J-S82028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LYDELL JOHNSON                           :
                                          :
                    Appellant             :   No. 1849 EDA 2017

            Appeal from the Judgment of Sentence June 19, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001125-2012


BEFORE:    LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 18, 2019

      Appellant, Lydell Johnson, appeals from the judgment of sentence

entered on June 19, 2014, as made final by the denial of his post-sentence

motion on July 31, 2014. We affirm.

      On September 28, 2011, Appellant and his friend, Aaron Devine

(“Devine”), lost a fight on the streets of Philadelphia. Appellant and Devine

retrieved firearms from a residence and returned to the scene of the fight

where they opened fire. One shot struck a bystander. Devine fired additional

shots while fleeing and one shot struck a different individual.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        On April 23, 2014, Appellant was convicted of two counts of aggravated

assault,1 two counts of recklessly endangering another person,2 carrying a

firearm without a license,3 possession of a firearm by a prohibited person,4

carrying a firearm on the streets of Philadelphia,5 possessing an instrument of

crime,6 and conspiracy to commit aggravated assault.7 On June 19, 2014, the

trial court sentenced him to an aggregate term of 23 to 46 years’

imprisonment. On June 27, 2014, Appellant filed a post-sentence motion. On

July 31, 2014, the trial court denied that motion.

        On April 7, 2015, Appellant filed a petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, seeking

reinstatement of his direct appeal rights nunc pro tunc. On May 8, 2017, the

PCRA court granted the petition and reinstated Appellant’s direct appeal rights

nunc pro tunc.8 This appeal followed.

____________________________________________


1   18 Pa.C.S.A. § 2702(a).

2   18 Pa.C.S.A. § 2705.

3   18 Pa.C.S.A. § 6106(a)(1).

4   18 Pa.C.S.A. § 6105(a)(1).

5   18 Pa.C.S.A. § 6108.

6   18 Pa.C.S.A. § 907(a).

7   18 Pa.C.S.A. §§ 903, 2702.

8We note the excessive 25-month delay between the filing of Appellant’s PCRA
petition and the reinstatement of his direct appeal rights nunc pro tunc.


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      Appellant presents one issue for our review:

      Is [Appellant] entitled to an [a]rrest of [j]udgment on all charges
      where the evidence is insufficient to sustain the verdict and where
      the evidence did not prove that [Appellant] was a perpetrator of
      the crime or a conspirator to the crime?

Appellant’s Brief at 3.

      We review a challenge to the sufficiency of the evidence de novo and

our scope of review is plenary. In the Interest of J.B., 189 A.3d 390, 414

n.24 (Pa. 2018) (citation omitted).      In assessing Appellant’s sufficiency

challenge, we must determine “whether, viewing all the evidence admitted at

trial in the light most favorable to the [Commonwealth], there is sufficient

evidence to enable the fact-finder to find every element of the crime beyond

a reasonable doubt.” Commonwealth v. Cramer, 195 A.3d 594, 601 (Pa.

Super. 2018) (cleaned up). The evidence “need not preclude every possibility

of innocence. . . . 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. Thomas, 194 A.3d 159, 166

(Pa. Super. 2018) (cleaned up).

      Contrary to Appellant’s argument, he was not convicted because he was

in the vicinity on the crime. Similarly, Appellant was not convicted because

he was wearing black clothes and the shooter was wearing black clothes.

Instead, there was overwhelming eyewitness evidence that Appellant was the

shooter.




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      At trial, Roger Bender (“Bender”) testified that he witnessed the

shooting in question. N.T., 4/15/14, at 70-71. Bender testified that he was

standing approximately one-third of a city block from the shooting and that

nothing was blocking his view of the shooting. Id. at 70. When asked who

the shooter was, he responded that it was Appellant. Id. at 71. Bender then

explained that he saw the firearm in Appellant’s hands and he saw Appellant

firing the shots. Id. at 71-72.

      Sandra Delusant (“Delusant”) also testified at trial. She testified that

she saw Appellant fire the shots in question. Id. at 122. She testified that

she was certain that Appellant was the shooter because she had seen him

daily for the past year. Id. Delusant also explained that she saw Appellant

holding the firearm on the same side of the street on which she was standing

and she witnessed him fire that weapon. Id. at 123.

      Appellant argues that Bender’s and Delusant’s testimony was so

unreliable as to constitute insufficient evidence to convict him. First, we note

that an argument that testimony is unreliable and not to be believed goes to

the weight of the evidence and not its sufficiency. Commonwealth v. Gibbs,

981 A.2d 274, 281-282 (Pa. Super. 2009), appeal denied, 981 A.2d 274 (Pa.

2010). Appellant failed to raise a claim in his 1925(b) statement challenging

the weight of the evidence. Thus, this claim is waived. Commonwealth v.

Hill, 16 A.3d 484, 494 (Pa. 2011) (issues not raised in a Rule 1925(b)

statement are deemed waived). Moreover, even if we consider whether the


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eyewitnesses’ testimony was sufficient to convict Appellant, we conclude that

it is. As detailed above, Bender and Delusant both had unobstructed views of

Appellant firing the shots in question. They were both confident that Appellant

was the shooter. Delusant was familiar with Appellant because she had seen

him every day for the past year.     Hence, we conclude that Bender’s and

Delusant’s eyewitness testimony was sufficient to establish that Appellant was

the shooter.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/19




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