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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DENNIS MOORE, : No. 3119 EDA 2017

:

 Appellant :

Appeal from the Judgment of Sentence, August 16, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0006751-2016

BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 21, 2018

Dennis Moore appeals the August 16, 2017 judgment of sentence in 

which the Court of Common Pleas of Philadelphia County sentenced him to 

serve an aggregate term of life imprisonment without the possibility of 

parole for his convictions for first-degree murder, firearms not to be carried 

without a license, carrying firearms in public in Philadelphia, and possession 

of an instrument of crime.1 After careful review, we affirm.

The facts, as recounted by the trial court, are as follows:

At trial, Kenyatta Lyons testified that on August 6, 

2013, she lived on the 3300 block of Agate Street. 

During the night-time hours, she had gone around 

the corner from her home to a convenience store. 

She returned to Agate Street where she saw 

[appellant], whom she had known for about nine 

years. They chatted for about 10 minutes. She 

 

1 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, and 907, respectively.
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walked the distance of four or five houses toward her 

home. She turned around and saw [appellant] shoot 

Julius Fleming about five or six times. She said that 

the final shot was to Mr. Fleming’s head.

Ms. Lyons stated that she did not report the incident 

to the police because she felt that her life could be in 

danger. On March 18, 2016, the police approached 

her near her home and took her to homicide 

headquarters. She gave a signed statement to the 

police. She identified photographs of [appellant] and 

Julius Fleming.

Janice Fioravanti testified that on August 6, 2013, at 

about 11 p.m., she was inside her home on Agate 

Street when she heard what sounded like five 

firecrackers. She went outside and saw a man drive 

away on a bicycle. She found the body of 

Julius Fleming. She was taken to homicide 

headquarters where she gave a written statement 

and was shown some photographs. She thought 

that she recognized one photograph, but was not 

100 per cent sure that the photograph was that of 

the man on the bicycle.

Edward Jaje testified that on August 6, 2013, he was 

inside his home on the 3300 block of Agate Street, 

when he heard three shots, followed after a pause by 

two or three more shots. He looked out the window 

and saw a man stuffing something into his pants 

pocket and running to the house next door. He saw 

the man get on a bicycle and ride away. Mr. Jaje 

went outside where he saw Janice Fiorvante [sic] and 

the body of his neighbor, Julius Fleming.

Mr. Jaje gave a statement to police. Because he was 

afraid of retaliation, Mr. Jaje did not tell police that 

he had recognized the shooter. Sometime after the 

shooting, Mr. Jaje moved to another neighborhood. 

About three years after the shooting, police again 

interviewed Mr. Jaje, who then identified [appellant] 

in a photo array. In the course of his testimony, 

Mr. Jaje became upset. The Court called a recess so 

that Mr. Jaje could compose himself. The prosecutor 
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suggested that the courtroom be cleared. Defense 

counsel objected.

The Court stated:

I want to make sure that the courtroom 

does remain public. But in a situation 

such as this, I think it would be 

appropriate for me to clear the 

courtroom, both sides. So I am going to 

ask the people on both sides please stay 

in the hallway. We’ll call you back when 

it’s permitted. Thank you.

With the courtroom cleared, Mr. Jaje identified 

[appellant] as the shooter.

Dr. Albert Chu of the Medical Examiner’s office 

testified that Julius Fleming died from multiple 

gunshot wounds and that the manner of death was 

homicide. He said that the decedent had sustained 

five gunshot wounds—to the forehead, right lower 

jaw, head, chest and right shoulder.

A document from the Pennsylvania State Police was 

introduced into evidence certifying that [appellant] 

was not licensed to carry a firearm in Pennsylvania.

[Appellant’s] aunt, Charlese Lee, testified that 

[appellant] had a “very good” reputation for being a 

peaceful, nonviolent individual. [Appellant] did not 

testify.

Trial court opinion, 1/10/18 at 2-5 (citations to record omitted).

On August 24, 2017, following his conviction and sentencing, appellant 

filed a post-sentence motion and alleged that the verdict was against the 

weight of the evidence. On August 28, 2017, the trial court denied the 

motion. On September 26, 2017, appellant filed a notice of appeal. On 

October 2, 2017, the trial court ordered appellant to file a concise statement 
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of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a). On 

October 18, 2017, the trial court issued an amended order that stated the 

concise statement was due on or before December 19, 2017. Appellant 

complied with the order on December 18, 2017. On January 10, 2018, the 

trial court issued its opinion, pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issues for this court’s review:

I. Is [appellant] entitled to an Arrest of Judgment 

on all charges where the evidence is not 

sufficient to sustain the verdict?

II. Is [appellant] entitled to a new trial where the 

verdict is not supported by the greater weight 

of the evidence?

III. Is [appellant] entitled to a new trial where the 

[trial c]ourt impermissibly and 

unconstitutionally and without cause cleared 

the Courtroom depriving [appellant] of a public 

trial?

IV. Is [appellant] entitled to a new trial where the 

greater weight of the evidence does not 

support premeditation or a specific intent to kill 

on the part of [appellant]?

Appellant’s brief at 3.

Initially, appellant contends that he must be awarded an arrest of 

judgment on all charges as the verdict is not supported by sufficient 

evidence. Specifically, appellant asserts that the Commonwealth failed to 

establish premeditation necessary for first-degree murder. (Appellant’s brief 

at 7.)
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The Commonwealth argues2that appellant waived this issue because 

he did not raise it in his 1925(b) statement. (Commonwealth’s brief at 10.) 

In his Rule 1925(b) statement, appellant claimed that the evidence was 

insufficient because the Commonwealth failed to prove that he acted with 

malice. Here, in his brief to this court, appellant asserts that the 

Commonwealth failed to prove that he acted with the requisite intent. 

(Appellant’s brief at 7.)

Pennsylvania courts have consistently held that for sufficiency of the 

evidence challenges, an appellant’s Rule 1925(b) statement “needs to 

specify the element or elements upon which the evidence was insufficient.” 

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super. 2015), quoting 

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008) 

(citation omitted). Failure to do so results in waiver of the issue on appeal. 

Tyack. Furthermore, the failure to include an issue in the statement of 

errors complained of on appeal results in a waiver of that issue. See 

Pa.R.A.P. 1925(b)(vii).

Here, in the Rule 1925(b) statement, appellant asserted that the 

evidence was insufficient to prove first-degree murder because the 

Commonwealth failed to prove that he acted with malice. (Rule 1925(b)

 

2 The Commonwealth filed an application for an extension of time to file a 

brief and submitted a brief to this court before the court ruled on the

application. This court grants the application and will consider the brief. 
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statement, 12/18/17 at 1.) In his brief, appellant asserts that the evidence 

was insufficient to establish that he acted with premeditation.3

In Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017), the 

Supreme Court of Pennsylvania recently provided a comprehensive 

explanation of the concept of malice and distinguished it from specific intent. 

All types of murder are committed with malice while only first-degree 

murder is intentional. In Packer, our Supreme Court explained that malice 

is present where a defendant did not have a specific intent to kill but 

displayed a conscious disregard for an extremely high risk that his actions 

could cause death or serious bodily harm. Packer, 168 A.3d at 161, 168-

169.

As our supreme court explained in Packer, there is a distinct

difference between malice and specific intent as malice applies to all types of 

murder and a specific intent to kill is an element only of first-degree murder. 

Consequently, appellant did not raise the issue that the Commonwealth 

failed to provide evidence sufficient to prove specific intent in his statement 

of errors complained of on appeal. As a result, this issue is waived.

 

3 First-degree murder is defined as a criminal homicide committed by an 

intentional killing. 18 Pa.C.S.A. § 2502(a). An “intentional killing” is defined 

as “Killing by means of poison, or by lying in wait, or by any other kind of 

willful, deliberate and premeditated killing.” 18 Pa.C.S.A. § 2502(d). 
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Appellant next contends that he must be awarded a new trial, as the 

weight of the evidence does not establish that he committed first-degree

murder.

[T]he weight of the evidence is 

exclusively for the finder of fact who is 

free to believe all, part, or none of the 

evidence and to determine the credibility 

of the witnesses. An appellate court 

cannot substitute its judgment for that of 

the finder of fact . . . thus, we may only 

reverse the lower court’s verdict if it is so 

contrary to the evidence as to shock 

one’s sense of justice. Moreover, where 

the trial court has ruled on the weight 

claim below, an appellate court’s role is 

not to consider the underlying question 

of whether the verdict is against the 

weight of the evidence, . . . rather, 

appellate review is limited to whether the 

trial court palpably abused its discretion 

in ruling on the weight claim.

Commonwealth v. Kim, 888 A.2d 847, 851

(Pa.Super. 2005) (citations and quotations omitted). 

A motion for a new trial based on a challenge to the 

weight of the evidence concedes the evidence was 

sufficient to support the verdict. Commonwealth v. 

Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

Appellant argues that the verdict was against the weight of the 

evidence because the testimony of Kenyatta Lyons (“Lyons”) is suspect 

because she did not identify appellant as the shooter until over three years 

after the incident took place, the shooting happened at night, and Lyons had 

to turn around to look at where the shooting occurred. (Appellant’s brief at 
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9.) Appellant also asserts that Janice Fiorvanti’s (“Fiorvanti”) testimony was 

meaningless because though she testified that she heard shots and saw a 

man ride away on a bicycle, she could not identify appellant as the person 

on the bicycle with 100 percent certainty. (Id.) He also discounts the 

testimony of Edward Jaje (“Jaje”) because he was unwilling to testify until 

the courtroom was cleared. (Id. at 9.) He argues that this questionable 

evidence is offset by Charlese Lee’s testimony that appellant was of good 

character and had a peaceful reputation. (Id. at 10.)

Appellant appears to cast doubt on the credibility determinations of the 

jury. The jury is the fact-finder at trial. The jury has the authority to accept 

all, none, or some part of the evidence presented to it. See 

Commonwealth v. Quel, 27 A.3d 1033, 1038 (Pa.Super. 2011). This court 

may not reweigh the evidence and cannot substitute its judgment for that of 

the finder-of-fact. It is for the finder-of-fact to make credibility 

determinations. Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.Super. 

2009). Further, although appellant asserts that evidence of good character 

alone can create reasonable doubt, evidence of good character must be 

weighed and considered in connection with the other evidence in the case. 

See Commonwealth v. Sandusky, 77 A.3d 663, 673 (Pa.Super. 2013). 

The jury considered this evidence while also considering the evidence 

that supported the conviction. Based on the evidence presented, the guilty 

verdict was not so contrary to the evidence as to shock one’s sense of 
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justice. Appellant raises several issues pertaining to credibility, which is the 

sole purview of the finder-of-fact. The trial court did not abuse its discretion 

when it denied appellant’s post-trial motion.

Appellant next contends that he must be awarded a new trial because 

the trial court erred when it cleared the courtroom and deprived appellant of 

a public trial during Jaje’s testimony. (Appellant’s brief at 11.) 

[T]he right to a public trial is not 

absolute; rather, it must be considered in 

relationship to other important interests. 

In considering such other interests, a 

court must assess all of the 

circumstances to determine if they 

present a situation in which an exclusion 

order is necessary. If the court 

determines a necessity exists, it may 

then issue an exclusion order; but the 

exclusion order must be fashioned to 

effectuate protection of the important 

interest without unduly infringing upon 

the accused’s right to a public trial either 

through its scope or duration. 

Ultimately, the determination of whether 

to exclude spectators, as well as the 

determination of the scope and duration 

of an exclusion order, must be left to the 

sound discretion of the trial court 

because it alone is sufficiently close to 

the circumstances to apprehend fully the

subtleties that may be 

present.[Footnote 8] Thus, only if a trial 

court abused its discretion in issuing an 

exclusion order or in fashioning the order 

will reversible error be found on appeal. 

Therefore, we must determine: 

(1) whether the court abused its 

discretion in issuing the exclusion order; 

and (2) if it did not, whether it abused its 
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discretion in fashioning the scope and 

duration of the order.

[Footnote 8] For example, 

the trial court is in a position 

to assess demeanor which in 

turn may indicate fear, 

nervousness, and confusion 

in a witness, where an 

appellate court is not.

Commonwealth v. Knight, 469 Pa. 57, 65-66, 364 

A.2d 902, 906-907 (1976).

Commonwealth v. Conde, 822 A.2d 45, 49 (Pa.Super. 2003) (other 

footnotes omitted).

In Commonwealth v. Penn, 562 A.2d 833 (Pa.Super. 1989), appeal 

denied, 590 A.2d 756 (Pa. 1991), cert. denied, 502 U.S. 816 (1991), a

case cited by both parties and the trial court, this court addressed the issue 

of witness intimidation in terms of the trial court’s decision to clear a 

courtroom. In Penn, this court explained:

Witness intimidation and retaliation against 

witnesses are serious crimes which the 

Commonwealth has clear interest in deterring, 

detecting, and sanctioning. First and foremost, the 

Commonwealth has an interest in protecting its 

citizens from intimidation and injury by criminal 

conduct. Second, the Commonwealth also has an 

interest in protecting victims and witnesses from 

intimidation or retaliation because of the 

indispensable role they play in the operation of the 

justice system. . . . 

. . . .

Succinctly, if the means of justice are to be 

preserved and the ends of justice protected, courts 
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must exercise their discretion so as to dispel any 

belief that intimidation of victims or witnesses will 

serve the ends to which the intimidation is directed.

Id., 562 A.2d at 837 (citations omitted).

Here, Jaje began testifying on direct examination. When asked why he 

did not tell the police that he recognized the person he saw running to a 

bicycle and riding away when he looked out his window after he heard 

gunshots, Jaje replied that he did not tell police because he feared that 

appellant might retaliate against him if he learned that Jaje implicated 

appellant in the shooting. (Notes of testimony, 8/10/17 at 111.) The 

following interchange took place when Jaje was asked whether he could see 

the person in the courtroom that he saw get on the bicycle after he heard 

the gunshots:

Q: Now, Mr. Jaje, as you sit in this courtroom 

today, do you see the person you saw that 

night get onto the bike after you heard the 

gunshots?

THE COURT: Can you answer the question?

[Jaje]: I’m sorry?

THE COURT: Can you answer the question?

[Jaje]: Yes, sir.

BY MR. TUMOLO [the prosecuting attorney]:

Q. Can you just tell us what that person is 

wearing in the room?

[Jaje]: (Pause).
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Could I have a glass of water, please.

. . . .

[Jaje]: Could I have a glass of water, please.

THE COURT: A glass of water, please.

BY MR. TUMOLO:

Q: Do you need more water?

[Jaje]: I’m okay.

Q: Mr. Jaje, can you tell us the person in the 

courtroom that you just said was the one that 

got on the bike after you heard gunshots, can 

you tell us what he’s wearing or point to him 

with your finger?

[Jaje]: (Pause.)

THE COURT: Mr. Jaje, are you able to answer the 

question?

[Jaje]: I’m sorry?

THE COURT: Can you answer the question please.

BY MR. TUMOLO:

Q: Are you nervous right now, Mr. Jaje?

A: Yes, sir.

Q: Are you shaking a little bit?

A: Yes, sir.

Q: Do you need to take a quick recess or are you 

okay?

A: Please.
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THE COURT: We’ll take a recess.

. . . . 

THE COURT: The jury is not in the room. Counsel 

and the defendant are present.

MR. TUMOLO: Thank you, your Honor.

Your Honor, during the break your court staff 

who was outside with the witness did inform me the 

witness said that he would be more comfortable and 

ready to resume if the courtroom could be cleared. 

For that reason, given the obvious effect testifying is 

having on him, I’m going to make that request at 

this point. That both sides clear the courtroom to 

allow him to finish his testimony.

MR. MANDELL: And I would strongly object, your 

Honor. This is a public courtroom. The public is 

entitled to be in the courtroom. Family and friends 

of [appellant] are here and they should be allowed to 

see what takes place.

THE COURT: I want to make sure that the 

courtroom does remain public. But in a situation 

such as this, I think it would be appropriate for me 

to clear the courtroom, both sides. So I’m going to 

ask the people on both sides please stay in the 

hallway. We’ll call you back when it’s permitted. 

Thank you.

Id. at 113-117.

Here, the trial court had the opportunity to assess Jaje’s demeanor 

first hand prior to rendering the decision to clear the courtroom in order to 

protect Jaje from possible intimidation when Jaje was on the witness stand. 

This court finds that the trial court did not abuse its discretion when it 
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ordered that the courtroom be empty during the remainder of Jaje’s 

testimony.4

Judgment of sentence affirmed. Application for extension of time to 

file a brief is granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/18

 

4 Appellant also contends that he is entitled to a new trial where the weight 

of the evidence does not support premeditation or a specific intent to kill on 

the part of appellant. (Appellant’s brief at 3.) Although appellant lists this 

issue in his “Questions Presented,” he does not address it in the argument 

section of his brief. Consequently, this issue is waived. See

Pa.R.A.P. 2119; Hinkal v. Pardoe, 133 A.3d 738, 740-741 (Pa.Super. 

2016).