Com. v. Rivers, D.

J-S60027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAMION RIVERS

Appellant No. 1415 EDA 2015

Appeal from the Judgment of Sentence December 5, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001598-2013

BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED OCTOBER 19, 2016

Damion Rivers appeals from the judgment of sentence entered

December 5, 2014, in the Philadelphia County Court of Common Pleas. The

trial court imposed a sentence of life imprisonment following Rivers’s jury

conviction of first-degree murder, criminal conspiracy, and firearms not to be

carried without a license1 for the shooting death of Joel “Knight” Henderson.

On appeal, Rivers challenges two evidentiary rulings, as well as the weight

and sufficiency of the evidence supporting his convictions. For the reasons

below, we affirm.

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

18 Pa.C.S. §§ 2502, 903, and 6106, respectively.

J-S60027-16

The facts underlying Rivers’s convictions are summarized by the trial

court as follows:

[Rivers] shared living accommodations with his co-worker,

Michael Emanuel (“Emanuel”), sometimes at the home of

[Rivers’s] parents and sometimes at the home of [Rivers’s]

girlfriend Amber Cronon (“Cronon”). [Rivers] did not have a

valid driver’s license and would often ask Emanuel, who did have

a valid driver’s license, to drive him around on various errands in

Cronon’s white Nissan sedan. On the evening of [August 30,

2011, Rivers] met Em[]anuel at [Rivers’s] parents house and

told Emanuel to get dressed because they were going to go for a

ride. Em[]anuel followed [Rivers] out of the house where a male

known as “Ale” was waiting for them. That day, [Rivers] and Ale

exchanged 19 calls prior to meeting Emanuel. At 8:55 P.M.,

[Rivers] borrowed Ale’s cell phone, dialed [Joel] Henderson’s

number and told Emanuel to arrange a purchase of five (5)

“dipper sticks”4. Emanuel complied. Emanuel had arranged to

purchase one or two (1-2) dippers from Henderson, also known

as “Knight”, on several prior occasions. Five (5) dippers would

have cost in excess of $50, and Emanuel did not know how they

would pay for the drugs, as “money was tight”.

__________

4

Also known as “dippers”, a cigarette [] that is dipped in

embalming fluid and smoked, producing hallucinogenic

properties.

__________

Although Cronon’s car was parked outside, the three (3)

men got into a green Nissan Altima that was in [Rivers’s]

father’s possession. This was the first time Emanuel and

[Rivers] used the Nissan Altima, and the first time Ale had

accompanied [Rivers] and Emanuel to pick up dippers. [Rivers],

Emanuel, and Ale went to meet [Henderson] at Comley and

Miln[o]r Streets to purchase the dippers. During the ride to the

meeting place, [Rivers] and Ale spoke with each other in a

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language which Emanuel did not understand.[2] [Rivers] directed

Emanuel to park in a different place than they normally parked

when picking up the dippers. Instead of parking in the area

where other cars were parked, close to houses, [Rivers]

instructed Emanuel to park farther away from the houses under

a telephone pole.

When the three (3) males arrived at the agreed upon

location, Henderson was not there. At 9:04 P.M., another call

was made from Ale’s cell phone to Henderson who was with his

cousin Tasha Cooper (“Cooper”) at a house on nearby

Homestead Street. Henderson left Cooper and walked toward

Miln[o]r Street. [Rivers] asked Emanuel to give him the keys to

the Nissan, and [Rivers] put them in his pocket. Emanuel

observed that Ale and [Rivers] were each armed with a

handgun. By the time Henderson appeared, [Rivers] had exited

the vehicle and Emanuel and Ale remained in the car. While

[Rivers] and Henderson were talking and Henderson had started

dipping the cigarettes, Ale exited the car and walked up behind

[Henderson] with his weapon drawn. Henderson turned and

threw the dipper liquid at Ale, who started shooting and struck

[Henderson] multiple times. [Rivers], and Ale returned to the

green Nissan and [Rivers] instructed Emanuel to drive the men

out of the area. Cooper, who was still nearby and knew

Henderson sold drugs, heard gunshots and ran towards the

location of the shooting. Cooper found [Henderson] lying injured

in the street. After Emanuel and [Rivers] dropped Ale off,

[Rivers] told Emanuel that [Henderson] got what he deserved.

Emanuel linked this statement to an incident which had occurred

two (2) weeks earlier wherein [Rivers] had contact with the

police while trying to purchase dippers from Henderson.

Henderson was pronounced dead at 10:04 P.M. on August

30, 2011. An autopsy was performed by Deputy Chief Medical

Examiner Dr. Gary Collins. [Henderson] was shot three (3)

times; twice in the back of the torso which caused extensive

internal bleeding, and once in the right forearm. The bullets that

struck the decedent in the back exited the front of his chest,

____________________________________________

2

Emanuel testified they were speaking in a “broken slang version” of

“Jamaican.” N.T., 11/10/2014, at 104.

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while the bullet that struck [Henderson’s] forearm remained

lodged there. The cause of death was found to be multiple

gunshot wounds and the manner of death was found to be

homicide. The ballistics specimen recovered from [Henderson’s]

forearm was consistent with having been fired from a nine (9)

millimeter handgun. Four (4) fired cartridge casings (FCC’s)

were recovered from the scene and it was determined that all

four (4) FCC’s had been fired from the same nine millimeter,

semi-automatic weapon. A Firearms Purchase Record revealed

that Cronon purchased a nine (9) millimeter semiautomatic

handgun on August 12, 2011.

On September 7, 2011, Police Officer Edward Braceland

(“Officer Braceland”) received a radio call which took him to the

Thomas Jefferson University Hospital Emergency Room. Upon

arrival, he spoke with Emanuel who appeared to be in a very

agitated state of mind but who told Officer Braceland that he had

information on a [m]urder and was afraid for his life. A 302

Commit form [for mental health] was completed because of

Emanuel’s stated threat to kill himself, and Emanuel was taken

to the crisis center. After Emanuel was released from the mental

health crisis center, he went to the Homicide Division and made

a statement to homicide detectives on September 12, 2011. He

also gave detectives the number to the cell phone that he and

[Rivers] shared. Emanuel gave written statements to the

homicide detectives on three (3) different occasions and took the

police to the location where the green Nissan was parked.

At trial, Emanuel testified that he had an open criminal

matter in Philadelphia and that he was on [p]robation in another

matter. He also had juvenile adjudications for Making False

Reports and for Robbery. Emanuel stated that no promises had

been made to him by the Commonwealth in connection with his

testimony in this case, however it was stipulated that Emanuel

had received an Order [o]f Immunity regarding his testimony in

the case at bar. The cell phone records of Henderson and

[Rivers] were requested and later presented at trial.

Trial Court Opinion, 10/13/2015, at 4-7 (record citations and some

capitalizaion omitted).

Rivers was subsequently arrested and charged with murder, criminal

conspiracy, persons not to possess firearms, carrying a firearm without a

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license, carrying a firearms on a public street in Philadelphia, and possessing

an instrument of crime.3 The case proceeded to a jury trial, and on

November 17, 2014, the jury found Rivers guilty of first-degree murder,

conspiracy, and carrying a firearm without a license, and not guilty of

possessing an instrument of crime. Rivers was sentenced, on December 5,

2014, to a term of life imprisonment for first-degree murder. No further

punishment was imposed on the remaining charges. Rivers filed a post-

sentence motion challenging the weight and sufficiency of the evidence,

which was denied by operation of law on April 9, 2015. This timely appeal

followed.4

In his first two issues,5 Rivers challenges the trial court’s evidentiary

rulings. Our standard of review is well-settled: “The admissibility of

____________________________________________

3

18 Pa.C.S. §§ 2502, 903, 6105, 6106, 6108, and 907, respectively. The

charges of persons not to possess firearms and carrying firearms on a public

street in Philadelphia were noll prossed before trial.

4

On May 12, 2015, the trial court ordered Rivers to file a concise statement

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

complied with the court’s directive, and filed a concise statement on June

10, 2015.

The delay thereafter resulted from both parties seeking additional time

to file their briefs before this Court. See Order, 11/25/2015 (granting

Rivers’s application for extension of time); Order, 1/22/2016 (granting

Rivers’s second application for extension of time); Order, 3/16/2016

(granting Commonwealth’s application for extension of time); Order,

5/12/2016 (granting Commonwealth’s second application for extension of

time).

5

We have reordered Rivers’s claims for purposes of disposition.

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evidence is a matter for the discretion of the trial court and a ruling thereon

will be reversed on appeal only upon a showing that the trial court

committed an abuse of discretion.” Commonwealth v. Poplawski, 130

A.3d 697, 716 (Pa. 2015) (citation omitted).

Rivers first argues the trial court erred in permitting Emanuel to

“speculate” as to what he thought Rivers meant when he said “‘Knight got

what he deserved.’” Rivers’s Brief at 27, citing N.T., 11/10/2014, at 139.

Emanuel testified he believed Rivers was referring to an incident that

occurred several weeks prior, when Rivers was stopped by police on his way

to purchase dippers from Henderson. See id. However, because Rivers did

not specifically explain to Emanuel the reason why he made the statement,

Rivers contends “Emanuel was purely speculating that [Rivers] was referring

to the earlier incident” and “[i]t is well settled that firsthand or personal

knowledge is a universal requirement of the law of evidence.” Id., citing

Johnson v. Peoples Cab Co., 126 A.2d 720 (Pa. 1956). Accordingly,

Rivers asserts the trial court erred in allowing Emanuel to speculate as to

what was in Rivers’s mind without any first-hand knowledge. See id.

Further, Rivers claims the admission of the testimony was “devastating …

because it served as what the Commonwealth argued was motive evidence.”

Id. at 28.

The trial court, however, found that Rivers failed to preserve this issue

for appeal. See Trial Court Opinion, 10/13/2015, at 15. We agree. It is

axiomatic that a defendant must make a timely and specific objection to a

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trial court’s ruling in order to preserve the claim for appeal. See Pa.R.E.

103(a)(1) (“A party may claim error in a ruling to admit … evidence only … if

… a party, on the record (A) makes a timely objection, motion to strike, or

motion in limine; and (B) states the specific ground, unless it was apparent

from the context[.]”). Although Rivers objected twice to Emanuel’s

testimony regarding the prior incident, he did not “specifically state what the

objection was[.]” Trial Court Opinion, 10/13/2015, at 15. See N.T.,

11/10/2014, at 139, 142. Accordingly, Rivers’s claim is waived on appeal.

Nevertheless, even if we were to find the issue preserved, we would

conclude Rivers is entitled to no relief. Emanuel was with Rivers the night

he was stopped by police. See N.T., 11/10/2014, at 139. He described the

incident, which occurred about two weeks before the shooting, as follows:

I remember an incident happened where me, [Rivers] and

Amber and they had his daughter and Amber’s daughter in the

car. We went to buy dipper sticks off of Knight one time. There

was some type of police raid that was going on at that same

location. And when we called off the phone and went there, I

guess it was the police that was working off the phone. And it

was a setup pretty much. And [Rivers] gave me the phone. He

gave me the money. Told me to get out of the car when we

pulled up. We were there to meet Knight. I got out of the car.

We went and met him. I seen a Ford Taurus drive by. I knew it

was the police. Something told me to keep walking. I was on

the phone. So I did hear the cops came up on the car that had

[Rivers], Amber and their daughter were in. I just kept walking.

So I started walking back home that night. I guess the cops

searched the car and were searching and asked where the phone

was. And they knew he was there to meet Knight. [Rivers] was

pretty pissed off about that.

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Id. at 139-140. Therefore, because Emanuel was present during the prior

incident, and knew, first hand, that Rivers was angry because he believed he

had been set up, Emanuel’s testimony that he believed Rivers was referring

to that incident when he stated “Knight got what he deserved” was not

purely speculative.6

Rivers’s second evidentiary claim concerns the testimony of

Philadelphia Police Officer David Richardson. The Commonwealth called

Officer Richardson to corroborate Emanuel’s testimony regarding the

incident described above. Officer Richardson testified that on August 6,

2011, at 9:49 p.m., while on patrol in the 15th police district, he “ran” a

report on Rivers from the mobile data terminal in his police vehicle. N.T.,

11/12/2014, at 69. He did not recall why he ran the report, or where he

____________________________________________

6

We note the case Rivers cites in support of his argument, Johnson, supra,

is distinguishable, as that decision involved a hearsay objection to a police

sketch of a motor vehicle accident. Johnson, supra, 126 A.2d at 721.

Because the sketch purported to show how the accident occurred, and the

officer who drew the sketch admitted he did not arrive on the scene until five

or 10 minutes after the accident, the Supreme Court affirmed the trial

court’s order granting a new trial. The Court explained:

Obviously this description of the occurrence could have been

obtained by the officers only from witnesses interviewed by

them, and therefore was purely hearsay testimony, affording no

opportunity to plaintiffs to cross-examine the unknown,

undisclosed persons upon whose statements this important

feature of the report was based.

Id. at 722 (citation omitted). Here, as noted above, Emanual’s testimony

concerning the prior incident was based on his own firsthand knowledge.

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was when Rivers was stopped. Id. at 70-71. When the officer began

referring to a written police report, counsel for Rivers objected. During a

sidebar discussion, the trial court ruled the Commonwealth could not use

copies of various police reports to attempt to piece together where Rivers

was stopped. Id. at 91. The court, however, denied counsel’s request to

strike the last question to the officer, as well as his answer, which read as

follows:

Q. Do you recall where [Rivers] was when this search was

done?

A. In the beginning I couldn’t recall where this location was.

But you get the printouts of the times with other CAD reports of

the messages and you’re trying to mesh it together. And I have

a printout that shows 15-Tom-22.

Id. at 71. Officer Richardson had previously testified that a “15-Tom-22”

was a “vehicle investigation by … an unmarked unit, plainclothes officers.”

Id. at 66.

Rivers contends the trial court erred in permitting the officer’s

testimony and denying his motion to strike. He claims the testimony was

hearsay, because Officer Richardson had no recollection of the stop without

reference to the police reports, and therefore, inadmissible. Rivers’s Brief at

29. Moreover, Rivers insists the decision to permit the testimony was

“devastating” to him because it provided a motive for the crime. Id. at 30.

The trial court, however, insists that it sustained Rivers’s objection to

the officer’s testimony, and precluded the Commonwealth from using the

police reports as exhibits. See Trial Court Opinion, 10/13/2015, at 15-16.

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The court opined: “When coupled with the fact that the Commonwealth

does not have to prove motive to establish [Rivers] committed the crimes of

First Degree Murder or Conspiracy to Commit Murder, [this issue is]

meritless.” Id. at 16 (some capitalization omitted). See Commonwealth

v. Briggs, 12 A.3d 291, 340 n. 44 (Pa. 2011) (“[I]t is well established that

the Commonwealth is not required, as a matter of law, to prove the

accused’s motive even where the offense charged is murder in the first

degree.”) (quotation omitted).

Our review of the transcript from the jury trial reveals the trial court

did not sustain Rivers’s objection to the officer’s testimony; rather, the court

only excluded the police reports upon which the officer relied. See N.T.,

11/12/2014, at 91-92. During a sidebar discussion the next morning, the

trial court clarified that the prosecutor could “use the testimony from Officer

Richardson … that he ran [Rivers’s]” information on his mobile computer.

N.T., 11/13/2014, at 16. However, the court did not permit the

Commonwealth to present another witness, who it claimed would have

testified Officer Richardson was in the area of the 5900 block of Milnor Street

when he ran Rivers’s information.7 Id. at 14-16.

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7

The Commonwealth was attempting to establish that Rivers was stopped

on August 6, 2011, in the same area where the shooting occurred less than

a month later, in order to corroborate Emanuel’s claim that the shooting was

in retribution for the earlier incident. The Commonwealth sought to

demonstrate this by presenting the testimony of another police officer who

ran a report for a stolen car on Officer Richardson’s mobile computer around

(Footnote Continued Next Page)

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Nevertheless, we find no error or abuse of discretion on the part of the

trial court. Although Officer Richardson had no independent recollection of

the night in question, he used the police report, which included his payroll

number and was run from his mobile computer,8 to refresh his recollection.

Pennsylvania Rule of Evidence 612 provides that a witness “may use a

writing … to refresh memory for the purpose of testifying while testifying, or

before testifying.” Pa.R.E. 612(a). Moreover, the only information the trial

court permitted the jury to hear was that Officer Richardson “ran” Rivers’s

name at 9:49 p.m. on August 6, 2011. Accordingly, even if we would

conclude the trial court erred in allowing the Commonwealth to introduce

this testimony, any error was harmless, as the prejudice, if any, to Rivers

was de minimus. See Poplawski, supra, 130 A.3d at 716 (“An error is

harmless if it could not have contributed to the verdict, or stated conversely,

an error cannot be harmless if there is a reasonable possibility the error

might have contributed to the conviction.”). Indeed, Emanuel testified

Rivers was stopped by police one or two weeks before the shooting in the

_______________________

(Footnote Continued)

the same time as Officer Richardson ran a report on Rivers. The stolen

vehicle, which was not connected to Rivers, was located on the 5900 block

of Milnor Street. Through this attenuated connection, the Commonwealth

sought to prove that Rivers must have been stopped in that same area. The

trial court, however, refused to allow the Commonwealth to present the

additional testimony. See N.T., 11/13/2014, at 10-16.

8

See N.T., 11/12/2014, at 69.

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same area where the shooting occurred. See N.T., 11/10/2014, at 140-141.

Officer Richardson, however, testified he “ran” Rivers’s information through

his mobile computer on August 6, 2011, three and one-half weeks before the

shooting. N.T., 11/12/2014, at 69. The officer did not provide any

testimony as to where or why he stopped Rivers. Accordingly, his testimony

did not corroborate Emanuel’s recollection. Therefore, no relief is warranted.

Next, Rivers argues the evidence was insufficient to support his

convictions.

In reviewing the sufficiency of the evidence, we consider

whether the evidence presented at trial, and all reasonable

inferences drawn therefrom, viewed in a light most favorable to

the Commonwealth as the verdict winner, support the [fact

finder’s] beyond a reasonable doubt. Commonwealth v.

Murray, [623] Pa. [506], 83 A.3d 137, 150–51 (2013).

Whether sufficient evidence exists to support the verdict is a

question of law; thus, our standard of review is de novo and our

scope of review is plenary. Id. at 151.

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014), cert. denied,

135 S. Ct. 1400 (U.S. 2015).

In the present case, Rivers was convicted of first-degree murder and

criminal conspiracy to commit murder.

To convict a defendant of first-degree murder, the jury

must find that (1) a human being was unlawfully killed; (2) the

defendant is responsible for the killing; and (3) the defendant

acted with a specific intent to kill. See 18 Pa.C.S. § 2502(a);

[Commonwealth v.] Spotz, 759 A.2d [1280,] 1283 [Pa. 2000].

Specific intent to kill can be established through circumstantial

evidence, such as the use of a deadly weapon on a vital part of

the victim’s body. Commonwealth v. Rega, 593 Pa. 659, 933

A.2d 997, 1009 (2007). Further, to prove conspiracy, “the trier

of fact must find that: (1) the defendant intended to commit or

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aid in the commission of the criminal act; (2) the defendant

entered into an agreement with another ... to engage in the

crime; and (3) the defendant or one or more of the other co-

conspirators committed an overt act in furtherance of the agreed

upon crime.” Commonwealth v. Murphy, 577 Pa. 275, 844

A.2d 1228, 1238 (2004). Finally, each member of a conspiracy

to commit homicide can be convicted of first-degree murder

regardless of who inflicted the fatal wound. Commonwealth v.

Wayne, 553 Pa. 614, 720 A.2d 456, 460 (1998).

Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008).

Rivers argues the jury’s verdict was based on speculation and

conjecture. Rivers’s Brief at 19. Specifically, with respect to the charge of

first-degree murder, Rivers asserts the evidence did not establish he

possessed the specific intent to kill Henderson. See id. at 23-24. Rather,

he claims Emanuel testified Ale shot Henderson only after Henderson threw

embalming liquid in Ale’s face. See id. at 23. Rivers argues Emanuel “did

not suggest there was a plan to shoot and/or kill the decedent.” Id.

Further, he emphasizes Officer Irvine’s “unbiased testimony” that the

shooter was by himself on the driver’s side of the car, while the other two

males present remained on the passenger’s side of the car. Id. at 24.

Moreover, with respect to his conspiracy conviction, Rivers contends the

evidence failed to establish “there was an agreement to shoot/kill the

decedent.” Id. at 25.

The trial court, however, found the Commonwealth presented

sufficient circumstantial evidence to establish Rivers and Ale conspired to

murder Henderson. In particular, the court focused on the “abnormal, overt

actions taken by [Rivers] which deviated from [his and Emanuel’s] four (4)

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previous trips to pick up dippers.” Trial Court Opinion, 10/13/2015, at 13.

These actions included: (1) using the green Altima rather than Cronon’s car,

which was available; (2) increasing the order to five dippers, when “money

was tight;” (3) bringing Ale to the transaction; (4) directing Emanuel to park

in a different spot than usual; and (5) taking the keys from Emanuel once

they arrived. Id. Moreover, Emanuel testified both Rivers and Ale were

armed, and spoke to each other in a language he did not understand. See

id. Emanuel also recounted that after the shooting, Rivers told him “Knight

got what he deserved.”9 Id., citing N.T., 11/10/2014, at 139.

The court also found evidence of a conspiratorial agreement in the fact

that “[o]n the day of Henderson’s murder, [Rivers] and Ale were in

consistent, frequent contact and they were both armed.” Id. Indeed, cell

phone records established Rivers and Ale exchanged 19 calls between noon

and 8:31 p.m. on the day of the murder. See id. Moreover, Rivers

instructed Emanuel to use Ale’s cell phone to contact Henderson.

Our review of the record reveals no basis to disagree with the trial

court. The evidence of Rivers’s atypical actions on the day in question,

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9

Emanuel further testified that he believed Rivers was referring to an

incident that had occurred a week or two before the shooting when Rivers

was stopped in a police raid on his way to meet Henderson to buy dippers.

See N.T., 11/10/2014, at 139-140. Emanuel claimed Rivers was “pretty

pissed off about that” because he believed it was a set up. Id. at 140. As

will be discussed, infra, Rivers argues on appeal that the trial court erred in

permitting this testimony at trial.

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coupled with his consistent contact with Ale, their secret conversation in a

foreign language, and the fact they both traveled to the scene armed with

guns, was sufficient to establish, circumstantially, that Rivers and Ale

conspired to murder Henderson. Moreover, those actions, coupled with

Rivers’s post shooting comment “Knight got what he deserved,” 10 was

sufficient to demonstrate Rivers possessed the specific intent to kill

Henderson. See Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa.

2000) (“[T]he Commonwealth can prove the specific intent to kill from

circumstantial evidence.”). As for Rivers’s claim that Ale shot the victim only

after being doused in embalming fluid, Rivers ignores Emanuel’s testimony

that Henderson threw the embalming fluid only after he saw Ale pointing a

gun at him. See N.T., 11/10/2014, at 128. Accordingly, we find the

evidence was sufficient to support Rivers’s convictions of first-degree murder

and conspiracy.

Lastly, Rivers challenges the weight of the evidence supporting the

jury’s verdict. Our review of a weight claim is well-established:11

The weight of the evidence is a matter exclusively for the finder

of fact, who is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses. A new trial is

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10

N.T., 11/10/2014, at 139.

11

We note Rivers properly preserved his weight of the evidence claim in a

post-sentence motion. See Pa.R.Crim.P. 607(A)(1). Although the motion

was denied by operation of law, the trial court addressed this issue in its

Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 10/13/2015, at 7-11.

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not warranted because of “a mere conflict in the testimony” and

must have a stronger foundation than a reassessment of the

credibility of witnesses. 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. On appeal, our

purview is extremely limited and is confined to whether the trial

court abused its discretion in finding that the jury verdict did not

shock one’s conscience. Thus, appellate review of a weight claim

consists of a review of the trial court’s exercise of discretion, not

a review of the underlying question of whether the verdict is

against the weight of the evidence. An appellate court may not

reverse a verdict unless it is so contrary to the evidence as to

shock one’s sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en

banc), quoting Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa.

Super. 2015) (citations omitted).

Here, Rivers claims the jury’s verdict was against the weight of the

evidence because the Commonwealth “failed to establish [he] had the

motive to participate in the shooting.” Rivers’s Brief at 16. Rivers

emphasizes there was no evidence presented that he fired a gun, and the

only testimony implicating him came from Emanuel, “a corrupt and polluted

source,” who (1) received immunity in exchange for his testimony, (2) was a

regular user of PCP, and (3) had been adjudicated delinquent for making a

false report to police. Id. Moreover, Rivers asserts Emanuel “displayed

post-offense behavior that was consistent with his own guilt,” in that he

waited two weeks to speak to police, and did so only after being involuntarily

committed to a crisis center. Id. at 16-17. Lastly, Rivers argues the only

“unbiased eyewitness testimony” came from off-duty Philadelphia Police

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Officer Clarence Irvine, who incriminated Emanuel as the shooter. Id. at 17.

According to Rivers, Officer Irvine reported the shooter was the driver of the

Altima, and was wearing a white t-shirt and jeans, which was what Emanuel

was wearing on the night in question. Id. Consequently, Rivers contends:

“A guilty verdict based on such scant evidence should shock one’s sense of

justice.” Id. at 18.

The trial court, however, found the verdict was not against the weight

of the evidence. The court explained:

This issue lacks merit as in the instant case, the jury’s

verdict of guilty does not shock the conscience. At trial, the

Commonwealth presented the testimony of eye-witness Emanuel

as well as the cellphone records of Henderson and [Rivers] to

establish that [Rivers] conspired to [m]urder [Henderson] and

was therefore responsible for his death. It is uncontroverted

that Ale shot Henderson two (2) times in his abdomen and the

shots resulted in Henderson’s death. Circumstantial evidence

showed that [Rivers] had a specific intent to kill, as exhibited by

[his] actions and statement after the [m]urder.

Emanuel testified that when he exited [Rivers’s] parents’

house with [Rivers], Ale was waiting outside. Emanuel further

testified to a series of abnormal, overt actions taken by [Rivers]

which deviated from their four (4) previous trips to pick up

dippers. Emanuel, who possessed a valid driver’s license would

drive [Rivers] to run various errands in Cronon’s white Nissan

sedan, however that day, though Cronon’s car was present,

[Rivers] instructed Emanuel to drive the green Nissan Altima.

On that day [Rivers] requested five (5) dippers, increasing the

order from his usual one or two (1-2) although money was tight.

Ale had never accompanied Emanuel to pick up dippers prior to

this incident. When the three (3) men arrived at the agreed

upon location, [Rivers] instructed Emanuel to park in a different

place than usual, farther away from houses on the street, and

thereafter pocketed the keys which was also atypical. In

addition to these unfamiliar actions taken by [Rivers], Emanuel

testified that [Rivers] and Ale were both armed when they went

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to pick up the dippers, and spoke to each other in a language

Emanuel did not understand. When Henderson showed up,

Emanuel witnessed Ale shoot Henderson multiple times. After

the shooting, [Rivers] told Emanuel that Henderson got what he

deserved.

Emanuel also testified that [Rivers] asked him to make two

(2) phone calls to Henderson from Ale’s cell phone, once before

[Rivers], Emanuel, and Ale departed to pick up the dippers, and

a second time to announce their arrival at the location. This

testimony was corroborated by [Henderson’s] cell phone records.

Police Officer Steve Buckley (“Officer Buckley”) testified that he

analyzed [Rivers’s] cell phone records as well as Henderson’s cell

phone records. Henderson’s cell phone records showed that he

received two (2) phone calls from Ale’s phone number on the

night of the incident, the first call at 8:55 P.M. and the second at

9:04 P.M., minutes prior to the shooting at 9:12 P.M. Officer

Buckely also found that [Rivers] and Ale exchanged 19 phone

calls between noon and 8:31 P.M. on the day of the incident. On

the afternoon of Henderson’s [m]urder, [Rivers] and Ale were in

consistent, frequent contact and they were both armed. [Rivers]

instructed Emanuel to use Ale’s cell phone to arrange the

transaction, and [Rivers] completed a number of actions which

strayed from his typical procedure of buying dippers. This

conduct, viewed as a collective, led the jury to believe that both

[Rivers] and Ale had the specific intent to [m]urder Henderson.

[Rivers] was thus responsible for any actions of his co-

conspirator Ale, undertaken in furtherance of the [c]onspiracy.

As such, there was no need for the Commonwealth to prove that

[Rivers] fired a gun.

The jury was instructed with the standard instruction on

how to treat accomplice testimony – corrupt and polluted source,

and was informed about Emanuel’s mental health issues as well

as his Order of Immunity in the instant case. Emanuel testified

that he had an open criminal matter in Philadelphia and that he

was on probation in another matter. The jury was also informed

that Emanuel had juvenile adjudications for Making False

Reports and for Robbery. Emanuel stated that no promises had

been made to him by the Commonwealth in connection with his

testimony in this case, however, it was stipulated that Emanuel

had received an Order of Immunity regarding his testimony in

the case at bar. The jury, as fact finder, had the sole discretion

of assessing the credibility of witnesses at trial. The finder of

fact is free to believe all, part, or none of the evidence and to

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determine the credibility of the witnesses. Here, the jury chose

to believe Emanuel in tandem with cell phone record evidence

and came to the conclusion that [Rivers] was guilty of

Conspiracy and First[-]Degree Murder. The verdict was not

against the weight of the evidence.

Trial Court Opinion, 10/13/2015, at 9-11 (record citations and some

capitalization omitted).

Our review of the transcript from Rivers’s jury trial reveals no abuse of

discretion on the part of the trial court. The jury obviously found Emanuel

credible, as was its prerogative, and that assessment does not shock our

conscience. See Rossner, supra.

Furthermore, we disagree with Rivers’s contention that the “unbiased

eyewitness”12 testimony of off-duty Police Officer Irvine exonerated him.

Rather, Officer Irvine testified he was hanging out with his cousins about

100 feet from the shooting, and he looked in the direction of the crime only

after he heard gunshots. N.T., 11/13/2014, at 53-57. Although in his initial

statement to detectives, Officer Irvine stated the shooter was the driver of

the Altima, he clarified on cross-examination that he saw the shooter get

into the driver’s side of the vehicle after the shooting. Id. at 63, 76.

Furthermore, while Officer Irvine identified the shooter as the only one

wearing a white t-shirt, and Emanuel acknowledged he was wearing a white

____________________________________________

12

Rivers’s Brief at 17.

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t-shirt on the night in question,13 the officer also stated he had no doubt the

shooter was a black male. Id. at 63-64, 67. Emanuel, however, is

Caucasian, while Rivers, Ale and Henderson are all African American. N.T.,

11/10/2014, at 271. Therefore, the jury could have reasonably determined

that Officer Irvine’s testimony did not completely contradict Emanuel’s

version of the events in question. Accordingly, bound by our standard of

review, we cannot say the trial court abused its discretion in denying

Rivers’s challenge to the weight of the evidence. See Rosser, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2016

____________________________________________

13

Emanuel testified that on the night of the shooting, he was wearing a

white t-shirt and Ale was wearing “dark clothing,” but he was “not exactly

sure what [Rivers] had on that day[.]” N.T., 11/10/2014, at 269.

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