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Commonwealth v. Rashid

Superior Court of Pennsylvania

April 21, 2017


         Appeal from the Judgment of Sentence December 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000494-2015

          BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E. [*]


          STEVENS, P.J.E.

         Appellant Tariq Rashid appeals from the judgment of sentence of life in prison entered in the Court of Common Pleas of Philadelphia County on December 15, 2015, following his jury trial convictions of one count each of First Degree Murder, Possession of an Instrument of Crime and Firearms not to be carried without a license.[1] We affirm.

         The trial court aptly set forth the relevant facts herein as follows:

Around 3:00 A.M. on May 23, 1999, the decedent, Warner Freeman ("Freeman") also known as "Hip hop" was playing a dice game on Landsdowne Avenue between 55th and Allison Streets in the City and County of Philadelphia. (N.T. 12/9/15 at 71-76) Rashawn Holmes ("Holmes") also known as "Shawn" and Appellant's cousin, Harvey Meyers ("Meyers") joined the game. Id.; N.T 12/14/15 at 16. An argument ensued between Freeman and Meyers, and Freeman got into a car and drove away. (N.T. 12/9/15 at 76-88) The group was still playing dice when Freeman returned shortly thereafter, exited the car, resumed his argument with Meyers and shot him three to four (3-4) times in the upper body with a handgun. Id. Meyers died as a result of his wounds. Holmes made a statement to police and identified Freeman, who was unknown to him, as the shooter. Id.
On June 13, 1999, Antonio Connor ("Connor") also known as "Tone" was double-parked in his Oldsmobile Cutlass at the 1400 block of Redfield and Master Streets in the City and County of Philadelphia. Id. at 196-213. Freeman, seated in the passenger seat of the Cutlass, was to meet Kareem McBride ("McBride") at that location. (N.T. 2/11/15 at 103-110). Both Connor and Freeman lived in the area. (N.T. 12/9/15 at 191). Freeman had the passenger side window rolled down and was talking to various people he knew from the neighborhood. Darnell Jones ("Jones") spoke to the men briefly and walked southbound. (N.T. 12/1/15 at 146-147). Jones saw the Appellant at the end of the block and Appellant asked who was in the Cutlass. Id. Jones indicated it was Freeman and Connor and Jones watched Appellant get into his car and drive in the direction of the double-parked Cutlass. Id. Freeman was talking to his friend William Cummings ("Cummings"), a pedestrian who was also from the neighborhood, when Appellant pulled up behind Connor's Cutlass and exited his own vehicle. (N.T. 12/9/15 at 128-129, 132-148). Cummings observed Appellant, who was known to him, walking towards Freeman's side of the car. Id. Jones could also see Appellant from his vantage point. Cummings saw Appellant reaching for his waistband and Cummings ran. (N.T. 12/9/15 at 142-144). Appellant fired three to four (3-4) shots at Freeman, striking him. McBride, who was on the 1300 Block of Redfield Street, also saw the incident. (N.T. 12/9/15 at 108-122). Connor transported Freeman to Lankenau Hospital, where he was pronounced dead at 10:35 P.M. Id. at 197.
An autopsy was performed by Deputy Medical Examiner Dr. Ian Hood. (12/11/15 at 252-276). Upon reviewing the case file and photos of Freeman's autopsy, Chief Medical Examiner Dr. Sam Gulino testified as Dr. Hood was no longer with the Philadelphia Medical Examiner's Office. Id. Dr. Gulino determined the cause of death was a gunshot wound to the torso. Id. The manner of death was found to be homicide. Id. Freeman was shot approximately two (2) times, one (1) bullet went through the right forearm exited, and entered Freeman's right chest, where the bullet passed through Freeman's right and left lungs, aorta and liver. Id. The other bullet entered the left forearm. Id. Three (3) bullets were recovered from Freeman's body, one (1) was a bullet from a prior shooting. Id. Through ballistics analysis the bullets from the fresh wounds were found to be of .38 caliber, and fired from the same gun. (N.T. 12/14/15 at 45, 53).
On March 1, 2000, Jones was in federal custody and engaged in a proffer discussion wherein he outlined his knowledge of Freeman's death. (12/10/15 at 134-140). Jones alleged that Connor was a "drug mule" for Michael Gaffney ("Gaffney") also known as Mikael.4 Id. at 97-101. Jones also alleged that he knew Appellant to carry a .25 caliber handgun. Id. at 148.
The homicide of Freeman remained stagnant for approximately thirteen (13) years until November 19, 2014 when Cummings, in custody, made a statement to police outlining the incident. (N.T. 12/9/15 at 146-I47). It was stipulated by and between counsel that at the time of the shooting, Appellant did not have a permit to carry a firearm, and he had been arrested December 2, 2014. (N.T. 12/14/15 at 57-58).
4 Gaffney's alleged drug involvement with others is what defense counsel refers to as the "Gaffney Organization."

Trial Court Opinion, filed 7/14/16, at 3-5.

         Appellant filed a timely notice of appeal on December 31, 2015. On February 24, 2016, the trial court issued its Order to File Statement of Errors Complained of on Appeal. Appellant complied and filed the same on March 16, 2016 wherein he raised six issues. In his appellate brief, Appellant presents the following five questions for our review:

1. Did the trial court err and violate [Appellant's] right to present a defense by precluding evidence that tended to prove that someone other than [Appellant] had a motive for committing the murder?
2. Did the lower court err when it precluded the defense from impeaching a witness by concluding that the witness' Fifth Amendment privilege applied when it clearly did not?
3. Did the lower court err when it precluded the defense from impeaching an alleged eyewitness with his testimony from another matter?
4. Did the trial court err by allowing the Commonwealth to introduce evidence that [Appellant] possessed a handgun, where it was physically impossible for that gun to be involved in the crime?
5. Did the trial court err in refusing to grant a mistrial after the prosecutor improperly attacked the defense's character witnesses with irrelevant and prejudicial questions and behavior?

Brief for Appellant at 4-5.

         Appellant's first four issues challenge the trial court's decisions pertaining to the admission of evidence at trial. Our standard of review for evidentiary matters is well-established:

The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of the evidence. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Although a court may find that evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014) (citation omitted).

         Initially, Appellant avers that at numerous times throughout trial he sought to introduce testimonial evidence that Connor had a motive to kill Freeman based upon the men's involvement in the "Gaffney Organization." Appellant reasons that "if the Commonwealth was allowed to argue that [Appellant] had a motive to kill Freeman, there is no reason why [Appellant] should not have been allowed to do the same thing about somebody else." Brief for Appellant at 12. Appellant posits our Supreme Court's decision in Commonwealth v. Ward, 529 Pa. 506, 605 A.2d 796 (1992) is instructive herein. In that case, the Court held it was prejudicial error for the trial court to exclude testimony of a police detective and a Red Cross worker which would have supported the defense theory that other individuals had a motive to commit the crimes of which the defendant had been convicted and contradicted the Commonwealth's evidence of the defendant's own motive.

         Herein, the trial court ruled evidence regarding the operations of the "Gaffney Organization" was inadmissible and explained its rationale in doing so as follows:

[ ] Appellant was not precluded from introducing an alternative theory or arguing motive, he was however precluded from introducing irrelevant evidence. In his opening statement, defense counsel presented the theory that the "Gaffney Organization[, ]" a purported drug operation from the neighborhood, was responsible for Freeman's murder in 1999 and that Connor, a mule for Gaffney, had motive to kill Freeman. As an initial matter, determining whether Connor or other individuals had been involved with the Gaffney Organization in selling or moving illicit substances was of no moment in Freeman's death as that information would not have made it less probable that Appellant shot Freeman. Cummings, McBride, and Jones identified Appellant as the shooter. (N.T. 12/9/15 at 150-151; 12/11/15 at 105; 12/10/15 at 143). Appellant was permitted to question Connor and Cummings on cross-examination about their knowledge of individuals with the last name Gaffney who were from the neighborhood. (N.T. 12/9/15 at 167-169, 254; 12/10/15 at 85-[86]). Connor confirmed knowing Mikael Gaffney and Andre Gaffney. (N.T. 12/9/15 at 167-169. Connor testified he had no business interests with [the] aforementioned people. Id. at 255. Trial counsel was free to ask Connor if he wanted Freeman dead or had any prior knowledge about an attempt on Freeman's life, however counsel failed to do so. Any evidence Appellant wished to introduce to support an alternative theory was subject to the Pennsylvania Rules of Evidence, as such no relief is due.

Trial Court Opinion, field 7/14/16, at 6-7.

         Following a careful review of the certified record, the parties' submissions and the trial court's Rule 1925(a) Opinion, we find no error. A trial court does not abuse its discretion when it precludes cross-examination based upon inadmissible evidence. Commonwealth v. Hyland, 875 A.2d 1175, 1187 (Pa.Super. 2005). Appellant sought to introduce evidence pertaining to a written summary of Jones' proffer to federal authorities in 2000. Known as a 302, the typewritten document had been prepared by the FBI and consisted of a "little summary that they write for themselves as to what the witness says and the information that the witness gives." N.T., 12/10/15, at 97. When the trial court questioned him whether the 302 ...

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