J-S91040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                                 :          PENNSYLVANIA
                                                 :
               v.                                :
                                                 :
                                                 :
    DAEQUAHN TYREE AMMIR JONES                   :
                                                 :
                      Appellant                  :     No. 105 MDA 2016

           Appeal from the Judgment of Sentence December 31, 2015
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007227-2014



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

MEMORANDUM BY STEVENS, P.J.E.:                            FILED FEBRUARY 24, 2017

        Daequahn     Tyree    Ammir      Jones       (“Appellant”)   appeals   from   the

judgment of sentence entered in the Court of Common Pleas of York County

after a jury found him guilty of third-degree murder.1 Sentenced to 18 to 40

years’ incarceration, Appellant challenges two of the court’s evidentiary

rulings and contends that evidence was insufficient to support his conviction.

We affirm.

        On September 24, 2014, authorities charged Appellant with criminal

homicide2 and criminal conspiracy to commit homicide 3 in connection with

____________________________________________


1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 2501(a).


* Former Justice specially assigned to the Superior Court.
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the fatal shooting of Na’Gus Griggs (“Decedent”), slain as he sat in the

passenger seat of a friend’s car traveling at the corner of Princess and Pine

Streets in York City. With Appellant’s jury trial slated to begin on November

2, 2015, the Commonwealth filed a motion in limine on October 22, 2015,

seeking to introduce evidence of gang activity in the neighborhood.

Specifically, the evidence consisted of witness testimony that Appellant and

Decedent hailed from rival parts of York City feuding over the shooting death

of Appellant’s friend at the hands of Decedent’s brother. The court ruled the

evidence admissible.

        On October 29, 2015, Appellant filed a motion in limine seeking to

preclude admission of several items of evidence submitted in discovery by

the Commonwealth one week before trial, including a computer-generated

reference map of the crime scene depicting bullet trajectory analysis based

on measurements taken a year earlier. The court entertained argument on

Appellant’s motion and denied Appellant’s motion for want of prejudice.

        Appellant’s jury trial began on November 2, 2015. On the first day of

trial, while scrolling through crime scene pictures corresponding to an

investigating officer’s testimony, the Commonwealth inadvertently flashed

on the projector screen a color autopsy photograph of Decedent revealing

the entry wound to the back of his head.          The next morning, before trial


                       _______________________
(Footnote Continued)
3
    18 Pa.C.S. § 903.



                                            -2-
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resumed, Appellant moved for mistrial, arguing that colorization of the

wound was inflammatory, the depiction irrelevant—given his self-defense

defense—and the resultant prejudice beyond the remedy of a curative

instruction. N.T. at 185-86. The court noted that the display was so brief

that it escaped the court’s observation. The court also acknowledged party

agreement that the passing display was accidental and no commentary

about the photo was offered. N.T. at 187. Relying on these findings, the

court concluded that no prejudice befell Appellant from the momentary

showing, and it denied his motion for mistrial. N.T. at 187.

       Nevertheless, the court turned to the issue of whether the photograph

was admissible, as it was clear the Commonwealth intended to offer it as an

exhibit later at trial.    Id.   The court, first, rejected Appellant’s irrelevancy

argument, finding the depiction of not only the entry wound but also

surrounding “stipple wounds”4 to the back of Decedent’s head provided

crucial support for the prosecution’s self-defense disproof which posited that

Decedent could not have been firing at Appellant through an open car

window at the time of the fatal shot. N.T. at 187.

       Because it also supplied crucial demonstrative evidence, the court

continued, the photograph also possessed considerable evidentiary value

which exceeded its potential for prejudice. In engaging in the “evidentiary

____________________________________________


4
  “Stipple wounds” are small cuts caused by numerous tiny shards of glass
projected at high-speed when a bullet pierces a window. See infra.



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value/likelihood of prejudice” balancing test, the court clearly deemed the

photograph inflammatory to some degree. Indeed, the court anticipated the

photograph could very well upset Decedent’s friends and family members

and suggested that they be notified outside of the jury’s presence that they

may wish to leave the courtroom during display of the photograph. N.T. at

187-88.

      Nevertheless, the court considered the photographic display of the

injury location and pattern colorization of the photograph of sufficient

evidentiary value to overcome the potential for prejudicing the jury of a

necessarily upsetting depiction, concluding that the photograph was,

therefore, not “overly prejudicial.” N.T. at 188.

      Appellant’s final motion with respect to the photograph sought

preclusion of a color version in favor of a black-and-white one.               The

Commonwealth responded that color was necessary because Decedent’s

wounds would be indistinguishable from moles in a black-and-white

photograph.   N.T. at 188.       The court asked if a black and white version

existed to allow for comparison, prompting defense counsel to produce a

color copy which, in his opinion, was so pale it “almost looks black and

white. It is not.” N.T. at 189. After comparing the two, the court found no

significant difference between Appellant’s and the Commonwealth’s copy.

They were both “lightly colored,” it concluded, and lacking of any “significant

prejudice,”   thus   obviating     any    need   for   “decolorization”   of   the




                                         -4-
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Commonwealth’s exhibit. N.T. at 190. Accordingly, the court deemed the

autopsy photograph admissible.

      At the conclusion of evidence, which consisted primarily of exhibits and

eyewitness accounts of the shooting, the case was submitted to the jury.

On November 6, 2015, the jury found Appellant not guilty of first-degree

murder and guilty of third-degree murder.      On December 31, 2015, the

court sentenced Appellant to 18 to 40 years’ incarceration.        This timely

appeal followed.

      Appellant presents the following questions for our review:

      I.    WHETHER THE TRIAL COURT ERRED AND/OR
            ABUSED ITS DISCRETION IN DENYING THE
            DEFENDANT’S      MOTION      TO     SUPPRESS
            COMMONWEALTH’S EXHIBIT 33, WHICH IS A
            COMPUTER GENERATED MAP FROM THE CRIME
            SCENE, DEPICTING MEASUREMENTS AND THE
            TRAJECTORY OF A BULLET; THE MAP WAS PROVIDED
            TO THE [APPELLANT] ON OCTOBER 26, 2015, AND
            INTRODUCED TO COUNTER THE [APPELLANT’S]
            SELF-DEFENSE CLAIM?

      II.   WHETHER THE TRIAL COURT ERRED AND/OR
            ABUSED ITS DISCRETION IN DENYING THE
            [APPELLANT’S] MOTION FOR MISTRIAL IN WHICH
            THE [APPELLANT] RAISED HIS OBJECTION TO A
            COLOR PHOTOGRAPH, EXHIBIT 27, OF THE VICTIM
            FROM THE AUTOPSY?


      III. WHETHER THE COMMONWEALTH’S EVIDENCE WAS
           INSUFFICIENT TO SUPPORT THE JURY’S VERDICT OF
           GUILTY OF MURDER IN THE THIRD DEGREE?

Appellant’s brief at 4.




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      In Appellant’s first issue, he contends that the trial court abused its

discretion in denying his motion to suppress Commonwealth exhibits

depicting computer-generated, scale drawings of the crime scene delineating

a bullet’s trajectory based on the height of the entry and exit bullet holes in

the barbershop downspout and the angle connecting the two holes.

      In considering Appellant's challenge to the trial court's denial of his

motion in limine, we employ a well-settled standard of review:

      When reviewing the denial of a motion in limine, this Court
      applies an evidentiary abuse of discretion standard of review....
      It is well-established that the admissibility of evidence is within
      the discretion of the trial court, and such rulings will not form
      the basis for appellate relief absent an abuse of discretion.”
      [Commonwealth v.] Rivera, 983 A.2d [1211,] 1228 (citation
      and quotation marks omitted). Thus, the Superior Court may
      reverse an evidentiary ruling only upon a showing that the trial
      court abused that discretion. Commonwealth v. Laird, 605
      Pa. 137, 988 A.2d 618, 636 (Pa. 2010). A determination that a
      trial court abused its discretion in making an evidentiary ruling
      “may not be made ‘merely because an appellate court might
      have reached a different conclusion, but requires a result of
      manifest unreasonableness, or partiality, prejudice, bias, or ill-
      will, or such lack of support so as to be clearly erroneous.’” Id.
      (quoting Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d
      483, 495 (Pa. 2009)). Further, discretion is abused when the
      law is either overridden or misapplied. Commonwealth v.
      Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (Pa. 2005).

Commonwealth v. Hoover, 630 Pa. 599, 610, 107 A.3d 723, 729 (Pa.

2014).

      As noted above, the court heard argument on the parties’ respective

motions in limine on the morning of trial.       Included among these was

Appellant’s motion to preclude evidence consisting of a computer-generated



                                     -6-
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map depicting ballistics trajectory analysis that, inter alia, discredited

Appellant’s self-defense theory alleging Decedent fired the first shot.5

Initially, defense counsel refined the motion by abandoning his written

request for a continuance and asking solely for “suppression” of the map and

accompanying analysis.          N.T. 11/2/15 at 15.   He, then, advanced an

argument sounding in unfair prejudice, stating “I very briefly spoke to my

expert about [the map] on the phone last week after I received it. I haven’t

had an opportunity to follow up on that to see if that’s [the map] accurate.

So, I would just ask that the Commonwealth be prohibited from using that

at trial.” N.T. at 15.

       The trial court confirmed with defense counsel that he had forwarded

the map and analysis to his expert a week earlier and then asked “Has your

expert complained to you that he doesn’t know what to do now that he has

gotten this document so late he is prejudiced?” N.T. at 18. Defense counsel

answered simply “No.” Id. The court thereafter denied Appellant’s motion,

determining that prejudice did not flow from the recent date of the exhibit’s

delivery.



____________________________________________


5
  Appellant’s self-defense theory had sought to establish, from a bullet hole
in a nearby downspout, the respective positions of Decedent’s vehicle and
Appellant in such a way as to attribute the first gunshot to Decedent. The
trajectory analysis of the bullet hole, however, ruled out the Decedent’s
vehicle as a possible origination point of gunfire causing the hole. N.T. at
16.



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      Our review of the record discloses no grounds to overturn the court’s

denial of Appellant’s motion, as Appellant failed to establish prejudice

requisite to a reversal. The fact that the evidence in question would likely

figure prominently in the Commonwealth’s case against Appellant’s defense

theory of self-defense did not, alone, establish unfair prejudice when

defense counsel never alleged in his truncated motion that his expert had

insufficient time to review the map and trajectory analysis in order to

develop a defense response. This claim, therefore, fails.

      In Appellant’s second issue, he asserts that the court erred in denying

his motion for mistrial after the prosecutor, while developing the testimony

of the crime scene technician, momentarily displayed a color autopsy

photograph on the projection screen as he was scrolling to a crime scene

photograph. Specifically, the court erred when it failed to consider whether

the photograph was inflammatory or if it was essential evidence that could

not be conveyed with a black-and-white photograph. We disagree.

      We review the denial of a motion for mistrial under the abuse of

discretion standard. Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa.

2011) (citation omitted). “A mistrial is an extreme remedy that is required

only where the challenged event deprived the accused of a fair and impartial

trial.” Id. (citation omitted).

      As noted, supra, the trial court first determined that no prosecutorial

misconduct accompanied what the parties agreed was an accidental display

of the color autopsy photo. The court denied Appellant’s motion for mistrial

                                    -8-
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to the extent that it was based on an allegation of intentional misconduct on

the part of the Commonwealth. We have reviewed the record in this regard

and discern no error with the court’s judgment.

       Appellant asserts additionally, however, that the court erred in its

subsequent determination that the photograph was admissible later at trial

to illustrate so-called “pseudo-stippling”6 injuries sustained by Decedent.

When considering the admissibility of photographs of a victim, which by their

very nature can be unpleasant, disturbing, and even brutal, the trial court

must engage in a two-step analysis:

       First a [trial] court must determine whether the photograph is
       inflammatory. If not, it may be admitted if it has relevance and
       can assist the jury's understanding of the facts.          If the
       photograph is inflammatory, the trial court must decide whether
       or not the photographs are of such essential evidentiary value
       that their need clearly outweighs the likelihood of inflaming the
       minds and passions of the jurors.

Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation

omitted). In order to render a photograph inflammatory, the depiction must

be of such a gruesome nature or be cast in such an unfair light that it would

tend to cloud an objective assessment of the guilt or innocence of the

defendant. Commonwealth v. Hubbard, 372 A.2d 687, 697 (Pa. 1977).

However, “[t]he fact that blood is visible does not necessarily require a

____________________________________________


6
  “Psuedo-stippling” injuries consist of numerous pinpoint cuts formed when
a bullet pierces a nearby window and propels small glass fragments along its
path to the gunshot victim.



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finding that a photograph is inflammatory.” Commonwealth v. Lewis, 567

A.2d 1376, 1382 (Pa. 1989). Moreover, “[a] court must assure a defendant

a fair trial[, and] [a] judge has discretion to give or not give curative

instructions.” Commonwealth v. Pezzeca, 749 A.2d 968, 971 (Pa. Super.

2000).

      Here, the court admitted into evidence a color autopsy photograph

depicting the back of Decedent’s upper torso and head.          A single entry

wound, surrounded by multiple small cuts in the aforementioned “pseudo-

stippling” pattern, is visible in the back of the head as are additional stipple

wounds on the upper back and shoulder.           Commonwealth Exhibit #27.

Decedent’s wounds appear red where the skin is broken, but the coloring is

moderate in tone. Because Decedent’s head is turned slightly to the side, a

partial profile view of his face—revealing the edge of his closed right eye and

the tip of his nose—is visible, but considerably obscured by shadow.

      As explicated above in detail, the court deemed the photograph

relevant before shifting its consideration to whether the photograph’s

evidentiary value was so essential that its need outweighed its potential to

inflame the jury. Contrary to Appellant’s assertion otherwise, therefore, the

court engaged in the proper analysis of this issue.

      In addition, we discern no error with the court’s conclusion that the

Commonwealth’s need to support its self-defense disproof with a depiction of

both the location and the pattern of Decedent’s injuries was comparatively

greater than was the potential for prejudice flowing from the admission the

                                     - 10 -
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photograph, which was not so inflammatory as to preclude the jury’s ability

to weigh its value objectively among all the evidence and render an impartial

verdict. Finally, we note that the court’s cautionary instruction 7 emphasized

that the picture, while unpleasant, must not stir emotions to the prejudice of

Defendant.      Instead, it was the jury’s duty to base its decision on a

dispassionate review of the evidence, the court appropriately charged. It is

well-settled that “the jury is presumed to have followed the court's

instructions.” Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010). For

the forgoing reasons, no relief is due on this claim.

        In his final issue, Appellant raises a sufficiency challenge to the

evidence     offered to     disprove    Appellant’s   self-defense   defense.   The

Commonwealth failed to disprove that Decedent provoked the use of force in

the altercation, Appellant argues, as the evidence established that Decedent

traveled to Appellant’s neighborhood for the “purported purpose of exacting
____________________________________________


7
    Before jury deliberations, the court gave the following instruction:

        THE COURT: There was a photograph that was admitted into
        evidence for the purpose of showing the nature of wounds that
        were received by Nagus Griggs and to orient Nagus Griggs’ body
        while in the vehicle. It was not a pleasant photograph to look
        upon and you should not let it stir up the emotions to prejudice
        of [sic] the Defendant.

        Your verdict is based on rational and fair consideration of all the
        evidence and not on passion or prejudice against the Defendant
        or the Commonwealth or anybody else connectd with this case.

N.T. at 590.



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revenge against [Appellant] for his friends’ actions that resulted in

[Decedent’s] brother being incarcerated.” Appellant’s brief at 26. Gunshot

residue was detected inside the Decedent’s vehicle and the firearm “that had

been in the vehicle was missing when the police later searched the vehicle,”

Appellant maintains. Id. As a result, Appellant asserts that he “reasonably

believed he was in danger of death or serious bodily injury when Decedent

initiated the violent encounter by firing a gun at him first.”

      Our review of a sufficiency of the evidence challenge is well-settled:

      The standard we apply ... is whether 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. Truong, 36 A.3d 592, 597 (Pa. Super. 2012) (en banc)

(quotation omitted).

      Where, as here, a defendant claims his actions were justified by self-

defense, he has no burden to prove that claim.        See Commonwealth v.



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Smith, 97 A.3d 782, 787 (Pa. Super. 2014).            Rather, once there is any

evidence before the factfinder which supports a claim of self-defense, the

Commonwealth bears the burden of disproving the claim beyond a

reasonable doubt. See id.

      The defense, found in Section 505 of the Crimes Code provides, in

relevant part:

      (a) Use of force justifiable for protection of the person.—
      The use of force upon or toward another person is justifiable
      when the actor believes that such force is immediately necessary
      for the purpose of protecting himself against the use of unlawful
      force by such other person on the present occasion.

      (b) Limitations on justifying necessity for use of force.—

      ****

      (2) The use of deadly force is not justifiable under this section
      unless the actor believes that such force is necessary to protect
      himself against death, serious bodily injury, kidnapping or sexual
      intercourse compelled by force or threat; nor is it justifiable if:

            (i) the actor, with the intent of causing death or
            serious bodily injury, provoked the use of force
            against himself in the same encounter; or

            (ii) the actor knows that he can avoid the necessity
            of using such force with complete safety by
            retreating, except the actor is not obliged to retreat
            from his dwelling or place of work, unless he was the
            initial aggressor or is assailed in his place of work by
            another person whose place of work the actor knows
            it to be.

      18 Pa.C.S. § 505(a), (b)(2).      Accordingly, the Commonwealth may

disprove a claim of self-defense if it establishes:



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      1) the accused did not reasonably believe that he was in danger
      of death or serious bodily injury; or 2) the accused provoked or
      continued the use of force; or 3) the accused had a duty to
      retreat and the retreat was possible with complete safety.

Smith, supra, 97 A.3d at 787 (quotation omitted).

      Here, the Commonwealth presented ample evidence to disprove

Appellant’s claim that he was under fire and acting in self-defense when he

fatally shot Decedent. Nineteen year-old Sonyai Lewis, who knew Appellant

from the neighborhood and Decedent from school, testified that she was just

a few feet from Appellant when she witnessed him fire the first shot. N.T. at

224-226.    Specifically, Lewis recounted that a red, four-door car was

traveling on Pine Street when it stopped for a red light at the Pine

St./Princess St. intersection.    She saw Decedent sitting in the front

passenger seat with his window partially down, and then she noticed her

neighbors Appellant and Troyvon Breeland approach from across the street,

walking behind the car.

      Appellant walked directly up to Justin Franklin, who was standing with

Lewis, and took a handgun from Franklin’s waistband while Breeland twice

implored him to “let that thing ring,” Lewis testified. N.T. at 227. According

to Lewis, Appellant fired the first shot from very close range, which caused

Decedent’s head to “go to the side.” N.T. at 225, 227. She testified that

she and other by-standers instantly ran for cover while the sound of

additional shots rang in the air. N.T. 225-240.

      Justin Franklin corroborated Lewis’ account. He testified he possessed

Appellant’s gun because Appellant had given it to him to hold earlier that

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day. N.T. at 254. Appellant quickly retrieved it to open fire on Decedent as

the car was making a right turn from Pine onto Princess Street after stopping

for a red light, Franklin said:

      Q: And can you describe to the jury the details of what exactly
      happened?

      A: Um, a car pulled up to the light and then he [Appellant]
      grabbed the gun and started shooting and I ran.

      Q: Who grabbed the gun?

      A: Dae Dae [Appellant].

      ****
      Q: And that night did you see anyone else besides Dae Dae fire
      a gun?

      A: No, not that I can remember.

N.T. at 251, 255.

      Franklin denied seeing Decedent inside the car, as he was talking to

the girls on the street corner, although to the best of his recollection the car

windows were up as it stopped at the light. N.T. at 262. Franklin heard a

total of three or four shots as he ran away from the scene with the others.

N.T. at 265.

      Officer Jeffrey Mayer of the York City Police Department testified that

he processed and collected evidence at the crime scene at Pine and Princess

Streets. N.T. at 157-58. Of particular interest was an apparent bullet strike

through a downspout and adjacent brick on the Pine Street-facing side of the

barbershop building’s corner. N.T. at 162; Commonwealth Exhibits #19-24.



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Officer Mayer took photographs and measurements of the bullet strike and

entered the measurements into a computer program to create a three-

dimensional drawing.      N.T. at 163; Commonwealth Exhibits #35-37.

Trajectory analysis based on the height of the downspout entry hole and the

steep angle to the exit hole led to the conclusion that the causative bullet

could not have been fired from inside Decedent’s car but most probably

came from, instead, a gun fired from the Pine Street sidewalk just a few feet

away from the corner downspout. N.T. at 179-182, 211-216. This was the

location from which eyewitnesses observed Appellant fire at the car.

      Police found a handgun deep in the glove compartment of the

abandoned car in which Decedent’s body lay.         They established, however,

that the fully loaded weapon was not discharged during the shooting. While

gunshot residue recovered from inside the vehicle suggested a gun had been

fired from inside the car at some point in time, both experts agreed they

could not infer that such gunfire occurred at the time or even on the day in

question.   Appellant’s expert, himself, explained that residue evidence

established only that “you can’t rule it [that a firearm was discharged from

the vehicle at Pine and Princess] in and you can’t rule it out.” N.T. at 386.

Nor could such evidence provide any insight into the order of gunfire

between Appellant and the passengers inside the car, if such exchange were

assumed arguendo.      The crime scene yielded no spent casings or other

evidence of gunfire originating from the vehicle.




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     Further corroborating the eyewitness accounts of Appellant as the lone

or initial gunman was the testimony of forensic pathologist Michael Johnson,

M.D. According to Dr. Johnson, his autopsy of Decedent revealed multiple

lesser wounds surrounding the bullet wound to the head. These wounds to

Decedent’s head and upper right shoulder, called “pseudo stippling,” were

caused when the fatal bullet first went through the passenger side window

and projected small pieces of glass at high speed into Decedent.     N.T. at

323-24.   This proof of a rolled-up passenger side window made it highly

improbable, the Commonwealth argued, that Decedent was hanging out that

same window firing shots into the crowd on the corner when Appellant fired

at the vehicle. N.T. at 552-53.

     Appellant presented the testimony of several witnesses. 21 year-old

Leonard Smith testified that he was sitting alone on a porch where

neighborhood youth like to meet when he heard a set of two or three shots

fired. N.T. at 430. He had been with Troyvon Breeland 30 minutes earlier

but left Breeland at a store. Id. As he was running away from the porch he

heard another two or three shots from “probably a different gun . . .

[because] the gunshots [were] way louder.”     N.T. at 429-30.   Smith then

clarified that he had seen the first set of shots as coming from the vehicle

but did not see where the second set of shots came from. N.T. at 432.

     On cross-examination, Smith asserted that he plainly saw Decedent’s

vehicle slam on its brakes at the corner and open fire, but he did not recall

seeing either Troyvon Breeland or Appellant at that location at that time.

                                   - 17 -
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N.T. at 432. He could not name anyone who was outside in the area when

the shooting happened, even though he admitted he frequented the location.

N.T. at 437.

      Eyewitness Maria Rodriguez was driving on Princess Street and had

just passed through the Pine Street intersection when she heard gunshots

and called 911. N.T. at 443. Minutes before the shooting, she said, three

people sitting in a long, red, four-door car fitting the description of

Decedent’s car was behind her on Princess as they approached Pine Street,

beeping its horn and swerving impatiently, as if to signal for her to hurry up.

N.T. at 444. While she was stopped alongside the barbershop at a red light

along, she noticed Decedent’s vehicle turn left onto an alleyway running

parallel to Pine. N.T. at 445. Moments later, she saw the car on Pine Street

stopping at a red light as her light turned green. Id.

      As Rodriguez drove through the intersection, she looked in her rear

view mirror and saw Decedent’s vehicle turning quickly back onto Princess in

the direction from where they came. Id. She wondered what their rush was

all about when she heard two gunshots. N.T. at 446. She then saw sparks

or a flash coming from inside the car directed toward the barbershop and

she kept going to get away from the danger. Id.

      On    cross-examination,    the   prosecutor       refreshed   Rodriguez’s

recollection with a copy of the statement she gave to police at the station on

the day of the shooting. Relying on her statement in which she described

seeing two rather than three people in Decedent’s car, she changed her

                                    - 18 -
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testimony to say “I did see two,” but insisted that they were “moving

around.” N.T. at 451. In her statement to police, she also denied seeing

sparks or a flash from the car, which caused her to doubt the testimony she

had just given:

     Q: You did not see any sparks?

     A: I can’t remember.

     Q: If the transcript says you didn’t, then does that – was that
     back when it was fresher in your mind?

     A: Yeah, that was – I mean, that was a lot closer than now.

     Q: So you don’t remember whether you saw sparks now?

     A: (No audible response).

     Q: Am I correct?

     A: I remember sparks from the car. I have it that I don’t, but I
     do remember sparks coming from the car.

     Q: But you are not sure, are you?

     A: No.

N.T. at 454-55.

     On redirect, Rodriguez read a statement she had given to police during

an interview at her home and testified she had indicated shots were fired

from the car. N.T. at 456. On recross, defense counsel asked Rodriguez to

read a different portion of her statement and then asked if it was not

possible that she had attributed shots to the men in the car simply because

they had subjected her to their erratic and aggressive behavior just



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moments earlier.    N.T. at 459-460.         After remaining silent for several

requests for an answer, Rodriguez said “Well, I am not so sure. I am trying

to remember that day.”       N.T. at 460.        Finally, on both recross and

subsequent questioning by the court, Rodriguez testified that she heard the

first shot and only then looked in her rearview mirror to observe the

developing situation at the Princess/Pine intersection. N.T. at 457,463.

       Troyvon Breeland, 21 year-old cousin to Appellant and eyewitness to

the events at issue, also testified as a defense witness.        Breeland said

Appellant and he were standing across Pine Street from the barbershop

while others were gathered near the barbershop corner. N.T. at 468. Just

hanging out while Appellant was texting on his phone, Breeland testified, he

saw the same burgundy car he had seen several times that day come down

Pine again and begin to turn the corner. N.T. at 468, 471-72. This time,

however, he heard someone say something from the car. N.T. at 469. All

the car windows were down, Breeland said, which enabled him to see the

front seat passenger going toward the glove compartment and then turn

toward the crowd while holding a gun. N.T. at 470.

       Breeland called Appellant’s name as he saw Appellant turn toward

Justin and reach for his hip as Decedent leaned out the window holding a

gun.   N.T. at 471-74.   Breeland heard Decedent fire two shots and saw a

flicker out of the corner of his eye.   N.T. at 472.    He turned to check on

Appellant and witnessed him take a gun from Justin Franklin’s pants.        Id.

Breeland testified that Appellant “was scared to shoot back[,]” but he

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assumed Appellant fired the gun because he “heard three shots go off” as he

was running from the scene. Id. Breeland also testified that witness Sonyai

Lewis also fled the scene when she saw Decedent lean out the window with a

gun. N.T. at 476.

       On   cross-examination,   Breeland    admitted   he   had   given   police

conflicting three different accounts of the shooting over the course of the

investigation.   On the day after the shooting, he told police that he saw

nothing and fled at the sound of gunfire, which he could not attribute to

anyone.     N.T. at 477.   On the second meeting with the prosecutor and

detective, Breeland was accompanied by counsel when he identified

Appellant as the only shooter. According to his statement that day, no shots

came from the car and Decedent never displayed a gun. N.T. at 485-86. In

his third statement, he modified his account again to say he saw Decedent

holding a gun but never saw him shoot it, although he said he may have

seen a flicker from the car. N.T. at 486. At trial, Appellant testified that he

lied in his first two statements but was now telling the truth. N.T. at 488.

He denied trying to restore his reputation in the neighborhood after being

labeled a “rat” for naming Appellant as the sole shooter, and he dismissed

the notion that he was now covering for his cousin, Appellant. N.T. at 487,

488.

       Another inconsistency between Breeland’s pretrial and trial versions of

the shooting involved the number of men inside the car. Prior to testifying

on direct that three men rode in the car, Breeland had told authorities he

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saw only two men. N.T. at 481. He explained at trial that he never reported

a third man in the back seat because he did not see the man do anything

and, therefore, thought that information would be irrelevant.            Id.     He

modified his position, however, because the third man may have fired a gun

as he saw the man “moving” in the back seat.            Id.    He conceded the

prosecutor’s follow-up point, however, that by his own definition such an

observation, if true, would have made the man “significant” enough to report

in the first instance. N.T. at 482.

      From this record, we can discern no reason to disturb the jury’s

determination that the Commonwealth disproved Appellant’s self-defense

defense to the charge of murder in the third degree beyond a reasonable

doubt. While testimonies differed among young witnesses coping with the

ever-present    threat   of   rivalry-based,   retaliatory    violence   in    their

neighborhood, it was within the jury’s sole preserve to assess the credibility

of these witnesses in carrying out its obligation to make findings of fact. In

so doing, it elected to credit the testimonies of the multiple eyewitnesses

who accused Appellant of firing a handgun at Decedent without provocation.

The forensic evidence, moreover, was consistent with this narrative of an

Appellant who chose to fire upon rivals rather than allow them to pass

through his neighborhood without conflict.          Accordingly, because the

evidence as credited by the jury sufficed to convict Appellant of third-degree

murder, Appellant’s sufficiency claim fails.

      For the foregoing reasons, judgment of sentence is AFFIRMED.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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