Com. v. Harris, S.

• Court: Superior Court of Pennsylvania
• Decided: November 10, 2016
• Docket: 2388 EDA 2015
• Status: Unpublished

Opinion

J-S70012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

STEPHON HARRIS,

Appellant No. 2388 EDA 2015

Appeal from the Judgment of Sentence of February 20, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010090-2013

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 10, 2016

Appellant, Stephon Harris, appeals from the judgment of sentence

entered on February 20, 2015, as made final by the denial of his post-

sentence motion on June 30, 2015. We affirm.

The trial court accurately summarized the factual background of this

case as follows:

These charges arose out of a dispute over a woman that both the Appellant and the decedent had an interest in. On July 9, 2013, at approximately 9:45 [p.m.], John Anderson (“Anderson”) . . . was shot and killed in the entryway of [his apartment]. The entryway at this location had a street entrance door and a second door that led up to the single, second floor apartment that Anderson shared with Naheem Hines (“Hines”), and Mohamad Khardani (“Khardani”). . . . Khardani owned the building that housed the apartment, and a pizza shop located below the apartment where Khardani worked.

Earlier that day, Anderson had exchanged a series of text messages and phone calls with the girlfriend of Appellant when J-S70012-16

Appellant intercepted his girlfriend’s phone [call] and spoke directly to Anderson. An argument ensued over the phone and Anderson said, “I’m at 72nd, do what you gotta do.” Appellant was visiting his friend Davon Kennedy (“Davon”) . . . and Davon’s cousin[ (and Appellant’s c]o-defendant [Unique] Kennedy [(“Unique”)] . . . when he recounted the argument that he had with [Anderson] over the phone. Appellant said that “Anderson needed to go.” The three [] men walked to a store then Appellant and [Unique] told Davon they would catch up with him later, and walked away together.

That evening, Hines was returning to the apartment when he saw two [] males who appeared to be attempting to open the apartment’s street level entry door. Though the males were unfamiliar to Hines, he was later able to identify [Unique] as one [] of the males. As Hines approached, the two [] males drifted away from the apartment door and towards the pizza shop. Hines asked Khardani, who was working in the pizza shop at the time, if he knew the two [] males. Khardani recognized Appellant as a repeat customer of the pizza shop and greeted him. . . . Khardani did not recognize [Unique].

[Unique] asked Hines whether [Anderson] was at home and said “Ace” was looking for him. Hines replied that he did not know but would check when he went upstairs. Upon arriving upstairs, Hines learned that Anderson was indeed at home along with Tanesha Brooks-Mapp (“Brooks-Mapp”). . . . Hines delivered the message that there were two [] males downstairs who were looking for [Anderson]. Hines, Brooks-Mapp[,] and Anderson went downstairs to the main entry of the apartment. Anderson was unarmed. As soon as Anderson began to open the interior door, five to six [] gunshots rang out and Anderson fell to the floor in the doorway of the apartment. Hines was able to see that [Unique] was the shooter and saw the two [] males with whom he had spoken earlier running across the street, away from the scene of the shooting. Khardani was inside of the pizza shop when he heard shots. Khardani looked up to see Appellant and the male he was with running from the scene and Anderson lying on the ground.

Trial Court Opinion, 10/23/15, at 3-4.

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The procedural history of this case is as follows. On August 19, 2013,

the Commonwealth charged Appellant via criminal information with first-

degree murder1 and conspiracy to commit first degree murder.2 On

February 20, 2015, Appellant was found guilty of both charges and

immediately sentenced to an aggregate term of life imprisonment without

the possibility of parole. On March 2, 2015, Appellant filed a post-sentence

motion. That motion was denied via operation of law on June 30, 2015.

This timely appeal followed.3

Appellant presents two issues for our review:

1. W[as] the evidence [] sufficient to sustain a conviction for conspiracy[?]

2. W[as] the evidence sufficient to sustain a conviction for first[-]degree murder where there was no evidence of specific intent[?]

Appellant’s Brief at 4 (excess capitalization omitted).

Both of Appellant’s issues challenge the sufficiency of the evidence.

“Whether sufficient evidence exists to support the verdict is a question of

1 18 Pa.C.S.A. § 2502(a). 2 18 Pa.C.S.A. §§ 903, 2502. 3 On July 30, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On September 4, 2015, Appellant filed his concise statement. On October 23, 2015, the trial court issued its Rule 1925(a) opinion.

The Commonwealth argues that Appellant waived his first issue on appeal by failing to include it in his concise statement. Although Appellant’s concise statement is not a model of clarity, we decline to find waiver on this basis.

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law; our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (citation

omitted). “In assessing Appellant’s sufficiency challenge, we must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that the Commonwealth proved

[each] element of the crime beyond a reasonable doubt.” Commonwealth

v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted). “The

evidence need not preclude every possibility of innocence and the fact-finder

is free to believe all, part, or none of the evidence presented.”

Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation

omitted).

In his first issue, Appellant argues that there was insufficient evidence

to convict him of conspiracy to commit murder. In order to convict a

defendant of conspiracy to commit an offense, “the Commonwealth must

establish the defendant: 1) entered into an agreement to commit or aid in

an unlawful act with another person or persons; 2) with a shared criminal

intent; and 3) an overt act was done in furtherance of the conspiracy.”

Commonwealth v. Dantzler, 135 A.3d 1109, 1114 (Pa. Super. 2016) (en

banc) (internal quotation marks and citation omitted). “[A] conspiracy may

be inferred where it is demonstrated that the relation, conduct, or

circumstances of the parties, and the overt acts of the co-conspirators

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sufficiently prove the formation of a criminal confederation.”

Commonwealth. v. Orie Melvin, 103 A.3d 1, 43 (Pa. Super. 2014)

(citation omitted).

Appellant argues that the Commonwealth failed to prove the first

element of conspiracy, i.e., that he entered into an agreement with Unique

to commit murder. There was, however, overwhelming evidence that

Appellant and Unique entered into an agreement to murder Anderson.

“[A]cting together before, during, and after an attack on another individual

suffices to show a unity of criminal purpose for purposes of sustaining a

conviction for criminal conspiracy[.]” Commonwealth v. Thomas, 65 A.3d

939, 945 (Pa. Super. 2013) (citation omitted). As noted above, Appellant

told Unique that Anderson “had to go.” Unique only knew of Anderson’s

location because Appellant relayed the information Anderson supplied during

their telephone conversation. Appellant and Unique then proceeded to

Anderson’s residence. Appellant was fully aware that Unique was armed at

the time. They then asked Hines if Anderson were home. Once Anderson

came to the door, Unique shot Anderson and then fled the scene with

Appellant. These circumstances establish beyond a reasonable doubt that

Appellant and Unique formed an agreement to murder Anderson.

Appellant argues that he went to Anderson’s residence to peacefully

resolve the dispute regarding Appellant’s girlfriend and that he was unaware

of any plan to murder Anderson. In support of this argument, he cites

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Unique’s trial testimony. The jury, however, found this testimony not

credible. “It is not for this Court to overturn the credibility determinations of

the fact-finder.” Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.

Super. 2006), appeal denied, 919 A.2d 954 (Pa. 2007) (citation omitted).

Instead, the jury inferred that Appellant and Unique entered into an

agreement to murder Anderson. This inference was supported by the record

and, therefore, there was sufficient evidence to convict Appellant of

conspiracy to commit murder.

In his second issue, Appellant argues that the evidence was insufficient

to find him guilty of first-degree murder. In order to convict a defendant of

first-degree murder, “the Commonwealth must [] demonstrate[] that[ ] a

human being was unlawfully killed, the defendant perpetrated the killing,

and the defendant acted with malice and a specific intent to kill.”

Commonwealth v. Ovalles, 144 A.3d 957, 969 (Pa. Super. 2016) (internal

quotation marks and citation omitted). Moreover, a “defendant may be liable

for the overt acts committed in furtherance of [a] conspiracy regardless of

which co-conspirator committed the act.” Commonwealth v. Yong, 120

A.3d 299, 312 (Pa. Super. 2015), appeal granted on other grounds, 137

A.3d 573 (Pa. 2016) (citation omitted).

Appellant argues that the Commonwealth failed to prove the requisite

specific intent to kill. “The Commonwealth may establish the mens rea

required for first-degree murder, specific intent to kill, solely from

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circumstantial evidence.” Commonwealth v. Tucker, 143 A.3d 955, 964

(Pa. Super. 2016) (citation omitted). Appellant focuses on case law

addressing shooting an individual in a vital part of the body to prove specific

intent to kill. This ignores, however, the fact that the jury could have drawn

an inference of “a specific intent to kill . . . from the manner in which the

homicide was committed, such as, multiple gunshot wounds.”

Commonwealth v. Hughes, 865 A.2d 761, 793 (Pa. 2004). As noted

above, Anderson suffered five gunshot wounds. Together with the evidence

that Appellant told Unique that “Anderson has to go,” the evidence was

sufficient for the jury to infer that Appellant possessed the requisite specific

intent to kill.

Appellant also argues that Unique’s testimony at trial established that

the shooting was in self-defense and therefore Appellant lacked the specific

intent to kill. “The evidence does not need to disprove every possibility of

innocence, and doubts as to guilt, the credibility of witnesses, and the

weight of the evidence are for the fact-finder to decide.” Commonwealth

v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (citation omitted). In this

case, the jury did not credit Unique’s self-defense testimony. Instead, the

jury determined that the multiple gunshot wounds suffered by Anderson

evidenced a specific intent to kill. Again, “[i]t is not for this Court

to overturn the credibility determinations of the fact-finder.” Blackham,

909 A.2d at 320 (citation omitted). Accordingly, both of Appellant’s

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sufficiency challenges are without merit and we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/10/2016

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