J-S05021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MAXWELL MARION MORTON                      :
                                               :
                       Appellant               :   No. 905 WDA 2017

              Appeal from the Judgment of Sentence May 15, 2017
             In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0001626-2015


BEFORE:      OLSON, J., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT:                                     FILED AUGUST 22, 2018

        Maxwell Marion Morton appeals from the judgment of sentence entered

in the Westmoreland County Court of Common Pleas, following his jury trial

convictions of murder in the third degree and possession of firearm by minor.1

We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Trial Court Opinion, 8/15/2017, at

1-5 (citations omitted).      Therefore, we have no reason to restate them at

length.



____________________________________________


   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. §§ 2502(c), 6110.1(a), respectively. Morton was also found not
guilty of murder of the first degree, id. § 2502(a), and involuntary
manslaughter, id. § 2504(a).
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        We briefly note that, on February 4, 2015, in a bedroom at 1018 Rankin

Avenue in Jeannette, Westmoreland County, Morton shot Ryan Mangan in the

left eye; Morton then hid the firearm in his own home under the stairs leading

to the basement. Id. at 1-3, citing N.T., 2/14/2017, at 90-92, 155 (testimony

of Detective James Williams of the Westmoreland County District Attorney’s

Office). Detective James Williams was the first to arrive at the scene, at about

6:45 p.m., where he found Mangan’s body in a green chair, slumped to the

left, with a large amount of blood on the table and floor to the left of Mangan’s

body.      Id.   at   1-2,    citing   N.T.,   2/14/2017,   at   92   (testimony   of

Detective Williams).

        During a subsequent interview, Morton told Detective Williams that he

had been holding a firearm, looked down at it, looked at Mangan, and then

pulled the trigger.    Id. at 3, citing N.T., 2/14/2017, at 158 (testimony of

Detective Williams).         After the shooting, Morton cleaned up the fired

cartridges, did not seek medical care for Mangan, stole Mangan’s shoes, took

a “selfie” photograph with Mangan as he was dying, fled the scene, and sent

the “selfie” photograph to a fourteen-year-old friend, T.P. Id. at 2-4, 7, citing

N.T., 2/14/2017, at 134-136; N.T., 2/15/2017, at 222-223 (testimony of

T.P.), 263 (testimony of forensic pathologist, Cyril H. Wecht, M.D.); N.T.,

2/16/2017, at 381-383 (testimony of Morton).            T.P. informed police that

Morton told him that he had “caught his first body.” Id. at 3.

        Morton now raises one issue for our review:




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      Did the [t]rial [c]ourt err in finding that the evidence was sufficient
      to support the jury verdict of [t]hird degree murder where the
      evidence presented was inconsistent with a finding of the element
      of malice required for [t]hird degree murder but rather the
      evidence presented was consistent with involuntary manslaughter
      where the shooting was accidental and [Morton]’s acts were
      reckless and/or grossly negligent.

Morton’s Brief at 4.

      Morton contends that “the trial court erred in allowing” the verdict of

murder of the third degree “to stand” and that the evidence presented was

“consistent” with involuntary manslaughter instead.          Id. at 16-17.      He

maintains that “it is clear from the record that the shooting of Ryan Mangan

was accidental.” Id. at 18-19. He further argues that “the jury found [his]

acts, post[-]shooting, so reprehensible that they reacted emotionally and not

in accordance with the charge given them by the trial judge.” Id. at 20.

      In reviewing the sufficiency of the evidence, our standard of
      review is as follows:

      Whether viewing all the evidence admitted at trial in the light most
      favorable to 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. . . .
      Finally, the 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.

Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. Super. 2017) (citation

and internal brackets omitted) (some formatting), appeal denied, 174 A.3d

558 (Pa. 2017).

      “Third-degree murder is defined ‘all other kinds of murder’ other than

first degree murder or second degree murder.            18 Pa.C.S. § 2502(c).


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The elements of third-degree murder, as developed by case law, are a killing

done with legal malice.” Commonwealth v. Marquez, 980 A.2d 145, 148

(Pa. Super. 2009) (en banc) (citation and some internal quotation marks

omitted).   Here, there is no doubt that the killing of Ryan Mangan has

occurred; thus, the only disputed element is whether Morton acted with

malice. See id.

     “[M]alice is an essential element of third-degree murder and is the

distinguishing factor between murder and manslaughter.” Commonwealth

v. Smouse, 594 A.2d 666, 671 (Pa. Super. 1991).

     We have stated that a person may be convicted of third-degree
     murder where the murder is neither intentional nor committed
     during the perpetration of a felony, but contains the requisite
     malice aforethought. . . . We have defined malice as 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. In
     addition, malice may be inferred from the use of a deadly
     weapon upon a vital part of the body. Malice may also exist
     where the principal acts in gross deviation from the standard of
     reasonable care, failing to perceive that such actions might create
     a substantial and unjustifiable risk of death or serious bodily
     injury.

Commonwealth v. Yanoff, 690 A.2d 260, 264 (Pa. Super. 1997) (emphasis

added; internal citations and quotation marks omitted).         The statutory

definition of a “deadly weapon” includes “any firearm.” 18 Pa.C.S. § 2301. A

person’s head has been found to be a vital part of the body.               E.g.,

Commonwealth       v.   Poplawski,    130   A.3d   697,   710   (Pa.   2015);

Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015).



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       Accordingly, even if we accept Morton’s representation that his actions

were “accidental[,]” Morton’s Brief at 16, he still could have been properly

convicted of murder of the third degree.

       “[M]alice may be inferred from the use of a deadly weapon upon a vital

part of the body.” Yanoff, 690 A.2d at 264. Here, Morton shot Mangan in

his left eye. Trial Court Opinion, 8/15/2017, at 2-3. A firearm is a “deadly

weapon.” 18 Pa.C.S. § 2301. An individual’s eye and, consequently, head

are vital parts of the body. Poplawski, 130 A.3d at 710; Hitcho, 123 A.3d

at 746. Hence, by shooting a firearm at Mangan’s eye and head, Morton used

a deadly weapon upon a vital part of Mangan’s body, and malice can thereby

be inferred. Yanoff, 690 A.2d at 264.

       Furthermore, viewing all the evidence admitted at trial in the light most

favorable to the Commonwealth as verdict winner,2 the evidence is clearly

sufficient to establish malice. Morton told police that, immediately prior to the

shooting, he looked at the firearm, looked at Mangan, and then fired the

weapon. Trial Court Opinion, 8/15/2017, at 3. After shooting Mangan, he did

not seek medical care for Mangan who was bleeding profusely, had the

presence of mind to clean up the spent shells, callously stole Mangan’s shoes,

took a commemorative photograph of himself with Mangan as he was dying,

fled the scene, bragged to a friend about the killing, and then proceeded to

hide the firearm. Id. at 1-4, 7, citing N.T., 2/14/2017, at 92, 134-136; N.T.,

____________________________________________


2   See Fortson, 165 A.3d at 14.

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2/15/2017, at 222-223, 263; N.T., 2/16/2017, at 381-383. The testimony

and evidence of these actions, namely, Morton’s shooting of Mangan was not

accidental, he was aware of what he was doing before, during, and after the

shooting, and    he was proud of his actions demonstrate “a wickedness of

disposition, hardness of heart, [and] cruelty” and are sufficient for the jury to

find that Morton acted with malice. Yanoff, 690 A.2d at 264.

      Morton argues that his actions were “consistent” with involuntary

manslaughter, in that he acted “recklessly or in a grossly negligent manner”

in causing the death of Mangan, 18 Pa C.S. § 2504(a). See Morton’s Brief at

16-19.

      The jury was charged on the elements of involuntary manslaughter but

returned a verdict of murder in the third degree. Their verdict is supported

by the evidence presented at trial that Morton’s actions were more than

grossly negligent or reckless.    See Commonwealth v. Jacoby, 170 A.3d

1065, 1078 (Pa. 2017) (“As the ultimate finder of fact, the jury was free to

believe some, all, or none of the Commonwealth’s evidence. The jury also

was free to resolve any inconsistencies or discrepancies in the testimony in

either party’s favor.”). Based on the foregoing, Morton is not entitled to relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2018




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