J-S65008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

WILLIAM FERGUSON,

                            Appellant               No. 2061 EDA 2014


           Appeal from the Judgment of Sentence October 21, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003810-2012


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED DECEMBER 01, 2015

       William Ferguson appeals from the judgment of sentence of life

imprisonment without the possibility of parole, imposed October 21, 2013,

following a jury trial resulting in his conviction for first-degree murder,

robbery and related offenses.1 We affirm.

       We adopt the following statement of facts, derived from the trial

court’s opinion, which in turn is supported by the trial record.    See Trial

Court Opinion, 12/04/2014, at 2-10.
____________________________________________


1
   Appellant was charged with murder, robbery, possession of firearm
prohibited, theft by unlawful taking, receiving stolen property, firearms not
to be carried without a license, carrying firearms in Philadelphia, possessing
an instrument of crime, and unauthorized use of motor vehicle. See 18
Pa.C.S. §§ 2502, 3701(a)(1)(i), 6105(a)(1), 3921(a), 3925(a), 6106(a)(1),
6108, 907(a), and 3928(a), respectively. An initial conspiracy charge, see
18 Pa.C.S. § 903(c), was dismissed for lack of evidence.
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      On December 7, 2011, Sylvain Middleton and Appellant were drinking

beer and smoking marijuana. They decided to purchase cocaine, and so Mr.

Middleton called Keith Allen, a friend from whom Mr. Middleton had

purchased cocaine previously. Mr. Middleton and Mr. Allen arranged to meet

in the area of Rugby and Upsal Streets in Philadelphia.

      Mr. Middleton and Appellant drove to the area together in Mr.

Middleton’s car. However, Appellant exited the vehicle to meet an unknown

person, and Mr. Middleton proceeded to meet with Mr. Allen separately.

      Mr. Middleton entered the front passenger seat of Mr. Allen’s SUV to

complete the drug transaction, whereupon Appellant entered the rear

passenger seat, pointed a gun at Mr. Allen, demanded his money and drugs,

and ordered Mr. Middleton out of the SUV.        Mr. Allen placed drugs and

money on the front seat.      As Mr. Middleton exited the SUV, he heard

multiple gunshots. He immediately left the area, driving away in his car.

      Contemporaneously, Vanderick Desper was driving on Upsal Street

when he passed Mr. Allen’s SUV on the wrong side of the street up against a

pole. Believing an accident had occurred, Mr. Desper backed his car up to

get a closer look and observed the driver of the SUV being assaulted by

someone in the back seat.     Mr. Desper parked nearby and called 911 to

report the assault. Following his initial 911 call, Mr. Desper observed a flash

of light coming from inside of the SUV, so he called 911 a second time.




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       Officers Jonathan Berryman and Daniel McMonagle received a radio

call for an assault in progress at Upsal and Rugby Streets.      Upon their

arrival, they observed Appellant seated in the driver’s seat of Mr. Allen’s

SUV.     Appellant stated he was trying to get Mr. Allen to a hospital.   The

officers found Mr. Allen outside the vehicle, unresponsive, with multiple

gunshot wounds. Mr. Allen was pronounced dead at the scene.

       Officer Berryman observed a firearm inside the vehicle.        Officer

McMonagle frisked Appellant and recovered U.S. currency and what

appeared to be cocaine. Subsequently, police recovered a nine-millimeter,

semi-automatic firearm, as well as multiple fired cartridge cases, from the

SUV. Forensic evidence introduced at Appellant’s trial established that the

firearm recovered from the SUV was the murder weapon. On the night of

the murder, Appellant tested positive for gunpowder residue on both of his

hands.

       Tasheima King was the registered owner of the murder weapon. Ms.

King testified at Appellant’s trial that she had purchased the firearm for

another individual, but it went missing around the time Appellant visited her

home in Columbia, Pennsylvania.

       DNA samples were taken from the murder weapon, a fired cartridge

case, and the sweatband of a Philadelphia Eagles hat found in the SUV. For

comparison purposes, DNA samples were also taken from both Appellant and

Mr. Middleton.     The victim’s DNA was not tested.      Mr. Middleton was


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excluded as a contributor to any of the DNA evidence collected from the

murder scene. Appellant’s DNA was found on the slide area of the firearm;

results were inconclusive on the trigger, but included DNA from an unknown

male; and Appellant’s DNA was not present on the grip of the firearm. The

sweatband contained DNA from the same unknown male.2             No discernible

DNA was recovered from the fired cartridge case.

       Appellant testified on his own behalf. According to Appellant, he often

engaged in drug transactions with the victim. On the night of the murder,

Appellant and the victim drove together to complete a transaction.        Upon

their arrival at the predetermined location, Mr. Middleton entered the SUV

with another person unknown to Appellant.         According to Appellant, this

unknown person assaulted and shot the victim but fled prior to the arrival of

the police. Appellant’s father and cousin also testified on his behalf.

       Following his trial in October 2013, a jury convicted Appellant of

murder of the first degree, robbery, and several weapons-related offenses.

The court imposed an aggregate sentence of life imprisonment without

parole.3 Appellant filed a post-sentence motion that was denied without a

hearing.

____________________________________________


2
  Notably, Tammy Allen, the victim’s wife, testified that the Eagles hat
belonged to her husband.
3
  The court also imposed concurrent sentences of 5-10 years’ imprisonment
for robbery; 3½-7 years’ imprisonment for carrying firearms in Philadelphia;
(Footnote Continued Next Page)


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      In April 2014, Appellant filed a petition seeking leave to appeal nunc

pro tunc.      The trial court granted his petition.   In July 2014, Appellant

appealed and thereafter filed a court-ordered Pa.R.A.P. 1925(b) statement.

In December 2014, the trial court issued a responsive opinion.

      Appellant failed to submit an appellate brief.         The matter was

remanded to ascertain whether appointed counsel abandoned Appellant.

Following a hearing, the trial court determined that counsel’s failure to

submit a brief was due to circumstances beyond counsel’s control.

Accordingly, a new briefing schedule was set. The matter is now ready for

disposition.

      Appellant raises the following issues on appeal, reversed for ease of

analysis:

      1. Whether the verdict is against the sufficiency of the evidence,
      based on the results of DNA analysis in this case; and

      2. Whether the verdict is against the weight of the evidence,
      based on the results of the DNA analysis in this case.

See Appellant’s Brief, at 4.

      Appellant purports to challenge the sufficiency of the evidence

presented at trial.

      In order to preserve a challenge to the sufficiency of the
      evidence on appeal, an appellant's Rule 1925(b) statement must
                       _______________________
(Footnote Continued)

2½-5 years’ imprisonment for carrying a firearm without a license; and 2½-
5 years’ imprisonment for possessing an instrument of crime. The remaining
charges were nolle prossed.



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     state with specificity the element or elements upon which the
     appellant alleges that the evidence was insufficient.      Such
     specificity is of particular importance in cases where, as here,
     the appellant was convicted of multiple crimes each of which
     contains numerous elements that the Commonwealth must
     prove beyond a reasonable doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

citations and quotation marks omitted); see also Commonwealth v.

Gibbs, 981 A.2d 274 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa.

2010).

     Here, Appellant offers no analysis of any particular elements that

comprise the charges against him. For example, to prove murder of the first

degree, the Commonwealth must establish: (1) that a human being has

been unlawfully killed; (2) that the person accused did the killing; and (3)

that the killing was done with malice aforethought, as well as with

premeditation and deliberation.   See Commonwealth v. Fox, 619 A.2d

327, 335 (Pa. Super. 1993); 18 Pa.C.S. § 2502(a).       However, Appellant

neither identifies these elements nor argues how the evidence presented by

the Commonwealth fails to establish them.        See Appellant’s Pa.R.A.P.

1925(b) Statement; see also Appellant’s Brief at 13-14.     Accordingly, we

deem Appellant’s claim waived. See Garland, supra.

     Absent waiver, we note that Appellant’s claim is devoid of merit. We

review a challenge to the sufficiency of the evidence in the following

manner:




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     In determining whether there was sufficient evidentiary support
     for a jury's finding [], the reviewing court inquires whether the
     proofs, considered in the light most favorable to the
     Commonwealth as verdict winner, are sufficient to enable a
     reasonable jury to find every element of the crime beyond a
     reasonable doubt.        The court bears in mind that: the
     Commonwealth may sustain its burden by means of wholly
     circumstantial evidence; the entire trial record should be
     evaluated and all evidence received considered, whether or not
     the trial court's rulings thereon were correct; and the trier of
     fact, while passing upon the credibility of witnesses and the
     weight of the evidence, is free to believe all, part, or none of the
     evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted).

     Here, Appellant suggests that the DNA evidence recovered from the

murder weapon was insufficient to establish that he was the shooter. See

Appellant’s Brief at 14. Even accepting Appellant’s premise, he nonetheless

fails to account for the additional, overwhelming evidence presented by the

Commonwealth, including for example, (1) eyewitness testimony that

Appellant murdered the victim, (2) physical evidence of gunpowder residue

found on Appellant’s hands, and (3) circumstantial evidence that Appellant

took the murder weapon from an acquaintance’s home. Viewed in the light

most favorable to the Commonwealth, as verdict winner, the evidence was

sufficient to enable a reasonable jury to convict Appellant of the crimes

charged.

     Appellant also asserts that the verdict was against the weight of the

evidence.     Specifically, though Appellant concedes that his DNA was


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recovered from the slide area of the murder weapon, he argues that if he

had been the shooter, “his DNA would have been all over the pistol grip and

trigger [of the murder weapon].” Appellant’s Brief at 12.

       A motion for a new trial based on the weight of the evidence concedes

that     there   is   sufficient   evidence    to   sustain     the   verdict.   See

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).                            It is

“addressed to the discretion of the trial court.”         Id.    “The trial court will

award a new trial only when the jury's verdict is so contrary to the evidence

as to shock one's sense of justice.” Commonwealth v. Cousar, 928 A.2d

1025, 1036 (Pa. 2007). We will grant appellate relief only “where the facts

and inferences of record disclose a palpable abuse of discretion.” Id. A trial

court’s decision to deny a motion for a new trial is the “least assailable” of its

rulings. Id.

       Appellant’s suggestion that the DNA evidence against him was

inadequate merely raises a question of fact to be resolved by the jury. The

evidence of Appellant’s guilt was overwhelming, and the jury’s verdict was in

accordance with that evidence.           Accordingly, we discern no abuse of

discretion in the trial court’s denial of Appellant’s weight of the evidence

claim.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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