Com. v. Brown, D. ( 2019 )

J-S78024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIMITRIUS BROWN :
:
Appellant : No. 3480 EDA 2017
Appeal from the Judgment of Sentence Entered September 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012767-2015
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 22, 2019
Dimitrius Brown appeals from the judgment of sentence entered
following his conviction for third-degree murder1 and related firearms
offenses.2 Brown argues that the court erred in overruling his objection to a
remark the prosecutor made during her closing argument, the evidence was
insufficient to support the verdict, the verdict was against the weight of the
evidence, and the court failed to give adequate consideration to mitigating
factors during sentencing. After careful review, we affirm.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(c).
2Brown was convicted of persons not to possess firearms, firearms not to be
carried without a license, and carrying a firearm in public in Philadelphia. See
18 Pa.C.S.A. §§ 6105(c)(8), 6106(a)(1), and 6108, respectively.
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The trial court recounted the facts of the crime as evidence presented
at Brown’s jury trial, and we need not restate them at length here. See Trial
Court Opinion, filed December 21, 2017, at 2-4. In sum, two eyewitnesses
testified that they saw 19-year-old Brown shoot Duval DeShields, Jr., a 14-
year-old, in the head, causing his death.
A third witness, O.B., testified that he had not seen the shooting.
However, the Commonwealth introduced as substantive evidence a sworn,
written statement O.B. had made to police detectives after the shooting, in
which O.B. stated he had witnessed the shooting and identified Brown as the
shooter. In response, O.B. protested that the statement was forged, he never
went to the police station, does not know Brown, and was only testifying at
trial due to a subpoena. Detective William Sierra testified that he took O.B.’s
statement, a week after the shooting, at the police station. The
Commonwealth also introduced the sign-in records from the police station,
showing an entry for O.B. on the date of the statement.
Aside from other law enforcement and medical testimony, the
Commonwealth entered into evidence recordings of multiple phone calls
Brown made from prison. These exhibits were not transmitted to this Court as
part of the certified record, and the phone calls were not transcribed in the
trial transcript.3
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3 Photocopies of the covers of the CDs containing the recordings were included
in the record.
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In Brown’s defense, Brown’s father testified that he was with Brown in
another part of the city on the night of the murder. However, his testimony
contradicted the statement he had previously given defense counsel regarding
the places and times he was with Brown on the night of the shooting. In
addition, he testified that he had not contacted anyone to disclose the alibi
until he contacted defense counsel ten days before the trial.
After the close of evidence, the court instructed the jury that closing
arguments are not evidence and that the jury is not bound by counsel’s
recollection of the evidence or counsel’s perspective. During his closing
argument, Brown’s attorney emphasized that O.B. had recanted the statement
he gave to the detectives identifying Brown as the shooter. Specifically,
Brown’s attorney argued to the jury, “[O.B.] got on the witness stand. He said
that statement, forget about it, never happened, nothing.” N.T., 7/12/17, at
99.
During the Commonwealth’s closing argument, the prosecutor argued
that it is common for witnesses to recant statements. The prosecutor stated,
You heard from [O.B.] on the first day of trial, and I said he is
what we call, “south.” What do I mean by that? He recanted or
tried to take back what he told the detectives. He made an
inconsistent statement. When I say, “south,” that is actually a
common phrase we use. Because it is that common for witnesses
to recant.
Id. at 119.
Brown objected. The court overruled the objection, but instructed the
prosecutor to explain her comment to the jury. The prosecutor argued to the
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jury that prior inconsistent statements are admissible as evidence of the truth
if written and signed. She then set forth facts supporting why the jury should
not find O.B.’s trial testimony credible, including that he had admitted that he
was testifying reluctantly, under subpoena, and that he claimed never to have
made a statement to the police, or even gone to the police station, which was
contradicted by the testimony of the detective who took his statement at the
police station and the sign-in book. The prosecutor also argued that O.B.’s
written statement was credible, noting that the content of his statement
corroborated the testimony of the two other eyewitnesses, and that
immediately after the shooting, 14-year-old O.B. would not have been
thinking about the repercussions of making a truthful statement to the police.
The prosecutor also re-played one of the phone calls Brown made from
prison. The prosecutor described the content of the call as an attempt by
Brown to instruct O.B. to recant his statement:
They’re talking about [O.B.]. . . . [Brown] says: “Either you
can give him [Brown’s attorney’s] number so that when
[O.B.] goes down to his office and, like, fill out paperwork,
like a statement, like it was a lie, like the mother fucking
homicide detectives, like, made him do that.”
Id. at 126. Brown did not object to this characterization of the recording, or
the prosecutor’s explanation for why the jury should credit the contents of
O.B.’s statement.
The jury convicted Brown of the offenses listed above. At the sentencing
hearing, both Brown and the Commonwealth presented evidence, and the
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court reviewed the contents of a presentence investigation report and mental
health report. The court sentenced Brown to serve a term of 20 to 40 years’
imprisonment for third-degree murder and lesser sentences on the other
charges, for an aggregate of 22½ to 45 years’ imprisonment. 4 Brown filed a
post-sentence motion, which the court denied.
Brown appealed, and presents the following issues:
A. Whether the trial court erred in overruling defense counsel’s
objection to the prosecutor’s closing argument that it was
common for witnesses to recant, thereby causing significant
prejudice to [Brown]?
B. Whether the trial court erred in sentencing [Brown] to 25 to 50
years of confinement despite his mitigation presented at the
sentencing hearing.
C. Whether the evidence was sufficient under the appropriate
standards of review to prove the charges beyond a reasonable
doubt.
D. Whether the verdict was against the weight of the evidence.
Brown’s Br. at 5.
I. The Prosecutor’s Closing Remarks
In his first issue, Brown argues that the prosecutor improperly remarked
during her closing argument that it was common for witnesses to recant prior
statements. Brown contends that the prosecutor’s comment did not “relate
back to the evidence of record.” Brown’s Br. at 10. Brown also argues the
____________________________________________
4 The court sentenced Brown to serve a consecutive term of two and one-half
to five years’ imprisonment for persons not to possess a firearm and
concurrent terms of two and one-half to five years’ and one to two years’
imprisonment for firearms not to be carried without a license and carrying a
firearm in public in Philadelphia, respectively.
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comment constituted “improper vouching for the prior statement and the
police testimony about it,” and “prejudiced the jury to think they need not
consider the direct testimony of O.B.” Id.
Initially, we note that it would be within our purview to find this claim
waived, as Brown did not request a mistrial or curative instruction either
during trial or in his post-sentence motion, in which Brown did not raise the
issue of the prosecutor’s closing remarks. See Commonwealth v.
Sandusky, 77 A.3d 663, 670 (Pa.Super. 2013). In any event, we find the
claim to be without merit.
We will not grant a new trial based on statements made by the
prosecutor during closing argument unless “the unavoidable effect of the
challenged comments would prejudice the jurors and form in their minds a
fixed bias and hostility toward the defendant such that the jurors could not
weigh the evidence and render a true verdict.” Commonwealth v. Burno,
94 A.3d 956, 974 (Pa. 2014) (quoting Commonwealth v. Spotz, 47 A.3d 63,
98 (Pa. 2012)). Both the prosecution and defense are “accorded reasonable
latitude and may employ oratorical flair in arguing” to the jury.
Commonwealth v. Williams, 896 A.2d 523, 542 (Pa .2006).
Moreover, we evaluate the prosecutor’s remarks not in a vaccum, but in
context. Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa.Super. 2008). A
remark will not be found inappropriate if based on the evidence presented at
trial. Williams, 896 A.2d at 542. And, while the prosecutor should not offer a
personal opinion as to the credibility of a witness, the prosecutor is permitted
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to respond to defense arguments. Burno, 94 A.3d at 974. A prosecutor only
improperly “bolsters” a witness by personally assuring the jury of the witness’s
truthfulness or suggesting extrinsic information confirms the witness’s
testimony. Commonwealth v. Reid, 99 A.3d 427, 447-48 (Pa. 2014).
We find no impropriety in the prosecutor’s remarks that O.B. went
“south” and that this is a common occurrence for trial witnesses. The law
allows for the introduction of prior statements made under reliable
circumstances because inconsistency in witness testimony is not uncommon.
See Pa.R.E. 803.1(1) (providing prior inconsistent statement by trial witness
admissible as substantive evidence of truth if signed and adopted by the
witness). Such a statement may possess “superior indicia of reliability as it
was rendered at a point in time closer to the event described . . . when
memory will presumably be fresher and opportunity for fabrication lessened.”
Commonwealth v. Wilson, 707 A.2d 1114, 1119 (Pa. 1998) (quoting
Commonwealth v. Brady, 507 A.2d 66, 69 (Pa. 1986)).
Here, the Commonwealth introduced evidence that O.B.’s statement
was accurate and his trial testimony fabricated. It did so through evidence
that O.B. went to the police station and made a statement that corroborated
the testimony of the other two eyewitnesses, despite O.B.’s trial testimony to
the contrary, and evidence that Brown suggested during a phone call made
from prison that O.B. should recant the statement. Therefore, the prosecutor’s
remarks indicating that O.B.’s statement was more credible than his testimony
was based on trial evidence. Williams, 896 A.2d at 542.
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Moreover, the Commonwealth’s attempt to emphasize the credibility of
O.B.’s statement was a permissible response to the defense’s argument that
the jury should discredit the statement. Burno, 94 A.3d at 974. And, as the
prosecutor did not personally opine that the statement was truthful, or imply
that there were extrinsic reasons for the jury to credit the statement, she did
not improperly bolster the credibility of the statement to the jury. Reid, 99
A.3d at 447-48. In addition, the court instructed the jury that it was not to
construe the arguments of counsel as evidence, and was to weigh the
credibility of each witness. See Commonwealth v. Laird, 988 A.2d 618, 629
(Pa. 2010) (stating law presumes jury followed court’s instructions).
We therefore conclude the trial court did not abuse its discretion in
overruling Brown’s objection to the prosecutor’s closing remarks under the
circumstances present in this case.
II. Weight and Sufficiency of Evidence
Brown argues the evidence was insufficient because there was no
physical evidence “linking” him to the homicide and he impeached the
testimony of the three eyewitnesses as follows: O.B. recanted his testimony,
the second eyewitness gave a description to the police which did not match
Brown, and the third eyewitness testified she was not wearing her eyeglasses
when she saw the shooting and gave inconsistent testimony. Brown states the
verdict was against the weight of the evidence “for the same reasons.” Brown’s
Br. at 11.
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We caution that challenges to the weight and sufficiency of the evidence
are separate and distinct claims, which are viewed under different standards
of review, and, when successful, warrant different remedies. See
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000).
Nevertheless, the trial court explained the legal standards for deciding both
the sufficiency and weight claims, and decided them accordingly. Upon review
of the parties’ briefs, the applicable law, and the certified record, we discern
no error of law or abuse of discretion in the trial court’s analysis. We therefore
affirm the trial court’s disposition of these issues on the basis of the opinion
of the Honorable Barbara A. McDermott, which we adopt and incorporate
herein. See Tr. Ct. Op. at 5-8.
III. Sentencing
In his final issue, Brown argues that the court incorrectly “decided
[Brown] had no mitigating circumstances, despite the record showing his
traumatic family upbringing, his youthful age, family support and lack of
direction in life.” Brown’s Br. at 11. Brown also argues his sentence, while
falling within the standard range of the Sentencing Guidelines, was “excessive
for satisfying the statutory goal[s] of sentencing.” Id.Before addressing the merits of Brown’s claim, we must determine
whether: (1) the appeal is timely; (2) the issue was preserved; (3) the brief
includes a Pa.R.A.P. 2119(f) statement; and (4) the statement raises a
“substantial question that the sentence appealed from is not appropriate
under the Sentencing Code.” See Commonwealth v. Heaster, 171 A.3d
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268, 271-72 (Pa.Super. 2017) (quoting Commonwealth v. Moury, 992 A.2d
162, 170 (Pa.Super. 2010)), appeal denied, 181 A.3d 1078 (Pa. 2018).
The Commonwealth argues that Brown has failed to include a Pa.R.A.P.
2119(f) statement in his brief, and thus his challenge to the discretionary
aspects of his sentence is waived. We agree. See Commonwealth v. Kiesel,
854 A.2d 530, 533 (Pa.Super. 2004) (holding appellate court has no discretion
to allow appeal when appellee objects to omission of Rule 2119(f) statement).
Moreover, a guidelines sentence is presumed appropriate. Commonwealth
v. Maneval, 688 A.2d 1198, 1199 (Pa.Super. 1997). Further, where a court
had the benefit of a presentence investigation report, as it did here, we
presume the court was aware of all relevant information. See
Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa.Super. 2016); Tr. Ct.
Op. a 9-10 (stating trial court reviewed presentence and mental health reports
and considered all relevant sentencing factors). Therefore, were the
discretionary sentencing issue not waived by Brown’s failure to petition this
court for review, we would find the issue lacking in merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/19
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Circulated 04/02/2019 02:00 PM
FILED
IN THE COURT OF COMMON PLEAS OEC 2 12017
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Office of Judicial Records
CRIMINAL TRIAL DIVISION Appeals/Post Trial
COMMONWEALTH OF PENNSYLVANIA CP-5 l-CR-0012767-2015
v.
CP-51-CR-0012767-2015 Comm. v. Brown. Oimitrius
Opimon
I
DIMITRIUS BROWN
II I II II8046648391
11111111111111111
OPINION
McDermott, J. December 21, 2017
Procedural Histon·
On October 16, 2015, the Defendant, Dimitri us Brown, was arrested and charged with
murder and related offenses. On July 10, 2017, the Defendant appeared before this Court and
elected to be tried by ajury. On July 14, 2017, the jury convicted him on all charges. On
September 28, 201 7, this Court sentenced the Defendant to twenty to forty years of
imprisonment for Third-Degree Murder, with concurrent terms of two and a half to five years for
Firearms Not to be Carried Without a License and one to two years for Carrying a Firearm in
Public in Philadelphia, and a consecutive term of two and a half to five years for Persons Not to
Possess a Firearm, for a total sentence of twenty-two and half to forty-five years of
imprisonment.
On October 10, 2017, this Court denied the Defendant's timely Post-Sentence Motion.
On October 25, the Defendant timely appealed. On November 10, 2017, the Defendant filed a
1925(b) Statement of Matters Complained of on Appeal.
Facts
On October 12, 2015, around 8 p.m., in Philadelphia, the decedent, Duval De Shields, Jr.
(age fourteen), Brianna Boone, and friends were riding bikes when DeShields received a cell
phone call. After the call, DeShields told Boone that someone's mother was around the corner
looking for him because he had been accused him of "messing with" a little boy. Earlier that
day, Boone, DeShields, and another friend had broken up a fight between minors on 10th Street.
When another fight was about to begin, DeShields had pulled out a BB gun. N.T., 7/11/2017 at
221-24.
After the phone call, DeShields was afraid to ride around the corner, but with some
convincing from Boone that he had nothing to fear, they rode their bikes to 10th Street. When
they arrived, the Defendant, Dimitrius Brown (who Boone knew as "Meek"), approached
DeShields. Boone, standing just a few feet away, heard the Defendant ask DeShields, "what
makes you think it's cool for you to pull your gun out on my young bol [sic]?" According to
Boone, after DeShields said he did not have a gun, the Defendant grabbed DeShields' arm.
When DeShields yanked away from the Defendant and started to run, the Defendant pulled a
revolver from his coat and shot him. At trial, Boone identified the Defendant as the shooter and
testified that she knew the Defendant for two or three years before the shooting. Boone also
testified that she saw the Defendant cleaning or fixing the same revolver a couple of days before
the shooting. It was stipulated at trial that the Defendant did not have a license to carry a
firearm. N.T., 7/11/2017 at 199-201, 204-05, 207, 242, 255, 265.
A week after the murder, O.B., age fourteen at the time, gave a statement to detectives.1
In his statement, O.B. said that he was at home on the night of the shooting when his friend T.G.
I O.B. went "south" at trial, but his statement to detectives was admitted as substantive evidence under Brady/Lively.
See Commonwealth v, lively, 703 A.2d 467 (Pa. Super. 1997). ·
2
arrived and told him that DeShields had pulled a gun on T.G. 's little brother. According to T.G.,
DeShields had also flashed a gun at him. T.G. told O.B. that he wanted to fight DeShields. O.B.
and T.G. then walked to l 0th and Thompson Streets, the intersection just above where the instant
shooting would occur. N.T., 7/10/2017 at 241-47; N.T., 7/11/2017 at 145-46.
According to O.B., right before the shooting, while O.B. and T.G. were near 10th Street,
the Defendant, who 0.B. knew as "Meat," walked up to O.B. and the two had a brief
conversation. Shortly after their conversation, DeShields arrived on his bike with some friends.
The Defendant walked toward DeShields while 0.B. tried to grab the Defendant's arm, but the
Defendant yanked it away. Consistent with Boone's testimony, O.B. told detectives that the
Defendant approached DeShields and that the two had a brief conversation; then they started
grabbing at each other in a scuffle. When DeShields attempted to run, the Defendant shot him.
N.T., 7/10/2017 at 247-48, 52; N.T., 7/11/2017 at 57-59.
At trial, T.G. testified that immediately before the shooting, he saw the Defendant grab
DeShields' hand as DeShields was trying to pull his gun out; when DeShields attempted to run,
the Defendant shot him. In an interview with detectives on October 19, 2015, T. G. identified the
Defendant as the shooter. T.G. again identified the Defendant at trial. N.T., 7/11/2017 at 145-
49, 172, 181, 190.
When police arrived at the scene shortly after the shooting, they found DeShields lying
on the ground, bleeding from his head. They placed him in the back of an SUV and transported
him to Hahnemann Hospital. At Hahnemann, when police handed DeShields to medical
personnel, a BB gun, with an orange tip on the front of the barrel, fell from DeShields' person
onto the floor of the SUV. The BB gun was a Chinese made, black plastic, 25-caliber, air soft-
3
type pistol, which resembled a Glock-type semiautomatic gun. N.T., 7/10/2017 at 197-99, 202-
04; N.T., 7/11/2017 at 108-09.
DeShields was pronounced dead at 10:00 a.m. on October 13, 2015. According to the
medical examiner, Dr. Lindsay Simon, DeShields was shot with a single bullet which entered the
left side of his head, above and slightly behind his left ear, perforated his skull and brain, and
exited the right side of his forehead above his eyebrow. The cause of death was a gunshot
wound to the head; the manner of death was homicide. N.T., 7/1012017 at 126-27, 132.
The Defendant presented his father Kerry Brown ("Mr. Brown") as an alibi witness, to
which the jury, based on their verdict, rejected. On July 2, 2015, ten days before the instant trial,
the Defendant's father, told defense counsel that he was with the Defendant until 8:45 p.m. in
another part of the city the night of the murder.2 The murder occurred at around 8:30 p.m. At
trial, Mr. Brown testified that he was with his son at C and Somerset Streets in the Kensington
section of the city; but, inconsistent with his statement to defense counsel, he said that he left his
son at 8:20 p.m. When asked why he waited so long to inform anyone about his son's alibi, Mr.
Brown explained that his son had reminded him a couple of times to say something but that he
had been preoccupied-he told his son, "I will get to it." N.T., 7/12/2017 at 25, 34, 36, 44, 64-
65.
Discussion
The Defendant claims that there was insufficient evidence to sustain the verdict for his
Third-Degree Murder conviction. He specifically argues that the Commonwealth did not
sufficiently identify him as the shooter and that the witnesses' testimony were inconsistent. He
also claims that he presented credible alibi evidence.
2 Defense counsel memorialized the statement.
4
Evidence presented at trial is sufficient when, viewed in the light most favorable to the
Commonwealth as the verdict winner, the evidence and all reasonable inferences derived
therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt.
Commonwealth v. Baumhammers, 960 A.2d 59, 68 (Pa. 2008). The Commonwealth may sustain
its burden of proving each element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011) (citing
Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)). The fact-finder is free to
believe all, part, or none of the evidence, and credibility determinations rest solely within the
purview of the fact-finder. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). The Superior
Court considers all the evidence admitted, without regard to any claim of wrongly admitted
evidence. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010). The Superior Court will
also not weigh the evidence or make credibility determinations. Id.Third-Degree Murder is "all other kinds of murder" other than First- or Second-Degree
Murder. Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa. Super. 2009); see also 18 Pa.C.S. §
2502(c). The elements of Third-Degree Murder, developed by case law, are a killing done with
legal malice. Marquez, supra (citing Commonwealth v. Mac.Arthur, 629 A.2d 166 (Pa. Super.
1993). Malice for Third-Degree Murder is defined as:
wickedness of disposition, hardness of heart, cruelty, recklessness
of consequences, and a mind regardless of social duty, although a
particular person may not be intended to be injured[.] Malice may
be found where the defendant consciously disregarded an
unjustified and extremely high risk that his actions might cause
serious bodily injury. Malice may be inferred by considering the
totality of the circumstances.
Commonwealth v. Thompson, 106 A.3d 742, 757 (Pa. Super. 2014).
5
The Defendant's claim is meritless as the evidence was more than sufficient to sustain the
verdict. Three eyewitnesses identified the Defendant as the person who shot DeShields after
DeShields attempted to run. DeShields was shot in the back of the head, consistent with the
witnesses' testimony. Further, malice for Third-Degree Murder can be inferred from the
Defendant's use of a deadly weapon in shooting De Shields in the head, a vital body part.
Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) (citing Commonwealth v.
Gooding, 818 A.2d 546, 550 (Pa. Super. 2003)).
The Defendant's claim that the witnesses' identifications of the Defendant "were too
inconsistent" is misplaced. This claim goes to the weight of the evidence, not the sufficiency.
Nonetheless, this claim warrants no relief as the eyewitnesses were largely consistent. Each
eyewitness identified the Defendant as the shooter, each saw the Defendant shoot DeShields as
he attempted to run, and each knew the Defendant and the victim before the shooting. If there
were minor inconsistencies in the witnesses' testimony, the jury was free to resolve these
inconsistencies and still find for the Commonwealth.
As for the Defendant's proffered alibi defense from his father, the jury clearly rejected it
after finding it not credible. Mr. Brown testified that he was aware of his son's arrest not long
after the murder, yet he waited until ten days before trial=-over a year after his son's arrest-to
inform anyone about his son's alibi. Mr. Brown incredibly explained that the reason for the
delay was that he had been preoccupied. Mr. Brown's testimony was also inconsistent in that
while the murder occurred at around 8:30 p.m., Mr. Brown initially gave defense counsel a
statement claiming that he left his son at 8:45 p.m.; at trial, he said that he left his son at 8:20.
The Defendant claims that his conviction for Third-Degree Murder was against the
weight of the evidence. An argument that the verdict is contrary to the weight of the evidence
6
concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that
the verdict is against the weight of the evidence. Commonwealth v. Davis, 799 A.2d 860, 865
(Pa. Super. 2002). An allegation that the verdict is against the weight of the evidence is
addressed to the sound discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089,
1101 (Pa. Super. 2005) (citing Commonwealth v. Sullivan, 820 A.2d 795, 805-06 (Pa. Super.
2003); Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000). "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. A trial judge must do more than reassess the credibility of
the witnesses and allege that he would not have assented to the verdict ifhe were a juror."
Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa. Super. 2007) (citing Widmer, supra)).
For weight of the evidence claims, the Supreme Court has explained that the test is
whether the verdict must be so contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). Since the fact finder is free to
believe all, part, or none of the evidence and to determine the credibility of the witnesses, for a
'
defendant to prevai I on a challenge of the weight, the evidence must be "so tenuous, vague and
uncertain that the verdict shocks the conscience of the court." Commonwealth v. Sullivan, 820
A.2d 795, 806 (Pa. Super. 2003). An appellate court cannot substitute its judgment for that of
the finder of fact. Commonwealth v. Morris, 958 A.2d 569, 577 (Pa. Super. 2008) (citing
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)). A weight of the evidence
challenge is one of the least assailable reasons for granting or denying a trial. Commonwealth v.
Horne, 89 A.3d 277, 285 (Pa. Super. 2014) (citing Widmer, 744 A.2d at 753).
This claim is devoid of merit as the jury's verdict did not shock one's sense of justice.
The Commonwealth presented a considerable amount of eyewitness testimony and physical
7
evidence that the Defendant fatally shot DeShields while DeShields attempted to run from him.
The jury's verdict indicates that they chose to believe this evidence rather than the Defendant's
theory of the case.
The Defendant next claims that the Commonwealth's comment in closing arguments, that
it was common for witnesses to recant their statements, after 0.8. went "south" at trial, had an
incurable effect on the jury. After the Commonwealth made this statement, defense counsel
objected. This Court overruled the objection, but informed the Commonwealth that she could
explain what she meant. The Commonwealth then proceeded to accurately explain to the jury
why previously signed and adopted statements can be admitted as substantive evidence. See
Commonwealth v. Lively, 703 A.2d 467 (Pa. Super. 1997). Because the Commonwealth
merely-and accurately--explained the law, which is within its purview, this claim requires no
relief.'
Finally, the Defendant claims that his sentence was excessive. In furnishing a sentence, a
trial court "shall follow the general principle that the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity of the offense [ ... ]
and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b). It is well-settled that
sentencing is a matter vested in the sound discretion of the trial court, and will not be disturbed
absent a manifest abuse of discretion. Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super.
2014) (citing Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)). An abuse of
discretion is not merely an error in judgment, but a defendant must establish that the sentencing
court misapplied the law or exercised its judgment for reasons of partiality, prejudice, bias, or ill-
3 See N.T., 7/12/2017 at 121-127.
8
will, or arrived at a manifestly unreasonable decision. Commonwealth v. Anderson, 830 A.2d
1013, 1018 (Pa. Super. 2003).
A defendant challenging the discretionary aspects of his sentence must establish, inter
alia, that there is a substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. Commonwealth v. Serrano, 150 A.3d 4 70, 4 73 (Pa. Super. 2016) (quoting
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015) (citations omitted)). A
substantial question exists when an appellant raises "a colorable argument that the sentence
imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to
the fundamental norms underlying the sentencing process." Commonwealth v. Gonzalez, I 09
A.3d 711, 731 (Pa. Super. 2015). The consecutive nature of a defendant's sentence does not
raise a substantial question. Commonwealth v. Zirkle, 107 A.3d 127, 134 (Pa. Super. 2014).
In imposing a sentence, a court shall follow the general principle that the sentence
imposed calls for conferment that is consistent with the protection of the public, the gravity of
the offense as it relates to the impacton the life of the victim and the community, and the
rehabilitative needs of the defendant. 42 Pa.C.S. § 972l(b). Where the trial court is informed by
a pre-sentence report, it is presumed that the court is aware of all appropriate sentencing factors
and considerations, and that its discretion should not be disturbed. Commonwealth v. Bullock, ---
A.3d --- (Pa. Super. 2017) (citing Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009)).
This Court reviewed the Defendant's presentence and metal health reports before
sentencing. This Court reviewed and considered the Defendant's age, upbringing, educational
background, and criminal history. This Court also considered the Defendant's rehabilitative
needs and the sentencing guidelines. With a prior record score of five, and an offense gravity
9
score of fourteen, the standard range of a minimum sentence for the Defendant's Third-Degree
Murder conviction was sixteen years of imprisonment to the statutory limit. His sentence of
twenty to forty years imprisonment for Third-Degree Murder was within the standard range and
did not exceed the statutory limit. His sentence was also appropriate given the seriousness of the
offense and the effect it had on the community. The Defendant fatally shot a fourteen year old
minor in the head just a few feet from other minors. As such, no relief is due.
For the foregoing reasons, the judgment of sentence should be affirmed.
BY THE COURT,
Barbara A. McDermott, J.
10
Commonwealth v. Dimitrius Brown
CP-5 l-CR-0023767-2016
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing filing upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Attn: Alison Ruth, Esq.
Type of Service: DA's Courthouse Assigned Box
Ben Cooper, Esq.
160 I Cherry Street
Ste. 1320
Philadelphia, PA 19102
Type of Service: First-Class Mail
Dimitrius Brown
MU7427
SCI Chester
500 E. Fourth Street
Chester, PA 19013
Type of Service: Certified Mail
Dated: December 21, 2017