Commonwealth v. Jones, 1893 EDA 2020

CourtSuperior Court of Pennsylvania
Writing for the CourtNICHOLS, J.
Docket Number1893 EDA 2020
Decision Date19 November 2021


Appeal from the Judgment of Sentence Entered January 18, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006906-2017




Appellant Jamal Jones appeals nunc pro tunc from the judgment of sentence imposed following his jury trial and convictions for attempted first-degree murder, conspiracy to commit first-degree murder, aggravated assault, conspiracy to commit aggravated assault, and possession of an instrument of a crime (PIC).[1] Appellant challenges the sufficiency of the evidence supporting all of his convictions. After review, we affirm in part, and vacate in part as to the sentence for conspiracy to commit murder.

We adopt the facts and procedural history set forth in the trial court's October 24, 2019 opinion. See Trial Ct. Op., 10/24/19, at 2-16. Briefly, on the night of August 8, 2017, Appellant, Jahleel Davis (co-defendant), and Taron Ebo-Wilson[2] shot Kendall Rosendary in Norristown, Pennsylvania.[3] At that time, Rosendary was walking on Cherry Street near a playground. Rosendary heard people yelling, and he ran when he saw someone with a gun. Appellant, co-defendant, and Ebo-Wilson shot Rosendary multiple times. Rosendary was rushed to a hospital and survived. Rosendary could not identify who shot him, but told police that at least three men, all of them armed, had attacked him. Rosendary also recalled that two of the attackers were wearing dark hooded sweatshirts.

Norristown Police chased a Chevrolet Impala that left the vicinity of the shooting at high speed. The Impala pulled onto Cherry Street and three individuals fled the Impala on foot. The police recovered a .38 Special caliber revolver containing six fired cartridge casings and a magazine from a .40 caliber Glock Model 27 handgun from the Impala's interior.

The police searched the area around where the Impala stopped and arrested Appellant and Ebo-Wilson hiding under a back porch in the early morning hours of August 9, 2017. The police recovered a .40 caliber Glock Model 27 handgun from the area where they arrested Appellant and Ebo-Wilson. When the police patted down Appellant, they discovered a Chevrolet car key. Appellant told the officers that it was the key to his Impala. The police matched Appellant's key to the abandoned Impala on Cherry Street.

The police arrested co-defendant Davis in a nearby backyard. The police found a .45 caliber Para-Ordnance handgun and a black hooded sweatshirt near the area where they arrested co-defendant. The police also recovered cell phones from the Impala and from Davis.

The police recovered both fired cartridge casings of various calibers and bullet fragments from the scene of the shooting. Detective Eric Nelson of the Montgomery County Detective Bureau, an expert in the field of forensic firearms identification and analysis, testified that he examined the aforementioned firearms as well as fired cartridge casings, bullets, and bullet fragments that the police recovered from the scene of the Rosendary shooting. Detective Nelson opined that the Glock Model 27 firearm recovered near Appellant and Ebo-Wilson fired the .40 caliber fired cartridge casings he examined. Detective Nelson also concluded that a single firearm had fired the recovered .45 caliber cartridge casings, but the Para-Ordnance pistol the police recovered when they arrested co-defendant Davis did not fire those .45 caliber cartridge casings. Detective Nelson further testified that some of the bullets and bullet fragments that were recovered from the scene of the shooting were consistent with bullets fired from the Glock Model 27 pistol and others were consistent with bullets fired from the .38 Special caliber revolver.

The police also recovered several 9mm caliber fired cartridge casings from the scene of the shooting, but the police never recovered a 9mm caliber firearm after the shooting.

The Pennsylvania State Police Harrisburg Regional Crime Lab found gunshot residue on the sweatshirt recovered near co-defendant Davis. Albert Lattanzi of the Harrisburg Crime Lab testified that the presence of this residue on the sweatshirt was consistent with the recent firing of a gun by the wearer of the shirt or that the shirt's wearer was near someone else who was firing a gun.

The police performed swabs on the firearms they recovered from to test for DNA. The parties stipulated, in relevant part, that the DNA swabs taken from the grip of the .38 Special caliber revolver found in the back of the Impala contained a mixture of DNA from at least three individuals, and it was 19, 660 times more likely that co-defendant Davis was one of those three individuals than a random person. DNA swabs taken from the Glock Model 27 pistol contained a mixture of DNA from at least two individuals, and it was over one million times more likely to have come from Ebo-Wilson than from a random person.

Appellant and co-defendant Davis' cell phones contained videos and photographs depicting various firearms. Davis also made numerous posts on Facebook expressing his desire to get revenge for the death of Scott, that he intended to "grab bigger guns", "mask up", and "catch another body."

Co-defendant Davis testified that he, Appellant, and Ebo-Wilson attended a party in Norristown on August 8, 2017. Davis stated that after the three of them left the party and were walking down the street, someone called to them. Davis said that he saw a man pointing a gun at him. Davis could not identify Rosendary as that gunman. Davis testified that he and his companions ran away from the gunman, who opened fire. Davis stated that he then drew his gun and returned fire. Davis testified that Appellant and Ebo-Wilson were not involved in the shooting. Davis, Appellant, and Ebo-Wilson got into Appellant's Impala, and Appellant drove them away from the shooter. Davis said he, Appellant, and Ebo-Wilson then abandoned the car and fled on foot after police vehicles blocked their path. Davis claimed his comments on social media were references to the music he listens to. Appellant did not testify.

On November 2, 2018, the jury convicted Appellant of attempted first-degree murder, conspiracy to commit first degree murder, aggravated assault, conspiracy to commit aggravated assault, and PIC.[4]

On January 18, 2019, the trial court sentenced Appellant to concurrent terms of twelve-and-a-half to twenty-five years' imprisonment for attempted murder and conspiracy to commit murder. The trial court imposed no further penalty for Appellant's PIC conviction. The trial court determined that

Appellant's aggravated assault conviction merged with his attempted murder conviction and his conspiracy to commit aggravated assault conviction merged with the conspiracy to commit murder conviction.

Appellant filed a timely post-sentence motion arguing that the evidence was insufficient to sustain his convictions for conspiracy to commit murder, attempted murder, and PIC, among other issues. See Post-Sentence Mot., 1/28/19, at 3-4 (unpaginated). The trial court denied Appellant's post- sentence motion on June 10, 2019.

Appellant then timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed an opinion addressing Appellant's sufficiency of the evidence claims pursuant to Pa.R.A.P. 1925(a). See Trial Ct. Op., 10/24/19. This Court docketed that appeal at 1842 EDA 2019. On January 22, 2020, this Court dismissed that appeal because Appellant failed to file a brief.

The trial court explained the subsequent procedural history as follows:

[On January 24, 2020, t]he [trial] court received [pro se] correspondence from [Appellant] addressed to the Clerk of Courts asking whether [Appellant's] trial and appellate counsel, Francis Genovese, Esquire, had filed an appeal for this case. The [trial] court treated this correspondence as [Appellant's] [Post-Conviction Relief Act[5] (PCRA)] petition. On March 4, 2020, the [PCRA] court appointed Matthew Quigg, Esquire to represent [Appellant] and granted [Attorney Quigg] leave to file an amended PCRA petition or [a] Finley[fn3] letter. On July 17, 2020, [Appellant, through counsel, ] petitioned to reinstate his direct appeal rights nunc pro tunc pursuant to the Post-Conviction Relief Act. After an evidentiary hearing held on September 14, 2020, [Appellant's] appeal rights were reinstated nunc pro tunc. [Appellant] filed a new Notice of Appeal on October 9, 2020. [Appellant] filed a [Rule 1925(b)] concise statement of matters complained of on appeal [challenging the sufficiency of the evidence]. . . .
[fn3] Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988) [(en banc)].

Trial Ct. Op., 1/4/21, at 1-2 (some citations and footnotes omitted). The trial court's January 4, 2021 opinion adopted the analysis of its October 24, 2019 opinion addressing Appellant's sufficiency of the evidence claims. Id. at 2.

Appellant raises the following issue for our review:

Did the trial court err in denying Appellant's post-sentence motion for a judgment of acquittal on the charges of attempted murder, criminal conspiracy to commit murder, and possessing an instrument of crime?

Appellant's Brief at 4 (formatting altered).

Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence for all of his convictions. Id. at 7-17. Appellant argues the evidence presented at trial, viewed in the light most favorable to the Commonwealth, "established merely that Appellant was present at the scene of the crime and knew of its commission,...

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