Com. v. George, D. ( 2017 )

J-S79028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTE GEORGE :
:
Appellant : No. 2152 EDA 2016
Appeal from the Judgment of Sentence December 4, 2014
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014106-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTE GEORGE :
:
Appellant : No. 2154 EDA 2016
Appeal from the Judgment of Sentence December 4, 2014
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014108-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED DECEMBER 19, 2017
Donte George appeals nunc pro tunc from his judgment of sentence,
entered in the Court of Common Pleas of Philadelphia County, following his
convictions for two counts of aggravated assault (F-1),1 and one count each
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1 18 Pa.C.S. § 2702(a).
J-S79028-17
of criminal conspiracy to commit aggravated assault,2 carrying a firearm on
public streets or public property in Philadelphia,3 and possession of an
instrument of crime4 (PIC).5 After careful review, we affirm.
In July 2012, George opened continuous fire on security staff outside
the Encore Bar, located at 40th Street and Girard Avenue in Philadelphia.
George and his friends were arguing with security guards when the altercation
escalated into a fist fight and, ultimately, the firing of gunshots. The incident
was captured on surveillance video that was provided to police by the Encore
Bar. On September 17, 2014, a jury convicted George 6 of the above-
mentioned offenses. George was sentenced to an aggregate term of 9-18
years’ imprisonment, followed by ten years of probation. George filed a timely
motion for reconsideration claiming that his sentence was excessive. The
court denied his motion.
On November 30, 2015, George filed a timely pro se Post Conviction
Relief Act (PCRA) petition, see 42 Pa.C.S §§ 9541-9545, seeking
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2 18 Pa.C.S. § 903(a).
3 18 Pa.C.S. § 6108.
4 18 Pa.C.S. § 907(a).
5 George was charged at two separate docket numbers, CP-51-CR-0014106-
2012 and CP-51-CR-0014108-2012, for the above-referenced crimes. On July
28, 2016, by order, our Court consolidated both dockets numbers for purposes
of appeal.
6 George represented himself at trial; however, the court appointed him
standby counsel.
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reinstatement of his appellate rights. After a hearing, the court granted
George’s petition. The court appointed George new appellate counsel on June
21, 2016. George filed a timely nunc pro tunc appeal and court-ordered
Pa.R.A.P. 1925(b) statement.
On appeal, George claims that the eyewitness testimony was so weak
and unreliable that the Commonwealth failed to prove that he committed the
crimes for which he was convicted.
Although George couches his claim in terms of sufficiency of the
evidence, it is directed entirely to the credibility of the eyewitnesses at the
bar, and, as such, is a challenge to the weight, not the sufficiency, of the
evidence. Commonwealth v. Lopez 57 A.3d 74, 80 (Pa. Super. 2012). As
the trial court acknowledges in its Rule 1925(a) opinion, George has failed to
raise this weight issue before the trial court in either a written or oral motion
for a new trial. See Pa.R.Crim.P. 607. Therefore, he has waived this claim
on appeal.
Judgment of sentence affirmed.7
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7 However, even if we did not find that George waived this issue on appeal,
he would not be entitled to relief. The Commonwealth proved that George
committed the instant acts; security staff positively identified him at trial and
security footage from the incident corroborated their testimony that George
was the shooter.
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J-S79028-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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