Commonwealth v. Cash
| Decision Date | 25 May 2016 |
| Docket Number | No. 700 CAP,700 CAP |
| Citation | 137 A.3d 1262 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Omar Sharif CASH, Appellant. |
| Court | Pennsylvania Supreme Court |
Mr. Omar Shariff Cash, Lee Mandell, Esq., David Scott Rudenstein, Esq., for Omar Shariff Cash.
Hugh J. Burns, Jeffrey Michael Krulik, Esq., Philadelphia District Attorney's Office, Amy Zapp, Esq., Pennsylvania Office of Attorney General, for Commonwealth of Pennsylvania.
OPINION
.
In this direct capital appeal, Appellant Omar Sharif Cash challenges the November 15, 2013 judgment of sentence of death imposed by the Court of Common Pleas of Philadelphia County after a jury convicted him of first-degree murder and possession of an instrument of crime (“PIC”). For the reasons that follow, we affirm.
On April 21, 2008, at approximately 3:30 p.m., Appellant shot and killed Muliek Brown at the Winning Edge Carwash, located on Frankford Avenue in Philadelphia. The shooting was caught on the carwash's surveillance video, which showed Brown cleaning the tire rims of his car and Appellant approaching him from behind and shooting him in the back of the head. Following the shooting, Appellant fled the scene, and Robert Green, a carwash employee who watched the shooting take place on a monitor inside the carwash's office, called 911. Shortly thereafter, Philadelphia Police Officer Richard Hayes arrived at the scene and observed Brown lying face down with his knees on the ground, a bullet hole in his head, and two spent cartridge casings on the ground next to his body, which ballistics evidence later confirmed were fired from the same gun. Brown was transported to Temple University Hospital, where he was pronounced dead the following day. An autopsy later confirmed that Brown died as a result of a single gunshot wound
to the head.
As Officer Hayes was securing the scene, his partner, Officer Pross, was approached by Marcus Howard, who indicated that he saw a light-complexioned male with a “Muslim beard” and wearing a black hoodie and Capri shorts—consistent with Appellant's appearance—flee the scene. N.T., 11/04/13, at 42. Officer Pross placed the description over police radio, and Howard later provided a written statement confirming the description. Green also provided a written statement to the officers, as well as the carwash surveillance footage of the shooting.
Meanwhile, shortly after the shooting, off-duty Police Officer James Kuzowsky was driving near the scene when he observed a woman crying in the carwash's parking lot. As Officer Kuzowsky approached the woman, he spotted Appellant running from the carwash. Sensing that something was amiss, Officer Kuzowsky made a U-turn and began following Appellant to the 2000 block of Buckius Street, where Appellant stopped outside of a home to speak with two individuals. Officer Kuzowsky turned on his hazard lights to make it appear as though he was waiting for someone, but Appellant noticed him, made eye contact, and pulled a black gun out of his sleeve. At that point, Officer Kuzowsky sped past Appellant, made a right onto Coral Street, and drove toward Valetta Street, at which time he stopped and exited his vehicle. Continuing to monitor Appellant's movement, Officer Kuzowsky watched Appellant climb into a gray Nissan pickup truck at the intersection of Coral and Buckius Streets, and proceed northbound on Coral Street. Officer Kuzowsky then returned to his vehicle and began following the truck at a high rate of speed for approximately two to three minutes until he decided to end the pursuit for safety reasons.
Over the course of the next few days, Officers Kuzowsky, Green, and Howard each identified Appellant from a photographic array, and, on April 24, 2008, the police obtained a warrant for his arrest. Although the police initially were unable to locate Appellant, they ultimately secured his arrest on May 13, 2008 in New York City. Appellant was extradited to Philadelphia on August 4, 2008, where he was subsequently charged with first-degree murder and PIC.
The case proceeded to a jury trial before the Honorable Sandy L.V. Byrd on November 4, 2013, during which the Commonwealth presented, inter alia, the surveillance video footage of the murder, which showed Appellant walking back and forth next to the carwash, and, minutes later, entering the carwash and shooting Brown from behind; eyewitness testimony from Officers Kuzowsky, Green, and Howard identifying Appellant as the perpetrator; testimony from several of the investigating police officers; and testimony from Assistant Medical Examiner Dr. Edwin Lieberman,1 who performed the autopsy on Brown and opined that gunpowder found on the wound
indicated the gun's muzzle was fired within inches of Brown's scalp and skull, and that the bullet entered Brown's skull and pierced his pituitary gland. N.T., 11/5/13, at 88.
Appellant testified in his own defense, claiming that he had been pursued by Brown and his compatriots in the days leading up to the incident, and that, as a result, he shot Brown out of passion and fear for his life. Specifically, he described that, on the night of Friday, April 18, 2008, he was conversing outside of a bar with the family of his acquaintance “Weewee,” who indicated that a “guy with a beard” recently had stolen a gun from one of them. N.T., 11/6/13, at 66–68. Appellant detailed that, the next day, he was at the bar shooting pool with Brown, Weewee, Bobby Harris, and a man named TJ, when the men began asking whether anyone had heard about someone taking the gun or had seen anyone trying to sell a gun. Appellant testified that he informed the group that he knew who had the gun, but that the man “wasn't going to just give it back to them.” Id. at 71. He then recounted that he told the group that the man wanted $400 for the gun, but emphasized that “[he] wasn't just going to send them around there to him because [he] would have to worry about it coming back here to [him] trying to do something to me for doing something to him.” Id. at 72. Appellant explained that, at that point, the men thought that he was trying to cover for the man who stole the gun, which caused the conversation to escalate, and ultimately resulted in security asking the men to leave. Appellant testified that, as they were leaving, the men told him which Appellant viewed as an indication that they were “probably going to try to do something to me.” Id.
According to Appellant, early in the morning of April 21, he was walking to a friend's house when Weewee appeared across the street and fired shots at him, grazing his neck. Appellant stated that TJ and Brown—whom he described as carrying an AR–15 firearm—were also pursuing him, but he was able to run away. Appellant noted that he had additional encounters with the men twice more that day, leaving him “scared,” “upset,” and with “no regard for anything at that point.” Id. at 88–89. Appellant then described that, approximately 15 to 30 minutes after his last encounter with Brown, he was walking past the carwash when he noticed Brown's car parked inside. Appellant related that, at that point, he “was so enraged and scrambled that ... [his] passions [were] inflamed” and he believed that “either [he] was going to get killed or [he] would have to kill one of them,” or “this ain't going to stop,” ultimately causing him to “snap” and shoot Brown inside the carwash. Id. at 92–93.
Appellant's counsel sought a voluntary manslaughter charge, which the trial court denied. The jury later convicted Appellant of both crimes, and the trial proceeded to the penalty phase, during which the Commonwealth offered evidence regarding Appellant's prior murder, kidnapping, robbery, and rape convictions stemming from a 2008 incident, and Appellant offered evidence that he suffered from anti-social personality disorder and a troubled upbringing. At the conclusion of the penalty hearing, the jury found one aggravating factor—that Appellant had a significant history of violent felony convictions2 —as well as several circumstances satisfying the “catchall” mitigating factor concerning Appellant's character and record.3 Ultimately, the jury concluded the aggravating factor outweighed the mitigating factor, and it returned a sentence of death, which the trial court imposed on November 15, 2013. Thereafter, Appellant filed a post-sentence motion challenging, inter alia, the weight of the evidence supporting the jury's verdict. The trial court denied the motion, and Appellant filed the instant direct appeal, raising nine issues. We address them seriatim.
Appellant first argues the evidence was insufficient to sustain his first-degree murder conviction because the Commonwealth failed to prove that he acted with malice when he killed Brown.4 Specifically, Appellant contends that, rather than acting with malice, he acted out of fear that he would be killed by Brown and his cohorts, claiming that he had been shot at and “terrorized” by the men shortly before the incident, which prompted him to take “preemptive action.” Appellant's Brief at 16.
By contrast, the Commonwealth maintains that the evidence was indeed sufficient to sustain Appellant's first-degree murder conviction because Appellant snuck up behind Brown and shot him in the back of the head, a shooting to a vital part of the body from which malice may be inferred. The Commonwealth highlights that the murder was captured on a surveillance video and showed Appellant's face; that Appellant was identified as the perpetrator by three different individuals; and that Appellant fled the city and state after committing the crime, evidencing his consciousness of guilt. Additionally, the Commonwealth asserts that the jury was entitled to discredit Appellant's account of the events leading to the murder and that,...
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