J-S44001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                             Appellee

                        v.

JAMES EDMONDS

                             Appellant            No. 1747 WDA 2013


           Appeal from the Judgment of Sentence February 20, 2013
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0007411-2012


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED JULY 28, 2015

        Appellant James Edmonds appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following his bench

trial conviction for one count of attempted murder,1 three counts of

aggravated assault,2 three counts of recklessly endangering another person

(“REAP”),3 and one count of conspiracy to commit aggravated assault.4 We

affirm.


____________________________________________


1
    18 Pa.C.S. § 901.
2
    18 Pa.C.S. § 2702.
3
    18 Pa.C.S. § 2705.
4
    18 Pa.C.S. § 903.
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        The trial court set forth the relevant facts and procedural history of

this matter as follows:

               At approximately 1:00 p.m. on April 14, 2012[,] William
        Bosley pulled into the carport of the Carnegie Towers, Carnegie
        Borough, Allegheny County, Pennsylvania. He was driving a
        green car. His cousin, Tyler Dorsey, and a young child were
        sitting in the back seat. Security videos taken by the Carnegie
        Towers showed a second vehicle driven by [Appellant]. The
        vehicle was in front of Bosley’s such that Bosley could not drive
        past. [Appellant] exited the driver’s side, and the co-defendant,
        Byron Hall, exited the passenger side of the second vehicle.
        [Appellant] was next seen approaching the shooter[5] and
        greeting him with a “fist bump”. The co-defendant, Byron Hall,
        was seen in the video at the left, behind the trunk of Bosley’s
        car. The security video also showed the co-defendant grab the
        victims’ car door so the victims could not exit, as Mr. Watson
        began to shoot. Next, [Appellant] is seen calmly walking as the
        two (2) men and child in the car are shot.

               [Appellant] was arrested and originally charged with
        [c]riminal [a]ttempt [h]omicide, two (2) counts of [a]ggravated
        [a]ssault, three (3) counts of [REAP] and [c]onsipracy and an
        additional count of [a]ggravated [a]ssault was added before
        trial. After a non-jury trial, [Appellant] was found guilty on all
        counts.

Trial   Court   Pa.R.A.P.    1925(a)     Opinion,   October   28,   2014   (“1925(a)

Opinion”), pp. 2-3 (internal record citations and footnotes omitted).         The

trial court sentenced Appellant to a term of 7 to 14 years’ incarceration for

the attempted murder conviction and concurrent terms of 3 to 6 years’

incarceration for each of the aggravated assault convictions.              The court

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5
  The shooter exited the Carnegie Towers’ front door into the carport at the
same time Appellant and the other co-defendant exited the vehicle.



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imposed no further penalty on the remaining convictions. Appellant filed a

timely post-sentence motion and an amended post-sentence motion, which

the court denied on October 7, 2013.       Appellant timely filed his notice of

appeal on October 29, 2013.     Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

      I. Did the [t]rial [c]ourt err as a matter of law in determining
      that there was sufficient evidence to convict [Appellant] of the
      charged offenses?

      II. Did the [t]rial [c]ourt err as a matter of law in denying the
      [m]otion for a [n]ew [t]rial due to the [v]erdict being against the
      [w]eight of the [e]vidence?

Appellant’s Brief, p. 1.

      Appellant first claims that the Commonwealth adduced insufficient

evidence to support his convictions.         See Appellant’s Brief, pp. 7-.

Specifically, Appellant claims the evidence presented did not prove beyond a

reasonable doubt that he participated in the commission of the crimes. See

id. Appellant argues the surveillance video merely shows him engaging in a

common greeting with the shooter prior to the shooting. Id. Accordingly,

he argues he was merely present at the scene. Id. This claim lacks merit.

      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

      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


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      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
      [trier] 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. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

      Under the Pennsylvania Crimes Code, “[a] person commits an attempt

when, with intent to commit a specific crime, he does any act which

constitutes a substantial step towards the commission of the crime.”         18

Pa.C.S. § 901(a). Therefore, “[i]f a person takes a substantial step toward

the commission of a killing, with the specific intent in mind to commit such

an act, he may be convicted of attempted murder.”         In re R.D., 44 A.3d

657, 678 (Pa.Super.2012).      Further, our Supreme Court has repeatedly

determined that “[t]he use of a deadly weapon on a vital part of the body is

sufficient to establish the specific intent to kill” required for a first degree

murder conviction.      Commonwealth v. Rega, 933 A.2d 997, 1009

(Pa.2007); see also Commonwealth v. Cousar, 928 A.2d 1025, 1034

(Pa.2007) (“a specific intent to kill may be inferred from the use of a deadly

weapon on a vital part of a victim’s body.”).


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        Regarding aggravated assault, the Crimes Code provides, in relevant

part:

        (a) Offense defined.–A person is guilty of aggravated assault if
        he:

          (1) Attempts to cause serious bodily injury to another, or
          causes such injury intentionally, knowingly or recklessly
          under circumstances manifesting extreme indifference to
          the value of human life[.]

18 Pa.C.S. § 2702.     The statute further defines “serious bodily injury” as

“[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.”            18 Pa.C.S. § 2301.         “[T]he

Commonwealth may establish the mens rea element of aggravated assault

with evidence that the assailant acted either intentionally, knowingly, or

recklessly.”      Commonwealth        v.        Bruce,    916    A.2d   657,     661

(Pa.Super.2007).      “Intent can be proven by direct or circumstantial

evidence; it may be inferred from acts or conduct or from the attendant

circumstances.”       Commonwealth         v.    Lewis,    911   A.2d   558,     564

(Pa.Super.2006). However, “where [a] victim suffers serious bodily injury,

the Commonwealth need not prove specific intent [but] need only prove [the

assailant] acted recklessly under circumstances manifesting an extreme

indifference to the value of human life.” Commonwealth v. Nichols, 692

A.2d 181, 185 (Pa.Super.1997). The manner and means of an attack will be

considered in determining whether the requisite degree of recklessness has



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been proven.   Bruce, 916 A.2d at 664.      Where an assailant performs an

offensive act that almost assures that injury will ensue, the requisite degree

of recklessness has occurred for the purposes of aggravated assault. Bruce,

916 A.2d at 664 (“at very least, the conduct must be such that that one

could reasonably anticipate death or serious bodily injury would likely and

logically result”); Nichols, 692 A.2d at 185.

      The Crimes Code defines REAP thusly:

      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705.     “[REAP] is a crime directed against reckless conduct

entailing a serious risk to life or limb out of proportion to any utility the

conduct might have.”    Commonwealth v. Vogelsong, 90 A.3d 717, 719

(Pa.Super.2014),   appeal   denied,   102   A.3d   985   (Pa.2014)   (internal

quotations and citation omitted).      “As a result, to support a [REAP]

conviction, the evidence must establish that the defendant acted recklessly

in a manner that endangered another person.” Id.; 18 Pa.C.S. § 2705. “A

person acts in a reckless manner when he consciously disregards a

substantial and unjustifiable risk.” Id.; 18 Pa.C.S. 302(b)(3).

      “The material elements of conspiracy are: “(1) an intent to commit or

aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an

overt act in furtherance of the conspiracy.” Commonwealth v. Gross, 101

A.3d 28, 34 (Pa.2014); 18 Pa.C.S. § 903. “An ‘overt act’ means an act done



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in furtherance of the object of the conspiracy.” Id. The overt act necessary

to establish criminal conspiracy need not be committed by the defendant; it

need only be committed by a co-conspirator. Commonwealth v. McCall,

911 A.2d 992, 996 (Pa.Super.2006).

     Further, this Court has explained the agreement/intent elements of

conspiracy as follows:

     The essence of a criminal conspiracy is a common
     understanding, no matter how it came into being, that a
     particular criminal objective be accomplished.     Therefore, a
     conviction for conspiracy requires proof of the existence of a
     shared criminal intent. An explicit or formal agreement to
     commit crimes can seldom, if ever, be proved and it need not
     be, for proof of a criminal partnership is almost invariably
     extracted from the circumstances that attend its activities.
     Thus, a conspiracy may be inferred where it is demonstrated
     that the relation, conduct, or circumstances of the parties, and
     the overt acts of the co-conspirators sufficiently prove the
     formation of a criminal confederation. The conduct of the parties
     and the circumstances surrounding their conduct may create a
     web of evidence linking the accused to the alleged conspiracy
     beyond a reasonable doubt.

McCall, 911 A.2d at 996-97.      The factors of the relation between the

parties, knowledge of and participation in the crime, and the circumstances

and conduct of the parties surrounding the criminal episode, “may coalesce

to establish a conspiratorial agreement beyond a reasonable doubt where

one factor alone might fail.” Commonwealth v. Bricker, 882 A.2d 1008,

1017 (Pa.Super.2005).     Finally, “[e]ach co-conspirator is liable for the

actions of the others if those actions were in furtherance of the common

criminal design.”    Commonwealth v. King, 990 A.2d 1172, 1178


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(Pa.Super.2010) (citing Commonwealth v. Baskerville, 681 A.2d 195,

201 (Pa.Super.1996)).

      Further, the Crimes Code discusses accomplice liability in pertinent

part as follows:

      (a) General rule.–A person is guilty of an offense if it is
      committed by his own conduct or by the conduct of another
      person for which he is legally accountable, or both.

      (b) Conduct of another.–A person is legally accountable for
      the conduct of another person when:

                                      ...

         (3) he is an accomplice of such other person in the
         commission of the offense.

      (c) Accomplice defined.–A person is an accomplice of another
      person in the commission of an offense if:

         (1) with the intent of promoting or facilitating the
         commission of the offense, he:

            (i) solicits such other person to commit it; or

            (ii) aids or agrees or attempts to aid such other person
            in planning or committing it; or

         (2) his conduct is expressly declared by law to establish his
         complicity.

18 Pa.C.S. § 306. To find a defendant guilty as an accomplice, a two-prong

test must be satisfied.   Commonwealth v. Kimbrough, 872 A.2d 1244,

1251 (Pa.Super.2005) (citing Commonwealth v. Murphy, 844 A.2d 1228,

1234 (Pa.2004)).

      First, there must be evidence to show that [the defendant]
      intended to facilitate or promote the underlying offense.
      Second, there must be evidence that [the defendant] actively


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      participated in the crime or crimes by soliciting, aiding, or
      agreeing to aid the principal [].

Kimbrough,     872   A.2d   at   1251   (internal   citation   omitted).   “Both

requirements may be established wholly by circumstantial evidence.          Only

the least degree of concert or collusion in the commission of the offense is

sufficient to sustain a finding of responsibility as an accomplice.           No

agreement is required, only aid.” Commonwealth v. Knox, 50 A.3d 749,

755 (Pa.Super.2012).

      To establish complicity, mere presence at the scene of a crime
      and knowledge of the commission of criminal acts is not
      sufficient. Nor is flight from the scene of a crime, without more,
      enough. However, those factors combined, along with other
      direct or circumstantial evidence may provide a sufficient basis
      for a conviction, provided the conviction is predicated upon more
      than mere suspicion or conjecture.

Id. at 756 (citing Commonwealth v. Rosetti, 469 A.2d 1121, 1123

(Pa.Super.1983)).

      Here, the surveillance video of the incident showed Appellant and his

co-defendant arrive at the Carnegie Towers’ carport together in a vehicle

driven by Appellant before the victims arrived. Appellant parked his vehicle

such that it essentially blocked forward exit from the carport and waited.

Appellant and the co-defendant made multiple beckoning hand motions to an

off-screen individual prior to the victims’ arrival. The victims’ vehicle arrived

and parked directly behind them.        Immediately after the victims’ vehicle

stopped, Appellant and the co-defendant exited their vehicle just as the third

co-defendant – the shooter – appeared from the front door of the building.


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All three men made eye contact, and Appellant greeted the shooter with a

fist bump as the co-defendant passenger made his way to the driver’s side

of the victims’ vehicle. As the victims’ vehicle began to back away, the co-

defendant held the door shut while the shooter approached and opened fire

into the vehicle.        Appellant initially ducked slightly at the shots and

continued toward the entrance of Carnegie Towers, but calmly returned

outside while the shooting was still in progress.             After the shooting,

Appellant and the co-defendant calmly watched as the shooter ran past

them.     Neither Appellant nor the co-defendant showed any alarm at the

shooter’s proximity.

        When viewed in the light most favorable to the Commonwealth this

evidence established beyond a reasonable doubt the elements of attempted

murder, aggravated assault, and REAP as an accomplice, as well as

conspiracy     to   commit     aggravated      assault.   Accordingly,   Appellant’s

sufficiency of the evidence claim fails.

        Appellant next claims that the verdict was against the weight of the

evidence. See Appellant’s Brief, p. 11-14. Appellant bases this claim on the

lack of direct evidence proffered by the Commonwealth of Appellant’s

intent.6 See id. He is again incorrect.
____________________________________________


6
  Appellant’s weight of the evidence claim merely argues that the verdict was
against the weight of the evidence because the Commonwealth’s evidence
failed to prove the crimes beyond a reasonable doubt. This is actually a
restatement of his sufficiency claim, which fails for the reasons discussed
(Footnote Continued Next Page)


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      The denial of a new trial based on a lower court’s determination that

the verdict was not against the weight of the evidence is one of the least

assailable   reasons       for   granting        or   denying   a   new   trial.   See

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013).                          This Court

reviews weight of the evidence claims pursuant to the following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. A trial judge must
      do more than reassess the credibility of the witnesses and allege
      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

      Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to


                       _______________________
(Footnote Continued)

supra. However, as it is easily disposed of for the reasons stated infra, we
will address Appellant’s claim as though he had argued a proper weight of
the evidence claim.



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the evidence as to shock one’s sense of justice, 7 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).            Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.        Widmer, 744 A.2d at 753.      When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

       Simply stated, the trial court’s verdict in this matter illustrates that the

court reviewed the surveillance video – to which Appellant offered no

contradictory evidence – and found that it credibly evidenced Appellant’s

participation in the crimes, as discussed supra. The trial court confirmed its

assessment/verdict by denying Appellant’s post-sentence motion for a new

trial based on the weight of the evidence. Nothing about the verdict shocks
____________________________________________


7
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       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)
(internal citations and quotations omitted).




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the conscience. Thus, Appellant’s weight of the evidence claim warrants no

relief.

          For the preceding reasons, we affirm Appellant’s judgment of

sentence.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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