Com. v. Lewis, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JESSE LEWIS, : No. 985 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, May 29, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0013110-2011
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 05, 2015
Jesse Lewis appeals from the judgment of sentence entered on
May 29, 2013, in the Court of Common Pleas of Allegheny County.
The facts, as aptly summarized by the trial court, are as follows.
Office[r] Matthew McCarthy testified that he
was on duty on March 17, 2011 when he was
dispatched to 255 East Ohio Street on a report of
four or five individuals fighting. While he was
en route, he heard two gunshots. Upon arrival, at
approximately 2:50 a.m., he observed the victim,
Lakisha Robinson [“the victim”], lying on the street,
surrounded by two females who were crying and
yelling. [The victim] was pronounced dead at the
scene shortly thereafter. Officer McCarthy also
encountered the second victim, Richard Edge, at the
scene. Edge had a bullet wound to his left elbow.
Edge initially refused medical attention and was
unwilling to identify his shooter.
Nicole Orwik, [the victim’s] best friend,
testified that on March 17, 2011, she and two friends
* Allen, J. did not participate in the consideration or decision of this case.
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([the victim] and Patrice “Trice” Hammond) went to
Peanutz, a local bar, at around 11:30 p.m. Orwik
stated that she saw two men that she knew in the
bar: Edge, whom she called “RJ,” and Appellant,
Jesse Lewis, whom she referred to as “Little Man.”
Orwik said that she had known Appellant for twelve
years and that he was friends with her baby’s father.
[The victim] and Orwik eventually left the bar and
returned to [the victim’s] apartment. A short time
later, [the victim] left the apartment to check on
Hammond. When [the victim] did not return after
ten to fifteen minutes, Orwik stepped out of [the
victim’s] dwelling and saw [the victim] fighting.
Orwik testified that [the victim] fought with
Sakisha Morant. . . Morant and Appellant have a
child together. Orwik broke up the fight but Morant
and [the victim] continued to argue. Orwik testified
that she then saw [the victim] walk up the sta[i]rs
toward them and heard a shot shortly thereafter.
Orwik attempted to leave the area with [the victim],
but [the victim] collapsed, at which point Orwik
became aware that [the victim] had been shot.
Footage from two surveillance cameras was
introduced as evidence. During Orwik’s testimony,
she identified Appellant on the video recording as
wearing a white shirt with stripes. She also pointed
out on the video Appellant’s extended hand holding
an object and testified that is where the gunfire
came from. Orwik testified that the individual seen
on the video running away and throwing a gun was
Appellant.
Richard Edge testified that he didn’t remember
seeing Appellant in the bar that night. Edge said he
tried to break up a fight outside of the bar between
Hammond and a woman named Lexie. [The victim]
and Morant entered the melee and while Edge was
trying to restore order, he heard two shots. After
Edge heard the first shot, he turned and ran but was
hit in the arm with the second shot as he was
running away. Edge testified that he did not see
who shot him. Edge said that the person in the
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video in the white muscle shirt (the same person
identified by Orwik) holding the gun shot him. Upon
further review of the video, Edge testified that the
same person who had shot him had jumped on his
back earlier during the fight. At the time, Edge
thought that the person on his back was a woman.
Edge pushed the person in the muscle shirt away, as
seen on the video. Both Edge and his brother
Demitrius Edge identified Appellant from a photo
array. Hammond also identified Appellant as the
individual in the white t-shirt.
Derrick Cabel testified that he did not see any
shots fired on March 17, 2011. However, he stated
that he gave a recorded statement to the police
contemporaneous to the incident describing what he
observed. Officer James Smith later testified he
interviewed Cabel and recorded his statement. In
the interview, Cabel stated that after he heard the
second shot, he looked over a wall he was hiding
behind and saw Appellant with a gun pointed at
Edge.
Sergeant Christina Davison responded to the
dispatch call of shots fired in the area. As she was
arriving at the scene, a short male in a white t-shirt
and dark pants ran directly in front of her vehicle
away from the area where the shots were fired.
Sergeant Davison identified Appellant as that
individual. She further stated that Appellant and the
individual in the video were consistent in stature and
clothing.
Officer Adam Nida testified that Appellant gave
him the name of Darryl Strong when he was later
arrested on an unrelated outstanding warrant.
Forensic pathologist Dr. Abdulrezak Shakir testified
that the cause of death of [the victim] was a gunshot
wound to the trunk and the manner of death was
classified as a homicide.
Trial court opinion, 4/7/14 at 3-6 (footnote omitted).
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Appellant was charged with one count each of criminal homicide,
criminal attempt (homicide), aggravated assault, person not to possess a
firearm, and carrying a loaded weapon. Appellant was also charged with
three counts of recklessly endangering another person (“REAP”); however,
two counts of REAP were later withdrawn. Pursuant to an oral motion by
defense counsel, Elbert Gray, Esq., the charge of possession of a firearm
was severed to be tried non-jury concurrently. A jury trial commenced on
February 4, 2013, and on February 28, 2013, appellant was found guilty of
all charges. Appellant was sentenced to life imprisonment for first-degree
murder with a consecutive period of 26 to 52 years on the remaining
charges. At the conclusion of the sentencing hearing, Attorney Gray orally
motioned to withdraw as counsel; the motion was granted and new counsel
was appointed.
Appellant’s post-sentence motions were denied on May 29, 2013. This
appeal followed. The following claims have been presented on appeal:
1. Whether there was insufficient evidence to
prove first-degree murder when the
Commonwealth failed to prove that there was
a specific intent to kill the victim?
2. Whether the trial court abused its discretion in
overruling an objection to the testimony of
Officer McCarthy concerning the speculative
reasoning of Richard Edge’s answers to the
officer’s questions?
3. Whether the non-jury trial was properly
conducted when Appellant never knowingly,
intelligently and voluntarily waived his right to
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a jury trial concerning the charge of persons
not to possess a firearm?
Appellant’s brief at 5.1
The first issue presented challenges the sufficiency of the evidence to
support the conviction of first-degree murder. Appellant argues the
Commonwealth failed to prove specific intent to kill. (Id. at 15.)
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for [that of] the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the
fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond
a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none
of the evidence.
1
Additional issues presented in appellant’s concise statement of matters
complained of on appeal have been abandoned.
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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa.Super. 2011)
(en banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-
806 (Pa.Super. 2008).
First-degree murder is an intentional killing, i.e., a “willful, deliberate
and premeditated killing.” 18 Pa.C.S.A. § 2502(a) and (d). Specific intent
to kill as well as malice can be inferred from the use of a deadly weapon
upon a vital part of the victim’s body. Commonwealth v. Briggs, 12 A.3d
291, 342-343 (Pa. 2011). Pursuant to the doctrine of transferred intent, the
intent to murder may be transferred where the person actually killed is not
the intended victim. 18 Pa.C.S.A. § 303(b)(1).
Reviewing the record in the light most favorable to the
Commonwealth, as opposed to the facts appellant argues in his brief, we
find the Commonwealth clearly established specific intent. Appellant was
identified in the fight on a surveillance video. Appellant was thrown off of
Edge’s back and seen using his hand to mimic firing a shot. Appellant then
briefly left the area, returning moments later with a firearm. Witnesses
identified appellant as pointing a gun at Edge, approaching Edge, and
shooting at him. The victim, who was in the immediate vicinity, was shot in
the abdomen, a vital part of her body, and this wound caused her death.
Briggs, supra at 307. The evidence establishes appellant’s specific intent
to kill. Commonwealth v. Devine, 750 A.2d 899 (Pa.Super. 2000)
(Devine’s errant bullet killed a 15-year-old boy as he conducted a shootout
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with two men he admitted to wanting to kill); Commonwealth v. Jones,
610 A.2d 931 (Pa. 1992) (Jones and two companions missed intended victim
with 20 shots, but were liable after killing two individuals, including a
seven-year-old boy and injuring six others). Thus, the evidence supports
the jury’s finding that appellant formed a specific intent to kill and, thus, is
guilty of first-degree murder.
Next, appellant claims that the trial court erred by allowing
Officer Matthew McCarthy to testify that Edge would not tell the officer who
had shot him. (Appellant’s brief at 23.) We agree with the Commonwealth
that the officer’s response that Edge “just wouldn’t tell [him]” who shot him
is not necessarily an opinion as to whether Edge knew the identity of the
shooter. (Commonwealth’s brief at 12.) Such a statement “does not
necessarily imply that Edge knew or [did not] know [the shooter’s] identity.”
(Id.) As the trial court observed, it was established during
cross-examination that Officer McCarthy was not testifying that Edge did not
actually refuse to identify the shooter, but that it was the officer’s
impression that Edge was reluctant to cooperate with the police. (Trial court
opinion, 4/7/14 at 8.) Moreover, such error was harmless as appellant does
not dispute that he shot Edge, and both Edge and his brother identified
appellant as the shooter from a photo array. See Commonwealth v.
Atkinson, 987 A.2d 743, 751-752 (Pa.Super. 2009) (harmless error exists
when “the error did not prejudice the defendant or the prejudice was
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de minimus”). Thus, no prejudice resulted from the officer’s statement on
direct examination.
In his final issue, appellant contends that he did not validly waive his
right to a jury, and therefore, the court was without jurisdiction to determine
his guilt of persons not to possess a firearm. (Appellant’s brief at 26.) This
claim is waived as appellant did not present this challenge during trial.
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). See Commonwealth v.
O’Donnell, 740 A.2d 198, 207 (Pa. 1999) (only under capital relaxed wavier
policy may the issue of an inadequate jury trial colloquy be reached for the
first time on appeal); Commonwealth v. Gribble, 863 A.2d 455, 469 (Pa.
2004) (“The Commonwealth correctly notes that neither O’Donnell nor
appellant objected to the wavier colloquy at the penalty hearing, and that
each therefore waived any direct challenge to its sufficiency . . . The
Commonwealth also correctly notes that O’Donnell prevailed upon her
waived claim on direct appeal only because she enjoyed the benefits of the
then-available ‘relaxed waiver’ rule.”).
Judgment of sentence affirmed.
Allen, J. did not participate in the consideration or decision of this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2015
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