Commonwealth v. Scott, 604 EDA 2017

212 A.3d 1094

COMMONWEALTH of Pennsylvania

v.Nalik Shariff S. SCOTT, Appellant

No. 604 EDA 2017

Superior Court of Pennsylvania.

Argued March 13, 2019

Filed June 11, 2019

John J. McMahon, Jr., Philadelphia, for appellant.

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

BEFORE: OLSON, J., DUBOW, J., and STEVENS,^* P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant, Nalik Shariff S. Scott, appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after a jury convicted him of three counts of first-degree murder and related offenses described infra .¹ Appellant asserts twelve claims of trial court error, none of which has merit. We affirm.

The trial court aptly sets forth pertinent facts and procedural history of the case sub judice , as follows:

On December 21, 2016, following a capital murder jury trial before [the trial court], defendant Nalik Shariff Scott [hereinafter "Appellant"] was convicted of three counts of first-degree murder ( 18 Pa.C.S. § 2502 ), three counts of robbery ( 18 Pa.C.S. § 3701 ), one count of criminal conspiracy ( 18 Pa.C.S. § 903 ), one count of carrying a firearm without a license ( 18 Pa.C.S. § 6106 ), one count of carrying a firearm on the streets of Philadelphia ( 18 Pa.C.S. § 6108 ), and one count of possessing an instrument of crime ( 18 Pa.C.S. § 907 ). Appellant was tried with his co-defendant Ibrahim Muhammed. As the jury was unable to reach a consensus following a penalty phase hearing, the [trial court] imposed an aggregate sentence of three consecutive life sentences to be followed by fifty to one hundred years' incarceration ( 18 Pa.C.S. § 1102(a)(1) ). Appellant filed post-sentence motions, which the [trial court] denied on January 25, 2017.

FACTUAL BACKGROUND

At trial, the Commonwealth presented the testimony of [numerous Philadelphia Police detectives and officers, a Philadelphia Firefighter lieutenant, a Delaware State Chief Medical Examiner, and several eyewitnesses. Co-Defendant Muhammed presented testimony from Philadelphia Police detectives and officers, several physicians, and numerous eyewitnesses. Appellant Scott presented the testimony of six Philadelphia Police Detectives.] Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence established the following.

On September 6, 2011, Porfirio Nunez, his wife Juana Nunez, and his sister Lina Sanchez, were working at their family owned Lorena's Grocery, which was located at the corner of 50th and Parrish Streets in Philadelphia. N.T. 12/7/16, at 223-224, 227. Also working that day were Porfirio and Juana's daughters, Jessica and Laura Nunez. N.T. at 12/7/16 at 227.^{[ ]} At approximately 7:55 p.m., Porfirio was located by the back refrigerators, while Lina and Juana were in the back food preparation area and Jessica and Laura were at the front registers. N.T. 12/7/16 at 228; 12/8/16 at 216; 12/9/16 at 228. At that time, defendant [hereinafter "Appellant"] and Ibrahim Muhammed entered the store. N.T. 12/7/16 at 228.

Upon entering, Appellant went behind the counter where Laura and Jessica were located and grabbed Laura by her hair, while Muhammed went to the back of the store where Lina and Juana were located. N.T. 12/7/16 at 228-229, 237; 12/8/16 at 216-217, 219-220. After Appellant grabbed Laura's hair, he pushed her to the ground, causing Laura and Jessica to scream. N.T. 12/7/16, at 228, 230; 12/8/16 at 216. Hearing his daughters' screams, Porfirio came out to the aisle to see what was going on at the front of the store. N.T. 12/7/16 at 228. Appellant, who was in possession of a 9-millimeter handgun, pointed the firearm at Porfirio and shot him through the arm and into his chest. N.T. 12/7/16 at 228, 230-232; 12/8/16, at 193-194; 12/12/16, at 323, 328-329. Porfirio then ran into the back of the store. N.T. at 12/7/16, at 228, 232. Hearing the gunshot, Muhammed then took out his own gun and began shooting Juana and Lina. N.T. 12/7/16, at 233. Muhammed shot Lina Sanchez in her abdomen and back before shooting Juana in the chest and top of her head. N.T. 12/7/16, at 233-236; 12/8/16, at 198-204. Muhammed then turned towards Porfirio and shot him three times in the chest and back. N.T. 12/7/16, at 233-236; 12/8/16, at 190.

After shooting Porfirio, Juana, and Lina, Muhammed walked towards Jessica while Appellant, still holding Laura to the floor, yelled at Jessica to "give [him] the money." N.T. 12/7/16, at 234-236; 12/8/16, at 217. Believing that she was about to be shot, Jessica opened the cash register. N.T. 12/7/16, at 236. Appellant and Muhammed then grabbed what they could from the register before leaving through the front door and fleeing the area. N.T. 12/7/16, at 131-133, 238-239; 12/8/16, at 217.

Police responded to the store to find Porfirio, Juana, and Lina [lying] on the floor inside the store. N.T. 12/6/16, at 270-272. Lina, who was still showing signs of life, was rushed to the Hospital at the University of Pennsylvania. N.T. 12/6/16, at 273-276, 298; 12/8/16, at 201. Juana and Porfirio were similarly transported to the hospital, though they did not show signs of life at the time. N.T. 12/6/16, at 281. Police recovered three projectiles and nine 9mm fired cartridge cases from the scene. N.T. 12/6/16, at 203-204, 208-09; 12/12/16, at 32-333. The medical examiner recovered five bullets from the bodies of the victims. N.T. 12/12/16, at 323.

Porfirio was shot a total of five times: twice in his chest, perforating his spleen, diaphragm, vertebrae, and spinal cord; once in his arm and chest, penetrating his left lung, heart, esophagus, and liver; once in his back, penetrating his lungs and vertebrae; and once in his hand. N.T. 12/8/16 at 190, 193-194. Lina Sanchez was shot a total of two times: once in the upper back, penetrating her back, neck, and mouth; and once in the abdomen, penetrating her colon, liver, and right kidney. N.T. 12/8/16, at 198-199. Juana was shot a total of three times: once in the base of her neck; once in her chest, penetrating her left lung, left pleura, and vertebrae; and once in the head, penetrating her brain and vertebrae. N.T. 12/8/16, at 202-204.

In early February, 2012, narcotics police officers observed Muhammed selling marijuana near the corner of Reedland Street and 62^nd Street in Philadelphia, and subsequently arrested him. N.T. 12/9/16, at 106-111. Following his arrest, Muhammed informed police that he had information about robberies and shootings. N.T. 12/9/16 at 114, 116.

Muhammed was brought to the Southwest detectives' headquarters and talked with Detective Joseph Murray, who began to believe that Muhammed may have been involved in the Parrish Street murders at Lorena's Grocery. N.T. 12/9/16, at 149-150, 154. Muhammed was then brought to the Homicide Unit, where he was interviewed by Detective Thomas Gaul. N.T. 11/9/16, at 251-252.

Muhammed was given Miranda warnings and ultimately provided a statement inculpating himself in the murders. N.T. 12/9/16, at 254-259, 270; 12/12/16 at 89-99. Muhammed admitted to police that he and "Leek" went into the store to rob it, that he was in the back of the store with the women, that he heard a gunshot, and then pulled out his own gun and began firing. N.T. 12/12/16, at 94-95. Muhammed stated that he was firing indiscriminately and that he may have shot a man accidentally as he was leaving the store. N.T. 12/12/16, at 94-95. Muhammed identified Appellant as his co-conspirator in the robbery/homicides. N.T. 12/12/16, at 96.

On February 10, 2012, police detectives prepared a photo spread containing Appellant's photograph and brought it to Jessica and Laura, who both independently identified Appellant. N.T. 12/7/16, at 272-273; 12/8/16, at 237-238; 12/13/16, at 94-96, 112-113. Later that day, Jessica was brought to police headquarters where she identified Muhammed in a photo spread. N.T. 12/7/16, at 275-276; 12/13/16, at 97.

Trial Court Opinion, 6/14/17, at 1-6.

Appellant presents the following questions for our review:

1. Whether The Honorable [Trial Court] erred in preventing the defense from inquiring about potential jurors' bias against Muslims?

2. Whether The Honorable Trial Court erred by, during jury selection, automatically disqualifying potential jurors who indicated they would have any moral, religious or conscientious scruples that would prevent or substantially impair them from returning a death sentence or a life sentence without providing an opportunity for follow-up questions by counsel or the court to further explore the nature of those potential issues?

3. Whether The Honorable Trial Court erred by denying the defense's Batson motion?

4. Whether The Honorable Trial Court erred by permitting the prosecutor to, during opening argument, repeatedly refer to the defendants as "evil" with the object of prejudicing the jury against the defendants and erred by permitting the prosecutor to commit misconduct by consistently making impermissible appeals to emotion and racial bias throughout the trial?

5. Whether The Honorable Trial Court erred by allowing the prosecutor to impermissibly lead key witnesses during direct examination over numerous sustained defense objections to the impermissible conduct, such that the defense was prejudiced and erred by denying the defense a full and fair opportunity to cross-examine Commonwealth witnesses regarding their perception and memory of the incident?

6. Whether The Honorable Trial Court erred by denying the defense's motion to preclude the Commonwealth from presenting expert testimony concerning the quality of a video relevant to the defense's case due to the untimeliness of his report, that testimony's irrelevance, and the prejudice caused to the defense by such expert testimony?

7. Whether The Honorable Trial Court erred by permitting the prosecutor to impermissibly elicit irrelevant and highly prejudicial testimony concerning witness' [sic ] fear of testifying and other evidence related to witness

...