J-S78001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ANJOHNITO WILLET                           :
                                               :
                      Appellant                :   No. 1288 WDA 2016

              Appeal from the Judgment of Sentence May 4, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0001222-2014


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

MEMORANDUM BY OLSON, J.:                              FILED JANUARY 30, 2018

        Appellant, Anjohnito Willet, appeals from the judgment of sentence

entered on May 4, 2016, following his jury trial convictions on four counts of

recklessly endangering another person (REAP), three counts of aggravated

assault, and one count each of attempted homicide and possession of a

firearm by minor.1 We affirm.

        We briefly summarize the facts and procedural history of this case as

follows.   On November 13, 2013, as four students were leaving Brashear

High School in Pittsburgh, Pennsylvania, shots rang out from a hill in the

woods across the street from the school.           Two of the students sustained

head wounds from the shooting. The injured students were able to retreat


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1
     18 Pa.C.S.A. §§ 2705, 2702(a), 2501/901, and 6110.1(a), respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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back into the school as police responded to the scene.        An eyewitness

reported seeing a male wearing a red hooded sweatshirt on the hill across

from Brashear High School, watching students running away. Upon further

investigation, police learned that the targeted students had been involved in

a physical altercation with Appellant a month prior to the incident and

Appellant told a security guard that he was going to come back and shoot

one of them.

      Investigating officials were dispatched to a duplex building, in the

Beechview section of Pittsburgh, to execute a search warrant where

Appellant was thought to reside. Police arrested Appellant and interviewed

him along with two other men, Antoine Lewis and Tyron Harris, who were

with Appellant before and after the shootings and were at the duplex when

police arrived.   Appellant and Harris lived next door to each other in the

duplex.   Lewis had been living with Harris.   Harris told police that he and

Appellant walked through the woods towards Brashear High School around

dismissal time on the day of the incident and that he witnessed Appellant

fire shots towards students.    Lewis told police that, after the shooting,

Appellant and Harris asked him to dispose of a gun and bullet magazine

wrapped in a towel. Lewis told police that he put the gun and magazine into

a book bag and took it to his great grandmother’s house. At trial, however,

Harris and Lewis recanted their statements to police.

      The following evidence was also adduced at trial.     Police conducted

tests on Appellant, Lewis, and Harris for gunshot residue shortly after the

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shooting.    All three men tested positive, but only Appellant had traces of

residue on both of his hands.      Upon executing the search warrant at the

duplex, police recovered evidence that Appellant resided in a bedroom on

one side of the duplex.     From that bedroom, they recovered eight .357

caliber bullets in a bag next to the bed. On the other side of the duplex,

Harris’ residence, police recovered two red hooded sweatshirts, two

smartphones, brass knuckles, ten packets of heroin, and an unfired .22

caliber bullet.   Upon analyzing one of the recovered cellular telephones,

police discovered photos of one of the shooting victims taken hours before a

physical altercation that occurred in October 2013 and 23 photos of

Appellant, including a “selfie.”   There was only one contact listed on that

phone and it was for Harris.       At trial, the Commonwealth entered the

telephone into evidence and police testified that they believed it belonged to

Appellant.    Police also recovered a book bag from the residence where

Harris’ great grandmother lived. The bag contained a .357 magnum Ruger

revolver and a magazine containing .22 caliber bullets.        Finally, police

recovered three .22 caliber bullets from the shooting victims. At trial, the

Commonwealth presented a firearm expert who opined that all of the bullets

recovered from the victims were fired from the same gun, but that it was not

possible to fire a .22 caliber bullet from a .357 magnum firearm.

      On February 2, 2016, a jury convicted Appellant of the aforementioned

offenses.    On May 4, 2016, the trial court sentenced Appellant to an




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aggregate sentence of 12 to 30 years of imprisonment, with two consecutive

years of probation to follow. This timely appeal resulted.2

       Appellant raises the following issues for our review:

       I.     Did the [t]rial [c]ourt abuse its discretion in permitting
              Detective Cynthia Smith to testify about the contents of
              the book bag that Antoine Lewis took to his great
              grandmother’s house?

       II.    Did the [t]rial [c]ourt abuse its discretion in allowing
              Detective Wade Sarver to testify about the contents of a
              [cellular tele]phone that was recovered from Tyron Harris’
              apartment?

       III.   Did the [t]rial [c]ourt abuse its discretion in denying
              [Appellant’s] post-sentence motion for a new trial as the
              verdict was so contrary to the evidence presented at trial
              that it shocks one’s conscience and sense of justice?

Appellant’s Brief at 3.

       Appellant’s first two issues challenge trial court evidentiary rulings.

We will examine them together. First, Appellant claims that the trial court

abused its discretion by admitting the book bag and its contents (as

described above) into evidence. Appellant’s Brief at 7-8. In sum, he avers:

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2
    Appellant filed a timely post-sentence motion. The trial court permitted
amendments to the post-sentence motion upon Appellant’s receipt of the
transcribed notes of trial testimony. The trial court ultimately denied relief
on August 4, 2016. On August 30, 2016, Appellant filed a notice of appeal.
On September 1, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After the trial court granted Appellant two requested extensions, Appellant
filed a timely Rule 1925(b) concise statement on December 20, 2016. On
April 28, 2017, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a).



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      The .357 caliber revolver could not have been used in the
      shooting as it could not fire the bullets recovered from the
      [shooting] scene. The .22 caliber magazine was not proven to
      be from the firearm that fired the bullets recovered from the
      scene, which were of a common and popular caliber. This
      testimony was overly prejudicial and possessed little-to-no
      probative value in relation to any material fact at issue in the
      case and should not have been permitted by the [t]rial [c]ourt.

Id. at 8 (record citations omitted).

      Next, Appellant argues that the trial court abused its discretion by

allowing a police detective to testify about the contents of the cellular

telephone recovered from Harris’ residence. Id. On this issue, he claims:

      The Commonwealth sought to and was granted permission to
      admit into evidence screen captures from the phone in question.
      The photo screen grabs were from Facebook and purported to
      show [the victims] Robert Minor and Jaymond Eberhardt and
      were apparently taken from the residence at which [Appellant]
      was arrested. The files were apparently created hours after the
      fight at the high school between [Appellant] and one of the
      victims. However, it was not possible to tell whose [tele]phone
      the screen grabs came from and as a result, when they were
      created.

                           *             *       *

      The contents of the [tele]phone could not be authenticated in
      any relevant fashion in that the Commonwealth presented no
      evidence to establish that [Appellant] ever possessed or
      controlled the [tele]phone or that he was responsible for sending
      and receiving of electronic data from the [tele]phone. Without
      this authentication the contents of the [tele]phone were
      irrelevant, unduly prejudicial, and confusing to the jury.

Id. at 8-9 (record citations omitted).

      Appellant, however, does not support either of his evidentiary claims

with any legal authority, which violates our rules of appellate procedure.

See   Pa.R.A.P. 2119(a). “We have repeatedly held that failure to develop

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an argument with citation to, and analysis of, relevant authority waives the

issue on review.”   Commonwealth v. Plante, 914 A.2d 916, 924 (Pa.

Super. 2006) (citation omitted). Accordingly, Appellant has waived his first

two issues.

     Regardless, we previously determined:

     The admissibility of evidence is a matter solely within the
     discretion of the trial court. This Court will reverse
     an evidentiary ruling only where a clear abuse of discretion
     occurs. Generally, an appellate court's standard of review of a
     trial court's evidentiary rulings is whether the trial court abused
     its discretion; however, where the evidentiary ruling turns on a
     question of law our review is plenary.

Commonwealth v. Woeber, 2017 WL 5184530, at *2 (Pa. Super. 2017)

(internal citations and quotations omitted). “The court may exclude relevant

evidence if its probative value is outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 403.

     Upon review of the record, the applicable law, and the parties’

arguments, we discern no abuse of discretion by the trial court.     The trial

court determined that “the book [] bag and its contents [were] highly

probative in that they corroborate[d] other testimony and demonstrate[d]

actions taken by Appellant and Harris to hide incriminating items.”        Trial




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Court Opinion, 4/28/2017, at 12.3              Moreover, the trial court noted that,

“[t]he magazine containing .22 caliber ammunition [found inside the book

bag was] highly probative since the bullets recovered from the victims were

.22 [caliber].”    Id.   Further, the trial court recognized that the prejudicial

effect of introducing the .357 firearm into evidence was minimal because

there was testimony that Harris had fired that weapon on the morning of the

shootings. Id. Regarding Appellant’s argument pertaining to admission of

the cellular telephone into evidence, the trial court determined that there

was circumstantial evidence “provid[ing] sufficient authentication that the

phone belonged to Appellant and did not belong to Harris.”            Id. at 13-14.

Although the telephone was recovered from Harris’ residence, Appellant was

inside that residence when police arrived to execute the search warrant,

there were multiple photos of Appellant saved on the telephone, and Harris

was listed as a contact on the telephone. Id. at 13-14. Harris’ inclusion as

a contact in the telephone’s directory made it more likely that the telephone

belonged to Appellant and not Harris. We agree with the trial court that the

book bag, its contents, and the telephone were properly admitted into

evidence and their probative value outweighed any prejudice to Appellant.
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3
  We note that a copy of the trial court opinion was not attached to
Appellant’s brief as required by Pa.R.A.P. 2111(b) (“There shall be appended
to the brief [of Appellant] a copy of any opinions delivered by any court or
other government unit below relating to the order or other determination
under review, if pertinent to the questions involved.”) We remind counsel of
his obligation to comply with the Rules of Appellate Procedure.



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      In his third issue presented, Appellant argues that his convictions were

against the weight of the evidence presented at trial.     Appellant’s Brief at

9-15. Appellant claims that, of all the eyewitnesses who testified at trial, no

one saw the actual shooter.        Id. at 10.    When the shooting occurred

Appellant was no longer attending Brashear High School and he argues he

would not have known the victims would be exiting the school near the

shooting incident and not following their usual dismissal routine on the day

in question. Id. at 11. Moreover, Appellant argues:

      Of the evidence presented at trial, only [] Harris’ initial
      statement to police put a gun in [Appellant’s] hand on the day of
      the shooting. [] Harris’ initial statement was not credible for the
      reasons mentioned by [] Harris himself at trial. [] Harris was
      anxious, intoxicated, and worried about being charged based
      upon what detectives might find during the search of his
      residence. [] Harris wanted to clear his name. The remaining
      evidence points to other possible shooters, including [] Harris
      himself. [] Harris admitted to firing a gun that day.

      [] Harris, [] Lewis, and [Appellant] all tested positive for
      characteristic particles of gunshot residue. Based upon the
      testimony of [Brashear High School’s learning environment
      specialist], [Appellant] was not the only student with a possible
      motive to harm [] the [] victims. No firearm capable of firing
      .22 caliber was ever recovered, much less tied to [Appellant].
      [Appellant] was described as calm and also a good student with
      no disciplinary problems.      Finally, [] Harris’ trial testimony
      should be accorded greater weight than his initial statement to
      the police because of the grant of immunity, which would allay []
      Harris’ fear of being charged for the shooting if he told the truth.
      Because of the lack of credible evidence establishing that
      [Appellant] was the shooter, a new trial must be awarded.

Id. at 16-17.

      Our standard of review is as follows:


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      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. When a trial
      court considers a motion for a new trial based upon a weight of
      the evidence claim, the trial court may award relief only 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. The
      inquiry is not the same for an appellate court. Rather, when
      an appellate court reviews a weight claim,         the        court
      is reviewing the exercise of discretion by the trial court, not the
      underlying question of whether the verdict was against
      the weight of the evidence. The appellate court reviews a claim
      using an abuse of discretion standard.

      At trial, the jury [is] the ultimate fact-finder and the sole arbiter
      of the credibility of each of the witnesses. Issues of witness
      credibility include questions of inconsistent testimony and
      improper motive.          A jury is entitled to resolve any
      inconsistencies in the Commonwealth's evidence in the manner
      that it sees fit.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080–1081 (Pa. 2017)

(internal citations and quotations omitted).

      Here, the trial court recounted all of the evidence presented and

concluded that the verdict was not against the weight of the evidence:

      The evidence presented at trial could reasonably lead a jury to
      conclude that Appellant not only possessed a firearm on the day
      of the school shooting but that he stood where the shooter had
      [been] observed and shot at the victims in retaliation for a fight
      the previous month. The jury’s verdict is not contrary to the
      evidence but rather consistent with it.

Trial Court Opinion, 4/28/2017, at 15.

      Based upon our standard of review, we discern no abuse of discretion

in rejecting Appellant’s weight of the evidence claim. Initially, we note that


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the Commonwealth provided substantial evidence of Appellant’s motive to

shoot the victims in retaliation for an earlier altercation. Next, reliance on

any eyewitness discrepancy fails. Here, jurors were confronted with Harris’

initial statement to police and his later recantation at trial.    The jury was

permitted to believe some, all, or none of the evidence presented and we

may not usurp their credibility determinations.        Furthermore, there was

evidence that Appellant directed Lewis to dispose of a firearm and

ammunition contained in a book bag.           In addition, the Commonwealth

presented physical evidence corroborating the testimony at trial. Appellant

tested positive for gunshot residue on both hands, which was consistent with

him firing a weapon. Moreover, .22 caliber bullets were recovered from the

victims, the same caliber of ammunition hidden in the aforementioned book

bag. In light of the foregoing, we agree with the trial court that the verdict

does not shock one’s sense of justice.       Accordingly, Appellant’s final issue

does not warrant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2018




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