J-S16021-17

                                  2017 PA Super 162

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    DAIKWEON K. FORTSON                         :
                                                :
                      Appellant                 :   No. 911 WDA 2016

            Appeal from the Judgment of Sentence January 28, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0016615-2014


BEFORE:      MOULTON, J., RANSOM, J., and PLATT, J.*

OPINION BY RANSOM, J.:                                       FILED MAY 26, 2017

        Appellant, Daikweon Fortson, appeals from the judgment of sentence

of thirteen to twenty-six years of incarceration imposed January 28, 2016,

following a bench trial resulting in his conviction for attempted homicide,

robbery, aggravated assault, possession of a firearm by a minor, and

possession of a weapon.1 We affirm.

        The relevant facts and procedural history are as follows. Appellant and

Karron Tucker showed up at C.J. Clawson’s house to buy marijuana from

him. See Notes of Testimony (N.T.), 11/2/2015, at 32. C.J. was hanging

out with Tyler Grant at the time.              See id.   C.J. did not have enough


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S. §§ 901(a), 3701(a)(1)(iii), 2702(a)(1), 6110.1(a), and 907(b),
respectively.
J-S16021-17



marijuana to sell them. Id. at 25, 33. C.J. contacted Gino Roland, Jr. 2 via

twitter to inquire about purchasing additional marijuana.         Id. at 26, 33.

Gino agreed to sell C.J. one half ounce of marijuana. Id. at 116, 126. C.J.

agreed to meet Gino at Carl Schmidt’s house. See id.

        C.J. brought Appellant, Karron, and Tyler when he went to meet Gino

at Carl’s house. Id. at 26. When the four of them arrived, C.J. remained on

the porch while Gino and Carl walked into the alleyway on the side of the

house with Appellant, Karron, and Tyler. Id. at 27, 57. Either Appellant or

Karron took the marijuana without paying Gino.               Id. at 29, 58, 134.

Appellant and Karron tried to run away, but Gino and Carl chased them and

caught up. Id. at 29-30. A fight ensued. Id. at 30. Gino began wrestling

with Karron. Id. at 46, 59-60, 132. Gino knocked Karron down onto the

ground and was standing over top of him. Id. at 132. Appellant pulled a

gun on Gino.       Id. at 30-31, 59, 131-32.      At the time of the incident,

however, Appellant was ineligible to carry a concealed firearm because of his

age. Id. at 111.

        Appellant aimed the gun at Gino’s face, and Gino heard a click, but it

did not fire. Id. at 31, 136-138. Gino tried to wrestle Appellant for the gun.

Id. at 60. Appellant got free, pulled the trigger, and shot Gino in the back

from five feet away. Id. at 31, 60-61. Carl remained to help Gino as the


____________________________________________


2
    Trial court opinion refers to Gino Roland as “Roldan.”



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others fled.     Id. at 53.     Officer Jones found Gino lying on the sidewalk

bleeding profusely. Id. at 11-12, 11-15. Gino suffered two fractured ribs,

two fractured vertebrae, and two collapsed lungs. Id. at 121-123.

       Following a non-jury trial, Appellant was found guilty and sentenced as

described above.3 Appellant filed a post-sentence motion, which the court

denied on May 31, 2016. Appellant timely filed a notice of appeal and court-

ordered Pa.R.A.P. 1925(b) statement. The court filed a responsive opinion.

       On appeal, Appellant raises the following issues:

       I.   Whether the Commonwealth produced sufficient evidence
       to sustain a guilty verdict for criminal attempt – criminal
       homicide?

       II.  Whether the verdict is against the weight of the evidence
       presented?

       III. Whether Pennsylvania’s sentencing guidelines as applied to
       a juvenile defendant violated the proportionality requirement of
       the Eighth Amendment?

Appellant's Br. at 3.

       First, Appellant challenges the sufficiency of the evidence offered to

prove criminal attempt to commit murder.         In reviewing the sufficiency of

the evidence, our standard of review is as follows:


____________________________________________


3
   At the time of the underlying offenses, Appellant was fifteen years old.
Appellant was automatically certified to adult criminal court. Thereafter, he
filed a motion for decertification. The trial court record does not disclose
disposition on the motion.         Appellant has not raised the issue of his
certification for trial as an adult on appeal.



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         [W]hether 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
     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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

     “A person commits an attempt when, with the intent to commit a

specific crime, he does any act which constitutes a substantial step towards

the commission of that crime.” 18 Pa.C.S. § 901(a).

     “For a defendant to be found guilty of attempted murder, the
     Commonwealth must establish specific intent to kill.”
     Commonwealth          v.  Geathers,     847     A.2d    730,     734
     (Pa.Super.2004). Therefore, “[i]f a person takes a substantial
     step toward the commission of a killing, with the specific intent
     in mind to commit such an act, he may be convicted of
     attempted murder.”         In re R.D., 44 A.3d 657, 678
     (Pa.Super.2012). “The Commonwealth may establish the mens
     rea required for first-degree murder, specific intent to kill, solely
     from circumstantial evidence.” Id. Further, our Supreme Court
     has repeatedly determined that “[t]he use of a deadly weapon
     on a vital part of the body is sufficient to establish the specific
     intent to kill.” Commonwealth v. Rega, 933 A.2d 997, 1009
     (Pa. 2007); see also Commonwealth v. Cousar, 928 A.2d
     1025, 1034 (Pa. 2007) (“a specific intent to kill may be inferred



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        from the use of a deadly weapon on a vital part of the victim's
        body.”).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016), appeal

denied, 143 A.3d 955 (Pa. 2017).

        Here, Appellant argues that the Commonwealth failed to present

evidence to prove that he possessed the specific intent to kill, i.e., to commit

a “willful, deliberate, and premeditated killing.”       Appellant's Br. at 12

(quoting 18 Pa.C.S. § 2502).        Appellant asserts that the Commonwealth

provided no evidence of prior interactions between the victim and Appellant.

He asserts that he did not initiate the physical altercation and maintains that

he was trying to escape when he shot the victim.

        As previously noted, a specific intent to kill may be proven by

circumstantial evidence. Further, in the trial of a person for attempting to

commit murder, “the fact that that person was armed with a firearm, used

or attempted to be used, and had no license to carry the same, shall be

evidence of that person's intention to commit the offense.”        18 Pa.C.S. §

6104.

        Appellant argues that he did not initiate the physical altercation, which

appears to assert that he acted in self-defense rather than pre-meditated

the killing. However, there is no evidence that he presented this theory in

pre-trial motions or as a defense at trial.    Further, his argument does not

articulate a challenge that the evidence was insufficient to infer a specific

intent to kill.   Thus, his argument is misplaced as it is more appropriately

directed to the weight of the evidence presented at trial, as discussed infra.

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J-S16021-17



        Here, the evidence presented established that Appellant attempted to

shoot the victim in the face, but the gun failed to fire.       Appellant tried to

shoot the Victim again. As the trial court explained, he “took deliberate aim

at the back of a man on the ground and fired a bullet into his spine.” TCO,

8/26/2016, at 10. Appellant shot the victim at a close range, nearly killing

him.4 The jury may infer specific intent to commit murder from the fact that

Appellant took multiple attempts to shoot the Victim in vital parts of his

body.     Rega, 933 A.2d at 1009; Cousar, 928 A.2d at 1034; see also

Commonwealth v. Harris, 817 A.2d 1033, 1039 (Pa. 2002). In addition,

Appellant was illegally armed with a firearm at the time of the incident,

which provides further evidence of intent. See 18 Pa.C.S. § 6104. Based on

the totality of the circumstances, the evidence was sufficient for the jury to

infer a specific intent to murder the victim beyond a reasonable doubt.

Tucker, 143 A.3d at 964-65.

        Second, Appellant contends that the verdict was against the weight of

the evidence.      Appellant reasserts that he was trying to escape from the

victim, rather than kill him.        Further, Appellant claims that the factfinder

relied on contradictory and inconsistent testimony.         Appellant argues that

inconsistencies in the witness testimony made it “equally if not more likely
____________________________________________


4
  The bullet fractured two of the victim’s ribs propelling shards of bone into
his left lung causing extensive lacerations and hemorrhaging. See N.T.,
1/28/2016, at 6. The victim suffered two fractured ribs, two collapsed
lungs, and a fractured vertebrae from the bullet path. Id.



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J-S16021-17



that [Appellant] was attempting to effectuate his escape from the incident

when he shot the victim, and was not trying to kill him.” Appellant's Br. at

13-14.

      In assessing a claim that the verdict was against the weight of the

evidence, this Court will not substitute its judgment for that of the factfinder,

which is free to assess the credibility of witnesses and to believe all, part, or

none of the evidence presented.      Commonwealth v. DeJesus, 860 A.2d

102 (Pa. 2004); Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995)

(“[A]n appellate court is barred from substituting its judgment for that of the

finder of fact.” (citing Commonwealth v. Pronkoski, 445 A.2d 1203, 1206

(1982)).

      “When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court's
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.” Commonwealth v. Rossetti,
      863 A.2d 1185, 1191 (Pa. Super. 2004) (citation omitted).
      “Moreover, where the trial court has ruled on the weight claim
      below, an appellate court's role is not to consider the underlying
      question of whether the verdict is against the weight of the
      evidence.” Commonwealth v. Champney, 832 A.2d 403, 408
      (Pa. 2003). “Rather, appellate review is limited to whether the
      trial court palpably abused its discretion in ruling on the weight
      claim.” Id.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007).

Further, this Court will not reverse a verdict unless it is so contrary to the

evidence as to shock one’s sense of justice. Commonwealth v. Giordano,

121 A.3d 998, 1007 (Pa. Super. 2015).

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J-S16021-17


       Appellant’s argument fails to reveal any inconsistencies in testimony

that would affect the overall outcome of the case, and his contention that

the trial court incorrectly weighed his own testimony is merely self-serving.

Here, multiple witnesses established that Appellant brandished a firearm,

without a license to carry it, and, while standing a short distance away from

the victim, shot the victim in the back. In light of this ample evidence, the

court’s verdict certainly did not shock one’s sense of justice. Giordano, 121

A.3d at 1007.       Thus, the trial court did not commit a palpable abuse of

discretion in denying Appellant’s weight claim. Trippett, 932 A.2d at 198.

       Next, Appellant contends that the Pennsylvania sentencing guidelines

violate the proportionality requirement of the Eighth Amendment of the U.S.

Constitution.    Appellant's Br. at 17-20; 42 Pa.C.S. § 2154 (directing the

sentencing commission to adopt guidelines); 204 Pa. Code § 303.11

(referencing the purpose of the guidelines).5    However, Appellant asserts

that the guidelines’ primary focus on retribution does not adequately take

into account the evolution of recent United States Supreme Court precedent

recognizing the diminished culpability for juveniles.   Appellant's Br. at 20

(suggesting that the only safeguard against imposition of an unconstitutional

sentence is the trial court’s discretion). Thus, Appellant concludes that the

____________________________________________


5
  Although Appellant cites a single section of the guidelines, his challenge
applies to the guidelines in their entirety. See 204 Pa. Code §§ 303.1-
.18(c).



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J-S16021-17


sentence imposed upon him was unconstitutional.

      Duly    enacted    legislation   carries   a   strong    presumption    of

constitutionality. Commonwealth v. Turner, 80 A.3d 754, 759 (Pa. 2013).

The General Assembly does “not intend to violate the constitution of the

United States or of this Commonwealth when promulgating legislation.”

Commonwealth v. Baker, 78 A.3d 1044, 1050 (Pa. 2013) (quoting 1

Pa.C.S. § 1922(3)).

      In conducting our review, we are guided by the principle that
      acts passed by the General Assembly are strongly presumed to
      be constitutional, including the manner in which they were
      passed. Thus, a statute will not be found unconstitutional unless
      it clearly, palpably, and plainly violates the Constitution. If there
      is any doubt as to whether a challenger has met this high
      burden, then we will resolve that doubt in favor of the statute's
      constitutionality.

Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal

quotation marks and citations omitted). “As the constitutionality of a statute

presents a pure question of law, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Lawrence, 99 A.3d 116,

118 (Pa. Super. 2014) (citing Turner, supra).

      The Eighth Amendment to the Federal Constitution states that
      “[e]xcessive bail shall not be required, nor excessive fines
      imposed, nor cruel and unusual punishments inflicted.” 6 U.S.
      CONST. amend. VIII.        The Eighth Amendment is unique in
      constitutional jurisprudence because it “must draw its meaning
      from the evolving standards of decency that mark the progress
      of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101
      (1958) (plurality).     “[T]he Eighth Amendment's protection
      against excessive or cruel and unusual punishments flows from
      the basic ‘precept of justice that punishment for [a] crime should
      be graduated and proportioned to [the] offense.’” Kennedy v.

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J-S16021-17


       Louisiana, 554 U.S. 407, 419 (2008), quoting Weems v.
       United States, 217 U.S. 349, 367 (1910). “By protecting even
       those convicted of heinous crimes, the Eighth Amendment
       reaffirms the duty of the government to respect the dignity of all
       persons.” Hall v. Florida, ___ U.S. ___, 134 S.Ct. 1986, 1992
       (2014) (citation omitted).

Lawrence, 99 A.3d at 119 (parallel citations omitted).

       It is settled that juvenile defendants are less culpable for criminal

behavior than adults. Roper v. Simmons, 125 S. Ct. 1183, 1195 (2005)

(recognizing juveniles’ lack of maturity, susceptibility to negative influences,

and the transitory nature of their personality traits). The recognition of this

diminished culpability has led the United States Supreme Court to conclude

that   certain   categories    of    punishments    are   violative    of     the   Eighth

Amendment. For example, in Roper, the Court abolished the death penalty

for juvenile offenders under eighteen.        Id. at 1200. Thereafter, the Court

prohibited imposition of life without parole upon juveniles for non-homicide

crimes. Graham v. Florida, 130 S. Ct. 2011, 2030 (2010) (instructing that

States afford juvenile defendants convicted of non-homicide crimes “some

meaningful opportunity to obtain release based on demonstrated maturity

and    rehabilitation”).      Most    recently,   the   Supreme       Court    prohibited

mandatory life without parole sentences for juveniles convicted of homicide.

Miller v. Alabama, 132 S. Ct. 2455, 2646 (2012).

       However, this Court has declined to expand the categories of

punishment prohibited based upon the diminished culpability of youth. See

Lawrence, 99 A.3d at 122 (rejecting an argument to expand the categorical

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J-S16021-17


prohibition recognized in Miller to the sentencing scheme set forth in 18

Pa.C.S. § 1102, which mandates a minimum thirty-five year sentence for

juveniles convicted of first-degree murder).           Certainly here, where the

sentence imposed – thirteen to twenty-six years - is far less severe than

those considered by the Supreme Court or by this Court, no such categorical

prohibition is warranted.

      Moreover, considering that this Court has determined previously that

sentences far more severe than that imposed upon Appellant provide a

meaningful    opportunity      for   release,    the   Supreme   Court’s     general

admonition, articulated in Graham, is not at issue here.                  Id. at 124

(affirming a forty-five year to life sentence for juvenile convicted of first-

degree murder); see also Commonwealth v. Brooker, 103 A.3d 325,

339-40 (Pa. Super. 2014) (concluding that a thirty-five year sentence for

first-degree murder was not equivalent to a life sentence, provided a

meaningful opportunity for release, and therefore did not violate the Eighth

Amendment). Thus, despite diminished culpability, it remains constitutional

that juveniles convicted of serious crimes may receive significant periods of

incarceration. Lawrence; Brooker.

      Finally, turning to the guidelines, we note the following. In directing

the Sentencing Commission to adopt guidelines, the General Assembly

required   that   sentencing     recommendations       be   “consistent    with   the

protection of the public, the gravity of the offense as it relates to the impact


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J-S16021-17


on the life of the victim and the community and the rehabilitative needs of

the offender.”     42 Pa.C.S. § 2154(a).       Section 303.11(a) reflects these

requirements, defining the purpose of the guidelines in relevant part:

      The sentencing guidelines provide sanctions proportionate to the
      severity of the crime and the severity of the offender's prior
      conviction record. This establishes a sentencing system with a
      primary focus on retribution, but one in which the
      recommendations allow for the fulfillment of other sentencing
      purposes including rehabilitation, deterrence, and incapacitation.

204 Pa.Code § 303.11(a).

      The   guidelines’    express   declaration    that   sentences    must    be

proportionate to the severity of the crime and that rehabilitation of the

offender is a fundamental purpose undermines Appellant’s singular focus on

the retributive nature of criminal sanctions. Thus, in our view, Appellant’s

argument is not persuasive.

      Moreover, the guidelines set forth a framework, to be considered by

the   sentencing   court   in   fashioning   an   individualized   sentence.   See

Commonwealth v. Walls, 926 A.2d 957, 962-963 (Pa. 2007); see also 42

Pa.C.S. §§ 2154(a), 9721; see generally 204 Pa.Code §§ 303.1-.18(c). To

be clear, while the court must consider the guidelines, the court is also

afforded broad discretion in sentencing matters, as it is in the best position

to evaluate the individual circumstances before it. Walls, 926 A.2d at 961.

Thus, the guidelines “merely inform the sentencing decision.” Id. at 962.

      Appellant suggests that this broad discretion is insufficient to protect

the juvenile defendant. We disagree. The advisory nature of the guidelines

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J-S16021-17


ensures, as constitutionally required, that the diminished culpability of

juvenile defendants is properly considered.                In exercising its discretion,

“[t]he sentencing court must impose a sentence that is appropriate in light

of the individualized facts of the underlying incident.” Commonwealth v.

Johnson, 873 A.2d 704, 709 (Pa. Super. 2005); see also Commonwealth

v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002), appeal denied, 868 A.2d 1198

(2005), cert. denied, 125 S. Ct. 2984 (2005).                  The court must consider

aggravating and mitigating circumstances. “In particular, the court should

refer    to   the   defendant's     prior      criminal   record,     his    age,    personal

characteristics and his potential for rehabilitation.”                Commonwealth v.

Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (quoting Griffin 804 A.2d at

10)     (emphasis    added),     appeal      denied,      76   A.3d    538    (Pa.    2013);

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)).

        For these reasons, we conclude that the sentencing guidelines, as

applied to Appellant, do not violate the proportionality requirement of the

Eighth Amendment. Accordingly, no relief is due.6

        Judgment of sentence affirmed.


____________________________________________


6
  To the extent Appellant suggests that the court did not adequately account
for his youth and his “minimal” prior interactions with the juvenile justice
system, such a claim is more appropriately formulated as a challenge to
discretionary aspects of his sentence, i.e., that the court failed to consider
youthfulness as a mitigating factor. Appellant has not preserved such a
claim, and it is therefore waived.



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J-S16021-17


     Judge Moulton joins.

     Judge Platt concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




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