Com. v. Bartlow, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MICHAEL BARTLOW

Appellant No. 3534 EDA 2014

Appeal from the Judgment of Sentence November 24, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009398-2012

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.* MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 23, 2015

Appellant, Michael Bartlow, appeals from the November 24, 2014 aggregate judgment of sentence of 9 to 20 years’ imprisonment imposed following a bench trial, wherein he was found guilty of murder of the third degree and possession of an instrument of a crime (PIC).1 Contemporaneously with this appeal, Appellant’s counsel filed with this Court a petition to withdraw, together with an Anders2 brief, averring the appeal ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2502(c) and 907(a), respectively. 2 Anders v. California, 386 U.S. 738 (1967).

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is frivolous. After careful review, we affirm and grant counsel’s petition to withdraw.

The trial court has set forth the relevant factual history as follows.

Immediately after the attack that is the subject of this case, Mr. Raymond Moore was taken by ambulance to Albert Einstein Medical Center. During the ambulance ride, his heart stopped. He was kept on life support for one week when Ms. Moore allowed his life support to be withdrawn and he died.

Dr. Gary Lincoln Collins, Deputy Chief Examiner for the Philadelphia Medical Examiner’s Office, gave expert testimony that Mr. Moore sustained nasal bone and jaw fractures in the attack. While he was at the hospital and the medical personnel were trying to stabilize his jaw, they placed a tracheostomy tube in his neck. The tube became obstructed with blood, causing Mr. Moore to be unable to breathe for an extended period, thus causing irreversible brain injury. Brain injury due to a clogged tracheostomy tube is a known risk of surgical treatment for head and jaw injuries like the ones Mr. Moore sustained.

Cathy Moore lived with her husband Raymond at an apartment complex on the 600 block of East Church Lane in 2012. [Appellant] knew them and lived in the same apartment complex. Prior to May 24, 2012, [Appellant] and the Moores had a friendly relationship. On the morning of May 24, 2012, Raymond Moore left the apartment to run errands; when he returned in the afternoon, Cathy Moore noticed that he seemed very inebriated. When she asked him for their car keys, he said that [Appellant] had them, as he had asked to borrow the car in order to take his aunt home.

Cathy Moore objected to this arrangement and shouted upstairs for [Appellant] to return the car keys to her. [Appellant] said that he had paid twenty dollars to be able to use the car so he could

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take his aunt home. Ms. Moore offered him twenty dollars and told him that he could not use the car. When she handed him the twenty dollars, [Appellant] said that he had actually paid seventy-five dollars to use the car. She refused to give him that amount, and he refused to return the keys to her and to take the proffered twenty dollars. She then threatened to call the police in order to report that her car was being stolen.

As Ms. Moore was searching for her title in order to confirm ownership to the police, she heard her car alarm going off. She went outside and saw [Appellant] attempt to start the car; he was unable to do so. They argued about his use of the car, and at that point she called 911 to report the attempted theft of her car. They continued to argue, and as they were doing so, the keys slipped from [Appellant]’s hands. Both of them dove to retrieve the keys. She grabbed them first, and [Appellant] slapped her across the face and went back inside.

After [Appellant] retreated to the apartment building, Ms. Moore called 911 again to tell the dispatcher what had happened. [Appellant], back in his apartment, opened a window overlooking the car and told Ms. Moore that he was going to “f[***] up” her husband. Ms. Moore was attempting to start the car so that she could operate the power windows and raise them, but it would not start. Mr. Moore came out to the car, moving in a wobbly manner. He also attempted to start the car, but was unable to do so.

As Mr. Moore was attempting to start the car and Ms. Moore was waiting for police to arrive, [Appellant] came back outside. A young woman followed him out to where the car was parked. The two men began arguing, and they each took a swing at the other, but neither blow landed. Then Mr. Moore chased [Appellant], who ran between and around parked cars to evade him. When Mr. Moore grew tired and winded, he walked back toward the parked car where Ms. Moore was standing. [Appellant] then grabbed a brick and threw it at him,

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hitting him in the head. Mr. Moore fell to the ground. [Appellant] picked up the brick and hit him in the head with it again, and then kicked him twice. Then he and the young woman walked away. The attack was recorded on video.

Trial Court Opinion, 2/2/15, at 2-4 (citations omitted).

On June 13, 2012, Appellant was arrested and charged with the aforementioned crimes. Appellant’s trial took place on August 18-19, 2014, at the conclusion of which Appellant was found guilty. On November 24, 2014, Appellant was sentenced to an aggregate judgment of sentence of nine to twenty years imprisonment.3 On December 1, 2014, Appellant filed a timely post-sentence motion, which was denied by the trial court on December 3, 2014. On December 8, 2014, Appellant filed a timely notice of appeal.4 On March 12, 2015, counsel filed a petition to withdraw, along with ____________________________________________

3 Specifically, Appellant was sentenced to nine to twenty years for the murder of the third degree charge, no further penalty was assessed regarding the PIC charge. 4 On December 15, 2014, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed a motion for an extension of time, which was granted, however, Appellant failed to timely comply with said extension. On January 28, 2015, Appellant filed a petition for nunc pro tunc reinstatement of his ability to file a Rule 1925(b) statement, and appended his Rule 1925(b) statement. On January 30, 2015, the trial court granted Appellant’s petition and accepted the statement as timely filed.

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an Anders brief. Thereafter, on May 15, 2015, Appellant filed a pro se brief.5

On appeal, counsel raises the following issues for our review.

[1.] [Appellant]’s third-degree murder conviction cannot stand because the Commonwealth failed to prove beyond a reasonable doubt that [Appellant]’s actions on May 24, 2012 criminally caused Raymond Moore’s death on May 30, 2012.

[2.] The Commonwealth presented insufficient evidence to prove [Appellant] acted with malice when he struck Raymond Moore with a brick on May 24, 2012. This is so because the Commonwealth failed to prove beyond a reasonable [doubt] [Appellant] did not act in self-defense.

Anders Brief at 8, 12 (citations omitted).

Additionally, in his pro se brief, Appellant raises three issues for our review.6 First, as also raised by counsel, Appellant argues the evidence was insufficient to convict him of murder of the third degree because “it was not proved beyond a reasonable doubt by the Commonwealth that Appellant’s actions caused the death of the victim.” Appellant’s Pro Se Brief at 8. ____________________________________________

5 We note, on June 5, 2015, Appellant filed a pro se motion to remand for a hearing in accordance with Commonwealth v. Grazier 713 A.2d 81 (Pa. 1998). Grazier is inapplicable in the instant matter as Appellant is currently represented by counsel, and has filed a pro se response to counsel’s Anders brief. Accordingly, Appellant’s June 5, 2015 motion to remand is denied as moot. 6 We note that Appellant has not included a statement of questions, however, from the argument section of his brief we can ascertain his three contentions. See Appellant’s Pro Se Brief at 8-9.

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Second, Appellant argues the testimony of Cathy Moore was inconsistent with her previous statements, and therefore should have been discredited. Id. Finally, Appellant raises several claims of ineffective assistance of counsel. Id. at 8-9.

Preliminarily, we must address counsel’s petition to withdraw. “When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citation omitted). Additionally, we review counsel’s Anders brief for compliance with the requirements set forth by our Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

[W]e hold that in the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id. at 361.

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005) and its progeny, counsel must comply with the following obligations to his client.

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Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation omitted). “Once counsel has satisfied the above requirements, it is then this Court’s duty to conduct its own review of the trial court’s proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Ordinarily, “this Court must conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) (footnote and citation omitted). However, this Court recently held Flowers was not applicable when an appellant properly files a pro se response to an Anders brief. Commonwealth v. Bennett, --- A.3d ---, 2015 WL 5472807, at *4 (Pa. Super. 2015). Therefore, our review of the record in this case is limited to the issues raised by counsel and Appellant in their respective filings. Id. at *5.

Instantly, we are satisfied that counsel has complied with the technical requirements of Anders and Santiago. First, counsel has provided a

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procedural and factual summary of the case with references to the record. Anders Brief at 3-8. Second, counsel advances relevant portions of the record that arguably support Appellant’s claims on appeal. Id. at 8-10; 12-14. Third, counsel concluded Appellant’s appeal is frivolous. Id. at 8. Lastly, counsel has complied with the requirements set forth in Millisock. As a result, we proceed with our independent review of the record.

In his first issue, Appellant argues the evidence was insufficient to convict Appellant of murder of the third degree because the Commonwealth failed to prove his “actions on May 24, 2012[,] criminally caused Raymond Moore’s death on May 30, 2012.” Anders at 8. Specifically, Appellant argues Moore’s death “cannot be considered a natural and foreseeable consequence of his acts[,]” because “Dr. Collins said the brick blows inflicted non-fatal injuries.” Id. at 9 (emphasis in original). In his second issue, Appellant argues the evidence was insufficient because “the Commonwealth failed to prove beyond a reasonable [doubt that] he did not act in self-defense.” Id. at 12.

Our standard of review regarding the sufficiency of the Commonwealth’s evidence is well settled. “In reviewing the sufficiency of the evidence, we consider whether the evidence presented at trial, and all reasonable inferences drawn therefrom, viewed in a light most favorable to the Commonwealth as the verdict winner, support the … verdict beyond a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.

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2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its burden 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. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the entire record … and all evidence actually received[.]” Id. (internal quotation marks and citation omitted). “[T]he 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.” Id. (citation omitted). “Because evidentiary sufficiency is a question of law, our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

“Third degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice.” Commonwealth v. Tielsch, 934 A.3d 81, 94 (Pa. Super. 2007) (citation omitted). “Third-degree murder does not require the specific intent to kill, though it does require malice.” Commonwealth v. Street, 69 A.3d 628, 631-632 (Pa. Super. 2013).

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“Malice exists where there is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Tielsch, supra.

Further, if a defendant presents evidence raising an issue of self-defense, the Commonwealth has the burden to disprove it beyond a reasonable doubt. Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011). The Commonwealth meets that burden if it proves any one of the following: (1) the defendant was not free from fault in provoking or continuing the conflict that resulted in the killing; (2) the defendant did not reasonably believe he was in imminent danger of death or serious bodily injury, and it was not necessary to kill in order to avoid that danger; or (3) the defendant violated a duty to retreat or avoid the danger. Commonwealth v. Mouzon, 53 A.3d 738, 741 (Pa. 2012). Further, “[a]lthough the Commonwealth is required to disprove a claim of self-defense … a [fact-finder] is not required to believe the testimony of the defendant who raises the claim.” Houser, supra (internal quotation marks and citation omitted). Nonetheless, “the Commonwealth cannot sustain its burden of proof solely on the fact finder’s disbelief of the defendant’s testimony.” Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001).

After careful review, we conclude that the trial court’s Rule 1925(a) opinion fully sets forth Appellant’s claims, identifies the proper standard of

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review, discusses the relevant law, and explains the basis for its conclusion that said evidence was sufficient to support its verdict and the Commonwealth disproved Appellant’s claim of self-defense beyond a reasonable doubt. Instantly, we have carefully reviewed the entire record and Appellant’s arguments, and we conclude that the thorough and wellreasoned opinion of the Honorable Barbara A. McDermott is in agreement with our own views. Accordingly, we adopt the trial court’s February 2, 2015 opinion as our own for purposes of our appellate review.7 See Trial Court Opinion, 2/2/15.

Appellant has raised additional issues in his pro se brief in response to counsel’s Anders brief, which we address as follows.8 Appellant contends, in a one sentence argument, that the testimony of witness, Cathy Moore, was inconsistent, and therefore should have been discredited. Appellant’s Pro Se Brief at 8. A claim implicating the credibility of a witness raises a weight of the evidence claim.

We begin by acknowledging that “[a] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but

questions which evidence is to be believed.” Commonwealth v. ____________________________________________

7 The parties are directed to attach a copy of the trial court’s February 2, 2015 opinion to this memorandum in the event of further proceedings. 8 As previously noted, we disposed of Appellant’s primary contention, that the evidence was insufficient to convict him of murder of the third degree, as frivolous.

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Thompson, 106 A.3d 742, 758 (Pa. Super. 2014) (citation omitted). Further, it is well established that it is for the factfinder to determine the weight given to the evidence produced at trial. Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted). Because it is the role of the factfinder to weigh the evidence, an appellant seeking to challenge the weight of the evidence carries a heavy burden.

If the factfinder returns a guilty verdict, and if a criminal defendant then files a motion for a new trial on the basis that the verdict was against the weight of the evidence, a trial court is not to grant relief unless the verdict is so contrary to the evidence as to shock one’s sense of justice.

Id. We also highlight that “[a] new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015). “[O]nly where the facts and inferences disclose a palpable abuse of discretion will the denial of a motion for a new trial based on the weight of the evidence be upset on appeal.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (emphasis in original; citation omitted).

Pennsylvania Rule of Criminal Procedure 607 pertains to challenges to the weight of the evidence and provides, in relevant part, as follows.

Rule 607. Challenges to the Weight of the Evidence

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(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion. Pa.R.Crim.P. 607(A); see also Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal[]”). Our Supreme Court has explained that preserving a weight of the evidence claim in the trial court is important because the failure to do so “deprive[s the trial] court of an opportunity to exercise discretion on the question of whether to grant a new trial.” Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (footnote omitted), cert. denied, Sherwood v. Pennsylvania, 559 U.S. 1111 (2010).

In this case, Appellant did not challenge the weight of the evidence in his post-sentence motion. See Appellant’s Post-Sentence Motion, 12/1/14, at 2 (solely raising a claim that the trial court abused its discretion in sentencing Appellant). Additionally, we have reviewed the record and Appellant did not raise this issue at any time during the proceedings in the trial court. Instead, Appellant raises this issue for the first time on appeal. As a result, we conclude Appellant’s weight of the evidence claim is waived

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for want of preservation. See Pa.R.A.P. 302 (“[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal”).

Finally, Appellant raises claims of ineffective assistance of trial counsel. Appellant’s Pro Se Brief at 8-9. However, said claims are not ripe for review, but may be raised in a collateral proceeding. Our Supreme Court recently reaffirmed the holding of Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) in Commonwealth v. Holmes, 79 A.3d 562, (Pa. 2013). Therein the Court held “claims of ineffective assistance of counsel are to be deferred to [Post Conviction Relief Act, (PCRA), 42 Pa.C.S.A. §§ 9541-9546] review; trial courts should not entertain claims of ineffectiveness upon postverdict motions; and such claims should not be reviewed upon direct appeal.” Id. at 576. The Holmes Court noted two narrow exceptions for “extraordinary circumstances” to the broader rule, holding “where the trial court, in the exercise of its discretion, determines that a claim (or claims) of ineffectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted,” and allowing review for “good cause,” such as the shortness of a sentence, of “multiple, and indeed comprehensive, ineffectiveness claims” if such review is accompanied by a knowing, voluntarily, and express waiver of PCRA rights. Id. at 577-578. Instantly, neither of these exceptions applies. Therefore, Appellant’s ineffective assistance of counsel issues are premature and we decline to

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address the merits. This is without prejudice to Appellant’s right to present these ineffectiveness issues in a timely PCRA petition.

Based on the foregoing, we conclude the issues raised in the Anders and pro se briefs either lack merit or are not properly before us at this juncture. As a result, we agree with counsel’s assessment that the appeal is wholly frivolous. Accordingly, we affirm the trial court’s November 24, 2014 judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel granted. Application for remand denied as moot. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/23/2015

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JN THE COURT 011 COMMON PLEAS J 5, 2014, this Court issued an order pursuant to Pa.R.A.P. 1925(b). On December 24, 2014, the FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIUMINAL TIUAL DIVISION . defendant filed Cot an extension of time in which to file a response io this Court's Rulo I 92S(b)

COMMONWEALUI OF PENNSYLVANIA : CP-51-CR-0009398·2012 order. On December 3 J, 20 J 4, this Court granted a one-week extension. On January 28, 20 I 5,

the defendant tiled for nunc pro tune reinstatement of his ability lo flle a Rule 1925(b) statement,

v. : 3534 EDA 2014 FILED with such statement appended thereto. This Court granted reinstatement with no objection from FEBO 2 2015 the Commonwealth end •o.cepted the statem<:nt as timcly on January 30, 2015. MICHAEL BARTLOW CrimfnalAppeate Unit First Judicial District of PA Immediately after the attack that is the subject of this case, Mr. Rnymond Moore was

McDermott, J. February 2, 2015 taken by ambulance to Albert Einstein Medical Center. During the ambulance ride, his heart

stopped. He wBS kept on llfo support for one week when Ms. Moore allowed his life support to

P11>ctdural Jilstory be withdrawn, end he died. N.T. Augus! 19, 2014, p. 52. On June 13, 2012, the defendant, Michael Bartlow, was arrested and charged with Third Dr. Gary Lincoln Collins, Deputy Chief Examiner for the Philadelphia Medical Degree Murder, Possession of an Instrument of Crime (PIC), and Simple Assault On August Examiner's Office, gave expert testimony that Mr. Moore sustained nasal bone and jaw fractures

18, 2014 the defendant appeared before this Court and walved his tight to be tried by a jury. in the attack, While he was nt the hospital end the medieel personnel were trying to stabili,.e his

This Court proceeded to conduct a waiver trial. I On August I 9, 2014, this Court found the jaw, the_)' placed a tracheostomy tube in his neck. The tube became obstructed with blood, defendant to be guilly of Thlrd Degree Murder and P!C.2 causing Mr. Moore to be unable to breathe for an extended period, thus causing irreversible brain On November 24, 2014, nRer reviewing presenrcnce nnd mcntnl hcnllh reports, this Court injury. Brain injury due to a closged tracheostomy tube is a known risk of surgical treatment for imposed a sentence of nine to twenty years in prison for Third Degree Murder, with no further head and jaw Injuries like the ones Mr. Moore sustained. Id. nl 124·138, penally for PIC. On December I, 2014, the defendant moved for reccnsideratlon of hls sentence. Cathy Moore lived with her husband Raymond nt an apartment complex on the 600 block On December 3, 20 I 4, this Court denied reconsideration of sentence. of East Church Lane in 2012. The defendant knew them and lived in the same npnrtment On December 8, 2014, the defendant filed a timely Notice of Appeal and trial counsel complex. Prior to May 24, 2012, the defendant and the Moores had a friendly relationship. On moved to withdraw. On December 10, 2014, appellate counsel was appointed. On December the morning of May 24, 2012, Raymond Moore left the npartment to run errands; when he

returned in the afternoon, Cathy Moore noticed that ho seemed very Inebriated. When she asked I The d~r<:fldanJ had a prior mbllinl in this manor, on Jenuary 7, 2014 before th~ Honorable Teresa SatmirnJ. 1 Ar lh!l time. the Commonwealth moved fO no/It prQJ,Jt the Sfmpte A!.Uult charge.

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Circulated 10/27/2015 11:20 AM him for their car keys, he said that the defendant had them, as he had asked to borrow the car in parked. The two men began arguing; and they each took n swing at the other, but neither blow order lo lake his aunt home. Id. al 5-18. landed. Then Mr. Moore chased the defendant, who ran between and around parked cars lo

Cathy Moore objected to Ibis arrangement and shouted upstairs for the defendant to evade him, When Mr. Moore grew I ired and winded, he walked back toward the parked car return the car keys to her. The defendant said that he had paid twenty dollars to be able to use whore Ms. Moore wns standing. The defendant then grabbed a brick and threw it at him, hitting

the cur so he could take his aunt home. Ms. Moore offered him twenty dollars and told him that him in the head. Mr. Moore fell to the ground. The defendant picked up the brick and hit him in he could not use the car. When she handed him lhe twenty dollars, the defendant said that he hod the head with it again, and then kicked him twice. Then he and the young woman walked away.

actuelly paid seventy-five dollars to. use the car. She refused to give him thnt amount, 1111d he Id. at 36·45. The aueck was recorded on video. Id. ot 178-192. refused to return the keys lo her and to take the proffered 1wenty dollars. She then threatened to M·r. Moore often carried a pocket knife, but on the night of May 24th, 20!2, he left the

call tho police in order lo report thnt her oar was being stolen. Id. nt 18-20. pocket knife in his apartment on his dresser. Id at 52.J

As Ms. Moore was searching for her title in order to confirm ownership to the police, she heard her oar alarm going olf. She went outside and saw the defendant attempt to start the car; On appeal, the defendant argues that the evidence was insufficient to establish the he was unable to do so. They argued obout his use of the car, and at that point she called 911 to defendant's guilt for Third Degree Murder and l'IC, that the verdict was against the weight oflhe

report the attempted theft of her car. They continued to argue, and as they were doing so, the evidence, and that trial counsel was ineffective for failing to call Tamika Brooks to testify that keys slipped from the defendant's hands. Both of them dove to retrieve the keys. She grabbed the defendant acted in self-defense. them first, and the defe~dant slapped her across the face and went back inside. Id. st 20-28. In arguing that the e~idence is insufficient to establi~h the defendant's criminal

After the defendant retreated to the apartment building, Ms. Moore called 91 l again to culpability, the defendant argues both that the Commonwealth has not established causation and tell the dispatcher what had happened. The defendant, back in his epanment, opened u window that the Commonwealth has not established that the defendant was not acting In self-defense, overlooking the car and told Ms. Moore that he was going to "fuck up" her husband. Ms. Moore Evidence presented nt trial is sufficient when, viewed in the light most favorable to the was aucmptlng to start the car so thot she could operate the power windows and raise them, but it Commonwcnlth as verdict winner, the evidence and all reasonable inferences derived therefrom would nol start. Mr. Moore came out lo the car, moving in a wobbly manner. He also attempted are sufficient to establish all elements of the offense beyond o reasonable doubt, Commonwealth

lo start the car, but was unable to do so. Jd at 28-34. v. Baumbommers, 960 A.2d 59, 68 (Po. 2008). The Commonwealth may sustain its burden of As Mr. Moore was attempting to start the car and Ms. Moore was waiting for police lo proving every clement of the crime beyond a reasonable doubt by means or wholly arrive, the defendant came back outside. A young woman followed him out to where the car wos 'Jn her prdhnln1ty hearing testimony, Cathy Moore ,ald that ,he did not know her husband to carry a knife. However, et trlal, ,he e)lpblnt.d lhat she had been eenfused u to what the queslfon meant at the prallminaryhearln&1 end that In any case, he wu not <41T}'lng o lo,lfc during the eonfronr.Jlo» ftl 1"11•· Id. ,r SJ,S4.

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circumstantial evidence. Commonwealth v. Estepp, 17 A.ld 939, 943 (Pa. Super. 2011) (clllng 1143 (l'a. Super. 2009)(clting Commonwealth v, Palmer, 359 A.2d 375 (Po. 1976), dislinguished Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)). The fact-Jlnder is Irce lo on other grounds, Commonwealth v. Pressley, 887 A.2d 220 (Po. 2005)). believe all. pan, or none of the evidence, and credibility determinations rest solely within the Ilere, ii is clear thal the defendant had a duty to retreat, Indeed, as a factual matter, he purview of the fact-tinder. Commonwealth v, Treiber, 874 A.2d 26, JO (Pa. 2005). did not need even to retreat, because his adversary was in the process of doing so when the Murder in the Third Degree Ls any unlawful killing committed with malice, bUI without defendant made his fatal attack. Further, there can be 110 justification defense where there is no the specific intent to kill nor committed in the commisslon of n felonious act, I H Po.C.S. § reasonable belief of imminent danger, as when your much older, inebriated opponent is winded 2502(c); Commonwealth v. Dunphy, 20 A.Jd 1215, 1219 (Pa. Super 2011); See also; I· and Is walking awny from you. The defendant's attack was both cowardly and unjusliliablc Commonwoallh v. Santos, 816 A.id 360, 363-64 (2005). Malice Is defined as: l under the law; this claim is mcrltless, A wickedness of disposition, hardness of heart, cruelly, recklessness of consequences, nnd a mind regardless of social duty, although o particular person may not be intended lo The defendant argues thnt the decedent's dealh was caused by medical circumstances that be injured. Malice mny be found where the defendant consciously disregnrded en unjustified and extremely high risk lhat hia actions mighl cause serious bodily Injury .. arc too remote or attenuated from the underlying assault to hold him criminally accountable for

Dunphy, 20 A.Jd at 1219 (ciling Commonweolthv, D/Stefano, 784 A.2d 574, S82 (1995). the decedent's death. I 8 Pa.C.S. § 303 estabtishes that "[clonduct is tho cause of a result when: Malice can be Inferred from the use of a deadly weapon upon a vital part of lhe victim's body. (I) it is an antecedent but for which the result in question Would not have occurred; and (2) the Commonwea/1/i v. Thomas, 54 A.3d 332, 33S-36 (Pa. 2012). relationship between the conduct and result satisfies any additional cuusal requirements imposed

The defendant argues that the Commonwealth did nol disprove the defendant's claim of by !his title or by the law defining the offense." The dcfeedanrs conduct need not be the only justlflcauon. To prevail on a justiflcution defense, there must be evidence presented Iha! shows cause of the vlctim's death lo order to establish the causal connection required for a finding of the defendant: criminal causation; criminal responsibility may be properly assessed o.galnst an individual whose

"(a) ... reasonably believed 1hal he was in imminent danger of death or serious bodily conduct was a direc! n111I substantlal foctor in producing the death even though other factors injury and that ii was necessary to use deadly force. against the vlctim toprevent such harm; (b) ... was free from faull in provoking the dlfficu!ly which culminated in (he combined with thal conduct lo achieve the result. Commonwealth v. Nunn, 941 A.2d 7S6 (Pa. slaying; and (c) ... did not vlolaie any duty to retreat" Super. 2008), a/foe. denied, 960 A.2d 838 (Pa. 2008)(cmphasis added). Commonwealth v. Samuel, 590 A,2d 1245, 1247·48 (Pa. 1991); see also Commonwealth v. In Commonwealth v, Spout, 94 A.Jd 367 (Pa. Super. 2014)(cn bane), an inebrtated driver Harris, ?OJ A.2d 441, 449 (Pa. 1997). was driving erratically, causing another driver to swerve. This other driver then struck a disabled The use of deadly force is not justified where there is an avenue ofretreal, as long as the van that was pulled to the side of the road; U1e van then struck a tow truck thn1 was slopped Jn defendant knows Iha! avenue of retreat Is nvallablc. Commonwealth v. Ventura, 975 A.2d I \211, fronl ofil. Two people who had been trying lo change the van's tire wore severely injured, and

Circulated 10/27/2015 11:20 AM the people in the swerving car were Injured as well. The inebriated driver did not strike anyone, was a vital part of the emergency medical treatment necessitated hy the defendant's malicious but w•• nevertheless found to be criminally culpable for the aggravated assaults because his behavior. A clogged tracheostomy rube is a known risk of that procedure, and one that the unlawful behavior necessitated the swerve, end thus it was a direct ond substantial cause of'the decedent (like any other similarly-sltuated patient) could not avoid. Brain death, and the resulting Injuries. decedent's eventual withdrawal from life support, necessarily followed therefrom. Because the

In Commonwealth v. Rementer, 598 A.2d 1300 (Pa. Super. 199 I), the Superior Court set defendant's actions were o direct and substaniiel factor in bringing about the defendant's death, forth a two-part test for determining criminal causation. First, the defendant's conduct must be this claim is merltless. an antecedent, but for which the result In question would not hove occurred. Id. at 1305; 18 In claiming that the verdict is against the weight of the evidence, the defendant argues Pa.C.S. § 303(a)(I). A victim's death cannot be entirely attributable to other factors; rather, there that Cathy Moore's testimony is so inconsistent thnt it cannot be relied upon to support a must exist a "causal connection between the conduct and the result of conduct; and causal convlction. Weight of the evidence and sufficiency of the evidence arc discrete inquiries. An connection requires something more than mere coincidence as lo time and place." Rementer, argument that the verdict is contrary to the weight of the evidence concedes !hat there is 598 J\.2d at I 305, n. 3. Second, the results of tho defendant's actions cannot be so extraordinarily sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the remote or attenuated that it would be unfair lo hold the defendant criminully responsible, Id DI weight of the evidence. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). An !JOS. allegation that the verdict is against the weight of the evidence is addressed to the sound

Rementer arose from a sustained and bmtal assault on s woman, who was run over while discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, I IOl (Pa. Super. trying to get help from passing motorists as her assailant chased her. Her attacker was found 2005)(clltng Commonwealth v. S11/liva11, 820 A.2d 795, 805-806 (Pa. Super. 2003); guilty of her murder, and his conviction was upheld on appeal. "In our view, the fatal result of Commonwealth v, Widmer, 744 A.2d 745, 751,752 (Pa. 2000) . . appellant's assault is not rendered unforeseeable merely because the precise an~11cy of death, l.e. "The factflnder is free to believe all, part, or none of the evidence and to determine the the [passing] station wagon, could not hove been foretold. Appellant perpetrated o deadly ossoult credibility of the witnesses." Commonwealth v, Diggs, 949 A.2d 873, 879 (Pa. 2008). A new trial on the decedent in and around on oulomobile on a public street with other moving vehicles In should not be granted because of a mere conflict in tho testimony or because Urn judge on the close proximity." Id at 1308. same facts would have arrived ot n different conclusion. Commonwealth v. Clay, 64 A.3d I 049,

Likewise, here, the defendant leveled a horrifying assault at the decedent, breaking his 1055 (Pa. 20l3l(clrlng Widmer. 744 A.2d at 752). The Superior Court hes explained lhat the test jaw, Md even after the decedent fell unconscious to the ground, the defendant continued his Is whether the evidence is "so tenuous, vogue and uncertain that the verdict shocks tho attack, striking his head again and bi·eaki11g his nose, and then kicking him. The trochootomy conscience of the court." Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003). For

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one to prevail on n challenge of the weigh! of tho evidence, the verdict must be so contrary lo the the defendant, it was obvious that hehad given up the chase at the time the defendant attacked

evidence es to shock one's sense of justice. Id. (citing Commonwealth v. Goodwine, 692 A.:?.d him. Thus there was no ground at lhlll time for tho defendant lo believe he was In imminent

2J3, 236 (Pa. Super. 1997). danger, even If the decedent had a knife. Because the proffered testimony would not have

Here, the defendant's argument a. to supposed incon~lslencics in Cathy Moore's changed the outcome of the trinl, even if the Court hod accepted it as credible, the defendant

testimony is belied by the ample physical and documentary evidence that establishes, his cannot establish any extraordinary circumstance under Holmes that would compel unitary review

culpability in this molter. Again, it is spedficully because the decedent was walking away from in this case.1

the defendant at the time he was brutally attacked that there can be no dispute as to the For the foregoing reasons, the defendant 's judgment of sentence should be affirmed.

defendant's guilt Ms. Moore's testimony was uncontradlcted by the documentary evidence, BY THE COURT, including the video recordings, nnd was completely consistent with all relevant evidence in this

case. This Court finds her testimony lo be credible, This claim is meritless.

Finally, tho defendant asks for a hearing wider the "Bomar exception" to establish

ineffectiveness of trial counsel for failing Co call Tamika Brooks, who witnessed the allack.4 The

defendant claims !hat Brooks would testify that the decedent was brandishing a knife dudng the

fatal encounter.

In Commonwealth v. Holmes, 79 AJd 562 (Pa. 2013), our Supreme Court held that

absent certain specified circumstances, claims of Ineffective assistance of counsel are to be

deferred to pose-conviction review rather than on post-verdict motion, or during direct appeal.

Holmes does not completely close the door on ineffectiveness claims for direct review, but it does make clear that such claims are rarely to be cntertalned, and only where extraordinary

circumstances compel such review. Hero, tho defendant has made no argument as to such extraordinary circumstances. In fact, such clrcumstances arc not present, Cathy Moore gave credible testimony that the decedent was not armed with a knife during the fatal auack.

However, even if the defendant could establish that he had brandished a knife while he chased 4 l Nor does the defendant•pcclfy whether he unders!and, the oe«sslty of waiving review under the Post-Conviction SH Commonwealth v. Domnr·, 826 A.ld 831 (Pa.200)). Review A,1, or whether ho i:, ready to rno.ke such a: wetver. Se, Ho/mu, 19 AJd t\l 56-4. 9 10

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