J-S05004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TYRONE DYVON SAVAGE                     :
                                         :
                   Appellant             :   No. 755 WDA 2018

        Appeal from the Judgment of Sentence November 28, 2017
             In the Court of Common Pleas of Beaver County
          Criminal Division at No(s): CP-04-CR-0002232-2016


BEFORE:   PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED JULY 15, 2019

     Tyrone Dyvon Savage (“Appellant”) appeals from the judgment of

sentence entered on November 28, 2017, which followed a jury conviction on

October 25, 2017, of 1 count of criminal homicide – first-degree murder, see

18 Pa.C.S.A. §§ 2501(a), 2502(a), and 1 count of receiving stolen property,

see 18 Pa.C.S.A. § 3925(a). We affirm.

     The trial court summarized the facts of this case as follows:

     On October 7, 2016 Travonte Sligh hosted “a little get together”
     at his home in Morado Dwelling, Beaver Falls. Present were the
     Appellant, Mr. Simmons, and numerous other persons. Later in
     the evening Mr. Sligh was inside his apartment when he heard an
     argument followed by a gunshot; he went outside and saw that
     Simmons had been shot.

     Nicole Koch, Appellant’s girlfriend, drove Appellant and their son
     to Mr. Sligh’s house for this “cookout” at approximately 4:00 or
     5:00 p.m. Ms. Koch waited about an hour, until 8:30 or 9:00 p.m.
     for Appellant to return; when he did not she left without him.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     Juanita Ochieng drove Marquis Kuzbicki and Simmons to Morado
     Dwellings on the day at issue; she was driving there to visit a
     friend. Later that evening, as Ms. Ochieng was leaving she drove
     to where Mr. Kuzbicki, Simmons, and unknown other persons
     were standing. She observed Mr. [Kuzbicki] and Simmons arguing
     and pushing one another. She heard Simmons say “I don’t care.
     I’ll die for mine;” she then heard a gunshot and drove away. Ms.
     Ochieng did not view the gunshot or the shooter and did not know
     who was shot until a later time.

     Halea West was 13 years of age at the time she testified at trial.
     Ms. West saw Appellant, who she knew as “Trigga”, at her
     neighbor’s gathering on October 7, 2016. Later that evening Ms.
     West was in her bedroom when she heard arguing and then two
     gunshots; she looked outside and saw Appellant shoot someone.
     She observed Appellant run across her yard and towards the
     “center” of Morado Dwellings. Appellant was wearing a black shirt
     and gray sweatpants.       Upon cross-examination Ms. West
     acknowledged that she had twice testified regarding this case and
     on those occasions denied having seen that actual shooting.

     At the time of the incident, William Phillips was working at PTC
     Alliance, a steel tubing plant, when he heard a gunshot. About
     five minutes later he observed a black male walking quickly
     towards him; the man told Mr. Phillips that he had been shot but
     would not stop for help. Mr. Phillips then called 911. Mr. Phillips
     was not able to identify the individual he saw that night.

     Captain Curt Couper responded to the shooting in Morado
     Dwellings. While he was at the scene he received information
     from the County Dispatch regarding the 911 call made from PTC
     Alliance regarding the individual claiming to have been shot. He
     drove around the surrounding areas and observed Appellant
     playing basketball with two other persons. When Captain Couper
     began driving towards the three, Appellant stopped playing
     basketball and walked toward Captain Couper’s vehicle. At this
     time Appellant was wearing a black shirt and gray shorts. Captain
     Couper observed that Appellant had blood on his hand, scratches
     and cuts on his legs, and grass and twigs in his hair. He arrested
     Appellant and transported him to the Beaver Falls Police Station.

     William Pignanelli and Nathan Hess were playing basketball
     outside Mr. Hess’s home near the PTC Alliance plant when


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     Appellant approached and asked if he could play. Appellant played
     with them for ten to twenty minutes and left.

     Sergeant Cipriani was one of many officers responding to the
     scene of the homicide. One live round of ammunition and one
     spent shell casing were found nearby.

     Detective Burau searched for evidence in the area of PTC Alliance;
     he located a pair of “blackish gray” sweatpants hanging on a
     barbed wire fence.

     Detective Staub performed a gunshot residue test upon Appellant,
     taking samples from the back and palms of both Appellant’s hand.
     Several months later Detective Staub performed the same testing
     upon articles of clothing found in this investigation.

     Brad Scassa is the environmental health and safety manager at
     PTC Alliance. When he arrived at work on Monday October 10,
     2016, he learned of what had happened three days prior. He was
     instructed to walk the perimeter and check the fencing to see if
     there were any points of easy access; while doing so he found
     three live bullets and a handgun magazine. Mr. Scassa led police
     officers to the items and then assisted in reviewing the plant’s
     security footage. This footage showed an individual wearing a
     black shirt crawling under a fence and possibly disposing of an
     item in the cooling tower.

     Captain Chichy, Detective Siget, and other officers retrieved the
     bullets and magazine from PTC Alliance, watched the security
     camera footage and then searched the area of the cooling tower,
     where they found a black shirt. The security footage also revealed
     an individual wearing a black shirt appear to take off or fiddle with
     his pants, and later appear to be carrying a pair of pants in his
     hand.

     Christopher Ceriana, of the Beaver Falls Fire Department, used
     scuba equipment to search inside the cooling tower, finding a
     Springfield .40 caliber handgun.

     Xzavier Coleman testified that his Springield (sic) XD .40 caliber
     handgun, serial number XD312698, was stolen from his vehicle in
     August of 2016. This was the same handgun found in the cooling
     tower.


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      Through various expert witnesses the Commonwealth was able to
      establish the following:

              The sweatpants found at PTC Alliance contained Appellant’s
               DNA;

              The shirt found at PTC Alliance contained Appellant’s DNA;


              The shell casing found at the scene had been discharged
               from the firearm found in the cooling tower at PTC Alliance;


              The back of Appellant’s hands contained gunshot residue;
               the palms of his hands were “indicative” of gunshot residue;


              The shirt Appellant was wearing when arrested and the shirt
               and sweatpants found at PTC Alliance contained gunshot
               residue or were “indicative” of gunshot residue.

      To summarize, Appellant shot Simmons in the chest, fled from the
      scene to PTC Alliance, where security footage revealed a man in a
      black shirt matching Appellant’s description crawling under the
      fence, Appellant then dropped the magazine from a Springfield
      .40 caliber handgun and 3 live rounds near the fence, discarded
      certain items of clothing and the firearm in the cooling tower, and
      was arrested nearby shortly thereafter. DNA evidence shows that
      the abandoned clothing was Appellant’s and the gunshot residue
      test indicates that he fired a gun.

Trial Court Opinion, 7/27/18, at 3-8 (citations to the record omitted).

      On       November   28,   2017,   Appellant   was   sentenced   to   lifelong

incarceration for the first-degree murder offense and a concurrent sentence

of two to ten years of incarceration for receiving stolen property. Appellant

filed timely post-sentence motions and later filed supplemental post-sentence

motions. The trial court denied these motions, and Appellant filed this timely

appeal.


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      Appellant presents two questions for our review:

      1. Was the verdict against the weight of the evidence, because
      witness Haela West identified Appellant as the shooter when she
      testified during trial, but she did not identify Appellant at all prior
      proceedings?      West’s trial testimony was not credible, and
      Appellant’s conviction for homicide in reliance on that incredible
      testimony is a miscarriage of justice.

      2. Was the conviction for first-degree murder supported by
      sufficient evidence, where no credible witness identified Appellant
      as the individual who shot the victim, and the Commonwealth
      failed to establish that element of the crime?

See Appellant’s Brief, at 6.

      As to Appellant’s first issue, a weight of the evidence challenge

“concedes that     there   is sufficient   evidence   to   sustain   the   verdict.”

Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super. 2016) (citation

omitted). Our standard of review for a claim that the verdict was against the

weight of the evidence is as follows:

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, the role of
      a trial judge is to determine that not withstanding 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.
      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.

      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:




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           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.     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.
           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.

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

quotation marks omitted) (emphasis in original). “Discretion is abused where

the course pursued [by the trial court] 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.” Commonwealth v. Widmer, 744 A.2d

745, 753 (Pa. 2000).

     Appellant contends that the witness who identified him at trial was

unreliable. See Appellant’s Brief, at 17. Appellant’s argument is as follows:

     [Appellant] asked the trial court to consider the fact that the only
     witness to identify [Appellant] as the shooter was the witness
     [named] West. No other witness identified [Appellant] as the
     actual shooter. The impact of West’s testimony, therefore, was
     critical to the prosecution’s case. [Appellant] argues that West’s
     testimony was so unreliable that a verdict relying on her testimony
     is a total miscarriage of justice.




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Id., at 18. “Any uncertainty in an eyewitness’s identification of a defendant

is   a   question   of   the   weight   of   the   evidence,   not   its   sufficiency.”

Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006).

         As stated in the trial court’s summary of the case, at trial, “Ms. West

acknowledged that she had twice testified regarding this case and on those

occasions denied having seen [the] actual shooting.”            Trial Court Opinion,

7/27/18, at 4. Appellant indicates that “the first time West claimed to have

[witnessed] the shooting was approximately one week before the trial.”

Appellant’s Brief, at 19. Appellant identifies many inconsistencies between

West’s prior testimony and her testimony at trial: West’s prior testimony as

to who was present at or around the scene of the crime and her familiarity

with those individuals; her recollection of the specific clothing worn by and

nickname of the shooter; the pathway taken by the shooter after the incident;

and her positioning in and location of her bedroom window concurrent with

the shooting were all dissimilar to what West testified to at trial. See id., at

19-20. Moreover, West oscillated on whether and when she had spoken to

police on the night of the shooting. See id.

         Appellant argues that since West’s testimony changed every time she

testified and “no other witness identified [Appellant] as the perpetrator,” “[i]t

shocks all sense of justice” for the Appellant to have been convicted under

these circumstances.           Appellant’s Brief, at 22. Appellant attempts to




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distinguish Commonwealth v. Rodriguez, 174 A.3d 1130, 1140 (Pa. Super.

2017), from the facts of this case.

      In Rodriguez, we unequivocally disapproved of the premise that “a

jury’s verdict of guilty, which is based upon the testimony of a single

eyewitness, is inherently suspicious or unreliable.” Rodriguez, 174 A.3d at

1140. “Rather, as with all testimony and evidence offered at trial, in passing

upon the credibility of a single eyewitness, the jury is free to believe all, part,

or none of the witness’s testimony.” Id. The key witness in Rodriguez was

the only individual that “saw the shooting and could provide a description of

the shooter.” Id., at 1134. However, “the jury was presented with direct and

circumstantial evidence of [a]ppellant’s guilt beyond that presented by [the

key witness], i.e., [additional testimony] and DNA evidence left at the scene.”

Id., at 1140.

      In this matter, West was rigorously cross-examined in front of the jury

by Appellant’s counsel. See N.T., 10/18/17, 59-87, 102-05. On at least seven

different occasions, Appellant’s counsel attempted to, or in fact did, illuminate

discrepancies between West’s prior testimony and her testimony at trial. See,

e.g., id., at 66-69 (identifying inconsistencies in her description of the clothing

the shooter was wearing); id., at 70-71 (recognizing conflict in whether she

saw the path of the shooter after the incident); id., at 71-75 (demonstrating

that her earlier testimony conveyed that she had not seen the shooting).




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       On redirect examination, West acknowledged that she was scared when

she testified previously and gave statements to the police. See id., at 88, 96.

Moreover, as time progressed, she stated that she recognized things

differently at the time of trial and now felt more comfortable reporting on what

she had witnessed. See id., at 89, 96. When it came to actually identifying

Appellant, when asked “did you see Trigga, the Defendant, Tyrone Savage,

shoot Justice Simmons on October 7th, 2016?” West responded “Yes.” Id.,

at 102.

       West’s testimony at trial is not the only evidence of record tending to

incriminate Appellant. In addition to the physical evidence recovered1, at least

five witnesses corroborated various aspects of West’s account. See, e.g., id.,

at 165-69 (one witness, working close to the shooting at PTC Alliance

describing hearing a gunshot and then observing an African-American male

walk close by); id., 10/19/17, at 38-41 (another witness, near PTC Alliance,

indicating that Appellant approached him to play basketball on the day in

question); id., 10/17/17, at 129, 136-37 (a third witness identifying that he

had heard an argument and stated that Appellant carries a gun). Even though



____________________________________________


1 Appellant’s DNA was found on sweatpants and a shirt recovered on the
grounds of PTC Alliance, a steel tubing plant. See N.T., 10/23/17, at 19, 24.
Furthermore, Appellant’s hands, the shirt he was wearing when arrested, and
the aforementioned shirt and sweatpants were all tested and found to be
“indicative” of gunshot residue. See id., at 102-110. The firearm found at
PTC Alliance fired the shell casing found at the site of the shooting. See id.,
at 70, 85-86.

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these    testimonial   corroborations    were    circumstantial   in   nature,   “the

Commonwealth        can   prove   its     case    by   circumstantial    evidence.”

Commonwealth v. Haynes, 116 A.3d 640, 657 (Pa. Super. 2015).

        Upon consideration of the evidence presented, we cannot conclude the

trial court abused its discretion in finding that the jury’s verdict did not shock

its conscience. As such, the trial court did not abuse its discretion in denying

Appellant’s request for a new trial. We once again affirm the principle that as

credibility determinations are within the exclusive province of the jury, “[t]he

jury is free to believe all, part or none of the evidence introduced at trial.”

Commonwealth v. Hoffman, 198 A.3d 1112, 1118 (Pa. Super. 2018)

(citation omitted).     Here, while it was permitted to reach the opposite

conclusion especially in light of the extensive cross-examination that was

performed, the jury implicitly found West’s testimony at trial to be credible.

Thus, a guilty jury verdict was not against the weight of the evidence.

        Appellant next contends that his conviction for first-degree murder was

not supported by sufficient evidence.       Appellant bolsters this assertion by,

again, attacking the “unreliable eyewitness testimony of West.” Appellant’s

Brief, at 24. Essentially, Appellant wholly eliminates West’s testimony and

attempts to reconstruct the case against him as if West’s testimony did not

exist. See id., at 26. Absent this identification testimony, Appellant states,

even in light of all the aforesaid physical and testimonial evidence, there is

insufficient evidence to convict Appellant. See id.


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      Appellant’s sufficiency argument, requesting certain components of the

trial testimony to be stricken, would require us to review a diminished record.

That is something we cannot do. See Commonwealth v. Gray, 867 A.2d

560, 567 (Pa. Super. 2005) (identifying that we do not review a diminished

record when evaluating the sufficiency of the evidence and additionally, “the

law is clear that we are required to consider all evidence that was actually

received, without consideration as to the admissibility of that evidence or

whether the trial court’s evidentiary rulings are correct”). Therefore, in this

domain, we are prohibited from disregarding the existence of West’s

testimony.     Furthermore, as quoted, supra, “any uncertainty in an

eyewitness’s identification of a defendant is a question of the weight of the

evidence, not its sufficiency.” Commonwealth v. Cain, 906 A.2d 1242, 1245

(Pa. Super. 2006). Appellant, in his attempt to either eliminate or cast doubt

on eyewitness testimony in this case, has failed to develop a proper sufficiency

of the evidence argument.         Thus, he has waived this issue.          See

Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012) (failure to

provide the Court with pertinent discussion of the issue and citations to

relevant authority results in the waiver of that issue).

      After giving thoughtful review, we conclude that neither of Appellant’s

issues has merit. Accordingly, the judgment of sentence is affirmed.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2019




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