Com. v. Wong, K. ( 2019 )

J-S08038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIMMY X. WONG :
:
Appellant : No. 3884 EDA 2017
Appeal from the Judgment of Sentence August 18, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008960-2012,
CP-51-CR-0008961-2012
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 07, 2019
Appellant, Kimmy X. Wong, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County following his
conviction by a jury on two counts of attempted murder in the first degree,
two counts of aggravated assault, two counts of robbery, one count of firearms
not to be carried without a license, one count of firearms not to be carried on
the streets of Philadelphia, and one count of possession of an instrument of
crime, as well as his conviction in a non-jury trial on the charge of possession
of a firearm prohibited.1 After a careful review, we affirm.
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1 18 Pa.C.S.A. §§ 901(a), 2702(a), 3701, 6106(a)(1), 6108, 907(a), and
6105(a)(1), respectively.
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* Former Justice specially assigned to the Superior Court.
J-S08038-19
The relevant facts and procedural history are as follows: On June 13,
2012, Appellant was arrested, and he was charged with various crimes at two
separate lower court docket numbers. For the charges docketed at CP-51-
CR-0008960-2012, the Commonwealth listed Phillip Holland as the victim, and
for the charges docketed at CP-51-CR-0008961-2012, the Commonwealth
listed Jerel Livingston as the victim.
On June 1, 2017, Appellant, who was represented by counsel, proceeded
to a jury trial. At trial, Philadelphia Police Officer Kenneth Sherard testified
that, on June 13, 2012, at approximately 5:20 p.m., he was on patrol and
received a radio call of shots fired near an apartment complex in the 8400
block of Lindbergh Boulevard. N.T., 6/1/17, at 48. Subsequently, he received
another radio call for a shooting at the 8400 block of Lyons Avenue near the
Pepper Middle School. Id. at 49-50. At this point, the police were not sure
how, or if, the two shootings were related. Id.
Officer Sherard testified that, upon arrival at the Lindbergh Boulevard
location, he saw a black male, with an apparent gunshot wound to his
forehead, lying on the sidewalk outside of an apartment building. Id. at 53.
Officer Sherard secured the location and observed several shell casings on the
ground. Id. at 57. The deceased shooting victim was later identified as Terrell
Brown. Id.
Philadelphia Police Officer Torin Saunders testified that, on the day in
question, he was on duty and received a radio transmission directing him to
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the 8400 block of Lindbergh Boulevard. Id. at 79-80. He and his partner
traveled immediately to the location, gathered information, and then, based
on subsequent “flash” information2 regarding the description of a suspect,
began surveying the surrounding area. Id. Officer Saunders testified that,
as he and his partner were driving around the Penrose Plaza shopping center,
Officer Saunders noticed Appellant, who fit the description provided in the
flash information, talking on a cell phone. Id. at 82. Appellant looked at the
police car, “stepped a few feet back to a big brick pillar[,] and [stood] behind
it.” Id. Officer Saunders informed his partner, who was driving, that he saw
a suspect matching the description standing behind the pillar. Id. At this
point, Appellant “peeked out” and “right real quick” entered the Jamaican Way
store. Id. at 82, 86.
Officer Saunders testified his partner made a U-turn, the officers parked
the police vehicle away from the store, and they entered the store with their
guns drawn. Id. at 83. As soon as Officer Saunders entered the store, he
saw Appellant leaning against the counter and talking on a cell phone. Id.
Appellant stood up and took a step back, but he then walked towards the
officers. Id. The officers instructed Appellant to show them his hands and lie
on the ground. Id. A quick pat-down of Appellant’s person revealed no gun;
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2 “[F]lash information is based on a report from the initial officers to
investigate the scene of a crime and is broadcast to other police units in the
district.” Commonwealth v. Jackson, 519 A.2d 427, 431 (Pa.Super. 1986).
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however, a store employee directed the officers to a nearby trash can where
they discovered a handgun inside. Id. at 90-91. Officer Saunders testified
he was later present when complainants positively identified Appellant. Id. at
91.
Jerel Livingston testified that, on the day in question, he and his teenage
stepson, Phillip Holland, arrived at the Pepper Middle School parking lot at
approximately 4:50 p.m. to practice driving. N.T., 6/2/17, at 7-8. After about
thirteen minutes of his stepson driving, Mr. Livingston and his stepson
switched seats so that Mr. Livingston could drive and demonstrate how to
parallel park. Id. at 9. After Mr. Livingston demonstrated the parking
strategy “a couple of times,” he began putting the car into park so that his
stepson could again resume driving when a man approached and stood about
ten feet away. Id. at 9-10. Mr. Livingston positively identified the man in
court as Appellant. Id. at 10.
Mr. Livingston testified Appellant said, “Give me my money, mother
fucker.” Id. Mr. Livingston testified he and his stepson were “in shock” and
did not move. Id. Appellant raised a silver gun towards the direction of Mr.
Livingston and his stepson, and he again said, “Give me my money, mother
fucker.” Id. at 11. Mr. Livingston and his stepson again did not move and, in
response, Appellant demanded money a third time, as well as fired a shot at
them. Id. Mr. Livingston and his stepson ducked down, and Mr. Livingston
stepped on the gas driving without raising his head for about four seconds.
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Id. As he sped out of the parking lot, he looked in his rear view mirror and
saw Appellant running towards the car. Id. He heard “two more shots [] ring
out.” Id. at 12.
Mr. Livingston testified he drove down the street to a red light, and he
observed police vehicles with activated lights and sirens pass by, so he tried
to flag down a police officer. Id. However, the police apparently did not see
him, so he followed the police vehicles for approximately three quarters of a
mile at which point he arrived at the 8400 block of Lindbergh Boulevard. Id.
When he exited his car, he saw a body lying on the sidewalk. Id. Mr.
Livingston approached the police and informed them that he and his stepson
had just been fired at while in the school parking lot. Id. at 13. Mr. Livingston
provide the police with a description of the shooter. Id. at 15.
Approximately twenty minutes later, officers transported Mr. Livingston
and his stepson to the Penrose Plaza shopping center where they positively
identified Appellant, who the police had in custody, as the man who had shot
at them in the school parking lot. Id. at 21-24. Mr. Livingston provided a
statement to the police, and at Appellant’s preliminary hearing on July 30,
2012, Mr. Livingston positively identified Appellant as the man who had shot
at him and his stepson at the school. Id. at 27-29. Mr. Livingston testified
that, prior to the day of the shooting on June 13, 2012, he had never seen
Appellant and he was not acquainted with him. Id. at 31.
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Phillip Holland, who was Mr. Livingston’s stepson, testified he was at the
Pepper Middle School parking lot with Mr. Livingston on June 13, 2012, in
order to practice driving. N.T., 6/6/17, at 5. He substantially confirmed Mr.
Livingston’s testimony as to the fact that a man approached them, demanded
money, pointed a gun at them, and then fired the gun at them. Id. at 8-9.
Mr. Holland also confirmed that, on June 13, 2012, he and Mr. Livingston were
transported to the Jamaican Way store, where they both positively identified
Appellant as the man who had shot at them. Id. at 12. When asked whether
he recognized Appellant in court, which was four years after the crime, Mr.
Holland said, “No, I don’t know. I honestly don’t remember his face from that
day.” Id.
Shawna Jordan testified that, on June 13, 2012, she was working at the
Jamaican Way store in the Penrose Plaza when, at approximately 5:30 p.m.,
Appellant walked quickly into the store. N.T., 6/2/17, at 33. As Appellant
walked past the store’s trash can, which was located by the front door, Ms.
Jordan heard “a thump.” Id. at 35. She clarified that it sounded as if
Appellant put something in the trash can. Id. at 36. Ms. Jordan testified
Appellant was “hyped” and asked her for chicken. Id. When police officers
came into the store instructing him to put up his hands, Appellant complied.
Id. She informed the police that she “heard a thump” when Appellant walked
past the trash can. Id.
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Philadelphia Police Detective Brian Peters, who was assigned to the
homicide unit, testified that, on the evening of June 13, 2012, he was called
to the murder scene of Mr. Brown at the 8400 block of Lindbergh Boulevard.
Id. at 54. Witnesses at the scene informed Detective Peters there had been
a chase between two people whereby one person chased another. Specifically,
Detective Peters testified witnesses informed him that “[t]wo people were
running, they crossed over Lindbergh [Boulevard] and they had gone in the
area where the Pepper Middle School was [located], and then [on to] an
apartment complex.” Id. at 55. Detective Peters explained the chase was
confirmed by various 9-1-1 calls, a cell phone found on the path, a strike mark
to one of the signs inside the apartment complex, and reports from two
children who observed the chase. Id. at 74.
Detective Peters traveled to the Jamaican Way store and arrived at 8:40
p.m. Id. at 59. He obtained the owner’s consent to search the property, and
he seized a handgun from the store’s trash can. Id. at 64. Detective Peters
testified the gun was operable, contained live cartridges, had been fired, and
was cocked and primed to fire again. Id. at 67. Detective Peters took a
statement from Ms. Jordan and he learned the store had working security
cameras. Id. at 69-71.
Philadelphia Police Detective James Dunlap, who was assigned to the
homicide unit’s digital imaging video response team, confirmed he evaluated
the Jamaican Way’s security system and retrieved video. N.T., 6/5/17, at 4-
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13. The video compilation from June 13, 2012, was shown to the jury. Id.
at 16.
Philadelphia Police Officer Horace Lopez testified he was at the scene of
Mr. Brown’s murder when a white sedan pulled up and two males exited. Id.
at 23. One of the males, later identified as Mr. Livingston, informed the
detective a shooting had just occurred at the Pepper Middle School, and he
provided a description of the shooter. Id. at 24. Detective Lopez looked at
Mr. Livingston’s sedan and noticed bullet holes on the driver’s side door and
rear quarter panel. Id. He informed fellow police officers via radio of the
description of the suspect. Id. at 24-25. Detective Lopez confirmed he
transported Mr. Livingston and his stepson to the Jamaica Way restaurant
where they both positively identified Appellant as the man who had shot at
them in the school parking lot. Id. at 30-33.
Philadelphia Police Officer Gary Guaraldo, who was assigned to the crime
scene unit, testified that, the day after the shooting, he went to the Pepper
Middle School and found three fired cartridge casings in the parking lot. Id.
at 80. He examined the bullet holes in Mr. Livingston’s sedan, and he
explained to the jury that the bullets were fired into the sedan from the outside
of the vehicle. Id. at 88-107.
Philadelphia Police Detective Francis Kane, who was assigned to the
homicide unit, testified he interviewed Mr. Livingston and his stepson at the
homicide unit at approximately 8:10 p.m. on June 13, 2012. Id. at 126-27.
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During the interview, Mr. Livingston drew a diagram of the Pepper Middle
School parking lot and marked the area where Appellant was standing when
he shot at Mr. Livingston and his stepson. Id. at 129. At trial, the diagram
was introduced as evidence. Id.
Detective Kane testified the handgun seized from the Jamaican Way
store was a .9mm semi-automatic handgun, which based on ballistics was the
same caliber as the weapon used by Appellant in shooting at Mr. Livingston
and his stepson. Id. at 136. However, Detective Kane testified a .40 caliber
handgun was used in the murder of Mr. Brown. Id. at 137. He noted a .40
caliber fired cartridge casing was found at the scene of Mr. Brown’s murder.
Id. He testified “there’s no way the .9mm that [Appellant] had could have
been used to shoot the .40 caliber ammunition [that was used to kill Mr.
Brown].” Id. Accordingly, while the police ruled out Appellant as the shooter
in the death of Mr. Brown, Appellant was charged with various crimes in
connection with the shooting at Mr. Livingston and his stepson in the Pepper
Middle School parking lot. Id. at 137-139. Detective Kane testified three
separate guns were involved with regard to the shooting death of Mr. Brown
and the shooting at the Pepper Middle School. Id. at 138.
The parties stipulated that if Police Officers Siranni and Jaconi were
called to testify they would confirm one firearm, a .40 caliber Glock 23, was
recovered from the murder scene of Mr. Brown. Id. at 170. Further, they
would testify the only fired cartridge cases found at the murder scene were
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.40 caliber casings. Id. at 171. The parties also stipulated that if Police Officer
Andrejczak were to testify he would indicate the firearm recovered by
Detective Peters from the trash can at the Jamaican Way store was a .9mm
Ruger, model P85, which was operable and loaded with three Wolf full melt
jacket cartridges. N.T., 6/6/17, at 24.
Philadelphia Police Officer Robert Stott, who was qualified as an expert
in ballistics comparison and firearm identification, testified he examined
evidence from this case, as well as the murder case of Mr. Brown. Id. at 27-
28. He indicated the three .9mm fired cartridge casings, which the police
collected from the parking lot of the Pepper Middle School, were all fired from
the same gun. Id. at 31. Officer Stott cross-checked the three .9mm
cartridge cases and concluded they were fired from the .9mm Ruger handgun,
which the police found at the Jamaican Way. Id. He further testified a bullet
specimen and bullet jacket fragments seized from Mr. Livingston’s car after
the Pepper Middle School shooting indicated they were fired from the .9mm
Ruger handgun seized from the Jamaican Way. Id. at 33, 36.
However, Officer Stott testified Mr. Brown was killed with a .40 caliber
handgun. Id. He indicated the seven .40 caliber fired cartridge casings that
were found at the homicide scene were all fired from the same .40 caliber
Ruger. Id. He testified only one firearm (a .40 caliber Ruger) was fired at
Mr. Brown’s homicide scene, and he opined the firearm used in Mr. Brown’s
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homicide was a different firearm than the one used in the shooting at the
Pepper Middle School. Id. at 53.
The Commonwealth entered into evidence a certificate of non-licensure,
which indicated that Appellant did not have a valid or lawfully issued license
to carry a firearm in Pennsylvania. Id. at 62.
Appellant testified in his own defense. Specifically, Appellant testified
that, on June 13, 2012, at around 5:00 p.m., he drove to the 8400 block of
Lindbergh Boulevard with a friend, Vernon McDonald. Id. at 75. Appellant
admitted he and Mr. McDonald were both carrying firearms and they were in
the area so that Mr. McDonald could purchase drugs. Id. at 76. Appellant
indicated he lent Mr. McDonald money for the purchase. Id.
Appellant testified he exited the car to make a phone call while Jamal
Gregory and Mr. Brown entered the car to talk with Mr. McDonald. Id. at 76-
77. Appellant indicated that, at some point, all of the other men exited the
car and “everybody started pulling guns out, shots fired, robbed me, chaos,
there [were] kids, people outside, and everybody running. And at the same
time right after that happened, I see one of the guys and I go chasing after
him.” Id. at 77-78. Appellant testified he began chasing Mr. Gregory through
the apartment complex and towards the Pepper Middle School. Id. at 80.
Appellant indicated he thought Mr. Gregory entered the vehicle in the
Pepper Middle School parking lot, so he began yelling that he wanted his
money back. Id. He denied that he ran with or had his gun in his hand;
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however, he admitted that, when the driver of the vehicle bent down, he
thought the driver was going to sit back up with a gun, so Appellant began
firing his gun. Id. at 80-81. Appellant admitted he then ran to the Penrose
Plaza shopping center. Id. at 81.
On cross-examination, when presented with 9-1-1 calls, Appellant
admitted various callers reported they saw Appellant holding a handgun as he
chased Mr. Gregory. Id. at 99.
At the conclusion of all evidence, the jury convicted Appellant of the
crimes indicated supra in connection with the shooting at the Pepper Middle
School, and immediately following the jury’s verdict, Appellant agreed to a
non-jury trial on the charge of possession of a firearm prohibited. The trial
court convicted Appellant of the charge, and on August 18, 2017, Appellant
was sentenced to an aggregate of forty-five years to ninety years in prison.
Appellant did not file post-sentence motions, but Appellant filed a single,
timely notice of appeal.3 All Pa.R.A.P. 1925 requirements have been met.
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3 We note Appellant’s notice of appeal was docketed on September 25, 2017;
however, the record reveals that Appellant handed it to prison authorities on
August 30, 2017. Accordingly, pursuant to the prisoner mailbox rule, we deem
Appellant’s notice of appeal to be timely. See Pa.R.A.P. 121(a).
Further, we note that Appellant filed a single notice of appeal listing both
lower court docket numbers. Our Supreme Court has held that “where a single
order resolves issues arising on more than one docket, separate notices of
appeal must be filed for each case.” Commonwealth v. Walker, ___ Pa.
___, 185 A.3d 969, 971 (2018). However, the Court in Walker declined to
apply the rule to the case before it, because to do so would run “contrary to
decades of case law from [the Pennsylvania Supreme Court] and the
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On appeal, Appellant presents the following issues in his “Statement of
the Questions Involved”:
A. Was the evidence insufficient to sustain guilty verdicts for
attempted murder and aggravated assault, as there was
insufficient evidence proving Appellant had the criminal specific
intent to kill the complaining witnesses or to cause them
serious bodily injury at the time of the shooting, as Appellant
reasonably believed he was in immediate danger of death or
serious bodily injury?
B. Was the evidence insufficient to sustain the guilty verdict for
robbery as Appellant did not have the specific intent to threaten
or put the complainants in fear of serious bodily injury during
the course of a theft?
C. Was the evidence insufficient to sustain the guilty verdict for
[possession of an instrument of crime] as although Appellant
illegally possessed the firearm, he did not possess it with the
intent to employ it criminally and only discharged his firearm
after reasonably believing he was in immediate danger of death
or serious bodily injury?
Appellant’s Brief at 7.
Initially, we note that when considering a challenge to the sufficiency of
the evidence, the standard we apply is as follows:
[W]hether 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-
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intermediate appellate courts that, while disapproving of the practice of failing
to file multiple appeals, seldom quashed appeals as a result.” Id. Although
the Court instructed that in all future cases, a failure to file a notice of appeal
for each lower court docket will result in quashal of the appeal, Appellant’s
notice of appeal was filed prior to the Walker ruling. Accordingly, Walker is
not controlling in the instant appeal, and we decline to quash Appellant’s
appeal.
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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.
Commonwealth v. Johnson, 192 A.3d 1149, 1155 (Pa.Super. 2018)
(citation omitted).
In his first claim, Appellant alleges the evidence was insufficient to
sustain his convictions for either attempted murder or aggravated assault as
to Mr. Livingston and Mr. Holland. Specifically, Appellant claims he was acting
in self-defense when he discharged his weapon at the Pepper Middle School,
and he did not have the specific intent to kill or cause serious bodily injury.
He contends the evidence reveals he shot at Mr. Livingston and Mr. Holland
because he reasonably thought one of them was a drug dealer who had just
robbed him, and he believed one or both of them were going to shoot at him.
Thus, he contends the use of force was justified since he reasonably believed
he was in danger of death or serious bodily injury.
Appellant relies on the justification statute set forth in our Crimes Code
that permits the “use of force upon or toward another person…when the actor
believes that such force is immediately necessary for the purpose of protecting
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himself against the use of unlawful force[.]” 18 Pa.C.S.A. § 505(a). In
Commonwealth v. Torres, 564 Pa. 219, 766 A.2d 342 (2001), our Supreme
Court explained:
The use of force against a person is justified when the actor
believes that such force is immediately necessary for the purpose
of protecting himself against the use of unlawful force by the other
person. See 18 Pa.C.S. § 505(a). When a defendant raises the
issue of self-defense, the Commonwealth bears the burden to
disprove such a defense beyond a reasonable doubt. While there
is no burden on a defendant to prove the claim, before the defense
is properly at issue at trial, there must be some evidence, from
whatever source, to justify a finding of self-defense. If there is
any evidence that will support the claim, then the issue is properly
before the fact finder.
Id. at 345 (some citations omitted).
To disprove a self-defense claim, the Commonwealth is required to
prove at least one of the following: “1) the accused did not reasonably believe
that he was in danger of death or serious bodily injury; or 2) the accused
provoked or continued the use of force; or 3) the accused had a duty to retreat
and the retreat was possible with complete safety.” Commonwealth v.
Hammond, 953 A.2d 544, 559 (Pa.Super. 2008).
Under the Crimes Code, “[a] person commits an attempt when, with
intent to commit a specific crime, he does any act which constitutes a
substantial step toward the commission of that crime.” 18 Pa.C.S.A. § 901(a).
“A person may be convicted of attempted murder ‘if he takes a substantial
step toward the commission of a killing with the specific intent in mind to
commit such an act.’” Commonwealth v. Dale, 836 A.2d 150, 153
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(Pa.Super. 2003) (citations omitted). “The substantial step test broadens the
scope of attempt liability by concentrating on the acts the defendant has done
and does not any longer focus on the acts remaining to be done before the
actual commission of the crime.” In re R.D., 44 A.3d 657, 678 (Pa.Super.
2012).
Here, Appellant was convicted of attempted murder in the first degree.
“The mens rea required for first-degree murder, specific intent to kill, may be
established solely from circumstantial evidence.” Commonwealth v. Schoff,
911 A.2d 147, 160 (Pa.Super. 2006). “The law permits the fact finder to infer
that one intends the natural and probable consequences of his acts.”
Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008). “The
offense of attempt with intent to kill is completed by the discharging of a
firearm at a person with intent to kill, despite the fortuitous circumstances
that no injury is suffered.” Commonwealth v. Mapp, 335 A.2d 779, 781
(Pa.Super. 1975).
Under Pennsylvania law, “a person is guilty of aggravated assault if
he…attempts to cause serious bodily injury to another, or causes such injury
intentionally, knowingly[,] or recklessly under circumstances manifesting
extreme indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1).
“Serious bodily injury” is defined as “[b]odily injury which creates a substantial
risk of death or which causes serious permanent disfigurement, or protracted
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loss or impairment of the function of any bodily member or organ.” 18
Pa.C.S.A. § 2301.
“In order to sustain a conviction for aggravated assault, the
Commonwealth does not have to prove that serious bodily injury was actually
inflicted but rather that the Appellant acted with the specific intent to cause
such injury.” Commonwealth v. Holley, 945 A.2d 241, 247 (Pa.Super.
2008) (citation omitted). “A person acts intentionally with respect to a
material aspect of an offense when…it is his conscious object to engage in
conduct of that nature or to cause such a result[.]” 18 Pa.C.S.A. §
302(b)(1)(i). “As intent is a subjective frame of mind, it is of necessity difficult
of direct proof.” Commonwealth v. Matthew, 589 Pa. 487, 909 A.2d 1254,
1257 (2006) (citation omitted)). “The intent to cause serious bodily injury
may be proven by direct or circumstantial evidence.” Id.In the case sub judice, we conclude the Commonwealth sufficiently
established Appellant had the requisite intent for attempted murder in the first
degree and aggravated assault as to Mr. Livingston and Mr. Holland. For
instance, the evidence reveals that, as Mr. Livingston and Mr. Holland sat in
the car in a school parking lot, Appellant demanded money, fired a shot in
their direction from twelve feet away, and fired additional shots as the victims
fled in their car. See Holley, supra (finding evidence sufficient to sustain
convictions for attempted murder and aggravated assault where the victim
testified the defendant fired a shot at her).
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In concluding the Commonwealth adequately disproved Appellant’s
claim of self-defense, the trial court noted Appellant was not free from fault in
provoking the matter, and in fact, Appellant was the aggressor in the school
parking lot. Trial Court Opinion, filed 6/25/18, at 16. Also, as the trial court
noted, the Commonwealth proved Appellant had a duty and opportunity to
retreat from the school parking lot. Id. at 17. “It is by sheer luck, and the
quick reflexes of [Mr.] Livingston, that neither [he nor his stepson] were hurt
or killed.” Id. We find no merit to Appellant’s first claim.4
In his next claim, Appellant contends the evidence was insufficient to
sustain his conviction for robbery as to Mr. Livingston and Mr. Holland.
Specifically, Appellant contends “there was no criminal intent to commit any
theft, much less a theft while using force or the threat of force.” Appellant’s
Brief at 19. In this vein, Appellant argues the evidence reveals he was
“rightfully demanding his money back” and “simply asked for his own money
back” when he interacted with Mr. Livingston and Mr. Holland. See Appellant’s
Brief at 19.
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4 To the extent Appellant presents a mistake of fact defense (i.e., he did not
have the necessary mens rea as to Mr. Livingston and Mr. Holland as he
believed that he was shooting at Mr. Gregory), the only evidence supporting
the defense was Appellant’s own self-serving testimony, which the jury
rejected. Accordingly, we find Appellant is not entitled to relief. See
Johnson, supra (holding credibility determinations are for the fact finder).
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With respect to the crime of robbery, the Crimes Code relevantly
provides the following:
§ 3701.
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
***
(ii) threatens another with or intentionally puts him in fear
of immediate serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii) (bold in original).
“An act shall be deemed ‘in the course of committing a theft’ if it occurs
in an attempt to commit theft or in flight after the attempt or commission.”
18 Pa.C.S.A. § 3701(a)(2). To sustain a conviction under Section
3701(a)(1)(ii), it is sufficient if the evidence demonstrates aggressive actions
that threatened the victim’s safety. Commonwealth v. Hopkins, 747 A.2d
910 (Pa.Super. 2000). The proper focus is on the nature of the threat posed
by the assailant and whether he reasonably placed a victim in fear of
“immediate serious bodily injury.” Commonwealth v. Rodriquez, 673 A.2d
962 (Pa.Super. 1996). A factfinder is entitled to infer that a victim was in
mortal fear when a defendant visibly brandished a firearm. Hopkins, supra.Here, in finding the evidence was sufficient to sustain Appellant’s
conviction for robbery, the trial court indicated the following:
In the case at bar, both victims testified that [Appellant]
approached their car and said, “Where’s my money, Mother
Fucker?” and then repeated [the phrase] while holding a gun in
the direction of the victims, in an attempt to take their money.
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[Appellant] further confirmed [in his testimony] that these
statements were made and that he did shoot at the victims.
Although Appellant never received any money from the victims,
his demands coupled with his pointing and shooting a firearm at
them was sufficient to find him guilty of robbery. The threat posed
by [Appellant] holding up the gun is enough to place the victims
in immediate and serious fear of bodily harm or death. The
shooting of said gun is further evidence that the victims were
intentionally made to fear immediate serious bodily injury and/or
death. The jury found the victims’ testimony to be credible. Thus,
the evidence was sufficient to find [Appellant] guilty of robbery.
Trial Court Opinion, filed 6/25/18, at 19-20.
We agree with the trial court’s sound analysis. Moreover, we note that,
in developing his appellate argument, Appellant improperly asks that we view
the evidence in the light most favorable to him, as opposed to the
Commonwealth as verdict winner. See Johnson, supra. The jury was free
to believe all, none, or part of Appellant’s testimony, particularly as it related
to the reasons he demanded money from and fired a gun at the victims. See
id. Simply put, Appellant is not entitled to relief.
In his final claim, Appellant avers the evidence was insufficient to sustain
his conviction for possession of an instrument of crime under 18 Pa.C.S.A. §
907(a). Specifically, while Appellant concedes he “illegally possessed a
firearm” and, thus, is guilty of the firearm offenses, he contends “the evidence
did not establish he had the intent to employ the firearm criminally.”
Appellant’s Brief at 21. Appellant specifically argues he “only used the firearm
in order to ward off what he believed to be an imminent threat to his own life.”
Id.
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J-S08038-19
Under the Crimes Code, “[a] person commits a misdemeanor of the first
degree if he possesses any instrument of crime with intent to employ it
criminally.” 18 Pa.C.S.A. § 907(a). An “instrument of crime” includes
“[a]nything used for criminal purposes and possessed by the actor under
circumstances not manifestly appropriate for lawful uses it may have.” 18
Pa.C.S.A. § 907(d).
Here, in rejecting Appellant’s claim, the trial court indicated the
following:
[Appellant] admitted that he pointed a gun and shot said
gun at [Mr.] Livingston and [Mr.] Holland. He further admitted
that he demanded money from the victims. Furthermore, both
witnesses testified that [Appellant] approached them, demanded
money at gunpoint and then shot at them. In light of this
testimony, it was reasonable that the jury found that [Appellant]
used an illegal firearm in the commission of a robbery. As stated
above, [Appellant’s] self-defense justification was presented to
the jury, who then chose not to believe [Appellant]. Therefore,
they did not find that he reasonably believed that he was in
immediate danger of death or serious bodily harm. As a result,
the jury found that he meant to employ the gun criminally.
Trial Court Opinion, filed 6/25/18, at 20-21.
We agree with the trial court’s sound analysis. As with his previous
claim, in developing his appellate argument, Appellant improperly asks that
we view the evidence in the light most favorable to him, as opposed to the
Commonwealth as verdict winner. See Johnson, supra. We conclude
Appellant is not entitled to relief.
For all of the foregoing reasons, we affirm.
Affirmed.
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J-S08038-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/19
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