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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN MAURICE MCDONALD
Appellant No. 680 MDA 2016
Appeal from the Judgment of Sentence March 8, 2016
in the Court of Common Pleas of Dauphin County
Civil Division at No(s): CP-22-CR-0003708-2015
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED MARCH 10, 2017
Appellant, John Maurice McDonald, appeals from the judgment of
sentence of life imprisonment without parole plus two to four years of
incarceration to be served concurrently. This sentence was imposed
following a jury trial resulting in convictions of first degree murder and
carrying a firearm without a license.1 We affirm.
In May 2015, Appellant was at Forever Nights, an after-hours
establishment in Dauphin County, with Kahadeeja Asia Bethea (“Ms.
Bethea”) and her cousin, Shanelle Franklin (“Ms. Franklin”). Notes of
Testimony (N.T.), 3/7-8/16 at 86-87, 211-13, 216-18, 223. Ms. Franklin
said something Appellant did not like, the two began to argue, and Appellant
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1
See 18 Pa.C.S. § 2502 and 6106(a)(1), respectively.
* Former Justice specially assigned to the Superior Court.
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pushed her by placing his open hand on her face.2 Id. at 87-88, 223. Ms.
Franklin walked away and returned shortly thereafter with a security guard
of the establishment, B.J., who was accompanied by a patron of the
establishment, Todd Dunlap (“Mr. Dunlap”). Id. at 88, 224, 226.
B.J. and Mr. Dunlap attempted to get Appellant to leave and explained,
“You’ve got to go. . . You can’t be in here putting your hands on women.
It’s early, [you’re] already starting.” Id. at 88-89. Appellant responded, “I
ain’t going no F-ing where.” Id. B.J. and Mr. Dunlap attempted to calm
Appellant down and when Appellant resisted, Mr. Dunlap tried to restrain
Appellant. Id. Appellant then pulled out a gun and hit Mr. Dunlap on the
head, causing Mr. Dunlap to fall on the ground. Id. at 89-90. Appellant
walked over to Mr. Dunlap, who was still on the ground, and fired a single
shot to the back of Mr. Dunlap’s head. Id. Appellant then stepped over Mr.
Dunlap, walked out of the establishment, got in his car, and drove away.
Id. at 90, 110-11, 223-24. Mr. Dunlap died as a result of the gunshot
wound. Id. at 90-91. Mr. Dunlap was unknown to Appellant. Id. at 233-
34. Appellant did not have a license to carry a firearm. Id. at 237.
At trial, Appellant presented a defense of voluntary intoxication.
Appellant testified that, in the two days prior to going to the bar that night,
he had not slept and had consumed large amounts of alcohol and ecstasy.
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2
Ms. Franklin described this action by stating that Appellant “mushed” her in
the face. Id. at 88.
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N.T. at 227-30. Appellant further testified that he took multiple ecstasy pills
immediately before entering Forever Nights and that he had smoked a
cigarette dipped in embalming fluid earlier in the evening. Id. at 227-30,
232, 236. Ms. Bethea testified that she accompanied Appellant to two bars
prior to their arrival at Forever Nights and Appellant was talking without
making sense. Id. at 214-15. Ms. Bethea witnessed Appellant take the
ecstasy before entering Forever Nights. Id. at 215-16. Appellant’s cousin,
Mariah Selvey (“Ms. Selvey”), who was also at the establishment on the
night of the incident, testified on cross-examination that Appellant was
extremely intoxicated and “real, real high”. Id. at 195-202. Ms. Selvey
testified that prior to arriving at the establishment, she and Appellant were
drinking and taking ecstasy pills. Id. at 197-98.
Ms. Bethea, Ms. Franklin, and Ms. Selvey identified Appellant as the
shooter. Id. at 90, 195, 224. Ms. Franklin testified that Appellant did not
lose his balance while swinging the gun at Mr. Dunlap and observed that
Appellant did not slur his words while arguing with her. Id. at 94-95. The
D.J. at the establishment that night, Abraham Reese, testified that Appellant
was standing on his own, without assistance, while arguing with Ms.
Franklin. Id. at 79.
Following a two-day trial in March 2016, Appellant was convicted of
first degree murder and carrying firearms without a license. Appellant was
sentenced to life imprisonment without parole for the murder charge, and
two to four years of imprisonment for the firearm charge, to be served
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concurrently. Appellant timely filed post-sentence motions, which were
denied by the trial court. Appellant timely appealed and subsequently filed a
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). The lower court did not issue an opinion.
Appellant raises the following issue for our review:
1. DID NOT THE LOWER COURT ABUSE ITS DISCRETION BY
FAILING TO GRANT [APPELLANT] A NEW TRIAL ON THE BASIS
THAT THE GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE WHEN THE TOTALITY OF THE EVIDENCE AS TO THE
ISSUE OF [APPELLANT’S] VOLUNTARY INTOXICATION WAS
UNRELIABLE, CONTRADICTORY, AND INCREDIBLE?
Appellant’s Brief at 4.
Appellant argues his conviction for first degree murder was against the
weight of evidence as his intoxication should have lowered his level of
culpability to third degree murder instead. Appellant’s Brief at 15-20.
Specifically, the Appellant asserts that the Commonwealth did not meet its
burden to refute Appellant’s intoxication defense. Id. The following
principles apply to our review of a weight of the evidence claim:
The weight of the evidence is 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. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the . . . verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999).
Moreover, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
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evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003), cert.
denied, 542 U.S. 939, (2004) (most internal citations omitted). A trial
court's denial of a post-sentence motion based on a weight of the evidence
claim is the least assailable of its rulings. Commonwealth v. Nypaver, 69
A.3d 708, 717 (Pa. Super. 2013) (internal quotations omitted) (citing
Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012).
In order for a jury to find a defendant guilty of murder of the first
degree, “the Commonwealth must prove, beyond a reasonable doubt, that a
human being was lawfully killed, that the accused was responsible for the
killing, and that the accused acted with a specific intent to kill.”
Commonwealth v. Pagan, 950 A.2d 270, 279 (Pa. 2008); see also 18
Pa.C.S. § 2502(a). Specific intent to kill may be inferred from the use of a
deadly weapon to inflict injury on a vital part of the body. Pagan, 950 A.2d
at 279; see also 18 Pa.C.S.A. § 2301.
This Court has previously made clear that a defense of diminished
capacity grounded in voluntary intoxication is a very limited defense, which
does not exculpate the defendant from criminal liability, but, if successfully
advanced, mitigates first degree murder to third degree murder.
Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011). The mere
fact of intoxication is not a defense; rather, the defendant must prove that
his cognitive abilities of deliberation and premeditation were so compromised
by voluntary intoxication that he was unable to formulate the specific intent
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to kill. Id. In other words, to prove a voluntary intoxication defense, the
defendant must show that he was “overwhelmed to the point of losing his
faculties and sensibilities.” Id. (quoting Commonwealth v. Blakeney, 946
A.2d 645, 653 (Pa. 2008); see also Commonwealth v. Collins, 810 A.2d
698, 701 (Pa. Super. 2002) (concluding, generally, defendant has the
burden of proving the defense by a preponderance of the evidence when a
defense is asserted that relates to the defendant's mental state or to
information that is peculiarly within the defendant's own knowledge and
control.). In response, the Commonwealth need not “disprove a negative.”
Commonwealth v. Rose, 321 A.2d 880, 884 (Pa. 1974). Although the
Commonwealth retains the burden of persuasion, “[o]nce a defendant has
come forward with [evidence of his intoxication], ... the Commonwealth ...
may introduce testimony to refute it, but is under no duty to do so.” Id.3
Herein, balanced against testimony describing Appellant’s use of
alcohol and ecstasy, the Commonwealth proffered evidence that Appellant
(1) was responsive to Mr. Dunlap, (2) did not slur his words during his
argument with Ms. Franklin, (3) managed to walk over Mr. Dunlap’s body to
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3
Appellant has erroneously suggested that it is “the Commonwealth’s
burden to disprove the elements” of his voluntary intoxication defense. See
Appellant’s Brief at 15-16 (citing in support Rose, 321 A.2d at 884). To the
contrary, the Rose Court noted specifically that “the Commonwealth has an
unshifting burden to prove beyond a reasonable doubt all elements of the
crime.” Rose, 321 A.2d at 884 (emphasis added). This burden is unaltered
by Appellant’s intoxication defense. Id.
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exit the establishment, and (4) drove himself away following the murder.
The jury was free to believe all, part, or none of this evidence. Small, 741
A.2d at 672. The court instructed the jury to consider Appellant’s defense.
See N.T. at 269-71. Clearly, however, the jury determined that the
Commonwealth’s evidence established the requisite, specific intent to kill.
Rose, 321 A.2d at 884.
Implicit in denying Appellant’s challenge to the weight of the evidence,
the court concluded that the verdict did not “shock one’s sense of justice.”
Small, 741 A.2d at 672. We discern no palpable abuse of discretion in this
regard. Champney, 832 A.2d at 408.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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