J-A15010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARKUS WILLIAMS                            :
                                               :
                       Appellant               :   No. 1652 MDA 2017

             Appeal from the Judgment of Sentence August 8, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005252-2016


BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.:                     FILED: JANUARY 11, 2019

        Appellant, Markus Williams, appeals from the aggregate judgment of

sentence of fifteen to thirty years of confinement, which was imposed after

his jury trial conviction for voluntary manslaughter based upon an

unreasonable belief, possession of firearm prohibited, and firearms not to be

carried without license.1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. See Trial Court Opinion, filed

Dec. 19, 2017, at 1-6. Therefore, we have no reason to restate them at length

here. For the convenience of the reader, we briefly note that, during the night

of July 29 into July 30, 2016, Appellant shot and killed Bryan Taylor, who had


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1   18 Pa.C.S. §§ 2503(b), 6105(a)(1), and 6106(a)(1), respectively.
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been standing next to Zachary “Sean” Harr, with whom Appellant had been

arguing.

      During trial, Harr testified that, prior to the shooting, Appellant had been

acting in an aggressive manner towards him and then said, “Cause I’m about

that gun play.” N.T. Trial at 187. The witness continued that he, Harr, did not

reach for nor display his own firearm during this entire conversation with

Appellant. See id., at 189-190. He also testified that he did not see Taylor

push Appellant, display a firearm, nor make any motions or gestures

suggesting he had a firearm. See id., at 188, 190. Harr acknowledged that

he gave a statement to police the day after the shooting. See id., at 191. He

further testified that he did not see a firearm removed from Taylor’s body.

See id., at 200.

      Another eyewitness, Jonathan Porter, who had been drinking with Harr

and Taylor at a few local bars earlier in the evening, testified that he did not

see Harr or Taylor display a weapon or reach into their pockets or waistbands

prior to the shooting. See id., at 120, 136. Porter further testified that, after

the shooting, he saw a firearm protruding from Taylor’s waistband. See id.,

at 139.

      During Porter’s cross-examination, defense counsel showed him a

photograph of Porter and Taylor, admitted as Defendant’s Exhibit 1, which

Porter confirmed had been taken at a bar shortly before the shooting. See id.,

at 148, 150-151. Defense counsel asked Porter three times if Taylor was


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holding a firearm in the photograph, which Porter denied each time. See id.,

at 148-150. The photograph was passed to each member of the jury. See id.,

at 151.

      Prior to the close of the Commonwealth’s case-in-chief, the parties

stipulated that Appellant “is a person not to possess a firearm in the

Commonwealth” and “was not licensed to carry and conceal a firearm in the

Commonwealth.” Id., at 209.

      Appellant testified that, immediately prior to the shooting, Harr was

acting aggressively towards him, smacking him on the chest, and asking him

if he had a problem with a man nicknamed “Poor-Poor.” Id., at 221. Appellant

continued that he was leaving when Harr reached behind his back, where the

butt of a firearm was protruding from his pants. See id., at 222, 229.

Appellant testified that another man, unknown to him at the time, but later

identified as Taylor, approached him, grabbed him by the throat, and shoved

him against a wall. See id., at 230. Appellant stated that, after Harr pulled

out his firearm, Appellant discharged his own weapon and fled in fear for his

life. See id., at 230-232. Appellant admitted that he did not report the incident

to police. See id., at 254.

      In rebuttal, the Commonwealth presented the testimony of Detective

Joseph A. Zimmerman, who stated that, during interrogation, Appellant

initially denied any involvement in the shooting. See id., at 276. Detective




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Zimmerman added that Appellant later changed his story and claimed self-

defense. See id., at 282.

       On March 26, 2017, a jury convicted Appellant of the aforementioned

crimes. Appellant later filed a post-sentence motion challenging the weight of

the evidence as to his voluntary manslaughter conviction but not requesting

a new trial, which the trial court denied. On October 23, 2017, Appellant filed

this timely2 direct appeal.

       Appellant presents the following issues for our review:

       [1.] The verdict of guilty as to Voluntary Manslaughter was
       based upon insufficient evidence where there was contradicted
       evidence that Appellant was backed against a wall while being
       assaulted by two other men - one who was known to the Appellant
       to be armed at the time of the attack.

       [2.] The verdict of guilty as to Voluntary Manslaughter was
       against the weight of the evidence where the Commonwealth’s
       witness Sean Harr, admitted disarming the victim after Appellant
       fired upon the deceased; moreover a trial photo showed the victim
       brandishing a gun prior to the shooting and being in a highly
       intoxicated condition, it belies reason to believe that the Appellant
       was not justified in using deadly force while being attacked while
       up against a wall by multiple men.

Appellant’s Brief at 7 (issues re-ordered to facilitate disposition; suggested

answers omitted).




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2Thirty days after September 21, 2017, was Saturday, October 21, 2017; the
next business day thereafter was October 23, 2017. See Pa.R.A.P. 903(a); 1
Pa.C.S.A. § 1908.




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       Appellant’s first3 claim is that the evidence is insufficient to support his

conviction “beyond a reasonable doubt” for voluntary manslaughter based

upon an unreasonable belief, Appellant’s Brief at 13-18,4 pursuant to §

2503(b) of the Crimes Code:

       A person who intentionally or knowingly kills an individual
       commits voluntary manslaughter if at the time of the killing he
       believes the circumstances to be such that, if they existed, would
       justify the killing under Chapter 5 of this title (relating to general
       principles of justification),[5] but his belief is unreasonable.
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3  In the “Argument” section of his brief to this Court, Appellant actually
combines his weight and sufficiency claims under one header, with no
subdivisions. See Appellant’s Brief at 13-18. Failure to isolate each argument
is in direct violation of Pa.R.A.P. 2119(a):

       The argument shall be divided into as many parts as there are
       questions to be argued; and shall have at the head of each part—
       in distinctive type or in type distinctively displayed—the particular
       point treated therein, followed by such discussion and citation of
       authorities as are deemed pertinent.

Appellant’s failure to distinguish between weight and sufficiency arguments
can result in waiver. See Commonwealth v. Widmer, 744 A.2d 745, 751-
752 (Pa. 2000); Commonwealth v. Birdseye, 637 A.2d 1036, 1039-1040
(Pa. Super. 1994) (“Because [appellants] failed to distinguish between their
sufficiency and weight of the evidence claims and presented no argument
regarding the weight of the evidence, we deem their weight of the evidence
issue waived.”). However, as we can discern which portions of Appellant’s
argument apply to his sufficiency claim and which apply to his weight claim,
we will not deem his issues waived for this reason.
4 Appellant does not challenge his firearms convictions. As noted, at trial, the
parties had stipulated that Appellant “is a person not to possess a firearm in
the Commonwealth” and “was not licensed to carry and conceal a firearm in
the Commonwealth.” N.T. Trial at 209.
5“The use of force upon or toward another person is justifiable when the actor
believes that such force is immediately necessary for the purpose of protecting



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18 Pa.C.S.A. § 2503(b) (emphasis added). Section 2503(b) is referred to as

“unreasonable belief voluntary manslaughter” or “sometimes loosely referred

to as ‘imperfect self-defense.’” Commonwealth v. Tilley, 595 A.2d 575, 582

(Pa. 1991); see also Commonwealth v. Sanchez, 82 A.3d 943, 980 (Pa.

2013).

       Appellant contends that his belief was reasonable that circumstances

existed justifying his killing of Taylor, because it was “reasonable for [him] to

believe that he was in imminent danger of death or serious bodily injury under

the circumstances.” Appellant’s Brief at 17. If Appellant’s belief was

reasonable, then he should have been found not guilty of voluntary

manslaughter. See Tilley, 595 A.2d at 582 (“[I]mperfect self-defense . . . is

imperfect in only one respect—an unreasonable rather than a reasonable

belief that deadly force was required to save the actor’s life”).

       “If the defendant properly raises self-defense . . . , the burden is on the

Commonwealth to prove beyond a reasonable doubt that the defendant’s act

was not justifiable self-defense.” Commonwealth v. Smith, 97 A.3d 782,

787 (Pa. Super. 2014) (citation and internal quotation marks omitted).

       In reviewing the sufficiency of the evidence, our standard of
       review is as follows:

       Whether viewing all the evidence admitted at trial 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
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himself against the use of unlawful force by such other person on the present
occasion.” 18 Pa.C.S.A. § 505(a).


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      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. . . .
      Finally, 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. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and

internal brackets omitted) (some formatting), appeal denied, 174 A.3d 558

(Pa. 2017).

      Viewing all the evidence admitted at trial in the light most favorable to

the Commonwealth as verdict winner, we agree with the trial court that the

Commonwealth provided sufficient evidence to establish that Appellant’s belief

that he was in danger of death or serious bodily injury was unreasonable and

his act hence was not justifiable self-defense. See Smith, 97 A.3d at 787.

Harr testified that Appellant was the initial aggressor and that neither Harr nor

the actual victim, Taylor, had displayed their firearms to Appellant or indicated

with words or actions that they were carrying firearms. See N.T. Trial at 187-

90. Another eyewitness confirmed that neither Harr nor Taylor had threatened

Appellant prior to the shooting. See id., at 136. That witness also noted that

Taylor had not pulled out his firearm, which was still in his waistband after he

was shot. See id., at 139. This testimony was sufficient to enable the jury, as

fact-finder, to find beyond a reasonable doubt that Appellant’s belief that he

was in danger of death from or unlawful force by Harr and/or Taylor was

unreasonable and, thus, sufficient to convict him of voluntary manslaughter




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based upon an unreasonable belief. See Fortson, 165 A.3d at 14; 18

Pa.C.S.A. § 2503(b).

      Appellant next contends that his conviction was against the weight of

the evidence. See Appellant’s Brief at 13. According to Appellant, “there was

. . . evidence that [he] was backed against a wall while being assaulted by

two other men - one who was known to the Appellant to be armed at the time

of the attack.” Id. He concludes that

      [i]t was objectively reasonable for Appellant to believe, at that
      moment, that he was in imminent danger of death or serious
      bodily injury. This is especially true given that Commonwealth’s
      witness Sean Harr, admitted disarming the victim after Appellant
      fired a single shot upon the deceased, N.T. [Trial] at 139, and a
      trial photo showed the victim brandishing a gun prior to the
      shooting and being in a highly intoxicated condition.

Id., at 17-18.

      As a preliminary matter, a challenge to the weight of the evidence must

be preserved by a motion for a new trial. See Pa.R.Crim.P. 607(A). The Rule

provides:

      A claim that the verdict was against the weight of the evidence
      shall be raised with the trial judge in a motion for a new trial:

         (1) orally, on the record, at any time before sentencing;

         (2) by written motion at any time before sentencing; or

         (3) in a post-sentence motion.

Id. “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 A.3d 478, 490 (Pa. Super. 2014) (citation omitted).



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      Here, although Appellant challenged the weight of the evidence before

the trial court in a written motion, that motion did not request a new trial.

See Pa.R.Crim.P. 607(A). Hence, Appellant’s challenge to the weight of the

evidence is waived. See id.; Thompson, 93 A.3d at 490.

      Assuming solely for the sake of argument that Appellant’s challenge to

the weight of the evidence was properly preserved, our standard of review for

a challenge to the weight of the evidence is as follows:

      The weight of the evidence is exclusively for the finder of fact, who
      is free to believe all, none or some of the evidence and to
      determine the credibility of the witnesses.

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence.

Commonwealth v. Talbert, 129 A.3d 536, 545–46 (Pa. Super. 2015)

(internal brackets, citations, and quotation marks omitted; some additional

formatting).

      Although Appellant testified that Harr and Taylor were the aggressors

and that he had feared for his life, his testimony was contradicted by two other

witnesses, who testified that Appellant was the aggressor and that neither

Harr nor Taylor displayed a weapon, moved as if to retrieve a weapon, or

otherwise threatened Appellant. Compare N.T. Trial at 221-222, 229-232,

with id., at 136, 187-190.

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       As for Appellant’s assertions in his brief that the “Commonwealth’s

witness Sean Harr, admitted disarming the victim after Appellant fired a single

shot upon the deceased, N.T. [Trial] at 139, and a trial photo showed the

victim brandishing a gun prior to the shooting[,]” Appellant’s Brief at 18, we

observe that these allegations are not supported by the record. Page 139 of

the notes of testimony from trial transcribes Porter’s testimony, not Harr’s,

and we find nothing in Harr’s testimony stating that he disarmed Taylor. See

N.T. Trial at 165-211. In fact, Harr explicitly testified that he did not see a

firearm removed from Taylor’s corpse. See id., at 201. As for the photograph

admitted as Defendant’s Exhibit 1, Porter denied three times that Taylor was

holding a firearm in the photograph; nevertheless, when the photograph was

passed to each member of the jury to examine, the jurors could make their

own determination as to whether Taylor was holding a firearm in the image.

See id., at 148-150.6

       Ultimately, the jury chose to believe Harr and Porter over Appellant, and

all credibility determinations are the prerogative of the jury as fact-finder.

See Talbert, 129 A.3d at 545–46. We cannot and will not substitute our



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6 However, there is no dispute that Taylor was armed on the night that he was
killed, as Porter testified during direct examination that he saw a firearm
tucked into Taylor’s waistband after Taylor was shot. See N.T. Trial at 139.
The fact that Taylor had a firearm on his person on the night he was killed
does not establish that he threatened Appellant with the firearm or even
displayed it to Appellant, and, therefore, this fact does not contradict Harr’s
and Porter’s testimony. See id., at 136, 139, 187-190.

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judgment for that of the jurors, as Appellant now requests we now do.

Additionally, the jury may have doubted Appellant’s veracity during some of

his testimony, because, despite his claim that he feared for his life, he did not

report the incident to police, and, when questioned, he initially lied to

authorities about the shooting. Compare N.T. Trial at 230-32 with id., at

254, 276, 282. By contrast, Harr gave a statement to police the day after the

shooting. See id., at 191.

        Based upon the testimony presented by the Commonwealth, particularly

that of Harr and Porter, the jury found that, while Appellant may have

sincerely believed that he needed to defend himself from danger of death or

great bodily harm, such belief was unreasonable given the circumstances.7

Accordingly, had we addressed this claim on its merits, we would have found

no abuse of discretion in the trial court’s conclusion that the decision to convict

Appellant of voluntary manslaughter based upon an unreasonable belief was

not against the weight of the evidence.


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7   In its opinion, the trial court speculates:

        [I]n the heat of the conflict (we note that from the testimony this
        appeared to be a mere disagreement and does not rise to the level
        of a fight), Appellant failed to evaluate the danger carefully and
        make a decision about how much force was needed to protect
        himself. Appellant had every opportunity to try and avoid the
        confrontation and leave the scene of the shooting, thus removing
        himself from the situation.

Trial Court Opinion, filed Dec. 19, 2017, at 10.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/11/2019




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