February 10, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
JEWELL MANN, Appellant
Appeal from the Judgment of Sentence entered December 7, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0014477-2010
BEFORE: ALLEN, STABILE, and STRASSBURGER, [*] JJ.
Jewell Mann ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of third-degree murder. Appellant presents two issues for our review:
I. Is [Appellant] entitled to an arrest of judgment on the charge of Murder in the Third Degree where the Commonwealth did not establish the element of malice which is necessary for any degree of murder?
II. Is [Appellant] entitled to a new trial where the verdict on the charge of Murder in the Third Degree is not supported by the greater weight of the evidence as the greater weight did not support the proposition that the Commonwealth had proved malice?
Appellant's Brief at 3.
The trial court summarized the factual background as follows:
These charges arose out of an August 14, 2009 incident in which [A]ppellant got into an argument and physical altercation with the decedent, Luther Hawkins ("Hawkins"), on the 2300 block of Bambrey Terrace in Philadelphia. At approximately 10:00 A.M. on August 14, 2009, Appellant's partner, Shannon Fitzpatrick ("Fitzpatrick"), and the decedent's wife, Shantelle Willis ("Willis"), engaged in a fistfight after an argument arose over Willis' attempt to provide Probation Officers Deborah Stott and Alethea Smith Champagnid with basic information about Fitzpatrick. This fight was broken up by neighbors and Fitzpatrick and Willis parted ways. Willis was able to flag down Philadelphia Police Officer Donna Manigo and her partner Officer Barrett. Willis explained the situation and as the officers took down her information, the Housing Manager arrived and stated that she would arrange mediation between Willis and Fitzpatrick.
Later that same day, at approximately 3:30 in the afternoon, Fitzpatrick's daughter, E.G., got into an altercation with Willis and began fighting. Fitzpatrick, Hawkins, and Appellant joined in the fight, with Fitzpatrick hitting both Willis and Hawkins with a bat. During the fight, Appellant pulled out his gun and shot Hawkins in the chest and back. After shooting Hawkins, Appellant fled, discarded the gun he used to kill Hawkins in the Delaware River, and hid from police for fourteen (14) months in Delaware before turning himself in on October 31, 2010.
Trial Court Opinion, 6/14/13, at 3-4.
In his first issue, Appellant argues that there was insufficient evidence to support his third-degree murder conviction. Appellant specifically asserts that "the Commonwealth has not established the element of malice in that the Commonwealth did not prove beyond a reasonable doubt that [Appellant] failed to act in self-defense." Appellant's Brief at 9. Appellant cites Commonwealth v. Cain, 398 A.2d 1359 (Pa. 1979) (discussing voluntary manslaughter as lacking malice), and continues, "where…the victim is in [Appellant's] house and continuing the fray, it is clearly legally impossible to conclude that [Appellant] did not at the very least have an unreasonable but actual belief that he could exercise self-defense." Id. at 10. We disagree.
Our standard of review when reviewing a sufficiency claim is well-settled:
When evaluating a sufficiency claim, our standard is whether, viewing all the evidence and reasonable inferences in the light most favorable to the Commonwealth, the factfinder reasonably could have determined that each element of the crime was established beyond a reasonable doubt. This Court considers all the evidence admitted, without regard to any claim that some of the evidence was wrongly allowed. We do not weigh the evidence or make credibility determinations. Moreover, any doubts concerning a defendant's guilt were to be resolved by the factfinder unless the evidence was so weak and inconclusive that no probability of fact could be drawn from that evidence.
Commonwealth v. King, 990 A.2d 1172, 1178 (Pa.Super. 2010) (internal citations omitted).
Malice is a necessary element of third-degree murder. Commonwealth v. McHale, 858 A.2d 1209 (Pa.Super. 2004). Third-degree murder requires no specific intent to kill; rather, the requisite mens rea is "malice, " which consists of "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and mind regardless of social duty, although a particular person may not be intended to be injured." Commonwealth v. DeStefano, 782 A.2d 574 (Pa.Super. 2001).
In addressing Appellant's sufficiency claim as it pertains to malice, the trial court correctly explained:
The elements of third-degree murder, as developed by case law, are a killing done with legal malice. Malice, express or implied, is an essential element of murder, and is the distinguishing factor between murder and the lesser degrees of homicide. Commonwealth v. MacArthur, 427 Pa.Super. 409, 413, 629 A.2d 166, 167 (1993). In order to prove that a defendant is guilty of third degree murder, the Commonwealth must establish that the defendant acted with malice. Commonwealth v. Martin, 433 Pa.Super. 280, 640 A.2d 921 (1994). Malice exists where there is a particular ill-will and where "there is wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty." Commonwealth v. Bigelow, 416 Pa.Super. 449, 454, 611 A.2d 301, 304 (1992) citing Commonwealth v. Smouse, 406 Pa.Super. 369, 594 A.2d 666 (1991). Malice may be inferred from the attending circumstances of the act resulting in the death. One such circumstance is evidence that the defendant used a deadly weapon upon a vital part of the victim's body; this inference alone is sufficient to establish malice. Commonwealth v. Lee, 426 Pa.Super. 345, 350, 626 A.2d 1238, 1241 (Pa.Super. 1993). Therefore, in the instant case, the jury was free to infer the malice necessary to sustain a conviction for third degree murder based on Hawkins' injuries being sustained to his chest and back.
Trial Court Opinion, 6/14/13, at 9-10.
Our review of the record comports with the trial court's analysis. No one, including Appellant, disputes that Appellant shot Hawkins "with a deadly weapon on a vital part of the victim's body." Appellant testified:
But when I told [Hawkins] to get out of the house, he proceeded to come forward at me. So that's when I went under my pillow and got the revolver and warned him one more time. Get out [of] my house. And that's when he lunged at me and the first shot went off. And then after the first shot went off he proceeded to lunge at me again. That's when the second shot went off. And then after that, the second shot went off, he went to fall forward. And when he fell forward, his body bent over, and that's when the third shot hit him over his shoulder.
N.T., 10/18/12, at 18-19. Appellant testified that it was not his intent to kill Hawkins, and that his "intentions were to stop Lou Hawkins from hurting me and my daughters, my family inside of my home." Id. at 23. However, as noted above, malice does not require the intent to kill or even harm. The jury acted within their discretion as factfinder in rejecting Appellant's claim of justification, and inferring malice to determine that Appellant was guilty of third-degree murder. See Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa.Super. 1998) (in the context of third-degree murder, the Commonwealth need not establish a specific intent to kill or even harm; rather, the Commonwealth need only establish a killing with "malice, " that is, the death brought on by an intentional act which indicates … recklessness of consequences, or a mind lacking regard for social duty); see also Commonwealth v. Gelber, 594 A.2d 672 (Pa.Super. 1991) (in murder prosecution, where there is evidence from which the jury can infer malice, the Commonwealth has met its burden of proving that defendant did not act in self-defense).
In his second issue, Appellant challenges the weight of the evidence. To properly be preserved, a weight of the evidence claim must be raised in a motion prior to sentencing, in an oral motion at sentencing, or a post-sentence motion. Pa.R.Crim.P. 607; see also Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013). Failure to comply with Pa.R.Crim.P. 607 results in waiver. See Commonwealth v. Little, 879 A.2d 293, 300-301 (Pa.Super. 2005). The fact that a trial court addresses a claim in its Pa.R.A.P. 1925(a) opinion is of no consequence. Commonwealth v. Washington, 825 A.2d 1264 (Pa.Super. 2003) (failure to raise a weight issue in a post-trial motion, despite the fact that the court addressed it in its opinion resulted in waiver of issue on appeal).
Here, Appellant did not raise his weight claim orally after the verdict was rendered, (see N.T., 10/22/12, at 6-11), and the sentencing transcript from December 7, 2012 is not in the record. Further, the docket entries and record evince no written or post-sentence motion challenging the weight of the evidence. Appellant's weight claim is thus waived.
Based on the foregoing, we find no merit to Appellant's issues challenging the sufficiency and weight of the evidence presented at trial.
Judgment of sentence affirmed. Judgment Entered.