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 Judgmen t 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 t he judgment of sentence entered on March 11, 2011. We affirm. A jury convicted appellant of three counts of attempted murder, 1 three counts of aggravated assault, 2 two violations of the Uniform Firearms Act, 3 and possession of an instrument of crime. 4 T he 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

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to this matter on appellant’s Pos t - Conviction Relief Act 5 review 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 t he 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, a bly 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

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Judgment Entered.

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

this subsequent nunc pr

o 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 en tered the vehicle. Michelle Greene sat street. Greene noticed two unknown males standing direc tly 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 . exi ted the h ouse first, and entered the On January 14 , 2010 , at approximately 5 : 30pm, Michael Greene, Sr . and his family were FACI1JALBACKGROUND s tated 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 DIS T RICT OF PENNSYL 

# vANIA . . . . . · '. 

# 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 . mal e, " 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 3 7 -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 vio l ation. 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 materiali ty 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 evide n ce been disclosed , the resu l t 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 pre j udice, the evidence was material, in that its omission resulted in prejudice to the defendant. Com m onwealth v. willfully or inadvertently; (2) the evidence was favorable to the d e fendant ; and (3) the · evidence e defendant must demonstrate that: (1) the evidence was suppressed by the Commo n wealth. either Brady violation , which-as explained be l ow-has no merit. To establish a Brady vio l ation. a Here, Defendant's prosecutorial misconduct claim appears to most-c l ose l y re l ate 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 wh e ther 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 befo re or the day of trial [ . . . ] . " 1925 Defendant argues that the prosecution engaged in "pervasive and persistent misco n duct 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 initi al discovery . counsel before trial commenced : Here, there i s 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 7 5-48 report was ever c reated for Tiera Bond or the other

femal e. Thus , there w as no 7 5-48 report o r any other police paperwork that c ou l d be produced as i t never exi s te d . Be caus e all di sc overy was pas s ed prio r to trial andDefendant cannot identify any evid e nce that was s uppres s ed by the Commonwe alth , there i s no 

### Brad y vi o l ation . Moreover, all di sc ov ery was turn e d o ver in a timely fashion to Defendant and as it was rece i ved by the C ommonwealth-with the exceptio n of Bond ' s statement. Although Bond ' s statement was turned o v er- o n the 

### day that trial commenced , i t was passed prior to the actual commencement of trial. Defendant ' s failure to request 

### a c ontinuance to investigate Bond and her statement cannot form the basis fo r a c laim for prosecutorial mi sconduct, particularly when the C ommonwealth indicated that i t would have agreed to a continuance. N . T . 01/05 /2011 at 6. As s u ch, Defend an t 's pro s ecuto ri al misconduct claim is without merit. 2 . The Trial Court Properly Excluded Defe n dant's Pro p osed Hears ay Evide n ce Defendant argues that the trial court improperly precluded evidence from two sources that the perpetrator o f the shootin g was a "dark

- skinned Afric an -American mal e. " "T h e admission o r e x clusion of eviden c e is within the sound discretion of the trial court, and in re v iewing a chall e n ge to the admis s i bility of evidence , [the appellate court] wi ll only reverse a ruling b y the tri al co urt upon a s h o wing that i t abused its disc retion or committed an error of law . " 8.1 (. 

### v . JK. , 8 2 3 A.2d 987, 991-92 (Pa . Super . Ct. 2003 ). "An abuse of discretion is no t m ere l y an error o f j u d gm e n t, bu t the misappli c ati o n o r overridin g o f the 1 aw or the exercise of a manifestly unre aso n able judgment based upon partiality , prejudi c e or ill will. " 

### Commonwealth v . Charles ton, 1 6 A. 3 d 5 05, 526 (P a. Super . C t. 2011) . Hearsay is an o u t-of-court statem e nt off ered to prove the truth o f the matter asserted in 

### the statement. Co mmonwealth v . 

### Kude r , 62 A.3d 

### 1038 

### (Pa . 2013) . Hearsay 

### i s generally -5--6-

li ght -skinned . th e matter ass erted, i. e ., that the perpetrator w as a dark

- skinned Afri c an - American male, not only purpos e for w hi c h Defendan t argued th e statem e nts should be admitted was for the truth of shooter was dark skinned . See N . T . 01/04/201 1 at 153-157; N . T . 01/05 /2011 at 4-7 . As such , the b ec ause i t w o uld pro ve that Defendant (who is light skinned ) w as no t the shooter because the c ounse l argued that i t was necessary t o admit these statements about skin color and complexion s tatemen ts to poli c e durin g th e p o li c e investigation immediatel y following the shootin g. Defense Afri c an-Ameri c an mal e- were uttered by T i era Bond and Michael Greene · , Jr . in out-of-c o urt The evidence i s classic hearsay . The statementand words at i ssue=-dark

- skinned 13 , N.T . 0 1/04/2011 at 1 18

- 22 , 1 40-42 . Grace and Officer Lall y to testify regarding the contents of the statement relating to the des c ription of the perpetrator, i.e ., a dark

- skinned African

- American maJe . N . T . 01/06/2011 at 3- · made the s tatements to testify at trial , Defendant wanted to call Detective Mayer, Detective the s hooting was a "dark-skinned African-Ameri c an male . " Instead of calling the declarant s who Here, Defen d an t wanted to introduce two statements by declarant s that the perpetrator of 

### I d . o ther than p roving the truth o f its contents, 

### it is not hearsay and not barred by the hearsay rules . e xcep ti on to the g eneral hearsay rule . Id. O f c o ur s e, where a statement i s off ered for a purpose c l as s es of hearsay th at are substanti ally more trustworthy than hearsay in g eneral, and thus merit I d . N evertheles s, cert ai n hearsay e x ception s apply in Pennsylvania to ac commodate certain unreliability becaus e th e declarant c annot be chaJlenged regarding the ac c uracy of the statement. 

## ! sys tem of

jurisprudenc e . Id

. The rul e a g ainst admitting hearsay stems fr om its preswned 

# ' I , inadmi ss ib l e b ec ause thi s ev i den ce lacks guarantee s o f trustworthine s s fundam ental to our, 2 The enumerated excep tio ns are former testimony , statements under belief o f imminent death, statements against

interes t, s tatements of perso nal or fami ly histo ry, and statements offered a g ainst a party th at wrongfull y c aused the d e c l aran t' s unav ailab ili ty. See Rule 804(b ) . 3 Ev en assuming the tri al c ourt ' s evidentiary ruling was improper, this aUeged erro r w o uld constitute harmless error giv en the overwhelmin g e vidence of Defendant' s guil t that i s s ummarized infra at 1-2 . See generally Co mm o nw ea lth v . Gre en, 7 6 A . 3d 575, 58 2 (Pa . 2013) (stating that harmless error exists if the reviewing court is convinc ed be y ond a reas o nable d o ubt from the record that : (1) the error did not pre judice the defendant or the prejudi c e was de minimis , ( 2 ) the erroneously admitted evidence was merely c umulati v e of other untainted eviden c e that was substantiall y similar to the erro neously admitted evidence, or (3) the properly admitted and uncontradicted evi dence of guilt was s o o verwhelming and the pre j udicial effect of the error was 

### so insignificant by comparison that the erro r could n ot have co ntribu ted to the guilty verdi c t.") . -7- mus t be vi e wed in c ontext. Id . Not e v ery inappropriate remark by a pro s ecutor constitutes So lomon, 25 A.3d at 3 83 . A pros ec utor's statements to the jury do not o c cur in a vacuum and by prosecutors focuse s on whether the defendant was deprived of a fai r trial, not a perfect trial. of discreti on standard . Lopez, 57 A.3d at 84 . Claims involving allegedly inapprop ri ate remarks prosecut o r during sentencing. Claims of prosecutorial misconduct are reviewed under an abuse Defendant argues that the trial court erred by allowing inapp r o~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 b y Bond and Greene regarding their descriptions of the perpetrator .' not even meet the criteria for being unav ailable under Rule 804. applied. As for Bond, there is no information as t o why she was no t present for trial, so she does I because he exercised hi s Fifth Amendment privilege , none of the exceptions under Rule 804 trial. n o ne o f tho se exceptions applied . 2 Thus , although Greene may have been unavai lable Alth o ugh Rule 8 0 4 doe s provide several hearsay exceptions when a declarant is unavailable at . Greene nor Bond testified at trial , their s tatements could not be admitted through Rule 803 . I. No exception to the hearsay rule ap p lies including exceptions under Rule 803, Rule 803 . 1 

# I and Rule 804 . Althou gh Rule 803.1 permits prior statements o f i dentification , Rule 80 3 .l{c) requires the declarant to te s tify at the trial and be subject to cross - examin ation. Since neitherN . 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. Treadwa y, 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 prosecu t or'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 Defendan t's alleged gang membership . 

### Id .; see 42 Pa.C . S. 

### § 9721 (when sentencing