J. S55038/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
DENNIS MOORE,                              :          No. 3119 EDA 2017
                                           :
                          Appellant        :


           Appeal from the Judgment of Sentence, August 16, 2017,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0006751-2016


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED NOVEMBER 21, 2018

        Dennis Moore appeals the August 16, 2017 judgment of sentence in

which the Court of Common Pleas of Philadelphia County sentenced him to

serve an aggregate term of life imprisonment without the possibility of

parole for his convictions for first-degree murder, firearms not to be carried

without a license, carrying firearms in public in Philadelphia, and possession

of an instrument of crime.1 After careful review, we affirm.

        The facts, as recounted by the trial court, are as follows:

              At trial, Kenyatta Lyons testified that on August 6,
              2013, she lived on the 3300 block of Agate Street.
              During the night-time hours, she had gone around
              the corner from her home to a convenience store.
              She returned to Agate Street where she saw
              [appellant], whom she had known for about nine
              years. They chatted for about 10 minutes. She

1   18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, and 907, respectively.
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          walked the distance of four or five houses toward her
          home. She turned around and saw [appellant] shoot
          Julius Fleming about five or six times. She said that
          the final shot was to Mr. Fleming’s head.

          Ms. Lyons stated that she did not report the incident
          to the police because she felt that her life could be in
          danger. On March 18, 2016, the police approached
          her near her home and took her to homicide
          headquarters. She gave a signed statement to the
          police. She identified photographs of [appellant] and
          Julius Fleming.

          Janice Fioravanti testified that on August 6, 2013, at
          about 11 p.m., she was inside her home on Agate
          Street when she heard what sounded like five
          firecrackers. She went outside and saw a man drive
          away on a bicycle.          She found the body of
          Julius Fleming.     She was taken to homicide
          headquarters where she gave a written statement
          and was shown some photographs. She thought
          that she recognized one photograph, but was not
          100 per cent sure that the photograph was that of
          the man on the bicycle.

          Edward Jaje testified that on August 6, 2013, he was
          inside his home on the 3300 block of Agate Street,
          when he heard three shots, followed after a pause by
          two or three more shots. He looked out the window
          and saw a man stuffing something into his pants
          pocket and running to the house next door. He saw
          the man get on a bicycle and ride away. Mr. Jaje
          went outside where he saw Janice Fiorvante [sic] and
          the body of his neighbor, Julius Fleming.

          Mr. Jaje gave a statement to police. Because he was
          afraid of retaliation, Mr. Jaje did not tell police that
          he had recognized the shooter. Sometime after the
          shooting, Mr. Jaje moved to another neighborhood.
          About three years after the shooting, police again
          interviewed Mr. Jaje, who then identified [appellant]
          in a photo array. In the course of his testimony,
          Mr. Jaje became upset. The Court called a recess so
          that Mr. Jaje could compose himself. The prosecutor


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            suggested that the courtroom be cleared.       Defense
            counsel objected.

            The Court stated:

                  I want to make sure that the courtroom
                  does remain public. But in a situation
                  such as this, I think it would be
                  appropriate for me to clear the
                  courtroom, both sides. So I am going to
                  ask the people on both sides please stay
                  in the hallway. We’ll call you back when
                  it’s permitted. Thank you.

            With the courtroom cleared, Mr. Jaje identified
            [appellant] as the shooter.

            Dr. Albert Chu of the Medical Examiner’s office
            testified that Julius Fleming died from multiple
            gunshot wounds and that the manner of death was
            homicide. He said that the decedent had sustained
            five gunshot wounds—to the forehead, right lower
            jaw, head, chest and right shoulder.

            A document from the Pennsylvania State Police was
            introduced into evidence certifying that [appellant]
            was not licensed to carry a firearm in Pennsylvania.

            [Appellant’s] aunt, Charlese Lee, testified that
            [appellant] had a “very good” reputation for being a
            peaceful, nonviolent individual. [Appellant] did not
            testify.

Trial court opinion, 1/10/18 at 2-5 (citations to record omitted).

      On August 24, 2017, following his conviction and sentencing, appellant

filed a post-sentence motion and alleged that the verdict was against the

weight of the evidence.    On August 28, 2017, the trial court denied the

motion.   On September 26, 2017, appellant filed a notice of appeal.       On

October 2, 2017, the trial court ordered appellant to file a concise statement


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of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a).                On

October 18, 2017, the trial court issued an amended order that stated the

concise statement was due on or before December 19, 2017.                  Appellant

complied with the order on December 18, 2017. On January 10, 2018, the

trial court issued its opinion, pursuant to Pa.R.A.P. 1925(a).

         Appellant raises the following issues for this court’s review:

               I.     Is [appellant] entitled to an Arrest of Judgment
                      on all charges where the evidence is not
                      sufficient to sustain the verdict?

               II.    Is [appellant] entitled to a new trial where the
                      verdict is not supported by the greater weight
                      of the evidence?

               III.   Is [appellant] entitled to a new trial where the
                      [trial     c]ourt        impermissibly      and
                      unconstitutionally and without cause cleared
                      the Courtroom depriving [appellant] of a public
                      trial?

               IV.    Is [appellant] entitled to a new trial where the
                      greater weight of the evidence does not
                      support premeditation or a specific intent to kill
                      on the part of [appellant]?

Appellant’s brief at 3.

         Initially, appellant contends that he must be awarded an arrest of

judgment on all charges as the verdict is not supported by sufficient

evidence.     Specifically, appellant asserts that the Commonwealth failed to

establish premeditation necessary for first-degree murder. (Appellant’s brief

at 7.)




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      The Commonwealth argues2 that appellant waived this issue because

he did not raise it in his 1925(b) statement. (Commonwealth’s brief at 10.)

In his Rule 1925(b) statement, appellant claimed that the evidence was

insufficient because the Commonwealth failed to prove that he acted with

malice.     Here, in his brief to this court, appellant asserts that the

Commonwealth failed to prove that he acted with the requisite intent.

(Appellant’s brief at 7.)

      Pennsylvania courts have consistently held that for sufficiency of the

evidence challenges, an appellant’s Rule 1925(b) statement “needs to

specify the element or elements upon which the evidence was insufficient.”

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super. 2015), quoting

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008)

(citation omitted). Failure to do so results in waiver of the issue on appeal.

Tyack.     Furthermore, the failure to include an issue in the statement of

errors complained of on appeal results in a waiver of that issue.                See

Pa.R.A.P. 1925(b)(vii).

      Here, in the Rule 1925(b) statement, appellant asserted that the

evidence    was   insufficient   to   prove   first-degree   murder    because   the

Commonwealth failed to prove that he acted with malice.               (Rule 1925(b)




2 The Commonwealth filed an application for an extension of time to file a
brief and submitted a brief to this court before the court ruled on the
application. This court grants the application and will consider the brief.


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statement, 12/18/17 at 1.) In his brief, appellant asserts that the evidence

was insufficient to establish that he acted with premeditation.3

       In Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017), the

Supreme    Court   of   Pennsylvania    recently   provided   a   comprehensive

explanation of the concept of malice and distinguished it from specific intent.

All types of murder are committed with malice while only first-degree

murder is intentional. In Packer, our Supreme Court explained that malice

is present where a defendant did not have a specific intent to kill but

displayed a conscious disregard for an extremely high risk that his actions

could cause death or serious bodily harm. Packer, 168 A.3d at 161, 168-

169.

       As our supreme court explained in Packer, there is a distinct

difference between malice and specific intent as malice applies to all types of

murder and a specific intent to kill is an element only of first-degree murder.

Consequently, appellant did not raise the issue that the Commonwealth

failed to provide evidence sufficient to prove specific intent in his statement

of errors complained of on appeal. As a result, this issue is waived.




3 First-degree murder is defined as a criminal homicide committed by an
intentional killing. 18 Pa.C.S.A. § 2502(a). An “intentional killing” is defined
as “Killing by means of poison, or by lying in wait, or by any other kind of
willful, deliberate and premeditated killing.” 18 Pa.C.S.A. § 2502(d).


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     Appellant next contends that he must be awarded a new trial, as the

weight of the evidence does not establish that he committed first-degree

murder.

                 [T]he weight of the evidence is
                 exclusively for the finder of fact who is
                 free to believe all, part, or none of the
                 evidence and to determine the credibility
                 of the witnesses.       An appellate court
                 cannot substitute its judgment for that of
                 the finder of fact . . . thus, we may only
                 reverse the lower court’s verdict if it is so
                 contrary to the evidence as to shock
                 one’s sense of justice. Moreover, where
                 the trial court has ruled on the weight
                 claim below, an appellate court’s role is
                 not to consider the underlying question
                 of whether the verdict is against the
                 weight of the evidence, . . . rather,
                 appellate review is limited to whether the
                 trial court palpably abused its discretion
                 in ruling on the weight claim.

           Commonwealth v. Kim, 888 A.2d 847, 851
           (Pa.Super. 2005) (citations and quotations omitted).
           A motion for a new trial based on a challenge to the
           weight of the evidence concedes the evidence was
           sufficient to support the verdict. Commonwealth v.
           Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

     Appellant argues that the verdict was against the weight of the

evidence because the testimony of Kenyatta Lyons (“Lyons”) is suspect

because she did not identify appellant as the shooter until over three years

after the incident took place, the shooting happened at night, and Lyons had

to turn around to look at where the shooting occurred. (Appellant’s brief at



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9.) Appellant also asserts that Janice Fiorvanti’s (“Fiorvanti”) testimony was

meaningless because though she testified that she heard shots and saw a

man ride away on a bicycle, she could not identify appellant as the person

on the bicycle with 100 percent certainty.             (Id.)      He also discounts the

testimony of Edward Jaje (“Jaje”) because he was unwilling to testify until

the courtroom was cleared.           (Id. at 9.)    He argues that this questionable

evidence is offset by Charlese Lee’s testimony that appellant was of good

character and had a peaceful reputation. (Id. at 10.)

       Appellant appears to cast doubt on the credibility determinations of the

jury. The jury is the fact-finder at trial. The jury has the authority to accept

all,   none,   or   some    part     of    the   evidence   presented     to   it.   See

Commonwealth v. Quel, 27 A.3d 1033, 1038 (Pa.Super. 2011). This court

may not reweigh the evidence and cannot substitute its judgment for that of

the    finder-of-fact.     It   is   for   the   finder-of-fact    to   make   credibility

determinations. Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.Super.

2009). Further, although appellant asserts that evidence of good character

alone can create reasonable doubt, evidence of good character must be

weighed and considered in connection with the other evidence in the case.

See Commonwealth v. Sandusky, 77 A.3d 663, 673 (Pa.Super. 2013).

       The jury considered this evidence while also considering the evidence

that supported the conviction. Based on the evidence presented, the guilty

verdict was not so contrary to the evidence as to shock one’s sense of



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justice. Appellant raises several issues pertaining to credibility, which is the

sole purview of the finder-of-fact. The trial court did not abuse its discretion

when it denied appellant’s post-trial motion.

      Appellant next contends that he must be awarded a new trial because

the trial court erred when it cleared the courtroom and deprived appellant of

a public trial during Jaje’s testimony. (Appellant’s brief at 11.)

                  [T]he right to a public trial is not
                  absolute; rather, it must be considered in
                  relationship to other important interests.
                  In considering such other interests, a
                  court    must       assess   all   of    the
                  circumstances to determine if they
                  present a situation in which an exclusion
                  order is necessary.          If the court
                  determines a necessity exists, it may
                  then issue an exclusion order; but the
                  exclusion order must be fashioned to
                  effectuate protection of the important
                  interest without unduly infringing upon
                  the accused’s right to a public trial either
                  through      its    scope    or    duration.
                  Ultimately, the determination of whether
                  to exclude spectators, as well as the
                  determination of the scope and duration
                  of an exclusion order, must be left to the
                  sound discretion of the trial court
                  because it alone is sufficiently close to
                  the circumstances to apprehend fully the
                  subtleties         that       may         be
                  present.[Footnote 8] Thus, only if a trial
                  court abused its discretion in issuing an
                  exclusion order or in fashioning the order
                  will reversible error be found on appeal.
                  Therefore,       we     must     determine:
                  (1) whether      the    court abused      its
                  discretion in issuing the exclusion order;
                  and (2) if it did not, whether it abused its



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                   discretion in fashioning the scope and
                   duration of the order.

                        [Footnote 8] For example,
                        the trial court is in a position
                        to assess demeanor which in
                        turn may indicate          fear,
                        nervousness, and confusion
                        in a witness, where an
                        appellate court is not.

            Commonwealth v. Knight, 469 Pa. 57, 65-66, 364
            A.2d 902, 906-907 (1976).

Commonwealth v. Conde, 822 A.2d 45, 49 (Pa.Super. 2003) (other

footnotes omitted).

      In Commonwealth v. Penn, 562 A.2d 833 (Pa.Super. 1989), appeal

denied, 590 A.2d 756 (Pa. 1991), cert. denied, 502 U.S. 816 (1991), a

case cited by both parties and the trial court, this court addressed the issue

of witness intimidation in terms of the trial court’s decision to clear a

courtroom. In Penn, this court explained:

            Witness     intimidation    and      retaliation   against
            witnesses      are    serious     crimes      which    the
            Commonwealth has clear interest in deterring,
            detecting, and sanctioning. First and foremost, the
            Commonwealth has an interest in protecting its
            citizens from intimidation and injury by criminal
            conduct. Second, the Commonwealth also has an
            interest in protecting victims and witnesses from
            intimidation     or   retaliation     because     of   the
            indispensable role they play in the operation of the
            justice system. . . .

            ....

            Succinctly, if the means of justice are to be
            preserved and the ends of justice protected, courts


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           must exercise their discretion so as to dispel any
           belief that intimidation of victims or witnesses will
           serve the ends to which the intimidation is directed.

Id., 562 A.2d at 837 (citations omitted).

     Here, Jaje began testifying on direct examination. When asked why he

did not tell the police that he recognized the person he saw running to a

bicycle and riding away when he looked out his window after he heard

gunshots, Jaje replied that he did not tell police because he feared that

appellant might retaliate against him if he learned that Jaje implicated

appellant in the shooting.     (Notes of testimony, 8/10/17 at 111.)   The

following interchange took place when Jaje was asked whether he could see

the person in the courtroom that he saw get on the bicycle after he heard

the gunshots:

           Q:    Now, Mr. Jaje, as you sit in this courtroom
                 today, do you see the person you saw that
                 night get onto the bike after you heard the
                 gunshots?

           THE COURT: Can you answer the question?

           [Jaje]: I’m sorry?

           THE COURT: Can you answer the question?

           [Jaje]: Yes, sir.

           BY MR. TUMOLO [the prosecuting attorney]:

           Q.    Can you just tell us what that person is
                 wearing in the room?

           [Jaje]: (Pause).



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                 Could I have a glass of water, please.

          ....

          [Jaje]: Could I have a glass of water, please.

          THE COURT: A glass of water, please.

          BY MR. TUMOLO:

          Q:     Do you need more water?

          [Jaje]: I’m okay.

          Q:     Mr. Jaje, can you tell us the person in the
                 courtroom that you just said was the one that
                 got on the bike after you heard gunshots, can
                 you tell us what he’s wearing or point to him
                 with your finger?

          [Jaje]: (Pause.)

          THE COURT:         Mr. Jaje, are you able to answer the
          question?

          [Jaje]: I’m sorry?

          THE COURT: Can you answer the question please.

          BY MR. TUMOLO:

          Q:     Are you nervous right now, Mr. Jaje?

          A:     Yes, sir.

          Q:     Are you shaking a little bit?

          A:     Yes, sir.

          Q:     Do you need to take a quick recess or are you
                 okay?

          A:     Please.



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           THE COURT: We’ll take a recess.

           ....

           THE COURT: The jury is not in the room. Counsel
           and the defendant are present.

           MR. TUMOLO: Thank you, your Honor.

                 Your Honor, during the break your court staff
           who was outside with the witness did inform me the
           witness said that he would be more comfortable and
           ready to resume if the courtroom could be cleared.
           For that reason, given the obvious effect testifying is
           having on him, I’m going to make that request at
           this point. That both sides clear the courtroom to
           allow him to finish his testimony.

           MR. MANDELL: And I would strongly object, your
           Honor. This is a public courtroom. The public is
           entitled to be in the courtroom. Family and friends
           of [appellant] are here and they should be allowed to
           see what takes place.

           THE COURT:        I want to make sure that the
           courtroom does remain public. But in a situation
           such as this, I think it would be appropriate for me
           to clear the courtroom, both sides. So I’m going to
           ask the people on both sides please stay in the
           hallway. We’ll call you back when it’s permitted.
           Thank you.

Id. at 113-117.

     Here, the trial court had the opportunity to assess Jaje’s demeanor

first hand prior to rendering the decision to clear the courtroom in order to

protect Jaje from possible intimidation when Jaje was on the witness stand.

This court finds that the trial court did not abuse its discretion when it




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ordered that the courtroom be empty during the remainder of Jaje’s

testimony.4

      Judgment of sentence affirmed.     Application for extension of time to

file a brief is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/21/18




4 Appellant also contends that he is entitled to a new trial where the weight
of the evidence does not support premeditation or a specific intent to kill on
the part of appellant. (Appellant’s brief at 3.) Although appellant lists this
issue in his “Questions Presented,” he does not address it in the argument
section of his brief.       Consequently, this issue is waived.           See
Pa.R.A.P. 2119; Hinkal v. Pardoe, 133 A.3d 738, 740-741 (Pa.Super.
2016).


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