Com. v. White, Z. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZAHMIR WHITE :
:
Appellant : No. 3003 EDA 2022
Appeal from the PCRA Order Entered November 10, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004999-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED AUGUST 8, 2023
Appellant, Zahmir White, appeals from the order of the Court of
Common Pleas of Philadelphia County (trial court) that dismissed his first
petition filed under the Post Conviction Relief Act (PCRA)1 without a hearing.
After careful review, we affirm.
On April 1, 2018, Appellant shot and killed a teenager (Victim 1) and
shot at one of his friends (Victim 2) on South Street in Philadelphia,
Pennsylvania. Trial Court Opinion, 1/8/20, at 2-3. On April 18, 2019,
Appellant was convicted by a jury of voluntary manslaughter for killing Victim
1, attempted murder and aggravated assault for shooting at Victim 2, reckless
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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endangerment, carrying a firearm without a license, carrying a firearm on
public streets in Philadelphia, and possession of an instrument of crime, and
was acquitted of first-degree murder and third-degree murder. N.T. Trial,
4/18/19, at 79-84; Verdict Report.
On June 21, 2019, the trial court sentenced Appellant to an aggregate
term of 25 to 50 years’ incarceration. N.T. Sentencing at 70-71; Sentencing
Order. Appellant’s trial counsel filed a timely post-sentence motion seeking
only reconsideration of his sentence, which the trial court denied on October
8, 2019. Appellant filed a timely appeal from his judgment of sentence, in
which his appellate counsel challenged only the length of his sentence.
Commonwealth v. White, No. 3186 EDA 2019, slip op. at 3-4 (Pa. Super.
November 6, 2020). On November 6, 2020, this Court affirmed Appellant’s
judgment of sentence. Id. at 2, 13. Appellant filed a petition for allowance
of appeal, which the Pennsylvania Supreme Court denied on March 9, 2021.
Commonwealth v. White, 250 A.3d 470 (Pa. 2021).
On March 8, 2022, Appellant filed a timely counseled PCRA petition
asserting that his trial counsel was ineffective for failing to seek a new trial on
the ground that the verdict was against the weight of the evidence in his post-
sentence motion and that his appellate counsel was ineffective for failing to
appeal his convictions on sufficiency of the evidence grounds. On October 21,
2022, the trial court issued a notice pursuant to Pa.R.Crim.P. 907 of its intent
to dismiss the PCRA petition without a hearing on the grounds that the claims
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that counsel failed to assert lacked merit and would have been unsuccessful.
Rule 907 Notice. Appellant did not file a response to the trial court’s Rule 907
notice. On November 10, 2022, the trial court entered an order dismissing
Appellant’s PCRA petition on those grounds. Trial Court Order, 11/10/22; Trial
Court Opinion, 2/7/23, at 5-11. This timely appeal followed.
Appellant raises two issues in this appeal: 1) whether the trial court
erred in dismissing his claim that appellate counsel was ineffective for failing
argue in his direct appeal that the evidence was insufficient to prove voluntary
manslaughter, attempted murder, aggravated assault, and reckless
endangerment; and 2) whether the trial court erred in dismissing his claim
that trial counsel was ineffective for failing to assert in his post-sentence
motion that Appellant’s convictions of those offenses were against the weight
of the evidence.2 Our review of these issues is limited to determining whether
the record supports the trial court’s determinations and whether its decision
is free of legal error. Commonwealth v. Bishop, 266 A.3d 56, 62 (Pa. Super.
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2 Appellant argues these two issues in the opposite order. We have reordered
them for ease of disposition. Appellant does not clearly state in his statement
of questions presented which convictions he claims should have been
challenged by his counsel, but discusses only the offenses of voluntary
manslaughter, attempted murder, aggravated assault, and reckless
endangerment in his argument. Appellant therefore has not asserted any
claims of ineffectiveness of trial or appellate counsel with respect to his
firearms convictions or his possession of an instrument of crime conviction
and we need not consider the sufficiency or weight of the evidence with
respect to those convictions.
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2021); Commonwealth v. Ligon, 206 A.3d 515, 518 (Pa. Super. 2019);
Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018).
Both of Appellant’s PCRA claims asserted ineffective assistance of
counsel. To be entitled to relief under the PCRA on a claim of ineffective
assistance of counsel, the defendant must prove: 1) that the underlying claim
is of arguable merit; 2) that counsel had no reasonable basis for his action or
inaction; and 3) that he suffered prejudice as a result of counsel’s action or
inaction. Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015); Bishop,
266 A.3d at 62; Presley, 193 A.3d at 442. The defendant must satisfy all
three elements of this test to obtain relief under the PCRA. Mason, 130 A.3d
at 618; Bishop, 266 A.3d at 62; Ligon, 206 A.3d at 519.
Appellant’s claim that appellate counsel was ineffective for failing to
raise sufficiency of the evidence in his direct appeal fails because the
underlying claim that the evidence was insufficient was without arguable
merit. Evidence is sufficient to support a conviction, if, viewed in the light
most favorable to the Commonwealth as the verdict winner, it is sufficient to
enable the jury to find every element of the crime beyond a reasonable doubt.
Commonwealth v. Reid, 99 A.3d 427, 469 (Pa. 2014); Commonwealth v.
Tucker, 143 A.3d 955, 964 (Pa. Super. 2016); Commonwealth v.
Lawrence, 960 A.2d 473, 477 (Pa. Super. 2008). Where the record shows
that evidence was introduced at trial that was sufficient to prove all of the
elements of the offenses in question, a challenge to sufficiency of the evidence
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is without arguable merit and counsel cannot be found ineffective for failing
to raise that claim. Lawrence, 960 A.2d at 478.
Here, the evidence at trial showed that Appellant and a friend of his
encountered Victim 1, Victim 2, another friend of Victim 1, and Victim 1’s
cousin on South Street in the late afternoon of April 1, 2018, that Victim 2 and
Victim 1’s other friend got into a verbal altercation with Appellant, and that
Appellant pulled out a gun. N.T. Trial, 4/16/19, at 97-103, 107-28, 136-37,
159-60, 184-97, 225-27, 230-31, 239; N.T. Trial, 4/17/19, at 84-85, 127-31,
134. After Appellant pulled out the gun, Victim 1’s cousin and other friend ran
into a store, Victim 1 and Victim 2 ran down the street away from Appellant,
and Appellant fired multiple shots at Victim 1 and Victim 2 at torso level. N.T.
Trial, 4/16/19, at 23, 26, 32, 35-38, 68, 128-31, 160, 188, 190, 197-99, 227,
230-33, 236-38, 240-43; N.T. Trial, 4/17/19, at 71, 119-20, 135, 137-38;
Commonwealth Ex. 66. One the shots fired by Appellant hit Victim 1 in the
lower back and caused his death. N.T. Trial, 4/16/19, at 23, 25-29, 32, 35-
40, 130-31, 199, 233, 237-38; N.T. Trial, 4/17/19, at 136, 138. This evidence
was sufficient to prove all of the elements of voluntary manslaughter,
attempted murder, aggravated assault, and reckless endangerment.
The elements of the offense of voluntary manslaughter are that the
defendant either killed a person without justification while acting under a
sudden and intense passion resulting from serious provocation or intentionally
or knowingly killed a person under an unreasonable belief that deadly force
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was necessary to protect himself. 18 Pa.C.S. § 2503(a), (b);
Commonwealth v. Weston, 749 A.2d 458, 462 (Pa. 2000). The above
evidence amply proves that Appellant intentionally or knowingly killed Victim
1. Firing a gun directly at a vital part of a person’s body is sufficient to prove
specific intent to kill. Commonwealth v. Holt, 273 A.3d 514, 529-30, 551-
52 (Pa. 2022); Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015).
Although Appellant testified that he drew his gun and fired it because he saw
Victim 2 attempt to pull a gun out of his backpack and was in fear for his life,
N.T. Trial, 4/17/19, at 120, 133-36, there had been no physical fighting and
there was other evidence that no one else involved in the argument had a
gun, made any physically threatening motion, or prevented Appellant from
leaving. N.T. Trial, 4/16/19, at 117-18, 121-22, 127-28, 132-33, 159-60,
195-97, 203-04, 240, 243; N.T. Trial, 4/17/19, at 71, 95-96. In addition, the
evidence showed that Victim 1 and Victim 2 were running away when
Appellant shot at them. N.T. Trial, 4/16/19, at 26, 35-36, 240-43;
Commonwealth Ex. 66. The evidence was therefore also sufficient to prove
that Appellant’s belief that deadly force was necessary was unreasonable.
A conviction for attempted murder requires the Commonwealth to prove
two elements: 1) that the defendant had the specific intent to kill and 2) that
he took a substantial step towards that goal. Commonwealth v. Blakeney,
946 A.2d 645, 652 (Pa. 2008); Ligon, 206 A.3d at 519. The evidence that
Appellant fired his gun at Victim 2’s torso is sufficient to prove both of these
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elements. Commonwealth v. Cannavo, 199 A.3d 1282, 1292 (Pa. Super.
2018) (firing a gun at people at abdominal height showed both specific intent
to kill and that the defendant took a substantial step toward committing
murder); Commonwealth v. Jackson, 955 A.2d 441, 443-45 (Pa. Super.
2008) (evidence that defendant fired gun at one person without hitting them
and pointed the gun at second person was sufficient to support attempted
murder conviction).
This evidence was a fortiori sufficient to support Appellant’s aggravated
assault and reckless endangerment convictions. An attempt to cause serious
bodily injury to another person constitutes aggravated assault, regardless of
whether any injury occurred, and the elements of that offense are that the
defendant intended to cause such injury and took a substantial step to do so.
18 Pa.C.S. § 2702(a)(1); Commonwealth v. Steele, 234 A.3d 840, 845-46
(Pa. Super. 2020); Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa.
Super. 2001). To prove reckless endangerment, the Commonwealth is
required to prove only that the defendant recklessly engaged in conduct that
placed or may have placed another person in danger of death or serious bodily
injury. 18 Pa.C.S. § 2705; Steele, 234 A.3d at 847. Proof that the defendant
fired a loaded gun at another person is sufficient to prove both attempt to
cause serious bodily injury and reckless conduct that placed another person
in danger of death or serious bodily injury, even though the defendant did not
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injure the victim. Steele, 234 A.3d at 846-47; Commonwealth v. Hartzell,
988 A.2d 141, 143-44 (Pa. Super. 2009); Galindes, 786 A.2d at 1012.
Appellant argues that the evidence was nonetheless insufficient to prove
these crimes because he acted in self-defense and because the conviction of
voluntary manslaughter for the killing of Victim 1, rather than first-degree
murder or third-degree murder, is allegedly inconsistent with his attempted
murder and aggravated assault convictions for shooting at Victim 2 and his
reckless endangerment conviction. Neither of these arguments has merit.
Self-defense is a complete defense to a crime involving use of deadly
force only if the following three elements are all present: 1) the defendant
reasonably believed that he was in imminent danger of death or serious injury
and that it was necessary to use deadly force to prevent such harm; 2) the
defendant did not provoke the threat; and 3) the defendant did not violate a
duty to retreat. 18 Pa.C.S. § 505(b)(2); Commonwealth v. Sepulveda, 55
A.3d 1108, 1124 (Pa. 2012); Commonwealth v. Jones, 271 A.3d 452, 458
(Pa. Super. 2021); Steele, 234 A.3d at 846. Where the defendant has
introduced evidence of self-defense, the burden is on the Commonwealth to
disprove the self-defense claim by proving that at least one of those three
elements is absent. Sepulveda, 55 A.3d at 1124; Commonwealth v.
Green, 273 A.3d 1080, 1085 (Pa. Super. 2022); Jones, 271 A.3d at 458. If
the Commonwealth proves only that the defendant’s belief that he was in
imminent danger was unreasonable, self-defense is not a defense to crimes
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other than murder, but the defendant can only be convicted of voluntary
manslaughter, rather than first-degree or third-degree murder, for a killing
committed under that unreasonable belief. 18 Pa.C.S. § 2503(b); Green, 273
A.3d at 1085-89; Cannavo, 199 A.3d at 1290-92.
The jury 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); Jones, 271
A.3d at 458; Commonwealth v. Chine, 40 A.3d 1239, 1243 (Pa. Super.
2012). Disbelief of the defendant’s testimony, however, is not sufficient by
itself to satisfy the Commonwealth’s burden to disprove self-defense absent
some evidence negating self-defense. Commonwealth v. Torres, 766 A.2d
342, 345 (Pa. 2001); Jones, 271 A.3d at 459; Commonwealth v. Ward,
188 A.3d 1301, 1304 (Pa. Super. 2018).
Here, as noted above, the evidence that no one other than Appellant
had a gun and that Appellant shot at his victims as they were running away is
sufficient to prove that Appellant’s belief that he needed to use deadly force
was unreasonable. Indeed, that evidence would be sufficient to disprove
Appellant’s claim that he actually believed that Victim 2 had a gun and was in
fear for his life when he shot Victim 1 and shot at Victim 2. A sufficiency of
the evidence argument based on self-defense would therefore be without
arguable merit and counsel cannot be ineffective for failure to raise it.
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Appellant’s second argument fails for two reasons. First, contrary to
Appellant’s contention, inconsistent verdicts do not render sufficient evidence
insufficient or otherwise invalidate a conviction, unless commission of an
offense of which the defendant was acquitted is an essential statutory element
of the offense of which the defendant was convicted. Commonwealth v.
Baker-Myers, 255 A.3d 223, 229-35 (Pa. 2021); Commonwealth v.
Moore, 103 A.3d 1240, 1246-50 (Pa. 2014); Commonwealth v. Knox, 219
A.3d 186, 197 (Pa. Super. 2019). Nothing in the charges concerning the
killing of Victim 1, for which Appellant was acquitted of first-degree and third-
degree murder and convicted of voluntary manslaughter, is an essential
element of any of the other offenses of which Appellant was convicted. The
voluntary manslaughter verdict is therefore irrelevant to the validity of
Appellant’s attempted murder, aggravated assault, and reckless
endangerment convictions and cannot make the evidence insufficient to
support those convictions. Moore, 103 A.3d at 1250; Knox, 219 A.3d at 197.
Second, the verdicts are not even inconsistent. The voluntary
manslaughter offense of which Appellant was convicted requires proof that the
defendant “intentionally or knowingly kill[ed].” 18 Pa.C.S. § 2503(b); see
also Weston, 749 A.2d at 462. That mens rea is completely consistent with
the mens rea for attempted murder of specific intent to kill and the mens rea
for Appellant’s aggravated assault and reckless endangerment convictions of
intent to cause serious bodily injury and recklessness.
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Appellant’s remaining claim of ineffectiveness of counsel, that trial
counsel was ineffective for failure to seek a new trial on weight of the evidence
grounds in his post-sentence motion, is without merit because he cannot show
prejudice. To satisfy the prejudice element of an ineffective assistance of
counsel claim, the defendant must show that there is a reasonable probability
that, but for counsel’s error, the result of the proceeding would have been
different. Mason, 130 A.3d at 618; Commonwealth v. Reaves, 923 A.2d
1119, 1127 (Pa. 2007); Commonwealth v. Postie, 200 A.3d 1015, 1023
(Pa. Super. 2018) (en banc). Because trial counsel’s alleged error here was
a failure to raise an issue by post-sentence motion, the prejudice element
requires that the defendant show a reasonable probability that relief would
have been granted if the motion had been filed. Reaves, 923 A.2d at 1131-
32; Presley, 193 A.3d at 444-45.
The trial court properly concluded that Appellant could not show a
reasonable probability that a weight of the evidence motion would have been
granted. A new trial may be granted on the ground that the verdict is against
the weight of the evidence only where the verdict was so contrary to the
evidence that it shocks one’s sense of justice. Houser, 18 A.3d at 1136;
Bishop, 266 A.3d at 67-68; Knox, 219 A.3d at 198.
Appellant argues that the jury’s voluntary manslaughter, attempted
murder, aggravated assault, and reckless endangerment verdicts were against
the weight of the evidence because the evidence showed that his actions were
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reasonable self-defense and because it was undisputed that Appellant had a
reputation for being peaceful and law-abiding. Those arguments are without
merit. The trial court concluded that a motion for a new trial on weight of the
evidence grounds would have been unsuccessful because there was
overwhelming evidence refuting Appellant’s self-defense claim and showing
that any belief that he needed to use deadly force was unreasonable. Trial
Court Opinion, 2/7/23, at 8-11. That conclusion, by the same judge who
presided over Appellant’s trial, is supported by the record. As discussed
above, Appellant’s claim that Victim 2 had a gun was contradicted by other
witnesses. N.T. Trial, 4/16/19, at 132-33, 203-04, 240, 243. Moreover, the
video evidence showed that the individuals at whom Appellant fired his gun
were already running away from him before he shot at them. Commonwealth
Ex. 66.
The fact that it was stipulated at trial that Appellant has a reputation for
being peaceable and law-abiding, N.T. Trial, 4/17/19, at 187, does not make
the verdict contrary to the evidence. While a jury may find evidence of good
character sufficient by itself to create a reasonable doubt, Commonwealth
v. Weiss, 606 A.2d 439, 442 (Pa. 1992); Commonwealth v. Neely, 561
A.2d 1, 3 (Pa. 1989), such evidence does not require that the jury find a
defendant not guilty, and where, as here, there is ample evidence of guilt, a
guilty verdict is not against the weight of the evidence, despite the defendant’s
good character. Commonwealth v. Fallon, 275 A.3d 1099, 1107-08 (Pa.
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Super. 2022); Commonwealth v. Brown, 48 A.3d 426, 432 (Pa. Super.
2012); Commonwealth v. Price, 616 A.2d 681, 685 (Pa. Super. 1992).
For the foregoing reasons, the trial court correctly concluded Appellant
was not entitled to relief on either of his PCRA claims. Accordingly, we affirm
the trial court’s order dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2023
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