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[U] Commonwealth v. Collins

Superior Court of Pennsylvania

July 22, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MALIK D. COLLINS Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence August 30, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004480-2010, CP-51-CR-0004481-2010

BEFORE: STEVENS, P.J., LAZARUS, J., and COLVILLE, J. [*]

MEMORANDUM

LAZARUS, J.

Malik Collins appeals from his judgment of sentence imposed in the Court of Common Pleas of Philadelphia County after he was found guilty of two counts of first-degree murder, [1] criminal conspiracy, [2] and possessing an instrument of crime ("PIC").[3] Upon review, we affirm.

The Honorable M. Teresa Sarmina set out the facts in her opinion:

On May 18, 2006, just before 11 p.m., Johnny Harmon . . . and Latoya Bostic . . . were shot multiple times while sitting inside . . . Harmon's truck on the 1200 block of Dover Street in Philadelphia. [In] 2006, . . . Harmon and his best friend whom he had known for 20 years, Nathaniel Dowling, were selling PCP together on the 1200 block of Dover Street. Neither of them [were] affiliated with anyone else . . . dealing drugs either on that block or on neighboring blocks. . . . [D]uring this time period . . . Dowling and . . . Harmon were having problems with neighboring drug dealers on "Thompson and Hollywood" which is a "block over" from where Dowling and . . . Harmon sold their drugs. [Defendants Anthony Collins and Malik Collins] were part of [a] group of individuals who were known to be present on the Hollywood Street corner and were known to sell drugs there. One week prior to the shooting, while Dowling was wrapping up his drug dealing for the night, two [men] had come over to him and told him to get on the ground and shot at Dowling as he . . . ran away. Dowling observed these two individuals run towards Hollywood Street.
Dowling recalled that, on the day of the murders, he had stopped his car in front of a bar at 30th and Stiles Streets and saw Antoine Collins, Anthony Collins' brother, standing outside. As Dowling drove off he saw Antoine make a phone call and, a short time later . . . Harmon was shot. After leaving the bar, Dowling drove to the 1200 block of Dover Street to meet up with . . . Harmon. The two friends were planning on going out to a club that night. Dowling parked his vehicle on the corner of Thompson and Dover Streets and walked back to the 1200 block of Dover Street, where he encountered [Harmon and Bostic], both of whom were sitting in . . . Harmon's truck. Harmon and Dowling spoke for about five minutes, after which . . . Harmon indicated that he was going to finish speaking with . . . Bostic and then go to [a] club with Dowling. Dowling left . . . Harmon and walked over to 1250 Dover Street where Harmon's niece, Deborah Stackhouse, lived.
Moments after Dowling walked into the 1250 Dover Street residence, he heard numerous gunshots. Dowling got down on the floor and, when the gunshots stopped, he got up, looked out the window, and saw somebody run in front of the window, stop, and backtrack. Dowling identified the person at the window as the defendant [Malik Collins] – a person whom he had known all his life. Dowling ran out the front door and saw that [Collins] had a gun in his hand and was running with a second person, whom he recognized as co-defendant Anthony Collins by the way he ran and his body structure. Dowling ran to his truck to get his gun and ran towards Stiles Street, towards which he had seen the defendants running.
After the gunshots, Ms. Stackhouse had run up to the second floor of her residence and looked out the window; she saw . . . Harmon's truck but did not see him moving. She also saw Dowling run to his truck and retrieve a gun. Unable to find the defendants, Dowling ran to . . . Harmon's truck and saw that his friend had a gunshot wound to the head. As a police car came up Stiles Street, Dowling ran back to 1250 Dover Street to put his gun inside the residence.
Shortly before the shooting, Elise Hinton, second cousin of the two defendants, saw the two defendants walking around 29thand Thompson Streets and saw [Collins] carrying a gun in his hand. They were headed in the direction of Dover Street. Moments after they had walked by her, Ms. Hinton heard gunshots, but did not see . . . the shooting.
Nine 9mm fired cartridge casings (FCCs) and three [.]40 caliber FCCs were recovered from the scene of the shooting. The three [.]40 caliber FCCs were determined to have been fired from the same firearm although the firearm was never recovered. The 9mm firearm did turn up more than three months later when a search warrant was executed, in an unrelated case, on August 25, 2006, at the location of 1209 Windrim Street in Philadelphia. Through a cross-check, the ballistics expert was able to determine that the nine 9mm FCCs were all fired from the weapon seized during the execution of the search warrant. The individual inside the 1209 Windrim Street residence at the time the search warrant was executed was identified as Emery Hicks. He was also known as Gutterman. A photograph of Gutterman was identified at trial by defense witness Antoine Collins, Anthony Collins' brother and cousin to the defendant, as someone he knew.

Trial Court Opinion, 4/24/2012, at 2-4 (citations and footnotes omitted).

Collins was tried with his alleged co-conspirator and cousin, Anthony Collins ("Anthony"), and found guilty of the above offenses.[4] Over the course of the trial, attorneys for both Collins and Anthony objected to the Commonwealth's solicitation of testimony regarding Collins and Anthony's involvement in the drug trade. See e.g. N.T. Trial, 8/16/2011, at 113-18, 154-57; N.T. Trial, 8/18/2011, at 8-10; N.T. Trial, 8/19/2011, at 37-39. Anthony's attorney also moved for a mistrial several times on the same basis, which the trial court denied. N.T. Trial, 8/16/2011, at 122; N.T. Trial, 8/19/2011, at 39. Additionally, Collins' attorney requested a jury instruction from the judge that Hinton's testimony should be received with care and caution. N.T. Trial, 8/22/2011, at 11-12, 39. Judge Sarmina denied the motion. Id. at 40.

The jury found Collins guilty and, on August 30, 2011, Judge Sarmina sentenced him to consecutive life sentences for each murder conviction, a concurrent 20 to 40 year sentence for the conspiracy conviction, and a concurrent 2½ to 5 year sentence for the PIC conviction. Collins filed post-sentence motions on September 2, 2011, which the trial court denied on January 5, 2012. This timely appeal followed.

Collins raises the following issues for our review:

1. Did the trial court commit an abuse of discretion by permitting the [C]ommonwealth to refer to "the Thompson University Gang" and to introduce evidence implying that appellant was involved in selling drugs?
2. Did the trial court commit an abuse of discretion by permitting . . . Dowling to testify that . . . Harmon had been threatened by members of a drug gang because the response consisted of ...

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