J-S49027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KALVIN DRUMMOND,

                        Appellant                    No. 765 EDA 2015


        Appeal from the Judgment of Sentence of February 6, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0015052-2012

BEFORE: PANELLA and OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED JULY 22, 2016

     Appellant, Kalvin Drummond, appeals from the judgment of sentence

entered on February 6, 2015, as made final by the denial of his post-

sentence motion on February 18, 2015. We affirm.

     The factual background of this case is as follows. On the evening of

May 16, 2010, Appellant, Quentin Thompson (“Thompson”), and Seline

Akines (“Akines”) were driving around the area of 57th and Hunter Streets.

The three men discussed the fact that Don McGill (“McGill”) owed Thompson

approximately $1,000.00 from a previous drug deal.            Appellant and

Thompson told Akines that they were going to “get” McGill.      In the early

morning hours of May 17, 2010, Appellant, Thompson, and Akines saw

McGill and his girlfriend, Camille Geiger (“Geiger”) waiting for a trolley at

59th and Lansdowne Streets. At that time, Appellant and Thompson exited



* Former Justice specially assigned to the Superior Court.
J-S49027-16


the vehicle with a firearm. McGill was shot four times in the back, causing

his death.

        The relevant procedural history of this case is as follows. On January

2, 2013, The Commonwealth charged Appellant via criminal information with

ten offenses including, inter alia, murder,1 conspiracy to commit murder,2

and carrying a firearm without a license.3 At trial, Akines and Geiger both

identified Appellant as the shooter. On September 22, 2014, a jury found

Appellant not guilty of murder, guilty of conspiracy to commit murder, and

guilty of carrying a firearm without a license. On February 6, 2015, the trial

court sentenced Appellant to an aggregate term of 20 to 40 years’

imprisonment.       On February 13, 2015, Appellant filed a post-sentence

motion, which the trial court denied on February 18, 2015.        This timely

appeal followed.4

     Appellant presents two issues for our review:

     1. Was the evidence presented insufficient to sustain a conviction
        because the witness[’] statements were inconsistent and failed
        to prove [] Appellant’s participation in the alleged crime[s]?

1
    18 Pa.C.S.A. § 2502.
2
    18 Pa.C.S.A. §§ 903, 2502.
3
    18 Pa.C.S.A. § 6106(a)(1).
4
  On May 21, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). Appellant filed his concise statement on August 4, 2015.
The trial court issued its Rule 1925(a) opinion on August 26, 2015.
Appellant included both issues raised on appeal in his concise statement.



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   2. Was the weight of the evidence presented insufficient to support
      [] Appellant’s conviction because the witness[’] statements were
      inconsistent?

Appellant’s Brief at 5 (complete capitalization omitted).

      In his first issue, Appellant argues that the evidence was insufficient to

convict him of any offense. Specifically, Appellant argues that the witness’

statements were inconsistent.      He also argues that the witnesses were

offered protective relocation in return for their testimony.   He argues that

these inconsistent statements, combined with the fact that the witnesses

were offered protective relocation in return for their testimony, resulted in

insufficient evidence to prove that he conspired to commit the murder.

“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.”

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

denied, 119 A.3d 351 (Pa. 2015) (citation omitted).            In reviewing a

sufficiency of the evidence claim, we must determine “whether the evidence

presented at trial, and all reasonable inferences drawn therefrom, viewed in

a light most favorable to the Commonwealth as the verdict winner, support

the [] verdict beyond a reasonable doubt.” Commonwealth v. Benito, 133

A.3d 333, 335 (Pa. Super. 2016) (citation omitted). “The evidence does not

need to disprove every possibility of innocence, and doubts as to guilt, the

credibility of witnesses, and the weight of the evidence are for the fact-finder




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to decide.”   Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super.

2015) (citation omitted).

      Appellant cites Commonwealth v. Bennett, 303 A.2d 220 (Pa.

Super. 1973) and Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993)

in support of his argument that the contradictory evidence presented at trial

was insufficient to establish guilt.   Bennett and Karkaria, however, are

distinguishable from the case at bar.        In Bennett, the only witness who

testified against the defendant continually changed his story and gave

contradictory testimony as to the “essential issues” in the case. Id. at 221

(citation omitted). Thus, this Court found that the evidence was insufficient

to convict Bennett.     In Karkaria, the Commonwealth relied upon the

testimony of the complainant. Id. at 1168 (“The Commonwealth's case-in-

chief rested upon the testimony of the complainant[.]”). The complainant’s

statements and testimony repeatedly contradicted each other from the time

the investigation began through trial. Thus, our Supreme Court found that

the evidence was insufficient to convict Karkaria.

      In the case at bar, there were no intra-witness contradictions

regarding the essential issues in this case.           The only intra-witness

contradiction cited by Appellant is Geiger’s statements and testimony

relating to whether she met or saw Appellant prior to the date of the

murder.   This was not an essential issue in the case, instead, it was a

tangential issue. Thus, any contradiction in Geiger’s testimony was not so



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significant   as   to   render   her   testimony   unworthy    of   any   weight. 5

Furthermore, Geiger’s testimony relating to the essential issues in the case

was consistent with Akines’ testimony. As such, Bennett and Karkaria are

inapposite.    Appellant’s alternative sufficiency challenge argues that the

Commonwealth’s offer to relocate Geiger and Akines made their testimony

inherently unreliable. Appellant fails to cite any cases, and we are unaware

of any, that stand for the proposition that the Commonwealth’s offer of

protective relocation renders a witness’ testimony insufficient to convict a

defendant.

      Viewed correctly, Appellant’s sufficiency claim is more accurately

characterized as a challenge to the credibility and believability of the

testimony presented at trial. These challenges are directed at the weight,

not the sufficiency of the evidence.      See Commonwealth v. Lopez, 57

A.3d 74, 80-81 (Pa. Super. 2012), appeal denied, 62 A.3d 379 (Pa. 2013).

Appellant’s sufficiency argument therefore merits no relief.

      Finally, Appellant argues that the verdict was against 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.”      In re J.B., 106 A.3d 76, 97 (Pa. 2014) (citation omitted).

5
  Appellant’s counsel cross-examined Geiger and exposed this inconsistency
for the jury. See N.T., 9/16/14, at 139. This inconsistency may have led
the jury to acquit Appellant on the murder charge.



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Appellant failed to challenge the weight of the evidence, via written or oral

motion prior to sentencing.    See generally N.T., 9/22/14; N.T., 2/6/15.

Furthermore, he failed to raise a weight of the evidence claim in his post-

sentence motion.    See generally Post-Sentence Motion, 2/13/15 (raising

only a claim related to the discretionary aspects of sentencing). Accordingly,

Appellant waived appellate review of his weight of the evidence claim.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016




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