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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
HENRY DION WILLIAMS, :
:
Appellant : No. 2014 WDA 2013
Appeal from the Judgment of Sentence entered on November 26, 2013
in the Court of Common Pleas of Washington County,
Criminal Division, No. CP-63-CR-0001527-2012
BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 26, 2015
Henry Dion Williams (“Williams”) appeals from the judgment of
sentence entered following his conviction of first-degree murder, persons not
to possess firearms and firearms not to be carried without a license. 1 We
affirm.
In its Opinion, the trial court set forth the relevant facts underlying the
instant appeal, which we adopt and incorporate herein by reference. See
Trial Court Opinion, 7/3/14, at 4-9.
Following a jury trial, Williams was convicted of the above-described
charges. Thereafter, for his conviction of first-degree murder, the trial court
sentenced Williams to life in prison, ordered that Williams pay restitution to
the victim’s mother in the amount of $6,685, and required Williams to pay
1
18 Pa.C.S.A. §§ 2502(a), 6105, 6106.
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the costs of prosecution. For his conviction of persons not to possession
firearms, the trial court imposed a concurrent prison term of three to six
years. Williams’s conviction of carrying a firearm without a license merged
with his other firearms conviction at sentencing. Williams timely filed a
Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement
of matters complained of on appeal.
On appeal, Williams raises the following claims for our review:
I. Did the trial court err in denying [Williams’s] Motion to
Dismiss under Pa.R.C[rim.]P., Rule 600?
II. Did the trial court err by allowing a Commonwealth
witness, [Sergeant] Ronald Aiello [“Sergeant Aiello”], to
present testimony of a prior consistent statement provided
to him by another Commonwealth witness, Kayla
Cunningham [“Cunningham”], after that witness had
concluded her testimony?
III. Did the trial court err by allowing a Commonwealth
witness, Lt. Daniel Stanek [“Lieutenant Stanek”], to
present hearsay testimony regarding information provided
to him by [Williams’s] mother, Valerie Clark [“Clark”],
when that witness did not testify and such testimony by
[Lieutenant] Stanek was beyond the scope of cross[-
]examination?
IV. Did the trial court err by allowing a Commonwealth
witness, [Lieutenant] Stanek, to present testimony[,]
which was speculative in nature[,] regarding the
truthfulness and accuracy of the testimony of the
Commonwealth’s witnesses, [] Cunningham and April Lash
[“April”]?
V. Did the trial court err by allowing a Commonwealth
witness, [Lieutenant] Stanek, to present testimony
regarding gunshot residue evidence when said witness was
not qualified as an expert in the field of gunshot residue
evidence?
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VI. Did the trial court err by denying [Williams’s] Motion to
exclude[,] for any purposes[,] the statements of an eye
witness, Desiree Wilson [“Wilson”], which statements were
not provided to [Williams] in response to his request for
discovery materials until the date before the witness was
scheduled to testify?
VII. Did the trial court err and deny [Williams] a fair trial and
due process by granting to the Commonwealth the right to
use in rebut[t]al, if it chose to so use, the statements of an
eye witness, [] Wilson, when those statements were not
provided to [Williams] in response to his request for
discovery materials[,] and which statements effected
[Williams’s] decision whether or not to testify at trial?
VIII. Did the Commonwealth present sufficient evidence to
sustain the verdict of guilty for each count, including:
criminal homicide[-]murder of the first degree, possession
of a firearm prohibited, and firearms not to be carried
without a license?
IX. Was the verdict of guilty entered against the weight of the
evidence on each count, including: criminal homicide[-
]murder of the first degree, possession of a firearm
prohibited, and firearms not to be carried without a
license?
Brief for Appellant at 4-5.
Williams first claims that the trial court improperly denied his Motion to
Dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600. Id. at 11.
Williams points out that Lieutenant Stanek filed the Criminal Complaint on
May 24, 2012, but Williams was not arrested and incarcerated until June 20,
2012. Id. Williams asserts that the Commonwealth did not bring him to
trial until September 9, 2013, “which is more than 365 days from the date of
the filing of the [C]riminal [C]omplaint.” Id. According to Williams, at no
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time did he request a continuance nor was he unavailable to proceed to trial.
Id. at 12. Williams further argues that the pre-arrest delay of 27 days
caused him substantial prejudice, “as he had not been to trial within the
time limits of Rule 600.” Id. at 13. Williams contends that the pre-arrest
delay of 27 days is not excludable from the Rule 600 calculation, and that
the Commonwealth did not exercise due diligence during this delay. Id.
We first set forth our standard and scope of review:
In evaluating Rule [600] issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused.
The proper scope of review is limited to the evidence on the
record of the Rule [600] evidentiary hearing, and the findings of
the [trial] court. An appellate court must view the facts in the
light most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this Court
is not permitted to ignore the dual purpose behind Rule [600].
Rule [600] serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those
contemplating it. However, the administrative mandate of Rule
[600] was not designed to insulate the criminally accused from
good faith prosecution delayed through no fault of the
Commonwealth.
So long as there has been no misconduct on the part of the
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Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule [600] must be construed in a
manner consistent with society’s right to punish and deter crime.
In considering [these] matters . . . courts must carefully factor
into the ultimate equation not only the prerogatives of the
individual accused, but the collective right of the community to
vigorous law enforcement as well.
Commonwealth v. Horne, 89 A.3d 277, 283-84 (Pa. Super. 2014)
(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super.
2007) (en banc)).
In its Opinion, the trial court addressed Williams’s claim and concluded
that it lacks merit. See Trial Court Opinion, 7/3/14, at 9-16. The trial
court’s findings are supported in the record and its legal conclusions are
sound. See id. Discerning no abuse of discretion by the trial court in
rejecting Williams’s claim as without merit, we affirm on the basis of the trial
court’s Opinion with regard to Williams’s Rule 600 claim. See id.
In his second issue, Williams argues that the trial court improperly
admitted the testimony of Sergeant Aiello, regarding the prior consistent
statements made by Cunningham. Brief for Appellant at 15. Williams
asserts that Sergeant Aiello’s testimony about statements made by
Cunningham “is hearsay and served to improperly bolster [Cunningham’s]
testimony.” Id. at 16.
“An appellate court’s standard of review of a trial court’s evidentiary
rulings, including rulings on the admission of hearsay …, is abuse of
discretion.” Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014).
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“Hearsay means a statement that ... the declarant does not make
while testifying at the current trial or hearing; and ... a party offers in
evidence to prove the truth of the matter asserted in the statement.”
Pa.R.E. 801(c). “Hearsay is not admissible except as provided by [the
Pennsylvania Rules of Evidence], by other rules prescribed by the
Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.
Pennsylvania Rule of Evidence 613(c) addresses the admissibility of a
prior consistent statement by a witness as follows:
Evidence of a prior consistent statement by a witness is
admissible for rehabilitation purposes if the opposing party is
given an opportunity to cross-examine the witness about the
statement, and the statement is offered to rebut an express or
implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty
memory and the statement was made before that which
has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the
witness has denied or explained, and the consistent
statement supports the witness’ denial or explanation.
Pa.R.E. 613(c).
In its Opinion, the trial court addressed Williams’s claim and concluded
that it lacks merit. See Trial Court Opinion, 7/3/14, at 16-18. Upon review,
we discern no abuse of discretion or error by the trial court. Accordingly, we
adopt the trial court’s analysis, and affirm based upon the rationale set forth
in the trial court’s Opinion with regard to this claim. See id. We
additionally note the following.
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Even if the trial court improperly had admitted Sergeant Aiello’s
testimony, we conclude that such error would be harmless. “Where an error
is deemed to be harmless, a reversal is not warranted.” Commonwealth v.
Kuder, 62 A.3d 1038, 1053 (Pa. Super. 2013). Harmless error exists where
(1) the error did not prejudice the defendant or the prejudice
was de minimis; (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence of guilt was
so overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Id. (citation omitted).
Our review discloses that Sergeant Aiello’s testimony regarding his
interview of Cunningham is merely cumulative, and caused Williams no
prejudice. During cross-examination, defense counsel questioned
Cunningham regarding whether she saw anyone in the parking lot upon
exiting Pickle’s Bar:
Q. [Defense counsel]: As you and [April] were going out of the
bar at Pickle’s to get in your car to go to [Taco] Bell, did you
stop and talk to anybody?
A. [Cunningham]: No. Well, my uncle, on our way out of the
bar, he spoke to us and then he came out and said something to
us and he went back in. But other than that, no.
Q. You guys turned around to answer him and then continued at
that point in time?
A. Yes.
Q. I believe you said you didn’t see anybody else outside at that
point in time?
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A. No.
Q. You proceed across the street, you said you walked in front
of your vehicle, between your vehicle and another vehicle?
A. Yes.
…
Q. Was there any reason why you chose to drive your vehicle
instead of April driving hers?
A. No.
Q. You did not open April’s door first?
A. No.
Q. You went around and started to open yours?
A. I didn’t even get to open mine, no.
Q. Did you get to your side of the car?
A. I did, but I didn’t get to open my door.
Q. Because you heard a noise?
A. Yes.
Q. Which I believe you characterized as a shot?
A. Yes.
Q. Prior to hearing the shot[,] you were not looking down the
street, correct?
A. No. I looked at them whenever I walked out of the bar, but I
was looking straight ahead and then I turned and looked.
Q. When you heard this first shot you started to run at that
point?
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A. No. I turned and looked because I thought it was fireworks,
that’s what it sounded like. Then I seen sparks come out from
two other[s] and I knew right then and there and I seen the guy
grab his chest and he hit the ground. The shooter looked, just
looked over at me because I screamed[,] and started backing up
in the parking lot.
Q. The person you described as the shooter started backing up,
walking backwards?
A. Yes.
Q. At that point you then run across the street, you and April
run across the street and go to Pickle’s to go inside?
A. Yes.
Q. As you and April are running back to Pickle’s[,] did you see
anyone else in your pathway?
A. No.
Q. You did not see Mark Jones at that point?
A. No.
Q. I believe it was your testimony that you did not see Mark
Jones outside at all?
A. No.
Q. Prior to entering into Pickle’s bar after you notice this person
backing through the parking lot, did you stay outside long
enough to see that person actually go all the way through the
parking lot?
A. After so far back[,] he was like out of sight as we ran into the
bar just to protect ourselves as well.
Q. I guess what I’m asking you is, you saw the person backing
up into the parking lot to a point in time where you could not see
anybody?
A. Right.
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Q. One because it was dark or because you were running into
Pickle’s bar and not looking anymore?
A. No. Once I seen, like heard the shots and then I looked and
seen like he was making contact with me as he was backing up,
I ran into the bar and then that was it.
Q. So, really other than these couple of steps back up you don’t
know where this person you described as the shooter went after
that?
A. No.
Q. So he may have continued all the way back into the alley run
left down Ewing, may have run right down Ewing, is that
correct?
A. Right.
Q. The person that you said was the shooter, after you ran back
into Pickle’s[,] did you ever see this person again that evening?
A. No.
N.T., 9/2-13/13, at 189-93. On re-direct examination, the prosecutor
questioned Cunningham about her observations upon leaving the bar:
Q. [The Commonwealth]: In Commonwealth’s [Exhibit] 4[, a
videotape,] you and April are about to go out [of] the door. …
[A]s you go out you are first and it appears you’re looking back
into the bar?
A. [Cunningham]: Yes.
Q. Then you turn to your right to go across the street?
A. Yes.
Q. Did you at any time look to the left to see who was to the left
of the door at Pickle’s?
A. No.
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Q. As you went across the street[,] did you turn around to see
what April was doing behind you?
A. No.
Q. You don’t know if April came in contact with anybody who
might have been on the left side of the door?
A. No.
Id. at 192-93.
At the close of redirect examination, and upon no further questions by
defense counsel, the trial court questioned Cunningham as follows:
Q. [THE COURT]: … I just want to clarify. You said you saw the
sparks fly out?
A. [Cunningham]: Yes.
Q. Did you see the gun?
A. I did not see the gun personally, but the way he was holding
on his side[,] I could tell—
Q. You could see his arm?
A. Yes.
Q. And you saw sparks fly from there?
A. Yes.
Q. And that’s the second two?
A. Right.
Q. Not the first one?
A. Yes.
Id. at 193-94.
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The Commonwealth next called Sergeant Aiello as a witness. The
Commonwealth questioned Sergeant Aiello about his interview of
Cunningham at the crime scene:
Q. [The Commonwealth]: Did you [] have the opportunity to
interview witnesses?
A. [Sergeant Aiello]: Ms. Cunningham.
Q. Did you take a written statement or just kind of your own
interview at first?
A. Just my own interview.
Q. Was that reduced to a report?
A. Yes sir.
Q. With regard to her statement to you[,] how did she describe
the shooter?
[Defense counsel]: Objection, Your Honor. Ms. Cunningham
has testified. She could have given that information on direct
testimony[,] as it pertains to it and now it would be hearsay.
[The Commonwealth]: We submit that inasmuch as she has
testified to prior consistent statements, she has been subject
[to] cross-examination.
[Defense counsel]: Your Honor, she has not seen this officer’s
report. She has not initialed it and indicated that it is in fact
what she told the officer, so it would not be admissible at this
point in time.
THE COURT: The Officer can give [Cunningham’s] testimony as
part of his report to the extent it’s consistent or inconsistent.
I’m going to overrule the objection.
Q. [The Commonwealth]: How did she describe the shooter?
A. [Sergeant Aiello]: She states that he was wearing a black
shirt and flat billed cap.
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Q. Did she give any description of the event in terms of the
weapon being pointed by that shooter?
A. Yes. She said that there was a handgun and she saw sparks
coming out of it.
Q. Did she say what she did after she heard these shots?
A. She stated that she heard three shots and she screamed
when it happened.
Q. Did she say what she then did?
A. Yes. She said that the individual looked at her, the other
male fell down close to the sidewalk and street and then she ran
inside the bar, to get inside the bar.
Id. at 195-97.
Sergeant Aiello’s testimony regarding his interview with Cunningham
was cumulative, and any prejudice resulting from the admission of this
evidence was, at best, de minimus. See Kuder, 62 A.3d at 1053. Under
these circumstances, even if the trial court had erred in admitting Sergeant
Aiello’s testimony regarding Cunningham’s statements, Williams is not
entitled to relief. See id.
In his third issue, Williams claims that the trial court improperly
admitted hearsay testimony by Lieutenant Stanek regarding statements
made by Williams’s mother, Clark. Brief for Appellant at 17. According to
Williams, Lieutenant Stanek testified that he had questioned Clark regarding
a vehicle that was registered to her being found at the scene of
the homicide, regarding who had use of that vehicle, regarding
the fact that a warrant for the arrest of [Williams] for that
homicide had been issued, and implying that she had
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communicated this information to [Williams,] resulting in a delay
in his arrest for 27 days from the date of the incident.
Id. Williams asserts that the trial court improperly admitted this testimony,
when Clark was available to testify and was present in the courtroom during
Lieutenant Stanek’s testimony. Id. at 18. Williams further asserts that the
trial court improperly admitted the redirect testimony of Lieutenant Stanek,
which exceeded the scope of cross-examination. Id. at 17.
In its Opinion, the trial court addressed Williams’ claim and concluded
that it lacks merit. See Trial Court Opinion, 7/3/14, at 18-23. We agree
with the sound reasoning of the trial court, as stated in its Opinion, and
affirm on this basis as to Williams’s third issue. See id.
In his fourth issue, Williams claims that the trial court improperly
permitted Lieutenant Stanek “to present testimony which was speculative in
nature regarding the truthfulness and accuracy” of testimony provided by
Cunningham and April. Brief for Appellant at 19. Williams claims that the
trial court improperly permitted Lieutenant Stanek to testify as to whether
he would be surprised “that various things could not be seen in the
surveillance videos.” Id. In support, Williams offers the following
argument:
[T]he admission of such testimony was in error, and was
extremely prejudicial to [Williams]. This speculative testimony
by [Lieutenant] Stanek related to the actions taken or which
may have been taken by the Commonwealth’s “eye witnesses[,]”
[] Cunningham and [April,] and as such was an attempt to
bolster the truthfulness and accuracy of their testimony given
prior to [Lieutenant] Stanek’s testimony.
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Id.
The trial court addressed this claim in its Opinion and concluded that it
lacks merit. See Trial Court Opinion, 7/3/14, at 23-25. Upon our review of
the record, we agree with the sound reasoning of the trial court, as set forth
in its Opinion, and affirm on this basis. See id.
In his fifth issue, Williams claims that the trial court improperly
admitted the testimony of Lieutenant Stanek regarding gunshot residue
evidence, “when said witness was not qualified as an expert in the field of
gunshot residue evidence[.]” Brief for Appellant at 20. Williams challenges
the admission of Lieutenant Stanek’s explanation for not submitting swabs of
the victim’s hands, taken during the autopsy, to the Pennsylvania State
Police Crime Lab for gunshot residue testing. Id. According to Williams,
Lieutenant Stanek’s testimony was “in the nature of an expert’s opinion[,] as
it implies that even if the swabs were sent to the Lab for gunshot residue
testimony, the experts at the Lab would have found the swabs to contain
nothing of evidentiary value.” Id. at 21. Williams argues that such
evidence by a lay witness is based on conjecture and speculation, and,
therefore, is inadmissible. Id.
In its Opinion, the trial court concisely addressed this claim and
concluded that it lacks merit. See Trial Court Opinion, 7/3/14, at 25-26.
We agree with the sound reasoning of the trial court, as set forth in its
Opinion, and affirm on this basis. See id.
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In his sixth and seventh issues, Williams claims that the trial court
improperly admitted, as rebuttal, statements made by Wilson, where the
Commonwealth had failed to provide the defense with Wilson’s statements
during discovery. Brief for Appellant at 25. Williams states that on the
morning of the third day of trial, the Commonwealth advised defense
counsel of its intention to call Wilson as a witness. Id. at 26. Williams
claims that his counsel did not have sufficient opportunity
to prepare for a proper cross[-]examination of the witness,
particularly when it became known to the defense that the
witness, [] Wilson, was claiming that another individual, Angela
Butler [a.k.a.] Angela Odum, was in the car with her and
[Williams] on the night of the incident[,] after the incident
occurred[,] and corroborate her testimony.
Id. at 26-27. The trial court ultimately granted a defense Motion to preclude
Wilson’s testimony, permitting her testimony only on rebuttal. Id. at 27.
Notwithstanding, Williams claims that the Commonwealth violated
Pa.R.Crim.P. 573, and that its violation had “a chilling effect on [Williams’s]
decision whether or not to testify at his trial, and resulted in a violation of
his constitutional right to due process and a fair trial.” Id.
A trial court possesses discretion in fashioning an appropriate remedy
for a violation of the rules of discovery. Commonwealth v. Smith, 955
A.2d 391, 394 (Pa. Super. 2008). A trial court’s ruling in this regard will not
be reversed absent an abuse of discretion. Id.
In its Opinion, the trial court provided a comprehensive summary of
the circumstances underlying the Commonwealth’s failure to provide
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information regarding Wilson, its interpretation and application of Rule
573(B)(1)(b), and its reasons for granting Williams’s Motion, but permitting
the Commonwealth to present Wilson as a rebuttal witness. See Trial Court
Opinion, 7/3/14, at 26-34. Upon our review, we find no abuse of discretion
by the trial court, and affirm on the basis of its Opinion with regard to this
claim. See id.
In his eighth issue, Williams argues that the evidence is insufficient to
sustain his convictions. Brief for Appellant at 28. Williams argues that the
evidence proved only that he was present at the same bar as the victim; he
and the victim left the bar at about the same time; and Williams was in the
general vicinity at the time of the shooting. Id. Williams directs our
attention to evidence that he was not found in the vicinity after the shooting,
and that only his mother’s vehicle was found at the scene. Id. Williams
further points out that the Commonwealth presented no scientific evidence
connecting him to the firearm allegedly used in the shooting. Id. at 30.
Finally, Williams points out discrepancies in the testimony presented by
three Commonwealth witnesses. Id.
In reviewing a challenge to the sufficiency of the evidence, we
evaluate the record “in the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be drawn from the
evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.
2009) (citation omitted).
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Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Id. (citation and quotation marks omitted). We further are cognizant that a
defendant’s presence at the scene of the crime is not sufficient to establish
his complicity in that crime. Commonwealth v. Toritto, 67 A.3d 29, 32
(Pa. Super. 2014).
The trial court addressed Williams’s challenge to the sufficiency of the
evidence in its Opinion, and concluded it lacks merit. See Trial Court
Opinion, 7/3/14, at 36-38. We agree with the sound reasoning of the trial
court, and affirm the trial court’s rejection of this claim on the basis of the
reasoning stated in its Opinion. See id.
Finally, Williams challenges the verdict as against the weight of the
evidence. Brief for Appellant at 33. Williams claims that the
Commonwealth’s evidence established only that he and the victim “were
both in the same bar during the same night, that they both left the bar at
about the same time, and [were] in the same general vicinity when the
victim sustained several gunshot wounds to his face and chest[,] which
resulted in the victim’s death on said date.” Id. at 34. Williams argues that
the Commonwealth presented no evidence showing Williams as possessing a
firearm concealed or visibly possessed on his person. Id. Williams points to
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discrepancies regarding what transpired prior to the shooting, and that the
evidence permits more than one logical conclusion. Id. at 35.
In its Opinion, the trial court addressed Williams’s claim and concluded
that it lacks merit. See Trial Court Opinion, 7/3/14, at 34-36. We agree
with the trial court’s sound reasoning, and discern no abuse of discretion in
its rejection of Williams’s claim. See id. Accordingly, we affirm on the basis
of the reasoning set forth in the trial court’s Opinion with regard to this
claim. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2015
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( ( Circulated 02/10/2015 11:36 AM
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
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