Commonwealth v. Harding
| Decision Date | 06 February 2023 |
| Docket Number | 883 EDA 2022,J-S37030-22 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. JASON HARDING Appellant |
| Court | Pennsylvania Superior Court |
Jason Harding appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, after being convicted by a jury of third-degree murder,[1] carrying a firearm without a license,[2] and carrying a firearm in a public place in Philadelphia.[3] After review, we affirm.
On December 21, 2018, Harding and four other individuals[4] were filming a "rap video" near 2100 Middleton Street in Philadelphia County. N.T. Jury Trial, 9/1/21, at 70.[5] At approximately 10:00 PM, the victim Bernell Gibson, inquired as to what the group was doing on the street and requested that they leave. Id. When Harding first saw the victim approach the group, Harding saw a light and thought the victim was holding a firearm. In response, Harding removed his firearm from his pocket. Upon realizing the light Harding saw was the victim's phone, Harding placed his firearm under his shirt. Id. at 76-77; see Exhibit D-1.
Harding testified that the victim's tone was "aggressive," id. at 70, and that the victim was "calling for somebody." Id. at 71. Harding "[saw the victim's] right hand [go] down[] his body [and go] sideways [] and it looked like he went to reach for something, that's when I started shooting." Id. at 71. Harding testified, Id. at 72. Harding was "probably seven feet" away from the victim during the incident, id. at 75, and fired a semi-automatic firearm nine times.[6] Detective Thorston Lucke testified that surveillance video shows "[the victim] turn and kind of run away as he's being shot." Id., 8/31/21, at 42.
The parties stipulated that the victim died due to a gunshot wound to his torso. Id. at 117-18.
On September 7, 2019,[7] Harding was arrested and charged with murder, a violation of the Uniform Firearms Act, and possessing an instrument of a crime. A preliminary hearing was held on February 30, 2021, during which Harding pled not guilty to all charges. Harding proceeded to a jury trial on August 30, 2021, after which he was found guilty of third-degree murder, carrying a firearm without a license, and carrying a firearm in a public place in Philadelphia. Sentencing was deferred pending a pre-sentencing investigation (PSI) report and a mental health evaluation.
On November 19, 2021, the court sentenced Harding to an aggregate term of 22½ to 45 years' incarceration followed by 5 years of probation. Harding filed a timely post-sentence motion, which was denied. This timely appeal followed. Both Harding and the trial court complied with Pa.R.A.P. 1925. Harding raises the following claims for our review:
Harding first claims that the evidence is insufficient to establish beyond a reasonable doubt that he acted with malice, the mens rea necessary for third-degree murder. Appellant's Brief, at 20-22. Specifically, he contests the inferences drawn by the jury that he exhibited malice based on the number of shots he fired at the victim and their direction of travel, and that the victim was either retreating or had ceased to be hostile. Id. at 20. Harding is entitled to no relief.
This Court's review of sufficiency claims is well-settled:
When reviewing challenges to the sufficiency of the evidence, [this Court] evaluates the record in the light more favorable to the Commonwealth as verdict winner, giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element beyond a reasonable doubt. However, the Commonwealth need not establish guilt to a mathematical certainty, and it may sustain its burden by means of wholly circumstantial evidence. In addition, the court may not substitute its judgment for that of the fact finder, and where the record contains support for the convictions, they may not be disturbed. Lastly, the finder of fact is free to believe some, all, or none of the evidence presented.
Commonwealth v. Smith, 146 A.3d 257, 261-62 (Pa. Super. 2016) (quotations and citations omitted).
Third-degree murder is defined as murder that is not first-degree murder (intentional killing) or second-degree murder (killing where defendant was a principal or accomplice in the perpetration of a felony). See 18 Pa.C.S.A. 2502(a)-(c). "To establish [third-degree murder], the Commonwealth need only prove beyond a reasonable doubt that the defendant killed an individual, with legal malice, i.e., [] wickedness of disposition, hardness of heart, wantonness, cruelty, recklessness of consequences, or a mind lacking regard for social duty." Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011) (internal quotations and citations omitted). The jury need not inquire as to whether the defendant had a specific intent to kill. Commonwealth v. Meadows, 787 A.2d 312, 317 (Pa. 2001).
Evidence is sufficient to establish malice where a defendant shoots the victim in a vital part of his body. In Commonwealth v. Crosley, 180 A.3d 761, (Pa. Super. 2018), this Court found malice where the defendant fired his weapon into the victim's torso, a vital part of the body, three times from about an inch away. Id. at 764, 767-78; cf. Commonwealth v. Sepulveda, 855 A.2d 783, 789 (Pa. 2004) (); Commonwealth v. Drumheller, 808 A.2d 893, 908 (Pa. 2002) ().
In Commonwealth v. Jones, 271 A.3d 452 (Pa. Super. 2021), this Court found sufficient evidence of malice where the defendant intentionally fired a gun, in rapid fire succession, directly at the victim and did not stop shooting as the victim fell to the floor. Id. at 460. The Jones Court reasoned that the evidence was clearly sufficient to show malice where the defendant "intentionally fired a gun directly at [the victim]." Id.; see Commonwealth v. Young, 431 A.2d 230, 232 (); Commonwealth v. Patterson, 180 A.3d 1217, 1223 (Pa. Super. 2018) ().
Here, Harding intentionally fired a semiautomatic weapon nine times in the direction of the victim, striking the victim in his torso, a vital part of the body. N.T. Jury Trial, 8/31/21, at 92, 110, 117-18; Patterson, supra; Jones, supra; Pappert, supra. Moreover, evidence supports the determination that the victim had either ceased to be hostile or was retreating. In particular, Detective Lucke testified that the victim was holding a cell phone, not a weapon, and was backing away from Harding and his friends as Harding continued shooting. Id. at 42, 44 ).
In light of the foregoing, and giving the Commonwealth the benefit of all reasonable inferences, the evidence is sufficient to establish, beyond a reasonable doubt, that Harding acted with malice. Smith, supra.
Harding next claims that his adjudication is against the weight of the evidence where he was justified in using lethal force on the victim, who was aggressive and hostile to Harding and his friends. This Court reviews weight of the evidence claims for an abuse of discretion:
The weight of the evidence is exclusively for the finder of fact[,] who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. [This Court] cannot substitute its judgment for...
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