J-S14026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KHARYEE MCCULLOUGH,
Appellant No. 1707 EDA 2014
Appeal from the Judgment of Sentence of April 11, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009669-2010
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 06, 2015
Appellant, Kharyee McCullough, appeals from the judgment of
sentence entered on April 11, 2014, following his bench trial convictions for
third-degree murder, conspiracy to commit homicide, possession of an
instrument of crime (PIC), and two firearm violations.1 Upon review, we
affirm.
The trial court set forth the facts of this case as follows:
On June 1, 2010, thirty-four (34) year-old Raymond
Berry (decedent) was shot by [Appellant] and an unknown
accomplice on the 3000 block of West Dakota Street in
Philadelphia. The decedent died from multiple gunshot
wounds. Video surveillance obtained by police from
cameras at a nearby business captured the crime. In a
formal statement, [Appellant] identified himself as one of
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1
18 Pa.C.S.A. §§ 2502(c), 903, 907, 6106, and 6108, respectively.
J-S14026-15
the shooters in the video. He declined to provide the
identity of his accomplice.
In the video, the decedent is observed running.
[Appellant] and his accomplice chase the decedent on
bicycles in the same direction. The two men separate.
Gunshot flashes are observed. Consistent with trace blood
evidence at the scene, the unarmed decedent falls by a
nearby vehicle, rises to his feet, and limps as he continues
to run for his life. [Appellant] continues to shoot at the
decedent before turning his bike around. Then, off camera,
[Appellant’s] accomplice approaches from the other end of
the street to deliver the fatal shots. [Appellant] admitted to
hearing gunshots as he rode away from the crime scene.
During collection of ballistic and trace blood evidence,
six (6) .380 caliber semi-automatic fired cartridge casings []
were recovered at the scene of the shooting, all stamped
with the same manufacturer[’s name]. [Appellant] stated
he was shooting a .380 [caliber firearm], but that he only
had four shots in his gun. The medical examiner, Dr. Aaron
Rosen, observed four gunshot wounds to the body, two to
the head and neck area, one to the back and one to the
right arm. The wound to the right forearm was the first
wound that [the decedent] received. Based on the evidence
presented at trial, the decedent would not have died from
the shot to the right arm that was fired by [Appellant].
Officer Brian Stark testified that the gunpowder was visible
around each of the bullet holes.
Gamal Emira, criminalist for the Philadelphia Police
Department, testified that the discoloration around the hole
in the back of decedent’s t-shirt and the presence of high
particles of gunshot residue indicate the gun was fired in
close proximity [to] or touching the clothing at the time it
was fired. Detective Edward Nelson and Dr. Rosen testified
that the gunshot wound to the [decedent’s] forehead was
consistent with a contact wound, evident from the tearing of
decedent’s skin. [Appellant’s] accomplice delivered the
coup de grâce[, a] contact gunshot wound to his forehead
[and a] contact gunshot wound to his back.
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Trial Court Opinion, 9/23/2014, at 2-3 (record citations, quotations, and
original brackets omitted).
The matter proceeded as follows:
On June 5, 2013, [Appellant] was found guilty [of the
aforementioned crimes, following a bench trial]. On April
11, 2014, [Appellant] was sentenced to twenty (20) to forty
(40) years for the third-degree murder conviction; five (5)
to ten (10) years for the criminal conspiracy to commit
homicide conviction, to run consecutively; no further
penalty [for the two firearm convictions]; and five (5) years
[of] probation for the PIC conviction, to run consecutively.
[Appellant] received an aggregate sentence of twenty-five
(25) to fifty (50) years [of] incarceration plus five (5) years
[of] reporting probation. On May 28, 2014, [Appellant filed]
a notice of appeal[]. On August 25, 2014, [Appellant’s]
counsel filed a statement of [errors] complained of on
[appeal], pursuant to an order of the court directing counsel
to file a [Pa.R.A.P.(b)] statement. [The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on September 23,
2014.]
Id. (superfluous capitalization omitted).
On appeal, Appellant presents the following issues for our review:
I. Is [Appellant] entitled to an arrest of judgment on the
charge of [t]hird[-d]egree murder and [c]riminal
[c]onspiracy where the evidence is insufficient to
sustain the verdict?
II. Is [Appellant] entitled to a new trial on the charges of
[third-degree murder] and [c]riminal [c]onspiracy
where the verdict is not supported by the greater
weight of the evidence?
Appellant’s Brief at 3.
In his first issue presented, Appellant argues there was insufficient
evidence to support his convictions for third-degree murder and conspiracy.
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He claims “[t]he Commonwealth has not sustained its burden because
[Appellant] quite obviously did not shoot and kill the victim and [Appellant]
was not demonstrated, beyond a reasonable doubt, to be a conspirator of
the shooter/killer.” Id. at 7. Appellant assails the trial court’s legal
interpretation arguing, “[t]he [trial] [c]ourt seems to think that because the
two men rode down the street in close proximity to one another, that they
had to be conspirators.” Id. at 8. In sum, he contends:
Here, [Appellant] and the other young man rode in the
same direction as the victim and apparently both fired
shots. However, there is nothing in the record which would
indicate that there was an agreement to do so. They simply
did the same thing at the same time. They might even
have had similar reasons. However, the case law does not
hold that that makes a conspiracy.
Even if there was a conspiracy, there was no conspiracy to
kill. [Appellant] had plenty of opportunity to evince a desire
to kill. He did not follow up with any of those opportunities.
Even the [t]rial [j]udge noted that. However, it was the
other person involved that did have an intent to kill and
demonstrated that intent to kill by shooting the victim in the
head at very close range. Thus, and where [Appellant] may
have had an intent to harm or scare but where the other
individual had the intent to kill, there simply was no
agreement[] with regard to their intent and hence, without
that agreement there was no criminal conspiracy. In that
[Appellant] did not fire a kill shot, he could only be guilty of
[m]urder in the [t]hird [d]egree if he was a criminal
conspirator here and that simply was not the case.
Accordingly, an arrest of judgment must be awarded to
[Appellant] on the charge of [m]urder in the [t]hird
[d]egree and [c]riminal [c]onspiracy.
Id. at 9-10 (footnote omitted).
Our standard of review is well-settled:
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by 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 evidence produced, is free to believe
all, part or none of the evidence. Further, in viewing the
evidence in the light most favorable to the Commonwealth
as the verdict winner, the court must give the prosecution
the benefit of all reasonable inferences to be drawn from
the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014).
Regarding third-degree murder, our Supreme Court has determined:
[T]hird degree murder is not a homicide that the
Commonwealth must prove was committed with malice and
without a specific intent to kill. Instead, it is a homicide
that the Commonwealth must prove was committed with
malice, but one with respect to which the Commonwealth
need not prove, nor even address, the presence or absence
of a specific intent to kill. Indeed, to convict a defendant for
third degree murder, the [factfinder] need not consider
whether the defendant had a specific intent to kill, nor make
any finding with respect thereto.
Commonwealth v. Meadows, 787 A.2d 312, 317 (Pa. 2001) (citation
omitted). “Malice may be found to exist in an unintentional homicide where
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a defendant consciously disregarded an unjustified and extremely high risk
that his actions might cause death or serious bodily harm.”
Commonwealth v. Fisher, 80 A.3d 1186, 1197 (Pa. 2013) (citation
omitted).
Regarding criminal conspiracy, our Supreme Court has concluded:
To convict a defendant of conspiracy, the trier of fact must
find that: (1) the defendant intended to commit or aid in
the commission of the criminal act; (2) the defendant
entered into an agreement with another (a co-conspirator)
to engage in the crime; and (3) the defendant or one or
more of the other co-conspirators committed an overt act in
furtherance of the agreed upon crime. The essence of a
criminal conspiracy, which is what distinguishes this crime
from accomplice liability, is the agreement made between
the co-conspirators.
Mere association with the perpetrators, mere presence at
the scene, or mere knowledge of the crime is insufficient to
establish that a defendant was part of a conspiratorial
agreement to commit the crime. There needs to be some
additional proof that the defendant intended to commit the
crime along with his co-conspirator. Direct evidence of the
defendant's criminal intent or the conspiratorial agreement,
however, is rarely available. Consequently, the defendant's
intent as well as the agreement is almost always proven
through circumstantial evidence, such as by the relations,
conduct or circumstances of the parties or overt acts on the
part of the co-conspirators. Once the trier of fact finds that
there was an agreement and the defendant intentionally
entered into the agreement, that defendant may be liable
for the overt acts committed in furtherance of the
conspiracy regardless of which co-conspirator committed
the act.
Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (citations
and quotations omitted).
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Upon review of the record, we conclude the Commonwealth set forth
sufficient evidence to support Appellant’s challenged convictions. The
Commonwealth presented video surveillance from an auto repair store near
the scene of the crime. N.T., 6/4/2013, at 22. The trial court watched a
compilation video of three camera angles that captured portions of the
crime. Id. at 79-81. The video depicts the victim running down the street
with two men on bicycles following him in the same direction. Id. at 81-82.
The victim falls and gets back up and continues running. Id. at 84.
Gunshot flashes are seen on the video. Id. at 84. The men on bicycles flee
the scene in opposite directions. Id. Following the crime, Appellant
identified himself as one of the men on a bicycle as seen in the video. N.T.,
6/5/2013, at 12, 30. More specifically, Appellant “identified himself as the
male firing the gun that you see with the muzzle flash.” N.T., 6/4/2013, at
170-171. Appellant also gave a statement to police wherein he admitted to
shooting at the victim, at two different points during the incident, with a
.380 caliber handgun that was loaded with four bullets. Id. at 18-21. Police
recovered six .380 caliber semi-automatic fired cartridge casings from the
scene. N.T., 6/4/2013, at 6. Upon autopsy, bullets were removed from the
victim’s arm, mouth, back, and jaw. N.T., 6/5/2013, at 104-113. The
ballistics expert opined that two separate guns were used in the shooting.
Id. at 115.
Here, in viewing the evidence in the light most favorable to the
Commonwealth as our standard requires, the evidence was sufficient to
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show, circumstantially, that Appellant and another man acted in concert with
each other as co-conspirators. Both men were on bicycles, riding near each
other, and chasing the victim who was on foot. The ballistics evidence
showed that both men fired shots. Appellant admitted he was one of the
shooters. We reject Appellant’s suggestion that he and his conspirator
happened upon the same victim and independently decided to shoot at him
at the same time. Accordingly, it matters not which person shot the fatal
blow, because Appellant is liable for the overt acts committed in furtherance
of the conspiracy regardless of which co-conspirator committed the act. See
Murphy. To support a conviction for third-degree murder, the
Commonwealth was required prove the murder was committed with malice,
but did not need not prove, nor even address, the presence or absence of a
specific intent to kill. See Meadows. Instead, the Commonwealth was
required to prove a conscious disregard of an unjustified and extremely high
risk that actions might cause death or serious bodily harm. See Fisher.
Here, the Commonwealth produced evidence that the victim was shot
multiple times while fleeing and the shooting continued even after the victim
fell to the ground. Such actions clearly showed a conscious disregard of the
high risk that death or serious bodily injury would occur. Thus, we discern
no abuse of discretion in finding Appellant guilty of third-degree murder
based upon co-conspirator liability. Appellant’s first issue fails.
Next, Appellant argues that his convictions were against the weight of
the evidence. Appellant’s Brief at 11-12. In advancing this argument,
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Appellant again asserts that the trial court erred by determining that there
was a conspiracy. Id.
Our standard of review is as follows:
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the
trial court's discretion; it does not answer for itself whether
the verdict was against the weight of the evidence. It is
well settled that the factfinder is free to believe all, part, or
none of the evidence and to determine the credibility of the
witnesses, and a new trial based on a weight of the
evidence claim is only warranted where the factfinder’s
verdict is so contrary to the evidence that it shocks one's
sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial
judge's discretion was properly exercised, and relief will
only be granted where the facts and inferences of record
disclose a palpable abuse of discretion.
Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation
omitted).
Based upon the facts as set forth above, the verdict does not shock
one’s sense of justice. Appellant and his co-conspirator each fired multiple
shots at the victim which ultimately resulted in his death. Hence, we discern
no palpable abuse of discretion by the trial court in denying Appellant relief
on his weight of the evidence claim. Accordingly, Appellant’s second claim is
without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2015
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Com. v. McCullough, K.
Combined Opinion