J-S83021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 OCTAVIN JONES                          :
                                        :
                   Appellant            :   No. 2638 EDA 2016

           Appeal from the Judgment of Sentence August 8, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005723-2013


BEFORE: GANTMAN, P.J., OLSON and DUBOW, JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 08, 2018

      Appellant, Octavin Jones, appeals from the judgment of sentence

entered on August 8, 2016, as made final by the denial of his post-sentence

motion that same day. We affirm.

      The factual background of this case is as follows. On March 16, 2013,

Appellant sprayed Khaliq Poles (“Poles”) and Niger Connelly (“Connelly”) with

vodka while at the Aura nightclub. Poles and Connelly confronted Appellant

who then called over several of his friends. One of these friends punched

Poles and a fight ensued. Eventually, Poles made it to his vehicle. Appellant

then entered the front passenger seat of a second vehicle and fired multiple

shots at Poles while the vehicle fled the scene. Poles was not struck by the

gunfire.
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        The procedural history of this case is as follows. On March 17, 2016,

the Commonwealth charged Appellant via criminal information with eight

offenses, inter alia, aggravated assault1 and conspiracy to commit aggravated

assault.2 On March 24, 2016, Appellant was convicted of those two offenses.

On August 8, 2016, the trial court sentenced Appellant to an aggregate term

of 7 to 18 years’ imprisonment. After the trial court pronounced the sentence,

Appellant orally moved for a new trial based on the weight of the evidence.

The trial court denied the oral post-sentence motion.          This timely appeal

followed.3

        Appellant presents five issues for our review:

     1. [Was the evidence] insufficient to establish that Appellant
        attempted to cause serious bodily injury to [Poles]?

     2. [Was the evidence] insufficient to establish that Appellant
        conspired to cause serious bodily injury to [Poles]?

     3. Did the [trial] court [abuse its] discretion by denying Appellant’s
        post-sentence motion asserting that [his] conviction for
        aggravated assault was against the weight of the evidence when
        the Commonwealth’s witnesses at trial gave inconsistent
        testimony regarding the identity of the shooter?


1   18 Pa.C.S.A. § 2702(a)(1).

2   18 Pa.C.S.A. §§ 903, 2702.

3 On August 22, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). Appellant did not file a timely concise statement. This
Court, therefore, remanded the case with instructions to file a concise
statement. On February 17, 2017, Appellant filed a concise statement. On
June 28, 2017, the trial court issued its Rule 1925(a) opinion. Appellant
included all of his appellate issues in his concise statement.


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   4. Did the [trial] court [abuse its] discretion by denying Appellant’s
      post-sentence motion asserting that [his] conviction for
      conspiracy to commit aggravated assault was against the weight
      of the evidence when [Appellant’s co-conspirator] was . . .
      acquitted of all charges including conspiracy to commit
      aggravated assault?

   5. Did the [trial] court [abuse its] discretion by sentencing Appellant
      to [7 to 18 years’ imprisonment] when the sentencing guidelines
      called for [five to six years’] incarceration?

Appellant’s Brief at 4-5 (complete capitalization removed).

      Appellant’s first two issues challenge the sufficiency of the evidence.

“The determination of whether sufficient evidence exists to support the verdict

is a question of law; accordingly, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Johnson, 160 A.3d 127,

136 (Pa. 2017) (citation omitted).       In assessing Appellant’s sufficiency

challenge, we must determine “whether viewing all the evidence admitted at

trial in the light most favorable to the [Commonwealth], there is sufficient

evidence to enable the fact-finder to find every element of the crime beyond

a reasonable doubt.”    Commonwealth v. Grays, 167 A.3d 793, 806 (Pa.

Super. 2017) (citation omitted). “[T]he facts and circumstances established

by the Commonwealth need not preclude every possibility of innocence. . . .

[T]he finder of fact while passing upon the credibility of witnesses and the

weight of the evidence produced, is free to believe all, part[,] or none of the

evidence.” Commonwealth v. Waugaman, 167 A.3d 153, 155–156 (Pa.

Super. 2017) (citation omitted).




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         In order to prove the aggravated assault charge, the Commonwealth

was required to show that Appellant (1) attempted to cause serious bodily

injury    to   another   (2)   intentionally,   knowingly,    or   recklessly        under

circumstances manifesting extreme indifference to the value of human life.

18 Pa.C.S.A. § 2702(a)(1).      Appellant contends the evidence was insufficient

to prove that he fired the shots. In other words, he argues that he did not

attempt to cause Poles serious bodily injury. This argument is without merit.

Sergeant David Ayres, an off-duty police officer who witnessed the shooting,

testified that Appellant fired the shots. This evidence alone was sufficient to

prove that Appellant was the person who fired at Poles.

         Appellant cites several cases, including Commonwealth v. Bennett,

303 A.2d 220 (Pa. Super. 1973) and Commonwealth v. Karkaria, 625 A.2d

1167 (Pa. 1993), in support of his argument that contradictory evidence

presented at trial was insufficient to establish guilt. Bennett and Karkaria,

however, are distinguishable from the case at bar.            In Bennett, the only

witness who testified against the defendant continually changed his story and

gave contradictory testimony as to the “essential issues” in the case.

Bennett, 303 A.2d at 221 (citation omitted). Thus, this Court found that the

evidence was insufficient to convict Bennett. In Karkaria, the Commonwealth

relied on the testimony of the complainant. Karkaria, 625 A.2d at 1168 (“The

Commonwealth’s       case-in-chief     rested    upon   the    testimony        of     the

complainant[.]”).    The complainant’s statements and testimony repeatedly



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contradicted each other from the time the investigation began through trial.

Thus, our Supreme Court found that the evidence was insufficient to convict

Karkaria.

      In the case at bar, there were no intra-witness contradictions regarding

Appellant being the shooter. As such, Bennett and Karkaria are inapposite.

Viewed      correctly,   Appellant’s   sufficiency   claim   is   more   accurately

characterized as a challenge to the credibility and believability of the

testimony presented at trial. These challenges are directed at the weight, not

the sufficiency of the evidence. See Commonwealth v. Lopez, 57 A.3d 74,

80-81 (Pa. Super. 2012), appeal denied, 62 A.3d 379 (Pa. 2013). Hence, we

conclude that there was sufficient evidence to convict Appellant of aggravated

assault.

      In his second issue, Appellant argues that the evidence was insufficient

to convict him of conspiracy to commit aggravated assault. In order to convict

a defendant of conspiracy to commit an offense, “the Commonwealth must

establish the defendant: 1) entered into an agreement to commit or aid in an

unlawful act with another person or persons; 2) with a shared criminal intent;

and 3) an overt act was done in furtherance of the conspiracy.”

Commonwealth v. Dantzler, 135 A.3d 1109, 1114 (Pa. Super. 2016) (en

banc) (cleaned up). “[A] conspiracy may be inferred where it is demonstrated

that the relation, conduct, or circumstances of the parties, and the overt acts

of the co-conspirators sufficiently prove the formation of a criminal



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confederation.” Commonwealth. v. Orie Melvin, 103 A.3d 1, 43 (Pa. Super.

2014) (citation omitted).

      In   this   case,   there   was   overwhelming    circumstantial   evidence

supporting Appellant’s conviction for conspiracy to commit aggravated

assault. When Appellant got into a confrontation with Poles and Connelly, he

called his friends over and those friends proceeded to punch Poles. When they

exited the nightclub, Appellant entered the passenger seat of a vehicle. After

Appellant opened fire, the person driving the vehicle immediately sped away

in an attempt to evade detection and/or apprehension. A logical conclusion

from this circumstantial evidence is that Appellant entered into a conspiracy

with the driver of the vehicle to shoot at Poles.

      Appellant’s other arguments related to the sufficiency of the evidence

for the conspiracy conviction are wholly unpersuasive. The exact number of

individuals involved in the conspiracy and whether they were apprehended is

immaterial to proving that a conspiracy existed and that Appellant was a

member of that conspiracy.        Similarly, the identity of every co-conspirator

does not need to be shown in order to prove a conspiracy.           Instead, the

Commonwealth was only required to prove that Appellant entered into a

conspiracy with at least one other person to shoot at Poles. As noted above,

the Commonwealth produced such evidence. Accordingly, there was sufficient

evidence to convict Appellant of conspiracy to commit aggravated assault.




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      In his third and fourth issues, Appellant argues that the trial court

abused its discretion by denying his post-sentence motion based on the weight

of the evidence. “A new trial based on a weight of the evidence claim is only

warranted where the verdict is so contrary to the evidence that it shocks one’s

sense of justice.” Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super.

2017) (cleaned up). “[W]hen an appellate court reviews a weight claim, the

court is reviewing the exercise of discretion by the trial court, not the

underlying question of whether the verdict was against the weight of the

evidence.”   Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017)

(citation omitted).

      Appellant first contends that the aggravated assault conviction was

against the weight of the evidence. He argues that Sergeant Ayres’ testimony

was not credible for several reasons.       First, he notes that an individual

standing next to Sergeant Ayres was unable to identify Appellant as the

shooter so it was impossible for Sergeant Ayres to have positively identified

Appellant. This argument is without merit. Sergeant Ayres, as a trained law

enforcement officer, would naturally focus on the shooter’s physical

characteristics so that he could later identify him.

      Second, Appellant notes that Sergeant Ayres stated that there were six

casings in the parking lot but only five were found. There are many plausible

explanations for this “inconsistency.” One casing may have been kicked or

picked up by a bystander. Sergeant Ayres may have also simply miscounted.



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Either way, it did not affect the core of his testimony – that Appellant was the

shooter.

      Finally, Appellant notes that he was acquitted of possession of a firearm

by a prohibited person and it was not possible for him to fire the rounds if he

did not possess the firearm. As this Court has stated,

      inconsistent verdicts, while often perplexing, are not considered
      mistakes and do not constitute a basis for reversal. Consistency
      in verdicts in criminal cases is not necessary. When an acquittal
      on one count in an [information] is inconsistent with a conviction
      on a second count, the court looks upon the acquittal as no more
      than the jury’s assumption of a power which they had no right to
      exercise, but to which they were disposed through lenity.

Commonwealth v. Barnes, 167 A.3d 110, 120 (Pa. Super. 2017) (en banc)

(citation omitted). In this case, the jury chose not to convict Appellant of

possession of a firearm by a prohibited person as an act of lenity. It does not

indicate that the verdict was against the weight of the evidence.

      The trial court viewed Sergeant Ayres’ testimony and determined that

convicting Appellant, based on that testimony, did not shock its sense of

justice.   This was a reasonable determination in light of the evidence

presented at trial.   Specifically, Poles testified that Appellant entered the

passenger seat of the vehicle parked next to him and that the gunfire came

from that vehicle.      In other words, circumstantial evidence supported

Sergeant Ayres’ testimony. Accordingly, Appellant is not entitled to relief on

his third claim of error.




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      Appellant also argues that his conspiracy conviction was against the

weight of the evidence. First, he contends that the Commonwealth failed to

provide any direct evidence of a conspiracy between Appellant and the driver

of the vehicle. As noted above, however, direct evidence of a conspiracy is

not required for a conspiracy conviction.     Circumstantial evidence alone is

sufficient to prove a conspiracy existed. Orie Melvin, 103 A.3d at 43. As

detailed above, in this case the circumstantial evidence of a conspiracy was

overwhelming.

      Appellant also notes that the driver of the vehicle was acquitted of

conspiracy. Appellant argues that this shows that his conviction for conspiracy

was against the weight of the evidence. This argument lacks merit.          This

Court and our Supreme Court “have held that the acquittal of a defendant’s

sole alleged co-conspirator does not preclude prosecution and conviction of

that defendant on a conspiracy charge.”       Commonwealth v. Fremd, 860

A.2d 515, 521 (Pa. Super. 2004), appeal denied, 889 A.2d 1213 (Pa. 2005)

(collecting cases).    In this case, the trial court determined that the

Commonwealth failed to prove that the driver conspired with Appellant. It

concluded, however, that the jury’s finding that Appellant did conspire with

the driver did not shock its sense of justice. There is nothing inconsistent with

reaching both of these conclusions. Accordingly, we conclude that the trial

court did not abuse its discretion in denying Appellant’s post-sentence motion

with respect to the weight of the evidence.



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      In his final issue, Appellant challenges the discretionary aspects of his

sentence. Pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).

Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

      we must engage in a four part analysis to determine: (1) whether
      the appeal is timely; (2) whether Appellant preserved his [or her]
      issue; (3) whether Appellant’s brief includes a concise statement
      of the reasons relied upon for allowance of appeal with respect to
      the discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the [S]entencing [C]ode.

Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa. Super. 2017)

(citation omitted). Appellant filed a timely notice of appeal, however, he failed

to preserve the issue before the trial court.       He did not object to the

discretionary aspects of his sentence after the trial court announced the

sentence nor did he include a discretionary aspects claim in his oral post-

sentence motion. Accordingly, we do not reach the merits of his discretionary

aspects claim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/18




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