Opinion
J. S69027/15 No. 316 EDA 2015
01-19-2016
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL TAYLOR, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence, September 3, 2014, in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001478-2012 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Michael Taylor appeals from the September 3, 2014 judgment of sentence resulting from his convictions of aggravated assault, possessing an instrument of crime, simple assault, recklessly endangering another person, possession of a firearm by a prohibited person, firearms not to be carried without a license, and carrying firearms in public in Philadelphia. We affirm.
18 Pa.C.S.A. §§ 2702(a), 907(a), 2701(a), 2705, 6105(a)(1), 6106(a), and 6108, respectively.
The trial court provided the following relevant facts:
On Friday, December 9, 2011, at about 11 p.m., Rasheed Kellam was outside a corner store at Seventh and Jefferson Streets in Philadelphia. He testified that three individuals approached him and tried to steal his coat. When he refused, one of the individuals shot him, and the bullet went through both legs. Although he did not know what type of gun was used, he recalled hearing three shots.
Officer Joseph Goodwin of the Philadelphia Police Department was on duty the night of the incident and received information from his Captain about the shooting. He contacted sources in the neighborhood he'd previously used to further investigate the matter. Based on the information he received, he returned to the police station and made recommendations about who should be placed in a photo array. Based upon this recommendation, a photo array was made up to identify a suspect.Trial court opinion, 4/27/15 at 2-3.
Mr. Kellam was interviewed by Detectives John Bartle and David Rash after being released from the hospital that same night. Kellam was initially uncooperative and would not identify the shooter. Officer Goodwin joined the interview and told Mr. Kellam about the information he'd received from his contacts. After Officer Goodwin spoke to him, Mr. Kellam requested to see the photo array. At that time he identified Appellant as the individual who shot him. Officer Goodwin testified that his confidential informants did not want to testify in court.
Mr. Kellam was again uncooperative when testifying at the preliminary hearing, and did not identify Appellant at that time. He stated that he did not see who shot him, in contrast to the written statement given to police on the date of the shooting. When Mr. Kellam testified at trial, he stated that he did not remember the interview with police due to the painkillers he had been given. However, medical records indicate that he was not prescribed any pain medication that evening.
Both parties stipulated at trial that Appellant was not licensed to carry a firearm.
Appellant waived his right to a jury trial and was convicted of the aforementioned charges on February 19, 2014. On September 3, 2014, appellant was sentenced to a total of seven to fifteen years of incarceration, to be followed by five years of probation. Appellant filed post-sentence motions on September 10, 2014, which were denied by operation of law on January 9, 2015. On January 16, 2015, appellant filed a notice of appeal. The trial court ordered appellant to produce a concise statement of errors complained of on appeal on February 5, 2015, pursuant to Pa.R.A.P. 1925(b), and appellant complied with the trial court's order on February 26, 2015. The trial court has filed an opinion.
Appellant raises the following issues on appeal:
A. WAS APPELLANT'S CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE?Appellant's brief at 3.
B. DID THE COMMONWEALTH PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF EACH CRIME THAT APPELLANT WAS CONVICTED OF?
C. DID THE TRIAL COURT ISSUE A GREATER SENTENCE THAN NECESSARY?
The first issue appellant raises for our review is whether the trial court's verdict is contrary to the weight of the evidence presented at trial. Our standard of review for determining whether a verdict is compatible with the weight of the evidence is well settled:
An appellate court's standard of review 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 trial judge when reviewing the trial court's determination 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 lower court's conviction that 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 limits of a trial court's discretion, we have explained:
Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted) (emphasis deleted). We agree with the trial court that appellant's convictions are "not contrary to the evidence [n]or shocking to the conscience." Accordingly, we affirm based on the trial court's opinion for this issue. ( See trial court opinion, 4/27/15 at 4.)The term "discretion" imports 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 in judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is the result of partiality, prejudice, bias, or ill will.
In appellant's second issue on appeal, he challenges whether the evidence presented by the Commonwealth was sufficient to warrant convictions for the crimes with which appellant was charged.
In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable [the fact-finder] to find every element of the crime beyond a reasonable doubt. This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Although a conviction must be based on "more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty."Commonwealth v. Stokes , 78 A.3d 644, 649 (Pa.Super. 2013) (citations omitted).
Moreover, when reviewing the sufficiency of the evidence, this Court may not substitute its judgment for that of the fact-finder; if the record contains support for the convictions they may not be disturbed.
Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder 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. Estepp , 17 A.3d 939, 943-944 (Pa.Super. 2011) (citations omitted). The Commonwealth may satisfy its burden of proving a defendant's guilt beyond a reasonable doubt by using wholly circumstantial evidence. Commonwealth v. Diggs , 949 A.2d 873, 877 (Pa. 2008).
Appellant specifically challenges the sufficiency of the evidence of his convictions of the following crimes: aggravated assault, possession of a firearm by a prohibited person, possession of a firearm without a license, carrying a firearm in Philadelphia, and possession of an instrument of crime. Throughout his entire argument challenging the sufficiency of the evidence relating to his convictions, appellant repeatedly refers to the weight, rather than the sufficiency, of the evidence presented by the Commonwealth. Specifically, appellant references the credibility of witnesses, the reliability of the evidence presented, and whether an element of an offense can be inferred from "contradictory testimony." This claim is a challenge to the weight of the evidence, rather than its sufficiency. See Commonwealth v. Wilson , 825 A.2d 710, 713-714 (Pa.Super. 2003) (stating that a sufficiency of the evidence claim does not involve an analysis of witnesses' credibility) (citations omitted).
As this court has previously explained,
The weight of the evidence is exclusively for the finder of fact, which is free to believe all, part, or none of the evidence and to assess the credibility of
the witnesses. Commonwealth v. Johnson , 668 A.2d 97, 101 (Pa. 1995). . . . An appellate court cannot substitute its judgment for that of the [finder of fact] on issues of credibility. Commonwealth v. DeJesus , 860 A.2d 102, 107 (Pa. 2004).Commonwealth v. Palo , 24 A.3d 1050, 1055 (Pa.Super. 2011), appeal denied , 34 A.3d 828 (Pa. 2011); see also Commonwealth v. Griffin , 65 A.3d 932, 939 (Pa.Super. 2013), appeal denied , 76 A.3d 538 (Pa. 2013). As noted by the Palo court, we cannot substitute the fact-finder's judgment of credibility with our own; therefore, no relief is due for appellant's claim that the evidence was insufficient to warrant convictions for aggravated assault, the firearms offenses, and possession of an instrument of crime.
Finally, in his third issue for our review, appellant challenges whether the trial court "issued a greater sentence than necessary." (Appellant's brief at 3.) Appellant, however, concedes that this issue was "not properly preserved by way of a timely objection or post-sentence motion," and the issue has been withdrawn. ( Id.)
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/19/2016
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