J-S43012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

    CALVIN LAMAR NORRIS

                             Appellant              No. 1604 WDA 2017


      Appeal from the Judgment of Sentence imposed September 29, 2017
                 In the Court of Common Pleas of Mercer County
               Criminal Division at Nos: CP-43-CR-0001475-2016;
                            CP-43-CR-0001476-2017


BEFORE: STABILE, DUBOW, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                      FILED DECEMBER 11, 2018

        Appellant, Calvin Lamar Norris, appeals from the September 29, 2017

judgment of sentence imposing life in prison without parole for first degree

murder and a consecutive by 8½ to 20 years of incarceration for aggravated

assault. We affirm.

        Appellant’s convictions arose from two shootings that occurred around

11:30 p.m. on August 14, 2016.1 Victim Kimberly Odem testified that she

bought crack cocaine from Appellant earlier on the day of the crimes. The

crack turned out to be fake, and Odem and her boyfriend, deceased victim

Percy Godfrey, had an altercation with Appellant on the same evening, a few


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1  Unless another source is cited, we have relied on the facts recited in the
trial court’s March 15, 2018 opinion.
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hours prior to the shootings. Surveillance video from 10:30 on the evening

of the shootings depicted Appellant entering a convenience store appearing as

though he had been in an altercation.

      Just before she was shot on the northeast corner of New Castle Street

in Sharon, Pennsylvania, Odem heard someone call her name. She turned to

look, and Appellant opened fire, hitting Odem in the jaw, left hand, and

shoulder. Police recovered three nine-millimeter casings near the site of the

Odem shooting. Odem had known Appellant for approximately ten years, and

she consistently identified him as the shooter. Odem was hospitalized for two

months and, as of the time of trial, needed several additional surgeries.

      No eyewitness observed the fatal altercation between Appellant and

Godfrey, but it took place very shortly after the shooting of Odem. Neighbors

reported hearing two or three shots, a pause, and then an additional series of

shots fired. Police found Godfrey’s corpse roughly 150 feet from the site of

the Odem shooting.    Godfrey suffered bullet wounds in the leg and in the

abdomen. Both bullets entered Godfrey’s body from behind. The fatal shot

entered Godfrey’s left mid-back and exited the right front of his lower chest.

The bullets were not fired from point blank range. Police recovered eight spent

nine-millimeter casings approximately 62 feet from Godfrey’s body. Appellant

suffered a stab wound in the abdomen, and police found a knife in Godfrey’s

hand with Appellant’s blood on it. The convenience store surveillance footage




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from earlier in the evening did not depict Appellant bleeding from the

abdomen.

       Shortly after the shootings, Appellant knocked on the door of his aunt,

Regina Norris, who lived very near the crime scene.       There, he asked his

cousin, Alvin Hancock, Jr., to drive him to a hospital in Youngstown, Ohio,

rather than Sharon Regional Hospital. Appellant claimed he had been stabbed

after having oral sex with another man’s girlfriend. Appellant and Hancock

arrived at St. Elizabeth Hospital in Youngstown shortly after midnight on

August 15, 2016.        Surveillance video depicted Appellant walking across a

parking lot from Hancock’s car to the hospital entrance with no obvious

impairment.

       Corporal Randolph Guy of the Pennsylvania State Police interviewed

Appellant in the hospital at 7:20 a.m. on the morning of August 15, 2016 after

having interviewed family members of the shooting victims. Corporal Guy

wore plain clothes and did not give Appellant Miranda2 warnings.          The

interview lasted five to ten minutes. Appellant claimed he was stabbed a few

blocks from the hospital.

       Police retrieved a nine-millimeter Luger handgun from underneath some

other items on Norris’ front porch. DNA testing revealed that Appellant’s DNA

was on the gun. Crime lab analysis established that the 11 nine-millimeter



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2   Miranda v. Arizona, 384 U.S. 436 (1966).

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casings recovered from the scenes of the Odem and Godfrey shootings were

fired from the Luger handgun.

      Appellant filed pretrial motions seeking to suppress his statements to

police at the hospital and the results of a gunshot residue test performed at

the hospital, and seeking to admit evidence of Godfrey’s prior convictions.

The trial court denied suppression, permitted Appellant to introduce Godfrey’s

2013 terroristic threats conviction, and refused to permit introduction of

Godfrey’s 1989 involuntary manslaughter conviction. On July 18, 2017, a jury

found Appellant guilty of the aforementioned offenses. The trial court imposed

sentence on September 29, 2017, and this timely appeal followed.

      Appellant raises seven assertions of error:

      I.     Whether the trial court erred when it concluded that
             [Appellant] was not under custodial interrogation at the time
             he was questioned and made statements against his interest
             to Corporal Guy at St. Elizabeth’s Hospital when, at the time,
             he was under a police hold and a suspect in the shootings
             of Godfrey and Odem.

      II.    Whether the trial court erred when it concluded that
             [Appellant] was not under custodial interrogation and that
             his consent was voluntary when the Youngstown Police
             conducted a [Gun Shot Residue (“GSR”)] test on
             [Appellant’s] hands at St. Elizabeth’s Hospital when, at the
             time, he was under a police hold, a suspect in the shootings
             of Godfrey and Odem and under the effects of medication
             following surgery.

      III.   Whether the trial court erred when it denied [Appellant’s]
             request to introduce [Pa.R.E.] 404(b)(2)(B) character
             evidence of Godfrey in the form of a 1989 conviction of
             involuntary manslaughter in Ohio when self-defense was
             properly alleged.



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     IV.    Whether [Appellant] negated a conviction of first-degree
            murder when he presented the expert testimony of Dr. Karl
            Williams who opined that at the time of the shootings
            [Appellant] lost his sensibilities due to alcohol intoxication.

     V.     Whether there was sufficient evidence that [Appellant]
            acted in self-defense from Godfrey and whether the
            Commonwealth failed to prove [Appellant] was not acting in
            self-defense when [Appellant] was stabbed by Godfrey at
            the time of the shooting.

     VI.    Whether the Commonwealth produced sufficient evidence to
            prove [Appellant] formed the specific intent to commit
            murder of the first degree of Godfrey and whether
            [Appellant’s] voluntary intoxication and/or act of self-
            defense negated any intention to kill.

     VII.   Whether the Commonwealth produced sufficient evidence to
            prove [Appellant] formed the intent to commit aggravated
            assault on Odem when evidence was presented that showed
            [Appellant] acting in self-defense toward Godfrey.

Appellant’s Brief at 15-17 (Numeration ours).

     Appellant’s first two arguments challenge the trial court’s denial of his

motion to suppress evidence. We conduct our review as follows:

           [O]ur standard of review in addressing a challenge to a trial
     court’s denial of a suppression motion is limited to determining
     whether the factual findings are supported by the record and
     whether the legal conclusions drawn from those facts are correct.
     We are bound by the suppression court’s factual findings so long
     as they are supported by the record; our standard of review on
     questions of law is de novo. Where, as here, the defendant is
     appealing the ruling of the suppression court, we may consider
     only the evidence of the Commonwealth and so much of the
     evidence for the defense as remains uncontradicted. Our scope
     of review of suppression rulings includes only the suppression
     hearing record and excludes evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. Super. 2017).




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     First, Appellant argues the trial court erred in admitting the statements

he made to Corporal Guy because Corporal Guy subjected him to a custodial

interrogation without Miranda warnings.

            A police encounter becomes an arrest when, under the
     totality of the circumstances, the detention becomes so coercive
     that it is the functional equivalent of an arrest. The numerous
     factors used to determine whether a detention has evolved into
     an arrest include the cause for the detention, the detention’s
     length, the detention’s location, whether the suspect was
     transported against his or her will, whether physical restraints
     were used, whether the police used or threatened force, and the
     character of the investigative methods used to confirm or dispel
     the suspicions of the police. Custodial interrogation has been
     defined as questioning initiated by the police after a person has
     been taken into custody or otherwise deprived of his or her
     freedom of action in any significant way.             Further, an
     interrogation” occurs when the police should know that their
     words or actions are reasonably likely to elicit an
     incriminating response from the suspect.

Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006)(internal

citations and quotation marks omitted; emphasis in original).

     Corporal Guy was aware that Appellant was suspected in the shootings

of Odem and Godfrey, having visited the crime scene, spoken with other

officers, and interviewed victims’ family members. Supplemental Findings of

Fact, 6/7/17, at p. 12. Wearing plain clothes, he asked Appellant to explain

how he was stabbed. Partial Findings of Fact, 4/12/17, at ¶ 25. Appellant

told Guy that he believed he was stabbed somewhere near St. Elizabeth

Hospital in Youngstown while walking to his cousin’s house.      Id. at ¶ 22.

Appellant could not identify the cousin or the person who stabbed him. Id.

Corporal Guy was unaware that Appellant had an outstanding arrest warrant

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in Farrell, Pennsylvania, and that he did not believe he had authority to arrest

Appellant at the hospital in Ohio. Id. at ¶ 21. Nonetheless, Corporal Guy

would have made efforts to have Appellant detained had Appellant tried to

leave the hospital. Id. Appellant was not restrained or under guard, and the

interview lasted five to ten minutes. Id. at ¶¶ 21, 26. Appellant notes that

he was recovering from a major surgery (a bowel resection), heavily

medicated, and unable to leave the hospital for that reason.

      In Commonwealth v. Fento, 526 A.2d 784 (Pa. Super. 1987), appeal

denied, 535 A.2d 875 (Pa. 1988), the defendant was in a hospital emergency

room, confined to a bed, and receiving treatment after a single-car driving

accident. Id. at 785. The defendant confirmed that he was driving the vehicle

and that he drank several beers prior to driving.     Id. at 786.    The police

trooper noted the smell of alcohol on the defendant’s breath, bloodshot eyes,

and slurred speech.      Id.   The interview was part of routine accident

investigation. Id. at 787. The police officer did not suspect the defendant of

a crime until he noticed his eyes and the smell of alcohol. Id. The officer

sought and received permission from hospital personnel to interview the

defendant, the interview lasted five minutes, and Appellant was not under any

guard. Id. The Fento Court noted that the defendant became the focus of

an investigation when the officer noted the defendant’s obvious drunkenness,

but found no other evidence of a custodial interrogation. Id. The Fento Court

distinguished Commonwealth v. Fisher, 352 A.2d 26 (Pa. 1976), in which


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the defendant had been under guard for 48 hours before finally incriminating

himself during his third interview. Id.

      In Commonwealth v. Whitehead, 629 A.2d 142 (Pa. Super. 1993),

on the other hand, police had investigated the scene of an accident and

suspected the defendant of drunk driving prior to arriving at the hospital to

interview him.   The officer smelled alcohol on the defendant’s breath and

observed his staggering gait at the scene prior to placing the defendant on an

ambulance. Id. at 143. The officer specifically asked the defendant whether

he had been drinking. Id. He arrested the defendant at the conclusion of the

interview. Id. We concluded that the officer subjected the defendant to a

custodial interrogation:

             While the initial questions were general, we agree that the
      clear intent was to obtain incriminating admissions while appellee
      was not freely capable of leaving and was fearful of not
      cooperating. The statement was made after prompting and
      followed questions designed to obtain incriminating statements.
      No formal declaration of arrest is required in order for an individual
      to conclude that he is in custody.

Id. at 145.

      In view of the totality of the circumstances, we cannot conclude the trial

court erred in finding no custodial interrogation.     Instantly, Corporal Guy,

having been to the crime scene and spoken to several other officers, was

aware that Appellant was a suspect in the shootings of Odem and Godfrey.

Nonetheless, the interview was brief, it took place in a hospital to which

Appellant travelled of his own free will, and Corporal Guy did not prompt



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Appellant to discuss the shootings. Rather, he simply asked Appellant about

his injury. Police were not guarding or restraining Appellant in any way, and

Corporal Guy made no show of force. Corporal Guy did not arrest Appellant,

but would have made efforts to detain Appellant had Appellant attempted to

leave.   As in Fento, most of the circumstances weigh against a finding of

custodial interrogation.

      Furthermore, we observe that Appellant’s statement to Corporal Guy

was incriminating only insofar as it was an obvious falsehood, potentially

indicative of consciousness of guilt. Given the nature of Appellant’s statement,

and the overwhelming evidence of his guilt, we would conclude that any error

in admitting it was harmless beyond a reasonable doubt. “The doctrine of

harmless error is a technique of appellate review designed to advance judicial

economy by obviating the necessity for a retrial where the appellate court is

convinced that a trial error was harmless beyond a reasonable doubt.”

Commonwealth v. Thornton, 431 A.2d 238, 251 (Pa. 1981). “Its purpose

is premised on the well-settled proposition that ‘[a] defendant is entitled to a

fair trial but not a perfect one.’” Id. (quoting Lutwak v. United States, 344

U.S. 604 (1953)).

            Harmless error exists where: (1) the error did not prejudice
      the defendant or the prejudice was de minimis; (2) the
      erroneously admitted evidence was merely cumulative of other
      untainted evidence which was substantially similar to the
      erroneously admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.

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Commonwealth v. Hutchinson, 571 Pa. 45, 52–53, 811 A.2d 556, 561

(2002). Instantly, given Odem’s eyewitness testimony, and the ballistics and

DNA evidence, including Appellant’s DNA on the murder weapon and

Appellant’s blood on Godfrey’s knife, and Godfrey’s false account to his cousin

who drove him to St. Elizabeth’s hospital, Appellant’s statement to Corporal

Guy was insignificant in comparison to the overwhelming evidence of his guilt.

      Next, Appellant argues the trial court erred in admitting evidence of the

GSR test taken at St. Elizabeth. The record reveals that Appellant consented,

but he claims his consent was invalid because he gave it while he was

recovering from a major surgery and still under the effects of sedation and

painkillers. We need not address this issue on the merits because Appellant

does not challenge the sufficiency of the evidence that he was the

shooter. Indeed, his theory at trial and his arguments on appeal are that he

was defending himself against Godfrey’s knife assault and that he was too

intoxicated to form the specific intent to kill. Moreover, Appellant’s DNA was

on the gun recovered from Norris’s front porch, where Norris observed

Appellant shortly after the shootings.       Assuming without deciding that

Appellant’s consent to the GSR test was invalid, the admission of the results

into evidence was harmless beyond a reasonable doubt.

      Appellant next asserts that the trial court erred in refusing to admit

Godfrey’s 1989 involuntary manslaughter conviction into evidence. Godfrey

received a sentence of 10 to 25 years for the Ohio conviction.       Appellant


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remained on supervision in Ohio until 2014. Appellant claims the conviction

was relevant to bolster his self-defense theory and admissible under

Commonwealth v. Amos, 284 A.2d 748 (Pa. 1971). That Court held that

             where a defendant alleges self-defense, he may use his
       deceased victim’s criminal record either (1) to corroborate his
       alleged knowledge of the victim’s quarrelsome and violent
       character to show that the defendant reasonably believed that his
       life was in danger; or (2) to prove the allegedly violent
       propensities of the victim to show that the victim was in fact the
       aggressor.

Id. at 751. The prior crime must be “of the same nature,” and “not too distant

in time.” Id. at 752. “The decision in each case as to similar nature and

remoteness […] rests within the sound discretion of the trial judge.” Id. In

Commonwealth v. Beck, 402 A.2d 1371, 1373 (Pa. 1979), overruled in

part by Commonwealth v. Christine, 125 A.3d 394 (Pa. 2015)3                 our

Supreme Court held that the defendant need not have knowledge of the

defendant’s prior conviction to meet the second prong of the Amos test, i.e.,

that the victim had violent propensities and was the aggressor.

       Instantly, the trial court held Godfrey’s 1989 conviction inadmissible

because Appellant failed to establish his knowledge of it and because it was

too remote in time. As to the former, the trial court erred. Pursuant to Beck,



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3  The Supreme Court overruled Beck to the extent that it stood for the
proposition that all prior assault convictions are sufficiently similar and thus
admissible to demonstrate the victim’s propensity for violence. Christine,
125 A.3d at 400 n.9. Courts must determine whether the facts of the prior
act are sufficiently similar on a case-by-case basis. Id.

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Appellant did not need to establish his knowledge of the 1989 conviction in

order to establish that Godfrey had violent propensities and was the

aggressor.   As to the latter, we conclude the trial court acted within its

permissible discretion in excluding the 1989 conviction as too remote in time.

The trial court cited Commonwealth v. Quarles, 456 A.2d 188, 192 (Pa.

Super. 1983) in which this Court noted that no Pennsylvania decision had ever

admitted a victim’s prior conviction that was more than three years old. The

Quarles Court held the trial court properly excluded evidence of an undefined

22-year-old conviction.   Id. at 192-93.      This Court in Commonwealth v.

Gilliard, 446 A.2d 951, 956 (Pa. Super. 1982), held the trial court properly

excluded evidence of a murder victim’s convictions of aggravated assault,

attempted rape, burglary, and impersonating a police officer because those

convictions predated the crime at issue by more than twenty years.          We

conclude that Appellant’s assertion of error lacks merit.

      In his fourth argument, Appellant claims the testimony of his expert

witness, Dr. Karl Williams, of Appellant’s intoxication was sufficient to negate

Appellant’s specific intent to kill Godfrey. Section 308 of the Crimes Code

provides that a defendant’s voluntary intoxication is not a defense except

where it is relevant to reduce a murder conviction to a lower degree.        18

Pa.C.S.A. § 308.    To succeed on a voluntary intoxication defense, the

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

faculties and sensibilities.” Commonwealth v. Breakiron, 571 A.2d 1035,


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1041 (Pa. 1990), cert. denied, 498 U.S. 881 (1990). This determination is

for the jury. Id.

      Dr. Williams testified that Appellant weighed 160 pounds and that his

blood alcohol content (“BAC”) was .228 percent when his blood was drawn at

12:41 a.m. at St. Elizabeth Hospital, more than one hour after the shootings.

Appellant’s BAC would have been around .256 at the time of the shootings.

Dr. Williams concluded that Appellant was significantly impaired in all of his

capabilities as of that time, and that any person with a BAC above .2 is grossly

impaired. He would have expected Appellant to have slurred speech and be

unable to walk across a parking lot without swaying. He also testified that

some people develop a tolerance to alcohol and appear to not to be as

impaired as they really are.

      Nonetheless, the jury also heard evidence of Appellant’s interaction with

his cousin, Alvin Hancock, Jr., shortly after the shootings. Appellant appeared

glossy eyed and drunk to Hancock. Nonetheless, Appellant had the presence

of mind to concoct a false story, telling Hancock he was stabbed because he

failed to pay for oral sex from another man’s girlfriend.        Subject to an

outstanding warrant in Farrell, Pennsylvania, Appellant asked to be taken to

an out-of-state hospital.   Appellant got into Hancock’s car under his own

power, and he chose to walk across a parking lot at St. Elizabeth Hospital

under his own power rather than have Hancock drop him off at the entrance.

The jury observed surveillance video showing Appellant walking across the


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parking lot without visibly swaying.    When they arrived at St. Elizabeth,

Appellant told Hancock he was okay. Officer Steven Gibson of the Youngstown

Police Department interviewed Appellant shortly after his arrival at St.

Elizabeth and Appellant once again gave a false account and denied knowing

where or by whom he was stabbed.

      The evidence of record supports a finding that Appellant’s sensibilities

were not so overwhelmed that he was unable to form the specific intent to

kill. Appellant had the presence of mind to request a specific hospital and to

give false accounts of his stabbing.        Further, there is no evidence that

Appellant was slurring his speech or staggering, as Dr. Williams testified that

he should have been. The jury was free to credit the evidence demonstrating

Appellant’s presence of mind and control of his physical faculties, and reject

Dr. Williams’ testimony. Appellant’s voluntary intoxication argument fails.

      Next, Appellant argues the Commonwealth failed to disprove that

Appellant acted in self-defense. The Pennsylvania 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


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              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.A. § 505(a), (b)(2).

       Where the defendant properly raises a self-defense claim, the

Commonwealth must prove beyond a reasonable doubt that the defendant did

not act in self-defense. Commonwealth v. Smith, 97 A.3d 782, 787 (Pa.

Super. 2014).

             The Commonwealth sustains this burden if it establishes at
       least one of the following: 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.

Id. (quoting Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super.

2008), appeal denied, 964 A.2d 894 (Pa. 2009)).4

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4   The following governs our review of the sufficiency of the evidence:

              The standard we apply when 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



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       In support of his argument, Appellant notes that he was stabbed, that

Godfrey was found with a knife in his hand, and that Appellant’s blood was on

that knife. Id. We agree with Appellant that the evidence clearly indicates

that Godfrey stabbed him.           Furthermore, we are willing to assume, for

purposes of this issue only, that Godfrey was the initial aggressor. Even so,

Appellant cannot obtain relief.



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       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. Furthermore,
       when reviewing a sufficiency claim, our Court is required to give
       the prosecution the benefit of all reasonable inferences to be
       drawn from the evidence.

              However, the inferences must flow from facts and
       circumstances proven in the record, and must be of such volume
       and quality as to overcome the presumption of innocence and
       satisfy the jury of an accused’s guilt beyond a reasonable doubt.
       The trier of fact cannot base a conviction on conjecture and
       speculation and a verdict which is premised on suspicion will fail
       even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa. Super. 2014).


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      As explained above, witnesses heard two volleys of shots, with a pause

in between. The first volley included two or three shots, and the second volley

included more.      Police recovered three nine-millimeter casings near where

Odem was shot, and eight more closer to the location of Godfrey’s body.

Godfrey’s body was found roughly 150 feet from the site of Odem’s shooting,

and more than 60 feet from the location where Appellant fired the eight

additional shots.    The two bullets that hit Godfrey entered his body from

behind.

      Thus, reviewing this evidence in a light most favorable to the

Commonwealth as verdict winner, it appears that Appellant pursued Godfrey

from the site of the Odem shooting and fired at him eight times. The fact that

two bullets hit Godfrey from behind—and from outside of point blank range—

establishes that Appellant was not in any immediate danger from Godfrey’s

knife, and that Godfrey was fleeing from Appellant’s gunfire. We therefore

conclude that the Commonwealth proved beyond a reasonable doubt that

Appellant continued the use of force after force was no longer necessary for

self-defense, and that Appellant could have retreated with complete safety.

Appellant’s self-defense argument fails.

      Next, Appellant challenges the sufficiency of the evidence in support of

his first degree murder conviction, arguing that his voluntary intoxication

and/or self-defense arguments negated his specific intent to kill.        This




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argument is simply a brief restatement of two arguments we have already

rejected. Appellant therefore cannot obtain relief.

       In his seventh and final argument, Appellant challenges the sufficiency

of the evidence in support of his aggravated assault5 of Odem. He claims that

he shot Odem in the course of defending himself from Godfrey’s knife assault.

As noted above, Odem testified that she heard a voice call her name, turned

to look, and Appellant opened fire on her. The jury was entitled to credit

Odem’s eyewitness testimony, and her testimony by itself is more than

sufficient to prove beyond a reasonable doubt that Appellant did not shoot

Odem in self-defense. There is no evidence that Godfrey stabbed Appellant

before he shot Odem. Appellant’s argument fails.

       Because we have found all of Appellant’s arguments lacking in merit, we

affirm the judgment of sentence.

       Judgment of sentence affirmed.

       Judge Dubow and Judge Nichols concur in the result.




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5 Aggravated assault occurs where the defendant “attempts to cause serious
bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme difference to human life.”
18 Pa.C.S.A. § 2702(a)(1).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2018




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