Opinion
J-S11012-14 No. 3498 EDA 2012
03-28-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KHALIL BURNETT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 4, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003222-2009
BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Khalil Burnett, appeals from the judgment of sentence of an aggregate term of 12 to 32 years' imprisonment, imposed after a jury convicted him of criminal trespass, possession of a firearm by a minor, and aggravated assault. Appellant contends that his trial counsel rendered ineffective representation, and that his aggravated assault conviction is not supported by sufficient evidence. We affirm.
The trial court set forth the facts adduced at Appellant's trial as follows:
Ms. Rosemarie Schrader testified that she has resided on the 7300 block of Garman Street in the City of Philadelphia all of her life. She described her home as being in the middle of a typical residential block of row homes with an elevated openTrial Court Opinion (TCO), 6/3/13, at 4-8 (citations to the record omitted).
front porch. On the evening of October 4, 2008, while she was sitting alone on her porch going through her mail between the hours of 8:00 and 9:00 p.m., she heard "a cluster what I thought was fireworks." She looked up at the sound and saw two "kids" in white T-shirts, coming from her left, running down the middle of Garman Street, away from the direction of the "fireworks," and turn right onto Berbro Street at the end of the block. She then looked in the opposite direction to where she had heard the noises coming from. She saw a taller "kid," wearing a dark "Dickies type uniform," standing alone very near a street light diagonally across the street from her. He was yelling "Go ahead and run [...] pussies, pussy, something like that." She also described him as standing with his hand "outstretched" towards Bialy Street, at the other end of the block, when she "saw a flash from his right hand which she immediately recognized it as a "gunshot." This person then ran in the same direction as the other two and also turned right onto Berbro Street.
Ms. Schrader testified that, although she did not see the gun, she did see the distinct flash of a gun and heard the sound of its discharge. After seeing the flash, she then looked further up the block towards Bialy where she saw "a shadow, like somebody was running." She remembered "they were towards the corner.... It was more towards corner."
Shortly afterwards she saw a dark-colored caravan come down Garman Street and then turn right onto Berbro Street. She then heard the vehicle proceed up the alley way behind her house and turn left onto Bialy Street going the wrong way on a one way street.
Detective Keith Scott testified that on the evening of October 14, 2008 he was a police officer on patrol in plain clothes and an unmarked police vehicle with his partner when he received a radio call, at approximately 9:00 p.m., alerting him to a shooting in the area of the 7300 block of Garman Street. He also received information regarding two black males, one wearing a white shirt and the other a dark shirt, who might have been victims of the shooting. On arriving at Berbro Street he immediately observed two males matching this description go up the steps of 2602 Berbro, enter the enclosed front porch and exit three to five seconds later. Identifying himself, Detective Scott approached [Appellant], whereupon [Appellant] declared he had been shot. Detective Scott testified that [Appellant] was
wearing a blue uniform with the word "Dickies" on one of the pockets and that he did not observe anyone else in similar clothes.
On learning that [Appellant] did not live at the premises, Detective Scott searched the interior of the enclosed porch and discovered the butt of a gun protruding from a lawnmower bag "like somebody attempted to throw it inside the bag." On discovering the gun, Detective Scott had [Appellant] escorted to the hospital because "there was a chance that instead of being a victim [Appellant] would possibly be placed under arrest."
Police Sergeant Philip McAlorum testified that he was the first supervisor on the scene and that when he arrived at 2602 Berbro Street, Officer Scott had already detained [Appellant]. He described [Appellant] as having been "shot in his upper left leg" and wearing a "full, navy blue, what on the street would be called a Dickies set. Identically matching blue shirt and blue pants, like a mechanic's outfit, mechanic's uniform." Sergeant McAlorum further testified that [Appellant] gave him a "limited description of the people he believed shot him, as well as several locations as to where it happened." [Appellant] identified the locations relating to this incident as[] 2602 Berbro Street[,] the middle of the block of Garman Street[,] and the intersection of Garman and Bialy Streets.
Ms. Edna B. Turner testified that she is the owner of 2602 Berbro Street and that the property was unoccupied in October 2008. She also testified that she and her granddaughter had been to the property, mowed the lawn and checked to make sure it was secure on the morning of October 14, 2008.
Detective Timothy McCool testified that he was assigned to investigate this shooting incident of October 14, 2008, and that, as part of his investigation, he recovered a .45 caliber revolver from the enclosed front porch of 2602 Berbro Street containing "six .45 caliber FCCs; they are fired casings." In addition to the revolver, Detective McCool also recovered sixteen FCCs, all within twenty feet of each other, from the vicinity of the intersection of Garman and Bialy Streets. He testified that these casings consisted of "three .40 caliber FCCs; seven RMP .380 auto FCCs; and six RMP .32 auto FCCs." In addition to the casings, he also recovered a projectile nearby on the 7300 block of Garman Street. Detective McCool testified that, including the
revolver, "I think there were four different weapons fired that day."
Detective David Tighe testified he was the lead detective assigned to investigate this shooting incident. As part of his investigation, he personally inspected the area around the lightpost in the middle of the 7300 block of Garman Street and did not find any fired cartridge casings.
Police Officer Raymond Andrejczak, testified that he is assigned to the Philadelphia Police Department's Firearms Identification Unit. He explained that when a revolver is fired "you would not expect to have fired cartridge cases where a revolver was fired," whereas a semiautomatic "automatically ejects [any] fired cartridge cases out from the firearm." Officer Andrejczak tested the revolver recovered and found it to be operable. He further testified that, although the six casings recovered from the revolver had been fired from the same revolver, he was unable to determine with scientific certainty that they were shot from that revolver, although it was most likely that they had been.
Based on this evidence, the jury convicted Appellant of the above-stated offenses. On September 4, 2012, he was sentenced to consecutive terms of three to seven years' imprisonment for criminal trespass, two to five years' imprisonment for possession of a firearm by a minor, and seven to twenty years' imprisonment for aggravated assault. Appellant filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises the following two issues for our review:
I. Is [Appellant] entitled to a new trial because of the ineffectiveness of his trial counsel in failing to ask the trial court to give a jury instruction on self-defense when testimony showed he was first shot and then returned fire?Appellant's Brief at 3.
II. [Did] the Commonwealth meet [its] burden of proving aggravated assault when [it] presented the trial court with no victim and no evidence of intent to cause serious bodily injury?
Initially, because this is Appellant's direct appeal, we may not review his claim of trial counsel's ineffectiveness. Recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of ineffective assistance of counsel should be deferred until collateral review under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Holmes, 79 A.3d at 576. The specific circumstances under which ineffectiveness claims may be addressed on direct appeal are not present in the instant case. See id. at 577-78 (holding that the trial court may address claim(s) of ineffectiveness where they are "both meritorious and apparent from the record so that immediate consideration and relief is warranted," or where the appellant's request for review of "prolix" ineffectiveness claims is "accompanied by a knowing, voluntary, and express waiver of PCRA review").
Moreover, we note that even if we could review Appellant's challenge to counsel's representation herein, he has waived this issue by failing to present it in his Rule 1925(b) statement. See Rule 1925(b) Statement, 1/24/13; see also Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."). Accordingly, Appellant's first issue is both waived and unreviewable on direct appeal.
Next, we must assess whether Appellant has preserved his second issue for our review. In his Rule 1925(b) statement, Appellant presented his challenge to the sufficiency of the evidence as follows: "The evidence was insufficient to convict the defendant of aggravated assault." Rule 1925(b) Statement, 1/24/13. The trial court deemed this issue waived because Appellant failed to "specify the element or elements upon which the evidence was insufficient." TCO at 3 (quoting Commonwealth v. Flores, 921 A.2d 517, 522-23 (Pa. Super. 2007), overruled in part, and on other grounds, by Pa.R.Crim.P. 1925(c)(4)); see also Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citation omitted) (reiterating that a Rule 1925(b) "statement must 'specify the element or elements upon which the evidence was insufficient' in order to preserve the issue for appeal.") We agree with the court that Appellant's second issue is waived based on his insufficient Rule 1925(b) statement.
Despite finding waiver, the trial court discussed why it would deem Appellant's sufficiency challenge meritless had he properly preserved that claim. We will do the same herein. Our standard of review of challenges to the sufficiency of the evidence is well-settled:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3dCommonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.
The crime of aggravated assault is defined in the Crimes Code as follows:
(a) Offense defined.—A person is guilty of aggravated assault if he:18 Pa.C.S. § 2702(a)(1). This Court has also stated that to prove the intent element of aggravated assault,
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
[t]he Commonwealth need only prove [the defendant] acted recklessly under circumstances manifesting an extreme indifference to the value of human life. For the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue.Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (quoting Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997)) (citations and emphasis added in Patrick omitted).
Here, Appellant contends that the Commonwealth failed to prove he acted with the intent to cause serious bodily injury. We disagree. As discussed, supra, the Commonwealth presented evidence that Appellant engaged in a gunfight on a residential street, during which he fired a .45 caliber revolver six times. Ms. Schrader, who was sitting on her porch when the gunfire erupted, testified that she saw Appellant firing his gun in the direction of a "shadow" that appeared to be "somebody ... running." N.T. Trial, 6/26/12, at 58. Ms. Schrader also heard Appellant yelling taunts in the direction in which he was shooting. From this evidence the trial court concluded:
It is clear from the record that [Appellant] was not an innocent bystander but was, instead, an active participant in the [gunfight] that night. [Appellant], by engaging in a violent [gunfight] in a residential neighborhood, acted with a callous and reckless disregard for the consequences of his act. By blindly discharging his weapon in a residential neighborhood it could be reasonably and logically anticipated that serious injury, if not death, would be the result.TCO at 12. We agree with the court's rationale. See Commonwealth v. McClendon, 874 A.2d 1223, 1229 (Pa. Super. 2005) (finding witnesses' testimony that they saw the appellant engage in a gunfight on a public street sufficient to prove the appellant acted with "reckless disregard of the high risk of serious bodily injury that could likely result"). Consequently, even had Appellant properly raised this issue in his Rule 1925(b) statement, we would conclude that it is meritless.
Judgment of sentence affirmed. Judgment Entered. ________________
Joseph D. Seletyn, Esq.
Prothonotary