J-S44043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KAYREE REID,                               :
                                               :
                       Appellant               :      No. 1501 EDA 2017

             Appeal from the Judgment of Sentence April 24, 2017
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0000144-2016

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 21, 2018

        Kayree Reid (“Reid”) appeals from the judgment of sentence imposed

following his convictions of third-degree murder, carrying a firearm without a

license, person not to possess a firearm, possession of an instrument of crime,

and reckless endangerment of another person.1 We affirm.

        The trial court aptly summarized the facts as follows:

                  On November 10, 2015, at approximately 8:25 a.m.,
        [Reid] walked into the J&R Perez Grocery Store at 742 North 38 th
        Street to purchase cigarettes. Inside, Mary Johnson operated the
        store’s register as twin five-year-olds J.W. and Jo.W[.,] and their
        twelve[-]year old brother R.J.[,] browsed the aisles. Near the
        front    entrance    sat    the  decedent,    Maurice    McDonald
        [(“McDonald”)], looking at his cell phone.           Upon seeing
        [McDonald], [Reid] drew a 10 mm Glock pistol and shot him four
        times, killing him.

                 As [Reid] fired upon [McDonald], [McDonald] attempted
        to lunge away from the projectiles, and dove towards the children.
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1   18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 6105, 907(a), 2705.
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      As [McDonald] moved, [Reid] continued firing in the direction of
      both [McDonald] and the children. One projectile struck the
      backpack J.W. wore, while another struck a shelf, inches from her
      head.

Trial Court Opinion, 6/28/17, at 2.     McDonald was found unresponsive by

Philadelphia Police Officer Tanya Wright, and was pronounced dead upon

arrival to the hospital.

      On January 27, 2017, a jury convicted Reid of third-degree murder,

reckless endangerment of another person, carrying a firearm without a

license, and possessing an instrument of crime. He subsequently entered a

guilty plea to person not to possess a firearm. On April 24, 2017, the trial

court sentenced Reid to an aggregate term of seventeen to thirty-four years

in prison. Reid filed a timely Notice of Appeal, followed by a court-ordered

Pa.R.A.P. 1925 (b) Concise Statement of matters complained of on appeal.

      On appeal, Reid raises the following questions for our review:

      1. Is [Reid] entitled to an arrest of judgment on all charges[,]
         including murder in the third degree and weapons offenses[,]
         where the Commonwealth did not present sufficient evidence
         to sustain the verdict and where the Commonwealth did not
         prove beyond a reasonable doubt that [Reid] had failed to act
         in self-defense?

      2. Is [Reid] entitled to a new trial where[,] as here[,] the evidence
         was not supported by the greater weight of the evidence[,] but
         the verdict was based on speculation, conjecture and surmise?

      3. Is [Reid] entitled to a new trial as the result of court error when
         the [trial] court failed to give a manslaughter instruction
         regarding the manslaughter prong involving passion and
         provocation …[,] where the instruction would be supported by
         the evidence in the case?


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Brief for Appellant at 3 (some capitalization omitted).

      In his first claim, Reid asserts the evidence was insufficient to support

the murder conviction. Id. at 8. Reid argues that the Commonwealth did not

prove beyond a reasonable doubt that he had failed to act in self-defense

when he shot McDonald, who had previously made several attempts on Reid’s

life. Id. at 8-9.   Reid contends that McDonald made it very clear that he

intended to kill Reid at the first opportunity. Id. at 9. Reid argues that he

saw McDonald reaching toward his waistband and began firing to protect

himself. Id. at 10.

      Our standard of review is as follows:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether[,] 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 finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).


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      The Pennsylvania Crimes Code defines third-degree murder as any

killing with malice that is not first-or second-degree murder. See 18 Pa.C.S.A.

§ 2502(c); see also Commonwealth v. Baskerville, 681 A.2d 195, 199-

200 (Pa. Super. 1996).

      Malice consists of a “wickedness of disposition, hardness of heart,
      cruelty, recklessness of consequences, and a mind regardless of
      social duty, although a particular person may not be intended to
      be injured….” Malice may be found where the defendant
      consciously disregarded an unjustified and extremely high risk
      that his actions might cause serious bodily injury.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)

(citation and brackets omitted). “[M]alice can be inferred from the use of a

deadly weapon upon a vital part of the victim’s body.” Commonwealth v.

Thomas, 54 A.3d 332, 335-36 (Pa. 2012).

      Further,   a   defendant   has    no   burden   to   prove   self-defense.

Commonwealth v. Smith, 97 A.2d 782, 786 (Pa. Super. 2014). However,

“before the defense is properly in issue, there must be some evidence, from

whatever source, to justify such a finding.” Commonwealth v. Mouzon, 53

A.3d 738, 740 (Pa. 2012).

      [W]here an accused raises the defense of self-defense under 18
      Pa.C.S.A. § 505, the burden is on the Commonwealth to prove
      beyond a reasonable doubt that the [criminal act] was not a
      justifiable act of self-defense. The Commonwealth sustains its
      burden of disproving self[-]defense if it establishes at least one of
      the following: 1) the accused did not reasonably believe that he
      was in danger of death or serious bodily injury; or 2) the accused
      provoked the use of force; or 3) the accused had a duty to retreat
      and the retreat was possible with complete safety.




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Commonwealth v. Morgan, 625 A.2d 80, 82 (Pa. Super. 1993) (citations

omitted, emphasis in original). “If the Commonwealth establishes any one of

these three elements beyond a reasonable doubt, then the conviction is

insulated from a defense challenge to the sufficiency of the evidence where

self-protection is at issue.” Commonwealth v. Burns, 765 A.2d 1144, 1149

(Pa. Super. 2000).

      Here, Reid testified that he knew McDonald was out to get him, and that

McDonald had previously shot at him and sent him threatening text messages.

N.T., 1/25/17, at 127-28, 163. Reid purchased an illegal gun and kept it on

his person, with no safety on, locked, loaded, and ready to fire. Id. at 151,

154. On November 10, 2015, Reid entered the store, noticed McDonald, and

thought McDonald was reaching for a weapon. Id. at 107-08. Reid said that

he got scared, pulled out his gun, and started shooting. Id. at 108. Reid

stated that he did not see a gun in McDonald’s hand when he began shooting.

Id. at 160. Reid further testified that he fired four shots, immediately left the

store, and was in “panic mode.” Id. at 108. Reid acknowledges that he was

right by the door when he began shooting, and that his friend was waiting for

him, with the car running, right outside of the door. Id. at 162. When asked

why he did not get in the car and leave when he saw McDonald, Reid said that

he was shocked and his reaction was to reach for his gun. Id. at 163.

      Officer Davis, who worked the crime scene with her unit, testified that

they recovered three fired cartridge casings but never recovered McDonald’s


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cell phone or any weapons.           N.T., 1/24/17, at 95-105.   Dr. Sorokin, the

medical examiner, testified that McDonald had sustained four gunshot

wounds. N.T., 1/25/17, at 11-20. Dr. Sorokin stated that the first gunshot

penetrated McDonald’s right shoulder, and hit the right lung and pulmonary

artery, causing McDonald to bleed to death in a matter of minutes. 2 Id. at

11-12, 17, 21.        Dr. Sorokin testified that the second gunshot wound

penetrated McDonald’s back on the right side, causing internal bleeding, which

would be consistent with McDonald turning away.          Id. at 14-15, 18.    Dr.

Sorokin stated that the third gunshot wound perforated the back of

McDonald’s arm, and that the fourth gunshot wound penetrated the right

thigh. Id. at 19. Dr. Sorokin testified that the first gunshot wound would

have been immediately incapacitating, so that McDonald lost bodily functions

and died relatively quickly. Id. at 21.

       Viewing the evidence in the light most favorable to the Commonwealth,

as the verdict winner, there is sufficient evidence to establish that Reid acted

with malice in shooting and killing McDonald.          See Commonwealth v.

Houser, 18 A.3d 1128, 1135 (Pa. 2011) (concluding that appellant acted with

malice where he fired multiple shots at a police officer). Further, the evidence

established that Reid was not acting in self-defense, because he failed to



____________________________________________


2 A perforating gunshot wound enters and exits the body, whereas a
penetrating gunshot wound enters and remains lodged in the body. See N.T.,
1/25/17, at 11.

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retreat when he could have done so without danger of bodily injury. See

Commonwealth v. McClendon, 874 A.2d 1223, 1233 (Pa. Super. 2005)

(concluding that defendant did not act in self-defense when he had the duty

to retreat and could have done so safely but did not).

       In his Statement of Questions, Reid also challenges the sufficiency of

the evidence to prove the weapons convictions.       Brief for Appellant at 3.

However, because the Argument section of his brief fails to set forth any

argument related to this claim, it is waived on appeal. See Pa.R.A.P. 2119(a)

(stating that the argument section shall be divided into as many parts as there

are questions to be argued).3

       Reid next argues that the verdict was against the weight of evidence,

and thus he should be granted a new trial. Brief for Appellant at 11. Reid

asserts that the evidence demonstrates that McDonald attempted to kill him

on multiple occasions, and that McDonald intended to do so again. Id. Reid

argues that because he believed McDonald was going to kill him at that point,

he acted in self-defense. Id. Reid contends that the weight of evidence fails

to establish, beyond a reasonable doubt, that Reid did not act in self-defense.

Id.


____________________________________________


3 Even if Reid had preserved the firearm sufficiency claim, we would conclude
that it is without merit based on the sound reasoning of the trial court. See
Trial Court Opinion, 6/28/17, at 10-11; see also N.T., 1/25/17, at 151, 155,
156 (wherein Reid stated that he purchased an illegal semi-automatic gun
without a license to have one, and that on the day of the shooting he kept
that gun with him, with no safety on, locked, loaded, and ready to shoot).

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       Initially, “[f]ailure to challenge the weight of the evidence presented at

trial in an oral or written motion prior to sentencing or in a post-sentence

motion will result in waiver of the claim.” Commonwealth v. Bryant, 57

A.3d 191, 196 (Pa. Super. 2012); see also Pa.R.Crim.P. 607. Here, Reid

failed to properly preserve his weight of the evidence challenge. See Bryant,

57 A.3d at 176.4 Thus, it is waived.5

       In his third claim, Reid argues that he is entitled to a new trial because

the trial court declined to instruct the jury on voluntary manslaughter due to

passion and provocation.         Brief for Appellant at 11-12.   Reid asserts that

McDonald had shot at him previously, and this provoked him into shooting

McDonald. Id. at 12, 13.

       “A trial court’s denial of a request for a jury instruction is disturbed on

appeal only if there was an abuse of discretion or an error of law.”

Commonwealth v. Johnson, 107 A.3d 52, 89 (Pa. 2014) (internal citation



____________________________________________


4 The fact that Reid raises a weight claim in his Rule 1925(b) Concise
Statement does not preserve the claim on appeal. See Commonwealth v.
Thompson, 93 A.3d 478, 490-91 (Pa. Super. 2014) (stating that a weight of
evidence claim must be preserved either in a written or oral pre-sentence
motion, or in a post-sentence motion).

5 Even if the issue was preserved for our consideration, it is without merit
based on the sound reasoning advanced by the trial court. See Trial Court
Opinion, 6/28/17, at 11-13; see also Commonwealth v. Blakeney, 946
A.2d 645, 652 (Pa. 2008) (stating that “[a] verdict is against the weight of
evidence only when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice.”) (citation and quotation marks omitted).


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omitted). “[A] trial court shall only instruct on an offense where the offense

has been made an issue in the case and where the trial evidence reasonably

would support such a verdict.” Commonwealth v. Browdie, 671 A.2d 668,

674 (Pa. 1994).

      The Crimes Code defines voluntary manslaughter, in relevant part, as

follows:

      (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.

18 Pa.C.S.A. § 2503(a); see also Browdie, 671 A.2d at 671.

      In order to successfully argue heat of passion, a defendant must
      prove (1) provocation on the part of the victim, (2) that a
      reasonable man who was confronted with the provoking events
      would become impassioned to the extent that his mind was
      incapable of cool reflection, and (3) that the defendant did not
      have sufficient cooling off time between the provocation and the
      killing.

Commonwealth v. Mason, 130 A.3d 601, 628 (Pa. 2015) (citation and

quotation marks omitted).

      Here, Reid testified that the first attempted shooting by McDonald was

on October 16, 2015. N.T., 1/25/17, at 94-95. Reid said that the next day,

McDonald sent him a threatening text message and, a week and a half later,

shot at Reid again. Id. at 102-03, 127. Further, Reid claimed that he did not

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have any direct contact with McDonald leading up to the incident in question,

and that any communication was through a mutual acquaintance who was

attempting to resolve the dispute.     Id. at 100-01.   Reid testified that he

bought the gun after McDonald shot at him, and that he kept it on his person,

without a safety, locked, loaded, and ready to fire. Id. at 152-156. Reid

testified that he did not know McDonald would be in the store. Id. at 109.

Reid admitted that when he walked in the store and saw McDonald, he did not

see McDonald with a firearm. Id. at 160. Reid stated that his reaction was

to start shooting. Id. at 163.

      The evidence, viewed in a light most favorable to the Commonwealth,

clearly shows that Reid had sufficient time between provocation and the

shooting to cool off.     The evidence further shows that Reid was not

immediately provoked.      Therefore, jury instruction on heat of passion

provocation for a charge of voluntary manslaughter is inapplicable.       See

Commonwealth v. Kim, 888 A.2d 847, 853 (Pa. Super. 2005) (stating that

a voluntary manslaughter instruction due to passion and provocation was not

warranted where appellant had an adequate cooling off period prior to exiting

the building, retrieving a gun from his vehicle, and returning and shooting the

manager).

      Based on the foregoing reasons, we affirm Reid’s judgment of sentence.

      Judgment of sentence affirmed. Application For Correction of Original

Record granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/18




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