J-S30009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

COREY GIBBS

                            Appellant                   No. 367 EDA 2014


          Appeal from the Judgment of Sentence September 18, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010054-2012;
                            CP-51-CR-0010056-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED JUNE 05, 2015

        Appellant, Corey Gibbs, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for two (2) counts of first degree murder and one (1) count

each of carrying a firearm without a license, carrying a firearm on public

streets in Philadelphia, and possessing instruments of crime.1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises five issues for our review:

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 6106, 6108, 907, respectively.
J-S30009-15


          DID THE COMMONWEALTH’S FAILURE TO                   DISCLOSE
          BRADY[2]   AND     GIGLIO[3] MATERIALS               DEPRIVE
          APPELLANT OF A FAIR TRIAL?

          DID PROSECUTORIAL COMMENTS LEAD THE JURY TO A
          VERDICT BASED ON EMOTION RATHER THAN ON
          REFLECTIVE JUDGMENT?

          WAS THE ADMISSION OF PHOTOGRAPHS                      OF   THE
          DECEDENTS UNDULY PREJUDICIAL?

          WAS THE EVIDENCE ADDUCED AT TRIAL INSUFFICIENT
          TO SUPPORT CONVICTIONS FOR FIRST DEGREE MURDER?

          WAS THE JURY’S VERDICT AGAINST THE WEIGHT OF THE
          EVIDENCE?

(Appellant’s Brief at ix).

        In his first issue, Appellant asserts the Commonwealth deliberately

withheld witness statements and prosecutor’s notes in violation of Brady

and Giglio.     Specifically, Appellant contends the Commonwealth failed to

produce pretrial statements from Mark Holmes, Valencia Thrones, Denise

Jackson, and Derrick Andrews.             Appellant argues each witness initially

provided exculpatory information to police. Appellant insists, however, the

police subjected the witnesses to “lengthy periods of illegal detention,” which

caused the witnesses to change their stories and incriminate Appellant.

(Appellant’s Brief at 13).        Appellant insists the Commonwealth’s actions

____________________________________________


2
    Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
3
  United States v. Giglio, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104
(1972).



                                           -2-
J-S30009-15


resulted in prejudice, because trial counsel could not adequately prepare to

cross-examine the witnesses or conduct an independent investigation of the

circumstances preceding Appellant’s arrest.         Appellant concludes the

Commonwealth deprived him of a fair trial, and this Court must vacate his

judgment of sentence. Appellant’s claim is waived.

      A concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b), that is not specific enough for the trial court to identify

and address the issue an appellant wishes to raise on appeal can result in

waiver of the issue. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super.

2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007).            “The court’s

review and legal analysis can be fatally impaired when the court has to

guess at the issues raised.” Commonwealth v. Hansley, 24 A.3d 410, 415

(Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011). “Thus,

if a concise statement is too vague, the court may find waiver.” Id. “Even if

the trial court correctly guesses the issues [the appellant] raises on appeal

and writes an opinion pursuant to that supposition, the issue is still waived.”

Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa.Super. 2002), appeal

denied, 573 Pa. 703, 827 A.2d 430 (2003).

      Instantly, Appellant’s Rule 1925(b) statement presented his first issue

as follows: “The Commonwealth’s Failure to Disclose Brady and Giglio

Materials Deprived [Appellant] of a Fair Trial.”          (See Rule 1925(b)

Statement, filed 7/28/14, at 1.) Significantly, Appellant failed to identify the


                                     -3-
J-S30009-15


specific statements and prosecutor’s notes now at issue.4              We conclude

Appellant’s first issue is waived on this basis.            See Reeves, supra;

Heggins, supra.

       In his second, third, fourth, and fifth issues, Appellant challenges the

prosecutor’s closing argument, the admissibility of certain photographs, and

the sufficiency and weight of the evidence. After a thorough review of the

record, the briefs of the parties, the applicable law, and the well-reasoned

opinion of the Honorable Linda A. Carpenter, we conclude Appellant’s

second, third, fourth, and fifth issues merit no relief. The trial court opinion

comprehensively       discusses     and    properly   disposes   of   the   questions

presented. (See Trial Court Opinion, filed August 20, 2014, at 7-16)

(finding: (2) prosecutor’s closing argument constituted fair response to

defense counsel’s closing argument; prosecutor’s remarks did not have

unavoidable effect of prejudicing jury; (3) during direct examination of

medical examiner, court permitted prosecutor to introduce photographs of

victims’ injuries; photographs were relevant to show nature of wounds and

to aid medical examiner in testimony regarding cause of death; court

provided cautionary instruction, explaining purpose of photographs and

reiterating that verdict must be based on rational and fair consideration of all

____________________________________________


4
  The trial court, left to guess the exact nature of Appellant’s claim, analyzed
the pretrial statement from Mr. Holmes only. (See Trial Court Opinion at 4-
6.)



                                           -4-
J-S30009-15


evidence; (4) ample evidence supported verdict; Mr. Holmes saw Appellant

come up Chadwick Street and open fire on victims; although Mr. Holmes

disavowed many averments made in pretrial statement to police, prosecutor

properly    introduced     Mr.   Holmes’       statement   through   testimony   from

detective; Mr. Holmes’ statement amounted to prior inconsistent statement

signed and adopted by declarant; Ms. Thrones and Ms. Jackson corroborated

details from Mr. Holmes’ statement regarding date, time, and location of

shooting, and Appellant’s acts of coming up street and firing handgun;

testimony from Jillian Johnson established that Appellant went to her house

after shooting, acted strange, and appeared to be under influence of

something other than alcohol; Ms. Johnson also testified that Appellant was

upset about being suspect and kept saying, “I don’t think I did it”; medical

examiner opined victims’ deaths were caused by gunshot wounds to vital

body parts; (5) jury was able to assess credibility of each witness; although

witnesses disavowed portions of pretrial statements to police, jury had full

opportunity to evaluate substance of pretrial statements and trial testimony;

verdict did not shock one’s sense of justice). Accordingly, we affirm.5

       Judgment of sentence affirmed.
____________________________________________


5
  Additionally, the Commonwealth has filed a petition “to accept brief
inadvertently filed in excess of word limit.”       In its petition, the
Commonwealth notes its appellate brief exceeds the word limit set forth in
Pa.R.A.P. 2135. Despite this defect, the Commonwealth asks this Court to
accept the brief. We grant the Commonwealth’s petition and accept its brief
as filed.



                                           -5-
J-S30009-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




                          -6-
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         IN THE COURT OF COMMON PLEAS OF PHILADELPHIA                                       COUNTY
                    TRIAL DIVISION - CRIMINAL S.ECTION

                                                                                                F~LED
                                                                                                 AUG 2 0 2014
                                                                                            Criminal Appeals Unit
                                                                                          First Judicial District of PA
COMMONWEAL TH OF PENNSYLVANIA

             v.                                                              CP-51-CR-0010054-2012
                         CP-5i-CR.0010054-201_2_Comm.   v. Gibbs. Corey      CP-51-CR-0010056-2012
                                            Op1mon
COREY GIBBS


                              il\1111111 Ill Ill"
                                    7188766391
                                                            III
                                                 OPINION

CARPENTER, J.                                                                            August 20. 2014

       Defendant Corey Gibbs ("Gibbs") was charged with and found guilty of 2 counts

of Murder of the First Degree (H1 ), Carrying Firearms Without a License ("VUFA §

6106") (F3), Carrying Firearms on Public Property in Philadelphia ("VUFA § 6108")

(M1), and Possession of Instrument of Crime ("PIC") (M1) on bills of information CP-51-

CR-0010054-2012 and CP-51-CR-0010056-2012.                                These charges arose from the

shooting deaths of Robert Alvin and Michael Butler on March 10, 2012 on the 1600

block of Susquehanna Avenue in the City of Philadelphia.                        This court requests that the

Superior Court uphold the convictions and affirm the sentence imposed in this matter.




PROCEDURAL HISTORY

      On September    10, 2013, Gibbs elected to exercise his right to a jury trial and

pied not guilty to the above listed charges.                  On September 18, 2013, the jury found

Gibbs guilty of the above listed charges after which this court sentenced Gibbs to Life

imprisonment without parole on each of the homicide charges, to run consecutively.                           He
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received no further penalty on the remaining charges.      On September 23, 2013, Gibbs

filed post-sentence motions, which were denied by operation of law on January 21,

2014.

        On January 23, 2014, this court received a Notice of Appeal and on May 8, 2014,

upon completion of the notes of testimony, Gibbs was served an Order directing him to

file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P.

1925(b).    On May 29, 2014, Gibbs filed a Motion to Extend Time to File a 1925(b)

Statement, which this court granted, thereby extending the deadline to July 28, 2014.

On July 28, 2014, this court received Gibbs' 1925(b) response which raised the

following issues on appeal:

   1. The Commonwealth's failure to disclose Brady and Giglio materials
      deprived defendant of a fair trial.

   2. The admission of photographs of the decedents was unduly prejudicial to
      the defense.

   3. Prosecutorial comments led the jury to a verdict based on emotion rather
      than on reflective judgment.

   4. The evidence adduced at trial was not sufficient to support a conviction for
      first degree murder.

   5. The jury's verdict is against the weight of the evidence.



FACTS

        On March 10, 2012, shortly before 11 :00 p.m., Mark Holmes went into the Tex

Lounge II bar, located on the corner of Chadwick Street and Susquehanna Avenue in

the City of Philadelphia. Once inside, he saw defendant Gibbs, Michael Butler

("Butler"), and Robert Alvin ("Rebo") in the back playing pool and taking pi.ctures.

Shortly thereafter, Holmes walked back outside with Rebo and Butler and was standing


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    near the corner where two women - Valencia Thrones and Denise Jackson - were

    smoking.    Both Mr. Holmes and Ms. Thrones saw Gibbs coming up Chadwick Street

    and moments later saw Gibbs shooting a gun in the direction of the corner of Chadwick

    Street and Susquehanna Avenue where everyone was standing.          Gibbs fired

    approximately six shots in total. Ms. Thrones and Ms. Jackson dropped to the ground

    until the gunshots ceased. When they got back up, Ms. Thrones saw Gibbs riding up

    Chadwick Street on a bike. Derrick Andrews had since exited the bar and also saw

    Gibbs riding away while holding a gun in his hand.   Latoyra Rainey, who lived on

    Chadwick Street near the Tex Lounge II bar, also heard the gunshots, which sounded

    like they were fired from the steps of her house. When she ran to her bedroom window,

    she saw one victim already on the ground, the second victim collapse on the ground,

and the gunman riding a bike at the end of her block. Ms. Thrones and Ms. Jackson

observed Butler lying face down on the corner and Rebo lying face down a short

distance up the street. They went back inside the bar to tell the bouncer to call the

police and then they left the area. Mr. Holmes left the area as well.

           Later that evening, Gibbs went to the home of his friend, Jillian Johnson.    Ms.

Johnson had fallen asleep and was awoken when she heard Gibbs outside of her

bedroom door. Gibbs was acting strange and appeared to be under the influence of

something other than alcohol.       Ms. Johnson went downstairs and saw two other men,

who she did not know. standing in her living room. She asked them to leave and then

she went back upstairs with Gibbs. One of the men returned to the front door and said

"Tell him I need that stuff'1 after which Gibbs went upstairs, came back down, met with

the man, and then the man left. Ms. Johnson saw Gibbs again a few days later when


1
    N.T. 9/12/2013 at 96:4.


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    he told her that he was upset that his name was getting thrown into the shootings

    outside of the bar that had happened a few nights earlier and he kept saying "I don't

    think I did it."2 Ms. Jackson also saw Gibbs a few days later when she was sitting

    outside with a group of people and he said that the streets were saying that he "killed

    them people and that the cops was looking for him"3

           Reba sustained three gunshot wounds to the arm, two of which subsequently

    penetrated his chest and Butler sustained a single gunshot wound to the face, which

    penetrated his brain. Each of their deaths was caused by the respective fatal gunshot

wounds. Officer Fox recovered six (6) fired cartridge casings from a property on

Chadwick Street, which were turned over to the firearms examiner. The fired cartridge

casings were .40 caliber and were all fired from the same Glock firearm.



DISCUSSION

Failure to disclose Brady and Giglio materials

          On appeal, Gibbs asserts that the Commonwealth's failure to disclose witness

Mark Holmes' initial interaction with detectives in the Homicide Unit was in violation of

Brady v. Maryland' and thus, deprived           him of a fair trial.    Brady held 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."5      While this court agrees

that the defense was entitled to such information, the Commonwealth's failure to

disclose such information directly was cured by its disclosure at the preliminary hearing

2
    N.T. 9/12/2013 at 114:20-21.
3
  N.T. 9/11/2013 at 162:15-16.
4
  373 U.S. 83 (1963).
5
  Brady v. Maryland, 373 U.S. 83, 87 (1963).

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and this court's permitting the defense to cross-examine the witness at trial regarding

this initial interaction with Homicide detectives.

           During the direct examination of witness Mark Holmes, the prosecutor elicited

testimony from Mr. Holmes and, in the course of the examination, introduced portions of

his July 17, 2012 statement to police.      On cross-examination,   the defense elicited the

following testimony with regard to Mr. Holmes' statement as well as his initial interaction

with the Homicide detectives:

           MR. BORUM:[ ... ] Do you see this statement? It's four pages and there's a
          signature on the bottom with a date and it's in question and answer form.
          You had a chance to look at this, right?
          WITNESS: Yes.
          MR. BORUM: And what the detectives basically did is they purported to
          ask a question and there's a Q for question.
          WITNESS: Right.
          MR. BORUM: And then they wrote down what they claim was your answer
          under A, right?
          WITNESS: Yes.
          MR. BORUM: And there's four pages of that question and answer and
          then your signature appears on this, right?
          WITNESS: Yes.
          MR. BORUM: Well, let me ask you. That first time when you were down
          there and you were locked in the room and you told them that Corey was
          in the bar and multiple detectives talked to you and you told them that, did
          they put that down on a statement like this with with questions and
          answers?
          WITNESS: No.
          MR. BORUM: Did they give you a chance to review it?
          WITNESS: No.
          MR. BORUM: Do you know why they wouldn't put that down on a
          statement?
          WITNESS: Because I was telling the truth.
          MR. BORUM: And do you know why the only reason I found out you were
          down there is because you testified at the preliminary hearing?
          WITNESS: Exactly.
          MR. LIERMANN: Objection to what counsel found out.
          THE COURT: Overruled.6




6
    N. T. 9/10/2013 at 275-276.

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    The defense also elicited the following testimony regarding Mr. Holmes' testimony at the

    preliminary hearing:


          MR. BORUM: So the first time you went down and you were locked in the
          room and you told them what you've told the jury you've said, it was not
           the same detective that took that written statement. That's correct, right?
           WITNESS: No. Yeah, that's correct.
           MR. BORUM: And I'm going on.
                  Question: "And how long did he speak with you?"
                  Answer: "He spoke to me like a good fifteen minutes."
                  Question: "Did he ask you questions about the shooting that
                  happened at the Tax Bar on March tenth of this year?"
                 Answer: "Yes, sir."
                 Next question: "Did you answer those questions?"
                 Answer: "Yes, sir. I told them that. They kept on saying you know
                 who shot them. And I said I don't know who shot Rebo. They was
                 saying you was there. I was there but I didn't see nothing. It was
                 like we got you on camera inside the bar shaking Corey's hand and
                 they kept pinpointing it, saying it was Corey, it was Corey."
          WITNESS: Uh-huh.
          MR. BORUM: "I said it couldn't have been Corey because at the time of
          the shooting Corey was inside the bar." Do you remember testifying to that
          at the preliminary hearing?
          WITNESS: Yes. Yes.
          MR. BORUM: And is that what you told the detectives the first time you
          were locked in the room?
          WITNESS: Yes.
          MR. BORUM: And they didn't put it down on a statement, did they?
          WITNESS: No.
          MR. BO~UM: They didn't have you sign that one, did they?
          WITNESS: They only put what's on the statement what I had lied about at
          the end. Because, you know, once I said I got inside my sister car, that
          was the truth. All the other stuff of me saying that I seen Corey running,
          shooting and doing all of that, all of that was a lie.7

Thus, the jury was able to evaluate the credibility of the witness' statement, his

testimony at the preliminary hearing, as well as his testimony at trial in making its

assessment of the evidence presented. As such, while the Commonwealth's failure to

directly disclose the information concerning Mr. Holmes' initial contact with the Homicide

Unit was improper, the disclosure at the preliminary hearing as well as the opportunity

7
    N.T. 9/10/2013 at 281-283.

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    to cross-examine the witness about such contact at trial prevented defendant Gibbs

    from suffering the prejudice that would result in the denial a fair trial.



    Admission of photographs

          The admission and exclusion of evidence is a matter within the discretion of the

 trial judge and shall only be overturned upon a finding of abuse of discretion.8               As a

 preliminary matter, the trial court must determine that the evidence sought to be

 introduced is relevant, meaning that it "tends to make a fact in issue more or less

 probable."      All relevant evidence is admissible, unless otherwise provided by law;

 however, the court may exclude such evidence if there is a danger that unfair prejudice

will outweigh its probative value.'? "Unfair prejudice" indicates a tendency to suggest

decision on an improper basis or to divert the jury's attention away from its duty of

weighing the evidence impartially."11        The Supreme Court of Pennsylvania emphasized

this balancing test when it established that a trial court should exclude otherwise

relevant evidence if, in the court's judgment, "its probative value for this purpose is

outweighed by the danger that it will stir such passion in the jury as to sweep them

beyond a rational consideration of guilt or innocence of the crime on trial."12

          In the instant matter, Gibbs avers that the admission of photographs of the

decedents was unduly prejudicial to the defense.             This court disagrees.      During the

direct examination of the medical examiner, Dr. Collins, this court permitted the

prosecutor to introduce Exhibits 21 and 22 which included Dr. Collins' photographs that

8
   Com. v. Vandivner, 962 A.2d 1170, 79 {Pa. 2009}.
II
   Pa.R.E 401; Com. v. Mitchell, 902 A.2d 430, 465 (Pa. 2006).
10
    Pa.R.E. 402; Pa.R.E. 403; Com. v. Mitchell, 902 A.2d 430, 465 (Pa. 2006).
II
    Pa.RE. 403 cmt.
12 Com. v. Ulatoski, 371 A.2d 186, 192 (Pa. 1977) (citing J. McCormick, Evidence§ 190, at 453-54 (2d

ed. 1972).

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 portrayed the injuries sustained        by the victims, Michael Butler and Robert Alvin,

 respectively.      The photographs were relevant to show the nature of the wounds and to

 aid Dr. Collins in his testimony as to his examination of the bodies and his conclusions

 regarding the cause and manner of death of each of the decedents.             Prior to the jury

 seeing the photographs, however, this court provided the following instruction:

           THE COURT: I just want to, before I have the District Attorney put some
           photographs up on the screen for Dr. Collins to tell you about, I want to let
           you know that the photographs that are going to be admitted into evidence
           are admitted for the purpose of showing to you the nature of the wounds
           that were received by the deceaseds in this case, Mr. Alvin and Mr. Butler.
           Now, I want to let you know that they may not be pleasant photographs to
           look at. You should not let this stir up in you any emotions to the prejudice
           of the defendant. Remember, your verdict must be based on a rational
           and fair consideration of all the evidence and not on any passion or
           prejudice against the defendant, the Commonwealth or anyone else
           connected to the case. The photographs, again, are only being shown for
           the purpose of showing you the nature of the wounds received.13

The instruction clarified for the jury the purpose of seeing the photographs, such that the

jury could use the photographs in assessing the information provided through the

testimony of Dr. Collins. Moreover, the instruction specifically prohibited the jury from

evaluating the photographs in an emotional manner, thereby ensuring that their

introduction was not unduly prejudicial. In consideration of the relevant purpose of the

photographs and this court's clarifying instruction to the jury, this court has determined

that Gibbs' claim of prejudice lacks merit.



Prosecutor/al misconduct

          Prosecutorial misconduct occurs when a prosecutor intentionally undertakes

actions in order to prejudice the defendant to the point where he has been denied a fair



13
     N.T. 9/12/2013 at 53-54.


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trial." In drawing a distinction between mere error and misconduct, our Superior Court

opined that "[aJ fair trial, of course is not a perfect trial. Errors can and do occur. That is

why our judicial system provides for appellate review to rectify such errors. However,

where the prosecutor's conduct changes from mere error to intentionally subverting the

court process, then a fair trial is denied."15                In assessing a claim of prosecutorial

misconduct, the court must determine whether the unavoidable effect of the

prosecutor's conduct was to prejudice the jury, forming in their minds fixed bias and

hostility towards the accused so as to hinder an objective weighing of the evidence and

impede the rendering of a true verdict.16                    With regard to closing remarks by a

prosecutor, the Pennsylvania Superior Court opined in Commonwealth v. Judy" that:

           [i)t is well settled that a prosecutor has considerable latitude during closing
           arguments and his arguments are fair if they are supported by the
           evidence or use inferences that can reasonably be derived from the
           evidence. Further, prosecutorial misconduct does not take place unless
           the unavoidable effect of the comments at issue was to prejudice the
           jurors by forming in their minds a fixed bias and hostility toward the
           defendant, thus impeding their ability to weigh the evidence objectively
           and render a true verdict."18

The Court further stated that "comments made by a prosecutor must be examined

within the context of defense counsel's conduct. It is well settled that the prosecutor may

fairly respond to points made in the defense closing."19

           On appeal, Gibbs asserts that prosecutorial comments led the jury to a verdict

based on emotion rather than on reflective judgment. Although this court finds that

Gibbs' misconduct claim lacks the requisite specificity and is thus waived, this court has


14
     Com. v. Chmiel, 777 A.2d 459, 464 (Pa. Super. 2001 }.
15   /d.
18   /d.
17
     978 A.2d 1015 (Pa. Super. 2009).
18
     /d. at 1020 (citing Com. v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008)).
19
     Com. v. Judy, 978 A.2d 1015,   1020 (Pa. Super. 2009) (citing Com. v. Chmiel, 889 A.2d 501,   544 (Pa.
2005}).

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chosen to address the issue, based upon a series of objections made in the course of

the prosecutor's closing remarks to the jury. For ease on review, this court has included

the excerpt from the transcript illustrating the objections made during the prosecutor's

closing remarks and this court's response to such objections:

       MR. LIERMANN: Ladies and gentlemen, this is 2013. This is the era of
      the ACLU, the federal government, the Department of Justice, the Internal
      Affairs Division, federal lawsuits, the Innocence Project. Anyone and
      everyone looks into every single case like this. So the days that counsel
      wants you to believe, the movies he wants you to talk about, simply are
      not the case. But what does happen? Now, I don't know where defense
      attomey lives and maybe in Bryn Mawr they don't have to do this, but in
      Bryn Mawr there aren't double murders over PCP and drugs. So I don't
      know where he's from, but in Philly, in a city where four hundred people,
      four hundred people, men, women and children, were murdered last year -
      MR. BORUM: Objection.
      MR. LIERMANN: -- four hundred people, we want those people --
      MR. BORUM: Objection.
      THE COURT: Mr. Liermann, just be mindful of the objection.
      MR. L.IERMANN: Thank you, Your Honor. You cannot expect homicide
     detectives in our city, in our city, to simply act like Dunkin Donuts workers.
     They're not going to simply sit there at their desk twiddling their thumbs
     waiting and hoping that someone comes in and says, yeah, that's the guy
     that ambushed two unarmed men outside in front of a bar full of people
      last night. They're not going to sit there and write down what you say and
     send you on your merry way and hope that someone comes forward.
     That's not real life and for better or for worse, that's not the circumstances
     and the way our city works. What they do i~ they go out. They investi.gate
     and they find out who was out there. It's a bar full of people. There's a
     crowd of people out front. Who was out there? They go out. They find out
     who they are and they bring them in, and you sit. You need to think while
     you're sitting. And what you know is that they can't make you say
     anything, but when you do say something you know that it's going to be
     investigated. It's going to be checked. It's going to be vetted. And it's
     amazing how simple yet effective that is. Because at the end of the day,
     folks, most people, most people have a conscience. And if you see two
     men gunned down for no reason, you don't want that guy getting away
     with it. And ultimately, it's easier downthere, It's easier when you're in the
     safety of the police district. You don't have fourteen people watching your
     every move. You don't have to stare down a cold-blooded murderer who
     now is not armed with a gun, he's armed with a high-powered attorney.
     MR. BORUM: Objection.
     MR. LIERMANN: You don't have to testify in open court, in front of a room
     full of his own people, worrying about going to that neighborhood and what
     the consequences are when they find out in open court that you are a

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           snitch. And. ladies and gentlemen, of course, you also haven't yet walked
           back out to your neighborhood and had someone present you with a copy
           of your statement. Let's talk about that. Where does that come from?
           Those aren't public records. They came from one of two places, this side
           of the table or that side of the table.
           MR. BORUM: Objection. The notes of testimony can be ordered by
           anyone. Objection.                              ·
           THE COURT: Mr. Borum, I'll instruct the jury at the end about your
           objections. I'd just remind you about proper decorum during closings. Mr.
           Liermann, you may continue.
           MR. LIERMANN: Thank you, Your Honor. So the detectives do their work.
           They bring people in to get to the bottom of it, to get to the truth. So let's
           talk about what those witnesses said. Let's start with Mark Holmes.20

 Upon review of the evidence presented at trial and the closing arguments of defense

counsel, this court has determined that the prosecutor's remarks did not constitute

misconduct. The remarks were made in fair response to the defense's portrayal of the

Commonwealth as the wizard in the Wizard of Oz, the defense's intimations of police

misconduct, and the defense's explanation for the witness recantation at trial. As such,

the prosecutor's remarks were proper argument and did not have the unavoidable effect

of prejudicing the jury.



Sufficiency of the evidence

           The standard applied when 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.21 In applying this test, the Superior Court may not weigh

the evidence and substitute its judgment for that of the fact-finder. The facts and

circumstances established by the Commonwealth need not preclude every possibility of


20
     N.T. 9/16/2013 at 45-48.
21
     Com. v. Heberling, 678 A.2d 794, 795 (Pa. Super. 1996) (citing Com. v. Williams, 650 A.2d 420 (Pa.
1994)).

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 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 circumstance. 22 The Commonwealth may

 satisfy its burden of proving an element of the crime beyond a reasonable doubt through

the use of wholly circumstantial evidence. In applying the test, the whole record must

be evaluated and all evidence received must be considered. 23 Additionally, any

challenge to the sufficiency of the evidence must specify the element or elements upon

which the evidence was insufficient; otherwise the claim is waived.24

          On appeal, Gibbs asserts that the evidence was insufficient to support his

convictions for first degree murder. This court disagrees, having found the evidence to

be more than sufficient to support the jury's verdict. At trial, the jury heard testimony

from Mark Holmes, Valencia Thrones, Denis Jackson, Derrick Andrews, Latoyra

Rainey, Jillian Thompson, numerous police officers and detectives, as well as the

medical examiner, Dr. Collins. The testimony of eye-witness Mark Holmes established

that, on the evening of March 10, 2012, he went into the Tex Lounge II bar, located on

the corner of Chadwick Street and Susquehanna Avenue, where he saw Gibbs, Butler,

and Rebo in the back playing pool and taking pictures. Shortly thereafter, Holmes

walked back outside with Rebo and Butler and was standing near the corner where

Valencia Thrones and Denise Jackson were smoking. Mr. Holmes saw Gibbs coming

up Chadwick Street and moments later saw him shooting a gun toward of the corner of

Chadwick Street and Susquehanna Avenue where everyone was standing. Mr. Holmes

identified Gibbs, Rebo, and Butler in his July 17, 2012 statement to police. Although


22   Com. v. Cassidy, 668 A.2d 1143, 1144 {Pa. Super. 1995).
23
     Com. v Valette, 613 A.2d 548, 549 {Pa. 1992).
24
     Com. v. Wiiiiams. 959 A.2d 1252, 1257 (Pa. Super. 2008).

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 Mark Holmes disavowed many of the averments made in his statement to police, his

 signed statement was properly admitted as evidence at trial through the testimony of

 Detective Byard. The statement was admissible for its truth as a prior inconsistent

 statement that was signed and adopted by the declarant.25

           The testimony of eye-witnesses Valencia Thrones and Denise Jackson

 corroborated that of Mark Holmes with regard to the date, time, and location of the

 shooting as well as the actions by Gibbs in coming up Chadwick Street and firing

approximately six shots toward the corner where they were standing. Their testimony

also confirmed that both Reba and Butler had been shot and were lying face down on

the street. Ms. Thrones' testimony further established that Gibbs fled the scene riding

up Chadwick Street on a bike. Ms. Jackson's testimony further established that, a few

days after the shootings, Gibbs knew that the streets were saying that he "killed them

people and that the cops was looking for him"26 Additionally, the collective testimony of

Derrick Andrews and Latoyra Rainey further corroborated that the shots were fired from

Chadwick Street, that two victims were shot, and that Gibbs fled up Chadwick Street on

a bike with a gun in his hand. Ms. Thrones, Ms. Jackson, and Mr. Andrews each

identified Gibbs and Rebo in their respective statements to police. Although Valencia

Thrones and Derrick Andrews disavowed many of the averments made in their

statements to police, their signed statements were properly admitted as evidence at trial

through the respective testimony of Detective Burns and Detective Lucke. Each

statement was admissible for its truth as a prior inconsistent statement that was signed

and adopted by the declarant.27


25
     See Pa.R.E. 803.1(1)(b).
26
     N.T. 9/11/2013 at 162:15-16.
27
     See Pa.R.E. 803.1(1)(b).

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           The testimony of Jillian Johnson established that, following the shootings, Gibbs

 came to her house, was acting strange, and appeared to be under the influence of

 something other than alcohol.      Her testimony also confirmed that a few days after the

 shootings Gibbs was upset that his name was getting thrown into such shootings and

that he kept saying "I don't think I did it."28

           Finally, the testimony of Officer Wolfe, Officer Fox, and the firearms examiner

Anne Marie Barnes, confirmed that six fired cartridge casings were recovered in front of

a property on Chadwick Street and that all six casings were .40 caliber and fired from

the same Glock firearm. Additionally, Dr. Collins' testimony established that Rebo

sustained three gunshot wounds to the arm, two of which subsequently penetrated his

chest and Butler sustained a single gunshot wound to the face, which penetrated his

brain. Each of their deaths was caused by the respective fatal gunshot wounds.

           In consideration of the multiple eye-witness accounts, by individuals who knew

Gibbs, establishing that Gibbs traveled up Chadwick Street and began shooting at a

corner where numerous people were standing and then fled the scene on a bike in

conjunction with the wounds inflicted on the two victims, this court has found that the

evidence supported the jury's finding that Gibbs killed Rebo and Butler with the specific

intent to kill and with malice. As such, this court, in viewing all the evidence admitted at

trial in the light most favorable to the Commonwealth, has determined that the evidence

was sufficient to enable the jury to find, beyond a reasonable doubt, that Gibbs was

guilty of Murder of the First Degree.




28
     N.T. 9/12/2013 at 114:20-21.

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 Weight of the evidence

           The standard of review for a challenge to the weight of evidence is well settled in

 Pennsylvania. The fact finder is the exclusive judge of the weight of evidence, is free to

 believe all, part, or none of the evidence presented, and determines the credibility of the

witnesses.29 An appellate court cannot substitute its judgment for that of the fact

finder.30 A verdict will be reversed and a new trial granted only where the verdict is so

contrary to the evidence as to "shock one's sense of justice. n31 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 come to another conclusion.32 Pennsylvania appellate courts

have repeatedly emphasized that "(o)ne 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."33 Additionally, a challenge to the weight of the evidence

that is too vague to allow the court to identify the issue raised on appeal is deemed to

be waived.34

           On appeal, Gibbs asserts that the verdict was against the weight of the evidence.

This court similarly disagrees with this claim, having found the weight of the evidence to

support the jury's verdict. As discussed at length above, the jury heard testimony from

numerous eye-witnesses and was able to assess each of their credibHityas a witness.

Although Mark Holmes, Valencia Thrones, and Derrick Andrews disavowed portions of

their respective statements to police,· the jury had the full opportunity to evaluate the

substance of the statements as well as their testimony at trial in making the relevant
29
     Com. v. Champney, 832 A.2d 403, 408 (Pa. 2004).
30
     Id.
31
   Com. v. Passmore, 857 A.2d 697, 708 (Pa. Super. 2004).
32
   Thompson v. City of Philadelphia, 493 A.2d 669, 673 (Pa. 1985).
33
   See Com. v. Forbes. 867 A.2d 1268, 1273 (Pa. Super. 2005); See also Com. v. Brown, 648 A.2d 1177
~a. 1994).
 Com. v. Seibert. 799 A.2d 54. 62 (Pa. Super. 2002).

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factual determinations.   Similarly, the jury heard testimony from Latoyra Rainey. Dr.

Collins, and the firearms examiner, all of which corroborated the eye-witnesses'

collective account of the shootings, and the jury was able to assess their credibility. The

jury verdict, reflecting the assessment of all of the evidence presented at trial, was not

so contrary to the evidence presented at trial as to "shock one's sense of justice."

Therefore, this court finds no merit in Gibbs' challenge to the weight of the evidence

presented at trial.



CONCLUSION

       For the reasons set forth in this Opinion, the Superior Court should affirm this

court's admission of evidence, the jury's finding of guilt, and the sentence imposed in

this matter.




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First Judicial Diatrict of Pennsylvania
Honorable Linda A. Carpenter
1418 Criminal Justice Center
1301 Filbert Street
Philadelphia, PA 19107


Commonwealth v. Corey Gibbs
CP-51-CR-001054-2012
CP-51-CR-001056-2012

Date: August 20, 2014


                                      PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing upon the person(s), and in the manner
indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:


Defense Counsel/Party:      Trevan Borum, Esquire
                            Borum, Burke, DiDonato & Vocci LLC
                            1500 JFK Boulevard, Suite 900
                            Philadelphia, PA 19102

Type of Service: ( ) Personal    ( X ) First Class Mail   ( ) Other, please specify:              _


District Attorney:   Hugh J. Burns, Jr., Esq.
                     Philadelphia District Attorney's Office
                     Three South Penn Square
                     Philadelphia, PA 19107 - 3499

Type of Service: ( ) Personal    ( X) First Class Mail    ( ) Other, please specify:              _
