J-S23004-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
KARIM McCREA,                             :
                                          :
                   Appellant              : No. 2398 EDA 2013

          Appeal from the Judgment of Sentence November 16, 2012,
                 Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0000429-2011

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED JUNE 10, 2015

        Karim McCrea (“McCrea”) appeals from the judgment of sentence

entered following his convictions of murder in the first degree and

possessing instruments of crime (“PIC”).1    Following our review, we affirm

McCrea’s convictions but remand for resentencing.

        The basic facts underlying these convictions are as follows.   On the

evening of June 11, 2010, Elijah Owens (“Victim”) was shot and killed in a

driveway behind 6908 N. 19th Street in the City of Philadelphia. Two men,

Nathaniel Alston and William Grier, saw McCrea shoot Victim.           McCrea

immediately fled the scene. The first police officers to respond to the scene

of the crime transported Victim to the hospital, where he was pronounced

dead.



1
    18 Pa.C.S.A. §§ 2502(a), 907.


*Retired Senior Judge assigned to the Superior Court.
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      At the conclusion of a jury trial, McCrea was convicted of the crimes

mentioned above. The trial court imposed the mandatory sentence of life in

prison on the first-degree murder conviction and a concurrent sentence of

two and a half to five years on the PIC conviction. McCrea did not file post-

sentence motions or a direct appeal.         He subsequently filed a petition

pursuant   to   the    Post-Conviction   Relief   Act   (“PCRA”),   seeking   the

reinstatement of his direct appeal rights.2 The trial court granted his petition

and this appeal followed.

      McCrea presents two issues for our review:

            1. Is [McCrea] entitled to an arrest of judgment of
               all charged where the verdict is not supported by
               sufficient evidence?

            2. Is [McCrea] entitled to a new trial on all charges
               where the verdict is against the weight of the
               evidence?

McCrea’s Brief at 3.

      We begin with the second issue, in which McCrea attempts to raise of

claim that the verdict was against the weight of the evidence. “[A] weight of

the evidence claim must be preserved either in a post-sentence motion, by a

written motion before sentencing, or orally prior to sentencing. Failure to

properly preserve the claim will result in waiver, even if the trial court

addresses the issue in its opinion.”     Commonwealth v. Thompson, 93


2
  McCrae did not seek to file a post-sentence motion nunc pro tunc. See
Counseled [PCRA] Petition Seeking to Reinstate Appellate Rights[] Nunc Pro
Tunc Due to Administrative Oversight in Law Office, 5/7/13.


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A.3d 478, 490 (Pa. Super. 2014) (internal citations omitted); see also

Pa.R.Crim.P. 607.    The record reveals that McCrea did not file a post-

sentence motion or otherwise preserve this issue in the court below.

Accordingly, he has waived it for purposes of appeal.

     In his remaining issue, McCrea argues that the evidence was

insufficient to support his convictions. When reviewing a sufficiency of the

evidence claim, “we must determine whether the evidence admitted at trial,

as well as all reasonable inferences drawn therefrom, when viewed in the

light most favorable to the verdict winner, are sufficient to support all

elements of the offense.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa.

Super. 2013) (quoting Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.

Super. 2011)).   When performing this review, “we may not reweigh the

evidence or substitute our own judgment for that of the fact finder.”   Id.

The Commonwealth may rely solely on circumstantial evidence to support a

conviction, and the trier of fact, while passing upon the credibility of

witnesses and the weight of the evidence produced, is free to believe all,

part or none of the evidence. Commonwealth v. Hutchinson, 947 A.2d

800, 806 (Pa. Super. 2008).

     “A criminal homicide constitutes murder of the first degree when it is

committed by an intentional killing.” 18 Pa.C.S.A. § 2502(a).

           To sustain a conviction for first-degree murder, we
           must conclude that the evidence established the
           following three elements: (1) that a human being



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           was unlawfully killed; (2) that the accused is
           responsible for the killing; and (3) that the accused
           acted with a specific intent to kill, i.e., in a willful,
           deliberate, premeditated way. The Commonwealth
           may sustain its burden to establish each element
           with the presentation of wholly circumstantial
           evidence. For example, specific intent to kill can be
           inferred from the application of deadly force to the
           victim’s person.

Commonwealth v. Pruitt, 951 A.2d 307, 313-14 (Pa. 2008) (internal

citations omitted). With regard to PIC, “[a] person commits a misdemeanor

of the first degree if he possesses any instrument of crime with intent to

employ it criminally.” 18 Pa.C.S.A. § 907(a).      An instrument of crime is

defined, in relevant part, as “[a]nything used for criminal purposes and

possessed by the actor under circumstances not manifestly appropriate for

lawful uses it may have[,]” 18 Pa.C.S.A. § 907, and includes a firearm used

in the commission of a crime. See Commonwealth v. Stanley, 446 A.2d

583, 588 (Pa. 1982) (holding that where appellant possessed a revolver

when arrested for escape, he possessed an instrument of crime for purpose

of Pa.C.S.A. § 907).

     Our review of the evidence of record, in the light most favorable to the

Commonwealth, reveals that on June 11, 2010 at approximately 9:00 in the

evening, Nathaniel Alston was asleep on the back deck of 7009 Georgian

Road in Philadelphia.   N.T., 11/14/12, at 163-64.      He was woken by the

sound of gunfire. Id. at 165. He immediately ran toward the side of the

porch and as he did so, he looked down and saw McCrae shoot Victim. Id.



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at 165-67. He then watched McCrae and another person run away “up the

driveway.” Id. at 166. Mr. Alston was familiar with McCrea because they

hung around the same neighborhood and because they had attended high

school together. Id. at 161.

     Mr. Alston feared that Victim was his girlfriend’s younger brother, and

so after McCrea fled, he ran to check the identify of Victim. Id. at 167-68.

As he did, he came into contact with William Grier, who was also running

toward the scene of the shooting. Id. at 170. Mr. Grier testified that on the

night of the shooting, he was on Georgian Road changing the brakes on a

female friend’s car when he heard gunfire coming from the driveway behind

him. N.T., 11/15/12, at 10, 12. His friend indicated that her little brother

was in the area from which the gunshots came, and so Mr. Grier ran toward

the shots to check on him. Id. at 12. In a statement he gave to the police

four days after the shooting,3 Mr. Grier said that he saw McCrea “with his

hand out and [] saw the spark of the last shot. … [He] saw [Victim] falling

to the ground. He landed on his back.” Id. at 54. According to Mr. Grier,

McCrea then ran down the driveway and looked directly at Mr. Grier as he

did so. Id. at 56.

     Within minutes of the shooting, Victim was taken to the hospital by the

police where he was pronounced dead. N.T., 11/14/12, at 94, 97. Victim



3
 At trial, Mr. Grier recanted his statement and testified that he did not see
who shot Victim. N.T., 11/15/12, at 15.


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was shot seven times.       Id. at 127. Victim was struck in the chest, back,

arms and legs.       Id. at 128-144.     One shot to Victim’s torso eviscerated

multiple organs, including Victim’s heart, and lodged in Victim’s chest. Id.

at 128.      Although this shot alone would have been fatal, the medical

examiner testified that Victim’s death was caused by multiple gunshot

wounds. Id. at 130,157.

         We conclude that this evidence is sufficient to establish that McCrea

intentionally shot     Victim multiple      times in the     abdomen, back and

extremities (i.e., that McCrae applied deadly force to Victim’s person), and

that Victim’s death occurred as a result.             Accordingly, the evidence is

sufficient to support McCrae’s convictions.

         McCrea’s argument to the contrary is based on Mr. Grier’s denial, at

trial,   that   he   saw   McCrea   shoot    Victim    and   the   Commonwealth’s

impeachment of this testimony with the statement that Mr. Grier gave to the

police.4 McCrea argues that because there was nothing to corroborate this

out-of-court statement and because “there was ample reason to disbelieve

the statement[,]” there is insufficient evidence to support his conviction of

murder.      McCrea’s Brief at 8-9.      There are multiple problems with this

argument.       First, McCrea is ignoring Mr. Alston’s testimony, in which he

stated that he also witnessed McCrea shooting Victim. Second, there is no


4
  Detective Crone, the officer to whom Mr. Grier gave his statement, also
testified at trial and as part of his testimony, he read Mr. Grier’s entire
statement into evidence. N.T., 11/15/12, at 218-29.


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requirement that the Commonwealth corroborate a witness’s testimony, as it

has long been held that the testimony of a single witness, when believed by

the trier of fact, is sufficient to support a conviction. See Commonwealth

v. Filer, 846 A.2d 139, 141 (Pa. Super. 2004) (“The uncorroborated

testimony of a victim, if believed by the trier of fact, is sufficient to convict a

defendant[.]”).   Finally, McCrea’s argument regarding the credibility of Mr.

Grier’s statement to the police is addressed to the weight of the evidence,

Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008), and so

they are misplaced in his argument challenging the sufficiency of the

evidence.

      Although there is no merit to the claims raised by McCrea on appeal,

our review of the record reveals that his sentence is illegal.5       McCrea was

convicted of first-degree murder and sentenced on November 16, 2102. The

trial court sentenced McCrea, who was seventeen years old at the time he

committed the murder at issue, to life without parole. See N.T., 11/16/12,

at 183.     Prior to October 25, 2012, juveniles convicted of first-degree

murder were subject to mandatory sentences of life without parole.

18 Pa.C.S.A. § 1102(a)(1) (superseded by 18 Pa.C.S.A. § 1102.1).             Such

mandatory sentences for juveniles were declared unconstitutional by the

United States Supreme Court in Miller v. Alabama, __ U.S. __, 132 S. Ct.


5
  This Court may raise issues concerning the legality of a sentence sua
sponte. Commonwealth v. Stetler, 95 A.3d 864, 888 n.6 (Pa. Super.
2014).


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2455, 2469 (2012). Post Miller, a trial court may impose a sentence of life

without parole on a juvenile, but only upon consideration of certain age

related factors.   Miller, 132 S.Ct. at 2475; see also Commonwealth v.

Batts, 66 A.3d 286, 291 (Pa. 2013). In response to Miller, our Legislature

promulgated 18 Pa.C.S.A. § 1102.1, which provides, in relevant part, as

follows:

            (a) First degree murder.--A person who has been
            convicted after June 24, 2012, of a murder of the
            first degree, first degree murder of an unborn child
            or murder of a law enforcement officer of the first
            degree and who was under the age of 18 at the time
            of the commission of the offense shall be sentenced
            as follows:

                  (1) A person who at the time of the
            commission of the offense was 15 years of age or
            older shall be sentenced to a term of life
            imprisonment without parole, or a term of
            imprisonment, the minimum of which shall be at
            least 35 years to life.

18 Pa.C.S.A. § 1102.1(a)(1). In recognition of Miller’s holding that a life

sentence may not be imposed without consideration of certain age related

factors, subsection (d) of this statute includes a list of factors that a trial

court must consider before imposing a sentence of life without parole on a

juvenile. See 18 Pa.C.S.A. § 1102.1(d) (“In determining whether to impose

a sentence of life without parole under subsection (a), the court shall

consider and make findings on the record regarding the following … .”)

(emphasis added).




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      Section 1102.1 became effective on October 25, 2012, and therefore

was in effect at the time the McCrea was convicted and sentenced.

Nonetheless, the trial court imposed McCrea’s life sentence without

consideration of the factors contained in Section 1102.1(d). The imposition

of a sentence of life without parole on a juvenile without consideration of

age-related factors is unconstitutional and therefore illegal.   Miller, 132

S.Ct. at 2469; Batts, 66 A.3d at 291.      Accordingly, we vacate McCrea’s

judgment of sentence and remand for resentencing pursuant to Section

1102.1.

      Judgment of sentence vacated.       Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015




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