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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
JESSE ENGRAM,                          :          No. 128 WDA 2014
                                       :
                       Appellant       :


        Appeal from the Judgment of Sentence, February 10, 2011,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0015304-2008


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 28, 2015

     Following a jury trial, appellant, Jesse Engram, was convicted of

first-degree murder and carrying a firearm. He now appeals the judgment of

sentence entered on February 10, 2011, in the Court of Common Pleas of

Allegheny County. We affirm.

     The facts, as summarized by the trial court, are as follows.

                   On September 22, 2008, at approximately
           10:40 P.M.[,] Korey Johnson drove into the Sunoco
           gas      station/convenience  store    located      on
           Penn Avenue in the Wilkinsburg section of Allegheny
           County.        Johnson was accompanied by his
           girlfriend[,] Shermaine Campbell, who was seated in
           the front passenger seat of Johnson’s vehicle.
           Johnson was driving a rather distinctive purple GMC
           with heavily tinted windows. He stopped his vehicle
           at pump five with the driver’s side facing Penn
           Avenue and Campbell’s side facing the store itself.
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                As this was occurring[,] [appellant] walked
          across Penn Avenue toward the gas pumps and
          pulled the hood of his sweatshirt over his head.
          [Appellant] pulled a pistol from underneath his
          sweatshirt and walked directly to Johnson’s side of
          the vehicle.     [Appellant] fired once through the
          driver’s side window, which was up. He followed
          that initial shot with eight or nine more shots. The
          window did not shatter, but instead collapsed as one
          piece into the vehicle interior after the first shot.
          After the second shot[,] Campbell opened her door
          and crawled to the store to escape and request
          assistance.

                City of Pittsburgh police officer William Wagner
          was working a plainclothes detail inside the
          convenience store at the time and saw much of the
          event unfold. Officer Wagner immediately emerged
          from the store and pursued [appellant] as he fled
          back across Penn Avenue and behind a building. The
          foot pursuit ended abruptly when [appellant] “cut a
          corner,” and fled down a side street out of
          Officer Wagner’s sight.

                [Appellant] had gotten to the vehicle before
          Johnson could put it in “park,” and the vehicle drifted
          into a gas pump, where it came to rest. Medics
          arrived within minutes and attempted to keep
          Johnson alive for transport and treatment, but he
          was pronounced dead at the scene. Johnson was
          shot five times, suffering fatal gun shot wounds to
          the heart and lung.        Ten 9mm casings were
          recovered at the scene and it was determined that
          the casings were discharged from the same firearm.

                 Campbell, visibly shaken and upset, spoke to
          officers at the scene and stated that she “could not
          believe they shot him,” and when asked specifically
          who shot Johnson, she responded “LL” three times.
          Campbell was taken to the homicide office where she
          was formally interviewed and shown an eight person
          photo array. She immediately identified [appellant]
          as the shooter, writing on the array: “this is who I
          know as LL, this is who shot Korey.”


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Trial court opinion, 7/17/14 at 7-9 (citations to the record omitted).

      Appellant was charged with criminal homicide, firearms not to be

carried without a license, and possession of firearms prohibited; the charge

of possession of a firearm was severed prior to trial and later withdrawn. On

November 8, 2010, appellant proceeded to a jury trial before the Honorable

Edward J. Borkowski and was convicted of both counts.           Appellant was

sentenced to life imprisonment and a consecutive period of two to four

years’ imprisonment. (Notes of testimony, 2/10/11 at 6, 9.)

      On February 22, 2011, appellant filed a timely post-sentence motion,1

which was denied on April 26, 2011. On May 25, 2011, a timely notice of

appeal was filed.     Judge Borkowski ordered appellant to file a concise

statement of errors complained of on appeal. Defense counsel failed to file a

statement, and on April 17, 2012, Christy P. Foreman, Esq., was appointed

for purposes of appeal. A Rule 1925(b) statement was filed, and the trial

court filed an opinion.

      The following issues have been presented for our review.

            I.    WHETHER THE VERDICT IN THIS MATTER WAS
                  AGAINST THE WEIGHT OF THE EVIDENCE[?]

            II.   WHETHER THE VERDICT IN THIS MATTER WAS
                  LEGALLY INSUFFICIENT TO SUSTAIN A

1
  The Pennsylvania Rules of Criminal Procedure provide that “a written
post-sentence motion shall be filed no later than 10 days after imposition of
sentence.” Pa.R.Crim.P. 720(A)(1). Instantly, the 10th day fell on Sunday,
February 20, 2011; and Monday, February 21, 2011, was a holiday. Thus,
appellant’s post-sentence motion was timely filed. See 1 Pa.C.S.A. § 1908.


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                    CONVICTION OF MURDER IN THE FIRST
                    DEGREE AND FIREARMS NOT TO BE CARRIED
                    WITHOUT A LICENSE[?]

            III.    WHETHER THE TRIAL COURT ERRED WHEN IT
                    ALLOWED        SERGEANT        [CHARLES]
                    HENDERSON[2]     TO    TESTIFY    ABOUT
                    MS. CAMPBELL’S   STATEMENTS    TO  THEM
                    UNDER THE EXCITED UTTERANCE EXCEPTION
                    TO THE HEARSAY RULE[?]

Appellant’s brief at 6.

      We    begin    by    reviewing    appellant’s   sufficiency   claim.   When

determining sufficiency of the evidence claims, we must determine whether

the evidence and all reasonable inferences therefrom, viewed in the light

most favorable to the verdict winner, was sufficient to enable the fact-finder

to find every element of the crime charged beyond a reasonable doubt.

Commonwealth v. Houck, 102 A.3d 443, 449 (Pa.Super. 2014).                       The

Commonwealth may meet its burden of proving every element beyond a

reasonable doubt through wholly circumstantial evidence, and the fact-finder

is free to believe all, part, or none of the evidence presented. Id.

      Appellant argues that the Commonwealth failed to prove that appellant

caused the death, and he did so with malice and specific intent to kill.

(Appellant’s brief at 21.)      “The only evidence that the Commonwealth

presented     was    the     prior     inconsistent   recorded      statements    of



2
  Sergeant Henderson was one of the officers who responded to the call
about shots fired at the gas station. (Notes of testimony, 11/8-12/10 at
87.)


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Shermaine Campbell     and   Harold   Fields,   and   the   trial   testimony   of

Sergeant William Wagner.”     (Id.)   As the trial court observes, appellant’s

argument concerns credibility of witnesses, and goes to the weight of the

evidence not to its sufficiency. (See trial court opinion, 7/17/14 at 10-11.)

      Nevertheless, the evidence is clearly sufficient. To sustain appellant’s

conviction of first-degree murder, we must conclude that the evidence

proved beyond a reasonable doubt the three elements of first-degree

murder:   (1) a human being was unlawfully killed; (2) the defendant was

responsible for the killing; and (3) the defendant acted with malice and a

specific intent to kill. 18 Pa.C.S.A. § 2502(a); Commonwealth v. Houser,

18 A.3d 1128, 1133 (Pa. 2011).         First-degree murder is an intentional

killing, i.e., a “willful, deliberate and premeditated killing.”    18 Pa.C.S.A.

§ 2502(a) and (d); Commonwealth v. Fears, 836 A.2d 52, 59 (Pa. 2003).

      The evidence established that

            (1) the shooter crossed Penn Avenue towards
            Sunoco; (2) the shooter pulled his hood over his
            head, retrieved a gun from within his sweatshirt, and
            walked directly to Johnson’s vehicle; (3) the shooter
            aimed the gun at Johnson and shot at him through
            the car window nine times; ([4]) the shooter fled
            and was chased for a short period by Officer Wagner
            before escaping; ([5]) Johnson died as a result of a
            fatal gunshot wounds to his heart and lungs; and
            ([6]) three eye witnesses identified [a]ppellant as
            the shooter. While two eye witnesses recanted their
            identification at trial, the jury had the opportunity to
            hear their tape recorded statements wherein they
            identified [a]ppellant as the shooter shortly after the
            shooting, and the jury was able to weigh the
            credibility of the identifications. Additionally, the


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            jury had the benefit of the unwavering identification
            of Officer Wagner, who saw [a]ppellant’s face for
            twenty-five seconds, without obstruction, and was
            trained to focus on facial features.

Trial court opinion, 7/17/14 at 11-12 (citations omitted). The evidence was

clearly sufficient to sustain the first degree murder conviction.

       Appellant also argues that the Commonwealth introduced insufficient

evidence to support the conviction of carrying a firearm without a license as

it did not prove beyond a reasonable doubt that appellant concealed a

firearm on or about his person.       The statute provides “any person who

carries a firearm concealed on or about his person, except in his place of

abode or fixed place of business, without a valid and lawfully issued license

under this chapter commits a felony of the third degree.”           18 Pa.C.S.A.

§ 6106(a)(1).   Sergeant Wagner specifically testified that appellant had a

concealed firearm on his person.      The sergeant observed appellant pull a

pistol out from underneath his coat and walk with the pistol towards

Johnson’s vehicle.    Sergeant Wagner also testified that when appellant

reached the vehicle, he repeatedly fired the weapon.       Moreover, Campbell

and Fields also corroborated that appellant possessed a gun.         No relief is

due.

       Next, we turn to appellant’s claim that the verdict was against the

weight of the evidence.

            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


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               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 based on a challenge to the weight of the
               evidence is unfettered. In describing the limits of a
               trial court’s discretion, we have explained[,] [t]he
               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) (emphasis

omitted) (citations omitted).

      Appellant     argues   that   the   testimony    of   the   eyewitnesses      was

inconsistent     and   contradictory.      He   also   points     to   the   fact   that

Sergeant Wagner testified that he saw the shooter’s hands and that there

were no tattoos. However, at trial, appellant showed his hands which were

covered in tattoos. Appellant also points out that the police report does not


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indicate that Sergeant Wagner saw anyone standing across the street and

walking toward the gas station.

      Mindful of our standard of appellate review and its exceptionally

narrow scope, we find no basis for relief.       The trial judge found that,

contrary   to   appellant’s   allegations   of   grave   inconsistencies   and

contradictions in the eyewitness testimony, the evidence supported the

jury’s verdict. The court addressed appellant’s weight-of-the-evidence claim

in the following manner:

            The jury heard testimony from Officer Wagner
            regarding his identification of [a]ppellant as the
            perpetrator. While [a]ppellant argues that two eye
            witnesses stated at trial that they could not identify
            [a]ppellant as the shooter, the jury also heard
            testimony regarding the initial identifications of
            [a]ppellant by both witnesses, as well as the threats
            made to one of the eyewitnesses that accounted for
            his recantation. The jury was free to assess the
            credibility of these witnesses, and the jury clearly
            found that the identifications made in the immediate
            aftermath of the shooting, and free from outside
            influence and pressure, were more credible than the
            recanting testimony at trial.

Trial court opinion, 7/17/14 at 14-15 (footnote omitted). We agree.

      Based on the well-reasoned trial court opinion and our review of the

record, we conclude that the court acted within its discretion when it

determined that the verdicts were not against the weight of the evidence

and declined to grant a new trial. Thus, no relief is due.

      The final issue presented concerns whether the trial court erred when

it allowed Sergeant Henderson to testify about Campbell’s statement to


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them under the excited utterance rule. Appellant argues that too much time

had elapsed for the statements to qualify as excited utterances. He points

to the fact that seven to ten minutes of time passed from when

Sergeant Henderson arrived on the scene until he heard Campbell make the

statement, “I can’t believe he did it.”   Appellant claims this lapse of time,

coupled with the sergeant’s own testimony that Campbell had calmed down

considerably, should have resulted in her statement not qualifying under this

rule.

        Our supreme court has consistently defined “excited utterance” as:

             a spontaneous declaration by a person whose mind
             has been suddenly made subject to an overpowering
             emotion caused by some unexpected and shocking
             occurrence, which that person had just participated
             in or closely witnessed, and made in reference to
             some phase of that occurrence which he perceived,
             and this declaration must be made so near the
             occurrence in both time and place as to exclude the
             likelihood of its having emanated in whole or in part
             from his reflective faculties.

Allen v. Mack, 28 A.2d 783, 784 (Pa. 1942); Commonwealth v. Farrior,

458 A.2d 1356 (Pa.Super. 1983). “[T]here is no clear-cut rule as to the time

sequence; whether the actual delay between the event and the statement is

sufficient to negate ‘spontaneity’ must be resolved in light of the particular

facts of each case.”    Commonwealth v. Pronkoskie, 383 A.2d 858, 863

(Pa. 1978) (citations omitted).

        Upon consideration of the aforementioned factors, we find that

Campbell’s statement qualifies as an excited utterance and the trial court did


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not abuse its discretion.    As the Commonwealth observes, on numerous

occasions, this court had previously approved the admission into evidence of

such declarations notwithstanding interim periods comparable to or even

greater than that involved in the present case. Lininger v. Kromer, 358

A.2d 89 (Pa.Super. 1976) (2 hours); Commonwealth v. Cheeks, 223 A.2d

291, 293 (Pa.Super. 1966) (45 minutes); Commonwealth v. Soudani, 155

A.2d 227 (Pa.Super. 1959), affirmed, 159 A.2d 687 (Pa. 1960); cert.

denied, 364 U.S. 886 (1960) (45 minutes).

      Additionally, we    disagree   that the   evidence   demonstrated that

Campbell had regained her composure prior to making the statement. The

trial court found that she was “visibly shaken and upset” and the testimony

of Henderson supports this statement. Henderson emphasized “she was still

very upset, as you can imagine.”       (Notes of testimony, 11/8/10 at 91.)

Campbell remained mere feet from the scene of the murder she had just

witnessed. Thus, appellant is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




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