J-S47026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

DARNELL RAY LEWIS, JR.,

                        Appellant                 No. 2968 EDA 2013


       Appeal from the Judgment of Sentence of September 9, 2013
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0005370-2012

BEFORE: MUNDY, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                        FILED AUGUST 13, 2014

      Appellant, Darnell Ray Lewis, Jr., appeals from the judgment of

sentence entered on September 9, 2013, as made final by the denial of his

post-sentence motion on September 17, 2013. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      On the morning of October 18, 2011, Barbara Hausknect

      travelled by foot to the Taco Bell located on Route 145,
      Whitehall, Lehigh County, Pennsylvania to get her paycheck.


      Route 145 to the Walmart Superstore. The two shopped at
      Walmart for approximately 30 to 45 minutes. While there,
      Hausknect selected a few items and proceeded to the checkout
      lane. There, she signed over her paycheck to pay for her
      selected items and obtained the remainder of the money owed to
      her. Hausknect put the additional money, totaling approximately
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     $500[.00], into her black wristlet wallet.       Hausknect and
     Carasquilla exited through the doors and walked to their left.

     While speaking to her friend, Hausknect noticed [Appellant]
     pacing    nearby    and   [Ferante    Trout
     approximately [five] feet away.      The individuals made her
     nervous and they continued to walk in front of Hausknect and
     Carasquilla. [Appellant], wearing a red long-sleeved shirt, gray
     sweatshirt, jeans[,] and a black hat, approached Hausknect and
     asked her for a cigarette. Hausknect replied that she did not
     have one. [Appellant] then asked for a lighter and Hausknect
     handed Carasquilla matches to give to [Appellant]. [Appellant]
     and Carasquilla were now behind Hausknect. [Appellant] then
     approached Hausknect from behind and asked for her money.



     After Hausknect refused to give [Appellant] the wallet,
     [Appellant] pulled out a gun and pointed it at her. [Appellant]
     grabbed at Hausknect and tried to take her wallet from her left
     hand. Hausknect struggled with [Appellant]. As Hausknect
     attempted to run away from [Appellant], she was shot directly in
     her back.      After she fell to the ground, [Troutman] held
     Hausknect down and [Appellant] hit her in the mouth with the
     gun, cutting her below her nose and damaging her teeth. The
     individuals got her wallet and got into a silver or blue
     vehicle. . . .

     Immediately, peopl
     aid. They applied pressure to her wound and attempted to calm
     her down.       At approximately 12:30 p.m., members of the
     Whitehall Township Police Department arrived on scene.
     Patrolman Derrick Williams observed several people flagging him
     down and found [] Hausknect lying on the ground. Patrolman
     Williams spoke to the victim and attempted to get a description
     of the perpetrator(s) and the vehicle involved. Carasquilla, who
     had initially run when [Appellant] pulled out the gun, returned to

     involved ran to a blue vehicle and fled the area.      Patrolman

     blood in her mouth area. He directed her to stop attempting to
     move and determined that she was traumatized and in shock.
     [Hausknect] ultimately left by ambulance and was taken to
     Lehigh Valley Hospital for immediate surgery.      During the


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     taken into evidence.

                                  ***


                    -defendant,] received a phone call from the
     Appellant and Troutman, asking her to give them a ride. She
     and her then [two] year old son picked the two men up in
     Allentown and proceeded to the Walmart in Whitehall. She was
     driving a blue Chevrolet Cobalt bearing a license plate from the
     State of North Carolina. The Appellant was seated in the front
     passenger seat and Troutman and the minor child were in the
     back seat. McKenzie parked her vehicle in the parking lot while
     Troutman and the Appellant went inside the Walmart. The
     Appellant was wearing a red shirt and Troutman was wearing a
     gray shirt.

     Shortly thereafter, the two men emerged from the Walmart,
     without any bags or packages.

     placed it on his lap, and instructed McKenzie to drive. One of
     the men instructed her to stop the vehicle when they noticed
     Hausknect walking in the parking lot.      The Appellant, still

     Troutman a small distance behind the Appellant. McKenzie
     watched their interaction with Hausknect from the side window
     of her vehicle.    She saw the Appellant point the gun at
     Hausknect and saw her fall, although she did not actually hear
     any shots.

     Once Hausknect fell to the ground, McKenzie saw Troutman take

     McKenzie asked the Appellant if he shot Hausknect, the
     Appe
     give him her wallet. McKenzie, Troutman, and the Appellant left
     the area.    While driving back to Allentown, the Appellant
     removed the money from the [wallet] and threw the wallet out
     [of] the window.

                                  ***




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J-S47026-14

        Dr. [Michael] Badellino testified that the area where [Hausknect]
        was shot was a critical part of the body in that it receives
        secretions of the pancreas and processes bile from the liver.

Trial Court Opinion, 11/5/13, at 3-7 (honorifics omitted).

        The procedural history of this case is as follows. On January 5, 2012,1

Appellant was charged via criminal complaint with attempted homicide, 2 two

counts of robbery,3 aggravated assault,4 theft by unlawful taking,5 receiving

stolen property,6 and conspiracy to commit robbery.7 A criminal information

charging those same offenses was filed on December 20, 2012. A non-jury

trial commenced on July 29, 2013. On July 31, 2013, the trial court found

Appellant guilty on all charges.      On September 9, 2013, the trial court




1
 The criminal complaint contains an error, as it lists the date as January 5,
2011.
2
    18 Pa.C.S.A. §§ 901, 2501.
3
    18 Pa.C.S.A. §§ 3701(a)(1)(i), 3701(a)(1)(ii).
4
    18 Pa.C.S.A. § 2702.
5
    18 Pa.C.S.A. § 3921.
6
    18 Pa.C.S.A. § 3925.
7
    18 Pa.C.S.A. §§ 903, 3701.




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J-S47026-14

On September 16, 2013, Appellant filed a post-sentence motion which was

denied on September 17, 2013. This timely appeal followed. 8

     Appellant presents two issues for our review:

     1. Was the evidence insufficient to support the verdict of
     attempted murder[?]

     2. Was the verdict against the weight of the evidence[?]



     Appellant first contends that there was insufficient evidence to convict



verdict is a question of law; thus, our standard of review is de novo and our

                             Commonwealth v. Patterson, 91 A.3d 55, 66

(Pa. 2014) (citation omitted).   In reviewing a sufficiency of the evidence



in the light most favorable to the [Commonwealth], there is sufficient

evidence to enable the fact-finder to find every element of the crime beyond

                       Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.



preclude every possibility of innocence. . . . [T]he fact-finder is free to




8
  On October 8, 2013, the trial court ordered Appellant to file a concise
                                                                     See
Pa.R.A.P. 1925(b).  On October 15, 2013, Appellant filed his concise
statement. On November 5, 2013, the trial court issued its Rule 1925(a)

statement.



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J-S47026-14

                                                  Commonwealth v. Trinidad,

90 A.3d 721, 728 (Pa. Super. 2014) (citation omitted).



                                                           Commonwealth v.

Johnson, 874 A.2d 66, 71 (Pa. Super. 2005), appeal denied, 899 A.2d 1122

(Pa. 2006) (citation omitted).     In this case, there is no dispute that a

substantial step was taken. Appellant fired his gun, which is a substantial

step towards a killing.   However, Appellant contends that the substantial

step was not towards an intentional killing Hausknect was only shot one time

which shows that he did not intend to kill her.

      This argument is without merit.       As Appellant acknowledges, our



of the body may be sufficient to establish the requisite intent for first-degree

            Commonwealth v. Morales, 91 A.3d 80, 88 (Pa. 2014)

(citations omitted); see Commonwealth v. Burno, 2014 WL 2722758, *10

                                                     -settled that specific intent

to kill may be established through circumstantial evidence such as the use of

                                                            Commonwealth v.

Sanchez                                                                  -finder]

                                                                            eadly




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J-S47026-14

testified that the area where Hausknect was shot was a vital part of the

body.

        Appellant contends that although the trial court may infer a specific

intent to kill from a shot to a vital part of the body, it was required to

consider all of the evidence in determining whether specific intent to kill was

present. However, we must view the evidence in the light most favorable to

the Commonwealth.       The mere presence of one fact from which the trial



conclusion that Appellant possessed the requisite intent to kill.

        Appellant also contends that the evidence was insufficient to convict

him of attempted murder because McKenzie testified that Appellant told her

he only shot Hausknect because she would not give him the wallet.         This

argument is flawed for two reasons. First, it views the evidence in the light

most favorable to Appellant instead of in the light most favorable to the

Commonwealth.       Second, Appellant having shot Hausknect because she

would not give him her wallet is not mutually exclusive from Appellant

intending to murder Hausknect. The trial court could have determined that

Appellant chose to murder Hausknect because she would not give him the

wallet. Accordingly, we conclude that the evidence was sufficient to convict

Appellant of attempted murder.

        Appellant next contends his attempted murder conviction was against

the weight of the



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trial, so the trial judge was the fact-finder. The same evidence in the record



convinced the trial judge that the verdict was not against the weight of the

            Commonwealth v. Davidson, 860 A.2d 575, 582 (Pa. Super.

2004), affirmed

findings with regard to the credibility and weight of the evidence [after a

be

was manifestly erroneous, arbitrary and capricious[,] or flagrantly contrary

                   J.J. DeLuca Co., Inc. v. Toll Naval Assocs., 56 A.3d

402, 410 (Pa. Super. 2012) (internal quotation marks and citation omitted).

     We have reviewed all of the evidence presented at trial and conclude



                                                         Id.   Other than the

arguments Appellant raised as to the sufficiency of the evidence, he does not

present any argument for why the verdict was against the weight of the



merit.

     Judgment of sentence affirmed.




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J-S47026-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/13/2014




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