J-S67019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVEN GUILFORD                            :
                                               :
                       Appellant               :   No. 1241 EDA 2017

             Appeal from the Judgment of Sentence June 23, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003279-2012


BEFORE:       OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 04, 2018

        Steven Guilford appeals from the judgment of sentence imposed

following his convictions for possession of a firearm prohibited, carrying a

firearm in public in Philadelphia, possessing an instrument of crime with intent,

and recklessly endangering another person.1 Appellant claims that the verdict

was against the weight of the evidence. We affirm.

        The trial court set forth the history of this case as follows:

        On January 1, 2012, at approximately 2[:00 a.m.], Officer [Pablo]
        Rivera and Officer DeJesus[2] were finishing up with a disturbance
        at the Blue Moon Hotel located at 5105 Westminster Avenue in
        Philadelphia, Pennsylvania. As the two police officers were exiting
        the hotel, facing [s]outhbound from Westminster Avenue, they
        observed three African American males across a park walking
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 6105(a)(1), 6108, 907(a), and 2705, respectively.

2   Officer DeJesus’s first name is not in the certified record.
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     northbound on Ramsey Street. One of the males, who Officer
     Rivera described as “taller with a black baseball hat and facial
     hair,” was walking with his right hand in the air, discharging a
     firearm. Officer Rivera stated that the other two males were
     smaller, clean shaven, and were not wearing baseball hats.

     When the police officers observed the incident, they were standing
     on the steps of the hotel, which were elevated about 4 feet from
     the sidewalk. Officer Rivera stated that the park lights were on at
     the time, as well as street lamps. He explained that he knew the
     taller male with the facial hair and baseball hat was shooting the
     gun because “he heard the sounds and could see the muzzle
     flashes.” Immediately after they observed the incident, both
     officers got into their patrol car and drove around to 400 Ramsey
     Street. Upon [the officers] exiting the patrol car, the two shorter
     males instantly put their hands up and went to a fence. Officer
     Rivera requested that [Appellant] put his hands up, but instead
     he started walking backwards about five feet with his hands to his
     back, and then quickly ran to the park. Officer Rivera attempted
     to chase Appellant to the 4900 block of Reno Street, which was
     full of abandoned buildings, foliage, debris, fencing and clutter,
     but was unable to locate Appellant. Instead, he heard noises,
     “such as stepping on tree branches and leaves.”

     At that time, in response to Officer Rivera’s radio call, other
     officers arrived at the scene and they contained the area, set up
     a perimeter and called the K-9 unit. After the K-9 unit arrived,
     they found Appellant rolled up in an orange construction fence
     near 4944 Reno Street. Once they pulled the dog off of Appellant,
     the officers placed him in handcuffs and walked him out of the
     alley to where Officers Rivera and DeJesus were waiting. They
     immediately identified Appellant as the male who was firing the
     handgun. Although police attempted to search the alley for the
     firearm, “there was so much trash that it was almost impossible
     to find anything.” Southwest Detectives attempted to search the
     alley again at 8[:00 a.m.], but were unable to recover a firearm.

     Detective [James] Horn from Southwest Detectives did, however,
     recover seven 9-millimeter fired cartridge casings from the scene.
     The Firearm Identification Unit (“FIU”) report indicated that of the
     seven cartridge casings that were found, six of them were
     crushed/dented.    Detective Horn testified that this was not
     unusual, as casings were often crushed/dented by cars before
     they are able to hold the scene. The FIU report also indicated,


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        and defense counsel stipulated that Appellant is ineligible to carry
        or possess a firearm under 18 Pa.C.S.[] §6105(b).

Trial Ct. Op., 1/17/18, at 1-3 (citations omitted).

        The trial court also set forth the procedural history of this case.

        On January 1, 2012, Appellant was arrested and charged with
        Possession of a Firearm Prohibited; Carrying a Firearm in Public in
        Philadelphia; Firearms Not to be Carried without a License;[3]
        Possession of an Instrument of Crime with Intent; and Recklessly
        Endangering Another Person. Following a preliminary hearing on
        March 13, 2012, all charges were held for court. On April 29,
        2013, Appellant knowingly and voluntarily waived his right to a
        jury trial and pled not guilty to all charges brought against him.
        That same day, the Honorable Sean F. Kennedy found Appellant
        guilty of Possession of a Firearm Prohibited, Carrying a Firearm in
        Public in Philadelphia, Possession of an Instrument of Crime, and
        Recklessly Endangering Another Person. Appellant was found not
        guilty as to the charge of Firearms Not to be Carried without a
        License.

        On June 23, 2014, the [c]ourt sentenced Appellant to 5 to 10
        years for Possession of a Firearm Prohibited, 1 to 2 years for
        Carrying a Firearm in Public in Philadelphia to run consecutive,
        and no further penalty for Possession of an Instrument of Crime
        and Recklessly Endangering Another Person. The total aggregate
        sentence was 6 to 12 years. The Judge also requested therapy
        and mental health treatment, as well as credit for time served.

        On June 27, 2014, Appellant filed a [counseled] Post-Sentence
        Motion [claiming that the verdict was against the weight of the
        evidence], which was denied by operation of law on October 27,
        2014. On April 27, 2015, [the court docketed Appellant’s first]
        petition for post-conviction relief. On June 17, 2016, the [c]ourt
        appointed David Rudenstein, Esq. to represent Appellant in his
        appeal. Under these circumstances, the newly appointed counsel
        filed an amended petition for post-conviction relief on December
        1, 2016. On March 20, 2017, [Appellant]’s appeal rights were
        reinstated nunc pro tunc. David Rudenstein filed a timely Notice
        of Appeal on behalf of Appellant on April 17, 2017 with the

____________________________________________


3   18 Pa.C.S. § 6106(a)(1).

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       Superior Court of Pennsylvania. On May 22, 2017, Appellant filed
       a concise statement of matters complained of on appeal.

Id. at 3-4 (citations omitted).

       Appellant’s sole issue on appeal states: “Is [Appellant] entitled to a new

trial where, as here, the verdict is not supported by the greater weight of the

evidence?” Appellant’s Brief at 3.

       Appellant argues that the verdict was against the weight of the evidence

because     Officer    Rivera’s    “inherently    unreliable   identification”   lacked

corroboration. Id. at 10. He claims that Officer Rivera had never encountered

Appellant prior to this incident, Appellant was a city block away, the park was

dark, and Officer Rivera was not using any visual aids when making his

observations from across the street.           Id. at 9-10. Appellant adds that no

handgun was recovered and that “there was a complete lack of forensic

ballistics evidence linking [Appellant] to any firearm.” Id. at 10. In support

of his weight claim, Appellant cites to cases discussing the sufficiency of the

evidence.4 Id. at 10-11 (citing Commonwealth v. Karkaria, 625 A.2d 1167

(Pa. 1993), and Commonwealth v. Farquharson, 354 A.2d 545 (Pa.

1976)).    Ultimately, Appellant maintains that the verdict was against the

weight of the evidence and that he should be awarded a new trial.
____________________________________________


4 As discussed in more detail below, cases discussing the sufficiency of the
evidence involve a different standard of review. See Commonwealth v.
Richard, 150 A.3d 504, 516 (Pa. Super 2016) (“[A] challenge to the weight
of the evidence is distinct from a challenge to the sufficiency of the evidence
in that the former concedes that the Commonwealth has produced sufficient
evidence of each element of the crime, ‘but questions which evidence is to be
believed.’” (citation omitted)).

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      Our standard of review regarding challenges to the weight of the

evidence is well-settled:

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well settled that the [fact-finder] is
      free to believe all, part, or none of the evidence and to determine
      the credibility of the witnesses, and a new trial based on a weight
      of the evidence claim is only warranted where the [fact-finder’s]
      verdict is so contrary to the evidence that it shocks one’s sense of
      justice. 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.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation

omitted).

      We have explained that

      [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 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.

Id. (citation omitted).     Further, “[b]ecause 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


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trial judge when reviewing a trial court’s determination that the verdict is

against the weight of the evidence.” Id. (citation omitted). “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. (citation

omitted).

         Furthermore, “[i]t is also well-settled that a defendant must present his

challenge to the weight of the evidence to the trial court for a review in the

first instance either in a post-sentence motion, by written motion before

sentencing, or orally prior to sentencing.” Commonwealth v. Richard, 150

A.3d 504, 516 (Pa. Super 2016) (citations omitted).

         Here, the evidence at trial established that Officer Rivera, accompanied

by Officer DeJesus, observed three black males walking across the park and

towards the officers. N.T. Waiver Trial, 4/29/13, at 14. One of the three

males was taller than the other two, had a beard, and wore a baseball cap,

while the other two were smaller and clean shaven. Id. at 18. The taller

black male, with his right hand up in the air, discharged a firearm. Id. at 14.

Officer Rivera witnessed the incident from across the park, approximately half

a block away. Id at 16. The area was illuminated by street lamps and park

lights.    Id. at 17, 52.   Officer Rivera testified that he knew the male was

shooting a gun because he heard the sounds and saw the muzzle flashes. Id.

at 18.




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       The officers got into their patrol car and drove to where the three males

were. Id. Upon exiting the patrol car, the two smaller males put their hands

up, but the taller male, who Officer Rivera identified as Appellant, retreated

with his hands to his back and took off running. Id. at 19-20. Officer Rivera

chased after Appellant to a location where there were “abandoned buildings[,]

a lot of foliage and debris, fencing, [which was] real cluttered” and was difficult

to walk through. Id. at 21. Other officers arrived and they called the K-9

Unit, which found Appellant under an orange construction fence. Id. at 22,

37. After the officers handcuffed and removed Appellant from the alleyway,

Officers Rivera and DeJesus identified Appellant as the person they saw

discharging the firearm. Id. at 22-23.

       The officers recovered seven nine-millimeter fired cartridge casings from

the scene, which were fired from the same gun. Id. at 45, 53. Although no

gun was recovered, the alleyway into which Appellant ran “was overgrown

with trash, the backs of some of the houses were crumbling, there was rubble,

[and the officers] could have spent a week there looking.”             Id. at 47.

Moreover, at trial, Appellant stipulated that he is ineligible to possess or carry

a firearm. Id. at 54.

       Accordingly, we conclude the trial court did not abuse its discretion. See

Landis, 89 A.3d at 699.5

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5 As noted above, Appellant’s brief seems to conflate claims for weight and
sufficiency of the evidence, as he cites to Karkaria and Farquharson for the



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       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/18




____________________________________________


proposition that a conviction may not be based on “surmise or conjecture.”
See Appellant’s Brief at 10-11. Specifically, Appellant claims that the
“evidence was insufficient to sustain a verdict of guilty due to the lack of
corroborating evidence” to support Officer Rivera’s in-court identification. Id.
at 10. This claim lacks merit because, as this Court has held, an in-court
identification of a defendant “is by itself sufficient to establish the identity
element of that crime.” See Commonwealth v. Johnson, 180 A.3d 474,
478 (Pa. Super. 2018) (citations omitted); see also Commonwealth v.
Wilder, 393 A.2d 927, 928-29 (Pa. Super. 1978) (finding                  positive
identification by police officer sufficient where the officer “observed the
appellant at the scene of the crime with another defendant, with crowbar in
hand, actually prying open the metal grate at the men’s store”).


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