J-S16021-17

2017 PA Super 162

COMMONWEALTH OF PENNSYLVANIA

v.

DAIKWEON K. FORTSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 911 WDA 2016

Appeal from the Judgment of Sentence January 28, 2016

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0016615-2014

BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

OPINION BY RANSOM, J.: FILED MAY 26, 2017

Appellant, Daikweon Fortson, appeals from the judgment of sentence 

of thirteen to twenty-six years of incarceration imposed January 28, 2016, 

following a bench trial resulting in his conviction for attempted homicide, 

robbery, aggravated assault, possession of a firearm by a minor, and 

possession of a weapon.1 We affirm.

The relevant facts and procedural history are as follows. Appellant and 

Karron Tucker showed up at C.J. Clawson’s house to buy marijuana from 

him. See Notes of Testimony (N.T.), 11/2/2015, at 32. C.J. was hanging 

out with Tyler Grant at the time. See id. C.J. did not have enough 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 901(a), 3701(a)(1)(iii), 2702(a)(1), 6110.1(a), and 907(b), 

respectively.
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marijuana to sell them. Id. at 25, 33. C.J. contacted Gino Roland, Jr.2via 

twitter to inquire about purchasing additional marijuana. Id. at 26, 33. 

Gino agreed to sell C.J. one half ounce of marijuana. Id. at 116, 126. C.J. 

agreed to meet Gino at Carl Schmidt’s house. See id.

C.J. brought Appellant, Karron, and Tyler when he went to meet Gino 

at Carl’s house. Id. at 26. When the four of them arrived, C.J. remained on 

the porch while Gino and Carl walked into the alleyway on the side of the 

house with Appellant, Karron, and Tyler. Id. at 27, 57. Either Appellant or 

Karron took the marijuana without paying Gino. Id. at 29, 58, 134. 

Appellant and Karron tried to run away, but Gino and Carl chased them and 

caught up. Id. at 29-30. A fight ensued. Id. at 30. Gino began wrestling 

with Karron. Id. at 46, 59-60, 132. Gino knocked Karron down onto the 

ground and was standing over top of him. Id. at 132. Appellant pulled a 

gun on Gino. Id. at 30-31, 59, 131-32. At the time of the incident, 

however, Appellant was ineligible to carry a concealed firearm because of his 

age. Id. at 111.

Appellant aimed the gun at Gino’s face, and Gino heard a click, but it 

did not fire. Id. at 31, 136-138. Gino tried to wrestle Appellant for the gun. 

Id. at 60. Appellant got free, pulled the trigger, and shot Gino in the back 

from five feet away. Id. at 31, 60-61. Carl remained to help Gino as the 

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2 Trial court opinion refers to Gino Roland as “Roldan.”
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others fled. Id. at 53. Officer Jones found Gino lying on the sidewalk 

bleeding profusely. Id. at 11-12, 11-15. Gino suffered two fractured ribs, 

two fractured vertebrae, and two collapsed lungs. Id. at 121-123.

Following a non-jury trial, Appellant was found guilty and sentenced as 

described above.3 Appellant filed a post-sentence motion, which the court 

denied on May 31, 2016. Appellant timely filed a notice of appeal and courtordered Pa.R.A.P. 1925(b) statement. The court filed a responsive opinion.

On appeal, Appellant raises the following issues:

I. Whether the Commonwealth produced sufficient evidence 

to sustain a guilty verdict for criminal attempt – criminal 

homicide?

II. Whether the verdict is against the weight of the evidence 

presented?

III. Whether Pennsylvania’s sentencing guidelines as applied to 

a juvenile defendant violated the proportionality requirement of 

the Eighth Amendment?

Appellant's Br. at 3.

First, Appellant challenges the sufficiency of the evidence offered to 

prove criminal attempt to commit murder. In reviewing the sufficiency of 

the evidence, our standard of review is as follows:

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3 At the time of the underlying offenses, Appellant was fifteen years old. 

Appellant was automatically certified to adult criminal court. Thereafter, he 

filed a motion for decertification. The trial court record does not disclose 

disposition on the motion. Appellant has not raised the issue of his 

certification for trial as an adult on appeal.
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[W]hether 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. 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 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 

[trier] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

“A person commits an attempt when, with the intent to commit a 

specific crime, he does any act which constitutes a substantial step towards 

the commission of that crime.” 18 Pa.C.S. § 901(a). 

“For a defendant to be found guilty of attempted murder, the 

Commonwealth must establish specific intent to kill.” 

Commonwealth v. Geathers, 847 A.2d 730, 734 

(Pa.Super.2004). Therefore, “[i]f a person takes a substantial 

step toward the commission of a killing, with the specific intent 

in mind to commit such an act, he may be convicted of 

attempted murder.” In re R.D., 44 A.3d 657, 678 

(Pa.Super.2012). “The Commonwealth may establish the mens 

rea required for first-degree murder, specific intent to kill, solely 

from circumstantial evidence.” Id. Further, our Supreme Court 

has repeatedly determined that “[t]he use of a deadly weapon 

on a vital part of the body is sufficient to establish the specific 

intent to kill.” Commonwealth v. Rega, 933 A.2d 997, 1009 

(Pa. 2007); see also Commonwealth v. Cousar, 928 A.2d 

1025, 1034 (Pa. 2007) (“a specific intent to kill may be inferred 
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from the use of a deadly weapon on a vital part of the victim's 

body.”).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016), appeal 

denied, 143 A.3d 955 (Pa. 2017).

Here, Appellant argues that the Commonwealth failed to present 

evidence to prove that he possessed the specific intent to kill, i.e., to commit 

a “willful, deliberate, and premeditated killing.” Appellant's Br. at 12 

(quoting 18 Pa.C.S. § 2502). Appellant asserts that the Commonwealth 

provided no evidence of prior interactions between the victim and Appellant. 

He asserts that he did not initiate the physical altercation and maintains that 

he was trying to escape when he shot the victim.

As previously noted, a specific intent to kill may be proven by 

circumstantial evidence. Further, in the trial of a person for attempting to 

commit murder, “the fact that that person was armed with a firearm, used 

or attempted to be used, and had no license to carry the same, shall be 

evidence of that person's intention to commit the offense.” 18 Pa.C.S. § 

6104. 

Appellant argues that he did not initiate the physical altercation, which 

appears to assert that he acted in self-defense rather than pre-meditated 

the killing. However, there is no evidence that he presented this theory in 

pre-trial motions or as a defense at trial. Further, his argument does not 

articulate a challenge that the evidence was insufficient to infer a specific 

intent to kill. Thus, his argument is misplaced as it is more appropriately 

directed to the weight of the evidence presented at trial, as discussed infra.
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Here, the evidence presented established that Appellant attempted to 

shoot the victim in the face, but the gun failed to fire. Appellant tried to 

shoot the Victim again. As the trial court explained, he “took deliberate aim 

at the back of a man on the ground and fired a bullet into his spine.” TCO, 

8/26/2016, at 10. Appellant shot the victim at a close range, nearly killing 

him.4 The jury may infer specific intent to commit murder from the fact that 

Appellant took multiple attempts to shoot the Victim in vital parts of his 

body. Rega, 933 A.2d at 1009; Cousar, 928 A.2d at 1034; see also 

Commonwealth v. Harris, 817 A.2d 1033, 1039 (Pa. 2002). In addition, 

Appellant was illegally armed with a firearm at the time of the incident, 

which provides further evidence of intent. See 18 Pa.C.S. § 6104. Based on 

the totality of the circumstances, the evidence was sufficient for the jury to 

infer a specific intent to murder the victim beyond a reasonable doubt. 

Tucker, 143 A.3d at 964-65.

Second, Appellant contends that the verdict was against the weight of 

the evidence. Appellant reasserts that he was trying to escape from the 

victim, rather than kill him. Further, Appellant claims that the factfinder 

relied on contradictory and inconsistent testimony. Appellant argues that 

inconsistencies in the witness testimony made it “equally if not more likely 

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4 The bullet fractured two of the victim’s ribs propelling shards of bone into 

his left lung causing extensive lacerations and hemorrhaging. See N.T., 

1/28/2016, at 6. The victim suffered two fractured ribs, two collapsed 

lungs, and a fractured vertebrae from the bullet path. Id. 
J-S16021-17

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that [Appellant] was attempting to effectuate his escape from the incident 

when he shot the victim, and was not trying to kill him.” Appellant's Br. at 

13-14. 

In assessing a claim that the verdict was against the weight of the 

evidence, this Court will not substitute its judgment for that of the factfinder, 

which is free to assess the credibility of witnesses and to believe all, part, or 

none of the evidence presented. Commonwealth v. DeJesus, 860 A.2d 

102 (Pa. 2004); Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) 

(“[A]n appellate court is barred from substituting its judgment for that of the 

finder of fact.” (citing Commonwealth v. Pronkoski, 445 A.2d 1203, 1206 

(1982)). 

“When the challenge to the weight of the evidence is predicated 

on the credibility of trial testimony, our review of the trial court's 

decision is extremely limited. Generally, unless the evidence is 

so unreliable and/or contradictory as to make any verdict based 

thereon pure conjecture, these types of claims are not 

cognizable on appellate review.” Commonwealth v. Rossetti, 

863 A.2d 1185, 1191 (Pa. Super. 2004) (citation omitted). 

“Moreover, where the trial court has ruled on the weight claim 

below, an appellate court's role is not to consider the underlying 

question of whether the verdict is against the weight of the 

evidence.” Commonwealth v. Champney, 832 A.2d 403, 408 

(Pa. 2003). “Rather, appellate review is limited to whether the 

trial court palpably abused its discretion in ruling on the weight 

claim.” Id.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007). 

Further, this Court will not reverse a verdict unless it is so contrary to the 

evidence as to shock one’s sense of justice. Commonwealth v. Giordano, 

121 A.3d 998, 1007 (Pa. Super. 2015).
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Appellant’s argument fails to reveal any inconsistencies in testimony 

that would affect the overall outcome of the case, and his contention that 

the trial court incorrectly weighed his own testimony is merely self-serving. 

Here, multiple witnesses established that Appellant brandished a firearm, 

without a license to carry it, and, while standing a short distance away from 

the victim, shot the victim in the back. In light of this ample evidence, the 

court’s verdict certainly did not shock one’s sense of justice. Giordano, 121 

A.3d at 1007. Thus, the trial court did not commit a palpable abuse of 

discretion in denying Appellant’s weight claim. Trippett, 932 A.2d at 198.

Next, Appellant contends that the Pennsylvania sentencing guidelines 

violate the proportionality requirement of the Eighth Amendment of the U.S. 

Constitution. Appellant's Br. at 17-20; 42 Pa.C.S. § 2154 (directing the 

sentencing commission to adopt guidelines); 204 Pa. Code § 303.11 

(referencing the purpose of the guidelines).5 However, Appellant asserts 

that the guidelines’ primary focus on retribution does not adequately take 

into account the evolution of recent United States Supreme Court precedent 

recognizing the diminished culpability for juveniles. Appellant's Br. at 20 

(suggesting that the only safeguard against imposition of an unconstitutional 

sentence is the trial court’s discretion). Thus, Appellant concludes that the 

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5 Although Appellant cites a single section of the guidelines, his challenge 

applies to the guidelines in their entirety. See 204 Pa. Code §§ 303.1-

.18(c).
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sentence imposed upon him was unconstitutional.

Duly enacted legislation carries a strong presumption of 

constitutionality. Commonwealth v. Turner, 80 A.3d 754, 759 (Pa. 2013). 

The General Assembly does “not intend to violate the constitution of the 

United States or of this Commonwealth when promulgating legislation.” 

Commonwealth v. Baker, 78 A.3d 1044, 1050 (Pa. 2013) (quoting 1 

Pa.C.S. § 1922(3)). 

In conducting our review, we are guided by the principle that 

acts passed by the General Assembly are strongly presumed to 

be constitutional, including the manner in which they were 

passed. Thus, a statute will not be found unconstitutional unless 

it clearly, palpably, and plainly violates the Constitution. If there 

is any doubt as to whether a challenger has met this high 

burden, then we will resolve that doubt in favor of the statute's 

constitutionality.

Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal 

quotation marks and citations omitted). “As the constitutionality of a statute 

presents a pure question of law, our standard of review is de novo and our 

scope of review is plenary.” Commonwealth v. Lawrence, 99 A.3d 116, 

118 (Pa. Super. 2014) (citing Turner, supra).

The Eighth Amendment to the Federal Constitution states that 

“[e]xcessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted.” 6 U.S.

CONST. amend. VIII. The Eighth Amendment is unique in 

constitutional jurisprudence because it “must draw its meaning 

from the evolving standards of decency that mark the progress 

of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 

(1958) (plurality). “[T]he Eighth Amendment's protection 

against excessive or cruel and unusual punishments flows from 

the basic ‘precept of justice that punishment for [a] crime should 

be graduated and proportioned to [the] offense.’” Kennedy v. 
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Louisiana, 554 U.S. 407, 419 (2008), quoting Weems v. 

United States, 217 U.S. 349, 367 (1910). “By protecting even 

those convicted of heinous crimes, the Eighth Amendment 

reaffirms the duty of the government to respect the dignity of all 

persons.” Hall v. Florida, ___ U.S. ___, 134 S.Ct. 1986, 1992 

(2014) (citation omitted).

Lawrence, 99 A.3d at 119 (parallel citations omitted).

It is settled that juvenile defendants are less culpable for criminal 

behavior than adults. Roper v. Simmons, 125 S. Ct. 1183, 1195 (2005) 

(recognizing juveniles’ lack of maturity, susceptibility to negative influences,

and the transitory nature of their personality traits). The recognition of this 

diminished culpability has led the United States Supreme Court to conclude 

that certain categories of punishments are violative of the Eighth 

Amendment. For example, in Roper, the Court abolished the death penalty 

for juvenile offenders under eighteen. Id. at 1200. Thereafter, the Court 

prohibited imposition of life without parole upon juveniles for non-homicide 

crimes. Graham v. Florida, 130 S. Ct. 2011, 2030 (2010) (instructing that 

States afford juvenile defendants convicted of non-homicide crimes “some 

meaningful opportunity to obtain release based on demonstrated maturity 

and rehabilitation”). Most recently, the Supreme Court prohibited 

mandatory life without parole sentences for juveniles convicted of homicide. 

Miller v. Alabama, 132 S. Ct. 2455, 2646 (2012).

However, this Court has declined to expand the categories of 

punishment prohibited based upon the diminished culpability of youth. See

Lawrence, 99 A.3d at 122 (rejecting an argument to expand the categorical 
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prohibition recognized in Miller to the sentencing scheme set forth in 18 

Pa.C.S. § 1102, which mandates a minimum thirty-five year sentence for 

juveniles convicted of first-degree murder). Certainly here, where the 

sentence imposed – thirteen to twenty-six years - is far less severe than 

those considered by the Supreme Court or by this Court, no such categorical 

prohibition is warranted. 

Moreover, considering that this Court has determined previously that 

sentences far more severe than that imposed upon Appellant provide a 

meaningful opportunity for release, the Supreme Court’s general 

admonition, articulated in Graham, is not at issue here. Id. at 124 

(affirming a forty-five year to life sentence for juvenile convicted of firstdegree murder); see also Commonwealth v. Brooker, 103 A.3d 325, 

339-40 (Pa. Super. 2014) (concluding that a thirty-five year sentence for 

first-degree murder was not equivalent to a life sentence, provided a 

meaningful opportunity for release, and therefore did not violate the Eighth 

Amendment). Thus, despite diminished culpability, it remains constitutional 

that juveniles convicted of serious crimes may receive significant periods of 

incarceration. Lawrence; Brooker. 

Finally, turning to the guidelines, we note the following. In directing 

the Sentencing Commission to adopt guidelines, the General Assembly 

required that sentencing recommendations be “consistent with the 

protection of the public, the gravity of the offense as it relates to the impact 
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on the life of the victim and the community and the rehabilitative needs of 

the offender.” 42 Pa.C.S. § 2154(a). Section 303.11(a) reflects these 

requirements, defining the purpose of the guidelines in relevant part:

The sentencing guidelines provide sanctions proportionate to the 

severity of the crime and the severity of the offender's prior 

conviction record. This establishes a sentencing system with a 

primary focus on retribution, but one in which the 

recommendations allow for the fulfillment of other sentencing 

purposes including rehabilitation, deterrence, and incapacitation.

204 Pa.Code § 303.11(a).

The guidelines’ express declaration that sentences must be 

proportionate to the severity of the crime and that rehabilitation of the 

offender is a fundamental purpose undermines Appellant’s singular focus on 

the retributive nature of criminal sanctions. Thus, in our view, Appellant’s 

argument is not persuasive.

Moreover, the guidelines set forth a framework, to be considered by 

the sentencing court in fashioning an individualized sentence. See

Commonwealth v. Walls, 926 A.2d 957, 962-963 (Pa. 2007); see also 42 

Pa.C.S. §§ 2154(a), 9721; see generally 204 Pa.Code §§ 303.1-.18(c). To 

be clear, while the court must consider the guidelines, the court is also 

afforded broad discretion in sentencing matters, as it is in the best position 

to evaluate the individual circumstances before it. Walls, 926 A.2d at 961. 

Thus, the guidelines “merely inform the sentencing decision.” Id. at 962.

Appellant suggests that this broad discretion is insufficient to protect 

the juvenile defendant. We disagree. The advisory nature of the guidelines 
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ensures, as constitutionally required, that the diminished culpability of 

juvenile defendants is properly considered. In exercising its discretion, 

“[t]he sentencing court must impose a sentence that is appropriate in light 

of the individualized facts of the underlying incident.” Commonwealth v. 

Johnson, 873 A.2d 704, 709 (Pa. Super. 2005); see also Commonwealth 

v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002), appeal denied, 868 A.2d 1198 

(2005), cert. denied, 125 S. Ct. 2984 (2005). The court must consider 

aggravating and mitigating circumstances. “In particular, the court should 

refer to the defendant's prior criminal record, his age, personal 

characteristics and his potential for rehabilitation.” Commonwealth v. 

Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (quoting Griffin 804 A.2d at 

10) (emphasis added), appeal denied, 76 A.3d 538 (Pa. 2013); 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)). 

For these reasons, we conclude that the sentencing guidelines, as 

applied to Appellant, do not violate the proportionality requirement of the 

Eighth Amendment. Accordingly, no relief is due.6

Judgment of sentence affirmed.

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6 To the extent Appellant suggests that the court did not adequately account 

for his youth and his “minimal” prior interactions with the juvenile justice 

system, such a claim is more appropriately formulated as a challenge to 

discretionary aspects of his sentence, i.e., that the court failed to consider 

youthfulness as a mitigating factor. Appellant has not preserved such a 

claim, and it is therefore waived.
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Judge Moulton joins.

Judge Platt concurs in result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2017