J-S27013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH WHITE : : Appellant : No. 1670 EDA 2019 Appeal from the Judgment of Sentence Entered May 7, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001702-2018

BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.* MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 11, 2020 Appellant, Kenneth White, appeals from the judgment of sentence entered on May 7, 2019, in the Court of Common Pleas of Philadelphia County.

We affirm.

This case stems from an altercation that occurred on December 31, 2017, and gave rise to charges filed against Appellant. The trial court provided a thorough and comprehensive recitation of the testimony provided at trial in its Pa.R.A.P. 1925(a) opinion filed September 23, 2019, that outlines the facts of this case. We shall not repeat those lengthy facts herein.

On February 25, 2019, Appellant was found guilty by a jury of third- degree murder and possession of a firearm prohibited.1 Appellant was ____________________________________________

* Former Justice specially assigned to the Superior Court.

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sentenced on May 7, 2019, to fifteen to thirty years imprisonment for third- degree murder and a concurrent two and one-half to five years of imprisonment for possession of a firearm prohibited.

On May 15, 2019, Appellant filed a post-sentence motion, which was denied on June 5, 2019. On June 11, 2019, Appellant filed a notice of appeal.

Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following issues for our review: A. Was the evidence insufficient to support the third-degree murder conviction?

B. Was the third-degree murder conviction against the weight of the evidence?

C. Did the trial court commit an abuse of discretion by imposing the sentence it did on Appellant?

Appellant’s Brief at 4.

In his first two issues, Appellant challenges the sufficiency and weight of the evidence as it relates to his conviction of third-degree murder. The standard for evaluating sufficiency claims 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[‘s].

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 -2- J-S27013-20

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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

The law pertaining to weight-of-the-evidence claims is well settled. The weight of the evidence is a matter exclusively for the fact finder, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Forbes, 867 A.2d 1268, 1272–1273 (Pa. Super. 2005). The grant of a new trial is not warranted because of “a mere conflict in the testimony” and must have a stronger foundation than a reassessment of the credibility of witnesses. Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa. Super. 2007). Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. Id. An appellate court’s purview: is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court’s exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence.

Commonwealth v. Knox, 50 A.3d 732, 738 (Pa. Super. 2012) (internal citations omitted). An appellate court may not reverse a verdict unless it is so contrary to the evidence as to shock one’s sense of justice. Forbes, 867 -3- J-S27013-20

A.2d at 1273. “[T]he trial court’s denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008).

Case law has defined the elements of third degree murder as follows: To convict a defendant of the offense of third degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought. This Court has long held that malice comprehends not only a particular ill-will, but ... also a wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013).

The trial court’s September 23, 2019 opinion comprehensively and correctly disposes of Appellant’s first two issues raised on appeal. Accordingly, we affirm the decision of the trial court on these two issues, and do so based on the analysis outlined in its opinion.

In his third issue, Appellant argues that the trial court abused its discretion in sentencing Appellant. Appellant’s Brief at 39. Appellant contends that the sentencing court failed to consider Appellant’s background, character, and rehabilitative needs before imposing an excessive sentence under the circumstances. Id. at 39. Appellant further maintains that the trial court imposed a sentence “that was excessive under the circumstances in the absence of reasons for imposing such an excessive sentence other than the seriousness of the crime.” Id. Finally, Appellant argues that the sentencing court exceeded the applicable sentencing guidelines without providing

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adequate reasons for doing so or acknowledging on the record that it was aware of the applicable sentencing guidelines, in violation of the law. Id. at 39-40.

Appellant’s issue challenges the discretionary aspects of his sentence.

We note that “[t]he right to appellate review of the discretionary aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the discretionary aspects of a sentence, the appeal should be considered a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)): An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: [W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170. Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-

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case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

Here, the first three requirements of the four-part test are met: Appellant filed a timely appeal; Appellant preserved the issue of imposition of an excessive sentence in his post-sentence motion; and Appellant included a statement raising this issue in his brief pursuant to Rule 2119(f). Moury, 992 A.2d at 170. Therefore, we address whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the sentencing court.

“We examine an appellant’s Rule 2119(f) statement to determine whether a substantial question exists.” Commonwealth v. Ahmad, 961 A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted only when the appellate court determines that there is a substantial question that the sentence is not appropriate under the Sentencing Code. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A substantial question exists where an appellant sets forth a plausible argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process. Id. In his Pa.R.A.P. 2119(f) statement, Appellant asserts that “although the sentence is within the statutory limits and the standard range of sentences, the sentence imposed is manifestly excessive and unreasonable because the sentencing court did not consider his mitigating circumstances and also

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considered impermissible factors like [A]ppellant’s alcoholism when deciding on the sentence it imposed.” Appellant’s Brief at 38. “[T]his Court has held that an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question.”

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation omitted). Because Appellant has presented a substantial question, we proceed with our analysis.

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).

When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of defendant, and it must impose an individualized sentence. The sentence should be based on the minimum confinement consistent with the gravity of the offense, the need for public protection, and the defendant’s needs for rehabilitation.

Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). Guided by these standards, we must determine whether the court abused its discretion by imposing a “manifestly excessive” sentence that constitutes “too severe a punishment.” Id. Moreover, this Court has explained that when the “sentencing court had the benefit of a presentence investigation report

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(“PSI”), we can assume the sentencing court ‘was aware of relevant information regarding defendant’s character and weighed those considerations along with mitigating statutory factors.’” Moury, 992 A.2d at 171.

Here, Appellant’s sentence of fifteen to thirty years of incarceration is statutorily permissible. See 18 Pa.C.S. § 1102(d) (“a person who has been convicted of murder of the third degree . . . shall be sentenced to a term which shall be fixed by the court at not more than 40 years.”).

Moreover, the sentence is within standard range of sentencing guidelines. “[W]here a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.” Moury, 992 A.2d at 171. The conviction carried an offense gravity score of fourteen, and Appellant had a prior record score of three, with use of a deadly weapon enhancement. N.T., Sentencing, 5/7/19, at 3. As such, Appellant’s attorney at the sentencing hearing acknowledged that the guidelines provided for a sentence of 138 months to the statutory limit. Id. at 3. As noted previously, the statutory limit for third-degree murder is forty years. 18 Pa.C.S. § 1102(d). Thus, the limit for a minimum sentence was twenty years. Accordingly, Appellant’s minimum sentence of fifteen years was within the recommended guideline range. 204 Pa.Code § 303.17(b).2

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The trial court also placed its reasons for sentencing on the record and imposed an individualized sentence. At sentencing, the trial court stated: THE COURT: The [c]ourt reviewed the pre-sentence report, the mental health evaluation, the letters sent on behalf of [Appellant] by his family and the Commonwealth’s sentencing memorandum.

The [c]ourt is very familiar with the facts of this case and listened very carefully to the victim impact testimony.

The pain in this room is palpable. What that means is you could feel it, it is so strong, how the acts of one person can cause such deep and lasting pain.

The problem with this is, and I hear what [Appellant] is saying, that he had a longstanding relationship with this young man but the bottom line really is this, it is [Appellant] who introduced alcohol into the situation. You had a drinking problem.

When you have a drinking problem, you don’t think right. When you don’t think right, you make poor decisions and you cause a lot of problems.

You introduced the gun into the situation because without a gun, you would have been fairly harmless against him but you went out of your way to put that gun -- I don’t know why -- into the couch seat, so it was right there when the conflict occurred.

You introduced the anger and conflict into the situation, fueled by alcohol.

You kept this going. You just kept it going. You instigated a situation. How could you not think a young man would stand up for his mother, his sister? It is unreasonable. That is what alcohol does to your brain. There is no young man that will let you threaten his mother and not have a strong reaction to that.

All of that conduct, that came from you, sir, and it was a recipe for disaster and I don’t give a lot of weight to what somebody does afterward because I know that people do all sorts of things after an event like this happens because they are frightened but I give it some weight, a little weight.

If you loved him like a son, you stay there. You help. You admit what you did. You remain there and you try to ameliorate the damage that you did, and the problem here is because of your -9- J-S27013-20

alcohol addiction, because of your anger, you took a life and because you took that life, you ruined so many lives, fatherless children. We have people here who are suffering, really suffering.

I do take into consideration the age of this [Appellant]. He is 62 years old. The fact that for 13 years, he remained arrest free, and that he does have a serious substance abuse problem.

It is presently with alcohol but he had a substance abuse problem throughout his life.

Based on everything I have said, the sentence of the [c]ourt is, as follows: On the charge of third degree murder, the sentence of this Court is 15 to 30 years, possession of a firearm prohibited, 2-and-a-half to 5 years to run concurrently. Funeral expenses are ordered in the amount of $4,152.00. Court costs are ordered.

N.T., Sentencing, 5/7/19, at 35-38.

Thus, as reflected in statements made at the sentencing hearing, the trial court discussed its rationale at length on the record. It considered all relevant evidence, including the sentencing guidelines and the relevant factors of protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of defendant. Ferguson, 893 A.2d at 739. Furthermore, the trial court had the benefit of a PSI. Thus, we can presume the sentencing court was aware of relevant information regarding Appellant’s character and weighed those considerations along with mitigating factors. Moury, 992 A.2d at 171. As a result, we conclude that Appellant failed to establish that the trial court abused its discretion in sentencing him.

Thus, Appellant is entitled to no relief on this claim.

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Judgment of sentence affirmed.3

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/2020

____________________________________________

- 11 - Circulated 12/03/2020 11:53 AM

IN THE COURT OF COMMON PLEAS OF PHILAW:gHIA CRIMINAL TRIAL DIVISION (;:y. '`&°,23 ply COMMONWEALTH OF PENNSYLVANIA : CP-5 - t)11.02,-.101.8,.-- S riCt v.

KENNETH WHITE 1670 EDA 2019

OPINION Rose Marie DeFino-Nastasi, J. September 23, 2019 PROCEDURAL HISTORY On February 25, 2019, Kenneth White ("the Defendant") was found guilty by a jury, presided over by the Honorable Rose Marie DeFino-Nastasi, of third-degree murders and possession of a firearm prohibited.2 He was sentenced on May 7, 2019, to fifteen to thirty years imprisonment for third-degree murder and a concurrent two -and -one-half to five years for possession of a firearm prohibited. The aggregate sentence was fifteen to thirty years of imprisonment.

On May 15, 2019, the Defendant filed a Post -Sentence Motion, which was denied on June 5, 2019. On June 11, 2019, the Defendant filed a Notice of Appeal to the Superior Court.

On September 3, 2019, pursuant to this Court's 1925(b) order, the Defendant filed a Statement of Matters Complained of on Appeal, claiming: I. The evidence was insufficient to support the verdict of third-degree murder; IL The verdict of third-degree murder was against the weight of the evidence; and III. The trial court abused its discretion at sentencing when the trial court:

18 Pa.C.S. § 2502(c).

2 18 Pa.C.S. § 6105. a. Sentenced the Defendant without providing sufficient reasons for the sentence imposed; b. Failed to give careful consideration to all relevant factors; c. Gave improper weight to the fact that the Defendant was intoxicated at the time of the shooting, concluding that since his intoxication was voluntary, it was a factor to aggravate his sentence rather than mitigate his sentence since the very nature of alcoholism is the struggle one suffers from controlling the addiction itself; d. Did not properly consider that the Defendant is seriously infirm, suffering from numerous serious chronic ailments; e. Failed to take into account the remorse and shame felt by the Defendant; and f. Failed to take into account that there was only one shot fired and this occurred while the decedent was in a struggle with the Defendant grabbing for the gun as the Defendant was falling backwards.

FACTS Police Officer Edgar Vazquez testified that on December 31, 2017, he received a dispatch of a shooting at 5736 Leonard Street. Upon arriving at the scene, Officer Vazquez observed two females and one male attempting to aid the decedent, who had a gunshot wound to the left side of the chest. Officer Vazquez and Officer Ocasio helped the paramedics place the decedent into the ambulance and he was taken to Einstein Hospital, where he was pronounced dead at 1:37 p.m. Notes of Testimony ("N.T."), 2/21/2019 at 105-10.

Officer Edwin Ocasio testified that on December 31, 2017, he received a radio call at approximately 12:55 p.m. of a shooting at 5736 Leonard Street. After placing the decedent in the ambulance, Officer Ocasio stayed on scene and spoke with the decedent's mother, Gloria Brown. Ms. Brown told Officer Ocasio that the Defendant was her ex -boyfriend with whom she and her children still lived. She and the Defendant were having an argument when the decedent intervened and began arguing with the Defendant. During the course of the argument the Defendant retrieved a handgun from under the couch, cocked it and pointed it at the decedent.

The decedent attempted to hold the Defendant's arms down and the Defendant fired the gun,

hitting the decedent in the chest. The Defendant then fled the scene in a black Kia Sorento. N.T., 2/21/2019 at 216-21.

Tanyiah Jackson testified that the decedent was her brother. On December 31,2017, Tanyiah lived with the decedent, her mother (Gloria Brown), her two-year -old son, and the Defendant. The Defendant and Ms. Brown had recently ended an eleven year relationship. As a result of the relationship ending, Tanyiah, the decedent, and Gloria were planning to move out of the Defendant's house within the week. N.T., 2/21/2019 at 116-20.

On the night of December 30,2017, into the early morning hours of December 31,2017, Tanyiah, Ms. Brown, the decedent, and the Defendant were at a party at a friend's house. While Ms. Brown Tanyiah and Ms.Brown were still at the party, the Defendant went home and called and Ms. Brown left to tell her that he was throwing her belongings out onto the porch. Tanyiah and a the party and returned home to find Ms. Brown's belongings on the porch. The decedent Defendant, neighbor (Jeannette Moore) moved the items back into the house. Ms. Brown and the Id. at 122-28. who was drunk, began arguing about when Ms. Brown was moving out.

After the argument quieted down, everyone sat around the living room talking for about when he was an hour. At that time, Ms. Brown asked the Defendant where he placed her gun moving her belongings. The Defendant said that he did not have it, but that he knew where it Ms. Moore, and was. He would not tell Ms. Brown where it was located. Tanyiah, Ms. Brown, a.m., on the decedent searched for the gun but were unable to find it. Approximately 6:00 December 31,2017, Ms. Moore went home and everyone else went to sleep. Id. at 126-30.

Tanyiah woke up around ten or eleven a.m. and heard the Defendant and Ms. Brown the arguing again. Tanyiah called Ms. Moore and asked her to come back over to help calm intervene. situation. The argument escalated and the decedent came up from the basement to

The decedent said to the Defendant: "We said we're leaving. Be a man. You're always telling me to be a man. We're leaving. Just leave her alone." The Defendant then approached the decedent and threatened to get his cousin Mitchell to come and kill him. Id. at 131-38.

Ms. Brown broke up the argument between the decedent and the Defendant and the Defendant walked upstairs. The Defendant then came back downstairs, put his coat on and said something to the decedent. This caused the decedent to respond.3 The Defendant then retrieved the gun from under the couch, cocked the gun and pointed it at the decedent. Id, at 140-42.

The Defendant moved towards the decedent, and the decedent attempted to swat the gun out of the Defendant's hand. In the struggle for the gun, both men fell to the floor. The decedent attempted to hold the Defendant's arms down, but the Defendant moved the gun towards the decedent and pulled the trigger. Id. at 143-46,165-66,203.

After the gun went off, the Defendant said: "he [the decedent] shot himself" Tanyiah began screaming and pushed the Defendant out of the house. She picked up a stick and was going to hit the Defendant with it, but the Defendant showed Tanyiah the gun and said: "don't do it Tanyiah." The Defendant then jumped into a car and drove off. A video showing Tanyiah and the Defendant's interaction outside the house immediately following the shooting was played for the jury. Id at 146-50,158-63.

Gloria Brown testified that she had been living at the 5736 Leonard Street for approximately four or five years before the shooting, and the decedent had been living there for two years. At the party on December 30,2019, the Defendant approached Ms. Brown and asked her for sex. She declined, and he called her a "b*tch" and left. Ms. Brown left the party and returned home upon receiving a call from the decedent that her belongings were outside the

3 Tanyiah did not hear what either man said. N.T., 2/21/2019 at 114. house. When Ms, Brown returned to the house, she and the Defendant argued until four or four - thirty in the morning, at which time she went to bed. Ms. Brown was awakened at six -thirty or seven o'clock in the morning by the Defendant, who asked her to get back together with him.

Ms. Brown said "no" and went back to sleep. N.T., 2/21/2019 at 236-49.

At approximately 11:00 a.m., Ms. Brown was in the kitchen cooking. The Defendant, who was intoxicated, entered and began arguing with her again. Id. at 249-52.

During the argument, the decedent came upstairs from the basement into the kitchen.

The decedent said: "I'm tired of you all arguing all the time. Mr. Kenny, you told me to act like a man. She's leaving on Friday. You're 60 -something years old. Act like a man," The Defendant then threatened to have his nephew kill the decedent. The decedent responded that he was not afraid,4 and the Defendant pulled Ms. Brown's gun from under the couch.5 The Defendant cocked the gun and pointed it at the decedent, The decedent grabbed the Defendant's arms and tried to move them down but the Defendant fired the weapon from point blank range into the decedent's chest. The decedent did not touch the Defendant prior to the Defendant pointing the gun at him. After shooting the decedent, the Defendant walked out of the house and drove off. Id. at 252-59.

Jeanette Moore testified that in the early morning hours of December 31,2017, she received a phone call from Ms. Brown asking if her belongings were outside. Ms. Moore informed Ms. Brown that they were, and Moore helped the decedent bring the belongings back into the house. When Ms. Brown returned home, Moore witnessed Ms. Brown and the Defendant arguing. Ms. Moore asked the Defendant where Ms. Brown's gun was located. The

Moore or Ms. Brown. Ms. Defendant said he knew where it was but would not give it to Ms. Moore left the house at around five a.m. N.T., 2/22/2019 at 79-85. day. Ms. Ms. Moore returned to the house around twelve in the afternoon the next Brown and the Defendant were having the same argument they had been having earlier that said to the morning when Moore had last been there. The decedent came upstairs and Just leave her alone." The Defendant: "[Willy don't you leave her alone. We're leaving Friday. to have somebody kill the Defendant and the decedent began to argue. The Defendant threatened a cushion on the couch. decedent. The Defendant then pulled Ms. Brown's gun from underneath was scared and ran outside.

The Defendant cocked the gun and pointed it at the decedent. Moore As she was running she heard a single gunshot. Id. at 86-95.

Dr. Khalil Wardak, Assistant Medical Examiner, testified that the decedent's cause of death was a gunshot wound to the chest. Furthermore, the muzzle of the gun was in N.T., 2/22/2019 at 127- contact with the body of the decedent when the firearm was discharged.

36. the Police Officer Edwin Torres testified that on January 1,2018, he observed Defendant's Kia Sorento outside of a beer distributor located at the 5400 block of Large Street.

N.T,, 2/22/2019 at 139-42.

Detective James Sloan testified that he recovered video surveillance from the beer the jury. The video distributor where the Ilia Sorento was located. The video was played for pulls a revolver out of depicts the Defendant inside the beer distributer. On video, the Defendant his pocket and looks at it. No gun was recovered. N.T., 2/22/2019 at 144-56. special Crime Scene Officer Christine Hilbert testified that she recovered four live .38 at 171-78. cartridges from the couch inside the Defendant's house. N.T., 2/22/2019

Police Officer Ronald Weitman from the Firearms Identification Unit, testified that the bullet recovered from the decedent's body was a .38/.357 caliber. N.T., 2/22/2019 at 191-200.

ANALYSIS ISSUE I The Defendant's first claim is that the evidence was insufficient to support the verdict of third-degree murder. Evidence presented at trial is sufficient when, viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence and all reasonable inferences derived therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt. Commonwealth v. Baumhammers, 960 A.2d 59, 68 (Pa. 2008). The Commonwealth may sustain its burden of proving each element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011) (citing Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)).

In addition, the fact-finder is free to believe all, part, or none of the evidence, and credibility determinations rest solely within the purview of the fact -finder. Commonwealth v.

Treiber, 874 A.2d 26, 30 (Pa. 2005). The Superior Court considers all the evidence admitted, without regard to any claim of wrongly admitted evidence. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010). The Superior Court will also not weigh the evidence or make credibility determinations. Id. Third-degree murder is any unlawful killing committed with malice aforethought. 18

Pa.C.S. § 2502(c); Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005). Evidence is sufficient to sustain a conviction for third-degree murder when the Commonwealth establishes that: (1) a human being was unlawfully killed; (2) the accused is responsible for the killing; and

(3) the accused acted with malice. Id. Malice is defined as "a reckless disregard of that the consequences, it is not sufficient to show mere recklessness; rather, it must be shown that his actions might defendant consciously disregarded an unjustified and extremely high risk cause the death or serious bodily injury [of another]." Commonwealth v. Packer, 146 A.3d 1281, such as the 1285 (Pa. Super. 2016). Malice may be established through circumstantial evidence, Crosley, 180 use of a deadly weapon upon a vital part of the victim's body. Commonwealth v.

A.3d 761, 767 (Pa. Super. 2018).

The evidence presented at trial was that the Defendant and the decedent were in a verbal couch altercation when the Defendant retrieved a loaded gun that he had hidden underneath a then cushion, pointed the gun at the decedent and cocked the hammer. The Defendant ward off the approached the decedent with the gun pointed at him. The decedent attempted to Defendant pulled attack by swatting at the gun and grabbing hold of the Defendant's arms, The the decedent's the trigger, discharging the firearm when the barrel of the gun was in contact with firearm, chest. The decedent died as a result of the gunshot wound. Brandishing a loaded weapon is in pointing it at the mid -section of the decedent, and pulling the trigger when the contact with the decedent's body most certainly shows a conscious disregard of an unjustified there was and extremely high risk that death or serious bodily injury might occur. Therefore, sufficient evidence to sustain the Defendant's conviction for third-degree murder.

ISSUE II The Defendant's second claim is that the verdict of third-degree murder was against the fact who is weight of the evidence. The weight of the evidence is exclusively for the finder of free to believe all, part, or none of the evidence and to determine the credibility of witnesses.

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011), app. Denied, 42 A.3d 1059

(Pa. 2012) (citation omitted), "[A] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed." of the Commonwealth v. Thompson, 106 A,3d 742, 758 (Pa. Super. 2014). Accordingly, "[o]ne that the least assailable reasons for granting or denying a new trial is the lower court's conviction verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa, 2013). A trial judge on the should not grant a new trial due to "a mere conflict in the testimony or because the judge same facts would have arrived at a different conclusion." Id. at 1055, The initial determination regarding the weight of the evidence is for the fact -finder. Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa. Super. 2007). The trier of fact is free to believe all, some or none of the evidence. Id. Only where the jury verdict "is so contrary to the evidence as to shock one's sense of justice" should a trial court afford a defendant a new trial. Id. The jury's verdict did not "shock one's sense of justice," Although there were minor inconsistencies as to the position of the Defendant and the decedent at the time of the shooting, to have the all three eyewitnesses were clear on their testimony that the Defendant threatened decedent killed, moments before retrieving a hidden firearm, cocking it, pointing it at the the decedent, and firing at close range. Tanyiah Brown testified that she saw the Defendant pull trigger. Therefore, the verdict was not against the weight of the evidence.

ISSUE III The Defendant's third claim is that the trial court abused its discretion at sentencing when the trial court: 1. Sentenced the Defendant without provided sufficient reasons for the sentence imposed; 2. Failed to give careful consideration to all relevant factors;

at the 3. Gave improper weight to the fact that the Defendant was intoxicated time of the shooting, concluding that since his intoxication was voluntary, it was a factor to aggravate his sentence rather than mitigate his sentence since the very nature of alcoholism is the struggle one suffers from controlling the addiction itself; 4. Did not properly consider that the Defendant is seriously infirm, suffering from numerous serious chronic ailments; 5. Failed to take into account the remorse and shame felt by the Defendant; and; 6. Failed to take into account that there was only one shot fired and this occurred while the decedent was in a struggle with the Defendant grabbing for the gun as the Defendant was falling backwards the The Defendant's claim is without merit. "Sentencing is a matter vested within discretion of the trial court and will not be disturbed absent a manifest abuse of discretion." Commonwealth v. Crump, 995 A.2d 1280, 1282 (Fa. Super. 2010). "An abuse of discretion prejudice, requires the trial court to have acted with manifest unreasonableness, or partiality, bias, or or such lack of support so as to be clearly erroneous." Id. "A sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically the sentencing court's reference the statute in question, but the record as a whole must reflect consideration of the facts of the crime and character of the offender." Id. at 1281 Here, the record as a whole reflects the sentencing court's consideration of the sentencing at 35-38 guidelines, facts of the crime and character of the offender. See N.T., 5/07/2019 for (attached as "Exhibit A" where this Court thoroughly reviewed the considerations sentencing).

The court did not abuse its discretion in sentencing.

CONCLUSION Based on the foregoing, the Petitioner's judgement of sentence should be affirmed.

By, e Co it:

ose arie DeFino-Nastasi, J.

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA CRIMINAL TRIAL DIVISION CP-51-CR-0001702-2018 COMMONWEALTH OF PENNSYLVANIA :

v. 1670 EDA 2019 KENNETH WHITE

EXHIBIT A First Judicial District of Pennsylvania CR00017022018 Kenneth White

Sentencing Volume 1 May 07, 2019

CRS Court Reporting System

First Judicial District ofPennsylvania South Broad Street, Second Floor Philadelphia, PA 19110 (215) 683-8000 FAX:(215) 683-8005

Original File 5-7-19AKENNETHAIVH1TE.03, 40 Pages CRS Catalog 1D: 19050919 Sentencing Volume 1 51CR00017022018 May 07, 2019 ° Kenneth White Page 2 Page 1 IN THE COURT OF COMMON PLEAS Commonwealth vs. White FIRST JUDICIAL DISTRICT OF PENNSYLVANIA (1] THE COURT: We are here for [2] [21 sentencing. (31 (3) Has Counsel had the COMMONWEALTH CP-51-CR-0001702-2018 [4] [41 opportunity to review the pre -sentence [5] report and the mental health? [5] VS, (61 MS. GHADIRI: Yes, Your Honor. [6] KENNETH WHITE 17] MR. REYNOLDS: Yes, Your [71 [8] Honor. la] [9] Tuesday, May 7, 2019 [9] THE COURT: Do we agree that [10) [10] the offense gravity score is a 14, with Courtroom 1107 - The Juanita Kidd Stout Center for Criminal Justice [111 deadly weapon used and a prior record 121 Philadelphia, Pennsylvania 1121 score, I have as a 4.

131 - - - 14] SENTENCING [13] I heard there is a problem 151 [141 with that?

16] BEFORE: THE HONORABLE ROSE MARIE DEFINO-NASTASI, J.

17) --- [15] MS. GHADIRI: Correct, Your 181 APPEARANCES: [161 Honor.

19] SHEIDA GHADIRI, ESQ. Your Honor, there is a 1978 [171 Assistant District Attorney 20) For the Commonwealth [18] conviction for 6105.

21] COLEY REYNOLDS, ESQ. [19] THE COURT: 6105 or 6106?

For the Defendant 221 [20] COURT CLERK: 6106.

23] [21] MR. REYNOLDS: I'm sorry, 24] 25] 1[221 6106. They have it graded as a felony [23] - of the third degree. I believe it [24] should be graded as a misdemeanor.

1125] THE-COURT: It is still a 1.

Page-3 Page 4 Commonwealth vs, White Commonwealth vs. White [1] -THE COURT: Do we even have [1] Now, I don't go back to '78 but weapons [21 offenses were always counted as a 1, [21 the guidelines from 1978? [3] MR, REYNOLDS: That is part of [3] whether they were misdemeanors or not.

You have to find it, [41 the problem. [4] MS. GHADIRI: It looks like [5] What is your argument, that he [5] [6] is 3?a [6] the statute, itself, was amended in MR. REYNOLDS: My argument is 171 1997. It just says Subsection A but [71 [8] he is a 3, Your Honor. [8] does not indicate what in Subsection A THE COURT: So 14-3, deadly [9] was amended.

weapon used, what are the guidelines on [10] MR. REYNOLDS: It never made [10] (11] it out of M.C. Court. We know it was a (11] that? [12] MR. REYNOLDS: They are 138 to [12] misdemeanor. [13] THE COURT: What is 6108, how [13] the statutory limit. [14] THE COURT: What is the [14] many points is that? [15] MR. REYNOLDS: It is a I. [15] Commonwealth's position? Did anyone look this up? [16] THE COURT: So is POW, [16] [17] MS. GHADIRI: Your Honor, [17] Possession of an Offensive Weapon.

MR. REYNOLDS: Right. [181 Mr. Reynolds addressed this with me this 1181 [19] THE COURT: Any weapons 1191 morning, I had graded it as a 1 based [20] on the VUFA charge, as well as what is [20] offenses are a 1, that is just the way [21] it is. [21] in the PSI. Other than this issue being So let's begin. [22] addressed now, I did not look to see if [22] in 1978, if it was graded as a different [23] COURT CRIER: State your full [23] [24] name, spell your last name. [24] or the offense gravity score in that [25] THE DEFENDANT: Kenneth White; [25] case -- (page - 4) Kevin Flanagan, O.C.11 Court Reporting System 1 Sentencing Volume 1 51CR00017022018 May 07, 2019 Kenneth White Page 6 Page 5 Commonwealth vs. White Commonwealth vs. White [11 Your Honor, this was an extremely W -H-I -T -E. [2] difficult case and I know that there was [2] [3] some consideration for the jury on [3] KENNETH WHITE, the Defendant, having been first duly [4] manslaughter and I still believe that it [4] sworn, was examined and testified, [5] was a manslaughter case. [51 [6] I know the jury's verdict. I [81 as follows: [7] respect it, at least at this point. We [71 [8] will be filing our motions for an appeal [8] THE COURT: Go ahead, Counsel.

MR. REYNOLDS: Your Honor, [9] on this but I really believe that this [9] [10] was an accident, Judge. (101 good morning. [11] I really believe that, yes, he [11] Your Honor, I have reviewed [12] was reckless. He shouldn't have taken [12] both the pre -sentence report, the mental (13] the gun out. He was stupid. He was [13] health evaluation, all of the documents and reports submitted from pretrial [14] drunk and that certainly created a bad [14] [15] services. [15] place and created this situation but at I also submitted to the Court [16] the moment, the testimony was pretty [16] a number of letters which I recently [17] clear that the gun went off while the [17] received in regard to this matter. I [18] decedent was tackling my client, as he [18) also submitted a letter that I received [19] was falling backward and as you are [19] this morning from my client. I know my. [20] going to hear from my client, when he [20] client is extremely remorseful and wants . [21] fell backward, his arm hit the wall and [21] [22] --:that is when the gun went off. It is a [22] to address the Court. He will obviously [23] do it later this afternoon. [23] tragic, tragic accident.

Right now, Your Honor, I would = [24)- The jury came back with a [24] like to point out a few things. First, [25] third degree murder conviction. We [25] Page 7, Page 8 Commonwealth vs. White Commonwealth vs. White [1] understand that, but that doesn't mean [1] Nr..White,himself, suffered that you can't depart from the '[2] from drug and alcohol abuse starting [21 guidelines and fashion a sentence at [3] from an early age. By 14, he was doing [3] [4] least that is appropriate for what you [4] heroin. He pretty much did every drug that came out. When crack came out, he [51 believe you've heard the facts are. [51 You might completely disagree 16) was doing crack. When oxy came out, he [61 with me and, again, I understand that, [7] was doing oxy. He was self-medicating Judge. That is your prerogative, but I (8] his whole life. He never was treated. [8] As he readily admits to the [8] don't think this is a 20 to 40 case. We [8] [10] do 20 to 40 cases for people who [10] investigator, and to Counsel, and I intentionally kill people all of the (11] believe to you, every problem he's had [11] time. There is no intention in this [12] has been drug -related. He either [12] murder and to give him a 20 to 40, which [13] committed crimes for money to buy drugs [13] [14] is what the Commonwealth is asking for, [14] or he committed crimes while he was [15] blows away all sense of proportionality [15] either high or drunk. He recognizes [16] and justice, Your Honor. [16] that. He knows there is no going back Judge, I want to note some [17] but it is still a consideration that the [17] [18] Court should take. [18] things from the pretrial report. As you He has six children, Your [19] can see, Mr. White did not have a great [19] upbringing. His father was verbally [20] Honor. By all counts, he is a great [20] abusive. His mother was a drunkard and [21] father, a great grandfather to them. He [21] [22] has his GED, Your Honor. At the time of [22] so was his father. He saw the father (23] his arrest, he was steadily employed. [23] only we weekends. The death of the [24] His physical condition, Your [24] mother was a great burden on him. It [25] Honor, is one of great concern. He has [25] affected him greatly. (page 5 - 8) Kevin Flanagan, O.C.R Court Reporting System Sentencing Volume 1 51CR00017022018 May 07, 2019 Kenneth White Page 10 Page 9 Commonwealth vs. White Commonwealth vs. White [1) every witness got up there, and I asked [1] cirrhosis of the liver, which has been [21 getting worse, hepatitis C and he [2] every one of them because I hoped we (3] informed me this morning that he has [3] wouldn't be here this day but I knew it 141 just been diagnosed with diabetes. [4] was a possibility, about how drunk he I would ask that whatever [5] was. We heard everything from stumbling [5] [6] sentence you give him, you make a [61 drunk, to drunk, to his usual self. So, [7] recommendation to the Department of 171 clearlily, he has an alcohol problem at [81 Corrections that he be placed in an 181 this point, Your Honor. [91 appropriate medical facility of the 191 He was interestingly diagnosed [10] Department of Corrections. [to] with PTSD, Your Honor, having the Again, his substance abuse [11] symptoms of PTSD and in his mental [12) history is pretty well outlined in the [12] health report -- he never revealed this [13] pre -sentence report, Your Honor. I do [131 to me. I asked him about it this [14] find it troubling that he never got 11141 morning -- he revealed to the evaluator [15] help. It is unfortunate but here he is, [15] he was having nightmares. [16] Your Honor. [161 So he and I talked about this [17] It's funny. He described his [17] this morning and he told me he relives [18] childhood as good but when I look at it, [18] this moment over and over again in his 9] he had a mentally abusive father and [19] mind, that it keeps him up at night, [20] examples around him of drunk all the [20] that he has nightmares. He will tell [21] time. It is no wonder, he, himself, [21] you he knew this boy. He knew this boy [221 grew up to be addicted to both drugs, [22). ',...growing up., This isn't something he [23] alcohol. He kicked the drugs now but he [23] wanted to hapPen. It is something he is [241 still had an alcohol problem at the time - [24] greatly ashamed of, greatly remorseful [25] of this incident and by all accounts, [251 for.

Page 12 PE1ge 11 -

Commonwealth vs. White Commonwealth vs. White I think when you consider all [1] that she is waking up and she is [2] of these factors, Your Honor, that you .[2]. preparing food, cooking in the kitchen [3] should sentence him to a sentence well [31 when this Defendant, who was drunk, is [4] below the guidelines. I think you [41 saying and escalating an argument [5] should depart for those reasons and , [51 continuously throughout the day. He pj fashion a sentence that is more in line [6] will not Iet it go. He had thrown her [7] with a manslaughter conviction. [7] clothes outside on the porch the night [a] Thank you, Your Honor. [8] before.

THE COURT: Thank you, [9] When that died down, he still [10] Mr. Reynolds. (10) continued the escalation here to the [11] Miss Ghadiri. [11] point where he hid her gun underneath a [121 MS. GHADIRI: Thank you, Your 1121 couch cushion. He managed to toss out (13) all of her items but kept the gun for [13) Honor. [14] Your Honor, I don't want to (14) himself. [15] relitigate the jury trial in front of [15) In that case, he puts the gun [16] you but the jury did find the Defendant [16] underneath the couch cushion and as he is purposely escalating an argument, [17] guilty of third degree murder and I [171 [18] think a lot of the facts that [181 demanding that they move out of the [19] Mr. Reynolds left out kind of show more 119] house and when Miss Brown tells him that in five days, they are going to be out [201 of the malice that is nonexistent in the 120] [21) manslaughter charge. [211 of that house, they were about to leave, [22] First of all, December 31st of [221 he still doesn't take that for an [23] 2017, it is supposed to be New Year's [231 answer.

It is the decedent, it is Eve, it is supposed to be a day of [241 [24] Emanuel Brown, who acts more like a man, [25) celebration and Miss Brown testified (25] Kevin Flanagan, O.C.R Court Reporting System (page 9 - 12) Sentencing Volume 1 51CR00017022018 May 07, 2019 Kenneth White Page 14 Page 13 Commonwealth vs. White Commonwealth vs. White [1] He has no criminal record. He has two [1] more like an adult than this Defendant [2] young daughters, Mariah and Miasia [2] because Emanuel Brown gets up from that [3] (ph.), who are 5 and 9 years old. They [3] basement where he was sleeping and he [4] are without a father now because this [4] tries to de-escalate. He tries to stop [5] Defendant couldn't handle the fact that [5] the argument from happening. That is [6] they were moving out in five days. He [6] undisputed.

171 couldn't wait for five days. That is [7] It is this Defendant that goes [8] just what happened up until the [8] to that couch cushion, that grabs that [9] shooting. How this Defendant acted [9) gun that he hid and points it at Emanuel 1[10] after the shooting as well is egregious. [10] and even after pointing it at Emanuel, 1[11] He was with Gloria Brown for [11) he had previously before that threatened 1[12] 13 years. Emanuel Brown is almost like [12] Emanuel. [13] a son to him or should have almost been [13] So to say that this is just an 1[14) like a son to him and when that bullet [14] accident, when the Defendant not only [15) goes into his chest and Emanuel is on [15) threatens the decedent, points the gun 1[18] the ground, dying in front of everyone's [16] at him and when the decedent, who sees [17] his sister, his baby niece, his mother, 1[171 eyes, he just walks away. Gloria his neighbor all in that house, he tries 108] testified and the family testified there [18] to protect them. He tries to protect was no look of remorse on his face. [19] (19] them by trying to put his body between 1[20] There was.no look of shock or panic. He [20] [21] his family and the Defendant because he 1[21] just got out of that house and that is [22] is holding a gun. That gun goes off. 1[24 also on video.

1[23] So .whedMr. Reynolds wants to [23] That muzzle of that gun is pressed up to his chest, .1(24) argue -he was a stumbling drunk, we see [24) [25] Emanuel Brown is 27 years old. --1[25] his movements on the video. We see that Page 16 Page '15 Commonwealth vs. White - Commonwealth vs. White [1] he wasn't stumbling. He was walking and [1] recovered. he even points that gun at Tanyiah [21 These are the actions of [2] 1

Jackson, who is yelling at him from the I [3] someone who acted with malice, someone [3) [4) porch, and he gets into his car. He [4] who killed a 27 -year-old young man, that [5] drives. We see that on video. The car [5] should have been like a son to him, and [6] is not weaving. The car is not going [6] just walked away.

I understand he has battled [7] back and forth. He parks in front of [7] [a] the beer store. [8) with his addictions. It is in the PSI. [9] 1 understand that he had issues with [9] THE COURT: He hits a car.

MR. REYNOLDS: He does. [10] alcohol, I understand that they were [10] MS. GHADIRI: He hits a car. [11] drinking the night before but none of [11] I'm sorry. The door is flying open and [12] that was enough to negate what he did [12) as the neighbor is attempting to stop [13] that night. [13] [14] He has been arrested fourteen [14] him, he sideswipes the car on the way [15] times. He has seven convictions, three [15] out, I was referring to when he was driving to the beer store, there is [16] commitments, three revocations. This is 116] nothing unusual about the movement of [17] someone who had possessed a gun before [17] [18] in the past. This is someone who has [18] the car at that time.

You see him walk in the store. (19] been through the system, that knows the [19) You see him on the phone, talking. [20] consequences to his actions. [20] [21] He is 60 years old. He is [21) There is no stumbling. There is no [22] 60 years old, that pointed a gun at an [22] falling. The motions and movements are normal and then what he does is he [23] unarmed 27 -year -old man in his pajamas [23] [24] that night, and when we talk about a [24] ditches the car, He flees to Newark, [25) sense of justice and we talk about [25] New Jersey and the gun is never (page 13 - 16) Kevin Flanagan, O.C.R Court Reporting System Sentencing Volume 1 51C1100017022018 May 07, 2019 Kenneth White Page 17 Page 18 Commonwealth vs. White Commonwealth vs. White [1] that at all. Your Honor, I believe a [1] proportionality, the 20 to 40 is an aggregate for the third degree murder [2] sentence of 20 to 40 years for the third [2] and the 6105. [3] degree murder, consecutive to the 6105 [3] (4) is appropriate, and Mr. Reynolds [4] I think if those two charges [5] ran consecutively to each other, they [5] indicated that he has some physical [6] are within the guidelines. Whether it [81 ailments, as well as maybe some mental is a 4 or whether it is a 3 prior record [71 health conditions. If he is put in a [7] score, they are within the guideline [81 state facility that can address those [8) [9) sentence if they run consecutively to [91 conditions, we would have no objection each other and that is what l am asking [10] to that whatsoever. [10] [11] Other than that, Your Honor, [11) for here, Your Honor. [12] I saw nothing within the PSI. [12] that concludes my portion. I do have [13] I understand that he was employed for [13] family members that wish to speak. five years at a cleaning company [141 THE COURT: You may call them. [14] [15] MS. GHADIRI: Thank you. [151 beforehand, so to sit there and say that [16] some sort of addiction was controlling [16) Miss Brown. [17] or ruining his life, he seemed to have [17] COURT CRIER: State your full [181 been maintaining and being functional to [18] name, spell your last name. [19] the point where it wasn't. The only 1[19] THE WITNESS: Gloria Brown; [20) reference of alcohol came from drinking [20] B -R -O -W-N. -- -1 1[21] [21] from the night before. -

[221 It is nothing to sit there and [2?] - :GLORIA BROWN, having been [23] to say that the alcohol or the addiction ![23] first dulisworn, was examined and [24] was the reason for this. If what I say I [24) testified; as follows: (25) is unjust, then I just don't agree with - 1[251 Pjge 19 Page 20 Commonwealth vs. White Commonwealth vs. White MS. GHADIRI: Miss Brown, 1111 Job'Corps to become something. He (2) would you like to address the Judge? [2] wanted.to be a carpenter. My son worked THE WITNESS: Yes. [31 every day. He enjoyed working, Emanuel [3] MS. GHADIRI: What would you [4] was my comedian. When I was down and I [5) like to tell the Judge? [51 was sick, he would put a smile on my [6] THE WITNESS: About my son. [6] face. We used to skip down the street, [7] MS. GHADIRI: What would you [7] laughing.

I remember one day I was sick. [8] like to tell her? [8] THE WITNESS: My son, 27, my [9] I have been at death's door twice and I [9] [10] first born, the oldest grandchild and [10) was sick and I made it to the bathroom [11] the first grandchild. He didn't deserve [11] but I couldn't come back from the [12] that. [12) bathroom and I was sliding down the wall [13] Emanuel was sweet. He wasn't [131 and my son showed up and picked me up in [14] perfect but he was a sweet child and he [14) his arms and put me back in my bed. [151 would do anything to protect his family. [15] My son should not be gone. [161 When his dad passed, he had to stand up [16] That was my first born. We talked about [171 as a man. When he had his daughter, my [17] any and everything, any and everything. [181 son went on his own and took classes to [18] As a single mom, I taught my son to stay fig) be a better man because he knows he fell [191 out of the street. I could have lost my [20) short in some aspects and that helped [20] son to the street. My son could have him. [21] been part of a gang, Judge. [21] [221 My son wasn't sick. My son (223 I was hard on my son to stand [23] was healthy. My son took himself out of [231 as a black male, be there for his [24] high school and made a decision before [24] children. My father was not there for [25] me. My mother was on drugs and I [25] he was a part of the streets to go to Court Reporting System (page 17 - 20) Kevin Flanagan, O.C.R Sentencing Volume 1 51C100017022018 May 07, 2019 Kenneth White Page 21 Page 22 Commonwealth vs. White Commonwealth vs. White [1) struggled every day. Once I decided to [1] why didn't you stay? Why didn't you (2) have kids, I am going to protect my [2] apologize? Why didn't you put pressure [3) kids. I know right from wrong, like any [3] on that hole with me? When you called [4] of us, and I taught my kids the same. [4) my son y01.11' son, when you told my son My son would try and talk a [5] you loved him, why didn't you stay there [5] [6] dispute, not fight it out. That wasn't if it was an accident?

I see my son in that casket [7] his first thing. It was to diffuse it. [7] (8) If I was wrong, my son would tell me I [8] the same way I held him in my arms and [9] am wrong. If Mr. White was wrong, he [9] wrapped him up. I had to wrap my son up would tell him he is wrong. If my son 1[10] in that casket. I didn't make it to the [10] [11] got angry, I would tell my son go for a 1[11] hospital to even see my son. I felt [12) walk. If there is a problem in the 4121 like it was my fault. I didn't protect [13] household, I would call Mr. White's 4131 him as a mother, like I should. I did [14] family to tell them what the problem 1[14] the best that I could. I hope my son [15] was. [15] knows that I did the best that I could.

We always tried a way and that 1[16] I want him to have the [16) [17] day, he took my baby, my oldest baby maximum, Your Honor. I don't think 1[171 [18] from me. I'm hurt. I'm destroyed. I 1[18] there is no remorse. The day he looked [19] want him to have the maximum because my 1[191 at me when he walked out that door after [20) pain, and my hurt, the nightmares, they 1[20] he shot my son, there is no remorse. [21] I can't get my son back. I [21) are at their max. I am barely sleeping, [22] Your Honor. I am barely sleeping. I [22] -never got to.hold my son the last time. [23] relive this every day. I relive this [23] I had to kiss him in that casket and [24] right now and the look he gave me when [24] Wrap him back up. No mother should [25] he shot my son, if it was an accident, [25] endure burying their child, never, Page 23 Page 24 Commonwealth vs. White ConamonWealth vs, White [1] never. In the Bible, it says he didn't [1) him.being there and being able to talk [2) give life. God gave life. So why did [2] to somebody: I lost my dad in 2015. My he take a life if he can't give it back? [31 dad went brain -dead. I had a father but (31 (4) Give him the maximum, Your Honor, [4] after that, I didn't have nobody to turn please, please. [8] to but my brother. [5] [81 Thank you. [6] If I had a problem with THE COURT: Thank you. 171 something, I would just talk to my [7) [8] - - [8] brother, He was able to tell me about men and stuff like that. I don't have [9] (Whereupon, the witness [9] [10] is excused, at this time.) [10) that now. I miss him every day. [11] [11) I really don't do anything. I [121 MS. GHADIRI: Tanyiah. Jackson, [12) stay home a lot, I work, I take care [13] Your Honor. [13] of my son. I just wish that my son had [14] COURT CRIER: State your full [14] his uncle to play with. We have family [15] name, spell your last name. [15] but not much. We are small, but I just [16] THE WITNESS: Tanyiah Jackson; [161 wish that my brother was here. [17] J -A -C -K -S -O -N. [17] He always kept a smile on [18] everyone's face, laughing, dancing. He [18] [19] TANYIAH JACKSON, having [19] loved to dance. I do a lot of dancing. [20] been first duly sworn, was examined [20] That is what we had in common. Me and [21] and thstified, as follows: [21] my brother would always be in the house [22) [22] dancing a lot.

THE WITNESS: I just wanted to [23] I just miss hearing his voice, [23] [24] speak about my brother and how he was. [24] seeing him, being there for us. A lot I just miss the times, the laughter and [25) of things have changed. Holidays aren't [25] (page 21 - 24) Kevin Flanagan, O.C.R Court Reporting System Sentencing Volume 1 51CR00017022018 May 07, 2019 Kenneth White Page 26 Page 25 Commonwealth vs. White Commonwealth vs. White Me and my brother grew up [1] the same. I don't want to do anything [21 together. We were right behind each [2] anymore. I just want my brother back. [3] other in age. Every time he took a [31 If I could have my brother back, things [41 step, I took a step. My brother used to [4] would be okay. It ain't okay. It is [5] call me his little, big sister because I [5] not the same for me anymore. [s] was the one who would step into certain [6] That is all I want to say.

THE COURT: Thank you. [7] situations and be there and tell him [71 [8] - - [81 enough is enough. (Whereupon, the witness [91 That night before everything [91 is excused, at this time.) [101 happened and all the commotion and [10] [111 everything was going on, I had a [11] MS. GHADIRI: Your Honor, if I [121 conversation with my brother and I told [121 can call Rashawn Pierce to the stand. [131 him, I said you're leaving in five days. [13] COURT CRIER: State your full [14] Don't feed into it. Don't argue with [14] [15] him. Let him do what he do. [151 name, spell your last name. [16] My brother texted me back and [161 THE WITNESS: Rashawn Pierce; [17] said you make it seem like he's going to [17] P -I -E -R -C -E. [18] do something to me, his words. I wasn't [181 RASHAWN PIERCE, having [19] there that day but to get a phone call [19] been first duly sworn, was examined 1201 and say that your brother has just been [20] [21] and testified, as follows: [211 shot and knowing he said those words to - - - [22] =you the night before, it hurts because I [221 THE WITNESS: I am Gloria's [231 felt like me being his little, big [23] [24] oldest daughter. I just want to tell ... [24] - sister, I wasn't there. I was the everybody a little bit. [25] - person, when Kenny would act crazy, I [25] Page 27 1 Page 28 Commonwealth vs. White COmmonwealth vs. White haVe went down. Not only does the [1j would calm him down. I could do that. 111 [2] I seen him that night. Everything was [2] situation affect us, we are adults, we okay and then it just sort of started [3] can carry ourselves, it affected kids. [31 [4] back up again. [4] My kids look at the picture of My brother had his moments [5] this man and say Pop -Pop still. My son [5] when he got mad or he was angry but it [6] is 10 years old. He is so angry. He is [6] [71 never was I am just going to lash out [7] so angry because he said my Pop -Pop took and attack. It was not like that. The [8] my uncle. There is no reason that kids [81 only time my brother got in trouble was [91 should have to deal with something like [91 [10] for hitting a boy who punched me in my [10) this. eye. That is what he was, a protector, [11) The same way if he is hurt and [11] [121 protect his family. [12] we are hurt, we have to think about It's just me, my mom and my [131 these kids. They are going to grow up [13] sister. It was my brother. Now it's [141 to remember this stuff. To see all of [14] just us. There is no dad. There is no [151 this, it's hard. It's hard to trust [16] brother. It's just three girls trying [16] somebody, knowing that a person who said [17] they loved you for thirteen years, to do [17] to live, and keep each other up, and protect each other. [18] something like this to us. You can't [18] This situation did so much to [19] trust nobody. Loyalty don't mean [191 my family. My morn moved to Florida. (201 nothing no more. Every day we walk down [20] [21] the street, we have to think and look at [21] She is leaving because Philly just took [22] life differently because of this [22] so much from her. Only me and my sister [23] are left here together, trying to ride [23] situation, [241 I just ask that he gets what [24] this out. If it weren't for the friends [251 he deserves, the maximum, and today I [25] that we have to keep us up, we all would (page 25 - 28) Kevin Flanagan, O.C.R Court Reporting System Sentencing Volume 1 51CR00017022018 May 07, 2019 Kenneth White Page 30 Page 29 Commonwealth vs. White Commonwealth vs. White barely talk to my brother. [1] wasn't going to say nothing but I felt 111 [2] So Emanuel was my go -to. I like I had to get up here for Emanuel. talked to him about problems I'm having, [31 That is all we want is justice for my [31 [4] stuff I'm going through and he was [4] brother, that's it and that is all I [51 always there to talk to me, even when he [51 have to say. [6] was in Job Corps and I called him. He [6] THE COURT: Thank you. - - [7] was great. He still answered my phone [71 (Whereupon, the witness calls and for tne not to be able to call [8] is excused, at this time.) [91 my cousin and tell him what's going on [91 [10] [101 with me or call him when something is MS. GHADIRI: Your Honor, [111 wrong, it hurts me because I can't have [11) [12) Juatvez Pierce. [12] my cousin back. I feel like Kenny COURT CRIER: State your full [131 should get the maximum because he is [131 name, spell your last name. [14j still here. His family can still talk [141 to him. They can still see him. [15] THE WITNESS: Juarvez Pierce; [15] [161 P -I-E -R-C-E. [16] We can't get my cousin back. [17] [17] We can't see my cousin's face no more [18] JUARVEZ PIERCE, having [18] unless it is on a picture, and my family is hurting. They are hurting. We 1191 been first duly sworn, was examined [19] [201 and testified, as follows: [20] barely got boys in our family. We can [21] count on our hand how many boys we have. [21] [22] THE WITNESS: I am Gloria's [22] So for one:pf our boys to be gone, it [23] niece, Emanuel's cousin. Emanuel was '1[23] hurts. It hurts: It hurts very bad and [241 more like a brother to me. He talked to [24] Tam asking you and I am begging you, [25] me. I didn't have a dad. I could [251 please, please, give justice for my Page 81 - Page 32 Commonwealth vs. White Commonwealth vs. White [1] cousin, Emanuel Brown, [1] really, have a family. So when me and THE COURT: Thank you. [2] Emanuel became cool, his family took me [2] [31 - - [3) [4] in as his family. So now I don't have a friend but I have his family. [41 (Whereupon, the witness I just think about the good (51 is excused, at this time.) [5] 161 times and try not to think about the bad [8] MS. GHADIRI: Your Honor, [71 times and when I got the phone call that [7] lastly, Ashley Thomas. [8] day, I didn't want to believe it. I [81 COURT CRIER: State your full [9] still try not to believe it but it's [91 name, spell your last name. [10] true. [10) THE WITNESS: Ashley Thomas; [11] Today, I just want justice for [11] [12] T-H -O -M-A-S. [12] my friend. I can't have my friend back [13] - - [13] [14] but I will just keep memories that I have for him. That is all I have to [14] ASHLEY THOMAS, having been first duly sworn, was examined [15] say. [15) and testified, as follows: [16] THE COURT: Thank you. [16] [17] [17] THE WITNESS: My name is [18] (Whereupon, the witness [18] is excused, at this time.) [19] Ashley. Emanuel was a long-time friend [19] [20] [201 to me, We went to high school together. [21] MS. GHADIRI: Your Honor, I [211 When I met Emanuel, he was kind. He was [22] sweet, Every time I was getting in [22] have no more testimony. There is [23] trouble, he was always there. I got [23] restitution requested in this case, [241 funeral expenses in the amount of [24] kicked out of school and then I started [25] $4,152.00 and I would just submit my [25] hanging around with him. I didn't Court Reporting System (page 29 - 32) Kevin Flanagan, O.C.R Sentencing Volume 1 CR00017022018 May 07, 2019 - Kenneth White Page 34 Page 33 Commonwealth vs. White Commonwealth vs. White memo, which has been e -filed, as [1] letters and a letter from my client Commonwealth's Exhibit C-1. [2] also. [2] [3] THE COURT: I read them, yes. [31 14] (Whereupon, a Document [4] MR. REYNOLDS: Thank you, Your was marked as Exhibit C-1, for (5] Honor. [5) identification.) [61 THE COURT: Mr. White, you [6] (7] - - [7] have the right to speak prior to 181 MS. GHADIRI: With that, Your [8) sentencing.

Honor, I have nothing further. [91 Is there anything that you [9] 1101 THE COURT: Mr. White, you 0] wish to say? [11] have the right to speak prior to [11] THE DEFENDANT: Good [121 sentencing. [12) afternoon, Your Honor.

Is there anything that you 113] THE COURT: Good afternoon. [13] 114] wish to say? [141 THE DEFENDANT: It is so hard. [151 MR. REYNOLDS: Judge, before [15] This was not supposed to happen. This [16] he speaks, Ijust want to place on the [161 was an accident. I never intended for record all the family members who are [17] this to happen this way. I'm so sorry. [17] here. While we were in here debating [18] Gloria, Tanyiah, Rashawn, you [181 the prior record score, some were coming [NO] all know in my heart, I never meant to [19] while I was doing that, so, _1[20] hurt that boy. I loved him. I'm so [20] [21] You have Mr. White's sister, [21] Sony this happened. This was not [22] his niece, his granddaughter, his 1[221 :supposed to happen. It was an accident. [23] I wish I could bring him back. I think [231 brother, his sister-in-law, his daughter [241 and his nephew. (Indicating). 1[24] about him every day. It has been real (25] We submitted, I believe, eight [25] hard. I wailt you to all know that I am Page 35 Page 36 Commonwealth vs. White .1 Commonwealth vs. White [1] very sorry that this happened. [1] makeipoOr decisions and you cause a lot [2) Thank you, Your Honor. [2) of problems.

THE COURT: The Court reviewed 131 You introduced the gun into [31 [4] the pre -sentence report, the mental 141 the situation because without a gun, you [5] health evaluation, the letters sent on [5] would have been fairly harmless against [6] behalf of the Defendant by his family (6] him but you went out of your way to put (7) and the Commonwealth's sentencing [7] that gun -- I don't know why -- into the [8] memorandum. The Court is very familiar [8] couch seat, so it was right there when [9] with the facts of this case and listened [9] the conflict occurred. You introduced [10] very carefully to the victim impact (10] the anger and conflict into the [11] testimony. [11) situation, fueled by alcohol. [12] The pain in this room is [12] You kept this going. You just [13] palpable. What that means is you could (13] kept it going. You instigated a [14] feel it, it is so strong, how the acts [14] situation. How could you not think a [15] of one person can cause such deep and [15] young man would stand up for his mother, [181 lasting pain. [161 his sister? It is unreasonable. That (1 7] The problem with this is, and (17] is what alcohol does to your brain. [18] I hear what the Defendant is saying, [18] There is no young man that will let you [19] that he had a longstanding relationship [19] threaten his mother and not have a (20] with this young man but the bottom line [20] strong reaction to that. really is this, it is the Defendant who [21] All of that conduct, that came [21] [22] introduced alcohol into the situation. [22] from you, sir, and it was a recipe for (23] You had a drinking problem. When you [23] disaster and I don't give a lot of [24) have a drinking problem, you don't think [241 weight to what somebody does afterward [25] right. When you don't think right, you 125] because I know that people do all sorts Court Reporting System (page 33 - 36) 1evin Flanagan, O.C.R Sentencing Volume 1 51CR00017022018 May 07, 2019 Kenneth White Page 37 Page 38 Commonwealth vs. White Commonwealth vs. White of things after an event like this [1] murder, the sentence of this Court is 15 [1] [21 happens because they are frightened but [2] to 30 years, possession of a firearm I give it some weight, a little weight. [3] prohibited, 2 -and -a-half to 5 years to [31 [4] If you loved him like a son, [4] run concurrently. Funeral expenses are [5] you stay there. You help. You admit [51 ordered in the amount of $4,152.00. [6] what you did. You remain there and you [6] Court costs are ordered. try to ameliorate the damage that you [7] You can advise, Counsel. [71 did, and the problem here is because of [5] MR. REYNOLDS: Thank you. [51 [91 your alcohol addiction, because of your 191 Mr. White, the Judge just [10] anger, you took a life and because you [10] sentenced you to an aggregate sentence [11] took that life, you ruined so many [111 of 15 to 30 years incarceration. [12] lives, fatherless children. We have [12] Do you understand the sentence [13] people here who are suffering, really [13] that you received? [14] suffering. [14] THE DEFENDANT: Yes. [15] I do take into consideration [15] MR. REYNOLDS: You have ten [16] the age of this Defendant. He is 62 [16] days from today to file a motion with [17] years old. The fact that for 13 years, [17] Her Honor to reconsider that sentence. [18] he remained arrest free, and that he [18] It must be in writing. It must be done [19] does have a serious substance abuse [19] by an attorney. As your court -appointed [201 problem. It is presently with alcohol [P] counsel, I will do it for you, if you [21] but he had a substance abuse problem [21] request. [22] throughout his life. [22]7 We've already had a [23] Based on everything I have (23) conversation about that; is that 1(24] correct? [24] said, the sentence of the Court is, as -

[25] follows: On the charge of third degree --- [25] THE DEFENDANT: Yes.

Page 39 Page 40 Commonwealth vs. White Commonwealth vs. White [1/ MR. REYNOLDS: You wish me.to [1] excused; Your Honor? [2] do that; correct? [2] THE COURT: Yes. [3] THE DEFENDANT: Yes. [31 Thank you both. [4] MR. REYNOLDS: At the [41 -- [51 conclusion of that motion or if you do [51 (Whereupon, the [6] not want me to file that motion, you [6] proceedings were adjourned, at this [71 have thirty days from today to file an [71 time.) [5] appeal with the Superior Court. Again, [8] [91 it must be in writing. It must be done [91 [10] by air attorney. [10] [11] As your court -appointed [11] [12] attorney, I will do that for you, and we [12] [13] had a conversation about that already? [13] [14] THE DEFENDANT: Yes. [14] [15] MR. REYNOLDS: You do wish me [15] (16] to file an appeal; correct? [16] [17] THE DEFENDANT: Yes. [17] [18] MR. REYNOLDS: Are you [18] [19] satisfied, Your Honor? [191 [20] THE COURT: Yes. [201 [21] MS. GHADIRI: Thank you, Your [21] [22] Honor. [22] [231 May I be excused? [23] 124] THE COURT: Yes. 1[24] [25] MR. REYNOLDS: May I be [25] Ceutt-Reperling F,yttlentiCoricratett 2G1e1(011 1540:145) Kevin Flanagan, O.C.R Court Reporting System (page 37 - 40)