J-A23006-14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

 Appellee :

:

 v. :

:

ANTHONY HARVEY, :

:

 Appellant : No. 1192 WDA 2013 

Appeal from the Judgment of Sentence July 3, 2013, 

Court of Common Pleas, Cambria County, 

Criminal Division at No. CP-11-CR-0000167-2012 

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 19, 2014 

 Anthony Harvey (“Harvey”) appeals from the July 3, 2013 judgment of 

sentence entered by the Cambria County Court of Common Pleas for his 

involvement in the shooting death of J-Quan Lewis (“Lewis” or “the victim”). 

We affirm. 

 The trial court summarized the facts adduced at the joint trial held for 

Harvey and his co-defendant, Marquis Neal (“Neal”), as follows: 

[A]t approximately 11 p.m. on September 30, 

2011[,] Harvey and Lewis were drinking at Edder’s 

Den bar in the Oakhurst section of Johnstown. 

Harvey and Lewis got into an argument at the bar 

and were told to ‘take it outside.’ The pair, along 

with other patrons, left the bar and a fight ensued 

outside the building with Lewis getting the better of

Harvey. Neal arrived during the fight and along with 

others[,] broke up the fight. Neal assisted the beaten 

Harvey into a minivan and the two left the bar. 
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The following morning Neal awoke at approximately 

10 a.m. took two Percocet pills and one Xanax pill, 

none of which were prescribed to him, and drank 

approximately one-half of a 750ml bottle of vodka. 

He then left the apartment he was staying at in the 

Oakhurst Homes and went in search of marijuana. 

He made several stops at various apartments in the 

Oakhurst Homes but was unable to secure any 

drugs. 

At approximately 2 p.m.[,] while Neal was walking 

through the Oakhurst Homes he saw Lewis and 

Hakeem Horton (Horton) walking towards him. As 

they approached[,] Neal asked Lewis if they were 

[alright] from the night before and if there were any 

hard feelings. Lewis either said ‘no we aren’t’ and 

attempted to shoulder past Neal or simply attempted 

to shoulder past him[,] at which point Neal drew a 

handgun from his windbreaker and fired at Lewis 

striking him in the upper right arm with the round 

then entering and eventually exiting Lewis’ chest. 

Lewis turned to run and Neal pursued him firing 

several more shots, one of which struck Lewis in the 

back, passed through his heart, and exited through 

his chest. At this point Lewis fell and Neal walked up 

to his prone body and rolled him over. Lewis said 

‘please no’ at which time Neal fired again with the 

third round entering Lewis’ head. Neal then knelt 

beside Lewis and searched his pockets. Neal then 

fled into the street where he got into a parked 

minivan driven by Harvey and the two fled the 

scene. 

The minivan was eventually recovered in Pittsburgh, 

Pennsylvania several days later. Harvey was 

apprehended in Chester, Pennsylvania on November 

24, 2011, and eventually returned to Johnstown 

where he was formally charged as an accomplice to 

Lewis’ murder. Neal was apprehended on March 6, 

2012, in Gloucester County, New Jersey when during 

a routine stop he provided false information to police

there. While being transported to the Gloucester 
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County police department[,] Neal was informed he 

would be fingerprinted and those prints used to 

identify him[,] at which point he informed the 

officers he was wanted by the United States Marshals 

for murder. Neal was eventually extradited to 

Pennsylvania and formally charged in connection 

with Lewis’ murder. 

During the trial[,] the Commonwealth presented 

telephone records of cell phones that were identified 

as being used by Neal and Harvey. These records 

revealed 73 text messages or phone calls between 

the two on September 30, 2011[,] and 23 text 

messages or phone calls between them during the 

early morning and early afternoon of October 1, 

2011. There were five contacts between noon and 1 

p.m. that day and the final contact between the 

phones was 28 minutes before the shooting. Based 

on these contacts the Commonwealth contended that 

Neal and Harvey had conspired to kill Lewis. Neal 

argued that he did not intend to kill Lewis[,] but 

when Lewis shouldered past him he panicked and 

thought Lewis meant to attack him resulting in Neal 

defending himself with the [handgun]. Neal argued 

that the combination of alcohol and drugs rendered 

him incapable of forming the specific intent to 

commit murder and explained his state of mind and 

mistaken belief that Lewis intended to attack him. 

Trial Court Opinion, 10/4/13, at 3-5. 

 After a six-day trial, the jury returned a verdict finding Neal guilty of 

third-degree murder, flight to avoid apprehension, and two counts of 

aggravated assault. The jury convicted Harvey of voluntary manslaughter 

and one count of aggravated assault as Neal’s accomplice, and flight to avoid 
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apprehension and hindering apprehension as a principal actor.1

 The trial 

court sentenced Harvey on March 5, 2013 to an aggregate term of 91⁄2 to 25 

years of incarceration. On March 15, 2013, Harvey filed a post-sentence 

motion challenging the trial court’s ruling allowing the Commonwealth to 

amend the criminal information during trial; the sufficiency of the evidence 

to convict him of voluntary manslaughter; the sufficiency of the evidence to 

prove that he was Neal’s accomplice; the trial court’s ruling permitting 

evidence of a prior bad act, i.e., the fight between Harvey and the victim the 

night before the victim’s death; and the sufficiency of the evidence to 

convict him of hindering apprehension and flight to avoid apprehension. 

Following argument, the trial court denied the motion on July 3, 2013. 

 On July 22, 2013, Harvey filed a timely notice of appeal, followed by a 

court-ordered concise statement of errors complained of on appeal. The trial 

court issued a responsive opinion pursuant to Pa.R.A.P. 1925(a) on October 

4, 2013. 

 On appeal, Harvey raises the following issues for our review: 

I. Whether the court erred in denying Appellant 

Harvey’s petition for a writ of habeas corpus

regarding [Harvey’s] alleged accomplice liability in 

the case? 

 

1

 18 Pa.C.S.A. §§ 2503(a), 2702(a)(1), 306(b), 5126(a), 5105(a)(2). The 

jury acquitted Harvey of first-degree murder (id. § 2502(a)), third-degree 

murder (id. § 2502(c)), and aggravated assault with a deadly weapon (id. § 

2702(a)(4)). 
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II. Whether the court erred in allowing the 

Commonwealth to present evidence under Pa.R.E. 

404(b), i.e., evidence of the fight? 

III. Whether the court erred in allowing the 

Commonwealth’s motion to amend [the] information 

at the end of trial? 

IV. Whether the court erred in allowing the jury to 

convict [Harvey] of voluntary manslaughter as an 

accomplice when the principal, [] Neal, was not 

convicted of voluntary manslaughter? 

V. Whether the verdict of the jury was contrary to the 

weight and sufficiency of the evidence presented by 

the Commonwealth? 

Harvey’s Brief at 6-7. 

 We begin with Harvey’s first issue assailing the trial court’s denial of 

his writ of habeas corpus. Our review of the argument raised reveals that he 

is actually challenging the sufficiency of the evidence to prove that he acted 

as Neal’s accomplice.2

 See id. at 11-15. As Harvey included a claim 

challenging the sufficiency of the evidence in both his 1925(b) statement 

 

2

 A claim that the trial court erred by denying a writ of habeas corpus

because the evidence presented at the preliminary hearing was insufficient 

to hold the charge(s) over for court is not reviewable once the defendant has 

been adjudged guilty. Commonwealth v. Lee, 662 A.2d 645, 650 (1995); 

see also Commonwealth v. Melvin, __ A.3d __, 2014 WL 4100200, *24 

(Pa. Super. Aug. 21, 2014) (“Once a defendant has gone to trial and has 

been found guilty of the crime or crimes charged, [...] any defect in the 

preliminary hearing is rendered immaterial.”). Therefore, even if Harvey 

had presented an argument in support of his habeas corpus claim, it would 

not be reviewable by this Court. 
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and his statement of questions involved section of his appellate brief, we will 

review this issue.3

 “Whether sufficient evidence exists to support the verdict is a question 

of law; our standard of review is de novo and our scope of review is 

plenary.” Commonwealth v. Murray, 83 A.3d 137, 151 (Pa. 2013). We 

review the evidence in the light most favorable to the verdict winner to 

determine whether there is sufficient evidence to allow the jury to find every 

element of a crime beyond a reasonable doubt. Commonwealth v. Cahill, 

95 A.3d 298, 300 (Pa. Super. 2014). 

In applying the above test, we may not weigh the 

evidence and substitute our judgment for the factfinder. 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 finder of fact while passing upon the 

credibility of witnesses and the weight of the 

 

3

 The trial court decided the question of whether it erred by denying his writ 

of habeas corpus. See Trial Court Opinion, 10/4/13, at 9-11. Because of 

the standard by which we review a sufficiency claim, this does not hamper 

our review. Moreover, it is well-settled law that we may affirm a trial court’s 

decision on any ground, “even where those grounds were not suggested to 

or known by the trial court.” Commonwealth v. Gatlos, 76 A.3d 44, 62 

n.14 (Pa. Super. 2013).
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evidence produced, is free to believe all, part or none 

of the evidence. 

Id. (citation omitted). 

 “A person is legally responsible for the conduct of another person 

when [...] he is an accomplice of such other person in the commission of the 

offense.” 18 Pa.C.S.A. § 306(b)(3). The law defines an accomplice as 

follows: 

A person is an accomplice of another person in the 

commission of an offense if: 

(1) with the intent of promoting or facilitating the 

commission of the offense, he: 

(i) solicits such other person to commit it; or 

(ii) aids or agrees or attempts to aid such other 

person in planning or committing it; or 

(2) his conduct is expressly declared by law to 

establish his complicity. 

Id. § 306(c). 

 Proving a defendant’s guilt as an accomplice requires the satisfaction 

of a two-prong test: (1) there must be evidence to show that the defendant 

“intended to facilitate or promote the underlying offense” and (2) there must 

be evidence that the defendant “actively participated in the crime or crimes 

by soliciting, aiding, or agreeing to aid the principal[.]” Commonwealth v. 

Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005) (citations omitted). 

“Both requirements may be established wholly by circumstantial evidence. 
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Only the least degree of concert or collusion in the commission of the 

offense is sufficient to sustain a finding of responsibility as an accomplice. No 

agreement is required, only aid.” Id. (internal citations and quotation 

omitted). 

 Viewed in the light most favorable to the Commonwealth as the verdict 

winner, the record reflects the following. The night before the shooting, 

Harvey and the victim engaged in a physical fight, which the victim won. 

N.T., 1/9/13 (afternoon), at 78, 81-82. Harvey left with Neal in a maroon 

van. Id. at 82-83. Harvey and Neal communicated 73 times by cellphone 

through voice calls and text messages that night and on the day of the 

murder.4

 N.T., 1/11/13 (afternoon), at 100. The last such communication 

took place only 28 minutes before Neal shot the victim. Id. at 102. 

Immediately after shooting the victim, Neal ran to Harvey’s waiting car – the 

maroon van – and the two sped off. N.T., 1/9/13 (afternoon), at 142-44; 

 

4

 Although the cellphone numbers in question were not registered in 

Harvey’s or Neal’s name, the circumstantial evidence presented supports a 

finding that these were their phone numbers. Witnesses who had used the 

numbers to call and speak with Harvey and Neal, respectively, provided the 

phone numbers to the police. N.T., 1/11/13 (afternoon), at 54, 90. Jeremy 

Rogers, who was friends with Neal, Harvey and the victim, testified that he 

knew Harvey’s phone to be registered to a person named Amanda Keiper, 

which was the name of the person to which Harvey’s alleged number was in 

fact registered. Id. at 54, 64. Police were unable to locate the person to 

whom Neal’s phone was registered, “Johnny Stroub,” and Detective Julie 

Wagner testified that the given address of the named subscriber was at the 

Galleria Mall. Id. at 98. Furthermore, “Johnny Stroub” had an email 

address of NoPressure@gmail.com, and Neal’s girlfriend had a tattoo that 

said “no pressure” on her neck. Id. at 104; N.T. 1/9/13 (afternoon), at 14. 
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N.T., 1/10/13, at 156, 201. The van belonged to Harvey’s girlfriend, Lisa 

Carothers, who had let him use the van that day approximately an hour or 

two before the shooting to go to the grocery store for her, but neither he nor 

the van returned to her house that day. N.T., 1/10/13, at 68, 70, 227. 

Harvey abandoned the van in Pittsburgh. Id. at 227; N.T., 1/11/13 

(morning), at 32. Police ultimately located Harvey in Chester, Pennsylvania 

almost two months after the shooting. N.T., 1/12/13, at 45. 

 The evidence, although circumstantial, adequately proves that Harvey 

aided Neal with the intent of promoting the murder. See Kimbrough, 872 

A.2d at 1251; see also Commonwealth v. Causey, 833 A.2d 165, 173 

(Pa. Super. 2003) (evidence that the appellant was the getaway driver when 

his brother shot the victim is sufficient to prove that the appellant was his 

brother’s accomplice in the shooting). As such, no relief is due. 

 In his second issue on appeal, Harvey contends that the trial court 

erred by permitting the Commonwealth to present evidence of the fight 

between Harvey and the victim the night before the shooting because, 

according to Harvey, it was prohibited by Pennsylvania Rule of Evidence 

404(b). Harvey’s Brief at 15-16. Other than a passing reference to Rule 

404(b), without including its text, Harvey cites to no law in support of this 

contention. Overlooking his clear violation of Rule 2119(a) of the 

Pennsylvania Rules of Appellate Procedure, we find this issue meritless. 
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 Rule 404(b) precludes the use of other crimes, wrongs, or acts to show 

that the defendant acted in conformity when committing the instant crime. 

Pa.R.E. 404(b)(1). Such evidence may be admissible, however, for other 

purposes, including but not limited to “proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity or absence of mistake or accident.” 

Pa.R.E. 404(b)(2). 

 The trial court found that the fight was properly admitted as, inter alia, 

proof of motive for the murder. Trial Court Opinion, 10/4/13, at 13. We 

agree.5

To be admissible to show intent or motive, the 

evidence must give sufficient ground to believe that 

the crime currently being considered grew out of or 

was in any way caused by the prior set of facts and 

circumstances. There must be a logical connection 

between the prior incident and the crime for which 

the accused is being tried. Important factors to be 

considered in making this determination include the 

proximity in time between the incidents; the 

similarity in the circumstances surrounding the 

incidents; and whether evidence of the prior crime is 

necessary to rebut the accused’s evidence or 

contention of accident, mistake or lack of required 

intent. 

Commonwealth v. Camperson, 612 A.2d 482, 484 (Pa. Super. 1992) 

(citations omitted). 

 

5

 “The admission of evidence is committed to the sound discretion of the 

trial court, and our review is for an abuse of discretion.” Commonwealth 

v. Valcarel, 94 A.3d 397, 398 (Pa. Super. 2014) (citation omitted).
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 As stated above, the record reflects that Harvey and the victim fought 

the night before the murder and that Harvey was on the losing end of that 

fight. N.T., 1/9/13 (afternoon), at 78, 81-82. Harvey claimed that he was 

completely uninvolved in the victim’s death, and just happened to be at 

Oakhurst Homes when Neal shot the victim; Neal claimed that he shot the 

victim out of fear for his own life – believing that the victim was reaching for 

a gun. See N.T., 1/12/13, at 121, 123-24. 

There is no question that the victim’s murder could be viewed as 

having been precipitated by the victim beating up Harvey the night before – 

a possible revenge scenario. The incidents were close in time (only 14 hours 

apart) and the fight was necessary to prove Neal’s intent (and thus, Harvey’s 

intent as his accomplice) in committing the killing. We therefore find no 

abuse of discretion in the trial court’s determination that the evidence was 

admissible as proof of motive. 

 Next, Harvey asserts that the trial court erred by permitting the 

Commonwealth to amend the criminal information, changing the charges of 

aggravated assault from listing Harvey as an actor to an accomplice, on the 

last day of trial. Harvey’s Brief at 16-18. The trial court found that Harvey 

was not prejudiced by the amendment and is therefore due no relief. Trial 

Court Opinion, 10/4/13, at 15. 

 Pennsylvania Rule of Criminal Procedure 564 permits the trial court to 

grant the Commonwealth’s motion to amend a criminal information “when 
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there is a defect in form, the description of the offense(s), the description of 

any person or any property, or the date charged, provided the information 

as amended does not charge an additional or different offense.” 

Pa.R.Crim.P. 564. If the trial court permits the Commonwealth to amend 

the information, “the court may grant such postponement of trial or other 

relief as is necessary in the interests of justice.” Id. “The purpose of Rule 

564 is to ensure that a defendant is fully apprised of the charges, and to 

avoid prejudice by prohibiting the last minute addition of alleged criminal 

acts of which the defendant is uninformed.” Commonwealth v. Mentzer, 

18 A.3d 1200, 1202 (Pa. Super. 2011) (quoting Commonwealth v. 

Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006)). We review this issue 

“with an eye toward its underlying purposes and with a commitment to do 

justice rather than be bound by a literal or narrow reading of the procedural 

rules.” Id. (citation omitted). Thus, we 

look to whether the appellant was fully apprised of 

the factual scenario which supports the charges 

against him. Where the crimes specified in the 

original information involved the same basic 

elements and arose out of the same factual situation 

as the crime added by the amendment, the appellant 

is deemed to have been placed on notice regarding 

his alleged criminal conduct and no prejudice to 

defendant results. 

Sinclair, 897 A.2d at 1222 (citation omitted). 
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 This Court has identified the following relevant factors to determine 

whether a defendant suffered prejudice as a result of the trial court’s grant 

of the Commonwealth’s motion to amend: 

(1) whether the amendment changes the factual 

scenario supporting the charges; (2) whether the 

amendment adds new facts previously unknown to 

the defendant; (3) whether the entire factual 

scenario was developed during a preliminary 

hearing; (4) whether the description of the charges 

changed with the amendment; (5) whether a change 

in defense strategy was necessitated by the 

amendment; and (6) whether the timing of the 

Commonwealth’s request for amendment allowed for 

ample notice and preparation. 

Mentzer, 18 A.3d at 1203 (citation omitted). 

 The record reflects that the Commonwealth filed its original criminal 

complaint on February 6, 2012, alleging, inter alia, that Harvey committed 

one count of aggravated assault as Neal’s accomplice. Criminal Complaint, 

2/6/12, at 3. On March 23, 2012, the Commonwealth charged Harvey by 

criminal information with one count of aggravated assault as the principal 

actor. Criminal Information, 3/23/12. The Commonwealth filed a motion to 

amend the information on January 4, 2013, which the trial court granted, 

resulting, in relevant part, in the addition of a second count of aggravated 

assault, with Harvey again listed as the principal actor. See Criminal 

Information, 1/7/13. It was not until the last day of trial, during the 

testimony of the Commonwealth’s final witness, that the Commonwealth 

sought to amend the information to list Harvey as an accomplice for the two 
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aggravated assault charges. See N.T., 1/12/13, at 48-52. The trial court 

granted the Commonwealth’s request, finding that Harvey was not 

prejudiced by the amendment. Id. at 70. 

 We agree with the trial court that Harvey suffered no prejudice by the 

amendment of the information. Harvey was on notice since the time the 

Commonwealth filed the criminal complaint in the beginning of 2012 that it 

was the Commonwealth’s theory that he acted as Neal’s accomplice in the 

victim’s murder and aggravated assault. The Commonwealth charged 

Harvey with criminal homicide as Neal’s accomplice, but because of some 

error by the Commonwealth (or, as the trial court aptly stated, the 

Commonwealth’s sloppiness), the Commonwealth erroneously listed Harvey 

as the principal actor in the aggravated assault charges. The amendment 

did not change the underlying facts – indeed, the facts as presented since 

the inception of the case solely support a finding that Harvey acted as Neal’s 

accomplice in committing the aggravated assaults. 

The only factor that weighs in favor of Harvey – which is also the only 

argument Harvey makes in his brief on appeal – relates to the timing of the 

request to amend. Harvey asserts he was necessarily prejudiced because 

the Commonwealth requested the amendment on the last day of trial. 

Harvey’s Brief at 18. Although Harvey claims “there was simply no time for 

postponement of trial or other relief in the interest of justice,” the record 

does not reflect that Harvey asked for a continuance or postponement of 
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trial when the trial court permitted the Commonwealth to amend the 

information. Moreover, case law reveals that a late request to amend by the 

Commonwealth is not per se prejudicial. See, e.g., Mentzer, 18 A.3d at 

1203 (affirming trial court’s finding of no prejudice where Commonwealth 

sought to amend information after trial but before sentencing). 

Harvey was informed of the criminal acts he was alleged to have 

committed and the factual scenario underlying those acts, and thus the late 

amendment to the criminal information does not offend the purpose of Rule 

564. See id. at 1202; Sinclair, 897 A.2d at 1222. We therefore find no 

error in the trial court’s decision to grant the Commonwealth’s request to 

amend Harvey’s criminal information. 

As his fourth issue on appeal, Harvey argues that the trial court erred 

by denying his post-sentence motion for a judgment of acquittal for 

voluntary manslaughter. Harvey’s Brief at 18. At its base, the challenge is 

to the sufficiency of the evidence to convict him of voluntary manslaughter. 

Harvey’s Brief at 18-21. He presents two theories in support of his 

argument: (1) the elements of the crime of voluntary manslaughter were 

not established, and (2) Harvey was alleged to have acted as Neal’s 

accomplice and Neal was convicted of third-degree murder, rendering it 

“impossible” for Harvey to have committed voluntary manslaughter as the 

getaway driver. Id. The trial court found the conviction was proper. Trial 

Court Opinion, 10/4/13, at 17-18. 
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 We have already concluded that Harvey acted as Neal’s accomplice in 

the victim’s murder. See supra, pp. 8-9. Thus, Harvey is criminally 

responsible for the acts committed by Neal. See 18 Pa.C.S.A. § 306(a), 

(b)(3). Our review of the record reveals that Harvey is correct that there 

was insufficient evidence to convict him (or Neal) of voluntary 

manslaughter.6

 There was, however, sufficient evidence to convict him of 

first-degree murder. “A criminal homicide constitutes murder of the first 

degree when it is committed by an intentional killing.” 18 Pa.C.S.A. 

 

6

 “A person who kills an individual without lawful justification commits 

voluntary manslaughter if at the time of the killing he is acting under a 

sudden and intense passion resulting from serious provocation by: (1) 

the individual killed; or (2) another whom the actor endeavors to kill, but he 

negligently or accidentally causes the death of the individual killed.” 

18 Pa.C.S.A. § 2503(a) (emphasis added). 

Emotions encompassed by the term ‘passion’ include 

anger, rage, sudden resentment or terror which 

renders the mind incapable of reason. Whether the 

provocation by the victim was sufficient to support a 

heat of passion defense is determined by an 

objective test: whether a reasonable man who was 

confronted with the provoking events would become 

impassioned to the extent that his mind was 

incapable of cool reflection. Significantly, we have 

clarified that both passion and provocation must be 

established, and that if there be provocation without

passion, or passion without a sufficient cause of 

provocation, or there be time to cool, and reason has 

resumed its sway, the killing will be murder. 

Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012) (internal citations 

and quotations omitted), cert. denied, 134 S. Ct. 178 (U.S. 2013). Absent 

here is sufficient evidence of “passion” or “provocation” without a cooling off 

period since approximately 14 hours elapsed between the provocation and 

the killing. 
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§ 2502(a). “Specific intent to kill can be established through circumstantial 

evidence, such as the use of a deadly weapon on a vital part of the victim’s 

body.” Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008). 

 The evidence presented at trial, viewed in the light most favorable to 

the Commonwealth, reveals that Neal shot the victim with a deadly weapon 

multiple times. N.T., 1/10/13, at 105. Neal then stood over the victim and 

shot him in the head as the victim pleaded for his life, killing him. Id. at 

107. Therefore, all elements of first-degree murder are met.7

“Whether an accomplice possessed the same intent to kill as his coconspirator may be inferred from words, conduct, the attendant 

circumstances including the actions taken after the killing and all reasonable 

inferences that follow from them.” Commonwealth v. Rios, 721 A.2d 

1049, 1053 (Pa. 1998). “[F]light and concealment can constitute 

circumstantial evidence of consciousness of guilt.” Commonwealth v. 

 

7

 Neal presented evidence at trial that he consumed drugs and alcohol the 

morning of the shooting, rendering him intoxicated to the point of losing his 

faculties and sensibilities. See N.T., 1/12/13, at 101-03, 122-23. This 

evidence of a diminished capacity permitted the jury to reduce Neal’s 

conviction from first-degree murder to third-degree murder. See 18 

Pa.C.S.A. 308 (“evidence of [voluntary] intoxication or drugged condition of 

the defendant may be offered by the defendant whenever it is relevant to 

reduce murder from a higher degree to a lower degree of murder”); 

Commonwealth v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013) (“A defense of 

diminished capacity negates the element of specific intent, and thus 

mitigates first-degree murder to third-degree murder. [...] [T]o prove 

diminished capacity due to voluntary intoxication, a defendant must show 

that he was overwhelmed to the point of losing his faculties and 

sensibilities.”), cert. denied, 134 S. Ct. 2725 (U.S. 2014). 
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Housman, 986 A.2d 822, 831 (Pa. 2009) (citation omitted). In the case at 

bar, Neal ran to Harvey’s waiting car immediately after shooting the victim 

and the two sped off. N.T., 1/9/13 (afternoon), at 142-44; N.T., 1/10/13, at 

156, 201. Harvey abandoned the van in Pittsburgh and fled to Chester, 

Pennsylvania, where police located him almost two months later. Id. at 

227; N.T., 1/11/13 (morning), at 32; N.T., 1/12/13, at 45. Based upon 

Harvey’s actions following the murder, we conclude that he could have 

properly been convicted of first-degree murder. 

The jury, however, chose to convict Harvey of voluntary manslaughter, 

a verdict inconsistent with the evidence presented and the conviction of 

Harvey’s accomplice, the principal actor. In relation to inconsistent verdicts, 

our Supreme Court has stated: 

The question before us implicates the general issue 

of inconsistent verdicts, which, under longstanding 

federal and state law, are allowed to stand so long as 

the evidence is sufficient to support the conviction. 

* * * 

[A]lthough an inconsistent verdict constitutes jury 

‘error,’ it is not at all clear whether the error was 

made at the expense of the Government or the 

defendant. Given this uncertainty, and the fact that 

the Government is precluded [by double jeopardy 

considerations] from challenging the acquittal, it is 

hardly satisfactory to allow the defendant to receive 

a new trial on the conviction as a matter of course. 

* * * 
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While recognizing that the jury’s verdict appears to 

be inconsistent, we refuse to inquire into or to 

speculate upon the nature of the jury’s deliberations 

or the rationale behind the jury’s decision. Whether 

the jury’s verdict was the result of mistake, 

compromise, lenity, or any other factor is not a 

question for this Court to review. We reaffirm that an 

acquittal cannot be interpreted as a specific finding 

in relation to some of the evidence, and that even 

where two verdicts are logically inconsistent, such 

inconsistency alone cannot be grounds for a new trial 

or for reversal. 

Commonwealth v. Miller, 35 A.3d 1206, 1208, 1209, 1213 (Pa. 2012) 

(internal citations and quotations omitted). 

 The fact that Harvey’s conviction differs from that of Neal is also not 

problematic. In fact, our legislature has specifically stated that an 

accomplice may be convicted in the absence of a conviction or even the 

prosecution of the principal actor. 18 Pa.C.S.A. § 306(g). 

 As the evidence presented supports a finding of Harvey’s guilt as an 

accomplice in the victim’s murder, we find no basis to grant him the 

acquittal he requests. 

As his final issue on appeal, Harvey raises a general challenge to the 

weight and sufficiency of the evidence to support his convictions. Beginning 

with his weight claim, we note that Harvey did not raise this either at 

sentencing or in a post-sentence motion. It is therefore waived. 

Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478, 490 

(Pa. Super. 2014). 
J-A23006-14 

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His generalized challenge to the sufficiency of the evidence is likewise 

waived. In his 1925(b) statement, Harvey frames his sufficiency claim as, 

“Whether the verdict of the jury was contrary to the weight and sufficiency 

of the evidence presented by the Commonwealth.” 1925(b) Statement, 

8/13/13, at ¶ 5. This is insufficient to preserve a challenge to the sufficiency 

of the evidence for appeal. As this Court has previously held: 

In order to preserve a challenge to the sufficiency of 

the evidence on appeal, an appellant’s Rule 1925(b) 

statement must state with specificity the element or 

elements upon which the appellant alleges that the 

evidence was insufficient. Such specificity is of 

particular importance in cases where, as here, the 

appellant was convicted of multiple crimes each of 

which contains numerous elements that the 

Commonwealth must prove beyond a reasonable 

doubt. 

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal 

citations omitted). Failure to properly preserve a sufficiency claim results in 

its waiver on appeal. Id.

 Regardless of waiver of his sufficiency claim, the only arguments he 

raised in his brief on appeal challenge the sufficiency of the evidence to 

convict him of voluntary manslaughter and aggravated assault. Harvey’s 

Brief at 21-25. As we have already determined that the evidence was 

sufficient to convict him of aggravated assault as an accomplice and 

voluntary manslaughter by rejecting his judgment of acquittal argument, no 

relief is due. 
J-A23006-14 

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 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/19/2014