Com. v. Lucas, K.

J-S38036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEYON EDWARD LUCAS :
:
Appellant : No. 70 WDA 2021
Appeal from the Judgment of Sentence Entered August 28, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001573-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: APRIL 11, 2022
Appellant, Keyon Edward Lucas, appeals from the judgment of sentence
imposed following his conviction of third-degree murder and related charges.
We affirm.
On January 23, 2017, Lavell Beason and four other individuals traveled
in a minivan to East 22nd Street between Ash and Wallace Streets in the City
of Erie. Once they arrived at their destination, Beason’s mother went inside
a building to look at an apartment. While the minivan was parked on the
street, Beason exited and greeted several individuals congregating on a porch
of a nearby home. Appellant was one of the individuals on the porch;
however, Beason did not shake hands or speak with him. Beason then
returned to the vehicle and sat in the front passenger seat. A few moments
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* Retired Senior Judge assigned to the Superior Court.
J-S38036-21
later, Appellant approached the van, pulled out a handgun, and fired four
times into the van, striking Beason once in the neck and once in the chest.
Beason was taken to the hospital, where he was pronounced dead.
Although he was a juvenile at the time of shooting, Appellant was
charged as an adult with general criminal homicide1 and related charges. A
jury trial commenced in February 2020, at which the trial court instructed the
jury as to first- and third-degree murder. The Commonwealth presented the
testimony of William Wall, who was on the porch with Appellant prior to the
shooting, as well as two of the individuals who were in the van with Beason.
Furthermore, and as relevant here, the Commonwealth’s evidence at trial
included a black hooded sweatshirt found in Appellant’s last known residence
that showed evidence of gunshot residue on the right sleeve, surveillance
video and video stills showing Wall’s movements after the shooting, and a
Facebook photograph of Appellant with a gun that was consistent with the
weapon used in the shooting.2
On February 26, 2020, the jury convicted Appellant of third-degree
murder, five counts of aggravated assault, four counts of recklessly
endangering another person, possession of a firearm without a license,
possession of a firearm by a minor, possession of an instrument of crime,
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1 18 Pa.C.S. § 2501(a).
2 The actual murder weapon was not recovered by police.
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discharge of a firearm into an occupied structure, and flight to avoid
apprehension.3 On August 28, 2020, the trial court imposed an aggregate
sentence of 20 to 49 years of incarceration followed by 4 years of probation.
Appellant filed a post-sentence motion, which the trial court denied. This
timely appeal followed.4
Appellant presents the following issues for our review:
1. Did the trial court err as a matter of law and abuse its discretion
when it found that the gunshot residue report was admissible?
2. Did the trial court err as a matter of law and abuse its discretion
when it found that the still photos from Serafin’s Market were
admissible?
3. Did the trial court err as a matter of law and abuse its discretion
by admit[ting] Facebook photos of the Appellant holding an
alleged firearm?
4. Was there insufficient evidence to uphold a conviction for third
degree murder?
Appellant’s Brief at unnumbered pages 16-17 (unnecessary capitalization and
suggested answers omitted).
We apply the following standard in reviewing Appellant’s first three
issues, which relate to the trial court’s evidentiary rulings:
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3 18 Pa.C.S. §§ 2502(c), 2702(a)(1), (4), 2705, 6106(a)(1), 6110.1(a),
907(a), 2707.1(a), and 5126(a), respectively.
4 Appellant filed his notice of appeal from the trial court’s order denying his
post-sentence motion. Appellant’s appeal, however, properly lies from the
judgment of sentence, which was made final by the denial of his post-sentence
motion. See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.
Super. 2001) (en banc). The caption has been corrected accordingly.
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The admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. Our standard of review of a
challenge to an evidentiary ruling is therefore limited. Abuse of
discretion is not merely an error of judgment, but rather 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. Williams, 241 A.3d 1094, 1101 (Pa. Super. 2020)
(citation omitted). “Evidence is admissible if it is relevant—that is, if it tends
to establish a material fact, makes a fact at issue more or less probable, or
supports a reasonable inference supporting a material fact—and its probative
value outweighs the likelihood of unfair prejudice.” Commonwealth v.
Clemons, 200 A.3d 441, 474 (Pa. 2019) (citation omitted). We further note
that decisions involving discovery in criminal cases lie within the discretion of
the trial court and the court’s ruling on discovery issues will not be reversed
absent an abuse of that discretion. Commonwealth v. Renninger, ___ A.3d
___, 2022 PA Super 2, at *10 (Pa. Super. 2022) (en banc).
Appellant first challenges the trial court’s admission of the gunshot
residue report showing the presence of residue on the sweatshirt believed to
have been worn by Appellant on the day of the shooting. The sweatshirt was
found by police in Appellant’s bedroom in his last-known residence, during a
search conducted six days after the shooting. N.T., 2/24/20, at 66-69. The
left and right sleeves of the sweatshirt were swabbed, and these two samples
were sent to a laboratory for gunshot residue testing. Id. at 73-75; N.T.,
2/25/20, at 12-15. An expert in gunshot residue analysis and interpretation
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testified that Appellant’s left sleeve sample showed no evidence of gunshot
residue, while his right sleeve tested positive for particles characteristic of
gunshot residue. N.T., 2/25/20, at 28-32.
Although the gunshot residue report had been prepared months in
advance of trial, the prosecution did not become aware of the report until they
met with detectives the day before trial was set to start, after a jury was
selected; at that point, the report was turned over to the defense. N.T.,
2/18/20, at 9-10. On the first day of trial, the trial court heard oral argument
on Appellant’s motion in limine to exclude the report and took the matter
under advisement but directed the Commonwealth not to refer to the gunshot
residue in its opening statement. Id. at 9-17, 25-26.
On the morning of the second day of trial, the trial court ruled that the
gunshot residue report could be admitted but indicated that it was inclined to
grant a continuance to allow the defense to investigate the report and
sweatshirt. N.T., 2/19/20, at 15, 26. At that time, the court authorized
Appellant to hire a private investigator to assist in the investigation. Id. at
22, 27, 211. Later during the second day of trial, the trial court concluded
that a two-day continuance was the appropriate remedy for the prosecution’s
violation of its discovery obligation; this would allow the defense two
weekdays plus the weekend to investigate. Id. at 102-03, 108-11.
When trial resumed after the continuance on Monday, February 24,
2020, Appellant renewed his motion to exclude the gunshot residue report on
the basis “that they really can’t tie” the sweatshirt to him as his family had
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been evicted from the residence approximately six weeks prior to the
shooting. N.T., 2/24/20, at 4-5. The Commonwealth represented that
testimony from the detective who executed the search warrant would show
that the home appeared to be lived in after the eviction. Id. at 5-7. The court
denied the motion to exclude and determined that the question of whether
Appellant was residing in the home at the time of the shooting and left the
sweatshirt there would be left to the jury. Id. at 8.
Appellant argues that the failure to produce the gunshot residue report
until the eve of trial violates Brady v. Maryland, 373 U.S. 83 (1963), as well
as the Commonwealth’s pre-trial discovery obligations under Rule of Criminal
Procedure 573. Appellant argues that the two-day continuance ordered by
the trial court did not permit sufficient time to hire an expert to review the
gunshot residue report or to investigate whether the sweatshirt was used as
evidence in a trial in which Appellant’s brother was charged in a shooting.
Appellant also argues that under Brady, the proper remedy was the exclusion
of the report as well as any expert testimony derived therefrom.
Preliminarily, we observe that the Commonwealth’s failure to produce
the gunshot residue report in advance of trial did not violate Brady as the
report was inculpatory and not favorable to Appellant’s defense. See
Commonwealth v. Bagnall, 235 A.3d 1075, 1086 (Pa. 2020) (Brady is
implicated only where evidence at issue is favorable to accused, either
because it is exculpatory, or it impeaches). Rule 573 provides, in relevant
part:
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(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant's attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.
* * *
(e) any results or reports of scientific tests, expert opinions,
and written or recorded reports of polygraph examinations
or other physical or mental examinations of the defendant
that are within the possession or control of the attorney for
the Commonwealth;
* * *
(D) Continuing Duty to Disclose. If, prior to or during trial,
either party discovers additional evidence or material previously
requested or ordered to be disclosed by it, which is subject to
discovery or inspection under this rule, or the identity of an
additional witness or witnesses, such party shall promptly notify
the opposing party or the court of the additional evidence,
material, or witness.
(E) Remedy. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to
comply with this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may prohibit
such party from introducing evidence not disclosed, other than
testimony of the defendant, or it may enter such other order as it
deems just under the circumstances.
Pa.R.Crim.P. 573(B)(1)(e), (D), (E).
The purpose of Rule 573 is to prevent trial by ambush.
Commonwealth v. Lynch, 242 A.3d 339, 350 (Pa. Super. 2020). Where a
discovery violation occurs, the trial court has broad discretion in choosing the
appropriate remedy from those outlined in Rule 573(E). Commonwealth v.
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Brown, 200 A.3d 986, 993 (Pa. Super. 2018). While the trial court’s
discretion in this regard is not unfettered, “[i]n most cases, ordering a
continuance will be an adequate remedy.” Commonwealth v. W. Smith,
955 A.2d 391, 395 (Pa. Super. 2008) (en banc). “A continuance is appropriate
where the undisclosed statement or other evidence is admissible and the
defendant’s only prejudice is surprise.” Id. We further note that:
A defendant seeking relief from a discovery violation must
demonstrate prejudice. A violation of discovery does not
automatically entitle appellant to a new trial. Rather, an appellant
must demonstrate how a more timely disclosure would have
affected his trial strategy or how he was otherwise prejudiced by
the alleged late disclosure.
Brown, 200 A.3d at 993 (citations and quotation marks omitted).
Upon review, we do not discern an abuse of discretion in the trial court’s
grant of a continuance of two weekdays, as well as the weekend, to respond
to the gunshot residue report. First, we note that while the trial court
concluded that the Commonwealth did not willfully withhold the gunshot
residue report, it did find that a violation of Rule 573 occurred and granted
the remedy of a continuance, which is expressly authorized under part (E) of
the rule. While defense counsel at one point requested a two-week
continuance if the report were admitted, she also indicated that she “would
probably need a few days” to investigate and at the time of the court’s ruling
stated that a continuance of two days would be sufficient. N.T., 2/18/20, at
100; N.T., 2/19/20, at 16, 103-04. Furthermore, the trial court authorized
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Appellant to enlist a private investigator to assist in preparing to address the
admittance of the gunshot residue report. N.T., 2/19/20, at 22, 27, 211.
Moreover, while Appellant now argues that the trial court did not permit
enough time to hire an expert to review the Commonwealth’s expert’s report,
Appellant did not seek time or funds to hire his own expert when this matter
was discussed at trial. Instead, Appellant’s concern initially focused on
whether the sweatshirt related to his brother’s trial, which appeared to be
resolved when the Commonwealth represented that a video that captured the
shooting his brother was involved in showed him wearing a long-sleeve shirt,
not a sweatshirt. N.T., 2/19/20, at 17-20. Following the continuance,
Appellant objected to the admission of the gunshot residue report on the
grounds that the sweatshirt could not be connected to him based upon the
earlier order of eviction from the premises, an issue that the trial court
concluded should be left for the consideration of the jury. N.T., 2/24/20, at
4-8. Ultimately, Appellant has not demonstrated how the earlier receipt of
the gunshot residue report would have affected his trial court strategy or how
he was prejudiced by the fact that the court did not grant a longer
continuance. Brown, 200 A.3d at 993. Therefore, we find no cause to disturb
the court’s determination with respect to this issue.
Appellant next argues that still images captured from a surveillance
video at Serafin’s Market, which showed William Wall standing outside of a
store a few blooks from the site of the shooting, should not have been
admitted as the original video had been lost at the time of trial. Appellant
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contends that the timestamps on the still images were unreliable as they could
not be verified as accurate in the absence of the video itself. Appellant further
argues that the stills were not admissible pursuant to the best-evidence rule
as the original video should have been produced to prove its contents.
The still images from the Serafin’s Market camera were admitted at trial
along with video recordings from several other cameras along Ash Street that
showed the path that Wall traveled in the aftermath of the shooting as well as
to capture the minivan driving towards the hospital. N.T., 2/24/20, at 37-43,
98-110; Commonwealth Exhibits N-1 to N-6. Upon the admission of the still
images from Serafin’s Market, Detective Christopher Janus of the Erie Police
Department testified that this video appeared to have been inadvertently
deleted in the three years between the shooting and trial, although officers
had taken screenshots of the video when they originally reviewed it, which
were the images shown at trial. N.T., 2/24/20, at 108-09. The videos and
still images were utilized in part to corroborate Wall’s testimony that he walked
away from the scene just before the shooting occurred, as well as to
undermine the defense theory that Wall was the actual shooter based upon
initial statements to police by members of Beason’s family blaming Wall for
Beason’s death.
Prior to trial, the trial court heard oral argument on Appellant’s motion
in limine to the admission of the Serafin’s Market still images. N.T., 2/18/20,
at 3-8. Appellant’s counsel explained her objection to the images as follows:
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[A]ll [the Commonwealth has] are the stills, which I received late
last week. The video itself no longer exists. I haven't seen it.
Apparently [the Erie Police Department] lost it. I think under the
Best Evidence Rule[,] under the Doctrine of spoilage, the
timestamps from that should be excluded, because we have no
way of knowing if they’re accurate. We can’t compare it against
any other video. [] I’m not able to see the entire video, and so I
think that while they could get the photograph in, it would
have to be without the timestamp.
Id. at 3-4 (emphasis added). The Commonwealth agreed that there was no
way to corroborate the timestamps, and the trial court granted Appellant’s
motion, ruling that the images could only be admitted with the timestamps
removed. Id. at 5-8. Appellant did not object at the time when the still
images—without the timestamps—were admitted and published to the jury
without the timestamps. N.T., 2/24/20, at 107; Commonwealth Exhibits N-1
to N-6.
As Appellant objected only to the timestamps on the still images taken
from Serafin’s Market surveillance video, we find no abuse of discretion in the
trial court’s admission of the images without the timestamps.5 While Appellant
now argues that the images themselves were improperly admitted, that issue
was not preserved below and cannot be raised on appeal. See Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
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5Appellant objected at trial to police testimony relating to the timestamps that
appeared on video captured by surveillance cameras outside two other
establishments along Ash Street, which the trial court overruled as efforts
were taken to verify the accuracy of the timestamps. N.T., 2/24/20, at 40-
41, 177. The admission of testimony related to the timestamps from these
other videos has not been raised on appeal.
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for the first time on appeal.”). Therefore, we find no merit to Appellant’s
second appellate issue.
Appellant next argues that the trial court abused its discretion by
permitting the Commonwealth to introduce a photo posted to Facebook in
March 2016, which showed Appellant holding what appeared to be a firearm.
Appellant asserts that, because he was in juvenile placement at the time of
the Facebook post, the photograph likely was taken at least two years prior to
the shooting. In light of the “extreme time difference” and the lack of
conclusive proof that Appellant was holding an actual firearm rather than a
replica, Appellant argues that the prejudice of the photograph outweighed its
probative value. Appellant’s Brief at unnumbered page 29. Appellant further
contends that the photograph was “an attempt to sneak in evidence of [his]
propensity for violence” without providing proper notice under Pennsylvania
Rule of Evidence 404(b). Id. at 31.
Prior to trial, the trial court entered an order permitting Appellant to
introduce the March 2016 Facebook photograph of Appellant holding a firearm.
Order, 2/18/20. Appellant moved for reconsideration, and the trial court
granted the motion and excluded the March 2016 photograph based upon the
remoteness in time from the incident. N.T., 2/18/20, at 22-24. The court,
however, indicated that it would permit the Commonwealth to introduce a
Facebook photograph from December 15, 2016 showing Appellant holding a
firearm, but the court required that the photo come in with testimony from
the Commonwealth’s firearms expert that the gun in the photo was consistent
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with the murder weapon and further required the Commonwealth to edit out
a shotgun that was also visible in the image. Id. at 97-99; N.T., 2/19/20, at
5-6, 10, 14-15, 197. The trial court found that the probative value of the
December 2016 photograph outweighed its prejudicial value and that any
doubts as to whether it was the actual murder weapon or whether it was even
an operational firearm would go to the weight of the evidence and be fodder
for cross-examination. N.T., 2/19/20, at 5-6, 10, 197.
The December 2016 photograph was admitted during the testimony of
the Commonwealth’s firearms expert, Corporal Dale Wimer of the
Pennsylvania State Police, who testified that the bullets used in the shooting
were .40 caliber and narrowed the potential weapons down to two models of
Charter Arms revolvers or four models of Smith and Wesson semi-automatic
pistols. Id. at 176, 182, 185. Corporal Wimer reviewed the Facebook
photograph and determined that it appeared to be a semi-automatic pistol of
either .40 or .45 caliber and that it was consistent with a Smith and Wesson
model that could have produced the bullets and bullet casings recovered by
police in this case. Id. at 198-99; Commonwealth Exhibit A-H. On cross-
examination, Corporal Wimer conceded that he could not definitively rule out
that the gun visible in the photograph was in fact a toy or replica. N.T.,
2/19/20, at 203-04.
As Appellant’s appellate argument focuses on the March 2016
photograph rather than the December 2016 photograph, and the trial court
agreed with his objection that the photo was too remote from the shooting
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and ruled it inadmissible, Appellant is not entitled to relief on his third issue.
Furthermore, to the extent we address the question of whether the trial court
abused its discretion in allowing the December 2016 Facebook photograph to
be admitted, we would not overturn the trial court’s ruling.6 As the trial court
explained, the December 2016 photograph had clear probative value as the
Commonwealth’s firearms expert was prepared to testify that it was consistent
with the limited number of firearm models that could have been the murder
weapon, the photo was from less than six weeks prior to the shooting, and
there was no dispute that Appellant was the individual depicted in the
photograph holding the purported firearm. N.T., 2/19/20, at 6.
While the photograph was certainly harmful to Appellant’s case, it was
not so unfairly prejudicial that exclusion was required as the trial court
required that the shotgun, which was extraneous to trial, be cropped out and
the photo was admitted solely to show Appellant’s access to a firearm
consistent with the murder weapon at the time of the shooting. See
Commonwealth v. Gad, 190 A.3d 600, 605 (Pa. Super. 2018) (“Evidence
will not be prohibited merely because it is harmful to the defendant.
[E]xclusion is limited to evidence so prejudicial that it would inflame the jury
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6 While Appellant argues on appeal that the March 2016 photograph was not
admitted in accordance with Rule of Evidence 404(b), we note that the
December 2016 photograph was not admitted pursuant to Rule 404(b), and
he did not object to its admission based on Rule 404(b). Therefore, we confine
our discussion to the issue addressed at trial of whether the probative value
of the December 2016 photograph was outweighed by the potential for unfair
prejudice. See Pa.R.E. 403.
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to make a decision based on something other than the legal propositions
relevant to the case.”) (citation omitted). Furthermore, to the extent that
Corporal Wimer did not conclusively opine as to the weapon’s exact model or
caliber or that it was in fact a functional firearm, this was fully explored in his
testimony and put to the jury for their resolution. Therefore, we would find
no abuse of discretion in the admission of the December 2016 photograph.
In his last issue, Appellant argues that there was insufficient evidence
to support his third-degree murder conviction. Appellant argues that the
evidence does not show that Appellant committed the offense as some
eyewitnesses to the crime initially told police that William Wall was the shooter
and only later identified Appellant. In addition, Appellant argues that the
Commonwealth’s “entire presentation of evidence was based on [] the theory
that the killing was premeditated and that Appellant had the specific intent to
kill” Beason—in other words, the required showing for a first-degree murder
conviction—and that the evidence did not satisfy the lesser standard for a
third-degree murder conviction. Appellant’s Brief at unnumbered pages 32-
33.
A challenge to the sufficiency of the evidence presents a question of law
and is subject to plenary review under a de novo standard. Commonwealth
v. B. Smith, 234 A.3d 576, 581 (Pa. 2020). When reviewing the sufficiency
of the evidence, we must determine whether the evidence admitted at trial
and all reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth, were sufficient to prove every element of the
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offense beyond a reasonable doubt. Id. “[T]he facts and circumstances
established by the Commonwealth need not preclude every possibility of
innocence.” Commonwealth v. Bowens, 265 A.3d 730, 740 (Pa. Super.
2021) (en banc) (citation omitted). “The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence.” Id. (citation omitted). Finally, we
note that the trier of fact has the authority to determine the weight of the
evidence and credibility of the witnesses and is free to believe all, part, or
none of the evidence. Id. at 741.
To sustain a conviction of third-degree murder, the Commonwealth
must prove that the defendant killed another with malice. Commonwealth
v. Knox, 219 A.3d 186, 195 (Pa. Super. 2019); Commonwealth v.
Patterson, 180 A.3d 1217, 1230 (Pa. Super. 2018).
Malice consists of a wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of
social duty. Malice exists where the principal acts in gross
deviation from the standard of reasonable care, failing to perceive
that such actions might create a substantial and unjustifiable risk
of death or serious bodily injury.
Patterson, 180 A.3d at 1230 (citation omitted). The factfinder may infer
malice where the defendant uses a deadly weapon upon a vital part of the
victim’s body. Knox, 219 A.3d at 195-96 (shooting victim in chest established
malice); see also Patterson, 180 A.3d at 1230 (firing revolver at victim’s
head showed defendant acted with malice); Commonwealth v. Devine, 26
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A.3d 1139, 1150 (Pa. Super. 2011) (willful discharge of a firearm in direction
of a group of people showed that defendant acted with malice).
Viewing the evidence in the light most favorable to the Commonwealth,
we conclude that the evidence was sufficient to support Appellant’s third-
degree murder conviction. First, we note that the testimony of the forensic
pathologist established that Beason died as a result of the gunshot wound to
his chest. N.T., 2/19/20, at 51, 55-56. Furthermore, in addition to the
gunshot residue report and the video and photographic evidence described
above, eyewitness evidence established that Appellant was the individual who
shot Beason. Wall testified that he was on the porch with various individuals,
including Appellant, when Beason approached. N.T., 2/18/20, at 127-32.
Beason greeted him and shook hands with various of the others present,
although not with Appellant. Id. at 139-41. As Beason walked back towards
the vehicle, Wall saw Appellant, who was wearing a black hooded sweatshirt,
fidgeting with a silver firearm with an extended magazine, pulling his hood
down over his head, and then disappearing briefly between two houses. Id.
at 132-33, 145-48, 150-53, 175. Sensing something was afoot, Wall and
others walked away from the porch, and Wall did not turn around when he
heard gunshots a few seconds later. Id. at 148-49, 154-55. Wall was
arrested on unrelated charges a few days later, and he identified Appellant as
being present at the scene, picked him out of a lineup, and described his
firearm to detectives. Id. at 173-78.
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Markeara Ott, Beason’s girlfriend who was in the van at the time of the
shooting, testified that she recognized three of the individuals on the porch,
including Appellant who was dressed in dark clothing on that day; although
Ott did not observe the shooting itself, she picked Appellant out of a
photographic lineup as being present at the scene. N.T., 2/18/20, at 54, 59-
60, 76, 81-83, 116; N.T., 2/24/20, at 84-87. Latasha Myers, Beason’s aunt
who was also present in the minivan, stated that as Beason was returning to
the vehicle, she saw various individuals disperse from the porch, including
Appellant who walked towards the minivan. N.T., 2/19/20, at 62-63, 82-84.
Myers testified that Appellant, who was wearing a dark hooded sweatshirt,
looked directly at her as he was approaching the minivan. Id. at 78, 84, 94.
Appellant, who was holding the firearm in his right hand, then fired
approximately five shots in the direction of the minivan. Id. at 86-89. Myers
later informed police that she had identified Appellant as the individual who
shot her nephew after looking through Facebook photos. Id. at 114-17; N.T.,
2/24/20, at 120-21.
Therefore, the evidence established that Appellant committed third-
degree murder by firing a handgun twice at Beason, striking him once in the
neck and once in the chest which caused Beason’s death. Knox, 219 A.3d at
195-96; Patterson, 180 A.3d at 1230. While Appellant claims that the
eyewitness testimony was undermined by the fact that some of Beason’s
family members initially identified Wall as the shooter, we cannot assume the
task of weighing the evidence and making independent conclusions of fact as
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part of our review of a sufficiency of the evidence claim. Bowens, 265 A.3d
at 741; Patterson, 180 A.3d at 1230.
Furthermore, we find no merit to Appellant’s argument that the evidence
submitted by the Commonwealth to show that Appellant had a specific intent
to kill Beason and therefore committed first-degree murder negated any
finding that he committed third-degree murder. Our Supreme Court has
previously explained that first-degree and third-degree murder are not
mutually exclusive offenses:
[T]hird degree murder is not a homicide that the Commonwealth
must prove was committed with malice and without a specific
intent to kill. Instead, it is a homicide that the Commonwealth
must prove was committed with malice, but one with respect to
which the Commonwealth need not prove, nor even address, the
presence or absence of a specific intent to kill. Indeed, to convict
a defendant for third degree murder, the jury need not consider
whether the defendant had a specific intent to kill, nor make any
finding with respect thereto.
. . . [T]he intent to kill is a defined element of first degree
murder—this does not mean an element of third degree murder is
the polar opposite of intent to kill, such that the Commonwealth
must prove a lack of intent to kill to convict of third degree
murder. The Commonwealth has no such obligation; evidence of
intent to kill is simply irrelevant to third degree murder.
Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (citation
omitted). Therefore, the Commonwealth was not required to prove that
Appellant lacked a specific into to kill in order to meet its third-degree murder
burden of showing that he acted with malice in causing the death of Beason.
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J-S38036-21
Accordingly, as we have determined that the evidence was sufficient to
show that he committed third-degree murder and we find that Appellant is not
entitled to relief on his evidentiary issues, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/11/2022
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