Com. v. Smith, 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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JERMAINE SMITH, : No. 2791 EDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, September 18, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009568-2010
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 11, 2014
Jermaine Smith appeals from the judgment of sentence of
September 18, 2012, following his conviction of first-degree murder and
On the evening of November 13, 2009, appellant, also known as
identified appellant as the shooter. In addition, Thomas
attempted to drive away but crashed his van and was declared dead at the
scene. At trial, both Broady and Spence recanted and refused to identify
* Retired Senior Judge assigned to the Superior Court.
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appellant as the shooter. The Commonwealth was permitted to introduce
hearing testimony, as substantive evidence of appe
Following a jury trial, appellant was found guilty of murder in the first
degree and PIC. Appellant received a sentence of life imprisonment without
parole for first-degree murder, and no further penalty for PIC.
Post-sentence motions were denied, and this timely appeal followed.
Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; however, we
are without the benefit of a trial court opinion since the trial judge who
Temin, is no
longer on the bench.
post sentence motion for a new trial on the grounds that the verdicts of
guilty as to first degree murder and [PIC] were against the weight of the
A weight of the evidence claim concedes
that the evidence is sufficient to sustain
the verdict, but seeks a new trial on the
ground that the evidence was so
one-sided or so weighted in favor of
acquittal that a guilty verdict shocks
Commonwealth v. Lyons, Pa. , 79 A.3d
1053, 1067 (2013).
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The Pennsylvania Supreme Court has
reiterated the proper standard of review of a weight
claim as follows:
A motion for a new trial based on a claim
that the verdict is against the weight of
the evidence is addressed to the
discretion of the trial court. A new trial
should not be granted because of a mere
conflict in the testimony or because the
judge on the same facts would have
arrived at a different conclusion. Rather,
facts, certain facts are so clearly of
greater weight that to ignore them or to
give them equal weight with all the facts
contrary to the evidence as to shock
new trial is imperative so that right may
when presented with a weight of the
evidence claim is distinct from the
standard of review applied by the trial
court:
Appellate review of a weight
claim is a review of the
exercise of discretion, not of
the underlying question of
whether the verdict is against
the weight of the evidence.
Because the trial judge has
had the opportunity to hear
and see the evidence
presented, an appellate court
will give the gravest
consideration to the findings
and reasons advanced by the
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trial judge when reviewing a
that the verdict is against the
weight of the evidence. One
of the least assailable
reasons for granting or
denying a new trial is the
the verdict was or was not
against the weight of the
evidence and that a new trial
should be granted in the
interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or
denying a motion for a new trial based
on a challenge to the weight of the
evidence is unfettered. In describing the
have explained:
the exercise of judgment,
wisdom and skill so as to
reach a dispassionate
conclusion within the
framework of the law, and is
not exercised for the purpose
of giving effect to the will of
the judge. Discretion must
be exercised on the
foundation of reason, as
opposed to prejudice,
personal motivations, caprice
or arbitrary actions.
Discretion is abused where
the course pursued
represents not merely an
error of judgment, but where
the judgment is manifestly
unreasonable or where the
law is not applied or where
the record shows that the
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action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, Pa. , 64 A.3d
1049, 1054 1055 (2013) (citations omitted)
(emphasis in original).
Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014).
ight claim is hampered by the
fact that there is no trial court opinion on the issue. The trial court denied
-sentence motions without comment. Nevertheless, we have
no hesitation in concluding that the trial court did not abuse its discretion in
evidence.
Appellant argues that they only gave these statements after prolonged
questioning. In addition, both Spence and Broady were on probation and
contends that Spence and Broady were coerced into implicating him.
These were arguments for the jury. As stated above, appellant does
not challenge the admissibility of their prior inconsistent statements under
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the Brady/Lively line of cases.1 Detective Kevin Judge testified that Spence
was permitted to use the bathroom and was provided food and drink.
(Notes of testimony, 9/13/12 at 158.) Detective Judge characterized Broady
as cooperative. (Id. at 171.) Detective Judge specifically denied coercing or
threatening either Broady or Spence. (Id. at 174.) Appellant complains
that the interviews were not videotaped; however, Detective Judge
explained that witnesses are not typically videotaped. (Id. at 163.)
Appellant also points out that police got the names of potential
witnesses, including Broady and Spence, from a confidential informant
regardless of the source, it is undisputed that Broady and Spence were at
the scene and gave statements implicating appellant as the shooter. Broady
stated that he saw appellant shooting into the van through the front
passenger window. (Notes of testimony, 9/11/12 at 216.) Broady told
police that he saw appellant turn and tuck a gun into his jacket after the
shooting, and then walk off towards the alleyway next to the Chinese store.
(Id. at 217-218.) Broady also testified at the preliminary hearing that he
saw flashes of gunfire and the van pull away. (Id. at 234.) Appellant was
1
Commonwealth v. Brady, 507 A.2d 66, 68 (Pa. 1986); Commonwealth
v. Lively, 610 A.2d 7, 9-10 (Pa. 1992); P.R.E. 803.1 (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 and the
declarant is available for cross-examination).
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standing there and then zipped up his jacket and ran through the alleyway.
(Id.)
Spence told police that he was sitting in the back of the van when he
heard gunshots and saw flashes coming from the gun. (Notes of testimony,
9/12/12 at 250.) Spence also saw a black jacket. (Id.) After he drove off,
Id.) After the van crashed a
Id.) Both Spence and Broady were familiar with
appellant and picked out his photograph.
Appellant argues that police failed to pursue other possible leads and
victim, Nesmith, was a drug dealer with many enemies. Appellant also
complains that police failed to get a photo identification from an independent
Id.) Wilson was a truck driver and
witnessed the shooting.
trial testimony and credit their previous statements to police, as was their
prerogative. As far as Wilson, he told police he saw a black male wearing a
blue hat and jacket leaning into the passenger side window of the van.
(Notes of testimony, 9/13/12 at 189-190.) Wilson saw flashes of gunfire.
(Id. at 142.) However, Wilson was driving on the opposite side of the street
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and was unable to make an identification. (Id. at 190-191.)
Detective Judge testified that Wilson did not see the shoot Id. at
143.) Detective Judge also testified that he never investigated any other
suspects because the investigation did not lead him anywhere else. (Id. at
192.)
Finally, appellant alleges that the Commonwealth committed
prosecutorial misconduct during its closing argument by arguing that Spence
22.) Appellant attempts to tie this into his weight of the evidence claim by
arguing that it demonstrates just how weak
that the prosecuting attorney had to resort to such tactics. However,
appellant concedes that the trial judge gave strong cautionary instructions to
the jury, telling them to disregard any facts not in evidence. (Notes of
testimony, 9/14/12 at 91, 97.) Appellant admits that the alleged
at 22.)
For these reasons, we determine the trial court did not abuse its
ion for a new trial based on the weight
testimony and instead credit their prior statements to police, as well as
See Commonwealth v. Brown,
52 A.3d 1139 (Pa. 2012) (criminal convictions which rest solely on prior
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inconsistent statements of witnesses who testify at trial do not violate due
process, as long as the prior inconsistent statements, taken as a whole,
establish every element of the offense charged beyond a reasonable doubt,
and the finder-of-fact could reasonably have relied upon them in arriving at
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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