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Commonwealth v. Williams

Superior Court of Pennsylvania

December 8, 2017


         Appeal from the Judgment of Sentence May 5, 2016 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001412-2014



          SHOGAN, J.

         Appellant, Rashawn J. Williams, appeals from the judgment of sentence entered in the Court of Common Pleas of Lycoming County on May 5, 2016, following a six-day jury trial. We affirm.

         The trial court briefly summarized the facts of the crime and initial procedural history as follows:

On June 1, 2014, Appellant Rashawn Williams shot and killed Aaron Lowry [("the victim")] outside the Lamplight Hookah Lounge on West Fourth Street in Williamsport[, ] Pennsylvania[, ] and then fled to High Point North Carolina. On June 6, 2014, when law enforcement officers attempted to apprehend the Appellant in High Point, he fled from an apartment and was pursued into a wooded area by a law enforcement canine, which bit him and caused some injuries to his face and left ankle that were treated at a local hospital. Appellant was extradited back to Pennsylvania and charged with homicide, [two counts of] aggravated assault, possession of a firearm without a license, person not to possess a firearm, possession of an instrument of crime (firearm), simple assault, terroristic threats, and flight to avoid apprehension or prosecution.[1]

Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 1.

         On November 12, 2014, the Commonwealth sought, and was granted, access to the medical records from High Point Regional Hospital, where Appellant was treated following his capture on June 6, 2014. On November 25, 2014, Appellant filed a motion to quash the November 12 order, asserting that disclosure of the records violated the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936 (1996) ("HIPAA"). Appellant filed an omnibus pretrial motion on January 2, 2015, asserting, inter alia, that the medical records should be suppressed. On December 23, 2015, the trial court denied Appellant's motion to quash and suppression of the medical records.

         The Commonwealth filed multiple motions in limine on March 7, 2016, March 18, 2016, and March 22, 2016, seeking to preclude, inter alia, the testimony of Dr. Eric Vey, a defense expert. Also on March 22, 2016, and on March 30, 2016, pursuant to Pa.R.E. 404(b), the Commonwealth filed a notice of intent to introduce evidence including certified records of Appellant's prison telephone calls. Appellant also filed multiple motions in limine on April 4, 2016, and April 7, 2016, along with a motion to introduce certified police reports. On April 7 and 8, 2016, the trial court ruled on the various motions in limine and notices of intent. Order, 4/7/16; Order, 4/8/16.

         A jury trial ensued on April 12-18, 2016, following which the jury convicted Appellant of all charges. On April 21, 2016, Appellant filed a Post Verdict Motion for Extraordinary Relief pursuant to Pa.R.Crim.P. 704(B)(1), [2]which the trial court denied by opinion and order dated May 5, 2016, and filed on May 10, 2016. Also on May 5, 2016, the trial court sentenced Appellant to life imprisonment without the possibility of parole, and a concurrent aggregate sentence of twelve to twenty-four years of incarceration.[3] Appellant filed post-sentence motions on May 9, 2016, which the trial court denied on October 6, 2016. Appellant filed a timely notice of appeal; both Appellant and the trial court complied with Pa.R.A.P. 1925.

         Appellant raises the following eight issues on appeal, which we have reordered for purposes of clarity and ease of disposition:

I. Was the evidence presented at trial insufficient to prove that the Appellant had the specific intent to kill as required to support the guilty verdict for murder of the first degree?
II. Was the evidence presented at trial insufficient to prove malice as required to convict the Appellant of third degree murder and aggravated assault?
III. Did the Commonwealth fail to disprove the Appellant's self-defense claim where undisputed evidence established that the victim and at least one other individual jumped the Appellant?
IV. Was the first degree murder conviction so contrary to the weight of the evidence as to shock the conscience of the court and require that the Appellant be given a new opportunity to proceed to trial and prevail?
V. Did the trial court abuse its discretion by refusing to instruct the jury on heat of passion voluntary manslaughter?
VI. Did the trial court abuse its discretion by failing to suppress the Appellant's medical records from North Carolina because the Commonwealth unlawfully obtained them?
VII. Did the trial court abuse its discretion by excluding evidence offered by the defense, including: precluding Dr. Vey's testimony that the victim could have folded a knife and put it in his pocket; excluding evidence of the victim's prior conviction for aggravated assault with a deadly weapon; and excluding proffered testimony that it is not unusual for witnesses to be uncooperative?
VIII. Did the trial court err by admitting evidence offered by the Commonwealth, including: admitting the Appellant's intercepted telephone calls; admitting testimony that the Appellant's girlfriend phoned a friend to ask to borrow money; and admitting, in rebuttal, hearsay testimony that a witness had informed the Appellant's baby's mother when the victim died?

Appellant's Brief at 4.

         We first address Appellant's arguments relating to the sufficiency of the evidence supporting the convictions for first-degree murder and aggravated assault, along with his claim of unrebutted self-defense.[4] Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). In 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 as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017). "[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence." Commonwealth v. Colon-Plaza, 136 A.3d 521, 525-526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792-793 (Pa. Super. 2015). The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016). Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

         Appellant first asserts that the Commonwealth failed to present sufficient evidence that he possessed the specific intent to kill the victim. In support, Appellant presents a summary of the evidence in a light most favorable to him, rather than the Commonwealth, the verdict winner, as required by our case law. Von Evans, 163 A.3d at 983. Appellant's Brief at 9-13. Appellant argues that because the victim, Aaron Lowry, approached Appellant from behind while Appellant was engaged in a verbal confrontation with Shariah[5] Worthy, the mother of Appellant's daughter, the victim clearly was the aggressor. Appellant asserts that he merely reacted and therefore, did not have the specific intent to kill the victim. Id. at 11-12. Appellant further argues that there can be no inference of specific intent in this case based upon Appellant's use of a deadly weapon on a vital part of the victim's body due to "numerous factors [that] negate any permissible inference." Id. at 12.

         We note initially that Appellant has failed to comply with our rules of appellate procedure. In three pages of asserted factual underpinnings to this argument, Appellant fails to make one reference to where in the record these facts are located. Appellant's Brief at 9-11. It is not this Court's responsibility to comb through the record seeking the factual underpinnings of Appellant's claim. Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (citing Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super. 1997)). See Pa.R.A.P. 2119(c) ("If reference is made to . . . any . . . matter appearing in the record, the argument must set forth . . . a reference to the place in the record where the matter referred to appears."). See also Commonwealth v. Harris, 979 A.2d 387, 393 (Pa. Super. 2009) ("When an allegation is unsupported by any citation to the record, such that this Court is prevented from assessing this issue and determining whether error exists, the allegation is waived for purposes of appeal. Pa.R.A.P. 2119(c)"); Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super.2006) ("An appellate brief must provide citations to the record"). Nevertheless, we endeavor to locate support for Appellant's claims.

         An individual commits first-degree murder when he intentionally kills another human being; an intentional killing is defined as a "willful, deliberate and premeditated killing." 18 Pa.C.S. §§ 2501, 2502(a), (d). To sustain a conviction for first-degree murder, the Commonwealth must prove that: (1) a human being was unlawfully killed; (2) the accused was responsible for the killing; and (3) the accused acted with malice and a specific intent to kill. Commonwealth v. Ballard, 80 A.3d 380, 390 (Pa. 2013). A jury may infer the intent to kill "based on the accused's use of a deadly weapon on a vital part of the victim's body." Sanchez, 36 A.3d at 37.

         In addressing the sufficiency of the evidence supporting the first-degree murder verdict, the trial court stated as follows:

The evidence presented clearly established that Appellant possessed a firearm, which he was not licensed to carry concealed on his person. In fact, Appellant was prohibited from possessing a firearm due to a prior conviction for robbery. Appellant, according to his own testimony, took the firearm out of his pocket, pointed it at the victim and fired it. N.T., April 15, 2016, at 59-60.
The victim suffered a gunshot wound to the chest. N.T., April 12, 2016, at 86. The bullet was fired from at least 18 inches away. Id. at 96. The bullet injured the victim's upper and lower lobes of the left lung, which is a vital organ, as well as the victim's sternum, ribs, and the pericardium or sack surrounding the victim's heart. Id. at 89, 91. Those injuries led to bleeding which eventually led to a lack of oxygen to the brain and the heart. Id. at 91-92. Since the evidence clearly established that Appellant used a firearm on a vital organ of the victim's body, the evidence was sufficient to establish specific intent to kill necessary for first degree murder. Furthermore, Appellant's possession and use of a firearm for which he had no license to carry is additional evidence of his intention to commit the crime. 18 Pa.C.S. § 6104.

Pa.R.A.P. 1925(a) Opinion, 2/6/17, at 22.

         The testimony at trial established that Archie Bell and the victim exited Lamplight Hookah Lounge and observed Appellant engaged in an altercation with Shariah Worthy, a woman Mr. Bell had danced with earlier that evening and who was the mother of Appellant's child. N.T., 4/12/16, at 29-47. Mr. Bell described Ms. Worthy as having a "terrified" look on her face as she backed away from Appellant. Id. at 29. Mr. Bell and the victim ran in the direction of Appellant; Mr. Bell was behind the victim and was close enough that he "could have rested [his] hand on" the victim's shoulder. Id. at 33. When they were within an "arm's length" of Appellant, Appellant shot the victim. Id. at 32. Mr. Bell testified that Appellant "put the gun in my face, told me to back up or he would give me one, too." Id. At that point, Appellant fled in a car that was parked around the corner, and the victim, bleeding from his nose and mouth, collapsed on the pavement as he tried to escape. Id. at 34-35.

         The evidence amply proved that Appellant was responsible for killing the victim. Appellant's use of the gun on the victim allowed the jury to infer the specific intent to kill necessary for a finding of first-degree murder. Appellant's claim that the inference in this case was improper because "he did not aim the gun at a specific area of the victim's body, " is specious. Appellant's Brief at 12. In Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007), the appellant argued that there was insufficient evidence to sustain a conviction of first-degree murder because he merely aimed in the victim's direction, which could not "rationally support an inference that he had the specific intent to kill; rather, the evidence is equally consistent with the probability that [he] sought only to scare or wound" the victim. Id. at 607. The High Court found that the appellant's claim had no merit. It specifically rejected the proposition that it had to conclude a defendant intentionally aimed at a vital part of the victim's body before it could find sufficient evidence to support an inference of the specific intent to kill. Id. Rather, our Supreme Court held that "the critical inquiry is the use of a deadly weapon on a vital part of the body, not the intentional aiming of the weapon at a vital part of the body." Id. (emphasis in original) (internal quotations and citations omitted). This issue lacks merit.

         Next, we address Appellant's claim that there is insufficient evidence in the record showing that Appellant acted with the necessary malice for aggravated assault. Appellant's Brief at 23. Appellant fails to adequately develop this contention, asserting only that "[d]espite permissible inferences from use of a deadly weapon to a vital organ and unlawful possession of a firearm, as argued in his first argument disputing sufficiency for specific intent, the Appellant avers the evidence failed to show that he had the requisite malice as required for . . . aggravated assault." Appellant's Brief at 23-24. While he cites to case law defining and describing malice, Appellant wholly fails to substantiate his claim with citation to relevant cases or develop his contention. This failure to adequately develop and support his issue results in waiver. See Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015) (quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2013), which stated that "where an appellate brief fails to . . . develop an issue in any other meaningful fashion capable of review, that claim is waived. It is not the obligation of an appellate court to formulate [the] appellant's arguments for him.") (internal quotations omitted)).

         Even if not waived, we would reject the claim, as did the trial court. Opinion and Order, [6] 10/11/16, at 14. Aggravated assault is defined as follows:

§ 2702. Aggravated assault
(a) Offense defined.-A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

18 Pa.C.S. § 2702. Malice is a crucial element of aggravated assault and is established when there is a "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty . . . ." Commonwealth v. McClendon, 874 A.2d 1223, 1229 (Pa. Super. 2005). In the absence of any specific argument, we would rely on the premise that a jury may infer malice "based on the defendant's use of a deadly weapon on a vital part of the victim's body." Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015) (citing Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014)).

         We next address Appellant's claim that the Commonwealth failed to disprove he acted in self-defense. Appellant's Brief at 18. He suggests that the uncontested evidence established that he did not provoke the use of force. Id. Appellant acknowledges that he had a duty to retreat but asserts that he did not have the ability to do so. Id. at 18-19. Once again, Appellant liberally refers to testimony at trial without supporting reference to the notes of testimony. Id. at 18-19.

         A claim of self-defense requires evidence establishing the following three elements:

"(a) that the defendant reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and (c) that the defendant did not violate any duty to retreat." Commonwealth v. Samuel, 527 Pa. 298, 590 A.2d 1245, 1247-48 (1991). See also Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441, 449 (1997); 18 Pa.C.S. § 505.2. Although the defendant has no burden to prove self-defense, . . . before the defense is properly in issue, "there must be some evidence, from whatever source, to justify such a finding." Once the question is properly raised, "the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense." Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627, 630 (1977). The Commonwealth sustains that burden of negation "if it proves any of the following: that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that he was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save himself therefrom; or that the slayer violated a duty to retreat or avoid the danger." Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506, 507 (1980).

Commonwealth v. Mouzon, 53 A.3d 738, 740-741 (Pa. 2012).

         The Pennsylvania Crimes Code governs self-defense and provides, in relevant part, as follows:

§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the person.-
The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force.-
* * *
(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating. . . .
* * *
(2.3) An actor who is not engaged in a criminal activity, who is not in illegal possession of a firearm and who is attacked in any place where the actor would have a duty to retreat under paragraph (2)(ii) has no duty to retreat and has the right to stand his ground and use force, including deadly force, if:
(i) the actor has a right to be in the place where he was attacked;
(ii) the actor believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping or sexual intercourse by force or threat; and
(iii) the person against whom the force is used displays or otherwise uses:
(A) a firearm or replica of a firearm as defined in 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms); or
(B) any other weapon readily or apparently capable of lethal use.

18 Pa.C.S. § 505(a)-(b); Commonwealth v. Smith, 97 A.3d 782, 786 (Pa. Super. 2014).

         We rely on the trial court's rejection of this claim:

Appellant avers the Commonwealth failed to disprove self-defense beyond a reasonable doubt where all uncontested evidence established that the victim and at least one friend jumped Appellant. The evidence was not uncontested. The Commonwealth presented evidence that although the victim approached Appellant neither the victim nor his friend punched Appellant or jumped him. Archie Bell testified that neither he nor the victim punched Appellant and [no] one else was with them at the time. N.T., April 12, 2016, at 36-37. Christofer Snyder testified that he saw Appellant, his baby's mother (Shariah Worthy), and two Indian/Native American-looking men (the victim and Archie Bell) discussing something loudly or having an irritable moment. N.T., April 12, 2016, at 104-105, 118. They were just at the end of the building talking. Id. at 116. He didn't see the two men running down the street toward the end of the building. Id. He didn't see any altercation; he heard noises ...

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