Commonwealth v. Jackson, J-S06044-21

• Decision Date: 08 April 2021
• Docket Number: J-S06044-21,No. 1588 EDA 2019,1588 EDA 2019
• Parties: COMMONWEALTH OF PENNSYLVANIA v. ERIC JACKSON Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA v. ERIC JACKSON Appellant

J-S06044-21

No. 1588 EDA 2019

SUPERIOR COURT OF PENNSYLVANIA

April 8, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered February 26, 2019

In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005662-2017

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.^*

MEMORANDUM BY PELLEGRINI, J.:

Eric Jackson (Jackson) appeals the judgment of sentence entered by the Court of Common Pleas of Delaware County (trial court). Following a jury trial, he was found guilty of aggravated assault (18 Pa.C.S. § 2702(a)(1)); attempted murder (18 Pa.C.S. §§ 901, 2502); assault of a law enforcement officer (18 Pa.C.S. § 2702.1(a)); and illegal possession of firearms (18 Pa.C.S. § 6105). The trial court imposed an aggregate prison term of 40 to 80 years. Finding that none of Jackson's grounds for appellate relief have merit, we affirm.

I.

Jackson was arrested following an incident that took place at about 2:00 a.m. on August 17, 2017.¹ That evening, while Officers Steven DiBello and Mitchell Holobowicz were patrolling an area where there had been a recent string of automobile break-ins, they noticed that two men were peering into a parked vehicle. The officers immediately approached, identified themselves as police and stepped out of their patrol car. The officers asked the suspects if they would speak to them and they initially complied.

Officer DiBello asked one of the two men (who he later identified as Jackson) for an identification card. While the officers spoke with Jackson, their patrol car's emergency lights were illuminating the area. Further, both officers pointed their flashlights in the direction of Jackson from about four feet away, which was sufficient for them to clearly see his entire body, including his face. See Trial Transcript, 10/31/1018, at p. 42.

The verbal encounter abruptly ended about ten seconds later when Jackson uttered a profanity and ran away. Officer DiBello pursued on foot and Officer Holobowicz pursued in his vehicle after confirming that the second man had no weapons. Officer DiBello chased Jackson through a series of residential properties, requiring him to run between houses and scale fences. During thechase, Officer DiBello saw Jackson drop and then quickly pick up a black object. He recounted that Jackson was wearing a white t-shirt, black sweatpants and black sneakers. Both officers briefly lost sight of Jackson at this stage of the chase.

A few seconds later, though, right as Officer Holobowicz caught up to Officer DiBello, they saw a person they believed to be Jackson sprawled on the roof of a garage that stood just four feet from the ground. They pointed their flashlights on the person, who then jumped off the roof of the garage and ran away, defying the officers' orders to stop. The officers did not clearly see the face of the person at that point, but they were able to see the contours of his body, as well as his clothing, which matched those worn by Jackson at the outset of the encounter.

The situation escalated when this same fleeing suspect tried to hide from the pursuing officers by squatting behind a parked car. As Officer DiBello neared, he saw the person he later identified as Jackson pull a gun from his waistband and point it at him. Jackson opened fire and Officer DiBello quickly took cover. After the gunfire ceased, Officers DiBello and Holobowicz resumed their pursuit.

The officers chased Jackson to a construction yard. They saw that when Jackson struggled to scale a perimeter fence, his white t-shirt caught on the fence's wiring and he dropped the gun he was carrying. Officer DiBello orderedJackson to stop and put his hands up, but he instead continued to flee and managed to escape.

Later that morning, an employee at the construction yard arrived at approximately 6 a.m. to begin work. This worker was aware of the manhunt in the area, so he became alarmed when he saw a shirtless man leaving the yard. He reported the intruder to police and surveillance videos captured the image of the man described in the call. A second worker also saw the shirtless man leaving the yard and jumping a fence to get into an adjacent lot.

In response to that report, Officers DiBello and Holobowicz came back to the scene and soon observed Jackson on a nearby street. Jackson was shirtless, displaying fresh scratches on his chest, and he wore black shorts and black sneakers. Both Officers DiBello and Holobowicz recognized Jackson as the man they had initially stopped and chased. They were then able to place Jackson under arrest.

A forensic investigation of the scene yielded a black handgun near where Jackson had climbed a fence to get into the construction yard. Fired cartridge casings, bullet specimens and bullet jackets were also recovered where Jackson had shot at Officer DiBello. Testing of those materials matched them to the firearm.

Police also recovered a fragment of a white t-shirt that had been caught on the top of the fence that Jackson had climbed. Further, police found a pair of black sweatpants in a nearby dumpster. A white t-shirt containing Jackson'sblood was found in that area, as well as an abandoned cellular phone. The fresh cuts on Jackson's chest would have been consistent with a difficult climb over a wire fence.

Jackson admitted during police questioning that he was one of the people who had encountered Officers DiBello and Holobowicz near the construction yard. He claimed that two other men (his brother and a friend) were with him, and that he was not the person who had possessed or discharged a firearm that night. Jackson maintained that at all relevant times, he was wearing a black shirt and shorts, and that the cellular phone recovered at the scene did not belong to him.

Despite Jackson's denials, the cellular phone number he gave to police was the same number assigned to the phone that police had found at the crime scene. The data extracted from the phone included text messages sent by "Eric" which is Jackson's first name. There were also numerous photos of Jackson saved on the phone - even images of him wearing the same black sweatpants and white t-shirt worn by the man who had fled from Officers DiBello and Holobowicz. Text messages in the phone sent within six hours of the encounter with the police referred to Jackson's possession and attempted sale of a "strap" which he acknowledged is a slang term for a firearm.

At trial, Jackson's sole defense was misidentification. He admitted he was present at the scene the night of the shooting, that the cellular phone belonged to him, and that he fled from the police, explaining that he was onparole and was afraid of being found in violation of the terms of his release. He attributed the shooting to his friend named "Quay." Jackson insisted that he had not been wearing the black sweatpants and white t-shirt that was worn by the shooter and recovered by police.

The jury found Jackson guilty as outlined above. He then timely filed post-sentence motions challenging the sufficiency and weight of the evidence, as well as discretionary aspects of the sentence. The trial court denied the post-sentence motion in its entirety. Jackson timely appealed and he now asserts four issues:

1. Whether the verdicts of guilty are based on insufficient evidence, where [Jackson] testified that a third person was responsible for the shooting, police lost sight of [Jackson] for a sufficient period of time for another person to be involved, police did not see the face of the perpetrator, and physical evidence recovered by police was not linked to [Jackson].

2. Whether the verdicts are against the weight of the evidence, where [Jackson] could not be identified as the person who committed the shooting and the circumstantial evidence was not of such amount and quality to support a finding that [Jackson] is guilty.

3. Whether a jury instruction under Commonwealth v. Kloiber, [106 A.2d 820 (Pa. 1954)], that identification testimony should be accepted by the jury with caution, is required under circumstances showing that the complaining witness did not in fact see the person who committed the shooting but identified [Jackson] at trial as the perpetrator nonetheless.

4. Whether the sentence of 40 to 80 years amounts to an abuse of discretion, where the sentence was imposed based on the serious nature of the crime only and without regard to mitigating evidence submitted by [Jackson].

Appellant's Brief, at 5-6.

II.

Jackson first argues that the Commonwealth's evidence was legally insufficient because, as a matter of law, he could not be identified as the person who fled from police and shot at Officer DiBello on the evening in question.² He claims he was wearing different clothes than those worn by the shooter, and that the officers had confused him with one of his companions who had been responsible for the shooting. According to Jackson, the absence of visual identification evidence and the lack of forensic evidence linking him to the weapon used in the shooting should have resulted in his acquittal.

When reviewing a sufficiency claim, we must construe the evidence and all reasonable inferences in the light most favorable to the verdict winner. See Commonwealth v. Peck, 242 A.3d 1274, 1279 (Pa. 2020). The evidence is deemed sufficient if the jury, sitting as fact-finder, could have found that the evidence satisfied all elements of the charged offenses beyond a reasonable doubt. See id.; Commonwealth v. Lyons, 79 A.3d 1053, 1062 (Pa. 2013).

Direct or circumstantial evidence may be sufficient to sustain a conviction. See Commonwealth v. Roney, 866 A.2d 351, 356 (Pa. 2005); Commonwealth v. Chmiel, 639 A.2d 9, 11 (Pa. 1994); Commonwealth v.Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012). In fact, some or all elements of an offense may be proven circumstantially as long as such evidence permits a reasonable inference that the element...