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Commonwealth v. Kelly

Superior Court of Pennsylvania

October 15, 2013


Appeal from the Judgment of Sentence October 18, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011101-2008




Jahmel Kelly appeals from the aggregate judgment of sentence of eighteen to thirty-seven years incarceration imposed by the trial court following his convictions for attempted murder, aggravated assault, criminal conspiracy, carrying a firearm without a license, and person not to possess a firearm. We affirm in part, but vacate Appellant's concurrent sentence for conspiracy.[1]

The facts supporting Appellant's convictions are as follows. At approximately 9:30 p.m. on June 13, 2008, Appellant and Philip Hummel approached the sixteen-year-old victim and his girlfriend while they were sitting on the steps of the victim's house. Appellant opened fire as the victim pushed his girlfriend inside the home. The victim indicated that he knew Appellant from playing football with Appellant's younger brother and that he spent upwards of four days a week at Appellant's house playing the Madden football video game with Appellant's brother. The victim, who was a running back for his high school football team, suffered multiple bullet wounds that ended his ability to play football. In addition, due to the shooting, the victim and his family were relocated to another state based on safety concerns.

The victim did not identify Appellant as the shooter at Appellant's preliminary hearing, but at trial steadfastly maintained that Appellant and Hummel were his attackers. Both Appellant and Hummel disappeared prior to their trials. A jury initially convicted Appellant in absentia of attempted murder, aggravated assault, a general conspiracy verdict, and carrying an unlicensed firearm. Following its verdict on those charges, it then reached a guilty verdict as to the person not to possess a firearm count. Thereafter, on October 18, 2010, the trial court sentenced Appellant in absentia to ten to twenty years for attempted murder, three to seven years consecutive for carrying a firearm without a license, and a consecutive term of five to ten years for person not to possess a firearm. The court also imposed a concurrent ten-to-twenty-year sentence for the conspiracy charge.[2] Appellant did not timely appeal. The public defender's office, however, timely filed a PCRA petition on January 14, 2011. The court appointed counsel, who submitted an amended petition seeking the reinstatement of Appellant's direct appeal rights. The PCRA court granted the petition on November 1, 2011, and Appellant filed his notice of appeal on November 9, 2011. The court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the court authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for our review. Appellant presents two issues for our consideration.

I. Did the trial court err in trying the [A]ppellant in absentia?
II. Was the evidence sufficient to convict the [A]ppellant of attempted murder, aggravated assault, conspiracy, and violations of [the] uniform firearms act?

Appellant's brief at 2.[3]

As a successful sufficiency of the evidence claim precludes a re-trial and results in discharge as to the crime in question, we address Appellant's sufficiency challenges at the outset. Commonwealth v. Brown, 52 A.3d 320, 324 (Pa.Super. 2012). In analyzing such claims, "we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt." Id. at 323. Critically important, we must draw all reasonable inferences from the evidence in favor of the Commonwealth as the verdict winner. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013). "Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail." Brown, supra at 323. Of course, "the evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Id.

The Commonwealth can meet its burden "by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances." Id. It is improper for this Court "to re-weigh the evidence and substitute our judgment for that of the fact-finder." Id. Additionally, "the entire record must be evaluated and all evidence actually received must be considered." Id.

Appellant argues that the sole evidence against him was the testimony of the victim, "who initially told the police that he did not know who committed the crimes, " and testified at the preliminary hearing that he was unsure whether Appellant shot him. Appellant's brief at 9-10. He summarily argues that "the testimony of the complainant when viewed with all the rest of the evidence introduced is not believable and the verdict of guilt is based on suspicion only[.]" Id. at 10. Since Appellant's entire limited argument revolves around a credibility determination, which this Court does not make, his claim necessarily fails.

Having determined that the sufficiency argument Appellant advances is unavailing, we address his trial in absentia position. Appellant begins by asserting that he has a state and federal constitutional right to be present at his trial. He continues that Pa.R.Crim.P. 602 requires a defendant to be present at every stage of the trial. At the time of Appellant's trial, that rule provided:

(A) The defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the ...

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