J-S68011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________
* 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
____________________________________________


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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