J-S46019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEROME WILLIAMS

                            Appellant                No. 2184 EDA 2015


             Appeal from the Judgment of Sentence April 17, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015556-2013


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                 FILED JULY 26, 2016

        Jerome Williams appeals from the judgment of sentence imposed on

April 17, 2015, in the Court of Common Pleas of Philadelphia County, made

final by the denial of post-sentence motions on June 24, 2015. On January

30, 2015, a jury convicted Williams of third-degree murder, carrying a

firearm in a public place, and possessing the instrument of a crime. 1 The

trial court sentenced Williams to an aggregate term of 25 to 50 years’

imprisonment. This timely appeal followed.2 On appeal, Williams raises the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(c), 6108, and 907(a), respectively.
2
  On July 23, 2015, the trial court ordered Williams to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On August 10, 2015, the trial court granted Williams a continuance allowing
him to file his concise statement after the 21 day period allowed by
(Footnote Continued Next Page)
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following two issues: (1) whether there was sufficient evidence to convict

him of third-degree murder; and (2) whether the verdict was against the

weight of the evidence. After a thorough review of the submissions by the

parties, the certified record, and relevant law, we affirm the judgment of

sentence.

      The trial court described the facts as follows:

      [O]n May 20, 2012, on the 4600 block of North Sydenham Street
      in Philadelphia, Police Officers Ammounes, McKenna, Ryan and
      Martinson arrived at the scene after receiving numerous calls
      referencing gunshots fired in the area and a male ‘down’. (N.T.
      1-21-15, pp. 29-33, 51-55). The officers found Shanik Gantt
      bleeding on the sidewalk. The officers scooped up Gantt and took
      him to the hospital in their patrol car. Unfortunately, Mr. Gantt
      did not survive his injuries. (N.T. 1-21-15, pp. 29-33). On the
      1600 block of Courtland Street, around the corner from where
      Mr. Gantt collapsed, shell casings were found, along with a
      sneaker near a couple of cars that had been struck by gunfire
      and casings. (N.T. 1-21-15, pp. 54-58).

      Jasmine Clark testified that on the day Gantt was killed she had
      spoken to [Williams] on the phone, that [Williams] admitted to
      having a ‘beef’ with [Sheem], and that [Williams] called Ms.
      Clark and told her “…Shanik is down here. Tell Shanik to stay out
      of it. This beef isn’t with him. It’s with Sheem.” (N.T. 1-22-2015,
      pp.29-30). After the shooting, [Gantt] called Ms. Clark asking for
      help, that he had gotten shot. (N.T. 1-22-2015, pp. 16-17).

      The prosecution also presented Rasheem Graham, a friend of the
      victim, who was with [Gantt] when he was killed, and whom the
      state believed was the intended target of the shooting. [Graham]
      testified that shots were fired at them that night on Courtland
      Street. (N.T. 1-26-15, pp. 5-9). In his interview with the police,
      Graham stated that he saw five males, and identified [Williams]
                       _______________________
(Footnote Continued)

Pa.R.A.P. 1925(b). Williams complied with the trial court’s directive, and filed
a concise statement on September 3, 2015.



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       as having a gun, and pointing it in their direction before the
       shooting started. (N.T. 1-26-15, pp. 29-32).

       Renada Council was an eyewitness to the shooting, who told the
       police that she saw [Williams] and several other males from
       when they began following Gantt and Graham. Ms. Council told
       the detectives that Williams “pulled out a gun and started
       shooting as he was walking towards Shanik and Sheem” and
       then [Gantt] pulled out a gun and started shooting back at
       [Williams]. (N.T. 1-22-15, pp. 107-108). [Ms.] Council further
       identified a photograph of [Williams] during her police interview
       adding that Williams was “the person shooting at Shanik when
       he was killed.” (N.T. 1-22-15, p. 123). Ms. Council did not see
       anyone else with a gun that night. (N.T. 1-22-15, p. 142).

       Special Agent William Shute of the Federal Bureau of
       Investigation testified as to the cell site analysis performed in
       this case identifying [Williams]’s cell phone as being in the area
       of the murder on the date and time of the shooting. (N.T. 1-28-
       2015, pp. 71-81).

       Lastly, Detective Dunlap presented video footage of the crime
       scene showing figures running from the scene, and police
       arriving at the scene a few minutes later. (N.T. 1-29-15, pp. 16-
       18).

Trial Court Opinion, 11/19/2015 at 4-5.

       In his first issue, Williams claims that conflicting testimony amounts to

insufficient evidence to prove he was the shooter at the scene of the

murder.3 Williams’s Brief at 9-10. In this regard, Williams’s argument for

insufficiency more resembles one against the weight of the evidence. See

Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013) (argument

directed to credibility challenges weight, not sufficiency of the evidence).
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3
 Williams does not, as in a more traditional sufficiency argument, claim that
an element of third-degree murder is missing from this case. Instead
Williams merely claims he could not be sufficiently identified as the shooter.



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Further, as this Court has held, “a mere conflict in the testimony of the

witnesses does not render the evidence insufficient because it is within the

province of the fact finder to determine the weight to be given to the

testimony to believe all, part, or none of the evidence.” Commonwealth v.

Montini, 712 A.2d 761, 767-768 (Pa. Super. 1998) (quotations and citations

removed).

      We address Williams’s challenge to the weight of the evidence in his

second claim. Nevertheless, to the effect Williams raises a sufficiency claim,

we note:

      The standard of review for claims of insufficient evidence is well-
      settled. With respect to such claims, we consider the evidence in
      the light most favorable to the Commonwealth as verdict winner.
      In that light, we decide if the evidence and all reasonable
      inferences from that evidence are sufficient to establish the
      elements of the offense beyond a reasonable doubt. We keep in
      mind that it was for the trier of fact to determine the weight of
      the evidence and the credibility of the witnesses. The jury was
      free to believe all, part, or none of the evidence. This Court may
      not weigh the evidence or substitute its judgment or that of the
      factfinder.

Commonwealth v. Devries, 112 A.3d 663, 667 (Pa. Super. 2015)

(citations omitted).

      The trial court found:

      Reneda Council and Rasheem Graham were eyewitnesses to the
      shooting, both identifying [Williams] shooting at Graham and
      [Gantt], ultimately causing Shanik Gantt’s death. The medical
      examiner identified the cause of death as multiple gunshot
      wounds and the manner of death homicide. Jasmine Clark
      testified that [Williams] called her immediately before the
      shooting telling her to get her boyfriend (Gantt) out of the area
      because Williams had a ‘beef’ with Graham, not her boyfriend. A

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      cell phone analysis showed that [Williams]’s phone was at the
      scene of the shooting, and a video was presented showing the
      murder.

Trial Court Opinion, 11/19/2015 at 6-7.

      Contrary to Williams’s assertion, both Council and Graham testified to

his identity as the assailant. Accordingly, Williams’s argument against the

sufficiency of the evidence, claiming that conflicting testimony amounts to a

failure to identify him as the shooter, must fail.

      Williams’s second issue presents a direct challenge to the weight of the

evidence. Our standard of review for a challenge to the weight of the

evidence is as follows:

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

         Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         [Commonwealth v.] Brown, 648 A.2d [1177] at 1189
         [(Pa. 1994)]. Because 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 trial judge when
         reviewing a trial court’s determination that the verdict is
         against the weight of the evidence. Commonwealth v.
         Farquharson, [354 A.2d 545] (Pa. 1976). 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.

      [Commonwealth v.]          Widmer,     [744    A.2d   745]   at   753
      (emphasis added).

      This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a

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     challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

        The term “discretion” imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion
        within the framework of the law, and is not exercised for
        the purpose of giving effect to the will of the judge.
        Discretion must be exercised on the foundation of reason,
        as opposed to prejudice, personal motivations, caprice, or
        arbitrary actions. Discretion is abused where the course
        pursued represents not merely an error of judgment, but
        where the judgment is manifestly unreasonable or where
        the law is not applied or where the record shows that the
        action is a result of partiality, prejudice, bias, or ill-will.

     Widmer, [744 A.2d at 753] (quoting Coker v. S.M. Flickinger
     Co., [625 A.2d 1181], 1184-85 [(Pa. 1993)].

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). Additionally,

     The weight of the evidence is a matter exclusively for the finder
     of fact, who is free to believe all, part, or none of the evidence
     and to determine the credibility of the witnesses. A new trial is
     not warranted because of “a mere conflict in the testimony” and
     must have a stronger foundation than a reassessment of the
     credibility of witnesses. Rather, the role of the trial judge is to
     determine that notwithstanding all the facts, 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. On appeal, our
     purview is extremely limited and is confined to whether the trial
     court abused its discretion in finding that the jury verdict did not
     shock one’s conscience. Thus, appellate review of a weight claim
     consists of a review of the trial court’s exercise of discretion, not
     a review of the underlying question of whether the verdict is
     against the weight of the evidence. An appellate court may not
     reverse a verdict unless it is so contrary to the evidence as to
     shock one’s sense of justice.

Commonwealth v. Rosser, ___ A.3d ___ [2016 WL 769485] (Pa. Super.

2016), citing Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super.

2015) (citations omitted).

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      Here, Williams similarly claims that the evidence presented fails to

prove that any one person committed the murder, much less Williams

himself. Williams’s Brief at 12-13. While this Court cannot stand in place of

the fact-finder, we do note that Graham testified that he saw Williams with a

gun pointed in his and Gantt’s direction. N.T., 1/26/2015 at 29. Council also

identified Williams as the person shooting at Gantt when speaking with

detectives. N.T., 1/22/2015 at 123. We agree with the trial court that “the

jury, as fact-finder was entitled to believe what evidence they deemed

appropriate. The verdict, in this case, was not so contrary to the evidence as

to shock one’s sense of justice[.]” Trial Court Opinion, 11/19/2015 at 7.

      Accordingly, because Williams could reasonably be identified as the

shooter by the jury, and because we can find no abuse of discretion by the

trial court, we affirm the trial court’s judgment of sentence of 25 to 50 years’

imprisonment for third degree murder and related charges.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




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