J-S71015-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




TERRELL ANTWON

                       Appellant                   No. 2161 EDA 2015


           Appeal from the Judgment of Sentence June 23, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001160-2014


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                       FILED FEBRUARY 08, 2017

     Terrell Antwon appeals from the judgment of sentence of life in prison

without parole plus ten to twenty years incarceration imposed after a jury

found him guilty of murder in the first-degree, conspiracy, possession of a

firearm in a public place, possession of an instrument of crime, and

aggravated assault. We affirm.

     On May 28, 2012, Joel Watson was standing in front of Dante Davis’

house speaking with an acquaintance, Cassandra Nesmith, along the 4600

Block of North 16th Street in Philadelphia.   Mr. Davis’ house was situated

across the street from Stenton Park. While the two were talking, Appellant

and Theodore Johnson emerged from the park. Since Mr. Watson and Ms.

Nesmith were facing the house, they did not see Appellant and Mr. Johnson


* Former Justice specially assigned to the Superior Court.
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approaching. Without warning, Appellant and Mr. Johnson fired a combined

forty-one shots at Mr. Watson and Ms. Nesmith.        Mr. Watson was fatally

injured and Ms. Nesmith suffered three superficial wounds.          Mr. Davis

avoided harm by diving inside his house when he observed the gunmen

approaching.   After the prolonged volley, Appellant and Mr. Johnson fled

through the park.

      At the time of the shooting, John Perkins was standing two blocks

away on the other side of the park.     Shortly after the gunfire ceased, Mr.

Perkins saw Appellant and Mr. Johnson running through the park. He noted

that Appellant was carrying a firearm. Although the two did not interact at

that time, on two subsequent occasions Appellant insinuated to Mr. Perkins

that he shot Mr. Watson due to money. Approximately one month following

the shooting, Mr. Perkins saw the same gun in the possession of a man

being chased by police.     Officers recovered the weapon and a forensic

analysis confirmed it was one of the guns employed during the shooting of

Mr. Watson.

      Based on the foregoing, Appellant was charged with murder in the first

degree, conspiracy, firearms not to be carried without a license, carrying

firearms in public in Philadelphia, possession of an instrument of crime

(“PIC”), aggravated assault, simple assault, and recklessly endangering

another person. A jury found Appellant guilty of murder in the first degree,

conspiracy, carrying firearms in public in Philadelphia, PIC, and two counts of

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aggravated assault.    The remaining charges were nolle prossed.       After a

sentencing hearing, the court imposed the mandatory sentence of life

imprisonment without the possibility of parole on the count of murder in the

first degree. The two counts of aggravated assault merged for the purpose

of sentencing, and the court levied a term of ten to twenty years

incarceration running consecutively to his conviction for murder.           The

sentence on the remaining counts was set to run concurrently to Appellant’s

life imprisonment. Appellant did not file a post-sentence motion, but filed a

timely notice of appeal to this court. He complied with the court’s order to

file a Rule 1925(b) statement of matters complained of on appeal and the

court filed its Rule 1925(a) opinion. This matter is now ready for our review.

      Appellant raises three questions for our consideration:

             I.   Is [Appellant] entitled to an Arrest of Judgment on
                  the charge of murder in the first degree and all
                  related offenses where the evidence was insufficient
                  to establish that [Appellant] was a principle,
                  conspirator or an accomplice to the stated charge and
                  where there was insufficient evidence to sustain the
                  verdict?

            II.   Is [Appellant] entitled to a new trial on the charge of
                  Murder in the First Degree and all related charges
                  where the greater weight of the evidence did not
                  support the verdict?

           III.   Is [Appellant] entitled to a new trial where the Trial
                  Court erred by failing to take appropriate remedial
                  action when the prosecutor engaged in misconduct by
                  commenting on [Appellant’s] supporters in the room
                  when there is absolutely no evidence to support the



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                  prosecutor’s arguments that they were there to
                  disrupt and intimidate people?

Appellant’s brief at 3.

      Appellant’s first issue assails the sufficiency of the evidence supporting

his conviction.   Our scope and standard of review of a sufficiency claim is

well-settled. In evaluating a sufficiency challenge, we evaluate the record in

the light most favorable to the Commonwealth as verdict winner, giving the

prosecution the benefit of all reasonable inferences to be drawn from the

evidence. Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super. 2016).

Moreover, “[e]vidence will be deemed sufficient to support the verdict when

it establishes each material element of the crime charged and the

commission thereof by the accused beyond a reasonable doubt.”               Id.

(citation omitted). However, the Commonwealth may sustain its burden by

means of wholly circumstantial evidence. Id. In addition, “this Court may

not substitute its judgment for that of the factfinder, and where the record

contains support for the convictions, they may not be disturbed.”           Id.

Finally, “the finder of fact is free to believe some, all, or none of the

evidence presented.” Id. at 262.

      Appellant asserts there was insufficient evidence to convict him for the

crimes arising from Mr. Watson’s murder. In order to sustain a conviction

for first-degree murder, the Commonwealth must prove that: (1) a human

being was unlawfully killed; (2) the person accused is responsible for the



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killing; and (3) the accused acted with malice and specific intent to kill.

Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015); 18 Pa.C.S. §

2502(a).   Under the Crimes Code, murder in the first degree requires an

“intentional   killing,”   which   is   defined   as   a   “willful,   deliberate   and

premeditated killing.” 18 Pa.C.S. § 2502(d). The use of a deadly weapon

on a vital part of the body is sufficient to establish the specific intent to kill.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016).

      Appellant maintains that the Commonwealth proffered no evidence

which directly tied him to the shooting. Appellant emphasizes that Mr. Davis

and Ms. Nesmith, who identified him as the shooter prior to trial, recanted

that identification during trial when they testified that the police had forced

them to implicate Appellant. Finally, he contends that Mr. Perkins did not

identify him as the shooter, and thus, the verdict was based wholly on

inferences, suspicion, and conjecture.

       Instantly, the Commonwealth offered evidence that Mr. Watson died

from gunshot wounds to his head, chest, and leg.                  The record clearly

supports the finding that Mr. Watson’s injuries were caused by two

individuals who approached him from the park and fired forty-one projectiles

at him and Ms. Nesmith.

      In support of its position, the Commonwealth offered the testimony of

Ms. Nesmith. Ms. Nesmith testified that she gave a statement to police after

receiving medical treatment for her injuries wherein she recounted the

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events of the night and identified Mr. Davis and Mr. Watson as the other two

victims.   She stated that she did not want to get involved in the

investigation, but that the police officers who took her for medical treatment

forced her to do so. Ms. Nesmith also stated that she interacted with police

on April 2, 2013, over a year after the incident.     That day, she identified

Appellant from a photographic array by signing her name underneath his

photograph.   However, Ms. Nesmith stated at trial that she had done so

because a police officer had pressured her to, and that the officer had circled

Appellant’s picture prior to handing her the array.

      The Commonwealth also offered the testimony of Mr. Davis. Mr. Davis

admitted that he provided the police with a statement in the early morning

hours following Mr. Watson’s murder. In that statement, he recounted the

events surrounding Mr. Watson’s murder and observed that one of the

shooters was a short, stocky black man wearing a hooded sweatshirt. Mr.

Davis disputed evidence indicating that he had subsequently identified

Appellant from a photographic array.       In response to a Commonwealth

exhibit showing that he circled Appellant’s image, wrote the words “shooter”

and “had Mac/TEC” next to the photo, and signed his name to the

identification, Mr. Davis refuted the suggestion that he had identified

Appellant at any time during the investigation. N.T. Trial, 4/21/15, at 209-

211; 216-220.




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     Finally, the Commonwealth presented the testimony of Mr. Perkins.

He testified that he saw Appellant and Mr. Johnson running through the park

shortly after the gunfire ceased. He observed Appellant wearing a hooded

sweatshirt and carrying the same style of firearm ultimately determined to

have been used in the attack.     Mr. Perkins also said that he encountered

Appellant shortly after seeing him in the park.        At that time, Mr. Perkins

asked Appellant about the incident, and Appellant responded that “he had to

take care of something for that bread.” N.T. Trial, 4/22/15, at 121. A few

days later, Mr. Perkins again questioned Appellant. Appellant reiterated that

he had to “take care of something for bread.”          Id. at 123.   Mr. Perkins

clarified that “bread” referred to money.    Id. Finally, Mr. Perkins testified

that he witnessed police seize the same gun that Appellant was carrying on

the night in question during a subsequent police chase of another individual.

Forensic analysis determined that the weapon recovered by police was used

in Mr. Watson’s slaying.

     We find, when viewing the evidence in the light most favorable to the

Commonwealth     as   verdict   winner,   that   the   Commonwealth    provided

sufficient evidence to prove beyond a reasonable doubt that Appellant

intentionally shot and killed Mr. Watson and injured Ms. Nesmith in concert

with Mr. Johnson.     Mr. Perkins’ testimony established that Appellant was

seen fleeing from the scene of the crime moments after Mr. Watson was

fatally injured. Furthermore, Mr. Perkins saw Appellant carrying one of the

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weapons utilized in the attack.      Based on this testimony, the jury could

reasonably infer that Appellant was one of the two individuals who

approached Mr. Watson and discharged a total of forty-one bullets, killing

him and injuring Ms. Nesmith. Thus, Appellant is not entitled to relief.

      Appellant’s second issue challenges the weight of the evidence.       In

order to preserve a challenge to the weight of the evidence, “a defendant

must present his challenge to the weight of the evidence to the trial court for

a review in the first instance.”   Commonwealth v. Stiles, 143 A.3d 968,

980 (Pa.Super. 2016). A weight of the evidence claim must be preserved

either in a post-sentence motion, by a written motion before sentencing, or

orally prior to sentencing.   Commonwealth v. Ford, 141 A.3d 547, 556

(Pa.Super. 2016); Pa.R.Crim.P. 607.      The failure to properly preserve a

weight of the evidence claim will result in waiver, even if the trial court

addresses the issue in its opinion. Commonwealth v. Thompson, 93 A.3d

478, 490-491 (Pa.Super. 2014). Appellant failed to preserve to claim based

on the weight-of-the-evidence since he did not file a post-sentence motion

raising the issue nor did he make an oral or written motion prior to

sentencing. Thus, the claim is waived.

      Finally, Appellant alleges that the prosecutor made improper remarks

during his closing statement which prejudiced the jury against him.        We

evaluate a claim of prosecutorial misconduct in a closing statement under

the following standards:

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      any challenged prosecutorial comment must not be viewed in
      isolation, but rather must be considered in the context in which
      it was offered. Our review of a prosecutor’s comment and an
      allegation of prosecutorial misconduct requires us to evaluate
      whether a defendant received a fair trial, not a perfect trial.
      Thus, it is well settled that statements made by the prosecutor
      to the jury during closing argument will not form the basis for
      granting a new trial “unless the unavoidable effect of such
      comments would be to prejudice the jury, forming in their minds
      fixed bias and hostility toward the defendant so they could not
      weigh the evidence objectively and render a true verdict.” The
      appellate courts have recognized that not every unwise remark
      by an attorney amounts to misconduct or warrants the grant of a
      new trial.    Additionally, like the defense, the prosecutor is
      accorded reasonable latitude, may employ oratorical flair in
      arguing its version of the case to the jury, and may advance
      arguments supported by the evidence or use inferences that can
      be reasonably derived therefrom. Moreover, the prosecutor is
      permitted to fairly respond to points made in the defense’s
      closing, and therefore, a proper examination of a prosecutor’s
      comments in closing requires review of the arguments advanced
      by the defense in summation.

Commonwealth v. Scott, 146 A.3d 775, 778-779 (Pa.Super. 2016)

(citations omitted).

      Appellant argues the following statement, made by the prosecutor

during closing arguments, improperly prejudiced the jury:

      Prosecutor: And let’s face it, folks, even at trial it’s not easy to
      get up here and testify and sit in this chair in front of all these
      people, talk into the microphone, right, and testify about what
      happened right across from the person that you identified. The
      person that you saw do this. That’s not easy to do. It’s an open
      courtroom. It’s public. The Judge can’t even exclude people
      except in limited, unique circumstances if there’s a problem,
      right?

           So when all these people come in and watch, right? We
      got family, right?     We got friends, people from the
      neighborhood. Anybody can come in and watch and do you

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      think that as we sat here . . . and all these people testified . . .
      and all these people in the back row coming and going and
      coming and going, do you think that all those adult men back
      there can’t hold it and not go to the bathroom for an hour while
      we work through a witness?

N.T. Trial, 4/24/15, at 44-45.     Appellant contends that the prosecutor’s

statements indicated to the jury that the behavior of the individuals sitting in

the back of the courtroom was conducted to intimidate certain witnesses,

and as a result, those witnesses altered their testimony.

      Upon review of the record, we observe that Mr. Davis and Ms.

Nesmith, who had previously identified Appellant in statements they made to

the police, recanted that identification at trial.   In his closing statement,

defense counsel highlighted this fact and argued that the Commonwealth

therefore did not offer any evidence as to who perpetrated the crime. N.T.

Trial, 4/24/15, at 21. The prosecutor, in response, attempted to explain the

witnesses’ recantation as resulting from distractions occurring in the

courtroom during their testimony. Indeed, the record reflects that the trial

court took remedial measures to mitigate ongoing distractions in the

courtroom during the proceeding. N.T. Trial, 4/22/15 at 118, 140; 4/24/15,

at 7 (stating, “Not only that, I started to say y’all can’t come in and out.

You’re in, you stay in because it was a distraction with people coming in and

out all the time.”).   Thus, the prosecutor’s statement fairly responded to

points made in the defense’s closing, and thus, were proper. Scott, supra.

Hence, this claims fails.

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2017




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