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Commonwealth v. Akhmedov

Superior Court of Pennsylvania

December 8, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
KHUSEN A. AKHMEDOV Appellant

         Appeal from the Judgment of Sentence November 2, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013582-2013

          BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.

          OPINION

          RANSOM, J.

         Appellant, Khusen A. Akhmedov, appeals from the judgment of sentence of seventeen to thirty-four years of incarceration, imposed November 2, 2015, following a waiver trial resulting in his conviction for four counts each of murder in the third degree, involuntary manslaughter, homicide by vehicle, and recklessly endangering another person.[1] We reverse in part and remand for resentencing.

         We adopt the following statement of facts from the trial court opinion, which in turn is supported by the record. See Trial Court Opinion, 6/28/16, at 2-10. On July 16, 2013, at approximately 10:30 p.m., Appellant drove southbound on Roosevelt Boulevard ("the Boulevard") in Philadelphia, Pennsylvania, which has a posted speed limit of 40 m.p.h. Appellant and the driver of another car entered into a race, with each car weaving through traffic at speeds in excess of 70 m.p.h. At times, the cars were so close to each other that they appeared "hitched" together. At three successive traffic lights the cars stopped, revved their engines, and raced to the next light. Finally, both drivers approached the intersection of the Boulevard and 2nd Street. The intersection does not have a crosswalk or signs warning drivers that pedestrians might be present, and is not intended for foot traffic. Further, the intersection is situated in such a way that it is difficult to see on approach, due to a hill.

         At the intersection, Samara Banks and her three, minor children were crossing the Boulevard. Appellant attempted to evade them but was too late to change his course. Instead, he struck Ms. Banks and the children. Appellant remained at the crash site until medical personnel and police arrived. Ms. Banks and one of the children were pronounced dead at the scene; the remaining two children passed away at hospitals the next day. Multiple eyewitnesses observed the race and subsequent crash. After the accident, a police accident reconstructionist examined the scene and determined the path of the collision. The officer concluded that at the time of impact, Appellant was traveling at a minimum speed of 79 m.p.h.

         Prior to trial, the Commonwealth litigated a motion in limine seeking to admit evidence of prior bad acts, namely, 1) an incident in Lancaster County in which Appellant almost ran another driver off the road; 2) a Facebook posting in which he "reveled" in the excitement of drag racing; and 3) Appellant's driving record, including numerous vehicular offenses. The court granted the motion and allowed admission of the evidence.[2]

         Following a bench trial in July 2015, the court convicted Appellant of the above counts. Appellant was sentenced to four to eight years of incarceration on four counts of third degree murder and one to two years for one count of REAP, all to run consecutively, for a total of seventeen to thirty four years of incarceration. The court merged the convictions for involuntary manslaughter and imposed no further sentence for charges of homicide by vehicle. Appellant filed a post-sentence motion, which was denied.

         Appellant timely appealed and filed a court-ordered statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued a responsive opinion.

         On appeal, Appellant raises the following issues for our review:

1. Whether the evidence was insufficient as a matter of law to sustain the convictions for third degree murder as the evidence failed to establish malice on the part of [Appellant]?
2. Whether the trial court abused its discretion in denying [Appellant's] motion for a new trial on the basis of the weight of the evidence?
3. Whether the trial court abused its discretion when it granted the Commonwealth's motion in limine to admit evidence of prior bad acts?
4. Whether the trial court abused its discretion in denying [Appellant's] request for a particular jury charge on the issue of malice in the context of motor vehicle fatalities?
5. Whether the trial court abused its discretion by ignoring mitigating factors and ordering an excessive sentence?

Appellant's Brief at 8.

         First, Appellant argues that the evidence is insufficient to sustain a conviction for third degree murder, as the Commonwealth did not establish that he had the requisite mens rea.[3] See Appellant's Brief at 14. Appellant claims that the evidence was insufficient to show he acted with malice, and specifically, that he did not operate his vehicle under circumstances which almost assured that injury or death would ensue. Id.

         We review a challenge to the sufficiency of the evidence as follows.

In determining whether there was sufficient evidentiary support for a jury's finding [], the reviewing court inquires whether the proofs, considered in the light most favorable to the Commonwealth as a verdict winner, are sufficient to enable a reasonable jury to find every element of the crime beyond a reasonable doubt. The court bears in mind that: the Commonwealth may sustain its burden by means of wholly circumstantial evidence; the entire trial record should be evaluated and all evidence received considered, whether or not the trial court's rulings thereon were correct; and the ...

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