J-S64006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARVIN E. HILL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2579 EDA 2017

Appeal from the Judgment of Sentence April 5, 2013

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

No(s): CP-51-CR-0005356-2011

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2018

Marvin E. Hill appeals nunc pro tunc from his aggregate judgment of 

sentence of sixteen-and-one-half to forty-three years imprisonment following 

his non-jury convictions for third-degree murder, firearms not to be carried 

without a license, carrying firearms on public streets in Philadelphia, and 

possession of an instrument of crime. We affirm. 

On January 7, 2010, . . . in response to a radio call, Officer 

James Bryan arrived at the 1300 block of Cumberland Street and 

found Stacey Linwood Sharpe, Jr., lying in the street shot. Officer 

Bryan transported Sharpe to Temple University Hospital, where at 

10:24 p.m., he died. Sharpe suffered two gunshot wounds, one 

to the back that hit his lung and exited through the chest, and the

other to the back of the right thigh.

On January 7, 2010, at about 6:30 p.m., Katerina Love was

sitting at her window in her home on the 1200 block of West

Cumberland Street when she heard gunshots. She looked out the

window and saw [Appellant] shoot Sharpe about three or four 

times and then run southbound on 13th Street. Ms. Love 

described the shooter as “dark skin, almost six feet, about 130 

pounds, clean shaven, maybe 20 or 21-years-old, black pants, a 
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black jacket with a red polo horse on it and a black hat with the 

red polo horse.” Ms. Love recognized [Appellant] as a man she 

had seen nearly every day outside of the store on 12th and 

Cumberland Street.

On May 11, 2010, Ms. Love identified [Appellant] from a

photo array. At trial, Ms. Love did not identify [Appellant],

testifying that she did not remember the incident.

From the 1200 block of Cumberland Street, officers 

recovered six, nine-millimeter fired cartridge cas[ings (“FCCs”)], 

one bullet specimen and two bullet jackets. According to Police 

Officer Edward Eric Nelson, the six recovered [FCCs] were fired 

from the same firearm and both bullet jackets were fired from the 

same firearm.

On January 8, 2010, Detective Thorsten Lucke recovered

surveillance video from a store located on the 2500 block of 

Sartain Street, a little over a block from the shooting. The video 

recorded the interior of the store, focusing at the door. The video 

showed [Appellant], who was wearing a knit hat with a Polo 

emblem, repeatedly entering and exiting the store for about an 

hour prior to the time of the murder. At 6:31 p.m., Tyree Alston, 

who was visible in the video standing outside of the store, pointed 

down the street and then walked out of view with a second 

unidentifiable person.

On April 28, 2010, Detective Nordo of the Homicide Unit was

directed by an assigned detective to locate [Appellant], Michael 

Hill, and Alston, who had been identified from a surveillance video 

as potential witnesses to the homicide. Detective Nordo located 

[Appellant] and his brother on the 2500 block of Sartain Street in

Philadelphia. Detective Nordo transported [Appellant] to the 

Police Administration Building (“PAB”) in an unmarked minivan, 

while Michael Hill was transported in a separate vehicle.

At approximately 5:30 p.m., they arrived at the PAB and,

pursuant to the assigned detective’s instructions, entered the 

building through the rear entrance, the Police Detention Unit 

(PDU). [Appellant] was patted down and taken to the Homicide 

Unit. [Appellant] was seated on a bench in the Homicide Unit and 

told to wait.
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At around 8:30 p.m., Detective Nordo interviewed Michael

Hill. Michael Hill indicated that on January 7, 2010, at about 6:30 

p.m., he was at the store at the corner of Sartain and Cumberland 

Streets, when Sharpe walked by and Alston started following him. 

Michael Hill then saw Alston pull out a gun and shoot Sharpe. 

Subsequently, on May 28, 2010, Michael Hill gave a second 

statement in which he indicated that both [Appellant] and Alston 

followed Sharpe and then he heard gunshots. The next day, 

[Appellant] told Michael Hill that he and Alston had shot Sharpe. 

On April 28, 2010, upon conclusion of Michael Hill’s interview, 

which ended well past Detective Nordo’s shift, Detective Nordo left 

the PAB.

On April 29, 2010, at 12:10 p.m., for reasons unknown to 

the court, [Appellant] was placed in a cell in the PDU. He 

remained in the cell for approximately fifteen minutes. At 12:25 

p.m., [Appellant] was checked out of the PDU cell and taken back 

to the homicide unit.

Detective Nordo arrived back at the homicide unit in the 

early afternoon and found [Appellant] sitting at a desk. At 1:55 

p.m., Detective Nordo began taking [Appellant]’s statement. 

Because Detective Nordo believed that at all times [Appellant] was

considered and being treated as a witness, he did not give 

[Appellant] Miranda warnings.

Detective Nordo credibly testified that [Appellant] was never

placed in handcuffs, neither when transported in the police vehicle 

nor while at the PAB. [Appellant] never asked to have an attorney

present during the interview. [Appellant] at all times appeared

cooperative and forthcoming with information during his 

interview. After [Appellant] gave his statement he was free to 

leave, and did so.

[Appellant] testified during the motion hearing that in

January of 2010 he had been brought into the PAB as a witness in 

the same homicide investigation and he stayed at the PAB for 

three days while he was interviewed before he was released. This 

court credited this testimony and [Appellant]’s testimony that on 

April 29, 2010, after he was informed of his brother’s statement, 

he decided to give a similar statement himself.

On May 27, 2010, Tyree Alston gave a statement to police. 

Alston explained that on January 7, 2010, [Appellant], Michael 
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Hill, himself and others were hanging around the store on Sartain 

and Cumberland Streets. [Appellant] saw Sharpe and told Alston 

that Sharpe owed [Appellant] money. [Appellant] then ran after

Sharpe and shot him. [Appellant] and Alston then went back to 

[Appellant’s] home, where [Appellant] explained that he shot 

Sharpe because, “[i]f [he] let him get away with keeping [his] 

package, then anyone else would do it.” On July 21, 2011, Alston 

sent [Appellant] a letter apologizing for giving the statement to 

police and indicated that his statement was a lie. At trial, Alston 

testified that it was two unidentified males who actually shot 

Sharpe, not [Appellant].

On May 31, 2010, Detective Sean Mellon of the fugitive 

squad began attempting to locate [Appellant]. Over the next few 

months, the Detective made many attempts, at about nine 

different locations, to locate [Appellant]. On February 15, 2011, 

[Appellant] was arrested at his aunt’s house at 1913 East Orleans 

Street.

At trial, Vincent Carter testified on behalf of [Appellant]. On

January 7, 2010, at 6:30 p.m., Carter was driving on 13th Street 

and turned onto Cumberland Street. When Carter turned onto 

Cumberland, he saw one person shooting another person. Carter 

described the shooter as wearing a hoodie, skull cap, jeans and 

boots.

Trial Court Opinion, 7/15/13, at 2-6 (citations and unnecessary capitalization 

omitted). 

Following the non-jury verdict, Appellant was sentenced as indicated 

above on April 5, 2013. Appellant filed the instant nunc pro tunc appeal 

following the restoration of his post-sentence and direct appeal rights. 

Appellant presents the following questions to this Court, which we have 

reordered for ease of review.

I. Was the evidence insufficient to establish that [A]ppellant 

violated the [U]niform [F]irearm [A]ct because there was 

insufficient evidence to establish that [A]ppellant carried the 

firearm in a vehicle or concealed on or about his person? 
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II. Did the trial court abuse its discretion in not ordering a new 

trial when the verdicts of guilt were against the weight of 

the evidence when the evidence of identification of 

[A]ppellant as the perpetrator of the crimes was vague, 

conflicting, contradictory and impeached?

III. Did the trial court err in admitting the prior inconsistent 

statement of the Commonwealth witness, Katerina Love, as 

substantive evidence when this prior inconsistent statement 

was not adopted by the witness?

Appellant’s brief at 2. 

We begin with the standard of review applicable to Appellant’s claim that 

the evidence was insufficient to support his firearms conviction.

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 factfinder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017) 

(citations and quotation marks omitted). 

The statute under which Appellant was convicted provides as follows in 

relevant part: “any person who carries a firearm in any vehicle or any person 

who carries a firearm concealed on or about his person, except in his place of 
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abode or fixed place of business, without a valid and lawfully issued license 

under this chapter commits a felony of the third degree.” 18 Pa.C.S. 

§ 6106(a)(1). Hence, “[i]n order to convict a defendant for carrying a firearm 

without a license, the Commonwealth must prove: (a) that the weapon was a 

firearm, (b) that the firearm was unlicensed, and (c) that where the firearm 

was concealed on or about the person, it was outside his home or place of 

business.” Commonwealth v. Parker, 847 A.2d 745, 750 (Pa.Super. 2004) 

(internal quotation marks and citation omitted). 

Appellant does not dispute that he lacked a license, or that the weapon 

at issue was a firearm; rather, he contends that “The Commonwealth in this 

case did not prove that the defendant was carrying the gun in a vehicle or 

concealed on his person.” Appellant’s brief at 11. Appellant argues that, 

looking at the evidence in the light most favorable to the Commonwealth, all 

that was proven is that “the perpetrator came down the street with the firearm 

in his hands.” Id. He contends that there was “insufficient evidence [to] for 

the fact finder to make a determination that the perpetrator had the weapon 

in a vehicle or concealed on his person outside of conjecture and surmise.” 

Id. We disagree.

At trial, the Commonwealth questioned Ms. Love regarding statements 

she had given to police. In the first, given on January 7, 2010, Ms. Love 

indicated that the shooter “pulled out a gun” and fired multiple shots at the 

victim. N.T. Trial, 1/22/13, at 150. In another interview the following day, 
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Ms. Love indicated that she did not see the shooter draw the weapon, but only 

looked up after the first shot when the gun was already out. Id. at 167. In 

a later interview given on May 11, 2010, Ms. Love identified Appellant as the 

shooter. Id. at 174-75. 

“[T]he evidence established at trial need not preclude every possibility 

of innocence and the fact-finder is free to believe all, part, or none of the 

evidence presented.” Commonwealth v. Watley, 81 A.3d 108, 113 

(Pa.Super. 2013) (en banc). Here the trial court, sitting as fact finder, credited 

the evidence that Appellant “pulled out a gun” from concealment. See Trial 

Court Opinion, 10/10/17, at 9. As such, the evidence was sufficient to 

establish the concealment element of the crime. See, e.g., Commonwealth 

v. Montgomery, 192 A.3d 1198, 1201 (Pa.Super. 2018) (holding evidence 

that the defendant’s firearm was tucked into the waistband of his pants with 

the handle visible was sufficient to show concealment). Appellant’s first claim 

of error merits no relief.

Appellant next contends that the verdict is against the weight of the 

evidence. The following principles apply to our review of that challenge.

Appellate review of a weight claim is a review of the [trial court’s] 

exercise of discretion, not of the underlying question of whether 

the verdict is against the weight of the evidence. Because the trial 

judge has had the opportunity to hear and see the evidence 

presented, an appellate court will give the gravest consideration 

to the findings and reasons advanced by the trial judge when 

reviewing a trial court’s determination that the verdict is against 

the weight of the evidence. One of the least assailable reasons 

for granting or denying a new trial is the lower court’s conviction 
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that the verdict was or was not against the weight of the evidence 

and that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013). This standard 

applies even when the trial judge rendered the verdict at issue as the finder 

of fact. See, e.g., Commonwealth v. Konias, 136 A.3d 1014, 1023 

(Pa.Super. 2016) (applying the above standard to a weight challenge following 

a bench trial). 

Appellant contends that all of his convictions were contrary to the weight 

of the evidence “because the identification of [Appellant] as the perpetrator 

of the crimes was vague, conflicting, contradictory and impeached.” 

Appellant’s brief at 7. Further, Appellant argues that there was no physical 

evidence to connect Appellant to the crime, and surveillance video showed 

Appellant at the scene prior to the shooting, but at a different location at the 

time of the incident. Id. 

The trial court offered the following explanation for its determination 

that the verdict was not against the weight of the evidence.

The Commonwealth presented a considerable amount of 

eyewitness testimony and physical evidence that [Appellant] 

fatally shot Stacey Linwood Sharpe, Jr. In their initial statements 

to the police, Katerina Love and Tyree Alston identified [Appellant] 

as the shooter. [Appellant’s] brother, Michael Hill, gave a 

statement saying that he saw [Appellant] and Alston chase Sharpe 

and that [Appellant] had confessed that he ([Appellant]) and 

Alston had shot Sharpe. Despite any recantation at trial, these 

witness statements were admissible for their truth. Moreover, 

surveillance video showed [Appellant] at the scene of the murder 

for about an hour leading up to the murder wearing clothing that 

matched the descriptions given by Katerina Love and Vincent 

Carter.
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Trial Court Opinion, 10/10/17, at 7-8 (citations omitted). Based upon this 

evidence, the trial court concluded that the verdicts “did not shock one’s sense 

of justice.” Id. at 7.

We find no abuse of discretion in the trial court’s determination. The 

court observed the witnesses, considered all of the evidence, and acted within 

its discretion in choosing “to credit the witnesses’ prior inconsistent 

statements over their recantations.” Commonwealth v. Brown, 134 A.3d 

1097, 1104 (Pa.Super. 2016). Further, the video evidence described by 

Appellant does not contradict the identification of the witnesses by 

establishing that Appellant was somewhere else at the time of the shooting; 

rather, it shows Appellant at a different, nearby location shortly after the 

shooting. Appellant’s brief at 8 (citing N.T. Trial, 1/28/13, at 228-29). In 

making his argument, Appellant essentially asks this Court to make different 

credibility determinations and weigh the evidence in his favor; however, this 

Court may not substitute its judgment for that of the fact-finder as to 

credibility issues or the weight to be given to evidence. Commonwealth v. 

Furness, 153 A.3d 397, 404 (Pa.Super. 2016). Appellant’s weight claim 

entitles him to no relief from this Court. 

Finally, Appellant contends that Ms. Love’s out-of-court statement to 

police was improperly admitted at trial because “it was not adopted by the 

witness and therefore could not be used as substantive evidence by the fact 

finder.” Appellant’s brief at 12.
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We consider Appellant’s argument mindful of the following.

The admissibility of evidence is a matter addressed solely to the 

discretion of the trial court, and may be reversed only upon a 

showing that the court abused its discretion. For there to be abuse 

of discretion, the sentencing court must have ignored or 

misapplied the law, exercised its judgment for reasons of 

partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision. 

Commonwealth v. Johnson, 179 A.3d 1105, 1119-20 (Pa.Super. 2018) 

(internal citations and quotation marks omitted). 

The general rule is that hearsay, out-of-court statements offered for the 

truth of the matter asserted, is not admissible. Pa.R.E. 802. However, under 

Pa.R.E. 803.1, a prior inconsistent statement of a declarant-witness, in the 

form of a writing signed and adopted by the declarant, is not excluded by the 

rule against hearsay if the declarant testifies and is subject to crossexamination about the prior statement. Pa.R.E. 803.1(1)(B). 

Our review of the record reveals that the last page of Ms. Love’s January 

7, 2010 statement states: “You have read your statement, and by signing, 

you affirm as to its truthfulness and accept it as your spoken word.” 

Commonwealth’s Exhibit C-33 at 3. There are two signature lines following

that affirmation/adoption sentence, one immediately below it and another at 

the very bottom of the page. Ms. Love’s signature appears on the latter. Id. 

Further, at trial, Ms. Love identified the signature as her own and indicated 

that she recalled signing the statement, and was subject to cross-examination 

about the statement. N.T. Trial, 1/22/13, at 148, 156. Accordingly, the trial 
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court did not abuse its discretion in admitting Ms. Love’s prior statement as 

substantive evidence. See, e.g., Commonwealth v. Stays, 70 A.3d 1256, 

1262 (Pa.Super. 2013) (holding prior out-of-court identification of defendant, 

signed by the witness, was admissible as substantive evidence where witness 

subsequently declined to identify the defendant and disavowed the prior 

statement but was subject to cross-examination about it). 

Having concluded that none of Appellant’s issues is meritorious, we 

affirm his judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/18