Com. v. Smith, E.

• Court: Superior Court of Pennsylvania
• Decided: January 15, 2025
• Docket: 901 EDA 2023
• Status: Unpublished

Opinion

J-S31001-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC SMITH : : Appellant : No. 901 EDA 2023

Appeal from the Judgment of Sentence Entered March 7, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005410-2019

BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.

MEMORANDUM BY BOWES, J.: FILED JANUARY 15, 2025

Eric Smith appeals from the judgment of sentence of eleven months and

fifteen days to twenty-three months of imprisonment imposed after a jury

convicted him of hindering apprehension or prosecution graded as a third

degree felony. He challenges the sufficiency of the evidence supporting his

convictions. We affirm.

The certified record sustains the following factual summary:

[At approximately 2:15 p.m. o]n April 11, 2019, Appellant, Shabazz Sweets, Dominic Hylton, and several others were standing outside Appellant’s house at 4727 Benner Street in Philadelphia when they spotted Timothy Sherfield amongst a group of four people approaching from the next block over. Just a couple weeks earlier, Sherfield had shot Hylton in the leg while he was at Appellant’s house. Two of the individuals standing outside 4727 Benner Street began firing gunshots at Sherfield. Michael Gleba, who was working at a nearby auto shop, was struck by one of the gunshots fired in Sherfield’s direction and subsequently died from his injuries. Appellant fled the scene with the two shooters in his Nissan Maxima. Police identified Appellant J-S31001-24

and Sweets as suspects involved in the shooting and ultimately apprehended them at Sweets’s residence.

Trial Court Opinion, 11/16/23, at 1-2 (parenthetical numbers omitted).

The Commonwealth charged Appellant with murder, attempted murder,

criminal conspiracy, aggravated assault, and hindering apprehension or

prosecution. He was tried jointly with his cohort Sweets.1 The Commonwealth

presented the testimony of several expert witnesses, lay witnesses,

photographic evidence, and a compilation of surveillance recordings. The jury

acquitted Sweets of all charges and acquitted Appellant of all charges except

for hindering apprehension or prosecution. Id. at 2. The trial court imposed

the sentence outlined above, awarded credit for time served, and granted

immediate parole. This timely appeal followed.

Appellant complied with the trial court’s order to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925 (b), raising the

same claim that he reiterates on appeal as “ Whether the evidence was legally

insufficient to sustain the jury’s verdict?” Appellant’s brief at 4.

In reviewing a challenge to the sufficiency of the evidence, we apply the

following standard.

____________________________________________

1 Sweets was charged with murder, attempted murder, criminal conspiracy,

aggravated assault, possessing instruments of crime, and two violations of the Uniform Firearms Act. No charges were filed against Hylton, who the Commonwealth presented as a hostile witness and whose testimony the Commonwealth impeached with prior inconsistent statements given to police after the shooting.

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We assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner. We must determine whether there is sufficient evidence to enable the fact-finder to have found 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 that of the factfinder. 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. Wallace, 244 A.3d 1261, 1273-74 (Pa.Super. 2021)

(quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super. 2011))

(cleaned up).

Appellant avers that the evidence was insufficient to sustain the

conviction for hindering apprehension or prosecution because it did not

establish that he harbored Sweets or acted with the requisite knowledge that

Sweets had committed an underlying crime. Appellant’s brief at 19-22

Appellant argues that the evidence established only that he left the scene of

an active shooting with two other individuals. Id. at 20. He continues, ”th[is]

evidence failed to prove beyond a reasonable doubt that it was any of the

shooters who entered Appellant’s car.” Id. Appellant also asserts that the

record did not establish that he knew of the decedent’s injuries prior to fleeing

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or demonstrate which party initiated the gunfire. Id. at 21. Overall, noting

both the potential applicability of the affirmative defenses of justification and

self-defense, and the fact that both he and Sweets were acquitted of all the

remaining charges, Appellant contends that “the Commonwealth failed to

prove beyond a reasonable doubt [that] Appellant was aware that a crime had

occurred or that any of the individuals who entered his car were likely the

shooters.” Id. at 21 (emphasis and internal quotations omitted).

A person is guilty of hindering apprehension or prosecution when he,

“with intent to hinder the apprehension, prosecution, conviction or

punishment of another for crime or violation of the terms of probation, parole,

intermediate punishment or Accelerated Rehabilitative Disposition, . . .

harbors or conceals the other[.]” 18 Pa.C.S. § 5105(a)(1).2 When the

defendant knows the offense for which the sought-after person is charged with

or liable to be charged with to be a first or second-degree felony, then the

defendant’s own charge is graded as a third-degree felony. If not, then the

defendant’s own charge is graded as a second-degree misdemeanor. 18

Pa.C.S. § 5105(b).

2 Although the Commonwealth charged Appellant with violating 18 Pa.C.S. § 5105(a)(1) (“harbors or conceals”) and the jury convicted him of that specific subparagraph, the trial court’s Rule 1925(a) opinion analyzed the evidence under an alternate subparagraph, § 5105(a)(2), which relates to providing aid or transportation to avoid apprehension or effect escape. We address Appellant’s challenge to the evidence in relation § 5105(a)(1) ever mindful of our obligations to avoid re-weighing the evidence or substituting our judgment for that of the fact-finder, which was the jury in this case.

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The Commonwealth must prove beyond a reasonable doubt that not

only did an offense occur to which the aided person is criminally liable to but

that the defendant knew of the aided person’s liability to that offense,

including an inclination as to its grading. Commonwealth v. Johnson, 100

A.3d 207, 211-12 (Pa.Super. 2014). Indeed, this knowledge must be specific

enough to differentiate between whether the offense was for a crime or a

violation of a court order. Id. at 211, 214. Lastly, the Commonwealth must

offer sufficient evidence to permit the jury to reasonably infer that, knowing

the potential criminal liability, Appellant intended for his conduct to “hinder

the apprehension, prosecution, conviction or punishment of another.” 18

Pa.C.S. § 5105(a)(1).

The Commonwealth need not have direct evidence to obtain a conviction

but may secure one “wholly on circumstantial evidence.” Commonwealth v.

Bullock, 170 A.3d 1109, 1119 (Pa.Super. 2017). Likewise, the

Commonwealth may prove intent by circumstantial evidence permitting the

jury to infer the defendant’s intent from his conduct or the factual situation

surrounding the offense at issue. Id. This is because “intent is a subjective

frame of mind; it is of necessity difficult of direct proof.” Id. (quoting

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa.Super. 2005)).

For the following reasons, we conclude that: the Commonwealth

proffered sufficient evidence to prove beyond a reasonable doubt that: (1) a

crime occurred; (2) those criminally liable were among Appellant’s group

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outside his residence, (3) the perpetrator is liable for a first-degree felony;

and (4) Appellant harbored the assailant knowing his criminal liability.

First, the evidence was sufficient to establish that two shooters were

with Appellant and his group outside of his residence at 4727 Benner Street.3

Officer Craig Perry testified on behalf of the Commonwealth that he recovered

seventeen fired cartridge casings from the crime scene in front of Appellant’s

residence and a line of adjacent garages. N.T., 12/7/23, at 193-96, 211-14,

218-227. Officer Robert Stott, an expert witness in the field of firearms and

tool mark examinations for the Commonwealth, testified that two different

calibers were found among the seventeen fired cartridge casings recovered:

ten .45 auto and seven .40 Smith & Wesson caliber. N.T., 12/8/22, at 49.

Hence, he believed that two separate firearms were discharged at that

location. Id. at 54. Furthermore, Officer Stott testified that, based on his

observation of the surveillance video of the shooting and the photographs

taken of the seventeen fired cartridge casings, it was unlikely that if Sherfield’s

group had fired any shots as they approached from one block away, that their

fired cartridge casings would have landed among the seventeen that were

3 Appellant neither contested that a shooting occurred nor that he was present

outside 4727 Benner Street at the time of the shooting. See Appellant brief at 20-22. Instead, Appellant attempts to cast doubt as to the criminal liability of the shooters, implying that this is a case of self-defense in which he was a collateral participant. See Appellant brief at 20-22. For the reasons articulated in the body of this memorandum, we are not persuaded by these arguments.

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recovered near Appellant’s residence. Id. at 64. This evidence, when viewed

in the light most favorable to the Commonwealth, sufficed for the jury to

conclude that there were two shooters from among the group outside of

Appellant’s home.

Likewise, the evidence was sufficient to prove beyond a reasonable

doubt that a crime occurred and that the two shooters in Appellant’s group

were criminally liable for murder of the third degree pursuant to 18 Pa.C.S. §

2502(c), which our High Court has summarized thusly:

To convict a defendant of the offense of third[-]degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought. This Court has long held that malice comprehends not only a particular ill-will, but also a wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (citation

omitted).

In this immediate case, the jury may reasonably infer from the

Commonwealth’s evidence that by discharging seventeen projectiles on an

active urban residential street during mid-afternoon, the shooters from

Appellant’s group demonstrated both malice to the safety of others, namely

Sherfield’s group and any innocent bystanders such as the victim, Michael

Gleba, and a conscious disregard of social duty and the high risk of serious

bodily injury. As it is of no moment that Mr. Gleba was not the intended target,

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the Commonwealth presented sufficient evidence to prove beyond reasonable

doubt that the conduct constituted murder of the third degree.4

Appellant attempts to challenge criminal liability by citing favorable

testimony that someone in Sherfield’s group was the aggressor and by

referencing the court’s discussion with counsel concerning a potential self-

defense instruction. Appellant’s brief at 21; N.T., 12/9/22 at 114-117, 142-

148. However, this argument finds no purchase here. As a preliminary

matter, the certified record transmitted on appeal does not include the jury

instructions so we are unable to determine whether the trial court believed

the justification instruction was warranted. More importantly, Appellant

concedes that the certified record does not establish which group initiated the

firefight. See Appellant’s brief at 21. Given that the evidence must be viewed

in the light most favorable to the Commonwealth, with all reasonable

inferences proceeding from it, Appellant’s challenge to the Commonwealth’s

4 At a minimum, the two assailants were criminally liable for second-degree

felony aggravated assault with a deadly weapon, which a person commits where he “attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.” 18 Pa.C.S. § 2702(a)(4), (b). Aggravated assault requires the perpetrator to possess a malicious mind which means “where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017). Here, evidence that the two attackers fired seventeen shots on an active city street demonstrates a conscious disregard for the extremely high risk that their actions would cause death or serious bodily harm. As a second-degree felony, aggravated assault with a deadly weapon also satisfies the threshold to charge hindering apprehension or prosecution as a felony pursuant to § 5105(b).

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evidence is unpersuasive. Nothing in the record undermines the evidence-

based inference that Appellant’s group initiated the shooting without

justification. As a result, the evidence sufficiently supported a finding that the

shooters were criminally liable for third-degree murder.

We next examine whether the evidence is sufficient for the jury to

reasonably infer that Appellant intended to hinder the apprehension of the

shooters. In proving intent, the Commonwealth must provide sufficient

evidence for the jury to infer beyond a reasonable doubt that Appellant knew

that a crime occurred, that the aided person was criminally liable, and that

the grading of the underlying crime was a second or first-degree felony. See

Johnson, 100 A.3d at 211-12, 214.

Appellant argues that insufficient evidence was presented to prove that

he knew of his cohorts’ involvement in the underlying crime or that he

knowingly drove them away with the intent to impede apprehension.

Appellant’s brief at 20-21. In support of this position, he notes his lack of

knowledge of Mr. Gleba’s fatal injuries, reiterates the favorable evidence that

suggests that Sherfield’s group initiated the violence, and reasons that

inferences drawn from the inconsistent jury verdicts preclude any finding of

intent. Id. at 20-22. We address the components of this argument seriatim,

and for the following reasons, we reject it.

First, Appellant’s immediate knowledge of Mr. Gleba’s injuries is

irrelevant. To uphold the conviction for hindering apprehension or prosecution

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the Commonwealth was tasked only with establishing Appellant’s knowledge

of the underlying offense to which his cohorts were potentially criminally

liable, i.e., murder of the third degree, for shooting wildly on an active city

street. See 18 Pa.C.S. § 5105(a). Furthermore, in utter contravention of our

well-ensconced standard of review requiring that we examine the evidence in

the light most favorable to the Commonwealth as the verdict winner, Appellant

insists upon invoking sympathetic testimony to undermine the

Commonwealth’s evidence. However, as previously discussed in rejecting his

prior invocation of self-defense in this context, the evidence, when viewed in

the light most favorable to the Commonwealth, supported the finding that

Appellant, while present at the scene on an urban street, knew that a crime

occurred when two people from among his group brandished pistols in a public

city street and opened fire on several people without justification. Hence, the

jury reasonably inferred from the evidence that Appellant knew the shooters

were potentially criminally liable for third-degree murder and that such a crime

was a felony of the first degree. See Commonwealth v. Lore, 487 A.2d

841, 854 (Pa.Super.1984) (knowledge that assailant shot and killed victim

was sufficient to grade hindering prosecution as felony).

Likewise, the evidence established that defendant harbored the two

shooters with the intent of hindering their apprehension by fleeing from the

scene of the shootout. The surveillance video that the Commonwealth

presented during trial showed Appellant, having just witnessed his cohorts

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discharge several rounds at Sherfield, the intended victim, depart the crime

scene with Sweets and the other unidentified shooter in his car. Based on this

evidence, the testimony that the Commonwealth presented at trial, and all

reasonable inferences drawn therefrom, we conclude that the evidence was

sufficient to prove beyond a reasonable doubt that Appellant committed felony

hindering apprehension or prosecution.

Finally, as to the relevance of the inconsistency between Appellant’s

conviction for hindering apprehension or prosecution and his acquittals on the

remaining charges, we reject Appellant’s contention that “the Commonwealth

failed to prove beyond a reasonable doubt Appellant was aware that a crime

had occurred or that any of the individuals who entered his care were likely

the shooters.” Appellant’s brief at 21 (emphasis and internal quotes omitted).

Stated plainly, this Court is prohibited from gleaning from acquittals an

inference of any factual findings by the jury on the case. Commonwealth v.

Baker-Myers, 255 A.3d 223, 235 (Pa. 2021)5 (reiterating prior case law,

5 In Baker-Myers, our Supreme Court recognized a limited exception to this

general rule when applied to a conviction for corruption of minors based on a Chapter 31 offense where the indictment alleged and the trial court specifically instructed the jury regarding the predicate Chapter 31 offense and the jury acquitted the defendant of those offenses. The High Court reasoned thusly:

Although the Commonwealth is not required to formally charge or secure a conviction for a predicate Chapter 31 offense, where, as here, the jury is specifically instructed on the predicate offense or offenses pertaining to the corruption of minors charge, and the jury then renders an acquittal on all such predicates, a conviction (Footnote Continued Next Page)

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“although the defendant’s ‘murder and attempted murder acquittals may be

logically inconsistent with his [possessing instruments of crime] conviction, in

light of our enduring acceptance of inconsistent verdicts in Pennsylvania, the

acquittals are not grounds for reversal of the defendant's . . . conviction.’”)

(cleaned up). This principle recognizes that a jury’s decision to acquit may be

due to leniency towards the defendant, a compromise among the jurors, or

even a mistake. Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa.

2014). Thus, while Appellant argued that the inconsistent jury verdicts

undermined the evidence that supported his conviction, that claim is

meritless. Baker-Myers, 255 A.3d at 235 (“we do not disturb the

longstanding principle permitting inconsistent verdicts or its corollary that

for felony corruption of minors cannot stand. In reaching this conclusion, we do not disturb the longstanding principle permitting inconsistent verdicts or its corollary that factual findings may not be inferred from a jury's acquittal. Instead, we simply recognize the statute’s unusual phrasing has left it vulnerable to “idiosyncratic sufficiency challenges” [where the fact of the acquittal, rather than any inferences drawn from it, is the sole basis of finding an essential element of the offense missing.]

Commonwealth v. Baker-Myers, 255 A.3d 223, 235 (Pa.2021) (emphasis added) (cleaned up). This limited exception does not apply to the case at bar insofar as, unlike the corruption of minors offense outlined in 18 Pa.C.S. § 6301(a)(1)(ii), hindering apprehension and prosecution is not founded upon a predicate conviction as an element of the offense. Indeed, evidence of the aided person’s conviction is not necessary. It is sufficient to present evidence that the defendant knows the person aided is liable to be charged with the underlying conduct. As discussed in the body of this memorandum, the Commonwealth presented evidence that Appellant understood Sweets was liable to be charged with third-degree murder when he opened fire on Sherfield and his associates.

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factual findings may not be inferred from a jury’s acquittal”). As the evidence

exists to allow the jury to determine beyond a reasonable doubt each element

of hindering apprehension and prosecution, Appellant’s sufficiency claim fails.

For all the foregoing reasons, we find the evidence sufficient to sustain

the conviction.

Judgment of sentence affirmed.

Date: 1/15/2025

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