J-S29045-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DOMENICK WASHINGTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 372 EDA 2017

Appeal from the Judgment of Sentence December 16, 2016

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

No(s): CP-51-CR-0010126-2014

BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 22, 2018

Appellant, Domenick Washington, appeals from the judgment of 

sentence entered in the Court of Common Pleas of Philadelphia County after 

a jury found him guilty of aggravated assault, criminal conspiracy, and two 

violations of the Uniform Firearms Act (“VUFA”).1 Herein, Appellant challenges 

the trial court’s denial of his motion to dismiss under Pa.R.Crim.P. 600, the 

sufficiency and weight of the evidence to sustain his convictions, and the 

discretionary aspects of his sentence. We affirm.

The trial court sets forth the facts and procedural history, as follows:

On June 9, 20014, Clarence Watts drove with his cousin, Francis 

Watts, to the 3300 block of Reese Street in the morning hours 

shortly before 6:00 a.m. to purchase narcotics. He parked a blue 

Dodge Caravan midway down the block on the west side of Reese 

Street, approximately three car lengths before the corner. 

Clarence was familiar with the area and knew that narcotics are 

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1 18 Pa.C.S.A. §§ 2702, 903, 6106 and 6108, respectively.
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sold at the nearby intersection of 5th Street and Glenwood Avenue 

at all times, even at 6:00 a.m. Together, Clarence and Francis 

walked southbound and turned left at the first corner onto 

Cornwall Street.

While walking, individuals in a vehicle pulled up to Francis and 

Clarence on Cornwall Street. These individuals engaged Clarence 

and Francis in conversation for the purchase of narcotics. Francis 

supplied them with items, alleged narcotics, which he and 

Clarence knew were fake in nature. As Francis was handing over 

these items in exchange for $40 United State Currency to the men 

in the vehicle, Clarence observed a Hispanic male wearing a gray 

hooded sweatshirt. The Hispanic male was standing with two to 

three other Hispanic males on the corner at the intersection of 

Cornwall Street and 5th Street. These men were located up the 

street from Clarence, and looking back at Clarence and Francis 

conducting the above transaction.

Clarence became concerned that Francis’ alleged drug transaction 

bothered the Hispanic males on the block. He believed that the 

males considered the area to be their exclusive narcotics sales 

territory. As a result of that concern, Clarence approached the 

Hispanic male who had been looking at him and Francis in an 

attempt to distract that individual. Francis asked him, “[y]o, 

where the powder at?” The Hispanic male replied, “[U]p the block” 

and pointed at Defendant [hereinafter “Appellant”], Domenick 

Washington, who was standing at the intersection of 5th Street 

and Glenwood Avenue.

Appellant was standing on the corner beside a black truck that 

was parked up on the sidewalk of 5th Street as Clarence 

approached him and asked him if he had narcotics. Both males 

were “looking each other up and down” and “sizing each other 

up,” upon the initial inquiry. Appellant then opened the passenger 

side door of the black truck. At that point, Clarence observed 

Appellant place a gun inside the backseat area. Appellant 

resumed conversation with Clarence afterward. They were facing 

each other from four feet apart throughout the entire interaction. 

At some point during the conversation between Clarence and 

Appellant, Francis caught up to them on the corner.

The conversation between Clarence and Appellant abruptly ended 

when Clarence noticed three Hispanic males running up 5th Street 

toward him and Francis. Clarence instantly recognized in the 
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group the Hispanic male who had directed him to Appellant for 

drugs, based on the gray sweatpants and hooded sweatshirt he 

was wearing. Immediately, Clarence instructed Francis to flee and 

he, too, began to run. In explaining why he ran, Clarence testified 

that he thought that Francis had sold the fake substances to one 

of the individuals who later realized that it was phony in nature 

and assembled the group to retaliate against them.

While running, Francis and Clarence rounded the corner of 5th

Street and Glenwood Avenue and immediately turned left onto 

Reese Street, where Francis lagged behind Clarence as they ran 

down the street. Francis stopped at the passenger side of their 

blue Caravan and called out to Clarence to retreat to it. However, 

Clarence had already passed the vehicle by that time and did not

follow the instruction. Appellant then arrived onto Reese Street 

and shouted out to Clarence and Francis, “Halt,” as he gave chase. 

Francis stood in place upon Appellant’s demand and Clarence 

immediately turned around and looked in the direction of 

Appellant. At this time he observed Appellant holding a gun. 

Appellant was pointing the gun in the direction of Clarence and 

Francis as he approached them. As Francis began walking towards 

Appellant, Clarence also walked toward Appellant to convince him 

they had not done anything wrong. At the same time, Clarence 

attempted to convince Francis that they should flee in the direction 

away from Appellant.

Clarence testified that while face-to-face with Appellant on the 

street, he tried to calm Appellant down. At some point during the 

confrontation, Francis ultimately indicated to Clarence that he was 

prepared to flee. Clarence instructed Francis to run, at which point 

they both proceeded to run southbound on Reese toward Cornwall 

Street and away from Appellant. As Clarence neared the corner 

ahead, he looked back at Francis and Appellant, who was running 

across the street from, and behind, Francis. Clarence last 

observed Francis running on the pavement adjacent to the 

passenger side of the Caravan and Appellant starting to cross the 

street and proceeding toward Francis. While continuing to run, 

Clarence then heard a gunshot sound from behind him. Just 

seconds after the first shot was fired, Clarence turned the corner 

at the intersection, where he stopped and heard the sound of 

several more gunshots.

At approximately 6:00 a.m., Police Officer Kyle Cross responded 

to a radio call for a shooting. Three minutes later the officer 
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arrived on the scene and observed an individual identified as 

Francis Watts slumped into the passenger side door of the blue 

Caravan on the west side of Reese Street. Francis was leaning 

into the vehicle from the sidewalk and his legs were bleeding onto 

the ground. Officer Cross immediately identified gunshot wounds 

to Francis’ legs, and Francis was subsequently transported to 

Temple University Hospital.

Francis was hospitalized for two days to treat multiple gunshot 

wounds. Specifically, Francis suffered three gunshot wounds, one 

to his right calf, another to his right thigh, and one to his left leg. 

The Commonwealth and Appellant stipulated that Francis 

sustained six wounds in total, two entry and exit wounds each to 

his right leg, and an entry and exit wound to his left leg. Francis’ 

injuries were sufficiently serious that he was advised to continually 

follow up with physical therapy, provided a home health nurse aid 

to care for his wounds, and was taught how to clean and dress his 

gunshot wounds.

On the day of the shooting, while processing the crime scene, 

police recovered two sets of fired cartridge cases (“FCCs”) on each 

side of Reese Street. The first set of FCCs was three brass nine 

(9) millimeter FCCs that police located on the east sidewalk in 

front of 3331 North Reese Street. The second set was located on 

the west side of Reese Street, where police found two brass nine 

(9) millimeter FCCs and one silver FCC. The second set was 

recovered from the sidewalk on the passenger side of the blue 

Dodge Caravan parked in front of 3336 North Reese Street. Also, 

police recovered thirteen clear Ziploc packets [of] alleged crack 

cocaine from the ground in front of the passenger side of the 

Caravan. Those packets of alleged crack cocaine later tested 

negative for the presence of a controlled substance.

On July 3, 2014, Clarence gave a statement to detectives and 

identified Appellant as the shooter by circling Appellant’s photo in 

a photo array. Clarence later explained that he recognized 

Appellant in the photo array based on his mutual eye contact with 

Appellant and his face-to-face observation of him on the day of 

the shooting. Clarence also recalled that Appellant had braids in 

his hair, as depicted in the photo array of Appellant’s image shown 

at trial.

Based upon Clarence’s positive identification of Appellant, police 

conducted a records search of Appellant’s name. They ascertained 
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Appellant lived at 3340 N. 5th Street, Apartment Three. 

Subsequently, police applied for a search warrant for the address 

of 3340 North 5th Street, Apartment Three. The property is 

located at the intersection of Glenwood Avenue and 5th Street, 

approximately one block around the corner from where the 

shooting occurred. On July 9, 2014, police executed the warrant 

and located Appellant inside the apartment on the third floor.

Police recovered from 3340 North 5th Street, Apartment Three,

two pieces of mail and two envelopes addressed to Appellant as 

the recipient at that location,[fn] two pairs of sneakers, one 

Newport cigarette box containing nine pills that were later 

determined to be a non-controlled prescription item, and thirtyfive Ziploc packets containing a substance that later tested 

positive for cocaine. Although no firearm was found in the 

apartment, police recovered from the bedroom one .9 millimeter 

bullet live round. Appellant was arrested on location. At trial, 

both parties stipulated that Appellant did not have a valid license 

to carry a firearm on the date of the shooting.

[fn] The location of 3340 North 5th Street was on both pieces 

of mail but only one piece was specifically addressed to the 

third floor of that property.

At trial, a video that captured the crime scene at the time of the 

shooting was played to both the jury and Clarence Watts. 

Clarence again positively identified Appellant as one of the 

shooters.[fn] The video clearly showed two individuals with arms 

extended with what appeared to be weapons pointed. Clarence 

testified consistent with the video images that were shown to the 

jury. He specifically identified Appellant in the video as the 

individual, extending his arm with a gun in hand on the west side 

of the street, who shot Francis. Clarence further affirmed that the 

person he identified as Appellant in the video was the same person 

he had [approached] about the purchase of narcotics at 5th and 

Glenwood, and the individual who had subsequently confronted 

him, and his cousin on Reese Street. He further testified that 

Appellant had braids in his hair on the day of the shooting.

[fn] The video camera which points southbound on Reese 

Street was recovered from a barbershop located on that 
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corner and at the Glenwood Avenue intersection. The video 

played at trial shows two males being chased southbound on 

3300 Reese Street. After they passed through the camera’s 

coverage, two more males, a black male later identified as 

Appellant and a second, unidentified Hispanic male, emerge 

on camera and appear to be armed as they are running 

southbound in the same direction as the first two persons. 

Appellant is seen pointing a gun in the direction of where the 

two males are running ahead of him, as he gives chase down 

the west side of Reese Street and while the unidentified 

Hispanic male is in pursuit down the east side of the street, 

across from Appellant.

Nevertheless, Clarence recognized the second individual in the 

video as the same Hispanic male who was with Appellant at the 

time of the shooting based upon the clothing worn by the Hispanic 

male during their multiple encounters on the morning it occurred. 

During each encounter on the date in question, Clarence observed 

the Hispanic male wearing gray sweatpants and a gray hooded 

sweatshirt. The clothes were the same clothing worn by the 

second individual in the video of the shooting.

The Commonwealth introduced as substantive evidence,[fn]

Francis’ statement given to Detective Donna Zampirri on the 

morning of the shooting. In this statement, Francis indicated that 

a black male and a Hispanic male “came up from behind” him, and 

they said “don’t move, get down.” Francis elaborated in his 

testimony that the Hispanic male had advanced toward Francis

from the street as the black male approached him on the sidewalk; 

the black male then pulled out a gun, pointed it at him, “started 

shooting,” and afterward, both individuals ran from the scene 

toward Glenwood Avenue. Francis’ statement to the detective was 

consistent with the video.[fn] and with Clarence’s description of the 

two attackers, one Hispanic male and one black male who fired 

shots at Francis.

[fn] Francis’ written statement was marked as 

Commonwealth’s exhibit 7. When Francis was questioned at 

trial about his statement to the detective, he was unable to 

recall giving it even though he signed the document because 

he indicated that his memory of the occasion had been 
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compromised by the pain he suffered from the injuries at the 

time.

 

[fn] Specifically, the video and Francis’ statement are 

consistent in the shooter’s position on the western sidewalk 

of the street prior to the shooting, and in the same route on 

which the shooter departed the scene following it.

On June 16, 2014, while investigating the shooting, Police Officer 

John Seigafuse stopped two individuals, Ronald Burke and 

Appellant. Both were stopped in the area where the shooting 

occurred about a week prior. These two were stopped based on 

a description of the shooter that had been provided to police 

developed from flash information. Officer Seigafuse had been 

informed that the shooter was a tall black male with braids. These 

stops occurred approximately 5 minutes apart from each other. 

Both men fit the description at the time, and neither person was 

arrested on that day.[fn] According to Officer Seigafuse, he 

observed that Appellant’s hair was braided throughout his head in 

individual strands of braids to his shoulders[,] while only the top 

portion of Burke’s hair was braided and the sides were bushy. At 

no time prior to Officer Seigafuse’s stop of Burke and Appellant 

did the officer view the video or photographic images produced 

from the video of the shooting.

[fn] Commonwealth exhibit 16 reflects that Appellant was 

noted as a black male, 6’1 in height, and 185 lbs. in weight. 

Similarly, Commonwealth exhibit 17 lists Burke as a black 

male, 6’3” in height, and 230 lbs. in weight. Both men had 

braids in their hair at the time of the stop.

Following the stops, Detective Martin Sheeron obtained 

photographs of both Burke and Appellant based upon Officer 

Seigafuse’s description to the detective of both men’s height, 

weight, and physical build. Detective Sheeron testified that he 

reviewed the images from the video of the shooting and the 

photographs of Appellant and Burke. As a result of his 

comparison, Detective Sheeron ultimately developed Appellant as 

one of the suspects who shot the victim, Francis. Subsequently, 

a photo array containing Appellant was shown to Clarence Watts 
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on July 3, 2014. At this time, Clarence identified to Appellant as 

the shooter by circling Appellant’s photo in the photo array.

Police Officer Lawrence Flagler, of the City’s Firearms 

Identification Unit, testified to the origin of the firearm from which 

FCCs were expelled in relation to the location where the casings 

were found at the crime scene. The officer concluded that the set 

of FCCs collected from the west side of Reese Street were all fired 

from a single firearm, different and distinct from the firearm that 

fired the other set of FCCs recovered on the east side of that 

street. Further, the .9 millimeter bullet live round recovered from 

Appellant’s bedroom matched the unique markings of the FCCs 

found on the west side of the street where Appellant had been 

identified as running down the same pathway in the direction of 

the victim with a gun in hand.[fn] In other words, Police Officer 

Flagler concluded that the three FCCs expelled on the west side of 

the block and the live round from Appellant’s bedroom, at some 

point, were all chambered in the same gun.

[fn] His determination was based on the unique, identifiable 

markings on unfired live rounds that had been chambered in 

and extracted from a firearm that was consistent with the 

markings exhibited on the FCCs recovered from the west side 

of Reese Street.

Trial Court Opinion, 6/27/17, at 1-7 (citations to notes of testimony omitted).

As noted above, a jury found Appellant guilty of all charges. After a 

sentencing hearing conducted on December 16, 2016, the court imposed a 

sentence of nine to eighteen years’ incarceration on each of the aggravated 

assault and criminal conspiracy convictions, to run concurrently to one 

another, plus a term of four years’ probation for each firearms violation, to 

run consecutively to Appellant’s term of incarceration. Appellant filed postsentence motion challenging the weight of the evidence and the discretionary 

aspects of sentencing, which the court denied. This timely appeal followed.
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Appellant presents the following four issues for our review:

I. DID THE TRIAL COURT ERR WHEN IT DENIED THE 

DEFENSE MOTION TO DISMISS CHARGES WITH 

PREJUDICE PURSUANT TO PA.R.CRIM.P. 600(A) AS, 

EVEN AFTER TAKING EXCLUDABLE TIME INTO 

CONSIDERATION, APPELLANT DOMENICK 

WASHINGTON WAS NOT BROUGHT TO TRIAL WITHIN 

365 DAYS OF BEING ARRESTED AND CHARGED WITH 

VARIOUS CRIMINAL OFFENSES (ARREST DATE – JULY 

9, 2014)?

II. DID THE TRIAL COURT ERR WHEN IT FOUND 

APPELLANT DOMENICK WASHINGTON GUILTY OF THE 

CRIMINAL OFFENSES OF AGGRAVATED ASSAULT, 

CRIMINAL CONSPIRACY (TO COMMIT AGGRAVATED 

ASSAULT), FIREARMS NOT TO BE CARRIED WITHOUT 

A LICENSE AND CARRYING FIREARMS ON PUBLIC 

STREETS OR PUBLIC PROPERTY IN PHILADELPHIA, 

AS THE VERDICT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE?

III. DID THE TRIAL COURT ERR WHEN IT FOUND THAT 

THERE WAS SUFFICIENT EVIDENCE TO PROVE, 

BEYOND A REASONABLE DOUBT, THAT APPELLANT 

DOMENICK WASHINGTON WAS GUILTY OF THE 

CRIMINAL OFFENSE OF CRIMINAL CONSPIRACY (TO 

COMMIT AGGRAVATED ASSAULT)?

IV. DID THE TRIAL COURT ERR WHEN IT SENTENCED 

APPELLANT DOMINICK [SIC] WASHINGTON TO A 

TERM OF INCARCERATION WHICH WAS MANIFESTLY 

EXCESSIVE AS HIS SENTENCE DEPARTED FROM THE 

PENNSYLVANIA SENTENCING GUIDELINES?

Appellant’s brief, at 2.

Appellant first presents a Rule 600 argument charging the court with 

abusing its discretion when it denied his motion to dismiss pursuant to 
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Pa.R.Crim.P. 600. We review Rule 600 rulings for an abuse of discretion. 

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).

The proper scope of review is limited to the evidence on the record 

of the Rule [600] evidentiary hearing, and the findings of the 

[trial] court. An appellate court must view the facts in the light 

most favorable to the prevailing party.

Commonwealth v. Plowden, 157 A.3d 933, 936 (Pa.Super. 2017) (en banc) 

(citation omitted). When reviewing trial court rulings, this Court must 

consider Rule 600’s dual purposes, namely, the protection of the defendant’s 

speedy trial rights and the protection of society. Id.

At the hearing on Appellant’s Rule 600 motion, it was established that 

Appellant was arrested and charged in the case sub judice on July 9, 2014. 

N.T. 8/1/16, at 4. On the first preliminary hearing listing of July 24, 2014, 

the Commonwealth asked for and were granted a continuance because their 

witnesses were not present. N.T. at 4-5. On the second preliminary hearing 

of August 13, 2014, the Commonwealth indicated it was moving the case from 

a regular preliminary hearing to the Indicting Grand Jury (“IGJ”). N.T. at 5. 

At the September 8, 2014, status hearing, the Commonwealth indicated it had 

obtained an indictment and the case was scheduled for arraignment, which 

took place on September 29, 2014. On October 14, there was a scheduling 

conference and the court set a trial date of June 2, 2015, which was 37 days 

before the mechanical run date of July 9, 2015. N.T. at 5. 

The Commonwealth supplied defense counsel the IGJ discovery 60 days 

prior to the trial date, but on June 2, 2015, the Commonwealth informed the 
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court that it was not ready to try its case, as an essential Commonwealth 

witness had failed to appear. N.T. at 5-6. The trial court, therefore, gave the 

case a new listing of November 10, 2015, which was 25 days past the 

mechanical run date. N.T. at 6. Neither the Commonwealth nor defense 

counsel alerted the court to that fact.

On the scheduled trial date of November 10, 2015, defense counsel was 

again ready to proceed with trial, but the trial court indicated on the Court of 

Common Pleas’ public portal that it had a Priority case for that date, and 

continued the trial date to February 9, 2016. The accompanying docket entry 

lists the cause for continuance as “Court on trial Must be tried” for that date. 

On the next scheduled listing of February 9, 2016, defense counsel was 

on trial in another matter, and so the court entered a defense continuance of 

Appellant’s case to September 27, 2016. 

On June 16, 2016, Appellant filed a motion to dismiss pursuant to Rule 

600. At the hearing, Appellant argued that dismissal was required because 

the Commonwealth exhibited a lack of due diligence in failing to bring this 

case to trial on June 2, 2014 and again on November 10, 2015. The 

Commonwealth responded that it had done its due diligence in preparing to

try its case on the initial trial date of June 2, 2014, as evidenced by the 

presence of Clarence Watts in court that day. Nevertheless, it maintained, it 

was forced to seek a continuance when one essential witness failed to appear. 

N.T. at 14. Furthermore, it asserted it was ready on call for the next trial date 

of November 10, 2015, as it had maintained good contact with all witnesses 
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and had subpoenaed officers slated to testify. It had no control, however, 

over the trial court’s listing a different case as a priority trial for that same 

date. N.T. at 13. At the close of argument, the trial court denied Appellant’s 

motion to dismiss and imposed a trial date of September 27, 2016.

In his brief, Appellant baldly asserts that the Commonwealth’s lack of 

preparedness for the initial preliminary hearing, and its need for a continuance 

on the first trial date of June 2, 2015, impermissibly pushed the run date past 

365 days in violation of his Rule 600 rights. Moreover, he speculates, without 

offering specifics, that the Commonwealth was also responsible for the court’s 

decision to list a different case as a priority matter on November 10, 2015, 

thus delaying his case even further. He concedes that defense counsel 

required a continuance in February of 2016, which pushed his trial date back 

another seven months. 

Rule 600 states in relevant part that “[t]rial in a court case in which a 

written complaint is filed against the defendant shall commence within 365 

days from the date on which the complaint is filed.” Pa.R.Crim.P. 

600(A)(2)(a). Regarding the computation of time, Rule 600 provides that 

“periods of delay at any stage of the proceedings caused by the 

Commonwealth when the Commonwealth has failed to exercise due diligence 

shall be included in the computation of the time within which trial must 

commence. Any other periods of delay shall be excluded from the 

computation.” Pa.R.Crim.P. 600(C)(1). 
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Decisional law of this Commonwealth has held that “[e]xcludable time 

includes delay caused by the defendant or his lawyer. Concomitantly, 

excusable delay occurs where the delay is caused by circumstances beyond 

the Commonwealth’s control and despite its due diligence.” Commonwealth 

v. Roles, 116 A.3d 122, 125 (Pa.Super. 2015) (citations and internal 

quotation marks omitted). Due diligence “does not require perfect vigilance 

and punctilious care, but merely a showing the Commonwealth has put forth 

a reasonable effort.” Commonwealth v. Bradford, 46 A.3d 693, 701-02

(Pa. 2012) (citation omitted). The Commonwealth bears the burden of 

proving by a preponderance of the evidence that it exercised due diligence. 

Plowden, 157 A.3d at 941. 

When calculating time for purposes of Rule 600, a trial court may excuse 

time attributable to the unavailability of a witness because “[t]he 

Commonwealth cannot be held to be acting without due diligence when a 

witness becomes unavailable due to circumstances beyond its control.” 

Wendel, 165 A.3d at 957 (citation omitted) (holding that a police officer’s 

unavailability was a circumstance beyond the Commonwealth’s control, and 

the Commonwealth was not acting without due diligence in postponing trial); 

see also Commonwealth v. Hunt, 858 A.2d 1234, 1243 (Pa. Super. 2004) 

(en banc) (finding that victim’s unavailability due to absence from the country 

was a circumstance beyond the Commonwealth’s control).

Also, “[b]ecause the Commonwealth cannot control the calendar of a 

trial court, delay occasioned by the court’s unavailability is usually excusable. 
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Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa.Super. 2011) (citing 

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa.Super. 2007). 

However, the Commonwealth may, under some circumstances 

(e.g. a prolonged judicial absence), have a duty to seek other 

courtrooms to try the case. Commonwealth v. Anderson, 959 

A.2d 1248, 1250 (Pa.Super.2008). The extent of this duty 

depends on the specifics of each case. See id. The guiding 

principle is, again, that the Commonwealth must exercise due 

diligence by putting forth a reasonable effort in light of the 

particular case facts. Bradford, 2 A.3d at 632.

Riley, 19 A.3d at 1149. “Nor has our jurisprudence made notifying the court 

of an imminent run-date violation a necessary condition to due diligence.” 

Commonwealth v. Robbins, 900 A.2d 413, 417 (Pa.Super. 2006).

We add the amount of excludable and excusable time, if any, to the 

mechanical run date to arrive at an adjusted run date. Commonwealth v. 

Wendel, 165 A.3d 952, 956 (Pa.Super. 2017) (citation omitted). “Rule 600 

‘provides for dismissal of charges only in cases in which the defendant has not 

been brought to trial within the term of the adjusted run date. . . .’” 

Commonwealth v. Roles, 116 A.3d 122, 125–26 (Pa.Super. 2015).

There is no dispute that when the Commonwealth required a 

continuance on June 2, 2015, and the court relisted the trial date to November 

10, 2015, Appellant’s trial would not take place within the 365-day mechanical 

run date of July 9, 2015. 

The question before us, however, is whether the delay occasioned by 

the Commonwealth’s continuance occurred despite the Commonwealth’s due 
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diligence in preparing for trial, thus qualifying the delay as excusable time to 

be added to the mechanical run date in creation of an adjusted run date. 

On this point, the record shows the court accepted the Commonwealth’s 

explanation that it had made all preparations to try its case against Appellant 

on June 2, 2015, but an essential witness failed to appear on the day of trial. 

As discussed above, our precedent recognizes that a court may reasonably 

excuse time attributable to an unavailable witness. See Wendel, supra. 

Appellant, moreover, directs us to nothing undermining the court’s finding that 

the Commonwealth acted diligently in preparing for a June 2, 2015, trial.

In addition, Appellant fails to include in his brief the argument he made 

at the Rule 600 hearing—that the Commonwealth was obligated to secure a 

new trial date within or as close to the mechanical run date as possible. Yet, 

to the extent his argument may be liberally construed to imply such an 

argument, we would still reject it as having no support in our jurisprudence. 

See Robbins, supra. 

Finally, we disagree with Appellant’s contention that the delay caused 

by the court’s decision to give another case priority on the scheduled trial date 

of November 10, 2015, is also attributable to the Commonwealth. As noted 

above, we have held the trial court’s calendar is usually beyond the 

Commonwealth’s control, thus qualifying the time as excusable from the Rule 

600 calculation. See Riley, supra. 

At the Rule 600 hearing the trial court made a determination that the 

Commonwealth met its obligation to exercise due diligence in bringing 
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Appellant to trial in accordance within the time constraints of Rule 600. We 

find support for this determination in the record, and we, thus, discern no 

abuse of discretion in the court’s denial of Appellant’s Rule 600 motion to 

dismiss. 

Next, Appellant challenges the weight of the evidence2in support of all 

his convictions and the sufficiency of the evidence in support of his criminal 

conspiracy conviction. Our standard of review for a challenge to the weight 

of the evidence is as follows:

The weight of the evidence is 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. An appellate court 

cannot substitute its judgment for that of the finder of fact. Thus, 

we may only reverse the lower court's verdict if it is so contrary 

to the evidence as to shock one's sense of justice. Moreover, 

where the trial court has ruled on the weight claim below, an 

appellate court's role is not to consider the underlying question of 

whether the verdict is against the weight of the evidence. Rather, 

appellate review is limited to whether the trial court palpably 

abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal 

citations omitted). 

With respect to a sufficiency claim:

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. In applying [the above] test, we may not 

weigh the evidence and substitute our judgment for the fact-

____________________________________________

2 The well-settled standard of review for this issue is set forth in 

Commonwealth 
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finder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant's guilt 

may be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of fact may 

be drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the [finder] of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

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

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

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003)).

Appellant predicates his weight of the evidence claims on the alleged 

unreliability of Clarence Watts and the lack of memory claimed by Francis 

Watts during trial. See Appellant’s brief at 27-28. A verdict based on such 

evidence was, therefore, “pure conjecture,” Appellant maintains.

Applying our standard of review, we conclude the trial court did not 

abuse its discretion in denying Appellant’s weight of the evidence claim. 

Appellant contends Clarence Watts was an unreliable source because he went 

by numerous aliases and failed to report the shooting until he was later 

arrested for on unrelated charges. 

However, it is undisputed that Clarence Watts positively identified 

Appellant from a photo array and again at trial, where he described in detail 

his face-to-face interaction with Appellant leading up to the moment when 

Appellant pursued both Francis and Clarence with gun in hand. His trial 

testimony, moreover, was consistent with his earlier grand jury testimony, 
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and he also identified Appellant from the barber shop surveillance video 

capturing the shooting. 

Though Francis Watts testified he was unable to remember much of the 

shooting, the Commonwealth produced his prior signed statement given to 

police in which he implicated Appellant as the shooter. Other incriminating 

evidence included not only the video surveillance footage showing Appellant 

pursuing Clarence and Francis Watts, but also the testimony of the 

Commonwealth’s firearms expert, who explained to the jury that the markings 

on the one bullet recovered from Appellant’s apartment matched the markings 

on the shell casings recovered from the shooting scene, establishing that all 

bullets had been chambered in the same handgun. 

Given this record, we discern no reason to upset the trial court’s decision 

to deny Appellant’s weight of the evidence motion, as the jury’s verdict was 

not so contrary to the evidence as to shock one’s sense of justice. 

We likewise reject Appellant’s argument assailing his conspiracy verdict 

as unsupported by sufficient evidence. Pursuant to 18 Pa.C.S. § 903, a 

conviction of criminal conspiracy requires proof that:

a defendant entered into an agreement to commit or aid in an 

unlawful act with another person; that he and that person acted 

with a shared criminal intent; and that an overt act was taken in 

furtherance of the conspiracy. “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.” 

Therefore, where the conduct of the parties indicates that they 

were acting in concert with a corrupt purpose in view, the 

existence of a criminal conspiracy may properly be inferred. This 
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court has held that the presence of the following non-exclusive list 

of circumstances when considered together and in the context of 

the crime may establish proof of a conspiracy: (1) an association 

between alleged conspirators, (2) knowledge of the commission 

of the crime, (3) presence at the scene of the crime, and (4) 

participation in the object of the conspiracy.

Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa. Super. 2014) (internal 

citations omitted).

Specifically, Appellant contends there was no evidence that he had an 

agreement with a co-conspirator and committed an overt act in furtherance 

of this conspiracy or agreement. We disagree. Both the testimony of Clarence 

Watts and the video surveillance footage entered into evidence allowed for the 

reasonable inference that Appellant and the Hispanic man, who first directed 

the Wattses to Appellant for the purchase of crack cocaine and then joined 

Appellant in armed pursuit of the Wattses, had acted in concert for a corrupt 

purpose. We, therefore, reject Appellant’s sufficiency of the evidence claim.

Appellant’s next challenge goes to the discretionary aspects of his 

sentence. Appellant asserts that the lower court abused its discretion in 

imposing a “manifestly excessive” sentence that “constituted too severe a 

punishment,” and failed to consider mitigating factors properly. Appellant’s 

brief, at 18.3 

____________________________________________

3 We note that, contrary to requirements set forth in precedent from our Court, 

Appellant's Rule 2119(f) statement fails to specify where his sentence falls in 

relation to the sentencing guidelines. See Commonwealth v. Goggins, 748 

A.2d 721, 727 (Pa.Super. 2000) (requiring inclusion of such detail within an 

appellant's Rule 2119(f) statement). Under these circumstances, however, 

we do not hold Appellant's omissions to be fatal, for Appellant's brief does tell 
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When an appellant challenges the discretionary aspects of his sentence, 

we must consider his brief on this issue as a petition for permission to appeal. 

Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010). Prior to reaching 

the merits of a discretionary sentencing issue,

[this Court conducts] a four[-]part analysis to determine: (1) 

whether [A]ppellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [720]; (3) whether [A]ppellant’s brief 

has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted). Appellant filed a timely appeal, 

preserved his sentencing claim in a motion for reconsideration, and included 

a statement of the reason relied on for allowance of appeal pursuant to 

Pa.R.A.P. 2119(f) in his appellate brief. 

Moreover, we hold that, under the circumstances, Appellant has 

presented a substantial question for review. See e.g. Commonwealth v. 

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005) (holding substantial question 

raised where appellant alleges sentencing court improperly imposed 

____________________________________________

us that his sentence was outside of the guideline range. Appellant's Brief at 

pp. 35-36. See e.g. Commonwealth v. Flowers, 950 A.2d 330, 332 

(Pa.Super. 2008) (overlooking omission from Rule 2119(f) statement of where 

appellant's sentence falls within the Sentencing Guidelines where the 

particular length of the sentence was irrelevant to the substantial question 

presented). Because omissions within Appellant's Rule 2119(f) statement do 

not materially impede appellate review, we hold Appellant's Rule 2119(f) 

statement to be technically compliant.
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aggravated range sentence without consideration of mitigating 

circumstances); Commonwealth v. Parlante, 823 A.2d 927, 929–930 

(Pa.Super. 2003) (holding allegations that court imposed disproportionate 

sentence and did not consider proper sentencing factors raised substantial 

question). Therefore, we consider the merits of Appellant's appeal of the 

discretionary aspects of his sentence.

Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. An abuse of discretion is 

more than just an error in judgment and, on appeal, the trial court 

will not be found to have abused its discretion unless the record 

discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002) 

(citations omitted).

Here, the court imposed an upward departure sentence for aggravated 

assault and criminal conspiracy of 108 months incarceration, which is 18 

months above the top-end aggravated range sentence of 90 months given 

Appellant’s offense gravity score. The court explained, however, that it 

deviated from the guideline range for several reasons, including Appellant’s 

disregard for public safety in firing multiple bullets in a residential 

neighborhood at a time when most residents would have been home, and the 

fact that he did so in furtherance of his lucrative drug trafficking enterprise 

there. See N.T. 12/16/16, at 36, 56. 
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The recovery of a live round of ammunition, matching that used in the 

present crime, from Appellant’s apartment further demonstrated the 

continued threat to the neighborhood posed by Appellant. The court further 

considered the severe physical and emotional toll Appellant’s aggravated 

assault had upon Francis Watts. See Mouzon, 828 A.2d at 1130 (holding 

victim impact legitimate sentencing factor).

Moreover, there is no dispute that the trial court had the benefit of a 

PSI report prior to sentencing, and Appellant does not dispute the accuracy of 

this report. Thus, we presume that the trial court was aware of Appellant's 

mitigating circumstances and considered them when fashioning its sentence.

The record, in any event, belies Appellant’s contention that the court 

failed to consider mitigating factors prior to setting sentence. Indeed, the 

court confirmed its familiarity with Appellant’s presentence investigation 

report, which referred to Appellant’s difficult childhood, his rehabilitative 

needs, educational achievements and instances of a positive employment 

record. N.T. at 54-60. The court also noted the presence of Appellant’s family 

members at the proceedings. 

Therefore, it is clear that the court weighed the aggravating and 

mitigating factors in Appellant’s case and determined that an upward 

departure from the guideline range by 18 months would result in a fair 

sentencing scheme of concurrently-run sentences of incarceration. As we, 

thus, find the exercise of sound sentencing discretion within this record, we 

see no merit to Appellant’s sentencing challenge.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/22/18