J-S49043-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY SPRINGS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2109 EDA 2017

Appeal from the Judgment of Sentence June 5, 2017

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

No(s): CP-51-CR-0003448-2016

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 17, 2019

Appellant, Gregory Springs, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Philadelphia County after a jury found 

him guilty of third-degree murder and numerous firearm offenses stemming 

from his involvement in a neighborhood fight that ended when he shot a man, 

Frank Jones, to death. He raises for our consideration issues implicating the 

weight of the evidence and the discretionary aspects of his standard range 

sentence. We affirm.

The trial court has authored an opinion that aptly sets forth the relevant 

facts and procedural history, as follows:

FACTS

[The victim,] Frank Jones[,] lived at 4673 North 16th Street in the 

City of Philadelphia with his live-in girlfriend, Tiffany Newton, and 

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* Former Justice specially assigned to the Superior Court.
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their four children. On March 14, 2016, Jones had just gotten out 

of the shower when he heard a knock at the front door. Looking 

out the upstairs window, he saw that it was his neighbor, Kaniesha 

Johnakin, [and] her friend Megan Jones-Hilliard in front of his 

house. Newton answered the door. N.T. 3/15/17, at 78-84. 

Entering the house, Johnakin was upset, cursing, and [causing 

discord]. It seems that her boyfriend, Joe, [who was] working 

construction in Scranton, phoned her [and began to argue] with 

her that he knew [she] had another man in the house [and that 

the man] drove a white Chevy Malibu. Johnakin assumed that . . 

. Frank Jones[] had gotten word to Joe that [she] was cheating on 

him. Newton explained to Johnakin and Jones-Hilliard that they 

had to leave, as there were four young children upstairs getting 

ready for bed, and said that the intruders must get out. N.T. 

3/15/17, at 81-92, 215-218.

Johnakin and Jones-Hilliard left the house, but Johnakin continued 

her cursing and yelling and threatening Newton on the yard 

between the houses. [It was then that] Appellant came out of 

Johnakin’s house and, without saying a word, punched Frank

Jones in the face. A fight ensued between the two men and then 

a battle erupted between Johnakin and Newton. N.T. 3/15/17, at 

90-101, 220-224. The brawl between the two men broke up and 

Frank Jones then attempted to stop the scuffle between the two 

women. 

Appellant returned to Johnakin’s house as Frank Jones was pulling 

Newton out of her bout with Johnakin, which Jones-Hilliard had 

joined. N.T. at 100-105. Appellant came back out of Johnakin’s 

house [with a] gun in [his] hand, walked down three steps from 

the porch of the house and fired eight shots, all at Frank Jones. 

N.T. at 100-110, 223-226. 

Jones was wounded in his chest, hip, genitals, stomach, legs, and 

arm. [He] tried to get away, struggling down the street, where 

he finally collapsed. N.T. at 110-115, 188-198. Newton dialed 

911 and the police responded quickly, finding Jones collapsed near 

the porch of a neighbor. Realizing the urgency, the officers did 

not wait for the medics, but scooped Jones up and drove him to 

Einstein Hospital where he was rushed into surgery. . . . Jones 

died of the gunshot wounds at 3:05 a.m. the next morning. N.T. 

51-55, 184-85.
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In the meantime, Appellant had fled out the back door of 

Johnakin’s house, leaving his white Chevy Malibu at the crime 

scene. N.T. 3/16/17, at 16-17, 21-23. Appellant was identified 

by Johnakin, Jones-Hilliard, and Newton as the shooter. 

[Appellant fled to Atlanta, Georgia, but authorities arrested him in 

Philadelphia one week later with the aid of an anonymous tip that 

he was returning by bus].

. . .

PROCEDURAL HISTORY

Appellant was arrested and charged with murder, possession of a 

firearm prohibited, firearm not to be carried without a license, 

carrying firearms in public in Philadelphia, recklessly endangering 

another person and possessing an instrument of a crime on March 

22, 2016. Appellant was bound over for court on all charges 

following a preliminary hearing on April 5, 2016. A jury convicted 

Appellant of third degree murder, carrying a firearm without a 

license, carrying firearms in public in Philadelphia and possessing 

the instrument of a crime, and he was subsequently sentenced to 

twenty to forty years’ incarceration for the homicide with a 

consecutive two and one-half to five years’ imprisonment for 

carrying a firearm without a license to be followed by five years’ 

probation on the remaining charges. The aggregate sentence was 

twenty-two and one-half to forty-five years’ incarceration followed 

by ten years’ probation. Post-sentence motions were filed and 

denied. A timely notice of appeal was filed with the Superior 

Court.

Trial Court Opinion, 8/6/18, at 3-4, 1-2.

Appellant raises the following issues for our review:

1. [Was] the guilty verdict against the Appellant . . . against the 

weight of the evidence [so as to] shock the conscience[?]

2. [Was] the sentence imposed on the Appellant . . . excessive in light of 

all the circumstances[?]

Appellant’s brief, at 5.
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First, Appellant contends that the court erred in denying his postsentence motion for a new trial where the weight of the evidence did not allow 

for the reasonable inference that he shot Frank Jones with requisite malice. 

We disagree.

A weight of the evidence challenge “concedes that there is sufficient 

evidence to sustain the verdict.” Commonwealth v. Rayner, 153 A.3d 1049, 

1054 (Pa.Super. 2016) (citation omitted). Our standard of review for a claim 

that the verdict was against the weight of the evidence is as follows:

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. Rather, the role of 

the trial judge is to determine that notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny justice. 

It has often been stated that a new trial should be awarded when 

the jury's verdict is so contrary to the evidence as to shock one's 

sense of justice and the award of a new trial is imperative so that 

right may be given another opportunity to prevail

An appellate court's standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court:

Appellate review of a weight claim is a review of the 

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 that 
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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) (citations and 

quotation marks omitted) (emphasis in original). “Discretion is abused where 

the course pursued [by the trial court] 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. Widmer, 744 A.2d 

745, 753 (Pa. 2000).

The Crimes Code defines murder as follows:

§ 2502. Murder

(a) Murder of the first degree.—A criminal homicide 

constitutes murder of the first degree when it is committed 

by an intentional killing.

(b) Murder of the second degree.—A criminal homicide 

constitutes murder of the second degree when it is 

committed while defendant was engaged as a principal or 

an accomplice in the perpetration of a felony.

(c) Murder of the third degree.—All other kinds of murder 

shall be murder of the third degree. Murder of the third 

degree is a felony of the first degree.

* * *

18 Pa.C.S.A. § 2502(a)-(c). 

To establish the offense of third degree murder, the 

Commonwealth need only prove beyond a reasonable doubt that 

the defendant killed an individual, with legal malice, “i.e., ... 

wickedness of disposition, hardness of heart, wantonness, cruelty, 

recklessness of consequences, or a mind lacking regard for social 

duty.” Commonwealth v. Johnson, 719 A.2d 778, 785 
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(Pa.Super. 1998), appeal denied, 559 Pa. 689, 739 A.2d 1056 

(1999) (citing Commonwealth v. Young, 494 Pa. 224, 227, 431 

A.2d 230, 232 (1981) (holding sufficient evidence of malice 

existed to sustain third degree murder conviction, where 

defendant aimed loaded gun at victim and gun discharged, 

regardless of whether gun discharged accidentally or defendant 

intended only to scare victim)). Malice is established where an 

“actor consciously disregard[s] an unjustified and extremely high 

risk that his actions might cause death or serious bodily harm.” 

Id. at 228, 431 A.2d at 232.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).

Specifically, Appellant centers his weight of the evidence claim on the 

respective testimonies of Tiffany Newton and Kaniesha Johnakin, who 

recounted that Appellant first aimed the gun downward, below Jones’ waist, 

when he fired several shots into Jones before Jones approached him, at which 

time he fired additional shots that struck Jones’ torso. The Commonwealth 

counters that Appellant’s act of shooting Jones eight times under the 

circumstances, causing his death, reflected malice even if a number of shots 

were fired at Jones’ lower body. See Commonwealth v. Fisher, 80 A.3d 

1186, 1194 (Pa. 2013) (acknowledging fatally shooting one in the leg is 

“classic third degree murder”) (quoting Commonwealth v. Roebuck, 32 

A.3d 613, 624-25 (Pa. 2011) (Eakin, J., concurring)). 

For its part, the trial court viewed the evidence and concluded “Appellant 

had left the area of the altercation, deliberately went into his house, retrieved 

a loaded gun, returned to the yard and shot Frank Jones. This was not selfdefense, nor was it in the heat of passion.” Trial Court Opinion, 8/6/18, at 5. 

In light of both pertinent authority and the record, which includes evidentiary 
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support for the jury’s finding that Appellant committed a malicious act 

regardless of the consequences and directly resulting in the death of Jones, 

we discern no abuse of discretion with the trial court’s rejection of Appellant’s 

post-sentence weight of the evidence claim.

In Appellant’s second issue, he challenges the court’s exercise of 

sentencing discretion in imposing a standard range sentence for third-degree 

murder where, he again posits, evidence of malice was lacking. It is wellestablished that “[a] challenge to the discretionary aspects of sentencing does 

not entitle an appellant to review as of right.” Commonwealth v. Bynum–

Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016). In order to invoke this 

Court's jurisdiction to address such a challenge, the appellant must satisfy the 

following four-part test: the appellant must (1) file a timely notice of appeal 

pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing or in a 

timely post-sentence motion pursuant to Pa.R.Crim.P. 720; (3) ensure that 

the appellant's brief does not have a fatal defect as set forth in Pa.R.A.P. 

2119(f); and (4) set forth a substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code under 42 Pa.C.S.A. § 

9781(b). Id.

While Appellant filed a timely notice of appeal and preserved his 

sentencing claim in a post-sentence motion, the Commonwealth objects to his

failure to include a Rule 2119(f) statement in his appellate brief. When 

challenging the discretionary aspects of sentence, “an appellant must include 

in his or her brief a separate concise statement demonstrating that there is a 
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substantial question as to the appropriateness of the sentence under the 

Sentencing Code. Commonwealth v. Griffin, 149 A.3d 349, 353–54 

(Pa.Super. 2016) (citation omitted). “Where an appellant fails to comply with 

Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived for 

purposes of review.” Commonwealth v. Montgomery, 861 A.2d 304, 308 

(2004). In this case, the Commonwealth's objection to Appellant's failure to

adhere to our rules requiring inclusion of a Rule 2119(f) statement in his 

appellate brief results in the waiver of Appellant's sentencing claim on appeal.1

Judgment of sentenced affirmed. 

 Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/17/19

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1 Even if we were to forego finding waiver, we still would conclude Appellant 

fails to raise a substantial question with the propriety of his standard range 

sentence, as he merely resubmits his failed weight of the evidence argument 

that he acted without malice. This argument lacks relevance to the sentencing 

inquiry a proper discretionary aspects claim would prompt. See, e.g., 

Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (holding 

substantial question raised by claim court improperly based aggravated range 

sentence on factor constituting element of the offense); Commonwealth v. 

Ritchey, 79 A.2d 1183, 1186 (Pa.Super. 2001) (holding substantial question 

raised by claim court provided insufficient reasons for sentence and relied 

solely on seriousness of offense). 
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