Opinion
J-S13038-17 No. 720 EDA 2016
03-29-2017
COMMONWEALTH OF PENNSYLVANIA v. LARRY RODRIGUEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 19, 2016 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000744-2014 BEFORE: BENDER, LAZARUS, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Larry Rodriguez, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following a jury trial and his conviction for third degree murder. Appellant contends the evidence was not sufficient to find him guilty of murder in the third degree. We affirm.
We adopt the facts as set forth in the trial court's opinion. See Trial Ct. Op., 9/15/16, at 2-12. On January 19, 2016, Appellant was sentenced to eighteen to thirty-six years' imprisonment. Counsel filed a motion for reconsideration of sentence on January 29, 2016. Appellant filed a pro se notice of appeal on February 26, 2016. On March 14, 2016, Appellant's motion for reconsideration of sentence was denied. Trial counsel filed a motion to withdraw which was granted and present counsel was appointed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion.
The trial court noted that "[s]ince [Appellant's] pro se notice of appeal was docketed in the Superior Court, [counsel] did not file a notice of appeal. See Trial Ct. Op. at 1; see also Commonwealth v. Cooper , 27 A.3d 994, 1007 (Pa. 2001), (holding "[t]he proper way to view the pro se appeal . . . is as a premature appeal that was perfected upon the trial court's proper consideration and denial of the counseled post-sentence motions."
Appellant raises the following issue for our review:
Was the evidence insufficient to sustain Appellant's third degree murder conviction because the Commonwealth failed to prove that the killing was committed with malice as it is clear from the facts that the killing occurred in the heat of passion stemming from the victim's larcenous behavior and the use of drugs and alcohol by both Appellant and the victim?Appellant's Brief at 3. Appellant contends
that his conviction for third-degree murder cannot stand because the Commonwealth failed to prove that he acted with malice. It is his contention that the most he could have been convicted of is heat of passion voluntary manslaughter because the facts of the case show that the killing occurred while [A]ppellant was under the influence of drugs and alcohol and was under the belief that the
decedent and her cohorts were taking money and property from him.Id. at 16, 20-21.
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In the instant matter, the cumulative events of the evening in question and the decedent's aggressive behavior constituted reasonable provocation. Appellant, the decedent, and associates of the decedent were drinking and doing drugs for hours prior to the incident. During that period of time, [A]ppellant believed that his personal belongings and money were being taken by the decedent and her associates. In addition, the decedent herself became violent as evidenced by the injuries to [A]ppellant which were observed by the police, who stated that the wounds to [A]ppellant were still fresh when they arrived.
It is submitted that the Commonwealth failed to sufficiently disprove that [A]ppellant was seriously provoked to kill the victim out of an actual sudden and intense heat of passion. Even when viewed in the light most favorable to the Commonwealth, the evidence overwhelmingly demonstrates that a reasonable person faced with the same cumulative events and the same victim would have easily been provoked. The evidence also shows that Appellant actually believed that the victim, who significantly outweighed him intended to [sic] him and steal from him. This mistaken belief, [A]ppellant's subsequent impassioned utterances when the police arrived show that he actually acted in the heat of passion when he killed the victim. The successive nature of the evening's events show the provocation led directly to the killing, and that [A]ppellant did not have the opportunity for cooling time.
Appellant did not file a post-sentence motion challenging the sufficiency of the evidence. However, a sufficiency of the evidence claim can be raised for the first time on appeal. Pa.R.Crim.P. 606(A)(7); Commonwealth v. Coleman , 19 A.3d 1111, 1118 (Pa. Super. 2011).
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000).
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict.Commonwealth v. Ratsamy , 934 A.2d 1233, 1235-37 (Pa. 2007) (citations and quotation marks omitted).
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When reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt.
The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence, but the question of any doubt is for the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Hopkins , 747 A.2d 910, 913-14 (Pa. Super. 2000) (citations omitted).
The proper application of this standard requires us to evaluate the entire trial record, and all evidence actually received, in the aggregate and not as fragments isolated from the totality of the evidence. Our law is crystal clear that the trier of fact, in passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence presented. The Superior Court may not reweigh the evidence and substitute our judgment for that of the finder of fact. If the factfinder reasonably could have determined from the evidence adduced that all of the necessary elements of the crime were established, then that evidence will be deemed sufficient to support the verdict.
Section 2502(c) of the Crimes Code defines third degree murder:
(c) Murder of the third degree.—All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.18 Pa.C.S. § 2502(c). In Commonwealth v. Marquez , 980 A.2d 145 (Pa. Super. 2009) (en banc), this Court opined:
Third-degree murder is defined [as] all other kinds of murder other than first degree murder or second degree murder. The elements of third-degree murder, as developed by case law, are a killing done with legal malice.
Id. at 148 (citations and quotation marks omitted). "Malice is established where an actor consciously disregard[s] an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Commonwealth v. Devine , 26 A.3d 1139, 1146 (Pa. Super. 2011) (citation and quotation marks omitted). "Malice may be inferred by considering the totality of the circumstances." Commonwealth v. Dunphy , 20 A.3d 1215, 1219 (Pa. Super. 2011) (citation omitted).Malice exists where there is a particular ill-will, and also where there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.
Murder in the first and second degree is defined as follows:
(a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree.—A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
In fact, our Pennsylvania Supreme Court "has held on several occasions that evidence of death by strangulation can be sufficient to establish the requisite intent for first-degree murder." Commonwealth v. Martin , 101 A.3d 706, 718-19 (Pa. 2014), cert. denied, 136 S.Ct. 201 (2015). In Commonwealth v. Cooper , 941 A.2d 655 (Pa. 2007), the court held that evidence of "death by manual strangulation was sufficient to establish that the perpetrator acted maliciously and with a specific intent to kill." Id. at 662 (citation omitted and emphasis added).
After careful consideration of the record, the parties' briefs, and the well-reasoned decision of the Honorable Rose Marie DeFino—Nastasi, we affirm on the basis of the trial court's decision. See Trial Ct. Op. at 13-17 (holding Appellant's act of strangling the decedent constituted the requisite malice for third degree murder). Accordingly, having discerned no error of law, we affirm the judgment of sentence. See Ratsamy , 934 A.2d at 1235-37.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/29/2017
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18 Pa.C.S. § 2502(a)-(b).