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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH JOHNSON, JR., :
:
Appellant. : No. 310 EDA 2018
Appeal from the Judgment of Sentence, September 19, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003055-2014,
CP-51-CR-0003056-2014, CP-51-CR-0003057-2014.
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 23, 2019
Keith Johnson, Jr. appeals from his judgment of sentence of life
imprisonment without the possibility of parole after a jury found him guilty of
first-degree murder, two counts of aggravated assault, possession of an
instrument of crime, and two violations of the Uniform Firearms Act. 1 After
careful review, we affirm.
The facts forming the basis of Johnson’s convictions were summarized
by the trial court as follows:
On the evening of July 19, 2011, Sabree Clinton, Terrell
Spencer, and Gary McClain were all sitting on the porch of 1919
North 32nd Street. As they were conversing [Spencer] noticed a
man, later identified as [Johnson], in a pink or orange hooded
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118 Pa.C.S.A. § 2502, 18 Pa.C.S.A. § 2702(a)(1), 18 Pa.C.S.A. § 907(a),
and 18 Pa.C.S.A. §§ 6106(a)(1) and 6108.
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sweatshirt approaching. [Johnson] crossed the street, took out a
handgun and began firing, striking each of the three victims.
[Clinton] attempted to flee but was struck in the leg by a
bullet before making it to the vestibule area. [Spencer] was shot
multiple times in his legs before losing the ability to walk and
collapsing. [Johnson] then turned to [McClain] and shot him in
the head, killing him. After killing [McClain], [Johnson] stated
‘that’s what you get.’ [Johnson] then fled towards Arlington
Street.
Officer Brian Quirple arrived at the crime scene just after
9:00 p.m. on July 19, 2011. The Officer attempted to question
[Spencer] but a crowd of approximately 75 people had formed,
shouting at [Spencer] to not answer any questions. As [Clinton]
was being transported to the hospital, he gave a description of the
man who had shot him. Yolanda Johnson was sitting on her porch
on Arlington Street at the time of the incident. She told police
that she heard shots fired, and shortly thereafter, saw a man
running past in a pink hooded sweatshirt and tan shorts. While
canvassing the neighborhood after the shooting, Officer Katie
Lankford found the sweatshirt in a nearby lot. She also observed
[Johnson] who matched the description given by [Clinton and Ms.
Johnson], wearing tan shorts pacing back and forth, watching her.
Lynn Haimowitz, a forensic scientist, tested the sweatshirt
on March 6, 2012 and found the DNA of at least three people, and
opined at trial that it was 22.99 times more likely that it was the
DNA of [Johnson] and two other people than that it was the DNA
of three random people.
During the investigation, [Spencer] identified [Johnson]
from a photographic array presented to him by detectives, stating
that he knew [Johnson] from his time playing basketball at the
local courts. At the subsequent trials, [Spencer] recanted his
identification of [Johnson]. During the instant trial, [Spencer]
identified [Johnson] as the shooter, and admitted that his
recantations at prior proceedings were due to his fear of being
labeled “a snitch”.
On February 26, 2013, while in custody for an unrelated
matter [Clinton] also identified [Johnson] as the shooter from a
photographic array. On August 26, 2013, [Clinton] described the
shooter as 22 years old, 5’10”, 155 pounds, and wearing a orange
sweatshirt, almost an exact match of defendant at the time of the
shooting. However, [Clinton] recanted his identification of
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[Johnson] at the prior trials and testified as a defense witness at
the instant trial.
The parties stipulated that [Johnson] was not licensed to carry a
firearm.
Trial Court Opinion, 4/25/18, at 2-3 (citations omitted).
A jury found Johnson guilty of first degree murder, two counts of
aggravated assault, possessing an instrument of crime and two violations of
the Uniform Firearms Act. 2 Thereafter, the trial court sentenced Johnson to
a term of life imprisonment without the possibility of parole. Johnson filed
post-sentence motions asking for a judgment of acquittal, arrest of judgment,
new trial and/or a modification of his sentence. The trial court denied the
motions. Johnson timely filed a notice of appeal on January 24, 2018.3 Both
Johnson and the trial court complied with Pa.R.A.P. 1925.
Johnson raises the following issues on appeal:
1. Whether the evidence produced at trial was sufficient, credible
and reliable to sustain the jury’s verdict of first degree murder,
firearms not to be carried without a license, firearms carried in
public, possessing an instrument of crime and aggravated
assault.
2. Whether the jury’s verdict finding Johnson guilty of first degree
murder, firearms not to be carried without a license, firearms
carried in public, possessing an instrument of crime and
aggravated assault was against the weight of the evidence.
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2 Two previous trials in this matter resulted in hung juries.
3 Because Johnson filed this single appeal on multiple dockets prior to June 1,
2018, Commonwealth v. Walker, 185 A.3d 969(Pa. 2018), does not apply
(directing quashal when a defendant files one notice of appeal on multiple
dockets after June 1, 2018).
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3. Did the trial court commit reversible error when it denied
Johnson’s post-sentence motion for arrest of judgment, for
judgment of acquittal and motion for a new trial when the trial
court concluded that the evidence presented at trial was
sufficient to sustain the jury verdicts on first degree murder
and related charges regarding McClain and the aggravated
assault charges related to the shooting of Spencer and Clinton
where the weight of the evidence presented at trial was
insufficient to sustain the verdicts.
See Johnson’s Brief at 5. 4
The Commonwealth contends that because Johnson conflates his
sufficiency of the evidence claim with the weight of the evidence claim and
fails to otherwise develop any other arguments related to sufficiency, his
sufficiency claim is waived. Commonwealth’s Brief at 6. Although Johnson
did not separate his argument on his sufficiency claim from his weight claim
as required by Pa.R.A.P. 2119, and his arguments overlap, we decline to find
waiver in this case. Unlike Commonwealth v. Birdseye, 627 A.2d 1036 (Pa.
Super. 1994), which the Commonwealth cites for support, Johnson’s
argument does not recite merely boiler plate language. He specifically claimed
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4 In his statement of issues, Johnson indicates that he is challenging the
possession of an instrument of crime and firearm convictions. However, in his
brief, Johnson does not specifically discuss either offense. He merely
mentions these “related charges” as an after thought. Johnson’s Brief at 16.
We therefore find that any issues related to those convictions are waived
because he failed to develop them. See Commonwealth v. A.W. Robl
Transport., 747 A.2d 400, 405 (Pa. Super. 2000).
Additionally, because Johnson’s last issue is dependent upon resolution
of his first two issues and is encompassed within them, we do not address it
separately.
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the Commonwealth failed to prove an essential element of these crimes and
makes arguments concerning both sufficiency and weight. Thus, we will
address both claims.
In his first issue, Johnson contends that the evidence was insufficient to
support his convictions for first degree murder and aggravated assault.
Consequently, the trial court erred in denying Johnson’s post-sentence motion
for acquittal. Id. at 13. We disagree.
Initially, we note our standard of review:
In reviewing a sufficiency of the evidence claim we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted). However, “the inferences must flow from facts and circumstances
proven in the record, and must be of such volume and quality as to overcome
the presumption of innocence and satisfy the jury of an accused's guilt beyond
a reasonable doubt.” Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa.
Super. 1991). “The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail even under
the limited scrutiny of appellate review.” Id. “Because evidentiary sufficiency
is a question of law, our standard of review is de novo and our scope of review
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is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).
With these principles in mind, we address Johnson’s sufficiency claim.
To prove first-degree murder, the Commonwealth must demonstrate
that the defendant acted with malice and a specific intent to kill, that a human
being was unlawfully killed, that the defendant committed the killing, and
that the killing was intentional, deliberate and premeditated.
Commonwealth v. Chamberlain, 30 A.3d 381, 394 (Pa. 2011); 18
Pa.C.S.A. § 2502 (emphasis added).
To prove aggravated assault, the Commonwealth must show that the
defendant attempted 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[.]”
18 Pa.C.S.A. § 2702 (emphasis added).
The elements of both offenses may be proven by circumstantial
evidence. See Commonwealth v. King, 721 A.2d 763, 770 (Pa. 1998)
(circumstantial evidence can itself be sufficient to prove any element or all of
the elements of criminal homicide); Commonwealth v. Cox, 686 A.2d 1279,
1285 (Pa. 1996), cert. denied, 522 U.S. 999 (1997); Commonwealth v.
Matthews, 870 A.2d 924, 929 (Pa. 2005) (circumstantial evidence sufficient
to prove aggravated assault).
Johnson’s main argument is that the Commonwealth failed to prove that
he was the actor who allegedly committed these crimes. Specifically, Johnson
argues that the evidence was insufficient to establish his identify as the one
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who shot and killed McClain, or the one who shot and injured Spencer and
Clinton. Johnson’s Brief at 6. According to Johnson, the evidence identifying
him as the shooter was weak, inconclusive, and speculative, at best. As such,
it was not sufficient to overcome the presumption of innocence. Johnson’s
Brief at 14.
Contrary to Johnson’s contention, our review of the record reveals that
the Commonwealth presented direct evidence that Johnson was the shooter.
Spencer was sitting on the porch with McClain and Clinton when the shooter
approached and started shooting. Spencer testified that he specifically
“noticed” the perpetrator approaching them. Having played basketball with
Johnson at the local courts, Spencer recognized Johnson as the shooter. At
trial, Spencer testified to this, and identified Johnson as the one who shot at
him, McClain, and Spencer.
Clinton also had identified Johnson as the shooter from a photographic
array during the investigation of the incident, but later recanted. This
evidence also was presented to the jury for its consideration.
Additionally, the Commonwealth presented circumstantial evidence that
corroborated Spencer and Clinton’s identification of Johnson as the shooter.
Both Spencer and Clinton testified that the shooter was wearing a pink or
orange hooded sweatshirt. Ms. Johnson further corroborated this, testifying
that she noticed a man wearing a pink hooded sweatshirt, white t-shirt and
tan shorts fleeing from the scene of the shooting. Officer Lankford saw
Johnson, dressed in a white t-shirt and tan shorts, a few hours after the
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shooting, watching as she recovered an abandoned pink sweatshirt nearby.
DNA collected from that sweatshirt indicated that it was 22.99 times more
likely to have come from Johnson and two other people than three random
people.
Nonetheless, Johnson contends that the evidence should have effected
a different outcome—his acquittal. Johnson’s Brief at 14. He relies on the
evidence presented in his defense: Clinton and Spencer did not have enough
time or opportunity to see the shooter; Clinton and Spencer were inconsistent
in their identification of Johnson as the shooter at different times; at the
instant trial, Clinton did not identify Johnson as the shooter and stated that
the shooter was wearing a different color of shorts than Johnson was seen
wearing the day of the incident; Clinton identified people in addition to or
other than Johnson in the photo array; Spencer did not identify Johnson as
the shooter at the lineup or during the first trial. Considering this testimony,
he claims the evidence was insufficient to establish that he was the shooter.
Johnson’s Brief at 15.
Johnson’s argument focuses solely on the identification evidence
presented in this case which favors him. However, in reviewing a sufficiency
challenge, this Court must view all of the evidence in the light most favorable
to the Commonwealth as the verdict winner. Koch, supra. Moreover,
Johnson is truly asking this Court to reweigh the evidence and substitute our
judgment for that of the fact finder. This we cannot do.
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Instead, viewing the evidence and all inferences therefrom in a light
most favorable to the Commonwealth, we find that there was sufficient
evidence to identify Johnson as the shooter and convict him of first degree
murder and aggravated assault. Johnson is not entitled to relief on his
sufficiency claim.
Johnson next contends that his conviction for first-degree murder and
aggravated assault was against the weight of the evidence. He relies on the
same testimony in support of his sufficiency claim. According to Johnson, the
evidence identifying him as the shooter was so unreliable it rendered the
verdict against the weight of the evidence, so as to shock one’s sense of
justice. For this reason, he contends that the trial court abused its discretion
in denying Johnson’s post-sentence motion for a new trial. Johnson’s Brief at
14-16. Again, we disagree.
When reviewing a challenge to the weight of the evidence, our standard
of review is as follows:
The essence of appellate review for a weight claim appears to lie
in ensuring that the trial court's decision has record support.
Where the record adequately supports the trial court, the
trial court has acted within the limits of its discretion.
***
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
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***
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. Appellate review of a weight claim
is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the
weight of the evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations
omitted) (emphasis added). Absent an abuse of discretion, the trial court’s
decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d
865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law.” Commonwealth v. West,
937 A.2d 516, 521 (Pa. Super. 2007). By contrast, a proper exercise of
discretion “conforms to the law and is based on the facts of record.” Id.
Initially, we note that Johnson fails to specify how the trial court abused
its discretion; he merely restates the contradictory evidence presented at trial.
Under a weight claim, mere conflict in testimony is not a sufficient basis to
grant a new trial. See Clay, 64 A.3d at 1055. Nevertheless, after a careful
review of the record and the trial court’s rationale for denying Henderson’s
post-sentence motion, we find that the trial court properly exercised its
discretion in concluding that the verdict was not against the weight of the
evidence.
In reaching its conclusion, the trial court acknowledged Johnson’s claims
regarding contradictory evidence. However, the trial court considered all of
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the evidence presented at trial relating to identification of the shooter, not just
the evidence favorable to Johnson. The trial court explained:
[Johnson] makes several specific factual contentions that he
claims render the identification evidence unreliable and, therefore
the verdict was against the weight of the evidence. The jury heard
in great detail the evidence and the testimony offered by both
witnesses. A jury’s role as fact-finder requires that it determine
credibility. Here, the jury had the opportunity to hear the evidence
and make credibility determinations. In rendering their verdict,
the jury made a judgment on credibility in favor of the
Commonwealth. This determination was one for the jury to make,
and should only be overturned “if it is so contrary to the evidence
as to shock one’s sense of justice.”
Trial Court Opinion, 4/25/28, at 10. The trial court did not find this here.
In fact, the trial court examined the identification evidence and observed
that it was detailed and specific. See id. As a result, the trial court even
declined to give the jury a cautionary Kloiber charge. 5 It stated:
Here, there were two witnesses to the homicide, but both recanted
their positive identification testimony during the initial trials.
However, this was not a case of mistaken identification, but rather
withdrawn identification, one of which was later given again by
[Spencer] at the instant trial. . . . [Spencer], however, made a
positive identification of [Johnson] at the instant trial and
admitted that he had lied out of fear during the previous trials.
Id. at 11.
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5 “A Kloiber charge as part of a jury instruction is not required when ‘the
opportunity for positive identification is good, [the] witness is positive in his
identification and his identification is not weakened but remains positive . . .
the testimony as to identification need not be received with caution and may
even be treated as a statement of fact.’” Id. (quoting Commonwealth v.
Kloiber, 106 A.2d 820 (Pa. 1954)).
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Moreover, when charging the jury, the trial court summarized the
identification evidence presented for its consideration. The court alerted the
jury to the potential issues with the identification evidence and provided
substantial guidance as to how to evaluate the inconsistences. Id. at 12.
Lastly, the trial court noted that, in addition to positive identification of
Johnson as the shooter, DNA evidence was presented to the jury which
implicated Johnson as the shooter. Id at 13.
Based upon the foregoing, we find that the trial court did not abuse its
discretion in concluding that the jury’s verdict convicting Johnson of first
degree murder and aggravated assault was not against the weight of the
evidence. Accordingly, Johnson is not entitled to relief on his weight claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/19
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