Com. v. Mack, G. ( 2019 )

J-S82026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY MACK :
:
Appellant : No. 3266 EDA 2017
Appeal from the Judgment of Sentence January 27, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005280-2014
BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2019
Appellant, Gregory Mack, appeals from the judgment of sentence
entered on January 27, 2017, following his jury trial convictions for attempted
murder, aggravated assault, persons not to possess a firearm, carrying a
firearm without a license, carrying a firearm on public streets in Philadelphia,
and possession of an instrument of crime.1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. The aforementioned charges stemmed from an incident that occurred
on December 22, 2013, wherein Dajohn Comer was shot numerous times and
sustained serious injuries. Appellant proceeded to a jury trial in January 2016
that ended in a deadlock and subsequent mistrial. Following a second trial in
October 2016, a jury convicted Appellant of all charges. On January 27, 2017,
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1 18 Pa.C.S.A. §§ 901/2502, 2702(a)(1), 6105(a)(1), 6106(a)(1), 6108, and
907, respectively.
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* Retired Senior Judge assigned to the Superior Court.
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the trial court imposed an aggregate sentence of 26 to 52 years of
incarceration.
On February 5, 2017, Appellant filed a timely post-sentence motion
alleging, inter alia, that the jury’s verdict was against the weight of the
evidence. On April 4, 2017, the trial court removed original trial counsel and
appointed replacement counsel to represent Appellant on appeal. On June 6,
2017, Appellant’s post-sentence motion was denied by operation of law. On
July 17, 2017, Appellant’s new counsel filed a collateral relief petition seeking
nunc pro tunc reinstatement of appellate rights. That petition alleged that
due to the change in counsel, newly appointed counsel did not receive the
order denying Appellant’s post-sentence motion by operation of law. The trial
court granted nunc pro tunc relief by order entered on September 11, 2017.
On October 6, 2017, Appellant filed a counseled notice of appeal.2 On
November 3, 2017, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on November 13, 2017, raising the claim that the verdict was
against the weight of the evidence. On April 20, 2018, this Court received
correspondence from the Philadelphia Clerk of Courts that it was sending the
certified record to this Court without an opinion pursuant to Pa.R.A.P. 1925(a),
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2 Although not entirely clear from our review of the record, it appears that
the trial court appointed yet another attorney to represent Appellant and that
attorney currently represents Appellant on appeal.
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because the Honorable Roger Gordon, who presided over Appellant’s trial, was
no longer sitting as a judge in Philadelphia County.
On appeal, Appellant presents the following issue for our review:
Were the verdicts against the weight of the evidence and shock
the conscience?
Appellant’s Brief at 2.
Initially, we note that we are presented with a unique procedural
situation because the trial court judge is no longer sitting and did not rule on
Appellant’s weight of the evidence claim prior to leaving the bench. Our
Supreme Court has addressed this issue as follows:
The general rule in this Commonwealth is that a weight of the
evidence claim is primarily addressed to the discretion of the judge
who actually presided at trial. There is, of course, some tension
between the power of trial courts to overturn jury verdicts
premised upon weight claims, and the bedrock principle that
questions of credibility are exclusively for the fact-finder.
Accordingly, the authority of the trial judge to upset a verdict
premised upon a weight claim is narrowly circumscribed. A trial
judge cannot grant a new trial because of a mere conflict in
testimony or because the trial judge on the same facts would have
arrived at a different conclusion. Instead, a new trial should be
granted only in truly extraordinary circumstances, i.e., 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.
[Our Supreme] Court [has] also consistently recognized that,
while an appellate court may review whether the trial court abused
its discretion in deciding a weight claim, its role is not to consider
the underlying question in the first instance. Appellate review is
generally cabined in this regard because of the disparity in
vantage points between trial and appellate courts:
An appellate court by its nature stands on a different
plane than that of a trial court. Whereas a trial court's
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decision to grant or deny a new trial is aided by an
on-the-scene evaluation of the evidence, an appellate
court's review rests solely upon the cold record.
Thus, as [our Supreme Court has explained,] while there may be
some legitimacy for a trial court, who has also observed the
witnesses as they testified, to consider the weight of the evidence,
there is surely no justification for an appellate court, relying upon
a cold record, to exercise such a function. Given the unique nature
of the power reposed in the trial court concerning a weight claim,
[the Supreme] Court has emphasized on a number of occasions
that 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 new process was
or was not dictated by the interests of justice. Accordingly, where
the reasons for the trial court's granting or denying a new trial
appear in the record, [our Supreme] Court has held that only a
palpable abuse of discretion will warrant upsetting that decision
on appeal.
None of the decisions holding that an appellate court may not
review a ruling on a weight claim by considering the evidence itself
in the first instance, however, raised the question [of] whether an
appellate court is barred from reviewing such a claim where the
judge who presided over the trial never ruled on the claim and is
now permanently unavailable to do so. Upon careful consideration
of this issue of first impression, [our Supreme Court] agree[d] that
this circumstance warrants an exception to the general rule
barring appellate review of weight claims in the first instance.
* * *
[…W]here a properly preserved weight of the evidence claim is
raised on appeal and the judge who presided at trial failed to rule
on the claim and is now permanently unavailable to do so, the
claim must be reviewed by the appellate tribunal in the first
instance. [Our Supreme Court stated that it was] confident in the
ability of our appellate courts to apply this exception
appropriately, with an eye to the delicate balance that exists
between the jury's exclusive role in assessing credibility, and
[Pennsylvania’s] longstanding recognition of the power in courts
to allow justice another opportunity to prevail when a verdict
nevertheless shocks the judicial conscience. In this regard, [] our
appellate courts are well-familiar with weight claims. Although
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appellate review has been confined to an assessment of the trial
judge's exercise of discretion, it obviously has been necessary to
consider the proper role and contours of the weight of the
evidence doctrine, in evaluating that exercise of discretion. This
holding exists as an exception to [the] general rule.
Armbruster v. Horowitz, 813 A.2d 698, 702–705 (Pa. 2002) (internal
citations, quotations, footnotes, and original brackets omitted).
Here, Appellant properly raised and preserved his weight of the evidence
claim. The trial judge never ruled on the claim and now he is permanently
unavailable. Hence, as an exception to the general rule, we will review
Appellant’s weight claim for the first time on appeal.
Appellant claims that his convictions were against the weight of the
evidence for several reasons. First, Appellant argues, “the evidence showed
that the [victim] could not and did not identify [A]ppellant during trial [as the
perpetrator of the crimes].” Appellant’s Brief at 17. Appellant argues that the
victim also “averred that no one asked him directly who [] shot him because
he indicated to those to whom he spoke that he did not know who shot him.”
Id. Appellant maintains that the victim’s statements to police that Appellant
shot him were made under the influence of pain pills and unreliable. Id. at
19. Moreover, at trial, the emergency medical technician (EMT) who
transported the victim to the hospital testified that the victim told him that his
friend shot him; on appeal, Appellant claims the testimony was invalid and
lacked veracity because the EMT did not make a record of the conversation or
subsequently inform the police of it. Id. at 18. Appellant additionally claims
that the victim’s mother, who was also riding in the ambulance, testified that
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her son was unintelligible, further undermining the EMT’s testimony. Id.
Appellant suggests that there was also “evidence indicating that other persons
may have had a motive to shoot” the victim, but that police failed to
investigate because they had already decided “that [A]ppellant was the party
responsible for the shooting.” Id. at 19-20. Finally, Appellant argues, “the
Commonwealth failed to present any physical evidence connecting [A]ppellant
to the crime” because “no shell casings or other ballistic evidence was found
at the scene.” Id. at 19.
As set forth above, a new trial based upon the weight of the evidence
should be granted “only in truly extraordinary circumstances, i.e., when the
jury's verdict is so contrary to the evidence as to shock one's sense of justice.”
Armbruster, 813 A.2d at 702. A new trial is not warranted, however, based
upon “a mere conflict in testimony.” Id. Moreover, “[o]ur law is crystal clear
that the trier of fact, in passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part, or none of the evidence
presented.” Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa. Super.
2000).
At trial, the Commonwealth presented the testimony of the victim.
Although he testified he could not recall what happened on the night of the
shooting or his subsequent statements to police, the Commonwealth
presented the victim with his written statement to police, taken soon after his
release from the hospital. N.T., 10/5/2016, at 26-40. In that statement, the
victim claimed that he was outside of his house with Appellant at 1:30 a.m.
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on the night in question. Id. at 35. There were no other people present. Id.
at 37. Appellant went into the house across the street to retrieve a jacket
because he was cold. Id. at 35. When Appellant returned, he stood on the
left side of the victim. Id. The victim heard a loud bang in his left ear and
fell to the ground. Id. The victim identified Appellant by a photograph to
which he attested by signature. Id. at 37-41. The victim also told police that
he had been inside the residence where Appellant retrieved his jacket, on
three prior occasions, and that Appellant showed him a .25 caliber
semi-automatic firearm. Id. at 36-37. The victim testified that he did not
want to appear in court, because he now has a son and no longer wants “to
bring the situation up.” Id. at 46. The Commonwealth also presented the
victim’s grand jury testimony, which largely mirrored his statement to police.
Id. at 53-64. Moreover, the victim additionally testified before the grand jury
that when he awoke in the hospital, he told his mother that Appellant shot
him. Id. at 65.
The EMT testified that although the victim’s mother rode to the hospital
in the ambulance, she was seated in the front of the vehicle next to the driver.
N.T., 10/5/2016, at 106 and 108. The EMT testified that he asks patients
multiple questions to keep them alert and to obtain as much information as
possible to assist in their medical intervention. Id. at 109-110. When asked
who shot him, the victim stated it was a friend. Id. at 113. On
cross-examination, the EMT clarified that the victim “[c]ould have said his
homie, but he referred to somebody who he knew personally.” Id. at 129.
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The EMT also explained that he did not document the statement on his
subsequent medical report because “only medical information [is] supposed
to be documented.” Id. at 115. The emergency surgeon testified that the
victim “had two gunshot wounds to his face and four to his torso.” N.T.,
10/7/2016, at 52. The surgeon did not know if there were bullets removed
from the victim’s abdomen, but several bullet fragments were recovered from
the victim’s head. Id. at 55-56.
The victim’s mother testified that, from inside her house, she heard
gunshots and rushed outside to find her injured son screaming and lying on
the ground bleeding. N.T., 10/6/2016, at 12-13. Paramedics arrived quickly
and the victim’s mother rode to the hospital in the front passenger seat of the
ambulance. Id. at 14. She could hear most, but not all, of the conversation
between her son and the EMT in the back of the ambulance. Id. at 15. The
victim’s mother stated that she did not hear her son tell the EMT that his friend
shot him, but she was “paying attention with how fast [they] were going to
get [to the hospital] because that was one of [her] main concerns.” Id. at
42-43. After four days in a medically induced coma, the victim awoke and
told his mother, “G-Mack did it.” Id. at 16. The victim told his mother that
they were talking outside, “G-Mack said he was cold and he was going to grab
a jacket” and when he returned, he shot the victim. Id. at 17. The victim’s
mother testified that her son told her that Appellant owned “a little raggedy
.25” caliber firearm that he saw inside Appellant’s home. Id. at 21.
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An investigating officer who conducted the interview of the victim stated
that although the victim was under the effects of pain medication, he was
coherent and not impaired so as to affect his ability to give an interview. Id.
at 153-154. The investigating officer read the victim’s statement for the
record at trial. Id. at 159-164. In that statement, the victim claimed that he
and Appellant were the only people on the street at the time of the incident
and that Appellant was standing on his left side when he heard a loud bang in
his left ear. Id. at 160. The victim stated that Appellant had shown him a
.25 caliber semi-automatic pistol on three separate occasions inside
Appellant’s house. Id. at 162. The victim identified Appellant to police by
photograph and adopted the identification by signature. Id. at 164.
In executing an arrest warrant for Appellant, police investigated and saw
Appellant frequenting a residence on Darien Street. N.T., 10/7/2016, at
25-27. The owner of that property was driving a vehicle when police stopped
her. Id. at 26. Appellant and two other females were inside that vehicle at
the time of the stop. Id. at 25-27. Police recovered a firearm from one of
those women. Id. at 26. Police then directed the driver to drive two blocks
to her residence. Id. at 27. At the driver’s house, police interviewed Appellant
who gave them two false names and then fled. Id. at 27-28; 61-68. Police
apprehended and arrested Appellant two blocks away hiding in a backyard.
Id. at 28; 68. The driver of the vehicle gave consent to search her home after
police told her they were investigating Appellant. Id. at 29-30. Police limited
their search to areas in the home where Appellant spent time, according to
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the homeowner, which included the living room and the basement. Id. at 31-
32. Under a couch cushion in the living room, police recovered a .357 caliber
Magnum firearm, a clip and a magazine for a .25 caliber handgun, and a box
containing twenty-seven, .25 caliber bullets.3 Id. at 33-34. Police however,
did not recover any fired bullet casing cartridges at the scene of the crime.
N.T., 10/6/2017, at 90.
Based upon our review of the record, we conclude that Appellant’s
weight of the evidence is without merit. The Commonwealth presented
evidence that Appellant was the sole person present when the victim was shot.
The victim told his mother, police officers, and a grand jury that Appellant was
the perpetrator. Further, the EMT who rendered emergency aid immediately
after the shooting testified that the victim told him that his friend shot him.
While no ballistics evidence was recovered from the scene, the Commonwealth
presented evidence that Appellant possessed a .25 caliber firearm that he kept
inside the residence he exited immediately prior to the shooting and police
witnessed Appellant frequenting another residence wherein they recovered
.25-caliber ammunition and a magazine from an area where Appellant spent
time. The jury also heard evidence that once detained, Appellant gave false
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3 Appellant was found not guilty in a separate prosecution for possession of
the firearm recovered from the residence on Darien Street. N.T., 10/7/2016,
at 41.
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names to police and then fled.4 Appellant’s current claim largely centers on
inconsistencies in the witnesses’ trial testimony. However, conflicts in
testimony are not cause for a new trial. The jury was free to believe all, part,
or none of the evidence presented and we may not usurp their findings.
Finally, we conclude the jury's verdict was simply not so contrary to the
evidence as to shock one's sense of justice. Accordingly, Appellant is not
entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/19
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4 “Evidence of flight or self-concealment on the part of a person who knows
that he or she is wanted for a crime may be admitted to show consciousness
of guilt....” Commonwealth v. Toro, 638 A.2d 991, 999 (Pa. Super. 1994)
(citation omitted).
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