J-S68018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                                  Appellee

                           v.

TANYA L. LOCKS

                                  Appellant          No. 3321 EDA 2013


               Appeal from the Judgment of Sentence June 28, 2013
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0002084-2012


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 14, 2014

          Tanya Locks pled guilty to one count of murder generally1 and one

count of possession of an instrument of crime (“PIC”)2.     The court held a

degree of guilt hearing to determine the degree of murder or manslaughter3,

and it found Locks guilty of third-degree murder4.       The court sentenced

Locks to concurrent terms of 8½--17 years’ imprisonment for third degree

murder and 6 months--2 years’ imprisonment for PIC.         Locks filed timely

post-sentence motions, which the court denied, and a timely appeal. Locks

and the court complied with Pa.R.A.P. 1925.


____________________________________________


1
    18   Pa.C.S.   §   2502.
2
    18   Pa.C.S.   §   907.
3
    18   Pa.C.S.   §   2503.
4
    18   Pa.C.S.   §   2502(c).
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     In this appeal, Locks argues that the evidence was insufficient to prove

that she committed third degree murder instead of voluntary manslaughter,

and, in the alternative, the finding of third degree murder was against the

weight of the evidence. We affirm.

     We first address Locks’ challenge to the sufficiency of the evidence

adduced during her degree of guilt hearing.       The trial court accurately

summarized the evidence as follows:

           At [Locks’] degree of guilt hearing, [Locks] stipulated
           to all of the facts presented by the Commonwealth.
           N.T. 4/11/2013 at 31, 36.         The Commonwealth
           presented, by stipulation, the testimony of Dr. Sam
           Gulino and Philadelphia Police Officers Brian Stark,
           Stacey     Valentine,    and    Howard      Lee.    The
           Commonwealth also offered, by stipulation, [Locks’]
           confession to police on the day of the killing. Viewed
           in the light most favorable to the Commonwealth as
           the verdict winner the evidence established the
           following.

           On December 10, 2011, at approximately 3:30 a.m.,
           [Locks] returned to her home at 4451 North Franklin
           Street after a night out drinking with friends. N.T.
           4/11/2013 at 60-61.        When she arrived home,
           [Locks] encountered Anita McKeithan [the victim],
           her girlfriend of 13 years, with whom she lived. N.T.
           4/11/2013 at 62. As the two women stood in the
           living room, [the victim] asked [Locks] where she
           had been, and [Locks] told her she had been out
           drinking with friends. N.T. 4/11/2013 at 62. [the
           victim] began ‘swinging on’ [Locks], punching her
           four or five times. N.T. 4/11/2013 at 62-63. [Locks]
           went to the refrigerator, which was in the living
           room, retrieved a carton of eggs, and began
           throwing the eggs at [the victim]. N.T. 4/11/2013 at
           63. [Locks] then ran into the kitchen and grabbed
           two knives. N.T. 4/11/2013 at 63. [The victim] fled


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            upstairs, with [Locks] chasing her. N.T. 4/11/2013 at
            63.

            When the two women reached the top of the stairs,
            [the victim] swung at [Locks], and [Locks] stabbed
            [the victim] in the chest. NJ. 4/11/2013 at 63-64.
            [The victim] fell to the ground, and [Locks] went
            outside and asked a friend to call the police. N.T.
            4/11/2013 at 64. [The victim] was pronounced dead
            at the scene. N.T. 4/11/2013 at 54. She had
            sustained two stab wounds to the chest one with a
            depth of three to four inches, and one more
            superficial wound. N.T. 4/11/2013 at 54-56. The
            deeper wound to the chest caused her to bleed to
            death within one to two minutes. N.T. 4/11/2013 at
            55. [The victim] also had defensive wounds to her
            hands. N.T. 4/11/2013 at 56-57.

            [Locks] was arrested and gave a statement to the
            police. N.T. 4/11/2013 at 59-66. When asked by
            detectives why she chased [the victim] up the stairs
            with the knives, instead of letting [the victim] run
            away from her, [Locks] responded, '[c]ause she was
            talking shit, to be honest with you....Bullshit. She
            was calling me a punk bitch and things like that.’
            N.T. 4/11/2013 at 66.

Trial Court Opinion, pp. 2-3.

      A brief summary of the procedure for degree of guilt hearings will

place Locks’ challenge to the sufficiency of the evidence in proper context.

Pennsylvania Rule of Criminal Procedure 590 provides in relevant part:

            In cases in which the imposition of a sentence of
            death is not authorized, when a defendant enters a
            plea of guilty or nolo contendere to a charge of
            murder generally, the degree of guilt shall be
            determined by a jury unless the attorney for the
            Commonwealth elects to have the judge, before
            whom the plea was entered, alone determine the
            degree of guilt.


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Pa.R.Crim.P. 590(c).        A plea to murder generally is not the same as a

regular guilty plea:

              A plea of guilty to murder generally is a unique plea,
              unlike anything else provided in statute or decisional
              law. It appears to be like a guilty plea because the
              defendant concedes at least some level of guilt. But
              the option of proceeding under Rule 590(c) is not the
              same as a defendant pleading guilty to the charges
              filed against her. In a guilty plea, no evidence is
              presented against the defendant. The judge in her
              colloquy merely assures that the defendant is aware
              of the facts underlying the plea. A Rule 590(c)
              proceeding, on the other hand still requires the
              presentation of evidence, the arguments of counsel
              and the finding of facts in support of a verdict. As a
              practical matter, the procedure set out in Rule
              590(c) is akin to a bench or waiver trial. The criminal
              defendant first waives her right to be tried by a jury.
              Thereafter, evidence is presented against her by the
              district attorney and her counsel advocates on her
              behalf via testimony, argument or both. At the end
              of this proceeding, a verdict is rendered by the court.
              The Rule in essence provides for a form of a waiver
              trial for the defendant facing murder charges.

Commonwealth v. Passmore, 857 A.2d 697, 710 (Pa.Super.2003)

(citations omitted). In a degree of guilt hearing, the trial court determines

whether the homicide was murder of the first, second, or third degree, or

voluntary manslaughter5.         Id. at 710 (citing Commonwealth v. Myers,

392 A.2d 685, 687 (1978)).

____________________________________________


5
  Neither Myers nor Passmore explains why the court should consider
voluntary manslaughter as a potential verdict in a degree of guilt hearing
when the defendant enters a guilty plea to murder generally. Nevertheless,
we consider this procedure logical. Our Supreme Court has held that a
(Footnote Continued Next Page)


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      In this case, the parties agreed that the appropriate verdict was either

third degree murder or voluntary manslaughter. The Commonwealth did not

seek a verdict of first or second degree murder. Our standard of review for

a challenge to the sufficiency of the evidence in a degree of guilt hearing is

the same as a challenge to the sufficiency of the evidence in any other

criminal trial:

             [W]hether[,] viewing all the evidence admitted at
             trial   in    the  light most     favorable   to  the
             [Commonwealth as 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.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted); see also Passmore, supra, 857 A.2d at 706 (analyzing evidence

                       _______________________
(Footnote Continued)

defendant charged with murder is entitled to a jury instruction on voluntary
manslaughter when the evidence reasonably supports such a verdict.
Commonwealth v. Cox, 686 A.2d 1279, 1291 (Pa.1996). Analogously, in
a degree of guilt hearing, the court should determine whether to find the
defendant guilty of voluntary manslaughter instead of murder when the
evidence reasonably supports this degree of guilt.



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adduced during degree of guilt hearing under sufficiency of the evidence

standard).

      Third-degree murder has been defined as a killing done with malice

that was "neither intentional nor committed during the perpetration of a

felony."    Commonwealth v. Reilly, 549 A.2d 503, 510 (Pa.1988). The

requisite malice for a third-degree murder conviction exists "where there is a

wickedness of disposition, hardness of heart, cruelty, recklessness of

consequences, and a mind regardless of social duty."               Commonwealth v.

Tielsch, 934 A.2d 81, 94 (Pa.Super.2007).               Proof that a defendant acted

with malice in killing a victim may be found from the circumstances

attendant to the killing.         Commonwealth v. Geiger, 944 A.2d 85, 90

(Pa.Super.2008) (citations omitted).           Malice may also be inferred through

circumstantial evidence such as the use of a deadly weapon upon a vital part

of the victim's body. Commonwealth v. Arrington, 86 A.3d 831, 840

(Pa.2014).

      In    contrast,    a   "person    who    kills   an   individual     without    lawful

justification commits voluntary manslaughter if at the time of the killing he is

acting     under   a    sudden    and   intense    passion     resulting    from     serious

provocation by (1) the individual killed[.] ...”            18 Pa.C.S. § 2503(a).        An

objective standard determines whether the provocation was sufficient to

support     the    defense   of   “heat   of    passion”     voluntary     manslaughter.

Commonwealth v. Miller, 987 A.2d 639, 650 (Pa.2009); see also 18


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Pa.C.S. § 2301 (defining serious provocation as “conduct sufficient to excite

an intense passion in a reasonable person").      As the Supreme Court has

explained, "[t]he ultimate test for adequate provocation remains whether a

reasonable man, confronted with this series of events, became impassioned

to the extent that his mind was incapable of cool reflection."    Miller, 987

A.2d at 650.    It is for the fact-finder to determine whether the act that

supposedly incited the defendant actually occurred, and if it did whether it

would have incited a reasonable person.      Commonwealth v. Marks, 704

A.2d 1095, 1099 (Pa.Super.1997).

     Significantly, mere words or slight assault do not constitute sufficient

provocation    to   reduce   a   killing   from   murder   to   manslaughter.

Commonwealth v. Whitfield, 380 A.2d 362, 366 (Pa.1977) (trivial dispute

over blackeyed peas and leaving a door open was insufficient provocation);

Commonwealth v. Lassiter, 321 A.2d 902, 905 (Pa.1974) (argument over

three dollar bet was insufficient provocation); Commonwealth v. Cisneros,

113 A.2d 293, 296 (Pa.1955) (wife's racial slurs to husband emphasized by

sticking her finger at his shoulder was insufficient provocation).    As our

Supreme Court has stated, "[t]he law of Pennsylvania is clear that no words

of provocation, reproach, abuse or slight assault are sufficient to free the

party from guilt of murder" by reducing the crime to manslaughter.

Cisneros, 113 A.2d at 296.




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      Viewed in the light most favorable to the Commonwealth, the evidence

is sufficient to sustain Locks’ conviction for third degree murder.      The

evidence demonstrates that Locks stabbed the victim because the victim’s

insults angered her.   The circumstances of the stabbing -- particularly the

use of a deadly weapon against a vital part of the victim’s body and the fact

that Locks stabbed her over petty insults -- provide sufficient evidence to

justify a finding of malice, the mens rea of third degree murder. Neither the

victim’s insults nor her swing at Locks moments before the stabbing reduce

Locks’ crime from murder to manslaughter. Cisneros, supra.

      Locks contends that the trial court misconstrued the evidence by

"isolating one event in a continuous chain of occurrences, rather than as a

seamless history." Brief for Appellant, p. 16. Locks’ version of events is as

follows: Locks lived together with the victim for thirteen years as a “loving

but volatile” couple, a euphemism for the frequent incidents of domestic

violence during their relationship.    The victim became violent when she

ingested cocaine, and on the night of her death, she was high on both

cocaine and alcohol. On the night the victim died, the couple had a violent

fight that left their house in ruins, but Locks insists that she stabbed the

victim only because the victim punched her in the face at the top of the

stairs. As proof, Locks points to her statement to a police detective:

            Q. [Homicide Detective]: Why are you here?
            A. [Locks]: Cause I poked my girlfriend after she
            punched me in my face. When she get high on
            cocaine she beat on me. . .

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            Q. After you grabbed the knives and Anita ran away,
            why did you chase her down with the knives? Why
            didn't you just let her run away?
            A. Because she was talking shit, to be honest with
            you.
            Q. What kind of shit was she talking?
            A. Bullshit. She was calling me a punk bitch and shit
            like that. That's when she punched me in the lip, and
            that's when I poked her.

N.T., 4/11/13, pp. 61, 66 (emphasis added).

      Locks’ argument is flawed for two reasons. First, while the trial court

found that the victim “swung at” Locks at the top of the stairs, it was silent

as to whether the victim made contact. We infer from this silence that the

court concluded the victim did not strike Locks. The trial court was free to

make this determination, because as trier of fact, it was free to believe all,

part or none of the evidence. Commonwealth v. Kearney, 92 A.3d 51, 64

(Pa. Super. 2014). By insisting that the victim struck her at the top of the

stairs, Locks erroneously construes the evidence in the light most favorable

to her instead of in the light most favorable to the Commonwealth.

      Second, and more importantly, the court was free to believe, and in

fact did believe, that Locks stabbed the victim only because the victim’s

insults enraged her. As the court reasoned:

            It is true that [the victim] had been drinking and
            using cocaine prior to the killing, and that the police
            had been called to the women's home for domestic
            violence in the past. . .It is also true that, when [the
            victim] and [Locks] were downstairs, [the victim] hit
            [Locks] several times. . .However, according to
            [Locks], the reason that she stabbed [the victim]

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            was not due to that combination of factors. Rather,
            by [Locks’] own admission to the police, the reason
            that she chased after [the victim] and stabbed her
            was because [the victim] was taunting her and
            calling her names.

Trial Court Opinion, p. 4.      Viewed in the light most favorable to the

Commonwealth, the record supports these findings.          And as discussed

above, the determination that Locks stabbed the victim in a vital organ

based on petty insults provides sufficient evidence of Locks’ guilt for third

degree murder.

      In her second argument on appeal, Locks contends that her conviction

is against the weight of the evidence. We disagree.

      The law pertaining to weight of the evidence claims is well-settled. The

weight of the evidence is a matter exclusively for the finder of fact who is

free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.   Commonwealth v. Forbes, 867 A.2d 1268,

1273–74 (Pa.Super.2005).        “Our purview is extremely limited and is

confined to whether the trial court abused its discretion in finding that the

jury verdict did not shock its conscience. Thus, appellate review of a weight

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.” Commonwealth v. Knox, 50 A.3d 732, 738

(Pa.Super.2012). An appellate court may not reverse a verdict unless it is




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so contrary to the evidence as to shock one's sense of justice. Forbes, 867

A.2d at 1273–74.

      In our opinion, the trial court acted well within its discretion in finding

that its verdict of third degree murder did not shock its conscience. Locks

would have us conclude that the trial court myopically focused on the

moment of the stabbing, and that the court ignored the long and turbulent

relationship between Locks and the victim or the victim’s assault on Locks

downstairs that preceded the stabbing at the top of the stairs. We conclude

that the court carefully balanced all of the evidence before arriving at its

verdict.   Notwithstanding the evidence emphasized by Locks, there was

other evidence that weighed in favor of third degree murder – in particular,

Locks’ act of chasing the victim upstairs with two knives in reaction to the

victim’s insults and Locks’ infliction of multiple stab wounds on a vital part of

the victim’s body, including one stab wound 3-4 inches deep.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2014




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