from the Judgment of Sentence November 2, 2015 In the Court
of Common Pleas of Philadelphia County Criminal Division at
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN,
J., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and
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. 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.
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
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.
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.Appellant remained at the scene until
emergency responders arrived and was arrested.
was charged with five counts of recklessly endangering
another person, and four counts each of third degree murder,
involuntary manslaughter, and homicide by
vehicle. 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.
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
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
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?
Substitute Brief, at 8.
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.
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.
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
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
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).
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[.]"
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
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.
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.
Court Opinion, filed 6/28/16, at 11-12.
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.
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
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
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
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.
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.
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,