J-A16028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KHALEEM HODGES                             :
                                               :
                       Appellant               :   No. 2897 EDA 2016

             Appeal from the Judgment of Sentence April 29, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009639-2014,
                           CP-51-CR-0009640-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 21, 2018

        Khaleem Hodges appeals from the judgment of sentence, entered in the

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

two counts of aggravated assault,1 one count each of possession of an

instrument of crime (PIC),2 carrying a firearm without a license,3 and carrying

a firearm in public in Philadelphia.4 Upon careful review, we affirm.

        The trial court summarized the relevant facts as follows:

        On June 16, 2014, Kione Gary told his mother’s boyfriend, Michael
        Fornwald, that the bicycle Fornwald had bought for him had been
        stolen after Gary lent it to his friend Kashad Dublin. Fornwald
____________________________________________


1   18 Pa.C.S. § 2702(a)(1).

2   18 Pa.C.S. § 907(a).

3   18 Pa.C.S. § 6106.

4   18 Pa.C.S. § 6108.
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     took Gary to 22nd and Snyder [in Philadelphia] to pick up Dublin.
     Fornwald [then] drove the boys to 20th and Morris where they saw
     a young man that looked familiar to the boys. Fornwald parked
     the car at the northeast corner of the intersection and got out to
     speak to the young man who was standing at the southwest
     corner. [Hodges] was sitting on the northeast corner with three
     to four other people.

     Fornwald then asked [Hodges] if he knew what happened to
     Gary’s bicycle, and [Hodges] told him that his friend took it from
     Dublin because he (Dublin) owed his friend $20. Fornwald offered
     to pay the $20 in order to get the bicycle back. [Hodges] then
     told Fornwald that the bicycle was at Moore Street and he would
     go get it. Fornwald said he would meet [Hodges] there so he could
     put the bicycle in the car. Fornwald got into his car to move it and
     saw [Hodges] two to three feet in front of the car raise his arm
     holding a gun and fire three times at the car. Fornwald backed
     the car up and drove to Gary’s mother’s house. When they
     arrived, Fornwald realized Gary had been shot and told Gary’s
     mother to call the police.

     Detective John Logan was performing an unrelated investigation
     in the area when he drove up to 20th and Morris. He observed
     Fornwald backing his vehicle up and saw [Hodges] running along
     the sidewalk firing a gun at Fornwald’s vehicle. Detective Logan
     followed [Hodges], who was walking with another male, and
     watched him enter a house at 2031 Mountain Street. Detective
     Logan radioed for backup and Sergeant [ ] Weber arrived first. As
     the backup officers were arriving, Detective Logan saw Anthony
     King exit the house and detained him with the assistance of other
     officers. Sergeant Weber ordered that a barricade be set up at
     the scene. Approximately thirty officers, including a S.W.A.T.
     team, arrived at the scene. Officer Thomas Gill entered the
     property as part of an entry team and recovered a revolver and a
     semi-automatic handgun from a golf bag found in the kitchen.
     There was no one in the property when the officers entered.

     Meanwhile[,] Gary was taken to the hospital and Fornwald was
     taken to 24th and Wolf to give a statement [to police]. Detectives
     John Landis and Mike Ferry later took Fornwald to the intersection
     of Point Breeze and Mifflin Streets where officers had stopped
     King. Fornwald stated that King was not the person who shot at
     his vehicle. Fornwald returned to the police station the next day
     and spoke with Detective Robert Spadaccini. Detective Spadaccini
     showed Fornwald a photograph and asked if he recognized

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       anyone. Fornwald identified [Hodges] in the photograph as the
       person who shot at him. Detective Spadaccini then showed
       Fornwald a photo array, and Fornwald again identified [Hodges]
       as the person who shot at him.

Trial Court Opinion, 6/1/17, at 4-6 (internal citations omitted).

       Detective Logan testified that he saw two men flee into a home at 2031

Mountain Street after one of them shot at the car containing the three

complainants in this case. Detective Logan then observed King exit the same

residence.    When confronted by Detective Logan, King gave contradictory

statements regarding a home invasion he claimed to have just experienced,

and stated he had gun residue on his hands because the gunmen had left their

guns in his residence, which he had hidden in a golf bag in his kitchen. King

was detained and questioned, although ultimately he was released uncharged.

Hodges claimed at trial he had been misidentified, and that King was the

shooter. N.T. Trial, 2/22/16, at 168. King’s statements were admitted at the

first trial before the Honorable Angelo Foglietta, which ended in a mistrial, but

excluded from the subsequent trial presided over by this lower court.

       On April 2, 2015, the Commonwealth filed a motion in limine to admit

Hodges’ recorded prison calls and Twitter posts. On April 15, 2015, Hodges

filed a motion to bar application of the mandatory minimum sentencing

statute5 and a motion in limine to exclude the prison tapes and Twitter posts,

as well as to preclude any references, arguments, or evidence of innuendo

____________________________________________


5 Hodges argued the mandatory minimum sentence set forth in 42 Pa.C.S. §
9712 was unconstitutional under Alleyne v. United States, 133 S. Ct. 2151
(2013).

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alleging his gang involvement. Response to the Commonwealth’s Motion In

Limine, 4/15/15, at 1.       The next day, Judge Foglietta granted the

Commonwealth’s motion in part, allowing the admission of the prison tapes

and some of Hodges’ Twitter posts.      Additionally, Judge Foglietta granted

Hodges’ motion to bar the Commonwealth from applying the mandatory

minimum sentencing statute. Judge Foglietta did not rule on Hodges’ motion

in limine to preclude any reference during the trial to Hodges’ gang

involvement.

      On April 27, 2015, the court declared a mistrial after a jury was hung

on the charges of aggravated assault, carrying a firearm without a license,

carrying a firearm in public in Philadelphia, and PIC.     On April 29, 2015,

Hodges filed a motion to bar retrial, which was denied. On May 11, 2015,

Hodges filed an interlocutory appeal to this Court, but withdrew the appeal on

November 24, 2015.

      After Hodges’ second trial, which spanned from February 17, 2016 to

February 24, 2016, a jury found Hodges guilty of the above charges. On April

29, 2016, the trial court sentenced Hodges to an aggregate sentence of fifteen

to thirty years’ incarceration, with five years of consecutive probation. Hodges

filed a motion to reconsider sentence on May 9, 2016, which was denied by

operation of law on September 7, 2016. That day, Hodges filed a timely notice

of appeal.     Hodges then filed a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. He presents the following issues

for our review:

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      1. Did[] the lower court err in granting the [C]ommonwealth’s
         motion to admit other act evidence, in violation of Pa.R.E.
         404(b)?

      2. Did[] the lower court err in preventing the defense from
         introducing at trial evidence concerning the out-of-court
         statements of Anthony King, insofar as the statements were
         not barred by the prohibition against hearsay, and barring their
         admission violated [] Hodges’ right to present a defense?

      3. Did[] the lower court err in allowing Police Officer York to testify
         at sentencing regarding [] Hodges’ supposed acquaintances
         and unrelated activity by those individuals, and to use that
         testimony against [] Hodges in imposing sentence?

Appellant’s Brief, at 4.

      Hodges first challenges the admission of his Twitter posts at trial. The

admissibility of evidence is a matter for the trial court’s discretion, and a ruling

will only be reversed for an abuse of discretion.            Commonwealth v.

Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014). “For a ruling on evidence

to constitute reversible error, it must have been harmful or prejudicial to the

complaining party,” such that the trial court’s error could have effected the

verdict in the case.       Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa.

Super. 2015).

      Evidence of a person’s character is inadmissible to “prove that on a

particular occasion the person acted in accordance with the character.”

Pa.R.E. 404(a).    However, an exception for character evidence allows its

admission in order to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”              Pa.R.E.

404(b)(2). See Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa.



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2009). The Supreme Court has held that “the trial court must decide first if

the evidence is relevant and, if so, whether its probative value outweighs its

prejudicial effect.”    Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa.

2006) (internal citations omitted).            Evidence of prior acts may also be

introduced to prove consciousness of guilt. Commonwealth v. Flamer, 53

A.3d 82, 88 (Pa. Super. 2012), citing Commonwealth v. Pestinikas, 617

A.2d 1339, 1348 (Pa. Super. 1992).

       The evidence in question was elicited to demonstrate Hodges’

knowledge of the crime.6 Hodges posted on Twitter the day of and in the two

weeks following the commission of the crime.             Hodges claims that these

Twitter posts amounted to “rhyming couplets or rap lyrics,” and were not

relevant.   Appellant’s Brief, at 19. We disagree. As the first Twitter post

relating to people being scared “around here,” was posted within an hour of

the shooting, Judge Foglietta admitted it as more probative than prejudicial,

in order to prove Hodges’ knowledge of the incident.7 N.T. Motions Hearing,

4/16/15, at 86-87. See PA.R.E. 404(b)(2). The two subsequent Twitter posts

were from over a week after the shooting; however, the trial court determined

these also served as more probative than prejudicial in determining the
____________________________________________


6 Specifically, the Twitter posts read: “Better be prepared around here, a lot
of people scared around here[,]” “What’s so special bout ya 38 to my glock
9,” and “We beefing? Why tweet about it? We can have a shootout and let em
read about it!”

7  Judge Foglietta was asked to, but did not, file a supplemental opinion
explaining his pre-trial ruling. Trial Court Opinion, 6/1/17, at 6. His reasoning
is in the record. See N.T. Motions Hearing, 4/16/15, 86-87, 92, and 95.

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absence of mistake, motive, and identity of Hodges as the shooter.        N.T.

Motions Hearing, 4/16/15, at 92, 95. See Pa.R.E. 404(b)(2). These posts

were admitted to reference facets of the crime, such as scaring people in the

neighborhood, the type of gun used, and shooting to settle disputes.

Accordingly, we find it was not an abuse of discretion for the trial court to

admit these Twitter posts. Antidormi, supra.

      Hodges next argues that the trial court erred in declining to admit the

out-of-court statements of Anthony King, which “violated [his] right to present

a defense.” Appellant’s Brief, at 21. He also argues that King’s statements

were relevant, in that they demonstrated King’s misstatements about his own

knowledge of and involvement in the shooting, and that the statements had

been admitted at the previous trial before Judge Foglietta.

      Hearsay is an out-of-court statement offered for the truth of the matter

asserted. See Pa.R.E. 801(c). Hearsay is not admissible unless it falls under

an exception provided by the rules of evidence. Pa.R.E. 802.

The trial court concluded:

      Simply put, King’s statements were hearsay. King’s statements
      were made out of court to Detective Logan on June 15, 2014. The
      Commonwealth had no opportunity to cross-examine King about
      his statements. [Hodges] offered them to prove the substance of
      the statements—namely that King told Detective Logan where to
      find the firearms in his house and that he likely had gunshot
      residue on his hands from handling firearms.




                                     -7-
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       Furthermore, although King was unavailable to testify at trial
       because he was deceased,8 his statements were not admissible
       under any [Pa.R.E.] 804(b) exception. They were . . . not made
       when King was under belief of imminent death. [See Pa.R.E.
       804(b)(2).] They were not genuinely against his penal interest.
       [See Pa.R.E. 804(b)(3).] Although King told Detective Logan that
       he may have gunpowder on his hands, King’s statement was not
       against his penal interest relating to the actual shooting.
       Detective Logan knew that King was not the shooter because he
       had personally observed the shooting. Logan never arrested King,
       nor was he suspect of the crime. King’s merely explaining why he
       may have had gunpowder on his hands did not expose him to
       criminal liability as the shooter. Hence, King’s statements were
       not truly against his interest. Neither were they concerning his
       personal or family history. [See Pa.R.E. 804(b)(4).] Finally, they
       were not admissible against [Hodges] because he had wrongfully
       caused King to be unavailable (i.e., the forfeiture doctrine). [See
       Pa.R.E. 804(b)(6).] Therefore, King’s statements were
       inadmissible hearsay and the court did not err when it allowed
       [Hodges] an opportunity to find an exception under which they
       could be admitted.

Trial Court Opinion, 6/1/17, at 8-9. We agree. Despite Hodges’ argument to

the contrary, the statements were offered for the truth, in that Hodges wanted

the jury to believe King did have gun residue on his hands, and that he knew

where the guns were located. Neither at trial nor on appeal did Hodges argue

an exception that would render this hearsay admissible. Thus, the trial court

did not err in refusing to admit King’s statements to Detective Logan.

       Lastly, Hodges argues the trial court erred in allowing a police officer to

testify at sentencing regarding Hodges’ involvement in gang activity in the

surrounding neighborhood. Hodges claims that this evidence from Officer York

was impermissible and tainted the court’s sentence. Appellant’s Brief, at 30-
____________________________________________


8Pa.R.E. 804(a)(4). King was also deceased at the first trial, but that was
unknown to both parties at the time. N.T. 2/18/16, at 7.

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31. It is well-established that “a proceeding held to determine sentence is not

a trial, and the court is not bound by the restrictive rules of evidence properly

applicable to trials.” Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.

Super. 1999). As such, a court may hear “any relevant information for the

purposes of determining the proper penalty.” Id. In crafting an individualized

sentence, a trial court must balance factors such as “the nature and

circumstances of the crime, the effect on the community, and the defendant’s

circumstances and needs.”     Commonwealth v. Ali, 149 A.3d 29, 38 (Pa.

2016); see also 42 Pa.C.S. § 9721.

      As Hodges’ neighborhood is known to be violent, and the perpetrators

of the violence are largely members of the gang of which Hodges self-

identified as a member, the testimony from Officer York served as background

information for the trial court at sentencing. In this instance, the information

about the nature of Hodges’ neighborhood, and the gang activity there, served

to inform the court’s consideration of the effect of the sentence on the

community. The trial court stated:

      York’s testimony about area gang war shootings and homicides
      was not unfairly weighted against [Hodges]. The fact that
      [Hodges] shot multiple times at a vehicle that was occupied by
      three people, two of [whom] were children, was more dispositive.
      The fact that he shot a child was also seriously considered.

Trial Court Opinion, 6/1/17, at 14. Therefore, we find no abuse of discretion

in the admission of the testimony of Officer York at sentencing.        Medley,

supra.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/18




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