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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DURRELL JOHNSON,

                            Appellant                    No. 33 EDA 2014


            Appeal from the Judgment of Sentence of May 30, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006498-2012


BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                               FILED MARCH 03, 2015

       Appellant, Durrell Johnson, appeals from the judgment of sentence

entered on May 30, 2013, following his jury trial convictions for two counts

of attempted murder, two counts of aggravated assault, carrying a firearm

without a license, and carrying a firearm on the streets of Philadelphia. 1

Upon review, we affirm his convictions, but remand for resentencing.

       The trial court aptly set forth the facts of this case as follows:

            On February 21, 2012, around 2:00 p.m., Kevin Vancliff
         and his pregnant girlfriend, Michelle Page, were walking in
         the area of 23rd and Latona Streets in Philadelphia. Nearby,
         Sakhadin Slomidze, a bricklayer, was laying bricks.
         Suddenly, [Appellant] exited from a green Pontiac driven by
____________________________________________


1
  18 Pa.C.S.A. §§ 901, 2702, 6101, and 6108, respectively. Appellant also
pled guilty, in a separate proceeding, to persons not to possess a firearm.
18 Pa.C.S.A. § 6105.
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        his co-conspirator, Preston Worthem, pulled out a gun, and
        fired it five times. [Appellant] struck Kevin Vancliff in the
        back and Sakhadin Slomidze in the buttocks and the wrist.
        Once the shooting started, Mr. Vancliff pushed [] Michelle
        Page [] down onto the ground and then ran away. Ms. Page
        witnessed [Appellant] firing the gun and jumping into the
        green Pontiac, which then fled the scene. So terrified and
        traumatized was Ms. Page, that she urinated on herself,
        went into false labor after giving police a statement and was
        rushed to the hospital.

            Ms. Page told police that she had known [Appellant]
        since she was twelve years old and positively identified
        [Appellant] from a police photo array as the man who shot
        Mr. Slomidze and Mr. Vancliff. Ms. Page identified the co-
        conspirator as the man who was driving the green Pontiac.
        She told police that she had seen both defendants in a
        green Pontiac about five minutes before the shooting.
        Police found five spent shell casings where the shooting
        took place. A corner store nearby the shooting had a video
        camera which showed the green Pontiac matching the
        description given by Ms. Page turning down Latona Street
        shortly before the shooting occurred. On February 22,
        2012, police stopped a green Pontiac containing both
        [Appellant] and his co-conspirator.

Trial Court Opinion, 6/30/2014, at 3-4 (record citations omitted).

      Procedurally, the case progressed as follows:

             On March 26, 2013, a jury [] found [Appellant] guilty of
        [all of the aforementioned charges, except persons not to
        possess a firearm]. By agreement, [the trial court] found
        [Appellant] guilty of [persons not to possess a firearm]
        because the jury convicted him of weapons offenses. On
        May 30, 2013, [the trial court] sentenced [Appellant] to
        consecutive terms of imprisonment of ten (10) to twenty
        (20) years [of] incarceration for each [a]ttempted [m]urder
        [conviction], five (5) to ten (10) years [of] incarceration for
        [persons not to possess a firearm] to run consecutive to the
        [a]ttempted [m]urder sentences. The remaining sentences
        of four (4) to eight years [of] incarceration for [c]arrying a
        [f]irearm [w]ithout a [l]icense and one (1) to two (2) years
        [of] incarceration on [c]arrying [a] [f]irearm [on the streets

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        of] Philadelphia were to run concurrent with [the persons
        not to possess a firearm conviction]. The total sentence
        equals twenty-five (25) to fifty (50) years [of]
        incarceration[. …] On June 5, 2013, [Appellant] filed a
        [m]otion for [r]econsideration of [s]entence. On June 28,
        2013, [Appellant] filed a [n]otice of [a]ppeal, which was
        subsequently quashed by [this Court] as interlocutory on
        October 28, 2013. On October 31, 2013, [Appellant’s]
        [m]otion for [r]econsideration of [s]entence was denied by
        operation of law.     On that same day, [Appellant] filed
        another [n]otice of [a]ppeal.

            On January 2, 2014, [the trial court] issued a
        [Pa.R.A.P.] 1925(b) order. [After a series of extensions,
        Appellant filed a Rule 1925(b) concise statement of errors
        complained of on appeal, raising two issues. The trial court
        issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 30,
        2014.]

Id. at 1-2 (record citations and footnotes omitted).

      On appeal, Appellant presents the following issues for our review:

        A. Was Appellant’s conviction against the weight of the
           evidence?

        B. Did the trial court issue a greater sentence than
           necessary?

Appellant’s Brief at 3 (complete capitalization omitted).

      In his first issue presented, Appellant contends that his conviction was

against the weight of the evidence. Appellant’s argument, in its entirety, is

as follows:

            Here, the trial court’s conviction of Appellant was
        against the weight of the evidence presented at trial. The
        entirety of the Commonwealth’s case rested on the
        nontestimony of [Michelle] Paige. Paige was shown to have
        lied from the inception of the investigation. She was shown
        to be noncompliant at every turn with the investigation and
        the Commonwealth. The description she gave of Appellant


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         was inaccurate. All of these issues lead to the belief that
         every story that she gave was not to be believed. This is
         especially true given that the actual victim, Vancliff, testified
         and even gave a statement that the shooter’s face was
         obscured, either by a hoodie or by a mask. One must
         question how Paige in her statement could have stated that
         she saw Appellant when Vancliff was the first to notice his
         shooter and the face was already obscured. Then she
         allegedly knew Appellant for at least one full decade, in her
         statement to police, she indicated that Appellant had
         tattoos. [Appellant] testified that this was just not true.
         Appellant had no tattoos. If she [] immediately started her
         interview with police by lying, she was completely off target
         with her description of Appellant, and her version of events
         is the only one that puts a face to a man whose face was
         obscured, then her entire version of events must be
         discredited. As her testimony is the only evidence that
         could be used to convict Appellant, his conviction should be
         overturned as it “shock[s] one’s sense of justice[.]”

Id. at 17-18.

      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. 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 a trial
         court's determination that the verdict is against the weight
         of the evidence. One of the least assailable reasons for
         granting or denying a new trial is the lower court's
         conviction that the verdict was or was not against the
         weight of the evidence and that a new trial should be
         granted in the interest of justice.

         This does not mean that the exercise of discretion by the
         trial court in granting or denying a motion for a new trial


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        based on a challenge to the weight of the evidence is
        unfettered. In describing the limits of a trial court's
        discretion, [our Supreme Court has] explained:

           The term discretion imports the exercise of
           judgment, wisdom and skill so as to reach a
           dispassionate conclusion within the framework of the
           law, and is not exercised for the purpose of giving
           effect to the will of the judge. Discretion must be
           exercised on the foundation of reason, as opposed to
           prejudice, personal motivations, caprice or arbitrary
           actions. Discretion is abused where the course
           pursued represents not merely an error of judgment,
           but where the judgment is manifestly unreasonable
           or where the law is not applied or where the record
           shows that the action is a result of partiality,
           prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

and quotations omitted) (emphasis in original).

     Here, the trial court concluded:

               In the instant case, the jury heard testimony from
        both victims that they were shot at 23rd and Latona Street.
        Although Mr. Vancliff testified at trial that he could not
        identify the shooter because the shooter was wearing a
        hood, and Ms. Paige was not present to testify at trial, Ms.
        Paige’s prior signed statement and the police photo arrays
        she signed during an interview with police clearly identified
        [Appellant] as the shooter. Ms. Paige’s recollection in her
        prior statement about the green Pontiac being in the area
        minutes before the shooting took place was corroborated by
        the video from the corner store. Given the verdict, the jury
        obviously credited the Commonwealth’s case. Thus, the
        verdict could hardly be said to shock one’s sense of justice
        and was fully consistent with the totality and weight of the
        evidence presented.

Trial Court Opinion, 6/30/2014, at 4-5.




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

denying relief on Appellant’s weight of the evidence claim. Here, although

Ms. Paige was unavailable for trial, the jury heard her prior statements to

police and was permitted to view her selection of Appellant from a

photographic array. See N.T., 3/22/2013, at 14-16, 18-19. Ms. Paige knew

Appellant from childhood. Id. at 17-18. She saw him five minutes prior to

the shooting in a green Pontiac. Id. at 20, 23. Ms. Paige stated that she

saw Appellant shoot five or six shots in her direction, get into a green

Pontiac, and speed away.     Id. at 15-16.   Mr. Vancliff testified, and told

police in an earlier statement, that his shooter was a black male, 5’ 9” who

was wearing a black hooded sweatshirt. N.T., 3/20/2013, at 70. Appellant

matched that description. N.T., 3/22/2013, at 109. Detective Eric Johnson

interviewed Ms. Paige and reviewed a video recovered from a store nearby

to determine that a green Pontiac was in the area at the time of the

shooting. Id. at 54-55. The day after the shooting, police stopped a green

Pontiac and Appellant and his co-defendant were arrested. Id. at 60-65.

     Based upon the foregoing, the verdict does not shock one’s sense of

justice. The jury was free to make credibility determinations based upon the

evidence before them. See Commonwealth v. Diggs, 949 A.2d 873, 879

(Pa. 2008) (“The factfinder is free to believe all, part, or none of the

evidence and to determine the credibility of the witnesses.”). Therefore, the

trial court did not abuse its discretion in denying Appellant relief on his




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weight of the evidence claim. Hence, Appellant’s first issue presented lacks

merit.

      In his second issue presented, Appellant claims that his sentence was

manifestly excessive. Appellant’s Brief at 18-19. We find this issue waived.

When challenging the discretionary aspects of a sentence, the Pennsylvania

Rules of Appellate Procedure require that:

         An appellant who challenges the discretionary aspects of a
         sentence in a criminal matter shall set forth in his brief a
         concise statement of the reasons relied upon for allowance
         of appeal with respect to the discretionary aspects of a
         sentence. The statement shall immediately precede the
         argument on the merits with respect to the discretionary
         aspects of sentence.

Pa.R.A.P. 2119(f) (emphasis added). Here, Appellant failed to include the

requisite Rule 2119(f) statement. “A failure to include the Rule 2119(f)

statement does not automatically waive an appellant's argument; however,

we are precluded from reaching the merits of the claim when the

Commonwealth lodges an objection to the omission of the statement.”

Commonwealth v. Bruce, 916 A.2d 657, 666 (Pa. Super. 2007) (citation

omitted). In this case, the Commonwealth objected to Appellant’s omission.

See Commonwealth’s Brief at 18. Thus, we are precluded from reaching the

merits of Appellant’s discretionary sentencing claim.

      Finally, the trial court requests sua sponte that this Court vacate

Appellant’s judgment of sentence and remand for re-sentencing due to




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errors that occurred, unrelated to this appeal, resulting in the imposition of

an illegal sentence:

            In reviewing the record, [ ] the trial court] notes sua
        sponte that two errors occurred with the imposed sentence.
        The first is that the four (4) to eight (8) year concurrent
        sentence for [c]arrying a [f]irearm [w]ithout a [l]icense is
        an illegal sentence, as it exceeds the seven (7) year
        maximum for a felony of the third degree. 18 Pa.C.S. §
        1103(3). Secondly, at the sentencing hearing [the trial
        court] stated on the record that the sentence for [c]arrying
        a [f]irearm [w]ithout a [l]icense should run concurrent to
        the [persons not to possess a firearm] sentence. N.T.,
        5/30/2014, at 32. However, the sentencing order specifies
        that the sentence on the two charges was to run
        consecutive[ly]. Therefore, [the trial court] requests that
        [this Court] vacate the judgment of sentence and remand
        for re-sentencing.

Trial Court Opinion, 6/26/2014, at 5-6.      Upon review, we agree.     Thus,

while we deny Appellant relief on his presented claims, we vacate his

judgment of sentence and remand for re-sentencing only for the trial court

to correct the sentencing errors as set forth above.

      Convictions affirmed. Judgment of sentence vacated. Remanded for

re-sentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2015



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