J-A27020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEROME KING                                :
                                               :
                       Appellant               :   No. 164 EDA 2019

        Appeal from the Judgment of Sentence Entered November 9, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009432-2017


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                           FILED DECEMBER 16, 2019

        Appellant, Jerome King, appeals from the judgment of sentence

following his conviction by a jury of first-degree murder, firearms not to be

carried without a license, carrying firearms in Philadelphia, and possession of

an instrument of crime (“PIC”).1 We affirm.

        An information was filed on November 7, 2017, and trial occurred

November 5–9, 2018. Following Appellant’s convictions of the above crimes,

the trial court sentenced Appellant on November 9, 2018, to life in prison for

murder and did not impose further penalty on the remaining convictions.

Appellant filed a post-sentence motion for a new trial assailing the weight of


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(a), 6106(a)(1), 6108, and 907, respectively.
J-A27020-19


the evidence on November 13, 2018, which the trial court denied on December

26, 2018. Appellant filed this timely appeal. Both Appellant and the trial court

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

      The facts of the crime are as follows.        Philadelphia Police Officer

Lacarmela Fortune responded to a radio call on June 20, 2017, at 10:36 a.m.

that a male had been shot at the intersection of 29th Street and Cecil B. Moore

Avenue. N.T., 11/6/18, at 62–63. When Officer Fortune arrived, she found a

burgundy car smashed into a black car, which crashed into a grey car. Id. at

65–66. An unconscious man, later identified as Marvin Brunson (“Victim”),

was slumped over on the front driver’s seat of the burgundy car, with his head

leaning “almost out the [driver’s] window.” Id. at 67–68. There were no

other occupants in the automobile. Id. at 65, 68. Victim had blood on his

chest, and he still had his foot on the gas with the vehicle “revving.” Id. at

68. A second police car “pulled up right away,” and Officer Fortune testified,

“[W]e opened the door. We got the male out of the vehicle and put him into

the other unit’s vehicle and they took him to the hospital.” Id. at 67.

      Victim was pronounced dead at 10:49 a.m. at Hahnemann Hospital.

N.T., 11/6/18, at 89, 96. Dr. Khalil Wardak, Philadelphia Associate Medical

Examiner, testified Victim had a “gunshot wound to the right side of the chest,

a gunshot wound to the upper posterior shoulder, back of the shoulder, a

gunshot wound to the back of the heart, a gunshot wound to the back of the




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forearm, and a gunshot wound to the left forearm.” N.T., 11/8/18, at 28. Dr.

Wardak determined that the gunshot wound to the chest was fatal. Id. at 29.

       Philadelphia Police Officer Christopher Reed of the Crime Scene Unit

testified that he arrived at the scene at 11:45 a.m. on June 20, 2017. N.T.,

11/6/18, at 180. Officer Reed collected six .45 caliber cartridge casings; three

casings were on the street, and three were in Victim’s vehicle. Id. at 186–

188, 196. Police Officer John Cannon of the Philadelphia Police Department’s

Firearms Identification Unit testified that all six casings were fired from the

same .45 caliber semiautomatic weapon. N.T., 11/7/18, at 169. Two bullets,

also .45 caliber, which were recovered from Victim’s body, were each fired

from the same weapon, but the firearms expert could not determine whether

they were fired from the same firearm as the casings.2 Id. at 173–174, 178.

In addition, police utilized trajectory rods to determine the path of the bullets.

Id. at 189. Police were able to determine that the direction of travel of the

bullets was “from the rear of the vehicle on the passenger’s side through to

the driver’s seat.” Id.

       Police interviewed Appellant’s former girlfriend, Tyera Chapman, three

months after the murder and viewed digital surveillance videos from the area.

N.T., 11/6/18, at 148–175; 11/7/18, at 25, 43–45. Philadelphia Detective



____________________________________________


2  “The only way we can make an association between” bullets and casings is
“if we have [the] firearm.” N.T., 11/7/18, at 174. Police did not recover the
murder weapon.

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Billy Golphin testified that during the interview, Ms. Chapman initially denied

knowing anything about the murder but never told police she wanted to leave.

N.T., 11/8/18, at 88–89, 97. After thirty or forty minutes, Ms. Chapman gave

a videotaped statement.      Id. at 61–62.      Detective Golphin read the

memorandum he wrote following his interview of Ms. Chapman:

      On 9/14/2017, Tyera Chapman, 27-year-old black female, was
      brought into the homicide unit—

                                    * * *

      . . . after members of the homicide fugitive unit and U.S. Marshals
      conducted a search of her residence and attempted to apprehend
      homicide fugitive [Appellant]. Chapman was placed in Interview
      Room B and Detective Tolliver and Golphin spoke with her in
      reference to [Appellant].     Chapman admitted that she and
      [Appellant] were in a romantic relationship and that she was
      aware that [Appellant] was on the run from the police.

            Chapman was asked if [Appellant] told her what he was on
      the run from. She stated he told her that he left the store at 28th
      and Cecil B. Moore Avenue and someone . . . wearing the same
      clothing he was wearing killed somebody at 29th Street. She then
      stated that [Appellant] told her some girl called this guy and told
      him the boy’s been looking—the boy told him the boy he’s been
      looking for was on the corner, and the guy tied his hoody tight
      and ran up and shot the guy.

            Detective Golphin told Chapman the explanation didn’t
      make sense and that [Appellant] called Chapman shortly before
      and after the homicide. Chapman stated that she didn’t want to
      be a rat and she wasn’t going to sign her name to anything. She
      said he did it. Chapman stated [Appellant]—

      The Court: Wait. “She then said.”

      [Detective Golphin]: He did it. Chapman stated [Appellant] told
      her someone told him the boy he had a problem with was on the
      corner. [Appellant] told her he tied his hoody up tight and ran
      upon him and killed him.

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          "Detective Golphin and Chapman—asked Chapman if she
     would consent to be videotaped and she agreed.

N.T., 11/8/18, at 110–111.     Ms. Chapman refused to sign the standard

document “created after someone is interviewed on video” because “[s]he

didn’t want to be involved” and “didn’t want to be known as a rat.” Id. at 60–

62. The videotaped statement was played for the jury. Id. at 65.

     Police also examined video surveillance from the crime scene. The trial

court summarized the video compilation, which was submitted with the trial

court’s Pa.R.A.P. 1925(a) opinion and was shown to the jury, as follows:

           The parties stipulated that Detective Thorsten Lucke was an
     expert in the field of recovery and analysis of digital surveillance
     video. (November 8, 2018, 24). Detective Lucke testified that he
     trained at the Federal Bureau of lnvestigation Forensic Video
     Image Audio Analysis Unit, in Quantico, VA. He processed more
     than 1,000 crime scenes recovering surveillance video as well as
     processing, analyzing these videos for court presentations and
     news releases. Over the previous six or seven years, he trained
     federal, state and local agents.

                                   * * *

     . . . . Surveillance tapes were recovered from three commercial
     businesses, one apartment building, a police camera, and a public
     transit bus. (N.T. November 7, 2018, 28).

                                   * * *

     . . . . Detective Lucke created a “video compilation” from different
     angles, locations, times and systems. Generally, the scenes are
     shown in chronological order. (N.T. November 7, 2018, 30).

                                   * * *

          At 10:20 a.m., the camera at 2800 Cecil B. Moore Avenue
     shows a black male exit a building and place something in the

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     garbage. The male is wearing dark jeans gathered at the ankle,
     a white T-shirt with a colorful logo, a gray hoodie draped over his
     shoulder, black sneakers with white trim, and a lanyard hanging
     out of his pocket. (M17-146 Surveillance Video Compilation,
     1:30). Multiple cameras capture the male walking north on 28th
     Street, making a left on Cecil B. Moore Ave, and then a right onto
     Newkirk Street. (2:50).

           At 10:24 a.m., the male can be seen placing an item onto
     the roof of a parked vehicle on Newkirk Street. (9:05). At 10:26
     a.m., the male is seen again on Newkirk Street[] walking back
     toward Cecil B. Moore Avenue, [and] the male no longer has the
     gray hoodie draped over his shoulder. (9:37). Cameras pick the
     male up on Cecil B. Moore Avenue at 10:27 a.m., the lanyard that
     was previously hanging out of his pocket is now around his neck.
     (11:14).

           From 10:27 until 10:29 a.m., surveillance cameras inside
     the supermarket located at 1700 North 28th Street (at Cecil B.
     Moore Avenue) capture the male shopping. (13:13). As part of
     the compilation, the footage is frozen twice, focused on the male’s
     face, and photographs of [Appellant] were superimposed for
     comparison purposes. The picture of the male and the picture of
     [Appellant] both show full beards. (12:22, 13:58).

           Also occurring at 10:27 a.m., and recorded on camera, a
     red vehicle later identified as [Victim’s] parks on Cecil B. Moore
     Avenue—in between Newkirk Street and 29th Street. (15:20).
     Upon leaving the convenience store, the male walks back toward
     Newkirk Street.

            As the male is walking toward Newkirk Street he walks into
     the street on Cecil B. Moore Ave, and leans out into traffic as if to
     get a better view of something up ahead. (17:15). The male
     continues to stand on the side of the road staring in the direction
     of [Victim’s] vehicle for at least a minute. (18:15). At 10:30
     a.m., the male runs up Newkirk Street, towards the vehicle [on
     which] he had previously placed the gray item. (19:20). At 10:31
     a.m., a male wearing dark jeans gathered at the ankle, a white t-
     shirt with a logo or a lanyard, an un-zipped gray hoodie, and black
     sneakers with white trim, runs past Steak & All (a restaurant
     located between Newkirk Street and 29th Street on Cecil B. Moore
     Avenue[)]. (23:19). A freeze frame of the male running is


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      compared to two other freeze frames of the male shown earlier in
      the video. (23:49).

            At 10:31:47 a.m., the male wearing the gray hoodie runs
      up on [Victim’s] vehicle. (25:09). It is unclear what the male is
      doing, but seven seconds later a previously unseen individual
      begins to run away from [Victim’s] vehicle and a car drives off
      rapidly. (26:17). At 10:32:05 a.m., the male in the gray hoodie
      walks away from [Victim’s] vehicle. (28:02). At 10:32:15 a.m.,
      [Victim’s] vehicle drives in front of a SEPTA bus, and crashes into
      a parked car on 29th Street. (30:10, 30:36).

Trial Court Opinion, 3/19/19, at 7–9.

      Based on Ms. Chapman’s statements to police and the video surveillance

from the crime scene, inter alia, police arrested Appellant for Victim’s murder

on September 14, 2017.       While Ms. Chapman testified at trial, and the

Commonwealth played the video of the police interview with her, Ms.

Chapman did not appear voluntarily, and she denied the veracity of her

previous videotaped statement to police. N.T., 11/6/18, at 130, 133–136.

      Appellant raises the following issues on appeal:

         A. Was the evidence insufficient to sustain the convictions
            because the Commonwealth failed to prove that Appellant
            was the person who shot and killed the victim?

         B. Did the trial court commit an abuse of discretion by not
            finding that the verdicts were against the weight of the
            evidence because the video compilation was not
            authenticated in accordance with Pa.R.E. 901?

         C. Did the trial court commit an abuse of discretion by not
            finding that the verdicts were against the weight of the
            evidence because the video of the shooting failed to clearly
            show that Appellant was the shooter. Tyera Chapman
            disavowed what was in her stat[e]ment, and in any event,
            her testimony about what Appellant allegedly related to her
            was not inculpatory?

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Appellant’s Brief at 3.

      Appellant’s first issue assails the sufficiency of the evidence.     In

reviewing the sufficiency of the evidence, we must determine whether the

evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt. Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019).

“[T]he facts and circumstances established by the Commonwealth need not

preclude every possibility of innocence.” Commonwealth v. Colon-Plaza,

136 A.3d 521, 525–526 (Pa. Super. 2016) (quoting Commonwealth v.

Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the

province of the fact-finder to determine the weight to be accorded to each

witness’s testimony and to believe all, part, or none of the evidence.

Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015). The

Commonwealth may sustain its burden of proving every element of the crime

by means of wholly circumstantial evidence. Commonwealth v. Mucci, 143

A.3d 399, 409 (Pa. Super. 2016). Moreover, as an appellate court, we may

not re-weigh the evidence and substitute our judgment for that of the fact-

finder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

      Appellant asserts in conclusory fashion that the evidence presented at

trial did not prove that Appellant was the person who shot Victim. Appellant’s




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Brief at 19–20. Specifically regarding the issue of identity, our Supreme Court

has stated:

      Proof beyond a reasonable doubt of the identity of the accused as
      the person who committed the crime is essential to a conviction.
      The evidence of identification, however, needn’t be positive and
      certain in order to convict, although any indefiniteness and
      uncertainty in the identification testimony goes to its weight.
      Direct evidence of identity is, of course, not necessary and a
      defendant may be convicted solely on circumstantial evidence.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (internal

citations and quotation marks omitted).

      Appellant maintains that the video evidence does not “show the face of

the shooter” nor does it “show [A]ppellant armed with a weapon[,] and police

failed to uncover any ballistic evidence that could be connected to the

shooting.” Appellant’s Brief at 18–19. Appellant did not raise these particular

objections in his Pa.R.A.P. 1925(b) statement. In that statement, instead,

Appellant stated: “The evidence was insufficient to sustain the convictions

because the Commonwealth failed to prove that Appellant was the person who

shot the victim given that the identification was based solely on the clothes

worn by the shooter and the law is clear that convictions based solely on

clothing cannot stand.”    Statement of Matters Complained of on Appeal,

2/25/19, at 1. Thus, in his appellate brief, Appellant presents a new theory

with regard to the sufficiency of the evidence of Appellant’s identity as the

shooter. See Commonwealth v. Jones, 191 A.3d 830, 834–835 (Pa. Super

2018) (finding waiver where defendant challenged identification testimony on


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appeal under different theories than those previously addressed to trial court

in Pa.R.A.P. 1925(b) statement because trial court did not have opportunity

to review those theories).    Indeed, issues not included in a court-ordered

Pa.R.A.P. 1925(b) statement are deemed waived on appeal.               Pa.R.A.P.

1925(b)(4)(vii).   We conclude that the sufficiency-of-the-evidence issue as

raised in Appellant’s appellate brief is waived.

      In the alternative, we note that the trial court addressed the sufficiency-

of-the-evidence claim, as it was defined in Appellant’s Rule 1925(b)

statement, as follows:

            The conviction of [Appellant] was not based sole[l]y on his
      clothing.   He made an admission against interest to Tyera
      Chapman, his former girlfriend. [Appellant] told her that he
      received a telephone call from a female who informed him that
      the guy he was supposed to be beefing with, was out there.
      [Appellant] told Ms. Chapman that he did what he had to do. He
      said that he tied the hoodie tight. He wasn’t going to worry about
      it. Nobody would care. In September 2017, [Appellant] stopped
      by her house, told her that he was wanted by the police and that
      he would not turn himself in.

            Detective Dunlap’s cell phone analysis put [Appellant] within
      a square mile of the scene of the shooting at the time of the
      shooting. [Appellant] was associated with premises 1755 North
      Newkirk Street, which is about two blocks from the scene of the
      shooting. [Appellant] spent about 80 percent of his time in that
      neighborhood.

            Detective Lucke’s video compilation[] showed a male in the
      neighborhood at the time of the shooting. The male wore dark
      sneakers with white trim, dark jeans, a white T-shirt with a logo
      on the front. In different frames the male carried or wore a
      hoodie, but in other frames the male did not have a hoodie.
      Minutes before the shooting, this male was videotaped inside a
      grocery store. The defense agreed that the male in the
      supermarket was the [Appellant]. Twice [Appellant’s] photograph

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      was superimposed on the video so that the jury could compare
      the face of the male with the face of [Appellant]. Both [Appellant]
      and the male in the video had full beards. The male, with the
      hoodie tied over his head and part of his face was caught on
      videotape running away from the scene of the shooting.
      [Appellant] had told Ms. Chapman that he “tied the hoodie tight
      and that was it.”

Trial Court Opinion, 3/19/19, at 13–14. The jury found that the male in the

video was [Appellant], Trial Court Opinion, 3/19/19, at 13–14, and thus, the

trial court opined that the verdict was not based solely on the clothing worn

by Appellant.

      Even if Appellant had properly preserved this alternative basis of his

sufficiency claim to the trial court, we would conclude it lacks merit.     We

remind Appellant that the Commonwealth may sustain its burden by means

of wholly circumstantial evidence, Mucci, 143 A.3d at 409, and as an appellate

court, we may not re-weigh the evidence and substitute our judgment for that

of the fact-finder. Rogal, 120 A.3d 994. This Court has stated:

      [W]e must emphasize that the Commonwealth may sustain its
      burden of proof by means of wholly circumstantial evidence.
      Commonwealth           v.    Lehman,     820    A.2d    766,    772
      (Pa.Super.2003).       Furthermore, even if the Commonwealth
      presented only circumstantial evidence and offered no positive
      identification of the assailant, we may not weigh the evidence and
      substitute our judgment for the fact-finder as long as the evidence
      was sufficient to prove Appellant's guilt. Id.

Commonwealth v. Robertson, 874 A.2d 1200, 1206 (Pa. Super. 2005).

Appellant’s cell phone records placed him in the area of the shooting at the

time of the shooting. Detective James Dunlap, an expert in historical cell-site

analysis, in which cellular telephone calls and texts are traced, reviewed

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records for a telephone number registered to Appellant and determined that

on the date of the murder, between 9:41 a.m. and 10:39 a.m., Appellant’s

cellular telephone was within the square mile covering the crime scene.

During the same time frame, calls made to Appellant’s cell phone went

unanswered. N.T., 11/7/18, at 200. Ms. Chapman’s statements to police,

although she attempted to repudiate them, were corroborated by the

surveillance video footage.

      Viewed through the lens of the proper legal standard regarding the

sufficiency of the evidence, we would reject Appellant’s claim. Identification

evidence “need not be positive and certain to sustain a conviction.”

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011). Our review of

the entire record, with due consideration of all of the circumstantial evidence

presented in the light most favorable to the Commonwealth as verdict winner,

confirms there was sufficient evidence to establish Appellant’s identity and

sustain Appellant’s convictions.

      Appellant also challenges the weight of the evidence. We have held that

a motion for a 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.” Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super.

2016) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).

Our Supreme Court has described the standard applied to a weight-of-the-

evidence claim as follows:


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             The decision to grant or deny a motion for a new trial based
      upon a claim that the verdict is against the weight of the evidence
      is within the sound discretion of the trial court. Thus, “the function
      of an appellate court on appeal is to review the trial court’s
      exercise of discretion based upon a review of the record, rather
      than to consider de novo the underlying question of the weight of
      the evidence.” An appellate court may not overturn the trial
      court’s decision unless the trial court “palpably abused its
      discretion in ruling on the weight claim.” Further, in reviewing a
      challenge to the weight of the evidence, a verdict will be
      overturned only if it is “so contrary to the evidence as to shock
      one’s sense of justice.”

Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (quoting

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

omitted)). A trial court’s determination that a verdict was not against the

interest of justice is “[o]ne of the least assailable reasons” for denying a new

trial. Colon–Plaza, 136 A.3d at 529 (quoting Commonwealth v. Clay, 64

A.3d 1049, 1055 (Pa. 2013)). A verdict is against the weight of the evidence

where “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. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (quoting Widmer, 744 A.2d

at 751–752).    “[W]e do not reach the underlying question of whether the

verdict was, in fact, against the weight of the evidence . . . . Instead, this

Court determines whether the trial court abused its discretion in reaching

whatever decision it made on the motion.” Williams, 176 A.3d at 312.

      Appellant’s second issue, assailing the weight of the evidence because

the video evidence was not properly authenticated, is waived. In his post-

sentence motion, Appellant asked the trial court to grant him a new trial based

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upon the weight of the evidence. A challenge to the weight of the evidence

must first be raised at the trial level “(1) orally, on the record, at any time

before sentencing; (2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.”        Williams, 176 A.3d at 312 (citing

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017)). We note

that while Appellant challenged the weight of the evidence in his May 9, 2016

post-sentence motion, that motion merely generically states, “The guilty

verdicts were contrary to the weight of the evidence and should be reversed

in the interest of justice.” [Appellant’s] Post-Sentence Motion for a New Trial,

11/13/18, at 2. In the Memorandum of Law in support of the post-sentence

motion, Appellant asserts only that it was unclear in the video evidence that

Appellant was the person therein, there was no eyewitness to the shooting,

and no forensic link between Appellant and the crime. Memorandum of Law,

11/13/18, at 10–11. The post-sentence motion assailing the weight of the

evidence did not include a challenge to the authentication of the video

compilation.

      Pa.R.Crim.P. 720 provides that the filing of a post sentence motion is

optional. The comment to the rule makes clear that “the failure to brief or

argue an issue in the post-sentence motion would not waive that issue on

appeal as long as the issue was properly preserved, in the first

instance, before or during trial.” Pa.R.Crim.P. 720 cmt at Optional Post-

Sentence Motion (emphasis added). In his brief, Appellant wholly failed to


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cite to the record regarding his preservation of the issue at trial.        Our

independent review of the record reveals that the video compilation was

marked for identification and played for the jury at trial without any objection

by Appellant. N.T., 11/7/18, at 32. “Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

We conclude Appellant’s claim regarding authentication of the video evidence

is waived because Appellant did not challenge it in his Rule 1925(b) statement

and did not object to the evidence at trial.

      Appellant’s final claim that the verdict is against the weight of the

evidence “because the video of the shooting failed to clearly show that

[A]ppellant was the shooter, Tyera Chapman disavowed what was in her

statement, and . . . her testimony about what [A]ppellant allegedly related to

her was not inculpatory,” Appellant’s Brief at 26, parrots the argument in his

sufficiency claim and is akin to the weight claim asserted in Appellant’s

Memorandum of Law in support of his post-sentence motion.            The four-

paragraph argument in the brief is devoid of any reference to the record.

Appellant does not advise what was in Ms. Chapman’s statement, where she

“disavowed” it, or what Appellant “allegedly related to her.” Appellant’s Brief

at 26–27. Despite these shortcomings, we address the issue in reliance upon

the trial court’s opinion rejecting this contention, as follows:

            At trial, Tyera Chapman repudiated her prior recorded
      statement given to Detectives Golphin and Tolliver. She testified
      that she did not remember anything about the killing, that she
      previously lied to police, and that she was afraid for herself, her

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     son and [Appellant]. Her videotaped statement to the Detectives
     Golphin and Tolliver was properly admitted as substantive
     evidence.

                Pertinent to our review of this issue, we are
          mindful that “a prior inconsistent statement may be
          offered not only to impeach a witness, but also as
          substantive   evidence    if it meets additional
          requirements of reliability.”     Commonwealth v.
          Carmody, 799 A.2d 143, 148 (Pa. Super. 2002) (citing
          Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7, 9–
          10 (1992); Pa.R.E. 803.1).

              The test is a two-part inquiry: 1) whether the
              statement       is   given     under      reliable
              circumstances; and 2) whether the declarant is
              available for cross-examination. With respect to
              the first prong, that the statement is given
              under reliable circumstances, our Supreme
              Court has deemed reliable only certain
              statements; among them is a statement that is
              “reduced to a writing and signed and adopted
              by the witness.” Lively, 610 A.2d at 10; Pa.R.E.
              803.1(1). With respect to the second prong,
              cross-examination, the inconsistent statement
              itself must be the subject of the cross-
              examination in order to satisfy the test.

          Carmody, 799 A.2d at 148 (some internal citations
          and footnote omitted). See also Lively, 610 A.2d at
          10 (providing prior inconsistent statement is
          “demonstrably reliable and trustworthy” where
          statement “had been reduced to a writing signed and
          adopted by the witness; or a statement that is a
          contemporaneous verbatim recording of the witness’s
          statements”).

     Commonwealth v. Enix, 192 A.3d 78, 81–82 (Pa. Super. 2018).

           The jury heard Ms. Chapman’s recantation, and viewed the
     video interview, in which she stated that she had been treated
     “fine” when she was at the homicide unit and that she had the
     opportunity to use the bathroom and get water. The jury made a
     determination as to her credibility and accepted her testimony as

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      true. The jury determined that what [Appellant] told Ms.
      Chapman was inculpatory.

            When a trial court evaluates a weight of the evidence
            claim, the trial court may award relief only “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.” Commonwealth v. Clay, 619
            Pa. 423, 64 A.3d 1049, 1054-55 (2013) (citations
            omitted).

      Commonwealth v. Clemons, [200 A.3d 441, 463 (Pa. 2019)].

            Nothing about this verdict shock’s the conscience.

Trial Court Opinion, 3/19/19, at 16–17.

      Even if Appellant is correct that Ms. Chapman’s prior statement was

contradictory, Appellant would not be entitled to a new trial.       Questions

regarding a witness’s prior inconsistent statement are “classic issues of

credibility to be decided by the jury.” Commonwealth v. Sanchez, 36 A.3d

24, 40 (Pa. 2011). The jury concluded that Appellant was the man depicted

at the end of the surveillance video compilation. The man in the video was

dressed identically to Appellant, both men had the same facial hair, build, and

stature, and Ms. Chapman confirmed, like the man in the video, Appellant had

reported that he pulled his “hoodie tight.” We cannot say that the trial court

abused its discretion in ruling that the verdict did not shock the conscience.

Williams, 176 A.3d at 312.

      Judgment of sentence affirmed.




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J-A27020-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/19




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