MEMORANDUM BY MUSMANNO, J.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 11, 2018 in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012064-2015 BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Mychal Cassel ("Cassel") appeals from the judgment of sentence imposed after a jury convicted him of second-degree murder, robbery, carrying firearms on public streets in Philadelphia, possession of an instrument of crime, and criminal conspiracy. We affirm.
See 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(ii), 6108, 907(a), 903(a)(1).
In its Opinion, the trial court set forth the relevant procedural and factual history underlying this appeal, which we incorporate as though fully set forth herein. See Trial Court Opinion, 8/6/18, at 1-5. In sum, on January 26, 2014, Cassel and two co-conspirators, Jerome Johnson ("Johnson") and Shafik Lamback ("Lamback"), robbed a drug dealer, Marquise Kemp ("Kemp"), during a drug transaction in a Chinese store in Philadelphia. Johnson pointed a handgun at Kemp during the robbery, and Cassel, who was armed with a concealed, unlicensed handgun, stood next to Johnson. Shortly after the three co-conspirators fled the store with Kemp's valuables, Kemp's associate, Kyleaf Gordon ("Gordon"), who was standing outside on the sidewalk, fired a handgun in the direction of the co-conspirators in retaliation. Cassel returned fire, striking Gordon in the back with a bullet and killing him.
In this timely appeal, Cassel presents the following issue for our review: "Whether [Cassel's] conviction should be overturned for lack of sufficient evidence to support it beyond a reasonable doubt?" Brief for Appellant at 6.
Initially, we note that,
when challenging the sufficiency of the evidence on appeal, the [a]ppellant's [court-ordered Rule 1925(b) concise] statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal. Such specificity is of particular importance in cases where, as here, the [a]ppellant was convicted of multiple crimes[,] each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.
Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009) (citations and quotation marks omitted);
see also Pa.R.A.P. 1925(b)(4)(ii) (requiring that a concise statement "shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge."). If the appellant does not specify such elements, the sufficiency claim is deemed waived.
Gibbs , 981 A.2d at 281.
Here, Cassel, in his court-ordered Concise Statement, raised a vague challenge to the sufficiency of the evidence, in which he failed to specify the element or elements, or even the specific crimes, for which he contends the evidence was insufficient. Based upon this deficiency, we could find that he waived his sole issue on appeal. See id. (holding that the appellant's sufficiency challenge was waived where he failed to specify in his concise statement which convictions or the elements of the crimes that he was challenging). Nevertheless, we decline to deem Cassel's claim waived, as the trial court addressed it in its Rule 1925(a) Opinion.
Specifically, Cassel alleged only the following: "The evidence against [] Cassel is not sufficient enough to convict him." Concise Statement, 8/1/18.
In reviewing a challenge to the sufficiency of the evidence, our standard of review
requires that we evaluate the record in the light most favorable to the 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 of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. ... Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the [] convictions will be upheld.
Commonwealth v. Sebolka , 205 A.3d 329 at **12-13 (Pa. Super. 2019) (citation and paragraph break omitted). 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, 40 (Pa. Super. 2014) (citation omitted).
We additionally note that where, as here,
there is a claim of self-defense, the Commonwealth has the burden to prove beyond a reasonable doubt that the killing was not committed in self-defense. In order to disprove self-defense, the Commonwealth must prove beyond a reasonable doubt one of the following elements: (1) that the defendant did not reasonably believe it was necessary to kill in order to protect himself against death or serious bodily harm, or that the defendant used more force than was necessary to save himself from death, great bodily harm, or the commission of a felony; (2) that the defendant provoked the use of force; or (3) that the defendant had a duty to retreat and that retreat was possible with complete safety.
See 18 Pa.C.S.A. § 505(b)(2)[.] 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, 1148-49 (Pa. Super. 2000) (some citations omitted).
Here, Cassel contends that the Commonwealth failed to present sufficient evidence to convict him of any of the charged offenses, where he (1) did not know that Johnson was going to rob Kemp during the drug transaction, and there was thus no conspiracy; and (2) was in fear for his life, where Gordon had initially fired a gun in his direction, and Cassel only returned fire in self-defense. Brief for Appellant at 9.
In its Opinion, the trial court defined the offenses of which Cassel was convicted, addressed his sufficiency challenge, and determined that it lacks merit. See Trial Court Opinion, 8/6/18, at 10-14. As the trial court's cogent rationale is supported by the record and the law, we incorporate it as though set forth in full herein. See id.
Contrary to Cassel's claim, we likewise conclude that there was ample evidence for the jury to find him guilty of all of the charged crimes beyond a reasonable doubt. The evidence, when properly viewed in the light most favorable to the Commonwealth as verdict winner, established that
• Cassel and his co-conspirators approached Kemp, inside the Chinese store, with the intent to rob him;
• Johnson, with the assistance of Cassel and Lamback, pointed a gun at Kemp and robbed him of his valuables;
• Cassel brought a handgun to the robbery and actively participated in it by surrounding Kemp;
• Cassel, Lamback, and Johnson divided the proceeds of the robbery; and
• Cassel, Lamback, and Johnson participated in a similar crime the next day, wherein Cassel and Johnson were armed with the same handguns they had used in the robbery of Kemp.
Moreover, the trial court properly determined that the evidence was sufficient to disprove Cassel's claim of self-defense beyond a reasonable doubt, based on evidence that Cassel, by his involvement in an armed robbery of Kemp and Gordon, "provoked" the encounter that led to Gordon's death.
See Commonwealth v. Mouzon ,
53 A.3d 738, 740-41 (Pa. 2012);
Commonwealth v. Johnson ,
331 A.2d 473, 476 (Pa. 1975) (stating that "a valid claim of self-defense cannot be made out by the killer when the killer introduces a weapon into the encounter without provocation. Such introduction operates to deny the killer's assertion that he was free from fault in provoking the difficulty."). Under these circumstances, Cassel's use of deadly force was not justified.
See 18 Pa.C.S.A. § 505(b)(2)(i)-(ii). Accordingly, Cassel's sufficiency challenge fails, and we affirm his judgment of sentence.
It was not necessary, as Cassel implies, for the Commonwealth to prove that Cassel personally robbed Kemp of his valuables. See Commonwealth v. Galindes , 786 A.2d 1004, 1011 (Pa. Super. 2001).
In this regard, see pages 5-9 of the trial court's August 6, 2018 Opinion. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/1/19
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