March 7, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
MARC ARNOLD Appellant
Appeal from the Judgment of Sentence November 2, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003221-2010
BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J. [*]
Marc Anthony Arnold appeals from the judgment of sentence for third-degree murder imposed on him in the Court of Common Pleas of Lehigh County following his guilty plea and degree of guilt hearing. He received a sentence of 20 to 40 years' incarceration. In this timely appeal, Arnold claims there was insufficient evidence to prove third-degree murder in that there was no showing of malice. He also argues his sentence is manifestly excessive in that the trial court failed to consider certain mitigating factors. After a thorough review of the submissions by the parties, the certified record, and relevant law, we affirm.
We adopt the summary of the facts as stated by the trial judge in his Pa.R.A.P. 1925(a) opinion.
On April 7, 2010, Kevin Cobbs, Jr. was shot and killed inside Philly's Sports Bar in Allentown. Detective Eric Landis of the Allentown Police Department viewed security camera footage from the bar and identified [Arnold] as a suspect in the shooting.
The footage was from inside and outside of the bar and captures the actions of both [Arnold] and the victim on the night of the shooting.
At approximately 12:34 a.m., [Arnold] arrived at the bar in a vehicle along with three other individuals, identified as Francisco Torrellas, "Oz, " and "Jungle." The men entered the bar through the rear entrance, which led to the take-out area of the bar. Prior to entering the main bar area, [Arnold] stopped and began speaking with Mr. Cobbs. The two men, both members of the Bloods street gang, then exited the bar with a man identified as Dwight Boase. [Arnold] and Cobbs walked out into the parking lot and began arguing. Soon after, Jungle exited the bar and approached [Arnold] and Cobbs. Within one minute, Cobbs reached towards his waistband, at which point [Arnold] and Jungle grabbed Cobbs and struggled briefly. When this occurred, Mr. Boase pulled a handgun from his waist and approached the group. The struggle ended and [Arnold] and Cobbs continued arguing. During this time, Torrellas and Oz exited the bar. Eventually, [Arnold] walked away and towards the vehicle he arrived in. Cobbs, Boase, Torrellas, Oz and Jungle walked back towards the bar. [Arnold] walked to the vehicle he arrived in, retrieved a handgun from inside, and ran towards the bar.
Footage from inside the bar showed Mr. Cobbs and Mr. Boase walking through the entryway to the bar. Thereafter, [Arnold] followed, reached into the entryway with his gun, and fired toward Cobbs and Boase. Both men fled into the bar and continued running. [Arnold] reached into the doorway of the bar and continued firing. [Arnold] then fled the entryway and fired two more shots towards the bar, emptying the revolver.[Arnold] then entered the front passenger side of the vehicle he arrived in, and the vehicle drove away. Meanwhile, Mr. Cobbs ran into the bar's kitchen area where he collapsed, having been hit by one of the shots. Cobbs' cousin, Jamal Brown, removed a loaded .22 caliber revolver from Cobbs and discarded it into a trash can in the bar.
Trial Court Opinion, 3/14/2013, at 1-3 (internal footnote omitted).
After the shooting, Arnold fled to Virginia Beach, where he was apprehended on April 10, 2010. The murder weapon, a .357 caliber revolver, was in his possession at that time. Two detectives travelled to Virginia to interview Arnold. Arnold waived his right to remain silent and admitted shooting Cobbs. Arnold claimed he told Cobbs he wanted to quit the Bloods and Cobbs threatened both Arnold and his mother in response.
During the argument in the parking lot, Arnold told the detectives that Cobb had pulled a gun on him.
At the degree of guilt hearing, Arnold presented the testimony of Dr. Frank M. Dattilio, M.D. Dr. Dattilio is a clinical and forensic psychologist. Dr. Dattilio opined that Arnold, who had a long history of psychiatric problems that included diagnoses of ADD, bi-polar disorder, schizoaffective disorder with psychotic and paranoid symptomology, was acting under the influence of his psychological problems at the time of the crime. He opined that Arnold believed he and his mother were threatened by Cobbs and in danger. Arnold's actions were, therefore, the result of the heat of the moment.
The Commonwealth presented the testimony of Dr. Timothy J. Michals, M.D. Dr. Michals is a clinical and forensic psychiatrist. Dr. Michals testified that after reviewing Arnold's records, interviewing him for 90 minutes and watching the surveillance video, he believed Arnold's actions were not a product of his mental illness, including paranoia, and were simply part of the cause and effect of the argument with Cobbs.
Our standard of review for a sufficiency claim is well settled:
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by 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. Mollett, 5 A.3d 291, 313 (Pa.Super. 2010) (internal quotations and citations omitted).
Commonwealth v. Mobley, 14 A.3d 887, 889 (Pa.Super. 2011).
Our Supreme Court has addressed the requirements to sustain a conviction of third-degree murder,
[T]o convict a defendant of the offense of third[ ]degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought. This Court has long held that malice comprehends not only a particular ill-will, but ... [also a] wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.
Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363 (2005) (alteration in original) (internal citation, quotation, and emphasis omitted); see also Commonwealth v. Drum, 58 Pa. 9, 15 (1868) (defining malice as quoted above). This Court has further noted:
[T]hird degree murder is not a homicide that the Commonwealth must prove was committed with malice and without a specific intent to kill. Instead, it is a homicide that the Commonwealth must prove was committed with malice, but one with respect to which the Commonwealth need not prove, nor even address, the presence or absence of a specific intent to kill. Indeed, to convict a defendant for third degree murder, the jury need not consider whether the defendant had a specific intent to kill, nor make any finding with respect thereto.
Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 317 (2001) (quoting Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166, 174-75 (1999)).
Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013).
Instantly, Arnold claims the evidence proves he acted without malice. Rather, he shot Cobbs in the heat of passion because of his paranoid and psychotic mental illness coupled with the threat to both himself and his mother. The trial judge was clearly presented with evidence that could have supported Arnold's claim. However, the Commonwealth presented evidence that contradicted Arnold. The video surveillance showed Arnold and Cobbs both walking away from each other after the face-to-face confrontation. Arnold retrieved a gun from the car he arrived in and only then ran to catch up with the victim. While he ran, he hid the gun behind his back. Arnold shot at Cobbs, who fled. He followed Cobbs and shot at him again. As Arnold fled from the bar, he fired again, this time through the window.
Dr. Michals' testimony, coupled with the video evidence showing Arnold walking away from the confrontation supports the finding that Arnold was acting with malice and not in the heat of passion. Because the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, supports the trial court's finding of malice, Arnold's claim of insufficient evidence must fail.
Next, Arnold argues his sentence, the statutory maximum for third-degree murder, is manifestly excessive because the trial court failed to consider certain mitigating circumstances. This claim represents a challenge to the discretionary aspects of his sentence.
"It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal." Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010) (citation omitted).
Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006) (citations omitted).
Commonwealth v. Clarke, 70 A.3d 1281, 1286 (Pa.Super. 2013).
An argument that the sentencing court failed to adequately consider mitigating factors in favor of a lesser sentence does not present a substantial question appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254, 1257-1258 (Pa.Super. 2004), citing Commonwealth v. McNabb, 819 A.2d 54, 57, (Pa.Super. 2003). See also [Commonwealth v.] Griffin, 804 A.2d  at 9 [(Pa.Super. 2002)], citing Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc) (an allegation that the sentencing court did not adequately consider various factors is, in effect, a request that this court substitute its judgment for that of the lower court in fashioning a defendant's sentence).
Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa.Super. 2011) (footnote omitted).
In light of the foregoing, Arnold's claim that the trial court did not consider mitigating factors has not raised a substantial question and does not fulfill the four requirements needed for appellate review. Therefore, he is not entitled to relief on this issue.
Judgment of sentence affirmed.