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[U] Commonwealth v. Stokes

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TYON STOKES Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of April 20, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0006083-2009

BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J. [**]

MEMORANDUM

WECHT, J.

Tyon Stokes appeals his April 20, 2012 judgment of sentence. We affirm.

On March 15, 2003, at approximately 8:46 p.m., police officers from the City of Philadelphia received a call that an unknown person with a gun had shot a male in the middle of the 5500 block of Chester Avenue in Philadelphia. When the police arrived, Phillip Sheridan, who was known on the streets as "Diesel, " was lying in the middle of the street dying from multiple gunshot wounds, one of which was to the left side of his head. Police rushed him to the local hospital, but to no avail. Sheridan died at the hospital.

Police officers located three spent Winchester .45 caliber casings and one suspected bullet on Chester Avenue, as well as another suspected bullet from a nearby door. Each of the found casings had been fired from the same weapon. The found bullets also were determined to be .45 caliber, though it could not be determined whether they had been fired from the same gun.

The ensuing investigation led the police first to Marc McDonald, who is more commonly known by his nickname "Tap." Shortly after the murder, McDonald met with Detective Grady Patterson and Detective Crystal Williams to provide a statement. McDonald, who was represented by an attorney during the interview, informed the detectives that he knew Sheridan, and that he was present when Sheridan was shot. On that day, McDonald was with Stokes on Chester Avenue when they encountered Sheridan. According to McDonald, Sheridan was selling drugs on that block, which angered Stokes, who believed that he was in control of that block. Stokes instructed Sheridan to cease selling drugs on that block, and warned Sheridan that, if he made another sale, Stokes would kill him. Sheridan ignored the warning, and conducted another sale very shortly thereafter. McDonald told the detectives what happened next: "Tyon and Diesel had words again and Tyon said, I told you if you made another sale, I was going to kill you. And Diesel said, 'I ain't scared. I want to see what's after this anyway.'" Notes of Testimony ("N.T."), 4/17/2012, at 222. McDonald continued to the detectives:

Then Diesel said to Tyon, If you don't kill me, I'm going to kill you. Then Diesel was walking across the street saying to Tyon, We can rumble. And Tyon said, You know we don't do no rumbling out here, showing Diesel his firearm. And Diesel kept walking up on Tyon and Tyon shot him. The first shot looked like it hit the wall and the second shot hit Diesel in his shoulder making Diesel turn a little to his left. And Diesel kept walking up on Tyon and Tyon shot Diesel again hitting him somewhere in the face. And I saw the brain matter jump out the back of Diesel's head. And Diesel fell backwards on the ground and Tyon ran towards 54th and Chester.

Id. at 222-23. McDonald noted to the detectives that Sheridan did not have a weapon that evening. McDonald then identified both Stokes and Sheridan from photographs shown to him by the detectives.

At trial, McDonald claimed that the signatures affixed to the photographs from the interview were not made by him. He admitted signing the bottom of every page of the report made by Detective Patterson that reflected, verbatim, McDonald's answers to the detectives' questions, but insisted that the answers in the reports were not his. McDonald repudiated the answers in the reports, and claimed that he was asked different questions and provided different answers than what is reflected in the report. However, Detective Patterson explained at trial that the report accurately reflected what occurred during the interview, and that McDonald read, approved, and adopted the report from the interview at the time that the report was generated. The report of the interview was admitted as substantive evidence at trial.

Akil Sabur, who was serving a life sentence for an unrelated murder, claimed at trial that he actually was the person who shot and killed Sheridan. However, in 2003, shortly after the murder was committed, Sabur gave a very different statement to the police. Sabur told detectives that, three or four days after the murder, he met Stokes at a local gas station. There, Stokes confessed to him that "some boy had gotten out of line" and that he "had to take care of business." N.T., 4/18/2012, at 80. Sabur had not heard about the murder until Stokes asked him if he had seen a story about it on the news. Sabur told Stokes that he had not heard about it, to which Stokes confessed that he was the one who had shot Sheridan. Sabur characterized Stokes' statements as bragging. Id. Stokes told Sabur that he shot Sheridan twice, once in the body and once in the head. Id. at 81.

At trial, Sabur claimed that his statement incriminating Stokes to the police was false, and that he made the statement in an effort to secure a transfer to a prison closer to his home. Sabur further stated that, at the time he made the statement, he was already charged with one murder and did not want to be charged with a second count of homicide. Knowing that Stokes was a drug dealer in the area, he decided to blame him for Sheridan's murder. Sabur also executed various affidavits from prison in the years prior to Stokes' trial in which he admitted to killing Sheridan. In those affidavits, Sabur asserted that McDonald and Sheridan had robbed Sabur's brother repeatedly, and that, while McDonald was the primary target, the motive for killing Sheridan had been retribution for the robberies.

Sabur stated at trial that he was not pressured to execute the affidavits, or to admit to killing Sheridan, by Stokes or anyone associated with Stokes. However, during the same time that he executed the affidavits, Sabur also sent letters to the Philadelphia District Attorney, in which he begged for protection and for a transfer to a different prison. In one letter, Sabur asserted that he was under extreme pressure to change his story and to admit to the killing of Sheridan. Sabur stated that the pressure was being applied by people associated with Stokes. Sabur reiterated the same in a face-to-face meeting with the assistant district attorney prosecuting the case and the detectives. Sabur claimed that he was only telling them what he thought that they wanted to hear in an effort to be transferred to a prison that was closer to his family.

Detective John McDermott, a homicide detective, was one of the detectives who interviewed Sabur in 2003. Detective McDermott explained that he wrote down the questions posed to Sabur, and the answers that Sabur provided to those questions, verbatim in his report. At the conclusion of the interview, Sabur reviewed the report, including his assertions that Stokes admitted to the murder, and signed each page. The report was introduced as substantive evidence at trial.

Despite statements from McDonald and Sabur in 2003, no arrest warrant was issued for Stokes at that time. The case became a cold case until 2008, when police came into contact with Shaheen Muhammad. In 2006, Muhammad was indicted by the federal government and the state of New Jersey for an extensive string of robberies that Muhammad committed with his uncle Jamil Johnson. Based upon those robberies, Muhammad was facing twenty years in prison in the standard range of the Federal Sentencing Guidelines. To avoid such a lengthy sentence, in 2008, Muhammad decided to cooperate with the government and provide information on unsolved crimes for which he had knowledge, one of which was the Sheridan murder.

Muhammad met Stokes through Johnson. From 2002 to 2003, Muhammad was employed by Stokes, selling marijuana for him on the Chester Avenue block. Eventually, Muhammad was arrested twice for selling marijuana. This caused Muhammad to elect to leave the drug business. As part of this effort, Muhammad sold the vehicle that he owned at the time. Stokes had an extra set of keys for the car. When Muhammad approached Stokes about the keys, Muhammad informed Stokes that he no longer wanted to sell marijuana and that he needed his keys back. Stokes was angered by Muhammad's decision, and threw the keys onto a roof. As the argument ensued, Stokes said to Muhammad: "You see what happened to Diesel, . . . you don't want no problems. . . ." N.T., 4/17/2012, at 75. Muhammad told the FBI that he believed that Sheridan was murdered over drug territory.

Johnson, Muhammad's accomplice in the string of robberies, also had been indicted in 2006 by the federal government for heroin trafficking. Thus, he was facing even more prison time than Muhammad, including a possible life sentence. He too elected to cooperate with the government in order to receive a lighter sentence. However, he had already done so to the satisfaction of the government, and had been sentenced on his two cases, by the time of Stokes' trial. Nonetheless, after Muhammad provided the police with the aforementioned information, the police contacted Johnson. Johnson agreed to speak to the police and to testify against Stokes regarding the Sheridan murder as well, possibly in hopes of having his sentence further reduced for doing so.

At trial, Johnson explained that he and Stokes had sold drugs together on Chester Avenue in 2003. Stokes sold marijuana, while Johnson sold heroin. Johnson stated that Sheridan had just been released from jail, and was trying to "push his weight around" on Chester Avenue. N.T., 4/18/2012, at 90. On the day after the murder, Stokes called Johnson and asked Johnson to meet him. At Stokes' apartment, Stokes confessed to shooting and killing Sheridan with a .45 caliber semi-automatic handgun. Specifically, Stokes explained to Johnson that he had a talk with Sheridan about selling drugs on that particular block, and that Sheridan nonetheless continued to sell drugs. Stokes told Johnson that he first attempted to run Sheridan over with his vehicle. When that did not work, Stokes returned to his apartment and retrieved his .45 caliber handgun. Stokes returned to the scene and shot Sheridan in the stomach at first. Stokes told Johnson that, after the shot to the stomach, Sheridan looked at Stokes and said, "I eat these, pussy. You might as well kill me." Id. at 91. Stokes confessed that he then shot Sheridan in the head. A few days after the murder, Stokes and Johnson drove together to drop off heroin at a particular location. On the way there, Stokes stopped and sold his .45 caliber weapon with which he had killed Sheridan.

After meeting with Muhammad and Johnson in 2008, Detective William Kelhower, a veteran homicide detective assigned to the cold case squad, obtained an arrest warrant for Stokes, and subsequently executed the warrant.

Approximately one year before trial, Detective Kelhower began receiving multiple letters from the Pennsylvania Department of Corrections that were intercepted due to the Department's belief that the letters constituted witness intimidation, or at least attempts at witness intimidation. The letters were all authored by Stokes, who also attempted to mail them. The first letter contained two pictures, one of Lakine Stephenson and one of Antione Moore. Stephenson's nickname is "Kunch, " and next to his picture was the statement "Kunch lives on Allison Street." By Moore's picture, Stokes had written, "This is the person who is dead Brother. I think this is who Ray was saying he seen in the courtroom. He might still live on 54th Street, the block before Elmwood, the block behind, the little block, Glenmore." Id. at 146-48. In the body of the letter, Stokes wrote the following:

Lil Ray was at my court date and said he recognized a nigga from his grandmom's block in there. From the description, it's the deceased's brother. I need you to check the temperature of that situation. Remember the nigga Boo from Allison Street who used to have all them poisonous snakes and alligators. Anyway, he made a statement mentioning my name. They are going to subpoena him. I need him not to come. I know he lives over West Philly somewhere. You can just tell him not to go to court. And if he does, I'm just not that person and he doesn't know me. The nigga Kunch made a statement mentioning my name. The same for him, but instead tell him not to show up at all. Kunch's picture will be enclosed in the envelope. Boo's real name is Carl Pulliam. If you can, look him up on the net.

Id. at 149-50. This letter was addressed to Jeremiah Stokes, but it also contained forwarding information for Darryl Black, who also was in prison.

In another letter, addressed to "Muff (D. Berry), " Stokes admitted his involvement with Sabur's confessions to killing Sheridan:

I got a homie who just recently came home like nine months ago who talking it but he lied about sending me phone care money to get with these witnesses and sneaker money. So we both know how that goes. I'm not going to say how my case is looking because I really don't want to mislead you. I'm going to tell you this case is eight-years-old. They have no physical evidence. They have two people in the feds who admitting to getting a less deal for their cooperation. Their eyewitnesses said in a preliminary hearing that he was never questioned about this crime and didn't know me. Nor did he make a statement. And to put the cherry on top of the cake, I have somebody who sent a notarized letter, an affidavit to the D.A. and my lawyer saying he, himself, committed this said crime and told them why he blamed it on me. So you can deduce from that how my case looks. In my words, bullshit.

Id. at 152-53 (verbatim). Stokes ended this letter with: "Fear none, respect few and kill all snakes and rats." Id.

In a fourth letter, Stokes wrote the following:
As for my situation, I got a new mouthpiece named Gary S. Server. He got at me on the 23rd of March. They will be giving me another date. I'll report it as soon as but we must work. I need you to sign up to go to the library with dude (Quil) once a week just to check up until business is handled. He already has the script to write. I need him to handle that ASAP sending one to Judge Gwendolyn Bright, one to ADA Brian Zarallo, District Attorney and one to the family of Tyon Stokes making sure all of them are notarized. For now legally I need that took care of. As for Tap, sitting duck with the face of a rat.
* * *
Sometimes I know I flips my lid but in this circumstance I can't afford. So I made sure my handshake matched my smile while my head only cried revenge and pain. And how I forced to act towards them two niggas. But nonetheless, one always has to do what he has to do to win except tell and go against principle.

Id. at 154-55.

Finally, Detective Kelhower read a verbatim statement that Sabur provided to him and the assistant district attorney before trial, explaining how Stokes had gotten him to admit to the murder in affidavits to various individuals involved in this trial:

The first time I was approached was in Forest. Darryl Black approached me and said he needed to talk. Black told me to sign up for the law library. I signed up for the regular library on a Thursday morning. I felt safer with more people around. He said he had a letter from Tyon and this is what he wants. Rewrite this letter, get it notarized, fill out the envelope and give it back to Black so that he can check it before he mailed it out. Black told me to take care of this to make it right. I read what he wanted. I knew I had to write it but I figured I would send my letters out right after.

Id. at 159.

Before closing arguments, counsel for Stokes requested a voluntary manslaughter jury instruction, based upon a claim of imperfect self-defense. The request was denied. After closing arguments and instructions from the trial court, the jury found Stokes guilty of first-degree murder[1] and possessing an instrument of crime ("PIC").[2] Stokes immediately was sentenced to life in prison on the murder count. No further penalty was imposed on the PIC count.

On April 27, 2012, Stokes filed post-sentence motions alleging, inter alia, that the verdict was against the weight of the evidence. On August 28, 2012, the trial court denied the motions. On September 7, 2012, Stokes filed a notice of appeal. In response, the trial court directed Stokes to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 26, 2012, Stokes timely complied. On January 8, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Stokes raises the following four questions for our consideration:

I. Whether the [trial court] erred when it denied the defense motion for cause as to juror number 58 during jury selection on 4/16/12 who had indicated that he had a first cousin who worked as a prosecutor in the District Attorney's Office and who did not confirm with certainty that he could be fair and impartial thereby causing [Stokes] to use his last peremptory challenge to disqualify a juror who was arguably incapable of being fair?
II. Whether the [trial court] erred when it denied the defense request for a voluntary manslaughter instruction where there was evidence from an eyewitness that [Stokes] had retreated across the street in order to avoid violence, where the victim was substantially larger than [Stokes], where the victim exhibited aggressive action by coming at [Stokes] to fight, where [Stokes] fired a warning shot, where [Stokes] inflicted non-fatal wounds and the victim kept coming at him and where the victim demonstrated prior use of force to take over the drug corner through violence and intimidation?
III. Whether the adjudication of guilt is against the weight of the evidence and shocking to one's sense of justice where there was credible and persuasive evidence that the victim was killed by another with a strong motive to eliminate him, where the other witnesses were corrupt and polluted sources of information and were implicating [Stokes] to obtain favorable treatment from law enforcement authorities and where even if [Stokes] shot and killed the victim[, Stokes] demonstrated by his actions that he did not there or then intend to engage in violence and did not possess the malice for murder?
IV. Whether the adjudication of guilt is based upon insufficient evidence that [Stokes] possessed the specific intent to kill where [Stokes] retreated in order to avoid violence, where [Stokes] fired a warning shot to frighten the charging victim, where the victim was substantially larger than [Stokes] and where [Stokes] inflicted several non-fatal wounds before stopping the charging victim with the killing shot?

Brief for Stokes at 7.

In his first issue, Stokes argues that the trial court abused its discretion by denying his motion to strike for cause Juror No. 58. That juror testified that he had a first cousin who worked as an assistant district attorney in Philadelphia County, where Stokes was being prosecuted. Stokes maintains that, because the trial court erroneously denied Stokes' motion to strike the juror, he was forced to use his final peremptory challenge to strike Juror No. 58. Hence, Stokes argues that he was prejudiced by the trial court's error.

In reviewing a trial court's decision regarding jury selection, the trial judge is afforded great deference because the judge "is in the best position to assess the credibility of the jurors and their ability to be impartial." Commonwealth v. Blasioli, 685 A.2d 151, 159 (Pa.Super. 1996) (quoting Commonwealth v. Impellizzeri, 661 A.2d 422, 427 (Pa.Super. 1995). As such, a trial judge's decision, based upon the juror's answers and demeanor during voir dire, will not be reversed "absent a palpable abuse of discretion." Commonwealth v. Marshall, 497 A.2d 1100, 1104 (Pa. 1993).

The burden of proving that a prospective juror should be stricken for cause rests with the challenging party. The challenger must demonstrate that the prospective juror "possesses a fixed, unalterable opinion that would prevent him or her from rendering a verdict based solely on the evidence and the law." Commonwealth v. Smith, 540 A.2d 246, 256 (Pa. 1988) (citing Commonwealth v. Martin, 348 A.2d 391 (Pa. 1975)). "The mere fact that jurors may show some indicia of pretrial prejudice is not enough to require that they be stricken from the jury." Blasioli, 685 A.2d at 159. Indeed, "[w]e do not expect jurors to be free from all prejudices . . . rather, the law requires them to be able to put aside their prejudices and determine guilt or innocence on the facts presented." Smith, 540 A.2d at 256 (citations omitted). Therefore, a challenge for cause should only be granted when the prospective juror "has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct or answers to questions." Commonwealth v. Weiss, 776 A.2d 958, 966 (Pa. 2001) (citing Commonwealth v. Wilson, 672 A.2d 293, 299 (Pa. 1996)).

Lastly, it is well-settled that "it is harmless error when a juror who should have been excluded for cause is actually excluded by a peremptory challenge." Commonwealth v. Chambers, 685 A.2d 96, 107 (Pa. 1996). However, "[w]hen a criminal defendant is forced to use a peremptory challenge to excuse a juror who should have been excused for cause, and as a result exhausts his peremptory challenges before the jury is seated, a new trial will be granted." Blasioli, 685 A.2d at 157-58 (citing Impellizzeri, 661 A.2d at 426-27)).

The following exchange occurred between the trial court, the parties, and Juror No. 58 during voir dire:

The Court: Good afternoon, sir. How are you doing?
Juror #58: Good. Thank you.
* * *
The Court: You're close with people who work in law enforcement?
Juror #58: Yes.
The Court: Please tell me.
Juror #58: Two cousins. One is a detective in Southwest and my other cousin works in the District Attorney's Office.
The Court: The one who works in the District
Attorney's Office, how often would you say you see that person?
Juror #58: Four times a year. Holidays.
The Court: Do you know what section of the city they live in?
Juror #58: No.
The Court: Your cousin who works as a detective, how often would you say you see that person?
Juror #58: About twice a month.
The Court: Going back now to the district attorney.
When you were with that person, does he or she talk about their work as a prosecutor?
Juror #58: No.
The Court: And the cousin who is a detective, does that person talk with you about their work as a police detective?
Juror #58: Not to me. No, they do not.
The Court: The fact that you have two relatives who work in law enforcement, are you satisfied that you could be a fair juror both to the Commonwealth and to the defense in this case?
Juror #58: I believe I can.
The Court: Can you think of any reason that would prevent you from being a fair juror in this case?
Juror #58: No, I cannot.
[Defense Counsel]: Sir, your cousin who works as a district attorney's detective, do you know what unit they work in at the District Attorney's Office?
The Court: Two different. Two different. The detective works for the police department.
[Defense Counsel]: You have a cousin who is a detective at Southwest Detectives?
Juror #58: Correct.
[Defense Counsel]: And then you have a relative that works in the District Attorney's Office?
Juror #58: Correct.
The Court: As a prosecutor but not a detective.
[Defense Counsel]: As a prosecutor?
The Court: Yes.
[Defense Counsel]: Do you know what unit they work in?
Juror #58: I do not.
[Defense Counsel]: Do you know how long they have been a prosecutor?
Juror #58: About two or three years.
[Defense Counsel]: This is a first cousin?
Juror #58: Yes, it is.
* * *
[Defense Counsel:] I'm going to challenge this juror for cause. This prospective juror has a close cousin who is in the D.A.'s Office. It would be no different than a potential juror who would come in here and say they were working with a partner in my office. It's the same thing. We have a juror who has a close family connection to opposing counsel. I would object on that basis alone that that juror should be disqualified.
The Court: No. Not given the surrounding circumstances. He sees him two or three times a year. He doesn't even know what unit he works in. That challenge for cause is denied.
[Defense counsel:] Strike.
The Court: Defense is out of strikes.

N.T., 4/16/2012, at 148-54.

Because Stokes used his last peremptory challenge, if the trial court abused its discretion in not striking Juror No. 58, Stokes would be entitled to a new trial. See Blasioli, 685 A.2d at 157-58. However, the trial court plainly did not abuse its discretion.

We recognize that the juror had a family member that worked for the agency that was prosecuting the case against Stokes. However, as we noted above, "some indicia of pretrial prejudice is not enough to require that they be stricken from the jury." Blasioli, 685 A.2d at 159. Rather, the juror's answers and demeanor during voir dire must demonstrate that the juror has a fixed prejudice, or a likelihood of prejudice, such that the juror could not have been fair and impartial under the circumstances. First, it is clear that the relationship between the juror and the assistant district attorney was not a close one. The juror testified that they only saw each other a few times each year, and only on the holidays. Furthermore, the juror did not even know what unit in which his cousin worked. Additionally, nothing in the record indicates that the juror would not have been able to set aside the relationship and render a fair verdict based upon the law and the facts. When asked whether he could be a fair and impartial juror to both sides, Juror No. 58 stated "I believe I can." Moreover, when asked if he could think of anything that would prevent him from being a fair and impartial juror, Juror No. 58 stated "I cannot." The trial court observed the juror's demeanor while making these unequivocal statements. The trial court has considerable discretion in evaluating a prospective juror in such circumstances, and we discern no abuse of that discretion in denying Stokes' challenge for cause to Juror No. 58.

In his second claim for relief, Stokes argues that the trial court erred in denying his request for a voluntary manslaughter instruction based upon the theory of imperfect self-defense. We find this issue to be waived. It is a fundamental precept in Pennsylvania appellate practice that, to avoid waiver of a specific legal claim, that claim must be supported by a citation to, and discussion of, applicable legal authorities. Pa.R.A.P. 2119(a); Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (holding that the appellant's failure to provide adequate discussion of issues raised and citation to supporting authority results in waiver of the issues).

The entirety of Stokes' argument encompasses one and one-half pages. Stokes provides two citations to authority. The first is a citation to the section in the Pennsylvania Crimes Code defining the crime of voluntary manslaughter. The second citation is for the case of Commonwealth v. Harris, 372 A.2d 757 (Pa. 1977), and Stokes provides this citation solely for the definition of heat of passion for voluntary manslaughter purposes even though his argument exclusively pertains to the imperfect self-defense form of voluntary manslaughter. However, the crux of Stokes' claim is that the trial court erred in denying his request to instruct the jury on voluntary manslaughter-imperfect self-defense. Yet, Stokes provides no citations to cases or statutes addressing the applicable standard of review, the basic principles governing such claims, or any cases that arguably support his argument based upon the facts of this case. Simply put, Stokes has failed to present an argument sufficiently supported by legal authority to demonstrate the bare minimum advocacy that we require to establish a viable claim on appeal. We will not make his argument for him. Thus, this claim is waived.

In his third claim, Stokes argues that the verdict was against the weight of the evidence, and that the trial court abused its discretion by concluding otherwise. We disagree.

Our review is governed by the following principles:
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[.]

Widmer, 744 A.2d at 753 (internal citations truncated for continuity). Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations modified).

Unsurprisingly, Stokes focuses his claim primarily upon the credibility of the four main witnesses against him at trial, whom Stokes characterizes as "corrupt and polluted sources." Brief for Stokes at 19. Stokes also argues that the evidence demonstrated that Stokes fired his weapon initially only to stop Sheridan from advancing upon Stokes. Stokes maintains that his initial gunshots were warning shots to Sheridan, and that he fired a shot at Sheridan's head only when Sheridan, a much larger man, continued to move towards Stokes in an aggressive manner. The jury's conclusions to the contrary, according to Stokes, should have shocked the conscience of the trial court.

There is no doubt that the Commonwealth's witnesses had some credibility issues. Both Muhammad and Johnson had cooperated with the government, and had received, or hoped to receive, leniency in their own criminal cases. Sabur confessed on the witness stand that he, not Stokes, was the person who had killed Sheridan. McDonald testified that Stokes did not kill Sheridan, and that the report containing his alleged answers to police questions did not reflect his actual answers.

Nonetheless, the duty to resolve credibility issues belongs to the jury, which was free to believe none, any, or all of a witness' testimony. Here, the jury was free to disregard the fact that Muhammad and Johnson had something to gain though their testimony. The jury was also free to disbelieve Sabur's and McDonald's trial testimony, and to believe instead the statements that they had provided to police detectives, which were admitted as substantive evidence at trial, shortly after the murder occurred. This evidence uniformly established that Stokes approached Sheridan, who was attempting to sell drugs on a block that Stokes had claimed for his own, and threatened to kill Sheridan if he continued to sell drugs in that location. Sheridan ignored the threat, and made another sale almost immediately. Stokes returned to his apartment and retrieved a gun. Stokes went back to the scene and shot Sheridan multiple times, including the one shot to the head that killed Sheridan. Stokes hinted that he was the shooter to Muhammad, and more clearly confessed to it to Johnson. Stokes admitted in his jail letters that he threatened Sabur into changing his story and admitting that he actually was Sheridan's killer.

Therefore, while the testimony at times suffered from credibility problems, the jury was free to make credibility determinations and assign weight to the evidence as it saw fit based upon the evidence and demeanor of the witnesses. The jury's conclusion that Stokes was the shooter, and that he acted with specific intent to kill and not in self-defense was supported by the record. Consequently, we detect no basis in the record to conclude that the trial court abused its discretion in concluding that the jury's verdict did not shock the conscience of the court. Stokes is not entitled to a new trial on this claim.

In his final claim, Stokes challenges the sufficiency of the evidence presented at trial to prove him guilty of first-degree murder. In short, Stokes contends that the Commonwealth did not establish that he acted with a specific intent to kill Sheridan. We disagree.

Our standard of review is well-settled:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. 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 record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa.Super. 2011) (citing Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010)).

To prove first-degree murder beyond a reasonable doubt, the Commonwealth must establish: (1) that the victim was unlawfully killed; (2) that the appellant is responsible for the killing; and (3) that the appellant acted with malice and a specific intent to kill. Commonwealth v. Maisonet, 31 A.3d 689, 693 (Pa. 2011). "[T]he Commonwealth can prove the specific intent to kill through circumstantial evidence." Commonwealth v. Drumheller, 808 A.2d 893, 908 (Pa. 2002) (citing Weiss, 776 A.2d at 963). The Pennsylvania Supreme Court has held that "the use of a deadly weapon on a vital part of a human body is sufficient to establish the specific intent to kill." Weiss, 776 A.2d at 963 (quoting Commonwealth v. Walker, 656 A.2d 90, 95 (Pa. 1995)).

The evidence presented at trial, viewed in the light most favorable to the Commonwealth, established the following: Stokes sold drugs on the 5500 block of Chester Avenue in Philadelphia. Johnson and Muhammad also sold drugs on that block, with Stokes' consent. When Sheridan started selling drugs on that block, Stokes threatened Sheridan. Stokes specifically warned Sheridan that if he continued to sell drugs on that block, Stokes would kill him. Sheridan ignored Stokes, and continued to sell drugs. Stokes went to his home and retrieved a .45 caliber handgun and returned to the block.

Upon his return, Sheridan walked toward Stokes and told him that "we can rumble." Stokes told Sheridan that they don't "rumble" there, and showed Sheridan the gun that he just had retrieved. Sheridan continued to walk toward Stokes. Stokes then began firing his weapon, hitting Sheridan in the body. When those shots did not kill Sheridan, Stokes shot Sheridan in the left side of his head, which eventually killed Sheridan.

McDonald was present when the murder occurred, and related the facts of the incident to the police substantially as we summarized them above. Stokes admitted to Sabur that he shot Sheridan because the "boy got out of line, " requiring him to "take care of business." Sheridan also admitted that he shot and killed Sheridan indirectly to Muhammad, and expressly to Johnson. After confessing to Johnson a few days after the murder, Stokes sold the murder weapon on the way to a drug deal.

This evidence established that Stokes shot Sheridan in the head, unquestionably a vital part of the body, and suffices as proof beyond a reasonable doubt that Stokes acted with specific intent to kill.

As a final matter, we note that Stokes presently attempts to argue that the evidence proved that he shot Sheridan in the head only in an effort to defend himself. Stokes claims that the evidence demonstrate that Sheridan was larger than Stokes, and that Sheridan was "aggressive, violent and possessed with the intent to take over [Stokes'] corner." Brief for Stokes at 21. Stokes contends that he fired warning shots at Sheridan, and that only after the warning shots were unsuccessful did Stokes fire at Sheridan's head in an effort to stop Sheridan. This argument is unavailing. Not only did Stokes not pursue a self-defense claim at trial, but Stokes actually abandoned such a defense after his counsel admitted that he was not going to argue "the reasonableness of shooting a man in the head when he wants to punch you out." N.T., 4/18/2012, at 177. Moreover, Stokes argument is inconsistent with the facts. The altercation that led to Sheridan's death was provoked by Stokes, who initiated contact with Sheridan by threatening to kill him. Stokes then tried to run Sheridan over with a car. When that did not work, Stokes left the scene, retrieved a gun, and returned to the scene and shot an unarmed Sheridan in the head. The evidence clearly established that Stokes was the provocateur, and that, by shooting Sheridan in the head, he acted with specific intent to kill, not in defense of himself. Thus, Stokes' sufficiency challenge fails. Judgment of sentence affirmed.

Judgment Entered.


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