J-S57015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CHRIS JOHNSON                           :
                                         :
                   Appellant             :   No. 513 EDA 2018

          Appeal from the Judgment of Sentence October 18, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001191-2017


BEFORE:    PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, J.                      FILED DECEMBER 21, 2018

     Appellant, Chris Johnson, challenges the judgment of sentence entered

in the Philadelphia County Court of Common Pleas, following his conviction for

first-degree murder. We affirm.

     The trial court summarized the relevant facts of this case as follows.

     The victim, Marquise Matthews, sold heroin on the 2900 block of
     Rosehill Street in Philadelphia. [Appellant] also sold heroin, just
     two blocks west, at C and Cambria Streets. The blocks in the
     neighborhood each sold their own “brand” of heroin. No two
     brands were sold on the same block. The brand sold on Matthews’s
     block was “Block Party.”

     On the corner of the 2900 block of Rosehill and Cambria Streets
     was the Good Good Chinese store. Both Matthews and [Appellant]
     frequented the store. Multiple brands of heroin, including Block
     Party, were sold there, which was uncommon. Typically, when
     competing brands were sold within the same territory, an
     altercation would result.

     On the evening of October 11, 2016, a shootout occurred behind
     the store. No one was injured in the shooting; however, fourteen

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        bags of Block Party heroin were recovered at the scene, as well as
        two .45-caliber and five 9-millimeter fired cartridge casings.

        Five nights later, on October 16, 2016, Matthews was selling drugs
        with his associate, Jamil Myrick, near the middle of the 2900 block
        of Rosehill Street. Also with the pair was another associate known
        as “Poo.” At approximately, 12:09 a.m., Matthews and Myrick
        were standing outside on the steps of a home, and Poo was
        perched on a car across from them, when [Appellant] approached
        the group and began to fire shots at them. Myrick immediately
        began to run down the street, while Poo dove out of the way.
        Matthews also tried to dive out of the way[;] however, he was
        struck once in the head. [Appellant] fled the scene, running down
        Cambria towards C Street.

        Philadelphia police officers responded to the scene upon a report
        of shots fired. When they arrived, they found Matthews laying on
        the sidewalk. The officers placed Matthews in a police wagon, and
        began to transport him to Temple University Hospital. However,
        while en route, the wagon was met by paramedics from the
        Philadelphia Fire Department, who pronounced Matthews dead.

        Philadelphia police detectives then conducted an investigation of
        the shooting. During the course of the investigation, Tyera
        Hyman, Jamil Myrick, and Keenan Bernard positively identified
        [Appellant] as the shooter. Additionally, police recovered six .45-
        caliber fired cartridge casings from the scene. Ballistics confirmed
        that all of the casings came from the same gun, and that the same
        gun was also used in the October 11, 2016 shootout that occurred
        behind the Good Good Chinese store. A text message was
        recovered from [Appellant’s] cell phone, in which he admitted to
        participating in a shootout on October 11, 2016.

Trial Court Opinion, filed 5/4/18, at 2-4 (citations omitted).

        Appellant proceeded to a jury trial, where he was convicted of first-

degree murder, firearms not to be carried without a license, carrying firearms

on public streets in Philadelphia, and possessing instruments of crime.1 The

court sentenced Appellant to life imprisonment without the possibility of
____________________________________________


1   18 Pa.C.S.A. §§ 2502(a); 6106(a)(1); 6108; and 907(a), respectively.

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parole. Appellant filed a timely post-sentence motion, which was denied.

Appellant then filed a notice of appeal. This case is now properly before us.

      In his first issue, Appellant contests the admission of cumulative

evidence about his history of dealing drugs. Specifically, Appellant contends

his drug dealing was minimally connected to Marquise Matthews’s murder,

and the evidence damaged his character, thus depriving him of a fair trial.

      We evaluate the admission of evidence as follows.

      With regard to the admission of evidence, we give the trial court
      broad discretion, and we will only reverse a trial court’s decision
      to admit or deny evidence on a showing that the trial court clearly
      abused its discretion. An abuse of discretion is not merely an error
      in judgment, but an overriding misapplication of the law, or the
      exercise of judgment that is manifestly unreasonable, or the result
      of bias, prejudice, ill-will or partiality, as shown by the evidence
      of the record.

Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (citation

omitted).

      “All relevant evidence is admissible, except as otherwise provided by

law.” Pa.R.E. 402. “Evidence is relevant if it logically tends to establish a

material fact in the case, tends to make a fact at issue more or less probable

or supports a reasonable inference or presumption regarding a material fact.”

Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002) (citation

omitted). The court may exclude relevant evidence if its probative value is

outweighed by a danger of unfair prejudice. See Pa.R.E. 403.

      While evidence that a defendant has committed other crimes or bad acts

may not be used to prove the defendant’s propensity for committing crimes,


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such evidence may be admissible to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake or accident. See

Pa.R.E. 404(b)(1)-(2). The Pennsylvania Supreme Court “has also recognized

the res gestae exception,” which permits the admission of evidence of other

crimes or bad acts to “tell the complete story.” Commonwealth v. Hairston,

84 A.3d 657, 665 (Pa. 2014) (internal quotations and citation omitted). “In

determining whether evidence of other prior bad acts is admissible, the trial

court is obliged to balance the probative value of such evidence against its

prejudicial impact.” Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa.

2009) (citation omitted).

      And, “[e]vidence may be excluded if its probative value is outweighed

by the needless presentation of cumulative evidence.” Commonwealth v.

Flamer, 53 A.3d 82, 88 n.6 (Pa. Super. 2012) (citation omitted). “Evidence

that strengthens or bolsters existing evidence is corroborative evidence; we

have previously explained that corroborative evidence is not cumulative

evidence.” Id. (emphasis added; citation omitted).

      Here,   the   Commonwealth      presented   evidence    of   Appellant’s

involvement in a drug-dealing organization. Specifically, counsel elicited

evidence that: the area where Mr. Matthews was murdered is known for its

high volume of drug dealing; Mr. Matthews sold drugs; Appellant also dealt

drugs around the time of the incident; each block belonged to a different drug

gang; two rival gangs both sold drugs in the Good Good Chinese store, which

was highly unusual; a shootout occurred at the store five nights before Mr.

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Matthews’s murder, over a suspected drug territory dispute; that Appellant

admitted his participation in the shootout to a friend via text message; and

that Appellant also admitted he was carrying a gun at the time. See N.T. Trial,

10/12/17, at 72-192. Based on this evidence, the Commonwealth theorized

that Appellant had murdered Mr. Matthews because of a drug territory dispute.

      To the extent Appellant denigrates this evidence as cumulative, he fails

to identify any evidence that merely reiterates, but does not strengthen or

bolster, existing evidence. Instead, Appellant challenges the introduction of

all evidence showing “alleged prior drug dealing creat[ing] a presumption of

premeditation.” Appellant’s Brief, at 10. But the court permitted the

Commonwealth to present this evidence in order to show Appellant’s motive

for the crime. Evidence of Appellant’s involvement in an illegal drug

distribution organization was certainly prejudicial. However, it also provided

key evidence for the jury to understand how he knew Mr. Matthews, and why

Appellant wanted to kill him.

      And, the trial court presented a limiting instruction regarding this

evidence, telling the jury to consider the information only as evidence to

establish Appellant’s motive for murder. See Commonwealth v. Hairston,

84 A.3d 657, 666 (Pa. 2014) (noting that jurors are presumed to follow trial

court’s instructions). Thus, we find the court did not abuse its discretion in

determining the probative value of this evidence outweighed its prejudicial

effect, and admitting it. Appellant is due no relief on this claim.




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      In Appellant’s second issue, he challenges the weight of the evidence

supporting his conviction. In particular, he takes issue with conflicting

statements made by two Commonwealth witnesses about Appellant’s precise

location at the time of the shooting.

      We do not review challenges to the weight of the evidence de novo on

appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).

Rather, we only review the court’s exercise of its discretionary judgment

regarding the weight of the evidence presented at trial. See id.

      A weight of the evidence claim concedes that the evidence is sufficient

to sustain the verdict. See Commonwealth v. Widmer, 744 A.2d 745, 751

(Pa. 2000). With regard to weight claims, “the trial court is under no obligation

to view the evidence in the light most favorable to the verdict winner.”

Commonwealth v. Lewis, 911 A.2d 558, 565 (Pa. Super. 2006) (citation

omitted). In evaluating weight of the evidence claims, the appellate court may

not substitute its judgment based on a cold record for that of the trial court.

See Commonwealth v. Izurieta, 171 A.3d 803, 808 (Pa. Super. 2017).

      “[W]e may only reverse the lower court’s verdict if it is so contrary to

the evidence as to shock one’s sense of justice.” Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is

said to be contrary to the evidence such that it shocks one’s sense of justice

when “the figure of Justice totters on her pedestal,” or when “the jury’s

verdict, at the time of its rendition, causes the trial judge to lose his breath,

temporarily, and causes him to almost fall from the bench, then it is truly

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shocking to the judicial conscience.” Commonwealth v. Davidson, 860 A.2d

575, 581 (Pa. Super. 2004) (citations omitted).

      At trial, the Commonwealth presented evidence from Tyera Hyman.

Because Ms. Hyman refused to cooperate and ultimately recanted her previous

statement to police that she recognized Appellant as the shooter, the

Commonwealth introduced that statement to impeach her testimony. See N.T.

Trial, 10/11/17, at 113. In it, Ms. Hyman told police she had previously gone

on a date with Appellant, and had seen him many times before the shooting.

See id., at 124. On the night of the shooting, Ms. Hyman stated that she was

leaving her house to go to the corner store when she noticed Mr. Matthews

and a friend sitting on the steps of a house on Rosehill Street. See id., at 119.

She also observed Appellant leaning against cars parked on the block,

seemingly speaking to Mr. Matthews and the other man. See id., at 120. Ms.

Hyman said she then saw Appellant pull out a gun and fire several times at

the men, before she ran into her home for safety. See id. According to Ms.

Hyman, she watched from the window as Appellant walked past her door and

down the block after the shooting. See id. After Appellant passed, she left her

house and saw Mr. Matthews lying in the street, dead from a gunshot wound

to his head. See N.T. Trial, 10/11/17, at 121. At the police station, Ms. Hyman

identified Appellant’s photo as that of the shooter. See id., at 126.

      The Commonwealth then called Jamil Myrick to the stand. Mr. Myrick

stated that he, Mr. Matthews, and a friend of Mr. Matthews’s whom he did not

know were sitting on the steps of a house on Rosehill Street. See id., at 187.

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Mr. Myrick stated that Mr. Matthews and Mr. Matthews’s friend were selling

heroin that evening, which was branded “Block Party.” See id., at 190. Mr.

Myrick told police that Appellant walked across the street and began shooting

at them, killing Mr. Matthews. See id., at 193-196.

       The Commonwealth then introduced Mr. Myrick’s previous statement to

police on the night of the murder into evidence. See id., at 198. In it, Mr.

Myrick told the officers that he did not know the shooter, but would recognize

him if he saw him again. See N.T. Trial, 10/11/17, at 235. Mr. Myrick then

identified Appellant’s picture in a photo array as that of the shooter. See id.,

at 205.

       On cross-examination, Mr. Myrick told Appellant’s counsel that Mr.

Matthews’s friend who had been with them on the night of the shooting was

nicknamed “Poo.” See id., at 218. Mr. Myrick had previously told police he did

not know the third man’s name, only that the man was a friend of Mr.

Matthews’s. See id. Defense counsel vigorously cross-examined Mr. Myrick

on this point, emphasizing that he had lied to investigators. See id., at 218-

223.

       In his brief, Appellant recapitulates the above evidence and argues that

Mr. Myrick’s revelation of the identity of the third friend as “Poo” casts doubt

on exactly where that man was standing at the time of the shooting.

Seemingly, Appellant believes that if Poo was leaning against the car, Poo may

have been the shooter. Appellant summarily concludes that the weight of the




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evidence was against his conviction, as Poo’s existence means Appellant could

not have been the shooter.

      Appellant is confused on several points. Initially, Appellant fails to

explain how the disclosure of Poo’s name makes him the likely shooter. In his

interview with police, Mr. Myrick informed police that another man was present

on the night of the shooting, and that the other man was a friend of Mr.

Matthews’s. Appellant does not claim to have been unaware that another man

was present that night, only that he did not know that individual’s name.

Appellant offers no other evidence to substantiate his belief that Poo may have

killed Mr. Matthews.

      And the Commonwealth offered substantial evidence that Appellant was

the shooter. Ms. Hyman told police in her statement that Appellant approached

the men sitting on the step and fired his handgun several times, killing Mr.

Matthews. Ms. Hyman had met Appellant many times before and was unlikely

to be confused about his identity. She selected Appellant’s picture out of a

photo array and confirmed he was the shooter. Though Ms. Hyman was

uncooperative in her testimony at trial, the Commonwealth introduced her

previous statement to police. And, her statement was corroborated by that of

Mr. Myrick. Mr. Myrick identified Appellant in court as the shooter. Appellant

elicited no testimony from Mr. Myrick that might demonstrate a motive for

wrongly accusing Appellant of a crime that Poo committed. Thus, we fail to

see how the mere revelation of Poo’s name could overcome the considerable




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evidence presented of Appellant’s guilt. We decline to grant Appellant relief on

this claim. Accordingly, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/18




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