Opinion
J-S26022-16 No. 531 EDA 2014
07-21-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAOOD QUODOS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0016059-2008 BEFORE: OLSON, STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Daood Quodos appeals from the September 6, 2013 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court"), following a jury trial that resulted in his being convicted of aggravated assault, possessing a firearm without a license, carrying a firearm on a public street, and possessing an instrument of crime. Upon review, we affirm.
18 Pa.C.S.A. §§ 2702(a), 6106(a)(1), 6108, and 907(a), respectively.
The facts and procedural history of this case are as follows. On the evening of May 26, 2008, Tariq Hannibal (the "Victim"), Kalim Williams ("Williams") and Tonnell Fuller went to the Lucky Strikes bowling alley at 40th and Spruce Street in Philadelphia. N.T. Trial, 4/1/13, at 61-62, 65-66. These three individuals were associated with a gang from 60th Street in West Philadelphia that was engaged in active hostilities against a rival gang from 56th Street, to which Appellant belonged. The hostilities between the gangs had resulted in multiple shootings. Id. at 86-87, 109-14; see N.T. Trial, 4/2/13, at 61-62, 143-44. At the bowling alley, a female approached the three men to warn them that some guys from the 56th Street gang were present. To avoid any conflict, the three friends left the bowling alley in the Victim's car. They noticed that a black car was following them down Walnut Street. The Victim attempted to lose the black car by dodging in and out of the two lanes on Walnut Street. However, at 56th Street and Walnut Street, the Victim was forced to stop at a red light. Appellant stepped out of the black car into the middle of traffic and fired his "black chrome semi[-]automatic handgun" into the Victim's car and fled. Before running away from the scene, Williams attempted to assist the Victim, who had been shot and was motionless. The Victim—who survived—was shot in his head and arm and still experiences trouble with his short-term memory, vision, and arm mobility. Williams later informed the police that he observed that Appellant was only three feet away from the driver's side of the car when Appellant fired his gun into the car. During their investigation, detectives recovered sixteen brass casings from the scene of the shooting.
Unless another source is cited, the facts are taken from pages 1 and 3 of the trial court's June 30, 2015 Pa.R.A.P. 1925(a) opinion.
Williams recognized Appellant as a former schoolmate and a 56th Street gang member. N.T. Trial, 4/1/13 at 182-83; N.T. Trial, 4/2/13, at 160.
Appellant eventually was charged with, inter alia, aggravated assault, and various firearms offenses. The case proceeded to a jury trial, at which the trial court, over Appellant's objection, permitted the Commonwealth to introduce evidence of gang violence between the 60th and 56th Street gangs and Appellant's prior firearms conviction. The trial court also disallowed Appellant from cross-examining Williams about Williams' firearms offenses under Pa.R.E. 404(b). Finally, the trial court, over Appellant's objection, and in accord with Pa.R.Crim.P. 646, allowed the jury to review redacted written statements that Williams gave to the police. Following trial, the jury convicted Appellant of aggravated assault, possessing a firearm without a license, carrying a firearm on a public street, and possessing an instrument of crime. The trial court sentenced Appellant to 9½ to 19 years' imprisonment. Appellant did not file any post-sentence motion; and timely appealed to this Court. Following Appellant's filing of a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion.
This was Appellant's third trial, as his first two trials resulted in mistrials in 2010 and 2011, respectively.
On appeal, Appellant raises six issues for our review:
1. Whether the trial court erred in admitting evidence of other crimes through hearsay statements provided by [Williams] under the guise of establishing motive or providing the complete picture when the evidence was more prejudicial than probative of any material fact or issue in the case, was admitted in violation of Appellant [sic] right to confront witnesses under the U.S. and Pennsylvania constitutional right to confrontation, and where none of the criminal activity referred to in the statements or referenced during testimony related specifically to Appellant?
2. Whether the trial court erred, in violation of the confrontation clause and Appellant's 6th Amendment and Art. I, sec. 9 of the Pennsylvania Constitutions' right to counsel by limiting the Appellant's ability to cross examine the eyewitness regarding instances he possessed firearms, his firearms convictions and arrests, and any sentences and/or probations he has served or was serving for a firearm offense?
3. Whether the trial court erred in admitting evidence of Appellant's prior conviction for a weapons offense for an arrest in 2006 in violation of Pa.R.E. §§ 401 and 403, where the gun was confiscated and presumably destroyed after the
conviction, and where the alleged prior offense occurred more than two years prior to the current offense?Appellant's Brief at 3-4.
4. Whether the evidence was sufficient to convict the Appellant where the only evidence of the alleged offense came from a tainted source that lack [sic] credibility where his first statement to police occurred 5-6 months after the incident, where he was involved in other shooting incidents, where he had been convicted on multiple occasions of firearm offenses, where the witness had consistently testified during and since the preliminary hearing that the Appellant did not commit the offense, and where the physical evidence at trial conflicted with his testimony regarding how the offense occurred?
5. Whether the trial court erred in permitting the jury to review the statement(s) of Kalim Williams during jury deliberations where the statements contained highly prejudicial statements unrelated to the offense for which the Appellant was on trial, specifically where Appellant was not named as an offender or potential offender in the unrelated events testified to during the trial which resulted in an unfair trial?
6. Whether the verdict was against the weight of the evidence?
To the extent Appellant alludes to hearsay statements provided by Williams, he fails to identify what those statements are and whether he properly preserved a hearsay challenge by making an objection on the record. Accordingly, any hearsay concerns on appeal are waived. See Pa.R.A.P. 2119(a). Insofar as Appellant may characterize as hearsay Williams' account of gang activity, Appellant is mistaken. As detailed infra in footnote 6, Williams testified about his first-hand, personal experience with gang activities between the 56th and 60th Street gangs. Also, to the extent Appellant's first issue implicates Confrontation Clause concerns, we must agree with the Commonwealth that those concerns are waived. Appellant fails to discuss and develop in any meaningful way how Williams' written statements to the police run afoul of the Confrontation Clause. See Commonwealth v. Antidormi , 84 A.3d 736, 754 (Pa. Super. 2014) (noting that it is settled that where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived); see Pa.R.A.P. 2119(a) (providing that each point treated in an argument must be "followed by such discussion and citation of authorities as are deemed pertinent").
Preliminarily, we note that Appellant's fourth and sixth issues are waived. Even though Appellant's fourth argument refers to sufficiency of evidence, it does not appear to challenge the sufficiency of the evidence with respect to any elements of the crimes for which he was convicted. Viewed in context, Appellant's fourth argument assails only the jury's credibility determination to the extent it found Williams' testimony to be credible. See Commonwealth v. Mobley , 14 A.3d 887, 889-90 (Pa. Super. 2011) ("It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder."). Assuming Appellant properly challenged sufficiency, he still would not obtain relief based on the reasons outlined in the trial court's Rule 1925(a) opinion, which we adopt by reference. See Trial Court's Rule 1925(a) Opinion, 6/30/15, at 10-13. Appellant's sixth issue, relating to weight of the evidence is waived. Appellant did not raise weight of the evidence before the trial court orally on the record, by written motion before sentencing, in a post-sentence motion, or in his Rule 1925(b) statement. See Pa.R.Crim.P. 607(A), Pa.R.A.P. 302(a) and 1925(b)(4)(vii).
Having disposed of Appellant's fourth and sixth issues, we now turn to Appellant's remaining four issues on appeal, all of which implicate the trial court's evidentiary rulings. It is settled:
[a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. 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. Tyson , 119 A.3d 353, 357-58 (Pa. Super. 2015) (internal citations omitted). Moreover, an appellant bears a "heavy burden" to show that the trial court has abused its discretion. Commonwealth v. Christine , 125 A.3d 394, 398 (Pa. 2015).
With the foregoing in mind, and after careful review of the parties' briefs, the record on appeal, and the relevant case law, we conclude that the trial court's 1925(a) opinion, authored by the Honorable Lisette Shirdan-Harris, cogently disposes of Appellant's first, second and fifth issues on appeal. See Trial Court Rule 1925(a) Opinion, 6/30/15, at 5-7, 9-10, and 13-14.
We now address Appellant's remaining argument, his third. Appellant argues that the trial court abused its discretion in allowing the Commonwealth to introduce into evidence Appellant's prior conviction for a firearms offense in 2006 that involved possession of a handgun of a different caliber than the one used in the shooting sub judice. Relying now on overruled cases, the trial court concluded that the Commonwealth could introduce evidence of Appellant's prior handgun possession to demonstrate that Appellant "had access to [the] same type of guns, in the same exact area where the [Victim] was shot." Trial Court Rule 1925(a) Opinion, 6/30/15, at 8. As the Commonwealth points out, however, the .45 caliber handgun Appellant possessed in 2006 was not the same gun that he used to shoot the Victim in 2008. See Commonwealth's Brief at 37. In light of Christine , the Commonwealth now urges us to uphold the trial court's evidentiary ruling on alternative grounds. Specifically, the Commonwealth argues that evidence of Appellant's prior handgun possession was admissible to demonstrate Appellant's connection to 56th Street and Walnut Street and to the 56th Street gang that controlled that location. Id. at 38. We disagree.
As the Commonwealth concedes, in Christine , which was decided during the pendency of this appeal, our Supreme Court held that a trial court abuses its discretion when it introduces a weapon into evidence that was not the weapon used in the commission of the crime giving rise to the criminal proceedings. See Christine , 125 A.3d at 400-01.
Instantly, our review of the trial transcript reveals that Appellant's connection to 56th and Walnut Street and his gang affiliation were uncontested. In addition to Williams' testimony about Appellant's gang affiliation, the Commonwealth also presented the testimony of Detective Daniel Brooks who testified that Appellant had a distinct tattoo on his arms—the number five on one arm and number six on the other. N.T. Trial, 4/4/13 at 10. Because the trial court's evidentiary ruling concerning Appellant's prior handgun possession was anchored in cases that have been overruled by Christine and Appellant's connection to the 56th and Walnut Street and the 56th Street gang were not in dispute, we are constrained to conclude that the trial court abused its discretion in admitting Appellant's prior firearms offense.
Appellant did not call any witnesses or offer any evidence in his defense.
Our inquiry, however, does not terminate here. In determining whether the trial court's error requires the grant of a new trial, we must consider whether the error was harmless.
"The harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial." Commonwealth v. Reese , 31 A.3d 708, 719 (Pa. Super. 2011) (en banc) (citation omitted).
In Commonwealth v. Cooley , 118 A.3d 370 (Pa. 2015), our Supreme Court explained that "[a]n error is harmless if it could not have contributed to the verdict. In other words, an error cannot be harmless if there is a reasonable possibility the error might have contributed to the conviction." Cooley , A.3d at 380 (citation omitted); see also Commonwealth v. Mitchell , 839 A.2d 202, 214-15 (Pa. 2003) ("An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict.").
Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.Commonwealth v. Hutchinson , 811 A.2d 556, 561 (Pa. 2002) (citation omitted).
Instantly, the trial court's admission of Appellant's prior firearm conviction was a harmless error because the properly admitted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. As stated earlier, the evidence at trial established that Appellant belonged to the 56th Street gang that was engaged in deadly hostilities with the 60th Street gang, to which the Victim and Williams belonged. It was against the backdrop of these active hostilities that Appellant shot the Victim in 2008 at 56th and Walnut Street. Williams, who was a passenger in the car, witnessed the shooting and identified Appellant, who was only three feet away from the driver's side of the car, as the shooter. Williams had known Appellant since childhood. The admission of Appellant's prior firearm conviction only established that Appellant illegally possessed a firearm two years prior. There was no connection between this possessory conviction and any other crime. As mentioned, the Commonwealth presented overwhelming evidence to the jury identifying Appellant as the shooter in this case and demonstrating that violent confrontations occurred between the two rival gangs, and Appellant's membership in one of them. Based on this overwhelming evidence, the admission of Appellant's prior conviction for illegally possessing a firearm was not so prejudicial such that evidence of this prior conviction could have contributed to the verdict.
In sum, we affirm Appellant's judgment of sentence. We direct that a copy of the trial court's June 30, 2015 Rule 1925(a) opinion be attached to any future filings in this case.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/21/2016
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