Com. v. Johnson

• Citation: 910 A.2d 60
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jamar JOHNSON, Appellant.
• Decision Date: 26 September 2006
• Court: Superior Court of Pennsylvania

910 A.2d 60

COMMONWEALTH of Pennsylvania, Appellee, v. Jamar JOHNSON, Appellant.

Superior Court of Pennsylvania.

Argued May 18, 2006.

Filed September 26, 2006.

Reargument Denied November 30, 2006.

COPYRIGHT MATERIAL OMITTED

William P. Wismer, Media, for appellant.

William R. Toal, III, Asst. Dist. Atty., Media, for Com., appellee.

BEFORE: JOYCE, LALLY-GREEN, JJ., and McEWEN, P.J.E.

OPINION PER CURIAM:

¶ 1 Appellant, Jamar Johnson, appeals from the judgment of sentence to serve an aggregate term of imprisonment of from twenty-two years to forty-nine years, imposed after a jury found him guilty of attempted murder, aggravated assault, recklessly endangering another person, intimidation of a witness, retaliation against a witness, and unlawful possession of a firearm. We affirm in part, vacate in part, and remand for a new sentencing hearing.

¶ 2 The factual background of this appeal commenced on January 14, 2003, when the victim in the present case, Shanté Powell, testified on behalf of the Commonwealth at a preliminary hearing for appellant's brother, Raheem Johnson, upon the charges of murder in the first degree. Co-defendant Omar Horsey, an acquaintance of both Raheem Johnson and appellant, was also present at the preliminary hearing.

¶ 3 Three weeks after her testimony at the preliminary hearing, Shanté, who was staying with her sister, Monica Powell, at Monica's apartment on Renshaw Road in Chester, walked with her sister, in the early morning hours of February 3, 2003, from the apartment to a gas station convenience market on the northeast corner of Renshaw and Township Line Roads to purchase snacks. When Shanté and Monica were returning home, appellant rose up from behind a set of bushes along the sidewalk four to five feet in front of them. Shanté and Monica immediately recognized appellant, although he had pulled the hood of his sweatshirt tightly around his chin and forehead in an attempt to conceal his face. Appellant pointed a handgun at Shanté's head and fired, but did not strike her. Shanté turned and ran across Township Line Road back toward the gas station. Monica, before fleeing across Renshaw Road, saw a second male rise from the bushes and fire a handgun at her sister. Appellant pursued Shanté into Township Line Road and fired several more rounds at her. Two shots hit the door of the convenience store. One round, however, struck Shanté in the heel of her foot. Appellant and his accomplice then retreated back toward Renshaw Road and disappeared down an alleyway.

¶ 4 Shanté limped back to the gas station and managed to enlist the aid of Darrin Crawford, a customer who had heard the shots from his location at the gas station. Mr. Crawford drove Shanté and her sister to Crozer-Chester Medical Center. Both sisters testified that, after the shooting and en route to the hospital, they discussed the identities of the shooters: Shanté told Monica that it was appellant who had attacked her, while Monica identified appellant and co-defendant Horsey as participants in the ambush. The trio arrived at Crozer-Chester Medical Center around 2:05 a.m., where Shanté was admitted for several hours for treatment for the bullet lodged in her foot.

¶ 5 Chester City police arrived on the scene of the shooting shortly after 2:00 a.m. and recovered eleven shell casings from around the southeast corner of Renshaw and Township Line Roads and three bullet fragments from inside the convenience store. Several officers also proceeded to Crozer-Chester Medical Center and interviewed Monica, who identified appellant by name, described him as a six-foot to six-foot, two-inch, light-skinned African American male weighing one hundred and seventy to eighty pounds. The police also interviewed Shanté and presented her with a book of photographs, from which she identified appellant. After Shanté was discharged from the medical center at 9:15 a.m., she and her sister went to the Chester City police station, where, in separate rooms, they each identified appellant and co-defendant from among photographs contained in photograph books.

¶ 6 On the following day, February 4, 2003, Sergeant Darren Alston of the Chester City police responded to a report that patrol officers had located appellant. Sergeant Alston arrived on the scene at approximately 8:00 p.m. and observed appellant standing and leaning into the driver's side window of a blue Oldsmobile, with marked police patrol vehicles positioned in front of, and behind, the Oldsmobile. When officers then approached appellant on foot, appellant began to back away from the Oldsmobile. Sergeant Alston, who was behind appellant, ordered him to move away from the vehicle and get on the ground, but appellant fled the scene and discarded a jar before stopping three blocks away. Sergeant Alston, who pursued appellant on foot, took him into custody and, as he proceeded back to his vehicle, recovered the jar, which contained marijuana.

¶ 7 Appellant was taken to the Chester Police station, and, as his Miranda warnings were being recited, he stated, "I was at home." Appellant was charged with attempted murder, aggravated assault, recklessly endangering another person, intimidation of a witness, retaliation against a witness, unlawful possession of a firearm, and conspiracy. The following year, on April 5, 2004, the trial court held a hearing on motions in limine and denied appellant's motion to exclude evidence of his flight from police at the time of his arrest. After a jury, on April 16, 2004, found appellant guilty of attempted murder, aggravated assault, recklessly endangering another person, intimidation of a witness, retaliation against a witness, and unlawful possession of a firearm, the trial court, on September 8, 2004, imposed an aggregate sentence of imprisonment of from twenty-two years to forty-nine years, which included a term of imprisonment of from seventeen and one-half years to forty years on the charge of attempted murder. Post-sentence motions were denied, and this appeal followed.

¶ 8 Appellant, in the brief filed in support of this appeal, raises the following questions for review:

Whether the trial court committed error and abuse of discretion in denying appellant a new trial because the verdict, based as it was solely on an identification of appellant that was, under the circumstances, impossible?

Whether the verdicts of guilty were supported by sufficient evidence?

Whether the trial court committed error and abuse of discretion in admitting evidence of appellant's flight, where the evidence failed to show appellant fled for fear of apprehension for the shooting in the within matter?

Whether the sentence of seventeen and one-half years to forty years imprisonment imposed for the crime of attempted murder was illegal, where there was insufficient evidence that the victim suffered serious bodily injury?

¶ 9 Appellant first argues that the verdict was against the weight of the evidence because (1) the testimony of Shanté Powell and her sister identifying appellant as the shooter was not credible, since both "had but seconds to see partially covered faces" that were in constant motion, and (2) their testimony varied to such a degree as to render it unworthy of belief. Brief for Appellant, 24. For this Court to reverse the jury's verdict on weight of the evidence grounds, we must determine that the verdict is so contrary to the evidence as to "shock one's sense of justice." Commonwealth v. Spotz, 552 Pa. 499, 507, 716 A.2d 580, 583 (1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999); Commonwealth v. Lloyd, 878 A.2d 867, 872 (Pa.Super.2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005). Our standard governing review of a weight of the evidence claim is well-settled.

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. 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. 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 and that a new trial should be granted in the interest of justice.

Commonwealth v. Widmer, 560 Pa. 308, 321-322, 744 A.2d 745, 753 (2000) (citations omitted); see also: Commonwealth v. Tharp, 574 Pa. 202, 217-218, 830 A.2d 519, 528 (2003), cert. denied, 541 U.S. 1045, 124 S.Ct. 2161, 158 L.Ed.2d 736 (2004).

¶ 10 The record in this case reveals that Shanté Powell and her sister, Monica, had been familiar with appellant by appearance, and by name, for several years prior to this incident, and that both had an opportunity to observe appellant at a close range of four to five feet, in an area that was relatively well illuminated by the surrounding street lamps and the lights from the gas station. Ms. Powell and her sister immediately recognized appellant, identified him as their assailant, and selected his photograph from among picture books. Moreover, the testimony of Ms. Powell and her sister as to these essential facts underlying their identification of appellant were substantially similar. The jury obviously accepted the testimony of Ms. Powell and her sister, and this Court discerns no basis upon which to conclude that the trial court erred¹ or abused its discretion in denying appellant's request for a new trial based on the weight of the evidence identifying appellant as a shooter. In essence, this argument is absolutely meritless.

¶ 11 Appellant next challenges the sufficiency of the evidence. Our standard of review when faced with a sufficiency of the evidence challenge is well established:

A claim challenging the sufficiency of...