Com. v. Brown, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JASON BROWN :

:

Appellant : No. 1031 WDA 2023

Appeal from the Judgment of Sentence Entered November 16, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0002237-2021

BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY MURRAY, J.: FILED: October 28, 2024

Jason Brown (Appellant) appeals from the judgment of sentence

imposed following his non-jury convictions of one count each of third-degree

murder, persons not to possess firearms, and possession of a firearm without

a license.1 We affirm.

The trial court thoroughly detailed the evidence presented at trial in its

Pa.R.A.P. 1925(a) opinion:2

The credible evidence … established that on February 8,

2021, at approximately 8:48 p.m., police officers from the City of

Pittsburgh Bureau of Police were dispatched to 4407 Davison

Street in the Lawrenceville neighborhood of the City of Pittsburgh

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1 18 Pa.C.S.A. §§ 2502(c); 6105(a)(1); 6106(a)(1). We hereinafter

collectively refer to Appellant’s convictions of persons not to possess firearms

and possession of a firearm without a license as “the firearms offenses.”

2 The trial judge who authored the Rule 1925(a) opinion, the Honorable

Anthony Mariani, presided as the factfinder at Appellant’s non-jury trial.

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for a report of a female being shot in [a] vehicle. Dispatch also

advised that the female had crashed the vehicle into a utility

pole[,] and a black male with dreadlocks was seen running from

the vehicle. Upon the arrival of police officers, it was observed

that a red Ford Fiesta [(the Fiesta or the vehicle)] had crashed

into a … utility pole in front of 4407 Davison Street. The victim in

this case, Katara Bray [(the victim)], was found with a gunshot

wound to the side of her head. Emergency medical personnel

pronounced her dead at the scene. Officers observed that the

passenger door of the Fiesta was ajar. Broken glass was observed

on the ground next to the driver’s front door, consistent with

gunshots being fired from inside the vehicle.

While at the scene, police officers observed that both the

driver[’s] side and front passenger side airbags of the Fiesta

had deployed. Two nine millimeter [bullet] casings were found in

the Fiesta. Recovered from the passenger side floorboard

of the Fiesta was hospital discharge paperwork for

[Appellant]. Police also recovered from the vehicle two cell

phones, one belonging to [the victim], and the other belonging

to [Appellant]. Police officers also found a latent fingerprint on

the exterior passenger side of the door handle of the vehicle,

matching the [finger]print of [Appellant].

The autopsy of [the victim] disclosed that she sustained a

contact wound to the right midline posterior skull[,] and a second

contact wound [located] posterior right midline of the neck. In

common parlance, the gunshot wounds were below the right

earlobe and in the right shoulder/neck area. The manner of death

was determined as homicide.

Trial Court Opinion, 1/24/24, at 2-3 (emphasis added). The medical examiner

who performed the victim’s autopsy testified the victim’s injuries were

consistent with the shooter having been in the vehicle’s front passenger seat

at the time of the shooting. See N.T., 8/23/22, at 15-16 (unpaginated).

The trial court detailed surveillance video evidence the Commonwealth

presented at trial:

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Surveillance video from [a tavern] showed a male running

from the 4400 block of Davison Street. The male was wearing a

dark hooded sweatshirt, light colored pants and a light-

colored t-shirt under the sweatshirt or jacket. The male was also

wearing distinctive black and white shoes. The hood of the

sweatshirt was up and the video disclosed that the male had

dreadlocks hanging out of the hood.

Surveillance audio/video from a … camera at a nearby

residence disclosed that two gunshots could be heard at or near

the time of the [in]cident. The audio portion of the video revealed

a gunshot, a pause, a gunshot, a pause then a crash. [In the

video, a] person wearing distinctive black and white shoes,

dark clothing and light-colored pants can be seen fleeing the

scene.

Additional surveillance footage from a Giant Eagle

supermarket disclosed that [earlier in the day] on February 8,

2021, [Appellant, the victim,] and their daughter went to Giant

Eagle…. [The victim] can be observed wearing the same clothes

she was wearing when she was found deceased. [Appellant]

was wearing a dark hooded sweatshirt, light[-colored]

pants and black and white shoes. His dreadlocks were

hanging outside the hood of the sweatshirt.

Trial Court Opinion, 1/24/24, at 4-5 (emphasis added).

The trial court summarized the trial testimony of the Commonwealth’s

eyewitnesses:

Brian Narr [(Brian)] testified at trial that he resided [at]

4407 Davison Drive. On February 8, 2021[,] around 8:50 p.m.[,

Brian] was in his residence and heard [a] loud crash. He

immediately went outside and observed that the [collision

involving the Fiesta] occurred in front of his residence. [Brian]

observed [the victim,] who appeared to be seriously injured.

[Brian] also observed a light-skinned black male with short

dreadlocks wearing a tight hat and[, Brian] believed[,] blue

jeans. The male fled toward 45th Street. [Brian] provided

detectives with video footage [taken from a residential

surveillance] camera that recorded a portion of the events.

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Jordan Narr [(Jordan)] testified that he was Brian[’s] [] son

and [that Jordan] was with [Brian] in their residence on February

8, 2021[,] around 8:50 p.m. At approximately that time, [Jordan]

heard a loud crash. [Jordan] testified that he went outside with

his father and he observed a male in the passenger side seat of

the Fiesta reaching for something on the passenger side floor.

[Jordan] observed the male grab a handgun, exit the Fiesta and

run toward 45th Street. [Jordan] described the male as a

young[,] light-skinned black male[, who was]

approximately 5’9” tall. The male had dreadlocks3 that

came to his neck area and was wearing a winter tossle cap.

Chad Markle [(Markle)] testified that he resided at 4406

Davison Street[. O]n February 8, 2021[,] around 8:50 p.m.[,

Markle] was in his residence with his wife. They heard a loud

noise outside. [Markle] immediately looked through a window and

observed the Fiesta crashed into the utility pole. He also observed

someone fleeing the scene. [Markle] testified that the person was

wearing dark clothes and appeared to have dreadlocks.

Adam Stroia [(Stroia)] testified that he resided at 4408

Davison Street[. O]n February 8, 2021[,] at approximately 8:50

p.m.[, Stroia] heard a large bang or crash. [Stroia] immediately

opened his front door to see what happened and noticed the Fiesta

crashed into a utility pole. He observed a black male with

dreadlocks and wearing dark clothing fleeing the scene and

running toward 45th Street.

Trial Court Opinion, 1/24/24, at 3-4 (emphasis and footnote added).

Finally, the trial court described the police investigation:

During the course of the investigation, police learned that

[the victim] had a child with [Appellant].4 Lanice Bowers [(Ms.

Bowers), the victim’s] close friend, told police that on the day of

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3 At the time of the murder, Appellant, a light-skinned black male, was 24

years old, 5’11” tall, and had dreadlocks. See Criminal Complaint, 2/25/21,

at 1 (unpaginated); Commonwealth Ex. 46 (picture of Appellant taken shortly

before the victim’s murder).

4 The victim had two other children with the sole defense witness in this case,

Justin Brownfield (Brownfield). N.T., 8/29/22, at 75.

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the homicide, [the victim] thought that she was pregnant.

[Ms. Bowers testified that the victim had stated she] did not

want to be pregnant with [Appellant’s] child.5 Ms. Bowers

also testified that around 7:30 p.m. on February 8, 2021 [(i.e.,

approximately one hour before the victim’s murder)], she

was with [Appellant] and [the victim]. [Appellant] started begging

[the victim] to drop him off somewhere. [According to Ms.

Bowers, the victim] did not want to take [Appellant] anywhere but

after several minutes [of Appellant’s repeated requests, the

victim] agreed [to transport Appellant]. [The victim] and

[Appellant] left the house together [and entered the Fiesta,] so

[that the victim] could [drive Appellant] where he wanted to go.6

Ms. Bowers testified that when she saw [Appellant] that

day[,] he was wearing a black hoodie, a white t-shirt[,] gray

or dark pants[,] and his dreadlocks were in a ponytail.

The Commonwealth also introduced a photograph of

[Appellant] wearing distinctive black and white shoes and

holding a firearm with a black handle and a silver frame. The

photograph was recovered from [the victim’s] phone. A forensic

examination of [the victim’s] phone indicated that the photograph

was sent to her Facebook account from the Facebook account of

“Hoova Jo” via Facebook Messenger on January 30, 2021[, nine

days prior to the murder]. The “Hoova Jo” Facebook page

contains multiple photographs of [Appellant]. The examination

also revealed that [Appellant] and [the victim] exchanged other

messages using these Facebook accounts.

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5 Ms. Bowers confirmed that the victim was sexually “active with both []

Brownfield and [Appellant] leading up to the timeframe of” the murder. N.T.,

8/29/22, at 56. Ms. Bowers testified, “[Appellant] was the only [] person [the

victim] was saying she wish[ed the baby] wasn’t” his. Id.

6 Ms. Bowers testified, “[Appellant] was upset. He wanted to get wherever

he was going.” N.T., 8/29/22, at 48 (emphasis added). Ms. Bowers’

testimony indicates no other person left with Appellant and the victim in the

Fiesta. Id. at 48-49; see also N.T., 8/23/22, at 35-36 (unpaginated)

(testimony of police officer involved in the investigation that the Fiesta’s back

seats contained multiple items, and “[t]he way the items … in the backseat

were placed, [the officer] really couldn’t see any space that a person would

be[]” able to fit).

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[Appellant] was interviewed by homicide detectives [four

days after the murder]. He denied responsibility for the homicide

but he did acknowledge that he was with [the victim] just prior to

the incident. [Appellant] also acknowledged that he may

have been the last person to see [the victim] alive[,] and he

feared he would be blamed for her murder. [Appellant] informed

the detectives that he wanted to go to Greensburg, Pennsylvania,

on February 8, 2021, to visit a lady friend and [the victim drove

Appellant in her car and] dropped [Appellant] off in Lawrenceville

so he could get a ride to Greensburg. When asked by detectives

for the name and address of the person who was going to take

him to Greensburg[,] or for the address of the lady friend,

[Appellant] refused to provide an answer.

Trial Court Opinion, 1/24/24, at 5-6 (emphasis and footnotes added).

Approximately two weeks after the murder, police arrested Appellant

and charged him with criminal homicide7 and the firearms offenses.

Appellant’s non-jury trial commenced on August 22, 2022. At the close of the

Commonwealth’s case-in-chief, Appellant’s counsel moved for judgment of

acquittal on all counts. N.T., 8/29/22, at 63. Defense counsel claimed (a) the

Commonwealth failed to prove Appellant’s identity as the perpetrator beyond

a reasonable doubt; and (b) the testimony of certain Commonwealth

witnesses was conflicting. Id. at 64, 66. The trial court denied the motion

for judgment of acquittal. Id. at 73. The court specifically found that the

“Commonwealth [] produced sufficient evidence with regard to

identification….” Id.

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7 18 Pa.C.S.A. § 2501.

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Appellant called Brownfield as his only witness. Brownfield testified he

and the victim were separated at the time of her murder and had two children

together. Id. at 75. Appellant introduced evidence of text messages

Brownfield sent to the victim three days before her murder. Id. at 76.

Brownfield conceded that in one of these messages, he stated he “hates [the

victim’s] guts.” Id. He further conceded that the victim had filed a petition

for protection from abuse (PFA) against Brownfield before her murder.8 Id.

at 77; see also Defense Ex. A (final PFA order concerning Brownfield).

Brownfield testified that at the time of the victim’s murder, he was at

his place of employment, located in West Virginia. Id. at 82. On cross-

examination, Brownfield confirmed (a) he consented to a police search of his

cell phone in connection with the murder investigation; and (b) at the time of

the murder, Brownfield had short hair.9 Id. at 85-86.

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8 The victim’s mother, Tara Evans (Evans), testified that at the time of the

murder, the victim had an active PFA order against Brownfield. N.T., 8/29/22,

at 40; see also id. at 39-40 (Evans stating Brownfield had perpetrated

domestic violence against the victim).

9 Ms. Bowers testified that she had seen Brownfield in the days leading up to

the murder, and his hairstyle “wasn’t long.” N.T., 8/29/22, at 61. Evans also

testified she saw Brownfield and Appellant shortly before the murder. Id. at

31, 33. Evans stated Brownfield was “[c]lean cut. Hair short.” Id. at 33.

Whereas Appellant “had dread[lock]s a little bit pas[t] his shoulders.” Id. at

31. Evans testified she could not recall the clothes Appellant was wearing on

the day of the murder. Id. at 36.

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After considering closing arguments, the trial court convicted Appellant

of the above-mentioned charges.10 In rendering its verdict, the trial court

stated in relevant part:

I’m satisfied beyond a reasonable doubt as to identification. The

cumulation of all this evidence, circumstantial as it may be,

nonetheless point[s] to [Appellant] and [Appellant] alone. Even

[Appellant’s] own statement to the [police] was that he was the

last person with [the victim] that [Appellant] knew of.

Id. at 131.

The trial court sentenced Appellant on November 16, 2022. The court

imposed an aggregate prison term of 26-52 years. Appellant filed a post-

sentence motion on November 21, 2022. Appellant claimed, inter alia, the

evidence “was insufficient as a matter of law to find [Appellant] guilty of any

of the charges.” Post-sentence Motion, 11/21/22, ¶ 3(b). The trial court

denied the post-sentence motion on August 17, 2023,11 without a hearing.

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10 The trial court found the evidence did not support a guilty verdict for first-

degree murder. N.T., 8/29/22, at 131-33. The court concluded, “I do not

believe the evidence rises to th[e] level” of establishing premeditation,

“despite the fact that it certainly points that way.” Id. at 133.

11 The trial court denied Appellant’s post-sentence motion 269 days after it

was filed. Our Rules of Criminal Procedure mandate a trial court “shall decide

[a] post-sentence motion, including any supplemental motion, within 120

days of the filing of the motion.” Pa.R.Crim.P. 720(B)(3)(a) (emphasis

added). Moreover, the trial court clerk of courts never entered an order

deeming Appellant’s post-sentence motion denied by operation of law after

120 days. Id. (“If the judge fails to decide the motion within 120 days, or to

grant an extension as provided in paragraph (B)(3)(b), the motion shall be

deemed denied by operation of law.”); see also Pa.R.Crim.P. 720(B)(3)(c)

(“When a post-sentence motion is denied by operation of law, the

clerk of courts shall forthwith enter an order on behalf of the court….”).

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Appellant filed a notice of appeal on September 5, 2023, within 30 days

of the trial court’s order denying his post-sentence motion.12 Appellant and

the trial court have complied with Pa.R.A.P. 1925.

Appellant presents a single issue for review:

Was the evidence insufficient to support [Appellant’s] convictions

for third-degree murder and [the] firearm offenses because the

evidence failed to establish that [Appellant] was the perpetrator?

Appellant’s Brief at 3.

A sufficiency claim “presents a question of law, for which our standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

Packer, 168 A.3d 161, 166 (Pa. 2017).

When reviewing a sufficiency of the evidence claim, this Court

must view the evidence and all reasonable inferences to be drawn

from the evidence in the light most favorable to the

Commonwealth as verdict winner, and we must determine if the

evidence, thus viewed, is sufficient to prove guilt beyond a

reasonable doubt. This Court may not substitute its judgment for

that of the factfinder. If the record contains support for the

verdict, it may not be disturbed.

Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2020) (citations

omitted). “[I]t is the fact-finder’s province to weigh the evidence, determine

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12 The trial court’s above-mentioned non-compliance with Pa.R.Crim.P. 720

constitutes a breakdown in the court’s operation, and excuses Appellant’s

facially untimely notice of appeal. See Commonwealth v. Patterson, 940

A.2d 493, 499 (Pa. Super. 2007) (“[T]he trial court’s failure to comply with

Rule 720 constitutes a breakdown that excuses the untimely filing of

[a]ppellant’s notice of appeal.”); see also Pa.R.A.P. 903(a) (a notice of appeal

“shall be filed within 30 days after the entry of the order from which the appeal

is taken.”).

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the credibility of witnesses, and believe all, part, or none of the evidence

submitted.” Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013); see

also Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019) (“[W]hen

appellate review involves the trial court’s findings of fact and credibility

determinations, those findings are binding on the reviewing court if they find

support in the record[.]” (citation omitted)).

In applying the above test, we may not weigh the evidence

and substitute our judgment for that of 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.

Commonwealth v. Peters, ___ A.3d ___, 2024 PA Super 171, at **11-12

(Pa. Super. filed Aug. 7, 2024) (en banc) (citation omitted).

“The Commonwealth may sustain its burden of proving every element

of the crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Smith, 206 A.3d 551, 557 (Pa. Super. 2019)

(citation omitted; emphasis added); see also Commonwealth v. Arrington,

86 A.3d 831, 840 (Pa. 2014) (same). “[T]he fact that the evidence

establishing a defendant’s participation in a crime is circumstantial does not

preclude a conviction where the evidence[,] coupled with the reasonable

inferences drawn therefrom[,] overcomes the presumption of innocence.”

Commonwealth v. Sebolka, 205 A.3d 329, 337 (Pa. Super. 2019) (citation

omitted). “Although a conviction must be based on more than mere suspicion

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or conjecture, the Commonwealth need not establish guilt to a mathematical

certainty.” Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013)

(citation omitted).

The facts and circumstances need not be absolutely incompatible

with the defendant’s innocence, but the question of any doubt is

for the [fact-finder] unless the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be

drawn f[ro]m the combined circumstances.

Commonwealth v. Whitacre, 878 A.2d 96, 99 (Pa. Super. 2000) (en banc)

(citation omitted).

“In addition to proving the statutory elements of the crimes charged

beyond a reasonable doubt, the Commonwealth must also establish the

identity of the defendant as the perpetrator of the crimes.”13

Commonwealth v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (citation

omitted). It is settled that “[e]vidence of identi[ty] need not be positive

and certain to sustain a conviction.” Commonwealth v. Orr, 38 A.3d

868, 874 (Pa. Super. 2011) (en banc) (emphasis added; citation omitted).

[E]ven if the Commonwealth presented only circumstantial

evidence and offered no positive identification of the assailant, we

may not weigh the evidence and substitute our judgment for the

fact-finder as long as the evidence was sufficient to prove [the

accused’s] guilt.

Commonwealth v. Robertson, 874 A.2d 1200, 1206 (Pa. Super. 2005).

In Orr, this Court further explained:

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13Here, the only element that Appellant challenges is his identity as the

perpetrator.

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Although common items of clothing and general physical

characteristics are usually insufficient to support a conviction,

such evidence can be used as other circumstances to establish the

identity of a perpetrator. Commonwealth v. Minnis, 458 A.2d

231, 233-34 (Pa. Super. 1983). … Given additional evidentiary

circumstances, “any indefiniteness and uncertainty in the

identification testimony goes to its weight.” Id. at 233.

Orr, 38 A.3d at 874 (some citations modified).

Instantly, Appellant claims the Commonwealth failed to adduce

sufficient evidence to prove his identity as the perpetrator beyond a

reasonable doubt. See Appellant’s Brief at 8-13. Appellant argues, “while

witness testimony established that [Appellant] was with [the victim] shortly

before the killing, there was no testimony that [Appellant] was seen in

possession of a firearm on the day of the killing.” Id. at 9. Appellant claims

the trial court improperly overlooked “evidence [that] identifies [] Brownfield

as a potential alternative suspect in this case.” Id. at 10. Appellant

emphasizes the defense presented evidence that Brownfield sent the victim a

text message, three days before the murder and in violation of a PFA order,

wherein Brownfield stated he “hates [the victim’s] guts.” N.T., 8/29/22, at

77. See Appellant’s Brief at 10; see also id. at 9 (asserting the “underlying

incident of abuse that triggered the PFA [o]rder involved a weapon.” (citation

omitted)).

Appellant argues the “circumstantial evidence [did not] prove[] to a

moral certainty that [Appellant] was the perpetrator of this killing.” Id. at

8 (emphasis added) (citing Commonwealth v. Bybel, 611 A.2d 188, 189

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(Pa. 1992)).14 Appellant claims, “[t]his case is arguably analogous to the

Supreme Court’s decision in … New,” which we address below. Appellant’s

Brief at 10; see also id. at 10-12 (analyzing New).

The Commonwealth counters it proved Appellant’s identity as the

perpetrator beyond a reasonable doubt; thus, his convictions are supported

by sufficient evidence. See Commonwealth Brief at 13-19. “[W]hile it is true

that there was no eyewitness who saw [Appellant] shoot the victim in the

head, it is well settled that the Commonwealth may sustain its burden of

proving” the perpetrator’s identity “by means of wholly circumstantial

evidence.” Id. at 13 (citing Arrington, supra). The Commonwealth

emphasizes the following evidence:

• The medical examiner who performed the victim’s autopsy testified her

wounds “were consistent with the shooter having been in the passenger

seat of the [] vehicle.” Id. at 15;

• Police investigation of the vehicle revealed Appellant’s fingerprint was

on the passenger door handle, and his cell phone was found in the

vehicle. Id. at 16;

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14 The Bybel Court cited our Supreme Court’s earlier decision in

Commonwealth v. Woong Knee New, 47 A.2d 450 (Pa. 1946), for the

following proposition:

The requirement of the law is that in order to warrant a conviction

the facts and circumstances proved must be of such character as to

produce a moral certainty of the guilt of the accused beyond any

reasonable doubt….

Bybel, 611 A.2d at 189 (emphasis added) (quoting New, 47 A.2d at 455

(citation omitted)).

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• Several residents of Davidson Street who heard the vehicle crash

testified they saw a black male, who had dreadlocks and wore dark

clothing, running from the scene. Id. at 15;

• Two video surveillance cameras located nearby the scene “depicted an

individual wearing a dark-colored hoodie … and distinctive black and

white sneakers….” Id. at 16;

• Ms. Bowers testified that approximately an hour prior to the murder,

she had seen Appellant and the victim enter the vehicle, “with

[Appellant] as [the] lone passenger[,]” and Appellant was wearing a

black hoodie and had dreadlocks. Id. at 14, 16;

• Surveillance video taken at Giant Eagle earlier on the day of the murder

depicted Appellant “wearing a black[,] hooded sweatshirt as well as []

distinctive shoes with black on the bottom and a large amount of white

on top….” Id. at 16.

Finally, the Commonwealth argues the trial court acted within its purview as

fact-finder in rejecting Appellant’s theory that Brownfield murdered the victim.

Id. at 17 (“[N]ot only was there nothing offered that would indicate that

Brownfield was in … [the vehicle] on this occasion (or that he knew [of the

victim’s] whereabouts), there was actually express evidence put forth at trial

that Brownfield did not have dreadlocks on February 8, 2021….”).

Preliminarily, we address Appellant’s reliance on New, supra. Recently,

this Court recently summarized the holding in New:

In New, our Supreme Court explained,

[w]hen two equally reasonable and mutually inconsistent

inferences can be drawn from the same set of

circumstances, a jury must not be permitted to guess

which inference it will adopt, especially when one of the

two guesses may result in depriving a defendant of his

life or his liberty. When a party on whom rests the

burden of proof in either a criminal or a civil case, offers

evidence consistent with two opposing propositions, he

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proves neither. [The Supreme Court has held that] [t]he

evidence in this case was utterly insufficient if

submitted under adequate and proper instructions

to convince an intelligent and fair-minded jury of the

defendant’s guilt to a moral certainty so strong as not to

be weakened or disturbed by any reasonable doubt.

New, 47 A.2d at 468 (emphasis added). In New, the Court

reversed the defendant’s judgment of sentence

(a) because the charge of the trial [c]ourt was so

inaccurate and misleading, and (b) also because the

Commonwealth’s evidence was so weak and the evidence

of alibi was so strong, [the Supreme Court] said: “The

jury must also be instructed that ‘the evidence in support

of the alibi may, with other facts in the case, raise the

reasonable doubt of guilt which entitled a defendant to

acquittal.’” The opinion of [the Supreme] Court was

predicated upon the failure of the trial [j]udge to “make

it clear to the jury that the evidence as to an alibi may

generate in the minds of the jury a reasonable doubt of

the defendant’s guilt.” The trial [j]udge’s charge in that

case was filled with statements which, because of

inaccuracy or ambiguity, were highly prejudicial….

Commonwealth v. Richardson, … 140 A.2d 828, 839 (Pa. 1958)

(explaining New) (some punctuation modified, citations omitted).

Regardless of the validity of New,FN [a]ppellant cites no

inaccuracies in the trial court’s jury instructions. …

FN In Commonwealth v. Martin, … 142 A.2d 467 (Pa. [Super.]

1958), [this] … Court questioned the validity of New “to the effect

that the evidence required to sustain the conviction must produce

a moral certainty of the guilt of the accused beyond a reasonable

doubt.” Id. at 4[69].

The language of … the whole line of cases on which the

moral certainty doctrine was based, have been

repudiated by the courts of this Commonwealth, and it is

now clearly established that the moral certainty test has

no place in the criminal law of Pennsylvania….

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Id. …

Commonwealth v. Ferrante, 313 A.3d 176, 862 WDA 2022 (Pa. Super. filed

Jan. 12, 2024) (unpublished memorandum at 30-31)15 (footnote in original).

In the instant case, as in Ferrante, Appellant “cites no inaccuracies in

the trial court’s jury instructions.” Id. (unpublished memorandum at 31).

Thus, we disagree with Appellant’s claim that New is “arguably analogous[.]”

Appellant’s Brief at 10. Moreover, our Supreme Court has instructed:

The facts and circumstances proved must, in order to warrant a

conviction, be such as to establish the guilt of the defendant, not

necessarily beyond a moral certainty, nor as being absolutely

incompatible with his innocence, but at least beyond a reasonable

doubt.

Int. of J.B., 189 A.3d 390, 408 (Pa. 2018) (citation omitted; emphasis

added); see also id. at 409-13 (thoroughly analyzing New and its progeny).

Thus, Appellant’s claim the Commonwealth was required to prove his identity

“to a moral certainty,” Appellant’s Brief at 8, is contrary to the law. J.B., 189

A.3d at 408; see also Martin, 142 A.2d at 469.

In its Rule 1925(a) opinion, the trial court, as fact finder, determined

the Commonwealth proved Appellant’s identity as the perpetrator beyond a

reasonable doubt:

While no witness actually observed [Appellant] shoot [the

victim], th[e trial] court believes that the circumstantial evidence

was sufficient to identify him as the shooter in this case. The

____________________________________________

15 Pursuant to Pa.R.A.P. 126(b), unpublished non-precedential memorandum

decisions of the Pennsylvania Superior Court filed after May 1, 2019, may be

cited for their persuasive value.

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evidence in this case established that [Appellant] and [the victim]

were together at Giant Eagle on February 8, 2021[,] at

approximately 12:40 p.m. Surveillance video discloses that

[Appellant] was wearing a dark hooded sweatshirt, light-colored

pants and he had dreadlocks that were hanging outside the hood.

Later that day, when [Appellant entered] … the Fiesta with [the

victim] at approximately 7:30 p.m., he [wa]s still wearing those

clothes. The eyewitnesses to the incident generally provide

the same description of the person who fled the scene[,]

and that description matches what [Appellant] is wearing

in the Giant Eagle surveillance video. There is also

evidence that shoes [Appellant] was wearing a week before

the homicide (Commonwealth Exhibit 46) were the same

shoes worn by the person fleeing the scene of the homicide

(black on top and white on the bottom). [Appellant’s] cell phone

and medical record were found in the Fiesta and his fingerprint

was on the passenger door handle. There is no question [that

Appellant] was in the Fiesta near the time of the murder.

[Appellant] had access to a firearm. Two [bullet] casings were

recovered from the inside of the vehicle. The evidence in this case

proved beyond a reasonable doubt that the shots that killed

[the victim] came from inside the vehicle very near in time

[to when Appellant] is confirmed to have been in the

vehicle.

Moreover, [Appellant’s] explanation [in his police interview]

of the events of February 8, 2021, was nonsensical. [Appellant]

claimed that he wanted to go to Greensburg, Pennsylvania.

However, [Appellant] claim[ed] he had [the victim] drop him off

in Lawrenceville. These locations are far apart. [Appellant]

refused to disclose who picked him up [i]n Lawrenceville and he

refused to provide the address to which he was going in

Greensburg. [Appellant’s] version of what actually occurred

[o]n the evening of February 8, 2021, was totally self-

serving and uncorroborated. Th[e trial] court … believes that

identification was proved beyond a reasonable doubt in this case.

Trial Court Opinion, 1/24/24, at 8-9 (emphasis and paragraph break added;

some capitalization modified).

The trial court’s findings are supported by the record, and we agree with

its conclusion. See id. Moreover, the trial court, as fact-finder, was free to

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“believe all, part, or none of the evidence,” and it was solely the court’s

purview to “determine the credibility of witnesses,” including Brownfield.

Sanchez, 82 A.3d at 972. Viewed in the light most favorable to the

Commonwealth, the circumstantial evidence was clearly sufficient to support

the fact-finder’s conclusion that Appellant was responsible for the victim’s

murder. See, e.g., Arrington, 86 A.3d at 841 (rejecting appellant’s

sufficiency challenge to his convictions of first-degree murder and gun

offenses, where “appellant had been romantically involved with [decedent;

appellant] had beaten [decedent] on numerous occasions”; and decedent had

been “shot [] in the neck during an altercation that occurred near the home

of appellant’s mother.” (some capitalization modified)); Whitacre, 878 A.2d

at 100 (holding circumstantial evidence was sufficient to establish beyond a

reasonable doubt appellant’s identity as murder perpetrator, where (a) police

“identified [] two [bullet] shell casings found in [deceased’s] residence as

having been from a shotgun owned by appellant”; (b) “three witnesses saw a

white pickup truck resembling the one owned by appellant in the vicinity of

[decedent’s] residence in the minutes both right before and right after the

shootings”; and (c) “appellant was unhappy with the progress of his lawsuit

against [decedent.]” (some capitalization modified)). Thus, Appellant’s

sufficiency challenge lacks merit.

Judgment of sentence affirmed.

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DATE: 10/28/2024

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