Commonwealth v. Turner

1

COMMONWEALTH OF PENNSYLVANIA v. DAZON WYKIE TURNER Appellant

No. 60 MDA 2023

No. J-S03019-24

Superior Court of Pennsylvania

May 14, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered November 9, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000405-2021

BEFORE: OLSON, J., NICHOLS, J., and BECK, J.

MEMORANDUM

NICHOLS, J.

Appellant Dazon Wykie Turner appeals from the judgment of sentence imposed after a jury convicted him of one count of voluntary manslaughter and two counts of aggravated assault.^[1] Appellant raises challenges to the sufficiency of the evidence, the weight of the evidence, and the discretionary aspects of sentence. We affirm Appellant's convictions, vacate the restitution component of the sentence, and remand for resentencing.

The trial court summarized the facts of this case as follows:

On October 4, 2020, Wilkes-Barre City police responded to a domestic call at 46 Darling Street, in Wilkes-Barre City. Officer Oswalt and Officer Morris of the Wilkes-Barre City Police Department arrived at that residence and made contact with Jamielynn Giraldo [(Jamielynn)] and . . . Appellant. Neither party had any visible injuries and Jamielynn [] told the officers that she was waiting for her father who was on his way to pick her up from that residence. The parties did not ask police for additional help so the officers left.

A short time later, in the early morning hours of October 5 2020, police returned to the area in response to a shots fired call. Arriving at the location police observed two females, later identified as Jamielynn [] and Liliana Giraldo [(Liliana)] lying on the ground wounded by gunfire. A male, identified as Carlos Taffanelly [(Taffanelly)], was also laying on the ground unresponsive with a gunshot wound to his head.

At trial evidence was presented which indicated that a threatening verbal altercation developed between [] Appellant and Jamielynn's parents, [] Taffanelly and Liliana [], outside [] Appellant's residence on Darling Street. [] Taffanelly threatened [] Appellant and Liliana [] was armed with a tool. This altercation ended when Jamielynn [], Liliana [] and [] Taffanelly left Darling Street in the car driven by [] Taffanelly. [] Appellant got in his vehicle also and at one point both vehicles were on River Street driving in different directions. Then [] Appellant made a U-Turn and began to follow the victims' car. [] Appellant parked on North Street at its intersection with River Street while Mr. [Taffanelly's] car was parked at a traffic light. [] Appellant exited his vehicle and began shouting a challenge to Mr. [Taffanelly] who then accelerated his vehicle toward [] Appellant who was standing on the sidewalk. His vehicle hit the curb and he exited the vehicle armed with a pipe and ran toward [] Appellant. [] Appellant ran to his vehicle and retrieved a firearm. He then shot Mr. [Taffanelly]. Jamielynn and Liliana [] also ran toward [] Appellant and they too were shot by him. [] Appellant then fled the scene in his vehicle. [] Taffanelly was pronounced dead. Jamielynn and Liliana [] were treated for their injuries and each received significant medical treatment.

[] Appellant was arrested and charged with murder of the first degree [and] murder of the third degree for killing [] Taffanelly and two (2) counts of attempted homicide and two (2) counts of aggravated assault for shooting and injuring Liliana [] and Jamielynn [].

The case proceeded to trial by jury and after several days of testimony the jury acquitted [] Appellant of murder in the first and third degree and both counts of attempted homicide. He was convicted of voluntary manslaughter for the killing of [] Taffanelly and two counts of aggravated assault for shooting Liliana and Jamielynn [].

Trial Ct. Op., 5/19/23, at 1-3 (citations omitted).

On November 9, 2022, the trial court sentenced Appellant to consecutive terms of six and one-half to thirteen years' incarceration for voluntary manslaughter, six and one-half to thirteen years' incarceration for aggravated assault with respect to Liliana, and seven to fourteen years' incarceration for aggravated assault with respect to Jamielynn. The trial court's aggregate sentence is twenty to forty years' incarceration. The trial court also ordered Appellant to pay $9,000 in restitution to Jamielynn Giraldo for the costs of Taffanelly's funeral.^[2]

Appellant filed a timely post-sentence motion seeking reconsideration of sentence and challenging the weight of the evidence. The trial court denied that motion on December 20, 2022.

Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises six issues on appeal:

1. Was the evidence insufficient evidence to prove voluntary manslaughter, aggravated assault - Liliana Giraldo, and aggravated assault - Jamielynn Giraldo, because the Commonwealth did not disprove justification or self-defense?

2. Was the evidence insufficient evidence to prove aggravated assault - Jamielynn Giraldo, regarding the required mental state of [Appellant] and proof of serious bodily injury?

3. Did the [trial] court err[] by the admission of photographs or images that were cumulative, inflammatory in nature, and unduly prejudicial to [Appellant]?

4. Did the [trial] court abuse its discretion in denying [Appellant's] post-sentence motion seeking a new trial because the verdict was against the weight of the evidence?

5. Did the [trial] court abuse its discretion in imposing an aggregate sentence of not less than twenty (20) years to not more than forty (40) years of incarceration?

6. Did the [trial] court abuse its discretion in ordering the restitution requested by the Commonwealth without sufficient supporting evidence?

Appellant's Brief at 6 (some formatting altered).^[3]

Sufficiency of the Evidence: Self-Defense

In his first issue, Appellant argues the evidence was insufficient to sustain his convictions of voluntary manslaughter and aggravated assault with respect to Lillianna because he had presented a defense of justification. Appellant's Brief at 28-34. Specifically, Appellant contends it was undisputed that Taffanelly and Liliana confronted him while yelling and brandishing weapons, i.e., metal pipes or bars. Id. at 30-31. Appellant further asserts that after the original confrontation ended without violence, Taffanelly drove his vehicle directly towards Appellant, then missed and struck the curb. Id. at 31. Appellant claims that Taffanelly and Liliana then exited their vehicles and pursued Appellant. Id. Appellant argues that he reasonably believed that he was in danger, and therefore he acted in self-defense when he shot Taffanelly and Liliana. Id. at 31-32. Appellant also asserts that he satisfied the duty to retreat, but Taffanelly and Liliana pursued him. Id. at 34.

Appellant further contends that Lawrence Kansky and Liliana presented inconsistent testimony about the number of shots that Appellant fired. Id. at 32. Further, Appellant suggests that bullets he fired went through Taffanelly's body and struck Liliana who was behind him. Id. at 32-33.

In reviewing a challenge to the sufficiency of the evidence, our standard of review is as follows:

Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation omitted and formatting altered).

Challenges to reliability of evidence go to the weight of the evidence, not sufficiency. See, e.g., Commonwealth v. Barkman, 295 A.3d 721, 733 (Pa. Super. 2023) (noting that unlike weight claim, "a sufficiency claim must accept the credibility and reliability of all evidence that supports the verdict" (citation omitted)). Indeed, the "[e]xistence of inconsistencies in the testimony of a witness does not alone render evidence insufficient to support a verdict." Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (citations omitted); see also Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super. 2018) (reiterating that "[v]ariances in testimony . . . go to the credibility of the witnesses and not the sufficiency of the evidence" (citation omitted)).

Under the Crimes Code, self-defense is a defense of justification, which is a complete defense to criminal liability. See 18 Pa.C.S. §§ 502, 505. We have explained that

[t]he use of force against a person is justified when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person. See 18 Pa.C.S. § 505(a). When a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove such a defense beyond a reasonable doubt.

Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008) (citation omitted).

To...