J. S30019/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
DYSHAN AURSBY,                          :         No. 3601 EDA 2013
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, July 26, 2013,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0001044-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JUNE 17, 2015

      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following appellant’s convictions of

attempted murder, aggravated assault, robbery, and conspiracy, all felonies

of the first degree.     Appellant was sentenced to 7½ to 15 years’

incarceration for attempted murder, plus 5 to 10 years’ incarceration for

robbery, with no further penalty assessed for the additional charges.   We

affirm.

      We adopt the factual history as summarized by the trial court.

                 These charges arose out of a dispute over drug
           sales   between     Appellant   and    the   victim,
           Danny Williams (“Williams”).    On May 22, 2011,
           between 1 A.M. and 2 A.M., Appellant, co-defendant,
           Clarence Burbage (“Burbage”), and Rakeem Divers
           (“Divers”), attacked Jerry Holloman (“Holloman”),
           also known as “Mike”.      Appellant, Burbage, and
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          Divers asked Holloman where Williams was and
          Holloman told them that Williams was with his
          girlfriend, Delisha Foy (“Foy”), at her house.
          Appellant, Burbage, and Divers told Holloman to call
          Williams on the phone. When Holloman hesitated,
          Burbage took Holloman’s phone and called Williams.
          The three men held Holloman at gunpoint as they
          walked to Foy’s house on South 66th Street to see
          Williams.      When they arrived at Foy’s home,
          Holloman was told to stand at the door while
          Appellant, Burbage, and Divers hid. When Williams
          opened the door, Holloman yelled “run”. Williams
          attempted to slam the door shut but Burbage headed
          inside before the door closed. Holloman ran down
          the alleyway across the street from Foy’s home while
          Appellant and Divers followed Burbage into the
          home. As Burbage, Appellant, and Divers went into
          the home, Williams ran up the stairs to the second
          floor. Williams then jumped out of a second floor
          window, hit the ground, and began limping away.
          Appellant and Divers followed Williams, Appellant
          drew a gun, and fired it at Williams, striking Williams
          in his left buttock. Burbage told Foy, who was in the
          house at the time of the incident, that Williams
          “robbed his young bull”, then Burbage took money
          off of a table downstairs before leaving.

                After Appellant, Burbage, and Divers left,
          Holloman found Williams laying [sic] on the ground
          and stayed with him until the police arrived.
          Williams was taken to the Hospital of the University
          of Pennsylvania (HUP). That same day, Williams was
          interviewed inside HUP and told Detective Maurizio
          that Appellant, whom he referred to as “Sha”, and
          Burbage, whom Williams referred to as “C Murder”
          shot him. Based on the identifications made by
          Williams and Holloman, arrest warrants were filed for
          Appellant and Burbage. At approximately 10:20 P.M.
          on May 22, 2011, Philadelphia Police Officers
          McLaughlin and McKiernon arrested Appellant.




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Trial court opinion, 8/5/14 at 2-3.1

      Appellant and Burbage were tried together.          On May 31, 2013,

following a jury trial, appellant was found guilty of the above-mentioned

crimes. Appellant was sentenced on July 26, 2013 to an aggregate term of

incarceration of 12½ to 25 years. A timely post-sentence motion was filed

and was denied by operation of law on December 4, 2013. Appellant filed a

timely notice of appeal on December 12, 2013. Appellant was ordered to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b) and he complied. The trial court filed a Rule 1925(a) opinion.

      Appellant raises four issues for our consideration; we will review them

in the order presented:

            I.     Whether the Court erred when it would not
                   instruct the jury on Aggravated Assault as a
                   felony of the second degree[?]

            II.    Whether the Court erred when it would not
                   grant a mistrial after Commonwealth witness
                   Jerry Holloman blurted out that the defendants
                   were crazy and do a lot of stuff in the
                   neighborhood[?]

            III.   Whether the adjudication of guilt is against the
                   weight of the evidence and shocking to one’s
                   sense of justice where the witnesses against
                   the Appellant were dishonest, corrupt and
                   polluted sources of information and where they
                   were contradictory and possessed their own
                   motives to harm the victim[?]


1
  After being released from the hospital, Danny Williams was shot to death
on May 27, 2011, approximately 5 days after the May 22, 2011 shooting
incident.


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            IV.    Whether the adjudication of guilt is based upon
                   insufficient evidence where the inference that
                   the Appellant had been accurately identified
                   was not a reasonable inference and whether
                   the adjudication of guilt for Attempted Murder
                   and Aggravate[d] Assault are based upon
                   insufficient   evidence    that   the    shooter
                   possessed the malice necessary for Attempted
                   Murder or that he attempted to cause or did
                   cause a serious bodily injury[?]

Appellant’s brief at 6.

      In his first issue on appeal, appellant contends the trial court erred

when it failed to instruct the jury on aggravated assault as a felony of the

second degree. Appellant’s argument lacks merit.

      In relevant part, the Crimes Code defines aggravated assault in the

following manner:

            (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;

                   ....

                   (4)    attempts to cause or intentionally
                          or knowingly causes bodily injury
                          to another with a deadly weapon;

                   ....

            (b)    Grading.--Aggravated         assault       under
                   subsection (a)(1) and (2) is a felony of the first
                   degree. Aggravated assault under subsection


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                  (a)(3), (4), (5), (6) and (7) is a felony of the
                  second degree.

18 Pa.C.S.A. § 2702(a)(1), (4).

      Appellant was only charged with aggravated assault of the first

degree, Section 2702(a)(1).        Because appellant was not charged with

aggravated assault as a felony of the second degree, he was not entitled to

an instruction on an uncharged crime, which was not a lesser included

offense of a charged crime.       See Commonwealth v. Ferrari, 593 A.2d

846, 848-849 (Pa.Super. 1991) (this court held that because the “with a

deadly weapon” provision of § 2702(a)(4) is not found in § 2702(a)(1), the

former is not a lesser included offense of the latter), appeal denied, 618

A.2d 398 (Pa. 1992); see also Commonwealth v. Harrison, 663 A.2d

238, 241 (Pa.Super. 1995) (since appellant was not on trial for criminal

trespass, he was not entitled to an instruction on finding him guilty of

criminal trespass), appeal denied, 674 A.2d 1067 (Pa. 1996).

      In his second issue, appellant contends the trial court erred when it

admitted Holloman’s testimony that he was scared of appellant and Burbage,

his co-defendant, who he said were “crazy” and who “do a lot of things out

in the street.”   (Notes of testimony, 5/22/13 at 129-130.)          Appellant

contends the trial court erred when it denied his motion for a mistrial.

      “In reviewing a trial court’s denial of a motion for a mistrial, our

standard is abuse of discretion.” Commonwealth v. Bryant, 67 A.3d 716,

728 (Pa. 2013). “An abuse of discretion is not merely an error of judgment,


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but if in reaching a conclusion the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will, . . . discretion is abused.”   Commonwealth v.

Stollar, 84 A.3d 635, 650 (Pa. 2014) (citation omitted). “A mistrial is an

extreme remedy that is required only where the challenged event deprived

the accused of a fair and impartial trial.” Commonwealth v. Travaglia, 28

A.3d 868, 879 (Pa. 2011).

        Instantly, appellant asserts Holloman’s testimony that he and Burbage

were “crazy” and “do a lot of things out in the street” implicates unproven

allegations that appellant was committing other unrelated crimes or bad

acts.   (Appellant’s brief at 22.) Appellant contends this testimony created

unfair prejudice to him because it suggested he was a person of bad

character who habitually committed crimes on the street. (Id.)

             Generally, only evidence        that   is   relevant   is
             admissible. Pa.R.E. 402.

             Evidence is relevant if it tends to prove or disprove a
             material fact. Relevant evidence is admissible if its
             probative value outweighs its prejudicial impact. The
             trial court’s rulings regarding the relevancy of
             evidence will not be overturned absent an abuse of
             discretion.

Conroy v. Rosenwald, 940 A.2d 409, 417 (Pa.Super. 2007); see

Pa.R.E. 402, 403.

        The trial court explained why Holloman’s statement was admissible:

             Holloman’s statement was relevant to show why he
             had made incomplete or inconsistent statements to


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             the police, a material fact at issue. Additionally,
             Holloman’s statement did not indicate an identifiable
             criminal act that would have a tendency to suggest a
             jury decision on an improper basis. Discrete crimes,
             such as selling drugs, were mentioned in testimony
             prior to Holloman’s statement and were not objected
             to.

Trial court opinion, 8/5/14 at 5 (references to notes of testimony omitted).

        Our review of the record indicates that Holloman was taken to police

headquarters where he made two statements. (Notes of testimony, 5/21/13

at 31.)     Holloman testified that he did not tell the truth in the first

statement. (Id. at 32.) He told the police the name of the person who did

the shooting, but did not tell the police that he witnessed the shooting.

(Id.)    Holloman stated he was “scared” as the reason for not telling the

police he witnessed the shooting. (Id. at 33.) The police continued to ask

him questions, and three hours later, he admitted that he was present at the

scene and told the police exactly what he saw. (Id. at 36.)

        On cross-examination, the defense was attacking Holloman’s credibility

by pointing out the two statements.      During redirect, the Commonwealth

asked Holloman what the reason was for making the two statements, and

Holloman replied, “Because it was -- these guys are crazy. I don’t want it to

come back to my family.”      (Id. at 129.)   Holloman was asked again the

reason for the two statements. He replied, “Because I was scared. These

guys is crazy. They do a lot of things out in the street.” (Id. at 130.)




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      Appellant’s claim that he was prejudiced by a vague reference to

“things” is unavailing. See Commonwealth v. Luster, 71 A.3d 1029, 1050

(Pa.Super. 2013) (testimony that Luster and the victim argued a lot did not

impermissibly imply that he was a violent person because nothing in his

testimony referenced physical abuse or a prior bad act), appeal denied, 83

A.3d 414 (Pa. 2013).    Additionally, the notes of testimony contain several

references to the fact that both appellant and Burbage were involved in

previous drug dealings on a daily, regular basis in the neighborhood. This

case was about stolen drugs and money. It was undisputed that appellant,

Burbage, and the victim were participants in dealing drugs. It is common

knowledge that violence typically surrounds the drug trade. There is nothing

in Holloman’s testimony that unfairly prejudiced appellant.

      In his third issue, appellant claims the weight of the evidence does not

support his conviction. (Appellant’s brief at 24.)

                   A motion for a new trial based on a claim that
            the verdict is against the weight of the evidence is
            addressed to the discretion of the trial court.
            Commonwealth v. Widmer, 560 Pa. 308, 319, 744
            A.2d 745, 751-52 (2000); Commonwealth v.
            Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189
            (1994). 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. Widmer, 560 Pa. at 319-20,
            744 A.2d at 752. 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.’” Id. at 320, 744 A.2d at
            752 (citation omitted). It has often been stated that


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            “a new trial should be awarded when the jury’s
            verdict is so contrary to the evidence as to shock
            one’s sense of justice and the award of a new trial is
            imperative so that right may be given another
            opportunity to prevail.” Brown, 538 Pa. at 435, 648
            A.2d at 1189.

                   An appellate court’s standard of review when
            presented with a weight of the evidence claim is
            distinct from the standard of review applied by the
            trial court:

                  Appellate review of a weight claim is a
                  review of the exercise of discretion, not
                  of the underlying question of whether the
                  verdict is against the weight of the
                  evidence. Brown, 648 A.2d at 1189.
                  Because the trial judge has had the
                  opportunity to hear and see the evidence
                  presented, an appellate court will give
                  the gravest consideration to the findings
                  and reasons advanced by the trial judge
                  when     reviewing       a    trial    court’s
                  determination that the verdict is against
                  the     weight      of     the      evidence.
                  Commonwealth v. Farquharson, 467
                  Pa. 50, 354 A.2d 545 (Pa.1976). One of
                  the least assailable reasons for granting
                  or denying a new trial is the lower court’s
                  conviction that the verdict was or was
                  not against the weight of the evidence
                  and that a new trial should be granted in
                  the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (emphasis

omitted).

     Instantly, appellant attacks the credibility of Holloman and Divers.

Appellant maintains Holloman was a drug dealer and had ulterior motives for

testifying against him.   (Appellant’s brief at 24-25.)    Appellant claims that



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Divers was under the influence of narcotics when he spoke to the police, and

could not be counted on to tell the truth.     (Id. at 25-26.)   According to

appellant, Holloman and Divers were inherently dishonest and corrupt.

        The record reveals that the defense attempted to portray Holloman as

having set up the victim.     Meanwhile, Holloman testified that he and the

victim had known each other for four or five years and they were “very close

friends.” (Notes of testimony, 5/21/13 at 7.) It was Holloman who yelled

out for an ambulance to be called and stayed with the victim after he was

shot.    (Id. at 28-29.)   Holloman was at the victim’s side when the police

arrived. (Id.) Holloman did not flee the scene as appellant and his cohorts

did.

        The Commonwealth called Divers to testify. On June 13, 2011, Divers

made a statement to the police that he was involved in the victim’s murder

on May 27, 2011, and also gave the police information regarding the robbery

and shooting of the victim on May 22, 2011. (Notes of testimony, 5/23/13

at 54-64.) At trial, Divers claimed everything he said in his statement was a

lie. (Id. at 53, 55, 60, 64.) He also claimed he was “physically assaulted”

and “beat up” by the police who interrogated him.          (Id. at 53, 55.)

Obviously, the jury did not believe him.

        In addition to Holloman and Divers, the Commonwealth presented the

testimony of Delisha Foy whose testimony was similar to Holloman’s




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description of what occurred at her house when appellant and his cohorts

entered. (Notes of testimony, 5/22/13 at 17-22).

      The jury evidently found the Commonwealth’s witnesses credible and

chose not to believe appellant’s version of the events. Commonwealth v.

Dailey, 828 A.2d 356, 358-359 (Pa.Super. 2003) (the finder-of-fact is free

to believe all, some, or none of the evidence presented and is free to

determine the credibility of the witnesses). The trial court reasoned that the

verdict rendered did not shock its conscience. (Trial court opinion, 8/4/14 at

7.) Based on our review, we find no abuse of the trial court’s discretion in

refusing to award a new trial based on the weight of the evidence.

      Last, appellant argues the evidence was insufficient to support his

convictions for aggravated assault and attempted murder.

      Our standard of review is well settled:

                   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


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            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. Fabian, 60 A.3d 146, 150-151 (Pa.Super. 2013),

quoting Commonwealth v. Jones, 886 A.2d 689, 704 (Pa.Super. 2005),

appeal denied, 897 A.2d 452 (Pa. 2006) (citations omitted).

      Attempted   murder    is   defined   by   reading   the   attempt   statute,

18 Pa.C.S.A. § 901(a), in conjunction with the murder statute, 18 Pa.C.S.A.

§ 2502(a) (murder of the first degree). Commonwealth v. Johnson, 874

A.2d 66, 71 (Pa.Super. 2005), appeal denied, 899 A.2d 1122 (Pa. 2006).

The criminal attempt statute indicates that:

            A person commits an attempt when, with intent to
            commit a specific crime, he does any act which
            constitutes a substantial step toward the commission
            of that crime.

18 Pa.C.S.A. § 901(a). Murder is defined as:

            § 2502. Murder

            (a)   Murder of the first degree.--A criminal
                  homicide constitutes murder of the first degree
                  when it is committed by an intentional killing.

18 Pa.C.S.A. § 2502.    Accordingly, the elements of attempted murder are

(1) the taking of a substantial step, (2) towards an intentional killing. See

18 Pa.C.S.A. §§ 901(a), 2502(a).      For a defendant to be found guilty of

attempted murder, the Commonwealth must establish specific intent to kill.


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Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super. 2004). The

Commonwealth can prove the specific intent to kill through circumstantial

evidence.   Commonwealth v. Schoff, 911 A.2d 147, 160 (Pa.Super.

2006).   “[T]he law permits the fact finder to infer that one intends the

natural and probable consequences of his acts.”           Commonwealth v.

Gease, 696 A.2d 130, 133 (Pa. 1997), cert. denied, 522 U.S. 935 (1997).

      We reject appellant’s assertion that the Commonwealth failed to prove

that he took a substantial step to bring about the victim’s death because he

only fired one shot, and failed to establish that the victim’s wounds were life

threatening. As to the latter contention, it is clear that since proof of actual

bodily harm is unnecessary to establish attempted murder, the extent of the

victim’s wounds does not undermine the sufficiency of the evidence.

Commonwealth v. Dale, 836 A.2d 150, 154 (Pa.Super. 2003); see also

Commonwealth v. Padgett, 348 A.2d 87, 88 (Pa. 1975) (holding that

firing bullet in general area where vital organs are located is sufficient to

prove specific intent to kill beyond reasonable doubt).

      Appellant’s claim that he only fired one shot; and therefore, he did not

attempt to kill the victim is without merit.       Holloman testified that he

watched as appellant ran down the street, drew his gun, and shot the fleeing

unarmed victim. The bullet struck the victim in his left buttock and lodged

in his pelvis, where it remained permanently. Appellant did not need to fire

more shots or have a better aim and cause a more severe injury to prove he



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acted with the intent to kill.   Shooting the fleeing victim and striking him

with a bullet was sufficient.    See Holley, supra (sufficient evidence for

attempted murder where Holley wrestled corrections officer’s gun out of its

holster, aimed it at the officer’s chest, and fired; the bullet missed but the

officer suffered shoulder injuries and a black eye as a result of the incident);

Commonwealth v. Jones, 629 A.2d 133, 135 (Pa.Super. 1993) (evidence

sufficient to support conviction for attempted murder where defendant

aimed and fired gun at victim but did not cause injury); Commonwealth v.

Cross, 331 A.2d 813, 814-815 (Pa.Super. 1974) (conviction for attempted

murder sustained where single bullet fired by Cross penetrated car door at

height near victim’s stomach and serious injury would have resulted had

door not protected victim).

      Appellant’s argument that the evidence was insufficient to support his

aggravated assault conviction is also without merit.       Appellant uses the

same argument that the victim was only shot once and did not suffer a

serious injury.   “[A]ggravated assault does not require proof that serious

bodily injury was inflicted, but only that an attempt was made to cause such

injury.” Commonwealth v. Rosado, 684 A.2d 605, 608 (Pa.Super. 1996).

For purposes of aggravated assault, an “attempt” is shown where the

accused intentionally acts in a manner which constitutes a substantial step

toward perpetrating serious bodily injury upon another. Commonwealth v.




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Galindes, 786 A.2d 1004, 1012 (Pa.Super. 2002), appeal denied, 803

A.2d 733 (Pa. 2002).

      Here, appellant fired a gun at a fleeing, unarmed victim. The act of

firing a gun at someone has consistently been found to be sufficient to

support a conviction for aggravated assault, even when the victim is not

actually injured. See Commonwealth v. McCalman, 795 A.2d 412, 415-

416 (Pa.Super. 2002) (intent to cause serious bodily injury found where

appellant fired bullets in direction of victims and narrowly missed them),

appeal denied, 812 A.2d 1228 (Pa. 2002); Galindes, supra (the act of

firing a gun at victim was sufficient to establish that appellant attempted to

cause serious bodily injury even though the victim was not struck by any of

the bullets).

      Based on the above, the evidence was sufficient to sustain appellant’s

convictions for attempted murder and aggravated assault.

      Appellant’s judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/17/2015




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