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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KENNETH MALIK EVANS, III,

                            Appellant                No. 486 MDA 2015


           Appeal from the Judgment of Sentence October 24, 2014
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0004366-2013


BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 14, 2016

       Kenneth Malik Evans, III (“Appellant”) appeals from the judgment of

sentence entered following his conviction of first-degree murder. We affirm.

       This case stems from a shooting that occurred in the Sherman Hills

Apartment Complex in the City of Wilkes-Barre on November 11, 2013. As a

result of the shooting, Shantique Goodson (“the victim”) died.

       The trial court summarized the procedural history of this case as

follows:
              On January 24, 2014, the Luzerne County District Attorney
       filed a one (1) count Information charging [Appellant] with
       Criminal Homicide, 18 Pa.C.S.A. §2501. Subsequent to a jury
       trial commencing on August 19, 2014, [Appellant] was found
       guilty of Murder of the First Degree.          A Pre-Sentence
       Investigation was ordered to be completed by the Luzerne
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        County Adult Probation and Parole Department, and a sentencing
        hearing was scheduled.

              The sentencing hearing commenced on October 24, 2014,
        when [Appellant] was sentenced to a lifetime term of
        incarceration in a state correctional institution without the
        possibility of parole. [Appellant] was subsequently advised by
        [the trial court] of his post-sentence rights before the hearing
        concluded.

              On November 3, 2014, [Appellant] filed a motion for Post-
        Verdict Relief, which was denied by Order of December 4, 2014.

             On December 19, 2014, [Appellant] filed a Notice of
        Appeal.   [The trial court] ordered, on December 23, 2014,
        [Appellant] to file a Concise Statement of Errors Complained of
        on Appeal pursuant to Pa.R.A.P. 1925(b) and requested the
        Commonwealth to respond thereto. [Appellant’s] trial counsel
        were permitted to withdraw, and appellate counsel was
        appointed to represent [Appellant] on December 23, 2014.
        [Appellant’s] Rule 1925(b) Statement was timely filed on
        January 8, 2015, and the Commonwealth’s response was filed on
        March 9, 2015.

Trial Court Opinion, 6/2/15, at 2-3 (internal footnote omitted).      The trial

court issued a Pa.R.A.P. 1925(a) opinion.

        Appellant presents the following issues for our review:

        I.    Whether the evidence was insufficient as a matter of law to
        establish Appellant’s conviction for the charge of Murder [1].

        II.  Whether the trial court committed an error of law or
        abused its discretion by denying Appellant’s points for charge
        which included a jury instruction for Voluntary Manslaughter.

Appellant’s Brief at 1.1


____________________________________________


1
    We have renumbered Appellant’s issues for purposes of our discussion.



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      In his first issue, Appellant argues that the evidence was insufficient to

support a conviction for first degree murder.           Appellant’s Brief at 8.

Appellant contends that the Commonwealth failed to prove that he

possessed the required “specific intent” to kill the victim. Id. Specifically,

Appellant asserts that the record lacks any evidence showing that the

shooting was premeditated or planned in any way, as the incident resulted

from a chance encounter. Id. Appellant further maintains that the shooting

stemmed from an angry confrontation between the victim and Appellant,

thereby satisfying the “heat of the passion” criterion under a voluntary

manslaughter offense.    Id. at 9.    Appellant also argues that Appellant did

not intend to kill the victim, as reflected by the fact that Appellant did not

aim at the victim’s head or chest, but instead fired shots “down towards her

lower extremities.”   Id. at 10.     It is Appellant’s position “that his actions

amount to no more than Third Degree Murder or Voluntary Manslaughter.”

Id. at 9.

      The standard for evaluating sufficiency claims 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[‘s]. 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


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

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

     There are three elements of first-degree murder: (1) a human being

was unlawfully killed; (2) the defendant was responsible for the killing; and

(3) the defendant acted with malice and a specific intent to kill. 18 Pa.C.S.

§ 2502(a); Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa. 2011).

     As set forth in the third element, first-degree murder is an
     intentional killing, i.e., a “willful, deliberate and premeditated
     killing.” 18 Pa.C.S. § 2502(a) and (d). “Premeditation and
     deliberation exist whenever the assailant possesses the
     conscious purpose to bring about death.” Commonwealth v.
     Drumheller, 570 Pa. 117, 808 A.2d 893, 910 (2002). The law
     does not require a lengthy period of premeditation; indeed, the
     design to kill can be formulated in a fraction of a second.
     Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1220
     (2009); Drumheller, supra; Commonwealth v. Earnest, 342
     Pa. 544, 21 A.2d 38, 40 (1941) (“Whether the intention to kill
     and the killing, that is, the premeditation and the fatal act, were
     within a brief space of time or a long space of time is immaterial
     if the killing was in fact intentional, willful, deliberate and
     premeditated.”). Specific intent to kill as well as malice can be
     inferred from the use of a deadly weapon upon a vital part of the
     victim’s body. Houser, supra at 1133–34; [Commonwealth
     v.]    Briggs,    [12     A.3d   291,     306–307    (Pa.  2011)];
     Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 130–
     31 (2008). Whether the accused had formed the specific intent
     to kill is a question of fact to be determined by the jury.
     Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911, 916
     (1963).

Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013).

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       Here, it is undisputed that the victim was unlawfully killed2 and that

Appellant was responsible for the killing. As noted, Appellant argues solely

that the Commonwealth has failed to prove that he possessed the required

specific intent to kill the victim necessary to establish first-degree murder,

and that his actions amount to no more than third-degree murder or

voluntary manslaughter.         Appellant’s Brief at 8-9.    Despite his assertions,

the record supports the conclusion that Appellant acted with malice and the

specific intent to kill.

       The evidence reflects that on the date in question, Tiara McDuffie

(“McDuffie”), driving a white Jeep Cherokee with the victim as her

passenger, drove into the Sherman Hills Apartment Complex. N.T., 8/19/14,

at 86. McDuffie did not park the car upon entering the complex because she

saw Appellant in the complex.          Id. at 86-87.   After seeing Appellant, the

victim also told McDuffie not to park the vehicle.          Id. at 87.   As a result,

McDuffie cut across the parking lot and spun the car around to leave the

area of the complex where Appellant was approaching. Id. at 87. The two

women headed to the apartment of their friend Jasmine Frazier (“Frazier”)

that was located within the complex. Id. at 97.


____________________________________________


2
  Dr. Gary W. Ross, the forensic pathologist who conducted the autopsy of
the victim, concluded that the cause of the victim’s death was multiple
gunshot wounds and the manner of her death was homicide. N.T., 8/20/14,
at 238-239.



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       After McDuffie stopped the Jeep near Frazier’s apartment, Frazier

approached the vehicle on the passenger side where the victim was sitting.

N.T., 8/19/14, at 88, 121.      The victim rolled the window down, and the

parties engaged in a conversation.      Id. at 96, 117-122.      Moments later,

Appellant aggressively approached the passenger side of the vehicle and

addressed the victim. Id. at 122-123. Appellant told the victim to get the

“‘F’ out of the car.” Id. at 123. After the victim refused, Appellant reached

for the handle of the passenger side door.        Id. at 89, 123.    The victim

commented to Appellant:       “didn’t we discuss this yesterday?”     Id. at 89,

123.    Undeterred, Appellant pushed his left hand into the vehicle in an

attempt to reach for the lock. Id. at 89, 124. The victim pushed Appellant’s

left hand away from the lock, and Appellant then put his right hand into the

passenger side of the vehicle. Id. at 89, 124. With his right hand in the

passenger side of the vehicle, Appellant shot the victim twice.       Id. at 89,

124.

       Frazier testified that while she was still leaning into the passenger side

window, she saw Appellant shoot the victim in the lower abdomen.           N.T.,

8/19/14, at 124. After the two gunshots were fired, McDuffie sped away.

Id. at 89-90, 126. Appellant continued to fire several shots at the vehicle as

McDuffie drove off, and Appellant then ran off between the buildings of the

complex.    Id. at 90, 126.    McDuffie drove the victim to the Wilkes-Barre

General Hospital emergency room. Id. at 90.


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      At trial, McDuffie explained that the friendship between the victim and

Appellant had deteriorated approximately a week prior to the shooting.

N.T., 8/19/14, at 84.    While not entirely clear from the record what they

were, McDuffie testified that there were “issues” existing between victim and

Appellant in the days leading up to the victim’s homicide.          Id. at 83.

McDuffie testified that “leading up [to] this incident, things had got [sic] out

of control to [sic] the friendship.” Id. at 84.

      Dr. Ross testified that the victim suffered two gunshot wounds. N.T.,

8/20/14, at 227-240.     The first gunshot wound was to the victim’s vulvar

region. Id. at 232. Dr. Ross provided the following explanation regarding

whether this was a lethal gunshot wound:

            Not in and of itself. It certainly is a survivable wound,
      even though it’s to the vulvar region, even though it bled very
      copiously. It did not bleed enough to have – in my opinion, it
      did not bleed enough to have caused death in and of itself. It is
      certainly a medically survivable injury.

                                      ***

            [The victim] died as a result of a hemorrhage from
      multiple gunshot wounds.     This wound contributed to that
      hemorrhage, so this wound contributed to her death.

Id. at 232.

      Dr. Ross further explained that the second gunshot wound was to the

victim’s right thigh.   N.T., 8/20/14, at 233-235.     Dr. Ross provided the

following testimony regarding gunshot wound number two:

      [Dr. Ross:]     Gunshot wound number two is lethal in and of
      it[self]. Gunshot wound number two went through the soft

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      tissues of the thigh and tore major vessels of the right femoral
      artery, which is the major artery within the right leg and also the
      right femoral vein. This wound bled copiously and she died as a
      result of the extenuation of bleeding from this wound.

      [Commonwealth:]            Is the femoral artery a vital part of the
      body?

      [Dr. Ross:]       It is.

      [Commonwealth:]         So [the victim] was shot in a vital part of
      the body, correct, Dr. Ross?

      [Dr. Ross:]       Yes.

N.T., 8/20/14, at 237-238.

      Thus, the evidence of record, viewed in the light most favorable to the

Commonwealth, supports the conclusion that Appellant possessed the

specific intent to kill the victim. The evidence reflects that Appellant and the

victim had a significant disagreement in the days prior to the shooting. The

falling-out was to such a degree as to result in things between the two

getting “out of control.” N.T., 8/19/14, at 84. The victim’s desire to avoid

Appellant is evidenced by the victim’s direction to McDuffie to leave the area

of the complex where she observed Appellant. McDuffie also knew that upon

seeing Appellant, it was not wise to remain in that area. Despite McDuffie

and the victim leaving the area of the complex where they first observed

Appellant, Appellant pursued them to Frazier’s apartment.        Appellant was

aggressive in approaching the victim, and obviously had some issue with the

victim when he ordered her to “get the ‘F’ out of the car”. Id. at 123. The

victim apparently had reason to be wary of Appellant when she refused to

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get out of the vehicle.   Furthermore, the discord between the parties was

referenced and acknowledged by the victim’s comment that they had

discussed an issue the day prior. Appellant proceeded to place his arm in

the vehicle and shoot the victim.   As reflected by the evidence, Appellant

was armed when he decided to pursue and confront the victim. Accordingly,

the evidence viewed in the light most favorable to the Commonwealth

supports the conclusion that Appellant possessed the intentional purpose to

cause the victim’s death. Jordan, 65 A.3d at 323.

     Moreover, contrary to his claim, the evidence does not support

Appellant’s assertion that the shooting stemmed from an angry confrontation

between him and the victim and therefore occurred in the heat of passion.

The parties had been at odds for the week prior to the shooting.        When

Appellant approached the victim, he was clearly driven by some past

negative experience. Thus, there was enough cooling off time to negate any

finding that Appellant acted in the heat of passion. Additionally, it is of no

moment that Appellant did not have knowledge that the victim would be at

the complex that day.     Premeditation can be formed in a fraction of a

second. Jordan, 65 A.3d at 323. Appellant could have decided to kill the

victim the moment he saw her in the complex. Furthermore, Appellant used

deadly force on a vital part of the victim’s body, thereby permitting the

inference of specific intent. Id. Accordingly, we agree with the trial court

that there was sufficient evidence to support the determination that


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Appellant had the specific intent to kill the victim, as required for a

conviction of first-degree murder. Thus, Appellant’s first claim fails.

      In his second issue, Appellant argues that the trial court committed an

error of law or abused its discretion by denying Appellant’s requested jury

instruction for voluntary manslaughter.        Appellant’s Brief at 5.   Appellant

maintains     that   the   evidence   supports    the   elements   of    voluntary

manslaughter, and as such, the trial court should have issued that charge.

Id. at 6.     Specifically, Appellant contends that the evidence indicates that

the parties had an argument immediately prior to the shooting that

warranted the requisite instruction relevant to a “heat of passion” voluntary

manslaughter offense. Id.

      Our standard of review in assessing a trial court’s jury instructions is

as follows:

      [W]hen evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014).

Additionally, “[i]t is clear that jury instructions regarding particular crimes or

defenses are not warranted where the facts of the case do not support those




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instructions.” Commonwealth v. Washington, 692 A.2d 1024, 1028 (Pa.

1997).

      As noted, Appellant requested a jury          instruction on   voluntary

manslaughter.    Voluntary manslaughter is defined, in relevant part, as

follows:

      (a) General rule.-- 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. § 2503(a).

      The facts of this case do not support a finding that Appellant’s actions

constituted voluntary manslaughter. As explained previously, the evidence

presented at trial demonstrated Appellant possessed the specific intent to kill

the victim. Contrary to Appellant’s assertion, the evidence does not support

the conclusion that at the time of the killing he was acting under “sudden

and intense passion resulting from serious provocation.”           18 Pa.C.S.

2503(a).   Thus, Appellant cannot succeed on his claim that the trial court

should have charged the jury on voluntary manslaughter; the evidence

presented did not warrant such an instruction.      See Commonwealth v.

Walker, 36 A.3d 1, 15 (Pa. 2011) (jury instruction regarding heat of passion

and imperfect self-defense voluntary manslaughter not warranted where

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evidence did not support such instruction); Washington, 692 A.2d at 1028-

1029 (jury instruction regarding particular defense not warranted where

evidence does not support such instruction). Appellant is entitled to no relief

on this claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2016




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