J-A11018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TYRONE JEFFERSON,

                            Appellant                  No. 776 EDA 2014


          Appeal from the Judgment of Sentence of October 28, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008441-2012


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                             FILED AUGUST 18, 2015

        Appellant, Tyrone Jefferson, appeals from the judgment of sentence

entered on October 28, 2013 in the Criminal Division of the Court of

Common Pleas of Philadelphia County, as made final by the denial of post-

sentence motions on March 4, 2014. We affirm.

        Following a fatal shooting in Philadelphia, a jury convicted Appellant of

third degree murder, criminal conspiracy, and possessing instruments of

crime.1    On October 28, 2013, the trial court sentenced Appellant to an

aggregate term of 25 to 54 years’ imprisonment.            Appellant filed post-

sentence motions on November 5, 2013, which the trial court denied on

March 4, 2014.        Thereafter, Appellant filed a timely notice of appeal on

____________________________________________


1
    18 Pa.C.S.A. § 2502(c), 903(a), and 907(a).
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March 13, 2014 and a concise statement pursuant to Pa.R.A.P. 1925(b) on

March 28, 2014. The trial court issued its Rule 1925(a) opinion on July 22,

2014.

        Appellant’s brief to this court raises the following questions for our

review:

        Were the convictions for [m]urder of the [t]hird [d]egree (18
        Pa.C.S.A. § 2502(c)), [c]riminal [c]onspiracy to [c]ommit
        [m]urder (18 Pa.C.S.A. § 903), and [p]ossession of an
        [i]nstrument of crime [“PIC”] (18 Pa.C.S.A. § 907), not
        supported by sufficient evidence?      Was the evidence and
        testimony so conflicting that the evidence was only speculative
        in nature, thereby causing the verdicts not to be supported by
        sufficient evidence?

        Were the convictions for [m]urder of the [t]hird [d]egree,
        [c]riminal conspiracy to [c]ommit [m]urder, and [PIC] against
        the weight of the evidence?         Should the conflicting and
        speculative nature of the evidence shock the conscience and
        require the reversal of the aforementioned convictions?

        Did the [a]ssistant [d]istrict [a]ttorney err in his opening and
        closing speeches by making inflammatory statements,
        statements of personal opinion, improperly vouching for
        witnesses, and suggesting the Appellant was related to a drug
        gang? Did [the trial court] err in denying the mistrial request?

        Did [the trial court] err and tarnish [defense counsel] in front of
        the jury wherein [it] criticized him for making a valid objection
        during the [d]istrict [a]ttorney’s opening statement?

Appellant’s Brief at 5-6.

        Appellant’s first claim challenges the sufficiency of the evidence offered

in support of his convictions.      We evaluate such claims under a familiar

standard:



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      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. We review the evidence in the light most
      favorable to the verdict winner to determine whether there is
      sufficient evidence to allow the jury to find every element of a
      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 finder 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.

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

(internal citations and quotations omitted).

      Appellant’s sufficiency challenge asserts that the Commonwealth failed

to prove that Appellant participated in the killing.   Specifically, Appellant

relies on his own testimony, alibi testimony, character testimony, and the

testimony of others who said that Appellant was not present and did not

commit the killing. See Appellant’s Brief at 42-43. Appellant also points to

alleged inconsistencies in the testimony of the Commonwealth’s two

eyewitness in claiming that “delays and contradictions [in this evidence]

create[d] the kind of speculation that is prohibited by” prior Pennsylvania

case law. Id. at 43.

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      Appellant’s sufficiency challenge merits no relief.         At trial, the

Commonwealth offered the testimony of two witnesses who identified

Appellant and his co-defendant as the individuals who participated in the

killing of the victim. In particular, the Commonwealth’s witnesses testified

that Appellant handed a revolver to his co-defendant, who then shot the

victim in the forehead.     Both witnesses observed these events from a

distance of less than ten feet.    This evidence was more than sufficient to

establish Appellant’s role as a participant in the victim’s shooting death.

Since the jury credited this version of events over that offered by witnesses

for the defense, and since we are forbidden to re-weigh the jury’s credibility

assessments, Appellant’s sufficiency claim fails.

      Appellant’s second claim asserts that he is entitled to a new trial since

the jury’s verdict was against the weight of the evidence. This claim, too,

lacks merit.

      We review a weight of the evidence claim according to the following

standard:

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the [jury] is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the [jury's] verdict is so contrary to the evidence that it shocks
      one's sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge's
      discretion was properly exercised, and relief will only be granted

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      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Tejada, 107 A.3d at 795-796.

      Appellant argues that the court abused its discretion in denying a

request for a new trial because his conviction on charges of third degree

murder and related offenses was against the weight of the evidence.

Largely, Appellant’s weight claim mirrors the contentions offered in support

of his sufficiency challenge.     See Appellant’s Brief at 46 (“the same

arguments made in the sufficiency of evidence argument section go to the

weight of evidence argument due to the conjecture and conflicting and

speculative evidence”).     Here, again, Appellant maintains that that the

testimony    adduced   by   the   Commonwealth      to   establish   Appellant’s

participation in the killing was unreliable and, for this reason, he is entitled

to a new trial.

      The trial court found that the jury's verdict was supported by the

evidence and did not shock its sense of justice.          Trial Court Opinion,

7/22/14, at 4-7. In reviewing Appellant’s weight claim, the court carefully

considered the testimony of the Commonwealth’s witnesses and concluded

that, “[d]espite the evidence in support of [Appellant’s] position that he was

not involved with this crime, the Commonwealth’s evidence was sufficient to

substantiate the jury’s verdict.” Id. at 6. We find no abuse of discretion in

this determination. As such, Appellant is due no relief on this issue.




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     Appellant’s third and fourth issues are interrelated; hence, we consider

them together.    Here, Appellant alleges that the trial court abused its

discretion in refusing to grant a mistrial on grounds that: 1) the assistant

district attorney’s opening and closing statements wrongly accused Appellant

of participating in drug-related activity; 2) the assistant district attorney

improperly suggested to the jury that the defense had an obligation to

obtain statements from witnesses; 3) the assistant district attorney offered

personal opinions about the evidence introduced at trial; and, 4) the court

chastised and denigrated defense counsel in the eyes of the jury. The trial

court rejected these claims, concluding, respectively, that:          1) the

prosecutor’s references to prior bad acts evidence constituted fair assertions

based on the evidence (id. at 14); 2) the prosecutor’s references to the

passage of time between the victim’s murder and the statements given by

the witnesses constituted oratorical flair based upon the evidence (id. at 15-

16); 3) the trial court sustained defense counsel’s objections, warned the

prosecutor to avoid inserting his personal opinions, and instructed the jury

to disregard the prosecutor’s opinions and base the verdict on the evidence

(id. at 17-19); and, 4) the court’s interjections regarding defense counsel

were made to expedite trial and insure orderly proceedings (id. at 20 n.16).

After careful review of the certified record and the submissions of the

parties, we concur in the trial court’s determinations and discern no error or




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abuse of discretion. Hence, we conclude, for the reasons expressed by the

trial court, that Appellant is not entitled to relief on his final claims.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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