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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ADRIAN MCCALL
Appellant No. 2277 EDA 2014
Appeal from the Judgment of Sentence June 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006747-2012
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 10, 2015
In this direct appeal, Adrian McCall challenges the weight of the
evidence underlying his conviction for third degree murder1 and the
sufficiency of the evidence underlying his conviction for possession of an
instrument of crime (“PIC”).2 Finding no merit in these arguments, we
affirm.
We begin by summarizing the relevant procedural history. A jury
found McCall guilty of third degree murder and PIC. The trial court severed
the charge of possession of firearms by prohibited person (“possession by
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1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 907.
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prohibited persons”).3 Following the jury verdict, the court, sitting non-jury,
found McCall guilty of possession by prohibited persons. McCall did not
appeal his conviction for this offense. On June 16, 2014, the trial court
sentenced McCall to consecutive terms of imprisonment of 20-40 years for
third degree murder, 4½-10 years for possession by prohibited persons, and
1-2 years for PIC, an aggregate sentence of 25½-52 years’ imprisonment.
On June 26, 2014, McCall filed a timely post-sentence motion, which
the trial court denied on July 8, 2014. On August 6, 2014, McCall filed a
timely notice of appeal. On August 11, 2014, the trial court ordered McCall
to submit a Pa.R.A.P. 1925(b) statement. On September 11, 2014, McCall
filed an untimely statement. On September 25, 2014, McCall filed a motion
to reinstate appeal rights nunc pro tunc. On September 26, 2014, the trial
court granted defendant’s motion and accepted his Pa.R.A.P. 1925(b)
statement as timely filed. On October 6, 2014, the trial court filed a
Pa.R.A.P. 1925(a) opinion.
The trial court accurately summarized the evidence adduced during
trial as follows:
On February 6, 2012, at approximately 10:20 a.m.,
Annie May Hollomon and her neighbor, Lonnie
Workman, were having a conversation outside on the
5500 block of Blakemore Street. During their
conversation, Desmond Jones drove down the block
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3
18 Pa.C.S. § 6105.
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with his girlfriend, Nekisha Dotson. Jones stopped his
vehicle in the middle of the street and waited for his
mother, Stephanie Jones, to come out of her home
at 5558 Blakemore Street. Workman approached the
vehicle and began speaking to Desmond Jones
through the car window. Workman explained to
Jones that although he had a problem with Jones[’]
cousin, defendant Adrian McCall, Workman did not
have a problem with Jones. N.T. 2/25/14 at 50-57;
N.T. 2/26/14 at 161, 182, 218.
While Workman and Jones were speaking, [McCall]
walked out of his home at 5558 Blakemore Street.
[McCall] and Workman began to argue. Workman
invited [McCall] to box telling [McCall] to ‘come on
down off of those steps’ and threatening to ‘whip
[his] ass.’ [McCall] pulled a silver gun from his
waistband and showed it to Workman, who said ‘I
ain’t scared of no gun.’ At the time, [McCall] was
standing on the top step of his porch about seven to
eight feet away from Workman. Workman turned his
head to the side to spit when [McCall] fired at least
four shots at Workman, striking him once in the
abdomen. [McCall] then ran inside his house.
Workman fell on the sidewalk where he was
standing. Holloman called 911 after which the police
arrived and transported Workman to Albert Einstein
Medical Center. N.T. 2/25/14 at 57-73, 83, 117-119;
N.T. 2/26/14 at 12, 93-94, 189-198, 229, 247.
On February 6, 2012, at 11:18 a.m., Workman was
pronounced dead. According to Dr. Marlon Osbourne,
the Assistant Medical Examiner, Workman suffered a
gunshot wound to the left side of his mid to lower
back which hit the small intestines, lacerated the left
common iliac artery, and lodged in the pelvic cavity.
Workman also suffered abrasions and lacerations to
his chest, thighs, and legs caused by fragments from
a projectile. N.T. 2/26/14 at 7, 12-19, 24-25.
There were five witnesses present on the 5500 block
of Blakemore Street at the time of the shooting, all
of whom provided formal statements to Philadelphia
Police Officers within days of the incident. Hollomon,
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Dotson, Davis and Desmond Jones stated that they
observed the shooting and identified [McCall] as the
shooter. Stephanie Jones said she heard a gunshot
but did not witness the shooting. At trial, Davis,
Dotson and Desmond Jones contradicted their
statements to police and testified that they did not
witness the shooting. N.T. 2/25/14 at 75-83; N.T.
2/26/14 at 44, 78, 106, 190, 197, 201-204, 208,
260-266, 280, 285, 293, 300-301.
According to Taleta Davis and Crystal Fanis,
Workman had a problem with [McCall] because
[McCall] stole an Xbox from Workman’s friend in
December of 2011; they had recently been fighting
about it. N.T. 2/25/14 at 168-171; N.T. 2/26/14 at
112. Police Officer Gary Guaraldo of the Philadelphia
Crime Scene Unit recovered one .38/.357 caliber
bullet jacket from the scene. The medical examiner
recovered one bullet jacket fragment from the
victim’s clothing, caliber indeterminable, and one
.38/.357 caliber bullet from the victim’s body.
According to Officer Welsh, an expert in firearms
identification, these bullets displayed insufficient
corresponding markings to determine whether or not
they were fired from the same gun. N.T. 2/25/14 at
187-189, 204, 229-238.
On February 6, 2012, Detective Crone obtained an
arrest warrant for [McCall]. On February 24, 2012, at
approximately 3:10 p.m., Officer Lovina and Officer
Rodriguez arrested [McCall] on the 6300 block of
Theodore Street in Southwest Philadelphia. N.T.
2/27/14 at 30.
Pa.R.A.P. 1925(a) Opinion, pp. 2-4.
McCall raises two issues in this appeal: (1) whether his conviction for
third degree murder is supported by the weight of the evidence, and (2)
whether the evidence was sufficient to prove that he possessed an
instrument of crime with intent to employ it criminally.
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The law pertaining to weight of the evidence claims is well-settled. The
weight of the evidence is a matter exclusively for the finder of fact, who is
free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses. Commonwealth v. Forbes, 867 A.2d 1268,
1273–74 (Pa.Super.2005). A new trial is not warranted because of “a mere
conflict in the testimony” and must have a stronger foundation than a
reassessment of the credibility of witnesses. Commonwealth v. Bruce,
916 A.2d 657, 665 (Pa.Super.2007). Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice. Id.
On appeal, “our purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the jury verdict
did not shock its conscience. Thus, appellate review of a weight claim
consists of a review of the trial court’s exercise of discretion, not a review of
the underlying question of whether the verdict is against the weight of the
evidence.” Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.Super.2012).
An appellate court may not reverse a verdict unless it is so contrary to the
evidence as to shock one’s sense of justice. Forbes, 867 A.2d at 1273–74.
McCall contends that the weight of the evidence shows that he was
justified in using deadly force. We disagree. The use of deadly force is
justified only if the actor reasonably believes it is necessary to protect
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himself from, inter alia, death or serious bodily injury. 18 Pa.C.S. §
505(b)(2);4 Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa.2012).
The Commonwealth may defeat defendant’s claim of self-defense by proving
either that the “slayer was not free from fault in provoking … the difficulty
which resulted in the slaying or that the slayer’s belief that he was in
“imminent danger of death or great bodily harm” was unreasonable.
Sepulveda, 55 A.3d at 1124; 18 Pa.C.S. § 505(b)(2)(i). Verbal taunts do
not constitute a reasonable basis for shooting someone to death.
Commonwealth v. Mouzon, 53 A.3d 738, 751 (Pa.2012).
Here, the trial court acted within its direction in denying McCall’s
challenge to the weight of the evidence. The Commonwealth introduced
credible evidence showing McCall provoked the confrontation. The victim,
while standing on the street, did not notice McCall standing on his porch.
N.T. 2/25/2014, p. 64. It was not until McCall retrieved the murder weapon
from inside his house and said “something smart” to the victim that an
argument began. Id. at 57, 65. Given this testimony, the trial court
properly found that McCall was not “free from fault.” Sepulveda, 55 A.3d at
1124.
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4
Although the legislature amended section 505 in 2011, the amendments
are not relevant to this case. Neither the former version of section 505 nor
the present version permit the use of deadly force where, as in this case,
there is no reasonable belief of imminent danger and therefore no necessity
to resort to deadly force.
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Additionally, the trial court acted within its discretion by concluding
that McCall did not reasonably believe he was in imminent danger of serious
bodily injury or death. Commonwealth v. Smith, 97 A.3d 782, 787
(Pa.Super.2014). The “imminent danger” test requires the trial court to
consider both subjective and objective factors. Subjectively, a claim of self-
defense cannot succeed unless the defendant “acted out of an honest, bona
fide belief that he was in imminent danger.” Id. In determining the
objective reasonableness of the use of deadly force, the trial court considers
“whether [the victim] was armed, any actual physical contact, size and
strength disparities between the parties, prior dealings between the parties,
threatening or menacing actions on the part of the [victim] and general
circumstances surrounding the incident.” Id. at 788.
Here, McCall did not shoot the victim to protect himself from injury —
he was settling an old score. Shortly before the murder, McCall stated that
he was “getting tired of that bigheaded, light-skinned pussy in the middle of
the block on Blakemore,” and that McCall was going to “fuck [the victim]
up.” N.T. 2/25/2014, p. 143. These words showed that McCall planned to
bring his verbal feud with the victim to a violent end. Moreover, during the
confrontation, McCall did not act like he believed he was in danger of
imminent bodily injury or death. He never tried to take shelter in his house
or call for help. Instead, he pulled out a gun, shot the unarmed victim, and
fled. Even if McCall subjectively believed he was in imminent danger of
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serious bodily injury or death, this belief was not objectively reasonable.
The victim was unarmed. N.T. 2/25/2014, p. 70; N.T., 2/26/2014, p. 95. A
flight of stairs separated McCall from the victim. N.T. 2/25/2014, p. 70.
McCall initiated the confrontation. N.T. 2/25/2014, 57, 137-38). Although
some evidence suggests that the victim was larger than McCall, the fact
remains that the victim was not physically menacing McCall. N.T. 2/25/2014,
p. 70). At most, he was verbally taunting him, which is not sufficient
provocation for the use of deadly force. Mouzon, 53 A.3d at 751. In fact,
eyewitness testimony indicates that not only was McCall on his porch and
the victim on the sidewalk, but the victim had physically turned away when
McCall shot him. N.T. 2/25/2014, p. 58. The medical examiner’s testimony
corroborates this conclusion. The bullet entered the victim at a downward
angle on the left, rear part of his abdomen. N.T. 2/26/2014, p. 19.
For these reasons, we reject McCall’s challenge to the weight of the
evidence underlying his conviction for third degree murder.
McCall next contends that the evidence was insufficient to support his
conviction for PIC. We disagree. Our standard of review for challenges to
the sufficiency of the evidence is well-settled:
[W]hether[,] viewing all the evidence admitted at trial in
the light most favorable to the [Commonwealth as 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
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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.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations
omitted).
18 Pa.C.S. § 907 provides: “A person commits a misdemeanor of the
first degree if he possesses any instrument of crime with intent to employ it
criminally.” McCall argues that the evidence is insufficient to demonstrate
the element of intent to employ the gun criminally against the victim. He
argues in his brief that he merely acted in self-defense. The evidence
summarized above demonstrates, however, that McCall brutally and
maliciously shot the unarmed victim in cold blood, and that he did not act in
self-defense. Accordingly, McCall’s challenge to the sufficiency of the
evidence is devoid of merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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