J-S52021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RONALD DAVIS,

Appellant No. 2042 EDA 2015

Appeal from the Judgment of Sentence April 10, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0000915-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER, *JJ. 

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 22, 2016

Appellant, Ronald Davis, appeals nunc pro tunc from the April 10, 

2012 judgment of sentence entered in the Court of Common Pleas of 

Philadelphia County (“trial court”) following his convictions of aggravated 

assault, violation of the uniform firearms act (“VUFA”), and possession of an 

instrument of crime (“PIC”).1 Appellant challenges the sufficiency and 

weight of the evidence, admission of a stipulation, and trial counsel’s 

ineffectiveness. Upon review, we affirm.

The trial court summarized the testimony as follows.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702, 6108, and 907, respectively. 
J-S52021-16

- 2 -

[]Philadelphia Police Officer Anthony Mergiotti testified that on 

July 7, 2008, around 6:20 p.m., he received a phone call for a 

report of a shooting at 2050 Gerritt Street in South Philadelphia. 

Upon arrival, the officer located victim, Freddie Mears [(“the 

victim”)], who was suffering from a gunshot wound and lying on 

the living room floor of a house. The victim was awake and 

responsive, but he did not provide any flash information at that 

time. The victim was shot in the buttock and was transported by 

Medic to Jefferson Hospital for the gunshot wound. The officer 

wrote in his 75-48 police paperwork that the victim had stated at 

that time that he was shot from behind by an unknown person. 

At trial, the victim did not “navigate back and forth” in regard to 

who had shot him. Instead, he unequivocally testified that 

[Appellant] was the shooter, and explained why he was reluctant 

to tell police who shot him and why he chose not to identify 

[Appellant] at the preliminary hearing. The victim[] first 

admitted that he has in the past been convicted of forgery, 

burglary, and possession of a controlled substance. When the 

shooting occurred in 2008, he worked as a “handyman” in the

neighborhood by turning on gas, electric, water, and cable for 

people who had their services shut off. On July 7, 2008, the 

victim received a phone call from [Appellant] requesting that the 

victim turn on [Appellant’s] electric. The victim told [Appellant] 

he could not do it at that time because he was busy. During the 

conversation, the victim retorted, “If you can’t wait, get 

somebody else to do it.” The victim believed that [Appellant] 

took this comment as a sign of disrespect and asked the victim, 

“Well, where are you at?” The victim told him, “I’m on 20th and 

Gerritt,” which was a friend’s house. When the victim was 

finished working at his friend’s house, he was standing outside 

that location when he noticed [Appellant] drive through the block 

in a truck. [Appellant] then came back around the block, this 

time as the passenger in the truck, and the truck drove up to the 

next hundred block of Gerritt Street. [Appellant] got out of the 

truck and walked up to the victim. The victim asked, “Yo, what’s 

going on?” [Appellant] pulled a silver gun out of his pants. The 

victim questioned, “Oh, you going to pull a gun out on me?” The 

victim then turned around, whereupon [Appellant] shot him in 

his buttock. [Appellant] ran, jumped in the truck, and the truck 

pulled off. The victim walked back to his friend’s house, and told 

him “I been shot. Call the cops.” The police and ambulance 

came.
J-S52021-16

- 3 -

Candidly, the victim admitted that he did have heroin in his 

system when he was shot, but testified that he had a clear head 

when questioned by Detective McKenna at Jefferson Hospital. 

The victim did not initially tell Detective McKenna who shot him 

because he was going to “take care of matters in [his] own 

hands.” Nevertheless, at the time of the initial [s]tatement, the 

victim did describe [Appellant] and his age. Later in the same 

statement, the victim admitted that he knew who shot him, but 

wasn’t “saying,” then added “I don’t know his real name. I know 

he goes as Bilal . . . My brother knows his name. I think his 

name is Ronald.” The victim told the Detective that he would be 

able to identify [Appellant] if he saw him again. [FN1.]

[Appellant] was never picked up and arrested for the crime in 

2008. However, in 2010, the victim was transported to South 

Detectives to speak to Detective Johnson. The Detective asked 

the victim about the 2008 shooting and showed the victim a 

photo array of six or seven suspects. At that time, the victim 

immediately picked out [Appellant] as the person who shot him.” 

The victim testified that he had known [Appellant] for a long 

time because he had been doing work on and off for him for a 

while. When asked, “When did you first meet [Appellant], do 

you think?” The victim answered, “I think it was in school.” 

At the preliminary hearing, the victim refused to identify 

[Appellant], but explained at trial that he had lied at the 

preliminary hearing because he still wanted to take matters into 

his own hands. [FN3.] The victim explained at trial “. . . I know 

if I did [take matters into my own hands], you know, I probably 

would have been in jail for the rest of my life. [FN4.] 

[Appellant] also testified. He began by explaining that he was, 

at the time of this trial, serving a 5 to 10 year sentence for 

aggravated assault in which [he] pleaded guilty for shooting his 

brother-in-law. He first testified that his brother-in-law “pulled a 

gun out on [him][,] . . . we wrestled for it[,] . . . he got shot in 

the leg[,] and I got time for it.” Later, [Appellant] admitted that 

he confronted his brother-in-law early in the morning at a bus 

stop at 20th and Moore Streets, asked him ‘What’s up with you 

and my brother, Brian?”, and the victim accused him of shooting 

him. [Appellant] pled guilty to the facts of pulling out a nickel 

plated gun, shooting his brother-in-law in the right leg, and firing 

at his nephew. [Appellant] testified that he only pled guilty to 

the crime because he did not want to get a lot of jail time. 
J-S52021-16

- 4 -

FN1. Detective Michael McKenna confirmed the victim’s testimony. 

Detective McKenna also testified that the victim was alert, in pain, but 

talkative and coherent, although initially a little reluctant to tell the 

Detective what happened. On [the] first page of the [s]tatement, 

when asked, “Who was the guy?”, the victim said “I don’t know him.” 

When asked, “Have you ever seen him before?”, the victim stated, 

“No.” Later in the [s]tatement, when asked, “Do you know who shot 

you?”, the victim replied, “I know, but I ain’t saying.” When asked 

why that person shot him, the victim replied that it was “[b]ecause I 

didn’t turn his electric on. I was doing work for him.” When asked, 

“Are you going to tell me his name?” he answered, “I don’t know his 

real name. I just know that he goes by Bilal, Bilal. My brother knows 

his name. I think his name is Ronald. I don’t know his last name.

Detective Eric Johnson also confirmed the victim’s testimony. The 

Detective explained that, when the victim circled the photo array of 

[Appellant], he circled so hard as if he was trying to rip it because he 

was angry and stated clearly, “That’s the guy that shot me.” The 

victim indicated that it was “Bilal” nickname, first name “Ronald” that 

shot him. He also recalled going to the same high school with 

[Appellant] but different grades. The victim against explained that he 

did work for [Appellant].

FN3. In a phone call from prison to his wife that was later played in 

court by the Commonwealth, the victim told her that everything 

worked out at the preliminary hearing, which meant that he wasn’t 

going to press charges and would take matters into his own hands.

FN4. The stipulations read into the record were as follows: the 

Commonwealth introduced a Pennsylvania State Police document to 

prove that [Appellant] did not have a valid license to carry a firearm in 

PA and did not have a valid sportsman’s firearm permit; the 

Commonwealth admitted the phone recording [Appellant] made to his 

wife while in prison and after the preliminary hearing; and the 

Commonwealth admitted the Jefferson Hospital medical records into 

the record which showed that, on July 7, 2008, the victim was treated 

for a gunshot wound to his buttock.

Trial Court Supplemental Opinion, 10/13/15, at 3-7 (internal citations 

omitted) (footnote 2 omitted).

At the conclusion of the jury trial on February 27, 2012, Appellant was 

convicted of aggravated assault, VUFA, and PIC. On April 10, 2012, 

Appellant was sentenced to 10 to 20 years for aggravated assault, a 

consecutive period of 21⁄2 to 5 years for VUFA and, concurrent to the VUFA 
J-S52021-16

- 5 -

sentence, 21⁄2 to 5 years for PIC. Appellant did not file post-sentence 

motions or a direct appeal.

Appellant filed a timely pro se PCRA petition on March 6, 2013. After 

the trial court appointed counsel, Appellant filed an amended PCRA petition 

requesting reinstatement of his direct appeal rights. The trial court granted 

Appellant the right to appeal nunc pro tunc on June 25, 2012. Appellant 

filed a notice of appeal on July 7, 2015. On July 15, 2015, the trial court 

directed Appellant to file a concise statement of matters complained of on 

appeal within 21 days. The trial court entered an opinion on August 12, 

2015, noting that Appellant failed to comply with the trial court’s order of 

July 15, 2012; therefore, Appellant waived all issues on appeal. Counsel for 

Appellant requested an extension to file a concise statement, which the trial 

court granted on August 17, 2015. Appellant filed a concise statement on 

August 27, 2015. The trial court filed a supplemental opinion on October 13, 

2015.

Appellant raises four issues on appeal.

I. Whether the evidence presented at trial was sufficient to convict 

the Appellant of all charges where the verdicts were based on an 

identification made by a witness who navigated back and forth in 

statements to police, testimony at the preliminary hearing, and 

during trial about whether [Appellant] committed the offense.

II. Whether the verdicts were against the weight of the evidence 

where the jury heard testimony from one witness who said he 

did not know who committed the offense, to he did know the 

offender, back to he did not know the offender, particularly 

where the witness has been convicted of multiple forgery and 

burglary offenses.

III. Whether the trial court erred in admitting the evidence of 

[Appellant’s] convictions for Violation of the Uniform Firearms 
J-S52021-16

- 6 -

Act where trial counsel failed to acknowledge a stipulation on the 

record, where no custodian of record testified regarding the 

quarter sessions file, and where such evidence presented to the 

jury was highly prejudicial to [Appellant], the [trial] court’s 

admission of said evidence constituted an abuse of discretion 

which denied the Appellant the right to a fair trial guaranteed 

under both the Pennsylvania and U.S. Constitutions.

IV. Whether trial counsel provided ineffective assistance of counsel 

by failing to present evidence that the Appellant never attended 

Southern High School with the complainant and where such 

evidence would have established that the complainant was lying, 

mistaken, or fabricating/bolstering his identification and 

testimony?

Appellant’s Brief at 3. 

Appellant’s first challenge is to the sufficiency of the evidence, 

specifically to the identification of Appellant. This Court’s standard of review 

for sufficiency of the evidence is well established.

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable 

to the verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence. Evidence 

will be deemed sufficient to support the verdict when it 

establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. [T]he facts and circumstances 

established by the Commonwealth need not be absolutely 

incompatible with the defendant's innocence. Any doubt about 

the defendant’s guilt is to be resolved by the fact finder unless 

the evidence is so weak and inconclusive that, as a matter of 

law, no probability of fact can be drawn from the combined 

circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015) 

(quoting Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super. 

2013)). 
J-S52021-16

- 7 -

Essentially, Appellant’s argument is that the victim altered his story at 

different procedural stages and has prior convictions involving crimen falsi; 

therefore, there was insufficient evidence for conviction. In essence, he is 

asking us to find the victim incredible because of his prior inconsistency. 

Appellant’s argument goes to weight and credibility rather than the 

sufficiency. See Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 

2011) (“Directed entirely to the credibility of the Commonwealth’s chief 

witness, [a]ppellant’s claim challenges the weight, not the sufficiency of the 

evidence.”). “The weight of the evidence is exclusively for the finder of fact, 

which is free to believe all, part or none of the evidence, and to assess the 

credibility of the witnesses. An appellate court cannot substitute its 

judgment for that of the jury on issues of credibility.” Id. (citations 

omitted). 

Even if Appellant’s argument went to the sufficiency of the evidence, it 

is meritless because at trial the victim repeatedly identified Appellant as the 

shooter. Furthermore, the victim testified that he changed his story because 

he wanted to take care of the matter himself rather than press charges. As 

there was testimony identifying Appellant as the shooter, Appellant’s 

sufficiency claim fails. 

Appellant’s second argument is a challenge to the weight of the 

evidence. After having his appellate rights reinstated nunc pro tunc, via a 

PCRA petition, Appellant did not file any post-sentence motions. In 

Commonwealth v. Liston (Liston II), 977 A.2d 1089 (Pa. 2009), our 
J-S52021-16

- 8 -

Supreme Court held that defendants who have been granted the right to file 

an appeal nunc pro tunc are not automatically granted the right to file postsentence motions nunc pro tunc. Liston II, 977 A.2d at 1093-94. In 

seeking PCRA relief, Appellant did not attempt to have his right to file a 

post-sentence motion reinstated. A challenge to the weight of the evidence 

cannot be raised for the first time on appeal. See Commonwealth v. 

Lofton, 57 A.3d 1270 (Pa. Super. 2012); Pa.R.Crim.P. 607. Appellant failed 

to challenge the weight of the evidence prior to this instant appeal; 

therefore, Appellant’s challenge to the weight of the evidence is waived.

Even if the claim were not waived, Appellant’s claim is meritless 

because the jury was free to believe all, part, or none of the victim’s 

testimony, and this Court cannot substitute its judgment for that of the jury 

on issues of credibility. 

Appellant’s next challenge is to the admission of a stipulation that was 

read into the record. Appellant asserts that trial counsel failed to 

acknowledge the stipulation on the record, thereby violating Appellant’s right 

to a fair trial. “Rulings on the admissibility of evidence . . . are within the 

discretion of the trial judge, and such rulings will form no basis for appellate 

relief absent an abuse of discretion.” Commonwealth v. May, 887 A.2d 

750, 761 (Pa. 2005) (citations omitted). A claim that the trial court violated 

an appellant’s rights to confront witnesses must be forwarded at trial or it is 

waived. Id.; see also Pa.R.A.P. 302(a). Upon this Court’s review of the 

record it is apparent that trial counsel did not object to the stipulation being 
J-S52021-16

- 9 -

read into the record. As counsel did not object on the record, the claim was 

not preserved on appeal. Appellant’s claim fails. 

Next, Appellant asserts that his conviction was the result of 

ineffectiveness of counsel, Daniel O’Riordan, Esquire. Specifically, Appellant 

asserts that Attorney O’Riordan was ineffective for failing to present 

evidence that it was impossible for the witness to have met Appellant at 

Southern High School because Appellant did not attend that school. Upon 

review of the record, we conclude the trial court should not have addressed 

this issue. 

The “general rule of deferral to PCRA review remains the pertinent law 

on the appropriate timing of review of claims of ineffective assistance of 

counsel.” Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). In 

Holmes, our Supreme Court noted only two exceptions to this general rule. 

The first exception is where “there may be an extraordinary case where the 

trial court, in the exercise of its discretion, determines that a claim (or 

claims) of ineffectiveness is both meritorious and apparent from the record 

so that immediate consideration or relief is warranted.” Id. at 577. The 

second exception provides that trial courts have discretion, upon good cause 

shown, if there are multiple or prolix claims of counsel ineffectiveness, and 

the defendant expressly waives PCRA review. See id. at 563-64. 

In the matter sub judice, the trial court did not grant relief and there is 

nothing in the record indicating that Appellant expressly waived PCRA 

review. Thus, the Appellant’s claim does not fall under the two exceptions to 
J-S52021-16

- 10 -

the general rule of deferral to PCRA review. See id. at 563-64. Accordingly, 

Appellant is not entitled to relief on his ineffectiveness claim on direct 

appeal.2

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016

____________________________________________

2 We do not express any opinion regarding the merits of Appellant’s 

ineffectiveness claim.