Com. v. Davis, J. (memorandum)

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J-S10026-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. JESSIE DAVIS Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3387 EDA 2016 Appeal from the Judgment of Sentence September 19, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003341-2014 BEFORE: BOWES, J., OLSON, J., and NICHOLS, J. MEMORANDUM BY OLSON, J.: FILED MAY 14, 2018 Appellant, Jessie Davis, appeals from the judgment of sentence entered on September 19, 2016 in the Criminal Division of the Court of Common Pleas of Philadelphia County. We affirm. Briefly stated, the relevant facts and procedural history of this case are as follows. During the early morning hours of February 16, 2014, Appellant shot two men in the head during gunpoint robberies that took place shortly after the men exited a Chinese restaurant. Thereafter, on December 22, 2015, Appellant waived his right to a jury and proceeded to a bench trial. After receiving the evidence, the court, on December 23, 2015, found Appellant guilty of two counts each of attempted murder, 1 aggravated ____________________________________________ 1 18 Pa.C.S.A.§§ 901(a) and 2502. J-S10026-18 assault,2 and robbery.3 The trial court also found Appellant guilty of one count each of conspiracy to commit murder,4 possession of a firearm not to be carried without a license,5 and carrying a firearm on the public streets of Philadelphia.6 On July 14, 2016, the court sentenced Appellant to an aggregate term of 25 to 50 years’ incarceration. Appellant subsequently moved for reconsideration of his sentence.7 After vacating Appellant’s original sentence, the trial court, on September 19, 2016, ordered Appellant to serve 20 to 60 years in prison. This appeal followed.8 ____________________________________________ 2 18 Pa.C.S.A.§ 2702(a). 3 18 Pa.C.S.A.§ 3701(a)(i). 4 18 Pa.C.S.A.§§ 903(a) and 2502. 5 18 Pa.C.S.A.§ 6106(a). 6 18 Pa.C.S.A.§ 6108. Appellant’s post-sentence motion did not challenge the weight of the evidence. 7 We shall treat the instant appeal as timely filed pursuant to the prisoner mailbox rule, which holds that an appeal is deemed filed by an incarcerated individual acting pro se when it is placed into the hands of prison officials, even if it is actually received by the court after the deadline for filing appeal. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). Here, the record reveals that the trial court imposed Appellant’s judgment of sentence on September 19, 2016. Thus, Appellant had until October 19, 2016 to file his notice of appeal. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is taken). Appellant’s pro se notice of appeal bears a date stamp indicating that the 8 (Footnote Continued Next Page) -2- J-S10026-18 In his brief, Appellant challenges the sufficiency of the evidence underlying his convictions, arguing that his identity as the perpetrator of the instant crimes was not proven beyond a reasonable doubt. In the alternative, Appellant claims that the evidence of his identification was so unreliable that the trial court abused its discretion in concluding that the guilty verdicts were not contrary to the weight of the evidence. We carefully reviewed the certified record, the pertinent case law, the submissions of the parties, and the opinion of the trial court. Based upon our review, we agree with the court that the evidence was sufficient to demonstrate Appellant’s guilt beyond a reasonable doubt. See Trial Court Opinion, 4/26/17, at 5-11 (examining Appellant’s challenge to the sufficiency of the evidence). Because the court adequately and accurately addressed Appellant’s sufficiency challenge, we adopt this aspect of the trial court’s opinion as our own. Accordingly, the parties are instructed to attach a copy of the trial court’s opinion to all future filings pertaining to our disposition in this appeal. (Footnote Continued) _______________________ clerk’s office received it on October 20, 2016. Because the date of receipt is one day after the 30-day appeal deadline, we infer that Appellant placed the notice into the hands of prison authorities no later than October 19, 2016. See Jones, 700 A.2d at 426 (Supreme Court “inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities”). We further note that, on April 10, 2017, Appellant, through counsel and with leave of this Court, filed an amended notice of appeal to clarify that he sought to challenge the September 19, 2016 judgment of sentence and not the December 23, 2015 guilty verdict. -3- J-S10026-18 We also find that Appellant is not entitled to relief based upon his challenge to the weight of the evidence. As a preliminary matter, Appellant waived appellate review of his weight claim because he failed to challenge the weight of the evidence before sentencing or by way of a post-sentence motion. See Pa.R.Crim.P. 607(A) (“A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or, (3) in a post-sentence motion.”); Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (failure to properly preserve weight claim in post-sentence motion, by written motion before sentencing, or orally on the record prior to sentencing results in waiver, even if trial court addresses the issue in its opinion), appeal denied, 159 A.3d 941 (Pa. 2016); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Even if we were to reach the merits of Appellant’s weight claim, we would not find that the trial court abused its discretion in rejecting his contentions. See Trial Court Opinion, 4/26/17, at 11-13 (evaluating weight claim and crediting complainants’ consistent and confident testimony that Appellant perpetrated the offenses in this case). For each of the foregoing reasons, we conclude that Appellant is not entitled to relief based on the claims raised in this appeal. Judgment of sentence affirmed. -4- J-S10026-18 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/14/18 -5- Circulated 04/23/2018 11:35 AM IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION FILED - CRIMINAL SECTION APR 2 6 2017 Office of Judicial Recorc Commonwealth of Pennsylvania CP-51-CR-0003341-2014 Appeals/Post Trial Nr. SUPERIOR COURT NO. 3387 EDA 2016 Jessie. Davis CP-51-C13-00033412D14 Comm v. Davis,. Jessie Opinion OPINION 11111,191161111,1111111 Ehrlich, J. Jessie Davis, hereinafter Appellant, was found guilty of attempted murder, robbery, aggravated assault, conspiracy, and possession of an instrument of crime following a waiver trial on December 23, 2015.1 The charges stem from a robbery and shooting that occurred in North Philadelphia on February 16, 2014. Appellant was sentenced on September 19, 2016, to an aggregate term of twenty to sixty years of incarceration. A timely appeal followed, On appeal, Appellant avers two points of error: 1. 2, 18 Was the evidence in this matter insufficient to sustain a verdict of guilt on all charges (Attempted Murder, Aggravated Assault, Robbery, Criminal Conspiracy, Violation of the Uniform Firearm Act §6106, Violation of the Uniform Firearm Act §6108, and Possession of an Instrument of Crime) where the sole eyewitness's identification testimony was contradictory and unreliable (based on the location, design, and placement of the shooter's face tattoos), and where otherwise the only identification of the defendant as shooter was made based on the color and style of the jacket the defendant was wearing? Where the judgment of guilt and judgment of sentence on all offenses (Attempted Murder, Aggravated Assault, Robbery, Criminal Conspiracy, Pa,C.S.A. §§ 6106(a)(1), and 6108, respectively. Violation. of the Uniform Firearm. Act 0106, Violation of the Uniform Firearm Act and Possession of an Instrument of Crime) against the weight of the evidence, where the sole eyewitness's identification testimony was contradictory and unreliable (based on the location,. design, and placement of the. shooter's face tattoos), and where otherwise the only identification was made due to the shooter's clothing? .Appellants Pa.R.A.P. 1925(b) Statement. As will be. discussed below, these claims are without Tnerit Accordingly, no relief is due. The Evidence On February 16, 2014 at approximately 1 :00 a.m., Tornas Albaladejo and Jose Reyes, herein after the complainants, entered a Chinese food takeout restaurant at 3670 Franktord Avenue. .Notes of Testimony ("N.T..") 12/22/2015, at 13. Mr. Albaladejo and Mr. Reyes are. brothers-in-law. Id. While walking into the store, Mr; Albaladejo looked up. and saw Appellant. Id. at 16. The Chinese store was well lit. Id. Mr. Albaladejo stated Appellant had on a green jacket with a. hoodie pulled over his head. Id: Appellant's face was visible. Id. Mr. Albaladejo stated he noticed Appellant because of his unique facial tattoos. Id. Appellant has a tattoo depicting a bag of money and:a lightning bolt on his forehead. Id. at 85. Mr. Albaladejo stated he. has never seen anyone with those particular type of tattoos before. Id.. The Appellant then exited the store. Id. .Mr. 'Reyes cannot read, write.or.understand the Englishlariguage,.sa.Mi...Albaladefo helped him order from the menu.. Id. After about five to ten minutes, Mr. Reyes received his food and the men exited the store. Id. at 17. The pair proceeded down Frankford Avenue. Id,. Mr.: ReyeS. was walking a foot or two ahead when Mr. Albaladejo heard footStepS running behind them. Id: at 23. He turned around and..sawtWo.individualS running toward them. Id. All of .a.sudrien; Mr. ..Albaladejo heard a pop.and.felt a ringing sound in his ear. Id. He.had.been shot in the back of his head behind his ear. Id. at 25. His nose. and mouth started to bleed. Id. at 2 37. He turned and saw Appellant, the same individual he saw in the Chinese restaurant minutes earlier, Id. at 26. Appellant had :a gun in his hand and was wearing the same green coat he had on in the Chinese restaurant. Id. at 27. Appellant walked over to Mr. Reyes, who was about five feet away from Mr. Albaladejo. Id. Appellant told Mr. Reyes, "Give me your wallet." Id. at 28.. Since Mr. Reyes does not understand English, Mr. Albaladejo translated Appellant's instructions into Spanish. Id. Appellant pointed the gun at Mr. Reyes' forehead and said "You think I'm playing?" Id. at 29. Mr. Albaladejo told Mr. Reyes to give Appellant his wallet and, "whatever [else] he wanted." Id. Mr. Reyes handed Appellant $40 in cash. Id. Appellant then shot Mr. Reyes in the back of the head. Id. at 31. Appellant then walked back to Mr. Albaladejo who was bent down on one knee. Appellant held the gun two inches from Mr. Albaladejo's forehead and said, "Give me your wallet." Id. at 34. Mr. Albaladejo then handed his wallet to the Appellant Id. A second unidentified man was standing one or two feet away during the incident. Id: at 38.. During the robbery, the man seemed to be acting as a look -out. Id. After Mr. Albaladejo handed over his wallet, the man said "Let's go" and the pair walked in the direction of the Chinese restaurant. Id. at 35. After the assailants fled, Mr. Reyes pulled Mr. Albaladejo to his feet. Id. at 36. Mr. Albaladejo held onto Mr. Reyes as the two stumbled.to. Mr. Albaladejo's mother-in-law's house on Pickwick Street. Id. When they arrived, Mr. Reyes called 9-1-1 and police arrived shortly thereafter. /d. At 1:20 a.rn. on. February 16, 2014, Philadelphia Police Officer Creely, and his partner Officer Mendez, were on routine patrol when they received a report of a shooting that occurred on the 3.600 block of Frankford Avenue. N.T. 12/23/15 at 35. As Officer Creely reached 3 Frankford and Castor Avenues, he: received a.nother.report this one for .tWo males Shotit 21:70 Officer .Creely traveled approxiinately half a city block to ire.ach PickWick Street. Id: at 36. Pickwick Street. Id. He observed blood On the front door of the residence. Id. The . complainants met him at the door' and explained how they had just been shot. Id. Mr. Albaladejo told Officer..Creely their.asSailant was a black Male, with tattoos, on his face, wearing a green. coat with a hoodie. Id. at 3$. They also...stated A. second male:wasPresent.but no' provided 'further information. Id. The complainants were transported by rescue to Temple University Hospital. ../d. Detective Dennis Dusak was assigned' to the' case .on.February 16,, 2014. to. recover the Chinese restaurant's surveillance video. Id. at 42. Detectice.D.usak interviewed Mr. :Albaladejo. on February 19; 201.4. arid:shOwed him still.Photosi from the February 16,.2014 surveillance video. He asked Mr. Albaladejo if he recognized the man in the. still photos as the individual who shot him.thatnight. JcL at 40. mr: Albaladejo *said; "Yes...that:is the person [described." Id, at 47. Based on this. information, DetectiveDusak developed aphoto of the, suspect 'and researched his name, address and other identifying information., Id.. The male was identified as Appellant,. Jesse Davis, from 3710 Frankford4v.enue This address is five.houses away from the. Chinese...restaurant. Id. Detective Dusak then compiled a.photo. array of seven similar looking males to pent-to each. complainant. Id. at 5.1. Detective Dusak stated hedid.notrelay to:the complainants any information regarding.theindividnals inthe photo array. Id: Once presented theatray, Mr.. Albaladejo picked oitt.the Appellant. Id.. "one, hundred percent 'sure thisisliepetson." Id.. at 51 4 In fatt, Mr. Albaladejo *stated he was Detective. Daniel Murawski also presided:over the. shooting investigation. Id. at 71. At 36:381 Castor Avenue, he recovered one live round: with blood' on it, orie fired cartridge easing,. and 'another fired cartridge casing next:to:a brick wall. Id. at 76. 'The..CaSings and live round WerefOundin the saniegeneralarea; about three feetapart. id. Castor Avenue is"two blocks away.from where the Shooting.ocCurred. Ballistic results were stipulated, to between counsel. Iq, Testing established four items were recovered: one: live round arid.three fire *cartridge casings. Id. at.80. Microscopic .examinatiOns..deternrined..fired cartridge, casing oneand.fired cartridge casing two Came from the. same gun. Id. No microscopic markings would permit firearm identification for the live round. 'However, Detective Daniel Murawski stated'"therels evidence all rounds, originated from :a 25 caliber fired/M." Id.. In addition, it was stipulated between connSeilliat Appellant did not have a proper license and was ineligible to e airy a weapon on the datein question. ../d Discussion, Sufficiency of the.vidcnce. Appellant conten4m..appeal that theevidenc.e was insufficient to sustain his convictions* for attempted murder, robbery, aggravated .assault; conspiracy., and possession Of an instrument of crime, T.he standard of review by which' a:reviewing coUrt must as8ess.th0 sufficiency of the evidence:1s well -settled. "When reviewing a challenge the.$1gfeiency.bf.the 'evidence, we must regard :all the.eViderice in the light most favorable: to theVerdia 'winner,., giving 014 party 'the* benefit of all teasbnal*.infetpncs." Cfpnynonwealth.y.:13edford, 50 A.3d 707, 711 (Pa. Super. 2012) (internal citations omitted).. In addition: "[T]he facts and circumstances .established. by the Commonwealth need 'not preclude every possibility of intooetice.: Any doubts :regarding a clefendarit's..guilt. 5 May be resolved by.tht.factJfiridetleSS the evidence so weak and inconclusive that .as a matter of law no probability of fact may be drawn -fiorn the combined eirciutstances. The .Commonwealth may sustain its burden of proving every. element of the crime :beyond *a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test.the..entire recordmustbe.evaluated. and all evidence actually received must be considered. Finally, the finder of fact while passing. upon the credibility Yof witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence." :Commonwolth v. Nypaver, 69 A.2d 7.08; 714 (Pa. Super. 2013) (citations omitted). A.person.may be convicted of attempted murder "if he takes.a.substantia1steptoward the. commission of a killing, with the. specific intent in mind to commit such an act." Commonwealth v. Hobson, 604 A.2d 717, 719 (Pa. Super. 1992). "The intent which is a prerequisite to a finding. of murder is . aforethought' or simply, malice." Id. at 719-720. Malice is synonymous with either *a wickedness of disposition, crucity, recklessness of consequences, indicating unjustified disregard for the probability of death or great bodily harm. Id. at 720. Alapt-.finder can properly infer malice from the use of a deadly *weapon on a Vital Part of the complainant's body. Commonwealth v. Siebert, 622.A,2d.361:364 (Pa. Super. 1993). Viewing the eyicknoe in a light most favorable to the Commonwealth as verdict 'winner; Mr. Reyes testified to watching the Appellant point a small automatic handgun, at close range, at Mr. Albaladejo's head and pull the trigger. The bullet hit Mr. Albaladejo in the neek.and exited through the nose breaking his nasal bone. So011, after, Appellant fired a shot in the back of Mr. Reyes' head. These actions qualify as substantial .steps in the commission of a killing. The intent requirement for attempted murder is also. sat tied because the Appellant used A *deadly i weapon (a firearm) on perhaps the most vital part of hc complainants' body (the head). Seibert, supra. .6 In the instant case; Mr. Albaladejo testified to the f011OWirig.on directeXamination by the district attorney: ..EDGAR JARAMILLO: What was Mr. Davis doing? What 'was he doing with the gun with your brother-in-law? What was he, :saying' to. your brother-in-law?. T.OMAS..ALBALADEJO: He said, "Give, me. your wallet," He...Witched *the gun back and said "You think Pm playing?" EDGAR JARAMILLO:.What did you say to help yourbrother-in-law? *TOMAS ALBALADEJO: I told him to do what [the .defendant] says, to come 'down. And sole.hentdov.vnto.his.knees. And whenhe gave hitn.his wallet; he shot him. EDGAR JARAMILLO: When you were .talking to :your brother-in-law .and you were' telling, your brother-in4aw to kneel...to give his wallet did. the. 'defendant look at you? TOMAS ALBALADEJO.: Yeah...after he, shot hirn,.hecartietbward me and he was like, "Give. me your wallet" and put the.guritO EDGAR JARAMILLO: Was he in front of you When he'put the:.gun up to your head? TOMAS AL:13ALADE40.: Yes. N.T., .12/22/2015 at 29-33.. The' above testimony more than. adequately demonstrates Appellant's intent to murder the: cOnipfainaritg and the substantiEd :steps -he took toward the accomplishment ofthat objective,, 'The phySical demeanor of the Appellant, threatening language and use of a deadly weaponion 'a, vital part of the body all exhibit an intent to inflict deadly harm on the cOmplainantS.: In addition, 7 Detective Daniel Murawski recoyered.one liVe round.Withbloodionit.and two fired: cartridge casings .at 3638 Castor Avenue: There was also no testimony presented that, cOnflicted.with the eyewitnesses' above testimony. Therelbre, the evidence presented by the Commonwealth was.stifficierit for the jury to convict Appellant of attempted murder. The relevant portions' of.the robbery statute are as, follows: §.3 701 . Robbery Offense defined.(1) A person guilty ofrobbery if; in the *course of committing:a theft, he*:." * (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;. C.S.A.:§. 3.701. Similarly, Appellant, argues that the evidence was insufficient to eonviethitn of robbery.. in the instant case, Mr. Albaladejo and Mr. Reyes 'were approached by Appellant, forced to their knees; and -held at gunpoint until their belongings were taken. Appellant:told each complainant, "Give me. your wallet:, .totichedthe gun back" and said "You think Pirt playing?" This is sufficient to find the complainants' belongings Were taken by force. The eVidenCe.shOws Albaladejo and Mr. Reyes. These. faelsestablish all the elements Appellant threatened of rObbery. Therefore, the: evidence. presented by the CornmonWealth.was.sufficient fOrthe.jury to 'convict Appellant of rcibbery.. Likewise, the Commonwealth's evidence establishing aggravated assault was equally adequate, Under Permsylvanialaw, a. pers9n..is, guilty of aggravated assault if he. "attempts to -cause serious bodilyinjury to another, or causes such injury intentionally, knowingly or 8 recklessly under circtunstances manifesting extreme indifference to the value of human life." 18 Pa. C.S. § 2702 (a)(1). Where the victim suffers serious bodily injury, the Commonwealth is not required to prove specific intent. Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) The Commonwealth need only prove [the defendant] acted recIdessly under the circumstances manifesting an extreme indifference to the value of human life. For the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be, performed under circumstances which almost assure that injury or death will ensue. Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super, 2007) (quoting Commonwealth Nichols; 692 A.2d 181; 185 (Pa. Super. 1997) (internal citations omitted)). The elements of aggravated assault are necessarily inehidedinthe offense Of attempted murder and merge with it for sentencing purposes. Indeed, every element of aggravated assault is subsumed in the elements of attempted:murder, .Commonwealth v. Anderson,..650 (Pa. 1994).decisiOri modified on denial Ofreargunient, 653 A.2d 6.15 (Pa,. 1994) (amending the court' S. previous order to includevaotingthe.judgment of sentence for attempted murder and possession.of aninstrument.of crime in addition to, aggravated assault, andremandingfor res.eritencing);. See, 1.8..Pa.C.S, §2301 arid 2702(a)(1), Because the fact -finder determined that there was Sufficient:evidence to:conclUdethateach element of the.offensepf attempted murder was satisfied beyond a reasonable doubt, it.f011ows, that each: element of the Offenstiof aggravated assault is also -satisfied.. Thns,.the Appellant's claim regarding theinSufficiency.Of evidence for aggravated assault must fail. FarthermOre, the Conitrionwealth's.evidence establishing criminal conspiracy was. equally. adequate. The relevant portions § 903... oldie criminal conspiracy statute are as follows: Criminal conspiracy 9 v, of conspiracy. -A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its (a) Definition commission he: (1) Agrees with such other person or persons that they or one of more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2).. 18: Pa. C.S. Agrees to aid such other person or persons in the planning or commission of such crime or of an anempt or solicitation to commit such crime. 903. [T10 sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant: (1) entered into an agreement to commit or aid in the unlawful act with another person or persons, (2) with a shared criminal intent, and (3.) an overt act was done in furtherance of the conspiracy. Commonwealth v. Murphy, 795 A.3d 1025, 1037 (Pa. Super, 2002):. Furthermore, "[w]bile the Commonwealth is not required to prove a written or express agreement, a tactic agreement must be established by reasonable inferences arising from the facts and circumstances." Commonwealth v. Savage, 566 A.2d 272, 276 (Pa, Super. 1989). Therefore, an agreement may be inferred between co-conspirators from the facts of the' case. The Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that an overt agreement to rob the two victims was formed between the Appellant and the unidentified accomplice. In the, instant case, Appellant, and the second male approached the complainants on Castor Avenue. As Mr. Albaladejo testified, this man appeared to be acting as a look-out. While the Appellant held a gun to each complainant's head and demanded their belongings, the individual stood close by. After the Appellant confiscated Mr. Albaladejo's wallet, the second male said "Let's go" and the pair walked away together. The facts and circumstances and specifically, the ongoing conduct of the' assailants, clearly established a conspiratorial agreement between Appellant and the other individual on scene. Therefore, the evidence was sufficient to convict Appellant of criminal conspiracy. 10 The relevant portion of the possessing an instrument of crime statute is as follows: § 907, Possessing an instrument of crime (a) Criminal instruments. generally -A person commits &misdemeanor of the first degree if he possesses .any instrumentof.crime with intent to employ it criminally.. 18 Pa:C.S.A. § 907: Under this prOVision, the Commonwealth Must prove two elements: (1) possession Of an object that iS. a Weapon;. and (2) intent to use thatweapon fora criminal ptirpose. Jn re4C, 763 A.2d 889,.890-91 .(Pa; Super. 2000) (citing Commonwealth 1977). v. Hardick, 380.A.2d 12354.1:236 (Pa. Itis well established that& loaded firearm is a weapon, so only the question of criminal intent is :at.iSsue. and easily resolvecl...$ee:CpnimPovecilth v. Harley, 41:8 A.2d 1354, 1357 (Pa. Super, 1980).. Appellant's criminal intent was made when he beld.a.gun two inches away from Mr. Albaladejo's head and Mr. Reyes' head and demanded their. property. As such, the evidence is sufficient to eonyict.Appellant ofpossessing an instrument of crime. Weight of the Evidence Appellant next contends that theNerdictwas against the weight of the evidence: This claim should fail because the standard of review for evaluating a Weight -Of-the -evidence. claim is well established and very narrow: CoMinoimea/thy. Chamfinqyi 832 A2d..403, 407 (Pa. 2003). Determining the weight of the evidence is reserVediexchisivelyfor the finder of fact, Id..gt Again, the. finder of fact is free to. helieve.all, part, or none of the.. e.videnCe and to.determinethe credibility of.the.witnesses. Id. Thus,.an appellate...court can only teyerse.the lower court's verdict if it is so contrary to the evidence as to shock one's sense .of justice. Id; See also commonwealth R.Johnsani 668 A.2d 97, 101 (Pa. 199.5). Because the trial judgeis in the:best .poSiticidlo. view the evidence presented,.. an appellate court Will give that judge the utmost 11 consideration when reviewing the court's determination On whether the* verdict is against the Weight ofthe.evidence. Commonwealth Morgan, 913. A.2d 906 (Pa. Super. 2006), A:"triie weight-of-the -evidence challenge concedes that sufficient evidence exists to sustain. the verdict but.questions which evidence is 0.bQ believed." Commonwealth. y. Charlton,. 902. A.2d.554, 561 (Pa. Super.. 2006). Moreover, prosecution because *of a mere anew trial should not be: granted in a criminal conflict in. the testimony of.because the judge, on the.s.attle.factS, may have arrived.4 a different.conclusion. Commohwealth v. Widmer, 744.A.2d 745,752' (Pa. 2000). To be against the weight of the evidence, the verdict must shock one's sense of justice:or be an abuse.of discretion by the trial court. Id.. As described supra, the, evidence.presented. at. trial was' sufficient to support a conviction for attempted murder, robbery, aggravated assault, conspiracy' and possessing an instrument of crime. 'With that analysis in mind,.one..must. consider whetherthe..verdict in this case shocks one"s:.sense. ofjustice or.represents, an abuse of discretion.. Given thestrengthand consistency ofthetestimpny pres.entedbythe Commonwealth's witnesses, it, does neither. Id,. In the instant case, the court.chose to, credit the testimony of the complainant,. the police officer and deteetivesiinveStigating the case; The evidence found 'credible by the point was .clearly.presented... It showed the complainant Observed Appellant in the Chinese restaurant Minutes before Appellant robbed the two Men. .Albalaclejoi immediately recognized Appellant, when he:approached the complainants on, FrankfordAvenue, due to. his unique tattoos 'and. green:coat. Mr. .Albaladejn positivelyidentified Appellant when he. was shown a photo. array by. Detective Dusalc.. 'He, stated he was one:Inindred present sure" Appellant was the individual 12: who shot and robbed the pair when he saw his photo. He also positively identified Appellant at trial. Furthermore, Mr. Alhalaclejo and: Nit. Reyes' testimony was consistent throughout the police investigation and at trial, notwithstanding Mr. Reyes' .language bmiet. The court had the. opportunity to observe any claimed inconsistencies in thewitnesses' testimony. The fact that the Appellant was. fOund .guilty after all the evidence Was presented. was not .contrary.tOthe:.evidence or shocking to the conscious, As stated, determining.a weight of the .evidenceclaim is reserved exclusively for the fact -finder and should not be dishithedabsent an abuse of discretion.. No. abuse of discretion occurred in the instant case For the foregoing reasons, Appellant's: claim that: the verdict was against the weight of the: evidence must also fail. 13 Conclusion ii sunimary, this ..colut has carefully reviewed the entire record and finds no::harmftil,. prejudicial, Or reversible .errof and nothing:to justify the granting. of Appellant's request for relief. For thereasons set forth. aboye, the judgment of the. trial court should be.affirmed. J. 14

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