J-S02030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TERRANCE M. JONES                          :
                                               :
                      Appellant                :   No. 1130 EDA 2016

            Appeal from the Judgment of Sentence January 28, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008269-2013


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 29, 2018

        Appellant Terrance M. Jones appeals from the judgment of sentence

entered following a four-day jury trial and his convictions for possession of a

firearm, carrying a firearm without a license, carrying a firearm in

Philadelphia, possession of an instrument of crime, simple assault, and

recklessly endangering another person.1              He challenges whether his

convictions were against the weight of the evidence. We affirm.

        We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 3/22/17, at 1-5. Following his convictions, the

court sentenced Appellant to an aggregate sentence of six-and-a-half to


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. §§ 6105, 6106, 6108, 907, 2701, 2705, respectively.
J-S02030-18


seventeen years’ imprisonment. Appellant timely filed a post-sentence motion

challenging the weight of the evidence, which the court denied. Appellant

timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issue:

      Was not the verdict of guilt against the weight of the evidence to
      the degree that such serious doubt is cast upon the validity of
      [Appellant’s] conviction as to shock the conscience where, taking
      into consideration all the evidence presented at trial, there was
      exculpatory and contradictory evidence as to [Appellant’s] actions
      and location at the time the complainant was shot, and also
      inculpatory evidence as to another party who had the opportunity
      and motivation to commit the shooting, and the evidence thereby
      failed to prove by sufficient weight that it was [Appellant] who
      shot the complainant or otherwise committed the crimes of which
      he was convicted?

Appellant’s Brief at 3.

      In support of his issue, Appellant contends that the complainant’s

identification of him as the culprit was suspect.     Appellant’s Brief at 16.

Appellant labels the complainant’s identification testimony as equivocal and

incredible because the complainant was intoxicated. Id. at 16-17. He also

accuses the complainant as predisposed to identifying him because of a prior

incident in which Appellant purportedly threatened the complainant with a

weapon. Id. at 17. Appellant also points out that no other witness testified

he was the shooter. Id. at 18. Finally, Appellant references alibi testimony

by defense witnesses that he was not present at the time of the shooting. Id.

      Our standard of review is well-settled:

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an


                                     -2-
J-S02030-18


        appellate court reviews the exercise of the trial court’s discretion;
        it does not answer for itself whether the verdict was against the
        weight of the evidence. It is well settled that the jury is free to
        believe all, part, or none of the evidence and to determine the
        credibility of the witnesses, and a new trial based on a weight of
        the evidence claim is only warranted where the jury’s verdict is so
        contrary to the evidence that it shocks one’s sense of justice. In
        determining whether this standard has been met, appellate review
        is limited to whether the trial judge’s discretion was properly
        exercised, and relief will only be granted where the facts and
        inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (quotation

marks and citations omitted).

        After careful review of the record, the parties’ briefs, and the decision

by the Honorable Diana Anhalt, we discern no abuse of discretion by the trial

court. See Trial Ct. Op. at 5-7 (summarizing conflicting testimony). As the

trial   court   accurately   notes,   credibility   determinations   and   resolving

contradicting testimony were for the jury. See id.; accord Houser, 18 A.3d

at 1135-36.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/18




                                         -3-
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                                                                                                                                                                                          Circulated 03/14/2018 01:10 PM




                                                                                                                                                                                                        :F,ILIED
                                                                                             IN THE COURT OF COMMON PLEAS:                                                                               M,M     e � _.
                                                                                            FOR TIJECOUNTY OF PHILADELPHIA                                                                                       • 11 �vftlt
                                                                                                 CRIMINAL DIVISION TRIAL                                                           · _•· ....· Unit
                                                                                                                                                                           Crimtnai==       .· ·
                                                                                                                                                                                                 First Jutfiaa . · ,
                                                                                                                                                                                                ·,
                               COMMONWEALTH                                                                                                     NO.: CP-51-CR-0008269-2013                     0 PA
                               OF PENNSYLVANIA

                                                v.                                                                                              Superior Court No.:
                                                                                                                                                1130 EDA 2016
                               TERRANCE JONES

                                                                                                                                                              CP-51-CR-0008269-2013 Comm. v. Jones, Terrance M
                                                                                                                                                                                  Opinion
                                                                                                                                    OPINION


                               ANHALT,J.
                                                                                                                                                                      1111111111 111111111111111
                                                                                                                                                                             7922653281

                                                Appellant in the above-captioned matter appeals this Court's judgment regarding his

                               conviction for Possession of a Firearm, 18 Pa.C.S.A. § 6105(a)(l) and related offenses. The

                               Court submits the following Opinion in accordance with the requirements of Pa.R.A.P. 1925(a).

                               For the reasons set forth herein, the Court holds that the judgment of conviction should be

                               affirmed.

                               PROCEDURAL HISTORY

                                                On June 9, 2013, police arrested and charged Appellant, Terrance Jones with numerous

                               offenses stemming from a shooting. On November 25, 2015, following a jury trial, Appellant

                               was convicted of Possession of a Firearm (F2), Carrying a Firearm Without a License (F3 ),

                               Carrying a Firearm in Philadelphia (Ml), Possessing an Instrument of Crime ("PIC") (Ml),

                               Simple Assault (M2) and Recklessly Endangering Another Person ("REAP") (M2). On January

                              28, 2016, this Court sentenced Appellant to an aggregate term of 6.5 - 17 years of incarceration.

                                               Appellant filed a timely notice of appeal on April 11, 2016. On April 15, 2016, this Court

                              ordered Appellant pursuant to Pa. R.A.P. 1925(b) to file with the Court a Concise Statement of

                              Matters Complained of on Appeal. On May 6, 2016, Appellant filed a Motion for Extension of
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                                           time. On January 12, 2017, this Court again ordered Appellant pursuant to Pa. R.A.P. 1925(b) to

                                           file with the Court a Concise Statement of Matters Complained of on Appeal. On February 2,

                                           2017, Appellant filed a Supplemental Statement of Errors Complained of on Appeal. Appellant

                                           raises the following issue on appeal:

                                                                         1. The verdict of guilt was against the weight of the evidence for all of the crimes of

                                                                                  which the defendant was convicted to the degree that such serious doubt is cast upon

                                                                                  the validity of the defendant's conviction as to shock the conscience; to wit, taking

                                                                                  into consideration all the evidence presented at trial, including exculpatory and also

                                                                                  contradictory evidence as to, inter alia, the defendant's actions and locations at the

                                                                                  time of the commission of the crimes, the actions and locations of another party that

                                                                                  had the opportunity and motivation to commit the crimes, and the source of the shot

                                                                                  that wounded the complainant, the evidence failed to prove by sufficient weight that it

                                                                                  was the defendant who shot the complainant or otherwise committed the crimes of

                                                                                  which he was convicted. 1

                                           FACTUAL HISTORY

                                                                     On June 8, 2013, Wayne Oliver attended a party across the street from his home on the

                                           4800 block of North 7th Street in Philadelphia. Notes of Testimony (N.T.) 11/23/15 at 9.

                                           Appellant's brother, Marlon Jones "Marlo" and a bunch of other people that live on the block

                                           attended the party. Id. at 11. During the party, Mr. Oliver and Marlo got into an argument and

                                           Marlo threw a punch at Mr. Oliver. Id. at 14. As Mr. Oliver walked across the street to his house,




                                           1 Counsel notes that this
                                                                     supplemental statement is filed in response to the court's Rule 1925(b) order of January 12,
                                           2017, apparently filed in response to counsel's request for an extension of time to file a supplemental statement of
                                           errors upon receipt of all necessary notes of testimony. Counsel notes that at the time of filing of this supplemental
                                           statement, counsel has received all outstanding notes of testimony, has reviewed those notes and is raising no
                                           additional claims of error beyond the claim raised in the original statement of errors filed on May 6, 2016.

                                                                                                                                                                                       2
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                           Marlo followed him and threatened to shoot and beat him. Id. at 15. Mr. Oliver met Marlo in the

                           middle of the street, punched him twice, got on top of him and "beat the hell out of him." Id. at

                           17. Mr. Oliver's son-in-law, Anthony, removed Mr. Oliver off of Marlo and walked him back up

                           the block. Id. Anthony then directed Mr. Oliver back to his house. Id. at 19.

                                      After about 10-15 minutes, Mr. Oliver came back outside on his porch and encountered

                           Marlo's son. Id. at 20. Marlo's son asked Mr. Oliver who hit his dad and Mr. Oliver responded

                           that he did. Id. at 21. Marlo's son then threw a punch at Mr. Oliver, jumped off his porch and ran

                           back into the street. Id. Mr. Oliver got off his steps and began to fight Marlo's son. Id. at 22. Mr.

                           Oliver then noticed Marlo's brother, Appellant, leaning on a car on the other side of the street.

                           Id. at 22-23. As Mr. Oliver and Marlo's son were fighting, Marlo's son ran toward Appellant. Id.

                           at 56. Mr. Oliver then ran toward Marlo and Appellant. Id. at 56-57. At this point, Mr. Oliver and

                           Appellant are about three feet from each other. Id. at 57. Mr. Oliver tried to swing at Appellant

                           as Appellant's "hand came up." Id. at 24. Appellant then shot Mr. Oliver once. Id. at 25. The

                           bullet went through the top of his groin, was lodged in his leg and remains there to this day. Id. at

                           27. Anthony then picked Mr. Oliver up and carried him to his porch. Id. at 30. Mr. Oliver the

                           stayed on the porch until the ambulance and the police arrived. Id. Mr. Oliver was then rushed to

                           Einstein Medical Center. Id. at 31. Mr. Oliver told Detectives that Appellant shot him when

                           approached at the hospital. Id. at 33-34.

                                      Lawanda Oliver, Mr. Oliver's daughter, stated that her father limped into the house and

                           yelled "that fat fucking T shot me."2 N.T. 11/20/15 at 54. Tiara Oliver, also Mr. Oliver's

                           daughter, witnessed her father and Marlo arguing face to face at 4821 N.                                                     7th   Street, the address of

                           the party. Id. at 84. Marlo told her that her dad better leave tonight because he was going to kill



                           2   "T" refers to Appellant, Terrance Jones.

                                                                                                               3
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                                           him. Id. at 85. Tiara then witnessed her father and Marlo fight in the street. Id. at 87. At the end

                                           of the fight, Marlo was knocked to the ground and began to bleed from his mouth and head. Id. at

                                           88. Tiara, who has medical assistant experience, attempted to aid Marlo. Id. at 88. Tiara then

                                           went back to the house and stood on her porch when she saw Appellant pull up in a red Corvette

                                           and Marlo's son pull up in a black van. Id. at 93. She then went into the house and believed that

                                           everything was over. Id. at 96. As she went back to her front door she heard one gun shot. Id. at

                                           97. After Mr. Oliver was helped inside the house, Tiara looked outside and saw everybody trying

                                          to get out of the way. Id. at 98-99. Tiara witnessed Appellant get back into his car and Marlo's

                                           son get into his van and both pull away. Id. at 99-100. She then went back inside her house

                                           where her father screamed "T f-ing shot me." Id. at 102.

                                                                   Detective Jeffrey Geliebter met with Mr. Oliver at 3:30 a.m. on June 9, 2013, at Einstein

                                           Hospital. N.T. 11/23/15 at 92. He showed Mr. Oliver a photo array to which he identified and

                                          circled the second picture from the left on the bottom row, a picture of Appellant. Id. at 91. Mr.

                                           Oliver indicated that Appellant was the man who shot him and that he was "a hundred percent

                                           sure he was looking at him when he was shot." Id. at 93. Detective Robert Hassel met with Mr.

                                          Oliver at Einstein Hospital and conducted an interview around 11 :45 p.m. Id. at 108. Mr. Oliver

                                          told Detective Hassel that a man named "T" shot him, the brother of the man he was fighting. Id.

                                          at 110.

                                                                   However, there are two versions of the events that unfolded the night of June 8, 2013.

                                          Marlo testified to his account of the evening. Belinda Moore and Appellant were carrying him

                                          into his house when he heard a gunshot. Id. at 156-158. However, Marlo's memory is hazy. He

                                          stated that he did not remember who was at the party or who was next door when he got to the

                                          party. Id. at 169. Marlo claimed that his memory of the events was better today than hours after it



                                                                                                                                                                                                 4
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                                        happened. Id. at 175. Marlo reasoned that he was close to "blackout drunk" that evening. Id. at

                                         173. Marlo, by his own admission, mentioned his memory was less than perfect. Id. at 182.

                                                                         Q: So I think we can all agree that your recollection of that night is fogged?

                                                                         A: Yeah, I'm not saying it's perfect, but I'm giving you the best answers I could

                                                                         give you.

                                        Id. at 182-183. Belinda Moore, Marlo's wife, testified to a similar set of events. She also

                                        attended the party at 4821 N. 7th Street on June 8, 2013. Id. at 196. She stated that Mr. Oliver and

                                        her husband got into a physical altercation after hanging out and drinking all day. Id. at 198. As a

                                        result of the two fighting, Ms. Moore called the police, Appellant, and her nephew Derrick

                                        because none of the neighbors were helping break up the fight. Id. at 199. Appellant picked up

                                        Marlo off the ground and proceeded to carry him into the house. Id. at 201. As Ms. Moore was

                                        going in the house she heard what sounded like a gunshot. Id. So she, Marlo and Appellant

                                        rushed into the house. Id. at 202. She stated that as the gunshot went off, she was holding

                                        Marlo's one arm and Appellant was holding the other. Id. Derrick also testified that he helped

                                        take Marlo into the house. Id. at 229.

                                        DISCUSSION

                                                                     Appellant contends that the guilty verdict was against the weight of evidence.

                                        Specifically, Appellant asserts that the evidence failed to prove by sufficient weight that it was

                                        Appellant who shot the complainant or otherwise committed the crimes of which he was

                                        convicted.

                                                                     "The 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." Commonwealth

                                        v. Champney, 832 A.2d 403, 408 (Pa. 2003). The Supreme Court of Pennsylvania in Champney



                                                                                                                                                                                                                    5
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                 explained that an appellate court cannot substitute its judgment for that of the finder of fact. Id.

                 Therefore, the court may only reverse the lower court if the verdict is so contrary to the evidence

                 as to "shock one's sense ofjustice." Id. citing Commonwealth v. Small, 741 A.2d 666, 672-73

                 (Pa. 1999) (citations omitted). The Supreme Court has set forth the following standard of review

                 for Appellant's claim that the verdict is against the weight of evidence and that he should be

                 entitled to a new trial:

                                         The essence of appellate review for a weight claim appears to lie in ensuring that
                                         the trial court's decision has record support. Where the record adequately supports
                                         the trial court, the trial court has acted within the limits of its discretion.

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

                 See also Kaplan v. 0 'Kane, 835 A.2d 735, 737 (Pa. Super. 2003). (holding "[t]he power to grant

                 a new trial lies inherently with the trial court, and [the] appellate court will not reverse its

                 decision absent a clear abuse of discretion or an error of law which controls the outcome of the

                 case.").

                                         The defendant in Champney claimed that the guilty verdict was against the weight of the

                 evidence since the jury supposedly ignored important evidence in reference to the thoroughness

                 of police investigation. Champney, 832 A.2d at 408. The Supreme Court of Pennsylvania in

                 Champney explained that it was exclusively within the jury's province to weigh this evidence,

                 and thus, the defendant's claim failed. Id. at 409.




                                                                                                                                                         6
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                                             Here, Appellant points to Marlo's and Ms. Moore's testimony as evidence that exculpates

                          him from his conviction in connection with the shooting. Specifically, Appellant directs our

                          attention to testimony that shows him carrying Marlo into his house as the shot was fired which

                          proves that he was not the gunman. N.T. 11/23/15 at 156-158. However, there are many issues

                          with Marlo's testimony. The jury was proper when it discounted the testimony of Marlo, a man

                          who, by his own admission, did not have great memory. Id. at 182. Marlo, himself, used the term

                          "blackout drunk." Id. at 173. The other time the jury heard that Appellant was carrying Marlo

                          when the gunshot went off was from Ms. Moore. Id. at 201. Ms. Moore is Marlo's wife and

                          therefore, Appellant's sister-in-law. Id. at 196. That relationship naturally raises questions as to

                          her intentions to provide credible testimony. Since the jury was free to believe all, part or none of

                          the evidence against Appellant outlined above, and similar to Champney, the jury was proper in

                          believing Mr. Oliver's credible version of events and ignoring or discrediting Marlo's and Ms.

                          Moore's version. That the jury convicted Appellant with evidence provided by Mr. Oliver,

                          Lawanda and Tiara is not so contrary to the evidence that it would shock one's sense of justice.

                          Therefore, the guilty verdict was not against the weight of evidence.




                                                                                                                                                              7
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                            CONCLUSION

                                                After review of the applicable statutes, testimony, and case law, the verdict was not

                            against the weight of evidence. Accordingly, this Court's decision should be affirmed.




                                                                                                                                                                                  BY THE COURT:




                            DATE: March21,2017                                                                                                                                         DIANAL.ANHALT, J




                                                                                                                                      8
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                                            PROOF OF SERVICE

                                                   I hereby certify that on the date set forth below, I caused an original copy of the Judicial
                                            Opinion to be served upon the persons at following locations, which service satisfies the
                                            requirements of Pa.R.A.P. 122:

                                                                Mark Cichowicz, Esquire
                                                                Defender Association of Philadelphia
                                                                1441 Sansom Street
                                                                Philadelphia, PA 19102

                                                                Hugh Bums, Esquire
                                                                Philadelphia District Attorneys Office
                                                                Three South Penn Square
                                                                Philadelphia, PA 19107




                                            Date:                �          /2. L /1 f




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