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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
JESSE LEE McCLELLAND,                    :         No. 434 WDA 2017
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, September 4, 2015,
                  in the Court of Common Pleas of Erie County
              Criminal Division at No. CP-25-CR-0000739-2015


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 25, 2017

        Jesse Lee McClelland appeals the September 4, 2015 judgment of

sentence of the Court of Common Pleas of Erie County in which the trial

court sentenced appellant to serve 96 to 192 months of imprisonment after

a jury convicted him criminal attempt--criminal homicide, 2 counts of

aggravated assault, reckless endangerment, and firearms not to be carried

without a license.1      The trial court also placed appellant on 48 months’

probation consecutive to the sentence of confinement for possession of a

firearm by a minor and found him guilty of a local ordinance regarding the

discharge of firearms.2 After careful review, we affirm.


118 Pa.C.S.A. §§ 901(a) -2501(a), 2702(a)(1), 2702(a)(4), and 2705, and
6016(a)(1).

2   18 Pa.C.S.A. § 6110.1(a) and Local Ordinance § 725.05.
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     The trial court conducted a jury trial on July 20, 2015. Officer Cheryl

Frey (“Officer Frey”) of the City of Erie Police Department (“EPD”) testified

that on December 9, 2014, at approximately 4:00 p.m., she responded to a

dispatch concerning “shots fired” and found Talynn Lucas (“Lucas”) sitting on

the curb on the southwest corner of Sixth and Walnut Streets. Lucas was

bleeding “[o]n the outside palm of his hand.” (Notes of testimony, 7/20/15

at 16-18.) Officer Frey spoke with a witness, Johnnie Burkett (“Burkett”),

who lived at 413 Walnut Street. (Id. at 23.)

     Lucas testified that prior to getting shot, he entered a convenience

store on Fourth Street with another person to buy blunts. (Id. at 29.) After

exiting the store, Lucas was walking on Walnut Street when he heard a

gunshot.    He then started running.    Overall, he believed he heard four or

five shots. (Id. at 31-32.) He did not remember seeing anyone pull out a

gun, though he admitted he was under the influence of marijuana at the

time. (Id. at 33-34.) Lucas was struck with a bullet on his left hand. (Id.

at 34.)    Lucas’s wound did not require stitches.   He testified that at the

hospital, the wound was cleaned and wrapped. (Id. at 36.)

     Burkett testified that at the time of the shooting, she was sitting in the

living room of her apartment crocheting near a window.        (Id. at 47-48.)

When she heard the gunshots, she looked out the window and saw the

shooter firing a weapon. Burkett testified that the shooter was wearing “[a]

gray hoodie and a dark colored jacket over the hoodie.”          (Id. at 50.)



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Burkett also testified that she saw the shooter’s face, face to face, for a few

brief seconds.   (Id. at 51.) Burkett was able to identify the shooter from

surveillance video from the nearby convenience store. (Id. at 54.) Burkett

identified the shooter from what he was wearing and his facial features.

(Id. at 55.) Burkett testified that she was 100 percent sure that appellant

was the shooter. (Id. at 57.)

      Detective Christopher Janus of the EPD testified that appellant was

17 years old at the time of the shooting and an individual must be at least

21 years old to obtain a license to carry a firearm. (Id. at 68.)

      Following the presentation of the Commonwealth’s case, appellant

moved for judgment of acquittal on the criminal attempted homicide charge.

The trial court denied the motion. Appellant did not present any witnesses.

The jury found appellant guilty of all charges before it.      The trial court

convicted him of firearms--discharge prohibited, a summary offense.

      On September 4, 2015, the trial court imposed the sentence set forth

above.   The trial court merged the aggravated assault counts and the

reckless endangerment count with criminal attempt--criminal homicide. On

August 22, 2016, appellant filed a petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appointed counsel filed a

supplemental petition on October 21, 2016. After an evidentiary hearing on

November 22, 2016, relief was granted such that appellant’s rights to file a

post-sentence motion and a direct appeal were reinstated. On February 14,



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2017, appellant moved for a new trial and arrest of judgment nunc pro

tunc.     The trial court denied the motion on February 15, 2017.            On

March 15, 2017, appellant filed a notice of appeal. Also, on March 15, 2017,

the trial court ordered appellant file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).               Following a

court-approved extension, appellant complied with the order on April 5,

2017.     On May 9, 2017, the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

        Appellant raises the following issues for this court’s review:

              A.    Whether the [trial] court abused its discretion
                    and committed legal error in failing to grant
                    the motion for acquittal as to the criminal
                    attempt-homicide      count    in    that    the
                    circumstances including the bullet merely
                    grazing the hand of the victim failed to satisfy
                    the legal and factual elements of that crime?

              B.    Whether the Commonwealth failed to present
                    sufficient evidence to support the respective
                    convictions as a whole given the paucity of
                    evidence    identifying [appellant]  as   the
                    shooter?

Appellant’s brief at 2.

        Initially, appellant contends that the evidence was insufficient to

support a conviction for criminal attempt--criminal homicide given the

limited nature of Lucas’s injuries.

              A claim challenging the sufficiency of the evidence is
              a question of law. Commonwealth v. Widmer,
              560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In



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             that case, our Supreme Court set            forth   the
             sufficiency of the evidence standard:

                  Evidence will be deemed sufficient to
                  support the verdict when it establishes
                  each material element of the crime
                  charged and the commission thereof by
                  the accused, beyond a reasonable doubt.
                  Commonwealth v. Karkaria, 533 Pa.
                  412, 625 A.2d 1167 (1993). Where the
                  evidence offered to support the verdict is
                  in contradiction to the physical facts, in
                  contravention to human experience and
                  the laws of nature, then the evidence is
                  insufficient as a matter of law.
                  Commonwealth v. Santana, 460 Pa.
                  482, 333 A.2d 876 (1975).           When
                  reviewing a sufficiency claim the court is
                  required to view the evidence in the light
                  most favorable to the verdict winner
                  giving the prosecution the benefit of all
                  reasonable inferences to be drawn from
                  the evidence.       Commonwealth v.
                  Chambers, 528 Pa. 558, 599 A.2d 630
                  (1991).

             Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

      The crime of criminal homicide is defined as “(a) Offense defined.--A

person is guilty of criminal homicide if he intentionally, knowingly, recklessly

or negligently causes the death of another human being.”          18 Pa.C.S.A.

§ 2501(a).

      The crime of criminal attempt is defined as “(a) Definition of

attempt.--A person commits an attempt when, with intent to commit a




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specific crime, he does any act which constitutes a substantial step toward

the commission of that crime.” 18 Pa.C.S.A. § 901(a).

      To prove criminal attempt--criminal homicide, the Commonwealth

must establish that a substantial step was taken with the specific intent to

kill. See Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa.Super.

2005). “The substantial step test broadens the scope of attempt liability by

concentrating on the acts the defendant has done and does not any longer

focus on the acts remaining to be done before the actual commission of the

crime.”   Commonwealth v. Gilliam, 417 A.2d 1203, 1205 (Pa.Super.

1980). “The mens rea required for first-degree murder, specific intent to

kill, may be established from circumstantial evidence.” Commonwealth v.

Schoff, 911 A.2d 147, 160 (Pa.Super. 2006). “[T]he law permits the fact

finder to infer that one intends the natural and probable consequences of his

acts[.]” Commonwealth v. Gease, 696 A.2d 130, 133 (Pa. 1997).

      Appellant asserts that because the shooting occurred in broad daylight

with five or six shots fired and the only injury was a grazing of the hand,

there was no evidence sufficient to establish a specific intent to kill or that a

substantial step was undertaken toward the commission of a homicide.

      The trial court concluded that the evidence, that appellant fired five or

six shots in Lucas’s direction at relatively close range, was sufficient to

establish the crime. The trial court reasoned that Lucas’s testimony that he

was fired upon after he left the convenience store, the surveillance video



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from the convenience store that revealed a person whose attire matched

Burkett’s description of what appellant wore, and Burkett’s testimony that

she saw appellant fire a gun in the direction of where it was determined that

Lucas was headed were sufficient evidence to establish the crime. The trial

court explained that the fact that only one bullet hit Lucas and that it only

grazed him did not detract from the sufficiency of the evidence as the

infliction of serious bodily injury was not an enumerated element of attempt

predicated on homicide.     See Commonwealth v. Reid, 867 A.2d 1280,

1284 (Pa.Super. 2005), appeal denied, 890 A.2d 1058 (2005).

       This court agrees with the trial court that the evidence was sufficient

to establish the conviction for criminal attempt--criminal homicide.

       Appellant next contends that there was insufficient evidence to support

his convictions as a whole because of the lack of evidence that established

him as the shooter. Appellant argues that Burkett’s testimony was based on

viewing the shooter for several seconds from a distant vantage point such

that   reliance   on   Burkett’s   identification   based   on   clothing,   facial

characteristics, and the fact that he was dark skinned was insufficient to

prove that appellant was the shooter.

       The trial court determined that the Commonwealth established the

identification of appellant as the shooter through the eyewitness testimony

of Burkett. The trial court explained that Burkett identified appellant as the




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shooter three times and that the surveillance video corroborated her

testimony.

      The jury found Burkett credible. The trier of fact, in this case the jury,

is free to believe, all, part, or none of the evidence presented when making

credibility determinations.   Commonwealth v. Beasley, 138 A.3d 39, 45

(Pa.Super. 2016). In deciding a sufficiency of the evidence claim, this court

may not reweigh the evidence and substitute our judgment for that of the

fact-finder.   Commonwealth v. Williams, 153 A.3d 372, 375 (Pa.Super.

2016). Here, appellant argues that the Commonwealth’s entire case rested

on the credibility of Burkett which was a “very slim reed of reliability when

evaluating her testimony in its entirety.” (Appellant’s brief at 8.) It appears

that appellant is challenging the credibility determination made by the jury,

which this court may not disturb.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/25/2017




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