J-S93019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY I. HIGHSMITH,
Appellant No. 309 EDA 2015
Appeal from the Judgment of Sentence August 15, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0000376-2013
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
DISSENTING MEMORANDUM BY PLATT, J.: FILED MAY 26, 2017
I respectfully dissent. For a sufficiency challenge, as recognized in
principle by the learned Majority, we view the evidence in the light most
favorable to the Commonwealth, as verdict winner. (See Majority, at *24).
Applying this standard, I would affirm Appellant’s judgment of sentence for
his third-degree murder conviction.
It is well-settled that on appellate review, in evaluating a sufficiency
claim, “[w]e do not weigh the evidence or make credibility
determinations[,]” nor can we substitute our judgment for that of the
factfinder. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010),
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*
Retired Senior Judge assigned to the Superior Court.
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appeal denied, 29 A.3d 796 (Pa. 2011) (citation omitted); see also
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014).
In my view, the Majority misapplies our standard of review by re-
weighing the evidence and accepting as credible the self-serving testimony
of Appellant that he shot Scott three times in self-defense when Scott
grabbed his arm and leapt towards him. (See N.T. Trial, 6/10/14, 77-81,
120-21). The trial court sitting as factfinder expressly found Appellant’s
testimony that he acted out of fear for his life “incredible.” (Trial Court
Opinion, 3/17/16, at 15; see id. at 13 (“Although [Appellant] testified that
he killed Mr. Scott because he feared for his life, the facts show that this was
not a credible claim.”)).
Moreover, in accepting Appellant’s version of events, the Majority
overlooks testimony indicating that Scott was not within grabbing distance of
Appellant’s gun when Appellant fired the shots. Disinterested eyewitness
Susan Fournier testified that Appellant and Scott were standing six or seven
feet apart during the incident and, just seconds before the shooting, they
had stopped arguing and were walking away from one another in opposite
directions. (See N.T. Trial, 6/09/14, at 170-71, 173, 175-81). Zahira Ali,
who was walking home with Appellant, testified that Scott was following
them at a distance of a car length, and that she did not observe the men
physically engage at any point. (See id. at 121, 127-29, 133). The
Commonwealth also presented ballistics evidence indicating that the men
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were at least thirty-six inches apart when Appellant fatally shot Scott. (See
id. at 56, 217, 228-29).
From my independent review of this case, I would conclude that the
record amply supports the findings and credibility determinations of the trial
court and its rejection of the voluntary manslaughter charge. Under our
standard of review, this Court is not at liberty to re-weigh the evidence or
disturb the trial court’s findings by viewing the record in the light most
favorable to Appellant, rather than the Commonwealth, and substituting
our judgment on Appellant’s imperfect self-defense claim. Therefore, I
would affirm the judgment of sentence. Accordingly, I respectfully dissent.
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