J-S93019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                               Appellee

                         v.

TIMOTHY I. HIGHSMITH,

                               Appellant                     No. 309 EDA 2015


            Appeal from the Judgment of Sentence August 15, 2014
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0000376-2013


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

DISSENTING MEMORANDUM BY PLATT, J.:                           FILED MAY 26, 2017

        I respectfully dissent.       For a sufficiency challenge, as recognized in

principle by the learned Majority, we view the evidence in the light most

favorable to the Commonwealth, as verdict winner. (See Majority, at *24).

Applying this standard, I would affirm Appellant’s judgment of sentence for

his third-degree murder conviction.

        It is well-settled that on appellate review, in evaluating a sufficiency

claim,     “[w]e    do        not   weigh   the   evidence    or   make   credibility

determinations[,]” nor can we substitute our judgment for that of the

factfinder. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010),



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S93019-16



appeal denied, 29 A.3d 796 (Pa. 2011) (citation omitted); see also

Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014).

      In my view, the Majority misapplies our standard of review by re-

weighing the evidence and accepting as credible the self-serving testimony

of Appellant that he shot Scott three times in self-defense when Scott

grabbed his arm and leapt towards him. (See N.T. Trial, 6/10/14, 77-81,

120-21).   The trial court sitting as factfinder expressly found Appellant’s

testimony that he acted out of fear for his life “incredible.”     (Trial Court

Opinion, 3/17/16, at 15; see id. at 13 (“Although [Appellant] testified that

he killed Mr. Scott because he feared for his life, the facts show that this was

not a credible claim.”)).

      Moreover, in accepting Appellant’s version of events, the Majority

overlooks testimony indicating that Scott was not within grabbing distance of

Appellant’s gun when Appellant fired the shots.      Disinterested eyewitness

Susan Fournier testified that Appellant and Scott were standing six or seven

feet apart during the incident and, just seconds before the shooting, they

had stopped arguing and were walking away from one another in opposite

directions. (See N.T. Trial, 6/09/14, at 170-71, 173, 175-81). Zahira Ali,

who was walking home with Appellant, testified that Scott was following

them at a distance of a car length, and that she did not observe the men

physically engage at any point.      (See id. at 121, 127-29, 133).         The

Commonwealth also presented ballistics evidence indicating that the men




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were at least thirty-six inches apart when Appellant fatally shot Scott. (See

id. at 56, 217, 228-29).

      From my independent review of this case, I would conclude that the

record amply supports the findings and credibility determinations of the trial

court and its rejection of the voluntary manslaughter charge.      Under our

standard of review, this Court is not at liberty to re-weigh the evidence or

disturb the trial court’s findings by viewing the record in the light most

favorable to Appellant, rather than the Commonwealth, and substituting

our judgment on Appellant’s imperfect self-defense claim.        Therefore, I

would affirm the judgment of sentence. Accordingly, I respectfully dissent.




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