J-A21008-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

HAKIM BOND, 

 Appellant No. 3473 EDA 2012 

Appeal from the Judgment of Sentence July 20, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0007714-2009 

BEFORE: BOWES, OTT, and STRASSBURGER,*JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 07, 2014 

 Hakim Bond appeals from the judgment of sentence of life 

imprisonment without parole imposed by the trial court after a jury found 

him guilty of first-degree murder, conspiracy to commit murder, and 

possession of an instrument of crime. As Appellant was a juvenile at the 

time of the commission of the crimes, we vacate his judgment of sentence 

pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012), and 

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), and remand for resentencing. In all other respects, we affirm. 

 On January 20, 2006, Marvin Flamer drove Appellant, a juvenile, and 

Nafeast Flamer to the 2200 block of West Pierce Street, Philadelphia. The 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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victim, Allen Moment Jr., was conversing with Aisha Williams outside of a 

Chinese restaurant at that location.1

 As Ms. Williams began to walk away, 

Appellant and Nafeast Flamer exited the car and fired a barrage of bullets at 

the victim, striking the victim fourteen times. Mr. Moment staggered into 

the arms of Ms. Williams, who cradled him until the arrival of police. Despite 

being shot in his abdomen, chest, and both legs, Mr. Moment initially 

survived the attack. Mr. Moment at first declined to identify his attackers as 

did Ms. Williams. Due to the shooting, Mr. Moment remained confined to a 

hospital bed and had to be fed intravenously for the remainder of his life. 

Since the victim had to be fed intravenously and used a catheter to urinate, 

he was subject to a high risk of infection and repeatedly suffered from blood 

poisoning and line sepsis.2

____________________________________________ 

1

 Ms. Williams, in a statement to police, indicated that she wished to 

purchase drugs from the victim. 

2

 The Commonwealth introduced into evidence a letter from Appellant’s 

doctor at the Hospital of the University, which detailed his medical 

complications as follows: 

 Allen Moment Jr. was admitted to the Hospital of the

University of Pennsylvania on 1/21/06 after sustaining multiple 

gunshot wounds to his abdomen, pelvis, and lower extremities. 

He was brought emergently to the operating room where he 

underwent exploratory laparotomy, multiple bowel resections 

and bladder repair. His post-operative course was extremely 

complicated. He developed bilateral lower extremity 

compartment syndrome, renal failure, multiple entercoutaneous 

fistulas, short gut syndrome, pericarditis with acute pericardial 

pneumonias, line infections, and urinary tract infection. He 

(Footnote Continued Next Page) 
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 At the end of January 2008, Mr. Moment was taken to the Intensive 

Care Unit of Hospital of the University of Pennsylvania due to line sepsis. 

Mr. Moment’s physician informed him and his family that he was likely going 

to die within several days. Accordingly, Mr. Moment requested to speak with 

police. Detectives interviewed Mr. Moment on February 4, 2008, while he 

was in the presence of his mother and an uncle. Mr. Moment named Marvin 

Flamer, and selected Appellant and Nafeast Flamer from photographic arrays 

as his assailants. Mr. Moment and Appellant had been friends for many 

years and the Flamers were his cousins. Two days after this statement, Mr. 

Moment identified Marvin Flamer from a photograph and indicated that he 

had been the driver of the vehicle involved. He again asserted that 

Appellant and Nafeast Flamer had shot him. Police also took a videotaped 

statement from the victim on February 14, 2008. Mr. Moment repeated that 

Appellant and Nafeast Flamer had shot him and Marvin Flamer had driven 

the car used in the incident. 

(Footnote Continued) _______________________ 

developed critical care myopathy which left him essentially 

quadriplegic. He required constant nursing care and frequent 

intensive care unit admissions. During the course of his 2 1⁄2 

year hospitalization he required multiple surgical procedurse 

including re-laparotomy, multiple bowel anastomosis, split 

thickness skin grafts, incision and drainage of lower extremities, 

tracheostomy, supra-pubic bladder drainage, thoracotomy, 

craniectomy, cholecystostomy tube placement, and multiple 

central venous lines. 

Commonwealth’s Exhibit C-8, Letter from Dr. Carrie Sims, 12/19/08. 
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 Upon receiving this information from the victim, police sought 

information from Ms. Williams. Ms. Williams confirmed on both March 17, 

2008, and August 29, 2008, that Appellant was one of the shooters, and 

identified both Marvin and Nafeast Flamer as additional perpetrators. At 

trial, however, Ms. Williams retracted these statements. 

 The victim died on August 6, 2008. Subsequently, on September 6, 

2008, the Commonwealth charged Appellant with homicide, conspiracy to 

commit murder, and PIC. The Commonwealth and Appellant litigated 

several pre-trial motions, including a motion by the Commonwealth to 

introduce evidence regarding the death of an eyewitness, Abdul Taylor. Mr. 

Taylor was allegedly killed at the behest of Appellant’s co-defendants. The 

court severed Appellant’s trial from the trial of his co-defendants, and 

granted in part and denied in part the Commonwealth’s motion. The court 

also held under advisement a portion of the motion. Specifically, relevant to 

this appeal, the court admitted testimony from two detectives who took a 

statement from Mr. Taylor on August 13, 2008, but noted that the statement 

was subject to redaction regarding Appellant. The Commonwealth filed an 

interlocutory appeal, but later discontinued it. Thereafter, Appellant 

proceeded to a jury trial on July 16, 2012. During the prosecutor’s opening 

statement, he referred to Appellant’s co-defendants having killed Mr. Taylor. 

The court also admitted into evidence, as dying declarations, several 

statements from the victim implicating Appellant in the shooting. 
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 At the conclusion of the trial, the jury found Appellant guilty of the 

aforementioned crimes. The court sentenced Appellant on July 20, 2012, to 

life imprisonment without parole for the first-degree murder charge and 

imposed no further penalty on the remaining counts. Appellant filed a timely 

post-sentence motion, which the court denied by operation of law. 

Subsequently, Appellant filed a pro se notice of appeal, and the court 

ultimately appointed substitute counsel.3

 Original appellate counsel 

withdrew and the court appointed current counsel. 

The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. Appellant complied, 

and the court authored its Rule 1925(a) opinion. The matter is now ready 

for this Court’s review. Appellant raises five issues in his principal brief.

[1.] Whether there was prosecutorial misconduct at trial, which 

tainted the trial and violated appellant’s right to a fair trial under 

the U.S. Constitution 5th, 6th, and 14th Amendments and Pa. 

Constitution Art. I § 9, when the prosecutor violated the 

amended pretrial order (by [a] motion’s judge) which specifically 

barred [the] Commonwealth from introducing any statements or 

comments to the jury which would implicate the appellant in the 

killing of an eyewitness. 

[2.] Whether the trial court committed substantial legal error, 

violating appellant’s right to a fair trial under [the] U.S. 

Constitution 5th, 6th, and 14th Amendments and Pa. Constitution 

Art. I § 9, when it denied appellant’s oral motion for 

extraordinary relief for misconduct of the prosecutor in

____________________________________________ 

3

 Appellant had privately retained counsel for purposes of his trial. 

According to Appellant, that attorney declined to file a notice of appeal on 

his behalf. 
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prejudicial opening statements to the jury, in direct violation of 

the motion judge’s amended pretrial order.

[3.] Whether the trial court committed substantial legal error, 

which was highly prejudicial to appellant, when it admitted a 

statement into evidence as a supposed “dying declaration” from 

a victim who did not die until approximately 2 1⁄2 years after the 

incident and several months after making the supposed “dying 

declaration”. 

[4.] Whether the trial court committed substantial legal error, 

which was highly prejudicial to appellant, when it allowed a 

supposed “dying declaration” into evidence without redacting 

allegations relating to an unrelated, uncharged homicide, which 

the declaration attributed to the appellant and codefendant. 

[5.] Whether the verdict was against the weight and sufficiency 

of the evidence.4

Appellant’s brief at 4-5.

At the outset, we discuss Appellant’s sufficiency of the evidence 

argument as a successful sufficiency challenge warrants discharge and not a 

retrial on the relevant crimes. We review the sufficiency of the evidence by 

considering the entire record and all of the evidence admitted at trial. 

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). 

We view such evidence in a light most favorable to the Commonwealth as 

the verdict winner, drawing all reasonable inferences from the evidence in 

____________________________________________ 

4

 Appellant has also filed a reply brief raising for the first time the lawfulness 

of Appellant’s sentence under Miller v. Alabama, 132 S.Ct. 2455 (2012), 

and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013). Generally, it is 

improper to raise and present new issues in a reply brief. Commonwealth 

v. Basemore, 744 A.2d 717, 726-727 (Pa. 2000). However, as this Court 

may consider legality of sentence issues sua sponte, we discuss this issue in 

the body of this memorandum. 
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favor of the Commonwealth. Id. When evidence exists to allow the factfinder to determine beyond a reasonable doubt each element of the crimes 

charged, the sufficiency claim will fail. Id. 

The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.” 

Id. In addition, the Commonwealth can prove its case by circumstantial 

evidence. Where “the evidence is so weak and inconclusive that, as a 

matter of law, no probability of fact can be drawn from the combined 

circumstances[,]” a defendant is entitled to relief. This Court is not 

permitted “to re-weigh the evidence and substitute our judgment for that of 

the fact-finder.” Id. 

Instantly, Appellant’s sufficiency argument is hinged entirely on the 

basis that the prosecutor wrongly attributed two additional homicides to 

Appellant and the court erred in admitting the dying declaration. However, 

this argument has no bearing on a sufficiency analysis. This Court considers 

all of the evidence introduced, even erroneously admitted evidence. 

Further, aside from citing one case relative to our standard of review, 

Appellant offers no legal support for his position. Here, viewing the evidence 

in a light most favorable to the Commonwealth, it is clear that sufficient 

evidence exists to show that Appellant possessed a weapon with intent to 

commit a crime, shot and killed the victim, and conspired to do so with 

Nafeast and Marvin Flamer. Appellant’s sufficiency claim is devoid of merit.
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Having rejected Appellant’s sufficiency argument, we now proceed to 

examine his remaining issues. Appellant’s first challenge is to the 

prosecutor’s opening statement. Specifically, he contends that the 

prosecutor violated a pretrial order precluding the Commonwealth from 

introducing evidence that Appellant was involved in the killing of Abdul 

Taylor, a witness to the shooting in this matter who was shot in the head 

and killed prior to Appellant’s trial. Appellant’s case had been severed from 

his co-defendants because there was significant evidence that his codefendants and another individual conspired to kill Mr. Taylor, but there was 

no evidence tying Appellant to that murder.5

 

Appellant maintains that “[o]nce the jury heard the prosecutor’s 

opening that a witness was killed, and the prosecutor wrongly names the 

appellant as a perpetrator in that crime, he inflamed the jury and tainted the 

entire trial.” Appellant’s brief at 11. He adds that the court erred in 

declining to issue a cautionary instruction as requested. 

The Commonwealth rejoins that Appellant did not object to the 

prosecutor’s opening statement and has waived the issue. It acknowledges 

that Appellant did request the court to instruct the jury to disregard 

evidence of an uncharged crime, but that this objection occurred after the 

____________________________________________ 

5

 The evidence linking Nafeast and Marvin Flamer to the death of Mr. Taylor 

is partially outlined in Commonwealth v. Flamer, 53 A.3d 87 (Pa.Super. 

2012). 
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opening statement and was not in reference to the killing of Mr. Taylor. The 

Commonwealth continues on the merits that the prosecutor’s opening did 

not suggest Appellant was involved in the death of Mr. Taylor. Rather, it 

submits that the prosecutor set forth, “The evidence overwhelmingly 

[shows] that Nafeas[t] and Marvin conspired to kill Abdul, and he was killed; 

Executed.” N.T., 7/17/12, at 26. In addition, the Commonwealth notes that 

the jury did not hear any evidence implicating Appellant in the death of Mr. 

Taylor, and the jury was properly instructed that counsel’s arguments are 

not evidence. 

Statements made by a prosecutor during his opening or closing 

argument are “reversible error only if the prosecutor deliberately attempts to 

destroy the objectivity of the jury and the unavoidable effect of the remark 

is to create such a bias and hostility toward the defendant that the jury 

would be unable to render a true verdict.” Commonwealth v. Mollett, 5 

A.3d 291, 311 (Pa.Super. 2010) (citing Commonwealth v. Laird, 988 A.2d 

618, 644 (Pa. 2010)). As our Supreme Court has opined, 

“The purpose of an opening statement is to apprise the jury how 

the case will develop, its background and what will be attempted 

to be proved; but it is not evidence.” Commonwealth v. 

Montgomery, 533 Pa. 491, 498, 626 A.2d 109, 113 (1993) 

(citing Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 

1383 (1983)). In Montgomery, we acknowledged that “as a 

practical matter the opening statement can often times be the 

most critical stage of the trial, because here the jury forms its 

first and often lasting impression of the case.” Montgomery,

533 Pa. at 498, 626 A.2d at 113. The prosecution, as well as the 

defense, is afforded reasonable latitude in presenting opening 

arguments to the jury. Commonwealth v. Jones, 530 Pa. 591, 
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607, 610 A.2d 931, 938 (1992). Such latitude is not without 

limits. 

“A prosecutor's statements must be based on evidence 

that he plans to introduce at trial, and must not include mere 

assertions designed to inflame the jury's emotions.” 

Commonwealth v. Begley, 566 Pa. 239, 274, 780 A.2d 605, 

626 (2001) (citing Jones, supra). A prosecutor's opening 

statements may refer to facts that he reasonably believes will be 

established at trial. Id.

Commonwealth v. Parker, 919 A.2d 943, 950 (Pa. 2007). 

Appellant’s claim fails for multiple reasons. First, he waived the issue 

by failing to object. Further, the prosecutor did not indicate that Appellant 

was involved in the death of Mr. Taylor, and the jury was properly instructed 

that counsel’s arguments are not evidence. For all these reasons, Appellant 

is not entitled to relief. 

The second issue Appellant levels on appeal is that the court erred in 

denying his oral motion for extraordinary relief based on the prosecutor’s 

opening argument relative to Mr. Taylor’s death. Setting aside that 

Appellant offers no citation in support of the merits of his position and 

includes only one boilerplate citation, this issue fails for the same reasons 

outlined in discussing Appellant’s prior claim. 

Appellant’s third claim is that the trial court erred in admitting the 

victim’s statements to police implicating Appellant as dying declarations. 

Appellant contends that because the victim’s statements were made to 

police more than two years after he was shot, “it does not seem likely that 
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he experienced a sense of urgency that his life was imminently slipping away 

when he gave his statement to homicide detectives.” Appellant’s brief at 17. 

The Commonwealth replies that the “admissibility of a dying 

declaration turns on the declarant’s state of mind when he made the 

statements, not on how long the miracles of medical science enable him to 

survive for a longer period against all odds.” Commonwealth’s brief at 11. 

It maintains that, at the time the victim made his statements, his doctor had 

informed him that he was going to die, likely within days. Thus, the 

Commonwealth submits that the victim’s state of mind at the time of his 

statements was that his death was imminent. 

The Pennsylvania Rules of Evidence permit the introduction of a dying 

declaration as an exception to the hearsay rule. At the time of Appellant’s 

trial, the rule permitted “[a] statement made by a declarant while believing 

that the declarant’s death was imminent, concerning the cause or 

circumstances of what the declarant believed to be impending death.” 

Former Pa.R.E. 804(b)(2) (rescinded and replaced effective March 18, 

2013). This rule is derived from longstanding Pennsylvania law. In 

Kilpatrick v. Commonwealth, 31 Pa. 198 (1858), the High Court declared 

that dying declarations were inadmissible “unless at the time the declarant 

made them he was in actual danger of death; unless he believed death was 

impending, not distant; and unless death actually ensued.” Id. at 215. 

There the victim died nine days after his statement. The Kilpatrick Court 
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found that the victim’s statements were made under a sense of impending 

death. In this respect, the Court recognized: 

It is enough, if it satisfactorily appears, in any mode, that they 

were made under that sanction; whether it be directly proved, 

by the express language of the declarant, or be inferred from his 

evident danger, or the opinions of the medical or other 

attendants stated to him, or from his conduct, or other

circumstances of the case, all of which are resorted to in order to 

ascertain the state of the declarant's mind.

Id. More recently, this Court has explained, “A statement is a dying 

declaration and, therefore, admissible hearsay if the declarant believes he or 

she is going to die (which can be inferred from the surrounding 

circumstances), death is imminent, and death actually results.” 

Commonwealth v. Priest, 18 A.3d 1235, 1241 (Pa.Super. 2011). 

In this case, the surrounding circumstances establish that the victim 

believed that his death was imminent. Specifically, after being readmitted to 

the Intensive Care Unit, his doctor informed him and his family that he was 

close to dying. The victim, after expressing his love for his mother, and 

telling her that he was not afraid, asked to speak with detectives. The 

victim’s mother contacted police on January 31, 2008, and said that her son 

might not make it much longer and wished to tell police who shot him. 

Thereafter, on February 4, 2008, the victim identified Appellant as one of his 

attackers. He reiterated his identification on February 6, 2008, and in a 

videotaped interview on February 14, 2008. The officer who taped the 

interview testified that it was “the first time that I ever videotaped anything, 
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and it was just due to Allen’s condition.” N.T., 7/19/12, at 42. He added, “I 

believed the man was going to die shortly.” Id. at 44. 

Our Supreme Court has previously ruled that the fact that a victim did 

not die for a month after her statement did not preclude the admissibility of 

the statement where the individual believed death was approaching. 

Commonwealth v. Stickle, 398 A.2d 957 (Pa. 1979). Although the victim 

in this matter survived for an additional seven months after the doctor 

informed him that he was going to die soon, the facts of this case establish 

that he believed that his death was imminent. Accordingly, we find no error 

by the trial court. 

Appellant in his penultimate issue asserts that the trial court erred in 

allowing the victim’s dying declaration to be admitted unredacted since that 

statement implicated Appellant and his co-defendants in the death of 

another person, Anthony Dickerson. In advancing his argument, Appellant 

points out that the victim’s statement to police indicated that Appellant and 

Nafeast Flamer wanted to kill him because they believed the victim was 

seeking revenge for their killing of the victim’s friend, Mr. Dickerson. 

Appellant notes that there was no proof that he was involved in the death of 

Mr. Dickerson, and he was not charged for that crime. According to 

Appellant, the court’s failure to redact the victim’s reference to this homicide 

was error. 
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The Commonwealth responds that Appellant’s claim is waived because 

he did not seek a redaction prior to trial and did not object at the time the 

statement was read. Instead, Appellant objected after the witness who read 

the statement, a police officer, left the witness stand. With respect to the 

merits, the Commonwealth maintains that evidence of other bad acts is 

admissible for various purposes. It contends that evidence of a defendant’s 

bad act is admissible to show motive or as part of the res gestae of the case. 

We agree that evidence that the victim was shot to prevent him from 

retaliating against Appellant for the shooting of Mr. Dickerson was 

admissible as evidence of Appellant’s motive. See Pa.R.E. 404(b); 

Commonwealth v. Green, 76 A.3d 575 (Pa.Super. 2013). Thus, Appellant 

is not entitled to relief. 

In Appellant’s final claim, he challenges both the sufficiency and the 

weight of the evidence. We have previously addressed Appellant’s 

sufficiency argument and now reach his weight of the evidence position. 

“Appellate review of a weight claim is a review of the exercise of discretion, 

not of the underlying question of whether the verdict is against the weight of 

the evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) 

(italics in original). Accordingly, “[o]ne of the least assailable reasons for 

granting or denying a new trial is the lower court's conviction that the 

verdict was or was not against the weight of the evidence[.]” Id. 
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A court should not grant a new trial due to “a mere conflict in the 

testimony[.]” Id. Instead, the court must examine whether 

“‘notwithstanding all the facts, certain facts are so clearly of greater weight 

that to ignore them or to give them equal weight with all the facts is to deny 

justice.’” Id. Only where the jury’s finding “is so contrary to the evidence 

as to shock one's sense of justice” should a defendant be afforded a new 

trial. Id. 

In the present case, there are not certain facts that clearly outweigh 

those in support of Appellant’s guilt. Appellant was identified by his victim 

as one of the shooters on multiple occasions while he believed his death was 

imminent. Further, Ms. Williams’ prior statements to police, admitted as 

substantive evidence, corroborated the victim’s account. Appellant’s weight 

claim is meritless. 

As noted, Appellant filed a reply brief raising for the first time that he 

was a juvenile at the time he committed this crime. Therefore, he submits 

that he could not be sentenced to a mandatory term of life imprisonment. 

The Commonwealth does not dispute Appellant’s claim. Accordingly, since 

the issue relates to the legality of his sentence, and in light of Miller, supra

and Batts, supra, we vacate his judgment of sentence and remand for 

resentencing. 
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Judgment of sentence vacated. Case remanded for re-sentencing. 

Commonwealth’s motion for post-submission communication filed July 29, 

2014 is granted. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/7/2014