J. S45034/11
2011 PA Super 218
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMY R. KENDRICKS,
Appellant
No. 1812 MDA 2010
Appeal from the Judgment of Sentence entered July 8, 2010, in the
Court of Common Pleas of Luzerne County, Criminal
Division, at Nos. CP-40-CR-0004155-2008.
BEFORE: DONOHUE, OLSON and STRASSBURGER*, JJ.
OPINION BY: STRASSBURGER, J.
Filed: October 12, 2011
Jeremy R. Kendricks, Appellant, appeals from the judgment of
sentence following his conviction of murder in the third degree.1 We affirm.
On September 20, 2008, Appellant was arrested and charged with
criminal homicide for his involvement in the shooting death of Kirk Lipscomb
(victim) at the Bull Run Tavern in Plymouth Borough, Luzerne County.
Appellant filed pre-trial motions which were heard on April 6 and 8, 2010.
On April 16, 2010, the trial court issued findings of fact and conclusions of
law disposing of Appellant’s pre-trial motions.
Trial commenced on May 3, 2010.
During its case-in-chief, the
Commonwealth called four witnesses, David Green (Green), Sherman
1
18 Pa.C.S. § 2502(c).
* Retired Senior Judge assigned to Superior Court.
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Anderson (S. Anderson), Victor Anderson (V. Anderson)2, and Neil McMahon
(McMahon), all of whom were eyewitnesses to the shooting. On May 7,
2010, following a jury trial, Appellant was convicted of murder in the third
degree. On July 8, 2010, Appellant was sentenced to a term of not less than
240 months nor more than 480 months’ incarceration.
On July 19, 2010,
Appellant filed post-sentence motions, which were supplemented on August
24, 2010. These motions were denied by the trial court on October 4, 2010.
This timely appeal followed.3
Appellant raises five issues on appeal. We have re-ordered Appellant’s
claims for ease of disposition.
1. Whether the trial court improperly denied [Appellant’s]
Motion in Limine to preclude the admission of two autopsy
photographs of the [victim] in that the photographs were
inflammatory and their evidentiary value was far
outweighed by their prejudicial [e]ffect?
2. Whether the trial court improperly permitted the
Commonwealth to introduce evidence of [Green] and [S.
Anderson’s] out-of-court identification of [Appellant]
through the use of a photo line[-]up which [was] unduly
suggestive and presented a substantial likelihood of
misidentification?
3. Whether
the
trial
court
improperly
permitted
Commonwealth witnesses [McMahon] and [V. Anderson] to
make in-court identification of [Appellant] when the incourt identification has no independent origin sufficiently
distinguishable from the unlawful photo line[-]up that was
presented to the witness[es] prior to the trial?
2
S. Anderson and V. Anderson are not related. N.T., 5/3/2010, at 305.
3
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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4. Whether the trial court erred in failing to charge/instruct
the jury on the “unreasonable belief self-defense” section
of the Standard Voluntary Manslaughter Instruction?
5. Whether the verdict was against the weight of the
evidence and/or was insufficient to sustain the verdict of
guilt?
Appellant’s Brief at 7.
The first three issues challenge the trial court’s admission of certain
evidence at trial. Questions of the admission and exclusion of evidence are
within the sound discretion of the trial court and will not be reversed on
appeal absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d
638, 641 (Pa. Super. 2003).
Appellant claims that the trial court erred in denying Appellant’s
motion in limine to preclude admission at trial of two color photographs
taken during the victim’s autopsy. Appellant’s Brief at 19.
When considering the admissibility of photographs of a homicide
victim, which by their very nature can be unpleasant, disturbing, and even
brutal, the trial court must engage in a two-step analysis:
First a [trial] court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has relevance and
can assist the jury's understanding of the facts. If the
photograph is inflammatory, the trial court must decide whether
or not the photographs are of such essential evidentiary value
that their need clearly outweighs the likelihood of inflaming the
minds and passions of the jurors.
Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation
omitted).
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The color photographs at issue depict two separate gunshot wounds to
the body of the victim.
The first photograph shows gunpowder stippling
around the entry of the first of two gunshot wounds; the second photograph
shows the angle of a second wound to the victim’s chest.
In both
photographs, the body has been cleaned of blood, dirt or tissue. Instantly,
the trial court determined the autopsy photographs were not inflammatory
and had probative value because each would aid the jury’s understanding of
the testimony of the forensic pathologist called at trial. Trial Court Opinion,
1/31/2011, at 7. In so holding, the trial court noted it was “satisfied that
the photographs have probative value; that they are not inflammatory as
such; and that the probative value would be greatly diminished were the
photographs to be allowed merely in black and white[.]” N.T., 4/16/2010, at
5. Based on our review of the photographs, we agree.
The photographs at issue are relevant to enhance the jury’s
understanding of the location of the victim’s injuries and the stippling effect
on the victim's chest which shows that the victim was shot at close range.
There is no suggestion that the photographs were unnecessarily gruesome
or inflammatory. Thus, the trial court did not err in determining that the
probative value of introducing this evidence to demonstrate that the victim
was shot at close-range outweighed the potential prejudicial effect of the
photographs. See Commonwealth v. Begley, 780 A.2d 605, 622–623 (Pa.
2001) (quoting Commonwealth v. Jacobs, 639 A.2d 786, 789 (Pa. 1994))
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(“Even where the body's condition can be described through testimony from
a medical examiner, such testimony does not obviate the admissibility of
photographs”); see also Commonwealth v. Tharp, 830 A.2d 519, 531–32
(Pa. 2003) (introduction of photographs was proper even though testimonial
evidence to demonstrate injuries was available).
Appellant next contends that the trial court erred in allowing the
Commonwealth to introduce evidence of the out-of-court identification of
Appellant made by Green and S. Anderson. Specifically, Appellant contends
that a photo array presented separately to Green and to S. Anderson was
suggestive because “the individual photos were not similar and clearly
suggested to the witnesses which individual to identify.” Appellant’s Brief at
11. Moreover, Appellant claims that all subsequent identifications stemming
from the array are tainted.
Our Supreme Court has instructed that a photographic identification is
unduly
suggestive
if,
under
the
totality
of
the
circumstances,
the
identification procedure creates a substantial likelihood of misidentification.
Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004) (citation
omitted).
Whether an out-of-court identification is to be suppressed as
unreliable, and therefore violative of due process, is determined
from the totality of the circumstances. We will not suppress
such identification unless the facts demonstrate that the
identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification.
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Commonwealth v. Burton, 770 A.2d 771, 782 (Pa. Super. 2001) (citations
and quotations omitted). The variance between the photos in an array does
not necessarily establish grounds for suppression of a victim’s identification.
Id. “Photographs used in line-ups are not unduly suggestive if the suspect’s
picture does not stand out more than those of the others, and the people
depicted all exhibit similar facial characteristics.” Commonwealth v.
Fisher, 769 A.2d 1116, 1126 (Pa. 2001). “[E]ach person in the array does
not have to be identical in appearance.” Burton, 770 A.2d at 782. The
photographs in the array should all be the same size and should be shot
against similar backgrounds. Commonwealth v. Thomas, 575 A.2d 921
(Pa. Super. 1990).
Instantly, following the death of the victim, officers from the Plymouth
Township Police Department conducted interviews of patrons in the tavern
when the incident occurred, including Green and S. Anderson.
After
Appellant was identified as a suspect, an eight photograph array was
generated and shown to the four eyewitnesses.4 N.T., 5/3/2010, at 86.
Green testified at trial that he told officers that he was in the tavern
the night the victim was shot. Id. at 368. He said that he saw Appellant in
the bar that evening and had seen Appellant there before. Id. at 367-368.
4
Plymouth Township Police Officer Jeffery Fox testified that the photo array
was produced using the Pennsylvania Justice Network (J-NET) computer
service, which generated seven random photographs from a state-wide
database based on descriptive information of Appellant entered into the
program by Officer Fox. N.T., 5/3/2010, at 85-86.
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Green further testified that he, Appellant, and the victim were involved in a
physical altercation, and that during this incident Appellant fired a small
revolver at Green and the victim. Id. at 371, 376-378. Green stated that he
was close enough to the situation that he was able to dive on the gun once
Appellant dropped it and was also shot by Appellant during the scuffle over
the dropped firearm. Id. at 378. Green indicated that he looked Appellant
“right in the face” during the incident and was one hundred percent positive
Appellant was the gunman. Id. at 378-379.
During the evening of
September 20, 2008, Green was shown the photo array by Officer Fox and
identified Appellant as the individual who shot both him and the victim. Id.
at 384-386, 388.
Also on September 20, 2008, Pennsylvania State Trooper Lisa Brogan
showed S. Anderson the photo array generated by J-NET. Id. at 128-129.
At trial, S. Anderson testified that he was present in the tavern on the night
in question; he had seen Appellant there in the past; and, he intervened
directly in the confrontation between Appellant and the victim. Id. at 163,
159-160, 168-171. He further testified that he observed Appellant twice fire
a gun during the confrontation. Id. at 171. When Officer Brogan presented
him with the photo array, S. Anderson also identified Appellant as the
shooter. Id. at 182-183.
The trial court concluded that both Green and S. Anderson had ample
opportunity to observe Appellant at the time of the shooting, that the photo
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array generated by the J-NET program was not itself unduly suggestive, nor
did it present substantial likelihood for misidentification, and that no
evidence was present to suggest the manner in which the array was
administered to the witnesses was unduly suggestive. Trial Court Findings
of Fact, 4/16/2010, at 6 (unnumbered).
Likewise,
photographs
our
used
review
in
the
Commonwealth Exhibit 1.
of
the
array
certified
were
not
record
unduly
reflects
that
suggestive.
the
See
The array at issue here contains eight
photographs of men who appear to be of the same race as Appellant, all
approximately
the
same
age,
with
similar
complexions
and
facial
characteristics. The photographs are arranged in two rows of four pictures
each, and Appellant’s picture appears in the number 6 position. The
photographs were all the same size and appear to have been taken against
similar backgrounds.
Regarding Appellant’s argument that he is the only
individual in the array with light-colored eyes or color on his shirt, we note
that the photo array was administered to Green and S. Anderson as a black
and white copy. N.T., 4/6/2010, at 265, 273 and N.T., 5/3/2010, at 132.
Moreover, there is nothing in the record that supports Appellant’s contention
that the procedure employed by the officers administering the photo array
was inappropriate.
Thus, we conclude that the array supports the trial
court’s conclusion that the array is not unduly suggestive so as to create a
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likelihood of misidentification. Therefore, Appellant has failed to establish
that the trial court abused its discretion in this regard.
Appellant
claims
that
the
trial
court
erred
in
allowing
two
Commonwealth witnesses, McMahon and V. Anderson, to make in-court
identifications of Appellant.
Appellant argues that the witnesses’ in-court
identifications were tainted by a prior unlawful identification. Appellant’s
Brief at 16.
On October 14, 2008 Officer Fox showed McMahon the J-NET photo
array containing Appellant’s photograph.
Appellant as the shooter.
McMahon positively identified
On February 27, 2009 and again on March 13,
2009, V. Anderson was shown a number of photo arrays, including one
containing Appellant’s photograph. V. Anderson also identified Appellant as
the man who shot the victim. In his motion in limine Appellant challenged
the administration of the photo array to McMahon and V. Anderson, arguing
that both identifications were invalid because Appellant’s counsel was not
present at the time identification was made.
The trial court subsequently
denied admission of that evidence at trial as Appellant was represented by
counsel at the time the photo arrays were shown to McMahon and V.
Anderson, but Appellant’s counsel was not present when the photo arrays
were administered.
However, the trial court permitted McMahon and V.
Anderson to make an in-court identification of Appellant, if asked to do so at
trial finding “that the Commonwealth has established by clear and
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convincing evidence that such identification had an independent origin
sufficiently distinguishable from the unlawful photo lineup procedure.” Trial
Court Findings of Fact, 4/16/2010, at 3, 7 ¶¶ 12-15. (unnumbered).
We
agree.
McMahon is the owner of the Bull Run Tavern. N.T., 5/3/2010, at 234.
At trial McMahon testified that he was behind the bar assisting the bartender
on the night of the shooting. Id. at 235. He described the bar as well-lit.
Id. at 240-241. He testified that he was approximately 16 feet away from
Appellant when he heard shots fired, and identified Appellant as having a
silver revolver in his hand immediately thereafter. Id. at 237-239, 378. He
testified that the entire incident lasted between 15 and 20 seconds, but that
Appellant looked at him after firing the shots. Id. at 272-275.
McMahon
acknowledged speaking with law enforcement on October 13, 2010, wherein
he stated he was “100 percent sure” Appellant was the shooter because of
the unique light color of his eyes. Id. at 255.
He made an in-court
identification of Appellant. Id. at 237. McMahon testified repeatedly that he
was able to identify Appellant based on the shape and color of his eyes. Id.
at 277-278.
V. Anderson testified that he was present at the tavern on September
20, 2008. Id. at 306. He testified that he was approximately seven to eight
feet away from the verbal altercation between the victim and Appellant. Id.
at 311-312. His cousin alerted him to the fact that Appellant had a gun. Id.
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He further testified that Appellant was the man who shot the victim, that
Appellant dropped the gun after firing the initial shots, and that another
patron in the bar shot Green during the struggle over the dropped firearm.
Id. at 313-314.
V. Anderson also testified that he encountered Appellant
and Appellant’s associate, Michael Madera (Madera), after the incident in
January of 2009 while all three men were incarcerated at the Luzerne
County Correctional Facility. Id. at 317.
V. Anderson stated that he
recognized Appellant as the man who shot the victim, and Madera as the
individual who shot Green. Id.
He further testified that he was twice
assaulted by Madera while in jail after telling a mutual acquaintance that he
observed Appellant and Madera commit the shooting at the Bull Run Tavern.
Id. at 317-320.
On February 29, 2009, V. Anderson made a written
statement to police implicating Appellant as the gunman. Id. at 331.
At
trial, V. Anderson made an in-court identification of Appellant. Id. at 312.
When an out-of-court identification is alleged to be tainted, an in-court
identification may still stand if, considering the totality of the circumstances,
the identification “had an origin sufficiently distinguishable to be purged of
the primary taint.” Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa.
1996); see also Commonwealth v. James, 486 A.2d 376 (Pa. 1985). The
factors a court should consider in determining whether there was an
independent basis for the identification include: (1) the opportunity of the
witness to view the criminal at the time of the crime; (2) the witness’s
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degree of attention; (3) the accuracy of the witness’s prior description of the
criminal; (4) the level of certainty demonstrated by the witness during the
confrontation; and (5) the length of time between the crime and the
confrontation. Id. at 380.
Here, both McMahon and V. Anderson had sufficient opportunity to
observe Appellant during the incident.
Although, by all accounts, the
shooting took place over a matter of seconds, each man testified that a
verbal altercation preceded the shooting, drawing the men’s attention to
Appellant. Further, McMahon expressed 100 percent certainty that Appellant
was the gunman based on Appellant’s unique eye color and shape. Likewise,
V. Anderson testified that he recognized Appellant while incarcerated months
after the incident and was assaulted once he revealed Appellant’s connection
to the shooting at the tavern. Based on the totality of the circumstances we
hold that there was a basis independent from the tainted pre-trial photo
array that would support admission of McMahon and V. Anderson’s in-court
identification. Therefore, the trial court did not err in this regard.
Appellant next claims that the trial court erred in failing to instruct the
jury on the “unreasonable belief self-defense” section of the Pennsylvania
Suggested Standard Criminal Jury Instruction for Voluntary Manslaughter.
Appellant’s Brief at 7; PA-JICRIM 15.2503A (2006).5 “In reviewing a
5
The crime of voluntary manslaughter is defined as follows:
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challenge to the trial court’s refusal to give a specific jury instruction, it is
the function of this Court to determine whether the record supports the trial
court’s decision.” Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.
Super. 2006). “It has long been the rule in this Commonwealth that a trial
court should not instruct the jury on legal principles which have no
application to the facts presented at trial.” Commonwealth v. McCloskey,
656 A.2d 1369, 1374 (Pa. Super. 1995).
The Suggested Standard Jury Instruction for Voluntary Manslaughter
provides that paragraph five, related to unreasonable belief self-defense, is
“to be given only if the facts of record support” such an inference.
JICRIM 15.2503A, (2006). Paragraph five provides,
(a) General rule.--A person who kills an individual without
lawful justification commits voluntary manslaughter if at the time
of the killing he is acting under a sudden and intense passion
resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he
negligently or accidentally causes the death of the
individual killed.
(b) Unreasonable belief killing justifiable.--A person who
intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the
circumstances to be such that, if they existed, would justify the
killing under Chapter 5 of this title, but his belief is
unreasonable.
18 Pa.C.S. § 2503.
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5. The reducing circumstance of a defendant acting under an
unreasonable belief that the circumstances of the killing were
justified applies where:
a. the defendant actually believed that [he] [she] [a
third party] was in immediate danger of death or
serious bodily injury [or kidnapping or sexual
intercourse compelled by force or threat] from
[name of alleged victim] at the time [he] [she] used
deadly force, but [his] [her] belief was unreasonable
in light of the facts as they appeared to [him] [her]
at the time;
b. the defendant did not provoke the use of force by
the alleged victim by engaging in conduct that
showed it was [his] [her] intent to cause death or
serious bodily injury to the alleged victim; and,
c. the defendant did not violate [his] [her] duty to
retreat from the place, surrender possession of
something, or comply with a lawful demand, as I
explained those terms when I described to you the
justification defense.
Therefore, you can find malice and murder only if the
Commonwealth proves beyond a reasonable doubt one of the
following elements:
a. the defendant did not actually believe that [he]
[she] [a third party] was in immediate danger of
death or serious bodily injury [or kidnapping or
sexual intercourse compelled by force or threat] from
[name of alleged victim] at the time [he] [she] used
deadly force. Note that the unreasonableness of the
defendant's belief is not the issue here, as it was
when I explained justification to you. The question is
whether the defendant actually believed such an
immediate danger existed at the time [he] [she]
used deadly force, and to prove malice through this
element, the Commonwealth must prove that the
defendant did not actually hold such a belief; or,
b. the defendant provoked the use of force by the
alleged victim by engaging in conduct that showed it
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was [his] [her] intent to cause death or serious
bodily injury to the alleged victim; or,
c. the defendant could have avoided the use of
deadly force by [retreating from the place]
[surrendering
possession
of
something]
[or]
[complying with a lawful demand], as I previously
defined [this] [those] concept[s] for you when I
discussed the defense of justification.]
PA-JICRIM 15.2503A, ¶5 (2006).
Instantly, Appellant argued that the jury could infer that he acted in
self-defense based upon evidence presented that Appellant was surrounded
by several men, possibly armed, who closed in on him and attacked him.
N.T., 5/3/2010, at 918.
The trial court rejected this contention and
determined that inclusion of paragraph five into its jury instructions was
unwarranted based on the facts presented at trial. Trial Court Opinion,
1/31/2011, at 9. We agree.
All four of the Commonwealth eyewitnesses place the firearm in the
hands of Appellant. Moreover, the favorable defense witnesses testified that
they did not witness the shooting, but merely saw a physical altercation
between Appellant, victim, and Green, during which shots were fired. Id. at
770, 776, 804. The defense witnesses do not allege that victim, Green, or
anyone else involved in the physical altercation had a weapon of any sort.
Based on our review of the testimony, even when viewed in the light most
favorable to Appellant, Appellant was not entitled to an instruction on
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unreasonable belief of self-defense. Thus, we conclude that the trial court
did not err in denying the instruction.
We now turn to Appellant’s claim that the evidence was insufficient to
sustain his conviction of third-degree murder and that the verdict was
against the weight of the evidence. In Commonwealth v. Widmer, 744
A.2d 745 (Pa. 2000), our Supreme Court discussed the standards of review
applicable to both of Appellant’s arguments:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim the court is required to view the evidence in the
light most favorable to the verdict winner giving the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. . . . An allegation that
the verdict is against the weight of the evidence is addressed to
the discretion of the trial court.
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. . . .
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. 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
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reviewing a trial court's determination that the verdict is against
the weight of the evidence.
Id. at 751-52 (footnote and citations omitted).
Our Crimes Code defines third-degree murder as follows:
[T]hird-degree murder is a killing done with legal malice but
without the specific intent to kill required in first-degree murder.
Malice consists of a wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of
social duty. Malice exists where the principal acts in gross
deviation from the standard of reasonable care, failing to
perceive that such actions might create a substantial and
unjustifiable risk of death or serious bodily injury.
Commonwealth v. Kellam, 719 A.2d 792, 797 (Pa. Super. 1998) (citations
and quotation marks omitted). Section 2301 of the Crimes Code defines
“serious bodily injury” as “[b]odily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or organ.” 18 Pa.C.S. §
2301.
Appellant argues that the evidence presented by the Commonwealth
was unreliable and contradictory, and, therefore, his conviction for murder in
the third degree was “based on pure conjecture.” Appellant’s brief at 22. In
support
of
his
argument,
Appellant
claims
that
the
testimony
of
Commonwealth’s expert witness that all four bullets recovered from victim
and Green were fired from the same firearm is contradicted by testimony
that multiple individuals in the bar possessed, and fired, weapons that
evening. Id. Further, Appellant contends that the testimony of V. Anderson
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and Green regarding the identity of the man who shot Green was
contradictory. Id.
Viewing
the
evidence
in
the
light
most
favorable
to
the
Commonwealth, as we must, it is clear that Appellant engaged in a
confrontation with the victim and Green. As discussed at length above, four
eyewitnesses testified at trial that Appellant pulled out a revolver during that
confrontation and fired it at the victim. N.T., 5/3/2010, at 170-172, 235239, 312-131 371, and 377-379.
Moreover, we note that even if other
tavern patrons possessed firearms, as Appellant alleges, that evidence does
not negate the testimony that Appellant fired the fatal shots or acted in
gross disregard of the fact that his actions might create a substantial risk of
death or serious bodily injury. We conclude that the evidence presented is
sufficient to support Appellant’s conviction.
With regard to his challenge to the weight of the evidence, Appellant
reiterates essentially the same arguments he presented in his challenge to
the sufficiency of the evidence. The trial court found that “[t]he variances in
testimony do not shock this [c]ourt’s conscience, but rather illustrate typical
inconsistencies in eyewitness testimony.
The testimony presented was
competent proof in which a jury could find [Appellant] guilty of the crime of
Murder in the Third degree.” Trial Court Opinion, 1/31/2011, at 12.
Accordingly, noting our discussion of the sufficiency of the evidence, supra,
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we conclude that the trial court did not abuse its discretion in denying
Appellant’s request for a new trial based upon the weight of the evidence.
Judgment of sentence affirmed. Jurisdiction relinquished.
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