J-S20009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

FRANCOIS HENDERSON,

                         Appellant                No. 1383 MDA 2017


  Appeal from the Judgment of Sentence Entered on September 27, 2011
               in the Court of Common Pleas of Berks County,
            Criminal Division at No(s): CP-06-CR-0004125-2010.


BEFORE: GANTMAN, P.J., OTT, J. and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                         FILED MAY 31, 2018

      Francois Henderson appeals from the judgment of sentence entered

after a jury convicted him of third-degree murder, possessing a firearm

without a license, possessing an instrument of crime, and possession of a

controlled substance with intent to deliver.   Henderson appeals the trial

court’s denial of his claims that the verdict was against the weight of the

evidence. Upon review, we affirm.

      The facts as summarized by the trial court, and previously adopted by

a panel of this court, are as follows:

      On the evening of August 26, 2007, Chauncey Pringle was fatally
      shot outside of the Bookbindery Apartments in the city of
      Reading, Berks County. [Henderson] and David Troy Johnson
      were charged with homicide in connection with Mr. Pringle’s
      murder. Latoya Aponte testified that on August 26, 2007 at
      approximately 8:00 p.m., Mr. Pringle visited her apartment
      located at the Bookbindery Apartments to watch a television
      show. She had known the victim for only a few weeks and the
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     two were friends. Ms. Aponte testified that while she was
     watching television with Mr. Pringle, she received several
     telephone calls from David Troy Johnson. According to Ms.
     Aponte, Johnson repeatedly asked about Mr. Pringle and tried to
     confirm that he was present in the apartment. In an attempt to
     stop the phone calls and persuade Johnson to leave the area,
     Ms. Aponte met Johnson outside of the Bookbindery Apartments.
     After a short conversation, Ms. Aponte returned to her
     apartment. She observed Johnson walk in the direction of the
     parking lot’s exit.

     At approximately 9:00 p.m., after the television show ended, Mr.
     Pringle and Ms. Aponte left the apartment to go to the comer
     tavern. When Ms. Aponte exited the building, she saw Johnson
     and another person she knew as ‘Rose,’ later identified as
     [Henderson], sitting on a nearby bench. Johnson and Pringle
     started conversing about giving each other alleged ‘looks’ and
     ‘stares.’ At the same time, Ms. Aponte observed [Henderson]
     edging around a parked car in Pringle’s direction.        When
     [Henderson] was approximately four to six feet away from
     Pringle, Ms. Aponte testified that she saw [Henderson] point a
     handgun at Mr. Pringle. Mr. Pringle held his hands up and began
     to retreat away from [Henderson] toward Fourth Street. Ms.
     Aponte testified that she turned and ran for the safety of her
     apartment building. Ms. Aponte heard several shots but did not
     see what happened to Mr. Pringle. She later learned that Mr.
     Pringle had become the victim of a homicide.

     At approximately 11:30 p.m., Reading Police responded to the
     100 block of North Fourth Street for reports of a shooting. The
     body of Chauncey Pringle was discovered in front of 122 North
     Fourth Street. Mr. Pringle was unresponsive and laying in the
     middle of the street. Emergency medical services personnel
     responded to the scene, but Mr. Pringle was pronounced
     deceased at 12:10 a.m. on August 27, 2007 in the Reading
     Hospital Emergency Room.

     Police recovered $68,900 in cash from the victim’s body as well
     as three cell phones and a Ruger P90 handgun. Evidence
     technicians photographed and collected several bullet casings
     and projectiles from the parking lot of the Bookbindery
     Apartments. These items were later submitted to the
     Pennsylvania State Police Crime Laboratory for analysis.




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     An autopsy of the victim was performed by pathologist Neil
     Hoffman, M.D. on August 27, 2007. Dr. Hoffman testified that
     the cause of the victim’s death was ‘perforation of bifurcation of
     the aorta due to gunshot wound to the abdomen.’ Dr. Hoffman
     was unable to recover ballistics evidence from the body, as the
     projectile entered the right side victim’s body and exited the left
     side.

     Police spoke with residents of the Bookbindery Apartments,
     including Ms. Aponte, and identified [Henderson] as a person of
     interest in Mr. Pringle’s death. Officers received information that
     [Henderson] was staying with a girlfriend at 511 North Court. On
     August 28, 2007, Reading Police located [Henderson] at that
     residence and took him into custody. After receiving consent to
     search the room where [Henderson]’s [sic] was arrested, police
     found a .45 caliber semi-automatic Sig Sauer handgun,
     additional .45 caliber rounds and twenty-nine (29) baggies of
     suspected crack cocaine.        The evidence was secured and
     submitted to the Pennsylvania State Police Crime Laboratory for
     analysis and comparison with the items recovered from the
     Pringle homicide.[FN]

     ___________________
        [FN]Forensic Scientist James DiFlorio of the Pennsylvania
        State Police Crime Lab testified that the substance inside
        the baggies tested positive as cocaine and weighed 2.17
        grams. N.T. at 189. Criminal Investigator John Lackner of
        the Reading Police Department was qualified as an expert
        witness in the area of illegal drug trafficking and opined
        that the 29 baggies were possessed by [Henderson] with
        intent to distribute and not for mere possession.

     On December 4, 2007, Officer Christopher Dinger of the Reading
     Police Department recovered a Heckler & Koch .45 caliber semi-
     automatic handgun while assisting another officer in the arrest of
     David Troy Johnson. In a search incident to arrest, officers also
     recovered a fully-loaded [sic] magazine containing .45 caliber
     rounds from Johnson's pocket. These items were also submitted
     to the Pennsylvania State Police Crime Laboratory for testing and
     comparison to evidence found at the scene of Mr. Pringle’s
     homicide.

     Sergeant Kurt Tempinski of the Pennsylvania State Police was
     qualified by the court as an expert in the area of firearms and
     toolmark examination. Sgt. Tempinski explained to the jury the

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     various tests that he performed on the ballistics evidence
     recovered from the shooting of Chauncey Pringle, including all
     three firearms involved in the incident as well as the shell
     casings, projectiles and bullet fragments. Sgt. Tempinski found
     that each firearm was operable and capable of firing the
     appropriate ammunition. Sgt. Tempinski testified that one of the
     casings (T-4) and a projectile (K-2) were fired from the Sig
     Sauer allegedly possessed by [Henderson] and used on August
     26, 2007. Additionally, another projectile (K-4), though too
     damaged for a conclusive match, was consistent with having
     been fired from [Henderson’s] Sig Sauer or the victim’s Ruger
     P90.

     The projectile marked as K-2, referred to by Tempinski as a
     ‘discharged metal-jacketed bullet’ or ‘lead bullet core,’ was
     significantly less damaged than the other fragments. When
     asked to explain this difference, Sgt. Tempinski opined ‘[I]t’s
     been my experience that sometimes when bullets pass into soft
     tissue of a human being, that they remain pristine and intact.’

     [Henderson] took the stand in his own defense and asserted that
     Mr. Pringle was the first to show a weapon and begin shooting.
     [Henderson] testified that, when he observed a gun in the
     victim’s waistband, he drew his own firearm and told Mr. Pringle
     to ‘stop reaching.’ [Henderson] stated that Mr. Pringle ‘started
     backing up screaming for help. He said - help they trying to kill
     me.’

     [Henderson] admitted on cross-examination that on August 26,
     2007, he possessed the Sig Sauer .45 caliber firearm, concealed
     on his person, without a valid license.           [Henderson] also
     explained that he did not believe his life was threatened until Mr.
     Pringle allegedly began shooting. [Henderson] stated that he
     was not trying, to intentionally kill the victim, but ‘trying to back
     Mr. Pringle off me.’ However, [Henderson] admitted that he
     drew his firearm first and held it on Mr. Pringle, as he believed
     that Pringle was ‘reaching’ for a concealed weapon. After the
     shooting, [Henderson] and Johnson fled the area.

Commonwealth v. Henderson, 492 MDA 2013 unpublished memorandum

at 1-5 (January 31, 2014) (citations omitted).




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        On September 8, 2011, a jury found Henderson guilty of third-degree

murder, possessing a firearm without a license, possessing an instrument of

crime, and possession of a controlled substance with intent to deliver,1 but

acquitted him of first degree murder and conspiracy to commit criminal

homicide.2     On September 27, 2011, the trial court sentenced him to an

aggregate term of 28½ to 57 years imprisonment.

        From this judgment of sentence, Henderson filed a notice of appeal

with this Court on October 27, 2011. The appeal was dismissed, however,

based upon Henderson’s counsel’s failure to file the required docketing

statement.     Henderson filed a timely PCRA petition, which resulted in the

reinstatement of his direct appeal rights.       A panel of this Court affirmed

Henderson’s judgment of sentence. Id. at 10.

        On October 24, 2014, Henderson filed another pro se PCRA petition

raising ineffectiveness of trial counsel for failure to preserve weight of the

evidence claims in his post-sentence motion.            Counsel was appointed to

represent    Henderson       on   his   PCRA.    With    the   agreement   of   the

Commonwealth, relief was granted in the form of reinstatement of

Henderson’s post-sentence and direct appeal rights with respect to his

weight claims. Henderson filed a post-sentence motion on March 31, 2017,

which was denied by operation of law on August 2, 2017.                Henderson

____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 907(b); 35 P.S. § 780-113(a)(30).
2   18 Pa.C.S.A. §§ 2502(a), 903.



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appealed again, filing his Notice of Appeal on August 31, 2017. Henderson

complied with the trial court’s directive to file a concise statement of errors

complained of on appeal. Thereafter, on October 23, 2017, the trial court

issued its Rule 1925(a) Opinion. This matter is now before the court.

      On appeal, Henderson raises the following issues for our review:

      A. The trial court erred in denying [Henderson’s] post-sentence
         motion where all of the verdicts were against the weight of
         the evidence as it is clear from the record that no witness was
         able [to] affirmatively identify [Henderson] as the
         perpetrator.

      B. The trial court erred in denying [Henderson’s] post-sentence
         motion where all of the verdicts were against the weight of
         the evidence as it is clear from the record that no physical
         evidence was presented by the Commonwealth to
         affirmatively establish [Henderson] as the perpetrator where
         the Pennsylvania State Police testified that any potential DNA
         evidence on the projectile from [Henderson’s] handgun was
         washed away prior to being tested and therefore it could not
         be determined if the projectile from [Henderson’s] handgun
         came into contact [with] the victim’s body.

      C. The trial court erred in denying [Henderson’s] post-sentence
         motion where all of the verdicts were against the weight of
         the evidence as it is contrary to justice to believe that the
         jury and the trial court found credibility in most, if not all of
         the testimony of Latoya Aponte, witness for the
         Commonwealth, for the following reasons:

         1. That it is clear from the record that Ms. Aponte could
            not have seen [Henderson] sufficiently enough to be
            able to affirmatively identify him as the perpetrator
            because it was nighttime and the area was poorly lit;

         2. That is clear from the record that the trial testimony of
            Ms. Aponte, the only witness to the incident, was the
            product of an admitted liar; and,




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        3. That it is clear from the record that Ms. Aponte did not
           see [Henderson] fire his weapon as she had turned her
           back on the situation and had run into her residence.

Henderson   Brief   at   5   (unnecessary   capitalization   omitted).   All   of

Henderson’s issues challenge the weight of the evidence.

     The Pennsylvania Supreme Court has set forth the following standard

of review for weight of the evidence claims:

     The essence of appellate review for a weight claim appears to lie
     in ensuring that the trial court's decision has record support.
     Where the record adequately supports the trial court, the
     trial court has acted within the limits of its discretion.

                                     ***

     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. Rather, the
     role of the trial judge is to determine that notwithstanding all the
     facts, 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.

                                     ***

     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court. Appellate review of a weight
     claim is a review of the exercise of discretion, not of the
     underlying question of whether the verdict is against the
     weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations

omitted) (emphasis added).




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      In order for a defendant to prevail on a challenge to the weight of the

evidence before the trial court, “the evidence must be ‘so tenuous, vague

and uncertain that the verdict shocks the conscience of the court.’”

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003)

(citations omitted). “Because the trial judge has had the opportunity to hear

and see the evidence presented, an appellate court will give the gravest

consideration to the findings and reasons advanced by the trial judge when

reviewing the trial court’s determination that the verdict is [or is not] against

the weight of the evidence.”    Commonwealth v. Talbert, 129 A.3d 536,

546 (Pa. Super. 2015) appeal denied, 138 A.3d 4 (Pa. 2016).           Absent an

abuse of discretion the trial court’s decision will not be disturbed.”      See

Commonwealth v. Griffin, 515 A.2d 865, 869 (Pa. 1986).

      Initially we note, as pointed out by the Commonwealth, that, although

Henderson acknowledged application of the abuse of discretion standard by

this Court, he does not specify how the trial court so abused its discretion.

Rather, he asks this Court to reassess the credibility of the eyewitnesses and

reweigh the testimony and evidence presented at trial.          In view of the

foregoing standard, it is clear that we cannot.      Notwithstanding this, our

review of the record and consideration of the trial court’s rationale for

concluding that the verdict was not so contrary to the evidence as to “come

as a shock to [the] court”, and, thus, denying Henderson’s motion, reveals

no abuse of discretion.




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      Henderson first claims that the jury’s verdict was against the weight of

the evidence because no witness directly identified him as the shooter. He

argues a proper reweighing of the evidence would reveal this.

      In reaching its conclusion that the verdict was not against the weight

of the evidence, the trial court stated that, although no one directly

identified Henderson as the shooter that killed Mr. Pringle, the circumstantial

evidence presented at trial clearly would allow the jury to conclude that

Henderson killed Mr. Pringle. See Trial Court Opinion, 10/23/17, at 7. It is

well established that the Commonwealth may meet its burden of proof

wholly with circumstantial evidence. Commonwealth v. Craybill, 926 A.2d

488, 490 (Pa. Super. 2007).

      Henderson admitted to being at the scene that night. An eyewitness

saw Henderson point his gun at Mr. Pringle.       Henderson himself admitted

shooting his gun at Mr. Pringle.    A Sig Sauer casing and projectile, which

likely passed through human tissue, was found at the scene. At the time of

his arrest, Henderson had a Sig Sauer in his possession. No evidence was

presented that his counterpart, Johnson, had a gun on him that evening.

His claim that no one identified him as the perpetrator fails.

      Henderson next claims that the sole eyewitness to the shooting,

Latoya Aponte, was not credible, for several reasons, and therefore, the

verdict was contrary to the weight of the evidence. The trial court’s review

of the record recognized that, despite some weaknesses in Ms. Aponte’s

testimony, it was within the province of the trier of fact to weigh the

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credibility of the witnesses and to believe all or part, or none of their

testimony, including Ms. Aponte’s.      See Commonwealth v. Zingarelli,

839 A.2d 1064, 1069 (Pa. Super. 2003). The trial court concluded that the

jury believed all or some of Ms. Aponte’s testimony in reaching their verdict.

See Trial Court Opinion, 10/23/17, at 10. Thus, Henderson’s challenge to

Ms. Aponte’s credibility fails.

      Lastly, Henderson claims that the jury’s verdict was against the weight

of the evidence because there was no physical evidence to affirmatively

establish him as the shooter.     The DNA evidence on the projectile from

Henderson’s gun was washed away prior to testing. Therefore, it could not

be determined that it came into contact with Mr. Pringle. Moreover,

Henderson claims, the destruction of such potentially exculpatory evidence

dictates a new trial.

      In addressing this issue, the trial court concluded that DNA evidence

was not necessary to conclusively establish guilt.       The Commonwealth

presented other physical and circumstantial evidence, which taken together,

made a strong case in support of the jury’s finding of guilt.      We agree.

Henderson’s claims regarding the absence of physical evidence also fail.

      In sum, the trial court’s conclusion, that the verdict was not so

contrary to the evidence so as to shock the conscience of the court, was

supported by the record in this case. We, therefore, find that the trial court

properly exercised its discretion, and affirm Henderson’s judgment of

sentence.

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/31/18




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