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Commonwealth v. Shabazz-Davis

Superior Court of Pennsylvania

May 8, 2017


         Appeal from the Judgment of Sentence March 13, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007330-2013

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


          STEVENS, P.J.E.

         Appellant Robert Shabazz-Davis appeals the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on March 13, 2015, at which time he was sentenced to life imprisonment without the possibility of parole along with a consecutive term of three and one half (3½) years to seven years in prison following his convictions of first-degree murder and firearms not to be carried without a license.[1] Appellant was a juvenile at the time of the murder, bringing his case within the purview of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286 (2013)("Batts II") (invalidating mandatory sentences of life without the possibility of parole for juvenile offenders and indicating that appellate remedy for the unconstitutional imposition of a mandatory life-without-parole sentence upon a juvenile is a remand for resentencing at which the trial court must consider the sentencing factors set forth in Miller).[2] Following a careful review, we affirm.

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

On May 28, 2012, at approximately 2:13 p.m., police officers from the 22nd District responded to a radio call of a shooting at 1732 Ridge Avenue. (N.T. 10/24/14 p. 89). Upon arrival officers found decedent Antwan Pack lying in a pool of blood on the floor inside the Sunshine Laundromat. (N.T., 10/24/14 pp. 89-90). Police Officer Joseph Kocher observed that decedent was in critical condition with multiple gunshot wounds to the back. (N.T., 10/24/14 p. 90). Eyewitness Jeffrey Noble helped police officers place Mr. Pack into a police wagon. (N.T., 10/24/14 p. 61). Mr. Noble and Officer Kocher rode in the back of the wagon with decedent as he was transported to Hahnemann Hospital. (N.T., 10/24/14 p. 91). Mr. Noble testified that en route to the hospital, Mr. Pack stated someone named "'Rob' from Highland" had shot him. (N.T., 10/24/14 pp. 68-69. Officer Kocher also testified that on the way to the hospital, Mr. Pack identified the male that shot him as "Rob." (N.T., 10/24/14 p. 92). Mr. Pack was admitted to Hahnemann Hospital and was taken to surgery, at around 3:00 p.m., in an attempt to save his life, but he was pronounced dead at 7:39 p.m. (N.T., 10/27/14 p. 100). The autopsy report showed decedent had been shot twice in the back and suffered devastating injuries including fractures to his vertebrae, which rendered him paralyzed, and lacerations of his liver, left lung, and right lung, which prevented him from breathing and ultimately caused his death. (N.T., 10/27/14 pp. 99-107). Six fired cartridge casings and one projectile were recovered from the scene of the crime. (N.T., 10/24/14 p. 53).
Eyewitnesses Antwyne Askew and Marcus Pough testified at trial about the events that took place the day decedent was shot and killed. On June 16, 2012, Mr. Askew gave an interview to homicide detectives wherein he stated that while standing on the corner of Vineyard Street and Ridge Avenue, on May 28, 2012, he observed a male on a bicycle brandish a weapon. (N.Y., 10/27/14 pp. 36-38). Seconds later, he heard gunshots. (N.T., 10/27/14 pp. 36-37). Looking in the direction of the gunshots he observed the male on the bicycle known to him as "Rob" shooting at decedent. (N.T., 10/27/14 pp. 37-40). Mr. Askew identified "Rob" as [Appellant] Robert Shabazz-Davis from a photographic array. (N.T., 10/27/14 p. 43). Further, in his interview, Mr. Askew stated that [Appellant] and decedent had previously argued with each other. (N.T., 10/27/14 pp. 44-45).1 Mr. Pough was interviewed on June 27, 2012, and he stated that on the day of the shooting, he was walking down Ridge Avenue towards the laundromat with his niece when he observed a male firing a gun into the laundromat. (N.T., 10/24/14 p. 129). Mr. Pough stated further that he saw the male place the gun in his waistband and ride off on a bicycle towards him. (Id.) Mr. Pough walked past the laundromat and observed decedent on the floor inside the laundromat suffering from gunshot wounds and screaming for help. (Id.) Later, Mr. Pough was shown a photographic array and identified [Appellant] as the male he saw firing a gun into the laundromat. (N.T., 10/24/14 pp. 139-140).2
By June 30, 2012 a number of unsuccessful attempts had been made to locate [Appellant] on an arrest warrant charging him with the murder of decedent and various weapons offenses. (N.T., 10/27/14 p. 116). Extensive efforts to apprehend [Appellant] continued without immediate success. (N.T., 10/27/14 pp. 117-124). On January 28, 2013, [Appellant's] attorney notified authorities that [Appellant] wanted to surrender. (N.T., 10/27/14 p. 124). On that same day, [Appellant] was finally arrested. (Id.)
On July 13, 2012, Daquan Johnson was arrested after fleeing police. (N.T., 10/27/14 pp. 86-91). He was found to be in possession of the firearm used to kill Antwan Pack. Id. Officer Michael Livewell testified that, according to social media websites, Mr. Johnson identified himself as a member of Highland and was one of [Appellant's] associates. (N.T., 10/27/14 pp. 13-15).
1At trial, Mr. Askew denied that he in fact made such statements and identified the shooter. (N.T., 10/27/14 p. 37-43). However, Detective Jacobs, who took Mr. Askew's statement, testified to his statements and identification. (N.T., 10/27/14 p. 70-76). The jury was given the opportunity to view the signatures above and below the photographs on the array and determine Mr. Askew's credibility regarding his denial.
2Mr. Pough denied making those statements and identifying the shooter from the photo array at trial. (N.T., 10/24/14 pp. 141-142). However, Detective Schmidt, who took Mr. Askew's statement, testified to his statements and identification. (N.T., 10/24/14 p. 170-183).

Trial Court Opinion, filed 6/28/16, at 1-3.

         On March 22, 2015, Appellant filed his "Motion for Post Sentence Relief And/Or Modification or Reconsideration of Sentence, " and the same was denied by operation of law pursuant to Pa.R.CrimP. 720(B)(3) on August 6, 2015. Appellant filed a notice of appeal pro se on August 18, 2015, and upon consideration of defense counsel's motion to withdraw and a hearing, the trial court entered an Order on October 2, 2015, granting counsel's motion to withdraw. Thereafter, on November 6, 2015, counsel was reappointed to represent Appellant on direct appeal. On June 12, 2016, Appellant filed his Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) wherein he raised ten (10) issues. The trial court filed its Rule 1925(a) Opinion on June 28, 2016.

         In his brief. Appellant presents the following Statement of the Questions Involved:

1. In Miller v. Alabama, the U.S. Supreme Court outlawed mandatory life without parole for juveniles ("LWOP"), and instructed that the discretionary imposition of this sentence should be "uncommon" and reserved for the "rare juvenile offender whose crime reflects irreparable corruption."
A. Did the Trial Court err when it imposed the sentence of life without the possibility of parole on Appellant despite the safeguards set forth by our Supreme Court in Miller v. Alabama and in contradiction of the safeguards provided by the United States Constitution and the Pennsylvania Constitution?
B. There is currently no procedural mechanism to ensure that juvenile LWOP will be "uncommon" in Pennsylvania. Should this Court exercise its authority under the Pennsylvania Constitution to promulgate procedural safeguards including (a) a presumption against juvenile LWOP, (b) a requirement for competent expert testimony, and (c) a "beyond a reasonable doubt" standard of proof?
C. In Miller, the U.S. Supreme Court stated that the basis for its individualized sentencing requirement was Graham's comparison of juvenile LWOP to the death penalty. [ ] Appellant received objectively less procedural due process than an adult facing capital punishment. Should the Court address the constitutionality of [ ] Appellant's sentencing proceeding?
D. Did the trial court err in not dismissing the case against Appellant due to the Commonwealth's blatant violations under Brady v. Maryland?
2. Did the Trial Court err in not dismissing the case against Appellant due to the Commonwealth's blatant violations under Brady v. Maryland?[3]

Brief of Appellant at 4.

         At the outset, we observe that Appellant's introductory comment and issues B and C are, verbatim, the same questions which our Pennsylvania Supreme Court agreed to consider in granting partial allowance of appeal in Commonwealth v. Batts ("Batts III"), 125 A.3d 33 (Pa.Super. 2015), appeal granted in part, 135 A.3d 176 (Pa. 2016). In addition, Appellant's issue A herein is reflected in the issues the Supreme Court will consider in Batts III.[4] Notwithstanding, we decline to postpone a decision in this case pending the Supreme Court's resolution of the appeal in Batts, III. Until our Supreme Court holds otherwise, we will employ the applicable legal principles extant currently, and ...

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