Com. v. Wimbush, E. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EARL WIMBUSH
Appellant No. 1312 WDA 2013
Appeal from the Judgment of Sentence July 20, 2011
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000787-2010
BEFORE: PANELLA, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 13, 2014
Appellant, Earl Wimbush, appeals from the judgment of sentence
entered on July 20, 2011, in the Court of Common Pleas of Allegheny
County. After careful review, we affirm.
On the evening of October 31, 2009, Wimbush and his friend, Andre
Peters were patronizing a club known as “Dreams.” N.T., Trial, 4/26/11, at
204-205. In the early morning hours of November 1, 2009, the men left the
club and went to the Cornwall housing development. See id., at 205.
According to witness accounts, the victim, Timothy Bottoms, was walking
down the street when a verbal altercation ensued with Wimbush, also known
as “E-Jerk.” Id., at 207. The testimony adduced at trial varies in its rendition
of the events which transpired thereafter. Nevertheless, of importance is the
fact that Wimbush admitted he shot and killed Bottoms. Following a non-jury
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trial on April 26, 2011, Wimbush was convicted of third-degree murder,
firearms not to be carried without a license, and recklessly endangering
another person. Wimbush was subsequently sentenced to a period of not
less than 12 nor more than 24 years’ imprisonment on the third-degree
murder conviction and a consecutive term of 3½ to 7 years’ imprisonment
for the firearms violation. No further penalty was imposed. This appeal
followed.
On appeal, Wimbush raises a single issue: whether the evidence was
sufficient to support Wimbush’s conviction for third degree murder, or
whether it showed he acted in self-defense. Wimbush asserts that the
evidence shows that he acted in self-defense, making it impossible for him
to have committed third degree murder.
“The well-settled test for sufficiency is whether, viewed in the light
most favorable to the Commonwealth, the evidence presented at trial and all
reasonable inferences to be drawn therefrom proves beyond a reasonable
doubt all of the elements of the crime(s) with which the accused is charged.”
Commonwealth v. Peay, 806 A.2d 22, 27 (Pa. Super. 2002) (citation
omitted).
Third degree murder is defined in the Crimes Code as murder that is
not first or second degree murder. See 18 PA.CONS.STAT.ANN. § 2502(c).
“The crime of third degree murder under the Crimes Code incorporates the
common law definition of malice.” Commonwealth v. Thomas, 527 Pa.
511, 514, 594 A.2d 300, 301 (1991) (citation omitted).
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[T]o convict a defendant of the offense of third-degree murder,
the Commonwealth need only prove that the defendant killed
another person with malice aforethought. This Court has long
held that malice “comprehends not only a particular ill-will, but .
. . [also a] wickedness of disposition, hardness of heart,
recklessness of consequences, and a mind regardless of social
duty, although a particular person may not be intended to be
injured.”
… the presence of a deliberate intent to kill while a prerequisite
for murder is not required for murder [in the third degree]” in
this Commonwealth. Instead, the defendant need only exhibit
malice, which as explained above, includes “a class of wanton
and reckless conduct [that] manifests …an extreme indifference
to the value of human life,” but does not necessarily manifest an
intent to kill. Indeed, our courts have consistently held that
malice is present under circumstances where a defendant did not
have an intent to kill, but nevertheless displayed a conscious
disregard for “an unjustified and extremely high risk that his
actions might cause death or serious bodily harm.’”
Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363-364 (Pa.
Super. 2005) (citations omitted). “The Commonwealth need not prove
motive in order to establish the existence of malice. The use of a deadly
weapon upon a vital part of the victim’s body is more than sufficient to
provide the element of malice.” Commonwealth v. D’Ambro, 500 Pa. 303,
308, 456 A.2d 140, 143 (1983) (citations omitted).
There is no doubt that the Commonwealth proved in this case that
Wimbush killed the victim with malice aforethought, as Wimbush admitted
that he shot Bottoms at a relatively close range, multiple times in the chest
and heart, a vital part of the victim’s body, which resulted in almost
immediate death. Wimbush claims, however, that since he asserted at trial
that he was acting in self-defense, the required malice was not present.
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While “[a] successful claim of self-defense negates the malice element
of third degree murder,” Commonwealth v. Marks, 704 A.2d 1095, 1099
(Pa. Super. 1997) (citation omitted), there must be some evidence to justify
a finding of self-defense. Commonwealth v. Torres, 564 Pa. 219, 224, 766
A.2d 342, 345 (2001).
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.
See Commonwealth v. Samuel, 527 Pa. 298, 303, 590 A.2d
1245, 1247 (1991); Commonwealth v. Upsher, 497 Pa. 621,
624, 444 A.2d 90, 91 (1982). 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. See Commonwealth
v. Black, 474 Pa. 47, 53, 376 A.2d 627, 630 (1977).
Id., 564 Pa. at 223-224, 766 A.2d at 345. Where a person has used deadly
force against another, the evidence justifying a finding of self-defense has
been described as follows:
[I]t must be shown that a) the actor was free from fault in
provoking or continuing the difficulty which resulted in the use of
deadly force; b) the actor must have reasonably believed that he
was in imminent danger of death or serious bodily injury, and
that there was a necessity to use such force in order to save
himself or others therefrom; and c) the actor did not violate any
duty to retreat or to avoid the danger.
Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172, 1174 (1995)
(citation omitted).
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Here, Wimbush testified in his own defense at trial that his actions in
shooting Bottoms were in self-defense. Particularly, Wimbush testified that
Bottoms was “real angry like” when he yelled “E-Jerk’s a rat, what’chu going
with that nigga, man. I’m going to merk that nigga.” N.T., Trial, 4/26/11, at
207. Wimbush told the court that Bottoms “started charging, reaching, going
for his pants, like reaching for a gun” and “when he [got] like a couple feet
away from [him]” “he pull[ed] out the gun, and start[ed] firing till [Bottoms]
turn[ed] around and r[an] away.” Id., at 208. According to Wimbush,
Bottoms was “screaming” and he believed that Bottoms “was going to kill
[him]” because “[he] seen him shoot somebody.” Id., at 208-209. Wimbush
stated that he “couldn’t leave like” because “there was nowhere for [him] to
go” and that Bottoms would have shot him. Id., at 212. Wimbush claims he
fired shots within 3 to 4 feet of Bottoms because he “was trying to save [his]
life.” Id.Once the issue of self-defense was properly before the fact-finder, the
burden shifted to the Commonwealth to prove beyond a reasonable doubt
that Wimbush was not in fact acting in self-defense. See Commonwealth
v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008). The Commonwealth
sustains this burden if it establishes at least one of the following: (1) the
accused did not reasonably believe that he was in danger of death or serious
bodily injury; (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. See Commonwealth v. McClendon, 874 A.2d 1223, 1229 (Pa.
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Super. 2005). Although the Commonwealth is required to disprove a claim
of self-defense arising from any source beyond a reasonable doubt, the trier
of fact is not required to believe the testimony of a defendant who claims he
was acting in self-defense. See Bullock, 948 A.2d at 824. It remains the
province of the trier of fact to determine whether the defendant’s belief was
reasonable, whether he was free of provocation, and whether he had no
duty to retreat. See McClendon, 874 A.2d at 1229-1230.
As such, the trial court, sitting as the trier of fact was free to make its
own credibility determination concerning the evidence presented. It plainly
rejected Wimbush’s own self-serving testimony—that was in stark contrast
to the evidence presented by the Commonwealth. While Wimbush may, in
his own mind, have been in reasonable fear that Bottoms may shoot him
based upon his threat that he was going to “merk” him coupled with
Bottoms past criminality, those apprehensions simply did not come to
fruition that day. Rather, the testimony established that Wimbush was the
sole attacker, firing multiple shots at close range, killing Bottoms and
striking his friend, Andre Peters, whom was attempting to flee from the path
of the bullets, in the leg. See N.T. Trial, 4/26/11, at 130.
Specifically, the evidence established that Wimbush and Bottoms were
engaged in a heated verbal altercation. The two men were “having words”
when Wimbush walked up to Bottoms and “just started shooting.” Id., at
54-56. Witnesses did not actually see a weapon; however, they heard
gunshots and saw sparks near Wimbush’s hand. See id., at 57. Even after
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Bottoms attempted to flee, Wimbush continued to fire at him. There was
absolutely no evidence that Bottoms possessed a gun at the time of the
shooting. This clearly negates any notion that Wimbush acted in self-
defense.
As such, we agree with the trial court’s assessment that the
Commonwealth adequately demonstrated that Wimbush did not reasonably
believe that he was in danger of death or serious bodily injury at the time of
the shooting.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2014
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