J-S47026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARNELL RAY LEWIS, JR.,
Appellant No. 2968 EDA 2013
Appeal from the Judgment of Sentence of September 9, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005370-2012
BEFORE: MUNDY, OLSON AND WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 13, 2014
Appellant, Darnell Ray Lewis, Jr., appeals from the judgment of
sentence entered on September 9, 2013, as made final by the denial of his
post-sentence motion on September 17, 2013. We affirm.
The trial court accurately summarized the factual background of this
case as follows:
On the morning of October 18, 2011, Barbara Hausknect
travelled by foot to the Taco Bell located on Route 145,
Whitehall, Lehigh County, Pennsylvania to get her paycheck.
Route 145 to the Walmart Superstore. The two shopped at
Walmart for approximately 30 to 45 minutes. While there,
Hausknect selected a few items and proceeded to the checkout
lane. There, she signed over her paycheck to pay for her
selected items and obtained the remainder of the money owed to
her. Hausknect put the additional money, totaling approximately
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$500[.00], into her black wristlet wallet. Hausknect and
Carasquilla exited through the doors and walked to their left.
While speaking to her friend, Hausknect noticed [Appellant]
pacing nearby and [Ferante Trout
approximately [five] feet away. The individuals made her
nervous and they continued to walk in front of Hausknect and
Carasquilla. [Appellant], wearing a red long-sleeved shirt, gray
sweatshirt, jeans[,] and a black hat, approached Hausknect and
asked her for a cigarette. Hausknect replied that she did not
have one. [Appellant] then asked for a lighter and Hausknect
handed Carasquilla matches to give to [Appellant]. [Appellant]
and Carasquilla were now behind Hausknect. [Appellant] then
approached Hausknect from behind and asked for her money.
After Hausknect refused to give [Appellant] the wallet,
[Appellant] pulled out a gun and pointed it at her. [Appellant]
grabbed at Hausknect and tried to take her wallet from her left
hand. Hausknect struggled with [Appellant]. As Hausknect
attempted to run away from [Appellant], she was shot directly in
her back. After she fell to the ground, [Troutman] held
Hausknect down and [Appellant] hit her in the mouth with the
gun, cutting her below her nose and damaging her teeth. The
individuals got her wallet and got into a silver or blue
vehicle. . . .
Immediately, peopl
aid. They applied pressure to her wound and attempted to calm
her down. At approximately 12:30 p.m., members of the
Whitehall Township Police Department arrived on scene.
Patrolman Derrick Williams observed several people flagging him
down and found [] Hausknect lying on the ground. Patrolman
Williams spoke to the victim and attempted to get a description
of the perpetrator(s) and the vehicle involved. Carasquilla, who
had initially run when [Appellant] pulled out the gun, returned to
involved ran to a blue vehicle and fled the area. Patrolman
blood in her mouth area. He directed her to stop attempting to
move and determined that she was traumatized and in shock.
[Hausknect] ultimately left by ambulance and was taken to
Lehigh Valley Hospital for immediate surgery. During the
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taken into evidence.
***
-defendant,] received a phone call from the
Appellant and Troutman, asking her to give them a ride. She
and her then [two] year old son picked the two men up in
Allentown and proceeded to the Walmart in Whitehall. She was
driving a blue Chevrolet Cobalt bearing a license plate from the
State of North Carolina. The Appellant was seated in the front
passenger seat and Troutman and the minor child were in the
back seat. McKenzie parked her vehicle in the parking lot while
Troutman and the Appellant went inside the Walmart. The
Appellant was wearing a red shirt and Troutman was wearing a
gray shirt.
Shortly thereafter, the two men emerged from the Walmart,
without any bags or packages.
placed it on his lap, and instructed McKenzie to drive. One of
the men instructed her to stop the vehicle when they noticed
Hausknect walking in the parking lot. The Appellant, still
Troutman a small distance behind the Appellant. McKenzie
watched their interaction with Hausknect from the side window
of her vehicle. She saw the Appellant point the gun at
Hausknect and saw her fall, although she did not actually hear
any shots.
Once Hausknect fell to the ground, McKenzie saw Troutman take
McKenzie asked the Appellant if he shot Hausknect, the
Appe
give him her wallet. McKenzie, Troutman, and the Appellant left
the area. While driving back to Allentown, the Appellant
removed the money from the [wallet] and threw the wallet out
[of] the window.
***
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Dr. [Michael] Badellino testified that the area where [Hausknect]
was shot was a critical part of the body in that it receives
secretions of the pancreas and processes bile from the liver.
Trial Court Opinion, 11/5/13, at 3-7 (honorifics omitted).
The procedural history of this case is as follows. On January 5, 2012,1
Appellant was charged via criminal complaint with attempted homicide, 2 two
counts of robbery,3 aggravated assault,4 theft by unlawful taking,5 receiving
stolen property,6 and conspiracy to commit robbery.7 A criminal information
charging those same offenses was filed on December 20, 2012. A non-jury
trial commenced on July 29, 2013. On July 31, 2013, the trial court found
Appellant guilty on all charges. On September 9, 2013, the trial court
1
The criminal complaint contains an error, as it lists the date as January 5,
2011.
2
18 Pa.C.S.A. §§ 901, 2501.
3
18 Pa.C.S.A. §§ 3701(a)(1)(i), 3701(a)(1)(ii).
4
18 Pa.C.S.A. § 2702.
5
18 Pa.C.S.A. § 3921.
6
18 Pa.C.S.A. § 3925.
7
18 Pa.C.S.A. §§ 903, 3701.
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On September 16, 2013, Appellant filed a post-sentence motion which was
denied on September 17, 2013. This timely appeal followed. 8
Appellant presents two issues for our review:
1. Was the evidence insufficient to support the verdict of
attempted murder[?]
2. Was the verdict against the weight of the evidence[?]
Appellant first contends that there was insufficient evidence to convict
verdict is a question of law; thus, our standard of review is de novo and our
Commonwealth v. Patterson, 91 A.3d 55, 66
(Pa. 2014) (citation omitted). In reviewing a sufficiency of the evidence
in the light most favorable to the [Commonwealth], there is sufficient
evidence to enable the fact-finder to find every element of the crime beyond
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.
preclude every possibility of innocence. . . . [T]he fact-finder is free to
8
On October 8, 2013, the trial court ordered Appellant to file a concise
See
Pa.R.A.P. 1925(b). On October 15, 2013, Appellant filed his concise
statement. On November 5, 2013, the trial court issued its Rule 1925(a)
statement.
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Commonwealth v. Trinidad,
90 A.3d 721, 728 (Pa. Super. 2014) (citation omitted).
Commonwealth v.
Johnson, 874 A.2d 66, 71 (Pa. Super. 2005), appeal denied, 899 A.2d 1122
(Pa. 2006) (citation omitted). In this case, there is no dispute that a
substantial step was taken. Appellant fired his gun, which is a substantial
step towards a killing. However, Appellant contends that the substantial
step was not towards an intentional killing Hausknect was only shot one time
which shows that he did not intend to kill her.
This argument is without merit. As Appellant acknowledges, our
of the body may be sufficient to establish the requisite intent for first-degree
Commonwealth v. Morales, 91 A.3d 80, 88 (Pa. 2014)
(citations omitted); see Commonwealth v. Burno, 2014 WL 2722758, *10
-settled that specific intent
to kill may be established through circumstantial evidence such as the use of
Commonwealth v.
Sanchez -finder]
eadly
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testified that the area where Hausknect was shot was a vital part of the
body.
Appellant contends that although the trial court may infer a specific
intent to kill from a shot to a vital part of the body, it was required to
consider all of the evidence in determining whether specific intent to kill was
present. However, we must view the evidence in the light most favorable to
the Commonwealth. The mere presence of one fact from which the trial
conclusion that Appellant possessed the requisite intent to kill.
Appellant also contends that the evidence was insufficient to convict
him of attempted murder because McKenzie testified that Appellant told her
he only shot Hausknect because she would not give him the wallet. This
argument is flawed for two reasons. First, it views the evidence in the light
most favorable to Appellant instead of in the light most favorable to the
Commonwealth. Second, Appellant having shot Hausknect because she
would not give him her wallet is not mutually exclusive from Appellant
intending to murder Hausknect. The trial court could have determined that
Appellant chose to murder Hausknect because she would not give him the
wallet. Accordingly, we conclude that the evidence was sufficient to convict
Appellant of attempted murder.
Appellant next contends his attempted murder conviction was against
the weight of the
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trial, so the trial judge was the fact-finder. The same evidence in the record
convinced the trial judge that the verdict was not against the weight of the
Commonwealth v. Davidson, 860 A.2d 575, 582 (Pa. Super.
2004), affirmed
findings with regard to the credibility and weight of the evidence [after a
be
was manifestly erroneous, arbitrary and capricious[,] or flagrantly contrary
J.J. DeLuca Co., Inc. v. Toll Naval Assocs., 56 A.3d
402, 410 (Pa. Super. 2012) (internal quotation marks and citation omitted).
We have reviewed all of the evidence presented at trial and conclude
Id. Other than the
arguments Appellant raised as to the sufficiency of the evidence, he does not
present any argument for why the verdict was against the weight of the
merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
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