Com. v. Daye, C.

J-A06035-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

COURDE DAYE :

:

Appellant : No. 172 WDA 2023

Appeal from the Judgment of Sentence Entered September 7, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0001723-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

COURDE DAYE :

:

Appellant : No. 173 WDA 2023

Appeal from the Judgment of Sentence Entered September 7, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0000492-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

COURDE DAYE :

:

Appellant : No. 174 WDA 2023

Appeal from the Judgment of Sentence Entered September 7, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0000496-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

J-A06035-24

:

v. :

:

:

COURDE DAYE :

:

Appellant : No. 175 WDA 2023

Appeal from the Judgment of Sentence Entered September 7, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0001066-2019

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY BECK, J.: FILED: March 21, 2024

Courde Daye (“Daye”) appeals from the judgement of sentence entered

by the Allegheny County Court of Common Pleas following his convictions of

first-degree murder, aggravated assault, discharging a firearm into an

occupied structure, and persons not to possess a firearm.1 On appeal, Daye

challenges the sufficiency of the evidence with respect to his first-degree

murder and persons not to possess a firearm convictions. Because we find no

merit to either of Daye’s sufficiency claims, we affirm.

The charges in this case arose from incidents that occurred on November

19 and 20, 2018. The trial court summarized the factual history of this case

as follows:

On the evening of November 20, 2018, at approximately

8:07 p.m., [Daye] entered [Thomas Cole’s (“Cole”)] [c]ellphone

[s]tore in North Braddock and fired at least eight shots inside,

injuring James Dent [(“Dent”)]. Dent was an 85-year-old man

who suffered a gunshot wound to his spine in that barrage of

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1 18 Pa.C.S. §§ 2502(a), 2702(a)(1), 2707.1(a), 6105(a)(1).

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shots, which paralyzed him and ultimately led to his death on May

9, 2019. [N.T., 6/1/2022 – 6/8/2022, at] 70, 83-84, 87-90, 96,

98-99, 103-04, 117-18, 135, 145, 150, 152, 243-44, 414-15,

424).

[Dent] was a longtime friend of [Cole.] [Id.] at 164, 190.

The men had known each other for 20 years. [Id.] [Dent] came

to [Cole]’s store every day, and he would assist [Cole] with

various tasks, which included taking [Cole]’s son to football and

baseball practice. [Id.] at 164, 185.

On the day of [Dent]’s shooting, [Cole] was with his

girlfriend in the back living room area of the store when he heard

multiple gunshots coming from the front of the store, where

[Dent] was located. [Id.] at 165-66, 186-87. [Cole] initially tried

to take cover. When he was finally able to make his way to the

front after the gunfire ceased, he saw [Dent] “laying on the

ground” on his stomach. [Id.] at 167-68, 188-89, 208-09. A

witness named Edward May was outside of the store immediately

before the shooting, and he recalled hearing someone inside

screaming “oh G[-]d please don’t” before shots were fired. [Id.]

at 231-32, 235.

As he laid on the floor awaiting medical transport, [Dent]

told [Cole] that he had been shot in his back, and he told [Cole]

that “Daee Daee shot me.” [Id.] at 168-69, 174, 191-92, 209.

“Daee Daee” is the nickname by which they both knew [Daye],

and [Cole] had personally known [Daye] for nearly a decade.

[Id.] at 154, 177. [Cole] immediately called 911 and waited with

[Dent] while the ambulance arrived, treated and transported him.

[Id.] at 118, 169. [Cole] followed [Dent] to UPMC Mercy Hospital,

where he spoke with homicide detectives. [Id.] at 170, 243, 247-

48.

At the hospital later that evening, detectives conducted a

recorded interview with [Dent], who was in critical condition.

[Id.] at 243-44, 255, 305. [Dent] was in substantial pain and

repeatedly expressed serious concern about whether he was going

to survive. [Id.] at 243-45, 248. [Dent] told the detectives that

he saw the shooter’s face and that the shooter had an assault rifle.

[Id.] at 246-47. For the second time that evening, [Dent]

identified the shooter as “Daee Daee.” [Id.] at 246-47. [Dent]

knew [Daye] because they were both regulars in [Cole]’s store

and had been there together at the same time on many occasions.

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[Id.] at 175. The detectives presented [Dent] with a photo array

that same evening, and [Dent] positively identified [Daye]’s

picture without hesitation as he lay paralyzed in his hospital bed.

[Id.] at 253-59.

After seeing the detectives at the hospital, [Cole] agreed to

speak with them further at the Allegheny County Police

Headquarters. [Id.] at 170-71, 192, 249. [Cole] gave a recorded

interview where he told the detectives about another shooting that

had happened at his store just the day before and how [Daye] had

shot him. [Id.] at 107, 110, 113, 155, 172, 249, 293. [Cole]

provided consent for them to access and review the video system

that had been taken from his store on the night of his own

shooting, though subsequent investigation into that video system

did not reveal anything of value [because] the machine

malfunctioned. [Id.] at 250, 268.

At trial, [Cole] explained that, prior to the shootings, [Daye]

would regularly come to his store to “hangout.” [Id.] at 154, 156-

57. [Cole] testified that on November 19, 2018, the day before

[Dent]’s shooting, [Cole] “was selling weed” and [Daye] was

sitting in his store with him “like any other day.” [Id.] at. 156,

178. The pair were “talking” and “listening to music” when [Cole]

left to use the restroom. Upon returning, [Cole] found himself in

the crosshairs of [Daye]’s pistol. [Cole] told him, “come on, man.

Put the gun down. We’re better than this.” [Id.] at 158. [Cole]

testified that he did not know [Daye]’s motive or why he was

pointing a firearm at him. [Id.] at 157-58.

[Cole] testified that he “looked around” and then “jumped

at [Daye].” [Id.] at 158, 182. He tried to disarm [Daye], but,

after a brief struggle over the firearm, the gun went off, and [Cole]

was shot multiple times in his left leg. [Id.] at 158-60, 162.

[Daye] left the store immediately after the shots rang out, and

[Cole] went to the store next door and asked them to call 911.

[Id.] at 160-61. [Cole] underwent surgery to remove the bullets

from his leg, and he left the hospital that same night. [Id.] at

162.

Police responded to the November 19, 2018, shooting

incident involving [Cole], but there were “no witnesses or victims

on scene” when they arrived. [Id.] at 111, 128. After securing a

search warrant, officers discovered a large amount of marijuana

in the kitchen area of the store, as well as a .9-millimeter shell

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casing and blood droplets. [Id.] at 111-12, 134. [Cole] did not

identify [Daye] as his shooter on the day that he was shot. He

testified that he withheld that information because of the “code[,]”

which strongly dissuades people from speaking to the police.

[Id.] at 107, 114, 163, 184, 202-03. However, [Cole] did tell

[Dent] that [Daye] had shot him, and [Dent] relayed that

information to the detectives while they were recording his

statements at the hospital on the night of November 20, 2018.

[Id.] at 246-47.

If it was not for [Dent]’s shooting, [Cole] “would have never

spoken” to the police about the details of his own shooting

incident. [Id.] at 163. However, after [Dent] told him that

[Daye] was responsible for his injuries, [Cole] changed his mind

and decided to cooperate with police and identify his shooter

“because an 85[-]year-old man got shot in my store, and he was

my best friend.” [Id.] at 172.

* * *

Sadly, after the shooting, [Dent] “showed a continuous

decline in health without a significant recovery” from his gunshot

wound. [Id.] at 87. [Dent] suffered for six (6) months before his

paraplegia caused several different infections[, including lung,

bladder, and ulcerative infections,] which, in turn, caused the

sepsis that ultimately took his life. [Id.] at 80, 84, 89-90.

Trial Court Opinion, 5/4/2023, at 4-11 (footnotes omitted; citations modified).

Daye was arrested and charged with numerous offenses arising out of

both shootings. On June 8, 2022, a jury found Daye guilty of first-degree

murder at docket number 1723-2020, relating to Dent’s shooting. The jury

also found Daye guilty of aggravated assault and discharge of a firearm into

an occupied structure at docket number 2019-1066, relating to Cole’s

shooting. The trial court held a simultaneous bench trial at docket numbers

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2022-0492 and 2022-04962 on Daye’s persons not to possess a firearm

charges and found him guilty on all counts.

On September 7, 2022, the trial court sentenced Daye to life in prison

without the possibility of parole for his first-degree murder conviction.3 Daye

filed a timely post-sentence motion, which the trial court denied on January

11, 2023. Daye timely appealed.

Daye presents the following issues for our review:

1. Was the evidence insufficient to prove persons not to possess

firearms beyond a reasonable doubt insofar as it was based on

incompetent identification testimony by the complainant?

2. Was the evidence insufficient to prove first-degree murder

beyond a reasonable doubt because the Commonwealth’s

evidence that Daye’s alleged conduct caused the decedent’s

paraplegia, which might have caused three medical conditions,

one or more of which might have caused sepsis, which caused

the decedent’s death six months after the fact was so

attenuated and uncertain as to require the jury to speculate as

to causation?

Daye’s Brief at 6.

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2 Daye’s persons not to possess firearms charges were severed from the 2019

cases.

3 Additionally, the trial court sentenced Daye to forty-two to eighty-four-

months in prison for his discharge of a firearm into an occupied structure

conviction, which the trial court ran concurrently with his sentence for first-

degree murder. The trial court also sentenced him to eighteen to thirty-six

months in prison for one of his persons not to possess a firearms convictions

from which he was immediately paroled based on time served, and another

twenty-seven to fifty-six months of incarceration on the other persons not to

possess a firearm conviction that was run consecutive to his sentence for first-

degree murder.

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For his first issue, Daye argues the evidence was insufficient to support

his persons not to possess a firearm conviction from November 19, 2018—the

date Cole was shot in the leg. Daye’s Brief at 22-26. Specifically, Daye asserts

that the Commonwealth failed to prove Daye was in possession of a firearm

on that date. Id. at 24-26. Daye argues that the only evidence that he

possessed a firearm was Cole’s testimony, which he maintains we should

disregard because it is unreliable. Id. at 25. In support of his argument that

Cole’s testimony is unreliable, Daye points to Cole’s history as a drug dealer,

his failure to tell the police who shot him until after Dent was shot the next

day, and the fact that Cole received favorable treatment on federal charges

pending against him and immunity in exchange for his testimony against

Daye. Id.

Although Daye purports to challenge the sufficiency of the evidence of

his persons not to possess a firearm conviction, his arguments attacking Cole’s

credibility conflate the concepts of evidentiary sufficiency and weight. As our

Court has repeatedly explained, however, “sufficiency and weight claims are

distinct.” Commonwealth v. Rivera, 238 A.3d 482, 495 (Pa. Super. 2020).

A claim challenging the sufficiency of the evidence is a

question of law. Evidence will be deemed sufficient to support the

verdict when it establishes each material element of the crime

charged and the commission thereof by the accused, beyond a

reasonable doubt. Where the evidence offered to support the

verdict is in contradiction to the physical facts, in contravention to

human experience and the laws of nature, then the evidence is

insufficient as a matter of law. When reviewing a sufficiency claim

the court is required to view the evidence in the light most

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favorable to the verdict winner giving the prosecution the benefit

of all reasonable inferences to be drawn from the evidence.

A motion for new trial on the grounds that the verdict is

contrary to the weight of the evidence concedes that there is

sufficient evidence to sustain the verdict. Thus, the trial court is

under no obligation to view the evidence in the light most

favorable to the verdict winner. An allegation that the verdict is

against the weight of the evidence is addressed to the discretion

of the trial court. 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. A trial judge

must do more than reassess the credibility of the witnesses and

allege that he would not have assented to the verdict if he were a

juror. Trial judges, in reviewing a claim that the verdict is against

the weight of the evidence do not sit as the thirteenth juror.

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 495 (quotation marks and citation omitted),

This Court has explained that a sufficiency of the evidence review does

not include an assessment of witness credibility. Commonwealth v. Juray,

275 A.3d 1037, 1043 (Pa. Super. 2022). “Instead, such arguments are more

properly characterized as challenges to weight of evidence.” Id. (citations

omitted). Additionally, it is well settled that an “appellant’s challenge to the

sufficiency of the evidence must fail, where an appellant phrases an issue as

a challenge to the sufficiency of the evidence, but the argument that the

appellant provides goes to the weight of the evidence.” Id. (quotation marks

and citations omitted).

Here, while we acknowledge that Cole’s testimony is the only evidence

that Daye was in possession of a firearm on the date of Cole’s shooting, it is

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nonetheless evidence of possession. See Trial Court Opinion, 5/4/2023, at

36-37 (finding Cole’s testimony to be credible). As this Court has held, “the

uncorroborated testimony of a single witness is sufficient to sustain a

conviction for a criminal offense[.]” Commonwealth v. Johnson, 180 A.3d

474, 481 (Pa. Super. 2018).

Daye’s arguments attacking Cole’s credibility are more properly

construed as a challenge to the weight, not the sufficiency of the evidence.

See id.; Rivera, 238 A.3d at 495. Daye did not preserve a challenge to the

weight of the evidence of his persons not to possess a firearm conviction

because he did not raise it prior to sentencing or in his post-sentence motion.

See Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (“A

weight of the evidence claim must be preserved either in a post-sentence

motion, by a written motion before sentencing, or orally prior to sentencing.”).

For this reason, Daye’s first issue must fail.

For his second issue, Daye challenges the sufficiency of the evidence to

support his first-degree murder conviction. Daye’s Brief at 26-39.

Specifically, Daye argues that the Commonwealth failed to prove that his

shooting of Dent was the ultimate cause of Dent’s death and that the chain of

causation—from the bullet wound, to paraplegia, to three different infections,

to sepsis, and then death—was so attenuated that it required the jury to

speculate regarding the true cause of Dent’s death. Id. Daye notes that the

Commonwealth presented evidence that Dent suffered from three different

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infections: lung, bladder, and ulcerative. Id. at 29-30. Daye contends,

however, that lung infections are common among people at Dent’s advanced

age and, consequently, there was no evidence linking Dent’s paraplegia to his

lung infection, and therefore his death. Id. at 29-30, 33-34. With respect to

his bladder and ulcerative infections, Daye argues that the Commonwealth

failed to establish that these infections were not preventable, and that Dent

therefore could have taken actions that would have prevented his death. Id.

at 31-35.

Our Court’s standard of review of a challenge to the sufficiency of the

evidence is well settled:

In reviewing a sufficiency of the evidence claim, we must

determine whether the evidence admitted at trial, as well as all

reasonable inferences drawn therefrom, when viewed in the light

most favorable to the verdict winner, are sufficient to support all

elements of the offense. Additionally, we may not reweigh the

evidence or substitute our own judgment for that of the fact

finder. The evidence may be entirely circumstantial as long as it

links the accused to the crime beyond a reasonable doubt.

Juray, 275 A.3d at 1042 (quotation marks and citations omitted).

Our Supreme Court has set forth the elements of first-degree murder

as follows: “(1) a human being was unlawfully killed; (2) the defendant was

responsible for the killing; and (3) the defendant acted with malice and a

specific intent to kill.” Commonwealth v. Martin, 101 A.3d 706, 718 (Pa.

2014) (citing 18 Pa.C.S. § 2502(a)). “To establish criminal causation, the

Commonwealth must prove that the defendant’s conduct was so directly and

substantially linked to the actual result as to give rise to the imposition of

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criminal liability.” Commonwealth v. Leaner, 202 A.3d 749, 768 (Pa. Super.

2019) (quotation marks and citation omitted).

Our Court has established a two-part test for determining criminal

causation. Id. First, the defendant’s conduct must be a precursor, “but for

which the result in question would not have occurred.” Id. Importantly, “[a]

victim’s death cannot be entirely attributable to other factors; rather, there

must exist a causal connection between the conduct and the result of conduct;

and causal connection requires something more than mere coincidence as to

time and place.” Id. (quotation marks and citation omitted). With respect to

the first part of the test, the defendant’s conduct does not need to be the only

cause of the victim’s death to establish a causal connection. Id. at 769. An

individual is criminally responsible where the “conduct was a direct and

substantial factor in producing the death even though other factors combined

with that conduct to achieve the result.” Id. (quotation marks and citation

omitted).

Second, the consequences of the defendant’s actions “cannot be so

extraordinarily remote or attenuated that it would be unfair to hold the

defendant criminally responsible.” Id. (quotation marks and citation omitted).

This second part of the test is satisfied “when the victim’s death is the natural

or foreseeable consequence of the defendant’s actions.” Id. (quotation marks

and citation omitted). “Where the fatal result was an unnatural or obscure

consequence of the defendant’s actions, justice would prevent us from

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allowing the result to have an impact upon a finding of the defendant’s guilt.”

Id. (quotation marks and citation omitted).

At Daye’s trial, Willis Ashton Ellis, M.D. (“Dr. Ellis”), the medical

examiner that performed Dent’s autopsy, testified as an expert regarding the

cause of Dent’s death. N.T., 6/1/2022 – 6/8/2022, at 80-106. Dr. Ellis

testified that Dent died of sepsis, “which is a blood infection,” and that the

source of Dent’s sepsis was three underlying infections—lung, bladder, and

ulcerative infections—each of which he linked to Dent’s paraplegia. Id. at 88-

89. Dr. Ellis testified that each one of these infections could have caused the

sepsis that led to Dent’s death. Id. at 90.

Regarding Dent’s lung infection, Dr. Ellis explained that it is “very

common” for paraplegics to get lung infections because they have difficulty

coughing, and when a person cannot cough, they “almost always get a lung

infection.” Id. at 90-91. Dr. Ellis stated that it is “well[]documented … that

paraplegia leads to pneumonia.” Id. at 90.

With respect to Dent’s bladder infection, Dr. Ellis testified that

paraplegics often cannot urinate because their legs do not function properly,

and they tend to need catheters to help them urinate. Id. at 92-93. Dr. Ellis

stated that “[t]hose catheters very frequently cause infection.” Id. at 93. In

this case, Dr. Ellis explained that he found the same class of bacteria in both

Dent’s bladder and his blood. Id.

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Regarding Dent’s ulcerative infection, Dr. Ellis explained that they are

common among paraplegics and occur when a person develops ulcers,

typically on their back, which result from the pressure of the persons weight

closing off their blood flow because they are unable to move or feel the need

to move to open the blood flow. Id. at 95–96. Dr. Ellis testified that Dent

had seven such ulcers, the largest of which was “[b]igger than a softball, and

smaller than cantaloupe.” Id. at 96. Dr. Ellis testified that Dent’s ulcers were

so severe that they went “through the skin and the tissue beneath the skin

into things like muscle and bone[,]” making the degradation of his bones

visible from the outside. Id. at 97. Dr. Ellis explained that the exposure of

interior bodily tissue or bone to the air often results in infection and that

“infections that involve bone are more likely to cause sepsis because it gives

bacteria an easy way to get to the blood.” Id. at 97-98.

Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, there is ample evidence to conclude that Dent’s

shooting, which caused his paraplegia and subsequent infections, caused his

death. Dr. Ellis’ testimony provided a direct line from the shooting to the

paraplegia to the infections to the sepsis; there is nothing about Dr. Ellis’

testimony that would require a jury to speculate about Dent’s cause of death.

Dr. Ellis testified that each of Dent’s lung, bladder, and ulcerative infections

were common among individuals who suffered from paraplegia, and each

could have caused the sepsis that led to his death. Thus, the evidence was

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sufficient to conclude that Daye shooting Dent was a direct and substantial

factor in Dent’s death. See Leaner, 202 A.3d at 768-69.

Dent’s death after he was shot by Daye was not so extraordinarily

remote or attenuated that it would be unfair to hold Daye criminally

responsible for what Dr. Ellis described as Dent’s continuous decline in health

without a significant recovery from the gunshot wound. See id. at 769 (noting

that medical intervention keeping the victim alive for 124 days after the

assault does not establish that appellant’s action was so remote or attenuated

that it would be unfair to hold him criminally responsible for the death).

Lastly, we find Daye’s contention that Dent was somehow responsible for his

own death because he failed to properly care for himself after he became

paraplegic to be completely meritless; as this Court has long recognized,

“contributory negligence of the victim is not a defense in a criminal action.”

Commonwealth v. Long, 624 A.2d 200, 204 (Pa. Super. 1993).

In light of the foregoing, we conclude that the evidence was sufficient

to conclude that Daye caused Dent’s death, and therefore, sufficient to sustain

his conviction of first-degree murder. Accordingly, Daye’s second issue does

not entitle him to relief.

Judgment of sentence affirmed.

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3/21/2024

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