Com. v. Shelton, D.

J-A19003-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DALE SHELTON,

Appellant No. 412 WDA 2013

Appeal from the Judgment of Sentence Entered April 12, 2011
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016217-2008

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 1, 2014

Appellant, Dale Shelton, appeals from the judgment of sentence of an

aggregate term of 25-

conviction for third degree murder and related offenses. Appellant claims

the trial court abused its discretion by not removing a juror and by

sentencing Appellant without considering his rehabilitative needs. Appellant

also contends that there was insufficient evidence supporting his conviction

for third degree murder because the Commonwealth failed to disprove self-

defense. After careful review, we affirm.

Unfortunately, the trial court did not provide a summary of the facts

ing produced two Pa.R.A.P.

____________________________________________

*
Former Justice specially assigned to the Superior Court.
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objective summary of the facts, including citations to the pertinent portions

of the trial transcripts, to which the Commonwealth has not raised any

exception.

summary. Thus, we adopt it as our own, with some slight modifications.

The facts adduced at trial are as follows:

On September 24, 2008, several people were shot. [N.T.,
11/16/10 - 11/19/10, at] 64, 71. Sandra Stewart was shot with
a .40-caliber bullet and died as a result of this incident. [Id. at]
235, 321, 347-48.

Dorothy Johnson testified that she sat outside on Curtain
Avenue with Sandra Stewart when shots erupted. [Id. at] 108-
11, 115. They were on Curtain Avenue between the intersection
of Warrington Avenue on one end and Climax Street on the other
end. [Id.
Warrington Avenue and Curtain Avenue. [Id. at] 79.

According to Ms. Johnson, the shots came from Warrington
Avenue. [Id. at] 112. Ms. Johnson had her back to Warrington
Avenue so she could not see what precipitated the gunfire. [Id.
at] 117. Then, she saw Devin Scott run by from the direction of
Warrington Avenue and turn onto Climax Street. [Id. at] 112,
122-23, 125.

Daria Baker testified that she stood outside when this
incident occurred. [Id. at] 263. She saw a man walk by on the
sidewalk and start shooting backwards, towards Warrington
Avenue. [Id. at] 264, 269. He continued up Curtain Avenue.
[Id. at] 269. Those were the first shots that she heard. [Id. at]
264-65, 268. Then, the man ran away. [Id. at] 266, 268.

[Appellant] testified that prior to the incident on
September 24, 2008, he and Devin Scott had an altercation.
[Id. at] 376. Scott approached [Appellant] and hit him in the
back of the head with something. [Appellant] turned and Scott
aimed a gun at his face. [Id. at] 378. Scott threatened to kill
him and demanded money. [Id. at] 379-80. Scott stole

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[Id. at] 379. [Appellant] did not contact the police because he
feared that Scott would retaliate, killing him or his family. [Id.
at] 382. After the robbery, [Appellant] obtained a .40-caliber
firearm from Maurice Williams. [Id. at] 384.

Deenesha Ballard testified that [Appellant] had told her
that Devin Scott robbed him, hit him with a gun, and stole his
Id. at] 281-
mother, Pamela Harless, testified that she learned that Devin
Scott robbed [Appellant] and stole her car. [Id. at] 356-58.
[Appellant] was scared and did not want to contact police for
fear of retaliation. [Id. at] 357-58, 359. [Appellant] also told
Maurice Williams that Devin Scott had robbed him a couple of
months before this incident. [Id. at] 207.

On the day of the shooting, [Appellant] was with Maurice
and Kevin Williams. [Id. at] 387. They were going to find out
about a situation involving fake drugs. [Appellant] and Maurice
dropped off Kevin Williams. They drove on Curtain Avenue
towards Warrington Avenue when [Appellant] saw Devin Scott.
[Id. at] 388-89. This was the first time that [Appellant] had
seen Scott since Scott robbed him and threatened his life with a
gun.

[Appellant testified that] Scott looked directly at [him].
[Id. at] 89[-90]. They made eye contact and [Appellant]
panicked. He was scared because he knew that Scott always
carried a firearm, Scott had threated his life, and the car in
which [Appellant] was riding was coming to a stop at a stop sign
by Scott. [Id. at] 203-04, 390, 392. When the car stopped,
[Appellant] [said he] got out, attempting to run away from
Scott. [Id. at] 390. He saw Scott pull out a gun and fire it at
him. [Id. at] 391. [Appellant] obtained his gun and fired in
response. [Id. at] 391. After this incident, Deenesha Ballard
and [Appellant] went on the run. [Id. at] 284-85.

Maurice Williams confirmed that he, Kevin Williams, and
[Appellant] got into a silver vehicle and went to get a refund for
fake drugs. [Id. at] 199-201, 228-29. They dropped off Kevin
Williams and drove up Curtain Avenue towards Warrington
Avenue. [Id. at] 202, 216, 229. They saw Devin Scott walking
on the sidewalk and [Appellant] said,
Id.
he knew that Maurice Williams was friends with [Appellant]. [Id.
at] 218. When they drove past Scott, he would have been able

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to see [Appellant] in the front seat of the car. [Id. at] 216, 218.
[Appellant] got out of the car, a few seconds passed, and then
Maurice Williams heard gunshots and saw gun smoke. [Id. at]
204. He saw [Appellant] shooting in his rearview mirrors, but
ds Maurice Williams and he
could not see a gun. [Id.

when she passed a person on the sidewalk that walked on
Curtain Avenue in the opposite direction. [Id. at] 149-50. A
silver car passed her, which was going in the same direction that
she walked. [Id. at] 150-51. The car stopped and a person
exited the back seat. After a few seconds, he retrieved a gun.
[Id. at] 151-52, 65. She ducked down by a fence. [Id. at] 151-
52, 165. She heard gunshots, but she did not see the shooting
begin. [Id. at] 152, 165. She looked behind her and saw a
black car backing up with two people shooting out of the car.
[Id. at] 155. She also saw Kevin Williams shooting. [Id. at]

Kevin Williams testified that he was outside on Curtain
Avenue at the time of the incident. [Id. at] 226. He heard
-
caliber firearm. [Id. at] 230-31, 235, 236-37. He saw Scott
running down Curtain Avenue shooting backwards towards
Warrington Avenue. [Id. at] 230, 249. Kevin Williams started
shooting towards Scott. [Id. at] 231, 248. Then, he hid the
gun. [Id. at] 235. Unlike Ms. Harris, he did not see a black car
driving away with people shooting out of the car. [Id. at] 236.

Wanda Lewis heard gunfire and looked out of her window.
She saw someone standing in the middle of Curtain Avenue,
shooting towards Climax Street. [Id. at] 188-89, 194. After
calling 911, she looked out of the window again and saw a man
walking on the street and trying to put his gun away. [Id. at]
190. She could not see if someone was firing a weapon on the
other end of the street. [Id.

Devin Scott, an associate of gang members, testified that

Street. [Id. at] 169, 335-36. He was on house arrest with a
window of time to go to the hospital. Rather, he went to the
store, carrying an illegal firearm. [Id. at] 178-79. He testified
that he heard shots behind him from the Warrington Avenue

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area, so he started running and shooting his nine-millimeter
weapon over his shoulder. [Id. at] 169-70. He threw his nine-
millimeter weapon in the bushes and his shirt in the garbage.
[Id. at] 169, 174, 183. Law enforcement captured him and
charged him with crimes related to this shooting. [Id. at] 175.
He denied ever robbing [Appellant]. [Id. at] 178. Scott was the
only person who could definitively testify that [Appellant] shot
first. [Id. at] 169-70.

There were several people firing weapons during this
incident. [Id. at] 103. There was evidence that showed that
the bullets were being fired down
Store. [Id. at] 102-03. Fourteen .40-caliber casings were found
on the sidewalk, in the parking lot, and on the street. [Id. at]
77, 98-99. The fourteen spent .40-caliber casings were
discharged from the same gun. [Id. at] 311-12. Police
recovered six nine-millimeter casings and two fragments. [Id.
at] 83, 99. The nine-millimeter casings and fragments were all
discharged from the same gun. [Id. at] 313, 315. A .45-caliber
casing, one round, and two fragments were found. [Id. at] 86,
99. The police learned that Kevin Williams illegally had a .45-
caliber weapon that he left on the ground after the gunfight.
[Id. at] 94-99, 103-04. The .45-caliber casings were shot from
the .45-caliber Smith and Wesson possessed by Kevin Williams.
[Id. at] 317-18.

-15.

The Commonwealth charged Appellant by criminal information with

multiple offenses arising out of the events of September 24, 2008.

lusion of his second

jury trial, however, Appellant was convicted of third degree murder, 18

Pa.C.S. § 2502(c), for the death of Sandra Stewart; criminal attempt

homicide, 18 Pa.C.S. § 901(a), for the attack on Devin Scott; aggravated

assault (Scott), 18 Pa.C.S. § 2702(a)(1); firearms not to be carried without

a license, 18 Pa.C.S. § 6106; and six counts of recklessly endangering

another person, 18 Pa.C.S. § 2705.

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J-A19003-14

On April 12, 2011, the trial court sentenced Appellant to an aggregate

term of 25- incarceration. Appellant filed post-sentence motions

which were denied by operation of law on September 26, 2011. He then

filed a timely notice of appeal on October 24, 2011. His trial counsel, Owen

Semen, Esq., filed a timely Rule 1925(b) concise statement of errors

complained of on appeal, and the trial court issued its first Rule 1925(a)

opinion on May 4, 2012. Subsequently, by order dated October 16, 2012,

file a brief.

Attorney Seman filed a motion to withdraw his appearance on January

22, 2013. On January 23, 2013, the trial court granted the motion and

Appellant. Appellant, through current counsel, Assistant Public Defender

Jessica Herndon, then filed a PCRA1 petition seeking reinstatement of his

direct appeal rights. The PCRA court granted his petition by order dated

January 31, 2013, and he filed a nunc pro tunc notice of appeal on March 1,

2013. Appellant then filed a new, timely concise statement on June 5, 2013.

The trial court issued its second Rule 1925(a) opinion on August 27, 2013,

addressing the new concise statement. Appellant now presents the following

questions for our review:

____________________________________________

1
Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.

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1. Did the trial court abuse its discretion by refusing to
dismiss a juror when, during the trial, an outside source
contacted the juror and discussed the trial?

2. Was the evidence sufficient to convict [Appellant] of third
degree murder, attempted homicide, aggravated assault,
and reckless endangerment when he asserted a claim of
self-defense and the Commonwealth failed to disprove
beyond a reasonable doubt that he acted in self-defense?

3. Did the sentencing court abuse its sentencing discretion by
imposing an excessive sentence on [Appellant] without
considering all statutorily required factors, such as

day of his trial. He asserts that an extraneous influence was exerted on a

juror and that a reasonable likelihood of prejudice resulted. The trial court

summarized the situation that occurred as follows:

The jury was sworn and testimony was received on
November 17, 2010. The very next morning, in open court,
without the jury present, the Court informed both counsel that
its tipstaff relayed to it that a particular juror, #7, had an issue.
The issue was Juror #7's daughter had received a phone call
[the prior] evening and [that] the daughter then relayed the
contents of that call to her mother, Juror #7. [N.T., 11/16/10 -
11/19/10, at] 128. After some discussion with counsel, the
Court and counsel retired to chambers to await the arrival of
Juror #7. Juror #7 told this audience of three that her daughter
received a phone call last evening from a friend of the daughter.
The caller told the daughter that your mother (Juror #7) knows
one of the famil[ies] and the family knew her. [Id. at] 134,
135. Further questioning revealed that which family the
defendant's or the victim's was not communicated in the
phone call between the daughter and the caller. [Id. at] 135.
Upon being asked if she knew the defendant's family or the
as no
threat and juror #7 did not feel threatened or intimidated by the
information her daughter relayed to her. [Id. at] 136. After

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someone and they know me, I'll have to tell you all.. Id.
at] 137. The juror then returned to the jury room to await the
start of the proceeding. [Id. at] 137.

Counsel and the Court engaged in further discussion. After
that discussion, the Court expressed its desire to keep her on

Id. at] 139. The Court
then made a credibility determination that was shared by

honest and tell us if she knows someone or if she feels
Id. at] 139.1
going to release her unless there's something of substance that
Id. at] 140. The [Commonwealth] agreed.
Defense counsel understood the reasoning.

___________________
1
Defense counsel's reaction to this observation by the
Id. at] 139.

Trial Court Opinion (TCO), 8/27/13, at 5-6.

at the contact

warranting removal of the juror, we must address whether the claim was

preserved below. The trial court found that the claim was not preserved:

After consulting with [Appellant], defense counsel
expressed the concern of his client. His solution to the issue was
to get the daughter and interrogate her. [N.T., 11/16/10 -
11/19/10, at] 141. This Court rejected that proposal because
and, possibly
exacerbate the situation to the point of it being deemed a threat
to Juror #7. [Id. at] 142.

This entire issue consumed 15 full pages of transcript. [Id.
at] 128-
of that word come from defense counsel's mouth.2 He did not
voice displeasure when the Court concluded Juror #7 would not
be released. He did not voice a complaint when the Court

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Based upon the above analysis, the court finds the issue about
Juror #7 to have been waived.

______________________________
2
On two occasions, [Appellant] references that an
objection was made. In his post[-]sentence motion he
says an objection was made. [Post-sentence Motion],
paragraph 7 (April 21, 2011). In his [first] Concise
See]
paragraph 1(b), line 8. In neither instance does
[Appellant] refer to the specific page of the transcript
where the objection was made. The reason is simple. One
cannot cite to something that was not done.

TCO, at 6-7.

Following the in-chambers interview of Juror #7, defense counsel

informed Appellant that the trial court did not intend to take any further

action with respect to the contact made with the juror. The district attorney,

defense counsel, and the judge again returned to chambers, at which time

the following discussion occurred:

MR. SEMAN: In the interest of making sure that my client is
advised
[Appellant] of what just happened, and I told him that we really

juror. And he has expressed to me some serious concerns,

THE COURT: How does he know?

--

-jerk reaction that anyone would
-- okay. I understand what he

hi

know.

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THE COURT: Okay. Well, what do you do in light of not
knowing?

MR. SEMAN: The only thing I think we could do is bring in
the daughter

[A.D.A.]: Well --

THE COURT: See, when you do that, then you begin to affect the
mother.

[A.D.A.]: Yeah.

THE COURT: Because at th
becomes a threat to her.

MR. SEMAN: I think we also, though, have an issue with -- I
think we should know who contacted a juror, because anyone
involved in this case --

MR. SEMAN: A family member of a juror.

THE COURT: What did they say?

-- the
impression I got was it was someone who -- a friend of the

--
see the damage at this point. I understand your

N.T., 11/16/10 - 11/19/10, at 140-43 (emphasis added).

have been brought in for questioning. However, we agree with the trial

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J-A19003-14

court that at no point did defense counsel specifically request that the trial

court remove the juror.

Nevertheless, Appellant argues that:

[e]ven though defense counsel did not use certain words

concerns, why his client was uncomfortable with allowing Juror
Number Seven to continue on the jury, and his suggestion that
further investigation into this serious matter should occur. The
words that he used sufficiently and adequately conveyed his
objection to allowing this Juror to continue serving unless proper
questioning was completed to ensure that she was impartial.

We agree with Appellant that the lack of a specifically worded

objection did not constitute waiver of his claim under these circumstances.

Because, ot

- 11/19/10,

at 140. This statement indicates that the judge was, in fact, ruling on the

question of whether to remove the juror, and strongly suggests that the

decision was prompted by the concerns of defense counsel. In light of these

below.

of discretion is more than a mere error of judgment; thus, a sentencing

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J-A19003-14

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will Commonwealth v. Walls, 926 A.2d 957, 961

(Pa. 2007). We also consider of the following:

An extraneous influence may compromise the impartiality and
integrity of the jury, raising the specter of prejudice. See
Carter by Carter v. U.S. Steel Corp., 529 Pa. 409, 604 A.2d
1010, 1015 16 (1992) (plurality). The relevant inquiry is

Id. at 1016; see also Commonwealth
v. Bradley, 501 Pa. 25, 459 A.2d 733, 739 (1983) (requiring
showing that contact between member of the jury and court

extraneous influence relates to a central issue in the case or
merely involves a collateral issue; (2) whether the extraneous
influence provided the jury with information they did not have
before them at trial; and (3) whether the extraneous influence
was emotional or in Carter, 604 A.2d at
1017 (footnote omitted). The burden is on the party claiming
prejudice. Id.

Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012).

Given the circumstances surrounding the contact made with Juror #7,

remain on the jury. Therefore, the trial court did not abuse its discretion in

permitting the same. We reach this conclusion in consideration of the three

Carter

involve a central issue in the case. The information conveyed to Juror #7

concerned only the observation that she knew one of the families involved in

the case. The information did not remotely involve the circumstances of the

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J-A19003-14

crimes for which Appellant was being tried and, therefore, it was a collateral

matter.

The second Carter factor is largely inapplicable in this case. Juror #7

indicated to the trial court that she did not know any of the families of the

parties, and she continued to assert the same after being questioned about

the call from her daughter. Thus, Juror #7 cannot be said to have been

provided with information apart from what she learned during the course of

the trial without questioning her credibility. The trial court found credible

her testimony that she did not know anyone involved in App

that it was not accurate.

Assessing the third Carter factor, we conclude there is no evidence

that the information conveyed was emotional or inflammatory in nature.

Juror #7 did not indicate that the information conveyed, nor the manner in

which it was conveyed, caused Juror #7 to be fearful in the least.

Furthermore, she did not indicate that her daughter considered the

information to be a veiled threat or otherwise cause her to be fearful.

Moreover, Juror #7 expressed her willingness to inform the trial court if,

during the course of the remaining proceedings, she recognized someone

that she knew.

Appellant cites two cases in support of his claim that there was a

reasonable likelihood of prejudice resulting from the contact made with Juror

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J-A19003-14

#7, Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012), and

Commonwealth v. Hetzel, 822 A.2d 747 (Pa. Super. 2003). In Sneed,

the appellant claimed that his counsel was ineffective for not seeking the

widow during a break in the trial. Our Supreme Court determined that the

appellant could not demonstrate that a reasonable likelihood of prejudice

stated that she did not

respond to the woman, did not know who she was, and did not inform

Sneed, 45 A.3d at 1114. Given these

circumstances, our Supreme Court held that:

While the contact was improper, [the a]ppellant has failed to
demonstrate that there was a reasonable likelihood that he

the case and were innocuous. Moreover, her comments were

hesitation that the speaker intended to influence a decision

Id. at 1115 (footnote omitted).

Appellant argues that the information conveyed in this case, in

contrast to what had occurred in Sneed be construed as threatening

disagree. There is nothing in the record suggesting that the information at

issue was conveyed in a threatening manner, and it is purely speculative to

suggest that a threat was implied. While not as innocuous as the comments

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J-A19003-14

made in Sneed, the information conveyed to Juror #7 was, nonetheless,

intended to influence a decisio Sneed, 45 A.3d at

1115. Certainly this is true with regard to the information directly conveyed

to the juror from her daughter.2 Sneed

In Hetzel, this Court considered whether the trial court erred when it

removed a juror under the following circumstances:

One evening after a day of hearing the Commonwealth's case,
Juror #2 received a call from his sister. She informed him that
her husband, Juror #2's brother-in-law, worked with

discuss the matter and the following morning he promptly told
the judge about the telephone call.

The trial judge, with counsel, interviewed Juror #2 and
permitted counsel to question him as well. Although Juror #2
stated that he could be fair and decide the case based on the
evidence, he also noted that his sister was upset when she called

how [defendant] might react toward his brother-in-law if the jury
found [defendant] guilty. Juror #2 tempered his concern with

the interview, the prosecutor made a motion to strike Juror #2
for cause. The trial court granted the motion.

Hetzel, 822 A.2d at 755-56.

____________________________________________

2

extraneous influence on Juror #7. The extraneous influence under
consideration is the content of the call from the daughter to Juror #7.

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In ruling that the trial court did not abuse its discretion in removing

the juror, we stated:

The trial judge believed that disqualification was appropriate
based on the juror's answers to questions and his demeanor.
The court noted the juror's concern over his brother-in-law's
position and the fact that the juror interpreted his sister as

standard of review, we find support for the trial court's concerns
and so determine there was no abuse of discretion.

Id. at 756.

Here, there was no indication regarding which family member(s), if

any, was supposedly known to Juror #7, nor what the nature of the

relationship was between them. In Hetzel, by contrast, the relationship was

Furthermore, Juror #7, unlike Juror #2 in Hetzel, did not express any

trepidation whatsoever regarding her continued service as a juror.

Therefore, Hetzel

that the trial court did not abuse its discretion in refusing to dismiss Juror

#7.

Next, Appellant contends that the Commonwealth presented

insufficient evidence to disprove his claim of self-defense. In reviewing this

matter, we adhere to the following standards:

A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention

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to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light
most favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

A claim of self-defense is governed by 18 Pa.C.S. § 505, which

provides, in pertinent part, as follows:

(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, except the actor is not obliged to retreat
from his dwelling or place of work, unless he was the
initial aggressor or is assailed in his place of work by
another person whose place of work the actor knows
it to be.

18 Pa.C.S. § 505. Our Supreme Court has summarized self-defense law in

Pennsylvania as follows:

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J-A19003-14

[A] claim of self-defense (or justification, to use the term
employed in the Crimes Code) requires evidence establishing
three eleme
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

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. Although the
defendant has no burden to prove self-

s upon the Commonwealth to prove
beyond a reasonable doubt that the defendant was not acting in
self- Commonwealth v. Black, 474 Pa. 47, 376 A.2d
627, 630 (1977). The Commonwealth sustains that burden of
ng: 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 [him]self
therefrom; or that the slayer violated a duty to retreat or avoid
Commonwealth v. Burns, 490 Pa. 352, 416 A.2d
506, 507 (1980).

Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (footnote

omitted).

Instantly, there is no dispute that Appellant properly raised the matter

of self-defense in the trial court. TCO, at 4. Consequently, the

Mouzon, supra.

rden was

straightforward; the Commonwealth argued that Appellant was the initial

aggressor. The trial court found that the Commonwealth had sustained their

burden with sufficient evidence:

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In simplistic form, [Appellant] claimed Devin Scott recognized
him from Scott's vantage point on the sidewalk and, he,
[Appellant], needed to escape. Another competing inference,
and one the jury was ultimately persuaded by, was [Appellant]
saw Scott without Scott being aware and [Appellant], juiced with
thoughts of retribution, saw this as the perfect opportunity. The
physical evidence contributes to the Commonwealth's position

A cluster of casings is just not consistent with running fueled by
fear. Unlike the trail of casings from Devin Scott's gun which
inferentially supports the idea that Devin Scott was running from

theory. A young girl said she saw someone get out of the car
and
11/16/10 - 11/19/10, at] 151, and in the direction of Devin
Scott. She crouched down on her knees, then heard gunfire.
[Id. at] 151, 152. Maurice Williams, the driver of the car,
confirmed as much. [Appellant] got out, paused, and then
"started shooting." [Id.
hands on his gun, arms extended, chest high. [Id. at] 189.
This positioning was confirmed by the closest person to
[Appellant] Maurice Williams. [Id. at] 205. Inferentially, the

first. [Appellant] said otherwise with an assist from Daria Baker,
who was babysitting that day. Ms. Baker was on the front porch
and said the first shots she heard were from a guy walking on
Id. at] 244, 268. This
aspect of the case who shot first vis-à-vis, who was the initial
aggressor bottomed out on a credibility determination. The
jury made the call and believed the totality of the

by a sufficient quantity and quality of evidence.

TCO, at 4-5.

We agree with the trial court that the Commonwealth presented

sufficient evidence to satisfy its burden of negation.

argument that he reasonably feared for his life due to his prior encounter

with Devin Scott would require us to afford his testimony greater weight

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evidence that con

reviewing a sufficiency claim[,] the court is required to view the evidence in

the light most favorable to the verdict winner giving the prosecution the

benefit of all reasonable inferences to be drawn

Widmer

-

defense,

contention that his actions were justified by his fear. Accordingly, we

Finally, Appellant contends that the trial court abused its discretion in

sentencing him to a term of 25-

that his sentence is excessive and that its imposition contravened

fundamental norms of sentencing because the trial court failed to consider

his rehabilitative needs as required by section 9721(b) of the Sentencing

Code.

Our standard of review in sentencing matters is as follows:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,

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exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517 18 (Pa. Super. 2007)

(citation omitted).

However, the right to pursue a challenge to the discretionary aspects

Commonwealth v. McAfee, 849 A.2d 270,

274 (Pa. Super. 2004).

Two requirements must be met before we will review this

brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence. S
substantial question that the sentence imposed is not
appropriate under the Sentencing Code. The determination of
whether a particular issue raises a substantial question is to be
evaluated on a case-by-case basis. In order to establish a

trial court inconsistent with the Sentencing Code or contrary to
the fundamental norms underlying the sentencing process.

Id. (internal citations omitted).

Appellant has complied with the first requirement by providing in his

brief a concise statement of matters relied upon for allowance of appeal

-43. Appellant also

meets the second requirement as his sentencing claim presents a substantial

question for our review. See Commonwealth v. Riggs, 63 A.3d 780, 786

(Pa. Super. 2012) (holding a substantial question was presented when

failed to consider relevant sentencing criteria, including the protection of the

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J-A19003-14

sentencing claim.

Appellant contends that due to his young age (18) at the time he

is an intelligent young man who could make something of his
life. Prior to this incident, [Appellant] had enrolled himself in
college and had been trying to better his life. However, he has
little or no chance to make a positive impact on the community
with a sentence of this length. [He] plans to use the time
incarcerated to better his life by involving himself in educational
and religious pursuits, with the goal of one day making a positive
impact on the community. He would hope to be released from
incarceration with time to bring change to the community. With
the length of his current sentence, he could remain incarcerated
until he is over seventy years old, which provides him no chance
at becoming a productive member of society.

Additionally, [Appellant] expressed significant remorse for
his actions during this incident and he sincerely apologized to the
family. He acknowledged his poor choices and he accepted
responsibility for his actions. [Appellant] requested the
opportunity to make a positive impact in order to honor the
victim and her family since he is truly remorseful for causing this
tragic situation.

The sentencing court did not adequately consider these
factors individual to [Appellant] and how this harsh sentence
addressed his rehabilitative needs and potential return to the
community. By failing to adequately consider all required
sentencing factors, such as [his] rehabilitative needs, the
sentencing court abused its discretion by crafting an
unreasonable sentence.

Id. at 46-47.

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J-A19003-14

The trial court notes that it imposed standard range sentences at

every count for which Appellant was convicted. The court also disagrees

needs in crafting the aggregate sentence. Despite Ap

involvement in the criminal justice system:

As identified in the Pre-Sentence Report, he was adjudicated
delinquent of delivering crack cocaine to another person in
August, 2005. At the time, he was 15 years old. A few weeks
before his 17th birthday, he was adjudicated delinquent of
carrying a firearm and possessing drugs with intent to deliver
them to another person. A mere 16 months later [Appellant]
committed this crime.

TCO, at 8.

The trial court also states that its justification for imposing the

sentence

was a combination of factors and [was] adequately set forth at
the sentencing hearing. The murder affected numerous people.
Many of those individuals gave moving and inspirational

groundwork for the public to be protected from [him]. He had
two previous efforts at modifying his behavior consistent with

was a self[-]starter and obtained his GED which led to his
enrollment at a loc
argument carried the day. He attended one semester. He failed
every class that he took. These facts allowed the court not to be
influenced at all about the rehabilitative needs of [Appellant]. In
sum, the sentence was just and reasonable.

Id. at 8-9.

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J-A19003-14

We agree with the trial court and discern no abuse of discretion. It is

his behavior

following two prior interactions with the justice system. Instead, the trial

court gave greater weight to other section 9721(b) factors such as the

protection of the public and the impact of the crime on the victim and the

community. We will

See Commonwealth v. Marts, 889 A.2d 608, 615 (Pa. Super. 2005)

conclusion regarding his rehabilitative potential does not render the sentence

matters, we must accord the sentencing court great weight as it is in the

best position to view the defendant's character, displays of remorse,

defiance or indiff

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999).

him to relief.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/1/2014

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