Commonwealth v. Akbar

• Decision Date: 30 April 2014
• Citation: 91 A.3d 227,2014 PA Super 89
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Hassan AKBAR, Appellant.

91 A.3d 227

2014 PA Super 89

COMMONWEALTH of Pennsylvania, Appellee

v.Hassan AKBAR, Appellant.

Superior Court of Pennsylvania.

Submitted July 22, 2013.

Filed April 30, 2014.

Raymond D. Roberts, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney and Joan Weiner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: GANTMAN, J., DONOHUE, J., and PLATT, J.^*

OPINION BY GANTMAN, J.:

Appellant, Hassan Akbar, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for aggravated assault, criminal conspiracy to commit aggravated assault, persons not to possess firearms, and possessing instruments of crime. ¹ We affirm Appellant's convictions but vacate the judgment of sentence and remand for resentencing.

The relevant facts and procedural history of this case are as follows. On November 13, 2008, Regina Holmes and Kemp Carter were on their way to Mr. Carter's house. As they approached Mr. Carter's residence, Ms. Holmes noticed a car parked in the street with two black males sitting inside. After Ms. Holmes and Mr. Carter parked their car, they walked toward Mr. Carter's house and noticed that the car parked on the street was gone. When they reached Mr. Carter's house, Appellant and Darnell Lewis came up behind them. Appellant directed Mr. Carter and Ms. Holmes to walk into the house, while Appellant and Mr. Lewis followed. Ms. Holmes and Mr. Carter turned to face the two men and saw they had guns in their hands. Appellant pointed his gun to the ground and fired two shots. Mr. Carter told Ms. Holmes to duck, pushed her into the screen door, and ran away. Mr. Lewis fired approximately six shots at Mr. Carter, shooting him in the stomach. Immediately, Appellant and Mr. Lewis fled the scene, and Ms. Holmes called 911. When police arrived, Ms. Holmes gave a description of the shooters.

Police later received information about a vehicle possibly linked to the shooting. The next day, police located the suspicious vehicle, conducted a traffic stop, and apprehended Mr. Lewis. In custody, Mr. Lewis made a statement to police, and admitted he had participated in the shooting. Mr. Lewis also implicated Appellant, explaining that Appellant knew Mr. Carter was a drug dealer and carried large sums of cash, so Appellant decided he and Mr. Lewis would rob Mr. Carter. Mr. Lewis also explained to police the details of the shooting and implicated Appellant. In the days after the shooting, Ms. Holmes and Mr. Carter identified Appellant and Mr. Lewis in photo arrays. Police obtained an arrest warrant for Appellant and assigned him a “photo number.” On December 2, 2008, police apprehended Appellant during a traffic stop.

Procedurally:

On December 2, 2008, [Appellant] was arrested and charged with aggravated assault, criminal conspiracy to commit aggravated assault, robbery, attempted burglary, attempted theft, possession of a firearm by a prohibited person, firearms not to be carried without a license, carrying firearms in public, possessing instruments of crime, terroristic threats, simple assault, and recklessly endangering another person.

On April 5–14, 2010, [the court] conducted a trial in the presence of a jury. [On April 7, 2010, defense counsel moved to sever Appellant's case from that of Mr. Lewis, his co-defendant; and the court denied the motion.] On April 14, 2010, the jury found [Appellant] guilty of aggravated assault, criminal conspiracy, possession of a firearm by a prohibited person and possessing instruments of crime. On July 12, 2010, [the trial court] sentenced [Appellant] to 10 to 20 years' state incarceration on the aggravated assault charge, 10 to 20 years' state incarceration on the conspiracy charge, and 5 to 10 years' on the possession of a firearm by a prohibited person, to run consecutively. [Appellant] was sentenced to no further penalty on the possessing instruments of crime charge. This resulted in an aggregate sentence of 25 to 50 years' state incarceration.

On July 22, 2010, defense counsel ... filed a Post–Sentence Motion, which was subsequently dismissed by operation of law on November 22, 2010. On December 15, 2010, defense counsel filed a Notice of Appeal to the Superior Court. On March 2, 2011, upon receipt of all notes of testimony, [the trial court] ordered that defense counsel file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). However, due to serious illness, counsel did not file a [Rule] 1925(b) statement until May 20, 2011, after an extension had been granted by [the trial court].

(Trial Court Opinion, filed December 6, 2012, at 2–3). Appellant subsequently obtained new counsel for appeal and sought permission to file a supplemental Rule 1925(b) statement. This Court granted Appellant's request on June 8, 2012, and remanded the matter to the trial court for the filing of Appellant's supplemental concise statement. On June 27, 2012, Appellant filed his supplemental Rule 1925(b) statement.

Appellant raises the following issues for our review:

THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST TO SEVER HIS TRIAL FROM HIS CO–DEFENDANT AND IN REFUSING TO GIVE THE REDACTION REQUESTED BY APPELLANT'S COUNSEL.

THE TRIAL COURT ERRED IN REFUSING TO GIVE A CAUTIONARY INSTRUCTION WHEN OFFICER O'MALLEY PLAYED THE 911 AND POLICE RADIO TAPES.

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A MISTRIAL WHEN THE COMMONWEALTH'S ATTORNEY AND THE TESTIFYING POLICE OFFICER PUT INTO EVIDENCE THAT APPELLANT HAD A PHILADELPHIA PHOTO NUMBER.

THE TRIAL COURT ERRONEOUSLY SENTENCED [APPELLANT] TO TWO MANDATORY MINIMUMS AT SENTENCING.

(Appellant's Brief at 7).

In his first issue, Appellant argues Mr. Lewis' confession to police shifted all of the blame surrounding the November 13, 2008 shooting to Appellant. Appellant acknowledges that the parties redacted Mr. Lewis' statement to remove any direct references to Appellant. Nevertheless, Appellant claims the redacted statement still prejudiced him because the statement included references to another man having a gun, firing a shot, and directing Mr. Lewis' actions. Appellant insists the jury naturally inferred Appellant was the other person described in Mr. Lewis' statement, because Mr. Lewis and Appellant sat side-by-side at trial as the only accused persons. Appellant maintains the other evidence against Appellant, in the absence of Mr. Lewis' statement, was insufficient to convict Appellant of the crimes charged. Appellant avers the court's admission of the redacted statement rises above harmless error, unduly prejudiced him and denied him a fair trial. Appellant concludes the court erred in denying his motion to server, and this Court should remand the case for a new trial separate from Mr. Lewis. We disagree.

“The decision to sever co-defendants' trials lies within the trial court's discretion, and will not be disturbed absent an abuse thereof.” Commonwealth v. Birdsong, 611 Pa. 203, 232, 24 A.3d 319, 336 (2011).

Joint trials are favored when judicial economy will be served by avoiding the expensive and time-consuming duplication of evidence, and where the defendants are charged with conspiracy.

[T]he mere fact that there is hostility between defendants, or that one may try to save himself at the expense of another, is in itself not sufficient grounds to require separate trials. In fact, it has been asserted that the fact that defendants have conflicting versions of what took place, or the extents to which they participated in it, is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together.

Id. (internal citations and quotation marks omitted) (emphasis in original).

“Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has a right to confront witnesses against him.” Commonwealth v. Rivera, 565 Pa. 289, 299, 773 A.2d 131, 137 (2001), cert. denied,535 U.S. 955, 122 S.Ct. 1360, 152 L.Ed.2d 355 (2002). A defendant is deprived of his Sixth Amendment rights when his non-testifying co-defendant's facially incriminating confession is introduced at their joint trial, even if the jury is instructed that the confession can be considered only against the confessing co-defendant. Id. Nevertheless, “[i]f a confession can be edited so that it retains its narrative integrity and yet in no way refers to [the non-confessing] defendant, then use of it does not violate the principles of Bruton [ v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ].” ²Commonwealth v. Travers, 564 Pa. 362, 368, 768 A.2d 845, 848 (2001).

In Travers, our Supreme Court held that the redaction of a nontestifying co-defendant's confession in a joint trial, which replaced any direct reference to the non-confessing co-defendant with a neutral pronoun, when accompanied by an appropriate cautionary charge, sufficiently protected the non-confessing defendant's Sixth Amendment rights.³Travers, supra at 372–73, 768 A.2d at 851. The Travers Court observed Pennsylvania law is now clear that redacted statements trigger confrontation clause concerns under Brutononly if the redacted statement on its face ties the defendant to the crime, but not if the incrimination arises from linkage to other evidence in the case. Id. at 372 n. 2, 768 A.2d at 850 n. 2 (citing Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998)). When the redacted statement is not powerfully incriminating on its face, however, the general rule that jurors can and will follow the court's cautionary jury instructions controls. Travers, supra. Moreover, even where a redacted confession violates Bruton, its admission might be harmless error if other properly admitted evidence overwhelmingly establishes the defendant's guilt. Commonwealth v. McGlone, 716 A.2d 1280, 1284 (Pa.Super.1998), cert. denied,528 U.S. 932, 120 S.Ct. 332, 145 L.Ed.2d 259 (1999).

Instantly,...