Com. v. Ross, S.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2023
• Docket: 735 WDA 2022
• Status: Unpublished

Opinion

J-S01043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWDEN L. ROSS : : Appellant : No. 735 WDA 2022

Appeal from the Judgment of Sentence Entered June 10, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001953-2019

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: May 23, 2023

Appellant, Shawden L. Ross, appeals from the aggregate judgment of

sentence of 20 to 40 years’ incarceration imposed after his conviction by a

jury of third-degree murder1 and his plea of guilty to possession of a firearm

by a prohibited person.2 After careful review, we affirm.

This case arises out of the shooting death of Lamont Simmons (Victim),

who was found shot and lying face down in Arnold, Pennsylvania in the early

morning of April 5, 2019. Appellant was charged with criminal homicide,

possession of a firearm by a prohibited person, and receiving stolen property.

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 2502(c). 2 18 Pa.C.S. § 6105(a)(1). J-S01043-23

On March 21, 2022, the Commonwealth dismissed the receiving stolen

property charge and the firearms charge was deferred for disposition after

trial of the criminal homicide charge. Trial Court Opinion at 2. The criminal

homicide charge was tried to a jury from March 21, 2022 to March 24, 2022.

The Commonwealth called 11 witnesses at trial, including Officer Haus,

the Arnold police officer who found Victim and conducted the initial

investigation to identify who shot Victim; Rasaun Kennedy, who was with

Appellant at the time of the shooting; Officer Stebler and Detective Roach, an

Arnold police officer and a county detective who participated in a search of the

residence where Appellant and Kennedy were on the morning of the shooting;

the forensic pathologist who autopsied Victim; and a firearms expert. The

Commonwealth also admitted in evidence video recordings and still

photographs from video cameras on a utility pole and on private residences in

the area.

Officer Haus’s testimony and the video recordings showed that shortly

before the shooting, Appellant, Kennedy, and Victim left a house at 16061/2

Fourth Avenue, approximately one block from where Victim was found, and

walked toward the alley where the shooting occurred. N.T. Trial, 3/22/22, at

41-63, 65-75, 88-89; Commonwealth Exs. 3, 6, 10. The video recordings and

still photographs showed Appellant pointing a gun at Victim’s head as they

walked. N.T. Trial, 3/22/22, at 69-72; Commonwealth Exs. 3, 4, 6, 7, 8, 9.

The video recordings further showed two individuals running in the area near

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the alley toward 16061/2 Fourth Avenue less than a minute later and Appellant

and Kennedy returning to 16061/2 Fourth Avenue. N.T. Trial, 3/22/22, at 52-

53, 71, 75; Commonwealth Exs. 3, 6, 10. There was no video camera that

covered the alley where the shooting occurred, and the shooting was not

captured on video. N.T. Trial, 3/22/22, at 77-78, 198. Officer Haus testified

that after he viewed the pole camera recording the morning of the shooting,

he went to 16061/2 Fourth Avenue, which was the residence of a woman

named Alicia Painter, and that Appellant and Kennedy were both there and

wearing clothes similar to the clothes that they were wearing in the video

recordings. Id. at 56, 59-63.

Kennedy testified that he was drinking alcohol and smoking marijuana

at Painter’s residence on the night of April 4 to 5, 2019, and that Appellant

and Victim came to the house twice. N.T. Trial, 3/22/22, at 99-105. Kennedy

testified that the first time they were there, Appellant and Victim were in good

mood and stayed for a half-hour or 45 minutes and left. Id. at 102-04.

Kennedy testified that Appellant and Victim later came back to the house and

that Appellant was angry and pointing a gun at Victim. Id. at 104-06.

Kennedy testified that he told Appellant to go outside, that Appellant and

Victim went outside, and that he followed them out. Id. at 105-07. Kennedy

testified that they walked down the street and into an alley and that after they

got in the alley, Victim started running and Appellant shot at him twice. Id.

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at 106-09, 114-19. Kennedy testified that after Appellant shot at Victim, he

and Appellant ran back to Painter’s house. Id. at 107, 109.

The pathologist testified that Victim suffered three gunshot wounds, that

all the bullets entered through the back of his body, and that she recovered

three bullets from his body. N.T. Trial, 3/23/22, at 231-37. The pathologist

testified that one of the bullets struck Victim in the left flank and went into his

chest, one bullet struck him the lower back, and the other bullet struck him in

the left buttocks. Id. at 234-37. The pathologist opined that the gunshot

wound from the bullet that struck Victim’s left flank caused his death. Id. at

237-38.

Officer Stebler testified that he participated in searching 1606 1/2 Fourth

Avenue after a search warrant was obtained and that he found a black

handgun in a second-floor bedroom. N.T. Trial, 3/22/22, at 166-70. Detective

Roach testified that he found mail addressed to Appellant in a backpack that

was found in the closet of the bedroom where the gun was found. N.T. Trial,

3/23/22, at 288-91, 319-22, 335-36. The firearms expert testified that he

test fired the handgun that was found in the 16061/2 Fourth Avenue bedroom

and compared the bullets fired from the handgun to those found in Victim’s

body. N.T. Trial, 3/24/22, at 426-32. The firearms expert opined that one of

the bullets from Victim’s body was discharged from the handgun that was

found in the 16061/2 Fourth Avenue bedroom, but that the condition of the

other two bullets did not permit him to determine whether they were fired

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from that handgun. Id. at 432-35. Appellant did not testify or call any

witnesses. Id. at 442-49.

On March 24, 2022, the jury acquitted Appellant of first-degree murder

and found Appellant guilty of third-degree murder. N.T. Trial, 3/24/22, at

510-12. Following the verdict, Appellant pled guilty to possession of a firearm

by a prohibited person. Id. at 512-14. On June 10, 2022, the trial court

sentenced Appellant to 20 to 40 years’ incarceration for third-degree murder

and imposed a concurrent sentence of 5 to 10 years’ incarceration for

possession of a firearm by a prohibited person, resulting in an aggregate

sentence of 20 to 40 years’ incarceration. N.T. Sentencing at 14; Sentencing

Order. Appellant filed no post sentence motion and timely appealed on June

22, 2022.

Appellant presents the following single issue for our review:

Whether the Appellant’s conviction is supported by sufficient evidence given the sole identification testimony was based on the self-motivated testimony of the Appellant’s uncharged co- defendant, Rasaun Kennedy?

Appellant’s Brief at 2.

Our standard of review in a challenge to the sufficiency of the evidence

is well-settled:

The standard we apply in reviewing the sufficiency of the evidence is whether 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

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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. ... Finally, the finder 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. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017) (quoting

Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014)).

The elements of the offense of third-degree murder are a killing of an

individual with malice. Commonwealth v. Jones, 271 A.3d 452, 458 (Pa.

Super. 2021); Commonwealth v. Patterson, 180 A.3d 1217, 1230 (Pa.

Super. 2018); Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa. Super.

2009) (en banc). Malice includes not only particular ill will toward the victim,

but also wickedness of disposition, hardness of heart, wantonness, and

cruelty, recklessness of consequences, and conscious disregard by the

defendant of an unjustified and extremely high risk that his actions may cause

serious bodily harm. Commonwealth v. Young, 431 A.2d 230, 232 (Pa.

1981); Jones, 271 A.3d at 458; Commonwealth v. Devine, 26 A.3d 1139,

1146 (Pa. Super. 2011). In addition to proving these statutory elements of

the crime beyond a reasonable doubt, the Commonwealth was also required

to introduce sufficient evidence for the jury to find that Appellant was a

perpetrator of the crime. Commonwealth v. Smyser, 195 A.3d 912, 915

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(Pa. Super. 2018); Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa. Super.

2010).

Appellant does not dispute that the evidence was sufficient to prove the

elements of third-degree murder with respect to the person who shot Victim.

Rather, Appellant contends that the evidence was insufficient to prove that he

shot Victim because Kennedy’s testimony was allegedly the only evidence that

Appellant was the perpetrator and Kennedy was not credible. This argument

fails for two reasons.

First, the claim that a witness, even a key witness, was not credible is

not a basis on which the evidence may be found insufficient to support a

conviction. Sufficiency of the evidence review does not include an assessment

of the credibility of the testimony offered by the Commonwealth.

Commonwealth v. Crosley, 180 A.3d 761, 768 n.2 (Pa. Super. 2018);

Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003).

Challenges to the credibility of witnesses are challenges only to the weight of

the evidence, not its sufficiency. Commonwealth v. Kinney, 157 A.3d 968,

972 (Pa. Super. 2017); Commonwealth v. Samuel, 102 A.3d 1001, 1005

(Pa. Super. 2014). Appellant has not argued in this appeal that his conviction

was against the weight of the evidence. Moreover, Appellant has waived any

challenge to the weight of the evidence, as he made no motion in the trial

court asserting that that the verdict was against the weight of the evidence.

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Pa.R.Crim.P. 607(A); Commonwealth v. Cox, 231 A.3d 1011, 1018 (Pa.

Super. 2020); Kinney, 157 A.3d at 972.

While testimony that contradicts undisputed physical facts or the laws

of nature may be found insufficient to support a conviction, Commonwealth

v. Widmer, 744 A.2d 745, 751 (Pa. 2000), nothing in Kennedy’s testimony

was physically impossible or irreconcilable with any undisputed facts.

Testimony of a single witness, even if uncorroborated, can constitute sufficient

evidence by itself to support a conviction. Commonwealth v. Gilliam, 249

A.3d 257, 268 (Pa. Super. 2021); Crosley, 180 A.3d at 768. Here, Kennedy’s

testimony was partially corroborated by the video recordings.

Second, the evidence was sufficient without Kennedy’s testimony. The

pathologist testified that Victim was shot in the back three times, that one of

those shots was to the torso, and that the shot to the torso killed Victim. N.T.

Trial, 3/23/22, at 231-38. That is sufficient to prove to prove the elements of

third-degree murder. Evidence that a person intentionally fired a gun directly

at another person is sufficient to show malice. Young, 431 A.2d at 232;

Jones, 271 A.3d at 460; Devine, 26 A.3d at 1150.

The circumstantial evidence at trial by itself was sufficient to prove that

Appellant shot Victim. The video camera evidence showed Appellant walking

with Victim and Kennedy toward the alley shortly before the shooting,

Appellant pointing a gun at Victim’s head as they walked, and Appellant and

Kennedy returning without Victim. N.T. Trial, 3/22/22, at 51-56, 60-63, 69-

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75; Commonwealth Exs. 3, 4, 6, 7, 8, 9, 10. In addition, the Commonwealth

introduced evidence that the gun that killed Victim was found in the house

where Appellant was staying in the same room where a backpack containing

mail addressed to Appellant was also found. N.T. Trial, 3/22/22, at 166-70;

N.T. Trial, 3/23/22, at 288-91, 319-22, 335-36; N.T. Trial, 3/24/22, at 432-

35.

Because the evidence at trial was sufficient to prove that Appellant was

guilty of third-degree murder, Appellant’s lone claim of error in this appeal is

without merit. We therefore affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/23/2023

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