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[U] Commonwealth of Pennsylvania v. Harris

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TYRIRK HARRIS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of April 26, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004135-2012

BEFORE: GANTMAN, P.J., OLSON AND PLATT, [*] JJ.

MEMORANDUM

OLSON, J

Appellant, Tyrirk Harris, appeals from the judgment of sentence entered on April 26, 2013, following his jury trial convictions for third-degree murder and possession of an instrument of crime (PIC).[1] We affirm.

The facts of this case, as aptly summarized by the trial court, are as follows:

On February 14, 2012, at approximately 4:08 p.m., Frank Santana, the decedent, approached [Appellant's] home on the 6500 block of Torresdale Avenue in Northeast Philadelphia. Francis Fogarty, a neighbor who had lived on the block for several years, saw the conversation that ensued. She heard the decedent ask [Appellant] to deal with the mess made by his dog on the decedent's lawn, and also say "if I have to come back, there's going to be a problem." [Appellant] responded by asking the decedent if that was a threat, and then by drawing a gun and shooting the decedent in the face. The decedent fell over a railing between [Appellant's] porch and the porch next door. [Appellant] proceeded to shoot the now-prone decedent several more times.
Fogarty's boyfriend, Damon Smith, testified similarly, saying that he was walking down Torresdale Avenue with Fogarty when he saw the decedent and [Appellant] "having words" and then saw [Appellant] shoot the decedent in the face. Smith then dove to the ground, and heard a succession of gunshots.
According to [] Dr. Marlon Osbourne, an Assistant Medical Examiner in Philadelphia, the decedent had suffered seven gunshot wounds, including a penetrating gunshot wound to the lower face with stipple, indicating that the gun was within two and one-half feet at the time the shot was fired. The shot to the face also severed the spinal cord in [Appellant's] neck and would have had the immediate and inevitable effect of paralyzing him, causing him to fall and to lose most bodily functionality, including breathing.
The decedent also suffered a perforating shot to the neck that severed his carotid artery, another perforating neck wound, a perforating wound to the back of his right shoulder, a penetrating wound to the left shoulder, a penetrating wound to his left flank that damaged the spleen, the pancreas and the liver, and a graze wound to his chest. Only the shot to the decedent's face had any stippling, and the testimony of the eyewitnesses establish it as the first gunshot.
[Appellant] called the police to the scene, and then told police when they arrived that he had shot the decedent. Officer Steven Hancock took [Appellant's] handgun from him at that time. That Smith and Wesson nine-millimeter handgun matched all of the fired cartridge casings recovered in this matter. The Commonwealth submitted a certificate of nonlicensure, establishing that [Appellant] was not licensed to carry the handgun.
In his statement to homicide detectives, [Appellant] claimed that the decedent had grabbed [Appellant's] gun halfway from the holster and that [Appellant] then shot him, believing his life to be in danger. He repeated this story at trial.
[Appellant's] cousin, Clifton Williams, also testified that the decedent had grabbed at [Appellant's] waist in an attempt to seize his gun before the shooting. However, in his statement to police after the shooting, Williams did not mention that the decedent tried to seize the gun. At that time, he simply said that he heard them argue about the dog having befouled the decedent's lawn, and then he saw the decedent gesture with his hands as he spoke, and then [Appellant] shot him. He also said in his statement that he asked [Appellant] why he shot the decedent, and [Appellant] said that the decedent was going to beat him up. Williams said he did not hear the decedent say that he was going to beat [Appellant] up.
After the defense presented character testimony from several witnesses, the Commonwealth submitted rebuttal testimony from Officer Brian Gordon. Upon being asked whether [Appellant's] reputation for being peaceful and law-abiding is good, bad, or beyond his knowledge, the officer began by saying "I locked [Appellant] up for …". The [trial court] immediately halted the improper testimony, and gave a curative instruction. The [trial court] instructed the jury not to consider the stricken testimony, and further ...

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