Commonwealth v. Fortson, 911 WDA 2016

• Decision Date: 26 May 2017
• Docket Number: No. 911 WDA 2016,911 WDA 2016
• Parties: COMMONWEALTH of Pennsylvania v. Daikweon K. FORTSON, Appellant
• Court: Pennsylvania Superior Court

165 A.3d 10

COMMONWEALTH of Pennsylvania

v.Daikweon K. FORTSON, Appellant

No. 911 WDA 2016

Superior Court of Pennsylvania.

Submitted February 13, 2017

Filed May 26, 2017

Brandon M. Herring, Allegheny County Office of Conflict Counsel, Pittsburgh, for appellant.

Margaret B. Ivory, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.^*

OPINION BY RANSOM, J.:

Appellant, Daikweon Fortson, appeals from the judgment of sentence of thirteen to twenty-six years of incarceration imposed January 28, 2016, following a bench trial resulting in his conviction for attempted homicide, robbery, aggravated assault, possession of a firearm by a minor, and possession of a weapon.¹ We affirm.

The relevant facts and procedural history are as follows. Appellant and Karron Tucker showed up at C.J. Clawson's house to buy marijuana from him. See Notes of Testimony (N.T.), 11/2/2015, at 32. C.J. was hanging out with Tyler Grant at the time. See id. C.J. did not have enough marijuana to sell them. Id. at 25, 33. C.J. contacted Gino Roland, Jr.² via twitter to inquire about purchasing additional marijuana. Id. at 26, 33. Gino agreed to sell C.J. one half ounce of marijuana. Id. at 116, 126. C.J. agreed to meet Gino at Carl Schmidt's house. See id.

C.J. brought Appellant, Karron, and Tyler when he went to meet Gino at Carl's house. Id. at 26. When the four of them arrived, C.J. remained on the porch while Gino and Carl walked into the alleyway on the side of the house with Appellant, Karron, and Tyler. Id. at 27, 57. Either Appellant or Karron took the marijuana without paying Gino. Id. at 29, 58, 134. Appellant and Karron tried to run away, but Gino and Carl chased them and caught up. Id. at 29–30. A fight ensued. Id. at 30. Gino began wrestling with Karron. Id. at 46, 59–60, 132. Gino knocked Karron down onto the ground and was standing over top of him. Id. at 132. Appellant pulled a gun on Gino. Id. at 30–31, 59, 131–32. At the time of the incident, however, Appellant was ineligible to carry a concealed firearm because of his age. Id. at 111.

Appellant aimed the gun at Gino's face, and Gino heard a click, but it did not fire. Id. at 31, 136–138. Gino tried to wrestle Appellant for the gun. Id. at 60. Appellant got free, pulled the trigger, and shot Gino in the back from five feet away. Id. at 31, 60–61. Carl remained to help Gino as the others fled. Id. at 53. Officer Jones found Gino lying on the sidewalk bleeding profusely. Id. at 11–12, 11–15. Gino suffered two fractured ribs

, two fractured vertebrae, and two collapsed lungs. Id. at 121–123.

Following a non-jury trial, Appellant was found guilty and sentenced as described above.³ Appellant filed a post-sentence motion, which the court denied on May 31, 2016. Appellant timely filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement. The court filed a responsive opinion.

On appeal, Appellant raises the following issues:

I. Whether the Commonwealth produced sufficient evidence to sustain a guilty verdict for criminal attempt—criminal homicide?

II. Whether the verdict is against the weight of the evidence presented?

III. Whether Pennsylvania's sentencing guidelines as applied to a juvenile defendant violated the proportionality requirement of the Eighth Amendment?

Appellant's Br. at 3.

First, Appellant challenges the sufficiency of the evidence offered to prove criminal attempt to commit murder. In reviewing the sufficiency of the evidence, our standard of review is as follows:

[W]hether 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 [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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

"A person commits an attempt when, with the intent to commit a specific crime, he does any act which constitutes a substantial step towards the commission of that crime." 18 Pa.C.S. § 901(a).

"For a defendant to be found guilty of attempted murder, the Commonwealth must establish specific intent to kill." Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.2004). 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). "The Commonwealth may establish the mens rea required for first-degree murder, specific intent to kill, solely from circumstantial evidence." Id. 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." Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1009 (2007) ; see also Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1034 (2007) ("a specific intent to kill may be inferred from the use of a deadly weapon on a vital part of the victim's body.").

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016), appeal denied , 143 A.3d 955 (Pa. 2017).

Here, Appellant argues that the Commonwealth failed to present evidence to prove that he possessed the specific intent to kill, i.e. , to commit a "willful, deliberate, and premeditated killing." Appellant's Br. at 12 (quoting 18 Pa.C.S. § 2502 ). Appellant asserts that the Commonwealth provided no evidence of prior interactions between the victim and Appellant. He asserts that he did not initiate the physical altercation and maintains that he was trying to escape when he shot the victim.

As previously noted, a specific intent to kill may be proven by circumstantial evidence. Further, in the trial of a person for attempting to commit murder, "the fact that that person was armed with a firearm, used or attempted to be used, and had no license to carry the same, shall be evidence of that person's intention to commit the offense." 18 Pa.C.S. § 6104.

Appellant argues that he did not initiate the physical altercation, which appears to assert that he acted in self-defense rather than pre-meditated the killing. However, there is no evidence that he presented this theory in pre-trial motions or as a defense at trial. Further, his argument does not articulate a challenge that the evidence was insufficient to infer a specific intent to kill. Thus, his argument is misplaced as it is more appropriately directed to the weight of the evidence presented at trial, as discussed infra .

Here, the evidence presented established that Appellant attempted to shoot the victim in the face, but the gun failed to fire. Appellant tried to shoot the Victim again. As the trial court explained, he "took deliberate aim at the back of a man on the ground and fired a bullet into his spine." TCO, 8/26/2016, at 10. Appellant shot the victim at a close range, nearly killing him.⁴ The jury may infer specific intent to commit murder from the fact that Appellant took multiple attempts to shoot the Victim in vital parts of his body. Rega, 933 A.2d at 1009 ; Cousar, 928 A.2d at 1034 ; see also Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1039 (2002). In addition, Appellant was illegally armed with a firearm at the time of the incident, which provides further evidence of intent. See 18 Pa.C.S. § 6104. Based on the totality of the circumstances, the evidence was sufficient for the jury to infer a specific intent to murder the victim beyond a reasonable doubt. Tucker, 143 A.3d at 964–65.

Second, Appellant contends that the verdict was against the weight of the evidence. Appellant reasserts that he was trying to escape from the victim, rather than kill him. Further, Appellant claims that the factfinder relied on contradictory and inconsistent testimony. Appellant argues that inconsistencies in the witness testimony made it "equally if not more likely that [Appellant] was attempting to effectuate his escape from the incident when he shot the victim, and was not trying to kill him." Appellant's Br. at 13–14.

In assessing a claim that the verdict was against the weight of the evidence, this Court will not substitute its judgment for that of the factfinder, which is free to assess the credibility of witnesses and to believe all, part, or none of the evidence presented. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102 (2004) ; Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 101 (1995) ("[A]n appellate court is barred from substituting its judgment for that of the finder of fact." (citing Commonwealth v. Pronkoski e, 498 Pa. 245, 445 A.2d 1203, 1206 (1982) ).

"When the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court's decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review." Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004) (citation omitted). "Moreover, where the trial court has ruled on the weight claim below, an appellate court's

...