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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIE SPARROW,
Appellant No. 2240 EDA 2015
Appeal from the Judgment of Sentence June 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002859-2014
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 25, 2016
Willie Sparrow (“Appellant”) appeals from the judgment of sentence
imposed after the trial court convicted him of aggravated assault, simple
assault, recklessly endangering another person, possession of a prohibited
firearm, carrying a firearm without a license, carrying a firearm on a public
street, and possessing instruments of crime. After review, we affirm.
The trial court recounted the factual history, as follows:
On February 3, 2014, at about 12:00 a.m., Mr. Luis
Rodriguez and his wife were in the area of the 4300 block of
North 7th Street in Philadelphia sitting in his car waiting for his
son to return home when Mr. Rodriguez saw Appellant, someone
he knew for fourteen or fifteen years, driving north on 7th Street
with a Hispanic male. Mr. Rodriguez recognized both men
because they patronized a store Mr. Rodriguez formerly owned.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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After parking the car, Mr. Rodriguez helped his wife down the
street to their home because the street was snow covered. As
he and his wife were walking home, Mr. Rodriguez heard gun fire
and saw Appellant, who he knew by the name “Tall,” and the
Hispanic male, shooting toward him and his wife from a location
approximately five houses behind him. One of the bullets struck
Mr. Rodriguez in his leg.
After he was shot, Mr. Rodriguez grabbed hold of his car to
prevent himself from falling. Thereafter, his brother Angel and
his wife came to his assistance. The police and an ambulance
arrived shortly thereafter and transported Mr. Rodriguez to a
nearby hospital, where police interviewed him. During the
interview, Mr. Rodriguez told police that he could not identify his
assailants. However, he admitted at trial that he had lied to the
police about knowing who shot him because he wanted to take
care of it himself. After speaking to his brother Angel, who he
told at the hospital that Tall had shot him, and other members of
his family, he decided to cooperate with the police.
Mr. Rodriguez was again interviewed by police on February
11, 2014. During this interview, he told police that Tall had
been one of the men he saw shooting at him and also identified
a photograph of Tall as one of the assailants.
Mr. Angel Rodriguez confirmed that Mr. Rodriguez told him
at the hospital that Tall had shot him. Angel added that he
advised his brother to tell the police who had shot him.
Philadelphia Police Detective Samuel Gonzales, one of two
detectives assigned to investigate the shooting, upon learning
that Appellant had been identified as one of the shooters,
obtained a search warrant for Appellant’s residence. The
execution of the warrant failed to result in the seizure of any
relevant evidence. After being told by the complainant that
Appellant drove a white Buick, he obtained information from the
Pennsylvania Department of Motor Vehicles that a white 1997
Buick Sedan was registered to Appellant’s sister.
During the investigation of the incident, police obtained a
video recording that showed the complainant and his wife in the
area of 7th and Bristol Streets as well as the car the complainant
said Appellant was driving.
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Trial Court Opinion, 10/19/15, at 2–3 (record references and footnotes
omitted).
After a bench trial on January 29, 2015, Appellant was found guilty of
the aforementioned offenses. On June 19, 2015, prior to sentencing and
pursuant to Pa.R.Crim.P. 704(B)(4), Appellant orally motioned for
extraordinary relief arguing, inter alia, that the guilty verdict was against the
weight of the evidence. N.T. (Sentencing), 6/19/15, at 6. The trial court
denied the motion and proceeded to sentence Appellant to an aggregate
term of incarceration of seven and one-half to fifteen years. Appellant filed
a timely notice of appeal, and both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant raises one issue on appeal:
Did not the trial court err by denying appellant’s motion for
a new trial, as the verdict was against the weight of the evidence
where the evidence presented at Appellant’s trial was so
inconsistent that it did not support the verdict in this matter and
a new trial was necessary in the interests of justice?
Appellant’s Brief at 3.
Our standard of review in evaluating a challenge to the weight of the
evidence is well-settled:
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. Commonwealth v. Widmer, 560 Pa. 308,
319, 744 A.2d 745, 751–52 (2000); Commonwealth v.
Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). 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. Widmer, 560 Pa. at 319–20,
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744 A.2d at 752. 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.’” Id. at 320,
744 A.2d at 752 (citation omitted). It has often been stated that
“a new trial should be awarded 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.” Brown, 538 Pa. at 435, 648
A.2d at 1189.
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. Brown, 648 A.2d at
1189. 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. Commonwealth v. Farquharson, 467
Pa. 50, 354 A.2d 545 (Pa.1976). 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 of
justice. Widmer, 560 Pa. at 321–22, 744 A.2d at
753 (emphasis added).
Commonwealth v. Brown, 134 A.3d 1097, 1103–1104 (Pa. Super. 2016)
(quoting Commonwealth v. Clay, 619 Pa. 423, 431–32, 64 A.3d 1049,
1054–55 (2013)). Furthermore, issues of credibility are left to the trier of
fact. “[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
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the evidence.” Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super.
2016) (quoting Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa.
Super. 2010) (citations omitted)).
Appellant asserts that the weight of the evidence does not support a
finding that he was the person who shot the victim and, in fact, his identity
as the shooter was disproved by the evidence of record. Appellant contends
that the victim’s testimony in identifying him as the perpetrator was wholly
incredible in that the victim’s version of events—that after hearing shots, he
turned around and saw Appellant firing a gun—was refuted by the video
surveillance footage of the area that does not show the victim turning his
head.
Although Appellant argues that the trial court’s determination that
Appellant directed his gun in the victim’s direction was directly controverted
by the video footage, the trial court, within its province as fact finder,
viewed the video surveillance footage, and concluded that at some juncture,
Appellant, while firing his gun, shot the victim in the leg. As to the
purported inconsistency between the victim’s statement that he turned
around and saw Appellant and the video footage, the trial court remarked:
“I think he saw him beforehand.” N.T. (Trial), 1/29/15, at 105. Then, at
sentencing, the trial court observed: “[The video] didn’t show the shooting.
The video showed [the victim] basically getting clipped or coming around the
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corner before he got clipped because he was limping.” N.T. (Sentencing),
6/19/15, at 18.
Finally, the trial court determined that the victim’s identification of
Appellant was believable because:
[t]he complainant’s identification of Appellant as his assailant
was credible. It was predicated on the complainant’s long
familiarity with Appellant and his clear view of Appellant on the
night of the incident. Moreover, although the complainant did
not immediately identify Appellant to police, he promptly
identified him to his brother on the night of the incident. This
evidence more than supports the verdict.
Trial Court Opinion, 10/19/15, at 5.
Upon careful review of the record, including the video footage, we
conclude that Appellant’s claim that the evidence was too speculative and
incredible to support his conviction is meritless. The video footage makes it
difficult to determine the precise moment at which the victim was shot, this
being the point at which the victim says he turned and saw Appellant firing.
Thus, its evidentiary value to rebut the victim’s testimony that he saw
Appellant firing a gun is negligible. Certainly, the footage does not disprove
that Appellant fired his gun in the direction of the victim. Additionally, the
trial court determined that the victim’s identification of Appellant was
believable due to the victim’s long-term familiarity with Appellant and
because the victim promptly identified Appellant as the shooter to his
brother on the night of the crime.
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As noted, we need only assess the trial court’s exercise of discretion
in evaluating whether its decision to give more weight to certain evidence
constitutes a denial of justice. The trial court determined after examining all
of the evidence, that there were no grounds to disturb its credibility findings
or reweigh the evidence. We find no abuse of discretion in the trial court’s
decision that the testimony and evidence presented by the Commonwealth
was credible.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2016
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