Com. v. Smith, M. ( 2019 )

J-S82044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
v. :
:
:
MAURICE SMITH, :
:
Appellant : No. 3687 EDA 2017
Appeal from the Judgment of Sentence August 2, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003502-2015
BEFORE: LAZARUS, J., OLSON, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 07, 2019
Maurice Smith (Appellant) appeals from the judgment of sentence of
22½ to 45 years of incarceration, imposed following his convictions for third-
degree murder and conspiracy to commit robbery. We affirm
On April 25, 2013, the body of Tevan Patrick (Victim) was found inside
an abandoned property in Philadelphia. Victim had been shot nine times at
close range. After an investigation, the Commonwealth charged Appellant
and co-defendant, Bryan Brown-Camp, with murder, conspiracy to commit
murder, robbery, conspiracy to commit robbery, possession of a firearm
prohibited, firearms not to be carried without a license, carrying a firearm in
Philadelphia, and possession of an instrument of crime. A jury trial occurred
from February 22, 2017 to March 2, 2017.
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* Retired Senior Judge assigned to the Superior Court.
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On March 2, 2017, the jury convicted Appellant and Brown-Camp of
third-degree murder and conspiracy to commit robbery. The jury found both
men not guilty of first-degree murder, conspiracy to commit murder,
robbery, and all firearms charges. On August 2, 2017, Appellant and Brown-
Camp were both sentenced to an aggregate term of 22½ to 45 years of
incarceration.1 Appellant filed a post-sentence motion,2 which was denied.
Appellant timely filed a notice of appeal, and both Appellant and the trial
court complied with Pa.R.A.P. 1925.
On appeal, Appellant begins by challenging the sufficiency of the
evidence to sustain both convictions. Appellant’s Brief at 10-12. Appellant
argues that the evidence is insufficient because “[n]ot one witness identifies
Appellant as the shooter” and that “[t]here was no evidence of a planned
robbery.” Id. at 12. We review this issue mindful of the following.
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. When reviewing the sufficiency of the
evidence, this Court is tasked with determining whether the
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1 They were sentenced to 20 to 40 years of incarceration for third-degree
murder and a consecutive term of 2½ to 5 years of incarceration for
conspiracy to commit robbery. Brown-Camp filed post-sentence motions
and a notice of appeal to this Court. Brown-Camp’s judgment of sentence
was affirmed by this Court on January 24, 2019.
2 Appellant’s original post-sentence motion was filed on August 2, 2017.
Thereafter, counsel for Appellant withdrew, new counsel entered her
appearance, and she filed an amended post-sentence motion, which both
incorporated the issues from the August 2, 2017 post-sentence motion and
added several new ones.
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evidence at trial, and all reasonable inferences derived
therefrom, [is] sufficient to establish all elements of the offense
beyond a reasonable doubt when viewed in the light most
favorable to the Commonwealth[.] The evidence need not
preclude every possibility of innocence….
Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal
citations and quotation marks omitted). Credibility of witnesses and the
weight of the evidence produced is within the province of the trier of fact,
who is free to believe all, part, or none of the evidence. Commonwealth v.
Scott, 146 A.3d 775, 777 (Pa. Super. 2016).
In analyzing this claim, the trial court set forth the following.
The evidence … was sufficient to sustain the convictions for
third[-]degree murder and conspiracy to commit robbery. The
circumstantial evidence presented in this case weaves together a
tale of the actions of [Appellant] and [Brown-Camp] throughout
the day on April 22, 2013. The day began with [Victim] sending
a text message to [Janeicia Jackson, Brown-Camp’s] girlfriend,
requesting [Brown-Camp’s] new cell phone number. Sometime
after Jackson provided the number, [Brown-Camp] called
[Appellant] and asked [Appellant] to pick him up. [Appellant]
and his girlfriend, [Jackie Brown,] picked up [Brown-Camp] in
her four door silver Hyundai. [Appellant] and [Brown-Camp]
dropped Brown off at work, at approximately 3:00 p.m., and
borrowed her car. [Reginald Tyler, Victim’s childhood friend,]
saw [Victim] get into a silver four door car at the Citgo Station in
Delaware. The phones of [Brown-Camp] and [Victim] were both
utilizing a cell phone tower near the Citgo Station at 7:26 p.m.
and were in contact with one another at that time. The phones
were geographically tracked to Southwest Philadelphia, along
with [Appellant’s] cell phone. All three phones were utilizing cell
towers that covered that site where [Victim’s] body was
recovered. The property where [Victim’s] body was recovered
was an abandoned property where [Appellant’s] cousin stayed
sometimes. [Victim’s] cell phone went off-line at approximately
10:00 p.m., somewhere over the [Schuylkill] River, within a
half-hour of being geographically located near Southwest
Philadelphia with the phones of [Appellant] and [Brown-Camp].
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When the phone went offline, it was [] utilizing cell towers in the
same area as [Appellant’s] phone, on the Schuylkill Expressway.
Finally, [Appellant] is seen by Jackson arriving in Brown’s four
door silver car, a little after 10:00 p.m., at [Appellant’s] home,
located at 3830 Parish Street (which is a short distance from the
Schuylkill Expressway).
[Victim] is last seen at the Citgo Station in Delaware on
[April 22, 2013]. The last time he is heard from is close to 9:30
p.m. that evening when he states he is with [Brown-Camp]. His
phone is disabled as of approximately 10:00 p.m. …
[Appellant] made statements to [two other individuals,
Terry] Kearney and [William] Cummings[,] that he committed
the murder during the course of a robbery that he and [Brown-
Camp] planned.
Trial Court Opinion, 4/3/2018, at 16-17.
Simply because Appellant was not seen actually shooting Victim does
not render the evidence insufficient. Rather, viewing the evidence in the
light most favorable to the Commonwealth, the circumstantial evidence
established that Appellant and Brown-Camp lured Victim with the intent to
rob him, then shot Victim, and left his body in an abandoned house. In fact,
at 9:22 p.m. on April 22, 2013, Victim sent a text message to a female
friend, stating, “if some fishy shit happen I was wit B-Y.”3 Trial Court
Opinion, 4/3/2018, at 10. Around that time, the cell phones of Victim,
Appellant, and Brown-Camp were all traced in the area of the abandoned
house where Victim’s body was found. It is well-settled that “the
Commonwealth may sustain its burden of proving every element of the
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3 B-Y was a nickname for Brown-Camp.
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crime beyond a reasonable doubt by relying wholly on circumstantial
evidence.” Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa. Super.
2001). Accordingly, we conclude that Appellant is not entitled to relief on
this claim.
In Appellant’s second issue, he claims the trial court abused its
discretion by not granting him a new trial on the basis that the verdict was
against the weight of the evidence. Appellant’s Brief at 12-13. Specifically,
Appellant argues that he was not identified as the shooter and claims there
“was no evidence of a ‘planned’ robbery.” Id. at 12. In addition, Appellant
points out that the gun was never found and “the cell phone analysis did not
put Appellant’s phone in Delaware.” Id. at 13.
“A verdict is against the weight of the evidence ‘where 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.’” Commonwealth v. Williams, 176
A.3d 298, 312 (Pa. Super. 2017) (quoting Commonwealth v. Lyons, 833
A.2d 245, 258 (Pa. Super. 2003)). We examine challenges to the weight of
the evidence according to the following standard.
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. When a trial
court considers a motion for a new trial based upon a weight of
the evidence claim, the trial court may award relief only 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. The
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inquiry is not the same for an appellate court. Rather, when an
appellate court reviews a weight claim, the court is reviewing the
exercise of discretion by the trial court, not the underlying
question of whether the verdict was against the weight of the
evidence. The appellate court reviews a weight claim using an
abuse of discretion standard.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and
quotation marks omitted).
Here, as discussed supra, the trial court analyzed the evidence
presented at trial. The trial court concluded that based upon this evidence
“the jury could properly infer … that [Appellant] was the perpetrator.” Trial
Court Opinion, 4/3/2018, at 13. At trial, the jury was presented with a
series of witnesses to explain what happened to Victim on April 22, 2013.
The jury, which “was the ultimate fact-finder and the sole arbiter of the
credibility of each of the witnesses,” concluded that despite any
inconsistencies,4 Appellant and Brown-Camp were guilty. Jacoby, 170 A.3d
at 1080. “A jury is entitled to resolve any inconsistencies in the
Commonwealth’s evidence in the manner that it sees fit.” Id. Assessing all
of the evidence according to the governing principles cited above, we
conclude that the trial court did not abuse its discretion when it concluded
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4 The only inconsistency of note was the fact that Appellant’s phone was not
traced near the Citgo Station in Delaware. However, the fact that
Appellant’s phone was not traced near there is not conclusive evidence that
Appellant was not there.
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that the jury’s verdict did not shock its sense of justice. Consequently,
Appellant’s weight challenge fails.
Appellant next claims that the Commonwealth engaged in misconduct
in its questioning of Melissa Palmer and references to her testimony during
its closing argument. Appellant’s Brief at 13-14. Specifically, Appellant
claims that the Commonwealth violated the principles set forth in Bruton v.
United States, 391 U.S. 123 (1968), which held that “a defendant is
deprived of his rights under the Confrontation Clause when his nontestifying
codefendant’s confession naming him as a participant in the crime is
introduced at their joint trial, even if the jury is instructed to consider that
confession only against the codefendant.” Commonwealth v. Brown, 925
A.2d 147, 149 (Pa. 2007).
By way of background, Melissa Palmer is Brown-Camp’s cousin whom
the Commonwealth sought to have testify about an interaction she had with
Appellant and Brown-Camp after Victim’s murder.5 Prior to her testifying,
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5In a statement to police, Palmer stated that she received a message from
Brown-Camp on either April 24 or 25, 2013. She arranged to meet Brown-
Camp at the Belmont Plateau in Fairmount Park in Philadelphia. Appellant
was also at that meeting. At that meeting, Brown-Camp
asked Palmer questions about her boyfriend who had been
convicted of murder. [Brown-Camp] told Palmer that he was
being blamed for Victim’s death. He admitted that he “set
[Victim] up, that him and the other guy picked [Victim] up in
Delaware and they brought him to Southwest Philly by saying
they were going to rob a drug dealer.” [N.T., 2/24/2107, at 69].
(Footnote Continued Next Page)
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counsel for Appellant and the assistant district attorney entered into an
agreement regarding her testimony. See N.T., 2/23/2017, at 2-3. They
agreed that rather than Palmer testifying that Brown-Camp told Palmer that
he and Appellant killed Victim, she would use the word “we” so as not to
violate Bruton. N.T., 2/23/2017, at 3. During Palmer’s testimony, she
testified that Brown-Camp and Appellant set up a meeting with her. N.T.,
2/24/2017, at 64. She also testified to a redacted statement, where she
explained to the jury that she told police that Brown-Camp “told [her] that
he set [Victim] up, that [Brown-Camp] and ‘the other guy’ picked [Victim]
up in Delaware and they brought him to … Southwest Philly…” Id. at 69.
According to Appellant, Palmer’s reference to “the other guy” violated
Bruton. Appellant’s Brief at 13.
In addition, Appellant suggests that the assistant district attorney
engaged in prosecutorial misconduct by references made to this statement
during the closing argument. See N.T. 2/28/2017, at 132 (citing a reference
in the prosecutor’s closing statement to Palmer’s statement that “they” went
to pick up Victim in Delaware). Appellant argues that “[u]nder the totality of
the circumstances,” there was “a clear Bruton violation.” Appellant’s Brief at
14.
(Footnote Continued) _______________________
[Brown-Camp] then told Palmer that he was not the shooter, but
he was the one who set up [Victim].
Trial Court Opinion, 4/3/2018, at 5.
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Our review of the record reveals that Appellant waived this issue by
failing to object to it at trial. First, we observe that counsel for Appellant
consented to the version of the statement to which Palmer testified in order
to eliminate a potential Bruton violation. See N.T., 2/23/2017, at 2-3.
During trial, if counsel believed that the Commonwealth somehow violated
this agreement or that this testimony was otherwise improper, Appellant
should have lodged an objection. Additionally, if Appellant believed the
Commonwealth’s closing argument was improper, he should have objected.
“We have long held that [f]ailure to raise a contemporaneous objection to
the evidence at trial waives that claim on appeal.” Commonwealth v.
Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013); Commonwealth v.
Arrington, 86 A.3d 831, 854 (Pa. 2014) (holding Arrington’s claim was
“waived as [his] counsel did not raise contemporaneous objections to either
the prosecutor’s summation or … request a mistrial”). Based on the
foregoing, because Appellant did not object during this testimony or the
closing argument at trial, he has waived this issue on appeal and is therefore
not entitled to relief.
Finally, Appellant claims that the trial court abused its discretion in
sentencing Appellant where it “relied solely on the seriousness of the crime
and its impact on his victims in imposing an unduly harsh sentence.”
Appellant’s Brief at 15. Appellant’s claim implicates the discretionary
aspects of his sentence.
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An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant timely filed a notice of appeal. However, our review of
the record reveals that Appellant did not present this issue in a post-
sentence motion or at sentencing. The only issue concerning the
discretionary aspects of sentencing set forth in his post-sentence motion
states the following: “Defendant’s aggregate sentence of 22½-45 years
should be modified on the ground that the court abused its discretion by
considering the killing in question to be an ‘execution’ when defendant was
in fact acquitted of first[-]degree murder.” Post-Sentence Motion, 8/2/2017,
at ¶ 3. Furthermore, our review of the transcript does not reveal that
Appellant preserved this issue at sentencing. See N.T., 8/2/2017.
Because Appellant’s discretionary-aspects-of-sentencing claim on
appeal was not presented in his post-sentence motion, we conclude that
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Appellant has not preserved this issue for our review, and he is not entitled
to relief. See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super.
2010) (stating that an appellant waives for appeal issues challenging the
discretionary aspects of his sentence where he does not raise them at
sentencing or in a post-sentence motion).
For all of the aforementioned reasons, we affirm Appellant’s judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/19
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