Opinion
J-S54017-20 No. 681 MDA 2020
04-09-2021
COMMONWEALTH OF PENNSYLVANIA v. CLIFTON KELVIN HUNTER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered January 2, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000105-2019 BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY McLAUGHLIN, J.:
Clifton Kelvin Hunter appeals from the judgment of sentence entered following his convictions for one count each of Attempted Homicide, Conspiracy, and Firearms not to be Carried Without a License, and two counts of Robbery. Hunter challenges the weight of the evidence. We affirm on the basis of the trial court opinion.
18 Pa.C.S.A. §§ 901(a), 2501(a), 903(a), 6106(a)(1), and 3701(a)(1)(i), respectively. --------
The trial court reviews the evidence at length in its opinion; we offer a summary here. See Pa.R.A.P. 1925(a) Op. ("1925(a) Op."), filed 6/26/20, at 1-6. This case arises from an incident in which three men came to a home looking for money, and during the incident, a man was shot in the abdomen. Hunter was convicted of the aforementioned charges after a jury trial during which the jury was entrusted to decide whether Hunter or his associate, Jamel Nesmith ("Nesmith"), was the shooter. After initially telling police at the scene that "Jamal Newman" shot him, the victim ultimately identified Nesmith as having been involved in the incident but said he was not the shooter. Rather, he stated Nesmith had ordered Hunter to shoot him, and Hunter complied. The victim testified at trial that he had given police the name "Jamal Newman" because he did not remember the names of the other two men and he only knew "Jamal." He also testified that a Facebook post in which he said Nesmith shot him was a lie. The jury credited the victim's testimony and found Hunter guilty of the aforementioned charges.
The trial court sentenced Hunter to an aggregate term of 27½ to 67 years' incarceration. Hunter filed a post-sentence motion challenging the weight of the evidence and his sentence. The trial court denied the motion and this timely appeal followed. Hunter raises a single issue: "Did the trial court err and abuse its discretion in not overturning the verdict after trial as it was against the weight of the evidence?" Hunter's Br. at 6.
Our review of a challenge to the weight of the evidence is limited to reviewing the trial court's exercise of discretion. Commonwealth v. Knox , 50 A.3d 732, 738 (Pa.Super. 2012). When reviewing a claim challenging the weight of evidence, the trial court must determine whether "notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice." Commonwealth v. Widmer , 744 A.2d 745, 752 (Pa. 2000) (quoting Thompson v. City of Philadelphia , 493 A.2d 669, 674 (Pa. 1985)). "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." Id.
Hunter maintains that "[there] exists in this matter conflict over who shot [the victim] from the varied statements of [the victim] himself." Hunter's Br. at 14. Hunter's argument essentially challenges the credibility of the victim.
"[I]t is well settled that we cannot substitute our judgment for that of the trier of fact." Commonwealth v. Manley , 985 A.2d 256, 262 (Pa.Super. 2009). The trial court concluded that the verdict was not against the weight of the evidence. It acknowledged that "[q]uestions about inconsistent testimony go to the credibility of the witnesses, and it is solely for the jury to resolve any conflicts or inconsistencies." 1925(a) Op. at 8 (citing Commonwealth v. Upshur , 764 A.2d 69, 74 (Pa.Super. 2000) (en banc)). Therefore, in the instant case, "it was solely for the jury to decide whether to believe the testimony of [the victim]." Id. at 9. The trial court also made note that the victim explained why he did not initially identify Hunter as the person who shot him. The trial court stated that other evidence also supported the victim's recount of what happened on the night of the incident, including Nesmith's testimony, a Facebook message, and a video showing Hunter along with his codefendants fleeing the scene shortly after the victim was shot. Id. at 10.
In the present case, testimony from police witnesses established that [the victim] told officers at the crime scene three individuals came to the residence looking for money and one person shot him. [The victim] also told police at the hospital that three people came to the house looking for money and he was shot. Furthermore, [the victim] picked [Hunter] out of a photo array within days of the incident as the person who shot him.
[The victim] testified at trial that he was contacted by Jamel Nesmith to buy some pounds of weed. Later that evening, Nesmith showed up with [Hunter] and Jackson. When [the victim] stated he was dry, Jackson accused him of lying and started searching the residence looking for weed. [Hunter] asked [the victim] who he was texting and Nesmith told [Hunter] to shoot him. [The victim] identified [Hunter] as the person who then shot him. After shooting [the victim] in the abdomen, [Hunter] pointed the gun at [the victim's] head before fleeing when he saw [Jose] Aponte with a gun.
. . . [The victim] explained at trial why he initially did not identify [Hunter] as the shooter. He also stated the Facebook post was a lie. . . .
[The victim's testimony] was also corroborated by Nesmith. Police testified that when Nesmith was arrested three days after the incident, he identified [Hunter] and Jackson as the two other individuals involved. Based on Nesmith's information police compiled a photo array, at which time [the victim] picked out [Hunter] as the shooter. Nesmith then testified that [Hunter] arrived in a vehicle, Nesmith got into [Hunter's] car, and they drove to Jose [Aponte's] house. When [the victim] stated he did not have any weed, Jackson asked [the victim] where the money was located. [Hunter] told [the victim] to get off his phone, he walked up to [the victim] to grab the phone, and reached into his hoodie. Nesmith then saw [Hunter] pull something out and heard a gunshot.
Nesmith's testimony was corroborated by a Facebook message dated October 16, 2018, showing that Nesmith did in fact contact [the victim] at 6:31 p.m. Nesmith was further corroborated by a video showing three individuals walking towards [the victim's] apartment just as Nesmith had
described, and Nesmith identified the individuals as [Hunter], Jackson, and himself.Id. at 9-10.
After a review of the parties' briefs, the record, the applicable law, and the trial court's opinion, we find no abuse of discretion in the trial court's rejection of Hunter's weight claim. See id. at 7-10. We therefore affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 04/09/2021
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