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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JEREMY BROWN

                            Appellant                     No. 3598 EDA 2014


           Appeal from the Judgment of Sentence November 6, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003340-2014


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 13, 2016

        Jeremy Brown appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County following a non-jury trial1 in

which     he   was   convicted     of   aggravated   assault,2   robbery,3   criminal

conspiracy,4 carrying a firearm without a license,5 carrying a firearm on




____________________________________________


1
  Brown was tried with his co-defendant, Karaun Jones, who has filed a
separate appeal at docket number 3412 EDA 2014.
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 3701(a)(1)(ii).
4
    18 Pa.C.S. § 903(c).
5
    18 Pa.C.S. § 6106(a)(1).
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public streets or public property,6 and possessing an instrument of crime.7

After review, we affirm.

        The trial court summarized the facts of this matter as follows:

        At trial, the Commonwealth first presented the testimony of
        Philadelphia Police Officer Jeffrey McMahon. Officer McMahon
        testified that, on January 13, 2014, at approximately 7:30 p.m.,
        he received a radio call directing him to the 2400 block of North
        22nd Street in Philadelphia.        There, he encountered the
        complainant, Joel Flowers, lying in the street, suffering from a
        gunshot wound.        Based on information gathered from Mr.
        Flowers, Officer McMahon submitted flash information describing
        the perpetrators as two black males, both 20 years old and
        wearing black hooded sweatshirts, one armed with a black
        revolver. Officer McMahon then transported Mr. Flowers to
        Temple University Hospital for treatment. He testified that two
        individuals matching the descriptions – [Brown] and Co-
        Defendant Karaun Jones – were brought to the hospital for
        identification, and Mr. Flowers positively identified them as his
        assailants.

        Philadelphia Police Officer Damien Stevenson testified next for
        the Commonwealth. Officer Stevenson testified that on January
        13, 2014, at approximately 7:30 p.m., he received a radio call of
        a shooting, directing him to the 2400 block of North 22 nd Street.
        Approximately one minute later, the Tactical Aviation Unit (police
        helicopter), reported that it was following two males walking
        southbound on the 2000 block of North 23rd Street, one of
        whom just crossed to the other side of the street. Officer
        Stevenson immediately proceeded to that location, where he
        encountered [Brown] on the west side and Co-Defendant Jones
        on the east side of the street. He ordered the males to stop, at
        which time [Brown] took off running, while Co-Defendant Jones
        froze in place. Officer Stevenson pursued [Brown] on foot, while
        back-up officers apprehended Co-defendant Jones. With the
____________________________________________


6
    18 Pa.C.S. § 6108.
7
    18 Pa.C.S. § 907(a).



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     assistance of police helicopter, Officer Stevenson apprehended
     [Brown] inside an alley between 23rd and Crosby Streets.

     The Commonwealth next presented eyewitness Rasheia Lyles.
     Ms. Lyles testified that on January 13, 2014, at approximately
     7:30 p.m., she was walking northbound on the 2400 block of
     North 22nd Street, when she observed three males in close
     proximity to each other. At first blush, she thought the males
     were friends; within seconds, however, she heard a gunshot,
     and saw the complainant, Joel Flowers, running toward her, with
     the two other males fleeing in the opposite direction.

     She testified that Mr. Flowers collapsed to the ground, clutching
     his right bicep and yelling “my arm, my arm.” Ms. Lyles called
     the police, who arrived at the scene shortly thereafter. Upon
     providing physical descriptions to the police, she was transported
     to 23rd and Diamond Streets, where she positively identified
     [Brown] as one of the assailants.

     Additionally, at 8:05 p.m. on the same date – i.e., 35 minutes
     after the incident – Ms. Lyles was interviewed by Philadelphia
     Police Detective Martin. According to her recorded statement,
     which she signed and adopted at 8:58 p.m., she not only
     provided physical descriptions of both perpetrators, but
     positively identified them as well[.]

                                    ...

     The Commonwealth also called Detective Paul Wong to the
     stand. Detective Wong testified that, approximately two hours
     after his arrest, Co-Defendant Jones provided a statement in
     which he claimed that he saw another male “running fast” on
     22nd Street, and decided to run with him, even though he didn’t
     know what happened[.]

                                    ...

     Finally, the Commonwealth presented the complainant, Joel
     Flowers. Mr. Flowers testified that on January 13, 2014, he was
     walking on the 2400 block of North 22nd Street, when two males
     – whom he identified as [Brown] and Co-Defendant [Jones] –
     walked toward him from the opposite direction. When [Brown]
     and Co-Defendant Jones walked past him, Mr. Flowers heard
     “Yo,” prompting him to turn around, at which point [Brown]
     pointed a handgun at his face and said, “Give me what you got.”
     Co-defendant Jones stood next to [Brown] as he pointed the

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      gun; Mr. Flowers reached into his pockets, pulled out his hands,
      and with his palms up, said, “I ain’t have nothing.” When he
      turned to walk away, [Brown] shot him in the right bicep.
      [Brown] and his cohort then fled southbound on 22nd Street, and
      Mr. Flowers collapsed on the ground.

      Mr. Flowers testified that he then was approached by a woman
      (Ms. Lyles), who called the police and stayed with him until they
      arrived.    After describing his assailants to police, he was
      transported to the emergency room at Temple University
      Hospital. Within two hours of the robbery, Mr. Flowers positively
      identified [Brown] and Co-Defendant Jones as his assailants, and
      also positively identified them in court.

Trial Court Opinion, 7/2/15, at 2-6 (citations omitted).

      Brown was sentenced on November 6, 2014, to an aggregate term of

7 to 14 years’ incarceration. Brown timely filed a notice of appeal and court-

ordered concise statement of errors complained of on appeal. Brown raises

the following issues for our review:

      1. Is [Brown] entitled to an arrest of judgment on all charges
         where the evidence is insufficient to sustain the charges?

      2. Is [Brown] entitled to a new trial where, as here, the greater
         weight of the evidence does not support the verdict?

Brief for Appellant, at 3.

      In considering sufficiency of the evidence claims,

      we must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. . . . Where
      there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      Of course, the evidence established at trial need not preclude
      every possibility of innocence and the fact-finder is free to
      believe all, part, or none of the evidence presented.



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Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

The Commonwealth can satisfy its burden via wholly circumstantial

evidence. Id.

      Here,     Brown   concedes    that   “the    perpetrator   [engaged]   in   an

[a]ggravated [a]ssault and [r]obbery and hence, counsel will not engage in

[an] analysis of the elements of those crimes nor of [firearms charges] or

[c]onspiracy.    However, the Commonwealth still must prove that [Brown]

was   properly    identified.”     Thus,   Brown    does   not   dispute   that   the

Commonwealth presented sufficient evidence of each element of the crimes

in this matter; rather, the sufficiency claim is limited to whether Brown was

adequately identified as the perpetrator.

      Brown argues that Flowers did not positively identify Brown at trial

based upon the following exchange during direct examination:

      Q: Do you see either of [the two assailants] in this courtroom
      now?

      A: Yeah. They look different. You know what I’m saying? But
      they look familiar, yeah.

      Q: Are those the individuals that you saw that night?

      A: Yeah.

N.T. Trial, 9/3/14, at 143.        Flowers went on to identify Brown as the

individual who had demanded his possessions and shot the gun.                     Id.

Brown’s argument myopically focuses on Flowers’ use of the word “familiar”

to argue that Flowers did not positively identify Brown.             However, this

argument is belied by the record, since Flowers affirmatively stated that


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Brown and Jones were the perpetrators and identified the role each had in

the incident. Moreover, both Flowers and Lyles positively identified Brown

as one of the perpetrators immediately after the incident occurred, and Lyles

also identified Brown during trial.   For these reasons, Brown’s sufficiency

argument is without merit.

     Brown also asserts that he is entitled to a new trial because the weight

of the evidence does not support the verdict. However, before reaching the

merits of that question, we must determine whether Brown’s weight claim

has been properly preserved for consideration on appeal. Commonwealth

v. Mikell, 968 A.2d 779, 780 (Pa. Super. 2009).          The relevant rule,

Pennsylvania Rule of Criminal Procedure 607, provides as follows:

     (A) A claim that the verdict was against the weight of the
     evidence shall be raised with the trial judge in a motion for a
     new trial:

           (1) orally, on the record, at any time before sentencing;

           (2) by written motion at any time before sentencing; or

           (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A).   Here, Brown did not raise his weight claim until he

included it in his concise statement filed pursuant to Pa.R.A.P. 1925(b).

Thus, Brown has waived this claim by failing to comply with Rule 607, and

we are precluded from engaging in appellate review.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2016




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