Com. v. Moore, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DEVON K. MOORE :
:
Appellant : No. 433 MDA 2022
Appeal from the Judgment of Sentence Entered January 5, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000058-2020
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JANUARY 6, 2023
Appellant Devon K. Moore appeals nunc pro tunc from the judgment of
sentence entered in the Court of Common Pleas of York County following his
conviction by a jury on the charges of third-degree murder, criminal attempt-
first-degree murder, and involuntary manslaughter.1 After a careful review,
we affirm.
The relevant facts and procedural history are as follows: The
Commonwealth charged Appellant with multiple crimes in connection with the
shooting death of Solomon Moore (“Solomon”). On October 25, 2021,
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(c), 901(a), and 2504(a), respectively.
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Appellant, who was represented by counsel, proceeded to a jury trial at which
numerous witnesses testified.
Specifically, David Lambert (“David”) testified that, during the evening
of October 25, 2019, he drove his daughter, Starasia David (“Starasia”), and
her paramour, Marvin Butler (“Marvin”), to the Fine Wine and Liquor Store.
N.T., 10/25-27, 2021, at 124-25. At approximately 10:50 p.m., he drove the
pair back to Starasia’s house, and as they all began walking into the house,
two men, later identified as Solomon and Appellant, crossed the street so that
they were on the same side as Starasia’s house. Id. at 124. However, the
men recrossed back to the opposite side of the street momentarily, “put their
hoodies on,” and then again crossed back to the same side of the street as
Starasia’s house. Id. at 125. David told Starasia and Marvin that “them guys
[are] coming back across the street, and they don’t look good.” Id. at 132.
David indicated that, at this point, he was standing on the porch with
Starasia while Marvin was standing on the sidewalk. Id. at 126. As the men
walked closer, David noticed Appellant, who had dark skin and was wearing a
dark-colored hoodie, was “adjusting the gun” in his left hoodie pocket area,
and David could see “[a]lmost all [of the gun].” Id. at 125-26, 132. One of
the men said “something” to Starasia as they walked by her; however, they
“never looked at her.” Id. at 126. Rather, the men approached Marvin and
stood “face to face” with him. Id. at 126, 135.
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David testified that gunfire suddenly erupted from the group of men
although he was unable to determine who fired the first shot.2 Id. at 127. He
saw Appellant “get shot and fall to the ground[,]” and he saw Marvin shooting
towards Solomon. Id. at 127, 134, 136. In response to the gunshots, David
pulled Starasia into the building and, after the gunshots ceased, he went
outside. Id. He saw Marvin running, Appellant lying on the sidewalk
attempting to reload his gun, and Solomon lying dead behind a car. Id.
David watched as Appellant spoke on a cell phone and crawled to the
front of a car. Id. at 128. He observed an extra clip lying on the ground and,
fearing that Appellant might begin shooting at him and Starasia, he pulled her
towards the back of the building. Id. They then left the scene. Id.
David testified that, after the shooting, Starasia fled, and he does not
know where she is currently living. Id. at 131. He noted that, at some point
after the shooting, people broke into Starasia’s house, and it appeared they
had been waiting for her to return. Id.
Horace Walton (“Horace”) testified he was sitting in a car near Starasia’s
home during the evening of October 25, 2019. Id. at 138. He was playing
“loud” music and did not hear any gunshots. Id. at 140. However, at
approximately 10:50 p.m., a guy “bolted” in front of his car, opened the car
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2David testified that “30, 40 seconds, 50 at the most[,]” passed from when
he declared the men were coming back across the street until the shooting
occurred. Id. at 136.
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door, entered the car, and asked Horace to drive him “somewhere.” Id.
Horace drove the man to a nearby restaurant. Id.
Tanahsia (“Tanahsia”) Wright testified that Appellant is her boyfriend,
and she knows Solomon, who was Appellant’s cousin. Id. at 153, 158. She
and Appellant lived together near Starasia’s house, and during the evening of
October 25, 2019, Appellant left their house. Id. at 160-61. Soon thereafter,
at approximately 10:52 p.m., she heard sirens. Id. at 154. Prior to this, she
did not hear any gunshots or “a commotion” in the street. Id. Upon hearing
the sirens, Tanahsia left her home, and she discovered Appellant had been
taken to the hospital while Solomon was dead. Id. at 155.
Tanahsia confirmed she has made “approximately 900 plus phone calls”
to Appellant in the time since the shooting, and she is still romantically
involved with Appellant; however, she denied that they have ever talked about
the shooting. Id. at 156. She confirmed Appellant never told her he was
defending himself when he shot at Marvin. Id. at 157. She testified they do
not talk about the subject because Appellant “gets depressed” when the
shooting is mentioned. Id. She admitted Appellant did not want to talk to the
police because the shooting was “traumatic” for him. Id. at 162.
York City Police Detective Tiffany Pitts (“Detective Pitts”) confirmed she
reviewed private security footage from a video recorded the night in question.
The video reveals Appellant was wearing a dark sweatshirt while Solomon was
wearing a white sweatshirt. Id. at 169. The video shows that David and
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Starasia were standing on the porch while Marvin was standing on the
sidewalk when Appellant and Solomon approached Marvin. Id. at 170. The
video shows “a series of muzzle flashes[.]” Id. Specifically, the video shows
“the first flash” appears to come from the left arm of Appellant, who is left-
handed. Id. at 177.
The video then reveals that Solomon and Appellant “go down to the
ground” while Marvin “kind of walk[s] out towards the street…between two
vehicles[.]” Id. at 170. The video depicts Appellant crawling towards the back
of a car, and a “reflection on one of the bumpers…indicates…there was a
muzzle flash back there,” which suggested Appellant was continuing to fire his
gun. Id. at 177. Soon thereafter, an unidentified person runs into the area,
appears to pick up something, runs over to Appellant, and then runs away.
Id. at 171. Detective Pitts additionally testified that video footage was
retrieved from a nearby restaurant for the time in question. The video shows
Horace driving up and dropping off Marvin. Id. at 179.
Moreover, Detective Pitts testified she attempted to interview Appellant
while he was in the hospital; however, Appellant indicated he could not talk
because “he was mourning.” Id. at 351. Appellant never made any
statements to the police about the events surrounding the shooting. Id.
Detective Pitts noted Appellant had a valid license to carry a firearm on the
date at issue. Id. at 354. She also testified that, as part of the investigation,
she examined Appellant’s social media and discovered that, in the days prior
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to the shooting, Appellant searched for “Flea,” which is Marvin’s nickname, on
Facebook. Id. at 364-65.
York City Police Officer Joseph Colahan (“Officer Colahan”) testified he
was on duty during the evening of October 25, 2019, when he heard a call for
shots fired outside of Starasia’s house. He and his partner traveled to the
scene. While his partner checked on Appellant, who was wounded, and
Solomon, who was deceased, Officer Colahan began taping off the scene. Id.
at 195. Officer Colahan found a handgun, which was a Glock .40 caliber pistol
containing a magazine, in the driver’s side rear wheel of a Volvo parked
directly in the crime scene. Id. at 197, 234. Appellant was found shot and
lying next to the Volvo by the police. Id. at 287. A cell phone was recovered
from Appellant. Id. at 203. Additionally, money was discovered near
Solomon’s body. Id. Also, a vehicle leased to Appellant was found running
and parked in a no parking zone in the middle of the street near the shooting.
Id. at 198.
Numerous additional York City police officers testified about the
investigation. Their testimony revealed eighteen bullet casings, discharged
from at least two separate firearms, were recovered from the scene. Id. at
199-247, 258, 260. Also, Appellant’s clothing, including a black hoodie, which
he was wearing at the time of the shooting, was recovered by police from the
hospital, where Appellant was treated for two gunshot wounds. Id. at 208,
221, 245, 289-90. Appellant’s hoodie had several bullet fragments lodged
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into the cloth. Id. at 245. Allison Laneve, a forensic scientist, testified
Appellant’s hoodie tested positive for gunshot residue. Id. 323-24, 327-41.
Dr. Samuel Land (“Dr. Land”), who is a forensic pathologist, testified he
performed an autopsy on Solomon, who suffered gunshot wounds. Id. at
308-09. Dr. Land testified, to a reasonable degree of medical certainty, that
Solomon died from these gunshot wounds. Id. at 313.
At the conclusion of trial, the jury convicted Appellant of the offenses
indicated supra, and on January 5, 2022, the trial court sentenced Appellant
to an aggregate of seven years to fourteen years in prison. Appellant filed a
timely counseled post-sentence motion, which the trial court denied on
January 18, 2022. Appellant did not file a timely notice of appeal; however,
on March 7, 2022, after Appellant filed a counseled petition, the trial court
reinstated Appellant’s appeal rights nunc pro tunc in accordance with the
PCRA.3 On March 8, 2022, Appellant filed a counseled notice of appeal nunc
pro tunc. All Pa.R.A.P 1925 requirements have been met.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Involved” (verbatim):
A. Whether there was sufficient evidence to sustain a conviction
for third-degree murder under a theory that Defendant created
a chain reaction that led to another person shooting and killing
the victim?
B. Whether there was sufficient evidence to sustain a conviction
for involuntary manslaughter?
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3 Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
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C. Whether there was sufficient evidence to sustain a conviction
for criminal attempt-murder of the first degree?
Appellant’s Brief at 4 (suggested answers omitted).
Initially, inasmuch as all of Appellant’s claims present challenges to the
sufficiency of the evidence, we note this Court’s standard of review when
considering a challenge to the sufficiency of the evidence requires us to look
at the evidence in a light most favorable to the Commonwealth, as verdict
winner, and determine whether the evidence presented, actual and/or
circumstantial, was sufficient to enable a fact-finder to find every element of
the crime charged, beyond a reasonable doubt. See Commonwealth v.
O'Brien, 939 A.2d 912 (Pa.Super. 2007).
In applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition, we
note that the facts and the 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.
Id. at 913–914 (quotation omitted). The finder of fact is free to believe all,
some, or none of the evidence presented and is free to determine the
credibility of the witnesses. Commonwealth v. Dailey, 828 A.2d 356(Pa.Super. 2003).
Appellant first contends the evidence was insufficient to sustain his
conviction for third-degree murder on the following grounds: (1) the
Commonwealth failed to prove malice and causation, and (2) the
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Commonwealth failed to disprove that Appellant acted in self-defense. In
essence, Appellant contends the evidence reveals he was lawfully walking
down the street while carrying a licensed firearm when Marvin killed Solomon,
who was Appellant’s cousin. According to Appellant, he shot at Marvin in self-
defense, and since his conduct was not the direct cause of Solomon’s death,
he cannot be criminally culpable for third-degree murder.
Pennsylvania retains the common law definition of murder,
which is a killing conducted “with malice aforethought.” Section
2502 of the Pennsylvania Crimes Code categorizes murder into
degrees. Third-degree murder is defined as “all other kinds of
murder,” i.e., those committed with malice that are not intentional
(first-degree) or committed during the perpetration of a felony
(second-degree).
Commonwealth v. Packer, 641 Pa. 391, 168 A.3d 161, 168 (2017)
(citations omitted). See Commonwealth v. Fisher, 622 Pa. 366, 80 A.3d
1186, 1195 (2013) (“[T]hird[-]degree murder is not by definition an
unintentional killing; it is a malicious killing without proof that the specific
result intended from the actions of the killer was the death of the victim.”)
(citation omitted)).
Malice includes not only particular ill will toward the victim, but also
wickedness of disposition, hardness of heart, wantonness, and cruelty,
recklessness of consequences, and conscious disregard by the defendant of
an unjustified and extremely high risk that his actions may cause serious
bodily harm. Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230, 232
(1981); Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).
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As it pertains to causation, the following legal framework governs our
review:
(a) General rule.—Conduct is the cause of a result when:
(1) it is an antecedent but for which the result in question would
not have occurred; and
(2) the relationship between the conduct and result satisfies any
additional causal requirements imposed by this title or by the law
defining the offense.
***
(c) Divergence between probable and actual result.—When
recklessly or negligently causing a particular result is an element
of an offense, the element is not established if the actual result is
not within the risk of which the actor is aware or, in the case of
negligence, of which he should be aware unless:
(1) the actual result differs from the probable result only in the
respect that a different person or different property is injured or
affected or that the probable injury or harm would have been more
serious or more extensive than that caused; or
(2) the actual result involves the same kind of injury or harm as
the probable result and is not too remote or accidental in its
occurrence to have a bearing on the liability of the actor or on the
gravity of his offense.
18 Pa.C.S.A. § 303 (bold in original).
The Commonwealth must “prove a direct causal relationship between
the defendant’s acts and the victim’s death.” Commonwealth v. Rementer,
598 A.2d 1300, 1304 (Pa.Super. 1991) (citations, quotation marks, and
emphasis omitted). “Put another way, if the fatal result was an unnatural or
obscure consequence of the defendant’s actions, our sense of justice would
prevent us from allowing the result to impact on the defendant’s guilt.” Id.- 10 -
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at 1306-07. “[I]t is well established that the tort theory of causation will not
suffice to impose criminal responsibility.” Id. at 1304.
[C]ausation-in-fact, the “but for” element of assessing
the causal connection, alone will not necessarily determine
criminal culpability. If it did, little would distinguish tort liability
from criminal liability. Our cases emphasize that a criminal
conviction requires “a more direct causal connection” than tort
concepts. Thus, not only do we demand that the defendant’s
conduct actually cause the victim’s death in that “it is an
antecedent but for which the result in question would not have
occurred”, we also question, in cases such as the instant one,
whether the fatal result was so extraordinary, remote or
attenuated that it would be unfair to hold the defendant criminally
responsible for it.
Id. at 1306 (citations and footnotes omitted).
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 criminal liability.” Commonwealth
v. Long, 624 A.2d 200, 203-04 (Pa.Super. 1993) (citing Rementer, 598 A.2d
at 1304).
In Rementer, we set forth a two-part test for determining
criminal causation. First, the defendant’s conduct must be an
antecedent, but for which the result in question would not have
occurred. Rementer, 598 A.2d at 1304; 18 Pa.C.S.A. §
303(a)(1). 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.” Rementer, 598 A.2d at 1305, n.3 (quotation
omitted). Second, the results of the defendant’s actions cannot
be so extraordinarily remote or attenuated that it would be unfair
to hold the defendant criminally responsible. Id. at 1305.
As to the first part of the test, the defendant’s conduct need
not be the only cause of the victim’s death in order to establish a
causal connection. Id. “Criminal responsibility may be properly
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assessed against an individual whose conduct was a direct and
substantial factor in producing the death even though other
factors combined with that conduct to achieve the result.” Long,
624 A.2d [at] 203[.] The second part of the test is satisfied when
the victim’s death is the natural or foreseeable consequence of the
defendant’s actions.
Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa.Super. 2008) (citations
and quotations omitted).
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, we conclude the evidence provides ample support for
Appellant’s conviction of third-degree murder for the shooting death of
Solomon. Appellant, in concert with Solomon, put their hoodies on, crossed
the street, and directly approached Marvin, who was walking behind David
and Starasia after they disembarked from a vehicle. Appellant was visibly
carrying a handgun and “adjusting” it as he approached Marvin. N.T., 10/25-
27, 2021, at 125-26, 132. David warned Marvin that the two men were
approaching, and “they don’t look good.” Id. at 132. Surveillance video
depicted gunfire between Appellant and Marvin with the first “flash of light”
coming from Appellant’s left arm. Trial Court Opinion, filed 5/16/22, at 3
(citation to transcript omitted). Marvin returned fire and, ultimately, Solomon
was fatally shot.
We conclude Appellant’s actions of engaging in the gunfight
demonstrated a recklessness of consequences, and conscious disregard by
him of an unjustified and extremely high risk that his actions may cause
serious bodily harm. Young, supra. Thus, the Commonwealth demonstrated
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malice. Further, but for Appellant’s actions of approaching Marvin and
shooting at him, Appellant’s cohort, Solomon, would not have been shot by
Marvin’s return of gunfire. As noted supra, Appellant’s actions need not be
the sole cause of death to establish a causal connection. Rather, Appellant’s
conduct of crossing the street with his gun visible, approaching Marvin, and
shooting at Marvin, thereby prompting the shoot-out, was “a direct and
substantial factor in producing [Solomon’s] death even though other factors
combined with that conduct to achieve the result.” Long, 624 A.2d at 203.
The death of Appellant’s cohort, who was unarmed, was a natural and
foreseeable consequence of the shoot-out; it does not matter for purposes of
causation in a third-degree murder case that Appellant’s intended
consequence was for Marvin to be shot, and not his cousin, Solomon. Thus,
we conclude that both parts of the test for causation were satisfied, and the
evidence supports a finding that Appellant caused the death of Solomon for
purpose of third-degree murder. Rementer, supra.Additionally, we reject Appellant’s claim the Commonwealth failed to
disprove that Appellant acted in self-defense.
Self-defense is a complete defense to a homicide charge if (1) the
defendant reasonably believed that he was in imminent danger of death or
serious bodily injury and that it was necessary to use deadly force to prevent
such harm; (2) the defendant did not provoke the threat that resulted in the
slaying; and (3) the defendant did not violate a duty to retreat. 18 Pa.C.S.A.
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§ 505(b)(2); Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108,
1124 (2012). Where the defendant has introduced evidence of self-defense,
the burden is on the Commonwealth to disprove the self-defense claim beyond
a reasonable doubt by proving that at least one of those three elements is
absent. Sepulveda, supra, 55 A.3d at 1124.
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, 610 Pa. 264, 18 A.3d 1128, 1135 (2011).
Disbelief of the 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. Torres, 564 Pa. 219, 766 A.2d
342, 345 (2001).
Here, we conclude the Commonwealth sufficiently disproved Appellant’s
claim of self-defense. Specifically, there is no dispute Appellant provoked the
threat that resulted in Solomon’s slaying when he put on his hoodie, crossed
the street with Solomon, approached Marvin while visibly adjusting his
handgun, and fired the handgun at him. Further, there is no evidence
Appellant attempted to retreat; but rather, he continued the shoot-out with
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Marvin while on the street. 18 Pa.C.S.A. § 505(b)(2); Sepulveda, supra.Thus, there is no merit to Appellant’s claim.4
Appellant’s next claim is the evidence was insufficient to sustain his
conviction for involuntary manslaughter. Specifically, he contends the
Commonwealth failed to prove he did an unlawful or lawful act in a recklessly
or grossly negligent manner, as well as failed to prove a causal connection
between his conduct and the death of Solomon.
Section 2504 of the Crimes Code defines involuntary manslaughter as:
“[a] person is guilty of involuntary manslaughter when as a direct result of
the doing of an unlawful act in a reckless or grossly negligent manner, or the
doing of a lawful act in a reckless or grossly negligent manner, he causes the
death of another person.” 18 Pa.C.S.A. § 2504(a). Stated differently,
“involuntary manslaughter requires 1) a mental state of either recklessness
or gross negligence[,] and 2) a causal nexus between the conduct of the
accused and the death of the victim.” Commonwealth v. McCloskey, 835
A.2d 801, 806 (Pa.Super .2003).
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4 To the extent Appellant raises the defense of imperfect self-defense, we note
that, 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 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. 18 Pa.C.S.A. § 2503(b); Sepulveda,
supra. As indicated supra, we conclude the Commonwealth proved Appellant
provoked the attack, which led to Solomon’s slaying, and he violated a duty
to retreat. Thus, we do not address this issue further.
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A person acts recklessly with respect to a material element
of an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor’s conduct and
the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation.
18 Pa.C.S.A. § 302(b)(3). The term “recklessly,” as set forth in Section
302(b)(3), encompasses “gross negligence” for purposes of involuntary
manslaughter. Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d 862,
868 (2003).
In the case sub judice, we conclude the Commonwealth sufficiently
proved Appellant did an unlawful or law act in a reckless manner, i.e.,
consciously disregarded a substantial and unjustifiable risk that a person’s
death would result from his conduct, when he crossed the street with Solomon
(who was unarmed), visibly displayed his handgun, adjusted his handgun as
he approached Marvin, and engaged in a shoot-out. See 18 Pa.C.S.A. §
302(b)(3). Further, for reasons already discussed supra, we reject Appellant’s
claim that there was no casual nexus between his conduct and the death of
Solomon.5 Accordingly, we conclude the evidence was sufficient to sustain his
conviction for involuntary manslaughter.
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5 Moreover, to the extent Appellant contends the Commonwealth failed to
disprove Appellant’s claim of self-defense as it relates to his conviction for
involuntary manslaughter, for the same reasons discussed supra, we find no
merit to the claim.
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In his final claim, Appellant contends the evidence was insufficient to
sustain his conviction for criminal attempt to commit first-degree murder.
To obtain a conviction for first-degree murder, the Commonwealth must
demonstrate that a human being was unlawfully killed, the defendant
perpetrated the killing, and the defendant acted with malice and a specific
intent to kill. Commonwealth v. Ovalles, 144 A.3d 957, 969 (Pa.Super.
2016). A person is guilty of attempted murder if he takes a substantial step
towards an intentional killing. Commonwealth v. Wesley, 860 A.2d 585,
593 (Pa.Super. 2004).
“A person commits an attempt when, with the intent to commit a specific
crime, he does any act which constitutes a substantial step towards the
commission of that crime.” 18 Pa.C.S.A. § 901(a).
“For a defendant to be found guilty of attempted murder, the
Commonwealth must establish specific intent to kill.”
Commonwealth v. Geathers, 847 A.2d 730, 734
(Pa.Super.2004). Therefore, “[i]f a person takes a substantial step
toward the commission of a killing, with the specific intent in mind
to commit such an act, he may be convicted of attempted
murder.” In re R.D., 44 A.3d 657, 678 (Pa.Super. 2012). “The
Commonwealth may establish the mens rea required for first-
degree murder, specific intent to kill, solely from circumstantial
evidence.” Id. Further, our Supreme Court has repeatedly
determined that “[t]he use of a deadly weapon on a vital part of
the body is sufficient to establish the specific intent to kill.”
Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1009
(2007); see also Commonwealth v. Cousar, 593 Pa. 204, 928
A.2d 1025, 1034 (2007) (“a specific intent to kill may be inferred
from the use of a deadly weapon on a vital part of the victim's
body.”).
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016).
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Viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, we conclude the evidence was sufficient
to sustain Appellant’s conviction for criminal attempt to commit first-
degree murder. Specifically, the circumstantial evidence reveals Appellant
had the specific intent to kill Marvin, and he took a substantial step in this
endeavor. Specifically, Appellant, who searched for Marvin on social media
in the days before the shoot-out, crossed the street, visibly carried his
handgun, adjusted his handgun, approached Marvin, fired a shot at him,
and engaged in a shoot-out with him. Thus, we find no merit to Appellant’s
claim. See Tucker, supra.
We note that, in developing his sufficiency of the evidence claims,
Appellant invites us to reassess the credibility of the testimony offered by the
witnesses. Also, in developing his sufficiency claims, he presents the evidence
in the light most favorable to him and advances his version of the events.
However, under the standard governing our review of sufficiency challenges,
an appellate court cannot reweigh the evidence and substitute its judgment
for that of the jury, as fact-finder. See Commonwealth v. Gibbs, 981 A.2d
274, 282 (Pa.Super. 2009) (reiterating, “a review of the sufficiency of the
evidence does not include an assessment of the credibility of testimony”)
(citation omitted)). Also, we must view the evidence in the light most
favorable to the Commonwealth, as the verdict winner. O'Brien, supra.
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For all of the foregoing reasons, we find no merit to Appellant’s claims,
and we affirm his judgment of sentence.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2023
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