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Commonwealth v. Fortson

Superior Court of Pennsylvania

May 26, 2017


         Appeal from the Judgment of Sentence January 28, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016615-2014

          BEFORE: MOULTON, J., RANSOM, J., and PLATT, J. [*]


          RANSOM, J.

         Appellant, Daikweon Fortson, appeals from the judgment of sentence of thirteen to twenty-six years of incarceration imposed January 28, 2016, following a bench trial resulting in his conviction for attempted homicide, robbery, aggravated assault, possession of a firearm by a minor, and possession of a weapon.[1] We affirm.

         The relevant facts and procedural history are as follows. Appellant and Karron Tucker showed up at C.J. Clawson's house to buy marijuana from him. See Notes of Testimony (N.T.), 11/2/2015, at 32. C.J. was hanging out with Tyler Grant at the time. See id. C.J. did not have enough marijuana to sell them. Id. at 25, 33. C.J. contacted Gino Roland, Jr.[2] via twitter to inquire about purchasing additional marijuana. Id. at 26, 33. Gino agreed to sell C.J. one half ounce of marijuana. Id. at 116, 126. C.J. agreed to meet Gino at Carl Schmidt's house. See id.

         C.J. brought Appellant, Karron, and Tyler when he went to meet Gino at Carl's house. Id. at 26. When the four of them arrived, C.J. remained on the porch while Gino and Carl walked into the alleyway on the side of the house with Appellant, Karron, and Tyler. Id. at 27, 57. Either Appellant or Karron took the marijuana without paying Gino. Id. at 29, 58, 134. Appellant and Karron tried to run away, but Gino and Carl chased them and caught up. Id. at 29-30. A fight ensued. Id. at 30. Gino began wrestling with Karron. Id. at 46, 59-60, 132. Gino knocked Karron down onto the ground and was standing over top of him. Id. at 132. Appellant pulled a gun on Gino. Id. at 30-31, 59, 131-32. At the time of the incident, however, Appellant was ineligible to carry a concealed firearm because of his age. Id. at 111.

         Appellant aimed the gun at Gino's face, and Gino heard a click, but it did not fire. Id. at 31, 136-138. Gino tried to wrestle Appellant for the gun. Id. at 60. Appellant got free, pulled the trigger, and shot Gino in the back from five feet away. Id. at 31, 60-61. Carl remained to help Gino as the others fled. Id. at 53. Officer Jones found Gino lying on the sidewalk bleeding profusely. Id. at 11-12, 11-15. Gino suffered two fractured ribs, two fractured vertebrae, and two collapsed lungs. Id. at 121-123.

         Following a non-jury trial, Appellant was found guilty and sentenced as described above.[3] Appellant filed a post-sentence motion, which the court denied on May 31, 2016. Appellant timely filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement. The court filed a responsive opinion.

         On appeal, Appellant raises the following issues:

I. Whether the Commonwealth produced sufficient evidence to sustain a guilty verdict for criminal attempt - criminal homicide?
II. Whether the verdict is against the weight of the evidence presented?
III. Whether Pennsylvania's sentencing guidelines as applied to a juvenile defendant violated the proportionality requirement of the Eighth Amendment?

Appellant's Br. at 3.

         First, Appellant challenges the sufficiency of the evidence offered to prove criminal attempt to commit murder. In reviewing the sufficiency of the evidence, our standard of review is as follows:

[W]hether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant'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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

         "A person commits an attempt when, with the intent to commit a specific crime, he does any act which constitutes a substantial step towards the commission of ...

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