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Commonwealth v. Akhmedov

Superior Court of Pennsylvania

July 29, 2019


          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



          PANELLA, J.

         Appellant, Khusen A. Akhmedov, challenges his judgment of sentence entered in the Philadelphia County Court of Common Pleas, after the trial court convicted him of, inter alia, four counts of third degree murder.[1] Appellant was participating in a drag race when he struck and killed a mother and three of her children as they attempted to cross the street. Appellant now contests the sufficiency of the evidence sustaining his convictions. Specifically, he claims the Commonwealth failed to prove he acted with malice by driving under circumstances that virtually assured injury or death. We disagree and affirm Appellant's judgment of sentence.

         The relevant facts and procedural history of this case are as follows. On July 16, 2013, around 10:30 p.m., Appellant was driving a silver Audi at high speed on Roosevelt Boulevard. Witnesses observed Appellant's vehicle engaged in a drag race with a white Honda. The Audi and Honda were weaving in and out of traffic, almost striking each other's vehicles, and at one point driving so close to one another that their cars appeared hitched together. The racers forced other drivers on the road to swerve to avoid the two speeding cars.

         Witnesses stated the cars were driving at least 70 miles per hour, well above Roosevelt Boulevard's posted speed limit of 40 miles per hour. Some observers believed the cars were traveling as fast as 90-100 miles per hour. Their driving caused one witness to remark that the racers were "going to cause an accident." N.T. Trial, 7/9/15, at 61.

         The drivers approached the intersection of Roosevelt Boulevard and 2nd Street. The intersection did not have a crosswalk and was not intended for pedestrian traffic. The incline of the road limited visibility to just over 400 feet. As the drag racers crested the hill and continued their competition, they encountered Samara Banks and three of her children, who were crossing the street. Appellant attempted to avoid hitting them, but was unable to stop his car in time. Banks and one of her children were killed instantly. Two of her other children died from their injuries at area hospitals shortly thereafter.[2]Appellant remained at the scene until emergency responders arrived and was arrested.

         Appellant was charged with five counts of recklessly endangering another person, and four counts each of third degree murder, involuntary manslaughter, and homicide by vehicle.[3] The court granted the Commonwealth's motion to admit evidence of prior bad acts, including: testimony about an incident of reckless driving in Lancaster County; a post from Appellant's Facebook page, hosting a video of a silver Audi drag-racing another vehicle and including comments implying Appellant's participation; and Appellant's driving record, containing numerous violations of the Traffic Code.

         Appellant proceeded to a bench trial and was convicted on all counts. He was sentenced to four to eight years' incarceration on each count of third degree murder, and one to two years' incarceration on a single count of REAP, with all sentences to be run consecutively. Appellant's remaining crimes either merged for sentencing or had no further punishment imposed, for an aggregate of seventeen to thirty-four years' incarceration. He filed a timely post-sentence motion, which was denied. Appellant filed a timely notice of appeal and complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). This appeal is now properly before us.

         Appellant presents the following questions for our review:

Whether the trial court abused its discretion when it granted the Commonwealth's motion in limine to admit evidence of prior bad acts?
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?
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]?
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?
Whether the trial court abused its discretion by ignoring mitigating factors and ordering an excessive sentence?

         Appellant's Substitute Brief, at 8.[4]

         Appellant first challenges the admission of three pieces of prior bad acts evidence at trial. Appellant avers the introduction of his previous convictions for, inter alia, speeding and reckless driving, witness testimony describing one of those instances, and a video of drag racing from his Facebook account constituted impermissible propensity evidence. Appellant claims the prejudicial effect of this evidence far outweighed its probative value. Further, Appellant contends this evidence of past reckless behavior cannot clarify whether he actually acted with malice on the evening he struck Banks and her children. Appellant concludes the trial court erred in finding the evidence demonstrated Appellant's knowledge of the dangers of his conduct as well as his intent to engage in reckless activity.

         The trial court has discretion over the admissibility of evidence, and we will not disturb such rulings on appeal absent evidence the court abused its discretion. See Commonwealth v. Ballard, 80 A.3d 380, 392 (Pa. 2013). An abuse of discretion is not a mere error in judgment. See Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012) (en banc). Rather, "discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record." Id. (citations and internal quotation marks omitted).

Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those past acts or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). In determining whether evidence of other prior bad acts is admissible, the trial court is obliged to balance the probative value of such evidence against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citation omitted). "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact." Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc) (citation omitted). "All relevant evidence is admissible, except as otherwise provided by law." Pa.R.E. 402.

         Evidence will not be excluded merely because it is harmful to a defendant's case. See Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa. Super. 2012). "The trial court is not required to sanitize the trial to eliminate all unpleasant facts … where those facts are relevant to the issues at hand[.]" Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014) (citation and internal quotations omitted).

         Mere similarities between a defendant's prior bad acts and the crimes for which he is being tried will not qualify for a Rule 404(b)(2) exception. See Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa. Super. 2016) (en banc). Rather, to qualify for an exception to Rule 404(b)(1)'s general prohibition, the prior bad acts must have a "close factual nexus sufficient to demonstrate the[ir] connective relevance" to the crime in question. Ross, 57 A.3d at 104 (finding testimony about defendant's previous assaults on other women could not be admitted to prove intent at trial for first degree murder, where defendant did not argue accident, mistake, or lack of required intent).

         To determine whether the prior bad acts evidence was relevant, we must review the charges the Commonwealth was seeking to prove. Appellant was charged with third degree murder. To sustain this conviction, the Commonwealth needed to prove that Appellant acted with malice without the specific intent to kill. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001). "[O]ur courts have consistently held that malice is present under circumstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (citation omitted).

         Malice is more than ordinary recklessness. See Commonwealth v. Hoffman, 198 A.3d 1112, 1119 (Pa. Super. 2018). Malice is "a class of wanton and reckless conduct which manifests such an extreme indifference to the value of human life which transcends the negligent killing[.]" Id.

         Parties are to be given greater latitude to present evidence when they are tasked with establishing a state of mind. See Commonwealth v. Honeycutt, 323 A.2d 775, 778 (Pa. Super. 1974). "Where recklessness, wantonness, or willfulness is an issue it is frequently necessary, or desirable in order to establish a strong case, to show not only an indifference to consequences at the instant an accident occurred, but also that such a state of mind persisted … prior to the accident." Id. (citation omitted). "Unlike the speed at which a vehicle is traveling, a state of mind which demonstrates a marked disregard for the safety of others is not likely to change significantly in a matter of seconds." Id. (citation omitted). "To restrict the compass of a trial (criminal or civil) to the pinpoint of the culminating crisis would be to make verdicts of juries mere guesses." Id. (citation omitted). "A conviction based on malice is appropriate where evidence demonstrates the element of sustained recklessness by a driver in the face of an obvious risk of harm to his victims." Commonwealth v. Kling, 731 A.2d 145 (Pa. Super. 1999) (emphasis in original).

         At trial, the Commonwealth introduced Appellant's driving record. Appellant objected to the prejudicial nature of the evidence and was overruled. The parties stipulated to the accuracy of its content: over the course of nearly six years, Appellant accumulated ten driving infractions, including six speeding citations, two convictions for reckless driving, one conviction for careless driving, and one conviction for driving while under license suspension. See N.T. Trial, 7/10/15, at 3-6.

         One of the instances of reckless driving occurred just eight days before Appellant struck Banks and her children. The Commonwealth called Melissa Stothoff and Officer Thomas Miles to testify about that incident. The trial court accurately summarized their testimony as follows:

Melissa Stothoff testified that on July 8, 2013, she was traveling on New Danville Pike in Lancaster. New Danville Pike is a two-lane roadway. Ms. Stothoff saw [Appellant's] Audi approaching her from the rear at a high rate of speed. In an attempt to have [Appellant] slow down and back away from her rear bumper, Ms. Stothoff tapped the brakes of her vehicle. [Appellant] responded by pulling next to Ms. Stothoff on the shoulder of the road to yell at her. [Appellant] then pulled behind Ms. Stothoff again and continued to follow her vehicle from a very close distance. Ms. Stothoff raised her cell phone as a signal to [Appellant] that she was calling the police. According to Ms. Stothoff, at the first traffic light, [Appellant] turned left at a red light and almost hit two vehicles. Ms. Stothoff followed [Appellant]; she saw [Appellant] pass through another red light and again almost cause an accident. She continued to follow [Appellant] to relay his position to police dispatch. She saw [Appellant] make another left at a red light and almost cause another accident. Shortly thereafter, Ms. Stothoff lost sight of [Appellant], but she had already relayed all of [Appellant's] movements as well as [Appellant's] license plate to dispatch.
Officer Thomas Miles ran [Appellant's] license plate and obtained the address associated with [Appellant's] vehicle. Another officer, Officer Binder (first name not mentioned), from a neighboring jurisdiction arrived first at the address Officer Miles had relayed. Officer Binder found the silver Audi in the driveway. When Officer Miles arrived, [Appellant] was already in the driveway with Officer Binder. Officer Miles informed [Appellant] of Ms. Stothoff's description of his driving. [Appellant] acknowledged that he passed Ms. Stothoff but denied all other accusations related to passing through red lights. Officer Miles told [Appellant] that his driving was "completely inappropriate" and cited [Appellant] for reckless driving.

         Trial Court Opinion, filed 6/28/16, at 11-12.

         The Commonwealth then introduced a video of drag racing taken from Appellant's Facebook profile page. The video depicts a silver Audi, of the same size and model as Appellant's vehicle, racing a BMW down Sandmeyer Lane in Northeast Philadelphia. See Commonwealth Exhibit 546. The Commonwealth also introduced a copy of the Facebook comments from the posted video. In response to another comment claiming the BMW was ahead in the race, a comment posted from Appellant's personal Facebook account stated "No. S-4 [the model of Appellant's silver Audi] was ahead till 110 mph and then it [the BMW] started passing slowly." Commonwealth Exhibit 547.

         We begin with the Melissa Stothoff incident. Appellant approached Stothoff's car at an aggressive speed and tailgated her bumper. Stothoff's attempts to indicate to Appellant that his conduct was unsafe resulted in further harassment, with Appellant swerving out of the lane and to the shoulder of the road to yell at her. When Stothoff signaled that she intended to call the police, Appellant responded by illegally passing her car and running several red lights.

         Appellant's conduct toward Stothoff bears significant similarities to the conduct that ultimately killed Banks and her children a mere eight days later - including high speeds, rapid lane changes, and a total disregard for the Vehicle Code. For this prior conduct, he received a citation for reckless driving. Moreover, he received an explicit rebuke afterward from Officer Miles, warning that his driving was "completely inappropriate." These facts are certainly capable of establishing Appellant was aware of the possible consequences of his aggressive driving. Thus, the trial court did not abuse its discretion in admitting it, and this issue is due no relief.

         Proceeding to the video evidence of drag racing taken from Appellant's Facebook page, we find it was properly admitted to show Appellant's intent to engage in drag racing.[5]

         The Commonwealth's case depended upon proving Appellant's intent to drag race at the time of the accident. If Appellant entered into a drag race on a local road where several other cars were driving, the Commonwealth could show Appellant acted with conscious disregard for the risks involved. Indeed, Appellant attempted to disprove the third degree murder charge by claiming he was not drag racing before the accident - a characterization of his driving that he "vigorously" continues to protest on appeal. Appellant's Brief, at 28; see also N.T. Trial, 7/9/15, at 57, 72, 98; N.T. Trial, 7/13/15, at 68. Unlike the defendant in Ross, Appellant repeatedly challenged the prosecution's intent evidence.

         As for the Ross close factual nexus, Appellant was driving down Roosevelt Boulevard in Northeast Philadelphia on the night of the accident. Appellant's vehicle was a silver Audi A4. Several witnesses testified they were first alerted to Appellant's presence when they heard his car make loud acceleration noises. They watched as Appellant sped down the road in an attempt to pass a white Honda. Witnesses believed Appellant was driving between 70 and 100 miles per hour. These witnesses, unprompted, stated their belief that the cars were engaged in a drag race. Moments after passing the witnesses, Appellant's car collided with Banks and three of her children.

         The Facebook video shows Sandmeyer Lane, a street that Sergeant Vincent Nowakowski testified is also in Northeast Philadelphia. After a few seconds of filming, the roar of acceleration is audible just before a silver Audi A4 identical to Appellant's accelerates down the road. Appellant's Audi is beside a black BMW as the two cars speed by the camera. In the video's comments section, Appellant ...

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