J-A21025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

KEITH OMAR HORTON,

                            Appellant                     No. 1368 WDA 2016


             Appeal from the Judgment of Sentence July 22, 2016
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000818-2015


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                             FILED NOVEMBER 07, 2017

        Appellant, Keith Omar Horton, appeals from the judgment of sentence

entered on July 22, 2016, following his jury convictions for voluntary

manslaughter,      possessing      an   instrument   of   crime   (PIC),   recklessly

endangering another person (REAP), and aggravated assault.1 We affirm.

        The trial court summarized the facts of this case as follows:

        In the early morning hours of November 22, 2014, [Appellant]
        attended a birthday party for a friend at the Red Tomato Lounge
        on the corner of 18th and Peach Streets in the City of Erie. Also
        present at the party were Shadarea Flemings and Derrick
        Hemphill, who arrived at 1:00 a.m. Their friends, Seante and
        Damon arrived shortly after.



____________________________________________


1
    18 Pa.C.S.A. §§ 2503, 907, 2705, and 2702, respectively.
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     After passing through security, all walked to the back of the club
     where Flemings and Seante took pictures in a photo booth.

     At some point, Flemings and Seante left the Red Tomato to
     retrieve cigarettes from Flemings’s car, which was parked in the
     Firestone parking lot across the street from the Red Tomato.
     While in the parking lot, Flemings noticed Arbie Wilson, an old
     friend, sitting in another car a few spaces over.        Wilson
     approached Flemings and the two talked briefly. Wilson did not
     accompany Flemings and her friend back into the party, but
     instead, sat in Flemings’s car.     Flemings testified that she
     thought Wilson asked to stay in her car because people knew
     what kind of car he was in before, and her car had tinted
     windows, so no one would be able to see him.

     When Flemings reentered the Red Tomato, security did not
     search her. A man standing next to the door[, whom] Flemings
     identified as [Appellant], alerted security they did not search
     Flemings and her friend when they re-entered the party.
     Security asked Flemings to return to the door to submit to a
     search. Flemings, though compliant, got “mad as f[**]k” and
     called [Appellant] a “bitch ass n[**]ger.”       At that point,
     [Appellant] began arguing with Flemings. The people around
     them started pushing them apart, in an attempt to break up the
     verbal altercation. During the dispute, Jameele Williams, joined
     in and told Flemings he was going to “beat her ass and make her
     go get her n[**]ger.” Flemings explained this meant Williams
     was going to beat her up so badly she needed to get Hemphill
     for protection. Flemings and company pushed past the crowd
     and continued to the back of the party where Hemphill was
     waiting.    Neither [Appellant] nor Williams followed Flemings
     further into the party.

     When Flemings found Hemphill, she told him about her dispute
     with [Appellant]. She also told Hemphill that she had a bad
     feeling about what happened at the entrance to the club and
     that they should leave. Hemphill agreed, and the couple left the
     party through the front door which led to 18th Street. As the two
     left, Flemings continued to yell insults at the people in the VIP
     section of the party, but no one else approached them.

     When Flemings and Hemphill reached the middle of 18 th Street,
     she heard [Appellant] coming around the corner of the Red
     Tomato building shouting, “Here I come. Right here. Here I go.

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     Right here.” Flemings testified that Jameele Williams quickly
     followed [Appellant] and came up the middle of the street, near
     her and Hemphill. Hemphill turned around to face [Appellant]
     and asked him if he wanted to fight. [Appellant] said “yes.”
     Williams rushed over to where [Appellant], Flemings, and
     Hemphill were standing. Both Williams and Hemphill pulled up
     their pants and started to “square off” as if to prepare for a fight.
     At some point, Flemings realized Williams was digging in his
     pants pocket for a gun and screamed for Hemphill to run.
     Hemphill took off running down 18th Street in the direction of
     Peach Street with Jameele Williams chasing him and firing his
     weapon.

     When the gunfire from Williams subsided, Flemings testified she
     saw Wilson near her car and heard [Appellant] yell, “Now, bitch
     ass n[**]ger, your gun jammed” to Wilson. Flemings ran to her
     car and hid under the dashboard. When she looked up, she saw
     [Appellant] standing in front of her car pointing his gun at her.
     [Appellant] then ran towards State Street. Flemings heard more
     gun shots and eventually saw Wilson running across the street,
     limping. [Appellant] and Williams were also in view. Flemings
     stated she only saw [Appellant] and Williams with guns that
     night.

     Flemings eventually left her vehicle in the Firestone parking lot
     and found a ride home with strangers. She called 911 but hung
     up before she spoke with someone. About forty-five minutes
     later, members of the Erie Police Department arrived at
     Fleming’s home to ask her questions. At first, she did not tell
     the officers everything she knew and gave officers conflicting
     stories. She did not learn that Wilson was dead until 4:00 a.m.
     when police came back a second time and took her to the police
     department to speak with detectives.

     Before this, however, officers from the Erie City Police
     Department were dispatched to the area of 18th Street between
     Peach and State Streets for a call of shots fired. Upon arrival,
     Officer Justin Stidham found a crowd gathering around a young,
     black, male lying on his back, with an apparent gunshot wound
     to his chest. The man was alive, but unconscious, and barely
     breathing. [Officer] Stidham first attempted to get the crowd to
     disperse and then began rendering emergency aid to the victim
     until EMS services arrived to take the victim to the hospital.
     [Police recovered forensic evidence from the scene and video

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J-A21025-17


      footage of the incident from the Labor Temple building nearby.]
      The victim was later identified as Arbie Wilson.          After
      unsuccessful surgical intervention, Wilson died.

Trial Court Opinion, 10/19/2016, at 3-5 (original brackets and record

citations omitted).

      Procedurally, the case progressed as follows:

      [Appellant] was originally charged with the criminal homicide of
      Arbie Wilson, conspiracy to commit criminal homicide, one count
      of aggravated assault on Arbie Wilson, [PIC], criminal attempt at
      criminal homicide as to Derrick Hemphill, an additional count of
      aggravated assault as to Derrick Hemphill, [REAP] as to Derrick
      Hemphill, simple assault as to Shadarea Flemings, and terroristic
      threats as to Shadarea Flemings.

      Following a pre-trial motion hearing, the conspiracy charge was
      dismissed. No appeal was taken by the Commonwealth.

      Trial began on August 31, 2015. At the conclusion of the
      Commonwealth’s     case-in-chief,  [Appellant’s] motion for
      judgment of acquittal for the charge of criminal attempt to
      commit criminal homicide was granted.

      A jury then found [Appellant] not guilty of first and third degree
      murder, the aggravated assault of Derrick Hemphill, and the
      charges of simple assault and terroristic threats to Shadarea
      Flemings. The jury found [Appellant] guilty of [REAP] as to
      Derrick Hemphill, but was unable to reach a verdict on the other
      charges. A mistrial on those charges was declared.

      The Commonwealth retried [Appellant] on the deadlocked
      counts[, which included voluntary manslaughter/criminal
      homicide of Wilson, aggravated assault of Wilson, and PIC.] In
      the interim, [Appellant’s] co-defendant, Jameele Williams, who
      had also been partially convicted, filed a motion to sever [his]
      remaining charges from [Appellant’s remaining charges]. The
      motion was granted.

      [Appellant’s] second trial began May 23, 2016. Prior to giving
      final instructions to the jury, [Appellant] objected to the trial
      court’s instruction on accomplice liability. [Appellant’s] objection

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J-A21025-17


       was overruled. At the end of the second trial, [Appellant] was
       convicted by jury on all remaining charges.

       On July 22, 2016, [Appellant] was sentenced to an aggregate of
       one-hundred two to two-hundred four months[’] (eight years, six
       months to seventeen years[’]) incarceration.

Id. at 1-2 (footnote omitted). This timely appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

       1. Did the Commonwealth present insufficient evidence at the
          first trial to sustain the conviction of [REAP] under a theory of
          direct or accomplice liability?

       2. Did the Commonwealth present insufficient evidence at the
          second trial to sustain Appellant’s convictions for voluntary
          manslaughter, aggravated assault, and/or [PIC] under a
          theory of direct or accomplice liability?

       3. Did the trial court commit an abuse of discretion or error of
          law when it denied Appellant’s motion for a new trial on the
          basis that the convictions at the second trial were contrary to
          the weight of the evidence?

       4. Did the trial court err when it instructed the jury, over
          defense counsel’s objection, that an individual may be
          convicted of voluntary manslaughter under a theory of
          accomplice liability?

       5. Did the trial court err when it instructed the jury on
          accomplice liability, at the second trial, where the facts of
          record did not demonstrate that Appellant intended to
____________________________________________


2
  Following trial, the trial court granted Appellant an extension to file a
post-sentence motion. Thereafter, Appellant filed a timely post-sentence
motion. By order entered on August 15, 2016, the trial court denied relief.
On September 13, 2015, Appellant filed a notice of appeal. On the same
day, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
October 19, 2016.



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J-A21025-17


         facilitate the shooting death of Mr. Wilson and/or aided or
         encouraged anyone in that regard?

Appellant’s Brief at 8 (complete capitalization and suggested answers

omitted).

      Appellant’s first two issues challenge the sufficiency of the evidence to

support his various convictions. The standard we apply is as follows:

      [W]hether[,] 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 a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant's guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. 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. Fitzpatrick, 159 A.3d 562, 567 (Pa. Super.              2017)

(citation omitted).

      In his first issue presented, Appellant claims that the Commonwealth

failed to present sufficient evidence to support his conviction for REAP as the

principal actor, or under a theory of accomplice liability, with regard to the

victim, Derrick Hemphill. Id. at 37-41. Appellant claims that although he

initially challenged Hemphill to a fight, co-defendant, Jameele Williams,



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J-A21025-17



“came onto the scene and directly engaged with Hemphill” and “[w]hen

Williams started chasing and shooting at Hemphill, Appellant just stood

there.” Id. at 40. Moreover, Appellant claims there was no evidence that

Appellant “knew Williams had a loaded firearm.”          Id. at 41 (citation

omitted).

      “A person commits a misdemeanor of the second degree if he

recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury.”   18 Pa.C.S.A. § 2705. “The mens

rea required for this crime is a conscious disregard of a known risk of death

or great bodily harm to another person.” Commonwealth v. Martir, 712

A.2d 327, 328 (Pa. Super. 1998).

      “A person is guilty of an offense if it is committed by his own conduct

or by the conduct of another person for which he is legally accountable, or

both.” 18 Pa.C.S.A. § 306(a). “A person is an accomplice of another person

in the commission of an offense if […] with the intent of promoting or

facilitating the commission of the offense, he: (i) solicits such other person

to commit it; or (ii) aids or agrees or attempts to aid such other person in

planning or committing it[.]”   18 Pa.C.S.A. § 306(c)(1).    Moreover, “[a]n

accomplice may be convicted on proof of the commission of the offense and

of his complicity therein, though the person claimed to have committed the

offense has not been prosecuted or convicted or has been convicted of a

different offense or degree of offense or has an immunity to prosecution or

conviction or has been acquitted.” 18 Pa.C.S.A. § 306(g).

                                    -7-
J-A21025-17



      Here, the trial court determined:

      The evidence presented at trial showed that after an altercation
      with Flemings, [Appellant] and Mr. Williams raced after Flemings
      and Hemphill in the middle of 18th Street. Flemings testified that
      she heard Hemphill ask [Appellant] if he wanted to fight;
      [Appellant] responded in the affirmative. After this, Flemings
      believe[d] Williams attempt[ed] to retrieve a firearm from his
      pocket.

      Video footage recovered from the night of the incident also
      showed [Appellant] and Williams returning to [Appellant’s] car to
      retrieve what appeared to be firearms. Williams, Hemphill, and
      [Appellant] are later seen running while shots [were] fired.
      Evidence was also presented to indicate that as of the day of
      trial, [Appellant] still owned a .40 caliber firearm, which was the
      type of firearm that would have discharged many of the
      projectiles found at the scene.

      This evidence is sufficient to support [Appellant’s] conviction for
      [REAP]. [Appellant] was present at the time threats were made
      to Hemphill; [Appellant] and Williams returned to [Appellant’s]
      car to retrieve what appeared to be firearms; [Appellant] was
      initially with his co-defendant who chased Hemphill.          Once
      Williams did so, there exists evidence supporting the fact that
      [Appellant] fired shots in the area. Coupled with Flemings’
      testimony, the evidence, when seen in the light most favorable
      to the Commonwealth, proves the elements of [REAP], either
      directly or on an accomplice liability basis.

Trial Court Opinion, 10/19/2016, at 16 (record citation omitted).

      Based upon our standard of review and our examination of the

certified record, we discern no error in denying Appellant relief on his first

sufficiency claim.   Here, Appellant engaged in verbal confrontations with

Fleming and Hemphill.      Appellant and Williams retrieved firearms from

Appellant’s vehicle and began running towards Hemphill.        An eyewitness

testified that Appellant was wielding a firearm and video surveillance footage


                                     -8-
J-A21025-17



confirmed it. There was evidence that Appellant owned a firearm at the time

of the crimes. Multiple shots were fired at Hemphill. Appellant and Williams

were seen fleeing the scene together in Appellant’s car. Forensic evidence

confirmed Appellant’s firearm was the same caliber as bullet fragments

police recovered from the scene.        There was sufficient circumstantial

evidence to support a conviction for REAP with Appellant as the principal

actor. Moreover, even if Appellant was not the actual shooter, the evidence

showed that Appellant aided Williams in the commission of REAP, when the

two men retrieved firearms from Appellant’s vehicle, ran towards Hemphill in

concert with one another, recklessly placed Hemphill in danger of death or

serious bodily injury by firing shots in the victim’s direction, and then fled

the scene together in Appellant’s vehicle. Hence, Appellant’s first issue lacks

merit.

      Next, Appellant claims there was insufficient evidence to support his

convictions for voluntary manslaughter, aggravated assault, and PIC, with

regard to the victim, Arbie Wilson.    Appellant’s Brief at 42-45.   Appellant

argues that Fleming was not able to identify him and did not see him fire an

actual weapon and that Appellant’s physical location vis-a-vis Wilson at the

time he sustained the fatal gunshot wound precluded him from being the

shooter. Id. at 43-44. Appellant maintains that, “the testimony of record

does not indicate that Appellant had any negative interaction with Wilson

earlier in the evening” and the videotaped surveillance “present[ed] two

other possible shooting suspects” who “had the correct angle by which to

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J-A21025-17



inflict the fatal wound.” Id. Accordingly, Appellant posits that “[t]here is no

evidence that Appellant intended to promote the killing of Wilson or agreed

to aid or assist William in committing the murder.” Id. at 45.

      On this issue, the trial court decided there was sufficient evidence to

support Appellant’s convictions for voluntary manslaughter, aggravated

assault, and PIC:

      […] Shadarea Flemings, an eyewitness to the shooting,
      confirmed the identity of [Appellant] on the video recovered
      from the Labor Temple where he was seen running to his car
      with Jameele Williams [and] retrieving what appeared to be a
      firearm. Later, [Appellant] is seen on the video following Wilson
      after Wilson appears on screen, limping across the street. Next,
      [Appellant] and Williams are seen running back to [Appellant’s]
      car and driving away.        Flemings also testified she heard
      [Appellant] yelling to Wilson about a gun jamming or misfiring,
      placing [Appellant] squarely in the middle of a conflict involving
      firearms with the victim.

      Additional testimony revealed numerous bullet jackets,
      fragments, and other physical evidence [recovered from] the
      Firestone parking lot, the area in which Flemings stated she saw
      [Appellant] and Wilson together.

      Finally, the medical evidence showed Wilson was shot from the
      back to the front on the left side on his body. [Appellant], as
      shown on his booking sheet, [is] left[-]handed, making it
      possible he fired the fatal shot, even if he appeared to the right
      of Wilson in the video [surveillance].         Direct evidence of
      [Appellant’s] involvement notwithstanding, evidence was
      presented to also show his liability as an accomplice. In all video
      footage, [Appellant] was seen with Jameele Williams, who also
      retrieved what appeared to be a firearm from the same car,
      running through the streets of downtown Erie.

Trial Court Opinion, 10/19/2016, at 19.




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J-A21025-17



      Upon review, we discern no error or abuse of discretion in the trial

court’s conclusion that there was sufficient evidence to support Appellant’s

convictions for voluntary manslaughter, aggravated assault, and PIC.

Initially, we reject Appellant’s suggestion that there was insufficient evidence

to identify him as the perpetrator.      We have previously determined that

“evidence of identification need not be positive and certain to sustain a

conviction.” Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super.

2008) (citation omitted).    Moreover, “[i]t is settled law that a witness may

testify to a person's identity from his voice alone” and “the weight to be

accorded voice identification testimony is a question for the trier of fact.”

Id. (original citation, quotations, and brackets omitted).           Here, an

eyewitness saw Appellant wield a firearm, heard Appellant say to the victim,

“Now, bitch ass n[**]ger, your gun jammed,” and then heard gunshots

which resulted in the Wilson’s death. Furthermore, there was evidence that

Wilson was shot by a left-handed assailant and there was evidence that

Appellant is, in fact, left-handed. Based on this evidence, we find there was

sufficient identification evidence.

      We turn now to examine the elements of the individual offenses to

determine whether there was sufficient evidentiary support to uphold

Appellant’s convictions.    First, “[a] person who kills an individual without

lawful justification commits voluntary manslaughter if at the time of the

killing he is acting under a sudden and intense passion resulting from serious

provocation by [] the individual killed.” 18 Pa.C.S.A. § 2503(a)(1). Next,

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J-A21025-17



“[a] person is guilty of aggravated assault if he [] attempts to cause serious

bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the

value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1).            “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).

      Here, there was evidence that Appellant and Wilson engaged in a

verbal confrontation, Appellant was seen wielding a firearm, and was heard

yelling at Wilson.      We conclude there was sufficient evidence to support a

conviction for voluntary manslaughter. Appellant killed Wilson without lawful

justification   while    acting   under    sudden   passion   caused   by   Wilson’s

provocative conduct.       Moreover, we have upheld convictions for voluntary

manslaughter under a theory of accomplice liability. See Commonwealth

v. Kimbrough, 872 A.2d 1244, 1255 (Pa. Super. 2005). As set forth above,

the evidence showed that Appellant and his co-defendant aided each other

by retrieving firearms from Appellant’s vehicle, running towards the victim

while gunshots rang out, and then eventually fled together in Appellant’s

vehicle.   Thus, there was also sufficient evidence that Appellant was an

accomplice to his co-defendant.           Likewise, we find there was sufficient

evidence to support Appellant’s conviction for aggravated assault. Appellant

recklessly fired a weapon at the victim.            When shots were heard, an

eyewitness saw Appellant holding a firearm that matched bullet fragments

and casings recovered from the scene. This was also sufficient evidence to

                                          - 12 -
J-A21025-17



support Appellant’s conviction for PIC. For all of the foregoing reasons, we

conclude there was sufficient evidence to support Appellant’s convictions for

voluntary manslaughter, aggravated assault and PIC.

      Appellant, in the alternative, maintains that his convictions for

voluntary manslaughter, aggravated assault and PIC were against the

weight of the evidence. Appellant’s Brief at 45-49.

      Our standard of review when presented with a weight of the evidence

claim is distinct from the standard of review applied by the trial court:

      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. One of the least assailable reasons for granting or
      denying a new trial is the lower court's conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014) (citation

omitted).

      Here, the trial court determined that the convictions for voluntary

manslaughter, aggravated assault and PIC did not shock the conscious of

the court and Appellant was not entitled to relief on his weight of the

evidence.     Based upon our deferential standard of review and an

examination of the certified record, we discern no abuse of discretion in

rejecting Appellant’s weight claim.



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      Appellant’s final two arguments pertain to jury instructions on

accomplice liability and we will examine them together. In his fourth issue

presented, “Appellant suggests that the jury should have been instructed

that Appellant could not be convicted of voluntary manslaughter on the basis

of accomplice liability.”   Appellant’s Brief at 50.   However, as previously

mentioned, we have upheld convictions for voluntary manslaughter under a

theory of accomplice liability. See Kimbrough, 872 A.2d at 1255. Thus,

we summarily reject this claim.     Next, Appellant contends the evidence of

record did not support an instruction on accomplice liability.     Appellant’s

Brief at 50-51.

      Our Supreme Court has set forth the standard used when adjudicating

whether a trial court had grounds for instructing the jury on a certain

matter:

      It is axiomatic that a jury need not be instructed regarding
      matters that have no relevance to the evidence introduced at
      trial.

                            *           *          *

      There is no duty on a trial judge to charge a jury upon a law
      which has no applicability to the presented facts. There must be
      some relationship between the law upon which an instruction is
      required and the evidence presented at trial.

Commonwealth v. Meadows, 553 A.2d 1006, 1013 (Pa. Super. 1989)

(citations omitted).

      We employ the following standard in assessing jury instructions:




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J-A21025-17


      When evaluating the propriety of jury instructions, this Court will
      look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Sauers, 159 A.3d 1, 12 (Pa. Super. 2017) (citation and

brackets omitted).

      In this matter, as set forth at length supra, the evidence showed that

Appellant and his co-defendant aided each other by retrieving firearms from

Appellant’s vehicle, running towards the victims while gunshots rang out,

and then eventually fled together in Appellant’s vehicle. Thus, there was a

strong relationship between the law of accomplice liability and the evidence

presented at trial to warrant an instruction.    Hence, Appellant’s final two

claims lack merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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