Com. v. Bush, J.

J-S08021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEREMIAH BUSH

Appellant No. 1731 EDA 2014

Appeal from the Judgment of Sentence of January 30, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0008142-2012

BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED FEBRUARY 17, 2015

Jeremiah Bush appeals the January 30, 2014 judgment of sentence,

which was entered following his jury convictions of first-degree murder,

carrying a concealed firearm without a license, and possessing an instrument

of crime.1 The trial court sentenced Bush to life imprisonment without

parole on the murder conviction, and imposed no further sentences on the

remaining convictions. Before us, Bush challenges both the weight and the

sufficiency of the evidence to sustain his murder conviction. We affirm.

The learned trial court summarized the factual history of this case as

follows:

____________________________________________

1

18 Pa.C.S. §§ 2502(a), 6106, and 907, respectively.

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At trial, the Commonwealth presented the testimony of

Philadelphia Police Sergeant Steven Crosby, Philadelphia Police

Detectives Michael Rocks and William Kelhower, Philadelphia

Police Officers Robert Burrell, Ronald Weitman, Russell

Seiberlich, and Scott Pollack, Assistant Medical Examiner Dr.

Edwin Lieberman, as well as Lorna Wall, Clarence Milton, Kalil

Bell, and Robert Matthews. [Bush] testified on his own behalf.

Viewed in light most favorable to the Commonwealth as the

verdict winner, the evidence established the following.

[Bush], Clarence Milton, and Steven Brown were childhood

friends who engaged in drug[-]selling activities for several years

prior to 2006. As part of his drug operation, Steven Brown used

to provide drugs to Kareem Brown. On March 26, 2006, Steven

Brown was shot and killed. [Bush] and Milton had conversations

regarding Steven Brown’s death and street gossip indicated that

Kareem Brown was the shooter.

On September 20, 2006, [Bush] attempted to locate Kareem

Brown, in an attempt to exact revenge for the death of Steven

Brown. While looking for Kareem Brown, [Bush] encountered

Kareem Brown’s brother-in-law, the decedent[,] Leary Wall.

[Bush] demanded [that] Wall tell him where Kareem Brown

could be found and, when Wall did not or could not tell, [Bush]

shot him. [Bush] then left the area in a vehicle driven by an

individual named Qua.

At approximately 9:45 p.m. that same evening, Philadelphia

Police Detective Michael Rocks responded to a radio call on the

2100 block of Dover Street in Philadelphia. Upon arriving at the

scene, Rocks observed Wall lying on the highway, having been

shot four times. Wall was transported to Temple University

Hospital, where he was later pronounced dead. Two bullets were

recovered from Wall’s body, while seven nine millimeter

cartridge cases were recovered from the homicide scene. Both

recovered bullets were fired from the same firearm.

Some time following Wall’s shooting, an individual by the name

of “Bum” contacted [Bush’s] friend Milton in order to buy a

firearm. Milton contacted [Bush], who indicated that he had a

“dirty” gun to sell. [Bush] indicated that the firearm was “dirty”

because he had used it to shoot Wall and further detailed the

circumstances surrounding the shooting. [Bush] subsequently

sold Bum a black nine millimeter firearm for approximately

[$500.00].

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On July 12, 2007, [Bush] was arrested and charged for a

separate shooting that occurred on September 13, 2006, one

week prior to the shooting of Wall. On that date, police

responded to a reported shooting on the 1900 block of West

Norris Street in Philadelphia. Upon arriving at the scene, police

found Amin Payne and Timothy Fontaine, both suffering from

gunshot wounds. Payne was shot a total of seven times and

police recovered seven nine millimeter fired cartridge casings.

Charges against [Bush] were ultimately nolle prossed due to the

lack of cooperation of the witnesses.

In 2009, [Bush] was in custody in Delaware County Prison with

Robert Matthews as a cellmate. At some point, Payne, the

victim of the September 13, 2006 shooting, was escorted into

the cell block. [Bush] informed Matthews that he had shot

Payne seven times “over a beef” using a nine millimeter

handgun. Upon noticing [Bush], Payne alerted the prison

officials and was escorted from the block. At a later time, while

still in custody, [Bush] told Matthews that he had killed someone

with the same firearm that he had used to shoot Payne. [Bush]

thereafter informed Matthews of the circumstances of his

shooting Wall.

On July 30, 2010, Kalil Bell, a friend of [Bush], contacted the

Philadelphia Police through a letter stating that he was willing to

talk with police. Detective William Kelhower conducted an

interview with Bell on February 7, 2011, concerning the death of

Wall. In this interview, Bell stated that [Bush] had admitted to

Bell that [Bush] had shot Wall while attempting to locate Kareem

Brown.

On September 20, 2010, Mathews [sic] gave a statement to

police concerning what [Bush] had told him while in custody. On

November 8, 2011, Clarence Milton, [Bush’s] friend, provided a

statement to the police indicating that [Bush] confessed to killing

Wall during their discussion about the sale of the “dirty” gun.

Subsequent testing confirmed that the seven bullet casings

recovered from the scene of the homicide matched the seven

casings recovered a week prior to the homicide from the

shooting of Payne. An arrest warrant was issued for [Bush] on

February 6, 2012[,] and [Bush] was taken into custody two days

later, on February 8, 2012.

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Trial Court Opinion (“T.C.O.”), 9/12/14, at 1-4 (footnotes and citations to

notes of testimony omitted).

Following a jury trial, Bush was found guilty of the above-listed crimes

and sentenced to life imprisonment without parole on January 30, 2014. On

February 10, 2014, Bush filed a post-sentence motion, which the trial court

denied on May 14, 2014.

On June 11, 2014, Bush filed a notice of appeal to the this Court, and

the trial court immediately instructed Bush to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bush timely

filed a concise statement on July 2, 2014. On September 12, 2014, the trial

court filed an opinion pursuant to Pa.R.A.P. 1925(a) in response to Bush’s

concise statement.

Bush raises the following issues on appeal:

1) Is [Bush] entitled to an arrest of judgment on the charge of

[m]urder in the [f]irst [d]egree and all related charges where

there is insufficient evidence to sustain the verdict?

2) Is [Bush] entitled to a new trial on all charges where the

verdict on [m]urder in the [f]irst [d]egree and all related

charges is not supported by the greater weight of the

evidence?

Brief for Bush at 3.

In his first issue, Bush generally challenges the sufficiency of the

evidence developed by the Commonwealth to convict him of all charges.

Specifically, he contends that the Commonwealth adduced insufficient

evidence to prove he was the perpetrator of the crimes with which he was

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charged. Id. at 7. However, Bush only addresses the first-degree murder

conviction in his brief. Id. at 8-10. Accordingly, we review the sufficiency of

the evidence only as to that conviction.

When examining a challenge to the sufficiency of evidence:

The standard we apply . . . 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 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) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).

In order for a jury to convict Bush of first-degree murder, the

Commonwealth must establish that Bush committed an intentional killing.

18 Pa.C.S. § 2502(a). Intentional killing is defined as “[k]illing by means of

poison, or by lying in wait, or by any other kind of willful, deliberate and

premeditated killing.” 18 Pa.C.S. § 2502(d). “The use of a deadly weapon

on a vital part of the body is sufficient to establish the specific intent to kill.”

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Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007). “The chest and

abdomen house the human body’s chief circulatory and digestive organs, as

well as a network of vital arteries and veins which supply them and, thus,

are vital areas of the body.” Commonwealth v. Briggs, 12 A.3d 291, 307

(Pa. 2011).

Presently, Bush argues that the Commonwealth failed to prove beyond

a reasonable doubt that he was the perpetrator of the murder. Brief for

Bush at 7. Further, Bush argues that multiple witnesses at trial provided

unreliable testimony, which led to his conviction. Id. at 9. To that end,

Bush relies upon the general principle that was espoused in

Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), that where the

“evidence presented at trial when carefully reviewed in its entirety, is so

unreliable and contradictory that it is incapable of supporting a verdict of

guilty, and thus, is insufficient as a matter of law.” Id. at 1172. Bush

argues generally that the testimony elicited by multiple witnesses at trial

was so unreliable that the evidence was insufficient to support a guilty

verdict. Brief for Bush at 9-10. Specifically, Bush argues, “the two

witnesses, Clarence Milton and Robert Matthews, came forward only in order

to curry favor with law enforcement.” Id. at 9. Although this type of claim

typically implicates a challenge to the weight of the evidence, see

Commonwealth v. DeJesus, 860 A.2d 102, 107-108, (Pa. 2004), because

Bush raises his claim under Karkaria, a sufficiency case, we will review the

claim as a sufficiency challenge.

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In light of Bush’s limited sufficiency challenge, we need only review

the identity element of his convictions. As noted earlier, circumstantial

evidence is sufficient to establish the defendant’s identity as the perpetrator

of a murder. Commonwealth v. Santiago, 980 A.2d 659, 662 (Pa. Super.

2009). Indeed, circumstantial evidence itself is sufficient to prove any

element or all of the elements of criminal homicide. Id.

Milton and Matthews both testified that Bush confessed to them that

he shot and killed Wall with a nine millimeter gun. Notes of Testimony

(“N.T.”), 1/28/2014, Vol. 2, at 81; N.T., 1/29/2014, Vol. 3, at 65-66.

However, even absent Milton and Matthews’ testimony, there was additional

testimony and evidence to prove beyond a reasonable doubt that Bush

murdered Wall. Detective William Kelhower testified that he interviewed

Kalil Bell on February 7, 2011, during which Bell said that Bush also told him

that he shot and killed Wall. N.T., 1/28/2014, Vol. 2, at 257-268. Although

there were inconsistencies in the evidentiary record, the testimony was not

“so unreliable and contradictory that it is incapable of supporting a verdict of

guilty, and thus, is insufficient as a matter of law.” Karkaria, 625 A.2d at

1172. Rather, there was ample evidence to enable the jury to find beyond a

reasonable doubt that Bush was the person who killed Wall. Consequently,

Bush’s first issue does not merit relief.

In his second issue, Bush also claims that the jury’s verdict was

against the weight of the evidence.

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An allegation that the verdict is against the weight of the

evidence is addressed to the discretion of the trial court.

Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super.

2005), (citing Commonwealth v. Sullivan, 820 A.2d 795, 805–

806 (Pa. Super. 2003), (quoting Commonwealth v. Widmer,

744 A.2d 745, 751–752 (Pa. 2000))). The Pennsylvania

Supreme Court has explained that “[a]ppellate 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.” Widmer, 744 A.2d at 753 (citation omitted).

To grant a new trial on the basis that the verdict is against the

weight of the evidence, this Court has explained that “the

evidence must be ‘so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.’” Sullivan, 820 A.2d

at 806 (quoting Commonwealth v. La, 640 A.2d 1336, 1351

(Pa. Super. 1994)).

[This Court shall not undertake to reassess credibility of

witnesses, as] it is well settled that we cannot substitute our

judgment for that of the trier of fact. Commonwealth v.

Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the

finder of fact was free to believe the Commonwealth’s witnesses

and to disbelieve the witness for the Appellant. See

Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the

finder of fact is free to believe all, none, or part of the testimony

presented at trial).

Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010)

(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009))

(citations modified).

To support his weight of the evidence claim, Bush essentially reiterates

his sufficiency arguments, and contends that the jury should have accepted

his account of the events in question and rejected the testimony of the

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Commonwealth’s witnesses.2 Again, Bush assails the credibility of both

Milton and Matthews’ testimony, particularly the testimony identifying him as

the perpetrator of the murder. At trial, Bush’s attorney cross-examined both

Milton and Matthews, giving the jury ample opportunities to assess their

credibility and bias. See N.T., 1/28/2014, Vol. 2, at 96-138; N.T.,

1/29/2014, Vol. 3, at 77-113. Having heard the testimony and observed the

demeanor of witnesses, including during cross-examination, the jury was

free to believe, or not to believe, the testimony of those two critical

witnesses. Having reviewed the record, we conclude that the record

supports the jury’s verdict, and we discern no basis upon which to conclude

that the trial court abused its discretion by concluding that the jury’s verdict

did not shock the court’s conscience.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2015

____________________________________________

2

Pursuant to Pa.R.Crim.P. 607(A)(3), Bush properly raised his weight

challenge in his post-sentence motion.

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