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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTHONY HARVEY, :
:
Appellant : No. 1192 WDA 2013
Appeal from the Judgment of Sentence July 3, 2013,
Court of Common Pleas, Cambria County,
Criminal Division at No. CP-11-CR-0000167-2012
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 19, 2014
Anthony Harvey (“Harvey”) appeals from the July 3, 2013 judgment of
sentence entered by the Cambria County Court of Common Pleas for his
involvement in the shooting death of J-Quan Lewis (“Lewis” or “the victim”).
We affirm.
The trial court summarized the facts adduced at the joint trial held for
Harvey and his co-defendant, Marquis Neal (“Neal”), as follows:
[A]t approximately 11 p.m. on September 30,
2011[,] Harvey and Lewis were drinking at Edder’s
Den bar in the Oakhurst section of Johnstown.
Harvey and Lewis got into an argument at the bar
and were told to ‘take it outside.’ The pair, along
with other patrons, left the bar and a fight ensued
outside the building with Lewis getting the better of
Harvey. Neal arrived during the fight and along with
others[,] broke up the fight. Neal assisted the beaten
Harvey into a minivan and the two left the bar.
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The following morning Neal awoke at approximately
10 a.m. took two Percocet pills and one Xanax pill,
none of which were prescribed to him, and drank
approximately one-half of a 750ml bottle of vodka.
He then left the apartment he was staying at in the
Oakhurst Homes and went in search of marijuana.
He made several stops at various apartments in the
Oakhurst Homes but was unable to secure any
drugs.
At approximately 2 p.m.[,] while Neal was walking
through the Oakhurst Homes he saw Lewis and
Hakeem Horton (Horton) walking towards him. As
they approached[,] Neal asked Lewis if they were
[alright] from the night before and if there were any
hard feelings. Lewis either said ‘no we aren’t’ and
attempted to shoulder past Neal or simply attempted
to shoulder past him[,] at which point Neal drew a
handgun from his windbreaker and fired at Lewis
striking him in the upper right arm with the round
then entering and eventually exiting Lewis’ chest.
Lewis turned to run and Neal pursued him firing
several more shots, one of which struck Lewis in the
back, passed through his heart, and exited through
his chest. At this point Lewis fell and Neal walked up
to his prone body and rolled him over. Lewis said
‘please no’ at which time Neal fired again with the
third round entering Lewis’ head. Neal then knelt
beside Lewis and searched his pockets. Neal then
fled into the street where he got into a parked
minivan driven by Harvey and the two fled the
scene.
The minivan was eventually recovered in Pittsburgh,
Pennsylvania several days later. Harvey was
apprehended in Chester, Pennsylvania on November
24, 2011, and eventually returned to Johnstown
where he was formally charged as an accomplice to
Lewis’ murder. Neal was apprehended on March 6,
2012, in Gloucester County, New Jersey when during
a routine stop he provided false information to police
there. While being transported to the Gloucester
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County police department[,] Neal was informed he
would be fingerprinted and those prints used to
identify him[,] at which point he informed the
officers he was wanted by the United States Marshals
for murder. Neal was eventually extradited to
Pennsylvania and formally charged in connection
with Lewis’ murder.
During the trial[,] the Commonwealth presented
telephone records of cell phones that were identified
as being used by Neal and Harvey. These records
revealed 73 text messages or phone calls between
the two on September 30, 2011[,] and 23 text
messages or phone calls between them during the
early morning and early afternoon of October 1,
2011. There were five contacts between noon and 1
p.m. that day and the final contact between the
phones was 28 minutes before the shooting. Based
on these contacts the Commonwealth contended that
Neal and Harvey had conspired to kill Lewis. Neal
argued that he did not intend to kill Lewis[,] but
when Lewis shouldered past him he panicked and
thought Lewis meant to attack him resulting in Neal
defending himself with the [handgun]. Neal argued
that the combination of alcohol and drugs rendered
him incapable of forming the specific intent to
commit murder and explained his state of mind and
mistaken belief that Lewis intended to attack him.
Trial Court Opinion, 10/4/13, at 3-5.
After a six-day trial, the jury returned a verdict finding Neal guilty of
third-degree murder, flight to avoid apprehension, and two counts of
aggravated assault. The jury convicted Harvey of voluntary manslaughter
and one count of aggravated assault as Neal’s accomplice, and flight to avoid
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apprehension and hindering apprehension as a principal actor.1 The trial
court sentenced Harvey on March 5, 2013 to an aggregate term of 9½ to 25
years of incarceration. On March 15, 2013, Harvey filed a post-sentence
motion challenging the trial court’s ruling allowing the Commonwealth to
amend the criminal information during trial; the sufficiency of the evidence
to convict him of voluntary manslaughter; the sufficiency of the evidence to
prove that he was Neal’s accomplice; the trial court’s ruling permitting
evidence of a prior bad act, i.e., the fight between Harvey and the victim the
night before the victim’s death; and the sufficiency of the evidence to
convict him of hindering apprehension and flight to avoid apprehension.
Following argument, the trial court denied the motion on July 3, 2013.
On July 22, 2013, Harvey filed a timely notice of appeal, followed by a
court-ordered concise statement of errors complained of on appeal. The trial
court issued a responsive opinion pursuant to Pa.R.A.P. 1925(a) on October
4, 2013.
On appeal, Harvey raises the following issues for our review:
I. Whether the court erred in denying Appellant
Harvey’s petition for a writ of habeas corpus
regarding [Harvey’s] alleged accomplice liability in
the case?
1
18 Pa.C.S.A. §§ 2503(a), 2702(a)(1), 306(b), 5126(a), 5105(a)(2). The
jury acquitted Harvey of first-degree murder (id. § 2502(a)), third-degree
murder (id. § 2502(c)), and aggravated assault with a deadly weapon (id. §
2702(a)(4)).
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II. Whether the court erred in allowing the
Commonwealth to present evidence under Pa.R.E.
404(b), i.e., evidence of the fight?
III. Whether the court erred in allowing the
Commonwealth’s motion to amend [the] information
at the end of trial?
IV. Whether the court erred in allowing the jury to
convict [Harvey] of voluntary manslaughter as an
accomplice when the principal, [] Neal, was not
convicted of voluntary manslaughter?
V. Whether the verdict of the jury was contrary to the
weight and sufficiency of the evidence presented by
the Commonwealth?
Harvey’s Brief at 6-7.
We begin with Harvey’s first issue assailing the trial court’s denial of
his writ of habeas corpus. Our review of the argument raised reveals that he
is actually challenging the sufficiency of the evidence to prove that he acted
as Neal’s accomplice.2 See id. at 11-15. As Harvey included a claim
challenging the sufficiency of the evidence in both his 1925(b) statement
2
A claim that the trial court erred by denying a writ of habeas corpus
because the evidence presented at the preliminary hearing was insufficient
to hold the charge(s) over for court is not reviewable once the defendant has
been adjudged guilty. Commonwealth v. Lee, 662 A.2d 645, 650 (1995);
see also Commonwealth v. Melvin, __ A.3d __, 2014 WL 4100200, *24
(Pa. Super. Aug. 21, 2014) (“Once a defendant has gone to trial and has
been found guilty of the crime or crimes charged, […] any defect in the
preliminary hearing is rendered immaterial.”). Therefore, even if Harvey
had presented an argument in support of his habeas corpus claim, it would
not be reviewable by this Court.
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and his statement of questions involved section of his appellate brief, we will
review this issue.3
“Whether sufficient evidence exists to support the verdict is a question
of law; our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013). We
review the evidence in the light most favorable to the verdict winner to
determine whether there is sufficient evidence to allow the jury to find every
element of a crime beyond a reasonable doubt. Commonwealth v. Cahill,
95 A.3d 298, 300 (Pa. Super. 2014).
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 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 finder of fact while passing upon the
credibility of witnesses and the weight of the
3
The trial court decided the question of whether it erred by denying his writ
of habeas corpus. See Trial Court Opinion, 10/4/13, at 9-11. Because of
the standard by which we review a sufficiency claim, this does not hamper
our review. Moreover, it is well-settled law that we may affirm a trial court’s
decision on any ground, “even where those grounds were not suggested to
or known by the trial court.” Commonwealth v. Gatlos, 76 A.3d 44, 62
n.14 (Pa. Super. 2013).
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evidence produced, is free to believe all, part or none
of the evidence.
Id. (citation omitted).
“A person is legally responsible for the conduct of another person
when […] he is an accomplice of such other person in the commission of the
offense.” 18 Pa.C.S.A. § 306(b)(3). The law defines an accomplice as
follows:
A person is an accomplice of another person in the
commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it; or
(2) his conduct is expressly declared by law to
establish his complicity.
Id. § 306(c).
Proving a defendant’s guilt as an accomplice requires the satisfaction
of a two-prong test: (1) there must be evidence to show that the defendant
“intended to facilitate or promote the underlying offense” and (2) there must
be evidence that the defendant “actively participated in the crime or crimes
by soliciting, aiding, or agreeing to aid the principal[.]” Commonwealth v.
Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005) (citations omitted).
“Both requirements may be established wholly by circumstantial evidence.
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Only the least degree of concert or collusion in the commission of the
offense is sufficient to sustain a finding of responsibility as an accomplice. No
agreement is required, only aid.” Id. (internal citations and quotation
omitted).
Viewed in the light most favorable to the Commonwealth as the verdict
winner, the record reflects the following. The night before the shooting,
Harvey and the victim engaged in a physical fight, which the victim won.
N.T., 1/9/13 (afternoon), at 78, 81-82. Harvey left with Neal in a maroon
van. Id. at 82-83. Harvey and Neal communicated 73 times by cellphone
through voice calls and text messages that night and on the day of the
murder.4 N.T., 1/11/13 (afternoon), at 100. The last such communication
took place only 28 minutes before Neal shot the victim. Id. at 102.
Immediately after shooting the victim, Neal ran to Harvey’s waiting car – the
maroon van – and the two sped off. N.T., 1/9/13 (afternoon), at 142-44;
4
Although the cellphone numbers in question were not registered in
Harvey’s or Neal’s name, the circumstantial evidence presented supports a
finding that these were their phone numbers. Witnesses who had used the
numbers to call and speak with Harvey and Neal, respectively, provided the
phone numbers to the police. N.T., 1/11/13 (afternoon), at 54, 90. Jeremy
Rogers, who was friends with Neal, Harvey and the victim, testified that he
knew Harvey’s phone to be registered to a person named Amanda Keiper,
which was the name of the person to which Harvey’s alleged number was in
fact registered. Id. at 54, 64. Police were unable to locate the person to
whom Neal’s phone was registered, “Johnny Stroub,” and Detective Julie
Wagner testified that the given address of the named subscriber was at the
Galleria Mall. Id. at 98. Furthermore, “Johnny Stroub” had an email
address of NoPressure@gmail.com, and Neal’s girlfriend had a tattoo that
said “no pressure” on her neck. Id. at 104; N.T. 1/9/13 (afternoon), at 14.
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N.T., 1/10/13, at 156, 201. The van belonged to Harvey’s girlfriend, Lisa
Carothers, who had let him use the van that day approximately an hour or
two before the shooting to go to the grocery store for her, but neither he nor
the van returned to her house that day. N.T., 1/10/13, at 68, 70, 227.
Harvey abandoned the van in Pittsburgh. Id. at 227; N.T., 1/11/13
(morning), at 32. Police ultimately located Harvey in Chester, Pennsylvania
almost two months after the shooting. N.T., 1/12/13, at 45.
The evidence, although circumstantial, adequately proves that Harvey
aided Neal with the intent of promoting the murder. See Kimbrough, 872
A.2d at 1251; see also Commonwealth v. Causey, 833 A.2d 165, 173
(Pa. Super. 2003) (evidence that the appellant was the getaway driver when
his brother shot the victim is sufficient to prove that the appellant was his
brother’s accomplice in the shooting). As such, no relief is due.
In his second issue on appeal, Harvey contends that the trial court
erred by permitting the Commonwealth to present evidence of the fight
between Harvey and the victim the night before the shooting because,
according to Harvey, it was prohibited by Pennsylvania Rule of Evidence
404(b). Harvey’s Brief at 15-16. Other than a passing reference to Rule
404(b), without including its text, Harvey cites to no law in support of this
contention. Overlooking his clear violation of Rule 2119(a) of the
Pennsylvania Rules of Appellate Procedure, we find this issue meritless.
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Rule 404(b) precludes the use of other crimes, wrongs, or acts to show
that the defendant acted in conformity when committing the instant crime.
Pa.R.E. 404(b)(1). Such evidence may be admissible, however, for other
purposes, including but not limited to “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident.”
Pa.R.E. 404(b)(2).
The trial court found that the fight was properly admitted as, inter alia,
proof of motive for the murder. Trial Court Opinion, 10/4/13, at 13. We
agree.5
To be admissible to show intent or motive, the
evidence must give sufficient ground to believe that
the crime currently being considered grew out of or
was in any way caused by the prior set of facts and
circumstances. There must be a logical connection
between the prior incident and the crime for which
the accused is being tried. Important factors to be
considered in making this determination include the
proximity in time between the incidents; the
similarity in the circumstances surrounding the
incidents; and whether evidence of the prior crime is
necessary to rebut the accused’s evidence or
contention of accident, mistake or lack of required
intent.
Commonwealth v. Camperson, 612 A.2d 482, 484 (Pa. Super. 1992)
(citations omitted).
5
“The admission of evidence is committed to the sound discretion of the
trial court, and our review is for an abuse of discretion.” Commonwealth
v. Valcarel, 94 A.3d 397, 398 (Pa. Super. 2014) (citation omitted).
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As stated above, the record reflects that Harvey and the victim fought
the night before the murder and that Harvey was on the losing end of that
fight. N.T., 1/9/13 (afternoon), at 78, 81-82. Harvey claimed that he was
completely uninvolved in the victim’s death, and just happened to be at
Oakhurst Homes when Neal shot the victim; Neal claimed that he shot the
victim out of fear for his own life – believing that the victim was reaching for
a gun. See N.T., 1/12/13, at 121, 123-24.
There is no question that the victim’s murder could be viewed as
having been precipitated by the victim beating up Harvey the night before –
a possible revenge scenario. The incidents were close in time (only 14 hours
apart) and the fight was necessary to prove Neal’s intent (and thus, Harvey’s
intent as his accomplice) in committing the killing. We therefore find no
abuse of discretion in the trial court’s determination that the evidence was
admissible as proof of motive.
Next, Harvey asserts that the trial court erred by permitting the
Commonwealth to amend the criminal information, changing the charges of
aggravated assault from listing Harvey as an actor to an accomplice, on the
last day of trial. Harvey’s Brief at 16-18. The trial court found that Harvey
was not prejudiced by the amendment and is therefore due no relief. Trial
Court Opinion, 10/4/13, at 15.
Pennsylvania Rule of Criminal Procedure 564 permits the trial court to
grant the Commonwealth’s motion to amend a criminal information “when
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there is a defect in form, the description of the offense(s), the description of
any person or any property, or the date charged, provided the information
as amended does not charge an additional or different offense.”
Pa.R.Crim.P. 564. If the trial court permits the Commonwealth to amend
the information, “the court may grant such postponement of trial or other
relief as is necessary in the interests of justice.” Id. “The purpose of Rule
564 is to ensure that a defendant is fully apprised of the charges, and to
avoid prejudice by prohibiting the last minute addition of alleged criminal
acts of which the defendant is uninformed.” Commonwealth v. Mentzer,
18 A.3d 1200, 1202 (Pa. Super. 2011) (quoting Commonwealth v.
Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006)). We review this issue
“with an eye toward its underlying purposes and with a commitment to do
justice rather than be bound by a literal or narrow reading of the procedural
rules.” Id. (citation omitted). Thus, we
look to whether the appellant was fully apprised of
the factual scenario which supports the charges
against him. Where the crimes specified in the
original information involved the same basic
elements and arose out of the same factual situation
as the crime added by the amendment, the appellant
is deemed to have been placed on notice regarding
his alleged criminal conduct and no prejudice to
defendant results.
Sinclair, 897 A.2d at 1222 (citation omitted).
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This Court has identified the following relevant factors to determine
whether a defendant suffered prejudice as a result of the trial court’s grant
of the Commonwealth’s motion to amend:
(1) whether the amendment changes the factual
scenario supporting the charges; (2) whether the
amendment adds new facts previously unknown to
the defendant; (3) whether the entire factual
scenario was developed during a preliminary
hearing; (4) whether the description of the charges
changed with the amendment; (5) whether a change
in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth’s request for amendment allowed for
ample notice and preparation.
Mentzer, 18 A.3d at 1203 (citation omitted).
The record reflects that the Commonwealth filed its original criminal
complaint on February 6, 2012, alleging, inter alia, that Harvey committed
one count of aggravated assault as Neal’s accomplice. Criminal Complaint,
2/6/12, at 3. On March 23, 2012, the Commonwealth charged Harvey by
criminal information with one count of aggravated assault as the principal
actor. Criminal Information, 3/23/12. The Commonwealth filed a motion to
amend the information on January 4, 2013, which the trial court granted,
resulting, in relevant part, in the addition of a second count of aggravated
assault, with Harvey again listed as the principal actor. See Criminal
Information, 1/7/13. It was not until the last day of trial, during the
testimony of the Commonwealth’s final witness, that the Commonwealth
sought to amend the information to list Harvey as an accomplice for the two
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aggravated assault charges. See N.T., 1/12/13, at 48-52. The trial court
granted the Commonwealth’s request, finding that Harvey was not
prejudiced by the amendment. Id. at 70.
We agree with the trial court that Harvey suffered no prejudice by the
amendment of the information. Harvey was on notice since the time the
Commonwealth filed the criminal complaint in the beginning of 2012 that it
was the Commonwealth’s theory that he acted as Neal’s accomplice in the
victim’s murder and aggravated assault. The Commonwealth charged
Harvey with criminal homicide as Neal’s accomplice, but because of some
error by the Commonwealth (or, as the trial court aptly stated, the
Commonwealth’s sloppiness), the Commonwealth erroneously listed Harvey
as the principal actor in the aggravated assault charges. The amendment
did not change the underlying facts – indeed, the facts as presented since
the inception of the case solely support a finding that Harvey acted as Neal’s
accomplice in committing the aggravated assaults.
The only factor that weighs in favor of Harvey – which is also the only
argument Harvey makes in his brief on appeal – relates to the timing of the
request to amend. Harvey asserts he was necessarily prejudiced because
the Commonwealth requested the amendment on the last day of trial.
Harvey’s Brief at 18. Although Harvey claims “there was simply no time for
postponement of trial or other relief in the interest of justice,” the record
does not reflect that Harvey asked for a continuance or postponement of
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trial when the trial court permitted the Commonwealth to amend the
information. Moreover, case law reveals that a late request to amend by the
Commonwealth is not per se prejudicial. See, e.g., Mentzer, 18 A.3d at
1203 (affirming trial court’s finding of no prejudice where Commonwealth
sought to amend information after trial but before sentencing).
Harvey was informed of the criminal acts he was alleged to have
committed and the factual scenario underlying those acts, and thus the late
amendment to the criminal information does not offend the purpose of Rule
564. See id. at 1202; Sinclair, 897 A.2d at 1222. We therefore find no
error in the trial court’s decision to grant the Commonwealth’s request to
amend Harvey’s criminal information.
As his fourth issue on appeal, Harvey argues that the trial court erred
by denying his post-sentence motion for a judgment of acquittal for
voluntary manslaughter. Harvey’s Brief at 18. At its base, the challenge is
to the sufficiency of the evidence to convict him of voluntary manslaughter.
Harvey’s Brief at 18-21. He presents two theories in support of his
argument: (1) the elements of the crime of voluntary manslaughter were
not established, and (2) Harvey was alleged to have acted as Neal’s
accomplice and Neal was convicted of third-degree murder, rendering it
“impossible” for Harvey to have committed voluntary manslaughter as the
getaway driver. Id. The trial court found the conviction was proper. Trial
Court Opinion, 10/4/13, at 17-18.
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We have already concluded that Harvey acted as Neal’s accomplice in
the victim’s murder. See supra, pp. 8-9. Thus, Harvey is criminally
responsible for the acts committed by Neal. See 18 Pa.C.S.A. § 306(a),
(b)(3). Our review of the record reveals that Harvey is correct that there
was insufficient evidence to convict him (or Neal) of voluntary
manslaughter.6 There was, however, sufficient evidence to convict him of
first-degree murder. “A criminal homicide constitutes murder of the first
degree when it is committed by an intentional killing.” 18 Pa.C.S.A.
6
“A person who kills an individual without lawful justification commits
voluntary manslaughter if at the time of the killing he is acting under a
sudden and intense passion resulting from serious provocation by: (1)
the individual killed; or (2) another whom the actor endeavors to kill, but he
negligently or accidentally causes the death of the individual killed.”
18 Pa.C.S.A. § 2503(a) (emphasis added).
Emotions encompassed by the term ‘passion’ include
anger, rage, sudden resentment or terror which
renders the mind incapable of reason. Whether the
provocation by the victim was sufficient to support a
heat of passion defense is determined by an
objective test: whether a reasonable man who was
confronted with the provoking events would become
impassioned to the extent that his mind was
incapable of cool reflection. Significantly, we have
clarified that both passion and provocation must be
established, and that if there be provocation without
passion, or passion without a sufficient cause of
provocation, or there be time to cool, and reason has
resumed its sway, the killing will be murder.
Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012) (internal citations
and quotations omitted), cert. denied, 134 S. Ct. 178 (U.S. 2013). Absent
here is sufficient evidence of “passion” or “provocation” without a cooling off
period since approximately 14 hours elapsed between the provocation and
the killing.
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§ 2502(a). “Specific intent to kill can be established through circumstantial
evidence, such as the use of a deadly weapon on a vital part of the victim’s
body.” Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008).
The evidence presented at trial, viewed in the light most favorable to
the Commonwealth, reveals that Neal shot the victim with a deadly weapon
multiple times. N.T., 1/10/13, at 105. Neal then stood over the victim and
shot him in the head as the victim pleaded for his life, killing him. Id. at
107. Therefore, all elements of first-degree murder are met.7
“Whether an accomplice possessed the same intent to kill as his co-
conspirator may be inferred from words, conduct, the attendant
circumstances including the actions taken after the killing and all reasonable
inferences that follow from them.” Commonwealth v. Rios, 721 A.2d
1049, 1053 (Pa. 1998). “[F]light and concealment can constitute
circumstantial evidence of consciousness of guilt.” Commonwealth v.
7
Neal presented evidence at trial that he consumed drugs and alcohol the
morning of the shooting, rendering him intoxicated to the point of losing his
faculties and sensibilities. See N.T., 1/12/13, at 101-03, 122-23. This
evidence of a diminished capacity permitted the jury to reduce Neal’s
conviction from first-degree murder to third-degree murder. See 18
Pa.C.S.A. 308 (“evidence of [voluntary] intoxication or drugged condition of
the defendant may be offered by the defendant whenever it is relevant to
reduce murder from a higher degree to a lower degree of murder”);
Commonwealth v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013) (“A defense of
diminished capacity negates the element of specific intent, and thus
mitigates first-degree murder to third-degree murder. […] [T]o prove
diminished capacity due to voluntary intoxication, a defendant must show
that he was overwhelmed to the point of losing his faculties and
sensibilities.”), cert. denied, 134 S. Ct. 2725 (U.S. 2014).
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Housman, 986 A.2d 822, 831 (Pa. 2009) (citation omitted). In the case at
bar, Neal ran to Harvey’s waiting car immediately after shooting the victim
and the two sped off. N.T., 1/9/13 (afternoon), at 142-44; N.T., 1/10/13, at
156, 201. Harvey abandoned the van in Pittsburgh and fled to Chester,
Pennsylvania, where police located him almost two months later. Id. at
227; N.T., 1/11/13 (morning), at 32; N.T., 1/12/13, at 45. Based upon
Harvey’s actions following the murder, we conclude that he could have
properly been convicted of first-degree murder.
The jury, however, chose to convict Harvey of voluntary manslaughter,
a verdict inconsistent with the evidence presented and the conviction of
Harvey’s accomplice, the principal actor. In relation to inconsistent verdicts,
our Supreme Court has stated:
The question before us implicates the general issue
of inconsistent verdicts, which, under longstanding
federal and state law, are allowed to stand so long as
the evidence is sufficient to support the conviction.
* * *
[A]lthough an inconsistent verdict constitutes jury
‘error,’ it is not at all clear whether the error was
made at the expense of the Government or the
defendant. Given this uncertainty, and the fact that
the Government is precluded [by double jeopardy
considerations] from challenging the acquittal, it is
hardly satisfactory to allow the defendant to receive
a new trial on the conviction as a matter of course.
* * *
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While recognizing that the jury’s verdict appears to
be inconsistent, we refuse to inquire into or to
speculate upon the nature of the jury’s deliberations
or the rationale behind the jury’s decision. Whether
the jury’s verdict was the result of mistake,
compromise, lenity, or any other factor is not a
question for this Court to review. We reaffirm that an
acquittal cannot be interpreted as a specific finding
in relation to some of the evidence, and that even
where two verdicts are logically inconsistent, such
inconsistency alone cannot be grounds for a new trial
or for reversal.
Commonwealth v. Miller, 35 A.3d 1206, 1208, 1209, 1213 (Pa. 2012)
(internal citations and quotations omitted).
The fact that Harvey’s conviction differs from that of Neal is also not
problematic. In fact, our legislature has specifically stated that an
accomplice may be convicted in the absence of a conviction or even the
prosecution of the principal actor. 18 Pa.C.S.A. § 306(g).
As the evidence presented supports a finding of Harvey’s guilt as an
accomplice in the victim’s murder, we find no basis to grant him the
acquittal he requests.
As his final issue on appeal, Harvey raises a general challenge to the
weight and sufficiency of the evidence to support his convictions. Beginning
with his weight claim, we note that Harvey did not raise this either at
sentencing or in a post-sentence motion. It is therefore waived.
Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478, 490
(Pa. Super. 2014).
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His generalized challenge to the sufficiency of the evidence is likewise
waived. In his 1925(b) statement, Harvey frames his sufficiency claim as,
“Whether the verdict of the jury was contrary to the weight and sufficiency
of the evidence presented by the Commonwealth.” 1925(b) Statement,
8/13/13, at ¶ 5. This is insufficient to preserve a challenge to the sufficiency
of the evidence for appeal. As this Court has previously held:
In order to preserve a challenge to the sufficiency of
the evidence on appeal, an appellant’s Rule 1925(b)
statement must state with specificity the element or
elements upon which the appellant alleges that the
evidence was insufficient. Such specificity is of
particular importance in cases where, as here, the
appellant was convicted of multiple crimes each of
which contains numerous elements that the
Commonwealth must prove beyond a reasonable
doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal
citations omitted). Failure to properly preserve a sufficiency claim results in
its waiver on appeal. Id.
Regardless of waiver of his sufficiency claim, the only arguments he
raised in his brief on appeal challenge the sufficiency of the evidence to
convict him of voluntary manslaughter and aggravated assault. Harvey’s
Brief at 21-25. As we have already determined that the evidence was
sufficient to convict him of aggravated assault as an accomplice and
voluntary manslaughter by rejecting his judgment of acquittal argument, no
relief is due.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2014
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