Opinion
1431 WDA 2022
01-10-2024
COMMONWEALTH OF PENNSYLVANIA v. OMARR D. HARRIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered June 29, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014101-2019
BEFORE: BOWES, J., KUNSELMAN, J., and COLINS, J. [*]
MEMORANDUM
KUNSELMAN, J.
Omarr D. Harris appeals from the judgment of sentence entered following his conviction for murder of the third degree and carrying a firearm without a license. We affirm.
18 Pa.C.S.A. §§ 2502(c) and 6106, respectively.
One week before May 26, 2019, Harris had bought a gun from another person for $500.00. Shortly thereafter, Ernest Dixon then told Harris that the gun belonged to him. The two discussed the matter but reached an impasse: Dixon wanted his gun back but would not pay for it, and Harris did not want to give Dixon the gun without getting his $500.00 back.
Shortly after midnight on May 26, 2019, Harris was at a bar in Stowe Township, when he was alerted that Dixon had entered the bar. Surveillance cameras captured silent video of what ensued. At 12:50 a.m., Harris walked from beside the bar to an area in the back with pool tables, where he met Dixon and shook his hand. The two proceeded away from the crowd to the DJ booth at 12:51. Harris pulled the gun out of his pants. The two had an animated discussion for the next minute, while Harris kept the gun pointed at the floor and behind him. At 12:52, Harris and Dixon walked around opposite sides of a pool table to a group of people; Harris put the gun back in his pants. They talked together and with other people for another minute and a half. At 12:53:25, Harris walked back towards the bar. He sat down for a few seconds and then stood up. Dixon circled around the other way.
The final stage of the encounter started at 12:53:48 and was over within ten seconds. Harris approached Dixon from the back. Dixon pulled a gun from his pants with his right hand at 12:53:50. At 12:53:52, Dixon turned around, with his right hand by his waist. Harris pulled his gun back out of his pants at 12:53:53. At 12:53:54, Harris took a step backwards, holding his gun behind him as Dixon stepped towards him. Harris raised his left hand at 12:53:55. At 12:53:56, Dixon lunged at Harris with his left hand. Harris pivoted away while Dixon fell forward; Harris raised his right hand and shot Dixon in the head at 12:53:57. By 12:53:58, Dixon was on the floor, with Harris crouched down beside him. Harris stood up and staggered out of the bar at 12:54, returning the gun to his pants.
It is not clear from the surveillance footage that the item in Dixon's hand was a gun. However, we accept for our analysis that Dixon was armed.
Amid the chaos after the gunshot, two other individuals reached down to Dixon's body at 12:54:09, presumably retrieving Dixon's gun. Emergency personnel responded; Dixon died in the hospital. For his part, Harris left and disposed of the gun. Six months later, the United States Marshals found Harris living under an assumed name in North Carolina.
The case proceeded to trial in March 2022. Harris recounted his story of what happened at the bar. Harris said that he talked with Dixon about the gun because "Freeze," a mutual acquaintance, had told him that Dixon wanted to talk to him. Harris explained that he had pulled out the gun by the DJ booth to confirm that he and Dixon were talking about the same gun. Harris testified that Dixon told him "you know what it is" if he did not return the gun, and later "you know what it is" if he went outside. Harris interpreted these as threats that Dixon would kill him.
The jury found Harris guilty. On June 29, 2022, the trial court sentenced Harris to 16½ to 33 years of imprisonment for the murder and no further penalty for carrying a firearm without a license. Harris filed post-sentence motions, which the trial court denied. Harris timely appealed. Harris and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Harris challenges the sufficiency of the evidence to sustain both of his convictions.
As to the murder, Harris argues that the evidence was insufficient to disprove that he was acting in self-defense. Harris emphasizes that the only evidence against him was surveillance footage that contained video without audio. He contends that this puts the facts in equipoise at best-it is equally likely that Harris was or was not acting in self-defense when he shot Dixon. Harris submits that his initial display of the gun by the DJ booth was not provocation, that he had no duty to retreat before he was threatened, and that he reasonably believed his life was in danger.
And as to the firearm offense, Harris argues that the evidence at trial was insufficient to prove the barrel length of the gun that he was carrying without a license. He notes that no one testified that the barrel was less than 15 inches long, nor was the gun introduced into evidence. Harris argues that the quality of the surveillance footage is too poor for the jury to determine the length of the barrel.
Appellate review of a challenge to the sufficiency of the evidence is based on the constitutional requirement of "sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Commonwealth v. Hoyt, 273 A.3d 514, 528 (Pa. 2022) (quoting Jackson v. Virginia, 443 U.S. 307, 316 (1979)). We apply the same principles as the Supreme Court:
This Court follows the Jackson approach in determining whether evidence is sufficient to support a conviction beyond a reasonable doubt. First, our standard of review, like the Jackson standard, recognizes the proper regard an appellate court must give to the fact-finder's evaluation of all of the evidence received at trial and, therefore, requires scrutiny of the totality of that evidence in the light most favorable to the Commonwealth, as verdict winner and to draw all reasonable inferences in favor of the Commonwealth. Further, our Court's determination of the ultimate question of evidentiary sufficiency parallels the central inquiry under the
Jackson standard, namely, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Id. (citations and quotations omitted).
Although this Court does not re-weigh evidence in a sufficiency challenge, we recognize the "equally fundamental principle that a verdict of guilty may not be based upon surmise or conjecture." Commonwealth v. Farquharson, 354 A.2d 545, 550 (Pa. 1976). Thus, where the only "evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding." Id.
Likewise, our courts will find that evidence is insufficient to sustain a conviction when it "equally support[s] two reasonable but diametrically opposed ultimate inferences," only one of which is an appellant's guilt. In Interest of J.B., 189 A.3d 390, 409 (Pa. 2018). In such cases of "equipoise," a finder of fact "must not be permitted to guess which" of "two equally and mutually inconsistent inferences" to adopt. Id. at 409, 412 (quoting Commonwealth v. Woong Knee New, 47 A.2d 450 (Pa. 1946)). In these "admittedly rare," "atypical situations," an appellate court will reject the jury's verdict and reverse the appellant's conviction. Id.
Given these principles, we turn to the offenses of which the jury found Harris guilty. Both the crime of murder and the justification of self-defense are defined by statute. 18 Pa.C.S.A. §§ 2502(c) (Murder of the third degree), 505(b) (Use of force in self-protection). The following principles apply:
To establish the offense of third-degree murder, the Commonwealth must prove the killing of an individual with malice. Malice includes not only particular ill will toward the victim, but also wickedness of disposition, hardness of heart, wantonness, and cruelty, recklessness of consequences, and conscious disregard by the defendant of an unjustified and extremely high risk that his actions may cause serious bodily harm.
Self-defense is a complete defense to a homicide charge if 1) the defendant reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force to prevent such harm; 2) the defendant did not provoke the threat that resulted in the slaying; and 3) the defendant did not violate a duty to retreat. Where the defendant has introduced evidence of self-defense, the burden is on the Commonwealth to disprove the self-defense claim beyond a reasonable doubt by proving that at least one of those three elements is absent. If the Commonwealth proves that the defendant's belief that deadly force was necessary was unreasonable but does not disprove that the defendant genuinely believed that he was in imminent danger that required deadly force and does not disprove either of the other elements of self-defense, the defendant may be found guilty only of voluntary manslaughter under the defense of imperfect self-defense.
The finder of fact is not required to believe the defendant's testimony that he thought that he was in imminent danger and acted in self-defense. Disbelief of the defendant's testimony, however, is not sufficient to satisfy the Commonwealth's burden to disprove self-defense absent some evidence negating self-defense.Commonwealth v. Jones, 271 A.3d 452, 458-59 (Pa. Super. 2021) (citations omitted, formatting altered).
Intentionally firing a gun directly at a person is sufficient evidence of malice. Id. at 460. Furthermore, surveillance video footage can be sufficient evidence to sustain a murder conviction and rebut a claim of self-defense. See, e.g., id. at 460-61.
Here, there is no dispute that Harris shot Dixon; the inquiry is whether it was reasonable for the jury to find from the trial evidence that Harris was not acting in self-defense. We conclude that this was reasonable. The jury could find that Harris had provoked Dixon to draw a gun and to lunge at him based on Harris' animated display of his gun in the preceding minutes. The jury could also find that Harris, approaching Dixon for the last time, violated a duty to retreat and avoid Dixon, after he took Dixon's words as a threat if he did not return the gun. Harris' consciousness of guilt is further supported by his subsequent actions of fleeing and disposing of the gun.
To be sure, Harris' alternative explanation also fits the evidence. The jury could have found that Harris' interactions with Dixon by the DJ booth and pool tables were distinct from Dixon spontaneously drawing a gun and lunging at Harris with his empty left hand. The jury could have dismissed Harris' flight as a benign response to shock from the incident. In sum, the jury could have found that the Commonwealth failed to disprove self-defense.
However, we do not conclude that the jury was merely guessing which of two "equally reasonable" inferences to draw from the video and testimony. Cf. J.B., 189 A.3d at 412. Given the tenor of Harris' interactions with Dixon at the bar and his display of the gun, as well as his actions after the shooting, we cannot say that the evidence "equally support[s]" that Harris acted with legal justification. Id. at 409. Therefore, the evidence is sufficient to sustain Harris' conviction for murder of the third degree, and we will not wrest away the reasoned verdict from the jury. Hoyt, supra.
For Harris' conviction of carrying a firearm without a license, there must be sufficient evidence that the barrel length of the gun was less than 15 inches. 18 Pa.C.S.A. § 6102 (defining "firearm" by barrel length). The jury may infer this from a description of how the gun was concealed. See, e.g., Commonwealth v. Rozplochi, 561 A.2d 25, 31 (Pa. Super. 1989). Here, Harris carried the gun in his pants. Further, the jury could see the gun on the video, especially during the minute Harris spent gripping the gun by the DJ booth, moving it beside him and behind his back. The gun was not much longer than Harris' hand. It was reasonable to conclude from this evidence that the gun met the statutory definition of a firearm. Therefore, the evidence is sufficient to sustain Harris' conviction for the firearm offense.
Affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.