Commonwealth v. Hogan

COMMONWEALTH OF PENNSYLVANIA, Appellee v. KAREEM HOGAN, Appellant

J.S26045/14

No. 2723 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

APRIL 13, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence August 27, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division No(s).: CP-51-CR-0003016-2012

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,^* JJ.

MEMORANDUM BY FITZGERALD, J.:

Appellant, Kareem Hogan, appeals from the judgment of sentence of twenty-six to fifty-two years' imprisonment imposed after a jury found him guilty of murder of the third degree,¹ conspiracy,² and carrying firearms in public in Philadelphia.³ Appellant claims the evidence was insufficient to sustain the conspiracy conviction and the trial court erred in refusing to instruct the jury on voluntary manslaughter—heat of passion. In nineadditional arguments, Appellant asserts the Commonwealth committed prosecutorial misconduct by suggesting he threatened witnesses, referring to his pretrial incarceration, arguing inferences not supported by the trial evidence, and mischaracterizing the issue of self-defense.⁴ We are constrained to affirm.

On January 6, 2012, Appellant was arrested and charged with general homicide, conspiracy, and related weapons violations for the October 27, 2011 shooting death of Joel Negron ("decedent").⁵ Appellant proceeded to a jury trial that commenced on June 25, 2013. The trial court summarized the evidence presented at Appellant's jury trial.⁶

On October 27, 2011, at approximately 6:30 p.m., in response to a radio call, Police Officer Antonio Smith, upon arrival at Waterloo and Westmoreland Streets in Philadelphia, saw [the decedent] lying on the sidewalk of Westmoreland Street. Police Officer Smith examined [the decedent's] injuries, noting multiple bullet wounds. The officer did not observe a weapon on or about [the decedent]'s body. Within minutes an ambulance arrived and took [the decedent] to the hospital.

At 7:17 p.m., [the decedent] died at Temple University Hospital. Dr. Edwin Lieberman, an Assistant Medical Examiner and an expert in forensic pathology, concluded that [the decedent] died of gunshot wounds to his back and torso. [The decedent] had suffered three gunshot wounds. One shot was to his upper back, which fractured

his sixth rib and hit his right lung. One shot was to his upper left back, which fractured his sixth rib and hit his left lung. One shot was to his front right side of the hip which exited through the right buttock.

Police Officer Robert Flade of the Crime Scene Unit arrived at the scene at 8:08 p.m. Officer Flade recovered seven fired cartridge casings from the scene: five .25-caliber fired cartridge casings and two .40-caliber fired cartridge casings.

According to Police Officer Raymond Andrejczak, an expert in firearms identification, the five .25-caliber fired cartridge cases recovered from the scene were fired from the same firearm. The two .40-caliber fired cartridge casings were fired from a separate firearm. The two projectiles recovered from [the decedent]'s body by the medical examiner's office were both .25-caliber and fired from the same firearm.

At trial, many of the witnesses in this case gave testimony that was inconsistent with the statements they gave to police. On November 25, 2011, Johnny Walker gave a statement to police. Walker explained that he was walking in the area of Front and Westmoreland Streets when he heard yelling and saw [Appellant] and Brandon Sanabria. [The decedent] and a friend were walking from Waterloo and Westmoreland Streets towards Hope Street. [The decedent] said "there's that bitch ass nigga right there." [Appellant] responded "[o]h, he [is] pulling." [Appellant] and Sanabria pulled out their guns and started shooting at [the decedent. The decedent] said "[t]hat's all your bitch ass nigga got?" [The decedent] walked to Waterloo and Westmoreland Street and then fell on the sidewalk.

The day after the murder, Sanabria showed Walker a silver gun and asked if he wanted to buy it. Walker refused. Walker also told the police that he always saw [Appellant] carrying a black .40-caliber firearm on hiship.⁷ At trial, Walker recanted, denying that gave the answers in his statement.

On November 26, 2011, Fredrick Miller, [Appellant's] [stepfather], gave a statement to police. In the statement, Miller explained that on the night of the murder, he was at home at 3335 Waterloo Street when he heard about seven gunshots. [Appellant] and Sanabria ran into the house and put guns on the floor. Miller told [Appellant] and Sanabria to leave and they did. Monte Hogan, Miller's stepson, put the guns in a bag in the corner. About two hours later, Sanabria called and informed Monte Hogan that he was sending a woman to retrieve the guns. A woman called Goida arrived and took the guns to Sanabria's house.

The next day, [Appellant] came to Miller's house and told him that he had been walking with Sanabria on Westmoreland Street when he saw [the decedent] walking with Edwin Laboy and Onehida Rodriguez. [The decedent] told [Appellant], "there goes those bitch niggas from Waterloo." [The decedent] was trying to reach for a weapon, so [Appellant] pulled out his .40-caliber and tried to shoot, but it jammed. Sanabria then pulled out his .25-caliber firearm and shot [the decedent]. [Appellant] explained that the reason they were arguing with [the decedent] was that Yaniz Estrada had a conflict with people from Mascher Street about selling PCP on Waterloo Street. [Appellant] and Sanabria didn't want Estrada selling PCP on the block because they sold PCP on Mascher Street.

At trial, although Miller confirmed that himself, [the decedent], and Estrada sold PCP in the area of Waterloo and Westmoreland Streets, he denied that [Appellant] and Sanabria ran into hi[s] home with guns after the murder. Instead, he said that on the night of the murder after he heard gunshots he saw a group of people from Mascher and Mutter Streets yelling and running around.

On November 26, 2011, Rafael Torres-Burgos gave a statement to police describing that on the night of the murder he was walking down Westmoreland Street to pick up his girlfriend when he heard arguing and yelling. Torres-Burgos heard about three gunshots and saw [Appellant] who was holding a gun and Sanabria running from Waterloo Street towards Howard and Hope Street.

At trial, Torres-Burgos denied seeing [Appellant] and Sanabria shoot [the decedent]. Torres-Burgos testified that he was in his home when he heard two or three gunshots. Torres-Burgos ran outside and saw [the decedent] laying on the ground and two people he did not recognize running away.

On November 27, 2011, Yaniz Estrada gave a statement to police. In the statement, Estrada explained that about two or three days before [the decedent]'s murder she was on the 3300 block of Waterloo Street when she was approached by [Appellant] and Sanabria. They asked Estrada if she was selling drugs and told her that she needed to stop selling. Estrada told them she was not selling drugs and they walked away. On the day of the murder, at about 5:00 p.m., Estrada arrived on the 3300 block of Waterloo Street. While she was in the area she said hello to [the decedent] and then went home.

At trial, Estrada confirmed that she was on the block on the day of the murder and had said hello to [the decedent]. Estrada denied that two days before the murder, [Appellant] and Sanabria had approached her. She also denied selling drugs at the time of the murder.

On November 27, 2011, Edwin Laboy gave a statement to police. Laboy stated that on the night of the murder when it was just starting to get dark, Laboy ran into [the decedent] near Westmoreland and Waterloo Streets. As he was talking to [the decedent, Appellant] and Sanabria approached them. Laboy started to walk away and heardfour or five gunshots. Laboy saw [Appellant] and Sanabria run away. Laboy explained that [Appellant] and his friends had been selling PCP on the block and wanted rent money from Estrada, who was working with Miller and [the decedent].

At trial, Laboy confirmed that he had seen [the decedent] near Westmoreland and Waterloo Streets shortly before [the decedent] was murdered, but testified that he was on a different street when he heard about four or five gunshots. Laboy walked back to Westmoreland and Waterloo Streets and went to [the decedent] who was shot and dying on the street. Laboy explained that a few days before [the decedent]'s murder, . . . there was an argument because [the decedent], Miller, and Estrada wanted to sell PCP on the block but [Appellant] did not want them to sell PCP without paying rent for it.

Trial Ct. Op., 10/29/13, at 2-6 (record citations omitted). Appellant did not testify at trial and presented no evidence on behalf of his defense.

We reproduce the following portions of the trial record relevant to Appellant's prosecutorial misconduct claims. The Commonwealth, in its opening statements, argued:

To understand this case, you need to understand that this area near Waterloo Street and Westmoreland is a very high-crime, very high-drug area.

[Appellant's counsel]: Objection. Objection.

THE COURT: That's overruled.

[Commonwealth]: It's the kind of area where people don't want to come forward and talk to police. People don't want to get involved.

[Appellant's counsel]: Objection.

THE COURT: Overruled.

[Commonwealth]: It's the kind of area where, when the police are on the scene, even though people saw what happened, they're not going to run up to the police and say, hey, I got information, take my name, let me give a statement. It's actually quite the opposite. People don't want to get involved, and they certainly don't want people to see them interacting with the police. To understand this case, you need to understand why that is, the fear that comes along with being involved in cooperating with the police and telling them the truth and coming to court and testifying

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