J-A10037-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD THOMAS                              :
                                               :
                       Appellant               :   No. 2898 EDA 2018

      Appeal from the Judgment of Sentence Entered September 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013001-2010


BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             FILED JUNE 03, 2020

        Ronald Thomas (Thomas) appeals from the judgment of sentence

imposed in the Court of Common Pleas of Philadelphia County (trial court) for

his jury conviction of first-degree murder, possession of an instrument of

crime, carrying a firearm without a license, and carrying a firearm on a public

street in Philadelphia1 after his second trial in this matter.2 After our thorough


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(a), 907, 6106(a) and 6108, respectively.

2 Thomas’s first trial occurred in 2013. (See Commonwealth v. Thomas,
2015 WL 6457805 (Pa. Super. filed Oct. 2, 2015) (unreported memorandum).
The Commonwealth proceeded under the theory that Thomas murdered
Anwar Ashmore over drugs. On direct appeal, a panel of this Court found that
the trial court (1) had improperly admitted a hearsay statement made by
Ashmore to his brother about stealing drugs from Thomas, and (2) Thomas’s
J-A10037-20


review, we affirm on all issues raised before the trial court and remand for a

hearing on his after-discovered evidence and Brady claims.

        On appeal, Thomas challenges the sufficiency and weight of the

evidence to support his conviction “where the evidence was unreliable.”

(Thomas’s Brief, at 3).        He and the Commonwealth also request that we

remand this matter for an evidentiary hearing on the after-discovered

evidence of improper investigative techniques used by two of the detectives

who took statements that the witnesses later recanted at trial. (See id. at 3,

23-46, 49-54); (Commonwealth’s Brief, at 17-22). He also alleges that the

Commonwealth committed a Brady3 violation for failing to disclose the

information sooner.4 (Thomas’s Brief, at 46-49).



____________________________________________


rap lyrics about a drug theft and retaliatory murder. This was the only
evidence connecting Thomas to the sale of illegal drugs and providing him
with a motive to kill Ashmore. (See id. at *7). We concluded that the only
other evidence provided by the Commonwealth, the testimony of witnesses
who recanted or changed their testimony, did not provide such overwhelming
evidence of Thomas’s guilt “that the erroneously admitted evidence could not
have contributed to the verdict.” (Id.). On this basis, we vacated and
remanded for a new trial.

3   Brady v. Maryland, 373 U.S. 83 (1963).

4Thomas also argues that prior appellate counsel failed to raise certain claims
and evidentiary issues in his Rule 1925(b) statement, thus waiving them and
depriving Thomas appellate review. (See Thomas’s Brief, at 3, 23, 25-26).
However, any claims of ineffective assistance of counsel cannot be raised in a
direct appeal but must await collateral review. See Commonwealth v.
Crosby, 844 A.2d 1271, 1271-72 (Pa. Super. 2004).

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                                               I.

        We take the following background from our independent review of the

certified record.     The charges against Thomas relate to his shooting and

murder of Anwar Ashmore (Ashmore).

        Ashmore was fatally shot in the chest at the corner of North Stanley and

West Huntindon Streets in Philadelphia at approximately 9:00 P.M. on the

evening of April 22, 2010. He suffered injuries to his sternum, heart, ribs,

lungs and left arm.       When Philadelphia Police Officers William Forbes and

Anthony Ricci arrived on the scene moments later, a group of people was

standing around him as he gasped for air. Ashmore was unable to answer the

officers’ questions and the bystanders denied having heard anything. (See

id. at 105-08). Ashmore was pronounced dead at Temple University Hospital

moments after arriving. The cause of death was two gunshot wounds to the

chest, later determined to be from a .45 caliber handgun.

        Approximately one hour after the shooting, Detectives Philip Nordo,

Tracy Byard, Thorsten Lucke and Billy Golphin5 arrived at the scene.        The

police did not locate any eyewitnesses to the murder that night. However,

one month later, on May 22, 2010, they arrested Raphael Spearman three

blocks from the murder scene after a police chase. He was in possession of a



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5   Detective Golphin was an officer at the time.

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.45 caliber handgun that was later determined to be the gun that fired the

bullets that killed Ashmore. (See N.T. Trial, 9/17/18, at 54, 221; N.T. Trial,

9/18/18, at 76, 143). Over the ensuing days and months, Troy Devlin, Jeffrey

Jones, Raphael Spearman and Kaheem Brown identified Thomas as Ashmore’s

killer. Detective Nordo took the statements of Devlin, Jones and Spearman.

Detective Williams took Brown’s statement.

                                     II.

                                     A.

      Trial commenced on September 11, 2018.             The Commonwealth

proceeded under the theory that Thomas murdered Ashmore in retaliation for

the shooting of his associate, Kaheem “Bay” Brown, approximately five

months earlier.    At trial, the Commonwealth presented Devlin, Jones,

Spearman and Brown, each of whom identified Thomas as the shooter in their

police statements, but then recanted at trial.     Specifically, the following

occurred.

                                 1. Troy Devlin

      At trial, Devlin was a reluctant witness who stated that he did not want

to be there, could not remember anything about the murder or the argument

preceding it, or even the day of the murder. When confronted about his prior

statement to Detectives Nordo and Byard, he identified the signatures on the

statement and photos of Thomas and others as his, but maintained that he

could not remember giving the statement and that he could only remember
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back to 2017 because of a seizure disorder he had been diagnosed with in

2002. When questioned about Detective Nordo, Devlin claimed he did not

know him and had not been contacted by him since he gave his statement.

(See N.T. Trial, 9/13/18, at 40, 53-54, 57-60, 63-86, 92, 94-95).

     Detective Byard read the transcript of Devlin’s police statement, which

he had provided to Detectives Nordo and Byard on April 24, 2010, into

evidence. Devlin had stated that on the night of the murder, he was standing

on the corner with Thomas, Anwar Ashmore, Dennis Williams, Raphael

Spearman, Kaheem Brown, Jeffrey Jones, Rodney Smith and Darren

Hainesworth.   He said that the men argued about whether they should

retaliate against another neighborhood group for shooting Brown several

months earlier. Thomas wanted to retaliate, but Ashmore and Jones did not,

and Ashmore explained that he had approached the group responsible for

Brown’s shooting and handled the issue. Thomas accused Ashmore of not

wanting to be in their group anymore. According to Devlin’s police statement,

when Ashmore walked away to sell drugs to someone, everyone started

walking away from Thomas and he shot Ashmore two times. (See N.T. Trial,

9/14/18, at 19-26).

     Detective Byard testified that Devlin provided each answer and signed

the statement without coercion. He maintained that no one told Devlin to

identify Thomas as Ashmore’s killer and that no promises were made in

exchange for his statement. (See id. at 28-29, 33).
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                                 2. Jeffrey Jones

      At trial, Jones denied being present at Ashmore’s murder and claimed

that he heard about Ashmore’s death the following day. When confronted

with his prior statement to the police, Jones maintained that he did not

“personally give the statement,” but that the “statement was presented to

[him] by the homicide detectives.” (N.T. Trial, 9/13/18, at 132). He testified

that the detectives knew he had fled from probation and told him that if he

signed the statement, they would give him money to help him and his family

move and not report him to his probation officer. (See id. at 132, 138). Jones

said that at the time he gave the statement, he was coming off a PCP high

and was only thinking of himself, doing what they asked him to do so that he

could leave. He denied providing any of the statement’s answers. (See id.

at 132-35, 137, 147-65).

      Detective Byard read Jones’s statement to the detectives into evidence.

(See N.T. Trial, 9/14/18, at 39-44). Jones was taken into police custody on

August 23, 2010, and the detectives waited to interview him until the next

day because Jones was high on PCP at the time. (See id. at 35). Jones’s

statement mirrored Devlin’s in all pertinent respects, including the identity of

the individuals present before the murder, the argument preceding it, and the

number of shots Thomas fired at Ashmore. (See N.T. Trial, 9/13/18, at 137;

N.T. Trial, 9/14/18, at 35-44, 52-53).



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      According to his testimony, Detective Byard was present for the entire

time that Jones was giving his statement and he did not appear to be under

the influence of drugs or alcohol.   (See N.T. Trial, 9/14/18, at 35).     The

detective stated that he did not tell Jones anything Devlin had told him during

his statement or share any other evidence with him. (See id.). He maintained

that the detectives neither suggested any of the answers to the interview

questions nor made any promises in exchange for him providing them. (See

id. at 37). Finally, Detective Byard testified that he observed Jones review

and sign the statement. (See id. at 44).

                             3. Raphael Spearman

      When called to testify, Spearman refused to leave his cell, walk to the

witness stand or acknowledge his name on the record.          (See N.T. Trial,

9/14/18, at 80-81). He refused to respond to the trial court’s questions and

was found in contempt four times, resulting in an aggregate sentence of not

less than one nor more than two years’ imprisonment. (See id. at 81-89,

91). Eventually, the trial court found him unavailable and that his testimony

from Thomas’s 2013 trial and his police statement could be read into the

record. (See N.T. Trial, 9/17/18, at 21-23).

      The 2013 testimony described a different version of events than that

provided by any other witness or in either of Spearman’s police statement or

in his testimony at Thomas’s preliminary hearing. In 2013, Spearman testified

that he was standing on the corner opposite Dennis Williams and Ashmore
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when the two men started arguing.         No other individuals were present.

Spearman said that he approached the two men for a cigarette lighter to

diffuse the situation. Williams gave him the lighter and asked him if he had

his gun. Spearman answered that he did, and when he took it out to show it

off, Ashmore reached for it, saying he wanted to see it.     Williams pushed

Spearman’s arm away twice, telling him not to give the gun to Ashmore.

Spearman claimed that this motion caused his cigarette to burn his hand,

resulting in him accidentally pulling the trigger and shooting Ashmore once in

the chest. He maintained that as Ashmore stumbled away, Williams grabbed

the gun and shot Ashmore twice more. (See id. at 32-42). He then hid the

gun in his house. (See id.).

      When asked about his police statement in which Spearman had

identified Thomas as the shooter, Spearman claimed that he lied to the police

because he knew Thomas already was charged with the murder and because

the detectives had advised him that if he did not provide the statement, he

and his friends would be charged with murder. (See id. at 61, 73-74). He

maintained that he was not read his rights before giving the statement, which

he said he made up with “a little coerc[ion] by detectives.” He also testified

that he did not know that other individuals had given statements before he

provided his to the detectives. (See id. at 64; N.T. Trial, 9/18/18, at 34).

      Spearman said he did not confess at the preliminary hearing because

he was about to make bail in his own criminal case, but that because he felt
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guilty, he eventually confessed at the 2013 trial. (See N.T. Trial, 9/17/18, at

114, 116-18). He also claimed that he had not wanted to get Williams in

trouble by implicating him in Ashmore’s murder. However, Williams was killed

by the time of the 2013 trial, which was when Spearman claimed for the first

time that he and Williams shot Ashmore. (See id. at 175, 181, 203-04).

      At the 2018 trial, Detective Golphin read Spearman’s August 5, 2010

statement given to him and Detective Nordo. (See N.T. Trial, 9/18/18, at

107-13). In his statement, Spearman told the detectives that on the night of

the murder, he was standing on the corner across from a group of people that

included Thomas and Ashmore when he saw Thomas pull out a gun and shoot

Ashmore.    He said that after the shooting, he and everyone else started

running away and when he got down the block and around the corner, Thomas

confronted him, handed him a bag containing the .45 handgun and told him

to hide it. Spearman stated that he kept the firearm in his basement until

May 22, 2010, the day he was caught carrying it in public. He maintained that

Thomas never asked him about the gun. (See id.).

      Detective Golphin testified that he was present for Detective Nordo’s

entire interview of Spearman, that Spearman was advised of his rights and

signed them, and that he did not share any information given to detectives in

earlier statements or any other evidence with Spearman. (See id. at 98-99,

103-04). He stated that the detectives did not make any promises or use any



                                      9
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coercion to induce Spearman to sign the statement and that he witnessed

Spearman review and sign it. (See id. at 98-99, 104-07, 113-18).

      The   Commonwealth presented evidence          of   Spearman’s   possible

intimidation.   After Spearman’s preliminary hearing on the gun charge, a

group of inmates attacked him and stabbed him with a pen while he was

waiting to be transported back to jail. In a phone call with his brother several

days later, Spearman told him that Thomas told other inmates that he was

cooperating with the police. (See N.T. Trial, 9/17/18, at 125-26, 131). Two

weeks later, he mailed a letter to Thomas’s attorney, confessing that he

committed the murder alone and that he was intoxicated at the time he

provided a statement to detectives implicating Thomas. (See id. at 179-80).

However, he later told an investigator for Thomas’s attorney that he sent the

correspondence because someone had slipped him a threatening letter in jail

ordering him to do so. He told the investigator that he knew nothing about

the murder and only signed the police statement because the detectives told

him Thomas was the shooter and promised to dismiss his gun charge in

exchange. (See id. at 187-90).

                                4. Kaheem Brown

      When called to testify at trial, Brown immediately stated, “I don’t know

nothin’.”   (N.T. Trial, 9/12/18, at 5).   He maintained that he could not

remember anything from 2010. When confronted with his prior statement to



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police, he testified that he did not recognize it or remember providing the

answers therein. (See N.T. Trial, 9/12/18, at 5, 35-61).

      Brown was asked about his 2013 trial testimony in which he had claimed

that he was not present at the shooting and had heard about it at home shortly

after it happened. (See id. at 79-80). He also stated that police officers

picked him up two weeks after the shooting and denied him access to his

mother or a lawyer prior to questioning despite him having asked for both.

(See id. at 87). He claimed the detectives had tortured him into signing the

statement by beating him with their hands, prodding at his old bullet wounds,

and attempting to burn him with a lit cigarette. (See id. at 93). When asked

about this prior testimony, Brown maintained that he could not remember

giving any of it and did not remember the detectives torturing him. (See id.

at 143).

      Detective Peters read the transcript of Brown’s police statement into

evidence. (See N.T. Trial, 9/18/18, at 156-61). In it, Brown stated that on

the night of Ashmore’s murder, he was on the corner across the street from

David Williams and the same individuals identified by Devlin and Jones in their

statements. He said that he saw Thomas pull out a “dirty” black gun and

shoot Ashmore. Brown then ran home. (See id.).

      Detective Peters testified that Brown agreed to be interviewed before he

gave his August 31, 2010 police statement to him and Detective Williams and

that he did not ask for either his mother or a lawyer. (See id. at 149). The
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detective denied that Brown was beaten or forced into signing the statement,

identifying a photograph of himself and Brown casually reviewing it. (See id.

at 151, 171). Finally, he stated that no evidence was provided, no answers

were suggested and Brown signed the statement in his presence. (See id. at

154, 165-66).

      The Commonwealth provided evidence of Brown’s possible intimidation.

Specifically, shortly after Brown gave police his statement, it was posted

around the neighborhood in stores and on telephone poles. (See N.T. Trial,

9/12/18, at 211). Months later, a man put a gun to Brown’s mother’s head

at a local laundromat, pulling the trigger twice. The gun did not go off and

the man fled. (See id. at 195-97). Approximately a week later, four bullets

were fired at Brown’s home, shattering a picture and lodging in the front hall.

(See id. at 209-10).

      On September 19, 2018, at the conclusion of trial, the jury convicted

Thomas of first-degree murder and related charges. The court sentenced him

to an aggregate term of life imprisonment. Thomas timely appealed. He and

the court have complied with Rule 1925(a). See Pa.R.A.P. 1925.

                                      B.

                       Detectives Nordo and Williams

      On September 5, 2018, the Commonwealth filed a Motion in Limine to

Preclude Reference to Detective Nordo’s Alleged Misconduct on the basis that

such evidence was hearsay, irrelevant and collateral. (See Commonwealth’s
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Motion in Limine, 9/05/18, at 5).      More specifically, the Commonwealth

maintained that, although the detective had since been fired by the

Philadelphia Police Department for his misconduct, his actions occurred

approximately five years after his interrogations in this case, none of the

allegations involved Thomas’s case, no criminal charges had been filed, and

the Commonwealth did not intend to call him as a witness. (See id. at 3).

Therefore, the Commonwealth argued, Detective Nordo’s misconduct was a

collateral issue. (See id. at 4) (citing cases). The court granted the motion

the same day.

      Neither Detective Nordo nor Detective Williams testified at trial. At the

time of trial, Detective Nordo had been dismissed from the Philadelphia Police

Department for allegedly putting money in prison inmates’ commissary

accounts and improperly communicating with witnesses and defendants

outside of his official duties.    There was no evidence of misconduct by

Detective Williams at that time.

      Since Thomas’s trial, the Commonwealth has filed criminal charges

against Detectives Nordo and Williams premised on their alleged misconduct

in the investigation of crimes and use of police resources and has vacated the

judgment of sentence and conviction in other cases based on Detective

Nordo’s misconduct. (See Thomas’s Brief, at 39-40). It has provided Thomas

with related discovery. On April 22, 2019, Thomas filed a motion for remand

to allow the trial court to conduct an evidentiary hearing based on this newly
                                      13
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provided evidence.6        This Court denied the motion per curiam, without

prejudice to Thomas bringing the issue up with this merits panel. (See Per

Curiam Order, 5/17/19).

                                  1. Detective Nordo

       Since the conclusion of his trial, the Commonwealth has provided

Thomas with information about Detective Nordo’s role in an unrelated murder

case, Commonwealth v. Powell, No. CP-51-CR-0006915-2015. In Powell,

the trial court dismissed all charges after “new and uniquely troubling

information” about Detective Nordo’s investigative techniques were revealed

at a pretrial hearing on Powell’s motion to dismiss. (Commonwealth’s Brief,

at 14).7

       At the hearing, the evidence showed that Detective Nordo made phone

calls and unauthorized visits to incarcerated witnesses and deposited money

into their prison accounts. He also had unauthorized contact with a judge

without the District Attorney’s knowledge and sought pretrial release of an

incarcerated witness. He lied about whether he had prior relationships with



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6 On January 24, 2019, this Court granted a motion for remand for a hearing
regarding Nordo’s alleged misconduct in Commonwealth v. McCoy, No. 598
EDA 2017.

7We rely on the Commonwealth’s description of the evidence it provided to
Thomas because it is not part of the record. (See Commonwealth’s Brief, at
14-16).

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witnesses he claimed only to have met during his investigation of Powell and

his co-defendant. One of the witnesses could be heard on recorded prison

phone calls telling Detective Nordo that he loves him and calling him “Coach.”

Nordo was unavailable for Powell’s pretrial hearing because Nordo’s attorney

stated that Nordo would assert his Fifth Amendment privilege against self-

incrimination.

      Further, Detective Nordo took a statement from a person who was under

the influence of illegal narcotics and suggested everything that ultimately was

said in the statement.     That statement alluded to another conversation

between the individual and the detectives that was not recorded.           The

detective had kept Powell’s co-defendant in custody for seventeen hours

before taking his written statement.

      The Commonwealth also disclosed to Thomas a grand jury report that

detailed Detective Nordo’s coercive interrogation techniques, including

threatening individuals with prosecution, intimidating individuals into signing

false statements and giving people cash rewards for providing fabricated

statements.      The disclosure included multiple indictments that charged

Detective Nordo with coercive sex crimes related to his interrogation of

suspects and witnesses. (See Commonwealth’s Brief, at 16).

                              2. Detective Williams

      Detective Nathan Williams was arrested in November 2019 and charged

with tampering with public records, unsworn falsification to authorities,
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tampering with or fabricating physical evidence, and obstructing the

administration of law. Since that time, the Commonwealth provided Thomas

with certain related disclosures pursuant to its practice. Those disclosures

included information from an internal investigation report showing that

Detective Williams used police database records to find personal information

about a woman that his cousin had been harassing and send the woman’s

personal information to his cousin, and then lying, attempting to conceal his

misconduct from internal investigators. (See id.).

                                       III.

     On appeal, Thomas argues that the verdict was against the sufficiency

and weight of the evidence because it was “inherently unreliable” due to the

eyewitness’s recantations and the contradictory versions of events.         (See

Thomas’s Brief, at 3, 13-22). He also requests that we remand this case for

an evidentiary hearing about the newly-disclosed evidence of the misconduct

of Detectives Nordo and Williams in their interrogation techniques and alleges

that the Commonwealth committed a Brady violation by failing to disclose

this information sooner.      (See id. at 36-37, 46-54).   The Commonwealth

agrees   that   remand   is   appropriate.    It   maintains   “[b]ecause   the[]

eyewitnesses    subsequently      recanted,   their   out-of-court   statements

constituted the only evidence that [Thomas] was responsible for the victim’s

killing, [and] the Commonwealth cannot maintain confidence in [Thomas’s]

conviction absent an evidentiary hearing focused on exploring the potential
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misconduct in this case.” (Commonwealth’s Brief, at 17). Now to the Thomas

sufficiency8 and weight9 of the evidence challenges.

                                               A.

       We address Thomas’s sufficiency of the evidence claim first. 10 Thomas

maintains that the testimony of the eyewitnesses, the only evidence linking


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8 As we explain in more detail later in this decision, we are remanding this
case for the trial court to consider Thomas’s after-discovered evidence and
Brady claims in the first instance. We consider his sufficiency claim because,
if the evidence was insufficient, then the appropriate remedy would be to
discharge his conviction, making remand for consideration of those issues
unnecessary. See, e.g., Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.
Super. 2013) (en banc), appeal denied, 80 A.3d 777 (Pa. 2013) (“Because a
successful sufficiency of the evidence claim warrants discharge on the
pertinent crime, we must address this issue first.”) (citation omitted).

9 Thomas failed to preserve his weight of the evidence issue in a post-sentence
motion thereby waiving. See Pa.R.Crim.P. 607(A); Commonwealth v.
Jones, 191 A.3d 830, 834-35 (Pa. Super. 2018). However, in the interest of
judicial economy, we will consider the issue.

10 “Our standard of review is de novo and our scope of review is limited to
considering the evidence of record, and all reasonable inferences arising
therefrom, viewed in the light most favorable to the Commonwealth as the
verdict winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa.
2014) (citations omitted). The factfinder is free to believe all, some or none
of the evidence, and determine its credibility. See Commonwealth v. Mack,
850 A.2d 690, 693 (Pa. Super. 2004). The factfinder resolves any doubt as
to the facts and circumstances the Commonwealth establishes unless they are
“so weak and inconclusive that, as a matter of law, no probability of fact can
be drawn from the combined circumstances.” Commonwealth v. Taylor,
831 A.2d 661, 663 (Pa. Super. 2003) (citation omitted). We do not reweigh
evidence or substitute our judgment for that of the factfinder.            See
Commonwealth v. Mitchell, 902 A.2d 430, 449 (Pa. 2006).



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him to the crime, “was inherently unreliable” where it was contradictory and

the witnesses recanted their police statements.11 (Thomas’s Brief, at 21; see

id. at 13-22).12

                                1. Recantation testimony

        Recantation occurs with some frequency in the criminal context. Where

its witness recants, the Commonwealth can rely on prior inconsistent

statements that are “demonstrably reliable and trustworthy” as substantive

evidence. Commonwealth v. Grimes, 648 A.2d 538, 546 (Pa. Super. 1994),

appeal quashed, 670 A.2d 642 (Pa. 1995). The Commonwealth may use a

prior    inconsistent    statement      as      substantive   evidence   if   it   is   “a

contemporaneous, verbatim recording of a witness’s statement, and that

recording is either electronic, audiotaped or videotaped, or where the



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11 We agree with Thomas’s observation that in his appeal of the 2013
conviction, this Court found that the recanted testimony did not provide such
overwhelming evidence that the erroneously admitted evidence could not
have contributed to the verdict. (See Thomas’s Brief, at 13); (see also
Thomas, supra at *7). However, the Commonwealth was proceeding under
a different theory, i.e., that Thomas murdered the victim over a drug dispute,
and there was no evidence linking Thomas to the drug trade other than the
improperly admitted hearsay and rap lyrics. (See Thomas, supra at *7).
Here, the Commonwealth’s theory was that Thomas shot Ashmore in
retaliation for an earlier killing, something each of the witnesses had stated.
Therefore, our holding in that appeal has no bearing on the argument here.

12 Thomas misapprehends our standard of review. Much of his argument on
this issue is a restatement of the witnesses’ testimony in the light most
favorable to him. (See Thomas’s Brief, at 14-21).

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statement was given under oath at a formal legal proceeding, or where the

statement is reduced to a writing signed and adopted by the declarant.”

Commonwealth v. Bibbs, 970 A.2d 440, 448 (Pa. Super. 2009), appeal

denied, 982 A.2d 1227 (Pa. 2009) (citation omitted). Importantly, such out-

of-court statements, even where inconsistent, are sufficient to sustain a

conviction. See, e.g., Commonwealth v. Brown, 52 A.3d 1139, 1171 (Pa.

2012) (out-of-court statements of three recanting witnesses sufficient to

sustain verdict where statements were “fundamentally consistent with one

another in recounting the same narrative of the manner in which the shooting

transpired.”).

      Here, the statements, while recanted, were taken contemporaneously

to the witnesses speaking with police and signed by each of them, satisfying

the criteria of Bibbs. Hence, they were properly admitted, and it was for the

jury to determine the credibility and weight to be given to them in light of the

witnesses’ recantations and allegations of coercion.

                                  2. Sufficiency

      Evidence is deemed to be sufficient where it establishes all elements of

the crime charged. In this case, the Commonwealth charged Thomas with

first-degree homicide, possessing an instrument of crime, carrying a firearm

on a public street or public property in Philadelphia and firearms not to be

carried without a license.



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      To prove first-degree murder, the Commonwealth must establish that a

person was unlawfully killed by the defendant with malice and specific intent

to kill. See Commonwealth v. Padilla, 80 A.3d 1238, 1244 (Pa. 2013),

cert. denied, 573 U.S. 907 (2014); 18 Pa.C.S. §§ 2501, 2502(a). There is no

required period of reflection and the defendant can form the specific intent to

kill in the fraction of a second. See Commonwealth v. Fisher, 769 A.2d

1116, 1124 (Pa. 2001), cert. denied, 535 U.S. 906 (2002). Indeed, shooting

the victim in the general area of a vital organ is enough evidence of malice

and specific intent to support a conviction for murder in the first degree. See

Commonwealth v. Predmore, 199 A.3d 925, 933 (Pa. Super. 2018), appeal

denied, 208 A.3d 459 (Pa. 2019).

      Pursuant to the Crimes Code, to establish possession of an instrument

of crime, the Commonwealth must prove that the defendant “possess[ed] any

instrument of crime with the intent to employ it criminally.” 18 Pa.C.S. § 907.

It is beyond peradventure that a gun can be an instrument of crime. Finally,

carrying a concealed firearm outside of one’s abode or place of business

without a license and carrying a firearm on a public street in Philadelphia are

prohibited by the Crimes Code. See 18 Pa.C.S. §§ 6106(a)(1), 6108.

      In this case, the record reflects that in his statement to police, every

witness identified Thomas as the individual who possessed a gun on the street

in Philadelphia and that he fatally shot Ashmore multiple times.       Ashmore

sustained injuries to vital organs, including his sternum, heart, ribs and lungs.
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This evidence was sufficient to establish that Thomas possessed an instrument

of crime on his person in Philadelphia and that he used it to unlawfully kill

Ashmore with specific intent. Although these statements were later recanted

by the witnesses, as stated above, prior inconsistent statements can be

sufficient to establish a crime and it was for the jury to determine the

credibility of the witnesses and the weight to be accorded their testimony.

Therefore, Thomas’s challenge to the sufficiency of the evidence fails.

                                               B.

       Next, we turn to Thomas’s claim that the verdict was against the weight

of the evidence.13 Thomas argues that the lower court abused its discretion

in relying on the witnesses’ police statements, not their trial testimony. He

maintains that “[t]hey were all either offered inducements to implicate Mr.

Thomas or were threatened with being charged with this crime.” (Thomas’s

Brief, at 23). Additionally, he maintains that Spearman’s admission to the




____________________________________________


13 Our review of a weight claim is a review of the trial court’s exercise of
discretion, not the underlying question of whether 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 that the verdict was or was
not against the weight of the evidence.” Commonwealth v. Sebolka, 205
A.3d 329, 341 (Pa. Super. 2019) (citation omitted). We cannot substitute our
judgment for that of the factfinder, and will only reverse a trial court’s ruling
in this regard where the verdict is so contrary to the evidence that it shocks
our sense of justice. See Commonwealth v. Johnson, 668 A.2d 97, 101
(Pa. 1995), cert. denied, 519 U.S. 827 (1996).

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homicide and possession of the murder weapon and the lack of fingerprints or

DNA evidence weigh in favor of granting a new trial. (See id. at 22-23).

      The trial court found that the verdict was not against the weight of the

evidence where the witnesses identified Thomas as the shooter in signed

written statements. As we noted in our review of Thomas’s sufficiency of the

evidence claim, it was for the jury to determine what weight to give the

evidence, including the witnesses’ recantations, their claims of threats and

inducements, and Spearman’s admission. Because there is record support for

the jury’s determination, we will not reweigh the evidence or determine its

credibility. Further, the record does not reflect that the trial court overrode

or misapplied the law or that the judgment the court exercised was manifestly

unreasonable or the result of partiality, prejudice, bias or ill-will.     See

Commonwealth v. Davido, 106 A.3d 611, 64 (Pa. 2014). Therefore, we

decline to find that the trial court abused its discretion in denying Thomas’s

weight of the evidence challenge and this claim fails. See Johnson, supra

at 101; Sebolka, supra at 341.

                                      C.

                    After-Discovered Evidence and Brady

      Finally, both Thomas and the Commonwealth ask that we remand this

case for the trial court to hold a hearing on the after-discovered evidence of

Detectives Nordo’s and Williams’s interrogation techniques. (See Thomas’s

Brief, at 36-46, 49-55); (Commonwealth’s Brief, at 17-22).       Thomas also
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alleges a Brady violation against the Commonwealth for failing to provide this

information sooner because the prosecutor had a duty to know about the

investigation of Detectives Nordo and Williams in other cases.14 (See id. at

46-49).

       “A post-sentence motion for a new trial on the ground of after-

discovered evidence must be filed in writing promptly after such discovery.”

Pa.R.Crim.P. 720(C).         The Comment to Rule 720 explains that “after-

discovered evidence discovered during the direct appeal process must be

raised promptly during the direct appeal process, and should include a request

for a remand to the trial judge[.]” Pa.R.Crim.P. 720(C), Comment.

       To obtain relief on a claim of after-discovered evidence, the evidence

must satisfy a four-prong test:

       (1) the evidence could not have been obtained before the
       conclusion of the trial by reasonable diligence; (2) the evidence is
       not merely corroborative or cumulative; (3) the evidence will not
       be used solely for purposes of impeachment; and (4) the evidence
       is of such a nature and character that a different outcome is likely.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007), appeal

denied, 958 A.2d 1047 (Pa. 2008) (citation omitted).


____________________________________________


14 The Commonwealth maintains that the Brady claim is waived for Thomas’s
failure to raise it in his Rule 1925(b) statement. (See Commonwealth’s Brief,
at 18 n.4); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.”). While generally, this is true, under the unique circumstances
of this case, and to allow the trial court and parties the opportunity to fully
develop the record on this issue, we decline to find waiver.
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      The United States Supreme Court held in Brady “that the suppression

by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady, supra

at 87. This duty to disclose evidence is applicable even where the defendant

has not made a request for it. See Strickler v. Greene, 527 U.S. 263, 280

(1999). Evidence is material “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would

have been different.”    Id. (citations omitted).   This rule includes evidence

known only to police investigators, but not the prosecutor, who has a duty to

learn of any evidence known by others who are acting on behalf of the

Commonwealth in the defendant’s case. See id.

      Here, the Commonwealth provided Thomas with evidence of the

“uniquely   disturbing    allegations    of   the    detectives’   misconduct.”

(Commonwealth’s Brief, at 22). Based on both parties’ recitation of the facts,

the police were aware of some of this alleged misconduct in other cases during

and prior to Thomas’s trial, although no criminal charges had been filed at that

time. However, what is not known is whether this misconduct occurred at the

police interrogations in this case, which, if it did, would certainly affect the

outcome of the trial, where the evidence tying Thomas to the crime were the

recanted police statements of the eyewitnesses. Based on the information

provided by the parties, we remand to provide the trial court the opportunity
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to develop the record and to rule upon Appellant’s after-discovered evidence

and Brady claims in the first instance.     See Rivera, supra, at 358–59;

Pa.R.A.P. 302(a) (“Issues not raised in the lower court . . . cannot be raised

for the first time on appeal.”); Pa.R.Crim.P. 720(C), Comment.

      Verdict affirmed.    Judgment of sentence vacated.      Application for

Remand granted. Case remanded for further proceedings consistent with this

decision. Jurisdiction relinquished.

      Judge Bowes joins the memorandum.

      Judge Shogan concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2020




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