J-S11007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NYSARE ONEIL O. ALSTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 215 EDA 2018

Appeal from the Judgment of Sentence November 16, 2017

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

No(s): CP-51-CR-0007416-2016, 

CP-51-CR-0007420-2016

BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED MAY 13, 2019

Nysare Oneil O. Alston (“Appellant”) appeals from the judgment of 

sentence imposed after a jury found him guilty of murder in the first degree, 

conspiracy to commit murder, two counts of robbery, two counts of kidnapping 

for ransom, firearms not to be carried without a license, firearms not to be 

carried in public, possession of an instrument of crime (“PIC”), attempted 

murder, and aggravated assault.1 We affirm.

The trial court summarized the facts of this case as follows: 

On April 17, 2014, [Appellant], Brandon McKelvey, 

Christopher Corley[, DeForest Johnson,] and Ken Thomas 

kidnapped Carl Johnson and Ryan Hardy, as part of a robbery 

scheme.1 During the course of the robbery, both men were shot. 

____________________________________________

1

 18 Pa.C.S. §§ 2502(a), 903, 3701, 2901, 6106, 6108, 907, 901(a), and 

2702, respectively.
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[Carl] Johnson died as a result of his injuries. Hardy was injured, 

but survived.

1 Co-defendant DeForest Johnson filed a Motion for 

Severence [sic], which was granted. Co-defendant,

Ken Thomas entered into an open guilty plea to 

murder of the third degree, kidnapping, conspiracy to 

commit robbery, VUFA [Violations of the Uniform 

Firearms Act] charges, aggravated assault, [PIC] and 

avoiding apprehension. N.T., 11/08/17 at pp. 200–

202. Thomas testified in the instant matter pursuant 

to a Memorandum of Agreement with the 

Commonwealth. He has not been sentenced yet.

Trial Court Opinion, 6/6/18, at 3.2 Following Appellant’s jury trial and 

convictions, the trial court sentenced him on November 16, 2017, “to 

concurrent terms of life without the possibility of parole for the first degree 

murder and conspiracy to commit murder convictions and a consecutive ten 

(10) to twenty (20) years confinement for the attempted murder conviction. 

No further penalty was imposed for the remainder of the charges.” Id. at 1–

2.

Appellant filed a post-sentence motion challenging the weight and 

sufficiency of the evidence. Post-Sentence Motion, 11/26/17, at ¶¶ 3, 4. The 

trial court denied Appellant’s post-sentence motion without a hearing. Order, 

12/11/17. This appeal followed. Notice of Appeal, 1/4/18. Appellant and the 

trial court complied with Pa.R.A.P. 1925.

____________________________________________

2

 Appellant was tried together with co-defendants Corley and McKelvey. Codefendant Corley’s appeal is lodged at 209 EDA 2018, and co-defendant 

McKelvey’s appeal, at 65 EDA 2018.
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On appeal, Appellant presents the following two questions: 

I. Whether the adjudication of guilt is against the weight of the 

evidence and shocking to one’s sense of justice where there 

was no physical evidence linking the Appellant to the crimes, 

where the cooperating co-defendant was a corrupt and 

polluted source who had lied on previous occasions to the 

police but who nevertheless established unequivocally that 

the Appellant did not share the intent to kill, where the cell 

phone evidence was circumstantial and based upon an 

incomplete analysis and investigation of other calls and 

people associated with the cooperating co-defendant, and 

where the convictions are based upon the preposterous 

theory that the Appellant arranged for an abduction of the 

victims in front of his own home?

II. Whether the adjudication of guilt for First Degree Murder, 

Attempted First Degree Murder and Conspiracy to Commit 

Murder is based upon insufficient evidence were the 

Appellant did not shoot the decedent or the other victim and 

where the Commonwealth did not prove beyond a 

reasonable doubt that he shared the intent to kill?

Appellant’s Brief at 6. 

Because a successful sufficiency-of-the-evidence claim warrants 

discharge on the pertinent crime, we address Appellant’s second issue first. 

Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (citing 

Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super. 2011)). Appellant 

argues that there was insufficient evidence presented to support a finding of 

guilt on the charges of first degree murder, attempted first degree murder,

and conspiracy to commit murder. Appellant’s Brief at 25–26. Specifically, 

Appellant contends that the Commonwealth failed to prove that he shared his 

co-conspirator’s specific intent to kill Carl Johnson and Ryan Hardy. Id.

Our standard of review is well established:
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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-finder[’s]. 

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. Enix, 192 A.3d 78, 81 (Pa. Super. 2018) (quoting 

Commonwealth v. Estepp, 17 A.3d 939, 943–944 (Pa. Super. 2011)).

“A criminal homicide constitutes murder of the first degree when it is 

committed by an intentional killing.” 18 Pa.C.S. § 2502(a). To prove murder 

in the first degree, the Commonwealth must demonstrate that a human being 

was unlawfully killed, that the defendant did the killing, and that the killing 

was done in an intentional, deliberate, and premeditated manner. 

Commonwealth v. Bryant, 67 A.3d 716, 721 (Pa. 2013). “What 

distinguishes first degree murder from all other forms of homicide is the 

existence of a specific . . . intent to kill.” Commonwealth v. Wayne, 720 

A.2d 456, 460 (Pa. 1998) (citation omitted). 
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“A person commits an attempt when, with intent to commit a specific 

crime, he does any act which constitutes a substantial step toward the 

commission of that crime.” 18 Pa.C.S.A. § 901(a). “A person may be 

convicted of attempted murder ‘if he takes a substantial step toward the 

commission of a killing, with the specific intent in mind to commit such an 

act.’” Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008) 

(quoting Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003)).

To convict a defendant of conspiracy, the trier of fact must find 

that: (1) the defendant intended to commit or aid in the 

commission of the criminal act; (2) the defendant entered into an 

agreement with another (a “co-conspirator”) to engage in the 

crime; and (3) the defendant or one or more of the other coconspirators committed an overt act in furtherance of the agreed 

upon crime. The essence of a criminal conspiracy, which is what 

distinguishes this crime from accomplice liability, is the agreement 

made between the co-conspirators.

“Mere association with the perpetrators, mere presence at the 

scene, or mere knowledge of the crime is insufficient” to establish 

that a defendant was part of a conspiratorial agreement to commit 

the crime. There needs to be some additional proof that the 

defendant intended to commit the crime along with his coconspirator. Direct evidence of the defendant’s criminal intent or 

the conspiratorial agreement, however, is rarely available. 

Consequently, the defendant’s intent as well as the agreement is 

almost always proven through circumstantial evidence, such as by 

“the relations, conduct or circumstances of the parties or overt 

acts on the part of the co-conspirators.”

Commonwealth v. Golphin, 161 A.3d 109, 1018–1019 (Pa. Super. 2017), 

appeal denied, 170 A.3d 1051 (Pa. 2017) (quoting Commonwealth v. 

Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (internal citations and quotation 

marks omitted)).
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Where murder is committed in the furtherance of a conspiracy, each 

member of a conspiracy to commit murder can be convicted of murder of the 

first degree, regardless of who inflicted the fatal wound. Specific intent to kill 

can be inferred from the use of a deadly weapon on a vital part of the body. 

Murphy, 844 A.2d 1238. Accord Golphin, 161 A.3d at 1018–1019 (“Once 

the trier of fact finds that there was an agreement and the defendant 

intentionally entered into the agreement, that defendant may be liable for the 

overt acts committed in furtherance of the conspiracy regardless of which coconspirator committed the act.”).

Viewing all the evidence admitted at trial in the light most favorable to 

the Commonwealth, we agree with the trial court that there was sufficient 

evidence to enable the trier of fact to find every element of murder of the first 

degree, attempted first degree murder, and conspiracy beyond a reasonable 

doubt. N.T. (Ken Thomas), 11/8/17, at 87–213; N.T. (Ladashe Johnson), 

11/9/17, at 53–69; N.T. (Detective James Dunlap), 11/13/17, at 3–56. In 

support of our conclusion, we adopt as our own the well-reasoned analysis of 

the trial court in its Pa.R.A.P. 1925(a) opinion. Trial Court Opinion, 6/6/18, 

at 23–28.

Appellant’s remaining issue is a challenge to the weight of the evidence. 

Appellant’s Brief at 20. Appellant complains that the jury “capriciously 

disregarded” the lack of fingerprint, DNA, and video evidence linking him to 

the crimes. Id. at 21. Appellant also complains that the jury “capriciously 
J-S11007-19

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disregarded the unrebutted testimony of Kenneth Thomas that . . . Appellant’s 

intention was to release the victims and not kill them.” Id. According to 

Appellant, Ken Thomas’ unrebutted testimony “soundly exonerated” Appellant 

“from having the mens rea for First Degree Murder, Attempted First Degree 

Murder and Conspiracy to Commit Murder.” Id. at 23 (italics supplied).

We have held that “[a] motion for [a] new trial on the grounds that the 

verdict is contrary to the weight of the evidence[] concedes that there is 

sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153 

A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer, 

744 A.2d 745, 751 (Pa. 2000)). Our Supreme Court has described the 

standard applied to a weight-of-the-evidence claim as follows:

The decision to grant or deny a motion for a new trial based 

upon a claim that the verdict is against the weight of the evidence 

is within the sound discretion of the trial court. Thus, “the function 

of an appellate court on appeal is to review the trial court’s 

exercise of discretion based upon a review of the record, rather 

than to consider de novo the underlying question of the weight of 

the evidence.” An appellate court may not overturn the trial 

court’s decision unless the trial court “palpably abused its 

discretion in ruling on the weight claim.” Further, in reviewing a 

challenge to the weight of the evidence, a verdict will be 

overturned only if it is “so contrary to the evidence as to shock 

one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations 

omitted). A trial court’s determination that a verdict was not against the 

interest of justice is “[o]ne of the least assailable reasons” for denying a new 

trial. Commonwealth v. Colon–Plaza, 136 A.3d 521, 529 (Pa. Super. 2016) 

(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A verdict 
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is against the weight of the evidence where “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.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. 

Super. 2003) (quoting Widmer, 744 A.2d at 751–752). “[W]e do not reach 

the underlying question of whether the verdict was, in fact, against the weight 

of the evidence.... Instead, this Court determines whether the trial court 

abused its discretion in reaching whatever decision it made on the motion[.]” 

Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation 

omitted).3

Here, the trial judge, who viewed the witnesses’ demeanors at trial, 

determined that the verdict did not shock her sense of justice. We ascertain 

no abuse of discretion in this determination. In support of our conclusion, we 

adopt as our own the well-reasoned analysis of the trial court in its Pa.R.A.P. 

1925(a) opinion. Trial Court Opinion, 6/6/18, at 17–23. We add an 

observation. According to Appellant, Thomas’ testimony that Appellant did 

not intend to kill the victims was unrebutted evidence that Appellant lacked 

the requisite mens rea for murder. We remind Appellant that co-conspirator 

McKelvey’s cellmate, Aaron Smith, contradicted Thomas’ testimony: Smith 

____________________________________________

3

 A challenge to the weight of the evidence must first be raised at the trial 

level “(1) orally, on the record, at any time before sentencing; (2) by written 

motion at any time before sentencing; or (3) in a post-sentence motion.” 

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). Appellant 

properly preserved his weight of the evidence claim by raising the issue in his 

post-sentence motion filed on November 26, 2017.
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testified that McKelvey confessed to killing Carl Johnson because Appellant 

believed that Carl Johnson would have identified Appellant. N.T., 11/13/17, 

at 107–108.

We discern no error of law or abuse of discretion by the trial court. 

Accordingly, Appellant is not entitled to relief.4

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/13/19

____________________________________________

4

 The parties are directed to attach a copy of the trial court’s June 6, 2018 

opinion in the event of further proceedings in this matter.
Circulated 05/03/2019 11:21 AM

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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA 

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v. CP-51-CR-0007420-2016 

NYSARE O'NEIL O ALSTON 

Rose Marie Defino-Nastasi, J. 

OPINION 

PROCEDURAL HISTORY 

215 EDA 2018 

CP.5!·CR-0007� 16-201& Co Opi;:!:,; v. Alsfon, Nysare Oflell O 

/fl/II/Ill DI Ill/I/ mu 

8119474431 

On November 16, 2017, the Defendant was found guilty after a jury trial, presided over 

by the Honorable Rose Marie Defino-Nastasi, of Murder of the First Degree, 18 Pa. C.S. § 

2502(a), as a felony of the first degree; Conspiracy to Commit Murder, 18 Pa. C.S. § 903; two 

(2) counts of Robbery (Inflict Serious Bodily Injury), 18 Pa. C.S. § 3701, each a felony of the 

first degree; two (2) counts of Kidnapping for Ransom, 18 Pa. C.S. § 2901, each a felony of the 

first degree; Violation of the Uniform Firearms Act (Firearms Not to be Carried without a 

License), 18 Pa.C.S. § 6106, as a felony of the third degree; Violation of the Uniform Firearms 

Act (Firearms not to be carried in Public), 18 Pa.C.S. § 6108, as a misdemeanor of the first 

degree; Possession of an Instrument of Crime, 18 Pa.C.S. § 907, as a misdemeanor of the first 

degree; Attempted Murder, 18 Pa. C.S. § 901 (a), as a felony of the first degree; and Aggravated 

Assault, 18 Pa. C.S. § 2 702, as a felony of the first degree. On that same date, the Defendant 

was sentenced to concurrent terms of life without the possibility of parole for the first degree 

murder and conspiracy to commit murder convictions and a consecutive ten (10) to twenty (20) 
years confinement for the attempted murder conviction. No further penalty was imposed for the 

remainder of the charges. 

On November 26, 2017, the Defendant filed a timely post-sentence motion challenging 

the weight and sufficiency of the evidence. 

On December 11, 2017, the Defendant's post-sentence motion was denied without a 

hearing. 

On January 4, 2018, the Defendant filed a timely Notice of Appeal with the Pennsylvania 

Superior Court. 

On January 28, 2018, the Defendant filed a Rule l 925(b) Concise Statement of Matters 

Complained of on Appeal, pursuant to an Order of the Court, claiming, verbatim, that: 

I. The adjudication of guilt is against the weight of the evidence and shocking to 

one's sense of justice where there was no physical evidence linking the defendant 

to the crimes, where the co-operating co-defendant was a corrupt and polluted 

source who had lied on previous occasions to the police, where the cell phone 

evidence was circumstantial and based upon an incomplete analysis and 

investigation of other calls and people associated with the co-operating codefendant, and where the convictions are based upon the preposterous theory that 

the defendant arranged for an abduction of the victims in front of his own home. 

II. The adjudication of guilt for First Degree Murder is based upon insufficient 

evidence where the defendant did not shoot the decedent and where the evidence 

that he intended to kill is derived solely from a co-operating co-defendant. 

2 
FACTS 

On April 17, 2014, the Defendant, Brandon McKelvey, Christopher Corley and Ken 

Thomas kidnapped Carl Johnson and Ryan Hardy, as part of a robbery scheme. 

1 During the 

course of the robbery, both men were shot. Johnson died as a result of his injuries. Hardy was 

injured, but survived. 

Ken Thomas testified that he lives in North Philadelphia and was friends with all of his 

co-defendants in this case. Thomas knew Brandon McKelvey as 'SK' since they were children. 

They grew up together in the Strawberry Mansion neighborhood of Philadelphia. Thomas knew 

Christopher Corley as 'C' since approximately 2008�2009. They lived in the same 

neighborhood. It was Corley who introduced him to the Defendant. Thomas knew the 

Defendant as 'NA' since 2014. Thomas knew Deforest Johnson as 'Big Huss'. Thomas testified 

that the Defendant was the only co-defendant, out of the group, who knew the decedent. 

Thomas admitted that he was involved in the kidnapping, robbery, and murder of the 

decedent and the attempted murder of Ryan Hardy on April 17, 2014, along with his codefendants. N.T. 11/08/17 at pp. 88-97. 

Thomas testified that it was the Defendant's idea to kidnap and rob the decedent for 

money and drugs and that all five of them agreed that it was a great idea. The group also 

planned to get the decedent's "connect."

2 Thomas testified that: "The original plan was for us to 

find an abandoned house, so we can take him to an abandoned house and see how much 

I Co-defendant Deforest Johnson filed a Motion for Severence, which was granted. Co-defendant Ken Thomas 

entered into an open guilty plea to murder of the third degree, kidnapping, conspiracy to commit robbery, VUF A 

charges, aggravated assault, possession of an instrument of crime, and avoiding apprehension. N .T. 11 /08/17 at pp. 

200-202. Thomas testified in the instant matter pursuant to a Memorandum of Agreement with the Commonwealth. 

He has not been sentenced yet. 

2 "Connect" referred to the person that supplied the decedent, a cocaine dealer, with cocaine. The five of them 

wanted to get the decedent to call his supplier so that they could rob the supplier of drugs and money as well. Id. at 

pp. 99-100. 

3 
information we can get out of him. When we get him, he was going to come with drugs We 

were going to take the drugs he got, get him to call his connect, and see ifNysare was to play a 

role as far as like questioning him and ifhe sees Nysare's face, he was supposed to kill him." 

The group planned to torture the decedent, to get information about his "connect," once they had 

him in the abandoned house. Ultimately, it was decided that the decedent would have to be killed 

so he wouldn't retaliate. Id. at pp. 98-103. 

Thomas testified that he met up with McKelvey, Corley, and DeForest Johnson at a 

hardware store at 29111 and Dauphin Streets in Strawberry Mansion on the morning of the 

incident. The four men purchased duct tape and saran wrap for the purpose of tying up the 

decedent. This was the Defendant's idea. The four then went to the Defendant's house. Thomas 

was driving his Grand Prix followed by the McKelvey, Corley, and DeForest Johnson in 

Johnson's big, green van. Thomas had a .38 caliber gun on his person and there was a .9 

millimeter gun in the van. The .9 millimeter gun belonged to Corley. 

The Defendant met the others at the van, and the group discussed their plan, outside of 

the Defendant's house on Queen Lane. The Defendant planned to invite the decedent over to the 

Defendant's house under the guise of purchasing drugs from him. The Defendant would ask the 

decedent to park his vehicle in the rear driveway when he arrived. Thomas would block the 

decedent's vehicle in the driveway with his Grand Prix. McKelvey and Deforest Johnson would 

grab the decedent from his car and place him into their van. Corley would drive the van and the 

Defendant would drive the decedent's car. 

To initiate the scheme, the Defendant called the decedent. The decedent was at the gym, 

so the two agreed that the decedent would call when he was finished. The group waited for 

approximately one ( l) to two (2) hours for the decedent to arrive. Thomas was positioned in his 

4 
Grand Prix to block the decedent's vehicle once he pulled into the driveway. McKelvey, Corley, 

and DeForest Johnson were inside the van, which was already parked in the Defendant's 

driveway. The group communicated via conference calls on their cell phones while they waited. 

Id. at pp. 104-121. 

The decedent called the Defendant and told him that he was leaving the gym and was on 

his way to the Defendant's house. At the same time, the Defendant's step-father arrived and told 

the Defendant that his friends had to remove the van from the driveway. The van exited the 

driveway and began circling the block. The decedent arrived, and instead of pulling into the 

driveway, parked his Camara on Knox Street, which was on the side of the Defendant's house. 

Thomas saw the decedent standing on the corner talking on the phone. The Defendant told the 

other four males that he was talking to the decedent and that they would have to abduct him 

where he was standing on the corner. Thomas waited for the van to circle around, and followed 

behind it. Id. at pp. 124-125. 

The van pulled next to the decedent's vehicle and Thomas' Grand Prix pulled behind it. 

McKelvey, Thomas, DeForest Johnson, and Corley exited their respective vehicles. Thomas and 

DeForest Johnson, at point of gun, grabbed the decedent and shoved him into the van. 

Unbeknownst to the group, another male, Ryan Hardy, had accompanied the decedent, and was 

seated in the decedent's vehicle. Thomas and McKelvey, at point of gun, grabbed Hardy out of 

the decedent's vehicle and shoved him in the van as well. Thomas returned to his Grand Prix 

and the Defendant entered the decedent's vehicle. The three vehicles (Thomas' Grand Prix, the 

van, and the decedent's Camara) initially drove off in the same direction, however, the van 

turned onto Hansberry Street and the Defendant continued driving straight with Thomas 

following behind him. McKelvey, Corley, DeForest Johnson, Hardy, and the decedent were 

5 
inside the van. A surveillance video was played for the jury from the Complete Grocery and 

Deli at the corner of Knox and Hansberry Streets. The van was visible turning left onto 

Hansberry Street while the decedent's vehicle and Thomas' vehicle continued straight on Knox 

Street. Thomas did not know where the van went after it turned onto Hansberry Street. Id. at pp. 

125-139. 

Thomas followed the Defendant back to the Defendant's house. The Defendant found 

drugs and jewelry in the decedent's vehicle. Thomas joined the Defendant in the decedent's 

vehicle and they drove to the Defendant's grandmother's house and remained there for 

approximately one (1) to two (2) hours. During this time, they were in phone contact with the 

co-defendants in the van. Id. at pp. 144-145. 

Corley informed Thomas that the decedent told him that the decedent had some drugs at 

his house, hidden in the basement above the washer. Thomas and the Defendant drove to the 

decedent's house3 at Frankford and Magee Avenues. No one was home, so they entered the 

house using the house key on the decedent's car key ring. The Defendant retrieved one-half of a 

kilo of cocaine, worth approximately twenty-thousand dollars ($20,000.00), which was hidden in 

the basement. Thomas took a large television. Additionally, the decedent had approximately 

nine (9) ounces of cocaine on him in the van. Thomas and the Defendant then drove to meet up 

with the van on Clarissa Street. Id. at pp. 146-152. 

The Defendant said that he knew a "duckey spot", along the 5600 block of Newtown 

A venue, where the group could dump the decedent and Hardy. Once the Defendant, Thomas, 

McKelvey, Corley, Johnson, the decedent, and Hardy arrived at the 5600 block of Newtown 

Avenue, Thomas took the jewelry that had been found in the decedent's car to Kensington to 

3 The decedent gave Corley, Johnson, and McKelvey his address, which Corley relayed to the Defendant and 

Thomas. 

6 
sell." The Defendant, McKelvey, Corley, DeForest Johnson, Hardy, and the decedent remained 

on Newtown Avenue. Id. at pp. 151-158. 

Later the same day, Thomas met up with the Defendant, McKelvey, Corley, and 

DeForest Johnson at Johnson's house in West Philadelphia. The cocaine was divided up equally 

among the group.

5 Thomas and the Defendant cleaned the decedent's vehicle, inside and 

outside, with bleach, to remove any fingerprints. The vehicle was left in West Philadelphia on 

Pennsgrove Street. McKelvey told Thomas that he had shot the decedent and Hardy with the .9 

millimeter gun. Id at pp. 158-168. 

Ryan Hardy testified that he and the decedent both had a child by the same woman. On 

April 17, 2014, Hardy met up with the decedent at Planet Fitness in the Frankford neighborhood 

of Philadelphia. After working out at the gym, Hardy accompanied the decedent to meet up with 

the decedent's friend. Hardy was driving because the decedent's arms were tired from his 

workout. Hardy parked near the intersection of Queen Lane and Hansberry Street in the 

Germantown section of the city. Approximately ten (10) to fifteen (15) minutes after he parked, 

a group of males with guns surrounded the vehicle. A van pulled up next to the driver's side 

door. The males, at point of gun, dragged the decedent and Hardy out of the vehicle and shoved 

them in the van. The males placed duct-tape on their mouths and eyes. The males also ducttaped Hardy's hands and feet together and put him in the back of the van. Hardy was hit in the 

head with a gun and was told by one of the males to put his head down. He heard the male say, 

"this ain't for you, it's for him ... this ain't for you, light skin." "You were at the wrong place at 

4 Thomas could not recall when the jewelry was handed to him, but the Defendant had given it to Thomas to sell. 

5 The Defendant, Johnson, Corley, Thomas, and McKelvey all received approximately "a couple thousand" dollarsworth of cocaine. · 

7 

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the time." Hardy heard the males repeatedly asking the decedent for money. N.T. 11/4/17 at pp. 

4-13, 26-41. 

Hardy further testified that the males were torturing him; cutting him on his wrists, neck, 

and ears. Hardy could not see what they were cutting him with because his eyes were covered 

with duct tape. Hardy heard three or four different voices but was not familiar with any of them. 

The males took Hardy's money, wallet, and cell phone. He felt like he was in the van for "a 

couple of hours" and the males were beating the decedent the whole time.6 

The van eventually came to a stop and the males threw Hardy from the van, Hardy was 

shot «four or five times" after being thrown out of the van. Hardy pulled the tape off of his eyes 

and saw the decedent on the ground, bleeding from his mouth, with duct tape over his eyes. 

Hardy started to ask for help from every car that passed by until the police arrived. Id at pp. 14- 

17, 43-45, 50-53. 

Police transported Hardy to Albert Einstein Medical Center where he remained for more 

than five days. Hardy was shot in the right forearm, left ribs, and back, He had razor cuts to his 

nose, left neck, left wrist, and left ear. Hardy was transferred to Moss Rehab facility for 

approximately two months because he was initially paralyzed from the waist down due to spinal 

injuries caused by a bullet. Hardy had to re-learn how to walk and will never walk without issue 

because the bullet could not be removed from his spine. Id. at pp. 18-22, 46-48. 

Michael Gutierrez testified that at approximately 5:42 p.m., on April 17, 2014, he heard 

gunshots while driving down Adams A venue from Front Street and crossing over Crescentville 

Road. Approximately one (1) minute later, while driving under a train-bridge on Newtown 

6 In his statement to homicide detectives, Hardy stated that he could hear the sound of a gun beating on the 

decedent's head. Hardy also stated that the males cut the duct tape off of him and re-taped him because they did not 

want fingerprints on the tape. N.T. 11/14/17 at p. 54-56. 

8 
A venue, Gutierrez saw a male laying on the ground and another male next to him, standing, 

pulling duct tape off his face and wrists. Gutierrez had to swerve to avoid hitting the two males. 

The male laying on the ground was curled in a fetal position, in a puddle of blood, with duct tape 

covering his face. The other male hobbled towards Gutierrez's van, saying repeatedly that he 

had been "hit", and needed to go to the hospital. Gutierrez, fearing more gunshots, drove past 

the train tracks, pulled over to the right on Godfrey Avenue

7, and called 911. N.T. 11/08/17 at 

pp. 8-11, 14-23. 

Denni Glenn testified that she was in a relationship with DeForest Johnson for 

approximately seven (7) years. Their relationship ended in September of 2014. Glenn testified 

that she was the owner of a green, 1997, Ford E-150 van with plate number JSY-9931. In April 

of 2014, her relationship with Johnson was on-and-off, but Johnson was permitted use of her van 

when he needed it. Glenn gave the van to Johnson after their relationship ended. N.T. 11/09/17 

at pp. 5-13. 

Ladashe Johnson testified that she is from the Germantown neighborhood of 

Philadelphia. Ms. Johnson was friends with Nadirah Alston; the Defendant's sister. She had 

known the decedent since 2007. In 2013, they began a romantic relationship. Ms. Johnson was 

still in a relationship with the decedent when he was murdered. At the time of his murder, the 

decedent had been living in the Kensington neighborhood of Philadelphia and driving a Carnaro. 

Ms. Johnson also knew Ryan Hardy to be a friend of the decedent. Id. at pp. 54-58. 

In 2014, prior to the decedent's murder, Nadirah Alston asked Ms. Johnson for the 

decedent's phone number for her brother, the Defendant. At the time, the decedent did not have 

his own phone and would take calls on Ms. Johnson's phone. Ms. Johnson told the decedent 

7 Newtown A venue is a short, one-way street between Adams and Godfrey A venues that merges into Godfrey 

Avenue. 

9 
about the request and she gave N adirah permission to give the Defendant her phone number. 

Thereafter, the Defendant would call Ms. Johnson's phone to get in contact with the decedent.8 

Ms. Johnson provided homicide detectives with the number that she had given Nadirah Alston to 

give to the Defendant. She also provided the number to the phone9 the decedent was using on the 

day he was murdered, and the number for the Defendant that appeared on her phone when he 

called. Ms. Johnson last spoke to the decedent on the day of his murder between 12:00 p.m. and 

1 :00 p.m. At that time, the decedent told her that he was leaving the gym and was on his way 

home to take a shower. Id. at pp. 58-69. 

Debra Holmes testified that she was living on the 3800 block of Pennsgrove Street in 

2014. On April 17, 2014 at approximately 7:00 p.m., Holmes looked out of her front window 

and saw two African-American males washing a Chevrolet Camaro. The two males left the 

Carnaro covered in a white substance. Holmes was the block captain, so her neighbors called her 

to complain about the car, because it had a white film over the outside, and the keys were sitting 

inside of it with a window open. Realizing the car was covered in bleach, 

10 Holmes called the 

police to report the suspicious vehicle on April 18, 2014. Id. at pp. 179-186. 

Aaron Smith testified that he met Brandon McKelvey in jail, in 2015, when Smith was 

incarcerated for a robbery conviction. Smith and McKelvey bonded when they discovered that 

they had mutual friends in North Philadelphia. McKelvey told Smith that he was worried 

because one of his friends was charged with a crime that McKelvey had committed with him. 

McKelvey told Smith that he didn't understand how his friend "Ken,' got caught, because it was 

done so perfectly. He also admitted that he was the shooter, and was fearful that if Ken 

8 The decedent was using his brother's phone on the day of the murder. 

9 This was the number to the decedent's brother's phone. The decedent had moved on to using his brother's phone 

after using Ms. Johnson's phone for a period. 

10 Ms. Holmes testified that the Camara smelled of bleach. 

10 
implicated him, he could face the death penalty. McKelvey told Smith that this crime was a 

robbery, kidnapping, and homicide. McKelvey said that one of his friends knew the decedent 

because he used to buy drugs from him, and that this friend was the person that set up the 

robbery. McKelvey said that he and his friends ordered drugs and waited for the decedent to 

make the delivery. When the decedent arrived, they boxed his vehicle in. They used two cars, a 

green van and another car. McKelvey and his friends kidnapped the decedent and another guy 

and put them in the green van. N.T. 11/13/17 at pp. 103-107. 

Smith further testified that McKelvey told him: "one of the guys cut one of the guy's 

faces and then they told where the drugs was at, where the rest of the drugs was at and he 

(McKelvey) said they drove to the northeast section of Philadelphia. Once the guys confessed 

where the drugs was at, he (McKelvey) pushed the guys out of the van, and opened fire on them 

because one of the guys said that they had to be put down because he (decedent), basically, knew 

the guy, the one who set it up." McKelvey also told Smith that he had used a .9 millimeter gun 

to shoot the decedent and Ryan Hardy. Id. atpp. 107-108, 136-142. 

Philadelphia Police Officer, John Madonna, testified that at approximately 5 :42 p.m., on 

April 17, 2014, he received a radio call regarding gunshots fired on the 5600 block of Newtown 

Avenue by Godfrey Avenue. Officer Madonna arrived on the scene approximately two to three 

minutes after receiving the radio call. Upon arrival, Officer Madonna got out of his police cruiser 

to help Officers Scarinci and Ringstaff put Ryan Hardy into their patrol wagon. The other male 

was unresponsive and had no pulse. His eyes and wrists were duct-taped, his face was bloody, 

and he appeared to have gunshot wounds to his chest and leg. The male was pronounced by 

medics, on scene, at approximately 6:00 p.m. There was a piece of duct tape on the ground next 

to where the patrol wagon had initially stopped, and there were several fired cartridge casings 

1 I 
(hereafter 'FCCs') on the ground around where the decedent had been laying. N.T: 11/08/17 at 

pp. 39-56, 61. 

Officer Madonna proceeded to the corner of Newtown and Godfrey Avenues, because he 

was familiar with the area, and knew there were surveillance cameras. Officer Madonna called 

the number for Burke Plumbing, located at that intersection, and was able to get the owner to 

supply Officer Butler of Northeast Detectives with the video footage. Id. at pp. 56-63. 

Philadelphia Police Officer, Daniel Butler, testified that he is a video retrieval officer for 

Northeast Detectives. Officer Butler retrieved the surveillance video from Burke Plumbing at 

5598 Newtown Avenue.

11 Id. at pp. 67-79. 

Sergeant William testified that on April 14, 2015, at approximately 3 :00 p.m., he and his 

partner stopped DeForest Johnson for driving with a broken brake light on the 2300 block of 

North 29th Street. Johnson was driving a green, 1997, Ford van with the license plate number 

JSY-9931. Sergeant Robbins' report of the incident listed the owner of the vehicle as Denni 

Glenn and the driver of the vehicle as DeForest Johnson. At the time, Johnson provided his 

address as 3804 Wyalusing Avenue. N.T. 11/09/17 at pp. 18-26. 

Philadelphia Police Officer, Brendan Donahue, testified that he was familiar with Ken 

Thomas from having seen him around the Strawberry Mansion neighborhood of Philadelphia. 

At approximately 1 :22 p.m., on April 15,2014, Officer Don�hue came into contact with Ken 

Thomas and the Defendant at 32nd and York Streets12 in that same neighborhood. Officer 

Donahue had not seen the Defendant before. Thomas and the Defendant were in a red, 2004 

Pontiac Grand Prix with license plate number JMG-0253. The Grand Prix was registered to 

11 The video was played for the jury. It showed the green van, Grand Prix, and red Camaro passing the intersection 

of Newtown and Godfrey just after the murder. 

12 This location was approximately one block from 3127 West Dauphin Street, the home address given to Officer 

Donahue by Ken Thomas. 

12 
Thomas. The Defendant was in the driver's seat and Thomas was sitting in the passenger seat. 

Id at pp. 34-39. 

Philadelphia Police Officer, Jeffrey McMahon, testified that he was assigned to the westend section of the Strawberry Mansion neighborhood of Philadelphia. Officer McMahon 

testified that he would see Ken Thomas and Christopher Corley in Strawberry Mansion 

approximately two (2) to three (3) times a week over the course of approximately two years. 

Philadelphia Police Officer, Ryan Dooling, testified that on April 18, 2014, at 

approximately 1: 1 S p.m., he received a radio call to investigate an automobile13 on the 3800 

block of Pennsgrove Street. When Officer Dooling ran the license-plate number, the car came 

back as stolen with a note instructing him to hold the car for fingerprinting. The information also 

indicated that the car was being sought by homicide detectives. Officer Dooling contacted the · 

homicide division and held the car until they arrived. The gray, 2010, Chevrolet Camara was 

covered in white residue. The keys were in the driver's seat and the windows were slightly open. 

The car was owned by the decedent. Id. at pp. 77-90. 

Philadelphia Police Officer, Craig Perry, testifiedthat he processed the crime scene at 

5600 Newtown Avenue on April 17, 2014. Officer Perry recovered five (5) FCCs, a bullet, 

several bullet fragments, 

14 and several pieces of duct tape from the crime scene. Four of the 

FCCs were discovered in the grass on the side of Newtown Avenue. The decedent's hands were 

bound together with duct tape and there was duct tape over his eyes. There was a high-impact 

divot in the ground underneath the body of the decedent, indicating that the decedent had been 

shot while he was laying on the ground. Id. at pp. 94-120. 

11 When a Philadelphia Police Officer gets a radio call for "investigate auto" it means that a civilian has noticed a 

suspicious vehicle and has called 911 to report it. 

14 The bullet fragments were discovered underneath the body of the decedent when he was removed from the street. 

13 
Philadelphia Police Officer, Robert Stott, testified as an expert in the field of firearms and 

ballistics evidence. Officer Stott identified the five (5) FCCs recovered from the scene as 

coming from a .9 millimeter, Luger firearm. Officer Stott determined that all five (5) FCCs were 

fired from the same .9 millimeter firearm. Officer Stott also examined a .9 millimeter bullet that 

was recovered from the ground underneath the buttocks of the decedent and a .9 millimeter bullet 

that was removed from the decedent's chest by the medical examiner. Officer Stott determined 

. 

that both bullets were fired from the same .9 millimeter firearm. Id. at pp. 157-175. 

Philadelphia Police Officer, Patrick Raytik, testified as an expert in the field of 

fingerprint comparison and analysis. Officer Raytik examined two palm print impressions and a 

fingerprint impression lifted from the decedent's Carnaro that was found on the 3800 block of 

Pennsgrove Street.15 Only one of the prints, a palm print from the exterior of the passenger-side 

rear window, was suitable for identification purposes. Officer Raytik determined that this palm 

print matched the palm of Ken Thomas. Id. at pp. 194-201. 

Philadelphia Homicide Detective; James Dunlap, testified as an expert in historical cell 

site analysis.

16 Detective Dunlap analyzed the data associated with five cellular phone numbers: 

( 484) 620- 7803 (billed in Brandon McKelvey's name to 2413 North 32nd Street); (215) 909-1127 

(billed to Zegregory Corley17 at 3548 North 13th Street); (267) 888-1883 (the Defendant's 

phone); (267) 288-8818 (Ken Thomas' phone); and (267) 300-8891 (the decedent's phone). 

Detective Dunlap determined the locations of these phones on April 17, 2014 in relation to 144 

West Queen Lane at approximately 2:00 p.m. (the time and location of the abduction); and 5600 

is Trial counsel stipulated to the fact that Officer Fidler lifted three latent print impressions from the Camaro found 

on the 3800 block of Pennsgrove Street: one from the exterior of the passenger-side, rear window; one from the top 

of the driver-side roof; and one from the driver-side, rear-view mirror. 

16 Historical Cell Site Analysis is the process through which the call data records for a phone are used to identify the 

potential location of the phone. 

17 Zegregory Corley is the brother of Christopher Corley. 

14 
Newtown Avenue at approximately 5:40 p.m. (the time and location of the homicide). N.T. 

11/13/17 at pp. 14-22. 

The phones attributable to McKelvey, Thomas, and Corley were all utilizing towers in 

the Strawberry Mansion neighborhood of Philadelphia between 9:04 a.m. and 10:41 a.m., on the 

day of the decedent's murder.

18 The decedent's phone and the Defendant's phone had a total of 

fifteen ( 15) connections with each other between 10:35 a.m. and 2:04 p.m. The phone 

attributable to Corley made eleven (11) calls utilizing towers within the area of the decedent's 

abduction between 12:11 p.m. and 1:58 p.m. The phone attributable to the Defendant made 

twenty-four (24) calls utilizing cell phone towers in the area

19 of the decedent's abduction 

between 9:43 a.m. and 2: 13 p.m. Thomas' phone made six (6) calls utilizing cell phone towers 

in the area of the decedent's abduction between 12:25 p.m. and 2: 17 p.m. Thomas' phone and 

the phone attributable to Corley called each other at 12:45 p.m., in the area of the decedent's 

abduction. That phone call lasted approximately sixty-nine (69) minutes. The same two phones 

also had a sixteen-and-a-half (16.5) minute call to each other at 1 :58 p.m., and an approximately 

fifty-one (51) minute call to each other at 2:33 p.m., both in the area of the abduction. Id. at pp. 

22-52. 

The phone attributable to McKelvey was utilizing cell-phone towers in the area of 5600 

Newtown Avenue at 5:13 p.m., 5:16 p.m., 5:45 p.m., and 5:49 p.m. The phone attributable to 

Corley made five (5) calls utilizing cell phone towers in the area of 5600 Newtown Avenue 

between 4:35 pm. and 5:45 p.m. The phone attributable to the Defendant made six (6) calls 

11 While the Court acknowledges that McKelvey, Thomas, and Corley all lived in the Strawberry Mansion area, the 

three phones were geographically located in the same area at the same time, thus corroborating Thomas' testimony 

that the three men went to a hardware store in the area together, on the morning of the murder, to purchase duct-tape 

and saran wrap with which to bind the decedent. 

19 It is noted that the Defendant lives in the area, however, the twenty-four (24) calls were made by a phone utilizing 

the same cell-phone tower that was utilized by the Corley phone when it made eleven (11) calls between 12:11 p.rn. 

and I :58 p.rn. 

15 
utilizing cell phone towers in the area of 5600 Newtown Avenue between 4:37 p.m. and 5:44 

p.m. At 5:44 p.m., that same phone. was using the cellular phone tower that McKelvey's phone 

used at 5:45 p.m. Thomas' phone utilized cell phone towers in the area of 5600 Newtown 

Avenue at approximately 4:32 p.m., but was located in the Kensington neighborhood of 

Philadelphia at approximately 5:40 p.m.

20 Id. at pp. 27-37. 

Thomas' phone and the Defendant's phone were utilizing cell phone towers in the area of 

the 3900 block of Pennsgrove Street between 6:43 p.m. and 7:26 p.m.

21 In addition, the phones 

attributable to McKelvey, Thomas, Corley, and the Defendant all used the same cell phone tower 

at 39th Street and Lancaster Avenue, in the area of the 3900 block of Pennsgrove Street, between 

6:38 p.m. and 8:04 p.m. Id. at pp. 41-52. 

Dr. Albert Chu testified as an expert in the field of forensic pathology. Dr. Chu analyzed 

the autopsy report for the decedent that had been prepared by Dr. Marlon Osbourne and came to 

his own conclusion regarding the cause and manner of the death of the decedent. The decedent 

had four gunshot wounds: one bullet entered the left side of the decedent's upper back, fracturing 

one of his vertebrae

22; one bullet entered the left side of the decedent's back, hitting his spine, his 

aorta, and trachea before exiting the upper right side of his chest; one bullet entered the right side 

of the decedent's lower back, hitting the decedent's liver and stomach before exiting the front of 

his upper abdomen; and one bullet entered and exited the decedent's left thigh, damaging soft 

tissue. The decedent had two lacerations to the scalp on the right side of the back of his head, a 

number of straight cuts on his forehead, a straight cut on his left forearm, a scrape on his right 

elbow, and a laceration on the back of his right thigh. The injuries to the decedent's head were 

20 Ken Thomas testified that after he dropped the Defendant off at the 5600 block of Newtown Avenue, he drove to 

the Kensington neighborhood of Philadelphia because he "had a house down there." N.T. 11/08/17 at pp. 155-156. 

21 This is the area where the decedent's vehicle was recovered and where co-defendant DeForest Johnson lived. 

n This bullet was the only one removed from the decedent's body by the medical examiner. 

16 
consistent with being hit with a heavy object. No drugs or alcohol were found in the decedent' s 

system. Dr. Chu testified that the cause of the decedent's death was multiple gunshot wounds 

and the manner of his death was homicide. N.T. 11/13/17 at pp. 152-164. 

Dr. Chu also examined the medical records of Ryan Hardy from Albert Einstein Medical 

Center. Dr. Chu testified that Hardy had two gunshot wounds: one to his right forearm that 

entered and exited and one on the left side of his torso. Hardy also had lacerations on his "left 

upper extremity" and scrapes on his right ankle. Id. at pp. 164-165. 

Trial counsel stipulated to the fact that DeForest Johnson was arrested on this matter on 

March 8, 2016 at approximately 7:11 p.m. in Newark, New Jersey. At the time of his arrest, 

Johnson was exiting a green, Ford E-150 van (plate number JSY-9931 ), registered to Denni 

Glenn. The van was towed and photographed. Trial counsel also stipulated to the fact that 

Aaron Smith and Brandon McKelvey were in the same prison unit twice in 2016. McKelvey and 

Smith shared a cell from April 11, 2016 to April 22, 2016 and from October 27, 2016 to 

November 15, 2016. Lastly, trial counsel stipulated to the fact that the Defendant, Brandon 

McKelvey, and Christopher Corley did not have a valid license to carry a firearm. N.T. 

11/09/17 at pp. 3-4, N .T. 11/14/17 at pp. 99-101. 

ANALYSES 

ISSUE I 

The adjudication of guilt is against the weight of the evidence and shocking to one's 

sense of justice where there was no physical evidence linking the defendant to the 

crimes, where the co-operating co-defendant was a corrupt and polluted source who 

had lied on previous occasions to the police, where the cell phone evidence was 

circumstantial and based upon an incomplete analysis and investigation of other 

17 
calls and people associated with the co-operating co-defendant, and where the 

convictions are based upon the preposterous theory that the defendant arranged for 

an abduction of the victims in front of his own home. 

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 witnesses. Com. v. Devine, 26 

A.3d 1139, 1147 (Pa. Super. 2011), app. denied, 42 A.3d 1059 (Pa. 2012) (citations omitted). 

"(A) true weight of the evidence challenge concedes that sufficient evidence exists to sustain the 

verdict but questions which evidence is to be believed." Com. v. Thompson, 106 A.3d 742, 758 

(Pa. Super. 2014). Accordingly, "[o]ne of the least assailable reasons for granting or denying a 

new trial is the lower court's conviction 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." Com. v, Clay, 64 A.3d 

I 049, 1055 (Pa. 2013). A trial judge should not grant a new trial due to "a mere conflict in the 

testimony or because the judge on the same facts would have arrived at a different conclusion." 

Clay, 64 A.3d at 1055. Instead, the trial court must examine whether "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." Id. at 1055. Only where the jury verdict "is so 

contrary to the evidence as to shock one's sense of justice'' should a trial court afford a defendant 

a new trial. Id. 

The jury determined the credibility of the evidence in this case after hearing 

overwhelming direct and circumstantial evidence that the Defendant was a principal actor in a 

conspiracy to kidnap, rob, and murder the decedent and Ryan Hardy. 

The Defendant claims that there was no physical evidence linking the Defendant to the 

crimes. Physical evidence is not required for a jury to find guilt beyond a reasonable doubt. See 

18 
Com .. v. Kitchen, 181 A.3d 337, 346 (Pa. Super. 2018), citing Com. v. Wise, 171 A.3d 784, 790 

(Pa. Super. 2017) ("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 beyond a 

reasonable doubt by means of wholly circumstantial evidence.") In addition, the "[g[eneral rule 

of law pertaining to the culpability of conspirators is that each individual member of the 

conspiracy is criminally responsible for the acts of his co-conspirators committed in furtherance 

of the conspiracy. 18 Pa.C.S.A. § 903_;, Com. v. Wayne, 720 A.2d 456, 463-64 (Pa. 1998). 

Therefore, the physical evidence found, namely, the palm print of co-conspirator Ken Thomas on 

the decedent's vehicle, is also evidence against the Defendant. 

The jury determined credibility in this case. The jury heard testimony from Ken Thomas 

that the Defendant devised the scheme to commit this crime, as he alone was the· only member of 

the group that knew the decedent. The Defendant recruited the co-conspirators and gave orders 

on their various roles. The fact that the Defendant was the mastermind of this criminal enterprise 

is borne out by direct arid circumstantial evidence. 

The direct evidence was provided by Thomas, wherein he details the movements of the 

conspirators on the day of the decedent's kidnapping, robbery, and murder. The cell-site analysis 

and video evidence, as well as the testimony provided by Ryan Hardy, Ladashe Johnson, Aaron 

· Smith, Debrah Holmes, Officer Robert Stott, and Detective Dunlap corroborate Thomas' account 

of the movements of each of the conspirators on the date of the incident. 

Ryan Hardy described parking the decedent's vehicle on the corner of Queen Lane and 

Knox Street, whereupon a group of males surrounded the vehicle, pulled him and the decedent 

from the vehicle, and shoved them in a van. This corroborated Ken Thomas' testimony 

19 
regarding the circumstances surrounding the abduction of the decedent and Hardy. Moreover, the 

cell-site analysis confirms that, not only was the Defendant's phone in the area of the abduction, 

but that it was in contact with the decedent's phone 15 (fifteen) times between 10:35 a.m. and 

2:04 p.m. Additionally, Corley's phone and Thomas' phone were utililzing cell towers in the 

same area during the same time frame. Moreover, the video evidence shows the vehicles of 

Deforest Johnson, Thomas, and the decedent all pass through an intersection located on the 

corner of t�e abduction just after the abduction. 

Thomas testified that the decedent and Hardy were taken to a "duckey" spot to be killed 

and dumped. Thomas met the others at this spot, located at 5600 Newtown A venue, at 

approximately 4:30 p.m., but then left to go fence the stolen jewelry in Kensington. Cell-site 

analysis showed that the phones attributable to Thomas, the Defendant, Corley, and McKelvey 

were all utilizing cell phone towers in the area of 5600 Newtown A venue at approximately 4 :30 

p.m. Thomas' phone then traveled to Kensington, while the other conspirators' phones remained 

at 5600 Newtown Ave., until the time of the murder at 5:45 p.m. Moreover, the video evidence 

showed the vehicles of the decedent and Deforest Johnson pass through the intersection of 

Newtown and Godfrey A venues just after the murder, Furthermore) the decedent and Hardy were 

found at 5600 Newtown Avenue moments after the murder. 

Thomas testified that he and the Defendant dumped the decedent's vehicle at the 3900 

block of Pennsgrove Street following the murder, and that they wiped it down with bleach. The 

cell-site analysis showed that both the defendant's phone and Thomas' phone were utilizing cell 

towers in the area of the 3900 block of Pennsgrove between 6:43 p.m. and 7:26 p.m. on the date 

of the incident. 

20 
Thomas testified that all of the conspirators met at DeForest Johnson's house on 39th and 

Lancaster after the murder to divide the proceeds from the robbery. Cell-site analysis determined 

that the cell phones attributable to Thomas, the Defendant, Corley, and McKelvey were all 

utilizing the same cell phone tower located at 39th and Lancaster between 6:38 p.m. and 8:04 

p.m.23 

As to the Defendant's claim that the cooperating co-defendant was a corrupt and polluted 

source, the jury was instructed on accomplice testimony, bias, and crimen falsi with respect to 

evaluating the credibility of Ken Thomas. The jury is presumed to follow the court's instructions 

on the law. See Com. v. Chmiel, 30 A.2d 1111, 1184 (Pa. 2011) ("The law presumes that the 

jury will follow the instructions of the court." citing Com. v. Spotz, 896 A.2d at 1224 (citation 

omitted); see also Com. v. 0 'Hannon, 557 Pa. 256, 732 A.2d 1193, 1196 (1999) ("Absent 

evidence to the contrary, the jury is presumed to have followed the trial court's instructions."). 

The jury heard testimony from Ladashe Johnson, the decedent's girlfriend, that she spoke 

to the decedent at approximately 12:00 p.m. on the day of his murder. The decedent told 

Johnson that he was on his way home from the gym. This corroborated Ken Thomas' testimony 

. that when the Defendant called the decedent to get him to bring drugs to the Defendant's house, 

the decedent told the Defendant that he had just left the gym and was on his way to meet him. 

The jury heard testimony from Debra Holmes that she observed two African American 

males washing a Chevrolet Camaro on the 2800 block of Pennsgrove Street at approximately 

7:00 p.m., in the evening, after the decedent's murder. Holmes testified that the car smelled of 

bleach and was covered in a white substance. This corroborated Ken Thomas' testimony that he 

23 39th and Lancaster is approximately one block from 39th and Pennsgrove Street. 

21 
and the Defendant disposed of the decedent's vehicle on the 3800 block of Pennsgrove Street 

after wiping it down with bleach. 

The jury heard testimony from Officer Robert Stott that the FCCs recovered from the 

crime scene and the decedent's body were fired from the same .9 millimeter Luger firearm. This 

corroborated Ken Thomas' testimony that the decedent had been shot with a .9 millimeter gun 

that belonged to co-conspirator Christopher Corley. 

Defendant claims that the "the cell phone evidence was ... based upon an incomplete 

analysis and investigation of other calls and people associated with the co-operating codefendant." The jury heard evidence that the phone attributable to the Defendant was using cell 

phone towers in the area of the decedent's abduction, the area of the decedent's murder, and the 

area where the co-conspirators reconvened after the murder of the decedent. The phone 

attributable to the Defendant was utilizing cell phone towers at times and locations that directly 

corresponded with the timeline and locations set out by Ken Thomas as he was depicting the 

events of the day including: the purchase of supplies, the kidnapping, the murder, and the 

reconvening of the co-conspirators after the murder. Finally, the defendant's phone and the 

decedent's phone were in contact fifteen (15) times on the morning of the murder. 

Defendant claims that "the convictions are based upon the preposterous theory that the 

defendant arranged for an abduction of the victims in front of his own home." Actually, this was 

not the Defendant's original plan. The original plan was to kidnap the decedent in the rear 

driveway of the Defendant's house, which was a secluded area. That plan was thwarted by the 

Defendant's step father, when he told the Defendant that his friends had to remove their vehicle 

from the rear driveway. As a result, at the last minute, the Defendant told his co-conspirators that 

they would have to kidnap the decedent from the corner where the decedent was standing by his 

22 
car. Furthermore, this "preposterous theory" was based on the testimony of two eyewitnesses, 

videotape evidence, and cell site analysis. 

The evidence showed that the Defendant and his cohorts concocted a plan to lure the 

decedent to the Defendant's house where the group, who lie in wait, then abducted the decedent 

and Hardy at gunpoint, tortured them, robbed them, shot them, disposed of the decedent's 

vehicle, and divided the proceeds. 

Based on the foregoing, as well as the evidence discussed in the sufficiency analysis 

below, the jury's verdict does not shock one's sense of justice. Therefore the verdict was not 

against the weight of the evidence. 

ISSUE II 

The adjudication of guilt for First Degree Murder is based upon insufficient 

evidence where the defendant did not shoot the decedent and where the evidence 

that he intended to kill is derived solely from a co-operating co-defendant. 

"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 bythe fact-finder unless the 

evidence is so weak and inconclusive that as a matter oflaw no probability of fact 

may be drawn from the combined circumstances. The Commonwealth may 

23 
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, [the] 

Court is required to give the prosecution the benefit of all reasonable inferences to 

be drawn from the evidence. 

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." 

Com. v. Slocum, 86 A.3d 272, 275-76 (Pa. Super. 2014) (citing Com. v. Bostick, 958 A.2d 543, 

560 (Pa. Super. 2008), app. denied, 987 A.2d 158 (Pa. 2009) (quoting Com. v. Smith, 956 A.2d 

1029, 1035-36 (Pa. Super. 2008) (en bane) (emphasis added)). 

"To sustain a conviction for first-degree murder, the Commonwealth must prove that: (I) 

a human being was unlawfully killed; (2) the accused was responsible for the killing; and (3) the 

accused acted with malice and a specific intent to kill." Com. v. Williams, 176 A.3d 298, 306-07 

(Pa. Super. 2017). First-degree murder is an intentional killing, i.e., a "willful, deliberate and 

premeditated killing." 18 Pa.C.S. § 2502(a), (d). "A jury may infer malice ... based on the 

defendant's use of a deadly weapon on a vital part of the victim's body." Id. at 308 (citing Com. 

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v, Hitcho, 633 Pa. 51, 123 A.3d 731, 746 (2015)). "Specific intent to kill may be inferred by the 

use of a deadly weapon upon a vital organ of the body." Com. v. Murray, IV, 623 Pa. 506, 529 

(Pa. 2013) (citing Com.v. Spell, 61 lPa. 584, 28 A.3d 1274, 1278 (2011)). "That this 

presumption is a reasonable one founded on human experience is obvious: one does not normally 

use a deadly weapon on a vital part of another's body unless he intends to kill." Com. v. 0 'Searo, 

352 A.2d 30, 37 (Pa. 1976). 

Section 903 of the Crimes Code sets forth the crime of conspiracy. 

"(a) Definition of conspiracy. - A person is guilty of conspiracy with another 

person or persons to commit a crime if with the intent of promoting or facilitating 

its commission he: 

(1) agrees with such other person or persons that they or one or more of 

them will engage in conduct which constitutes such crime or an attempt or 

solicitation to commit such crime; or 

(2) agrees to aid such other person or persons in the planning or 

Commission of such crime or of an attempt or solicitation to commit 

such crime." 

18 Pa.C.S. § 903. 

"To sustain a conviction for criminal conspiracy, the Commonwealth must establish the 

defendant: 1) entered into an agreement to commit or aid in an unlawful act with another person 

or persons; 2) with a shared criminal intent; and 3) an overt act was done in furtherance of the 

conspiracy." Com. v. Devine, 26 A.3d 1139, 1147 (Pa.Super.2011). "The conduct of the parties 

and the circumstances surrounding such conduct may create a web of evidence linking the 

accused to the alleged conspiracy beyond a reasonable doubt." Id. The conspiratorial agreement 

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"can be inferred from a variety of circumstances including, but not limited to, the relation 

between the parties, knowledge of and participation in the crime, and the circumstances and 

conduct of the parties surrounding the criminal episode." Id., Feliciano, supra at 25-26, Com. v. 

Watley, 2013 PA Super 303, 81 A.3d 108, 115-16 (2013). The "[gjeneral rule oflaw pertaining 

to the culpability of conspirators is that each individual member of the conspiracy is criminally 

responsible for the acts of his coconspirators committed in furtherance of the conspiracy. 18 

Pa.C.S.A. § 903." Com. v. Wayne, 720 A.2d 456, 463-64 (Pa. 1998). 

"All co-conspirators to a murder may be found guilty of first-degree murder, regardless 

of which person actually inflicted the wound which resulted in death." Com. v. Small, 741 A.2d 

666. 672 (Pa. 1999). See Com. v, Gibson, 688 A.2d 1152, 1167-68 (Pa. 1997) (finding that the 

"Court properly instructed on accomplice liability in prosecution for first degree murder by 

stating that person is guilty of a crime if he is an accomplice of another person who commits the 

crime and that he is an accomplice if, with the intent of promoting or facilitating the commission 

of the crime, he solicits, commands, encourages. or requests the other person to commit it, or he 

aids, agrees to aid, or attempts to aid the other person in planning or committing."). See Com. v. 

Patterson, 91 A.3d 55, 66- 7 (Pa. 2014) (finding that "conviction for first-degree murder as a 

conspirator was supported by confessed shooter's testimony that he killed victim at request of 

defendant and another co-conspirator, who told shooter they wanted victim killed because he was 

a snitch, by evidence that shotgun used in killing had been traded to defendant in exchange for 

drugs, and by evidence of a series of phone calls in which defendant instructed shooter or 

other co-conspirator to "take care of' or "deal with" the victim once defendant gave the word. 18 

Pa.C.S.A. § 2502(a)."). 

Viewing the evidence in the light most favorable to the Commonwealth as verdict 

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winner, the Commonwealth presented sufficient evidence to establish that the Defendant 

conspired with Ken Thomas, Brandon McKelvey, and Christopher Corley to murder the 

decedent. 

The Commonwealth presented evidence from Ken Thomas that the plan to commit this 

crime was devised by the Defendant. It was the Defendant alone who had a connection to the 

decedent. Since the decedent knew the Defendant, the Defendant decided that the decedent 

needed to be killed. Therefore, the Defendant had the specific intent to kill the decedent. Under 

the doctrine of conspiracy, it matters not whether the Defendant actually fired the gun. It was 

agreed to by the members of the conspiracy that a killing would be part of their scheme, so as to 

avoid apprehension because the decedent could identify the Defendant. But for the Defendant's 

involvement as the principal mastermind in this conspiracy, the kidnapping, robbery, and murder 

would not have occurred. 

The Commonwealth presented corroborative evidence of the defendant's connection to 

the decedent by way of evidence that the Defendant initially obtained the decedent's phone 

number by having his sister, Nadirah Alston, ask Ladashe Johnson for it. Ladashe Johnson 

testified that the Defendant called the decedent on her phone. 

The Commonwealth presented evidence that the defendant was part of a conspiracy that 

involved Corley, McKelvey and Thomas by way of circumstantial evidence obtained from the 

phone records. The phone attributable to the Defendant made fifteen (15) connections to the 

decedent's phone between 10:35 a.m. and 2:04 p.m. on the day of the decedent's murder. The 

phone attributable to the Defendant made twenty-four (24) calls utilizing cell phone towers in the 

area of the decedent's abduction between 9:43 a.m. and 2:13 p.m. The phone attributable to 

Christopher Corley was using the same cell phone tower as the Defendant's phone for eleven 

27 
(11) calls made between 12: 11 p.m. and 1 :58 p.m. The phone attributable to the Defendant made 

six (6) calls utilizing cell phone towers in the area of 5600 Newtown Avenue between 4:37 p.m. 

and 5:44 p.m. on the day of the decedent's murder. At 5:44 p.m. that same phone was using the 

same cellular phone tower that Brandon McKevley's phone was using at 5:45 p.m. The phone 

attributable to the Defendant and Ken Thomas' phone were utilizing cell phone towers in the 

area of 3900 Penns grove Street between 6:43 p.m. and 7:26 p.m. that same day. Lastly, the 

phones anributable to McKelvey, Corley, Thomas, and the Defendant all used the same cell 

phone tower at 39th Street and Lancaster Avenue, in the area of the 3900 block of Pennsgrove 

Street, between 6:38 p.m. and 8:04 p.m. All of these locations corroborate Ken Thomas' 

testimony of the co-conspirators' movements on the day of the decedent's murder. 

Based on the foregoing and the reasonable inferences deduced therefrom, the 

Commonwealth established beyond a reasonable doubt, by both direct and circumstantial 

evidence that the Defendant was guilty of first degree murder . 

• CONCLUSION 

Based on the foregoing, 

the judgment of sentence of the trial court should be affirmed. 

By the Court: 

Rose Marie Defino-Nastasi, J. 

28 
Commonwealth v. Nysare O'Neil O Alston 

CP-5l-CR-0007416-2016 

CP-5I-CR-0007420-2016 

Opinion 

Proof of Service 

I hereby certify that I 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: 

Appellant: 

Type of Service: 

Counsel: 

Type of Service: 

District Attorney: 

Type of Service: 

Date: 06/06/2018 

Mr. Nysare O'Neil O Alston, JU 5071 

SCI Benner Township 

301 Institution Drive 

Bellefonte, PA 16823 

() Personal (x) First Class Mail () Other, Please Specify: 

Gary Sanford Server, Esquire 

52103 Delaire Landing 

Philadelphia, PA 19114 

() Personal (x) First Class Mail () Other, Please Specify: 

Philadelphia District Attorney's Office 

Appeals Unit 

Widener Bldg. 

3 South Penn Square . 

Philadelphia, PA 19107 

( ) Personal () First Class Mail (x) Inter-Office 

ose Marie DeFino-Nastasi