Com. v. Rahim, F. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
FAZEL RAHMAN RAHIM
Appellant No. 1194 MDA 2018
Appeal from the Judgment of Sentence imposed June 28, 2018
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0004535-2016
BEFORE: BOWES, J., STABILE, J. AND MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: DECEMBER 31, 2019
Appellant, Fazel Rahman Rahim, appeals from the judgment of sentence
the Court of Common Pleas of Berks County imposed on June 28, 2018.
Appellant challenges the weight of the evidence supporting his convictions.
Upon review, we affirm.
The trial court summarized the relevant factual and procedural history
of the instant matter in its Rule 1925(a) opinion. Briefly, following a heated
argument with victim in the courtyard between their apartments, Appellant
drew a revolver and fired at victim from inside the kitchen door frame.
According to the Commonwealth witnesses, Appellant fired at victim three
times. Appellant testified on his own behalf that he shot victim twice in self-
defense after victim charged at him with a large stick and ripped his kitchen
door from its hinges. Appellant testified that he opened fire only as victim
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crossed the threshold into his kitchen from the courtyard. Two bullets were
removed from the side of victim’s body. The Commonwealth did not present
evidence regarding the path of a third bullet.
Following a jury trial, Appellant was convicted of aggravated assault and
possessing an instrument of crime. The trial court sentenced Appellant to an
aggregate term of seven to twenty years’ imprisonment, followed by a five-
year term of probation. Appellant’s counsel filed a timely post-sentence
motion, which the trial court denied. This appeal followed.1
In his appeal, Appellant contends that the trial court abused its
discretion by denying his weight of the evidence challenge. Specifically,
Appellant challenges the credibility of the Commonwealth witnesses or the
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1 Appellant, while represented by counsel, pro se filed the instant appeal
before the disposition of his post-sentence motion. This raises two problems,
which, however, do not prevent us from addressing the merits of the instant
appeal.
Generally, there is no right to hybrid representation; pro se filings by a
counseled defendant constitute legal nullities. See Commonwealth v. Ellis,
626 A.2d 1137 (Pa. 1993). However, a notice of appeal is distinguishable
from other filings, as it protects a constitutional right. Commonwealth v.
Williams, 151 A.3d 621, 623, 624 (Pa. Super. 2016), citing Ellis, 626 A.2d
at 1138-41; 210 Pa. Code § 65.24.
In the interest of judicial economy, the notice of appeal, although premature,
is deemed timely filed. See Pa.R.A.P. 905(a)(5) (providing that notice of
appeal filed after announcement of determination but before entry of
appealable order shall be treated as filed after such entry and on the day
thereof).
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inconsistencies between the testimony of the Commonwealth witnesses and
Appellant’s own testimony. We disagree.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal
citations omitted).
For the reasons explained below, we conclude that the trial court acted
within its discretion by denying Appellant’s challenge to the weight of the
evidence.
The trial court addressed the first weight of the evidence claim as
follows:
At trial Commonwealth witnesses testified that [Appellant] hit
[victim] with the first two bullets then fired a third that did not
make contact while [victim] lay on the ground in the courtyard.
[Appellant] testified that he fired all three while [victim] was
within or near the kitchen door frame. [Appellant] requests a new
trial because, “the Commonwealth failed to produce evidence” of
damage to the concrete ground of the courtyard. Essentially,
[Appellant] argues that the Commonwealth needed to show
damage to the concrete patio/ground to corroborate its
testimonial evidence that [Appellant] fired the third shot
downward, missing [victim]. . . . Because the discrepancy goes to
the credibility of Commonwealth witnesses, its resolution is
exclusively for the jury. The guilty verdicts . . . are not so contrary
to the evidence as to shock one’s sense of justice. In judging
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credibility, the jury was free to believe all, part or none of the
evidence. Moreover, the jury’s verdict could have been based
solely on the first two gunshots without regard to whether
[Appellant] fired the third bullet while [Appellant] was near the
doorway or outside on the ground.
Trial Court Opinion, 4/24/19, at 5 (internal citations omitted).
Regarding the second weight of the evidence claim, the trial court
stated:
The thrust of [Appellant’s] argument is that the testimony of the
Commonwealth witnesses concerning [victim]’s conduct lacked
credibility; therefore, the guilty verdicts are so contrary to
[Appellant]’s testimony – that [victim], “pulled a door off the
hinges in an attempts to forcibly enter [Appellant]’s home prior to
[Appellant] firing his gun” – as to shock one’s sense of justice and
warrant a new trial. . . . [Appellant]’s claim amounts to nothing
more than a dispute regarding the credibility of [Appellant]’s
testimony versus of that [victim], his wife [], and his step-son [].
As noted, this was a jury trial. While passing upon the credibility
of witnesses and the weight of the evidence produced, the jury
was free to believe all, part or none of the evidence.
This claim concerns the jury’s determination of whether
[Appellant]’s use of deadly force constituted justifiable self-
defense (i.e., whether [Appellant] believed he was in danger of
death or serious bodily injury at the moment he used deadly force,
or that while [Appellant] actually believed he needed to use such
to use such force, his belief was unreasonable). Here, the weight
given to the testimony of the several eye witnesses on this
question is a matter of credibility rightfully left to the jury, and the
jury’s determination is not so contrary to the evidence as to shock
one’s sense of justice.
Id. at 5-6 (internal citations omitted).
In light of the foregoing, there is no basis in the record on which we
could conclude that the trial court committed an abuse of discretion in
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resolving Appellant’s weight of the evidence claim in favor of the
Commonwealth.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2019
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