from the Judgment of Sentence November 2, 2015 in the Court
of Common Pleas of Philadelphia County Criminal Division at
BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.
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. We reverse in
part and remand for resentencing.
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.
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.
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.
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.
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.
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
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.
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. 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.
review a challenge to the sufficiency of the evidence as
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 ...