Com. v. Jones, T. ( 2018 )

J-S02030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE M. JONES :
:
Appellant : No. 1130 EDA 2016
Appeal from the Judgment of Sentence January 28, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008269-2013
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY NICHOLS, J.: FILED MARCH 29, 2018
Appellant Terrance M. Jones appeals from the judgment of sentence
entered following a four-day jury trial and his convictions for possession of a
firearm, carrying a firearm without a license, carrying a firearm in
Philadelphia, possession of an instrument of crime, simple assault, and
recklessly endangering another person.1 He challenges whether his
convictions were against the weight of the evidence. We affirm.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 3/22/17, at 1-5. Following his convictions, the
court sentenced Appellant to an aggregate sentence of six-and-a-half to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6105, 6106, 6108, 907, 2701, 2705, respectively.
J-S02030-18
seventeen years’ imprisonment. Appellant timely filed a post-sentence motion
challenging the weight of the evidence, which the court denied. Appellant
timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issue:
Was not the verdict of guilt against the weight of the evidence to
the degree that such serious doubt is cast upon the validity of
[Appellant’s] conviction as to shock the conscience where, taking
into consideration all the evidence presented at trial, there was
exculpatory and contradictory evidence as to [Appellant’s] actions
and location at the time the complainant was shot, and also
inculpatory evidence as to another party who had the opportunity
and motivation to commit the shooting, and the evidence thereby
failed to prove by sufficient weight that it was [Appellant] who
shot the complainant or otherwise committed the crimes of which
he was convicted?
Appellant’s Brief at 3.
In support of his issue, Appellant contends that the complainant’s
identification of him as the culprit was suspect. Appellant’s Brief at 16.
Appellant labels the complainant’s identification testimony as equivocal and
incredible because the complainant was intoxicated. Id. at 16-17. He also
accuses the complainant as predisposed to identifying him because of a prior
incident in which Appellant purportedly threatened the complainant with a
weapon. Id. at 17. Appellant also points out that no other witness testified
he was the shooter. Id. at 18. Finally, Appellant references alibi testimony
by defense witnesses that he was not present at the time of the shooting. Id.
Our standard of review is well-settled:
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
-2-
J-S02030-18
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (quotation
marks and citations omitted).
After careful review of the record, the parties’ briefs, and the decision
by the Honorable Diana Anhalt, we discern no abuse of discretion by the trial
court. See Trial Ct. Op. at 5-7 (summarizing conflicting testimony). As the
trial court accurately notes, credibility determinations and resolving
contradicting testimony were for the jury. See id.; accord Houser, 18 A.3d
at 1135-36.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/18
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Circulated 03/14/2018 01:10 PM
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IN THE COURT OF COMMON PLEAS: M,M e � _.
FOR TIJECOUNTY OF PHILADELPHIA • 11 �vftlt
CRIMINAL DIVISION TRIAL · _•· ....· Unit
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COMMONWEALTH NO.: CP-51-CR-0008269-2013 0 PA
OF PENNSYLVANIA
v. Superior Court No.:
1130 EDA 2016
TERRANCE JONES
CP-51-CR-0008269-2013 Comm. v. Jones, Terrance M
Opinion
OPINION
ANHALT,J.
1111111111 111111111111111
7922653281
Appellant in the above-captioned matter appeals this Court's judgment regarding his
conviction for Possession of a Firearm, 18 Pa.C.S.A. § 6105(a)(l) and related offenses. The
Court submits the following Opinion in accordance with the requirements of Pa.R.A.P. 1925(a).
For the reasons set forth herein, the Court holds that the judgment of conviction should be
affirmed.
PROCEDURAL HISTORY
On June 9, 2013, police arrested and charged Appellant, Terrance Jones with numerous
offenses stemming from a shooting. On November 25, 2015, following a jury trial, Appellant
was convicted of Possession of a Firearm (F2), Carrying a Firearm Without a License (F3 ),
Carrying a Firearm in Philadelphia (Ml), Possessing an Instrument of Crime ("PIC") (Ml),
Simple Assault (M2) and Recklessly Endangering Another Person ("REAP") (M2). On January
28, 2016, this Court sentenced Appellant to an aggregate term of 6.5 - 17 years of incarceration.
Appellant filed a timely notice of appeal on April 11, 2016. On April 15, 2016, this Court
ordered Appellant pursuant to Pa. R.A.P. 1925(b) to file with the Court a Concise Statement of
Matters Complained of on Appeal. On May 6, 2016, Appellant filed a Motion for Extension of
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time. On January 12, 2017, this Court again ordered Appellant pursuant to Pa. R.A.P. 1925(b) to
file with the Court a Concise Statement of Matters Complained of on Appeal. On February 2,
2017, Appellant filed a Supplemental Statement of Errors Complained of on Appeal. Appellant
raises the following issue on appeal:
1. The verdict of guilt was against the weight of the evidence for all of the crimes of
which the defendant was convicted to the degree that such serious doubt is cast upon
the validity of the defendant's conviction as to shock the conscience; to wit, taking
into consideration all the evidence presented at trial, including exculpatory and also
contradictory evidence as to, inter alia, the defendant's actions and locations at the
time of the commission of the crimes, the actions and locations of another party that
had the opportunity and motivation to commit the crimes, and the source of the shot
that wounded the complainant, the evidence failed to prove by sufficient weight that it
was the defendant who shot the complainant or otherwise committed the crimes of
which he was convicted. 1
FACTUAL HISTORY
On June 8, 2013, Wayne Oliver attended a party across the street from his home on the
4800 block of North 7th Street in Philadelphia. Notes of Testimony (N.T.) 11/23/15 at 9.
Appellant's brother, Marlon Jones "Marlo" and a bunch of other people that live on the block
attended the party. Id. at 11. During the party, Mr. Oliver and Marlo got into an argument and
Marlo threw a punch at Mr. Oliver. Id. at 14. As Mr. Oliver walked across the street to his house,
1 Counsel notes that this
supplemental statement is filed in response to the court's Rule 1925(b) order of January 12,
2017, apparently filed in response to counsel's request for an extension of time to file a supplemental statement of
errors upon receipt of all necessary notes of testimony. Counsel notes that at the time of filing of this supplemental
statement, counsel has received all outstanding notes of testimony, has reviewed those notes and is raising no
additional claims of error beyond the claim raised in the original statement of errors filed on May 6, 2016.
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Marlo followed him and threatened to shoot and beat him. Id. at 15. Mr. Oliver met Marlo in the
middle of the street, punched him twice, got on top of him and "beat the hell out of him." Id. at
17. Mr. Oliver's son-in-law, Anthony, removed Mr. Oliver off of Marlo and walked him back up
the block. Id. Anthony then directed Mr. Oliver back to his house. Id. at 19.
After about 10-15 minutes, Mr. Oliver came back outside on his porch and encountered
Marlo's son. Id. at 20. Marlo's son asked Mr. Oliver who hit his dad and Mr. Oliver responded
that he did. Id. at 21. Marlo's son then threw a punch at Mr. Oliver, jumped off his porch and ran
back into the street. Id. Mr. Oliver got off his steps and began to fight Marlo's son. Id. at 22. Mr.
Oliver then noticed Marlo's brother, Appellant, leaning on a car on the other side of the street.
Id. at 22-23. As Mr. Oliver and Marlo's son were fighting, Marlo's son ran toward Appellant. Id.
at 56. Mr. Oliver then ran toward Marlo and Appellant. Id. at 56-57. At this point, Mr. Oliver and
Appellant are about three feet from each other. Id. at 57. Mr. Oliver tried to swing at Appellant
as Appellant's "hand came up." Id. at 24. Appellant then shot Mr. Oliver once. Id. at 25. The
bullet went through the top of his groin, was lodged in his leg and remains there to this day. Id. at
27. Anthony then picked Mr. Oliver up and carried him to his porch. Id. at 30. Mr. Oliver the
stayed on the porch until the ambulance and the police arrived. Id. Mr. Oliver was then rushed to
Einstein Medical Center. Id. at 31. Mr. Oliver told Detectives that Appellant shot him when
approached at the hospital. Id. at 33-34.
Lawanda Oliver, Mr. Oliver's daughter, stated that her father limped into the house and
yelled "that fat fucking T shot me."2 N.T. 11/20/15 at 54. Tiara Oliver, also Mr. Oliver's
daughter, witnessed her father and Marlo arguing face to face at 4821 N. 7th Street, the address of
the party. Id. at 84. Marlo told her that her dad better leave tonight because he was going to kill
2 "T" refers to Appellant, Terrance Jones.
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him. Id. at 85. Tiara then witnessed her father and Marlo fight in the street. Id. at 87. At the end
of the fight, Marlo was knocked to the ground and began to bleed from his mouth and head. Id. at
88. Tiara, who has medical assistant experience, attempted to aid Marlo. Id. at 88. Tiara then
went back to the house and stood on her porch when she saw Appellant pull up in a red Corvette
and Marlo's son pull up in a black van. Id. at 93. She then went into the house and believed that
everything was over. Id. at 96. As she went back to her front door she heard one gun shot. Id. at
97. After Mr. Oliver was helped inside the house, Tiara looked outside and saw everybody trying
to get out of the way. Id. at 98-99. Tiara witnessed Appellant get back into his car and Marlo's
son get into his van and both pull away. Id. at 99-100. She then went back inside her house
where her father screamed "T f-ing shot me." Id. at 102.
Detective Jeffrey Geliebter met with Mr. Oliver at 3:30 a.m. on June 9, 2013, at Einstein
Hospital. N.T. 11/23/15 at 92. He showed Mr. Oliver a photo array to which he identified and
circled the second picture from the left on the bottom row, a picture of Appellant. Id. at 91. Mr.
Oliver indicated that Appellant was the man who shot him and that he was "a hundred percent
sure he was looking at him when he was shot." Id. at 93. Detective Robert Hassel met with Mr.
Oliver at Einstein Hospital and conducted an interview around 11 :45 p.m. Id. at 108. Mr. Oliver
told Detective Hassel that a man named "T" shot him, the brother of the man he was fighting. Id.
at 110.
However, there are two versions of the events that unfolded the night of June 8, 2013.
Marlo testified to his account of the evening. Belinda Moore and Appellant were carrying him
into his house when he heard a gunshot. Id. at 156-158. However, Marlo's memory is hazy. He
stated that he did not remember who was at the party or who was next door when he got to the
party. Id. at 169. Marlo claimed that his memory of the events was better today than hours after it
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happened. Id. at 175. Marlo reasoned that he was close to "blackout drunk" that evening. Id. at
173. Marlo, by his own admission, mentioned his memory was less than perfect. Id. at 182.
Q: So I think we can all agree that your recollection of that night is fogged?
A: Yeah, I'm not saying it's perfect, but I'm giving you the best answers I could
give you.
Id. at 182-183. Belinda Moore, Marlo's wife, testified to a similar set of events. She also
attended the party at 4821 N. 7th Street on June 8, 2013. Id. at 196. She stated that Mr. Oliver and
her husband got into a physical altercation after hanging out and drinking all day. Id. at 198. As a
result of the two fighting, Ms. Moore called the police, Appellant, and her nephew Derrick
because none of the neighbors were helping break up the fight. Id. at 199. Appellant picked up
Marlo off the ground and proceeded to carry him into the house. Id. at 201. As Ms. Moore was
going in the house she heard what sounded like a gunshot. Id. So she, Marlo and Appellant
rushed into the house. Id. at 202. She stated that as the gunshot went off, she was holding
Marlo's one arm and Appellant was holding the other. Id. Derrick also testified that he helped
take Marlo into the house. Id. at 229.
DISCUSSION
Appellant contends that the guilty verdict was against the weight of evidence.
Specifically, Appellant asserts that the evidence failed to prove by sufficient weight that it was
Appellant who shot the complainant or otherwise committed the crimes of which he was
convicted.
"The weight of the evidence is exclusively for the finder of fact who is free to believe all,
part, or none of the evidence and to determine the credibility of the witnesses." Commonwealth
v. Champney, 832 A.2d 403, 408 (Pa. 2003). The Supreme Court of Pennsylvania in Champney
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explained that an appellate court cannot substitute its judgment for that of the finder of fact. Id.Therefore, the court may only reverse the lower court if the verdict is so contrary to the evidence
as to "shock one's sense ofjustice." Id. citing Commonwealth v. Small, 741 A.2d 666, 672-73
(Pa. 1999) (citations omitted). The Supreme Court has set forth the following standard of review
for Appellant's claim that the verdict is against the weight of evidence and that he should be
entitled to a new trial:
The essence of appellate review for a weight claim appears to lie in ensuring that
the trial court's decision has record support. Where the record adequately supports
the trial court, the trial court has acted within the limits of its discretion.
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. 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.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). (citations and quotation omitted).
See also Kaplan v. 0 'Kane, 835 A.2d 735, 737 (Pa. Super. 2003). (holding "[t]he power to grant
a new trial lies inherently with the trial court, and [the] appellate court will not reverse its
decision absent a clear abuse of discretion or an error of law which controls the outcome of the
case.").
The defendant in Champney claimed that the guilty verdict was against the weight of the
evidence since the jury supposedly ignored important evidence in reference to the thoroughness
of police investigation. Champney, 832 A.2d at 408. The Supreme Court of Pennsylvania in
Champney explained that it was exclusively within the jury's province to weigh this evidence,
and thus, the defendant's claim failed. Id. at 409.
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Here, Appellant points to Marlo's and Ms. Moore's testimony as evidence that exculpates
him from his conviction in connection with the shooting. Specifically, Appellant directs our
attention to testimony that shows him carrying Marlo into his house as the shot was fired which
proves that he was not the gunman. N.T. 11/23/15 at 156-158. However, there are many issues
with Marlo's testimony. The jury was proper when it discounted the testimony of Marlo, a man
who, by his own admission, did not have great memory. Id. at 182. Marlo, himself, used the term
"blackout drunk." Id. at 173. The other time the jury heard that Appellant was carrying Marlo
when the gunshot went off was from Ms. Moore. Id. at 201. Ms. Moore is Marlo's wife and
therefore, Appellant's sister-in-law. Id. at 196. That relationship naturally raises questions as to
her intentions to provide credible testimony. Since the jury was free to believe all, part or none of
the evidence against Appellant outlined above, and similar to Champney, the jury was proper in
believing Mr. Oliver's credible version of events and ignoring or discrediting Marlo's and Ms.
Moore's version. That the jury convicted Appellant with evidence provided by Mr. Oliver,
Lawanda and Tiara is not so contrary to the evidence that it would shock one's sense of justice.
Therefore, the guilty verdict was not against the weight of evidence.
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CONCLUSION
After review of the applicable statutes, testimony, and case law, the verdict was not
against the weight of evidence. Accordingly, this Court's decision should be affirmed.
BY THE COURT:
DATE: March21,2017 DIANAL.ANHALT, J
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PROOF OF SERVICE
I hereby certify that on the date set forth below, I caused an original copy of the Judicial
Opinion to be served upon the persons at following locations, which service satisfies the
requirements of Pa.R.A.P. 122:
Mark Cichowicz, Esquire
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102
Hugh Bums, Esquire
Philadelphia District Attorneys Office
Three South Penn Square
Philadelphia, PA 19107
Date: � /2. L /1 f
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