J-S45026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JUSTIN AHMAD CLARK

                            Appellant                No. 2005 MDA 2014


            Appeal from the Judgment of Sentence of June 23, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0002723-2013


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                               FILED JULY 21, 2015

       Justin Ahmad Clark appeals from the judgment of sentence entered on

June 23, 2014. We affirm.

       In this case, Clark was charged with criminal homicide, 18 Pa.C.S.A.

§ 2501; attempted criminal homicide, 18 Pa.C.S.A. § 901 (§ 2501); and

carrying a firearm without a license, 18 Pa.C.S.A. § 6106.        The trial court

summarized the basic factual history of this case as follows:

       [On March 9, 2013,] Rob Burris was walking near the
       intersection of Mayflower and 14th Street, in the Allison Hill
       section of the City of Harrisburg, when he was struck and killed
       by a bullet to his head. Jonathan Ramsey (“Ramsey”) testified
       that Clark asked him for a ride to Vernon Street in Harrisburg,
       Pennsylvania, because he wanted to confront an individual
       named Bennie Chisolm. Ramsey drove with Clark in the front
       passenger seat to 14th and Vernon, at which point Clark
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
J-S45026-15


     indicated that he saw an individual known to associate with
     Chisolm, nicknamed “Mano.” Clark told Ramsey to “spin the
     block,” and Ramsey proceeded to drive down 14th Street, turn
     onto Market and then turn onto Mayflower. While Ramsey was
     driving around the block he saw Clark retrieve a gun from his
     clothing.   Clark instructed Ramsey to pull up at 14th and
     Mayflower and to stop. Clark then rolled down the window and
     started shooting towards a group of people. Rob Burris suffered
     a gunshot wound to the back of his head. Based on the location
     of the wound and the bullet’s trajectory, Rob Burris, most likely,
     died instantaneously.

Trial Court Memorandum and Order (“T.C.M.”), 10/10/2014, at 1-2 (citations

to record omitted).

     Clark was two weeks shy of his eighteenth birthday at the time of the

shooting. A jury trial commenced on April 22, 2014.

     At trial, Chisholm testified that he and Clark had gotten into a physical

fight late in the summer of 2012.      Notes of Testimony (“N.T.”), 4/21-

25/2014, at 53-55. Chisolm testified that he and Clark had a verbal run-in

in February 2013 when “[n]o guns were drawn, they were just shown.” Id.

at 60-63. Later, Chisholm shot at Clark’s brother with a 20-gauge sawed-off

shotgun after striking Clark in the head with the same gun. Id. at 64-72.

On March 9, 2013, Chisholm was with Burris and others when the shots

were fired from behind him. Id. at 80-82.

     Aja Lewis knew Chisholm, Clark, Burris, and Clark’s brother.      Id. at

98-102. Lewis testified that she saw Clark in the passenger seat of a car on

the day Burris was killed. Id. at 103-04. Lewis called Chisholm because she

knew he was in the area and she suspected that Clark was going after



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Chisholm. Id. at 105-06. About twenty minutes later, Lewis learned that

Burris had been killed. Id. at 107.

       Ramsey testified that he knew both Chisholm and Clark and knew

about the problems between them. Id. at 171-76. Ramsey testified that he

was driving when Clark stopped him and asked for a ride to go fight

Chisholm. Id. at 186-87. At that point, Ramsey did not know Clark had a

gun.   Id. at 194.   Clark told Ramsey to pull the car over, and then Clark

rolled down the window and started shooting into a group of people. Id. at

195-96. Ramsey drove home with Clark and Clark decided that they should

go to a basketball game to establish an alibi.   Id. at 197-99.    They saw

Devacio McGowan, picked him up, and then switched to Clark’s car. Id. at

101-02.   McGowan told them that someone had been shot so they drove

over to see what happened.      Id. at 205.   While they were watching the

scene, Clark told McGowan that he was the shooter. Id. at 206-07.

       The three men then went to the basketball game. Id. at 208. At the

basketball game, they found out that Burris had been killed.      Id. at 209.

After the game, Clark dropped McGowan and Ramsey off, and told Ramsey

that he was going to Lancaster. Id. at 211-12.

       McGowan confirmed that he went to a basketball game with Ramsey

and Clark.   Id. at 286.   Because McGowan’s testimony differed from      his

prior statement to police, McGowan read portions of that statement in which

he told police that Clark admitted to the shooting to the jury. Id. at 303,

305.    However, McGowan stated that he was high when he gave the

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statement and had no memory of it.             Id. at 301-04. The Commonwealth

then played McGowan’s recorded statement to the police for the jury. Id. at

311.1

        Clark testified in his defense that he did not shoot Burris, but admitted

that he disposed of the gun that was used in the shooting.          Id. at 473.

Clark testified that he was at the basketball game when his brother

approached him and asked Clark to dispose of a gun. Id. at 474-76. Clark

also said that his brother was carrying Clark’s phone at the time of the

shooting. Id. at 478. Clark testified that, after he received the gun from his

brother, he drove into Harrisburg to sell drugs and get some money, and

then he drove to Lancaster. Id. at 479-81. Clark claimed that he sold the

gun to someone named Kurt in Lancaster. Id. at 483-84.

        On April 25, 2014, the jury found Clark guilty of first degree murder,

attempted murder, and carrying a firearm without a license. The trial court

requested a pre-sentence investigation report (“PSI”) and a sentencing

memorandum from Clark and the Commonwealth. On June 23, 2014, the

trial court sentenced Clark to life without parole on the homicide conviction.

____________________________________________


1
       The Commonwealth also presented the testimony of various police
officers who detailed the circumstances of the arrests of and statements
from the various individuals involved, testimony regarding ballistics and the
recovery of the gun used in the shooting, testimony regarding Clark’s
cellphones and the discovery of information that showed the location of the
phones, and medical testimony about the cause and manner of Burris’
death.



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Clark also was sentenced to twenty to forty years in prison for attempted

homicide and three to six years’ incarceration for the carrying a firearm

without a license conviction. All sentences were ordered to run concurrently.

      On June 26, 2014, Clark timely filed a post-sentence motion in which

he challenged the discretionary aspects of his sentence and the weight of the

evidence. After briefing, on October 8, 2014, the trial court heard argument

on the motion. On October 10, 2014, the trial court denied the motion. No

direct appeal was filed.

      On November 12, 2014, Clark filed a petition for relief pursuant to the

Post Conviction Relief Action (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.        In his

petition, Clark sought reinstatement of his direct appeal rights, alleging that

his counsel was per se ineffective for failing to file an appeal.          The

Commonwealth did not object to reinstatement of Clark’s appellate rights.

On November 18, 2014, the PCRA court granted Clark’s PCRA petition.

      On November 25, 2014, Clark timely filed a notice of appeal.          On

December 1, 2014, the trial court ordered Clark to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Clark

timely complied.

      Clark raises three issues for our review:

      I.    Whether the trial court abused its discretion in refusing to
            allow Commonwealth’s Exhibit 47 – a prison note written
            by [Clark] – and Defense Exhibit 2 – a witness’ recantation
            letter – to go out with the jury during its deliberations?

      II.   Whether the trial court erred in denying [Clark’s] Post-
            Sentence Motion where [Clark’s] convictions were against

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             the weight of the evidence so as to shock one’s sense of
             justice as [Clark] was never shown to have committed the
             crimes alleged?

      III.   Whether the trial court erred in denying [Clark’s] Post-
             Sentence Motion where [Clark’s] sentence was excessive
             and unreasonable as the trial court failed to consider
             statutorily prescribed factors pursuant to 18 Pa.C.S.A.
             [§] 1102.1(d)?

Clark’s Brief at 6.

      Clark first challenges the trial court’s decision not to allow certain

exhibits to be viewed by the jury during its deliberations. Clark asserts that

the trial court erred when it did not allow the jury to take with it during

deliberations a note written by Clark to Ramsey and a letter purportedly

written by Ramsey in which he recanted his statements about Clark’s

involvement in the crime. Clark argues that both exhibits speak to Clark’s

and Ramsey’s credibility, which were paramount in this case. Clark’s Brief at

16-18.

      We review a trial court’s decision regarding which exhibits go with a

jury for an abuse of discretion. Commonwealth v. Bango, 685 A.2d 564,

565 (Pa. Super. 1996). By rule, “the jury may take with it such exhibits as

the trial judge deems proper.”     Pa.R.Crim.P. 646(A).     However, certain

exhibits, such as transcripts of testimony, written confessions, and the




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criminal information or indictment, are not permitted to go with the jury.2

Pa.R.Crim.P. 646(C).

       In a similar case, a defendant asked the trial court to provide the jury

with a letter written by a Commonwealth witness that cast doubt on his

credibility.   Commonwealth v. Bridges, 757 A.2d 859, 877 (Pa. 2000),

abrogated on other grounds by Commonwealth v. Freeman, 827 A.2d

385, 412 (Pa. 2003). The trial judge refused to do so, holding that the letter

would have unnecessarily highlighted that piece of evidence. Id. at 877-78.

Our Supreme Court found no abuse of discretion based upon that reason and

also because “the jury was well aware of the letter” as the witness had been

cross-examined about the letter, the contents had been read into evidence,

and it was part of closing arguments. Id. at 878.

       Here, the jury asked to see three exhibits: the two at issue on appeal

and the text messages from Clark’s phone, a defense exhibit. N.T., 4/21-

25/2014, at 624-25.        The parties and the trial court agreed that the text

messages could go out with the jury. Id. at 625. However, the trial court

did not allow the other two exhibits because “[t]hey’re formal statements

which the [trial court] typically does not send out to the jury. The parties

both emphasized and displayed portions that they wanted the jury to

consider.” Id.

____________________________________________


2
      The jury charge also is not permitted to go with the jury, subject to
certain exceptions. See Pa.R.Crim.P. 646(B), (C).



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      The letter written by Clark was read to the jury by Ramsey and the

Commonwealth published a copy to the jury.             Id. at 219-21.     The

Commonwealth examined Ramsey about the letter. Id. at 221-24. Ramsey

was cross-examined about the letter.     Id. at 226-27.   Clark also testified

about the letter and what he meant in the letter. Id. at 469-73. Clark was

also cross-examined about the letter. Id. at 502-05.

      Ramsey also was questioned about the recantation letter which Clark

introduced during Ramsey’s cross-examination.      Ramsey denied writing or

signing the letter. Id. at 252-53, 254-56. Clark later introduced the letter

through Ramsey’s former cellmate, Raymond Jones, who testified that he

witnessed Ramsey write the recantation letter and that he signed the letter

as a witness. Id. at 425-26. Jones read the letter into evidence.       Id. at

426-27.

      Clearly, both pieces of evidence were highlighted to the jury. As with

Bridges, both letters were read into evidence. Both letters were covered in

direct and cross-examination.    Based upon Bridges, we find no abuse of

discretion by the trial court in refusing to permit the letters to go out with

the jury.

      Clark next challenges the weight of the evidence supporting his

conviction and the trial court’s denial of his post-sentence motion.      Our

standard of review on a challenge to the weight of the evidence is entwined

with the trial court’s review of the same challenge:




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     A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. Commonwealth v. Widmer, 744 A.2d 745,
     751–52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177,
     1189 (Pa. 1994). A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Widmer,
     744 A.2d at 752. Rather, “the role of the trial judge is to
     determine that ‘notwithstanding all the facts, certain facts are so
     clearly of greater weight that to ignore them or to give them
     equal weight with all the facts is to deny justice.’” Id. at 752
     (citation omitted). It has often been stated that “a new trial
     should be awarded when the jury’s verdict is so contrary to the
     evidence as to shock one’s sense of justice and the award of a
     new trial is imperative so that right may be given another
     opportunity to prevail.” Brown, 648 A.2d at 1189.

     An appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question of
        whether the verdict is against the weight of the evidence.
        Brown, 648 A.2d at 1189. Because the trial judge has
        had the opportunity to hear and see the evidence
        presented, an appellate court will give the gravest
        consideration to the findings and reasons advanced by the
        trial judge when reviewing a trial court’s determination
        that the verdict is against the weight of the evidence.
        Commonwealth v. Farquharson, 354 A.2d 545 (Pa.
        1976). One of the least assailable reasons for granting or
        denying a new trial is the lower court’s conviction that the
        verdict was or was not against the weight of the evidence
        and that a new trial should be granted in the interest of
        justice.

     Widmer, 744 A.2d at 753 (emphasis added).

     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered.        In
     describing the limits of a trial court’s discretion, we have
     explained:



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          The term “discretion” imports the exercise of judgment,
          wisdom and skill so as to reach a dispassionate conclusion
          within the framework of the law, and is not exercised for
          the purpose of giving effect to the will of the judge.
          Discretion must be exercised on the foundation of reason,
          as opposed to prejudice, personal motivations, caprice or
          arbitrary actions. Discretion is abused where the course
          pursued represents not merely an error of judgment, but
          where the judgment is manifestly unreasonable or where
          the law is not applied or where the record shows that the
          action is a result of partiality, prejudice, bias or ill-will.

     Widmer, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger
     Co., 625 A.2d 1181, 1184–85 (Pa. 1993)).

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

modified).

     Clark makes the same claims here as he did in his post-sentence

motion, namely that Ramsey’s testimony and McGowan’s prior statement

that Clark was the shooter were unreliable.        In response, the trial court

stated:

     Here, in addition to the eye witness testimony of Jonathan
     Ramsey and the prior statement given by Devacio McGowan, the
     facts supporting Clark’s conviction were substantial.          The
     Commonwealth presented testimony from Bennie Chisolm that
     Clark had a motive to kill Bennie, and that Rob was with Bennie
     when Rob was shot and killed. Aja Lewis testified for the
     Commonwealth that she saw Clark in a car in the vicinity of the
     shooting at the time of the shooting, that she warned Bennie
     that Clark was in the area, and that Bennie called her later to tell
     her that the people she warned him about killed Rob. The
     Commonwealth also presented evidence that a cellphone linked
     to Clark was in the vicinity of the shooting around the time the
     shooting happened, then was taken to Hershey, and finally taken
     to Lancaster.     The location of the cell phone at the times
     specified correlated with Jonathan Ramsey’s account of where he
     went with Clark after the shooting, and where Clark said he was
     going to dispose of the gun.


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      The only evidence presented that Clark was not the shooter was
      his own testimony. [The trial court found] that Clark’s testimony
      was not credible, and that it should certainly not be given
      greater   weight   than   the    overwhelming evidence        the
      Commonwealth presented of Clark’s guilt.

T.C.M. at 3.

      As the trial court noted, there was evidence that corroborated

Ramsey’s testimony and that the testimony supported the verdict. The trial

court found that the jury’s verdict did not shock its conscience.    We must

give the utmost deference to the trial court’s conclusions regarding the

weight of the evidence. See Clay, supra. We find no reason in the record

to determine that the trial court abused its discretion in reaching that

conclusion.

      Finally, Clark challenges the discretionary aspects of his sentence.

      “It is well-settled that, with regard to the discretionary aspects
      of sentencing, there is no automatic right to appeal.”
      Commonwealth v. Austin, 66 A.3d 798, 807–08 (Pa. Super.
      2013).

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the
         concise statement raises a substantial question that the
         sentence is appropriate under the sentencing code. . . .
         [I]f the appeal satisfies each of these four requirements
         we will then proceed to decide the substantive merits of
         the case.

      Id. (brackets in original).


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Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014).

      Here, Clark has filed a timely notice of appeal and has preserved the

issue in his written post-sentence motion.   Clark also has included a Rule

2119(f) statement in his brief. Clark’s Brief at 13-15. Our next step is to

determine whether Clark has raised a substantial question.

      In his Rule 2119(f) statement, Clark argues that his life sentence is

excessive and asserts that there were factors that the court did not consider

adequately. Clark’s Brief at 13-15. We have held previously that a similar

claim of failure to consider sentencing factors in a challenge to a life

sentence for a juvenile raised a substantial question.   Commonwealth v.

Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014). Likewise, we find that

Clark has raised a substantial question.

      Clark argues that the court did not consider the statutory factors in

sentencing him to life in prison. Clark also suggests that certain mitigating

factors, such as his lack of familial support, his upbringing in a rough

neighborhood, his lack of criminal sophistication, his lack of a history of

violence, and his amenability to rehabilitation, should have been given more

weight. Clark’s Brief at 22-24.

      We review a challenge to the discretionary aspects of sentence for an

abuse of discretion. Seagraves, 103 A.2d at 842. Further, when a PSI is

available to the trial court, we presume that the trial court “was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with any mitigating factors.” Id.

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      The General Assembly set forth the following factors to be considered

when a trial court must sentence a defendant convicted of homicide who was

a juvenile at the time the crime:

      (1) The impact of the offense on each victim, including oral and
      written victim impact statements made or submitted by family
      members of the victim detailing the physical, psychological and
      economic effects of the crime on the victim and the victim’s
      family. A victim impact statement may include comment on the
      sentence of the defendant.

      (2) The impact of the offense on the community.

      (3) The threat to the safety of the public or any individual posed
      by the defendant.

      (4) The nature and circumstances of the offense committed by
      the defendant.

      (5) The degree of the defendant’s culpability.

      (6) Guidelines for sentencing and resentencing adopted by the
      Pennsylvania Commission on Sentencing.

      (7) Age-related characteristics of the defendant, including:

         (i) Age.

         (ii) Mental capacity.

         (iii) Maturity.

         (iv) The degree of criminal sophistication exhibited by the
         defendant.

         (v) The nature and extent of any prior delinquent or
         criminal history, including the success or failure of any
         previous attempts by the court to rehabilitate the
         defendant.

         (vi) Probation or institutional reports.

         (vii) Other relevant factors.

18 Pa.C.S.A. § 1102.1.

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      The trial court stated that it considered the PSI, testimony, and the

pre-sentence memoranda submitted by the parties, along with all the

statutory factors. T.C.M. at 4; N.T., 6/23/2014, at 55-56. The court also

reviewed each of the section 1102.1 factors.      N.T., 6/23/2014, at 56-59.

The trial court particularly noted the impact on the victim’s family, several of

whom provided victim impact statements at sentencing, the fact that Clark

fired up to eleven shots into a group of people, that Clark intended to kill

Chisholm and was not acting impulsively or recklessly, that Clark was almost

eighteen at the time of the shooting, that Clark had a prior record related to

drugs, and that rehabilitation thus far had been unsuccessful. Based upon

these factors and the other considerations, the trial court sentenced Clark to

life in prison. The trial court considered all the factors that were required

and did not abuse its discretion in concluding that a life sentence was

appropriate. Therefore, this issue does not merit relief.

      Judgment of sentence affirmed.

      Judge Bowes joins the memorandum.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015


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