMON PLEAS

                 FIRST JUDlCL<IL DISTRICT OF PENNSYLVANIA

                              CRIMINAL TRIAL DIVISION                           FILED
                                                                                  FEB -7 2014
                                                                             Criminal Appeals Unit
                                                                           first JudiCial District of PA
COMMONWEALTH OF PENNSYLVANIA                        ..
                                                            1939 EDA 20 l3
                v.
                                                            CP·S\-CR-0001090-2012
KLNIKA OUM




                                       OPINION
                                                                       1111111111111111111111111
                                                                             7113717781


STATEMENT OF THE CASE

       Defendant appeals his conviction for attempted murder. criminal conspiracy and

other related charges arising out of Defendant's participation in a shooting which

occurred on November 1, 2011.         Defendant raises numerous complaints regarding

evidentiary rulings made by the Court during hi s trial.     Defendant's complainL<; are

withoUl merit


PROCEDURAL HISTORY

       On November 3, 201 J Defendant was arrested and charged with inlcr alia, I)

Criminal Attempt pursuant to 18 Pa.C.S.A. 901(a) to commit Murder pursuant to 18

Pa.C.S.A. 2S02; 2) Aggravated Assault pursuant to 18 Po.C.S.A. §2702(a); 3) Criminal

Conspiracy pursuant 18 Pa.C.S.A. 903(a) to commit Murder pursuant to 18 Pa.C.S.A.

2502; and 4) Possession of an Inslrument of a Crime With Intent pursuant.              10    18
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P•. C.S.A. 907(a). On March 4, 2013, at the conclusion of his jury trial Defendant was

found gui lty of the above charges. On June 13,2013 Defendant was sentenced to three

consecutive terms of confinement in a slate correctional fac ility: three to eight years on

the charge of attempted murder~ two to five years on the charge conspiracy to commit

murder; and one to two years on the charge of possession of an instrument of a crime. for

a total period of confinement of six to fifteen years. The charge              or aggravated assault
having merged wi th the charge of attempted murder. no penalty was assessed.

        On July 2, 2013, Defendant time ly filed the instant appeal to the Superior Court of

Pennsylvania.     On July 9. 2013, this Court filed and served on Defendant an Order

pursuant to Ru le 1925(b) afme Pennsylvania Rules of Appellate Procedure. On August

1,2013 Todd Michael Mosser, Esq. was appointed to represent Defendant as appellate

counsel. On August 9, 2013, th is Court fil ed and served on Defendant an Order pursuant

to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, direct ing Defendant

to file and serve a Statement of Errors Complained of on Appeal, within 21 days of the

Court's Order. On August 27, 2013, Defendant ftled: "Appellant's Request for Extension

of Time to f ile 1925(b) Statement," which the Court granted. On September 3, 2013 the

comp lete notes of testimony became available, 1 On September 12, 20 I3 Defendant

timely filed his Statement of Errors Complained of on Appeal raising fi ve i5sues, namely:

            a, "The Court erred by allowing Vyrcak Omn to testify to h.earsay
               statement made to him by Seagull Mok, see, N.T. 2127/13 at 192-
               195;




IOn AugLlS15. 2013 the Irial nutes of testimony became available. On August 27, 2013 the sentencing
 nOle.<; of Ie slim any bceama available. On September 3, 2013 the notes ofle5timony rel:lting to the
 ~ndering oflhe jury's verdict and the polling ofthe jury became available.



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          b. The Court erred by allowing the Commonwea lth to elicit testimony
              from Vyreak Qum about seeing Defendant with a handgun in a
              prior, unrelated incident, where the facts of this unrelated incident
              were too remote, such that its probative value waS outweighed by
              its prejudicial impact On the jury, N.T. 2/27/ 13 at 2 19-224;

          c. The Court comm itted reversible error by allowing the
             Co mmonwealth to call undue attention to Vyrcak Oum's prior
             statements by erroneously allowing multiple Commonwealth
             witnesses to olTer hearsay testimony about VjTeak Qum's
             statements, which in and of themselves contained even more
             hearsay sta'ements; N.T. 2128/13 , 58-62; 8 1-98

          d. Tllt: Court erred by allowing the Commonwealth to elicit testimony
             from Seagull Mok abou t Defendant's brother te lling him to not
             come to court, as the probativc value of thi s evidence was
             outweighed by its prejudicial impact on the jury, N.T. 3/1/13, 6·7;
             and,

          e. The prosecutor commilLed prosecutori al misconduct that warranted
             a mistrial when during closing argument he impennissibly
             commented on Defendant 's burden of proof and right to remain
             silen~ N .T. 3/ 1/13; 11 5- 11 9."



       Defendant's first and third complaint's essentially address the same issue and,
       therefore, will be addressed together.



EVIDENCE AT TRIAL

       The complainant, Qucozcl Members, testified thal on the eveni ng of November 1,

20 11 he was fiftcc n years old. At approximately 7:30 p.m., he was walking with three of

his friends, Shyeheim, Nasir and Sanuny. They encountered two asian males in the

vicinity of 75 th Street and Buist Avenue in the southwest section of the City of

Philadelphia. (NT., 2n7n0!3, pgs. 81 , 83) A!J he approached, he noticed one of 'he

males leaning over a dark colored Honda and the other male sitting in the car. Hc

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described the Honda as having blue headlights and a loud motor. (N.T., 212712013, pgs.

84,90-93,97)

       Mr. Members testified that he did not get a good look at the person in the car and

was unable to idcnlify him. (N.T., 2/2712013, pgs. 90, 91, III. 132) However, he did

testify tllat this per.)on was the driver and that the only featu re he could identify was thai

bis hair was "spiky." (N.T., 2127/2013, pgs. Hi8- 110)

       As he drew near, an argument ensued and ended when the male outside the car

said to the person inside "it's enough playing. pop the trunk." (N.T., 2127/2013 , pgs. 83,

85, 90, 91, 120) Taking this to mean Defendant "probably" had a gun, Mr. Members

immediately left the scene, and went to Shyehcim' s bou."e on the next block. (N.T.,

212712013, pgs. 86, 88)

       Mr. Members testified that, while silting on the front steps of Shyeheim's house,

he noticed the same car circling the block several times and acting "like they was looki ng

for me."     (NT., 2127/2013, pg, 93)      He also testified that, on secing Ibis, he " felt

threatened" and went to his own home, a short distance away, retrieved a .9 mm semi

automatic hand gun Cram his back yard and returned 10 his fr iends. (N.T., 212712013 .

pgs.94-96)

       Not seeing thc car, he and his friends went to a park "five or six" blocks away and

retumed about five or len minutes Later. (N.T .• 212712013 , pgs. 97-99) As they I!ntered

the alley behind Shyeheim's house, Mr. Members heard the engine of the ear and tben

saw the blue headlights when it tunted into the alley ahead of them. (N.T.,2127n013.

pgs. 97-99) The car then approached and slOpped next to him. Mr. Members saw the




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passenger window of the car roll down and was shot once in the face from inside the

passengerside of the car. (N.T., 2/2712013, pgs. 100-102)

           After being shot, Mr. Members Tan back to his house, with two of his friends,

cal led 911 for help and reported the shooling. (N.T., 212712013, pgs. 102- \04) He also

testified that the responding police officers immediately placed him in the back of their

patrol car and "rushed" him to the hospi tal for treatment. (N.T., 2f2712013, pg. 104)

           Corroborating Mr. Members' testimony, tvlr. Nasir Abdul-Raheem (Nasir),2

testified that on the evening of November 1,2011 at approximately 7:30 p.m., while

walking with Mr. Members and two other friends they encountered two asian males in

the vicinity of 7S lh Street and Buist Avenue in the southwest section of the City of

Pltiladelphia. (N.T., 2127120 13, pgs. 146, 147) As they approached, he noticed one of

lhe males leaning over a dark colored Honda with blue headlights and a loud motor,

talking to the other male sining in the car. Although he was able to identify Ihe person

standing outside the car, Nasir testified that he unable to see the person inside the car but

described him as the driver and having "spiky hair." (NT., 212712013, pgs. 147·149,

15\,164)

            As they drew near, a verbal altercation ensued between Mr. Members and the

male leaning over the car ending when Derendant told the person inside the car to "pop

the trunk." On hearing this he and his friends went to Shyeheim's house on the next

block. (N.T., 2127/2013, pgs. 152-154)

           Nasir testified that, on arriving at Shyeheim's house, Mr. Members announced he

was going to get " the gun." (N.T., 2127/2013, pg. 153) Nasir also observed the Honda


!   Nasir testified thai al the lime oflriat he '''115 sixteen years old, making him founeen years old on
November 1, 20 I I.

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circling the block "five or six times" in a !ilow deliberate manner and felt nervous and

scared, prompting him to hide behind a van parked in front of the house.            (N.T.,

2/2712013, pgs. 154, 155)

       When Mr. Members returned with a gun. the group went to a park and stayed

approx:imately fifteen minutes before returning to Shyeheim's house. (N.T., 212712013 .

pgs. ISS, 156)   As they approached the back of the house through thc alley, Nasir

observed the Honda approach them and stop ncxt to them in the middle of the alley.

(N.T., 212712013, pgs. 156.159) Nasir then heard three shots and saw that Mr. Members,

who was stundi ng next La him, had been shot (N.T., 2127120 I 3, pgs. ISO, 160)

       Mr. Seagull Mok testified that on November 1, 2011, whi le dropping his car off in

front of Vyreak Oum's house for repairs, he observed a black Honda Accord with two

occupants pull up in front of the house.        He described the car as having ';purple"

headlights and a loud muffler. He testified that one of the occupants's cxited the car and

asked him where Vyreak was. (NT., 31112013, pgs. 9- 12) He described this person as

being "kind of mad about something" and saying he "was going to fuck the bull up, or

somcthing like thaL " (NT., 3/112013, pgs. 12, 13) After Utis cxchange, this person got

back in and the car left the scene. ).1r. Mok testified that, approx.imately five minutes

later, he heard gun shots and the saw the Honda at the end of the block. (NT., 3/ 1120 13,

pgs. 15, 16, 21 , 22,33) Mr. Mok then called Vyreak tell ing him not to come outs ide.

(NT., 3/112013, pg. 17)

       Mr. Vyreak Oum testified that on the evcning of November I, 2011 he wenl

directly to bed at approximately 7:05 p.m. after refurning from work. (N.T., 212712013 ,

pgs. 187, 188) Sometime after goiDg to bed he was awakened by a phone call from Mr.



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Mok, who told him he was in front of his house dropping his car off for repairs and told

him "don' t come out here, there 's gunshots." (N.T., 2127/2013, pgs. 189, 192-1 95)

       Shortly after this conversation, the police arrived at his dOOf, arrested him and

took him to Southwest Detectives where he gave a fonnal signed statement.                  (N.T..

212712013, pgs. 196, 197)      In his statement Mr. Dum stated that, afte r going to bed, "I

got a phone call from a friend named Seagull Mok stating my cousin, Kanika Oum, and

ano ther guy named Sam came around in a black Honda Accord to the 7400 block of Buist

Avenue and asked for me." (N.T. , 2/27120 13 , pgs. 201, 202) "Seagull then stated that

Srun sbouted out from the passenger window, I'm go ing to kill this --['m go ing to kill thc

boy while they were in the car." (N .T. . 2127120 13, pg. 205) On concl uding the call , he

stated: "Seagull then told me not to come outside and hung up." (N.T., 212712013, pg.

208)

       Mr. Own further testified that he had seeu Defendant in possession of a gun prior

to the shooting of Mr. Members. (N .T., 2127(2013, pgs. 2 19, 223) However. Mr. Oum

equi vocated as to when, simply sayi ng it was "sometime: before the incident." (N.T.,

2127120 13, pg. 226)

       Detective Robert Conway testified that he was the assigned investi gator fo r the

investigation of the shooting of Mr. Members. He testified that Vyrcak. Oum was initial ly

identified as a possible suspect in the shooting and was brought to the Soulhwe.c;t

Detectives Division for questioning on November 2, 20 11 at approximately 2:45 am. as

part of his investigation. (N .T ., 212812013 , pgs. 31 , 32, 40 , 45 , 46) He also testified that

Mr. Oum wns initial ly interviewed by Detective Pal'k. (N.T., 212812013, pgs. 46. 47. 59)




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            Detective Conway testified that on November 2, 2011 , at approximately 7:00

     p.m., he took a second fo llow.up written signed statement from Mr. Oum.            (NT.,

     2/28/2013, pgs. 46, 47, 59) Detective Conway testified that when he asked him i[hc had

     evcr seen Defendant "in possession of any ftrcanns," a Mr Ourn responded: «H was either

     at my house or at the Cambodian Temple about three weeks ago when he called me and

     asked to talk to my brother. He asked me to pick him up and come over to the house and

     chill because he was depressed about his girlfriend. We were inside of the temple when

     he pulled out n Chrome gun from below his belt buckle and whipped it down and put it

     back·· I'm sorry, wiped il dovm and put it back." (N .T., 2128/2013. pgs. 60, 61)



     DISCUSSION OF THE ISSUES RAISED

I.   THE ADMISSION OF IDENTIFrCATION TESTIOMNY WAS RELEVANT AND

     PIWBATIVE.

            Tn his firs t complaint, Defendant complains: "The Court crred by allowing Vyreak

     OUm to testify to hearsay statement made to him by Seagull Mok."            In his second

     complaint, Defendant complains: "The COUrt committed reversible errOr by allowing the

     Commom....ealth to call undue attcntion to Vyreak Oum 's prior statements by erroneously

     allowing mul ti ple Commonwealth witnesses to offer hearsay testi mony about Vyrenk.

     Own' s statements, which in and of themselves contained cven more hearsay statements."

     Defendant's complai nts misstate the record. Vyrcak Oum did testify that he received a

     phone call inunediately after the shooting from Seagull Mok. Only one othL!r witness,

     Detective Deayoung Park. who took a s igned statement from Mr. Oum, testified with

     regard to the phone call from Mr. Mok. Defendant's complaints are without merit.



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       Defendant's complaint implicates his right to confrontation under the 6th

Amendment under !.he United Slates Constitution and Article I, § 9 of the PerulsyLvania

Constitution. Thc Supreme Court of PennsyLvania, in COllllllon wealth v. B rady, 5 10 Pa.

123. 507 A2d 66 (Pa. 1986), held that out of court testimonia1 statements made by non-

party witnesses are admissible as substantive evidence if such witness is available to

testify. Brady held : "The simple fact is that ' the usual dangers of hcarsay are largely

nonexistent where the witness testifies at trial. California v. Greell. SlIprfl at 399
                                                  I                                      u.s.
/ 55, 90 S.O. at /911. By hypothesi s in these situations. (he out-of-court declarant is now

a witness in-collrl where he or she is placed under oath, subject to cross-examination and

under observation by the finder of fact. See Common wealth v. Thil'kield, supra at 502

Pa. 542, 467 A,2d 323 (McDennott, 1. dissenting: 'the fact that [the oath and Cross-

examination requirement] are supp lied in u\e current trial defuses hearsay concerns and

provides the ract-finder with ample opportunity to determine truth.'). Indeed, the cross-

examination lo which a recanting witness is subjected will likely be meaningful and

vigorous since the witness is already 'on the spot' in having to explain the discrepancies

between earlier statements and direct testimony, or deny that the earlier stateme nts were

made at all." [d. 507 A.2d at 69 (In accord Commonweulth v. Mollelt, S A.3d 291 (pa.

Super, 2010); Commotr wenlth v. Charlloll, 906 A.2d 554 (pa. Super. 2006)

        The recently amended Pennsylvania Rules of Evidence CPa.R.E,) provide in part

al Rule H03.1 "The following statements arc not excluded by the rule against hearsay if

the declarant testifies and is subject to cross-examination about the prior statement:

"(1) Prior Inconsistent S tatcmcnt of Declar:mt-W irness. A prior statement by a

declarant-witness that is inconsistent with the declarant-witness 's testimony and: ... (B) is



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a writing signed and adopted by the declarant.. ...(2) Prior Statement of Identification

by Declarant-Witness. A prior statement by a dedamnt·witness identifying a person or

thing, made after perceiving the person or thing, provided that the declarant-witness

testifies to the making of the prior statement."

       The only witness to identify Defendant as thc driver was Seagull Mok. Neither

the victim of the shooting, Mr. Members, nor his companion, Nasir, was able to identify

the drive r of the car involved. Mr. Dum's testimony that he received a eall from Mr.

Mok telling him that, Defendant. his cousin, had been in front of his house looking      rOT


him and not to come out because of gun shots clearly relates to the identity of one of the

perpetrators. (N.T., 2127/2013. pgs. 193, 194, 202) Mr. Oum 's testimony Ulal Mr. Mok

had seen lhe car involved in the shooting and could identify its occupants is clearly

admissible pursuant to Pa.R.E. 803.1(2).

        Detective Park testified that b.e took a signed written statement from Mr. Qum on

November 2, 2011 , shortly afier Mr. Members was shol. (N.T., 212812013, pgs. 81 , 84)

Detective Park also testified that when he asked him what he     kzlCW   about the shooting

Mr. Own responded that he had received a phone call from Mr. Mok who told him:

"Kinika Dum and another Asian guy named Sam came around in a black I'fonda Accord

to the 7400 block of Buist A venue and asked for me . Seagull said they didn't say why

they were looking for me, but Seagull told them that he didn't know where I was. Seagull

Ihen said that Sam shouted out from the passenger's side window, <I'm going to kill the

boy' . whilc they were in a car. Seagulllhen said Kinika drove away. Within a minute

Seagull said he heard gunshots coming from my cousin, Kinika's, Honda Accord . St:agull

lold me thal he got into one of his friend's car and left the area. Seagull then told me not



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to come outside and he hung up." (N.T., 212812013 , pgs. 87- 89) When asked if Mr.

Mok told him who was driving the car, Mr. Oum responded: " My cousin, Kinika Oum,

and Sam was the front passenger,"             (N.T., 2128/2013 . pg. 90)         Detcctive Park 's

testimony was confined to the written statement he took from Mr. Oum, since Mr. Mok

did appear and testify, it was clearly admissible pursuant to Pa.R.E. 803.[(1 )(B).

       Prior to admiuing the testimony of both Mr. Oum and Detective Park, the Court

made it clear that the testimony   \'IaS   being admitted solely on the condition that Mr. Mok

\vouJd in fact testify and be subject to Cross examination. (N.T., 2/27/20 13, pg. 193)

(N.T., 212812013 , pgs. 82. 88) Prior to permitting the testimony of Detective Park to

proceed regarding the statement he took from Mr. Oum as it pertained to the call from

Mr. Mok. Ute Court cautioned the jury; "As you will recall, we went through this when

Vyreak Oum testified. And what I told you at that time was that these statements by Mok

were admissible only if Mok comes in and appenrs before you and testifies before you.

Otherwise. it's hearsay and they can't come in . And at that time I overruled the objection

of defense counsel saying that somebody has to testify first. And we don't bring in thn:e

or four witnesses and have them a\1 testify at the same time. And the DA said that Mok

wou ld be in, so we're waiting to see. Until then, you can listen to what he says." (I\".T ..

212812013, pg. 88) Mr. Mok did in fact testify and was subj ect to cross examination by

Defendant.

       "Questions concerning the admissibility of evidence lie within the sound

discretion of the trial court, and we wi ll not TCverse the court's decision on such a

question absent a clear abuse of discretion." COl1ltlWllwealtl,    II.   lvla/olley, 876 A.2d 1002,

1006 (Pa. Super. 2005) "An abuse of discretion is not merely an error in judgment, but



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an 'overridi ng misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the resulL or bias, prejudice, ill-will or par.1iality, as shown by the

evidence or the record.'"   Commonwealth v. Flamer, 53 A.3d 82, 86 (pa. Super. 2012)

citing Commollwealtft v. Cascarfio, 981 A.2d 245, 249 (pa.Super.2009) OUT Superior

Court in Commollllleoltl, v. fo/tIIson, 758 A.2d 166, 173 (pa. Supcr. 2005), held: "The

basic requisite ror the admission of any evidence in a case is that it be competent and

relevant. lbough relevance has nol been precisely Or universally defined, the l:ourts of

this Commonwealth have repeatedly stated that evidence is adm issible if, and only if, the

evidence logically or reasonably tcnds to prove or disprove a material fact in issue, tends

to make such fact more or less probable, or affords the basis fo r or supports a reasonable

inference or presumption regarding the existence of a material fact." (internal citations

omillcd)

        Pa.R.E. at Rule 403 provide that "The court may exclude relevant evidence if its

probative value is ouLweighed by a danger of one or more of the following: Wlfair

prej udice, confusing the issues, mjsleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence. "Evidence is not unfairly prejudicial simply

because it is harmful La the defendant's case.      Rather, excl usion of evidence on this

ground ' is limited to evidence so prejudicial that it would inflame the jury to make a

decision based upon something other than the legal propositions relevant to the case ... '

Commonwealth v. Foley, 38 A.3d 882, 891 (Pa. Super. 2012)

       The testimony of both Me. Own and Detective Park was obvious ly " harmful to

Defendant but was not " unfairl y prejudicial" to him. This is particularly so in light of the

admission into evidence, without objection, of transcripts of phone conversations of



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Defendant's co·defeodan, recorded while he was incarcerated awaiting lrial. In the first

transcript, Defendant tells the party on the other end: "Yeah. The bull , Seagull from

Soulh Philly. He came thc first time, but he switched it. He made a different statement,

bUll can' t Jet him show Up and shit." (N.T., 2128/2013, pg. 108) The transcript from yet

another conversation revealed:

        Defendant: "Fucking nut ass Seagull made a statement on me, 100."
        Male: "Yeah? Want me to go and talk to the nigga? Want me to go talk to
        him?"
        DefemhlOt: "We already got somebody to talk to him, but that bitch ass
        nigga came to court last time, but now we're trying to get somebody to talk
        to him to tell him not to come to court."
        Male: "Yeah, they' ll do it." (Inaudible.)
        Ocfcod:lUt: "Man, in do get out of here. I'mma ruck that nigga up ."
        (N.T., 2128/2013, pg. 109)

II is clear from the transcripts that Defendant was attempting to prevent Mr. Mok from

testifying or, at   me very least, influence his testimony as well as that orMr. Qum.     The

testimony of Mr. Qum , which was corroborated by that of Detecti ve Park, is relevant to

the identity of the occupants of the Honda and portrays Mr. Mok' s present sense of his

observations before anyone had an opportunity       lO   intimidate him or otherwise innuence

his testimony.



n.      TESTIMONY            OF     Dn'EN J)A:'fPS         PRIOR      BAD     ACTS      WAS

        ADMISSABLE.

        Defendant in his second complaint states, "The COlli1 erred by aJlowi ng me

Commonwealth to elicit testimony from Vyreak: Qum about seeing Defendant with a

handgun in a prior, unrelated incident." Defendant's complaint is without merit.




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       Pa.R.E. Rule 404 provides in part: (b) Crimes, Wrongs or Otber Acts.

(2) ...... 11tis evidence may be admissible for another purpose, such as proving motive,

opportunity, inlent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident. In a criminal case, this evidence is admissible only if the probative value of the

evidence outweighs its potential for unfair prejudice.       (3) Evidence of other crimes.

wrongs, or acts proffered under s ubsection (b)(2) of this rule may be admitted in a

criminal case only upon a showing that the probative value of the evidence outweighs its

potential for prejudice." In CommnmtJealllr v. il1elelldez·Rodriguez. 856 A.2d 1278,

1283 (Pa. Super. 2004)   Ollr   Superior Court held: "It is a'Ciomatic that evidence of prior

crimes is not admissible for the so le purpose of demonslrating a criminal defendant's

propensity to commit crimes. This rule is not without exception, however. Evidence may

be admissible in certain eirewnstanecs where it is re lcvant for somc other legitimate

purpose and not utilized solely to blacken the dcfendant's character."        Evidence that

Defendant was seen in possesSion of a gWl prior to the shooting is "admissible, as it tends

to prove the means to commit the crime." Commrmweallh v. BrolVn, 538 Pa. 410, 42t ,

648 A.2d 1177, 1182 (1994) A weapon shown to have bccn in a defendant's possession

may be properly admitted into evidence even tbough it cannot be identified positively as

the weapon used in committing a cri me; it may tend to prove that the dcfendant had a

weapon si milar to the one used." Commollwealllr v. Lark, 3 16 Pa. Super. 240, 254, 462

A.2d 1329. 1336-37 (1983)         There is no "bright-line" I.hreshold determining when the

prior acts become too remote in time to be admi ssible pursuant to Rule 404.

Commntlwealtll v. Reed, 990 A.2d 1158, 1168 (Pa. 2010)




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•



           On direct examination Vyreak Own testi fied that he had secn Defendant possess a

    gun prior to the shooting of Mr. Members but equivocated as to when this occurred.

    (N.T., 2128/20 13 , pg. 223)   (0   his written statement to Detective Conway he clead)' stated

    that he had seen Defendant with gun approximately three weeks prior to the shooting.

    (N.T., 212812013, pg. 223) Defendant' s possession of a gun within a period of three

    weeks prior to the shooting is sufficiently close in time to demonstrate his intent, the

    absence of mistake or accident, and a common scheme or plan.



    Ill.   TESTIMONY AS TO WITNESS' STATE OF MIND WAS ADMISSABLE.

            Defendant ill his fourth compluinl states; "The Court' erred by aJlowing the

    Commonwealth to elicit testimony from Seagull Mok about Defendant' s brother telling

    him to nolcome to court." Defendant 's complaint is without merit.

            "The term ' hearsay' is defined as an out-of-court statement, which is offered in

    evidence to prove the truth of the maEtcr asserted . ... Pa.R.E.801(c). Hearsay statements

    are generally inadmissible unless they fall under an enumerated e.xccption, Pa.R.E. 802.

    An out-ot:.court statement is not hearsay when it has a purpose other than La convince the

    fact finder oftlle truth of the statement." CommoJlwealt" v. BlIsa"et, 54 A,3d 35, 68·69

    (Pa, 2012) (internal citations om itted)

            Prior to presenting testimony of the second day of trial, February 28 , 2013, the

    Commonwealth requested that the Court issue a beneh warrant to secure the presence of

    Mr. Mok the following day. Counsel tor the Commonwealth, Mr. McCool, advised the

    Court thaI, although Mr. Mok had agreed to appear that day he was not present in the




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courtroom. He further adviscd the Court that when he sent police officers to bring him to

court, they were advised by his wife that she hadn 't seen him. (N.T" 212812013, pg. 5)

       When Me. Mok did appear on the third day of lriaJ, March t, 20 13. he testified

that he failed to appear the previous day because he   W'd S   "scared" and that he had been

told not to come to court by Defendant's "brother" and "a couple other friend"." (N.T.,

212812013, pgs. 6, 7) TIle Commonwealth offered this testimony not for the truth of the

matter but for cohis slate of mind, how hc's feeling, what pressure is being placed on him

not to be here today." (N.T., 212812013, pg. 6)

       This testimony was espeCially relevant in light of the evidence of the phone

transcripts admitted the previoLts day which specifically mentioned Mr. Mok.              On

admilting these transcripts , the Court cautioned the jury: "Just a reminder, whilt you just

heard is only coming from one defendant. Il's only about the one defendant You can

really only use it with regard to the one defendant. Those are not the words of Kinika

Oun1, ilIld it wasnrt introduced as evidence against Kinika Qum. Tt's only evidence

against Samncang Sin."



Ill.   COUNSEL FOR THE COMMONWEALTH'S COMMENT DID NOT

       WARRANT A MISTRIAL.

       Defendant in his fifth complaint states, "The prosecutor committed prosecutorial

misconduct Ulat warranted a mistrial when during closing argument he impermissibly

conuuented on Defendant's burden of proof and right to remain silent." Defendant's

complaint is without merit.




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         A defendanfs Motion for a Misuial is provided for in Pennsy lvania Rules of

Criminal Procedure (Pa.R.Crim.P.) at Rule 605 (8) which provides: "When an event

prej udicial to the defendanl occurs during trial only the defendant may move fo r a

mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge

may declare a mistrial only for reasons of manifest necessity."            "Every unwise or

irrelevant remark made in the co urse of the trial by a j udge, a witness, or counsel, does

noL compel the grantin g of a new trial. A new tria l is required when the remark is

prejudi cial ; that is. when it is of such a nature or substance or delivered in s uch a manner

that it may reasonably be sai d to have deprived the defendant of a fa ir and impartial

tria!." Commol/weallh v. Goosby, 450 Pa. 609, 301 A.2d 673 ( 1973).

         The Superior Court of Pennsylvania bas discussed the issues to be considered in

the granting of a mistrial. [n Commonwealth         Y.   Hudson,   955 A.2d 103 1, 1034 (Pa.

Super. 2008), citing Commonwealth v. Tej eda, 834 A.2d 619, 623 (Pa. Super. 2003) our

Superior Court held that "A motion for a mistri al is within the discretion of the trial court .

[AJ mistrial (upon motion by one of the parties1 is required only when an incident is of

such a nature th at its unavoidable effect is to deprive tlle appellant of a fair and impartial

trial.   II is within the trial court's discretion to determine whether a defendant was

prejudiced by the incident that is the bas is of a motio n tor a mistrial. On appeal, our

standard of review is whether the trial court abused that discretion.            An abuse of

discretion is more than a n error of judgment. On appeaJ, the trial court will not be fo und

to have abused its discretion tmless the record discloses that the judgment exercised by

the trial court was manifestly unreasonable, or the result of partiality, prej udice, bias, or




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ill-will."   Hudsoll concluded the "inquiry into whether prejudice has accrued is

necessarily a fact specific one." [d., at 1034.

        Our Superior Court, in Commoll wealth v. Bracey. 831 A.2d 678, 682 (Pa. Super.

2003). citing Commolllvealtfl    I'.   S tilley, 455 Pa. Super. 543, 689 A.2d 242. 250 (Pa.

Super. 1997), held that "A mistrial is an 'ex lreme remedy ... [that] , ,. must be granted

only when an incident is of such a nature that its lUlavoidable effect is to deprive

defendant of a f..1ir trial. ' A trial court may remove taint caused by improper testimony

through curative instructions. Courts must consider all surrounding circumstances before

finding that curative instructions were insufficient and the extreme remedy of a mistrial is

required, The circumstances which the cowt must consider include whether the improper

remark was intentionally elicited by the Commonwealth, whether the answer was

responsive to the question posed, whether the Commonwealth exploited the reference,

and whether the curalive instruct jon was appropriate," (Citations omined.)

         "Because a criminal trial is an adversary proceeding, the prosecution as well as

the defense must be allowed rea.<;;onablc latitude in presenting its case to the jury."

Commollwe.alth v. Paddy , 800 A.2d 294, 316 (pa, Super. 2001)              A prosecutor is

generally allowed to vigorous ly prescnt and argue his case, as long as the comments are

supported by evidence and contain inferences which are reasonably derived from that

evidence. It is well-settled law mat attorneys' statements or questions at trial are not

evidence. The foclls of this Court's consideration of claims regarding prosceutonui

misconduct is to detennine whether the defendant was deprived of a fair trial and not

whether the defendant was deprived of a perfect trial." Commo" wealth v. Kemp , 753

A.2d 1278, 1282 (Pa. 2000)         Our Supreme Court laler explained that " proseculorial



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misconduct docs not occur unless the unavoidable effect of the comments at issue was to

prejudice the jurors by fonning in their minds a fixed bias and hostility toward the

defendant, thus impeding their ability to weigh the evidence objectively and render a true

verdict."   Commonwealtlt v. Cuevas, 832 A,2d 388, 394 (Pa. 2003) Furthermore. the

"Commonwealth may 'fairly respond' to closing remarks made by the defense."

Commollweal/II v. Brown, 449 Pa Super. 346, 357-58, 673 A.2d 975, 981 (Pa. Super.

1996) Additionally, "comments by a prosecutor, which would otherwise be in error, have

been held not to be erroneous if made in response to a defense argument." BrowlI, Td.,

673 A.2d at 981 , citing COl1ullo",,,enltlt v. Fielder, 417 Pa. Super. 455 , 612 A2d 1028

(Pa. Super_ 1992)

        Defendant in his complaint mischaracterizes counsel for the Commonwealth's

closing argument. During his closing argument counsel for Defendant stated: "Four

wilnesses, half or that is two. 'lbey called two. They called Nasir and Quenzel." (N.T.,

3/ 112013, pg. 86)   In response to tbis comment in his closing argument, counsel for the

Commonwealth stated:

        "Ladies and gentl emen, I want to just briefly address a couple things that
        tlll; derense attorney said to you about the witnesses, that 1 only called --
        told you ha1f the story ....... you know, it's so funny and it's so
        disingenuous for lhe defense attorney to get up here and say that, that I
        gave you half the story as if somehow he's handcuffed. Folks, the burden
        of proof is on me. It never shifts. It's my burden to prove my case. BUL
        you know what, folks, it is --it's fairness. It's all aboUl fairness. If 1 don't
        call witnesses, there's nothing preventing the defense aLtorney from
        subpoenaing people into the courtroom. If he thinks I'm not telling the
        whole story or I'm not giving you the whole truth or I'm misrepresenting
        something or hiding something, he can call witnesses. He could have
        called them. He could have called lhem_" (N T, 31112013, pgs. 117, liS)




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       At thisjum·ture
                 .     counsel for Defendant objected. In response, the Court instructed

the jury:

       "THE COURT: You should understand that what the DA is saying and
       that the law says, is that the defense nevcr has to call any witnesses, never
       has to produce any evidence. (NT., 31112013, pg. 118)


Counscl for Defendant did not object further to the Court's instruction.

        It is dear that in his closing counsel for the Commonwealth never intended for the

jul'}' to believe that the burden of proof had somchow shifted to Defendant. In prefacing

his remarks he made it clear that "the burden of proof is on me. It never shifts. It's my

burden to prove my case."    The Court's cW<ltive instruction to the jU!)' was more than

sufficient to address any taint which may have been occasioned by counsel 's remarks.



IV.     DEFENDANT'S SENTENCE WAS NOT PROPER.

        Although Defendant, in his statement of errors, did nol complain the Court erred

in sentencing appellant for two inchoate crimes, i.e. attempted murder and conspiracy to

commit altempted murder, it may be raised sua sponte, Although this issue may be

deemed waived because Defendant did not object, the Court recognizes that a complaint

addressing the legality of tl sentence may be raised at any lime, Commonwealth v. Ford,

315 Po. Super. 28 1, 46 1 A.2d 1281 (po. Super. 1983) 18 Pa.C.S.A. § 905 provides in

part: "Grading of criminal attempt, solicitation and conspiracy (a) GRADfNG.- Except

as otherwise provided in this title, attempt, solicitation and conspiracy are crimes of the

same grade and degree as the most serious offense which is attempted Or solicited or is an

object of the conspiracy." Furthennore, 18 Pa.C.S.A. § 906 provides: "A per.son may not

be convicted of more than one of the inchoate crimes of criminal attempt, eMina!


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solicitation or criminal conspiracy for conduct designed to commit or to culminate in the

conunission of the same crime."

       At the conclusion of his trial, Derendant was found guilty of both attempted

murder and conspiracy to comm it murder all arising from the single act of the shooting of

Mr. Members which resulted in serious bodily injury. 18 Pa.C.s.A. § 1102 provides in

part: "(c)   A{tempt~   solicitation and conspiracy.--Notwithstanding section 1103(1)

(relating to sentence of imprisorunent for felony), a person who has heen convicted of

attempt, solicitation or conspiracy to comm it murder. murder of an unborn child or

murder of a law enforcement officer where serious bodily injury results may be sentenced

to a term of imprisoruncnt which shall be fixed by the court at not more than 40 years.

Where serious bod ily if\jury does not result, the person may be sentenced to a term of

imprisonment which shaH be fixed by the court at not more than 20 years: " Defendant

was subsequently senlenced to incarceration in a s tate correctional institution fo r a period

of 3 to 8 years on the charge of attempted murder a.. well as a consecutive tenn of

eonfmernent of 2 to 5 years on the charge of conspi racy to commit murder, for a totai

combined period of incarceration of 5 to 13 years on these two charges, well within tne

maximwn allowable on either one of these charges. 10 vie'.'1 of these circwnstances, the

Court recommends that this matter be remanded only ror the purpose of resentencing

Defendant.




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•


    CONCLUSION

           The Court finds that its evidentiary rulings are supported on the record. 'lne

    Court also finds thal Defendant's sentencing on two inchoate offenses is improper and

    recommends that this matter be remanded for re-sentencing.




                                               BY THE COURT:




    Fcbruary7,20l4
                                                                 ES J. CUNN   GIlAM, ill




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