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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
DESHAWN KINSLER,                          :            No. 767 EDA 2014
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, January 31, 2014,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0010639-2012


BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED AUGUST 10, 2015

        Deshawn    Kinsler   appeals   from   the   judgment   of   sentence   of

January 31, 2014, following his conviction of two counts of aggravated

assault and one count each of carrying firearms on public streets or public

property in Philadelphia in violation of the Uniform Firearms Act (“VUFA”)

and possessing an instrument of crime (“PIC”).1 We affirm the convictions

but vacate the judgment of sentence and remand for resentencing.

        The trial court, sitting as finder-of-fact in this matter, has summarized

the facts as follows:

                    On June 7th, 2012, on the 1500 block of
              North 24th Street in Philadelphia, at roughly 9:15 PM,
              Alphonso Miles testified he was watching television
              when he heard a loud crowd of people outside of his
              home.    Miles stepped outside to see what was

1
    18 Pa.C.S.A. §§ 2702, 6108, & 907, respectively.
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          causing the commotion, and saw Appellant and
          Joseph Donaldson III arguing. All three men are
          associated with rival gangs — Miles and Donaldson
          are members of The Waterboys, who operate within
          the Blumberg Projects, while Appellant is a member
          of the Buckboys, who are based on the 1800 block of
          Bucknell Street. Appellant is also associated with a
          subgroup within the Waterboys [sic] called The
          Hitout Boys.

                 Miles testified that as he stepped out onto his
          front porch, Appellant produced a gun and fired
          three to five times. Miles was struck by two bullets
          — one in the inside of his right knee and one in his
          left forearm. He was bandaged by his mother, and
          brought to the hospital by police. Donaldson was
          struck by a single bullet on his left forearm and was
          taken to Hahnemann Hospital by a passing car. Both
          were treated for their wounds and survived.

                 Detective Rocks testified that on the evening of
          June 27, 2012, Appellant was involved in a second
          gunfight, this time sustaining a gunshot wound to his
          right arm.      A female was also injured in that
          gunfight. This separate shooting allegedly involved
          himself and Joseph Donaldson III again.           After
          officers arrived and began to provide aid to
          Appellant, it was discovered Appellant was wanted
          for the June 7 shooting, and he was subsequently
          arrested. Donaldson was eventually arrested for the
          June 27th shooting.

                 At trial, the Commonwealth used social media
          evidence to establish the gang affiliations of
          Appellant and Donaldson, along with photographic
          evidence related to the shooting. They produced
          Facebook, Instagram, and Twitter posts, along with
          photographs posted to social media which had
          photographs of Donaldson’s injuries and Appellant
          flashing gang signs and posing in front of
          gang-related graffiti. Appellant posted “FREE ME N
          THE REST OF MY HIT OUT BOYZ N BUCK BOYZ,”
          among other gang-related posts to Facebook while
          Donaldson posted “The Blum stands tall” to Twitter


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               along with a picture of the view from his hospital
               room on July 8, 2012. Also on July 8 th, he posted
               multiple pictures of the gunshot wound with the
               caption “Bullet shot to the 4arm in & out. I’m
               around tho.”

Trial court opinion, 8/22/14 at 2-3 (citations to the transcript omitted).2

        Following a bench trial, appellant was found guilty of the above

offenses.      On January 31, 2014, appellant was sentenced to mandatory

minimum sentences of 5 to 10 years’ incarceration for each count of

aggravated assault, to be run concurrently.3           The trial court also imposed

consecutive sentences of 1 to 2 years for PIC and 2 to 7 years for VUFA, for

an aggregate sentence of 8 to 19 years’ incarceration.

        On February 11, 2014, appellant filed a post-sentence motion for

reconsideration of sentence, which was denied the same day.                 A timely

notice of appeal was filed on February 26, 2014.           Subsequently, appellant

retained new counsel, Donald Chisholm, II, Esq., who also filed notice of

appeal on March 11, 2014.           On March 21, 2014, the trial court ordered

appellant to file a concise statement of errors complained of on appeal within

21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. (Docket #14.)

On     April   14,   2014,   this   court    granted   prior   counsel,   William   C.

Montoya, Esq.’s motions for leave to withdraw as counsel and to withdraw



2
  The trial court’s opinion is unpaginated; page numbers are by our own
count.
3
    42 Pa.C.S.A. § 9712 (“Sentences for offenses committed with firearms”).


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the February 26, 2014 appeal as duplicative. (Docket #16.) On April 25,

2014, appellant filed a Rule 1925(b) statement.     (Docket #15.)    The trial

court filed a Rule 1925(a) opinion on August 22, 2014, addressing the issues

raised in appellant’s concise statement.4

      Appellant presents the following issues for this court’s review on

appeal:

            [1.]   WHETHER     THE    COURT  ERRE[]D  IN
                   SENTENCING DEFENDANT TO TWO (2) TO
                   SEVEN (7) YEARS ON A MISDEMEAN[]OR OF
                   THE FIRST DEGRE[E][?]

            [2.]   WHETHER THE COURT ERRED IN ALLOWING A
                   CUMULATION [SIC] OF PREJUDIC[I]AL AND OR
                   IRRELEVANT EVIDENCE AT APPELLANT’S TRIAL
                   PREVENTIN[]G HIS RIGHT TO A FAIR TRIAL[?]

            [3.]   WHETHER THE COURT ERRED AND ABUSED
                   ITS DISCRETION IN SENTENCING APPELLANT
                   OUTSIDE    THE   ADVISORY   SENTENCING
                   GUIDELINES     THUS     CREATING    AN
                   UNNE[C]ESSARY AND UNDUE PUNISHMENT

4
   Both appellant and the trial court characterize his April 25, 2014
Rule 1925(b) statement as timely filed. However, by our count, appellant’s
concise statement was due on or before Friday, April 11, 2014, the 21 st day
after the trial court’s March 21, 2014 Rule 1925 order. There is nothing in
the record to indicate that appellant was granted an extension of time within
which to file his concise statement. It appears to this court that appellant’s
Rule 1925(b) statement was untimely filed.         However, the trial court
addressed the issues raised in its Rule 1925(a) opinion and it is unnecessary
to remand.       See Commonwealth v. Thompson, 39 A.3d 335, 340
(Pa.Super. 2012) (“When counsel has filed an untimely Rule 1925(b)
statement and the trial court has addressed those issues we need not
remand and may address the merits of the issues presented.”), citing
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc). The untimely filing of a Rule 1925(b) statement is considered
the equivalent of a complete failure to file; both represent per se
ineffectiveness of trial counsel. Id. at 432-433.


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                   FOR APPELLANT AFTER FAILING TO CONSIDER
                   ALL RELEVANT FACTORS LAWFUL IN THE
                   GUIDELINES?

Appellant’s brief at 5.5

      In his first issue on appeal, appellant claims that the trial court’s

sentence of 2 to 7 years’ imprisonment for VUFA is beyond the statutory

maximum.     “If no statutory authorization exists for a particular sentence,

that sentence is illegal and subject to correction. An illegal sentence must

be vacated.” Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa.Super. 2014).

      VUFA was graded as a first-degree misdemeanor punishable by a

maximum of 5 years’ imprisonment. See 18 Pa.C.S.A. § 1104(1) (“A person

who   has   been   convicted   of   a   misdemeanor   may   be   sentenced   to

imprisonment for a definite term which shall be fixed by the court and shall

be not more than: (1) Five years in the case of a misdemeanor of the first

degree.”). Therefore, appellant’s sentence for VUFA was illegal and must be

vacated.    Furthermore, as our decision upsets the trial court’s overall

sentencing scheme, we will remand for complete resentencing.6


5
  Additional issues raised in appellant’s concise statement and addressed by
the trial court, including the weight of the evidence and waiver of his right to
a jury trial, have been abandoned on appeal.
6
  We also note that appellant received mandatory 5 to 10-year sentences for
aggravated assault under 42 Pa.C.S.A. § 9712 (committing crimes of
violence while in visible possession of a firearm). Section 9712 has been
held unconstitutional following the United States Supreme Court’s decision in
Alleyne v. United States,         U.S.    , 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013). See Commonwealth v. Ferguson, 107 A.3d 206 (Pa.Super.
2015). Although no one raises the issue, it is axiomatic that the legality of


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      Next, appellant claims that the trial court erred in allowing evidence of

his gang affiliation with the Buckboys. According to appellant, this evidence

was irrelevant, prejudicial, and constituted improper character evidence. We

disagree.

      “The admission of evidence is in the sound discretion of the trial judge,

and will not be disturbed on appeal absent a manifest abuse marked by an

error of law.”    Commonwealth v. Brown, 911 A.2d 576, 584 (Pa.Super.

2006), appeal denied, 920 A.2d 830 (Pa. 2007), quoting Commonwealth

v. Brennan, 696 A.2d 1201, 1203 (Pa.Super. 1997) (citations omitted).

      Pennsylvania Rule of Evidence 404 provides in relevant part:

            Rule 404. Character Evidence; Crimes or Other
            Acts

                                    ***

            (b)    Crimes, Wrongs or Other Acts.

                   (1)   Prohibited Uses. Evidence of a
                         crime, wrong, or other act is not
                         admissible to prove a person’s
                         character in order to show that on
                         a particular occasion the person




an appellant’s sentence is non-waivable and may even be raised by this
court sua sponte. Id. at 213 n.4, citing Commonwealth v. Hurst, 532
A.2d 865, 869 n.2 (Pa.Super. 1987) (providing that “illegality of sentence is
not waivable and may be raised by this Court sua sponte”);
Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014) (“issues
pertaining to Alleyne go directly to the legality of the sentence” (citation
omitted)). On remand, the trial court is instructed to resentence appellant
on the aggravated assault convictions without reference to any mandatory
minimum sentencing statute.


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                       acted in     accordance   with   the
                       character.

                 (2)   Permitted Uses. This evidence
                       may be admissible for another
                       purpose, such as proving motive,
                       opportunity, intent, 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.

           Pa.R.E. 404(b).

                 Our Supreme Court has explained:

                 Evidence of a defendant’s prior criminal
                 activity is inadmissible to demonstrate
                 his bad character or criminal propensity.
                 The same evidence may be admissible
                 for various legitimate purposes, however,
                 provided that its probative          value
                 outweighs the prejudicial effect likely to
                 result from its admission, . . . and an
                 appropriate limiting instruction is given.
                 One such evidentiary purpose is . . . to
                 demonstrate the defendant’s motive for
                 committing the crime charged.

Commonwealth v. Collins, 70 A.3d 1245, 1252 (Pa.Super. 2013), appeal

denied, 80 A.3d 774 (Pa. 2013), quoting Commonwealth v. Paddy, 800

A.2d 294, 307 (Pa. 2002) (citations omitted). See also Commonwealth v.

Reid, 811 A.2d 530, 550 (Pa. 2002), cert. denied, 540 U.S. 850 (2003)

(“to be admissible as evidence of motive, the prior bad acts ‘must give

sufficient ground to believe that the crime currently being considered grew

out of or was in any way caused by the prior set of facts and


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circumstances’”), quoting Commonwealth v. Schwartz, 285 A.2d 154, 158

(Pa. 1971) (emphasis supplied).

      Instantly, evidence that appellant and the victims were members of

rival gangs went to motive. Appellant was a member of the Buckboys, while

Miles and Donaldson were members of the Waterboys. It was established at

trial that the Buckboys and the Waterboys are bitter rivals and fight each

other over drug territory. This evidence helped establish a motive for the

shooting. Collins, supra (evidence that murder defendant was involved in

a drug distribution organization and that victims were involved in a rival

organization was not improper evidence of prior bad acts, since it was

relevant to show motive).

      While appellant argues that the evidence of gang activity was highly

prejudicial, we observe that this was a bench trial, not a jury trial. “Even if

prejudicial information was considered by the trial court, a judge, as fact

finder, is presumed to disregard inadmissible evidence and consider only

competent evidence.”     Commonwealth v. Fears, 836 A.2d 52, 71 n.19

(Pa. 2003), citing Commonwealth v. Davis, 421 A.2d 179 (Pa. 1980).

Indeed, the trial court remarked that, “I think as the trial judge I think I can

use that for what it’s worth. So, I’ll allow it.” (Notes of testimony, 10/25/13

at 70.) There is no merit here.

      Finally, appellant challenges the discretionary aspects of sentencing,

alleging that his aggregate sentence of 8 to 19 years’ imprisonment was



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manifestly excessive and did not take into account his rehabilitative needs or

various mitigating factors.     As we are already remanding for complete

resentencing, we need not address appellant’s discretionary sentencing

claim.7

      Judgment of sentence vacated.            Case remanded.         Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/2015




7
  We note that in his brief on appeal, appellant completely mischaracterizes
the record. For example, in his Pa.R.A.P. 2119(f) statement, appellant
claims that he had a prior record score of zero, did not possess a weapon,
did not inflict any injury upon the victims, and had no infractions during his
time spent in jail awaiting trial. (Appellant’s brief at 15-16.) In fact, the
record indicates that appellant had a prior record score of 1; that he shot the
two victims with a firearm; that both Donaldson and Miles were seriously
injured and, without prompt treatment, might have died; and that while in
jail awaiting trial, appellant incurred five infractions, including one classified
as “critical” in which he used a weapon to inflict injury. (Notes of testimony,
1/31/14 at 9-10.) The trial court also observed that after he was found
guilty, appellant was flashing gang signs in the court’s direction. (Id. at 19-
22.) Later in his brief, appellant seems to be referring to a different
defendant altogether, a “Mr. Branch.” (Appellant’s brief at 20.) Appellant’s
brief is not reflective of careful and proficient appellate advocacy.


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