Com. v. Bush, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMIAH BUSH
Appellant No. 1731 EDA 2014
Appeal from the Judgment of Sentence of January 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0008142-2012
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 17, 2015
Jeremiah Bush appeals the January 30, 2014 judgment of sentence,
which was entered following his jury convictions of first-degree murder,
carrying a concealed firearm without a license, and possessing an instrument
of crime.1 The trial court sentenced Bush to life imprisonment without
parole on the murder conviction, and imposed no further sentences on the
remaining convictions. Before us, Bush challenges both the weight and the
sufficiency of the evidence to sustain his murder conviction. We affirm.
The learned trial court summarized the factual history of this case as
follows:
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1
18 Pa.C.S. §§ 2502(a), 6106, and 907, respectively.
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At trial, the Commonwealth presented the testimony of
Philadelphia Police Sergeant Steven Crosby, Philadelphia Police
Detectives Michael Rocks and William Kelhower, Philadelphia
Police Officers Robert Burrell, Ronald Weitman, Russell
Seiberlich, and Scott Pollack, Assistant Medical Examiner Dr.
Edwin Lieberman, as well as Lorna Wall, Clarence Milton, Kalil
Bell, and Robert Matthews. [Bush] testified on his own behalf.
Viewed in light most favorable to the Commonwealth as the
verdict winner, the evidence established the following.
[Bush], Clarence Milton, and Steven Brown were childhood
friends who engaged in drug[-]selling activities for several years
prior to 2006. As part of his drug operation, Steven Brown used
to provide drugs to Kareem Brown. On March 26, 2006, Steven
Brown was shot and killed. [Bush] and Milton had conversations
regarding Steven Brown’s death and street gossip indicated that
Kareem Brown was the shooter.
On September 20, 2006, [Bush] attempted to locate Kareem
Brown, in an attempt to exact revenge for the death of Steven
Brown. While looking for Kareem Brown, [Bush] encountered
Kareem Brown’s brother-in-law, the decedent[,] Leary Wall.
[Bush] demanded [that] Wall tell him where Kareem Brown
could be found and, when Wall did not or could not tell, [Bush]
shot him. [Bush] then left the area in a vehicle driven by an
individual named Qua.
At approximately 9:45 p.m. that same evening, Philadelphia
Police Detective Michael Rocks responded to a radio call on the
2100 block of Dover Street in Philadelphia. Upon arriving at the
scene, Rocks observed Wall lying on the highway, having been
shot four times. Wall was transported to Temple University
Hospital, where he was later pronounced dead. Two bullets were
recovered from Wall’s body, while seven nine millimeter
cartridge cases were recovered from the homicide scene. Both
recovered bullets were fired from the same firearm.
Some time following Wall’s shooting, an individual by the name
of “Bum” contacted [Bush’s] friend Milton in order to buy a
firearm. Milton contacted [Bush], who indicated that he had a
“dirty” gun to sell. [Bush] indicated that the firearm was “dirty”
because he had used it to shoot Wall and further detailed the
circumstances surrounding the shooting. [Bush] subsequently
sold Bum a black nine millimeter firearm for approximately
[$500.00].
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On July 12, 2007, [Bush] was arrested and charged for a
separate shooting that occurred on September 13, 2006, one
week prior to the shooting of Wall. On that date, police
responded to a reported shooting on the 1900 block of West
Norris Street in Philadelphia. Upon arriving at the scene, police
found Amin Payne and Timothy Fontaine, both suffering from
gunshot wounds. Payne was shot a total of seven times and
police recovered seven nine millimeter fired cartridge casings.
Charges against [Bush] were ultimately nolle prossed due to the
lack of cooperation of the witnesses.
In 2009, [Bush] was in custody in Delaware County Prison with
Robert Matthews as a cellmate. At some point, Payne, the
victim of the September 13, 2006 shooting, was escorted into
the cell block. [Bush] informed Matthews that he had shot
Payne seven times “over a beef” using a nine millimeter
handgun. Upon noticing [Bush], Payne alerted the prison
officials and was escorted from the block. At a later time, while
still in custody, [Bush] told Matthews that he had killed someone
with the same firearm that he had used to shoot Payne. [Bush]
thereafter informed Matthews of the circumstances of his
shooting Wall.
On July 30, 2010, Kalil Bell, a friend of [Bush], contacted the
Philadelphia Police through a letter stating that he was willing to
talk with police. Detective William Kelhower conducted an
interview with Bell on February 7, 2011, concerning the death of
Wall. In this interview, Bell stated that [Bush] had admitted to
Bell that [Bush] had shot Wall while attempting to locate Kareem
Brown.
On September 20, 2010, Mathews [sic] gave a statement to
police concerning what [Bush] had told him while in custody. On
November 8, 2011, Clarence Milton, [Bush’s] friend, provided a
statement to the police indicating that [Bush] confessed to killing
Wall during their discussion about the sale of the “dirty” gun.
Subsequent testing confirmed that the seven bullet casings
recovered from the scene of the homicide matched the seven
casings recovered a week prior to the homicide from the
shooting of Payne. An arrest warrant was issued for [Bush] on
February 6, 2012[,] and [Bush] was taken into custody two days
later, on February 8, 2012.
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Trial Court Opinion (“T.C.O.”), 9/12/14, at 1-4 (footnotes and citations to
notes of testimony omitted).
Following a jury trial, Bush was found guilty of the above-listed crimes
and sentenced to life imprisonment without parole on January 30, 2014. On
February 10, 2014, Bush filed a post-sentence motion, which the trial court
denied on May 14, 2014.
On June 11, 2014, Bush filed a notice of appeal to the this Court, and
the trial court immediately instructed Bush to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bush timely
filed a concise statement on July 2, 2014. On September 12, 2014, the trial
court filed an opinion pursuant to Pa.R.A.P. 1925(a) in response to Bush’s
concise statement.
Bush raises the following issues on appeal:
1) Is [Bush] entitled to an arrest of judgment on the charge of
[m]urder in the [f]irst [d]egree and all related charges where
there is insufficient evidence to sustain the verdict?
2) Is [Bush] entitled to a new trial on all charges where the
verdict on [m]urder in the [f]irst [d]egree and all related
charges is not supported by the greater weight of the
evidence?
Brief for Bush at 3.
In his first issue, Bush generally challenges the sufficiency of the
evidence developed by the Commonwealth to convict him of all charges.
Specifically, he contends that the Commonwealth adduced insufficient
evidence to prove he was the perpetrator of the crimes with which he was
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charged. Id. at 7. However, Bush only addresses the first-degree murder
conviction in his brief. Id. at 8-10. Accordingly, we review the sufficiency of
the evidence only as to that conviction.
When examining a challenge to the sufficiency of evidence:
The standard we apply . . . 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.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).
In order for a jury to convict Bush of first-degree murder, the
Commonwealth must establish that Bush committed an intentional killing.
18 Pa.C.S. § 2502(a). Intentional killing is defined as “[k]illing by means of
poison, or by lying in wait, or by any other kind of willful, deliberate and
premeditated killing.” 18 Pa.C.S. § 2502(d). “The use of a deadly weapon
on a vital part of the body is sufficient to establish the specific intent to kill.”
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Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007). “The chest and
abdomen house the human body’s chief circulatory and digestive organs, as
well as a network of vital arteries and veins which supply them and, thus,
are vital areas of the body.” Commonwealth v. Briggs, 12 A.3d 291, 307
(Pa. 2011).
Presently, Bush argues that the Commonwealth failed to prove beyond
a reasonable doubt that he was the perpetrator of the murder. Brief for
Bush at 7. Further, Bush argues that multiple witnesses at trial provided
unreliable testimony, which led to his conviction. Id. at 9. To that end,
Bush relies upon the general principle that was espoused in
Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), that where the
“evidence presented at trial when carefully reviewed in its entirety, is so
unreliable and contradictory that it is incapable of supporting a verdict of
guilty, and thus, is insufficient as a matter of law.” Id. at 1172. Bush
argues generally that the testimony elicited by multiple witnesses at trial
was so unreliable that the evidence was insufficient to support a guilty
verdict. Brief for Bush at 9-10. Specifically, Bush argues, “the two
witnesses, Clarence Milton and Robert Matthews, came forward only in order
to curry favor with law enforcement.” Id. at 9. Although this type of claim
typically implicates a challenge to the weight of the evidence, see
Commonwealth v. DeJesus, 860 A.2d 102, 107-108, (Pa. 2004), because
Bush raises his claim under Karkaria, a sufficiency case, we will review the
claim as a sufficiency challenge.
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In light of Bush’s limited sufficiency challenge, we need only review
the identity element of his convictions. As noted earlier, circumstantial
evidence is sufficient to establish the defendant’s identity as the perpetrator
of a murder. Commonwealth v. Santiago, 980 A.2d 659, 662 (Pa. Super.
2009). Indeed, circumstantial evidence itself is sufficient to prove any
element or all of the elements of criminal homicide. Id.Milton and Matthews both testified that Bush confessed to them that
he shot and killed Wall with a nine millimeter gun. Notes of Testimony
(“N.T.”), 1/28/2014, Vol. 2, at 81; N.T., 1/29/2014, Vol. 3, at 65-66.
However, even absent Milton and Matthews’ testimony, there was additional
testimony and evidence to prove beyond a reasonable doubt that Bush
murdered Wall. Detective William Kelhower testified that he interviewed
Kalil Bell on February 7, 2011, during which Bell said that Bush also told him
that he shot and killed Wall. N.T., 1/28/2014, Vol. 2, at 257-268. Although
there were inconsistencies in the evidentiary record, the testimony was not
“so unreliable and contradictory that it is incapable of supporting a verdict of
guilty, and thus, is insufficient as a matter of law.” Karkaria, 625 A.2d at
1172. Rather, there was ample evidence to enable the jury to find beyond a
reasonable doubt that Bush was the person who killed Wall. Consequently,
Bush’s first issue does not merit relief.
In his second issue, Bush also claims that the jury’s verdict was
against the weight of the evidence.
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An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court.
Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super.
2005), (citing Commonwealth v. Sullivan, 820 A.2d 795, 805–
806 (Pa. Super. 2003), (quoting Commonwealth v. Widmer,
744 A.2d 745, 751–752 (Pa. 2000))). The Pennsylvania
Supreme Court has explained that “[a]ppellate 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.” Widmer, 744 A.2d at 753 (citation omitted).
To grant a new trial on the basis that the verdict is against the
weight of the evidence, this Court has explained that “the
evidence must be ‘so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.’” Sullivan, 820 A.2d
at 806 (quoting Commonwealth v. La, 640 A.2d 1336, 1351
(Pa. Super. 1994)).
[This Court shall not undertake to reassess credibility of
witnesses, as] it is well settled that we cannot substitute our
judgment for that of the trier of fact. Commonwealth v.
Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the
finder of fact was free to believe the Commonwealth’s witnesses
and to disbelieve the witness for the Appellant. See
Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the
finder of fact is free to believe all, none, or part of the testimony
presented at trial).
Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010)
(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009))
(citations modified).
To support his weight of the evidence claim, Bush essentially reiterates
his sufficiency arguments, and contends that the jury should have accepted
his account of the events in question and rejected the testimony of the
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Commonwealth’s witnesses.2 Again, Bush assails the credibility of both
Milton and Matthews’ testimony, particularly the testimony identifying him as
the perpetrator of the murder. At trial, Bush’s attorney cross-examined both
Milton and Matthews, giving the jury ample opportunities to assess their
credibility and bias. See N.T., 1/28/2014, Vol. 2, at 96-138; N.T.,
1/29/2014, Vol. 3, at 77-113. Having heard the testimony and observed the
demeanor of witnesses, including during cross-examination, the jury was
free to believe, or not to believe, the testimony of those two critical
witnesses. Having reviewed the record, we conclude that the record
supports the jury’s verdict, and we discern no basis upon which to conclude
that the trial court abused its discretion by concluding that the jury’s verdict
did not shock the court’s conscience.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2015
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2
Pursuant to Pa.R.Crim.P. 607(A)(3), Bush properly raised his weight
challenge in his post-sentence motion.
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