J-A21001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

SIM AMIN MORTON, 

 Appellant No. 561 EDA 2013 

Appeal from the Judgment of Sentence October 2, 2012 

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002070-2012 

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

MEMORANDUM BY BOWES, J.: FILED AUGUST 28, 2014 

 Sim Amin Morton appeals from the judgment of sentence of thirteen to 

twenty-six years incarceration to be followed by four years of probation 

imposed by the trial court. A jury found him guilty of attempted murder, 

aggravated assault, firearms not to be carried without a license, carrying a 

firearm in public in Philadelphia, possession of an instrument of crime, and 

persons not to possess a firearm.1

 After careful review, we affirm. 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 The jury did not determine the person not to possess a firearm charge 

until after it returned its verdicts on the remaining charges. Following those 

guilty verdicts, the jury was instructed that Appellant had a disqualifying 

offense and was instructed on the elements of the relevant crime before 

finding Appellant guilty. The jury also acquitted Appellant of a charge of 

aggravated assault relative to the girlfriend of the victim herein. 
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 Shortly before midnight on September 28, 2011, police received a 

report of shots fired on the 1000 block of North Edgewood Street, 

Philadelphia. They ultimately recovered eight fired cartridge casings from a 

.40 caliber weapon. When police arrived on the scene, they observed that a 

window to a store had been shattered, and across the street a passengerside window to a vehicle had been shot out. A man, Evan Davis, approached 

police from the area of the vehicle and indicated that he had been shot. The 

victim was transported to the Hospital of University of Pennsylvania along 

with his girlfriend, Shynetta Benyard, who was uninjured. While police were 

transporting Mr. Davis to the hospital, he instructed Ms. Benyard to cease 

describing the shooter to police. Mr. Davis also, while at the hospital, 

initially described his assailant as a slim black male, between six feet and six 

feet two inches in height, who was wearing black pants with a red stripe 

down the legs and black and red shoes. Later when speaking with police, 

Mr. Davis refused to provide the race of the individual who shot him or to 

identify Appellant. 

Mr. Davis’ mother, Donna Kearns, was outside of her home on 

Edgewood Street at the time of the shooting. She indicated that earlier in 

the evening there had been an argument between Mr. Davis’ girlfriend and a 

prior girlfriend, while her son and his girlfriend were congregating with a 

group of other individuals. Appellant was involved in the dispute. After the 
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argument ended, Mr. Davis and Ms. Benyard went over to her vehicle when 

shots rang out.2

 

 Ms. Kearns indicated to police at approximately 2:00 a.m., two hours 

after the shooting, that Appellant had shot her son. She knew Appellant 

from the neighborhood and initialed the statement that she made to police 

around 2:45 a.m., wherein she stated that Appellant had come around the 

corner and started shooting. At trial, however, she claimed that she had 

been drinking excessively on the night of the incident, and testified that she 

could not identify Appellant as the shooter. The officer who interviewed the 

victim’s mother, however, remarked that she was not intoxicated when he 

spoke with her. 

The victim’s former girlfriend, Tyesha Hasty, who had been involved in 

the altercation with Ms. Benyard, also provided police with a statement 

shortly after the shooting. She identified Appellant as the shooter and 

explained that he had been arguing with the victim’s cousin, 

Michael Buckeholder, before the shooting. In addition, she informed police 

that Appellant and the victim had issues for a long period and that another 

of the victim’s cousins, Michael’s brother, had fired a shot at Appellant’s 

cousin, resulting in the victim’s aunt being attacked. During trial, Ms. Hasty 

____________________________________________ 

2

 Ms. Benyard was not the registered owner of the car, a 1995 Nissan 

Maxima, but was in possession of the vehicle. 
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testified that she did not actually see the shooting because she was inside 

her home. 

 Another woman, Latoya Jenkins, the girlfriend of Michael Buckeholder, 

identified Appellant as the shooter shortly after the incident, though she 

claimed at trial that she was too intoxicated to see who fired the shots. 

Appellant acknowledged at trial having words first with Ms. Jenkins and then 

her boyfriend before the shooting. However, he claimed that he was with 

his girlfriend at his apartment at the time of the shooting and waiting on 

another woman to stop at his home to purchase marijuana. 

 At trial, the Commonwealth also introduced taped conversations 

between Appellant and another woman, while he was incarcerated, in which 

he asked her to dispose of a pair of shoes and marijuana. These 

conversations also revealed Appellant attempting to secure alibi witnesses 

and that he wanted to contact the eyewitnesses. The jury returned the 

aforementioned guilty verdicts and the court sentenced Appellant. Appellant 

filed a timely post-sentence motion, which the court denied. This timely 

appeal ensued. 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 trial court authored its Rule 1925(a) opinion. 

The matter is now ready for our review. Appellant presents two issues on 

appeal. 

1. Is the evidence insufficient to prove that Appellant was the 

perpetrator of the crimes? 
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2. Did the trial court err in permitting the Commonwealth to ask 

the defendant questions regarding his arrest for selling

narcotics on the 100 block of N. Edgewood Street? 

Appellant’s brief at 7.

 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 favor of the 

Commonwealth. Id. When evidence exists to allow the fact-finder 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. 

 In the present case, the Commonwealth provided evidence from 

eyewitnesses to the shooting who identified Appellant as the shooter. 

Although these witnesses declined to identify Appellant at trial, their prior 

signed statements are sufficient to establish each element of attempted 
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murder and aggravated assault. The jury was free to reject the 

eyewitnesses’ trial testimony as incredible and accept their previous 

statements. To the extent Appellant fails to develop any argument on the 

remaining convictions as to which elements of the crime the Commonwealth 

failed to establish, his position is waived. Accordingly, Appellant’s initial

claim is without merit. 

Appellant’s second claim is that the trial court erred in allowing the 

Commonwealth to introduce evidence that Appellant was previously 

convicted of possession with intent to deliver (“PWID”) cocaine based on an 

incident that transpired on Edgewood Street. While we agree that the trial 

court erred in admitting this evidence, we conclude that the error was 

harmless. Prior crimen falsi convictions are admissible into evidence, 

however, PWID is not a crimen falsi crime. Further, evidence of prior bad 

acts may be admissible “to prove motive, opportunity, intent, preparation, 

plan, knowledge, identity, and absence of mistake or accident.” 

Commonwealth v. Brown, 52 A.3d 320, 325 (Pa.Super. 2012); Pa.R.E. 

404(b)(2). As we noted in Brown, “[t]his list is non-exclusive.” Brown, 

supra at 325. For example, evidence of a bad act may be admissible to 

impeach a witness’s credibility where the witness testifies that he does not 

have a criminal history, or where the defendant uses his prior history to 

intimidate or threaten a victim, or the bad act is part of the res 

gestae/natural history of the case. Id. at 326. Of course, the probative 
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value of the bad acts evidence must outweigh its prejudicial impact. Id.; 

Pa.R.E. 403. 

The Commonwealth argued at trial that because Appellant testified 

that he took care of his grandmother and other elderly people on the block 

in question, and admitted to selling marijuana, he opened the door to 

introduction of his PWID conviction. It added that since Appellant testified 

that he made money by planning parties, it should be permitted to impeach 

that testimony with evidence that he earned a living as a drug dealer. We 

disagree.3

 Indeed, none of the common law exceptions to the rule against 

bad acts or the list included in the relevant rule of evidence applies to this 

matter. Appellant’s reference to his familiarity with the area did not open 

the door to introduction of the commission of a crime in the same 

neighborhood, nor was Appellant’s testimony character evidence. Further, 

the PWID conviction does not establish motive, as the Commonwealth’s 

theory was related to a differing neighborhood dispute. 

Additionally, the PWID conviction could not establish identity, intent, 

preparation, plan, knowledge or absence of mistake where the defendant 

was charged with a wholly unrelated shooting incident unrelated to a drug 

crime. In this respect as well, the res gestae exception has no applicability. 

____________________________________________ 

3

 We note that the Commonwealth failed to timely file a brief in this matter. 

We do not consider its patently untimely brief. Accordingly, the 

Commonwealth has not provided a single case that is remotely analogous 

which would authorize the introduction of the evidence in question. 
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There also was no suggestion that Appellant used his PWID conviction to 

intimidate or threaten the victim. The introduction of Appellant’s previous 

conviction was unnecessary and the Commonwealth’s untenable argument 

below is not persuasive. Nonetheless, we hold for the following reasons that 

the error was harmless. 

Our Supreme Court explained in Commonwealth v. Allshouse, 36 

A.3d 163, 182 (Pa. 2012), that a court is permitted to affirm a judgment 

based on harmless error even if the parties do not raise that argument. Id. 

Harmless error exists if there is no reasonable possibility that the error could 

have contributed to the verdict. Commonwealth v. Green, 76 A.3d 575, 

583 (Pa.Super. 2013). In this respect, an error is harmless if it 

did not prejudice the defendant or the prejudice was de minimis; 

or (2) the erroneously admitted evidence was merely cumulative 

of other untainted evidence which 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 so insignificant by comparison 

that the error could not have contributed to the verdict. 

Id. 

Appellant himself acknowledged as part of his testimony regarding an 

alibi that he sold marijuana. In addition, the jury was aware that Appellant 

sold marijuana because he was recorded while in jail telling a person to get 

rid of marijuana joints. Thus, the jury was already aware that Appellant sold 

drugs, although not cocaine. The Commonwealth also introduced evidence 

that Appellant, while incarcerated, solicited a person to dispose of a pair of 
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shoes that he owned which matched the description given by the victim. 

Although several eyewitness testified at trial that they were too intoxicated 

to identify Appellant, each witness, all of whom knew Appellant, had 

informed police shortly after the shooting that he was the culprit. Moreover, 

the reference to Appellant’s conviction was relatively brief in the context of a 

five-day trial. Accordingly, we find the prejudice resulting from the 

reference to Appellant’s PWID cocaine conviction was de minimis. 

Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/28/2014