J -S96004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THEODORE CAMPBELL, JR.,
Appellant No. 1336 WDA 2015
Appeal from the Judgment of Sentence Entered May 28, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010668-2013
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 04, 2017
Appellant, Theodore Campbell, Jr., appeals from the judgment of
sentence of an aggregate term of 20 to 40 years' incarceration, followed by
5 years' probation, imposed after a jury convicted him of attempted murder,
aggravated assault, and recklessly endangering another person (REAP). On
appeal, Appellant contends that the jury's verdict was contrary to the weight
of the evidence presented at trial. After careful review, we affirm.
Appellant's convictions stemmed from his shooting Dorrian Glenn
during a drug deal. At Appellant's jury trial, Glenn testified that in April of
2013, he was familiar with Appellant because he would occasionally sell
marijuana to Appellant. N.T. Trial, 2/4/15-2/6/15, at 31-32.1 Glenn
1
We note that this was Appellant's second jury trial. His first trial, in
October of 2014, ended in a mistrial after Dorrian Glenn spontaneously
(Footnote Continued Next Page)
J -S96004-16
explained that on April 24, 2013, he agreed to meet Appellant at an
apartment building close to Glenn's home on Landis Street in Philadelphia to
sell Appellant "two or three ounces" of marijuana. Id. at 32-33, 34.
Appellant and Glenn arranged to meet at the second floor apartment
belonging to Appellant's cousin. Id. at 34.
Glenn testified that he arrived at the apartment unarmed and with the
marijuana. Id. Appellant let Glenn inside and, as they entered the living
room, Appellant and a "second guy ... pulled out guns...." Id. at 35. Glenn
testified that Appellant said, "Throw it off," which Glenn understood to mean
"give up what [he] had to them." Id. at 35, 65. Glenn "threw [his] hands in
the air" and "threw the bag [of marijuana] ... on the ground...." Id. at 38.
Glenn testified that he then "acted like [he] was getting down [on the floor]
and then [he] just took off running for ... the window." Id. Glenn stated
that as he ran for the window, Appellant and the second person started
shooting. Id. at 39. Despite Glenn's being hit by several bullets, he was
able to jump through the closed window, shattering the window's glass, and
then run to his house where his wife called an ambulance. Id. at 39. Glenn
sustained gunshot wounds to his chest, leg, and chin, and he also broke
both his wrists. Id. at 39-40.
(Footnote Continued)
stated, at the beginning of his testimony, that he did not want to testify
because it was putting his family in danger. See N.T. Trial, 10/23/14, at 60.
-2
J -S96004-16
Glenn testified that he did not recall speaking to police officers before
being taken to the hospital in an ambulance, but while hospitalized, he was
interviewed by police. Id. at 40. Glenn admitted that he initially lied to
them, telling the officers that he was "jumped somewhere else on Landis
Street[.]" Id. However, when confronted with the physical evidence
indicating the shooting had happened in the second floor apartment, Glenn
changed his story. This time, Glenn claimed that three individuals had
robbed him "on the landing" of the apartment building, and he had broken
away and run through the apartment before jumping out the window. Id. at
56. Glenn also gave officers a false description of the three purported
robbers. Id. at 56-57.
Glenn additionally conceded that he had falsely testified "[a]t a
previous hearing ... that [he was] actually shot at while on the landing and
[he was] robbed by three people...." Id. at 42. Glenn explained at trial that
he had initially lied to police because "where [he's] from, it's not good to be
known as a snitch." Id. at 41. Glenn stated that at the time he gave those
false accounts, he "didn't want to be part of the investigation, so [he] was
pretty much just saying anything." Id. He further explained that he has "a
wife, four kids and a grandson[,]" and that people know where he lives. Id.
at 57. Glenn testified that he felt that telling the truth would be "putting
people [he] love[s] in danger." Id. He also stated that his family members
were getting threats from "[d]ifferent people" because Glenn was
"snitching." Id. at 59. However, at the prompting of his wife, mother, and
- 3 -
J -S96004-16
father-in-law to "do the right thing," Glenn finally decided to identify
Appellant the third time he spoke to police. Id. at 58. At that interview,
Glenn picked Appellant and his cohort, Anthony Luster, from photographic
arrays. Id. at 58. On cross-examination, Glenn acknowledged that he was
testifying under a grant of immunity by the Commonwealth, so that he
would not be prosecuted for attempting to sell marijuana to Appellant. Id.
at 61, 70.
City of Pittsburgh Police Officer David Sisak also testified for the
Commonwealth. He stated that he was working on April 24, 2013, and he
responded to the report that Glenn had been shot. Id. at 73. Officer Sisak
testified that when he asked Glenn how he had been shot, Glenn said he was
"just walking down the sidewalk and two guys robbed him for no reason."
Id. at 74. Officer Sisak then went to the apartment building at 3111 Landis
Street and saw some bullet casings and glass on "a small sidewalk that goes
along the building...." Id. at 75, 76. Officer Sisak determined that the glass
"came from an upstairs window." Id. at 75. Officer Sisak went to the
second floor apartment where the broken window was located. Id. at 79-
80. In that apartment, the officer observed "more shell casings, and the
windowsill was shot. ... And the window was smashed out...." Id. at 80.2
2 The parties stipulated that a total of 12 cartridge casings were found at the
scene, and that the casings were fired by two different, 9 -millimeter guns.
Id. at 102-103.
-4
J -S96004-16
Officer Sisak testified that he returned to Glenn's home and told him that the
physical evidence did not align with his story that he was shot on the street.
Id. at 81. Glenn then changed his story and admitted he was shot in the
apartment.
Appellant also testified at his trial. He explained that he contacted
Glenn on April 24, 2013, to purchase marijuana. Id. at 119. He testified
that he agreed to meet Glenn at his cousin's apartment at 3111 Landis
Street. Id. at 121, 122. Anthony Luster accompanied Appellant to the
apartment. Id. at 121. Appellant testified that Glenn knocked on the
apartment door and Appellant told him to come inside. Id. at 125, 126.
Appellant stated that after he handed Glenn the money for the marijuana,
Glenn started to hand Appellant a bag that looked empty. Id. at 126.
According to Appellant, Glenn then reached into his pants pocket and pulled
out a gun. Id. at 127-128. Appellant then pulled out his gun and, as the
two men were pointing their guns at each other, "a shot went off." Id. at
129, 130, 131. Appellant testified that he did not know who fired the first
shot, but he began shooting as he ran into the bathroom. Id. at 131, 137.
After the shots stopped, Appellant and Luster ran out of the apartment
building. Id. at 137-138. Appellant testified that he never tried to steal
from Glenn, and he claimed that he had had no intention of killing Glenn or
causing him harm. Id. at 138.
At the conclusion of Appellant's trial, the jury convicted him of the
above -stated offenses. On May 28, 2015, the court sentenced him to an
- 5 -
J -S96004-16
aggregate term of 20 to 40 years' imprisonment, followed by 5 years'
probation. He filed a timely post -sentence motion challenging the weight of
the evidence supporting his convictions, which the court denied. Appellant
then filed a timely notice of appeal, and also timely complied with the trial
court's order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Herein, Appellant raises one issue for our review:
I. Did the trial court abuse its discretion by failing to find that
the guilty verdict was against the weight of the evidence when
the testimony presented by the only Commonwealth eyewitness
was inconsistent and so untrustworthy that to base a verdict on
this evidence was manifestly unreasonable?
Appellant's Brief at 5 (unnecessary capitalization and emphasis omitted)
To begin, we note that,
[a] claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one's sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge's
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
-6
J -S96004-16
Here, Appellant contends that the trial court abused its discretion by
rejecting his weight -of -the -evidence claim, where Glenn's testimony "was
inconsistent and incredible." Appellant's Brief at 15. Appellant stresses that
Glenn was the only Commonwealth eyewitness to testify at trial
regarding the events that occurred in the apartment and he was
the only eyewitness who refuted [Appellant's] claim of self-
defense. However, [] Glenn was extremely unreliable since he
continued to lie about what occurred and he admittedly
presented false testimony under oath in a prior court proceeding.
Id. at 16. Appellant also argues that his claim of self-defense was
supported by statements he made during a recorded prison phone call to a
female friend. According to Appellant, in light of that evidence supporting
his claim of self-defense, and the unreliability of Glenn's testimony, the court
should have granted him a new trial.
After assessing the evidence presented at Appellant's trial - and
considering, in particular, the testimony of Dorrian Glenn - we disagree with
Appellant that the court abused its discretion by denying his weight -of -the -
evidence claim. Admittedly, Glenn changed his account of the shooting at
least three times during the investigation, and he also admitted that he lied
under oath at a prior court proceeding. Additionally, Glenn was testifying
under a grant of immunity by the Commonwealth. However, the jury was
informed that Glenn only agreed to testify after being granted immunity, and
both defense counsel and the Commonwealth questioned Glenn extensively
about the fabricated stories he had provided to police during the
investigation. Glenn explained that he initially lied to police because he did
-7
J -S96004-16
not want to be known as a 'snitch.' He also stated that he feared for the
safety of his family, especially because some of his family members had
received threats.
In sum, the jury was clearly informed of the issues surrounding
Glenn's credibility, yet it chose to believe his testimony over that of
Appellant.3 In rejecting Appellant's weight -of -the -evidence claim, the trial
court declined to disturb that credibility determination by the fact -finder.
See Trial Court Opinion, 8/17/16, at 11. We ascertain no abuse of
discretion in the trial court's decision. See Commonwealth v. Boxley, 838
A.2d 608, 612 (Pa. 2003) (declining to "disturb the finder of fact's credibility
determinations" where the appellant had "raised [the] credibility issues at
trial, and they were weighed and rejected by the jury in reaching its
verdict").
Judgment of sentence affirmed.
3
Moreover, contrary to Appellant's argument, the jury was free to reject his
testimony that he acted in self-defense, even though statements he made in
a recorded prison phone call supported that claim.
-8
J -S96004-16
Judgment Entered.
J ._,eph D. Seletyn, Es .
Prothonotary
Date: 4/4/2017
-9