J-S93046-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MALIK MUHAMMAD

                            Appellant                    No. 724 EDA 2017


         Appeal from the Judgment of Sentence dated March 18, 2015
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005336-2010

BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                                FILED APRIL 13, 2017

        Appellant, Malik Muhammad, appeals from the judgment of sentence

following a bench trial and convictions for first-degree murder, possession of

an instrument of crime, and multiple violations of the Uniform Firearms Act.1

Appellant challenges the sufficiency and weight of the evidence. We affirm.

        We state the facts as set forth in the trial court’s opinion.

               On October 2, 2008, just before midnight, Brian Duran,
           who went by the nickname “Pacman,” went to the area of
           34th and Wallace Streets after receiving a call from a
           friend named Rasheed Harrod.        Upon arrival at that
           location, Duran saw Harrod exit Sam’s Deli Chinese store
           and begin walking in his direction.      Duran then saw
           [Appellant], who had the hood of his sweatshirt drawn
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(a), 907, 6106, and 6108.
J-S93046-16


       tight around his face, come from inside the store, run up
       to Harrod, and shoot him after which [Appellant] fled.

          Harrod eventually died from his injuries. An autopsy of
       his body revealed that he died [from] a single gunshot
       wound to the back of his head. The manner of death was
       deemed to be homicide.

          Duran did not speak to police the night of the incident
       or tell them what he had witnessed because he, himself,
       was a criminal. Sometime after the incident, Duran was
       arrested on federal charges and during a proffer session he
       related that he witnessed [Appellant] shoot Harrod. Duran
       thereafter gave Philadelphia Homicide detectives a
       statement wherein he stated that he had witnessed the
       murder of Harrod.

          Subsequent thereto, both Duran and [Appellant]
       encountered one another when they were being
       transported to the Criminal Justice Center in Philadelphia
       for [Appellant]’s preliminary hearing.         [Appellant]
       threatened to kill Duran and harm his family if Duran
       continued to cooperate with authorities.      During this
       incident, two apparent associates of [Appellant] assaulted
       Duran, which required that he receive medical treatment.
       As a result of the incident, [Appellant]’s preliminary
       hearing had to be postponed.

          In 2009, Mr. Frank Herbert and [Appellant] were
       incarcerated together.    According to Herbert, he and
       [Appellant] were standing with other inmates when
       [Appellant] stated that he had been jailed because of a
       homicide he committed that had been witnessed by a
       couple of people after he exited a Chinese store.
       [Appellant] stated that he had a hood pulled tight on his
       face when he committed the crime and that he had to get
       out of custody to take care of somebody. He further
       stated that associates of his had approached family
       members of a person nicknamed “Pacman” for the purpose
       of having them convince Pacman not to testify against
       him.

          [Appellant] testified in his defense and denied having
       shot Harrod. [Appellant] indicated that Duran accused him

                                  -2-
J-S93046-16


          of committing the crime because [Appellant] refused to sell
          drugs for Duran. He further stated that he confronted
          Duran when they were incarcerated because he was angry
          that Duran was falsely accusing him of the murder.
          Finally, he stated that he had never seen Mr. Herbert
          before Herbert testified.

Trial Ct. Op., 2/10/16, at 1-3. After a bench trial, the court found Appellant

guilty and he was sentenced to life imprisonment plus two-and-a-half to five

years’ incarceration. Appellant did not challenge the weight of the evidence

with the trial court. Appellant timely appealed, and timely filed a court-

ordered Pa.R.A.P. 1925(b) statement.2

       Appellant raises the following issues:

          Whether the evidence is insufficient for Appellant’s
          Convictions stemming from the incidents of October 2,
          2008, where the only evidence against him came from a
          convicted felon who was testifying as part of a plea deal,
          and only saw part of the shooter’s face, at night, while
          looking through a rear view mirror, and another felon who
          did not know Appellant?

          Whether the weight of the evidence is against Appellant’s
          Convictions stemming from the incidents of October 2,
          2008, where the only tangible evidence produced at trial
          came from two convicted felons, Bryan Durant and Frank
          Herbert. Durant who testified under a favorable plea
          agreement, stated he could only see part of the shooter’s
          face from his rear view mirror as he drove away at night,
          which was contradicted by his preliminary hearing
          testimony.   Additionally  Herbert    incredibly testified

____________________________________________


2
 Due to an apparent breakdown in the trial court’s operations, Appellant’s
Rule 1925(b) statement for this docket number was improperly filed at cases
docketed at Nos. 7944, 7945, and 7946 of 2010. These cases also involve
Appellant but are completely unrelated to the instant case.



                                           -3-
J-S93046-16


          [Appellant] confessed to the crime even though he was
          never in the same cell block with him.

Appellant’s Brief at 5 (reordered to facilitate disposition).3

       The standard of review for a challenge to the sufficiency of the

evidence follows:

          When reviewing a sufficiency of the evidence claim, this
          Court must review the evidence and all reasonable
          inferences in the light most favorable to the
          Commonwealth as the verdict winner, and we must
          determine if the evidence, thus viewed, is sufficient to
          enable the fact-finder to find every element of the offense
          beyond a reasonable doubt.

Commonwealth v. Goins, 867 A.2d 526, 527 (Pa. Super. 2004). While a

challenge to the sufficiency of the evidence may be raised for the first time

on appeal, a challenge to the weight of the evidence must be properly

preserved. Rule 607(A) of the Rules of Criminal Procedure states:

          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.


____________________________________________


3
  In his brief, Appellant also raised five issues for a wholly unrelated case.
This Court sua sponte split Appellant’s appeal into two cases, see Order,
3/2/17, and has addressed those five issues in the appeal docketed at No.
1157 EDA 2015. See Commonwealth v. Muhammad, 2017 WL 1205087
(Mar. 31, 2017).



                                           -4-
J-S93046-16


       In challenging both sufficiency and the weight of the evidence

supporting all of his convictions, Appellant contends that the sole eyewitness

was motivated to testify against him because of a plea agreement and that

this witness’ testimony was not credible. Appellant similarly contends that

the witness who testified as to Appellant’s confession to the crimes in

question was also not credible. We conclude Appellant is due no relief.

       Initially, we observe that Appellant failed to preserve his weight claim

with the trial court and thus has waived it. See Pa.R.Crim.P. 607(A). Even if

Appellant had not waived that claim, both his weight and sufficiency claims

lack merit for the reasons stated in the decision by the Honorable Jeffrey P.

Mineheart, and, after carefully reviewing the record, the parties’ briefs, and

Judge Mineheart’s opinion, we affirm on the basis of that opinion. See Trial

Ct. Op., 2/10/16, at 3-9 (holding (1) Appellant’s sufficiency claim, premised

on the credibility of the Commonwealth’s witnesses, is actually a weight

claim and thus lacks merit; (2) regardless, Appellant’s Rule 1925(b)

statement failed to identify the particular element of the specific crime or

crimes he was challenging and thus he waived it; (3) and in any event, the

evidence was sufficient for his convictions).4   Having discerned no error of

____________________________________________


4
  The trial court cited Commonwealth v. Jarowecki, 923 A.2d 425 (Pa.
Super. 2007), in addressing Appellant’s weight claim. See Trial Ct. Op. at 9.
Our Supreme Court reversed this Court in that case on other grounds.
Commonwealth v. Jarowecki, 985 A.2d 955, 969 (Pa. 2009). The reversal
has no bearing on the correctness of the trial court’s disposition. With
(Footnote Continued Next Page)


                                           -5-
J-S93046-16


law or abuse of discretion, we affirm the judgment of sentence below. The

parties are instructed to attach a copy of the trial court’s opinion of February

10, 2016, to all future filings that reference this Court’s decision.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




                       _______________________
(Footnote Continued)

respect to the sufficiency claim relating to Appellant’s convictions under the
Uniform Firearms Act, the trial court held that although the Commonwealth
failed to submit evidence showing that Appellant was not licensed to carry a
gun, the record established that Appellant was not eligible for a license
because he was not yet 21 years old. Trial Ct. Op. at 11-12 & n.5.
Appellant makes no argument on appeal regarding proof of licensure, and
we therefore do not address that issue because it is waived. We note that,
as the trial court points out, id., Appellant received no further penalty
regarding that violation.



                                            -6-
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                                                                                                                                                        CP~S l-CR-0005336-201 O
                                            MALIK MUHAfv1MAD
                                                                                                                                                                                                                              FILED·
                                                                                                                                                                                                                 FEB 1. 0 201~
                                                                                                                      OPINION                                                                         .. PastTrial Unit ·
                                PROCEDURAL HISTORY

                                           The above-named defendant was· charged as of the above Bill and Term number 'With,

                                inter alia, murder, generally; carrying a firearm without a license, carrying a firearm on a public

                                street, and possessing an instnunent of crime, generally. These charges stemmed from- an.

                                incident that occurred on October 2,. 2.008, during which appellant shot                                                                                               and killed                               Rasheed

                         .; Harrod in the area of 341" and Wallace Streets in Philadelphia.

                                          Defendant's              trial commenced before this Co"91i on January 3, 2013, on which date

                                defendant waived his right to a jury trial. The matter                                                         w~s continued                            "until July 19, 2013, on

                            which date this Court, found defendant guilty .of first-degree murder, and the offenses set forth

                            above. On this Court imposed an aggregate sentence of life imprisonment plus five years>

                            incarceration, which sentence was ordered to run consecutive to a life sentence plus thirty-five to

                            seventy years' incarceration imposed   on- defend.ant ·in an unrelated matter. 1 Following the·
                            .                              .     .                                   .



                            I
                            The delay in sentencing resulted from negotiations between the Commonwealth "and defendant aimed at working
                           out a plea deal in the instant matter given that appellant had been convicted of second-degree murder and related
                           offenses in a matter unrelated to the instant matter.
                                                                        e-
  imposition of sentence,
                 .        appellant filed a.notice of appeal and a requested
                                                                     .       Pa.R.A.P. J925(b)



  FACTUAL IDSTORY

          On October 2, 2008, Just before.midnight,     Brian Duran, who went by the nick.name

  "Pacman," went-to the area of34th_ and Wallace Streets after receiving a callfroma      friend named

 Rasheed Harrod. Upon arrival at that location, Duran saw Harrod exit Sam's Deli Chinese store

 and begin walking in his direction.        Duran then saw defendant, who had the hood of his

 sweatshirt drawn tight around his face, come from inside the store, run up to Harrod; and shoot

 him after which defendant fled.

        Harrod eventually died from his injuries. An autopsy of his body revealed that       he died as
 a single gunshot wound to the back of bis head. The manner of death was deemed to be

 homicide.

        Duran did not speak to police the night of the incident or tell them   what he   had witnessed

 because he, himself was a criminal. Sometimeafter.the incident, Duran was arrested on federal

 charges and during a proffer session he related that he witnessed defendant shoot Harrod, Dwan

thereafter gave Philadelphia Homicide detectives a statement wherein. he stated that he had

witnessed the murder of Harrod.

        Subsequent thereto, both Duran and defendant encountered one another when they were
             .     .
being transported to the Criminal Justice Center in Philadelphia for defendant's preliminary .

hearing. Defendant threatened to kill Duran and harm-his family if Duran continued to cooperate

with authorities. During this incident, two apparent associates of defendant assaulted Duran,

which required that he receive medical treatment. As a result of the incident, defendant's

'preliminary hearing had to be postponed.




                                                 2
··----·-- -·-   ---r- . . ---···-·- · --~~~-

                                               •   _1   __




                              In 2009, Mr. Frank Herbert and defendant were incarcerated· together.f According to

                     Herbert, he and defendant were standing with other inmates                  when defendant      stated that he had

                     been jailed because of a homicide he committed that had been witnessed by a couple of people

                     after he exited a Chinese store. _Defendant stated that he had a hood pulled tight on h.is face when

                     he committed the crime and that he· had to get· out of custody to take care of somebody. He

                     further stated that associates of his had approached family members of a person nicknamed

                     "Pacman" for the purpose of having them convince Pacrnan not to testify against him.

                             Defendant testified in his defense-and denied having .shot Harrod. Defendant indicated

                     that Duran accused him of committing the crime because defendant refused to sell drugs                        for
                 · Duran. He further stated that he. confronted Duran when they were incarcerated. because he was

                     angry that Duran was falsely accusing him of the murder. Finally, he stated that he had never

                     seen Mr. Herbert before Herbert testified.

                     DISCUSSION

                             In his 1925(b)" statement, defendant first asserts that the evidence was insufficient to

                     support the charges because the evidence of guilt came from 'only two. witnesses, whose

                  testimony, defendant contends, failed to prove each element of the crimes defendant was

                  .convicted of committing, 3 In essence, defendant is arguing·               that the testimony     presented by the

                  two witnesses      was not credible and thus, incapable of supporting            the verdict.

                            The Pennsylvania Supreme and Superior Courts have repeatedly held, sufficiency review

                  does not include an assessment of the credibility of witness testimony or other evidence.

                  Commonwealth v. Brown, 648 A.2d 1177, 1191 (Pa 1994); Commonwealth v. Wilson. 825

                 2
                     Herbert revealed what defendant told him during a proffer session with federal authorities. ·
                 3
                  Defendant indicates that defendant wasconvicted of robbery. Defendant is mistaken because thatcharge was
                 dismissed prior to the trial and was not one of'the charges upon which a verdict was rendered;
                                                                                                                                          ,-



                                                                             3
  A.2d 710, 713 (Pa. Super. 2003), and that testimonial conflicts will not render evidence

  insufficient. Commonwealth v. Hargrave, 745 A.2d 20, 22 (Pa. Super. 2000); Commonwealth v.

  Mechalski, 707 A.2d 528, 530 (Pa. Super. 1998). The courts have thus repeatedly rejected

  "sufficiency" arguments that are directed at the weight and credibility of the evidence. See    e.g.,

  Commonwealth v. Small, 741 A.2d' 666, 672 (Pa. 1999) (rejecting ·argument that evidence

 supporting. his murder conviction was insufficient due to inconsistencies           between various

 witnesses' testimony because "[although appellant phrases this as a sufficiency argument, the

 challenge   goes to the weight      of the evidence"),       cert. denied,   531 U.S. 829 (2000);

 Commonwealth v. Sullivan, 864 A.2d 1246, 1249-50 (Pa. Super. 2004) (finding credibility

 arguments inappropriate for sufficiency claim); Commonwealth v. Hodge, 658 A.2d 386, 389

 (Pa. Super. 1995) ("Unlike the challenge of legal sufficiency of the evidence, the complaint that

 the verdict was against the weight of the evidence requires an assessment of the credibility of the

· testimony offered by the Commonwealth.")             (internal   quotations and citation omitted).

 Appellant's credibility-based sufficiency arguments are therefore unavailing especially because

 the uncorroborated testimony of single witness may alone be sufficient to convict a defendant.

 Commonwealth v. Keaniey, 601 A.2d 346, 349 n.6 (Pa. Super. 1992).

        Accordingly, because this Court, sitting as fact-finder, found the testimony presented by

 the Commonwealth credible, it is suggested that     if this claim is deemed not to have been waived,

 the Honorable Court find that the evidence was sufficient to sustain the verclicts and grant no

relief with respect to this claim.

        The claim should also be deemed waived because defendant failed to articulate which

elements of the crimes he was convicted of committing the Commonwealth failed to establish.

"[WJhen challenging the sufficiency of the evidence on appeal, the [a]ppellant's         [Rule] 1925


                                                                                                          j:

                                                                                                          l
                                                                                                          I
                                                 4                                                        !
     ···--· =---~·-···-T-~·~.······    ·~·····,·.·.·,·········.···        ~.·.· .. · ·   .. · -,··,:·~.:: . .,·.~,..,u,~·····     ·~"~.· ·   · .. ····,   ·.···.'· .. · .. ··   ·.,\,;c,:·.:.······~----~·~   ..


I.                                                                                                .   . ---·--····· ·.   --   . . ·---·-··-·--·--···---

                                                                                                                          -.e
                     statement must 'specify the element or elements upon which the evidence was insufficient' in

                     order to preserve the issue for appeal_:' Commonwealth v. Gibbs. 981 A.2d 274, 281 (Pa. Super.

                    2009), appeal denied, 3 A.3d 670 (Pa. 2010) (quoting Commonwealth v. Williams, 959 A.2d

                     1252, 1257 (Pa. Super. 2008)). "Such specificity is of particular importance in ceses here ... the

                    [ajppellant was convicted of multiple crimes each of which contains numerous elements that the

                    Commonwealth must prove beyond .a reasonable doubt." Gibbs, supra (holding appellant waived

                    challenge to sufficiency of evidence where appellant failed to specify in Rule l 925(b) statement

                    which convictions, and. which elements of those crimes, he was challenging on appeal; fact that

                    trial court addressed appellant's sufficiency claim in its opinion was of no moment to waiver

                    analysis).

                            In any event, if it is determined that defendant preserved his sufficiency challenge, it is

                    suggested that no relief be accorded defendant because the evidence was sufficient to support the

                    charges.     A review of a sufficiency claim requires that the evidence presented by the

                    Commonwealth be assessed to ascertain if it establishes each material element of the crime

                   beyond a reasonable doubt. Commonwealth v. Pag~ 950 A.2d 270, 278 (Pa. 2008). The

                   evidence and all reasonable                       inferences are viewed in the light most favorable to the

                   Commonwealth as verdict winner. Commonwealth v. Watkins, 843 A.2d 1203, 1211 (Pa. 2003);

                   Commonwealth v. Collins, 703 A.2d 418, 420 (Pa. 1997).

                            The elements of first-degree murder are that; (1) a human being was unlawfully killed;

                   (2) the person accused is responsible for the murder; and (3) the accused acted maliciously and

                   with a specific intent to kill. 18 Pa.C.S. § 2502(a); ~ also Commonwealth v. Chimel, 889 A.2d

                   501, 517 (Pa. 2005). A "specific intent to kill" is "the state of mind ... which accompanies a killing

                   which was willful) deliberate and premeditated:'                          Commonwealth v. Ragan, 743 A.2d 390, 400




                                                                                         5
  • ...;.-:........;   •• .,:_~   ··-·   -· ·.:....:...~--   ··-·   • ,· •.• ·.;;.,.,:.,..i-   ••• '-·.   ·-   :.--       :,.,·   •.       -   -._.···....i.• .','   ··-./' .·   ~;...._, . ~- .;       ••• · · •.• ·--~ ..··...:.:....-.:.:.!. .• ·'   --~~~~   ',r-.,:.•••   _1.;.:._._: .;;.. . ,.. ~   ~.-.J.   , __ ::,. __.,._•.~.).J_..__....,__ .,;..,-..1...:~   •.   .:---l---~---·




 i·
                                              . (Pa..-1999); see also 18 Pa.C.S. § 2502(d). The requisite specific intent to kill may be established
 Ii .:                                             by evidence showing the knowing application of deadly force to the person 'of another,
l
                                                   Commonwealth v. Hall. 701 A.2~ 190,.196                                                                                                          (Pa. 1997),.and                                       may be inferred by the use of.a

                                                   weapon on a vital part of the victim's body. Commonwealth v. McCrae, 832 A.2d_i026,                                                                                                                                                                                 1030 ·.

                                                  (Pa. 2003).

                                                                             Here, the evidence, viewed in the light most favorable. to the Commonwealth,
                                                                                                                                       .                                                                                                                                                          .
                                                 overwhelmingly supports defendant's first-degree murder conviction. The evidence established

                                                 that defendant walked up behind the victim and shot him in thehead, a vital.part of the body, In

                                                 addition, defendant admitted having killed the victim. This evidence was mere than sufficient to

                                                support the conviction. It is well-settled that '.'[a] defendant can be convicted on the positive
                                                                                                                      .                                                          .
                                                identification of one witness." Conunonwealth v. Saldutte~7 A.2d·l21, 123 (Pa. Super. 1939).

                                                See also Commonwealth v. King, 959 A.2d 405, 411 (Pa. Super. 2008) (identification testimony

                                                of eyewitnesses sufficient, without physical evidence.jo support first-degree murder conviction}.

                                                                        The ·evidence was sufficient to support the other crimes as well.                                                                                                                              The crime                      of Possessing

                                               an instrument of crime is set forth in 18 Pa.C.S. § 907 as follows:

                                                                                                                              (a) Criminal instruments generally.v-A .person
                                                                                                                              commits a misdemeanor of the first degree. if he
                                                                                                                              possesses any instrument · of crime with intent to
                                                                                                                              employ it criminally.
                                              18 Pa.C.S. § 907.

                                                                      It is the Commonwealth's burden to prove that the defendant possessed an object-that is

                                              an instrument of crime with the intent to use the object for a criminal purpose. In the Interest of

                                             A.C., 763 A.2d-889, 890 (Pa.Super. 2000).

                                                                     A person.commits the crime of carrying a firearm without a license, 18. Pa. C.S. § 6106, if

                                          -he or she carries a concealed firearm without a license. A person violates 18. Pa.                                                                                                                                                                         c.s. § 6108,

                                                                                                                                                                                                    6
                                                                                    ,~~------   . ..:.:........: :;i.··~.:..··   ...   ·.··.   ..   .   .   -~2-·   ...•   :·   '•'"'·-·~·-··   •.   , ·· .•




which defines the crime of carrying a firearm without a license if he or she carries a "firearm,

rifle or shotgun at any time upon the public streets or upon any public property" in Philadelphia

unless licensed to do so or exempt from the license requirement. For purposes of these sections,

a "firearm" is "[a]ny pistol or revolver with a barrel length less than 15 inches, any shotgun with

a barrel length    less than 18 inches or any rifle with a barrel length less than 16 inches, or any

pistol, revolver, rifle or shotgun with an overall length of less than 26 inches." 18 Pa. C.S. §

6102.

         Instantly, the evidence established that defendant possessed a firearm with the intent to

employ it criminally. It also established that defendant carried a firearm on a public street in

Philadelphia. Finally, because defendant was under the age of twenty-one when the crimes

herein were committed he was incapable of obtaining a gun license. Therefore, the evidence was

sufficient to support these three charges and, therefore, it is suggested that defendant's claim

with respect to this issue be denied in the event that it is not deemed to have been waived.4

         In his second claim, Appellant argues that the verdict was against .the weight of the

evidence because he testified credibly. Said claim should be deemed waived because it was not

raised before this Court either orally or in a post-sentence motion. In order to preserve a weight

of the evidence claim for appellate review said claim must be presented to the trial court or else it

is waived.

                         Regarding Appellant's weight of the evidence claim we
                 note that Appellant did not make a motion raising a weight of the
                 evidence claim before the trial court as the Pennsylvania Rules of

4It appears that the Commorlwealth failed to present direct evidence of non-licensure. However, as noted, defendant
was under the age of twenty-one when he committed the crime and was ineligible to obtain a firearms license. In the
event the Honorable Court determines that the evidence was insufficient to support the charge of carrying a firearm
without a license a remand would be unnecessary because a verdict without further penalty was entered on that
charge.




                                                         7
                    Criminal Procedure require. See Pa.R.Crim.P. 607(A).22 The fact
                    that Appellant included an issue challenging the verdict on weight
                    of the evidence grounds in his 1925(b) statement and the trial court
                    addressed Appellant's weight claim in its Pa.R.A.P 1925(a) opinion
                    did not preserve his weight of the evidence claim for appellate
                    review in the absence of an earlier motion. Pa.R.Crim.P. 607(A);
                    Steiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1257 (2009)
                    (holding that inclusion of an issue in a 1925(b) statement that has
                    not been previously preserved does not entitle litigant to appellate
                    review of the unpreserved claim); Mack, 850 A.2d at 694 (holding
                    weight claim waived by noncompliance with Pa.R.Crim.P. 607,
                    even if the trial court addresses it on the merits); Commonwealth v.
                    Burkett, 830 A.2d 1034, 1037 (Pa.Super.2003) (same). See also
                    Commonwealth v. Little, 879 A.2d 293, 300-301 (Pa.Super.2005),
                    appeal denied, 586 Pa. 724, 890 A.2d 1057 (2005);
                    Commonwealth         v. Washington, 825 A.2d 1264, 1265
                    (Pa.Super.2003). Appellant's failure to challenge the weight of the
                    evidence before the trial court deprived that court of an opportunity
                    to exercise discretion on the question of whether to grant a new
                    trial. Because "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,"
. I                 Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 753
. I
. i
  I
                    (2000), this Court has nothing to review on appeal. We .thus hold
                    that Appellant waived his weight of the evidence claim because it
                    was not raised before the trial court as required by Pa.R.Crim.P.
                    607.



      Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).

             In accordance with the holding of Sherwood, it is respectfully suggested that defendant's

      weight claim be deemed waived.

             In the event that the claim is considered not to have been waived, it is suggested that it be

      denied. The standard in reviewing a weight of the evidence claim is well-settled:

                    Appellate review of a weight claim is a review of the exercise of
. !
                    discretioh, 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 grayest 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


                                                       8
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              .
                  .
                      '
                          '
                                                                                                                                                     ·.·e
                                           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. · ·
                          Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and citations omitted);~

                          also Commonwealth v. Sanchez, 36 .3d 24, 27 (Pa. 2011) (stating that "[rjelief on a weight of the

                          evidence claim is reserved for extraordinary circumstances, when the jury's verdict is so contrary

                          to the evidence as to shock one's sense of justice and the award of a new trial is imperative so

                          that right may be given another opportunity to prevail." (citation omittedj).

                                 The initial determination regarding the · weight of the evidence is for the fact-finder.

                          Commonwealth v. Jarowecld, 923 A.2d 425, 433 (Pa. Super. 2007). The trier of fact is free to

                          believe all, some or none of the evidence. Id. A reviewing court is not permitted to substitute its

                          judgment for that of the fact-finder. Commonwealth v. Small, 741. A.2d 666, 672 (Pa. 1999).

                          When the challenge ta the weight of the evidence is predicated on the credibility of trial

                          testimony, appellate review of a trial court's decision is extremely limited. Unless the evidence is

                          so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, weight

                          of evidence claims shall be rejected. Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa.

                          Super. 2004).

                                 Defendant asserts that this claim has merit based on alleged inconsistencies between

                          Duran's testimony at trial and that which he gave at appellant's preliminary hearing as well as

                          the fact that Duran observed the incident by watching it in the rear view mirror of his car.

                          Defendant also states that verdict was against the weight of the evidence because Frank Herbert

                          did not witness the incident and did not know defendant at the time the crime occurred.

                          Defendant claims that these factors render the testimony incredible.




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                                                                   Assessing the credibility of a witness and according that testimony appropriate weight is

                                                       within the province of the trier of fact, here the trial judge.                                                  523 A.2d 1140 (Pa. Super. 1987),

                                                       alloc. denied 5533 A.2d 712 (Pa. 1987). This Court found the testimony presented by the

                                                       witnesses credible and also that the verdict did not shock the conscience. While there were

                                                       inconsistencies in the testimony presented by J?uran and Herbert, this Court credited their

                                                   testimony and was convinced beyond. a reasonable doubt by it that defendant killed the victim

                                                   herein. Accordingly, it is suggested that if the instant claim is not deemed waived, defendant not

                                                   be granted relief thereon for the reasons stated.

                                                   CONCLUSION

                                                               For the foregoing reasons, the defendant's assertions of error should be dismissed for lack
                                                   of merit and the judgment                      of sentence entered in this matter should be affirmed.


                                                                                                                                                                 By the Court,




                                                   DATE:           d:I« { l6




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