J-S79007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC GALES,

                            Appellant                 No. 3167 EDA 2013


      Appeal from the Judgment of Sentence entered September 27, 2013,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0005861-2007


BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED DECEMBER 19, 2014

        Eric Gales (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of second-degree murder and related

offenses.1 We affirm.

        The trial court summarized the pertinent facts as follows:

              On October 3, 2006, at approximately 9:20 pm, Gary
           Roemhild, Kevin Roemhild, Keith Pena, and the decedent
           Michael Thierry, were standing on the front steps of 1500
           Rosalie Street, where Gary rented an apartment.        As
           [they] were conversing with each other, [Appellant] and
           his [three co-defendants,] all of whom were armed,
           approached them.

____________________________________________


1
    18 Pa.C.S.A. § 2502(b).




*Retired Senior Judge assigned to the Superior Court.
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          Sensing that a robbery was about to occur, Gary
       attempted to run inside. He could not open the door
       before Isaiah Ransome who was holding a handgun,
       grabbed him and demanded that he empty his pockets.
       Keith Pena was standing on the steps next to Gary. He
       was robbed by Jerry Ransome, who brandished a .32
       caliber revolver. Kevin Roemhild and Michael Thierry were
       at the bottom of the steps, near the pavement. Appellant
       pointed a .22 caliber rifle at Kevin Roemhild’s head during
       the robbery. Sean Gordine confronted Michael Thierry.

          Gary, Keith and Kevin each gave up their money,
       wallets and cell phones. Michael Theirry dropped his keys
       and cell phone to the ground and ran. At that point, all
       four defendants turned toward Thierry and started
       shooting. Thierry was shot in the head and groin and
       collapsed near the intersection of Rosalie and Horrocks
       Streets. As they fled, the defendants turned their weapons
       on the surviving victims and fired multiple gunshots at
       them.

          Police arrived on the scene within a few minutes. There
       they found Thierry lying in the street. Thierry was taken
       to the hospital, where he died three days later.

          Over the next several months, homicide detectives
       interviewed the victims and spoke with several witnesses.
       In February of 2007, they arrested [Appellant]. Appellant
       waived his Miranda rights and gave a signed confession to
       police.

          At trial, the surviving victims and several bystanders
       who observed the robbery and subsequent shooting
       positively identified [Appellant] as one of the shooters.
       They described [Appellant] as being short and heavily built
       and also testified that he was the only assailant to have
       used a rifle. The Commonwealth also presented testimony
       from several police officers and the medical examiner,
       ballistic evidence linking the defendants to the crime, and
       a statement [Appellant] gave to police following his arrest.

          The medical examiner testified that the decedent was
       shot once in the back of the head and once in the groin.
       The wound to the decedent’s head was fatal and came
       from a .22 caliber bullet. Although the rifle used by
       [Appellant] was never recovered, police found a rifle case

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         in [Appellant’s] home while executing a search warrant.
         Appellant also admitted to police that he had used a .22
         caliber rifle during the robbery. He did not have a license
         to carry a firearm.

Trial Court Opinion, 2/11/14, at 2-4 (citations omitted).

      The trial court summarized the pertinent procedural history as follows:

            The defendants were jointly tried by jury before the
         Honorable Carolyn [Engel] Temin. On June 13, 2008, the
         jury returned a partial verdict finding all four defendants
         not guilty of first degree murder, but deadlocking on the
         remaining charges.

             A second jury trial was set to commence in May of
         2009. Prior to the start of trial, the Commonwealth asked
         Judge Temin to reconsider several evidentiary rulings she
         had made prior to [Appellant’s] first trial. Specifically, the
         Commonwealth sought the introduction of cell phone
         records and writings made by one or more of the
         defendants that had been ruled inadmissible at the
         previous trial. Judge Temin denied the Commonwealth’s
         Motion to Reconsider. The Commonwealth appealed Judge
         Temin’s ruling to the Pennsylvania Superior Court, which
         vacated her Order. On March 3, 2011, defense counsel
         filed a Petition for Allowance of Appeal in the Pennsylvania
         Supreme Court. This Petition was denied on June 2, 2011.
         Appellant’s case was then scheduled for retrial.

            On December 14, 2012, at the conclusion of a second
         jury trial, the jury found [Appellant] guilty of second
         degree murder, four counts of robbery (F-1), three counts
         of aggravated assault (F-1), criminal conspiracy,
         possession of an instrument of crime and violating §§ 6106
         and 6108 of the Uniform Firearms Act.

            [Judge Temin retired prior to sentencing Appellant and
         the case was reassigned to the Honorable Benjamin
         Lerner, S.J.]     On September 27, 2013, this court
         sentenced [Appellant] to a prison term of fifty (50) years
         to life on the second degree murder bill, and concurrent
         prison terms of ten (10) to twenty (20) years on each of
         the robbery and aggravated assault bills and three-and-


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         one-half (3½) to seven (7) years on the § 6106 bill. No
         further penalty was imposed on the remaining bills.

           Appellant thereafter filed post-sentence motions, which
         were denied by this court on October 7, 2013. This timely
         appeal followed.

Trial Court Opinion, 2/11/14, at 1-2 (footnotes omitted). Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues:

         I. Is [Appellant] entitled to an arrest of judgment on the
         charge of Murder in the Second Degree where the evidence
         is insufficient to sustain the verdict?

         II. Is [Appellant] entitled to a new trial where the verdict is
         not supported by the greater weight of the evidence?

         III. Is [Appellant] entitled to a new trial as the result of
         court error when the court permitted a homicide detective
         to testify as to [Appellant’s] prior contacts with the
         Juvenile System, and all where said testimony was grossly
         irrelevant, should have been precluded by Rule of Evidence
         403?

         IV. Should [Appellant] be remanded to the Sentencing
         Court for a new sentencing hearing where the Sentencing
         Court abused its discretion in sentencing [Appellant] to a
         warehouse term which amounted to a life sentence?

Appellant’s Brief at 3.

      In his first two issues, Appellant argues that his conviction for second-

degree murder is against the sufficiency and weight of the evidence. In his

argument, Appellant conflates these two issues. See Appellant’s Brief at 8-

11. Our Supreme Court has summarized:

         [I]t is necessary to delineate the distinctions between a
        claim challenging the sufficiency of the evidence and a claim
        that challenges the weight of the evidence. The distinction

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        between these two challenges is critical.         A claim
        challenging the sufficiency of the evidence, if granted,
        would preclude retrial under the double jeopardy provisions
        of the Fifth Amendment to the United States Constitution,
        and Article I, Section 10 of the Pennsylvania Constitution,
        whereas a claim challenging the weight of the evidence if
        granted would permit a second trial.

             A claim challenging the sufficiency of the evidence is a
        question of law. Evidence will be deemed sufficient to
        support the verdict when it establishes each material
        element of the crime charged and the commission thereof
        by the accused, beyond a reasonable doubt. Where the
        evidence offered to support the verdict is in contradiction to
        the physical facts, in contravention to human experience
        and the laws of nature, then the evidence is insufficient as a
        matter of law. When reviewing a sufficiency claim the court
        is required to view the evidence in the light most favorable
        to the verdict winner giving the prosecution the benefit of
        all reasonable inferences to be drawn from the evidence.

            A motion for new trial on the grounds that the verdict is
        contrary to the weight of the evidence concedes that there
        is sufficient evidence to sustain the verdict. Thus, the trial
        court is under no obligation to view the evidence in the light
        most favorable to the verdict winner. An allegation 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. A trial judge must do more than
        reassess the credibility of the witnesses and allege that he
        would not have assented to the verdict if he were a juror.
        Trial judges, in reviewing a claim that the verdict is against
        the weight of the evidence, do not sit as the thirteenth
        juror. 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. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations

and footnote omitted).


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     Given the above distinctions, we first address Appellant’s sufficiency

challenge. Our standard of review is well settled:

        The standard we apply in reviewing the sufficiency of the
        evidence is 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.             In
        applying the above test, we may not weigh the evidence
        and substitute our judgment for the fact-finder. In addition,
        we note that the facts and circumstances established by the
        Commonwealth need not preclude every possibility of
        innocence. Any doubts regarding a defendant's guilt may
        be resolved by the fact-finder unless the evidence is so
        weak and inconclusive that as a matter of law no probability
        of fact may be drawn from the combined circumstances.
        The Commonwealth may sustain its burden of proving every
        element of the crime beyond a reasonable doubt by means
        of wholly circumstantial evidence. Moreover, in applying
        the above test, the entire record must be evaluated and all
        evidence actually received must be considered. Finally, the
        [finder] of fact, while passing upon the credibility of
        witnesses and the weight of the evidence produced, is free
        to believe all, part or none of the evidence.


Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005), appeal

denied, 897 A.2d 452 (Pa. 2006) (citations omitted).

     “A criminal homicide constitutes murder of the second degree when it

is committed while [the] defendant was engaged as a principal or an

accomplice in the perpetration of a felony.”         18 Pa.C.S.A. § 2502(b).

“Perpetration of a felony” is defined as: “The act of the defendant engaging

in or being an accomplice in the commission of, or an attempt to commit, or

flight after committing, or attempting to commit robbery, rape, or deviate




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sexual   intercourse   by   force   or   threat    of   force,   arson,   burglary   or

kidnapping.” 18 Pa.C.S.A. § 2502(d).

     In support of his sufficiency challenge, Appellant asserts that the

victim’s murder did not occur during the “perpetration of a felony,” because

“the evidence indicates that the shooting in this matter was separate and

apart and not in furtherance of the felony in question.” Appellant’s Brief at

6. According to Appellant, “[i]n essence, the robbery had taken place and

was completed.” Id. at 9.

     In rejecting Appellant’s sufficiency challenge, the trial court explained:

            The decedent was shot and killed during the
         commission of a robbery. Moreover, ballistics evidence
         definitely proved that the fatal shot – a .22 caliber bullet to
         the back of the decedent’s head – came from the gun that
         [A]ppellant used during the robbery. Appellant (and each
         of his accomplices) is guilty of second degree murder.

Trial Court Opinion, 2/11/14, at 8-9.          Our review of the record amply

supports the trial court’s conclusion that the decedent was shot during the

commission of the robbery detailed supra.               We categorically reject as

unsupported by the record Appellant’s claim that “[the decedent] was killed

in a burst of anger as he had the audacity to remove himself from the scene

and perhaps, without coming across with too many valuables.” Appellant’s

Brief at 9. Appellant’s argument is impertinent.

     As detailed by the trial court, the evidence presented by the

Commonwealth overwhelmingly established that Appellant shot the decedent

during the commission of the robbery.             Moreover, even if, as Appellant


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suggests, the robbery had ended and the decedent was shot shortly

thereafter, his sufficiency challenge still fails.   See, e.g., Commonwealth

v. Knox, 50 A.3d 749, 757 (Pa. Super. 2012) (holding evidence was

sufficient to support juvenile defendant’s second-degree murder conviction

when co-conspirator fatally shot the victim as the victim fled from the

robbery). Thus, Appellant’s first issue is without merit.

      Appellant next challenges the weight of the evidence supporting his

convictions. “[A]ppellate review of a weight of the evidence claim normally

involves examining the trial court’s exercise of discretion in its review of the

fact-finder’s determinations[.]” Commonwealth v. Ross, 856 A.2d 93, 99

(Pa. Super. 2004) (citation omitted). This Court has summarized:

            The determination of the weight of the evidence
        exclusively is within the province of the fact-finder, who
        may believe all, part, or none of the evidence. A new trial
        should be awarded when the jury’s verdict is so contrary to
        the evidence as to shock one’s sense of justice and the
        award of a new trial is imperative so that right may be
        given another opportunity to prevail. In this regard, the
        evidence must be so tenuous, vague and uncertain that the
        verdict shocks the conscience of the court.

Ross, 856 A.2d at 99 (citations omitted).

      The trial court found no merit to Appellant’s weight claim. See Trial

Court Opinion, 2/11/14, at 4-9.       We agree.      In arguing to the contrary,

Appellant improperly repeats his sufficiency challenge: “Rather, the greater

weight of the evidence supports the finding that there was indeed a robbery

and a shooting, but that the shooting did not happen necessarily in the


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course of the robbery.”     Appellant’s Brief at 6.     As noted above, a proper

challenge to the weight of the evidence concedes its sufficiency. Widmer,

supra.      In   finding   Appellant   guilty,   the   jury    clearly   believed   the

Commonwealth’s evidence offered to establish Appellant’s guilt of second-

degree murder. Because the evidence presented was not “tenuous, vague

and uncertain,” the trial court did not abuse its discretion in denying

Appellant’s post-sentence motion for a new trial.             Ross, 856 A.2d at 99.

Thus, Appellant’s argument in support of his weight claim is inapt, and does

not merit relief.

      In his two remaining claims, Appellant challenges an evidentiary ruling

by the trial court, and the discretionary aspects of his sentence. Appellant

did not raise these claims in his Pa.R.A.P 1925(b) statement. Thus, because

the trial court did not address the merits of the claims, and the issues are

being raised for the first time on appeal, they are waived. See generally,

Pa.R.A.P. 302(a); Commonwealth v. Rolan, 964 A.2d 398 (Pa. Super.

2008).

      In sum, because Appellant’s issues are either meritless or not

preserved for appeal, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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