Com. v. Cyrus, Z. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ZAHER CYRUS, : No. 38 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, August 1, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003973-2011
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 04, 2014
Zaher Cyrus, appellant, was involved in multiple shootings in the
vicinity of Germantown and Erie Avenues in Philadelphia. At approximately
11:00 p.m. on January 14, 2011, appellant shot and injured Anthony
Gardens Skating Rink. Jason Howard, who was in front of a family
the early morning hours of January 15, 2011, appellant shot and killed Gary
uring the shooting Malik Wells
appellant appeals the judgment of sentence entered on August 1, 2012, in
the Court of Common Pleas of Philadelphia County. We affirm.
* Retired Senior Judge assigned to the Superior Court.
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SKATING RINK
At the time of the shooting, Ronnie Blalock was standing outside of the
skating rink. In a statement Blalock gave to the police, he explained that he
walked across the street and said to a
Appellant immediately pulled out a gun and Redguard pulled out a gun.
(Notes of testimony, 7/27/12 at 126-127.) Blalock ran around the corner,
and Slater went to his car and grabbed his gun. (Id. at 127.) Appellant
s - Id.) Blalock
averred that appellant had a .40 caliber or .9 mm black gun and Slater had a
.9 mm with an extended clip, which was black too. (Id. at 128.) Later that
night, appellant saw Blalock a
skating rink. (Id. at 131.) Blalock was shown photo arrays and identified
Sherod Benson, appellant, and Redguard among others. (Id. at 135-137.)
At trial, Blalock denied giving this statement to the police and denied having
any knowledge of what had occurred. In fact, Blalock denied even being at
the skating rink or even knowing appellant. (Notes of testimony, 7/26/12 at
102.)
At this same time, Lamont Griffin was leaving a party at the skating
rink. When the shots were fired, he got in his car and left without speaking
to the police. On January 18, 2011, Griffin was arrested for possession of
drugs and was questioned about the shooting. On January 19 th, he provided
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a statement to the police.1 Therein, Griffin stated he saw two black males
walking toward Westmoreland Avenue. (Notes of testimony, 7/27/12 at 90-
91.) A third black male exited the passenger side of the van. Griffin then
ran up Hilton Street as the shots were being fired. He heard over ten shots.
(Id. at 92.) Griffin turned around and saw a black male running across the
street shooting a gun. (Id. at 91.) The male was later identified as Slater.
He was also shown a photo array and identified appellant. (Id. at 155.)
Detective John Bartol testified that he conducted a second interview
with Griffin on February 3, 2011, due to contradictions in his first interview
and information he received from other sources. The second statement was
read to the jury. In this statement, Griffin told Detective Bartol that he saw
appellant shooting. He told the detective that he did not say anything earlier
because of what could happen to him if anyone found out he talked to the
police. (Id. at 108-120.)
Officer Raymond Esquilin was one of several officers who responded to
the scene of the shooting. When he arrived, he saw a small crowd
surrounding Redguard, who was lying on the ground and had suffered
multiple gunshot wounds to his torso. Redguard was immediately
transported to the hospital.
1
During the trial, both Griffin and Blalock denied knowing who shot
Redguard.
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Detective Glenn McClain testified that he was assigned to investigate
the shooting outside the skating rink. He recovered 11 fired cartridge
casings from a .9 mm caliber weapon, 8 fired cartridge casings from a
.40 caliber weapon, and 3 projectiles. (Notes of testimony, 7/27/12 at 78-
body, a .380 auto. (Id. at 86.)
Officer Raymond Andrejczak testified that he examined the ballistic
evidence from the shooting outside the skating rink. He received and
examined a total of 21 fired cartridge cases, three bullets, and one bullet
jacket fragment. This included eight fired cartridge cases from a .40 caliber
Smith and Wesson that were fired from the same weapon, ten fired cartridge
cases from a .9 mm Luger that were fired from the same weapon, and two
fired cartridge cases from a .380 caliber automatic that were fired from the
same weapon. (Notes of testimony, 7/30/12 at 119-129.)
Officer Peter Singer testified that he responded to Einstein Hospital for
a report of a shooting. Dixon told the officer that he was leaving a party at
the skating rink and heard gunfire. He jumped into a taxi because of the
shooting and realized he had been shot. The taxi driver took him to the
hospital. However, hospital video surveillance did not show a taxi bringing
in a shooting victim. Dixon suffered gunshot wounds to the right side of his
chest. (Notes of testimony, 7/26/12 at 92-97.)
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EAGLE BAR
Several hours later on January 15, 2011, at approximately 2:00 a.m.,
appellant and his friends were at the Eagle Bar located at Germantown and
Erie Avenues. They posed for multiple photographs for a local photographer,
Korbe
to take photographs of patrons. In each photograph, appellant was wearing
a blue jacket with white sleeves and was holding a silver gun. (Id. at 100-
101.) Several minutes after appellant and his friends had paid for their
photographs, Odd heard multiple gunshots and ducked behind a car.
At trial, Odd testified that he could not see who was shooting the
weapons. However, in an out-of-court statement he identified appellant
from the photographs.2 In the statement, Odd stated he saw a black male,
shooter was wearing a blue and white jacket. Odd testified that he suffered
from schizophrenia and was bipolar. (Notes of testimony, 7/25/11 at
96-140.)
Officers Floiran Pagan and Malisha Camps responded to a radio call
regarding the shooting at the Eagle Bar. When they arrived, they saw
Jones, who appeared to be critically wounded, and Wells, who was wounded.
Both men were transported to the hospital. Dr. Edwin Lieberman opined
2
the record.
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manner of death was a homicide. Jones suffered multiple gunshot wounds
to his chest, and the bullets traveled through his lungs and right forearm.
(Notes of testimony, 7/27/12 at 21.) Wells sustained several gunshot
wounds to the chest and was hospitalized for a week and then released.
Subsequently, the police took a statement from appellant. Appellant
was shown photographs taken by Odd, and he identified himself,
James
each photo, appellant is holding a .380 handgun. In essence, appellant
claimed that he acted in self-defense when he shot and killed the victim.
Appellant explained that he had gone to the Eagle Bar by himself and left
with Crack and Bean. They posed for photographs and were waiting for the
repeated the question back, and the male reached to
his side. Appellant pulled out a gun and fired approximately five or six
told the police that he sold the gun he used in the shooting. (Notes of
testimony, 7/30/12 at 33-59.)
Officer Edward Eric Nelson of the Firearms Identification Unit examined
the ballistics evidence from the Eagle Bar shooting. He examined five fired
cartridge casings from a .9 mm Luger and four fired cartridge casings from a
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.380 caliber automatic. Officer Nelson testified that at least three guns
were fired. (Notes of testimony, 7/30/12 at 84-112.)
Anthony Williams, an employee at the Eagle Bar, was present at the
shooting and heard shots. (Notes of testimony, 7/25/12 at 36.) Williams
testified that he did not see who fired the weapon. (Id. at 39, 44-46.)
However, Williams provided the police with an out-of-court statement where
he described the shooter. (Id. at 60.) In the signed statement, Williams
averred the shooter was in his mid to late 20s, maybe early 30s, and about
Id.). Williams believed that this person fired the weapon two or
three times. (Id.
and also identified Sherod Benson as the shooter. (Id. at 71.) Williams
stated that the weapon was dark-colored. (Id. at 74.) Williams denied
making the out-of-court statement.
Officer Andrejczak also testified that he compared the ballistics
evidence from the Eagle Bar to the ballistics evidence from the skating rink
and determined that the two fired cartridge cases from the .380 caliber
automatic recovered at the skating rink came from the same .380 caliber
automatic weapon fired at the bar. The ballistics evidence also matched
when he compared the eight fired cartridge cases from the .40 caliber Smith
and Wesson. (Notes of testimony, 7/30/12 at 128-129.)
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PROCEDURAL HISTORY
A jury trial commenced in July of 2012, and the verdict was rendered
on August 1, 2012. Appellant was convicted of crimes charged in four
different informations that were consolidated for a jury trial. At
CP-51-CR-00003973-2011, appellant was convicted of the first degree
murder of Jones, two counts of carrying a firearm on public streets, and
possession of an instrument of crime. At CP-51-CR-0004819-2011,
appellant was found guilty of aggravated assault of Dixon and possession of
an instrument of crime.3 At CP-51-CR-0004817-2011, appellant was found
guilty of attempted murder of Anthony Redguard, aggravated assault of
Redguard, and conspiracy. At CP-51-CR-0004814-2011, appellant was
convicted of aggravated assault regarding Howard.4
Post-sentence motions were denied by operation of law on
December 6, 2012, and this timely appeal followed. Herein, appellant
challenges the sufficiency and the weight of the evidence and presents a
5
In his first argument, appellant contends the evidence was insufficient
to support his convictions for murder, attempted murder, and aggravated
3
Appellant was found not guilty of the attempted murder of Dixon.
4
Co-
5
We note that an additional issue contained in his Rule 1925(b) statement
has not been presented by appellant to our court in his brief; hence, we
deem it to have been abandoned.
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assault. (Id. at 8-12.) We note that appellant does not challenge his
firearms convictions nor does he challenge the aggravated assault of Dixon
at CP-51-CR-0004819-2001. With the exception of boilerplate citation to
case law in reference to the elements of the crimes he challenges, appellant
does not support his argument with citation to case law. When briefing the
various issues that have been preserved, it is an appellant's duty to present
arguments that are sufficiently developed for our review. Commonwealth
v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006). The brief must support the
claims with pertinent discussion, with references to the record and with
citations to legal authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). Citations to
authorities must articulate the principles for which they are cited.
Pa.R.A.P. 2119(b).
citation to the record and supporting case law, we will briefly review the
sufficiency claims. Importantly, however, we observe that in his brief,
appellant has confused the victims associated with the bills of informations
he does challenge. For instance, CP-51-CR-0004817-2011 involved the
attempted murder and aggravated assault of Redguard; the argument in
-51-CR-0004817-2011 presents facts
which appear to be associated with the attempted murder of victim Wells,
f at
11.-12.) Additionally, CP-51-CR-0004814-2011 concerned the aggravated
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assault at this number refers to victim Redguard. (See
11-12; notes of testimony, 7/24/11 at 4.) We will address the arguments in
terms of the victims presented rather than the bills of information cited.
Appellant avers that the Commonwealth did not prove that he acted
with malice or a specific intent to kill. (Id. at 9.) According to appellant,
the incident at the Eagle Bar began when he was verbally accosted by the
victim or his associates. (Id. at 11-12.) He then shot the victims out of
fear and the instinct to protect himself. Appellant also avers that with
regard to aggravated assault of Redguard, he shot the victim while
defending himself and claims that he did not act with malice. (Id. at 12.)
He concludes that the Commonwealth presented insufficient evidence to
support any of the convictions. We disagree.
In reviewing a claim challenging the sufficiency of the evidence to
support the verdict, we:
view[] all the evidence admitted at trial in the light most
favorable to the verdict winner, [and determine if] 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
-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
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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 trier 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. Troy, 832 A.2d 1089, 1092 (Pa.Super. 2003) (citations
omitted).
must prove that a defendant acted with a specific intent to kill, that a human
being was unlawfully killed, that the person accused did the killing, and that
Commonwealth v. Rios, 684 A.2d 1025, 1030
(Pa. 1996), cert denied, 520 U.S. 1231 (1997). This court has held
repeatedly that the use of a deadly weapon on a vital part of a human body
is sufficient to establish the specific intent to kill. Commonwealth v.
Walker, 656 A.2d 90, 95 (Pa. 1995), cert. denied, 516 U.S. 854 (1995).
Additionally, the Commonwealth can prove the specific intent to kill from
circumstantial evidence. Commonwealth v. Brown, 711 A.2d 444 (Pa.
1998).
Section 901 of the Crimes Code defines criminal attempt as follows:
§ 901. Criminal attempt
(a) Definition of attempt.--A person commits an
attempt when, with intent to commit a specific
crime, he does any act which constitutes a
substantial step towards the commission of
that crime.
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18 Pa.C.S.A. § 901(a).
Under the Crimes Code, a person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value
of human life;
....
(4) attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly
weapon[.]
18 Pa.C.S.A. § 2702(a)(1), (4).
We find the evidence sufficient to s
Appellant admitted that he opened fire on the victims at the Eagle Bar,
shooting both victims multiple times. Jones suffered fatal gunshot wounds
in a vital area of his body. This alone is sufficient to establish specific intent
to kill. Walker, supra. Wells was also severely injured after suffering
gunshot wounds. Additionally, testimony was presented that appellant
Despite shooting the victims multiple times, appellant argues the
Commonwealth did not prove he acted with malice because his use of force
was justified. Where there is a claim of self-defense, the Commonwealth
has the burden to prove beyond a reasonable doubt that the killing was not
committed in self-defense. In order to disprove self-defense, the
Commonwealth must prove beyond a reasonable doubt one of the following
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elements: (1) that the defendant did not reasonably believe it was
necessary to kill in order to protect himself against death or serious bodily
harm, or that the defendant used more force than was necessary to save
himself from death, great bodily harm, or the commission of a felony;
(2) that the defendant provoked the use of force; or (3) that the defendant
had a duty to retreat, and that retreat was possible with complete safety.
See 18 Pa.C.S.A. § 505(b)(2); see also Commonwealth v. Hill, 629 A.2d
949, 952 (Pa.Super. 1993). If the Commonwealth establishes any one of
these three elements beyond a reasonable doubt, then the conviction is
insulated from a defense challenge to the sufficiency of the evidence where
self-protection is at issue. See Hill
Commonwealth is required to disprove a claim of self-defense . . . a jury is
not requ
Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990).
Viewing the facts in the light most favorable to the Commonwealth, we
-defense beyond
-serving statement
that he thought the victim was reaching for a gun. However, the jury was
fired multiple shots at the victims or that the victim was the initial
aggressor. T
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relief.
In the alternative, appellant argues that the verdict was not supported
engaged in rampant speculation, conjecture, and surmise.
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
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
not against the weight of the evidence and that a
new trial should be granted in the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
original) (citations omitted).
Appellant essentially claims that his theory that he acted in
self-
Appellant again claims that the victim was the aggressor. Appellant
essentially asks this court to view the evidence in his favor; such an
argument is not pertinent to the weight of the evidence.
As the trial court explained, the jury heard consistent testimony
e extent of the injuries the victims
suffered. The jury resolved those credibility determinations in favor of the
Commonwealth and convicted appellant. The trial court concluded that the
verdict was not against the weight of the evidence, and we must agree.
Accordingly, we find the trial court did not abuse its discretion in rejecting
The final issue presented is whether the trial court erred when it failed
Specifically, he argues that during its summation, the Commonwealth
improperly referred to the threatening presence of the audience in the
courtroom to the witnesses who testified and that those present in the
of testimony, 7/31/12 Vol. II at 72-74.) Defense counsel also objected to
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in the
photographs taken on the night in question with appellant but he did not
testify. The prosecutor commented on his presence in the courtroom
audience. (Id. at 72-74, 96.)
Comments of the prosecutor in summation will not warrant a new trial
unless it is inevitable that they prejudiced the jury, forming in their minds a
fixed bias and hostility toward the defendant so that they could not weigh
the evidence and render a fair verdict. Commonwealth v. Christy, 656
A.2d 877, 885 (Pa. 1995), cert. denied, 516 U.S. 872 (1995). The decision
to grant a mistrial based upon prosecutorial misconduct lies within the sound
discretion of the trial court and will not be reversed unless there has been a
flagrant abuse of discretion. Commonwealth v. La, 640 A.2d 1336, 1347
(Pa.Super. 1994), appeal denied, 655 A.2d 986 (Pa. 1994).
Instantly, the trial court notes that the comments were entirely
consistent with what transpired in the courtroom. (Trial court opinion,
6/7/13 at 20.) Based on our review of the entire closing arguments, it is
their stories changed. Defense counsel repeatedly referred to the
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the people who were present that did not testify. (Notes of testimony,
7/31/12 Vol. 2 at 7-8.)
Additionally, the trial cour
case based solely on their own recollection of the evidence, cured any
potential prejudice. It is well settled that a jury is presumed to follow the
instructions of the court. Commonwealth v. Natividad, 938 A.2d 310,
326 n.9 (Pa. 2007).
the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2014
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