J-S26018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JAMAL PAYNE
Appellant No. 3179 EDA 2014
Appeal from the Judgment of Sentence entered June 25, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0004095-2013
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 21, 2016
Appellant, Jamal Payne, appeals from the judgment of sentence the
Court of Common Pleas of Philadelphia County entered June 25, 2014,
following his convictions for third degree murder, conspiracy to commit third
degree murder, attempted murder, aggravated assault, conspiracy to
commit aggravated assault, carrying firearms without a license, carrying
firearms in Philadelphia, and possession of instrument of crime. On appeal,
Appellant raises weight and sufficiency of the evidence claims. Upon review,
we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S26018-16
The trial court summarized the underlying procedural and factual
background in its Pa.R.A.P. 1925(a) opinion, which we adopt here by
reference. Trial Court Opinion, 4/30/15, at 1-3.
On appeal, Appellant argues his multiple convictions are against the
weight of the evidence and based on insufficient evidence “because the
inferences drawn that [] Appellant was the shooter were unreasonable
inferences.” Appellant’s Brief at 6.1 We disagree.
Appellant’s contentions amount to no more than mere allegations of
error or abuse of discretion, requiring us to reweigh the evidence, making
credibility determinations in his favor, or substituting our judgment for that
1 The issues for our review are stated as follows:
I. Whether the adjudication of guilt is against the weight of the evidence and shocking to one’s sense of justice where the ballistics evidence demonstrated that there was only one shooter, where the first police [sic] on the scene were only given a description of one shooter, where the Appellant’s physical appearance did not match the description of the shooter given by eyewitnesses, where the Appellant was implicated years after the crime by unsubstantiated rumor, where witnesses who gave statements to police were motivated by self-preservation and gave inconsistent statements and were witnesses admitted at trial that they had lied to police.
II. Whether the Appellant’s convictions are based upon insufficient evidence because the inferences drawn that the Appellant was the shooter were unreasonable inferences.
Appellant’s Brief at 6.
-2- J-S26018-16
of the trial court or the jury, all in disregard of our well-established
standards of review.2 We will not do so. See, e.g., Commonwealth v.
Sanchez, 36 A.3d 24, 39 (Pa. 2011); Commonwealth v. DeJesus, 860
A.2d 102, 107 (Pa. 2004).
To the extent Appellant raises reviewable weight and sufficiency of the
evidence claims, upon review of the record, the parties’ briefs, and the trial
2 In reviewing a challenge to the weight of the evidence, we note that
[t]he 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. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations and quotation marks omitted).
In reviewing a sufficiency of the evidence claim, we determine
whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact-finder.
Commonwealth v. Stevenson, 894 A.2d 759, 773 (Pa. Super. 2006) (citations omitted).
-3- J-S26018-16
court opinion, we conclude the trial court adequately addressed these issues.
Trial Court Opinion, 4/30/15, at 3-16. Accordingly, we conclude Appellant’s
weight and sufficiency of the evidence claims are without merit, and affirm
the judgment of sentence. We direct that a copy of the trial court’s April 30,
2015 opinion be attached to any future filings in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/21/2016
-4- Circulated 06/30/2016 02:51 PM
IN THE COURT OF COMM ON PLEAS OF PHILADELPHIA COUNTY TRIAL DIVISION - CRIMINAL SECTION
F~,. ~·' .,
.· ' · ·o· F:'r·' .
·=:"'I:·:··_·::::~·-:-:-:"',-: -
COMMONWEAL TH OF PENNSYLVANIA Cr;·~r'::· c,·rc-, ~ V•.. .___,-,: ·- : .,-,~ ' ..--. ~ v. CP-51-CR-0004095-2013
JAMAL PAYNE CP-51-CR-0004095-2013 Comm v Payne, Jamal Opinion
OPINION I II I I II 111111111111111111 7288251811
CARPENTER, J. April 30, 2015
Defendant Jamal Payne ("Payne") was charged with and found guilty of Murder
of the Third Degree (F1), Conspiracy to Commit Murder of the Third Degree (F1 ),
Attempted Murder (F1 ), Aggravated Assault (F1 ), Conspiracy to Commit Aggravated
Assault (F1), Carrying Firearms Without a License ("VUFA § 6106") (F3), Carrying
Firearms on Public Property in Philadelphia ("VUFA § 6108") (M1), and Possession of
Instrument of Crime ("PIC") (M1) on bill of information CP-51-CR-0004095-2013. These
charges arose from a drive-by shooting on August 6, 2009 on the 700 block of South
55th Street in the City of Philadelphia which left Troy Travis dead and Tyree Cummings
injured. This court requests that the Superior Court uphold the convictions and affirm
the sentence imposed in this matter.
PROCEDURAL HISTORY
On March 11, 2014, Payne elected to exercise his right to a Jury trial and to plead
not guilty to the above listed charges. On March 17, 2014, the jury found Payne guilty
\ of the above listed charges and sentencing was deferred to June 25, 2014. On June
25, 2014, this court sentenced Payne to consecutive terms of imprisonment of 20-40
years for Murder of the Third Degree, 10-20 years for Attempted Murder, and 3.5-7
years for VUFA § 6106. He received no further penalty on the remaining charges. On
June 30, 2014, Payne filed a post-sentence motion, which was denied on October 29,
2014.
On November 12, 2014, this court received a Notice of Appeal and on January 7,
2015, upon completion of the notes of testimony, Payne was served an Order directing
him to file a concise statement of the matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On January 21, 2015, this court received Payne's 1925(b) response
which raised the following issues on appeal:
1. The adjudication of guilt is against the weight of the evidence and shocking to one's sense of justice where the ballistics evidence demonstrated that there was only one shooter, where the first police on the scene were only given a description of one shooter, where the defendant's physical appearance did not match the description of the shooter given by eyewitnesses, where the defendant was implicated years after the crime by unsubstantiated rumor, where witnesses who gave statements to police were motivated by self-preservation and gave inconsistent statements, and where witnesses admitted at trial that they lied to the police.
2. The defendant's convictions are based upon insufficient evidence because the inferences drawn that the defendant was the shooter were unreasonable inferences.
FACTS
On August 6, 2009, just after midnight, Donte Hack ("Hack") and his friends, Troy
Travis (Travis") and Tyree Cummings ("Cummings"), (collectively, the "Crowd") met up
after a basketball game at the Sherwood Recreational Center and gathered outside of a
2 home located at 712 South 561h Street in the City of Philadelphia. Shortly thereafter, the
defendant and an unidentified co-conspirator drove down Catharine Street and turned
onto South ss" Street. The co-conspirator, who was driving the car, continued
southbound toward the Crowd gathered in front of 712 South 561h Street. Hack observed
the vehicle slowing down as it neared the Crowd, and saw the defendant leaning out of
the passenger side window pointing a gun in the direction of the Crowd. As the co-
conspirator slowly drove past 712 South Fifty-Sixth Street, the defendant fired shots
from the passenger side window at the Crowd approximately fifteen feet away.
Hack immediately ducked down; when he looked up, Hack observed Travis
approximately five feet away with a gunshot wound to the head, and Cummings with a
gunshot wound to the hand. The defendant and his co-conspirator "took off." Hack and
Cummings began running; they ran approximately two blocks to Hack's home located at
5612 Cedar Avenue. Travis died at the scene and Cummings was taken to the hospital
with a gunshot wound to his right hand.
DISCUSSION
Sufficiencyof the evidence
The standard applied when reviewing the sufficiency of evidence is whether,
viewing all the evidence admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every element of the crime
beyond a reasonable doubt.1 ln applying this test, the Superior Court may not weigh
the evidence and substitute its judgment for that of the fact-finder. The facts and
1Com. v. Heberling, 678 A.2d 794, 795 (Pa. Super. 1996) (citing Com. v. Williams, 650 A.2d 420 (Pa. 1994)}. 3 -- circumstances established by the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter of law, no probability
of fact may be drawn from the combined circumstance.2 The Commonwealth may
satisfy its burden of proving an element of the crime beyond a reasonable doubt through
the use of wholly circumstantial evidence. In applying the test, the whole record must
be evaluated and all evidence received must be considered.' Additionally, any
challenge to the sufficiency of the evidence must specify the element or elements upon
which the evidence was insufficient; otherwise the claim is waived.4
On appeal, the defendant asserts that his convictions are based upon insufficient
evidence. This claim ls without merit as the evidence introduced at trial was more than
sufficient to support Payne's convictions for Murder of the Third Degree, Conspiracy to
Commit Murder of the Third Degree, Attempted Murder, Aggravated Assault,
Conspiracy to Commit Aggravated Assault, VUFA § 6106, VUFA § 6108, and PIG.
At trial, the jury heard testimony from Donte Hack, Tyree Cummings, Norman
Mapp, numerous police officers and detectives, as well as the medical examiner, Dr.
Collins. The testimony of eye-witness Hack established that, during the early morning of
August 6, 2009, Hack was with a group of people outside of 712 South 56th Street when
he observed the defendant and his co-conspirator driving southbound on South 56th
Street. Hack saw the vehicle slow down as it neared 712 South 55th Street and
observed the defendant leaning out of the passenger side window with a gun pointed in
the direction of the Crowd. Moments later, as the co-conspirator drove past 712 South
2 Com. v. Cassidy, 668 A.2d 1143, 1144 (Pa. Super. 1995). 3Com. v. Va/ette, 613 A.2d 548, 549 (Pa. 1992). 4 Com. v. Williams. 959 A.2d 1252, 1257 (Pa. Super. 2008).
4 -- 561h Street, Hack saw the defendant shooting at the Crowd. Later that morning, Hack
described the shooter and his co-conspirator in a signed statement to detectives. In
September 2011, Hack gave a subsequent statement to detectives and identified Payne
in a photo array as the "shooter in the car." Hack also identified Payne in a photograph
in front of the grand jury on September 20, 2012.5 Although, at trial, Hack disavowed
some of the averments he previously made, the jury was able to evaluate the credibility
of Hack's initial statement to detectives, his testimony in front of the grand jury, his
testimony at the preliminary hearing, as well as his testimony at trial in making its
assessment of the evidence presented.
Eyewitness Cummings' August 7, 2009 statement to detectives corroborated that
of Hack with regard to the date, time, and location of the shooting as well Payne's
conduct in riding southbound on South 561h Street and shooting at the Crowd outside of
712 South 561h Street from the front passenger window. Further, Cummings' March 1,
201 O statement to detectives corroborated Hack's identification of Payne as the shooter.
During the direct examination of Detective Gaul, the prosecutor introduced the
following portion of Cummings' August 7, 2009 statement:
[DETECTIVE GAUL]: Mr. Cummings, could you please go on in your own words and tell us what happened. [MR. CUMMINGS]: Everybody was hanging out by the house at 714 South Fifty-Sixth Street. Everybody hangs in front of that house because nobody lives there. While we were hanging out there, a car came down Fifty-Sixth Street from Catharine Street. The car was heading up Fifty- Sixth Street towards where the rec and the pool is. Then as the car was going by us, a boy was hanging out of the passenger side and he had a gun. He started firing and everyone started scattering. l got hit.6
5 Hack did not, however, identify Payne at the March 27, 2013 preliminary hearing. 6 N.T. 3/13/2015 at 62:5-24.
5 During the direct examination of Detective Verrecchio, the prosecutor introduced the
following portion of Cummings' March 1, 2010 statement in which he identified Payne as
the shooter:
DETECTIVE VERRECCHIO: Who is this person that shot you and Troy Travis? MR. CUMMINGS: His name is Mal. He's from Lansdowne. DETECTIVE VERRECCHIO: Did you know this person's name when you were previously interviewed? MR. CUMMINGS: I knew who it was but I didn't know his name. DETECTIVE VERRECCHIO: How long have you known Mal? MR. CUMMINGS: I've known him since December of 2008. DETECTIVE VERRECCHIO: What was the reason for the shooting, if you know? MR. CUMMINGS: I really don't know. We was just out there having fun. DETECTIVE VERRECCHIO: Did you hear anything about a girl getting dunked in a pool that day? MR. CUMMINGS: No. DETECTIVE VERRECCHIO: Detective Gaul is showing you a photo array consisting of eight similar looking males. Do you recognize any of these males? MR. CUMMINGS: Yes. The one right here, pointing to the picture of the defendant Jamal Payne. DETECTIVE VERRECCHIO: What did you see this male do? MR. CUMMINGS: He was the one hanging out the window shooting at us when I got shot and [Travis] was killed. DETECTIVE VERRECCHIO: Have you spoken to him since this incident? MR. CUMMINGS: No. DETECTIVE VERRECCHIO: "Who else saw that it was Mal from Lansdowne that night?" MR. CUMMINGS: We all knew that night. DETECTIVE VERRECCHIO: Who was all there when it happened?" MR. CUMMINGS: Me, Ham, Donte and Spence." DETECTIVE VERRECCHIO: How do you know that they knew it was Mal from Lansdowne that night?" MR. CUMMINGS: Because after we all got back we talked and we all saw who it was.7
DETECTIVE VERRECCHIO: Why didn't you tell us who it was when you were first interviewed?
7 N.T. 3/13/2015 at 98-100.
6 MR. CUMMINGS: Because I didn't want to go to court. I don't want to be called a snitch. Snitches get killed in my neighborhood.
DETECTIVE VERRECCHIO: Do you know which person shot you in your hand?" MR. CUMMINGS: I got hit by the car shooter.8
Although, at trial, Cummings disavowed many of the averments made in both
statements to detectives, they were properly admitted as evidence at trial through the
respective testimony of Detective Gaul and Detective Verrecchia.
The testimony of Detective Gaul further corroborated Cummings' and Hack's
identification of Payne as the shooter. At trial, Detective Gaul testified about his August
27, 2009 conversation with Norman Mapp, a former acquaintance of Travis and
Cummings, who had knowledge of the incident and of the individuals involved. Gaul
testified that, shortly after the shooting, Cummings told Mapp "he knew who shot hirn'"
and that it was "Jamal from Lansdowne."? Mapp also indicated that "everybody knew
as far as who was responsible for it."11 At trial, Detective Verrecchia substantiated
Cummings' reference to the shooter as "Jamal from Lansdowne" by confirming that, at
the time of the shooting, Payne resided at 5705 Lansdowne Avenue.
Finally, the collective testimony of Officer Fox, who recovered nine (9) fired
cartridge casings scattered from South 561h Street to below Webster Street, and Officer
Taggart, who retrieved bullets from inside a home located at 710 South ss" Street, from
the front passenger tire of a vehicle parked near 712 South se" Street, and from the
front porch of 712 South 561h Street, further established that shots were fired on South
55th Street. The testimony of Officer Stott confirmed that all nine (9) fired cartridge
8 N.T. 3/13/2015 at 101:7-24. 9 N.T. 3/13/2015 at 74:23. 10 N.T. 3(13/2015 at 75:5-6. 11 N.T. 3/13/2015 at 71 :20-21.
7 casings which were scattered on the sidewalk and street from 712 South 55th Street to
below Webster Street were fired from the same firearm. Further, Officer Stott's
testimony confirmed the actions of Payne shooting from a moving car traveling
southbound on South 561h Street. Lastly, Dr. Collins' testimony established that Travis
sustained a single gunshot wound to his head, which perforated his brain causing his
death.
In consideration of the eye-witness accounts which established that Payne
traveled down South 561h Street and began shooting at the Crowd outside of 712 South
55th Street and then fled in a vehicle driven by his co-conspirator, in conjunction with the
wounds inflicted on the two victims, the evidence supported the jury's finding that Payne
was the shooter. As such, this court, in viewing all the evidence admitted at trial in the
light most favorable to the Commonwealth, has determined that the evidence was
sufficient to enable the jury to find, beyond a reasonable doubt, that Payne was guilty of
Murder of the Third Degree, Conspiracy, Attempted Murder, Aggravated Assault, VUFA
§ 6106, VUFA § 6108, and PIC.
Murder of the Third Degree (victim Troy Travis)
To convict a person of Murder of the Third Degree (F1 ), the Commonwealth must
prove beyond a reasonable doubt that he committed an unlawful killing with malice, but 12 without the specific intent to kill, and not in the course of a felonious act. Malice may
be found to exist not only in an intentional killing, but also in an unintentional homicide
where the perpetrator "consciously disregarded an unjustified and extremely high risk
18 Pa.C.S. § 2502(c); Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super 2011); See also; 12
Commonwealth v Santos, 876 A.2d 360, 363-64 (2005).
8 that his actions might cause death or serious bodily harm."13 Additionally, malice may
be inferred from the use of a deadly weapon upon a vital part of the victim's body.14
Here, the testimony of Hack and Cummings established that Payne leaned out of
the passenger side window of a car with a gun pointed in the direction of the Crowd
outside of 712 South 56th Street. As the vehicle neared the Crowd, the driver slowed
down while Payne shot at the people standing outside; he struck Cummings in his hand
and Travis in his head. In doing so, Payne consciously disregarded an unjustified and
extremely high risk that his actions might cause death or serious bodily injury when he
fired shots at the Crowd and fatally struck Travis in his head, a vital part of the body.
Because malice can be inferred from the use of a deadly weapon upon a vital part of the
victim's body, these facts are sufficient to support Payne's conviction for Murder of the
Third Degree.
Conspiracy (victims Troy Travis and Tyree Cummings)
To convict a person of conspiracy, the Commonwealth must prove that: (1) he
entered into an agreement with another to commit or aid in the commission of a crime;
(2) he shared the criminal intent with that other person; and (3) an overt act was
committed in furtherance of the conspiracy.15 The Superior Court has clarified that "an
explicit or formal agreement to commit crimes can seldom, if ever, be proved and it
need not be, for proof of a criminal partnership is almost invariably extracted from the
circumstances that attend its activities.v'" The Court has further opined that the "overt
13 Com. v. Young, 431 A.2d 230, 232 (Pa. 1981) (citing Com. v. Hare, 404 A.2d 388, 391 (Pa. 1979)). 14 Com. v. Thomas, 54 A.3d 332, 335-36 (Pa. 2012). 15 Com. v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012). 16 Com. v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012). 9 .. -...
act need not be committed by the defendant; it need only be committed by a co-
conspirator."17 With regard to murder of the third degree, the Supreme Court of
Pennsylvania has set forth that "one does not conspire to commit a denominated
offense; one conspires to engage in certain conduct. "18 As such, a conspiracy to
commit murder of the third degree is supported when there is a conspiracy to commit
the conduct leading to the death of the victim and such conduct is being carried out with
the mental state of malice.19
Here, the evidence presented at trial demonstrated that Payne armed himself
with a gun and sat in the passenger seat of a car driven by his co-conspirator. The co-
conspirator drove toward the Crowd outside of 712 South 56th Street, slowing down as
they neared the group. Payne then shot at the Crowd approximately fifteen feet away,
striking Travis in his head and Cummings in his hand. The co-conspirator then sped off.
Payne's actions before and after the shooting were sufficient to support his convictions
for Conspiracy.
Attempted Murder (victim Tyree Cummings)
To convict a person of Attempted Murder (F1), the Commonwealth must prove
beyond a reasonable doubt that he, with a specific intent to kill, took a substantial step
toward committing a homlclde" The Pennsylvania courts have held that a specific
intent to kill may be inferred from the circumstances surrounding an unlawful killing,
17 Id. 18 Com. v. Fisher, 80 A.3d 1186, 1195 (Pa. 2013). 19 /d. 2° Com. v. Robertson, 874 A.2d 1200, 1207 (Pa. 2005) (citing Com. v. Hobson, 604 A.2d 717, 719-20 (Pa. Super. 1992).
10 particularly if the defendant used a deadly weapon to inflict injury to a vital part of the
victim's body.21
Here, Payne leaned out of the passenger side window of a car driven by a co-
conspirator and pointed a gun in the direction of the Crowd outside of 712 South 561h
Street. As the vehicle neared the Crowd, the co-conspirator slowed down and Payne
shot at the Crowd, striking Cummings in his hand and Travis in the head. The
circumstances of this shooting - Payne arming himself with a gun, targeting the Crowd
outside of 712 South 561h Street, slowing down as they drove closer, and shooting at the
Crowd from the passenger side window - support an inference of Payne's specific
intent to kill. Accordingly, the facts are sufficient to support the conviction of Attempted
Murder (F1).
Aggravated Assault (victim Tyree Cummings)
To convict a person of Aggravated Assault (F1 ), the Commonwealth must prove
beyond a reasonable doubt that he attempted to cause serious bodily injury to another,
that he had the specific intent to cause serious bodily injury, and that he took a
substantial step toward perpetrating serious bodily injury on the victim.22 The courts of
this Commonwealth have held that evidence of a defendant's "intent to inflict serious
bodily injury" can "be gleaned from the other circumstances surrounding" the
defendant's attack on the victim.23
21 Com. v. Robertson, 874 A.2d 1200, 1207 (Pa. 2005) (citing Com. v. Geathers, 847 A.2d 730, 737 (Pa. Super. 2004). 22 18 Pa.C.S. 2702(a)(1); Com. v. Fortune, 68 A.3d 980, 988 (Pa. Super. 2013). 23 Com. v. Burton, 2 A.3d 598, 602 {Pa. Super. 2010) (citing Com. v. Alexander, 383 A.2d 887 (Pa. 1978)).
11 ·~·.
Here, the testimony of Cummings and Hack established that Payne armed
himself with a gun and rode toward the Crowd outside of 712 South 561h Street. Payne
then fired into the Crowd approximately fifteen feet away and struck Cummings in his
hand and Travis in his head. These facts are sufficient support Payne's conviction for
Aggravated Assault.
VUFA § 6106. VUFA § 6108
To convict a person of VUFA § 6106, the Commonwealth must prove beyond a
reasonable doubt that he carried a firearm in any vehicle or concealed on or about his
person, except in his place of abode or fixed place of business, without a valid and
lawfully issued license.24 To convict a person of VUFA § 6108, the Commonwealth
must prove beyond a reasonable doubt that he carried a firearm at any time upon the
public streets or upon any public property in a city of the first class without a license to
carry a firearm or without a licensing exemption.25
Here, the testimony of Hack and Cummings established that Payne leaned out of
the passenger side window of car traveling southbound on South 561h Street with a gun
pointed in the direction of the Crowd outside of 712 South 561h Street. Additionally, at
trial, the Commonwealth presented a certificate of non-licensure for Payne establishing
that he was not licensed to carry a firearm on August 6, 2009.26 These facts are
sufficient to support both VUFA convictions.
24 18 Pa.C.S. § 6106{a). 25 18 Pa.C.S. § 6108. 26 N.T. 3/13/2014 at 155: 6-17.
12 . .-.....
To convict a person of PIG, the Commonwealth must prove beyond a reasonable
doubt that he possessed an instrument of crime with intent to employ it criminally.27 The
statute defines an "instrument of crime" as (1) anything specially made or specially
adapted for criminal use or (2) anything used for criminal purposes and possessed by
the actor under circumstances not manifestly appropriate for lawful uses it may have.28
Here, the testimony of Hack and Cummings established that Payne leaned out of the
passenger seat window of a car traveling southbound on South 561h Street and pointed
a firearm at the Crowd standing outside of 712 South 561h Street. These facts are
sufficient to support the conviction for PlC.
Weight of the evidence
The standard of review for a challenge to the weight of evidence is well settled in
Pennsylvania. The fact finder is the exclusive judge of the weight of evidence, is free to
believe all, part, or none of the evidence presented, and determines the credibility of the
witnesses.29 An appellate court cannot substitute its judgment for that of the fact
finder.30 A verdict will be reversed and a new trial granted only where the verdict is so
contrary to the evidence as to "shock one's sense of justice."31 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 come to another conclusion.32 Pennsylvania appellate courts
27 18 Pa.C.S. § 907(a). 28 18 Pa.C.S. § 907(d). 29 Com. v. Champney, 832 A.2d 403, 408 (Pa. 2004). 30 Id. 31 Com. v. Passmore, 857 A.2d 697, 708 (Pa. Super. 2004). 32 Thompson v. City of Philadelphia, 493 A.2d 669, 673 {Pa. 1985).
13 have repeatedly emphasized that "[oJne 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. "33 Additionally, a challenge to the weight of the evidence
that is too vague to allow the court to identify the issue raised on appeal is deemed to
be waived.34
On appeal, Payne asserts that the adjudication of guilt is against the weight of
the evidence and shocking to one's sense of justice where the ballistics evidence
demonstrated that there was only one shooter, where the first police on the scene were
only given a description of one shooter, where the defendant's physical appearance did
not match the description of the shooter given by eyewitnesses, where the defendant
was implicated years after the crime by unsubstantiated rumor, where witnesses who
gave statements to police were motivated by self-preservation and gave inconsistent
statements, and where witnesses admitted at trial that they lied to the police. This court
similarly disagrees with this claim, having found the weight of the evidence to support
the jury's verdict.
At trial, the jury heard testimony from two eyewitnesses, Donte Hack and Tyree
Cummings, both of whom independently identified Payne as the shooter to law
enforcement. Although the trial testimony of Hack and Cummings was not entirely
consistent with their previous statements to law enforcement, a mere conflict in the
testimony does not warrant the grant of a new trial. Further, the jury heard testimony
from Or. Collins, the firearms examiner, and numerous members of the Philadelphia
Police Department which corroborated the eye-witnesses' collective account of the
33 See Com. v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005); See also Com. v. Brown, 648 A.2d 1177 tPa. 1994). 4 Com. v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002).
14 shooting. The jury, as the fact-finder, assessed the credibility of each witness and was
free to believe all, part, or none of their testimony at trial when making the relevant
factual determinations.
When this court charged the jury prior to deliberations, the jury was given the
following instruction:
Remember, as the sole judges of credibility and fact, you the jurors are responsible to give the testimony of every witness and all the other evidence whatever credibility and weight you think it deserves. Now, if you find that there is a conflict in the testimony, the jury has the duty of deciding which testimony to believe, but you should first try to reconcile -- that is, fit together -- any conflicts in the testimony if you can fairly do so.
Discrepancies and conflicts between the testimony of different witnesses may or may not cause you to disbelieve some or all of their testimony. Remember that two or more persons witnessing an incident may see or hear it happen differently. Also, it is not uncommon for a witness to be innocently mistaken in his or her recollection of how something happened. lf you cannot reconcile a conflict in the testimony, it is up to you to decide which testimony, if any, to believe and which to reject as untrue or inaccurate. In making this decision, consider whether the conflict involves a matter of importance or merely some unimportant detail and whether the conflict is brought about by an innocent mistake or by an intentional falsehood. You should also keep in mind the other factors already discussed which go into deciding whether or not to believe a witness. In deciding which of conflicting testimony to believe, you should not necessarily be swayed by the number of witnesses on either side of an issue. You may find that the testimony of a few witnesses, even of just one witness, is more believable than the opposing testimony on a particular issue of a greater number of witnesses. On the other hand, you should also consider the extent to which conflicting testimony is supported by other evidence.35
The jury was properly instructed by this court on assessing the testimony and the
verdict returned against Payne illustrated that the jury found the eye-witnesses to be at
least partially credible. Although this court acknowledged the inconsistencies in the
witnesses' testimony, this court cannot isolate eyewitness testimony from the testimony
35 N.T. 3/14/2014 at 16:25;17:2-25;18:2-16
15 provided by five police officers and two detectives, as well as all other material evidence
admitted at trial. The determination of whether the jury verdict is against the weight of
the evidence requires an assessment of all of the evidence presented at trial, so while
inconsistencies or bias may exist in certain witness testimony, it does not mandate a
finding that the verdict is against the weight of the evidence. Further, the jury verdict,
reflecting the jury's assessment of the weight of the evidence, was not so contrary to the
evidence presented at trial as to "shock one's sense of justice." Therefore, this court
finds no merit in Payne's challenge to the weight of the evidence presented at trial.
CONCLUSION
For the reasons set forth in this Opinion, the Superior Court should affirm the
jury's finding of guilt and the sentence imposed in this matter.
16 First Judicial District of Pennsylvania Honorable Linda A. Carpenter 1418 Criminal Justice Center 1301 Filbert Street Philadelphia, PA 19107
Commonwealth v. Jamal Payne CP-51-CR-0004095-2013
Date: April 30, 2015
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing upon the person(s), and in the manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:
Defense Counsel/Party: Gary Server, Esq. 52103 Delaire Landing Road Philadelphia, PA 19114.
Type of Service: ( ) Personal ( X ) First Class Mail ( ) Other, please specify: _
District Attorney: Hugh J. Burns, Jr., Esq. Philadelphia District Attorney's Office Three South Penn Square Philadelphia, PA 19107 - 3499
Type of Service: ( ) Personal ( X ) First Class Mail ( ) Other, please specify: _
1Aet Brinkman