Commonwealth v. Nasir

308 A.3d 812

COMMONWEALTH of Pennsylvania

v.Ahmad NASIR, Appellant

No. 925 EDA 2022

Superior Court of Pennsylvania.

Argued August 31, 2023

Filed December 12, 2023

Reargument Denied February 21, 2024

Appeal from the Judgment of Sentence Entered March 8, 2022, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0006797-2019, Charles A. Ehrlich, J.

Michael Wiseman, Philadelphia, for appellant.

Sade N. Blount, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.^*

OPINION BY BOWES, J.:

Ahmad Nasir appeals from his judgment of sentence of life imprisonment without the possibility of parole imposed upon his convictions of first-degree murder, conspiracy, possession of an instrument of crime ("PIC"), and a violation of the Uniform Firearms Act ("VUFA"). We affirm.

Jimmie Bryant was murdered in an alley in Philadelphia on the evening of January 28, 2019, shot fifteen times by a man who fled in a waiting Nissan Maxima with heavily tinted windows. Notably, the brake lights of the car were illuminated before the shooter entered through the front passenger door. The police recovered fired casings from the scene and a holster discarded on the street during the Nissan’s flight. The Nissan ultimately was abandoned on a nearby street. One police officer caught up to the vehicle in time to witness the passenger exit but was unable to give chase until backup arrived and it could be determined that the vehicle had no remaining occupants. By that time, neither the passenger nor the driver was able to be located. The police ran the license plate and determined that the vehicle was registered to an address at which Appellant’s paramour, Shin Abdussamad, resided.

The subsequent execution of a search warrant on the Nissan produced, inter alia, a nine-millimeter Glock semi-automatic handgun containing an empty fifteen-cartridge magazine, a loose ammunition magazine, two cell phones and chargers, gloves, and an opened bottle of Mountain Dew. Fingerprints and DNA evidence were taken from the items where available, as well as from the vehicle itself. Police also recovered paperwork from Delia’s Gun Shop, receipts from Spring Garden Wash & Lube, and vehicle registration and insurance cards in the name of Daniel Stephon Brown.¹ Police obtained video from the gun shop and the car wash from January 22, 2019, the date on the receipts. Both of these videos depicted Appellant with a man named Stanley Purcell. Further, Appellant’s fingerprints were identified among those taken from the Nissan involved in the shooting.

Homicide detectives informed Agent Edward Lichtenhahn of the Gun Violence Task Force of the attempted gun purchase at Delia’s Gun Shop. His investigation revealed that the paperwork and license submitted for the purchase was in the name of Daniel Stephon Brown. The transaction had been denied because a background check showed that Mr. Brown had been involuntarily committed while he had served in the United States Navy.

Agent Lichtenhahn contacted Ian Johnston, who had served as Appellant’s probation officer since December 2018, to review the video footage. He identified Appellant, who was not permitted to carry a firearm. While Appellant had reported as scheduled to Mr. Johnston without any violations for over a year, Mr. Johnson was unable to contact or locate Appellant in the weeks following the shooting.

Both Agent Lichtenhahn and Mr. Johnston obtained warrants for Appellant’s arrest. Appellant was eventually apprehended in Virginia in May of 2019, and charged with violating his probation and VUFA. Following the issuance of an arrest warrant and detainer, Appellant waived extradition and was returned to Pennsylvania. A buccal swab was then taken from Appellant’s cheek pursuant to a warrant.

Ultimately, the DNA sample obtained from Appellant was matched with that found on the Glock, magazine, cell phones, Mountain Dew bottle, gloves, and various areas of the Nissan, and ballistics testing indicated that the casings recovered from the scene of Bryant’s murder were fired from the Glock in question.² Consequently, Appellant was charged with the remainder of the offenses enumerated above and a warrant for his arrest was issued.

During jury selection for his trial, Appellant raised several challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (establishing the procedure for a defendant to allege purposeful discrimination in the selection of a jury through the prosecutor’s use of peremptory challenges). Specifically, Appellant alleged that the Commonwealth improperly struck two black jurors on account of their race. However, the trial court accepted the Commonwealth’s proffered reasons for dismissing those jurors as legitimate and race-neutral and denied Appellant’s challenges.

At trial, the Commonwealth offered numerous witnesses to testify to the facts outlined above. Additionally, the Commonwealth called Detective Thorsten Lucke, an expert in video recovery and analysis. The evening before testifying, Detective Lucke had created a video that compiled footage from Delia’s Gun Shop, the Spring Garden Wash & Lube, and the area of the shooting. Within the compilation, Detective Lucke superimposed a still image of Appellant taken from the gun shop onto footage of the Nissan’s passenger at the scene of the murder for the purpose of facilitating comparison of Appellant’s appearance at the time in question with the appearance of the purported shooter. Appellant, who had not previously seen the compilation video, objected. The trial court sustained the objection, ruling that the inserted image be removed from the rest of the video and instructing the jury that it was within their sole province to determine the identity of the Nissan’s passenger. After the jury nonetheless saw the inserted im- age again, Appellant unsuccessfully moved for a mistrial on multiple occasions.³

In the end, the jury convicted Appellant of the crimes listed at the outset of this writing. The same day, the court sentenced him to the mandatory term of life imprisonment, with concurrent sentences of ten to twenty years for conspiracy, three to six years for VUFA, and two to four years for PIC. Appellant filed a timely post-sentence motion which the trial court promptly denied without a hearing. This timely appeal followed, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following questions, which we have re-ordered for ease of discussion:

1. Did the court err, abuse its discretion and violate due process of law when it denied the defense motion to dismiss the conspiracy count at the close of the evidence as the evidence was insufficient to permit it to go to the jury or to sustain a guilty verdict?

2. When there was no evidence upon which to base such an instruction, did the court err and abuse its discretion when it instructed the jury that it could find Appellant guilty of first- or third-degree murder, if he or a co-conspirator killed the victim and Appellant had a specific intent to kill and/or malice[?]

3. Did the court err, abuse its discretion and violate Appellant’s right to due process of law secured by the Fourteenth Amendment to the United States Constitution and the Pennsylvania Constitution, and Pa. R.Crim.P. 573, when it denied Appellant’s mistrial motion following the prosecutor’s display during the testimony of Detective Thorsten Lucke of a video in which [Detective] Lucke inserted Appellant’s photo … without having provided said altered video to the defense prior to displaying it to the jury?

4. Did the trial prosecutor violate Appellant’s right to equal protection of the law secured by the Fourteenth Amendment to the United States Constitution and the Pennsylvania Constitution as articulated in Batson … when he peremptorily struck African-American venirepersons 15 and 22?

5. Did the court abuse its discretion, err, make unsupported factual findings and misapply steps two and three of the Batson three-step process, when it found that the prosecutor offered race neutral reasons for these strikes and found "no pattern?"

Appellant’s brief at 2-3.

[1] We first examine Appellant’s claims that the Commonwealth’s evidence was insufficient to (1) survive his motion to dismiss the conspiracy charge, and (2) support instructing the jury on conspiracy liability. Although stated as separate issues, Appellant essentially presents the same argument for each. See Appellant’s brief at 34-36. This is apt, because if the evidence was legally sufficient to defeat a motion to dismiss the conspiracy charge, then it was sufficient to warrant a jury instruction on conspiracy liability. See Commonwealth v. Chambers, 602 Pa. 224, 980 A.2d 35, 49 (2009) ("Instructions on defenses or theories of prosecution are warranted when there is evidence to support such instructions.").

[2–4] The following legal principles govern our consideration of legal sufficiency:

The standard we apply in reviewing the sufficiency of 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 that of the factfinder. 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.

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