dissenting.
In part II. B., after a painstaking and flawless analysis, involving the review and discussion of numerous cases which have touched on the issue, the majority concludes, quite properly so, that the observation, by the private detective, of .22 caliber bullets in the petitioner’s purse was made while a part of the defense team and, consequently, resulted from privileged communications. It holds, therefore, that the court erred when it permitted the private detective to testify concerning his observations. The majority goes on, in part II. C., this time, unfortunately, without the same painstaking and flawless analysis, to hold that the error was harmless beyond a reasonable doubt. I agree that the trial court erred. I do not agree that the error was harmless.
In finding the error to be harmless, the majority’s analysis is that, excluding the erroneously admitted evidence, that which remains is so overwhelming that no rational jury *592could have reached a different verdict. In support, it sets out 15 propositions, which it characterizes as “ ‘unchallenged’ physical and forensic-opinion evidence,” from which, it maintains, the petitioner would have been required to generate a reasonable doubt that she acted in self-defense. It concludes that a reasonable doubt could not have been generated from that evidence.
In addition to first degree murder, the court, at petitioner’s request, instructed the jury on second degree murder. Consequently, in addition to the question of the effect of the error on the issue of the petitioner’s guilt or innocence, there is the additional one of whether it influenced the jury determination of the extent of the petitioner’s culpability, i.e. did it influence the first degree murder determination? I am satisfied that the error influenced both the issue of guilt and the issue of how culpable the petitioner was.
I.
Following a thorough review of our cases and those of the Supreme Court which addressed the issue, this Court, in Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976), enunciated the test of harmless error which controls the resolution of this case:
... When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict, (footnote omitted)
Id. at 659, 350 A.2d at 678. The test focuses on the effect of erroneously admitted, or excluded, evidence on the verdict rendered by the jury. Once it has been determined that error was committed, reversal is required unless the error *593did not influence the verdict; the error is harmless only if it did not play any role in the jury’s verdict. The reviewing court must exclude that possibility, “beyond a reasonable doubt.”
We also made clear that the test of harmless error is supposed to be strict; indeed, it “has been and should be carefully circumscribed.” Younie v. State, 272 Md. 233, 248, 322 A.2d 211, 219 (1974). In that case, quoting People v. Jablonski, 38 Mich.App. 33, 195 N.W.2d 777, 780 (1972), we pointed out:
“Continued expansion of the harmless error rule will merely encourage prosecutors to get such testimony in, since they know that, they have a strong case, such testimony will not be considered to be reversible error, yet if they have a weak case, they will use such testimony to buttress the case to gain a conviction and then hope that the issue is not raised on appeal.”
272 Md. at 248, 322 A.2d at 219.
Where the evidence remaining after excluding erroneously admitted evidence is insufficient to sustain the conviction, the error can never be harmless. Similarly, if the questioned evidence goes to an important issue in the case, especially if credibility is central to the resolution of the case, the error in admitting that evidence is likewise not harmless. This is the case because it is the trier of fact, in this case, the jury, not an appellate court, that must find the facts and resolve credibility issues. Therefore, what appears, on the cold record, to be an insurmountable case for the State, when viewed from the jury’s perspective, having seen it unfold through live witnesses, in the dramatic atmosphere of the courtroom, may be quite a close case or result in a defense verdict. How, or why, a jury may decide to resolve credibility or fact issues in a particular manner is a matter only it knows. One thing is certain, the jury is under no obligation to decide any case consistently with what is, objectively, the strongest case.
Thus, although relevant, as a threshold matter, to the harmless error inquiry, we are not here concerned with *594whether the evidence, exclusive of the detective’s observations, is sufficient to sustain the jury’s verdict. It undoubtedly is. Nor need we decide whether a rational jury, presented with evidence, appropriately shorn of the detective’s testimony regarding the contents of the petitioner’s purse, was required, as a matter of law, to find her guilty. It clearly was not. We are concerned, rather, with whether the jury that considered the evidence that was, in fact, admitted, was, or could have been, influenced, in rendering its verdict, by evidence that should not have been admitted.
The relevance of the private detective’s testimony that he saw .22 caliber bullets in the petitioner’s purse is its tendency to prove that, on the day of the victim’s murder, the petitioner possessed the Beretta, the gun found under the victim’s body. It could be inferred from that testimony that the petitioner brought the Beretta to the murder scene, having lured her husband there, and, after shooting and killing him, planted it under his body, thus, creating the predicate for the self-defense story she would later tell. With that testimony as the foundation, the jury could have concluded, as it undoubtedly did, that the petitioner’s self-defense testimony was just so much bunk and, consequently, that she had carefully planned, and executed, the murder. When told of having seen, in the petitioner’s purse, .22 caliber bullets fitting the Beretta, the petitioner’s self-defense testimony notwithstanding, it is difficult to imagine how the jury could have reached any verdict other than “guilty of murder in the first degree.” The fact that there were .22 caliber bullets in the petitioner’s purse a short time after the petitioner claimed she shot the victim in self-defense had to play a role, if not a significant one, in the jury’s deliberations; it certainly tended to negate the self-defense theory. Application of the Dorsey test leads inexorably, in my opinion, to the conclusion that admission of the complained of evidence was by no means harmless. To the contrary, it was exceedingly harmful; it could not help but be.
*595Upon its independent review of the record, the majority declares its belief, beyond a reasonable doubt, that absent the detective’s observations, the jury’s verdict would have been the same. Although it cites Dorsey, the majority does not apply the harmless error test as there enunciated. Instead, it applies the test as explained in Ross v. State, 276 Md. 664, 674, 350 A.2d 680, 686-7 (1976):
The essence of this test is the determination whether the cumulative effect of the properly admitted evidence so outweighs the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded.
Thus, excising the evidence admitted in error, and focusing on what remains, it concludes that a reasonable doubt simply could not have been generated from that evidence. Under that formulation, the test for harmless error is: whether, excluding the offending evidence, that which remains is sufficient to sustain the conviction and/or is, in fact, such that the case for conviction is “overwhelming.” It requires, in addition to the threshold determination of sufficiency, that an appellate court weigh the evidence. So, the majority reasons, where the evidence is sufficient to convict and it is also strong enough to meet its definition of “overwhelming”, only one verdict, guilty, is possible, as a matter of law; hence, that evidence cannot generate a reasonable doubt.
Although the Ross formulation of the test has been stated in subsequent cases, see Trusty v. State, 308 Md. 658, 668-69, 521 A.2d 749, 754 (1987), and even applied, see Mills v. State, 310 Md. 33, 48-49, 527 A.2d 3, 10 (1987) (dicta), I have found no case which has provided a reasoned justification for it. It is significant, I think, that the error in Ross was held not to be harmless and that a factor influencing that holding was that the case was tried by a jury. 276 Md. at 674, 350 A.2d at 686-7. See also State v. Fuller, 308 Md. 547, 554, 520 A.2d 1315, 1318 (1987) (where trier of fact considered erroneously submitted evidence, *596case remanded to determine if, without that evidence trier of fact would reach same conclusion). In any event, that approach, in my opinion, is contrary to the role of an appellate court.
No matter how strong a case for conviction the State may present, even when the defense presents no evidence, the court may not direct a verdict for the State. See Maryland Rule 4-324, which, while providing that a defendant may move for judgment of acquittal, Rule 4-324(a),1 and the court may direct the entry of judgment in his or her favor if there is insufficient evidence, as a matter of law, Rule 4-324(b), makes no provision for the making of a motion for judgment by the State. Compare Maryland Rule 2-519,2 the civil counterpart. Lyles v. State, 308 Md. 129, 135, 517 A.2d 761, 764 (1986). This is so because it is the trier of fact, whether the court or a jury, that must determine if the State has met its burden of proof. To make that determination, the trier of fact is required to find the facts and when, as is usually the case, there are credibility issues, to resolve them. That, in turn, involves weighing the evidence. Appellate courts do not find facts or weigh evidence, “what evidence to believe, what weight to be given it, and what *597facts flow from that evidence are for the jury ... to determine.” Dykes v. State, 319 Md. 206, 224, 571 A.2d 1251, 1260-1 (1990). See Gore v. State, 309 Md. 203, 214, 522 A.2d 1338, (1987); Wilson v. State, 261 Md. 551, 566, 276 A.2d 214, 221 (1971); Jacobs v. State, 238 Md. 648, 650, 210 A.2d 722, 723-4 (1965). Even when an appellate court assesses the sufficiency of the evidence, it does not weigh it, see Clemson v. Butler Aviation-Friendship, 266 Md. 666, 671, 296 A.2d 419, 422 (1972); Gray v. Director, 245 Md. 80, 84, 224 A.2d 879, 881 (1965), it only determines if any evidence exists, on the basis of which a rational trier of fact could find the elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560, 573 (1979); Bloodsworth v. State, 307 Md. 164, 167, 512 A.2d 1056, 1057 (1986). There is no reason that a harmless error analysis should permit it to do more.
By basing its harmless error determination, in part, on the inability of the petitioner to generate a reasonable doubt from the evidence available for its consideration, the majority necessarily has determined the weight to be given the evidence. When it weighs evidence, an appellate court usurps the function of the jury. Moreover, despite its characterization to the contrary, the majority is actually construing the Dorsey test as permitting harmless error to be determined on an "otherwise sufficient” basis: if the evidence is sufficient without the improper evidence, i.e., the jury could have convicted the defendant without it, harm could not have resulted. In any event, whether intended or not, there is a real danger that it will be so construed in future cases. This is nothing more than unwarranted expansion of the harmless error rule, which should not be condoned.
II.
Even if the test applied by the majority were the proper one, reversal is still required.
*598The petitioner testified that she purchased both a .38 caliber “LadySmith” revolver and the Beretta for protection from the victim, whom she feared. She registered both guns, intending to carry one, the Beretta, on her person whenever she met with her husband, and to keep the other at home in her bedside table. The petitioner purchased ammunition for both guns.
On the day of the murder, the petitioner testified that when her husband arrived with their dog, he wanted to take him for a walk. That is why they went into the woods. Subsequently, she told her husband that she had told the police of his admission to her that he had attempted to kill her former boyfriend. At that, she said, the victim became enraged screaming, “You are never going to get a chance to tell the F.B.I. anything else.” He then pulled the Beretta from his pocket and pointed it at her. Moving more quickly, her hand being already in her open purse, poised to turn on the tape recorder, the petitioner maintained that she pulled the LadySmith revolver she had on her person and shot the victim. Concerning the reason she had the Lady-Smith revolver, rather than the Beretta, she asserted that she noticed the Beretta was missing as she was leaving to meet the victim and, so, she picked up the LadySmith. She assumed that the victim took it; he had a key to her home. She also testified that she continued to shoot him because the victim kept coming toward her. She explained that she shot him while he was lying, face down, on the ground because he was still moving and making sounds and she knew that he still had the Beretta.
The majority may well be correct, even without the evidence of the .22 caliber bullets in the petitioner’s purse, the case against the petitioner is very strong, maybe even overwhelming, in favor of the State. It is not so overwhelming, however, as to require, as a matter of law, a verdict for the State; a trier of fact, in this case, the jury, is not compelled to find the petitioner guilty. That the petitioner’s case suffers badly in comparison to the State’s and may only be characterized as “weak” does not mean that *599the petitioner automatically loses. When, as in this case, credibility is involved, a jury is never required to accept, as true, the allegations of the party, which, on an objective basis, presents the strongest case; it may choose to accept the position advocated by the opponent. It is the jury which, having seen and heard the witnesses and resolved conflicts in the testimony, must assess, i.e., weigh, the evidence. To adopt the majority’s position as noted earlier, is to, place the responsibility for weighing evidence on the appellate court.
The petitioner’s testimony that the victim may have taken the Beretta from her home and brought it with him to the rendezvous is neither improbable nor impossible. That he did not do so may be more plausible, but that is not dispositive. Moreover, the fact that the victim wore only slacks and a shirt does not render the petitioner’s testimony that he carried the gun on him inherently unbelievable. Critical to this issue is information bearing on how tapered the victim’s slacks and shirt were, for it, along with evidence as to the size of the Beretta, will determine the plausibility of the petitioner’s testimony on this point. The petitioner has apparently maintained for some time that the victim tried to murder her former boyfriend. From that proposition, it is but a small leap to the propositions which flow from it. Thus, neither the testimony that the victim admitted the attempted murder to her, nor the testimony that the victim flew into a rage when told she had discussed that fact with the police is unreasonable or wholly devoid of credibility. And it is reasonable, hence, by no means unbelievable, that one who is engaged in a rather tense encounter with an enraged person, who, incidentally, has also pulled a gun on her could forget to turn on a tape recorder. To be sure, the majority’s point that a person does not usually go for a gun while holding a large dog with his gun hand is a strong one; however, just how strong is a matter best left for the jury, and not this Court, to decide. If that proposition were true, it would make more plausible one that now seems hopelessly implausible i.e., having produced *600the gun while holding a large dog renders it somewhat understandable that he did not operate it either very efficiently or quickly, which, in turn, may explain why the petitioner had the opportunity to retrieve, and fire, her own gun.3 Whatever my, or the majority’s conclusions, on the point, it is possible that the jury could have been convinced that panic is the explanation for why the petitioner reacted as she did once she shot the victim.
III.
The jury found the petitioner guilty of premeditated first degree murder, as opposed to second degree non-premeditated murder. Even if the erroneously admitted evidence did not influence the jury’s verdict on the issue of the petitioner’s guilt or innocence, I believe that it must have influenced the jury’s decision on the degree of her culpability-
Murder is the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation. These qualifying malevolent states of mind are: 1) the intent to kill, 2) the intent to do grievous bodily harm, 3) the intent to an act under circumstances manifesting extreme indifference to the value of human life (depraved heart), or 4) the intent to commit a dangerous felony, (footnote and citation omitted)
Ross v. State, 308 Md. 337, 340, 519 A.2d 735, 736 (1987).
Maryland Code (1957, 1992 Repl.Vol.) Art. 27 § 407 defines murder in the first degree as “[a]ll murder which shall be perpetrated ... by any kind of willful, deliberate and premeditated killing....” See Wooten-Bey v. State, 308 Md. 534, 537, 520 A.2d 1090, 1091 (1987); Ross v. State, 308 Md. at 337, 341, 519 A.2d 735, 737; Newton v. State, 280 Md. 260, 268, 373 A.2d 262, 266 (1977). All murder not *601designated as murder in the first degree is deemed to be murder in the second degree. Maryland Code, Art. 27 § 411. Thus, murder that is not premeditated, deliberate and wilful, or that is not committed in the perpetration of the felonies enumerated in §§ 408-410, is murder in the second degree. The burden is on the State to prove, beyond a reasonable doubt, the degree of the murder committed by a defendant. Hook v. State, 315 Md. 25, 28 n. 5, 553 A.2d 233, 235 n. 5 (1989), Wilson v. State, 261 Md. 551, 563, 276 A.2d 214, 221 (1971), DeVaughn v. State, 232 Md. 447, 456, 194 A.2d 109,114 (1963), cert. denied, 376 U.S. 927, 84 S.Ct. 693, 11 L.Ed.2d 623 (1964), Elliott v. State, 215 Md. 152, 160, 137 A.2d 130, 134 (1957), and Chisley v. State, 202 Md. 87, 105, 95 A.2d 577, 585 (1953).
In the case sub judice, the critical issue was, did the petitioner act deliberately and with premeditation? The evidence supporting that intent was, of course, the private investigator’s observations. Because it placed bullets for the Beretta in her purse, the jury was enabled to infer that the petitioner murdered the victim premeditatedly, and with deliberation. With that evidence out of the case, the jury could have accepted the petitioner’s testimony on the critical issue and concluded that she did not plan the murder. Again, the critical inquiry is not whether the evidence is sufficient to support the verdict rendered or the weight that evidence should be given; all we need do here is to determine whether, if faced with two choices, there was a sufficient factual predicate to have enabled the jury to find either. On this issue, notwithstanding that they are not, objectively, equally plausible, I think that there was.
IV.
In my opinion, the petitioner was prejudiced by the admission of the private detective’s observation of the bullets in her purse. I would, accordingly, order the new trial to which she is entitled.
. Maryland Rule 4-324(a) provides:
(a) Generally. — A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment of acquittal shall be necessary. A defendant does not waive the right to make the motion by introducing evidence during the presentation of the State’s case.
. Maryland Rule 2-519(a) provides:
(a) Generally. — A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence. The moving party shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of an opposing party’s case.
. The majority’s editorial comments as to what was in the petitioner’s purse depend, I suspect, on the evidence that should have been excluded and, hence, may not be considered.