J-S23023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC WILLIAM                               :
                                               :
                        Appellant              :   No. 1685 EDA 2017

              Appeal from the Judgment of Sentence May 17, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008144-2015


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 29, 2018

        Appellant Eric William1 appeals from the judgment of sentence of life

imprisonment imposed after a jury found him guilty of first-degree murder,2

carrying a firearm without a license,3 and possession of an instrument of

crime.4 Appellant claims that the trial court erred in (1) denying his motion

for continuance in order to obtain his preferred counsel; (2) admitting color

photographs of a witness whom Appellant attacked while in pretrial custody;

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 Although Appellant spelled his last name as “Williams” in open court, we
retain the original caption of this appeal so that it conforms to the trial court’s
record.

2   18 Pa.C.S. § 2502(a).

3   18 Pa.C.S. § 6106.

4   18 Pa.C.S. § 907.
J-S23023-18



and (3) overruling his objection to the prosecutor’s conduct during closing

arguments. Additionally, Appellant challenges the weight and sufficiency of

the evidence. We affirm.

       On May 29, 2015, Appellant was charged with murder generally, three

firearms offenses, and possessing an instrument of crime for the killing of

Bryant Younger (Decedent). On June 19, 2015, W. Fred Harrison, Jr., Esq.

entered an appearance as Appellant’s private counsel.       Attorney Harrison

apparently remained counsel of record until September of 2015. The docket

then indicated that Appellant “failed to retain counsel.”    Present counsel,

Stephen Thomas O’Hanlon, Esq. (trial counsel) was appointed to represent

Appellant and requested continuances from September 15, 2015, to January

12, 2016.

       The docket indicates that on February 23, 2016, Appellant rejected a

plea offer, and trial was scheduled for October 24, 2016.     On October 17,

2016, the trial court ordered a continuance to May 8, 2017, due to an

outstanding DNA report and the court’s unavailability.

       At some time prior to trial, trial counsel apparently informed the court

that Appellant wanted private counsel to enter an appearance.5 See N.T.,

5/8/17, at 5-6.       The trial court denied that request because Appellant’s

preferred counsel would not be available until the following year. See id.
____________________________________________


5 The record does not show when trial counsel discussed a continuance for
private counsel to enter an appearance or the contents of trial counsel’s
communication with the trial court. No formal motion or an order denying
such motion was entered into the record.

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      On May 8, 2017, before jury selection, Appellant requested a

continuance to replace trial counsel with private counsel. Id. The trial court

denied the request for continuance on the record, and Appellant proceeded to

trial represented by trial counsel.

      The trial court summarized the evidence presented at trial as follows:

      [O]n May 10, 2015, at around 12:15 a.m., Police Officer
      Christopher Thompson and his partner, Police Officer Joseph.
      Hodge, were on patrol near the 1200 block of Atlantic Street. They
      heard a “pop” sound, which suggested a muffled gun shot. They
      drove around and observed a person running from a silver Dodge
      Avenger. The officers proceeded to the vehicle, where they
      observed the body of [Decedent], who was bleeding, but still alive.
      The officers transported [Decedent] to the nearest hospital, where
      he expired.

      Assistant United States Attorney Leo Tsao testified that about a
      decade earlier, [Decedent] had aided Federal officials in building
      a case against [Appellant]. [Appellant] ultimately pleaded guilty
      and went to prison. In consideration for his cooperation,
      [Decedent] received a reduced sentence.

      Police recovered a wallet containing [Appellant’s] identification
      from the vehicle. Police also recovered a Taurus .38 six shot
      revolver, and two fired cartridge cases from the left rear seat of
      the vehicle.

      Brian Gaeta testified that after hearing two shots, he looked out
      his window and saw a man standing by a vehicle. He did not see
      any other people on the scene. At trial and at a police photo array,
      he identified [Appellant] as having been on the scene. He was
      unable to identify a suspect at a police lineup. Testifying for the
      defense, the lineup supervisor, Detective William Urban stated
      that [Appellant] was in a lineup conducted on August 10, 2015
      and that Mr. Gaeta did not pick out [Appellant] or any other person
      in the lineup.

      Dr. Albert Chu, Chief Deputy Medical Examiner, testified that
      [Decedent] suffered two shots through his brain. The manner of
      death was homicide.


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      Latavia Hudson testified that at the time of the offense, she was
      in a relationship with [Appellant]. A 2011 Dodge Avenger was
      registered in both of their names. She testified that on May 9,
      2015, [Appellant] took the Dodge Avenger, drove away and never
      returned with the car.

      Officer Gregory Welsh, of the Firearms Identification Unit, testified
      that two bullets recovered from [Decedent]’s brain were fired from
      the Taurus revolver found in the Dodge Avenger.

      Benjamin Sapir Levin, who works in the DNA laboratory of the
      Police Department’s Office of Forensic Science, testified that
      [Appellant’s] DNA was found on the Taurus revolver.

      It was stipulated that Police Officer Jason Stark of the Crime Scene
      Unit recovered [Appellant]’s latent finger prints from the left rear
      door frame and the right rear door frame of the Dodge Avenger.

      It was stipulated that [Appellant] was not licensed to carry a
      firearm.

      Testifying for the defense, Detective Theodore Hagan of the
      Homicide Unit, stated that three cellular telephones had been
      recovered from the Dodge Avenger. One telephone was owned by
      [Appellant]; the second telephone was owned by [Decedent]; and
      the third telephone was owned by a man named Aquil Sowell.

      [Appellant] testified that he had no animus toward [Decedent]. He
      told the jury that on the evening of May 9, 201[5], [Appellant]
      and [Decedent] picked up “Ace” (presumably Aquil Sowell) in
      connection with a drug transaction. As they drove to Atlantic
      Street, a dispute broke out between Ace and [Decedent].
      [Appellant] said that he stopped the car and got out to avoid
      hearing the argument. [Appellant] claimed that he heard two
      shots and saw Ace get out of the car and run away. [Appellant]
      testified that he also ran away.

Trial Ct. Op., 11/27/17, at 7-10.

      The Commonwealth called Sylvester Ellis, Decedent’s stepfather, in

rebuttal. Ellis testified that he was incarcerated in Philadelphia County Prison,

where Appellant was in custody for the instant charges. According to Ellis, on

November 26, 2015, while they were in county prison, Appellant assaulted

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him and made a statement indicating that he killed Decedent. The trial court,

over Appellant’s objections, permitted the Commonwealth to publish two color

photographs of Ellis following the attack. The photographs showed Ellis in a

neck brace, with a tube in his mouth, and with swelling and blood on his face.6

       Toward the end of the Commonwealth’s closing argument, the

prosecutor asked the jury to “return the only verdict that speaks the truth and

have the courage to say, as I do right now.”       N.T., 5/17/17, at 44.    The

prosecutor immediately thereafter addressed Appellant, stating: “for what you

did . . . on May 10th . . . in 2015 for when you took that .38 caliber revolver,

you put if within six inches of [Decedent’s] head and you pulled the trigger

not once but twice, sir, you are guilty.” Id. Appellant’s counsel objected,

noting that the prosecutor, when making those statements, raised his voice,

approached within five feet of Appellant, and pointed at Appellant. Id. at 76.

The court overruled Appellant’s objection.

       On May 17, 2017, the jury found Appellant guilty of first-degree murder,

carrying a firearm without a license, and possession of an instrument of crime.

The trial court sentenced Appellant that same day to life imprisonment for

first-degree murder and concurrent terms of imprisonment for the remaining

offenses.7
____________________________________________


6The Commonwealth did not attempt to admit or publish another photograph,
which depicted a wound to Decedent’s stepfather’s scrotum.

7Specifically, the trial court imposed concurrent sentences of three-and-one-
half to seven years for carrying a firearm without a license and two-and-one-
half to five years for possessing an instrument of crime.

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      Appellant challenged the weight of the evidence in a timely post-

sentence motion. The trial court denied the motion on May 25, 2017.

      Appellant timely filed a notice of appeal, and after obtaining an

extension of time, complied with the trial court’s order to submit a Pa.R.A.P.

1925(b) statement. The trial court filed a responsive opinion.

      Appellant presents the following questions for review:

      1. Was Appellant denied his Sixth Amendment right to counsel of
      his choice because the trial court denied Appellant a continuance
      so that Appellant’s counsel of choice could be prepared and ready
      to represent Appellant at trial?

      2. Did the trial court abuse its discretion by allowing inflammatory
      color photographs of a witness that was injured by Appellant while
      Appellant was in pretrial custody?

      3. Did the trial court abuse its discretion by allowing the
      prosecutor to engage in misconduct when the prosecutor was
      allowed to stand a few feet from Appellant during closing
      argument and when the prosecutor repeatedly pointed and
      shouted directly at Appellant?

      4. Is Appellant’s conviction for first-degree murder against the
      weight of the evidence because, inter alia, there was no
      eyewitness testimony, because people knew that Appellant was
      with Decedent so there is a lack of prior planning, and the revenge
      motive is questionable because Appellant and Decedent had
      previously socialized without incident?

      5. Was there insufficient evidence to convict for first-degree
      murder because there was no eyewitness testimony, because
      people knew that Appellant was with Decedent so there is a lack
      of prior planning, and the revenge motive is questionable because
      Appellant and Decedent had previously socialized without
      incident?

Appellant’s Brief at 4-5.




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      Appellant first claims that the trial court erred in denying his request for

a continuance to retain private counsel. By way of background, the record

contains the following discussion on the day of jury selection.

      [Appellant]: A while ago, I dismissed O’Hanlon [trial counsel] as
      my lawyer.

      THE COURT: Well, is he someone that you retained?

      [Appellant]: Yes, Mr. --

      [Trial counsel]: No. Am I someone that you retained?

      [Appellant]: Mr. Harris.

      THE COURT: Mr. O’Hanlon, was he retained by you?

      [Appellant]: He was court-appointed.

      THE COURT: Okay.

      [Appellant]: I wanted a private counsel.

      THE COURT: Well, have you -- how long ago did you make that
      decision?

      [Appellant]: I was told by Mr. O'Hanlon that you denied Fred
      Harrison, Jr. as being my attorney because it was -- the case was
      going on too long.

      THE COURT: That’s correct. Now my memory is refreshed, and
      that request was made much too close to the trial date, and Mr.
      Harrison indicated that he could not be ready. His own schedule
      was such that he was tied up and could not try this case if he
      remained as counsel, if he became your counsel, until next year,
      sometime in February or March of next year. So I denied the
      request. If he were ready, I would have granted it.

      [Appellant]: The only issue I’m having right now is that me and
      Mr. O’Hanlon is not seeing eye-to-eye. This is my life. This ain’t
      a 5-to-10 or a 10-to-20 where I’m going home. This is if I lose,
      it’s over.

      THE COURT: I realize what the charges are, yes.



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      [Appellant]: If we continue with him as my lawyer, it’s going to
      be ineffective counsel because I am not communicating with him
      no more about my case. I don’t want nothing to do with it. I am
      not communicating with him.

      THE COURT: That’s a decision you have to make, but it will be on
      you. My advice to you is you communicate with Mr. O’Hanlon and
      you assist in the trial of your case. But if your perspective is that
      you refuse to do that, it’s on you. That’s not ineffective assistance
      of counsel, that’s ineffective cooperation with counsel. It's a
      difference.

      [Appellant]: He is just -- like I understand that this case has been
      drawn along. I have been arrested since May the 28th, 2015. I
      understand that it’s been over two years. But I really need Mister
      -- I really need private counsel. Like, I really need it. Like, if I
      have to wait until next year -- I am the one that’s going to be
      incarcerated. Like, I understand that.

      THE COURT: I understand. Mr. O’Hanlon, are you prepared to try
      this case?

      MR. O’HANLON: Yes, I am.

      THE COURT: All right. Then this case is going to go forward and
      we’re going to begin jury selection today.

N.T., 5/8/17, at 5-8.

      The trial court, in its Rule 1925(a) opinion, explained its decision to deny

the requested continuance as follows:

      The docket entries show that [trial counsel] entered his
      appearance on September 9, 2015. The last listing prior to trial
      was October 26, 2016, at which time the Commonwealth’s [plea]
      offer was rejected and the case was continued until [the trial date
      of] May 8, 2017. [Appellant] had sufficient time to retain a lawyer
      who would have been available for the trial date. This court
      cannot allow a defendant to upset the court calendars and delay
      the administration of justice. [Appellant] failed to exercise his
      right to choose a lawyer. . . . . Therefore, the request to substitute
      counsel on the day of trial was properly denied.

Trial Ct. Op. at 4.

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      Appellant argues that the trial court violated his right to his choice of

counsel under the Sixth Amendment of the United States Constitution and

Article I, Section 9 of the Pennsylvania Constitution. Appellant’s Brief at 10-

11 (citation omitted). Appellant asserts that the trial court failed to accord

“sufficient deference to Appellant’s constitutional right to counsel of his choice”

and overemphasized the “efficiency of court calendaring[.]” Id. at 11.

      The principles governing our review of Appellant’s claim are set forth in

Commonwealth v. Prysock, 972 A.2d 539 (Pa. Super. 2009):

      [A] trial court’s decision to deny a request for a continuance

         will be reversed only upon a showing of an abuse of
         discretion. As we have consistently stated, an abuse of
         discretion is not merely an error [in] judgment. Rather,
         discretion is abused when “the law is overridden or
         misapplied, or the judgment exercised is manifestly
         unreasonable, or the result of partiality, prejudice, bias, or
         ill-will, as shown by the evidence or the record. . . .”

      With respect to the right to counsel, The Supreme Court of
      Pennsylvania has stated:

         [t]he right to counsel is guaranteed by both the Sixth
         Amendment to the United States Constitution and by Article
         I, Section 9 of the Pennsylvania Constitution. In addition to
         guaranteeing representation of the indigent, these
         constitutional rights entitle an accused “to choose at his own
         cost and expense any lawyer he may desire.” The right to
         “counsel of one’s own choosing is particularly significant
         because an individual facing criminal sanctions should have
         great confidence in his attorney.”

         We have held, however, that the constitutional right to
         counsel of one’s choice is not absolute. Rather, “the right of
         the accused to choose his own counsel, as well as the
         lawyer’s right to choose his clients, must be weighed against
         and may be reasonably restricted by the state’s interest in
         the swift and efficient administration of criminal justice.”

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         Thus, this Court has explained that while defendants are
         entitled to choose their own counsel, they should not be
         permitted to unreasonably “clog the machinery of justice or
         hamper and delay the state’s efforts to effectively
         administer justice.” At the same time, however, we have
         explained that “‘a myopic insistence upon expeditiousness
         in the face of a justifiable request for delay can render the
         right to defend with counsel an empty formality.’”

Prysock, 972 A.2d at 541-42 (citations omitted).

      In Prysock, the defendant was charged in May 2007. Id. at 540. Trial

was scheduled for August 2007, even though counsel was not appointed. Id.

The trial court appointed counsel and continued the trial date to November

2007. Id. Immediately before jury selection on November 1, 2007, appointed

counsel informed the court that the defendant was dissatisfied with counsel’s

representation and wished to retain private counsel. Id. The trial court denied

the request for a continuance and directed jury selection to begin. Id. The

defendant continued to express his dissatisfaction with appointed counsel

following the first day of jury selection, and he again requested a continuance

to obtain private counsel. Id.

      The next day, private counsel attempted to enter an appearance. Id.

However, private counsel asserted that he was not prepared for trial and

requested a continuance of jury selection and trial. Id. The trial court denied

private counsel’s request for a continuance, and the defendant proceeded




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through the remainder of jury selection and trial with appointed counsel.8 Id.

at 541.

         Following his conviction, the defendant appealed to this Court asserting

that the trial court erred in denying his requests for continuances to obtain

private representation. The Prysock Court agreed and remanded for a new

trial.

         In reversing the trial court, the Prysock Court reviewed several factors

including (1) the lack of “an ‘extensive inquiry’ into the underlying defendant’s

dissatisfaction    with    current    counsel”;    (2)   whether   the   defendant’s

dissatisfaction with counsel amounted to “‘irreconcilable difference’”; (3) “the

number of prior continuances”; (4) “the timing of the motion” for continuance;

(5) “whether private counsel had actually been retained”; and (6) the

readiness of private counsel to proceed in a reasonable amount of time. Id.

at 543. Following its review, the Prysock Court concluded that the trial court

failed to engage in an appropriate balancing of the defendant’s constitutional

right to retain counsel against the Commonwealth’s interest in the swift

administration of justice. Id. at 544.

         Instantly, Appellant stated that he was not comfortable with trial

counsel, that they were not “seeing eye-to-eye,” and that he wished to

____________________________________________


8 The Court further noted that the defendant’s “difficulties with appointed
counsel pervaded every aspect of the trial, as [the defendant] objected to
counsel’s handling of jury selection, his handling of the suppression hearing,
his questioning of witnesses at trial, and his refusal to call requested character
witnesses.” Prysock, 972 A.2d at 545.

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proceed with private counsel. N.T., 5/8/17, at 7. However, Appellant did not

articulate any grounds to find an irreconcilable difference with trial counsel.

         The record also shows there were numerous continuances prior to trial,

and nearly two years had passed since Appellant was charged. Although it is

unclear when Appellant first requested that private counsel replace trial

counsel, there is no indication that Appellant did more than express an interest

in having private counsel enter into the case.       Significantly, the trial court

indicated that private counsel would not be ready to proceed until February of

the next year, approximately least nine months from the scheduled start of

trial.

         Based on the totality of the foregoing circumstances, we conclude that

the trial court assessed the appropriate factors when considering Appellant’s

requests for a continuance and private counsel. See Prysock, 972 A.2d at

543-44.      The trial court’s balancing of the swift administration of justice

against Appellant’s right to choice of counsel did not evince a myopic

insistence of expeditiousness over a justified request for further delays. See

id. at 542, 543. Accordingly, we discern no abuse of discretion in the trial

court’s denial of Appellant’s request for a continuance to retain private

counsel. See id. at 541.

         Appellant’s second claim assails the trial court’s rulings permitting the

Commonwealth to publish photographs of the injuries Appellant inflicted on

Decedent’s stepfather, Sylvester Ellis.      Appellant contends that trial court

erred in admitting inflammatory color photographs that were cumulative of

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Ellis’ rebuttal testimony. Appellant’s Brief at 13. He further contends that the

trial court should have excluded the photographs of the injuries because they

“showed that Appellant had a propensity for inflicting serious injury.” Id.

      Our standards of review are well settled.

      Where a photograph “possesses gruesome or inflammatory
      qualities likely to inflame the passions of the viewer” a trial court
      must not merely exclude them based on those qualities, but must
      determine whether their “essential evidentiary value . . . clearly
      outweighs the likelihood of inflaming the minds and passions of
      the jurors.” A trial court’s determination in that regard must be
      affirmed unless the trial court has abused its discretion.

Commonwealth v. Lyons, 79 A.3d 1053, 1069 (Pa. 2013) (citations

omitted). Additionally, the presentation of testimony as to a person’s injuries

“does not render photographs per se inadmissible.”           Commonwealth v.

Johnson, 42 A.3d 1017, 1034 (Pa. 2012) (citations omitted).

      Instantly, the Commonwealth introduced Ellis’ testimony that Appellant

attacked him and stated he was going to kill Ellis as he did Decedent as

rebuttal evidence. Specifically, the Commonwealth introduced the evidence

to counter Appellant’s testimony that he harbored no ill-will against Decedent

and that a third individual in the car shot the Decedent. N.T., 5/17/17, at 38-

40. Additionally, the Commonwealth asserted that Appellant attempted to

“eliminate a witness” to whom Appellant made an admission.         N.T., 5/8/17,

at 117.   The Commonwealth published the photographs to the jury during

Ellis’ account of the attack and the injuries he suffered.




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      The photographs illustrated the extent of the injuries Appellant inflicted,

and the mere fact that Ellis testified to the attack does not obviate the

admissibility of the pictures.     See Johnson, 42 A.3d at 1034.            While

unpleasant, they were not unduly gruesome or inflammatory.             Thus, we

discern no basis to disturb the trial court’s ruling that the publication of the

photographs to establish the extent of Ellis’ injuries clearly outweighed the

possibility of prejudice. See Lyons, 79 A.3d at 1069.

      Appellant, in his third claim, challenges the Commonwealth’s conduct at

the end of its closing argument, when the prosecutor “stood within five feet

of Appellant and repeatedly pointed and shouted at Appellant.” Appellant’s

Brief at 15. Appellant asserts that “such zealous and personal condemnation”

affixed prejudice in the minds of the jury. Id.

      We review a claim of prosecutorial misconduct to determine whether the

trial court abused its discretion in considering the nature of the misconduct

and the degree of any resulting prejudice. Commonwealth v. Judy, 978

A.2d 1015, 1019 (Pa. Super. 2009). As to the alleged misconduct, “[i]t is well

settled that a prosecutor has considerable latitude during closing arguments

and his arguments are fair if they are supported by the evidence or use

inferences that can reasonably be derived from the evidence.” Id. at 1020

(citation omitted).   Prosecutorial misconduct will not be found based on

oratorical flair or if the conduct at issue did not prejudice the jury by impeding

their ability to weigh the evidence objectively and render a true verdict. Id.




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      In Commonwealth v. Culver, 51 A.3d 866 (Pa. Super. 2012), this

Court affirmed a trial court’s ruling that the defendant was entitled to a new

trial due to the cumulative effect of several instances of prosecutorial

misconduct. Culver, 51 A.3d at 872, 882. Specifically, in Culver, the trial

court found that the prosecutor (1) despite the court’s admonitions, continued

to intimidate the defendant by invading the defendant’s and his counsel’s

“personal space” by pointing his finger in their faces and yelling; (2) personally

opined on the credibility of the defendant; and (3) referred to evidence that

was not in the record.     Id. at 872.   Discussing the prosecutor’s repeated

conduct, this Court noted:

      At best, such behaviors demonstrate a lack of professionalism in
      the courtroom. At worst, they could be interpreted as intentional
      conduct intended to inflame the passions of the jury or to instigate
      a reaction from the defendant or his counsel. What is clear is that
      such behavior has no part in the rational, logical, and
      contemplative evaluation of the evidence that should occur during
      a criminal trial.

      The deprivation of an individual’s liberty should never turn upon
      the theatrical presentation of arguments or evidence, the volume
      and tone of an advocate’s voice, or due to physical acts of
      intimidation. That such behavior occurred in front of a jury only
      serves to increase its potential prejudicial effect. While we might
      presume that a trial judge could resist the prejudicial effect of such
      theatrics, especially where the trial judge had prior experience
      with a particularly dramatic attorney, we cannot assume the same
      when a case is tried before a jury. A jury might well become
      distracted from their task by the theatrics of an over-zealous
      prosecutor. We, therefore, have no reservation in determining
      that the trial court did not abuse its discretion in determining that
      these events contributed greatly to denying . . . a fair and
      impartial trial.

Id. at 875-76.

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      Instantly, Appellant’s suggestion that the prosecutor yelled at Appellant

is not supported in the record. See N.T. 5/17/17, at 76 (indicating that trial

counsel objected based, in part, on the prosecutor’s use of a “slightly raised”

voice). Moreover, the prosecutor’s “do as I do now” argument, which was

accompanied by the prosecutor pointing a finger within five feet of Appellant,

did not personally opine on the credibility of any witness or serve to intimidate

the defense. The trial court was in the best position to observe prosecutor’s

conduct and tone and concluded that the prosecutor merely used a “raised

voice” near Appellant and “did nothing to prejudice the jury or impede the

rendering of a true verdict.” Trial Ct. Op. at 6-7.

      Under these circumstances, we conclude that the prosecutor’s limited

theatrics did not exceed the bounds of oratorical flair. See Judy, 978 A.2d at

1019; cf. Culver, 51 A.3d at 875-76. Thus, we have no basis to disturb the

trial court’s conclusion Appellant’s claim did not establish prosecutorial

misconduct.

      Appellant, in his final two claims, raises challenges to the weight and

sufficiency of the evidence.    Appellant’s Brief at 19, 21.    In both claims,

Appellant contends that the case against him was circumstantial as no

eyewitness testified that Appellant shot Decedent. He further argues that the

trial evidence supported his testimony that a third person in this car, Ace,

killed Decedent. Id. at 19, 21. Moreover, Appellant suggests that he could

not have planned, intended, or actually shot Decedent when Decedent’s family

was aware that Decedent was with Appellant when he was killed, the killing

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occurred inside a vehicle associated with Appellant, and Appellant testified

that he harbored no ill-will against Decedent. Id. at 19, 21.

      As noted in Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000), challenges to the sufficiency of the evidence and weight of the evidence

are distinct. See Widmer, 744 A.2d at 751.

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation 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. A trial judge must do more than
      reassess the credibility of the witnesses and allege that he would
      not have assented to the verdict if he were a juror. Trial judges,
      in reviewing a claim that the verdict is against the weight of the
      evidence do not sit as the thirteenth juror. 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.”

                                     ***

      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


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      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.

Id. at 751-53 (citations omitted).

      As to Appellant’s weight of the evidence claim, the trial court noted that

there was ample circumstantial evidence establishing Appellant killed

Decedent. The court specifically referenced the undisputed facts establishing

that Appellant was at the scene of the murder, that Appellant’s DNA was on

the murder weapon, that Decedent had cooperated with federal authorities

against Appellant, and that Appellant assaulted Ellis in prison. Trial Ct. Op. at

11.

      We add that the jury was entitled to reject Appellant’s assertions that a

third person in the car shot Decedent, that Appellant harbored no ill-will

against Decedent, and that Appellant would not have shot Decedent when

Decedent’s family was aware that Decedent was with Appellant at the time of

the shooting. Thus, we discern no basis to disturb the trial court’s conclusion

that the interests of justice did not require a new trial. See Widmer, 744

A.2d at 753.

      As to Appellant’s sufficiency claim, a review of Appellant’s arguments

reveals that Appellant essentially rehashes his weight of the evidence claim.

See Appellant’s Brief at 21. In any event, it is well-settled that

      To sustain a conviction for murder of the first-degree, the
      Commonwealth must prove that: (1) a human being was
      unlawfully killed; (2) the person accused is responsible for the

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       killing; and (3) the accused acted with specific intent to kill.
       “Specific intent may be inferred from the use of a deadly weapon
       on a vital part of the victim’s body.” Also, . . . the period of
       reflection required for premeditation to establish the specific
       intent to kill “may be very brief; in fact the design to kill can be
       formulated in a fraction of a second. Premeditation and
       deliberation exist whenever the assailant possesses the conscious
       purpose to bring about death.”

Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009) (citations

omitted).

       Instantly, the record reveals that Appellant was present at the time of

the shooting and his DNA was on the murder weapon. A witness testified that

he only saw one person, Appellant, fleeing the scene of the murder.           The

victim was shot twice in the head. Thus, there was ample evidence from which

the jury could have concluded that Appellant killed the decedent and that it

was his conscious purpose to bring about death. See id. Thus, no relief is

due.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/18




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