J-S46030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAMAR BATCHLER                             :
                                               :
                       Appellant               :   No. 1837 EDA 2017

              Appeal from the Judgment of Sentence May 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010213-2015


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.:                          FILED SEPTEMBER 06, 2018

       Appellant, Lamar Batchler, appeals from the May 5, 2017 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following a jury trial. We affirm.

       The trial court summarized the procedural history and facts of the crime

as follows:

              [Appellant] was arrested on August 6, 2015, and charged
       with murder, violations of The Uniform Firearms Act and
       possessing the instruments of a crime. [Appellant] was bound
       over for court on all charges following a preliminary hearing on
       October 13, 2015. A jury was empaneled from April 17, 2017[,]
       through April 21, 2017, wherein [Appellant] was convicted of
       murder of the first degree and firearms not to be carried without
       a license.[1] On May 5, 2017, [Appellant] was sentenced to . . .
       mandatory life imprisonment to be followed by three and one-half
       to seven years’ incarceration for violating The Uniform Firearms

____________________________________________


1   18 Pa.C.S. §§ 2502(A), 6106(A)(1), respectively.
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     Act. Post-Sentence Motions were not filed, however a timely
     appeal was made to the Superior Court of Pennsylvania.

                                   * * *

           The facts, when viewed in the light most favorable to the
     Commonwealth as the verdict-winner, show that a couple of days
     prior to October 17, 2014, brothers Kiron and Leonard Clinton
     were socializing at a bar located at 8th Street and Hunting Park
     Avenue in the City and County of Philadelphia. A[n] unnamed
     woman spoke with Leonard about selling him a dime bag of
     marijuana in return for a couple of drinks, which [Appellant]
     overheard and took offense, claiming he was the only one selling
     weed in that area. There was a discussion between the brothers
     and [Appellant], which intensified and got louder with Kiron
     eventually hitting [Appellant]. A couple of [Appellant’s] friends
     came over and broke up the argument, which seemed over at that
     point. (N.T. 4-19-2017, pp. 143-149, 182, 212-217).

           On October 17, Kiron, Leonard, and a third brother, Cornel,
     returned to the same bar where they were hanging out and
     shooting pool. (N.T., 4-19-2017, pp. 151-152). They noticed that
     one of [Appellant’s] friends who broke up the scuffle from a couple
     of days prior was also in the bar. Around 10:30 that night the
     brothers stepped outside for a cigarette. (N.T. 4-19-2017, pp.
     152-153). While outside the bar, [Appellant] approached and an
     argument again ensued. (N.T., 4-19-2017, pp. 153-159, 194-
     198, 218-219). Despite that [Appellant] pulled out his gun the
     quarrel seem[e]d to end. [Appellant] turned and walked up the
     street away from the group of men outside the bar. Kiron turned
     to leave to go back into the back door of the bar, however that
     door was locked. As Kiron attempted to enter the bar’s front door
     [Appellant] shot at him at least seven times, striking the decedent
     in the back and then twice in the chest. Before collapsing[,] the
     decedent returned fire. [Appellant] fled the scene. (N.T., 4-19-
     2017, pp. 159-163, 177-179, 199-201, 221-226). Leonard and
     Cornel Clinton went to their fallen brother, retrieved his gun and
     proceeded to run down the street in an attempt to shoot
     [Appellant]. (N.T., 4-20-2017, pp. 17-190, 164-169, 178-179,
     186-187, 211-212). The police arrived and took Kiron Clinton to
     the hospital where he was pronounced [dead]. Although a grainy
     video, the argument and shooting were captured on video which
     was produced during the trial.


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Trial Court Opinion, 11/6/17, at 1–3.      Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the same issue on appeal as he identified in his Rule

1925(b) statement. He assails the sufficiency of the evidence supporting the

first-degree-murder conviction “in that the evidence failed to establish that

there was a willful, deliberate, and premeditated killing since the evidence

showed that Appellant was acting in self defense.” Appellant’s Brief at 2 (full

capitalization omitted).

      Because a determination of evidentiary sufficiency presents a question

of law, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). In reviewing the

sufficiency of the evidence, we must determine whether the evidence admitted

at trial and all reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, were sufficient to prove

every element of the offense beyond a reasonable doubt. Commonwealth

v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017).            “[T]he facts and

circumstances established by the Commonwealth need not preclude every

possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d 521,

525–526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson-Dewar,

829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of the fact-

finder to determine the weight to be accorded to each witness’s testimony and

to believe all, part, or none of the evidence. Commonwealth v. Tejada, 107


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A.3d 788, 792–793 (Pa. Super. 2015). The Commonwealth may sustain its

burden of proving every element of the crime by means of wholly

circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.

Super. 2016).    Moreover, as an appellate court, we may not re-weigh the

evidence   and   substitute   our   judgment   for   that   of   the   fact-finder.

Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

      An individual commits first-degree murder when he intentionally kills

another human being; an intentional killing is defined as a “willful, deliberate

and premeditated killing.” 18 Pa.C.S. §§ 2501, 2502(a), (d). To sustain a

conviction for first-degree murder, the Commonwealth must prove that: (1) a

human being was unlawfully killed; (2) the accused was responsible for the

killing; and (3) the accused acted with malice and a specific intent to kill.

Commonwealth v. Ballard, 80 A.3d 380, 390 (Pa. 2013). A jury may infer

the intent to kill “based on the accused’s use of a deadly weapon on a vital

part of the victim’s body.” Sanchez, 36 A.3d at 37.

      Appellant asserts that he was acting in self defense. Appellant’s Brief

at 8. He admits that no one saw Kiron Clinton [“the victim”] “draw his gun,

but it was undisputed that he was in possession of a gun and that he used

same.” Id. Appellant acknowledges that the victim “appeared to be walking

away,” but suggests the victim’s “intention may have been to escalate the

confrontation by. . . turning back with his gun drawn.” Id. at 9. Appellant

posits that even if Appellant fired his gun first, the victim’s “behavior in


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becoming frustrated and agitated was a clear indication that he was becoming

aggressive.” Id. at 10.

      A claim of self-defense requires evidence establishing the following three

elements:

      “(a) that the defendant reasonably believed that he was in
      imminent danger of death or serious bodily injury and that it was
      necessary to use deadly force against the victim to prevent such
      harm; (b) that the defendant was free from fault in provoking the
      difficulty which culminated in the slaying; and (c) that the
      defendant did not violate any duty to retreat.” Commonwealth
      v. Samuel, 527 Pa. 298, 590 A.2d 1245, 1247–48 (1991). See
      also Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441, 449
      (1997); 18 Pa.C.S. § 505.2. Although the defendant has no
      burden to prove self-defense, . . . before the defense is properly
      in issue, “there must be some evidence, from whatever source, to
      justify such a finding.” Once the question is properly raised, “the
      burden is upon the Commonwealth to prove beyond a reasonable
      doubt that the defendant was not acting in self-defense.”
      Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627, 630
      (1977). The Commonwealth sustains that burden of negation “if
      it proves any of the following: that the slayer was not free from
      fault in provoking or continuing the difficulty which resulted in the
      slaying; that the slayer did not reasonably believe that he was in
      imminent danger of death or great bodily harm, and that it was
      necessary to kill in order to save himself therefrom; or that the
      slayer violated a duty to retreat or avoid the danger.”
      Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506, 507
      (1980).

Commonwealth v. Mouzon, 53 A.3d 738, 740–741 (Pa. 2012).

      The Pennsylvania Crimes Code governs self-defense and provides, in

relevant part, as follows:

      § 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

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     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
        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.
           ...

                                  ***

        (2.3) An actor who is not engaged in a criminal activity, who
        is not in illegal possession of a firearm and who is attacked
        in any place where the actor would have a duty to retreat
        under paragraph (2)(ii) has no duty to retreat and has the
        right to stand his ground and use force, including deadly
        force, if:

           (i) the actor has a right to be in the place where he
           was attacked;

           (ii) the actor believes it is immediately necessary
           to do so to protect himself against death, serious
           bodily injury, kidnapping or sexual intercourse by
           force or threat; and

           (iii) the person against whom the force is used
           displays or otherwise uses:

              (A) a firearm or replica of a firearm as
              defined in 42 Pa.C.S. § 9712 (relating to


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                sentences for   offenses     committed   with
                firearms); or

                (B) any other weapon readily or apparently
                capable of lethal use.

18 Pa.C.S. § 505(a)–(b); Commonwealth v. Smith, 97 A.3d 782, 786 (Pa.

Super. 2014).

     We rely on the trial court’s rejection of this claim:

            That the evidence was sufficient to convict [Appellant] of
     murder of the first degree is straightforward and unmistakable.
     The murder is captured on video, conclusively depicting
     [Appellant] in an argument with [the victim]. It further shows
     [Appellant] pulling out his gun and displaying it to [the victim] and
     then turning and walking up the street. The argument is over.
     The people are disbursing [sic]. [The victim] is leaving, walking
     away. The video then shows [Appellant] turning around and
     shooting [the victim] in the back as [the victim] was walking
     away. [Appellant] then shoots again seven or so times, striking
     his victim twice more in the chest. It was only after being shot
     three times that [the victim] returns fire before collapsing onto
     the sidewalk, mortally wounded. Rather than being a matter of
     insufficient evidence, this is classic demonstration of a
     premeditated, deliberate intentional killing on video.

                                    * * *

           The video clearly shows that [Appellant] was not in danger
     from [the victim] when he started shooting; the argument had
     ended and the parties were dispersing. [Appellant], after walking
     away, suddenly turned and shot [the victim] in the back.
     [Appellant] continued shooting, at least seven more times at [the
     victim], striking [the victim] twice more in the chest. [Appellant]
     did all of this before [the victim] was able to pull his gun and
     return fire. The video distinctly shows that [Appellant] was not
     acting in self-defense; he was the aggressor and as such the
     prosecution unequivocally disproved [Appellant’s] claim of self-
     defense.

Trial Court Opinion, 11/6/17, at 4–5, 6–7.


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      Appellant’s assertion in his brief that there was equivocal testimony that

the victim fired his gun first is incorrect. Appellant’s Brief at 9 (citing N.T.,

4/19/17, at 61–62, 101, 112). Lashey Johnson, the mother of a child fathered

by Leonard Clinton, the victim’s brother, testified at trial and additionaly had

testified at Appellant’s preliminary hearing. N.T., 4/19/17, at 60. At trial, Ms.

Johnson acknowledged as follows:

      [By Ms. Johnson]: I was explaining like I said [the victim] shot
      first and then I turned around and said [Appellant] shot first
      because [Appellant] shot first. I’m not really sure about if, you
      know, if [the victim] ever shot. Do you understand what I’m
      saying?

      [By the Commonwealth]: Did you see [the victim] shoot?

      A. No.

      Q. You did see him with a gun?

      A. Yes.

N.T., 4/19/17, at 62.   Ms. Johnson stated that she did not see the victim

shooting back at Appellant, and on cross-examination, she corrected her

statement to Philadelphia Police Detective Nathan Williams that she saw the

victim shoot the gun. Id. at 101. Also on cross-examination, defense counsel

asked Ms. Johnson, “[A]t what point did [the victim] pull the gun out?” and

Ms. Johnson stated, “He doesn’t pull his gun out—.” Id. at 111. She testified

when the victim went to turn around to come back in the bar, “he didn’t pull

no gun out.” Id. at 112.




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      Eyewitness Leonard Clinton, the victim’s brother, testified that as the

victim and Appellant talked, the victim stopped talking and “walked away. He

turned his back and walked away.” N.T., 4/19/17, at 159. Leonard stated

that the victim reached the front door of the bar “once the shots started

ringing out.” Id. Leonard testified that he was five feet from Appellant and

he saw Appellant shooting “when the shots started ringing out.” Id. at 160–

161. Leonard testified that Appellant “just never stopped” shooting . . . maybe

seven times.” Id. at 162. The eyewitness stated he “never seen [the victim]

pull a gun.” Id. at 201.

      We have reviewed the record, including the complete notes of testimony

at trial.   There is no merit to Appellant’s sufficiency claim nor evidentiary

support to his assertion of self-defense.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/18




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