The opinion
J-S47024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD GRIFFITH,
Appellant No. 2768 EDA 2013
Appeal from the Judgment of Sentence of April 19, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004784-2011
BEFORE: MUNDY, OLSON AND WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 06, 2014
Appellant, Donald Griffith, appeals from the judgment of sentence
entered on April 19, 2013, following his jury trial convictions for first-degree
murder, possession of an instrument of crime (PIC), and carrying a firearm
without a license.1 Upon consideration, we affirm.
The trial court summarized the facts of this case as follows:
On January 14, 2011 Officers [Michael] McDonough and
[William] McCrane were flagged down by [] Jamil Ransome
at the intersection of Devereaux and Frankford Avenues
following an apparent traffic accident [with Appellant].
[Ransome] and his friend Andrew Taylor, travelling in a
white Chevy Malibu, and [Appellant], driving a light blue
Oldsmobile station wagon, collided when [Appellant] made
an illegal left turn. Although everyone involved was upset
by the accident, Officers McDonough and McCrane, en route
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1
18 Pa.C.S.A. §§ 2502(a), 907(a), and 6106(a)(1), respectively.
J-S47024-14
to another accident, instructed the parties to calm down
before leaving the area. After the accident, an obviously
agitated [Ransome] called his mother. After a short
called out to her son. As she held the line, she heard a
number of additional shots and screams but [Ransome]
never returned to the line.
Arriving home from work at approximately the same
time, Ana Sousa observed [Appellant] and [Ransome]
speaking to police officers as she parked her car. As she
retrieved a marker from a snow covered parking space, she
watched as [Appellant] and [Ransome] spoke to police
officers before the officers left the area. After the officers
left, the two men continued to loudly argue with one
another. Just a few seconds later, as she emerged from her
vehicle, Ms. Sousa heard gunshots coming from the area
where [Appellant] and [Ransome] stood. Ms. Sousa
watched as [Ransome] attempted to run away, and stood,
frozen in terror, as [Appellant] continued to fire his weapon
as he pursued [Ransome].
Kimberly Tadlock, driving home from work, stopped at
the traffic light at the intersection of Devereaux and
Frankford Avenues. Ms. Tadlock observed an argument
between [Appellant] and [Ransome] in the street just ahead
of where her vehicle was stopped. Describing [Ransome] as
a younger and thinner man than [Appellant], Ms. Tadlock
watched as [Appellant] berated [Ransome] and angrily
pointed in his face. [Appellant] then reached into his pocket
and [Ransome] immediately began to run away.
[Ransome] slipped on ice and fell as he tried to run away,
and [Appellant] fired his
direction. After his fall, [Ransome] jumped up and
continued to run away and [Appellant] followed, firing his
weapon four (4) additional times. [Appellant] fired his
weapon at [Ransome] as the victim attempted to flee, and
also fired at the white vehicle in which [Ransome] had been
riding. [Appellant] then returned to his older model
Oldsmobile station wagon and fled the scene without
activating his headlights.
After the shooting, Ms. Tadlock saw a marked police car
proceeding down Frankford Avenue and [she] flagged down
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the officer. As she pulled her vehicle forward to get the
Ms. Tadlock stated that as [Appellant] pursued and fired at
[Ransome] she was able to
alone in a marked police car on Harbison Avenue headed
toward Frankford Avenue, Officer [Sharon] Pawlowski heard
approximately [three to four] gunshots in the area. After
hearing the shots, Office[r] Pawlowski was flagged down by
a visibly shaken Kimberly Tadlock who described the
shooting she had just witnessed. Officers McDonough and
McCrane then heard a radio call of a shooting in the area.
Returning immediately to the scene, the officers observed
sive body halfway in the backseat of
the white vehicle shared with Mr. Taylor. [Ransome] was
immediately taken to Temple University Hospital and was
pronounced dead from a single gunshot wound to his
abdomen shortly thereafter.
Responding to a radio call of a blue Oldsmobile wanted
in connection with a homicide, Sergeant [James] Wagner
proceeded toward the 6200 block of Jackson Street. When
he arrived in the area, he observed [Appellant] at the
corner of Devereaux and Gillespie Streets as [Appellant]
flattened his body against a wall to avoid detection by the
passing police vehicle. Although [Appellant] avoided
detection by the passing officer, Sergeant Wagner
approached from the opposite direction and detained
[Appellant]. After giving a statement to officers on the
scene, Ms. Tadlock was transported a short distance away
to where [Appellant] was being detained. At the time of the
identification, Ms. Tadlock stated that she recognized
[Appellant] as the shooter, but that he had swapped his
leather and fur coat for a black and grey checkered coat and
recovered less than a mile from the scene of the shooting.
Following this identification, [Appellant] was arrested
without incident.
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Crime Scene Investigator [Gregory] Yatcilla arrived at
the scene along with Officers Flade, Davis, and Richardson[2]
at approximately 9:59 p.m. While at the scene, Officer
Yatcilla recovered eight (8) fired cartridge casings. Four (4)
were recovered from behind a truck parked on Devereaux
Avenue, and four (4) were recovered from the center of the
street on Frankford Avenue. A search warrant was
cers
recovered a loaded Glock 9 mm semi-automatic handgun,
an empty magazine for the same weapon, a black leather
coat with a tan fur collar and trim, a brown cap and a
home had gunshot residue in the chamber, indicating that it
was recently fired. Likewise, ballistics evidence proved that
the fired cartridge casings recovered from the scene of the
killed by a single gunshot which entered his abdomen and
pierced his small intestine and aorta before lodging in his
spinal column. Further, the weapon matched the caliber
back.
Trial Court Opinion, 1/17/2014, at 1-5 (record citations omitted).
Procedurally, the case progressed as follows:
[Appellant] was tried by a jury commencing on April 15,
2013. On April 19, 2013, the jury found [Appellant] guilty
of [the aforementioned charges]. On that same day,
[Appellant] was sentenced to life imprisonment at a state
correctional facility without the possibility of parole.
[Appellant] filed a post-trial motion on April 23, 2013 which
was denied by [the trial court] on September 13, 2013.
[Appellant] filed a notice of appeal on September 23, 2013,
and was ordered to file a statement of [errors] complained
of on appeal on September 24, 2013. Said statement was
filed on October 15, 2013. [The trial court issued an
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2
d and they
were not witnesses at trial.
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opinion pursuant to Pa.R.A.P. 1925(a) on January 17,
2014.]
Id. at 1 (superfluous capitalization omitted).
On appeal, Appellant presents the following issues3 for our review:
I. Is [Appellant] entitled to a new trial as a result of the
the testimony of Police Officer Murphy concerning
statements Andrew Taylor had made to him
concerning the shooting incident?
II. Is [Appellant] entitled to a new trial as the result of
testimony with his prior conviction for theft by
receiving stolen property?
III. Is [Appellant] entitled to an arrest of judgment with
respect to his convictions for murder of the first
degree, a violation of the Uniform Firearms Act and
possessing instruments of crime since the evidence is
insufficient to sustain the verdicts of guilt as the
Commonwealth failed to sustain its burden of proving
IV. Is [Appellant] entitled to a new trial with respect to
his convictions for murder of the first degree, a
violation of the Uniform Firearms Act and possessing
instruments of crime since the verdicts of guilt are
against the weight of the evidence?
rulings:
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3
We have reordered the issues for ease of discussion.
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On a challenge to a trial court's evidentiary ruling, our
standard of review is one of deference.
The admissibility of evidence is solely within the discretion
of the trial court and will be reversed only if the trial court
has abused its discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that
is manifestly unreasonable, or the result of bias, prejudice,
ill-will or partiality, as shown by the evidence of record.
Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012)
(citation omitted).
In the first issue, Appellant claims he is entitled to a new trial because
fficer
Murphy concerning statements Andrew Taylor made to him concerning the
specifically, Appellant asserts:
At the scene of the crime a struggle ensued forcing Officer
Murphy to place Taylor in the back of his police vehicle.
While so confined, Taylor told Officer Murphy that
attempted to walk away from the incident, but
that he and the victim confronted him. The trial court,
however, ruled these statements inadmissible.
Id.
were not offered for the truth of the matter asserted or are admissible under
the state of mind, declarations against penal interest, excited utterance,
and/or present sense impression exceptions to the hearsay rule pursuant to
Pa.R.E. 803(3), 804(b)(3), 803(2), and 803(1), respectively. Id. at 38-39.
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In the alternative, Appellant argues that constitutional due process of law
requires the admission of the statements at issue. Id. at 40-45.
Initially upon review, Appellant did not raise various aspects of his
current claim before the trial court and we are constrained to find those
contentions waived. First, we note that, at trial, Appellant did not argue
that the present sense impression exception to the hearsay rule was
applicable. See N.T., 4/17/2013, at 65-69, 75-
review a legal theory in support of that claim unless that particular legal
Commonwealth v. Rush, 959
A.2d 945, 949 (Pa. Super. 2008); see also
raised in the lower court are waived and cannot be raised for the first time
challenge for the first time on appeal and we are constrained to find it
waived. An appellate court should not address constitutional issues
unnecessarily or when they are not properly presented and preserved in the
Commonwealth v. Berryman, 649
A.2d
Id.; see also Pa.R.A.P. 302(a). For all of
the foregoing reasons, Appellant has waived these two aspects of his claim.
evidentiary issue, at trial both Appellant and the Commonwealth
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acknowledged that Andrew Taylor was an available witness. N.T.,
4/17/2013, at 65-69, 75-78. Appellant submitted the following proffer:
Officer Murphy, Badge 5222, was on patrol and arrived
at the scene of this shooting at Frankford and Devereaux
Avenue; the decedent had been taken away by the patrol
wagon.
On his arrival he saw other officers trying to control the
black male who we know is Andrew Taylor.
Mr. Taylor, during the course of this struggle, was
Officer Murphy that the male, referring to [Appellant], tried
to walk away and [Taylor] and [the victim] tried to confront
him.
He stated the male pulled out a gun and shot about eight
times. The witness[, Mr. Taylor,] stated that he ran when
he heard the gunshots.
Judge, we seek to introduce that statement through
Officer Murphy. Although it is hearsay, we would argue to
the [c]ourt that it is not being introduced for the truth of
the matter asserted but to show the state of mind of the
declarant.
Id. at 65-66.
f [the proffered
statement] being a state of mind exception or an excited utterance despite
Id.
against interest of both Mr. Taylor and the decedent, the statement that
they were going Id. at 76. After argument on the
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issue, Appellant informed the trial court that he would not call Mr. Taylor as
a witness.4 Id. at 78.
declarant while testifying at trial or hearing, offered in evidence to prove the
Commonwealth v. Gray, 867 A.2d 560,
570 (Pa. Super. 2005), citing per se
inadmissible in this Commonwealth, except as provided in the Pennsylvania
Rules of Evidence[,] by other rules prescribed by the Pennsylvania Supreme
Id.
Appellant has implicated the following hearsay exceptions:
(2) Excited Utterance. A statement relating to a startling
event or condition, made while the declarant was under the
stress of excitement that it caused.
Comment: This rule is identical to F.R.E. 803(2).
This exception has a more narrow base than the
exception for a present sense impression, because it
requires an event or condition that is startling.
However, it is broader in scope because an excited
utterance (1) need not describe or explain the
startling event or condition; it need only relate to it,
and (2) need not be made contemporaneously with,
or immediately after, the startling event. It is
sufficient if the stress of excitement created by the
startling event or condition persists as a substantial
factor in provoking the utterance.
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4
The record confirms that defense counsel intentionally refused to call
Taylor as a witness. See
upside and downside, [Appellant and defense counsel] were in agreement
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There is no set time interval following a startling
event or condition after which an utterance relating
to it will be ineligible for exception to the hearsay
rule as an excited utterance. In Commonwealth v.
Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978), the
court explained:
The declaration need not be strictly
contemporaneous with the existing cause, nor is
there a definite and fixed time limit ... Rather, each
case must be judged on its own facts, and a lapse of
time of several hours has not negated the
time lapse, is whether, at the time the statement is
made, the nervous excitement continues to dominate
while the reflective processes remain in abeyance.
(3) Then-Existing Mental, Emotional, or Physical
Condition. A statement of the declarant's then-existing
state of mind (such as motive, intent or plan) or emotional,
sensory, or physical condition (such as mental feeling, pain,
or bodily health), but not including a statement of memory
or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarant's will.
Comment: This rule is identical to F.R.E. 803(3).
Pa.R.E. 803(2), (3).
Moreover, Appellant relies upon the following additional hearsay
exception:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position
would have made only if the person believed it to be
true because, when made, it was so contrary to the
declarant's proprietary or pecuniary interest or had
so great a tendency to invalidate the declarant's
claim against someone else or to expose the
declarant to civil or criminal liability; and
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(B) is supported by corroborating circumstances that
clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the
declarant to criminal liability.
Comment: This rule is identical to F.R.E. 804(b)(3).
Pa.R.E. 804(3).
Here, the trial court determined:
According to [Appellant], Taylor made a statement in which
he indicated that he and decedent confronted [Appellant]
when he attempted to walk away after the incident, and
following said confrontation, [Appellant] began firing his
weapon. At the outset, it must be noted that [Appellant]
has fundamentally failed to demonstrate how this testimony
told the officers that he and decedent were verbally
confronted by [Appellant] and [Appellant] opened fire in
response. However, after argument on the record regarding
this issue, [Appellant] was given full opportunity to call
Taylor, an available witness, to the stand for the purpose of
eliciting this statement to police. [Appellant] made the
tactical decision not to do so, and instead renewed his
request to allow said statement from Police Officer Murphy,
requiring dissection of several layers of hearsay, when
Taylor was an available witness at trial. Although within the
purview of trial strategy, neither Andrew Taylor nor Officer
Murphy were called to testify at trial, either in the
-in-
Andrew Taylor for the purpose of eliciting his statement to
police is fatal to this claim.
Trial Court Opinion, 1/17/2014, at 14-15 (record citations omitted).
alleged statement did not come within either the state of mind or statement
against interest exceptions to the hearsay rule. The proffered statement
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intent, or plan. Taylor would not have been subject to criminal or civil
prosecution after making the alleged statement.
exception was most apt. The statement was made after the shooting and
purported hearsay statement to police to show that Ransome verbally
confronted Appellant. However, there was no dispute that the parties
argued before Appellant commenced firing upon Ransome. At trial, as
discussed in detail infra, Kimberly Tadlock Green and Ana Sousa testified as
such. See N.T., 4/16/2013, at 80-85, 127-128, 136. Thus, the proffered
evidence was merely duplicative of other testimony. We discern no abuse
investigating officers.
Furthermore, such evidence, even if it qualified as an excited utterance
-
defense claim because, as discussed at length infra, two eyewitnesses
testified that while Appellant and the victim were engaged in a verbal
altercation, Appellant reached for a firearm, advanced on the unarmed
victim, and shot at him multiple times. Thus, any error in not admitting the
proffered testimony is harmless. See Commonwealth v. Stetler, 95 A.3d
may be harmless where the properly
admitted evidence of guilt is so overwhelming and the prejudicial effect of
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the error is so insignificant by comparison that it is clear beyond a
).
In the second issue for our review, Appellant argues that the trial court
erred by denying his motion in limine crimen
falsi
He avers that the conviction was over 10 years old at the time of trial and,
therefore, the trial court abused its discretion under Pa.R.E. 609(b). Id. at
46. Appellant contends that evidence of the prior crime cast doubt on his
credibility, so he was forced to take the stand in his own defense. Id. at 47.
He further claims that merely because his prior conviction was elicited on
Id.
for
an abuse of discretion. Hernandez, 39 A.3d at 411. Relevant herein,
Pa.R.E. 609 provides:
(a) In General. For the purpose of attacking the credibility
of any witness, evidence that the witness has been
convicted of a crime, whether by verdict or by plea of guilty
or nolo contendere, must be admitted if it involved
dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed
since the witness's conviction or release from confinement
for it, whichever is later. Evidence of the conviction is
admissible only if:
(1) its probative value substantially outweighs its
prejudicial effect; and
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(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party
has a fair opportunity to contest its use.
Pa.R.E. 609.
Initially, as noted by the trial court, 10 years had not elapsed between
More specifically, the tria
stolen property conviction resulted from a guilty plea in December 2002 and
the shooting occurred in January 2011, less than 10 years apart. Trial Court
Opinion, 1/17/2014, at 16. This Court has previously recognized that the
under Rule 609. Commonwealth v. Harris, 884 A.2d 920, 926 (Pa. Super.
-
his prior crimen falsi had not expired when he committed the instant murder
of crimen falsi evidence was mandatory under Pa.R.E. 609.
Moreover, in determining whether to admit evidence of a prior crimen
falsi conviction, the trial court should consider the following factors:
1) the degree to which the commission of the prior offense
reflects upon the veracity of the defendant-witness; 2) the
likelihood, in view of the nature and extent of the prior
record, that it would have a greater tendency to smear the
character of the defendant and suggest a propensity to
commit the crime for which he stands charged, rather than
provide a legitimate reason for discrediting him as an
untruthful person; 3) the age and circumstances of the
defendant; 4) the strength of the prosecution's case and the
prosecution's need to resort to this evidence as compared
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with the availability to the defense of other witnesses
through which its version of the events surrounding the
incident can be presented; and 5) the existence of
alternative means of attacking the defendant's credibility.
Commonwealth v. Palo, 2011 PA Super 136, 24 A.3d 1050, 1056 (Pa.
Super. 2011).
Here, the trial court further weighed the abovementioned factors,
-defense claim, there were
Id.
Based upon our standard of review, we discern no abuse of discretion.
receiving stolen property conviction against its prejudicial value. The record
four and five above, because Appellant asserted self-defense and, thus, the
case turned on credibility. Moreover, under factors one and two above,
Appellant's prior conviction does not suggest a propensity to commit murder,
the charge for which he was currently being tried. Accordingly, we find no
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In his third issue presented, Appellant claims that the evidence was
insufficient to support his convictions for PIC5 and first-degree murder. With
regard to his murder conviction, Appellant argues:
[T]he evidence is insufficient to sustain the verdict of
guilt since the Commonwealth
guilt beyond a reasonable doubt. The Commonwealth failed
-
reasonably believed that deadly force was necessary to
protect himself against death or serious bodily injury.
Additionally, the evidence did not sustain the conviction
specific intent to kill and did not act with malice,
premeditation or ill will as required by 18 Pa.C.S.A.
§ -degree
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5
This Court has reiterated that when challenging the sufficiency of the
the elemen
to preserve the issue for appeal. Commonwealth v. Gibbs, 981 A.2d 274,
particular importance in cases where, as here, [] Appellant was convicted of
multiple crimes each of which contains numerous elements that the
Id. In his
1925(b) statement sub judice, Appellant fails to specify which element of PIC
the Commonwealth failed to prove. Hence, we are constrained to find this
aspect of his claim waived. Moreover, Appellant has not presented any legal
argument pertaining to his PIC conviction on appeal and has waived his
claim for this additional reason. See Commonwealth v. Rahman, 75 A.3d
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
wai
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murder since he did not intend to kill the victim or
unreasonable belief voluntary manslaughter since he acted
in mistaken self-defense.
* * *
protect himself from the danger of death or serious bodily
injury at the hands of the victim and Andrew Taylor in the
incident during which the victim was shot. The victim and
which the victim and Taylor sought revenge for
accident and had to be calmed down by police officers who
happened upon the scene of the accident.
bly believed that he was in danger
of death or great bodily injury at the time of the shooting.
injury and had to take immediate action. He was left with
no choice other than to shoot the victim since he was under
attack from the victim and Taylor. He may not be faulted
for so doing since his actions were reasonable under the
circumstances presented to him.
He was not the initial aggressor. The victim and Taylor
were the initial aggressors. There was no safe avenue of
highway where movements of the parties were hampered
by weather conditions. He could have been pursued by the
victim and Taylor.
murder or mistaken belief voluntary manslaughter.
-26.
Our Supreme Court has set forth the standard of review and relevant
legal principles as follows:
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When reviewing the sufficiency of the evidence, we view
the evidence in the light most favorable to the
Commonwealth as the verdict winner to determine if the
evidence and all reasonable inferences derived therefrom
are sufficient to establish all elements of the offense beyond
a reasonable doubt. To sustain a conviction for murder of
the first-degree, the Commonwealth must prove that: (1) a
human being was unlawfully killed; (2) the person accused
is responsible for the killing; and (3) the accused acted with
specific intent to kill. 18 Pa.C.S. § 2502(d). Specific intent
may be inferred from the use of a deadly weapon on a vital
part of the victim's body. Also, we are cognizant that the
period of reflection required for premeditation to establish
the specific intent to kill may be very brief; in fact the
design to kill can be formulated in a fraction of a second.
Premeditation and deliberation exist whenever the assailant
possesses the conscious purpose to bring about death.
Further, the trier of fact, in passing upon the credibility of
the witnesses, is free to believe all, part, or none of the
evidence.
* * *
When the defendant introduces evidence of self-
defense, the Commonwealth bears the burden of disproving
such a defense beyond a reasonable doubt. The
Commonwealth cannot sustain its burden of proof solely on
the factfinder's disbelief of the defendant's testimony. The
disbelief of a denial does not, taken alone, afford affirmative
proof that the denied fact existed so as to satisfy a
proponent's burden of proving that fact.
To elucidate the Commonwealth's specific burden in
disproving Appellant's claim of self-defense, we look to
Section 505 states, in relevant part:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the
person. The use of force upon or toward another
person is justifiable when the actor believes that
such force is immediately necessary for the purpose
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of protecting himself against the use of unlawful
force by such other person on the present occasion.
(b) Limitations on justifying necessity for use
of force.
* * *
(2) The use of deadly force is not justifiable under
this section unless the actor believes that such force
is necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse
compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity
of using such force with complete safety by
retreating or by surrendering possession of a thing to
a person asserting a claim of right thereto or by
complying with a demand that he abstain from any
18 Pa.C.S.A § 505(a), (b)(2)(i), (ii).
Commonwealth v. Rivera, 983 A.2d 1211, 1220-1223 (Pa. 2009) (internal
case citations, quotations, footnotes, and brackets omitted).
Sub judice, the trial court concluded there was sufficient evidence to
-defense claim, opining:
Eyewitnesses Ana Desousa and Kimberly Tadlock each
stated that she observed [Appellant] angrily point and yell
[Appellant] reach into his pocket, decedent immediately ran
away from [Appellant]. [Appellant] then pursued decedent,
firing two (2) shots at decedent before he fell, then chasing
him and firing an additional four (4) shots after decedent
returned to his feet and continued to run away. Based upon
the facts presented at trial, a jury could rationally conclude
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that [Appellant] did not have a reasonable basis that he was
in imminent danger of great bodily harm.
* * *
Notably, despite his contentions at trial, [Appellant] never
mentioned to police that decedent allegedly threatened his
life.
* * *
In this case, the evidence was more than sufficient to
single gunshot wound which entered his abdomen.
Likewise, there was sufficient evidence to prove that
[Appellant] was the man who fired the fatal shot. In fact,
[Appellant] did not deny firing the fatal gunshot, but instead
that the jury chose to disbelieve [Appel
and determined that his actions illustrated his specific intent
to kill.
Trial Court Opinion, 1/17/2014, at 9, 11-12.
assessment. Kimberly Tadlock Green testified that she saw the verbal
altercation between Appellant and Ransome that ensued after police left the
scene of the traffic accident. N.T., 4/16/2013, at 80-81. Tadlock Green
and that Appella Id. at 82.
Id. Tadlock Green further testified that
Id. at 83. Tadlock Green stated that Appellant was
approximately five feet away from the victim when she heard two gunshots
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and witnessed the victim slip on ice. Id. at 83-85. She described Appellant
as Id. at 100. Thereafter, Tadlock Green testified that
she saw the victim get up and run and that she heard four more shots and
then saw the victim lying in the street. Id. at 86-87, 111-113.
Ana Sousa testified that she did not personally witness the altercation,
because a truck obscured her view. Id. at 127. She heard a loud argument
followed by two gunshots. Id. at 127-128, 136. Sousa saw someone
running down the street with a gun, but could not identify the person. Id. at
129. She then heard four more gunshots. Id. at 129-130.
Police recovered eight bullet casings from the scene of the crime. Id.
at 30-31. The Commonwealth called firearm examiner, Police Officer
Norman DeFields at trial. He testified that he examined eight cartridge
casings recovered from the scene of the crime, as well as a bullet fragment
.9 millimeter Luger Glock firearm manufactured by Speer. N.T., 4/17/2013,
at 31-33, 38.
9-
to the firearm identification unit. N.T., 4/16/2013, at 60. Officer DeFields
it was operational. Id. at 35. Officer DeFields concluded that the eight
e,
were fired from the same firearm that was submitted for forensic
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examination. Id. at 42-43. The police did not recover a weapon from the
victim, Andrew Taylor or the vehicle in which they were driving. N.T.,
4/17/2013, at 19. Dr. Marlin Osborne, medical examiner, opined that the
victim died of a single gunshot wound to the abdomen. Id. at 55.
Based on the foregoing, and based upon our standard of review, we
first-degree m
intent to kill. Moreover, the Commonwealth met its burden of disproving
-defense claim beyond a reasonable doubt. Appellant was
the initial aggressor. Appellant did not retreat and, as the evidence
established, chased the victim. Appellant did not use only as much force as
necessary for self-preservation. The victim was unarmed. No eyewitness
saw anyone other than Appellant with a weapon during the incident.
Appellant fired two shots at an unarmed victim who slipped on ice. The
victim got up and ran, but Appellant continued pursuing the victim, firing
additional shots. Viewing all of the evidence in the light most favorable to
the Commonwealth, we conclude that that the trial court did not err in
Finally, Appellant argues that his convictions were against the weight
-36. We review Appellant's claim
under the following standard of review:
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J-S47024-14
A verdict is not contrary to the weight of the evidence
because of a conflict in testimony or because the reviewing
court on the same facts might have arrived at a different
conclusion than the fact[-]finder. Rather, a new trial is
warranted only when the jury's verdict is so contrary to the
evidence that it shocks one's sense of justice and the award
of a new trial is imperative so that right may be given
another opportunity to prevail. Where, as here, the judge
who presided at trial 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. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).
Based upon our prior discussion of the evidence adduced at trial, we
do not find that the trial court palpably abused its discretion in denying
claim lacks merit.
Judgment of sentence affirmed.
Judge Mundy joins this memorandum.
Judge Wecht concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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