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NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                   v.                  :
                                       :
JERMAINE SMITH,                        :          No. 2791 EDA 2012
                                       :
                        Appellant      :


         Appeal from the Judgment of Sentence, September 18, 2012,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0009568-2010


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:         FILED AUGUST 11, 2014

     Jermaine    Smith    appeals   from   the   judgment   of   sentence   of

September 18, 2012, following his conviction of first-degree murder and



     On the evening of November 13, 2009, appellant, also known as




identified appellant as the shooter. In addition, Thomas




attempted to drive away but crashed his van and was declared dead at the

scene.   At trial, both Broady and Spence recanted and refused to identify


* Retired Senior Judge assigned to the Superior Court.
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appellant as the shooter.      The Commonwealth was permitted to introduce



hearing testimony, as substantive evidence of appe

     Following a jury trial, appellant was found guilty of murder in the first

degree and PIC. Appellant received a sentence of life imprisonment without

parole   for    first-degree   murder,    and   no    further   penalty   for   PIC.

Post-sentence motions were denied, and this timely appeal followed.

Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; however, we

are without the benefit of a trial court opinion since the trial judge who

                                                                     Temin, is no

longer on the bench.




post sentence motion for a new trial on the grounds that the verdicts of

guilty as to first degree murder and [PIC] were against the weight of the



                    A weight of the evidence claim concedes
                    that the evidence is sufficient to sustain
                    the verdict, but seeks a new trial on the
                    ground that the evidence was so
                    one-sided or so weighted in favor of
                    acquittal that a guilty verdict shocks


               Commonwealth v. Lyons,                Pa.    , 79 A.3d
               1053, 1067 (2013).




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                The     Pennsylvania  Supreme     Court    has
          reiterated the proper standard of review of a weight
          claim as follows:

               A motion for a new trial based on a claim
               that the verdict is against the weight of
               the evidence is addressed to the
               discretion of the trial court. 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,


               facts, certain facts are so clearly of
               greater weight that to ignore them or to
               give them equal weight with all the facts



               contrary to the evidence as to shock

               new trial is imperative so that right may



               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.
                     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


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                     trial judge when reviewing a

                     that the verdict is against the
                     weight of the evidence. One
                     of    the   least    assailable
                     reasons for granting or
                     denying a new trial is the

                     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.

               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 challenge to the weight of the
               evidence is unfettered. In describing the

               have explained:


                     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


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                        action is a result of partiality,
                        prejudice, bias or ill-will.

            Commonwealth v. Clay,                Pa.     , 64 A.3d
            1049, 1054 1055 (2013)             (citations omitted)
            (emphasis in original).

Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014).

                                                 ight claim is hampered by the

fact that there is no trial court opinion on the issue. The trial court denied

                -sentence motions without comment. Nevertheless, we have

no hesitation in concluding that the trial court did not abuse its discretion in



evidence.




Appellant argues that they only gave these statements after prolonged

questioning.   In addition, both Spence and Broady were on probation and



contends that Spence and Broady were coerced into implicating him.

      These were arguments for the jury. As stated above, appellant does

not challenge the admissibility of their prior inconsistent statements under




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the Brady/Lively line of cases.1 Detective Kevin Judge testified that Spence

was permitted to use the bathroom and was provided food and drink.

(Notes of testimony, 9/13/12 at 158.) Detective Judge characterized Broady

as cooperative. (Id. at 171.) Detective Judge specifically denied coercing or

threatening either Broady or Spence.       (Id. at 174.)   Appellant complains

that the interviews were not videotaped; however, Detective Judge

explained that witnesses are not typically videotaped. (Id. at 163.)

      Appellant also points out that police got the names of potential

witnesses, including Broady and Spence, from a confidential informant



regardless of the source, it is undisputed that Broady and Spence were at

the scene and gave statements implicating appellant as the shooter. Broady

stated that he saw appellant shooting into the van through the front

passenger window.     (Notes of testimony, 9/11/12 at 216.)       Broady told

police that he saw appellant turn and tuck a gun into his jacket after the

shooting, and then walk off towards the alleyway next to the Chinese store.

(Id. at 217-218.) Broady also testified at the preliminary hearing that he

saw flashes of gunfire and the van pull away. (Id. at 234.) Appellant was




1
  Commonwealth v. Brady, 507 A.2d 66, 68 (Pa. 1986); Commonwealth
v. Lively, 610 A.2d 7, 9-10 (Pa. 1992); P.R.E. 803.1 (a prior inconsistent
statement may be offered not only to impeach a witness, but also as
substantive evidence if it meets additional requirements of reliability and the
declarant is available for cross-examination).


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standing there and then zipped up his jacket and ran through the alleyway.

(Id.)

        Spence told police that he was sitting in the back of the van when he

heard gunshots and saw flashes coming from the gun. (Notes of testimony,

9/12/12 at 250.) Spence also saw a black jacket. (Id.) After he drove off,

                                               Id.)   After the van crashed a



                         Id.)   Both Spence and Broady were familiar with

appellant and picked out his photograph.

        Appellant argues that police failed to pursue other possible leads and



victim, Nesmith, was a drug dealer with many enemies.          Appellant also

complains that police failed to get a photo identification from an independent

                                         Id.) Wilson was a truck driver and

witnessed the shooting.




trial testimony and credit their previous statements to police, as was their

prerogative. As far as Wilson, he told police he saw a black male wearing a

blue hat and jacket leaning into the passenger side window of the van.

(Notes of testimony, 9/13/12 at 189-190.)      Wilson saw flashes of gunfire.

(Id. at 142.) However, Wilson was driving on the opposite side of the street



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and     was    unable   to     make   an    identification.   (Id.   at   190-191.)

Detective Judge testified that Wilson did not see the shoot                  Id. at

143.)     Detective Judge also testified that he never investigated any other

suspects because the investigation did not lead him anywhere else. (Id. at

192.)

        Finally,   appellant    alleges    that   the   Commonwealth      committed

prosecutorial misconduct during its closing argument by arguing that Spence



22.) Appellant attempts to tie this into his weight of the evidence claim by

arguing that it demonstrates just how weak

that the prosecuting attorney had to resort to such tactics.               However,

appellant concedes that the trial judge gave strong cautionary instructions to

the jury, telling them to disregard any facts not in evidence.            (Notes of

testimony, 9/14/12 at 91, 97.)               Appellant admits that the alleged



at 22.)

        For these reasons, we determine the trial court did not abuse its

                                           ion for a new trial based on the weight



testimony and instead credit their prior statements to police, as well as

                                                  See Commonwealth v. Brown,

52 A.3d 1139 (Pa. 2012) (criminal convictions which rest solely on prior



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inconsistent statements of witnesses who testify at trial do not violate due

process, as long as the prior inconsistent statements, taken as a whole,

establish every element of the offense charged beyond a reasonable doubt,

and the finder-of-fact could reasonably have relied upon them in arriving at




     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2014




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