J-A02001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DONTE JONES

                        Appellant                   No. 1879 EDA 2013


           Appeal from the Judgment of Sentence May 10, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014635-2011


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                           FILED APRIL 06, 2015

     Appellant, Donte Jones, appeals from the judgment of sentence

entered May 10, 2013, by the Honorable Jeffrey P. Minehart, Court of

Common Pleas of Philadelphia County, following his conviction of murder in

the third degree and related offenses. We affirm.

     While serving a sentence for murder in the first degree, Appellant,

along with co-defendant Sean Sullivan, was housed in Pod 2 of Block C at

the Curran-Fromhold Correctional Facility. On June 21, 2011, Sullivan got

into a dispute with the inmates in Cell 15, Aaron Young and Richard Gyton.

Sullivan threatened to settle the dispute later that night. Sullivan began to

recruit co-conspirators, including Appellant, to assist him.   Later that day,

Sullivan, Appellant, and two other inmates went to Cell 15. Sullivan had an
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improvised knife sticking out of his pants.       Ultimately, however, prison

guards dispersed the group.

     Over the next hour, Appellant and his friends huddled together in the

prison yard, while the Cell 15 inmates played basketball and then returned

to their cell. A few minutes later, a fight broke out among inmates waiting

to use the phone. Taking advantage of the confusion, Sullivan and two of

his cohorts ran to Cell 15 and stabbed Gyton and Young multiple times. A

friend of Gyton and Young heard the screams and ran towards their cell,

where one of Sullivan’s friends attacked him.      Sullivan and company ran

towards the day room, where Appellant joined them.           They ambushed

another prisoner, Earl Bostic, stabbing him nine times and killing him. One

corrections officer saw Appellant running from Bostic’s body.    A search of

Appellant’s cell turned up eight homemade weapons.

     Following a bench trial, the trial court convicted Appellant of murder in

the third degree, conspiracy to commit homicide, possession of an

instrument of crime, and possession of a prohibited offensive weapon. All of

the charges stemmed from the murder of Bostic. The trial court acquitted

Appellant of various charges stemming from the assaults on the other

inmates.   On May 10, 2013, based upon Appellant’s prior first-degree

murder conviction, the trial court sentenced him to a second mandatory life

sentence for murder in the third degree, with concurrent sentences on the

remaining charges. This timely appeal followed.

     Appellant raises the following issues for our review.

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      1. Were the verdicts of murder in the third degree, conspiracy to
         commit murder of the third degree, possession of an
         instrument of crime and possession of an offensive weapon,
         not supported by sufficient evidence? Was the evidence
         contradictory and conflicting and not sufficient to support the
         verdicts?

      2. Were the verdicts of murder in the third degree, conspiracy to
         commit murder of the third degree, possession of an
         instrument of crime and possession of an offensive weapon
         against the weight of the evidence?

      3. Did [the trial court] err in not holding a hearing and not
         granting a new trial based on the after discovered evidence of
         recantation by the Commonwealth witnesses, Tyrell Rivers
         and Richard Gyton?

Appellant’s Brief at 5.

      We review a challenge to the sufficiency of the evidence as follows.

             The standard we apply when 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
      trier 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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.




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             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      We note preliminarily that the Commonwealth contends Appellant has

waived his challenge to the sufficiency of the evidence in support of his

convictions.    “In order to preserve a challenge to the sufficiency of the

evidence on appeal, an appellant's Rule 1925(b) statement must state with

specificity the element or elements upon which the appellant alleges that the

evidence was insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344

(Pa. Super. 2013) (citation omitted).          “Such specificity is of particular

importance in cases where, as here, the appellant was convicted of multiple

crimes each of which contains numerous elements that the Commonwealth

must prove beyond a reasonable doubt.” Id. (citation omitted).

      In his Rule 1925(b) Statement of Errors Complained of on Appeal,

Appellant argues only that the evidence was insufficient to support his

convictions    because   “the   evidence    was   extremely   contradictory   and

confusing.” Concise Statement, 7/2/13 at ¶1. Appellant fails to identify any

element of any of the crimes for which he was convicted that was not

established by sufficient evidence.        We therefore find that Appellant has

failed to preserve his sufficiency claims on appeal. See Garland, supra.


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      Even if we were to review Appellant’s sufficiency claims, they would

not merit relief.      Appellant essentially argues that his verdicts were

inconsistent because he was acquitted of the charges arising from the

assaults of prison inmates other than Bostic.            We simply find no

inconsistency.   Those charges arising out of the assaults of various other

inmates rest on facts and evidence different from that upon which

Appellant’s convictions were based. Thus, Appellant’s claim would still fail.

      Appellant next argues that the verdicts were against the weight of the

evidence. See Appellant’s Brief at 37-41. We note that

      [t]he finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses.

            As an appellate court we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when “the figure of Justice totters on her
      pedestal,” or when “the jury’s verdict, at the time of its
      rendition, causes the trial judge to lose his breach, temporarily
      and causes him to almost fall from the bench, then it is truly
      shocking to the judicial conscience.”

            Furthermore, 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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)

(citations omitted).

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      Upon review, we find no abuse of discretion by the trial court in

determining that the verdicts were not against the weight of the evidence.

The trial court’s determinations are supported by the record, and the court

acted well-within its discretion to credit the consistent testimony of the

Commonwealth’s witnesses and not Appellant.         See Commonwealth v.

Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (“[T]he trier 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.” (citation

omitted)). Thus, we find this claim to be without merit.

      Lastly, Appellant argues that the trial court erred in denying his

request for a new trial on the basis of after-discovered evidence. In support

of his claim, Appellant relies upon two affidavits in which witnesses, Richard

Gyton and Tyrell Rivers, recant their statements to detectives implicating

Appellant in Bostic’s stabbing.   See Appellant’s Brief, Exhibits B and C. To

obtain   relief   based   on   after-discovered   evidence,   Appellant   must

demonstrate that the evidence:

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




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Commonwealth v. Perrin, 108 A.3d 50, --- (Pa. Super. 2015)1 (citation

omitted).

        In the instant case, Appellant’s after-discovered evidence claim is

merely cumulative of the testimony Gyton and Rivers gave at trial.         As

astutely noted by the trial court, Gyton and Rivers had already effectively

recanted their prior statements, so that their purportedly newly discovered

testimony does not conflict with the testimony the witnesses offered at trial.

Although both witnesses initially indicated to detectives that they observed

Appellant stab Bostic, they refused to cooperate at trial and identify

Appellant as the attacker. See N.T., 2/27/130 at 144; N.T., 2/28/13 at 41.

Thus, as Gyton and Rivers never implicated Appellant in the prison attack at

trial, the supposed recantation affidavits do not satisfy the requirement that

the evidence would likely result in a different verdict if a new trial were

granted. Accordingly, Appellant’s after-discovered evidence claim fails.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015

____________________________________________


1
    As of March 26, 2015, page numbers were unavailable on Westlaw.



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