J-S02010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

RAPHAEL STEWART,

                             Appellant                      No. 3375 EDA 2014


          Appeal from the Judgment of Sentence November 18, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0210251-1999


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                                  FILED MARCH 15, 2016

       Appellant, Raphael Stewart, appeals from the judgment of sentence

entered on November 18, 2014,1 following his conviction of first-degree

murder,     attempted       murder,     criminal   conspiracy,   and   possessing   an

instrument of crime. We affirm.

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1
     Appellant’s notice of appeal states that he appeals from the “Order
entered in this matter on the 19th day of November, 2014.” Notice of
Appeal, 11/26/14, at 1. Here, Appellant was sentenced in open court
following the conclusion of his trial on November 18, 2014. “[T]the date of
imposition of the sentence is the date the sentencing court pronounces the
sentence.” Commonwealth v. Green, 862 A.2d 613, 621 (Pa. Super.
2004). “This Court has held that the date of imposition of sentence in open
court, and not the date on which the sentence is docketed, is the reference
point for computing the time for filing post-sentence motions.”
Commonwealth v. Nahavandian, 954 A.2d 625, 630 (Pa. Super. 2008).
Thus, the caption has been corrected to reflect that this appeal lies from the
judgment of sentence entered November 18, 2014.
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       The evidence of record reveals that on the evening of November 18,

1998, at approximately 7:00 pm, Marlon Wilson (“Wilson”), also known as

Omar Johnson and Buddha Bless, Darris Cuthbert (“Cuthbert”), also known

as “Dee,” and Danny Milton (“Milton”), also known as Danny Gissentanner,

were standing on the corner of Colorado and Susquehanna streets in

Philadelphia.    Wilson and Cuthbert were selling drugs.        While they were

doing so, Appellant, Dexter Lawrence (“Lawrence”) and another unidentified

individual approached the trio.         After words were exchanged regarding an

alleged robbery of a drug house on Taney Street, Appellant, Lawrence and

the unidentified individual began shooting.

       As a result of the shooting, Cuthbert died and Wilson suffered

significant injuries after being shot in his neck, legs, and stomach.      Milton

sustained no injuries.      The evidence from the two testifying eyewitnesses,

Wilson and Milton, established that Appellant shot Cuthbert and Lawrence

shot Wilson.2

       The trial court set forth the procedural history of this case as follows:

             On November 18, 2014, after a jury trial, [Appellant] was
       convicted of murder of the first degree, attempted murder,
       criminal conspiracy, and possessing an instrument of crime.
       Also on November 18, 2014, this court sentenced [Appellant] to
       a mandatory term of life imprisonment without the possibility of
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2
   The trial court set forth in great detail the facts of this case as revealed
through testimony provided at trial. These facts can be found at pages two
through twenty-four of the June 8, 2015 trial court opinion. We decline to
repeat those extensive facts herein.



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      parole for the offense of murder of the first degree and imposed
      concurrent terms of ten (10) to twenty (20) years on the charge
      of attempted murder, ten (10) to twenty (20) years on the
      conspiracy charge, and two and one–half (21/2) to five (5) years
      on the charge of possessing an instrument of crime.1
            1
               [Appellant] was originally arrested on January 7,
            1999, in connection with the case at bar. He was
            charged with murder, attempted murder and related
            offenses; however, the charges were withdrawn on
            May 21, 2000, when the Commonwealth’s two main
            witnesses, [Marlon Wilson] and Danny Milton, could
            not be located. The charges against [Appellant]
            were refiled on June 6, 2001, after the witnesses
            were located. [Appellant] became a fugitive from
            justice until September 1, 2013 when he was
            apprehended.

            On November 26, 2014, [Appellant] filed, pro se, a timely
      Notice of Appeal.       W. Fred Harrison, Jr., Esquire, was
      subsequently appointed to represent [Appellant]. On December
      1, 2014, counsel for [Appellant] filed post-sentence motions on
      [Appellant’s] behalf; they were denied by operation of law on
      March 31, 2015, pursuant to Pennsylvania Rule of Criminal
      Procedure No. 720.B(3).

Trial Court Opinion, 6/8/15, at 1-2 (internal citations omitted).   Appellant

timely appealed and the trial court and Appellant complied with the

requirements of Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      A.    Whether the verdicts against the Appellant were supported
      by sufficient evidence[.]

      B.    Whether the guilty verdicts against the Appellant were
      against the weight of the evidence and shocked the conscience.

Appellant’s Brief at 4.




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       In his first claim, Appellant asserts that the verdicts entered against

him were not supported by sufficient evidence.              Appellant’s Brief at 13.

Appellant maintains that the Commonwealth was unable to produce any

physical evidence connecting him to the crimes; instead, the only evidence

connecting Appellant to the crimes was from eyewitnesses. Id. Appellant

contends that the evidence presented by these eyewitnesses was insufficient

to connect Appellant to the crimes.              Id.   Appellant, however, presents

specific argument as to only the attempted murder conviction.                   Id.

Appellant asserts that because there was no evidence presented that he was

the individual who shot the surviving victim, Appellant could not be

convicted of attempted murder.3 Id. at 13-15.

       When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

              The standard we apply in 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
____________________________________________


3
  In his appellate brief, Appellant presents argument on only the attempted
murder conviction. Accordingly, we find any challenge to the sufficiency of
the evidence in support of the remaining convictions waived.



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     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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

     Criminal attempt is defined as follows:

     (a) Definition of attempt.-A person commits an attempt
     when, with intent to commit a specific crime, he does any act
     which constitutes a substantial step towards the commission of
     that crime.

18 Pa.C.S. § 901(a).    “For a defendant to be found guilty of attempted

murder,   the   Commonwealth     must   establish   specific   intent   to   kill.”

Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa. Super. 2004).

Therefore, “[i]f a person takes a substantial step toward the commission of a

killing, with the specific intent in mind to commit such an act, he may be

convicted of attempted murder.” In re R.D., 44 A.3d 657, 678 (Pa. Super.

2012). “The Commonwealth may establish the mens rea required for first-

degree murder, specific intent to kill, solely from circumstantial evidence.”

Id. Further, our Supreme Court has repeatedly determined that “[t]he use

of a deadly weapon on a vital part of the body is sufficient to establish the

specific intent to kill.” Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.

2007); see also Commonwealth v. Cousar, 928 A.2d 1025, 1034 (Pa.




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2007) (“a specific intent to kill may be inferred from the use of a deadly

weapon on a vital part of the victim’s body.”).

      The Crimes Code defines an accomplice, in pertinent part, as follows:

      A person is an accomplice of another person in the commission
      of an offense if:

      (1) with the intent of promoting or facilitating the commission of
      the offense, he:

            (i) solicits such other person to commit it; or

            (ii) aids or agrees or attempts to aid such other
            person in planning or committing it; or

18 Pa.C.S. § 306(c)(1). “Both requirements may be established wholly by

circumstantial evidence. Only ‘the least degree of concert or collusion in the

commission of the offense is sufficient to sustain a finding of responsibility

as an accomplice.’ No agreement is required, only aid.” Commonwealth

v. Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005) (citations omitted).

      To establish complicity, mere presence at the scene of a crime
      and knowledge of the commission of criminal acts is not
      sufficient. Nor is flight from the scene of a crime, without more,
      enough. However, those factors combined, along with other
      direct or circumstantial evidence may provide a sufficient basis
      for a conviction, provided the conviction is predicated upon more
      than mere suspicion or conjecture.

Commonwealth v. Knox, 50 A.3d 732, 739 (Pa. Super. 2012)

      Thus, even if Appellant was not the individual who shot victim Wilson,

the evidence of record is sufficient to establish that Appellant and Lawrence

acted in concert with the shared intent of killing Cuthbert and Wilson.

Appellant, Lawrence and the other individual together approached Cuthbert

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and Wilson on the night of the incident. N.T., 11/13/14, at 20-21, 118-119.

Appellant and Lawrence had confronted Cuthbert and Wilson approximately

two weeks prior to this interaction regarding the suspected theft at the

Taney Street drug house.     Id. at 14-15.    After addressing Cuthbert and

Wilson regarding the alleged robbery of the drug house, Appellant and

Lawrence opened fire on Cuthbert and Wilson.        Id. at 33-34, 119-120.

Cuthbert and Wilson were shot several times. Id. at 122-123. Wilson was

shot in his neck, legs, and stomach.       Id. at 23.    After the shooting,

Appellant, Lawrence and the other individual ran together up Colorado

Street. Id. at 25, 159.

      As such, the evidence supports the conclusion that Appellant and

Lawrence acted in concert for purposes of carrying out their collective intent

to kill Cuthbert and Wilson. Appellant and Lawrence specifically sought out

Cuthbert and Wilson in retribution for the alleged theft of Appellant’s and

Lawrence’s drug house. Appellant and his accomplice used a deadly weapon

on vital parts of Wilson’s body, as evidenced by the gunshot wounds to

Wilson’s neck and stomach.     Rega, 933 A.2d at 1009.      Thus, the record

supports the jury’s conclusion that Appellant possessed the intent to kill

necessary for a conviction of attempted murder. Moreover, the act of firing

several rounds at Cuthbert and Wilson constituted a substantial step toward

commission of the intended killing of Cuthbert and Wilson. Accordingly, we




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would agree with the trial court’s conclusion that there was sufficient

evidence to convict Appellant of attempted murder.

      In his second issue, Appellant argues that the verdicts were against

the weight of the evidence and shocked the conscience. Appellant’s Brief at

16.   Although Appellant makes passing reference to all of the verdicts

entered against him, he again presents argument regarding only the

attempted murder conviction.     Id.    The entirety of Appellant’s argument

consists of the following statements:

            In the instant case, 18 Pa.C.S.A. § 901 requires intent.
      The facts adduced demonstrate clearly that Appellant Stewart
      did not intend any harm to [Marlon Wilson]. Thus, convicting a
      person of a crime where all the elements of the crime have not
      been proved shocks the conscience.

Id.

      Before we may reach the merits of Appellant’s challenge to the weight

of the evidence, we must determine whether Appellant properly preserved

this issue on appeal. Commonwealth v. Mikell, 968 A.2d 779, 780 (Pa.

Super. 2009).   Pennsylvania Rule of Criminal Procedure 607, provides as

follows:

      (A) A claim that the verdict was against the weight of the
      evidence shall be raised with the trial judge in a motion for a
      new trial:

           (1) orally, on the record, at any time before
           sentencing;

           (2) by written motion at any time before sentencing;
           or


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              (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A).

       Here, Appellant raised the weight of the evidence claim in his post-

sentence motion.4 The counseled post-sentence motion was filed December

1, 2014. Appellant’s judgment of sentence was imposed in open court on

November 18, 2014.          Accordingly, in order to be timely filed, Appellant’s

post-sentence motion needed to be filed by November 28, 2014.                   See

Nahavandian, 954 A.2d at 630 (“This Court has held that the date of

imposition of sentence in open court, and not the date on which the

sentence is docketed, is the reference point for computing the time for filing

post-sentence motions.”).        Due to the Thanksgiving holiday, however, the

Philadelphia Court of Common Pleas was closed on Friday, November 28,

2014.5      The    next    business    day     was   Monday,   December   1,   2014.




____________________________________________


4
   Appellant labeled his motion a “post trial motion.” Post Trial Motions,
12/1/14. Because the motion was filed after imposition of Appellant’s
sentence, the motion is properly characterized a post-sentence motion.
5
  The Philadelphia court website reflects the following notification for
November 2014: “Notice: All courts will be closed on Thursday and Friday,
November 27-28, 2014 in observance of Thanksgiving Day, except Municipal
Court’s Arraignment Court and the filing of Emergency Protection from
Abuse Petitions at the Justice Juanita Kidd Stout Center for Criminal Justice,
1301 Filbert St.” http://courts.phila.gov/common-pleas/trial/criminal/.



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Accordingly, Appellant’s post-sentence motion was timely filed.6

       Additionally, we note that the fact that the motion was denied by

operation of law does not preclude our review.           In Commonwealth v.

Upshur, 764 A.2d 69, 73 (Pa. Super. 2000), this Court addressed a similar

procedural question and therein concluded that we were not precluded from

addressing the appellant’s weight claim where the post-sentence motion

raising the claim was denied by operation of law, and where the case

involved a jury trial and credibility determinations were made by the jury.

As this Court noted, “when a claim is denied by operation of law, the effect

of the denial operates in the same manner as if the court had denied the

motion itself.”    Id. at 73.     Accordingly, Appellant’s weight of the evidence

claim is properly preserved for review.

       With respect to a weight claim, we apply the following standards:

              A motion for new trial on the grounds that the verdict is
       contrary to the weight of the evidence, concedes that there is
       sufficient evidence to sustain the verdict. Thus, the trial court is
       under no obligation to view the evidence in the light most
       favorable to the verdict winner. An allegation 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. A trial judge
       must do more than reassess the credibility of the witnesses and
       allege that he would not have assented to the verdict if he were
       a juror. Trial judges, in reviewing a claim that the verdict is
____________________________________________


6
   For computations of time, whenever the last day of any such period shall
fall on Saturday or Sunday, or a legal holiday, such day shall be omitted
from the computation. 1 Pa.C.S. § 1908; Green, 862 A.2d at 618.



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      against the weight of the evidence do not sit as the thirteenth
      juror. 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. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (citations,

footnote, and internal quotation marks omitted). “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.” Commonwealth v. Serrano, 61 A.3d 279,

289 (Pa. Super. 2013) (citation omitted).

      We first note that although Appellant labels his argument a challenge

to the weight of the evidence, to the extent that Appellant claims that all

elements of the crime of attempted murder have not been met, such claim is

a challenge to the sufficiency of the evidence.       For reasons outlined

previously, we agree that there was sufficient evidence of record to support

Appellant’s conviction of attempted murder under 18 Pa.C.S. § 901.

      Moreover, in addressing Appellant’s weight of the evidence claim, the

trial court provided the following analysis:

             This court finds that the Commonwealth presented
      sufficient evidence to uphold [Appellant’s] convictions, and that
      the convictions in the present case were not against the greater
      weight of the evidence.

            Here, the jury was aware that both witnesses, [Wilson]
      and [Milton] had been involved in brushes with the law.
      Specifically, the jury was aware that [Wilson] was a fugitive at
      the time of the incident involved in this case and that he used
      many different names because of multiple warrants for his

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     arrest. The jury was also aware that Johnson was a drug dealer
     and that in the past he had sold crack cocaine and marijuana. In
     addition, the jury was informed that at the time of [Appellant’s]
     trial, Johnson was in custody in New York and that he testified as
     a prisoner brought to court for the purpose of offering testimony.
     The jury was also informed that Johnson did not receive any
     promises from the district attorney or other law enforcement
     personnel in exchange for his testimony in this case.

            Similarly, the jury was aware that witness Danny Milton
     was on parole for a robbery conviction when the incident
     involved in this case took place. This court instructed the jury
     that the crime of robbery is a crimen falsi, meaning a crime
     involving deceit or dishonesty.       The jury also knew that
     Danny Milton used aliases due to his legal problems, and that
     he, too, sold crack cocaine and marijuana. Milton told the jury
     that he was arrested in Tennessee just a few days before the
     trial on a warrant issued by the State of Virginia on a drug case.
     At the time he testified in court, that case was still an open,
     unresolved matter. Milton also explained to the jury that he had
     received no promises of assistance from anyone in exchange for
     his testimony.

           This court also instructed the jury that it could consider the
     evidence of legal problems with regard to these witnesses in
     deciding whether to believe all, part, or none of the testimony
     each of them gave at the trial.

           Upon review of the challenge to the weight of the
     evidence, this court concludes that the verdict was consistent
     with the evidence. The jury was free to believe all, part or none
     of the evidence, and it clearly found the evidence to be credible
     and reliable.

           We conclude, therefore, that the jury verdict did not shock
     any sense of justice. No relief is due.

Trial Court Opinion, 6/8/15, at 34-35.

     As set forth above, the Commonwealth introduced evidence of

Appellant’s culpability with regard to the attempted murder conviction.

Specifically, two eyewitnesses testified to Appellant’s involvement in the

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attempted murder. Thus, we cannot conclude that the trial court abused its

discretion by denying Appellant’s weight challenge and the verdict does not

shock our sense of justice.   Widmer, 744 A.2d at 751-752; Serrano, 61

A.3d at 289.

     For the reasons set forth above, Appellant is entitled to no relief.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




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