J-S79007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC GALES,
Appellant No. 3167 EDA 2013
Appeal from the Judgment of Sentence entered September 27, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0005861-2007
BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 19, 2014
Eric Gales (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him of second-degree murder and related
offenses.1 We affirm.
The trial court summarized the pertinent facts as follows:
On October 3, 2006, at approximately 9:20 pm, Gary
Roemhild, Kevin Roemhild, Keith Pena, and the decedent
Michael Thierry, were standing on the front steps of 1500
Rosalie Street, where Gary rented an apartment. As
[they] were conversing with each other, [Appellant] and
his [three co-defendants,] all of whom were armed,
approached them.
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1
18 Pa.C.S.A. § 2502(b).
*Retired Senior Judge assigned to the Superior Court.
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Sensing that a robbery was about to occur, Gary
attempted to run inside. He could not open the door
before Isaiah Ransome who was holding a handgun,
grabbed him and demanded that he empty his pockets.
Keith Pena was standing on the steps next to Gary. He
was robbed by Jerry Ransome, who brandished a .32
caliber revolver. Kevin Roemhild and Michael Thierry were
at the bottom of the steps, near the pavement. Appellant
pointed a .22 caliber rifle at Kevin Roemhild’s head during
the robbery. Sean Gordine confronted Michael Thierry.
Gary, Keith and Kevin each gave up their money,
wallets and cell phones. Michael Theirry dropped his keys
and cell phone to the ground and ran. At that point, all
four defendants turned toward Thierry and started
shooting. Thierry was shot in the head and groin and
collapsed near the intersection of Rosalie and Horrocks
Streets. As they fled, the defendants turned their weapons
on the surviving victims and fired multiple gunshots at
them.
Police arrived on the scene within a few minutes. There
they found Thierry lying in the street. Thierry was taken
to the hospital, where he died three days later.
Over the next several months, homicide detectives
interviewed the victims and spoke with several witnesses.
In February of 2007, they arrested [Appellant]. Appellant
waived his Miranda rights and gave a signed confession to
police.
At trial, the surviving victims and several bystanders
who observed the robbery and subsequent shooting
positively identified [Appellant] as one of the shooters.
They described [Appellant] as being short and heavily built
and also testified that he was the only assailant to have
used a rifle. The Commonwealth also presented testimony
from several police officers and the medical examiner,
ballistic evidence linking the defendants to the crime, and
a statement [Appellant] gave to police following his arrest.
The medical examiner testified that the decedent was
shot once in the back of the head and once in the groin.
The wound to the decedent’s head was fatal and came
from a .22 caliber bullet. Although the rifle used by
[Appellant] was never recovered, police found a rifle case
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in [Appellant’s] home while executing a search warrant.
Appellant also admitted to police that he had used a .22
caliber rifle during the robbery. He did not have a license
to carry a firearm.
Trial Court Opinion, 2/11/14, at 2-4 (citations omitted).
The trial court summarized the pertinent procedural history as follows:
The defendants were jointly tried by jury before the
Honorable Carolyn [Engel] Temin. On June 13, 2008, the
jury returned a partial verdict finding all four defendants
not guilty of first degree murder, but deadlocking on the
remaining charges.
A second jury trial was set to commence in May of
2009. Prior to the start of trial, the Commonwealth asked
Judge Temin to reconsider several evidentiary rulings she
had made prior to [Appellant’s] first trial. Specifically, the
Commonwealth sought the introduction of cell phone
records and writings made by one or more of the
defendants that had been ruled inadmissible at the
previous trial. Judge Temin denied the Commonwealth’s
Motion to Reconsider. The Commonwealth appealed Judge
Temin’s ruling to the Pennsylvania Superior Court, which
vacated her Order. On March 3, 2011, defense counsel
filed a Petition for Allowance of Appeal in the Pennsylvania
Supreme Court. This Petition was denied on June 2, 2011.
Appellant’s case was then scheduled for retrial.
On December 14, 2012, at the conclusion of a second
jury trial, the jury found [Appellant] guilty of second
degree murder, four counts of robbery (F-1), three counts
of aggravated assault (F-1), criminal conspiracy,
possession of an instrument of crime and violating §§ 6106
and 6108 of the Uniform Firearms Act.
[Judge Temin retired prior to sentencing Appellant and
the case was reassigned to the Honorable Benjamin
Lerner, S.J.] On September 27, 2013, this court
sentenced [Appellant] to a prison term of fifty (50) years
to life on the second degree murder bill, and concurrent
prison terms of ten (10) to twenty (20) years on each of
the robbery and aggravated assault bills and three-and-
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one-half (3½) to seven (7) years on the § 6106 bill. No
further penalty was imposed on the remaining bills.
Appellant thereafter filed post-sentence motions, which
were denied by this court on October 7, 2013. This timely
appeal followed.
Trial Court Opinion, 2/11/14, at 1-2 (footnotes omitted). Both Appellant and
the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
I. Is [Appellant] entitled to an arrest of judgment on the
charge of Murder in the Second Degree where the evidence
is insufficient to sustain the verdict?
II. Is [Appellant] entitled to a new trial where the verdict is
not supported by the greater weight of the evidence?
III. Is [Appellant] entitled to a new trial as the result of
court error when the court permitted a homicide detective
to testify as to [Appellant’s] prior contacts with the
Juvenile System, and all where said testimony was grossly
irrelevant, should have been precluded by Rule of Evidence
403?
IV. Should [Appellant] be remanded to the Sentencing
Court for a new sentencing hearing where the Sentencing
Court abused its discretion in sentencing [Appellant] to a
warehouse term which amounted to a life sentence?
Appellant’s Brief at 3.
In his first two issues, Appellant argues that his conviction for second-
degree murder is against the sufficiency and weight of the evidence. In his
argument, Appellant conflates these two issues. See Appellant’s Brief at 8-
11. Our Supreme Court has summarized:
[I]t is necessary to delineate the distinctions between a
claim challenging the sufficiency of the evidence and a claim
that challenges the weight of the evidence. The distinction
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between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted,
would preclude retrial under the double jeopardy provisions
of the Fifth Amendment to the United States Constitution,
and Article I, Section 10 of the Pennsylvania Constitution,
whereas a claim challenging the weight of the evidence if
granted would permit a second trial.
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Where the
evidence offered to support the verdict is in contradiction to
the physical facts, in contravention to human experience
and the laws of nature, then the evidence is insufficient as a
matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable
to the verdict winner giving the prosecution the benefit of
all reasonable inferences to be drawn from the evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence concedes that there
is sufficient evidence to sustain the verdict. Thus, the trial
court is under no obligation to view the evidence in the light
most favorable to the verdict winner. An allegation that the
verdict is against the weight of the evidence is addressed to
the discretion of the trial court. A new trial should not be
granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at
a different conclusion. A trial judge must do more than
reassess the credibility of the witnesses and allege that he
would not have assented to the verdict if he were a juror.
Trial judges, in reviewing a claim that the verdict is against
the weight of the evidence, do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations
and footnote omitted).
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Given the above distinctions, we first address Appellant’s sufficiency
challenge. Our standard of review is well settled:
The standard we apply in reviewing the sufficiency of the
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 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 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. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[finder] 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. Jones, 886 A.2d 689, 704 (Pa. Super. 2005), appeal
denied, 897 A.2d 452 (Pa. 2006) (citations omitted).
“A criminal homicide constitutes murder of the second degree when it
is committed while [the] defendant was engaged as a principal or an
accomplice in the perpetration of a felony.” 18 Pa.C.S.A. § 2502(b).
“Perpetration of a felony” is defined as: “The act of the defendant engaging
in or being an accomplice in the commission of, or an attempt to commit, or
flight after committing, or attempting to commit robbery, rape, or deviate
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sexual intercourse by force or threat of force, arson, burglary or
kidnapping.” 18 Pa.C.S.A. § 2502(d).
In support of his sufficiency challenge, Appellant asserts that the
victim’s murder did not occur during the “perpetration of a felony,” because
“the evidence indicates that the shooting in this matter was separate and
apart and not in furtherance of the felony in question.” Appellant’s Brief at
6. According to Appellant, “[i]n essence, the robbery had taken place and
was completed.” Id. at 9.
In rejecting Appellant’s sufficiency challenge, the trial court explained:
The decedent was shot and killed during the
commission of a robbery. Moreover, ballistics evidence
definitely proved that the fatal shot – a .22 caliber bullet to
the back of the decedent’s head – came from the gun that
[A]ppellant used during the robbery. Appellant (and each
of his accomplices) is guilty of second degree murder.
Trial Court Opinion, 2/11/14, at 8-9. Our review of the record amply
supports the trial court’s conclusion that the decedent was shot during the
commission of the robbery detailed supra. We categorically reject as
unsupported by the record Appellant’s claim that “[the decedent] was killed
in a burst of anger as he had the audacity to remove himself from the scene
and perhaps, without coming across with too many valuables.” Appellant’s
Brief at 9. Appellant’s argument is impertinent.
As detailed by the trial court, the evidence presented by the
Commonwealth overwhelmingly established that Appellant shot the decedent
during the commission of the robbery. Moreover, even if, as Appellant
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suggests, the robbery had ended and the decedent was shot shortly
thereafter, his sufficiency challenge still fails. See, e.g., Commonwealth
v. Knox, 50 A.3d 749, 757 (Pa. Super. 2012) (holding evidence was
sufficient to support juvenile defendant’s second-degree murder conviction
when co-conspirator fatally shot the victim as the victim fled from the
robbery). Thus, Appellant’s first issue is without merit.
Appellant next challenges the weight of the evidence supporting his
convictions. “[A]ppellate review of a weight of the evidence claim normally
involves examining the trial court’s exercise of discretion in its review of the
fact-finder’s determinations[.]” Commonwealth v. Ross, 856 A.2d 93, 99
(Pa. Super. 2004) (citation omitted). This Court has summarized:
The determination of the weight of the evidence
exclusively is within the province of the fact-finder, who
may believe all, part, or none of the evidence. A new trial
should be awarded when the jury’s verdict is so contrary to
the evidence as to shock one’s sense of justice and the
award of a new trial is imperative so that right may be
given another opportunity to prevail. In this regard, the
evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.
Ross, 856 A.2d at 99 (citations omitted).
The trial court found no merit to Appellant’s weight claim. See Trial
Court Opinion, 2/11/14, at 4-9. We agree. In arguing to the contrary,
Appellant improperly repeats his sufficiency challenge: “Rather, the greater
weight of the evidence supports the finding that there was indeed a robbery
and a shooting, but that the shooting did not happen necessarily in the
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course of the robbery.” Appellant’s Brief at 6. As noted above, a proper
challenge to the weight of the evidence concedes its sufficiency. Widmer,
supra. In finding Appellant guilty, the jury clearly believed the
Commonwealth’s evidence offered to establish Appellant’s guilt of second-
degree murder. Because the evidence presented was not “tenuous, vague
and uncertain,” the trial court did not abuse its discretion in denying
Appellant’s post-sentence motion for a new trial. Ross, 856 A.2d at 99.
Thus, Appellant’s argument in support of his weight claim is inapt, and does
not merit relief.
In his two remaining claims, Appellant challenges an evidentiary ruling
by the trial court, and the discretionary aspects of his sentence. Appellant
did not raise these claims in his Pa.R.A.P 1925(b) statement. Thus, because
the trial court did not address the merits of the claims, and the issues are
being raised for the first time on appeal, they are waived. See generally,
Pa.R.A.P. 302(a); Commonwealth v. Rolan, 964 A.2d 398 (Pa. Super.
2008).
In sum, because Appellant’s issues are either meritless or not
preserved for appeal, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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