J-S29014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DANIEL C. HARRIS

                            Appellant                   No. 1291 MDA 2013


           Appeal from the Judgment of Sentence January 10, 2013
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0002176-2012


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.:                             FILED AUGUST 22, 2014

       Appellant, Daniel C. Harris, appeals from the judgment of sentence

entered January 10, 2013, by the Honorable Richard A. Lewis, Court of

Common Pleas of Dauphin County. We affirm.

       On the evening of February 20, 2012, Harrisburg City Police Officers

were dispatched to an apartment located at 1416 Thompson Street to

investigate a reported shooting.1 Therein, police discovered the victim, Matt

Harrell, lying in a fetal position on the floor next to a bed with a gunshot

wound to the back of the head.            The victim was pronounced dead at the

scene.    Eyewitnesses Chuck Long, Tandra Jones and Thalia Waddell, who
____________________________________________


*
 Retired Senior Judge assigned to the Superior Court.
1
 For a detailed recitation of the facts and history of this case, we direct the
                                 -written memorandum opinion. See Trial
Court Opinion, 11/20/13 at 3-19.
J-S29014-14



were present at the time of the shooting, observed that a fight had ensued

between Harris, who had been at the apartment selling crack cocaine, and

the victim, because Harris believed the victim had stolen a bag of drugs.

During the altercation, Harris shot the victim, who then fell off a bed onto

the floor. Harris reportedly then stood over the victim and shot him several

more times, including a shot to the back of the head, while the victim was

on his knees on the floor. Shortly thereafter, Long reported the crime to the

police. Both Long and Jones identified Harris as the shooter.

        Harris was arrested and charged with, among other crimes, one count

of Criminal Homicide2 and Firearms Not to be Carried without a License.3

Following a jury trial, on January 10, 2013, Harris was convicted of both

charges and sentenced to an aggregate term of life imprisonment. On April

26, 2013, by agreement with the Commonwealth, the trial court reinstated

                             nunc pro tunc. Thereafter, on May 6, 2013, Harris

filed a post-sentence motion requesting a new trial, which the court denied

on June 18, 2013. This timely appeal followed.

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

        I.                                                              -

              weight of the evidence
              justice where the Commonwealth: presented the
              unreliable, contradictory, and inconsistent testimony of
____________________________________________


2
    18 PA.CONS.STAT.ANN. § 2501(a).
3
    18 PA.CONS.STAT.ANN. § 6106.



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J-S29014-14


            Tandras Jones, Charles Long, and Thalia Waddell, and;
            [sic] failed to prove that Appellant committed the crimes
            charged?

      II.   Assuming arguendo that [Harris] was the shooter, whether
            the Commonwealth failed to present sufficient evidence to

            failed to prove that [Harris] possessed specific intent and
                                           en and intense passion and
            self-defense?



      Harris challenges both the sufficiency and the weight of the evidence

in support of his convictions. We review a challenge to the sufficiency of the

evidence as follows:

      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
      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

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      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, 275-276 (Pa. Super. 2014)

(citation omitted).

      Conversely, a challenge to the weight of the evidence

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of



Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014) (citation

omitted).   Our standard when reviewing a weight of the evidence claim is

well settled.

      A motion for a new trial based on a claim 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 wou

      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
      de
      be awarded when the jury's verdict is so contrary to the
      evidence as to shock one's sense of justice and the award of a
      new trial is imperative so that right may be given another
      opportunity

      An appellate court's standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

         Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         Because the trial judge has had the opportunity to hear

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J-S29014-14


         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons
         advanced by the trial judge when reviewing a trial court's
         determination that the verdict is against the weight of the
         evidence. One of the least assailable reasons for granting
         or denying a new trial is the lower court's conviction that
         the verdict was or was not against the weight of the
         evidence and that a new trial should be granted in the
         interest of justice.

      This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered. In
      describing the limits of a trial court's discretion, we have
      explained:


         wisdom and skill so as to reach a dispassionate conclusion
         within the framework of the law, and is not exercised for
         the purpose of giving effect to the will of the judge.
         Discretion must be exercised on the foundation of reason,
         as opposed to prejudice, personal motivations, caprice or
         arbitrary actions. Discretion is abused where the course
         pursued represents not merely an error of judgment, but
         where the judgment is manifestly unreasonable or where
         the law is not applied or where the record shows that the
         action is a result of partiality, prejudice, bias or ill-will.

Id. at 1015-1016 (citation omitted).

      Instantly, Harris first argues that the testimony of Commonwealth

witnesses Jones, Long, and Waddell was so unreliable, contradictory and

inconsistent as to render the verdict against the weight of the evidence.

Specifically, Harris alleges the witnesses did not accurately describe the

outfit worn by Harris the night of the murder, that they incorrectly testified



habitual drug abusers who had previous convictions for crimes involving

                                    -13.

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accounts of the shooting were substantially similar in all major aspects. The

trial court summarized the testimony thusly:

           Chuck Long and Tandras Jones provided eyewitness
     testimony stating that Harris [shot the victim] in the neck during
     the struggle on the bed. (N.T. 1/18/13, pp. 172-177; 222).
     Within a day of the incident, Long and Jones positively identified
     Harris as the shooter by choosing his picture out of a photo array
     and also identified him at trial. (N.T. 1/18/13, pp. 180; 233-
     234). Jones and Long testified that after the first shot, they saw

     continued over the missing sack of drugs. (N.T. 1/18/13, pp.
     177; 223-224). Ms. Jones and Mr. Long also testified that they
     saw Harris shoot [the victim] in the head while [the victim] was
     on his knees. (N.T. 1/18/13, pp. 224; 229-230). Additionally,
     Thal
                                                                -287).
     When she ran into the bathroom for safety, she heard two more
     shots and a person hitting the floor. Ms. Waddell came out of
     the bathroom and found [the victim] curled upon the floor as he
     took his last breath. (N.T. 1/1/13, pp. 288-290).


     presented essentially the same set of factual circumstances
     leading up to the murder: the individuals who were present at
     the time of the shooting; Harris had been in the apartment
     several times that day to sell drugs; [the victim] was trying to
     trade barber clips to Harris for crack cocaine; Harris discovered
     that a bag of drugs belonging to him was missing; he pulled a
     gun on [the victim] as he believed that while they were

     drugs; an argument and physical fight ensued; Harris shot [the
     victim] during a struggle on the bed and then shot him at least
     two more times while [the victim] was off the bed, on his knees,
     still denying that he had stolen any drugs.

See Trial Court Opinion, 11/20/13 at 20-21.



surrounding the

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J-S29014-14



inconsistent     as   to   be    unreliable.    The    jury   clearly   resolved    any

inconsistencies among the testimony as it saw fit and reached a verdict.

See Orie                                                            is free to believe

all, part or none of the evidence and must determine the credibility of the




reviewing the record, we find no misapplication of law or abuse of discretion



      Lastly, Harris contends that, assuming arguendo he did shoot the

victim, the evidence was insufficient to support his conviction for first-degree

murder because the Commonwealth failed to establish Harris possessed a



                                                               -             Id.

obtain   a     first-degree     murder   conviction,   the    Commonwealth         must

demonstrate that a human being was unlawfully killed, the defendant

perpetrated the killing, and that the defendant acted with malice and a

                              Commonwealth v. Burno, --- A.3d ---, 2014 WL

2722758 at *10 (Pa., filed June 26, 2014) (citation omitted).               A specific



                                                                                    Id.

(citation omitted).

                                  -defense claim, we note that

upon or toward another person is justifiable when the actor believes that

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J-S29014-14



such force is immediately necessary for the purpose of protecting himself

against the use of unlawfu                                PA.CONS.STAT.ANN.

§ 505(a). Although the defendant has no burden to prove self-



                                              Commonwealth v. Mouzon,

53 A.3d 738, 740 (Pa. 2012) (citation omitted). Once a justification defense



                                           Commonwealth v. Torres, 766

A.2d 342, 345 (Pa. 2001).

     The Commonwealth sustains its burden if

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

                                                      Commonwealth        v.

McClendon

remains the province of the [finder of fact] to determine whether the

accused's belief was reasonable, whether he was free of provocation, and

                                     Id.

     In support of his self-defense claim, Harris claims that he reasonably




victim in an attempt to recover his pro

contends the victim, who outweighed Harris, then pinned him to the ground

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J-S29014-14



so that he was unable to retreat.        Id. at 16.     We do not find these

allegations sufficient to support a finding that Harris reasonably believed he

was in danger of death or serious bodily injury.       Moreover, as previously

noted, three separate Commonwealth witnesses testified that they observed

Harris shoot the victim in the head while the victim was on his knees

                                 testimony that the he had been pinned by the

victim or that he was unable to safely retreat. Clearly, the jury credited the



that he acted in self-defense.

      For the same reason,



individual without lawful justification commits voluntary manslaughter if at

the time of the killing he is acting under a sudden and intense passion




person confronted by the same series of events, would become impassioned

to the extent t

Commonwealth v. Truong, 36 A.3d 592, 600 (Pa. Super. 2012) (citation

omitted), appeal denied, 618 Pa. 688, 57 A.3d 70 (2012).           Harris baldly




record to substantiate this claim. Therefore, this claim, too, fails.




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J-S29014-14




the weight and sufficiency of the evidence, we affirm his judgment of

sentence.

     Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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