J-A27020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEROME KING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 164 EDA 2019

Appeal from the Judgment of Sentence Entered November 9, 2018

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

No(s): CP-51-CR-0009432-2017

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 16, 2019

Appellant, Jerome King, appeals from the judgment of sentence 

following his conviction by a jury of first-degree murder, firearms not to be 

carried without a license, carrying firearms in Philadelphia, and possession of 

an instrument of crime (“PIC”).1 We affirm.

An information was filed on November 7, 2017, and trial occurred 

November 5–9, 2018. Following Appellant’s convictions of the above crimes, 

the trial court sentenced Appellant on November 9, 2018, to life in prison for 

murder and did not impose further penalty on the remaining convictions. 

Appellant filed a post-sentence motion for a new trial assailing the weight of 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(a), 6106(a)(1), 6108, and 907, respectively.
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the evidence on November 13, 2018, which the trial court denied on December 

26, 2018. Appellant filed this timely appeal. Both Appellant and the trial court 

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

The facts of the crime are as follows. Philadelphia Police Officer 

Lacarmela Fortune responded to a radio call on June 20, 2017, at 10:36 a.m. 

that a male had been shot at the intersection of 29th Street and Cecil B. Moore 

Avenue. N.T., 11/6/18, at 62–63. When Officer Fortune arrived, she found a 

burgundy car smashed into a black car, which crashed into a grey car. Id. at 

65–66. An unconscious man, later identified as Marvin Brunson (“Victim”), 

was slumped over on the front driver’s seat of the burgundy car, with his head 

leaning “almost out the [driver’s] window.” Id. at 67–68. There were no 

other occupants in the automobile. Id. at 65, 68. Victim had blood on his 

chest, and he still had his foot on the gas with the vehicle “revving.” Id. at 

68. A second police car “pulled up right away,” and Officer Fortune testified,

“[W]e opened the door. We got the male out of the vehicle and put him into

the other unit’s vehicle and they took him to the hospital.” Id. at 67.

Victim was pronounced dead at 10:49 a.m. at Hahnemann Hospital. 

N.T., 11/6/18, at 89, 96. Dr. Khalil Wardak, Philadelphia Associate Medical 

Examiner, testified Victim had a “gunshot wound to the right side of the chest, 

a gunshot wound to the upper posterior shoulder, back of the shoulder, a 

gunshot wound to the back of the heart, a gunshot wound to the back of the 
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forearm, and a gunshot wound to the left forearm.” N.T., 11/8/18, at 28. Dr. 

Wardak determined that the gunshot wound to the chest was fatal. Id. at 29.

Philadelphia Police Officer Christopher Reed of the Crime Scene Unit 

testified that he arrived at the scene at 11:45 a.m. on June 20, 2017. N.T., 

11/6/18, at 180. Officer Reed collected six .45 caliber cartridge casings; three 

casings were on the street, and three were in Victim’s vehicle. Id. at 186–

188, 196. Police Officer John Cannon of the Philadelphia Police Department’s 

Firearms Identification Unit testified that all six casings were fired from the 

same .45 caliber semiautomatic weapon. N.T., 11/7/18, at 169. Two bullets, 

also .45 caliber, which were recovered from Victim’s body, were each fired 

from the same weapon, but the firearms expert could not determine whether 

they were fired from the same firearm as the casings.

2

 Id. at 173–174, 178. 

In addition, police utilized trajectory rods to determine the path of the bullets. 

Id. at 189. Police were able to determine that the direction of travel of the 

bullets was “from the rear of the vehicle on the passenger’s side through to 

the driver’s seat.” Id.

Police interviewed Appellant’s former girlfriend, Tyera Chapman, three 

months after the murder and viewed digital surveillance videos from the area. 

N.T., 11/6/18, at 148–175; 11/7/18, at 25, 43–45. Philadelphia Detective 

____________________________________________

2 “The only way we can make an association between” bullets and casings is 

“if we have [the] firearm.” N.T., 11/7/18, at 174. Police did not recover the 

murder weapon.
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Billy Golphin testified that during the interview, Ms. Chapman initially denied 

knowing anything about the murder but never told police she wanted to leave. 

N.T., 11/8/18, at 88–89, 97. After thirty or forty minutes, Ms. Chapman gave

a videotaped statement. Id. at 61–62. Detective Golphin read the 

memorandum he wrote following his interview of Ms. Chapman:

On 9/14/2017, Tyera Chapman, 27-year-old black female, was 

brought into the homicide unit—

* * *

. . . after members of the homicide fugitive unit and U.S. Marshals 

conducted a search of her residence and attempted to apprehend 

homicide fugitive [Appellant]. Chapman was placed in Interview 

Room B and Detective Tolliver and Golphin spoke with her in 

reference to [Appellant]. Chapman admitted that she and

[Appellant] were in a romantic relationship and that she was 

aware that [Appellant] was on the run from the police.

Chapman was asked if [Appellant] told her what he was on 

the run from. She stated he told her that he left the store at 28th

and Cecil B. Moore Avenue and someone . . . wearing the same 

clothing he was wearing killed somebody at 29th Street. She then

stated that [Appellant] told her some girl called this guy and told 

him the boy’s been looking—the boy told him the boy he’s been 

looking for was on the corner, and the guy tied his hoody tight 

and ran up and shot the guy.

Detective Golphin told Chapman the explanation didn’t 

make sense and that [Appellant] called Chapman shortly before 

and after the homicide. Chapman stated that she didn’t want to 

be a rat and she wasn’t going to sign her name to anything. She 

said he did it. Chapman stated [Appellant]—

The Court: Wait. “She then said.”

[Detective Golphin]: He did it. Chapman stated [Appellant] told 

her someone told him the boy he had a problem with was on the 

corner. [Appellant] told her he tied his hoody up tight and ran 

upon him and killed him.
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"Detective Golphin and Chapman—asked Chapman if she 

would consent to be videotaped and she agreed.

N.T., 11/8/18, at 110–111. Ms. Chapman refused to sign the standard 

document “created after someone is interviewed on video” because “[s]he 

didn’t want to be involved” and “didn’t want to be known as a rat.” Id. at 60–

62. The videotaped statement was played for the jury. Id. at 65.

Police also examined video surveillance from the crime scene. The trial 

court summarized the video compilation, which was submitted with the trial 

court’s Pa.R.A.P. 1925(a) opinion and was shown to the jury, as follows:

The parties stipulated that Detective Thorsten Lucke was an 

expert in the field of recovery and analysis of digital surveillance 

video. (November 8, 2018, 24). Detective Lucke testified that he

trained at the Federal Bureau of lnvestigation Forensic Video 

Image Audio Analysis Unit, in Quantico, VA. He processed more 

than 1,000 crime scenes recovering surveillance video as well as 

processing, analyzing these videos for court presentations and 

news releases. Over the previous six or seven years, he trained 

federal, state and local agents.

* * *

. . . . Surveillance tapes were recovered from three commercial 

businesses, one apartment building, a police camera, and a public 

transit bus. (N.T. November 7, 2018, 28).

* * *

. . . . Detective Lucke created a “video compilation” from different 

angles, locations, times and systems. Generally, the scenes are 

shown in chronological order. (N.T. November 7, 2018, 30).

* * *

At 10:20 a.m., the camera at 2800 Cecil B. Moore Avenue 

shows a black male exit a building and place something in the 
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garbage. The male is wearing dark jeans gathered at the ankle, 

a white T-shirt with a colorful logo, a gray hoodie draped over his 

shoulder, black sneakers with white trim, and a lanyard hanging 

out of his pocket. (M17-146 Surveillance Video Compilation,

1:30). Multiple cameras capture the male walking north on 28th

Street, making a left on Cecil B. Moore Ave, and then a right onto 

Newkirk Street. (2:50).

At 10:24 a.m., the male can be seen placing an item onto 

the roof of a parked vehicle on Newkirk Street. (9:05). At 10:26 

a.m., the male is seen again on Newkirk Street[] walking back 

toward Cecil B. Moore Avenue, [and] the male no longer has the 

gray hoodie draped over his shoulder. (9:37). Cameras pick the 

male up on Cecil B. Moore Avenue at 10:27 a.m., the lanyard that 

was previously hanging out of his pocket is now around his neck. 

(11:14).

From 10:27 until 10:29 a.m., surveillance cameras inside 

the supermarket located at 1700 North 28th Street (at Cecil B. 

Moore Avenue) capture the male shopping. (13:13). As part of 

the compilation, the footage is frozen twice, focused on the male’s 

face, and photographs of [Appellant] were superimposed for 

comparison purposes. The picture of the male and the picture of 

[Appellant] both show full beards. (12:22, 13:58).

Also occurring at 10:27 a.m., and recorded on camera, a 

red vehicle later identified as [Victim’s] parks on Cecil B. Moore 

Avenue—in between Newkirk Street and 29th Street. (15:20). 

Upon leaving the convenience store, the male walks back toward 

Newkirk Street.

As the male is walking toward Newkirk Street he walks into 

the street on Cecil B. Moore Ave, and leans out into traffic as if to 

get a better view of something up ahead. (17:15). The male

continues to stand on the side of the road staring in the direction 

of [Victim’s] vehicle for at least a minute. (18:15). At 10:30 

a.m., the male runs up Newkirk Street, towards the vehicle [on 

which] he had previously placed the gray item. (19:20). At 10:31 

a.m., a male wearing dark jeans gathered at the ankle, a white tshirt with a logo or a lanyard, an un-zipped gray hoodie, and black

sneakers with white trim, runs past Steak & All (a restaurant 

located between Newkirk Street and 29th Street on Cecil B. Moore 

Avenue[)]. (23:19). A freeze frame of the male running is
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compared to two other freeze frames of the male shown earlier in 

the video. (23:49).

At 10:31:47 a.m., the male wearing the gray hoodie runs 

up on [Victim’s] vehicle. (25:09). It is unclear what the male is 

doing, but seven seconds later a previously unseen individual

begins to run away from [Victim’s] vehicle and a car drives off 

rapidly. (26:17). At 10:32:05 a.m., the male in the gray hoodie 

walks away from [Victim’s] vehicle. (28:02). At 10:32:15 a.m., 

[Victim’s] vehicle drives in front of a SEPTA bus, and crashes into 

a parked car on 29th Street. (30:10, 30:36).

Trial Court Opinion, 3/19/19, at 7–9.

Based on Ms. Chapman’s statements to police and the video surveillance

from the crime scene, inter alia, police arrested Appellant for Victim’s murder

on September 14, 2017. While Ms. Chapman testified at trial, and the 

Commonwealth played the video of the police interview with her, Ms. 

Chapman did not appear voluntarily, and she denied the veracity of her 

previous videotaped statement to police. N.T., 11/6/18, at 130, 133–136.

Appellant raises the following issues on appeal:

A. Was the evidence insufficient to sustain the convictions 

because the Commonwealth failed to prove that Appellant 

was the person who shot and killed the victim?

B. Did the trial court commit an abuse of discretion by not 

finding that the verdicts were against the weight of the 

evidence because the video compilation was not 

authenticated in accordance with Pa.R.E. 901?

C. Did the trial court commit an abuse of discretion by not 

finding that the verdicts were against the weight of the 

evidence because the video of the shooting failed to clearly 

show that Appellant was the shooter. Tyera Chapman 

disavowed what was in her stat[e]ment, and in any event, 

her testimony about what Appellant allegedly related to her 

was not inculpatory?
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Appellant’s Brief at 3.

Appellant’s first issue assails the sufficiency of the evidence. In 

reviewing the sufficiency of the evidence, we must determine whether the 

evidence admitted at trial and all reasonable inferences drawn therefrom, 

viewed in the light most favorable to the Commonwealth as verdict winner, 

were sufficient to prove every element of the offense beyond a reasonable 

doubt. Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019). 

“[T]he facts and circumstances established by the Commonwealth need not 

preclude every possibility of innocence.” Commonwealth v. Colon-Plaza, 

136 A.3d 521, 525–526 (Pa. Super. 2016) (quoting Commonwealth v. 

Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). 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. 

Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015). The 

Commonwealth may sustain its burden of proving every element of the crime 

by means of wholly circumstantial evidence. Commonwealth v. Mucci, 143 

A.3d 399, 409 (Pa. Super. 2016). Moreover, as an appellate court, we may 

not re-weigh the evidence and substitute our judgment for that of the factfinder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

Appellant asserts in conclusory fashion that the evidence presented at 

trial did not prove that Appellant was the person who shot Victim. Appellant’s 
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Brief at 19–20. Specifically regarding the issue of identity, our Supreme Court 

has stated:

Proof beyond a reasonable doubt of the identity of the accused as 

the person who committed the crime is essential to a conviction. 

The evidence of identification, however, needn’t be positive and 

certain in order to convict, although any indefiniteness and 

uncertainty in the identification testimony goes to its weight. 

Direct evidence of identity is, of course, not necessary and a 

defendant may be convicted solely on circumstantial evidence.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (internal 

citations and quotation marks omitted).

Appellant maintains that the video evidence does not “show the face of 

the shooter” nor does it “show [A]ppellant armed with a weapon[,] and police 

failed to uncover any ballistic evidence that could be connected to the 

shooting.” Appellant’s Brief at 18–19. Appellant did not raise these particular 

objections in his Pa.R.A.P. 1925(b) statement. In that statement, instead, 

Appellant stated: “The evidence was insufficient to sustain the convictions 

because the Commonwealth failed to prove that Appellant was the person who 

shot the victim given that the identification was based solely on the clothes 

worn by the shooter and the law is clear that convictions based solely on 

clothing cannot stand.” Statement of Matters Complained of on Appeal, 

2/25/19, at 1. Thus, in his appellate brief, Appellant presents a new theory 

with regard to the sufficiency of the evidence of Appellant’s identity as the 

shooter. See Commonwealth v. Jones, 191 A.3d 830, 834–835 (Pa. Super 

2018) (finding waiver where defendant challenged identification testimony on 
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appeal under different theories than those previously addressed to trial court 

in Pa.R.A.P. 1925(b) statement because trial court did not have opportunity 

to review those theories). Indeed, issues not included in a court-ordered 

Pa.R.A.P. 1925(b) statement are deemed waived on appeal. Pa.R.A.P. 

1925(b)(4)(vii). We conclude that the sufficiency-of-the-evidence issue as 

raised in Appellant’s appellate brief is waived.

In the alternative, we note that the trial court addressed the sufficiencyof-the-evidence claim, as it was defined in Appellant’s Rule 1925(b) 

statement, as follows:

The conviction of [Appellant] was not based sole[l]y on his 

clothing. He made an admission against interest to Tyera 

Chapman, his former girlfriend. [Appellant] told her that he 

received a telephone call from a female who informed him that 

the guy he was supposed to be beefing with, was out there. 

[Appellant] told Ms. Chapman that he did what he had to do. He 

said that he tied the hoodie tight. He wasn’t going to worry about 

it. Nobody would care. In September 2017, [Appellant] stopped 

by her house, told her that he was wanted by the police and that 

he would not turn himself in.

Detective Dunlap’s cell phone analysis put [Appellant] within 

a square mile of the scene of the shooting at the time of the 

shooting. [Appellant] was associated with premises 1755 North 

Newkirk Street, which is about two blocks from the scene of the 

shooting. [Appellant] spent about 80 percent of his time in that 

neighborhood.

Detective Lucke’s video compilation[] showed a male in the 

neighborhood at the time of the shooting. The male wore dark 

sneakers with white trim, dark jeans, a white T-shirt with a logo 

on the front. In different frames the male carried or wore a 

hoodie, but in other frames the male did not have a hoodie. 

Minutes before the shooting, this male was videotaped inside a 

grocery store. The defense agreed that the male in the 

supermarket was the [Appellant]. Twice [Appellant’s] photograph 
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was superimposed on the video so that the jury could compare 

the face of the male with the face of [Appellant]. Both [Appellant] 

and the male in the video had full beards. The male, with the 

hoodie tied over his head and part of his face was caught on 

videotape running away from the scene of the shooting. 

[Appellant] had told Ms. Chapman that he “tied the hoodie tight 

and that was it.”

Trial Court Opinion, 3/19/19, at 13–14. The jury found that the male in the 

video was [Appellant], Trial Court Opinion, 3/19/19, at 13–14, and thus, the 

trial court opined that the verdict was not based solely on the clothing worn 

by Appellant.

Even if Appellant had properly preserved this alternative basis of his 

sufficiency claim to the trial court, we would conclude it lacks merit. We 

remind Appellant that the Commonwealth may sustain its burden by means 

of wholly circumstantial evidence, Mucci, 143 A.3d at 409, and as an appellate 

court, we may not re-weigh the evidence and substitute our judgment for that 

of the fact-finder. Rogal, 120 A.3d 994. This Court has stated:

[W]e must emphasize that the Commonwealth may sustain its 

burden of proof by means of wholly circumstantial evidence. 

Commonwealth v. Lehman, 820 A.2d 766, 772 

(Pa.Super.2003). Furthermore, even if the Commonwealth 

presented only circumstantial evidence and offered no positive 

identification of the assailant, we may not weigh the evidence and 

substitute our judgment for the fact-finder as long as the evidence 

was sufficient to prove Appellant's guilt. Id.

Commonwealth v. Robertson, 874 A.2d 1200, 1206 (Pa. Super. 2005). 

Appellant’s cell phone records placed him in the area of the shooting at the 

time of the shooting. Detective James Dunlap, an expert in historical cell-site 

analysis, in which cellular telephone calls and texts are traced, reviewed 
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records for a telephone number registered to Appellant and determined that 

on the date of the murder, between 9:41 a.m. and 10:39 a.m., Appellant’s 

cellular telephone was within the square mile covering the crime scene. 

During the same time frame, calls made to Appellant’s cell phone went 

unanswered. N.T., 11/7/18, at 200. Ms. Chapman’s statements to police, 

although she attempted to repudiate them, were corroborated by the 

surveillance video footage.

Viewed through the lens of the proper legal standard regarding the 

sufficiency of the evidence, we would reject Appellant’s claim. Identification 

evidence “need not be positive and certain to sustain a conviction.” 

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011). Our review of 

the entire record, with due consideration of all of the circumstantial evidence 

presented in the light most favorable to the Commonwealth as verdict winner, 

confirms there was sufficient evidence to establish Appellant’s identity and 

sustain Appellant’s convictions.

Appellant also challenges the weight of the evidence. 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-theevidence claim as follows:
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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. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (quoting 

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. Colon–Plaza, 136 A.3d at 529 (quoting Commonwealth v. Clay, 64 

A.3d 1049, 1055 (Pa. 2013)). A verdict 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.” Williams, 176 A.3d at 312.

Appellant’s second issue, assailing the weight of the evidence because 

the video evidence was not properly authenticated, is waived. In his postsentence motion, Appellant asked the trial court to grant him a new trial based 
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upon the weight of the evidence. 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.” Williams, 176 A.3d at 312 (citing 

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

that while Appellant challenged the weight of the evidence in his May 9, 2016 

post-sentence motion, that motion merely generically states, “The guilty 

verdicts were contrary to the weight of the evidence and should be reversed 

in the interest of justice.” [Appellant’s] Post-Sentence Motion for a New Trial, 

11/13/18, at 2. In the Memorandum of Law in support of the post-sentence 

motion, Appellant asserts only that it was unclear in the video evidence that 

Appellant was the person therein, there was no eyewitness to the shooting, 

and no forensic link between Appellant and the crime. Memorandum of Law, 

11/13/18, at 10–11. The post-sentence motion assailing the weight of the 

evidence did not include a challenge to the authentication of the video

compilation.

Pa.R.Crim.P. 720 provides that the filing of a post sentence motion is 

optional. The comment to the rule makes clear that “the failure to brief or 

argue an issue in the post-sentence motion would not waive that issue on 

appeal as long as the issue was properly preserved, in the first 

instance, before or during trial.” Pa.R.Crim.P. 720 cmt at Optional PostSentence Motion (emphasis added). In his brief, Appellant wholly failed to 
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cite to the record regarding his preservation of the issue at trial. Our 

independent review of the record reveals that the video compilation was 

marked for identification and played for the jury at trial without any objection 

by Appellant. N.T., 11/7/18, at 32. “Issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). 

We conclude Appellant’s claim regarding authentication of the video evidence 

is waived because Appellant did not challenge it in his Rule 1925(b) statement 

and did not object to the evidence at trial.

Appellant’s final claim that the verdict is against the weight of the 

evidence “because the video of the shooting failed to clearly show that 

[A]ppellant was the shooter, Tyera Chapman disavowed what was in her 

statement, and . . . her testimony about what [A]ppellant allegedly related to 

her was not inculpatory,” Appellant’s Brief at 26, parrots the argument in his 

sufficiency claim and is akin to the weight claim asserted in Appellant’s 

Memorandum of Law in support of his post-sentence motion. The fourparagraph argument in the brief is devoid of any reference to the record. 

Appellant does not advise what was in Ms. Chapman’s statement, where she 

“disavowed” it, or what Appellant “allegedly related to her.” Appellant’s Brief 

at 26–27. Despite these shortcomings, we address the issue in reliance upon 

the trial court’s opinion rejecting this contention, as follows:

At trial, Tyera Chapman repudiated her prior recorded 

statement given to Detectives Golphin and Tolliver. She testified 

that she did not remember anything about the killing, that she 

previously lied to police, and that she was afraid for herself, her 
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son and [Appellant]. Her videotaped statement to the Detectives 

Golphin and Tolliver was properly admitted as substantive 

evidence.

Pertinent to our review of this issue, we are 

mindful that “a prior inconsistent statement may be 

offered not only to impeach a witness, but also as 

substantive evidence if it meets additional 

requirements of reliability.” Commonwealth v. 

Carmody, 799 A.2d 143, 148 (Pa. Super. 2002) (citing 

Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7, 9–

10 (1992); Pa.R.E. 803.1).

The test is a two-part inquiry: 1) whether the 

statement is given under reliable 

circumstances; and 2) whether the declarant is 

available for cross-examination. With respect to 

the first prong, that the statement is given 

under reliable circumstances, our Supreme 

Court has deemed reliable only certain 

statements; among them is a statement that is 

“reduced to a writing and signed and adopted 

by the witness.” Lively, 610 A.2d at 10; Pa.R.E. 

803.1(1). With respect to the second prong, 

cross-examination, the inconsistent statement 

itself must be the subject of the crossexamination in order to satisfy the test.

Carmody, 799 A.2d at 148 (some internal citations 

and footnote omitted). See also Lively, 610 A.2d at 

10 (providing prior inconsistent statement is 

“demonstrably reliable and trustworthy” where 

statement “had been reduced to a writing signed and 

adopted by the witness; or a statement that is a 

contemporaneous verbatim recording of the witness’s 

statements”).

Commonwealth v. Enix, 192 A.3d 78, 81–82 (Pa. Super. 2018).

The jury heard Ms. Chapman’s recantation, and viewed the 

video interview, in which she stated that she had been treated 

“fine” when she was at the homicide unit and that she had the 

opportunity to use the bathroom and get water. The jury made a 

determination as to her credibility and accepted her testimony as 
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true. The jury determined that what [Appellant] told Ms. 

Chapman was inculpatory.

When a trial court evaluates a weight of the evidence 

claim, the trial court may award relief only “when the 

jury’s verdict is so contrary to the evidence as to 

shock one’s sense of justice and the award of a new 

trial is imperative so that right may be given another 

opportunity to prevail.” Commonwealth v. Clay, 619 

Pa. 423, 64 A.3d 1049, 1054-55 (2013) (citations 

omitted).

Commonwealth v. Clemons, [200 A.3d 441, 463 (Pa. 2019)].

Nothing about this verdict shock’s the conscience.

Trial Court Opinion, 3/19/19, at 16–17.

Even if Appellant is correct that Ms. Chapman’s prior statement was 

contradictory, Appellant would not be entitled to a new trial. Questions 

regarding a witness’s prior inconsistent statement are “classic issues of 

credibility to be decided by the jury.” Commonwealth v. Sanchez, 36 A.3d 

24, 40 (Pa. 2011). The jury concluded that Appellant was the man depicted 

at the end of the surveillance video compilation. The man in the video was 

dressed identically to Appellant, both men had the same facial hair, build, and 

stature, and Ms. Chapman confirmed, like the man in the video, Appellant had 

reported that he pulled his “hoodie tight.” We cannot say that the trial court 

abused its discretion in ruling that the verdict did not shock the conscience. 

Williams, 176 A.3d at 312.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/19