J-S57002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

WILLIAM ABBOTT

                         Appellant                    No. 3190 EDA 2016


           Appeal from the Judgment of Sentence April 22, 2016
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0009786-2015
                                        CP-51-CR-0009787-2015


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 19, 2017

      A jury convicted Appellant, William Abbott, of first degree murder and

charges related to his possession of a firearm in the shooting death of Clyde

Holloman. In this appeal, Abbott challenges the sufficiency and the weight of

the evidence supporting his murder conviction. After careful review, we

affirm.

      At his trial, Abbott did not contest that he had shot Holloman, or that

Holloman had died at his hands. Rather, Abbott argued that he did not act

with premeditation or a specific intent to kill. The jury did not agree.

      On appeal, Abbott’s arguments are premised upon the same basis as

his trial arguments. He first contends that the evidence at trial was
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insufficient to establish that he acted with premeditation or a specific intent

to kill. See Appellant’s Brief, at 9-11.

      Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the

crimes   charged      is   established     beyond   a   reasonable   doubt.   See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)

(citation omitted).

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder.

See id. “As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Kinney, 863

A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not

disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted).




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      To sustain a conviction for first-degree murder, the Commonwealth

must prove beyond a reasonable doubt that the defendant committed an

“intentional killing.” 18 Pa.C.S.A. § 2502(a). An intentional killing is defined

as “[k]illing by means of poison, or by lying in wait, or by any other kind of

willful, deliberate and premediated killing.” 18 Pa.C.S.A. § 2502(d). Further,

our Supreme Court has held that, in order to support a conviction of first-

degree murder, the Commonwealth must establish that: a human being was

unlawfully killed; the defendant was responsible for the killing; and the

defendant       acted    with   malice   and     a     specific    intent    to   kill.   See

Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013). A jury may

infer the specific intent to kill, as well as malice, based upon a defendant’s

use   of    a   deadly    weapon    on   “a    vital   part   of    the     victim’s   body.”

Commonwealth v. Houser, 18 A.3d 1128, 1133-1134 (Pa. 2011) (citation

omitted).

      Here, it is undisputed that Abbott used a deadly weapon on a vital part

of the victim’s body. See, e.g., N.T., Jury Trial, 4/19/16, at 49 (witness

testimony that Abbott shot Holloman); N.T., Jury Trial, 4/20/16, at 12

(expert testimony that Holloman was killed by a gunshot wound to the

chest). Abbott focuses on the testimony of Geraldine Holloman, the victim’s

sister.

      Geraldine testified that Abbott and Holloman were involved in an

argument. See N.T., Jury Trial, 4/19/16, at 37-40. The argument culminated


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in Abbott shooting Holloman in the chest. See id., at 42. After shooting

Holloman, Abbott threatened Holloman’s wife. See id. Holloman’s wife

ultimately walked away from Abbott, and Abbott proceeded to stand over

Holloman and say “I [ought] to blow your brains out.” Id. Instead, he

disposed of his gun and walked away. See id., at 42-43.

      Abbott argues that this post-shooting sequence demonstrates that he

did not have a specific intent to kill Holloman:

      [Abbott] did not premeditate a shooting but rather acted from
      fear, aggravation, or whatever other emotion can be attached to
      the confrontation that immediately preceded the shooting.

      [C]ounsel can think of no more compelling evidence [than]
      where a defendant claims that he should do something but then
      does not do it. Certainly the [d]efendant had the time to
      premeditate whether he should shoot the victim in the head after
      the victim was already on the ground. Having thought about it,
      and perhaps where clearer heads prevailed, the [d]efendant
      chose not to do it.

      Thus, where the words and actions of the [d]efendant himself
      clearly negate any concept of premeditation or specific intent to
      kill, the [d]efendant should not have been convicted of Murder in
      the First Degree.

Appellant’s Brief, at 11.

      While this line of reasoning may have made a valid argument to the

jury, it does not provide a valid legal challenge to the sufficiency of the

evidence. Just as the jury, based upon the evidence presented at trial, was

not required to find that Abbott intended to kill Holloman, it was not required

to find that he did not. As noted above, the law permits the jury to infer

specific intent to kill based upon a defendant’s act in using a deadly weapon

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upon a vital portion of the victim. Firing a gun into a victim’s chest surely

permits just such an inference. See Commonwealth v. Taylor, 876 A.2d

916, 925 (Pa. 2005). Abbott’s first argument on appeal merits no relief.

      Next, Abbott argues that the verdict was against the weight of the

evidence at trial. We do not review this claim de novo on appeal. See

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009). Rather, we

only review the trial court’s exercise of its discretionary judgment regarding

the weight of the evidence presented at trial. See id. “[W]e may only

reverse the lower court’s verdict if it is so contrary to the evidence as to

shock one’s sense of justice.” Commonwealth v. Champney, 832 A.2d

403, 408 (Pa. 2003) (citations omitted). A verdict is said to be contrary to

the evidence such that it shocks one’s sense of justice when “the figure of

Justice totters on her pedestal,” or when “the jury’s verdict, at the time of its

rendition, causes the trial judge to lose his breath, temporarily, and causes

him to almost fall from the bench, then it is truly shocking to the judicial

conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super.

2004) (citations omitted).

      Abbott’s argument on this issue closely tracks the line of reasoning

contained in his sufficiency challenge. He once again claims that the

testimony that he threatened to kill Holloman after shooting him was

overwhelming evidence of his lack of specific intent.




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      The trial court reviewed the entirety of the evidence presented at trial.

See Trial Court Opinion, 12/29/16. After this review, it concluded that the

evidence did not shock its conscience. See id., at 14. While we once again

recognize the logic of the line of reasoning highlighted by Abbott, we cannot

conclude that the trial court abused its discretion. It is undisputed that

Abbott chose to shoot Holloman in the chest. It is certainly reasonable for a

fact finder to infer that in doing so, he intended to kill Holloman. Abbott’s

second and final claim on appeal fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2017




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