J-S17011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

HAKIM BLATCH,

                         Appellant                    No. 916 EDA 2016


        Appeal from the Judgment of Sentence of February 17, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0007790-2014
                       and CP-51-CR-0007792-2014


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 12, 2017

      Appellant, Hakim Blatch, appeals from the judgment of sentence

entered on February 17, 2016. We affirm.

      The trial court ably summarized the underlying facts of this case. As

the trial court explained:

        In early January[] 2014, [R.M.] was working as a pizza
        delivery driver. At some point in early January 2014, [R.M.]
        was driving his vehicle when he noticed a woman, later
        identified as Kimberly Cook, walking down the street near
        54th Street and Lansdown Avenue in Philadelphia. [R.M.]
        honked his horn at Cook and pulled over his vehicle to talk
        with her, hoping to exchange phone numbers and meet with
        her later. At this time, Cook identified herself as “Zah.”[fn.1]
        While [R.M.] and Cook were talking and exchanging phone
        numbers, Cook noticed that [R.M.] had an amount of U.S.
        currency on the passenger side floor of his vehicle.

            [fn.1] Cook was also identified as “Zamirah Johnson.”
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       After meeting [R.M.], Cook told [Appellant], her boyfriend,
       about the meeting and asked [Appellant] to rob [R.M.].
       [Appellant] agreed and arranged to have co-defendants
       Quadir Jeffries and Alonzo Wallace aid in the robbery. The
       plan was for Cook to accompany [R.M.] to his house, while
       [Appellant], Wallace, and Jeffries followed in a separate car.
       Cook would then open the door for [Appellant], Wallace[,]
       and Jeffries to enter and rob [R.M.].

       On January 18, 2014, Cook called [R.M.] under the false
       pretense of meeting [R.M.] to have sex. Cook arranged to
       have [R.M.] pick her up near 56th Street and Lansdown
       Avenue later that evening. Cook, [Appellant], Wallace, and
       Jeffries then headed to 56th Street and Lansdown Avenue in
       Jeffries’ car. Also with them was Cook’s friend, Crystal
       Collins. Cook wished to have Collins present with her, as
       Cook did not know [R.M.] and was nervous about meeting
       him alone. [Appellant], Jeffries, and Wallace waited in
       Jeffries’ car around the corner from where [R.M.] was
       waiting while Cook and Collins exited the vehicle and met
       with [R.M.].

       [R.M.] arrived at the corner of 56th Street and Lansdown
       Ave[nue] and waited for approximately 45 minutes before
       Cook arrived, accompanied by Collins. [R.M.] had both
       women get into his car and drove to his apartment on the
       4200 block of North 7th Street in Philadelphia. While [R.M.]
       was driving, Cook was texting [Appellant], providing
       directions as to where [R.M.] was driving and the address at
       which they stopped.

       Upon arriving at [R.M.’s] apartment, [R.M.], Cook, and
       Collins went inside and had a conversation about sex. While
       they were talking, [Appellant], Jeffries, and Wallace arrived
       at [R.M.’s] apartment, finding the outside door locked, and
       [Appellant] texted Cook to tell her to open the door. At this
       time, Cook asked if she could go outside to smoke a
       cigarette, and [R.M.] gave her the keys to his car, telling
       her that he had a lighter inside of it. Cook then went
       downstairs and opened the door for Jeffries and Wallace to
       enter the building and directed them to [R.M.’s] bedroom.
       Jeffries and Wallace entered the building and went upstairs
       while Cook went to the street corner, throwing away


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       [R.M.’s] keys, where she was later joined by Collins.       As
       Collins left the building, [Appellant] entered.

       After letting Cook out of the apartment and watching her go
       down the steps, [R.M.] closed his door, only to reopen it
       and see men rushing up the steps. [R.M.] attempted to
       close his door, but Jeffries and Wallace kicked the door in,
       forcing [R.M.] to the ground. While [R.M.] was on the
       ground, Jeffries and Wallace pistol whipped him with
       handguns while demanding that [R.M.] tell them where the
       money was, and threatening to shoot him. [Appellant]
       joined Jeffries and Wallace while they were beating [R.M.].
       The assailants rummaged through [R.M.’s] room looking for
       cash, and found a cookie tin with marijuana and cash. They
       failed to find the large sum of cash that was in [R.M.’s]
       pocket.

       [M.S.], who lived in the apartment across from [R.M.],
       heard the commotion and opened his door to see what was
       happening. [M.S.] saw two men standing in [R.M.’s] broken
       doorway. Wallace, noticing [M.S.] open the door, turned
       towards [M.S.] and shot at him.         Closing the door as
       Wallace turned, [M.S.] ducked and was shot through the
       door, with the bullet striking his left arm. Had [M.S.] not
       ducked, the bullet would have struck [M.S.] in his heart. As
       the three robbers left the apartment building, Jeffries fired a
       shot at a security camera inside the front door.

       Hearing the assailants leave, [R.M.] checked on [M.S.] while
       [M.S.] called the police. Police responded and were let into
       the house by [R.M.]. [M.S.] and [R.M.] were transported to
       Temple University Hospital for medical treatment.

       Police recovered one [nine-millimeter] fired cartridge case
       and one [40 caliber] fired cartridge case from the first floor
       hallway of the home. Police also recovered the video tapes
       of the home surveillance system that covered the front
       entryway into the building. The inside camera appeared to
       be damaged by a gunshot. After his release from the
       hospital, [M.S.] found the [40 caliber] bullet that had struck
       him in his room and gave that bullet to the landlord, who
       turned it over to police.




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        Later [on the night of the shooting], [Appellant], Cook,
        Collins, Wallace, and Jeffries all met at a speakeasy on
        Jackson and Taney Streets. While the group was together,
        they discussed Wallace shooting [M.S.] and Jeffries shooting
        out the camera.      At this time, [Appellant] stated that
        Wallace and Jeffries had already pistol-whipped [R.M.] by
        the time [Appellant] got upstairs. Jeffries gave Collins some
        money at the speakeasy while [Appellant] gave Cook some
        marijuana.

        Police provided the media with a copy of the surveillance
        video, in an effort to get public help in identifying the
        robbers. Deputy Sheriff Martin Samuels, who knew both
        [Appellant] and Jeffries from his time patrolling the area,
        watched the video of the assault and identified [Appellant]
        and Jeffries as two of the perpetrators.         Police also
        conducted an analysis of the phone [R.M.] had used to
        contact Cook, and from that, were able to identify Cook as a
        suspect in the case. Police put Cook’s photo in a photo
        array and showed it to [R.M.], who identified Cook as the
        person he stopped on the street and who set him up for the
        robbery.

        Jeffries was arrested on February 23, 2014. Police made
        several efforts to locate [Appellant] and Cook in February
        and March 2014, but were unable to locate them.
        [Appellant] and Cook were arrested on June 4, 2014.
        Wallace was arrested on June 11, 2014. After her arrest,
        Cook provided a statement to police, detailing her
        involvement in the robbery.           Cook also identified
        [Appellant], Wallace, and Jeffries to police. A cell phone
        tower analysis of the location of [Appellant’s] cell phone on
        the night of the robbery corroborated Cook’s statement to
        the police regarding the events surrounding the robbery.

Trial Court Opinion, 6/15/16, at 2-7 (internal citations and some internal

footnotes omitted).




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        At   docket   number     CP-51-CR-0007792-2014         (hereinafter    “docket

number 7792”), the Commonwealth charged Appellant with a number of

crimes, including aggravated assault against R.M., robbery, and burglary. 1

At docket number CP-51-CR-0007790-2014 (hereinafter “docket number

7790”),      the   Commonwealth       charged    Appellant   with   crimes    including

attempted murder against M.S., aggravated assault against M.S., criminal

conspiracy, and firearms not to be carried without a license.2 Following trial,

the jury found Appellant guilty of aggravated assault, robbery, and burglary

at docket number 7792 and aggravated assault, criminal conspiracy, and

firearms not to be carried without a license at docket number 7790.                The

jury found Appellant not guilty of attempted murder at the latter docket

number. On February 17, 2016, the trial court sentenced Appellant to serve

an aggregate term of 23 to 46 years in prison for the above convictions.

        On February 23, 2016, Appellant filed a timely post-sentence motion

at docket number 7792.          Appellant did not file a post-sentence motion at

docket number 7790.3 Even though Appellant did not file a post-sentence

motion at docket number 7790, within Appellant’s post-sentence motion filed

____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1), 3701(a)(1)(ii), and 3502(a)(1), respectively.
2
    18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 903, and 6106(a)(1), respectively.
3
 Further, we note that Appellant’s post-sentence motion only listed docket
number 7792 in the caption. See Appellant’s Post-Sentence Motion at
Docket Number 7792, 2/25/16, at 1.



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at docket number 7792, Appellant raised a number of claims that were only

relevant to his convictions at docket number 7790, including claims that his

convictions for possessing a firearm and criminal conspiracy were against

the weight of the evidence.     Appellant’s Post-Sentence Motion at Docket

Number 7792, 2/25/16, at 1-2.       The trial court denied Appellant’s post-

sentence motion on April 4, 2016 and Appellant filed timely notices of appeal

at both docket numbers. Appellant raises two claims on appeal:

        1. Whether the verdict is against the weight of the credible
        evidence where there is insufficient evidence to establish
        that [Appellant] possessed a firearm during the commission
        of the alleged crime[?]

        2. Whether the verdict is against the weight of the evidence
        where the evidence does not support a verdict of guilt on
        the charge of conspiracy[?]

Appellant’s Brief at 4.

      Appellant’s claims are meritless.

      An appellant must preserve his weight of the evidence claim by raising

the claim before the trial court. Commonwealth v. Sherwood, 982 A.2d

483, 494 (Pa. 2009); Pa.R.Crim.P. 607(A).        One may not challenge the

weight of the evidence for the first time on appeal. Sherwood, 982 A.2d at

494. As the Sherwood Court declared:

        A claim that the verdict was against the weight of the
        evidence shall be raised with the trial judge in a motion for
        a new trial: (1) orally, on the record, at any time before
        sentencing; (2) by written motion at any time before
        sentencing; or (3) in a post-sentence motion. The purpose
        of this rule is to make it clear that a challenge to the weight



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        of the evidence must be raised with the trial judge or it will
        be waived.

Id. at 494 n.22 (internal quotations and citations omitted).

      Both of Appellant’s claims challenge the weight of the evidence

surrounding his convictions at docket number 7790. However, Appellant did

not file a post-sentence motion at docket number 7790. Further, Appellant

did not orally challenge the weight of the evidence to the trial court.

Therefore, it is probable that Appellant has waived his current weight of the

evidence claims. C.f. Pa.R.A.P. 341 note (“[w]here [] one or more orders

resolves issues arising on more than one docket or relating to more than one

judgment, separate notices of appeal must be filed.       Commonwealth v.

C.M.K., 932 A.2d 111, 113 and n.3 (Pa. Super. 2007) (quashing appeal

taken by single notice of appeal from order on remand for consideration

under Pa.R.Crim.P. 607 of two persons’ judgments of sentence)”).

      Since Appellant did not raise the issues regarding his convictions at

docket number 7790 in the post-sentence motion filed at docket number

7792, we will not decide the case based upon waiver.           However, even if

Appellant preserved his weight of the evidence claims, the claims are

meritless. Our Supreme Court has held:

        a verdict is against the weight of the evidence only when
        the jury’s verdict is so contrary to the evidence as to shock
        one’s sense of justice. It is well established that a weight of
        the evidence claim is addressed to the discretion of the trial
        court. A new trial should not be granted because of a mere
        conflict in the testimony or because the judge on the same
        facts would have arrived at a different conclusion. Rather,
        the role of the trial court is to determine that


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        notwithstanding all the evidence, 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. A motion for a
        new trial on the grounds that the verdict is contrary to the
        weight of the evidence concedes that there is sufficient
        evidence to sustain the verdict; thus the trial court is under
        no obligation to view the evidence in the light most
        favorable to the verdict winner.

        Significantly, in a challenge to the weight of the evidence,
        the function of an appellate court on appeal is to review the
        trial court’s exercise of discretion based upon a review of
        the record, rather than to consider de novo the underlying
        question of the weight of the evidence. In determining
        whether this standard has been met, appellate review is
        limited to whether the trial judge’s discretion was properly
        exercised, and relief will only be granted where the facts
        and inferences of record disclose a palpable abuse of
        discretion. It is for this reason that 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. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

quotations and citations omitted). “An abuse of discretion is not merely an

error of judgment, but is rather the overriding or misapplication of the law,

or the exercise of judgment that is manifestly unreasonable, or the result of

bias, prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (internal

quotations and citations omitted).

     According to Appellant, his conviction for possession of a firearm was

against the weight of the evidence because “Appellant was not seen with a

firearm or any type or bulge under his clothes” and his conviction for




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criminal conspiracy was against the weight of the evidence because the

consolidated assault, robbery, and burglary “just kind of happened.” 4

Appellant’s Brief at 12 and 16. Both claims fail. As the trial court explained,

Appellant’s conviction for possession of a firearm was not against the weight

of the evidence:

         At trial, [R.M.] testified that, while being beaten by his
         assailants, he “saw two [guns], but [he was] sure it was
         three.” [N.T. Trial, 12/3/15,] at 220. Since there were only
         three assailants, including [Appellant], and [R.M.] was
         certain that he was being beaten with three guns, a
         reasonable juror had an adequate basis for concluding that
         all three assailants were armed with guns.          Moreover,
         [R.M.’s] conclusion that all three assailants were armed was
         not contradicted and was unchallenged at trial.            In
         particular, none of the three [defense] attorneys asked
         [R.M.] any questions at all regarding his conclusion about
         the presence of three guns. Accordingly, the guilty verdict
         on the firearms charge does not shock [the trial c]ourt’s
         sense of justice, and no relief is due.

Trial Court Opinion, 6/15/16, at 8 (internal footnote and some internal

citations omitted).

       Further, the trial court explained, Appellant’s conviction for criminal

conspiracy was not against the weight of the evidence:

____________________________________________


4
  Within the argument section of Appellant’s brief, Appellant seemingly
confuses the concepts of weight of the evidence and sufficiency of the
evidence. See Appellant’s Brief at 10-17. However, since Appellant’s
Pennsylvania Rule of Appellate Procedure 1925(b) statement only preserved
weight of the evidence challenges, Appellant waived any claim that the
evidence was insufficient to support the verdicts. See Appellant’s Rule
1925(b) Statement, 4/25/16, at 1-2; Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not
included in the [Rule 1925(b) s]tatement . . . are waived”).



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        At trial, the Commonwealth presented the video footage
        recovered from three cameras in the area of the front
        doorway and stairway of [R.M.’s] home. As [Appellant]
        asserts, this video depicted [Appellant] entering the home
        approximately [30] seconds after co-defendants Wallace
        and Jeffries entered the building. However, the video also
        shows all three defendants approaching the home from the
        area of the same parked car, and all three defendants, one
        right after the other, running down the stairs from [R.M.’s]
        second floor apartment after the robbery. In [Appellant’s]
        hand, as he flees, is the cookie tin that was stolen from
        [R.M.’s] apartment.       The video also depicts all three
        defendants running at the same time back towards the
        parked car.         Accordingly, contrary to [Appellant’s]
        argument, the video was compelling evidence that
        [Appellant] was guilty of conspiring with Wallace and
        Jeffries, and failed to exculpate him in any manner.

        Moreover, there was additional compelling evidence to
        support [Appellant’s] conspiracy conviction.   Cook, who
        spotted cash in [R.M.’s] car and enlisted [Appellant] to
        execute the robbery, described in vivid detail all of the
        events leading up to, during, and after the robbery,
        including the role of [Appellant] and his co-conspirators.
        Her testimony was substantially corroborated by the cell
        phone tower analysis of [Appellant’s] cell phone, which
        demonstrated that Cook had accurately described the
        movements of the robbers as the events transpired.

        As the video surveillance footage confirms that [Appellant]
        was involved in an conspiracy, and as the charge was amply
        supported by additional, corroborating evidence, the [trial
        c]ourt did not err in denying [Appellant’s] motion for a new
        trial.

Id. at 8-9 (internal citations omitted).

      We agree with the trial court’s cogent analysis and conclude that the

trial court did not abuse its discretion when it denied Appellant’s weight of

the evidence challenges. Therefore, Appellant’s claims on appeal fail.



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     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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