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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
ALFRED WHITEFIELD,                          :          No. 2103 EDA 2016
                                            :
                          Appellant         :


           Appeal from the Judgment of Sentence, January 26, 2016,
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos. CP-51-CR-0014999-2013,
                           CP-51-CR-0015000-2013


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED JULY 31, 2017

        Alfred Whitefield appeals from the January 26, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following his conviction in a waiver trial of two counts of first-degree murder

and one count each of carrying firearms on public streets or public property

in Philadelphia, possessing instruments of crime, and recklessly endangering

another person.1 The trial court imposed consecutive life sentences without

the possibility of parole on the first-degree murder convictions and

concurrent terms of incarceration on the remaining convictions. We affirm.

        The trial court set forth the following factual history:

                   In the early evening hours of April 23, 2013,
              Carmen Medina was on her way to be admitted to an

1
    18 Pa.C.S.A. §§ 2502(a), 6108, 907(a), and 2705, respectively.
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            inpatient clinic at Gaudenzia House, accompanied by
            her ten year old son, Joseph Hernandez,
            Thomas Gorman and Yvette Davila.           Ms. Medina
            stopped at the intersection of Gurney and Swanson
            Streets, a drug corner that her family claimed to own
            and rented for the sale of drugs for five hundred
            dollars a week. Ms. Davila testified that when they
            arrived at the corner, Ms. Medina exited the car and
            conferred with [appellant], then returned to the car
            with [appellant], opened the rear door and instructed
            Ms. Davila to look at [appellant] so Ms. Davila would
            be able to recognize him later. Ms. Medina told
            [appellant] that if she could not pick up the rent,
            that Davila would pick up the money for her.
            Carmen Medina closed the door and started walking
            around the back of the vehicle towards the driver’s
            side of the SUV. [Appellant] had started to walk
            away before turning back and firing shots at Medina
            and the front passenger, Thomas Gorman.
            Yvette Davila grabbed the young boy and ducked
            down in the back seat of the vehicle until the shots
            stopped.

                   In addition to Ms. Davila’s eyewitness
            testimony, the prosecution presented the testimony
            of Angel Torres, a fellow inmate incarcerated with
            [appellant], who testified that [appellant] confessed
            to him that Medina was demanding $500 in rent for
            the corner on which he sold heroin, that he no longer
            wanted to pay her, and that when they walked back
            to the car[,] he shot and killed Medina and Gorman.
            Additionally, Patricia Brown testified that she was
            [appellant’s] girlfriend in 2013 and she was told by
            [appellant] to cut off service to his phone as he was
            afraid the police would be able to trace the phone.
            [Appellant] was correct, as Detective James Dunlap
            was able, through triangulation, to pinpoint the
            location of [appellant’s] phone at the time of the
            murder to the scene of the double homicide.

Trial court opinion, 10/14/16 (citations to notes of testimony omitted).




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      The record reflects that appellant filed a timely post-sentence motion,

which was denied on June 6, 2016, by operation of law pursuant to

Pa.R.Crim.P. 720(B)(3)(a).    Appellant then filed a timely notice of appeal.

Following a grant of extension of time, appellant timely filed his statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         The trial

court then filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            [1.]   Whether the verdict was against the sufficiency
                   of the evidence[?]

            [2.]   Whether the verdict was against the weight of
                   the evidence[?]

Appellant’s brief at 4.

      Appellant first complains that the evidence was insufficient to sustain

the verdict.    Preliminarily, we note that it is well settled that when

challenging the sufficiency of the evidence on appeal, that in order to

preserve that issue for appeal, an appellant’s Rule 1925(b) statement must

specify the element or elements upon which the evidence was insufficient.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010) (citation and internal quotation marks

omitted).

      Here, in his Rule 1925(b) statement, appellant fails to identify which

element or elements of any of the crimes of which he was convicted were

insufficient. Rather, appellant meagerly frames his sufficiency challenge, as



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follows: “The verdict was against the sufficiency of the evidence.” (“Concise

statement     of   matters   complained     of   on   appeal    pursuant     to

Pa.R.A.P. 1925(b),” 8/9/16 at 1 ¶ 2.) Appellant then raises a weight claim,

followed by a statement that “[a]lthough the standards are different for the

[sufficiency and weight issues], I will place them into one fact pattern.”

(Id.)   Appellant then sets forth four pages of argument attacking witness

credibility in violation of Pa.R.A.P. 1925(b)(4), which requires, among other

things, that the Rule 1925(b) statement concisely identify each challenged

ruling or error and that the statement should not provide lengthy

explanations of errors. See Pa.R.A.P.(b)(4)(ii) and (iv).

        Therefore, based on the certified record before us, as well as

appellant’s brief, appellant’s sole challenge is to the weight of the evidence,

not its sufficiency.    See Commonwealth v. Wilson, 825 A.2d 710,

713-714 (Pa.Super. 2003) (a review of the sufficiency of the evidence does

not include a credibility assessment; such a claim goes to the weight of the

evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997) (the fact-finder makes credibility determinations and challenges to

those determinations go to the weight of the evidence, not the sufficiency of

the evidence).

             The essence of appellate review for a weight claim
             appears to lie in ensuring that the trial court’s
             decision has record support.         Where the record
             adequately supports the trial court, the trial court
             has acted within the limits of its discretion.



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           ....

           A motion for a new trial based on a claim that the
           verdict is against the weight of the evidence is
           addressed to the discretion of the trial court. A new
           trial should not be granted because of a mere conflict
           in the testimony or because the judge on the same
           facts would have arrived at a different conclusion.
           Rather, the role of the trial judge is to determine
           that notwithstanding all the facts, certain facts are so
           clearly of greater weight that to ignore them or to
           give them equal weight with all the facts is to deny
           justice.

           ....

           An appellate court’s standard of review when
           presented with a weight of the evidence claim is
           distinct from the standard of review applied by the
           trial court. 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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations

and quotation marks omitted).     “In order for a defendant to prevail on a

challenge to the weight of the evidence, ‘the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).

     In his brief, appellant invites us to assess witness credibility and

reweigh the evidence.     We decline the invitation.      The trial court, as

fact-finder, had the duty to determine the credibility of the testimony and

evidence presented at trial.     See Talbert, 129 A.3d at 546 (citation




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omitted). Appellate courts cannot and do not substitute their judgment for

that of the fact-finder. See id.

      Our review of the record supports our conclusion that the trial court

properly exercised its discretion in denying appellant’s weight of the

evidence claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2017




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