J-S64006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MARVIN E. HILL                          :
                                         :
                   Appellant             :   No. 2579 EDA 2017

           Appeal from the Judgment of Sentence April 5, 2013
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0005356-2011

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 30, 2018

     Marvin E. Hill appeals nunc pro tunc from his aggregate judgment of

sentence of sixteen-and-one-half to forty-three years imprisonment following

his non-jury convictions for third-degree murder, firearms not to be carried

without a license, carrying firearms on public streets in Philadelphia, and

possession of an instrument of crime. We affirm.

           On January 7, 2010, . . . in response to a radio call, Officer
     James Bryan arrived at the 1300 block of Cumberland Street and
     found Stacey Linwood Sharpe, Jr., lying in the street shot. Officer
     Bryan transported Sharpe to Temple University Hospital, where at
     10:24 p.m., he died. Sharpe suffered two gunshot wounds, one
     to the back that hit his lung and exited through the chest, and the
     other to the back of the right thigh.

            On January 7, 2010, at about 6:30 p.m., Katerina Love was
     sitting at her window in her home on the 1200 block of West
     Cumberland Street when she heard gunshots. She looked out the
     window and saw [Appellant] shoot Sharpe about three or four
     times and then run southbound on 13th Street.          Ms. Love
     described the shooter as “dark skin, almost six feet, about 130
     pounds, clean shaven, maybe 20 or 21-years-old, black pants, a
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     black jacket with a red polo horse on it and a black hat with the
     red polo horse.” Ms. Love recognized [Appellant] as a man she
     had seen nearly every day outside of the store on 12th and
     Cumberland Street.

            On May 11, 2010, Ms. Love identified [Appellant] from a
     photo array. At trial, Ms. Love did not identify [Appellant],
     testifying that she did not remember the incident.

           From the 1200 block of Cumberland Street, officers
     recovered six, nine-millimeter fired cartridge cas[ings (“FCCs”)],
     one bullet specimen and two bullet jackets. According to Police
     Officer Edward Eric Nelson, the six recovered [FCCs] were fired
     from the same firearm and both bullet jackets were fired from the
     same firearm.

           On January 8, 2010, Detective Thorsten Lucke recovered
     surveillance video from a store located on the 2500 block of
     Sartain Street, a little over a block from the shooting. The video
     recorded the interior of the store, focusing at the door. The video
     showed [Appellant], who was wearing a knit hat with a Polo
     emblem, repeatedly entering and exiting the store for about an
     hour prior to the time of the murder. At 6:31 p.m., Tyree Alston,
     who was visible in the video standing outside of the store, pointed
     down the street and then walked out of view with a second
     unidentifiable person.

            On April 28, 2010, Detective Nordo of the Homicide Unit was
     directed by an assigned detective to locate [Appellant], Michael
     Hill, and Alston, who had been identified from a surveillance video
     as potential witnesses to the homicide. Detective Nordo located
     [Appellant] and his brother on the 2500 block of Sartain Street in
     Philadelphia. Detective Nordo transported [Appellant] to the
     Police Administration Building (“PAB”) in an unmarked minivan,
     while Michael Hill was transported in a separate vehicle.

            At approximately 5:30 p.m., they arrived at the PAB and,
     pursuant to the assigned detective’s instructions, entered the
     building through the rear entrance, the Police Detention Unit
     (PDU). [Appellant] was patted down and taken to the Homicide
     Unit. [Appellant] was seated on a bench in the Homicide Unit and
     told to wait.




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            At around 8:30 p.m., Detective Nordo interviewed Michael
     Hill. Michael Hill indicated that on January 7, 2010, at about 6:30
     p.m., he was at the store at the corner of Sartain and Cumberland
     Streets, when Sharpe walked by and Alston started following him.
     Michael Hill then saw Alston pull out a gun and shoot Sharpe.
     Subsequently, on May 28, 2010, Michael Hill gave a second
     statement in which he indicated that both [Appellant] and Alston
     followed Sharpe and then he heard gunshots. The next day,
     [Appellant] told Michael Hill that he and Alston had shot Sharpe.
     On April 28, 2010, upon conclusion of Michael Hill’s interview,
     which ended well past Detective Nordo’s shift, Detective Nordo left
     the PAB.

           On April 29, 2010, at 12:10 p.m., for reasons unknown to
     the court, [Appellant] was placed in a cell in the PDU. He
     remained in the cell for approximately fifteen minutes. At 12:25
     p.m., [Appellant] was checked out of the PDU cell and taken back
     to the homicide unit.

           Detective Nordo arrived back at the homicide unit in the
     early afternoon and found [Appellant] sitting at a desk. At 1:55
     p.m., Detective Nordo began taking [Appellant]’s statement.
     Because Detective Nordo believed that at all times [Appellant] was
     considered and being treated as a witness, he did not give
     [Appellant] Miranda warnings.

           Detective Nordo credibly testified that [Appellant] was never
     placed in handcuffs, neither when transported in the police vehicle
     nor while at the PAB. [Appellant] never asked to have an attorney
     present during the interview. [Appellant] at all times appeared
     cooperative and forthcoming with information during his
     interview. After [Appellant] gave his statement he was free to
     leave, and did so.

            [Appellant] testified during the motion hearing that in
     January of 2010 he had been brought into the PAB as a witness in
     the same homicide investigation and he stayed at the PAB for
     three days while he was interviewed before he was released. This
     court credited this testimony and [Appellant]’s testimony that on
     April 29, 2010, after he was informed of his brother’s statement,
     he decided to give a similar statement himself.

           On May 27, 2010, Tyree Alston gave a statement to police.
     Alston explained that on January 7, 2010, [Appellant], Michael

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      Hill, himself and others were hanging around the store on Sartain
      and Cumberland Streets. [Appellant] saw Sharpe and told Alston
      that Sharpe owed [Appellant] money. [Appellant] then ran after
      Sharpe and shot him. [Appellant] and Alston then went back to
      [Appellant’s] home, where [Appellant] explained that he shot
      Sharpe because, “[i]f [he] let him get away with keeping [his]
      package, then anyone else would do it.” On July 21, 2011, Alston
      sent [Appellant] a letter apologizing for giving the statement to
      police and indicated that his statement was a lie. At trial, Alston
      testified that it was two unidentified males who actually shot
      Sharpe, not [Appellant].

             On May 31, 2010, Detective Sean Mellon of the fugitive
      squad began attempting to locate [Appellant]. Over the next few
      months, the Detective made many attempts, at about nine
      different locations, to locate [Appellant]. On February 15, 2011,
      [Appellant] was arrested at his aunt’s house at 1913 East Orleans
      Street.

            At trial, Vincent Carter testified on behalf of [Appellant]. On
      January 7, 2010, at 6:30 p.m., Carter was driving on 13th Street
      and turned onto Cumberland Street. When Carter turned onto
      Cumberland, he saw one person shooting another person. Carter
      described the shooter as wearing a hoodie, skull cap, jeans and
      boots.

Trial Court Opinion, 7/15/13, at 2-6 (citations and unnecessary capitalization

omitted).

      Following the non-jury verdict, Appellant was sentenced as indicated

above on April 5, 2013.     Appellant filed the instant nunc pro tunc appeal

following the restoration of his post-sentence and direct appeal rights.

      Appellant presents the following questions to this Court, which we have

reordered for ease of review.

      I.    Was the evidence insufficient to establish that [A]ppellant
            violated the [U]niform [F]irearm [A]ct because there was
            insufficient evidence to establish that [A]ppellant carried the
            firearm in a vehicle or concealed on or about his person?

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      II.    Did the trial court abuse its discretion in not ordering a new
             trial when the verdicts of guilt were against the weight of
             the evidence when the evidence of identification of
             [A]ppellant as the perpetrator of the crimes was vague,
             conflicting, contradictory and impeached?

      III.   Did the trial court err in admitting the prior inconsistent
             statement of the Commonwealth witness, Katerina Love, as
             substantive evidence when this prior inconsistent statement
             was not adopted by the witness?

Appellant’s brief at 2.

      We begin with the standard of review applicable to Appellant’s claim that

the evidence was insufficient to support his firearms conviction.

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).

      The statute under which Appellant was convicted provides as follows in

relevant part: “any person who carries a firearm in any vehicle or any person

who carries a firearm concealed on or about his person, except in his place of


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abode or fixed place of business, without a valid and lawfully issued license

under this chapter commits a felony of the third degree.”         18 Pa.C.S.

§ 6106(a)(1). Hence, “[i]n order to convict a defendant for carrying a firearm

without a license, the Commonwealth must prove: (a) that the weapon was a

firearm, (b) that the firearm was unlicensed, and (c) that where the firearm

was concealed on or about the person, it was outside his home or place of

business.” Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004)

(internal quotation marks and citation omitted).

      Appellant does not dispute that he lacked a license, or that the weapon

at issue was a firearm; rather, he contends that “The Commonwealth in this

case did not prove that the defendant was carrying the gun in a vehicle or

concealed on his person.”    Appellant’s brief at 11. Appellant argues that,

looking at the evidence in the light most favorable to the Commonwealth, all

that was proven is that “the perpetrator came down the street with the firearm

in his hands.” Id. He contends that there was “insufficient evidence [to] for

the fact finder to make a determination that the perpetrator had the weapon

in a vehicle or concealed on his person outside of conjecture and surmise.”

Id. We disagree.

      At trial, the Commonwealth questioned Ms. Love regarding statements

she had given to police. In the first, given on January 7, 2010, Ms. Love

indicated that the shooter “pulled out a gun” and fired multiple shots at the

victim. N.T. Trial, 1/22/13, at 150. In another interview the following day,


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Ms. Love indicated that she did not see the shooter draw the weapon, but only

looked up after the first shot when the gun was already out. Id. at 167. In

a later interview given on May 11, 2010, Ms. Love identified Appellant as the

shooter. Id. at 174-75.

      “[T]he 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.”         Commonwealth v. Watley, 81 A.3d 108, 113

(Pa.Super. 2013) (en banc). Here the trial court, sitting as fact finder, credited

the evidence that Appellant “pulled out a gun” from concealment. See Trial

Court Opinion, 10/10/17, at 9.       As such, the evidence was sufficient to

establish the concealment element of the crime. See, e.g., Commonwealth

v. Montgomery, 192 A.3d 1198, 1201 (Pa.Super. 2018) (holding evidence

that the defendant’s firearm was tucked into the waistband of his pants with

the handle visible was sufficient to show concealment). Appellant’s first claim

of error merits no relief.

      Appellant next contends that the verdict is against the weight of the

evidence. The following principles apply to our review of that challenge.

      Appellate review of a weight claim is a review of the [trial court’s]
      exercise of discretion, 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 gravest 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 evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction


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      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, 1054–55 (Pa. 2013). This standard

applies even when the trial judge rendered the verdict at issue as the finder

of fact.   See, e.g., Commonwealth v. Konias, 136 A.3d 1014, 1023

(Pa.Super. 2016) (applying the above standard to a weight challenge following

a bench trial).

      Appellant contends that all of his convictions were contrary to the weight

of the evidence “because the identification of [Appellant] as the perpetrator

of the crimes was vague, conflicting, contradictory and impeached.”

Appellant’s brief at 7. Further, Appellant argues that there was no physical

evidence to connect Appellant to the crime, and surveillance video showed

Appellant at the scene prior to the shooting, but at a different location at the

time of the incident. Id.

      The trial court offered the following explanation for its determination

that the verdict was not against the weight of the evidence.

      The Commonwealth presented a considerable amount of
      eyewitness testimony and physical evidence that [Appellant]
      fatally shot Stacey Linwood Sharpe, Jr. In their initial statements
      to the police, Katerina Love and Tyree Alston identified [Appellant]
      as the shooter.      [Appellant’s] brother, Michael Hill, gave a
      statement saying that he saw [Appellant] and Alston chase Sharpe
      and that [Appellant] had confessed that he ([Appellant]) and
      Alston had shot Sharpe. Despite any recantation at trial, these
      witness statements were admissible for their truth. Moreover,
      surveillance video showed [Appellant] at the scene of the murder
      for about an hour leading up to the murder wearing clothing that
      matched the descriptions given by Katerina Love and Vincent
      Carter.

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Trial Court Opinion, 10/10/17, at 7-8 (citations omitted). Based upon this

evidence, the trial court concluded that the verdicts “did not shock one’s sense

of justice.” Id. at 7.

      We find no abuse of discretion in the trial court’s determination. The

court observed the witnesses, considered all of the evidence, and acted within

its discretion in choosing “to credit the witnesses’ prior inconsistent

statements over their recantations.” Commonwealth v. Brown, 134 A.3d

1097, 1104 (Pa.Super. 2016).        Further, the video evidence described by

Appellant does not contradict the identification of the witnesses by

establishing that Appellant was somewhere else at the time of the shooting;

rather, it shows Appellant at a different, nearby location shortly after the

shooting. Appellant’s brief at 8 (citing N.T. Trial, 1/28/13, at 228-29). In

making his argument, Appellant essentially asks this Court to make different

credibility determinations and weigh the evidence in his favor; however, this

Court may not substitute its judgment for that of the fact-finder as to

credibility issues or the weight to be given to evidence. Commonwealth v.

Furness, 153 A.3d 397, 404 (Pa.Super. 2016).          Appellant’s weight claim

entitles him to no relief from this Court.

      Finally, Appellant contends that Ms. Love’s out-of-court statement to

police was improperly admitted at trial because “it was not adopted by the

witness and therefore could not be used as substantive evidence by the fact

finder.” Appellant’s brief at 12.

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     We consider Appellant’s argument mindful of the following.

     The admissibility of evidence is a matter addressed solely to the
     discretion of the trial court, and may be reversed only upon a
     showing that the court abused its discretion. For there to be abuse
     of discretion, the sentencing court must have ignored or
     misapplied the law, exercised its judgment for reasons of
     partiality, prejudice, bias or ill will, or arrived at a manifestly
     unreasonable decision.

Commonwealth v. Johnson, 179 A.3d 1105, 1119-20 (Pa.Super. 2018)

(internal citations and quotation marks omitted).

     The general rule is that hearsay, out-of-court statements offered for the

truth of the matter asserted, is not admissible. Pa.R.E. 802. However, under

Pa.R.E. 803.1, a prior inconsistent statement of a declarant-witness, in the

form of a writing signed and adopted by the declarant, is not excluded by the

rule against hearsay if the declarant testifies and is subject to cross-

examination about the prior statement. Pa.R.E. 803.1(1)(B).

     Our review of the record reveals that the last page of Ms. Love’s January

7, 2010 statement states: “You have read your statement, and by signing,

you affirm as to its truthfulness and accept it as your spoken word.”

Commonwealth’s Exhibit C-33 at 3. There are two signature lines following

that affirmation/adoption sentence, one immediately below it and another at

the very bottom of the page. Ms. Love’s signature appears on the latter. Id.

Further, at trial, Ms. Love identified the signature as her own and indicated

that she recalled signing the statement, and was subject to cross-examination

about the statement. N.T. Trial, 1/22/13, at 148, 156. Accordingly, the trial


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court did not abuse its discretion in admitting Ms. Love’s prior statement as

substantive evidence. See, e.g., Commonwealth v. Stays, 70 A.3d 1256,

1262 (Pa.Super. 2013) (holding prior out-of-court identification of defendant,

signed by the witness, was admissible as substantive evidence where witness

subsequently declined to identify the defendant and disavowed the prior

statement but was subject to cross-examination about it).

      Having concluded that none of Appellant’s issues is meritorious, we

affirm his judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/18




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