Com. v. Johnson, W.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WILBERT JOHNSON, : No. 1642 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, August 25, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0015449-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2015
Wilbert Johnson appeals from the judgment of sentence of August 25,
2014, following his conviction of first-degree murder.1 We affirm.
The trial court provided the following facts of this case:
The evidence presented at trial established
that in the late evening hours of September 21,
2013, [appellant] was at the Ragtime Bar in
Homestead, where he was waiting to meet the
mother of his child, Jalynn Ferrell, to discuss a
possible reconciliation in their relationship.
[Appellant] knew that Ferrell was seeing someone
else, but told her, earlier that day, that if he could
not have her, no one would. Also at the Ragtime Bar
that evening were Ferrell’s new boyfriend,
Edward Joseph and his three (3) friends,
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2502(a).
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Blaine Smoot, “Sheen”[2] and Qaeed Braxton.
[Appellant] became aware that Joseph was Ferrell’s
new boyfriend, and at one point during the evening,
had Joseph call Ferrell and put him on the phone,
since Ferrell was not answering [appellant’s] calls.
At some point thereafter, [appellant] and Braxton
had a verbal altercation. Though the altercation did
not involve shouting or fighting, the bar’s owner
nevertheless broke up the discussion between the
two men. Braxton and his friends then left the bar,
on their way to Ferrell’s house to watch a boxing
match on television. Surveillance video from the bar
shows [appellant] following them at a fast pace. By
the time Braxton and his friends reached the end of
the block, [appellant] had caught up to them and
retrieved a gun from the car he was driving. The
car, a grey Volkswagen, belonged to [appellant’s]
current girlfriend, Karen Clark. Joseph saw
[appellant] retrieve the gun and began to run. He
heard Braxton say “Aw, come on man” and then a
shot was fired. By the time Joseph returned to the
scene, [appellant] was gone and Braxton
[(hereinafter “victim”)] was laying (sic) face-down
on the sidewalk. He was transported by paramedics
but was later pronounced dead. The cause of death
was a single gunshot wound to the back, which
perforated his lung.
Trial court opinion, 1/13/15 at 2-3. The Commonwealth charged appellant
with criminal homicide, terroristic threats, and a violation of the Uniform
Firearms Act.3 The Commonwealth withdrew the Uniform Firearms Act
charge, and the trial court granted appellant’s motion for judgment of
acquittal on one of the terroristic threats charges. (Notes of testimony,
8/19/14 at 248.) At the conclusion of a jury trial, the jury found appellant
2
After a review of the record, “Sheen’s” identity is unclear.
3
18 Pa.C.S.A. §§ 2501, 2706(a)(1), and 6105(a)(1), respectively.
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guilty of first-degree murder and acquitted him of the other terroristic
threats charge. On August 25, 2014, appellant was sentenced to life
imprisonment without the possibility of parole. (Notes of testimony,
sentencing hearing, 8/25/14 at 14.) The trial court denied appellant’s post-
sentence motions on September 9, 2014. Appellant then filed a notice of
appeal and the trial court filed an opinion on January 13, 2015.
Appellant raises the following issues for our review:
1. Did the trial court err in denying [appellant’s]
request to admit certain evidence at trial,
specifically, the prior criminal convictions of
the [decedent] for the purpose of showing the
decedent’s propensity for violence and acting
as the aggressor?
2. Was the evidence sufficient to demonstrate
that [appellant] was acting in self-defense?
3. Was the verdict against the weight of the
evidence?
Appellant’s brief at 3.
The first issue appellant raises for our review is whether the trial court
erred in refusing to admit certain evidence regarding the victim’s criminal
history as part of appellant’s self-defense claim. When claiming self-
defense, a defendant is permitted to introduce evidence of the victim’s
criminal history to either prove that the defendant was in reasonable fear of
the victim because the defendant had knowledge of the victim’s violent
tendencies, or to prove that the victim was acting in conformance with those
violent tendencies and was the aggressor in the altercation in question.
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Commonwealth v. Beck, 402 A.2d 1371, 1373 (Pa. 1979), quoting
Commonwealth v. Amos, 284 A.2d 748, 750 (Pa. 1971). The Beck court
also stated that a defendant was not required to have prior knowledge of
the victim’s criminal conviction in order to introduce the conviction into
evidence. Beck, 402 A.2d at 1373.
This court further clarified our supreme court’s holdings in Beck and
Amos by stating that,
[P]rior convictions involving aggression by a victim
of a homicide may be introduced into evidence by an
accused where self-defense is asserted to . . . prove
the allegedly violent propensities of the victim to
show that the victim was in fact the aggressor. . . .
[T]he defendant need not have knowledge of a
victim’s criminal conviction in order to introduce the
prior conviction to show the aggressive propensities
of the victim.
Commonwealth v. McClain, 587 A.2d 798, 802 (Pa.Super. 1991)
(emphasis in the original) (citations omitted).
In the instant case, appellant claims that the trial court erred when it
did not admit evidence of the victim’s prior convictions into evidence on the
grounds that appellant had no prior knowledge of the victim’s criminal record
or previous convictions. Appellant is correct in that the trial court erred
when it denied his motion to introduce evidence of the victim’s prior
convictions. However, at no point throughout the record or in his brief does
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appellant disclose the crime of which the victim was allegedly convicted.4
The only reference in the record to the victim’s criminal history came in the
form of an oral motion at the close of the Commonwealth’s case-in-chief:
[Defense counsel]: Just to put on the record one
last thing.
The Court: Sure.
[Defense counsel]: The request to admit certain
prior convictions of the victim, Mr. Braxton, in this
case, as the aggressor in this matter. It’s my
understanding that the Court is going to make a
ruling as to that.
The Court: Yes, I will. Since the Defendant so far as
I know did not know of any prior record, I will not
allow that to be admitted.
Notes of testimony, 8/19/14 at 252.
This discussion is the extent of any record of prior conviction evidence
and is insufficient for our review. As a result of appellant’s failure to disclose
the nature of the victim’s conviction, appellant has failed to show that he
was prejudiced by the trial court’s error. Therefore, we find that the trial
court’s denial of evidence of the victim’s prior convictions amounted to
harmless error. The harmless error standard is as follows:
[The Pennsylvania Supreme Court] has stated
that an error may be harmless where the properly
admitted evidence of guilt is so overwhelming and
4
We do note that in its opinion, the trial court refers to the victim’s prior
convictions for simple assault and terroristic threats; however, the trial court
also notes, as we do here, that appellant failed to articulate these
convictions at any point throughout the trial transcript or his concise
statement of errors. (Trial court opinion, 1/13/15 at 8.)
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the prejudicial effect of the error is so insignificant by
comparison that it is clear beyond a reasonable
doubt that the error could not have contributed to
the verdict. Under this approach, a reviewing court
first determines whether the untainted evidence,
considered independently of the tainted evidence,
overwhelmingly establishes the defendant’s guilt. If
“honest, fair minded jurors might very well have
brought in not-guilty verdicts,” an error cannot be
harmless on the basis of overwhelming evidence.
Once the court determines that the evidence of guilt
is overwhelming, it then decides if the error was so
insignificant by comparison that it could not have
contributed to the verdict. We have cautioned that:
A conclusion that the properly
admitted evidence is ‘so overwhelming’
and the prejudicial effect of the . . . error
is ‘so insignificant’ by comparison, that it
is clear beyond a reasonable doubt that
the error is harmless, is not to be arrived
at lightly.
Accordingly, we have been reluctant to find an
error harmless on the basis of overwhelming
evidence.
In applying the harmless error analysis in a
particular case, it is imperative that the burden of
establishing that the error is harmless beyond a
reasonable doubt rests with the Commonwealth.
Commonwealth v. Drummond, 775 A.2d 849, 853 (Pa.Super. 2001),
quoting Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994).
As this court articulated in Drummond, we do not undertake the
finding of harmless error lightly; however, the evidence that appellant acted
as the aggressor in this case is overwhelming. After the victim and his
friends left the Ragtime Bar, appellant ran after them, went to his car, took
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out a gun, and fatally shot the victim in the back as he was running away.5
Considering these facts cast in a light favorable to the Commonwealth, the
victim did not act as the aggressor, and the failure of the trial court to admit
any of the victim’s previous convictions was so insignificant that it did not
cause appellant any prejudice.
Therefore, we find that the trial court committed harmless error when
it denied defense counsel’s motion to admit evidence of the victim’s prior
convictions and did not err when it denied appellant a new trial.
We now address appellant’s sufficiency of the evidence claim.
In reviewing the sufficiency of the evidence,
we view all evidence admitted at trial in the light
most favorable to the Commonwealth, as verdict
winner, to see whether there is sufficient evidence to
enable [the fact finder] to find every element of the
crime beyond a reasonable doubt. This standard is
equally applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of
the evidence, this Court may not substitute its
judgment for that of the fact finder; if the record
contains support for the convictions, they may not
be disturbed.
5
Smoot testified that upon realization that appellant had a gun, all four
members of their group started running away; this testimony was
corroborated by forensic evidence which indicated that the victim was shot in
the back. (Notes of testimony, 8/18/14 at 45, 112.)
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Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted).
Moreover, in applying the above test, the
entire record must be evaluated and all evidence
actually received must be considered. Finally, the
finder 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. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted).
The credibility and weight of the evidence are both matters that are in
the sole purview of the jury. Specifically, when considering whether or not
the evidence was sufficient to prove each element of each charge beyond a
reasonable doubt, we cannot assume the task of weighing evidence and
making independent conclusions of fact. Commonwealth v. Lewis, 911
A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding
[an appellant’s] guilt may be resolved by the fact-finder unless the evidence
is so weak and inconclusive that as a matter of law no probability of fact
may be drawn from the combined circumstances.” Id.When a defendant claims self-defense, the burden is on the
Commonwealth to disprove the defendant’s claim beyond a reasonable
doubt. Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012)
(citations omitted). For this reason, we shall review the sufficiency of the
evidence not only for the first-degree murder conviction, but also to
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determine whether the Commonwealth met its burden in disproving
appellant’s self-defense claim.
We shall first review the first-degree murder conviction. After
reviewing the evidence presented cast in the light most favorable to the
Commonwealth, as verdict winner, we find that the evidence is sufficient to
warrant the jury’s conviction for first-degree murder. First-degree murder is
defined as a criminal homicide that is “committed by an intentional killing.”
18 Pa.C.S.A. § 2502(a). The statute defines “intentional killing” as “killing
by means of poison, or by lying in wait, or by any other kind of willful,
deliberate and premeditated killing.” 18 Pa.C.S.A. § 2502(d).
In order for an individual to be convicted of first-degree murder, the
Commonwealth must prove the following beyond a reasonable doubt:
(1) that a human being was unlawfully killed; (2) that the defendant
perpetrated the killing; and (3) that the defendant did so with “malice and a
specific intent to kill.” Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa.
2014).
In the instant case, the Commonwealth has met its burden of proving
all three elements of first-degree murder beyond a reasonable doubt. First,
the Commonwealth proved that the victim was killed unlawfully through the
testimony of Kenneth Clark, a forensic pathologist in Allegheny County.
Dr. Clark conducted an autopsy on the victim, and determined his death to
be caused by a homicide. (Notes of testimony, 8/18/14 at 108, 113.)
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Second, for the reasons discussed supra, the Commonwealth proved
beyond a reasonable doubt that appellant perpetrated the killing. Finally,
the Commonwealth also proved beyond a reasonable doubt that appellant
not only perpetrated the killing, but did so with the specific intent to kill.
Despite the fact that appellant claims self-defense, the forensic evidence
indicates that he shot the victim in the back. (Id. at 112.) Eyewitness
testimony also indicated that when Smoot noticed that appellant was getting
a gun out of his car, Smoot, Joseph, “Sheen,” and the victim all attempted
to run away. (Id. at 45.) While not necessary to obtain a first-degree
murder conviction,6 the Commonwealth also established motive with
testimony of the argument in the bar between appellant and the victim and
the fact that Joseph was dating appellant’s ex-girlfriend.
Taking this evidence in the light most favorable to the Commonwealth,
as verdict-winner, we find that the Commonwealth has satisfied its burden of
proving first-degree murder beyond a reasonable doubt, and that the jury’s
guilty verdict is fully supported by the evidence, and accordingly cannot be
disturbed.
We now turn to appellant’s self-defense claim. In order for a
defendant to successfully claim self-defense, he or she must meet the
following three elements: (1) the defendant reasonably believed that he
6
See Commonwealth v. Zimmerman, 504 A.2d 1329, 1335 n. 4
(Pa.Super. 1986) (stating that the Commonwealth need not prove motive in
order to obtain a conviction for first-degree murder).
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was in imminent danger of death or serious bodily injury and that the use of
deadly force was necessary to prevent such harm; (2) the defendant did not
provoke the incident which resulted in the victim’s death; and (3) the
defendant did not violate any duty to retreat. Commonwealth v. Mouzon,
53 A.3d 738, 740 (Pa. 2012) (citations omitted). As previously noted, the
Commonwealth has the burden of disproving self-defense beyond a
reasonable doubt, and may do so by disproving any one of the three
self-defense elements the defendant must meet. Id. at 740-741.
Here, we only need to address the second factor as discussed in
Mouzon: whether appellant was at fault in provoking the incident that
resulted in the victim’s death. We find that the Commonwealth has proven
beyond a reasonable doubt that appellant was the aggressor in this case,
and therefore his self-defense claim must fail. Appellant claimed that the
victim was the initial aggressor after appellant left the Ragtime Bar. (Notes
of testimony, 8/19/14 at 229.) The Commonwealth, however, was able to
disprove this beyond a reasonable doubt. In addition to Smoot’s testimony
that appellant chased the victim and his friends down the street from the
bar, appellant admitted to the police that he did not see anyone (the victim,
Joseph, Smoot, or “Sheen”) have any firearms or other types of weapons in
their possession. (Id.)
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For these reasons, we find that the Commonwealth has met its burden
of disproving appellant’s self-defense claim beyond a reasonable doubt, and
that the evidence fully supports the jury’s guilty verdict.
Finally, appellant asks us to consider whether the weight of the
evidence supports his conviction for first-degree murder. Our standard of
review for considering the weight of the evidence is as follows:
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:
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. 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 the trial
court’s determination that the verdict is
against the weight of the evidence. One
of the least assailable reasons for
granting or denying a new trial is the
lower court’s conviction that the verdict
was or was not against the weight of the
evidence and that a new trial should be
granted in the interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or denying a
motion for a new trial based on a challenge to the
weight of the evidence is unfettered. In describing
the limits of a trial court’s discretion, we have
explained:
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The term “discretion” imports the
exercise of judgment, wisdom and skill
so as to reach a dispassionate conclusion
within the framework of the law, and is
not exercised for the purpose of giving
effect to the will of the judge. Discretion
must be exercised on the foundation of
reason, as opposed to prejudice,
personal motivations, caprice or arbitrary
actions. Discretion is abused where the
course pursued represents not merely an
error in judgment, but where the
judgment is manifestly unreasonable or
where the law is not applied or where the
record shows that the action is a result of
partiality, prejudice, bias, or ill will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations
omitted).
Appellant’s weight of the evidence argument is grounded in two
separate theories: that the jury gave too much weight to Smoot’s
eyewitness testimony of the encounter between appellant and the victim
outside the Ragtime Bar and that the jury did not give enough weight to
Dr. Clark’s testimony that the victim had ingested cocaine and alcohol near
the time of his encounter with appellant. (Appellant’s brief at 14.) In
declining to find that the conviction was against the weight of the evidence,
the trial court found the verdict reached was not so contrary to the evidence
as to shock one’s conscience or render the verdict inappropriate. (Trial court
opinion, 1/13/15 at 7.) We find no abuse of discretion in such a conclusion
and therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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