J. S11005/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

IDRIS KINARD, : No. 120 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, March 11, 2011,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0002209-2010

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ. 

JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED MARCH 03, 2016

Idris Kinard appeals from the judgment of sentence entered on 

March 11, 2011. We affirm.

A jury convicted appellant of three counts of attempted murder,1three 

counts of aggravated assault,2two violations of the Uniform Firearms Act,3

and possession of an instrument of crime.4 The trial court sentenced 

appellant to a term of incarceration of 15 to 30 years.

The record reflects that the trial court retired from the bench. 

Subsequently, the Honorable Daniel J. Anders was administratively assigned 

 

1 18 Pa.C.S.A. § 901(a).

2 18 Pa.C.S.A. § 2702(a).

3 18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6108.

4 18 Pa.C.S.A. § 907(a).
J. S11005/16

- 2 -

to this matter on appellant’s Post-Conviction Relief Act5review and this 

subsequent nunc pro tunc direct appeal. Judge Anders authored the 

Pa.R.A.P. 1925(a) opinion. (Trial court opinion, 5/5/15 at 1 n.1.)

Appellant raises two issues for our review:

I. Whether the prosecution engaged in pervasive 

and persistent misconduct where all of the 

discovery was not turned over until the day 

before or the day of trial and where the 

prosecutor referenced facts not in evidence 

during sentencing that the Appellant was a 

member of a gang where there was no such 

evidence to support the allegation[?]

II. Whether it was error not to allow the jury 

access to relevant evidence that the 

perpetrator was a dark skinned African 

American male when the Appellant is a light 

skinned African American male where the 

description of the perpetrator appeared in two 

separate statements to detectives by two 

different individuals[?]

Appellant’s brief at 6.

Having determined, after careful review, that the learned 

Judge Anders, in his May 5, 2015 Rule 1925(a) opinion, ably and 

comprehensively disposes of appellant’s issues on appeal, with appropriate 

reference to the record and without legal error, we affirm on the basis of 

that opinion.

Judgment of sentence affirmed.

 

5 42 Pa.C.S.A. §§ 9541-9546.
J. S11005/16

- 3 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/3/2016
I Judge John O'Grady retired. Judge Daniel Anders was administratively assigned this matter on PCRA review and 

this subsequent nunc pro tune direct appeal. For purposes of this opinion. "trial court" refers to Judge O'Grady. 

behind her father on the driver's side of the second row of seats. A few minutes later, Michael 

later Greene's daughter Michelle exited the house and entered the vehicle. Michelle Greene sat 

street. Greene noticed two unknown males standing directly across the street. A few minutes 

front driver's seat of his Lincoln Navigator. Defendant Idris Kinard was standing across the 

exiting their house to go to Target. Michael Greene, Sr. exited the house first, and entered the 

On January 14, 2010, at approximately 5:30pm, Michael Greene, Sr. and his family were 

FACI1JALBACKGROUND 

stated below, the Superior Court should affirm the judgment of sentence. 

not in evidence about Defendant's alleged gang membership during sentencing.' For the reasons 

the defendant is a light skinned African American male," and (3) the prosecutor referenced facts 

Defendant argues that ( 1) the prosecution engaged in pervasive and persistent misconduct by not 

turning over all-of the discovery until.the day before or the day of trial, (2) th~ trial court erred by 

precluding two descriptions of the perpetrator as "a dark skinned AfricanAmerican male when 

trial court sentenced Defendant to a total of fifteen to thirty years of incarceration. On appeal, 

of the Uniform Firearms Act ("VUF A"), and possession of an instrument of crime ("PIC"). The 

convicted of three counts of attempted murder, three counts of aggravated assault, two violations 

Following a jury trial before the Honorable John O'Grady, Defendant Idris Kinard was 

OPJNION 

IDRIS KINARD 

IN THE COURT OF COMMON PLEAS OF PHD..ADELPHIA COUNTY FILE 

FIR.ST JUDICIAL DISTRICT OF PENNSYL v ANIA . . . . .· '. D . 

TRIAL DNISION - CRIMINAL 

MAY. 0 6 -Z0f5 

COMMONWEALTii OF PENNSYLVANIA CP-5t"-CR-0002209~2QJQ . :. 

. . i; Gnmrn~! APP.~als Unit 

vs. 120 EDA 2015 . ·FirstJua,c,al District of PA 

Circulated 02/16/2016 03:24 PM
-2- 

membership during sentencing. 

male," and (3) the prosecutor referenced facts notin evidence about Defendant's alleged gang 

dark skinned African American male when the defendant is a light skinned African American 

or the day of trial, (2) the trial court erred by precluding two descriptions of the perpetrator as "a 

pervasive and persistent misconduct by not turning over all of the discovery until the day before 

Defendant raises three claims of error on appeal: (1) that the prosecution engaged in 

DISCUSSION 

Defendant, including Defendant's identification. N. T; 01/05/2011 at' 32-42, 188-97. 

iPhone found at the scene of the shooting. Police recovered letters and papers addressed to 

semiautomatic handgun. Police also recovered an iPhone box with a serial number matching the 

Defendant's DNA from the trigger of the .22 revolver and the back strap handle of the .45 Colt 

matched the two .22 caliber bullets recovered from the scene of the shooting. Police recovered 

police recovered a .45 caliber Colt semiautomatic handgun and a .22 caliber revolver, which 

After executing search warrants for Defendant's home and his grandmother's home, 

01/04/2011 at 37-53, 61-68, 95, 101. 

, direction of Abbottsford Avenue. Defendant dropped his cell phone during his flight. N.T. 

; home. Inunediately after the shooting, Defendant fled the scene down a set of steps in the 

gunshots hit the intended victims or anyone else. Two of the gunshots struck a neighboring 

window. Michael Greene, Sr. and Michelle Green ducked to avoid the gunshots. None of the 

rear passenger tire, the passenger side of the vehicle, the rear window, and the driver's side 

I 

' Michael Greene, Jr. jwnped into the vehicle, Defendant continued to fire at the vehicle hitting the 

! Greene, Jr. exited the house. As Michael Greene, Jr. headed to the passenger side of the vehicle, 

Defendant opened fire on Michael Greene, Jr. and shot in Greene's direction numerous times. As 
-3- 

relevant inquiry is not whether the defendant would more likely than not have received a 

Lambert, 884 A.2d 848 (Pa. 2005) (citing Wood v. Bartholomew, 516 U.S. 1 (1995)). The 

Moreover, inadmissible evidence cannot be the basis for a Brady violation. Commonwealth v. 

constitutional sense." Id. (citing Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003)). 

defense, or might have affected the outcome of the trial does not establish materiality in the 

'The mere possibility that an item of undisclosed information might have helped the 

could have been different." Id. 

there is "a reasonable probability that, had the evidence been disclosed, the result of the trial 

suppressed must have been material to guilt or punishment. Id. at 7 4 7. Evidence is material when 

Antidormi, 84 A.3d 736, 747 (Pa. Super. Ct. 2014). To demonstrate prejudice, the evidence 

was material, in that its omission resulted in prejudice to the defendant. Commonwealth v. 

willfully or inadvertently; (2) the evidence was favorable to the defendant; and (3) the· evidence 

e defendant must demonstrate that: (1) the evidence was suppressed by the Commonwealth. either 

Brady violation, which-as explained below-has no merit. To establish a Brady violation. a 

Here, Defendant's prosecutorial misconduct claim appears to most-closely relate to 'a 

Super. Ct. 2011 ). 

deprived of a fair trial, not a perfect trial. Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. 

Consideration of claims of prosecutorial misconduct focuses on whether the defendant was 

discretion standard. Commonwealth v. Lopez, 51 A.3d 74, 84 (Pa. Super. Ct. 2012). 

Statement of Errors. Courts review claims ofprosecutorial misconduct under an abuse of 

where all of the discovery was not turned over until the day before or the day of trial[ ... ]." 1925 

Defendant argues that the prosecution engaged in "pervasive and persistent misconduct 

I 

'.I 

The Prosecutor Did Not Engage In Prosecutorial Misconduct Because 

He Timely Turned Over All Discovery Prior To Commencement Of Trial 

l. 

l ,, 
was the day of the shooting. Based upon its review of all police paperwork, the Commonwealth 

-4- 

report that was completed in the 39th police district in Philadelphia on January 14, 2010, which 

existed. Indeed, after Lally testified, the Commonwealth retrieved· and reviewed every 75-48 

report for Tiera Bond and another female, it was later determined that no such police paperwork 

Although there was testimony during the trial that Officer Lally prepared a 75-48 police 

Commonwealth. N.T. 01/04/2011 at 154; N.T. 01/05/2011 at 5. 

to Defendant as soon as that discovery was created or came into the possession of the 

the exception of Tiara Bond's statement to detectives, all of the discovery was timely turned over 

N.T. 01/04/2011 at 143-149, 152-157; N.T. 01/05/2011 at 4-16; N.T. 01/06/2011 at 56-58. With 

• On January 3, 2011, which was the day trial commenced, Defendant received Tiera 

Bond's statement to detectives. Toe Commonwealth provided her statement before 

Defendant was arraigned, i.e., before trial commenced. Defense counsel did not request a 

continuance to investigate Bond's statement or attempt to locate her. 

• On December 29, 2010, sent a letter identifying a picture of a phone that belonged to 

Tiera Bond and correcting defense counsel's misapprehension that this phone belonged to 

Defendant as discussed at a previous hearing. 

• On December 20, 2010, Defendant received additional discovery (including additional 

certified phone records) that was recently received by the Commonwealth. 

• On December 3, 2010, Defendant received additional discovery (including the DNA 

results, the DNA expert report, and some of the phone records) that was recently received 

by the Commonwealth. 

• On March 9, 2010, Defendant received initial discovery. 

counsel before trial commenced: 

Here, there is no dispute that the Commonwealth provided all discovery to defense 

the entire record. Id. (citing Commonwealth v. Dennis, 17 A.3d 297 (Pa. 201 I)). 

court is not to review the evidence in isolation, and must evaluate the omission in the context of 

as a trial resulting in a verdict worthy of confidence. Antidormi, 84 A.3d at 748. A reviewing 

different verdict with the evidence, but whether in its absence he received a fair trial, understood 
., represented to the trial court that no 75-48 report was ever created for Tiera Bond or the other 

female. Thus, there was no 75-48 report or any other police paperwork that could be produced as 

it never existed. 

Because all discovery was passed prior to trial andDefendant cannot identify any 

evidence that was suppressed by the Commonwealth, there is no Brady violation. Moreover, all 

discovery was turned over in a timely fashion to Defendant and as it was received by the 

Commonwealth-with the exception of Bond's statement. Although Bond's statement was turned 

over- on the day that trial commenced, it was passed prior to the actual commencement of trial. 

Defendant's failure to request a continuance to investigate Bond and her statement cannot form 

the basis for a claim for prosecutorial misconduct, particularly when the Commonwealth 

indicated that it would have agreed to a continuance. N.T. 01/05/2011 at 6. As such, Defendant's 

prosecutorial misconduct claim is without merit. 

2. The Trial Court Properly Excluded Defendant's Proposed Hearsay Evidence 

Defendant argues that the trial court improperly precluded evidence from two sources 

that the perpetrator of the shooting was a "dark-skinned African-American male." "The 

admission or exclusion of evidence is within the sound discretion of the trial court, and in 

reviewing a challenge to the admissibility of evidence, [the appellate court] will only reverse a 

ruling by the trial court upon a showing that it abused its discretion or committed an error of 

law." 8.1(. v. JK., 823 A.2d 987, 991-92 (Pa. Super. Ct. 2003). "An abuse of discretion is not 

merely an error of judgment, but the misapplication or overriding of the 1 aw or the exercise of a 

manifestly unreasonable judgment based upon partiality, prejudice or ill will." Commonwealth v. 

Charleston, 16 A.3d 505, 526 (Pa. Super. Ct. 2011). 

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in 

the statement. Commonwealth v. Kuder, 62 A.3d 1038 (Pa. 2013). Hearsay is generally 

-5- 
-6- 

light-skinned. 

the matter asserted, i.e., that the perpetrator was a dark-skinned African-American male, not 

only purpose for which Defendant argued the statements should be admitted was for the truth of 

shooter was dark skinned. See N.T. 01/04/2011 at 153-157; N.T. 01/05/2011 at 4-7. As such, the 

because it would prove that Defendant (who is light skinned) was not the shooter because the 

counsel argued that it was necessary to admit these statements about skin color and complexion 

statements to police during the police investigation immediately following the shooting. Defense 

African-American male-were uttered by Tiera Bond and Michael Greene·, Jr. in out-of-court 

The evidence is classic hearsay. The statementand words at issue=-dark-skinned 

13, N.T. 01/04/2011 at 118-22, 140-42. 

Grace and Officer Lally to testify regarding the contents of the statement relating to the 

description of the perpetrator, i.e., a dark-skinned African-American maJe. N.T. 01/06/2011 at 3- 

· made the statements to testify at trial, Defendant wanted to call Detective Mayer, Detective 

the shooting was a "dark-skinned African-American male." Instead of calling the declarants who 

Here, Defendant wanted to introduce two statements by declarants that the perpetrator of 

Id. 

other than proving the truth of its contents, it is not hearsay and not barred by the hearsay rules. 

exception to the general hearsay rule. Id. Of course, where a statement is offered for a purpose 

classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit 

Id. Nevertheless, certain hearsay exceptions apply in Pennsylvania to accommodate certain 

unreliability because the declarant cannot be chaJlenged regarding the accuracy of the statement. 

! system of jurisprudence. Id. The rule against admitting hearsay stems from its preswned 

' 

I 

, inadmissible because this evidence lacks guarantees of trustworthiness fundamental to our 
, 

2 The enumerated exceptions are former testimony, statements under belief of imminent death, statements against 

interest, statements of personal or family history, and statements offered against a party that wrongfully caused the 

declarant's unavailability. See Rule 804(b). 

3 Even assuming the trial court's evidentiary ruling was improper, this aUeged error would constitute harmless error 

given the overwhelming evidence of Defendant's guilt that is summarized infra at 1-2. See generally 

Commonwealth v. Green, 76 A.3d 575, 582 (Pa. 2013) (stating that harmless error exists if the reviewing court is 

convinced beyond a reasonable doubt from the record that: (1) the error did not prejudice the defendant or the 

prejudice was de minimis, (2) the erroneously admitted evidence was merely cumulative of other untainted evidence 

that was substantially similar to the erroneously admitted evidence, or (3) the properly admitted and uncontradicted 

evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that 

the error could not have contributed to the guilty verdict."). 

-7- 

must be viewed in context. Id. Not every inappropriate remark by a prosecutor constitutes 

Solomon, 25 A.3d at 383. A prosecutor's statements to the jury do not occur in a vacuum and 

by prosecutors focuses on whether the defendant was deprived of a fair trial, not a perfect trial. 

of discretion standard. Lopez, 57 A.3d at 84. Claims involving allegedly inappropriate remarks 

prosecutor during sentencing. Claims of prosecutorial misconduct are reviewed under an abuse 

Defendant argues that the trial court erred by allowing inappro~riate remarks by the 

3. The Trial Court Properly Denied Defendant's Objections 

Based On The Prosecutor's Comments At Sentencing 

I 

,; Thus, the trial court did not abuse its discretion and properly precluded the admission of 

., 

the hearsay statements by Bond and Greene regarding their descriptions of the perpetrator.' 

not even meet the criteria for being unavailable under Rule 804. 

applied. As for Bond, there is no information as to why she was not present for trial, so she does 

I because he exercised his Fifth Amendment privilege, none of the exceptions under Rule 804 

trial. none of those exceptions applied.2 Thus, although Greene may have been unavailable 

Although Rule 804 does provide several hearsay exceptions when a declarant is unavailable at 

. Greene nor Bond testified at trial, their statements could not be admitted through Rule 803. I. 

No exception to the hearsay rule applies including exceptions under Rule 803, Rule 803.1 I and Rule 804. Although Rule 803.1 permits prior statements of identification, Rule 803.l{c) 

requires the declarant to testify at the trial and be subject to cross-examination. Since neither 
N.T. 03/11/2011 at 27-29. Although he referenced the "community of30th·and Allegheny," this 

was an entirely appropriate consideration' under the sentencing code and was diicuss'ed without 

-8- 

alleged gang member when he explained the factors he considered in imposing the sentence. 

Third, the trial court did not rely on the prosecutor's argument that Defendant was an 

2014). 

appropriateness of the sentence. Commonwealth v. Treadway, 104 A.3d 597 (Pa. Super. Ct. 

sentences consecutively does not even raise a substantial question on direct-appeal as to the 

murder convictions, a challenge to the exercise of a sentencing judge'sdiscretion to impose 

Second, although the trial court imposed consecutive sentences for the three attempted 

imposed the lowest possible seritence available to him. 

sentence, but actually a sentence that departed below the fully mitigated range. The trial court 

months on each count of attempted murder. Thus, Defendant received not only a fully mitigated 

months of incarceration, the trial court sentenced Defendant to a minimum sentence of only 60 

' called for a minimum sentence of 78 months to 96 months of incarceration, plus or minus twelve 

the applicable sentencing guidelines for each conviction. So, although the sentencing guidelines 

cannot prove prejudice in his sentencing. First, Defendant received a downward departure from 

Even assuming arguendo that the prosecutor's statements were improper, Defendant 

the prosecutor's statements during the sentencing hearing. N.T. 03/11/2011 at 9-12. 

evidence regarding Defendant's alleged membership in a gang. Defendant repeatedly objected to 

Here, Defendant argues that during sentencing the prosecutor cited to several facts not in 

Rolan, 964 A.2d 398, 410 (Pa. Super. Ct. 2008). 

1j prosecutor's arguments are improper, they generally will not form the basis for a new trial unless 

I the comments unavoidably prejudiced the jury and prevented a true verdict. Commonwealth v. 

reversible error. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). Even if the 

~. 

l 
-9- 

DANIELJ. 

Dated: May 5, 2015 

Based on the foregoing, the judgment of sentence should be affirmed. 

CONCLUSION 

hearing. 

Thus, Defendant cannot prove that he suffered any prejudice during the sentencing 

needs of the defendant."). . 

as it relates to the impact on the life of the victim and on the community, and the rehabilitative 

call for confinement that is consistent with the protection of the public, the gravity of the offense 

a defendant, the trial court "shall follow the general principle that the sentence imposed should 

reference to Defendant's alleged gang membership. Id.; see 42 Pa.C.S. § 9721 (when sentencing