J-S35019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JAHINA DAMON

                            Appellant                  No. 2526 EDA 2014


             Appeal from the Judgment of Sentence July 24, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012402-2008


BEFORE: MUNDY, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                 FILED JUNE 24, 2015

       Appellant, Jahina Damon, appeals from the judgment of sentence

entered on July 24, 2014, after the trial court found her guilty but mentally

ill of first-degree murder, arson, possessing an instrument of crime and two

counts each of attempted murder and aggravated assault.1

       We briefly summarize the facts and procedural history of this case as

follows.    On December 20, 2007, at approximately 5:30 a.m., while on

routine patrol, police encountered Donald Harmon and Kelly Winters on the

6000 block of Cobbs Creek Parkway in Philadelphia, Pennsylvania. Winters

was badly burned. Police realized that the residence located at 6018 Cobbs

Creek Parkway was engulfed in flames.          Winters told police that a woman

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 3301, 907, 901, and 2702, respectively.



*Retired Senior Judge assigned to the Superior Court.
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came to the house to kill everybody inside and burn the house down.

Harmon was living at the residence at the time with his girlfriend, Lolita Lee.

Appellant is Lee’s daughter. Harmon told police that he, Winters, and Lee

were present at the residence when Appellant rang the doorbell at 5:00 a.m.

Appellant claimed that she needed some documents and asked everyone to

gather in the dining room.      Appellant apologized to her mother for past

behavior, read a poem, and then pulled out a gun and shot Lee. Appellant

then turned and fired at Harmon and Winters. Winters fell from her chair

and Harmon played dead. While mumbling what Harmon later described as

“demon words” and “witchcraft,” Appellant threw something on the floor and

the room filled with smoke and fire.        Harmon and Winters were able to

escape.

      After the fire was extinguished, police found a semi-automatic

handgun, four bullet casings, and Lee’s charred remains in the kitchen.

Winters suffered from third-degree burns over 40% of her body. She was in

a medically induced coma for over a month following the episode and had to

undergo multiple operations over the course of years. Winters died in March

2011, as a result of corrective surgery for injuries sustained during the fire.

      Police took Appellant into custody in Hagerstown, Maryland on the

same day as the incident.      Maryland authorities subsequently procured a

search warrant for the residence where Appellant was staying.           Therein,

police recovered Appellant’s purse that contained receipts for a handgun,




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ammunition, and a mandatory Maryland firearm safety class for new gun

purchasers.

        A three-day bench trial commenced on February 11, 2014. Appellant

presented an insanity defense.           At the conclusion of trial, the trial court

found Appellant guilty but mentally ill of the aforementioned offenses. The

trial   court   ordered    further   mental    health   evaluations   for   placement

recommendations. On July 24, 2014, the trial court sentenced Appellant to

life imprisonment without parole for first-degree murder.             Consecutive to

Appellant’s life sentence, the trial court also ordered Appellant to serve

terms of 10 – 20 years of imprisonment for both arson and attempted

murder of Harmon and 20 – 40 years of imprisonment for attempted murder

of Winters. The trial court also sentenced Appellant to a concurrent term of

two and one-half to five years’ imprisonment for possessing an instrument of

crime. No further sentence was imposed for Appellant’s aggravated assault

convictions.       The trial court instructed the Bureau of Corrections to

designate a treatment facility that would provide psychiatric or psychological

treatment appropriate to Appellant’s needs.         This timely appeal resulted.2

        Appellant raises the following issues for our review:


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2
  Appellant filed a notice of appeal on July 24, 2014. On September 30,
2014, 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 on October 18, 2014. The trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on January 15, 2015.



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         I.     Is [Appellant] entitled to an arrest of judgment on the
                charge of murder in the first degree and all related
                charges where the evidence is insufficient to sustain
                that verdict and where the evidence clearly reflected
                that [Appellant] was insane and should have been
                awarded a verdict of not guilty by reason of insanity?

         II.    Is [Appellant] entitled to a new trial on the charge of
                murder in the first degree and all related charges
                where the verdict of guilty was against the greater
                weight of the evidence and where the greater weight
                of the evidence favored a verdict of not guilty by
                reason of insanity?

Appellant’s Brief at 3 (some capitalization and suggested answers omitted).

       In her first issue presented, Appellant argues that the trial court erred

by failing to award her an arrest of judgment. Id. at 7. She admits that she

committed the crimes,3 but argues “there was insufficient evidence to find

[her] guilty but mentally ill as [Appellant], on this record was clearly not

guilty by reason of insanity.” Id. Appellant argues she met her burden of

proving an insanity defense because, at the time of the incident, she was

under such mental defect that she could not understand the nature of her

acts or that her actions were wrong. Id. at 8. Appellant also points to the

trial testimony of her psychological expert, Dr. Kirk Heilbrun, claiming that

Dr. Heilbrun “forthrightly stated and plainly said that [Appellant] could not


____________________________________________


3
   Appellant concedes that the Commonwealth presented sufficient evidence
of the statutory elements of each of the crimes as charged. Instead, she
argues that the trial court erred by finding that she failed to prove her
insanity defense. Thus, we need not address whether there was sufficient
evidence to prove the individual elements of each offense.



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comprehend what she was doing was wrong because she felt that what she

was doing was right given that her victims were demons.” Id. at 11.

      Our standard of review of this claim is as follows:

        When ruling on a motion in arrest of judgment, a trial court
        is limited to ascertaining the absence or presence of that
        quantum of evidence necessary to establish the elements of
        the crime. At this stage in the proceedings, the trial court is
        limited to rectifying trial errors, and cannot make a
        redetermination of credibility and weight of the evidence.

        For purposes of appellate review,

            In passing upon such a motion in arrest of judgment,
            the sufficiency of the evidence must be evaluated
            upon the entire trial record. All of the evidence must
            be read in the light most favorable to the
            Commonwealth and it is entitled to all reasonable
            inferences arising therefrom. The effect of such a
            motion is to admit all the facts which the
            Commonwealth's evidence tends to prove.

        In order for a trial court to properly grant a criminal
        defendant's motion in arrest of judgment on the ground of
        insufficient evidence, it must be determined that accepting
        all of the evidence and all reasonable inferences therefrom,
        upon which, if believed the verdict could properly have been
        based, it would be nonetheless insufficient in law to find
        beyond a reasonable doubt that the defendant is guilty of
        the crime charged.

Commonwealth v. Marquez, 980 A.2d 145, 147-148 (Pa. Super. 2009)

(citations, quotations, and ellipsis omitted; emphasis in original).

      In presenting an insanity defense, the Legislature has determined:

        (a) General rule.--The mental soundness of an actor
        engaged in conduct charged to constitute an offense shall
        only be a defense to the charged offense when the actor



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        proves by a preponderance of evidence that the actor was
        legally insane at the time of the commission of the offense.

        (b) Definition.--For purposes of this section, the phrase
        “legally insane” means that, at the time of the
        commission of the offense, the actor was laboring under
        such a defect of reason, from disease of the mind, as not to
        know the nature and quality of the act he was doing or, if
        the actor did know the quality of the act, that he did not
        know that what he was doing was wrong.

18 Pa.C.S.A. § 315.

      Whereas, the Legislature has described guilty but mentally ill, in

pertinent part, as such:

        (a) General rule.--A person who timely offers a defense of
        insanity in accordance with the Rules of Criminal Procedure
        may be found “guilty but mentally ill” at trial if the trier of
        facts finds, beyond a reasonable doubt, that the person is
        guilty of an offense, was mentally ill at the time of the
        commission of the offense and was not legally insane at the
        time of the commission of the offense.

                           *         *           *

        (c) Definitions.--For the purposes of this section []:

        (1)   “Mentally ill.” One who as a result of mental disease
              or defect, lacks substantial capacity either to
              appreciate the wrongfulness of his conduct or to
              conform his conduct to the requirements of the law.

        (2)   “Legal insanity.” At the time of the commission of the
              act, the defendant was laboring under such a defect of
              reason, from disease of the mind, as not to know the
              nature and quality of the act he was doing or, if he did
              know it, that he did not know he was doing what was
              wrong.

18 Pa.C.S.A. § 314.




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     In discussing the interplay between the two defenses, our Court has

stated:

          [T]he legislature has determined that persons classified as
          guilty but mentally ill either lack the capacity to appreciate
          the wrongfulness of their conduct or are unable to conform
          their conduct to the requirements of the law. However, the
          General Assembly determined that this classification of
          individuals is capable of possessing the requisite mens rea
          for the attachment of criminal responsibility. In other words,
          those individuals who have been found guilty but mentally
          ill are both “sick” and “bad” (i.e., criminally responsible). On
          the other hand, defendants who have been adjudged insane
          are defined as laboring under a defect of reason so grave as
          not to have known the nature and quality of the acts they
          were doing, or if they did know the nature and quality of the
          acts, they were unable to comprehend that what they were
          doing was wrong. In this classification, the legislature found
          that such individuals were incapable of forming the intent
          necessary to impose criminal liability.

          […B]efore determining the issue of insanity, the
          Commonwealth must prove each element of the offense
          charged. Thus, […] the Commonwealth must establish
          criminal intent before the issue of insanity is reached;
          however, the defense of legal insanity can, on those
          occasions when one is asserting cognitive incapacity, render
          a   person    incapable   of   forming     criminal   intent.
          Concomitantly, [the insanity rule established by Regina v.
          M'Naghten, 8 Eng. Rep. 718 (1843) [(the M'Naghten
          Rule)] can override the element of mens rea where the
          defendant proves the moral incapacity aspect of his defense
          by a preponderance of the evidence.

          Phrased another way, legal insanity does not necessarily
          eliminate mens rea, although it may; nor, of course, does
          the Commonwealth's proof of the mens rea element of the
          offense eliminate the possibility of the [factfinder]
          concluding that an individual is legally insane and therefore
          not criminally responsible. This, however, does not end our
          analysis of the law relative to the legal insanity defense,
          since an assertion of that defense automatically gives rise to

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        the alternative verdict of guilty but mentally ill. Indeed,
        unless a person pleads guilty but mentally ill, the guilty but
        mentally ill verdict only arises in the context of a legal
        insanity defense.

        Accordingly, even if the Commonwealth proves each of the
        elements of the crimes charged beyond a reasonable doubt
        and the defendant fails to show by a preponderance of the
        evidence that he is legally insane, the [factfinder] must still
        consider whether the defendant was mentally ill at the time
        of the commission of the act. Pursuant to 18 Pa.C.S.A.
        § 314(a):

           A person who timely offers a defense of insanity in
           accordance with the Rules of Criminal Procedure may
           be found “guilty but mentally ill” at trial if the trier of
           facts finds, beyond a reasonable doubt, that the
           person is guilty of an offense, was mentally ill at the
           time of the commission of the offense and was not
           legally insane at the time of the commission of the
           offense.

        The term mentally ill is defined under Pennsylvania law as
        “[o]ne who as a result of mental disease or defect, lacks
        substantial capacity either to appreciate the wrongfulness of
        his conduct or to conform his conduct to the requirements
        of the law.” 18 Pa.C.S.A. § 314(c)(1). Our courts have
        differentiated mental illness from legal insanity by
        distinguishing between the appreciation of wrongfulness
        factor under the mentally ill definition and the lack of
        knowledge of wrongfulness aspects of the legal insanity
        definition.

Commonwealth v. Andre, 17 A.3d 951, 960-962 (Pa. Super. 2011) (case

citations, some quotations, and some parentheticals omitted).

     The Andre Court also noted:

        [These legal concepts] may be conceptually difficult to
        understand since one aspect of Pennsylvania's insanity test
        is that the defendant did not know what he or she was
        doing. If a person does not know what he or she is doing, it
        is hard to conceive how that individual possessed the

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        required mens rea to commit a crime. In fact, the statutory
        definitions of criminal intent regarding acting intentionally,
        knowingly, recklessly, and negligently foreclose a person
        from acting in any of those manners when he or she is not
        conscious at all of what he or she is doing. As the majority
        of the United States Supreme Court reasoned in Clark v.
        Arizona, 548 U.S. 735 (2006), in distinguishing between
        the cognitive incapacity and moral incapacity prongs of the
        M'Naghten test, “In practical terms, if a defendant did not
        know what he was doing when he acted, he could not have
        known that he was performing the wrongful act charged as
        a crime.” Clark, supra at 753–754; see also id., at 768 n.
        38 (“Not only does evidence accepted as showing insanity
        trump mens rea, but evidence of behavior close to the time
        of the act charged may indicate both the actual state of
        mind at that time and also an enduring incapacity to form
        the criminal state of mind necessary to the offense
        charged.”).

        Nevertheless, it is possible that an individual has the
        necessary mens rea when he or she knows what he or she
        is doing, but does not know that it is wrong. As an example,
        a defendant may intend to strike a person and knock that
        person unconscious, but incorrectly believe, due to a mental
        deficiency, that he is engaged in a boxing match. In such a
        situation, the defendant intends to commit the act;
        however, he does not believe that the action is wrong.

Id. at 960.

     Here, the trial court determined:

        [T]here was insufficient evidence that [Appellant] was
        legally insane at the time she committed the offense[s].
        The [trial] court went to great lengths to determine whether
        or not [Appellant] was legally insane at the time of the
        offense[s] and rightly concluded that [Appellant] was not
        legally insane. [Appellant’s] insanity defense fails.

                           *         *           *

        Here, [Appellant] did not satisfy her burden of proof. There
        is insufficient evidence to show that [Appellant] did not
        know that her actions were wrong at the time of the

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        offense[s]. Rather, the evidence shows that [Appellant]
        knew that her actions were wrong. She took the legally
        mandated firearms training safety course prior to
        purchasing the gun. After killing her mother, she tried to
        kill the potential witnesses, Mr. Harmon and Ms. Winters.
        After firing the shots and starting the fire, she fled the
        scene. In addition, Dr. Heilbrun testified that [Appellant]
        knew in some ways that her actions were wrong.

        As the Commonwealth correctly explained in its closing
        argument at trial, even if [Appellant] was correct in her
        belief that [] demons existed and need to be exorcised,
        [Appellant] made the decision that the solution to the
        problem was to shoot and incinerate her mother and her
        mother’s friends. Furthermore, [Appellant] believed that
        she had special powers and that she was God’s wife. She
        could have used her powers, as well as her lofty status as
        the wife of the creator of all life, to solve the problem by
        another method that did not involve shooting and
        incinerating her own mother.

        The language Dr. Heilbrun used to describe [Appellant’s]
        mental condition shows that the court was correct in finding
        [Appellant] guilty but mentally ill rather than legally insane.
        Dr. Heilbrun found that at the time of the offense[s]
        [Appellant] was experiencing symptoms of a major mental
        disorder that significantly impaired her capacity to
        understand the wrongfulness of her behavior.              Such
        language is almost precisely the same as the statutory
        language that defines “guilty but mentally ill.”

Trial Court Opinion, 1/15/2015, at 12-13 (record citations and footnotes

omitted).

     As previously discussed, Appellant concedes the commission of her

actions. Moreover, there is no dispute that Appellant was suffering from

mental health issues at the time of the crimes. Based upon our review of

the record, we agree with the trial court that the facts as presented

established that Appellant was guilty but mentally ill of the aforementioned


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crimes, rather than not guilty due to insanity.       Dr. Heilbrun testified that

Appellant began experiencing mental health issues in 2003 when she was 25

years old. N.T., 2/18/2014. Appellant believed that she was “God’s wife”

and that “everyone was aliens [and] worshipping the devil.” Id. at 19. Dr.

Heilbrun concluded:

        [Appellant] is an individual with severe mental illness. She
        was actively symptomatic around the time of the offenses.
        She genuinely, although this was also delusional[], believed
        that her daughter was being sexually molested as a result
        of being in her mother’s care; that her mother and her
        mother’s boyfriend were aliens who were worshipping the
        Devil; and that the way to release the demons from the
        original individuals before they were possessed was through
        fire.

        So there really was no question for me that she
        understood that what she was doing was killing them.
        As she explained it, she thought they were not them in the
        sense that it was her mother and the original people who
        were in those bodies. It was demons who were possessing
        them. But she did intend to use the gun to shoot them and
        then to use the fire to exorcise the demons.

        So my conclusion was that she was experiencing
        symptoms that significantly impaired her capacity to
        understand the wrongfulness of this behavior,
        although she knew that she was intending to harm
        those individuals, and that what was interfering with her
        capacity to understand the wrongfulness were, in large part,
        symptoms of a major mental disorder that she suffered at
        the time and had first begun to suffer well in advance of the
        offense.

                           *        *             *

        […S]he believed that what she was doing was harming
        individuals who were not really individuals; they were
        possessed by demons and that they were harming her


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        daughter. So she knew that she was harming them
        and knew in some ways that this was wrong, but in
        other ways believed it was important for her to do
        both for her mother’s sake and her daughter’s sake.

Id. at 23-24 (emphasis added). Dr. Heilbrun opined that Appellant intended

to kill the victims, as shown by her taking advanced steps to secure a

firearm, taking a firearm safety class, and bringing gasoline to the residence.

Id. at 34.    Appellant believed that she must “[k]ill and burn them” to

“release the demons.” Id. at 37.

      While Dr. Heilbrun stated that his “clinical opinion is that [Appellant]

was not sane at the time of the offense[s,]” he was reluctant to “express a

conclusion about insanity” because such a “conclusion is a legal one[.]” Id.

at 25-26. We agree that the ultimate question of legal insanity was for the

trial court, serving as factfinder, to determine. Based on the foregoing, Dr.

Heilbrun stated that Appellant intended to carry out her crimes – to kill and

burn her victims – but lacked the substantial capacity to appreciate that

such acts were wrong because she believed that she was exorcising demons.

Thus, there was expert testimony that Appellant had a significantly impaired

ability to understand wrong.    Similar to the hypothetical boxing scenario

presented in Andre, Appellant engaged in intentional actions under a

deluded belief caused by her mental health disorders.      Moreover, we note

that Appellant fled the scene and police apprehended her in Maryland. Flight

can indicate a consciousness of guilt. See Commonwealth v. Housman,

986 A.2d 822, 831 (Pa. 2009) (noting flight and concealment can constitute

circumstantial evidence of consciousness of guilt).    Appellant’s flight from

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the crime scene further supports the trial court’s conclusion that Appellant

was not legally insane. Appellant’s flight demonstrates that either she knew

the nature and quality of her acts or had knowledge, albeit it a diminished

understanding, that what she was doing was wrong. As Dr. Heilbrun opined,

Appellant knew in some ways that what she was doing was wrong. Viewing

this evidence in the light most favorable to the Commonwealth, we discern

no error of law in the trial court’s determination that Appellant was not

insane but, instead, guilty but mentally ill of the crimes charged.

Accordingly, Appellant’s first issue lacks merit.

      In her second issue presented, Appellant claims that her convictions

were against the weight of the evidence as presented. Appellant’s Brief at

13-14. We have previously determined:

        A weight of the evidence claim must be preserved either in
        a post-sentence motion, by a written motion before
        sentencing, or orally prior to sentencing. Failure to properly
        preserve the claim will result in waiver, even if the trial
        court addresses the issue in its opinion.

Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (citations,

quotations, and brackets omitted); see also Pa.R.Crim.P. 607. Upon review

of the record, Appellant did not file a post-sentence motion or a written

motion before sentencing. Moreover, upon review of the transcripts of the

various proceedings, Appellant did not orally preserve her weight of the

evidence claim prior to, or at, sentencing. Hence, we are constrained to find

this issue waived.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2015




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