Com. v. King, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEROME KING :
:
Appellant : No. 164 EDA 2019
Appeal from the Judgment of Sentence Entered November 9, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009432-2017
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 16, 2019
Appellant, Jerome King, appeals from the judgment of sentence
following his conviction by a jury of first-degree murder, firearms not to be
carried without a license, carrying firearms in Philadelphia, and possession of
an instrument of crime (“PIC”).1 We affirm.
An information was filed on November 7, 2017, and trial occurred
November 5–9, 2018. Following Appellant’s convictions of the above crimes,
the trial court sentenced Appellant on November 9, 2018, to life in prison for
murder and did not impose further penalty on the remaining convictions.
Appellant filed a post-sentence motion for a new trial assailing the weight of
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(a), 6106(a)(1), 6108, and 907, respectively.
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the evidence on November 13, 2018, which the trial court denied on December
26, 2018. Appellant filed this timely appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
The facts of the crime are as follows. Philadelphia Police Officer
Lacarmela Fortune responded to a radio call on June 20, 2017, at 10:36 a.m.
that a male had been shot at the intersection of 29th Street and Cecil B. Moore
Avenue. N.T., 11/6/18, at 62–63. When Officer Fortune arrived, she found a
burgundy car smashed into a black car, which crashed into a grey car. Id. at
65–66. An unconscious man, later identified as Marvin Brunson (“Victim”),
was slumped over on the front driver’s seat of the burgundy car, with his head
leaning “almost out the [driver’s] window.” Id. at 67–68. There were no
other occupants in the automobile. Id. at 65, 68. Victim had blood on his
chest, and he still had his foot on the gas with the vehicle “revving.” Id. at
68. A second police car “pulled up right away,” and Officer Fortune testified,
“[W]e opened the door. We got the male out of the vehicle and put him into
the other unit’s vehicle and they took him to the hospital.” Id. at 67.
Victim was pronounced dead at 10:49 a.m. at Hahnemann Hospital.
N.T., 11/6/18, at 89, 96. Dr. Khalil Wardak, Philadelphia Associate Medical
Examiner, testified Victim had a “gunshot wound to the right side of the chest,
a gunshot wound to the upper posterior shoulder, back of the shoulder, a
gunshot wound to the back of the heart, a gunshot wound to the back of the
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forearm, and a gunshot wound to the left forearm.” N.T., 11/8/18, at 28. Dr.
Wardak determined that the gunshot wound to the chest was fatal. Id. at 29.
Philadelphia Police Officer Christopher Reed of the Crime Scene Unit
testified that he arrived at the scene at 11:45 a.m. on June 20, 2017. N.T.,
11/6/18, at 180. Officer Reed collected six .45 caliber cartridge casings; three
casings were on the street, and three were in Victim’s vehicle. Id. at 186–
188, 196. Police Officer John Cannon of the Philadelphia Police Department’s
Firearms Identification Unit testified that all six casings were fired from the
same .45 caliber semiautomatic weapon. N.T., 11/7/18, at 169. Two bullets,
also .45 caliber, which were recovered from Victim’s body, were each fired
from the same weapon, but the firearms expert could not determine whether
they were fired from the same firearm as the casings.2 Id. at 173–174, 178.
In addition, police utilized trajectory rods to determine the path of the bullets.
Id. at 189. Police were able to determine that the direction of travel of the
bullets was “from the rear of the vehicle on the passenger’s side through to
the driver’s seat.” Id.
Police interviewed Appellant’s former girlfriend, Tyera Chapman, three
months after the murder and viewed digital surveillance videos from the area.
N.T., 11/6/18, at 148–175; 11/7/18, at 25, 43–45. Philadelphia Detective
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2 “The only way we can make an association between” bullets and casings is
“if we have [the] firearm.” N.T., 11/7/18, at 174. Police did not recover the
murder weapon.
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Billy Golphin testified that during the interview, Ms. Chapman initially denied
knowing anything about the murder but never told police she wanted to leave.
N.T., 11/8/18, at 88–89, 97. After thirty or forty minutes, Ms. Chapman gave
a videotaped statement. Id. at 61–62. Detective Golphin read the
memorandum he wrote following his interview of Ms. Chapman:
On 9/14/2017, Tyera Chapman, 27-year-old black female, was
brought into the homicide unit—
* * *
. . . after members of the homicide fugitive unit and U.S. Marshals
conducted a search of her residence and attempted to apprehend
homicide fugitive [Appellant]. Chapman was placed in Interview
Room B and Detective Tolliver and Golphin spoke with her in
reference to [Appellant]. Chapman admitted that she and
[Appellant] were in a romantic relationship and that she was
aware that [Appellant] was on the run from the police.
Chapman was asked if [Appellant] told her what he was on
the run from. She stated he told her that he left the store at 28th
and Cecil B. Moore Avenue and someone . . . wearing the same
clothing he was wearing killed somebody at 29th Street. She then
stated that [Appellant] told her some girl called this guy and told
him the boy’s been looking—the boy told him the boy he’s been
looking for was on the corner, and the guy tied his hoody tight
and ran up and shot the guy.
Detective Golphin told Chapman the explanation didn’t
make sense and that [Appellant] called Chapman shortly before
and after the homicide. Chapman stated that she didn’t want to
be a rat and she wasn’t going to sign her name to anything. She
said he did it. Chapman stated [Appellant]—
The Court: Wait. “She then said.”
[Detective Golphin]: He did it. Chapman stated [Appellant] told
her someone told him the boy he had a problem with was on the
corner. [Appellant] told her he tied his hoody up tight and ran
upon him and killed him.
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"Detective Golphin and Chapman—asked Chapman if she
would consent to be videotaped and she agreed.
N.T., 11/8/18, at 110–111. Ms. Chapman refused to sign the standard
document “created after someone is interviewed on video” because “[s]he
didn’t want to be involved” and “didn’t want to be known as a rat.” Id. at 60–
62. The videotaped statement was played for the jury. Id. at 65.
Police also examined video surveillance from the crime scene. The trial
court summarized the video compilation, which was submitted with the trial
court’s Pa.R.A.P. 1925(a) opinion and was shown to the jury, as follows:
The parties stipulated that Detective Thorsten Lucke was an
expert in the field of recovery and analysis of digital surveillance
video. (November 8, 2018, 24). Detective Lucke testified that he
trained at the Federal Bureau of lnvestigation Forensic Video
Image Audio Analysis Unit, in Quantico, VA. He processed more
than 1,000 crime scenes recovering surveillance video as well as
processing, analyzing these videos for court presentations and
news releases. Over the previous six or seven years, he trained
federal, state and local agents.
* * *
. . . . Surveillance tapes were recovered from three commercial
businesses, one apartment building, a police camera, and a public
transit bus. (N.T. November 7, 2018, 28).
* * *
. . . . Detective Lucke created a “video compilation” from different
angles, locations, times and systems. Generally, the scenes are
shown in chronological order. (N.T. November 7, 2018, 30).
* * *
At 10:20 a.m., the camera at 2800 Cecil B. Moore Avenue
shows a black male exit a building and place something in the
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garbage. The male is wearing dark jeans gathered at the ankle,
a white T-shirt with a colorful logo, a gray hoodie draped over his
shoulder, black sneakers with white trim, and a lanyard hanging
out of his pocket. (M17-146 Surveillance Video Compilation,
1:30). Multiple cameras capture the male walking north on 28th
Street, making a left on Cecil B. Moore Ave, and then a right onto
Newkirk Street. (2:50).
At 10:24 a.m., the male can be seen placing an item onto
the roof of a parked vehicle on Newkirk Street. (9:05). At 10:26
a.m., the male is seen again on Newkirk Street[] walking back
toward Cecil B. Moore Avenue, [and] the male no longer has the
gray hoodie draped over his shoulder. (9:37). Cameras pick the
male up on Cecil B. Moore Avenue at 10:27 a.m., the lanyard that
was previously hanging out of his pocket is now around his neck.
(11:14).
From 10:27 until 10:29 a.m., surveillance cameras inside
the supermarket located at 1700 North 28th Street (at Cecil B.
Moore Avenue) capture the male shopping. (13:13). As part of
the compilation, the footage is frozen twice, focused on the male’s
face, and photographs of [Appellant] were superimposed for
comparison purposes. The picture of the male and the picture of
[Appellant] both show full beards. (12:22, 13:58).
Also occurring at 10:27 a.m., and recorded on camera, a
red vehicle later identified as [Victim’s] parks on Cecil B. Moore
Avenue—in between Newkirk Street and 29th Street. (15:20).
Upon leaving the convenience store, the male walks back toward
Newkirk Street.
As the male is walking toward Newkirk Street he walks into
the street on Cecil B. Moore Ave, and leans out into traffic as if to
get a better view of something up ahead. (17:15). The male
continues to stand on the side of the road staring in the direction
of [Victim’s] vehicle for at least a minute. (18:15). At 10:30
a.m., the male runs up Newkirk Street, towards the vehicle [on
which] he had previously placed the gray item. (19:20). At 10:31
a.m., a male wearing dark jeans gathered at the ankle, a white t-
shirt with a logo or a lanyard, an un-zipped gray hoodie, and black
sneakers with white trim, runs past Steak & All (a restaurant
located between Newkirk Street and 29th Street on Cecil B. Moore
Avenue[)]. (23:19). A freeze frame of the male running is
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compared to two other freeze frames of the male shown earlier in
the video. (23:49).
At 10:31:47 a.m., the male wearing the gray hoodie runs
up on [Victim’s] vehicle. (25:09). It is unclear what the male is
doing, but seven seconds later a previously unseen individual
begins to run away from [Victim’s] vehicle and a car drives off
rapidly. (26:17). At 10:32:05 a.m., the male in the gray hoodie
walks away from [Victim’s] vehicle. (28:02). At 10:32:15 a.m.,
[Victim’s] vehicle drives in front of a SEPTA bus, and crashes into
a parked car on 29th Street. (30:10, 30:36).
Trial Court Opinion, 3/19/19, at 7–9.
Based on Ms. Chapman’s statements to police and the video surveillance
from the crime scene, inter alia, police arrested Appellant for Victim’s murder
on September 14, 2017. While Ms. Chapman testified at trial, and the
Commonwealth played the video of the police interview with her, Ms.
Chapman did not appear voluntarily, and she denied the veracity of her
previous videotaped statement to police. N.T., 11/6/18, at 130, 133–136.
Appellant raises the following issues on appeal:
A. Was the evidence insufficient to sustain the convictions
because the Commonwealth failed to prove that Appellant
was the person who shot and killed the victim?
B. Did the trial court commit an abuse of discretion by not
finding that the verdicts were against the weight of the
evidence because the video compilation was not
authenticated in accordance with Pa.R.E. 901?
C. Did the trial court commit an abuse of discretion by not
finding that the verdicts were against the weight of the
evidence because the video of the shooting failed to clearly
show that Appellant was the shooter. Tyera Chapman
disavowed what was in her stat[e]ment, and in any event,
her testimony about what Appellant allegedly related to her
was not inculpatory?
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Appellant’s Brief at 3.
Appellant’s first issue assails the sufficiency of the evidence. In
reviewing the sufficiency of the evidence, we must determine whether the
evidence admitted at trial and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a reasonable
doubt. Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019).
“[T]he facts and circumstances established by the Commonwealth need not
preclude every possibility of innocence.” Commonwealth v. Colon-Plaza,
136 A.3d 521, 525–526 (Pa. Super. 2016) (quoting Commonwealth v.
Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the
province of the fact-finder to determine the weight to be accorded to each
witness’s testimony and to believe all, part, or none of the evidence.
Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015). The
Commonwealth may sustain its burden of proving every element of the crime
by means of wholly circumstantial evidence. Commonwealth v. Mucci, 143
A.3d 399, 409 (Pa. Super. 2016). Moreover, as an appellate court, we may
not re-weigh the evidence and substitute our judgment for that of the fact-
finder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).
Appellant asserts in conclusory fashion that the evidence presented at
trial did not prove that Appellant was the person who shot Victim. Appellant’s
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Brief at 19–20. Specifically regarding the issue of identity, our Supreme Court
has stated:
Proof beyond a reasonable doubt of the identity of the accused as
the person who committed the crime is essential to a conviction.
The evidence of identification, however, needn’t be positive and
certain in order to convict, although any indefiniteness and
uncertainty in the identification testimony goes to its weight.
Direct evidence of identity is, of course, not necessary and a
defendant may be convicted solely on circumstantial evidence.
Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (internal
citations and quotation marks omitted).
Appellant maintains that the video evidence does not “show the face of
the shooter” nor does it “show [A]ppellant armed with a weapon[,] and police
failed to uncover any ballistic evidence that could be connected to the
shooting.” Appellant’s Brief at 18–19. Appellant did not raise these particular
objections in his Pa.R.A.P. 1925(b) statement. In that statement, instead,
Appellant stated: “The evidence was insufficient to sustain the convictions
because the Commonwealth failed to prove that Appellant was the person who
shot the victim given that the identification was based solely on the clothes
worn by the shooter and the law is clear that convictions based solely on
clothing cannot stand.” Statement of Matters Complained of on Appeal,
2/25/19, at 1. Thus, in his appellate brief, Appellant presents a new theory
with regard to the sufficiency of the evidence of Appellant’s identity as the
shooter. See Commonwealth v. Jones, 191 A.3d 830, 834–835 (Pa. Super
2018) (finding waiver where defendant challenged identification testimony on
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appeal under different theories than those previously addressed to trial court
in Pa.R.A.P. 1925(b) statement because trial court did not have opportunity
to review those theories). Indeed, issues not included in a court-ordered
Pa.R.A.P. 1925(b) statement are deemed waived on appeal. Pa.R.A.P.
1925(b)(4)(vii). We conclude that the sufficiency-of-the-evidence issue as
raised in Appellant’s appellate brief is waived.
In the alternative, we note that the trial court addressed the sufficiency-
of-the-evidence claim, as it was defined in Appellant’s Rule 1925(b)
statement, as follows:
The conviction of [Appellant] was not based sole[l]y on his
clothing. He made an admission against interest to Tyera
Chapman, his former girlfriend. [Appellant] told her that he
received a telephone call from a female who informed him that
the guy he was supposed to be beefing with, was out there.
[Appellant] told Ms. Chapman that he did what he had to do. He
said that he tied the hoodie tight. He wasn’t going to worry about
it. Nobody would care. In September 2017, [Appellant] stopped
by her house, told her that he was wanted by the police and that
he would not turn himself in.
Detective Dunlap’s cell phone analysis put [Appellant] within
a square mile of the scene of the shooting at the time of the
shooting. [Appellant] was associated with premises 1755 North
Newkirk Street, which is about two blocks from the scene of the
shooting. [Appellant] spent about 80 percent of his time in that
neighborhood.
Detective Lucke’s video compilation[] showed a male in the
neighborhood at the time of the shooting. The male wore dark
sneakers with white trim, dark jeans, a white T-shirt with a logo
on the front. In different frames the male carried or wore a
hoodie, but in other frames the male did not have a hoodie.
Minutes before the shooting, this male was videotaped inside a
grocery store. The defense agreed that the male in the
supermarket was the [Appellant]. Twice [Appellant’s] photograph
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was superimposed on the video so that the jury could compare
the face of the male with the face of [Appellant]. Both [Appellant]
and the male in the video had full beards. The male, with the
hoodie tied over his head and part of his face was caught on
videotape running away from the scene of the shooting.
[Appellant] had told Ms. Chapman that he “tied the hoodie tight
and that was it.”
Trial Court Opinion, 3/19/19, at 13–14. The jury found that the male in the
video was [Appellant], Trial Court Opinion, 3/19/19, at 13–14, and thus, the
trial court opined that the verdict was not based solely on the clothing worn
by Appellant.
Even if Appellant had properly preserved this alternative basis of his
sufficiency claim to the trial court, we would conclude it lacks merit. We
remind Appellant that the Commonwealth may sustain its burden by means
of wholly circumstantial evidence, Mucci, 143 A.3d at 409, and as an appellate
court, we may not re-weigh the evidence and substitute our judgment for that
of the fact-finder. Rogal, 120 A.3d 994. This Court has stated:
[W]e must emphasize that the Commonwealth may sustain its
burden of proof by means of wholly circumstantial evidence.
Commonwealth v. Lehman, 820 A.2d 766, 772
(Pa.Super.2003). Furthermore, even if the Commonwealth
presented only circumstantial evidence and offered no positive
identification of the assailant, we may not weigh the evidence and
substitute our judgment for the fact-finder as long as the evidence
was sufficient to prove Appellant's guilt. Id.Commonwealth v. Robertson, 874 A.2d 1200, 1206 (Pa. Super. 2005).
Appellant’s cell phone records placed him in the area of the shooting at the
time of the shooting. Detective James Dunlap, an expert in historical cell-site
analysis, in which cellular telephone calls and texts are traced, reviewed
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records for a telephone number registered to Appellant and determined that
on the date of the murder, between 9:41 a.m. and 10:39 a.m., Appellant’s
cellular telephone was within the square mile covering the crime scene.
During the same time frame, calls made to Appellant’s cell phone went
unanswered. N.T., 11/7/18, at 200. Ms. Chapman’s statements to police,
although she attempted to repudiate them, were corroborated by the
surveillance video footage.
Viewed through the lens of the proper legal standard regarding the
sufficiency of the evidence, we would reject Appellant’s claim. Identification
evidence “need not be positive and certain to sustain a conviction.”
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011). Our review of
the entire record, with due consideration of all of the circumstantial evidence
presented in the light most favorable to the Commonwealth as verdict winner,
confirms there was sufficient evidence to establish Appellant’s identity and
sustain Appellant’s convictions.
Appellant also challenges the weight of the evidence. We have held that
a motion for a new trial on the grounds that the verdict is contrary to the
weight of the evidence “concedes that there is sufficient evidence to sustain
the verdict.” Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super.
2016) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).
Our Supreme Court has described the standard applied to a weight-of-the-
evidence claim as follows:
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The decision to grant or deny a motion for a new trial based
upon a claim that the verdict is against the weight of the evidence
is within the sound discretion of the trial court. Thus, “the function
of an appellate court on appeal is to review the trial court’s
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence.” An appellate court may not overturn the trial
court’s decision unless the trial court “palpably abused its
discretion in ruling on the weight claim.” Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is “so contrary to the evidence as to shock
one’s sense of justice.”
Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (quoting
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations
omitted)). A trial court’s determination that a verdict was not against the
interest of justice is “[o]ne of the least assailable reasons” for denying a new
trial. Colon–Plaza, 136 A.3d at 529 (quoting Commonwealth v. Clay, 64
A.3d 1049, 1055 (Pa. 2013)). 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. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (quoting Widmer, 744 A.2d
at 751–752). “[W]e do not reach the underlying question of whether the
verdict was, in fact, against the weight of the evidence . . . . Instead, this
Court determines whether the trial court abused its discretion in reaching
whatever decision it made on the motion.” Williams, 176 A.3d at 312.
Appellant’s second issue, assailing the weight of the evidence because
the video evidence was not properly authenticated, is waived. In his post-
sentence motion, Appellant asked the trial court to grant him a new trial based
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upon the weight of the evidence. A challenge to the weight of the evidence
must first be raised at the trial level “(1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.” Williams, 176 A.3d at 312 (citing
Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017)). We note
that while Appellant challenged the weight of the evidence in his May 9, 2016
post-sentence motion, that motion merely generically states, “The guilty
verdicts were contrary to the weight of the evidence and should be reversed
in the interest of justice.” [Appellant’s] Post-Sentence Motion for a New Trial,
11/13/18, at 2. In the Memorandum of Law in support of the post-sentence
motion, Appellant asserts only that it was unclear in the video evidence that
Appellant was the person therein, there was no eyewitness to the shooting,
and no forensic link between Appellant and the crime. Memorandum of Law,
11/13/18, at 10–11. The post-sentence motion assailing the weight of the
evidence did not include a challenge to the authentication of the video
compilation.
Pa.R.Crim.P. 720 provides that the filing of a post sentence motion is
optional. The comment to the rule makes clear that “the failure to brief or
argue an issue in the post-sentence motion would not waive that issue on
appeal as long as the issue was properly preserved, in the first
instance, before or during trial.” Pa.R.Crim.P. 720 cmt at Optional Post-
Sentence Motion (emphasis added). In his brief, Appellant wholly failed to
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cite to the record regarding his preservation of the issue at trial. Our
independent review of the record reveals that the video compilation was
marked for identification and played for the jury at trial without any objection
by Appellant. N.T., 11/7/18, at 32. “Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
We conclude Appellant’s claim regarding authentication of the video evidence
is waived because Appellant did not challenge it in his Rule 1925(b) statement
and did not object to the evidence at trial.
Appellant’s final claim that the verdict is against the weight of the
evidence “because the video of the shooting failed to clearly show that
[A]ppellant was the shooter, Tyera Chapman disavowed what was in her
statement, and . . . her testimony about what [A]ppellant allegedly related to
her was not inculpatory,” Appellant’s Brief at 26, parrots the argument in his
sufficiency claim and is akin to the weight claim asserted in Appellant’s
Memorandum of Law in support of his post-sentence motion. The four-
paragraph argument in the brief is devoid of any reference to the record.
Appellant does not advise what was in Ms. Chapman’s statement, where she
“disavowed” it, or what Appellant “allegedly related to her.” Appellant’s Brief
at 26–27. Despite these shortcomings, we address the issue in reliance upon
the trial court’s opinion rejecting this contention, as follows:
At trial, Tyera Chapman repudiated her prior recorded
statement given to Detectives Golphin and Tolliver. She testified
that she did not remember anything about the killing, that she
previously lied to police, and that she was afraid for herself, her
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son and [Appellant]. Her videotaped statement to the Detectives
Golphin and Tolliver was properly admitted as substantive
evidence.
Pertinent to our review of this issue, we are
mindful that “a prior inconsistent statement may be
offered not only to impeach a witness, but also as
substantive evidence if it meets additional
requirements of reliability.” Commonwealth v.
Carmody, 799 A.2d 143, 148 (Pa. Super. 2002) (citing
Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7, 9–
10 (1992); Pa.R.E. 803.1).
The test is a two-part inquiry: 1) whether the
statement is given under reliable
circumstances; and 2) whether the declarant is
available for cross-examination. With respect to
the first prong, that the statement is given
under reliable circumstances, our Supreme
Court has deemed reliable only certain
statements; among them is a statement that is
“reduced to a writing and signed and adopted
by the witness.” Lively, 610 A.2d at 10; Pa.R.E.
803.1(1). With respect to the second prong,
cross-examination, the inconsistent statement
itself must be the subject of the cross-
examination in order to satisfy the test.
Carmody, 799 A.2d at 148 (some internal citations
and footnote omitted). See also Lively, 610 A.2d at
10 (providing prior inconsistent statement is
“demonstrably reliable and trustworthy” where
statement “had been reduced to a writing signed and
adopted by the witness; or a statement that is a
contemporaneous verbatim recording of the witness’s
statements”).
Commonwealth v. Enix, 192 A.3d 78, 81–82 (Pa. Super. 2018).
The jury heard Ms. Chapman’s recantation, and viewed the
video interview, in which she stated that she had been treated
“fine” when she was at the homicide unit and that she had the
opportunity to use the bathroom and get water. The jury made a
determination as to her credibility and accepted her testimony as
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true. The jury determined that what [Appellant] told Ms.
Chapman was inculpatory.
When a trial court evaluates 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.” Commonwealth v. Clay, 619
Pa. 423, 64 A.3d 1049, 1054-55 (2013) (citations
omitted).
Commonwealth v. Clemons, [200 A.3d 441, 463 (Pa. 2019)].
Nothing about this verdict shock’s the conscience.
Trial Court Opinion, 3/19/19, at 16–17.
Even if Appellant is correct that Ms. Chapman’s prior statement was
contradictory, Appellant would not be entitled to a new trial. Questions
regarding a witness’s prior inconsistent statement are “classic issues of
credibility to be decided by the jury.” Commonwealth v. Sanchez, 36 A.3d
24, 40 (Pa. 2011). The jury concluded that Appellant was the man depicted
at the end of the surveillance video compilation. The man in the video was
dressed identically to Appellant, both men had the same facial hair, build, and
stature, and Ms. Chapman confirmed, like the man in the video, Appellant had
reported that he pulled his “hoodie tight.” We cannot say that the trial court
abused its discretion in ruling that the verdict did not shock the conscience.
Williams, 176 A.3d at 312.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/19
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