J-S45026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN AHMAD CLARK
Appellant No. 2005 MDA 2014
Appeal from the Judgment of Sentence of June 23, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002723-2013
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED JULY 21, 2015
Justin Ahmad Clark appeals from the judgment of sentence entered on
June 23, 2014. We affirm.
In this case, Clark was charged with criminal homicide, 18 Pa.C.S.A.
§ 2501; attempted criminal homicide, 18 Pa.C.S.A. § 901 (§ 2501); and
carrying a firearm without a license, 18 Pa.C.S.A. § 6106. The trial court
summarized the basic factual history of this case as follows:
[On March 9, 2013,] Rob Burris was walking near the
intersection of Mayflower and 14th Street, in the Allison Hill
section of the City of Harrisburg, when he was struck and killed
by a bullet to his head. Jonathan Ramsey (“Ramsey”) testified
that Clark asked him for a ride to Vernon Street in Harrisburg,
Pennsylvania, because he wanted to confront an individual
named Bennie Chisolm. Ramsey drove with Clark in the front
passenger seat to 14th and Vernon, at which point Clark
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S45026-15
indicated that he saw an individual known to associate with
Chisolm, nicknamed “Mano.” Clark told Ramsey to “spin the
block,” and Ramsey proceeded to drive down 14th Street, turn
onto Market and then turn onto Mayflower. While Ramsey was
driving around the block he saw Clark retrieve a gun from his
clothing. Clark instructed Ramsey to pull up at 14th and
Mayflower and to stop. Clark then rolled down the window and
started shooting towards a group of people. Rob Burris suffered
a gunshot wound to the back of his head. Based on the location
of the wound and the bullet’s trajectory, Rob Burris, most likely,
died instantaneously.
Trial Court Memorandum and Order (“T.C.M.”), 10/10/2014, at 1-2 (citations
to record omitted).
Clark was two weeks shy of his eighteenth birthday at the time of the
shooting. A jury trial commenced on April 22, 2014.
At trial, Chisholm testified that he and Clark had gotten into a physical
fight late in the summer of 2012. Notes of Testimony (“N.T.”), 4/21-
25/2014, at 53-55. Chisolm testified that he and Clark had a verbal run-in
in February 2013 when “[n]o guns were drawn, they were just shown.” Id.
at 60-63. Later, Chisholm shot at Clark’s brother with a 20-gauge sawed-off
shotgun after striking Clark in the head with the same gun. Id. at 64-72.
On March 9, 2013, Chisholm was with Burris and others when the shots
were fired from behind him. Id. at 80-82.
Aja Lewis knew Chisholm, Clark, Burris, and Clark’s brother. Id. at
98-102. Lewis testified that she saw Clark in the passenger seat of a car on
the day Burris was killed. Id. at 103-04. Lewis called Chisholm because she
knew he was in the area and she suspected that Clark was going after
-2-
J-S45026-15
Chisholm. Id. at 105-06. About twenty minutes later, Lewis learned that
Burris had been killed. Id. at 107.
Ramsey testified that he knew both Chisholm and Clark and knew
about the problems between them. Id. at 171-76. Ramsey testified that he
was driving when Clark stopped him and asked for a ride to go fight
Chisholm. Id. at 186-87. At that point, Ramsey did not know Clark had a
gun. Id. at 194. Clark told Ramsey to pull the car over, and then Clark
rolled down the window and started shooting into a group of people. Id. at
195-96. Ramsey drove home with Clark and Clark decided that they should
go to a basketball game to establish an alibi. Id. at 197-99. They saw
Devacio McGowan, picked him up, and then switched to Clark’s car. Id. at
101-02. McGowan told them that someone had been shot so they drove
over to see what happened. Id. at 205. While they were watching the
scene, Clark told McGowan that he was the shooter. Id. at 206-07.
The three men then went to the basketball game. Id. at 208. At the
basketball game, they found out that Burris had been killed. Id. at 209.
After the game, Clark dropped McGowan and Ramsey off, and told Ramsey
that he was going to Lancaster. Id. at 211-12.
McGowan confirmed that he went to a basketball game with Ramsey
and Clark. Id. at 286. Because McGowan’s testimony differed from his
prior statement to police, McGowan read portions of that statement in which
he told police that Clark admitted to the shooting to the jury. Id. at 303,
305. However, McGowan stated that he was high when he gave the
-3-
J-S45026-15
statement and had no memory of it. Id. at 301-04. The Commonwealth
then played McGowan’s recorded statement to the police for the jury. Id. at
311.1
Clark testified in his defense that he did not shoot Burris, but admitted
that he disposed of the gun that was used in the shooting. Id. at 473.
Clark testified that he was at the basketball game when his brother
approached him and asked Clark to dispose of a gun. Id. at 474-76. Clark
also said that his brother was carrying Clark’s phone at the time of the
shooting. Id. at 478. Clark testified that, after he received the gun from his
brother, he drove into Harrisburg to sell drugs and get some money, and
then he drove to Lancaster. Id. at 479-81. Clark claimed that he sold the
gun to someone named Kurt in Lancaster. Id. at 483-84.
On April 25, 2014, the jury found Clark guilty of first degree murder,
attempted murder, and carrying a firearm without a license. The trial court
requested a pre-sentence investigation report (“PSI”) and a sentencing
memorandum from Clark and the Commonwealth. On June 23, 2014, the
trial court sentenced Clark to life without parole on the homicide conviction.
____________________________________________
1
The Commonwealth also presented the testimony of various police
officers who detailed the circumstances of the arrests of and statements
from the various individuals involved, testimony regarding ballistics and the
recovery of the gun used in the shooting, testimony regarding Clark’s
cellphones and the discovery of information that showed the location of the
phones, and medical testimony about the cause and manner of Burris’
death.
-4-
J-S45026-15
Clark also was sentenced to twenty to forty years in prison for attempted
homicide and three to six years’ incarceration for the carrying a firearm
without a license conviction. All sentences were ordered to run concurrently.
On June 26, 2014, Clark timely filed a post-sentence motion in which
he challenged the discretionary aspects of his sentence and the weight of the
evidence. After briefing, on October 8, 2014, the trial court heard argument
on the motion. On October 10, 2014, the trial court denied the motion. No
direct appeal was filed.
On November 12, 2014, Clark filed a petition for relief pursuant to the
Post Conviction Relief Action (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. In his
petition, Clark sought reinstatement of his direct appeal rights, alleging that
his counsel was per se ineffective for failing to file an appeal. The
Commonwealth did not object to reinstatement of Clark’s appellate rights.
On November 18, 2014, the PCRA court granted Clark’s PCRA petition.
On November 25, 2014, Clark timely filed a notice of appeal. On
December 1, 2014, the trial court ordered Clark to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Clark
timely complied.
Clark raises three issues for our review:
I. Whether the trial court abused its discretion in refusing to
allow Commonwealth’s Exhibit 47 – a prison note written
by [Clark] – and Defense Exhibit 2 – a witness’ recantation
letter – to go out with the jury during its deliberations?
II. Whether the trial court erred in denying [Clark’s] Post-
Sentence Motion where [Clark’s] convictions were against
-5-
J-S45026-15
the weight of the evidence so as to shock one’s sense of
justice as [Clark] was never shown to have committed the
crimes alleged?
III. Whether the trial court erred in denying [Clark’s] Post-
Sentence Motion where [Clark’s] sentence was excessive
and unreasonable as the trial court failed to consider
statutorily prescribed factors pursuant to 18 Pa.C.S.A.
[§] 1102.1(d)?
Clark’s Brief at 6.
Clark first challenges the trial court’s decision not to allow certain
exhibits to be viewed by the jury during its deliberations. Clark asserts that
the trial court erred when it did not allow the jury to take with it during
deliberations a note written by Clark to Ramsey and a letter purportedly
written by Ramsey in which he recanted his statements about Clark’s
involvement in the crime. Clark argues that both exhibits speak to Clark’s
and Ramsey’s credibility, which were paramount in this case. Clark’s Brief at
16-18.
We review a trial court’s decision regarding which exhibits go with a
jury for an abuse of discretion. Commonwealth v. Bango, 685 A.2d 564,
565 (Pa. Super. 1996). By rule, “the jury may take with it such exhibits as
the trial judge deems proper.” Pa.R.Crim.P. 646(A). However, certain
exhibits, such as transcripts of testimony, written confessions, and the
-6-
J-S45026-15
criminal information or indictment, are not permitted to go with the jury.2
Pa.R.Crim.P. 646(C).
In a similar case, a defendant asked the trial court to provide the jury
with a letter written by a Commonwealth witness that cast doubt on his
credibility. Commonwealth v. Bridges, 757 A.2d 859, 877 (Pa. 2000),
abrogated on other grounds by Commonwealth v. Freeman, 827 A.2d
385, 412 (Pa. 2003). The trial judge refused to do so, holding that the letter
would have unnecessarily highlighted that piece of evidence. Id. at 877-78.
Our Supreme Court found no abuse of discretion based upon that reason and
also because “the jury was well aware of the letter” as the witness had been
cross-examined about the letter, the contents had been read into evidence,
and it was part of closing arguments. Id. at 878.
Here, the jury asked to see three exhibits: the two at issue on appeal
and the text messages from Clark’s phone, a defense exhibit. N.T., 4/21-
25/2014, at 624-25. The parties and the trial court agreed that the text
messages could go out with the jury. Id. at 625. However, the trial court
did not allow the other two exhibits because “[t]hey’re formal statements
which the [trial court] typically does not send out to the jury. The parties
both emphasized and displayed portions that they wanted the jury to
consider.” Id.
____________________________________________
2
The jury charge also is not permitted to go with the jury, subject to
certain exceptions. See Pa.R.Crim.P. 646(B), (C).
-7-
J-S45026-15
The letter written by Clark was read to the jury by Ramsey and the
Commonwealth published a copy to the jury. Id. at 219-21. The
Commonwealth examined Ramsey about the letter. Id. at 221-24. Ramsey
was cross-examined about the letter. Id. at 226-27. Clark also testified
about the letter and what he meant in the letter. Id. at 469-73. Clark was
also cross-examined about the letter. Id. at 502-05.
Ramsey also was questioned about the recantation letter which Clark
introduced during Ramsey’s cross-examination. Ramsey denied writing or
signing the letter. Id. at 252-53, 254-56. Clark later introduced the letter
through Ramsey’s former cellmate, Raymond Jones, who testified that he
witnessed Ramsey write the recantation letter and that he signed the letter
as a witness. Id. at 425-26. Jones read the letter into evidence. Id. at
426-27.
Clearly, both pieces of evidence were highlighted to the jury. As with
Bridges, both letters were read into evidence. Both letters were covered in
direct and cross-examination. Based upon Bridges, we find no abuse of
discretion by the trial court in refusing to permit the letters to go out with
the jury.
Clark next challenges the weight of the evidence supporting his
conviction and the trial court’s denial of his post-sentence motion. Our
standard of review on a challenge to the weight of the evidence is entwined
with the trial court’s review of the same challenge:
-8-
J-S45026-15
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, 744 A.2d 745,
751–52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177,
1189 (Pa. 1994). 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. Widmer,
744 A.2d at 752. 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.’” Id. at 752
(citation omitted). It has often been stated that “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.” Brown, 648 A.2d at 1189.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
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.
Brown, 648 A.2d at 1189. 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.
Commonwealth v. Farquharson, 354 A.2d 545 (Pa.
1976). 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.
Widmer, 744 A.2d at 753 (emphasis added).
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 trial court’s discretion, we have
explained:
-9-
J-S45026-15
The term “discretion” imports the exercise of judgment,
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.
Widmer, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger
Co., 625 A.2d 1181, 1184–85 (Pa. 1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations
modified).
Clark makes the same claims here as he did in his post-sentence
motion, namely that Ramsey’s testimony and McGowan’s prior statement
that Clark was the shooter were unreliable. In response, the trial court
stated:
Here, in addition to the eye witness testimony of Jonathan
Ramsey and the prior statement given by Devacio McGowan, the
facts supporting Clark’s conviction were substantial. The
Commonwealth presented testimony from Bennie Chisolm that
Clark had a motive to kill Bennie, and that Rob was with Bennie
when Rob was shot and killed. Aja Lewis testified for the
Commonwealth that she saw Clark in a car in the vicinity of the
shooting at the time of the shooting, that she warned Bennie
that Clark was in the area, and that Bennie called her later to tell
her that the people she warned him about killed Rob. The
Commonwealth also presented evidence that a cellphone linked
to Clark was in the vicinity of the shooting around the time the
shooting happened, then was taken to Hershey, and finally taken
to Lancaster. The location of the cell phone at the times
specified correlated with Jonathan Ramsey’s account of where he
went with Clark after the shooting, and where Clark said he was
going to dispose of the gun.
- 10 -
J-S45026-15
The only evidence presented that Clark was not the shooter was
his own testimony. [The trial court found] that Clark’s testimony
was not credible, and that it should certainly not be given
greater weight than the overwhelming evidence the
Commonwealth presented of Clark’s guilt.
T.C.M. at 3.
As the trial court noted, there was evidence that corroborated
Ramsey’s testimony and that the testimony supported the verdict. The trial
court found that the jury’s verdict did not shock its conscience. We must
give the utmost deference to the trial court’s conclusions regarding the
weight of the evidence. See Clay, supra. We find no reason in the record
to determine that the trial court abused its discretion in reaching that
conclusion.
Finally, Clark challenges the discretionary aspects of his sentence.
“It is well-settled that, with regard to the discretionary aspects
of sentencing, there is no automatic right to appeal.”
Commonwealth v. Austin, 66 A.3d 798, 807–08 (Pa. Super.
2013).
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the
concise statement raises a substantial question that the
sentence is appropriate under the sentencing code. . . .
[I]f the appeal satisfies each of these four requirements
we will then proceed to decide the substantive merits of
the case.
Id. (brackets in original).
- 11 -
J-S45026-15
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014).
Here, Clark has filed a timely notice of appeal and has preserved the
issue in his written post-sentence motion. Clark also has included a Rule
2119(f) statement in his brief. Clark’s Brief at 13-15. Our next step is to
determine whether Clark has raised a substantial question.
In his Rule 2119(f) statement, Clark argues that his life sentence is
excessive and asserts that there were factors that the court did not consider
adequately. Clark’s Brief at 13-15. We have held previously that a similar
claim of failure to consider sentencing factors in a challenge to a life
sentence for a juvenile raised a substantial question. Commonwealth v.
Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014). Likewise, we find that
Clark has raised a substantial question.
Clark argues that the court did not consider the statutory factors in
sentencing him to life in prison. Clark also suggests that certain mitigating
factors, such as his lack of familial support, his upbringing in a rough
neighborhood, his lack of criminal sophistication, his lack of a history of
violence, and his amenability to rehabilitation, should have been given more
weight. Clark’s Brief at 22-24.
We review a challenge to the discretionary aspects of sentence for an
abuse of discretion. Seagraves, 103 A.2d at 842. Further, when a PSI is
available to the trial court, we presume that the trial court “was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with any mitigating factors.” Id.
- 12 -
J-S45026-15
The General Assembly set forth the following factors to be considered
when a trial court must sentence a defendant convicted of homicide who was
a juvenile at the time the crime:
(1) The impact of the offense on each victim, including oral and
written victim impact statements made or submitted by family
members of the victim detailing the physical, psychological and
economic effects of the crime on the victim and the victim’s
family. A victim impact statement may include comment on the
sentence of the defendant.
(2) The impact of the offense on the community.
(3) The threat to the safety of the public or any individual posed
by the defendant.
(4) The nature and circumstances of the offense committed by
the defendant.
(5) The degree of the defendant’s culpability.
(6) Guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing.
(7) Age-related characteristics of the defendant, including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by the
defendant.
(v) The nature and extent of any prior delinquent or
criminal history, including the success or failure of any
previous attempts by the court to rehabilitate the
defendant.
(vi) Probation or institutional reports.
(vii) Other relevant factors.
18 Pa.C.S.A. § 1102.1.
- 13 -
J-S45026-15
The trial court stated that it considered the PSI, testimony, and the
pre-sentence memoranda submitted by the parties, along with all the
statutory factors. T.C.M. at 4; N.T., 6/23/2014, at 55-56. The court also
reviewed each of the section 1102.1 factors. N.T., 6/23/2014, at 56-59.
The trial court particularly noted the impact on the victim’s family, several of
whom provided victim impact statements at sentencing, the fact that Clark
fired up to eleven shots into a group of people, that Clark intended to kill
Chisholm and was not acting impulsively or recklessly, that Clark was almost
eighteen at the time of the shooting, that Clark had a prior record related to
drugs, and that rehabilitation thus far had been unsuccessful. Based upon
these factors and the other considerations, the trial court sentenced Clark to
life in prison. The trial court considered all the factors that were required
and did not abuse its discretion in concluding that a life sentence was
appropriate. Therefore, this issue does not merit relief.
Judgment of sentence affirmed.
Judge Bowes joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
- 14 -