Commonwealth v. Kelly

• Decision Date: 15 October 2013
• Citation: 2013 PA Super 276,78 A.3d 1136
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jahmel KELLY, Appellant.
• Court: Pennsylvania Superior Court

78 A.3d 1136

2013 PA Super 276

COMMONWEALTH of Pennsylvania, Appellee

v.Jahmel KELLY, Appellant.

Superior Court of Pennsylvania.

Submitted June 4, 2013.

Filed Oct. 15, 2013.

John P. Cotter, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney and Alison J. Guest, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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

OPINION BY BOWES, J.:

Jahmel Kelly appeals from the aggregate judgment of sentence of eighteen to thirty-seven years incarceration imposed by the trial court following his convictions for attempted murder, aggravated assault, criminal conspiracy, carrying a firearm without a license, and person not to possess a firearm. We affirm in part, but vacate Appellant's concurrent sentence for conspiracy.¹

The facts supporting Appellant's convictions are as follows. At approximately 9:30 p.m. on June 13, 2008, Appellant and Philip Hummel approached the sixteen-year-old victim and his girlfriend while they were sitting on the steps of the victim's house. Appellant opened fire as the victim pushed his girlfriend inside the home. The victim indicated that he knew Appellant from playing football with Appellant's younger brother and that he spent upwards of four days a week at Appellant's house playing the Madden football video game with Appellant's brother. The victim, who was a running back for his high school football team, suffered multiple bullet wounds that ended his ability to play football. In addition, due to the shooting, the victim and his family were relocated to another state based on safety concerns.

The victim did not identify Appellant as the shooter at Appellant's preliminary hearing, but at trial steadfastly maintained that Appellant and Hummel were his attackers. Both Appellant and Hummel disappeared prior to their trials. A jury initially convicted Appellant in absentia of attempted murder, aggravated assault, a general conspiracy verdict, and carrying an unlicensed firearm. Following its verdict on those charges, it then reached a guilty verdict as to the person not to possess a firearm count. Thereafter, on October 18, 2010, the trial court sentenced Appellant in absentia to ten to twenty years for attempted murder, three to seven years consecutive for carrying a firearm without a license, and a consecutive term of five to ten years for person not to possess a firearm. The court also imposed a concurrent ten-to-twenty-year sentence for the conspiracy charge.² Appellant did not timely appeal. The public defender's office, however, timely filed a PCRA petition on January 14, 2011. The court appointed counsel, who submitted an amended petition seeking the reinstatement of Appellant's direct appeal rights. The PCRA court granted the petition on November 1, 2011, and Appellant filed his notice of appeal on November 9, 2011. The 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 court authoredits Pa.R.A.P. 1925(a) decision. The matter is now ready for our review. Appellant presents two issues for our consideration.

I. Did the trial court err in trying the [A]ppellant in absentia?

II. Was the evidence sufficient to convict the [A]ppellant of attempted murder, aggravated assault, conspiracy, and violations of [the] uniform firearms act?

Appellant's brief at 2.³

As a successful sufficiency of the evidence claim precludes a re-trial and results in discharge as to the crime in question, we address Appellant's sufficiency challenges at the outset. Commonwealth v. Brown, 52 A.3d 320, 324 (Pa.Super.2012). In analyzing such claims, “we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt.” Id. at 323. Critically important, we must draw all reasonable inferences from the evidence in favor of the Commonwealth as the verdict winner. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super.2013). “Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.” Brown, supra at 323. Of course, “the evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented.” Id.

The Commonwealth can meet its burden “by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.” Id. It is improper for this Court “to re-weigh the evidence and substitute our judgment for that of the fact-finder.” Id. Additionally, “the entire record must be evaluated and all evidence actually received must be considered.” Id.

Appellant argues that the sole evidence against him was the testimony of the victim, “who initially told the police that he did not know who committed the crimes,” and testified at the preliminary hearing that he was unsure whether Appellant shot him. Appellant's brief at 9–10. He summarily argues that “the testimony of the complainant when viewed with all the rest of the evidence introduced is not believable and the verdict of guilt is based on suspicion only[.]” Id. at 10. Since Appellant's entire limited argument revolves around a credibility determination, which this Court does not make, his claim necessarily fails.

Having determined that the sufficiency argument Appellant advances is unavailing, we address his trial in absentia position. Appellant begins by asserting that he has a state and federal constitutional right to be present at his trial. He continues that Pa.R.Crim.P. 602 requires a defendant to be present at every stage of the trial. At the time of Appellant's trial, that rule provided:

(A) The defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceedingwith the trial, including the return of the verdict and the imposition of sentence.

Pa.R.Crim.P. 602(A) (effective January 1, 2001 until June 1, 2013). ⁴

Appellant maintains that the Commonwealth did not establish that he was absent without cause. Rather, he contends that the evidence introduced at the hearing to determine whether the trial should be held in his absence established that he was unaware of his trial date. Appellant relies on Commonwealth v. Hill, 737 A.2d 255 (Pa.Super.1999), and Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992), in support of his position.

In Hill, police first arrested the defendant for a drug offense on June 22, 1995. Thereafter, he was released on bail and signed a subpoena directing him to appear for trial on February 19, 1997. Police arrested the defendant a second time for another drug offense, and on January 6, 1997, the court authorized his release on bail subject to house arrest. The defendant on January 17, 1997, signed an additional subpoena ordering him to appear for trial on February 19, 1997. The defendant failed to appear on that date and the court granted two continuances. However, when the defendant failed to appear, two different juries tried and convicted him for the separate drug offenses. The defendant also did not appear for his sentencing and the court sentenced him in absentia.

On appeal, this Court upheld his trial and sentencing despite his absence. We found that the defendant “was fully aware of the charges against him and of his original trial date.” Hill, supra at 259. The panel noted that the defendant not only signed two subpoenas, but failed to appear after his case was continued and never offered an explanation for his absence. Further, it opined that the Commonwealth could not locate the defendant despite searching local hospitals, custodial facilities, the defendant's last known address, the morgue, and Philadelphia probation.

In Sullens, the Pennsylvania Supreme Court reversed a decision of this Court, granting the defendant a new trial after he was tried in his absence. The defendant therein had been in custody when his brother was killed in a car accident. The court allowed him to attend the funeral, but he failed to return to custody. The Commonwealth charged the defendant with escape. After his capture, at his arraignment for the escape charge, he waived his right to a jury trial and was informed of his trial date. The defendant did not appear on the scheduled trial date. The court issued a bench warrant and tried him in his absence. Subsequently, prior to his sentencing, police arrested Appellant. During his sentencing, the defendant admitted he knew the trial date and did not appear because he did not wish to be found guilty.

In finding that the trial court did not err in trying the matter without the presence of the defendant, the Sullens Court reasoned that the trial “judge's recollection and defense counsel's statements provided an adequate basis for the court to make a factual finding that appellee had notice of his trial date. The only uncertainty was due to the fact that defense counsel could not find a copy of his letter to appellee conveying the information.” Sullens, supra at 1352. It continued that the defendant's own admission at sentencing conclusively established that he had notice of his trial date.

Appellant submits that he was not provided court notice of a pre-trial conference or a subpoena for trial. He notes that he appeared at the preliminary hearing and argues that, because the victim did not identify him, he “had reason to believe that the charges against him were dismissed...