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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

BENDERICK STERNS,

Appellant No. 1688 EDA 2013

Appeal from the Judgment of Sentence April 22

, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP

- 51

- CR -0006419-2012

BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 15, 2014

Benderick Sterns appeals from the judgment of sentence of life

imprisonment that the trial court imposed after he was convicted of firstdegree murder, conspiracy, possession of an unlicensed firea rm, possession

of a firearm on public property in Philadelphia, and possession of an

instrument of crime. We reject his position that the con victions were against

the weight of the evidence and affirm.

Appellant and his co-defendant, Kahhim Odom, were co nvicted based

upon the testimony of three eyewitnesses to the Novembe r 27, 2011

shooting death of Rymeek Horton. Additionally, Appe llant admitted to killing

the victim to another Commonwealth witness. The trial court aptly

delineated the evidence adduced at trial:

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- 2 - On November 27, 2011, the night Rymeek Horton (“the

decedent") was killed, he, Amir Jones ("Amir"), Amir's b rother

Omar Jones ("Omar"), and Ramil Andrews were hanging ou t,

smoking marijuana in front of Amir's and Omar's grandm other's

house on Malcom Street, a few houses down from Frazier Street

in Philadelphia. Amir testified that they shared one bag of

marijuana, and then Omar and the decedent decided to go down

Frazier Street, in the direction away from Whitby Av enue, to get

some more. The decedent turned back and began to wal k back

toward his aunt and uncle's house on Malcom Street to tell his

uncle to leave the door unlocked.

Two men then started running down Frazier Street, fr om

the direction of Whitby Avenue, firing guns at the de cedent. One

of them was wearing a gray hoodie, the other had on a dark

hoodie. Amir and Omar both identified the man in t he gray

hoodie as [Appellant] and the man in the dark hoodie as the

defendant's co- defendant, Kahhim “Killa” Odom (“Odom").

[Appellant’s] gun jammed , but he cleared the jam and continued

shooting. Omar ran, heard the decedent scream “Ouch,” tur ned

around, and saw the decedent lying on the ground.

When the first shots rang out, Vance Bradley ("Bradley")

was in his house at 5628 Malcom Street. Bradley heard four

shots and then a pause, and then he went to look out h is door.

The decedent was lying just in front of his house, abou t three

feet from the sidewalk, in the street. Bradley testif ied that he

saw [Appellant] and Odom walk toward the decedent

— [Appellant] was wearing a gray hoodie, and Odom was w earing a

dark-colored hoodie, but Bradley could see both their faces.

[Appellant] stood over the decedent, Odom just a few feet

behind him, and fired four more shots at the decedent 's head.

Bradley then saw both the defendant and Odom run back up

Frazier Street toward Whitby Avenue.

. . . .

Two days later, Stephon “Buddha” Brandon (“Brandon”)

was at Paula Sharp’s house with her and Odom. When Br andon

first arrived, Odom handed him a cell phone. [Appell ant] was on

the phone, and he asked Brandon what happened to the

decedent. Brandon told the defendant he did not kno w, and

[Appellant] responded by saying: “That’s my work.” N.T.

4/10/2013 at 153. Brandon said, “Dag, I liked Rymeek . He was

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a cool person. Why you do that? Now his family is gonn a think

that . . . I did it because we went through something in the

past.” [ Id .]. [Appellant] responded that “it was over some

money.” [ Id .] Brandon told [Appellant] that, “Everything is

gonna come to the l ight.” [ Id .] Odom then jumped up, grabbed

a pistol, called Brandon a [profane racial slur] and left the house.

Trial Court Opinion, 11/21/13, at 2-4 (footnotes and extraneous citations to

record omitted). The Commonwealth established that the victim died fro m

multiple gunshot wounds, including three to the head. Appellant countered

this proof by presenting two alibi witnesses with whom h e purportedly was

playing cards.

This appeal followed imposition of judgment of senten ce and denial of

Appellant’s post -sentence motion, which contained a claim that the verdi ct

was against the weight of the evidence. Appellant ra ises a single claim on

appeal: “Whether the Guilty Verdict Against The Appel lant Was Again st The

Weight Of The Evidence.” Appellant’s brief at 4. Our standard of review in

this context is extremely limited and well-ensconced:

A motion for a new trial based on a claim that the ve rdict

is against the weight of the evidence is addressed to th e

discretion of the trial court. [Commonwealth v.] Widmer

, 744 A.2d [745,] 751

– 52 [Pa. 2000]; Commonwealth v.

Brown

, 538 Pa. 410, 648 A.2d 1177, 1189 (1994). A new trial

should not be granted because of a mere conflict in the

testimony or because the judge on the same facts would ha ve

arrived at a different conclusion. Widmer

, 744 A.2d at 752.

Rather, “the role of the trial judge is to determine that

‘notwi thstanding all the facts, certain facts are so clearly o f

greater weight that to ignore them or to give them equal weight

with all the facts is to deny justice.’” Id

. at 320, 744 A.2d at

752. 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 tri al is

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imperative so that right may be given another opport unity 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

, 467 Pa. 50, 354

A.2d 545 (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.

Widmer

, 744 A.2d at 753.

Commonwealth v. Antidormi , 84 A.3d 736, 758 (Pa.Super. 2014)

(quoting Commonwealth v. Clay

, 64 A.3d 1049, 1054

– 55 (Pa. 2013)).

Herein, we ha ve reviewed Appellant’s allegations and conclude that t he

trial court did not abuse its discretion in denying Appe llant’s weight claim

and we affirm on the basis of its November 21, 2013 op inion. We also

observe that the jury was free to credit testimony link ing Appellant to the

crime and to reject his alibi witnesses’ testimony. Commonwealth v.

Page , 59 A.3d 1118, 1130 (Pa.Super. 2013) (“A determinat ion of credibility

lies solely within the province of the factfinder.”); Commonwealth v.

Blackham , 909 A.2 d 315, 320 (Pa.Super. 2006) (“The weight of the

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evidence is exclusively for the finder of fact, which is free to believe all, part,

or none of the evidence, and to assess the credibility o f the witnesses. . . .

It is not for this Court to overturn the credibility d eterminations of the factfinder.”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2014Circulated 08/28/2014 11:33 AMCirculated 08/28/2014 11:33 AMCirculated 08/28/2014 11:33 AMCirculated 08/28/2014 11:33 AMCirculated 08/28/2014 11:33 AMCirculated 08/28/2014 11:33 AMCirculated 08/28/2014 11:33 AMCirculated 08/28/2014 11:33 AM