J-S49043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY SPRINGS                            :
                                               :
                       Appellant               :   No. 2109 EDA 2017

              Appeal from the Judgment of Sentence June 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003448-2016


BEFORE:      BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 17, 2019

        Appellant, Gregory Springs, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after a jury found

him guilty of third-degree murder and numerous firearm offenses stemming

from his involvement in a neighborhood fight that ended when he shot a man,

Frank Jones, to death. He raises for our consideration issues implicating the

weight of the evidence and the discretionary aspects of his standard range

sentence. We affirm.

        The trial court has authored an opinion that aptly sets forth the relevant

facts and procedural history, as follows:

        FACTS

        [The victim,] Frank Jones[,] lived at 4673 North 16th Street in the
        City of Philadelphia with his live-in girlfriend, Tiffany Newton, and
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     their four children. On March 14, 2016, Jones had just gotten out
     of the shower when he heard a knock at the front door. Looking
     out the upstairs window, he saw that it was his neighbor, Kaniesha
     Johnakin, [and] her friend Megan Jones-Hilliard in front of his
     house. Newton answered the door. N.T. 3/15/17, at 78-84.
     Entering the house, Johnakin was upset, cursing, and [causing
     discord]. It seems that her boyfriend, Joe, [who was] working
     construction in Scranton, phoned her [and began to argue] with
     her that he knew [she] had another man in the house [and that
     the man] drove a white Chevy Malibu. Johnakin assumed that . .
     . Frank Jones[] had gotten word to Joe that [she] was cheating on
     him. Newton explained to Johnakin and Jones-Hilliard that they
     had to leave, as there were four young children upstairs getting
     ready for bed, and said that the intruders must get out. N.T.
     3/15/17, at 81-92, 215-218.

     Johnakin and Jones-Hilliard left the house, but Johnakin continued
     her cursing and yelling and threatening Newton on the yard
     between the houses. [It was then that] Appellant came out of
     Johnakin’s house and, without saying a word, punched Frank
     Jones in the face. A fight ensued between the two men and then
     a battle erupted between Johnakin and Newton. N.T. 3/15/17, at
     90-101, 220-224. The brawl between the two men broke up and
     Frank Jones then attempted to stop the scuffle between the two
     women.

     Appellant returned to Johnakin’s house as Frank Jones was pulling
     Newton out of her bout with Johnakin, which Jones-Hilliard had
     joined. N.T. at 100-105. Appellant came back out of Johnakin’s
     house [with a] gun in [his] hand, walked down three steps from
     the porch of the house and fired eight shots, all at Frank Jones.
     N.T. at 100-110, 223-226.

     Jones was wounded in his chest, hip, genitals, stomach, legs, and
     arm. [He] tried to get away, struggling down the street, where
     he finally collapsed. N.T. at 110-115, 188-198. Newton dialed
     911 and the police responded quickly, finding Jones collapsed near
     the porch of a neighbor. Realizing the urgency, the officers did
     not wait for the medics, but scooped Jones up and drove him to
     Einstein Hospital where he was rushed into surgery. . . . Jones
     died of the gunshot wounds at 3:05 a.m. the next morning. N.T.
     51-55, 184-85.




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        In the meantime, Appellant had fled out the back door of
        Johnakin’s house, leaving his white Chevy Malibu at the crime
        scene. N.T. 3/16/17, at 16-17, 21-23. Appellant was identified
        by Johnakin, Jones-Hilliard, and Newton as the shooter.
        [Appellant fled to Atlanta, Georgia, but authorities arrested him in
        Philadelphia one week later with the aid of an anonymous tip that
        he was returning by bus].

        ...

        PROCEDURAL HISTORY

        Appellant was arrested and charged with murder, possession of a
        firearm prohibited, firearm not to be carried without a license,
        carrying firearms in public in Philadelphia, recklessly endangering
        another person and possessing an instrument of a crime on March
        22, 2016. Appellant was bound over for court on all charges
        following a preliminary hearing on April 5, 2016. A jury convicted
        Appellant of third degree murder, carrying a firearm without a
        license, carrying firearms in public in Philadelphia and possessing
        the instrument of a crime, and he was subsequently sentenced to
        twenty to forty years’ incarceration for the homicide with a
        consecutive two and one-half to five years’ imprisonment for
        carrying a firearm without a license to be followed by five years’
        probation on the remaining charges. The aggregate sentence was
        twenty-two and one-half to forty-five years’ incarceration followed
        by ten years’ probation. Post-sentence motions were filed and
        denied. A timely notice of appeal was filed with the Superior
        Court.

Trial Court Opinion, 8/6/18, at 3-4, 1-2.

        Appellant raises the following issues for our review:

   1.    [Was] the guilty verdict against the Appellant . . . against the
         weight of the evidence [so as to] shock the conscience[?]

   2.    [Was] the sentence imposed on the Appellant . . . excessive in light of
         all the circumstances[?]

Appellant’s brief, at 5.




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      First, Appellant contends that the court erred in denying his post-

sentence motion for a new trial where the weight of the evidence did not allow

for the reasonable inference that he shot Frank Jones with requisite malice.

We disagree.

      A weight of the evidence challenge “concedes that there is sufficient

evidence to sustain the verdict.” Commonwealth v. Rayner, 153 A.3d 1049,

1054 (Pa.Super. 2016) (citation omitted). Our standard of review for a claim

that the verdict was against the weight of the evidence is as follows:

      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.
      It has often been stated that a new trial should be awarded 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

      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

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           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.

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

quotation marks omitted) (emphasis in original). “Discretion is abused where

the course pursued [by the trial court] 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. Widmer, 744 A.2d

745, 753 (Pa. 2000).

     The Crimes Code defines murder as follows:

     § 2502. Murder

     (a)   Murder of the first degree.—A criminal homicide
           constitutes murder of the first degree when it is committed
           by an intentional killing.

     (b)   Murder of the second degree.—A criminal homicide
           constitutes murder of the second degree when it is
           committed while defendant was engaged as a principal or
           an accomplice in the perpetration of a felony.

     (c)   Murder of the third degree.—All other kinds of murder
           shall be murder of the third degree. Murder of the third
           degree is a felony of the first degree.

     ***

18 Pa.C.S.A. § 2502(a)-(c).

     To establish the offense of third degree murder, the
     Commonwealth need only prove beyond a reasonable doubt that
     the defendant killed an individual, with legal malice, “i.e., ...
     wickedness of disposition, hardness of heart, wantonness, cruelty,
     recklessness of consequences, or a mind lacking regard for social
     duty.”   Commonwealth v. Johnson, 719 A.2d 778, 785

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      (Pa.Super. 1998), appeal denied, 559 Pa. 689, 739 A.2d 1056
      (1999) (citing Commonwealth v. Young, 494 Pa. 224, 227, 431
      A.2d 230, 232 (1981) (holding sufficient evidence of malice
      existed to sustain third degree murder conviction, where
      defendant aimed loaded gun at victim and gun discharged,
      regardless of whether gun discharged accidentally or defendant
      intended only to scare victim)). Malice is established where an
      “actor consciously disregard[s] an unjustified and extremely high
      risk that his actions might cause death or serious bodily harm.”
      Id. at 228, 431 A.2d at 232.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).

      Specifically, Appellant centers his weight of the evidence claim on the

respective testimonies of Tiffany Newton and Kaniesha Johnakin, who

recounted that Appellant first aimed the gun downward, below Jones’ waist,

when he fired several shots into Jones before Jones approached him, at which

time he fired additional shots that struck Jones’ torso. The Commonwealth

counters that Appellant’s act of shooting Jones eight times under the

circumstances, causing his death, reflected malice even if a number of shots

were fired at Jones’ lower body. See Commonwealth v. Fisher, 80 A.3d

1186, 1194 (Pa. 2013) (acknowledging fatally shooting one in the leg is

“classic third degree murder”) (quoting Commonwealth v. Roebuck, 32

A.3d 613, 624-25 (Pa. 2011) (Eakin, J., concurring)).

      For its part, the trial court viewed the evidence and concluded “Appellant

had left the area of the altercation, deliberately went into his house, retrieved

a loaded gun, returned to the yard and shot Frank Jones. This was not self-

defense, nor was it in the heat of passion.” Trial Court Opinion, 8/6/18, at 5.

In light of both pertinent authority and the record, which includes evidentiary



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support for the jury’s finding that Appellant committed a malicious act

regardless of the consequences and directly resulting in the death of Jones,

we discern no abuse of discretion with the trial court’s rejection of Appellant’s

post-sentence weight of the evidence claim.

      In Appellant’s second issue, he challenges the court’s exercise of

sentencing discretion in imposing a standard range sentence for third-degree

murder where, he again posits, evidence of malice was lacking. It is well-

established that “[a] challenge to the discretionary aspects of sentencing does

not entitle an appellant to review as of right.” Commonwealth v. Bynum–

Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016).           In order to invoke this

Court's jurisdiction to address such a challenge, the appellant must satisfy the

following four-part test: the appellant must (1) file a timely notice of appeal

pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing or in a

timely post-sentence motion pursuant to Pa.R.Crim.P. 720; (3) ensure that

the appellant's brief does not have a fatal defect as set forth in Pa.R.A.P.

2119(f); and (4) set forth a substantial question that the sentence appealed

from is not appropriate under the Sentencing Code under 42 Pa.C.S.A. §

9781(b). Id.

      While Appellant filed a timely notice of appeal and preserved his

sentencing claim in a post-sentence motion, the Commonwealth objects to his

failure to include a Rule 2119(f) statement in his appellate brief.        When

challenging the discretionary aspects of sentence, “an appellant must include

in his or her brief a separate concise statement demonstrating that there is a

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substantial question as to the appropriateness of the sentence under the

Sentencing Code.         Commonwealth v. Griffin, 149 A.3d 349, 353–54

(Pa.Super. 2016) (citation omitted). “Where an appellant fails to comply with

Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived for

purposes of review.” Commonwealth v. Montgomery, 861 A.2d 304, 308

(2004). In this case, the Commonwealth's objection to Appellant's failure to

adhere to our rules requiring inclusion of a Rule 2119(f) statement in his

appellate brief results in the waiver of Appellant's sentencing claim on appeal.1

       Judgment of sentenced affirmed.
    Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/19



____________________________________________


1 Even if we were to forego finding waiver, we still would conclude Appellant
fails to raise a substantial question with the propriety of his standard range
sentence, as he merely resubmits his failed weight of the evidence argument
that he acted without malice. This argument lacks relevance to the sentencing
inquiry a proper discretionary aspects claim would prompt. See, e.g.,
Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (holding
substantial question raised by claim court improperly based aggravated range
sentence on factor constituting element of the offense); Commonwealth v.
Ritchey, 79 A.2d 1183, 1186 (Pa.Super. 2001) (holding substantial question
raised by claim court provided insufficient reasons for sentence and relied
solely on seriousness of offense).


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