### J. S69016/14

NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : MONTEZ BETHEA, : No. 2967 EDA 2013 : Appellant : Appeal from the Judg ment of Sentence, September 11, 2013, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP - 51 - CR- 0009460 - 2011 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 23, 2014 Appellant, Mon tez Bethea, appeals from his judgment of sentence entered by the Court of Common Pleas of Philadelphia following a bench trial before the Honorable Glenn B. Bronson. Appellant was convicted of two counts of first degree murder and related offenses. The t rial court imposed the mandatory sentence of life in prison for each murder charge to run consecutive to one another. We affirm. Preliminarily, we must address the facially untimely filing of the notice of appeal. Post- sentence motions were filed and de nied on September 20, 2013. Because the 30 th 

### day to file the notice of appeal fell on Sunday, October 20, 2013, appellant had until Monday, October 21, 2013 to file his appeal. See Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A.; 1 Pa.C.S.A. § 1908. Appellant file d his notice of appeal on October 22, 2013.

### J. S69016/14

- 2 -

On December 20, 2013, this court issued a rule to show cause why the appeal should not be quashed as untimely. On January 3, 2014, appellant’s counsel filed his response in the form of a petition to show caus e why notice of appeal should be deemed timely and should not be quashed. Counsel noted the following docket entry of the Philadelphia Court Criminal Electronic Filing System: “09/23/13 Order Denying Motion for New Trial.” Counsel proceeded to electroni cally file his notice of appeal, via the electronic filing system, on October 22, 2013. Attached to his notice of appeal was a copy of the electronic filing system sheet which indicated the order denying motion for a new trial was filed on September 23, 2 013. (Certified record, document #18.) The paper docket entry in the official record lists the order denying motion for a new trial as filed on September 20, 2013. Thus, this case presents two conflicting dockets that yield different results when the timeliness of appellant’s notice of appeal is analyzed. Pursuant to the online docket, the 30 th 

### day in which to file his appeal was October 23, 2013, and appellant’s appeal is timely. Pursuant to the paper docket, the appeal period expired on October 21, 2013, and appellant’s notice of appeal is untimely. We find that this dichotomy must be resolved in appellant’s favor. See Calabrese v. Zeager, 976 A.2d 1151, 1153 (Pa.Super. 2009) (where there was a conflict between court’s internet and paper dockets a nd appellants relied on errors contained in flawed docket published by county, we granted

### J. S69016/14

- 3 -

equitable relief through an appeal nunc pro tunc). Therefore, we may proceed to review appellant’s appeal on the merits and will not quash it for untimeliness. The trial court opinion sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them here. Appellant raises the following issues for our review: I. Is the Defendant entitled to an arrest of judgment on each of two Counts of First Degree Murder where the evidence is insufficient to sustain the verdict? II. Is the Defendant entitled to a new trial on each of two Counts of First Degree Murder where the verdict is not supported by the greater weight of the evidence? Appellant’s brief at 3. After a thorough review of the record, appellant’s brief, 1 

### the relevant law, and the well - reasoned opinion of the trial court, we hold the sufficiency and weight arguments proffered by appellant are without merit. The trial co urt’s opinion carefully addresses and correctly disposes of the sufficiency and weight claims raised before it by appellant. Accordingly, we dispose of appellant’s issues on the basis of that opinion. Judgment of sentence affirmed.

### J. S69016/14

- 4 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 12/23/2014

1 

### The Commonwealth fil ed a brief in which it relied on the trial court’s opinion.Circulated 11/25/2014 09:30 AM

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rN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYL

### VAI'-IIA 

### CRIMINAL TRIAL DIVISION CP-S1-CR-0009460-2011



### v. MONTEZ BilTIffiA 

## 1111111111111111111111 III 709370694 1 

### BRONSON, J. December 6. 2013 On September 11 , 2013 , following a non - jury trial before thls Court, defendant Montez Bethea was convicted of two 

### counts of first-degree murder (18 Pa.e.S . § 

### 2502(a)) , two counts o f 

### criminal conspiracy (18 Pa.C.S. § 

### 903), two counts 

### of first-degree robbery (1 8 Pa.e.S . § 3701 (a)(I)(i), one**~Ounl** of carrying a fueann withoul a license (18 Pa.C .S. § 6 106(a)( I)), on e 

### count of carrying 

### a fircann on public 

### streets ofPhilndelph.i1l (l8 Pa.C.S . § 

### 6108), one count of



### , possessing a controlled substance with intent to deliver (75 Pa .C .S . 

### § 780-1 13(a)(30)), and one 

### count of possessing an instrument of crime 

### (18 Pa.C.S , § 

### 907(a» . The Coun immediately imposed the mandatory sentence of life in 

### prison for each murder charge, t o nUl 

### consecutive to one another (18 Pa .C.S . § 

### 1102(a)(I». Defendant filed post-sentence motions , which the Court dellied on September 20 , 2013 . 

### Defendant has now appealed from the judgment of sentence 

### entered 

### by tile Court 

### on the grounds that: l) th e evidence was insufficient to 

### support the verdict; and 2) the verdict was against the weight of the 

### evidence. Statement of Matters Complained ofPursuant 

### to Rule of Appellate ProcedlUe 1925(b) ("Statemenl of Errors") at**~~** 1-2. For the reasons sel forth below , 

### Defendant's claims are without merit and the judgment of sentence should 

### tx. affirmed.Circulated 11/25/2014 09:30 AM



### I. FACTUAL BACKGROUND At trial, the Commonwealth presented the testimony of Shante Smith, Lester Johnson, William Whilehouso, Patricia Guy, 

### Darryl Rigney, Philadelphia Police Officers Charles Kapusniak. Joseph McCabe, Joseph McCauley, Stephen Ratka, Lamont Fox , Reginald Forrest, Jr., and Kenneth Long, Philadelphia Police Detectives Gregory Rodden and Micah Spotwood, 

### Philaddphia Police Corporal Gerard Mertz, Philadelphia Police Captain James Smith. and, by stipulation. the testimony of Dr. Q-,uy Lincoln Collins and Officer Ken Weitman. Co-defendant James presented the testimony of Kuzell Bivins and 

### Tyrik Lark. Viewed in the light most fa'r'orable to th(, Commonwealth as the verdlc1 winner, their testimony established the fOllowing . On Dcc;:mhcr 8 , 2010, at approximately 11 a.m., defendant Bethea called a friend, Darryl Rigney, and asked him to accompany defendant to buy marijuana. N . T . 9 11 0120 13 at 115-116. Mr. Rigney said yes, and defendant drove to Mr. Rigney's house in a Crown V ictoria, N.T . 9110/2013 at 116. After he arrived at 

### Mr, Rigney's house, defendant told 

### Mr, Rigney to drive to Mr. James ' s house, because Mr. James knew people who sold marijuana. N .T. 

### 9/10/2013 at 116. Mr. Rigney**dr~ve** defendant to Mr. James's house in the Crown Victoria. N.T. 911012013 at 116 . When they arri:-,cd at the house, defendant got out of the car, met Mr. James at the door, and went inside for a few minutes. N.T. 

### 9 i l 012013 at 1 16-117 . The two men then returned to the 

### Crown Victoria 

### in which 

### Mr . Rigney was**wa~ting .**  

### N .T. 9/1 0/2013 at [ 17. Once in the car, Mr. James began calling his drug supplier, Jemark Daniel. N .T. 9/1012013 at 117-120. 

### Mr. Daniel did not answer Ihe phone . N .T. 9/10/2013 al 117. Mr. James then called a friend, Robert Williams, and told him to meet Mr. James at 171h Street and Fairmount Avenue . N .T. 9/1012013 at Il7-1I9 . At that point, 

### Mr. Daniel c alled 

### Mr. James back and told him that he could come 

### by Mr. Daniel's. apartment to buy marijuana. N.T, 

### 9110/2013 at



### 2Circulated 11/25/2014 09:30 AM 

# -- ....**'--.-~.** 

# o ') '-- 119. Mr. 

### Rigney then 

### drove the Ultee men to 

### 11" Street and Fairmount Avenue, where Mr. Williams was waiting. N.T. 9110/2013 at 120. 

### Mr. Williams had a 

### white Cadillac with him. N.T. 911012013 at 120. 

### Mr. James, defendant, and Mr. Rigney got into the white Cadillac, while 

### Mr. Williams took the Crown Victoria. N .T . 9110/2013 at 120 . Mr. 

### Rigney drove the white Cadillac to 3001 Redner Street, where Mr. Daniellivcd.. N.T. 9/1012013 at 

### 120. Mr. James 

### and defendant got out of the car and went into Mr. Daniel's apartment. N.r. 

### 9/10/2013 

### at 121· 122. 

### Upon entering the apartment, Mr. Jomes and defendant shot and killed Mr. Daniel and his girlfriend, Palranella London, and s t ole his marijuana and passports from the apanment. Mr. 

### James and 

### defendant then Oed the apartment, running back to the Cadillac with 

### a large black garbage bag. N.T. 911012013 at 122. As Mr. Rigney drove the car away from the apartment building, Mr. James said to Mr. Rigney, "I took his shit." N.T. 911012013 at 160. Mr. Daniel's neighbor. Lester Johnson, heard the gunshots and looked out his window . N.T. 911012013 at 10. He saw the white Cadillac speed off from 

### Mr. Daniel's apartment. N.T . 

### 911 0/2013 

### at 

### 10. Mr. Johnson "Wrote down what he could see oflhe license plate number, which 

### was "HP 7-27." N .T. 911 012013 at 11-14 . A friend who was with Mr. 

### Johnson called 911, and the police arrived on the scene. N.T . 

### 9/10/2013 at 12, 40, 89. Upon entering the apnrtmcnt 

### and seeing the bodies of Mr. Daniel and 

### Ms. London, il was immediately apparent to police officers 

### Ihat they were both dead. N.T. 

### 9/1012013**al40~41.** The paramedics arrived and pronounced 

### both victims. N .T. 

### 9/1012013 at 41. Mr. Daniel had been shot ten times : twice in the chest, 

### twice in the stomach. four times in the left arm, once in 

### the left 

### thigh, and 

### once in the right thigh . N. T . 919/2013 at**160~** 161 . Ms. London had been shot thirteen times: eight times in the back , three times in the left thigh, once in the left arm, and once 

### in the left leg. N.T. 

### 91 912013 at 161.



### 3Circulated 11/25/2014 09:30 AM 

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### At the same time, 

### Philadelphia Police Officer Charles Kapusniak and his partner, . Kenneth Long , were conducting surveillance on the 1800 block ofNorth Judson Street, pursuant to their assignment with the Narcotics Field Unit. N.T. 

### 9/9/2013 at 94. TIlls location was near Redner Street, where the murders had j ust occurred. At approximately 2:40 p.m., Officer Kapusniak observed a white Cadillac travel southbound on Judson Street before pulling ovCr ncar 1820 North Judson Street. N.T. 

### 91912013 at 95. Officer Kapusniak saw Darryl Rigney exit the vehicle's driver door. while Mr. James emerged from the front passenger scat and defendant got out of the rear passenger seat. N,T. 

### 9/9/2013 at 95-96 . All three men then walked to the rear afthe Cadillac, and Mr. James removed a large trash bag from the Cadillac's tnmk. N.T, 

### 91912013 at 96. The three men then ran into 1820 North Judson Street. N.T. 

### 91912013 

### at 96. Thirt y seconds after the three men ran into the house o n North Judson Street, Officer KaplIsniak received a call over police radio from Philadelphia Police Lieutenant James Smi th. 

### N.T. 9/912013 at 

### 96, 123. Lieutenant 

### Smith informed Officcr Kapusniak that there had been a shooting at 3001 Redner Street, and that a white Cadillac containing two or three black males had been seen fleeing the scene. N.T. 

### 9/912013 at 96, 123-125; 

### 9/1 012013 at 16-17. Officer Kapusniak radioed for backup. infonning Lleutenant Smith that he had just seen a white Cadillac and that three black malcs had emerged from the Cadillac and run into a bouse. N.T. 9/912013 at 96·97, 199.**Appro~ately** one minute after be radioed for backup, Officer Kapusniak observed two men, later identified as Reginald Andrews and Maurice Morris. walk past bis vehicle. N.T. 91912013 at 97·98. Mr. Andrews and Mr . Morris approached 1820 North Judson Street, knocked on the door. and entered tb e house. NT. 

### 91912013 at 98 . Mr. James then stuck his head out of the door and looked around. N. T. 91912013 at 98. A short time later. a silver Kia sped down the



### 4Circulated 11/25/2014 09:30 AM 

# ._.- .- .. 

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_

### ... ..•-_ .-. - ... 

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# o () "- 

### block and parked in the middle of the street in front of the house. N.T . 91912013 at 98-99 . Mr. James then ran out of the house, carrying a black duffle bag. NT 919120 13 

### at 99. He jumped into the passenger seat of the Kia and threw the duffle bag into the backseat. N. T. 

### 91912013 at 99. The driver of the Kia, later identified as Mohammed Bey , drove d own Judson Street at a high rate of ::;pe'!d and turned down Montgomery Avenue, at wh ich point Officer Kapusniak lost 

### sight of the vehicle. N.T. 

### 91912013 ot 99·100,120·121. After Mr. Bey turned onto Montgomery Avenue , Officer Joseph McCabe and Officer Miles, who were backing up Officer Kapusniak, pulled over the silver Ki a based on Officer Kopusniak's description ofthc car and its license plate number. NT . 

### 9 /

912 013 at 99-100. 163- 

### J65 . 1 As Officer McCabe approached the passenger side of the vehicle, the passenger door popped open, and Officer McCabe smelled an extremely strong odor of marijuana emanating from the car. N .T . 

### 9/912013 at 165 . Officer McCabe opened the passenger door the rest of the way, and Mr. James , who was in the p<lssenger seat, immediately said, "Officer , that's my marijuana." N. T. 

### 9/9/2013 at**165~166.** Officer McCabe placed Mr. Jame s and Mr. Bey 

### in custody and searched 

### Mr. James ' s 

### pants pockets, recovering 

### $555 cash . N.T. 

### 9 /

912013 at**166 ~**  167,**179~180.** Officer McCabe then saw the duffle bag in the backseat, w hich was open . N .T. 

### 9/912013 at 167 . The bag contained five clear Ziploc bags of marijuana and a scale. N . T . 

### 9/912013 at 167. Officer McCabe radioed Officer Kapusniak and told him that he had apprehended Mr. .Tames and Mr. Bey. and that he had recovered several clear Zip l oc bags of marijuan a from the duffle bag in the backseat of the K ia . N.T. 

### 919/2013 at 100 . While Officer McCabe 

### wa. .. apprehending 

### Mr. James and Mr. Bey, Officer Kapusniak 

### had remained at 1820 North Judson Street, surveilling the house. 

### N.T. 9 /

912013 at 100-10 I.

I Officer Miles' s nrsl name was not given at trial.



### 5Circulated 11/25/2014 09:30 AM



### - ... 

## - ..... .. 

## - 

# ... - 

# . •..**-- "--.-.-~** **----** 

# .. -- - ---- .....•. 

# ----"

- -_ ..

Officer Kapusniak observed Mr. Andrews and Mr. 

### Morris emerge from the house. N.T. 9/9/2013 at 100 . Mr. 

### Andrews had a white plastic bag in his hand. N.T. 

### 919/2013 at 100. Officer Kapusniak again radioed backup**officer~** and gave them a description afMc. Andrews and Mr. Morris. N.T. 

### 9/9fl.013 at 100 . 

### Mr. Andrews and 

### Mr. Morris walked up the block. turning onto Berks Street. N.T. 

### 9/9/2013 at 101. After Mr. Andrews and 

### Mr. Morris tumoo onto Berks Street, Officer Joseph McCauley and Officer Aponte began pursuing 

### Mr. Andrews and Mr. Moms on foot. based on the descriptions relayed to them by Officer Kapusniak. 

## N .r. 919/2013 at 101.z 

### Mr. Monis did not 

### run from the poUce, and was placed in custody . Mr. Andrews fled, thro wing the while plastic bag that he had been carrying over a fence. N.T. 

### 91912013 at 101. Officer McCauley caught up to 

### Mr. AndreW!:! and placed him wtdcrarrest. N.T. 

### 9/9/2013 at 191. Officer McCauley then jumped over the fenc e and retrieved the bag that 

### Mr. Andrews had discarded. N .T. 9/9/2013 at 

### 191 . In 

### the.; bag were Q 

### clear Zip loc bag full of 

### marijuana, several 

### empty bags with 

### marijuana residue, a gun holster, a photograpb album, and two passports . The passports were later 

### discovered to belong to Mr. Daniel, one 

### of the homicide victims. N.T. 9/9n013 at 192; 

### 9/1012013 at 

### 2 1-22; 911l1201J at 

### 85·89. As Officer McCauley 

### was apprehending Mr. Andrews 

### and Mr. Morris , Offiet;r Kapusniak continued Ius surveil lance of 1820 North Judson Street. N .T . 

### 91912013 at 103 . Lieutenant Smith, along with Philadelphia Police Corporal Gerard Mertz and other members of the narcotics team) arrived at lhe house and 

### inf omled Officer Kapusniak that two people had been killed in the shooting at 3001 Redner Street. N.T. 9/9(2013 at 

### J03 . At that point, the 

### officers heard movement from ins ide 1820 North Judson Street. and 

### Corporctl Gerard Mertz ordered the officers to enter the house in order to secure the property . N.T. 

### 9/912013 at 7.02·203.
2 Office Aponte l , first nome was not given at trial.


### 6Circulated 11/25/2014 09:30 AM • ..___ . __ ••....•__________ 1 ___ • .. - --.----.-**,~** •.• .. ,--'- .... --



### Corporal Mertz, Lieutenant Smith, Officer Kapusniak, Officer Long, and Officer Stephen Ratka entered the house . N .T. 

### 91912013 ,'103, 200. As

### poli~ entered the house, defendant and Mr. Rigney were sitting in the living room along with a young WomWl, later identified as Shonte Smith. N.T. 

### 9/9/2013 at 104, 203. Mr . IUgney was sitting in a chair by the front door, while defendant was sitting on a couch on the opposite side ofthe room. N.T. 9/9/2013 at 40, 104,226. Next to defendant was a dog cagc , on top of which was an unzipped duffie bag. N.T. 

### 9/912013 at 104 . Inside that duffle bag, clearly visible to the police, we re clear Ziploc bags full ofmarijuana. N . T. 919/2013 al104, 148 . Defendant, 

### Mr. Rigney, and Ms. Smith were all placed in custody. From Mr. Rigney's pocket, Officer Ratkn recovered the key to the white Cadillac. N.T. 

### 9/9120 1 3 at 109, 152,226. Police pcrfonned a protective sweep of Lbe property for other suspects , and awaited a 

### search 

### warrant in 

### order to 

### further search the 

### property. N.T , 91912013 

### at 104-105, t 

### 49,200,221; 9/10/2013 at 19-21. As police awaited the warrant, Ms. Smith was sitting in a chair and defendant and 

### Mr. James were sitting on the floor. N.T. 9110/2013 at 4 1-42. All three were handcuffed. N .T. 91912013 at 41

-43. As he sat on the floor in handcuff .:;, defendant kicked a 

### pink 

### bag undeqteath the couch. N.T. 911012013 ,,43 ·44 . After obtaining a search warrant, police searched the entire residence. N . T. 

### 91912013 at 105- I06. Police recovered seven clear 

### liploe bags full of marijuana from within the open duffle bag and five clear Ziploc bags full of marijuana from 

### within 8 white trash bag . N. T. 

### 9/9/2013 at 106,240. Police also recovered the pink bag from underneath the couch, which contuined a .357 revolver, a 9-mil1imctcr handgun, and a .45 caliber handgun. N.T. 9/10/2013 at 66. Po lice recovered 25 pieces of ballistics evidence from the scene of the murders: eighteen fired cartridge (lasings and projc(..1:iies from a 9

-millimeter handgun, four fiJed cartridge casings

7Circulated 11/25/2014 09:30 AM 

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### - 

### ..**---~** --' " 

### --_. 

# o
from • 

### .45 caliber handgun, two bullets from a .357 revolver, and one bull'tjeeket of indeterminable caliber. N.T. 911012013 at 66·68. TIle Firearms Unit matched 11 oflhe 

### fired 

### cartridge casings to the 9-millimeter gun recovered from the pink bag found in 1820 North Judson Street, one oftbe fIred cartridge casings to 

### the.45 caliber handgun fOWld in the pink bag, WId 

### both of the .357 bullets to the .357 revolver found in the pink bag. N.T. 9/10/2013 

### at 70-71. The medical examiner recovered three 9-millimctcr bullets from Ms. London's body, and one 9- millimeter bullet and one .45 caliber bullet from MI. Daniel's body . N . T . 9/1012013 at 69. The .45 

### caliber bullet removed from Mr. Daniel's 

### body was matched to the.45 caliber handgun from 

### the 

### pink bag. N.T. 911012013 at 70' After obtaining a search warrant for the Cadillac, the police recovered ITom its 

### trunk the license plate that was registered to the car, which read "HJZ·\543 . " N .T . 911 

### 0/20 13 at 27 . The 

### license plate that was affixed to the Cadillac, which was not registered to the car, read "HPG· 2737. " NT 

### 911012013 at 25

-26. The 

### marijuana recovered from 1820 North Judson Street, the marijuana recovered 

### from the Kia, and**th~** 

### marijuana that 

### Mr. Andrews attempted to 

### discard over 

### a fence were all "hydroponic" marijuana, which is a 

### parti, culurly expensive, powerful, and 

### pungent-smelling form ofthe drug. N.T. 9110/2013 

### at 14. 56. All of this 

### marijuana was identical to the small amount 

### of marijuana that was leIl behind in 

### the apartment at 3001 Redner Street. N .T. 

### 9/1012013 at 56 ,

l The remaining 9·millimeler and .45 t.alibcr flfed cartridge casings and bullets were eonmrent with the 9· millimeter handgun and 1111,:.45 caliber hundgWl recovered from the bag, but had insufficient mnrkings to positively match rhe clIsmgslo the fm!Olrms . N.T . 9/10/2013 at 71.

8Circulated 11/25/2014 09:30 AM 

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# o II. orscussrON A. Sufficiency oflhe evidence Defendant claims that he "must be awarded an arrest of judgment on all charges , including murder in the first degree, crirninul conspiracy, robbery and related offenses, as Olere was insufficient evidence to sustain the verdict More specifically, the Commonwealth did not prove that the Defendant was the perpetrator of the crimes, nor a criminal conspirator, nor an accomplice. With regard to murder in the first degree, the Commonwealth did not prove specific intent to 

### kill, malice, nor premeditation." Statement ofErrors at 

## 1 t. These claims are without 

### merit, In considering a challenge to ' the sufficiency ofthe evidence, the Court must dt:cide whether the evidence at trial, viewed in the light most favorable to Lhe Commonwealth, together with all reasonable inferences therefrom, could enable 

### the fact-finder 

### to find every clement ofthe crimes charged beyond a reasonable doubt. 

### Commonwealth v. Walsh, 36 A.3d 613 , 618 (Pa. Super. 2012) (quoting 

### Commonwealth v. Brombraugh, 932 A .2d 108 , 109 (Pa. Super. 2007)). In making this assessment, a reviewing court may not weigh the evidence and substitute its own judgment for that ofthe fact-finder, who is free to believe all, plUt, or none- of the evidence. 

### Commonwealth v. Ram/ahal, 33 AJd 602, 607 CPa. 2011) . <I [A] mere conflict in the testimony of the witnesses does not render the evidence insufflcienl.. . .. Commol/wealth v. 

### Monlini, 712 A,2d 761, 767 (pa. Super. 1998). The Commonwealth may satisfy 

### its burden ofproofentirely by**circumstant~al** evidence . Ram/ahal, 33 A,3d at 607. 

### "Ifthe record contains support for the verdict, it may nol be disturbed." Commonwealth v. Adams, 882 A.2d 

### 496 . 499 (Pa. Super. 2005) (quoling Comlllonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2000), appeal den;ed, 782 A.2d 542 (Po . 2001».



### 9Circulated 11/25/2014 09:30 AM 

## --_. ... 

# _.-- ___1.· •.• • · . _____ ·• •..•. - •••..." ..**-.~** •• '-'--- .__.0' __ .' •____. _ _ .. 

# o

1. 

### Identification Defendant's first claim regarding the sufficiency ofthe evidence is**th~t** the evidern;e failed to establish that he was the perpetrator of the crimes ofwhich he was convicted. Statement ofErrors at**~** 1. The standard governing the sufficiency of identification evidence 

### lS 

### , \'Jell-established: absent a tainted identification procedure, "the Commonwealth's burden is simply to introduce evidence solid enough to avold conjecture." 

### Commonwealth v. 

### Hurd,407 A.2d 41 S, 422 

### cPa. Super. 1979). Identification testimony need 

### Dot be positive , and indefiniteness or uncertainty in the testimony goes to its weight and not 

### its s uffi ciency. Commollwealth \I . Hickman, 309 A.2d 564 , 566 (pa. 197 3); Commonwealth \I. Cain, 906 A.2d 1242,1245 (pa. Super. 2006), appeal denied, 916 A.2d 1101 (Pa. 2007); Commanweal/II v. 

### Mason, 236 A.2d 548 (Pa. Super. 1967) . The test is whether the evidence, viewed in lhc light most favorable to the Commonwealth. and accepting all reasonable infc,rences therefrom, could enable the factfinder to conclude that the defendant was the perpetrator. Hickman, 309 A.2d at 566. Here, there was s ubstantial testimonial evidence from which a reasonablejuror could conc lude that defendant committed the crimes of which he was convicted. Darryl Rigney, who had known defendant for 20 years, testified to defendant's involvement in the killing. Mr. Rigney testified that, after 

### Mr. James 

### talked to 

### Mr. Daniel about purchasing marijuana, defe ndant., Mr; James, and Mr. Rigney switched cars with another man and drove to 

### Mr. Daniel 's apartment in a white Cadillac. N.T. 

### 9/1012013 at 1 15·120. 

### 'Mr. Rigney testified tJ,at defendant and Mr.**Jame~** went inside Mr. Daniel's apartment**[U]d~** a few minutes later, ran from ihe apartment to the car carrying a large garbage bag. N. T. 

### 9/1012013 at l22. Lester Johnson testified thnt) at the same time, he heard gunshots and saw a white Cadillac fleeing the scene,



### 10Circulated 11/25/2014 09:30 AM 

# () 

# (J N.T . 9/10/2013 at 

### 10. Officer Kapusniak testified that, as he perfonned unrelated narcotics surveillance near the scene of1he murders, he observed three black men, including defendant, pull up in front of a house in a white Cadillac) remove a large bag from the car's 

### trunk, and run inside the house. NT. 

### 9/912013 at 95-96. Officer Kapusniak aJsa testified that he had a clear, 

### unobstmcted view of the front afthe house from his patrol vehicle. N.T. 

### 9/912013 at 110-111. This testimony was compelling evidence from which lIte Court, as factfUlder, could conclude that defendant corrunitted the murders. Likewise, there was strong physical evidence that proved that defendant was the perpetrator ofthe crimes. Officer Kapusniak testified that, after police entered the house in 

### which defendant 

### was hiding after the murders, defendant and Mr. Rigney were sitting in the living room and that next to defendant was an unzipped duffle bag containing clear Ziploc bags full of marijuana. N.T. 

### 9/912013 at 

### 104 . 148. Ms. Smith 

### testified thal , ElS police 

### awaited tIle 

### warrant, she, defendant, and Mr. Rigney were all placed in 

### handcuffs as they sat in the living room. As she sat in a chair approximately four feet away from defendant , she saw him kick a 

### pink bag underneath the couch . N.T. 911012013 .t41-44. The stipulated testimony of Officer Ken Weitman established that this bag contained the murder weapons. as the guns were matched to the ballistics found at the crime scene and recovered from the body of one of the victims. N.T . 9/ 1012013 

### at 66-71. Officer McCauley 

### testified that a man leaving the house in which defendant was 

### fOWld was in 

### possession of a bag 

### containing passports belonging to Mr, Daniel. NT_ 

### 9/912013 at 192 . Further, the marijuana recovered from the bag found next to defendant at the time ofhis an-est matched the specific type of marijuana found at the scene of the murders. N.T . 9/1 012013 at 56. This was overwhelming evidence that defendant committed the crimes of which he was convicted.



### 11Circulated 11/25/2014 09:30 AM 

## (, \J 

### 2 . Specific Intent to Kill**---.~.-** 

# --_ .....

### -

Defendant also c laims that there was insufficient evidence to prove that he acted 

### with the requlsite intent to commi t first-degree murder. Statement of Errors at"ii I . The evidence is 

### sufficient to establish first-degree murder "where the Commonwealth proves that ( I) a human being was Wllawfully killed; (2) the person accused is responsible for the killing; and (3) 

### the accused acted with specific intent to kill." Commonwealth \I . Bedford, 

### 50 A3d 707, 711 (Pa. 

### Super. 2012), appeal denied, 57 

### A.3d 65 (pa .) 

### (quoting Pa.C.S . § 

### 2502(.)). 

### The specific intent to kill can 

### be inferred "from the manner in which the homicide was committed, such as, multip le gunshot wounds ." Commonwealth v. Hughes, 

### 865 A.2d 761, 793 (Pa. 2004). Moreovcl, specific 

### intent to 

### kill may be inferred from a defendant's use of a deadly wcapon on a vital part of the victim's body. Commonwealth 

### v. Robe r tson, 

### 874 A.2d 1 200, 1207 (pa. Super. 2005). To be guilty offirsl

-degree 

### murder, a dcfendam who 

### is member ora conspiracy 

### to commit murder need not commit t he act thaI 

### resu lts in the death ofthe defendant since all members of il 

### consp i racy ar

e "l iable fo r the actions 

### of the others if

### those actions were in furtherance of the common criminal design." Co mmonweallh v. King, 

### 990 A.2d 1 172, 1178 (pa. Super. 2010). Here, there was compelling evidence that defendant acted 

### with the specific in t ent to 

### kill. The stipulated testimony of the medical examiner established that Mr. Daniel was shot ten times and Ms. London was shot thirteen times, by two different guns. N.T. 9/9120 13 

### at 160-161. 

### The 

### cr

i me scene investigator testified that 25 pieces of ballistics evidence were recovered from the crime scene. NT. 9/10/2013 

### at 52-71 . Further, Mr. Rigney testified that, when he, 

### defendant , and Mr, 

### James were surveying the proceeds of

### the robbery, Mr. James asked defendant whether be "finish [ed)" Ms. London, to which defendant responded, "[gjuaranteed." N.T. 9/1012013 

### at 126. All of this was compelling evidence that defendant acted with the specific intent to kill Mr.



### 12Circulated 11/25/2014 09:30 AM 

# , . . 

# .-. - 

# -- _. ' 

# ._-_ ......-.- 

# ___,-.._"_.., , ..;..**~.,** 

# .. _ 4

_'·_________

- 

# n

..... .. Daniel and Ms. London when he repeatedly shot them. Accordingly, UIC evidence was pluinly sufficient to support thejury ' s verdict oftirst-degree murder , 

### B. Weight of the Evidence Defendant claims that "the verdict is not supported 

### by the greater weight of the evidence . 

### RaUter. the greater weight 

### of the evidence did not establish that the Defendanl was a principal. conspirator, nor an accomplice to any orthe crimes cbarged. lbe greater weight ofthe evidence only estabHshed that the Defendant was in proximity to the proceeds of the crime, after the crime occulTed. The verdict was based all speculation, conjecture. and surmise, which is not permissible:' Statement of Errors at**~** 2. This claim is without merit. 11 is wcll·established that a new trial may only be granted by the ninl court where the verdict was 

### so yontrary to 

### the weight of the evidence 

### as to "shock one 's sense of jus

### lice." Commonwealth 

### v. Rossetti, 

### 863 A.2d 1185, 1191 (pa. 

### Super. 2004), appeal dellied, 

### 878 A.2d 864 (Pa. 2005) (quo ting Commonweal{h v. HUrlter, 554 A.2d 550, 555) (Fa. Super . 1989)). Moreover. credibility determinations are solely within the prov ince of the fact-finder, and "an appellate court may not reweigh the evidence and substitute its judgment for that of the finder of fact." Commonwealth v. Tay/or,63 A.3d 327 

### (Pa. Super. 2013) (quoting Commo nwealth v. Shaffer , 

### 40 AJd 1250, 1253 (pa. 

### Super. 2012)) . Tn considering a claim UJat the trial 

### court erred in refusing to find that a verdict was against the 

### weight of the evidence, "appellate review is limited to whether the trial court palpably abused 

### its discretion in ruling on the weight claim ." Taylor, 

### 63 A.3d at 327 (quoting Shaffer, 

### 40 AJd at 1 253). The overwhelming evidence outlined above plainly establis h ed that defendant committed the crimes of which he was convicted. Because the evidence fully supported the verdict, the COW1 did nol abuse its discretion in denying defendant's motion for a new triaL



### 13Circulated 11/25/2014 09:30 AM ----. _···_·-·-1



### Ill. CONCLUSION For aU 

### of the foregoing reasons, the Court 's judgment of sentence should be 

### affirmed.



### BY THE COURT :

# ~~~ GLENN B. 

### BRONSON, J.

14