Com. v. Lewis, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COREY LEWIS :
:
Appellant : No. 1342 MDA 2021
Appeal from the Judgment of Sentence Entered August 10, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002198-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: SEPTEMBER 21, 2022
Corey Lewis appeals nunc pro tunc from the judgment of sentence
imposed following a bifurcated jury and nonjury trial in which Lewis was
convicted of attempted homicide, carrying a firearm without a license, and
possessing a firearm as a person prohibited from doing so.1 For these offenses,
Lewis received an aggregate sentence of twenty-one to forty-two years of
incarceration. On appeal, Lewis challenges both the weight and sufficiency of
the evidence used to establish his guilt. In addition, Lewis contends that the
lower court abused its discretion when it imposed consecutive sentences and,
in doing so, resulted in him receiving an excessive aggregate sentence that
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 Retired Senior Judge assigned to the Superior Court.
1See 18 Pa.C.S.A. § 901(a); 18 Pa.C.S.A. § 6106(a)(1); and 18 Pa.C.S.A. §
6105(a)(1), respectively. The prohibited possession charge was adjudicated
by the court and decided on the same day as the jury’s verdict.
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was not reflective of his ability to become rehabilitated. We affirm.
Briefly, the facts underpinning Lewis’s convictions stem from a shooting
that occurred outside of Jazzland, a bar/nightclub located in Harrisburg,
Pennsylvania. Lewis fired several shots at the back of Antoine Jackson, and
resultantly, Jackson was struck twice by bullets discharged from Lewis’s
weapon.
Before his trial began, the parties agreed that a prior conviction made
Lewis ineligible to possess a firearm. Therefore, the prohibited possession of
a firearm charge was bifurcated from the other two crimes, to be decided by
the court after his jury trial.
At trial, despite there being a seemingly high number of people eligible,
the Commonwealth did not present any witnesses that were there on the night
the shooting occurred, including the victim. Instead, the Commonwealth
chiefly utilized the testimony of Detective Richard Gibney wherein he, inter
alia, identified Lewis from video footage taken from Jazzland’s security
system, which was set up both inside and outside of the facility.
Detective Gibney first indicated that he positively identified both Lewis
and Jackson as being at various points throughout the bar, which, in that
phase of the recording, went on for approximately fifteen minutes. Then, after
Jackson left through a side door, Lewis, who put his hood over his head,
proceeded to follow him outside approximately one minute later. Lewis
pursued Jackson on foot and, in the process, fired several shots at him. After
that, Lewis ran away from the scene with police officers arriving roughly four
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to five minutes later.
In more of his testimony, Detective Gibney identified that he had
discussed what had happened with Jackson while Jackson was recovering from
the shooting in a hospital. However, Detective Gibney conceded that: (1) there
was no search performed of Jackson’s phone to further the investigation even
though it was in his possession; and (2) there was no attempt made to find
the firearm Lewis used in the shooting. Eventually, Lewis turned himself in.
Lewis’s interview with Detective Gibney was played for the jury.
Ultimately, the jury found Lewis guilty of attempted murder and
possessing a firearm without a license. Correspondingly, the court found Lewis
guilty of possessing a firearm as a person prohibited from doing so.
At sentencing, which featured the court having had the benefit of a pre-
sentence investigation (PSI) report, Lewis was sentenced to fifteen to thirty
years of imprisonment for the attempted murder offense and consecutively
sentenced to six to twelve years of imprisonment for prohibited possession of
a firearm, with no further sentence imposed for his carrying of a firearm
without a license.
Lewis did not file a direct appeal from his judgment of sentence, but
later sought nunc pro tunc relief pursuant to the Post Conviction Relief Act
(PCRA) to restore his direct appeal rights. See 42 Pa.C.S.A. §§ 9541-9546.
The court subsequently granted his PCRA petition, which allowed Lewis to file
both a post-sentence motion that would subsequently be denied as well as a
notice of appeal.
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Having filed a notice of appeal, the parties have complied with their
respective obligations under Pennsylvania Rule of Appellate Procedure 1925,
and accordingly, this matter is ripe for review. On appeal, Lewis raises three
issues:
1. Was the evidence presented at trial sufficient to sustain guilty
verdicts for attempted homicide and carrying a firearm without
a license?
2. Did the lower court err in denying Lewis’s motion for a new trial
because the verdict was against the weight of the evidence?
3. Did the lower court abuse its discretion in imposing consecutive
sentences and by not taking into consideration Lewis’s specific
attributes?
See Appellant’s Brief, at 6 (reordered for ease of disposition).
For claims challenging the sufficiency of evidence, we employ a well-
settled standard of review:
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 the above 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. ... Finally, the finder 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.
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Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017) (citation
omitted).
Lewis’s entire argument in this domain spans three sentences.
Replicated in full, he states:
[t]he evidence presented here was insufficient to support a
conviction for attempted homicide. Specifically, only Detective
Gibney, who had no prior interactions with [Lewis] and had no
previous knowledge of him, identified [Lewis] as the shooter. The
Commonwealth did not present actual eye-witness testimony of
the shooting despite numerous people being present at the bar
that evening.
Appellant’s Brief, at 17. Lewis’s brief contains no description of the elements
of his convictions and does not have any corresponding citations to the record.
Moreover, Lewis has provided no authority to demonstrate that Detective
Gibney’s post hoc review of Jazzland’s video system and subsequent
identification of him is insufficient as a matter of law.
In the absence of any specific argument challenging a discrete aspect
or multiple components of his crimes, we rely on the well-detailed opinion of
the lower court in its analysis as to why Lewis is not entitled to relief. Therein,
the court demonstrated why Detective Gibney’s identification was legally
sufficient, despite the lack of eyewitnesses used at trial:
Detective Gibney testified that as part of his investigation,
he reviewed video footage from several cameras located in and
around the bar where the shooting occurred. With the video
footage, he observed [Lewis] with the victim inside the bar having
a conversation. A short while later, the two men walked to the
bathroom together and returned to the table where they were
seated. Detective Gibney then observed the victim exit the bar
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and described how [Lewis] pulled his hood over his head and
followed the victim outside, where the shooting occurred. [Lewis]
was then seen on the video running up the street, after the shots
were fired. Detective Gibney credibly testified that the person in
the video, identified as the shooter, was [Lewis]. . . .
Additionally, the jurors themselves watched the video
several times in the courtroom during the trial and then asked to
rewatch portions of the video during their deliberations.
Trial Court Opinion, 12/16/21, at 4 (citations to the record omitted). In
addition, the court noted that Lewis “admitted that he was at … Jazzland …
and that he talked to the victim inside the bar.” Id., at 5 (citation to the record
omitted).
While it probably would have been helpful to the Commonwealth if it
had utilized at least one eyewitness to the shooting at trial, the video evidence
and subsequent identification by the Detective were, in the absence of any
authority to the contrary, clearly sufficient to establish that Lewis was the
shooter. Lewis’s admission that he was there on the night in question, while
not conclusive, further bolsters the notion that he repeatedly shot the victim.
Applying our standard of review, the jury was free to believe or not believe
the Detective’s testimony. That testimony was juxtaposed against the video
recordings, which the jury observed multiple times prior to reaching its
conclusions. Therefore, cognizant that the Commonwealth was the verdict
winner, the evidence used was sufficient to identify Lewis as the perpetrator
of the offenses beyond a reasonable doubt, and he is due no relief.
In addressing Lewis’s weight of the evidence claim, the following
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principles govern our review. “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.” Commonwealth v. Clemens, 242
A.3d 659, 667 (Pa. Super. 2020) (citation omitted). A verdict will only be
reversed as against the weight of the evidence where the evidence is “so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021)
(citation omitted). The onus is on the factfinder to resolve both contradictory
testimony and questions of credibility, and we may not substitute our
judgment in its place. See Commonwealth v. Cramer, 195 A.3d 594, 600
(Pa. Super. 2018).
A motion for a new trial based on a weight-of-the-evidence claim is
addressed to the discretion of the trial court, and as such, we review only the
lower court's exercise of discretion in its determination and not the underlying
question of whether the verdict is against the weight of the evidence. See
Commonwealth v. James, 268 A.3d 461, 468 (Pa. Super. 2021). When
reviewing a trial court's ruling in this regard, 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, that had the opportunity to see
and hear the evidence presented. Delmonico, 251 A.3d at 837 (citation
omitted).
Again, absent citation, Lewis asserts that the lower court “failed to
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consider the simple fact that the only evidence linking [him] to the crime was
identification testimony from Detective Gibney that [he] was the other person
in the video with the victim.” Appellant’s Brief, at 15. Lewis emphasizes that
Detective Gibney’s lack of knowing who he was prior to watching the video
and the fact that the Commonwealth only presented four non-eyewitnesses to
testify meant that there was an incredible amount of evidence missing from
trial. See id.
While it does not appear that the trial court has specifically addressed
Lewis’s weight-based claim in its opinion, it implicitly found no validity to the
same when it denied his post-sentence motion. See Order, 9/22/21. Although
Lewis asserts what materially appears to be an identical identification-based
argument in his weight of the evidence claim, he still has provided no cogent
basis for this Court to conclude that the identification, itself, is problematic,
much less that a verdict rendered in his case shocks the conscience. In
addition, it is unclear as to the import of Detective Gibney’s lack of prior
experiences with Lewis.
While we have stated, supra, that Commonwealth’s case likely would
have been benefited using at least one eyewitness, there was no obligation or
necessity for it to proceed in that manner. Here, the Detective, deemed to be
credible, unequivocally made a positive identification of Lewis at all relevant
points in the various video tapings. The jury then reached its determination
predicated on the Detective’s testimony in tandem with the videos it observed.
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Later, the lower court, who was in the best position to see and hear the
evidence as it had been presented at trial, denied Lewis’s post-sentence
motion, which specifically identified a weight-based claim. Based on the
Detective’s clear identification and lack of authority provided by Lewis
establishing the contrary, we are unable to conclude that the verdict that was
reached constituted a shocking conclusion. Therefore, it was clearly not an
abuse of discretion for the court to deny Lewis relief in his post-sentence
motion, and his weight-based claim fails.
In his last issue, Lewis challenges the discretionary aspects of his
sentence. Like this memorandum’s other areas of analysis, for discretionary
sentencing claims, we rely on a well-established standard of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. An appellant must satisfy a four-part test to
invoke this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal;
(2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect[, see Pa.R.A.P. 2119(f)]; and (4) whether
there is a substantial question that the sentence
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appealed from is not appropriate under the
Sentencing Code.
****
A substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the sentencing
process. At a minimum, the Rule 2119(f) statement must
articulate what particular provision of the code is violated, what
fundamental norms the sentence violates, and the manner in
which it violates that norm.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations
omitted).
Looking at the record, Lewis filed a timely notice of appeal, filed the
requisite post-sentence motion to preserve this sentencing issue on appeal,
and, in his brief, he has included a facially appropriate concise statement
pursuant to Rule 2119(f). Accordingly, we proceed to determine whether he
has raised a substantial question.
Lewis avers that “the sentence imposed … is manifestly excessive such
that it constitutes too severe a punishment where [his] incarceration for an
aggregate term of 21 to 42 years fails to consider the gravity of the offense
as it relates to the victim and [his] rehabilitative needs[.]” Appellant’s Brief,
at 13. While, in this section, he provides no further detail as to how the court
failed to, inter alia, consider his rehabilitative needs, a claim that the court
failed to consider this statutory requirement has been held by this Court to
constitute a substantial question. See, e.g., Commonwealth v. Downing,
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990 A.2d 788, 793 (Pa. Super. 2010) (relying on the verbiage of 42 Pa.C.S.A.
§ 9721(b)).2
Lewis believes that the court failed to consider his rehabilitative needs
in conjunction with his asserted unlikelihood that he will reoffend. See
Appellant’s Brief, at 19. In addition, the lower court “could not consider the
gravity of the offense as it related to the impact on the life of the victim, as
the victim did not appear at either trial or for sentencing.” Id.
Our Sentencing Code establishes that:
the court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with … the
protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b). However, “[o]ur Supreme Court has determined that
where the trial court is informed by a pre-sentence report, it is presumed that
the court is aware of all appropriate sentencing factors and considerations,
and that where the court has been so informed, its discretion should not be
disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (citation omitted). While a sentencing court must state, on the record,
its reasons for imposing a sentence, that requirement can be satisfied “by
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2 Despite our finding that he has raised a substantial question, we stress that
Lewis’s bald and unsubstantiated assertion, lacking in any kind of
development as to how his sentence violated the Sentencing Code, could have
warranted a finding that he has failed to satisfy this precept. If we proceeded
in this manner, we would have been without jurisdiction to consider his
underlying claim.
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indicating that he or she has been informed by the pre-sentencing report; thus
properly considering and weighing all relevant factors.” Id. (citation omitted).
At sentencing, the court announced that it reviewed Lewis’s PSI report.
See Sentencing Hearing, 8/10/20, at 6. In its opinion, the court noted that
Lewis “has not challenged the pre-sentence report[] or the information
contained therein in any way.” Trial Court Opinion, 12/16/21, at 7.
We find that Lewis has not pierced the presumption that the court,
having reviewed his PSI, was aware of the relevant sentencing factors and
made the appropriate considerations prior to sentencing. Other than vague
insinuations about his age and the fact that the victim did not testify, he has
not delved into any particular area demonstrating that the court imposed
either an unreasonable or excessive sentence. Conversely, Lewis’s two
sentences fell within the standard or mitigated range of the sentencing
guidelines.
To the extent that Lewis challenges the ability for a court to impose
consecutive sentences, we note that courts generally have a great deal of
discretion to impose a sentence concurrently or consecutively. See, e.g.,
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011).
Absent any basis to conclude that the court abused its discretion in
sentencing, Lewis is, therefore, not entitled to any relief.
With all three of Lewis’s claims being without merit, we affirm his
judgment of sentence.
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Judgment of sentence affirmed.
President Judge Panella joins this memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2022
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