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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                            :
WILBERT JOHNSON,                            :         No. 1642 WDA 2014
                                            :
                          Appellant         :


            Appeal from the Judgment of Sentence, August 25, 2014,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0015449-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED OCTOBER 14, 2015

        Wilbert Johnson appeals from the judgment of sentence of August 25,

2014, following his conviction of first-degree murder.1 We affirm.

        The trial court provided the following facts of this case:

                    The evidence presented at trial established
              that in the late evening hours of September 21,
              2013, [appellant] was at the Ragtime Bar in
              Homestead, where he was waiting to meet the
              mother of his child, Jalynn Ferrell, to discuss a
              possible    reconciliation     in   their  relationship.
              [Appellant] knew that Ferrell was seeing someone
              else, but told her, earlier that day, that if he could
              not have her, no one would. Also at the Ragtime Bar
              that evening were          Ferrell’s new      boyfriend,
              Edward Joseph     and      his    three   (3)    friends,




* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2502(a).
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              Blaine Smoot, “Sheen”[2] and Qaeed Braxton.
              [Appellant] became aware that Joseph was Ferrell’s
              new boyfriend, and at one point during the evening,
              had Joseph call Ferrell and put him on the phone,
              since Ferrell was not answering [appellant’s] calls.
              At some point thereafter, [appellant] and Braxton
              had a verbal altercation. Though the altercation did
              not involve shouting or fighting, the bar’s owner
              nevertheless broke up the discussion between the
              two men. Braxton and his friends then left the bar,
              on their way to Ferrell’s house to watch a boxing
              match on television. Surveillance video from the bar
              shows [appellant] following them at a fast pace. By
              the time Braxton and his friends reached the end of
              the block, [appellant] had caught up to them and
              retrieved a gun from the car he was driving. The
              car, a grey Volkswagen, belonged to [appellant’s]
              current girlfriend, Karen Clark.        Joseph saw
              [appellant] retrieve the gun and began to run. He
              heard Braxton say “Aw, come on man” and then a
              shot was fired. By the time Joseph returned to the
              scene,    [appellant]   was   gone    and    Braxton
              [(hereinafter “victim”)] was laying (sic) face-down
              on the sidewalk. He was transported by paramedics
              but was later pronounced dead. The cause of death
              was a single gunshot wound to the back, which
              perforated his lung.

Trial court opinion, 1/13/15 at 2-3. The Commonwealth charged appellant

with criminal homicide, terroristic threats, and a violation of the Uniform

Firearms Act.3      The Commonwealth withdrew the Uniform Firearms Act

charge, and the trial court granted appellant’s motion for judgment of

acquittal on one of the terroristic threats charges.        (Notes of testimony,

8/19/14 at 248.) At the conclusion of a jury trial, the jury found appellant


2
    After a review of the record, “Sheen’s” identity is unclear.
3
    18 Pa.C.S.A. §§ 2501, 2706(a)(1), and 6105(a)(1), respectively.


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guilty of first-degree murder and acquitted him of the other terroristic

threats charge.     On August 25, 2014, appellant was sentenced to life

imprisonment without the possibility of parole.         (Notes of testimony,

sentencing hearing, 8/25/14 at 14.) The trial court denied appellant’s post-

sentence motions on September 9, 2014.        Appellant then filed a notice of

appeal and the trial court filed an opinion on January 13, 2015.

      Appellant raises the following issues for our review:

            1.     Did the trial court err in denying [appellant’s]
                   request to admit certain evidence at trial,
                   specifically, the prior criminal convictions of
                   the [decedent] for the purpose of showing the
                   decedent’s propensity for violence and acting
                   as the aggressor?

            2.     Was the evidence sufficient to demonstrate
                   that [appellant] was acting in self-defense?

            3.     Was the verdict against the weight of the
                   evidence?

Appellant’s brief at 3.

      The first issue appellant raises for our review is whether the trial court

erred in refusing to admit certain evidence regarding the victim’s criminal

history as part of appellant’s self-defense claim.       When claiming self-

defense, a defendant is permitted to introduce evidence of the victim’s

criminal history to either prove that the defendant was in reasonable fear of

the victim because the defendant had knowledge of the victim’s violent

tendencies, or to prove that the victim was acting in conformance with those

violent tendencies and was the aggressor in the altercation in question.


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Commonwealth v. Beck, 402 A.2d 1371, 1373 (Pa. 1979), quoting

Commonwealth v. Amos, 284 A.2d 748, 750 (Pa. 1971). The Beck court

also stated that a defendant was not required to have prior knowledge of

the victim’s criminal conviction in order to introduce the conviction into

evidence. Beck, 402 A.2d at 1373.

      This court further clarified our supreme court’s holdings in Beck and

Amos by stating that,

            [P]rior convictions involving aggression by a victim
            of a homicide may be introduced into evidence by an
            accused where self-defense is asserted to . . . prove
            the allegedly violent propensities of the victim to
            show that the victim was in fact the aggressor. . . .
            [T]he defendant need not have knowledge of a
            victim’s criminal conviction in order to introduce the
            prior conviction to show the aggressive propensities
            of the victim.

Commonwealth v. McClain, 587 A.2d 798, 802 (Pa.Super. 1991)

(emphasis in the original) (citations omitted).

      In the instant case, appellant claims that the trial court erred when it

did not admit evidence of the victim’s prior convictions into evidence on the

grounds that appellant had no prior knowledge of the victim’s criminal record

or previous convictions.   Appellant is correct in that the trial court erred

when it denied his motion to introduce evidence of the victim’s prior

convictions. However, at no point throughout the record or in his brief does




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appellant disclose the crime of which the victim was allegedly convicted.4

The only reference in the record to the victim’s criminal history came in the

form of an oral motion at the close of the Commonwealth’s case-in-chief:

            [Defense counsel]:     Just to put on the record one
            last thing.

            The Court: Sure.

            [Defense counsel]: The request to admit certain
            prior convictions of the victim, Mr. Braxton, in this
            case, as the aggressor in this matter.       It’s my
            understanding that the Court is going to make a
            ruling as to that.

            The Court: Yes, I will. Since the Defendant so far as
            I know did not know of any prior record, I will not
            allow that to be admitted.

Notes of testimony, 8/19/14 at 252.

      This discussion is the extent of any record of prior conviction evidence

and is insufficient for our review. As a result of appellant’s failure to disclose

the nature of the victim’s conviction, appellant has failed to show that he

was prejudiced by the trial court’s error.    Therefore, we find that the trial

court’s denial of evidence of the victim’s prior convictions amounted to

harmless error. The harmless error standard is as follows:

                  [The Pennsylvania Supreme Court] has stated
            that an error may be harmless where the properly
            admitted evidence of guilt is so overwhelming and

4
  We do note that in its opinion, the trial court refers to the victim’s prior
convictions for simple assault and terroristic threats; however, the trial court
also notes, as we do here, that appellant failed to articulate these
convictions at any point throughout the trial transcript or his concise
statement of errors. (Trial court opinion, 1/13/15 at 8.)


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           the prejudicial effect of the error is so insignificant by
           comparison that it is clear beyond a reasonable
           doubt that the error could not have contributed to
           the verdict. Under this approach, a reviewing court
           first determines whether the untainted evidence,
           considered independently of the tainted evidence,
           overwhelmingly establishes the defendant’s guilt. If
           “honest, fair minded jurors might very well have
           brought in not-guilty verdicts,” an error cannot be
           harmless on the basis of overwhelming evidence.
           Once the court determines that the evidence of guilt
           is overwhelming, it then decides if the error was so
           insignificant by comparison that it could not have
           contributed to the verdict. We have cautioned that:

                        A conclusion that the properly
                 admitted evidence is ‘so overwhelming’
                 and the prejudicial effect of the . . . error
                 is ‘so insignificant’ by comparison, that it
                 is clear beyond a reasonable doubt that
                 the error is harmless, is not to be arrived
                 at lightly.

                 Accordingly, we have been reluctant to find an
           error harmless on the basis of overwhelming
           evidence.

                 In applying the harmless error analysis in a
           particular case, it is imperative that the burden of
           establishing that the error is harmless beyond a
           reasonable doubt rests with the Commonwealth.

Commonwealth v. Drummond, 775 A.2d 849, 853 (Pa.Super. 2001),

quoting Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994).

     As this court articulated in Drummond, we do not undertake the

finding of harmless error lightly; however, the evidence that appellant acted

as the aggressor in this case is overwhelming.        After the victim and his

friends left the Ragtime Bar, appellant ran after them, went to his car, took



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out a gun, and fatally shot the victim in the back as he was running away.5

Considering these facts cast in a light favorable to the Commonwealth, the

victim did not act as the aggressor, and the failure of the trial court to admit

any of the victim’s previous convictions was so insignificant that it did not

cause appellant any prejudice.

      Therefore, we find that the trial court committed harmless error when

it denied defense counsel’s motion to admit evidence of the victim’s prior

convictions and did not err when it denied appellant a new trial.

      We now address appellant’s sufficiency of the evidence claim.

                  In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to see whether there is sufficient evidence to
            enable [the fact finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of evidence links the accused to the
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, this Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.



5
  Smoot testified that upon realization that appellant had a gun, all four
members of their group started running away; this testimony was
corroborated by forensic evidence which indicated that the victim was shot in
the back. (Notes of testimony, 8/18/14 at 45, 112.)


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Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).

                    Moreover, in applying the above test, the
             entire record must be evaluated and all evidence
             actually received must be considered. Finally, the
             finder 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. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted).

      The credibility and weight of the evidence are both matters that are in

the sole purview of the jury. Specifically, when considering whether or not

the evidence was sufficient to prove each element of each charge beyond a

reasonable doubt, we cannot assume the task of weighing evidence and

making independent conclusions of fact.       Commonwealth v. Lewis, 911

A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding

[an appellant’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.” Id.

      When     a   defendant   claims   self-defense,   the   burden   is   on   the

Commonwealth to disprove the defendant’s claim beyond a reasonable

doubt.   Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012)

(citations omitted).   For this reason, we shall review the sufficiency of the

evidence not only for the first-degree murder conviction, but also to




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determine whether the Commonwealth met its burden in disproving

appellant’s self-defense claim.

      We shall first review the first-degree murder conviction.         After

reviewing the evidence presented cast in the light most favorable to the

Commonwealth, as verdict winner, we find that the evidence is sufficient to

warrant the jury’s conviction for first-degree murder. First-degree murder is

defined as a criminal homicide that is “committed by an intentional killing.”

18 Pa.C.S.A. § 2502(a). The statute defines “intentional killing” as “killing

by means of poison, or by lying in wait, or by any other kind of willful,

deliberate and premeditated killing.” 18 Pa.C.S.A. § 2502(d).

      In order for an individual to be convicted of first-degree murder, the

Commonwealth must prove the following beyond a reasonable doubt:

(1) that a human being was unlawfully killed; (2) that the defendant

perpetrated the killing; and (3) that the defendant did so with “malice and a

specific intent to kill.” Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa.

2014).

      In the instant case, the Commonwealth has met its burden of proving

all three elements of first-degree murder beyond a reasonable doubt. First,

the Commonwealth proved that the victim was killed unlawfully through the

testimony of Kenneth Clark, a forensic pathologist in Allegheny County.

Dr. Clark conducted an autopsy on the victim, and determined his death to

be caused by a homicide.          (Notes of testimony, 8/18/14 at 108, 113.)



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Second, for the reasons discussed supra, the Commonwealth proved

beyond a reasonable doubt that appellant perpetrated the killing.     Finally,

the Commonwealth also proved beyond a reasonable doubt that appellant

not only perpetrated the killing, but did so with the specific intent to kill.

Despite the fact that appellant claims self-defense, the forensic evidence

indicates that he shot the victim in the back.     (Id. at 112.)   Eyewitness

testimony also indicated that when Smoot noticed that appellant was getting

a gun out of his car, Smoot, Joseph, “Sheen,” and the victim all attempted

to run away.    (Id. at 45.)    While not necessary to obtain a first-degree

murder conviction,6 the Commonwealth also established motive with

testimony of the argument in the bar between appellant and the victim and

the fact that Joseph was dating appellant’s ex-girlfriend.

      Taking this evidence in the light most favorable to the Commonwealth,

as verdict-winner, we find that the Commonwealth has satisfied its burden of

proving first-degree murder beyond a reasonable doubt, and that the jury’s

guilty verdict is fully supported by the evidence, and accordingly cannot be

disturbed.

      We now turn to appellant’s self-defense claim.         In order for a

defendant to successfully claim self-defense, he or she must meet the

following three elements:      (1) the defendant reasonably believed that he


6
  See Commonwealth v. Zimmerman, 504 A.2d 1329, 1335 n. 4
(Pa.Super. 1986) (stating that the Commonwealth need not prove motive in
order to obtain a conviction for first-degree murder).


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was in imminent danger of death or serious bodily injury and that the use of

deadly force was necessary to prevent such harm; (2) the defendant did not

provoke the incident which resulted in the victim’s death; and (3) the

defendant did not violate any duty to retreat. Commonwealth v. Mouzon,

53 A.3d 738, 740 (Pa. 2012) (citations omitted). As previously noted, the

Commonwealth has the burden of disproving self-defense beyond a

reasonable doubt, and may do so by disproving any one of the three

self-defense elements the defendant must meet. Id. at 740-741.

     Here, we only need to address the second factor as discussed in

Mouzon:    whether appellant was at fault in provoking the incident that

resulted in the victim’s death. We find that the Commonwealth has proven

beyond a reasonable doubt that appellant was the aggressor in this case,

and therefore his self-defense claim must fail.   Appellant claimed that the

victim was the initial aggressor after appellant left the Ragtime Bar. (Notes

of testimony, 8/19/14 at 229.) The Commonwealth, however, was able to

disprove this beyond a reasonable doubt. In addition to Smoot’s testimony

that appellant chased the victim and his friends down the street from the

bar, appellant admitted to the police that he did not see anyone (the victim,

Joseph, Smoot, or “Sheen”) have any firearms or other types of weapons in

their possession. (Id.)




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      For these reasons, we find that the Commonwealth has met its burden

of disproving appellant’s self-defense claim beyond a reasonable doubt, and

that the evidence fully supports the jury’s guilty verdict.

      Finally, appellant asks us to consider whether the weight of the

evidence supports his conviction for first-degree murder.      Our standard of

review for considering the weight of the evidence is as follows:

                   An appellate court’s standard of review when
            presented with a weight of the evidence claim is
            distinct from the standard of review applied by the
            trial court:

                         Appellate review of a weight claim
                  is a review of the exercise of discretion,
                  not of the underlying question of whether
                  the verdict is against the weight of the
                  evidence. Because the trial judge has
                  had the opportunity to hear and see the
                  evidence presented, an appellate court
                  will give the gravest consideration to the
                  findings and reasons advanced by the
                  trial judge when reviewing the trial
                  court’s determination that the verdict is
                  against the weight of the evidence. One
                  of the least assailable reasons for
                  granting or denying a new trial is the
                  lower court’s conviction that the verdict
                  was or was not against the weight of the
                  evidence and that a new trial should be
                  granted in the interest of justice.

                  This does not mean that the exercise of
            discretion by the trial court in granting or denying a
            motion for a new trial based on a challenge to the
            weight of the evidence is unfettered. In describing
            the limits of a trial court’s discretion, we have
            explained:




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                       The term “discretion” imports the
                 exercise of judgment, wisdom and skill
                 so as to reach a dispassionate conclusion
                 within the framework of the law, and is
                 not exercised for the purpose of giving
                 effect to the will of the judge. Discretion
                 must be exercised on the foundation of
                 reason, as opposed to prejudice,
                 personal motivations, caprice or arbitrary
                 actions. Discretion is abused where the
                 course pursued represents not merely an
                 error in judgment, but where the
                 judgment is manifestly unreasonable or
                 where the law is not applied or where the
                 record shows that the action is a result of
                 partiality, prejudice, bias, or ill will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted).

     Appellant’s weight of the evidence argument is grounded in two

separate theories:    that the jury gave too much weight to Smoot’s

eyewitness testimony of the encounter between appellant and the victim

outside the Ragtime Bar and that the jury did not give enough weight to

Dr. Clark’s testimony that the victim had ingested cocaine and alcohol near

the time of his encounter with appellant.     (Appellant’s brief at 14.)   In

declining to find that the conviction was against the weight of the evidence,

the trial court found the verdict reached was not so contrary to the evidence

as to shock one’s conscience or render the verdict inappropriate. (Trial court

opinion, 1/13/15 at 7.) We find no abuse of discretion in such a conclusion

and therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2015




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