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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JERMAINE HENDERSON

Appellant No. 2128 EDA 2018

Appeal from the Judgment of Sentence Entered March 27, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000761-2017

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 18, 2019

Appellant, Jermaine Henderson, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for first -degree murder, attempted murder, aggravated

assault, possessing an instrument of crime, and carrying a firearm without a

license.' We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. Procedurally, we add Appellant filed a timely notice of appeal

on July 23, 2018. On July 25, 2018, the court ordered Appellant to file a

' 18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a), 907(a), and 6106(a)(1),

respectively.

Retired Senior Judge assigned to the Superior Court.
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concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).

Appellant complied on September 18, 2018.2

Appellant raises the following issues for our review:

WAS THE JURY'S VERDICT AGAINST THE WEIGHT OF THE

EVIDENCE IN LIGHT OF THE MOTIVE OF WITNESS TAUFEEQ

ZIYAD TO LIE AND THE OBVIOUS CONFLICTS IN THE

TESTIMONY OF WITNESSES [VICTIM 2] AND STEPHANIE

BRUNSON?

DID THE [TRIAL] COURT ERR IN FINDING THAT A CD OF

[APPELLANT]'S PRISON CALLS HAD BEEN PROPERLY

AUTHENTICATED?

(Appellant's Brief at 3).

The following principles apply to a weight of the evidence claim:

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...verdict if it is so contrary to the

evidence as to shock one's sense of justice.

Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d

666, 672-73 (1999). 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, 574 Pa. 435, 444, 832 A.2d 403, 408

2 Appellant's Rule 1925(b) statement was not timely filed. Nevertheless, we

decline to waive Appellant's issues because the trial court received the

statement and addressed Appellant's issues in a written opinion. See

Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc)

(allowing for immediate review under these circumstances).

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(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

"The admissibility of evidence is at the discretion of the trial court and

only a showing of an abuse of that discretion, and resulting prejudice,

constitutes reversible error." Commonwealth v. Ballard, 622 Pa. 177, 197-

98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014).

The term "discretion" imports the exercise of judgment, wisdom

and skill so as to reach a dispassionate conclusion, within the

framework of the law, and is not exercised for the purpose of

giving effect to the will of the judge. Discretion must be exercised

on the foundation of reason, as opposed to prejudice, personal

motivations, caprice or arbitrary actions. Discretion is abused

when the course pursued represents not merely an error of

judgment, but where the judgment is manifestly unreasonable or

where the law is not applied or where the record shows that the

action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal

denied, 624 Pa. 672, 85 A.3d 482 (2014). "To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party." Commonwealth v. Lopez, 57 A.3d 74, 81

(Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well -reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant's issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed October 16, 2018, at 3-8) (finding: (1) in his

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police statement, Taufeeq Ziyad said he was with Appellant on day of shooting

and heard Appellant and his associate make statements implicating Appellant

in shooting of Victims; Mr. Ziyad also explained Appellant shot Victim 1 in

retaliation for killing Appellant's friend, "Q -Ball"; Mr. Ziyad provided police

statement while in custody for unrelated shooting, in which police recovered

gun that Mr. Ziyad believed was same gun Appellant used to kill Victim 1; at

Appellant's trial, Mr. Ziyad admitted he understood he could have been

suspect in Victim l's murder if it was same gun; Mr. Ziyad recanted his police

statement at trial, but jury was free to believe all, part, or none of Mr. Ziyad's

police statement and recantation; furthermore, Commonwealth presented

evidence and testimony corroborating Mr. Ziyad's police statement; regarding

alleged conflict in testimony of Victim 2 and Stephanie Brunson, Appellant

does not specify how their testimony conflicted; nevertheless, Ms. Brunson's

testimony did not contradict Victim 2's account; both Ms. Brunson and Victim

2 testified Victims were holding hands and facing Appellant when shooting

began, and Victims ran to laundromat for cover; evidence fully supported

jury's verdict; (2) in order to authenticate CD containing recording of

Appellant's telephone call, Commonwealth presented testimony of John

Wright, who was responsible for monitoring phones at prison where Appellant

was incarcerated; Mr. Wright explained prison assigned each inmate unique

pin number, which inmate must enter each time inmate places call; Mr. Wright

confirmed phone call at issue was placed with Appellant's pin number; Mr.

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Wright also confirmed disk containing recording was identified with Appellant's

inmate number; furthermore, content of recorded phone call identified

Appellant as caller). Accordingly, we affirm based on the court's opinion.

Judgment of sentence affirmed.

Judgment Entered.

Jseph D. Seletyn,

Prothonotary

Date: 7/18/19

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) Circulated 06/20/2019 03:29 PM

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,. 

FILED 

COMMONWEALTH OF 

PENNSYLVANIA 

v. 

CP-51-CR-0000761-2017 

. . . .. 

CP,S1•CR·Oooo781 ·2017 Con»n. v: HENDERSON. JERMAINE 

()pnicl't • 

JERMAINE HENDERSON 

BRONSON, J. 

OPINION 

\. . 

II I I Ill II 1111111111111111 

8176902441 

···--· ------· 

October 16, 2018 

On March 27, 2018, following a jury trial before this Court, defendant Jermaine 

Henderson was convicted of one count each of murder of the first degree (18 Pa.C.S. § 2502(a)) 

(victim Derek White), attempted murder (18 Pa.C.S. §§ 90 I (a), 2502) (victim K.J.0 •..... ), 

1 

carrying a firearm without a license (18 Pa.C.S. § 6106(a)(l )), and possession of an instrument 

of crime ("PIC") (18 Pa.C.S. § 907(a)). The Court immediately imposed the mandatory sentence 

of life in prison for the murder charge ( 18 Pa.C.S. § 1102(a)( 1 )), with concurrent terms of IO to 

20 years imprisonment for attempted murder/ 3 Y:i to 7 years imprisonment for carrying a 

firearm without a license, and I to 5 years imprisonment for PIC, for an aggregate sentence of 

life in prison. The sentence was lo run consecutively to the mandatory life sentence defendant 

was already serving for an unrelated murder conviction. Defendant filed post-sentence motions, 

which the Court denied on July 12, 2018. 

I Defendant was also convicted of the aggravated assault (18 Pa.C.S. § 2702(a)) of victim J<.W. \ but no 

sentence was entered on that charge due to merger with the attempted murder conviction. 

2 Defendant had previously been convicted of aggravated assault, graded as a felony of the first degree, in 2003, 

which qualified as a conviction of a prior crime of violence under 42 Pa.C.S. § 9714. N.T. J/27/18 at 18· I 9. 

Accordingly, his attempted murder conviction in the instant case was a "second strike" and carried a mandatory 

sentence of IO to 20 years incarceration. 
Defendant has now appealed from the judgment of sentence entered by the Court on the 

grounds that: I) the verdict was against the weight of the evidence; and 2) the Court erred in 

finding that a CD recording of defendant's prison calls had been properly authenticated. 

Defendant's Concise Statement of Errors Complained of on Appeal ("Statement of Errors") at ii�

1-2. For the reasons set forth below, defendant's claims are without merit and the judgment of 

sentence should be affirmed. 

I. FACTUAL BACKGROUND 

At trial, the Commonwealth presented the testimony of Philadelphia police officers .John 

Smith, Leslie Cain, and John Cannon, Philadelphia police detective Donald Marano, 

Philadelphia deputy chief medical examiner Dr. Albert Chu, Philadelphia deputy sheriff Martin 

Samuels, SCI Graterford captain David Masceltino, John Wright of SCI Graterford's Internal 

Security Department, and Michelle Gerald, .; \( · W. ;, Taufeeq Ziyad, Ebony Cook, and 

Stephanie Brunson. Defendant presented no evidence. Viewed in the light most favorable to the 

Commonwealth as the verdict winner, the evidence established the following. 

On February 11, 2005> the victim, Derek White, was walking his daughter, K, W. 

home from her daycare located in the Wilson Park project in Philadelphia.

3 N.T. 3/22/18 at 17�

19. As the pair was walking through the parking lot of K Laundromat, located at the intersection 

of 27

111 and Snyder Streets, a man behind them yelled White's nickname, Scooter. N.T. 3/22/18 

at 19, 21-22; 3/26/18 at 17, 75. White and K,W,immediately turned around, and� .W.noticed 

that her father grew panicked. N.T. 3/22/18 at 19, 28. Suddenly, multiple shots were fired in 

their direction. N.T. 3/22/18 at 19. While White was hit by a bullet, he managed to pick up his 

daughter in order to run for cover in the laundromat. N .T. 3/22/18 at 20, 23; 3/26/18 at 35. Once 

K.\,J .. 

C"h,°,}a ViC1•JVl\will be referred to throughout this Opinion �s 

2 
inside the laundromat, White collapsed to the floor, and a bystander assisted K!W· .. N.T. 3/22/18 

at 24; 33. 

Philadelphia police officers responded to the scene upon the report of a shot male. N.T. 

3/20/18 at l 05. When they arrived, they discovered that K. W- had also gotten shot, and 

therefore, transported her in a police wagon to Children's Hospital of Philadelphia, where she 

was treated for a gunshot wound to the foot. N.T. 3/22/18 at 12; 3/26/18 at 127. Paramedics 

ultimately transported White to the Hospital of the University of Pennsylvania, where he was 

pronounced dead. N.T. 3/20/18 at 90, 106. The medical examiner determined that White's 

cause of death was a single gunshot wound to the left buttock. N.T. 3/20118 at 91. 

Philadelphia police officers and detectives then conducted an investigation of the 

shooting. N.T. 3/20/18 at 104-33; 3/22/18 at 159-80; 3/23/18 at 20-51. During the course of 

their investigation, Stephanie Brunson positively identified defendant as the shooter. N.T. 

3/26/18 at 51; Commonwealth Exhibit C·30 (Stephanie Brunson's police statement). 

Additionally, Taufeeq Ziyad informed police that defendant confessed to him that he committed 

the shooting, while Ebony Smith reported to police that approximately three days after the 

shooting, she overheard defendant telling someone that he "finally got that motherfucker." N.T. 

3/22/18 at 75·76; 3/23/18 at 74. 

11. DISCUSSION 

A. Weight of the Evidence 

Defendant first claims that his conviction was against the weight of the evidence, "in 

light of the motive of witness Tafiq [sic] Ziyad to lie and the obvious conflicts in the testimony 

of witnesses K. W. and Stephanie Brunson." Statement of Errors at� 1. This claim is 

without merit. 

3 
It is well-established that a new trial may only be granted by the trial court where the 

verdict was so contrary to the weight of the evidence as to ,a shock one's sense of justice.!" 

Commonwealth v. Rossetti, 863 A.2d 1185, 1 I 91 (Pa. Super. 2004), appeal denied, 878 A.2d 864 

(Pa. 2005) (quoting Commonwealth v. Hunter, 554 A.2d 550, 555) (Pa. Super. 1989)). 

Moreover, credibility determinations are solely within the province of the fact-finder, and "[a]n 

appellate court cannot substitute its judgment for that of the finder of fact." Commonwealth v. 

Taylor, 63 A.3d 327, 330 (Pa. Super. 2013) (internal quotation omitted). In considering a claim 

that the trial court erred in refusing to find that a verdict was against the weight of the evidence, 

"appellate review is limited to whether the trial court palpably abused its discretion in ruling on 

the weight claim." Id 

Here, defendant offers two speci fie arguments in support of his weight of the evidence 

claim. Defendant first avers that witness Taufeeq Ziyad had a motive to lie. Statement of Errors 

at ir 1. At trial, the Commonwealth presented Ziyad's police statement, in which he told police 

that on the day of the shooting, he and defendant were hanging out with some friends at a home 

on Bailey Terrace." N.T. 3/22/18 at 75. Eventually, defendant and one of the friends, Rasheed, 

left the home; however, defendant soon reentered and told the group, "I seen him." Id. He then 

grabbed a chrome revolver from underneath the couch and left. id. A few minutes later, he 

returned and said,"[ got him." Id. Rasheed also returned and told defendant, "I think you killed 

that little girl." Id. After hearing that, defendant planned to turn himself in. Id I-Ie changed his 

mind, however, once he received word that the little girl had only gotten shot in the foot. N.T. 

3/22/18 at 75-76. Moreover, Ziyad explained to police that defendant shot White in retaliation 

for White killing defendant's close friend, "Q-ball", one year prior. N.T. 3/22/18 at 101-02. 

� Ziyad's statement was admissible for its truth as a prior inconsistent statement that was signed and adopted by the 

declarant, See Pa.R.E. 803. l(l)(b). 

4 
It is true that Ziyad gave his statement to police while he was in custody for an unrelated 

shooting. It is also true that in that unrelated shooting, police had recovered a gun that Ziyad 

believed was the same gun that defendant used to kill White.

5 N.T. 3/22/18 at 146-47, 164. At 

trial, Ziyad admitted that he understood that he could have been a suspect in White's murder if 

that gun was indeed determined to be the gun used in White's murder. N.T. 3/22/18 at 148. 

However, at trial, Ziyad recanted his police statement that incriminated defendant and instead 

claimed that police forced him to say "everything." N.T. 3/22/18 at 74. Nevertheless, the jury 

was free to evaluate both Ziyad' s statement as well as his testimony at trial recanting the 

statement, and was "free to believe all, part, or none of the evidence." Commonwealth v. 

Hanible, 836 A.2d 36, 39 (Pa. 2003). 

Moreover, the Commonwealth presented additional evidence that strongly corroborated 

Ziyad' s police statement. Stephanie Brunson testified that at the time of the shooting, she was 

walking through the laundrornat's parking lot when she saw defendant fire multiple shots at 

White and \(.\,J., and then witnessed defendant run by her and towards the projects. N.T. 

3/26/18 at 23-24, 40. She also testified that as defendant fled the scene, she saw him hand over 

the murder weapon to another male. N.T. 3/26/18 at 40. In addition, the Commonwealth 

presented Ebony Cook's police statement, in which she recounted hearing defendant tell 

someone a few days after the shooting that he "finally got that motherfucker." N .T. 3/23/18 at 

74. Cook also told police that defendant shot White because defendant "was a friend of QBall's." N.T. 3/23/18 at 79. While like Ziyad, Cook recanted her police statement, the jury was 

again free to evaluate both Cook's police statement and her recantation. Hanible, 836 A.2d at 

5 Police <lid recover two firearms, a 9 mm Rugar handgun and a 9 mm Star handgun, on the date of Ziyad's arrest, 

which were cross-checked with the ballistics from the murder. N.T. 3/23/18 at 41-43, 45. While police were able to 

conclude to a reasonable degree of scientific certainty that the Rugar handgun was not the murder weapon, the 

results were inconclusive as to the Star handgun. N.T. 3/23/18 at 41-43. 

5 
39. Moreover, such recantations are "notoriously unreliable." Commonwealth v . Johnson, 966 

A.2d 523, 54 l (Pa. 2009) (internal quotations omitted). 

Defendant next claims that the verdict was against the weight of the evidence due to "the 

obvious conflicts in the testimony of witnesses i K.w. : and Stephanie Brunson." Statement 

of Errors at� 1. While defendant does not specify how K. W.: and Brunson' s testimonies 

conflicted, at trial during closing arguments, trial counsel argued that eyewitness Brunson' s 

testimony and identification of defendant were not credible because K.W, testified that she and 

her father turned around to face the shooter after the shooter yelled White's nickname, "which 

was"[ e]xactly the opposite of what Stephanie Brunson describe[d] ... " N. T. 3/26/18 at 152. 

At trial, .K.�'\L testified that she and her father were walking through the parking lot of the 

laundromat when they heard someone behind them yell White's nickname, causing them to turn 

around, where they were immediately fired upon. N.T. 3/22/18 at 19. Contrary to trial counsel's 

assertion during closing arguments, Brunson' s testimony did not contradict I( W.1' s account, as 

Brunson also testified that K.Jit and White were facing the shooter when the shots began. N.T. 

3/26/18 at 18, 28, 31-32. Moreover, both witnesses recalled that K.w. and White were holding 

hands when the shooting began, and that the pair ran to the laundromat for cover. N.T. 3/22/18 

at 20-21; 3/26/18 at 18. 

In addition, as discussed above, the Commonwealth also presented Ziyacl'lnd Cook's 

police statements which corroborated Brunson's testimony and identification of defendant. 

Moreover, police recovered seven fired cartridge casings from the scene of the shooting and 

determined that they were all fired from the same firearm, corroborating Brunson's account that 

· there was single shooter. N.T. 3/23/18 at 37; 3/26/18 at 18. All of this was compelling evidence 

6 
that fully supported the jury's verdict. For that reason, the Court did not abuse its discretion in 

denying defendant's motion for a new trial. 

B. Authentication of CD Containing Defendant's Prison Call 

' Defendant next claims that the Court "erred in finding that a CD of defendant's prison 

calls had been properly authenticated." Statement of Errors at i12. This claim is without merit. 

Under Rule 90 J. of the Pennsylvania Rules of Evidence, "[t]o satisfy the requirement of 

authenticating or identifying an item of evidence, the proponent must produce evidence 

sufficient to support a finding that the item is what the proponent claims it is." Pa.R.E. 90l(a). 

Specifically, "[i]t is clear. .. that when seeking to introduce testimony as lo the content of a 

telephone conversation, the identity of the caller may be established by circumstantial evidence." 

Commonwealth v. Stewart, 450 A.2d 732, 733 (Pa. Super. 1982). Such circumstantial evidence 

may include the content of the telephone conversation itself. Pa.R.E. 901, Comment (citing 

Bonavitacola v. Cluver, 619 A.2d 1363 (Pa. Super. 1993)). 

The CD here at issue was a recording of a telephone call placed by defendant from state 

prison while awaiting trial in the instant case. To authenticate the recording, the Commonwealth 

presented the testimony of John Wright, who was responsible for monitoring the phones at SCI 

Graterford, the institution where defendant was housed at the time of the phone call. N.T. 

3/26/ J 8 at I 02-04. Wright explained that for an inmate to be able to make a phone call, the 

inmate is first assigned a unique pin number, which must be entered each time a call is placed. 

N.T. 3/26/18 at 104, 112. That pin number is uniquely associated with the inmate's prison 

inmate number. N.T. 3/26/18 at I 12. Regarding the recording at issue, Wright confirmed that 

the phone call was placed from defendant's pin number. N.T. 3/26/18 at l 14-15. Finally, 

7 
Wright confirmed that the disk containing the recording was identified by defendant's inmate 

number, NF0417. N.T. 3/26/18 at 117. 

Defendant's identity was not only established through the above described pin system, 

but also through the content of the recorded phone call itself. The phone call occurred on March 

8, 2018, and the caller told the recipient on the line, "I start next Monday ... Ready to go, you 

heard me?" Commonwealth Exhibit C-55 (recording of prison call). Defendant's trial did 

indeed start that next Monday, March 19, 2018. Moreover, the caller discussed a "rat" who was 

housed on the same block as defendant and expressed his hope that "they put him on." Id. The 

Commonwealth presented the testimony of Captain David Mascellino of SCI Grater ford, who 

confirmed that defendant and Commonwealth witness Taufeeq Ziyad were both housed on the 

Delta block at Graterford during that period. N.T. 3/26/18 at 91-94. All of this was sufficient 

evidence under Pa.R.E. 901 for the Court Lo allow the CD to be played for the jury. 

III. CONCLUSION 

For all of the foregoing reasons, the Court's judgment of sentence should be affirmed. 

BY THE COURT: 

8 
Commonwealth v. Jermaine Henderson 

Type of Order: 1925(a) Opinion 

PROOF OF SERVICE 

CP-51-CR-0000761-2017 

1 hereby certify that 1 am this day serving the foregoing Court Order upon the person(s), and in 

the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114: 

Defense Counsel/Party: 

James F. Berardinelli, Esquire 

1600 Locust Street 

Philadelphia, PA 19102 

Type of Service: 

District Attorney: 

Type of Service 

( ) Personal (X) First Class Mail () Other, please specify: 

Lawrence Goode, Esquire 

Interim Supervisor, Appeals Unit 

Office of the District Attorney 

Three South Penn Square 

Philadelphia, PA 19107-3499 

() Personal ( ) First Class Mail (X) Other, please specify: Interoffice 

Additional Counsel/Party: 

Joseph D. Seletyn, Esquire 

Prothonotary 

Office of the Pro tho notary - Superior Court 

530 Walnut Street, Suite 315 

Philadelphia, PA 19106 

Type of Service: () Personal () First Class Mail () Other, please specify: 

Dated: October 16, 2018