Com. v. Forth, D. ( 2020 )

J-S24013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVEN FORTH :
:
Appellant : No. 1378 EDA 2019
Appeal from the Judgment of Sentence Entered December 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010653-2017
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: Filed.: July 2, 2020
Appellant, Daven Forth, appeals from the judgment of sentence of life
imprisonment without the possibility of parole, imposed after a jury convicted
him of first-degree murder, attempted murder, and related offenses.
Appellant challenges the sufficiency and weight of the evidence to sustain his
convictions. After careful review, we affirm.
The facts, when viewed in the light most favorable to the
Commonwealth as the verdict-winner, show that on May 8, 2017,
Jeremy Irby (“Germ”) met up with [Appellant], George Pinkney,
Antonio Hester (“Tone”), and Rahsan Stinnett (“Poo-Rock”) at the
neighborhood park, then drove to [Hester’s] house at 1823 Master
Street in the City and County of Philadelphia. Once there[,]
everyone was getting high [by] smoking marijuana. (N.T.[,] 1-
27-2018, [at] 155-162; N.T.[,] 11-29-2018, [at] 113-122).
Without any provocation, [Appellant] pulled out a black handgun
and shot … Hester in the back of the head, resulting in his
immediate death[….] [Appellant] then shot … Pinkney twice in the
face. (N.T.[,] 11-27-2018, [at] 44-46, 165-167, 182, 200-201).
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* Retired Senior Judge assigned to the Superior Court.
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… Pinkney managed to get out of the house, where a neighbor
seeing him covered in blood called 911. … Hester’s girlfriend was
just pulling up to [the] house when she saw Pinkney. After
managing to somewhat compos[e] herself, she drove Pinkney to
the hospital. ([Id. at] 167-173, 182)[.] Although Pinkney
testified at trial that he did not know who shot him, in a statement
to the police on July 21, 2017, he identified [Appellant] as the
shooter. ([Id. at] 176-180; [N.T.,] 11-29-2018, [at] 10-13, 20-
21). Moreover, Pinkney testified at [Appellant’s] preliminary
hearing that he saw Appellant shoot him[,] as well as the gun that
[A]ppellant used. (N.T.[,] 11-27-2019, [at] 197-200; [N.T.,] 11-
29-2018, [at] 14-18). Prior to trial, [Pinkney] telephoned the
assigned prosecutor leaving messages that he was afraid for his
life[,] as well as that of his family[,] if he testified at trial against
[Appellant]. (N.T.[,] 11-27-2018, [at] 180-195; [N.T.,] 11-29-
2018, [at] 17-20, 28-29, 32-33, 64-75). … Irby also testified at
the trial and [stated that,] although [he was] in the room when
the shooting occurred[,] … he did not know who did the shooting.
(N.T.[,] 11-29-2018, [at] 122-133). Irby likewise had given a
statement to the police on September 6, 2017, wherein he was
fearful of identifying the shooter[.] ([Id. at] 133-140).
Trial Court Opinion (TCO), 10/4/19, at 3-4 (some quotation marks omitted).
Based on this evidence, the jury convicted Appellant of first-degree
murder, attempted murder, aggravated assault, carrying a firearm on a public
street in Philadelphia, carrying a firearm without a license, and possessing an
instrument of crime.1 On December 5, 2018, he was sentenced to an
aggregate term of life imprisonment without the possibility of parole.
Appellant filed a timely post-sentence motion, which was denied by operation
of law on May 9, 2019. That same day, Appellant filed a timely notice of
appeal, and he later complied with the court’s order to file a Pa.R.A.P. 1925(b)
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118 Pa.C.S. § 2502(a), 18 Pa.C.S. § 901(a), 18 Pa.C.S. § 2702(a), 18 Pa.C.S.
§ 6108, 18 Pa.C.S. § 6106(a)(1), and 18 Pa.C.S. § 907(a), respectively.
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concise statement of errors complained of on appeal. The court filed its Rule
1925(a) opinion on October 4, 2019.
Herein, Appellant states two issues for our review:
I. Was the evidence sufficient to sustain Appellant’s conviction for
[first]-degree murder?
II. Were the verdicts for all counts against the clear weight of the
evidence?
Appellant’s Brief at 4.2
Appellant first challenges the sufficiency of the evidence to sustain his
conviction for first-degree murder.3 To begin, we recognize that,
[t]he standard we apply in 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
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2Appellant abandons two additional issues that he set forth in his Rule 1925(b)
statement. See Appellant’s Brief at 4 n.1.
3 While Appellant refers only to his first-degree murder conviction in his
Statement of the Questions Involved, he states in his Argument that he is
attacking the sufficiency of the evidence to support all of his convictions. See
Appellant’s Brief at 9 (“Even viewing the evidence in the light most favorable
to the Commonwealth, it is insufficient to sustain a conviction for any of the
charges.”). Appellant’s failure to mention each of his convictions separately
in his statement of his issues waives his challenge to those convictions for our
review. See Pa.R.A.P. 2116(a) (“No question will be considered unless it is
stated in the statement of questions involved or is fairly suggested thereby.”).
Nevertheless, even if properly raised in his statement of his issues, we would
reject Appellant’s sufficiency challenge to all of his convictions for the reasons
set forth, infra.
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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).
Additionally, “[i]n the case of first-degree murder, a person is guilty when the
Commonwealth proves that: (1) a human being was unlawfully killed; (2) the
person accused is responsible for the killing; and (3) the accused acted with
specific intent to kill.” Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa.
2009).
Here, Appellant solely contends that the evidence was insufficient to
establish that he is the individual who shot the two victims in this case. He
stresses that Pickney’s statement to police, and preliminary hearing
testimony, was the only evidence to support that he was the shooter. Pickney
then recanted at trial, and neither Irby nor Stinnett testified that Appellant
was the gunman. Appellant also notes that “[n]o gun was recovered, [and]
no fingerprints were found….” Appellant’s Brief at 10. Based on these facts,
Appellant argues that the evidence failed to prove that he was the person who
shot the victims.
We disagree. Pickney twice identified Appellant as the shooter — once
in his statement to police, and again in his preliminary hearing testimony.
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Those identifications were admitted as substantive evidence of Appellant’s
guilt. See Commonwealth v. Lively, 610 A.2d 7, 10 (Pa. 1992)
(“[A] prior inconsistent statement may be used as substantive evidence only
when the statement is given under oath at a formal legal proceeding; or
the statement had been reduced to a writing signed and adopted by the
witness; or a statement that is a contemporaneous verbatim recording of the
witness’s statements.”). As the Commonwealth points out, “[i]n evaluating a
sufficiency claim, the out-of-court statement of a single eyewitness who
recants at trial is sufficient to sustain a conviction.” Commonwealth’s Brief at
9 (citing, inter alia, Commonwealth v. Hanible, 836 A.2d 36, 39 (Pa. 2003)
(holding that the out-of-court statement of the sole eyewitness who recanted
at trial was sufficient to sustain Hanible’s conviction for first-degree murder)).
Moreover, Pickney’s initial identification of Appellant to police was
corroborated by his preliminary hearing testimony, and the Commonwealth
presented evidence indicating that he recanted at trial out of fear for his and
his family’s safety. The jury was permitted to disregard Pickney’s recantation
and believe his pre-trial identifications of Appellant as the person who shot
him and Hester. See Hanible, 836 A.2d at 39 (“[T]he jury was free to
evaluate both [the eyewitness’s] statement to police as well as his testimony
at trial recanting that statement, and [was] free to believe all, part, or none
of the evidence.”). Accordingly, his challenge to the sufficiency of the
evidence to sustain his convictions is meritless.
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Next, Appellant avers that the jury’s “verdict was against the clear
weight of the evidence.” Appellant’s Brief at 11. In support, Appellant
reiterates that Pickney’s pre-trial identifications were the only evidence of his
guilt, and that those identifications should have been found incredible in light
of Pickney’s recantation at trial. Accordingly, he contends that a new trial is
warranted on all counts.
Again, we disagree. Initially, we note:
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court’s discretion; it does not answer for itself whether the verdict
was against the weight of the evidence. It is well[-]settled that
the jury is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses, and a new trial based
on a weight of the evidence claim is only warranted where the
jury’s verdict is so contrary to the evidence that it shocks one’s
sense of justice. In determining whether this standard has been
met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable abuse
of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations
and internal quotation marks omitted).
In this case, the trial court rejected Appellant’s weight claim, first noting
that “[a] claim that the verdict was contrary to the weight of the evidence
concedes that there is sufficient evidence to sustain the verdict.” TCO at 6
(citing Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)). The
court then reasoned that, “Appellant, without provocation, took out a pistol
and shot Antonio Hester in the back of the head, causing his immediate death.
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[Appellant] then shot George Pickney twice in the face, again without any
provocation. Obviously, this verdict does not shock the court’s conscience and
the verdict should be affirmed.” Id. at 7. We discern no abuse of discretion
in the court’s decision. Accordingly, Appellant’s second issue is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/20
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