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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 l ife 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 judgm ent 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

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* Retired Senior Judge assigned to the Superior Court.J-A21008- 14

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victim, Allen Moment Jr., was conversing with Aisha Wil liams 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 arr ival 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 r emained 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 repeatedl y 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 f rom Appel lant’s doctor at the Hospital of the University, which detaile d 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 extrem ities. He was brought emergently to the operating room wher e he underwent exploratory laparotomy, multiple bowel re sections and bladder repair. His post-operative course was extre mely complicated. He developed bilateral lower extremity compartment syndrome, renal failure, multiple entercou taneous fistulas, short gut syndrome, pericarditis with acute pe ricardial pneumonias, line infections, and urinary tract infectio n. He (Footnote Continued Next Page)J-A21008- 14

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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 Pennsylvani a due to line sepsis. Mr. Moment’s physician informed him and his family tha t he was likely going to die within several days. Accordingly, Mr. Moment re quested 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. Mom ent 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 th is statement, Mr. Moment identified Marvin Flamer from a photograph a nd indicated that he had been the driver of the vehicle involved. He aga in 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 essential ly qua driplegic. He required constant nursing care and frequ ent intensive care unit admissions. During the course of hi s 2 1⁄2 year hospitalization he required multiple surgical pro cedurse including re-laparotomy, multiple bowel anastomosis, spl it thickness skin grafts, incision and drainage of lower ext remities, 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.J-A21008- 14

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Upon receiving this information from the victim, pol ice 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 addition al 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 homici de, conspiracy to commit murder, and PIC. The Commonwealth and Appell ant litigated several pre-trial motions, including a motion by the C ommonwealth to introduce evidence regarding the death of an eyewitne ss, Abdul Taylor. Mr. Taylor was allegedly killed at the behest of Appellan t’s co -defendants. The court severed Appe llant’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 det ectives who took a statement from Mr. Taylor on August 13, 2008, but not ed that the statement was subject to redaction regarding Appellant. The Comm onwealth filed an interlocutory appeal, but later discontinued it. The reafter, 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 declarat ions, several statements from the victim implicating Appellant in the shooting.J-A21008- 14

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At the conclusion of the trial, the jury found Appel lant 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 operat ion 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. App ellant 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 5 th , 6 th , and 14 th 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 statem ents or comments to the jury which would implicate the appellan t in the killing of an eyewitness. [2.] Whether the trial court committed substantial leg al error, violating appellant’s right to a fair trial under [t he] U.S. Constitution 5 th , 6 th , and 14 th Amendments and Pa. Constitution Art. I § 9, when it denied appellant’s oral motion f or extraordinary relief for misconduct of the prosecutor in

____________________________________________ 3 Appellant had privately retained counsel for purpose s of his trial. According to Appellant, that attorney declined to file a notice of appeal on his behalf.J-A21008- 14

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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 leg al error, which was highly prejudicial to appellant, when it ad mitted a statement into evidence as a supposed “dying declaration” f rom a victim who did not die until approximately 2 1⁄2 year s after the i ncident and several months after making the supposed “d ying declaration”. [4.] Whether the trial court committed substantial leg al error, which was highly prejudicial to appellant, when it a llowed a supposed “dying declaration” into evidence without re dacting allegations relating to an unrelated, uncharged homic ide, which the declaration attributed to the appellant and code fendant. [5.] Whether the verdict was against the weight and su fficiency of the evidence. 4 Appellant’s brief at 4

- 5. At the outs et, we discuss Appellant’s sufficiency of the evidence argument as a successful sufficiency challenge warrants dischar ge and not a retrial on the relevant crimes. We review the suffici ency of the evidence by considering the entire record and all of the evidence a dmitted 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 f rom the evidence in

____________________________________________ 4 Appellant has also filed a reply brief raising for th e 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 bri ef. Commonwealth v. Basemore , 744 A.2d 717, 726-727 (Pa. 2000). However, as thi s Court may consider legality of sentence issues sua sponte , we discuss this issue in the body of this memorandum.J-A21008- 14

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favor of the Commonwealth. Id . When evidence exists to allow the factfinder to determine beyond a reasonable doubt each el ement 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 cir cumstantial 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 th at of the fact- finder.” Id

. Instantly, Appellant’s sufficiency argument is hinged entirely on the basis that the prosecutor wrongly attributed two additi onal 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 admit ted evidence. Further, aside from citing one case relative to our st andard of review, Appellant offers no legal support for his position. He re, 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 w ith intent to commit a crime, shot and killed the victim, and conspir ed to do so with Nafeast and Marvin Flamer. Appellant’s sufficiency c laim is devoid of merit.J-A21008- 14

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Having rejected Appellant’s sufficiency argument, we now procee d to examine his remaining issues. Appellant’s first challen ge is to the prosecutor’s opening statement. Specifically, he contends that the prosecutor violated a pretrial order precluding the Co mmonwealth from introducing evidence that Appellant was involved in the killing of Abdul Taylor, a witness to the shooting in this matter who wa s 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 tha t his codefendants and another individual conspired to kill M r. Taylor, but there was no evidence tying Appellant to that murder. 5 Appellant maintains that “[o]nce the jury heard the pr osecutor’s opening that a witness was killed, and the prosecutor wr ongly 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 obje ct to the prosecutor’s opening statement and has waived the issue. It acknowledges that Appellant did request the court to instruct the j ury to disregard evidence of an uncharged crime, but that this objection occurred after the

____________________________________________ 5 The evidence linking Nafeast and Marvin Flamer to th e death of Mr. Taylor is partially outlined in Commonwealth v. Flamer , 53 A.3d 87 (Pa.Super. 2012).J-A21008- 14

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opening statement and was not in reference to the kill ing 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 overw helmingly [shows] that Nafeas[t] and Marvin conspired to kill Abd ul, and he was killed; Executed.” N.T., 7/17/12, at 26. In addition, the C ommonwealth notes that the jury did not hear any evidence implicating Appell ant in the death of Mr. Taylor, and the jury was properly instructed that counse l’s arguments are not evidence. Statements made by a prosecutor during his opening or closing argument are “reversible error only if the prosecu tor deliberately attempts to destroy the objectivity of the jury and the unavoidab le effect of the remark is to create such a bias and hostility toward the defenda nt 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 opine d, “The purpose of an opening statement is to apprise the j ury how the case will develop, its background and what will be attempted to b e 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 b e 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 w ell as the defense, is afforded reasonable latitude in presenting opening arguments to the jury. Commonwealth v. Jones , 530 Pa. 591,J-A21008- 14

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607, 610 A.2d 931, 938 (1992). Such latitude is not w ithout limits. “A prosecutor's statements must be based on evidence that he plans to introduce at trial, and must not inclu de 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 believe s will be established at trial. Id

. Commonwealth v. Parker , 919 A.2d 943, 950 (Pa. 2007). Appellant’s claim fails for multiple reasons. First, h e waived the issue by failing to object. Further, the prosecutor did no t indicate that Appellant was involved in the death of Mr. Taylor, and the jur y was properly instructed that counsel’s arguments are not evidence. For all the se 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 base d on the prosecutor’s opening argument relative to Mr. Taylor’s death. Se tting aside that Appellant offers no citation in support of the merits of his position and includes only one boilerplate citation, this issue fails f or 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 w ere made to police more than two years after he was shot, “it does no t seem likely thatJ-A21008- 14

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he experienced a sense of urgency that his life was immi nently slipping away when he gave his statement to homicide detectives.” Appe llant’s brief at 17. The Commonwealth replies that the “admissibility of a d ying declaration turns on the declarant’s state of mind when he made the statements, not on how long the miracles of medical scie nce enable him to survive for a longer period against all odds.” Commonw ealth’s brief at 11. It maintains that, at the time the victim made his s tatements, 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 introduct ion of a dying declaration as an exception to the hearsay rule. A t the time of Appellant’s trial, the rule permitted “[a] statement made by a de clarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impend ing death.” Former Pa.R.E. 804(b)(2) (rescinded and replaced effect ive March 18, 2013). This rule is derived from longstanding Pennsyl vania law. In Kilpatrick v. Commonwealth , 31 Pa. 198 (1858), the High Court declared that dying declarations were inadmissible “unless at the t ime the declarant made them he was in actual danger of death; unless he believed death was impending, not distant; and unless death actually ensue d.” Id . at 215. There the victim died nine days after his statement. T he Kilpatrick CourtJ-A21008- 14

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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 mod e, that they were made under that sanction; whether it be directly proved, by the express language of the declarant, or be inferr ed from his evident danger, or the opinions of the medical or oth er 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 min d. Id

. More recently, this Court has explained, “A statement i s a dying declaration and, therefore, admissible hearsay if the declarant believes he or she is going to die (which can be inferred from the surr ounding circumstances), death is imminent, and d eath 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, af ter 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 fo r his mother, and telling her that he was not afraid, asked to speak wit h detectives. The victim’s mother contacted police on January 31, 200 8, and said that her son might not make it much longer and wished to tell pol ice who shot him. Thereafter, on February 4, 2008, the victim identifi ed Appellant as one of his attackers. He reiterated his identification on Februa ry 6, 2008, and in a videotaped interview on February 14, 2008. The off icer who taped the interview testified that it was “the first time that I ever videotaped anything,J-A21008- 14

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and it was just due to Allen’s condition.” N.T., 7/19/1 2, at 42. He added, “I believed the man was going to d ie 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 precl ude the admissibility of the statement where the individual believed death wa s 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 o f this case establish that he believed that his death was imminent. Accordi ngly, we find no error by the trial court. Appellant in his penultimate issue asserts that the tria l 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 ar gument, Appellant points out that the victim’s statement to police indicat ed that Appellant and Nafeast Flamer wanted to kill him because they believe d the victim was seeking revenge for th eir killing of the victim’s friend, Mr. Dickerson. Appellant notes that there was no proof that he was i nvolved in the death of Mr. Dickerson, and he was not charged for that crime. A ccording to Appellant, the court’s failure to redact the victim’s r efer ence to this homicide

was error.J-A21008- 14

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The Commonwealth responds that Appellant’s claim is waiv ed because he did not seek a redaction prior to trial and did no t 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 o ther bad acts is admissible for various purposes. It contends that eviden ce 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 pre vent 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 suffi ciency and the weight of the evidence. We have previously addressed A ppellant’s sufficiency argument and now reach his weight of the ev idence 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 co nviction that the verdict was or was not against the weight of the eviden ce[.]” Id

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A court should not grant a new trial due to “a mere con flict in the testimony[.]” Id . Instead, the court must examine whether “‘notwithstanding all the facts, certain facts are so clea rly of greater weight that to ignore them or to give them equal weight wi th 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 af forded a new trial. Id

. In the present case, there are not certain facts that cl early outweigh those in support of Appellant’s guilt. Appellant wa s identified by his victim as one of the shooters on multiple occasions while he be lieved 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. Th erefore, he submits that he could not be sentenced to a mandatory term of life imprisonment. The Commonwealth does not dispute Appellant’s claim. Accordin gly, 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.J-A21008- 14

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Judgment of sentence vacated. Case remanded for re-sen tencing. Commonwealth’s mo tion for post-submission communication filed July 29, 2014 is granted. Jurisdiction relinquished.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2014