### J - S01011 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MALIK CAMERON , : : Appellant : No. 2010 EDA 2014 Appeal from the Judgment of Sentence June 4, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP - 51 - CR - 0002970 - 2013;

MC - 51 - CR - 0001492 - 2013 BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J. : FILED MAY 06, 2016 Malik Cameron (“Cameron”) appeals from the judgment of sentence entered following his conviction of aggravated assault, possession of an instrument of crime (“PIC”), and possession of a firearm by a prohibited person. 1 

### Counsel for Cameron has filed a Pet ition to withdraw from representation and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We grant counsel’s P etition to withdraw and affirm Cameron’s judgment of sentence. In its Opin ion, the trial court summarized the procedural and factual history underlying the instant appeal, which we adopt herein by reference. See Trial Court Opinion, 1/6/15, at 1 - 5 (unnumbered).

1 

### 18 Pa.C.S.A. §§ 2702, 907, 6105.

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- 2 -

Before addressing the merits of the claims raised by Cameron, we first must address his counsel’s Petition to withdraw from representation. See Commonwealth v. Daniels , 999 A.2d 590, 593 (Pa. Super. 2010) (stating that, “[w]hen presented with an Anders bri ef, this Court may not review the merits of the underlying issues without first passing on the request to withdraw.”) . The procedural requirements for withdrawal require counsel to (1) petition for leave to withdraw and state that, after making a conscien tious examination of the record, counsel has concluded that the appeal is frivolous; (2) provide a copy of the Anders brief to the defendant; and (3) inform the defendant that he has the right to retain private counsel or raise, pro se , additional argument s that the defendant deems worthy of the court’s attention. 2 

### Commonwealth v. Zeigler , 112 A.3d 656, 659 (Pa. Super. 2015). Here, counsel’s Petition to withdraw states that he reviewed the record and concluded that the appeal is frivolous. Additionall y, counsel notified Cameron that counsel was seeking permission to withdraw , and furnished Cameron with copies of the P etition to withdraw and the Anders brief, and
2 

### This Court’s decision in Commonwealth v. Millisock , 873 A.2d 748 (Pa. Super. 2005) and its progeny require that “[c]ounsel also must provide a copy of the Anders brief to his client.” Commonwealth v. Orellana , 86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation omitted). T he brief must be accompanied by a letter that advises the client of the option to “(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appell ant deems worthy of the court[’] s attention in addition to the points raised by counsel in the Anders brief.” Id.

### J - S01011 - 16

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advised Cameron of his right to retain new counsel or proceed pro se to raise any points he believes worthy of this Court’s attention. Accordingly, counsel has satisfied the procedural requirements of Anders . Having concluded that counsel has complied with the procedural mandates of Anders , we now determine whether counsel’s Anders brief meets the substantive dictates of Santiago . According to Santiago , in the Anders brief that accompanies counsel’s petition to withdraw, counsel must (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the releva nt facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Santiago , 978 A.2d at 361. Here, counsel provided the facts and procedural history of the case. See Anders Brief at 9 - 18. A dditionally, counsel addresses the claims raised by Cameron, and concludes that the claims are wholly frivolous. See id. at 18 - 38. Because counsel has complied with the minimum requirements of Anders / Santiago , we will address the merits of the claims rai sed in the Anders b rief. Cameron presents the following claims for our review: 1. Did the [trial c]ourt commit reversible error when it denied [Cameron’s] motions for a directed verdict and/or judgment of acquittal at the close of the Commonwealth’s case ?

### J - S01011 - 16

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2. Was the eviden c e insufficient to sustain [Cameron’s] convictions and therefore [, the] verdict [is] not supported by the evidence? 3. Was the verdict of guilty against the weight of the evidence? 4. Did the [trial c]ourt err when, at sentencing, it did not comply with the spirit of Alleyne v. United States [, 133 S. Ct. 2151 (2013)]? Anders Brief at 8. We will address Cameron’s first two claims together. Cameron first argues that the trial court improperly denied his m otions for a directed verdict and/or judgment of acquittal, at the close of the Commonwealth’s case - in - chief. Id. at 18. In support, Cameron contends that the Commonwealth failed to prove each and every element of the crimes charged. Id. Cameron disput es the tri al court’s determination that he failed to raise this issue before the trial court, during trial. Id. at 19 - 21. In his second claim, Cameron challenges the sufficiency of the evidence underlying his convictions. 3 

### Id. at 23. In reviewing a cha llenge to the sufficiency of the evidence, we evaluate the record “in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the

3 

### In the Anders brief, Cameron appears to conflate a challenge to the sufficiency of the evidence underlying the verdict with a challenge to the verdict as against the we ight of the evidence. See , e.g. , Anders Brief at 23 (stating that the verdict is so contrary to the evidence “that it shocks one’s sense of justice.”). Nevertheless, as we will discuss infra , Cameron’s challenges to the weight and sufficiency of the evid ence are without merit and wholly frivolous.

### J - S01011 - 16

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evidence.” Commonwealth v. Bibbs , 970 A.2d 440, 445 ( Pa. Super. 2009) (citation omitted).

Evidence will be deemed sufficient to support the verdict when it established each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty, and may sustain its burden by means of wholly circumstantial evidence. Significantly, [we] may not substitute [our] judgment for that of the factfinder; if the record c ontains support for the convictions they may not be disturbed. Id. (citation and quotation marks omitted). “Any doubt about the defendant’s guilt is to be resolved by the factfinder unless the evidence is so weak and inconclusive that, as a matter of law , no probability of fact can be drawn from the combined circumstances.” Commonwealth v. Scott , 967 A.2d 995, 998 (Pa. Super. 2009). In its Opinion, the trial court addressed Cameron’s first two claims and concluded that they lack merit. See Trial Court Opinion, 1/6/15, at 5 - 10 (unnumbered). We agree with the sound reasoning of the trial court, as set forth in its Opinion, and affirm on this basis with regard to Cameron’s first

### J - S01011 - 16

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two claims. 4 

### See id. In his third claim, Cameron asserts that the verdict is against the weight of the evidence. Anders Brief at 29. Cameron argues that “the guilty verdicts , especially the [aggravated assault] charge, were so contrary to the weight of the evidence that it s hocks one’s sense of justice.” Id. at 30. A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Cousar , 928 A.2d 1025, 1035 - 36 (Pa. 2007).

An appe llate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of
4 

### The record is not clear as to whether Cameron joined the motion for judgment of acquittal that was orally presented to the trial court. Our review discloses that co - defendant’s counsel presented a motion for judgment of acquittal as to the charge of possession of an instrument of crime. N.T., 3/5/15, at 134 - 35. At the conclusion the discussion between the trial court and co - defendant’s counsel , Cameron’s counsel stated, “I’m going to make a general motion.” N.T., 3/5/14, at 136. The trial court responded, “Denied.” Id. It is unclear from the record the basis for counsel’s m otion. Nevertheless, as the trial court stated in its Opinion, Cameron’s challenge to the sufficiency of the evidence is without merit. Trial Court Opinion, 1/6/15, at 10. Regardless of whether Cameron preserved this issue for review, the issue lacks me rit.

### J - S01011 - 16

- 7 - discretion. 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. Id. at 1036 (citation omitted). In its Opinion, the trial court addressed this claim and concluded that it lacks merit. See Trial Court Opinion, 1/6/15, at 9 - 11. We agree with and affirm on the basis of the trial cou rt’s Opinion with regard to Cameron’s challenge to the weight of the evidence. See id. In his fourth claim, Cameron challenges the sentence imposed for his conviction of possession of a firearm by a prohibited person. Anders Brief at 31. Cameron clai ms that the trial court violated the United States Supreme Court’s holding in Alleyne , when it imposed a mandatory sentence for the firearms violation. Id. In its Opinion, the trial court addressed this claim and concluded that it lacks merit. See Tria l Court Opinion, 1/6/15, at 11 - 13. Of particular note, the record confirms that the trial court did not apply a mandatory sentencing statute when it sentenced Cameron. See N.T., 6/4/14, at 10 - 12 (wherein the Commonwealth does not request application of a mandatory sentencing statute), 13 - 16 (wherein the trial court applies the sentencing guidelines in sentencing Cameron). We therefore affirm on the basis of the trial court’s Opinion with regard to this claim. See Trial Court Opinion, 1/6/15, at 11 - 13. Petition to withdraw granted; j udgment of s entence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 5/6/2016Firearm by a Prohibited Person , which the Court found Appellant guilty of on June 4 , 2 014. Th e

App e llant not guilty of Con s pirac y . A ppellant requested a bifurcat e d trial for the Possession o f a Assault, a felony of the first degree , and Poss e ssion of an Instrument of Crime
. The jury found crimes
. Th e jury , after hearing all evid e nce presented , found Appellant gu i lty of Aggra v ated 5 , 2013 , to M arch 6 , 2013 , to determin e whether the Appellant w as g uilty on the above charged a Fir e arm for an incident th at occurr e d on S e ptember 3, 2012. A jury trial was held from March with Aggravated Assault, Conspiracy , Possession of an Instrument of a Crime, and Possession of., On January 10, 2013, Appellant , Malik Cameron, was arrested and subsequently charged PROCEDURAL HISTORY judgm e nt s hould be affirmed. requirement s of Pa
. R.A.P. 1925(a)
. for the reason s set forth her e in, the Court hold s that the Fire arm by a Prohibited Person. The Court submi ts the following Opinion in accordance w ith th e c onviction for Aggravated Assault , Possession of an Instrument of a C rime, and Possession of a A ppellant in the above-captioned matter appeals this Court's judgment regardin g his ANHALT,J. 

## JAN O 

## 6 2015



## . Crimin?~ App.eals 

# UnJt F,rst Jud1c1al District



## of PA OPINION 

# EILED MALIK CAMERON Superior Court No.: 2010 EDA 2014 

### v. NO. : CP-51-CR-0002970-2013 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF PIIILADELPIIL 

# lllll 11111111111111111111 CRIMINAL DIVISION TRIAL 7241860101 CP - 51-CR-0002970-2013 C o mm . v . Cam e ron , M a lik Opi ni o n 

## sot 

# oll-1/oDuring Lawrence Cameron's second visit to the complainant's house, Crystal Brown was

present and Lawrence passed her their child (N.T., 3/5/14 , p. 34). Once Crystal left the front of the house , the Appellant flashed a black handgun towards the complainant and the complainant believed he saw the unidentified man carrying a firearm as well (N
. T., 3/5/14 , p. 35-37). The three men then left the complainant's residence and w a lked down the str e et (N.T., 3/5/14, p . 38)
. This case involved an incident that occurred in Philadelphia, PA on September 3, 2012
. The complainant, Timothy Clyburn, testified that at the time of the incident he was living at 4649 Marvin e Street with his fiancee, Crystal Brown (N.T., 3/5/14, p. 28). On the day of the incident , Lawrence Cameron arrived at the complainant ' s residence to drop off his daughter, whose mother is Crystal Brown (N.T
. , 3 / 5/14, p. 29)
. Because the mother was not present at the tim e , the complainant explained that he and Lawrence Cameron had a verbal argument (N
. T
. , 3 / 5/14, p . 31 ). Lawrence Cameron refused to leave the child without the mother present and ultimately left the complainant's residence (N.T., 3/5/14 , p. 31). Approximately fifteen minutes later, Lawrence Cameron returned to the complainant ' s residence with his daughter and two other men (N
. T
. , 3/5/14 , p . 32). Although one of the additional men could not be identified by the complainant, the complainant was able to identif y the other man as the Appellant, Malik Cameron (N.T., 3/5/14 , p. 32). Appellant was sentenced to si x to fifteen y ears incarceration on June 4, 2014. Appellant filed this timely appeal of the Court's decision on June 4, 2014
. On Jul y 2 , 2014 , this Court ordered Appellant pursuant to Pa
. R.A.P. 1925(b) to file with th e Court a Concise Statement of Matters Complained of on Appeal within 21 days. Appellant filed a Pa. R
. A.P. l 925(b) Statement with the Court on July 23, 2014
. FACTUAL HISTORY(N
. T., 3 / 5/14 , p . 38)
. The complainant, Mr. Clyburn , then testified that he left his residence in Crystal Brown's

car , s omewher e between 15 and 30 minutes after the second altercation, to get food for his pregnant fiancee (N.T., 3/5/14, p . 39 )
. The complainant reached an intersection a few blocks from his residence and saw the three men from earlier, including the Appellant, walking towards his car (N.T., 3 / 5/14, p. 40)
. Because the three men were five to ten feet from his car and w e aring the same clothing from earlier , the complainant was able to positively recognize them immediately (N.T., 3/5/14 , p. 41). The complainant saw the Appellant and the unidentified man raising their arms and then heard gun shots , one of which he believed hit the driver ' s sid e windo w and two which hit the driver's door (N.T., 3/5/14, p. 42). The complaintant st ated that he ducked and drove off to avoid being struck by a gunshot (N.T., 3/5/14 , p . 42). Once he was two blocks away, the complainant stopped to make sure he had not been shot and to check and see if the car had actually been hit (N.T., 3/5/14 , p. 43). Once the complainant felt he was safe , he called Crystal Brown and th e police to tell them that shots had been fired towards him and he then waited at the scene (N
. T. , 3 / 5/14, p . 44)
. The complainant was able to give a description of those who shot at him to the police, including Lawrence Cameron's name (N
. T., 3/5/14, p . 44)
. Crystal Brown was able to provide the Appell ant ' s name to police as someone matching the description the complainant had given them (N.T., 3/5 / 14, p. 45). The complainant was then directed by officers on scene to g o to the Northwest Detectives Unit with Crystal Brown to give a complete statement regarding the incident (N
. T. , 3/5/14 , p. 46)
. The complainant stated that he observed two bullet holes in the The compl ainant testified that he did not call the police at the time because he did not think the situation was very serious and he was confused as to why the Appellant had pulled the gun outdoor of the car before he left the scene (N .T. , 3/5/14 , p. 4 7). Crystal Brown testified that she was in the s hower the initial time Lawrence C ameron attempted to drop off their daughter (N.T. , 3/5/14 , p. 82)
. She testified that Lawrence C ameron later returned to drop off their daughter with his cousin , the Appell ant, and another unkno w n gentleman whom she had never met before (N.T. , 3/5/14, p. 83)
. Ms. Brown e x pl ained that approximately 15 minutes after the three men left her resid e nce, h e r fian c e , the complain ant , left in her car to get food ( N.T. , 3/5 / 14, p. 85). Sometime a fter he lef t , Cry stal Brown received a phon e c all from the complainant and w a s told that s omeon e had s hot at him and her car (N.T., 3 / 5/14 , p. 87). Alth o u g h sh e did not meet h e r fi ance at the crim e scene, s he sa w h e r v ehi cl e lat e r on and noticed at least one bullet hole on th e dri ve r's d o or ( N
. T ., 3/5/14 , p. 87 )
. Police Officer Rosenb aum, a Philadelphia police officer for e i g ht y e ar s , testifi e d that he

re c ei v ed a radio call on the day of the incident that there w a s a per s on w ith a g un (N.T., 3/5 /14, p. 92 ). A s he and his p artner r e ached the sc e ne of the alleg e d shootin g , the y were flagged down b y th e c ompl ain ant (N.T. , 3/5/14 , p . 92). As p er protocol, O f fic e r Rosenbaum immediately spo ke to the compl ainant about what had oc c urred (N.T
. , 3 / 5/14, p. 92). Officer Ros e nbaum explained th at the complainant identified the offend e rs as Lawrence Cameron and the App e llant , and that there wa s a third unknown male ( N
. T. , 3/5/14, p. 93 , 99). The officer also inspec t ed the c ar at the

s c en e and believed the c ar had been stuck twice b y gunfire (N.T., 3/5/14 , p . 95-96)
. D e tecti v e Druding, a Philad e lphia Detecti v e for about ei g ht years, was called o ut to th e
c rime sc ene to t ak e pictures of the v ehicle an d to lo o k for e vi denc e in the surrounding area ( N.T., 3 /5 /14, p . 103). A fter th e Detecti v e took photographs of the v ehicle, he searched mu lti ple blocks in an attemp t to find ph y sical e v idence o r additional witnesses (N
. T. , 3 / 5/14, p. 104 )
. De t ec tive Druding did not find an y ballistic evidence, which he attributed to the rainy weather washingm e ritle s s becau s e i t is being rai s ed fo r the fi rst time on appe al.

the Co mmonwealth had n o t proven each and e very e lement of the crimes charg e d
. This claim is dir e ct e d v erdict and/or a judgment of a cquittal at th e clos e of the Commonwealth's ca s e because App e llant claims that the Court erred when it denied the Appellant's motions for a 1. Appellant claims that the Court committed reversible error when it denied Appellant's motions for a directed verdict and/or judgment of acquittal at the close of the Commonwealth's case. 

### DISCUSSION authori z ed at the tim e o f th e incident t o carry a firearm in Philadelphia ( N.T., 3/ 5/ 14, p. 132 )
. the s e arch e s at either house (N.T., 3 / 5/14 , p . 130)
. It w a s stipul ated that th e App e llant was not c o nt ained th e actu al fire arms ( N
. T. , 3 / 5/1 4 , p. 12 4 ). No guns or bullets were discovered during ( N. T., 3 / 5/14 , p. 123)
. Both b ox e s had instructi ons and cl e aning supplies in them, but neither box p . 123). Officers reco v ered two "glock " manufactured gun cases i n th e Appell a nt's basemen t w e re is s ued and ex e cuted on both the A ppellant and Lawrence Cameron ' s homes (N.T., 3/ 5/1 4, w i thout he s it ati o n (N
. T. , 3 / 5/14 , p . 121-1 2 2 ). Detective Philippi t es tified that se arch warrants c o mplainant was able t o pos i ti v ely identif y the Appellant and hi s cousin, L a w r ence Cam e ron, 120). The Detective interv iew e d the complainant and showed him a photo array, where the was the a ssigned D e tecti v e to the incid e nt that occurred to the complainant ( N
. T. , 3/5/1 4 , p. Detective Philippi , w ho h a s worked as a Philadelphia police officer for o v er 14 y e ar s , unusual to find a lack of ballistic e vidence at a crime scene (N .T. , 3 / 5/14, p. 115)
. them had not begun to rust (N.T. , 3/5/14 , p. l 07). The Detecti v e also e x plained that it wa s not 115). H e testified that he belie v ed these m arks wer e rec e nt because the metal and paint around D e te c tive believ e d the m arks on the vehicle were consistent with bullet fire ( N
. T
. , 3 / 5/1 4, p . 10 8 , away, or any relevant wi tnesses (N.T. , 3/5/14 , p . 104)
. Up o n inspection of the v ehicle , theIn considering an issue on appeal, the issu e must have been initially raised in the lower

court ; otherwise it has been waived and cannot be introduced for the first time at the appellate level. P a .R.A.P. 302. This standard ensures that the lower court has the o pportunity to consider the i s sue , that the lower court has the opportunity to correct the is s ue , and that judicial re s ource s are used efficiently. 

### In re F.C. 

### III, 6 07 Pa
. 45 , 6 4 (2010); 

### Lincoln Philadelphia Realty Associates Iv
. Bd. o f Revision of Taxes of City & Cnty
. 

### of Philadelphia, 563 Pa. 189, 203 (2000) ; 

### Win g v . Com
. Unemployment Comp
. Bel. of 

### Review, 496 Pa. 113, 117 (198 l). Courts have determined that even constitutional issues cannot be raised for the first time on appeal. 

### Coulter v. Ramsden, 94 A
. 3d 1080 , 1089 (Pa
. Super. 2014); 

### E s tate of 

### Fridenberg , 982 A.2d 68, 76 (Pa. Super. 2009). H e re, the Appellant did not file a motion for a directed verdict or for a judgment of acquittal. During the trial, the co - defendant , Lawrence Cameron, requested a motion for acquittal

o n the a g g ra v ated assault and poss e ssion of an in s trument or cri me charges which was denied 

### by the Court. The Appellant never requested to b e includ e d in the co-defendant 's motion for direct e d v erdict or judgment of acquittal, nor did the Appell ant make his own motion for di r ected verdict or judgment of acquittal. Because the Appellant failed to raise the issue during the trial , the is s ue was waived and he is prohibited from ar guing it on appe al. Additionally, even if the Appellant had r equested a motion for directed verdict or a judgm e nt of acquittal , it would have been denied. In considering a motion for a directed verdict, the Court may grant the motion only where the facts are clear and there is no room for doubt. Fetherolfv. Torosian, 759 A
. 2d 391 , 393 (Pa. Super. 2000); 

### Lear, Inc. v . Eddy, 749 A
. 2d 971, 973 (Pa. Super. 2000). On a motion for a directed verdict, the trial court is required to consider the facts in the light most favorable to the nonmoving party and must accept as true evidence that supports the nonrnoving party'sAppellant argues that the evidence was insufficient as a matter of law and that the verdict 2. Appellant claims that the evidence was insufficient to sustain his convictions and that the verdict was against the weight of the evidence. acquittal would not have been granted. each and every element of the crimes charged. As a result, a directed verdict or judgment of evidence in the light most favorable to the nonmoving party, the evidence is sufficient to prove that the Appellant was prohibited from carrying a firearm at the time of the incident. Viewing the complainant had they hit him instead. Finally, the Appellant and the Commonwealth stipulated complainant's car, bullets which could have easily caused serious bodily injury to the earlier in the day. Evidence was presented by the Commonwealth that bullets struck the hands and fired a gun towards the complainant, wearing the same clothing from the argument morning of the incident. The Appellant was also identified as one of the men that raised their complainant testified that the Appellant was present during the argument at his home the it is clear that the Appellant was involved in the shooting on September 3, 2012. The Commonwealth, and accepting as true evidence that supports the Commonwealth's contentions, Considering the facts in the light most favorable to the nonmoving party, the Commonwealth. v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 200 l ). evidence to enable the fact-finder to find every clement beyond a reasonable doubt. evidence admitted in the light most favorable to the potential verdict winner, there is sufficient determine when evidence is sufficient, the Court must determine whether viewing all the particular charge. Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Supcr.2006). To Commonwealth is not sufficient to sustain a conviction beyond a reasonable doubt on the 1999). A Court may grant a motion for judgment of acquittal when the evidence presented by the contentions and reject all adverse testimony. Perkins v. Desipio ; 736 A.2d 608, 609 (Pa
. Super.40 A
. 3cl 1 2 39, 1242 (Pa. Sup e r. 2012); Common we alth v. M a rinelli, 690 A.2d 203, 210-11 (P a . 1 9 9 7) ; Common we alth v . Gaskins, 692 A. 2 d 224, 227 (Pa. Sup e r. 1997 )
. This standard is applicabl e wheth e r the evidence present e d i s circumstanti al or direct, provided the e videnc e links the accused to the crime be y ond a r e asonable d o ubt. Common we alth v. M or a l e s, 669 A.2d I 003 , l 005 ( P a . Sup e r. 1996 ). Qu e stions of w itn e ss credibility and the weight t o be a fforded the
ev idence arc w ithin th e so le province of the finder of fact , who is free to belie v e all , p art , or non e of the e videnc e . Commonw e alth v . Woods , 638 A
. 2d 1013 , 1015 (P a . Super. 1 9 94) ; Co mm o nwealth v . Ma

y fi e ld, 585 A
. 2d 1069 (Pa. Super. 1991 )
. Any doub t s regarding a defend a nt's guilt m ay be re so l ve d by the fact-finder, unless th e e v idence is so weak and incon c lu s i ve that a s a m att e r of law no probability of fact may be dra wn from the c o mbined circumst an c es . Comm o nwealth v. C hin e , 40 A.3d 12 3 9, 1 2 4 2 (Pa
. Sup e r. 201 2 )
. A pers o n is g u i lty of a ggravated as s ault as a felon y of the first d e gr e e if he attempts to
c au s e s erious bodily injury to another, or causes such injury intenti o n a lly , knowingly or recklessly under circumstanc e s manifesting e xtreme indifference to th e v alue of human li fe
. 

## .1Ji Pa. C .S.A
. 

### § 2702(a). Here , evid e nce th at the App e llant w as ob s erv e d raising a handgun and firin g to w ar ds th e complainant is sufficient t o pro v e the Appellant is g uilty of aggravat e d a ssault. was against the weight of evidence becaus e no reasonable fact-finder could find that the C o mmonwe a lth proved Appellant guilty. Appell ant further claims th at the a g gravated assault , 

## .lJi P a . C.S
. A § 2702( a )(l), verdict is so contrary to the e v idence th at it shock s o n e 's s en se o f justice. In c onsiderin g a ch a llenge to the s ufficienc y o f th e e v id e nce, th e r e v i ewing court must d e termin e w heth e r, vi e wing all the e v id e n c e at trial and the reasonable 

### i nfer e n c e s therefrom in th e light most favorable to the Comm o nwe a lth , the trier o f fact could hav e found that each element o f the offense charged was prov e n b ey ond a reasonable doubt. Co mm o nwe a lth v . C hin e ,Firing a handgun directly towards the complainant from a f e w fe e t aw ay could have caused serious bodily injury, if not de ath, had the bullets struck the complainant rather than the vehicle door. The Appell ant knew that s erious bodily injury could have occurred when he raised his firearm and shot towards the complainant, yet he decided to do it anyways . A person is guilty of possessing an in s trument of crime a s a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally
. 18 Pa
. C
. S
. A. § 907(a)
. An instrument of crime can be anything specially made or adapted for criminal use , or
an y thing used for criminal purposes and possessed by the actor under circumstances not manifestl y appropriate for lawful uses the instrument may have. 18 P a .C.S
. A. § 907(d). Herc , eviden c e that the Appellant possessed a firearm during the altercation and fired it towards the complainant is sufficient to prove the Appellant is guilty of poss e ssing an instrument of crime. The firearm was used for crimin al purposes , the aggravated a ssault, and shooting towards an innocent, unarmed bystander is never a la w ful use of a firearm. A person i s guilty of possession of a firearm by a prohibited person as a felony of the second degree i f h e is someone who has been convicted of an offense under The Controlled Sub s tance, Drug, Device and Cosmetic Act, and he is determined to have possessed , used , or controlled a firearm. 18 Pa.C
. S.A. § 6105. Herc, evidence wa s presented that the Appellant had at le a st one prior conviction for possession with intent to deliver , which is a violation of The Controlled Substance, Drug , Device and Cosmetic Act, and that he was in possession and used a firearm at the time of the incident. After being convicted of possession with intent to deliver , under The Controlled Substance , Drug, Device and Cosmetic Act, the Appellant was prohibited from possessing, using, controlling, transferring, or maintaining a firearm. Appellant used a fire arm to shoot towards the complainant and there was evidence that Appellant may be inpossession of additional firearms, as two firearm boxes were found at his residence. This

evidence is sufficient to prove the Appellant is guilty of felony possession of a firearm by a prohibited person. The Appellant claims that the Court erred by allowing the case to go to the jury because the Appellant believes that the Commonwealth failed to prove each and every element of the crimes charged. Evidence presented during the trial showed that the Appellant, who was with two other men at the intersection, raised a firearm and fired towards the complainant. Officers relayed to the jury that they believed the strike marks on the complainant's car were consistent with gun shots
. The complainant positively identified the Appellant as one of the men that fired a handgun towards him and his 

### fiancecs vehicle. Finally, evidence was submitted that the Appellant had previously been convicted of possession with the intent to deliver, making him ineligible to possess, use, or carry a firearm. This evidence , when taken as credible by the jury, proves each and every element of the crimes charge, therefore, the Appellant's claim of insufficient evidence is meritless. Appellant also contends that the verdict of guilty was against the weight of the evidence, specifically the aggravated assault, 18 Pa
. C
. S.A. Q 2702(a)(I ), verdict. The Appellant argues that the jury and Court erred in finding him guilty because the verdict was so contrary to the evidence presented that it shocks one's sense of justice. This challenge to the weight of the evidence, similar to the challenge of sufficiency of evidence , is mcritless. The decision whether to grant a new trial based on the grounds that the verdict was against the weight of the evidence rests solely within the discretion of the trial court. Commonwealth v. Pronkoskie, 498 Pa. 245, 251 ( 1982). "For a new trial to lie on a challenge that the verdict is against the weight of the evidence, the evidence must be so tenuous, vague andtrial or at sentencing. According to the Appellant, there is nothing on the r e cord which points to

person , 

### § 6105, making the sentence a mandatory sentence, were not enumerated on the record at Appellant argues that the aggravating factors of the possession of a firearm by a prohibited s entencing, when it did not comply with Alleyne v. United States. 133 U.S. 2151 (2013). The Appellant claims that the Court erred, while sitting as a jury al a bifurcated trial and at 3. Appellant claims that the Court erred when, sitting as a jury at the bifurcated trial and sentencing, it did not comply with the spirit of Alleyne v. United States, whereby the aggravating factors of 18 Pa.C.S.A. §6105, making the sentence a mandatory sentence, were not enumerated on the record at trial or sentencing. e v idence
. Court. As a result, the jury ' s v erdi c t and the Court's ve r dict arc not against the weight of the tenuous , vague, or uncertain that a v erdict of guilty shocks the conscience of the jury or the men that fired towards him on the day of the incident. The evidence presented was not so e arlier in the day . The complainant w a s able to positively identify the Appellant as one of the toward s the complainant, striking his vehicle multiple times, due to an altercation that occurred it shocks one ' s sense of justice. There was evidence at trial that the App e llant fired a handgun especially the 18 Pa.C.S.A. Q 2702(a)(l) charge , were so contrary to the weight of e vidence th at possession of a firearm by a prohibited person . The A ppellant claims that the guilty v erdict s , evidence to prove aggravated ass ault , pos s es s ion of an instrument of a crime, and felony As stated above, in regard to Appellant's sufficiency claim, there was sufficient credible cl aim challen g ing the sufficiency of the evidence. additional in support of his weight of the evidence cl aim that has not alread y been raised in his 1998) ; Commonwe a lth v
. Johnson, 910 A.2d 60 , 64 (Pa
. Super. 2006)
. Appellant offers nothing A.2d 1078, 1083 (Pa. Super. 1990); Commonwealth v . Sha/fer , 722 A.2d 195 , 2 00 (Pa. Sup e r. uncertain that th e verdict shocks the conscience of the court." Commonw e alth. v . Edwards , 5 8 2A.3d 108, 118 (Pa. Super. 2013). Although the§ 6105 charge docs not contain a mandatory minimum sentencing component, this Court, in deciding Appellant's post-conviction sentence, briefly mentioned a mandatory minimum sentence of five years under 42 Pa.C.S.A. §__2127
. If the Court had sentenced the Appellant to this mandatory minimum , the jury would have had to find every gives rise to illegal sentencing concerns; therefore, the legality of the sentence is not waivable, regardless of whether the sentence is within the statutory limits. Commonwealth v. Watley, 81 originall y did not raise this claim at the trial, the application of a mandatory minimum sentence Super. 2014); Commonwealth v . Valentine, 2014 PA Super 220 (2014). Although the Appellant Each and every fact or clement that increases the penalty for a crime must be submitted to the jury and must be found beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 , 483 (2000). Elements that increase the mandatory minimum sentence for a crime must also be submitted to the jury to be found beyond a reasonable doubt. Alleyne v. United States, 133 S
. Ct. 2151, 2155 (2013)
. Statutes allowing a court to determine whether elements for a mandatory minimum sentence were present in a crime, like 42 Pa.C.S.A. § 9127, have been ruled unconstitutional, as they do not allow the jury to determine beyond a reasonable doubt whether theses aggravating elements were present. Commonwealth v . Newman, 99 A.3d 86, 98 (Pa
. apply
. Id. the Court's awareness that this case, specifically the §6105 charge, was a mandatory minimum matter. As a result, Appellant believes the Court did not consider the factors and elements which made the case a mandatory matter and therefore Appellant argues that the sentence is incorrect. Appellant's claim is baseless, because the charge possession of a firearm by a prohibited person charge, 

### § 6105, does not carry a mandatory minimum sentence, which means Alleyne does not

### January 5 , 2015



# L
. 

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. , . .,, 

### DI A N A A NI-IAL T, J. B Y T H E 

### C O UR T : F o r the foregoin g reasons, the underlyin g jud g ment should be affirmed. CONCLUSION 

### c arry a m andat o ry minimum se ntence . minimum ap plied in the Appellant ' s sentence , esp e ci all y to the § 

### 6 105 ch ar g e , w hich does n o t st atu t ory mand atory minimum , the " spirit " o f Alley n e 

### does not apply as the r e was n o mand atory s entenc e r e quir e d b y 42 

### Pa.C
. S. A
. Q 9127
. 

### B ec aus e a guid e line range was applied r ath e r th an a y ear s, which w a s with i n the sent e n c in g guidelines , rath e r than applyin g the m and atory minimu m facto r s i n mind , the Court sentenced the Appellant to a t e rm o f imprisonment o f s i x to fifteen he had strong famil y support, wh i ch the Court consider e d to be miti g ati ng factors
. With the s e th e c o mpl ain ant durin g the sho o tin g, as a r es ult th e re w as no bodil y i njury, and h e showed that A gg rav ate d Assault. The Appellant w a s abl e t o ar g ue b e fo r e th e C o urt that th e bull e ts did n o t hit P o s s es sion With the Intent to Deliv e r, one conviction for Theft , and the jury 's convi c ti o n for Pa
. C
. S
. A. § 91 2 7. 

### A g gravating factor s a g ainst the Appellant included three convicti o ns for sentencin g guid e lines rather than ap pl y in g the m andatory minimum se ntence r e quir e d b y 42 

### a g g ravating cir c umstance s, to s entence the A ppellant to a term o f impri s onment wi thin the w ould h ave been contrary to Alleyn e . 

### H owever , the C o urt chose , after con s idering miti g atin g an d clement of the mandatory minimum sente n c e be y ond a reason able doubt at trial , or the sent e nce

### By:~ 

# r ianaAnhalt,Judgc

Date: 

# /-& ~ 

# /5 Hugh Burns, Esquire Philadelphia District Attorneys Office Three South Penn Square Philadelphia, PA 19107 Robert W. Muench, Esquire 912 Cargill Lane Philadelphia, PA 19115 I hereby certify that on the date set forth below, I caused an original copy of the Judicial Opinion to be served upon the persons at following locations , which service satisfies the requirements of Pa.R.A.P
. 122: PROOF OF SERVICE