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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                         :
                                               :
ARJUNA MASON A/K/A TONY MASON,                 :            No. 507 EDA 2014
                                               :
                           Appellant           :


          Appeal from the Judgment of Sentence, January 10, 2014,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-0009930-2012,
                          CP-51-CR-0009933-2012


BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED AUGUST 10, 2015

      Arjuna Mason a/k/a Tony Mason appeals the judgment of sentence of

January     10,   2014,    following     his   conviction   of   first-degree    murder,

aggravated assault, and related charges. After careful review, we affirm.

      The    charges      related   to   two    separate     incidents   the    night   of

October 21-22, 2011.        In the first incident, at approximately 11:45 p.m.,

appellant attempted to rob the victim, Ronald Parrish (“Parrish”), outside a

Chinese store at 6605 Chew Avenue.              The trial court has summarized the

facts related to this incident, in part, as follows:

                   Ronald Parrish testified that, on October 21,
             2011, he left to go to a Chinese store located at
             6605 Chew Avenue to purchase a cigar, commonly
             referred to as a “Dutch.” Mr. Parrish admitted that
             the cigar was purchased to smoke a joint.
             Mr. Parrish   testified  that,   at    approximately
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            11:45 pm, he arrived at the Chinese store, exited his
            2001 Ford Taurus, entered the store, purchased the
            cigar, and left the store to return to his vehicle.
            Mr. Parrish estimated that he was in the store for
            roughly two to three minutes before returning to his
            vehicle. As Mr. Parrish exited the store, Mr. Parrish
            noticed a person approaching him from the opposite
            side of the street with a raised gun aimed at him.
            Mr. Parrish immediately darted around his vehicle to
            the driver’s side of his car and tried to start his
            vehicle so that he could get away. As Mr. Parrish
            was trying to escape, the person who had been
            approaching Mr. Parrish was outside the closed
            driver’s side window, displaying the weapon inches
            from Mr. Parrish’s head and ordering Mr. Parrish to
            get out of the car and to “give it up” or “give that
            shit up.” Mr. Parrish was able to start his vehicle
            and pull away, but the person fired several shots
            [Footnote 2] at Mr. Parrish. Two of the shots hit
            Mr. Parrish—one entered the middle of his back and
            made contact with his right lumber [sic] spine and
            the second shot hit his shoulder. Mr. Parrish, injured
            and still bleeding, drove himself to Chestnut Hill
            Hospital where medical professionals transferred
            Mr. Parrish to Abington Hospital, the closest hospital
            with a trauma unit.

                  [Footnote 2] The crime scene unit found
                  ten   (10)     fired   cartridge casings
                  [(“FCC’s”)] at the scene.

Trial court opinion, 8/14/14 at 3-4 (citations to the transcript omitted).

Parrish described the shooter to police and subsequently picked appellant

out of a photo array as an individual who “looks like” the shooter. (Id. at

5.)   Police also secured surveillance video from a neighboring business

depicting the perpetrator wearing a black leather jacket with white trim and

a distinctive design on the back, as described by Parrish. (Id. at 5-6.) Four

projectiles were retrieved from Parrish’s vehicle. (Id. at 6.)


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     Later, at approximately 1:22 a.m. on October 22, 2011, appellant

fatally shot the victim/decedent, Anthony Mitchell (“Mitchell”), at 149 West

Sharpnack Street, only a few blocks away from the Chinese store. The facts

underlying this incident have been summarized, in pertinent part, as follows:

                   At approximately 1:22 am on October 22,
           2011, a flash radio call indicated that a person with a
           gun was holding a male against his will in the
           first-floor residence at 149 West Sharpnack Street.
           As would later be determined, four individuals were
           within the residence—Sharda Frye, Ijanaya Clark,
           Anthony Mitchell, and the Defendant. Sharda Frye,
           Ijanaya Clark’s cousin, and Anthony Mitchell were
           roommates in the first-floor unit. The flash radio
           announcement came in response to information
           received at the 911 call center. Sergeant Ayres
           testified that he and Sergeant Kennedy, both of
           whom were still at 6605 Chew Avenue and had just
           finished processing that crime scene, proceeded to
           149 West Sharpnack Street which was roughly four
           blocks away from the Chinese store. Sergeant Ayres
           testified     that    he,   Sergeant    Kennedy    and
           Officers McKeon and Bransfield, approached the front
           door of the residence. Sergeant Ayres testified that
           on about three occasions, a black female, roughly in
           her twenties, came to the bay window in the
           first-floor apartment which looked onto the front
           porch and looked out the window only to be pulled
           away from the window each time by another
           occupant within the residence. After the female
           peered through the window three times, the lights in
           the     first   floor   residence    were   shut    off.
           Sergeant Ayres testified that Officer McKeon checked
           the front door and found that the door was locked.
           Sergeant Ayres and Officer McKeon also banged on
           the door multiple times while yelling “Police” and
           demanding that the residents exit the property. In
           response to what they observed and the failure of
           the occupants to vacate the premises, Sergeant
           Ayres and Sergeant Kennedy manned the front door,



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            and Sergeant Ayres instructed Officers McKeon and
            Bransfield to cover the back of the residence.

                  Sergeant Ayres testified that he then contacted
            Lieutenant Overwise to apprise him of the situation.
            Lieutenant Overwise contacted the 911 caller to get
            more information and, based on what was told to
            him, Lieutenant Overwise declared the situation a
            barricade. Sergeant Ayres testified that between his
            arrival on location and Lieutenant Overwise’s
            determination that the situation be handled as a
            barricade, 5 to 10 minutes had elapsed. As part of
            barricade protocol, the SWAT team, the fire
            department, and medical personnel were instructed
            to come to the scene, and a staging area was setup
            a distance away from the epicenter of the incident.
            Sergeant Ayres testified that, shortly thereafter,
            Officer Bransfield, who was located outside the rear
            of the property, was yelling at an individual to lie
            down, show his hands, and come downstairs. A
            short time after the property had been secured by
            police, Ms. Clark and Ms. Frye exited the property,
            the police secured both females and escorted them
            to the staging area. Both before and after the
            females left the residence, Sergeant Ayres testified
            that he heard loud noises emanating from the
            residence as if someone was moving furniture or
            running up and down stairs. Sergeant Ayres testified
            that 5 to 10 more minutes passed after the two
            females exited the property until the Defendant
            came out, with his shirt off and in his hand and with
            his hands above his head, as instructed by the
            police.

Id. at 6-8 (footnote omitted) (citations to the transcript omitted).

      Officer Bransfield saw appellant wearing a distinctive black jacket

which was later found abandoned on the third floor of the residence. (Id. at

8-9.) It matched the jacket described by Parrish. (Id. at 4.) The decedent,

Mitchell’s DNA was found on appellant’s T-shirt. (Id. at 11.) In addition,



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the ballistic evidence recovered from both crime scenes, including bullet

specimens and FCC’s, came from the same weapon, a .9 mm handgun found

at 149 West Sharpnack Street.      (Id. at 10-11.)   The forensic pathologist,

Sam Gulino, M.D., testified that Mitchell died from a gunshot wound to the

head, entering slightly above and behind the left ear and exiting through the

right side of the neck. (Id. at 12.) Ijanaya Clark testified that appellant and

Mitchell were in the back room talking when she heard a gunshot. (Id. at

13.) Afterwards, she saw appellant with a gun in his waistband. (Id.)

      On November 26, 2013, following a jury trial, appellant was found

guilty of first-degree murder, aggravated assault by causing serious bodily

injury, and two counts each of possession of an instrument of crime (“PIC”)

and carrying a firearm without a license.    On January 10, 2014, appellant

was sentenced to life imprisonment without parole for first-degree murder,

and a consecutive sentence of 10-20 years’ imprisonment for aggravated

assault.   The remaining sentences were run concurrently.        Post-sentence

motions were denied, and this timely appeal followed.      Appellant complied

with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an

opinion.

      Appellant has raised the following issues for this court’s review:

            I.    Is the Defendant entitled to a new trial as the
                  result of Court error when the Court wrongfully
                  determined that the key witness for the
                  Commonwealth was unavailable?




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            II.        Is the Defendant entitled to a new trial as the
                       result of Court error when the Court refused to
                       charge on alibi?

            III.       Is the Defendant entitled to an arrest of
                       judgment on all charges where the evidence is
                       insufficient to sustain the verdict?

Appellant’s brief at 3.1

      First, appellant contends that the trial court erred in determining that

Ijanaya Clark (“Clark”) was unavailable, thus permitting the Commonwealth

to introduce her preliminary hearing testimony as well as her prior

statement to homicide detectives. Following an evidentiary hearing, the trial

court found that the Commonwealth had made a good faith, reasonable

effort to secure Clark’s presence at trial. We agree.

            Under both our federal and state constitutions a
            criminal defendant has a right to confront and
            cross-examine witnesses against him. However, it is
            well established that an unavailable witness’ prior
            recorded testimony from a preliminary hearing is
            admissible at trial and will not offend the right of
            confrontation, provided the defendant had counsel
            and a full opportunity to cross-examine that witness
            at the prior proceeding.

Commonwealth v. Bazemore, 614 A.2d 684, 685 (Pa. 1992) (citations

omitted).   Where the Commonwealth seeks to admit the prior recorded

testimony   of     a    missing   witness,   it    must     be    established     that   the

Commonwealth           made   a   “good   faith”   effort    to    locate   the    witness.



1
  Appellant also raised a challenge to the weight of the evidence in his
Rule 1925(b) statement, which has been abandoned on appeal.


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Commonwealth v. Jackson, 344 A.2d 842 (Pa. 1975). What constitutes a

“good faith” effort is a matter left to the discretion of the trial court.    Id.

See also Commonwealth v. Lebo, 795 A.2d 987, 990 (Pa.Super. 2002)

(“It is within the discretion of the trial court to determine what constitutes a

good faith effort to locate a missing witness, and the decision of the court

will not be overturned absent an abuse of discretion.” (citations omitted)).

“The length to which the prosecution must go to produce the testimony is a

question of reasonableness.”    Commonwealth v. Melson, 637 A.2d 633,

638 (Pa.Super. 1994), appeal denied, 647 A.2d 509 (Pa. 1994) (citations

omitted).

      The trial court details the substantial efforts the Commonwealth made

to locate Clark in its August 14, 2014 opinion. (Trial court opinion, 8/14/14

at 16-21.)     Police spoke with family members including Clark’s sister,

mother, Ziakia Clark (“Ziakia”), and grandmother.       (Id. at 17-18.)      Clark

was listed as living at her mother’s home but police made several visits

there without success.     Police were able to reach Clark using several

different cell phone numbers; each time, she provided police with a bogus

address and the number was subsequently disconnected.           (Id. at 17-18,

39.) A bench warrant was issued for Clark; the Southwest Warrant Unit also

went to Ziakia’s residence on multiple occasions but received no response.

(Id. at 19.)   Ziakia told a police detective that her daughter knew police

were looking for her regarding this matter and that she did not want to be



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found. (Id. at 21, 39.) Police conducted surveillance outside Ziakia’s house

and checked local hospitals and the medical examiner’s office. (Id. at 21,

40.) These efforts continued up to the day of trial. (Id. at 19.) In short,

the Commonwealth made a good faith, reasonable attempt to find Clark.

       Appellant argues that the Commonwealth should have taken extra

steps to locate Clark, including checking with the Department of Public

Welfare or medical clinics. (Appellant’s brief at 11-12.) Apparently, Clark

had recently given birth.    Appellant also suggests that the Commonwealth

could have enlisted the assistance of the United States Marshals.     (Id. at

12.) However, the test is one of reasonableness. Under the circumstances,

we agree with the trial court that the Commonwealth made reasonable, good

faith efforts to locate the missing witness, who clearly did not wish to be

found.     The trial court did not abuse its discretion in finding Clark

“unavailable” and permitting the Commonwealth to introduce her prior

testimony.

       In his second issue on appeal, appellant claims that he was entitled to

an alibi instruction.   According to appellant, his own testimony, as well as

that of Sherille Haywood (“Haywood”), clearly placed him at a location other

than Chew Avenue at the time of the first shooting.      (Appellant’s brief at

13.)     In addition, appellant argues that because the ballistics evidence

matched for both shooting incidents, if the jury had a reasonable doubt as to

appellant’s involvement in the Chew Avenue incident due to the alibi



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testimony, they could also have had a reasonable doubt as to his

involvement in the murder of Mitchell at 149 West Sharpnack Street. (Id.)

Therefore, appellant demands a new trial on all charges.       The trial court

agreed with appellant that he was entitled to an alibi instruction as to the

shooting at 6605 Chew Avenue, and found that its failure to give the

requested alibi instruction was reversible error. (Trial court opinion, 8/14/14

at 37.) We disagree.

            An alibi is a defense that places a defendant at the
            relevant time at a different place than the crime
            scene and sufficiently removed from that location
            such that it was impossible for him to be the
            perpetrator. Where a defense rests on timing rather
            than location, it is not considered an alibi.

Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa.Super. 2011) (en banc),

appeal denied, 42 A.3d 1060 (Pa. 2012), citing Commonwealth v.

Collins, 702 A.2d 540 (Pa. 1997).

            The Pennsylvania Supreme Court has defined alibi as
            “a defense that places the defendant at the relevant
            time in a different place than the scene involved and
            so removed therefrom as to render it impossible for
            him to be the guilty party.” Commonwealth v.
            Roxberry, 529 Pa. 160, 163, 602 A.2d 826, 827
            (1992); see Commonwealth v. Jones, 529 Pa.
            149, 150-54, 602 A.2d 820, 821-22 (1992)
            (acknowledging alibi charge to jury as accurately
            stating the law:      “whether the testimony given
            covers the entire time the offense is shown to have
            been committed and whether it precludes the
            possibility of defendant’s presence at the scene.”);
            Commonwealth v. Pounds, 490 Pa. 621, 631, 417
            A.2d 597, 602 (1980) (holding that the testimony of
            the defendant which placed him at locations distinct



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                from the vicinity of the crime at the time it was
                committed was sufficient to raise an alibi defense).

Commonwealth v. Poindexter, 646 A.2d 1211, 1218 (Pa.Super. 1994),

appeal denied, 655 A.2d 512 (Pa. 1995).

                An alibi instruction is required if the defendant
                presents evidence which covers the time period
                when the crime was committed and which puts him
                at a different location than that of the crime scene.
                Commonwealth v. Repaci, 419 Pa.Super. 591,
                594-95, 615 A.2d 796, 798 (1992).           It is not
                necessary for an alibi defense to be corroborated in
                order to constitute an alibi. See Roxberry, 529 Pa.
                at 165, 602 A.2d at 828; Commonwealth v.
                Saunders, 529 Pa. 140, 602 A.2d 816 (1991);
                Commonwealth v. Willis, 520 Pa. 289, 553 A.2d
                959 (1989) (all requiring an alibi instruction when
                the alibi defense had been presented solely by the
                unsupported testimony of the defendant). There is
                no minimum or threshold quantum of physical
                separation necessary for a defense to constitute an
                alibi, so long as the separation makes it impossible
                for the defendant to have committed the crime. Id.

Id.

        Haywood testified that she was living with appellant at the time of the

incidents. (Notes of testimony, 11/25/13 at 68.) Haywood testified that on

the     night   of   October    21,    2011,      appellant   left   their   residence   at

approximately 11:00 p.m.           (Id. at 70.)       Neither appellant nor Haywood

owned a vehicle.        (Id.)     According to Haywood, it would take someone

approximately 30-40 minutes to walk from their residence to Chew Avenue.

(Id. at 71.) Haywood testified that appellant was gone for about an hour.

(Id.)       When      appellant       returned,     they   talked    for     approximately



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15-20 minutes and then appellant left again.         (Id. at 72.)    Haywood

admitted that appellant’s cousin, James Newkirk (“Newkirk”), had a car and

would give appellant a ride from time to time.     (Id. at 79-80.)   Haywood

was not sure whether or not Newkirk gave appellant a ride that night. (Id.

at 80.) Haywood did not know whether appellant was walking or got a ride

from someone. (Id.)

      Appellant testified that he left the house around 11:00 p.m. and

walked to the 7-11. (Id. at 94-95.) Appellant denied being in the vicinity of

6605 Chew Avenue on the night of October 21, 2011.               (Id. at 99.)

According to appellant, he had never seen Parrish until the date of his first

court appearance.    (Id. at 100.)     Appellant admitted getting a ride to

Sharpnack Street with Newkirk a little after midnight, but denied shooting

Mitchell. (Id. at 98, 100, 113.)

      Clearly, Haywood’s testimony did not establish an alibi for the Chew

Avenue incident, the assault on Parrish. Haywood admitted that her times

were approximations. Haywood did not know whether appellant was walking

or had gotten a ride from Newkirk. Even if appellant were on foot, he could

have left the house at 11:00 p.m. and arrived at Chew Avenue before

11:45 p.m. when the incident occurred. Haywood’s testimony, if believed by

the jury, did not preclude the possibility of appellant’s presence at the crime

scene.




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      Although appellant did take the stand and testify that he was not at

6605 Chew Avenue that night, appellant’s request for an alibi instruction was

based solely on Haywood’s testimony. (Id. at 142-143; notes of testimony,

11/26/13 at 40.) Appellant never requested an alibi instruction based on his

own testimony, only that of Haywood.           See Pa.R.A.P., Rule 302(a),

42 Pa.C.S.A. (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”); Commonwealth v. Corley, 638 A.2d

985, 990 (Pa.Super. 1994), appeal denied, 647 A.2d 896 (Pa. 1994) (“A

defendant must object to a jury charge at trial, lest his challenge to the

charge be precluded on appeal.” (citations omitted)).        Since Haywood’s

testimony did not put appellant at a different location than that of the crime

scene, appellant was not entitled to an alibi instruction based on Haywood’s

testimony. The trial court did not err in denying appellant’s request.2

      Finally, appellant challenges the sufficiency of the evidence to support

his convictions.   According to appellant, the evidence was insufficient to

support the charge of aggravated assault where Parrish never positively

identified appellant and there was no other evidence linking him to the

crime. (Appellant’s brief at 15.) Appellant also claims that the evidence in

the murder of Mitchell was purely circumstantial and established only his

presence in the home at the time shots rang out. (Id.) Appellant argues



2
 With regard to the murder of Mitchell, appellant admitted being inside the
house that night. There is no alibi issue with regard to the second incident.


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that no one actually saw him fire the fatal shot. (Id.) Appellant suggests

that the jury’s verdict was based on mere speculation and conjecture. (Id.

at 16.) We disagree.

           The standard we apply in reviewing the sufficiency of
           evidence is whether, viewing all the evidence
           admitted at trial in the light most favorable to the
           verdict winner, there is sufficient evidence to enable
           the fact-finder to find every element of the crime
           beyond a reasonable doubt. In applying the above
           test, we may not weigh the evidence and substitute
           our judgment for that of the fact-finder. In addition,
           we note that the facts and circumstances established
           by the Commonwealth need not preclude every
           possibility of innocence. Any doubts regarding a
           defendant’s guilt may be resolved by the fact-finder
           unless the evidence is so weak and inconclusive that
           as a matter of law no probability of fact may be
           drawn from the combined circumstances.            The
           Commonwealth may sustain its burden of proving
           every element of the crime beyond a reasonable
           doubt by means of wholly circumstantial evidence.
           Moreover, in applying the above test, the entire
           record must be evaluated and all evidence actually
           received must be considered. Finally, the trier of
           fact while passing upon the credibility of witnesses
           and the weight of the evidence produced, is free to
           believe all, part or none of the evidence.

Commonwealth v. Johnson, 833 A.2d 260, 262-263 (Pa.Super. 2003),

quoting   Commonwealth      v.   Lambert,    795   A.2d   1010,      1014-1015

(Pa.Super. 2002) (internal citations and quotation marks omitted).

           A person is guilty of first degree murder where the
           Commonwealth proves: (1) a human being was
           unlawfully killed; (2) the person accused is
           responsible for the killing; and (3) the accused acted
           with specific intent to kill. See 18 Pa.C.S. 2502(a)[].
           An intentional killing is a “[k]illing by means of
           poison, or by lying in wait, or by any other kind of


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            willful, deliberate   and    premeditated    killing.”
            18 Pa.C.S. 2502(d). “The Commonwealth may prove
            that a killing was intentional solely through
            circumstantial evidence. The finder of fact may infer
            that the defendant had the specific intent to kill the
            victim based on the defendant’s use of a deadly
            weapon upon a vital part of the victim’s body.”
            Commonwealth v. Blakeney, 596 Pa. 510, 946
            A.2d 645, 651 (2008) (citations omitted).

Commonwealth v. Brown, 987 A.2d 699, 705 (Pa. 2009), cert. denied,

562 U.S. 844 (2010) (additional citation omitted).

      Appellant was convicted of aggravated assault under 18 Pa.C.S.A.

§ 2702(a)(1), which provides as follows:

            (a)   Offense defined.--A person         is   guilty   of
                  aggravated assault if he:

                  (1)    attempts to cause serious bodily
                         injury to another, or causes such
                         injury intentionally, knowingly or
                         recklessly   under    circumstances
                         manifesting extreme indifference to
                         the value of human life[.]

      With regard to Mitchell’s murder, Clark testified that he and appellant

were arguing for ten minutes before the gunshot. While no one actually saw

appellant pull the trigger, Clark testified they were in the same room.

Mitchell’s blood was found on appellant’s shirt. The jury was free to discount

appellant’s self-serving testimony that he was using the bathroom when he

heard the gunshot.      The jury could also infer consciousness of guilt from

appellant’s actions immediately following the shooting, including his refusal

to exit the premises upon police command and hiding the gun on a ledge



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outside the third-floor window. Mitchell was shot in the head, a vital part of

his body.   Clearly, the evidence was sufficient for the jury to find that

appellant shot the decedent with specific intent to kill.

      Turning to the first incident, the assault of Parrish outside the Chinese

store, while the victim was unable to positively identify appellant as his

assailant, he did pick his picture out of a photo array as a person who

“looks like” the shooter. (Trial court opinion, 8/14/14 at 5, citing notes of

testimony, 11/20/13 at 81, 114-120.)          Parrish also accurately described

appellant’s physical appearance and the distinctive black leather jacket he

was wearing, with white trim and a decal on the back.            (Id. at 5-6.)

Furthermore, the ballistics evidence from the Chew Avenue crime scene,

including the FCC’s and bullet specimens, matched the ballistics evidence

recovered from 149 Sharpnack Street.          The FCC’s and bullets from both

crime scenes all came from the same weapon, the .9 mm handgun left at

149 West Sharpnack Street. In addition, the two crime scenes were close in

proximity, only a few blocks away. Police had just completed processing the

Chew Avenue crime scene when they were called to proceed to 149 West

Sharpnack Street. Viewing all the evidence in the light most favorable to the

Commonwealth, as verdict winner, it was sufficient for the jury to conclude,




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beyond a reasonable doubt, that appellant was Parrish’s assailant.3

Appellant’s sufficiency claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/2015




3
  Appellant does not challenge the sufficiency of the evidence to support his
weapons convictions. In addition, although his sufficiency challenge to the
aggravated assault conviction is based on misidentification, obviously the
evidence was sufficient to make out all the elements of aggravated assault,
causing serious bodily injury, where the victim was shot several times.


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