J-S78020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRELL ANTWON                             :
                                               :
                       Appellant               :   No. 3069 EDA 2017

          Appeal from the Judgment of Sentence Entered May 19, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0007696-2015


BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED APRIL 04, 2019

        Terrell Antwon appeals the judgment of sentence entered on May 19,

2017, after the jury convicted him of third-degree murder; carrying a firearm

on a public street or public property in Philadelphia; and possessing an

instrument of crime.1 Antwon challenges the sufficiency and weight of the

evidence; maintains that the trial court erred in denying his motion to

suppress; and that the Commonwealth failed to disprove his claim of self-

defense and defense of others. We affirm.

        The trial court aptly summarized the facts of this case as follows:

        At trial, the Commonwealth presented the testimony of
        Philadelphia Police Officers Kenneth Downing, Brian Stark, Steven
        Berardi, Kelly Walker, and Michael Levin, Philadelphia Police
        Detectives John Keen and James Pitts, [and] Philadelphia Police
____________________________________________


*    Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502(c), 6108, and 907, respectively.
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      Sergeants William Robbins Harvey, Steven Guy, Lonay Newkirk,
      and Debra Morgan. Co-defendant Wiggins presented the
      testimony of Kimberlee Johnson, Dorin Harris, and Lorraine
      Stewart. [Antwon] did not present any evidence. Viewed in the
      light most favorable to the Commonwealth as the verdict winner,
      the evidence established the following.

             On November 23, 2012, at approximately 1:30 a.m.,
      Rashon Wiggins was engaged in an argument with Anthony
      Palmer outside of Buffy’s bar at the corner of Clarissa Street and
      Dennie Street in Philadelphia. The victim, Johnika Tiggett, walked
      up to Wiggins and Palmer and attempted to get them to stop
      arguing. [Antwon] then came up and whispered something to
      Wiggins, who then walked away. After Wiggins walked away,
      [Antwon] and Palmer began arguing. Tiggett, again, attempted to
      stop the argument, and then left, heading down Dennie Street
      toward Wayne Avenue. Palmer and Wiggins, however, continued
      arguing until Palmer started walking away to the other side of
      Dennie Street, where Byron McDonald, Roland Thompson
      (“Mustafa”), and Roland Thompson, Jr. (“Man-Man”) were
      standing. [Antwon] then pulled out a semiautomatic handgun and
      began shooting in Palmer’s direction. McDonald, Mustafa, Man-
      Man, and Palmer then began shooting back at defendant. During
      the shootout, during which around 40 shots were fired, Mustafa
      fired a shot that struck Tiggett in the back of the neck while she
      was running away down the street. Police took Tiggett to Temple
      Hospital, where she died later than night. An autopsy later
      revealed the cause of death was a gunshot wound to the neck.

Trial Court Pa.R.A.P. 1925(a) Opinion (“TCO”), filed November 22, 2017, at

2-3 (citations to notes of testimony omitted). Following trial, the trial court

sentenced him to life without parole for third-degree murder and no further

penalty for the remaining charges. Antwon filed a post-sentence motion, which

the trial court denied. This timely appeal followed.

      Antwon raises the following issues on appeal:

      1. Whether the out-of-court identification procedures violated
         [Antwon’s] Due Process rights where an unduly suggestive



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        single photograph was presented to two witnesses to identify
        [Antwon] instead of a multiple photograph array?

     2. Whether the evidence produced at trial was sufficient to sustain
        the jury’s verdict that [Antwon] had the requisite malicious
        intent necessary to convict him of Murder of the Third Degree?

     3. Whether the jury’s verdict finding [Antwon] guilty of Murder of
        the Third Degree was against the weight of the evidence?

     4. Whether the Commonwealth failed to disprove self-defense and
        defense of others beyond a reasonable doubt where [Antwon]
        fired at four men who were firing at him and others?

Antwon’s Br. at 5-6.

DENIAL OF SUPPRESSION MOTION

     Our review of the denial of a suppression motion is as follows:

     [An appellate court’s] standard of review in addressing a challenge
     to the denial of a suppression motion is limited to determining
     whether the suppression court’s factual findings are supported by
     the record and whether the legal conclusions drawn from those
     facts are correct. Because the Commonwealth prevailed before the
     suppression court, we may consider only the evidence of the
     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted when read in the context of the record as
     a whole. Where the suppression court’s factual findings are
     supported by the record, [the appellate court is] bound by [those]
     findings and may reverse only if the court’s legal conclusions are
     erroneous. Where . . . the appeal of the determination of the
     suppression court turns on allegations of legal error, the
     suppression court’s legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts. Thus, the conclusions
     of law of the courts below are subject to [] plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (brackets

in original) (quoting Commonwealth v. Jones, 121 A.3d 524, 526-27

(Pa.Super. 2015)). We are also limited to reviewing the evidence from



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suppression hearing. Id. Antwon argues that the trial court erred in denying

his motion to suppress out of court identifications from two witnesses, Steven

Guy and Lonay Newkirk.

       “[W]here a defendant does not show improper police conduct resulted

in a suggestive identification, suppression is not warranted.” Commonwealth

v. Sanders, 42 A.3d 325, 330 (Pa.Super. 2012). The Commonwealth bears

the burden of establishing “that the totality of the circumstances affecting the

witness’   identification   did   not   involve   a   substantial   likelihood   of

misidentification.”   Commonwealth v. Jones, 426             A.2d 1167, 1170

(Pa.Super. 1981).

      Here, Antwon maintains that because both witnesses were shown a

single photograph of him, he was “subjected to a tainted, unduly suggestive,

improper pretrial identification procedure.” Antwon’s Br. at 17. He cites no

legal authority that would support his argument. However, this Court in Jones

found suppression unwarranted in a nearly identical factual scenario. Jones

involved a gas station robbery. During the robbery, Jones threatened two of

the employees. One of those employees was shown a single photograph to

identify Jones as the assailant. On appeal, Jones argued that showing the

witness a single photograph to identify him as the suspect was improper and

therefore the identification should have been suppressed. We disagreed,

concluding that where the witness knew Jones prior to the crime; viewed Jones

at close range during the robbery; and identified him by name prior to being




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shown the photograph, showing a single photograph was not improper. Id. at

1170-71.

      Similar to Jones, in the instant case both witnesses viewed Antwon

during the shooting and knew him prior to the shooting. Mr. Guy knew Antwon

for approximately two years prior to the shooting, and while he did not know

Antwon by name, he knew that he drove a white Buick LeSabre, had been in

and out of jail, and observed him shooting on the day of the incident. N.T.,

Suppression Hearing, October 14, 2016, at 24, 26. Ms. Newkirk knew Antwon

for five years, knew him by the name of “Rell,” and observed him shooting on

the day of the incident. Id. at 31-32. Showing these witnesses a single

photograph of Antwon was not unduly suggestive and “there was no basis in

law to suppress either the out-of-court or in-court identifications of [Antwon].”

TCO at 5. No relief is due. See Jones, 426 A.2d at 1171.

SUFFICIENCY AND WEIGHT OF THE EVIDENCE

      Our standard of review for a claim challenging the sufficiency of the

evidence is de novo and our scope of review is plenary. See Commonwealth

v. Neysmith, 192 A.3d 184, 189 (Pa.Super. 2018). We view the facts in the

light most favorable to the verdict winner, “giving the prosecution the benefit

of all reasonable inferences to be drawn from the evidence.” Id. (quoting

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).

      Antwon maintains that the evidence was insufficient to establish malice

for third-degree murder. He argues that “the trial testimony clearly

demonstrated, [he] was the only person trying to stop the argument from

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escalating.” Antwon’s Br. at 21. Malice “comprehends not only a particular ill-

will, but every case where there is wickedness of disposition, hardness of

heart, cruelty, recklessness of consequences, and a mind regardless of social

duty, although a particular person may not be intended to be injured.”

Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (quoting

Commonwealth v. Drum, 58 Pa. 9, 15 (1868)).

      It is uncontested that Antwon did not shoot the fatal shot that took the

victim’s life. However, viewing the facts in the light most favorable to the

Commonwealth, “[t]he evidence . . . established that [Antwon] voluntarily and

with malicious intent engaged in a shootout outside of Buffy’s and that, as a

result of that shootout, the victim was shot in the neck, which caused the

victim’s death.” TCO at 8. While Antwon argues that the evidence shows that

he was trying to deescalate the argument, the testimony was clear that he

was the first to pull “out a semiautomatic handgun and fire approximately 15

shots at Palmer” and in return Palmer and three of his friends fired in Antwon’s

direction which resulted in the victim being shot in the back. Id. at 7-8; see

also N.T., Trial, May 16, 2017, at 110-11; 117-19; 120-22. The evidence was

sufficient to prove that Antwon’s actions were malicious even though he may

not have intended harm towards the victim. See Packer, 168 A.3d at 168;

see also Commonwealth v. Gaynor, 648 A.2d 295, 299 (Pa. 1994)

(concluding death of victims could be attributed to defendant based on

transferred intent even though his bullets did not murder or wound the




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victims).2 Similarly, the above evidence rebuts Antwon’s argument that the

verdicts were against the weight of the evidence.

       We review a weight claim for an abuse of discretion. Commonwealth

v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017). “[A] defendant must

prove the evidence is ‘so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.’” Id. (quoting Commonwealth v. Mucci, 143

A.3d 399, 411 (Pa.Super. 2016)).

       Here, the evidence was consistent that Antwon began the shootout and

that it resulted in the victim being shot in her back. We find no abuse of

discretion by the trial court in concluding that the evidence was not “so

tenuous, vague and uncertain” as to shock the conscience of the court.

Windslowe, 158 A.3d at 712.

SELF-DEFENSE/DEFENSE OF OTHERS

       Last, Antwon maintains that “the Commonwealth failed to disprove that

[he] acted in self-defense or defense of others.” Antwon’s Br. at 20. A

defendant bears “no burden to prove self-defense.” Commonwealth v.

Mouzon, 53 A.3d 738, 740 (Pa. 2012). Rather, the Commonwealth bears the

burden to disprove the defendant’s claim of self-defense or defense of others

beyond a reasonable doubt. See Commonwealth v. Hornberger, 74 A.3d

____________________________________________


2 “The transferred intent theory provides that if the intent to commit a crime
exists, this intent can be transferred for the purpose of finding the intent
element of another crime.” Commonwealth v. Thompson, 739 A.2d 1023,
1029-30 (Pa. 1999) (quoting Commonwealth v. Gibbs, 626 A.2d 133, 138
(Pa. 1993)).

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279, 283 (Pa.Super. 2013). The Commonwealth sustains this burden by

proving one of the following: “1) the accused did not reasonably believe that

he was in danger of death or serious bodily injury; or 2) the accused provoked

or continued the use of force; or 3) the accused had a duty to retreat and the

retreat was possible with complete safety.” Commonwealth v. Smith, 97

A.3d 782, 787 (Pa.Super. 2014) (quoting Commonwealth v. Hammond,

953 A.2d 544, 559 (Pa.Super. 2008)).

      Antwon claims that “[t]he evidence demonstrated that [he] acted in self-

defense and defense of others,” because the evidence showed that “after [he]

defused the situation and Mr. Palmer began to walk away, Mr. Thompson

began to reach for his gun from his hip.” Antwon’s Br. at 20, 21. This is a

mischaracterization of the evidence presented at trial. This portion of

“evidence” that Antwon references comes from a Commonwealth witness,

Millicent Harvey. On cross examination she testified to the following:

      Q [defense counsel]: Now, you also agree that when you were
      watching my client speak to Mr. Thompson, Mr. Thompson kept
      going to his hip; is that correct? Is that what you saw?

      A: I don’t remember him going to his hip until the guy started
      shooting.

                                     ***

      Q [defense counsel]: . . . Being asked the question: Do you know
      if anyone else was shooting besides the first guy that you saw
      shooting?

      A: Yes.

      Q: Do you remember them asking you that?

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     A: Yes.

     Q: Okay. And do you recall giving the answer: I don’t know if the
     bald guy was shooting, but he kept going to his hip when he was
     talking to the first guy shooting. Do you recall telling the police
     that?

     A: Something similar. It wasn’t quite that. When he started
     shooting at him he was going – he was going to his hip, I guess
     to – I assume to get a gun to defend his self.

     Q: But you do agree, though, in that statement what you told the
     police and what you signed was; he kept going to his hip when he
     was talking to the first guy shooting?

     A: No, he wasn’t. I believe he probably was counting money when
     he was talking to the guy, and the guy walked over to him.

     Q: So the second person, the second photograph that we looked
     at, Mr. Thompson, you said he was counting money in his hand;
     is that correct?

     A: I believe he was counting money.

     Q: Okay. Then at some point it appeared that he was going to his
     hip, is that correct?

     A: That’s after the guy started shooting at him. That’s when all
     three of them seem like they were – two of the three started
     shooting right back at him. The bald headed one went to this hip.
     By that time I had dropped down to the floor. So I never actually
     seen him pull out a gun, but I assume that’s what he was going
     for.


N.T., Trial, May 16, 2017, at 282, 283-84.

     Harvey remained immovable in her testimony that Antwon began

shooting first, prior to Thompson moving his hand toward hip area. In

addition, the Commonwealth presented testimony of another participant in



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the shootout, Byron McDonald, that Antwon shot in the direction of Palmer

before McDonald and his two other companions returned fire. Id. at 117-19,

120-22. Therefore, we agree with the trial court that the Commonwealth

refuted Antwon’s self-defense claim because it presented evidence that “the

shootout was started by [Antwon,] who pulled his weapon and began firing,

without provocation, before anyone else produced a weapon.” TCO at 9. Thus,

the above testimony established that Antwon provoked the use of force,

thereby disproving his self-defense claim. See Smith, 97 A.3d at 787. The

same evidence refutes Antwon’s defense of others claim as well. The

Commonwealth’s evidence rebuts all of Antwon’s arguments that he was

trying to deescalate the argument. No relief is due.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/19




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