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Commonwealth of Pennsylvania v. Kevin Lofton

December 7, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
KEVIN LOFTON, APPELLANT



Appeal from the Judgment of Sentence August 15, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010925-2009

The opinion of the court was delivered by: Bowes, J.

J-S71012-12

BEFORE: BOWES, ALLEN, and PLATT,*fn1 JJ.

OPINION BY BOWES, J.

Kevin Lofton appeals from the judgment of sentence of life imprisonment without parole imposed following his convictions of second- degree murder, robbery, criminal conspiracy to commit robbery, possession of an instrument of crime, and carrying a firearm without a license. We affirm Appellant's convictions, but, because Appellant committed the murder as a juvenile, we vacate his judgment of sentence and remand for resentencing in accordance with Miller v. Alabama, 132 S.Ct. 2455 (2012).

On Christmas evening, 2007, the victim, Andrew Jackson, was visiting with family in Philadelphia. The family was enjoying a game of cards when Mr. Jackson decided to retrieve a case of beer from his car. A group of young men surrounded Mr. Jackson in an attempt to rob him. Mr. Jackson resisted and was shot seven times with a .25 caliber semi-automatic handgun. The victim's cousin and several neighbors heard the shots and observed the attackers flee. In addition, two passersby, a mother and daughter, telephoned police moments before the shooting to report the robbery. However, none of the witnesses could identify the assailants and the case initially remained unsolved.

The investigation renewed over one year later when a witness, who was under arrest at the time, came forward and provided information that he saw Appellant and two others fleeing from the scene and observed Appellant carrying a black handgun. The witness, Terrance Farley, also asserted that Appellant and his co-defendants admitted to shooting someone during a robbery. Mr. Farley, at trial, denied making statements to police that implicated Appellant and two co-defendants, Anwar Shamsid-Deen and Antoine Ray. Instead, he acknowledged only that he identified the three men as persons he knew from the neighborhood.

The police investigation also led them to J.D., a fifteen-year-old juvenile, who was thirteen at the time of the shooting. J.D. resided at Glen Mills, a juvenile facility. Philadelphia police traveled to Glen Mills, retrieved J.D., and returned with him to Philadelphia, a forty-five to fifty minute trip. Police handcuffed J.D. in the vehicle and did not alert his mother of the purpose of their interrogation. J.D. informed police that he was present during the robbery and that Appellant and his co-defendants attempted to rob the victim before Appellant shot him. At trial, J.D. denied inculpating Appellant and his two co-defendants.

Appellant and his two co-defendants were tried jointly. On May 4, 2011, the jury acquitted Appellant of first-degree murder, but adjudicated him guilty of second-degree murder, robbery, conspiracy to commit robbery, and carrying a firearm without a license. The trial court sentenced Appellant, on August 15, 2011, to a mandatory term of life imprisonment based on the murder conviction. Appellant contested the imposition of the mandatory at sentencing, averring it was unconstitutional because he was a juvenile when he committed the crime. Specifically, Appellant argued that the sentence violated his Eighth Amendment right against cruel and unusual punishment and his due process rights under the Fourteenth Amendment. Appellant also filed a post-sentence motion, which the trial court denied. This appeal ensued. The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for our review. Appellant presents two questions for our consideration.

I. Is the Defendant entitled to a new trial as the verdict is not supported by the greater weight of the evidence and where the Trial Court abused its discretion in denying a Motion for New Trial?

II. Has the Defendant been denied due process of law and equal protections of the laws under the Constitution of the United States and the Constitution of Pennsylvania and has the Defendant been subject to cruel and unusual punishment where the Defendant, a juvenile at the time that this crime was committed, has been sentenced to life imprisonment without the possibility of parole?

Appellant's brief at 3.

Appellant labels his initial challenge as a weight-of-the evidence claim. We evaluate such claims under settled precepts.

[W]e may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). Hence, a trial court's denial of a weight claim "is the least assailable of its rulings." Commonwealth v. Diggs, 949 A.2d 873, 880 (Pa. 2008). Conflicts in the evidence and contradictions in the testimony of any witnesses are for the fact finder to resolve. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003). As our Supreme Court has further explained,

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. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. 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."

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (citations omitted). In addition, 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. Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa.Super. 2011). Failure to properly preserve the claim will result in waiver, even if the ...


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