J-S61044-14


    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTWAIN OLIVER,

                            Appellant            No. 1050 WDA 2014


              Appeal from the Judgment of Sentence April 1, 2014
                in the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000666-2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED OCTOBER 27, 2014

        Antwain Oliver (Appellant) appeals from his April 1, 2014 aggregate

judgment of sentence of 100 to 200 months of incarceration entered

following his convictions for, inter alia, aggravated assault, simple assault,

and recklessly endangering another person (REAP).1 We affirm.

        The facts underlying Appellant’s convictions were summarized by the

trial court as follows.

              The incident giving rise to this case occurred during the
        early morning hours of March 8, 2013. At approximately 1:50
        a.m., Uniontown City Police Officer Jonathan S. Grabiak was on
        routine patrol on Coolspring Street near Austin Street in
____________________________________________


*
     Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S. §§ 2702(a)(4), 2701(a)(1), and 2705, respectively. Appellant
also was convicted of several crimes related to controlled substances and
firearms, but he does not challenge those convictions on appeal.
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     Uniontown, Fayette County, Pennsylvania. Officer Grabiak heard
     gunshots coming from Austin Street and immediately turned his
     vehicle around and drove down the street. Once there, he
     observed a black male wearing a gray hooded sweatshirt and
     green and blue plaid pants standing on the sidewalk in front of
     Esther’s Tavern with a black semi-automatic firearm in his right
     hand. Officer Grabiak then observed the man place the firearm
     inside his pocket and go into the bar. He immediately followed
     him inside after radioing for backup. The .45 caliber Tulammo
     firearm was found lying on the floor of the bar next to the front
     door with one live round in the magazine. The serial number
     had been removed from it.

           [After Officer Grabiak was informed that the man had gone
     into in the restroom, three additional police officers arrived at
     the bar.] The officers then proceeded to the restrooms and
     cleared them.      The male [whom] Officer Grabiak observed
     outside of the bar was inside the restroom and identified as
     [Appellant].    He was immediately placed under arrest and
     searched incident to arrest. A baggie containing 5.3 grams of
     crack cocaine broken into small pieces and [$1,860.00] in cash
     were recovered from [Appellant’s] person.           The cash was
     separated into different folds in [Appellant’s] pocket.

           When the officers returned outside, they observed five (5)
     spent shell casings on the sidewalk that matched the firearm
     recovered inside the bar. [Appellant’s] name was run through
     the Pennsylvania State Police licensing database, and it was
     revealed that [Appellant] did not have a valid license to carry a
     firearm.

            As the officers were continuing their investigation around
     the area of the bar, Corina Lopez, her husband, Hulie White, and
     her sister, Jam-el Williams, went to the police station to file a
     report because the minivan they were in was twice hit by
     gunshots fired by [Appellant] outside the bar. One bullet went
     through the front windshield of the vehicle, while another hit the
     rear taillight as Ms. Lopez was expeditiously driving away from
     the scene. Ms. Lopez and Ms. Williams did not know [Appellant],
     but their description of the shooter matched what the officers
     had observed him wearing on the evening in question. They
     were also able to make a positive identification at the station
     after [Appellant] was brought in following his arrest.


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Trial Court Opinion, 6/27/2014, at 2-4.

     Appellant was charged with a plethora of crimes as a result of these

events, and a jury convicted him of all counts on March 7, 2014. On April 1,

2014, Appellant was sentenced as indicated above.         On April 9, 2014,

Appellant filed a post-sentence motion, which the trial court denied by order

of June 27, 2014.     Appellant timely filed a notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant presents the following questions on appeal, which we have

renumbered for ease of disposition.

     [1].   [Whether] the evidence was legally and factually
            insufficient to show that [Appellant] committed the crimes
            beyond a reasonable doubt [where there was no evidence
            that Appellant took any action with the requisite mens
            rea].

     [2].   [Whether] the evidence presented by the Commonwealth
            was against the weight of evidence relative to aggravated
            assault (3 counts) and simple assault as the
            Commonwealth submitted no evidence to establish
            knowledge or intent to injure or harm any of the occupants
            of the van.

     [3].   Did [the trial court] err in response to the jury’s question
            requesting a redefinition of aggravated assault and simple
            assault when the court provided a charge relative to
            [REAP] when the same was not requested by the jury?

     [4].   [Whether] Appellant was prejudiced by the absence of any
            African American individuals in the prospective jury panel
            over defense counsel’s objections prior to jury selection.

     [5].   Did the [trial court] err in the manner it question[ed] the
            expert witness?

Appellant’s Brief at 9-10 (subparts and unnecessary capitalization omitted).

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      We consider Appellant’s first question mindful of the following.

             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.

Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (quoting

Commonwealth v. Estepp, 17 A.3d 939, 943–44 (Pa. Super. 2011)).

      Appellant claims the evidence at trial was insufficient to sustain his

convictions because the Commonwealth failed to prove that he (1) caused or

attempted to cause serious bodily injury or acted with extreme indifference

to the value of human life; (2) attempted to cause injury with a deadly

weapon; or (3) placed anyone in danger of death or serious bodily injury by

shooting a handgun in the direction of the victims. Appellant’s Brief at 9.

      “[A] person is guilty of [simple] assault if he: … attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another….” 18

Pa.C.S. § 2701(a)(1).     “A person is guilty of aggravated assault if he: …

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attempts to cause or intentionally or knowingly causes bodily injury to

another with a deadly weapon….”      18 Pa.C.S. § 2702(a)(4).     A person is

guilty of REAP if he or she “recklessly engages in conduct which places or

may place another person in danger of death or serious bodily injury.” 18

Pa.C.S. § 2705.

     The thrust of Appellant’s argument that the Commonwealth failed to

prove the intent elements of these crimes is that there was no evidence that

Appellant knew or had any connection with any of the victims or that “the

weapon was fired by [A]ppellant directly at them.” Appellant’s Brief at 20.

     First, Appellant’s attack on the dearth of evidence of his motive to

shoot these particular victims is unavailing.   The statutes, quoted above,

which define simple assault, REAP, and aggravated assault do not include

motive as an element.     “[A]lthough motive evidence may be relevant to

guilt, the Commonwealth is not required to provide such evidence in order to

prove its case.”   Commonwealth v. Dougherty, 860 A.2d 31, 36 (Pa.

2004).

     Second, accepting as true the testimony offered at trial, it is clear that

the Commonwealth proved the necessary elements of the crimes which

Appellant challenges on appeal. Jam-el White testified that she was riding in

the back of a minivan driven by her sister. N.T., 3/5-7/2014, at 133. They

were going to Esther’s Bar to see a disc jockey (DJ) friend from New York

who was working a party there. Id. at 134. When they arrived at Esther’s,


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the DJ and his crew were loading equipment into their vehicle, which was

parked in front of the bar. Id. As the minivan approached the Jeep, Ms.

White began to open the door to get out. Before she could do so, a shot was

fired into the window of the minivan by Appellant, who was standing by the

bar entrance wearing a gray hooded sweatshirt and blue pajama pants. Id.

at 135-36.    As the van sped away and made a right turn, Appellant shot

again and hit the van’s tail light. Id. at 143.

      From this testimony alone, the jury reasonably could conclude that

Appellant intended to fire his gun into an occupied vehicle. One shot that

happened to hit a stationary object might require guesswork to determine

whether it was fired at the object intentionally or by accident. But that there

were two shots that hit the same moving target when it was at different

locations on the street rationally suggests, beyond mere speculation, that

they were fired with the intent to hit that target. Further, the fact that the

van was being driven showed that Appellant knew that he was shooting at

people when he shot at the vehicle.

      Intentionally firing a gun at another person satisfied the mens rea

elements of aggravated assault, REAP, and simple assault.          See, e.g.,

Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001)

(holding firing a gun at someone is conduct that is likely to result in serious

bodily injury and shows intent to injure) (citing Commonwealth v.

Wanamaker, 444 A.2d 1176, 1178 (Pa. Super. 1982); Commonwealth v.


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Smith, 956 A.2d 1029, 1036 (Pa. Super. 2008) (“Reckless endangerment is

a lesser included offense of aggravated assault and where the evidence is

sufficient to support a claim of aggravated assault it is also sufficient to

support a claim of recklessly endangering another person.”) (quoting

Commonwealth v. Thompson, 739 A.2d 1023, 1028 n. 13 (Pa. 1999);

Commonwealth v. Brown, 605 A.2d 429, 432 (Pa. Super. 1992) (holding

facts sufficient to support aggravated assault conviction are necessarily

sufficient to sustain conviction for lesser included offense of simple assault).

Accordingly, Appellant’s sufficiency-of-the-evidence challenge fails.

      Appellant next asserts that the verdicts were against the weight of the

evidence. We consider his argument under the following standard of review.

      A verdict is not contrary to the weight of the evidence because of
      a conflict in testimony or because the reviewing court on the
      same facts might have arrived at a different conclusion than the
      fact[-]finder. Rather, a new trial is warranted only when the
      jury’s verdict is so contrary to the evidence that it shocks one’s
      sense of justice and the award of a new trial is imperative so
      that right may be given another opportunity to prevail. Where,
      as here, the judge who presided at trial ruled on the weight
      claim below, an appellate court’s role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.

           One of the least assailable reasons for granting or denying
      a new trial is the lower court’s determination that the verdict
      was or was not against the weight of the evidence and that new
      process was or was not dictated by the interests of justice.
      Thus, only where the facts and inferences disclose a palpable
      abuse of discretion will the denial of a motion for a new trial
      based on the weight of the evidence be upset on appeal.


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Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (internal quotation

marks and citations omitted).

      Appellant’s weight argument merely repeats his sufficiency argument:

that the Commonwealth failed to prove that Appellant had a motive to shoot

the victims or otherwise had the intent to injure them. Appellant’s Brief at

13-16. The trial court rejected Appellant’s argument. Trial Court Opinion,

6/27/2014, at 6. For the reasons discussed above, we discern no abuse of

discretion by the trial court in refusing to hold that the verdicts were against

the weight of the evidence.

      With his third issue, Appellant claims that the trial court erred in its

answer to a jury question. Specifically, Appellant argues that the trial court

should not have not have given a supplemental instruction on REAP when

the jury asked only for the definitions of simple assault and aggravated

assault. Appellant’s Brief at 29.

            The scope of supplemental instructions given in response
      to a jury’s request rests within the sound discretion of the trial
      judge. There may be situations in which a trial judge may
      decline to answer questions put by the jury, but where a jury
      returns on its own motion indicating confusion, the court has the
      duty to give such additional instructions on the law as the court
      may think necessary to clarify the jury’s doubt or confusion.

Commonwealth v. Davalos, 779 A.2d 1190, 1195 (Pa. Super. 2001)

(internal citation omitted).




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       The full extent of Appellant’s argument related to this issue 2 is that the

trial court’s discussion of REAP “served to totally confuse the jury relative to

the mens rea elements of [a]ggravated and [s]imple assault….” Appellant’s

Brief at 32 (italics added). We disagree.

       The trial court, after acknowledging that the jury did not ask about

REAP, stated “I believe that it is helpful to go over that again because there

is a different mental state involved” for REAP. N.T., 3/5-7/2014, at 277. It

then went on to explain that recklessness involves consciously ignoring an

unjustified risk of causing serious injury, and compared and contrasted

recklessness with acting intentionally. Id. at 279. The trial court explained

that, because “recklessness is a lesser mental state than intentional

conduct[,]” if the jury found that Appellant acted intentionally, he is also

guilty of acting recklessly; however, if Appellant was merely reckless, he did

not have the specific intent to cause injury. Id. Rather than confuse, the

jury instructions clarified the different mental states for them.        We are

unconvinced that the trial court abused its discretion in offering this

clarification.
____________________________________________


2
  In the argument section of his brief, Appellant also complains about the
substance of the trial court’s instruction regarding inferences that the
Commonwealth asked the jury to make regarding intent. Appellant’s Brief at
32. However, this question is neither explicitly presented in Appellant’s
statement of questions, nor fairly suggested by the question he did state.
Thus, we will not consider it. See Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”).



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       Appellant’s fourth issue is based upon the absence of any African-

American individuals in the prospective jury panel. Appellant’s Brief at 33.3

We therefore review the applicable legal principles.

       “[T]he accused has no right to demand that specific minority groups or

even members of his own race be included in his jury.” Commonwealth v.

Sanchez, 36 A.3d 24, 58 (Pa. 2011).

              To establish a prima facie violation of the requirement that
       a jury array fairly represent the community, Johnson must show
       that: (1) the group allegedly excluded is a distinctive group in
       the community; (2) the representation of this group in venires
       from which juries are selected is not fair and reasonable in
       relation to the number of such people in the community; and (3)
       this underrepresentation is due to systematic exclusion of the
       group in the jury selection process. “Systematic” means caused
       by or inherent in the system by which juries were selected.

Commonwealth v. Johnson, 838 A.2d 663, 682 (Pa. 2003), cert. denied

543 U.S. 1008 (2004) (internal quotation omitted).

       Appellant acknowledges that he has no evidence African Americans are

systematically excluded from the jury selection process. Appellant’s Brief at

33.    However, he claims that he has been denied the opportunity to

challenge the selection process properly because (1) “there is no way to

insure that any African-American jurors will appear if selected[,]” and (2)

____________________________________________


3
  Although Appellant question references “the absence of any African
American individuals in the prospective jury panel[,]” he acknowledges that
there was one African-American gentleman who was stricken for cause
because he was “well acquainted” with one of the defense witnesses.
Appellant’s Brief at 33.



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“without actually seeing the citizens who appear for jury duty[,] there is no

way    of   knowing     whether     or   not   any   African-Americans   have   been

selected[.]” Id. at 34.

       By professing that he had no reason to believe that there would be a

dearth of African-American citizens on his panel of prospective jurors prior to

showing up for jury selection, Appellant admits that he has no information or

belief that the jury selection process systematically excludes African-

American citizens of Fayette County. Rather, it is clear that he was simply

unhappy with the jury panel he received.4

       Finally, Appellant claims that the trial court erred in its examination of

the Commonwealth’s forensics expert, Susan Atwood. Appellant asserts that

the trial court’s asking Ms. Atwood about the number of certain gunshot

residue particles that were found on Appellant’s hand was improper because

she had previously testified that the exact number of particles was



____________________________________________


4
  Fayette County has an African-American population of close to five percent.
See http://quickfacts.census.gov/qfd/states/42/42051.html (United States
Census Bureau’s report of 2013 statistics for Fayette County). Thus, a
panel, and even more so, an array with only one African-American
participant in it is troublesome, and we are concerned about it. Nonetheless,
counsel must prove systematic exclusion, and there are ways to do so. See,
e.g., Garcia-Dorantes v. Warren, 978 F.Supp.2d 815 (E.D.Mich. 2013)
(holding systematic discrimination proven where computer program which
selected jurors pulled names from only two zip codes in the county,
excluding a highly-populated geographic area with a 90% African-American
population).



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irrelevant.   Appellant’s Brief at 36.    Further, Appellant argues, defense

counsel had not been provided with the exact number prior to trial. Id.

      Regarding a trial judge’s examination of witnesses, this Court has

observed that

      [a] new trial is required only when the trial court’s questioning is
      prejudicial, that is when it is of such a nature or substance or
      delivered in such a manner that it may reasonably be said to
      have deprived the defendant of a fair and impartial trial. It is
      always the right and sometimes the duty of the trial judge to
      interrogate witnesses. However, questioning from the bench
      should not show bias or feeling or be unduly protracted.

Commonwealth v. Garcia, 661 A.2d 1388, 1393 (Pa. Super. 1995)

(quoting Commonwealth v. Ables, 590 A.2d 334, 341 (Pa. Super. 1991)).

      Here, Ms. Atwood testified, within a reasonable degree of medical

certainty, that particles characteristic of gunshot residue were found on the

front and back of both of Appellant’s hands.       N.T., 3/5-7/2014, at 175.

Defense counsel, on cross examination, asked “we don’t know if there was

one particle or more on his right palm, back of the hand, left palm or back of

the left hand?” Id. at 178. Ms. Atwood answered that she did note those

numbers, but that the number was irrelevant as long as there is one particle.

Id. At the conclusion of cross-examination, the trial court asked about the

number of particles found, Appellant objected, a brief sidebar conference

was held, and the trial court informed Ms. Atwood that she did not need to

answer the question. N.T., 3/5-7/2014, at 185-186.




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      Appellant offers no explanation of how the asking and withdrawing of

the trial court’s single question “painted the actual testimony of the forensic

expert in a light that pushed them toward a conviction.” Appellant’s Brief at

37.   Nor is this an obvious, or even reasonable, inference given the

testimony as a whole. His bald assertion of prejudice does not convince us

that a new trial is warranted.

      Because Appellant has failed to establish that any of his issues

warrants relief, we have no cause to disturb his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2014




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