J-S41003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFFREY ALLEN REID, JR.,

                            Appellant                No. 1194 MDA 2016


             Appeal from the Judgment of Sentence April 29, 2016
                 in the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0006147-2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 27, 2017

        Appellant, Jeffrey Allen Reid, Jr., appeals from the judgment of

sentence imposed following his jury conviction of murder of the first degree,

murder of the second degree, robbery, and related crimes.1 Specifically, he

challenges the sufficiency of the evidence for the murder convictions.

Appellant also claims a Brady violation.2 We affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant purports to appeal from the denial of post-sentence relief. (See
Appellant’s Brief, at 1). The appeal properly lies from the judgment of
sentence made final by the denial of post-sentence motions.              See
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003).
2
    Brady v. Maryland, 373 U.S. 83 (1963).
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       We derive the facts of the case from the trial court opinion and our

independent review of the certified record.

       Seeking money to get out of town, Appellant embarked on a series of

three botched robberies with his girlfriend and several other co-conspirators.

(See Trial Court Opinion, 10/06/16, at 4-5).             When these proved

unsuccessful, Appellant decided to call a friend, Dashaun Davis, and ask him

to come over, to rob him, knowing that he usually had money. (See id. at

9).

       When Davis arrived, Appellant’s cohort, NaQuan Coakley, tried to rob

him at gunpoint.    Appellant was nearby.     Davis reached for the revolver.

Coakley fired, several times. While this was happening, Davis called out to

Appellant by his street name, “Sincere.”      Appellant told Coakley to “finish

him” or “off him.” (N.T. Trial, 3/07/16, at 261; see also Trial Ct. Op., at 9-

10).

       Appellant asked the other robbers for help in disposing of Davis’ body,

but they refused. By this time they heard the sound of sirens coming from

police cars responding to reports of shots fired. Everybody scattered.

       Later, in prison, Appellant was housed with cellmate Andrew Horn.

Appellant asked Horn to write to his (Appellant’s) attorney claiming that

Coakley had told him that he shot Davis, and Appellant was not involved.

Horn wrote a letter, but did not send it. Instead, Horn became a prosecution

witness at trial.


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       Horn testified, inter alia, that Appellant told him that he gave the order

to Coakley to finish off the victim, Davis.      Another co-conspirator, Malik

Williams, (Coakley’s younger brother), also testified against Appellant.

       The jury convicted Appellant of murder of the first degree, 18

Pa.C.S.A. § 2502(a), and murder of the second degree, 18 Pa.C.S.A.

§ 2502(b).3     The trial court imposed a sentence of life without parole on

murder of the first degree4 plus a consecutive aggregate term of not less

than twenty-four years nor more than forty-eight years of incarceration in a

state correctional institution on the other non-murder convictions.5         The

court denied Appellant’s post-sentence motions without a hearing.           This

timely appeal followed.6

       Appellant presents three questions for our review:

             1. Whether the trial court erred in denying the [m]otion for
       [p]ost-[s]entence relief where the evidence was not sufficient to
       support a conviction for [m]urder in the [f]irst [d]egree?

____________________________________________


3
  The jury also convicted Appellant of criminal attempt, robbery─threat of
immediate serious injury; conspiracy─robbery-threat of immediate serious
injury; and robbery─infliction of serious bodily injury. Appellant does not
raise any challenge to these convictions on appeal.
4
 The court concluded that the sentence for murder of the second degree
merged for purposes of sentencing. (See Trial Ct. Op., at 2).
5
  When the verdict was read, Appellant responded with obscenities, on the
record, at both the judge and the jury. (See N.T. Trial, 3/10/16, 455-56).
6
  Appellant timely filed a statement of errors complained of on appeal. The
trial court filed an opinion on October 6, 2016. See Pa.R.A.P. 1925.



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            2. Whether the trial court erred in denying the [m]otion for
      [p]ost-[s]entence relief where the evidence was not sufficient to
      support a conviction for [m]urder in the [s]econd [d]egree?

           3. Whether the trial court abused its discretion in denying
      the Appellant’s request for a mistrial and subsequent request for
      a new trial on the grounds of a Brady violation?

(Appellant’s Brief, at 4).

      Preliminarily, we note that although Appellant purports to challenge

the sufficiency of the evidence for the murder convictions, in fact, aside from

lengthy quotations of general principles not in dispute here, his argument

challenges credibility, chiefly that of Andrew Horn. (See Appellant’s Brief, at

12) (“the record is bereft of any credible evidence . . .”), (see id. at 16)

(same).

      A challenge to witness credibility goes to the weight rather than the

sufficiency of the evidence. See Commonwealth v. Palo, 24 A.3d 1050,

1055 (Pa. Super. 2011), appeal denied, 34 A.3d 828 (Pa. 2011) (“Directed

entirely to the credibility of the Commonwealth’s chief witness, Appellant’s

claim challenges the weight, not the sufficiency, of the evidence.”); see also

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011), appeal

denied,   54    A.3d    348   (Pa.   2012)   (“Given    additional   evidentiary

circumstances, ‘any indefiniteness and uncertainty in the identification

testimony goes to its weight.’”) (citation omitted).

      “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 assess the credibility


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of the witnesses. This Court cannot substitute its judgment for that of the

jury on issues of credibility.” Commonwealth Dougherty, 860 A.2d 31, 36

(Pa. 2004), cert. denied, 546 U.S. 835 (2005) (citations omitted).

      Appellant fails to develop any other argument in support of his bald

denials of sufficiency. As the Commonwealth correctly notes, our Supreme

Court has determined that a challenge to the sufficiency of the evidence,

which is really a challenge to the weight of the evidence, must fail. (See

Commonwealth’s Brief, at 13) (citing Commonwealth v. Small, 741 A.2d

666, 672 (Pa. 1999), cert. denied, 531 U.S. 829 (2000)). Accordingly, we

reject Appellant’s challenge to the sufficiency of the evidence, as waived.

Additionally, because Appellant failed to raise and preserve a proper weight

claim, that issue is waived as well.

      Moreover, the first sufficiency claim would not merit relief. “Because

evidentiary sufficiency presents a question of law, our standard of review is

de novo and our scope of review is plenary.” Commonwealth v. Johnson,

107 A.3d 52, 66 (Pa. 2014), cert. denied, 136 S. Ct. 43 (2015) (citation

omitted).

                When reviewing the sufficiency of the evidence for
         first degree murder, we are obliged to determine whether
         the evidence presented at trial and all reasonable
         inferences derived therefrom, viewed in the light most
         favorable to the Commonwealth as verdict winner, are
         sufficient to satisfy all elements of the offense beyond a
         reasonable doubt.

          To convict a defendant of first degree murder, the
      Commonwealth must establish a human being was unlawfully

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      killed, the defendant was responsible for the killing, and the
      defendant acted with malice and a specific intent to kill. See 18
      Pa.C.S. § 2502(a)[.]      The Commonwealth may use wholly
      circumstantial evidence to discharge its burden of showing the
      accused intentionally killed the victim, [ ], and circumstantial
      evidence can itself be sufficient to prove any or every element of
      the crime[.]

Commonwealth v. Perez, 93 A.3d 829, 841 (Pa. 2014), cert. denied, 135

S. Ct. 480 (2014) (case citations omitted). “Although a conviction must be

based on more than mere suspicion or conjecture, the Commonwealth need

not establish guilt to a mathematical certainty.”         Commonwealth v.

McCollum, 926 A.2d 527, 530 (Pa. Super. 2007) (citation and internal

quotation marks omitted).

      Murder of the first degree is defined by statute as follows:

            (a) Murder of the first degree.─A criminal homicide
      constitutes murder of the first degree when it is committed by an
      intentional killing.

18 Pa.C.S.A. § 2502(a).

      Here, Appellant denies, without developing an argument supported by

reference to pertinent authority, that the evidence was sufficient to prove his

specific intent to kill.   (See Appellant’s Brief, at 9-10).    He also baldly

asserts that there was insufficient evidence to link him as an accomplice or

co-conspirator to the murder of Davis committed by Coakley. (See id. at

12). We disagree.

      “[I]t is well-established in Pennsylvania law that the specific intent to

kill can be formed in a fraction of a second, and may be found whenever the


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defendant acts with a conscious purpose to bring about the death of the

victim.” Commonwealth v. Chambers, 980 A.2d 35, 47 (Pa. 2009), cert.

denied, 560 U.S. 928 (2010) (citations omitted). “[T]he Commonwealth can

prove     the   specific   intent   to   kill   from   circumstantial   evidence.”

Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa. 2000), cert.

denied, 533 U.S. 932 (2001) (citation omitted).            “Furthermore, all co-

conspirators to a murder may be found guilty of first degree murder,

regardless of which person actually inflicted the wound which resulted in

death.” Small, supra at 672 (citing Commonwealth v. Gibson, 688 A.2d

1152, 1158 (Pa. 1997), cert. denied, 522 U.S. 948 (1997)).

        In this case, the jury was free to accept the evidence that Appellant

conspired with Coakley to rob Davis, and specifically ordered Coakley to

murder Davis.       Such evidence was sufficient to establish Appellant’s

involvement in a conspiracy to rob Davis, and Appellant’s order to finish

Davis off when he resisted, and recognized Appellant.                   See, e.g.,

Commonwealth v. Jones, 668 A.2d 491, 502 (Pa. 1995), cert. denied, 519

U.S. 826 (1996) (evidence of appellant’s involvement as gang member

admissible to prove motive for victim’s murder and existence of criminal

conspiracy). Appellant’s first insufficiency claim would not merit relief.




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        Appellant’s second claim, insufficiency of the evidence for murder of

the second degree, fails for the same reasons.7         Here, again, Appellant

challenges the credibility of the evidence.      (See Appellant’s Brief, at 16)

(“The record is bereft of any credible evidence . . . “). Credibility goes to

weight, not sufficiency.        The jury was free to accept the evidence that

Appellant ordered the death of the victim, Davis, in the course of conspiring

to commit a felony, a robbery, which was sufficient to establish murder of

the second degree. Appellant’s second insufficiency claim would fail on the

merits.

        Finally, in his third claim, Appellant asserts a Brady violation,

maintaining that the Commonwealth failed to turn over the cell phone billing

records of the victim, Deshaun Davis. (See id. at 17-20). He claims he is

entitled to a new trial. We disagree.

        “[T]o establish a Brady violation, an appellant must prove three

elements: (1) the evidence at issue is favorable to the accused, either

because it is exculpatory or because it impeaches; (2) the evidence was

suppressed by the prosecution, either willfully or inadvertently; and (3)
____________________________________________


7
    Second degree murder is defined by statute as follows:

              Murder of the second degree.─A criminal homicide
        constitutes murder of the second degree when it is committed
        while defendant was engaged as a principal or an accomplice in
        the perpetration of a felony.

18 Pa.C.S.A. § 2502(b).



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prejudice ensued.”    Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa.

2013) (citations omitted).

      Here, Appellant argues that a Brady violation occurred because billing

records of cell phone usage for a phone registered to the victim, Mr. Davis,

were not turned over by the Commonwealth. Notably, the billing records did

not include the content of conversations. Nevertheless, Appellant maintains

that the absence of a record for receipt of a text message on the night Davis

was murdered could have been used to impeach Horn’s testimony that he

was told Appellant called Davis, so he could rob him.      Appellant fails to

establish a Brady violation.

      First, Appellant fails to show how such information would be

exculpatory or could be used for impeachment.      To the contrary, at trial,

counsel for Appellant conceded that he did not know if any such evidence

would be favorable.   (See Trial Ct. Op., at 17 (citing N.T. Trial, at 403)).

Moreover, as noted, the billing records did not include the text of any

messages.   Absent an indication of content, the claim that such evidence

would be exculpatory or useful for impeachment is no more than speculation

and conjecture.

      In any event, Appellant does not deny that he was at the murder

scene; he only claims that he was merely present. (See Appellant’s Brief, at

12). The determination of guilt or innocence depended on whether he was




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an active participant in the robbery and murder. Whether or not Appellant

called Davis would not have been determinative of guilt or innocence.

          Secondly, Appellant fails to show that the supposed evidence was

suppressed by the prosecution, either willfully or inadvertently.        Thirdly,

Appellant fails to demonstrate that prejudice ensued, in other words, that

the phone records would have undermined confidence in the verdict.

          A Brady violation is established by showing that the favorable
          evidence could reasonably be taken to put the whole case in
          such a different light as to undermine confidence in the verdict.
          Importantly, the mere possibility that an item of
          undisclosed information might have helped the defense,
          or might have affected the outcome of the trial, does not
          establish materiality in the constitutional sense. In order
          to be entitled to a new trial for failure to disclose evidence
          affecting a witness’[s] credibility, the defendant must
          demonstrate that the reliability of the witness may well be
          determinative of his guilt or innocence.      In assessing the
          significance of the evidence withheld, a reviewing court must
          bear in mind that not every item of the prosecution’s case would
          necessarily have been directly undercut had the Brady evidence
          been disclosed.

Commonwealth v. Weiss, 986 A.2d 808, 815 (Pa. 2009) (citations,

quotation marks, and other punctuation omitted) (emphasis added).

Appellant fails to show he was prejudiced. His Brady claim does not merit

relief.

          Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2017




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