J-A06043-17


                                  2017 PA Super 384

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

KHUSEN A. AKHMEDOV

                            Appellant                 No. 3443 EDA 2015


          Appeal from the Judgment of Sentence November 2, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0013582-2013


BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.

OPINION BY RANSOM, J.:                            FILED DECEMBER 08, 2017

       Appellant, Khusen A. Akhmedov, appeals from the judgment of

sentence of seventeen to thirty-four years of incarceration, imposed

November 2, 2015, following a waiver trial resulting in his conviction for four

counts each of murder in the third degree, involuntary manslaughter,

homicide by vehicle, and recklessly endangering another person.1           We

reverse in part and remand for resentencing.

       We adopt the following statement of facts from the trial court opinion,

which in turn is supported by the record. See Trial Court Opinion, 6/28/16,

at 2-10. On July 16, 2013, at approximately 10:30 p.m., Appellant drove

southbound on Roosevelt Boulevard (“the Boulevard”) in Philadelphia,
____________________________________________


118 Pa.C.S. § 2502(c); 18 Pa.C.S. § 2504; 75 Pa.C.S. § 3732; 18 Pa.C.S. §
2705.
J-A06043-17



Pennsylvania, which has a posted speed limit of 40 m.p.h. Appellant and the

driver of another car entered into a race, with each car weaving through

traffic at speeds in excess of 70 m.p.h. At times, the cars were so close to

each other that they appeared “hitched” together. At three successive traffic

lights the cars stopped, revved their engines, and raced to the next light.

Finally, both drivers approached the intersection of the Boulevard and 2nd

Street. The intersection does not have a crosswalk or signs warning drivers

that pedestrians might be present, and is not intended for foot traffic.

Further, the intersection is situated in such a way that it is difficult to see on

approach, due to a hill.

      At the intersection, Samara Banks and her three, minor children were

crossing the Boulevard. Appellant attempted to evade them but was too late

to change his course.      Instead, he struck Ms. Banks and the children.

Appellant remained at the crash site until medical personnel and police

arrived.   Ms. Banks and one of the children were pronounced dead at the

scene; the remaining two children passed away at hospitals the next day.

Multiple eyewitnesses observed the race and subsequent crash.           After the

accident, a police accident reconstructionist examined the scene and

determined the path of the collision. The officer concluded that at the time

of impact, Appellant was traveling at a minimum speed of 79 m.p.h.

      Prior to trial, the Commonwealth litigated a motion in limine seeking to

admit evidence of prior bad acts, namely, 1) an incident in Lancaster County

in which Appellant almost ran another driver off the road; 2) a Facebook

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posting in which he “reveled” in the excitement of drag racing; and 3)

Appellant’s driving record, including numerous vehicular offenses. The court

granted the motion and allowed admission of the evidence.2

       Following a bench trial in July 2015, the court convicted Appellant of

the above counts.         Appellant was sentenced to four to eight years of

incarceration on four counts of third degree murder and one to two years for

one count of REAP, all to run consecutively, for a total of seventeen to thirty

four years of incarceration. The court merged the convictions for involuntary

manslaughter and imposed no further sentence for charges of homicide by

vehicle. Appellant filed a post-sentence motion, which was denied.

       Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         The trial

court issued a responsive opinion.

       On appeal, Appellant raises the following issues for our review:

       1. Whether the evidence was insufficient as a matter of law to
       sustain the convictions for third degree murder as the evidence
       failed to establish malice on the part of [Appellant]?



____________________________________________


2  It is unclear from the record when the court granted this motion.
Appellant’s brief does not cite to the portion of the record containing this
ruling, nor does the docket reflect an order entered. Appellant’s brief
indicates that oral argument was held, but does not indicate the day of said
argument. See Appellant’s Brief at 33. No notes of testimony of the oral
argument appear in the certified record, and the trial testimony references
rulings already made.



                                           -3-
J-A06043-17


       2. Whether the trial court abused its discretion in denying
       [Appellant’s] motion for a new trial on the basis of the weight of
       the evidence?

       3. Whether the trial court abused its discretion when it granted
       the Commonwealth’s motion in limine to admit evidence of prior
       bad acts?

       4. Whether the trial court abused its discretion in denying
       [Appellant’s] request for a particular jury charge on the issue of
       malice in the context of motor vehicle fatalities?

       5. Whether the trial court abused its discretion by ignoring
       mitigating factors and ordering an excessive sentence?

Appellant’s Brief at 8.

       First, Appellant argues that the evidence is insufficient to sustain a

conviction for third degree murder, as the Commonwealth did not establish

that he had the requisite mens rea.3 See Appellant’s Brief at 14. Appellant

claims that the evidence was insufficient to show he acted with malice, and

specifically, that he did not operate his vehicle under circumstances which

almost assured that injury or death would ensue. Id.

       We review a challenge to the sufficiency of the evidence as follows.

       In determining whether there was sufficient evidentiary support
       for a jury’s finding [], the reviewing court inquires whether the
       proofs, considered in the light most favorable to the
       Commonwealth as a verdict winner, are sufficient to enable a
       reasonable jury to find every element of the crime beyond a
       reasonable doubt.        The court bears in mind that: the
____________________________________________


3  Appellant was also convicted of four counts each of involuntary
manslaughter, homicide by vehicle, and recklessly endangering another
person. He does not challenge the sufficiency of the evidence with respect
to those convictions.



                                           -4-
J-A06043-17


     Commonwealth may sustain its burden by means of wholly
     circumstantial evidence; the entire trial record should be
     evaluated and all evidence received considered, whether or not
     the trial court’s rulings thereon were correct; and the trier of
     fact, while passing upon the credibility of witnesses and the
     weight of the evidence, is free to believe all, part, or none of the
     evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted).

     Third degree murder occurs when a person commits a killing which is

neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice. See 18 Pa.C.S. § 2502(c); see also

Commonwealth v. Kling, 731 A.2d 145, 147 (Pa. Super. 1999). Malice

     exists where there is a wickedness of disposition, hardness of
     heart, cruelty, recklessness of consequences, and a mind
     regardless of social duty, although a particular person may not
     be intended to be injured. Where malice is based on a reckless
     disregard of consequences, it is not sufficient to show mere
     recklessness; rather, it must be shown the defendant
     consciously disregarded an unjustified and extremely high risk
     that his actions might cause death or serious bodily injury. A
     defendant must display a conscious disregard for almost certain
     death or injury such that it is tantamount to an actual desire to
     injure or kill; at the very least, the conduct must be such that
     one could reasonably anticipate death or serious bodily injury
     would likely and logically result.

Kling, 731 A.2d at 147-48 (internal citations and quotations omitted).

     This Court has concluded that to show malice in relation to a car crash,

the evidence must show “sustained, purposeful recklessness necessary to

prove a knowing and conscious disregard that death or serious bodily injury

was reasonably certain to occur.”    Id. at 150.   Malice has been found to

exist where an accident caused by a reckless motorist follows pleas from

                                    -5-
J-A06043-17



others to stop, or where a near miss immediately precedes the crash. See

Commonwealth v. Miller, 955 A.2d 419, 423 (Pa. Super. 2008); see also

Kling, 731 A.2d at 150. Further, we have found that the conduct is more

egregious if a motorist does not apply his brakes or attempt to slow down

before a collision than if he attempts to stop.           Miller, 955 A.2d at 423.

Essentially, a driver must have adequate time to “calculate and reflect” upon

the consequences of the reckless conduct in order to render the continuing

choice malicious. Kling, 731 A.2d at 150.

         Case law provides examples of motor vehicle crashes in which the

defendant’s actions showed the sustained and purposeful recklessness

necessary to prove a knowing and conscious disregard that death or serious

bodily    injury   was    reasonably   certain   to   occur.       For   instance,    in

Commonwealth v. Urbanski, an intoxicated driver, despite his wife’s

repeated     pleas   to   slow   down,    caused      a   deadly   collision.        See

Commonwealth v. Urbanski, 627 A.2d 789, 791-92 (Pa. Super. 1993). In

Commonwealth v. Pigg, the intoxicated driver of a tractor-trailer drove

several vehicles off the road and ignored another driver’s request to stop

driving, prior to crashing into another car on a narrow road and killing two

people.     Commonwealth v. Pigg, 571 A.2d 438, 439-442 (Pa. Super.

1990).      In Kling, the defendant raced another vehicle down a curving

mountain road, narrowly avoiding a collision before crossing the line in a

blind curve and causing the fatal collision. See Kling, 731 A.2d at 146-48.




                                         -6-
J-A06043-17



      In Commonwealth v. Scales, a motorist drove in daylight at

excessive speeds in a crowded residential neighborhood where children were

playing in the streets and sidewalks. See Commonwealth v. Scales, 648

A.2d 1205, 1207-09 (Pa. Super. 1994). Defendant ignored a stop sign and

almost collided with another vehicle; a bystander pleaded with him to slow

down, but he did not. Id. Instead, without breaking, he sideswiped another

car, jumped the curb, and pushed a large planter onto two children, crushing

one of them to death. Id. In Commonwealth v. Dunphy, an intoxicated

driver struck the victim at a high rate of speed and, although he applied his

breaks, he never came to a complete stop and fled the scene of the

accident.   See Commonwealth v. Dunphy, 20 A.3d 1215, 1217-18 (Pa.

Super. 2011). The defendant later admitted that he had seen pedestrians in

the street but accelerated anyway to make the changing light. Id.

     Finally, in Commonwealth v. Packer, the defendant inhaled aerosol

duster prior and during driving, and in a zombie-like state, drove into

oncoming traffic without swerving, slowing, or attempting to avoid the cars

in question. See Commonwealth v. Packer, 146 A.3d 1281, 1283-84 (Pa.

Super. 2016). The defendant narrowly missed one vehicle before slamming

head-on into another car. Id. This Court found evidence of malice in the

defendant’s awareness that she was driving dangerously while intoxicated:

the defendant asked her passenger whether he trusted her, and he

responded, “Am I going to die tonight?” Id. at 1286.




                                    -7-
J-A06043-17



      Commonalities may be observed among these cases.            In each case,

“near misses” occurred almost immediately preceding the crash. See Pigg,

571 A.2d at 439-442; Kling, 731 A.2d at 146-48; Scales, 648 A.2d at

1207-09; Packer, 146 A.3d at 1283-84.       In many cases, a bystander or

passenger warned the defendant to stop or to slow down, and the defendant

ignored that warning. Urbanski, 627 A.2d at 791-92; Scales, 648 A.2d at

1207-09; Packer, 146 A.3d at 1283-84. Further, the defendant clearly saw

the dangers, either in the form of a curving mountain road, children playing

on the sidewalks and street, pedestrians in the street, or oncoming traffic.

See Kling, 731 A.2d at 146-48; Scales, 648 A.2d at 1207-09; 20 A.3d at

1217-18; Packer, 146 A.3d at 1283-84; Dunphy, 20 A.3d at 1217-18. In

almost all of the cases, the defendant was intoxicated.   See Packer, 146

A.3d at 1283-84; Pigg, 571 A.2d at 439-442; Urbanski, 627 A.2d at 791-

92; Dunphy, 20 A.3d at 1217-18.

      Here, the evidence did not establish that Appellant had the requisite

sustained and purposeful recklessness necessary to establish the mens rea

necessary to sustain a conviction for third degree murder.        The evidence

showed that Appellant acted recklessly in driving at excessive rates of speed

on Roosevelt Boulevard.   The recklessness necessary to prove involuntary

manslaughter, and the sustained recklessness required in a case such as

this, are not the same. See Kling, 731 A.2d at 150 (noting that there is no

distinction between the malice essential to mens rea for third degree murder

and   the   malice   necessary    for   aggravated    assault);     see   also

                                    -8-
J-A06043-17



Commonwealth v. Comer, 716 A.2d 593, 596-97 (Pa. 1998) (noting that a

lesser degree of recklessness is required for involuntary manslaughter than

for   aggravated   assault   since   assault   requires   recklessness   “under

circumstances manifesting extreme indifference to the value of human

life.”).

       Here, the evidence did not show a near miss collision immediately

preceding the crash, nor any warning provided by a bystander or passenger

that Appellant heard and ignored.       The intersection where the accident

occurred was at the crest of a hill, rendering it difficult to see. The accident

occurred at 10:30 p.m., and the victims were wearing dark clothing.

Further, there were no pedestrian crosswalks in the area, as that

intersection is not intended for pedestrian traffic. Appellant told police that

he did not see the victims at first and attempted to swerve to avoid them

but could not. Appellant remained at the scene and attempted to render aid.

Appellant was not intoxicated at the time of the crash.

       As noted above, the Commonwealth did introduce evidence of prior

bad acts in an attempt to illustrate Appellant’s “near miss” to establish

malice. Appellant had previously driven recklessly and had been spoken to

by police regarding a “road rage” incident in Lancaster County.       However,

that incident took place a week prior to the accident and was not the

“immediate” preceding miss found in many of the cases discussed supra.

See Kling, 731 A.2d at 147-48, 150. That incident did not establish that

Appellant was aware that his driving on that night, in that manner, would

                                     -9-
J-A06043-17



almost certainly cause death or serious bodily harm. See Kling, 731 A.2d

at 147-48, 150.

       Accordingly, although Appellant’s actions certainly gave rise to a

finding of reckless conduct, and the results were tragic, the evidence does

not support a finding of malice and the “sustained, purposeful recklessness”

necessary to prove “a knowing and conscious disregard that death or serious

bodily injury was reasonably certain to occur.” Kling, 731 A.2d at 147-48,

150.   Thus, as the Commonwealth did not establish every element of the

crime beyond a reasonable doubt, we vacate Appellant’s convictions for third

degree murder. Diggs, 949 A.2d at 877.

       Next, Appellant claims that the trial court abused its discretion in

denying Appellant’s motion for a new trial on the basis of the weight of the

evidence.    See Appellant’s Brief at 29.     Appellant contends that several

factual findings by the court are not supported by the record, including that

1) the accident occurred in a residential area; 2) the court dismissed flaws in

the accident investigation officer’s calculations; and 3) the court misapplied

the doctrine of sustained recklessness. See Appellant’s Brief at 30-33.

       The law regarding weight of the evidence claims is well-settled.

       A claim alleging the verdict was against the weight of the
       evidence is addressed to the discretion of the trial court.
       Accordingly, an appellate court reviews the exercise of the trial
       court’s discretion; it does not answer for itself whether the
       verdict was against the weight of the evidence. It is well settled
       that the jury is free to believe all, part, or none of the evidence
       and to determine the credibility of the witnesses, and a new trial
       based on a weight of the evidence claim is only warranted where


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J-A06043-17


      the jury’s verdict is so contrary to the evidence that it shocks
      one’s sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      First, Appellant argues the court erred in making a factual finding that

the accident occurred in a “residential area,” as evidence was introduced to

show that Roosevelt Boulevard is actually a highway on which motorists

speed excessively, and which pedestrians are not supposed to cross.           See

Appellant’s Brief at 30. He avers that the character and nature of the road

speak directly to Appellant’s lack of malice.     Id. at 31.    Based upon our

disposition of Appellant’s first issue, we need not reach the merits of this

argument.

      Second, Appellant argues that the court erred in dismissing as

inconsequential   alleged   flaws   in   the   accident   investigation   officer’s

calculations.   See Appellant’s Brief at 31.      Appellant contends that the

officer’s calculations were based on an erroneous belief that the accident

happened outside of the view of a video camera and that there was a

possibility that another motor vehicle struck or moved the victim’s body. Id.

at 31-32. Appellant does not explain how this was an abuse of the court’s

discretion or how the verdict was so contrary to the evidence that a new trial

would be warranted.         Houser, 18 A.3d at 1135-36.            The accident

investigation officer testified 1) that a scuff mark established the stroller’s

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J-A06043-17



location at the point of impact, and 2) the location of Ms. Banks’ body

rendered it unlikely that another car hit or moved the body. Further, even

discounting the officer’s calculation of Appellant’s speed, four eye witnesses

testified that they saw Appellant racing or observed the crash. Accordingly,

it was not an abuse of discretion for the court to deny Appellant’s motion

where the verdicts, other than the conviction previously vacated, did not

shock the conscience. See Houser, 18 A.3d at 1135-36.

       Third, Appellant argues that the court misapplied the doctrine of

sustained recklessness when interpreting the timeline of the accident. See

Appellant’s Brief at 32. However, based upon our disposition of Appellant’s

first issue, we need not reach the merits of this argument.

       Next, Appellant claims that the trial court abused its discretion in

admitting prior bad acts evidence, namely, 1) Appellant’s driving record; and

2) a video from his Facebook account depicting a silver Audi drag racing with

another car.4     See Appellant’s Brief at 33.     Appellant contends that this

evidence was propensity evidence and could not be admitted to show intent,

because the mens rea for reckless driving does not equate with malice. Id.


____________________________________________


4  On appeal, Appellant also claims that the court improperly admitted
testimony from a woman who had been involved in a road incident with
Appellant several days earlier. However, Appellant did not preserve this
issue in his Pa.R.A.P. 1925(b) statement. Accordingly, the argument is
waived. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)
(“Any issues not raised in a [Rule] 1925(b) statement will be deemed
waived.”).



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J-A06043-17



at 36.    Further, Appellant argues the evidence was cumulative and

speculative. Id. at 36-41.

     Appellant’s prior vehicular violations included two convictions for

reckless driving, one conviction for careless driving, and six speeding

citations. See N.T., 7/10/15, at 3-7. The video, posted by Appellant to his

Facebook account in April 2013, two months before the accident, depicted

two cars, one of which identical to Appellant’s BMW, racing down a deserted

portion of Sandmeyer Lane in Philadelphia; however, Appellant was not

pictured in the video. See N.T., 7/9/15, at 3-4, 90. A comment posted by

Appellant indicates that the cars had reached 110 m.p.h. See N.T., 7/9/15,

at 3-4, 90. The trial court admitted evidence of the driving record to show

“intent to engage in reckless conduct,” and the Facebook video to “impute[]

to [Appellant] a knowledge of the nature of the neighborhood” and to

“confirm[] [Appellant’s] interest in drag racing.” See TCO at 21-22.

     We first note that, although this evidence was improperly admitted to

illustrate the court’s erroneous theory of sustained recklessness, we will

nevertheless address its admissibility under the prongs of Pa.R.E. 404. We

examine a trial court’s decision concerning the admissibility of evidence for

an abuse of discretion.   Commonwealth v. Dengler, 890 A.2d 372, 379

(Pa. 2005). Regarding the admissibility of prior bad acts,

     [g]enerally, evidence of prior bad acts or unrelated criminal
     activity is inadmissible to show that a defendant acted in
     conformity with those past acts or to show criminal propensity.
     Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
     admissible when offered to prove some other relevant fact, such

                                    - 13 -
J-A06043-17


       as motive, opportunity, intent, preparation, plan, knowledge,
       identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
       In determining whether evidence of other prior bad acts is
       admissible, the trial court is obliged to balance the probative
       value of such evidence against its prejudicial impact.

Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa. Super. 2016) (en banc)

(quoting Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).5

       The trial court admitted Appellant’s driving record to show Appellant’s

“intent” to engage in reckless conduct.            See TCO at 21-22.   As we have

discussed at length, supra, mere reckless conduct does not equate to the

sustained recklessness required to establish “malice” such that a defendant

has the mens rea for third degree murder. Appellant’s past driving record

and citations, insofar as the record indicates, similarly implicate questions of

____________________________________________


5 The trial court relied largely upon Commonwealth v. Riggs, 63 A.3d 780,
785 (Pa. Super. 2012), to support its admission of the instant, prior bad acts
evidence to show Appellant’s sustained recklessness.          In Riggs, the
defendant caused a crash which resulted in serious bodily injury to two
victims. Id. Riggs had previously been involved in three high speed car
chases during which he disregarded stop signs and red lights, abandoned his
car and fled, and crashed into a parked car. Id. The Commonwealth
successfully litigated a Pa.R.E. 404(b) motion to admit this evidence; on
appeal, Riggs challenged the sufficiency of the evidence but not the
propriety of the motion itself. Id. On appeal, this Court affirmed that the
evidence had established the sustained recklessness necessary to show
mens rea. Id.

However, to rely upon Riggs in this context is to rely on dicta. See, e.g.,
Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1243 n.11 (Pa. 2015)
(citing Valley Twp. v. City of Coatesville, 893 A.2d 885, 889 (Pa.
Commw. 2006) (dicta is “an opinion by a court on a question that is directly
involved, briefed, and argued by counsel, and even passed on by the court,
but that is not essential to the decision. Dicta has no precedential value.”)




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J-A06043-17



ordinary recklessness rather than the sustained malice required to prove the

mens rea for third degree murder. See Kling, 731 A.2d at 147-48, 150.

      In Commonwealth v. Sitler, an en banc panel of this Court

examined whether or not it was appropriate to admit evidence of prior

crimes in a vehicular homicide case.     See Sitler, 144 A.3d at 162.      In

Sitler, the defendant tailgated another driver, who indicated she was

making a right turn. Id. at 159. The defendant then revved his engine and

accelerated to the other driver’s left, striking and killing a pedestrian

standing in the center lane of the roadway. Id. At trial, the Commonwealth

sought to introduce evidence of the defendant’s prior conviction for vehicular

manslaughter with substantially similar facts.    Id. at 164.    In the prior

matter, the defendant, tailgating another driver in a dense fog, swerved

around that car and hit an oncoming vehicle, killing the occupant. Id.

      In deciding this issue, the Sitler Court was mindful of the prohibition

against admitting such evidence solely to show the defendant’s propensity to

commit the instant crime. Id. at 163-64. Further, we noted the importance

of a close factual nexus to demonstrate the connective relevance of the prior

bad acts to the crime in question. Id. at 164. Specifically with regard to

vehicular homicide, the mens rea required was that the defendant must

consciously know and disregard a substantial unjustifiable risk, and that the

risk the actor disregards is measured by the circumstances known to the

actor. Id. We found that at least facially, the defendant should have known

his conduct created a risk that he disregarded.       Id. at 164.    Further,

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because in both cases the defendant was operating a motor vehicle too

closely to another vehicle at excessive speeds, where another person died,

the prior conviction was admissible to demonstrate that the defendant not

only knew of the risk, but consciously disregarded it. Id. at 164.

      Here, however, such a close factual nexus does not exist. Appellant’s

prior convictions and citations were for, respectively, reckless driving,

careless driving, and speeding.   Insofar as the record shows, no one was

injured during these incidents, nor were the facts sufficiently similar to the

tragic accident herein. Accordingly, they cannot be admitted to show that

defendant should have known of the danger or the conscious disregard of

such danger on the night of the accident. See Sitler, 144 A.3d at 164-65.

Thus, the trial court committed an abuse of discretion in admitting this prior

bad acts evidence. See Dengler, 890 A.2d at 379; Sitler, 144 A.3d at 164-

65.

      Next, the trial court admitted the video of two cars racing on a

deserted street, as it imputed knowledge of the nature of the neighborhood

to Appellant and to confirm Appellant’s interest in drag racing. See TCO at

21-22.   Here, this evidence simply was not relevant to prove knowledge

such that it would overcome the potential prejudice of its introduction. See,

e.g., Sitler, 144 A.3d at 163.    First, although there was some testimony

that Sandmeyer Lane, as depicted in the video, was within proximity to Red

Lion Road in Philadelphia, Pennsylvania, no witness testified that Sandmeyer

Lane is near the neighborhood where the accident occurred.           See N.T.,

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J-A06043-17



7/10/15, at 97-101.     Neither is Appellant actually visible in the video.

Second, Appellant’s interest in drag racing cannot be anything but

propensity evidence, i.e., evidence to show that he was more likely to have

been drag racing on the night of the accident. See Pa.R.E. 404(b)(1). The

trial court points to no other relevant purpose for the admission of this

video. See, e.g., Commonwealth v. Hicks, --- A.3d ---, at *8 (Pa. 2017)

(filed March 28, 2017).    Accordingly, the court abused its discretion in

admitting the Facebook video. See Dengler, 890 A.2d at 379; Sitler, 144

A.3d at 164-65.

      However, despite the trial court’s abuse of discretion in admitting this

evidence, Appellant cannot show that he was prejudiced by its admission

such that a new trial is required. This evidence was admitted by the trial

court to show sustained recklessness.         We have previously vacated

Appellant’s convictions for third degree murder; Appellant does not argue

that the evidence was insufficient to establish his convictions for other

crimes beyond third degree murder; and he admits that his actions were

inexcusable and that he deserves punishment. See Appellant’s Brief at 14,

28. Further, his convictions were supported by the testimony of numerous

eyewitnesses and forensic evidence. See TCO at 2-9. Accordingly, a new

trial is not required. See, e.g., Commonwealth v. Story, 383 A.2d 155,

164 (1978) (noting that an error cannot be held harmless unless the

appellate court determines that the error could not have contributed to the

verdict).

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J-A06043-17



     Next, Appellant claims the trial court abused its discretion in denying

his request for a jury charge on the issue of malice in the context of motor

vehicle fatalities. See Appellant’s Brief at 42. Appellant requested a charge

based on the language of the holding in Kling instead of the standard jury

instruction for third degree murder. Id. at 42 (citing Kling, 731 A.2d at 148

(noting that a defendant must display a conscious disregard for almost

certain death or injury)).       As we have already reversed Appellant’s

convictions for third degree murder, we need not reach the merits of this

claim.

     Finally, Appellant claims that the trial court abused its discretion by

ignoring mitigating factors and ordering an excessive sentence.          See

Appellant’s Brief at 44. Here, Appellant received consecutive terms of four

to eight years for third degree murder and REAP.          His sentences for

involuntary manslaughter were merged with his convictions for murder.

Accordingly, our disposition of Appellant’s first issue may disturb the

sentencing   scheme   of   the   lower   court.   See   Commonwealth       v.

Goldhammer, 517 A.2d 1280, 1283-84 (Pa. 1986) (stating, “When a

defendant challenges one of several interdependent sentences, he, in effect,

challenges the entire sentencing plan.”); see also Commonwealth v.

Williams, 871 A.2d 254, 266-67 (Pa. Super. 2005) (noting that where this

Court disturbs the court’s overall sentencing scheme it is appropriate to

remand for resentencing).    Accordingly, we remand for resentencing, and




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J-A06043-17



decline to address Appellant’s claim regarding the discretionary aspects of

his sentence.

      Judgment of sentence for third degree murder reversed.        For all

remaining charges, Appellant’s convictions are affirmed.       Judgment of

sentence   for   the   remaining     convictions   vacated.   Remanded   for

resentencing. Jurisdiction relinquished.

      Judge Shogan joins the Opinion.

      Judge Panella notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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