J-S70029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 QUIR RANDALL                              :
                                           :
                    Appellant              :   No. 3154 EDA 2017

    Appeal from the Judgment of Sentence Entered September 25, 2014
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003557-2012


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED MARCH 21, 2019

      Quir Randall appeals from his judgment of sentence entered in the

Philadelphia County Court of Common Pleas on September 25, 2014. Randall

challenges the sufficiency of the evidence and the trial court’s decision to deny

him a new trial based upon alleged after discovered evidence. Prior to this

appeal, we remanded for the trial court to entertain Randall’s claim that he

should have a new trial at which he could present the testimony of a proposed

alibi witness, Marc Henderson. The trial court heard testimony, found as a fact

that Henderson’s testimony was not credible, and rejected the claim. We

affirm.

      A jury found Randall guilty, in April 2014, of attempted murder and

possession of an instrument of crime. The charges arose in connection with a
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shooting, and Randall was tried jointly with his brother. 1 The trial court aptly

summarized the facts underlying Randall’s conviction:

            [Randall], and his co-defendant brother, Mustifa “Mo-Mo”
       Randall, were convicted for the November 29, 2011, attempted
       murder of Complainant, Salvatore “Little Sal” Brunetti, Jr.

             Jahlil Blount testified he knew [Randall] as “RA” and the co-
       defendant as “Mo-Mo.” He frequently saw them hanging out at the
       intersection of Oakmont Street and Torresdale Avenue, and he
       knew them because he used to buy marijuana from them.

              Jahlil testified that at approximately 1:00 p.m. on November
       29, 2011, he and the Complainant’s brother, Michael Brunetti,
       were walking through an alley between Marple Street and
       Oakmont Street when they encountered the co-defendant and a
       group of guys standing outside of 4715 Oakmont Street. A male
       described by Jahlil as a “white boy” in the group pointed at Michael
       and said: “That's the guy's son right there.” The “white boy” began
       to follow them and threw a bottle at Michael. Michael told Jahlil to
       call his father, Salvatore “Big Sal” Brunetti, Sr.

             Jahlil and Michael continued to walk. When they approached
       the corner of Marple Street and Torresdale Avenue, they observed
       [Randall] walking towards the alley. As Michael was on the phone
       with Big Sal, [Randall] walked across the street towards them and
       said: “Who are you all calling around here?”

              Jahlil and Michael met up with the Complainant and Big Sal,
       whereupon the four men decided that they would walk back to
       fistfight [Randall], co-defendant, and their friends. Jahlil walked
       on one side of the street, and the Complainant, Michael, and Big
       Sal walked on the other side. As they approached the intersection
       at Oakmont Street and Torresdale Avenue, [Randall] and co-
       defendant were standing outside. [Randall] was standing on the
       side of Oakmont Street near Torresdale Pizza in a red shirt. The
       co-defendant was standing on the opposite side of Oakmont
       Street near the dentist's office in a black hoodie. The “white boy”
       was approximately eight steps behind the co-defendant.

____________________________________________


1See Commonwealth v. Randall, 3059 EDA 2017, J-S70028-18, which we
are deciding today in a separate memorandum.

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            Michael threw off his shirt as he approached the intersection
     to show that he was ready to fight and that he did not have any
     weapons. The co-defendant walked towards them with his knees
     slightly bent and a silver revolver in his right hand, pointed his
     firearm at the Complainant and Michael, and started shooting.
     [Randall] had a black firearm, but Jahlil did not see him fire it.
     However, Jahlil testified that he heard two different guns shoot
     approximately seven shots in total: three shots from a gun that
     sounded like a “firecracker,” and four from a gun that sounded
     “like a big pow, pow.”

           Jahlil ran into an auto body shop on Torresdale Avenue as
     soon as he saw the co-defendant shooting. When he came back
     outside, he saw [Randall] and co-defendant running towards 4715
     Oakmont Street, the house where Michael and he had first
     encountered [Randall] and his friends. He then saw the
     Complainant lying on the ground between two cars.

            Michael Brunetti, the Complainant’s brother, testified that
     Jahlil Blount and he were walking through an alleyway to get pizza
     near Torresdale Avenue and Oakmont Street in the afternoon just
     prior to the shooting when they encountered a group of six or
     seven guys. Michael heard one of the guys say: “Yo; that’s the
     guy's son right there.” As Michael and Jahlil continued to walk, the
     group of guys ran up the alleyway behind them and threw bottles
     at Michael. Michael and Jahlil ran towards Michael's house until
     the group stopped chasing them. He then called his father
     Salvatore “Big Sal” Brunetti, Sr. and told him what happened.

            Michael, Jahlil, Big Sal, and the Complainant walked to the
     intersection of Torresdale Avenue and Oakmont Street to confront
     the group of guys. Michael took off his shirt and walked up with
     his hands in the air to show them that he didn't have any weapons.
     [Randall] and co-defendant ran towards Michael, Jahlil, Big Sal,
     and the Complainant and immediately opened fire. Michael
     testified:

        “They come running up, and one guy started shooting, and
        I hear more gunshots over my shoulder. I look over my
        shoulder for a second, and there was another guy standing
        right there, in front of the pizza store . . . and the other guy
        was basically in front of the dentist’s shop . . . when he
        started to shoot.”

        Michael turned around and screamed: “They got guns; run,
     run, run.” He then saw his brother lying on the ground. Michael

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J-S70029-18


     identified [Randall] as the person who was in front of Torresdale
     Pizza and testified that he was the one who shot the Complainant.
     He identified the co-defendant as the person who first ran towards
     him and started shooting. The co-defendant had his hair braided
     and was standing near the dentist’s office holding a silver gun.

        In a statement on November 30, 2011, Michael identified
     [Randall] in a photo array and told detectives: “He had the gun
     and shot my brother. He was on the same side of the street from
     [sic] my brother [near the pizza store.]” Michael testified that he
     did not tell detectives that he knew [Randall] when he gave his
     statement on November 29, 2011, because he was afraid that he
     would get in trouble for going to fistfight [Randall] and co-
     defendant.

        The Complainant’s sister, Jessica Serrano, testified that she
     knows the co-defendant by face and name because she had
     purchased marijuana from him. Jessica also knew [Randall] as
     “RA.” She and her sister, Christina Brunetti, followed their father
     and brother out of the house and stood near the corner of an alley
     near Oakmont Street and Torresdale Avenue and watched the
     shooting. She testified as follows:

        “As I run, I see Mo-Mo shooting first - Mustifa. I see him
        shooting first, and I guess he missed my brother. Then the
        other brother-I know him as “RA” [Appellant Randall] - he
        runs over, and - he is actually running toward my brother,
        and he started shooting, and he ends up hitting him, and all
        I see is my brother drop to the floor.”

           [Randall] was standing on the side of Oakmont Street near
     the pizza store. The co-defendant was standing on the opposite
     side of the street near the dentist’s office.

           In a statement to detectives on November 29, 2011, Jessica
     described the shooter as a black male, approximately 5’9”, 140
     lbs, wearing a navy blue hoodie and dark blue jeans. She told
     detectives that the shooter hangs out with “Mo-Mo,” the co-
     defendant. In a statement on November 30, 2011, she identified
     [Randall] in a photo array and wrote above his picture, “He’s the
     guy that ran up from behind and shot my brother.”

           Complainant, Salvatore “Little Sal” Brunetti, Jr., testified
     that Big Sal, Michael, Jahlil, and he walked towards the
     intersection at Oakmont Street and Torresdale Avenue to confront


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J-S70029-18


      a group of guys that had thrown beer bottles at Michael. The
      Complainant testified:

         “When we met up with my brother and Lil (Jahlil Blount), we
         started walking to meet them. I didn't even know who we
         were meeting up with. Then I heard gunshots, and I started
         running, and I felt I got hit in the back of my head. I felt my
         head. I felt blood. I looked around and I saw this [b]lack
         guy, with a hoodie on, with his gun out, and that was it.
         That's all I remember.”

            The Complainant testified that he was shot in the back of
      his head, and that he was unconscious in the hospital for months.
      He suffered brain damage and partial paralysis as a result of the
      shooting.

           Counsel stipulated that a large caliber projectile was
      removed from the Complainant’s wound in the back of his head.

            Diana Sheard testified that she was living at 4715 Oakmont
      Street on November 29, 2011, and that she had known [Randall]
      and co-defendant for approximately one year. She dated [Randall]
      months prior to the shooting.

             Sheard saw the first altercation between [Randall’s] group
      and Michael Brunetti, and testified that [Randall] and co-
      defendant were involved in both that altercation and the shooting.
      Sheard was standing on her porch that faces Torresdale Pizza with
      a friend when [Randall] came around the corner and said, “You all
      need to go in the house.” She then observed Michael Brunetti take
      off his shirt to “rumble,” but “the rumbling turned into a firing
      match, one way.”

            Sheard testified that she had an unobstructed view of the
      shooting from her house, and that she saw [Randall] standing in
      front of the pizza shop holding a gun. Sheard testified that
      [Randall] was wearing a red hoodie on the day of the incident. In
      a statement to detectives, Sheard stated that [Randall] had on a
      red hoodie prior to the shooting and a black hoodie on at the time
      of the shooting. However, Sheard unequivocally testified that
      [Randall] was one of the shooters.

Tr. Ct. Op., 3/15/16, 2-7 (citation omitted).




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       After the jury found him guilty of the above referenced charges, the trial

court sentenced Randall to an aggregate term of 10 to 20 years in prison

followed by five years of probation. Randall filed a timely direct appeal but his

trial counsel failed to file a Pa.R.A.P. 1925(b) statement or an appellate brief.

Ultimately, the trial court appointed new counsel, Attorney Levin, subsequent

to a Grazier hearing.2 This Court granted Attorney Levin’s petition to remand

for the filling of a Pa.R.A.P. 1925(b) statement. Attorney Levin filed Randall’s

Pa.R.A.P. 1925(b) statement on February 12, 2016, asserting, inter alia, that

the evidence was insufficient to sustain his convictions. The trial court issued

a comprehensive opinion regarding the same on March 15, 2016.

       Randall subsequently moved for a remand to consider his claim of after-

discovered evidence, based on alleged alibi witness Henderson’s testimony.

Although we initially denied the motion, we later granted it on reconsideration,

directed the trial court to hold an evidentiary hearing on the claim, and

relinquished jurisdiction. See Commonwealth v. Randall, No. 2961 EDA

2014 (Pa.Super. filed Dec. 13, 2016)(unpublished memorandum).

       At the hearing, which also served as a Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, hearing for Randall’s brother,

Henderson testified that at the time of the shooting he was with Randall and

his brother, approximately two blocks away from the scene. Henderson

explained that he had been incarcerated in a community corrections facility

____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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J-S70029-18



halfway house, but had escaped 11 days before the day of the shooting. He

claimed he met the Randall brothers to get either money or drugs to support

himself while he was on the run, and during the meeting, Randall gave him

125 grams of crack cocaine and $250 in cash.

      According to Henderson, during the meeting, he heard several gunshots,

and shortly thereafter, walked to a bus stop with Randall’s brother where they

both boarded a bus. He testified that at the time of the shooting he had known

both brothers for years, having known them since childhood and having been

in juvenile placement with Randall. He also said that while a fugitive, he

actively evaded law enforcement, did not communicate with either Randall

brother, and neither brother knew his whereabouts. He further stated that he

would not have testified at Randall’s trial because doing so would have

resulted in his arrest.

      Henderson remained a fugitive until 2015 when he was apprehended.

Randall testified that he got back in touch with Henderson in January 2016

when both he and Henderson were incarcerated in SCI-Somerset. He said at

the time of the shooting he did not know Henderson’s last name or how to

contact him.

      Following the hearing, the trial court denied relief. The judge reviewed

the evidence in detail on the record and stated that she found Henderson “to

be quite incredible.” N.T., 9/7/17, at 121. She pointed out that Henderson

claimed he waited 11 days after running away from the halfway house to meet

with the Randall brothers, despite needing a means of supporting himself from

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J-S70029-18



the moment he escaped. Id. at 122. She also noted that Henderson had

provided divergent accounts during his testimony of how he connected with

Randall, first saying he had connected through Facebook because he did not

have a phone, then later claiming to have called him. Id. at 122-23. She also

observed that Henderson’s description of the interaction he had with Randall

during the meeting used the same unusual word – “playful” – Randall had

used in his testimony, suggesting collusion. Id. at 123. She also found the

claim that Randall gave Henderson 125 grams of crack, which was worth “at

least $10,000,” “with no promise of repayment” to be “absurd.” Id. at 124-

25.

      Accordingly, the trial court rejected Randall’s claim that he had newly

discovered evidence meriting a new trial. The court observed that a defendant

claiming an alibi witness is aware of the witness from the outset, and because

Randall and Henderson were well acquainted at the time of the shooting,

Randall failed to establish that he could not have obtained Henderson’s

testimony with reasonable diligence at trial. The court also determined that

Randall could not show prejudice because Henderson’s testimony lacked

credibility.

      Randall filed a timely appeal and asks us to review the following issues:

          1. Whether the trial court erred in finding [Randall] guilty of
          Attempted Murder because the evidence was insufficient to
          support the verdict.

          2. Whether the trial court erred in denying the After-
          Discovered Evidence Motion because [Randall’s] alibi
          witness was credible, unavailable at the time of trial, and if

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J-S70029-18


         a new trial were granted, the verdict would likely be
         different if he testified.

Randall’s Br. at vii.

      In his first issue, Randall argues that the evidence presented at trial was

insufficient to support his conviction for attempted murder. Specifically, he

claims that the Commonwealth failed to set forth any evidence that he had

the specific intent to kill the Complainant. Randall avers that the evidence did

not show that he aimed at a vital body part of the Complainant. Instead,

Randall baldly asserts that the evidence “suggests” that Randall’s actions were

“a defensive response” to Complainant and his associates’ aggression.

Randall’s Br. at 2. We disagree.

      When reviewing a challenge to the sufficiency of the evidence, we ask

“whether[,] viewing all the evidence admitted at trial in the light most

favorable to the verdict winner, there is sufficient evidence to enable the fact-

finder to find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa.Super. 2011) (en banc)

(citation omitted). Our standard of review is de novo and our scope of review

is plenary. See Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa.Super.

2018).

      Germane to this appeal are the elements required to support a

conviction for attempted murder:

      [u]nder the Crimes Code, “[a] person commits an attempt when
      with intent to commit a specific crime, he does any act which
      constitutes a substantial step towards the commission of the
      crime.” 18 [Pa.C.S.A.] § 901(a). A person may be convicted of
      attempted murder if he takes a substantial step toward the

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J-S70029-18


       commission of a killing, with the specific intent in mind to commit
       such an act. See 18 [Pa.C.S.A.] §§ 901, 2502. The substantial
       step test broadens the scope of attempt liability by concentrating
       on the acts the defendant has done and does not any longer focus
       on the acts remaining to be done before the actual commission of
       the crime. The mens rea required for first-degree murder, specific
       intent to kill, may be established solely from circumstantial
       evidence. [T]he law permits the fact finder to infer that one
       intends the natural and probable consequences of his acts.

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008) (most

internal citations and quotation marks omitted).

       Specific intent may be inferred through the use of deadly force on a vital

part of the victim’s body. Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa.

2014).    “Further,     specific    intent     may   be   formed   in   an   instant.”

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.Super. 2010).

       In the instant case, as detailed above, three eyewitnesses, Michael

Brunetti, Christina Brunetti and Jessica Serrano, all of whom knew Randall,

testified that they saw Randall shoot the Complainant in the head.3 A shot to

the head certainly constitutes a use of deadly force on a vital part of a victim’s

body, thus establishing Randall’s specific intent to kill Complainant, even if

such intent was formed in the instant before the shot. See Jackson, 955 A.2d

at 444; Johnson, 107 A.3d at 66; Mollett, 5 A.3d at 313. Thus, viewing the

evidence in the light most favorable to the Commonwealth as the verdict

winner, we conclude that the trial court properly determined that ample

evidence established Randall had the requisite specific intent to commit

____________________________________________


3 Two other witnesses, Jahlil Blount and Diana Sheard, identified Randall,
together with his brother, co-defendant, as one of two shooters.

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murder. See Brown, 23 A.3d at 559. Therefore, Randall’s first issue does not

warrant relief.

      Turning to his second issue, Randall argues that the trial court abused

its discretion by failing to grant him a new trial in light of the “after-discovered”

testimony of Henderson. To this end, Randall contends that the trial court

erred in determining that Henderson’s testimony could have been acquired

prior to the conclusion of the trial. While, Randall specifically acknowledges

that he would have known about an alibi witness at the time of trial, he cites

the logistical difficulties he allegedly would have experienced in procuring that

testimony because Henderson contends that he was a fugitive from 2011 until

2015, living at various times in Florida, South Carolina, Georgia, and

Pennsylvania. Further, Randall asserts that the trial court erred by not

concluding that Henderson’s testimony at trial would have likely commanded

a “not guilty” verdict. He emphasizes that the evidence linking him to the

crime are “inconsistent eyewitness statements.” Randall’s Br. at 23-24. Once

again, we disagree.

      We begin by noting that when reviewing a trial court’s decision to grant

or decline to grant a new trial on the basis of after-discovered evidence, “we

ask only if the court committed an abuse of discretion or an error of law which

controlled the outcome of the case.” Commonwealth v. Padillas, 997 A.2d

356, 361 (Pa.Super. 2010) (citation omitted). “Discretion is abused when the

course pursued represents not merely an error of judgment, but where the

judgment is manifestly unreasonable or where the law is not applied or where

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the record shows that the action is a result of partiality, prejudice, bias or ill

will.” Id. (citation omitted). It is beyond cavil that it is the province of the

fact-finder to believe all, part, or none of the evidence. Commonwealth v.

Rabold, 920 A.2d 857, 859 (Pa.Super. 2007).

      To be granted a new trial, a defendant must prove that the after-

discovered evidence:

      (1) could not have been obtained prior to the conclusion of the
      trial by the exercise of reasonable diligence; (2) is not merely
      corroborative or cumulative; (3) will not be used solely to impeach
      the credibility of a witness; and (4) would likely result in a different
      verdict if a new trial were granted.

Padillas, 997 A.2d at 363 (citation omitted). “The test is conjunctive; the

defendant must show by a preponderance of the evidence that each of these

factors has been met in order for a new trial to be warranted.” Id.

      The trial court concluded that Henderson’s testimony was not sufficient

to warrant a new trial because it could have been discovered prior to trial and

even if admitted at trial it would likely not have compelled a different result.

See id. We agree. As noted by the court, Randall would have known of the

existence of any alibi witness at the time of the crime, and the court

disbelieved all of Randall’s testimony, including that he did not know

Henderson’s last name at the time of the crime or how to contact him. These

findings are supported by the record, and they therefore bind us. Id. at 365;

Rabold, 920 A.2d at 859.




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      Moreover, Randall’s argument that Henderson’s testimony would have

compelled a different result at trial is also meritless in light of the trial court’s

determination that Henderson’s testimony was not credible. In view of that

finding, the internal inconsistencies in Henderson’s testimony, and the

eyewitness testimony at trial identifying Randall as the shooter, Randall has

not shown that the trial court erred in denying him relief. Id. Therefore,

Randall’s second issue on appeal also must fail and we affirm Randall’s

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/19




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