J-S57038-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
                    v.                    :
                                          :
DEVELE LAMAR REID,                        :
                                          :
                  Appellant               :     No. 183 WDA 2016

            Appeal from the Judgment of Sentence March 13, 2014
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0009434-2012

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

MEMORANDUM BY STRASSBURGER, J.:           FILED AUGUST 29, 2016

      Devele Lamar Reid (Appellant) appeals from the judgment of sentence

of an aggregate term of life imprisonment imposed after being convicted of,

inter alia, second-degree murder. We affirm.

      The trial court summarized the facts underlying this conviction as

follows.

            On June 18, 2012, Michael Shearn, his brother, co-
      defendant Brandon Lind, and co-defendant Jon Lee were driving
      around in Lind’s car. Lind was driving, Lee was in the front
      passenger seat, and Shearn was in the back. While they were
      driving, Lee received a phone call.

             Lee told the other occupants of the car that [Appellant]
      wanted to “hit a lick” or commit a robbery. Shearn, Lee, and
      Lind then picked up [D.M.] on the way to Edgewood. [D.M.] was
      sitting behind the driver’s seat. According to Shearn, Lee told
      [D.M.] what [Appellant] wanted to do and [D.M.] agreed to it.

             [Appellant] called Lee again and told Lee where to pick him
      up.   The group then drove to the Swissvale Police Station and

*Retired Senior Judge assigned to the Superior Court.
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     parked, waiting for [Appellant]. When [Appellant] arrived, he
     asked if the others knew of anyone they could hit.           Lind
     suggested a number of people, including the victim, Jordan
     Coyner. Lind and Coyner went to school together. Shearn
     testified that he didn’t know Coyner, but he knew of him, that he
     had “good marijuana” and made good money. He was chosen as
     the target because he was a “drug kingpin.”

            The group then drove to Homewood. [Appellant] got out
     of the car, entered a house, and returned with a firearm. [D.M.]
     identified the weapon as a semi-automatic. Shearn, Lee, and
     [D.M.] were in the back seat. [Appellant] passed the gun to
     Shearn, Lee, and [D.M.] in the back seat. Shearn refused to
     accept the gun. Lee took the gun and pulled down the back of
     the seat to put the gun in the trunk. Meanwhile, Shearn and
     Lind texted [] Coyner from Shearn’s phone. The pair used his
     phone because Lee’s phone was dead, [D.M.’s] was frozen, and
     Lind’s and [Appellant’s] were traceable. Shearn admitted that
     he sent the first text, although he had not previously
     acknowledged texting Coyner at all. The first text to Coyner
     claimed to be from Lee, asking for marijuana. Shearn admitted
     that he didn’t want the call to be traced to him. As they drove,
     [Appellant] told the group about “old licks” to make them more
     comfortable.

           They drove to a cul-de-sac in an area near Robinson
     Township. Lind pointed out Coyner’s house. Lee, [Appellant],
     and [D.M.] got out of the car while Shearn and Lind remained
     inside. Lee removed the gun from the trunk and gave it to
     [Appellant]. [D.M.] was given an Air Soft pellet gun from the
     glove box in the middle console. Lee had no weapon at all.
     [D.M.] testified that Lind dropped them off in front of Coyner’s
     house and drove further down the street. Lee and [D.M.] stood
     at the top of the driveway by the bushes, and [Appellant] went
     behind the house. Neither Lee nor [D.M.] ever entered the
     house. They were acting as lookouts.

           [Lee] and [D.M.] heard a gunshot and saw [Appellant]
     running toward them from the back of the house. All three
     started running toward the car. [D.M.] and Lee climbed into the
     backseat and [Appellant] got into the front. [Appellant] handed
     the gun to Lee, who put it back in the trunk. When the others
     asked what had happened, [Appellant] told them that Coyner’s


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     father had stepped out and that he had shot him in the shoulder.
     (In reality, [Appellant] shot and killed the robbery victim, []
     Coyner). [Appellant] had taken three grams of marijuana and a
     firearm from the house. Shearn deleted the messages on his
     cell phone and Lind smashed the phone, throwing it from the
     car. Shearn admitted that he was afraid of the police tracing it.
     They drove back to Homewood where [Appellant] dropped off
     the gun. They then dropped off [Appellant] in Swissvale and
     returned to Shearn’s father’s house. [D.M.] walked home from
     there.

            [On June 19, 2012, Appellant was arrested charged with
     criminal homicide, robbery, criminal conspiracy, and carrying a
     firearm without a license.] After [Appellant] was arrested, he
     provided a voluntary taped statement to homicide detectives on
     June 19, 2012. The statement was played in [c]ourt during the
     trial. [Appellant] basically reiterates the facts that are stated
     previously but added that when he told the victim to give him
     the money, the victim first said he had no money.           After
     [Appellant] hit him with the gun, the victim said I have money
     but it is upstairs. As the victim went to go inside, he tried to
     shut the door on [Appellant]. As [Appellant] pushed back on the
     door, he stated the gun went off and he ran.

          After concluding the statement to the detectives on June
     19, 2012, [Appellant] was being walked from the Allegheny
     County homicide office to a police car. At that time, a WTAE (an
     ABC affiliate in Pittsburgh) television news camera and
     microphone were thrust at him and he admitted to the shooting
     and apologized. This videotape was played during trial.

          The gun used to shoot [] Coyner was never found. Neither
     [Appellant], Lee nor Lind testified at trial, and none called
     character witnesses.   In closing argument, trial counsel []
     essentially argued for [third-degree murder] rather than a
     [second-degree murder] conviction.

Trial Court Opinion, 4/22/2016, at 5-8 (citations to notes of testimony and

footnotes omitted).




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     Appellant was tried in a joint trial with Lee and Lind. 1   A jury heard

Lee’s case, and the trial court heard the cases of both Lind and Appellant

without a jury.    The trial court found Appellant guilty of second-degree

murder, robbery, criminal conspiracy, and carrying a firearm without a

license. The trial court found Lind guilty of third-degree murder and related

crimes.   The jury found Lee guilty of third-degree murder and related

crimes.

     On March 6, 2014, Appellant was sentenced to an aggregate term of

life imprisonment.    No post-sentence motion or appeals were filed on

Appellant’s behalf, but on March 11, 2015, Appellant filed timely a pro se

PCRA petition.    Appellant’s post-sentence motion and direct appeal rights

were reinstated nunc pro tunc.      Appellant filed a post-sentence motion

challenging the weight of the evidence, with particular reference to the fact

that Appellant’s co-defendants were convicted of third-degree murder while

Appellant was convicted of second-degree murder.         That post-sentence

motion was filed on September 28, 2015, and was denied by operation of

law on January 28, 2016. Appellant timely filed a notice of appeal, and both

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

     On appeal, Appellant argues that his second-degree murder conviction

was against the weight of the evidence under these circumstances.         He


1
  D.M.’s case was transferred to juvenile court. He pled guilty to third-
degree murder, robbery, and criminal conspiracy in exchange for his
testimony against Appellant, Lee, and Lind.

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suggests that all defendants should have been convicted of second-degree

murder or that all defendants should have been convicted of third-degree

murder, and it “shocks one’s sense of justice” otherwise. Appellant’s Brief at

18.

      We consider this argument mindful of our well-settled standard of

review.

      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.
      This type of review is necessitated by the fact that the trial judge
      heard and saw the evidence presented. Simply put, [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 and that a new trial should be
      granted in the interest of justice. 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. Of equal importance is the precept that, [t]he 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. Konias, 136 A.3d 1014, 1022–23 (Pa. Super. 2016)

(internal citations and quotation marks omitted).

      In considering Appellant’s issue, we observe that this Court has

rejected specifically the claim that similarly-situated defendants have to be

convicted of the same crimes or any crimes at all. See Commonwealth v.

Wallace, 817 A.2d 485 (Pa. Super. 2002) (concluding that husband could

be convicted of eight counts of endangering the welfare of children and wife



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could be acquitted of those crimes even though the entire family resided

together and was responsible for maintaining the home because wife had put

forth efforts to clean home and husband made no efforts to do so).

      Moreover, as with all arguments challenging the weight of the

evidence, Appellant acknowledges that his conviction for second-degree

murder was legally sufficient. While Appellant could have been convicted of

third-degree murder, and his co-defendants could have been convicted of

second-degree murder, this was not a requirement. “Consistent verdicts are

not required provided that there is sufficient evidence to support the verdict

reached.” Commonwealth v. Merbah, 411 A.2d 244, 247 (Pa. Super.

1979).

      Further, the trial court offered the following conclusions.

      [T]here is remarkably little dispute about the facts of the crime
      itself, at least as those facts relate to [Appellant]. All of the
      testimony in this case, including the taped statement by
      [Appellant] himself, establishes that [Appellant] wanted to “hit a
      lick.” All of the testimony shows that [Appellant] got out of the
      car and went to the back of Coyner’s house, to an open garage
      door. It is undisputed [Appellant] took the gun with him inside
      the house. All of the testimony establishes that [Appellant] had
      shot someone and that he fled the scene along with two
      lookouts. [Appellant] doesn’t claim he didn’t do the things of
      which he has been accused and convicted, but rather that others
      did the same things. Given the uniformity of the testimony
      about the crimes committed, it is unclear which facts [Appellant]
      would accord greater weight.

Trial Court Opinion, 4/22/2016, at 13.




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      Here, Appellant’s role in this conspiracy was materially different than

his co-conspirators.    He was the one who came up with the idea for a

robbery, secured the weapon, and then actually confronted the victim which

resulted in the victim’s death. Because Appellant cannot demonstrate that

the trial court abused its discretion in concluding that the verdict did not

shock its conscience, he is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016




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