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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

BRANDON PALMER,

                          Appellant                 No. 1577 WDA 2014


             Appeal from the Judgment of Sentence April 10, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016923-2012


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 26, 2016

       Brandon Palmer appeals from the judgment of sentence of life

imprisonment that the trial court imposed after it found Appellant guilty at a

nonjury trial of first-degree murder and carrying an unlicensed firearm. We

affirm.

       The offenses in question arose from the shooting death of Larry Wheat

on August 10, 2010, in the Hill District area of Pittsburgh. At approximately

8:00 p.m. on the date in question, Pittsburgh Police Officer Brian Schmitt

was on routine patrol in Elmore Square, a public housing complex, when a

number of people began to scream that someone had been shot in the

courtyard. When Officer Schmitt arrived at the courtyard, he observed Mr.




*
    Retired Senior Judge assigned to the Superior Court.
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Wheat lying face down and unresponsive.           He had died from multiple

gunshots to the torso.

      There were two eyewitnesses to the events, Ronald Burton and Denise

Hayden.      Mr. Burton had known the victim for over fifteen years and

Appellant for over ten years. Mr. Burton reported at trial that he never had

any disputes with Appellant until the day before the shooting, August 9,

2010, when Appellant had fired six or seven shots at Mr. Burton. The shots

missed Mr. Burton, who did not notify police but who noticed that Appellant’s

hair was in small braids or plats.

      On the night of the shooting, Mr. Burton was outside the apartments of

Elmore Square talking with the victim when Mr. Burton decided to go to buy

cigarettes. As he was leaving Mr. Wheat, who was talking on the telephone,

Mr. Burton saw Appellant walking in the victim’s direction. Mr. Burton then

heard two shots, turned around, and saw the victim with his hands in the air

while Appellant was holding a gun.          Mr. Wheat fell to the ground and

attempted to crawl away but Appellant fired about five more shots into his

body. Appellant then fled.

      Mr. Burton said that Appellant was wearing a mask that covered his

mouth, nose, and cheeks, but Mr. Burton was positive that Appellant was the

shooter for various reasons.         Appellant was wearing the same all-black

clothing that he had worn the previous day and had the same distinctive

hairstyle.   Mr. Burton also knew Appellant was the perpetrator since Mr.

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Burton was familiar with Appellant’s build, body structure, mannerisms, and

how he walked and ran.

      On August 14, 2010, Pittsburgh Homicide Detective James McGee

showed Mr. Burton a photographic array containing Appellant’s picture. Mr.

Burton identified Appellant as the shooter and wrote down on that

photograph that he saw Appellant shoot Mr. Wheat.

      Ms. Hayden lived in Elmore Square and had known Appellant and the

victim for many years.     She said that the victim’s street name was Bump

Bump. She was walking outside in the housing complex on the night of the

shooting when she observed Mr. Wheat speaking on his telephone and

Appellant run past her with his arm raised holding a gun. Ms. Hayden said

that Appellant was not wearing a mask and that he was dressed in black

with his hair in plats. The victim started to run while Appellant fired three

shots at him. After the victim went around a wall, Ms. Hayden heard four

more shots. Appellant fled and entered a black Cadillac, which drove away.

Ms. Hayden initially refused to cooperate with police, but was later

interviewed by them.      Police showed her a photographic array containing

Appellant’s picture.    She identified Appellant as Mr. Wheat’s shooter and

wrote on Appellant’s photograph, “This is who I saw shoot Bump Bump.”

N.T, 1/10/14, at 435.

      Based on this proof, the trial court, sitting as factfinder, adjudicated

Appellant guilty of first-degree murder and a firearms offense. This appeal

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followed denial of Appellant’s post-sentence motion claiming that the verdict

was against the weight of the evidence. Appellant raises these questions for

our review:

            1. Did the trial court err when it permitted the
      Commonwealth to present evidence, in its case in chief, of the
      fact that Appellant Palmer had, purportedly, fired a gunshot at
      one of the two key prosecution witness (a man named Ronald
      Burton) on the day before the decedent was shot and killed?

             2. Did the trial court err when it denied Appellant Palmer's
      authorized nunc pro tunc post-sentence motion seeking a new
      trial (this being a case that hinged upon the testimony of two
      putative identification witnesses the first of whom claimed that
      he could, from a distance of between 60 and 120 feet, identify
      Appellant as being the masked man who shot the decedent to
      death, and the second of whom claimed that she, with-out the
      eyeglasses she needed to be able to see a large photographic
      image projected onto a courtroom display screen, saw Appellant,
      unmasked, brandishing a firearm and running towards the sight
      of the shooting moments before shots were fired)?

Appellant’s brief at 6.

      Appellant’s first issue concerns the fact that Mr. Burton was permitted

to testify that Appellant had shot at him the day before Appellant killed Mr.

Wheat.     Appellant claims that the evidence in question constituted

inadmissible prior bad acts evidence. Appellant’s brief at 28. We first note

that, “admissibility of evidence is a matter for the discretion of the trial court

and a ruling thereon will be reversed on appeal only upon a showing that the

trial court committed an abuse of discretion.”             Commonwealth v.

Poplawski, No. 654 CAP, 2015 WL 9485200, at *13 (Pa. Dec. 29, 2015).




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       Pa.R.E. 404(b)(1) states, “Evidence of a crime, wrong, or other act is

not admissible to prove a person's character in order to show that on a

particular occasion the person acted in accordance with the character.”

Pa.R.E. 404(b)(2). Accordingly, “It is settled law in this Commonwealth that

other bad acts evidence is inadmissible to prove a defendant's propensity to

commit crime.” Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa.Super.

2014).    However, “bad acts evidence may be introduced for other limited

purposes, including, but not limited to, establishing motive, opportunity,

intent, preparation, plan, knowledge, identity or absence of mistake or

accident, common scheme or design, modus operandi, and the natural

history of the case.” Id.; see Pa.R.E. 404(b)(2) (evidence of prior bad acts

“may     be   admissible   for   another   purpose,   such   as   proving   motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident”).        In criminal actions, prior bad acts are

admissible “only if the probative value of the evidence outweighs its

potential for unfair prejudice.” Kinard, supra at 284; Pa.R.E. 404(b)(2).

       In this case, the trial court ruled that the evidence in question, which

was that Appellant shot at Mr. Burton the day prior to this shooting wearing

the same clothing and the identical, distinct hairstyle, was permissible since

it related to Appellant’s identity as Mr. Wheat’s shooter.            There is no

apparent abuse of discretion in this ruling. Moreover, the trial court sat as

factfinder in this matter. It was aware that the evidence in question could

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not be used as proof that Appellant had a propensity to commit crimes and

could be used solely to establish Appellant’s identity as the perpetrator of

the crime committed on August 10, 2012.

     We note that, even if inadmissible evidence has been produced at trial

and should have been excluded, a new trial is not necessarily warranted if

the proof was adduced at a nonjury trial.    Commonwealth v. Dent, 837

A.2d 571, 582 (Pa.Super. 2003).     This rule of law is premised upon the

precept that, “trial judges sitting as factfinders in criminal cases are

presumed to ignore prejudicial evidence in reaching a verdict.” Id.

Essentially, the judge is considered to be aware of pertinent evidentiary law

and how to apply it. Id. In this case, the trial court knew of the limited

purpose for which this prior crimes evidence could be used, and its

admission does not constitute grounds for a new trial.       Id.; see also

Commonwealth v. Smith, 97 A.3d 782, 788 (Pa.Super. 2014) (“a trial

court, acting as the finder of fact, is presumed to know the law, ignore

prejudicial statements, and disregard inadmissible evidence”).

     Appellant’s second and final complaint is that the verdict was against

the weight of the evidence in that the two eyewitnesses were not credible

and contradicted each other.    When we review a weight-of-the-evidence

challenge, we do not actually examine the underlying question; instead, we

examine the trial court’s exercise of discretion in resolving the challenge.

Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015). This type

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of review is necessitated by the fact that the trial judge heard and saw the

evidence presented. Id. Simply put, “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.” Id. at 82. A new trial is

warranted in this context only when the verdict is “so contrary to the

evidence that it shocks one’s sense of justice and the award of a new trial is

imperative so that right may be given another opportunity to prevail.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014).

      Herein, the trial court, sitting as factfinder, specifically found “that

Ronald Burton and Denise Hayden were credible witnesses” and noted that

this credibility determination was “supported by the evidence of record.”

Trial Court Opinion, 3/18/15, at 29.        It considered Appellant’s present

challenges, which relate to inconsistencies in their testimony and prior

statements to police, to be inconsequential. Id.

      It is well-established that “The finder of fact . . . exclusively weighs the

evidence, assesses the credibility of witnesses, and may choose to believe

all, part, or none of the evidence. Commonwealth v. Sanchez, 36 A.3d

24, 39 (Pa. 2011); see also Commonwealth v. Page, 59 A.3d 1118, 1130

(Pa.Super. 2013) (“A determination of credibility lies solely within the

province of the factfinder.”); Commonwealth v. Blackham, 909 A.2d 315,

320 (Pa.Super. 2006) (“The weight of the evidence is exclusively for the

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finder of fact, which is free to believe all, part, or none of the evidence, and

to assess the credibility of the witnesses. . . .   It is not for this Court to

overturn the credibility determinations of the fact-finder.”).   Our Supreme

Court has further articulated, on numerous occasions, that: “Issues of

witness credibility include questions of inconsistent testimony[.]”        E.g.

Sanchez, supra at 39. Accordingly, we conclude that the trial court did not

abuse its discretion in rejecting Appellant’s challenge to the weight of the

evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2016




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