J-S19023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ADRIAN MCCALL

Appellant No. 2277 EDA 2014

Appeal from the Judgment of Sentence June 16, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006747-2012

BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 10, 2015

In this direct appeal, Adrian McCall challenges the weight of the 

evidence underlying his conviction for third degree murder1and the 

sufficiency of the evidence underlying his conviction for possession of an 

instrument of crime (“PIC”).2 Finding no merit in these arguments, we 

affirm.

We begin by summarizing the relevant procedural history. A jury 

found McCall guilty of third degree murder and PIC. The trial court severed 

the charge of possession of firearms by prohibited person (“possession by 

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1 18 Pa.C.S. § 2502(c).

2 18 Pa.C.S. § 907.
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prohibited persons”).3 Following the jury verdict, the court, sitting non-jury, 

found McCall guilty of possession by prohibited persons. McCall did not 

appeal his conviction for this offense. On June 16, 2014, the trial court 

sentenced McCall to consecutive terms of imprisonment of 20-40 years for 

third degree murder, 41⁄2-10 years for possession by prohibited persons, and 

1-2 years for PIC, an aggregate sentence of 251⁄2-52 years’ imprisonment. 

On June 26, 2014, McCall filed a timely post-sentence motion, which 

the trial court denied on July 8, 2014. On August 6, 2014, McCall filed a 

timely notice of appeal. On August 11, 2014, the trial court ordered McCall 

to submit a Pa.R.A.P. 1925(b) statement. On September 11, 2014, McCall 

filed an untimely statement. On September 25, 2014, McCall filed a motion 

to reinstate appeal rights nunc pro tunc. On September 26, 2014, the trial 

court granted defendant’s motion and accepted his Pa.R.A.P. 1925(b) 

statement as timely filed. On October 6, 2014, the trial court filed a 

Pa.R.A.P. 1925(a) opinion.

The trial court accurately summarized the evidence adduced during 

trial as follows:

On February 6, 2012, at approximately 10:20 a.m., 

Annie May Hollomon and her neighbor, Lonnie 

Workman, were having a conversation outside on the 

5500 block of Blakemore Street. During their 

conversation, Desmond Jones drove down the block 

____________________________________________

3 18 Pa.C.S. § 6105.
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with his girlfriend, Nekisha Dotson. Jones stopped his 

vehicle in the middle of the street and waited for his 

mother, Stephanie Jones, to come out of her home 

at 5558 Blakemore Street. Workman approached the 

vehicle and began speaking to Desmond Jones 

through the car window. Workman explained to 

Jones that although he had a problem with Jones[’] 

cousin, defendant Adrian McCall, Workman did not 

have a problem with Jones. N.T. 2/25/14 at 50-57; 

N.T. 2/26/14 at 161, 182, 218.

While Workman and Jones were speaking, [McCall] 

walked out of his home at 5558 Blakemore Street. 

[McCall] and Workman began to argue. Workman 

invited [McCall] to box telling [McCall] to ‘come on 

down off of those steps’ and threatening to ‘whip 

[his] ass.’ [McCall] pulled a silver gun from his 

waistband and showed it to Workman, who said ‘I 

ain’t scared of no gun.’ At the time, [McCall] was 

standing on the top step of his porch about seven to 

eight feet away from Workman. Workman turned his 

head to the side to spit when [McCall] fired at least 

four shots at Workman, striking him once in the 

abdomen. [McCall] then ran inside his house. 

Workman fell on the sidewalk where he was 

standing. Holloman called 911 after which the police 

arrived and transported Workman to Albert Einstein 

Medical Center. N.T. 2/25/14 at 57-73, 83, 117-119; 

N.T. 2/26/14 at 12, 93-94, 189-198, 229, 247. 

On February 6, 2012, at 11:18 a.m., Workman was 

pronounced dead. According to Dr. Marlon Osbourne, 

the Assistant Medical Examiner, Workman suffered a 

gunshot wound to the left side of his mid to lower 

back which hit the small intestines, lacerated the left 

common iliac artery, and lodged in the pelvic cavity. 

Workman also suffered abrasions and lacerations to 

his chest, thighs, and legs caused by fragments from 

a projectile. N.T. 2/26/14 at 7, 12-19, 24-25.

There were five witnesses present on the 5500 block 

of Blakemore Street at the time of the shooting, all 

of whom provided formal statements to Philadelphia 

Police Officers within days of the incident. Hollomon, 
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Dotson, Davis and Desmond Jones stated that they 

observed the shooting and identified [McCall] as the 

shooter. Stephanie Jones said she heard a gunshot 

but did not witness the shooting. At trial, Davis, 

Dotson and Desmond Jones contradicted their 

statements to police and testified that they did not 

witness the shooting. N.T. 2/25/14 at 75-83; N.T. 

2/26/14 at 44, 78, 106, 190, 197, 201-204, 208, 

260-266, 280, 285, 293, 300-301.

According to Taleta Davis and Crystal Fanis, 

Workman had a problem with [McCall] because 

[McCall] stole an Xbox from Workman’s friend in 

December of 2011; they had recently been fighting 

about it. N.T. 2/25/14 at 168-171; N.T. 2/26/14 at 

112. Police Officer Gary Guaraldo of the Philadelphia 

Crime Scene Unit recovered one .38/.357 caliber 

bullet jacket from the scene. The medical examiner 

recovered one bullet jacket fragment from the 

victim’s clothing, caliber indeterminable, and one 

.38/.357 caliber bullet from the victim’s body. 

According to Officer Welsh, an expert in firearms 

identification, these bullets displayed insufficient 

corresponding markings to determine whether or not 

they were fired from the same gun. N.T. 2/25/14 at 

187-189, 204, 229-238.

On February 6, 2012, Detective Crone obtained an 

arrest warrant for [McCall]. On February 24, 2012, at 

approximately 3:10 p.m., Officer Lovina and Officer 

Rodriguez arrested [McCall] on the 6300 block of 

Theodore Street in Southwest Philadelphia. N.T. 

2/27/14 at 30. 

Pa.R.A.P. 1925(a) Opinion, pp. 2-4.

McCall raises two issues in this appeal: (1) whether his conviction for 

third degree murder is supported by the weight of the evidence, and (2) 

whether the evidence was sufficient to prove that he possessed an 

instrument of crime with intent to employ it criminally.
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The law pertaining to weight of the evidence claims is well-settled. The 

weight of the evidence is a matter exclusively for the finder of fact, 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, 

1273–74 (Pa.Super.2005). 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.

On appeal, “our 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). 

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 A.2d at 1273–74.

McCall contends that the weight of the evidence shows that he was 

justified in using deadly force. We disagree. The use of deadly force is 

justified only if the actor reasonably believes it is necessary to protect 
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himself from, inter alia, death or serious bodily injury. 18 Pa.C.S. § 

505(b)(2);4 Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa.2012). 

The Commonwealth may defeat defendant’s claim of self-defense by proving 

either that the “slayer was not free from fault in provoking ... the difficulty 

which resulted in the slaying or that the slayer’s belief that he was in 

“imminent danger of death or great bodily harm” was unreasonable. 

Sepulveda, 55 A.3d at 1124; 18 Pa.C.S. § 505(b)(2)(i). Verbal taunts do 

not constitute a reasonable basis for shooting someone to death. 

Commonwealth v. Mouzon, 53 A.3d 738, 751 (Pa.2012).

Here, the trial court acted within its direction in denying McCall’s 

challenge to the weight of the evidence. The Commonwealth introduced 

credible evidence showing McCall provoked the confrontation. The victim, 

while standing on the street, did not notice McCall standing on his porch. 

N.T. 2/25/2014, p. 64. It was not until McCall retrieved the murder weapon 

from inside his house and said “something smart” to the victim that an 

argument began. Id. at 57, 65. Given this testimony, the trial court 

properly found that McCall was not “free from fault.” Sepulveda, 55 A.3d at 

1124.

____________________________________________

4 Although the legislature amended section 505 in 2011, the amendments 

are not relevant to this case. Neither the former version of section 505 nor 

the present version permit the use of deadly force where, as in this case, 

there is no reasonable belief of imminent danger and therefore no necessity 

to resort to deadly force.
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Additionally, the trial court acted within its discretion by concluding 

that McCall did not reasonably believe he was in imminent danger of serious 

bodily injury or death. Commonwealth v. Smith, 97 A.3d 782, 787 

(Pa.Super.2014). The “imminent danger” test requires the trial court to 

consider both subjective and objective factors. Subjectively, a claim of selfdefense cannot succeed unless the defendant “acted out of an honest, bona 

fide belief that he was in imminent danger.” Id. In determining the 

objective reasonableness of the use of deadly force, the trial court considers 

“whether [the victim] was armed, any actual physical contact, size and 

strength disparities between the parties, prior dealings between the parties, 

threatening or menacing actions on the part of the [victim] and general 

circumstances surrounding the incident.” Id. at 788. 

Here, McCall did not shoot the victim to protect himself from injury —

he was settling an old score. Shortly before the murder, McCall stated that 

he was “getting tired of that bigheaded, light-skinned pussy in the middle of 

the block on Blakemore,” and that McCall was going to “fuck [the victim] 

up.” N.T. 2/25/2014, p. 143. These words showed that McCall planned to 

bring his verbal feud with the victim to a violent end. Moreover, during the 

confrontation, McCall did not act like he believed he was in danger of 

imminent bodily injury or death. He never tried to take shelter in his house 

or call for help. Instead, he pulled out a gun, shot the unarmed victim, and 

fled. Even if McCall subjectively believed he was in imminent danger of 
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serious bodily injury or death, this belief was not objectively reasonable. 

The victim was unarmed. N.T. 2/25/2014, p. 70; N.T., 2/26/2014, p. 95. A 

flight of stairs separated McCall from the victim. N.T. 2/25/2014, p. 70. 

McCall initiated the confrontation. N.T. 2/25/2014, 57, 137-38). Although 

some evidence suggests that the victim was larger than McCall, the fact 

remains that the victim was not physically menacing McCall. N.T. 2/25/2014, 

p. 70). At most, he was verbally taunting him, which is not sufficient 

provocation for the use of deadly force. Mouzon, 53 A.3d at 751. In fact, 

eyewitness testimony indicates that not only was McCall on his porch and 

the victim on the sidewalk, but the victim had physically turned away when 

McCall shot him. N.T. 2/25/2014, p. 58. The medical examiner’s testimony 

corroborates this conclusion. The bullet entered the victim at a downward 

angle on the left, rear part of his abdomen. N.T. 2/26/2014, p. 19. 

For these reasons, we reject McCall’s challenge to the weight of the 

evidence underlying his conviction for third degree murder.

McCall next contends that the evidence was insufficient to support his 

conviction for PIC. We disagree. Our standard of review for challenges to 

the sufficiency of the evidence is well-settled:

[W]hether[,] viewing all the evidence admitted at trial in 

the light most favorable to the [Commonwealth as 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 
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preclude every possibility of innocence. Any doubts 

regarding a defendant’s guilt may be resolved by the factfinder 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.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations 

omitted).

18 Pa.C.S. § 907 provides: “A person commits a misdemeanor of the 

first degree if he possesses any instrument of crime with intent to employ it 

criminally.” McCall argues that the evidence is insufficient to demonstrate 

the element of intent to employ the gun criminally against the victim. He 

argues in his brief that he merely acted in self-defense. The evidence 

summarized above demonstrates, however, that McCall brutally and 

maliciously shot the unarmed victim in cold blood, and that he did not act in 

self-defense. Accordingly, McCall’s challenge to the sufficiency of the 

evidence is devoid of merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015