Com. v. Jones, D.

J-A02001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONTE JONES
Appellant No. 1879 EDA 2013
Appeal from the Judgment of Sentence May 10, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014635-2011
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 06, 2015
Appellant, Donte Jones, appeals from the judgment of sentence
entered May 10, 2013, by the Honorable Jeffrey P. Minehart, Court of
Common Pleas of Philadelphia County, following his conviction of murder in
the third degree and related offenses. We affirm.
While serving a sentence for murder in the first degree, Appellant,
along with co-defendant Sean Sullivan, was housed in Pod 2 of Block C at
the Curran-Fromhold Correctional Facility. On June 21, 2011, Sullivan got
into a dispute with the inmates in Cell 15, Aaron Young and Richard Gyton.
Sullivan threatened to settle the dispute later that night. Sullivan began to
recruit co-conspirators, including Appellant, to assist him. Later that day,
Sullivan, Appellant, and two other inmates went to Cell 15. Sullivan had an
J-A02001-15
improvised knife sticking out of his pants. Ultimately, however, prison
guards dispersed the group.
Over the next hour, Appellant and his friends huddled together in the
prison yard, while the Cell 15 inmates played basketball and then returned
to their cell. A few minutes later, a fight broke out among inmates waiting
to use the phone. Taking advantage of the confusion, Sullivan and two of
his cohorts ran to Cell 15 and stabbed Gyton and Young multiple times. A
friend of Gyton and Young heard the screams and ran towards their cell,
where one of Sullivan’s friends attacked him. Sullivan and company ran
towards the day room, where Appellant joined them. They ambushed
another prisoner, Earl Bostic, stabbing him nine times and killing him. One
corrections officer saw Appellant running from Bostic’s body. A search of
Appellant’s cell turned up eight homemade weapons.
Following a bench trial, the trial court convicted Appellant of murder in
the third degree, conspiracy to commit homicide, possession of an
instrument of crime, and possession of a prohibited offensive weapon. All of
the charges stemmed from the murder of Bostic. The trial court acquitted
Appellant of various charges stemming from the assaults on the other
inmates. On May 10, 2013, based upon Appellant’s prior first-degree
murder conviction, the trial court sentenced him to a second mandatory life
sentence for murder in the third degree, with concurrent sentences on the
remaining charges. This timely appeal followed.
Appellant raises the following issues for our review.
-2-
J-A02001-15
1. Were the verdicts of murder in the third degree, conspiracy to
commit murder of the third degree, possession of an
instrument of crime and possession of an offensive weapon,
not supported by sufficient evidence? Was the evidence
contradictory and conflicting and not sufficient to support the
verdicts?
2. Were the verdicts of murder in the third degree, conspiracy to
commit murder of the third degree, possession of an
instrument of crime and possession of an offensive weapon
against the weight of the evidence?
3. Did [the trial court] err in not holding a hearing and not
granting a new trial based on the after discovered evidence of
recantation by the Commonwealth witnesses, Tyrell Rivers
and Richard Gyton?
Appellant’s Brief at 5.
We review a challenge to the sufficiency of the evidence as follows.
The standard we apply when 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. 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. Furthermore, when reviewing a sufficiency
claim, our Court is required to give the prosecution the benefit of
all reasonable inferences to be drawn from the evidence.
-3-
J-A02001-15
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)
(citation omitted).
We note preliminarily that the Commonwealth contends Appellant has
waived his challenge to the sufficiency of the evidence in support of his
convictions. “In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant's Rule 1925(b) statement must state with
specificity the element or elements upon which the appellant alleges that the
evidence was insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344
(Pa. Super. 2013) (citation omitted). “Such specificity is of particular
importance in cases where, as here, the appellant was convicted of multiple
crimes each of which contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.” Id. (citation omitted).
In his Rule 1925(b) Statement of Errors Complained of on Appeal,
Appellant argues only that the evidence was insufficient to support his
convictions because “the evidence was extremely contradictory and
confusing.” Concise Statement, 7/2/13 at ¶1. Appellant fails to identify any
element of any of the crimes for which he was convicted that was not
established by sufficient evidence. We therefore find that Appellant has
failed to preserve his sufficiency claims on appeal. See Garland, supra.
-4-
J-A02001-15
Even if we were to review Appellant’s sufficiency claims, they would
not merit relief. Appellant essentially argues that his verdicts were
inconsistent because he was acquitted of the charges arising from the
assaults of prison inmates other than Bostic. We simply find no
inconsistency. Those charges arising out of the assaults of various other
inmates rest on facts and evidence different from that upon which
Appellant’s convictions were based. Thus, Appellant’s claim would still fail.
Appellant next argues that the verdicts were against the weight of the
evidence. See Appellant’s Brief at 37-41. We note that
[t]he finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses.
As an appellate court we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when “the figure of Justice totters on her
pedestal,” or when “the jury’s verdict, at the time of its
rendition, causes the trial judge to lose his breach, temporarily
and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.”
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)
(citations omitted).
-5-
J-A02001-15
Upon review, we find no abuse of discretion by the trial court in
determining that the verdicts were not against the weight of the evidence.
The trial court’s determinations are supported by the record, and the court
acted well-within its discretion to credit the consistent testimony of the
Commonwealth’s witnesses and not Appellant. See Commonwealth v.
Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (“[T]he 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.” (citation
omitted)). Thus, we find this claim to be without merit.
Lastly, Appellant argues that the trial court erred in denying his
request for a new trial on the basis of after-discovered evidence. In support
of his claim, Appellant relies upon two affidavits in which witnesses, Richard
Gyton and Tyrell Rivers, recant their statements to detectives implicating
Appellant in Bostic’s stabbing. See Appellant’s Brief, Exhibits B and C. To
obtain relief based on after-discovered evidence, Appellant must
demonstrate that the evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to
impeach the credibility of a witness; and (4) would likely result
in a different verdict if a new trial were granted.
-6-
J-A02001-15
Commonwealth v. Perrin, 108 A.3d 50, --- (Pa. Super. 2015)1 (citation
omitted).
In the instant case, Appellant’s after-discovered evidence claim is
merely cumulative of the testimony Gyton and Rivers gave at trial. As
astutely noted by the trial court, Gyton and Rivers had already effectively
recanted their prior statements, so that their purportedly newly discovered
testimony does not conflict with the testimony the witnesses offered at trial.
Although both witnesses initially indicated to detectives that they observed
Appellant stab Bostic, they refused to cooperate at trial and identify
Appellant as the attacker. See N.T., 2/27/130 at 144; N.T., 2/28/13 at 41.
Thus, as Gyton and Rivers never implicated Appellant in the prison attack at
trial, the supposed recantation affidavits do not satisfy the requirement that
the evidence would likely result in a different verdict if a new trial were
granted. Accordingly, Appellant’s after-discovered evidence claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
____________________________________________
1
As of March 26, 2015, page numbers were unavailable on Westlaw.
-7-