Com. v. Josephus, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVIS L. JOSEPHUS :
:
Appellant :
:
: No. 2655 EDA 2022
Appeal from the Judgment of Sentence Entered August 26, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004200-2021
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 12, 2023
Josephus Davis1 appeals from the judgment of sentence entered after a
jury convicted him of murder of the second degree and other offenses. 2 We
affirm.
On January 13, 2021, Davis was arrested and charged in connection
with the shooting death of Milan Loncar. The case proceeded to a jury trial
beginning on June 22, 2022. The trial court summarized the evidence at trial:
On January 13, 2021, [Davis] robbed and killed the [25-
year-old decedent, who] was walking his dog. At approximately
6:53 p.m., [Davis], his co-conspirator, and the decedent all
converged at the intersection of 31st Street and Jefferson Street
____________________________________________
1 The appellant stated that his name is “Josephus Davis, but in the system it’s
backwards.” N.T., 5/20/22, at 5. We use his preferred name in the body of
this opinion but keep the case caption consistent with the trial court docket.
2 18 Pa.C.S.A. §§ 2502(b), 903(c) (conspiracy to commit murder),
3701(a)(1)(i) (robbery), 6106(a)(1) (carrying a firearm without a license),
and 907(a) (possessing an instrument of crime).
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in Philadelphia. After turning right on Jefferson Street and seeing
[Davis] and his co-conspirator walking towards him, the decedent
attempted to keep to the left; however, [Davis] veered to the left
forcing the decedent to walk between the two co-conspirators.
[Davis] pulled his gun from his jacket pocket, points it at the
decedent’s chest, and both men began searching through the
decedent’s pockets. As the decedent jerked away, [Davis] shot
him at point blank range. Both men immediately fled the scene.
As the decedent attempted to use his cellphone, he
collapsed on the sidewalk, suffering from one perforating gunshot
wound to the chest. Approximately four minutes later, police
officers responded to the scene and rush the decedent to Temple
Hospital, where he died a half-an-hour later.
Video surveillance captured both the incident and [the
conspirators’] flight to [Davis’] home. [Davis] and his co-
conspirator ran south on 31st Street, across the parking lot of the
Pointe, an apartment building at 1415 North 31st Street, and
climbed a fence to reach an alleyway that ends on Master Street.
Surveillance footage from the 30th Street Mini Market at 1400
North 30th Street and four private residences showed the co-
conspirators exiting the alleyway and walking east on Master
Street, until eventually turning left and walking north on
Hollywood Street out of camera view.
About [15 ]minutes later, at 7:13 p.m., video surveillance
showed the co-conspirators walking south on Hollywood Street
towards [Davis’] residence at 1446 Hollywood Street, three
houses south from the camera. [Davis] looked at his phone and
said, “Just say you outside . . . nothing wrong with saying you
outside.” [Davis] asked his mother, who was off camera, “What
did you say mom?” [Davis’] mother replied, “I didn’t say s[—],
what you doing?” [Davis] said “I’m waiting for my ride” as he
walked off-camera towards his home with his co-conspirator.
After about twenty seconds, [Davis] could be heard saying “just
stay right there” before he and his co-conspirator walk north on
Hollywood [S]treet, turn right onto Jefferson Street, and get into
the backseat of a waiting silver Ford Focus on 29th and Jefferson
Street.
Approximately an hour [and] a half later, police attempted
to pull over the silver Ford Focus on the 1800 block of Hart Lane
because the vehicle was reported stolen the night before. Once
the officer activated his car’s lights and sirens, a chase ensued for
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approximately three fourths of a mile with the officer losing sight
of the vehicle around D Street and Indiana Avenue.
After receiving information about the vehicle over police
radio, Highway Patrol Officer James Boone saw the vehicle parked
at B Street and Indiana Avenue and observed three men flee from
the vehicle. Approximately five minutes later, [Davis] was
secured by another officer at the 200 block of Indiana Avenue and
Officer Boone identified [him as one of the men who had fled].
When he was arrested, [Davis] wore clothing consistent with
the shooter on the surveillance video: gray, white, and red
Balenciaga sneakers, black jeans with a bedazzled belt, a dark
blue hooded jacket, a gray zip-up jacket, and a white t-shirt. One
particle of gunshot residue was found on the left sleeve of [Davis’]
gray zip-up jacket. [Davis] provided an alias [Joseph Daniels] and
an incorrect date of birth to the officers.
From the scene [of the shooting], police recovered one fired
cartridge casing (“FCC”), one 9mm projectile, and two matching
bullet fragments. The FCC matched a black and tan Polymer80
handgun with no serial number, which was recovered by police in
an unrelated incident [five months later], on May 20, 2021.
Trial Court Opinion, 12/6/22, at 2–4 (record citations omitted, tense altered).
On June 24, 2022, the jury found Davis guilty of the above counts. On
August 26, 2022, the trial court sentenced Davis to an aggregate term of life
imprisonment. Davis filed a timely post-sentence motion, which the trial court
denied on September 21, 2022. Davis timely appealed. Davis and the trial
court complied with Pennsylvania Rule of Appellate Procedure 1925.
Davis presents two questions for review:
I. Was the evidence sufficient to sustain [Davis’] conviction at
all counts?
II. Were the verdicts for all counts against the clear weight of
the evidence?
Davis’ Brief at 4.
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Davis’ first issue is a challenge to the sufficiency of the evidence. While
he concedes that the evidence at trial was sufficient to prove that the crimes
occurred, he maintains that the evidence was insufficient to identify him as
the perpetrator. Davis emphasizes the lack of eyewitnesses, direct testimony,
DNA, and fingerprints. He argues that the surveillance video (which did not
show the perpetrator’s face) and the gunshot residue test (which found one
particle on his sleeve) did not meet the burden of proving his identity.
The following well-settled principles frame this Court’s review of an issue
challenging evidentiary sufficiency:
The standard we apply in reviewing the sufficiency of the evidence
is whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying this test, we may not weigh the
evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact, while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part, or none of the evidence.
Commonwealth v. Dixon, 276 A.3d 794, 800 (Pa. Super. 2022) (quoting
Commonwealth v. Walsh, 36 A.3d 613, 618–19 (Pa. Super. 2012))
(brackets omitted).
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At trial, the Commonwealth bears the burden of proving the defendant’s
identity as the perpetrator. “Evidence of identification need not be positive
and certain to sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support a conviction,
such evidence can be used as other circumstances to establish the identity of
a perpetrator.” Commonwealth v. Edwards, 229 A.3d 298, 306 (Pa. Super.
2020) (quoting Commonwealth v. Kinney, 157 A.3d 968, 971 (Pa. Super.
2017)). Distinctive clothes can be circumstantial evidence of identity. See,
e.g., Commonwealth v. Hobel, 275 A.3d 1049, 1070–71 (Pa. Super. 2022)
(finding sufficient evidence of identity based in part on the defendant having
the same distinctive clothing as the robber as seen on surveillance video).
Here, the Commonwealth produced surveillance video showing the two
co-conspirators shooting the victim, running away, and climbing over a fence.
Notably, the different camera angles consistently depict the distinctive shoes
that the shooter was wearing, as well as a specific pattern of metal buttons
and a shoulder patch on his jacket. These are all consistent with what Davis
was wearing when he was talking outside his house fifteen minutes later and
when he was arrested two hours later. It was reasonable for the jury to infer
from Davis’ unique clothing that he was the perpetrator. That the co-
conspirators were wearing masks, resulting in the videos not showing their
faces, does not negate the remaining evidence of distinctive clothing. Rather,
the jury could weigh this evidence of Davis’ identity. Because the evidence
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was sufficient for the jury to infer that Davis was the perpetrator, his first
issue fails.
Davis’ second issue is a challenge to the weight of the evidence. As
above, Davis contests the evidence that he was the perpetrator. He argues
that the jury’s verdict was against the weight of the evidence, which “merely”
consisted of surveillance footage in which the perpetrator wore a mask and a
gunshot residue test that showed a single particle on his sleeve. Davis
preserved his weight issue in his post-sentence for a new trial.
We are guided by a well-settled set of precepts when
addressing a weight-of-the-evidence claim. First, we note that
the weight of the evidence is exclusively for the finder of fact, who
is free to believe all, none or some of the evidence and to
determine the credibility of witnesses. Second, a verdict will only
be reversed on this basis where the evidence is so tenuous, vague
and uncertain that the verdict shocks the conscience of the [trial]
court. Third, the fact-finder is charged with the responsibility to
resolve contradictory testimony and questions of credibility, and
we may not substitute our judgment in place of the fact-finder.
A motion for a new trial based on a weight-of-the-evidence
claim, like what happened in this case, is addressed to the
discretion of the trial court, and therefore, we review only the
[trial] court’s exercise of discretion and not the underlying
question of whether the verdict is against the weight of the
evidence. When reviewing a trial court’s determination on a
weight claim, we give the gravest consideration to the findings
and reasons advanced by the trial judge because it is the trial
judge, not the appellate court, who had the opportunity to see and
hear the evidence presented.
Commonwealth v. Fuentes, 272 A.3d 511, 516 (Pa. Super. 2022) (citations
and quotation marks omitted).
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Here, the trial court explained that the jury’s verdict did not shock the
trial court’s sense of justice. Trial Court Opinion, 12/6/22, at 7. The court
addressed the severity of the crimes and Davis’ identity as a perpetrator:
[Davis] killed the decedent by shooting him at close range after
he and his co-conspirator robbed the decedent at gunpoint.
[Davis’] distinctive clothing, weight, and height are consistent
with the shooter seen on the surveillance video. The co-
conspirators fled back to [Davis’] home, and [Davis] even had a
conversation with his mother before the co-conspirators got into
a silver Ford Focus together. Less than two hours after the
incident, [Davis] was arrested fleeing from a vehicle which was
the same make, model, and color as the vehicle on the
surveillance footage. Accordingly, [Davis’] claim that his
conviction is against the weight of the evidence fails.
Id. at 7–8 (tense altered).
We find no abuse of discretion. The trial court assessed the evidence in
light of the jury’s verdict and found that the verdict did not shock its sense of
justice. Davis has not shown how this determination represents an abuse of
discretion. Accordingly, we affirm Davis’ judgment of sentence.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2023
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