J-S52006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LANCE EVERETT                              :
                                               :
                       Appellant               :   No. 999 EDA 2018

           Appeal from the Judgment of Sentence February 21, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010257-2016


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 14, 2019

        Lance Everett appeals from the judgment of sentence imposed on

February 21, 2018, in the Court of Common Pleas of Philadelphia County. The

trial court sentenced Everett to a term of 4 to 10 years’ imprisonment, after

a jury convicted him of a violation of the Uniform Firearms Act (VUFA).1 On

appeal, Everett argues the verdict was against the weight of the evidence and

the trial court erred in admitting hearsay statements made by the victim. For

the reasons discussed below, we affirm.

        The trial court summarized the facts underlying Everett’s conviction as

follows:


____________________________________________


1   18 Pa.C.S.A. § 6105(a)(1).
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       The evidence at trial established that on September 1, 2016, at
       about 8:15 a.m., Detective (then Officer) Christian Chaves
       responded to a radio call for a person screaming and proceeded
       to the location of 4731 Princeton Avenue in Philadelphia. At that
       address, he observed Tracey Figueroa[2] who was screaming as
       she exited her house. He asked her what was going on and she
       excitedly attempted to explain what had happened. Detective
       Chaves observed injuries on her face and that she exhibited great
       difficulty composing herself. The Victim was able to tell him that
       a male had struck her on the side of her head with a gun and that
       she was having a hard time hearing from the side of her face that
       showed redness and injury. She screamed that she could not hear
       properly from one ear.

       At trial the prosecutor asked Detective Chaves, “. . . what exactly
       did she tell you when you asked her what happened?” Defense
       counsel objected. [The trial court] overruled the objection stating
       that the witness’s account was an excited utterance. According to
       Detective Chaves, [the Victim] stated:

              [ ]Lance hit me. It’s my daughter’s boyfriend and he
              just hit me with a gun. And he was threatening me
              with a gun. He kept pointing the gun at me and
              racking it saying he’s going to kill me. And he kept
              hitting me in the head.[ ]

       (N.T. [Trial,] 12/7/18, p. 26).

       [The Victim] told Detective Chaves that Lance ran westbound on
       Princeton Street and made a right turn onto Marsden Street. She
       said that he had been wearing a black jacket, a white shirt and
       black pants; he had a gun in his waistband. Detective Chaves
       immediately placed her description over police radio for
       transmission.

       Detective Chaves quickly learned that a suspect was being held
       by Officer Patrick Owens. Detective Chaves brought [the Victim]
       to Officer Owens, where she identified [Everett] as her assailant
____________________________________________


2 The trial transcripts lists the victim’s last name as “Fugarino.” N.T. Trial,
12/07/2017, at 27. She did not testify at trial and, it is not apparent from the
record, which is the correct version of her name. Accordingly, we will refer to
her as “the Victim.”

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     [Everett] falsely identified himself as Shiheem Young. Later at
     trial it was stipulated that [his] legal name was Lance Richard
     Jamal Everett.

     On cross-examination, Detective Chaves acknowledged that he
     had observed a white male run through alleyways and jump
     fences, but he did not attempt to stop him. Officer Patrick Owens
     testified that he began to drive around the area upon hearing the
     description of the assailant over the police radio. He had observed
     a black male, later identified by [the Victim] as [Everett],
     accompanied by a white male cross Wellington Street and walk
     eastbound at Torresdale Avenue. The black male was wearing a
     white shirt and black pants and was holding a black jacket in his
     left hand.

     Officer Owens testified that as he drove his patrol car past the two
     men, the black male threw his jacket on the sidewalk, turned and
     continued to walk down Torresdale Avenue. Officer Owens drove
     up to the two men and told the black male to stop. The white
     male walked away. Officer Owens yelled at the white male to
     stop. However, as sirens were being sounded, the white male ran
     north on Torresdale Avenue. Officer Owens held the black male
     until a backup officer arrived and he turned the black male over
     to the backup officer. Officer Owens immediately retrieved the
     black jacket that [Everett] had discarded after observing [the]
     approach of law enforcement. From that black jacket Officer
     Owens retrieved a firearm inside the left jacket pocket. Officer
     Owens testified that the white male was subsequently
     apprehended by police officers at a nearby Dunkin Donuts store.
     That white male was transported to Officer Owens who identified
     him as the man who had run away from him.

     On cross-examination, Officer Owens testified that the gun was
     registered in the name of Jason Rizzolo. The name Jay Torpey
     was also associated with the case. Police Officer Mark Wilusz of
     the Firearms Identification Unit testified that the gun recovered by
     Officer Owens was a Kel-Tec model P-11, semiautomatic pistol, .9
     millimeter Luger. The gun had been duly test fired and found to
     be operable. It was stipulated that [Everett] had a prior qualifying
     conviction for possession with intent to deliver a controlled
     substance at CP 51-CR-0014348-2014, rendering him ineligible by
     statute to carry or possess a firearm. [Everett] did not testify and
     rested without offering any witnesses.


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       After deliberations, the jury found [Everett] guilty of violating the
       Uniform Firearms Act under 18 Pa.C.S.[A.] Section 6105[(a)(1)],
       which prohibits a person previously convicted of a drug offense
       from possessing a firearm. Sentencing was deferred pending the
       completion of a pre-sentence report and mental health evaluation.
       On February 21, 2018, [the trial court] sentenced [Everett] to an
       aggregate term of four (4) to ten (10) years of state supervised
       confinement and imposed rehabilitative conditions[.]

       Post-sentence motions were filed and subsequently denied on
       March 8, 2018. A timely Notice of Appeal to the Superior Court
       was filed on March 30, 2018. On November 21, 2018, [the trial
       court] filed an Order requesting [Everett] to file a Statement of
       Errors Complained of on Appeal pursuant to [Pennsylvania Rule of
       Appellate Procedure 1925(b)].       On December 11, 2018, a
       statement was filed on behalf of [Everett]. [On February 5, 2019,
       the trial court filed an opinion.]

Trial Court Opinion, 5/02/2019, at unnumbered pages 2-4 (most record

citations omitted).

       In his first issue on appeal, Everett contends the verdict was against the

weight of the evidence.3 Everett’s Brief, at 19-25. A weight of the evidence

claim concedes the sufficiency of the evidence. Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000). Our review of a challenge to the weight of the

evidence supporting the verdict is settled:

       The weight of the evidence is a matter 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. A new trial is
       not warranted because of a mere conflict in the testimony and
       must have a stronger foundation than a reassessment of the
       credibility of witnesses. Rather, the role of the trial judge is to
       determine that notwithstanding all the facts, certain facts are so
____________________________________________


3 Everett preserved this claim by filing a post-sentence motion.         See Pa.
R.Crim.P. 607; Post-Sentence Motion, 3/08/2018, at 2-3.


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      clearly of greater weight that to ignore them or to give them equal
      weight with all the facts is to deny justice. On appeal, our purview
      is extremely limited and is confined to whether the trial court
      abused its discretion in finding that the jury verdict did not shock
      its conscience. Thus, appellate review of a weight claim consists
      of a review of the trial court’s exercise of discretion, not a review
      of the underlying question of whether the verdict is against the
      weight of the evidence. An appellate court may not reverse a
      verdict unless it is so contrary to the evidence as to shock one’s
      sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en

banc) (citation omitted), appeal denied, 168 A.3d 1237 (Pa. 2017).

      Here, Everett contends the verdict was against the weight of the

evidence because “there is no physical or forensic evidence whatsoever linking

Mr. Everett to the firearm recovered by police.” Everett’s Brief at 17. He

insists that in the officer’s initial radio call to other police officers, the arresting

officer did not specify which individual threw the jacket. See id. He further

emphasizes     he   complied with all       police   instructions    while   the   man

accompanying him fled. See id. Lastly, he notes the other man gave his

name as “Jay” which is closer to the name on the gun registration, “Jason.”

Id.

      In its opinion, the trial court denied Everett’s weight of the evidence

claim, citing the testimony of the police officers.           See Trial Ct. Op., at

unnumbered pages 6-7. Although the court properly cited the standard for a

weight of the evidence argument, the court then turns to a sufficiency of

evidence analysis before concluding the verdict was not against the weight of

the evidence. See id. at unnumbered pages 5-7. Nevertheless, it is evident

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from the court’s discussion that it found no basis to overturn the jury’s verdict

and credibility determinations. We, in turn, find no abuse of discretion on the

part of the trial court. See Rosser, supra.

      The Victim described to the police the details of the events leading up

to the police chase and subsequently identified Everett as the man who struck

her with a gun. See N.T. Trial, 12/07/2017, at 26-29, 45-46. Police Officer

Patrick Owens testified regarding his apprehension of Everett and specifically

testified Everett was the individual who dropped the jacket in which he found

the gun. See id. at 75-86. The jury found the officers’ testimony credible,

and, accordingly, convicted Everett of the above-referenced crime. We agree

with the trial court’s conclusion that the verdict does not “shock one’s sense

of justice.” Rosser, supra, 135 A.3d at 1090.

      In his second and final claim, Everett asserts, “the trial court abused its

discretion when it admitted an ‘excited utterance’ by [the Victim].” Everett’s

Brief, at 18; see also id. at 26-31. Specifically, Everett claims the statement

was unreliable because, in the statement made to Detective Chavez, the

Victim claimed he hit her with a gun while in her 911 call she said Everett did

not have a gun. Id. He also claims the statement was unduly prejudicial

because it concerned an incident of domestic violence. Id. However, Everett

waived this claim.

      Our standard of review regarding the admissibility of evidence is well-

established: “[I]n reviewing a challenge to the admissibility of evidence, we


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will only reverse a ruling by the trial court upon a showing that it abused its

discretion or committed an error of law. . . . To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.

Super. 2012) (citation omitted), appeal denied, 62 A.3d 379 (Pa. 2013).

      The admissibility of hearsay is addressed in Rules 801, 802, and
      803 of the Pennsylvania Rules of Evidence. Rule 801(c) defines
      hearsay as “a statement . . . offered in evidence to prove the truth
      of the matter asserted.” Pa.R.E. 801(c). Hearsay evidence is
      inadmissible under Rule 802. Out of court statements are not
      inadmissible hearsay, however, if they are offered for some
      relevant purpose other than to prove the truth of the matter
      asserted. Commonwealth v. Ali, 608 Pa. 71, 126, 10 A.3d 282,
      315 (2010); Commonwealth v. Puksar, 559 Pa. 358, 368, 740
      A.2d 219, 225 (1999)[, cert. denied, 531 U.S. 829 (2000)].

Commonwealth v. Wantz, 84 A.3d 324, 336 (Pa. Super. 2014).

      Here, as discussed above, Everett claims the trial court improperly

admitted the Victim’s statements because they were unreliable and unduly

prejudicial. See Everett’s Brief, at 19. At trial, Everett objected only on the

basis the statements were, “hearsay, unless [the Victim] is testifying.” N.T.

Trial, 12/07/2017, at 26. This Court has stated, “[w]here a specific objection

is interposed, other possible grounds for the objection are waived.”

Commonwealth v. Shank, 883 A.2d 658, 672 (Pa. Super. 2005) (citation

omitted), appeal denied, 903 A.2d 538 (Pa. 2006). Because Everett did not

object to the admission of the statements on the grounds of unreliability and




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prejudice, he has waived this claim.4 See Shank, supra at 672. Everett’s

second contention does not merit relief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/19




____________________________________________


4In any event, the claim lacks merit. Our Rules of Evidence define an excited
utterance as:

       [a] statement relating to a startling event or condition made while
       the declarant was under the stress of excitement that it caused.

Pa.R.E. 803(2). Excited utterances fall under the common law concept
of res gestae. Commonwealth v. Pronkoskie, 383 A.2d 858, 860 (Pa.
1978). Res gestae statements, such as excited utterances, present
sense impressions, and expressions of present bodily conditions are
normally excepted out of the hearsay rule, because the reliability of such
statements are established by the statement being made
contemporaneous with a provoking event. Id.

Here, we agree with the trial court that the Victim’s statements that
Everett assaulted her and threatened her with a gun made only a few
moments after the incident, while visibly injured, and screaming,
qualifies as an excited utterance. See Trial Ct. Op., at unnumbered
pages 9-10.



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