J-S82044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                          :  IN THE SUPERIOR COURT OF
PENNSYLVANIA,                            :        PENNSYLVANIA
                                         :
                    Appellee             :
               v.                        :
                                         :
                                         :
MAURICE SMITH,                           :
                                         :
                    Appellant            : No. 3687 EDA 2017

          Appeal from the Judgment of Sentence August 2, 2017
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003502-2015

BEFORE:    LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED FEBRUARY 07, 2019

      Maurice Smith (Appellant) appeals from the judgment of sentence of

22½ to 45 years of incarceration, imposed following his convictions for third-

degree murder and conspiracy to commit robbery. We affirm

      On April 25, 2013, the body of Tevan Patrick (Victim) was found inside

an abandoned property in Philadelphia. Victim had been shot nine times at

close range.    After an investigation, the Commonwealth charged Appellant

and co-defendant, Bryan Brown-Camp, with murder, conspiracy to commit

murder, robbery, conspiracy to commit robbery, possession of a firearm

prohibited, firearms not to be carried without a license, carrying a firearm in

Philadelphia, and possession of an instrument of crime. A jury trial occurred

from February 22, 2017 to March 2, 2017.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On March 2, 2017, the jury convicted Appellant and Brown-Camp of

third-degree murder and conspiracy to commit robbery. The jury found both

men not guilty of first-degree murder, conspiracy to commit murder,

robbery, and all firearms charges. On August 2, 2017, Appellant and Brown-

Camp were both sentenced to an aggregate term of 22½ to 45 years of

incarceration.1 Appellant filed a post-sentence motion,2 which was denied.

Appellant timely filed a notice of appeal, and both Appellant and the trial

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

       On appeal, Appellant begins by challenging the sufficiency of the

evidence to sustain both convictions. Appellant’s Brief at 10-12. Appellant

argues that the evidence is insufficient because “[n]ot one witness identifies

Appellant as the shooter” and that “[t]here was no evidence of a planned

robbery.” Id. at 12. We review this issue mindful of the following.

       Whether sufficient evidence exists to support the verdict is a
       question of law; our standard of review is de novo and our scope
       of review is plenary. When reviewing the sufficiency of the
       evidence, this Court is tasked with determining whether the
____________________________________________


1 They were sentenced to 20 to 40 years of incarceration for third-degree
murder and a consecutive term of 2½ to 5 years of incarceration for
conspiracy to commit robbery. Brown-Camp filed post-sentence motions
and a notice of appeal to this Court. Brown-Camp’s judgment of sentence
was affirmed by this Court on January 24, 2019.

2 Appellant’s original post-sentence motion was filed on August 2, 2017.
Thereafter, counsel for Appellant withdrew, new counsel entered her
appearance, and she filed an amended post-sentence motion, which both
incorporated the issues from the August 2, 2017 post-sentence motion and
added several new ones.



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     evidence at trial, and all reasonable inferences derived
     therefrom, [is] sufficient to establish all elements of the offense
     beyond a reasonable doubt when viewed in the light most
     favorable to the Commonwealth[.]           The evidence need not
     preclude every possibility of innocence….

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal

citations and quotation marks omitted).      Credibility of witnesses and the

weight of the evidence produced is within the province of the trier of fact,

who is free to believe all, part, or none of the evidence. Commonwealth v.

Scott, 146 A.3d 775, 777 (Pa. Super. 2016).

     In analyzing this claim, the trial court set forth the following.

             The evidence … was sufficient to sustain the convictions for
     third[-]degree murder and conspiracy to commit robbery. The
     circumstantial evidence presented in this case weaves together a
     tale of the actions of [Appellant] and [Brown-Camp] throughout
     the day on April 22, 2013. The day began with [Victim] sending
     a text message to [Janeicia Jackson, Brown-Camp’s] girlfriend,
     requesting [Brown-Camp’s] new cell phone number. Sometime
     after Jackson provided the number, [Brown-Camp] called
     [Appellant] and asked [Appellant] to pick him up. [Appellant]
     and his girlfriend, [Jackie Brown,] picked up [Brown-Camp] in
     her four door silver Hyundai. [Appellant] and [Brown-Camp]
     dropped Brown off at work, at approximately 3:00 p.m., and
     borrowed her car. [Reginald Tyler, Victim’s childhood friend,]
     saw [Victim] get into a silver four door car at the Citgo Station in
     Delaware. The phones of [Brown-Camp] and [Victim] were both
     utilizing a cell phone tower near the Citgo Station at 7:26 p.m.
     and were in contact with one another at that time. The phones
     were geographically tracked to Southwest Philadelphia, along
     with [Appellant’s] cell phone. All three phones were utilizing cell
     towers that covered that site where [Victim’s] body was
     recovered. The property where [Victim’s] body was recovered
     was an abandoned property where [Appellant’s] cousin stayed
     sometimes. [Victim’s] cell phone went off-line at approximately
     10:00 p.m., somewhere over the [Schuylkill] River, within a
     half-hour of being geographically located near Southwest
     Philadelphia with the phones of [Appellant] and [Brown-Camp].

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       When the phone went offline, it was [] utilizing cell towers in the
       same area as [Appellant’s] phone, on the Schuylkill Expressway.
       Finally, [Appellant] is seen by Jackson arriving in Brown’s four
       door silver car, a little after 10:00 p.m., at [Appellant’s] home,
       located at 3830 Parish Street (which is a short distance from the
       Schuylkill Expressway).

              [Victim] is last seen at the Citgo Station in Delaware on
       [April 22, 2013]. The last time he is heard from is close to 9:30
       p.m. that evening when he states he is with [Brown-Camp]. His
       phone is disabled as of approximately 10:00 p.m. …

             [Appellant] made statements to [two other individuals,
       Terry] Kearney and [William] Cummings[,] that he committed
       the murder during the course of a robbery that he and [Brown-
       Camp] planned.

Trial Court Opinion, 4/3/2018, at 16-17.

       Simply because Appellant was not seen actually shooting Victim does

not render the evidence insufficient.          Rather, viewing the evidence in the

light most favorable to the Commonwealth, the circumstantial evidence

established that Appellant and Brown-Camp lured Victim with the intent to

rob him, then shot Victim, and left his body in an abandoned house. In fact,

at 9:22 p.m. on April 22, 2013, Victim sent a text message to a female

friend, stating, “if some fishy shit happen I was wit B-Y.”3 Trial Court

Opinion, 4/3/2018, at 10. Around that time, the cell phones of Victim,

Appellant, and Brown-Camp were all traced in the area of the abandoned

house where Victim’s body was found. It is well-settled that “the

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


3   B-Y was a nickname for Brown-Camp.



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crime beyond a reasonable doubt by relying wholly on circumstantial

evidence.” Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa. Super.

2001). Accordingly, we conclude that Appellant is not entitled to relief on

this claim.

      In Appellant’s second issue, he claims the trial court abused its

discretion by not granting him a new trial on the basis that the verdict was

against the weight of the evidence. Appellant’s Brief at 12-13. Specifically,

Appellant argues that he was not identified as the shooter and claims there

“was no evidence of a ‘planned’ robbery.” Id. at 12. In addition, Appellant

points out that the gun was never found and “the cell phone analysis did not

put Appellant’s phone in Delaware.” Id. at 13.

      “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. Williams, 176

A.3d 298, 312 (Pa. Super. 2017) (quoting Commonwealth v. Lyons, 833

A.2d 245, 258 (Pa. Super. 2003)). We examine challenges to the weight of

the evidence according to the following standard.

      A motion for a new trial based on a claim 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. When a trial
      court considers a motion for a new trial based upon 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. The

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       inquiry is not the same for an appellate court. Rather, when an
       appellate court reviews a weight claim, the court is reviewing the
       exercise of discretion by the trial court, not the underlying
       question of whether the verdict was against the weight of the
       evidence. The appellate court reviews a weight claim using an
       abuse of discretion standard.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and

quotation marks omitted).

       Here, as discussed supra, the trial court analyzed the evidence

presented at trial. The trial court concluded that based upon this evidence

“the jury could properly infer … that [Appellant] was the perpetrator.” Trial

Court Opinion, 4/3/2018, at 13.           At trial, the jury was presented with a

series of witnesses to explain what happened to Victim on April 22, 2013.

The jury, which “was the ultimate fact-finder and the sole arbiter of the

credibility   of   each    of   the   witnesses,”   concluded   that   despite   any

inconsistencies,4 Appellant and Brown-Camp were guilty. Jacoby, 170 A.3d

at 1080.       “A jury is entitled to resolve any inconsistencies in the

Commonwealth’s evidence in the manner that it sees fit.” Id. Assessing all

of the evidence according to the governing principles cited above, we

conclude that the trial court did not abuse its discretion when it concluded



____________________________________________


4 The only inconsistency of note was the fact that Appellant’s phone was not
traced near the Citgo Station in Delaware.          However, the fact that
Appellant’s phone was not traced near there is not conclusive evidence that
Appellant was not there.



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that the jury’s verdict did not shock its sense of justice. Consequently,

Appellant’s weight challenge fails.

       Appellant next claims that the Commonwealth engaged in misconduct

in its questioning of Melissa Palmer and references to her testimony during

its closing argument. Appellant’s Brief at 13-14.       Specifically, Appellant

claims that the Commonwealth violated the principles set forth in Bruton v.

United States, 391 U.S. 123 (1968), which held that “a defendant is

deprived of his rights under the Confrontation Clause when his nontestifying

codefendant’s confession naming him as a participant in the crime is

introduced at their joint trial, even if the jury is instructed to consider that

confession only against the codefendant.” Commonwealth v. Brown, 925

A.2d 147, 149 (Pa. 2007).

       By way of background, Melissa Palmer is Brown-Camp’s cousin whom

the Commonwealth sought to have testify about an interaction she had with

Appellant and Brown-Camp after Victim’s murder.5        Prior to her testifying,

____________________________________________


5In a statement to police, Palmer stated that she received a message from
Brown-Camp on either April 24 or 25, 2013. She arranged to meet Brown-
Camp at the Belmont Plateau in Fairmount Park in Philadelphia. Appellant
was also at that meeting. At that meeting, Brown-Camp

       asked Palmer questions about her boyfriend who had been
       convicted of murder. [Brown-Camp] told Palmer that he was
       being blamed for Victim’s death. He admitted that he “set
       [Victim] up, that him and the other guy picked [Victim] up in
       Delaware and they brought him to Southwest Philly by saying
       they were going to rob a drug dealer.” [N.T., 2/24/2107, at 69].
(Footnote Continued Next Page)


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counsel for Appellant and the assistant district attorney entered into an

agreement regarding her testimony. See N.T., 2/23/2017, at 2-3.          They

agreed that rather than Palmer testifying that Brown-Camp told Palmer that

he and Appellant killed Victim, she would use the word “we” so as not to

violate Bruton. N.T., 2/23/2017, at 3.          During Palmer’s testimony, she

testified that Brown-Camp and Appellant set up a meeting with her. N.T.,

2/24/2017, at 64.       She also testified to a redacted statement, where she

explained to the jury that she told police that Brown-Camp “told [her] that

he set [Victim] up, that [Brown-Camp] and ‘the other guy’ picked [Victim]

up in Delaware and they brought him to … Southwest Philly…” Id. at 69.

According to Appellant, Palmer’s reference to “the other guy” violated

Bruton. Appellant’s Brief at 13.

      In addition, Appellant suggests that the assistant district attorney

engaged in prosecutorial misconduct by references made to this statement

during the closing argument. See N.T. 2/28/2017, at 132 (citing a reference

in the prosecutor’s closing statement to Palmer’s statement that “they” went

to pick up Victim in Delaware). Appellant argues that “[u]nder the totality of

the circumstances,” there was “a clear Bruton violation.” Appellant’s Brief at

14.
(Footnote Continued) _______________________

      [Brown-Camp] then told Palmer that he was not the shooter, but
      he was the one who set up [Victim].

Trial Court Opinion, 4/3/2018, at 5.



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      Our review of the record reveals that Appellant waived this issue by

failing to object to it at trial.   First, we observe that counsel for Appellant

consented to the version of the statement to which Palmer testified in order

to eliminate a potential Bruton violation.       See N.T., 2/23/2017, at 2-3.

During trial, if counsel believed that the Commonwealth somehow violated

this agreement or that this testimony was otherwise improper, Appellant

should have lodged an objection. Additionally, if Appellant believed the

Commonwealth’s closing argument was improper, he should have objected.

“We have long held that [f]ailure to raise a contemporaneous objection to

the evidence at trial waives that claim on appeal.” Commonwealth v.

Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013); Commonwealth v.

Arrington, 86 A.3d 831, 854 (Pa. 2014) (holding Arrington’s claim was

“waived as [his] counsel did not raise contemporaneous objections to either

the prosecutor’s summation or … request a mistrial”).            Based on the

foregoing, because Appellant did not object during this testimony or the

closing argument at trial, he has waived this issue on appeal and is therefore

not entitled to relief.

      Finally, Appellant claims that the trial court abused its discretion in

sentencing Appellant where it “relied solely on the seriousness of the crime

and its impact on his victims in imposing an unduly harsh sentence.”

Appellant’s Brief at 15.       Appellant’s claim implicates the discretionary

aspects of his sentence.


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     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the
     appellant has invoked our jurisdiction by considering the
     following four factors:

           (1) whether appellant has filed a timely notice of
           appeal, see Pa.R.A.P. 902 and 903; (2) whether the
           issue was properly preserved at sentencing or in a
           motion to reconsider and modify sentence, see
           Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
           fatal defect, Pa.R.A.P. 2119(f); and (4) whether
           there is a substantial question that the sentence
           appealed from is not appropriate under the
           Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

     Here, Appellant timely filed a notice of appeal. However, our review of

the record reveals that Appellant did not present this issue in a post-

sentence motion or at sentencing.            The only issue concerning the

discretionary aspects of sentencing set forth in his post-sentence motion

states the following: “Defendant’s aggregate sentence of 22½-45 years

should be modified on the ground that the court abused its discretion by

considering the killing in question to be an ‘execution’ when defendant was

in fact acquitted of first[-]degree murder.” Post-Sentence Motion, 8/2/2017,

at ¶ 3.   Furthermore, our review of the transcript does not reveal that

Appellant preserved this issue at sentencing. See N.T., 8/2/2017.

     Because    Appellant’s   discretionary-aspects-of-sentencing   claim   on

appeal was not presented in his post-sentence motion, we conclude that

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Appellant has not preserved this issue for our review, and he is not entitled

to relief. See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super.

2010) (stating that an appellant waives for appeal issues challenging the

discretionary aspects of his sentence where he does not raise them at

sentencing or in a post-sentence motion).

     For all of the aforementioned reasons, we affirm Appellant’s judgment

of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/19




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