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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JULIAN FRISBY, :

:

Appellant : No. 1148 EDA 2014

Appeal from the Judgment of Sentence March 20, 2014

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0008244-2011

BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 23, 2015

Appellant, Julian Frisby, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Philadelphia County. He challenges 

the sufficiency of the evidence regarding his convictions for first degree 

murder,1criminal conspiracy,2firearms not to be carried without a license,3

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2502(a).

2 18 Pa.C.S. § 903(c).

3 18 Pa.C.S. § 6106(a)(1).
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and possession of an instrument of crime.4 Appellant argues eyewitness 

identification testimony was unreliable. We affirm.

The trial court summarized the trial evidence, viewed in the light most 

favorable to the Commonwealth, as follows:

[O]n April 24, 2011, at about 5:35 p.m., Joel Seay was 

at his home at 1341 North 55th Street celebrating the 

Easter holiday with his wife, Cheryl Anne Seay, father-inlaw, Allan Graham, friend, Valerie Brewer, and his eighteen 

year old son, Jarell Seay. Two men, later identified as 

[Appellant] and his co-conspirator, Alan Berks, knocked at 

the door and asked for Jarell. Joel waited with the two 

men on the porch and spoke to [Appellant] briefly while 

Jarell came to the door. During this time, Joel was 

standing about five to six feet from [Appellant] and noticed 

tattoos of flames on [Appellant’s] neck. Jarell spoke with 

Berks while Joel waited in the doorway. When Jarell 

turned to go back into the house, [Appellant] pulled out a 

gun and shot Jarell twice in the back. As [Appellant] and 

Berks fled from the scene, Joel saw one of them drop 

something. [N.T. Trial, 3/13/14, at 106-10, 117-18, 120, 

133].

The next day, Joel told friends and family that the 

shooter had tattoos of flames on his neck. Marissa 

Jefferson, a neighbor of the Seay family, was asked by 

friends of Jarell if they could look on her phone and 

Facebook account for pictures of men with flame tattoos. 

The group showed Joel a photograph that depicted 

[Appellant] shirtless and with long hair. Joel recognized 

[Appellant] as the shooter, but indicated that the shooter 

had had shorter hair. The group showed Joel a second 

photograph that depicted [Appellant] with shorter hair. 

Joel was certain of his identification after seeing the 

second picture. On April 27, 2011, Joel gave a statement 

to police and identified [Appellant] from a photo array 

containing a police photograph of [Appellant]. Joel Seay 

 

4 18 Pa.C.S. § 907(a).
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identified [Appellant] three times in court: on July 19, 

2011 at the preliminary hearing, on July 30, 2013 at the 

first trial, and at the trial from which this appeal arises. 

[Id. at 11, 135, 134-44; N.T. Trial, 3/14/14 at 137-41; 

Commonwealth Exs. 32, 61]. 

On the night of the murder, Allan Graham, Jarell Seay’s 

grandfather, decided to leave the Easter celebration to go 

to the gym. When Graham left the house, he walked by 

Joel, [Appellant], and Berks on the porch as they were 

speaking. On April 28, 2011, Graham identified 

[Appellant] from a police photo array as the man he saw 

on the porch. Graham also identified [Appellant] at trial. 

[N.T. Trial, 3/14/14 at 64, 68, 75-76].

On April 24, 2011, at about 5:35 p.m., Valerie Brewer, 

a friend of the Seay family, was at the Seay’s house for 

Easter dinner. Brewer was sitting at the dining room table 

when she observed [Appellant] and another man come to 

the front door. She saw Joel answer the door and summon 

Jarell. She saw Jarell speak to the two men and 

[Appellant] shoot Jarell. She then saw both men run 

away. The next day, Brewer identified [Appellant] from a 

Facebook photo at the Seay house. Brewer identified 

[Appellant] at both trials. [Id. at 25, 28-32, 39, 42, 44].

Ronald Kegler lived across the street from the Seay 

house on the 1300 block of 55th Street. On the night of 

the murder, he was walking to his car when he saw 

[Appellant] and two others heading towards his car which 

was parked near the Seay house. Kegler got in his car and 

drove away. On April 27, 2011, Kegler identified 

[Appellant] in his statement to police. On July 19, 2011, 

Kegler identified [Appellant] at the preliminary hearing. 

[Id. at 7-10, 16, 22].

Shortly after the shooting, Police Officer Joseph Ford 

arrived at 1341 North 55th Street. Officer Ford and [sic] 

transported the unconscious Jarell Seay to the Hospital at 

the University of Pennsylvania, where he was pronounced 

dead at 6:01 p.m. According to Dr. Edwin Lieberman, an 

expert in forensic pathology, Jarell Seay sustained two 

penetrating gunshot wounds that caused his death; a 

wound to his back that struck his pancreas, liver, and 

lungs, and another wound to his right breast, injuring his 
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lung and aorta. [N.T. Trial, 3/13/14, at 52, 58, 61-62, 66-

67, 72; N.T. Trial, 3/14/14, at 98-100].

At approximately 5:36 p.m., Officer Edward Fidler of the 

Crime Scene Unit arrived at 1341 North 55th Street. 

Officer Fidler recovered two .380-caliber fired cartridge 

casings, a cell phone cover, and a blood sample from the 

porch. It was later determined that DNA taken from the 

cell phone cover matched Alan Berks. [N.T. Trial, 3/13/14, 

at 76, 83-84; N.T. Trial, 3/17/14, at 21].

Detective Thorsten Lucke, an expert in forensic video 

recovery and analysis, recovered surveillance video from 

5453 Mater Street. The video showed three individuals 

come from the 1300 block of Allison Street, [Appellant’s] 

block, walk one block up Master Street, and turn onto 55th 

Street, the Seay block. Although no identification could be 

made from the video, it confirms that three individuals 

were in the vicinity of the Seay house. It shows some 

vague movements and then two individuals running back 

towards the 1300 block of Allison Street. [N.T. Trial, 

3/13/14, at 171, 182, 195; N.T. Trial, 3/17/14, at 39, 41, 

43, 46].

On April 29, 2011, Detective Tacey Byard executed a 

search warrant on [Appellant’s] home at 1333 North 

Allison Street. Detective Byard recovered one box of 

bullets marked Remington, containing one .32-caliber live 

round and three .380-caliber live rounds. Detective Byard 

also recovered a letter, post marked June 23, 2010, sent 

from Berks to [Appellant] while Berks was incarcerated. 

[N.T. Trial, 3/17/14 at 21-23].

According to Police Officer Ronald Weitman, an expert 

in firearms identification and ballistics, the projectile 

recovered by the medical examiner’s office was a .380-

caliber automatic. The two .380-caliber fired cartridge 

casings recovered from the scene were fired from the 

same unrecovered .380-caliber automatic firearm. [N.T. 

Trial, 3/14/14, at 161-63, 166, 168, 170-71].

William Cooney of the Juvenile Probation Department 

testified that both [Appellant] and Berks had tattoos that 

indicated they were affiliated with the 56th and Master 

Street gang. Officer Cooney also explained that the letter 
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from Berks postmarked June 23, 2010 that was recovered 

from [Appellant’s] house had 56th and Master written on 

the envelope in large print. On the letter inside, Berks 

addressed [Appellant] as “J-Roc” in large print surrounded 

by a drawing of flames. Berks had written “MS” inside the 

letter “O” of “J-Roc.” [N.T. Trial, 3/17/14, at 9, 14-15].

On April 28, 2011, an arrest warrant was prepared for 

[Appellant]. For several days after the arrest warrant was 

issued, Detective Sean Mellon of the Fugitive Squad 

searched for [Appellant] at 1333 North Allison Street and 

174 Rosemar Street in Philadelphia. On May 5, 2011, 

[Appellant] was arrested while hiding in the basement of 

1208 Powell Street. [N.T. Trial, 3/14/14, at 128-35].

[Appellant] presented testimony from two alibi 

witnesses, which was rejected by the jury. Ava Browning, 

a friend of the Frisby family, testified that on the day of 

the murder she was walking home near 55th and 

Thompson Streets, about two blocks from the Seay home, 

when she heard gunshots. As she heard the gunshots, 

Browning saw [Appellant] sitting with a group of people on 

the steps of a home on Thompson Street. [N.T. Trial, 

3/17/14, at 55-58].

Sebastian Frisby, [Appellant’s] brother, also testified on 

behalf of the defense. Frisby testified that around 5:30 

p.m. on the day of the murder, he was with [Appellant] on 

Thompson Street watching a fight. While watching the 

fight, he heard two gunshots. As Sebastian Frisby walked 

to his home on Al[l]ison Street, about two blocks from the 

Seay house, he saw Berks coming down the street from 

Master Street. At that time, Berks had flame tattoos on 

his neck. When Sebastian Frisby saw Berks about a week 

after the murder, Berks had added tattoos of bricks over 

his flame tattoos. [Id. at 81-82, 88-92].

Alexis Marie Frisby, [Appellant’s] mother, and Officer 

Dionne Madison offered testimony as to the defendant’s 

good character. [Id. at 132-35]. 

Trial Ct. Op., 6/11/14, at 2-6.
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On July 29, 2013, Appellant appeared before the court and elected to 

be tried by jury. On August 5, 2013, a mistrial was declared after the jury 

failed to reach a unanimous decision. 

A second jury trial started on March 11, 2014. On March 20, 2014, 

the jury found Appellant guilty of the following: first degree murder, criminal 

conspiracy, firearms not to be carried without a license, and possession of an 

instrument of crime. The next day, the court sentenced Appellant to life 

imprisonment without the possibility of parole for murder, twenty years’ 

imprisonment for conspiracy, one to two years’ imprisonment for firearms 

not to be carried without a license, and no further penalty for possession of 

an instrument of crime. The court ordered the sentences to run 

concurrently. Charges for carrying firearms on public streets or public 

property in Philadelphia5and recklessly endangering another person6 were 

nolle prossed.

Appellant filed a timely notice of appeal on April 14, 2014. After 

obtaining two extensions of time, he filed a timely court-ordered Pa.R.A.P. 

1925(b) statement of matters complained of on appeal on May 30, 2014. 

On June 11, 2014, the trial court issued its opinion. 

Appellant raises the following issue:

 

5 18 Pa.C.S. § 6108.

6 18 Pa.C.S. § 2705.
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Whether the evidence was insufficient as a matter of law to 

sustain Appellant’s conviction[s] for murder in the first 

degree, carrying a firearm without a license, and 

possession of the instrument of crime where there was no 

physical evidence connecting Appellant to the crime and 

eyewitness testimony was so inconsistent to render it 

unworthy of belief[.]

Appellant’s Brief at 6.

Appellant challenges the sufficiency of identification evidence for these

convictions. Id. at 25. He does not challenge sufficiency as to any 

particular element, but rather argues the eyewitness identifications were 

insufficient to sustain his convictions because they were tainted, lacked an 

independent basis, and were unsupported by physical evidence. Id. at 28-

33. Appellant claims the identifications were tainted because three of the 

four witnesses viewed Appellant’s photograph prior to formally identifying 

Appellant to the police. Id. at 29. Appellant also claims the identifications 

were tainted because the witnesses spoke with each other about their 

identifications, statements, and what they saw. Id. at 30. Appellant further 

contends no independent basis for the testimony exists because at least two 

witnesses had not seen Appellant or his co-conspirator before the shooting, 

the witnesses saw the shooter’s face for a short amount of time, one witness 

had a questionable vantage point, and the witnesses’ testimony that they 

identified Appellant because they recognized his face lacked merit as circular 

logic. Id. at 31-32. Finally, Appellant argues that no physical evidence ties 

Appellant to the scene other than the fact that the shooter used the same 
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caliber of bullets recovered from Appellant’s apartment. Id. at 33. We 

disagree.

The standard of review for a sufficiency of the evidence challenge is 

well-established:

In reviewing the sufficiency of the evidence, we examine 

whether the evidence admitted at trial, and all reasonable 

inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, support 

the jury’s findings of all the elements of the offense 

beyond a reasonable doubt. The Commonwealth may 

sustain its burden by means of wholly circumstantial 

evidence.

Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013) (citations 

omitted). 

Identification evidence used to sustain a conviction “need not be 

positive and certain.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. 

Super. 2011) (en banc) (citations omitted). Indeed:

Although common items of clothing and general physical 

characteristics are usually insufficient to support a 

conviction, such evidence can be used as other 

circumstances to establish the identity of a perpetrator. 

Out-of-court identifications are relevant to our review of 

sufficiency of the evidence claims, particularly when they 

are given without hesitation shortly after the crime while 

memories were fresh. Given additional evidentiary 

circumstances, any indefiniteness and uncertainty in the 

identification testimony goes to its weight.

Id. (citations and punctuation omitted). 

Pennsylvania courts have “consistently held” eyewitness testimony to 

be sufficient evidence to sustain a first degree murder conviction. 
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Commonwealth v. Brooker, 103 A.3d 325, 331 (Pa. Super. 2014) (holding 

that sufficient evidence sustained murder conviction where eyewitness 

testified defendant shot victim in head and chest while witness watched from 

few feet away) (citing Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 

2013)). In Mattison, the defendant and his wife drove a woman and the 

woman’s friend to the apartment building of the woman’s boyfriend. 

Mattison, 82 A.3d at 390. The woman entered the apartment and 

confronted her boyfriend, who was with the woman’s childhood friend. Id. 

The defendant then entered the apartment with his gun drawn, and the 

woman returned to the car. Id. The defendant robbed and then fatally shot 

the boyfriend. Id. The woman and the friend she arrived with heard the 

gunshot from outside the apartment. Id. The defendant returned to the 

vehicle with what he stole and explained that the woman’s childhood friend 

fired a weapon at him. Id.

Police ultimately apprehended the defendant. Id. The woman’s 

childhood friend identified the defendant as the shooter in a photo array 

days after the incident, and again in a physical lineup. Id. Police charged 

the defendant with, inter alia, first degree murder. Id. 

At trial, the woman’s childhood friend testified that she saw the 

defendant kill the victim, the woman testified about the surrounding events, 

and the defendant’s wife corroborated the woman’s testimony. Id. at 391. 
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A jury convicted the defendant of first degree murder and sentenced him to 

death. Id.

The defendant appealed, arguing, inter alia, the evidence was 

insufficient to demonstrate he was the shooter. Id. at 393. The defendant 

contended the evidence indicated a crime of passion between fighting lovers 

followed by a subsequent cover-up by the woman and the victim’s friend. 

Id. The defendant further argued that the woman had the stronger motive 

and that her failure to immediately call the police was indicative of her guilt. 

Id.

On direct appeal, our Supreme Court affirmed, concluding “without 

hesitation” that the testimony of the woman’s childhood friend established 

the elements necessary to sustain the murder conviction where the witness 

testified that the defendant demanded and obtained drugs before fatally 

shooting the victim in the head. Id. at 392. In so doing, it rejected the 

defendant’s contentions that the physical evidence suggested a crime of 

passion and that the woman and her childhood friend had a stronger motive 

since these arguments “fail[ed] to view the evidence in the light most 

favorable to the Commonwealth as verdict winner.” Id. at 392-93. 

In the instant case, Joel Seay’s testimony established Appellant’s 

identity to sustain the first degree murder conviction when he testified that 

he observed and spoke to Appellant at a distance of about five to six feet 

before watching Appellant fatally shoot the victim. Trial Ct. Op. at 3 (citing 
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N.T. Trial, 3/13/14, at 11, 135, 134-44; N.T. Trial, 3/14/14, at 137-41; 

Commonwealth Exs. 32, 61). Joel Seay testified that Appellant and his coconspirator knocked on his door and asked to see the victim. Id. He 

testified that while waiting on his porch for the victim, he observed Appellant 

and his co-conspirator and spoke briefly with Appellant. Id. He further 

stated that he waited in the doorway while the men talked to the victim, and

that he saw Appellant shoot the victim twice. Id. at 2-3. Joel Seay 

identified Appellant from a photo array and three times in court. Based on 

this testimony, the jury could have found Appellant guilty of first degree 

murder beyond a reasonable doubt. See Mattison, 82 A.3d at 393.

Witness testimony and other evidence further support Appellant’s 

criminal convictions, and therefore “any indefiniteness and uncertainty in the 

identification testimony goes to its weight.” See Orr, 38 A.3d at 874. 

Valerie Brewer testified that she witnessed Appellant fatally shoot the victim, 

and identified Appellant at both trials. Trial Ct. Op. at 3-4 (citing N.T. Trial, 

3/14/[14], at 25, 28-32, 39, 42, 44). Allan Graham testified that Appellant 

was on the porch before the shooting and identified Appellant in a police 

photo array and at trial. Trial Ct. Op. at 3 (citing N.T. Trial, 3/14/14, at 64, 

68, 75-76).

The Commonwealth also introduced the posthumous testimony of 

Ronald Kegler, who identified Appellant as one of three men approaching the 

victim’s home near the time of the shooting. He identified Appellant in a 
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statement to police and at the preliminary hearing. Id. at 4 (citing N.T. 

Trial, 3/14/14, at 7-10, 16, 22). Appellant’s ties to Alan Berks also support 

this conviction. Berks’ DNA was on a cell phone cover found near the scene. 

Id. at 4 (citing N.T. Trial, 3/13/14, at 76, 83-84; N.T. Trial, 3/17/14, at 21). 

Berks and Appellant have tattoos consistent with the same gang, and police 

recovered a letter from Berks to Appellant that contained writing and 

markings consistent with a shared gang affiliation. Id. at 5 (citing N.T. Trial, 

3/17/14, at 9, 14-15). Video surveillance recovered from a nearby store 

and bullets recovered from Appellant’s home further corroborate this 

identification evidence. Id. at 5 (citing N.T. Trial, 3/13/14, at 171, 182, 

195; N.T. Trial, 3/14/14, at 161-63, 166, 168, 170-71; N.T. Trial, 3/17/14, 

at 21-23, 39, 41, 43, 46).

Appellant’s attempt to pose the reliability of identification evidence as 

a question of sufficiency rather than weight fails because multiple witnesses 

identified Appellant shortly after the murder and in court based on 

recognizing his face. Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. 

Super. 2006) (holding that any uncertainty in identification testimony is 

question of weight rather than sufficiency where two witnesses identified 

defendant as assailant in separate photographic arrays and preliminary 

hearing even though they expressed doubt at trial). Therefore, identification 

depends on the jury’s credibility determinations regarding the identification 

testimony rather than on admitted misidentifications or mistakes in 
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identification. Orr, 38 A.3d at 874 n.5. In Orr, the victim identified the 

defendant immediately following a robbery based only on the defendant’s 

clothing and red beard, but failed to identify him in a lineup or in court. Id.

at 874-75. Police arrested the defendant shortly after the robbery in a 

location consistent with the victim’s description, and recovered from the 

defendant exactly twenty-six dollars—the identical sum of money allegedly 

stolen. Id. at 870-71. The trial court found the defendant guilty, and he 

appealed. Id. The en banc Court found that the circumstantial evidence 

linking the defendant to the crimes sufficed to sustain the convictions. Id.

at 875. In so doing, the Orr Court declined to extend case law resolving 

identification reliability as a question of sufficiency rather than weight. See 

id. at 875 (distinguishing from Commonwealth v. Crews, 260 A.2d 771, 

772 (Pa. 1970) (holding evidence was insufficient to sustain first degree 

murder conviction where identification was based solely on defendant’s 

height, skin color, and gold sweater), and Commonwealth v. Grahame, 

482 A.2d 256, 259 (Pa. Super. 1984) (holding evidence was insufficient 

where based exclusively on victim’s identification of defendant and where 

victim testified she did not get good look at or know defendant, was unable 

to identify defendant in lineup, and testified, “[a]ll blacks look alike”)). 

As noted supra, multiple witnesses in the case sub judice

unequivocally identified Appellant before and during his trial, and other 

circumstantial evidence corroborates this testimony. Therefore the facts of 
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Crews and Grahame are readily distinguishable. Whereas in Crews, the 

defendant’s murder conviction relied solely on his likeness to the “very 

general description” of the assailant’s height and skin color as well as his 

possession of a sweater similar in color to the one worn by the assailant, 

Appellant’s conviction is supported by multiple witnesses testifying they 

recognize Appellant based on, inter alia, his face as well as by other 

circumstantial evidence. See Crews, 260 A.2d at 772. In Grahame, the 

eyewitness could not identify the defendant and acknowledged she could not 

identify the defendant, whereas here, multiple witnesses positively identified 

Appellant on multiple occasions. See Grahame, 482 A.2d at 259; see also

Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa. Super. 2014) 

(holding sufficient evidence sustained robbery conviction where victim’s 

“positive and unequivocal identification” of defendant based on clothing, 

build, and ethnicity occurred shortly after crime, victim identified defendant 

in preliminary hearing and trial, and victim’s purse was found in dumpster 

short distance from defendant’s residence); Commonwealth v. Harrison,

434 A.2d 808, 810 (Pa. Super. 1981) (“[A] positive, unqualified identification 

of defendant by one witness is sufficient for conviction even though half a 

dozen witnesses testify to an alibi”).

Appellant’s arguments that the testimony was not believable and that 

the outcome was unsupported by physical evidence lack merit because these 

contentions go to the weight of the evidence and “fail[ ] to view the evidence 
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in the light most favorable to the Commonwealth as verdict winner.” See 

Mattison, 82 A.3d at 393. 

To the extent Appellant attempts to argue that the identification 

testimony was inadmissible under the guise of his sufficiency argument, we 

find Appellant failed to object or file a motion to suppress the evidence. See

Trial Ct. Op. at 8. Appellant therefore waived the issue. See Pa.R.A.P. 

302(a). 

Finally, Appellant’s argument that the Commonwealth failed to prove 

motive is likewise not properly before the Court. See Mattison, 82 A.3d at 

393 (holding that defendant’s alternate theories about physical evidence and 

motive had “no place in making the legal determination of whether the 

evidence of record is sufficient to sustain [a] murder conviction”).

Based on the foregoing, Appellant’s argument that the identification 

evidence is not sufficient to sustain his convictions is meritless. Rather, the 

evidence viewed in the light most favorable to the Commonwealth supports 

the jury’s determination that Appellant is the one who committed these 

crimes. See id. at 392.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/23/2015