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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
KHALIL G. WALKER SHABAZZ,                :          No. 868 EDA 2016
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, February 12, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0008582-2013


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 25, 2017

        Khalil G. Walker Shabazz appeals1 from the February 12, 2016

aggregate judgment of sentence of 23½ to 47 years’ imprisonment, followed

by 10 years’ probation, imposed after he was found guilty in a waiver trial of

third-degree murder, possessing an instrument of crime (“PIC”), carrying a

firearm without a license, and carrying a firearm on public streets or public

property in Philadelphia.2 After careful review, we affirm.


1 Appellant purports to appeal from the February 25, 2016 order denying his
post-sentence motions. In a criminal action, an appeal properly lies from
the judgment of sentence made final by the denial of post-sentence motions.
See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa.Super.
2007) (noting that an appeal from an order denying post-sentence motions
is procedurally improper because a direct appeal in a criminal proceeding lies
from judgment of sentence).

2   18 Pa.C.S.A. §§ 2502, 907, 6106, and 6108, respectively.
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     The trial court summarized the relevant facts of this case as follows:

                 Jerry Edwards, [appellant], and several friends
           were out at Fat Pete’s Bar in Philadelphia on the
           night of October 2, 2012. Edwards had arrived in his
           mother’s    Dodge    Stratus.       [Appellant]   had
           Naseem Abdullah’s Ford Crown Victoria. A little after
           midnight, Edwards left the bar driving the Crown Vic,
           leaving the keys to his mom’s Dodge Stratus with
           [appellant]. Edwards got into an accident at Bridge
           and Pratt Streets, totaling the Ford. Edwards called
           one of his friends at the bar, Jawara Jones, and
           asked him to come to the accident scene and drive
           his female passengers home. Jones complied and
           then drove Edwards to Markeya Burton’s residence in
           the Frankford section of Philadelphia. Edwards gave
           Jones the keys and title to the smashed up
           automobile which had been in the Ford’s glove
           compartment.

                 Jones returned to the bar to pick up
           [appellant], telling him the tale concocted by
           Edwards that the Crown Vic had been confiscated by
           the police and giving [appellant] the title and keys to
           the Ford. [Appellant] became irate, not believing the
           fabricated story. [Appellant] and Jones argued in
           front of [appellant’s] house, after which [appellant]
           took the keys to the Dodge Stratus and went inside
           his house. Jones walked home.

                  Around 4:00 a.m., Edwards left Burton’s
           residence stating that he was going to get the Crown
           Victoria.   He was picked up by [appellant] and
           [appellant’s] brother, Sameer, and they drove
           around looking for the purportedly confiscated Ford.
           Sameer became suspicious after a short time and
           asked Edwards, who was driving at the time, to pull
           over. At that point, [Edwards] stopped the car and
           Sameer got out.         After a verbal exchange,
           [appellant] pulled out a .40 caliber handgun and
           fired three shots at Edwards, killing him.

                 [Appellant] and his brother Sameer arrived at
           Abdullah’s house early that morning. [Appellant]


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            admitted that he had met up with Edwards earlier,
            gotten into an argument, and shot him three times.
            Sameer confessed he had been in the car with
            Edwards and his brother, but had exited the vehicle
            and started walking up the block when his brother
            shot Jerry Edwards. Edwards’ body was found in his
            mother’s Dodge Stratus in the alley behind
            7519 Brous Street in Philadelphia.

                   A resident of the area, Sean McCloskey,
            testified that he was getting dressed for work when
            he heard several gunshots, looked out his window
            and observed [appellant] jogging with one hand in
            his pocket. McCloskey had never seen [appellant]
            running in that area before. The title to the Ford
            Crown Victoria was found on a Nesper Street lawn,
            where McCloskey had seen [appellant] jogging.
            Additionally, both Jones and Abdullah testified that
            they knew [appellant] had a .40 caliber handgun,
            having purchased it a couple of months previous to
            this incident.

Trial court opinion, 8/4/16 at 2-4 (citations to notes of testimony omitted).

      On April 19, 2013, appellant was arrested in connection with this

incident and charged with third-degree murder and related offenses.         On

February 18, 2015, appellant filed a pre-trial motion for discovery of the

personal and disciplinary files of former Philadelphia Homicide Detective

Ronald Dove.3 Following a hearing, the trial court denied appellant’s motion


3  The record reflects that Detective Dove was terminated from the
Philadelphia Police Department after he was arrested for helping his
girlfriend flee the city after she murdered her ex-boyfriend and trying to
influence homicide detectives in their investigation of that murder.
Detective Dove’s connection to the instant matter was that he was involved
in the preparation and execution of two search warrants and was present
when two witnesses gave statements to other detectives. (See “Motion to
Produce and Disclose Records,” 2/18/15 at ¶¶ 2-4; certified record at no. 9;
see also notes of testimony, 3/4/15 at 5, 8-9.)


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on March 4, 2015. On November 9, 2015, appellant waived his right to a

jury and proceeded to a bench trial the following day.        On November 16,

2015, the trial court found appellant guilty of third-degree murder, PIC,

carrying a firearm without a license, and carrying a firearm on public streets

or public property in Philadelphia. As noted, appellant was sentenced to an

aggregate term of 23½ to 47 years’ imprisonment, followed by 10 years’

probation, on February 12, 2016.      On February 22, 2016, appellant filed

post-sentence motions challenging the weight of the evidence and for

reconsideration of his sentence.        The trial court denied appellant’s

post-sentence motions on February 25, 2016.       This timely appeal followed

on March 8, 2016.4

      Appellant raises the following issues for our review:

            1.    Did the trial court err when it denied
                  [appellant’s] request for Detective Dove’s
                  personnel and internal affairs files where it was
                  undisputed that the detective had been caught
                  falsely manipulating evidence in prior homicide
                  cases?

            2.    Did the sentencing court impose an aggregated
                  sentence that was contrary to the fundamental
                  norms underlying the sentencing process
                  because it did not take into account
                  [appellant’s]   potential   and    need    for
                  rehabilitation?

4 On March 10, 2016, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days. On April 13, 2016, the trial court granted
appellant’s request for an extension of time to file his Rule 1925(b)
statement.    On May 11, 2016, appellant filed a timely Rule 1925(b)
statement. The trial court filed its Rule 1925(a) opinion on August 4, 2016.


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            3.     Was [appellant’s] sentence for carrying a
                   firearm without a license manifestly excessive
                   because it exceeded the sentencing guidelines
                   without any reasons articulated in support of
                   exceeding the guidelines?

Appellant’s brief at 4.

      Appellant first argues that the trial court abused its discretion in

denying his pre-trial discovery motion for the personal and disciplinary files

of Detective Dove.        (Id. at 10.)    In support of this contention, appellant

avers that “information relative to Detective Dove’s dishonesty in other

homicide investigations would have been materially exculpatory information

that would have been appropriate impeachment material.”                 (Id.)    For the

following reasons, we disagree.

      Generally, our standard of review of a trial court’s denial of a pre-trial

discovery   motion    is    whether      the   trial   court   abused   its   discretion.

Commonwealth v. Garcia, 72 A.3d 681, 684 (Pa.Super. 2013). “An abuse

of discretion is not merely an error of judgment, but is rather the overriding

or misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown

by the evidence of record.” Commonwealth v. Mendez, 74 A.3d 256, 260

(Pa.Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014).

      Pretrial discovery and inspection is governed by Pennsylvania Rule of

Criminal Procedure 573, which provides, in relevant part, as follows:




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          (B)    Disclosure by the Commonwealth.

          ....

                (2) Discretionary With the Court.

                   (a) In all court cases, except as otherwise
                       provided in Rules 230 (Disclosure of
                       Testimony Before Investigating Grand
                       Jury) and 556.10 (Secrecy; Disclosure),
                       if the defendant files a motion for
                       pretrial discovery, the court may order
                       the Commonwealth to allow the
                       defendant’s attorney to inspect and
                       copy or photograph any of the following
                       requested items, upon a showing that
                       they are material to the preparation of
                       the defense, and that the request is
                       reasonable:

                       (i)   the names and     addresses    of
                             eyewitnesses;

                       (ii) all    written      or    recorded
                            statements, and substantially
                            verbatim oral statements, of
                            eyewitnesses the Commonwealth
                            intends to call at trial;

                       (iii) all   written   and     recorded
                             statements, and substantially
                             verbatim oral statements, made
                             by   co-defendants,    and    by
                             co-conspirators or accomplices,
                             whether such individuals have
                             been charged or not; and

                       (iv) any other evidence specifically
                            identified by the defendant,
                            provided the defendant can
                            additionally establish that its
                            disclosure would be in the
                            interests of justice.



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Pa.R.Crim.P. 573(B)(2)(a).        Under Rule 573(B)(2)(a), appellant has “the

burden of proving (1) his request for the [documents at issue] was material

to the preparation of his defense, (2) the request was reasonable, and

(3) the information disclosed by the request would be in the interests of

justice.” Garcia, 72 A.3d at 684.

      Here, the trial court found that the discovery of the personnel and

disciplinary files of Detective Dove was not warranted under Rule 573(B)

because     appellant   failed   to   demonstrate   “a   specific   articulable   ...

reasonable basis” for his discovery request. (Notes of testimony, 3/4/15 at

13.) In reaching this decision, the trial court reasoned as follows:

             [A] mere general request because [Detective Dove]
             is indicted and in trouble, screwed up another
             investigation, is not enough.

                    Unless you can tie it into the two statements or
             two search and seizure affidavits, I don’t think you
             are entitled to it unless you can show there is some
             inclination to show there is some falsehood or
             something that will go on relevant to this case, not
             just in general an allegation that he screwed up
             other cases.

Id. at 7.

      Upon review, we agree with the trial court that appellant failed to

satisfy his burden under Rule 573(B)(2)(a), and thus, the denial of his

discovery motion was entirely warranted.             This court has repeatedly

recognized that in order to prove “the requested information is material and

reasonable, a defendant must show a reasonable probability that the



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information gained from the discovery would lead to evidence that would

exonerate him.     More than a mere assertion that the information

disclosed might be helpful is necessary.”               Garcia, 72 A.3d at 684

(internal citations omitted; emphasis added); see also Commonwealth v.

Belenky, 777 A.2d 483, 488 (Pa.Super. 2001).

      Instantly, our review of the record reveals that appellant failed to

establish that his discovery request was either material to the preparation of

his defense or a reasonable request. See Pa.R.Crim.P. 573(B)(2)(a)(iv). It

necessarily follows as well that such disclosure would not be in the interests

of justice. See id. As noted, Detective Dove’s only connection to this case

was that he was involved in the preparation and execution of two search

warrants and was present when two witnesses gave statements to other

detectives. (See notes of testimony, 3/4/15 at 5, 8-9.) Appellant’s counsel

conceded   at    the   March    4,    2015    hearing   that   the   two    warrants

Detective Dove executed in this case did not lead to the discovery of

“anything of value.”     (Id. at 5.)         Additionally, appellant presented no

evidence that Detective Dove acted improperly with respect to the case

sub judice,     and    the     only     conceivable     purpose      in    presenting

Detective Dove’s alleged “prior malfeasance” in an unrelated matter would

be to impeach his credibility.       (See appellant’s brief at 10.)       The record,

however, reveals that appellant was aware that the Commonwealth did not

intend to call Dove as a witness, and Dove did not testify at trial. (Notes of



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testimony, 3/4/15 at 6.) Thus, Dove’s credibility was not at issue. Given

Detective Dove’s limited involvement in this case, as well as the absence of

any significant connection between his girlfriend’s case and the instant

matter, we find that there was no reasonable basis to permit appellant to

review Dove’s personnel and disciplinary files. Accordingly, appellant’s first

claim fails.5

      We now turn to appellant’s challenges to the discretionary aspects of

his sentence.      Specifically, appellant argues that the trial court abused its

discretion by sentencing him “without considering [his] rehabilitative needs.”

(Appellant’s brief at 13.)      Appellant further contends that the trial court




5  In reaching this conclusion, we note that appellant’s reliance on
Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa.Super. 1999), is
misplaced. Mejia-Arias stands for the proposition that a defendant is only
entitled to review relevant material in a police officer’s personnel file where
there exists at least some reason to believe the inspection would lead to
evidence helpful to the defense. Id. at 874-875. As recognized by the trial
court,

                       In that case, the District Attorney had
                nol prossed 53 cases in which the [sic] one of the
                officers was an essential witness and 60 cases
                involving the other agent, based on information that
                these agents had lied in search warrant applications.
                As these officers were the applicants on search
                warrants in Mejia-Arias, there was a significant,
                articulable, reasonable basis for allowing the
                defendant to review the agent’s personnel files. No
                such basis has been provided in the present case.
                There has been no connection between this case and
                Dove’s girlfriend’s case.

Trial court opinion, 8/4/16 at 7-8.


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failed to state sufficient reasons on the record for deviating from the

sentencing guidelines with respect to the carrying a firearm without a license

charge.”6 (Id. at 15.) We disagree.

        Our standard of review in assessing whether a trial court has erred in

fashioning a sentence is well settled.

             Sentencing is a matter vested in the sound discretion
             of the sentencing judge, and a sentence will not be
             disturbed on appeal absent a manifest abuse of
             discretion. In this context, an abuse of discretion is
             not shown merely by an error in judgment. Rather,
             [a]ppellant must establish, by reference to the
             record, that the sentencing court ignored or
             misapplied the law, exercised its judgment for
             reasons of partiality, prejudice, bias or ill will, or
             arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

        Where an appellant challenges the discretionary aspects of his

sentence, as is the case here, the right to appellate review is not absolute.

See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

Rather, an appellant challenging the discretionary aspects of his sentence

must invoke this court’s jurisdiction by satisfying the following four-part

test:




6 Under the sentencing guidelines, the standard range for the offense of
carrying a firearm without a license was 12 to 24 months’ imprisonment,
plus or minus 12 months. The trial court sentenced appellant to 42 to
84 months’ imprisonment, which was outside the aggravated range of the
guidelines.


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            (1) whether the appeal is timely; (2) whether
            appellant preserved his issue; (3) whether
            appellant’s brief includes a concise statement of the
            reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a
            substantial question that the sentence is appropriate
            under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Here, the record reveals that appellant filed a timely notice of appeal

on March 8, 2016, and preserved his discretionary aspects of sentencing

claim in a February 22, 2016 post-sentence motion. Appellant also included

a   statement   in     his   brief   that    comports   with   the   requirements   of

Pa.R.A.P. 2119(f).      (See appellant’s brief at 8-9.)        Accordingly, we must

determine whether appellant has raised a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”            Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)

(citation omitted).      “A substantial question exists only when appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).




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      In his Rule 2119(f) statement, appellant contends that the trial court

deviated from the sentencing guidelines and “his potential for rehabilitation

should have been acknowledged by the [trial] court and factored into his

aggregate sentence.     (Appellant’s brief at 8.) Appellant further avers that

the trial court failed “to offer any justification for its departure from the

sentencing guidelines for the conviction of carrying a firearm without a

license.” (Id. at 9.) This court has long recognized that a claim “that the

sentencing     court   disregarded       rehabilitation   and     the    nature     and

circumstances of the offense in handing down its sentence presents a

substantial question for our review.” Commonwealth v. Dodge, 77 A.3d

1263, 1273 (Pa.Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).

Likewise, “a claim the trial court failed to state its reasons for deviating from

the guidelines presents a substantial question for review.” Commonwealth

v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009) (citation omitted).

Accordingly, we proceed to consider the merits of appellant’s discretionary

sentencing claims.

      Herein, the record reveals that the trial court considered and weighed

numerous     factors   in   fashioning     appellant’s    sentence,     including   his

rehabilitative needs. At the February 12, 2016 sentencing hearing, the trial

court stated that it read “well over a hundred letters of recommendation”

and heard testimony from multiple witnesses who testified on appellant’s

behalf.   (Notes of testimony, 2/12/16 at 3, 8-17.)             Appellant also briefly



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testified at the sentencing hearing on his desire “to move forward in [his]

life” and “be something in life.” (Id. at 30-31.) Although the record reflects

that the trial court did not specifically state at the sentencing hearing that it

considered appellant’s rehabilitation, the trial court was in possession of a

presentence investigation (“PSI”) report and indicated that it considered it in

determining appellant’s sentence.     (Id. at 3; see also trial court opinion,

8/4/16 at 10.) Where the trial court has the benefit of a PSI report, as is

the case here, “we shall . . . presume that the sentencing judge was aware

of relevant information regarding the defendant’s character and weighed

those     considerations    along    with      mitigating   statutory   factors.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

        Contrary to appellant’s contention, the record further reflects that the

trial court placed its reasons on the record for its departure from the

sentencing guidelines. (See notes of testimony, 2/12/16 at 31.) It is well

settled that a sentencing court “may deviate from the guidelines, if

necessary, to fashion a sentence which takes into account the protection of

the public, the rehabilitative needs of the defendant, and the gravity of the

particular offense as it relates to the impact on the life of the victim and the

community[.]”       Commonwealth v. Kitchen, 162 A.3d 1140, 1147

(Pa.Super. 2017) (citation omitted).        However, “[i]n every case where a

sentencing court imposes a sentence outside of the sentencing guidelines,



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the court must provide in open court a contemporaneous statement of

reasons in support of its sentence.”   Commonwealth v. Shull, 148 A.3d

820, 835-836 (Pa.Super. 2016) (citations omitted). In reviewing the record,

the appellate court considers:

           (1)   the nature of the circumstances of the offense
                 and the history and characteristics of the
                 defendant.

           (2)   The opportunity of the sentencing court to
                 observe   the    defendant, including  any
                 pre-sentence investigation.

           (3)   The findings upon which the sentence was
                 based.

           (4)   The   guidelines      promulgated     by    the
                 commission.

42 Pa.C.S.A. § 9781(d).

     Instantly, the record reveals that the trial court was cognizant of both

the sentencing guidelines and the sentence it was imposing. In addition to

reviewing the PSI report, the trial court acknowledged on the record

appellant’s lack of prior criminal history and extensive support in his

community, but reasoned that the sentence it imposed was just, given the

fact that he could have been convicted of first-degree murder:

           [Appellant], although you have no prior history and
           you have a lot of support, what you did was a
           vicious, unprovoked, inhumane, hateful, cowardly
           act. There was absolutely no reason to take this
           young man’s life, none.

                  You were given mercy; you got third degree,
           not first.


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Notes of testimony, 2/12/16 at 31.

      Proper appellate review dictates that this court not disturb a trial

court’s sentence absent a finding that the trial court failed to weigh the

sentencing considerations in a meaningful fashion.          “When reviewing

sentencing matters, this Court must accord the sentencing court great

weight as it is in best position to view the defendant’s character, displays of

remorse, defiance or indifference, and the overall effect and nature of the

crime.”   Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa.Super.

2009) (citation omitted), appeal denied, 987 A.2d 161 (Pa. 2009).

Accordingly, appellant’s challenges to the discretionary aspects of his

sentence must fail.

      Based on the foregoing, we find no abuse of the trial court’s discretion

and affirm appellant’s February 12, 2016 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/25/2017




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