J-S23032-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellee              :
            v.                            :
                                          :
SHAWN HILL,                               :
                                          :
                    Appellant             :   No. 1527 EDA 2014

          Appeal from the Judgment of Sentence Entered April 21, 2014,
              in the Court of Common Pleas of Philadelphia County,
                Criminal Division, at No: CP-51-CR-0009017-2012

BEFORE:          DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 16, 2015

      Shawn Hill (Appellant) appeals from the judgment of sentence

imposed following his convictions for, inter alia, first-degree murder.      We

affirm.

      The trial court summarized the evidence offered at trial as follows.

            Around midnight on July 5, 2011, Chastity Cannon dropped
      off her mother, Darlene Cannon, at her home, 191 Widener
      Street in North Philadelphia. Upon reaching her porch, Darlene
      Cannon overheard her neighbors, Marcella Ingrum of 187
      Widener Street and Paula Wilkins of 189 Widener Street,
      complaining about Cannon’s practice of pouring condiments and
      chocolate syrup on her porch stairs. Cannon and Ingrum began
      [] arguing over Ingrum’s comments. The argument prompted
      Cannon to call her daughter, Chastity Cannon, and explain the
      altercation to her. Chastity Cannon came back to Widener
      Street with her daughter and other females, both cousins and
      friends. Darlene Cannon identified Ingrum as the instigator of
      the altercation. Chastity Cannon and the other females began []
      arguing with Ingrum.      Eventually, Sydney Hill, [Appellant’s]
      brother and Ingrum’s son, joined the argument.




*Retired Senior Judge assigned to the Superior Court.
J-S23032-15


           Meanwhile, Ingrum called her daughter Rorie Hill,
     summoning her and [Appellant] to the incident. Rorie Hill and
     [Appellant] arrived at 187 Widener Street. Upon exiting the car,
     Rorie Hill and [Appellant] joined the argument. Sakima Santos,
     Chastity Cannon’s fiancé, arrived on the scene and also joined
     the argument.       Santos noticed [Appellant] on the scene
     approximately five to ten minutes after he arrived.

                               ***

           Shortly thereafter, the argument resumed when two cars
     carrying a group of approximately eight males arrived on
     Widener Street. Jamel Newman, the decedent, was one of the
     males who arrived in the car. Most of the males exited the car
     and joined the argument. Santos was in the center of the
     crowd, attempting to calm down [Appellant] and his family,
     explaining that no one wanted to fight. Pushing and shoving
     broke out, at which point Santos observed [Appellant] pull a
     small, silver gun and fire two shots.

           Upon hearing gun shots, Chastity Cannon turned to run
     toward Second Street but became caught up in the crowd. She
     noticed that her arm had been shot. She turned around and saw
     [Appellant] pointing a gun at her. [Appellant] struck her with
     another bullet.     Santos, having started to run, noticed his
     fiancé[] lying in the street. When Santos turned back, he saw
     [Appellant] pointing a gun at him. Santos asked [Appellant] not
     to shoot and told him that “we have kids.” Santos then watched
     as [Appellant] shot him twice in the stomach. Santos counted to
     seven before standing up and carrying his fiancé to a police car
     at the end of Widener Street. When Santos arrived at a police
     car located at the corner of Second Street and Widener Street he
     noticed the decedent, Jamel Newman, lying next to it.

            On July 5, 2011 shortly after midnight, Patrick Duncan and
     his wife were driving South on Second Street. Stopping at a
     light at Second Street and Nedro Avenue, Duncan observed two
     people running, one down the sidewalk and one down the street.
     Duncan hesitated to go through the light because he feared the
     two runners would cut in front of his car. As he began to
     accelerate, he noticed a person coming out of Widener Street on
     foot. That person made a left onto Second Street and as he did,



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     he fell. Duncan also observed two different males standing next
     to the car on the Southeast corner of the street. The males
     stood with their backs to the car and were facing the person who
     turned off of Widener Street. Duncan then observed five or six
     gunshots. He saw one of the males standing by the car and
     holding a gun with two hands, and the other firing a gun.
     Duncan heard the person whom he saw fall moan as he drove
     past him on Second Street. On July 5, 2011, later in the
     morning, Duncan called Cheltenham Police who directed him to
     the Philadelphia Homicide Unit where Duncan then gave a
     statement consistent with his testimony.

          Chastity Johnson, Chastity Cannon’s daughter, was also
     present during the argument and the shooting.          Johnson
     observed Newman at the scene of the argument. She also saw
     [Appellant] pull out a gun and saw a spark ignite from it.
     Johnson saw Newman start to run. Johnson began running
     down the sidewalk, but soon moved to the street, which was less
     crowded. She watched Newman run in the street and observed
     [Appellant] following him.    Johnson saw another man with
     [Appellant] who was carrying guns.

            Officers Auty and Deacon, after quelling the argument on
     the 100 Block of Widener Street, had just reached the corner of
     Second and Nedro Streets when they heard gunfire.           The
     [o]fficers pulled over and saw a great deal of smoke and the
     decedent lying in the street. They pulled up to him and Officer
     Auty checked for signs of life, but found none. Sakima Santos
     approached Officer Auty, carrying Chastity Cannon and
     explaining that they had been shot. Officer Auty took Santos
     and Cannon to Einstein Hospital.

                               ***

          In her statement to police, Marcella Ingrum[, Appellant’s
     mother,] named [Appellant] as the shooter and identified him
     from a police photo array. At trial, Ingrum testified she did not
     remember giving or signing her statement, claiming she was
     under the influence of alcohol and marijuana at the time she
     gave it. Detective Pitts testified that Ingrum did not appear to
     be under the influence of either substance at the time she gave
     her statement, which she delivered in a coherent and



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     cooperative manner. In her statement to police, Rorie Hill said
     she witnessed [Appellant, her brother,] pull out a gun and fire a
     shot while arguing on Widener Street. At trial, Hill recanted her
     statement, claiming the police forced her to name [Appellant].
     Detective Harkins testified that he did not threaten Hill while
     taking her statement, nor did Hill indicate that she did not wish
     to speak with police.

           [Ballistics evidence showed that three different guns were
     involved in the incident: one .380 and two nine millimeter
     firearms. None was forensically linked to Appellant.]

            As a result of suffering two gunshot wounds to the
     stomach, Sakima Santos spent two and a half months in the
     hospital, ten of those days in a medically induced coma. Santos
     had his small intestines removed, and suffers from damage to
     his pancreas and liver. As a result of her three gunshot wounds,
     part of Chastity Cannon’s lower intestine was removed, she
     suffered two cracked ribs, and the bone in her left arm from the
     shoulder to elbow was shattered. Her arm bone was replaced
     with a metal rod. A bullet also tore her left lung and injured her
     spleen, which was removed in surgery. Six to seven months
     after the incident, doctors removed a bullet from Cannon’s back
     that could not have been removed during the initial procedures.

Trial Court Opinion (TCO), 7/17/2014, at 2-7 (citations omitted).

     On April 7, 2014, following a bench trial, Appellant was convicted of,

inter alia, first-degree murder; conspiracy to commit first-degree murder;

three counts of recklessly endangering another person (REAP); and two

counts each of attempted murder, aggravated assault, and possession of a

firearm by one prohibited. On April 21, 2014, Appellant was sentenced to

life imprisonment as well as to several lesser sentences.   Appellant timely

filed a post-sentence motion, which was denied by order of May 12, 2014.




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Appellant timely filed his notice of appeal, and thereafter a court-ordered

concise statement of errors complained of on appeal.

     On appeal, Appellant challenges the sufficiency and the weight of his

murder conviction, and alleges that the prosecution violated Brady v.

Maryland, 373 U.S. 83 (1963). Appellant’s Brief at 6.

     We begin with Appellant’s sufficiency challenge, mindful of our

standard of review.

     The standard we apply in reviewing the sufficiency of the
     evidence is whether viewing all the evidence admitted at trial in
     the light most favorable to the verdict winner, there is sufficient
     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying [the above] test,
     we may not weigh the evidence and substitute our judgment for
     the fact-finder.    In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.         Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, 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.

     Further, in viewing the evidence in the light most favorable to
     the Commonwealth as the verdict winner, the court must give
     the prosecution the benefit of all reasonable inferences to be
     drawn from the evidence.




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Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted). “Evidence is sufficient to sustain a

conviction of first-degree murder where the Commonwealth establishes that

the defendant acted with the specific intent to kill, that a human being was

unlawfully killed, that the person accused did the killing, and that the killing

was done with premeditation or deliberation.”      Commonwealth v. Spotz,

759 A.2d 1280, 1283 (Pa. 2000).

      Appellant’s sufficiency claim is two-fold.    He first claims that “the

inference that [] Appellant has been accurately identified is not a reasonable

inference” because there were “glaring inconsistencies” in the description of

the shooter and no one identified Appellant as being one of the Widener and

Second shooters. Appellant’s Brief at 29-30.        He also argues that the

Commonwealth failed to prove that the shooter acted with a specific intent

to kill. Id. at 30.

      The trial court disagreed:

            Although the ballistic evidence does not conclusively
      establish that [Appellant] fatally shot the decedent, eyewitness
      evidence does establish that [Appellant] and a co[-]conspirator
      shot at the decedent multiple times, killing him.          Thus,
      [Appellant’s] guilt for first-degree murder under a conspiracy
      theory is established.     See Commonwealth v. Smith, 985
      A.2d 886, 896-97 (Pa. 2009) (“Even assuming, as Appellant
      urges us to do, that the fatal bullet was fired by [the co-
      conspirator] and not Appellant, the evidence was sufficient to
      convict Appellant of first-degree murder as a co-conspirator.”).
      See also Commonwealth v. Montalvo, 956 A.2d 926, 932
      (Pa. 2008) (each member of a conspiracy to commit homicide



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     can be convicted of first-degree murder, regardless of who
     inflicted the fatal wound); Commonwealth v. Boxley, [] 838
     A.2d 608, 612 (Pa. 2003) (evidence was sufficient to support
     appellant’s conviction for first-degree murder, regardless of
     whether appellant or one of his co-conspirators fired the fatal
     shot).

            The testimony of Sakima Santos amply establishes that
     [Appellant] had a gun during the incident in question and was
     using it to shoot people in a deliberate and premeditated
     manner. Further eyewitness testimony from Patrick Duncan,
     who was not a party to this conflict and whose car was struck by
     a bullet as he drove by, establishes that two shooters chased the
     decedent and shot him. Duncan’s testimony, in combination
     with that of Chastity Johnson, establishes that [Appellant] was
     one of these two shooters. She saw [Appellant] and another
     man chase the decedent, who was running away. Mere seconds
     later, Duncan saw the two men shoot the decedent. Because the
     evidence shows that [Appellant] and a co[-]conspirator pursued
     the decedent and shot at him repeatedly, striking his body seven
     times and causing his death, it is sufficient to establish that he
     intended to kill, and did kill, the decedent.

TCO, 7/17/2014, at 9-10 (unnecessary capitalization omitted).

     We agree with the trial court that Appellant’s sufficiency challenge

lacks merit.   Many witnesses, including Appellant’s very own mother,

identified Appellant as one of the initial shooters.      The inference that

Appellant was one of the men who chased down and shot the decedent at

Second and Widener streets logically follows, and is supported by the

eyewitness testimony.   Appellant’s arguments merely attack the credibility

determinations of the fact-finder, not the sufficiency of the evidence, and

urge us to consider the evidence in the light most favorable to him, rather

than the verdict winner.   Accordingly, his sufficiency challenge fails.   See,



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e.g., Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super. 2006)

(“We may not weigh the evidence or substitute our judgment for that of the

fact-finder. … When evaluating the credibility and weight of the evidence,

the fact-finder is free to believe all, part, or none of the evidence.”).

      Appellant next claims 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 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.

            However, 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 not unfettered. The
      propriety of the exercise of discretion in such an instance may be
      assessed by the appellate process when it is apparent that there
      was an abuse of that discretion.

Commonwealth v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 753 (Pa.

2000) (internal citations omitted).

      Appellant’s argument that the verdict was against the weight of the

evidence is based upon the lack of DNA or ballistics evidence pointing to

him, and upon alleged inconsistencies in the testimony of the witnesses.




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Appellant’s Brief at 26. To the former basis, we note that “an absence of

evidence is not evidence of absence.”       Commonwealth v. Heilman, 867

A.2d 542, 547 (Pa. Super. 2005) (affirming denial of post-conviction DNA

testing that would not have proven the appellant’s innocence and reiterating

that “a murder suspect may be convicted on wholly circumstantial

evidence”). The fact that there was no forensic evidence of Appellant’s guilt

does not require a finding that Appellant is innocent.

      Appellant’s attack on the inconsistencies in the evidence is similarly

meritless.   Aside from the fact that Appellant largely points to trivial

differences in testimony that are not necessarily conflicting, 1 reconciling

inconsistencies in the testimony was within the province of the fact-finder.

Commonwealth v. Simmons, 662 A.2d 621, 630 (Pa. 1995) (“After

examining the evidence in this case, we find that appellant’s assertion that

the inconsistencies in the witnesses’ testimony rendered them incredible to

have no merit since the inaccuracies claimed are only minor and a witness’s

credibility is solely for the [fact-finder] to determine.”). Appellant has failed




1
  For example, Appellant argues that “Sakima Santos described that the
shooter was wearing blue pants when another witness described Appellant
as wearing blue jeans[;]” and that “Chastity Cannon described the shooter
as wearing a shirt with writing on it whereas others described him as
wearing a white T-shirt.” Appellant’s Brief at 27. “Blue jeans” and “blue
pants” both describe leg coverings that are blue; a T-shirt can both be white
and have writing on it.


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to convince us that the trial court abused its discretion in holding that the

verdict was not against the weight of the evidence.

      Finally, Appellant claims that the Commonwealth violated Brady

“where it concealed evidence that a bullet was removed from the body of

Chastity Cannon and where it failed to procure it for comparison to the other

ballistics evidence in the case[.]” Appellant’s Brief at 24. We disagree.

            To establish a Brady violation, an appellant must prove
      three elements: (1) the evidence at issue was favorable to the
      accused, either because it is exculpatory or because it
      impeaches; (2) the evidence was suppressed by the prosecution,
      either willfully or inadvertently; and (3) prejudice ensued.

            The burden rests with the appellant to prove, by reference
      to the record, that evidence was withheld or suppressed by the
      prosecution. The evidence at issue must have been material
      evidence that deprived the defendant of a fair trial. Favorable
      evidence is material, and constitutional error results from its
      suppression by the government, if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different.

Commonwealth v. Watkins, 108 A.3d 692, 711 (Pa. 2014) (internal

quotation marks and citations omitted).

      Here, Appellant has failed to establish a single one of the elements

required by Brady and its progeny. Most glaringly, he points to nothing in

the record that proves the Commonwealth suppressed evidence.            Instead,

Appellant notes that the Commonwealth “presumably” had the medical

records of the victims “for a period of time” before they testified at trial, and

“presumably had knowledge that projectiles were removed from their



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bodies.” Appellant’s Brief at 31-32. Appellant cannot meet his burden with

unsupported presumptions. Furthermore, as no ballistics evidence offered at

trial incriminated Appellant, the missing evidence was not material, because

no testing on the bullets removed from the victims could have exculpated

Appellant or impeached the Commonwealth’s evidence against him. Finally,

as the Commonwealth notes, Appellant was convicted of conspiracy to

commit first-degree murder, and therefore was responsible for the shootings

even if it was his co-conspirator’s gun that fired the bullets recovered from

the bodies of the victims.        Commonwealth’s Brief at 13 (citing, inter alia,

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002))

(“Once there is evidence of the presence of a conspiracy, conspirators are

liable    for   acts   of   co-conspirators   committed   in   furtherance   of   the

conspiracy.”). Accordingly, Appellant’s Brady claim fails.

         Thus, after a thorough review of the record and briefs in this case, we

are unconvinced that any of Appellant’s arguments entitles him to relief.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/16/2015




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