J-S60014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIE SPARROW,

                            Appellant                  No. 2240 EDA 2015


             Appeal from the Judgment of Sentence June 19, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002859-2014


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 25, 2016

       Willie Sparrow (“Appellant”) appeals from the judgment of sentence

imposed after the trial court convicted him of aggravated assault, simple

assault, recklessly endangering another person, possession of a prohibited

firearm, carrying a firearm without a license, carrying a firearm on a public

street, and possessing instruments of crime. After review, we affirm.

       The trial court recounted the factual history, as follows:

             On February 3, 2014, at about 12:00 a.m., Mr. Luis
       Rodriguez and his wife were in the area of the 4300 block of
       North 7th Street in Philadelphia sitting in his car waiting for his
       son to return home when Mr. Rodriguez saw Appellant, someone
       he knew for fourteen or fifteen years, driving north on 7th Street
       with a Hispanic male. Mr. Rodriguez recognized both men
       because they patronized a store Mr. Rodriguez formerly owned.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S60014-16


     After parking the car, Mr. Rodriguez helped his wife down the
     street to their home because the street was snow covered. As
     he and his wife were walking home, Mr. Rodriguez heard gun fire
     and saw Appellant, who he knew by the name “Tall,” and the
     Hispanic male, shooting toward him and his wife from a location
     approximately five houses behind him. One of the bullets struck
     Mr. Rodriguez in his leg.

           After he was shot, Mr. Rodriguez grabbed hold of his car to
     prevent himself from falling. Thereafter, his brother Angel and
     his wife came to his assistance. The police and an ambulance
     arrived shortly thereafter and transported Mr. Rodriguez to a
     nearby hospital, where police interviewed him.         During the
     interview, Mr. Rodriguez told police that he could not identify his
     assailants. However, he admitted at trial that he had lied to the
     police about knowing who shot him because he wanted to take
     care of it himself. After speaking to his brother Angel, who he
     told at the hospital that Tall had shot him, and other members of
     his family, he decided to cooperate with the police.

          Mr. Rodriguez was again interviewed by police on February
     11, 2014. During this interview, he told police that Tall had
     been one of the men he saw shooting at him and also identified
     a photograph of Tall as one of the assailants.

           Mr. Angel Rodriguez confirmed that Mr. Rodriguez told him
     at the hospital that Tall had shot him. Angel added that he
     advised his brother to tell the police who had shot him.

           Philadelphia Police Detective Samuel Gonzales, one of two
     detectives assigned to investigate the shooting, upon learning
     that Appellant had been identified as one of the shooters,
     obtained a search warrant for Appellant’s residence.        The
     execution of the warrant failed to result in the seizure of any
     relevant evidence. After being told by the complainant that
     Appellant drove a white Buick, he obtained information from the
     Pennsylvania Department of Motor Vehicles that a white 1997
     Buick Sedan was registered to Appellant’s sister.

           During the investigation of the incident, police obtained a
     video recording that showed the complainant and his wife in the
     area of 7th and Bristol Streets as well as the car the complainant
     said Appellant was driving.


                                    -2-
J-S60014-16


Trial Court Opinion, 10/19/15, at 2–3 (record references and footnotes

omitted).

      After a bench trial on January 29, 2015, Appellant was found guilty of

the aforementioned offenses.     On June 19, 2015, prior to sentencing and

pursuant    to   Pa.R.Crim.P.   704(B)(4),    Appellant   orally   motioned   for

extraordinary relief arguing, inter alia, that the guilty verdict was against the

weight of the evidence. N.T. (Sentencing), 6/19/15, at 6. The trial court

denied the motion and proceeded to sentence Appellant to an aggregate

term of incarceration of seven and one-half to fifteen years. Appellant filed

a timely notice of appeal, and both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant raises one issue on appeal:

            Did not the trial court err by denying appellant’s motion for
      a new trial, as the verdict was against the weight of the evidence
      where the evidence presented at Appellant’s trial was so
      inconsistent that it did not support the verdict in this matter and
      a new trial was necessary in the interests of justice?

Appellant’s Brief at 3.

      Our standard of review in evaluating a challenge to the weight of the

evidence is well-settled:

      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. Commonwealth v. Widmer, 560 Pa. 308,
      319, 744 A.2d 745, 751–52 (2000); Commonwealth v.
      Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). 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. Widmer, 560 Pa. at 319–20,

                                      -3-
J-S60014-16


      744 A.2d at 752. 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.’” Id. at 320,
      744 A.2d at 752 (citation omitted). It has often been stated that
      “a new trial should be awarded when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail.” Brown, 538 Pa. at 435, 648
      A.2d at 1189.

      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. Brown, 648 A.2d at
            1189.     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, 467
            Pa. 50, 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. Widmer, 560 Pa. at 321–22, 744 A.2d at
            753 (emphasis added).

Commonwealth v. Brown, 134 A.3d 1097, 1103–1104 (Pa. Super. 2016)

(quoting Commonwealth v. Clay, 619 Pa. 423, 431–32, 64 A.3d 1049,

1054–55 (2013)). Furthermore, issues of credibility are left to the trier of

fact. “[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



                                     -4-
J-S60014-16


the evidence.” Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super.

2016) (quoting Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa.

Super. 2010) (citations omitted)).

        Appellant asserts that the weight of the evidence does not support a

finding that he was the person who shot the victim and, in fact, his identity

as the shooter was disproved by the evidence of record. Appellant contends

that the victim’s testimony in identifying him as the perpetrator was wholly

incredible in that the victim’s version of events—that after hearing shots, he

turned around and saw Appellant firing a gun—was refuted by the video

surveillance footage of the area that does not show the victim turning his

head.

        Although Appellant argues that the trial court’s determination that

Appellant directed his gun in the victim’s direction was directly controverted

by the video footage, the trial court, within its province as fact finder,

viewed the video surveillance footage, and concluded that at some juncture,

Appellant, while firing his gun, shot the victim in the leg.       As to the

purported inconsistency between the victim’s statement that he turned

around and saw Appellant and the video footage, the trial court remarked:

“I think he saw him beforehand.” N.T. (Trial), 1/29/15, at 105. Then, at

sentencing, the trial court observed: “[The video] didn’t show the shooting.

The video showed [the victim] basically getting clipped or coming around the




                                     -5-
J-S60014-16


corner before he got clipped because he was limping.”      N.T. (Sentencing),

6/19/15, at 18.

      Finally, the trial court determined that the victim’s identification of

Appellant was believable because:

      [t]he complainant’s identification of Appellant as his assailant
      was credible.     It was predicated on the complainant’s long
      familiarity with Appellant and his clear view of Appellant on the
      night of the incident. Moreover, although the complainant did
      not immediately identify Appellant to police, he promptly
      identified him to his brother on the night of the incident. This
      evidence more than supports the verdict.

Trial Court Opinion, 10/19/15, at 5.

      Upon careful review of the record, including the video footage, we

conclude that Appellant’s claim that the evidence was too speculative and

incredible to support his conviction is meritless. The video footage makes it

difficult to determine the precise moment at which the victim was shot, this

being the point at which the victim says he turned and saw Appellant firing.

Thus, its evidentiary value to rebut the victim’s testimony that he saw

Appellant firing a gun is negligible. Certainly, the footage does not disprove

that Appellant fired his gun in the direction of the victim. Additionally, the

trial court determined that the victim’s identification of Appellant was

believable due to the victim’s long-term familiarity with Appellant and

because the victim promptly identified Appellant as the shooter to his

brother on the night of the crime.




                                       -6-
J-S60014-16


      As noted, we need only assess the trial court’s exercise of discretion

in evaluating whether its decision to give more weight to certain evidence

constitutes a denial of justice. The trial court determined after examining all

of the evidence, that there were no grounds to disturb its credibility findings

or reweigh the evidence. We find no abuse of discretion in the trial court’s

decision that the testimony and evidence presented by the Commonwealth

was credible.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




                                     -7-
