J-A22001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOMINIC J. FLEMISTER
Appellant No. 1951 MDA 2015
Appeal from the Judgment of Sentence September 17, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002037-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 08, 2016
Dominic Flemister (“Appellant”) appeals the judgment of sentence
entered September 17, 2015 in the Dauphin County Court of Common Pleas
following his jury trial convictions for attempted murder,1 aggravated
assault,2 and firearms carried without a license.3 After careful review, we
affirm.
The trial court summarized the underlying facts of this matter as
follows:
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1
18 Pa.C.S. § 901.
2
18 Pa.C.S. § 2702.
3
18 Pa.C.S. § 6106.
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In late April[] 2014, James Hill, a friend of [Appellant],
known by the nickname “Kool Aid” or “Laid”, saw [Appellant]
arguing with another person at an after-hours club on 19th Street
in Harrisburg. On the same evening, after witnessing the
argument at the club, Hill next saw [Appellant] get out of his
black Chrysler in the area of 17th and Swatara Streets and
continue the argument with the same person. As Hill was
walking on 17th Street[,] he heard two shots. Hill looked in the
direction of the shots and saw [Appellant] get into his car and
pull off. Hill walked several blocks to his cousin’s house where
he sat on the porch. About 10-20 minutes later, [Appellant]
called out to Hill. The two spoke in an alleyway on Swatara
Street. [Appellant] told Hill that the “other guy”, the victim, had
tried to take a swing at him and that [Appellant] “had to do
somethin’ to him” or “somethin’ had to be done to him”. As they
spoke in the alleyway, Hill observed that [Appellant] had a gun.
Hill did not contact police because Hill was friends with
[Appellant] and did not want to “rat him out.” Hill spoke to
police after they contacted him through his girlfriend.
On April 25, 2014, at 3:43 a.m., while on patrol in the area
of 17th and Derry Streets in a marked police vehicle, []
Harrisburg Police Officer Angel Diaz heard a woman screaming.
Officer Diaz activated the emergency equipment on the police
vehicle and pulled toward South 17th and Swatara Streets where
he saw the woman in the street. Officer Diaz saw a person, later
identified as Rodney Dunbar, lying on his back on the porch at
411 South 17th Street bleeding profusely from the groin. Officer
Diaz spoke to Mr. Dunbar to keep him awake until emergency
personnel arrived. Officer Diaz accompanied Mr. Dunbar in the
ambulance en route to the Hershey Medical Center. During the
ambulance ride, Dunbar stated, “they tried to kill me.”
Brianna Chambers, Rodney Dunbar’s[] girlfriend[,] lived
with him at the 400 Block of 17th Street. On the night of the
incident, while she was on the porch, she observed [Appellant]
and another person approach Dunbar. Approximately ten feet
from the porch, a fight broke out between Dunbar and
[Appellant]. Ms. Chambers heard the sound of a gunshot from
the location of the fighting. Ms. Chambers observed neighbors
in the area at the time although they were apart from the fight
and did not participate. Upon realizing that Dunbar had been
shot, Ms. Chambers began screaming and called 911.
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From the scene, police collected a shell casing from a
revolver. Pennsylvania State Police records reflect that on April
25, 2014, [Appellant] did not possess a valid license to carry a
firearm.
Rodney Dunbar sustained a gunshot wound to the left
thigh which caused obliteration of multiple femoral vessels for
which he underwent multiple surgeries for artery repair as well
as blood transfusions.
On the morning after the shooting, on April 2[5], 2014,
Harrisburg Police Detective Ryan Neal met with Brianna
Chambers. From a photo array, Ms. Chambers identified
[Appellant] as the person who fought with and shot Rodney
Dunbar. In a second photo array, Ms. Chambers identified an
individual named Najee Banks as the person [who] accompanied
[Appellant]. Ms. Chambers did not identify Najee Banks as a
person who fought with [Appellant]
Because Mr. Dunbar had undergone surgery, Detective
Neal had only brief contact with him in the initial days following
the shooting. In one of those early visits, on April 26, 2014, in
response to a question as to whether he recognized anyone in
the photo array, Dunbar circled [Appellant’s] picture. Detective
Neal noted on the picture “Unable to sign due to the
circumstances.” In a subsequent visit, Detective Neal again
showed Dunbar a photo array. Dunbar circled a picture of
[Appellant] and stated, “That’s the boy that shot me.” When
Detective Neal asked Dunbar “who is that guy that is circled?”
Dunbar responded, “Kool Aid.” Dunbar signed and noted the
date and time on the photo array. Detective Neal asked, “Now
as far as this Kool Aid guy, how certain are you that this is the
person that shot you?” to which Dunbar responded “Yeah, I’m
100 (sic) for sure.”
At trial, in response to questioning by the prosecutor,
Rodney Dunbar acknowledged only that he recall[ed] being shot
on the night in question, [that he had] to undergo multiple
surgeries[,] and that he remained hospitalized for approximately
one month. After proper foundation, the [c]ourt permitted the
prosecutor to treat Mr. Dunbar as a hostile witness. After
Dunbar’s refusal to answer questions at trial, the [c]ourt directed
that he cooperate [by] reading the transcribed recorded
statement he gave Detective Neal, or, in the alternative, allow
the prosecutor to read the transcript into evidence. Dunbar
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reluctantly cooperated with the reading. In the transcribed
recorded statement, Dunbar stated,
We were all at the crib playing cards and music. So I left
2:00 (sic) to go to Forever Nights. So I seen him, seen
Kool Aid at Forever Nights. We had some words. So after
that I left. Walking to, walking to back to my house. So I
seen Kool Aid come out, hop out, hop out of this black,
black car. He came up to me talkin’ about, oh yeah you
wanna act tough now? You wanna act tough shit? I was,
like, what’s up, and that’s when we start. We start tearin
it. And then after that everything was done. He felt some
type of way. He shot at me. And that’s when I ran to the
porch and laid down. And that’s when my baby mom[4]
called the cops, called the ambulance.
In the statement, Dunbar told Detective Neal that
[Appellant] pulled the gun from his pocket. [Appellant] shot
Dunbar from a distance of 15-20 feet.
Around mid-day on April 28, 2014, Harrisburg Police and
FBI Task Force Officer Richard Gibney received a phone call from
[Appellant’s] cousin, William Flemister. Officer Gibney had dealt
with William in the past and knew of [Appellant]. William
Flemister related that he saw on the internet that Harrisburg
Police wanted [Appellant]. William Flemister stated that he
would have [Appellant] call Officer Gibney.
[Appellant] called Officer Gibney at approximately 3:15
p.m. that day. [Appellant] stated that he did not shoot anyone.
Officer Gibney urged [Appellant] to meet with him and lead
detective Ryan Neal. In the phone conversation, [Appellant] told
Officer Gibney of his whereabouts on the night of the incident,
up to the point of his going to a pizza shop at 17 th and Derry
Streets at 1:45 a.m. [Appellant] gave no information about his
whereabouts after 1:45 a.m. [Appellant] told Officer Gibney that
he knew Rodney Dunbar and that they had an altercation a few
weeks before because he heard that Dunbar was spreading
rumors about him. [Appellant] made no further contact with
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4
The term “baby-momma” or “baby mom” refers to a woman who is the
mother of a man’s child, although not necessarily married to that man.
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Officer Gibney. Officers apprehended [Appellant] on May 20,
2014.
Trial Court Pa.R.A.P. 1925(a) Opinion, February 22, 2016 (“1925(a)
Opinion”), pp. 2-7 (internal record citations and footnote omitted).
Following a trial that occurred on August 19 and 20, 2015, the jury
convicted Appellant as discussed supra. On September 17, 2015, the trial
court imposed an aggregate sentence of 20-40 years’ incarceration.5 This
timely appeal followed.6
Appellant raises the following three (3) claims for our review:
1. Where the shooter was 15-20 feet away from the victim and
the victim was shot in the leg, is there intent to kill?
2. Whether the [j]ury’s finding of guilt on count 1, [c]riminal
[a]ttempt – [m]urder of the [f]irst [d]egree, is against the
weight of the evidence when the victim did not remember who
shot him and no one saw who shot the victim[?]
3. Whether the [j]ury’s finding of guilt on count 2, [a]ggravated
[a]ssault, is against the weight of the evidence when the victim
did not remember who shot him and no one saw who shot the
victim[?]
Appellant’s Brief, p. 6.
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5
Specifically, the trial court sentenced Appellant to 20 to 40 years’
incarceration on the attempted murder conviction, 9 to 18 years’
incarceration on the aggravated assault conviction to be served concurrently
to the attempted murder conviction, and a further 3½ to 7 years’
incarceration on the firearms not to be carried without a license conviction,
also to be served concurrent to the attempted murder conviction.
6
Both the trial court and Appellant complied with Pa.R.A.P. 1925.
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First, Appellant challenges the sufficiency of the evidence proffered by
the Commonwealth to convict him of attempted murder. See Appellant’s
Brief, pp. 14-23. Specifically, Appellant argues the Commonwealth failed to
prove beyond a reasonable doubt that he intended to kill the victim. Id.
This claim fails.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
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
[trier] 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.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
The Crimes Code provides:
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(a) Definition of attempt.–A person commits an attempt
when, with intent to commit a specific crime, he does any act
which constitutes a substantial step toward the commission of
that crime.
18 Pa.C.S. § 901. “A person may be convicted of attempted murder if he
takes a substantial step toward the commission of a killing, with the specific
intent in mind to commit such an act.” Commonwealth v. Jackson, 955
A.2d 441, 444 (Pa.Super.2008) (internal citations and quotations omitted).
“The substantial step test broadens the scope of attempt liability by
concentrating on the acts the defendant has done and does not any longer
focus on the acts remaining to be done before the actual commission of the
crime.” Id. “[A]ttempted murder requires an intent to bring about that
result described by the crime of murder (i.e., the death of another).”
Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.2004). “The
mens rea required for first-degree murder, specific intent to kill, may be
established solely by circumstantial evidence.” Jackson, 995 A.2d at 444.
“The law permits the fact finder to infer that one intends the natural and
probable consequences of his acts.” Id. “The offense of attempt to kill is
completed by the discharging of a firearm at a person with the intent to kill,
despite the fortuitous circumstances that no injury is suffered.”
Commonwealth v. Mapp, 335 A.2d 779, 781 (Pa.Super.1975) (necessary
intent found for attempted murder where defendant shot at victim and
missed). Additionally, our Supreme Court has repeatedly determined that
“[t]he use of a deadly weapon on a vital part of the body is sufficient to
establish the specific intent to kill” required for a first-degree murder
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conviction. See Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.2007);
Commonwealth v. Cousar, 928 A.2d 1025, 1034 (Pa.2007) (“a specific
intent to kill may be inferred from the use of a deadly weapon on a vital part
of a victim’s body.”). Further, evidence of flight is admissible for the
purpose of establishing guilty knowledge. Commonwealth v. Gooding,
649 A.2d 722, 726 (Pa.Super.1994) (citing Commonwealth v. Jones, 319
A.2d 142, 149 (Pa.1974)).
Here, viewing all of the evidence in the light most favorable to the
Commonwealth, there was sufficient evidence for the jury to find that
Appellant used an unlicensed handgun to inflict injury on a vital part of the
victim’s body. Thus, we do not hesitate to find that there was sufficient
evidence to enable the fact-finder to find every element of attempted
murder beyond a reasonable doubt. This claim fails.
Appellant’s second and third issues raise claims that the jury’s verdict
was against the weight of the evidence. See Appellant’s Brief, pp. 24-34.
These claims lack merit.
The denial of a new trial based on a lower court’s determination that
the verdict was not against the weight of the evidence is one of the least
assailable reasons for granting or denying a new trial. Commonwealth v.
Clay, 64 A.3d 1049, 1055 (Pa.2013). This Court reviews weight of the
evidence claims pursuant to the following standard:
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
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obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the
weight of the evidence is addressed to the discretion of the trial
court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge must
do more than reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. 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.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal
citations, quotations, and footnote omitted).
Stated differently, a court may award a new trial because the verdict is
against the weight of the evidence only when the verdict is so contrary to
the evidence as to shock one’s sense of justice, 7 “such that right must be
given another opportunity to prevail.” Commonwealth v. Goodwine, 692
A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight
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7
This Court has explained the notion of “shocking to one’s sense of justice”
as follows:
When the figure of Justice totters on her pedestal, or when the
jury’s verdict, at the time of its rendition, causes the trial judge
to lose his breath, temporarily, and causes him to almost fall
from the bench, then it is truly shocking to the judicial
conscience.
Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).
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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. Widmer, 744 A.2d at 753. When reviewing the
trial court’s determination, this Court gives the gravest deference to the
findings of the court below. We review the court’s actions for an abuse of
discretion. Id.
Simply stated, the jury’s verdict in this matter illustrates that the jury
found credible the witness testimony regarding Appellant’s conduct prior to,
during, and after the shooting. Our review of the trial transcript reveals the
trial court did not abuse its discretion in denying a new trial based on the
weight of the evidence.8 Accordingly, Appellant’s weight of the evidence
claims fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2016
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8
Appellant’s reliance on the victim’s reluctance to testify at trial is
misplaced. As the Commonwealth properly notes, victim/witness
recantation is not uncommon in matters of violent street crime. In any
event, the victim’s reluctance did not prevent the jury from finding Appellant
guilty of the crimes with which he was charged.
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