Commonwealth v. Ovalles

J-A18045-16

2016 PA Super 166

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA CARLOS OVALLES,

Appellant No. 1585 MDA 2015

Appeal from the Judgment of Sentence August 13, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0002711-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED JULY 25, 2016

This is an appeal from the judgment of sentence of life imprisonment

entered in the Court of Common Pleas of Luzerne County by the Honorable

Thomas J. Burke on August 13, 2015, following a bench trial and Appellant’s

conviction of first-degree murder.1 Upon our review of the record, we

affirm.

The trial court aptly set forth the relevant facts and procedural history

herein as follows:

On July 7, 2013 at approximately 1:20 a.m., Wilkes-Barre

City Police officers were dispatched to the area of 174 South

Grant Street, Wilkes-Barre, for a fight in progress with gunshots

fired. Officers on the scene discovered the victim, Vaughn Kemp

(“Kemp"), lying motionless in the backyard of 174 South Grant

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1

18 Pa.C.S.A. § 2501.

*Former Justice specially assigned to the Superior Court.

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Street. Kemp had two gunshot wounds in his lower back area.

Kemp was transported to Geisinger Wyoming Valley Hospital for

treatment. On July 7, 2013, at approximately 2:05 a.m., Kemp

was pronounced dead. After a post mortem examination, the

cause of death was determined to be multiple gunshot wounds,

and the manner of death was ruled a homicide.

On July 9, 2013, a number of individuals who were at the

scene of the homicide were interviewed by police investigators.

One such individual was Erik Rodriguez ("Rodriguez "), a juvenile

at that time. Rodriguez identified the shooter as being

[Appellant], the defendant in the above-captioned case.

[Appellant] was arrested on July 9, 2013 and charged with

one count of Homicide, 18 Pa.C.S.A. § 2501(a). A preliminary

hearing was held on August 21, 2013, after which the charge of

Homicide was forwarded to the Court of Common Pleas of

Luzerne County. [Appellant] was formally arraigned on October

11, 2013. After multiple continuances and following an appeal of

a pretrial determination by the Court, a bench trial commenced

on Monday, August 10, 2015. Testimony and closing arguments

concluded on Wednesday, August 12, 2015. On Thursday,

August 13, 2015, the Court rendered a verdict of guilty of

Murder of the first degree, and immediately sentenced

[Appellant] to life in prison without parole. [Appellant] filed a

Notice of Appeal to the Superior Court of Pennsylvania on August

28, 2015. As per the Court's direction, [Appellant] filed a Concise

Statement of Errors Complained of on Appeal ("Concise

Statement") on October 9, 2015. This Opinion is submitted

pursuant to the Court's obligation set for in Pa.R.A.P. 1925(a).

***

At trial, Denzel Kemp-McCarthy ("Kemp-McCarthy"), the

brother of the victim Kemp, testified on behalf of the

Commonwealth. He stated that he attended a party at 174 South

Grant Street into the morning hours of July 7, 2013. (N.T. at

26). He noticed [Appellant], whom he knew as "Jay Crim", in the

backyard where the party was being held. (N.T[.] at 27 -28).

During the party, Kemp-McCarthy had a conversation with

Ramon Duval ("Duval"). (N.T. at 29). After the conversation,

Kemp-McCart[h]y drove home and picked up his brother, Kemp,

and his cousin, George Johnson, and brought them to the party.

(N.T. at 31). Upon returning to the party, Kemp, Duval and a

person named Moe (Maurice Richardson) had a brief exchange of

words in the middle of the street, resulting in Kemp attempting

to throw a punch at Moe, which Kemp-McCarthy prevented.

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(N.T. at 35). At that point, a crowd began to gather in the street

in front of the residence at 174 South Grant Street and gunshots

were fired. (N.T. at 36). After retreating back to the car, Kemp

realized his cousin George was still at the party; Kemp returned

to get him. (N.T, at 36-37). About ten minutes later, Kemp-

McCarthy heard a few more gunshots, and saw people running

away from the house. (N.T. at 37). Kemp-McCarthy returned to

the backyard where the party was being held, and found his

brother (Kemp) lying face down. He immediately realized

something was wrong, and called 911. (N.T. at 38).

Ramon Duval[2] testified on behalf of the Commonwealth.

He stated that he arrived to the party at 174 South Grant Street

between 11:00 and 12:00 on the night of July 6, 2013. (N.T. at

79). He noticed [Appellant], whom he knew as "Jay Crim", at the

party, sitting in the backyard on a sofa. (N.T. at 80 -81). Duval

also saw Moe on the couch, and approached him. They then

went to the front of the house to speak. (N.T. at 82). Kemp

approached them while they were at the front of the house, and

encouraged Duval to fight with Moe. (N.T. at 84 -85). Numerous

people started to fill the street, including [Appellant]. (N.T. at

86-87). Duval was very close to [Appellant] when he saw him

fire three or four gunshots toward the sky, causing Duval to run.

(N.T. at 87). He also testified that he did not see anyone else

with a gun when he was in the street. (N.T. at 87-88).

Rodriguez was called to testify on behalf of the

Commonwealth.[3] Rodriguez, who was sixteen in July of 2013,

remembered arriving early to the party at 174 South Grant

Street to help set up. (N.T. at 105). He testified that [he] saw

[Appellant] in the backyard talking with a small group of people.

(N.T. at 108). Rodriguez overheard [Appellant] state that he

wanted a gun prior to [Appellant] going to the front of the

house. (N.T. at 108). Rodriguez testified that he was

approximately twenty feet away from [Appellant] in the front of

the house when [Appellant] fired three gunshots in the air. (N.T.

at 109). Rodriguez testified that he then went to the porch of the

residence so that he could see better. (N.T. at 109). At that

point, he witnessed Kemp throw a bottle at [Appellant] that

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2

Duval, whose native language is Spanish, testified with the assistance of a

court-certified, Spanish-English interpreter. N.T., 8/10/15, at 77-103.

3

Rodriguez testified through the use of the same interpreter who assisted

Duval. N.T., 8/10/15, at 104-139.

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missed, hit a car and broke. (N.T. at 111-112). Kemp then ran

and tried to duck and hide behind other people. (N.T. at 112 -

113). [Appellant] then took aim at Kemp, and fired two gunshots

in the direction of Kemp. (N.T. at 113, 136). Kemp ran along the

side of the residence even after he was shot, and [Appellant]

fled in a car. (N.T. at 113). Rodriguez was subsequently

interviewed by police two days later, on July 9, 2013. (N.T. at

116). Rodriguez testified at trial that he had been untruthful with

the police, telling them that he was inside the residence during

the shooting. (N.T. at 116). Cross[-]examination of Rodriguez

revealed a number of other inconsistencies in his testimony,

including an inconsistent description of the clothing worn by

[Appellant] on the night of the shooting. (N.T. at 125, 273).

Upon being confronted with the inconsistencies in his testimony

regarding the clothing worn by the shooter, Rodriguez admitted

same, but immediately and confidently stated that it was

[Appellant] whom he saw with a gun. (N.T. at 127). He also

confirmed having heard "three (shots) up" and "two when he

([Appellant]) shot at him (Kemp) ". (N.T. at 128).

Dr. Gary Ross testified on behalf of the Commonwealth. He

was qualified as an expert in the field of forensic pathology,

which includes an expertise in bullet trajectory within the human

body. (NT. at 161-165). Dr. Ross testified that he conducted an

autopsy on the victim which revealed two gunshot wounds to his

right-lower back. (NJ. at 167). The bullet that was described as

gunshot wound number one was recovered beneath the skin

surface of the victim's right chest. (N.T. at 170).1 Dr. Ross

stated that this particular bullet was shot from a distance, and

"went from back to front upward through the abdomen and chest

of the decedent." (N.T. at 172). He further testified that this

particular gunshot wound was lethal, in that it traveled "through

his kidney, caused massive bleeding in the abdomen and the

peritoneum cavity and retroperitoneum and also went through

his lung which caused significant bleeding within the right chest

cavity." (N.T. at 173). Dr. Ross stated that gunshot number two

was also a distant gunshot wound, and was the lower of the two

wounds on the right-upper buttock or lower back. (N.T. at 174).

This bullet was removed from the subcutaneous tissue of the

victim's left shoulder. (N.T. at 176). This particular bullet went

from back to front, upward slightly towards the left. (N.T. at

178). Dr. Ross described it as a lethal gunshot wound which

"went through the soft tissue of the abdomen and chest,

penetrated the pulmonary artery, which is the main vessel

leaving the heart, and it also penetrated the right atrium of the

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heart, which is one of the four major chambers of the heart

itself, causing a massive amount of bleeding within the chest and

resulted in this decedent's death." (N.T. at 177). Dr. Ross

testified that based upon his examination, it was his opinion that

the assailant was behind the decedent when he fired the shots.

(N.T. at 178). He also testified that, based upon the steepness of

the trajectory of the bullet, the wounds were consistent with

someone who was ducking. (N.T. at 186). He determined that

Kemp's cause of the death of was multiple gunshot wounds and

that the manner of death was homicide. (N.T. at 178-179).

Corporal Joseph Gober of the Pennsylvania State Police

testified on behalf of the Commonwealth. Corporal Gober is a

member of the Bureau of Forensic Services, and is a firearm and

toolmark examiner with that unit. (N.T. at 188). He was

admitted as an expert in the field of firearm and toolmark

examination. (N.T. at 191). He testified that he conducted an

examination comparison of the two bullets that were recovered

from the victim's body, and concluded that the bullets were

discharged from the same unknown firearm. (N.T. at 193 -194).

Captain Mark Rockovich testified on behalf of the

Commonwealth. Captain Rockovich is employed as the Records

Captain of the Luzerne County Correctional Facility. (N.T. at

223). Part of his job duty is to keep the recordings of phone calls

between prisoners and visitors. (N.T. at 224). On July 13, 2013,

a recording was made between [Appellant] and a visitor. (N.T. at

225). That recording revealed [Appellant] stating to the effect

that he could not be charged with murder one, because "murder

one is when I planned it out in my head." [Appellant] could also

be heard saying, "... I caused the sixth murder in a year ". (see

Commonwealth Exhibit #19).

Detective Charles Jensen was called as on cross by the

Defendant. Detective Jensen interviewed both Rodriguez and

Duval on July 9, 2013 and prepared reports from the interviews.

Detective Jensen admitted that the report of the Rodriguez

interview made no mention of Rodriguez's use of alcohol and

marijuana on the night of the shooting, details that Rodriguez

testified to at trial. (N.T. at 267). Jensen's report also failed to

include other details that Rodriguez testified to at trial. For

instance, there was testimony that at or about the time the

initial shots were fired into the air, [Appellant] yelled "West

Side," whereupon one or more other individuals yelled "East Side

"; that information was not contained in the Jensen report. (N.T.

at 268). Also, as set forth above, Rodriguez told Jensen that he

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was inside the residence when the shooting took place, which

was inconsistent with his trial testimony. (N.T at 269). Detective

Jensen also admitted that the interviews of Rodriguez and Duval

contained inconsistent accounts as to the clothes being worn by

the shooter. (N.T. at 273-276). Detective Jensen also testified to

certain suggested deficiencies in his investigation, like a failure

to recover the weapon used, failure to find bullets or bullet

casings, a failure to search phone records of [Appellant], and a

failure to interview Moe until three days prior to trial. (N.T. at

278 -287).

_____

1

The testimony of Dr. Ross was clear that he could not

determine the order of the wounds, but that “forensic

pathologists label the wounds one through whatever beginning

from the top of the head to the bottom of the feet.” (N.T. at

168).

Trial Court Opinion, filed 11/19/15, at 1-7.

In his brief, Appellant presents the following Statement of Questions

Involved:

A. Whether the [t]rial [c]ourt erred in denying [Appellant’s]

Motion for a Brady4 violation in that the Commonwealth withheld

evidence that the alleged eyewitness to the crime had admitted

to them prior to his testimony that he committed perjury at the

[p]reliminary [h]earing?

B. The Commonwealth committed prosecutorial misconduct in

intentionally withholding evidence from the [Appellant] that the

alleged eyewitness to the crime had admitted to them prior to

his testimony that he committed perjury at the Preliminary

Hearing and had intentionally not taken notes or made any

written reports of the witness’ admissions and change of

statement?

____________________________________________

4

Appellant is referencing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215 (1963) (hereinafter “Brady”).

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C. Whether the evidence was insufficient to convict

[Appellant] of First Degree Murder?

Appellant’s Brief at 4.

Appellant initially avers the Commonwealth violated Brady by failing

to disclose that prior to his testifying at trial, Rodriguez essentially admitted

to police he had committed perjury at the preliminary hearing. Specifically

Appellant contends Rodriguez “indicated prior to trial that he would

materially testify completely different from his prior testimony at the

[p]reliminary [h]earing and his statement to the police two days after the

shooting of Vaughn Kemp.” Appellant’s Brief at 16. Appellant further

maintains this evidence was material to his case since Rodriguez’s statement

he “witnessed [Appellant] taking two shots at the victim in the pathway and

that his description of the shooter’s clothing was completely different were

material facts that [Appellant] needed in order to investigate Rodriguez’ [sic]

completely different story.” Id. Appellant avers the Commonwealth’s failure

to disclose this evidence and Rodriguez’s admission he had been smoking

marijuana and had drunk five or six beers, which were exculpatory

statements, entitles him to a new trial. Id. at 16, 29. We disagree.

The law governing Brady violations is well-settled:

Under Brady and subsequent decisional law, a prosecutor

has an obligation to disclose all exculpatory information material

to the guilt or punishment of an accused, including evidence of

an impeachment nature. See, e.g., Commonwealth v.

Hutchinson, 611 Pa. 280, 25 A.3d 277, 310 (2011). To

establish a Brady violation, an appellant must prove three

elements: (1) the evidence at issue was favorable to the

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accused, either because it is exculpatory or because it

impeaches; (2) the evidence was suppressed by the prosecution,

either willfully or inadvertently; and (3) prejudice ensued.

Hutchinson, supra (citation omitted). The burden rests with

the appellant to “prove, by reference to the record, that

evidence was withheld or suppressed by the prosecution.” Id.

(citation omitted). The evidence at issue must have been

“material evidence that deprived the defendant of a fair trial.”

Id. (citation and emphasis omitted). “Favorable evidence is

material, and constitutional error results from its suppression by

the government, if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the

outcome.” Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d

431, 450 (2011) (quoting Kyles v. Whitley, 514 U.S. 419, 433,

115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

Brady does not require the disclosure of information “that

is not exculpatory but might merely form the groundwork for

possible arguments or defenses,” nor does Brady require the

prosecution to disclose “every fruitless lead” considered during a

criminal investigation. Id. (citation omitted). The duty to

disclose is limited to information in the possession of the

government bringing the prosecution, and the duty does extend

to exculpatory evidence in the files of police agencies of the

government bringing the prosecution. Commonwealth v.

Puksar, 597 Pa. 240, 951 A.2d 267, 283 (2008);

Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 370

(2011) (applying Kyles, supra at 438, 115 S.Ct. 1555). Brady

is not violated when the appellant knew or, with reasonable

diligence, could have uncovered the evidence in question, or

when the evidence was available to the defense from other

sources. Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873,

902–03 (2011); Paddy, supra at 451. Brady sets forth a

limited duty, not a general rule of discovery for criminal cases.

Paddy, supra at 451 (citing Weatherford v. Bursey, 429 U.S.

545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) for the proposition

that “there is no generalized constitutional right to discovery in a

criminal case, and Brady did not create one”).

Commonwealth v. Roney, 622 Pa. 1, 22-24, 79 A.3d 595, 607-08 (2013)

(emphasis in original).

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In addition, “for a defendant to be entitled to a new trial based on the

prosecution's failure to disclose information relating to a witness's credibility,

the defendant must ‘demonstrate that the reliability of the witness may well

be determinative of his guilt or innocence.’” Commonwealth v. Simpson,

620 Pa. 60, 82, 66 A.3d 253, 266 (2013) (citations omitted).

Herein, Appellant made an oral motion for a mid-trial Brady hearing to

determine “whether or not there [had] been any interviews, notes,

recordings, transcriptions of interviews with any witnesses pertaining to

exculpatory evidence, which [Appellant] should have been made aware of

prior to trial referencing the testimony of Erik Rodriguez but, obviously, not

limited to him.” N.T., 8/11/15, at 140. At that time, the prosecutor

represented the Commonwealth had turned over all documents in its

possession, including a report authored by Captain of Detectives Joseph

Coffay which it discovered the prior evening had not been provided to the

defense after a conversation with Detective Blitzer, who had been reviewing

the case file. Id. at 140-41. In response, Appellant maintained that he

should have received any notes taken when investigators in the District

Attorney’s Office spoke to Rodriguez in preparation for trial. Id. at 142-43.

The prosecutor represented that she questioned Mr. Rodriguez in the

presence of Detectives Blitzer and Jensen the day before he testified, and

the only information that was elicited from Rodriguez was his responses to

the questions the prosecutor posed. The prosecutor further stated she

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heard Rodriguez say for the first time on cross-examination at trial that

Appellant had been wearing a red and gold jacket at the time of the

shooting. The Commonwealth had no information in this regard other than

the report prepared by Detective Jensen on July 9th and Rodriguez’s

testimony at the preliminary hearing to the contrary, and Appellant

possessed that evidence. Id. at 143-44. Further argument centered around

the possible existence of additional written notes ensued, after which the

trial court permitted Appellant to proceed with a Brady hearing. Id. at 145-

151. Defense counsel clarified that the reason for the hearing “is just to

ask the affiants on the case and the Detectives if they prepared a report

subsequent to the July 9th report and subsequent to the August preliminary

hearing that differed in any way from the materials we received.” Id. at

150. (emphasis added).

Detectives testified that no written notes or audio recordings were

prepared pertaining to Rodriguez’s anticipated trial testimony following July

9, 2013. Id. at 152-158. Detective Jenson explained that he typed an

official report based upon his handwritten notes following the initial interview

with Rodriguez on July 9, 2013, but did not take notes or prepare a

supplemental report after speaking with him on Friday August 7, 2015. Id.

at 152-154. On cross-examination, Detective Jenson acknowledged he and

the prosecutor met with Rodriguez during a lunch break on August 10, 2015,

the first day of trial, and no written notes or audio recording were prepared

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at that time. Id. at 154-55. Detective Noone informed the trial court his

presence during Rodriguez’s trial preparation was only intermittent, and he

did not prepare any notes at that time, nor was he aware that anyone else

did. In fact, he was not in possession of any supplemental report regarding

Rodriguez’s testimony that may have been prepared after July 9, 2013. Id.

at 157. Similarly, Detective Bitzer explained that while he had been present

for Rodriguez’s interview on August 7, 2015, he neither took notes nor

prepared a report memorializing the same and was not in possession of any

reports subsequent to that prepared on July 9, 2013. Id. at 158-59.

Following the Brady hearing, the trial court found no violation had occurred

and in doing so stated the following on the record:

THE COURT: On the basis of the testimony presented today, it

appears to be confirmatory of the Commonwealth’s assertion

that there were no additional reports compiled, nor any

additional notes taken beyond those previously furnished to the

Defense Counsel; and, moreover, the [c]ourt notes that it

specifically continued to hold the witness in question, Mr. Erik

Rodriguez, subject to the arrangements under which he was

subpoenaed and presented for trial, such that [Appellant] will

have the opportunity to pursue that further as it sees fit.

Moreover, clearly, [Appellant] had an opportunity to

cross[-]examine the witness during the course of the

Commonwealth having called Mr. Rodriguez.

N.T., 8/11/15, at 159-160.

In light of the foregoing, we agree with the trial court’s finding that

Appellant failed to establish the Commonwealth withheld any exculpatory

information with respect to Rodriguez. The Commonwealth represented and

the Detectives testified that other than the report prepared on July 9, 2013,

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of which Appellant had possession, no subsequent written or oral recording

memorialized Rodriguez’s responses to the prosecution’s queries posed in

preparation for trial. The prosecutor herself learned for the first time on

cross-examination of Rodriguez’s inconsistent description of the clothing

Appellant wore on the night of the shooting; indeed, the Commonwealth

could not have been sure of Rodriguez’s trial testimony until he took the

witness stand. Importantly, defense counsel admitted he could have

interviewed Rodriguez in preparation for trial. N.T., 8/11/15, at 150.

Even assuming, arguendo, the Commonwealth did not disclose

information that Rodriguez’s testimony at trial would likely vary from his

representation of what he initially said he had observed on the night of the

shooting, Appellant is not entitled to relief. Appellant has not established he

was prejudiced by any nondisclosure in this regard and, thus, Appellant has

not met his burden for relief under Brady. Arguably, such testimony was

not exculpatory for the inconsistencies in Rodriguez’s account of the

shooting, which the trial court acknowledged and discussed in its Opinion

pursuant to Pa.R.A.P. 1925(a), called into question the veracity of the

Commonwealth’s only eyewitness to the crime, and Appellant took

advantage of the opportunity to illuminate this fact through his cross-

examination of Rodriguez. Moreover, despite Appellant’s bald assertions to

the contrary, Rodriguez’s verbal responses to the Commonwealth’s queries

in preparation for trial could not have led to the uncovering of any additional

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evidence or potential witnesses other than those of which Appellant had

been aware since July of 2013 and whose testimony he would have been

free to present at trial. Significantly, despite inconsistencies in his

description of Appellant’s clothing and his vantage point at the time of the

shooting, Rodriguez never wavered in his identification of Appellant as the

only individual brandishing and shooting a firearm before Kemp was fatally

shot, and the defense presented no contradictory testimony in this regard.

Accordingly, we conclude the trial court did not err in finding the

Commonwealth did not violate Brady, for Appellant has failed to

demonstrate that the alleged Brady violation so undermined the truth

determining process that no reliable adjudication of guilt or innocence could

have occurred. See Commonwealth v. Cam Ly, 602 Pa. 268, 298, 980

A.2d 61, 78 (2009).

Appellant admits his second claim of prosecutorial misconduct

coalesces with his Brady claim. Nevertheless, he avers the Commonwealth

committed prosecutorial misconduct for its intentional withholding of

evidence that Rodriguez admitted prior to testifying that he had committed

perjury at the preliminary hearing and for failing to take notes or prepare a

written report of Rodriguez’s admissions and inconsistent statements.

Appellant’s Brief at 20-21. Appellant maintains that while Brady relates to

the failure of the Commonwealth to provide the defense with exculpatory

evidence, the Commonwealth also is required to disclose any oral inculpatory

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statements under Pa.R.Crim.P. 573(B)(1)(b).5 He further suggests, without

citation to any authority in support of his claim, that district attorneys and

members of law enforcement are under an affirmative duty to memorialize

in statements a witness makes in preparation for trial in either written

notations or reports. In support of this position, Appellant speculates in his

two-paragraph argument that on August 7, 2015, that:

Rodriguez now told the Commonwealth that he had lied

when he said he ran upstairs after he heard the first shots made

by [Appellant] up in the air and did not see [Appellant] shooting

at Kemp if his trial testimony is to be believed. His trial

testimony that he only ran to the front porch and saw

[Appellant] point his gun at Kemp and shoot is highly inculpatory

in that it is the only evidence of anyone seeing [Appellant] shoot

at Kemp. Lastly, the Commonwealth was clearly in possession

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5

This statute provides:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant,

and subject to any protective order which the Commonwealth

might obtain under this rule, the Commonwealth shall disclose to

the defendant's attorney all of the following requested items or

information, provided they are material to the instant case. The

Commonwealth shall, when applicable, permit the defendant's

attorney to inspect and copy or photograph such items.

***

(b) any written confession or inculpatory statement, or the

substance of any oral confession or inculpatory statement, and

the identity of the person to whom the confession or inculpatory

statement was made that is in the possession or control of the

attorney for the Commonwealth;

Pa. R. Crim. P. 573(b)(1)(b).

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of the oral statement, though, apparently, no one deemed it

relevant to take notes regarding the new statement that

Rodriguez had made.

Appellant’s Brief at 21-22.

As was discussed supra, contrary to Appellant’s claims, the prosecutor

indicated that prior to cross-examination, she was unaware Rodriguez was to

offer a different description of the clothing Appellant wore at the time of the

murder than that which he had provided at the preliminary hearing, and no

documents were prepared thereafter concerning Rodriguez’s trial

preparation. The prosecutor’s representations were corroborated by the

testimony of three detectives during a mid-trial Brady hearing. In addition,

the trial court, as the fact-finder, was well aware of the inconsistences in

Rodriguez’s preliminary hearing and trial testimony, and Appellant

thoroughly questioned him on cross-examination. As such, this claim merits

no relief.

Finally, Appellant asserts the evidence was insufficient to convict him

of first-degree murder. In this regard, Appellant reasons that only

Rodriguez’s previously undisclosed testimony at trial was presented that he

shot the victim, and that “the only uncontradicted evidence was that

[Appellant] shot a gun in the air three times at the location where Kemp and

Richardson were arguing.” Appellant’s Brief at 25-26.

The standard we apply when reviewing the sufficiency of

the evidence 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

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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. Furthermore, when reviewing a

sufficiency claim, our Court is required to give the prosecution

the benefit of all reasonable inferences to be drawn from the

evidence.

However, the inferences must flow from facts and

circumstances proven in the record, and must be of such volume

and quality as to overcome the presumption of innocence and

satisfy the jury of an accused's guilt beyond a reasonable doubt.

The trier of fact cannot base a conviction on conjecture and

speculation and a verdict which is premised on suspicion will fail

even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)

(quotation and citations omitted).

Section 2502 of the Crimes Code, 18 Pa.C.S.A. § 2502, defines murder

of the first degree as follows: (a) Murder of the first degree.--A criminal

homicide constitutes murder of the first degree when it is committed by an

intentional killing. 18 Pa.C.S.A. § 2502 (a). As such, to obtain a conviction

of first-degree murder, the Commonwealth must have demonstrated that:

a human being was unlawfully killed, the defendant perpetrated

the killing, and the defendant acted with malice and a specific

intent to kill.” Commonwealth v. Montalvo, M., 604 Pa. 386,

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986 A.2d 84, 92 (2009) (quoting Commonwealth v. Kennedy,

598 Pa. 621, 959 A.2d 916, 921 (2008)); accord 18 Pa.C.S. §

2502(a) & (d) (defining first degree murder as an “intentional

killing,” which is further defined as a “[k]illing by means of

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

deliberate and premeditated killing.”). The Commonwealth may

prove the specific intent to kill necessary for first[-]degree

murder wholly through circumstantial evidence.

Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1009–10

(2007).

Commonwealth v. Murray, 623 Pa. 506, 528-29, 83 A.3d 137, 151

(2013).

As indicated supra, Appellant’s argument is specific in nature. Rather

than challenge the sufficiency of the evidence to support any of the

applicable elements of the offense, Appellant contends the evidence was

insufficient to prove that he was the shooter. As such, we need not conduct

a thorough review of the evidence to determine whether it can support a

finding that all of the elements of the offense have been met. Rather, we

will focus on the specific sufficiency issue raised by Appellant: whether the

evidence was sufficient to establish that Appellant was the perpetrator.

This Court has recognized that:

[E]vidence of identification need not be positive and certain to

sustain a conviction. Commonwealth v. S. Jones, 954 A.2d

1194, 1197 (Pa.Super. 2008)[.] 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). Out-of-court identifications are relevant to our review of

sufficiency of the evidence claims, particularly when they are

given without hesitation shortly after the crime while memories

were fresh. Id. at 234. Given additional evidentiary

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circumstances, “any indefiniteness and uncertainty in the

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

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super. 2011) (en banc)

(quotation marks omitted).

In finding no merit to Appellant’s sufficiency of the evidence claim in

its Pa.R.A.P. 1925(a) Opinion, the trial court reasoned as follows:

Viewing the totality of the evidence presented in light of

the sufficiency standard set forth above, the [c]ourt holds that

the Commonwealth put forth sufficient evidence to prove beyond

a reasonable doubt that Kemp was unlawfully killed by

[Appellant] and that the killing was intentional based upon his

use of a gun on a vital part of the victim’s body. The Court

specifically points to the testimony of witnesses Kemp-McCarthy

and Duval, who place [Appellant] at the scene, Duval who

observed [Appellant] fire gunshots toward the sky, Rodriguez

who both witnessed [Appellant] shoot toward the sky and

thereafter shoot toward the victim, Dr. Ross who testified that

each shot was lethal unto itself, Corporal Gober who testified

that both bullets came from the same gun, and [Appellant’s]

self[-]incriminating statements uttered during a phone

conversation as referenced in Commonwealth Exhibit #19.

Trial Court Opinion, filed 11/19/15, at 7-8. Upon our review of the record,

we agree with the trial court’s reasoning and find no error in this regard;

therefore, this claim merits no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2016

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