Com. v. Davis, R. ( 2016 )

J-S52021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD DAVIS,
Appellant No. 2042 EDA 2015
Appeal from the Judgment of Sentence April 10, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000915-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER, * JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016
Appellant, Ronald Davis, appeals nunc pro tunc from the April 10,
2012 judgment of sentence entered in the Court of Common Pleas of
Philadelphia County (“trial court”) following his convictions of aggravated
assault, violation of the uniform firearms act (“VUFA”), and possession of an
instrument of crime (“PIC”).1 Appellant challenges the sufficiency and
weight of the evidence, admission of a stipulation, and trial counsel’s
ineffectiveness. Upon review, we affirm.
The trial court summarized the testimony as follows.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2702, 6108, and 907, respectively.
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[]Philadelphia Police Officer Anthony Mergiotti testified that on
July 7, 2008, around 6:20 p.m., he received a phone call for a
report of a shooting at 2050 Gerritt Street in South Philadelphia.
Upon arrival, the officer located victim, Freddie Mears [(“the
victim”)], who was suffering from a gunshot wound and lying on
the living room floor of a house. The victim was awake and
responsive, but he did not provide any flash information at that
time. The victim was shot in the buttock and was transported by
Medic to Jefferson Hospital for the gunshot wound. The officer
wrote in his 75-48 police paperwork that the victim had stated at
that time that he was shot from behind by an unknown person.
At trial, the victim did not “navigate back and forth” in regard to
who had shot him. Instead, he unequivocally testified that
[Appellant] was the shooter, and explained why he was reluctant
to tell police who shot him and why he chose not to identify
[Appellant] at the preliminary hearing. The victim[] first
admitted that he has in the past been convicted of forgery,
burglary, and possession of a controlled substance. When the
shooting occurred in 2008, he worked as a “handyman” in the
neighborhood by turning on gas, electric, water, and cable for
people who had their services shut off. On July 7, 2008, the
victim received a phone call from [Appellant] requesting that the
victim turn on [Appellant’s] electric. The victim told [Appellant]
he could not do it at that time because he was busy. During the
conversation, the victim retorted, “If you can’t wait, get
somebody else to do it.” The victim believed that [Appellant]
took this comment as a sign of disrespect and asked the victim,
“Well, where are you at?” The victim told him, “I’m on 20 th and
Gerritt,” which was a friend’s house. When the victim was
finished working at his friend’s house, he was standing outside
that location when he noticed [Appellant] drive through the block
in a truck. [Appellant] then came back around the block, this
time as the passenger in the truck, and the truck drove up to the
next hundred block of Gerritt Street. [Appellant] got out of the
truck and walked up to the victim. The victim asked, “Yo, what’s
going on?” [Appellant] pulled a silver gun out of his pants. The
victim questioned, “Oh, you going to pull a gun out on me?” The
victim then turned around, whereupon [Appellant] shot him in
his buttock. [Appellant] ran, jumped in the truck, and the truck
pulled off. The victim walked back to his friend’s house, and told
him “I been shot. Call the cops.” The police and ambulance
came.
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Candidly, the victim admitted that he did have heroin in his
system when he was shot, but testified that he had a clear head
when questioned by Detective McKenna at Jefferson Hospital.
The victim did not initially tell Detective McKenna who shot him
because he was going to “take care of matters in [his] own
hands.” Nevertheless, at the time of the initial [s]tatement, the
victim did describe [Appellant] and his age. Later in the same
statement, the victim admitted that he knew who shot him, but
wasn’t “saying,” then added “I don’t know his real name. I know
he goes as Bilal . . . My brother knows his name. I think his
name is Ronald.” The victim told the Detective that he would be
able to identify [Appellant] if he saw him again. [FN1.]
[Appellant] was never picked up and arrested for the crime in
2008. However, in 2010, the victim was transported to South
Detectives to speak to Detective Johnson. The Detective asked
the victim about the 2008 shooting and showed the victim a
photo array of six or seven suspects. At that time, the victim
immediately picked out [Appellant] as the person who shot him.”
The victim testified that he had known [Appellant] for a long
time because he had been doing work on and off for him for a
while. When asked, “When did you first meet [Appellant], do
you think?” The victim answered, “I think it was in school.”
At the preliminary hearing, the victim refused to identify
[Appellant], but explained at trial that he had lied at the
preliminary hearing because he still wanted to take matters into
his own hands. [FN3.] The victim explained at trial “. . . I know
if I did [take matters into my own hands], you know, I probably
would have been in jail for the rest of my life. [FN4.]
[Appellant] also testified. He began by explaining that he was,
at the time of this trial, serving a 5 to 10 year sentence for
aggravated assault in which [he] pleaded guilty for shooting his
brother-in-law. He first testified that his brother-in-law “pulled a
gun out on [him][,] . . . we wrestled for it[,] . . . he got shot in
the leg[,] and I got time for it.” Later, [Appellant] admitted that
he confronted his brother-in-law early in the morning at a bus
stop at 20th and Moore Streets, asked him ‘What’s up with you
and my brother, Brian?”, and the victim accused him of shooting
him. [Appellant] pled guilty to the facts of pulling out a nickel
plated gun, shooting his brother-in-law in the right leg, and firing
at his nephew. [Appellant] testified that he only pled guilty to
the crime because he did not want to get a lot of jail time.
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FN1. Detective Michael McKenna confirmed the victim’s testimony.
Detective McKenna also testified that the victim was alert, in pain, but
talkative and coherent, although initially a little reluctant to tell the
Detective what happened. On [the] first page of the [s]tatement,
when asked, “Who was the guy?”, the victim said “I don’t know him.”
When asked, “Have you ever seen him before?”, the victim stated,
“No.” Later in the [s]tatement, when asked, “Do you know who shot
you?”, the victim replied, “I know, but I ain’t saying.” When asked
why that person shot him, the victim replied that it was “[b]ecause I
didn’t turn his electric on. I was doing work for him.” When asked,
“Are you going to tell me his name?” he answered, “I don’t know his
real name. I just know that he goes by Bilal, Bilal. My brother knows
his name. I think his name is Ronald. I don’t know his last name.
Detective Eric Johnson also confirmed the victim’s testimony. The
Detective explained that, when the victim circled the photo array of
[Appellant], he circled so hard as if he was trying to rip it because he
was angry and stated clearly, “That’s the guy that shot me.” The
victim indicated that it was “Bilal” nickname, first name “Ronald” that
shot him. He also recalled going to the same high school with
[Appellant] but different grades. The victim against explained that he
did work for [Appellant].
FN3. In a phone call from prison to his wife that was later played in
court by the Commonwealth, the victim told her that everything
worked out at the preliminary hearing, which meant that he wasn’t
going to press charges and would take matters into his own hands.
FN4. The stipulations read into the record were as follows: the
Commonwealth introduced a Pennsylvania State Police document to
prove that [Appellant] did not have a valid license to carry a firearm in
PA and did not have a valid sportsman’s firearm permit; the
Commonwealth admitted the phone recording [Appellant] made to his
wife while in prison and after the preliminary hearing; and the
Commonwealth admitted the Jefferson Hospital medical records into
the record which showed that, on July 7, 2008, the victim was treated
for a gunshot wound to his buttock.
Trial Court Supplemental Opinion, 10/13/15, at 3-7 (internal citations
omitted) (footnote 2 omitted).
At the conclusion of the jury trial on February 27, 2012, Appellant was
convicted of aggravated assault, VUFA, and PIC. On April 10, 2012,
Appellant was sentenced to 10 to 20 years for aggravated assault, a
consecutive period of 2½ to 5 years for VUFA and, concurrent to the VUFA
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sentence, 2½ to 5 years for PIC. Appellant did not file post-sentence
motions or a direct appeal.
Appellant filed a timely pro se PCRA petition on March 6, 2013. After
the trial court appointed counsel, Appellant filed an amended PCRA petition
requesting reinstatement of his direct appeal rights. The trial court granted
Appellant the right to appeal nunc pro tunc on June 25, 2012. Appellant
filed a notice of appeal on July 7, 2015. On July 15, 2015, the trial court
directed Appellant to file a concise statement of matters complained of on
appeal within 21 days. The trial court entered an opinion on August 12,
2015, noting that Appellant failed to comply with the trial court’s order of
July 15, 2012; therefore, Appellant waived all issues on appeal. Counsel for
Appellant requested an extension to file a concise statement, which the trial
court granted on August 17, 2015. Appellant filed a concise statement on
August 27, 2015. The trial court filed a supplemental opinion on October 13,
2015.
Appellant raises four issues on appeal.
I. Whether the evidence presented at trial was sufficient to convict
the Appellant of all charges where the verdicts were based on an
identification made by a witness who navigated back and forth in
statements to police, testimony at the preliminary hearing, and
during trial about whether [Appellant] committed the offense.
II. Whether the verdicts were against the weight of the evidence
where the jury heard testimony from one witness who said he
did not know who committed the offense, to he did know the
offender, back to he did not know the offender, particularly
where the witness has been convicted of multiple forgery and
burglary offenses.
III. Whether the trial court erred in admitting the evidence of
[Appellant’s] convictions for Violation of the Uniform Firearms
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Act where trial counsel failed to acknowledge a stipulation on the
record, where no custodian of record testified regarding the
quarter sessions file, and where such evidence presented to the
jury was highly prejudicial to [Appellant], the [trial] court’s
admission of said evidence constituted an abuse of discretion
which denied the Appellant the right to a fair trial guaranteed
under both the Pennsylvania and U.S. Constitutions.
IV. Whether trial counsel provided ineffective assistance of counsel
by failing to present evidence that the Appellant never attended
Southern High School with the complainant and where such
evidence would have established that the complainant was lying,
mistaken, or fabricating/bolstering his identification and
testimony?
Appellant’s Brief at 3.
Appellant’s first challenge is to the sufficiency of the evidence,
specifically to the identification of Appellant. This Court’s standard of review
for sufficiency of the evidence is well established.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant's innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(quoting Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super.
2013)).
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Essentially, Appellant’s argument is that the victim altered his story at
different procedural stages and has prior convictions involving crimen falsi;
therefore, there was insufficient evidence for conviction. In essence, he is
asking us to find the victim incredible because of his prior inconsistency.
Appellant’s argument goes to weight and credibility rather than the
sufficiency. See Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super.
2011) (“Directed entirely to the credibility of the Commonwealth’s chief
witness, [a]ppellant’s claim challenges the weight, not the sufficiency of the
evidence.”). “The weight of the evidence is exclusively for the finder of fact,
which is free to believe all, part or none of the evidence, and to assess the
credibility of the witnesses. An appellate court cannot substitute its
judgment for that of the jury on issues of credibility.” Id. (citations
omitted).
Even if Appellant’s argument went to the sufficiency of the evidence, it
is meritless because at trial the victim repeatedly identified Appellant as the
shooter. Furthermore, the victim testified that he changed his story because
he wanted to take care of the matter himself rather than press charges. As
there was testimony identifying Appellant as the shooter, Appellant’s
sufficiency claim fails.
Appellant’s second argument is a challenge to the weight of the
evidence. After having his appellate rights reinstated nunc pro tunc, via a
PCRA petition, Appellant did not file any post-sentence motions. In
Commonwealth v. Liston (Liston II), 977 A.2d 1089 (Pa. 2009), our
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Supreme Court held that defendants who have been granted the right to file
an appeal nunc pro tunc are not automatically granted the right to file post-
sentence motions nunc pro tunc. Liston II, 977 A.2d at 1093-94. In
seeking PCRA relief, Appellant did not attempt to have his right to file a
post-sentence motion reinstated. A challenge to the weight of the evidence
cannot be raised for the first time on appeal. See Commonwealth v.
Lofton, 57 A.3d 1270 (Pa. Super. 2012); Pa.R.Crim.P. 607. Appellant failed
to challenge the weight of the evidence prior to this instant appeal;
therefore, Appellant’s challenge to the weight of the evidence is waived.
Even if the claim were not waived, Appellant’s claim is meritless
because the jury was free to believe all, part, or none of the victim’s
testimony, and this Court cannot substitute its judgment for that of the jury
on issues of credibility.
Appellant’s next challenge is to the admission of a stipulation that was
read into the record. Appellant asserts that trial counsel failed to
acknowledge the stipulation on the record, thereby violating Appellant’s right
to a fair trial. “Rulings on the admissibility of evidence . . . are within the
discretion of the trial judge, and such rulings will form no basis for appellate
relief absent an abuse of discretion.” Commonwealth v. May, 887 A.2d
750, 761 (Pa. 2005) (citations omitted). A claim that the trial court violated
an appellant’s rights to confront witnesses must be forwarded at trial or it is
waived. Id.; see also Pa.R.A.P. 302(a). Upon this Court’s review of the
record it is apparent that trial counsel did not object to the stipulation being
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read into the record. As counsel did not object on the record, the claim was
not preserved on appeal. Appellant’s claim fails.
Next, Appellant asserts that his conviction was the result of
ineffectiveness of counsel, Daniel O’Riordan, Esquire. Specifically, Appellant
asserts that Attorney O’Riordan was ineffective for failing to present
evidence that it was impossible for the witness to have met Appellant at
Southern High School because Appellant did not attend that school. Upon
review of the record, we conclude the trial court should not have addressed
this issue.
The “general rule of deferral to PCRA review remains the pertinent law
on the appropriate timing of review of claims of ineffective assistance of
counsel.” Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). In
Holmes, our Supreme Court noted only two exceptions to this general rule.
The first exception is where “there may be an extraordinary case where the
trial court, in the exercise of its discretion, determines that a claim (or
claims) of ineffectiveness is both meritorious and apparent from the record
so that immediate consideration or relief is warranted.” Id. at 577. The
second exception provides that trial courts have discretion, upon good cause
shown, if there are multiple or prolix claims of counsel ineffectiveness, and
the defendant expressly waives PCRA review. See id. at 563-64.
In the matter sub judice, the trial court did not grant relief and there is
nothing in the record indicating that Appellant expressly waived PCRA
review. Thus, the Appellant’s claim does not fall under the two exceptions to
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the general rule of deferral to PCRA review. See id. at 563-64. Accordingly,
Appellant is not entitled to relief on his ineffectiveness claim on direct
appeal.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
____________________________________________
2
We do not express any opinion regarding the merits of Appellant’s
ineffectiveness claim.
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