Com. v. Turner, N.

• Court: Superior Court of Pennsylvania
• Decided: June 9, 2016
• Docket: 2601 EDA 2014
• Status: Unpublished

Opinion

J-A12034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

NAFEESE TURNER,

Appellant No. 2601 EDA 2014

Appeal from the Judgment of Sentence August 8, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014345-2013

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 09, 2016

This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following Appellant’s conviction by a

jury on the charges of aggravated assault, carrying a firearm without a

license, carrying firearms in public in Philadelphia, possessing an instrument

of crime, and conspiracy.1 Appellant presents sufficiency of the evidence

claims. We affirm.

The relevant facts and procedural history are as follows: Appellant

was arrested and, represented by counsel, he proceeded to a jury trial with

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1 18 Pa.C.S.A. §§ 2702(a)(1), 6106(a)(1), 6108, 907(a), and 903(c), respectively. The jury acquitted Appellant on the charges of attempted murder, 18 Pa.C.S.A. § 901(a), and conspiracy (to commit attempted murder), 18 Pa.C.S.A. § 903(c).

*Former Justice specially assigned to the Superior Court. J-A12034-16

Markel Davis (“Davis”) as his co-defendant. At trial, the Commonwealth

offered the testimony of several witnesses; however, the defense offered no

witnesses.

Specifically, Police Officer Robert Ellis testified that, on September 9,

2013, he was on patrol with his partner, Police Officer Cyrus Pollard, when

they received a radio call for shots fired initially “in the 1800 block of Corlies

Street, and then. . .3018 Mifflin Street[,]” which is in a “nice neighborhood.”

N.T., 5/7/14, at 139, 148. Officer Ellis testified the officers arrived at the

3018 Mifflin Street residence within three to five minutes of receiving the

radio call, and they were the third police vehicle to arrive. Id. at 140.

Officer Ellis exited the police vehicle and followed other responding officers

into the house where he immediately noticed Enrico Lofton (“Lofton”) had

been shot in the arm. Id. at 141. Lofton yelled out, “I was in a[n]

argument.” Id. at 170, 176. Officer Ellis also observed a male teenager,

who was small, thin, and light-skinned, inside of the house. Id. at 141, 144.

However, since Lofton was clearly in pain and bleeding profusely, Officer

Ellis’ focus remained on Lofton. Id. at 141-143. Officer Ellis assisted Lofton

to a police vehicle and then transported him to the hospital, where hospital

personnel discovered narcotics on Lofton’s person. Id. at 145.

Officer Ellis indicated that, during the transport, Lofton said he was

shot in the driveway of 1818 Corlies Street, which is approximately 150 feet

from 3018 Mifflin Street, and his “little brother” was with him during the

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shooting. Id. at 150-51, 164. Upon arrival at the hospital, Lofton provided

the police with a description of two men, who were involved in the shooting.

Id. at 166-67, 176. Specifically, Lofton told the officers two black males

were involved, both of whom wore dark clothing. Id. at 167. Lofton further

indicated one of the men was approximately 5’10’’ tall, weighed

approximately 180 pounds, and had a full beard. Id. Lofton then asked the

officers if his “little brother” was still in the house, and Officer Ellis assumed

he was talking about the teenager he had noticed previously in the house.

Id. at 164. Officer Ellis and his partner immediately radioed to their fellow

officers all of the information that they had gathered from Lofton. Id. at

167.

Officer Pollard confirmed that upon arrival Officer Ellis ran into the

house at 3018 Mifflin Street; however, he remained outside. Id. at 179. At

the hospital, he was present when a package of narcotics fell out of Lofton’s

pocket as hospital personnel were cutting off his clothes. Id. at 181.

Lofton testified he was convicted of “dealing heroin” in 2011 and 2012,

and he was on probation when he was shot on September 9, 2013. N.T.,

5/8/14, at 23-24. Lofton testified that he spent a lot of time with his

paramour, and he treated her fifteen-year-old brother, Carlos, as his little

brother. Id. at 25-27. He indicated he took Carlos “under [his] wing like

[a] little brother.” Id. at 27.

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At some point, Lofton’s paramour’s mother talked to him about the

fact Carlos was “running the streets and selling drugs.” Id. Because Lofton

did not want to see Carlos follow in his footsteps, he talked to the teenager,

who told him the people for whom he was selling drugs. Id. at 27-28.

Carlos also turned over to Lofton a pack of crack cocaine, which the men had

given him to sell. Id. at 30.

Lofton decided to confront the men, so about two weeks prior to the

shooting, during the daylight hours, he travelled with Carlos to Mifflin Street.

Carlos then pointed out the two people for whom he was selling drugs. Id.

at 28-29. Lofton confirmed the two men to which Carlos pointed were

Appellant and Davis. Id. at 29.

Lofton testified he walked up to the two men, stood four feet from

them, told them to leave Carlos alone because he was “too young for the

business,” and gave them back the crack cocaine. Id. at 30-31. Lofton

indicated the two men were standing “side by side,” he could clearly see

their faces, and when he told them to leave the teenager alone, Davis said

he “respected that.” Id. at 32. Lofton said he then “fist bumped” the two

men and left the conversation on good terms. Id. at 33.

However, two weeks later, Lofton was inside the residence at 3018

Mifflin Street watching a football game when he heard a commotion going on

outside. Id. at 34. He went outside and saw Carlos standing with Appellant

and Davis. Id. Lofton then testified the following occurred:

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Q: And what did you do when you went outside? A: Confronted them again. *** Q: What did you say? A: We started arguing back and forth. *** Q: Carlos there? A: Yes. Q: And what did you find out at that time? A: That he gave Carlos something. Q: I can’t understand you. A: He gave Carlos drugs, and I asked Carlos where it’s at, and he acted like he didn’t want to give it to me, so I took it from him. THE COURT: I’m sorry. I didn’t hear that. Q: You [have] to speak up, [Lofton]. A: What I say—I said I guess they gave Carlos drugs again, and I asked Carlos where was it at, and he said he’s not giving it to me. So I checked Carlos and I took it from him. Q: Did Carlos have drugs on him? A: Yes. Q: What kind of drugs did he have on him then? A: Heroin. Q: Anything else? A: Crack. Q: And where was it that you took [the drugs] from him? A: His waistband. Q: Did he tell you—did Carlos tell you anything about what they were arguing over? A: No. *** Q: So you took the drugs from Carlos. What did you do with them? A: I told them they ain’t getting them back. Q: You told who they ain’t getting them back? A: Those two. Q: Indicating the defendants, [Davis and Appellant]? A: Yes. Q: What did they do—or what did they say when you said that? A: They said, who the fuck I think I am, and that’s when I said— Q: I need you to talk—

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A: They asked who the fuck do I think I am, and I asked who the fuck they think they be. Q: Okay. So then what happened? A: I don’t remember, just standing there, but—I forgot what they said, but that’s when they rode off and I walked off. And shots were fired. Q: Who said that? Who said, “Who the F do you think you are?” A: I believe [Appellant]. Q: [Appellant] said that? Did [Davis] say anything? A: No. He just looking stupid. Q: I’m sorry. A: He looking stupid. Q: How far apart were they when [Appellant] said that? A: Side by side, I guess. Side by side. Q: Side by side? A: Yes. *** Q: I’m going to ask you again to tell me when to stop as I walk closer when how far—close they were— A: Where you were there before. Q: Same spot? A: Same spot. Q: About four feet away from you? A: Yes. Q: Were they both side by side then? A: Yes. Q: Anything covering their faces? A: No. Q: Were there lights on where you were? A: Street lights. Q: Okay. What did they say to you, if anything, about the drugs that you took from Carlos? A: I guess they wanted it back, and I told them they ain’t getting shit back. Q: When you say “guess,” were they asking for it back? A: Yeah. Q: Which one asked for it back? A: [Davis]. Q: [Davis]? A: Yeah. Q: What did [Appellant], if anything, say about the drugs? A: Start[ed] running his mouth or something.

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Q: Okay. Well, I know you already said he was just running his mouth. What was he saying? A: Shit-talking. Q: Like what? A: Cosigning and everything. Cosigning. Q: Cosigning? A: Whatever [Davis] say, he was cosigning. Q: So [Appellant] would repeat what[ever] [Davis] was saying? A: Yeah, something like that. Q: Saying the same exact thing or something different? A: No, something different. . .different way. Q: Can you tell the jury what you heard [Appellant] saying? A: I don’t remember right now. Q: What do you remember [Davis] saying? A: “We want our shit back.” I said, “ You ain’t getting your shit back.” And he said, “We got something for you.” I said, “Come on with it.” Q: They said they got something for you? A: Yeah. Q: Which one said that? A: [Davis]. Q: Did [Appellant] say anything along those lines? A: No, he just looking dumb. Q: Okay. How far apart was [Appellant] standing when [Davis] said that? A: They was side by side. Q: How long was, as you call it, that “shit-talking” going on? A: Like five minutes.

Id. at 35-42.

Lofton testified he told the men he was going to flush the narcotics

down the toilet, and they became upset. Id. at 43. Lofton watched as the

two men, who were “side by side,” started to ride off on their bikes, and as

he began to walk away in the opposite direction, he turned in time to see

Davis shooting in his direction. Id. at 45. One of the bullets struck Lofton

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in the front of his right bicep, and after he went into the house, his

paramour telephoned the police. Id. at 47.

Prior to the shooting, Lofton did not observe either of the two men in

possession of the handgun. Id. at 49. Lofton testified that, the day after

the shooting, he picked out Appellant’s and Davis’ photos from police photo

arrays. Id. at 56-57. Also, on that date, he gave a statement to the police

indicating Davis shot him, but that Appellant was with him and had done “all

of the talking.” Id. at 58-64. At trial, Lofton again identified Davis as the

man who shot him, and Appellant as the man who was “with him talking shit

when [he was] shot.” Id. at 69.

Lofton admitted that, at no point, did he observe Appellant in

possession of the firearm. Id. at 76. However, he indicated that, when he

told the men he was not giving the narcotics back to them, Davis said, “We

got something for you[,]” and Appellant said to Davis, “Say no more.” Id.

at 106.

Detective Michael Ferry testified the shooting occurred at 1818 South

Corlies Street, and the police found three 9 millimeter fired cartridge casings

in the vicinity. Id. at 120-21.

Detective John Landis confirmed that, the day after the shooting,

Lofton chose Appellant’s and Davis’ photos from photo arrays. Id. at 160.

Specifically, he confirmed Lofton chose Davis as the shooter, and he chose

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Appellant as the person with Davis and “doing all the talking.” Id. at 164-

65.

The Commonwealth offered into evidence various stipulations made

between the parties, including the fact that neither Davis nor Appellant had

a valid license to carry a firearm. N.T., 5/9/14, at 65-66. The parties also

stipulated to the content of telephone calls, which Appellant made from

prison. Id. 66-67. Specifically, the parties stipulated that, in one telephone

call, Appellant asked someone to offer Carlos (or someone in his family)

money in exchange for Carlos saying the incident was a “misunderstanding.”

Id. at 67-71; Trial Court Pa.R.A.P. 1925(a) Opinion, filed 6/5/15, at 7.

At the conclusion of all testimony, the jury convicted Appellant of the

offenses indicated supra. The trial court sentenced Appellant to four years

to eight years in prison for aggravated assault, three years to six years in

prison for conspiracy, and one year to two years in prison for carrying a

firearm without a license, the sentences to run consecutively. No further

penalty was imposed for the remaining convictions. This timely appeal

followed,2 and all Pa.R.A.P. 1925 requirements have been met.

Appellant presents sufficiency of the evidence claims. Specifically, he

alleges the evidence reveals he was merely present when Davis shot Lofton

2 Davis, who was also convicted and sentenced on numerous charges in connection with the shooting, has filed a separate appeal. His appeal is docketed at 2489 EDA 2014 and shall be addressed in a separate decision.

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and, thus, the evidence is insufficient to sustain any of his convictions under

a conspiracy or accomplice theory. As to his possession convictions,

Appellant offers the alternate argument that the evidence is insufficient to

establish he actually or constructively possessed the handgun. Finally,

Appellant suggests the lack of evidence is not “sufficiently buttressed by

[Appellant’s] foolish phone call.”

The standard we apply when reviewing the sufficiency of the 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. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and 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 circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier 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 the evidence. Furthermore, when reviewing a sufficiency claim, our Court is required to give the prosecution the benefit of all reasonable inferences to be drawn from the evidence. 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. 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.

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Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)

(quotation and citation omitted).

We have carefully reviewed the detailed opinion filed by the Honorable

Denis P. Cohen, and we conclude it ably addresses and rejects Appellant’s

challenges to the sufficiency of the evidence. See Trial Court Pa.R.A.P.

1925(a) Opinion, filed 6/5/15, at 7-14. Specifically, (1) as to Appellant’s

conviction for aggravated assault, the trial court rejected Appellant’s “mere

presence” argument and concluded the evidence is sufficient to sustain

Appellant’s conviction under an accomplice-liability theory, Id. at 7-10; (2)

as to Appellant’s conviction for conspiracy (to commit aggravated assault),

the trial court concluded the evidence is sufficient to sustain Appellant’s

conspiracy conviction, Id. at 10-12;3 (3) as to Appellant’s possessory

convictions (carrying a firearm without a license, carrying firearms in public

in Philadelphia, and possessing an instrument of crime), the trial court

applied our Supreme Court’s recent decision in Commonwealth v. Knox, -

___ Pa. ___, 105 A.3d 1194 (2014), and concluded that, despite the fact

Appellant did not possess the handgun during the shooting, the evidence is

sufficient to sustain Appellant’s possessory convictions under an offense-

specific accomplice-liability theory, Id. at 12-13; and (4) as to Appellant’s

3 For further discussion of the elements necessary to sustain a conviction for conspiracy (to commit aggravated assault), see Commonwealth v. Thomas, 65 A.3d 939 (Pa.Super. 2013).

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conviction for conspiracy (to commit carrying a firearm without a license,

carrying firearms in public in Philadelphia, and possessing an instrument of

crime), the trial court concluded the evidence is sufficient to establish

Appellant conspired with Davis in this regard, Id. at 13-14.4, 5

We agree with the trial court’s reasoning and rely on it for purposes of

this appeal. Accordingly, we affirm and direct the parties to attach a copy of

the trial court opinion in the event of further proceedings.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/9/2016

4 For further discussion of conspiracy to commit possessory firearm offenses, see Commonwealth v. Gross, 627 Pa. 383, 101 A.3d 28 (2014). 5 We note the trial court properly considered Appellant’s telephone calls, which he made in prison following the shooting, in conducting a sufficiency of the evidence analysis. Trial Court Pa.R.A.P. 1925 Opinion, filed 6/5/15, at 9, 14 n.14. See Commonwealth v. Bradley, 69 A.3d 253, 258 (Pa.Super. 2013) (“It has long been recognized that a defendant's attempts to cover up after a crime can be inferred to demonstrate a consciousness of guilt.”) (citation omitted).

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