Com. v. Antwon, T.

J-S78020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL ANTWON :
:
Appellant : No. 3069 EDA 2017
Appeal from the Judgment of Sentence Entered May 19, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007696-2015
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 04, 2019
Terrell Antwon appeals the judgment of sentence entered on May 19,
2017, after the jury convicted him of third-degree murder; carrying a firearm
on a public street or public property in Philadelphia; and possessing an
instrument of crime.1 Antwon challenges the sufficiency and weight of the
evidence; maintains that the trial court erred in denying his motion to
suppress; and that the Commonwealth failed to disprove his claim of self-
defense and defense of others. We affirm.
The trial court aptly summarized the facts of this case as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia Police Officers Kenneth Downing, Brian Stark, Steven
Berardi, Kelly Walker, and Michael Levin, Philadelphia Police
Detectives John Keen and James Pitts, [and] Philadelphia Police
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(c), 6108, and 907, respectively.
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Sergeants William Robbins Harvey, Steven Guy, Lonay Newkirk,
and Debra Morgan. Co-defendant Wiggins presented the
testimony of Kimberlee Johnson, Dorin Harris, and Lorraine
Stewart. [Antwon] did not present any evidence. Viewed in the
light most favorable to the Commonwealth as the verdict winner,
the evidence established the following.
On November 23, 2012, at approximately 1:30 a.m.,
Rashon Wiggins was engaged in an argument with Anthony
Palmer outside of Buffy’s bar at the corner of Clarissa Street and
Dennie Street in Philadelphia. The victim, Johnika Tiggett, walked
up to Wiggins and Palmer and attempted to get them to stop
arguing. [Antwon] then came up and whispered something to
Wiggins, who then walked away. After Wiggins walked away,
[Antwon] and Palmer began arguing. Tiggett, again, attempted to
stop the argument, and then left, heading down Dennie Street
toward Wayne Avenue. Palmer and Wiggins, however, continued
arguing until Palmer started walking away to the other side of
Dennie Street, where Byron McDonald, Roland Thompson
(“Mustafa”), and Roland Thompson, Jr. (“Man-Man”) were
standing. [Antwon] then pulled out a semiautomatic handgun and
began shooting in Palmer’s direction. McDonald, Mustafa, Man-
Man, and Palmer then began shooting back at defendant. During
the shootout, during which around 40 shots were fired, Mustafa
fired a shot that struck Tiggett in the back of the neck while she
was running away down the street. Police took Tiggett to Temple
Hospital, where she died later than night. An autopsy later
revealed the cause of death was a gunshot wound to the neck.
Trial Court Pa.R.A.P. 1925(a) Opinion (“TCO”), filed November 22, 2017, at
2-3 (citations to notes of testimony omitted). Following trial, the trial court
sentenced him to life without parole for third-degree murder and no further
penalty for the remaining charges. Antwon filed a post-sentence motion, which
the trial court denied. This timely appeal followed.
Antwon raises the following issues on appeal:
1. Whether the out-of-court identification procedures violated
[Antwon’s] Due Process rights where an unduly suggestive
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single photograph was presented to two witnesses to identify
[Antwon] instead of a multiple photograph array?
2. Whether the evidence produced at trial was sufficient to sustain
the jury’s verdict that [Antwon] had the requisite malicious
intent necessary to convict him of Murder of the Third Degree?
3. Whether the jury’s verdict finding [Antwon] guilty of Murder of
the Third Degree was against the weight of the evidence?
4. Whether the Commonwealth failed to disprove self-defense and
defense of others beyond a reasonable doubt where [Antwon]
fired at four men who were firing at him and others?
Antwon’s Br. at 5-6.
DENIAL OF SUPPRESSION MOTION
Our review of the denial of a suppression motion is as follows:
[An appellate court’s] standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal conclusions are
erroneous. Where . . . the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to [] plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (brackets
in original) (quoting Commonwealth v. Jones, 121 A.3d 524, 526-27
(Pa.Super. 2015)). We are also limited to reviewing the evidence from
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suppression hearing. Id. Antwon argues that the trial court erred in denying
his motion to suppress out of court identifications from two witnesses, Steven
Guy and Lonay Newkirk.
“[W]here a defendant does not show improper police conduct resulted
in a suggestive identification, suppression is not warranted.” Commonwealth
v. Sanders, 42 A.3d 325, 330 (Pa.Super. 2012). The Commonwealth bears
the burden of establishing “that the totality of the circumstances affecting the
witness’ identification did not involve a substantial likelihood of
misidentification.” Commonwealth v. Jones, 426 A.2d 1167, 1170
(Pa.Super. 1981).
Here, Antwon maintains that because both witnesses were shown a
single photograph of him, he was “subjected to a tainted, unduly suggestive,
improper pretrial identification procedure.” Antwon’s Br. at 17. He cites no
legal authority that would support his argument. However, this Court in Jones
found suppression unwarranted in a nearly identical factual scenario. Jones
involved a gas station robbery. During the robbery, Jones threatened two of
the employees. One of those employees was shown a single photograph to
identify Jones as the assailant. On appeal, Jones argued that showing the
witness a single photograph to identify him as the suspect was improper and
therefore the identification should have been suppressed. We disagreed,
concluding that where the witness knew Jones prior to the crime; viewed Jones
at close range during the robbery; and identified him by name prior to being
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shown the photograph, showing a single photograph was not improper. Id. at
1170-71.
Similar to Jones, in the instant case both witnesses viewed Antwon
during the shooting and knew him prior to the shooting. Mr. Guy knew Antwon
for approximately two years prior to the shooting, and while he did not know
Antwon by name, he knew that he drove a white Buick LeSabre, had been in
and out of jail, and observed him shooting on the day of the incident. N.T.,
Suppression Hearing, October 14, 2016, at 24, 26. Ms. Newkirk knew Antwon
for five years, knew him by the name of “Rell,” and observed him shooting on
the day of the incident. Id. at 31-32. Showing these witnesses a single
photograph of Antwon was not unduly suggestive and “there was no basis in
law to suppress either the out-of-court or in-court identifications of [Antwon].”
TCO at 5. No relief is due. See Jones, 426 A.2d at 1171.
SUFFICIENCY AND WEIGHT OF THE EVIDENCE
Our standard of review for a claim challenging the sufficiency of the
evidence is de novo and our scope of review is plenary. See Commonwealth
v. Neysmith, 192 A.3d 184, 189 (Pa.Super. 2018). We view the facts in the
light most favorable to the verdict winner, “giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.” Id. (quoting
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).
Antwon maintains that the evidence was insufficient to establish malice
for third-degree murder. He argues that “the trial testimony clearly
demonstrated, [he] was the only person trying to stop the argument from
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escalating.” Antwon’s Br. at 21. Malice “comprehends not only a particular ill-
will, but every case where there is wickedness of disposition, hardness of
heart, cruelty, recklessness of consequences, and a mind regardless of social
duty, although a particular person may not be intended to be injured.”
Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (quoting
Commonwealth v. Drum, 58 Pa. 9, 15 (1868)).
It is uncontested that Antwon did not shoot the fatal shot that took the
victim’s life. However, viewing the facts in the light most favorable to the
Commonwealth, “[t]he evidence . . . established that [Antwon] voluntarily and
with malicious intent engaged in a shootout outside of Buffy’s and that, as a
result of that shootout, the victim was shot in the neck, which caused the
victim’s death.” TCO at 8. While Antwon argues that the evidence shows that
he was trying to deescalate the argument, the testimony was clear that he
was the first to pull “out a semiautomatic handgun and fire approximately 15
shots at Palmer” and in return Palmer and three of his friends fired in Antwon’s
direction which resulted in the victim being shot in the back. Id. at 7-8; see
also N.T., Trial, May 16, 2017, at 110-11; 117-19; 120-22. The evidence was
sufficient to prove that Antwon’s actions were malicious even though he may
not have intended harm towards the victim. See Packer, 168 A.3d at 168;
see also Commonwealth v. Gaynor, 648 A.2d 295, 299 (Pa. 1994)
(concluding death of victims could be attributed to defendant based on
transferred intent even though his bullets did not murder or wound the
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victims).2 Similarly, the above evidence rebuts Antwon’s argument that the
verdicts were against the weight of the evidence.
We review a weight claim for an abuse of discretion. Commonwealth
v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017). “[A] defendant must
prove the evidence is ‘so tenuous, vague and uncertain that the verdict shocks
the conscience of the court.’” Id. (quoting Commonwealth v. Mucci, 143
A.3d 399, 411 (Pa.Super. 2016)).
Here, the evidence was consistent that Antwon began the shootout and
that it resulted in the victim being shot in her back. We find no abuse of
discretion by the trial court in concluding that the evidence was not “so
tenuous, vague and uncertain” as to shock the conscience of the court.
Windslowe, 158 A.3d at 712.
SELF-DEFENSE/DEFENSE OF OTHERS
Last, Antwon maintains that “the Commonwealth failed to disprove that
[he] acted in self-defense or defense of others.” Antwon’s Br. at 20. A
defendant bears “no burden to prove self-defense.” Commonwealth v.
Mouzon, 53 A.3d 738, 740 (Pa. 2012). Rather, the Commonwealth bears the
burden to disprove the defendant’s claim of self-defense or defense of others
beyond a reasonable doubt. See Commonwealth v. Hornberger, 74 A.3d
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2 “The transferred intent theory provides that if the intent to commit a crime
exists, this intent can be transferred for the purpose of finding the intent
element of another crime.” Commonwealth v. Thompson, 739 A.2d 1023,
1029-30 (Pa. 1999) (quoting Commonwealth v. Gibbs, 626 A.2d 133, 138
(Pa. 1993)).
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279, 283 (Pa.Super. 2013). The Commonwealth sustains this burden by
proving one of the following: “1) the accused did not reasonably believe that
he was in danger of death or serious bodily injury; or 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.” Commonwealth v. Smith, 97
A.3d 782, 787 (Pa.Super. 2014) (quoting Commonwealth v. Hammond,
953 A.2d 544, 559 (Pa.Super. 2008)).
Antwon claims that “[t]he evidence demonstrated that [he] acted in self-
defense and defense of others,” because the evidence showed that “after [he]
defused the situation and Mr. Palmer began to walk away, Mr. Thompson
began to reach for his gun from his hip.” Antwon’s Br. at 20, 21. This is a
mischaracterization of the evidence presented at trial. This portion of
“evidence” that Antwon references comes from a Commonwealth witness,
Millicent Harvey. On cross examination she testified to the following:
Q [defense counsel]: Now, you also agree that when you were
watching my client speak to Mr. Thompson, Mr. Thompson kept
going to his hip; is that correct? Is that what you saw?
A: I don’t remember him going to his hip until the guy started
shooting.
***
Q [defense counsel]: . . . Being asked the question: Do you know
if anyone else was shooting besides the first guy that you saw
shooting?
A: Yes.
Q: Do you remember them asking you that?
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A: Yes.
Q: Okay. And do you recall giving the answer: I don’t know if the
bald guy was shooting, but he kept going to his hip when he was
talking to the first guy shooting. Do you recall telling the police
that?
A: Something similar. It wasn’t quite that. When he started
shooting at him he was going – he was going to his hip, I guess
to – I assume to get a gun to defend his self.
Q: But you do agree, though, in that statement what you told the
police and what you signed was; he kept going to his hip when he
was talking to the first guy shooting?
A: No, he wasn’t. I believe he probably was counting money when
he was talking to the guy, and the guy walked over to him.
Q: So the second person, the second photograph that we looked
at, Mr. Thompson, you said he was counting money in his hand;
is that correct?
A: I believe he was counting money.
Q: Okay. Then at some point it appeared that he was going to his
hip, is that correct?
A: That’s after the guy started shooting at him. That’s when all
three of them seem like they were – two of the three started
shooting right back at him. The bald headed one went to this hip.
By that time I had dropped down to the floor. So I never actually
seen him pull out a gun, but I assume that’s what he was going
for.
N.T., Trial, May 16, 2017, at 282, 283-84.
Harvey remained immovable in her testimony that Antwon began
shooting first, prior to Thompson moving his hand toward hip area. In
addition, the Commonwealth presented testimony of another participant in
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the shootout, Byron McDonald, that Antwon shot in the direction of Palmer
before McDonald and his two other companions returned fire. Id. at 117-19,
120-22. Therefore, we agree with the trial court that the Commonwealth
refuted Antwon’s self-defense claim because it presented evidence that “the
shootout was started by [Antwon,] who pulled his weapon and began firing,
without provocation, before anyone else produced a weapon.” TCO at 9. Thus,
the above testimony established that Antwon provoked the use of force,
thereby disproving his self-defense claim. See Smith, 97 A.3d at 787. The
same evidence refutes Antwon’s defense of others claim as well. The
Commonwealth’s evidence rebuts all of Antwon’s arguments that he was
trying to deescalate the argument. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/19
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