Com. v. Harding, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JASON HARDING :
:
Appellant : No. 883 EDA 2022
Appeal from the Judgment of Sentence Entered November 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001709-2020
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 6, 2023
Jason Harding appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after being convicted by a jury
of third-degree murder,1 carrying a firearm without a license,2 and carrying a
firearm in a public place in Philadelphia.3 After review, we affirm.
On December 21, 2018, Harding and four other individuals4 were filming
a “rap video” near 2100 Middleton Street in Philadelphia County. N.T. Jury
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1 18 Pa.C.S.A. § 2502(c).
2 Id. at § 6106(a)(1).
3 Id. at § 6108.
4 Harding was accompanied by his younger brother and three friends.
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Trial, 9/1/21, at 70.5 At approximately 10:00 PM, the victim, Bernell Gibson,
inquired as to what the group was doing on the street and requested that they
leave. Id. When Harding first saw the victim approach the group, Harding
saw a light and thought the victim was holding a firearm. In response, Harding
removed his firearm from his pocket. Upon realizing the light Harding saw
was the victim’s phone, Harding placed his firearm under his shirt. Id. at 76-
77; see Exhibit D-1.
Harding testified that the victim’s tone was “aggressive,” id. at 70, and
that the victim was “calling for somebody.” Id. at 71. Harding “[saw the
victim’s] right hand [go] down[] his body [and go] sideways [] and it looked
like he went to reach for something, that’s when I started shooting.” Id. at
71. Harding testified, “When I shot [the victim], I thought that he was going
to try to reach for a gun and start shooting at me. . . . The first couple of shots
[were] warning shots. And then the second time I started shooting, it was []
out of fear.” Id. at 72. Harding was “probably seven feet” away from the
victim during the incident, id. at 75, and fired a semi-automatic firearm nine
times.6 Detective Thorston Lucke testified that surveillance video shows “[the
victim] turn and kind of run away as he’s being shot.” Id., 8/31/21, at 42.
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5 The entire incident was captured on surveillance video and shown to the
jury. See Exhibit D-1.
6 Detective James Poulos testified that nine .40 caliber shell casings were
found at the scene and the casings were consistent with the firing of a semi-
automatic weapon. N.T. Jury Trial, 8/31/21, at 92, 110.
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The parties stipulated that the victim died due to a gunshot wound to his torso.
Id. at 117-18.
On September 7, 2019,7 Harding was arrested and charged with murder,
a violation of the Uniform Firearms Act, and possessing an instrument of a
crime. A preliminary hearing was held on February 30, 2021, during which
Harding pled not guilty to all charges. Harding proceeded to a jury trial on
August 30, 2021, after which he was found guilty of third-degree murder,
carrying a firearm without a license, and carrying a firearm in a public place
in Philadelphia. Sentencing was deferred pending a pre-sentencing
investigation (PSI) report and a mental health evaluation.
On November 19, 2021, the court sentenced Harding to an aggregate
term of 22½ to 45 years’ incarceration followed by 5 years of probation.
Harding filed a timely post-sentence motion, which was denied. This timely
appeal followed. Both Harding and the trial court complied with Pa.R.A.P.
1925. Harding raises the following claims for our review:
1. Whether the adjudication of guilt for [third-degree murder] is
based upon insufficient evidence because the Commonwealth
did not establish beyond a reasonable doubt that [Harding]
possessed the mens rea necessary for [third-degree murder]?
2. Whether the adjudication of guilt for [t]hird[-d]egree [m]urder
is against the weight of the evidence where the evidence
adduced at trial established that the victim approached
[Harding] with hostility[,] demanding that [Harding] and his
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7 Harding was identified and arrested by Philadelphia police when they were
called to the scene of a robbery on September 8, 2019. N.T. Jury Trial,
8/31/21, at 11-12, 15.
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friends[,] who were innocently shooting a rap video[,] leave
the victim’s neighborhood, where the victim reached for what
[Harding] believed to be a weapon[,] and where [Harding]
unreasonably believed that[,] under the circumstances[,] he
was justified in using lethal force to protect himself or his
friends
3. Whether the [sentencing c]ourt abused its discretion at
sentencing
a. when it sentenced [Harding] to an aggregate sentence of
22½ [to] 45 years[’ incarceration] plus 5 years [of]
probation where the aforesaid sentence is excessive and
contrary to the norms underlying the Sentencing Code
and therefore constitutes a substantial question that the
sentence is inappropriate?
b. where [it] failed to give proper weight to the mitigating
factors set forth in the [PSI], the [m]ental [h]ealth
[e]valuation[,] and by witnesses who testified at the
[s]entencing [h]earing[,] and where this constitutes a
substantial question that the sentence is inappropriate
because it is contrary to the norms underlying the
Sentencing Code?
Appellant’s Brief, at 6-7 (reordered for ease of disposition).
Harding first claims that the evidence is insufficient to establish beyond
a reasonable doubt that he acted with malice, the mens rea necessary for
third-degree murder. Appellant’s Brief, at 20-22. Specifically, he contests
the inferences drawn by the jury that he exhibited malice based on the number
of shots he fired at the victim and their direction of travel, and that the victim
was either retreating or had ceased to be hostile. Id. at 20. Harding is
entitled to no relief.
This Court’s review of sufficiency claims is well-settled:
When reviewing challenges to the sufficiency of the evidence, [this
Court] evaluates the record in the light more favorable to the
Commonwealth as verdict winner, giving the prosecution the
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benefit of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element beyond a reasonable doubt.
However, the Commonwealth need not establish guilt to a
mathematical certainty, and it may sustain its burden by means
of wholly circumstantial evidence. In addition, the court may not
substitute its judgment for that of the fact finder, and where the
record contains support for the convictions, they may not be
disturbed. Lastly, the finder of fact is free to believe some, all, or
none of the evidence presented.
Commonwealth v. Smith, 146 A.3d 257, 261-62 (Pa. Super. 2016)
(quotations and citations omitted).
Third-degree murder is defined as murder that is not first-degree
murder (intentional killing) or second-degree murder (killing where defendant
was a principal or accomplice in the perpetration of a felony). See 18
Pa.C.S.A. 2502(a)-(c). “To establish [third-degree murder], the
Commonwealth need only prove beyond a reasonable doubt that the
defendant killed an individual, with legal malice, i.e., [] wickedness of
disposition, hardness of heart, wantonness, cruelty, recklessness of
consequences, or a mind lacking regard for social duty.” Commonwealth v.
Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011) (internal quotations and
citations omitted). The jury need not inquire as to whether the defendant had
a specific intent to kill. Commonwealth v. Meadows, 787 A.2d 312, 317
(Pa. 2001).
Evidence is sufficient to establish malice where a defendant shoots the
victim in a vital part of his body. In Commonwealth v. Crosley, 180 A.3d
761, (Pa. Super. 2018), this Court found malice where the defendant fired his
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weapon into the victim’s torso, a vital part of the body, three times from about
an inch away. Id. at 764, 767-78; cf. Commonwealth v. Sepulveda, 855
A.2d 783, 789 (Pa. 2004) (defendant was shot in the abdomen, a vital part of
his body); Commonwealth v. Drumheller, 808 A.2d 893, 908 (Pa. 2002)
(torso may be considered a vital part of the body).
In Commonwealth v. Jones, 271 A.3d 452 (Pa. Super. 2021), this
Court found sufficient evidence of malice where the defendant intentionally
fired a gun, in rapid fire succession, directly at the victim and did not stop
shooting as the victim fell to the floor. Id. at 460. The Jones Court reasoned
that the evidence was clearly sufficient to show malice where the defendant
“intentionally fired a gun directly at [the victim].” Id.; see Commonwealth
v. Young, 431 A.2d 230, 232 (malice established where defendant
“intentionally pointed a loaded gun at the victim and shot him in the chest”);
Commonwealth v. Patterson, 180 A.3d 1217, 1223 (Pa. Super. 2018)
(malice established where defendant intentionally pointed a revolver at victim
and fired, striking victim in the head).
Here, Harding intentionally fired a semiautomatic weapon nine times in
the direction of the victim, striking the victim in his torso, a vital part of the
body. N.T. Jury Trial, 8/31/21, at 92, 110, 117-18; Patterson, supra;
Jones, supra; Pappert, supra. Moreover, evidence supports the
determination that the victim had either ceased to be hostile or was retreating.
In particular, Detective Lucke testified that the victim was holding a cell
phone, not a weapon, and was backing away from Harding and his friends as
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Harding continued shooting. Id. at 42, 44 (Detective Lucke testifying “[Y]ou
see the cell phone flickering in [the victim’s] hand there. Shooting happens.”).
In light of the foregoing, and giving the Commonwealth the benefit of
all reasonable inferences, the evidence is sufficient to establish, beyond a
reasonable doubt, that Harding acted with malice. Smith, supra.Harding next claims that his adjudication is against the weight of the
evidence where he was justified in using lethal force on the victim, who was
aggressive and hostile to Harding and his friends. This Court reviews weight
of the evidence claims for an abuse of discretion:
The weight of the evidence is exclusively for the finder of fact[,]
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. [This Court] cannot
substitute its judgment for that of the finder of fact. Thus, we
may only reverse the lower court’s verdict if it is so contrary to
the evidence as to shock one’s sense of justice. Moreover, where
the trial court has ruled on the weight claim below, [this Court’s]
role is not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather, appellate
review is limited to whether the trial court palpably abused its
discretion in ruling on the weight claim.
Commonwealth v. Hunzer, 868 A.2d 498, 506-07 (Pa. Super. 2005).
Additionally, “[a] motion for a new trial on the grounds that the verdict is
contrary to the weight of the evidence concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no obligation to
review the evidence in the light most favorable to the verdict winner.”
Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005) (citations
omitted).
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“A successful claim of self-defense negates the malice element of third-
degree murder.” Commonwealth v. Marks, 704 A.29 1095, 1099 (Pa.
Super. 1997) (citation omitted). There must, however, be some evidence to
justify a finding of self-defense. Commonwealth v. Torres, 766 A.2d 342,
345 (Pa. 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. 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.
Id. at 345 (citations omitted).
[I]t must be shown that [(1)] the actor was free from fault in
provoking or continuing the difficulty which resulted in the use of
deadly force; [(2)] 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 [(3)] the actor did not violate
any duty to retreat or to avoid the danger.
Commonwealth v. Harris, 665 A.2d 1172, 1174 (Pa. 1995) (citations
omitted).
A corollary to the defense of justification or self-defense is []
imperfect self-defense. As our Supreme Court has characterized
this defense:
A self-defense claim under this theory is imperfect in only
one respect–an unreasonable rather than a reasonable
belief that deadly force was required to save the actor’s life.
All other principles of justification under 18 Pa.C.S. § 505
must [still be met in order to establish] unreasonable belief
voluntary manslaughter. [(Commonwealth v. Serge, 837
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A.2d 1255, 1265-66 (Pa. Super. 2003) (citing]
Commonwealth v. Tilley, [] 595 A.2d 575, 582 (Pa.
1991)).
Commonwealth v. Austin, 906 A.2d 1213, 1222 (Pa. Super. 2006) (internal
quotations omitted).
Instantly, Harding argues he was acting in self-defense or in defense of
another when he fired shots at the victim. Harding supports his defense with
the following facts: He did not initiate the violence; he, his brother and his
friends were innocently and lawfully filming a rap video; the victim was
aggressive and hostile when he approached the group; the victim began
calling down the block for assistance; and Harding observed the victim
reaching for something, which Harding believed to be a gun. Appellant’s Brief,
at 18-19. Harding’s weight of the evidence claim is without merit.
Although Harding testified that the victim’s tone was “aggressive,” id.
at 70, and that the victim was “calling for somebody,” id. at 71, Harding’s
testimony is devoid of any claim that the victim threatened the group with a
deadly weapon. Additionally, Harding conceded that he did not see the victim
holding a weapon. Id. at 77; see Jones, 271 A.3d at 461 (no self-defense
where no weapon of any kind was found on victim and threats from victim did
not involve use of firearm or another weapon).
Moreover, the jury is free to make credibility determinations and adopt
Detective Lucke’s testimony as opposed to Harding’s testimony. See Hunzer,
supra. While Harding testified it looked like the victim was reaching for a gun
and this prompted Harding to fire his weapon, see N.T. Jury Trial, 9/1/21, at
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72, Detective Lucke testified, “[Y]ou see the cell phone flickering in [the
victim’s hand there. Shooting happens.” Id. at 44. Detective’s Lucke’s
testimony supports the determination that Harding and the group were not in
imminent danger because the victim was holding his phone, not a firearm.
Moreover, the evidence shows that the victim was turning away from,
and moving in the opposite direction of, Harding as Harding shot at the victim.
N.T. Jury Trial, 8/31/21, at 42. This testimony is supported by the surveillance
video showing the victim backing up and turning away as Harding continued
shooting. See Exhibit D-1. This evidence, showing that the victim attempted
to flee, supports the determination that Harding and the group were not in
imminent danger.
Additionally, the evidence shows Harding was able to retreat to his car
in complete safety. In Commonwealth v. Yanoff, 690 A.2d 260 (Pa. Super.
1997), this Court found a violation of the duty to retreat where “at all times
[during the incident], [defendant] was near his car.” Id. at 264. Here,
Harding was near his car at all times, including when the victim first
approached the group and when the victim began calling for somebody.
Instead of driving away, Harding intentionally positioned himself behind the
car, see N.T. Jury Trial, 9/1/21, at 73, and moved the firearm from his pocket
to under his shirt. Id. at 76-77; see Exhibit D-1. Harding violated his duty
to retreat.
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The trial court did not palpably abuse its discretion in finding that
Harding was not acting self-defense or defense of another. Hunzer, supra.Accordingly, his weight of the evidence claim must fail.8
Harding’s third claim challenges the discretionary aspects of his
sentence, from which there is no automatic right to appeal. See
Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa. Super. 2013). Rather,
when an appellant challenges the discretionary aspects of his sentence, we
must consider his brief on this issue as a petition for permission to appeal.
Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997). Prior to
reaching the merits of a discretionary aspects of sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether the appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
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8 Harding’s claim that the “first couple of shots [were] warning shots,” N.T.
Jury Trial, 9/1/21, at 72, is belied by the record. The surveillance video shows
Harding pointing his weapon in the direction of the victim. Exhibit D-1; see
Commonwealth v. Kresege, 240 A.3d 905, *11 (Pa. Super. 2020)
(unpublished memorandum decision) (where testimony indicated defendant
pointed the gun upward, Court characterized as “warning shot”). Even if
Harding could justify the warning shots, he continued to fire his weapon
another seven times, see N.T. Jury Trial, 9/1/21, at 76, while the victim was
“turn[ing] and kind of runn[ing] away, id., 8/31/21, at 42, and, thus, used
excessive force. See Commonwealth v. Truong, 36 A.3d 592, 599 (Pa.
Super. 2012) (no self-defense where defendant uses “more force than
reasonably necessary to protect against death or serious bodily injury”).
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Presently, Harding filed a timely notice of appeal and preserved his
issues in a post-sentence motion for reconsideration. Further, Harding’s brief
includes a concise statement of reasons relied upon for allowance of appeal
with respect to the discretionary aspects of his sentence pursuant to Rule
2119(f). Thus, we must determine if Harding raises a substantial question.
A substantial question exists when “the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Commonwealth
v. Austin, 66 A.3d 789, 808 (Pa. Super. 2013). Additionally, “we cannot look
beyond the statement of questions presented and the prefatory Rule 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018).
Harding’s Rule 2119(f) statement and questions presented on appeal
allege that the sentencing court abused its discretion in sentencing because it
failed to “give due consideration [his] mitigating circumstances,” including the
PSI report, mental health evaluation and witness testimony at the sentencing
hearing. Appellant’s Brief, at 7, 14. Harding also claims his sentence is
excessive and contrary to the norms underlying the Sentencing Code.
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Appellant’s Brief, at 7. When considered together, these claims pose a
substantial question.9
A defendant poses a substantial question where he makes an
excessiveness claim in conjunction with an assertion that the [sentencing]
court failed to consider mitigating factors. Mouzon, 812 A.2d 617, 627 (Pa.
2002) (substantial question raised where defendant sufficiently articulates
that a sentence violates a particular fundamental norm underlying the
sentencing process); Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014) (excessiveness claim asserting trial court failed to consider
mitigating factors raises a substantial question); see Commonwealth v.
Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (same). As such, we may review
Harding’s claim on the merits to determine if he is entitled to relief.
In its Rule 1925(a) opinion, the trial court explained it considered the
following when sentencing Harding:
A [PSI] as well as a mental health evaluation had been prepared
and examined in this case[. In addition, a] sentencing memoranda
[was] prepared by the parties as well as letters on behalf of the
defendant and [a statement regarding] the impact upon the
victim’s family. The sentencing guidelines direct an offense
gravity score of [14]. Harding’s prior record score was [1]. The
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9We note that Harding’s abuse of discretion claims individually do not raise a
substantial question. In Commonwealth v. Downing, 990 A.2d 788 (Pa.
Super. 2010), this Court determined that, “inadequate consideration of
mitigating factors does not raise a substantial question for our review.” Id.
at 794. Additionally, in Commonwealth v. Mouzon, 812 A.2d 617 (Pa.
2022), our Supreme Court stated that “[t]he obligation lies with the
challenging party to say why that sentence is manifestly excessive – failure to
do so is failure to raise a substantial question.” Id. at 628.
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deadly weapon matrix recommends a guidelines minimum range
of one hundred and two months to the statutory limit of two
hundred and forty months. [The sentencing court considered] the
nature of the crime, the defendant’s background, the likelihood of
rehabilitation and the need for the public to be protected from his
behavior by [Harding] again. [Harding was sentenced] within the
guidelines.
Trial Court Opinion, 5/2/22, at 9-10. Therefore, Harding’s claim that the trial
court failed to consider Harding’s “great deal of family support” as described
in the mental health evaluation, see Appellant’s Brief, at 23, and the PSI’s
determination that Harding suffered no physical abuse or neglect growing up,
the presence of which would indicate risk to the community and danger of
reoffending, id., is meritless. The trial court considered these circumstances
in fashioning Harding’s sentence.
Additionally, Harding’s claim that his sentence is excessive because the
trial court failed to consider provocation by the victim and that Harding
believed he was saving the lives of the people he was with, Appellant’s Brief,
at 23, affords him no relief. Because Harding was not acting in self-defense
or in defense of others, the trial court did not abuse its discretion by not
considering self-defense as a mitigating factor. See N.T. Sentencing,
11/19/21, at 40; see also Commonwealth v. Reynolds, 835 A.2d 720, 735
(Pa. Super. 2003) (jury did not accept defendant’s justification defense and,
“accordingly, self-defense could not have reasonably been considered as a
mitigating factor at sentencing”).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2023
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