Com. v. Hamilton, Z.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : ZAKEE HAMILTON, : : Appellant : No. 2729 EDA 2012

Appeal from the Judgment of Sentence August 28, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0008988-2010

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 06, 2014

Appellant, Zakee Hamilton, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following a jury trial and his convictions for first-degree murder,1 aggravated assault,2 attempted murder,3 possessing instruments of crime,4 carrying a firearm in

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2502(a). 2 18 Pa.C.S. § 2702(a). 3 18 Pa.C.S. § 901(a). 4 18 Pa.C.S. § 907(a).

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public in Philadelphia,5 and carrying a firearm without a license.6 Appellant challenges the sufficiency of evidence for first-degree murder and the weight of the evidence for all of his convictions. We affirm.

We state the facts and procedural history as follows.7 During the early morning hours of February 21, 2010, members of a vehicle club congregated at a bar they had reserved to celebrate a birthday. When they arrived at the bar, the club members discovered that the bar was overbooked. As the night progressed, different vehicle club members and non-club members began arriving at the bar. The club members protested to the bar owner about the overbooking and lack of security. The bar owner retorted by informing them that if they wanted security, they should provide it. Two club members subsequently stationed themselves at one of the doors and began checking IDs and patting non-club members down for weapons.

Outside the bar, and later in the evening, a fight erupted between multiple women. N.T., 8/7/12, at 65, 68. During the fracas, two men intervened to break up the fight. Id. at 146. After the men separated the women, Appellant punched one of the women. Id. During the ensuing

5 18 Pa.C.S. § 6108. 6 18 Pa.C.S. § 6106. 7 We state the facts in the light most favorable to the Commonwealth, as the verdict winner. Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations omitted). Although multiple witnesses consistently testified to the basic facts, for ease of reference, we cite only to one or a few sources.

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altercation, Appellant pulled out a revolver and raised it at two different men not the men that intervened. N.T., 8/8/12, at 259. The two men immediately ran in two different directions, and Appellant shot both. Id. at 260, N.T., 8/9/12, at 65. One of the men was shot in the back of the thigh; he survived and identified Appellant.8 N.T., 8/8/12, at 259-60.

A different witness testified Appellant fired a revolver at least six times at various people. N.T., 8/7/12, at 158. Yet another witness one of the men that initially intervened to break up the fight testified he saw Appellant holding a revolver, stand over a person lying on the ground, and shoot him twice: once in the abdomen, which struck his aorta causing him to bleed to death, and once in the leg. N.T., 8/8/12, at 38, 48, 208. Appellant also shot a fourth victim, severely wounding her; she identified Appellant from a photo array. Id. at 139, 149-50. In sum, Appellant shot four9 people, killing one.

Multiple eyewitnesses identified Appellant as having a beard and distinctive teeth, as well as wearing blue jeans and a green shirt or sweater. See, e.g., id. at 35, 132. They also identified Appellant as having a tattoo or religious mark on the center of his forehead. See, e.g., N.T., 8/7/12, at

8 With respect to the other man Appellant shot, the Commonwealth did not file charges against Appellant. 9 As noted above, the Commonwealth only pursued charges against Appellant for shooting three people.

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160. One witness, however, when describing Appellant to the police, initially 8/8/12, at 268. A different witness described Appellant to the police as

The police did not apprehend Appellant until two months later. See N.T., 8/9/12, at 191-99, 206-20. A jury convicted Appellant of the above crimes on August 10, 2012. The court sentenced Appellant that day to life without parole followed by twenty-Appellant filed a timely post-sentence motion challenging, inter alia, the

-sentence motion and took this appeal.10

10 ost-sentence motion has a handwritten

August 28, 2012 date. The docket, however, reflects that the order was docketed on August 27, 2012. Appellant filed a notice of appeal on Thursday, September 27, 2012, which is thirty days after August 28, 2012, but thirty-

statement with a handwritten date of September 28, 2012, an undated proof of service, and a transcript order form, also with a handwritten date of September 28, 2012. This Court issued a rule to show cause on Appellant as to why his appeal should not be quashed as untimely. Appellant responded that the trial court did not deny his post-sentence motion until August 28, 2012. Because of the irregularities in the record the date an order is docketed should be identical to the filed date appeal was untimely. Cf. Commonwealth v. Lana, 832 A.2d 527, 528 n.2 (Pa. Super. 2003) (holding, because record reflected conflicting time stamps, petition for certiorari was timely filed).

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On October 2, 2012, the court ordered Appellant to comply with Pa.R.A.P. 1925(b) within twenty-one days. Appellant filed an untimely Rule 1925(b) statement on November 9, 2012.11 The trial judge did not write a Rule 1925(a) decision as she had retired from the bench.

Appellant raises the following issues:

Did the trial court err in failing to find that the evidence was not insufficient to show as a matter of law that Appellant was guilty of first degree murder when the . . . testimony presented by the Commonwealth witnesses was so impeached and contradictory as to not be believable beyond a reasonable doubt?

Did the court err in failing to the verdict [sic] was not against the weight of the evidence as the testimony presented by the Commonwealth witnesses was contradictory and even exonerated Appellant?

We summarize Appel should be discredited because their trial identifications of him were inconsistent with their initial descriptions to the police that the shooter had witnesses colluded to identify him as the culprit. Appellant also argues that he could not have had a revolver that night because he was subject to pat

11 We decline to find waiver, however. See Pa.R.A.P. 1925(c)(3); Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013) (holding untimely filing of Rule 1925(b) statement by counsel is per se ineffective assistance of counsel).

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down searches before entering the bar. He similarly challenges the verdict as against the weight of the evidence. We hold Appellant has not established entitlement to relief.

First-degree murder is a criminal homicide committed by an intentional killing. 18 Pa.C.S. § 2502.

To obtain a conviction for first-degree murder, the Commonwealth must demonstrate that: a human being was unlawfully killed; the defendant was the killer; and the defendant acted with malice and a specific intent to kill. In determining whether there was sufficient evidentiary

court inquires whether the proofs, considered in the light most favorable to the Commonwealth as verdict winner, are sufficient to enable a reasonable jury to find every element of the crime beyond a reasonable doubt. The court bears in mind that: the Commonwealth may sustain its burden by means of wholly circumstantial evidence; the entire trial record should be evaluated and all evidence received considered, whether or not thereon were correct; and the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence.

Diggs A] specific intent to kill may be inferred from the use of a deadly weapon on a vital part of the body . . .

Id. (citation omitted). The abdomen is a vital part of the body. Commonwealth v. Briggs, 12 A.3d 291, 307 (Pa. 2011).

It is well-settled that -of-court statements and in-Commonwealth v. Goldblum

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trial may be appropriate in a case where the testimony at trial is hopelessly

Commonwealth v. Griffin, 65 A.3d

. goes to the credibility of the appeal denied, 76 A.3d 538 (Pa. 2013).

Instantly, we view the evidence in the light most favorable to the Commonwealth. See id. As set forth above, multiple eyewitnesses identified Appellant as the shooter. See, e.g., N.T., 8/8/12, at 38, 48. The record established Appellant stood over and shot the victim twice: once in the abdomen a vital part of the body and once in the leg. Id. at 208; see Briggs, 12 A.3d at 307. Thus, because the witnesses consistently identified evidence lacks merit. See Diggs, 949 A.2d at 877.

To the extent Appellant challenged the discrepancies between the

-of-court identification and in-of the evidence. See Goldblum, 447 A.2d at 240; Griffin, 65 A.3d at 939. Instantly, Appellant challenged the weight of the evidence in his post-sentence motion and thus preserved the issue for appeal. See Pa.R.A.P. 607(a); Brown, 648 A.2d at 1191.

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A chal

Commonwealth v. Widmer, the weight of the evidence since [our] examination

Commonwealth v. Brown, 648 A.2d 1177, 1191 (Pa. 1994) (citation omitted). We only review whether the trial court abused its discretion when it evaluated the challenge. Id. (limiting review of weight of evidence claim to whether trial court abused discretion). After careful consideration of the facts, as set forth above, we discern no abuse of discretion by the trial court when denying his motion for a new trial. See id. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014

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