NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No EDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. ODELL JOHNSON Appellant No EDA 2013 Appeal from the Judgment of Sentence March 15, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR ; CP-51-CR BEFORE: FORD ELLIOTT, DONOHUE, JENKINS, JJ. MEMORANDUM BY JENKINS, J. FILED MAY 23, 2014 Appellant, Odell Johnson ( Johnson ), appeals from the judgment of sentence entered after his convictions for first-degree murder, third-degree murder, carrying a firearm without a license, carrying a firearm on a public street or public property in Philadelphia, and possessing an instrument of crime ( PIC ). 1 Johnson challenges the sufficiency of the evidence to support his convictions, and contends that his convictions are against the weight of the evidence. We affirm. The charges in this matter stem from the shooting deaths of Reginald Marshall and Darryl Blow. We summarize the factual and procedural history 1 18 Pa.C.S. 2502(a), 2502(c), 6106(a)(1), 6108, 907(a), respectively. Johnson was also charged with one count of possession of a firearm by a prohibited person, 18 Pa.C.S The Commonwealth nolle prossed that charge, which had been severed for a separate trial, after Johnson was found guilty of the other charges. See Trial Court Opinion, 9/16/13, at 1 n.1; N.T. 3/15/2013 at 161.

2 of this matter as follows. On March 16, 2010, at approximately 6:00 p.m., 16-year-old Regina Marshall was with her friends Jackie, Dominia, Aliah, and Dana 2 outside of a recreation center at the corner of Roumfort Road and Pickering Avenue in the Mt. Airy section of Philadelphia. N.T. 3/13/2013 at After Regina Marshall had been at the recreation center for approximately ten minutes, another group of girls began staring at her and her friends. Id. at Regina Marshall and her friends became nervous and decided to leave the area. Id. at 14, 15. The other group of girls followed them. Id. at 15, 16. A group of women then pulled up in a car. Id. Regina Marshall did not know any of the women, who physically attacked her and her friends. Id. at 17, 18. Regina Marshall managed to retreat to a safe location where she called her mother, Rhonda Marshall, and told her that she was being attacked at the recreation center. Id. at 18-19; N.T. 3/12/2013 at Regina Marshall s brother, Anthony Marshall, arrived at the recreation center. N.T. 3/13/2013 at 20. As Anthony Marshall sat in his car, Regina Marshall told him that she had been attacked. Id. at Johnson then approached Anthony Marshall s car and the two men began arguing. Id. at 22. Johnson told Anthony Marshall that Regina Marshall had hit Johnson s mother. Id. at 24. Johnson then pulled his shirt up and flashed a gun that 2 These individuals last names were not given at trial. See N.T., 3/13/2013, at

3 was tucked in his waistband. Id. at 22, 23. As Anthony Marshall drove away, Johnson threw a bottle at the car. Id. After Anthony Marshall left, the police and Rhonda Marshall both arrived at the recreation center. Id. at 24. Regina Marshall told her mother and the police that one of the women in the crowd had hit her. Id. at 26, N.T. 3/12/2013 at Rhonda Marshall asked to file a complaint against the woman, but the police, who were attempting to get the crowd to disperse, told her to go home. N.T. 3/12/2013 at 160. Regina and Rhonda Marshall returned home and Rhonda Marshall called her ex-husband, Reginald Marshall. Id. at She told him about the incident and Reginald Marshall said that he would come over on his way to work to assist her. Id. When the police arrived at one of the other children s homes, the child s guardian called Rhonda Marshall to discuss the possibility of filing a police report. Id. at As Rhonda and Reginald Marshall drove separately to that residence to file a police report, Rhonda Marshall spotted Johnson standing next to a car on the 8500 block of Fayette Street. Id. at 174. Rhonda Marshall pulled up next to Johnson and yelled at him, asking him why he had flashed a gun at her son. Id. at Johnson responded by telling Rhonda Marshall that he would kill her and her whole family. Id. at 177; Trial Court Opinion, 9/16/2013 at 4. Johnson proceeded to punch[] Regina Marshall in the face through the open window of the car. Trial Court - 3 -

4 Opinion, 9/16/2013 at 4; N.T. 3/12/2013 at ; 3/13/2013 at 37-40, Rhonda Marshall retrieved an ice scraper from the car, exited the vehicle, and chased Johnson while hitting him several times with the scraper. N.T. 3/12/2013 at ; 3/13/2013 at Reginald Marshall arrived at the scene and put his arms around Johnson in a bear hug. N.T. 3/12/2013 at ; 3/13/2013 at 41-42, 102. The two men fell to the ground. N.T. 3/13/2013 at 43. Johnson pulled out his gun and shot Reginald Marshall three times, twice in the chest and once in the back. N.T. 3/12/2013 at , 143, ; 3/13/2013 at Rhonda Marshall drove Reginald Marshall to Chestnut Hill Hospital, where he was pronounced dead. N.T. 3/12/2013 at , ; 3/13/2013 at 51. When the police arrived at the scene of the shooting, they found another man who had been fatally shot lying on the ground across the street, approximately 14 feet away from where Reginald Marshall had been shot. N.T. 3/12/2013 at 43-49, 92, 93. That man was identified as Darryl Blow, a friend of Reginald Marshall. Id. at 35, 36, 203. Ballistics evidence showed that Mr. Blow had been shot with the same gun that killed Reginald Marshall. N.T. 3/13/2013 at As a result, police concluded that Darryl Blow had accompanied Reginald Marshall to the location, and Johnson shot and killed him. Mr. Blow sustained one gunshot wound to the abdomen and one to his face. N.T. 3/12/2013 at

5 On March 15, 2013, following a trial before the Honorable Glenn B. Bronson, a jury found Johnson guilty of the aforementioned charges. 3 The trial court immediately imposed the mandatory sentence of life in prison for the first-degree murder charge, 4 a consecutive mandatory sentence of life in prison for the third-degree murder charge, 5 and concurrent prison terms for the remaining convictions, which did not affect the aggregate sentence. On March 18, 2013, Johnson filed post-trial motions, which the trial court denied on July 10, This timely appeal followed, in which Johnson raises the following two issues for our review: 1. Is [Johnson] entitled to an arrest of judgment with respect to his convictions for murder of the first 3 The charges in this matter stem from two criminal cases. In the case docketed at CP-51-CR , the jury found Johnson guilty of murder in the third degree, carrying a firearm without a license, carrying a firearm on a public street or public property in Philadelphia, and possessing an instrument of crime. In the case docketed at CP-51-CR , the jury found Johnson guilty of murder in the first degree. Both cases were jointly tried before the Honorable Glenn B. Bronson, and have been consolidated on appeal Pa.C.S. 1102(a)(1) (providing that, unless a person who has been convicted of first-degree murder fits into one of the specified exceptions that do not apply here, any person shall be sentenced to death or a term of life imprisonment in accordance with 42 Pa.C.S (relating to sentencing procedure for murder of the first degree)) Pa.C.S. 9715(a) (providing for a mandatory sentence of life imprisonment for any person convicted of third-degree murder who has been previously been convicted at any time of murder or manslaughter at the time of sentencing). See also Commonwealth v. Morris, 958 A.2d 569, (Pa.Super.2008) (en banc), app. denied, 991 A.2d 311 (Pa. 2010) (providing that defendant can be sentenced to life in prison under section 915(a), even though defendant was sentenced on the same date for both third-degree murder counts)

6 [degree], murder of the third degree, carrying a firearm without a license, carrying a firearm on a public street and possessing an instrument of crime since the evidence is insufficient to sustain the verdicts of guilt as the Commonwealth failed to sustain its burden of proving the [Johnson s] guilt beyond a reasonable doubt? 2. Is [Johnson] entitled to a new trial since the verdicts of guilt are against the weight of the evidence? See Brief for Appellant at 4. In this appeal, Johnson first contends that the evidence was insufficient to support his convictions. Before reviewing the issue on its merit, we must first determine whether this issue was preserved for appellate review under Pa.R.A.P. 1925(b) and Pa.R.A.P We find Johnson preserved his sufficiency of the evidence claim for the charges of first-degree murder, third-degree murder, and possessing an instrument of crime, but waived this claim with regard to his convictions for carrying a firearm without a license or carrying a firearm on a public street in Philadelphia. In his 1925(b) statement and his appellate brief, Johnson raises only one reason in support of his argument that the evidence is insufficient to support all of his convictions. He does not argue that the Commonwealth failed to prove the elements of the charged crimes, rather he claims that the Commonwealth did not rebut [his] claim of self-defense 6 and that the 6 Concise Statement of Errors Complained of on Appeal at 1-2; Brief for Appellant, at

7 Commonwealth s evidence showed that [Johnson s] resort to deadly force was reasonable under the circumstances. 7 Because a claim of self-defense is not a defense to the charges of carrying a firearm without a license and carrying a firearm on a public street in Philadelphia, and because he provides no reason why the evidence was insufficient on those charges, 8 he has waived the sufficiency claim as to those convictions by failing to develop the argument. 9 For the sufficiency of the evidence challenge to the convictions of firstdegree murder, third-degree murder and possession of an instrument of crime, we are mindful of our well-established standard of review: [W]hether[,] viewing all the evidence admitted at trial in the light most favorable to the [Commonwealth as 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 7 Brief for Appellant, at See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super.2007) (noting the failure to adequately develop an argument in an appellate brief may result in waiver of the claim under Pa.R.A.P. 2119). 9 See Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.Super.2002) (finding waiver where an appellant failed to identify specific reasons in a 1925(b) statement in support of the issue on appeal). But cf. Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (finding no waiver in a relatively straightforward case if the trial court is able to identify the issues)

8 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. Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003) (citations omitted); see also Commonwealth v. Bostick, 958 A.2d 543, 560 (Pa.Super.2008) (quoting Commonwealth v. Smith, 956 A.2d 1029, (Pa.Super.2008)). In applying the above test, we must evaluate the entire record and we must consider all evidence actually received. Troy, supra, at Further, 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. Id. Self-defense is an affirmative defense to a first-degree murder charge, a third-degree murder charge, and a PIC charge. See, e.g., Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1221 (2009) (first-degree murder); Commonwealth v. Ventura, 975 A.2d 1128, 1142 (third-degree murder); Commonwealth v. Naranjo, 763 A.2d 889, 891 (Pa.Super.2000) (PIC). As to charges of first-degree or third-degree murder, a claim of self-defense (or justification, using the term employed in the Crimes Code) requires evidence establishing three elements: (a) [that the defendant] reasonably believed that he was in imminent danger of death or - 8 -

9 serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and (c) that the [defendant] did not violate any duty to retreat. Commonwealth v. Mouzon, 617 Pa. 527, 53 A.3d 738 (2012) (quoting Commonwealth v. Samuel, 527 Pa. 298, 590 A.2d 1245, (1991)). See also Commonwealth v. Harris, 550 Pa. 92, 703 A.2d 441, 449 (1997); 18 Pa.C.S Regarding the PIC charge, as our Supreme Court has 10 We note that the double homicide took place and Johnson was charged in Our current version of the self-defense statute became effective in Accordingly, the previous version of the statute applies, and is the version to which we cite. Section 505 provided, in relevant part: 505. Use of force in self-protection (a) Use of force justifiable for protection of the person. The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. (b) Limitations on justifying necessity for use of force. * * * (2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: (i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by - 9 -

10 explained, if the evidence was insufficient to support Johnson s charges of murder on the basis of self-defense, then the evidence would also be insufficient to support the PIC charge. 11 The Court reasoned that if the defendant was acting in self-defense, then he could not have intended to employ the gun criminally, because employing the gun in self-defense would be to employ the gun in a lawful manner. 12 If a defendant introduces evidence of self-defense, the Commonwealth bears the burden of disproving the self-defense claim beyond a reasonable doubt. Rivera, supra, at 1221 (citing Commonwealth v. Torres, 564 Pa. 219, 766 A.2d 342, 345 (2001)). The Commonwealth sustains that burden of negation if it proves any of the following: that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take Pa.C.S. 505(a), (b)(2)(i), (ii). 11 Commonwealth v. Weston, 561 Pa. 199, 749 A.2d 458, 461 (2000) (citing Commonwealth v. Gonzalez, 515 Pa. 98, 527 A.2d 106 (1987)) 12 See 18 Pa.C.S. 907(a) (delineating the elements of a PIC violation); Weston, supra, at (noting the distinction between an acquittal of the underlying killing on the basis of self-defense, where a PIC conviction cannot stand, and a conviction of voluntary manslaughter on the basis of imperfect self-defense, where a PIC conviction may stand)

11 order to save [him]self therefrom; or that the slayer violated a duty to retreat or avoid the danger. Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506, 507 (1980). See also Mouzon, supra, at After reviewing the record, we conclude that the trial court properly found that Johnson s self-defense claim for the first-degree murder and third-degree murder convictions lacks merit. The Commonwealth offered compelling evidence to refute Johnson s self-defense claim as to both the third degree murder of Reginald Marshall and the first-degree murder of Darryl Blow ( Blow ). First, the evidence shows that Johnson was the initial aggressor because he provoked the fatal confrontation. Regina Marshall testified that Johnson had been involved in an altercation earlier in the day with Anthony Marshall, her brother, during which Johnson flashed a gun at Anthony Marshall and threw a bottle at his car. N.T. 3/13/2013 at 22. Rhonda Marshall, Regina Marshall, and Natasha Nichols each testified that immediately before Reginald Marshall grabbed Johnson, Johnson punched Regina Marshall in the face through the open window of [her mother s] car. Trial Court Opinion, 9/16/2013 at 4. Further, Rhonda Marshall testified that, just prior to punching Regina Marshall, Johnson stated that he would kill Rhonda Marshall's entire family. N.T. 3/12/2013 at 177. Reginald Marshall intervened only after Johnson brandished a gun at Anthony Marshall, threatened to kill the entire Marshall family, and physically assaulted Regina Marshall. Accordingly, the trial court correctly found that the proffered

12 evidence was sufficient to prove beyond a reasonable doubt that Johnson was the initial aggressor and, by extension, that he did not act in selfdefense. See Mouzon, supra at 740 (finding the Commonwealth negates self-defense claim by proving that defendant, inter alia, was not free from fault in provoking or continuing the difficulty which resulted in the slaying ). Second, the evidence establishes that a reasonable person in Johnson s circumstances would not have believed that he was in imminent danger of death or serious bodily injury, nor would he have reasonably believed that use of deadly force was necessary to save himself. The testimony indicated that Reginald Marshall had Johnson in a "bear hug" before Johnson shot his gun. There was no evidence that Reginald Marshall was in possession of a weapon, or that he posed any threat of serious injury or death to Johnson. N.T. 3/12/2013 at ; 3/13/2013 at 41-42, 102. Although it appeared that Johnson s second victim, Blow, had a knife, there was no evidence that Johnson knew Blow was armed, or that Blow attacked Johnson. In fact, Rhonda Marshall, who was in the middle of the altercation when it occurred, did not know that Blow was present until the police discovered his body. N.T. 3/12/2013 at 243. Moreover, there was compelling evidence introduced through the crime scene investigator and medical examiner that Johnson shot Blow when he was across the street, about 14 feet away. Ultimately, Johnson, armed with a gun, shot and killed Reginald Marshall and Blow. Reginald Marshall was not armed. Blow carried a knife,

13 but was a substantial distance away from Johnson. This is compelling evidence from which the jury could conclude that Johnson could not have reasonably believed that he was in imminent danger or that he needed to use deadly force to protect himself. Finally, Johnson s alternative claim that the evidence demonstrated that Johnson acted in mistaken self-defense when he shot the victims is wholly unpersuasive. Appellant s Concise Statement of Errors Complained of on Appeal, at 2. A defendant is guilty of voluntary manslaughter, not murder, when he kills under an unreasonable belief that the killing was justified. Mouzon, supra at 744, n.5. This defense, however, more colloquially referred to as "imperfect self-defense," is not available where, as here, the jury inferred that Johnson provoked the confrontation that led to the killing. See Id. at 744; Commonwealth v. Busanet, 54 A.3d 35, 56 (Pa. 2012); Trial Court Opinion, 9/16/2013, at 9. Johnson further demonstrated his own recognition that the shooting was unjustified when he immediately fled the scene without reporting the incident. See Commonwealth v. Rizzuto, 777 A.2d 1069, 1078 (Pa. 2001), abrogated on other grounds by Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, ( evidence of flight shows a consciousness of guilt ); Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1989) (evidence of consciousness of guilt tends to disprove claim of self-defense). Moreover, as the trial court notes, there was absolutely no evidence... that [Johnson] subjectively believed that he was in danger of

14 being killed or seriously injured when he shot the two victims. Trial Court Opinion, 9/16/2013, at 8. Because Johnson s self-defense claim for the murder convictions fails, his challenge to the PIC conviction also fails. Johnson s self-defense claim for the PIC conviction does not warrant relief. 13 Accordingly, viewing all evidence in the light most favorable to the Commonwealth, the Commonwealth presented sufficient evidence to support the jury s verdict of guilty as to the first and third degree murder charges and the PIC charge, including the jury s conclusion that Johnson did not act in self-defense. Johnson s weight of the evidence claim is merely duplicative of his sufficiency of the evidence claim. Johnson preserved this claim in his postsentence motion. Nevertheless, we find this claim waived on appeal because he fails to fully develop it in his brief, and merely recites his sufficiency of the evidence claim verbatim as a challenge to the weight of the evidence Notably, the evidence showed Johnson armed himself with a gun before confronting the victims and actually threatened the Marshall family with it. This conduct demonstrates Johnson s intent to use the gun to harm or at least threaten the victims. Additionally, Johnson actually employed the gun to kill the victims. See Weston, supra, at See Footnotes 7 and 8, infra, explaining waiver of an issue on appeal for failure to develop the argument in a brief. See also Commonwealth v. Sullivan, 864 A.2d 1246, (Pa.Super.2004) (finding a waiver of evidentiary weight claims because appellant failed to distinguish those claims from evidentiary sufficiency challenges, and provided no legal argument or support in advance of his weight claims); Commonwealth v. Hodge, 658 A.2d 386, 389 (Pa.Super.1995) ( Unlike the challenge of legal sufficiency of the evidence, the complaint that the verdict was against the

15 Even if Johnson had articulated a proper challenge to the weight of the evidence, the claim provides no basis for relief. Johnson s disagreement with the reasonable inferences drawn by the jury is simply not a valid basis for obtaining relief on a challenge to the weight of the evidence. Scrutiny of whether a verdict is against the weight of the evidence is governed by the standard set forth by our Supreme Court in Commonwealth v. Champney, 574 Pa. 435, 443, 832 A.2d 403, 408 (2003): 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. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Id. at 443, 832 A.2d at 408; Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006), appeal denied, 592 Pa. 788, 927 A.2d 623 (2007). 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. Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.Super. weight of the evidence requires an assessment of the credibility of the testimony offered by the Commonwealth )

16 2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010). Generally, unless the evidence is so unreliable or contradictory as to make any verdict based thereon pure conjecture, these types of claims will be rejected on appellate review. Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007); Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004). Johnson essentially asks the Court to reassess the credibility of Regina and Rhonda Marshall s testimony. It is well settled, however, that this Court cannot substitute its judgment for that of the trier of fact. Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super.200). [I]t is for the fact-finder to make credibility determinations, and the finder of fact may believe all, part, or none of a witness s testimony. Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.Super.2008). Here, as discussed above, Regina and Rhonda Marshall testified that just minutes before the shooting, Johnson threatened to kill their family 15 and physically assaulted Regina. 16 Reginald Marshall intervened by placing Johnson in a bear hug. Id. Johnson then shot Reginald Marshall three times at close range and Daryl Blow multiple times from across the street. Id. The jury found this testimony credible and reasonably inferred from it that Johnson intended to kill Reginald Marshall and Daryl Blow, and did not act in self-defense. Both witnesses, as family members of the now-deceased Reginald Marshall, had a motive to testify against Johnson, which constituted reasons for the jury and the trial court to 15 N.T. 3/12/2013 at N.T. 3/12/2013 at ; 3/13/2013 at 22, 37-40,

17 question their credibility. The jury, however, found their testimony credible, which is evidenced by their verdicts. Credibility determinations are within the jury s province. For these reasons, the guilty verdicts in this case do not shock this Court s sense of justice. Accordingly, this Court finds no basis on which to conclude that the trial court palpably abused its discretion on the weight of the evidence claim. Judgment of Sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/23/