Com. v. Greene, D.

J-A15005-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DANTE GREENE :

:

Appellant : No. 1025 EDA 2020

Appeal from the Order Entered March 9, 2020

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

No(s): CP-51-CR-0007265-2016

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 10, 2021

Dante Greene appeals from his March 9, 2020 judgment of sentence of

life without the possibility of parole (“LWOP”), which was imposed following

his convictions for first degree murder and related offenses. After thorough

review, we affirm.

On February 21, 2016, at approximately 2:30 a.m., Kyle Powell

(“Powell”) was sitting at the corner of 66th and Greenway, across the street

from the La Sierra Market in the city of Philadelphia. See N.T. Jury Trial,

1/15/20, at 34-35. Powell was waiting for his girlfriend, Jacqueline Angelo

(“Angelo”), to return from performing a “trick” when he observed Appellant

and another man walking back and forth across Greenway. Id. at 42-43.

Appellant was wearing a gray hoodie with a yellow and orange emblem. Id.

at 43. Powell knew Appellant to sell drugs “down the street” from the Market

and had seen Appellant in the area “all the time.” Id. at 39. Since Powell and

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Appellant had gotten into an argument three days earlier, Powell paid close

attention to Appellant’s movements. Id. at 43. After Appellant and the

unknown man had walked by him twice, Angelo arrived. Id. at 44.

As Angelo exited the vehicle, Wilson Diaz (“the victim”), who was

standing across the street near the back of the Market, said, “[h]ey mommy,

come here real quick.” Id. at 44-46, 69, 149. Powell pointed out Appellant

and another man that she did not know. Id. at 145. Prior to that night,

Angelo had seen Appellant every other day for a year and a half. Id. at 166.

She also noted that Appellant was wearing a gray hoodie. Id. at 167. Powell

informed Angelo that he “didn’t like the vibe” and wanted to leave the area.

Id. at 145. Since Powell was “uncomfortable” with Appellant’s behavior,

Angelo ignored the victim’s comment and they began walking away toward

Gould Street. Id. at 46. As they were leaving, both saw Michael Robertson

(“Robertson”), walking onto Greenway from 66th Street towards the victim.

As they turned the corner, they saw Appellant, Robertson, and the victim

standing close to each other and engaged in a conversation. Id. at 47.

Robertson lived next door to the Market and was selling drugs at 66th

and Greenway at that time. N.T. Jury Trial, 1/16/20, at 18-19. Robertson

encountered the victim, sold him marijuana, and walked back to his front

steps. Id. at 19. Robertson heard an argument ensue between the victim

and Appellant. Id. at 23. Appellant was demanding that the victim pay back

the money that the victim owed Appellant. Id. at 23-25. Robertson heard a

gunshot, then turned to see Appellant walking back towards the victim. Id.

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at 25. He heard Appellant say, “[f]uck this shit,” and saw Appellant shoot the

victim a second time, before fleeing the area. Id. at 36.

Meanwhile, Powell and Angelo were sitting on the steps on Gould Street

waiting for “somebody to serve us” drugs when they heard a gunshot, a pause,

and then a second gunshot. Id. at 48, 151-52. After the shooting concluded,

Powell and Angelo returned to Greenway and also found the victim lying on

the ground bleeding. Id. at 49, 152-53. They observed Robertson and a male

Powell knew as JR near the victim. Id. at 50, 156-57. Robertson called an

ambulance. See N.T. Jury Trial, 1/16/20, at 26-27. Believing the victim to

be deceased, Powell and Angelo left before the police arrived. See N.T. Jury

Trial 1/15/20, at 51, 157-58.

An investigation followed. Officers obtained video footage from two

surveillance cameras connected to the Market which captured the shooting.

Id. at 216-17. The footage showed the victim standing in the gated yard

behind the Market. The victim than walked just outside the gate as Robertson

approached the entrance to the yard. After interacting for approximately one

minute, Robertson and the victim moved inside the yard where they engaged

in some sort of transaction. Id. at 219-20.

While Appellant and Robertson are still standing in the yard, Appellant

entered the yard wearing a gray hoodie with an X-shaped emblem. Id. at

242. The three men appeared to be talking and exchanging items inside the

gated yard for approximately two minutes. Id. at 233-36. Appellant and

Robertson than exited the gated yard. Id. at 223. Robertson left, but

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Appellant quickly returned and continued to interact with the victim in the

gated yard’s entrance. Within one minute, the victim began to retreat into

the yard, and Appellant fired a gunshot directly at the victim. Id. at 225.

Seconds later, Appellant fired another gunshot directly at the victim. The

victim fell to the ground and Appellant exited the frame. Seconds later,

Appellant returned and began searching the victim’s pockets. While Appellant

was still searching the victim’s pockets, Robertson returned, looked at the

victim, and left.

Later that morning, Robertson, Powell, and Angelo were interviewed by

police. Id. at 158-60. All three gave detailed descriptions of Appellant and

identified him from a single photo array. Appellant was arrested and charged

with murder and related crimes. At the preliminary hearing, surveillance video

of the incident was admitted, and Robertson testified, identifying Appellant as

the shooter. N.T. Preliminary Hearing, 8/2/16, at 20. Robertson also testified

that “a lot of people” had approached him since he talked to the police and

that he was “scared” because “I’m getting threatened every day.” Id. at 22.

At the conclusion of the hearing, all charges were held for court. The

Commonwealth relocated Robertson in an effort to stop the threats he had

been receiving. See N.T. Jury Trial, 1/14/20, at 16.

On September 20, 2019, Appellant filed a motion to suppress the pre-

trial identifications made by Robertson, Powell, and Angelo due to an allegedly

illegally-suggestive identification procedure. The court held a hearing on

Appellant’s motion to suppress. At the conclusion of the hearing, the court

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found that the single-photo array was suggestive, but it also concluded that

each witness had an independent basis for their identifications of Appellant.

N.T. Suppression Hearing, 10/7/19, at 112-13. Accordingly, the court

excluded the photograph, but permitted the witnesses’ identifications to be

introduced by the Commonwealth. Id. After the Commonwealth filed a

motion to reconsider the suppression of the single-photo array, the court held

a second hearing. At the end of the second hearing, the trial court reversed

its suppression order, finding that while the photo array was suggestive the

identifications were nonetheless reliable because each witness “knew exactly

who [Appellant] was.” Id. at 10.

In December of 2019, the Commonwealth applied for a material witness

warrant for Robertson, claiming detectives had been unable to locate or

contact him. The trial court granted the application. However, after numerous

attempts to contact Robertson, his relatives, and his girlfriends, the

Commonwealth was unable to re-establish contact with Robertson.

On January 10, 2020, the Commonwealth filed a motion to admit the

pretrial hearing testimony of Robertson. At a hearing, Detectives Graf and

Joseph Centeno testified about the efforts the Commonwealth had undertaken

to locate Robertson, which included contacting ten hospitals in the area, the

morgue, searching the database of the Pennsylvania prison system, leaving

multiple subpoenas at three residences with which Robertson was believed to

have contact, and employing a task force to surveil another suspected

residence. See N.T. Jury Trial, 1/14/20, at 11-90. At the conclusion of the

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hearing, the court granted the Commonwealth’s motion to introduce

Robertson’s former testimony from the preliminary hearing.

At trial, the Commonwealth read the preliminary hearing testimony of

Robertson to the jury and admitted the surveillance video footage of the

homicide. The Commonwealth also adduced testimony from Powell and

Angelo, who recounted walking down the street when they saw Appellant and

another man walk towards the victim. See N.T. Jury Trial, 1/15/20 at 31-47.

Although neither individual witnessed the shooting, both reported hearing

gunshots. Id. at 48-51. Therefore, the sole testimony positively identifying

Appellant as the shooter came from Robertson’s preliminary hearing

testimony. Ultimately, the jury convicted Appellant of first-degree murder,

carrying a firearm without a license, carrying firearms in public in Philadelphia,

and PIC. The jury found Appellant not guilty of robbery.

On January 21, 2020, Appellant was sentenced to LWOP for first-degree

murder. No further penalty was imposed at the remaining charges. Appellant

filed a post-sentence motion alleging that the evidence was insufficient to

establish his guilt because Robertson’s prior testimony was improperly

admitted, and that the verdict was against the weight of the evidence because

Powell and Angelo allegedly testified that they were under the influence of

narcotics. The trial court denied the post-sentence motion and this timely

appeal followed. Both parties have complied with the mandates of Pa.R.A.P.

1925.

Appellant presents the following issues for our review:

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1. Did the trial court err by denying Appellant’s motion to

suppress identifications made by Jacqueline Angelo and Kyle

Powell?

2. Did he trial court err by granting the Commonwealth’ motion

to admit the preliminary hearing testimony of Michael

Robertson?

3. Was the evidence insufficient to convict [Appellant] on all

charges?

4. Was he jury’s guilty verdict against the weight of the

evidence?

Appellant’s brief at 7.

Appellant’s first claim pertains to the trial court’s denial of his

suppression motion seeking to exclude a photo of Appellant and the out-of-

court identifications that flowed from it. See Appellant’s brief at 23.

Our standard of review of a suppression ruling is as follows:

We determine whether the court’s factual findings are supported

by the record and whether the legal conclusions drawn from them

are correct. Where, as here, it is the defendant who is appealing

the ruling of the suppression court, we consider only the evidence

of the prosecution and so much of the evidence for the defense

which remains uncontradicted when fairly read in the context of

the whole record. If, upon our review, we conclude that the record

supports the factual findings of the suppression court, we are

bound by those facts, and may reverse only if the legal conclusions

drawn therefrom are in error.

Commonwealth v. Pruitt, 951 A2d 307, 317 (Pa. 2008).

A pre-trial identification will not be suppressed as violative of due

process unless the facts demonstrate that the identification procedure was “so

impermissibly suggestive as to give rise to a very substantial likelihood of

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irreparable misidentification.” Commonwealth v. Russell, 209 A.3d 419,

430-31 (Pa.Super. 2019). The reliability of an out-of-court identification is

determined by considering the totality of the circumstances, which includes

but is not limited to: (1) the witness’ ability to observe the criminal act; (2)

the accuracy of the photo array selection and other descriptions; (3) the lapse

of time between the act and any line-up; and (4) any failure to identify the

defendant on prior occasions. See Commonwealth v. Santiago, 855 A.2d

682, 698 (Pa. 2004).

Accordingly, even if an out-of-court identification is suggestive, an in-

court identification is admissible if there exists an independent basis for the

identification. See Commonwealth v. Fisher, 769 A.2d 1116, 1127 (Pa.

2001). In order to determine if an identification resulted from a basis

independent of the suggestive identification procedure, the court considers

the following factors:

The opportunity of he witness to view the criminal at the time of

the crime, the witness’[s] degree of attention, the accuracy of the

witness’[s] prior description of the criminal, the level of certainty

demonstrated by the witness at the confrontation, and the length

of time between the crime and confrontation.

Commonwealth v. Davis, 17 A.3d 390, 394 (Pa.Super. 2011).

At the suppression hearing, Detective Francis Graf testified that he met

with Angelo and Powell hours after the shooting. Both said that they

recognized the person they saw walking toward the victim as a drug-dealer

known to sell drugs at the intersection of 66th and Greenway. See N.T.

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Suppression Hearing, 10/7/19, at 34, 59-60. Powell explained that while he

did not know the individual’s name, he had seen him approximately one

hundred times over the past six months, and described him as a black male

with a dark-complexion, thin build, height of 5’9” to 5’11”, and with a beard

and mustache. Id. at 35. The night of the shooting, Powell saw this individual

wearing a gray hooded sweatshirt with an orange emblem on the front. Id.

at 36. Meanwhile, Angelo also separately identified the man as wearing a gray

hoodie the night of the shooting. While she did not know the individual by

name, she had seen him around the neighborhood “roughly every other day

or so for the last year-and-a-half.” Id. at 43.

Detective Graf searched the police department’s database of pedestrian

and vehicle investigations to identify individuals who had been stopped in the

immediate vicinity of 2029 South 66th Street over the past year and cross-

referenced those results with individuals who matched the physical description

given by the witnesses. Id. at 23. After a review of this database revealed

that Appellant had been stopped several times in that time frame and that he

matched the witness descriptions, Powell and Angelo were separately shown

a single photograph of Appellant. Id. at 32, 44, 54-55. Powell and Angelo

both definitively identified Appellant as the individual in the gray hoodie who

they saw approaching the victim prior to the gunshots. Id. at 22-23, 26-44.

At the conclusion of the suppression hearing, the trial court ruled that

the identification procedure was suggestive and precluded the admission of

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the single-photo array. Id. at 112. However, the court held that the

identifications, including the one at the preliminary hearing, were admissible.

Id. at 113-14. The court explained its reasoning as follows:

[A] single-image photo array is the least desirable form of

identification that there can be. The court knows that. There is

no reason not to put other photos in the array. That is suggestive.

However, clearly, and absolutely, without doubt, these three

witnesses1 have an independent basis for their identifications of

this [Appellant]. They have seen him over a hundred times, each

of them. They know exactly who he is. The only thing they didn’t

know was his name. Had they known his name, a single photo

would have been perfectly fine. They just didn’t know his name

but they knew everything else. They knew exactly who he was.

They have seen him day-in and day-out.

So although the photo array was suggestive, it could have been

done better. So the photo array, itself, will not be able to come

in. The identifications absolutely come in of this [Appellant].

So, therefore, the Court finds that each of them had an

independent basis for their identification of this [Appellant] and

the motion to suppress the identification is denied, in-court

identification denied.

____________________________________________

1 While he has not challenged Robertson’s identification here, in his motion

and at the hearing, Appellant also attacked Robertson’s identification of

Appellant on the same grounds. Robertson can be seen on the surveillance

footage talking to the victim as Appellant approaches. He left the frame before

the shooting took place. Robertson did not know Appellant’s real name but

told police that Appellant “hides out” at the second house from the corner on

Greenway before you reach Upland Street. See Suppression Hearing,

10/7/19, at 46. Robertson described Appellant as a dark-skinned black male,

about 5’10”, 175lbs, approximately twenty-four years old, with a big beard.

Id. Robertson also identified Appellant’s clothing, which was black

sweatpants, a gray hoodie, and white and peach colored Nike sneakers. Id.

at 47. Robertson’s description was used to help procure the single photograph

of Appellant, whom he identified as the shooter. Id.

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Id. at 112-13.

After the Commonwealth filed a motion for reconsideration, a second

hearing was held on the suppression motion. See Motion for Reconsideration,

10/25/19, at 10. After listening to arguments from both sides, the trial court

found that while the photograph identification procedure was suggestive, the

identifications were nevertheless reliable because each witness knew

Appellant. Id. at 9. Accordingly, the trial court reversed its earlier ruling and

held that the Commonwealth could admit the photograph and the out-of-court

identifications at trial. Id. at 10. In its opinion, the court reiterated its

findings from the suppression and reconsideration hearings but also went into

more detail about the reliability of the witness’s identifications under the

totality of the circumstances. See Trial Court Opinion, 8/19/20, at 9.

Our review of the record reveals that the trial court’s factual findings are

supported by the record and its legal conclusions are in line with the relevant

precedent summarized above. The court credited Detective Graf’s testimony

that Powell and Angelo knew Appellant. See Suppression hearing, 10/7/19,

at 34, 43. Detective Graf also testified that they were aware of where

Appellant sold drugs and told him that they were certain in their identifications

since they had seen him approximately one hundred times over the past six

months and every other day for a year and one-half, respectfully. Id. at. 109.

Further, Angelo and Powell’s descriptions of Appellant were corroborated by

the video footage depicting the shooter in a gray hoodie with an emblem on

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the front. See Trial Court Opinion, 8/19/20, at 9. Finally, both identifications

were made within seven to eight hours after the shooting. Id.

In light of the foregoing testimony, the trial court properly concluded

that the victims recognized Appellant based on their own perceptions of him

and not due to the single photo of Appellant shown to them by Detective Graf.

All of the victims provided police with consistent, detailed, and accurate

physical descriptions of Appellant. Accordingly, the trial court did not err or

abuse its discretion when it declined to suppress the identifications made by

Powell and Angelo.

In his second issue, Appellant challenges the trial court’s admission of

Robertson’s preliminary hearing testimony on two grounds. See Appellant’s

brief at 20. First, Appellant attacks the trial court’s unavailability

determination after it found that the Commonwealth made a good faith, albeit

unsuccessful, effort to locate Robertson. Id. at 19. Second, Appellant alleges

that he was not given a full and fair opportunity to question Robertson about

his motive and bias at the preliminary hearing. Id. at 21. We consider each

claim individually below.

Pennsylvania Rule of Evidence 804(b), an exception to the rule against

hearsay, allows for the admission of a witness’s former testimony in certain

limited circumstances:

The following are not excluded by the rule against hearsay if the

declarant is unavailable as a witness:

(1) Former testimony. Testimony that:

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(A) Was given as a witness at a trial, hearing, or lawful

deposition, whether given during the current

proceeding or a different one; and

(B) Is now offered against a party who had – or, in a civil

case, whose predecessor in interest had – an

opportunity and similar motive to develop it by direct,

cross-, or redirect examination.

See Pa.R.E. 804(b). Hence, Rule 804(1) allows for the admission of prior

testimony of an unavailable witness. A declarant is unavailable when he or

she “is absent from the trial or hearing and the statement’s proponent has not

been able, by process or other reasonable means, to procure . . . the

declarant’s attendance.” Pa.R.E. 804(a)(5).

However, before the Commonwealth can introduce the prior testimony

of an unavailable witness, the Commonwealth must first show that it made a

good faith effort to try to produce the live testimony of the witness, yet,

through no fault of its own, was prevented from doing so. See

Commonwealth v. Lebo, 795 A.2d 987, 990 (Pa.Super. 2002). Whether the

Commonwealth has demonstrated a good faith effort to procure the

declarant’s attendance at trial is a question of reasonableness.

Commonwealth v. Blair, 331 A.2d 213, 215 (Pa. 1975) (holding that the

rule “does not require that the Commonwealth establish that the witness has

disappeared from the face of the earth; it demands that the Commonwealth

make a good-faith effort to locate the witness and fail”). It is within the

discretion of the trial court to determine what constitutes a good-faith effort

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to locate a missing witness, and the decision of the court will not be overturned

absent an abuse of discretion. Commonwealth v. Douglas, 737 A.2d 1188,

1196 (Pa. 1999).

At the hearing on Appellant’s motion to exclude the prior testimony,

Detectives Centeno and Graf testified about the police efforts to find

Robertson. See N.T. Jury Trial, 1/14/20, at 11-90. Between October 2019

and January 2020, when trial began, the detectives had checked local

hospitals, Pennsylvania prisons, the morgue, left multiple subpoenas for

Robertson at three different addresses, sent fliers and posters to the police

districts in which all three houses were located, obtained a material witness

warrant for Robertson’s arrest, and used a police database to search for other

addresses associated with Robertson. Additionally, for three days during the

week prior to the start of trial, the Southwest Task Force staked out the house

where Robertson lived with his girlfriend. Id. at 12-24, 39-52, 57-58.

At the conclusion of the hearing, the trial court denied Appellant’s

motion to exclude Robertson’s testimony, finding that while police had not

made “the best of efforts,” there was “a lot of work done by the detectives”

after the signing of the material witness petition. Id. at 90. Accordingly, the

court found that the Commonwealth had met the standard of reasonableness

required to establish unavailability. The trial court also opined that the fact

that the Commonwealth had not sought a material witness warrant until

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December 2019 was of no moment, because it would not have issued one

earlier. Id.

The record supports the trial court’s finding that the Commonwealth’s

efforts constituted a good faith effort to procure Robertson’ attendance at trial.

Accord Commonwealth v. Douglas, 737 A.2d 1188, (Pa. 1999) (finding

that the Commonwealth made a good faith effort to locate a witness where

police searched for the witness at his apartment, his mother’s apartment,

several bars he was known to frequent, and his girlfriend’s house). Police

resources are not unlimited, and the Commonwealth exerted a reasonable

effort to locate Robertson, which is what the good faith standard requires in

this context. See Commonwealth v. Wayne, 720 A.2d 456, 467 (Pa. 1998)

(rejecting argument that Commonwealth did not make reasonable efforts to

find witness because they did not begin looking until four days before trial);

see also Commonwealth v. Blair, 331 A.2d 213, 215 (Pa. 1975) (explaining

that the rule “does not require that the Commonwealth establish that the

witness has disappeared from the face of the earth; it demands that the

Commonwealth make a good-faith effort to locate the witness and fail”).

Accordingly, the first sub-part of Appellant’s claim fails.

Next, Appellant alleges that the admission of Robertson’s prior

testimony violated the confrontation clause because he was denied a full and

fair opportunity to cross-examine Robertson at the preliminary hearing. See

Appellant’s brief at 20.

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Whether the trial court’s admission of Mr. Robertson’s preliminary

hearing testimony violated Appellant’s constitutional right to confront the

witnesses against him is a question of law, for which our review is de novo

and plenary. See Commonwealth v. Mitchell, 152 A.3d 355, 358

(Pa.Super. 2016). Generally, an unavailable witness’s prior recorded

testimony is admissible at trial, and will not offend the right of confrontation,

where the defendant had counsel and a “full and fair opportunity” to cross-

examine that witness at the prior proceeding. Commonwealth v.

Bazemore, 614 A.2d 684, 687 (Pa. 1992).

For a defendant to establish that he did not have a full and fair

opportunity to cross-examine the witness at the previous proceeding, he must

show either that he was deprived of “vital impeachment evidence” at or before

the time of the previous proceeding, or, if he was not, that he was improperly

restricted in his cross-examination of the now-absent witness. Id. at 590

(excluding prior testimony for an unavailable witness on the grounds that the

Commonwealth knew, but did not disclose, vital impeachment evidence before

the earlier proceeding); see also Commonwealth v. Borders, 560 A.2d 758

(Pa. 1989) (prohibiting the use of prior testimony of an unavailable witness

where the trial court improperly restricted trial counsel’s cross-examination of

the witness). “The Commonwealth may not be deprived of its ability to

present inculpatory evidence at trial merely because the defendant, despite

having the opportunity to do so, did not cross-examine the witness at the

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preliminary hearing stage as extensively as he might have done at trial.”

Commonwealth v. Leak, 22 A.3d 1036, 1045 (Pa.Super. 2011).

Appellant does not assert that the Commonwealth withheld vital

impeachment evidence. Instead, he alleges that the Commonwealth

impermissibly restricted his cross-examination of Robertson by objecting

during trial counsel’s questioning regarding the scope of Robertson’s immunity

agreement. See Appellant’s brief at 21. However, a review of the record

belies Appellant’s argument.

At the preliminary hearing, the Commonwealth asked Robertson if he

was promised anything in exchange for his testimony at Appellant’s

preliminary hearing. See Preliminary Hearing, 8/2/16, at 30. Robertson

replied that he had been granted immunity for selling the victim marijuana on

camera immediately prior to the homicide. Id. On cross-examination,

Appellant’s trial counsel asked more than eighty questions about Robertson’s

involvement in the drug deal, his criminal record, and his appearance on the

surveillance video. Id. at 31-46. After trial counsel accused Robertson of

engaging in a larger drug conspiracy, the Commonwealth objected. Id. at 41-

42. The trial court held an off-record sidebar before overruling the objection.

Id. at 42. Trial counsel continued his questioning regarding Robertson’s

alleged involvement in a larger drug dealing conspiracy, at which point

Robertson agreed that on the night of the homicide, he had been involved in

drug activity at 66th and Greenway with Appellant and another man named

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Keys. Id. at 42. The Commonwealth made no further objections and trial

counsel concluded his cross-examination several questions later. Id. at 46.

Since the record reveals that the trial court did not constrain trial

counsel’s inquiry, and that Robertson admitted he was granted immunity for

prosecution for selling marijuana at the time of the murder, we cannot

conclude that Appellant was deprived a full and fair opportunity to cross-

examine Robertson on this specific ground. See Leak, supra at 1045 (“The

Commonwealth may not be deprived of its ability to present inculpatory

evidence at trial merely because the defendant, despite having the

opportunity to do so, did not cross-examine the witness at the preliminary

hearing stage as extensively as he might have done at trial.”). Thus, both of

Appellant’s arguments pertaining to the trial court’s admission of Robertson’s

preliminary hearing testimony fail. No relief is due on Appellant’s second set

of claims.

In his third claim, Appellant challenges the sufficiency of the evidence

to support his convictions for first-degree murder, carrying a firearm without

a license, and carrying a firearm in public. Our standard of review when

considering a challenge to the sufficiency of the evidence is

[w]hether 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 defendant’s guilt may be

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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 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. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017)

(citations and quotation marks omitted).

Appellant’s arguments are not based upon the statutory elements of the

crimes for which he was convicted, but rather the sufficiency of the evidence

to identify him as the perpetrator. See, e.g. Commonwealth v. Smyser,

195 A.3d 912, 915 (Pa.Super. 2018) (“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.”). Specifically, Appellant argues that the evidence

was insufficient because the trial court erred when it found Robertson

unavailable and admitted his preliminary hearing testimony. See Appellant’s

brief at 25-29. Since Robertson’s former testimony was the only evidence

presented identifying Appellant as the shooter, and it should not have been

admitted, Appellant alleges that without Robertson’s testimony the evidence

would have been insufficient to prove his identity as the perpetrator. Id.

Appellant’s argument disregards our standard of review. When

evaluating a sufficiency claim, we consider all of the evidence admitted

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without regard to any claim that some of the evidence was wrongly allowed.

See Commonwealth v. Kane, 10 A.3d 327, 332 (Pa.Super. 2010). Since

Appellant has not advanced any other arguments as to why the evidence was

insufficient to support his convictions, he has failed to persuade us that he is

entitled to relief on this claim. Accordingly, his third claim for relief fails.

In his final issue, Appellant seeks a new trial on the ground that the

verdicts were against the weight of the evidence. Such a claim is addressed

in the first instance to the discretion of the trial court. As we explained in

Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa.Super. 2013):

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 if he were a juror. Trial judges,

in reviewing a claim that the verdict is against the weight of the

evidence, do not sit as the thirteenth juror. Rather, the role of

the trial judge is to determine that 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.

Id. In short, a trial court should not overturn a verdict on this basis unless

“it is so contrary to the evidence as to shock one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016).

Our 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

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and reasons advanced by the trial judge when reviewing a 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted; emphasis omitted). “An abuse of discretion is not a mere error in

judgment but, rather, involves, bias, ill will, partiality, prejudice, manifest

unreasonableness, or misapplication of law.” Commonwealth v. Kane, 10

A.3d 327, 333 (Pa.Super. 2010).

Appellant argues that the respective testimony of Powell and Angelo that

they saw Appellant approach the victim moments before the shooting was

incredible, since they also admitted to being under the influence of multiple

narcotics on the night in question. See Appellant’s brief at 31. Appellant also

alleges that since Robertson was “a few feet away when the killer fired the

fatal shots,” he was “a possible co-conspirator” in the homicide and, thus, had

motive to lie. Id. at 31-32.

The trial court, in denying Appellant’s claim, addressed Appellant’s claim

as follows:

In the instant matter, the Commonwealth presented evidence

that, if believed by the jury would establish that Appellant shot

the decedent with the specific intent to kill. The Commonwealth

presented the testimony of Michael Robertson, who was present

and interacting with Appellant and the victim in the rear of the La

Sierra Market. Robertson overheard Appellant demanding the

victim pay him monies the victim owed him. Robertson walked

off a few feet, heard a gunshot, and turned to see the victim

wounded. He then heard Appellant say, “[f]uck this shit,” and saw

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him fire a gunshot at the victim’s head. The surveillance video of

the shooting depicts the shooter wearing a gray hoodie with an X-

shaped emblem. Two Commonwealth witnesses, Kyle Powell and

Jacqueline Angelo, identified Appellant as the person in the gray

hoodie with the emblem who they saw approaching the victim

moments before they heard gunshots.

Additionally, Angelo and Powell both testified that they had seen

Appellant on numerous occasions in the neighborhood prior to the

night of the incident, which would offer support to the contention

that the two witnesses were capable of accurately identifying

Appellant as the individual in the gray hoodie.

Appellant’s claim that the jury’s verdict was against the weight of

the evidence is without merit.

Since the jury’s conclusion that Appellant was the person who shot

and killed the victim on Greenway Avenue was not against the

weight of the evidence, it follows that the jury’s verdicts conviction

Appellant of carrying a firearm without a license and carrying a

firearm in public in Philadelphia were also not against the weight

of the evidence.

Trial Court Opinion, 8/19/20, at 16-17 (cleaned up).

Our review of the record reveals no indication of bias or ill-will on the

part of the trial court in its thorough analysis. Appellant is merely rehashing

the arguments he made at trial, which the jury rejected, as was its

prerogative. See Commonwealth v. Flor, 998 A.2d 606, 626 (Pa. 2010)

(reaffirming the jury is entitled “to believe all, part, or none of the evidence,

and credibility determinations rest solely within the purview of the fact-

finder”); see also N.T. Jury Trial, 1/17/20, at 112-15 (arguing in closing

argument that Robertson “might very well be an accomplice in this case, a

co[-]conspirator who [acted as lookout for] the shooter,” because he walked

a few steps away right before the shooting occurred); id. at 125-27 (arguing

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in closing argument that Powell and Angelo are “junkies” who were high at the

time of the crime so there testimony was unreliable). Accordingly, the trial

court did not abuse its discretion by denying relief on Appellant’s weight claim,

and Appellant is entitled to no relief.

For these reasons, none of Appellant’s issues merits relief from this

Court, and we therefore affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/10/2021

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