Com. v. Graham, K.

J-S06041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KAREEM GRAHAM :

:

Appellant : No. 3003 EDA 2017

Appeal from the Judgment of Sentence January 6, 2014

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0010090-2012,

CP-51-CR-0010091-2012

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: Filed: April 22, 2021

Kareem Graham (Graham) appeals from the judgment of sentence

imposed by the Court of Common Pleas of Philadelphia County (trial court)

after being convicted of aggravated assault, conspiracy and various firearms

offenses. On appeal, Graham challenges (1) the admission of other crimes

evidence under Pa.R.E. 404(b), and (2) the legality of his sentence. After

review, we reject Graham’s evidentiary challenge but agree that his sentence

is illegal based on subsequent case law.

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* Retired Senior Judge assigned to the Superior Court.

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I.

This case involves two shootings that happened hours apart in

Philadelphia on March 20, 2012. Under the Commonwealth’s version of

events, the shootings were part of an ongoing feud between two groups: “5th

Street South” and “5th Street North.” The Commonwealth believed that

Graham was associated with several “5th Street South” members that were

targeted in the first shooting. In the Commonwealth’s view, the first shooting

was committed by “5th Street North” members. As retaliation for the first

shooting, Graham committed the second shooting just a few hours later.

The first shooting happened around 3:30 p.m. At that time, several

members of the “5th Street South” group were standing outside a South

Philadelphia corner store at 5th and Pierce Streets, which, according to the

Commonwealth, was inside the group’s “territory.” The store’s surveillance

footage showed Graham walk out of a nearby house and enter the store

moments before the shooting. Graham stopped and briefly spoke with the

group members before walking away. After he leaves, someone walked up

and began firing at the group, striking three of the men standing outside:

Edwin Castro, Terrell Brown and Tyrone Gilliard. The three men survived but

were either unable or unwilling to identify the shooter. Though no charges

were ever filed, the police suspected “5th Street North” members of

committing the shooting.

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A few hours later, around 9:00 p.m., Graham went to a park less than

a mile from the first shooting but in “5th Street North” territory. At the time,

children were still playing in the park’s playground and basketball court. After

entering the park, Graham pulled out a handgun and began firing. Though

Graham’s target was not clear, two minors were struck by bullets: a 12-year-

old boy (Z.W.) and a 15-year-old girl. Both received medical treatment at a

local hospital but were not seriously injured.

After firing all the rounds in his gun, Graham ran to a waiting green

Buick sedan that sped away as soon as he got in. A nearby witness, however,

got a partial plate description and called 911. Based on the information, the

police set up surveillance of an address where the car had been seen.

Although the car was not there, the police saw two “5th Street South”

members walk up the street. The first, Andre Ware (Ware), was at the first

shooting but was unharmed. The second, Vincent Thornton (Thornton), was

not at the first shooting but went to the hospital to visit the victims; he was

also the registered owner of the green Buick sedan seen leaving the second

shooting.

As the two men walked up the street, Ware ducked into a backyard and

quickly reemerged, at which point the police arrested both him and Thornton.

The police checked the backyard and found a black .380 handgun with an

empty magazine. The police later matched the handgun to the fired cartridge

casings found at the shooting at the park.

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That same night, the police interviewed Z.W. but he could not identify

the shooter. Not long after, the police received information that Graham was

the shooter at the park. Based on this, the detectives compiled a photo array

that included Graham’s picture. The next day, the police showed the photo

array to Z.W. When shown the photo array, Z.W. identified Graham as the

shooter in the park.1 Graham was arrested two weeks later and had his DNA

taken for testing. Testing later matched Graham’s DNA - along with Ware and

a third unidentified male - to a DNA sample taken from inside the handle of

the .380 handgun that was matched to the second shooting.

The Commonwealth filed a pretrial motion in limine under Pa.R.E.

404(b) to admit evidence about the first shooting and Graham’s association

with “5th Street South” members, asserting that the evidence was necessary

to explain Graham’s motive for the second shooting. At the hearing on the

motion, the Commonwealth presented Officer James O’Neill, who was

assigned to a gang task force focused on South Philadelphia. He testified that

there has been continual shooting and arrests between “5th Street South” and

“5th Street North” since 2009, detailing several shootings that he claimed

were part of the ongoing feud between the groups.

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1 Z.W. also identified Graham as the shooter at the preliminary hearing. The

Commonwealth relied on these identifications at trial when Z.W. could neither

identify the shooter nor remember the prior identifications.

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Turning to Graham, Officer O’Neill testified that he knew him from the

“5th Street South” area and “from who his friends and associates are and who

he hangs out with.” These associates included several self-admitted “5th

Street South” members, including both Ware and Thornton, as well as one of

the victims of the first shooting, Terrell Brown. Officer O’Neill then testified

about the first shooting and the surveillance footage from the corner store.

Though the video was not shown, Officer O’Neill related that it showed Graham

walk into and exit the store just before the shooting. Over Graham’s

objection, Office O’Neill testified that a “5th Street North” member was

suspected of committing the shooting but was never charged. Office O’Neill

further stated that “intelligence suggested” that this suspect was the intended

target of the second shooting.

Besides Officer O’Neill’s testimony, the Commonwealth argued that the

proposed evidence would tie in with the recovery of the handgun used to

commit the shooting in the park. On this point, the Commonwealth

emphasized that the handgun was recovered after being discarded by Ware,

who was at the first shooting but unharmed. The Commonwealth also

highlighted that Thornton was with Ware when he discarded the handgun and

had been at the hospital earlier in the day to see the victims of the first

shooting.

Graham countered with two main points. First, though Graham

“associated” with self-admitted “5th Street South” members, there was no

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evidence that he had ever identified himself as being part of the group.

Second, the surveillance video merely showed that Graham spoke to the men

briefly before leaving the corner store, which is not necessarily proof that he

was a member of “5th Street South.”

The trial court granted the Commonwealth’s Rule 404(b) motion, finding

that the testimony was appropriate to show proof of motive or intent or a

common plan. As a result, in addition to presenting the identification and DNA

evidence described above at trial, the Commonwealth called Officer O’Neill as

a witness. During his testimony, the trial court sustained Graham’s objection

when Officer O’Neill testified that Graham was a “5th Street South” associate.

However, Graham did not object when Officer O’Neill testified that he had seen

Graham with several “5th Street South” members, including Ware and

Thornton.

At the end of trial, the jury found Graham guilty of two counts of

aggravated assault and one count each of conspiracy to commit aggravated

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

Philadelphia and possession of an instrument of crime. After the jury rendered

its verdict, the trial court found him guilty of persons not to possess firearms.

At the January 6, 2014 sentencing, the trial court imposed an aggregate

sentence of 21 to 42 years’ imprisonment followed by three years’ probation.

The court’s sentence was comprised of 5 to 10 year consecutive sentences

each for the aggravated assault convictions; a consecutive 5 to 10 years for

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conspiracy; a consecutive 2½ to 5 years for persons not to possess firearms;

and a consecutive 3½ to 7 years firearms not to be carried without a license.

Because of the victims’ ages, the sentences imposed for aggravated assault

and conspiracy were mandatory minimum sentences under the former version

of 42 Pa.C.S. § 9718.

Graham did not file a direct appeal. However, in January 2015, he filed

a post-conviction petition to request reinstatement of his direct appeal rights

nunc pro tunc, which the trial court later granted in August 2017. Graham

filed a timely notice of appeal and now raises two issues for our review.

1. Did the trial court err in granting he Commonwealth’s motion

to introduce evidence of other acts, crimes, or wrongs under Rule

404(b)?

2. Did the sentencing court err in sentencing [Graham] to

mandatory minimum sentences for aggravated assault and

criminal conspiracy?

Graham’s Brief at 3.

II.

In his first issue, Graham challenges the trial court’s decision to admit

other crimes evidence under Pennsylvania Rule of Evidence 404(b).2 Rule

404(b) provides in relevant part:

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2When reviewing a trial court’s decision to grant or deny a motion in limine,

our standard of review is as follows:

[W]e apply an evidentiary abuse of discretion standard of review.

The admission of evidence is committed to the sound discretion of

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(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is

not admissible to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the

character.

(2) Permitted Uses. This evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.

In a criminal case this evidence is admissible only if the probative

value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

Our Supreme Court has provided the following guidance:

Generally, evidence of prior bad acts or unrelated criminal activity

is inadmissible to show that a defendant acted in conformity with

those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).

However, evidence of prior bad acts may be admissible when

offered to prove some other relevant fact, such as motive,

opportunity, intent, preparation, plan, knowledge, identity, and

absence of mistake or accident. Pa.R.E. 404(b)(2). In

determining whether evidence of other prior bad acts is

admissible, the trial court is obliged to balance the probative value

of such evidence against its prejudicial impact.

Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 497 (2009).

Moreover,

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the trial court, and a trial court’s ruling regarding the admission

of evidence will not be disturbed on appeal unless that ruling

reflects manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Danzey, 210 A.3d 333, 337 (Pa. Super. 2019). When

an appellant challenges the ruling on a motion in limine, our scope of review

is limited to the relevant pretrial hearing transcripts. In re L.J., 79 A.3d 1073,

1088-1089 (Pa. 2013) (noting that our scope of review is limited to the

evidence presented at the pretrial hearing).

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The purpose of Rule 404(b)(1) is to prohibit the admission of

evidence of prior bad acts to prove “the character of a person in

order to show action in conformity therewith.” Pa.R.E. 404(b)(1).

While Rule 404(b)(1) gives way to recognized exceptions, the

exceptions cannot be stretched in ways that effectively eradicate

the rule. With a modicum of effort, in most cases it is possible to

note some similarities between the accused’s prior bad conduct

and that alleged in a current case. To preserve the purpose of

Rule 404(b)(1), more must be required to establish an exception

to the rule—namely a close factual nexus sufficient to demonstrate

the connective relevance of the prior bad acts to the crime in

question. [...T]his Court has warned that prior bad acts may not

be admitted for the purpose of inviting the jury to conclude that

the defendant is a person “of unsavory character” and thus

inclined to have committed the crimes with which he/she is

charged.

Commonwealth v. Ross, 57 A.3d 85, 104-105 (Pa. Super. 2012) (en banc)

(citations omitted).

As noted above, the Commonwealth relied on the motive exception in

its pretrial motion to admit the other crimes evidence under Rule 404(b).

Regarding the motive exception, this Court has observed:

The mere identification of similarities between the prior bad acts

and the crime at issue ... does not establish motive. Instead, ...

there must be a firm basis for concluding that the crime currently

on trial “grew out of or was in any way caused by the prior set of

facts and circumstances.”

Id. at 101 (internal citations omitted).

With these principles in mind, we turn to Graham’s argument. First, he

attacks the Commonwealth’s evidence at the pretrial hearing, arguing that it

was too speculative to conclude that the shootings were connected as part of

an “on-going gang war.” On this point, he emphasizes that Officer O’Neill

testified only that he had “intelligence” that the first shooting was connected

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to the second because a “5th Street North” member committed the first.

Graham, however, notes that Officer O’Neill did not divulge the source for his

“intelligence” that a “5th Street North” member committed the first shooting.

By failing to do so, Graham argues, his assertion that the shooting was “gang-

related” was unreliable and lacked probative value. Graham’s Brief at 12-13.

Turning to prejudice, Graham argues that the evidence of the first

shooting and the history of violence between the two groups was unfairly

prejudicial, especially since he was allegedly affiliated with one of the groups.

In his view, this evidence invited the Commonwealth to make its decision not

on the evidence of the specific crime, but instead on unrelated violent crimes

committed by the feuding groups. Id. at 13.

As an initial matter, notwithstanding its grant of the 404(b) motion, the

trial court sustained an objection at trial to Officer O’Neill’s testimony that

Graham was a “5th Street South” associate. While the Commonwealth linked

him to several people involved in the case that were identified as “5th Street

South” members, Graham was never directly identified as a member. Graham

did not object when Officer O’Neill testified that he had seen Graham with

several “5th Street South” members, including Ware and Thornton. At trial,

Graham was not identified as a “5th Street South” member, making his claim

of unfair prejudice on that basis meritless.

That said, the issue then becomes if Graham incurred unfair prejudice

because the trial court allowed the evidence of the previous shooting to

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establish motive. In making that determination, the trial court must balance

the potential for unfair prejudice against the probative value of the evidence,

which, in this case, was to prove motive. Even when not an element of the

offense, evidence of motive is always relevant in a criminal case.

Commonwealth v. Gwaltney, 442 A.2d 236, 241 (Pa. 1982).

Here, the evidence had probative value to prove that the shooting in the

park was connected to the first shooting rather than a random act of violence.

Significantly, Graham did not object to the Commonwealth’s evidence that the

victims of the first shooting were “5th Street South” members. Additionally,

the Commonwealth’s evidence was that Ware and Thornton were together

when they attempted to discard the gun used in the second shooting, and that

both men were “5th Street South” members that Graham knew. Thus, the

trial court did not abuse its discretion in finding that the Commonwealth

presented enough evidence at the pretrial hearing that Graham’s motivation

to commit the shooting in the park was connected to him knowing the “5th

Street South” members that were shot just hours earlier.

In addition to showing motive, the evidence was also admissible under

the res gestae exception, also referred to as the “same transaction” exception.

This exception is applicable in “situations where the distinct crimes

were part of a chain or sequence of events which formed the

history of the case and were part of its natural development.” In

other words, the exception applies to prior bad acts “which are so

clearly and inextricably mixed up with the history of the guilty act

itself as to form part of one chain of relevant circumstances, and

so could not be excluded on the presentation of the case before

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the jury without the evidence being rendered thereby

unintelligible.”

Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa. 2018) (internal

citations omitted).

Besides the temporal and geographic proximity of the two shootings,

there were additional facts tying the two events together. Significantly, Ware

was present at the first shooting and escaped unscathed. Then, shortly after

the second shooting, the police found him discarding the .380 handgun that

was just used in that shooting. Similarly, not long after visiting the victims of

the first shooting, Thornton was arrested with Ware after he tried to discard

the gun used in the second shooting. Moreover, Thornton was the owner of

the green Buick sedan tied to the second shooting. All of this information,

taken together, falls under the res gestae exception and explained the chain

of events that formed the history of the case. Accordingly, we find the trial

court did not abuse its discretion in granting the Commonwealth’s motion in

limine to admit evidence about the first shooting being Graham’s motivation

for committing his offenses.3

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3Graham adds two discrete claims onto his evidentiary challenge. In the first,

he argues that the trial court erred in allowing Officer O’Neill to testify to his

specialized knowledge and experience, even though he was never qualified as

an expert. Graham’s Brief at 13-14. We are unable, however, to find that

Graham ever raised this objection during either the pretrial hearing or trial.

The argument is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial

court are waived and cannot be raised for the first time on appeal.”). Even if

preserved, we find no error because Officer O’Neill testified at trial based on

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III.

In his other issue, Graham contends the trial court illegally sentenced

him by imposing consecutive mandatory minimum sentences based on 42

Pa.C.S. § 9712. That provision provided for the imposition of mandatory

minimum sentences based on factual predicates determined by a trial court

by a preponderance of evidence standard. However, in Alleyne v. United

States, 570 U.S. 99 (2013), the United States Supreme Court held that any

fact that increases the mandatory minimum sentence is an element that must

be submitted to a jury and found beyond a reasonable doubt. Following

Alleyne, this Court has held that mandatory minimum sentences imposed

under Section 9712 are illegal. See Commonwealth v. Valentine, 101 A.3d

801, 812 (Pa. Super. 2014).

The Commonwealth agrees with this request and acknowledges that

Graham was sentenced under a provision that has since been declared

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his personal knowledge and observations of Graham and the other men

involved in the shootings.

We also find no merit in Graham’s other claim added onto his 404(b)

argument, namely, that the trial court erred in failing to give the jury a limiting

or cautionary instruction about the evidence. Graham’s Brief at 14. Again,

however, it does not appear that Graham ever requested such an instruction

or if he did, that the trial court refused to give one. For this reason, the

argument is waived. See Commonwealth v. Schoff, 911 A.2d 147, 158

(Pa. Super. 2006) (“[A] defendant must make a timely and specific objection

at trial or face waiver of h[is] issue on appeal. Failure to request a cautionary

instruction upon introduction of evidence constitutes a waiver of a claim of

trial court error in failing to issue a cautionary instruction.”).

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unconstitutional. Likewise, the trial court asks that we remand for

resentencing for all of the stated reasons. Consequently, with the agreement

of everyone involved, we vacate Graham’s judgment of sentence and remand

for resentencing without application of the mandatory minimum.

Convictions affirmed. Judgment of sentenced vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/22/21

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