J-S06044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC JACKSON : : Appellant : No. 1588 EDA 2019
Appeal from the Judgment of Sentence Entered February 26, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005662-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: April 8, 2021
Eric Jackson (Jackson) appeals the judgment of sentence entered by the
Court of Common Pleas of Delaware County (trial court). Following a jury
trial, he was found guilty of aggravated assault (18 Pa.C.S. § 2702(a)(1));
attempted murder (18 Pa.C.S. §§ 901, 2502); assault of a law enforcement
officer (18 Pa.C.S. § 2702.1(a)); and illegal possession of firearms (18 Pa.C.S.
§ 6105). The trial court imposed an aggregate prison term of 40 to 80 years.
Finding that none of Jackson’s grounds for appellate relief have merit, we
affirm.
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* Retired Senior Judge assigned to the Superior Court. J-S06044-21
I.
Jackson was arrested following an incident that took place at about 2:00
a.m. on August 17, 2017.1 That evening, while Officers Steven DiBello and
Mitchell Holobowicz were patrolling an area where there had been a recent
string of automobile break-ins, they noticed that two men were peering into a
parked vehicle. The officers immediately approached, identified themselves
as police and stepped out of their patrol car. The officers asked the suspects
if they would speak to them and they initially complied.
Officer DiBello asked one of the two men (who he later identified as
Jackson) for an identification card. While the officers spoke with Jackson, their
patrol car’s emergency lights were illuminating the area. Further, both officers
pointed their flashlights in the direction of Jackson from about four feet away,
which was sufficient for them to clearly see his entire body, including his face.
See Trial Transcript, 10/31/1018, at p. 42.
The verbal encounter abruptly ended about ten seconds later when
Jackson uttered a profanity and ran away. Officer DiBello pursued on foot and
Officer Holobowicz pursued in his vehicle after confirming that the second man
had no weapons. Officer DiBello chased Jackson through a series of residential
properties, requiring him to run between houses and scale fences. During the
1 Our recitation of the material case facts is taken from trial transcripts found in the certified record.
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chase, Officer DiBello saw Jackson drop and then quickly pick up a black
object. He recounted that Jackson was wearing a white t-shirt, black
sweatpants and black sneakers. Both officers briefly lost sight of Jackson at
this stage of the chase.
A few seconds later, though, right as Officer Holobowicz caught up to
Officer DiBello, they saw a person they believed to be Jackson sprawled on
the roof of a garage that stood just four feet from the ground. They pointed
their flashlights on the person, who then jumped off the roof of the garage
and ran away, defying the officers’ orders to stop. The officers did not clearly
see the face of the person at that point, but they were able to see the contours
of his body, as well as his clothing, which matched those worn by Jackson at
the outset of the encounter.
The situation escalated when this same fleeing suspect tried to hide from
the pursuing officers by squatting behind a parked car. As Officer DiBello
neared, he saw the person he later identified as Jackson pull a gun from his
waistband and point it at him. Jackson opened fire and Officer DiBello quickly
took cover. After the gunfire ceased, Officers DiBello and Holobowicz resumed
their pursuit.
The officers chased Jackson to a construction yard. They saw that when
Jackson struggled to scale a perimeter fence, his white t-shirt caught on the
fence’s wiring and he dropped the gun he was carrying. Officer DiBello ordered
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Jackson to stop and put his hands up, but he instead continued to flee and
managed to escape.
Later that morning, an employee at the construction yard arrived at
approximately 6 a.m. to begin work. This worker was aware of the manhunt
in the area, so he became alarmed when he saw a shirtless man leaving the
yard. He reported the intruder to police and surveillance videos captured the
image of the man described in the call. A second worker also saw the shirtless
man leaving the yard and jumping a fence to get into an adjacent lot.
In response to that report, Officers DiBello and Holobowicz came back
to the scene and soon observed Jackson on a nearby street. Jackson was
shirtless, displaying fresh scratches on his chest, and he wore black shorts
and black sneakers. Both Officers DiBello and Holobowicz recognized Jackson
as the man they had initially stopped and chased. They were then able to
place Jackson under arrest.
A forensic investigation of the scene yielded a black handgun near where
Jackson had climbed a fence to get into the construction yard. Fired cartridge
casings, bullet specimens and bullet jackets were also recovered where
Jackson had shot at Officer DiBello. Testing of those materials matched them
to the firearm.
Police also recovered a fragment of a white t-shirt that had been caught
on the top of the fence that Jackson had climbed. Further, police found a pair
of black sweatpants in a nearby dumpster. A white t-shirt containing Jackson’s
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blood was found in that area, as well as an abandoned cellular phone. The
fresh cuts on Jackson’s chest would have been consistent with a difficult climb
over a wire fence.
Jackson admitted during police questioning that he was one of the
people who had encountered Officers DiBello and Holobowicz near the
construction yard. He claimed that two other men (his brother and a friend)
were with him, and that he was not the person who had possessed or
discharged a firearm that night. Jackson maintained that at all relevant times,
he was wearing a black shirt and shorts, and that the cellular phone recovered
at the scene did not belong to him.
Despite Jackson’s denials, the cellular phone number he gave to police
was the same number assigned to the phone that police had found at the
crime scene. The data extracted from the phone included text messages sent
by “Eric” which is Jackson’s first name. There were also numerous photos of
Jackson saved on the phone – even images of him wearing the same black
sweatpants and white t-shirt worn by the man who had fled from Officers
DiBello and Holobowicz. Text messages in the phone sent within six hours of
the encounter with the police referred to Jackson’s possession and attempted
sale of a “strap” which he acknowledged is a slang term for a firearm.
At trial, Jackson’s sole defense was misidentification. He admitted he
was present at the scene the night of the shooting, that the cellular phone
belonged to him, and that he fled from the police, explaining that he was on
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parole and was afraid of being found in violation of the terms of his release.
He attributed the shooting to his friend named “Quay.” Jackson insisted that
he had not been wearing the black sweatpants and white t-shirt that was worn
by the shooter and recovered by police.
The jury found Jackson guilty as outlined above. He then timely filed
post-sentence motions challenging the sufficiency and weight of the evidence,
as well as discretionary aspects of the sentence. The trial court denied the
post-sentence motion in its entirety. Jackson timely appealed and he now
asserts four issues:
1. Whether the verdicts of guilty are based on insufficient evidence, where [Jackson] testified that a third person was responsible for the shooting, police lost sight of [Jackson] for a sufficient period of time for another person to be involved, police did not see the face of the perpetrator, and physical evidence recovered by police was not linked to [Jackson].
2. Whether the verdicts are against the weight of the evidence, where [Jackson] could not be identified as the person who committed the shooting and the circumstantial evidence was not of such amount and quality to support a finding that [Jackson] is guilty.
3. Whether a jury instruction under Commonwealth v. Kloiber, [106 A.2d 820 (Pa. 1954)], that identification testimony should be accepted by the jury with caution, is required under circumstances showing that the complaining witness did not in fact see the person who committed the shooting but identified [Jackson] at trial as the perpetrator nonetheless.
4. Whether the sentence of 40 to 80 years amounts to an abuse of discretion, where the sentence was imposed based on the serious nature of the crime only and without regard to mitigating evidence submitted by [Jackson].
Appellant’s Brief, at 5-6.
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II.
Jackson first argues that the Commonwealth’s evidence was legally
insufficient because, as a matter of law, he could not be identified as the
person who fled from police and shot at Officer DiBello on the evening in
question.2 He claims he was wearing different clothes than those worn by the
shooter, and that the officers had confused him with one of his companions
who had been responsible for the shooting. According to Jackson, the absence
of visual identification evidence and the lack of forensic evidence linking him
to the weapon used in the shooting should have resulted in his acquittal.
When reviewing a sufficiency claim, we must construe the evidence and
all reasonable inferences in the light most favorable to the verdict winner.
See Commonwealth v. Peck, 242 A.3d 1274, 1279 (Pa. 2020). The
evidence is deemed sufficient if the jury, sitting as fact-finder, could have
found that the evidence satisfied all elements of the charged offenses beyond
a reasonable doubt. See id.; Commonwealth v. Lyons, 79 A.3d 1053, 1062
(Pa. 2013).
Direct or circumstantial evidence may be sufficient to sustain a
conviction. See Commonwealth v. Roney, 866 A.2d 351, 356 (Pa. 2005);
Commonwealth v. Chmiel, 639 A.2d 9, 11 (Pa. 1994); Commonwealth v.
2Sufficiency of the evidence is a question of law subject to a de novo standard of review. See Commonwealth v. Woodard, 129 A.3d 480, 489 (Pa. 2015).
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Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012). In fact, some or all
elements of an offense may be proven circumstantially as long as such
evidence permits a reasonable inference that the element or elements are
satisfied. See Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011);
Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000).
It is the province of the jury, sitting as the trier of fact, to determine the
credibility of the witnesses and the weight to be afforded to the evidence,
including that of identification testimony. See Commonwealth v. Kitchen,
162 A.3d 1140, 1144 (Pa. Super 2017); Commonwealth v. Baker, 24 A.3d
1006, 1020 (Pa. Super. 2011); see also Commonwealth v. Donald, 323
A.2d 67, 68 (Pa. Super. 1974) (“The weight of identification is for the fact
finder.”). In that capacity, the jury is free to believe all, part or none of the
evidence. See Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995);
Commonwealth v. Coleman, 984 A.2d 998, 1002 (Pa. Super. 2009).
A.
After reviewing the record, we determine that there was sufficient
evidence from which the jury could conclude beyond a reasonable doubt that
Jackson was guilty as charged. As to all of his convictions, the only disputed
element is Jackson’s identity as the shooter. However, there was ample direct
and circumstantial evidence that established Jackson’s identity as the man
who fled from and shot at the two pursuing officers.
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Jackson admitted to being among a group who initially fled from Officers
DiBello and Holobowicz. He admitted that the phone abandoned at the scene
belonged to him and that in recent text messages, he had discussed selling a
gun. Photos in the phone depicted Jackson wearing the same black pants and
white t-shirt worn by the shooter, notwithstanding Jackson’s claim that he did
not wear them on the night in question.
Regardless, police found an abandoned white t-shirt in the area with
Jackson’s blood on it, and when arrested nearby, he was shirtless and
suffering from fresh cuts on his chest. While the scene of the crime was darkly
lit, Officers DiBello and Holobowicz both testified that Jackson was the same
man who they chased and who shot at Officer DiBello. They testified credibly
that Jackson’s face resembled the clearly illuminated face of the man they saw
at the time of the initial stop. While the officers may have briefly lost sight of
Jackson due to his attempt to elude them, their identification testimony was
a matter of weight for the jury to decide. Thus, the evidence is legally
sufficient.
III.
We now turn to Jackson’s related but distinct claim that his convictions
are not sustained by the weight of the evidence and that the trial court erred
in denying his post-sentence motion for a new trial on that ground.
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When reviewing such claims, we afford a high degree of deference to
the trial court’s ruling, applying an abuse of discretion standard: “An abuse
of discretion is not merely an error of judgment, but is rather the overriding
or misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, or partiality, as shown by the
evidence of record.” Commonwealth v. Santos, 176 A.3d 877, 882 (Pa.
Super. 2017) (quoting Commonwealth v. Antidormi, 84 A.3d 736, 749-50
(Pa. Super. 2014)) (citations omitted). “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.” Antidormi, 84
A.3d at 758 (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa.
2000)).
If the record supports the trial court’s reasons and factual basis for its
ruling on the weight of the evidence, then the trial court has not abused its
discretion. See Ambrogi v. Reber, 932 A.2d 969, 974 (Pa. Super. 2007);
Commonwealth v. Cousar, 928 A.2d 1025, 1036 (Pa. Super. 2007) (An
appellate court reviews the trial court’s exercise of discretion, not the
underlying question whether the verdict is against the weight of the evidence).
B.
Similar to his sufficiency claims, Jackson argues that the verdict is not
supported by the weight of the evidence because the testifying officers did not
clearly see the face of the perpetrator. Jackson argues that his identification
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as the shooter was based on a momentary encounter between him and the
officers at the outset of the incident.
He emphasizes that his DNA was not found on the black pants retrieved
from the dumpster at the construction yard and his fingerprints were not found
on the recovered weapon. He states that he was not seen in the area of the
shooting until hours after it had occurred. Jackson contends further that the
photos extracted from his cellular phone (depicting him wearing similar clothes
to that of the shooter) were taken months before the shooting, giving them
little probative value as to what he wore on the night in question.
Just as we explained with respect to Jackson’s sufficiency claim, the
Commonwealth proved through direct and circumstantial identification
evidence that Jackson was the man who opened fire on Officer DiBello. The
jury found the officers’ identifications to be credible, and we cannot substitute
our judgment for that of the fact-finder. Thus, the trial court did not abuse
its discretion when denying Jackson’s weight of evidence claim. See
Commonwealth v. Furness, 153 A.3d 397, 403-04 (Pa. Super. 2016)
(affirming denial of weight claim challenging witness’s identification).
IV.
Jackson’s next issue is whether the trial court abused its discretion in
denying a Kloiber instruction, which would have cautioned the jury about the
eyewitnesses’ physical ability to identify Jackson as the person who shot at
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Officer DiBello. See generally Commonwealth v. Kloiber, 106 A.2d 820
(Pa. 1954). Jackson claims that since the two officers did not see the face of
the shooter clearly, and Jackson had eluded the officers in between the initial
encounter and the shooting, the denial of a Kloiber instruction entitles him to
a new trial.
“When a court instructs the jury, the objective is to explain to the jury
how it should approach its task and the factors it should consider in reaching
a verdict.” Commonwealth v. Chambers, 980 A.2d 35, 49 (Pa. 2009)
(quotations omitted). Denial of a requested instruction warrants appellate
remedy only if the trial court abused its discretion or committed an error of
law that affected the outcome of the trial. Id.
A Kloiber instruction may be proper in situations where something had
physically hindered the eyewitness’ ability to identify the defendant. See
Commonwealth v. Brown, 196 A.3d 130, 163 (Pa. 2018). Our Supreme
Court held in Kloiber that:
[W]here the witness is not in a position to clearly observe the assailant or he is not positive as to identity, or his positive statements as to identity are weakened by qualification, or by the failure to identify the defendant on one or more prior occasions, the accuracy of the identifications is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.
Kloiber, 106 A.2d at 826–27.
Accordingly, a defendant is entitled to a Kloiber instruction where a
witness: “(1) did not have an opportunity to clearly view the defendant; (2)
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equivocated on the identification of the defendant; or (3) had a problem
making an identification in the past.” Commonwealth v. Ali, 10 A.3d 282,
303 (Pa. 2010) (quoting Commonwealth v. Gibson, 688 A.2d 1152, 1163
(Pa. 1997)).
The Court also explained in Kloiber that, “[w]here the opportunity for
positive identification is good and the witness’ identification is not weakened
by prior failure to identify, but remains, even after cross-examination, positive
and unqualified, the testimony as to identification need not be received with
caution.” Kloiber, 106 A.2d at 826; Commonwealth v. Sanders, 42 A.3d
325, 332 (Pa. Super. 2012) (same).
In the present case, there is no dispute that the trial court thoroughly
instructed the jury on how to weigh the credibility of witness testimony. See
Trial Transcript, 11/2/2018, at pp. 99-103. The jury was advised on all the
permissible factors that may come into play when determining whether or to
what extent a witness’s testimony is to be believed. Jackson’s narrow claim
is that he was entitled to a Kloiber instruction because – similar to his
sufficiency and weight claims – the two officers did not clearly see the
shooter’s face after Jackson had fled from them.
The trial court properly denied the requested Kloiber instruction
because the officers’ identifications of Jackson were positive and unequivocal
even after cross-examination. That the officers momentarily lost sight of
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Jackson as he ran away from them did not physically affect their ability to
positively identify him as the person who fled moments after contact, hid on
a low garage roof and shot at Officer DiBello. Jackson’s efforts to elude the
officers did not compel the trial court to specifically instruct the jury to receive
the officers’ identification with caution.
On these facts, a Kloiber instruction was not required, and it was up to
Jackson to persuade the jury, if he could, that the identifications of him as the
shooter were not credible. Thus, we find that the trial court did not abuse its
discretion or commit an error of law in denying the instruction.
V.
Lastly, Jackson makes a two-fold argument that the trial court imposed
an excessive sentence without considering mitigating evidence, focusing
instead only on the seriousness of the offenses. While the majority of the
terms Jackson received were minimum mandatory sentences, he contends
that the trial court’s decision to impose them consecutively,3 resulting in a
longer aggregate term, was manifestly excessive despite falling within the
permissible statutory range.
3 The consecutive sentences Jackson received include a mandatory minimum term of 20 to 40 years for assault of a police officer; 10 to 20 years for attempted murder; and 10 to 20 years for possession of a firearm by a prohibited person.
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Since these claims concern discretionary aspects of the sentence,
Jackson had to invoke this Court’s jurisdiction to consider them by first taking
the necessary procedural steps and then demonstrating that the claims
involve a “substantial question.” See generally Commonwealth v. Griffin,
65 A.3d 932, 935-36 (Pa. Super. 2013). A “substantial question” exists if the
appellant has made a colorable argument that the sentence violated a specific
provision of the Sentencing Code or was contrary to the “fundamental norms
underlying the sentencing process.” Commonwealth v. Johnson, 873 A.2d
704, 708 (Pa. Super. 2005).
There is no dispute that Jackson complied with the procedures needed
to raise his sentencing claim. However, claims of an excessive sentence are
generally found not to constitute a substantial question that can be addressed
on direct appeal. See Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.
Super. 2015) (en banc) (“A court’s exercise of discretion in imposing a
sentence concurrently or consecutively does not ordinarily raise a substantial
question.”). It is only in the “most extreme circumstances” that this type of
claim is reviewable. Id.
The same holds true where an excessive sentence claim predicated on
a consecutive term is coupled with a claim that mitigating circumstances were
not considered. See Commonwealth v. DiSalvo, 70 A.3d 900, 903 (Pa.
Super. 2013). “[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
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question for our review.” Id. (quoting Commonwealth v. Downing, 990
A.2d 788, 794 (Pa. Super. 2010)); Commonwealth v. Kraft, 737 A.2d 755,
757 (Pa. Super. 1999) (same). As Jackson’s sentencing claim is the type of
issue that does not raise a substantial question, we cannot reach its merits.
Even if we were to proceed to the merits of Jackson’s sentencing claims,
we would conclude that no relief would be due. These claims are reviewed
under an abuse of discretion standard. See Commonwealth v. Perry, 883
A.2d 599, 603 (Pa. Super. 2005) (explaining that decision to impose
concurrent or consecutive terms is a matter of judicial discretion).
In order to prevail, an appellant must “establish, by reference to the
record, that the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.” Disalvo, 70 A.3d at 903 (quoting
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)); see also
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).
At the sentencing hearing in this case, the trial court was demonstrably
aware of all the extensive mitigating evidence that was presented on Jackson’s
behalf. The trial court expressly stated at the sentencing hearing and in its
written opinion that it had reviewed a presentence investigation report
prepared by the probation department; a psychological evaluation; a
psychological evaluation addendum; a psychiatric evaluation; competency
and intellectual evaluations; a substance abuse evaluation; the sentencing
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memorandums prepared by both counsel; and victim impact statements.4
See Trial Court Opinion, 7/17/2020, at pp. 31-32.
Further, the trial court took into account Jackson’s difficult upbringing,
substance abuse issues and medical health history. See id. at pp. 38-40.
However, the trial court also balanced such considerations against competing
sentencing factors, including Jackson’s extensive history of violence and
parole status at the time of the offenses. Thus, the record simply does not
support Jackson’s claim that the trial court either ignored any mitigating
evidence or focused on any impermissible sentencing factors. Because the
sentence was not excessively harsh nor manifestly excessive and was free of
legal error, the trial court did not abuse its discretion in this respect.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/8/21
4 See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“When the sentencing court had the benefit of a pre-sentence investigation report (“PSI”), we can assume the sentencing court was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.”).
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