Com. v. Jones, T.

Opinion

J-S02030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRANCE M. JONES : : Appellant : No. 1130 EDA 2016

Appeal from the Judgment of Sentence January 28, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008269-2013

BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.: FILED MARCH 29, 2018

Appellant Terrance M. Jones appeals from the judgment of sentence

entered following a four-day jury trial and his convictions for possession of a

firearm, carrying a firearm without a license, carrying a firearm in

Philadelphia, possession of an instrument of crime, simple assault, and

recklessly endangering another person.1 He challenges whether his

convictions were against the weight of the evidence. We affirm.

We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 3/22/17, at 1-5. Following his convictions, the

court sentenced Appellant to an aggregate sentence of six-and-a-half to

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. §§ 6105, 6106, 6108, 907, 2701, 2705, respectively. J-S02030-18

seventeen years’ imprisonment. Appellant timely filed a post-sentence motion

challenging the weight of the evidence, which the court denied. Appellant

timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

Appellant raises the following issue:

Was not the verdict of guilt against the weight of the evidence to the degree that such serious doubt is cast upon the validity of [Appellant’s] conviction as to shock the conscience where, taking into consideration all the evidence presented at trial, there was exculpatory and contradictory evidence as to [Appellant’s] actions and location at the time the complainant was shot, and also inculpatory evidence as to another party who had the opportunity and motivation to commit the shooting, and the evidence thereby failed to prove by sufficient weight that it was [Appellant] who shot the complainant or otherwise committed the crimes of which he was convicted?

Appellant’s Brief at 3.

In support of his issue, Appellant contends that the complainant’s

identification of him as the culprit was suspect. Appellant’s Brief at 16.

Appellant labels the complainant’s identification testimony as equivocal and

incredible because the complainant was intoxicated. Id. at 16-17. He also

accuses the complainant as predisposed to identifying him because of a prior

incident in which Appellant purportedly threatened the complainant with a

weapon. Id. at 17. Appellant also points out that no other witness testified

he was the shooter. Id. at 18. Finally, Appellant references alibi testimony

by defense witnesses that he was not present at the time of the shooting. Id.

Our standard of review is well-settled:

A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an

-2- J-S02030-18

appellate court reviews the exercise of the trial court’s discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (quotation

marks and citations omitted).

After careful review of the record, the parties’ briefs, and the decision

by the Honorable Diana Anhalt, we discern no abuse of discretion by the trial

court. See Trial Ct. Op. at 5-7 (summarizing conflicting testimony). As the

trial court accurately notes, credibility determinations and resolving

contradicting testimony were for the jury. See id.; accord Houser, 18 A.3d

at 1135-36.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/29/18

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:F,ILIED IN THE COURT OF COMMON PLEAS: M,M e � _. FOR TIJECOUNTY OF PHILADELPHIA • 11 �vftlt CRIMINAL DIVISION TRIAL · _•· ....· Unit Crimtnai== .· · First Jutfiaa . · , ·, COMMONWEALTH NO.: CP-51-CR-0008269-2013 0 PA OF PENNSYLVANIA

v. Superior Court No.: 1130 EDA 2016 TERRANCE JONES

CP-51-CR-0008269-2013 Comm. v. Jones, Terrance M Opinion OPINION

ANHALT,J. 1111111111 111111111111111 7922653281

Appellant in the above-captioned matter appeals this Court's judgment regarding his

conviction for Possession of a Firearm, 18 Pa.C.S.A. § 6105(a)(l) and related offenses. The

Court submits the following Opinion in accordance with the requirements of Pa.R.A.P. 1925(a).

For the reasons set forth herein, the Court holds that the judgment of conviction should be

affirmed.

PROCEDURAL HISTORY

On June 9, 2013, police arrested and charged Appellant, Terrance Jones with numerous

offenses stemming from a shooting. On November 25, 2015, following a jury trial, Appellant

was convicted of Possession of a Firearm (F2), Carrying a Firearm Without a License (F3 ),

Carrying a Firearm in Philadelphia (Ml), Possessing an Instrument of Crime ("PIC") (Ml),

Simple Assault (M2) and Recklessly Endangering Another Person ("REAP") (M2). On January

28, 2016, this Court sentenced Appellant to an aggregate term of 6.5 - 17 years of incarceration.

Appellant filed a timely notice of appeal on April 11, 2016. On April 15, 2016, this Court

ordered Appellant pursuant to Pa. R.A.P. 1925(b) to file with the Court a Concise Statement of

Matters Complained of on Appeal. On May 6, 2016, Appellant filed a Motion for Extension of -··-:·.;. - .. - .. ·-•--.-· ..� ··_:-·--·�s·· -... -._ ----- .-·-.--- ··.:s :. -- ·-·..--. ·....: .. ··-- -·.,.,_:-...-_-: _. __,,: ..., ·-· - ·- __/; --.' _- - -· ·__ ··_- -���----_:__��·--''-''··-_ ----�-- '-· . , ._, -··.,_·-1 .. ··�---.·.,_·---·-�.. ----.·--··-·----�-- -··-·· _

time. On January 12, 2017, this Court again ordered Appellant pursuant to Pa. R.A.P. 1925(b) to

file with the Court a Concise Statement of Matters Complained of on Appeal. On February 2,

2017, Appellant filed a Supplemental Statement of Errors Complained of on Appeal. Appellant

raises the following issue on appeal:

1. The verdict of guilt was against the weight of the evidence for all of the crimes of

which the defendant was convicted to the degree that such serious doubt is cast upon

the validity of the defendant's conviction as to shock the conscience; to wit, taking

into consideration all the evidence presented at trial, including exculpatory and also

contradictory evidence as to, inter alia, the defendant's actions and locations at the

time of the commission of the crimes, the actions and locations of another party that

had the opportunity and motivation to commit the crimes, and the source of the shot

that wounded the complainant, the evidence failed to prove by sufficient weight that it

was the defendant who shot the complainant or otherwise committed the crimes of

which he was convicted. 1

FACTUAL HISTORY

On June 8, 2013, Wayne Oliver attended a party across the street from his home on the

4800 block of North 7th Street in Philadelphia. Notes of Testimony (N.T.) 11/23/15 at 9.

Appellant's brother, Marlon Jones "Marlo" and a bunch of other people that live on the block

attended the party. Id. at 11. During the party, Mr. Oliver and Marlo got into an argument and

Marlo threw a punch at Mr. Oliver. Id. at 14. As Mr. Oliver walked across the street to his house,

1 Counsel notes that this supplemental statement is filed in response to the court's Rule 1925(b) order of January 12, 2017, apparently filed in response to counsel's request for an extension of time to file a supplemental statement of errors upon receipt of all necessary notes of testimony. Counsel notes that at the time of filing of this supplemental statement, counsel has received all outstanding notes of testimony, has reviewed those notes and is raising no additional claims of error beyond the claim raised in the original statement of errors filed on May 6, 2016.

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Marlo followed him and threatened to shoot and beat him. Id. at 15. Mr. Oliver met Marlo in the

middle of the street, punched him twice, got on top of him and "beat the hell out of him." Id. at

17. Mr. Oliver's son-in-law, Anthony, removed Mr. Oliver off of Marlo and walked him back up

the block. Id. Anthony then directed Mr. Oliver back to his house. Id. at 19.

After about 10-15 minutes, Mr. Oliver came back outside on his porch and encountered

Marlo's son. Id. at 20. Marlo's son asked Mr. Oliver who hit his dad and Mr. Oliver responded

that he did. Id. at 21. Marlo's son then threw a punch at Mr. Oliver, jumped off his porch and ran

back into the street. Id. Mr. Oliver got off his steps and began to fight Marlo's son. Id. at 22. Mr.

Oliver then noticed Marlo's brother, Appellant, leaning on a car on the other side of the street.

Id. at 22-23. As Mr. Oliver and Marlo's son were fighting, Marlo's son ran toward Appellant. Id.

at 56. Mr. Oliver then ran toward Marlo and Appellant. Id. at 56-57. At this point, Mr. Oliver and

Appellant are about three feet from each other. Id. at 57. Mr. Oliver tried to swing at Appellant

as Appellant's "hand came up." Id. at 24. Appellant then shot Mr. Oliver once. Id. at 25. The

bullet went through the top of his groin, was lodged in his leg and remains there to this day. Id. at

27. Anthony then picked Mr. Oliver up and carried him to his porch. Id. at 30. Mr. Oliver the

stayed on the porch until the ambulance and the police arrived. Id. Mr. Oliver was then rushed to

Einstein Medical Center. Id. at 31. Mr. Oliver told Detectives that Appellant shot him when

approached at the hospital. Id. at 33-34.

Lawanda Oliver, Mr. Oliver's daughter, stated that her father limped into the house and

yelled "that fat fucking T shot me."2 N.T. 11/20/15 at 54. Tiara Oliver, also Mr. Oliver's

daughter, witnessed her father and Marlo arguing face to face at 4821 N. 7th Street, the address of

the party. Id. at 84. Marlo told her that her dad better leave tonight because he was going to kill

2 "T" refers to Appellant, Terrance Jones.

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him. Id. at 85. Tiara then witnessed her father and Marlo fight in the street. Id. at 87. At the end

of the fight, Marlo was knocked to the ground and began to bleed from his mouth and head. Id. at

88. Tiara, who has medical assistant experience, attempted to aid Marlo. Id. at 88. Tiara then

went back to the house and stood on her porch when she saw Appellant pull up in a red Corvette

and Marlo's son pull up in a black van. Id. at 93. She then went into the house and believed that

everything was over. Id. at 96. As she went back to her front door she heard one gun shot. Id. at

97. After Mr. Oliver was helped inside the house, Tiara looked outside and saw everybody trying

to get out of the way. Id. at 98-99. Tiara witnessed Appellant get back into his car and Marlo's

son get into his van and both pull away. Id. at 99-100. She then went back inside her house

where her father screamed "T f-ing shot me." Id. at 102.

Detective Jeffrey Geliebter met with Mr. Oliver at 3:30 a.m. on June 9, 2013, at Einstein

Hospital. N.T. 11/23/15 at 92. He showed Mr. Oliver a photo array to which he identified and

circled the second picture from the left on the bottom row, a picture of Appellant. Id. at 91. Mr.

Oliver indicated that Appellant was the man who shot him and that he was "a hundred percent

sure he was looking at him when he was shot." Id. at 93. Detective Robert Hassel met with Mr.

Oliver at Einstein Hospital and conducted an interview around 11 :45 p.m. Id. at 108. Mr. Oliver

told Detective Hassel that a man named "T" shot him, the brother of the man he was fighting. Id.

at 110.

However, there are two versions of the events that unfolded the night of June 8, 2013.

Marlo testified to his account of the evening. Belinda Moore and Appellant were carrying him

into his house when he heard a gunshot. Id. at 156-158. However, Marlo's memory is hazy. He

stated that he did not remember who was at the party or who was next door when he got to the

party. Id. at 169. Marlo claimed that his memory of the events was better today than hours after it

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happened. Id. at 175. Marlo reasoned that he was close to "blackout drunk" that evening. Id. at

173. Marlo, by his own admission, mentioned his memory was less than perfect. Id. at 182.

Q: So I think we can all agree that your recollection of that night is fogged?

A: Yeah, I'm not saying it's perfect, but I'm giving you the best answers I could

give you.

Id. at 182-183. Belinda Moore, Marlo's wife, testified to a similar set of events. She also

attended the party at 4821 N. 7th Street on June 8, 2013. Id. at 196. She stated that Mr. Oliver and

her husband got into a physical altercation after hanging out and drinking all day. Id. at 198. As a

result of the two fighting, Ms. Moore called the police, Appellant, and her nephew Derrick

because none of the neighbors were helping break up the fight. Id. at 199. Appellant picked up

Marlo off the ground and proceeded to carry him into the house. Id. at 201. As Ms. Moore was

going in the house she heard what sounded like a gunshot. Id. So she, Marlo and Appellant

rushed into the house. Id. at 202. She stated that as the gunshot went off, she was holding

Marlo's one arm and Appellant was holding the other. Id. Derrick also testified that he helped

take Marlo into the house. Id. at 229.

DISCUSSION

Appellant contends that the guilty verdict was against the weight of evidence.

Specifically, Appellant asserts that the evidence failed to prove by sufficient weight that it was

Appellant who shot the complainant or otherwise committed the crimes of which he was

convicted.

"The weight of the evidence is exclusively for the finder of fact who is free to believe all,

part, or none of the evidence and to determine the credibility of the witnesses." Commonwealth

v. Champney, 832 A.2d 403, 408 (Pa. 2003). The Supreme Court of Pennsylvania in Champney

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explained that an appellate court cannot substitute its judgment for that of the finder of fact. Id.

Therefore, the court may only reverse the lower court if the verdict is so contrary to the evidence

as to "shock one's sense ofjustice." Id. citing Commonwealth v. Small, 741 A.2d 666, 672-73

(Pa. 1999) (citations omitted). The Supreme Court has set forth the following standard of review

for Appellant's claim that the verdict is against the weight of evidence and that he should be

entitled to a new trial:

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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). (citations and quotation omitted).

See also Kaplan v. 0 'Kane, 835 A.2d 735, 737 (Pa. Super. 2003). (holding "[t]he power to grant

a new trial lies inherently with the trial court, and [the] appellate court will not reverse its

decision absent a clear abuse of discretion or an error of law which controls the outcome of the

case.").

The defendant in Champney claimed that the guilty verdict was against the weight of the

evidence since the jury supposedly ignored important evidence in reference to the thoroughness

of police investigation. Champney, 832 A.2d at 408. The Supreme Court of Pennsylvania in

Champney explained that it was exclusively within the jury's province to weigh this evidence,

and thus, the defendant's claim failed. Id. at 409.

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Here, Appellant points to Marlo's and Ms. Moore's testimony as evidence that exculpates

him from his conviction in connection with the shooting. Specifically, Appellant directs our

attention to testimony that shows him carrying Marlo into his house as the shot was fired which

proves that he was not the gunman. N.T. 11/23/15 at 156-158. However, there are many issues

with Marlo's testimony. The jury was proper when it discounted the testimony of Marlo, a man

who, by his own admission, did not have great memory. Id. at 182. Marlo, himself, used the term

"blackout drunk." Id. at 173. The other time the jury heard that Appellant was carrying Marlo

when the gunshot went off was from Ms. Moore. Id. at 201. Ms. Moore is Marlo's wife and

therefore, Appellant's sister-in-law. Id. at 196. That relationship naturally raises questions as to

her intentions to provide credible testimony. Since the jury was free to believe all, part or none of

the evidence against Appellant outlined above, and similar to Champney, the jury was proper in

believing Mr. Oliver's credible version of events and ignoring or discrediting Marlo's and Ms.

Moore's version. That the jury convicted Appellant with evidence provided by Mr. Oliver,

Lawanda and Tiara is not so contrary to the evidence that it would shock one's sense of justice.

Therefore, the guilty verdict was not against the weight of evidence.

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CONCLUSION

After review of the applicable statutes, testimony, and case law, the verdict was not

against the weight of evidence. Accordingly, this Court's decision should be affirmed.

BY THE COURT:

DATE: March21,2017 DIANAL.ANHALT, J

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PROOF OF SERVICE

I hereby certify that on the date set forth below, I caused an original copy of the Judicial Opinion to be served upon the persons at following locations, which service satisfies the requirements of Pa.R.A.P. 122:

Mark Cichowicz, Esquire Defender Association of Philadelphia 1441 Sansom Street Philadelphia, PA 19102

Hugh Bums, Esquire Philadelphia District Attorneys Office Three South Penn Square Philadelphia, PA 19107

Date: � /2. L /1 f