J-S28007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                            v.

JIHAD RAGUEEB BASHIR,

                            Appellant              No. 1313 MDA 2014


              Appeal from the Judgment of Sentence May 1, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR0007373-2012


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 04, 2015

       Jihad Ragueeb Bashir appeals from the judgment of sentence1 of

twenty to forty years imprisonment, which the trial court imposed after a

jury found Appellant guilty of attempted murder and aggravated assault.

We affirm.


____________________________________________


1
  The Commonwealth suggests that Appellant has improperly characterized
the present appeal as an appeal from the judgment of sentence.             It
maintains that Appellant’s “appeal is actually taken from the order denying
post sentence motions.[.]” Commonwealth’s brief at 2. However, “An
appeal from an order denying a post-trial motion is procedurally improper
because a direct appeal in a criminal proceeding lies from the judgment of
sentence.”    Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1
(Pa.Super. 2007). The filing of a post-trial motion postpones the time within
which the defendant must appeal. See Pa.R.Crim.P. 720. Nevertheless, the
direct appeal in a criminal matter is taken from imposition of the judgment
of sentence.
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      Appellant’s convictions arose from the September 6, 2011 shooting of

Antoine Breeland, Sr., who testified as follows. On the night in question, Mr.

Breeland and his aunt were smoking cigarettes outside the home of Mr.

Breeland’s mother on 207 Jefferson Avenue, York. The victim’s aunt entered

the house to use the bathroom, and Mr. Breeland remained outside.           Mr.

Breeland looked to the right, to the left, and again to the right. When he

turned back to look left, Mr. Breeland saw “a guy standing in front of [him].”

N.T.Trial, 1/13-17/14, at 214.

      At that time, the victim’s vision was not impaired, and the man was

ten feet away. Id. 215. Mr. Breeland recognized the person and identified

him at trial as Appellant.    Id. Appellant asked Mr. Breeland where Mr.

Breeland’s nephew “Blizz” was located. Id. at 216. Appellant then “started

fumbling around, . . . pulled out a gun,” and shot Mr. Breeland in the face

with a .357 Magnum. Id. After shooting the victim a single time, Appellant

ran away. Id. at 222.

      Mr.   Breeland   explained   that   he   recognized   Appellant   because

Appellant’s mother had introduced Appellant to Mr. Breeland.        The victim

also saw Appellant two weeks prior to the incident seated in a car. At that

time, Mr. Breeland overheard Appellant telling someone that his name was

Jihad. Id. at 221. Mr. Breeland testified that he did not initially remember

who shot him, but when his memory returned in November, he called his




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mother and told her that Jihad, who was Tanoue’s son, had committed the

crime.

      Eartha, Mr. Breeland’s mother, confirmed that, in November 2011,

while the victim was still hospitalized, he called her on the telephone and

said, “[I] remember now, I know who shot me, and he said Jihad. He said

big Tanoue’s son.” Id. at 324. Mrs. Breeland did not know Jihad but was

acquainted with his mother, whose first name was Tanoue. Mr. Breeland’s

brother Michael also testified that, in November 2011, Mr. Breeland’s

memory of the events of the shooting returned. Id. at 386. The victim also

told Michael that Jihad, Tanoue’s son, was his assailant. Id. at 391-92.

      York Detective Travis Sowers testified that he was the lead detective in

the investigation into the shooting.    After Mr. Breeland returned to his

mother’s home from the hospital and rehabilitation, Detective Sowers visited

him. Detective Sowers testified, “I asked him who shot him. He advised me

Jihad. The next thing I asked, Jihad Bashir? And he said, yes, the one who

lives on South Street.”   Id. at 398.   Detective Sowers told the jury that

Appellant lived with his mother, Tanoue Freeland, at 21 East South Street.

Id. at 398-400.     Five days after this first interview, Detective Sowers

showed Mr. Breeland Appellant’s picture, and “he hit the picture and said

that’s the guy who shot me right there, that’s Tanoue’s son[.]” Id. at 402.




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       Based upon this evidence, a jury convicted Appellant of attempted

murder and aggravated assault graded as a first-degree felony.2 The matter

proceeded to sentencing on May 1, 2014, where the court imposed a twenty

to forty year term of imprisonment as to the attempted murder and no

penalty on aggravated assault since that crime merged for sentencing

purposes.     Appellant filed a post-sentence motion raising a weight-of-the-

evidence challenge. This appeal followed denial of that motion. Appellant

presents the following contention on appeal:

           Was the verdict so contrary to the weight of the evidence
       that the verdict shocks one's sense of justice where the victim
       gave a description of the shooter that never matched Appellant's
       appearance, where the victim testified that the shooter mistook
       the victim for his nephew whom was known by Appellant, where
       the victim gave numerous inconsistent statements, where the
       victim was diagnosed with dementia at the time of the
       identification, and where Appellant presented uncontradicted
       alibi witnesses at trial?

Appellant’s brief at 5. Initially, we observe that an allegation that a guilty

verdict is 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
       [jury] 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
       jury's verdict is so contrary to the evidence that it shocks one's
____________________________________________


2
 We note that this trial was Appellant’s second one; the first jury ended in a
deadlock.



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      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. Tejada, 107 A.3d 788, 795-96 (Pa.Super. 2015)

(citation omitted).

      We note the following. Even though the victim was shot in the face

and suffered from cognitive deficiencies after the shooting, his testimony at

trial was cogent. He remembered many details about the crime, including

the time, the weather, what he was doing, precisely what he was wearing,

and aspects of Appellant’s attire.   N.T. Trial, 1/13-17/14, at 210-24.    Mr.

Breeland also knew his age, where his aunt lived, where his mother lived,

and his condition prior to the shooting. Id.

      Two witnesses, Mr. Breeland’s mother and brother, confirmed that the

victim recalled who perpetrated the crime a couple of months after the

shooting. Mr. Breeland thereafter identified Appellant as the shooter, and he

knew the name of Appellant’s mother and where they lived. The jury was

free to accept Mr. Breeland’s identification of Appellant as the shooter, even

though Mr. Breeland made prior inconsistent statements. The jury likewise

was free to reject the testimony of Appellant’s alibi witnesses.      As our

Supreme Court has observed, “The finder of fact—here, the jury—exclusively

weighs the evidence, assesses the credibility of witnesses, and may choose

to believe all, part, or none of the evidence.   Issues of witness credibility

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include   questions   of   inconsistent   testimony[.]”   Commonwealth       v.

Sanchez, 36 A.3d 24, 39 (Pa. 2011) (citation omitted).

     In light of these principles, we find that the trial court did not palpably

abuse its discretion in rejecting Appellant’s weight-of-the-evidence claim.

The verdict does not shock one’s sense of justice.          Hence, we reject

Appellant’s argument on appeal.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2015




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