J-S14026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

KHARYEE MCCULLOUGH,

                            Appellant                    No. 1707 EDA 2014


            Appeal from the Judgment of Sentence of April 11, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009669-2010


BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                 FILED MARCH 06, 2015

        Appellant,   Kharyee     McCullough,   appeals   from   the    judgment   of

sentence entered on April 11, 2014, following his bench trial convictions for

third-degree murder, conspiracy to commit homicide, possession of an

instrument of crime (PIC), and two firearm violations.1          Upon review, we

affirm.

        The trial court set forth the facts of this case as follows:

              On June 1, 2010, thirty-four (34) year-old Raymond
          Berry (decedent) was shot by [Appellant] and an unknown
          accomplice on the 3000 block of West Dakota Street in
          Philadelphia. The decedent died from multiple gunshot
          wounds.     Video surveillance obtained by police from
          cameras at a nearby business captured the crime. In a
          formal statement, [Appellant] identified himself as one of
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 903, 907, 6106, and 6108, respectively.
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       the shooters in the video.      He declined to provide the
       identity of his accomplice.

           In the video, the decedent is observed running.
       [Appellant] and his accomplice chase the decedent on
       bicycles in the same direction. The two men separate.
       Gunshot flashes are observed. Consistent with trace blood
       evidence at the scene, the unarmed decedent falls by a
       nearby vehicle, rises to his feet, and limps as he continues
       to run for his life. [Appellant] continues to shoot at the
       decedent before turning his bike around. Then, off camera,
       [Appellant’s] accomplice approaches from the other end of
       the street to deliver the fatal shots. [Appellant] admitted to
       hearing gunshots as he rode away from the crime scene.

           During collection of ballistic and trace blood evidence,
       six (6) .380 caliber semi-automatic fired cartridge casings []
       were recovered at the scene of the shooting, all stamped
       with the same manufacturer[’s name]. [Appellant] stated
       he was shooting a .380 [caliber firearm], but that he only
       had four shots in his gun. The medical examiner, Dr. Aaron
       Rosen, observed four gunshot wounds to the body, two to
       the head and neck area, one to the back and one to the
       right arm. The wound to the right forearm was the first
       wound that [the decedent] received. Based on the evidence
       presented at trial, the decedent would not have died from
       the shot to the right arm that was fired by [Appellant].
       Officer Brian Stark testified that the gunpowder was visible
       around each of the bullet holes.

           Gamal Emira, criminalist for the Philadelphia Police
       Department, testified that the discoloration around the hole
       in the back of decedent’s t-shirt and the presence of high
       particles of gunshot residue indicate the gun was fired in
       close proximity [to] or touching the clothing at the time it
       was fired. Detective Edward Nelson and Dr. Rosen testified
       that the gunshot wound to the [decedent’s] forehead was
       consistent with a contact wound, evident from the tearing of
       decedent’s skin.    [Appellant’s] accomplice delivered the
       coup de grâce[, a] contact gunshot wound to his forehead
       [and a] contact gunshot wound to his back.




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Trial Court Opinion, 9/23/2014, at 2-3 (record citations, quotations, and

original brackets omitted).

      The matter proceeded as follows:

            On June 5, 2013, [Appellant] was found guilty [of the
        aforementioned crimes, following a bench trial]. On April
        11, 2014, [Appellant] was sentenced to twenty (20) to forty
        (40) years for the third-degree murder conviction; five (5)
        to ten (10) years for the criminal conspiracy to commit
        homicide conviction, to run consecutively; no further
        penalty [for the two firearm convictions]; and five (5) years
        [of] probation for the PIC conviction, to run consecutively.
        [Appellant] received an aggregate sentence of twenty-five
        (25) to fifty (50) years [of] incarceration plus five (5) years
        [of] reporting probation. On May 28, 2014, [Appellant filed]
        a notice of appeal[]. On August 25, 2014, [Appellant’s]
        counsel filed a statement of [errors] complained of on
        [appeal], pursuant to an order of the court directing counsel
        to file a [Pa.R.A.P.(b)] statement. [The trial court issued an
        opinion pursuant to Pa.R.A.P. 1925(a) on September 23,
        2014.]

Id. (superfluous capitalization omitted).

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

        I.     Is [Appellant] entitled to an arrest of judgment on the
               charge of [t]hird[-d]egree murder and [c]riminal
               [c]onspiracy where the evidence is insufficient to
               sustain the verdict?

        II.    Is [Appellant] entitled to a new trial on the charges of
               [third-degree murder] and [c]riminal [c]onspiracy
               where the verdict is not supported by the greater
               weight of the evidence?

Appellant’s Brief at 3.

      In his first issue presented, Appellant argues there was insufficient

evidence to support his convictions for third-degree murder and conspiracy.


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He claims “[t]he Commonwealth has not sustained its burden because

[Appellant] quite obviously did not shoot and kill the victim and [Appellant]

was not demonstrated, beyond a reasonable doubt, to be a conspirator of

the shooter/killer.”   Id. at 7.    Appellant assails the trial court’s legal

interpretation arguing, “[t]he [trial] [c]ourt seems to think that because the

two men rode down the street in close proximity to one another, that they

had to be conspirators.” Id. at 8. In sum, he contends:

        Here, [Appellant] and the other young man rode in the
        same direction as the victim and apparently both fired
        shots. However, there is nothing in the record which would
        indicate that there was an agreement to do so. They simply
        did the same thing at the same time. They might even
        have had similar reasons. However, the case law does not
        hold that that makes a conspiracy.

        Even if there was a conspiracy, there was no conspiracy to
        kill. [Appellant] had plenty of opportunity to evince a desire
        to kill. He did not follow up with any of those opportunities.
        Even the [t]rial [j]udge noted that. However, it was the
        other person involved that did have an intent to kill and
        demonstrated that intent to kill by shooting the victim in the
        head at very close range. Thus, and where [Appellant] may
        have had an intent to harm or scare but where the other
        individual had the intent to kill, there simply was no
        agreement[] with regard to their intent and hence, without
        that agreement there was no criminal conspiracy. In that
        [Appellant] did not fire a kill shot, he could only be guilty of
        [m]urder in the [t]hird [d]egree if he was a criminal
        conspirator here and that simply was not the case.
        Accordingly, an arrest of judgment must be awarded to
        [Appellant] on the charge of [m]urder in the [t]hird
        [d]egree and [c]riminal [c]onspiracy.

Id. at 9-10 (footnote omitted).

      Our standard of review is well-settled:


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       The standard we apply in reviewing the sufficiency of the
       evidence is 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 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
       finder 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. Further, in viewing the
       evidence in the light most favorable to the Commonwealth
       as the verdict winner, the court must give the prosecution
       the benefit of all reasonable inferences to be drawn from
       the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014).

     Regarding third-degree murder, our Supreme Court has determined:

       [T]hird degree murder is not a homicide that the
       Commonwealth must prove was committed with malice and
       without a specific intent to kill. Instead, it is a homicide
       that the Commonwealth must prove was committed with
       malice, but one with respect to which the Commonwealth
       need not prove, nor even address, the presence or absence
       of a specific intent to kill. Indeed, to convict a defendant for
       third degree murder, the [factfinder] need not consider
       whether the defendant had a specific intent to kill, nor make
       any finding with respect thereto.

Commonwealth v. Meadows, 787 A.2d 312, 317 (Pa. 2001) (citation

omitted). “Malice may be found to exist in an unintentional homicide where


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a defendant consciously disregarded an unjustified and extremely high risk

that   his   actions   might   cause    death   or   serious   bodily     harm.”

Commonwealth v. Fisher, 80 A.3d 1186, 1197 (Pa. 2013) (citation

omitted).

       Regarding criminal conspiracy, our Supreme Court has concluded:

         To convict a defendant of conspiracy, the trier of fact must
         find that: (1) the defendant intended to commit or aid in
         the commission of the criminal act; (2) the defendant
         entered into an agreement with another (a co-conspirator)
         to engage in the crime; and (3) the defendant or one or
         more of the other co-conspirators committed an overt act in
         furtherance of the agreed upon crime. The essence of a
         criminal conspiracy, which is what distinguishes this crime
         from accomplice liability, is the agreement made between
         the co-conspirators.

         Mere association with the perpetrators, mere presence at
         the scene, or mere knowledge of the crime is insufficient to
         establish that a defendant was part of a conspiratorial
         agreement to commit the crime. There needs to be some
         additional proof that the defendant intended to commit the
         crime along with his co-conspirator. Direct evidence of the
         defendant's criminal intent or the conspiratorial agreement,
         however, is rarely available. Consequently, the defendant's
         intent as well as the agreement is almost always proven
         through circumstantial evidence, such as by the relations,
         conduct or circumstances of the parties or overt acts on the
         part of the co-conspirators. Once the trier of fact finds that
         there was an agreement and the defendant intentionally
         entered into the agreement, that defendant may be liable
         for the overt acts committed in furtherance of the
         conspiracy regardless of which co-conspirator committed
         the act.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (citations

and quotations omitted).



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     Upon review of the record, we conclude the Commonwealth set forth

sufficient evidence to support Appellant’s challenged convictions.       The

Commonwealth presented video surveillance from an auto repair store near

the scene of the crime. N.T., 6/4/2013, at 22. The trial court watched a

compilation video of three camera angles that captured portions of the

crime. Id. at 79-81. The video depicts the victim running down the street

with two men on bicycles following him in the same direction.   Id. at 81-82.

The victim falls and gets back up and continues running.         Id. at 84.

Gunshot flashes are seen on the video. Id. at 84. The men on bicycles flee

the scene in opposite directions.     Id.   Following the crime, Appellant

identified himself as one of the men on a bicycle as seen in the video. N.T.,

6/5/2013, at 12, 30. More specifically, Appellant “identified himself as the

male firing the gun that you see with the muzzle flash.” N.T., 6/4/2013, at

170-171. Appellant also gave a statement to police wherein he admitted to

shooting at the victim, at two different points during the incident, with a

.380 caliber handgun that was loaded with four bullets. Id. at 18-21. Police

recovered six .380 caliber semi-automatic fired cartridge casings from the

scene. N.T., 6/4/2013, at 6.   Upon autopsy, bullets were removed from the

victim’s arm, mouth, back, and jaw. N.T., 6/5/2013, at 104-113.          The

ballistics expert opined that two separate guns were used in the shooting.

Id. at 115.

     Here, in viewing the evidence in the light most favorable to the

Commonwealth as our standard requires, the evidence was sufficient to

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show, circumstantially, that Appellant and another man acted in concert with

each other as co-conspirators. Both men were on bicycles, riding near each

other, and chasing the victim who was on foot.            The ballistics evidence

showed that both men fired shots.       Appellant admitted he was one of the

shooters.     We reject Appellant’s suggestion that he and his conspirator

happened upon the same victim and independently decided to shoot at him

at the same time.     Accordingly, it matters not which person shot the fatal

blow, because Appellant is liable for the overt acts committed in furtherance

of the conspiracy regardless of which co-conspirator committed the act. See

Murphy.       To    support   a   conviction   for    third-degree    murder,   the

Commonwealth was required prove the murder was committed with malice,

but did not need not prove, nor even address, the presence or absence of a

specific intent to kill.   See Meadows.        Instead, the Commonwealth was

required to prove a conscious disregard of an unjustified and extremely high

risk that actions might cause death or serious bodily harm.           See Fisher.

Here, the Commonwealth produced evidence that the victim was shot

multiple times while fleeing and the shooting continued even after the victim

fell to the ground. Such actions clearly showed a conscious disregard of the

high risk that death or serious bodily injury would occur. Thus, we discern

no abuse of discretion in finding Appellant guilty of third-degree murder

based upon co-conspirator liability. Appellant’s first issue fails.

      Next, Appellant argues that his convictions were against the weight of

the evidence.      Appellant’s Brief at 11-12.       In advancing this argument,

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Appellant again asserts that the trial court erred by determining that there

was a conspiracy. Id.

     Our standard of review is as follows:

        A claim alleging the verdict was against the weight of the
        evidence is addressed to the discretion of the trial court.
        Accordingly, an appellate court reviews the exercise of the
        trial court's discretion; it does not answer for itself whether
        the verdict was against the weight of the evidence. It is
        well settled that the factfinder is free to believe all, part, or
        none of the evidence and to determine the credibility of the
        witnesses, and a new trial based on a weight of the
        evidence claim is only warranted where the factfinder’s
        verdict is so contrary to the evidence that it shocks one's
        sense of justice. In determining whether this standard has
        been met, appellate review is limited to whether the trial
        judge's discretion was properly exercised, and relief will
        only be granted where the facts and inferences of record
        disclose a palpable abuse of discretion.

Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation

omitted).

     Based upon the facts as set forth above, the verdict does not shock

one’s sense of justice. Appellant and his co-conspirator each fired multiple

shots at the victim which ultimately resulted in his death. Hence, we discern

no palpable abuse of discretion by the trial court in denying Appellant relief

on his weight of the evidence claim. Accordingly, Appellant’s second claim is

without merit.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2015




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