J-A23006-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
ANTHONY HARVEY,                           :
                                          :
                  Appellant               : No. 1192 WDA 2013

             Appeal from the Judgment of Sentence July 3, 2013,
                  Court of Common Pleas, Cambria County,
              Criminal Division at No. CP-11-CR-0000167-2012

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED SEPTEMBER 19, 2014

     Anthony Harvey (“Harvey”) appeals from the July 3, 2013 judgment of

sentence entered by the Cambria County Court of Common Pleas for his

involvement in the shooting death of J-Quan Lewis (“Lewis” or “the victim”).

We affirm.

     The trial court summarized the facts adduced at the joint trial held for

Harvey and his co-defendant, Marquis Neal (“Neal”), as follows:

             [A]t approximately 11 p.m. on September 30,
             2011[,] Harvey and Lewis were drinking at Edder’s
             Den bar in the Oakhurst section of Johnstown.
             Harvey and Lewis got into an argument at the bar
             and were told to ‘take it outside.’ The pair, along
             with other patrons, left the bar and a fight ensued
             outside the building with Lewis getting the better of
             Harvey. Neal arrived during the fight and along with
             others[,] broke up the fight. Neal assisted the beaten
             Harvey into a minivan and the two left the bar.
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          The following morning Neal awoke at approximately
          10 a.m. took two Percocet pills and one Xanax pill,
          none of which were prescribed to him, and drank
          approximately one-half of a 750ml bottle of vodka.
          He then left the apartment he was staying at in the
          Oakhurst Homes and went in search of marijuana.
          He made several stops at various apartments in the
          Oakhurst Homes but was unable to secure any
          drugs.

          At approximately 2 p.m.[,] while Neal was walking
          through the Oakhurst Homes he saw Lewis and
          Hakeem Horton (Horton) walking towards him. As
          they approached[,] Neal asked Lewis if they were
          [alright] from the night before and if there were any
          hard feelings. Lewis either said ‘no we aren’t’ and
          attempted to shoulder past Neal or simply attempted
          to shoulder past him[,] at which point Neal drew a
          handgun from his windbreaker and fired at Lewis
          striking him in the upper right arm with the round
          then entering and eventually exiting Lewis’ chest.

          Lewis turned to run and Neal pursued him firing
          several more shots, one of which struck Lewis in the
          back, passed through his heart, and exited through
          his chest. At this point Lewis fell and Neal walked up
          to his prone body and rolled him over. Lewis said
          ‘please no’ at which time Neal fired again with the
          third round entering Lewis’ head. Neal then knelt
          beside Lewis and searched his pockets. Neal then
          fled into the street where he got into a parked
          minivan driven by Harvey and the two fled the
          scene.

          The minivan was eventually recovered in Pittsburgh,
          Pennsylvania several days later. Harvey was
          apprehended in Chester, Pennsylvania on November
          24, 2011, and eventually returned to Johnstown
          where he was formally charged as an accomplice to
          Lewis’ murder. Neal was apprehended on March 6,
          2012, in Gloucester County, New Jersey when during
          a routine stop he provided false information to police
          there. While being transported to the Gloucester



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            County police department[,] Neal was informed he
            would be fingerprinted and those prints used to
            identify him[,] at which point he informed the
            officers he was wanted by the United States Marshals
            for murder. Neal was eventually extradited to
            Pennsylvania and formally charged in connection
            with Lewis’ murder.

            During the trial[,] the Commonwealth presented
            telephone records of cell phones that were identified
            as being used by Neal and Harvey. These records
            revealed 73 text messages or phone calls between
            the two on September 30, 2011[,] and 23 text
            messages or phone calls between them during the
            early morning and early afternoon of October 1,
            2011. There were five contacts between noon and 1
            p.m. that day and the final contact between the
            phones was 28 minutes before the shooting. Based
            on these contacts the Commonwealth contended that
            Neal and Harvey had conspired to kill Lewis. Neal
            argued that he did not intend to kill Lewis[,] but
            when Lewis shouldered past him he panicked and
            thought Lewis meant to attack him resulting in Neal
            defending himself with the [handgun]. Neal argued
            that the combination of alcohol and drugs rendered
            him incapable of forming the specific intent to
            commit murder and explained his state of mind and
            mistaken belief that Lewis intended to attack him.

Trial Court Opinion, 10/4/13, at 3-5.

      After a six-day trial, the jury returned a verdict finding Neal guilty of

third-degree murder, flight to avoid apprehension, and two counts of

aggravated assault.   The jury convicted Harvey of voluntary manslaughter

and one count of aggravated assault as Neal’s accomplice, and flight to avoid




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apprehension and hindering apprehension as a principal actor.1        The trial

court sentenced Harvey on March 5, 2013 to an aggregate term of 9½ to 25

years of incarceration.   On March 15, 2013, Harvey filed a post-sentence

motion challenging the trial court’s ruling allowing the Commonwealth to

amend the criminal information during trial; the sufficiency of the evidence

to convict him of voluntary manslaughter; the sufficiency of the evidence to

prove that he was Neal’s accomplice; the trial court’s ruling permitting

evidence of a prior bad act, i.e., the fight between Harvey and the victim the

night before the victim’s death; and the sufficiency of the evidence to

convict him of hindering apprehension and flight to avoid apprehension.

Following argument, the trial court denied the motion on July 3, 2013.

      On July 22, 2013, Harvey filed a timely notice of appeal, followed by a

court-ordered concise statement of errors complained of on appeal. The trial

court issued a responsive opinion pursuant to Pa.R.A.P. 1925(a) on October

4, 2013.

      On appeal, Harvey raises the following issues for our review:

      I.    Whether the court erred in denying Appellant
            Harvey’s petition for a writ of habeas corpus
            regarding [Harvey’s] alleged accomplice liability in
            the case?




1
   18 Pa.C.S.A. §§ 2503(a), 2702(a)(1), 306(b), 5126(a), 5105(a)(2). The
jury acquitted Harvey of first-degree murder (id. § 2502(a)), third-degree
murder (id. § 2502(c)), and aggravated assault with a deadly weapon (id. §
2702(a)(4)).


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      II.    Whether     the    court   erred    in allowing the
             Commonwealth to present evidence under Pa.R.E.
             404(b), i.e., evidence of the fight?

      III.   Whether    the     court erred in allowing   the
             Commonwealth’s motion to amend [the] information
             at the end of trial?

      IV.    Whether the court erred in allowing the jury to
             convict [Harvey] of voluntary manslaughter as an
             accomplice when the principal, [] Neal, was not
             convicted of voluntary manslaughter?

      V.     Whether the verdict of the jury was contrary to the
             weight and sufficiency of the evidence presented by
             the Commonwealth?

Harvey’s Brief at 6-7.

      We begin with Harvey’s first issue assailing the trial court’s denial of

his writ of habeas corpus. Our review of the argument raised reveals that he

is actually challenging the sufficiency of the evidence to prove that he acted

as Neal’s accomplice.2    See id. at 11-15.     As Harvey included a claim

challenging the sufficiency of the evidence in both his 1925(b) statement




2
   A claim that the trial court erred by denying a writ of habeas corpus
because the evidence presented at the preliminary hearing was insufficient
to hold the charge(s) over for court is not reviewable once the defendant has
been adjudged guilty. Commonwealth v. Lee, 662 A.2d 645, 650 (1995);
see also Commonwealth v. Melvin, __ A.3d __, 2014 WL 4100200, *24
(Pa. Super. Aug. 21, 2014) (“Once a defendant has gone to trial and has
been found guilty of the crime or crimes charged, […] any defect in the
preliminary hearing is rendered immaterial.”). Therefore, even if Harvey
had presented an argument in support of his habeas corpus claim, it would
not be reviewable by this Court.


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and his statement of questions involved section of his appellate brief, we will

review this issue.3

      “Whether sufficient evidence exists to support the verdict is a question

of law; our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013). We

review the evidence in the light most favorable to the verdict winner to

determine whether there is sufficient evidence to allow the jury to find every

element of a crime beyond a reasonable doubt. Commonwealth v. Cahill,

95 A.3d 298, 300 (Pa. Super. 2014).

            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 finder of fact while passing upon the
            credibility of witnesses and the weight of the


3
  The trial court decided the question of whether it erred by denying his writ
of habeas corpus. See Trial Court Opinion, 10/4/13, at 9-11. Because of
the standard by which we review a sufficiency claim, this does not hamper
our review. Moreover, it is well-settled law that we may affirm a trial court’s
decision on any ground, “even where those grounds were not suggested to
or known by the trial court.” Commonwealth v. Gatlos, 76 A.3d 44, 62
n.14 (Pa. Super. 2013).


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            evidence produced, is free to believe all, part or none
            of the evidence.

Id. (citation omitted).

      “A person is legally responsible for the conduct of another person

when […] he is an accomplice of such other person in the commission of the

offense.”   18 Pa.C.S.A. § 306(b)(3).       The law defines an accomplice as

follows:

            A person is an accomplice of another person in the
            commission of an offense if:

            (1) with the intent of promoting or facilitating the
            commission of the offense, he:

                (i) solicits such other person to commit it; or

                (ii) aids or agrees or attempts to aid such other
                person in planning or committing it; or

            (2) his conduct is expressly declared by law to
            establish his complicity.

Id. § 306(c).

      Proving a defendant’s guilt as an accomplice requires the satisfaction

of a two-prong test: (1) there must be evidence to show that the defendant

“intended to facilitate or promote the underlying offense” and (2) there must

be evidence that the defendant “actively participated in the crime or crimes

by soliciting, aiding, or agreeing to aid the principal[.]” Commonwealth v.

Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005) (citations omitted).

“Both requirements may be established wholly by circumstantial evidence.




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Only the least degree of concert or collusion in the commission of the

offense is sufficient to sustain a finding of responsibility as an accomplice. No

agreement is required, only aid.”       Id. (internal citations and quotation

omitted).

      Viewed in the light most favorable to the Commonwealth as the verdict

winner, the record reflects the following.     The night before the shooting,

Harvey and the victim engaged in a physical fight, which the victim won.

N.T., 1/9/13 (afternoon), at 78, 81-82. Harvey left with Neal in a maroon

van. Id. at 82-83. Harvey and Neal communicated 73 times by cellphone

through voice calls and text messages that night and on the day of the

murder.4 N.T., 1/11/13 (afternoon), at 100. The last such communication

took place only 28 minutes before Neal shot the victim. Id. at 102.

Immediately after shooting the victim, Neal ran to Harvey’s waiting car – the

maroon van – and the two sped off. N.T., 1/9/13 (afternoon), at 142-44;



4
    Although the cellphone numbers in question were not registered in
Harvey’s or Neal’s name, the circumstantial evidence presented supports a
finding that these were their phone numbers. Witnesses who had used the
numbers to call and speak with Harvey and Neal, respectively, provided the
phone numbers to the police. N.T., 1/11/13 (afternoon), at 54, 90. Jeremy
Rogers, who was friends with Neal, Harvey and the victim, testified that he
knew Harvey’s phone to be registered to a person named Amanda Keiper,
which was the name of the person to which Harvey’s alleged number was in
fact registered. Id. at 54, 64. Police were unable to locate the person to
whom Neal’s phone was registered, “Johnny Stroub,” and Detective Julie
Wagner testified that the given address of the named subscriber was at the
Galleria Mall. Id. at 98. Furthermore, “Johnny Stroub” had an email
address of NoPressure@gmail.com, and Neal’s girlfriend had a tattoo that
said “no pressure” on her neck. Id. at 104; N.T. 1/9/13 (afternoon), at 14.


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N.T., 1/10/13, at 156, 201.    The van belonged to Harvey’s girlfriend, Lisa

Carothers, who had let him use the van that day approximately an hour or

two before the shooting to go to the grocery store for her, but neither he nor

the van returned to her house that day.      N.T., 1/10/13, at 68, 70, 227.

Harvey abandoned the van in Pittsburgh.          Id. at 227; N.T., 1/11/13

(morning), at 32. Police ultimately located Harvey in Chester, Pennsylvania

almost two months after the shooting. N.T., 1/12/13, at 45.

      The evidence, although circumstantial, adequately proves that Harvey

aided Neal with the intent of promoting the murder. See Kimbrough, 872

A.2d at 1251; see also Commonwealth v. Causey, 833 A.2d 165, 173

(Pa. Super. 2003) (evidence that the appellant was the getaway driver when

his brother shot the victim is sufficient to prove that the appellant was his

brother’s accomplice in the shooting). As such, no relief is due.

      In his second issue on appeal, Harvey contends that the trial court

erred by permitting the Commonwealth to present evidence of the fight

between Harvey and the victim the night before the shooting because,

according to Harvey, it was prohibited by Pennsylvania Rule of Evidence

404(b).   Harvey’s Brief at 15-16.   Other than a passing reference to Rule

404(b), without including its text, Harvey cites to no law in support of this

contention.    Overlooking his clear violation of Rule 2119(a) of the

Pennsylvania Rules of Appellate Procedure, we find this issue meritless.




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      Rule 404(b) precludes the use of other crimes, wrongs, or acts to show

that the defendant acted in conformity when committing the instant crime.

Pa.R.E. 404(b)(1).     Such evidence may be admissible, however, for other

purposes, including but not limited to “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or accident.”

Pa.R.E. 404(b)(2).

      The trial court found that the fight was properly admitted as, inter alia,

proof of motive for the murder.     Trial Court Opinion, 10/4/13, at 13.    We

agree.5

            To be admissible to show intent or motive, the
            evidence must give sufficient ground to believe that
            the crime currently being considered grew out of or
            was in any way caused by the prior set of facts and
            circumstances. There must be a logical connection
            between the prior incident and the crime for which
            the accused is being tried. Important factors to be
            considered in making this determination include the
            proximity in time between the incidents; the
            similarity in the circumstances surrounding the
            incidents; and whether evidence of the prior crime is
            necessary to rebut the accused’s evidence or
            contention of accident, mistake or lack of required
            intent.

Commonwealth v. Camperson, 612 A.2d 482, 484 (Pa. Super. 1992)

(citations omitted).




5
    “The admission of evidence is committed to the sound discretion of the
trial court, and our review is for an abuse of discretion.” Commonwealth
v. Valcarel, 94 A.3d 397, 398 (Pa. Super. 2014) (citation omitted).


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      As stated above, the record reflects that Harvey and the victim fought

the night before the murder and that Harvey was on the losing end of that

fight. N.T., 1/9/13 (afternoon), at 78, 81-82. Harvey claimed that he was

completely uninvolved in the victim’s death, and just happened to be at

Oakhurst Homes when Neal shot the victim; Neal claimed that he shot the

victim out of fear for his own life – believing that the victim was reaching for

a gun. See N.T., 1/12/13, at 121, 123-24.

      There is no question that the victim’s murder could be viewed as

having been precipitated by the victim beating up Harvey the night before –

a possible revenge scenario. The incidents were close in time (only 14 hours

apart) and the fight was necessary to prove Neal’s intent (and thus, Harvey’s

intent as his accomplice) in committing the killing.     We therefore find no

abuse of discretion in the trial court’s determination that the evidence was

admissible as proof of motive.

      Next, Harvey asserts that the trial court erred by permitting the

Commonwealth to amend the criminal information, changing the charges of

aggravated assault from listing Harvey as an actor to an accomplice, on the

last day of trial. Harvey’s Brief at 16-18. The trial court found that Harvey

was not prejudiced by the amendment and is therefore due no relief. Trial

Court Opinion, 10/4/13, at 15.

      Pennsylvania Rule of Criminal Procedure 564 permits the trial court to

grant the Commonwealth’s motion to amend a criminal information “when



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there is a defect in form, the description of the offense(s), the description of

any person or any property, or the date charged, provided the information

as   amended    does   not   charge    an      additional   or    different   offense.”

Pa.R.Crim.P. 564.   If the trial court permits the Commonwealth to amend

the information, “the court may grant such postponement of trial or other

relief as is necessary in the interests of justice.” Id. “The purpose of Rule

564 is to ensure that a defendant is fully apprised of the charges, and to

avoid prejudice by prohibiting the last minute addition of alleged criminal

acts of which the defendant is uninformed.” Commonwealth v. Mentzer,

18 A.3d 1200, 1202 (Pa. Super. 2011) (quoting Commonwealth v.

Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006)).                We review this issue

“with an eye toward its underlying purposes and with a commitment to do

justice rather than be bound by a literal or narrow reading of the procedural

rules.” Id. (citation omitted). Thus, we

            look to whether the appellant was fully apprised of
            the factual scenario which supports the charges
            against him. Where the crimes specified in the
            original information involved the same basic
            elements and arose out of the same factual situation
            as the crime added by the amendment, the appellant
            is deemed to have been placed on notice regarding
            his alleged criminal conduct and no prejudice to
            defendant results.

Sinclair, 897 A.2d at 1222 (citation omitted).




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     This Court has identified the following relevant factors to determine

whether a defendant suffered prejudice as a result of the trial court’s grant

of the Commonwealth’s motion to amend:

           (1) whether the amendment changes the factual
           scenario supporting the charges; (2) whether the
           amendment adds new facts previously unknown to
           the defendant; (3) whether the entire factual
           scenario was developed during a preliminary
           hearing; (4) whether the description of the charges
           changed with the amendment; (5) whether a change
           in defense strategy was necessitated by the
           amendment; and (6) whether the timing of the
           Commonwealth’s request for amendment allowed for
           ample notice and preparation.

Mentzer, 18 A.3d at 1203 (citation omitted).

     The record reflects that the Commonwealth filed its original criminal

complaint on February 6, 2012, alleging, inter alia, that Harvey committed

one count of aggravated assault as Neal’s accomplice. Criminal Complaint,

2/6/12, at 3. On March 23, 2012, the Commonwealth charged Harvey by

criminal information with one count of aggravated assault as the principal

actor. Criminal Information, 3/23/12. The Commonwealth filed a motion to

amend the information on January 4, 2013, which the trial court granted,

resulting, in relevant part, in the addition of a second count of aggravated

assault, with Harvey again listed as the principal actor.      See Criminal

Information, 1/7/13.    It was not until the last day of trial, during the

testimony of the Commonwealth’s final witness, that the Commonwealth

sought to amend the information to list Harvey as an accomplice for the two



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aggravated assault charges. See N.T., 1/12/13, at 48-52. The trial court

granted   the   Commonwealth’s    request,   finding   that   Harvey   was   not

prejudiced by the amendment. Id. at 70.

      We agree with the trial court that Harvey suffered no prejudice by the

amendment of the information.     Harvey was on notice since the time the

Commonwealth filed the criminal complaint in the beginning of 2012 that it

was the Commonwealth’s theory that he acted as Neal’s accomplice in the

victim’s murder and aggravated assault.        The Commonwealth charged

Harvey with criminal homicide as Neal’s accomplice, but because of some

error by the Commonwealth (or, as the trial court aptly stated, the

Commonwealth’s sloppiness), the Commonwealth erroneously listed Harvey

as the principal actor in the aggravated assault charges.      The amendment

did not change the underlying facts – indeed, the facts as presented since

the inception of the case solely support a finding that Harvey acted as Neal’s

accomplice in committing the aggravated assaults.

      The only factor that weighs in favor of Harvey – which is also the only

argument Harvey makes in his brief on appeal – relates to the timing of the

request to amend.    Harvey asserts he was necessarily prejudiced because

the Commonwealth requested the amendment on the last day of trial.

Harvey’s Brief at 18. Although Harvey claims “there was simply no time for

postponement of trial or other relief in the interest of justice,” the record

does not reflect that Harvey asked for a continuance or postponement of



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trial when the trial court permitted the Commonwealth to amend the

information. Moreover, case law reveals that a late request to amend by the

Commonwealth is not per se prejudicial.      See, e.g., Mentzer, 18 A.3d at

1203 (affirming trial court’s finding of no prejudice where Commonwealth

sought to amend information after trial but before sentencing).

     Harvey was informed of the criminal acts he was alleged to have

committed and the factual scenario underlying those acts, and thus the late

amendment to the criminal information does not offend the purpose of Rule

564. See id. at 1202; Sinclair, 897 A.2d at 1222. We therefore find no

error in the trial court’s decision to grant the Commonwealth’s request to

amend Harvey’s criminal information.

     As his fourth issue on appeal, Harvey argues that the trial court erred

by denying his post-sentence motion for a judgment of acquittal for

voluntary manslaughter. Harvey’s Brief at 18. At its base, the challenge is

to the sufficiency of the evidence to convict him of voluntary manslaughter.

Harvey’s Brief at 18-21.     He presents two theories in support of his

argument:   (1) the elements of the crime of voluntary manslaughter were

not established, and (2) Harvey was alleged to have acted as Neal’s

accomplice and Neal was convicted of third-degree murder, rendering it

“impossible” for Harvey to have committed voluntary manslaughter as the

getaway driver. Id. The trial court found the conviction was proper. Trial

Court Opinion, 10/4/13, at 17-18.



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      We have already concluded that Harvey acted as Neal’s accomplice in

the victim’s murder.       See supra, pp. 8-9.          Thus, Harvey is criminally

responsible for the acts committed by Neal.            See 18 Pa.C.S.A. § 306(a),

(b)(3). Our review of the record reveals that Harvey is correct that there

was   insufficient     evidence   to   convict   him     (or   Neal)   of   voluntary

manslaughter.6       There was, however, sufficient evidence to convict him of

first-degree murder.      “A criminal homicide constitutes murder of the first

degree when it is committed by an intentional killing.”                18 Pa.C.S.A.


6
   “A person who kills an individual without lawful justification commits
voluntary manslaughter if at the time of the killing he is acting under a
sudden and intense passion resulting from serious provocation by: (1)
the individual killed; or (2) another whom the actor endeavors to kill, but he
negligently or accidentally causes the death of the individual killed.”
18 Pa.C.S.A. § 2503(a) (emphasis added).

            Emotions encompassed by the term ‘passion’ include
            anger, rage, sudden resentment or terror which
            renders the mind incapable of reason. Whether the
            provocation by the victim was sufficient to support a
            heat of passion defense is determined by an
            objective test: whether a reasonable man who was
            confronted with the provoking events would become
            impassioned to the extent that his mind was
            incapable of cool reflection. Significantly, we have
            clarified that both passion and provocation must be
            established, and that if there be provocation without
            passion, or passion without a sufficient cause of
            provocation, or there be time to cool, and reason has
            resumed its sway, the killing will be murder.

Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012) (internal citations
and quotations omitted), cert. denied, 134 S. Ct. 178 (U.S. 2013). Absent
here is sufficient evidence of “passion” or “provocation” without a cooling off
period since approximately 14 hours elapsed between the provocation and
the killing.


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§ 2502(a). “Specific intent to kill can be established through circumstantial

evidence, such as the use of a deadly weapon on a vital part of the victim’s

body.” Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008).

        The evidence presented at trial, viewed in the light most favorable to

the Commonwealth, reveals that Neal shot the victim with a deadly weapon

multiple times. N.T., 1/10/13, at 105.        Neal then stood over the victim and

shot him in the head as the victim pleaded for his life, killing him. Id. at

107. Therefore, all elements of first-degree murder are met.7

        “Whether an accomplice possessed the same intent to kill as his co-

conspirator     may    be   inferred   from     words,   conduct,   the   attendant

circumstances including the actions taken after the killing and all reasonable

inferences that follow from them.”        Commonwealth v. Rios, 721 A.2d

1049,    1053   (Pa.   1998).     “[F]light     and   concealment   can constitute

circumstantial evidence of consciousness of guilt.”           Commonwealth v.



7
   Neal presented evidence at trial that he consumed drugs and alcohol the
morning of the shooting, rendering him intoxicated to the point of losing his
faculties and sensibilities. See N.T., 1/12/13, at 101-03, 122-23. This
evidence of a diminished capacity permitted the jury to reduce Neal’s
conviction from first-degree murder to third-degree murder.          See 18
Pa.C.S.A. 308 (“evidence of [voluntary] intoxication or drugged condition of
the defendant may be offered by the defendant whenever it is relevant to
reduce murder from a higher degree to a lower degree of murder”);
Commonwealth v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013) (“A defense of
diminished capacity negates the element of specific intent, and thus
mitigates first-degree murder to third-degree murder. […] [T]o prove
diminished capacity due to voluntary intoxication, a defendant must show
that he was overwhelmed to the point of losing his faculties and
sensibilities.”), cert. denied, 134 S. Ct. 2725 (U.S. 2014).


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Housman, 986 A.2d 822, 831 (Pa. 2009) (citation omitted). In the case at

bar, Neal ran to Harvey’s waiting car immediately after shooting the victim

and the two sped off. N.T., 1/9/13 (afternoon), at 142-44; N.T., 1/10/13, at

156, 201.   Harvey abandoned the van in Pittsburgh and fled to Chester,

Pennsylvania, where police located him almost two months later.         Id. at

227; N.T., 1/11/13 (morning), at 32; N.T., 1/12/13, at 45.        Based upon

Harvey’s actions following the murder, we conclude that he could have

properly been convicted of first-degree murder.

      The jury, however, chose to convict Harvey of voluntary manslaughter,

a verdict inconsistent with the evidence presented and the conviction of

Harvey’s accomplice, the principal actor. In relation to inconsistent verdicts,

our Supreme Court has stated:

            The question before us implicates the general issue
            of inconsistent verdicts, which, under longstanding
            federal and state law, are allowed to stand so long as
            the evidence is sufficient to support the conviction.

                                  *     *      *

            [A]lthough an inconsistent verdict constitutes jury
            ‘error,’ it is not at all clear whether the error was
            made at the expense of the Government or the
            defendant. Given this uncertainty, and the fact that
            the Government is precluded [by double jeopardy
            considerations] from challenging the acquittal, it is
            hardly satisfactory to allow the defendant to receive
            a new trial on the conviction as a matter of course.

                                  *     *      *




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            While recognizing that the jury’s verdict appears to
            be inconsistent, we refuse to inquire into or to
            speculate upon the nature of the jury’s deliberations
            or the rationale behind the jury’s decision. Whether
            the jury’s verdict was the result of mistake,
            compromise, lenity, or any other factor is not a
            question for this Court to review. We reaffirm that an
            acquittal cannot be interpreted as a specific finding
            in relation to some of the evidence, and that even
            where two verdicts are logically inconsistent, such
            inconsistency alone cannot be grounds for a new trial
            or for reversal.

Commonwealth v. Miller, 35 A.3d 1206, 1208, 1209, 1213 (Pa. 2012)

(internal citations and quotations omitted).

      The fact that Harvey’s conviction differs from that of Neal is also not

problematic.    In fact, our legislature has specifically stated that an

accomplice may be convicted in the absence of a conviction or even the

prosecution of the principal actor. 18 Pa.C.S.A. § 306(g).

      As the evidence presented supports a finding of Harvey’s guilt as an

accomplice in the victim’s murder, we find no basis to grant him the

acquittal he requests.

      As his final issue on appeal, Harvey raises a general challenge to the

weight and sufficiency of the evidence to support his convictions. Beginning

with his weight claim, we note that Harvey did not raise this either at

sentencing or    in   a   post-sentence   motion.   It   is   therefore waived.

Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478, 490

(Pa. Super. 2014).




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      His generalized challenge to the sufficiency of the evidence is likewise

waived. In his 1925(b) statement, Harvey frames his sufficiency claim as,

“Whether the verdict of the jury was contrary to the weight and sufficiency

of the evidence presented by the Commonwealth.”           1925(b) Statement,

8/13/13, at ¶ 5. This is insufficient to preserve a challenge to the sufficiency

of the evidence for appeal. As this Court has previously held:

             In order to preserve a challenge to the sufficiency of
             the evidence on appeal, an appellant’s Rule 1925(b)
             statement must state with specificity the element or
             elements upon which the appellant alleges that the
             evidence was insufficient. Such specificity is of
             particular importance in cases where, as here, the
             appellant was convicted of multiple crimes each of
             which contains numerous elements that the
             Commonwealth must prove beyond a reasonable
             doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

citations omitted). Failure to properly preserve a sufficiency claim results in

its waiver on appeal. Id.

      Regardless of waiver of his sufficiency claim, the only arguments he

raised in his brief on appeal challenge the sufficiency of the evidence to

convict him of voluntary manslaughter and aggravated assault.          Harvey’s

Brief at 21-25.    As we have already determined that the evidence was

sufficient to convict him of aggravated assault as an accomplice and

voluntary manslaughter by rejecting his judgment of acquittal argument, no

relief is due.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2014




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