Com. v. Muhammad, M.

J-S93030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MALIK MUHAMMAD

Appellant No. 1157 EDA 2015

Appeal from the Judgment of Sentence dated March 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007944-2010
CP-51-CR-0007945-2010
CP-51-CR-0007946-2010

BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED MARCH 31, 2017

Appellant, Malik Muhammad, appeals from the judgment of sentence

following a jury trial and convictions for second-degree murder, robbery,

aggravated assault, conspiracy, possession of an instrument of crime, and

multiple violations of the Uniform Firearms Act.1 Appellant challenges,

among other things, the sufficiency and weight of the evidence, whether he

was entitled to confront the witness who conducted the victim’s autopsy, and

whether his colloquy waiving his right to testify was premature. We affirm.

____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 2702(a), 903, 907, 6105, 6106, and
6108.
J-S93030-16

We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 2/10/16, at 1-6. We add that at the sentencing

hearing, Appellant did not challenge the weight of the evidence. Appellant

timely appealed, and the court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement. The court granted several extensions of time, and Appellant

ultimately served the court with a Rule 1925(b) statement.2

Appellant raises the following issues:

Whether the weight of the evidence is against Appellant’s
convictions stemming from the incidents of December 27,
2008, where the two surviving victims, and several other
eyewitnesses failed to identify Appellant at trial as the
perpetrator. Moreover the sole witness placing Appellant
at the scene gave a self-serving statement shifting blame
on Appellant by testifying Appellant was responsible for
planning and perpetrating the crime.

Whether the evidence is insufficient for Appellant’s
convictions stemming from the incidents of December 27,
2008, where the overwhelming eyewitness testimony fails
to identify Appellant as the shooter and eye witness was
____________________________________________
2
Due to an apparent breakdown in the trial court’s operations, Appellant’s
Rule 1925(b) statement for the above-captioned matter was never docketed
or made a part of the certified record. Both the record and the docket for
this case reflect, however, a filed 1925(b) statement, which has Docket No.
5336-2010 in the caption. That case at Docket No. 5336-2010 also involves
Appellant but is completely unrelated to the instant case. In any event, the
trial court filed a responsive Pa.R.A.P. 1925(a) opinion, which stated that
Appellant filed a requested Rule 1925(b) statement. Under these unique
circumstances, we decline to find Appellant waived his issues because it is
apparent that Appellant’s counsel, at a minimum, served the trial court with
a Rule 1925(b) statement. Cf. Pa.R.A.P. 1925(c)(3) (“If an appellant in a
criminal case was ordered to file a Statement and failed to do so, such that
the appellate court is convinced that counsel has been per se ineffective, the
appellate court shall remand for the filing of a Statement nunc pro tunc and
for the preparation and filing of an opinion by the judge.”).

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J-S93030-16

the co-defendant who gave self-serving testimony pointing
the finger at Appellant to conjure favorable treatment from
the Commonwealth.

Whether Appellant’s Sixth Amendment Confrontation
Clause rights were violated when the Commonwealth
presented the testimony of Dr. Gulino who did not perform
the autopsy nor write the autopsy report curtailing
Appellant’s right to confront witnesses as he could not
cross examine the authors or Medical examiner who
conducted the autopsy.

Whether there was Prosecutorial Misconduct when the
Commonwealth bolstered the testimony of one of its
witnesses, Detective Robert Fetters, when he testified he
was authorized by the District Attorney’s office to secure
warrants for Appellant thus creating improper credibility to
the Detective and the investigatory work conducted.

Whether the trial court gave improper jury instruction on
the charge of second degree murder when it instead gave
an in depth discussion on Serious Bodily Injury similar to
jury instructions on Aggravated Assault that could have led
[the] jury to be confused as the actual charges.

Appellant’s Brief at 5-6 (some issues reordered to facilitate disposition).

The standard of review for a challenge to the sufficiency of the

evidence follows:

When reviewing a sufficiency of the evidence claim, this
Court must review the evidence and all reasonable
inferences in the light most favorable to the
Commonwealth as the verdict winner, and we must
determine if the evidence, thus viewed, is sufficient to
enable the fact-finder to find every element of the offense
beyond a reasonable doubt.

Commonwealth v. Goins, 867 A.2d 526, 527 (Pa. Super. 2004). A

challenge to the weight of the evidence must be properly preserved:

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J-S93030-16

(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.

Pa.R.Crim.P. 607(A). Similarly, a defendant cannot raise an issue for the

first time on appeal—it must be preserved with a timely and specific

objection before the trial court. Commonwealth v. Baumhammers, 960

A.2d 59, 73 (Pa. 2008), cert. denied, 558 U.S. 821 (2009);

Commonwealth v. Piper, 328 A.2d 845, 847 (Pa. 1974).

We briefly summarize the arguments for all of Appellant’s issues.

Appellant broadly challenges the sufficiency of evidence for all of his

convictions. He contends that there was no eyewitness other than his co-

conspirator (who identified him as the perpetrator), and there was no

physical evidence linking him to the crimes. With respect to his weight

claim, Appellant claims that his co-conspirator was motivated to testify

against him because of an agreement with the Commonwealth. He asserts

that the Commonwealth presented several witnesses who could not identify

him as the shooter. Appellant claims that he had the right to confront and

examine the doctor that performed the autopsy of the victim. He insists that

this confrontation issue was preserved because he first raised it in his Rule

1925(b) statement. Appellant maintains that the court prematurely held a

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J-S93030-16

colloquy regarding his right to testify. He asserts that the Commonwealth

improperly bolstered a witness’s credibility. Lastly, Appellant argues that

the trial court improperly instructed the jury on aggravated assault instead

of second-degree homicide. We conclude Appellant is not entitled to relief

on any of these issues.

After careful review of the record,3 the parties’ briefs, and the decision

of the Honorable Jeffrey P. Mineheart, we affirm on the basis of the trial

court’s opinion, except as discussed below. See Trial Ct. Op. at 6-17

(holding (1) Appellant waived his sufficiency claim by failing to identify the

specific element of the particular crime he was challenging; (2) regardless,

the evidence was sufficient for all of his convictions; 4 and (3) Appellant

waived his remaining claims, including his weight claim,5 by failing to

____________________________________________
3
The certified record is missing the September 19, 2012 transcript of the
trial. Appellant, however, included the relevant part of the September 19th
trial transcript as part of the reproduced record. “While this Court generally
may only consider facts that have been duly certified in the record, . . . ,
where the accuracy of a document is undisputed and contained in the
reproduced record, we may consider it.” Commonwealth v. Barnett, 121
A.3d 534, 545 n.3 (Pa. Super.) (citations omitted), appeal denied, 128
A.3d 1204 (Pa. 2015), cert. denied, 136 S. Ct. 2391 (2016).
4
With respect to Appellant’s conviction for carrying a firearm without a
license, the trial court noted that the Commonwealth failed to present
evidence that Appellant did not have a license, but reasoned that because
Appellant was under the age of twenty-one, he could not have obtained a
license anyway. Trial Ct. Op. at 11 n.5. The trial court overlooked that the
parties stipulated that Appellant lacked a license. N.T. Trial, 9/20/12, at 49-
50.
5
We acknowledge the trial court cited Commonwealth v. Jarowecki, 923
A.2d 425 (Pa. Super. 2007), in addressing Appellant’s weight claim. See
(Footnote Continued Next Page)

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J-S93030-16

preserve the issue properly). A footnote in the trial court’s opinion

erroneously states that Appellant’s robbery charge was dismissed prior to

trial. Trial Ct. Op. at 6 n.4. The trial court, however, addressed the

sufficiency-of-evidence challenge to Appellant’s robbery conviction and

appropriately disposed of that challenge. Id. at 9. Therefore, we do not

adopt this footnote. We also reiterate that Appellant could not preserve his

witness confrontation issue by raising it for the first time in his Rule 1925(b)

statement. See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278,

1287 (Pa. Super. 2004) (en banc). Accordingly, having discerned no error of

law or abuse of discretion, we affirm the judgment of sentence below. The

parties are instructed to attach a copy of the trial court’s opinion of February

10, 2016, to all future filings that reference this Court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/31/2017

_______________________
(Footnote Continued)
Trial Ct. Op. at 13. Our Supreme Court reversed this Court in that case on
other grounds. Commonwealth v. Jarowecki, 985 A.2d 955, 969 (Pa.
2009). The reversal has no bearing on the correctness of the trial court’s
disposition.

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 Circulated 03/03/2017 04:13 PM
., . -·)

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION

COMMONWEAL TH OF PENNSYLVANIA COURT OF COMMON PLEAS
OF PHILADELPHIA

VS. CRIMINAL TRIAL DIVISION

CP-5l-CR-0007944-2010
MALIK MUHAMMAD. CP-51-CR-0007945,.2010 c>
CP-5 l-CR-0007946-2010

FILED
OPINION FEB 1 0 201~
PROCEDURAL HISTORY Post Trial Unit·-

The above-named defendant was charged as of the above Bill and Term numbers with,

inter alia, murder, generally, robbery, criminal conspiracy, carrying a firear~ without a license,

carrying a firearm on a public street, possessing an instrument of crime, generally, and two

counts of aggravated assault. These charges stemmed from an incident that occurred on

December 27, 2008, during which appellant and Jamil Jones committed a robbery together that

culminated in the shooting death of Terrell Holliday and serious bodily injury to Naeer

Witherspoon and Brandon Garland.

Defendant's trial commenced in September of 2012, before this Court and a jury. On

September 24, 2012, the jury found defendant guilty of second-degree murder, robbery, criminal

conspiracy, carrying a firearm without a license, carrying a firearm on a public street, possessing

an instrument of crime, generally, and two counts of aggravated assault. Sentencing was deferred

until March 18,. 2015, on which date this Court imposed an aggregate sentence of life
 -i
_,'

1
imprisonment plus thirty-five to seventy years' incarceration. Following the imposition of

sentence, appellant filed a notice of appeal and a requested Pa.R.A.P. 1925(b) Statement.

FACTUAL HISTORY

On December 27, 2008, at about 8:50 p.m., Philadelphia Police Officer Christopher

Heam and his partner were on routine patrol when they received a radio call directing them_ to.

7211d and· Ogontz A venue to investigate reports of a person with· a gun and a shooting. Th.e

officers immediately proceeded to that location where they observed two males, later identified

as Terrell Holliday and Naeer Witherspoon, lying on the ground. Holliday had a gunshot wound.

to his head and was unresponsive: Witherspoon on the other hand, who also had been shot, was

conscious so the officers placed him in their patrol car and drove him to a nearby hospital.

Although Officer Hearn asked Witherspoon who had shot him, Witherspoon refused to identify

his assailant. The bullet that struck Witherspoon hit his spine permanently paralyzing him.

Holliday was also transported to a hospital by emergency medical personnel where he

was pronounced dead. An autopsy performed on his body revealed that he died as_ a result of a

gunshot to his head. The manner of death was deemed to be homicide.
•.,·

Police Officer Robert Jala and his pa1tner were also dispatched to the scene. Upon

arrival, the officers were advised that there was a third victim and that he was lying in front of

7220 21st Street. The officers immediately proceeded to that location where they encountered

Brandon Garland, who _ was suffering from gunshot wounds .. The officers immediately

transported him to the same hospital the other two victims had been transported.

1
The delay in sentencing resulted from negotiations between the Commonwealth and defendant involving an open
case charging defendant with homicide. That matter was eventually tried by this Court in 2013 and appellant was
convicted of first-degree murder and related offenses. See CP-5 J-CR-0005336-210.

2
 .r'

An examination of the scene· of the shooting resulted in the recovery of three fired

cartridge cases'. They were submitted to the Philadelphia Police Department's Firearms

Examination Unit for testing. That testing revealed that they were each .40 caliber and that they

had been fired from the same gun.

When the shooting occurred, Ms. Alisa Colbert was working at a pizzeria situated at the

site of the shooting. She recalled that just prior thereto Garland and Witherspoon came into the

store and Witherspoon ordered two slices of pizza. They both then left. After they left, Ms.

Colbert noticed a white car parked outside that was blocking traffic so she exited the store and

saw Holliday, who had a wound to his head, as well as Witherspoon, who also appeared to be

injured' Ms. Colbert told the manager of the pizzeria to call the police. Police arrived shortly

thereafter but before they did so someone entered the white car and drove it away.

Ms. Rhena Richardson also worked at the pizzeria. On the night of the incident, she saw .

both Holliday and Witherspoon after they had been shot. She also saw a man associated with

them drive the white Buick from the scene and was aware that Garland sold drugs.

Based on information received, police learned that the white car, a Buick Park A venue,

belonged to Witherspoon. It was later found parked outside of 7087 Forest Avenue in

Philadelphia, which was approximately one block from Ogontz A venue.

Brandon Garland testified that on the day of the incident, he was selling marijuana in the

area of 7211d and Ogontz A venue when two persons walked up to him, one of whom asked him

for marijuana as the other person walked away. Garland told the person that he had none left

after which he turned around and called to a confederate to obtain more marijuana. Garland then

2
Police learned that the white car, a Buick Park A venue, belonged to Witherspoon. It was
located by them parked outside of 7087 Forest A venue in Philadelphia, which was approximately
one block from Ogontz A venue.

3
 .. I . -1

turned back toward the person and saw that the person had a gun pointing at his face. Garland

began backing up and turned to run and when he did so, he heard shots. The next thing he

recalled was waking up in a hospital. Although Garland i·ecalled many of the details of the·

incident, including observing the white Buick Park Avenue and Witherspoon and Holliday, both

of whom who exited it, he said that he could not identify who the person was who had shot him

or the other person with the shooter. ·

Naeer Witherspoon did not remember much about the incident. He did, however; recall

hearing Jones' voice at the scene after being shot.

Following the incident herein; Philadelphia Police Detective Robert Fetters, who had

been assigned to investigate the instant matter, was contacted by Jamil Jones, who on December

29, 2008, came to police headquarters and gave the detective a statement. In the statement Jones

told police that a male who went by the name "Dog Man" was involved in the incident. Jones

gave a second statement on January 2, 2009, wherein he gave more information about the

incident. On January 16, 2009, Jones was interviewed a third time. Unlike the previous two

occasions, police commenced the interview by giving Jones Miranda warnings because the

investigation of the incident had caused police to believe that Jones was more involved in it than

he had admitted. After waiving the rights covered by the Miranda warnings, Jones gave police a
statement wherein he inculpated himself in the incident and identified defendant as his co-actor

and the person who had shot the victims.

Although Jones had implicated himself in the crime, police let him go home because they

wanted to obtain more information related to the shooting. That effort failed however because no

i
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4
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one, including the employees of the pizzeria and either shooting victims, were willing to identify

a photograph of defendant as depicting the other person involved in the incident.

Police eventually obtained an arrest warrant for Jones and following his arrest, he decided

to cooperate with authorities in exchange for a plea deal. On August 21, 2009, Jones and his

attorney agreed to participate in a proffer session. Based on the proffer session, the

Commonwealth agreed to permit Jones to enter a non-negotiated guilty plea to the charges of

third-degree murder, criminal conspiracy, robbery, possessing instruments of crime, generally,

and two counts of aggravated assault in exchange for his testimony. Jones entered that plea on

December 21, 2009.

According to Jones, on the day of the incident, defendant, a long-time friend, asked him

to go on a "mission," which Jones knew meant a robbery, in the West Oak Lane area of

Philadelphia. Jones and defendant took a bus there where Jones decided that if he saw Brandon

Garland, he was going to rob him. Shortly thereafter, Jones saw Garland on 72nd Street and

walked up to him and asked him if he had any marijuana. Jones said he did not and he made a

phone call. 3

During this interaction, Garland espied defendant and asked Jones about defendant. Jones

denied knowing defendant. Defendant then told Jones to stop playing at which time Jones pulled

out a gun and told Garland that he was being robbed. Garland began backing away as he tried to

talk Jones and defendant out of robbing him. As this was occurring, Terrell Holliday and Naeer

Witherspoon drove up in a white Buick LeSabre and when they did, defendant, armed with a .40

caliber hand gun, shot Garland, Holliday, and Witherspoon. Both defendant and Jones then left

3
It is noted that in his proffer Jones stated that Garland asked him how much marijuana he wanted and Jones stated
that he said that he wanted it al I.

5
 .. -· i

the area and Jones told defendant that he had shot the wrong people because they were friends of

his. Defendant said that he shot them because he did not know them.

Jones, who was armed with a .38 caliber revolver, denied firing his weapon during the

incident. Defendant retrieved that gun from Jones the next day.

Following the incident, Jones told a friend and members of his family about the incident

· because he felt remorse about what occurred to his friends. They contacted his uncle, a homicide

detective in the Philadelphia Police Department, and, after further discussion with his family,

Jones turned himself in, which led to his giving police the statements referred to above.

Based on the information received from Jones, Detective Fedders obtained an arrest

warrant for defendant on March 29, 2010. Defendant was arrested on March 31, 2010.

DISCUSSION

In his 1925(b) statement, defendant first asserts that the evidence was insufficient to

support the charges because the Commonwealth only presented the testimony of a single witness,

namely Jamil Jones, to establish the elements of the crimes defendant was convicted of

committing. Defendant further argues that the evidence was insufficient to support the charges

because the evidence of guilt came from only two witnesses, whose testimony, defendant

contends, failed to prove each element of the crimes defendant was convicted of committing

beyond a reasonable doubt." In essence, defendant is arguing that the testimony presented by the

two witnesses was not credible and thus, incapable of supporting the verdict.

The Pennsylvania Supreme and Superior Courts have repeatedly held, sufficiency review

does not include an assessment of the credibility of witness testimony or other evidence.

Commonwealth v. Brown, 648 A.2d 1177, 1191 (Pa. 1994); Commonwealth v. Wilson, 825

4
Defendant indicates that defendant was convicted of robbery. Defendant is mistaken because that charge was
dismissed prior to the trial and was not one of the charges upon which a verdict was rendered ..

6
\_

· ·-·-·'

A.2d 710, 713 (Pa. Super. 2003), and that testimonial conflicts will not render evidence

insufficient. Commonwealth v. Hargrave, 745 A.2d 20, 22 (Pa. Super. 2000); Commonwealth v.

Mechalski, 707 A.2d 528, 530 (Pa. Super. 1998). The courts have thus repeatedly rejected

"sufficiency" arguments that are directed at the weight and credibility of the evidence. See e.g.,

Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (rejecting argument that evidence

supporting .his murder conviction was insufficient due to inconsistencies between various

witnesses' testimony because ''[ although appellant phrases this as a sufficiency argument, the

challenge goes to the . weight of the evidence"), cert. denied, 531 U.S. 829 (2000);

Commonwealth v. Sullivan, 864 A.2d 1246, 1249-50 (Pa. Super. 2004) (finding credibility

arguments inappropriate for sufficiency claim); Commonwealth v. Hodge, 658 A.2d 386, 389

(Pa. Super. 1995) ("Unlike the challenge of legal sufficiency of the evidence, the complaint that ·

the verdict was against the weight of the evidence requires an assessment of the credibility of the

testimony offered by the Commonwealth.") (internal quotations and citation omitted).

Appellant's credibility-based sufficiency arguments are therefore unavailing especially because

the uncorroborated testimony of single witness may alone be sufficient to convict a defendant.

Commonwealth v. Kearney, 601 A.2d 346, 349 n.6 (Pa. Super. 1992).

Accordingly, because the jury, sitting as fact-finder, found the testimony presented by the

Commonwealth credible, it is suggested that if this claim is deemed not to have been waived, the

Honorable Court find that the evidence was sufficient to sustain the verdicts _and grant no relief

with respect to this claim.

The claim should also be deemed waived because defendant failed to articulate which

elements of the crimes he was convicted of committing the Commonwealth failed to establish.

"[W]hen challenging the sufficiency of the evidence on appeal, the [a]ppellant's [Rule] 1925

7
 --)

statement must 'specify the element or elements upon which the evidence was insufficient' in

order to preserve the issue for appeal." Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.

2009), appeal denied, 3 A.3d 670 (Pa. 2010) (quoting Commonwealth v. Williams, 959 A.2d

1252, 1257 (Pa. Super. 2008)). "Such specificity is of particular importance in cases here... the

[a]ppellant was convicted of multiple crimes each of which contains numerous elements that the

Commonwealth must prove beyond a reasonable doubt." Gibbs, supra (holding appellant waived

challenge to sufficiency of evidence where appellant failed to specify in Rule l 925(b) statement

which convictions, and which elements of those crimes, he was challenging on appeal; fact that

trial court addressed appellant's sufficiency claim in its opinion was of no moment to waiver

analysis).

In any event, if it is determined that defendant preserved his sufficiency challenge, it is

suggested that no relief be accorded defendant because the evidence was sufficient to support the

charges. A review of a sufficiency claim requires that the evidence presented by the

Commonwealth be assessed to ascertain if it establishes each material element of the crime

beyond a reasonable doubt. Commonwealth v. ·Pagan, 950 A.2d 270, 278 (Pa. 2008). The

evidence and all reasonable inferences are viewed · in the light most favorable to the

Commonwealth as verdict winner. Commonwealth v. Watkins, 843 A.2d 1203, 121 l (Pa. 2003);

Commonwealth v. Collins, 703 A.2d 418, 420 (Pa. 1997).

"A criminal homicide constitutes murder of the second degree when it is committed

while defendant was engaged as a principal or an accomplice in the perpetration of a felony." 18

Pa. C.S.A. §2502(b). "The act of the defendant in engaging in or being an accomplice in the

commission of, or an attempt to commit, or flight after committing, or attempting to commit

8
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robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or

kidnapping." 18 Pa. C.S.A. §2502(d)(emphasis added).

"A person is guilty of robbery if, in the course Of committing a theft, he: (I) inflicts

serious bodily injury upon another." 18 Pa. C.S. § 3701(a)(l)(i). Additionally, the robbery

statute further provides that "[a]n act shall be deemed 'in the course of committing a theft' if it

occurs in an attempt to commit theft or in flight after the attempt or commission." I 8 Pa. C.S.A.

§3701 (a)(2). Therefore, a defendant can be convicted of robbery regardless of whether an actual

theft occurs or not.

Here, the evidence, viewed in the light most favorable to the Commonwealth,

overwhelmingly supports defendant's second-degree murder and robbery convictions. The

evidence established that defendant and Jones travelled to the area where the incident occurred

for the specific purpose of committing a robbery. They then identified their victim at which time

Jones, appellant's accomplice announced a robbery. When the victim resisted, appellant shot him

and the other two victims.

This evidence was more than sufficient to support the conviction. It is well-settled that

"(a] defendant can be convicted on the positive identification of one witness." Commonwealth

v. Saldutte, 7 A.2d 121, 123 (Pa. Super. 1939). See also Commonwealth v. King, 959 A.2d 405,

411 (Pa. Super. 2008) (identification testimony of eyewitnesses sufficient, without physical

evidence, to support first-degree murder conviction). Besides, while no other witness .

specifically identified defendant as one of the perpetrators, Jones' testimony was corroborated by

the other witnesses whose testimony about several details of the crime matched Jones'

testimony.

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The evidence was sufficient to support the other crimes as well. To sustain a conviction

for criminal conspiracy, the evidence must establish that the defendant entered into an agreement

to commit or aid in an unlawful act with another person or persons, with a shared criminal intent,

and that an overt act was done in furtherance of the conspiracy. Commonwealth v. Johnson, 7 I 9

A.2d 778, 785 (Pa. Super. 1998) ( en bane) ( citations omitted). Conspiracy can be established

solely with circumstantial evidence, such as the interaction between the parties and the context of

their actions. Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa. Super. 2005) (citations

omitted).

With regard to the crime of aggravated assault, 18 Pa.C.S.A. § 2702(a)(l) provides, in

relevant part, "[ 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." Commonwealth v.

Martuscelli, 54 A. 3d 940, 947-48 (Pa. Super. 2012). "For aggravated assault purposes, an

'attempt' is found where the accused,' with the required specific intent, acts in a manner which

constitutes a substantial step toward perpetrating a serious bodily injury upon another." Id.

(citing Commonwealth v. Gruff, 822 A.2d 773, 76 (Pa. Super. 2003). "Serious bodily injury" is .

defined under 18 Pa. C.S.A. § 230 I as "[b ]odily injury which creates a substantial risk of death

or which causes serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ."

The crime of Possessing an instrument of crime is set forth in 18 Pa. C.S. § 907 as

follows:

(a) Criminal instruments generally.--A person
commits a misdemeanor of the first degree if he
possesses any instrument of crime with intent to
employ it criminally.

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18 Pa.C.S. § 907.
It is the Commonwealth's burden to prove that the defendant possessed an object that is

an instrument of crime with the intent to use the object for a criminal purpose. In the Interest of

A.C., 763 A.2d 889, 890 (Pa. Super. 2000).

A person commits the crime of carrying a firearm without a license, 18 Pa. C.S. § 6106, if

he or she carries a concealed firearm without a license. A person violates 18 Pa. C.S. § 6108,

which defines the crime of carrying a firearm without a license if he or she carries a "firearm,

rifle or shotgun at any time upon the public streets or upon any public property" in Philadelphia

unless licensed to do so or exempt from the license requirement. For purposes of these sections, a

"firearm" is "[a]ny pistol or revolver with a barrel length less than 15 inches, any shotgun with a

barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any

pistol, revolver, rifle or shotgun with an overall length of less than 26 inches." 18 Pa. C.S. §

6102.

Instantly, the evidence was clearly sufficient to support the remaining charges. First,

through Jones, the Commonwealth established that defendant and Jones entered into a corrupt

confederation the object of which was to commit a robbery. Jones' testimony was also sufficient

to establish that defendant intentionally shot the other victims causing them to suffer serious

bodily injury.

The evidence also established that defendant possessed a firearm with the intent to

employ it criminally as he shot the three victims with it unjustifiably. Further, it established that

defendant possessed a firearm while not eligible to be licensed to do so and that he carried a

firearm on a public street in Philadelphia. 5 Therefore, the evidence was sufficient to support the

5
While it appears that the Commonwealth failed to present evidence of non-licensure, defendant was under the age
of twenty-one when he committed the crime and was ineligible to obtain a firearms license. In the event the

11
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charges and it is suggested that defendant's claim with respect to this issue be denied in the event

that it is not deemed to have been waived.

In his second claim defendant argues that the verdict is against the weight of the evidence

because it rests upon the testimony of a single witness and because other witnesses failed to

. identify defendant in court or during photographic identification sessions. Said claim should be

deemed waived because it was not raised before this Court either orally or in a post-sentence

motion. In order to preserve a weight of the evidence claim for appellate review said claim must

be presented to the trial court or else it is waived.

Regarding Appellant's weight of the evidence claim we
note that Appellant did not make a motion raising a weight of the
evidence claim before the trial court as the Pennsylvania Rules of
Criminal Procedure require. See Pa.R.Crim.P. 607(A).22 The fact
that Appellant included an issue challenging the verdict on weight
of the evidence grounds in his 1925(b) statement and the trial court
addressed Appellant's weight claim in its Pa.R.A.P 1925(a) opinion
did not preserve his weight of the evidence claim for appellate
review in the absence of ah earlier motion. Pa.R.Criin.P. 607(A);
Steiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1257 (2009)
(holding that inclusion of an issue in a 1925(b) statement that· has
not been previously preserved does not entitle litigant to appellate
review of the unpreserved claim); Mack, 850 A.2d at 694 (holding
weight claim waived by noncompliance with Pa.R.Crim.P. 607,
even if the trial court addresses it on the merits); Commonwealth v.
Burkett, 830 A.2d 1034, .1037 (Pa.Super.2003) (same). See also
Commonwealth v. Little, 879 A.2d 293, 300-301 (Pa.Super.2005),
appeal denied, 586 Pa. 724, 890 A.2d 1057 (2005);
Commonwealth v. Washington, 825 A.2d 1264, 1265
(Pa.Super2003). Appellant's failure to challenge the weight of the
evidence before the trial court deprived that court of an opportunity
to exercise discretion on the question of whether to grant a new
trial. Because "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,"
Commonwealth v. Widmer, 560 Pa.· 308, 744 A.2d 745, 753
(2000), this Court has nothing to review on appeal. We thus hold

Honorable Court determines that the evidence was insufficient to support the charge of carrying a firearm without a
license a remand would be unnecessary because a verdict without further penalty was entered on that charge.

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that Appellant waived his weight of the evidence claim because it
was not raised before the trial com1 as required by Pa.R.Crim.P.
607.
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).
In accordance with the holding of Sherwood, it is respectfully suggested that defendant's

weight claim be deemed waived.

In the event that the claim is considered not to have been waived, it is suggested that it be

denied. The standard in reviewing a, weight of the evidence claim is well-settled:

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 ofjustice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and citations omitted); see

also Commonwealthv. Sanchez, 36 .3d 24, 27(Pa.2011) (stating that "[rjelief on a weight of the

evidence claim is reserved for extraordinary circumstances, 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." (citation omitted)).

The initial determination regarding the weight of the evidence is for the fact-finder.

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa. Super. 2007). The trier of fact is free to

believe all, some or none of the evidence. Id. A reviewing court is not permitted to substitute its

judgment for that of the fact-finder. Commonwealth v. Small, 741 A.2d · 666, 672 (Pa. 1999).

When the challenge to the weight of the evidence is predicated on the credibility of trial

testimony, appellate review of a trial court's decision is extremely limited. Unless the evidence is

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so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, weight

of evidence claims shall be rejected. Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa.

Super. 2004).

Here, applying the above standards to the instant matter, it is clear that the verdict does

not shock the conscience because the jury's verdict does not shock the conscience. Defendant

attack on t~1e weight of the evidence rests primarily on a claim that Jones' testimony was not ·

sufficient by itself to sustain the convictions given the Jack of corroborating identification

evidence.

Assessing the credibility of a witness and according that testimony appropriate weight is

within the province of the trier of fact, here the trial judge. 523 A.2d 1140 (Pa. Super. 1987),

alloc. denied 5533 A.2d 712 (Pa. 1987). The fact that the jury found Jones credible is

unassailable especially given that Jones' testimony was corroborated by the other evidence

presented in the case. Moreover, simply because other witnesses failed to identify defendant as

the person who robbed and shot the victims does not render the verdict against the weight of the

evidence given Jones' credible first person account of the incident. Accordingly, it is suggested

that if the instant claim is not deemed waived, defendant not be granted relief thereon for the

reasons stated.

In his third claim, defendant asserts that his constitutional right to confront witnesses

against him was violated because the medical examiner who testified at trial did not conduct the

autopsy upon the victim or co-sign the autopsy report after it was completed. (N. T. 9/19/12, 114-

127). Fourth, defendant contends that this Court committed error because it conducted a

colloquy of defendant regarding whether he was going to testify in his own defense before the

Commonwealth rested its case. (N.T. 9/20/12, 3-5). Next, defendant· claims that the

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Commonwealth engaged in impermissible vouching of the testimony given by its witnesses

when it elicited from Detective Robert Fetters that the Chief of the Philadelphia District

Attorney's Office authorized and directed him to obtain an arrest warrant for defendant. (N.T.

9/20/12, 14-16, 18-20). Finally, defendant argues that the Court "recited the elements of

aggravated assault and told the jury that those elements were for the crime of second degree

murder, that being the same crime for which Defendant was convicted. Defendant's 19125(b)

statement, Issue 6.

It is suggested that each of these claims should be deemed waived because no objections

were made of record when the alleged errors occurred. The law is clear that issues not preserved

in the lower court cannot be raised for the first time on appeal and are waived. Pa.R.A.P. 302(a);

Commonwealth v. Duffy, 911 A.2d 147, 158 (Fa. Super. 2006) ("A defendant must make a

timely and specific objection at trial or face waiver of her issue on appeal.").

If they are deemed not to have been waived, it is clear that these claims warrant no relief

and it is suggested that they be found lacking in merit. With respect to Issue 3, Dr. Gulino

testified that he personally reviewed the case file regarding the homicide herein, which included

autopsy report and autopsy photographs and case file, and that he had reached his own

independent conclusions about the victim's cause of death. It has long been established that a

medical examiner may give an independent opinion on cause and manner of death based on

information of the kind such experts customarily rely on in the practice of their profession. E.g.,

Commonwealth v. Vandivner, 962 A.2d 1170, 1178-1180 (Pa. 2009); Pa.R.E. 703. Here, because

Dr. Gulino was available for cross-examination, gave independent testimony about the cause of

the victim's death, and offered no testimony about defendant's involvement in the murder, his

testimony did not violate defendant's right of confrontation.

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With regard to defendant's fourth issue, this Court was unable to find any authority

governing when a waiver colloquy must be conducted. Moreover, defendant cannot establish

what prejudice inured to him by conducting the colloquy before the Commonwealth rested.

Defendant's fifth issue, had it not been waived, would not entitle him to relief. Improper

vouching occurs "(1) when the prosecution places the prestige of the government behind the

witness by personal assurances of the witness' veracity and (2) when the prosecution· indicates

that information which is not before the jury supports the witness' testimony." Commonwealth v.

Reed, 446 A.2d 311, 314 (Pa. Super. 1982). The former type of vouching occurs when a

prosecutor expresses her opinion as to a witness's credibility. Id. The latter occurs when a

prosecutor indicates that there is information known to her, beyond that which is before the jury,

which tends to verify a witness' credibility. Id.

Instantly, the testimony cited by defendant did not violate the rule against vouching. It is

clear that the testimony was presented to demonstrate how and why authorities decided to arrest

Jones and defendant. Nowhere in the testimony did the prosecution vouch for the credibility of

one of its witnesses or present information about which the jury was unaware to bolster the

credibility of any of its witnesses.

Finally, there was no error in the Court's jury charge. When evaluating the propriety of

jury instructions, the charge must be read in its entirety. Commonwealth v. Paddy, 800 A.2d 294,

321 (Pa. 2002); Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990). Contrary to

defendant's analysis, error may not be predicated on isolated excerpts of the charge; it is the

general effect that controls. Commonwealth v. Williams, 732 A.2d 1167, 1187 (Pa. 1999);

Commonwealth v. Mason, 518 A.2d 282, 291 (Pa. Super. 1986). "A trial court has wide

discretion in phrasing jury instructions, and absent an abuse of discretion or an inaccurate

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statement of law, there is no reversible error." Commonwealth v. Wesley, 753 A.2d 204, 210

(Pa. 2000). In fact, the trial court may use its own form of expression as long as the law is

presented clearly, adequately, and accurately. Commonwealth v. Chambers, 807 A.2d 872, 882

(Pa. 2002).

Even a cursory review of the jury instruction complained of shows that there is no merit

to the claim. The Court, in defining the crime of second degree murder simply defined the

necessary elements of that crime, which included the crime of robbery, the underlying felony,

theft and serious bodily injury. The instructions were not confusing, misleading or legally

incorrect. Thus, no error occurred here.

Accordingly, if the Court should find that defendant did not waive review of his last four

issues, it is suggested that they de found lacking in merit.

CONCLUSION

For the foregoing reasons, the defendant's assertions of error should be dismissed for lack
of merit and the judgment of sentence entered in this matter should be affirmed.

By the Court,

DATE:

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