J-S08021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JEREMIAH BUSH

                            Appellant               No. 1731 EDA 2014


           Appeal from the Judgment of Sentence of January 30, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0008142-2012



BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                       FILED FEBRUARY 17, 2015

       Jeremiah Bush appeals the January 30, 2014 judgment of sentence,

which was entered following his jury convictions of first-degree murder,

carrying a concealed firearm without a license, and possessing an instrument

of crime.1     The trial court sentenced Bush to life imprisonment without

parole on the murder conviction, and imposed no further sentences on the

remaining convictions. Before us, Bush challenges both the weight and the

sufficiency of the evidence to sustain his murder conviction. We affirm.

       The learned trial court summarized the factual history of this case as

follows:


____________________________________________


1
       18 Pa.C.S. §§ 2502(a), 6106, and 907, respectively.
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     At trial, the Commonwealth presented the testimony of
     Philadelphia Police Sergeant Steven Crosby, Philadelphia Police
     Detectives Michael Rocks and William Kelhower, Philadelphia
     Police Officers Robert Burrell, Ronald Weitman, Russell
     Seiberlich, and Scott Pollack, Assistant Medical Examiner Dr.
     Edwin Lieberman, as well as Lorna Wall, Clarence Milton, Kalil
     Bell, and Robert Matthews. [Bush] testified on his own behalf.
     Viewed in light most favorable to the Commonwealth as the
     verdict winner, the evidence established the following.

     [Bush], Clarence Milton, and Steven Brown were childhood
     friends who engaged in drug[-]selling activities for several years
     prior to 2006. As part of his drug operation, Steven Brown used
     to provide drugs to Kareem Brown. On March 26, 2006, Steven
     Brown was shot and killed. [Bush] and Milton had conversations
     regarding Steven Brown’s death and street gossip indicated that
     Kareem Brown was the shooter.

     On September 20, 2006, [Bush] attempted to locate Kareem
     Brown, in an attempt to exact revenge for the death of Steven
     Brown. While looking for Kareem Brown, [Bush] encountered
     Kareem Brown’s brother-in-law, the decedent[,] Leary Wall.
     [Bush] demanded [that] Wall tell him where Kareem Brown
     could be found and, when Wall did not or could not tell, [Bush]
     shot him. [Bush] then left the area in a vehicle driven by an
     individual named Qua.

     At approximately 9:45 p.m. that same evening, Philadelphia
     Police Detective Michael Rocks responded to a radio call on the
     2100 block of Dover Street in Philadelphia. Upon arriving at the
     scene, Rocks observed Wall lying on the highway, having been
     shot four times. Wall was transported to Temple University
     Hospital, where he was later pronounced dead. Two bullets were
     recovered from Wall’s body, while seven nine millimeter
     cartridge cases were recovered from the homicide scene. Both
     recovered bullets were fired from the same firearm.

     Some time following Wall’s shooting, an individual by the name
     of “Bum” contacted [Bush’s] friend Milton in order to buy a
     firearm. Milton contacted [Bush], who indicated that he had a
     “dirty” gun to sell. [Bush] indicated that the firearm was “dirty”
     because he had used it to shoot Wall and further detailed the
     circumstances surrounding the shooting. [Bush] subsequently
     sold Bum a black nine millimeter firearm for approximately
     [$500.00].


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     On July 12, 2007, [Bush] was arrested and charged for a
     separate shooting that occurred on September 13, 2006, one
     week prior to the shooting of Wall.        On that date, police
     responded to a reported shooting on the 1900 block of West
     Norris Street in Philadelphia. Upon arriving at the scene, police
     found Amin Payne and Timothy Fontaine, both suffering from
     gunshot wounds. Payne was shot a total of seven times and
     police recovered seven nine millimeter fired cartridge casings.
     Charges against [Bush] were ultimately nolle prossed due to the
     lack of cooperation of the witnesses.

     In 2009, [Bush] was in custody in Delaware County Prison with
     Robert Matthews as a cellmate. At some point, Payne, the
     victim of the September 13, 2006 shooting, was escorted into
     the cell block. [Bush] informed Matthews that he had shot
     Payne seven times “over a beef” using a nine millimeter
     handgun.       Upon noticing [Bush], Payne alerted the prison
     officials and was escorted from the block. At a later time, while
     still in custody, [Bush] told Matthews that he had killed someone
     with the same firearm that he had used to shoot Payne. [Bush]
     thereafter informed Matthews of the circumstances of his
     shooting Wall.

     On July 30, 2010, Kalil Bell, a friend of [Bush], contacted the
     Philadelphia Police through a letter stating that he was willing to
     talk with police.    Detective William Kelhower conducted an
     interview with Bell on February 7, 2011, concerning the death of
     Wall. In this interview, Bell stated that [Bush] had admitted to
     Bell that [Bush] had shot Wall while attempting to locate Kareem
     Brown.

     On September 20, 2010, Mathews [sic] gave a statement to
     police concerning what [Bush] had told him while in custody. On
     November 8, 2011, Clarence Milton, [Bush’s] friend, provided a
     statement to the police indicating that [Bush] confessed to killing
     Wall during their discussion about the sale of the “dirty” gun.
     Subsequent testing confirmed that the seven bullet casings
     recovered from the scene of the homicide matched the seven
     casings recovered a week prior to the homicide from the
     shooting of Payne. An arrest warrant was issued for [Bush] on
     February 6, 2012[,] and [Bush] was taken into custody two days
     later, on February 8, 2012.




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Trial Court Opinion (“T.C.O.”), 9/12/14, at 1-4 (footnotes and citations to

notes of testimony omitted).

      Following a jury trial, Bush was found guilty of the above-listed crimes

and sentenced to life imprisonment without parole on January 30, 2014. On

February 10, 2014, Bush filed a post-sentence motion, which the trial court

denied on May 14, 2014.

      On June 11, 2014, Bush filed a notice of appeal to the this Court, and

the trial court immediately instructed Bush to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bush timely

filed a concise statement on July 2, 2014. On September 12, 2014, the trial

court filed an opinion pursuant to Pa.R.A.P. 1925(a) in response to Bush’s

concise statement.

      Bush raises the following issues on appeal:

      1) Is [Bush] entitled to an arrest of judgment on the charge of
         [m]urder in the [f]irst [d]egree and all related charges where
         there is insufficient evidence to sustain the verdict?

      2) Is [Bush] entitled to a new trial on all charges where the
         verdict on [m]urder in the [f]irst [d]egree and all related
         charges is not supported by the greater weight of the
         evidence?

Brief for Bush at 3.

      In his first issue, Bush generally challenges the sufficiency of the

evidence developed by the Commonwealth to convict him of all charges.

Specifically, he contends that the Commonwealth adduced insufficient

evidence to prove he was the perpetrator of the crimes with which he was


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charged. Id. at 7. However, Bush only addresses the first-degree murder

conviction in his brief. Id. at 8-10. Accordingly, we review the sufficiency of

the evidence only as to that conviction.

      When examining a challenge to the sufficiency of evidence:

      The standard we apply . . . is whether viewing all the evidence
      admitted at trial in the light most favorable to the verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      [the above] test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.           Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).

      In order for a jury to convict Bush of first-degree murder, the

Commonwealth must establish that Bush committed an intentional killing.

18 Pa.C.S. § 2502(a). Intentional killing is defined as “[k]illing by means of

poison, or by lying in wait, or by any other kind of willful, deliberate and

premeditated killing.” 18 Pa.C.S. § 2502(d). “The use of a deadly weapon

on a vital part of the body is sufficient to establish the specific intent to kill.”


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Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007). “The chest and

abdomen house the human body’s chief circulatory and digestive organs, as

well as a network of vital arteries and veins which supply them and, thus,

are vital areas of the body.” Commonwealth v. Briggs, 12 A.3d 291, 307

(Pa. 2011).

       Presently, Bush argues that the Commonwealth failed to prove beyond

a reasonable doubt that he was the perpetrator of the murder.              Brief for

Bush at 7.          Further, Bush argues that multiple witnesses at trial provided

unreliable testimony, which led to his conviction.         Id. at 9.   To that end,

Bush       relies     upon   the   general   principle   that   was    espoused   in

Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), that where the

“evidence presented at trial when carefully reviewed in its entirety, is so

unreliable and contradictory that it is incapable of supporting a verdict of

guilty, and thus, is insufficient as a matter of law.”          Id. at 1172.   Bush

argues generally that the testimony elicited by multiple witnesses at trial

was so unreliable that the evidence was insufficient to support a guilty

verdict.      Brief for Bush at 9-10.        Specifically, Bush argues, “the two

witnesses, Clarence Milton and Robert Matthews, came forward only in order

to curry favor with law enforcement.” Id. at 9. Although this type of claim

typically implicates a challenge to the weight of the evidence, see

Commonwealth v. DeJesus, 860 A.2d 102, 107-108, (Pa. 2004), because

Bush raises his claim under Karkaria, a sufficiency case, we will review the

claim as a sufficiency challenge.

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      In light of Bush’s limited sufficiency challenge, we need only review

the identity element of his convictions.     As noted earlier, circumstantial

evidence is sufficient to establish the defendant’s identity as the perpetrator

of a murder. Commonwealth v. Santiago, 980 A.2d 659, 662 (Pa. Super.

2009).    Indeed, circumstantial evidence itself is sufficient to prove any

element or all of the elements of criminal homicide. Id.

      Milton and Matthews both testified that Bush confessed to them that

he shot and killed Wall with a nine millimeter gun.        Notes of Testimony

(“N.T.”), 1/28/2014, Vol. 2, at 81; N.T., 1/29/2014, Vol. 3, at 65-66.

However, even absent Milton and Matthews’ testimony, there was additional

testimony and evidence to prove beyond a reasonable doubt that Bush

murdered Wall.     Detective William Kelhower testified that he interviewed

Kalil Bell on February 7, 2011, during which Bell said that Bush also told him

that he shot and killed Wall. N.T., 1/28/2014, Vol. 2, at 257-268. Although

there were inconsistencies in the evidentiary record, the testimony was not

“so unreliable and contradictory that it is incapable of supporting a verdict of

guilty, and thus, is insufficient as a matter of law.” Karkaria, 625 A.2d at

1172. Rather, there was ample evidence to enable the jury to find beyond a

reasonable doubt that Bush was the person who killed Wall. Consequently,

Bush’s first issue does not merit relief.

      In his second issue, Bush also claims that the jury’s verdict was

against the weight of the evidence.




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      An allegation that the verdict is against the weight of the
      evidence is addressed to the discretion of the trial court.
      Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super.
      2005), (citing Commonwealth v. Sullivan, 820 A.2d 795, 805–
      806 (Pa. Super. 2003), (quoting Commonwealth v. Widmer,
      744 A.2d 745, 751–752 (Pa. 2000))).            The Pennsylvania
      Supreme Court has explained that “[a]ppellate 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.” Widmer, 744 A.2d at 753 (citation omitted).
      To grant a new trial on the basis that the verdict is against the
      weight of the evidence, this Court has explained that “the
      evidence must be ‘so tenuous, vague and uncertain that the
      verdict shocks the conscience of the court.’” Sullivan, 820 A.2d
      at 806 (quoting Commonwealth v. La, 640 A.2d 1336, 1351
      (Pa. Super. 1994)).

      [This Court shall not undertake to reassess credibility of
      witnesses, as] it is well settled that we cannot substitute our
      judgment for that of the trier of fact. Commonwealth v.
      Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the
      finder of fact was free to believe the Commonwealth’s witnesses
      and to disbelieve the witness for the Appellant.                  See
      Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the
      finder of fact is free to believe all, none, or part of the testimony
      presented at trial).


Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010)

(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009))

(citations modified).

      To support his weight of the evidence claim, Bush essentially reiterates

his sufficiency arguments, and contends that the jury should have accepted

his account of the events in question and rejected the testimony of the




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Commonwealth’s witnesses.2            Again, Bush assails the credibility of both

Milton and Matthews’ testimony, particularly the testimony identifying him as

the perpetrator of the murder. At trial, Bush’s attorney cross-examined both

Milton and Matthews, giving the jury ample opportunities to assess their

credibility and bias.        See N.T., 1/28/2014, Vol. 2, at 96-138; N.T.,

1/29/2014, Vol. 3, at 77-113. Having heard the testimony and observed the

demeanor of witnesses, including during cross-examination, the jury was

free to believe, or not to believe, the testimony of those two critical

witnesses.      Having reviewed the record, we conclude that the record

supports the jury’s verdict, and we discern no basis upon which to conclude

that the trial court abused its discretion by concluding that the jury’s verdict

did not shock the court’s conscience.

       Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015



____________________________________________


2
      Pursuant to Pa.R.Crim.P. 607(A)(3), Bush properly raised his weight
challenge in his post-sentence motion.



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