J-A02001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DONTE JONES

Appellant No. 1879 EDA 2013

Appeal from the Judgment of Sentence May 10, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014635-2011

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 06, 2015

Appellant, Donte Jones, appeals from the judgment of sentence 

entered May 10, 2013, by the Honorable Jeffrey P. Minehart, Court of 

Common Pleas of Philadelphia County, following his conviction of murder in 

the third degree and related offenses. We affirm. 

While serving a sentence for murder in the first degree, Appellant, 

along with co-defendant Sean Sullivan, was housed in Pod 2 of Block C at 

the Curran-Fromhold Correctional Facility. On June 21, 2011, Sullivan got 

into a dispute with the inmates in Cell 15, Aaron Young and Richard Gyton. 

Sullivan threatened to settle the dispute later that night. Sullivan began to 

recruit co-conspirators, including Appellant, to assist him. Later that day, 

Sullivan, Appellant, and two other inmates went to Cell 15. Sullivan had an 
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improvised knife sticking out of his pants. Ultimately, however, prison 

guards dispersed the group. 

Over the next hour, Appellant and his friends huddled together in the 

prison yard, while the Cell 15 inmates played basketball and then returned 

to their cell. A few minutes later, a fight broke out among inmates waiting 

to use the phone. Taking advantage of the confusion, Sullivan and two of 

his cohorts ran to Cell 15 and stabbed Gyton and Young multiple times. A 

friend of Gyton and Young heard the screams and ran towards their cell, 

where one of Sullivan’s friends attacked him. Sullivan and company ran 

towards the day room, where Appellant joined them. They ambushed 

another prisoner, Earl Bostic, stabbing him nine times and killing him. One 

corrections officer saw Appellant running from Bostic’s body. A search of 

Appellant’s cell turned up eight homemade weapons. 

Following a bench trial, the trial court convicted Appellant of murder in 

the third degree, conspiracy to commit homicide, possession of an 

instrument of crime, and possession of a prohibited offensive weapon. All of 

the charges stemmed from the murder of Bostic. The trial court acquitted 

Appellant of various charges stemming from the assaults on the other 

inmates. On May 10, 2013, based upon Appellant’s prior first-degree 

murder conviction, the trial court sentenced him to a second mandatory life 

sentence for murder in the third degree, with concurrent sentences on the 

remaining charges. This timely appeal followed. 

Appellant raises the following issues for our review.
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1. Were the verdicts of murder in the third degree, conspiracy to 

commit murder of the third degree, possession of an 

instrument of crime and possession of an offensive weapon, 

not supported by sufficient evidence? Was the evidence 

contradictory and conflicting and not sufficient to support the 

verdicts?

2. Were the verdicts of murder in the third degree, conspiracy to 

commit murder of the third degree, possession of an 

instrument of crime and possession of an offensive weapon 

against the weight of the evidence?

3. Did [the trial court] err in not holding a hearing and not 

granting a new trial based on the after discovered evidence of 

recantation by the Commonwealth witnesses, Tyrell Rivers 

and Richard Gyton?

Appellant’s Brief at 5. 

We review a challenge to the sufficiency of the evidence as follows.

The standard we apply when 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-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 

trier 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. Furthermore, when reviewing a sufficiency 

claim, our Court is required to give the prosecution the benefit of 

all reasonable inferences to be drawn from the evidence.
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However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such volume 

and quality as to overcome the presumption of innocence and 

satisfy the jury of an accused's guilt beyond a reasonable doubt. 

The trier of fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion will fail 

even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014) 

(citation omitted). 

We note preliminarily that the Commonwealth contends Appellant has 

waived his challenge to the sufficiency of the evidence in support of his 

convictions. “In order to preserve a challenge to the sufficiency of the 

evidence on appeal, an appellant's Rule 1925(b) statement must state with 

specificity the element or elements upon which the appellant alleges that the 

evidence was insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 

(Pa. Super. 2013) (citation omitted). “Such specificity is of particular 

importance in cases where, as here, the appellant was convicted of multiple 

crimes each of which contains numerous elements that the Commonwealth 

must prove beyond a reasonable doubt.” Id. (citation omitted). 

In his Rule 1925(b) Statement of Errors Complained of on Appeal, 

Appellant argues only that the evidence was insufficient to support his 

convictions because “the evidence was extremely contradictory and 

confusing.” Concise Statement, 7/2/13 at ¶1. Appellant fails to identify any

element of any of the crimes for which he was convicted that was not 

established by sufficient evidence. We therefore find that Appellant has 

failed to preserve his sufficiency claims on appeal. See Garland, supra. 
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Even if we were to review Appellant’s sufficiency claims, they would 

not merit relief. Appellant essentially argues that his verdicts were 

inconsistent because he was acquitted of the charges arising from the 

assaults of prison inmates other than Bostic. We simply find no 

inconsistency. Those charges arising out of the assaults of various other 

inmates rest on facts and evidence different from that upon which 

Appellant’s convictions were based. Thus, Appellant’s claim would still fail. 

Appellant next argues that the verdicts were against the weight of the 

evidence. See Appellant’s Brief at 37-41. We note that

[t]he finder of fact is the exclusive judge of the weight of the 

evidence as the fact finder is free to believe all, part, or none of 

the evidence presented and determines the credibility of the 

witnesses.

As an appellate court we cannot substitute our judgment 

for that of the finder of fact. Therefore, we will reverse a jury’s 

verdict and grant a new trial only where the verdict is so 

contrary to the evidence as to shock one’s sense of justice. A 

verdict is said to be contrary to the evidence such that it shocks 

one’s sense of justice when “the figure of Justice totters on her 

pedestal,” or when “the jury’s verdict, at the time of its 

rendition, causes the trial judge to lose his breach, temporarily 

and causes him to almost fall from the bench, then it is truly 

shocking to the judicial conscience.”

Furthermore, 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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) 

(citations omitted).
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Upon review, we find no abuse of discretion by the trial court in 

determining that the verdicts were not against the weight of the evidence. 

The trial court’s determinations are supported by the record, and the court 

acted well-within its discretion to credit the consistent testimony of the 

Commonwealth’s witnesses and not Appellant. See Commonwealth v. 

Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (“[T]he trier 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.” (citation 

omitted)). Thus, we find this claim to be without merit.

Lastly, Appellant argues that the trial court erred in denying his 

request for a new trial on the basis of after-discovered evidence. In support 

of his claim, Appellant relies upon two affidavits in which witnesses, Richard 

Gyton and Tyrell Rivers, recant their statements to detectives implicating 

Appellant in Bostic’s stabbing. See Appellant’s Brief, Exhibits B and C. To 

obtain relief based on after-discovered evidence, Appellant must 

demonstrate that the evidence: 

(1) could not have been obtained prior to the conclusion of the 

trial by the exercise of reasonable diligence; (2) is not merely 

corroborative or cumulative; (3) will not be used solely to 

impeach the credibility of a witness; and (4) would likely result 

in a different verdict if a new trial were granted.
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Commonwealth v. Perrin, 108 A.3d 50, --- (Pa. Super. 2015)1(citation 

omitted). 

In the instant case, Appellant’s after-discovered evidence claim is 

merely cumulative of the testimony Gyton and Rivers gave at trial. As 

astutely noted by the trial court, Gyton and Rivers had already effectively 

recanted their prior statements, so that their purportedly newly discovered 

testimony does not conflict with the testimony the witnesses offered at trial. 

Although both witnesses initially indicated to detectives that they observed 

Appellant stab Bostic, they refused to cooperate at trial and identify 

Appellant as the attacker. See N.T., 2/27/130 at 144; N.T., 2/28/13 at 41. 

Thus, as Gyton and Rivers never implicated Appellant in the prison attack at 

trial, the supposed recantation affidavits do not satisfy the requirement that 

the evidence would likely result in a different verdict if a new trial were 

granted. Accordingly, Appellant’s after-discovered evidence claim fails. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015

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1 As of March 26, 2015, page numbers were unavailable on Westlaw.