J-S47024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONALD GRIFFITH,

                            Appellant                 No. 2768 EDA 2013


            Appeal from the Judgment of Sentence of April 19, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004784-2011


BEFORE: MUNDY, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 06, 2014

       Appellant, Donald Griffith, appeals from the judgment of sentence

entered on April 19, 2013, following his jury trial convictions for first-degree

murder, possession of an instrument of crime (PIC), and carrying a firearm

without a license.1 Upon consideration, we affirm.

       The trial court summarized the facts of this case as follows:

             On January 14, 2011 Officers [Michael] McDonough and
         [William] McCrane were flagged down by [] Jamil Ransome
         at the intersection of Devereaux and Frankford Avenues
         following an apparent traffic accident [with Appellant].
         [Ransome] and his friend Andrew Taylor, travelling in a
         white Chevy Malibu, and [Appellant], driving a light blue
         Oldsmobile station wagon, collided when [Appellant] made
         an illegal left turn. Although everyone involved was upset
         by the accident, Officers McDonough and McCrane, en route
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 907(a), and 6106(a)(1), respectively.
J-S47024-14


       to another accident, instructed the parties to calm down
       before leaving the area. After the accident, an obviously
       agitated [Ransome] called his mother.       After a short

       called out to her son. As she held the line, she heard a
       number of additional shots and screams but [Ransome]
       never returned to the line.

            Arriving home from work at approximately the same
       time, Ana Sousa observed [Appellant] and [Ransome]
       speaking to police officers as she parked her car. As she
       retrieved a marker from a snow covered parking space, she
       watched as [Appellant] and [Ransome] spoke to police
       officers before the officers left the area. After the officers
       left, the two men continued to loudly argue with one
       another. Just a few seconds later, as she emerged from her
       vehicle, Ms. Sousa heard gunshots coming from the area
       where [Appellant] and [Ransome] stood.             Ms. Sousa
       watched as [Ransome] attempted to run away, and stood,
       frozen in terror, as [Appellant] continued to fire his weapon
       as he pursued [Ransome].

           Kimberly Tadlock, driving home from work, stopped at
       the traffic light at the intersection of Devereaux and
       Frankford Avenues. Ms. Tadlock observed an argument
       between [Appellant] and [Ransome] in the street just ahead
       of where her vehicle was stopped. Describing [Ransome] as
       a younger and thinner man than [Appellant], Ms. Tadlock
       watched as [Appellant] berated [Ransome] and angrily
       pointed in his face. [Appellant] then reached into his pocket
       and [Ransome] immediately began to run away.
       [Ransome] slipped on ice and fell as he tried to run away,
       and [Appellant] fired his
       direction.     After his fall, [Ransome] jumped up and
       continued to run away and [Appellant] followed, firing his
       weapon four (4) additional times. [Appellant] fired his
       weapon at [Ransome] as the victim attempted to flee, and
       also fired at the white vehicle in which [Ransome] had been
       riding.    [Appellant] then returned to his older model
       Oldsmobile station wagon and fled the scene without
       activating his headlights.

          After the shooting, Ms. Tadlock saw a marked police car
       proceeding down Frankford Avenue and [she] flagged down

                                   -2-
J-S47024-14


       the officer.   As she pulled her vehicle forward to get the

       Ms. Tadlock stated that as [Appellant] pursued and fired at
       [Ransome] she was able to
       alone in a marked police car on Harbison Avenue headed
       toward Frankford Avenue, Officer [Sharon] Pawlowski heard
       approximately [three to four] gunshots in the area. After
       hearing the shots, Office[r] Pawlowski was flagged down by
       a visibly shaken Kimberly Tadlock who described the
       shooting she had just witnessed. Officers McDonough and
       McCrane then heard a radio call of a shooting in the area.
       Returning immediately to the scene, the officers observed
                              sive body halfway in the backseat of
       the white vehicle shared with Mr. Taylor. [Ransome] was
       immediately taken to Temple University Hospital and was
       pronounced dead from a single gunshot wound to his
       abdomen shortly thereafter.

           Responding to a radio call of a blue Oldsmobile wanted
       in connection with a homicide, Sergeant [James] Wagner
       proceeded toward the 6200 block of Jackson Street. When
       he arrived in the area, he observed [Appellant] at the
       corner of Devereaux and Gillespie Streets as [Appellant]
       flattened his body against a wall to avoid detection by the
       passing police vehicle.       Although [Appellant] avoided
       detection by the passing officer, Sergeant Wagner
       approached from the opposite direction and detained
       [Appellant]. After giving a statement to officers on the
       scene, Ms. Tadlock was transported a short distance away
       to where [Appellant] was being detained. At the time of the
       identification, Ms. Tadlock stated that she recognized
       [Appellant] as the shooter, but that he had swapped his
       leather and fur coat for a black and grey checkered coat and

       recovered less than a mile from the scene of the shooting.
       Following this identification, [Appellant] was arrested
       without incident.




                                   -3-
J-S47024-14


             Crime Scene Investigator [Gregory] Yatcilla arrived at
         the scene along with Officers Flade, Davis, and Richardson[2]
         at approximately 9:59 p.m. While at the scene, Officer
         Yatcilla recovered eight (8) fired cartridge casings. Four (4)
         were recovered from behind a truck parked on Devereaux
         Avenue, and four (4) were recovered from the center of the
         street on Frankford Avenue.          A search warrant was

                                                            cers
         recovered a loaded Glock 9 mm semi-automatic handgun,
         an empty magazine for the same weapon, a black leather
         coat with a tan fur collar and trim, a brown cap and a

         home had gunshot residue in the chamber, indicating that it
         was recently fired. Likewise, ballistics evidence proved that
         the fired cartridge casings recovered from the scene of the

         killed by a single gunshot which entered his abdomen and
         pierced his small intestine and aorta before lodging in his
         spinal column. Further, the weapon matched the caliber

         back.

Trial Court Opinion, 1/17/2014, at 1-5 (record citations omitted).

       Procedurally, the case progressed as follows:

         [Appellant] was tried by a jury commencing on April 15,
         2013. On April 19, 2013, the jury found [Appellant] guilty
         of [the aforementioned charges].        On that same day,
         [Appellant] was sentenced to life imprisonment at a state
         correctional facility without the possibility of parole.
         [Appellant] filed a post-trial motion on April 23, 2013 which
         was denied by [the trial court] on September 13, 2013.
         [Appellant] filed a notice of appeal on September 23, 2013,
         and was ordered to file a statement of [errors] complained
         of on appeal on September 24, 2013. Said statement was
         filed on October 15, 2013. [The trial court issued an

____________________________________________


2
                                                                     d and they
were not witnesses at trial.



                                           -4-
J-S47024-14


           opinion pursuant to Pa.R.A.P. 1925(a) on January 17,
           2014.]

Id. at 1 (superfluous capitalization omitted).

       On appeal, Appellant presents the following issues3 for our review:

           I.     Is [Appellant] entitled to a new trial as a result of the

                  the testimony of Police Officer Murphy concerning
                  statements Andrew Taylor had made to him
                  concerning the shooting incident?

           II.    Is [Appellant] entitled to a new trial as the result of


                  testimony with his prior conviction for theft by
                  receiving stolen property?

           III.   Is [Appellant] entitled to an arrest of judgment with
                  respect to his convictions for murder of the first
                  degree, a violation of the Uniform Firearms Act and
                  possessing instruments of crime since the evidence is
                  insufficient to sustain the verdicts of guilt as the
                  Commonwealth failed to sustain its burden of proving


           IV.    Is [Appellant] entitled to a new trial with respect to
                  his convictions for murder of the first degree, a
                  violation of the Uniform Firearms Act and possessing
                  instruments of crime since the verdicts of guilt are
                  against the weight of the evidence?




rulings:



____________________________________________


3
    We have reordered the issues for ease of discussion.



                                           -5-
J-S47024-14


        On a challenge to a trial court's evidentiary ruling, our
        standard of review is one of deference.

        The admissibility of evidence is solely within the discretion
        of the trial court and will be reversed only if the trial court
        has abused its discretion. An abuse of discretion is not
        merely an error of judgment, but is rather the overriding or
        misapplication of the law, or the exercise of judgment that
        is manifestly unreasonable, or the result of bias, prejudice,
        ill-will or partiality, as shown by the evidence of record.

Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012)

(citation omitted).

      In the first issue, Appellant claims he is entitled to a new trial because

                                                                          fficer

Murphy concerning statements Andrew Taylor made to him concerning the




specifically, Appellant asserts:

        At the scene of the crime a struggle ensued forcing Officer
        Murphy to place Taylor in the back of his police vehicle.
        While so confined, Taylor told Officer Murphy that
                     attempted to walk away from the incident, but
        that he and the victim confronted him. The trial court,
        however, ruled these statements inadmissible.

Id.

were not offered for the truth of the matter asserted or are admissible under

the state of mind, declarations against penal interest, excited utterance,

and/or present sense impression exceptions to the hearsay rule pursuant to

Pa.R.E. 803(3), 804(b)(3), 803(2), and 803(1), respectively. Id. at 38-39.




                                     -6-
J-S47024-14



In the alternative, Appellant argues that constitutional due process of law

requires the admission of the statements at issue. Id. at 40-45.

       Initially upon review, Appellant did not raise various aspects of his

current claim before the trial court and we are constrained to find those

contentions waived.      First, we note that, at trial, Appellant did not argue

that the present sense impression exception to the hearsay rule was

applicable.    See N.T., 4/17/2013, at 65-69, 75-

review a legal theory in support of that claim unless that particular legal

                                                  Commonwealth v. Rush, 959

A.2d 945, 949 (Pa. Super. 2008); see also

raised in the lower court are waived and cannot be raised for the first time



challenge for the first time on appeal and we are constrained to find it

waived.       An appellate court should not address constitutional issues

unnecessarily or when they are not properly presented and preserved in the

                                              Commonwealth v. Berryman, 649

A.2d



                                       Id.; see also Pa.R.A.P. 302(a). For all of

the foregoing reasons, Appellant has waived these two aspects of his claim.



evidentiary    issue,   at   trial   both    Appellant   and   the   Commonwealth




                                            -7-
J-S47024-14



acknowledged that Andrew Taylor was an available witness.                N.T.,

4/17/2013, at 65-69, 75-78. Appellant submitted the following proffer:

           Officer Murphy, Badge 5222, was on patrol and arrived
        at the scene of this shooting at Frankford and Devereaux
        Avenue; the decedent had been taken away by the patrol
        wagon.

           On his arrival he saw other officers trying to control the
        black male who we know is Andrew Taylor.

           Mr. Taylor, during the course of this struggle, was

        Officer Murphy that the male, referring to [Appellant], tried
        to walk away and [Taylor] and [the victim] tried to confront
        him.

           He stated the male pulled out a gun and shot about eight
        times. The witness[, Mr. Taylor,] stated that he ran when
        he heard the gunshots.

           Judge, we seek to introduce that statement through
        Officer Murphy. Although it is hearsay, we would argue to
        the [c]ourt that it is not being introduced for the truth of
        the matter asserted but to show the state of mind of the
        declarant.

Id. at 65-66.

                                                             f [the proffered

statement] being a state of mind exception or an excited utterance despite

                     Id.

against interest of both Mr. Taylor and the decedent, the statement that

they were going                            Id. at 76. After argument on the




                                    -8-
J-S47024-14



issue, Appellant informed the trial court that he would not call Mr. Taylor as

a witness.4 Id. at 78.



declarant while testifying at trial or hearing, offered in evidence to prove the

                                        Commonwealth v. Gray, 867 A.2d 560,

570 (Pa. Super. 2005), citing                                            per se

inadmissible in this Commonwealth, except as provided in the Pennsylvania

Rules of Evidence[,] by other rules prescribed by the Pennsylvania Supreme

                          Id.

       Appellant has implicated the following hearsay exceptions:

         (2) Excited Utterance. A statement relating to a startling
         event or condition, made while the declarant was under the
         stress of excitement that it caused.

              Comment: This rule is identical to F.R.E. 803(2).

              This exception has a more narrow base than the
              exception for a present sense impression, because it
              requires an event or condition that is startling.
              However, it is broader in scope because an excited
              utterance (1) need not describe or explain the
              startling event or condition; it need only relate to it,
              and (2) need not be made contemporaneously with,
              or immediately after, the startling event. It is
              sufficient if the stress of excitement created by the
              startling event or condition persists as a substantial
              factor in provoking the utterance.
____________________________________________


4
   The record confirms that defense counsel intentionally refused to call
Taylor as a witness. See
upside and downside, [Appellant and defense counsel] were in agreement




                                           -9-
J-S47024-14



             There is no set time interval following a startling
             event or condition after which an utterance relating
             to it will be ineligible for exception to the hearsay
             rule as an excited utterance. In Commonwealth v.
             Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978), the
             court explained:

             The     declaration     need    not      be    strictly
             contemporaneous with the existing cause, nor is
             there a definite and fixed time limit ... Rather, each
             case must be judged on its own facts, and a lapse of
             time of several hours has not negated the


             time lapse, is whether, at the time the statement is
             made, the nervous excitement continues to dominate
             while the reflective processes remain in abeyance.

        (3) Then-Existing Mental, Emotional, or Physical
        Condition. A statement of the declarant's then-existing
        state of mind (such as motive, intent or plan) or emotional,
        sensory, or physical condition (such as mental feeling, pain,
        or bodily health), but not including a statement of memory
        or belief to prove the fact remembered or believed unless it
        relates to the validity or terms of the declarant's will.

             Comment: This rule is identical to F.R.E. 803(3).

Pa.R.E. 803(2), (3).

     Moreover, Appellant relies upon the following additional hearsay

exception:

        (3) Statement Against Interest. A statement that:

             (A) a reasonable person in the declarant's position
             would have made only if the person believed it to be
             true because, when made, it was so contrary to the
             declarant's proprietary or pecuniary interest or had
             so great a tendency to invalidate the declarant's
             claim against someone else or to expose the
             declarant to civil or criminal liability; and

                                     - 10 -
J-S47024-14



           (B) is supported by corroborating circumstances that
           clearly indicate its trustworthiness, if it is offered in a
           criminal case as one that tends to expose the
           declarant to criminal liability.

           Comment: This rule is identical to F.R.E. 804(b)(3).

Pa.R.E. 804(3).

     Here, the trial court determined:

        According to [Appellant], Taylor made a statement in which
        he indicated that he and decedent confronted [Appellant]
        when he attempted to walk away after the incident, and
        following said confrontation, [Appellant] began firing his
        weapon. At the outset, it must be noted that [Appellant]
        has fundamentally failed to demonstrate how this testimony

        told the officers that he and decedent were verbally
        confronted by [Appellant] and [Appellant] opened fire in
        response. However, after argument on the record regarding
        this issue, [Appellant] was given full opportunity to call
        Taylor, an available witness, to the stand for the purpose of
        eliciting this statement to police. [Appellant] made the
        tactical decision not to do so, and instead renewed his
        request to allow said statement from Police Officer Murphy,
        requiring dissection of several layers of hearsay, when
        Taylor was an available witness at trial. Although within the
        purview of trial strategy, neither Andrew Taylor nor Officer
        Murphy were called to testify at trial, either in the
                                 -in-

        Andrew Taylor for the purpose of eliciting his statement to
        police is fatal to this claim.

Trial Court Opinion, 1/17/2014, at 14-15 (record citations omitted).



alleged statement did not come within either the state of mind or statement

against interest exceptions to the hearsay rule.       The proffered statement



                                     - 11 -
J-S47024-14




intent, or plan.   Taylor would not have been subject to criminal or civil

prosecution after making the alleged statement.



exception was most apt. The statement was made after the shooting and



purported hearsay statement to police to show that Ransome verbally

confronted Appellant.     However, there was no dispute that the parties

argued before Appellant commenced firing upon Ransome.            At trial, as

discussed in detail infra, Kimberly Tadlock Green and Ana Sousa testified as

such. See N.T., 4/16/2013, at 80-85, 127-128, 136. Thus, the proffered

evidence was merely duplicative of other testimony.     We discern no abuse



investigating officers.

      Furthermore, such evidence, even if it qualified as an excited utterance

                                                                             -

defense claim because, as discussed at length infra, two eyewitnesses

testified that while Appellant and the victim were engaged in a verbal

altercation, Appellant reached for a firearm, advanced on the unarmed

victim, and shot at him multiple times. Thus, any error in not admitting the

proffered testimony is harmless. See Commonwealth v. Stetler, 95 A.3d

                                        may be harmless where the properly

admitted evidence of guilt is so overwhelming and the prejudicial effect of

                                    - 12 -
J-S47024-14



the error is so insignificant by comparison that it is clear beyond a

                                                                              ).

        In the second issue for our review, Appellant argues that the trial court

erred by denying his motion in limine                                     crimen

falsi

He avers that the conviction was over 10 years old at the time of trial and,

therefore, the trial court abused its discretion under Pa.R.E. 609(b). Id. at

46. Appellant contends that evidence of the prior crime cast doubt on his

credibility, so he was forced to take the stand in his own defense. Id. at 47.

He further claims that merely because his prior conviction was elicited on

                                                                 Id.

                                                                              for

an abuse of discretion.      Hernandez, 39 A.3d at 411.        Relevant herein,

Pa.R.E. 609 provides:

          (a) In General. For the purpose of attacking the credibility
          of any witness, evidence that the witness has been
          convicted of a crime, whether by verdict or by plea of guilty
          or nolo contendere, must be admitted if it involved
          dishonesty or false statement.

          (b) Limit on Using the Evidence After 10 Years. This
          subdivision (b) applies if more than 10 years have passed
          since the witness's conviction or release from confinement
          for it, whichever is later. Evidence of the conviction is
          admissible only if:

              (1) its probative value substantially outweighs its
              prejudicial effect; and




                                      - 13 -
J-S47024-14


            (2) the proponent gives an adverse party reasonable
            written notice of the intent to use it so that the party
            has a fair opportunity to contest its use.

Pa.R.E. 609.

      Initially, as noted by the trial court, 10 years had not elapsed between



More specifically, the tria

stolen property conviction resulted from a guilty plea in December 2002 and

the shooting occurred in January 2011, less than 10 years apart. Trial Court

Opinion, 1/17/2014, at 16.      This Court has previously recognized that the



under Rule 609. Commonwealth v. Harris, 884 A.2d 920, 926 (Pa. Super.

                   -

his prior crimen falsi had not expired when he committed the instant murder



of crimen falsi evidence was mandatory under Pa.R.E. 609.

      Moreover, in determining whether to admit evidence of a prior crimen

falsi conviction, the trial court should consider the following factors:

        1) the degree to which the commission of the prior offense
        reflects upon the veracity of the defendant-witness; 2) the
        likelihood, in view of the nature and extent of the prior
        record, that it would have a greater tendency to smear the
        character of the defendant and suggest a propensity to
        commit the crime for which he stands charged, rather than
        provide a legitimate reason for discrediting him as an
        untruthful person; 3) the age and circumstances of the
        defendant; 4) the strength of the prosecution's case and the
        prosecution's need to resort to this evidence as compared

                                      - 14 -
J-S47024-14


        with the availability to the     defense of other witnesses
        through which its version of      the events surrounding the
        incident can be presented;         and 5) the existence of
        alternative means of attacking   the defendant's credibility.

Commonwealth v. Palo, 2011 PA Super 136, 24 A.3d 1050, 1056 (Pa.

Super. 2011).

      Here, the trial court further weighed the abovementioned factors,



                              -defense    claim, there were



Id.

      Based upon our standard of review, we discern no abuse of discretion.



receiving stolen property conviction against its prejudicial value. The record



four and five above, because Appellant asserted self-defense and, thus, the

case turned on credibility.   Moreover, under factors one and two above,

Appellant's prior conviction does not suggest a propensity to commit murder,

the charge for which he was currently being tried. Accordingly, we find no




                                    - 15 -
J-S47024-14



In his third issue presented, Appellant claims that the evidence was

insufficient to support his convictions for PIC5 and first-degree murder. With

regard to his murder conviction, Appellant argues:

             [T]he evidence is insufficient to sustain the verdict of
         guilt since the Commonwealth
         guilt beyond a reasonable doubt. The Commonwealth failed
                                              -
         reasonably believed that deadly force was necessary to
         protect himself against death or serious bodily injury.




              Additionally, the evidence did not sustain the conviction

         specific intent to kill and did not act with malice,
         premeditation or ill will as required by 18 Pa.C.S.A.
         §                                            -degree
____________________________________________


5
    This Court has reiterated that when challenging the sufficiency of the

the elemen
to preserve the issue for appeal. Commonwealth v. Gibbs, 981 A.2d 274,

particular importance in cases where, as here, [] Appellant was convicted of
multiple crimes each of which contains numerous elements that the
                                                                 Id.  In his
1925(b) statement sub judice, Appellant fails to specify which element of PIC
the Commonwealth failed to prove. Hence, we are constrained to find this
aspect of his claim waived. Moreover, Appellant has not presented any legal
argument pertaining to his PIC conviction on appeal and has waived his
claim for this additional reason. See Commonwealth v. Rahman, 75 A.3d

discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
wai




                                          - 16 -
J-S47024-14


        murder since he did not intend to kill the victim or
        unreasonable belief voluntary manslaughter since he acted
        in mistaken self-defense.

                               *          *          *


        protect himself from the danger of death or serious bodily
        injury at the hands of the victim and Andrew Taylor in the
        incident during which the victim was shot. The victim and


        which    the    victim     and    Taylor   sought   revenge   for


        accident and had to be calmed down by police officers who
        happened upon the scene of the accident.

                                 bly believed that he was in danger
        of death or great bodily injury at the time of the shooting.

        injury and had to take immediate action. He was left with
        no choice other than to shoot the victim since he was under
        attack from the victim and Taylor. He may not be faulted
        for so doing since his actions were reasonable under the
        circumstances presented to him.


        He was not the initial aggressor. The victim and Taylor
        were the initial aggressors. There was no safe avenue of

        highway where movements of the parties were hampered
        by weather conditions. He could have been pursued by the
        victim and Taylor.


        murder or mistaken belief voluntary manslaughter.

                           -26.

   Our Supreme Court has set forth the standard of review and relevant

legal principles as follows:



                                         - 17 -
J-S47024-14


           When reviewing the sufficiency of the evidence, we view
       the evidence in the light most favorable to the
       Commonwealth as the verdict winner to determine if the
       evidence and all reasonable inferences derived therefrom
       are sufficient to establish all elements of the offense beyond
       a reasonable doubt. To sustain a conviction for murder of
       the first-degree, the Commonwealth must prove that: (1) a
       human being was unlawfully killed; (2) the person accused
       is responsible for the killing; and (3) the accused acted with
       specific intent to kill. 18 Pa.C.S. § 2502(d). Specific intent
       may be inferred from the use of a deadly weapon on a vital
       part of the victim's body. Also, we are cognizant that the
       period of reflection required for premeditation to establish
       the specific intent to kill may be very brief; in fact the
       design to kill can be formulated in a fraction of a second.
       Premeditation and deliberation exist whenever the assailant
       possesses the conscious purpose to bring about death.
       Further, the trier of fact, in passing upon the credibility of
       the witnesses, is free to believe all, part, or none of the
       evidence.

                          *         *           *

             When the defendant introduces evidence of self-
       defense, the Commonwealth bears the burden of disproving
       such a defense beyond a reasonable doubt.                  The
       Commonwealth cannot sustain its burden of proof solely on
       the factfinder's disbelief of the defendant's testimony. The
       disbelief of a denial does not, taken alone, afford affirmative
       proof that the denied fact existed so as to satisfy a
       proponent's burden of proving that fact.

           To elucidate the Commonwealth's specific burden in
       disproving Appellant's claim of self-defense, we look to

       Section 505 states, in relevant part:

          § 505. Use of force in self-protection

          (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


                                   - 18 -
J-S47024-14


            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 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 or by surrendering possession of a thing to
            a person asserting a claim of right thereto or by
            complying with a demand that he abstain from any


        18 Pa.C.S.A § 505(a), (b)(2)(i), (ii).

Commonwealth v. Rivera, 983 A.2d 1211, 1220-1223 (Pa. 2009) (internal

case citations, quotations, footnotes, and brackets omitted).

      Sub judice, the trial court concluded there was sufficient evidence to

                      -defense claim, opining:

        Eyewitnesses Ana Desousa and Kimberly Tadlock each
        stated that she observed [Appellant] angrily point and yell

        [Appellant] reach into his pocket, decedent immediately ran
        away from [Appellant]. [Appellant] then pursued decedent,
        firing two (2) shots at decedent before he fell, then chasing
        him and firing an additional four (4) shots after decedent
        returned to his feet and continued to run away. Based upon
        the facts presented at trial, a jury could rationally conclude


                                    - 19 -
J-S47024-14


        that [Appellant] did not have a reasonable basis that he was
        in imminent danger of great bodily harm.

                          *        *            *
        Notably, despite his contentions at trial, [Appellant] never
        mentioned to police that decedent allegedly threatened his
        life.

                           *         *            *

        In this case, the evidence was more than sufficient to


        single gunshot wound which entered his abdomen.
        Likewise, there was sufficient evidence to prove that
        [Appellant] was the man who fired the fatal shot. In fact,
        [Appellant] did not deny firing the fatal gunshot, but instead

        that the jury chose to disbelieve [Appel
        and determined that his actions illustrated his specific intent
        to kill.

Trial Court Opinion, 1/17/2014, at 9, 11-12.



assessment.    Kimberly Tadlock Green testified that she saw the verbal

altercation between Appellant and Ransome that ensued after police left the

scene of the traffic accident.   N.T., 4/16/2013, at 80-81.     Tadlock Green



and that Appella                                                     Id. at 82.



                                   Id.   Tadlock Green further testified that



                      Id. at 83.   Tadlock Green stated that Appellant was

approximately five feet away from the victim when she heard two gunshots

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and witnessed the victim slip on ice. Id. at 83-85. She described Appellant

as                       Id. at 100. Thereafter, Tadlock Green testified that

she saw the victim get up and run and that she heard four more shots and

then saw the victim lying in the street. Id. at 86-87, 111-113.

     Ana Sousa testified that she did not personally witness the altercation,

because a truck obscured her view. Id. at 127. She heard a loud argument

followed by two gunshots.     Id. at 127-128, 136.     Sousa saw someone

running down the street with a gun, but could not identify the person. Id. at

129. She then heard four more gunshots. Id. at 129-130.

     Police recovered eight bullet casings from the scene of the crime. Id.

at 30-31.     The Commonwealth called firearm examiner, Police Officer

Norman DeFields at trial.    He testified that he examined eight cartridge

casings recovered from the scene of the crime, as well as a bullet fragment



.9 millimeter Luger Glock firearm manufactured by Speer. N.T., 4/17/2013,

at 31-33, 38.

9-



to the firearm identification unit. N.T., 4/16/2013, at 60.   Officer DeFields



it was operational.   Id. at 35.   Officer DeFields concluded that the eight

                                                                            e,

were fired from the same firearm that was submitted for forensic

                                    - 21 -
J-S47024-14



examination. Id. at 42-43. The police did not recover a weapon from the

victim, Andrew Taylor or the vehicle in which they were driving.          N.T.,

4/17/2013, at 19.     Dr. Marlin Osborne, medical examiner, opined that the

victim died of a single gunshot wound to the abdomen. Id. at 55.

      Based on the foregoing, and based upon our standard of review, we



first-degree m



intent to kill.   Moreover, the Commonwealth met its burden of disproving

                  -defense claim beyond a reasonable doubt.      Appellant was

the initial aggressor.    Appellant did not retreat and, as the evidence

established, chased the victim. Appellant did not use only as much force as

necessary for self-preservation.   The victim was unarmed.       No eyewitness

saw anyone other than Appellant with a weapon during the incident.

Appellant fired two shots at an unarmed victim who slipped on ice.         The

victim got up and ran, but Appellant continued pursuing the victim, firing

additional shots. Viewing all of the evidence in the light most favorable to

the Commonwealth, we conclude that that the trial court did not err in




      Finally, Appellant argues that his convictions were against the weight

                                             -36.   We review Appellant's claim

under the following standard of review:

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J-S47024-14



        A verdict is not contrary to the weight of the evidence
        because of a conflict in testimony or because the reviewing
        court on the same facts might have arrived at a different
        conclusion than the fact[-]finder. Rather, a new trial is
        warranted only when the jury's verdict is so contrary to the
        evidence that it shocks one's sense of justice and the award
        of a new trial is imperative so that right may be given
        another opportunity to prevail. Where, as here, the judge
        who presided at trial ruled on the weight claim below, an
        appellate court's role is not to consider the underlying
        question of whether the verdict is against the weight of the
        evidence. Rather, appellate review is limited to whether the
        trial court palpably abused its discretion in ruling on the
        weight claim.

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).

      Based upon our prior discussion of the evidence adduced at trial, we

do not find that the trial court palpably abused its discretion in denying




claim lacks merit.

      Judgment of sentence affirmed.

      Judge Mundy joins this memorandum.

      Judge Wecht concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2014


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