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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHANE S. BARKER :
:
Appellant : No. 291 MDA 2017
Appeal from the Judgment of Sentence November 8, 2016
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000983-2015
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 22, 2017
Shane Barker appeals from the judgment of sentence, entered in the
Court of Common Pleas of Dauphin County, following his conviction for third-
degree murder. 18 Pa.C.S. § 2503(b). After our review, we affirm.
Following a five-day trial, a jury convicted Barker of third-degree murder
for the killing of Jerome Buckner in the early morning hours of October 18,
2014. The murder occurred after a disturbance inside Queenies Café, a bar
in downtown Harrisburg. The commotion continued outside the bar after
management cleared the establishment. An altercation between Barker and
the victim ultimately led to Barker firing seven shots toward the victim as the
victim was running away. Four of the shots struck the victim, causing his
death.
At trial, the Commonwealth presented several witnesses, including
eyewitnesses and medical and ballistic experts. Doctor Wayne Ross, who
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* Retired Senior Judge assigned to the Superior Court.
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performed the autopsy, testified that the four gunshots that struck the victim,
two to the back, one to the back of the right elbow, and one to the back of
the right leg, all entered the victim from the back and from right to left in an
upward path of travel. N.T. Jury Trial, 8/22-26/16, at 358-62.
Barker testified that after the bar management cleared the
establishment, he went to his car alone and unlocked the doors and the victim
“came out of nowhere” and hit him on the right side of his face. He stated
that he assumed the victim hit him again because he was on the ground
outside of his car and felt the victim tugging on his clothes. Barker retrieved
his gun from under the driver’s seat of his car, and fired the gun at the victim.
Id. at 661-669, 702.
Following trial, Barker was convicted and the Honorable Richard A. Lewis
sentenced him to 18-36 years’ imprisonment. Barker filed a timely post-
sentence motion,1 which was denied. He then filed a timely notice of appeal
and a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. He raises the following issues for our review:
1. Did the trial court abuse its discretion by failing to grant
[Barker] 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 issues of self-defense and imperfect self-
defense was unreliable, contradictory, and incredible?
2. Was the imposition of a sentence of 18 years to 36 years,
90 percent of the statutory maximum sentence, clearly
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1 Barker properly preserved his weight of the evidence claim and his
sentencing claim in his post-sentence motion. See Post-Sentence Motion,
11/18/16, at ¶¶ 5, 7. See also Pa.R.Crim.P. 607(A)(3).
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unreasonable, so manifestly excessive as to constitute an
abuse of discretion, and inconsistent with the protection of
the public, the gravity of the offense, and [Barker’s]
rehabilitative needs?
Appellant’s Brief, at 5.
The decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Thus, the function of
an appellate court on appeal is to review the trial court’s exercise
of discretion based upon a review of the record, rather than to
consider de novo the underlying question of the weight of the
evidence. An appellate court may not overturn the trial court’s
decision unless the trial court palpably abused its discretion in
ruling on the weight claim. Further, in reviewing a challenge to
the weight of the evidence, a verdict will be overturned [by the
trial court] only if it is so contrary to the evidence as to shock
one’s sense of justice.
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016 ) (internal citations
and quotation marks omitted). See Commonwealth v. Ratushny, 17 A.3d
1269, 1272 (Pa. Super. 2011) (appellate review of weight claim is limited to
whether trial judge’s discretion was properly exercised and relief will only be
granted where facts and inferences of record disclose palpable abuse of
discretion).
Barker argues that, in light of his alternative justification defenses, self-
defense and imperfect self-defense, the verdict was against the weight of the
evidence. Specifically, Barker maintains that the use of deadly force was
justified pursuant to 18 Pa.C.S. § 505 because he had a reasonable belief that
such force was necessary to protect himself against death or serious bodily
injury, or that he subjectively entertained a belief in the necessity of using
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deadly force, but that such belief was unreasonable. See 18 Pa.C.S. §
2503(b). Barker argues the greater weight of the evidence introduced at trial-
namely, his testimony - established that, based upon his own intoxicated state
and thus his overreaction to the threat presented by the victim, he believed
deadly force was necessary to protect himself against death or serious bodily
injury. Barker also argues that his reaction was derived in part from the fact
that he himself was the victim of an assault, where he was stabbed eleven
times in July 2000. N.T. Jury Trial, 8/22-26/16, at 681-82. In light of this
testimony, he claims that the Commonwealth failed to disprove beyond a
reasonable doubt his justification defense.
Here, Barker’s claim is grounded entirely on his opinion that the jury
should have given more weight to his testimony than to the overwhelming
evidence of his guilt offered by the Commonwealth. However, it was entirely
within the jury’s province as the finder-of-fact to believe the evidence
presented by the Commonwealth—which fully supported the jury's verdict—
and to discredit Barker’s testimony, as it apparently did here. See
Commonwealth v. Smith, 861 A.2d 892, 896 (Pa. 2004) (appellant cannot
prevail on weight claim merely because he believes of all the evidence
presented at trial, his statement was most truthful; it is within province of
jury, as finder of fact, to decide whether witness’ testimony lacks credibility).
We may not find that the trial court abused its discretion in rejecting Barker’s
weight of the evidence claim under such circumstances. In its opinion, the
trial court set forth the relevant evidence, weighed the evidence, and
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determined there was no merit to Barker’s weight claim. We decline Barker’s
invitation to assume the role of the fact-finder and reweigh the evidence on
appeal. Thus, upon our review of the record and Barker’s arguments, we
conclude that the trial court did not abuse its discretion in denying his weight
of evidence challenge. See Commonwealth v. Brown, 23 A.3d 544, 561
(Pa. Super. 2011); see also Commonwealth v. Santiago, 980 A.2d 659,
664 (Pa. Super. 2009) (concluding trial court did not abuse its discretion in
denying weight challenge where appellant asked this Court to reweigh
evidence).
Next, Barker claims the court abused its discretion in sentencing him to
a term of imprisonment of 18 to 36 years. “Where an appellant challenges
the discretionary aspects of a sentence, there is no automatic right to appeal,
and an appellant’s appeal should be considered a petition for allowance of
appeal.” Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super.
2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Barker has fulfilled the first three prongs. With respect to the final
prong, Barker states in his Pa.R.A.P. 2119(f) statement that his sentence was
manifestly excessive in light of his history and background, and that the court
focused solely on the seriousness of the crime. He also asserts that the court
disregarded mitigating factors, including his lack of a prior record, his work
history, the fact that he obtained his high school diploma as an adult to acquire
better employment, and the fact that in the two years between his arrest and
trial, he was a model prisoner and completed course work to become an
ordained minister. Appellant’s Brief, at 33-36.
Whether a substantial question exists is determined on a case by case
basis. Here, we conclude that Barker has raised a substantial question. See
Commonwealth v. Raven, 97 A.3d 1244 (Pa. Super. 2014) (explaining
excessive sentence claim, raised in conjunction with assertion court failed to
consider mitigating factors, raises substantial question). See also
Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009) (averment that
court sentenced based solely on seriousness of the offense and failed to
consider all relevant factors raises substantial question).
An appellate court will not disturb the sentencing court’s judgment
absent a manifest abuse of discretion. In order to constitute an abuse of
discretion, “a sentence must either exceed the statutory limits or be so
manifestly excessive as to constitute an abuse of discretion.” See
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Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008). “Further,
a sentence should not be disturbed where it is evident that the sentencing
court was aware of sentencing considerations and weighed the considerations
in a meaningful fashion.” Id.
In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), our Supreme
Court noted that our ability to review a sentence is constrained by 42 Pa.C.S.
§ 9781(c). The Walls Court emphasized the deferential nature of our
examination of any sentence, stating that the “sentencing court is in the best
position to determine the proper penalty for a particular offense based upon
an evaluation of the individual circumstances before it.” Id. at 961 (citation
and quotation marks omitted). By statute, this Court can vacate a sentence
and remand for re-sentencing only if we find: 1) that the court intended to
sentence within the guidelines but “applied the guidelines erroneously;” 2) the
sentence was imposed within the guidelines “but the case involves
circumstances where the application of the guidelines would be clearly
unreasonable;” or, 3) “the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.” 42 Pa.C.S. § 9781(c). “In all
other cases the appellate court shall affirm the sentence imposed by the
sentencing court.” Id.
Here, Barker acknowledges his sentence is within the sentencing
guidelines, but argues application of the guidelines under the circumstances,
in particular where Barker’s prior record score is a “0,” yields an unreasonable
and manifestly excessive sentence. We disagree.
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The sentencing court was well aware of Barker’s history and his
productive use of his time while incarcerated prior to trial, see N.T.
Sentencing, 11/8/16, at 26, and considered the fact that he had five children
and the impact the sentence would have on his family. Id. The court also
noted that Barker’s expression of remorse in his statement to the victim’s
family was “sincere and heartfelt.” Id. The court considered these mitigating
factors in imposing sentence, as well as the 21-page presentence investigation
report. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“Where
pre-sentence reports exist, we shall continue to presume that the sentencing
judge was aware of relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory factors.”).
Notably, the court stated the following on the record:
I also had to take into account that this was a terrible situation for
[the victim’s] family, as well. Nine children are left without a
father. . . . So the bottom line is very simple. Two families have
been shattered. . . . [T]he impact is terrible, not only on the
families, both families, but on the community as well because this
just adds one more sad and tragic and unfortunate layer to the
Harrisburg area’s growing reputation for senseless gun violence. .
. . . One of the key factors, Mr. Barker, that I had to consider in
this case is the introduction of a gun into this argument or fight or
whatever it was. It is still not clear to me and I don’t think there
was any convincing evidence one way or other to show that [the
victim[] was in any way involved in this argument or dispute that
occurred inside the bar and yet he ends up shot and killed. And
quite frankly, all the evidence suggests that you introduced a gun
a deadly weapon, into this encounter[.]. . . You brought a gun to
an argument and the results are tragic.
N.T. Sentencing, supra at 27-28.
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As noted above, Barker acknowledges the sentence was within the
guidelines. Thus, the question is whether the sentence, under the
circumstances, was clearly unreasonable. See 42 Pa.C.S. § 9781(c). Here,
upon review of the record before us, and in particular the findings upon which
the sentencing court based the sentence and the circumstances of the offense,
we conclude the sentence is not clearly unreasonable. The sentencing court
demonstrated on the record that it weighed the Sentencing Guidelines with
the facts of the crime and Barker’s character in a meaningful fashion. Thus,
we will not disturb the court’s sentence. See Commonwealth v. Begley,
780 A.2d 605, 642-43 (Pa. 2001); Devers, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2017
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