J-S57019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                    v.

FAZEL RAHMAN RAHIM

                          Appellant                  No. 1194 MDA 2018


       Appeal from the Judgment of Sentence imposed June 28, 2018
               In the Court of Common Pleas of Berks County
             Criminal Division at No: CP-06-CR-0004535-2016


BEFORE: BOWES, J., STABILE, J. AND MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                FILED: DECEMBER 31, 2019

      Appellant, Fazel Rahman Rahim, appeals from the judgment of sentence

the Court of Common Pleas of Berks County imposed on June 28, 2018.

Appellant challenges the weight of the evidence supporting his convictions.

Upon review, we affirm.

      The trial court summarized the relevant factual and procedural history

of the instant matter in its Rule 1925(a) opinion. Briefly, following a heated

argument with victim in the courtyard between their apartments, Appellant

drew a revolver and fired at victim from inside the kitchen door frame.

According to the Commonwealth witnesses, Appellant fired at victim three

times. Appellant testified on his own behalf that he shot victim twice in self-

defense after victim charged at him with a large stick and ripped his kitchen

door from its hinges. Appellant testified that he opened fire only as victim
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crossed the threshold into his kitchen from the courtyard. Two bullets were

removed from the side of victim’s body. The Commonwealth did not present

evidence regarding the path of a third bullet.

       Following a jury trial, Appellant was convicted of aggravated assault and

possessing an instrument of crime. The trial court sentenced Appellant to an

aggregate term of seven to twenty years’ imprisonment, followed by a five-

year term of probation.         Appellant’s counsel filed a timely post-sentence

motion, which the trial court denied. This appeal followed.1

       In his appeal, Appellant contends that the trial court abused its

discretion by denying his weight of the evidence challenge.         Specifically,

Appellant challenges the credibility of the Commonwealth witnesses or the




____________________________________________


1 Appellant, while represented by counsel, pro se filed the instant appeal
before the disposition of his post-sentence motion. This raises two problems,
which, however, do not prevent us from addressing the merits of the instant
appeal.

Generally, there is no right to hybrid representation; pro se filings by a
counseled defendant constitute legal nullities. See Commonwealth v. Ellis,
626 A.2d 1137 (Pa. 1993). However, a notice of appeal is distinguishable
from other filings, as it protects a constitutional right. Commonwealth v.
Williams, 151 A.3d 621, 623, 624 (Pa. Super. 2016), citing Ellis, 626 A.2d
at 1138-41; 210 Pa. Code § 65.24.

In the interest of judicial economy, the notice of appeal, although premature,
is deemed timely filed. See Pa.R.A.P. 905(a)(5) (providing that notice of
appeal filed after announcement of determination but before entry of
appealable order shall be treated as filed after such entry and on the day
thereof).

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inconsistencies between the testimony of the Commonwealth witnesses and

Appellant’s own testimony. We disagree.

      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.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted).

      For the reasons explained below, we conclude that the trial court acted

within its discretion by denying Appellant’s challenge to the weight of the

evidence.

      The trial court addressed the first weight of the evidence claim as

follows:

      At trial Commonwealth witnesses testified that [Appellant] hit
      [victim] with the first two bullets then fired a third that did not
      make contact while [victim] lay on the ground in the courtyard.
      [Appellant] testified that he fired all three while [victim] was
      within or near the kitchen door frame. [Appellant] requests a new
      trial because, “the Commonwealth failed to produce evidence” of
      damage to the concrete ground of the courtyard. Essentially,
      [Appellant] argues that the Commonwealth needed to show
      damage to the concrete patio/ground to corroborate its
      testimonial evidence that [Appellant] fired the third shot
      downward, missing [victim]. . . . Because the discrepancy goes to
      the credibility of Commonwealth witnesses, its resolution is
      exclusively for the jury. The guilty verdicts . . . are not so contrary
      to the evidence as to shock one’s sense of justice. In judging

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      credibility, the jury was free to believe all, part or none of the
      evidence. Moreover, the jury’s verdict could have been based
      solely on the first two gunshots without regard to whether
      [Appellant] fired the third bullet while [Appellant] was near the
      doorway or outside on the ground.

Trial Court Opinion, 4/24/19, at 5 (internal citations omitted).

      Regarding the second weight of the evidence claim, the trial court

stated:

      The thrust of [Appellant’s] argument is that the testimony of the
      Commonwealth witnesses concerning [victim]’s conduct lacked
      credibility; therefore, the guilty verdicts are so contrary to
      [Appellant]’s testimony – that [victim], “pulled a door off the
      hinges in an attempts to forcibly enter [Appellant]’s home prior to
      [Appellant] firing his gun” – as to shock one’s sense of justice and
      warrant a new trial. . . . [Appellant]’s claim amounts to nothing
      more than a dispute regarding the credibility of [Appellant]’s
      testimony versus of that [victim], his wife [], and his step-son [].
      As noted, this was a jury trial. While passing upon the credibility
      of witnesses and the weight of the evidence produced, the jury
      was free to believe all, part or none of the evidence.

      This claim concerns the jury’s determination of whether
      [Appellant]’s use of deadly force constituted justifiable self-
      defense (i.e., whether [Appellant] believed he was in danger of
      death or serious bodily injury at the moment he used deadly force,
      or that while [Appellant] actually believed he needed to use such
      to use such force, his belief was unreasonable). Here, the weight
      given to the testimony of the several eye witnesses on this
      question is a matter of credibility rightfully left to the jury, and the
      jury’s determination is not so contrary to the evidence as to shock
      one’s sense of justice.

Id. at 5-6 (internal citations omitted).

      In light of the foregoing, there is no basis in the record on which we

could conclude that the trial court committed an abuse of discretion in




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resolving Appellant’s weight of the evidence claim   in favor of the

Commonwealth.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2019




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