J-S06040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMONT YOUNG, :
:
Appellant : No. 3772 EDA 2016
Appeal from the Judgment of Sentence May 20, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0007926-2015
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2018
Lamont Young (“Young”) appeals from the judgment of sentence
entered following his convictions of possession of a firearm prohibited,
carrying a firearm without a license, carrying a firearm on a public street in
Philadelphia and conspiracy to possess a firearm.1 We affirm.
The trial court aptly summarized the facts underlying the instant appeal
as follows:
On July 3, 2015, shortly after midnight, Philadelphia Police
Officers Jared Rahill [(“Officer Rahill”)] and Patrick Quinn
[(“Officer Quinn”)] were patrolling in the area of the 300 block of
Kensington Avenue in Philadelphia[,] when they observed a
vehicle with an inoperable taillight. Officer Rahill submitted the
license plate number to police radio for investigation and was
advised that the insurance and registration for the vehicle had
been cancelled. Based on the report of these cancellations and
the faulty taillight, the officers had the driver of the vehicle pull
over.
____________________________________________
1 18 Pa.C.S.A. §§ 6105, 6106, 6108, 903.
J-S06040-18
After the vehicle was pulled over, Officer Rahill exited his
patrol vehicle and approached the passenger side of the stopped
vehicle[,] at which time he observed [Young] in the driver’s seat,
[his co-defendant, Jamel Bailey (“Bailey”),] in the front passenger
seat, and [co-defendant Robert Pratt (“Pratt”)] in the vehicle’s
rear seat. Bailey and Pratt appeared to be nervous[;] [Young]
kept turning around[;] and all three men were moving around a
lot in their seats.
The officer also observed[,] under the front driver’s seat[,]
the magazine of a firearm sticking out of a white plastic bag. Upon
observing the magazine, Officer Rahill alerted Officer Quinn to the
presence of the gun magazine and then recovered the white bag,
which[,] he discovered[,] contained an Uzi Cobra with an
extended magazine.
As a result of the discovery of the firearm, the two officers
first removed [co-]defendant Pratt from the vehicle[,] and then
[Young,] who briefly struggled with the officers before he was
handcuffed. They then removed Bailey from the front passenger
seat.
Once the officers removed the three defendants from the
vehicle, none of whom was licensed to possess a firearm, Officer
Quinn recovered a loaded [.]38 Special handgun from the vehicle’s
glove box. The defendants were placed under arrest[,] and the
items recovered were recorded on a property receipt.
Trial Court Opinion, 3/9/17, at 2-3.
Young was arrested and charged with the above-described crimes.
Young filed a pre-trial suppression Motion, which the trial court denied. The
case proceeded to a bench trial, after which the trial court found Young guilty
of the above-described charges. The trial court subsequently sentenced
Young to an aggregate prison term of five to ten years, followed by a five-
year term of probation. Young filed a post-sentence Motion, which the trial
court denied. Although Young did not immediately file an appeal, his appeal
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J-S06040-18
rights were reinstated after he filed a Petition for Relief pursuant to the Post
Conviction Relief Act.2 This appeal followed.
Young presents the following questions for our review:
I. Was the evidence sufficient to sustain [Young’s] convictions
under counts 1, 2, 3 and 4, violations under title 18, Uniform
Firearms Act, sections 6105, 6106, 6108, and conspiracy?
II. [Were Young’s] convictions under counts 1, 2, 3 and 4,
violations under title 18, Uniform Firearms Act, sections
6105, 6106, 6108, and conspiracy under section 6106
against the weight of the evidence?
Brief for Appellant at 7 (some capitalization omitted).
Young first challenges the sufficiency of the evidence underlying his
convictions. Id. at 11. Young argues that his mere presence in an automobile
containing firearms is not sufficient to infer that he had knowledge or
constructive possession of the firearms. Id. at 12. According to Young,
the inference relied on by the trial court that because [Young] was
driving the vehicle, he was therefore presumed to have known of
the existence of a firearm at the feet of a rear passenger, and in
the glove compartment of a vehicle he did not own, is a fallacious
conclusion because there are other equally plausible inferences
with regard to the co-defendants and the actual owner of the
vehicle.
Id. Young further points out that there is no evidence that he made
movements toward the firearms. Id. at 13. Finally, Young argues that there
is no evidence that would sustain his conviction of criminal conspiracy. Id.
____________________________________________
2 42 Pa.C.S.A. §§ 9541-9546.
-3-
J-S06040-18
According to Young, there is no evidence that he had agreed to illegally
possess a firearm, with his co-defendants, without a license. Id. at 13-14.
In its Opinion, the trial court addressed Young’s challenge to the
sufficiency of the evidence underlying his convictions, and concluded that the
claim lacks merit. See Trial Court Opinion, 3/9/17, at 10-13. We agree, and
affirm on the basis of the trial court’s Opinion with regard to this claim. See
id.
Young also challenges the verdicts as against the weight of the evidence.
Brief for Appellant at 14. In this regard, Young “incorporates by reference”
the arguments he made challenging the sufficiency of the evidence. Id.
Young again argues that the only evidence of his guilt was that he was present
in a vehicle in which firearms were found. Id.
In its Opinion, the trial court set forth the appropriate standard of
review, addressed Young’s claim, and concluded that it lacks merit.3 See Trial
Court Opinion, 3/9/17, at 13-14. We agree with the sound reasoning of the
trial court, and discern no abuse of discretion in its rejection of Young’s claim.
See id. Therefore, we affirm on the basis of the trial court’s Opinion with
regard to Young’s challenge to the verdict as against the weight of the
evidence. See id.
Judgment of sentence affirmed.
____________________________________________
3 We note that Young preserved a challenge to the weight of the evidence by
filing a post-sentence Motion.
-4-
J-S06040-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/18
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::, IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION-CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA : PHILADELPHIA COURT
: OF COMMON PLEAS
: CRIMINAL TRIAL DIVISION
v. : CP-51-CR-0007926-2015
CP-51-CR-0007926-2015 Comm v Yoong, Lamont
Opinion
LAMONT YOUNG
IIHlll 111111111111111 Received
7916757261
'UAR 09 2017
OPINION
MCCAFFERY, J
Lamont Young (hereinafter "Appellant") appeals from the judgment of sentence imposed
by this Court on May 20, 2016. For the reasons set forth below, it is suggested that the judgment
of sentence be affirmed.
PROCEDURAL HISTORY
Following the denial of Appellant's Motion to Suppress Physical Evidence, this Court
held a waiver trial in the above-captioned matter on March 20, 2016, at the conclusion of which
this Court found Appellant guilty of Possession of a Firearm Prohibited, 18 Pa.C.S. § 6105,
Carrying a Firearm without a License, 18 Pa.C.S. § 6106, Carrying a Firearm on a Public Street,
18 Pa.C.S. § 6108, and Conspiracy to Possess a Firearm, 18 Pa.C.S. § 903.1 On May 20, 2016,
this Court imposed an aggregate sentence of five to ten years' incarceration upon Appellant
followed by a term of probation of five years. Appellant thereafter filed a Motion for
Reconsideration of sentence, which this Court denied on June 10, 2016. Appellant did not file a
notice of appeal following the denial of that motion.
I
Appellant was tried together with co-defendants Robert Pratt and Jamel Bailey.
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On July 14, 2016, Appellant filed a petition pursuant to the Post-Conviction Relief Act,
42 Pa.C.S. § 9541 et seq., requesting that his appellate rights be reinstated. On October 28,
2016, this Court granted the petition and on November 15, 2016, Appellant filed a Notice of
Appeal nunc pro tune. He thereafter filed a court ordered Pa.RAP. 1925(b) statement. In his
1925(b) statement, Appellant argues that his sentence is unconstitutional because it amounts to
cruel and unusual punishment, the Court abused its sentencing discretion because it did not
consider Appellant's extensive mitigating evidence, the evidence was insufficient to sustain the
charges, and the verdict was against the weight of the evidence.
FACTUAL HISTORY2
On July 3, 2015, shortly after midnight, Philadelphia Police Officers Jared Rahill and
Patrick Quinn were patrolling in the area of the 300 block of Kensington A venue in Philadelphia
when they observed a vehicle with an inoperable taillight. (N.T. 3/14/16, 7-8). Officer Rahill
submitted the license plate number to police radio for investigation and was advised that the
insurance and registration for the vehicle had been cancelled. (N.T. 3/14/16, 9). Based on the
report of these cancellations and the faulty taillight, the officers had the driver of the vehicle pull
over. (N.T. 3/14/16, 10, 37-38).
After the vehicle was pulled over, Officer Rahill exited his patrol vehicle and approached
the passenger side of the stopped vehicle at which time he observed Appellant in the driver's
seat, defendant Bailey in the front passenger seat, and defendant Pratt in the vehicle's rear seat.
(N.T. 3/14/16, 11, 13). Bailey and Pratt appeared to be nervous, Appellant kept turning around
and all three men were moving around a lot in their seats. (N.T. 3/14/16, 11, 13, 16, 81).
The officer also observed under the front driver's seat the magazine of a firearm sticking
out of a white plastic bag. (N.T. 3/14/16, 11, 13). Upon observing the magazine, Officer Rahill
2The
non-hearsay testimony elicited during the suppression hearing was incorporated into the trial record.
2
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alerted Officer Quinn to the presence of the gun magazine and then recovered the white bag,
which he discovered contained an Uzi Cobra with an extended magazine. (N.T. 3/14/16, 11).
As a result of the discovery of the firearm, the two officers first removed defendant Pratt
from the vehicle and then Appellant who briefly struggled with the officers before he was
handcuffed. (N.T. 3/14/16, 13-14). They then removed Bailey from the front passenger seat.
(N.T. 3/14/16, 15).
Once the officers removed the three defendants from the vehicle, none of whom was
licensed to possess a firearm, Officer Quinn recovered a loaded 38 Special handgun from the
vehicle's glove box. (N.T. 3/14/16, 16, 85-86, 96-97). The defendants were placed under arrest
and the items recovered were recorded on a property receipt. (N.T. 3/14/16, 86).3
Appellant testified in his own defense. He stated that during the evening before he was
stopped and arrested he drove Bailey around in a car belonging to Susan Winston, Appellant's
girlfriend, as Bailey ran some errands. (N.T. 3/14/16, 98-104). At some point, Bailey received
a phone call from Pratt, a friend of his, who asked Bailey if Bailey could pick him up. (N.T.
3/14/16, 103). Bailey asked Appellant, who often used Ms. Winston's car as an illegal taxi, if he
would pick up Pratt, and Appellant agreed to do so. (N.T. 3/14/16, 103-104).
After he picked up Pratt, Appellant left Bailey and Pratt alone in the car so he could
purchase condoms for Bailey and some sodas. (N.T. 3/14/16, 104). Appellant denied knowing
anything about the guns in the car or how they got into the car and explained that he struggled
with Officer Rahill because the officer pulled his arm through the half opened driver's window.
(N.T. 3/14/16, 106-109, 114-115, 119). He further stated that Pratt carried the white bag into
3
The Commonwealth also presented evidence by way of stipulation indicating that Appellant had a prior conviction
that prohibited him from possessing a firearm and that the firearms were operable. (N.T. 3/14/16, 96, 122).
3
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(4) the issue must be included within a concise statement of the reasons for allowance of appeal
which demonstrates a substantial question that the sentence imposed was not appropriate under
the sentencing code. 42 Pa.C.S. § 9781(b); Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.
Super. 2014). While it appears Appellant properly preserved the issues he raised, it is suggested
that he is not entitled to relief because he has failed to raise a substantial question.
When a sentence is within the guideline ranges, it must be determined whether the
sentence is "clearly unreasonable." 42 Pa. C.S.A. § 9781(c)(2). Commonwealth v. Dodge, 957
A.2d 1198, 1200 (Pa. Super. 2008). The reasonableness inquiry is based in part on the factors set
forth in 42 Pa. C.S.A. § 978l(d). Under that statute, the reviewing court must consider the nature
and circumstances of the offense and the history and characteristics of the defendant; the
opportunity of the sentencing court to observe the defendant, including any presentence
investigation; the findings upon which the sentence was based; and the guidelines promulgated
by the commission. Id.; Dodge, supra. In addition, a sentence may be unreasonable if the
sentencing court fails to consider the factors set forth in 42 Pa. C.S.A. § 972l(b): i.e., the
protection of the public; the gravity of the offense in relation to the impact on the victim and the
community; and the rehabilitative needs of the defendant. Walls, supra.
Finally, the Superior Court has stated that, "allegations that the sentencing court 'failed to
consider' or 'did not adequately consider' various factors does not raise a substantial question
that the sentence was inappropriate." Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super.
2013 (citing Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011)); accord
Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) ("[A]n allegation that the
sentencing court 'failed to consider' or 'did not adequately consider' various factors is, in effect,
a request for this Court to substitute its judgment for that of the lower court in fashioning [an
8
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a]ppellant's sentence. Such an allegation does not raise a substantial question that the sentence
imposed was in fact inappropriate.") (quoting Commonwealth v. Rivera, 637 A.2d 1015, 1016
(Pa. Super. 1994)); see Commonwealth v. Rhoades, 8 A.3d 912, 918-19 (Pa. Super. 2010) ("an
allegation that the sentencing court failed to consider mitigating factors generally does not raise a
substantial question for our review."); Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (same).
Under these standards, it is suggested that Appellant did not raise a substantial question.
As noted above, the failure to consider mitigating evidence or the consideration of permissible
factors as those set forth in the Commonwealth's sentencing memorandum do not raise
substantial questions. Even if they did, the sentence imposed here was not unreasonable or an
abuse of discretion because all of the factors above were considered when this Court fashioned
its sentence. This Court carefully considered the information in the pre-sentence reports and that
presented by Appellant during the sentencing hearing and thus, was well aware of Appellant's
personal history.
Finally, the law is clear that "where the sentencing court imposed a standard-range
sentence with the benefit of a pre-sentence report, [an appellate court] will not consider the
sentence excessive." Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citing
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Accordingly, for all of the foregoing reasons it is suggested that the instant claim be
deemed lacking in merit because it is clear that the sentence imposed herein did not constitute an
abuse of discretion because the sentence is not excessive under the circumstances and the Court
considered all of the required factors in fashioning Appellant's sentence. See Commonwealth v.
9
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Griffin, 804 A.2d 1 (Pa. Super. 2002) (where a judge who makes a discretionary sentencing
decision has been fully informed of pertinent facts, his discretion should not be disturbed).
Appellant next contends that the evidence presented at trial by the Commonwealth was
insufficient to sustain the charges. Appellant failed, however, to state why he believes the
evidence was insufficient. Thus, it is suggested that the claim be deemed waived because
Appellant 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 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, even had Appellant set forth the elements that were not proven, no relief
need be granted. A claim that the evidence was insufficient to support a conviction is a question
of law. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). When reviewing the
sufficiency of the evidence, the reviewing court must determine whether the evidence believed
by the factfinder was sufficient to support the verdict. Commonwealth v. Ratsamy, 934 A.2d
1233, 1236 (Pa. 2006). All evidence must be viewed in the light most favorable to the verdict
10
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wmner. Id. at 1237 (quoting Commonwealth v. Weiss, 776 A.2d 958, 963 (Pa. 2001)); see
Commonwealth v. Boczkowski, 846 A.2d 75, 80 (Pa. 2004). Both direct and circumstantial
evidence, along with all reasonable inferences arising therefrom, which the finder of fact could
properly have based its verdict, must be accepted as true and sufficient to support the challenged
conviction. Commonwealth v. Perez, 931 A.2d 703, 706-07 (Pa. Super. 2007). The finder of
fact may believe all, part, or none of the evidence regarding the question of whether reasonable
doubt existed, and the facts and circumstances need not be incompatible with the defendant's
innocence. Commonwealth v. Derr, 841 A.2d 558, 559 (Pa. Super. 2004).
Applying the foregoing to the firearms offenses, the law provides that where possession
rs an element of a crime, possession may be proven by actual possession, constructive
possession, or joint constructive possession. See Commonwealth v. Gutierrez, 969 A.2d 584 (Pa.
Super. 2009). Thus, when police do not find a firearm in a defendant's actual possession, a
defendant may still be convicted of the possession of the firearm if the Commonwealth
establishes that the defendant constructively possessed the firearm. See Commonwealth v.
Brown, 48 A.3d 426 (Pa. Super. 2012).
The Commonwealth presented sufficient evidence to support Appellant's convictions
under a theory of constructive possession.6 In Brown, supra, the Superior Court discussed the
constructive possession, stating:
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. Constructive
possession is an inference arising from a set of facts that possession
of the contraband was more likely than not. We have defined
6
To successfully obtain a conviction under 18 Pa.C.S. § 6106, the Commonwealth must prove that the accused
carried a firearm on or about their person without a valid and lawfully issued firearms license. Commonwealth v.
Bavusa, 750 A.2d 855, 857 (Pa. Super. 2000). For a conviction under 18 Pa.C.S. § 6108, the Commonwealth must
prove that the defendant carried an unlicensed firearm, rifle, or shotgun within the city of Philadelphia. Id. Finally,
Section 6105 provides that a person who has been convicted of any of several enumerated felonies, including
burglary, "shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control,
sell, transfer or manufacture a firearm in this Commonwealth." 18 Pa.C.S. § 6105 (a)(I).
11
.... iii t II
constructive possession as "conscious dominion." We subsequently
defined "conscious dominion" as "the power to control the
contraband and the intent to exercise that control." To aid
application, we have held that constructive possession may be
established by the totality of the circumstances.
Brown, 48 A.3d at 430 ( quotation omitted).
Here, although Appellant did not physically possess the firearms when police
apprehended him, the Commonwealth nonetheless proved that he was in constructive possession
of them because Appellant was in control of the vehicle at the time the guns were discovered and
Appellant's behavior and reactions upon being stopped by police exhibited consciousness of
guilt. The evidence showed that he was moving about in his seat and kept looking behind him
upon being stopped by police, which was sufficient to create an inference of guilt. (N.T.
3/14/16, 81). See Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004) ("The conduct of an
accused following a crime, including manifestations of mental distress, is admissible as tending
to show guilt") (internal quotation marks and citation omitted); Commonwealth v. Sanchez, 610
A.2d 1020, 1027 (Pa. Super. 1992) (a defendant's conduct evidencing fear or mental distress is
admissible to show consciousness of guilt), appeal denied, 620 A.2d 940 (Pa. 1993).
Moreover, given that the Uzi was clearly visible as it was sticking out of the bag and the
hand gun was in the vehicle controlled by Appellant, in easy reach of him, it can be inferred
Appellant had knowledge of the presence of the weapons in the car and that he could have
exercised dominion and control over them. See Commonwealth v. Mudrick, 507 A.2d 1212,
1214 (Pa. 1986) (joint possession of contraband is possible where contraband is accessible and
apparent to more than one individual).
Accordingly, if Appellant's attack on the sufficiency of his weapons convictions is found
not to have been waived, it is suggested that the claim be deemed lacking in merit.
12
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Regarding Appellant's conspiracy conviction, he contends that the evidence was
insufficient and that he could not be convicted of Conspiracy to Possess a Firearm without a
License because the Commonwealth failed to prove that he formed an agreement with another
person the object of which was to possess a firearm without a license. No relief should be
granted with respect to this claim because a review of the Bills of Information filed in this case
indicates that Appellant was charged with Conspiracy to Possess a Firearm while prohibited
from doing so and not Possession of a Firearm without a License. Consequently, because
Appellant was not convicted of conspiring to possess a firearm without a license, it is clear that
the premise of Appellant's claim is incorrect and therefore, the issue should be found to lack
merit.
Appellant's final claim contends that the verdicts shock the conscience and thus, were
against the weight of the evidence because he presented credible evidence that he knew nothing
about the presence of the guns in the vehicle. 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 convict ion 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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and citations omitted); see
also Commonwealth v. Sanchez, 36 .3d 24, 27 (Pa. 2011) (stating that "[r]elief on a weight of the
evidence claim is reserved for extraordinary circumstances, when the jury's verdict is so contrary
13
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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
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). Moreover, the grant of a new trial is not required because of conflicting
testimony. Commonwealth v. Widmer, 744 A.2d 745, 754 (Pa. 2000). See, e.g., Commonwealth
v. Edney, 439 A.2d 752. 754 (Pa. Super.1982): Commonwealth v. Larew, 432 A.2d 1037, 1038
(Pa. Super. 1981)
Here, this Court's decision to believe the Commonwealth's witnesses' testimony does not
shock the conscience. See Commonwealth v. Johnson, 668 A.2d 97. 102 (Pa. 1995) (weight of
the evidence argument based solely on contradictory testimony lacked merit); Commonwealth v.
Brown, 648 A.2d 1177. 1192 (Pa. 1994) (contradictory testimony did not establish a weight of
evidence claim where nothing in the record shocked the conscience). In addition, this Court did
not find the testimony of Appellant and his witness credible. Thus, because credibility
determinations rested with this Court, sitting as fact-finder, it is suggested that no relief is due
Appellant on this claim.
14
..... pg
CONCLUSION
Based on the foregoing, it is respectfully suggested that the judgment of sentence entered
in this matter against Appellant be affirmed.
BY THE COURT,
Date: 3}'1/Jo/�
15
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CERTIFICATION OF SERVICE
I, James Molinari, Esquire, Law clerk to the Honorable Daniel D. McCaffery
hereby certifies that on the Cjt..rS day of March 2017, by first class mail, postage prepaid, a
true and correct copy of the attached opinion was served upon the following:
Brian F. Humble, Esquire
1225 Locust Street
Philadelphia, Pa. 19107
Hugh Bums, Esquire
Chief-Appeals Unit
Office of the Philadelphia
District Attorney
Three South Penn Square
Philadelphia, PA 19107
J
16