Commonwealth v. Akhmedov

216 A.3d 307

COMMONWEALTH of Pennsylvania

v.Khusen A. AKHMEDOV, Appellant

No. 3443 EDA 2015

Superior Court of Pennsylvania.

Argued July 10, 2018

Filed July 29, 2019

Michael J. Diamondstein, Philadelphia, for appellant.

Christopher P. Lynett, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and McLAUGHLIN, J.

OPINION BY PANELLA, J.:

Appellant, Khusen A. Akhmedov, challenges his judgment of sentence entered in the Philadelphia County Court of Common Pleas, after the trial court convicted him of, inter alia , four counts of third degree murder.¹ Appellant was participating in a drag race when he struck and killed a mother and three of her children as they attempted to cross the street. Appellant now contests the sufficiency of the evidence sustaining his convictions. Specifically, he claims the Commonwealth failed to prove he acted with malice by driving under circumstances that virtually assured injury or death. We disagree and affirm Appellant's judgment of sentence.

The relevant facts and procedural history of this case are as follows. On July 16, 2013, around 10:30 p.m., Appellant was driving a silver Audi at high speed on Roosevelt Boulevard. Witnesses observed Appellant's vehicle engaged in a drag race with a white Honda. The Audi and Honda were weaving in and out of traffic, almost striking each other's vehicles, and at one point driving so close to one another that their cars appeared hitched together. The racers forced other drivers on the road to swerve to avoid the two speeding cars.

Witnesses stated the cars were driving at least 70 miles per hour, well above Roosevelt Boulevard's posted speed limit of 40 miles per hour. Some observers believed the cars were traveling as fast as 90-100 miles per hour. Their driving caused one witness to remark that the racers were "going to cause an accident." N.T. Trial, 7/9/15, at 61.

The drivers approached the intersection of Roosevelt Boulevard and 2nd Street. The intersection did not have a crosswalk and was not intended for pedestrian traffic. The incline of the road limited visibility to just over 400 feet. As the drag racers crested the hill and continued their competition, they encountered Samara Banks and three of her children, who were crossing the street. Appellant attempted to avoid hitting them, but was unable to stop his car in time. Banks and one of her children were killed instantly. Two of her other children died from their injuries at area hospitals shortly thereafter.² Appellant remained at the scene until emergency responders arrived and was arrested.

Appellant was charged with five counts of recklessly endangering another person, and four counts each of third degree murder, involuntary manslaughter, and homicide by vehicle.³ The court granted the Commonwealth's motion to admit evidence of prior bad acts, including: testimony about an incident of reckless driving in Lancaster County; a post from Appellant's Facebook page, hosting a video of a silver Audi drag-racing another vehicle and including comments implying Appellant's participation; and Appellant's driving record, containing numerous violations of the Traffic Code.

Appellant proceeded to a bench trial and was convicted on all counts. He was sentenced to four to eight years' incarceration on each count of third degree murder, and one to two years' incarceration on a single count of REAP, with all sentences to be run consecutively. Appellant's remaining crimes either merged for sentencing or had no further punishment imposed, for an aggregate of seventeen to thirty-four years' incarceration. He filed a timely post-sentence motion, which was denied. Appellant filed a timely notice of appeal and complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). This appeal is now properly before us.

Appellant presents the following questions for our review:

Whether the trial court abused its discretion when it granted the Commonwealth's motion in limine to admit evidence of prior bad acts?

Whether the trial court abused its discretion in denying [Appellant's] request for a particular jury charge on the issue of malice in the context of motor vehicle fatalities?

Whether the evidence was insufficient as a matter of law to sustain the convictions for Third Degree Murder as the evidence failed to establish malice on the part of [Appellant]?

Whether the trial court abused its discretion in denying [Appellant's] motion for a new trial on the basis of the weight of the evidence?

Whether the trial court abused its discretion by ignoring mitigating factors and ordering an excessive sentence?

Appellant's Substitute Brief, at 8.⁴

Appellant first challenges the admission of three pieces of prior bad acts evidence at trial. Appellant avers the introduction of his previous convictions for, inter alia , speeding and reckless driving, witness testimony describing one of those instances, and a video of drag racing from his Facebook account constituted impermissible propensity evidence. Appellant claims the prejudicial effect of this evidence far outweighed its probative value. Further, Appellant contends this evidence of past reckless behavior cannot clarify whether he actually acted with malice on the evening he struck Banks and her children. Appellant concludes the trial court erred in finding the evidence demonstrated Appellant's knowledge of the dangers of his conduct as well as his intent to engage in reckless activity.

The trial court has discretion over the admissibility of evidence, and we will not disturb such rulings on appeal absent evidence the court abused its discretion. See Commonwealth v. Ballard , 622 Pa. 177, 80 A.3d 380, 392 (2013). An abuse of discretion is not a mere error in judgment. See Commonwealth v. Ross , 57 A.3d 85, 91 (Pa. Super. 2012) (en banc ). Rather, "discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record." Id. (citations and internal quotation marks omitted).

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) (citation omitted). "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact." Commonwealth v. Tyson , 119 A.3d 353, 358 (Pa. Super. 2015) (en banc ) (citation omitted). "All relevant evidence is admissible, except as otherwise provided by law." Pa.R.E. 402.

Evidence will not be excluded merely because it is harmful to a defendant's case. See Commonwealth v. Kouma , 53 A.3d 760, 770 (Pa. Super. 2012). "The trial court is not required to sanitize the trial to eliminate all unpleasant facts ... where those facts are relevant to the issues at hand[.]" Commonwealth v. Hairston , 624 Pa. 143, 84 A.3d 657, 666 (2014) (citation and internal quotations omitted).

Mere similarities between a defendant's prior bad acts and the crimes for which he is being tried will not qualify for a Rule 404(b)(2) exception. See Commonwealth v. Sitler , 144 A.3d 156, 163 (Pa. Super. 2016) (en banc ). Rather, to qualify for an exception to Rule 404(b)(1)'s general prohibition, the prior bad acts must have a "close factual nexus sufficient to demonstrate the[ir] connective relevance" to the crime in question. Ross , 57 A.3d at 104 (finding testimony about defendant's previous assaults on other women could not be admitted to prove intent at trial for first degree murder, where defendant did not argue accident, mistake, or lack of required intent).

To determine whether the prior bad acts evidence was relevant, we must review the charges the Commonwealth was seeking to prove. Appellant was charged with third degree murder. To sustain this conviction, the Commonwealth needed to prove that Appellant acted with malice without the specific intent to kill. See Commonwealth v. DiStefano , 782 A.2d 574, 582 (Pa. Super. 2001). "[O]ur courts have consistently held that malice is present under circumstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Commonwealth v. Packer , 641 Pa. 391, 168 A.3d 161, 168 (2017) (citation omitted). Malice is more than ordinary recklessness. See Commonwealth v. Hoffman , 198 A.3d 1112, 1119 (Pa. Super. 2018). Malice is "a class of wanton and reckless conduct which manifests such an extreme indifference to the value of human life which transcends the negligent killing[.]" Id.

Parties are to be given greater latitude to present evidence when they are tasked with establishing a state of mind. See Commonwealth v. Honeycutt , 227 Pa.Super. 265, 323 A.2d 775, 778 (1974). "Where recklessness, wantonness, or willfulness is an issue it is frequently necessary, or desirable in order to establish a strong case, to show not only an indifference to consequences at the instant an accident occurred, but also that such a state of mind persisted ... prior to the accident." Id. (citation omitted). "Unlike the speed at which a vehicle is...