Com. v. McCormick, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANDREW MCCORMICK :
:
Appellant : No. 1033 EDA 2022
Appeal from the Judgment of Sentence Entered March 15, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0008465-2019
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED APRIL 12, 2023
Andrew McCormick (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of aggravated assault, possession
of an instrument of crime, simple assault, and recklessly endangering another
person.1 We affirm.
The trial court recounted the facts presented at trial as follows:
On September 25, 2019, Felicia Giles (hereinafter “Ms. Giles”)
testified that she called the police to have her cousin, Appellant,
removed from their grandmother’s home at 5355 Thomas Ave,
Philadelphia, PA[; the police informed Ms. Giles that] a restraining
order was required. Notes of Testimony (hereinafter “N.T.”),
Waiver Trial, 11/08/21. Ms. Giles then called both her brother,
James Giles (hereinafter “Mr. Giles”), and her boyfriend, Shalon
Kirkland (hereinafter “Mr. Kirkland”), requesting their help in
transporting her grandmother, Vivian Murray (homeowner), to
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a), 907(a), 2701(a), and 2705.
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secure a restraining order to evict Appellant. Id. Mr. Giles and
Mr. Kirkland arrived [at] the address separately, but
simultaneously. Id. Upon arrival, Mr. Kirkland informed Mr. Giles
of his intent to fight the Appellant[.] Id.
When the Appellant learned Mr. Kirkland was going to fight
him, the Appellant retreated to an upstairs bedroom and closed
the door behind him. Id. Mr. Kirkland continued after the
Appellant[,] who then emerged from the bedroom with a knife in
his hand. Id. The fight between the Appellant and Mr. Kirkland
began in the stairwell leading from the living room to the upper
floor. Id. All four individuals were involved in the first altercation
on the stairwell: Appellant at the top of the stairs with Ms. Giles
and Mr. Giles on the middle steps attempting to separate Mr.
Kirkland on the lower landing from the Appellant. Id. Mr. Kirkland
managed to punch [Appellant] multiple times in the face.
Appellant responded by swinging his knife towards Mr. Kirkland,
resulting in the Appellant haphazardly and inadvertently stabbing
Mr. Giles in the forearm. Id. [] Appellant became enraged by
this mistake and yelled[,] “you made me hit my cousin.” Id. at
p. 72, Line 1.
Ms. Giles encouraged Mr. Kirkland to leave, and he
subsequently exited the house, but he taunted Appellant to
continue the fight outside. Id. Once outdoors, the Appellant
chased Mr. Kirkland around a parked car. Id. Appellant was still
in possession of the knife and eventually managed to stab Mr.
Kirkland in the upper lip, slice his tongue in two, and effectively
knock out multiple teeth, leaving blood splatters on the car. Id.
Immediately after stabbing Mr. Kirkland in the face, the Appellant
fled the area. Id. On September 27, 2019, Appellant [] turned
himself in to the police and was arrested. Id.
Trial Court Opinion, 7/29/22, at 1-2.
The Commonwealth charged Appellant, at two separate dockets, with
crimes related to the assaults on Mr. Giles and Mr. Kirkland. Following a
November 8, 2021, bench trial, the trial court acquitted Appellant of all
charges relating to Mr. Giles, while convicting Appellant of the above charges
relating to Mr. Kirkland. On March 15, 2022, the trial court sentenced
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Appellant to an aggregate 4 – 8 years in prison, with credit for time-served.
This timely appeal followed.2
Appellant presents two issues for review:
1. Whether the trial court abuse[d] its discretion in failing to
grant a new trial because the verdict was against the weight of
the evidence?
2. Whether the trial court abuse[d] its discretion or erred in
finding [Appellant] guilty when the evidence was insufficient to
sustain the verdict because the Commonwealth failed to disprove
beyond a reasonable doubt [Appellant’s] self-defense claim?
Appellant’s Brief at 6.
In his first issue, Appellant claims the verdict was against the weight of
the evidence because “witnesses gave less than credible testimony[.]” Id. at
15. Appellant specifically contends the trial court erred in crediting the
testimony of Ms. Giles, Mr. Giles, and Mr. Kirkland; the three witnesses
testified that Appellant stabbed Mr. Kirkland after following him outside.
Appellant’s Brief at 22-27; see also N.T., 11/8/21, at 37-41; 73-74; 103-05.
Appellant maintains the trial court should have credited Appellant’s testimony
that he acted in self-defense in stabbing Mr. Kirkland inside the home.
Appellant’s Brief at 26-27; N.T., 11/8/21, at 145-46, 173.
The Commonwealth argues Appellant waived his weight claim because
although Appellant “asserts that he filed a ‘post-trial motion’ after the trial,
but before the sentencing, [] this alleged motion does not appear in the record
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2 Appellant and the trial court complied with Pa.R.A.P. 1925.
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or on the docket.” Commonwealth Brief at 6. In the alternative, the
Commonwealth avers Appellant’s “argument the court erred by not crediting
[Appellant’s] testimony over that of three witnesses and photographic
evidence establishing his guilt would not entitle him to relief.” Id.
“A weight of the evidence claim concedes that the evidence is sufficient
to sustain the verdict but seeks a new trial on the grounds that the evidence
was so one-sided or so weighted in favor of acquittal that a guilty verdict
shocks one’s sense of justice.” In re A.G.C., 142 A.3d 102, 109 (Pa. Super.
2016) (citation omitted). “Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.” Commonwealth. v. Widmer,
744 A.2d 745, 753 (Pa. 2000) (citation omitted).
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination of whether the
verdict is against the weight of the evidence.
Id. (citation omitted). This standard applies even when the trial court is the
finder of fact. See Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.
Super. 2016) (reviewing trail court’s exercise of discretion in weight claim
arising from a non-jury verdict).
A challenge to the weight of the evidence
must be preserved either in a post-sentence motion, by a written
motion before sentencing, or orally prior to sentencing.
Pa.R.Crim.P. 607(A)(1)-(3). “The purpose of this rule is to make
it clear that a challenge to the weight of the evidence must be
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raised with the trial judge or it will be waived.” Comment to
Pa.R.Crim.P. 607. If an appellant never gives the trial court the
opportunity to provide relief, then there is no discretionary act
that this Court can review. Commonwealth v. Thompson, 93A.3d 478, 491 (Pa. Super. 2014).
Commonwealth v. Jones, 191 A.3d 830, 834-35 (Pa. Super. 2018)
(footnotes omitted, emphasis added).
Appellant claims he filed a post-trial motion challenging the weight of
the evidence on February 16, 2022. Appellant’s Brief at 22. This motion is
not listed on the docket or contained in the certified record. However,
Appellant argued a motion for extraordinary relief immediately prior to
sentencing. Appellant emphasized the insufficiency of the evidence, but
stated “there was no credible evidence … [Appellant] stabbed Mr. Kirkland
outside.” N.T., 3/15/22, at 4-5; see also id. at 4-21. As this statement is
the crux of Appellant’s weight argument, we decline to find waiver.
In rejecting Appellant’s argument, the trial court explained:
The verdict was not so contrary to the evidence as to shock one’s
sense of justice. Though Mr. Kirkland initiated the first fight inside
[] home, witnesses testified that Mr. Kirkland exited the property
before the second altercation, but Appellant followed Mr. Kirkland
outside. N.T., Waiver Trial, 11/08/21. The weight of the evidence
shows Appellant relinquished the opportunity to retreat. Id. The
majority of witnesses, including Mr. Giles, testified that Appellant
and Mr. Kirkland were outside the property during the [] stabbing.
Id. Mr. Giles testified that Appellant was “running around the
car,” “behind [Mr. Kirkland].” Id. p. 73 at Lines 6-7, 18-19.
Additionally, there was photo evidence of blood splatters on the
interior of the car door, indicating that Mr. Kirkland was stabbed
outside by the car. Commonwealth’s Exhibit 4D. The
corroboration of testimonial and physical evidence demonstrates
the Appellant’s claim lacks merit and the [c]ourt’s verdict should
not be disturbed.
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Trial Court Opinion, 7/29/22, at 5.
The trial court credited the Commonwealth witnesses’ testimony that
Appellant pursued Mr. Kirkland and stabbed him outside the home; the trial
court rejected Appellant’s testimony that he remained in the home and
stabbed Mr. Kirkland in self-defense. See id. As factfinder, the trial court,
“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. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016). Thus,
the trial court acted within its discretion in finding the verdict was not contrary
to the weight of the evidence. Appellant’s first issue does not merit relief.
In his second issue, Appellant challenges the sufficiency of the evidence.
When reviewing a sufficiency challenge, we determine “whether the evidence
at trial, and all reasonable inferences derived therefrom, when viewed in the
light most favorable to the Commonwealth as verdict winner, are sufficient to
establish all elements of the offense beyond a reasonable doubt.”
Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation omitted).
“Further, a conviction may be sustained wholly on circumstantial evidence,
and the trier of fact—while passing on the credibility of the witnesses and the
weight of the evidence—is free to believe all, part, or none of the evidence.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citation
omitted). “In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.” Id.-6-
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Appellant’s argument regarding sufficiency is identical to his argument
regarding the weight of the evidence. Appellant’s Brief at 27; see id. at 20-
27. Appellant maintains the trial court improperly credited the Commonwealth
witnesses who testified that Appellant stabbed Mr. Kirkland after pursuing him
outside. Id. at 27. Appellant provides no additional argument to support his
claim that he was defending himself when he stabbed Mr. Kirkland. Thus,
Appellant’s claim goes to the weight, not the sufficiency of the evidence. See
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa. Super. 2007)
(finding claim that jury should not have believed the victim’s version of events
goes to the weight of the evidence, not sufficiency).
Furthermore,
a claim of self-defense (or justification, to use the term employed
in the Crimes Code) requires evidence establishing three
elements: (a) [that 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 against the victim to prevent
such harm; (b) that the defendant was free from fault in provoking
the difficulty which culminated in the slaying; and (c) that the
[defendant] did not violate any duty to retreat. Although the
defendant has no burden to prove self-defense ... before the
defense is properly in issue, there must be some evidence, from
whatever source, to justify such a finding. Once the question is
properly raised, the burden is upon the Commonwealth to prove
beyond a reasonable doubt that the defendant was not acting in
self-defense. The Commonwealth sustains that burden of
negation if it proves any of the following: [1] that the [defendant]
was not free from fault in provoking or continuing the difficulty
which resulted in the [injury]; [2] that the [defendant] did not
reasonably believe that he was in imminent danger of death or
great bodily harm, and that it was necessary to kill in order to
save himself therefrom; or [3] that the [defendant] violated a
duty to retreat or avoid the danger.
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Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (citations
omitted; some brackets in original); see also 18 Pa.C.S.A. § 505 (use of force
in self-protection). “If the Commonwealth establishes any one of these three
[negation] elements beyond a reasonable doubt, then the conviction is
insulated from a defense challenge to the sufficiency of the evidence where
self-protection is at issue.” Commonwealth v. Burns, 765 A.2d 1144, 1149
(Pa. Super. 2000) (citation omitted).
As the trial court explained,
this case involves two separate incidents between Appellant and
Mr. Kirkland. In the first incident, Mr. Kirkland provoked the
Appellant’s use of defensive force when Mr. Kirkland aggressed
the Appellant and punched him in the face multiple times while on
the stairs. N.T., Waiver Trial, 11/08/21, p. 145. In response to
being punched multiple times, the Appellant swung his knife and
accidentally stabbed Mr. Giles in the forearm. Id. The [trial c]ourt
found that the Appellant reasonably believed that this use of
deadly force was necessary to avoid serious bodily injury and that
the Appellant could not retreat from this first incident with
complete safety. Id. at p. 196. In accordance with these findings,
the Appellant was found not guilty for Mr. Giles’ injuries. Id. at
p. 195.
Witnesses testified that the Appellant yelled out “you made
me hit my cousin,” indicating that after the Appellant accidentally
stabbed his cousin, he became enraged. Id. at p. 72, Line 1.
After the first stabbing, Mr. Kirkland taunted the Appellant to
continue the fight onto the street and vacated the property. Id.
at p. 100. When Mr. Kirkland left the home, this provided
opportunity for the Appellant to retreat from the altercation. Once
Mr. Kirkland separated himself from the Appellant by exiting the
house, the Appellant could no longer claim self-defense and any
continued use of force was unjustified. The evidence proved,
however, Appellant pursued Mr. Kirkland outside. Mr. Giles
testified that Appellant seemed to be running after Mr. Kirkland
around the car. Id. at p. 73. Mr. Kirkland also testified that he
was stabbed on the street, by the car. Id. at p. 105. Additionally,
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photo evidence corroborates the stabbing at the car.
Commonwealth’s Exhibit 4D. With the second incident occurring
outside, the Appellant had ample opportunity to run away from
any engagement with Mr. Kirkland and it therefore cannot be said
that he could not retreat with complete safety.
Trial Court Opinion, 7/29/22, at 7-8.
The trial court, sitting as factfinder, was free to believe all, part, or none
of the evidence. Miller, 172 A.3d at 640. It is not the role of this Court to
reweigh the evidence. Id. Accordingly, Appellant’s second issue does not
merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2023
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