J-A06003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

FREDERICK D. MILLS

                           Appellant                 No. 1876 EDA 2014


               Appeal from the Judgment of Sentence May 30, 2014
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0014111-2011


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                              FILED MAY 28, 2015

      Appellant, Frederick D. Mills, appeals from the judgment of sentence

entered after a jury convicted him of murder in the third-degree and

possessing an instrument of crime. We affirm.

      The charges against Mills arose out of an argument between Mills and

the victim, Allen Jordan, in Love Park in Philadelphia.      Both men were

frequent visitors to the park, and on the night of the crime, were sitting

together on a bench drinking alcohol.      As the evening wore on, Mills and

Jordan had an argument that unfortunately escalated into a physical

altercation.

      The fight broke up with minor injuries, and Jordan left the area. While

Jordan boasted to a nearby acquaintance that he had won the fight, Mills

discovered that he had lost a ring during the fight, and searched the area.
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When Jordan and his acquaintance, Sean Blakeney, returned to the scene of

the fight, Mills confronted Jordan.        Jordan challenged Mills, and the two

engaged each other again.

      This time, however, Jordan disengaged immediately after receiving a

stab wound to his chest. Mills walked away from Jordan and exited the park.

Blakeney assisted Jordan out of the park, when Jordan collapsed and

requested to be taken to a hospital. Blakeney immediately began yelling for

assistance.

      Police arrived on the scene shortly thereafter.       After putting out a

bulletin based upon Blakeney’s description of Mills, an officer performed CPR

until an ambulance arrived to take Jordan to a nearby hospital. Jordan died

shortly after arriving at the hospital.

      Another nearby officer, after hearing the bulletin, recognized Mills and

stopped him on a corner approximately two blocks from Love Park.          Mills

admitted to having lost a fight with Jordan.       A four-inch long handle of a

folding pocket knife was found in a flower pot on that corner.

      At trial, Mills denied possessing a knife or stabbing Jordan.      A jury

convicted Mills of third degree murder and possession of an instrument of

crime.    The trial court subsequently sentenced Mills to a term of

imprisonment of 8 to 25 years. This timely appeal followed.

      On appeal, Mills raises four issues. The first two issues are challenges

to the sufficiency of the evidence supporting his murder conviction.       The


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third issue challenges the weight of the evidence, while the fourth issue

challenges the trial court’s failure to grant a mistrial after the prosecutor

repeatedly referred to Mills as a liar during closing arguments.

      Mills’s first two issues are challenges to the sufficiency of the evidence

supporting his conviction for third degree murder. We review a challenge to

the sufficiency of the evidence as follows.

      The standard we apply when reviewing the sufficiency of the
      evidence is 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. 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. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. 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. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.




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Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

       First, Mills asserts that the evidence at trial was insufficient to support

a finding that he actually stabbed Jordan. The Commonwealth presented the

testimony of Maurice Johnson, an eyewitness to the altercation between Mills

and Jordan. Johnson was an acquaintance of the two men and was walking

through the park when he noticed them fighting.                 See N.T., Trial,

2/24/2014, at 52-53.      The fight stopped when Mills claimed he lost some

jewelry and both men ceased fighting.        See id., at 56-57. Jordan walked

away, while Mills searched the area for his jewelry. See id., at 57.

       Johnson further testified that when Jordan returned to the area of the

fight, Mills pulled out a knife.   See id., at 58.    Jordan asked Mills “What

now?    Round two?”     Id.   The two proceeded to fight again, and Johnson

watched as Mills stabbed out with the knife in his right hand. See id., at 59.

He did not see the knife go into Jordan, but he did see “punches being

landed with that knife, yes, sir.” Id.

       The jury was entitled to find this testimony credible.         Thus, this

testimony was sufficient to support a finding that Mills stabbed Jordan during

the fight. Mills’s first argument on appeal merits no relief.

       Next, Mills argues that the evidence at trial was insufficient to support

a finding of malice.    Malice is an essential element of murder, including

murder of the third-degree. See Commonwealth v. Marquez, 980 A.2d


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145, 148 (Pa. Super. 2009). “The intent which is a prerequisite to a finding

of murder is … malice.” Commonwealth v. Dale, 836 A.2d 150, 153 (Pa.

Super. 2003) (citation omitted).       Malice may be found where the actor

consciously disregards an unjustified and extremely high risk that the actor’s

conduct might cause death or serious bodily injury. See Commonwealth

v. Jackson, 955 A.2d 441, 444 (Pa. Super. 2008). “[T]he law permits the

fact finder to infer that one intends the natural and probable consequences

of his acts[.]”   Id.   (citation omitted).   Therefore, “[a] jury may properly

infer malice from the use of a deadly weapon on a vital part of the victim’s

body.” Dale, at 153 (Pa. Super. 2003) (citation omitted).

      Gary Lincoln Collins, M.D. testified at trial as an expert medical

witness. Dr. Collins testified that Jordan suffered a stab wound on the left

side of his chest, to the inside and below his nipple.         See N.T., Trial,

2/27/14, at 25. This wound went between his ribs and punctured Jordan’s

heart. See id. This testimony, combined with Johnson’s earlier testimony,

was sufficient to establish that Mills used a deadly weapon on a vital part of

Jordan’s body. Thus, the jury was entitled to infer malice.

      Nonetheless, Mills argues that he was acting under a sudden intense

passion due to Jordan’s serious provocation of returning to the scene of the

fight and requesting another fight. “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


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provocation by ... the individual killed ....” 18 Pa.C.S.A. § 2503(a). “The

test for [serious] provocation is whether a reasonable person confronted by

the same series of events, would become impassioned to the extent that his

mind would be incapable of cool reflection.”        Commonwealth v. Truong,

36 A.3d 592, 600 (Pa. Super. 2012) (citation omitted), appeal denied, 618

Pa. 688, 57 A.3d 70 (2012). Once a justification defense is properly raised,

“the Commonwealth bears the burden to disprove such a defense beyond a

reasonable doubt.”       Commonwealth v. Torres, 766 A.2d 342, 345 (Pa.

2001) (citation omitted).

       While the evidence at trial was indicative of some level of provocation

on the part of Jordan, the ultimate decision on whether Mills became

incapable of cool reflection due to the provocation was for the jury to decide.

The record adequately supports the jury’s decision that Mills was acting

pursuant to malice rather than provoked passion.          We therefore conclude

that Mills’s second issue on appeal merits no relief.

       Mills next argues that the verdict was against the weight of the

evidence. In order to preserve a challenge to the weight of the evidence, an

appellant must first raise the claim before the trial court before sentencing

or in a post-sentence motion.           Pa.R.Crim.P., Rule 607(a), 42 Pa.C.S.A.1


____________________________________________


1
  Rule 607(a) states that “[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
(Footnote Continued Next Page)


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Instantly, the record reveals that Mills failed to file any post-sentence

motions, and did not raise a weight of the evidence claim prior to

sentencing. As Mills has failed to preserve his weight of the evidence claim

for appeal, we are constrained to find it waived.

      In his final issue on appeal, Mills contends that the trial court erred in

failing to grant a mistrial after the prosecutor repeatedly labeled him a liar

during closing arguments.

       It is well established that a prosecutor is permitted to vigorously
      argue his case so long as his comments are supported by the
      evidence or constitute legitimate inferences arising from that
      evidence.

          In considering a claim of prosecutorial misconduct, our
          inquiry is centered on whether the defendant was
          deprived of a fair trial, not deprived of a perfect one.
          Thus, a prosecutor’s remarks do not constitute reversible
          error unless their unavoidable effect ... [was] to prejudice
          the jury, forming in their minds fixed bias and hostility
          toward the defendant so that they could not weigh the
          evidence objectively and render a true verdict. Further,
          the allegedly improper remarks must be viewed in the
          context of the closing argument as a whole.

Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted).

      Mills supports his argument with an accurate quotation:        “It is well

settled that a prosecutor is not permitted to express a personal belief
                       _______________________
(Footnote Continued)

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.”




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regarding the defendant’s guilt or innocence or the veracity of the defendant

or the credibility of his witnesses.” Commonwealth v. Novasak, 606 A.2d

477, 481 (Pa. Super. 1992) (citation omitted).     Mills, however, leaves out

the very next sentences from Novasak:

      However, such comments do not constitute reversible error
      where the prosecutor’s statements are elicited by the nature of
      the defense mounted and where the evidence supports the
      inference that the defendant and/or a defense witness has lied.
      Further, when assessing a claim of error of this type, the
      appellate court must consider whether the prosecutor made a
      deliberate attempt to destroy the objectivity of the factfinder or
      merely summarized the evidence presented at trial with the
      oratorical flair permitted during argument.

Id.    Furthermore,    the   Novasak    court   concluded   that,   under   the

circumstances of that case, the prosecutor’s statements that characterized

the defendant as a liar and a thief did not constitute prosecutorial

misconduct. See id.

      We conclude that the circumstances of this case constitute a situation

where the prosecutor’s comments were fairly elicited by the nature of the

evidence presented.    Among many other instances, it is indisputable that

Mills’s testimony that he had never possessed a knife was clearly

contradicted by Johnson’s testimony that he saw Mills wielding a knife during

the fight. The Commonwealth’s theory of the case was that Mills was lying

when he stated that he had never owned a knife. This oratorical flair during

closing arguments was not likely to destroy the objectivity of the jury. We

therefore conclude that Mills is due no relief on his final argument on appeal.


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     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/2015




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