Com. v. Yelverton, J. ( 2022 )

J-S37022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA J. YELVERTON :
:
Appellant : No. 2030 EDA 2021
Appeal from the Judgment of Sentence Entered August 6, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002143-2020
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 16, 2022
Joshua J. Yelverton appeals from the judgment of sentence, entered in
the Court of Common Pleas of Philadelphia County, following his convictions
of third-degree murder,1 conspiracy – third-degree murder,2 possessing
instruments of crime (PIC),3 firearms not to be carried without a license,4 and
carrying firearms on public streets or public property in Philadelphia.5 After
review, we affirm.
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1 18 Pa.C.S.A. § 2502(c).
2 Id. at § 903.
3 Id. at § 907(a).
4 Id. at § 6106(a)(1).
5 Id. at § 6108.
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On October 31, 2019, at approximately 4:45 p.m., Yelverton and
Marquis Mathis arrived at the Regency Apartments Complex at 5600 Ogontz
Avenue in Philadelphia. For forty-five minutes, Yelverton and Marquis walked
around the complex, entered and exited several apartment buildings, and
ultimately stopped in the large courtyard.6
At 5:30 p.m., while Yelverton and Mathis stood in the large courtyard,
a man wearing a clown mask, Carter, approached Mathis. Yelverton was
hidden behind a wall. Carter had a brief exchange with Mathis, after which
Yelverton pulled out his gun, a .45 caliber firearm with an extended
magazine.7 At the same time, Mathis also pulled out his firearm. Carter pulled
out his own firearm and, within seconds, all three men began shooting.
Yelverton remained hidden behind the wall while he shot at Carter.
Mathis, likewise, shot at Carter. Carter’s gun, after firing a single bullet, was
struck in the baseplate, which broke the gun into multiple pieces and caused
all the bullets, except for one, to fall out of the damaged gun. Carter
attempted to run, but was struck by multiple bullets. Carter collapsed almost
immediately, facing away from Mathis and Yelverton. As Carter fell, his
damaged firearm fell from his hand and landed several feet away from him.
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6 Yelverton and Mathis’s arrival at the apartment complex, their walk through
the complex, and the subsequent murder of Craig Carter Jr. was captured on
surveillance video and presented at trial.
7 Yelverton did not have a license to carry a firearm.
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After Carter collapsed, the shooting momentarily paused and Mathis put
his firearm away. Yelverton walked out from behind the wall and continued
to fire at Carter, who was unarmed and lying on the ground. Yelverton and
Mathis began to run away, but Yelverton stopped and fired at Carter again.
Yelverton and Mathis fled the scene together and disposed of their firearms
under the same car.
Police from the 35th Philadelphia Police District heard gunshots and
responded to the scene. Police recovered twenty-one .45 caliber fired
cartridge casings (FCCs), four .357 caliber FCCs,8 one 9mm FCC, eight 9mm
live cartridges, one 9mm handgun with the magazine missing the bottom
plate, a clown mask, and one pair of earbuds. Police transported Carter to
Albert Einstein Hospital, where he was pronounced dead.
Doctor Albert Chu, Deputy Medical Examiner, recovered eleven
projectiles from Carter’s body. Ten projectiles were .45 caliber rounds fired
from Yelverton’s gun. One projectile was inconclusive. Carter was shot
fourteen times in total.
Yelverton was identified from the apartment complex surveillance video.
However, after the shooting, Yelverton cut off his dreadlocks, avoided
returning to his home, and evaded arrest for several months. Ultimately,
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8 Mathis’s firearm was a .357 caliber handgun.
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Yelverton was located, arrested, and interviewed. Yelverton was Mirandized9
and confessed to killing Carter.
Yelverton was charged and, on May 18, 2021, he proceeded to a non-
jury trial, after which he was convicted of the above-mentioned offenses. The
trial court deferred sentencing for the preparation of a pre-sentence
investigation and mental health reports. On August 6, 2021, the trial court
sentenced Yelverton to an aggregate term of 20 to 44 years in prison.
Yelverton filed a timely post-sentence motion, which was denied. Yelverton
filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
Yelverton now raises the following questions for our review:
[1.] Was the evidence sufficient to convict [] Yelverton of third-
degree murder, conspiracy to commit third-degree murder, and
PIC, where the Commonwealth failed to disprove he acted in self-
defense?
[2.] Did the trial court commit reversible error when the court
rejected [] Yelverton’s imperfect self-defense theory and
convicted him of third-degree murder, not voluntary
manslaughter?
[3.] Was the evidence sufficient to convict [] Yelverton of
conspiracy, where the evidence did not prove beyond a reasonable
doubt that he agreed with another person to engage in criminal
conduct?
Brief for Appellant, at 7.
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9 Miranda v. Arizona, 384 U.S. 436 (1966).
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When examining a challenge to the sufficiency of the evidence, we
adhere to the following standard of review:
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 [re-
]weigh the evidence and substitute our judgment for 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.
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation
omitted).
For ease of disposition, we address Yelverton’s first two claims together.
In his first claim, Yelverton argues that he raised a claim of self-defense at
trial, which the Commonwealth failed to disprove beyond a reasonable doubt.
See Brief for Appellant, at 15-21. In his second claim, Yelverton argues that
even if he did not act in self-defense, he acted in imperfect self-defense and
the trial court erred by not finding him guilty of voluntary manslaughter. Id.
at 21-23. We disagree.
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The Crimes Code defines third-degree murder as “[a]ll other kinds of
murder” other than first and second-degree murder and classifies it as “a
felony of the first degree.” 18 Pa.C.S.A. § 2502(c). To sustain a conviction
of third-degree murder, the Commonwealth must prove that the defendant
killed another person with malice. Commonwealth v. Hardy, 918 A.2d 766,
774 (Pa. Super. 2007). Malice is defined as “exhibiting an ‘extreme
indifference to human life.’” Commonwealth v. Ludwig, 874 A.2d 623, 632
(Pa. 2005) (quoting Commonwealth v. Young, 431 A.2d 230, 232 (Pa.
1981)) (emphasis omitted). A fact-finder may find malice not only in an
intentional killing, “but also in an unintentional homicide where the perpetrator
consciously disregarded an unjustified and extremely high risk that his actions
might cause death or serious bodily injury.” Ludwig, 874 A.2d at 632
(quotation and citation omitted). A fact-finder may also infer malice “from
the use of a deadly weapon upon a vital part of the victim’s body.”
Commonwealth v. Thomas, 54 A.3d 332, 335-36 (Pa. 2012).
For the following reasons, we conclude that the Commonwealth
presented sufficient evidence that disproved Yelverton’s self-defense and
imperfect self-defense claims. In particular, Yelverton provoked the incident
by drawing his firearm first, and he escalated the use of force by firing 21
bullets at Carter, striking him at least 10 times, and continuing to fire after
Carter had crumpled to the ground.
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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 another person. 18 Pa.C.S.A. § 505(a).
There is no burden on the defendant to prove a claim of self-defense, but
there must be some evidence, from any source, to justify a finding of self-
defense. See Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977). If
there is any evidence that will support the claim, then the issue is properly
before the fact finder. See Commonwealth v. Mayfield, 585 A.2d 1069,
1071 (Pa. Super. 1991). “If a defendant introduces evidence of self-defense,
the Commonwealth bears the burden of disproving the self-defense claim
beyond a reasonable doubt.” Commonwealth v. Houser, 18 A.3d 1128,
1135 (Pa. 2011).
The Commonwealth can disprove a claim of self-defense by establishing
that “[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.” Smith, 97 A.3d at 787. The Commonwealth
must establish only one of these three elements beyond a reasonable doubt.
Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000).
The finder of fact is not required to believe the defendant’s testimony
that he thought that he was in imminent danger and acted in self-defense.
Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011). Disbelief of the
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defendant’s testimony, however, is not sufficient to satisfy the
Commonwealth’s burden to disprove self-defense absent some evidence
negating self-defense. Commonwealth v. Ward, 188 A.3d 1301, 1304 (Pa.
Super. 2018).
In his second claim, Yelverton argues that even if he was not acting in
self-defense, he was acting in imperfect self-defense and that the trial court
erred in not finding him guilty of voluntary manslaughter. See Brief for
Appellant, at 21-23.
The Crimes Code defines voluntary manslaughter as follows:
(b) Unreasonable belief killing justifiable.--A person who
intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the
circumstances to be such that, if they existed, would justify the
killing under Chapter 5 of this title, but his belief is unreasonable.
18 Pa.C.S.A. § 2503(b).
The defense of “imperfect self-defense,” which reduces the crime of
murder to voluntary manslaughter, exists where the defendant actually, but
unreasonably, believed that deadly force was necessary to protect himself or
another against the use of unlawful force. See Commonwealth v. Truong,
36 A.3d 592, 599 (Pa. Super. 2012). This defense applies only in limited
circumstances. See Commonwealth v. Green, 273 A.3d 1080, 1087-88
(Pa. Super. 2022). This Court has recently stated:
If the Commonwealth proves that the defendant’s belief that
deadly force was necessary was unreasonable but does not
disprove that [] the defendant genuinely believed that he was in
imminent danger that required deadly force and does not disprove
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either of the other elements of self-defense, the defendant may
be found guilty only of voluntary manslaughter under the defense
of imperfect self-defense.
See Commonwealth v. Jones, 271 A.3d 452, 459 (Pa. Super. 2021).
Instantly, the record reveals that Carter, wearing a clown mask,
approached Mathis. N.T. Non-Jury Trial, 5/18/21, at 75, 77-81, 90-96; id.,5/19/21, at 15-28. Yelverton was hidden behind a wall and drew his firearm
as Carter approached. Id. 5/18/21, at 89-93, 113-16; id., 5/19/21, at 39,
58. Carter, Yelverton, and Mathis all had firearms. Id., 5/18/21, at 93-94,
113-16; id., 5/19/21, at 39, 53. While the record is unclear as to who fired
first, it is clear that Carter fired one bullet, but Yelverton fired 21 bullets. See
id., 5/18/21, at 24-25, 37-38, 169-73, 204-05. Even though Carter had been
struck, disarmed, and collapsed to the ground, Yelverton continued to fire at
Carter. Id., 5/18/21, at 55, 64, 95-96, 121-22; id., 5/19/21, at 26-28, 75-
82, 85-91.
Based upon the above facts, the Commonwealth disproved Yelverton’s
claim of self-defense beyond a reasonable doubt. See Commonwealth v.
Harvey, 812 A.2d 1190, 1196 (Pa. 2002) (even assuming victim threatened
defendant with deadly force before defendant shot him, “the autopsy report
revealed that [the victim] had been shot a total of six times, which was simply
more force than would have been necessary for the [the defendant] to use in
order to protect himself”); see also Commonwealth v. Rivera, 983 A.2d
1211, 1222 n.10 (Pa. 2009) (“even if [a]ppellant believed that [the victim]
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was pursuing him with a deadly weapon, the use of force employed by
[a]ppellant was excessive in that he shot [the victim] a second time at close
range after already having shot him in the chest, causing the victim to fall
forward”). It is clear that Yelverton provoked the use of force by drawing his
firearm first. Similarly, it is apparent that Yelverton escalated that force when
he shot Carter, continued to shoot at him 21 times even after Carter had
collapsed and been disarmed, and struck Carter with at least 10 of those shots.
Meanwhile, Carter discharged a single round, which did not strike Yelverton.
Therefore, we conclude the Commonwealth presented sufficient evidence to
disprove Yelverton’s self-defense claim. See Smith, supra; see also
Harvey, supra. Accordingly, we grant him no relief.10
Yelverton’s claim of imperfect self-defense fails for the same reasons as
his claim of self-defense. Namely, Yelverton provoked the altercation by
drawing his firearm first, and escalated the use of force by repeatedly firing
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10 Moreover, we observe that after shooting Carter, Yelverton fled the scene
with Mathis and both of them hid their firearms under the same vehicle. See
N.T. Non-Jury Trial, 5/18/21, at 90-96; id., 5/19/21, at 15-28, 39.
Additionally, after fleeing the scene, Yelverton changed his appearance and
evaded arrest for several months. See N.T. 5/18/21, at 16-18, 230-33; id.,
5/19/21, at 54, 91-96; see also Commonwealth v. Hughes, 865 A.2d 761,
792 (Pa. 2004) (conduct of defendant after crime may be admitted showing
guilt); Commonwealth v. Bradley, 69 A.3d 253, 258-59 (Pa. Super. 2013)
(“[D]efendant’s attempts to cover up after a crime can be inferred to
demonstrate consciousness of guilt.”). Thus, Yelverton’s flight and
subsequent attempted concealment of his firearm undermine his claim of self-
defense.
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his weapon even after Carter had already been disarmed and collapsed on
the ground. See Jones, supra. Accordingly, we grant Yelverton no relief.
In his third claim, Yelverton argues that the Commonwealth presented
insufficient evidence to sustain his conviction of conspiracy. See Brief for
Appellant, at 23-25. Yelverton contends that he was unaware that Mathis
followed him away from the scene. Id. Additionally, Yelverton asserts that
he did not intend to enter into a criminal conspiracy because the killing of
Carter arose from “unexpected events.” Id. at 23. Yelverton posits that he
did not agree to commit a crime with Mathis, because Yelverton’s intention
was to defend himself from Carter. Id. at 23-24.
The Crimes Code defines conspiracy as follows:
(a) Definition of conspiracy.--A person is guilty of conspiracy with
another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one of more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S.A. § 903(a).
Simplified, the offense of conspiracy requires proof of three elements:
(1) an agreement, (2) shared criminal intent, and (3) an overt act. See
Commonwealth v. Murphy, 795 A.2d 1025, 1037-38 (Pa. Super. 2002).
The “overt act need not be committed by the defendant; it need only be
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committed by a co-conspirator.” Commonwealth v. Hennigan, 753 A.2d
245, 253 (Pa. Super. 2000).
“Mere association with the perpetrators, mere presence at the scene, or
mere knowledge of the crime is insufficient to establish that a defendant was
part of a conspiratorial agreement to commit the crime.” Commonwealth v.
Dunkins, 229 A.3d 622, 633 (Pa. Super. 2020) (citation omitted). Generally,
there must be some additional proof that a defendant intended to commit the
crime along with the co-conspirator. Id.Instantly, the trial court addressed Yelverton’s claim as follows:
[Yelverton] and Mathis arrived at the apartment complex
together, spent approximately forty-five minutes in the apartment
complex together, and waited in the courtyard together before the
shooting. [Yelverton and Mathis] raised [their] weapon[s at
Carter together.] [Yelverton] and Mathis began firing at [Carter]
at the same time. They ran away from the scene of the murder
together. As they fled, [Yelverton] and Mathis disposed of their
weapons by tossing them under the same car. [Thus,] the
Commonwealth presented ample evidence of an agreement to
commit a crime between [Yelverton] and Mathis.
Trial Court Opinion, 11/5/21, at 5.
Based upon our review of the record, we agree with the trial court’s
determination and affirm on this basis. See id. We emphasize that Yelverton
was not “merely” associating with Mathis, or merely present at the scene. See
Dunkins, supra. Rather, Yelverton and Mathis arrived together, spent time
together, aimed their firearms at Carter together, shot Carter together, fled
the scene together, and hid their firearms under the same car. See Trial Court
Opinion, 11/5/21, at 5. Thus, the Commonwealth presented sufficient
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evidence to sustain Yelverton’s conviction of conspiracy and we afford him no
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2022
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