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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

EARL WIMBUSH

                         Appellant                   No. 1312 WDA 2013


            Appeal from the Judgment of Sentence July 20, 2011
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000787-2010


BEFORE: PANELLA, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 13, 2014

      Appellant, Earl Wimbush, appeals from the judgment of sentence

entered on July 20, 2011, in the Court of Common Pleas of Allegheny

County. After careful review, we affirm.

      On the evening of October 31, 2009, Wimbush and his friend, Andre

Peters were patronizing a club known as “Dreams.” N.T., Trial, 4/26/11, at

204-205. In the early morning hours of November 1, 2009, the men left the

club and went to the Cornwall housing development. See id., at 205.

According to witness accounts, the victim, Timothy Bottoms, was walking

down the street when a verbal altercation ensued with Wimbush, also known

as “E-Jerk.” Id., at 207. The testimony adduced at trial varies in its rendition

of the events which transpired thereafter. Nevertheless, of importance is the

fact that Wimbush admitted he shot and killed Bottoms. Following a non-jury
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trial on April 26, 2011, Wimbush was convicted of third-degree murder,

firearms not to be carried without a license, and recklessly endangering

another person. Wimbush was subsequently sentenced to a period of not

less than 12 nor more than 24 years’ imprisonment on the third-degree

murder conviction and a consecutive term of 3½ to 7 years’ imprisonment

for the firearms violation. No further penalty was imposed. This appeal

followed.

     On appeal, Wimbush raises a single issue: whether the evidence was

sufficient to support Wimbush’s conviction for third degree murder, or

whether it showed he acted in self-defense. Wimbush asserts that the

evidence shows that he acted in self-defense, making it impossible for him

to have committed third degree murder.

     “The well-settled test for sufficiency is whether, viewed in the light

most favorable to the Commonwealth, the evidence presented at trial and all

reasonable inferences to be drawn therefrom proves beyond a reasonable

doubt all of the elements of the crime(s) with which the accused is charged.”

Commonwealth v. Peay, 806 A.2d 22, 27 (Pa. Super. 2002) (citation

omitted).

     Third degree murder is defined in the Crimes Code as murder that is

not first or second degree murder. See 18 PA.CONS.STAT.ANN. § 2502(c).

“The crime of third degree murder under the Crimes Code incorporates the

common law definition of malice.” Commonwealth v. Thomas, 527 Pa.

511, 514, 594 A.2d 300, 301 (1991) (citation omitted).

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     [T]o convict a defendant of the offense of third-degree murder,
     the Commonwealth need only prove that the defendant killed
     another person with malice aforethought. This Court has long
     held that malice “comprehends not only a particular ill-will, but .
     . . [also a] wickedness of disposition, hardness of heart,
     recklessness of consequences, and a mind regardless of social
     duty, although a particular person may not be intended to be
     injured.”

     … the presence of a deliberate intent to kill while a prerequisite
     for murder is not required for murder [in the third degree]” in
     this Commonwealth. Instead, the defendant need only exhibit
     malice, which as explained above, includes “a class of wanton
     and reckless conduct [that] manifests …an extreme indifference
     to the value of human life,” but does not necessarily manifest an
     intent to kill. Indeed, our courts have consistently held that
     malice is present under circumstances where a defendant did not
     have an intent to kill, but nevertheless displayed a conscious
     disregard for “an unjustified and extremely high risk that his
     actions might cause death or serious bodily harm.’”

Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363-364 (Pa.

Super. 2005) (citations omitted). “The Commonwealth need not prove

motive in order to establish the existence of malice. The use of a deadly

weapon upon a vital part of the victim’s body is more than sufficient to

provide the element of malice.” Commonwealth v. D’Ambro, 500 Pa. 303,

308, 456 A.2d 140, 143 (1983) (citations omitted).

     There is no doubt that the Commonwealth proved in this case that

Wimbush killed the victim with malice aforethought, as Wimbush admitted

that he shot Bottoms at a relatively close range, multiple times in the chest

and heart, a vital part of the victim’s body, which resulted in almost

immediate death. Wimbush claims, however, that since he asserted at trial

that he was acting in self-defense, the required malice was not present.



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      While “[a] successful claim of self-defense negates the malice element

of third degree murder,” Commonwealth v. Marks, 704 A.2d 1095, 1099

(Pa. Super. 1997) (citation omitted), there must be some evidence to justify

a finding of self-defense. Commonwealth v. Torres, 564 Pa. 219, 224, 766

A.2d 342, 345 (2001).

      The use of force against a person is justified when the actor
      believes that such force is immediately necessary for the
      purpose of protecting himself against the use of unlawful force
      by the other person. See 18 Pa.C.S. § 505(a). When a defendant
      raises the issue of self-defense, the Commonwealth bears the
      burden to disprove such a defense beyond a reasonable doubt.
      See Commonwealth v. Samuel, 527 Pa. 298, 303, 590 A.2d
      1245, 1247 (1991); Commonwealth v. Upsher, 497 Pa. 621,
      624, 444 A.2d 90, 91 (1982). While there is no burden on a
      defendant to prove the claim, before the defense is properly at
      issue at trial, there must be some evidence, from whatever
      source, to justify a finding of self-defense. See Commonwealth
      v. Black, 474 Pa. 47, 53, 376 A.2d 627, 630 (1977).

Id., 564 Pa. at 223-224, 766 A.2d at 345. Where a person has used deadly

force against another, the evidence justifying a finding of self-defense has

been described as follows:

      [I]t must be shown that 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)

(citation omitted).




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       Here, Wimbush testified in his own defense at trial that his actions in

shooting Bottoms were in self-defense. Particularly, Wimbush testified that

Bottoms was “real angry like” when he yelled “E-Jerk’s a rat, what’chu going

with that nigga, man. I’m going to merk that nigga.” N.T., Trial, 4/26/11, at

207. Wimbush told the court that Bottoms “started charging, reaching, going

for his pants, like reaching for a gun” and “when he [got] like a couple feet

away from [him]” “he pull[ed] out the gun, and start[ed] firing till [Bottoms]

turn[ed] around and r[an] away.” Id., at 208. According to Wimbush,

Bottoms was “screaming” and he believed that Bottoms “was going to kill

[him]” because “[he] seen him shoot somebody.” Id., at 208-209. Wimbush

stated that he “couldn’t leave like” because “there was nowhere for [him] to

go” and that Bottoms would have shot him. Id., at 212. Wimbush claims he

fired shots within 3 to 4 feet of Bottoms because he “was trying to save [his]

life.” Id.

       Once the issue of self-defense was properly before the fact-finder, the

burden shifted to the Commonwealth to prove beyond a reasonable doubt

that Wimbush was not in fact acting in self-defense. See Commonwealth

v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008). 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; (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. See Commonwealth v. McClendon, 874 A.2d 1223, 1229 (Pa.

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Super. 2005). Although the Commonwealth is required to disprove a claim

of self-defense arising from any source beyond a reasonable doubt, the trier

of fact is not required to believe the testimony of a defendant who claims he

was acting in self-defense. See Bullock, 948 A.2d at 824. It remains the

province of the trier of fact to determine whether the defendant’s belief was

reasonable, whether he was free of provocation, and whether he had no

duty to retreat. See McClendon, 874 A.2d at 1229-1230.

      As such, the trial court, sitting as the trier of fact was free to make its

own credibility determination concerning the evidence presented. It plainly

rejected Wimbush’s own self-serving testimony—that was in stark contrast

to the evidence presented by the Commonwealth. While Wimbush may, in

his own mind, have been in reasonable fear that Bottoms may shoot him

based upon his threat that he was going to “merk” him coupled with

Bottoms past criminality, those apprehensions simply did not come to

fruition that day. Rather, the testimony established that Wimbush was the

sole attacker, firing multiple shots at close range, killing Bottoms and

striking his friend, Andre Peters, whom was attempting to flee from the path

of the bullets, in the leg. See N.T. Trial, 4/26/11, at 130.

      Specifically, the evidence established that Wimbush and Bottoms were

engaged in a heated verbal altercation. The two men were “having words”

when Wimbush walked up to Bottoms and “just started shooting.” Id., at

54-56. Witnesses did not actually see a weapon; however, they heard

gunshots and saw sparks near Wimbush’s hand. See id., at 57. Even after

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Bottoms attempted to flee, Wimbush continued to fire at him. There was

absolutely no evidence that Bottoms possessed a gun at the time of the

shooting. This clearly negates any notion that Wimbush acted in self-

defense.

      As such, we agree with the trial court’s assessment that the

Commonwealth adequately demonstrated that Wimbush did not reasonably

believe that he was in danger of death or serious bodily injury at the time of

the shooting.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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