J-S63018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SEAN AUSTIN,

                            Appellant                 No. 966 EDA 2015


          Appeal from the Judgment of Sentence November 7, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0009078-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 21, 2016

       Appellant, Sean Austin, appeals from the judgment of sentence

entered following his convictions of one count each of second-degree

murder, robbery, burglary, unlawful possession of a firearm, possession of

an instrument of crime (“PIC”), and two counts of conspiracy. We affirm.

       The trial court summarized the underlying facts of this case as follows:

             In the early morning hours of July 12, 2011, after having
       developed a criminal plan with Oren Thomas (“Thomas”) also
       known as “O” and Basemy Gabriel (“Gabriel”) also known as
       “Basir” or “Boz”[], Appellant and Gabriel entered the apartment
       of the decedent, Ronald Taylor (“Taylor”), with the intent to steal
       money and drugs. Thomas had told Appellant and Gabriel how
       to gain access to the apartment and provided information as to
       where the drugs would be found once they were inside. The
       apartment was located on the second floor of 1830 West
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     Cheltenham Avenue in the City and County of Philadelphia. It
     was after midnight when the two (2) men entered the apartment
     and Appellant was armed with a revolver. Taylor and his ten
     (10) year-old son were asleep on the couch, however the
     decedent awoke and confronted Appellant.         Appellant shot
     decedent two (2) times in the chest with a .32 caliber revolver
     prior to fleeing the apartment with Gabriel. The decedent’s son
     did not wake up until the next morning, whereupon he
     discovered his father dead. The child searched his father’s
     pockets looking for a phone to call for help, however found that
     the phone was gone.

           Thomas waited nearby for Appellant and Gabriel to enter
     and rob the decedent. From his vantage point, he could see
     Appellant, Gabriel, and Taylor. As he waited, he heard two (2)
     gunshots then left the area and went to Appellant’s house.
     When Appellant arrived home, he told Thomas that he had to
     shoot decedent in the leg and that he had gotten nothing in the
     robbery. The next day Appellant and Thomas spoke again and
     Appellant admitted shooting decedent and “putting him to
     sleep”.

            Taylor was pronounced dead at 8:33 A.M. on July 12,
     2011. An autopsy was performed by Associate Medical Examiner
     Dr. Marlon Osbourne. Decedent had suffered two (2) gunshot
     wounds, one (1) to the midline chest and one (1) to the left side
     of the chest, which caused extensive internal bleeding. The
     cause of death was found to be a gunshot wound to the chest.
     The manner of death was found to be homicide. Both pieces of
     ballistics evidence from the decedent’s body were consistent with
     having been fired from a .32 caliber revolver.

            Thomas was later arrested and made a statement to police
     after receiving his Miranda1 warnings. Thomas entered a guilty
     plea to the Murder, Conspiracy, and Robbery of Taylor prior to
     testifying at Appellant’s trial. Thomas was awaiting sentencing
     at the time he testified at Appellant’s trial. Gabriel was also
     arrested and made a statement to police after receiving his
     Miranda2 warnings. Gabriel entered a guilty plea to the Murder
     of Taylor prior to testifying at Appellant’s trial.
          1
           Miranda v. Arizona, 384 U.S. [436], at 475-477, 86
          S.Ct. 1602, at 1628-1629, 16 L.Ed.2d 694 (1966). A
          person must, before any questioning, be warned that

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            he has a right to remain silent, that any statement
            he does make may be used as evidence against him,
            and that he has a right to presence of an attorney,
            retained or appointed.
            2
                Id.

Trial Court Opinion, 9/16/15, at 2-4.

      On August 29, 2014, a jury convicted Appellant of the crimes stated

above. On November 7, 2014, the trial court sentenced Appellant to serve a

term of incarceration of life without parole for the second-degree murder

conviction. No further penalty was imposed for the remaining convictions.

Appellant filed timely post-sentence motions, which were denied by

operation of law on March 13, 2015.       This timely appeal followed.    Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I. Whether the adjudication of guilt is against the weight of the
      evidence and shocking to one’s sense of justice where there was
      no physical or scientific evidence linking the Appellant to
      possession of any firearm or to the victim’s apartment, where
      the witnesses were corrupt and polluted sources who received
      favorable treatment from the Commonwealth in return for their
      testimony against the Appellant, where there was no
      corroboration and where the Appellant lived openly in the
      neighborhood without any indicia of guilt until his arrest.

      II. Whether the adjudication of guilt is based upon insufficient
      evidence because it was an unreasonable inference in
      contradiction to the physical facts and in contravention to human
      experience to conclude beyond a reasonable doubt that the
      witnesses were truthful where there was no physical or scientific
      evidence linking the Appellant to the possession of a firearm or
      to the victim’s apartment and where the only witnesses against
      the Appellant were corrupt and polluted sources seeking
      favorable treatment from the Commonwealth.

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Appellant’s Brief at 6.

      Appellant first argues that the trial court erred in denying his post-

sentence motion challenging the weight of the evidence. Appellant’s Brief at

16-18.   Essentially, Appellant contends the verdict reflects that the jury

improperly credited the testimony of his co-conspirators indicating that

Appellant killed Taylor during a burglary of Taylor’s home.

      In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

             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. Commonwealth v. Widmer, 560
      Pa.    308,    319,    744    A.2d   745,     751-[7]52    (2000);
      Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
      1189 (1994). 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. Widmer, 560
      A.2d at 319-20, 744 A.2d at 752. 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.’” Id.
      at 320, 744 A.2d at 752 (citation omitted). It has often been
      stated that “a new trial should be awarded when the jury’s
      verdict is so contrary to the evidence as to shock one’s sense of
      justice and the award of a new trial is imperative so that right
      may be given another opportunity to prevail.” Brown, 538 Pa.
      at 435, 648 A.2d at 1189.

            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


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          of whether the verdict is against the weight of the
          evidence. Brown, 648 A.2d at 1189. Because the
          trial judge has had the opportunity to hear and see
          the evidence presented, an appellate court will give
          the gravest consideration to the findings and reasons
          advanced by the trial judge when reviewing a trial
          court’s determination that the verdict is against the
          weight of the evidence.         Commonwealth v.
          Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
          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 and that a new trial should be granted
          in the interest of justice.

     Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
     added).

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based
     on a challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

          The term “discretion” imports the exercise of
          judgment, wisdom and skill so as to reach a
          dispassionate conclusion within the framework of the
          law, and is not exercised for the purpose of giving
          effect to the will of the judge. Discretion must be
          exercised on the foundation of reason, as opposed to
          prejudice, personal motivations, caprice or arbitrary
          actions.   Discretion is abused where the course
          pursued represents not merely an error of judgment,
          but where the judgment is manifestly unreasonable
          or where the law is not applied or where the record
          shows that the action is a result of partiality,
          prejudice, bias or ill-will.

     Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
     S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
     [11]85 (1993)).




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Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      The jury, sitting as the finder of fact, chose to believe the evidence

presented by the Commonwealth and to disregard the version of events

presented by Appellant, as was its right. The trial court made the following

comprehensive     observation   regarding   the   evidence    offered   by   the

Commonwealth:

            This issue lacks merit as in the instant case, the jury’s
      verdict of guilty does not shock the conscience. At trial, the
      Commonwealth presented the testimony of both co-conspirators
      and the decedent’s son to establish that Appellant was the
      perpetrator of Second Degree Murder. Thomas testified that he
      knew Taylor, had been in his apartment before, and believed
      that Taylor had approximately $25,000-$35,000 worth of
      marijuana in his apartment on the night of July 11, 2011. (N.T.
      8/26/14 at 118-119, 144). Thomas told Appellant and Gabriel
      about his belief, and enlisted their help to rob Taylor. Id. at 118,
      119. Thomas told Appellant and Gabriel how to gain access to
      the apartment and provided information as to where the drugs
      would be found once they were inside. Id. at 118-119, 121.

             The Commonwealth then presented the testimony of
      Gabriel who corroborated the testimony of Thomas. Gabriel
      testified that the three (3) males planned for Appellant and
      Gabriel to enter Taylor’s apartment and rob him. Id. at 174.
      The Appellant was known to Gabriel as he lived on Gabriel’s
      block. Id. at 173. Gabriel testified that he had entered the
      apartment of decedent with Appellant with the intent of robbing
      the decedent. Id. at 175. Gabriel saw a revolver in Appellant's
      hand as they went up the stairs to the apartment. Id. When
      they entered the apartment both decedent and a small boy were
      asleep on a couch inside. Id. at 176. As Gabriel and Appellant
      searched the apartment, he heard an argument between
      Appellant and decedent followed by a gunshot. Id. at 176. As
      he was leaving the apartment, Gabriel saw Appellant with a gun

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     in his hand, and Taylor on the floor. Id. at 178. Appellant shot
     the decedent, causing serious bodily injury that resulted in his
     death. In a statement to police, Thomas testified that Appellant
     had a .32 caliber revolver on the night of the incident. Id. at
     141-142. Both pieces of ballistics evidence from the decedent’s
     body were consistent with having been fired from a .32 caliber
     revolver. (N.T. 8/27/14 at 29, 30). Taylor’s son testified that
     his father’s cell phone was gone. (N.T. 8/26/14 at 77.)

           Thomas testified that at the time of the Robbery, he
     waited outside of the decedent’s house where he could see
     Appellant and Gabriel through the windows in Taylor’s
     apartment. Id. at 124. As he was waiting, Thomas heard two
     (2) gunshots then he went to Appellant’s house where Appellant
     and Gabriel were already located. Id. at 124. Appellant told
     Thomas that he had gotten nothing in the robbery, and later
     admitted shooting decedent and “putting him to sleep”. Id. at
     125, 127. Gabriel testified that subsequent to the robbery
     Appellant said he had to “put decedent down”. Id. at 183.

            The Commonwealth also provided testimony through
     Thomas that he had entered a guilty plea to Murder, Robbery,
     and Conspiracy as related to the decedent and was awaiting
     sentencing. Id. 108 et. seq., see 117, 142-144. Thomas also
     testified that he had a prior conviction for Robbery. Id. Thomas
     testified that [he] hoped that he would receive something less
     than the maximum of 50 to 100 years that could result from his
     plea, by testifying against Appellant. Id. at 153-154. Gabriel
     testified that he had also entered a guilty plea to Third Degree
     Murder and Conspiracy as related to the decedent but that he
     had not been sentenced yet. Id. at 172, 193. Gabriel testified
     that he hoped that he would receive something less than the
     maximum of 40 to 80 years that could result from his plea, by
     testifying against Appellant. Id. at 205-207. The jury was
     instructed with the standard instruction on how to treat
     accomplice testimony as well as how to treat testimony where
     there had been a prior crimin falsi conviction. The jury, as the
     fact finder, had the sole discretion of assessing the credibility of
     witnesses at trial. The finder of fact is free to believe all, part, or
     none of the evidence and to determine the credibility of
     witnesses.     Here, the jury chose to believe Appellant’s co-
     conspirators in tandem with the ballistics evidence and came to
     the conclusion that Appellant was guilty of Second Degree
     Murder. The verdict was not against the weight of the evidence.

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Trial Court Opinion, 9/16/15, at 5-7.

      Based upon our review of the record, we are compelled to agree with

the trial court. Here, the jury was free to believe all, part, or none of the

evidence against Appellant. The jury weighed the evidence, both testimonial

and physical, and concluded Appellant perpetrated the crimes in question.

This determination is not so contrary to the evidence so as to shock one’s

sense of justice. We decline Appellant’s invitation to assume the role of fact-

finder and to reweigh the evidence. Accordingly, we conclude that the trial

court did not abuse its discretion in refusing to grant relief on Appellant’s

challenge to the weight of the evidence.

      In his second issue, Appellant purports to argue that there was

insufficient evidence to support his convictions. Appellant’s Brief at 18-20.

We analyze arguments challenging the sufficiency of the evidence under the

following parameters:

             Our standard when reviewing the sufficiency of the
      evidence is whether the evidence at trial, and all reasonable
      inferences derived therefrom, when viewed in the light most
      favorable to the Commonwealth as verdict-winner, are sufficient
      to establish all elements of the offense beyond a reasonable
      doubt.     We may not weigh the evidence or substitute our
      judgment for that of the fact-finder. Additionally, the evidence
      at trial need not preclude every possibility of innocence, and the
      fact-finder is free to resolve any doubts regarding a defendant’s
      guilt 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. When evaluating the credibility and
      weight of the evidence, the fact-finder is free to believe all, part
      or none of the evidence. For purposes of our review under these


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      principles, we must review the entire record and consider all of
      the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.

2006)).

      Instantly, for the following reasons, Appellant has abandoned any

argument concerning the sufficiency of the evidence. Regarding sufficiency-

of-the-evidence issues, an appellant must specify the elements upon which

the evidence was insufficient in order to preserve the issue for appeal. See

Commonwealth v. Williams, 959 A.2d 1252, 1257–1258 (Pa. Super.

2008) (finding waiver where the appellant failed to specify the elements of

particular   crime   not   proven   by     the   Commonwealth).          See   also

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

claim waived under Williams for failure to specify either in Rule 1925(b)

statement or in argument portion of appellate brief which elements of crimes

were not proven beyond a reasonable doubt).

      Appellant’s    Pa.R.A.P.   1925(b)    statement   presents   the    following

pertinent issue, which fails to specify the elements of the crimes allegedly

not proven by the Commonwealth:

      2. The adjudication of guilt is based upon insufficient evidence
      because it was an unreasonable inference to conclude beyond a
      reasonable doubt that the witnesses were telling the truth where
      there was no physical and scientific evidence linking the
      defendant to the possession of any firearm or to the victim’s
      apartment and where the only witnesses against the defendant


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      were corrupt and polluted sources seeking favorable treatment
      from the Commonwealth.

Pa.R.A.P. 1925(b) Statement (Record Entry 14), 4/21/15, at 1.

      Likewise, Appellant has failed to specify in his appellate brief the

elements of the various crimes that allegedly were not established by the

Commonwealth. Rather, Appellant’s argument consists of citation to general

case law, challenges to the credibility and reliability of the testimony offered

by his co-conspirators, and the lack of physical evidence produced by the

Commonwealth.     Appellant’s Brief at 18-20.    Appellant’s argument for this

issue begins with the following introduction:

            While legally the Commonwealth should be given the
      benefit of all reasonable inferences as the verdict winner such
      deference should not be accorded where the evidence that was
      offered to support the verdict is in contradiction to the physical
      facts and defies human experience. Here the benefit that is to
      be accorded to the Commonwealth rests solely on the credibility
      determinations the jury made as to the truthfulness of the
      testimony of Thomas and Basemy. But such a determination
      was not reasonable because of the absence of physical facts
      corroborating their corrupt and polluted testimony.

Appellant’s Brief at 18-19. Appellant’s argument on this issue ends with the

following summation:

      Furthermore, the Appellant never fled, never concealed himself,
      never threatened another to silent and never displayed any of
      the indicia of guilt or guilty conscious. That the jury would have
      ignored that vital circumstance and credited the evil motives of
      Thomas and Basemy was similarly not reasonable. Since the
      inferences drawn from the testimony as to the credibility of
      Thomas and Basemy were unreasonable and because the jury
      unreasonably inferred the Appellant’s guilt in contradiction to the
      physical facts and in contravention to human experience this


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      verdict is not based upon sufficient evidence and should be
      vacated.

Appellant’s Brief at 19-20.      Consequently, Appellant’s non-specific claim

challenging the sufficiency of the evidence, which fails to state the exact

elements    of   the    particular   crimes      allegedly    not   proven     by   the

Commonwealth, is waived. Williams.

      Moreover, to the extent that Appellant contends that the jury failed to

properly   consider    the   evidence   and      wrongly     credited   the   testimony

presented by the Commonwealth in determining the verdicts, we observe

that a review of the sufficiency of the evidence does not include an

assessment of the credibility of the testimony. Commonwealth v. Wilson,

825 A.2d 710, 713-714 (Pa. Super. 2003). Such a claim is more properly

characterized as a challenge to the weight of the evidence. Id. A challenge

to the weight of the evidence questions which evidence is to be believed.

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).

Indeed, claims challenging the weight of the evidence and sufficiency of the

evidence are clearly distinct. See Commonwealth v. Widmer, 744 A.2d

745 (Pa. 2000) (discussing the distinctions between a claim challenging the

sufficiency of the evidence and a claim that the verdict is against the weight

of the evidence). See also Commonwealth v. Palo, 24 A.3d 1050, 1055

(Pa. Super. 2011) (explaining that the appellant’s “sufficiency” argument

directed entirely to the credibility of the Commonwealth’s chief witness

challenged the weight, not the sufficiency, of the evidence). “A true weight

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of the evidence challenge concedes that sufficient evidence exists to sustain

the    verdict    but    questions     which       evidence   is   to   be   believed.”

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006)

(quoting Commonwealth v. Galindes, 786 A.2d 1004, 1013 (Pa. Super.

2001)).

       Thus, this argument goes to the credibility of the testimony of the

witnesses, and is, therefore, not an attack on the sufficiency of the evidence,

but an allegation regarding the weight it should have been afforded.

Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2011).

Therefore, to the extent that Appellant intermingles his sufficiency argument

with challenges to the jury’s findings pertaining to the credibility of the

witnesses and determination of the weight of the evidence presented, we

observe that we have reviewed a proper challenge to the weight of the

evidence in the first issue presented by Appellant and concluded that no

relief is due.1

       Judgment of sentence affirmed.

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1
  In the event that we had not found Appellant’s attempted challenge to the
sufficiency of the evidence waived and concluded that it presents an
appropriate challenge to the sufficiency of the evidence, we would have
affirmed on the basis of the trial court’s discussion of the issue, which
concludes as follows: “All of the elements of the various crimes for which
[A]ppellant was convicted were established during trial. Thus, this [c]ourt
finds that viewed in a light most favorable to the Commonwealth, there was
sufficient evidence to establish the Appellant as the perpetrator of these
crimes.” Trial Court Opinion, 9/16/15, at 7-9.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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