J-S16021-17
2017 PA Super 162
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAIKWEON K. FORTSON :
:
Appellant : No. 911 WDA 2016
Appeal from the Judgment of Sentence January 28, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016615-2014
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
OPINION BY RANSOM, J.: FILED MAY 26, 2017
Appellant, Daikweon Fortson, appeals from the judgment of sentence
of thirteen to twenty-six years of incarceration imposed January 28, 2016,
following a bench trial resulting in his conviction for attempted homicide,
robbery, aggravated assault, possession of a firearm by a minor, and
possession of a weapon.1 We affirm.
The relevant facts and procedural history are as follows. Appellant and
Karron Tucker showed up at C.J. Clawson’s house to buy marijuana from
him. See Notes of Testimony (N.T.), 11/2/2015, at 32. C.J. was hanging
out with Tyler Grant at the time. See id. C.J. did not have enough
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 901(a), 3701(a)(1)(iii), 2702(a)(1), 6110.1(a), and 907(b),
respectively.
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marijuana to sell them. Id. at 25, 33. C.J. contacted Gino Roland, Jr. 2 via
twitter to inquire about purchasing additional marijuana. Id. at 26, 33.
Gino agreed to sell C.J. one half ounce of marijuana. Id. at 116, 126. C.J.
agreed to meet Gino at Carl Schmidt’s house. See id.
C.J. brought Appellant, Karron, and Tyler when he went to meet Gino
at Carl’s house. Id. at 26. When the four of them arrived, C.J. remained on
the porch while Gino and Carl walked into the alleyway on the side of the
house with Appellant, Karron, and Tyler. Id. at 27, 57. Either Appellant or
Karron took the marijuana without paying Gino. Id. at 29, 58, 134.
Appellant and Karron tried to run away, but Gino and Carl chased them and
caught up. Id. at 29-30. A fight ensued. Id. at 30. Gino began wrestling
with Karron. Id. at 46, 59-60, 132. Gino knocked Karron down onto the
ground and was standing over top of him. Id. at 132. Appellant pulled a
gun on Gino. Id. at 30-31, 59, 131-32. At the time of the incident,
however, Appellant was ineligible to carry a concealed firearm because of his
age. Id. at 111.
Appellant aimed the gun at Gino’s face, and Gino heard a click, but it
did not fire. Id. at 31, 136-138. Gino tried to wrestle Appellant for the gun.
Id. at 60. Appellant got free, pulled the trigger, and shot Gino in the back
from five feet away. Id. at 31, 60-61. Carl remained to help Gino as the
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2
Trial court opinion refers to Gino Roland as “Roldan.”
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others fled. Id. at 53. Officer Jones found Gino lying on the sidewalk
bleeding profusely. Id. at 11-12, 11-15. Gino suffered two fractured ribs,
two fractured vertebrae, and two collapsed lungs. Id. at 121-123.
Following a non-jury trial, Appellant was found guilty and sentenced as
described above.3 Appellant filed a post-sentence motion, which the court
denied on May 31, 2016. Appellant timely filed a notice of appeal and court-
ordered Pa.R.A.P. 1925(b) statement. The court filed a responsive opinion.
On appeal, Appellant raises the following issues:
I. Whether the Commonwealth produced sufficient evidence
to sustain a guilty verdict for criminal attempt – criminal
homicide?
II. Whether the verdict is against the weight of the evidence
presented?
III. Whether Pennsylvania’s sentencing guidelines as applied to
a juvenile defendant violated the proportionality requirement of
the Eighth Amendment?
Appellant's Br. at 3.
First, Appellant challenges the sufficiency of the evidence offered to
prove criminal attempt to commit murder. In reviewing the sufficiency of
the evidence, our standard of review is as follows:
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3
At the time of the underlying offenses, Appellant was fifteen years old.
Appellant was automatically certified to adult criminal court. Thereafter, he
filed a motion for decertification. The trial court record does not disclose
disposition on the motion. Appellant has not raised the issue of his
certification for trial as an adult on appeal.
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[W]hether 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).
“A person commits an attempt when, with the intent to commit a
specific crime, he does any act which constitutes a substantial step towards
the commission of that crime.” 18 Pa.C.S. § 901(a).
“For a defendant to be found guilty of attempted murder, the
Commonwealth must establish specific intent to kill.”
Commonwealth v. Geathers, 847 A.2d 730, 734
(Pa.Super.2004). Therefore, “[i]f a person takes a substantial
step toward the commission of a killing, with the specific intent
in mind to commit such an act, he may be convicted of
attempted murder.” In re R.D., 44 A.3d 657, 678
(Pa.Super.2012). “The Commonwealth may establish the mens
rea required for first-degree murder, specific intent to kill, solely
from circumstantial evidence.” Id. Further, 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.” Commonwealth v. Rega, 933 A.2d 997, 1009
(Pa. 2007); see also Commonwealth v. Cousar, 928 A.2d
1025, 1034 (Pa. 2007) (“a specific intent to kill may be inferred
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from the use of a deadly weapon on a vital part of the victim's
body.”).
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016), appeal
denied, 143 A.3d 955 (Pa. 2017).
Here, Appellant argues that the Commonwealth failed to present
evidence to prove that he possessed the specific intent to kill, i.e., to commit
a “willful, deliberate, and premeditated killing.” Appellant's Br. at 12
(quoting 18 Pa.C.S. § 2502). Appellant asserts that the Commonwealth
provided no evidence of prior interactions between the victim and Appellant.
He asserts that he did not initiate the physical altercation and maintains that
he was trying to escape when he shot the victim.
As previously noted, a specific intent to kill may be proven by
circumstantial evidence. Further, in the trial of a person for attempting to
commit murder, “the fact that that person was armed with a firearm, used
or attempted to be used, and had no license to carry the same, shall be
evidence of that person's intention to commit the offense.” 18 Pa.C.S. §
6104.
Appellant argues that he did not initiate the physical altercation, which
appears to assert that he acted in self-defense rather than pre-meditated
the killing. However, there is no evidence that he presented this theory in
pre-trial motions or as a defense at trial. Further, his argument does not
articulate a challenge that the evidence was insufficient to infer a specific
intent to kill. Thus, his argument is misplaced as it is more appropriately
directed to the weight of the evidence presented at trial, as discussed infra.
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Here, the evidence presented established that Appellant attempted to
shoot the victim in the face, but the gun failed to fire. Appellant tried to
shoot the Victim again. As the trial court explained, he “took deliberate aim
at the back of a man on the ground and fired a bullet into his spine.” TCO,
8/26/2016, at 10. Appellant shot the victim at a close range, nearly killing
him.4 The jury may infer specific intent to commit murder from the fact that
Appellant took multiple attempts to shoot the Victim in vital parts of his
body. Rega, 933 A.2d at 1009; Cousar, 928 A.2d at 1034; see also
Commonwealth v. Harris, 817 A.2d 1033, 1039 (Pa. 2002). In addition,
Appellant was illegally armed with a firearm at the time of the incident,
which provides further evidence of intent. See 18 Pa.C.S. § 6104. Based on
the totality of the circumstances, the evidence was sufficient for the jury to
infer a specific intent to murder the victim beyond a reasonable doubt.
Tucker, 143 A.3d at 964-65.
Second, Appellant contends that the verdict was against the weight of
the evidence. Appellant reasserts that he was trying to escape from the
victim, rather than kill him. Further, Appellant claims that the factfinder
relied on contradictory and inconsistent testimony. Appellant argues that
inconsistencies in the witness testimony made it “equally if not more likely
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4
The bullet fractured two of the victim’s ribs propelling shards of bone into
his left lung causing extensive lacerations and hemorrhaging. See N.T.,
1/28/2016, at 6. The victim suffered two fractured ribs, two collapsed
lungs, and a fractured vertebrae from the bullet path. Id.
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that [Appellant] was attempting to effectuate his escape from the incident
when he shot the victim, and was not trying to kill him.” Appellant's Br. at
13-14.
In assessing a claim that the verdict was against the weight of the
evidence, this Court will not substitute its judgment for that of the factfinder,
which is free to assess the credibility of witnesses and to believe all, part, or
none of the evidence presented. Commonwealth v. DeJesus, 860 A.2d
102 (Pa. 2004); Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995)
(“[A]n appellate court is barred from substituting its judgment for that of the
finder of fact.” (citing Commonwealth v. Pronkoski, 445 A.2d 1203, 1206
(1982)).
“When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.” Commonwealth v. Rossetti,
863 A.2d 1185, 1191 (Pa. Super. 2004) (citation omitted).
“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
evidence.” Commonwealth v. Champney, 832 A.2d 403, 408
(Pa. 2003). “Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on the weight
claim.” Id.
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007).
Further, this Court will not reverse a verdict unless it is so contrary to the
evidence as to shock one’s sense of justice. Commonwealth v. Giordano,
121 A.3d 998, 1007 (Pa. Super. 2015).
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Appellant’s argument fails to reveal any inconsistencies in testimony
that would affect the overall outcome of the case, and his contention that
the trial court incorrectly weighed his own testimony is merely self-serving.
Here, multiple witnesses established that Appellant brandished a firearm,
without a license to carry it, and, while standing a short distance away from
the victim, shot the victim in the back. In light of this ample evidence, the
court’s verdict certainly did not shock one’s sense of justice. Giordano, 121
A.3d at 1007. Thus, the trial court did not commit a palpable abuse of
discretion in denying Appellant’s weight claim. Trippett, 932 A.2d at 198.
Next, Appellant contends that the Pennsylvania sentencing guidelines
violate the proportionality requirement of the Eighth Amendment of the U.S.
Constitution. Appellant's Br. at 17-20; 42 Pa.C.S. § 2154 (directing the
sentencing commission to adopt guidelines); 204 Pa. Code § 303.11
(referencing the purpose of the guidelines).5 However, Appellant asserts
that the guidelines’ primary focus on retribution does not adequately take
into account the evolution of recent United States Supreme Court precedent
recognizing the diminished culpability for juveniles. Appellant's Br. at 20
(suggesting that the only safeguard against imposition of an unconstitutional
sentence is the trial court’s discretion). Thus, Appellant concludes that the
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5
Although Appellant cites a single section of the guidelines, his challenge
applies to the guidelines in their entirety. See 204 Pa. Code §§ 303.1-
.18(c).
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sentence imposed upon him was unconstitutional.
Duly enacted legislation carries a strong presumption of
constitutionality. Commonwealth v. Turner, 80 A.3d 754, 759 (Pa. 2013).
The General Assembly does “not intend to violate the constitution of the
United States or of this Commonwealth when promulgating legislation.”
Commonwealth v. Baker, 78 A.3d 1044, 1050 (Pa. 2013) (quoting 1
Pa.C.S. § 1922(3)).
In conducting our review, we are guided by the principle that
acts passed by the General Assembly are strongly presumed to
be constitutional, including the manner in which they were
passed. Thus, a statute will not be found unconstitutional unless
it clearly, palpably, and plainly violates the Constitution. If there
is any doubt as to whether a challenger has met this high
burden, then we will resolve that doubt in favor of the statute's
constitutionality.
Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal
quotation marks and citations omitted). “As the constitutionality of a statute
presents a pure question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Lawrence, 99 A.3d 116,
118 (Pa. Super. 2014) (citing Turner, supra).
The Eighth Amendment to the Federal Constitution states that
“[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” 6 U.S.
CONST. amend. VIII. The Eighth Amendment is unique in
constitutional jurisprudence because it “must draw its meaning
from the evolving standards of decency that mark the progress
of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101
(1958) (plurality). “[T]he Eighth Amendment's protection
against excessive or cruel and unusual punishments flows from
the basic ‘precept of justice that punishment for [a] crime should
be graduated and proportioned to [the] offense.’” Kennedy v.
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Louisiana, 554 U.S. 407, 419 (2008), quoting Weems v.
United States, 217 U.S. 349, 367 (1910). “By protecting even
those convicted of heinous crimes, the Eighth Amendment
reaffirms the duty of the government to respect the dignity of all
persons.” Hall v. Florida, ___ U.S. ___, 134 S.Ct. 1986, 1992
(2014) (citation omitted).
Lawrence, 99 A.3d at 119 (parallel citations omitted).
It is settled that juvenile defendants are less culpable for criminal
behavior than adults. Roper v. Simmons, 125 S. Ct. 1183, 1195 (2005)
(recognizing juveniles’ lack of maturity, susceptibility to negative influences,
and the transitory nature of their personality traits). The recognition of this
diminished culpability has led the United States Supreme Court to conclude
that certain categories of punishments are violative of the Eighth
Amendment. For example, in Roper, the Court abolished the death penalty
for juvenile offenders under eighteen. Id. at 1200. Thereafter, the Court
prohibited imposition of life without parole upon juveniles for non-homicide
crimes. Graham v. Florida, 130 S. Ct. 2011, 2030 (2010) (instructing that
States afford juvenile defendants convicted of non-homicide crimes “some
meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation”). Most recently, the Supreme Court prohibited
mandatory life without parole sentences for juveniles convicted of homicide.
Miller v. Alabama, 132 S. Ct. 2455, 2646 (2012).
However, this Court has declined to expand the categories of
punishment prohibited based upon the diminished culpability of youth. See
Lawrence, 99 A.3d at 122 (rejecting an argument to expand the categorical
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prohibition recognized in Miller to the sentencing scheme set forth in 18
Pa.C.S. § 1102, which mandates a minimum thirty-five year sentence for
juveniles convicted of first-degree murder). Certainly here, where the
sentence imposed – thirteen to twenty-six years - is far less severe than
those considered by the Supreme Court or by this Court, no such categorical
prohibition is warranted.
Moreover, considering that this Court has determined previously that
sentences far more severe than that imposed upon Appellant provide a
meaningful opportunity for release, the Supreme Court’s general
admonition, articulated in Graham, is not at issue here. Id. at 124
(affirming a forty-five year to life sentence for juvenile convicted of first-
degree murder); see also Commonwealth v. Brooker, 103 A.3d 325,
339-40 (Pa. Super. 2014) (concluding that a thirty-five year sentence for
first-degree murder was not equivalent to a life sentence, provided a
meaningful opportunity for release, and therefore did not violate the Eighth
Amendment). Thus, despite diminished culpability, it remains constitutional
that juveniles convicted of serious crimes may receive significant periods of
incarceration. Lawrence; Brooker.
Finally, turning to the guidelines, we note the following. In directing
the Sentencing Commission to adopt guidelines, the General Assembly
required that sentencing recommendations be “consistent with the
protection of the public, the gravity of the offense as it relates to the impact
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on the life of the victim and the community and the rehabilitative needs of
the offender.” 42 Pa.C.S. § 2154(a). Section 303.11(a) reflects these
requirements, defining the purpose of the guidelines in relevant part:
The sentencing guidelines provide sanctions proportionate to the
severity of the crime and the severity of the offender's prior
conviction record. This establishes a sentencing system with a
primary focus on retribution, but one in which the
recommendations allow for the fulfillment of other sentencing
purposes including rehabilitation, deterrence, and incapacitation.
204 Pa.Code § 303.11(a).
The guidelines’ express declaration that sentences must be
proportionate to the severity of the crime and that rehabilitation of the
offender is a fundamental purpose undermines Appellant’s singular focus on
the retributive nature of criminal sanctions. Thus, in our view, Appellant’s
argument is not persuasive.
Moreover, the guidelines set forth a framework, to be considered by
the sentencing court in fashioning an individualized sentence. See
Commonwealth v. Walls, 926 A.2d 957, 962-963 (Pa. 2007); see also 42
Pa.C.S. §§ 2154(a), 9721; see generally 204 Pa.Code §§ 303.1-.18(c). To
be clear, while the court must consider the guidelines, the court is also
afforded broad discretion in sentencing matters, as it is in the best position
to evaluate the individual circumstances before it. Walls, 926 A.2d at 961.
Thus, the guidelines “merely inform the sentencing decision.” Id. at 962.
Appellant suggests that this broad discretion is insufficient to protect
the juvenile defendant. We disagree. The advisory nature of the guidelines
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ensures, as constitutionally required, that the diminished culpability of
juvenile defendants is properly considered. In exercising its discretion,
“[t]he sentencing court must impose a sentence that is appropriate in light
of the individualized facts of the underlying incident.” Commonwealth v.
Johnson, 873 A.2d 704, 709 (Pa. Super. 2005); see also Commonwealth
v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002), appeal denied, 868 A.2d 1198
(2005), cert. denied, 125 S. Ct. 2984 (2005). The court must consider
aggravating and mitigating circumstances. “In particular, the court should
refer to the defendant's prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Commonwealth v.
Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (quoting Griffin 804 A.2d at
10) (emphasis added), appeal denied, 76 A.3d 538 (Pa. 2013);
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)).
For these reasons, we conclude that the sentencing guidelines, as
applied to Appellant, do not violate the proportionality requirement of the
Eighth Amendment. Accordingly, no relief is due.6
Judgment of sentence affirmed.
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6
To the extent Appellant suggests that the court did not adequately account
for his youth and his “minimal” prior interactions with the juvenile justice
system, such a claim is more appropriately formulated as a challenge to
discretionary aspects of his sentence, i.e., that the court failed to consider
youthfulness as a mitigating factor. Appellant has not preserved such a
claim, and it is therefore waived.
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Judge Moulton joins.
Judge Platt concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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