Com. v. McCrea, K. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
KARIM McCREA, :
:
Appellant : No. 2398 EDA 2013
Appeal from the Judgment of Sentence November 16, 2012,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0000429-2011
BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 10, 2015
Karim McCrea (“McCrea”) appeals from the judgment of sentence
entered following his convictions of murder in the first degree and
possessing instruments of crime (“PIC”).1 Following our review, we affirm
McCrea’s convictions but remand for resentencing.
The basic facts underlying these convictions are as follows. On the
evening of June 11, 2010, Elijah Owens (“Victim”) was shot and killed in a
driveway behind 6908 N. 19th Street in the City of Philadelphia. Two men,
Nathaniel Alston and William Grier, saw McCrea shoot Victim. McCrea
immediately fled the scene. The first police officers to respond to the scene
of the crime transported Victim to the hospital, where he was pronounced
dead.
1
18 Pa.C.S.A. §§ 2502(a), 907.
*Retired Senior Judge assigned to the Superior Court.
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At the conclusion of a jury trial, McCrea was convicted of the crimes
mentioned above. The trial court imposed the mandatory sentence of life in
prison on the first-degree murder conviction and a concurrent sentence of
two and a half to five years on the PIC conviction. McCrea did not file post-
sentence motions or a direct appeal. He subsequently filed a petition
pursuant to the Post-Conviction Relief Act (“PCRA”), seeking the
reinstatement of his direct appeal rights.2 The trial court granted his petition
and this appeal followed.
McCrea presents two issues for our review:
1. Is [McCrea] entitled to an arrest of judgment of
all charged where the verdict is not supported by
sufficient evidence?
2. Is [McCrea] entitled to a new trial on all charges
where the verdict is against the weight of the
evidence?
McCrea’s Brief at 3.
We begin with the second issue, in which McCrea attempts to raise of
claim that the verdict was against the weight of the evidence. “[A] weight of
the evidence claim must be preserved either in a post-sentence motion, by a
written motion before sentencing, or orally prior to sentencing. Failure to
properly preserve the claim will result in waiver, even if the trial court
addresses the issue in its opinion.” Commonwealth v. Thompson, 93
2
McCrae did not seek to file a post-sentence motion nunc pro tunc. See
Counseled [PCRA] Petition Seeking to Reinstate Appellate Rights[] Nunc Pro
Tunc Due to Administrative Oversight in Law Office, 5/7/13.
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A.3d 478, 490 (Pa. Super. 2014) (internal citations omitted); see also
Pa.R.Crim.P. 607. The record reveals that McCrea did not file a post-
sentence motion or otherwise preserve this issue in the court below.
Accordingly, he has waived it for purposes of appeal.
In his remaining issue, McCrea argues that the evidence was
insufficient to support his convictions. When reviewing a sufficiency of the
evidence claim, “we must determine whether the evidence admitted at trial,
as well as all reasonable inferences drawn therefrom, when viewed in the
light most favorable to the verdict winner, are sufficient to support all
elements of the offense.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa.
Super. 2013) (quoting Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.
Super. 2011)). When performing this review, “we may not reweigh the
evidence or substitute our own judgment for that of the fact finder.” Id.The Commonwealth may rely solely on circumstantial evidence to support a
conviction, and 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. Hutchinson, 947 A.2d
800, 806 (Pa. Super. 2008).
“A criminal homicide constitutes murder of the first degree when it is
committed by an intentional killing.” 18 Pa.C.S.A. § 2502(a).
To sustain a conviction for first-degree murder, we
must conclude that the evidence established the
following three elements: (1) that a human being
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was unlawfully killed; (2) that the accused is
responsible for the killing; and (3) that the accused
acted with a specific intent to kill, i.e., in a willful,
deliberate, premeditated way. The Commonwealth
may sustain its burden to establish each element
with the presentation of wholly circumstantial
evidence. For example, specific intent to kill can be
inferred from the application of deadly force to the
victim’s person.
Commonwealth v. Pruitt, 951 A.2d 307, 313-14 (Pa. 2008) (internal
citations omitted). With regard to PIC, “[a] person commits a misdemeanor
of the first degree if he possesses any instrument of crime with intent to
employ it criminally.” 18 Pa.C.S.A. § 907(a). An instrument of crime is
defined, in relevant part, as “[a]nything used for criminal purposes and
possessed by the actor under circumstances not manifestly appropriate for
lawful uses it may have[,]” 18 Pa.C.S.A. § 907, and includes a firearm used
in the commission of a crime. See Commonwealth v. Stanley, 446 A.2d
583, 588 (Pa. 1982) (holding that where appellant possessed a revolver
when arrested for escape, he possessed an instrument of crime for purpose
of Pa.C.S.A. § 907).
Our review of the evidence of record, in the light most favorable to the
Commonwealth, reveals that on June 11, 2010 at approximately 9:00 in the
evening, Nathaniel Alston was asleep on the back deck of 7009 Georgian
Road in Philadelphia. N.T., 11/14/12, at 163-64. He was woken by the
sound of gunfire. Id. at 165. He immediately ran toward the side of the
porch and as he did so, he looked down and saw McCrae shoot Victim. Id.
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at 165-67. He then watched McCrae and another person run away “up the
driveway.” Id. at 166. Mr. Alston was familiar with McCrea because they
hung around the same neighborhood and because they had attended high
school together. Id. at 161.
Mr. Alston feared that Victim was his girlfriend’s younger brother, and
so after McCrea fled, he ran to check the identify of Victim. Id. at 167-68.
As he did, he came into contact with William Grier, who was also running
toward the scene of the shooting. Id. at 170. Mr. Grier testified that on the
night of the shooting, he was on Georgian Road changing the brakes on a
female friend’s car when he heard gunfire coming from the driveway behind
him. N.T., 11/15/12, at 10, 12. His friend indicated that her little brother
was in the area from which the gunshots came, and so Mr. Grier ran toward
the shots to check on him. Id. at 12. In a statement he gave to the police
four days after the shooting,3 Mr. Grier said that he saw McCrea “with his
hand out and [] saw the spark of the last shot. … [He] saw [Victim] falling
to the ground. He landed on his back.” Id. at 54. According to Mr. Grier,
McCrea then ran down the driveway and looked directly at Mr. Grier as he
did so. Id. at 56.
Within minutes of the shooting, Victim was taken to the hospital by the
police where he was pronounced dead. N.T., 11/14/12, at 94, 97. Victim
3
At trial, Mr. Grier recanted his statement and testified that he did not see
who shot Victim. N.T., 11/15/12, at 15.
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was shot seven times. Id. at 127. Victim was struck in the chest, back,
arms and legs. Id. at 128-144. One shot to Victim’s torso eviscerated
multiple organs, including Victim’s heart, and lodged in Victim’s chest. Id.
at 128. Although this shot alone would have been fatal, the medical
examiner testified that Victim’s death was caused by multiple gunshot
wounds. Id. at 130,157.
We conclude that this evidence is sufficient to establish that McCrea
intentionally shot Victim multiple times in the abdomen, back and
extremities (i.e., that McCrae applied deadly force to Victim’s person), and
that Victim’s death occurred as a result. Accordingly, the evidence is
sufficient to support McCrae’s convictions.
McCrea’s argument to the contrary is based on Mr. Grier’s denial, at
trial, that he saw McCrea shoot Victim and the Commonwealth’s
impeachment of this testimony with the statement that Mr. Grier gave to the
police.4 McCrea argues that because there was nothing to corroborate this
out-of-court statement and because “there was ample reason to disbelieve
the statement[,]” there is insufficient evidence to support his conviction of
murder. McCrea’s Brief at 8-9. There are multiple problems with this
argument. First, McCrea is ignoring Mr. Alston’s testimony, in which he
stated that he also witnessed McCrea shooting Victim. Second, there is no
4
Detective Crone, the officer to whom Mr. Grier gave his statement, also
testified at trial and as part of his testimony, he read Mr. Grier’s entire
statement into evidence. N.T., 11/15/12, at 218-29.
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requirement that the Commonwealth corroborate a witness’s testimony, as it
has long been held that the testimony of a single witness, when believed by
the trier of fact, is sufficient to support a conviction. See Commonwealth
v. Filer, 846 A.2d 139, 141 (Pa. Super. 2004) (“The uncorroborated
testimony of a victim, if believed by the trier of fact, is sufficient to convict a
defendant[.]”). Finally, McCrea’s argument regarding the credibility of Mr.
Grier’s statement to the police is addressed to the weight of the evidence,
Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008), and so
they are misplaced in his argument challenging the sufficiency of the
evidence.
Although there is no merit to the claims raised by McCrea on appeal,
our review of the record reveals that his sentence is illegal.5 McCrea was
convicted of first-degree murder and sentenced on November 16, 2102. The
trial court sentenced McCrea, who was seventeen years old at the time he
committed the murder at issue, to life without parole. See N.T., 11/16/12,
at 183. Prior to October 25, 2012, juveniles convicted of first-degree
murder were subject to mandatory sentences of life without parole.
18 Pa.C.S.A. § 1102(a)(1) (superseded by 18 Pa.C.S.A. § 1102.1). Such
mandatory sentences for juveniles were declared unconstitutional by the
United States Supreme Court in Miller v. Alabama, __ U.S. __, 132 S. Ct.
5
This Court may raise issues concerning the legality of a sentence sua
sponte. Commonwealth v. Stetler, 95 A.3d 864, 888 n.6 (Pa. Super.
2014).
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2455, 2469 (2012). Post Miller, a trial court may impose a sentence of life
without parole on a juvenile, but only upon consideration of certain age
related factors. Miller, 132 S.Ct. at 2475; see also Commonwealth v.
Batts, 66 A.3d 286, 291 (Pa. 2013). In response to Miller, our Legislature
promulgated 18 Pa.C.S.A. § 1102.1, which provides, in relevant part, as
follows:
(a) First degree murder.--A person who has been
convicted after June 24, 2012, of a murder of the
first degree, first degree murder of an unborn child
or murder of a law enforcement officer of the first
degree and who was under the age of 18 at the time
of the commission of the offense shall be sentenced
as follows:
(1) A person who at the time of the
commission of the offense was 15 years of age or
older shall be sentenced to a term of life
imprisonment without parole, or a term of
imprisonment, the minimum of which shall be at
least 35 years to life.
18 Pa.C.S.A. § 1102.1(a)(1). In recognition of Miller’s holding that a life
sentence may not be imposed without consideration of certain age related
factors, subsection (d) of this statute includes a list of factors that a trial
court must consider before imposing a sentence of life without parole on a
juvenile. See 18 Pa.C.S.A. § 1102.1(d) (“In determining whether to impose
a sentence of life without parole under subsection (a), the court shall
consider and make findings on the record regarding the following … .”)
(emphasis added).
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Section 1102.1 became effective on October 25, 2012, and therefore
was in effect at the time the McCrea was convicted and sentenced.
Nonetheless, the trial court imposed McCrea’s life sentence without
consideration of the factors contained in Section 1102.1(d). The imposition
of a sentence of life without parole on a juvenile without consideration of
age-related factors is unconstitutional and therefore illegal. Miller, 132
S.Ct. at 2469; Batts, 66 A.3d at 291. Accordingly, we vacate McCrea’s
judgment of sentence and remand for resentencing pursuant to Section
1102.1.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2015
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