J-S91030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

JOHN MAURICE MCDONALD

                            Appellant               No. 680 MDA 2016


             Appeal from the Judgment of Sentence March 8, 2016
               in the Court of Common Pleas of Dauphin County
                Civil Division at No(s): CP-22-CR-0003708-2015


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                           FILED MARCH 10, 2017

        Appellant, John Maurice McDonald, appeals from the judgment of

sentence of life imprisonment without parole plus two to four years of

incarceration to be served concurrently.       This sentence was imposed

following a jury trial resulting in convictions of first degree murder and

carrying a firearm without a license.1 We affirm.

        In May 2015, Appellant was at Forever Nights, an after-hours

establishment in Dauphin County, with Kahadeeja Asia Bethea (“Ms.

Bethea”) and her cousin, Shanelle Franklin (“Ms. Franklin”).       Notes of

Testimony (N.T.), 3/7-8/16 at 86-87, 211-13, 216-18, 223.      Ms. Franklin

said something Appellant did not like, the two began to argue, and Appellant
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1
    See 18 Pa.C.S. § 2502 and 6106(a)(1), respectively.


* Former Justice specially assigned to the Superior Court.
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pushed her by placing his open hand on her face.2 Id. at 87-88, 223. Ms.

Franklin walked away and returned shortly thereafter with a security guard

of the establishment, B.J., who was accompanied by a patron of the

establishment, Todd Dunlap (“Mr. Dunlap”). Id. at 88, 224, 226.

       B.J. and Mr. Dunlap attempted to get Appellant to leave and explained,

“You’ve got to go. . . You can’t be in here putting your hands on women.

It’s early, [you’re] already starting.” Id. at 88-89. Appellant responded, “I

ain’t going no F-ing where.”         Id.   B.J. and Mr. Dunlap attempted to calm

Appellant down and when Appellant resisted, Mr. Dunlap tried to restrain

Appellant. Id. Appellant then pulled out a gun and hit Mr. Dunlap on the

head, causing Mr. Dunlap to fall on the ground.          Id. at 89-90.   Appellant

walked over to Mr. Dunlap, who was still on the ground, and fired a single

shot to the back of Mr. Dunlap’s head. Id. Appellant then stepped over Mr.

Dunlap, walked out of the establishment, got in his car, and drove away.

Id. at 90, 110-11, 223-24.           Mr. Dunlap died as a result of the gunshot

wound. Id. at 90-91. Mr. Dunlap was unknown to Appellant. Id. at 233-

34. Appellant did not have a license to carry a firearm. Id. at 237.

       At trial, Appellant presented a defense of voluntary intoxication.

Appellant testified that, in the two days prior to going to the bar that night,

he had not slept and had consumed large amounts of alcohol and ecstasy.

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2
  Ms. Franklin described this action by stating that Appellant “mushed” her in
the face. Id. at 88.



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N.T. at 227-30. Appellant further testified that he took multiple ecstasy pills

immediately before entering Forever Nights and that he had smoked a

cigarette dipped in embalming fluid earlier in the evening.    Id. at 227-30,

232, 236. Ms. Bethea testified that she accompanied Appellant to two bars

prior to their arrival at Forever Nights and Appellant was talking without

making sense.    Id. at 214-15.    Ms. Bethea witnessed Appellant take the

ecstasy before entering Forever Nights. Id. at 215-16. Appellant’s cousin,

Mariah Selvey (“Ms. Selvey”), who was also at the establishment on the

night of the incident, testified on cross-examination that Appellant was

extremely intoxicated and “real, real high”.    Id. at 195-202.    Ms. Selvey

testified that prior to arriving at the establishment, she and Appellant were

drinking and taking ecstasy pills. Id. at 197-98.

      Ms. Bethea, Ms. Franklin, and Ms. Selvey identified Appellant as the

shooter. Id. at 90, 195, 224. Ms. Franklin testified that Appellant did not

lose his balance while swinging the gun at Mr. Dunlap and observed that

Appellant did not slur his words while arguing with her. Id. at 94-95. The

D.J. at the establishment that night, Abraham Reese, testified that Appellant

was standing on his own, without assistance, while arguing with Ms.

Franklin. Id. at 79.

      Following a two-day trial in March 2016, Appellant was convicted of

first degree murder and carrying firearms without a license. Appellant was

sentenced to life imprisonment without parole for the murder charge, and

two to four years of imprisonment for the firearm charge, to be served

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concurrently.   Appellant timely filed post-sentence motions, which were

denied by the trial court. Appellant timely appealed and subsequently filed a

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b). The lower court did not issue an opinion.

      Appellant raises the following issue for our review:

      1. DID NOT THE LOWER COURT ABUSE ITS DISCRETION BY
      FAILING TO GRANT [APPELLANT] 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
      ISSUE OF [APPELLANT’S] VOLUNTARY INTOXICATION WAS
      UNRELIABLE, CONTRADICTORY, AND INCREDIBLE?

Appellant’s Brief at 4.

      Appellant argues his conviction for first degree murder was against the

weight of evidence as his intoxication should have lowered his level of

culpability to third degree murder instead.       Appellant’s Brief at 15-20.

Specifically, the Appellant asserts that the Commonwealth did not meet its

burden to refute Appellant’s intoxication defense.           Id.   The following

principles apply to our review of a weight of the evidence claim:

          The weight of the evidence is exclusively for the finder of
          fact who is free to believe all, part, or none of the
          evidence and to determine the credibility of the
          witnesses.   An appellate court cannot substitute its
          judgment for that of the finder of fact. Thus, we may
          only reverse the . . . verdict if it is so contrary to the
          evidence as to shock one’s sense of justice.

      Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999).
      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


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      evidence. Rather, appellate review is limited to whether the trial
      court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003), cert.

denied, 542 U.S. 939, (2004) (most internal citations omitted).          A trial

court's denial of a post-sentence motion based on a weight of the evidence

claim is the least assailable of its rulings. Commonwealth v. Nypaver, 69

A.3d 708, 717 (Pa. Super. 2013) (internal quotations omitted) (citing

Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012).

      In order for a jury to find a defendant guilty of murder of the first

degree, “the Commonwealth must prove, beyond a reasonable doubt, that a

human being was lawfully killed, that the accused was responsible for the

killing, and that the accused acted with a specific intent to kill.”

Commonwealth v. Pagan, 950 A.2d 270, 279 (Pa. 2008); see also 18

Pa.C.S. § 2502(a). Specific intent to kill may be inferred from the use of a

deadly weapon to inflict injury on a vital part of the body. Pagan, 950 A.2d

at 279; see also 18 Pa.C.S.A. § 2301.

      This Court has previously made clear that a defense of diminished

capacity grounded in voluntary intoxication is a very limited defense, which

does not exculpate the defendant from criminal liability, but, if successfully

advanced,   mitigates   first   degree   murder   to   third   degree   murder.

Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011). The mere

fact of intoxication is not a defense; rather, the defendant must prove that

his cognitive abilities of deliberation and premeditation were so compromised

by voluntary intoxication that he was unable to formulate the specific intent

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to kill. Id. In other words, to prove a voluntary intoxication defense, the

defendant must show that he was “overwhelmed to the point of losing his

faculties and sensibilities.” Id. (quoting Commonwealth v. Blakeney, 946

A.2d 645, 653 (Pa. 2008); see also Commonwealth v. Collins, 810 A.2d

698, 701 (Pa. Super. 2002) (concluding, generally, defendant has the

burden of proving the defense by a preponderance of the evidence when a

defense is asserted that relates to the defendant's mental state or to

information that is peculiarly within the defendant's own knowledge and

control.). In response, the Commonwealth need not “disprove a negative.”

Commonwealth v. Rose, 321 A.2d 880, 884 (Pa. 1974).             Although the

Commonwealth retains the burden of persuasion, “[o]nce a defendant has

come forward with [evidence of his intoxication], ... the Commonwealth ...

may introduce testimony to refute it, but is under no duty to do so.” Id.3

       Herein, balanced against testimony describing Appellant’s use of

alcohol and ecstasy, the Commonwealth proffered evidence that Appellant

(1) was responsive to Mr. Dunlap, (2) did not slur his words during his

argument with Ms. Franklin, (3) managed to walk over Mr. Dunlap’s body to

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3
   Appellant has erroneously suggested that it is “the Commonwealth’s
burden to disprove the elements” of his voluntary intoxication defense. See
Appellant’s Brief at 15-16 (citing in support Rose, 321 A.2d at 884). To the
contrary, the Rose Court noted specifically that “the Commonwealth has an
unshifting burden to prove beyond a reasonable doubt all elements of the
crime.” Rose, 321 A.2d at 884 (emphasis added). This burden is unaltered
by Appellant’s intoxication defense. Id.



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exit the establishment, and (4) drove himself away following the murder.

The jury was free to believe all, part, or none of this evidence. Small, 741

A.2d at 672. The court instructed the jury to consider Appellant’s defense.

See N.T. at 269-71.       Clearly, however, the jury determined that the

Commonwealth’s evidence established the requisite, specific intent to kill.

Rose, 321 A.2d at 884.

     Implicit in denying Appellant’s challenge to the weight of the evidence,

the court concluded that the verdict did not “shock one’s sense of justice.”

Small, 741 A.2d at 672. We discern no palpable abuse of discretion in this

regard. Champney, 832 A.2d at 408.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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