J-S45026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUSTIN AHMAD CLARK

Appellant No. 2005 MDA 2014

Appeal from the Judgment of Sentence of June 23, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0002723-2013

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.: FILED JULY 21, 2015

Justin Ahmad Clark appeals from the judgment of sentence entered on 

June 23, 2014. We affirm.

In this case, Clark was charged with criminal homicide, 18 Pa.C.S.A. 

§ 2501; attempted criminal homicide, 18 Pa.C.S.A. § 901 (§ 2501); and 

carrying a firearm without a license, 18 Pa.C.S.A. § 6106. The trial court 

summarized the basic factual history of this case as follows:

[On March 9, 2013,] Rob Burris was walking near the 

intersection of Mayflower and 14th Street, in the Allison Hill 

section of the City of Harrisburg, when he was struck and killed 

by a bullet to his head. Jonathan Ramsey (“Ramsey”) testified 

that Clark asked him for a ride to Vernon Street in Harrisburg, 

Pennsylvania, because he wanted to confront an individual 

named Bennie Chisolm. Ramsey drove with Clark in the front 

passenger seat to 14th and Vernon, at which point Clark 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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indicated that he saw an individual known to associate with 

Chisolm, nicknamed “Mano.” Clark told Ramsey to “spin the 

block,” and Ramsey proceeded to drive down 14th Street, turn 

onto Market and then turn onto Mayflower. While Ramsey was 

driving around the block he saw Clark retrieve a gun from his 

clothing. Clark instructed Ramsey to pull up at 14th and 

Mayflower and to stop. Clark then rolled down the window and 

started shooting towards a group of people. Rob Burris suffered 

a gunshot wound to the back of his head. Based on the location 

of the wound and the bullet’s trajectory, Rob Burris, most likely, 

died instantaneously.

Trial Court Memorandum and Order (“T.C.M.”), 10/10/2014, at 1-2 (citations 

to record omitted).

Clark was two weeks shy of his eighteenth birthday at the time of the 

shooting. A jury trial commenced on April 22, 2014. 

At trial, Chisholm testified that he and Clark had gotten into a physical 

fight late in the summer of 2012. Notes of Testimony (“N.T.”), 4/21-

25/2014, at 53-55. Chisolm testified that he and Clark had a verbal run-in 

in February 2013 when “[n]o guns were drawn, they were just shown.” Id.

at 60-63. Later, Chisholm shot at Clark’s brother with a 20-gauge sawed-off 

shotgun after striking Clark in the head with the same gun. Id. at 64-72. 

On March 9, 2013, Chisholm was with Burris and others when the shots 

were fired from behind him. Id. at 80-82. 

Aja Lewis knew Chisholm, Clark, Burris, and Clark’s brother. Id. at 

98-102. Lewis testified that she saw Clark in the passenger seat of a car on 

the day Burris was killed. Id. at 103-04. Lewis called Chisholm because she 

knew he was in the area and she suspected that Clark was going after 
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Chisholm. Id. at 105-06. About twenty minutes later, Lewis learned that 

Burris had been killed. Id. at 107.

Ramsey testified that he knew both Chisholm and Clark and knew 

about the problems between them. Id. at 171-76. Ramsey testified that he 

was driving when Clark stopped him and asked for a ride to go fight 

Chisholm. Id. at 186-87. At that point, Ramsey did not know Clark had a 

gun. Id. at 194. Clark told Ramsey to pull the car over, and then Clark 

rolled down the window and started shooting into a group of people. Id. at 

195-96. Ramsey drove home with Clark and Clark decided that they should 

go to a basketball game to establish an alibi. Id. at 197-99. They saw 

Devacio McGowan, picked him up, and then switched to Clark’s car. Id. at 

101-02. McGowan told them that someone had been shot so they drove 

over to see what happened. Id. at 205. While they were watching the 

scene, Clark told McGowan that he was the shooter. Id. at 206-07.

The three men then went to the basketball game. Id. at 208. At the 

basketball game, they found out that Burris had been killed. Id. at 209. 

After the game, Clark dropped McGowan and Ramsey off, and told Ramsey 

that he was going to Lancaster. Id. at 211-12.

McGowan confirmed that he went to a basketball game with Ramsey 

and Clark. Id. at 286. Because McGowan’s testimony differed from his 

prior statement to police, McGowan read portions of that statement in which 

he told police that Clark admitted to the shooting to the jury. Id. at 303, 

305. However, McGowan stated that he was high when he gave the 
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statement and had no memory of it. Id. at 301-04. The Commonwealth 

then played McGowan’s recorded statement to the police for the jury. Id. at 

311.1

Clark testified in his defense that he did not shoot Burris, but admitted 

that he disposed of the gun that was used in the shooting. Id. at 473. 

Clark testified that he was at the basketball game when his brother 

approached him and asked Clark to dispose of a gun. Id. at 474-76. Clark 

also said that his brother was carrying Clark’s phone at the time of the 

shooting. Id. at 478. Clark testified that, after he received the gun from his 

brother, he drove into Harrisburg to sell drugs and get some money, and 

then he drove to Lancaster. Id. at 479-81. Clark claimed that he sold the 

gun to someone named Kurt in Lancaster. Id. at 483-84.

On April 25, 2014, the jury found Clark guilty of first degree murder, 

attempted murder, and carrying a firearm without a license. The trial court 

requested a pre-sentence investigation report (“PSI”) and a sentencing 

memorandum from Clark and the Commonwealth. On June 23, 2014, the 

trial court sentenced Clark to life without parole on the homicide conviction. 

____________________________________________

1

The Commonwealth also presented the testimony of various police 

officers who detailed the circumstances of the arrests of and statements 

from the various individuals involved, testimony regarding ballistics and the 

recovery of the gun used in the shooting, testimony regarding Clark’s 

cellphones and the discovery of information that showed the location of the 

phones, and medical testimony about the cause and manner of Burris’ 

death.
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Clark also was sentenced to twenty to forty years in prison for attempted 

homicide and three to six years’ incarceration for the carrying a firearm 

without a license conviction. All sentences were ordered to run concurrently.

On June 26, 2014, Clark timely filed a post-sentence motion in which 

he challenged the discretionary aspects of his sentence and the weight of the 

evidence. After briefing, on October 8, 2014, the trial court heard argument 

on the motion. On October 10, 2014, the trial court denied the motion. No 

direct appeal was filed.

On November 12, 2014, Clark filed a petition for relief pursuant to the 

Post Conviction Relief Action (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. In his 

petition, Clark sought reinstatement of his direct appeal rights, alleging that 

his counsel was per se ineffective for failing to file an appeal. The 

Commonwealth did not object to reinstatement of Clark’s appellate rights. 

On November 18, 2014, the PCRA court granted Clark’s PCRA petition.

On November 25, 2014, Clark timely filed a notice of appeal. On 

December 1, 2014, the trial court ordered Clark to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Clark 

timely complied. 

Clark raises three issues for our review:

I. Whether the trial court abused its discretion in refusing to 

allow Commonwealth’s Exhibit 47 – a prison note written 

by [Clark] – and Defense Exhibit 2 – a witness’ recantation 

letter – to go out with the jury during its deliberations?

II. Whether the trial court erred in denying [Clark’s] PostSentence Motion where [Clark’s] convictions were against 
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the weight of the evidence so as to shock one’s sense of 

justice as [Clark] was never shown to have committed the 

crimes alleged?

III. Whether the trial court erred in denying [Clark’s] PostSentence Motion where [Clark’s] sentence was excessive 

and unreasonable as the trial court failed to consider 

statutorily prescribed factors pursuant to 18 Pa.C.S.A. 

[§] 1102.1(d)?

Clark’s Brief at 6.

Clark first challenges the trial court’s decision not to allow certain 

exhibits to be viewed by the jury during its deliberations. Clark asserts that 

the trial court erred when it did not allow the jury to take with it during 

deliberations a note written by Clark to Ramsey and a letter purportedly 

written by Ramsey in which he recanted his statements about Clark’s 

involvement in the crime. Clark argues that both exhibits speak to Clark’s 

and Ramsey’s credibility, which were paramount in this case. Clark’s Brief at 

16-18.

We review a trial court’s decision regarding which exhibits go with a 

jury for an abuse of discretion. Commonwealth v. Bango, 685 A.2d 564, 

565 (Pa. Super. 1996). By rule, “the jury may take with it such exhibits as 

the trial judge deems proper.” Pa.R.Crim.P. 646(A). However, certain 

exhibits, such as transcripts of testimony, written confessions, and the 
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criminal information or indictment, are not permitted to go with the jury.2 

Pa.R.Crim.P. 646(C).

In a similar case, a defendant asked the trial court to provide the jury 

with a letter written by a Commonwealth witness that cast doubt on his 

credibility. Commonwealth v. Bridges, 757 A.2d 859, 877 (Pa. 2000), 

abrogated on other grounds by Commonwealth v. Freeman, 827 A.2d 

385, 412 (Pa. 2003). The trial judge refused to do so, holding that the letter 

would have unnecessarily highlighted that piece of evidence. Id. at 877-78. 

Our Supreme Court found no abuse of discretion based upon that reason and 

also because “the jury was well aware of the letter” as the witness had been 

cross-examined about the letter, the contents had been read into evidence, 

and it was part of closing arguments. Id. at 878.

Here, the jury asked to see three exhibits: the two at issue on appeal 

and the text messages from Clark’s phone, a defense exhibit. N.T., 4/21-

25/2014, at 624-25. The parties and the trial court agreed that the text 

messages could go out with the jury. Id. at 625. However, the trial court 

did not allow the other two exhibits because “[t]hey’re formal statements 

which the [trial court] typically does not send out to the jury. The parties 

both emphasized and displayed portions that they wanted the jury to 

consider.” Id.

____________________________________________

2 The jury charge also is not permitted to go with the jury, subject to 

certain exceptions. See Pa.R.Crim.P. 646(B), (C).
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The letter written by Clark was read to the jury by Ramsey and the 

Commonwealth published a copy to the jury. Id. at 219-21. The 

Commonwealth examined Ramsey about the letter. Id. at 221-24. Ramsey 

was cross-examined about the letter. Id. at 226-27. Clark also testified 

about the letter and what he meant in the letter. Id. at 469-73. Clark was 

also cross-examined about the letter. Id. at 502-05.

Ramsey also was questioned about the recantation letter which Clark 

introduced during Ramsey’s cross-examination. Ramsey denied writing or 

signing the letter. Id. at 252-53, 254-56. Clark later introduced the letter 

through Ramsey’s former cellmate, Raymond Jones, who testified that he 

witnessed Ramsey write the recantation letter and that he signed the letter 

as a witness. Id. at 425-26. Jones read the letter into evidence. Id. at 

426-27.

Clearly, both pieces of evidence were highlighted to the jury. As with 

Bridges, both letters were read into evidence. Both letters were covered in 

direct and cross-examination. Based upon Bridges, we find no abuse of 

discretion by the trial court in refusing to permit the letters to go out with 

the jury.

Clark next challenges the weight of the evidence supporting his 

conviction and the trial court’s denial of his post-sentence motion. Our 

standard of review on a challenge to the weight of the evidence is entwined 

with the trial court’s review of the same challenge:
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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, 744 A.2d 745, 

751–52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 

1189 (Pa. 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, 

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 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, 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 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, 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, 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:
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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, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger 

Co., 625 A.2d 1181, 1184–85 (Pa. 1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations 

modified).

Clark makes the same claims here as he did in his post-sentence 

motion, namely that Ramsey’s testimony and McGowan’s prior statement 

that Clark was the shooter were unreliable. In response, the trial court 

stated:

Here, in addition to the eye witness testimony of Jonathan 

Ramsey and the prior statement given by Devacio McGowan, the 

facts supporting Clark’s conviction were substantial. The 

Commonwealth presented testimony from Bennie Chisolm that 

Clark had a motive to kill Bennie, and that Rob was with Bennie 

when Rob was shot and killed. Aja Lewis testified for the 

Commonwealth that she saw Clark in a car in the vicinity of the 

shooting at the time of the shooting, that she warned Bennie 

that Clark was in the area, and that Bennie called her later to tell 

her that the people she warned him about killed Rob. The 

Commonwealth also presented evidence that a cellphone linked 

to Clark was in the vicinity of the shooting around the time the 

shooting happened, then was taken to Hershey, and finally taken 

to Lancaster. The location of the cell phone at the times 

specified correlated with Jonathan Ramsey’s account of where he 

went with Clark after the shooting, and where Clark said he was 

going to dispose of the gun.
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The only evidence presented that Clark was not the shooter was 

his own testimony. [The trial court found] that Clark’s testimony 

was not credible, and that it should certainly not be given 

greater weight than the overwhelming evidence the 

Commonwealth presented of Clark’s guilt.

T.C.M. at 3.

As the trial court noted, there was evidence that corroborated 

Ramsey’s testimony and that the testimony supported the verdict. The trial 

court found that the jury’s verdict did not shock its conscience. We must 

give the utmost deference to the trial court’s conclusions regarding the 

weight of the evidence. See Clay, supra. We find no reason in the record 

to determine that the trial court abused its discretion in reaching that 

conclusion.

Finally, Clark challenges the discretionary aspects of his sentence. 

“It is well-settled that, with regard to the discretionary aspects 

of sentencing, there is no automatic right to appeal.” 

Commonwealth v. Austin, 66 A.3d 798, 807–08 (Pa. Super. 

2013).

Before [this Court may] reach the merits of [a challenge to 

the discretionary aspects of a sentence], we must engage 

in a four part analysis to determine: (1) whether the 

appeal is timely; (2) whether Appellant preserved his 

issue; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of 

sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the 

concise statement raises a substantial question that the 

sentence is appropriate under the sentencing code. . . . 

[I]f the appeal satisfies each of these four requirements 

we will then proceed to decide the substantive merits of 

the case.

Id. (brackets in original).
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Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014).

Here, Clark has filed a timely notice of appeal and has preserved the 

issue in his written post-sentence motion. Clark also has included a Rule 

2119(f) statement in his brief. Clark’s Brief at 13-15. Our next step is to 

determine whether Clark has raised a substantial question.

In his Rule 2119(f) statement, Clark argues that his life sentence is 

excessive and asserts that there were factors that the court did not consider 

adequately. Clark’s Brief at 13-15. We have held previously that a similar 

claim of failure to consider sentencing factors in a challenge to a life 

sentence for a juvenile raised a substantial question. Commonwealth v. 

Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014). Likewise, we find that 

Clark has raised a substantial question.

Clark argues that the court did not consider the statutory factors in 

sentencing him to life in prison. Clark also suggests that certain mitigating 

factors, such as his lack of familial support, his upbringing in a rough 

neighborhood, his lack of criminal sophistication, his lack of a history of 

violence, and his amenability to rehabilitation, should have been given more 

weight. Clark’s Brief at 22-24.

We review a challenge to the discretionary aspects of sentence for an 

abuse of discretion. Seagraves, 103 A.2d at 842. Further, when a PSI is 

available to the trial court, we presume that the trial court “was aware of 

relevant information regarding the defendant’s character and weighed those 

considerations along with any mitigating factors.” Id.
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The General Assembly set forth the following factors to be considered 

when a trial court must sentence a defendant convicted of homicide who was 

a juvenile at the time the crime:

(1) The impact of the offense on each victim, including oral and 

written victim impact statements made or submitted by family 

members of the victim detailing the physical, psychological and 

economic effects of the crime on the victim and the victim’s 

family. A victim impact statement may include comment on the 

sentence of the defendant.

(2) The impact of the offense on the community.

(3) The threat to the safety of the public or any individual posed 

by the defendant.

(4) The nature and circumstances of the offense committed by 

the defendant.

(5) The degree of the defendant’s culpability.

(6) Guidelines for sentencing and resentencing adopted by the 

Pennsylvania Commission on Sentencing.

(7) Age-related characteristics of the defendant, including:

(i) Age.

(ii) Mental capacity.

(iii) Maturity.

(iv) The degree of criminal sophistication exhibited by the 

defendant.

(v) The nature and extent of any prior delinquent or 

criminal history, including the success or failure of any 

previous attempts by the court to rehabilitate the 

defendant.

(vi) Probation or institutional reports.

(vii) Other relevant factors.

18 Pa.C.S.A. § 1102.1.
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The trial court stated that it considered the PSI, testimony, and the 

pre-sentence memoranda submitted by the parties, along with all the 

statutory factors. T.C.M. at 4; N.T., 6/23/2014, at 55-56. The court also 

reviewed each of the section 1102.1 factors. N.T., 6/23/2014, at 56-59. 

The trial court particularly noted the impact on the victim’s family, several of 

whom provided victim impact statements at sentencing, the fact that Clark 

fired up to eleven shots into a group of people, that Clark intended to kill 

Chisholm and was not acting impulsively or recklessly, that Clark was almost 

eighteen at the time of the shooting, that Clark had a prior record related to 

drugs, and that rehabilitation thus far had been unsuccessful. Based upon 

these factors and the other considerations, the trial court sentenced Clark to 

life in prison. The trial court considered all the factors that were required 

and did not abuse its discretion in concluding that a life sentence was 

appropriate. Therefore, this issue does not merit relief.

Judgment of sentence affirmed.

Judge Bowes joins the memorandum.

Justice Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2015