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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
JESSE LEWIS,                              :          No. 985 WDA 2013
                                          :
                         Appellant        :


           Appeal from the Judgment of Sentence, May 29, 2013,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0013110-2011


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 05, 2015

      Jesse Lewis appeals from the judgment of sentence entered on

May 29, 2013, in the Court of Common Pleas of Allegheny County.

      The facts, as aptly summarized by the trial court, are as follows.

                   Office[r] Matthew McCarthy testified that he
            was on duty on March 17, 2011 when he was
            dispatched to 255 East Ohio Street on a report of
            four or five individuals fighting.      While he was
            en route, he heard two gunshots. Upon arrival, at
            approximately 2:50 a.m., he observed the victim,
            Lakisha Robinson [“the victim”], lying on the street,
            surrounded by two females who were crying and
            yelling. [The victim] was pronounced dead at the
            scene shortly thereafter.       Officer McCarthy also
            encountered the second victim, Richard Edge, at the
            scene. Edge had a bullet wound to his left elbow.
            Edge initially refused medical attention and was
            unwilling to identify his shooter.

                   Nicole Orwik, [the victim’s] best friend,
            testified that on March 17, 2011, she and two friends


* Allen, J. did not participate in the consideration or decision of this case.
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          ([the victim] and Patrice “Trice” Hammond) went to
          Peanutz, a local bar, at around 11:30 p.m. Orwik
          stated that she saw two men that she knew in the
          bar: Edge, whom she called “RJ,” and Appellant,
          Jesse Lewis, whom she referred to as “Little Man.”
          Orwik said that she had known Appellant for twelve
          years and that he was friends with her baby’s father.
          [The victim] and Orwik eventually left the bar and
          returned to [the victim’s] apartment. A short time
          later, [the victim] left the apartment to check on
          Hammond. When [the victim] did not return after
          ten to fifteen minutes, Orwik stepped out of [the
          victim’s] dwelling and saw [the victim] fighting.

                 Orwik testified that [the victim] fought with
          Sakisha Morant. . . Morant and Appellant have a
          child together. Orwik broke up the fight but Morant
          and [the victim] continued to argue. Orwik testified
          that she then saw [the victim] walk up the sta[i]rs
          toward them and heard a shot shortly thereafter.
          Orwik attempted to leave the area with [the victim],
          but [the victim] collapsed, at which point Orwik
          became aware that [the victim] had been shot.

                Footage from two surveillance cameras was
          introduced as evidence. During Orwik’s testimony,
          she identified Appellant on the video recording as
          wearing a white shirt with stripes. She also pointed
          out on the video Appellant’s extended hand holding
          an object and testified that is where the gunfire
          came from. Orwik testified that the individual seen
          on the video running away and throwing a gun was
          Appellant.

                 Richard Edge testified that he didn’t remember
          seeing Appellant in the bar that night. Edge said he
          tried to break up a fight outside of the bar between
          Hammond and a woman named Lexie. [The victim]
          and Morant entered the melee and while Edge was
          trying to restore order, he heard two shots. After
          Edge heard the first shot, he turned and ran but was
          hit in the arm with the second shot as he was
          running away. Edge testified that he did not see
          who shot him. Edge said that the person in the


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            video in the white muscle shirt (the same person
            identified by Orwik) holding the gun shot him. Upon
            further review of the video, Edge testified that the
            same person who had shot him had jumped on his
            back earlier during the fight. At the time, Edge
            thought that the person on his back was a woman.
            Edge pushed the person in the muscle shirt away, as
            seen on the video.        Both Edge and his brother
            Demitrius Edge identified Appellant from a photo
            array. Hammond also identified Appellant as the
            individual in the white t-shirt.

                  Derrick Cabel testified that he did not see any
            shots fired on March 17, 2011. However, he stated
            that he gave a recorded statement to the police
            contemporaneous to the incident describing what he
            observed. Officer James Smith later testified he
            interviewed Cabel and recorded his statement. In
            the interview, Cabel stated that after he heard the
            second shot, he looked over a wall he was hiding
            behind and saw Appellant with a gun pointed at
            Edge.

                   Sergeant Christina Davison responded to the
            dispatch call of shots fired in the area. As she was
            arriving at the scene, a short male in a white t-shirt
            and dark pants ran directly in front of her vehicle
            away from the area where the shots were fired.
            Sergeant Davison identified Appellant as that
            individual. She further stated that Appellant and the
            individual in the video were consistent in stature and
            clothing.

                   Officer Adam Nida testified that Appellant gave
            him the name of Darryl Strong when he was later
            arrested on an unrelated outstanding warrant.
            Forensic pathologist Dr. Abdulrezak Shakir testified
            that the cause of death of [the victim] was a gunshot
            wound to the trunk and the manner of death was
            classified as a homicide.

Trial court opinion, 4/7/14 at 3-6 (footnote omitted).




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      Appellant was charged with one count each of criminal homicide,

criminal attempt (homicide), aggravated assault, person not to possess a

firearm, and carrying a loaded weapon.        Appellant was also charged with

three counts of recklessly endangering another person (“REAP”); however,

two counts of REAP were later withdrawn.        Pursuant to an oral motion by

defense counsel, Elbert Gray, Esq., the charge of possession of a firearm

was severed to be tried non-jury concurrently. A jury trial commenced on

February 4, 2013, and on February 28, 2013, appellant was found guilty of

all charges.    Appellant was sentenced to life imprisonment for first-degree

murder with a consecutive period of 26 to 52 years on the remaining

charges. At the conclusion of the sentencing hearing, Attorney Gray orally

motioned to withdraw as counsel; the motion was granted and new counsel

was appointed.

      Appellant’s post-sentence motions were denied on May 29, 2013. This

appeal followed. The following claims have been presented on appeal:

               1.   Whether there was insufficient evidence to
                    prove     first-degree      murder    when the
                    Commonwealth failed to prove that there was
                    a specific intent to kill the victim?

               2.   Whether the trial court abused its discretion in
                    overruling an objection to the testimony of
                    Officer McCarthy concerning the speculative
                    reasoning of Richard Edge’s answers to the
                    officer’s questions?

               3.   Whether the non-jury trial was properly
                    conducted when Appellant never knowingly,
                    intelligently and voluntarily waived his right to


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                   a jury trial concerning the charge of persons
                   not to possess a firearm?

Appellant’s brief at 5.1

      The first issue presented challenges the sufficiency of the evidence to

support the conviction of first-degree murder.         Appellant argues the

Commonwealth failed to prove specific intent to kill. (Id. at 15.)

            The standard we apply in reviewing the sufficiency of
            the evidence is whether 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 [that of] 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.




1
  Additional issues presented in appellant’s concise statement of matters
complained of on appeal have been abandoned.


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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa.Super. 2011)

(en banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-

806 (Pa.Super. 2008).

      First-degree murder is an intentional killing, i.e., a “willful, deliberate

and premeditated killing.” 18 Pa.C.S.A. § 2502(a) and (d). Specific intent

to kill as well as malice can be inferred from the use of a deadly weapon

upon a vital part of the victim’s body. Commonwealth v. Briggs, 12 A.3d

291, 342-343 (Pa. 2011). Pursuant to the doctrine of transferred intent, the

intent to murder may be transferred where the person actually killed is not

the intended victim. 18 Pa.C.S.A. § 303(b)(1).

      Reviewing    the   record   in   the   light   most   favorable     to   the

Commonwealth, as opposed to the facts appellant argues in his brief, we

find the Commonwealth clearly established specific intent.       Appellant was

identified in the fight on a surveillance video. Appellant was thrown off of

Edge’s back and seen using his hand to mimic firing a shot. Appellant then

briefly left the area, returning moments later with a firearm.          Witnesses

identified appellant as pointing a gun at Edge, approaching Edge, and

shooting at him. The victim, who was in the immediate vicinity, was shot in

the abdomen, a vital part of her body, and this wound caused her death.

Briggs, supra at 307. The evidence establishes appellant’s specific intent

to kill.   Commonwealth v. Devine, 750 A.2d 899 (Pa.Super. 2000)

(Devine’s errant bullet killed a 15-year-old boy as he conducted a shootout



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with two men he admitted to wanting to kill); Commonwealth v. Jones,

610 A.2d 931 (Pa. 1992) (Jones and two companions missed intended victim

with 20 shots, but were liable after killing two individuals, including a

seven-year-old boy and injuring six others).            Thus, the evidence supports

the jury’s finding that appellant formed a specific intent to kill and, thus, is

guilty of first-degree murder.

        Next,   appellant   claims     that   the   trial   court   erred   by    allowing

Officer Matthew McCarthy to testify that Edge would not tell the officer who

had shot him. (Appellant’s brief at 23.) We agree with the Commonwealth

that the officer’s response that Edge “just wouldn’t tell [him]” who shot him

is not necessarily an opinion as to whether Edge knew the identity of the

shooter.    (Commonwealth’s brief at 12.)              Such a statement “does not

necessarily imply that Edge knew or [did not] know [the shooter’s] identity.”

(Id.)      As    the   trial   court    observed,      it   was     established    during

cross-examination that Officer McCarthy was not testifying that Edge did not

actually refuse to identify the shooter, but that it was the officer’s

impression that Edge was reluctant to cooperate with the police. (Trial court

opinion, 4/7/14 at 8.) Moreover, such error was harmless as appellant does

not dispute that he shot Edge, and both Edge and his brother identified

appellant as the shooter from a photo array.                 See Commonwealth v.

Atkinson, 987 A.2d 743, 751-752 (Pa.Super. 2009) (harmless error exists

when “the error did not prejudice the defendant or the prejudice was



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de minimus”). Thus, no prejudice resulted from the officer’s statement on

direct examination.

      In his final issue, appellant contends that he did not validly waive his

right to a jury, and therefore, the court was without jurisdiction to determine

his guilt of persons not to possess a firearm. (Appellant’s brief at 26.) This

claim is waived as appellant did not present this challenge during trial.

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).      See Commonwealth v.

O’Donnell, 740 A.2d 198, 207 (Pa. 1999) (only under capital relaxed wavier

policy may the issue of an inadequate jury trial colloquy be reached for the

first time on appeal); Commonwealth v. Gribble, 863 A.2d 455, 469 (Pa.

2004) (“The Commonwealth correctly notes that neither O’Donnell nor

appellant objected to the wavier colloquy at the penalty hearing, and that

each therefore waived any direct challenge to its sufficiency . . . The

Commonwealth also correctly notes that O’Donnell prevailed upon her

waived claim on direct appeal only because she enjoyed the benefits of the

then-available ‘relaxed waiver’ rule.”).

      Judgment of sentence affirmed.



Allen, J. did not participate in the consideration or decision of this case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2015




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