J-S71029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONELL FORNEY                              :
                                               :
                       Appellant               :   No. 3612 EDA 2017

            Appeal from the Judgment of Sentence December 4, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006509-2016


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                                  FILED MAY 16, 2019

        Appellant, Ronell Forney, appeals from the Judgment of Sentence

entered in the Philadelphia County Court of Common Pleas after a jury found

him guilty of First-Degree Murder and Carrying a Firearm without a License.

Appellant challenges the weight of evidence and the denial of his Motion for a

Mistrial based on an alleged Brady1 violation. We affirm.

        We glean the following factual and procedural history from the certified

record. In August of 2007, Appellant, Terrel Davis (“decedent”), and Reginald

Smith sold drugs in the Kensington and Allegheny area of Philadelphia for Eric

Roberts. After Roberts learned from his sister, Erica Morley, that the decedent

had stolen drugs and money from a safe in their home, Roberts directed

Appellant to “get rid” of decedent. At approximately 3:00 AM on September

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1   Brady v. Maryland, 373 U.S. 83 (1963).
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1, 2007, Appellant shot and killed decedent on the 3100 block of North E

Street, near a Chinese store.

      Sharde Murrell, who was in the Chinese store at the time, and Tiara

Murrell, who was in her home at the time, heard the gun shots.          Police

investigators interviewed them on September 1, 2007. On October 3, 2007,

Detective Theodore Hagan, the detective assigned to the case, created a photo

array, which included Appellant’s photograph. He showed this photo array to

Sharde and Tiara Murrell in hopes of obtaining a positive identification of

decedent’s killer.     However, neither Sharde nor Tiara Murrell made an

identification. Because no one identified the shooter, no arrests were made

at that time.

      In 2016, Reginald Smith agreed to provide information of any known

crimes in exchange for a possible reduced sentence in his own unrelated

criminal case.   According to Smith, at approximately 3:00 AM on September

1, 2007, he left the Chinese store with a female to head to a house at 3150

North E Street. Before he entered the house, Roberts yelled to him to stay on

the block. He then spotted decedent walking towards Appellant and Roberts,

saw Roberts hand Appellant a gun, and watched as Appellant shot decedent

three to four times.

      Consequently, the Commonwealth charged Appellant with First-Degree

Murder, Criminal Conspiracy, Carrying a Firearm without a License, Carrying

a Firearm on Public Streets or Public Property in Philadelphia, and Possession




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of an Instrument of Crime.2 A jury trial commenced on September 11, 2017,

after which the jury found Appellant guilty of First-Degree Murder and Carrying

a Firearm without a License.         On December 4, 2017, the court sentenced

Appellant to life imprisonment without the possibility of parole.

       Appellant filed a Post-Sentence Motion challenging the weight and

sufficiency of evidence, and alleging a Brady violation by the Commonwealth.

On December 28, 2017, the Court denied the Post-Sentence Motion without a

hearing.    Appellant timely appealed.3          Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       Appellant presents the following questions for our review:

       1. Did the Trial Court err when it failed to grant a mistrial based
          upon the [Appellant]’s well placed objection to a Brady
          violation wherein the Commonwealth had failed to provide
          evidence of two photo arrays in which [Appellant] was not
          identified?

       2. Is [Appellant] entitled to a new trial whereas here the verdict
          was against the greater weight of the evidence?

Appellant’s Br. at 4.




____________________________________________


218 Pa.C.S. § 2502; 18 Pa.C.S. § 903(c); 18 Pa.C.S. § 6106(a)(1); 18 Pa.
C.S. § 8108; and 18 Pa.C.S. § 907(a), respectively.

3 Appellant had prematurely filed a Notice of Appeal, which this Court initially
dismissed on February 1, 2018 for failure to comply with Pa.R.A.P. 3517.
Appellant later filed an Application to Reinstate Appeal. We granted the
Application, vacated the February 1, 2018 Dismissal Order, and reinstated the
instant appeal.

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Brady Violation

      Appellant asserts that the trial court abused its discretion in refusing to

grant a mistrial because the Commonwealth withheld favorable information,

i.e., that witnesses Sharde Murrell and Tiara Murrell had been shown photo

arrays after the September 1, 2007 murder and neither witness identified

Appellant as the perpetrator. Id. at 16-19. Appellant argues that he could

have used this information to confront the sisters about their failure to identify

Appellant at a point in time close to the murder in support of his claim that he

did not murder decedent. Id.

      We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013).                A

mistrial is appropriate “only where the incident upon which the motion is based

is of such a nature that its unavoidable effect is to deprive the defendant of a

fair trial by preventing the jury from weighing and rendering a true

verdict.” Id. at 728 (quotation marks and citation omitted).

      Brady provides that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.”      373 U.S. at 87; see also Pa.R.Crim.P.

573(B)(1)(a) (pertaining to the mandatory disclosure of evidence favorable to

the accused which is material to guilt or to punishment of the accused, and is

within the possession or control of the prosecutor).


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      To 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)   prejudice

ensued.” Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013).

      In order to demonstrate prejudice, “the evidence suppressed must have

been material to guilt or punishment.” Commonwealth v. Gibson, 951 A.2d

1110, 1126 (Pa. 2008). Evidence is material under Brady when there is a

reasonable probability that, had the evidence been disclosed, the result of the

trial would have been different. Id. at 1127 (citations omitted). “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.” Commonwealth v. McGill, 832 A.2d

1014, 1019 (Pa. 2003) (quoting U.S. v. Agurs, 427 U.S. 97, 109–10 (1976)).

      Detective Hagan recounted at trial that no arrests had been made in

connection with the murder in 2007 because no one had identified the shooter

at that time. On October 2, 2007, he interviewed Marvella Jackson, Morley

and Roberts’s mother, after she had a verbal altercation with Appellant. He

subsequently created a photo array on October 3, 2007, which included a

photograph of Appellant.    He explained that he showed this array to only

Sharde and Tiara Murrell because they were the only witnesses who did not




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know Appellant. He further testified that neither sister identified decedent’s

shooter from the photo array. Trial Ct. Op. at 11-15.

       At side bar, Appellant’s counsel informed the court that he never

received that photo array in discovery, and moved for a mistrial. He argued

that he should have had the opportunity to interview the witnesses with the

photo array and to question them on the witness stand about the array and

their lack of identification. The trial court found that the Commonwealth’s

failure to turn over the photo array and non-identification information was

inappropriate. However, it determined that Appellant did not suffer prejudice

and denied the Motion for Mistrial. Id.

       We agree that the Commonwealth should have disclosed the evidence

at issue to Appellant prior to trial. However, the trial court properly found that

there is not a reasonable probability that had the evidence been disclosed, the

result of the trial would have been different.4

       The trial court found overwhelming evidence of Appellant’s guilt. Id. at

11-15. The court emphasized that three witnesses testified that Appellant

confessed to killing decedent. Id. at 15-16. In addition, Smith gave eye-

witness testimony. Id. at 15.

____________________________________________


4 We note that that the trial court also found that the evidence at issue was
not exculpatory nor could it used for impeachment purposes. Trial Ct. Op. at
14-15. We need not address this analysis, as we agree with the court’s finding
that Appellant did not demonstrate prejudice under Brady.




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       We agree with the trial court that Appellant has not proven the prejudice

element of the Brady test. Accordingly, the trial court properly exercised its

discretion in denying Appellant’s Motion for a Mistrial.5

Weight of Evidence

       Appellant argues he is entitled to a new trial because the verdict shocks

one’s sense of justice.          Appellant’s Br. at 19.     He asserts that the

Commonwealth’s main witness, Reginald Smith, was a tainted witness,

because he, inter alia, received a plea agreement for a reduced sentence,

failed to contact police at the time of the murder, had a juvenile bench

warrant, had been charged with sex trafficking, and had been involved in

selling drugs. Id. at 20. Appellant further asserts the testimony offered by

the Commonwealth focused more on the fact that Appellant was quarreling

with friends and associates than the fact that it was Appellant who committed

the homicide in question. Id. at 21. These issues challenge the weight of the

evidence.


____________________________________________


5 We note that in the Statement of Questions Involved section of his Appellate
Brief, Appellant states that “the Commonwealth had failed to provide evidence
of two photo arrays in which the Defendant was not identified.” Appellant’s
Br. at 3 (emphasis added). However, in his brief, the argument itself refers
to only the October 3, 2007 photo array, and is based on Sharde and Tiara
Murrell’s non-identification. See id. at 16-19. Thus, to the extent Appellant
is claiming that the trial court erred by failing to grant a mistrial based on the
April 24, 2009 photo array, this argument is waived.               See Pa.R.A.P.
1925(b)(4) (stating that claims not included in the Statement of Errors
Complained of on Appeal nor discussed with sufficient detail to identify
pertinent issue are waived).


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      Appellate review of a weight claim is a review of the trial court’s denial

of the weight challenge raised in the post-sentence motion; this Court does

not consider the underlying question of whether the verdict is against

the weight of the evidence. Commonwealth v. Talbert, 129 A.3d 536, 545-

46 (Pa. Super. 2015). “The weight of the evidence is exclusively for the finder

of fact, who is free to believe all, none[,] or some of the evidence and to

determine the credibility of the witnesses.” Id. at 545 (quotation marks and

citation omitted). It is well-settled that we cannot substitute our judgment

for that of the trier of fact. Id. at 546.

       To   prevail    on   a    challenge   to   the weight of   the evidence,

the evidence must be “so tenuous, vague and uncertain that the verdict

shocks the conscience of the court.” Id. (internal quotation marks and

citation omitted).    Our Supreme Court has made clear, reversal is only

appropriate “where the facts and inferences disclose a palpable abuse of

discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations omitted; emphasis in original).

      In denying Appellant’s weight of evidence claim, the court carefully

evaluated the record. The court observed that the jury heard and weighed

Smith’s testimony, including evidence related to his drug dealing, current

charges of sex trafficking, plea agreement, and juvenile record. Trial Ct. Op.

at 5, 18 & n.4.       The trial court also recounted testimony from various

individuals related to disputes between decedent and Roberts about


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decedent’s alleged stealing from Roberts, noting that the jury was free to infer

that this contention led to decedent’s murder. Id. at 6, 9, 119, 122-23

      Appellant essentially asks us to reassess the credibility determinations

made by the jury and reweigh the testimony and evidence presented at trial.

We cannot and will not do so. Our review of the record indicates that the

evidence is not tenuous, vague, or uncertain, and the verdict was not so

contrary as to shock the court’s conscience. We discern no abuse of discretion

in the trial court’s denial of Appellant’s weight challenge.

      Finding no merit to either of Appellant’s issues, we affirm his Judgment

of Sentence.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/19




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