J-A22001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DOMINIC J. FLEMISTER

Appellant No. 1951 MDA 2015

Appeal from the Judgment of Sentence September 17, 2015

in the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0002037-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 08, 2016

Dominic Flemister (“Appellant”) appeals the judgment of sentence 

entered September 17, 2015 in the Dauphin County Court of Common Pleas 

following his jury trial convictions for attempted murder,1aggravated 

assault,2and firearms carried without a license.3 After careful review, we 

affirm.

The trial court summarized the underlying facts of this matter as 

follows:

____________________________________________

1 18 Pa.C.S. § 901.

2 18 Pa.C.S. § 2702.

3 18 Pa.C.S. § 6106.
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In late April[] 2014, James Hill, a friend of [Appellant], 

known by the nickname “Kool Aid” or “Laid”, saw [Appellant] 

arguing with another person at an after-hours club on 19th Street 

in Harrisburg. On the same evening, after witnessing the 

argument at the club, Hill next saw [Appellant] get out of his 

black Chrysler in the area of 17th and Swatara Streets and 

continue the argument with the same person. As Hill was 

walking on 17th Street[,] he heard two shots. Hill looked in the 

direction of the shots and saw [Appellant] get into his car and 

pull off. Hill walked several blocks to his cousin’s house where 

he sat on the porch. About 10-20 minutes later, [Appellant] 

called out to Hill. The two spoke in an alleyway on Swatara 

Street. [Appellant] told Hill that the “other guy”, the victim, had 

tried to take a swing at him and that [Appellant] “had to do 

somethin’ to him” or “somethin’ had to be done to him”. As they 

spoke in the alleyway, Hill observed that [Appellant] had a gun. 

Hill did not contact police because Hill was friends with 

[Appellant] and did not want to “rat him out.” Hill spoke to 

police after they contacted him through his girlfriend.

On April 25, 2014, at 3:43 a.m., while on patrol in the area 

of 17th and Derry Streets in a marked police vehicle, [] 

Harrisburg Police Officer Angel Diaz heard a woman screaming. 

Officer Diaz activated the emergency equipment on the police 

vehicle and pulled toward South 17th and Swatara Streets where 

he saw the woman in the street. Officer Diaz saw a person, later 

identified as Rodney Dunbar, lying on his back on the porch at 

411 South 17th Street bleeding profusely from the groin. Officer 

Diaz spoke to Mr. Dunbar to keep him awake until emergency 

personnel arrived. Officer Diaz accompanied Mr. Dunbar in the 

ambulance en route to the Hershey Medical Center. During the 

ambulance ride, Dunbar stated, “they tried to kill me.” 

Brianna Chambers, Rodney Dunbar’s[] girlfriend[,] lived 

with him at the 400 Block of 17th Street. On the night of the 

incident, while she was on the porch, she observed [Appellant] 

and another person approach Dunbar. Approximately ten feet 

from the porch, a fight broke out between Dunbar and 

[Appellant]. Ms. Chambers heard the sound of a gunshot from 

the location of the fighting. Ms. Chambers observed neighbors 

in the area at the time although they were apart from the fight 

and did not participate. Upon realizing that Dunbar had been 

shot, Ms. Chambers began screaming and called 911.
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From the scene, police collected a shell casing from a 

revolver. Pennsylvania State Police records reflect that on April 

25, 2014, [Appellant] did not possess a valid license to carry a 

firearm.

Rodney Dunbar sustained a gunshot wound to the left 

thigh which caused obliteration of multiple femoral vessels for 

which he underwent multiple surgeries for artery repair as well 

as blood transfusions.

On the morning after the shooting, on April 2[5], 2014, 

Harrisburg Police Detective Ryan Neal met with Brianna 

Chambers. From a photo array, Ms. Chambers identified 

[Appellant] as the person who fought with and shot Rodney 

Dunbar. In a second photo array, Ms. Chambers identified an 

individual named Najee Banks as the person [who] accompanied 

[Appellant]. Ms. Chambers did not identify Najee Banks as a 

person who fought with [Appellant]

Because Mr. Dunbar had undergone surgery, Detective 

Neal had only brief contact with him in the initial days following 

the shooting. In one of those early visits, on April 26, 2014, in 

response to a question as to whether he recognized anyone in 

the photo array, Dunbar circled [Appellant’s] picture. Detective 

Neal noted on the picture “Unable to sign due to the 

circumstances.” In a subsequent visit, Detective Neal again 

showed Dunbar a photo array. Dunbar circled a picture of 

[Appellant] and stated, “That’s the boy that shot me.” When 

Detective Neal asked Dunbar “who is that guy that is circled?” 

Dunbar responded, “Kool Aid.” Dunbar signed and noted the 

date and time on the photo array. Detective Neal asked, “Now 

as far as this Kool Aid guy, how certain are you that this is the 

person that shot you?” to which Dunbar responded “Yeah, I’m 

100 (sic) for sure.”

At trial, in response to questioning by the prosecutor, 

Rodney Dunbar acknowledged only that he recall[ed] being shot 

on the night in question, [that he had] to undergo multiple 

surgeries[,] and that he remained hospitalized for approximately 

one month. After proper foundation, the [c]ourt permitted the 

prosecutor to treat Mr. Dunbar as a hostile witness. After 

Dunbar’s refusal to answer questions at trial, the [c]ourt directed 

that he cooperate [by] reading the transcribed recorded 

statement he gave Detective Neal, or, in the alternative, allow 

the prosecutor to read the transcript into evidence. Dunbar 
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reluctantly cooperated with the reading. In the transcribed 

recorded statement, Dunbar stated,

We were all at the crib playing cards and music. So I left 

2:00 (sic) to go to Forever Nights. So I seen him, seen 

Kool Aid at Forever Nights. We had some words. So after 

that I left. Walking to, walking to back to my house. So I 

seen Kool Aid come out, hop out, hop out of this black, 

black car. He came up to me talkin’ about, oh yeah you 

wanna act tough now? You wanna act tough shit? I was, 

like, what’s up, and that’s when we start. We start tearin 

it. And then after that everything was done. He felt some 

type of way. He shot at me. And that’s when I ran to the 

porch and laid down. And that’s when my baby mom[4] 

called the cops, called the ambulance.

In the statement, Dunbar told Detective Neal that 

[Appellant] pulled the gun from his pocket. [Appellant] shot 

Dunbar from a distance of 15-20 feet.

Around mid-day on April 28, 2014, Harrisburg Police and 

FBI Task Force Officer Richard Gibney received a phone call from 

[Appellant’s] cousin, William Flemister. Officer Gibney had dealt 

with William in the past and knew of [Appellant]. William 

Flemister related that he saw on the internet that Harrisburg 

Police wanted [Appellant]. William Flemister stated that he 

would have [Appellant] call Officer Gibney.

[Appellant] called Officer Gibney at approximately 3:15 

p.m. that day. [Appellant] stated that he did not shoot anyone. 

Officer Gibney urged [Appellant] to meet with him and lead 

detective Ryan Neal. In the phone conversation, [Appellant] told 

Officer Gibney of his whereabouts on the night of the incident, 

up to the point of his going to a pizza shop at 17th and Derry 

Streets at 1:45 a.m. [Appellant] gave no information about his 

whereabouts after 1:45 a.m. [Appellant] told Officer Gibney that 

he knew Rodney Dunbar and that they had an altercation a few 

weeks before because he heard that Dunbar was spreading 

rumors about him. [Appellant] made no further contact with

____________________________________________

4 The term “baby-momma” or “baby mom” refers to a woman who is the 

mother of a man’s child, although not necessarily married to that man.
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Officer Gibney. Officers apprehended [Appellant] on May 20, 

2014.

Trial Court Pa.R.A.P. 1925(a) Opinion, February 22, 2016 (“1925(a) 

Opinion”), pp. 2-7 (internal record citations and footnote omitted).

Following a trial that occurred on August 19 and 20, 2015, the jury 

convicted Appellant as discussed supra. On September 17, 2015, the trial 

court imposed an aggregate sentence of 20-40 years’ incarceration.5 This 

timely appeal followed.6

Appellant raises the following three (3) claims for our review:

1. Where the shooter was 15-20 feet away from the victim and 

the victim was shot in the leg, is there intent to kill?

2. Whether the [j]ury’s finding of guilt on count 1, [c]riminal 

[a]ttempt – [m]urder of the [f]irst [d]egree, is against the 

weight of the evidence when the victim did not remember who 

shot him and no one saw who shot the victim[?]

3. Whether the [j]ury’s finding of guilt on count 2, [a]ggravated 

[a]ssault, is against the weight of the evidence when the victim 

did not remember who shot him and no one saw who shot the 

victim[?]

Appellant’s Brief, p. 6.

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5 Specifically, the trial court sentenced Appellant to 20 to 40 years’ 

incarceration on the attempted murder conviction, 9 to 18 years’ 

incarceration on the aggravated assault conviction to be served concurrently 

to the attempted murder conviction, and a further 31⁄2 to 7 years’ 

incarceration on the firearms not to be carried without a license conviction, 

also to be served concurrent to the attempted murder conviction.

6 Both the trial court and Appellant complied with Pa.R.A.P. 1925.
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First, Appellant challenges the sufficiency of the evidence proffered by 

the Commonwealth to convict him of attempted murder. See Appellant’s 

Brief, pp. 14-23. Specifically, Appellant argues the Commonwealth failed to 

prove beyond a reasonable doubt that he intended to kill the victim. Id. 

This claim fails.

When examining a challenge to the sufficiency of evidence, our 

standard of review 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. 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), appeal 

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874 

A.2d 108, 120-21 (Pa.Super.2005)).

The Crimes Code provides:
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(a) Definition of attempt.–A person commits an attempt 

when, with intent to commit a specific crime, he does any act 

which constitutes a substantial step toward the commission of 

that crime.

18 Pa.C.S. § 901. “A person may be convicted of attempted murder if he 

takes a substantial step toward the commission of a killing, with the specific 

intent in mind to commit such an act.” Commonwealth v. Jackson, 955 

A.2d 441, 444 (Pa.Super.2008) (internal citations and quotations omitted). 

“The substantial step test broadens the scope of attempt liability by 

concentrating on the acts the defendant has done and does not any longer 

focus on the acts remaining to be done before the actual commission of the 

crime.” Id. “[A]ttempted murder requires an intent to bring about that 

result described by the crime of murder (i.e., the death of another).” 

Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.2004). “The 

mens rea required for first-degree murder, specific intent to kill, may be 

established solely by circumstantial evidence.” Jackson, 995 A.2d at 444. 

“The law permits the fact finder to infer that one intends the natural and 

probable consequences of his acts.” Id. “The offense of attempt to kill is 

completed by the discharging of a firearm at a person with the intent to kill, 

despite the fortuitous circumstances that no injury is suffered.” 

Commonwealth v. Mapp, 335 A.2d 779, 781 (Pa.Super.1975) (necessary 

intent found for attempted murder where defendant shot at victim and 

missed). Additionally, 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” required for a first-degree murder 
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conviction. See Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa.2007); 

Commonwealth v. Cousar, 928 A.2d 1025, 1034 (Pa.2007) (“a specific 

intent to kill may be inferred from the use of a deadly weapon on a vital part 

of a victim’s body.”). Further, evidence of flight is admissible for the 

purpose of establishing guilty knowledge. Commonwealth v. Gooding, 

649 A.2d 722, 726 (Pa.Super.1994) (citing Commonwealth v. Jones, 319 

A.2d 142, 149 (Pa.1974)).

Here, viewing all of the evidence in the light most favorable to the 

Commonwealth, there was sufficient evidence for the jury to find that 

Appellant used an unlicensed handgun to inflict injury on a vital part of the 

victim’s body. Thus, we do not hesitate to find that there was sufficient 

evidence to enable the fact-finder to find every element of attempted 

murder beyond a reasonable doubt. This claim fails.

Appellant’s second and third issues raise claims that the jury’s verdict 

was against the weight of the evidence. See Appellant’s Brief, pp. 24-34. 

These claims lack merit.

The denial of a new trial based on a lower court’s determination that 

the verdict was not against the weight of the evidence is one of the least 

assailable reasons for granting or denying a new trial. Commonwealth v. 

Clay, 64 A.3d 1049, 1055 (Pa.2013). This Court reviews weight of the 

evidence claims pursuant to the following standard:

A motion for new trial on the grounds that the verdict is contrary 

to the weight of the evidence, concedes that there is sufficient 

evidence to sustain the verdict. Thus, the trial court is under no 
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obligation to view the evidence in the light most favorable to the 

verdict winner. An allegation that the verdict is against the 

weight of the evidence is addressed to the discretion of the trial 

court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. A trial judge must 

do more than reassess the credibility of the witnesses and allege 

that he would not have assented to the verdict if he were a 

juror. Trial judges, in reviewing a claim that the verdict is 

against the weight of the evidence do not sit as the thirteenth 

juror. 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.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal 

citations, quotations, and footnote omitted).

Stated differently, a court may award a new trial because the verdict is 

against the weight of the evidence only when the verdict is so contrary to 

the evidence as to shock one’s sense of justice,7“such that right must be 

given another opportunity to prevail.” Commonwealth v. Goodwine, 692 

A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight 

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7 This Court has explained the notion of “shocking to one’s sense of justice” 

as follows:

When the figure of Justice totters on her pedestal, or when the 

jury’s verdict, at the time of its rendition, causes the trial judge 

to lose his breath, temporarily, and causes him to almost fall 

from the bench, then it is truly shocking to the judicial 

conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004) 

(internal citations and quotations omitted).
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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. Widmer, 744 A.2d at 753. When reviewing the 

trial court’s determination, this Court gives the gravest deference to the 

findings of the court below. We review the court’s actions for an abuse of 

discretion. Id.

Simply stated, the jury’s verdict in this matter illustrates that the jury 

found credible the witness testimony regarding Appellant’s conduct prior to, 

during, and after the shooting. Our review of the trial transcript reveals the 

trial court did not abuse its discretion in denying a new trial based on the 

weight of the evidence.8 Accordingly, Appellant’s weight of the evidence 

claims fail.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2016

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8 Appellant’s reliance on the victim’s reluctance to testify at trial is 

misplaced. As the Commonwealth properly notes, victim/witness 

recantation is not uncommon in matters of violent street crime. In any 

event, the victim’s reluctance did not prevent the jury from finding Appellant 

guilty of the crimes with which he was charged.