J. S69016/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
MONTEZ BETHEA,                            :          No. 2967 EDA 2013
                                          :
                          Appellant       :


          Appeal from the Judgment of Sentence, September 11, 2013,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0009460-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 23, 2014

        Appellant, Montez Bethea, appeals from his judgment of sentence

entered by the Court of Common Pleas of Philadelphia following a bench trial

before the Honorable Glenn B. Bronson.         Appellant was convicted of two

counts of first degree murder and related offenses. The trial court imposed

the mandatory sentence of life in prison for each murder charge to run

consecutive to one another. We affirm.

        Preliminarily, we must address the facially untimely filing of the notice

of appeal. Post-sentence motions were filed and denied on September 20,

2013.     Because the 30th day to file the notice of appeal fell on Sunday,

October 20, 2013, appellant had until Monday, October 21, 2013 to file his

appeal.    See Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A.; 1 Pa.C.S.A. § 1908.

Appellant filed his notice of appeal on October 22, 2013.
J. S69016/14


      On December 20, 2013, this court issued a rule to show cause why the

appeal should not be quashed as untimely. On January 3, 2014, appellant’s

counsel filed his response in the form of a petition to show cause why notice

of appeal should be deemed timely and should not be quashed.           Counsel

noted the following docket entry of the Philadelphia Court Criminal Electronic

Filing System:   “09/23/13 Order Denying Motion for New Trial.”        Counsel

proceeded to electronically file his notice of appeal, via the electronic filing

system, on October 22, 2013. Attached to his notice of appeal was a copy of

the electronic filing system sheet which indicated the order denying motion

for a new trial was filed on September 23, 2013.             (Certified record,

document #18.)

      The paper docket entry in the official record lists the order denying

motion for a new trial as filed on September 20, 2013.         Thus, this case

presents two conflicting dockets that yield different results when the

timeliness of appellant’s notice of appeal is analyzed. Pursuant to the online

docket, the 30th day in which to file his appeal was October 23, 2013, and

appellant’s appeal is timely. Pursuant to the paper docket, the appeal period

expired on October 21, 2013, and appellant’s notice of appeal is untimely.

We find that this dichotomy must be resolved in appellant’s favor.         See

Calabrese v. Zeager, 976 A.2d 1151, 1153 (Pa.Super. 2009) (where there

was a conflict between court’s internet and paper dockets and appellants

relied on errors contained in flawed docket published by county, we granted



                                     -2-
J. S69016/14


equitable relief through an appeal nunc pro tunc).         Therefore, we may

proceed to review appellant’s appeal on the merits and will not quash it for

untimeliness.

      The trial court opinion sets forth the relevant facts and procedural

history of this case. Therefore, we have no need to restate them here.

      Appellant raises the following issues for our review:

            I.     Is the Defendant entitled to an arrest of
                   judgment on each of two Counts of First
                   Degree Murder where the evidence is
                   insufficient to sustain the verdict?

            II.    Is the Defendant entitled to a new trial on each
                   of two Counts of First Degree Murder where
                   the verdict is not supported by the greater
                   weight of the evidence?

Appellant’s brief at 3.

      After a thorough review of the record, appellant’s brief, 1 the relevant

law, and the well-reasoned opinion of the trial court, we hold the sufficiency

and weight arguments proffered by appellant are without merit.        The trial

court’s opinion carefully addresses and correctly disposes of the sufficiency

and weight claims raised before it by appellant. Accordingly, we dispose of

appellant’s issues on the basis of that opinion.

      Judgment of sentence affirmed.




                                     -3-
J. S69016/14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2014




1
  The Commonwealth filed a brief in which it relied on the trial court’s
opinion.


                                 -4-
___ ___ .__ _ _ _ __ ____ •.' __ . -1_ - - ..• ..;,   - -,',   - --~ -
                                                                         --..   '~-                               - ,-- .. ,...11/25/2014
                                                                                      .... _.-':.- -,.-._.'------ Circulated
                                                                                                                 ".'   ,                   ..
                                                                                                                                  ,',._--_ 09:30 AM -_.
                                                                                                                                         - ~ - -- - -




                                                  rN THE COURT OF COMMON PLEAS
                                           FIRST JUDICIAL DISTRICT OF PENNSYLVAI'-IIA
                                                         CRIMINAL TRIAL DIVISION

                                                                                                CP-S1-CR-0009460-2011


                               v.

                      MONTEZ BilTIffiA
                                                                                                    1111111111111111111111 III
                                                                                                           709370694 1

                      BRONSON, J.                                                               December 6. 2013


                      On September 11 , 2013 , following a non-jury trial before thls Court, defendant Montez

              Bethea was convicted of two counts of first-degree murder (18 Pa.e.S. § 2502(a)), two counts of

              criminal conspiracy (18 Pa.C.S. § 903), two counts of first-degree robbery (1 8 Pa.e.S. §

              3701 (a)(I)(i), one ~Ounl of carrying a fueann withoul a license (18 Pa.C.S. § 6 106(a)( I)), one

              count of carrying a fircann on public streets ofPhilndelph.i1l (l8 Pa.C.S. § 6108), one count of
                               ,
              possessing a controlled substance with intent to deliver (75 Pa.C.S. § 780-1 13(a)(30)), and one

              count of possessing an instrument of crime (18 Pa.C.S , § 907(a» . The Coun immediately

              imposed the mandatory sentence of life in prison for each murder charge, to nUl consecutive to

              one another (18 Pa.C.S. § 1102(a)(I». Defendant filed post-sentence motions , which the Court

              dellied on September 20 , 2013.

                      Defendant has now appealed from the judgment of sentence entered by tile Court on the

              grounds that: l) the evidence was insufficient to support the verdict; and 2) the verdict was

              against the weight of the evidence. Statement of Matters Complained of Pursuant to Rule of

              Appellate ProcedlUe 1925(b) ("Statemenl of Errors") at ~~ 1-2. For the reasons sel forth below,

              Defendant's claims are without merit and the judgment of sentence should tx. affirmed.
                                                                                Circulated 11/25/2014 09:30 AM




                                   I. FACTUAL BACKGROUND

       At trial, the Commonwealth presented the testimony of Shante Smith, Lester Johnson,

William Whilehouso, Patricia Guy, Darryl Rigney, Philadelphia Police Officers Charles

Kapusniak. Joseph McCabe, Joseph McCauley, Stephen Ratka, Lamont Fox, Reginald Forrest,

Jr., and Kenneth Long, Philadelphia Police Detectives Gregory Rodden and Micah Spotwood,

Philaddphia Police Corporal Gerard Mertz, Philadelphia Police Captain James Smith. and, by

stipulation. the testimony of Dr. Q-,uy Lincoln Collins and Officer Ken Weitman. Co-defendant

James presented the testimony of Kuzell Bivins and Tyrik Lark. Viewed in the light most

fa'r'orable to th(, Commonwealth as the verdlc1 winner, their testimony established the fOllowing.

       On Dcc;:mhcr 8, 2010, at approximately 11 a.m., defendant Bethea called a friend, Darryl

Rigney, and asked him to accompany defendant to buy marijuana. N.T. 911 0120 13 at 115-116.

Mr. Rigney said yes, and defendant drove to Mr. Rigney's house in a Crown Victoria, N.T.

9110/2013 at 116. After he arrived at Mr, Rigney's house, defendant told Mr, Rigney to drive to

Mr. James' s house, because Mr. James knew people who sold marijuana. N .T. 9/10/2013 at 116.

Mr. Rigney dr~ve defendant to Mr. James's house in the Crown Victoria. N.T. 911012013 at 116.

When they arri:-,cd at the house, defendant got out of the car, met Mr. James at the door, and

went inside for a few minutes. N.T. 9i l 012013 at 1 16-117. The two men then returned to the

Crown Victoria in which Mr. Rigney was wa~ting. N.T. 9/1 0/2013 at [ 17.

       Once in the car, Mr. James began calling his drug supplier, Jemark Daniel. N .T.

9/1012013 at 117-120. Mr. Daniel did not answer Ihe phone. N.T. 9/10/2013 al 117. Mr. James

then called a friend, Robert Williams, and told him to meet Mr. James at 171h Street and

Fairmount Avenue. N .T. 9/1012013 at Il7-1I9. At that point, Mr. Daniel called Mr. James back

and told him that he could come by Mr. Daniel's. apartment to buy marijuana. N.T, 9110/2013 at




                                                2
- -....   '--.-~.
                                                                                    Circulated 11/25/2014 09:30 AM



                                 o                                       ')
                                                                        '--
 119. Mr. Rigney then drove the Ultee men to 11" Street and Fairmount Avenue, where Mr.

 Williams was waiting. N.T. 9110/2013 at 120. Mr. Williams had a white Cadillac with him.

 N.T. 911012013 at 120. Mr. James, defendant, and Mr. Rigney got into the white Cadillac, while

 Mr. Williams took the Crown Victoria. N.T. 9110/2013 at 120.

           Mr. Rigney drove the white Cadillac to 3001 Redner Street, where Mr. Daniellivcd..

 N.T. 9/1012013 at 120. Mr. James and defendant got out of the car and went into Mr. Daniel's

 apartment. N.r. 9/10/2013 at 121· 122. Upon entering the apartment, Mr. Jomes and defendant

 shot and killed Mr. Daniel and his girlfriend, Palranella London, and stole his marijuana and

 passports from the apanment. Mr. James and defendant then Oed the apartment, running back to

 the Cadillac with a large black garbage bag. N.T. 911012013 at 122. As Mr. Rigney drove the

 car away from the apartment building, Mr. James said to Mr. Rigney, "I took his shit." N.T.

 911012013 at 160.

           Mr. Daniel's neighbor. Lester Johnson, heard the gunshots and looked out his window.

 N.T. 911012013 at 10. He saw the white Cadillac speed off from Mr. Daniel's apartment. N.T.

 911 0/2013 at 10. Mr. Johnson "Wrote down what he could see oflhe license plate number, which

 was "HP 7-27." N.T. 911 012013 at 11-14. A friend who was with Mr. Johnson called 911, and

 the police arrived on the scene. N.T. 9/10/2013 at 12, 40, 89. Upon entering the apnrtmcnt and

 seeing the bodies of Mr. Daniel and Ms. London, il was immediately apparent to police officers

 Ihat they were both dead. N.T. 9/1012013 al40~41. The paramedics arrived and pronounced

 both victims. N.T. 9/1012013 at 41. Mr. Daniel had been shot ten times: twice in the chest,

twice in the stomach. four times in the left arm, once in the left thigh, and once in the right thigh.

N. T. 919/2013 at   160~ 161 .   Ms. London had been shot thirteen times: eight times in the back,

three times in the left thigh, once in the left arm, and once in the left leg. N.T. 91912013 at 161.




                                                     3
        ·... .... ~- -- .....,-.---   ~."",-_   n,"" .       .   ~   ..... --   ._-,-----_ ...... __ .. _ . Circulated    ---,'._... ... _09:30
                                                                                                             .-. ..,._-_._11/25/2014                   _- ..
                                                                                                                                          -, .. ..__...AM  -




       At the same time, Philadelphia Police Officer Charles Kapusniak and his partner, .

Kenneth Long, were conducting surveillance on the 1800 block of North Judson Street, pursuant

to their assignment with the Narcotics Field Unit. N.T.                  9/9/2013 at 94. TIlls location was near

Redner Street, where the murders had j ust occurred. At approximately 2:40 p.m., Officer

Kapusniak observed a white Cadillac travel southbound on Judson Street before pulling ovCr

ncar 1820 North Judson Street. N.T. 91912013 at 95. Officer Kapusniak saw Darryl Rigney exit

the vehicle's driver door. while Mr. James emerged from the front passenger scat and defendant

got out of the rear passenger seat. N,T. 9/9/2013 at 95-96. All three men then walked to the rear

afthe Cadillac, and Mr. James removed a large trash bag from the Cadillac's tnmk. N.T,

91912013 at 96. The three men then ran into 1820 North Judson Street. N. T. 91912013 at 96.

       Thirty seconds after the three men ran into the house on North Judson Street, Officer

KaplIsniak received a call over police radio from Philadelphia Police Lieutenant James Smith.

N.T. 9/912013 at 96, 123. Lieutenant Smith informed Officcr Kapusniak that there had been a

shooting at 3001 Redner Street, and that a white Cadillac containing two or three black males

had been seen fleeing the scene. N. T. 9/912013 at 96, 123-125; 9/1 012013 at 16-17. Officer

Kapusniak radioed for backup. infonning Lleutenant Smith that he had just seen a white Cadillac

and that three black malcs had emerged from the Cadillac and run into a bouse. N.T. 9/912013 at

96·97, 199.

       Appro~ately     one minute after be radioed for backup, Officer Kapusniak observed two

men, later identified as Reginald Andrews and Maurice Morris. walk past bis vehicle. N.T.

91912013 at 97·98. Mr. Andrews and Mr. Morris approached 1820 North Judson Street, knocked

on the door. and entered tbe house. NT. 91912013 at 98. Mr. James then stuck his head out of

the door and looked around. N. T. 91912013 at 98. A short time later. a silver Kia sped down the




                                                         4
._.- .-.. --_._...._- _.....,"-- _... . •- _.-.-                  ...                --_.•._   - 11/25/2014 09:30 AM
                                                                                           Circulated



                                         o                                         ()
                                                                                   "-


         block and parked in the middle of the street in front of the house. N.T. 91912013 at 98-99. Mr.

         James then ran out of the house, carrying a black duffle bag. NT 91912013 at 99. He jumped

         into the passenger seat of the Kia and threw the duffle bag into the backseat. N. T. 91912013 at

         99. The driver of the Kia, later identified as Mohammed Bey, drove down Judson Street at a

         high rate of ::;pe'!d and turned down Montgomery Avenue, at which point Officer Kapusniak lost

         sight of the vehicle. N.T. 91912013 ot 99·100,120·121.

                  After Mr. Bey turned onto Montgomery Avenue, Officer Joseph McCabe and Officer

         Miles, who were backing up Officer Kapusniak, pulled over the silver Kia based on Officer

         Kopusniak's description ofthc car and its license plate number. NT. 9/912013 at 99-100. 163-

          J65 . 1 As Officer McCabe approached the passenger side of the vehicle, the passenger door

         popped open, and Officer McCabe smelled an extremely strong odor of marijuana emanating

         from the car. N .T. 9/912013 at 165. Officer McCabe opened the passenger door the rest of the

         way, and Mr. James, who was in the p<lssenger seat, immediately said, "Officer, that's my

         marijuana." N. T. 9/9/2013 at        165~166.     Officer McCabe placed Mr. James and Mr. Bey in

         custody and searched Mr. James' s pants pockets, recovering $555 cash. N.T. 9/912013 at        166 ~


         167,   179~180.   Officer McCabe then saw the duffle bag in the backseat, which was open. N.T.

         9/912013 at 167. The bag contained five clear Ziploc bags of marijuana and a scale. N.T.

         9/912013 at 167. Officer McCabe radioed Officer Kapusniak and told him that he had

         apprehended Mr. .Tames and Mr. Bey. and that he had recovered several clear Ziploc bags of

         marijuana from the duffle bag in the backseat of the K ia. N.T. 919/2013 at 100.

                 While Officer McCabe wa... apprehending Mr. James and Mr. Bey, Officer Kapusniak

         had remained at 1820 North Judson Street, surveilling the house. N.T. 9/912013 at 100-10 I.


         I Officer Miles's nrsl name was not given at trial.




                                                                 5
                             ... .•..
             -... - ....... - -         -- - "--.-.-~.----     ..- --    ----.....•. ----"-      -_ ..
                                                                                      Circulated 11/25/2014 09:30 AM




Officer Kapusniak observed Mr. Andrews and Mr. Morris emerge from the house. N.T.

9/9/2013 at 100. Mr. Andrews had a white plastic bag in his hand. N.T. 919/2013 at 100.

Officer Kapusniak again radioed backup officer~ and gave them a description afMc. Andrews

and Mr. Morris. N.T. 9/9fl.013 at 100. Mr. Andrews and Mr. Morris walked up the block.

turning onto Berks Street. N.T. 9/9/2013 at 101.

            After Mr. Andrews and Mr. Morris tumoo onto Berks Street, Officer Joseph McCauley

and Officer Aponte began pursuing Mr. Andrews and Mr. Moms on foot. based on the

descriptions relayed to them by Officer Kapusniak.             N.r. 919/2013 at 101.z Mr. Monis did not
run from the poUce, and was placed in custody. Mr. Andrews fled, throwing the while plastic

bag that he had been carrying over a fence. N.T. 91912013 at 101. Officer McCauley caught up

to Mr. AndreW!:! and placed him wtdcrarrest. N.T. 9/9/2013 at 191. Officer McCauley then

jumped over the fence and retrieved the bag that Mr. Andrews had discarded. N .T. 9/9/2013 at

191 . In the.; bag were Q clear Ziploc bag full of marijuana, several empty bags with marijuana

residue, a gun holster, a photograpb album, and two passports. The passports were later

discovered to belong to Mr. Daniel, one of the homicide victims. N.T. 9/9n013 at 192;

9/1012013 at 21-22; 911l1201J at 85·89.

            As Officer McCauley was apprehending Mr. Andrews and Mr. Morris, Offiet;r

Kapusniak continued Ius surveil lance of 1820 North Judson Street. N.T . 91912013 at 103 .

Lieutenant Smith, along with Philadelphia Police Corporal Gerard Mertz and other members of

the narcotics team) arrived at lhe house and infomled Officer Kapusniak that two people had

been killed in the shooting at 3001 Redner Street. N.T. 9/9(2013 at J03. At that point, the

officers heard movement from inside 1820 North Judson Street. and Corporctl Gerard Mertz

ordered the officers to enter the house in order to secure the property. N.T. 9/912013 at 7.02·203.

2   Office Aponte l , first nome was not given at trial.




                                                           6
•   ..___ . __ ••....• __________ 1___ • .. - --.----.-   . - ,~   •.• .. ,--'-....- -    Circulated 11/25/2014 09:30 AM




      Corporal Mertz, Lieutenant Smith, Officer Kapusniak, Officer Long, and Officer Stephen Ratka

      entered the house. N.T. 91912013 ,'103, 200.

               As   poli~ entered the house, defendant and Mr. Rigney were sitting in the living room

      along with a young WomWl, later identified as Shonte Smith. N.T. 9/9/2013 at 104, 203. Mr.

      IUgney was sitting in a chair by the front door, while defendant was sitting on a couch on the

      opposite side of the room. N.T. 9/9/2013 at 40, 104,226. Next to defendant was a dog cagc, on

      top of which was an unzipped duffie bag. N.T. 9/912013 at 104. Inside that duffle bag, clearly

       visible to the police, were clear Ziploc bags full of marijuana. N .T. 919/2013 al104, 148.

      Defendant, Mr. Rigney, and Ms. Smith were all placed in custody. From Mr. Rigney's pocket,

      Officer Ratkn recovered the key to the white Cadillac. N.T. 9/9120 13 at 109, 152,226.

               Police pcrfonned a protective sweep of Lbe property for other suspects, and awaited a

      search warrant in order to further search the property. N.T, 91912013 at 104-105, t 49,200,221;

      9/10/2013 at 19-21. As police awaited the warrant, Ms. Smith was sitting in a chair and

      defendant and Mr. James were sitting on the floor. N.T. 9110/2013 at 4 1-42. All three were

      handcuffed. N.T. 91912013 at 41 -43. As he sat on the floor in handcuff.:;, defendant kicked a

      pink bag undeqteath the couch. N.T. 911012013 ,,43 ·44.

               After obtaining a search warrant, police searched the entire residence. N.T. 91912013 at

       105- I 06. Police recovered seven clear liploe bags full of marijuana from within the open duffle

      bag and five clear Ziploc bags full of marijuana from within 8 white trash bag . N.T. 9/9/2013 at

      106,240. Police also recovered the pink bag from underneath the couch, which contuined a .357

      revolver, a 9-mil1imctcr handgun, and a .45 caliber handgun. N.T. 9/10/2013 at 66.

              Police recovered 25 pieces of ballistics evidence from the scene of the murders: eighteen

      fired cartridge (lasings and projc(..1:iies from a 9-millimeter handgun, four fiJed cartridge casings




                                                                     7
- -- ---- ... -.- ------; .. _._._ ---_ ....- ..          ---~          --' "   --_.                Circulated 11/25/2014 09:30 AM



                                                                                       o
     from • .45 caliber handgun, two bullets from a .357 revolver, and one bull'tjeeket of

     indeterminable caliber. N.T. 911012013 at 66·68. TIle Firearms Unit matched 11 oflhe fired

     cartridge casings to the 9-millimeter gun recovered from the pink bag found in 1820 North

     Judson Street, one oftbe fIred cartridge casings to the.45 caliber handgun fOWld in the pink bag,

     WId   both of the .357 bullets to the .357 revolver found in the pink bag. N.T. 9/10/2013 at 70-71.

     The medical examiner recovered three 9-millimctcr bullets from Ms. London's body, and one 9-

     millimeter bullet and one .45 caliber bullet from MI . Daniel's body. N.T. 9/1012013 at 69. The

     .45 caliber bullet removed from Mr. Daniel's body was matched to the.45 caliber handgun from

     the pink bag. N.T. 911012013 at 70'

              After obtaining a search warrant for the Cadillac, the police recovered ITom its trunk the

     license plate that was registered to the car, which read "HJZ·\543 ." N .T. 911 0/20 13 at 27. The

     license plate that was affixed to the Cadillac, which was not registered to the car, read "HPG·

     2737." NT 911012013 at 25-26.

              The marijuana recovered from 1820 North Judson Street, the marijuana recovered from

     the Kia, and   th~   marijuana that Mr. Andrews attempted to discard over a fence were all

     "hydroponic" marijuana, which is a parti,culurly expensive, powerful, and pungent-smelling form

     ofthe drug. N.T. 9110/2013 at 14. 56. All of this marijuana was identical to the small amount of

     marijuana that was leIl behind in the apartment at 3001 Redner Street. N.T. 9/1012013 at 56,




     l The remaining 9·millimeler and .45 t.alibcr flfed cartridge casings and bullets were eonmrent with the 9·millimeter
     handgun and 1111,:.45 caliber hundgWl recovered from the bag, but had insufficient mnrkings to positively match rhe
     clIsmgslo the fm!Olrms . N.T. 9/10/2013 at 71.




                                                              8
         ._- .. - .-- " .....   -.,---.~ . ---- -   ..-._ .. , .. -..• ,   .. --           Circulated 11/25/2014 09:30 AM
                                                                                   ..• - ---~--.---



                                                                               o
                                             II. orscussrON
          A. Sufficiency oflhe evidence

          Defendant claims that he "must be awarded an arrest of judgment on all charges,

including murder in the first degree, crirninul conspiracy, robbery and related offenses, as Olere

was insufficient evidence to sustain the verdict More specifically, the Commonwealth did not

prove that the Defendant was the perpetrator of the crimes, nor a criminal conspirator, nor an

accomplice. With regard to murder in the first degree, the Commonwealth did not prove specific

intent to kill, malice, nor premeditation." Statement of Errors at 1 t. These claims are without

merit,

          In considering a challenge to' the sufficiency of the evidence, the Court must dt:cide

whether the evidence at trial, viewed in the light most favorable to Lhe Commonwealth, together

with all reasonable inferences therefrom, could enable the fact-finder to find every clement of the

crimes charged beyond a reasonable doubt. Commonwealth v. Walsh, 36 A.3d 613 , 618 (Pa.

Super. 2012) (quoting Commonwealth v. Brombraugh, 932 A.2d 108, 109 (Pa. Super. 2007)). In

making this assessment, a reviewing court may not weigh the evidence and substitute its own

judgment for that of the fact-finder, who is free to believe all, plUt, or none- of the evidence.

Commonwealth v. Ram/ahal, 33 AJd 602, 607 CPa. 2011). <I[A] mere conflict in the testimony

of the witnesses does not render the evidence insufflcienl.. ... Commol/wealth v. Monlini, 712

A,2d 761, 767 (pa. Super. 1998). The Commonwealth may satisfy its burden of proof entirely

by circumstant~al evidence. Ram/ahal, 33 A,3d at 607. "If the record contains support for the

verdict, it may nol be disturbed." Commonwealth v. Adams, 882 A.2d 496. 499 (Pa. Super.

2005) (quoling Comlllonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2000), appeal den;ed,

782 A.2d 542 (Po . 2001».




                                                    9
--_.... _.--
                                                                                                                .__ .0' __ .' • ____ ._   _ ..
                    _ _ _ 1.· •.• • ·. _ _ _ _ _       ·• • . . • .- •••... " ..   -.~   •• ' - ' - - -
                                                                                                    Circulated 11/25/2014 09:30 AM



                                   o
              1. Identification

              Defendant's first claim regarding the sufficiency ofthe evidence is th~t the evidern;e

       failed to establish that he was the perpetrator of the crimes of which he was convicted.

       Statement of Errors at ~ 1. The standard governing the sufficiency of identification evidence, lS

       \'Jell-established: absent a tainted identification procedure, "the Commonwealth's burden is

       simply to introduce evidence solid enough to avold conjecture." Commonwealth v. Hurd,407

       A.2d 41 S, 422 cPa. Super. 1979). Identification testimony need Dot be positive, and

       indefiniteness or uncertainty in the testimony goes to its weight and not its sufficiency.

       Commollwealth   \I.   Hickman, 309 A.2d 564, 566 (pa. 1973); Commonwealth                 \I.   Cain, 906 A.2d

       1242,1245 (pa. Super. 2006), appeal denied, 916 A.2d 1101 (Pa. 2007); Commanweal/II v.

       Mason, 236 A.2d 548 (Pa. Super. 1967). The test is whether the evidence, viewed in lhc light

       most favorable to the Commonwealth. and accepting all reasonable infc,rences therefrom, could

       enable the factfinder to conclude that the defendant was the perpetrator. Hickman, 309 A.2d at

       566.

              Here, there was substantial testimonial evidence from which a reasonable juror could

       conclude that defendant committed the crimes of which he was convicted. Darryl Rigney, who

       had known defendant for 20 years, testified to defendant's involvement in the killing. Mr.

       Rigney testified that, after Mr. James talked to Mr. Daniel about purchasing marijuana,

       defendant., Mr; James, and Mr. Rigney switched cars with another man and drove to Mr. Daniel's

       apartment in a white Cadillac. N.T. 9/1012013 at 115·120. 'Mr. Rigney testified tJ,at defendant

       and Mr. Jame~ went inside Mr. Daniel's apartment [U]d~ a few minutes later, ran from ihe

       apartment to the car carrying a large garbage bag. N. T. 9/1012013 at l22. Lester Johnson

       testified thnt) at the same time, he heard gunshots and saw a white Cadillac fleeing the scene,




                                                        10
                                                                                 Circulated 11/25/2014 09:30 AM


                          ()                                         (J

N.T. 9/10/2013 at 10. Officer Kapusniak testified that, as he perfonned unrelated narcotics

surveillance near the scene of1he murders, he observed three black men, including defendant,

pull up in front of a house in a white Cadillac) remove a large bag from the car's trunk, and run

inside the house. NT. 9/912013 at 95-96. Officer Kapusniak aJsa testified that he had a clear,

unobstmcted view of the front afthe house from his patrol vehicle. N.T. 9/912013 at 110-111.

This testimony was compelling evidence from which lIte Court, as factfUlder, could conclude

that defendant corrunitted the murders.

       Likewise, there was strong physical evidence that proved that defendant was the

perpetrator of the crimes. Officer Kapusniak testified that, after police entered the house in

which defendant was hiding after the murders, defendant and Mr. Rigney were sitting in the

living room and that next to defendant was an unzipped duffle bag containing clear Ziploc bags

full of marijuana. N.T. 9/912013 at 104. 148. Ms. Smith testified thal, ElS police awaited   tIle

warrant, she, defendant, and Mr. Rigney were all placed in handcuffs as they sat in the living

room. As she sat in a chair approximately four feet away from defendant, she saw him kick a

pink bag underneath the couch. N.T. 911012013 .t41-44. The stipulated testimony of Officer

Ken Weitman established that this bag contained the murder weapons. as the guns were matched

to the ballistics found at the crime scene and recovered from the body of one of the victims. N.T.

9/ 1012013 at 66-71. Officer McCauley testified that a man leaving the house in which defendant

was fOWld was in possession of a bag containing passports belonging to Mr, Daniel. NT_

9/912013 at 192. Further, the marijuana recovered from the bag found next to defendant at the

time of his an-est matched the specific type of marijuana found at the scene of the murders. N.T.

9/1 012013 at 56. This was overwhelming evidence that defendant committed the crimes of

which he was convicted.




                                                11
                                                       ---.~.-       --_   .....-   Circulated 11/25/2014 09:30 AM

                          (,
                          \J


       2. Specific Intent to Kill

       Defendant also claims that there was insufficient evidence to prove that he acted with the

requlsite intent to commit first-degree murder. Statement of Errors at"ii I. The evidence is

sufficient to establish first-degree murder "where the Commonwealth proves that ( I) a human

being was Wllawfully killed; (2) the person accused is responsible for the killing; and (3) the

accused acted with specific intent to kill." Commonwealth    \I.   Bedford, 50 A3d 707, 711 (Pa.

Super. 2012), appeal denied, 57 A.3d 65 (pa.) (quoting Pa.C.S. § 2502(.)). The specific intent to

kill can be inferred "from the manner in which the homicide was committed, such as, multiple

gunshot wounds." Commonwealth v. Hughes, 865 A.2d 761, 793 (Pa. 2004). Moreovcl, specific

intent to kill may be inferred from a defendant's use of a deadly wcapon on a vital part of the

victim's body. Commonwealth v. Robertson, 874 A.2d 1200, 1207 (pa. Super. 2005). To be

guilty offirsl-degree murder, a dcfendam who is member ora conspiracy to commit murder need

not commit the act thaI results in the death of the defendant since all members of il conspiracy

are "liable fo r the actions of the others if those actions were in furtherance of the common

criminal design." Commonweallh v. King, 990 A.2d 1172, 1178 (pa. Super. 2010).

       Here, there was compelling evidence that defendant acted with the specific in tent to kill.

The stipulated testimony of the medical examiner established that Mr. Daniel was shot ten times

and Ms. London was shot thirteen times, by two different guns. N.T. 9/9120 13 at 160-161. The

crime scene investigator testified that 25 pieces of ballistics evidence were recovered from the

crime scene. NT. 9/10/2013 at 52-71 . Further, Mr. Rigney testified that, when he, defendant,

and Mr, James were surveying the proceeds of the robbery, Mr. James asked defendant whether

be "finish[ed)" Ms. London, to which defendant responded, "[gjuaranteed." N.T. 9/1012013 at

126. All of this was compelling evidence that defendant acted with the specific intent to kill Mr.




                                                12
                                              ~.,      .    . -. - - _. '-Circulated
                         , . ___ ,-.. _"_. ,,. ;. .._4_'·_________ -       ._-_ ......   -.- 09:30 AM
                                                                                     11/25/2014



                          n.......


Daniel and Ms. London when he repeatedly shot them. Accordingly, UIC evidence was pluinly

sufficient to support the jury' s verdict oftirst-degree murder,

       B. Weight of the Evidence

       Defendant claims that "the verdict is not supported by the greater weight of the evidence.

RaUter. the greater weight of the evidence did not establish that the Defendanl was a principal.

conspirator, nor an accomplice to any orthe crimes cbarged. lbe greater weight of the evidence

only estabHshed that the Defendant was in proximity to the proceeds of the crime, after the crime

occulTed. The verdict was based all speculation, conjecture. and surmise, which is not

permissible:' Statement of Errors at ~ 2. This claim is without merit.

       11 is wcll·established that a new trial may only be granted by the ninl court where the

verdict was so yontrary to the weight of the evidence as to "shock one's sense of jus lice."

Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (pa. Super. 2004), appeal dellied, 878 A.2d 864

(Pa. 2005) (quoting Commonweal{h v. HUrlter, 554 A.2d 550, 555) (Fa. Super. 1989)).

Moreover. credibility determinations are solely within the province of the fact-finder, and "an

appellate court may not reweigh the evidence and substitute its judgment for that of the finder of

fact." Commonwealth v. Tay/or,63 A.3d 327 (Pa. Super. 2013) (quoting Commonwealth v.

Shaffer, 40 AJd 1250, 1253 (pa. Super. 2012)). Tn considering a claim UJat the trial court erred

in refusing to find that a verdict was against the weight of the evidence, "appellate review is

limited to whether the trial court palpably abused its discretion in ruling on the weight claim."

Taylor, 63 A.3d at 327 (quoting Shaffer, 40 AJd at 1253).

       The overwhelming evidence outlined above plainly established that defendant committed

the crimes of which he was convicted. Because the evidence fully supported the verdict, the

COW1 did nol abuse its discretion in denying defendant's motion for a new triaL




                                                    13
----. _···_·-·-1                                                          Circulated 11/25/2014 09:30 AM




                                  Ill. CONCLUSION

    For aU of the foregoing reasons, the Court's judgment of sentence should be affirmed.



                                                       BY THE COURT:



                                                     ~~~
                                                       GLENN B. BRONSON, J.




                                         14
