J -S26023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                     Appellee

                v.

 JERMAINE HENDERSON

                     Appellant                     No. 2128 EDA 2018
       Appeal from the Judgment of Sentence Entered March 27, 2018
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000761-2017

BEFORE:    PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                          FILED JULY 18, 2019

      Appellant, Jermaine Henderson, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for first -degree murder, attempted murder, aggravated

assault, possessing an instrument of crime, and carrying a firearm without a

license.' We affirm.

      In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. Procedurally, we add Appellant filed a timely notice of appeal

on July 23, 2018. On July 25, 2018, the court ordered Appellant to file a



' 18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a), 907(a), and 6106(a)(1),
respectively.



   Retired Senior Judge assigned to the Superior Court.
J -S26023-19


concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).

Appellant complied on September 18, 2018.2

      Appellant raises the following issues for our review:

         WAS THE JURY'S VERDICT AGAINST THE WEIGHT OF THE
         EVIDENCE IN LIGHT OF THE MOTIVE OF WITNESS TAUFEEQ
         ZIYAD TO LIE AND THE OBVIOUS CONFLICTS IN THE
         TESTIMONY OF WITNESSES [VICTIM 2] AND STEPHANIE
         BRUNSON?

         DID THE [TRIAL] COURT ERR IN FINDING THAT A CD OF
         [APPELLANT]'S PRISON CALLS HAD BEEN PROPERLY
         AUTHENTICATED?

(Appellant's Brief at 3).

      The following principles apply to a weight of the evidence claim:

            The weight of the evidence is exclusively for the finder
             of fact who is free to believe all, part, or none of the
             evidence and to determine the credibility of the
            witnesses.  An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the...verdict if it is so contrary to the
             evidence as to shock one's sense of justice.

         Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
         666, 672-73 (1999). Moreover, where the trial court has
         ruled on the weight claim below, an appellate court's role is
         not to consider the underlying question of whether the
         verdict is against the weight of the evidence. Rather,
         appellate review is limited to whether the trial court palpably
         abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408


2 Appellant's Rule 1925(b) statement was not timely filed. Nevertheless, we
decline to waive Appellant's issues because the trial court received the
statement and addressed Appellant's issues in a written opinion. See
Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc)
(allowing for immediate review under these circumstances).
                                      -2
J -S26023-19


(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

      "The admissibility of evidence is at the discretion of the trial court and

only a showing of an abuse of that discretion, and resulting prejudice,
constitutes reversible error." Commonwealth v. Ballard, 622 Pa. 177, 197-

98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014).

      The term "discretion" imports the exercise of judgment, wisdom
      and skill so as to reach a dispassionate conclusion, within the
      framework of the law, and is not exercised for the purpose of
      giving effect to the will of the judge. Discretion must be exercised
      on the foundation of reason, as opposed to prejudice, personal
      motivations, caprice or arbitrary actions. 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 the record shows that the
      action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal

denied, 624 Pa. 672, 85 A.3d 482 (2014). "To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party."     Commonwealth v. Lopez, 57 A.3d 74, 81
(Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).

      After a thorough review of the record, the briefs of the parties, the
applicable law, and the well -reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant's issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed October 16, 2018, at 3-8) (finding: (1) in his

                                     -3-
J -S26023-19


police statement, Taufeeq Ziyad said he was with Appellant on day of shooting

and heard Appellant and his associate make statements implicating Appellant

in shooting of Victims; Mr. Ziyad also explained Appellant shot Victim 1        in

retaliation for killing Appellant's friend, "Q -Ball"; Mr. Ziyad provided police

statement while in custody for unrelated shooting, in which police recovered

gun that Mr. Ziyad believed was same gun Appellant used to kill Victim 1; at

Appellant's trial, Mr. Ziyad admitted he understood he could have been

suspect in Victim l's murder if it was same gun; Mr. Ziyad recanted his police

statement at trial, but jury was free to believe all, part, or none of Mr. Ziyad's

police statement and recantation; furthermore, Commonwealth presented

evidence and testimony corroborating Mr. Ziyad's police statement; regarding

alleged conflict in testimony of Victim 2 and Stephanie Brunson, Appellant

does not specify how their testimony conflicted; nevertheless, Ms. Brunson's

testimony did not contradict Victim 2's account; both Ms. Brunson and Victim

2 testified Victims were holding hands and facing Appellant when shooting

began, and Victims ran to laundromat for cover; evidence fully supported

jury's verdict; (2)   in   order to authenticate CD containing recording of
Appellant's telephone call, Commonwealth presented testimony of John
Wright, who was responsible for monitoring phones at prison where Appellant

was incarcerated; Mr. Wright explained prison assigned each inmate unique

pin number, which inmate must enter each time inmate places call; Mr. Wright

confirmed phone call at issue was placed with Appellant's pin number; Mr.


                                      -4
J -S26023-19


Wright also confirmed disk containing recording was identified with Appellant's

inmate number; furthermore, content of recorded phone call identified
Appellant as caller). Accordingly, we affirm based on the court's opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Jseph D. Seletyn,
Prothonotary


Date: 7/18/19




                                     -5
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                                                                                                    FILED
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              COMMONWEALTH OF                                                                  CP-51-CR-0000761-2017
              PENNSYLVANIA
                                                                                                                               .   .   . ..
                       v.                                                               CP,S1•CR·Oooo781 ·2017 Con»n. v: HENDERSON. JERMAINE
                                                                                                              ()pnicl't                •




                                                                                                I
              JERMAINE HENDERSON

                                                               OPINION                       II I IllII 1111111111111111
                                                                               \.   .                  8176902441
                                                                                                         ···--· ------·
              BRONSON, J.                                                                      October 16, 2018



              On March 27, 2018, following a jury trial before this Court, defendant Jermaine

     Henderson was convicted of one count each of murder of the first degree (18 Pa.C.S. § 2502(a))

     (victim Derek White), attempted murder (18 Pa.C.S. §§ 90 I (a), 2502) (victim                                        K.J.0•..... ), 1
     carrying a firearm without a license (18 Pa.C.S. § 6106(a)(l )), and possession of an instrument

     of crime ("PIC") (18 Pa.C.S. § 907(a)). The Court immediately imposed the mandatory sentence

     of life in prison for the murder charge ( 18 Pa.C.S. § 1102(a)( 1 )), with concurrent terms of IO to

     20 years imprisonment for attempted murder/ 3 Y:i to 7 years imprisonment for carrying a

     firearm without a license, and I to 5 years imprisonment for PIC, for an aggregate sentence of

     life in prison. The sentence was lo run consecutively to the mandatory life sentence defendant

     was already serving for an unrelated murder conviction. Defendant filed post-sentence motions,

     which the Court denied on July 12, 2018.


     I Defendant was also convicted of the aggravated assault (18 Pa.C.S. § 2702(a)) of victim J<.W. \ but no
     sentence was entered on that charge due to merger with the attempted murder conviction.
     2 Defendant had
                      previously been convicted of aggravated assault, graded as a felony of the first degree, in 2003,
     which qualified as a conviction of a prior crime of violence under 42 Pa.C.S. § 9714. N.T. J/27/18 at 18· I 9.
     Accordingly, his attempted murder conviction in the instant case was a "second strike" and carried a mandatory
     sentence of IO to 20 years incarceration.
         Defendant has now appealed from the judgment of sentence entered by the Court on the

grounds that: I) the verdict was against the weight of the evidence; and 2) the Court erred in

finding that a CD recording of defendant's prison calls had been properly authenticated.

Defendant's Concise Statement of Errors Complained of on Appeal ("Statement of Errors") at ii�

 1-2. For the reasons set forth below, defendant's claims are without merit and the judgment of

sentence should be affirmed.

                                  I. FACTUAL BACKGROUND

         At trial, the Commonwealth presented the testimony of Philadelphia police officers .John

Smith, Leslie Cain, and John Cannon, Philadelphia police detective Donald Marano,

Philadelphia deputy chief medical examiner Dr. Albert Chu, Philadelphia deputy sheriff Martin

Samuels, SCI Graterford captain David Masceltino, John Wright of SCI Graterford's Internal

Security Department, and Michelle Gerald, .;     \( · W.   ;, Taufeeq Ziyad, Ebony Cook, and
Stephanie Brunson. Defendant presented no evidence. Viewed in the light most favorable to the

Commonwealth as the verdict winner, the evidence established the following.

        On February 11, 2005> the victim, Derek White, was walking his daughter,            K, W.
home from her daycare located in the Wilson Park project in Philadelphia.3 N.T. 3/22/18 at 17�

19. As the pair was walking through the parking lot of K Laundromat, located at the intersection

of 27111 and Snyder Streets, a man behind them yelled White's nickname, Scooter. N.T. 3/22/18

at 19, 21-22; 3/26/18 at 17, 75. White and K,W,immediately turned around, and� .W.noticed

that her father grew panicked. N.T. 3/22/18 at 19, 28. Suddenly, multiple shots were fired in

their direction. N.T. 3/22/18 at 19. While White was hit by a bullet, he managed to pick up his

daughter in order to run for cover in the laundromat. N .T. 3/22/18 at 20, 23; 3/26/18 at 35. Once


                                         C"h,°,}a ViC1•JVl\will be referred to throughout this Opinion �s
  K.\,J ..
                                                  2
inside the laundromat, White collapsed to the floor, and a bystander assisted K!W· .. N.T. 3/22/18

at 24; 33.

        Philadelphia police officers responded to the scene upon the report of a shot male. N.T.

3/20/18 at l 05. When they arrived, they discovered that   K. W- had also gotten shot, and
therefore, transported her in a police wagon to Children's Hospital of Philadelphia, where she

was treated for a gunshot wound to the foot. N.T. 3/22/18 at 12; 3/26/18 at 127. Paramedics

ultimately transported White to the Hospital of the University of Pennsylvania, where he was

pronounced dead. N.T. 3/20/18 at 90, 106. The medical examiner determined that White's

cause of death was a single gunshot wound to the left buttock. N.T. 3/20118 at 91.

        Philadelphia police officers and detectives then conducted an investigation of the

shooting. N.T. 3/20/18 at 104-33; 3/22/18 at 159-80; 3/23/18 at 20-51. During the course of

their investigation, Stephanie Brunson positively identified defendant as the shooter. N.T.

3/26/18 at 51; Commonwealth Exhibit C·30 (Stephanie Brunson's police statement).

Additionally, Taufeeq Ziyad informed police that defendant confessed to him that he committed

the shooting, while Ebony Smith reported to police that approximately three days after the

shooting, she overheard defendant telling someone that he "finally got that motherfucker." N.T.

3/22/18 at 75·76; 3/23/18 at 74.

                                         11. DISCUSSION

        A. Weight ofthe Evidence

        Defendant first claims that his conviction was against the weight of the evidence, "in

light of the motive of witness Tafiq [sic] Ziyad to lie and the obvious conflicts in the testimony

of witnesses   K. W.      and Stephanie Brunson." Statement of Errors at� 1. This claim is

without merit.


                                                 3
             It is well-established that a new trial may only be granted by the trial court where the

verdict was so contrary to the weight of the evidence as to             ,a shock   one's sense of justice.!"

Commonwealth v. Rossetti, 863 A.2d 1185, 1 I 91 (Pa. Super. 2004), appeal denied, 878 A.2d 864

(Pa. 2005) (quoting Commonwealth v. Hunter, 554 A.2d 550, 555) (Pa. Super. 1989)).

Moreover, credibility determinations are solely within the province of the fact-finder, and "[a]n

appellate court cannot substitute its judgment for that of the finder of fact." Commonwealth v.

Taylor, 63 A.3d 327, 330 (Pa. Super. 2013) (internal quotation omitted). In considering a claim

that 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." Id

             Here, defendant offers two speci fie arguments in support of his weight of the evidence

claim. Defendant first avers that witness Taufeeq Ziyad had a motive to lie. Statement of Errors

at   ir 1.   At trial, the Commonwealth presented Ziyad's police statement, in which he told police

that on the day of the shooting, he and defendant were hanging out with some friends at a home

on Bailey Terrace." N.T. 3/22/18 at 75. Eventually, defendant and one of the friends, Rasheed,

left the home; however, defendant soon reentered and told the group, "I seen him." Id. He then

grabbed a chrome revolver from underneath the couch and left. id. A few minutes later, he

returned and said,"[ got him." Id. Rasheed also returned and told defendant, "I think you killed

that little girl." Id. After hearing that, defendant planned to turn himself in. Id I-Ie changed his

mind, however, once he received word that the little girl had only gotten shot in the foot. N.T.

3/22/18 at 75-76. Moreover, Ziyad explained to police that defendant shot White in retaliation

for White killing defendant's close friend, "Q-ball", one year prior. N.T. 3/22/18 at 101-02.


� Ziyad's statement was admissible for its truth as a prior inconsistent statement that was signed and adopted by the
declarant, See Pa.R.E. 803. l(l)(b).

                                                          4
        It is true that Ziyad gave his statement to police while he was in custody for an unrelated

shooting. It is also true that in that unrelated shooting, police had recovered a gun that Ziyad

believed was the same gun that defendant used to kill White.5 N.T. 3/22/18 at 146-47, 164. At

trial, Ziyad admitted that he understood that he could have been a suspect in White's murder if

that gun was indeed determined to be the gun used in White's murder. N.T. 3/22/18 at 148.

However, at trial, Ziyad recanted his police statement that incriminated defendant and instead

claimed that police forced him to say "everything." N.T. 3/22/18 at 74. Nevertheless, the jury

was free to evaluate both Ziyad' s statement as well as his testimony at trial recanting the

statement, and was "free to believe all, part, or none of the evidence." Commonwealth v.

Hanible, 836 A.2d 36, 39 (Pa. 2003).

        Moreover, the Commonwealth presented additional evidence that strongly corroborated

Ziyad' s police statement. Stephanie Brunson testified that at the time of the shooting, she was

walking through the laundrornat's parking lot when she saw defendant fire multiple shots at

White and \(.\,J., and then witnessed defendant run by her and towards the projects. N.T.

3/26/18 at 23-24, 40. She also testified that as defendant fled the scene, she saw him hand over

the murder weapon to another male. N.T. 3/26/18 at 40. In addition, the Commonwealth

presented Ebony Cook's police statement, in which she recounted hearing defendant tell

someone a few days after the shooting that he "finally got that motherfucker." N .T. 3/23/18 at

74. Cook also told police that defendant shot White because defendant "was a friend of Q-

Ball's." N.T. 3/23/18 at 79. While like Ziyad, Cook recanted her police statement, the jury was

again free to evaluate both Cook's police statement and her recantation. Hanible, 836 A.2d at


5 Police <lid recover two firearms, a 9 mm Rugar handgun and a 9 mm Star handgun, on the date of Ziyad's arrest,
which were cross-checked with the ballistics from the murder. N.T. 3/23/18 at 41-43, 45. While police were able to
conclude to a reasonable degree of scientific certainty that the Rugar handgun was not the murder weapon, the
results were inconclusive as to the Star handgun. N.T. 3/23/18 at 41-43.

                                                         5
39. Moreover, such recantations are "notoriously unreliable." Commonwealth v. Johnson, 966

A.2d 523, 54 l (Pa. 2009) (internal quotations omitted).

        Defendant next claims that the verdict was against the weight of the evidence due to "the

obvious conflicts in the testimony of witnesses i         K.w. : and Stephanie Brunson."         Statement

of Errors at� 1. While defendant does not specify how          K. W.: and   Brunson' s testimonies

conflicted, at trial during closing arguments, trial counsel argued that eyewitness Brunson' s

testimony and identification of defendant were not credible because           K.W,   testified that she and

her father turned around to face the shooter after the shooter yelled White's nickname, "which

was"[ e]xactly the opposite of what Stephanie Brunson describe[d] ... " N. T. 3/26/18 at 152.

        At trial,   .K.�'\L testified that she and her father were walking through the parking lot of the
laundromat when they heard someone behind them yell White's nickname, causing them to turn

around, where they were immediately fired upon. N.T. 3/22/18 at 19. Contrary to trial counsel's

assertion during closing arguments, Brunson' s testimony did not contradict I( W.1' s account, as

 Brunson also testified that    K.Jit and White were facing the shooter when the shots began.         N.T.

3/26/18 at 18, 28, 31-32. Moreover, both witnesses recalled that            K.w. and White were holding
hands when the shooting began, and that the pair ran to the laundromat for cover. N.T. 3/22/18

at 20-21; 3/26/18 at 18.

        In addition, as discussed above, the Commonwealth also presented Ziyacl'lnd Cook's

police statements which corroborated Brunson's testimony and identification of defendant.

 Moreover, police recovered seven fired cartridge casings from the scene of the shooting and

 determined that they were all fired from the same firearm, corroborating Brunson's account that

· there was single shooter. N.T. 3/23/18 at 37; 3/26/18 at 18. All of this was compelling evidence




                                                      6
that fully supported the jury's verdict. For that reason, the Court did not abuse its discretion in

denying defendant's motion for a new trial.

       B. Authentication of CD Containing Defendant's Prison Call
                                          '
       Defendant next claims that the Court "erred in finding that a CD of defendant's prison

calls had been properly authenticated." Statement of Errors at i12. This claim is without merit.

        Under Rule 90 J. of the Pennsylvania Rules of Evidence, "[t]o satisfy the requirement of

authenticating or identifying an item of evidence, the proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims it is." Pa.R.E. 90l(a).

Specifically, "[i]t is clear. .. that when seeking to introduce testimony as lo the content of a

telephone conversation, the identity of the caller may be established by circumstantial evidence."

Commonwealth v. Stewart, 450 A.2d 732, 733 (Pa. Super. 1982). Such circumstantial evidence

may include the content of the telephone conversation itself. Pa.R.E. 901, Comment (citing

Bonavitacola v. Cluver, 619 A.2d 1363 (Pa. Super. 1993)).

       The CD here at issue was a recording of a telephone call placed by defendant from state

prison while awaiting trial in the instant case. To authenticate the recording, the Commonwealth

presented the testimony of John Wright, who was responsible for monitoring the phones at SCI

Graterford, the institution where defendant was housed at the time of the phone call. N.T.

3/26/ J 8 at I 02-04. Wright explained that for an inmate to be able to make a phone call, the

inmate is first assigned a unique pin number, which must be entered each time a call is placed.

N.T. 3/26/18 at 104, 112. That pin number is uniquely associated with the inmate's prison

inmate number. N.T. 3/26/18 at I 12. Regarding the recording at issue, Wright confirmed that

the phone call was placed from defendant's pin number. N.T. 3/26/18 at l 14-15. Finally,




                                                   7
Wright confirmed that the disk containing the recording was identified by defendant's inmate

number, NF0417. N.T. 3/26/18 at 117.

       Defendant's identity was not only established through the above described pin system,

but also through the content of the recorded phone call itself. The phone call occurred on March

8, 2018, and the caller told the recipient on the line, "I start next Monday ... Ready to go, you

heard me?" Commonwealth Exhibit C-55 (recording of prison call). Defendant's trial did

indeed start that next Monday, March 19, 2018. Moreover, the caller discussed a "rat" who was

housed on the same block as defendant and expressed his hope that "they put him on." Id. The

Commonwealth presented the testimony of Captain David Mascellino of SCI Grater ford, who

confirmed that defendant and Commonwealth witness Taufeeq Ziyad were both housed on the

Delta block at Graterford during that period. N.T. 3/26/18 at 91-94. All of this was sufficient

evidence under Pa.R.E. 901 for the Court Lo allow the CD to be played for the jury.

                                       III. CONCLUSION

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



                                                               BY THE COURT:




                                                  8
Commonwealth v. Jermaine Henderson                                  CP-51-CR-0000761-2017
Type of Order: 1925(a) Opinion

                                     PROOF OF SERVICE


1 hereby certify that 1 am this day serving the foregoing Court Order upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:


Defense Counsel/Party:
                              James F. Berardinelli, Esquire
                              1600 Locust Street
                              Philadelphia, PA 19102

Type of Service:      ( ) Personal (X) First Class Mail () Other, please specify:


District Attorney:
                              Lawrence Goode, Esquire
                              Interim Supervisor, Appeals Unit
                              Office of the District Attorney
                              Three South Penn Square
                              Philadelphia, PA 19107-3499

Type of Service       () Personal ( ) First Class Mail (X) Other, please specify: Interoffice


Additional Counsel/Party:

                              Joseph D. Seletyn, Esquire
                              Prothonotary
                              Office of the Pro tho notary - Superior Court
                              530 Walnut Street, Suite 315
                              Philadelphia, PA 19106

Type of Service:      () Personal () First Class Mail () Other, please specify:



Dated: October 16, 2018
