# Com. v. Jones, J.

> Superior Court of Pennsylvania · November 19, 2021

URL: https://www.frixlaw.com/law-library/cases/5128124

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** November 19, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Nichols, J.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5128124

## How later opinions describe it (automated extraction)

- finding that evidence of defendant's "long standing feud" with victim's relative and verbal statement to victim prior to shooting was sufficient to establish intent
- finding intent where appellant expressed his desire to kill his estranged wife for leaving ~

## Opinion text

J-A21028-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMAL JONES :
:
Appellant : No. 1893 EDA 2020

Appeal from the Judgment of Sentence Entered January 18, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006906-2017

BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 19, 2021

Appellant Jamal Jones appeals nunc pro tunc from the judgment of

sentence imposed following his jury trial and convictions for attempted first-

degree murder, conspiracy to commit first-degree murder, aggravated

assault, conspiracy to commit aggravated assault, and possession of an

instrument of a crime (PIC).1 Appellant challenges the sufficiency of the

evidence supporting all of his convictions. After review, we affirm in part, and

vacate in part as to the sentence for conspiracy to commit murder.

We adopt the facts and procedural history set forth in the trial court’s

October 24, 2019 opinion. See Trial Ct. Op., 10/24/19, at 2-16. Briefly, on

the night of August 8, 2017, Appellant, Jahleel Davis (co-defendant), and
____________________________________________

* Former Justice specially assigned to the Superior Court.

118 Pa.C.S. §§ 901(a), 2502(a); 903(a)(1), 2502(a); 2702(a)(1), 903(a)(1),
2702(a)(1); and 907(a), respectively.
J-A21028-21

Taron Ebo-Wilson2 shot Kendall Rosendary in Norristown, Pennsylvania.3 At

that time, Rosendary was walking on Cherry Street near a playground.

Rosendary heard people yelling, and he ran when he saw someone with a gun.

Appellant, co-defendant, and Ebo-Wilson shot Rosendary multiple times.

Rosendary was rushed to a hospital and survived. Rosendary could not

identify who shot him, but told police that at least three men, all of them

armed, had attacked him. Rosendary also recalled that two of the attackers

were wearing dark hooded sweatshirts.

Norristown Police chased a Chevrolet Impala that left the vicinity of the

shooting at high speed. The Impala pulled onto Cherry Street and three

individuals fled the Impala on foot. The police recovered a .38 Special caliber

revolver containing six fired cartridge casings and a magazine from a .40

caliber Glock Model 27 handgun from the Impala’s interior.

The police searched the area around where the Impala stopped and

arrested Appellant and Ebo-Wilson hiding under a back porch in the early

morning hours of August 9, 2017. The police recovered a .40 caliber Glock

____________________________________________

2Ebo-Wilson pleaded guilty to attempted murder and conspiracy to commit
murder in connection to the Rosendary shooting on October 12, 2018.
Appellant and co-defendant Davis’s joint trial for charges related to the
Rosendary shooting lasted from October 26, 2018 to November 2, 2018.

3 The shooting of Rosendary was related to a series of shootings involving rival
groups of young men from Norristown and Pottstown. Appellant, co-
defendant, and Ebo-Wilson intended to kill a member of the Norristown faction
in retaliation for the murder of Jordan Scott, a member of their Pottstown
faction. Rosendary was not affiliated with either group.

-2-
J-A21028-21

Model 27 handgun from the area where they arrested Appellant and Ebo-

Wilson. When the police patted down Appellant, they discovered a Chevrolet

car key. Appellant told the officers that it was the key to his Impala. The

police matched Appellant’s key to the abandoned Impala on Cherry Street.

The police arrested co-defendant Davis in a nearby backyard. The police

found a .45 caliber Para-Ordnance handgun and a black hooded sweatshirt

near the area where they arrested co-defendant. The police also recovered

cell phones from the Impala and from Davis.

The police recovered both fired cartridge casings of various calibers and

bullet fragments from the scene of the shooting. Detective Eric Nelson of the

Montgomery County Detective Bureau, an expert in the field of forensic

firearms identification and analysis, testified that he examined the

aforementioned firearms as well as fired cartridge casings, bullets, and bullet

fragments that the police recovered from the scene of the Rosendary shooting.

Detective Nelson opined that the Glock Model 27 firearm recovered near

Appellant and Ebo-Wilson fired the .40 caliber fired cartridge casings he

examined. Detective Nelson also concluded that a single firearm had fired the

recovered .45 caliber cartridge casings, but the Para-Ordnance pistol the

police recovered when they arrested co-defendant Davis did not fire those .45

caliber cartridge casings. Detective Nelson further testified that some of the

bullets and bullet fragments that were recovered from the scene of the

shooting were consistent with bullets fired from the Glock Model 27 pistol and

others were consistent with bullets fired from the .38 Special caliber revolver.

-3-
J-A21028-21

The police also recovered several 9mm caliber fired cartridge casings from the

scene of the shooting, but the police never recovered a 9mm caliber firearm

after the shooting.

The Pennsylvania State Police Harrisburg Regional Crime Lab found

gunshot residue on the sweatshirt recovered near co-defendant Davis. Albert

Lattanzi of the Harrisburg Crime Lab testified that the presence of this residue

on the sweatshirt was consistent with the recent firing of a gun by the wearer

of the shirt or that the shirt’s wearer was near someone else who was firing a

gun.

The police performed swabs on the firearms they recovered from to test

for DNA. The parties stipulated, in relevant part, that the DNA swabs taken

from the grip of the .38 Special caliber revolver found in the back of the Impala

contained a mixture of DNA from at least three individuals, and it was 19,660

times more likely that co-defendant Davis was one of those three individuals

than a random person. DNA swabs taken from the Glock Model 27 pistol

contained a mixture of DNA from at least two individuals, and it was over one

million times more likely to have come from Ebo-Wilson than from a random

person.

Appellant and co-defendant Davis’ cell phones contained videos and

photographs depicting various firearms. Davis also made numerous posts on

Facebook expressing his desire to get revenge for the death of Scott, that he

intended to “grab bigger guns”, “mask up”, and “catch another body.”

-4-
J-A21028-21

Co-defendant Davis testified that he, Appellant, and Ebo-Wilson

attended a party in Norristown on August 8, 2017. Davis stated that after the

three of them left the party and were walking down the street, someone called

to them. Davis said that he saw a man pointing a gun at him. Davis could

not identify Rosendary as that gunman. Davis testified that he and his

companions ran away from the gunman, who opened fire. Davis stated that

he then drew his gun and returned fire. Davis testified that Appellant and

Ebo-Wilson were not involved in the shooting. Davis, Appellant, and Ebo-

Wilson got into Appellant’s Impala, and Appellant drove them away from the

shooter. Davis said he, Appellant, and Ebo-Wilson then abandoned the car

and fled on foot after police vehicles blocked their path. Davis claimed his

comments on social media were references to the music he listens to.

Appellant did not testify.

On November 2, 2018, the jury convicted Appellant of attempted first-

degree murder, conspiracy to commit first degree murder, aggravated assault,

conspiracy to commit aggravated assault, and PIC.4

On January 18, 2019, the trial court sentenced Appellant to concurrent

terms of twelve-and-a-half to twenty-five years’ imprisonment for attempted

murder and conspiracy to commit murder. The trial court imposed no further
____________________________________________

4 The jury also found co-defendant Davis guilty of the same offenses. This
Court recently affirmed Davis’ judgment of sentence except as to his to
sentence for conspiracy to commit murder. See Commonwealth v. Davis,
1964 EDA 2019, 2021 WL 4617988, at *12 (Pa. Super. filed Oct. 6, 2021)
(unpublished mem.). Davis did not challenge the sufficiency of the evidence
on appeal. Id., 2021 WL 4617988, at *3-4.

-5-
J-A21028-21

penalty for Appellant’s PIC conviction. The trial court determined that

Appellant’s aggravated assault conviction merged with his attempted murder

conviction and his conspiracy to commit aggravated assault conviction merged

with the conspiracy to commit murder conviction.

Appellant filed a timely post-sentence motion arguing that the evidence

was insufficient to sustain his convictions for conspiracy to commit murder,

attempted murder, and PIC, among other issues. See Post-Sentence Mot.,

1/28/19, at 3-4 (unpaginated). The trial court denied Appellant’s post-

sentence motion on June 10, 2019.

Appellant then timely appealed and filed a court-ordered Pa.R.A.P.

1925(b) statement. The trial court filed an opinion addressing Appellant’s

sufficiency of the evidence claims pursuant to Pa.R.A.P. 1925(a). See Trial

Ct. Op., 10/24/19. This Court docketed that appeal at 1842 EDA 2019. On

January 22, 2020, this Court dismissed that appeal because Appellant failed

to file a brief.

The trial court explained the subsequent procedural history as follows:

[On January 24, 2020, t]he [trial] court received [pro se]
correspondence from [Appellant] addressed to the Clerk of Courts
asking whether [Appellant’s] trial and appellate counsel, Francis
Genovese, Esquire, had filed an appeal for this case. The [trial]
court treated this correspondence as [Appellant’s] [Post-
Conviction Relief Act5 (PCRA)] petition. On March 4, 2020, the
[PCRA] court appointed Matthew Quigg, Esquire to represent
[Appellant] and granted [Attorney Quigg] leave to file an amended
PCRA petition or [a] Finley[fn3] letter. On July 17, 2020,
[Appellant, through counsel,] petitioned to reinstate his direct
____________________________________________

5 42 Pa.C.S. §§ 9541-9546.

-6-
J-A21028-21

appeal rights nunc pro tunc pursuant to the Post-Conviction Relief
Act. After an evidentiary hearing held on September 14, 2020,
[Appellant’s] appeal rights were reinstated nunc pro tunc.
[Appellant] filed a new Notice of Appeal on October 9, 2020.
[Appellant] filed a [Rule 1925(b)] concise statement of matters
complained of on appeal [challenging the sufficiency of the
evidence]. . . .

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
[fn3]

Ct. 1988) [(en banc)].

Trial Ct. Op., 1/4/21, at 1-2 (some citations and footnotes omitted). The trial

court’s January 4, 2021 opinion adopted the analysis of its October 24, 2019

opinion addressing Appellant’s sufficiency of the evidence claims. Id. at 2.

Appellant raises the following issue for our review:

Did the trial court err in denying Appellant’s post-sentence motion
for a judgment of acquittal on the charges of attempted murder,
criminal conspiracy to commit murder, and possessing an
instrument of crime?

Appellant’s Brief at 4 (formatting altered).

Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence for all of his

convictions. Id. at 7-17. Appellant argues the evidence presented at trial,

viewed in the light most favorable to the Commonwealth, “established merely

that Appellant was present at the scene of the crime and knew of its

commission, which is insufficient to convict him.” Id. at 7. Specifically,

Appellant contends there was no evidence that he possessed the specific intent

to kill or undertook a substantial step to commit murder, and therefore there

was insufficient evidence to sustain his conviction for attempted murder. Id.

-7-
J-A21028-21

at 12-16. Next, Appellant asserts the evidence was insufficient to sustain his

conspiracy to commit murder conviction because there was no evidence

presented at trial that he had entered into an explicit or tacit agreement to

shoot Rosendary. Id. at 7-12. Lastly, Appellant claims that because no

evidence established that he possessed a firearm, the evidence was

insufficient to sustain his conviction for PIC. Id. at 16-17.

The Commonwealth responds that Appellant’s sufficiency claims are

meritless. Commonwealth’s Brief at 12-25. Among other reasons, the

Commonwealth argues that, at the very least, the evidence established that

Appellant acted as a getaway driver for Davis. Id. at 12. The Commonwealth

contends that by acting as the getaway driver, Appellant can be found guilty

as a co-conspirator. Id. at 13. The Commonwealth also asserts that

Appellant’s Rule 1925(b) statement was too vague to preserve his challenges

to the sufficiency of the evidence. Id. at 25-27. Specifically, the

Commonwealth contends that Appellant’s Rule 1925(b) statement did “not

identify the elements for which the evidence is supposedly insufficient.” 6 Id.

at 27.

____________________________________________

6 It is well settled that a vague challenge to the sufficiency of the evidence
may result in waiver. See Commonwealth v. Roche, 153 A.3d 1063, 1072
(Pa. Super. 2017). Instantly, the trial court addressed Appellant’s sufficiency
claims in its October 24, 2019 Rule 1925(a) opinion. Therefore, we decline to
find waiver. See Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007)
(per curiam).

-8-
J-A21028-21

In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation

omitted), appeal denied, 204 A.3d 924 (Pa. 2019).

“Criminal attempt to murder is defined by reading the attempt statute,

18 Pa.C.S. § 901(a), in conjunction with the [first-degree] murder statute, 18

Pa.C.S. § 2502(a).” Commonwealth v. Predmore, 199 A.3d 925, 929 (Pa.

Super. 2018) (en banc) (citation omitted). Therefore, to sustain a conviction

for attempted first-degree murder, the Commonwealth must prove that “the

defendant had the specific intent to kill and took a substantial step towards

that goal.” Id. (citation omitted); see also 18 Pa.C.S. § 901(a) (stating “[a]

person commits an attempt when, with intent to commit a specific crime, he

does any act which constitutes a substantial step toward the commission of

-9-
J-A21028-21

that crime”); 18 Pa.C.S. § 2502(a) (stating “[a] criminal homicide constitutes

murder of the first degree when it is committed by an intentional killing”).

To prove conspiracy, the trier of fact must find that: 1) the
defendant intended to commit or 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. In most cases of
conspiracy, it is difficult to prove an explicit or formal agreement;
hence, the agreement is generally established via circumstantial
evidence, such as by the relations, conduct, or circumstances of
the parties or overt acts on the part of co-conspirators. In the
case of a conspiracy to commit homicide, each member of the
conspiracy can be convicted of first-degree murder regardless of
who inflicted the fatal wound.

Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa. 2009) (citations and

quotation marks omitted); see also Commonwealth v. Barnes, 871 A.2d

812, 820 (Pa. Super. 2005) (stating “[o]nce the trier of fact finds that there

was an agreement and the defendant intentionally entered into the

agreement, that defendant may be liable for the overt acts committed in

furtherance of the conspiracy regardless of which co-conspirator committed

the act” (citation omitted)).

This Court has further explained:

The essence of a criminal conspiracy is a common understanding,
no matter how it came into being, that a particular criminal
objective be accomplished. Therefore, a conviction for conspiracy
requires proof of the existence of a shared criminal intent. An
explicit or formal agreement to commit crimes can seldom, if ever,
be proved and it need not be, for proof of a criminal partnership
is almost invariably extracted from the circumstances that attend
its activities. Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances of the

- 10 -
J-A21028-21

parties, and the overt acts of the co-conspirators sufficiently prove
the formation of a criminal confederation. The conduct of the
parties and the circumstances surrounding their conduct may
create a web of evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt.

Commonwealth v. Melvin, 103 A.3d 1, 42-43 (Pa. Super. 2014) (citation

omitted).

Furthermore, “[t]he driver of a getaway car can be found guilty as a co-

conspirator if it is reasonable to infer that he was aware of the actual

perpetrator’s intention.” Commonwealth v. Davalos, 779 A.2d 1190, 1194

(Pa. Super. 2001) (citing Commonwealth v. Brown, 505 A.2d 295, 297 (Pa.

Super. 1986)).

A person is guilty of PIC if he “possesses an instrument of crime with

intent to employ it criminally.” 18 Pa.C.S. § 907(a). An instrument of crime

is defined as “[a]nything used for criminal purposes and possessed by the

actor under circumstances not manifestly appropriate for lawful uses it may

have.” 18 Pa.C.S. at § 907(d)(2). It is well established “a conviction for

possessing an instrument of crime can be sustained even if it is based on

circumstantial evidence.” Commonwealth v. Buford, 101 A.3d 1182, 1189-

90 (Pa. Super. 2014) (citing Commonwealth v. Woodbury, 477 A.2d 890,

893 (Pa. Super. 1984)).

Specifically, this Court has stated:

The only evidence in support of the accusation of possession was
purely circumstantial. However, once the factfinder concluded
that the [defendant] was the slayer and that the death resulted
from the infliction of a gunshot wound, the factfinder could
logically have concluded from all of the evidence that [the

- 11 -
J-A21028-21

defendant] had possession of a gun, that the gun was an
instrument commonly used for criminal purposes, and that his
possession of the gun was, under the circumstances, not
manifestly appropriate for any lawful use that the gun may have
had. . . . Therefore, [the defendant’s] conviction for this offense
was grounded upon competent evidence. The evidence brought
out during the course of the trial is sufficient to sustain both the
conviction for murder in the third degree and the conviction for
possession of an instrument of crime.

Woodbury, 477 A.2d at 893-94 (citation and footnote omitted).

Section 306 of the Crimes Code defines accomplice liability as follows:

(a) General rule.—A person is guilty of an offense if it is
committed by his own conduct or by the conduct of another person
for which he is legally accountable, or both.

(b) Conduct of another.—A person is legally accountable for the
conduct of another person when:

(1) acting with the kind of culpability that is sufficient for the
commission of the offense, he causes an innocent or
irresponsible person to engage in such conduct;

(2) he is made accountable for the conduct of such other
person by this title or by the law defining the offense; or

(3) he is an accomplice of such other person in the commission
of the offense.

(c) Accomplice defined.—A person is an accomplice of another
person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission
of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in
planning or committing it; or

(2) his conduct is expressly declared by law to establish his
complicity.

- 12 -
J-A21028-21

(d) Culpability of accomplice.—When causing a particular
result is an element of an offense, an accomplice in the conduct
causing such result is an accomplice in the commission of that
offense, if he acts with the kind of culpability, if any, with respect
to that result that is sufficient for the commission of the offense.

* * *

(g) Prosecution of accomplice only.—An accomplice may be
convicted on proof of the commission of the offense and of his
complicity therein, though the person claimed to have committed
the offense has not been prosecuted or convicted or has been
convicted of a different offense or degree of offense or has an
immunity to prosecution or conviction or has been acquitted.

18 Pa.C.S. § 306.

After careful consideration of the record, the parties’ arguments, and

the trial court’s opinion, concerning the sufficiency of the evidence, we affirm

on the basis of the trial court’s opinion. See Trial Ct. Op., 10/24/19, at 16-

22. Specifically, we agree with the trial court that there was sufficient

evidence, when viewed in the light most favorable to the Commonwealth, to

support Appellant’s convictions, particularly as a member of the conspiracy

such that Appellant can be found criminally liable for the acts of his co-

conspirators. See id.; Palmer, 192 A.3d at 89; Barnes, 871 A.2d at 820.

Legality of Sentence

We also address the legality of Appellant’s sentence, which this Court

may raise sua sponte. See Commonwealth v. Pi Delta Psi, Inc., 211 A.3d

875, 889 (Pa. Super. 2019). Pursuant to 18 Pa.C.S. § 906, “[a] person may

not be convicted of more than one inchoate crime of attempt, solicitation, or

conspiracy for conduct designed to commit or to culminate in the commission

- 13 -
J-A21028-21

of the same crime.” A Section 906 violation goes to the legality of the

sentence. Commonwealth v. Jacobs, 39 A.3d 977, 982 (Pa. 2012)

(plurality); see also Commonwealth v. Cooke, 492 A.2d 63, 70 n.3 (Pa.

Super. 1985) (addressing a Section 906 violation sua sponte).

The issue of whether a sentence is illegal is a question of law;
therefore, our task is to determine whether the trial court erred
as a matter of law and, in doing so, our scope of review is plenary.
Additionally, the trial court’s application of a statute is a question
of law that compels plenary review to determine whether the court
committed an error of law.

Commonwealth v. Williams, 871 A.2d 254, 262 (Pa. Super. 2005) (citations

and quotation marks omitted).

The courts of this Commonwealth have interpreted the term “convicted”

as used in Section 906 “to mean the entry of a judgment of sentence, rather

than a finding of guilt by the jury.” Jacobs, 39 A.3d at 983 (citing, inter alia,

Commonwealth v. Grekis, 601 A.2d 1284, 1295 (Pa. Super. 1992)).

In Commonwealth v. King, 234 A.3d 549 (Pa. 2020), the defendant

argued that Section 906 prohibited the trial court from imposing sentences for

both attempted murder and conspiracy to commit murder where the object of

those offenses was a single victim. King, 234 A.3d at 566-67. Our Supreme

Court found “that [the defendant] entered into one agreement with his co-

conspirator to murder [the victim] and, because he failed in his attempt to do

so, [the defendant] could not be sentenced to serve separate terms for the

inchoate crimes of conspiracy and attempt.” Id. at 568. Our Supreme Court

explained that “[b]y enacting Section 906, the General Assembly declared that

- 14 -
J-A21028-21

where a defendant tries to achieve a result – in this case, murder – but fails

to do so, he may only be punished once in the absence of distinct criminal

objectives.” Id. at 572. The King Court vacated the defendant’s consecutive

sentences for attempted murder and conspiracy to commit murder. Id.; see

also Cooke, 492 A.2d at 71-72 (vacating concurrent sentence for conspiracy

to commit robbery where defendant had also been sentenced for attempted

robbery and the two offenses were designed to commit the same crime).

Here, the trial court imposed concurrent sentences of twelve-and-a-half

to twenty-five years’ imprisonment for attempted murder and conspiracy to

commit murder. However, both crimes had the same object: to kill Kendall

Rosendary. Therefore, Appellant’s sentence for conspiracy to commit murder

is illegal because it violates 18 Pa.C.S. § 906, and it must be vacated. See

King, 234 A.3d at 572; Cooke, 492 A.2d at 71-72.

Because the trial court imposed concurrent sentences, our disposition

does not upset the trial court’s overall sentencing scheme, therefore we need

not remand. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-69 (Pa.

Super. 2010); Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super.

2006).

For these reasons, we affirm Appellant’s convictions, but vacate the

sentence for conspiracy to commit murder, and we affirm the judgment of

sentence in all other respects.

Judgment of sentence affirmed in part, and vacated in part solely as to

the sentence for conspiracy to commit murder.

- 15 -
J-A21028-21

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/19/2021

- 16 -
Circulated 10/28/2021 10:58 AM
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JAMAL ACHILLES JONES

OPINION
HAAZ, J. January 4, 2021

I. INTRODUCTION

Defendant Jamal Jones appeals from the judgment of sentence imposed on January 18,

2019 and the Order denying his post-sentence motion on June 10, 2019. Defendant's Notice of

Appeal, 10/9/20. Defendant was sentenced to twelve and one-half (12 ½) to twenty-five (25) years
. imprisonment for attempted murder and a concurrent sentence of twelve and one-half (12 ½) to
twenty-five (25) years for conspiracy to commit murder. Defendant's conviction for aggravated

assault merged with his attempted murder conviction and his conviction for conspiracy to commit

aggravated assault merged with his conspiracy to commit murder conviction. No further penalty

was imposed for the possession of an instrument of a crime conviction.

II. PROCEDURAL HISTORY

Defendant originally filed a Notice of Appeal on June 25, 2019 from the Order denying his

post-sentence motion. The trial court opinion was filed of record on October 24, 2019. The

Superior Court of Pennsylvania dismissed Defendant's direct appeal for failure to file a brief on

January 22, 2020. 1 The court received correspondence from Defendant addressed to the Clerk of

Courts asking whether Defendant's trial and appellate counsel, Francis Genovese, Esquire, had

1
The Superior Court's Order was filed of record in the trial court docket on March 5, 2020.
filed an appeal for this case. 2 The court treated this correspondence as Defendant's PCRA petition.

On March 4, 2020, the court appointed Matthew Quigg, Esquire to represent Defendant and

granted leave to file an amended PCRA petition or Finley3 letter. On July 17, 2020, Defendant

petitioned to reinstate his direct appeal rights nune pro tune pursuant to the Post-Conviction Relief

Act. After an evidentiary hearing held on September 14, 2020, Defendant's appeal rights were

reinstated nune pro tune. Order, 9/14/20. Defendant filed a new Notice of Appeal on October 9,

2020. Defendant filed a concise statement of matters complained of on appeal raising the following

issue:

1. Did the Trial Court err in denying Appellant's Post-Sentence
Motion for a Judgment of Acquittal on the charges of attempted
murder, criminal conspiracy to commit murder, and possessing
an instrument of crime?

Concise Statement, 11/3/20. Defendant raised the same issue in his original concise statement.

Concise Statement, 7/30/19. Therefore, the court refers to its October 24, 2019 opinion, attached

hereto, for discussion of the issue raised on appeal.

BY THE COURT:

RICHARD P. HAAZ, J.

Copies sent by e-mail on 1/4/21 to:
Robert Falin, Esquire
Kevin Steele, Esquire
Matthew Quigg, Esquire
Clerk of Courts
~,c.,~;~
Secretary

2
The correspondence addressed to the Clerk of Courts was dated January 16, 2020 and was filed ofrecord on January
24, 2020.
3
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988).

2
COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-46-CR-0006906-2017

v.

1842 EDA 2019
JAMAL ACHILLES JONES

OPINION

HAAZ, J. October 23, 2019

INTRODUCTION

This case arose from the shooting of Kendall Rosendary on August 8, 2017 in

Norristown, Pennsylvania. Defendant Jones and co-defendant Jahleel Davis were arrested shortly

after the shooting. Criminal complaints were filed against co-defendants Jones and Davis

charging them with attempted murder and related crimes on August 10, 2017.

On January 17, 2018, the Jones prosecution was consolidated, on motion of the

Commonwealth, with Commonwealth v. Jahleel Davis, Docket No. CP-46-CR-0006720-2017.

On December 21, 2017, Defendant Davis filed an omnibus pre-trial motion that included a

motion to suppress evidence pertaining to the prosecution against him only. Evidentiary

hearings were held on Davis' motion on October 3, 2018 and October 16, 2018. The motion was

denied by memorandum and order dated October 26, 2018.

A jury trial commenced on October 26, 2018. On November 2, 2018, Defendant Jones

was convicted by a jury of attempted murder, conspiracy to commit attempted murder,

aggravated assault, conspiracy to commit aggravated assault and possession of an instrument of a

crime. On January 18, 2019, Defendant was sentenced to twelve and one-half (12 ½) to twenty-

five (25) years imprisonment for the attempted murder conviction and a concurrent sentence of
twelve and one-half (12 ½) to twenty-five (25) years for the conspiracy to commit murder

conviction. Defendant's conviction for aggravated assault merged with his attempted murder

conviction and his conviction for conspiracy to commit aggravated assault merged with his

conspiracy to commit murder conviction. No further penalty was imposed for the possession of

an instrument of a crime conviction. Defendant appeals from his judgment of sentence.

On January 28, 2019, Defendant filed post-sentence motions for a judgment of acquittal,

reconsideration of his sentence and a new trial. The court held evidentiary hearings on these

motions on May 10, 2019 and June 3, 2019. The court denied Defendant's post-sentence

motions on June 10, 2019.

On June 25, 2019, Defendant filed a notice of appeal to the Superior Court. On June 26,

2019, the court ordered defendant to file a concise statement of errors complained of on appeal

within twenty-one (21) days pursuant to Pa.R.A.P. 1925(b). On July 30, 2019, Defendant filed

the following concise statement of errors complained of on appeal:

1. Did the Trial Court err by Denying Defendant's Post-Sentence
Motion for a-Judgment of Acquittal on the charges of Criminal
Attempt at Murder, Criminal Conspiracy to Commit Murder
and possessing an Inst[r]ument of Crime[,] for which the Jury
returned a guilty verdict?

EVIDENCE AT TRIAL

The shooting which occurred in this case was part of the aftermath of shootings which

occurred between rival groups of young men in Pottstown and Norristown. Lieutenant Kenneth

Lawless of the Norristown Police Department was involved in the investigation of shootings that

occurred in Norristown in the summer of 2017 when Jordan Scott was murdered and

TayeWynder was shot and injured. T2 139-140. Lt. Lawless testified that there were a series of

shootings in Norristown and Pottstown that were believed to be part of an ongoing Norristown

2
versus Pottstown feud. T5 1083-1085. Kendall Rosendary, the victim in this case, was an

innocent bystander in what was intended to be the shooting of a member of the rival Norristown

group in retaliation for the murder of Jordan Scott, a member of the Pottstown group.

Detective William Mitchell, Jr. was a detective with the Montgomery County District

Attorney's Office at the time of the subject events. T4 765. Detective Mitchell was involved in

the investigation surrounding the murder of Jordan Scott, also known as "Bud," which occurred

on July 6, 2017. Ibid At that time, Jordan Scott was residing with Taye Wynder in Pottstown.

T4 765-766. William Wilson and Isaiah Freeman were from Norristown. T4 766-767. Both were

convicted of the murder of Jordan Scott. T4 766. Freeman was convicted of first-degree

murder and Wilson was convicted of third-degree murder. T4 769.

Corporal Brian Graham was a police officer with the Norristown Police Department at

the time of the subject events. T3 435. On August 8, 2017, at approximately 11 :00 p.m.,

Corporal Graham was patrolling in Norristown in the 500 and 600 block of Cherry Street when

he received a report of a possible disturbance by a caller who identified herself as Chris

Williams. Ibid. Based on Ms. Williams' information, Corporal Graham sent out a dispatch about

individuals from Pottstown possibly being in Norristown to retaliate. T3 436.

Lt. Lawless and other officers were dispatched to the area of the 500, 600 and 700 blocks

of Cherry Street in Norristown, Montgomery County shortly after 11 :00 p.m. on August 8, 2017.

T2 157-158. At approximately 11 :33 p.m., while on the 600 block of Cherry Street, Lt. Lawless

heard what he thought were fireworks. T2 158-159. After exiting his car at 719 Cherry Street, a

bullet went through the trees just above his head and he realized he was hearing gunshots. Ibid.

He returned to his vehicle and saw a silver Chevy Impala "further up on the next block leaving

the scene at a high rate of speed." T2 159.

3
Lt. Lawless notified other officers that the fleeing vehicle was travelling north on Cherry

Street as he kept sight of the vehicle. T2 161. Officer Jason Hoover turned his vehicle from Elm

Street onto Cherry Street to block the path of the fleeing vehicle. Ibid. Lt. Lawless drove toward

the Impala. T2 161-162. He approached the blocked vehicle and saw three occupants of the

Impala abandon the vehicle and flee on foot. T2 162-163. The occupants appeared to be

African-American and were wearing dark hoodies, one of which had an Adidas emblem. T2

164. The occupants hopped a fence. and ran through the backyards of nearby houses. T2 162.

Police then set up a perimeter to prevent the suspects from escaping the area. T2 164-165.

Officer Hoover was in his vehicle on Swede Street near its intersection with Oak Street

when he heard gun shots. T3 319-321. Officer Hoover drove up Swede Street where it

intersected with Elm Street and turned left. T3 322. Lt. Lawless informed Officer Hoover by

radio that a silver Chevy sedan was pulling out of the area and travelling at a high rate of speed

north on Cherry Street. Ibid. Officer Hoover turned down Cherry Street to block the sliver

Chevy from leaving the area. Ibid. He observed three individuals get out of the Chevy and run

from the vehicle. T3 323. Two of the fleeing individuals were wearing dark-colored clothing,

one with a black hooded sweatshirt with a white Adidas logo on it. T3 324. The third individual

was wearing lighter-colored clothing with a grayish top. Ibid.

Lt. Lawless and other officers established a perimeter and continued pursuit of the

suspects while Officer Hoover remained behind and secured the abandoned vehicle. T3 334.

The front passenger door of the abandoned vehicle was still open and the passenger's side of the

car had bullet holes in it. Ibid. Located in the back seat of the vehicle in plain view was a black

revolver. Ibid. The revolver was a .38 Special caliber that contained fired cartridge casings in its

cylinder. T4 784. Officer Hoover located a magazine for a .40 caliber Glock pistol in the lower

4
'
pocket of the front passenger door. T3 334-335. Officer Hoover recovered a small black cell

phone on the outside of the driver's side door. T3 336.

Officer Jeffrey Portock was with the Pottstown Police Department and the Montgomery

County SW AT West team at the time of the subject events. T3 424. Officer Portock was

attached to the K9 Unit and had a canine partner with specialized training to search and track the

suspects. T3 424-425. Officer Portock was on patrol in Pottstown when he received a dispatch

to Norristown for a canine assist. T3 425. Officer Portock and his canine partner tracked the

fleeing individuals using the scents from the abandoned Chevy Impala. T3 427-433. With the

assistance of his canine partner, Officer Portock located Defendant Jones and Taron Ebo-Wilson 1

hiding underneath the back porch of a house at 837 Swede Street in Norristown in the early

morning hours of Aug~st 9, 2017. T2 170-71; T3 427-433; 425.

Defendant Jones was discovered together with Taron Ebo-Wilson underneath the back

porch of the house located at 8~ 7 Swede Street. T2 169; 170-171. Ebo-Wilson was wearing a

gray sweatshirt. T3 389. Lt. Lawless performed a pat down search of D~fendant Jones and

found the key to the abandoned Impala. T2 171-172. Defendant Jones told Lt. Lawless it was the

key to his Impala. T2 171. This key was matched to the Chevy Impala that had been abandoned

on Cherry Street. T2 171-172. A firearm was also recovered in the immediate area where

Defendant Jones and Taron Ebo-Wilson were hiding. T2 181. The firearm was a .40 caliber

Glock Model 27. T3 359.

Corporal Brian Graham located Defendant Davis in the backyard of 844 Cherry Street in

the early morning hours of August 9, 2017. T2 173; T3 435-36; T3 440. Lt. Lawless testified

1
Taron Ebo-Wilson was the third person in the Impala vehicle with Davis and Defendant and fled with Defendant.
He pied guilty to attempted murder and conspiracy to commit murder on October 12, 2018 arising from the
Rosendary shooting. Commonwealth v. Ebo-Wilson, Docket No. CP-46-CR-0006721-2017. He was sentenced to
undergo imprisonment for not less than 8 years nor more than 20 years in state prison pursuant to the negotiated plea
agreement.

5
that Davis was found next to a black hooded _sweatshirt with an Adidas emblem on it. T2 173;

Ex. C-145a. A camouflage-printed mask was also recovered in the immediate area of Defendant

Davis. T2 179-180; T3 442-443. During the investigation the following day detectives

discovered a .45 caliber handgun in a bucket near where Defendant Davis was found. T3 581-

582. The gun had eight live rounds of ammunition in it. T4 658-659.

Officer Joshua Keenan of the Norristown Police Department was at the

intersection of Marshall and Cherry Streets in Norristown when he heard gunshots. T3 384. He

received information that an individual had been shot on Cherry Street and proceeded to that

location to render aid. T3 385. Upon encountering the victim of the shooting, Kendall

Rosendary, Officer Keenan observed that he had "multiple pentrating traumatic injuries to both

his upper and lower extremities" and he was ''bleeding profusely." T3 385-387. Officer Keenan

stated he had never seen someone lose so much blood and survive. T3 387-388. No firearm or

ammunition was recovered from Rosendary. T3 437.

Lt. Lawless stayed at the site of the shooting on the 800 block of Cherry Street after Mr.

Rosendary was transported to a hospital for treatment. T2 166. He observed blood stains on the

sidewalk and multiple shell casings in the street. Ibid. There also appeared to be several strike

marks on the sidewalk where the. sidewalk had been struck by bullets. T2 176-177. Several

bullets were later extracted from strike marks in nearby fences. T2 215. Corporal Graham
-
estimated that fired cartridge casings were located approximately five (5) to ten (10) feet from

where Rosendary had collapsed on the sidewalk from his injuries. T3 439.

Kendall Rosendary was twenty-six (26) years old at the time of the shooting. T2 219.
2
He testified that he was shot fifteen times on August 8, 2017. T2 219-220. Rosendary was shot

2
The parties stipulated that the victim was treated at Penn Presbyterian Hospital from August 9, 2017 to September
13, 2017 where he was treated for 13 gunshot wounds, seven of which were entry wounds. It was further stipulated

6
while walking on Cherry Street near the location of a playground and park at the intersection of

Cherry and Oak Streets. T2 220. Rosendary heard people yelling at him and he tried to look

back. T2 221. He saw a gun, tried to run and then realized he had been shot. T2 257. Rosendary

could not identify who shot him. T2 221. He continued to get shot after he fell to the ground. T2

222. Rosendary stated that he was not armed and did not fire a gun at any point. T2 224.

Rosendary was transported to Penn Presbyterian Hospital where he underwent numerous

surgeries before he was discharged the next month to a rehabilitation facility. T2 224-225; T5

1005. He then spent several more months at the rehabilitation facility. T2 225-226. Rosendary

was still having regular appointments for medical treatment approximately once every other

month at the time of trial and will likely require additional surgeries. T2 247. Rosendary stated

that he suffered from guns-shot wounds in almost every major area of his body. T2 226. As a

result of the injuries he suffered on August 8, 2017, he can longer run or perfonn regular

exercise, and must use a colostomy bag. T2 227.

Rosendary was intubated while he was a patient at Penn Presbyterian Hospital. T2 228.

On August 14, 2017, after the intubation tube was removed from Rosendary's throat, he gave a

statement to Detectives David Mazza and Greg Henry while still in the hospital. T2 228-229.

Detective Greg Henry provided a summary of Rosendary's statement that Rosendary heard one

of the males call him a "bitch." T2 228-233. According to their s_ummary, he told detectives he

saw three unknown males approach him and start shooting. T2 231-232. At trial, he recalled

thinking that it was actually more than three individuals. T2 232-233. He told detectives the

individuals shot him several more times as he was lying on the ground. T2 233. He stated the

individuals were black males, in their mid to late teens, and that they were all anned with

that the victim had multiple surgeries over the course of his commitment at the hospital and suffered serious bodily
injury. TS 1005.

7
handguns. T2 234. The detectives' summary stated that Rosendary told them that two of the

shooters were wearing dark hooded sweatshirts, though Rosendary could not recall telling that to

detectives. Ibid

On September 7, 2017, Rosendary gave a second statement to Detective Mazza and

Detective Steven Sowell. T2 235-237. Rosendary told detectives that on August 8, 2017, on the

800 block of Cherry Street, three men got out of a light-colored car and all three had guns and

shot him. T2 239-240. He said he was shot in his shoulder, stomach, arm, both thighs, hip,

knee, butt and foot. T2 241.

Rosendary told detectives that the shooters were young black males. T2 241-242. He

described the car that they were in as "light, like tan." T2 242. He said that he did not know

why they shot him and that he did not know them. Ibid. While in the hospital, Rosendary

provided police with a DNA sample. T2 246.

Detective Dirk Boughter was with the Montgomery County Detective Bureau in the

Major Crimes Unit at the time of the subject events. T3 510-511. The parties stipulated that

Detective Boughter qualified as an "expert in crime scene analysis." T3 511. Detective

Boughter was called to analyze the crime scene during the early morning hours of August 9,

2017. T3 513.

Detective Boughter testified that nine 9 millimeter fired cartridge casings, nine .40 caliber

fired cartridge casings and five .45 caliber fired cartridge casings were recovered from the crime

scene. T3 530. Five bullet fragments were also recovered from the crime scene. T3 531. The

.40 caliber cartridge casings matched the Glock 27 located near Defendant Jones and Ebo-

Wilson when they were apprehended. T4 665. However, detectives later learned that the .45

caliber handgun recovered near Defendant Davis in the backyard of 844 Cherry Street was not

8

.
the firearm that had fired the .45 caliber fired cartridge casings discovered at the scene of the

shooting. T3 582.

During his investigation, Detective Boughter discovered two strike marks on a white

Mazda SUV parked on the west side of Cherry Street just north of where the victim was shot. T3

538-540. There was also a bullet fragment between the Mazda's front wheel and the curb "as if

it had exited out of the hood and down." Ibid. There were strike marks and a recovered bullet

fragment on the fence post of the playground behind the area where the victim was found. T3

545; 548. No strike marks, indicative of return fire, were discovered on the opposite side of the

street. T3 569-570. There were also three strike marks observed on the passenger side of the

Chevy Impala. T3 571.

As part of his investigation, Detective Boughter collected twenty-three (23) fired

cartridge casings from the scene as well as multiple bullet fragments. T3 514-515. He testified

that the pattern of fired cartridge casings was consistent with how semi-automatic weapons expel

cartridge casings to the side of the weapon. T3 524-525; 529. Detective Boughter testified that

the pattern of the fired cartridge casings was consistent with the shooter having been in motion

while firing, specifically towards the direction of the victim and his direction of travel as

evidenced by the blood trail on the sidewalk. T3 565-569; T3 436-43 7. The fired cartridge

casings were inconsistent with having been fired or emptied from a revolver. T3 525.

Detective Boughter performed DNA swabs on the recovered firearms. T4 650-651. DNA

swabs were also performed on the .38 caliber revolver recovered from the Chevy Impala. TS

986. The parties stipulated that the DNA swabs taken from the trigger of the .40 caliber Glock 27

found near Defendant Jones and Ebo-Wilson contained a mixture from at least two individuals

and that it was greater than one million (1,000,000) times more likely that Taron Ebo-Wilson

9
was one of those individuals. TS. 983-987; Ex. C-162; C-164. Further, the DNA swabs taken

from the grip of the .38 Special caliber revolver found in the back of Jones' Chevy Impala

contained a mixture from at least three individuals and was nineteen thousand six hundred sixty

(19,660) times more likely that Defendant Davis was one of those individuals. Ibid.

Detective Eric Nelson was a detective with the Montgomery County Detective Bureau at

the time of the subject events. T4 771. Detective Nelson was qualified to offer expert opinions

in the field of forensic firearms identification and analysis. T4 774. Detective Nelson testified

that some of the bullets and bullet fragments recovered at the crime scene had microscopic

characteristics that were consistent with having been fired from a .40 caliber Glock 27 like the

one recovered near Ebo-Wilson and Defendant Jones. T4 795-797. Other bullets and bullet

fragments that were recovered were consistent with having been fired from a .3 8 Special caliber

revolver like the one recovered in the back of the Chevy Impala. T4 800-801.

Detective Edward Schikel of the Montgomery County Detective Bureau was qualifiFd to

offer expert opinions in the field of forensic crime scene analysis. T4 687. Detective Schikel

testified that the pattern of fired cartridge casings and strike marks observed at the crime scene

was consistent with shots being fired from the street in the direction of the sidewalk where the

victim was found. T4 699-700. He also observed strike marks on the passenger's side of the

Chevy Impala. T4 703-704.

Detective Schikel executed a search warrant for the Chevy Impala. T4 702; Ex. C-139.

Detective Schikel found identifications of Taron Ebo-Wilson and an individual named Clay

Jones within the vehicle. T4 707-708. Detective Schikel discovered several live .45 caliber

rounds as well as a .40 caliber magazine for a Glock pistol inside the vehicle. T4 715-716; 718.

A halloween mask was also recovered from inside the vehicle. T4 706.

IO
Albert Lattanzi worked on this case as a forensic scientist with the Pennsylvania State

Police in the Harrisburg Regional Crime Lab. T3 401-402. He was qualified as an expert in the

field of forensic testing for gunshot and gunpowder residue. T3 404. Mr. Lattanzi performed

gunshot residue and gunpowder testing on samples collected from the black Adidas sweatshirt

found near Defendant Davis at the time of Davis' apprehension. T3 403; T3 410-411; T3 442.

Mr. Lattanzi testified to the presence of gunshot residue on the black Adidas sweatshirt,

consistent with firing a gun. T3 4 I 3-416.

Officer Andrew Licwinko was a police officer with the Pottstown Police Department at

the time of the subject events. T5 912-913. Officer Licwinko testified that he had previously

observed Defendant Davis and Defendant Jones in the Pottstown area. T5 923; 928. In

particular, he had seen them associating with Ahbayah Davila and other individuals who referred

to themselves as members of a group known as ATM. T5 923; 928. He testified that this group

changed its name to BGB, which stood for "Bud Gang Bitches," after the murder of Jordan

Scott. T5 923-924; I 046. Officer Licwinko personally observed some of the individuals with

whom Defendant Davis associated posting their membership in the group on social media. Ibid.

Others had "BGB" tattooed on their bodies. Ibid. He saw Defendant Jones at the preliminary

hearing of Ahbayah Davila on an unrelated matter. T5 925.

Detective Gregory Henry was a detective with the Montgomery County Detective Bureau

at the time of the subject events. T5 1006. Detective Henry reviewed the cell phone extractions

from the phones recovered outside the driver's side door of the Chevy Impala as well as in the

center console of the Chevy Impala. T5 1013-14. He also reviewed the Facebook accounts of
,

Jamal Jones and Lee! Stacks. 3 T5 1014. On Defendant Davis' Facebook account under the

3
Defendant Davis was saved in Defendant Jones' contacts as "Lee]," and Defendant Jones was saved in Defendant
Davis' phone as "Mal." TS 1017-1018.

11
name "Leel Stacks," there were several images that identified him as being a member of BGB.

TS 1043. The cell phone found outside the Chevy Impala contained photos and videos of

Defendant Jones, indicating the cell phone belonged to him. TS 1014. In addition, a phone

number associated with that cell phone was the same phone number that Defendant Jones

provided police upon his arrest. TS 10i4-101 S.

Detective Henry reviewed the extraction from a third cell phone, an LG phone, that was

physically removed from Defendant Davis upon his arrest. TS l 0 15. .The number associated

with this phone was nearly the same as the one Defendant Davis provided with some of the

numbers transposed in a slightly different order. TS 1016. This phone appeared to be linked to

the Lee! Stacks Facebook account. Ibid. There were several calls between Defendant Jones' and

Defendant Davis' phones, the last call being on the date of the shooting around 9:00 p.m. TS

1017.

The cell phones contained numerous videos and images that depicted Jones and Davis in

possession of firearms. TS 1020-1030; 1033-1038. Some of these included images of fireanns

that matched the caliber of fired cartridge casings recovered at the scene of the Rosendary

shooting. 1067-1073. Some of these images were dated shortly before the shooting and at least

one appeared to have been taken the same day. TS 1025-1026; 1032-103 3. In one video

extracted from Defendant Davis' phone, Defendant Davis identifies himself as being part of

BGB and repeatedly says "gang gang" while another individual is waving a gun at the camera.

TS 1029-1030. Images from Defendant Davis' phone, time stamped August 7, 2017, the day

before the shooting, showed multiple fireanns on a person's lap. T5 1024-1026. One of the

images from Defendant Davis' phone, time stamped on the date of the shooting, showed a

revolver that resembled the revolver that was recovered from the backseat of Defendant Jones'

12
Impala. TS 1033; 1079. With respect to Defendant Jones' phone, there were a senes of

photographs showing firearms on an individual's lap, one of them including an extended

magazine. TS 1033-35. Other images showed Defendant Jones with Ebo-Wilson. TS 1035. One

video retrieved from Defendant Jones' phone appears to be taken in Defendant Jones' Impala,

showing Ebo-Wilson and Defendant Jones, who referenced the word "gang." TS 1036-1037.

There were a number of Facebook posts mourning the death of Jordan Scott. TS l 044-

1045. One of Defendant Davis' posts, created on July 7, 2017, the day after Jordan Scott was

murdered, expressed a desire to get revenge for Scott's death. Ibid. A post on Jordan Scott's

Facebook page from Defendant Davis states "Death is never a option or planned but revenge is."

Ibid. Two days later, Defendant Davis posted "RS, Bud gone, so the love is gone ... its war

now." TS 1048. On July 18, 2017, Defendant Davis posted "Losing Bud turned me to a

monster. The thought of losing another made me grind harder." TS 1047. On August 7, 2017, the

day before Rosendary was shot, Defendant Davis and one "BOB Tone" message each other

through Facebook. TS 1145-1147. BOB Tone writes to Defendant Davis saying "Niggas who

kill Bud, his people" and Defendant Davis responds "Yeah, nigga wanna beef, grab bigger

guns." TS 1146-4 7.

Felicia Mickie was a Montgomery County Juvenile Probation Officer who was

supervising Defendant Davis in the summer of 2016. T3 492. Dur.ing her supervision of

Defendant Davis, she learned that he associated with a group known as "ATM." T3 492-493.

She also had personal knowledge of other individuals who identified _themselves as members of

ATM, which stood for "Addicted to Money." T3 493; 508. Defendant Davis and the other

members of this group were all from Pottstown. T3 494. Officer Mickie stated ATM changed

· 13
its name to BOB after the murder of Jordan Scott. Ibid Officer Mickie had no knowledge of

Defendant Jones and whether he was a member of this group. T3 508-509.

Pursuant to her supervision, she obtained possession of Defendant Davis' cell phone. T3

493. Defendant Davis' messages were to and from individuals identified as members or

associates of ATM. T3 503. Defendant Davis' Facebook messages with Nathaniel Howard, also

known as Coke Boy Montana, stated "Get the drop. We can both slide. You know how I rock.

Mask up. Let's do it right." T3 503-505. Howard's response stated "When they mask up, they

coming for you(r] ice. When they bare face, they coming for your life." T3 505-506. Defendant

Davis responded, in part, by stating he had been "itching to catch another body." T3 506.

Defendant Davis testified at trial. TS 1088-1165. He testified that he was in Norristown

on August 8, 2017 to meet a girl named Bree. TS 1089. After searching for Bree unsuccessfully,

Defendant Davis ran into Defendant Jones and Taron Ebo-Wilson. TS 1090. They attended a

nearby party where they got into a confrontation after Defendant Davis said he was from

Pottstown. TS 1091. All three decided to leave the party. Ibid. Defendant Jones walked away

first, and Defendant Davis and Ebo-Wilson followed. TS 1098. Defendant Jones' car was their

means of transportation out of Norristown. Ibid.

After walking down the street for a few minutes, they noticed a group of people

congregating and coming down the street toward them. TS 1091-1092. They continued to walk

down the street, feeling nervous and scared, considering their prior confrontation at the party. TS

I 092. Defendant Davis testified as follows: "And when we walked, somebody said, 'Yo.' And

when we turned around, in the motion of us turning around, we seen somebody raising their

gun." Ibid. He was unable to identify the person with the gun as Rosendary. TS 1120.

Defendant Davis started running. TS 1092; 1099-1100. After taking two or three steps, he heard

14
a gunshot. TS 1099-1100. After a pause, Defendant Davis removed a gun tucked underneath his

jacket near his hip and began shooting in the direction he heard gunfire. TS 1092; 1100.

Defendant Davis proceeded to run and shoot back at the same time. TS 1092. Defendant

Davis felt a bullet whiz past him while he ducked his head and continued shooting. Ibid.

Defendant Davis, Jones, and Ebo-Wilson reached Defendant Jones' car and Jones drove them

away from the shooting scene. TS 1092-1093. Police vehicles cut them off and they all

abandoned Jones' car and fled on foot. TS 1093. Defendant Davis explained that he rari because

he was just involved in a shooting, had a gun on him, and was afraid of being arrested. Ibid.

Defendant Davis initially gave the police a different account of the events that transpired that

night, acknowledging that he earlier lied to the police. TS 1102-1103. He earlier told police he

had nothing to do with the shootings, even though he admitted at trial he shot a firearm multiple

times. TS 1127-1128. Defendant Davis said that he did not recognize Rosendary in the

courtroom, and did not know who he was when firing towards him. TS 1103-04. He had seen

Rosendary in jail a few times, but never knew who he was. TS 1104.

Defendant Davis explained the Norristown versus Pottstown feud. TS 1104-1107. The

feud involved two individuals, one of them being Jordan Scott, fighting over a female whom

Defendant Davis did not personally know. TS 1105-1106. He testified Jordan Scott was not his

only good friend who died that summer. TS 1104-1105. He testified that he was the only one

with a connection to Jordan Scott and Defendant Jones did not know Jordan Scott to his

knowledge. TS 1107. Defendant Davis further testified he believed that neither Defendant Jones

nor Taron Ebo-Wilson had a history involving illegal firearms, unlike himself. TS 1109-1110.

He testified his inflammatory remarks with respect to his conversation with BGB Tone and his

I5
statements about "masking up" referenced music he listens to. TS 1108-1109. Defendant Jones

did not testify at trial.

LEGAL ANALYSIS

"A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain

a conviction on a particular charge, and is granted only in cases in which the Commonwealth has

failed to carry its burden regarding that charge." Commonwealth v. Fitzpatrick, 159 A.3d 562,

567 (Pa. Super. 2017) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.

Super. 2008). The Commonwealth's burden is as follows:

The standard we apply in 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 element of the crime beyond a
reasonable doubt ... Any doubts regarding a defendant's guilt may
be resolved by the fact-finder unless the evidence is so weak and
inconclusive that a as a matter of law no probability of fact may be
drawn from the combined circumstances.

S Id. The Commonwealth may rely on wholly circumstantial evidence to prove each element of the
r1.~,
1(~1 offense. Id.
N
~1
1 I. Conspiracy to Commit Murder

"To sustain a conviction for criminal conspiracy, the Commonwealth must establish the

defendant: I) entered into an agreement to commit or aid in an unlawful act with another person

or persons; 2) with a shared criminal intent; and 3) an overt act was done in furtherance of the

conspiracy." Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005)). The agreement to commit a

criminal act need not be supported by an "explicit or formal agreement." Commonwealth v.

Johnson, 719 A.2d 778, 785 (Pa. Super. 1998) (quoting Commonwealth v. Kennedy, 453 A.2d

927, 929-30 (Pa. 1982)). Rather, "[a]n agreement can be inferred from a variety of circumstances

16
including, but not limited to, the relation between the parties, knowledge of and participation in

the crime, and the circumstances and conduct of the parties surrounding the criminal episode."
'
Devine, 26 A.3d at 1147 (quoting Jones, 874 A.2d at 121-22); See also Commonwealth v.

Hennigan,- 753 A.2d 245, 253 (Pa. Super. 2000) ("Proof of conspiracy is almost always extracted

from circumstantial evidence.").

The evidence at trial established that Defendant Jones drove Davis and Ebo-Wilson from the

scene of the shooting on August 8. 2017. Face book posts, Facebook messages, videos, and

images obtained from co-defendant Davis' cell phone included messages that Davis was seeking

revenge for Jordan Scott's murder by the rival Norristown group and that he was "itching to

catch another body." T3 506. The videos and images also depicted Jones and Davis in possession

of illegal firearms, at least one of which resembled the revolver used to shoot Kendall

Rosendary.

Defendant Jones was found with the keys to his Impala when he was captured after the

shooting. Defendant Davis testified that the three individuals were relying on Defendant's

Impala as their means of leaving Norristown that night. A .38 Special caliber firearm with fired

cartridge casings in its cylinder was located in Jones' vehicle after the shooting. A .40 caliber

Glock pistol magazine and live .45 caliber rounds were also located in Jones' vehicle after the

shooting. A ballistics expert testified that bullets and bullet fragments recovered at the crime

scene were consistent with having been fired from a .40 caliber Glock 27 like the one recovered

near Defendant Jones and Ebo-Wilson when the two men were found after the shooting.

Additionally, bullets and bullet fragments recovered from the scene were consistent with having

been fired from a .38 caliber revolver like the one recovered in the back of Jones' Chevy Impala.

17
The evidence at trial supported the jury's verdict that Jones entered into an agreement

with Davis and Ebo-Wilson to drive to Norristown and shoot a person in retaliation for the

Jordan Scott killing. There were several phone calls back and forth between Defendant Jones and

Davis, including one on the night of the shooting. Jones drove the fleeing perpetrators from the

shooting scene to evade apprehension. "[T]he driver of a 'get away' car can be found guilty as [a

co-conspirator] if it reasonable to infer that he was aware of the actual perpetrator's intention."

See Commonwealth v. Brown, 505 A.2d 295, 297 (Pa. Super. 1986) (alteration in original)

· (quoting Commonwealth v. Wright, 344 A.2d 512, 515 (Pa. Super. 197 5)) (finding sufficient

evidence for a conspiracy to commit theft where appellant drove co-conspirator from victim's

home); See also Commonwealth v. Davalos, 779 A.2d 1190, 1 I 93-94 (Pa. Super. 2001)

(upholding criminal conspiracy conviction where appellant drove co-conspirator to and from
'
scene of shooting, was present during the shooting, and -fled from police). See Commonwealth v.

Marquez, 980 A.2d 145, 150 (Pa. Super. 2009) ("This Court has repeatedly held that flight, along

with circumstantial evidence, supports the inference of criminal conspiracy.").

An "overt act need not be committed by the defendant; it need only be committed by a co-

conspirator." Johnson, 719 A.2d at 784. Defendant Davis admitted to shooting the victim
i
multiple times. Defendant Jones is liable for the acts of his co-conspirators. See Hennigan, 753

A.2d at 254 (sustaining appellant's conspiracy conviction where co-conspirator's overt act of

selling crack cocaine to an undercover officer was imputed to appellant). As will be discussed in

the next section, the evidence clearly established that Defendant Davis attempted to commit

murder.

I8
2. Attempted Murder

"A person commits an attempt when, with intent to commit a specific crime, he does any

act which constitutes a substantial step toward the commission of that crime." 18 Pa. C.S. §

90l(a). For an attempted murder, the Commonwealth must prove the defendant's "specific intent

to kill." Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (quoting Commonwealth

v. Geathers, 84 7 A.2d 730, 734 (Pa. Super. 2004)). "[I]f a person takes a substantial step toward

the commission of a killing, with the specific intent in mind to commit such an act, he may be

convicted of attempted murder." Id. (quoting In re R.D., 44 A.3d 657, 678 (Pa. Super. 2012)).

Furthermore, it is well established by the Supreme Court of Pennsylvania "that '[t]he use of a

deadly weapon on a vital part of the body is sufficient to establish the specific intent to kill.'" Id.

(quoting Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007)); See Commonwealth v.

Montalvo, 956 A.2d 926, 932 (Pa. 2008) ("Specific intent to kill can be established through

circumstantial evidence ... ").

DNA testing established the extremely high likelihood of the culpability of Jones, Ebo-

Wilson and Davis. The parties stipulated that that the DNA swabs taken from the trigger of the

.40 caliber Glock 27 found near Defendant Jones and Ebo-Wilson contained a mixture from at

least two individuals and that it was greater than one million (1,000,000) times more likely that

Ebo-Wilson was one of those individuals. Further, the DNA swabs taken from the grip of the .3 8

Special caliber revolver found in the back of Jones' Impala contained a mixture from at least

three individuals and that it was nineteen thousand six hundred sixty (19,660) times more likely

that Defendant Davis was one of those individuals. The recovery of the firearms, shell casings,

and DNA evidence established that Ebo-Wilson and Davis possessed firearms which were used

to shoot Kendall Rosendary multiple times.

19
Evidence of Davis' Facebook posts and messages seeking revenge for Jordan Scott's death

provided further evidence of Defendant Davis' specific intent to kill. See Commonwealth v.

Cross, 331 A.2d 813, 814-15 (Pa. Super. 1974) (finding that evidence of defendant's "long

standing feud" with victim's relative and verbal statement to victim prior to shooting was

sufficient to establish intent); See also Commonwealth v. Predmore, 199 A.3d 925, 932 (Pa.

Super. 2018). Here, the Commonwealth provided compelling evidence regarding Defendant

Davis' specific intent to seek revenge for Jordan Scott's murder. After Scott's death, Defendant

Davis wrote a series of posts on Scott's Facebook page stating revenge is planned, declaring war,

and calling himself a monster. The day after Scott's death, Davis posted "Death is never a

option or planned but revenge is." TS 1044-1045. Two days later, Davis also posted "RS, Bud

gone, so the love is gone ... its war now." TS 1048. The day before the Rosendary shooting, Davis

messaged another BGB member stating "Yeah, nigga wanna beef, grab bigger guns." TS 1146-

4 7. Davis' Face book postings and messages provided persuasive evidence of his intent to seek
~'
r;; revenge for his frien_d's death. See Commonwealth v. Donton, 654 A.2d 580, 585 (Pa. Super.
~,
N 1995) (finding intent where appellant expressed his desire to kill his estranged wife for leaving

~) him through statements made to his son and letters written to parents describing his motive).

1;) Moreover, "where evidence exists that a defendant committed a crime, knew he was wanted, and
•?r
/ fled or concealed himself, such evidence is admissible to establish consciousness of guilt."
C)
,J\ Commonwealth v. Johnson, 910 A. 2d 60, 65-66 (Pa. Super. 2006) (finding that trial court did
/
2
~/ not abuse its discretion in admitting evidence of defendant's flight from arresting officer).

.J("' Victim Rosendary was treated for 13 gunshot wounds, seven of which were entry

wounds, showing Defendant's specific intent to kill. Rosendary was shot in his stomach, a vital

area of his body, causing him to now need a colostomy bag. See Commonwealth v. Robertson,

20
874 A.2d 1200, 1207 (Pa. Super. 2005) (stating that a layperson can conclude that the stomach is

a vital area of the body). Rosendary was shot several more times as he was lying defenseless on

the ground.

The evidence established Davis, Jones, and Ebo-Wilson traveled from Pottstown to

Norristown with loaded weapons to seek revenge for the Jordan Scott killing. The jury rejected

Defendant Davis' testimony that shooting Rosendary was justified. The evidence supported the

jury's verdict that Defendant Davis had a specific intent to kill Kendall Rosendary.

3. Possession of Instrument of Crime

"To sustain a conviction for [possession of an instrument of crime), the Commonwealth"

must establish that the Defendant "(1) possessed an instrument of crime, (2) with intent to

employ it criminally." Commonwealth v. Miller, 172 A.3d 632, 642 (Pa. Super.2017); See 18 Pa.

C.S. § 907(a). An "instrument of crime" includes "[a]nything used for criminal purposes and

possessed by the actor under circumstances not manifestly appropriate for lawful uses it may

have." 18 Pa. C.S. § 907( d). This includes an object that "is regularly used by criminals," such as

a gun. Commonwealth v. Rios, 371 A.2d 937,941 (Pa. Super. 1977).

"All co-conspirators are responsible for actions undertaken in furtherance of the conspiracy

regardless of their individual knowledge of such actions and regardless of which member of the

conspiracy undertook the action." See Commonwealth v. Galindes, 786 A.2d 1004, 1011 (Pa.

Super. 2001) (quoting Commonwealth v. Hannibal, 753 A.2d 1265, 1274 (Pa. 2000)) (sustaining

weapons convictions where firearms were used in furtherance of a burglary). Defendant Davis

admitted at trial of shooting a firearm towards Rosendary. As a co-conspirator, Davis'

possession of an instrument of crime is imputed to Defendant Jones.

21
Constructive possession of an instrument of crime can be shown through "the intent and the

ability to control the item" and at a minimum, "the evidence must show that the defendant knew

of the existence of the item." Commonwealth v. Gladden, 665 A.2d 1201, 1206-07 (Pa. Super.

1995) (quoting Commonwealth v. Nelson, 582 A.2d 1115, 1119 (Pa. Super. 1990)). "[O]ur

Supreme Court has long held that an 'appellant's use of a loaded gun on his victim is more than

sufficient to establish his guilt of possession of an instrument of crime."' Commonwealth v.

Santiago, 980 A.2d 659, 662 (Pa. Super. 2009) (quoting Commonwealth v. McNair, 603 A.2d

l O14, 1017 (Pa. 1992)). Furthermore, "possession may also be proved by circumstantial

evidence." Id. at 1207. Photographs from Defendant's phone before the shooting showed images

of Defenoant in possession of firearms and an extended magazine. A Glock 27 was found near

Defendant Jones when he was arrested and a revolver was found in his car after the shooting.

The jury's conviction for possession of an instrument of crime is supported by the evidence of

record.

CONCLUSION

For the foregoing reasons, the court respectfully recommends that Defendant's judgment

of sentence should be AFFIRMED.

J.
. Co~ie~- sept on 10/23/19 to:
-Kevin Steele, Esquire
.•Robert.:i.'a1·;·n. :i.'.qm1-trp.
- - -~ .... o/,"'L.7.)"'(U'.i~ "".z ..... .r, '- ...
,.

Francis J. Genovese Esquire
s~;f;,ennsylvania

Judicial Secretary

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5128124. Public record. Not legal advice.