J-S15015-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

LAVELL WYNDER

                         Appellant                   No. 306 EDA 2016


         Appeal from the Judgment of Sentence November 4, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004528-2014


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED April 25, 2017

      Lavell Wynder appeals from the judgment of sentence of life

imprisonment that the trial court imposed after a jury convicted him of first

degree murder, possession of an instrument of crime (“PIC”), carrying a

firearm without a license, and carrying a firearm in Philadelphia. We affirm.

      On March 22, 2013, at approximately 11:00 p.m., Appellant shot

Aaron Cole five times outside of the 22nd Street Café, a small neighborhood

bar in Philadelphia where both men had reveled earlier that night. Mr. Cole

died from his wounds two days later.     Appellant does not contest that he

shot Mr. Cole in front of the bar, he simply challenges the weight and

sufficiency of the Commonwealth’s evidence regarding mens rea.
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       During the ensuing three-day jury trial, the Commonwealth presented

a 12-minute video of the shooting compiled by Philadelphia Police Detective

James Dunlap, a member of the police department’s Digital Imaging Video

Response Team (“DIVRT”).               Detective Dunlap explained that he used

computer software to splice the compilation from footage of three different

video surveillance cameras.           Two cameras overlooked the interior and

exterior of the 22nd Street Café and the third camera was perched on the

outside of the Duran Grocery on 1267 South 22nd Street. Detective Dunlap

testified, “basically, there was a target that was identified [as Appellant] and

we follow his movements from the 12 minutes leading up to the incident. So

we are going to follow him from camera to camera.” N.T., 11/3/15, at 69.

Detective Duncan provided narrative testimony as the jury viewed the entire

montage.1

       The video begins with Appellant standing outside of the 22 nd Street

Café in a blue two-tone jacket, a knit cap, and dark pants. Id. at 71-72. He

remained in front of the establishment for approximately one minute, before

reentering the bar for another one-and-one-half minutes, and then returned

to his post in front of the business. Id. at 72-74. He stayed positioned in

front of the entrance for an additional eight minutes while bar patrons

____________________________________________


1
 Portions of the video were replayed for subsequent witnesses, who testified
about specific segments of the recording or still images.



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arrived and departed. Id. 76-77. As Mr. Cole and Orondae Andrews exited

the bar, Appellant approached them, and, following a brief exchange,

Messrs. Cole and Andrews proceeded northbound on 22nd Street. Id. at 77-

78. The trial court succinctly summarized the remaining events as follows:

      Appellant appears to retrieve an object (presumably a gun) from
      his waistband, extend his right arm in the direction of [Mr. Cole],
      and fire multiple shots, causing [Mr. Cole] to fall to the ground.
      Appellant then walks toward [Mr. Cole] and shoots him again.
      Muzzle flashes are clearly visible and can be seen coming from
      the right sleeve of Appellant's blue puffy jacket. [Mr.] Andrews
      flees the scene first, followed by Appellant a few seconds later.

Trial Court Opinion, 5/10/16, at 3 (citations omitted).

      Additional witnesses testified about the ballistic evidence and medical

evidence regarding cause of death and the location of the three bullet

wounds to Mr. Cole’s head and one each to his chest and back.          Several

police detectives detailed the subsequent investigation and Appellant’s

ultimate apprehension one year later.      The Commonwealth also presented

signed, written statements submitted to the Police Detectives by Kimberly

Glover, Appellant’s girlfriend, who had accompanied him to the bar on the

night of the murder, and Lucille Wynder, Appellant’s mother.       Both of the

women stated that Appellant had confessed to them that he killed Mr. Cole,

and each woman’s statement was admitted to impeach her respective in-

court testimony that she never discussed the incident with Appellant.

Similarly, Mr. Andrews submitted a statement that indicated he was familiar

with Appellant and identified him as the assailant wearing the blue jacket in

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the surveillance video.     When Mr. Andrews proved to be an uncooperative

witness   during   trial,   the   Commonwealth   utilized   his   statement   as

impeachment evidence.

      Appellant did not present a defense. The jury convicted him of first-

degree murder, PIC, and two violations of the Uniform Firearms Act

(“VUFA”). Immediately after the trial, the court imposed life imprisonment

for murder and a concurrent term of three to six years incarceration for

carrying a firearm without a license. No further penalty was imposed on PIC

and the remaining VUFA violation. This timely appeal followed the denial of

Appellant’s post-sentence motion which challenged, inter alia, the weight of

the evidence.

      Appellant presents two questions for review:

      I.    Is . . . Appellant entitled to an arrest of judgment on the
      charge of murder in the first degree where there was insufficient
      evidence to establish specific intent to kill or premeditation?

      II.   Is . . . Appellant entitled to a new trial on the charges of
      murder in the first degree, and related charges where the
      greater weight of the evidence did not support the verdict in that
      the greater weight would not have supported a finding of specific
      intent to kill, nor premeditation?

Appellant’s brief at 3.

      Generally, “[o]ur standard when reviewing the sufficiency of the

evidence is whether the evidence at trial, and reasonable inferences derived

therefrom, when viewed in the light most favorable to the Commonwealth as

verdict winner, are sufficient to establish all elements of the offense beyond

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a reasonable doubt.” Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa.

Super. 2006).    The Commonwealth may satisfy its burden of proof based

entirely on circumstantial evidence.     Commonwealth v. Laird, 988 A.2d

618, 624 (Pa. 2010).      “[A]ny doubt about the defendant’s guilt is to be

resolved by the fact finder unless the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113

(Pa.Super. 2013) (en banc).

      The elements of first degree murder are as follows: “In order to

sustain a finding of first degree murder, the evidence must establish that (1)

a human being was unlawfully killed; (2) the person accused is responsible

for the killing; and (3) the accused acted with malice and a specific intent to

kill.” Commonwealth v. Mitchell, 902 A.2d 430, 444 (Pa. 2006); 18

Pa.C.S. § 2502(a). The crux of Appellant’s first argument is that, while the

Commonwealth’s evidence established that he was responsible for killing Mr.

Cole following a brief exchange on the street, the Commonwealth failed to

adduce sufficient evidence to prove beyond a reasonable doubt that he acted

with premeditation or a specific intent to kill.

      As it relates to this issue, our High Court explained, “An intentional

killing is a ‘killing by means of poison, or by lying in wait, or by any other

kind of willful, deliberate and premeditated killing.’” Id. (quoting 18 Pa.C.S.

§ 2502(d)). In Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013)

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(quoting Commonwealth v. Drumheller, 808 A.2d 893, 910 (Pa. 2002)),

the High Court further explained, “[p]remeditation and deliberation exist

whenever the assailant possesses the conscious purpose to bring about

death.” Furthermore, “the design to kill can be formulated in a fraction of a

second.” Id.   Finally, both specific intent and malice may be established

through circumstantial evidence, such as the use of a deadly weapon on a

vital part of the victim’s body. Commonwealth v. Houser, 18 A.3d 1128,

1134 (Pa. 2011). As we reiterated in Commonwealth v. Matthews, 870

A.2d 924, 929 (Pa.Super. 2006) (citations omitted), “As intent is a

subjective frame of mind, it is of necessity difficult of direct proof.

Accordingly, we recognize that ‘[i]ntent can be proven by direct or

circumstantial evidence; it may be inferred from acts or conduct or from the

attendant circumstances.’”

      Viewing the evidence in a light most favorable to the Commonwealth,

we find sufficient evidence of Appellant’s premeditation and specific intent to

kill Mr. Cole to sustain the first degree murder conviction. Specifically, the

Commonwealth established that Appellant lay in wait for his victim outside of

the entrance to the 22nd Street Café for approximately ten minutes. When

Mr. Cole emerged from the bar, Appellant immediately engaged him, and as

Cole continued to walk away, Appellant surreptitiously removed a firearm

from the waistband of his pants, leveled it at Mr. Cole, and opened fire. As




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Mr. Cole struggled on the sidewalk, Appellant approached him and continued

shooting. Altogether, Appellant shot Mr. Cole five times.

      As it relates to premeditation, the foregoing evidence established that

Appellant’s measured purpose in waiting outside of the bar was to ensnare

Mr. Cole under the pretext of conversation and then shoot him.                    Stated

another way, Appellant ambushed Mr. Cole.              Hence, we conclude that the

Commonwealth presented sufficient evidence of to prove Appellant’s

premeditation and deliberation, i.e., “the conscious purpose to bring about

death,”   beyond     a    reasonable   doubt.    Drumheller,        supra    at    910.

Commonwealth v. Groff, 514 A.2d 1382 (Pa.Super. 1986) (defendant's

preparation, lying in wait, and entering victim's house with loaded weapon

were evidence of premeditation and proof of his intent to kill victim).

      Likewise, regarding Appellant’s specific intent, the certified record

confirms that Appellant fired multiple gunshots at Mr. Cole’s head and one

shot each to his back and chest.        All of the bullet wounds impacted vital

areas of the victim’s body, and three wounds were independently capable of

causing death.       N.T., 11/4/15, at 9-11.           This evidence sustains the

Commonwealth’s burden of proving that Appellant acted with a specific

intent to kill. Houser, supra at 1134 (fact-finder may infer specific intent

to kill victim based on defendant's use of deadly weapon upon vital part of

victim's body); Commonwealth v. Smith, 985 A.2d 886, 896 (Pa. 2009)

(seven    separate       gunshot   wounds     evince     specific   intent   to    kill);

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Commonwealth v. Mattison, 82 A.3d 386, 392-293 (Pa. 2013) (head is

vital part of body); Commonwealth v. Hanible, 836 A.2d 36, 38 (Pa.

2003) (chest is vital part of body).

         Finally, we observe that the underpinnings of Appellant’s argument in

favor of an arrest of judgment are faulty. Appellant’s contentions are based

on the dual implications that: (1) he had a benign reason to loiter outside of

the bar other than lying in wait to ambush Mr. Cole; and (2) the shooting

was entirely spontaneous.       These arguments fail for at least two reasons.

First,    Appellant’s   positions   flout    the    evidentiary   deference   for   the

Commonwealth’s evidence as the verdict winner that we outlined supra, and

second, ignores the ensconced legal tenet that “the design to kill can be

formulated in a fraction of a second.”            Jordan, supra at 323. Hence, no

relief is due.

         Having found that the Commonwealth offered sufficient evidence to

satisfy its burden of proving the elements of first degree murder, we next

address his challenge to the weight of the evidence. Once again, Appellant

assails the Commonwealth’s evidence regarding his mens rea. Essentially,

Appellant complains that, based on the evidence presented during the trial,

the jury was required to “engage in speculation, conjecture and surmise in

order to determine that [he] . . . acted with premeditation and specific intent

to kill[.]”   Appellant’s brief at 14.      Stressing the principle that, whenever

“evidence offered to support a verdict of guilt is so unreliable and/or

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contradictory as to make any verdict based thereon pure conjecture, a jury

cannot be permitted to return such a finding[,]’’ Appellant asserts that the

trial   court   erred   in   rejecting   his   request   for   a   new   trial.   See

Commonwealth v. Karkaria, 625 A.2d 1167, 1170 (Pa. 1993).                          We

disagree.

        The trial court’s belief that the verdict is not against the weight of the

evidence and that a new trial is not warranted in the interest of justice is one

of the least assailable reasons for a trial court to deny a new trial.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).                       It is well-

established that appellate review of a weight claim is limited to determining

whether the trial court abused its discretion and is not to substitute an

appellate court’s judgment for that of the trial court.            Commonwealth v.

Best, 120 A.3d 329 (Pa.Super. 2015). A new trial should only be awarded if

the jury’s verdict is so contrary to the evidence as to shock one’s sense of

justice. Id.

        Instantly, the jury considered the Commonwealth’s evidence, including

the video compilation of the events that preceded the murder, as well as

Appellant’s arguments suggesting that the murder was a spontaneous

incident.    Appellant contends that the jury’s verdict was contrary to the

evidence concerning whether he possessed the requisite intent to kill and

acted with premeditation. In rejecting this claim, the trial court concluded,

“the evidence of Appellant's guilt was overwhelming [and] [h]is convictions

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were clearly supported by the evidence and testimony presented by the

Commonwealth.” Trial Court Opinion, 5/10/16, at 8.                 It continued,

“[m]oreover, the evidence presented was not ‘tenuous, vague, and

uncertain.’ The jury's verdict in this case was not so contrary to the evidence

as to shock one's sense of justice.” Id.

      In reviewing the trial court’s foregoing statement we do not discern an

abuse of discretion in the trial court’s ruling on the claim. To the contrary,

the trial court cogently set forth its rationale for denying Appellant’s claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017




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