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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

SHAQUILLE M. HENDERSON

                            Appellant                  No. 870 EDA 2015


           Appeal from the Judgment of Sentence November 7, 2014
     in the Court of Common Pleas of Philadelphia County Criminal Division
                                  at No(s):
                           CP-51-CR-0009569-2013
                           CP-51-CR-0009598-2013

BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 28, 2017

        Appellant, Shaquille M. Henderson, appeals from his judgment of

sentence of life imprisonment for first degree murder.1        Appellant argues

that the evidence was insufficient to sustain his murder conviction, and that

the weight of the evidence entitles him to a new trial. We affirm.

        The following evidence was adduced during trial. On March 8, 2013,

at approximately 2:00 p.m., the victim was shot and killed on the third floor

of a boarding house he owned, located at 1311 West Butler Street,

Philadelphia.

        Denise Rahman lived on the second floor of the victim’s boarding

house.      On March 8, 2013, she was at home waiting for a doctor’s

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
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appointment when the victim came to collect rent. Rahman paid the victim,

who then went upstairs to the third floor.   A few minutes later, he came

back down and knocked on Rahman’s door again. This time, he asked her if

she had seen Appellant, the third floor tenant.   Appellant was the victim’s

nephew.     Rahman replied that she had not. The victim informed Rahman

that he had to leave to take care of something but would return shortly.

N.T., 10/27/14, at 130-38.

      While the victim was out of the house, Rahman heard Appellant

walking up to the third floor.   Not long afterward, Appellant knocked on

Rahman’s door and asked her if anyone had gone through his room.         She

answered that the only person who had been upstairs was their landlord, the

victim.   Upset at Rahman’s response, Appellant went back upstairs to his

room. After some time had passed, the victim returned, and Rahman went

downstairs to inform him that Appellant was now home.         When she got

downstairs, she discovered that Appellant had followed her downstairs. The

victim told Appellant that they needed to speak privately in Appellant’s room

on the third floor. Id. at 138-43.

      From her room on the second floor, Rahman heard Appellant and the

victim arguing. After several minutes, the victim came back downstairs to

speak with Rahman. He seemed upset, but Rahman calmed him down, and

he returned to the third floor to resume speaking with Appellant.    Shortly

thereafter, Rahman heard between four and five gunshots from above. She



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dove into her closet for cover and heard one person running down the stairs.

When she heard the front door open, she looked out of her window and saw

Appellant riding away on a bicycle.        At no point before the shooting did

Rahman see, speak with or hear anyone other than the victim and Appellant.

The police arrived, and Rahman informed them that Appellant had shot and

killed the victim. Id. at 143-52.

      Granville Worthington lived on the first floor of the victim’s boarding

house. On March 8, 2013, he was sleeping in his room when he was awoken

by four to five gunshots from above. As he got out of bed, he heard hurried

footsteps coming down the stairs, but by the time he exited his room, he did

not see anyone leaving.        Worthington went upstairs because he heard

Rahman    calling   out   to   the   victim.   Worthington   found   the   victim

unresponsive on the ground and called 911. Id. at 173-84.

      The victim was pronounced dead at the scene, and an autopsy

revealed that he had been shot nine times. Dr. Sam Gulino, who performed

the autopsy, concluded that the victim suffered three independently fatal

wounds: one to the left side of the head, one near the base of the neck, and

one directly to the heart.       The manner of death was homicide.          N.T.,

10/29/14 at 17-24.

      Officer Jacquelin Davis processed the crime scene for evidence and

found nine fired cartridge casings in the third floor hallway and an empty

lockbox for a Glock pistol in one of the third floor bedrooms. Id. at 60-81.



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      Appellant managed to elude capture until April 25, 2013.       On that

date, Officer Michael O’Brien and two of his colleagues were at a Starbuck’s

on the campus of Temple University when they saw Appellant sitting on a

bench outside. Knowing that he was wanted, the officers approached him

and attempted to make an arrest. N.T., 10/28/14, at 4-8. Appellant fled as

soon as he saw the officers. During the chase, he reached behind his back

and threw a pistol into a nearby alleyway.       Officer O’Brien stopped his

pursuit to recover the pistol, and his colleagues apprehended Appellant a few

blocks away.   A search incident to arrest revealed that Appellant was in

possession of several grams of crack cocaine. The pistol was a stolen, police-

issue Glock 17. Detective William Sierra concluded that the bullets and shell

casings recovered from the crime scene were fired by the Glock 17 pistol

found in Appellant’s possession. Id. at 8-22, 79-80.

      The Commonwealth charged Appellant with first degree murder and a

violation of the Uniform Firearms Act (“VUFA”).2 On October 27, 2014, he

pleaded not guilty and proceeded to a jury trial, in which he testified in his

own defense. He admitted that he was present at the scene of the murder

but claimed that his friend, Wayne Wiggins, did the shooting. According to

Appellant, the victim had stolen their drugs, and Wiggins shot the victim out




2
  18 Pa.C.S. § 6108.    Appellant does not challenge this conviction in this
appeal.



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of anger.   He explained his possession of the gun by saying that Wiggins

gave it to him following the murder. N.T., 10/29/14, at 47-60.

      The jury convicted Appellant of first degree murder and the firearms

charge. On November 7, 2014, the court imposed the mandatory sentence

of life imprisonment without parole for murder and no further penalty on the

firearms conviction.      Appellant filed timely post-sentence motions which

were denied by operation of law on March 16, 2015.        This timely appeal

followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

         I. Is [Appellant] entitled to an [a]rrest of [j]udgment on
         the charge of [m]urder in the [f]irst [d]egree where the
         evidence is insufficient to sustain the verdict and where
         the evidence did not establish that [Appellant] was a
         principal, conspirator [or] an accomplice to the incident in
         question and acted with premeditation, specific intent to
         kill nor with malice?

         Il. Is [Appellant] entitled to a new trial on the charge of
         murder in the first degree where the greater weight of the
         evidence did not support the verdict and where the verdict
         was based on speculation, conjecture and surmise?

Appellant’s Brief at 3.

      Appellant first argues that the evidence was insufficient to sustain his

conviction for first degree murder due to lack of evidence that he committed

the shooting or that the killing was premeditated. Id. at 11. We disagree.

            The standard we apply in reviewing the sufficiency of
         the evidence is whether viewing all the evidence admitted
         at trial the 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


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          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 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted), appeal denied, 138 A.3d 4 (Pa. 2016).

       To sustain a conviction for first degree murder, the Commonwealth

must prove that the defendant “acted with the specific intent to kill, that a

human being was unlawfully killed, that the person accused did the killing,

and    that   the   killing   was   done    with   premeditation    or   deliberation.”

Commonwealth v. Freeman, 827 A.2d 385, 404 (Pa. 2003) (citations

omitted). The specific intent to kill can be inferred from the use of a deadly

weapon on a vital part of the body. See Commonwealth v. Thomas, 54

A.3d   332,    335-36     (Pa.   2012)     (citations   omitted).    The    period   of

premeditation necessary for first degree murder may be very brief: the

defendant can formulate intent to kill in a fraction of a second.                 See

Commonwealth v. Chambers, 980 A.2d 35, 47 (Pa. 2009) (citations



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omitted). Indeed, premeditation and deliberation exist whenever there is a

conscious purpose to bring about death. Id.

        Construed in the light most favorable to the Commonwealth, the

evidence is sufficient to sustain Appellant’s conviction for first degree

murder. The evidence clearly demonstrates that Appellant shot the victim.

Denise Rahman recounted that the victim and Appellant had an argument in

Appellant’s third floor apartment, which Appellant was renting from the

victim.     The victim proceeded downstairs to Rahman’s second floor

apartment, spoke with Rahman and then proceeded back upstairs to resume

his argument with Appellant.      Rahman then heard multiple gunshots and

saw Appellant fleeing the scene on his bicycle. The victim died on the third

floor. Six weeks later, police officers subsequently located Appellant, and he

ran away as the officers approached and threw a handgun into an alleyway.

The officers recovered the gun, and forensic analysis demonstrated that it

was the same gun that was used to kill the victim.

        The evidence also shows that Appellant committed this murder with

specific intent to kill. Appellant concedes in his brief that his use of a deadly

weapon on a vital part of the victim’s body sufficiently proved a specific

intent to kill.   Appellant’s Brief at 9; see also Thomas, 54 A.3d at 335.

Although he maintains that he shot the victim due to panic or rage, he did

not present any evidence during trial that he killed the victim due to panic,

rage.     To the contrary, he remained adamant that he was not the person



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responsible for the murder, and a third person committed the murder in

retaliation for the victim’s theft of drugs. In any event, Rahman’s testimony

belies this defense by showing that Appellant was the only person with the

victim at the time of the shooting.       Moreover, the shooting took place

following the victim’s conversation with Appellant and a hiatus during which

the victim proceeded downstairs to speak with Rahman. The evidence thus

demonstrates that Appellant premeditated the shooting and did not act out

of rage or panic.

      For these reasons, we reject Appellant’s challenge to the sufficiency of

the evidence.

      In his next argument, Appellant claims that the verdict is against the

weight of the evidence because nobody saw him shoot the victim.             We

disagree.

      “[A] trial court’s denial of a post-sentence motion based on a weight of

the evidence claim is the least assailable of its rulings.” Commonwealth v.

Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013) (citations and quotation

marks omitted). The weight of the evidence is exclusively for the finder of

fact, who “is free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses.” Commonwealth v. Diggs, 949

A.2d 873, 879 (Pa. 2008). The trial judge may award a new trial only if the

fact finder’s “verdict is so contrary to the evidence as to shock one’s sense of

justice.”   Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009)



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(citations omitted).     “[A]ppellate review is limited to whether the trial

judge’s discretion was properly exercised, and relief will only be granted

where the facts and inferences of record disclose a palpable abuse of

discretion.” Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super.

2011) (citation omitted).

      The fact that no one saw Appellant actually shoot the victim is of no

moment due to other circumstantial evidence tying Appellant to the murder.

Appellant was the last person with the victim mere moments before the

shooting.     Immediately after the shooting, Rahman observed Appellant

fleeing the scene.     When police officers arrested him six weeks later, he

attempted unsuccessfully to discard the murder weapon.

      In response to the Commonwealth’s evidence, Appellant claimed that

he was present during the shooting, but that the perpetrator was Wayne

Wiggins—whom nobody else saw in the area. Appellant further alleged that

Wiggins gave him the murder weapon following the shooting, which is why

he was in possession of it some six weeks later.            The jury discredited

Appellant’s    account   and   chose    to   credit   the   testimony   of   the

Commonwealth’s witnesses, which was well within its rights as the finder of

fact. See Diggs, 949 A.2d at 879. Accordingly, the trial court did not abuse

its discretion in denying Appellant’s challenge to the weight of the evidence.

Ratushny, 17 A.3d at 1272.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2017




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