Commonwealth v. Buford

101 A.3d 1182

2014 PA Super 224

COMMONWEALTH of Pennsylvania, Appellee

v.Nasir BUFORD, Appellant.

No. 3297 EDA 2012

Superior Court of Pennsylvania.

Submitted Sept. 15, 2014.

Filed Oct. 8, 2014.

Mitchell S. Strutin, Philadelphia, for appellant.

Hugh J. Burns, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: ALLEN, OLSON, and OTT, JJ.

Opinion

OPINION BY ALLEN, J.:

Nasir Buford, (“Appellant”), appeals from the judgment of sentence imposed following his conviction by a jury of first degree murder, possessing an instrument of crime, and violating the Uniform Firearms Act.¹ We affirm.

The trial court provided the following background relative to this action:

Appellant ... appeals from this Court's judgment[ ] of sentence. Following a jury trial before this Court, Appellant was found guilty of first Degree Murder, 18 Pa.C.S.A. § 2502(a), Possessing an Instrument of Crime, 18 Pa.C.S.A. § 907 (PIC) and a Violation of the Uniform Firearms Acts, 18 Pa.C.S.A. §§ 6106 (VUFA) [.] The charges stemmed from the September 18, 2010 killing of twenty-one (21) year old Nathaniel Palmer [“decedent”] in an alleyway on the 1900 block of Bristol Street in Philadelphia.

Following the verdict the Court sentenced Appellant to Life Imprisonment for the murder conviction and lesser prison sentences for the remaining convictions. [FN1: The Court imposed prison sentences of three and a half (3 ½) to seven (7) years for VUFA, and one (1) to two (2) years for PIC.] All sentences were deemed to run concurrently. Timely Post Sentence motions were filed and denied. The instant timely appeal was filed.

Trial Court Opinion, 3/17/14, at 1. The trial court and Appellant have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

I. Is the appellant entitled to an arrest of judgment with respect to his convictions for murder of the first degree, firearms not to be carried without a license and possessing instruments of crime since the evidence is insufficient to sustain the verdicts of guilt as the Commonwealth failed to sustain its burden of proving the appellant's guilt beyond a reasonable doubt?

II. Is the appellant entitled to a new trial as a result of the trial court's error in denying his right to be present during the jury selection phase of the trial during which prospective juror no. 7 was questioned?

III. Is the appellant entitled to a new trial as a result of the trial court's ruling that allowed the Commonwealth to introduce the preliminary hearing testimony of Yvonne Ann Henderson?

IV. Is the appellant entitled to a new trial as a result of the trial court's ruling that allowed the Commonwealth to introduce that portion of the preliminary hearing testimony of Yvonne Ann Henderson with regard to her prior statement and identification of a photograph of “Flip?”

V. Is the appellant entitled to a new trial as a result of the trial court's ruling that allowed the Commonwealth to present the testimony of Dr. Edwin Lieberman concerning the results of an autopsy performed by Dr. Hunt?

VI. Is the appellant entitled to a new trial as a result of the trial court's ruling that allowed the Commonwealth to introduce the prior statements of Commonwealth witnesses Derrick Michael Jackson and Ralph Smith as substantive evidence?

VII. Is the appellant entitled to a new trial as a result of the trial court's ruling that allowed the Commonwealth to present testimony from Detective Joseph Bamberski with regard to the statement [sic] of mind and out-of-court statements made by unavailable witness Yvonne Ann Henderson?

Appellant's Brief at 5–6.

Appellant's first issue challenges the sufficiency of the evidence supporting his convictions. Specifically, Appellant contends:

The Commonwealth's evidence failed to establish the appellant's identity as a shooter or as a participant in the incident resulting in the victim's death ... Even if the Commonwealth did, in fact, prove the appellant's involvement in the crime, it failed to prove that the appellant acted with the specific intent to kill, malice or premeditation, that he fired weapon or that he was responsible for the victim's death. The Commonwealth's evidence in this regard was speculative, conjectural and inherently unreliable and did not sustain the Commonwealth's burden beyond a reasonable doubt.

Appellant's Brief at 20.

Further, Appellant maintains:

[T]he Commonwealth failed to sustain its burden of proving the appellant's guilt of a violation of the Uniform Firearms Act, 18 Pa.C.S.A. § 6106. Barrel length is an essential element of the crime defined in 18 Pa.C.S.A. § 6106. In this matter, the Commonwealth presented absolutely no evidence to establish barrel length.

Id. at 25–26 (citations omitted).

We recognize:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Jones, 886 A.2d 689, 704 (Pa.Super.2005) (citations omitted).

We have expressed:

Evidence is sufficient to sustain a conviction for first-degree murder where the Commonwealth has established that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the defendant committed the killing, and that the killing was deliberate. A specific intent to kill may be inferred from the defendant's use of a weapon on a vital part of the victim's body.

Commonwealth v. Ramos, 573 Pa. 605, 827 A.2d 1195, 1196 (2003) (internal citations omitted).

Our crimes code defines possessing an instrument of crime as follows:

§ 907. Possessing instruments of crime

(a) Criminal instruments generally. —A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

(b) Possession of weapon. —A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.

* * *

(d) Definitions. —As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

* * *

“Instrument of crime. ” Any of the following:

(1) Anything specially made or specially adapted for criminal use.

(2) Anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

“Weapon. ” Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon.

18 Pa.C.S.A. § 907(a) -(b), and (d).

Moreover, the Uniform Firearms Act provides in pertinent part:

§ 6106. Firearms not to be carried without a license

(a) Offense defined. —

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.

* * *

(e) Definitions. —

(1) For purposes of subsection (b)(3), (4), (5), (7) and (8), the term “firearm” shall include any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of the weapon.

18 Pa.C.S.A. § 6106(a)(1)-(2), (e)(1) (footnote omitted).

Here, the trial court determined:

The evidence, viewed in the light most favorable to the Commonwealth[,] was as follows: on September 18, 2010 at about 1:27 a.m., Philadelphia Police Officer Ernest Tolan responded to a radio call for a person with a gun and was the first arriving officer at the 1900 Block of Bonitz Street in Philadelphia. He parked on the corner of Wayne Avenue and saw the decedent lying in the middle of the street. The [decedent] appeared to be shot multiple times and was unresponsive. As other arriving responders tended to the [decedent], Officer Tolan followed the blood trail to Bristol Street. There, he observed buildings that had bullet damage and saw a car with open windows. The smell of marijuana emanated from inside the car. N.T. 7/18/12, 80–90.

Dr. Edwin Lieberman testified that the [decedent] suffered three (3) gunshot wounds and also suffered blunt force trauma. One bullet entered the [decedent's] right shoulder and exited his back. That wound did not cause any significant trauma. Another bullet entered the [decedent's] back and exited the right

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