J-S63018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SEAN AUSTIN,

Appellant No. 966 EDA 2015

Appeal from the Judgment of Sentence November 7, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009078-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 21, 2016

Appellant, Sean Austin, appeals from the judgment of sentence 

entered following his convictions of one count each of second-degree 

murder, robbery, burglary, unlawful possession of a firearm, possession of 

an instrument of crime (“PIC”), and two counts of conspiracy. We affirm.

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

In the early morning hours of July 12, 2011, after having 

developed a criminal plan with Oren Thomas (“Thomas”) also 

known as “O” and Basemy Gabriel (“Gabriel”) also known as 

“Basir” or “Boz”[], Appellant and Gabriel entered the apartment 

of the decedent, Ronald Taylor (“Taylor”), with the intent to steal 

money and drugs. Thomas had told Appellant and Gabriel how 

to gain access to the apartment and provided information as to 

where the drugs would be found once they were inside. The 

apartment was located on the second floor of 1830 West 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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Cheltenham Avenue in the City and County of Philadelphia. It 

was after midnight when the two (2) men entered the apartment 

and Appellant was armed with a revolver. Taylor and his ten 

(10) year-old son were asleep on the couch, however the 

decedent awoke and confronted Appellant. Appellant shot 

decedent two (2) times in the chest with a .32 caliber revolver 

prior to fleeing the apartment with Gabriel. The decedent’s son 

did not wake up until the next morning, whereupon he 

discovered his father dead. The child searched his father’s 

pockets looking for a phone to call for help, however found that 

the phone was gone.

Thomas waited nearby for Appellant and Gabriel to enter 

and rob the decedent. From his vantage point, he could see 

Appellant, Gabriel, and Taylor. As he waited, he heard two (2) 

gunshots then left the area and went to Appellant’s house. 

When Appellant arrived home, he told Thomas that he had to 

shoot decedent in the leg and that he had gotten nothing in the 

robbery. The next day Appellant and Thomas spoke again and 

Appellant admitted shooting decedent and “putting him to 

sleep”.

Taylor was pronounced dead at 8:33 A.M. on July 12, 

2011. An autopsy was performed by Associate Medical Examiner 

Dr. Marlon Osbourne. Decedent had suffered two (2) gunshot 

wounds, one (1) to the midline chest and one (1) to the left side 

of the chest, which caused extensive internal bleeding. The 

cause of death was found to be a gunshot wound to the chest. 

The manner of death was found to be homicide. Both pieces of 

ballistics evidence from the decedent’s body were consistent with 

having been fired from a .32 caliber revolver.

Thomas was later arrested and made a statement to police 

after receiving his Miranda1 warnings. Thomas entered a guilty 

plea to the Murder, Conspiracy, and Robbery of Taylor prior to 

testifying at Appellant’s trial. Thomas was awaiting sentencing 

at the time he testified at Appellant’s trial. Gabriel was also 

arrested and made a statement to police after receiving his 

Miranda2 warnings. Gabriel entered a guilty plea to the Murder 

of Taylor prior to testifying at Appellant’s trial.

1 Miranda v. Arizona, 384 U.S. [436], at 475-477, 86 

S.Ct. 1602, at 1628-1629, 16 L.Ed.2d 694 (1966). A 

person must, before any questioning, be warned that 
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he has a right to remain silent, that any statement 

he does make may be used as evidence against him, 

and that he has a right to presence of an attorney, 

retained or appointed.

2

Id.

Trial Court Opinion, 9/16/15, at 2-4.

On August 29, 2014, a jury convicted Appellant of the crimes stated 

above. On November 7, 2014, the trial court sentenced Appellant to serve a 

term of incarceration of life without parole for the second-degree murder 

conviction. No further penalty was imposed for the remaining convictions. 

Appellant filed timely post-sentence motions, which were denied by 

operation of law on March 13, 2015. This timely appeal followed. Both 

Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

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 or scientific evidence linking the Appellant to 

possession of any firearm or to the victim’s apartment, where 

the witnesses were corrupt and polluted sources who received 

favorable treatment from the Commonwealth in return for their 

testimony against the Appellant, where there was no 

corroboration and where the Appellant lived openly in the 

neighborhood without any indicia of guilt until his arrest.

II. Whether the adjudication of guilt is based upon insufficient 

evidence because it was an unreasonable inference in 

contradiction to the physical facts and in contravention to human 

experience to conclude beyond a reasonable doubt that the 

witnesses were truthful where there was no physical or scientific 

evidence linking the Appellant to the possession of a firearm or 

to the victim’s apartment and where the only witnesses against 

the Appellant were corrupt and polluted sources seeking 

favorable treatment from the Commonwealth.
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Appellant’s Brief at 6.

Appellant first argues that the trial court erred in denying his postsentence motion challenging the weight of the evidence. Appellant’s Brief at 

16-18. Essentially, Appellant contends the verdict reflects that the jury 

improperly credited the testimony of his co-conspirators indicating that 

Appellant killed Taylor during a burglary of Taylor’s home.

In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme 

Court set forth the following standards to be employed in addressing 

challenges to the weight of the evidence:

A motion for a new trial based on a claim that the verdict 

is against the weight of the evidence is addressed to the 

discretion of the trial court. Commonwealth v. Widmer, 560 

Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000); 

Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 

1189 (1994). A new trial should not be granted because of a 

mere conflict in the testimony or because the judge on the same 

facts would have arrived at a different conclusion. Widmer, 560 

A.2d at 319-20, 744 A.2d at 752. Rather, “the role of the trial 

judge is to determine that ‘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 320, 744 A.2d at 752 (citation omitted). It has often been 

stated that “a new trial should be awarded 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.” Brown, 538 Pa. 

at 435, 648 A.2d at 1189.

An appellate court’s standard of review when presented 

with a weight of the evidence claim is distinct from the standard 

of review applied by the trial court:

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question 
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of whether the verdict is against the weight of the 

evidence. Brown, 648 A.2d at 1189. Because the 

trial judge has had the opportunity to hear and see 

the evidence presented, an appellate court will give 

the gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial 

court’s determination that the verdict is against the 

weight of the evidence. Commonwealth v. 

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). 

One 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.

Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis 

added).

This does not mean that the exercise of discretion by the 

trial court in granting or denying a motion for a new trial based 

on a challenge to the weight of the evidence is unfettered. In 

describing the limits of a trial court’s discretion, we have 

explained:

The term “discretion” imports the exercise of 

judgment, wisdom and skill so as to reach a 

dispassionate conclusion within the framework of the 

law, and is not exercised for the purpose of giving 

effect to the will of the judge. Discretion must be 

exercised on the foundation of reason, as opposed to 

prejudice, personal motivations, caprice or arbitrary 

actions. Discretion is abused where the course 

pursued represents not merely an error of judgment, 

but where the judgment is manifestly unreasonable 

or where the law is not applied or where the record 

shows that the action is a result of partiality, 

prejudice, bias or ill-will.

Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v. 

S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-

[11]85 (1993)).
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Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a 

new trial based on a weight of the evidence claim is the least assailable of its 

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

The jury, sitting as the finder of fact, chose to believe the evidence 

presented by the Commonwealth and to disregard the version of events 

presented by Appellant, as was its right. The trial court made the following 

comprehensive observation regarding the evidence offered by the 

Commonwealth:

This issue lacks merit as in the instant case, the jury’s 

verdict of guilty does not shock the conscience. At trial, the 

Commonwealth presented the testimony of both co-conspirators 

and the decedent’s son to establish that Appellant was the 

perpetrator of Second Degree Murder. Thomas testified that he 

knew Taylor, had been in his apartment before, and believed 

that Taylor had approximately $25,000-$35,000 worth of 

marijuana in his apartment on the night of July 11, 2011. (N.T. 

8/26/14 at 118-119, 144). Thomas told Appellant and Gabriel 

about his belief, and enlisted their help to rob Taylor. Id. at 118, 

119. Thomas told Appellant and Gabriel how to gain access to 

the apartment and provided information as to where the drugs 

would be found once they were inside. Id. at 118-119, 121.

The Commonwealth then presented the testimony of 

Gabriel who corroborated the testimony of Thomas. Gabriel 

testified that the three (3) males planned for Appellant and 

Gabriel to enter Taylor’s apartment and rob him. Id. at 174. 

The Appellant was known to Gabriel as he lived on Gabriel’s 

block. Id. at 173. Gabriel testified that he had entered the 

apartment of decedent with Appellant with the intent of robbing 

the decedent. Id. at 175. Gabriel saw a revolver in Appellant's 

hand as they went up the stairs to the apartment. Id. When 

they entered the apartment both decedent and a small boy were 

asleep on a couch inside. Id. at 176. As Gabriel and Appellant 

searched the apartment, he heard an argument between 

Appellant and decedent followed by a gunshot. Id. at 176. As 

he was leaving the apartment, Gabriel saw Appellant with a gun 
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in his hand, and Taylor on the floor. Id. at 178. Appellant shot 

the decedent, causing serious bodily injury that resulted in his 

death. In a statement to police, Thomas testified that Appellant 

had a .32 caliber revolver on the night of the incident. Id. at 

141-142. Both pieces of ballistics evidence from the decedent’s 

body were consistent with having been fired from a .32 caliber 

revolver. (N.T. 8/27/14 at 29, 30). Taylor’s son testified that 

his father’s cell phone was gone. (N.T. 8/26/14 at 77.)

Thomas testified that at the time of the Robbery, he 

waited outside of the decedent’s house where he could see 

Appellant and Gabriel through the windows in Taylor’s 

apartment. Id. at 124. As he was waiting, Thomas heard two 

(2) gunshots then he went to Appellant’s house where Appellant 

and Gabriel were already located. Id. at 124. Appellant told 

Thomas that he had gotten nothing in the robbery, and later 

admitted shooting decedent and “putting him to sleep”. Id. at 

125, 127. Gabriel testified that subsequent to the robbery 

Appellant said he had to “put decedent down”. Id. at 183.

The Commonwealth also provided testimony through 

Thomas that he had entered a guilty plea to Murder, Robbery, 

and Conspiracy as related to the decedent and was awaiting 

sentencing. Id. 108 et. seq., see 117, 142-144. Thomas also 

testified that he had a prior conviction for Robbery. Id. Thomas 

testified that [he] hoped that he would receive something less 

than the maximum of 50 to 100 years that could result from his 

plea, by testifying against Appellant. Id. at 153-154. Gabriel 

testified that he had also entered a guilty plea to Third Degree 

Murder and Conspiracy as related to the decedent but that he 

had not been sentenced yet. Id. at 172, 193. Gabriel testified 

that he hoped that he would receive something less than the 

maximum of 40 to 80 years that could result from his plea, by 

testifying against Appellant. Id. at 205-207. The jury was 

instructed with the standard instruction on how to treat 

accomplice testimony as well as how to treat testimony where 

there had been a prior crimin falsi conviction. The jury, as the 

fact finder, had the sole discretion of assessing the credibility of 

witnesses at trial. The finder of fact is free to believe all, part, or 

none of the evidence and to determine the credibility of 

witnesses. Here, the jury chose to believe Appellant’s coconspirators in tandem with the ballistics evidence and came to 

the conclusion that Appellant was guilty of Second Degree 

Murder. The verdict was not against the weight of the evidence.
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Trial Court Opinion, 9/16/15, at 5-7.

Based upon our review of the record, we are compelled to agree with 

the trial court. Here, the jury was free to believe all, part, or none of the 

evidence against Appellant. The jury weighed the evidence, both testimonial 

and physical, and concluded Appellant perpetrated the crimes in question. 

This determination is not so contrary to the evidence so as to shock one’s 

sense of justice. We decline Appellant’s invitation to assume the role of factfinder and to reweigh the evidence. Accordingly, we conclude that the trial 

court did not abuse its discretion in refusing to grant relief on Appellant’s 

challenge to the weight of the evidence.

In his second issue, Appellant purports to argue that there was 

insufficient evidence to support his convictions. Appellant’s Brief at 18-20. 

We analyze arguments challenging the sufficiency of the evidence under the 

following parameters:

Our standard when reviewing the sufficiency of the 

evidence is whether the evidence at trial, and all reasonable 

inferences derived therefrom, when viewed in the light most 

favorable to the Commonwealth as verdict-winner, are sufficient 

to establish all elements of the offense beyond a reasonable 

doubt. We may not weigh the evidence or substitute our 

judgment for that of the fact-finder. Additionally, the evidence 

at trial need not preclude every possibility of innocence, and the 

fact-finder is free to resolve any doubts regarding a defendant’s 

guilt 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. When evaluating the credibility and 

weight of the evidence, the fact-finder is free to believe all, part 

or none of the evidence. For purposes of our review under these 
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principles, we must review the entire record and consider all of 

the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) 

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super. 

2006)).

Instantly, for the following reasons, Appellant has abandoned any 

argument concerning the sufficiency of the evidence. Regarding sufficiencyof-the-evidence issues, an appellant must specify the elements upon which 

the evidence was insufficient in order to preserve the issue for appeal. See 

Commonwealth v. Williams, 959 A.2d 1252, 1257–1258 (Pa. Super. 

2008) (finding waiver where the appellant failed to specify the elements of 

particular crime not proven by the Commonwealth). See also 

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (finding 

claim waived under Williams for failure to specify either in Rule 1925(b) 

statement or in argument portion of appellate brief which elements of crimes 

were not proven beyond a reasonable doubt).

Appellant’s Pa.R.A.P. 1925(b) statement presents the following 

pertinent issue, which fails to specify the elements of the crimes allegedly 

not proven by the Commonwealth:

2. The adjudication of guilt is based upon insufficient evidence 

because it was an unreasonable inference to conclude beyond a 

reasonable doubt that the witnesses were telling the truth where 

there was no physical and scientific evidence linking the 

defendant to the possession of any firearm or to the victim’s 

apartment and where the only witnesses against the defendant 
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were corrupt and polluted sources seeking favorable treatment 

from the Commonwealth.

Pa.R.A.P. 1925(b) Statement (Record Entry 14), 4/21/15, at 1.

Likewise, Appellant has failed to specify in his appellate brief the 

elements of the various crimes that allegedly were not established by the 

Commonwealth. Rather, Appellant’s argument consists of citation to general 

case law, challenges to the credibility and reliability of the testimony offered 

by his co-conspirators, and the lack of physical evidence produced by the 

Commonwealth. Appellant’s Brief at 18-20. Appellant’s argument for this 

issue begins with the following introduction:

While legally the Commonwealth should be given the 

benefit of all reasonable inferences as the verdict winner such 

deference should not be accorded where the evidence that was 

offered to support the verdict is in contradiction to the physical 

facts and defies human experience. Here the benefit that is to 

be accorded to the Commonwealth rests solely on the credibility 

determinations the jury made as to the truthfulness of the 

testimony of Thomas and Basemy. But such a determination 

was not reasonable because of the absence of physical facts 

corroborating their corrupt and polluted testimony.

Appellant’s Brief at 18-19. Appellant’s argument on this issue ends with the 

following summation:

Furthermore, the Appellant never fled, never concealed himself, 

never threatened another to silent and never displayed any of 

the indicia of guilt or guilty conscious. That the jury would have 

ignored that vital circumstance and credited the evil motives of 

Thomas and Basemy was similarly not reasonable. Since the 

inferences drawn from the testimony as to the credibility of 

Thomas and Basemy were unreasonable and because the jury 

unreasonably inferred the Appellant’s guilt in contradiction to the 

physical facts and in contravention to human experience this 
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verdict is not based upon sufficient evidence and should be 

vacated.

Appellant’s Brief at 19-20. Consequently, Appellant’s non-specific claim 

challenging the sufficiency of the evidence, which fails to state the exact 

elements of the particular crimes allegedly not proven by the 

Commonwealth, is waived. Williams.

Moreover, to the extent that Appellant contends that the jury failed to 

properly consider the evidence and wrongly credited the testimony 

presented by the Commonwealth in determining the verdicts, we observe 

that a review of the sufficiency of the evidence does not include an 

assessment of the credibility of the testimony. Commonwealth v. Wilson, 

825 A.2d 710, 713-714 (Pa. Super. 2003). Such a claim is more properly 

characterized as a challenge to the weight of the evidence. Id. A challenge 

to the weight of the evidence questions which evidence is to be believed. 

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006). 

Indeed, claims challenging the weight of the evidence and sufficiency of the 

evidence are clearly distinct. See Commonwealth v. Widmer, 744 A.2d 

745 (Pa. 2000) (discussing the distinctions between a claim challenging the 

sufficiency of the evidence and a claim that the verdict is against the weight 

of the evidence). See also Commonwealth v. Palo, 24 A.3d 1050, 1055 

(Pa. Super. 2011) (explaining that the appellant’s “sufficiency” argument 

directed entirely to the credibility of the Commonwealth’s chief witness 

challenged the weight, not the sufficiency, of the evidence). “A true weight 
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of the evidence challenge concedes that sufficient evidence exists to sustain 

the verdict but questions which evidence is to be believed.” 

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006) 

(quoting Commonwealth v. Galindes, 786 A.2d 1004, 1013 (Pa. Super. 

2001)).

Thus, this argument goes to the credibility of the testimony of the 

witnesses, and is, therefore, not an attack on the sufficiency of the evidence, 

but an allegation regarding the weight it should have been afforded. 

Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2011). 

Therefore, to the extent that Appellant intermingles his sufficiency argument 

with challenges to the jury’s findings pertaining to the credibility of the 

witnesses and determination of the weight of the evidence presented, we 

observe that we have reviewed a proper challenge to the weight of the 

evidence in the first issue presented by Appellant and concluded that no 

relief is due.1

Judgment of sentence affirmed.

____________________________________________

1

In the event that we had not found Appellant’s attempted challenge to the 

sufficiency of the evidence waived and concluded that it presents an 

appropriate challenge to the sufficiency of the evidence, we would have 

affirmed on the basis of the trial court’s discussion of the issue, which 

concludes as follows: “All of the elements of the various crimes for which 

[A]ppellant was convicted were established during trial. Thus, this [c]ourt 

finds that viewed in a light most favorable to the Commonwealth, there was 

sufficient evidence to establish the Appellant as the perpetrator of these 

crimes.” Trial Court Opinion, 9/16/15, at 7-9.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2016