J-A22001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                             Appellee

                        v.

DOMINIC J. FLEMISTER

                             Appellant               No. 1951 MDA 2015


           Appeal from the Judgment of Sentence September 17, 2015
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002037-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 08, 2016

        Dominic Flemister (“Appellant”) appeals the judgment of sentence

entered September 17, 2015 in the Dauphin County Court of Common Pleas

following his jury trial convictions for attempted murder,1 aggravated

assault,2 and firearms carried without a license.3   After careful review, we

affirm.

        The trial court summarized the underlying facts of this matter as

follows:



____________________________________________


1
    18 Pa.C.S. § 901.
2
    18 Pa.C.S. § 2702.
3
    18 Pa.C.S. § 6106.
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            In late April[] 2014, James Hill, a friend of [Appellant],
     known by the nickname “Kool Aid” or “Laid”, saw [Appellant]
     arguing with another person at an after-hours club on 19th Street
     in Harrisburg.     On the same evening, after witnessing the
     argument at the club, Hill next saw [Appellant] get out of his
     black Chrysler in the area of 17th and Swatara Streets and
     continue the argument with the same person. As Hill was
     walking on 17th Street[,] he heard two shots. Hill looked in the
     direction of the shots and saw [Appellant] get into his car and
     pull off. Hill walked several blocks to his cousin’s house where
     he sat on the porch. About 10-20 minutes later, [Appellant]
     called out to Hill. The two spoke in an alleyway on Swatara
     Street. [Appellant] told Hill that the “other guy”, the victim, had
     tried to take a swing at him and that [Appellant] “had to do
     somethin’ to him” or “somethin’ had to be done to him”. As they
     spoke in the alleyway, Hill observed that [Appellant] had a gun.
     Hill did not contact police because Hill was friends with
     [Appellant] and did not want to “rat him out.” Hill spoke to
     police after they contacted him through his girlfriend.

            On April 25, 2014, at 3:43 a.m., while on patrol in the area
     of 17th and Derry Streets in a marked police vehicle, []
     Harrisburg Police Officer Angel Diaz heard a woman screaming.
     Officer Diaz activated the emergency equipment on the police
     vehicle and pulled toward South 17th and Swatara Streets where
     he saw the woman in the street. Officer Diaz saw a person, later
     identified as Rodney Dunbar, lying on his back on the porch at
     411 South 17th Street bleeding profusely from the groin. Officer
     Diaz spoke to Mr. Dunbar to keep him awake until emergency
     personnel arrived. Officer Diaz accompanied Mr. Dunbar in the
     ambulance en route to the Hershey Medical Center. During the
     ambulance ride, Dunbar stated, “they tried to kill me.”

           Brianna Chambers, Rodney Dunbar’s[] girlfriend[,] lived
     with him at the 400 Block of 17th Street. On the night of the
     incident, while she was on the porch, she observed [Appellant]
     and another person approach Dunbar. Approximately ten feet
     from the porch, a fight broke out between Dunbar and
     [Appellant]. Ms. Chambers heard the sound of a gunshot from
     the location of the fighting. Ms. Chambers observed neighbors
     in the area at the time although they were apart from the fight
     and did not participate. Upon realizing that Dunbar had been
     shot, Ms. Chambers began screaming and called 911.



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           From the scene, police collected a shell casing from a
     revolver. Pennsylvania State Police records reflect that on April
     25, 2014, [Appellant] did not possess a valid license to carry a
     firearm.

           Rodney Dunbar sustained a gunshot wound to the left
     thigh which caused obliteration of multiple femoral vessels for
     which he underwent multiple surgeries for artery repair as well
     as blood transfusions.

            On the morning after the shooting, on April 2[5], 2014,
     Harrisburg Police Detective Ryan Neal met with Brianna
     Chambers.     From a photo array, Ms. Chambers identified
     [Appellant] as the person who fought with and shot Rodney
     Dunbar. In a second photo array, Ms. Chambers identified an
     individual named Najee Banks as the person [who] accompanied
     [Appellant]. Ms. Chambers did not identify Najee Banks as a
     person who fought with [Appellant]

           Because Mr. Dunbar had undergone surgery, Detective
     Neal had only brief contact with him in the initial days following
     the shooting. In one of those early visits, on April 26, 2014, in
     response to a question as to whether he recognized anyone in
     the photo array, Dunbar circled [Appellant’s] picture. Detective
     Neal noted on the picture “Unable to sign due to the
     circumstances.” In a subsequent visit, Detective Neal again
     showed Dunbar a photo array. Dunbar circled a picture of
     [Appellant] and stated, “That’s the boy that shot me.” When
     Detective Neal asked Dunbar “who is that guy that is circled?”
     Dunbar responded, “Kool Aid.” Dunbar signed and noted the
     date and time on the photo array. Detective Neal asked, “Now
     as far as this Kool Aid guy, how certain are you that this is the
     person that shot you?” to which Dunbar responded “Yeah, I’m
     100 (sic) for sure.”

           At trial, in response to questioning by the prosecutor,
     Rodney Dunbar acknowledged only that he recall[ed] being shot
     on the night in question, [that he had] to undergo multiple
     surgeries[,] and that he remained hospitalized for approximately
     one month. After proper foundation, the [c]ourt permitted the
     prosecutor to treat Mr. Dunbar as a hostile witness. After
     Dunbar’s refusal to answer questions at trial, the [c]ourt directed
     that he cooperate [by] reading the transcribed recorded
     statement he gave Detective Neal, or, in the alternative, allow
     the prosecutor to read the transcript into evidence. Dunbar


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       reluctantly cooperated with the reading.     In the transcribed
       recorded statement, Dunbar stated,

          We were all at the crib playing cards and music. So I left
          2:00 (sic) to go to Forever Nights. So I seen him, seen
          Kool Aid at Forever Nights. We had some words. So after
          that I left. Walking to, walking to back to my house. So I
          seen Kool Aid come out, hop out, hop out of this black,
          black car. He came up to me talkin’ about, oh yeah you
          wanna act tough now? You wanna act tough shit? I was,
          like, what’s up, and that’s when we start. We start tearin
          it. And then after that everything was done. He felt some
          type of way. He shot at me. And that’s when I ran to the
          porch and laid down. And that’s when my baby mom[4]
          called the cops, called the ambulance.

            In the statement, Dunbar told Detective Neal that
       [Appellant] pulled the gun from his pocket. [Appellant] shot
       Dunbar from a distance of 15-20 feet.

             Around mid-day on April 28, 2014, Harrisburg Police and
       FBI Task Force Officer Richard Gibney received a phone call from
       [Appellant’s] cousin, William Flemister. Officer Gibney had dealt
       with William in the past and knew of [Appellant]. William
       Flemister related that he saw on the internet that Harrisburg
       Police wanted [Appellant]. William Flemister stated that he
       would have [Appellant] call Officer Gibney.

             [Appellant] called Officer Gibney at approximately 3:15
       p.m. that day. [Appellant] stated that he did not shoot anyone.
       Officer Gibney urged [Appellant] to meet with him and lead
       detective Ryan Neal. In the phone conversation, [Appellant] told
       Officer Gibney of his whereabouts on the night of the incident,
       up to the point of his going to a pizza shop at 17 th and Derry
       Streets at 1:45 a.m. [Appellant] gave no information about his
       whereabouts after 1:45 a.m. [Appellant] told Officer Gibney that
       he knew Rodney Dunbar and that they had an altercation a few
       weeks before because he heard that Dunbar was spreading
       rumors about him. [Appellant] made no further contact with

____________________________________________


4
 The term “baby-momma” or “baby mom” refers to a woman who is the
mother of a man’s child, although not necessarily married to that man.



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        Officer Gibney.     Officers apprehended [Appellant] on May 20,
        2014.

Trial Court Pa.R.A.P. 1925(a) Opinion, February 22, 2016 (“1925(a)

Opinion”), pp. 2-7 (internal record citations and footnote omitted).

        Following a trial that occurred on August 19 and 20, 2015, the jury

convicted Appellant as discussed supra. On September 17, 2015, the trial

court imposed an aggregate sentence of 20-40 years’ incarceration.5         This

timely appeal followed.6

        Appellant raises the following three (3) claims for our review:

        1. Where the shooter was 15-20 feet away from the victim and
        the victim was shot in the leg, is there intent to kill?

        2. Whether the [j]ury’s finding of guilt on count 1, [c]riminal
        [a]ttempt – [m]urder of the [f]irst [d]egree, is against the
        weight of the evidence when the victim did not remember who
        shot him and no one saw who shot the victim[?]

        3. Whether the [j]ury’s finding of guilt on count 2, [a]ggravated
        [a]ssault, is against the weight of the evidence when the victim
        did not remember who shot him and no one saw who shot the
        victim[?]

Appellant’s Brief, p. 6.




____________________________________________


5
   Specifically, the trial court sentenced Appellant to 20 to 40 years’
incarceration on the attempted murder conviction, 9 to 18 years’
incarceration on the aggravated assault conviction to be served concurrently
to the attempted murder conviction, and a further 3½ to 7 years’
incarceration on the firearms not to be carried without a license conviction,
also to be served concurrent to the attempted murder conviction.
6
    Both the trial court and Appellant complied with Pa.R.A.P. 1925.



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      First, Appellant challenges the sufficiency of the evidence proffered by

the Commonwealth to convict him of attempted murder.          See Appellant’s

Brief, pp. 14-23. Specifically, Appellant argues the Commonwealth failed to

prove beyond a reasonable doubt that he intended to kill the victim.        Id.

This claim fails.

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

      The standard we apply in reviewing the sufficiency of the
      evidence 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

      The Crimes Code provides:




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J-A22001-16


      (a) Definition of attempt.–A person commits an attempt
      when, with intent to commit a specific crime, he does any act
      which constitutes a substantial step toward the commission of
      that crime.

18 Pa.C.S. § 901. “A person may be convicted of attempted murder if he

takes a substantial step toward the commission of a killing, with the specific

intent in mind to commit such an act.” Commonwealth v. Jackson, 955

A.2d 441, 444 (Pa.Super.2008) (internal citations and quotations omitted).

“The substantial step test broadens the scope of attempt liability by

concentrating on the acts the defendant has done and does not any longer

focus on the acts remaining to be done before the actual commission of the

crime.”    Id.   “[A]ttempted murder requires an intent to bring about that

result described by the crime of murder (i.e., the death of another).”

Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.2004). “The

mens rea required for first-degree murder, specific intent to kill, may be

established solely by circumstantial evidence.” Jackson, 995 A.2d at 444.

“The law permits the fact finder to infer that one intends the natural and

probable consequences of his acts.” Id. “The offense of attempt to kill is

completed by the discharging of a firearm at a person with the intent to kill,

despite    the   fortuitous   circumstances   that   no   injury   is   suffered.”

Commonwealth v. Mapp, 335 A.2d 779, 781 (Pa.Super.1975) (necessary

intent found for attempted murder where defendant shot at victim and

missed).    Additionally, 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” required for a first-degree murder

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conviction. See Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.2007);

Commonwealth v. Cousar, 928 A.2d 1025, 1034 (Pa.2007) (“a specific

intent to kill may be inferred from the use of a deadly weapon on a vital part

of a victim’s body.”).     Further, evidence of flight is admissible for the

purpose of establishing guilty knowledge.     Commonwealth v. Gooding,

649 A.2d 722, 726 (Pa.Super.1994) (citing Commonwealth v. Jones, 319

A.2d 142, 149 (Pa.1974)).

      Here, viewing all of the evidence in the light most favorable to the

Commonwealth, there was sufficient evidence for the jury to find that

Appellant used an unlicensed handgun to inflict injury on a vital part of the

victim’s body.   Thus, we do not hesitate to find that there was sufficient

evidence to enable the fact-finder to find every element of attempted

murder beyond a reasonable doubt. This claim fails.

      Appellant’s second and third issues raise claims that the jury’s verdict

was against the weight of the evidence. See Appellant’s Brief, pp. 24-34.

These claims lack merit.

      The denial of a new trial based on a lower court’s determination that

the verdict was not against the weight of the evidence is one of the least

assailable reasons for granting or denying a new trial. Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa.2013).        This Court reviews weight of the

evidence claims pursuant to the following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no

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J-A22001-16


       obligation to view the evidence in the light most favorable to the
       verdict winner. An allegation that the verdict is against the
       weight of the evidence is addressed to the discretion of the trial
       court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. A trial judge must
       do more than reassess the credibility of the witnesses and allege
       that he would not have assented to the verdict if he were a
       juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice, 7 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).            Moreover, appellate review of a weight


____________________________________________


7
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).




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J-A22001-16



claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.        Widmer, 744 A.2d at 753.     When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

       Simply stated, the jury’s verdict in this matter illustrates that the jury

found credible the witness testimony regarding Appellant’s conduct prior to,

during, and after the shooting. Our review of the trial transcript reveals the

trial court did not abuse its discretion in denying a new trial based on the

weight of the evidence.8         Accordingly, Appellant’s weight of the evidence

claims fail.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2016
____________________________________________


8
   Appellant’s reliance on the victim’s reluctance to testify at trial is
misplaced.       As the Commonwealth properly notes, victim/witness
recantation is not uncommon in matters of violent street crime. In any
event, the victim’s reluctance did not prevent the jury from finding Appellant
guilty of the crimes with which he was charged.



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