J-S83021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OCTAVIN JONES :
:
Appellant : No. 2638 EDA 2016
Appeal from the Judgment of Sentence August 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005723-2013
BEFORE: GANTMAN, P.J., OLSON and DUBOW, JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 08, 2018
Appellant, Octavin Jones, appeals from the judgment of sentence
entered on August 8, 2016, as made final by the denial of his post-sentence
motion that same day. We affirm.
The factual background of this case is as follows. On March 16, 2013,
Appellant sprayed Khaliq Poles (“Poles”) and Niger Connelly (“Connelly”) with
vodka while at the Aura nightclub. Poles and Connelly confronted Appellant
who then called over several of his friends. One of these friends punched
Poles and a fight ensued. Eventually, Poles made it to his vehicle. Appellant
then entered the front passenger seat of a second vehicle and fired multiple
shots at Poles while the vehicle fled the scene. Poles was not struck by the
gunfire.
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The procedural history of this case is as follows. On March 17, 2016,
the Commonwealth charged Appellant via criminal information with eight
offenses, inter alia, aggravated assault1 and conspiracy to commit aggravated
assault.2 On March 24, 2016, Appellant was convicted of those two offenses.
On August 8, 2016, the trial court sentenced Appellant to an aggregate term
of 7 to 18 years’ imprisonment. After the trial court pronounced the sentence,
Appellant orally moved for a new trial based on the weight of the evidence.
The trial court denied the oral post-sentence motion. This timely appeal
followed.3
Appellant presents five issues for our review:
1. [Was the evidence] insufficient to establish that Appellant
attempted to cause serious bodily injury to [Poles]?
2. [Was the evidence] insufficient to establish that Appellant
conspired to cause serious bodily injury to [Poles]?
3. Did the [trial] court [abuse its] discretion by denying Appellant’s
post-sentence motion asserting that [his] conviction for
aggravated assault was against the weight of the evidence when
the Commonwealth’s witnesses at trial gave inconsistent
testimony regarding the identity of the shooter?
1 18 Pa.C.S.A. § 2702(a)(1).
2 18 Pa.C.S.A. §§ 903, 2702.
3 On August 22, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). Appellant did not file a timely concise statement. This
Court, therefore, remanded the case with instructions to file a concise
statement. On February 17, 2017, Appellant filed a concise statement. On
June 28, 2017, the trial court issued its Rule 1925(a) opinion. Appellant
included all of his appellate issues in his concise statement.
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4. Did the [trial] court [abuse its] discretion by denying Appellant’s
post-sentence motion asserting that [his] conviction for
conspiracy to commit aggravated assault was against the weight
of the evidence when [Appellant’s co-conspirator] was . . .
acquitted of all charges including conspiracy to commit
aggravated assault?
5. Did the [trial] court [abuse its] discretion by sentencing Appellant
to [7 to 18 years’ imprisonment] when the sentencing guidelines
called for [five to six years’] incarceration?
Appellant’s Brief at 4-5 (complete capitalization removed).
Appellant’s first two issues challenge the sufficiency of the evidence.
“The determination of whether sufficient evidence exists to support the verdict
is a question of law; accordingly, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Johnson, 160 A.3d 127,
136 (Pa. 2017) (citation omitted). In assessing Appellant’s sufficiency
challenge, we must determine “whether viewing all the evidence admitted at
trial in the light most favorable to the [Commonwealth], there is sufficient
evidence to enable the fact-finder to find every element of the crime beyond
a reasonable doubt.” Commonwealth v. Grays, 167 A.3d 793, 806 (Pa.
Super. 2017) (citation omitted). “[T]he facts and circumstances established
by the Commonwealth need not preclude every possibility of innocence. . . .
[T]he finder of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part[,] or none of the
evidence.” Commonwealth v. Waugaman, 167 A.3d 153, 155–156 (Pa.
Super. 2017) (citation omitted).
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In order to prove the aggravated assault charge, the Commonwealth
was required to show that Appellant (1) attempted to cause serious bodily
injury to another (2) intentionally, knowingly, or recklessly under
circumstances manifesting extreme indifference to the value of human life.
18 Pa.C.S.A. § 2702(a)(1). Appellant contends the evidence was insufficient
to prove that he fired the shots. In other words, he argues that he did not
attempt to cause Poles serious bodily injury. This argument is without merit.
Sergeant David Ayres, an off-duty police officer who witnessed the shooting,
testified that Appellant fired the shots. This evidence alone was sufficient to
prove that Appellant was the person who fired at Poles.
Appellant cites several cases, including Commonwealth v. Bennett,
303 A.2d 220 (Pa. Super. 1973) and Commonwealth v. Karkaria, 625 A.2d
1167 (Pa. 1993), in support of his argument that contradictory evidence
presented at trial was insufficient to establish guilt. Bennett and Karkaria,
however, are distinguishable from the case at bar. In Bennett, the only
witness who testified against the defendant continually changed his story and
gave contradictory testimony as to the “essential issues” in the case.
Bennett, 303 A.2d at 221 (citation omitted). Thus, this Court found that the
evidence was insufficient to convict Bennett. In Karkaria, the Commonwealth
relied on the testimony of the complainant. Karkaria, 625 A.2d at 1168 (“The
Commonwealth’s case-in-chief rested upon the testimony of the
complainant[.]”). The complainant’s statements and testimony repeatedly
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contradicted each other from the time the investigation began through trial.
Thus, our Supreme Court found that the evidence was insufficient to convict
Karkaria.
In the case at bar, there were no intra-witness contradictions regarding
Appellant being the shooter. As such, Bennett and Karkaria are inapposite.
Viewed correctly, Appellant’s sufficiency claim is more accurately
characterized as a challenge to the credibility and believability of the
testimony presented at trial. These challenges are directed at the weight, not
the sufficiency of the evidence. See Commonwealth v. Lopez, 57 A.3d 74,
80-81 (Pa. Super. 2012), appeal denied, 62 A.3d 379 (Pa. 2013). Hence, we
conclude that there was sufficient evidence to convict Appellant of aggravated
assault.
In his second issue, Appellant argues that the evidence was insufficient
to convict him of conspiracy to commit aggravated assault. In order to convict
a defendant of conspiracy to commit an offense, “the Commonwealth must
establish the defendant: 1) entered into an agreement to commit or aid in an
unlawful act with another person or persons; 2) with a shared criminal intent;
and 3) an overt act was done in furtherance of the conspiracy.”
Commonwealth v. Dantzler, 135 A.3d 1109, 1114 (Pa. Super. 2016) (en
banc) (cleaned up). “[A] conspiracy may be inferred where it is demonstrated
that the relation, conduct, or circumstances of the parties, and the overt acts
of the co-conspirators sufficiently prove the formation of a criminal
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confederation.” Commonwealth. v. Orie Melvin, 103 A.3d 1, 43 (Pa. Super.
2014) (citation omitted).
In this case, there was overwhelming circumstantial evidence
supporting Appellant’s conviction for conspiracy to commit aggravated
assault. When Appellant got into a confrontation with Poles and Connelly, he
called his friends over and those friends proceeded to punch Poles. When they
exited the nightclub, Appellant entered the passenger seat of a vehicle. After
Appellant opened fire, the person driving the vehicle immediately sped away
in an attempt to evade detection and/or apprehension. A logical conclusion
from this circumstantial evidence is that Appellant entered into a conspiracy
with the driver of the vehicle to shoot at Poles.
Appellant’s other arguments related to the sufficiency of the evidence
for the conspiracy conviction are wholly unpersuasive. The exact number of
individuals involved in the conspiracy and whether they were apprehended is
immaterial to proving that a conspiracy existed and that Appellant was a
member of that conspiracy. Similarly, the identity of every co-conspirator
does not need to be shown in order to prove a conspiracy. Instead, the
Commonwealth was only required to prove that Appellant entered into a
conspiracy with at least one other person to shoot at Poles. As noted above,
the Commonwealth produced such evidence. Accordingly, there was sufficient
evidence to convict Appellant of conspiracy to commit aggravated assault.
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In his third and fourth issues, Appellant argues that the trial court
abused its discretion by denying his post-sentence motion based on the weight
of the evidence. “A new trial based on a weight of the evidence claim is only
warranted where the verdict is so contrary to the evidence that it shocks one’s
sense of justice.” Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super.
2017) (cleaned up). “[W]hen an appellate court reviews a weight claim, the
court is reviewing the exercise of discretion by the trial court, not the
underlying question of whether the verdict was against the weight of the
evidence.” Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017)
(citation omitted).
Appellant first contends that the aggravated assault conviction was
against the weight of the evidence. He argues that Sergeant Ayres’ testimony
was not credible for several reasons. First, he notes that an individual
standing next to Sergeant Ayres was unable to identify Appellant as the
shooter so it was impossible for Sergeant Ayres to have positively identified
Appellant. This argument is without merit. Sergeant Ayres, as a trained law
enforcement officer, would naturally focus on the shooter’s physical
characteristics so that he could later identify him.
Second, Appellant notes that Sergeant Ayres stated that there were six
casings in the parking lot but only five were found. There are many plausible
explanations for this “inconsistency.” One casing may have been kicked or
picked up by a bystander. Sergeant Ayres may have also simply miscounted.
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Either way, it did not affect the core of his testimony – that Appellant was the
shooter.
Finally, Appellant notes that he was acquitted of possession of a firearm
by a prohibited person and it was not possible for him to fire the rounds if he
did not possess the firearm. As this Court has stated,
inconsistent verdicts, while often perplexing, are not considered
mistakes and do not constitute a basis for reversal. Consistency
in verdicts in criminal cases is not necessary. When an acquittal
on one count in an [information] is inconsistent with a conviction
on a second count, the court looks upon the acquittal as no more
than the jury’s assumption of a power which they had no right to
exercise, but to which they were disposed through lenity.
Commonwealth v. Barnes, 167 A.3d 110, 120 (Pa. Super. 2017) (en banc)
(citation omitted). In this case, the jury chose not to convict Appellant of
possession of a firearm by a prohibited person as an act of lenity. It does not
indicate that the verdict was against the weight of the evidence.
The trial court viewed Sergeant Ayres’ testimony and determined that
convicting Appellant, based on that testimony, did not shock its sense of
justice. This was a reasonable determination in light of the evidence
presented at trial. Specifically, Poles testified that Appellant entered the
passenger seat of the vehicle parked next to him and that the gunfire came
from that vehicle. In other words, circumstantial evidence supported
Sergeant Ayres’ testimony. Accordingly, Appellant is not entitled to relief on
his third claim of error.
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Appellant also argues that his conspiracy conviction was against the
weight of the evidence. First, he contends that the Commonwealth failed to
provide any direct evidence of a conspiracy between Appellant and the driver
of the vehicle. As noted above, however, direct evidence of a conspiracy is
not required for a conspiracy conviction. Circumstantial evidence alone is
sufficient to prove a conspiracy existed. Orie Melvin, 103 A.3d at 43. As
detailed above, in this case the circumstantial evidence of a conspiracy was
overwhelming.
Appellant also notes that the driver of the vehicle was acquitted of
conspiracy. Appellant argues that this shows that his conviction for conspiracy
was against the weight of the evidence. This argument lacks merit. This
Court and our Supreme Court “have held that the acquittal of a defendant’s
sole alleged co-conspirator does not preclude prosecution and conviction of
that defendant on a conspiracy charge.” Commonwealth v. Fremd, 860
A.2d 515, 521 (Pa. Super. 2004), appeal denied, 889 A.2d 1213 (Pa. 2005)
(collecting cases). In this case, the trial court determined that the
Commonwealth failed to prove that the driver conspired with Appellant. It
concluded, however, that the jury’s finding that Appellant did conspire with
the driver did not shock its sense of justice. There is nothing inconsistent with
reaching both of these conclusions. Accordingly, we conclude that the trial
court did not abuse its discretion in denying Appellant’s post-sentence motion
with respect to the weight of the evidence.
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In his final issue, Appellant challenges the discretionary aspects of his
sentence. Pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
As this Court has explained, in order to reach the merits of a
discretionary aspects claim,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether Appellant preserved his [or her]
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; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the [S]entencing [C]ode.
Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa. Super. 2017)
(citation omitted). Appellant filed a timely notice of appeal, however, he failed
to preserve the issue before the trial court. He did not object to the
discretionary aspects of his sentence after the trial court announced the
sentence nor did he include a discretionary aspects claim in his oral post-
sentence motion. Accordingly, we do not reach the merits of his discretionary
aspects claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/18
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Com. v. Jones, O.
Combined Opinion