J-S23022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STANLEY POSTELL

                            Appellant                  No. 512 EDA 2015


          Appeal from the Judgment of Sentence September 26, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008438-2013


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                  FILED JULY 13, 2016

        Stanley Postell appeals from the judgment of sentence entered on

September 26, 2014, in the Court of Common Pleas of Philadelphia County,

following his conviction by jury of first-degree murder1 and related offenses,

in the fatal shooting of Bernard Scott.        The mandatory sentence of life

imprisonment was imposed immediately following the jury verdict. In this

timely appeal, Postell raises four issues.      The first is a claim there was

insufficient evidence to prove Postell committed an “intentional killing.”

Issues 2, 3 and 4 are all aspects of Postell’s claim that the Commonwealth

failed to disprove his claim of self-defense. We will address these claims as

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
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one.   After a thorough review of the submissions by the parties, relevant

law, and the certified record, we affirm.

       We begin by relating the factual background as determined and related

by the trial court in its April 27, 2015, Pa.R.A.P. 1925(a) opinion.

       In the days leading up to April 11, 2013, a group of high school
       students associated with the Lansdowne section of Philadelphia,
       and a group of high school students associated with the
       Wynnefield section of Philadelphia, had an escalating series of
       conflicts. On April 11, 2013, Basil Harrison from Wynnefield was
       going to fight Anthony White, known as “Tone,” from Lansdowne
       as the next step in this conflict. On April 11, 2013, prior to the
       fight, Harrison met with his friends from Wynnefield, Tyler
       Blango and Rahim Pleasant. Harrison informed Blango and
       Pleasant that there was going to be a fight at the Tustin
       Playground, across from the Overbrook High School, and that he
       thought some of the people who would be present would have
       guns. Blango was armed with a silver Colt .38 revolver with duct
       tape on the handle and rubber bands replacing the missing
       spring that put tension on the weapon’s hammer.

       At approximately 3:30 in the afternoon, a group from
       Wynnefield, which included Harrison, Blango, and Pleasant,
       congregated at the Tustin Playground, in the outfield of the
       baseball diamond, where a group from Lansdowne was already
       present.    [Postell] and Jaquan Jordan [co-defendant] were
       present with the students from Lansdowne.           [Postell] was
       wearing a red hoody sweatshirt with light pants and possessed a
       .45 caliber semi-automatic handgun. By the time he arrived at
       the playground, Blango had been told that [Postell] was going to
       have a gun. Approximately 30 students were present on the
       playground, forming a circle around the fight location. Although
       Harrison and Tone were supposed to fight, Tone backed out of
       the fight for an unknown reason. Instead, Daquan Briscoe
       stepped in for Harrison while Jordan stepped in for Tone.




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        While Briscoe and Jordan were fighting, [Postell], Blango and
        Samir[2] (a friend of Blango) got into a verbal argument. During
        this argument, [Postell] stated, “You got your gun? Because I
        got my gun too.” [Postell] then drew his gun and shot at Blango
        and the crowd. Thereafter, Blango pulled his gun and attempted
        to return fire, but Blango’s gun did not work. Jordan was also in
        possession of a firearm and shot it during the exchange, though
        it is unclear at whom he was shooting. Upon the shots being
        fired, the spectators watching the fight began to flee from the
        area. Blango was shot once in the hip and retreated away from
        the playground to the Little Caesar’s Pizza store across the
        street. Blango was later taken to the hospital by police, where
        surgeons removed a portion of Blango’s small intestine and
        colon.

        While [Postell] was shooting at Blango, a fight spectator,
        Bernard Scott, was hit. Antoine Gardiner, an eyewitness from
        the street who was in his truck, stopped his vehicle and, with the
        assistance of a few students from the playground, placed Scott
        into his truck and transported him to Lankenau Hospital. Scott
        was hit three times, once in the right wrist, once through the
        right abdomen, and once in the left wrist.

        After shooting Blango and into the crowd, [Postell] fled towards
        60th Street. Pleasant, who had been watching the fight, obtained
        a gun from Samir and chased after [Postell]. Approaching
        [Postell], Pleasant shot at [Postell] approximately four or five
        times, striking him once in the back.

        Mark Robinson, an eyewitness to the shooting and [Postell’s]
        flight, directed police officers to the direction [Postell] had fled.
        Police found [Postell] shortly thereafter as he walked near the
        corner of 61st Street and Jefferson Street. Robinson and Donald
        Jones, another eyewitness to [Postell’s] flight, were transported
        to [Postell’s] location, where they positively identified [Postell].
        Police then placed [Postell] under arrest and were about to
        transport him to police headquarters when [Postell] stated, “I’m
        shot, I’m shot in the back.” The arresting officers verified that

____________________________________________


2
    Samir’s full name is not revealed in the certified record.




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          [Postell] had been shot and transported him to the University of
          Pennsylvania Hospital.

          [Postell] was interviewed at hospital, where he denied being
          present at the fight. [Postell] also denied having a gun that day.
          [Postell] further stated that he must have been shot while
          Pleasant or Blango were shooting at an unidentified male in a
          plaid shirt. After [Postell’s] release from the hospital the next
          day, he provided another statement to police. In his second
          interview, [Postell] stated he was present in the playground and
          that, while the fight was ongoing, “Rahim[’s] brother” took a gun
          from a “little short boy on [a] bike,” pointed it at everybody, and
          started shooting. [Postell] further stated that he was shot in the
          back and that he then drew his gun and indiscriminately fired
          back as he was running away. [Postell] admitted to possessing
          a “big” gun, either a .40 or .45 caliber pistol.

          Police recovered five .45 caliber fired cartridge casings at the
          scene of the shooting. Another four .380 caliber fired casings
          were recovered at the alley where Harrison shot at [Postell].

Trial Court Opinion, 4/27/2015, at 2-5 (citations to notes of testimony

omitted).      As a result of the gunfire, Blango was wounded and Scott was

killed.

          In light of the above facts, we now look to Postell’s claims of

insufficient evidence. Initially, we note:

          The standard of review for claims of insufficient evidence is well-
          settled. With respect to such claims, we consider the evidence in
          the light most favorable to the Commonwealth as verdict winner.
          Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super.
          2005). In that light, we decide if the evidence and all reasonable
          inferences from that evidence are sufficient to establish the
          elements of the offense beyond a reasonable doubt. Id. We keep
          in mind that it was for the trier of fact to determine the weight of
          the evidence and the credibility of witnesses. Id. The jury was
          free to believe all, part or none of the evidence. Id. This Court
          may not weigh the evidence or substitute its judgment or that of
          the factfinder. Id.
Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).

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       Additionally, “a mere conflict” in the testimony of the witnesses does

not render the evidence insufficient because “it is within the province of the

factfinder to determine the weight to be given to the testimony and to

believe all, part, or none of the evidence.” Commonwealth v. Montini, 712

A.2d 761, 767-78 (Pa. Super. 1998). “The Commonwealth may sustain its

burden of proof of proving every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence.”       Commonwealth v.

Bragg, 133 A.3d 328, 330-31 (Pa. Super. 2016) (citation omitted). Finally,

“If the record contains support for the verdict, it may not be disturbed.”

Commonwealth v. Adams, 882 A.2d 496, 499 (Pa. Super. 2005) (citation

omitted).

       In his first claim, Postell argues there was insufficient evidence to

prove beyond a reasonable doubt he engaged in an “intentional killing.” The

doctrine of “transferred intent”3 renders Postell legally culpable for the

homicide of Scott, an unintended victim, if Postell had the specific intent to

kill Blango when he fired at Blango. Postell argues he was justified in firing

at Blango and therefore had no criminal intent. Therefore, he concludes, he

neither attempted to murder Blango nor murdered Scott.
____________________________________________


3
  The doctrine of transferred intent provides the intent to murder may be
transferred where the person actually killed is not the intended victim. See
Commonwealth v. Padilla, 80 A.3d 1238, 1247 (Pa. 2013); 18 Pa.C.S. §
303(b)(1). Accordingly, if Postell intended to kill Blango but actually killed
Scott, the intent is legally transferred to include Scott.




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      Although Postell argues this claim in terms of self-defense, we will

initially review the trial court’s determination that, as a matter of law, there

was sufficient evidence to support the jury’s determination that Postell

possessed the specific intent to kill Blango and that Postell took a substantial

step to accomplish that goal. See Commonwealth v. Blakeney, 946 A.2d

645 (Pa. 2008) (attempted murder requires proof beyond a reasonable

doubt defendant possessed specific intent to kill and took a substantial step

toward that goal). The trial court noted, and the certified record supports,

the facts that Postell and Blango and Samir engaged in an argument prior to

the shooting.    While arguing with Samir, Postell was clutching his gun.

During the argument, Postell stated to Blango, “You got your gun? Because

I got my gun too.” N.T. 9/9/2014 at 92. Both men pulled their guns and

Postell fired at Blango, hitting him in the hip/abdomen. The wound required

surgery to repair, with the doctors removing portions of Blango’s small

intestine and colon. The trial court reasoned:

      The above evidence establishes that [Postell], after arguing with
      Blango, pulled a large caliber handgun and fired it multiple times
      in Blango’s direction, striking him once in the hip. From that
      evidence, a reasonable juror could conclude that [Postell] acted
      with the specific intent to kill Blango. See [Commonwealth v.]
      Manley, 985 A.2d [256,] 272 [(Pa. Super. 2009) (firing a bullet
      in the general area in which vital organs are located, can, in and
      of itself, be sufficient to prove specific intent to kill)]. By firing
      those bullets, [Postell] took a substantial step towards killing
      Blango. Accordingly, the evidence was sufficient for the jury to
      find that [Postell] attempted to kill Tyler Blango.

Trial Court Opinion, 4/27/2015, at 9.



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      Accordingly, our review confirms that the certified record supports the

determination that Postell engaged in an intentional killing and that the

doctrine of transferred intent was applicable.

      Postell’s final three issues all involve his claim that he is not legally

culpable for homicide because he fired his gun at Blango in self-defense.

Specifically, Postell argues: (1) the elements of justifiable self-defense were

raised and satisfied, (2) the Commonwealth did not prove beyond a

reasonable doubt that Postell’s acts were not justifiable self-defense, and (3)

if the killing of Scott was justified, Postell cannot be guilty of attempted

murder and aggravated assault of Blango. We note that the first “issue” is

simply a statement that Postell believes the evidence supported his claim of

self-defense; there is no actual claim of error within the brief under this

heading, and, in fact, the trial court gave a charge on self-defense.

Additionally, the third issue is basically a restatement of Postell’s initial claim

that he did not engage in an intentional killing. The only salient point in the

remaining three claims is Postell’s assertion that the Commonwealth did not

disprove his claim of self-defense.

      Self-defense, using deadly force, is defined by statute:

      The use of deadly force is not justifiable under this section
      unless the actor believes that such force is necessary to protect
      himself against death, serious bodily injury, kidnapping or sexual
      intercourse compelled by force or threat; nor is it justifiable if:

         (i) the actor, with the intent of causing death or serious
         bodily injury, provoked the use of force against himself in
         the same encounter; or


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         (ii) the actor knows that he can avoid the necessity of
         using such force with complete safety by retreating, except
         the actor is not obliged to retreat from his dwelling or
         place of work, unless he was the initial aggressor or is
         assailed in his place of work by another person whose
         place of work the actor knows it to be.

18 Pa.C.S. § 505(b)(2)(i)-(ii).

      Case law has interpreted this statute as follows:

      According to our Supreme Court, the justified use of deadly force
      requires:

         a) the actor was free from fault in provoking or continuing
         the difficulty which resulted in the use of deadly force; b)
         the actor must have reasonably believed that he was in
         imminent danger of death or serious bodily injury, and that
         there was a necessity to use such force in order to save
         himself or others therefrom; and c) the actor did not
         violate any duty to retreat or to avoid the danger.

      Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172,
      1174 (1995). The defendant has no “burden to prove” his self-
      defense claim. Commonwealth v. Torres, 564 Pa. 219, 224,
      766 A.2d 342, 345 (2001). The Supreme Court explained the
      evidentiary burdens as follows:

         While there is no burden on a defendant to prove the [self-
         defense] claim, before that defense is properly at issue at
         trial, there must be some evidence, from whatever source
         to justify a finding of self-defense. If there is any evidence
         that will support the claim, then the issue is properly
         before the fact finder.
      Id. (internal citations omitted). See also Commonwealth v.
      Bullock, 948 A.2d 818, 824 (Pa. Super. 2008) (stating same
      standard). If the defendant properly raises “self-defense under
      Section 505 of the Pennsylvania Crimes Code, the burden is on
      the Commonwealth to prove beyond a reasonable doubt that the
      defendant's     act    was     not   justifiable   self-defense.”
      Commonwealth v. McClendon, 874 A.2d 1223, 1229-30 (Pa.
      Super. 2005).


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          The Commonwealth sustains this burden if it establishes at
          least one of the following: 1) the accused did not
          reasonably believe that he was in danger of death or
          serious bodily injury; or 2) the accused provoked or
          continued the use of force; or 3) the accused had a duty to
          retreat and the retreat was possible with complete safety.
       Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super.
       2008), appeal denied, 600 Pa. 743, 964 A.2d 894 (2009)
       (quoting McClendon, supra at 1230). The Commonwealth must
       establish only one of these three elements beyond a reasonable
       doubt to insulate its case from a self-defense challenge to the
       evidence. Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa.
       Super. 2000), appeal denied, 566 Pa. 657, 782 A.2d 542 (2001).

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014).

       Additionally relevant to this matter,

       As the Mouzon[4] Court observed, the use of deadly force itself
       “cannot be viewed in isolation with [the victim] as the sole
       physical aggressor and [the defendant] acting in responsive self-
       defense. [T]his would be an incomplete and inaccurate view of
       the circumstances for self-defense purposes.” Id. at 549, 53
       A.3d at 751. To claim self-defense, the defendant must be free
       from fault in provoking or escalating the altercation that led to
       the offense, before the defendant can be excused from using
       deadly force. Id. (emphasis added).

Smith, supra, at 787-88.

       Our review of the certified record indicates that it was Postell who

introduced firearms to the already volatile situation when he first clutched

his gun while arguing with Samir and Blango, and then further escalated the

situation by lifting his shirt and asking Blango, “You got your gun? Because

I got my gun too.”       N.T. 9/9/2014 at 92.    For this reason alone, Postell’s

____________________________________________


4
    Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012).



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claim of self-defense fails.   See, Commonwealth v. Alvin, 516 A.2d 376

(Pa. Super. 1986) (actor must be free from fault in provoking or continuing

difficulty which resulted in injuries).

      Nevertheless, we also agree with the trial court’s analysis, stating:

      [T]he Commonwealth offered compelling evidence to refute
      [Postell’s] self-defense claim. Blango testified that he watched
      as [Postell] “clutched on his gun” before Blango and [Postell]
      both drew their guns. Likewise, Pleasant testified that both
      Blango and [Postell] reached for their guns and that [Postell]
      started shooting. Pleasant clarified that Blango did not have his
      firearm fully drawn by the time [Postell] started shooting.
      Harrison testified that [Postell] told Blango before drawing his
      gun and shooting at Blango, “You got your gun? Because I got
      my gun too.” Eyewitness Mark Robinson also testified that
      [Postell] pulled a gun from his waist and started shooting,
      though Robinson did not see anyone else attempt to shoot at
      that time. Robinson further testified that [Postell] did not begin
      to flee the scene until after he had shot several times.
      Eyewitness Antoine Gardiner also testified that [Postell] was
      standing still at the time he was shooting.          Finally, when
      detained by police officers, [Postell] initially denied any
      involvement in the shooting at the playground and denied that
      he was in possession of or fired a gun, instead alleging that he
      had been accidentally shot while Pleasant and Blango attempted
      to shoot some unidentified third individual. [Postell] did not
      acknowledge that he was even present on the playground until
      the next day, when he told the police that he only drew his
      firearm after having been shot himself as he was fleeing the
      scene.     However, [Postell’s] second statement was soundly
      refuted by all other eyewitness accounts and the physical
      evidence, which detailed that [Postell] fired the first shots, that
      Blango’s gun never fired, and that [Postell] was shot by Pleasant
      only after he had fled the scene and was chased down by
      Pleasant outside of the playground.

      This compelling evidence established that [Postell] provoked the
      encounter by making threatening statements about possessing a
      gun and clutching at his waistband, and then started the
      gunfight by shooting at Blango on the Tustin Playground.


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      Accordingly, there was ample evidence for the jury to conclude,
      beyond a reasonable doubt, that [Postell] did not act in
      justifiable self-defense. Moreover, [Postell’s] culpability as the
      first shooter was corroborated by his behavior after the shooting,
      which included fleeing the scene, disposing of his gun, and lying
      to police about his involvement in the playground shooting.

Trial Court Opinion, 4/27/2015 at 11-13 (citations to notes of testimony

omitted).

      In light of the above, it is clear that contrary to his assertions, Postell

did not fulfill all the elements to obtain the benefit of a claim of self-defense,

the Commonwealth disproved his claim of self-defense beyond a reasonable

doubt, and neither the attempted murder of Blango nor the murder of Scott

was justifiable.   Accordingly, Postell is not entitled to relief on any of his

claims.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




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