Commonwealth v. Hollamon
| Decision Date | 11 March 2015 |
| Docket Number | No. 827 WDA 2014,J-S13018-15,827 WDA 2014 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH OF PENNSYLVANIA Appellee v. XAVIER ANDERSON HOLLAMON Appellant |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appellant, Xavier Anderson Hollamon, appeals from the April 7, 2014 aggregate judgment of sentence of 12½ to 25 years' imprisonment, imposed after he was found guilty of one count each of attempted murder, recklessly endangering another person (REAP), possession of a weapon, carrying a firearm without a license, and aggravated assault.1 After careful review, we affirm in part and vacate in part.
The trial court briefly summarized the relevant factual history of this case as follows.
The evidence at [Appellant]'s trial revealed that [on August 24, 2013, Appellant] pulled out a gun and shot the victim[, Dayquan Robison,] at almost point-blank-range upon confronting him on the street. [Dayquan]'s mother was between the two at the time trying to get [Appellant] to leave her son alone. She testified as to what occurred, and more significantly, the shooting was captured in its entirety on video via a security camera at the location. The jury saw the actual event as it occurred.
Trial Court Opinion, 6/20/14, at 1.
On November 23, 2013, the Commonwealth filed an information, charging Appellant with the above-mentioned offenses, as well as one additional count of REAP. On February 13, 2014, Appellant proceeded to a two-day jury trial, at the conclusion of which the jury found Appellant guilty of one count each of attempted murder, REAP, possession of a weapon, carrying a firearm without a license, and aggravated assault. As to the second REAP count, the trial court entered a judgment of acquittal. On April 7, 2014, the trial court sentenced Appellant to an aggregate term of 12½ to 25 years' imprisonment.2 On April 17, 2014, Appellant filed a timely post-sentence motion, in which Appellant argued, among other things, that the jury's verdict was against the weight of the evidence. See generally Pa.R.Crim.P. 607(A)(3). The trial court denied Appellant's post-sentencemotion that same day. On May 15, 2014, Appellant filed a timely notice of appeal.3
On appeal, Appellant raises the following three issues for our review.
I. Whether Appellant's conviction associated with a shooting was against the weight of the evidence in light of the fact the Commonwealth did not disapprove [sic] [] Appellant's theory of [j]ustification[?]
II. Whether the [trial c]ourt erred in its instruction relative to the use of deadly force in its jury instruction of self-defense/justification cases[?]
III. Whether the issue of mandatory minimum incarceration for possession of a firearm during the commission of a [sic] the offense should have been submitted to the jury pursuant to Commonwealth v. Newman, [99 A.3d 86 (Pa. Super. 2014) (en banc)], Commonwealth v. Munday[, 78 A.3d 661 (Pa. Super. 2013)]; pursuant to the United States Supreme Court's decision in Alleyne v. United States, 133 S. Ct. 2151 (2013)[?]
In his first issue, Appellant avers that the jury's verdict was against the weight of the evidence. Id. at 6. We begin by noting our well-settled standard of review. "A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court." Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citationomitted). An argument that the jury's verdict was against the weight of the evidence concedes that the evidence was sufficient to sustain the convictions. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, Lyons v. Pennsylvania, 134 S. Ct. 1792 (2014). Our Supreme Court has admonished that "[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." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). Instead, "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. (internal quotation marks and citation omitted). "[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 Id.
As an appellate court, it "is not [our role] to consider the underlying question of whether the verdict is against the weight of the evidence." Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted). An argument that the jury's verdict was against the weight of the evidence remains "[o]ne of the least assailable reasons for granting ... a new trial ...." Id. (citation omitted). "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." Id. (citation omitted; emphasis in original).
In this case, Appellant avers the jury's verdict was against the weight of the evidence based on the following.
The review of the transcript in this matter, in particular the testimony of [] Appellant, indicated that the victim of the shooting in this matter was in possession of a firearm at the time [] Appellant took the necessary step of shooting the victim to protect himself from serious bodily injury or death. Furthermore, it was established by additional evidence that the victims' [sic] girlfriend hid the weapon in her house. It should be noted "victim" [sic] in this case never testified at trial. Therefore, it is clear the verdict presented in this case was against the weight of the evidence presented at trial. Thus Appellants [sic] conviction [sic] should be overturned.
Appellant's Brief at 6 (emphasis in original).
To summarize the evidence, the jury heard testimony from Tabitha Robison, Dayquan's mother, who was present at the time of the shooting. Tabitha testified that she received a phone call from Dayquan stating that "guys [were] following him and he thought they were going to jump him." N.T., 2/13/14, at 20. Tabitha drove to JJ's Pub, and Dayquan came out of the bar once she arrived via a side door with his girlfriend. Id. at 21. Robison noticed two other gentlemen on the other side of the street. Id. at 22. When Dayquan and his girlfriend came out of the bar, these other two men began to walk towards him. Id. According to Tabitha, one of the men, in a red shirt, told Dayquan not to disrespect his mother. Id. at 23. Tabitha identified Appellant as the man in the red shirt. Id. at 24-25. Tabitha got out of her car and told Appellant that she had spoken with his mother and noone disrespected her. Id. at 23. Tabitha got in between Dayquan and Appellant. Id. As Tabitha put her arms up between them, Appellant pulled out a gun and began shooting. Id. at 24. Dayquan was shot twice. Id. Tabitha testified that her son was not armed, nor did he insinuate that he was. Id. at 26. The Commonwealth then played security camera footage of the incident for the jury.4 Tabitha identified herself and Dayquan in the video. Id. at 34. On redirect examination, Tabitha also identified the person depicted in the video shooting Dayquan as Appellant. Id. at 40.
Appellant testified in his own defense. Appellant told the jury that he approached Dayquan outside the bar to discuss an issue with Appellant's mother owing Dayquan money, and the victim "got aggressive with [him]." Id. at 90. Appellant next stated that he saw Dayquan "reach in his pocket and ... saw a handle of a gun come out." Id. at 91. Specifically, the gun was a .380. Id. Appellant further testified that he was in fear for his life and protected himself as a result. Id. at 97.
It is axiomatic that the jury is the ultimate finder of fact at trial.
[T]he veracity of a particular witness is a question which must be answered in reliance on the ordinary experiences of life, common knowledge of the natural tendencies of human nature, and observations of the character and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity of jurors to assess, the question of a witness's credibility is reserved exclusively for the jury.
Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted). Likewise, "[t]he 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. Feese, 79 A.3d 1101, 1122 (Pa. Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).
In this case, the jury was free to find Tabitha's trial testimony credible, find Appellant's testimony not credible, and resolve any inconsistencies in the Commonwealth's favor. See generally Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014) (). The jury was presented with Tabitha's testimony and Appellant's. They weighed both and ultimately concluded that Tabitha's testimony was credible and Appellant's was not credible. As an appellate court, we will not reweigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Based on these considerations, we conclude the trial court did not commit a palpable abuse of discretion in deciding the jury's verdict was not against the weight of the evidence. See Morales, supra.
In his second issue, Appellant avers that the trial court abused its discretion when it failed to give an instruction to the jury based onPennsylvania's "Stand Your Ground" law. Appellant's Brief at 7; see also...
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