Com. v. Smith, J. ( 2014 )


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  • J. S28008/14
    NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P. 65.37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
    -9-
    

Document Info

Docket Number: 2791 EDA 2012

Filed Date: 8/11/2014

Precedential Status: Precedential

Modified Date: 10/30/2014