J.S43037/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
JOHN M. SMALLWOOD,                          :
                                            :
                            Appellant       :     No. 2231 EDA 2013


              Appeal from the Judgment of Sentence July 26, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0006178-2012

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 07, 2015

        Appellant, John M. Smallwood, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and his convictions for murder in the first degree1 and possession of an

instrument of crime2 (“PIC”). Appellant contends (1) the trial court erred in

refusing to permit him to represent himself, (2) the evidence was insufficient

to find him guilty of murder in the first degree, (3) the verdict on the charge

of murder in the first degree was against the weight of the evidence, and (4)

counsel was ineffective during closing argument. We affirm.

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 907(a).
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     The trial court summarized the facts of this case as follows:

            These charges arose out of an argument between
        Appellant and his lover of approximately six (6) years,
        whom Appellant lived with off and on. The decedent,
        Shawn Andrews (“Andrews”), was killed on Thursday,
        March 22, 2012 at Andrews’ apartment at 19th and
        Bainbridge Streets. At approximately 2 a.m. that morning,
        Appellant and Andrews were getting high with female
        friends. After the females left, Appellant and Andrews
        began arguing over the purchase of additional drugs. This
        argument [led] to Andrews telling Appellant he had to
        leave.    Appellant refused to leave and as Appellant
        proceeded past Andrews towards the bedroom, Andrews
        pushed him.        Their argument grew into a physical
        altercation.     Andrews picked up a pair of scissors,
        Appellant grabbed a knife, and the two men began to fight.
        Appellant initially stabbed Andrews in the side of the jaw
        and Andrews began to scream.            Appellant stabbed
        Andrews approximately seven (7) times in the head, neck,
        and back until the knife bent, causing Andrews to fall to
        the ground. As Andrews lay on his back on the floor
        screaming, Appellant grabbed a clothing iron, and got on
        top of Andrews. Appellant beat Andrews in the head with
        the iron until the metal plate from the iron detached,
        breaking     the    iron.    Appellant   struck   Andrews
        approximately 28 times with the iron.

           As Andrews lay on the floor bleeding out, Appellant
        grabbed a blanket from inside the apartment, wrapped
        Andrews’ body, and [dragged] Andrews into the closet in
        the bedroom. After doing so, Appellant slept in Andrews’
        bed and awoke the next morning on Friday, March 23,
        2012.    Before Appellant left Andrews’ apartment, he
        turned the thermostat down to fifty degrees Fahrenheit
        (500 F) to cover the smell of Andrews’ dead body.
        Appellant then collected several items including bloody
        clothes and the knife he used to kill Andrews, placed them
        in a blue bag, and dumped the bag in a trash can at the
        69th Street Market-Frankford Line Terminal.

          On Friday, March 23, 2012, after Andrews failed to
        meet with his friend of twenty-five (25) years, Seavin
        Burnett (“Burnett”), and failed to answer Burnett’s


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       numerous phone calls, Burnett went to Andrews’
       apartment     with   his  roommate,     Derrick    Harrison
       (“Harrison”), to check on Andrews. Burnett used his key
       to gain access to the apartment as Harrison waited
       outside. Burnett opened the door and noticed it was dark
       and cold. Burnett called out for Andrews a few times with
       no response and then locked the door and left with
       Harrison.   Burnett and Harrison returned to Andrews’
       apartment the following day, Saturday, March 24, 2012, in
       the afternoon.      Both Burnett and Harrison entered
       Andrews’ apartment and once they were inside, noticed
       sheets, blankets and a red liquid on the floor in the living
       room area. Harrison thought it might be blood so both
       Burnett and Harrison went back to their car and began
       making phone calls to the area hospitals as they rode
       towards their home, believing Andrews had been hurt and
       possibly gone to a hospital to get aid. No hospital had a
       record of Andrews having received treatment. When they
       could not locate Andrews at the area hospitals, Burnett
       called 911. Burnett explained to the operator that he had
       been to Andrews’ apartment, that things looked unusual,
       and that there appeared to be blood on the floor. The 911
       operator asked Burnett if he would go back to Andrews’
       apartment and wait for the police; Burnett agreed.

          In less than five (5) minutes from the time the call was
       dispatched by the 911 operator, Philadelphia Police Officer
       Carmen Palmiero (“Officer Palmiero”) and her partner,
       Officer Sydemy Joanis (“Officer Joanis”) arrived at
       Andrews’ apartment and met Burnett and Harrison. Officer
       Palmiero and Officer Joanis advised Burnett and Harrison
       to stay outside as they entered Andrews’ apartment.
       Officer Palmiero and Officer Joanis noticed the cold
       temperature of the apartment, blood on the sink and on
       the floor in the bathroom on the first floor, identifying a
       footprint as well, which they considered to be “red flags” of
       a possible crime.      Officers Palmiero and Joanis then
       headed downstairs. They noticed a large amount of blood
       on the floor and footprints, so they began walking across
       the furniture as to not disturb the potential crime scene.
       Officers Palmiero and Joanis, with guns drawn, checked
       the kitchen for potential suspects and after they cleared
       the kitchen, they headed into the bedroom where they
       noticed a large red print at the bottom of the closet door.


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         Officer Joanis kept his gun drawn as Officer Palmiero
         opened the closet door. Inside the closet, they found a
         large blanket at the bottom. The officers pulled back the
         blanket and uncovered the body of a black male, later
         identified as Andrews, whom they believed had been dead
         for a few days at that point. Paramedics arrived as they
         were uncovering Andrews’ body and Andrews was
         pronounced dead on the scene by Medic 40 at 5:40 p.m.

Trial Ct. Op., 12/20/13, at 3-5.

      Appellant was sentenced to a mandatory sentence of life in prison

without the possibility of parole. This timely appeal followed. Appellant filed

a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of

on appeal and the trial court filed a responsive opinion.

      Appellant raises the following issues for our review:

         I. Is [Appellant] entitled to a new trial as a result of court
         error where the court failed and refused to permit [him] to
         represent himself, and where there was no good reason for
         such failure?

         II. Is [Appellant] entitled to an arrest of judgment on the
         charge of Murder in the First Degree where the
         Commonwealth did not prove its case beyond a reasonable
         doubt; where the Commonwealth did not establish the
         element of the crime such as malice, premeditation and a
         specific intent to kill; and where there is insufficient
         evidence to sustain the verdict?

         III. Is [Appellant] entitled to a new trial on the charge of
         Murder in the First Degree as the verdict is not supported
         by the greater weight of the evidence?

         IV. Is [Appellant] entitled to a new trial as the result of
         palpable and obvious ineffective assistance of counsel
         during closing argument?

Appellant’s Brief at 3.



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      First, Appellant contends the trial court violated his constitutional right

to self-representation when it found his waiver of the right to counsel was

not knowing, intelligent and voluntary. Appellant’s Brief at 7.

      We review the trial court’s denial of a defendant’s request to proceed

pro se for an abuse of discretion. Commonwealth v. El, 977 A.2d 1158,

1167 (Pa. 2009). The Pennsylvania Supreme Court has “defined a court’s

discretion as the foundation of reason, as opposed to prejudice, personal

motivations, caprice or arbitrary actions. An abuse of that discretion is not

merely an error of judgment, but . . . [a] manifestly unreasonable . . . result

of partiality, prejudice, bias or ill will.” Id. (quotation marks and citation

omitted).

             A criminal defendant’s right to counsel under the
         Sixth Amendment includes the concomitant right to
         waive counsel’s assistance and proceed to represent
         oneself at criminal proceedings. Faretta v. California,
         422 U.S. 806 [ ]. The right to appear pro se is
         guaranteed as long as the defendant understands the
         nature of his choice. In Pennsylvania, Rule of Criminal
         Procedure 121 sets out a framework for inquiry into a
         defendant’s      request       for    self-representation.
         Pa.R.Crim.P. 121. Where a defendant knowingly,
         voluntarily, and intelligently seeks to waive his right to
         counsel, the trial court, in keeping with Faretta, must
         allow the individual to proceed pro se. See
         Commonwealth v. Starr, [ ] 664 A.2d 1326, 1335
         ([Pa.] 1995) (holding that a defendant must
         demonstrate a knowing waiver under Faretta). See
         also Commonwealth v. McDonough, [ ] 812 A.2d
         504, 508 ([Pa.] 2002) (concluding that Faretta
         requires an on-the-record colloquy in satisfaction of
         Pa.R.Crim.P. 121, which colloquy may be conducted by
         the court, the prosecutor, or defense counsel.)



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           The right to waive counsel’s assistance and continue
        pro se is not automatic however. Rather, only timely
        and clear requests trigger an inquiry into whether the
        right is being asserted knowingly and voluntarily. . . .
        Thus, the law is well established that “in order to invoke
        the right of self-representation, the request to proceed
        pro se must be made timely and not for purposes of
        delay    and   must     be    clear  and     unequivocal.”
        Commonwealth v. Davido, [ ] 868 A.2d 431, 438
        (2005) [ ] ([Pa.] 2005).

Id. at 1162–63 (some citations and footnotes omitted).

     Pa.R.Crim.P. 121 provides in pertinent part:

        (2) To ensure that the defendant’s waiver of the right to
        counsel is knowing, voluntary, and intelligent, the judge or
        issuing authority, at a minimum, shall elicit the following
        information from the defendant:

           (a) that the defendant understands that he or she
           has the right to be represented by counsel, and the
           right to have free counsel appointed if the defendant
           is indigent;

           (b) that the defendant understands the nature of the
           charges against the defendant and the elements of
           each of those charges;

           (c) that the defendant is aware of the permissible
           range of sentences and/or fines for the offenses
           charged;

           (d) that the defendant understands that if he or she
           waives the right to counsel, the defendant will still be
           bound by all the normal rules of procedure and that
           counsel would be familiar with these rules;

           (e) that the defendant understands that there are
           possible defenses to these charges that counsel
           might be aware of, and if these defenses are not
           raised at trial, they may be lost permanently; and




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              (f) that the defendant understands that, in addition
              to defenses, the defendant has many rights that, if
              not timely asserted, may be lost permanently; and
              that if errors occur and are not timely objected to, or
              otherwise timely raised by the defendant, these
              errors may be lost permanently.

Pa.R.Crim.P. 121(2)(a-f).

     Our Supreme Court in El held:

           We examine first whether [the a]ppellant’s request for
        self-representation was a timely one.        If it was, [the
        a]ppellant was entitled to a “Faretta colloquy,” in
        satisfaction of Rule 121, to ascertain on the record
        whether his request to waive counsel’s assistance was
        knowing, voluntary, and intelligent. Generally, the courts
        of this Commonwealth have agreed with the federal courts
        and those of our sister states that a request for pro se
        status is timely when it is asserted before “meaningful trial
        proceedings” have begun. Commonwealth v. Jermyn, [
        ] 709 A.2d 849, 863 ([Pa.] 1998) (noting with approval the
        Superior Court’s reliance on United States v. Lawrence,
        605 F.2d 1321 (4th Cir.1979)). See Commonwealth v.
        Vaglica, [ ] 673 A.2d 371, 373 ([Pa. Super.] 1996)
        (adopting “meaningful trial proceedings” standard utilized
        in Lawrence).       In the context of a jury trial, the
        consensus is that proceedings become “meaningful” as
        soon as the selection of jurors begins.

El, 977 A.2d at 1163 (some citations omitted).

     The right to self-representation can be waived.        Our Supreme Court

has stated:

           All defendants, even those who may display the
        potential to be disruptive, have the right to self-
        representation. Commonwealth v. Africa, [ ] 353 A.2d
        855, 864 ([Pa.] 1976). In such instances, however, it is
        advisable that stand-by counsel be appointed. Id. . . . As
        explained in Africa, in such circumstances:




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            The court should explain to the defendant the
            standards of conduct he will be expected to observe.
            If the defendant misbehaves, he should be
            warned that he will be removed from the court,
            his right to represent himself will be considered
            waived, and the trial will continue in his
            absence with standby counsel conducting the
            defense. If the defendant again misbehaves, these
            measures should be taken. The defendant must be
            made to realize that his disruptive tactics will result
            only in his exclusion from the courtroom. His case
            will be tried according to law, in an attempt to do
            justice, whether he cooperates or not.

          Id. . . .

Commonwealth v. Abu-Jamal, 720 A.2d 79, 109 (Pa. 1998) (emphasis

added).

      Instantly, the trial court opined that it

          attempted to colloquy [Appellant] regarding his request to
          waive his right to counsel and proceed pro se. Throughout
          these proceedings, Appellant was unwilling to cooperate
          and was disruptive.      When this [c]ourt attempted to
          colloquy Appellant, Appellant replied “Don’t say shit to me”
          and voluntarily exited the courtroom. After this incident,
          Appellant returned to the courtroom where this [c]ourt
          again attempted to colloquy [him] regarding his request to
          represent himself and to ensure that his waiver of counsel
          was knowing, voluntary, and intelligent.        Taking into
          consideration the severity of the crimes with which
          Appellant was charged and the possible sentence of
          mandatory life without parole that was faced by Appellant,
          this [c]ourt determined that the responses Appellant
          provided during the colloquy did not satisfy the knowing,
          voluntary, and intelligent requirements for waiver of
          counsel.

Trial Ct. Op. at 10 (citations to record omitted). We agree no relief is due.




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      In the case sub judice, on the day the jury was to be selected, while

the court was hearing pre-trial motions, Appellant stated he did not want

counsel to represent him.      N.T., 7/22/13, at 10.     The Court instructed

Appellant to “[b]e quiet.” Id. Appellant responded: “I don’t want this guy

representing me.” Id. The court continued hearing pre-trial motions.

      Appellant again interrupted the proceedings and stated: “Your Honor, I

don’t want this man to defend me. The Dude is not going to be my lawyer.

I don’t trust him. I don’t believe in him. He’s not been trying to help me.

I’ll get my own attorney.” Id. at 13.   Appellant and the court continued the

discussion until Appellant was excused from the courtroom following the

judge’s admonition that the trial would “proceed in absentia . . . .” and

Appellant’s statement: “Y’all tripping.” Id. at 18.

      Pre-trial motions continued and Appellant returned to the courtroom.

The court officer attempted to administer the oath and Appellant refused to

be sworn in. Id. at 23. The court began to explain the jury trial procedure

to him. Id. at 24-25. Appellant interrupted and asked if he could represent

himself. Id. at 26. The court stated that he could not represent himself “at

this point.” Id. Appellant responded:

         Come on. My life is on the line. You telling me I can’t
         defend myself. I don’t want him as my attorney. So when
         I come back on appeal and get a second trial─you know,
         this shit is a sham. I don’t know if y’all have some money
         involved in this shit or not, but this shit is a sham. I don’t
         want him. He’s an ineffective counsel. I do not want him
         as my attorney. I’ll get my own. Give me seven days. I



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        don’t want him. All right. Then leave me the fuck alone.
        Take me back to jail.

        The Court: All right. Let me just say this.

        [Appellant]: Don’t say shit to me.

        The Court: . . . The record will reflect that [Appellant] left
        the courtroom apparently voluntarily with the─in the
        presence of the sheriff.

        ([Appellant] exiting the courtroom.)

        (Pause.)

        ([Appellant] entering the courtroom.)

Id. at 26-27.

     The court conducted the following colloquy regarding Appellant’s

request to waive his right to counsel and proceed pro se.           The court

explained to Appellant that it would ask him a series of questions to

determine whether he would be permitted to represent himself. Id. at 27.

Appellant was verbally unresponsive when the court asked him if he

understood the court’s purpose in asking him certain questions.          Id.   The

court informed Appellant that he had the right to be represented by counsel

and that if he could not afford an attorney, an attorney would be appointed

to represent him. Id. at 27.

     The court asked Appellant if he knew the elements of the crimes with

which he was charged, viz., murder and PIC.           Id. at 28.     Appellant

responded “Yes.” Id.   The court stated:




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       Tell me, please, the elements of murder. What does the
       Commonwealth have to prove─you are charged with
       murder generally, which means that the Commonwealth
       would be proceeding both on first degree murder, as well
       as on third degree murder.

       Do you understand that?

       [Appellant]: No, no really.

       The Court: Fine enough. That is the situation you are
       facing today. You’re also charged with [PIC].

       Now, on the murder in the first degree, are you aware that
       if you’re convicted of that charge that you would be
       sentenced─the [c]ourt would have no option but to
       sentence you to life in prison? Did you know that?

       [Appellant]: Twenty-five to 50 is life. Shit. Like I’m in my
       40’s, so nothing─I mean that don’t scare me.

                                 *     *      *

       The Court: . . . Do you understand the nature of the
       charges that are brought against you?

       [Appellant]: Yes, ma’am.

       The Court: Are you aware of the possible ranges of
       sentence in this case?

       [Appellant]: Yes, ma’am.

       The Court: Tell me what the ranges─

       [Appellant]: I get a life in prison.

       The Court: What about the murder in the third degree?

       [Appellant]: I guess that’s 25-50. That’s what they offer.

       The Court: You’re guessing. What about on [PIC]?

       [Appellant]: I don’t know.


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         The Court: . . . Do you understand that if you waive your
         right to counsel that you are still bound by all of the rules
         that would apply for an attorney in this case?

         [Appellant]: Say that again?

         The Court: If you were permitted to represent yourself─

         [Appellant]: Yes.

         The Court: ─that you would be held to the same standard
         as if you were represented by counsel.

         [Appellant]: All right.

Id. at 28-29, 30-31.

      The court inquired as to whether Appellant understood (1) the rules of

selecting a jury, (2) how to make an opening statement, (3) how to cross-

examine witnesses, and (4) applicable deadlines which could result in

waiver. Id. at 31-34.     Appellant responded: “I think you are trying to get

technical with me.” Id. at 34. The Court stated: “This is a very technical

business . . . .” Id. Appellant responded: “I understand that, Your honor.

This is why I said I would like to get me another attorney. . . .” Id.

(emphasis added). Appellant referred to counsel as “a fucking liar.” Id. at

42. The court found that Appellant was “not prepared to represent himself,

that he [was] not fully apprised of the law and the rulings of the [c]ourt that

would be necessary to allow him to provide an adequate representation in

this matter, so the request to represent [him]self is denied.” Id. at 46.




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      Initially, we consider whether the request to proceed pro se was

timely.   Because the jury selection process had not begun, it was timely. 3

N.T. at 53; See El, 977 A.2d at 1163.        We decline to find that Appellant

waived the right to represent himself based upon his disruptive behavior in

the courtroom. See Abu-Jamal, 720 A.2d at 110.

      We find the trial court followed the framework set forth in Pa.R.Crim.P.

121 when conducting its inquiry to determine whether Appellant should be

permitted to proceed pro se. See Pa.R.Crim.P. 121; El, 977 A.2d at 1163.

We discern no abuse of discretion by the trial court’s denial of Appellant’s

request to poceed pro se. See El, 977 A.2d at 1167.

      Next, Appellant contends he is entitled to an arrest of judgment on the

charge of first degree murder because the evidence was insufficient to

sustain the verdict.4 He avers that even if we assume he acted with malice,

the Commonwealth did not prove premeditation or a specific intent to kill.5

      Appellant argues:



3
 We note that the first panel of jurors was excused at the conclusion of the
Rule 121 colloquy. N.T., 7/22/13, at 69.
4
  Appellant did not file a post-sentence motion. 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).
5
  We note that Appellant stated to the court, out of the presence of the jury:
“There’s never been a denial about me committing the crime.” N.T.,
7/22/13, at 41.



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         Assuming that [he] acted with malice, the Commonwealth
         did not prove premeditation. While premeditation can be
         formed in but a second or so, it remains that it must be
         formed. . . .       [T]he beating with the pipe did not
         demonstrate premeditation, but demonstrated a temporary
         disassociation from the civilities of life and while [he] must
         be held accountable for the crime, the crime to be held
         accountable for was Murder in the Three [sic] Degree and
         not First Degree Murder. In that the Commonwealth did
         not prove premeditation nor a specific intent to kill, the
         evidence is insufficient. . . .

Appellant’s Brief at 14. We find no relief is due.

      “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. . . .

                                  *     *      *

             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.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)

(citations and quotation marks omitted).

      Section 2502(a) of the Crimes Code defines first degree murder:

            (a) Murder of the first degree.─A criminal homicide
         constitutes murder of the first degree when it is committed
         by an intentional killing.


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18 Pa.C.S. § 2502(a).

     Our Pennsylvania Supreme Court has stated:

           In order to sustain a conviction for first-degree murder,
        the Commonwealth must demonstrate that a human being
        was unlawfully killed; the defendant was responsible for
        the killing; and the defendant acted with malice and a
        specific intent to kill, i.e., the killing was performed in an
        intentional, deliberate, and premeditated manner. Specific
        intent may be established through circumstantial
        evidence, such as the use of a deadly weapon on a
        vital part of the victim’s body.

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citations

omitted and emphasis added).     “[T]he intent to kill may be formulated in

seconds.” Commonwealth v. Baez, 759 A.2d 936, 938 (Pa. Super. 2000)

     The trial court found the evidence was sufficient to sustain a conviction

for first degree murder. The court opined:

        Appellant gave a statement to police, which was read into
        the record by Detective Francis Kane, describing the
        incident. In his statement, Appellant stated that he had
        known Andrews for approximately seven (7) or eight (8)
        years. Appellant stated that he was with Andrews in the
        early morning of March 22, 2013, getting high with
        females at Andrews’ apartment. Appellant stated that
        after the females left, an argument ensued between him
        and Andrews over the potential purchase of more drugs.
        Appellant walked into the bedroom and laid down.
        Appellant stated Andrews walked into the kitchen and
        began slamming pots, at which point Appellant got out of
        bed and they began to argue again. Appellant stated that
        Andrews told Appellant he “had to roll” but Appellant
        refused and Appellant stated that after that argument
        started, “then everything went boom.” Appellant stated
        that he might have pushed Andrews on the way back to
        the bedroom and that after that, Andrews pushed him and
        the two men began to fight. Appellant stated that he


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        grabbed a knife and Andrews grabbed a pair of scissors.
        Appellant stated that he stabbed Andrews with the knife in
        the side of the jaw and Andrews “lost the scissors.”
        Appellant stated the knife he had “bent up” so Appellant
        grabbed the iron. Appellant stated that as Andrews laid on
        his back, Appellant got on top of Andrews, and “hit him
        with the iron until it broke.” While Andrews was lying on
        the floor bleeding out, Appellant covered Andrews with a
        quilt, stating that he “didn’t want to see [Andrews’] face.
        Appellant then stated that he knew from watching
        television that rigor mortis would set in and he would not
        be able to move Andrews’ body if he waited so he
        [dragged] Andrews’ body into the closet.

           Appellant stated that after he put Andrews’ body into
        the closet, Appellant “passed out on the bed.” Appellant
        stated that he awoke on Friday, March 23, 2012, gathered
        his things, and “turned the thermostat up.” Appellant
        stated that he took the knife, bloody shirt, bloody pants,
        and bloody socks and placed the items in a blue canvas
        bag, which he disposed of in a trash can at the 69th Street
        Market-Frankford Line terminal.

Trial Ct. Op. at 6-7 (references to record omitted).            The trial court

concluded that viewing the evidence in the light most favorable to the

Commonwealth, the evidence was sufficient to sustain the verdict. Id. at 8.

     At trial, Marlon Osbourne, M.D., assistant medical examiner for the

Philadelphia Medical Examiner’s Office, testified as an expert in the area of

forensic pathology. N.T., 7/24/13, at 104, 110. Dr. Osbourne performed an

autopsy on Andrews.    Id. at 111.     The cause of death was multiple stab

wounds. Id. at 113. The stab wound to the left side of Andrews’ neck was

the fatal wound.   Id. at 117-18.    “Unless he received immediate medical

attention, he would have bled out within minutes.” Id. Appellant inflicted

the wounds standing behind Andrews.           Id. at 120.   It was possible that


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Andrews was lying on his stomach when the wounds were inflicted. Id. at

120-21. There were defensive wounds on Andrews’ hands. Id. at 121.

     There were twenty-eight linear abrasions of blunt force trauma which

would be consistent with Appellant hitting Andrews with the edge of the iron.

Id. at 124. Although the toxicology report indicated the presence of cocaine

and cocaine metabolites, the drugs Andrews ingested did not contribute to

his death. Id. at 125-26.    Dr. Osbourne testified that his conclusions and

observations were made “to a reasonable degree of scientific medical

certainty.” Id. at 129.

     A conviction for first-degree murder can be sustained based upon

circumstantial evidence where a deadly weapon was used on a vital part of

the decedent’s body. See Ramtahal, 33 A.3d at 607. The intent to kill can

be formulated in an instant. See Baez, 759 A.2d at 939. We find no relief

is due. See Ratsamy, 934 A.2d at 1235-36; Widmer, 744 A.2d at 751.

     Third, Appellant avers that he is entitled to a new trial on the charge of

murder in the first degree because the verdict was against the weight of the

evidence. As a prefatory matter, we consider whether Appellant has waived

this issue. In Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), our

Supreme Court opined:

           Regarding [the a]ppellant’s weight of the evidence claim
        we note that Appellant did not make a motion raising a
        weight of the evidence claim before the trial court as the
        Pennsylvania Rules of Criminal Procedure require. See
        Pa.R.Crim.P. 607(A).      The fact that [the a]ppellant
        included an issue challenging the verdict on weight of the


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         evidence grounds in his 1925(b) statement and the trial
         court addressed [the a]ppellant’s weight claim in its
         Pa.R.A.P 1925(a) opinion did not preserve his weight of
         the evidence claim for appellate review in the absence of
         an earlier motion.       Pa.R.Crim.P. 607(A); Steiner v.
         Markel, [ ] 968 A.2d 1253, 1257 ([Pa.] 2009) (holding
         that inclusion of an issue in a 1925(b) statement that has
         not been previously preserved does not entitle litigant to
         appellate     review     of   the     unpreserved    claim);
         [Commonwealth v.] Mack, 850 A.2d [690, 694 (Pa.
         Super. 2004)] (holding weight claim waived by
         noncompliance with Pa.R.Crim.P. 607, even if the trial
         court addresses it on the merits). [The a]ppellant’s failure
         to challenge the weight of the evidence before the trial
         court deprived that court of an opportunity to exercise
         discretion on the question of whether to grant a new trial.
         Because “appellate review of a weight claim is a review of
         the exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence,”
         Commonwealth v. Widmer, [ ] 744 A.2d 745, 753 ([Pa.]
         2000), this Court has nothing to review on appeal. We
         thus hold that [the a]ppellant waived his weight of the
         evidence claim because it was not raised before the trial
         court as required by Pa.R.Crim.P. 607.

Id. at 494 (some citations and footnotes omitted).

      In the case sub judice, Appellant did not raise the weight of the

evidence before the trial court. Therefore, we find the issue is waived. See

Pa.R.Crim.P. 607(A); Sherwood, 982 A.2d at 494.

      Lastly, Appellant contends he is entitled to a new trial as the result of

the ineffective assistance of counsel during closing argument.            It is well-

established that “as a general rule, a petitioner should wait to raise claims of

ineffective   assistance   of   trial      counsel   until   collateral     review.”

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).               There are two

exceptions:


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           First, we appreciate that there may be extraordinary
           circumstances where a discrete claim (or claims) of trial
           counsel ineffectiveness is apparent from the record and
           meritorious to the extent that immediate consideration
           best serves the interests of justice; and we hold that trial
           courts retain their discretion to entertain such claims.

              Second, with respect to other cases and claims,
           including cases such as [Commonwealth v. Bomar, 826
           A.2d 831 (Pa. 2003)] and the matter sub judice, where the
           defendant seeks to litigate multiple or prolix claims of
           counsel ineffectiveness, including non-record-based claims,
           on post-verdict motions and direct appeal, we repose
           discretion in the trial courts to entertain such claims, but
           only if (1) there is good cause shown, and (2) the unitary
           review so indulged is preceded by the defendant’s knowing
           and express waiver of his entitlement to seek PCRA[6]
           review from his conviction and sentence, including an
           express recognition that the waiver subjects further
           collateral review to the time and serial petition restrictions
           of the PCRA.

Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (citation and

footnotes omitted).

        Instantly, Appellant failed to raise his ineffectiveness claims for

consideration by the trial court and, moreover, did not knowingly waive his

right to seek PCRA review. See id. We agree with the trial court that this

issue should be dismissed without prejudice for Appellant to raise any

ineffective assistance of counsel claim in a first PCRA petition. See Trial Ct.

Op. at 11.




6
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.



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     Absent      consideration,   “the   claims   regarding   trial   counsel’s

ineffectiveness will be dismissed without prejudice.” See Grant, 813 A.2d

at 739. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/7/2015




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