J-A16009-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DIONIA L. JAMES,

                         Appellant                   No. 350 EDA 2017


     Appeal from the Judgment of Sentence Entered November 9, 2016
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0008878-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 16, 2018

      Appellant, Dionia L. James, appeals from the judgment of sentence of

an aggregate term of 16-32 years’ incarceration and a consecutive term of

five years’ probation, imposed following her conviction for third-degree

murder and possessing instruments of crime (PIC). Appellant challenges the

sufficiency and weight of the evidence, and the trial court’s admission of

statements made by the decedent to his sister.       After careful review, we

affirm.

      The trial court summarized the facts adduced at trial as follows:

      On August 8, 2015, [Appellant] stabbed to death the decedent,
      Quinton Graham, at her home at 2732 Oakford Street,
      Philadelphia, PA. Chantee Johnson testified that the decedent was
      her older brother and that he started a relationship with
      [Appellant] in 2011. Ms. Johnson knew [Appellant] since 2003.
      Ms. Johnson was friends with both [Appellant] and the decedent
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     on Facebook and testified that [Appellant] and the decedent had
     an on-and-off relationship but, when it was “on,” it seemed fine.

            Ms. Johnson had remained friends with [Appellant] when
     [Appellant] and the decedent were in “off” periods of their
     relationship. In 2015, [Appellant] and the decedent continued
     their “on-and-off relationship” but [Appellant] was also engaging
     in a relationship with [Appellant]’s daughter’s father, a Mr. Jerome
     Brown. [Appellant] posted about her relationship with Mr. Brown
     on Facebook, including posts about [Appellant]’s wedding to Mr.
     Brown in 2015, which the decedent knew of and even “liked”1
     related photos on Facebook. However, [Appellant] continued to
     see the decedent after she had been married. N.T.[,] 08/22/16[,]
     at … 156-[]61.
        1 The Facebook “Like” button is a feature that allows users
        to show their support for specific comments, pictures, wall
        posts, statuses, or fan pages. It allows users to show their
        appreciation for content without having to make a written
        comment.

           Ms. Johnson testified further that [Appellant] told her
     brother “that she only got married because of the money; that her
     daughter’s dad was dying in the hospital and she was marrying
     him so she could collect money after he dies.” [Appellant] married
     Jerome Brown while he was hospitalized on August 2, 2015. Ms.
     Johnson last saw her brother around 9 p.m. on August 7, 2015.
     On that day, upon bringing [Appellant] home from helping her run
     errands, Ms. Johnson and her son went into [Appellant]’s house.
     The decedent was there at the time and had just finished doing
     laundry and hanging pictures for [Appellant]. The decedent was
     wearing a white shirt, black pants, and red and black sneakers.
     Ms. Johnson testified that [Appellant] and the decedent appeared
     happy together and in good spirits. Ms. Johnson neither saw, nor
     was she aware of, the decedent ever being violent towards
     [Appellant]. Id. at … 167-[]73.

           At around 2:40 a.m. on August, 8, 2015, Ms. Johnson
     received a phone call at home from [Appellant] through Facebook
     Messenger.2 [Appellant] told her that the decedent had been
     knocking on [Appellant]’s door and that, when she didn’t answer,
     she heard scuffling in her back yard. [Appellant] told Ms. Johnson
     that she didn’t get up to check because she didn’t know what was
     going on and that she eventually heard a “boom” and somebody
     say “I got you, motherfu**er!” [Appellant] told Ms. Johnson that


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     she didn’t do anything because she was scared and that when she
     looked out of the window and into the back yard she saw a body
     there in blue underwear and a “wife beater.”3 [Appellant] told Ms.
     Johnson that she could not tell if it was Ms. Johnson’s brother or
     not and that she had called the police. After hearing this, Ms.
     Johnson and her sister, Angel Johnson, went over to [Appellant]’s
     house. Id. at … 176-[]77.
        2 Facebook Messenger is a software application (otherwise
        known as an “app”) that Facebook users can use to send
        messages to other Facebook users. Using Facebook
        Messenger is very similar to “texting” (i.e., sending a “text
        message” to) someone. Phone calls may also be made
        through the Facebook Messenger application.
        3   Slang for a sleeveless undershirt most often worn by men.

            When Ms. Johnson and her sister arrived at [Appellant]’s
     house, [Appellant] met them outside at their car as they were
     parking and repeated the same story she had told Ms. Johnson on
     the phone. [Appellant] showed Ms. Johnson her phone to prove
     that she had already called the police. The police arrived three
     minutes later and [Appellant] told them the same story.
     [Appellant] did not seem under the influence of drugs or alcohol
     to Ms. Johnson. A police officer asked [Appellant] if the decedent
     in the back yard was the boyfriend she had been talking about and
     [Appellant] said “Oh my God! That’s him!” After this [Appellant]
     went and sat on the stoop in front of her house and smoked a
     cigarette. Ms. Johnson identified a Facebook post made by
     [Appellant] of a photo with the caption: “Tomorrow is my wedding
     day. Sorry if you are just finding out. Not posting my life story,”
     underneath which the decedent commented: “You look beautiful,
     baby girl.” Ms. Johnson also identified another Facebook post by
     [Appellant], which showed the latter at a bar at 11:30 p.m. on
     August 7, 2015, hours before the decedent’s murder. Id. at …
     179-201.

            Angel Johnson, sister to the decedent and Chantee Johnson,
     testified that she has known [Appellant] for more than a decade.
     According to Angel Johnson, the decedent and [Appellant] were
     dating, on-and-off, for about six or seven years. Angel Johnson
     knew that [Appellant] and the decedent were still seeing each
     other when [Appellant] married Jerome Brown. The decedent was
     not upset about [Appellant]’s marriage to Mr. Brown.
     N.T.[,]08/23/16[,] at … 24-28.


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           Dorothea Graham, who goes by Renee, testified that she is
     also a sister of the decedent and she has known [Appellant] for
     about twelve (12) years. Graham lived down the street from
     [Appellant]. [Appellant]’s daughter [is] the cousin of Graham’s
     children, so when Graham would take her kids to the pool, she
     would stop by [Appellant]’s house to pick up [Appellant]’s
     daughter as well.      Graham testified that [Appellant] never
     mentioned or complained of being abused by the decedent and
     [Appellant] never had any related injuries that Graham noticed.
     Graham talked to her brother almost every day and testified that
     he was not upset by [Appellant]’s marriage to Jerome Brown,
     whom Graham knew to be hospitalized at the time of the nuptials.
     Id. at … 62-71.

            Jerome Brown, the husband of [Appellant], testified that he
     married [Appellant] on August 2, 2015 and that he is the father
     of their eight-year-old daughter. Their relationship was off-and-
     on for about eight years. While he was hospitalized in July of
     2015, Mr. Brown and [Appellant] decided to get married. 2732
     Oakford Street was rented in Mr. Brown’s name. [Appellant]
     moved into the house as soon as Mr. Brown was admitted into the
     hospital in April of 2015 with complications of Crohn’s disease. He
     remained hospitalized for about seven (7) months. Mr. Brown
     testified that no one else was supposed to be living at the house
     besides [Appellant] and their daughter. Both Mr. Brown and his
     daughter receive their own Social Security checks. Mr. Brown was
     not aware that [Appellant] had any type of relationship with the
     decedent, had never met the decedent, and assumed [Appellant]
     was faithful to him while he was hospitalized. N.T.[,] 08/24/16[,]
     at … 115-[]31.

           Kevin Brown, brother-in-law to [Appellant] and brother to
     Jerome Brown, testified that, while his brother was in the hospital,
     he regularly drove [Appellant] to and from the hospital to visit
     Jerome Brown and drove [Appellant]’s daughter to and from
     school. Kevin Brown testified that he would be upset if he knew
     that [Appellant] was seeing someone other than Jerome Brown,
     her husband. Id. at … 135-[]44.

            [Appellant] … testified that she met the decedent, Quinton
     Graham, in 2010 and that they had an on-and-off relationship that
     carried into 2015. [Appellant] moved into 2732 Oakford Street in
     April of 2015 and married Jerome Brown on August 2, 2015. Id.
     at … 151-[]62. [Appellant] heard a loud banging on her front door
     in the early morning hours of August 8, 2015. When she answered

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     the door, the decedent, who was drunk, pushed himself inside of
     the house. She ran upstairs to the bathroom and when she came
     back downstairs to the kitchen, the decedent was standing there
     with a nosebleed, which she attempted to help him with by telling
     him to put his head back. The decedent tried to clean up the blood
     on the floor from his nosebleed with the mop. When [Appellant]
     told the decedent to leave, he started physically fighting with her
     and pulled a knife, which [Appellant] grabbed from him then
     “poked him” with it. The knife remained in the decedent’s chest
     after the “poke” and he grasped it, walked out of the back door,
     and into the rear yard. [Appellant] waited “a while” before going
     outside to check on the decedent, where she found him rolling
     around on the ground “like a fish.” [Appellant] saw blood on the
     decedent’s face, which caused her to call the police at 2:36 a.m.
     [Appellant] also called the decedent’s sister, Chantee Johnson.
     When Chantee and Angel Johnson arrived, before the police,
     [Appellant] told them “your brother is out there!” and pointed to
     the back yard. Id. at … 177-[]80.

           Philadelphia Police Officer David Harrison testified that, on
     August 8, 2015, he received a radio call from a police dispatcher
     assigning him to investigate a report of a person laying in the rear
     yard of 2732 Oakford Street. Upon arrival around 3 a.m., Officer
     Harrison was led by a young woman into the house and through
     to the kitchen, where, in front of the back door, there were trash
     cans and a barricade (a 2”x5” piece of wood resting on hooks on
     either side of the door). The woman moved the items out of the
     way and opened the back door, which is when Officer Harrison
     saw a male, the decedent, lying face down towards the rear of the
     yard. At trial, Officer Harrison identified [Appellant] as the woman
     who had led him into the house. N.T.[,] 08/22/16[,] at … 70-72,
     81, 83.

           Officer Harrison further testified that [Appellant] told him
     that the decedent was her boyfriend. There were two other
     females in the house who identified themselves as sisters of the
     decedent. When Officer Harrison shined his flashlight into the
     back yard and onto the decedent, the two women said “that’s my
     brother.”   Philadelphia Police Officer Ellis went through the
     neighbor’s back yard to gain entry to the back yard of 2732
     Oakford Street and approach[ed] the decedent. Officer Ellis
     confirmed that the male appeared to be deceased. The decedent
     was in his underwear, wearing a black tank top, had leaves
     scattered across his body, and a child’s basketball net/pole was
     laying across his legs. [Appellant] told Officer Harrison that she

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     had last seen the decedent around midnight. About an hour after
     that, she heard a knock at the door which she didn’t respond to
     because she was laying down. After some time went by, she
     heard a loud banging outside and looked out to see a male in her
     back yard. At that point she called her boyfriend’s sisters to the
     house and told them there was a male in her back yard. Officer
     Harrison noted that there was an odor of cleaning product about
     the house. He also noticed blood on a mop handle, sponge, and
     a bloodstain on a carpet, which he recorded in the crime-scene
     log. While he was there, [Appellant] and the decedent’s two
     sisters were transported to the homicide unit. [Appellant] did not
     appear to have any injuries. Id. at … 73-77, 83-88.

           Philadelphia Police Sergeant James Ross of the Narcotics
     Enforcement Team testified that on August 8, 2015[,] he received
     a vague radio call about someone being in the backyard of 2732
     Oakford Street. Officer Harrison and Officer Ellis were present
     when he arrived. Sergeant Ross and Officer Ellis went around to
     the back of the property where Officer Ellis shined his flashlight
     over the fence, revealing a body laying at the end of the yard.
     Officer Ellis climbed over the fence. [Appellant] told Sergeant
     Ross that she believed the body in the back yard was that of her
     boyfriend, the decedent. Officer Ellis checked the body for a pulse
     to no avail and when the medics arrived they pronounced the
     decedent at 3:25 a.m. The decedent was laying face down on his
     stomach with his arms outstretched above his head. He was
     wearing socks, underwear, and a t-shirt and had leaves covering
     his body. No shoes or pants were found in the back yard. Id. at
     … 103-[]12.

            [Appellant] told Sergeant Ross that the last time she saw
     the decedent was around midnight when he had left the house
     with his brother, Malcolm, after she gave the decedent $20 to go
     and get some cocaine. She told Sergeant Ross that the decedent
     and his brother had been in the house all day. [Appellant] further
     stated that sometime after the decedent left, she heard a knock
     on the front door, then she heard a loud bang in the rear of the
     property followed by a voice saying[,] “I got you, mother fu**er!”
     She told Sergeant Ross that she tried calling the decedent on the
     phone but noticed that, when she did, she heard his phone ringing
     in the house (she showed Sergeant Ross the decedent’s cell phone
     laying on the futon). She also told Sergeant Ross that the
     decedent was wearing torn jeans, a t-shirt, and Air Jordan
     basketball sneakers when he left the house, but no torn jeans or
     Air Jordan sneakers were found on the premises. Sergeant Ross

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     noticed a bloody fingerprint on the interior doorknob of the rear
     door to the property, as well as what appeared to be blood on the
     washing machine and on a mop. He noted that [Appellant] never
     mentioned any injuries to herself and that the house smelled as
     though it had just been cleaned. Sergeant Ross testified that his
     observations of the decedent’s arms stretched above his head and
     the shirt rolled up around his torso led him to believe that the
     decedent had been dragged to this position a[t] the rear of the
     yard. Id. at … 114-[]20, 131.

           Philadelphia Police Sergeant Peter Singer testified that he
     was one of the last officers to arrive at 2732 Oakford Street. Upon
     arrival, he noticed that the house smelled like cleaning fluid and
     that there was blood on the handle of a mop. Id. at … 140-[]41.
     When Sergeant Singer first went through the house, [Appellant]
     had a cell phone sitting next to her on a bed on the first floor.
     After Sergeant Singer had officers take [Appellant] to the
     Homicide Unit, he noticed that the phone was no longer on the
     bed, so he called for the officers to bring [Appellant] back to the
     house to return the phone, which she did. Sergeant Singer saw
     no torn jeans or knife on the scene and noted that [Appellant] did
     not appear to have any injuries, nor did she claim to. Sergeant
     Singer did notice a pair of men’s, white and red Air Jordan
     sneakers in the laundry area in the back of the house. The house
     looked freshly cleaned and organized, “like it might if you were
     planning to have company over.” Id. at … 142-[]48.

            Philadelphia Police Officer Brian Stark of the Crime Scene
     Unit testified that he arrived on the scene at 2732 Oakford Street
     at 6:50 a.m. on August 8, 2015. He described the photographs
     he took at the scene for the jury. N.T.[,] 8/23/16[,] at … 102-
     []03. Samples were collected from five (5) bloodstains: one on
     the living room carpet, two on the kitchen’s hardwood floor, one
     on a mop’s handle in the kitchen, [and] one on a washing machine
     in a laundry area next to the kitchen. Officer Stark testified that
     there were smears and droplets of blood throughout the kitchen
     floor. Id. at … 108-[]22. Officer Stark testified that the distance
     from the back door to where the decedent was found was twelve
     (12) to thirteen (13) feet. The distance from the blood stain on
     the carpet in the living room to the backdoor area was about
     eighteen (18) feet. On the right foot of the decedent there were
     bloodstains on his sock that were indicative of droplets (i.e.[,] it
     appeared that they were formed from blood that dropped from
     above onto the sock and did not form from the skin beneath the
     sock). When the decedent was turned over from his stomach onto

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     his back, an accumulation of dirt was noticeable on the tips of the
     fingers and wrist of his left hand. His left hand also had cuts on
     the middle finger. Id. at … 134-[]41.

           Homicide Detective Howard Peterman testified that, on
     August 8, 2015, he was assigned to investigate the homicide of
     the decedent.      Detective Peterman interviewed and took
     statements from Angel Johnson and [Appellant] the same day.
     Detective Peterman first spoke with [Appellant] around 5:15 a.m.
     at the Homicide Division. [Appellant] was not emotional but
     appeared eager to tell him what happened. Initially, [Appellant]
     told Detective Peterman that someone knocked on her door that
     she believed was the decedent but she didn’t answer the door.
     She told Detective Peterman that she then heard noises in her
     back yard, then a loud boom, followed by someone yelling[,] “I
     got you!” She told Detective Peterman that she could not see
     anything in the yard and that she then called both the police and
     two of the decedent’s sisters. Id. at … 180-[]92.

            After this initial, informal conversation, Detective Peterman
     told [Appellant] that he was going to take a formal, typed
     statement from her and informed her that he had talked to Angel
     and Chantee Johnson. At this point, [Appellant]’s story changed.
     [Appellant] told Detective Peterman that she and the decedent
     were having an argument, that the decedent had a knife, tripped
     on a rug, fell on the knife, and then jumped up, ran out the back
     door, and collapsed in the back yard. Detective Peterman then
     moved [Appellant] into an interview room equipped with audio
     and video recording and came back with Detective Morton to
     continue the interview. [Appellant] told Detectives Peterman and
     Morton that the decedent stabbed himself in the chest after stating
     that he and [Appellant] were both going to die that night.
     [Appellant] continued that the decedent ran outside with the knife
     in his chest and collapsed where he was found. [Appellant]
     offered up that she did not drag the decedent into the back yard
     after he stabbed himself. [Appellant] also told the Detectives that
     she had lied previously when she said that the decedent had fallen
     on his knife and when she said that there was a male in her back
     yard yelling[,] “I got you, motherfu**er!” [Appellant] reviewed,
     signed, and dated this statement she gave to Detectives Peterman
     and Morton. Id. at … 192-202.

           Detective Peterman testified that, at the time of her formal
     interview, [Appellant] told him that she had injuries and pointed
     to marks that did not look recent or serious. Photographs were

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     then taken with [Appellant] pointing to where she had been
     injured: the inside of her elbow, the back of her foot (where she
     stated that she had been kicked), and her left breast. Id. at …
     202-[]06. [Appellant] had an HTC cell phone on her which she
     turned over to Detective Peterman, who had to submit the phone
     to experts for unlocking when the pass-code provided by
     [Appellant] did not work. N.T.[,] 08/24/16[,] at … 5-7.

           Detective James Burns of the Philadelphia Police
     Department’s Homicide Unit testified that he was called to
     investigate the crime scene at 2732 Oakford Street on August 8,
     2015. Detective Burns searched every room in [Appellant]’s
     house (including the basement) looking for a knife and a pair of
     dark pants [as well as in] the trash can outside, the empty lot and
     alleyway adjacent to [Appellant]’s house, and [Appellant]’s back
     yard and did not find either item. He searched under the
     mattresses, in drawers, and in the toilet tank as well. Id. at …
     84-88.

            Dr. Daniel Brown, Associate Medical Examiner of the City of
     Philadelphia, testified as an expert in the field of forensic
     pathology. Id. at … 30. Dr. Brown testified, to a reasonable
     degree of medical certainty, that the decedent’s cause of death
     was a single stab wound to the chest and the manner of death
     was homicide. The stab wound penetrated the decedent on the
     left side of his chest and went through his pectoral muscle,
     sternum, the pericardial sac that surrounds the heart, into the
     front side of his heart, out of the backside of his heart, and was
     stopped when the tip of the instrument used hit his spine. The
     injury was not immediately fatal and over two (2) liters of blood,
     which had been pumped out of the wound in the decedent’s heart,
     was recovered from his chest cavity. Dr. Brown testified that this
     amount of blood was about half the amount contained in an
     average human body. Id. at … 39-47. The entrance wound on
     the decedent’s chest was consistent with the type of wound a
     single-edged knife would make. If the knife had been pulled out
     while the decedent was still standing, it is possible that blood
     would have dripped down from the wound. The pool of blood that
     was found under the decedent was also consistent with the type
     of wound he had on his chest. Abrasions on the decedent’s side
     and inside of his elbow were consistent with abrasions that would
     occur if the decedent had been dragged through debris face down
     with his arms above his head. The cut on the decedent’s hand
     was also consistent with a defensive wound. Id. at … 71-78.


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             [Appellant’s] [t]rial counsel stipulated to the fact that, to a
       reasonable degree of scientific certainty, the DNA in the blood
       found on the living room carpet, the mop’s handle, and the front
       of the washing machine at 2732 Oakford Street belonged to the
       decedent, Quinton Graham.              [Appellant’s] [t]rial counsel
       additionally stipulated to the fact that the DNA found in a stain on
       the mop’s sponge was, to a reasonable degree of scientific
       certainty, a mixture of DNA from [Appellant] and the decedent. It
       was indeterminable whether this DNA came from blood, spit,
       epithelial cells,4 or any other biological material that contains DNA.
       Id. at … 98-108.
          4 Epithelial cells are “any of the cell forming the cellular
          sheets that cover surfaces, both inside and outside the
          body.”

Trial Court Opinion (TCO), 8/18/17, at 4-14 (some citations omitted).

       Following an investigation, the Commonwealth charged Appellant

generally with murder, 18 Pa.C.S. § 2502, and PIC, 18 Pa.C.S. § 907(a). A

jury trial occurred on August 22-26, 2016, at the conclusion of which the jury

found Appellant guilty of third-degree murder and PIC. On November 9, 2016,

the trial court sentenced Appellant to an aggregate term of 16-32 years’

incarceration, followed by 5 years’ probation.1 Appellant filed a timely post-

sentence motion challenging the weight of the evidence on November 16,

2016, which the court denied on January 18, 2017. Appellant then filed a

timely notice of appeal on January 24, 2017.           She also filed a Pa.R.A.P.

1925(b) statement on February 8, 2017.             The trial court issued its Rule

1925(a) opinion on August 18, 2017.

       Appellant now presents the following questions for our review:

____________________________________________


1The trial court sentenced Appellant to 16-32 years’ incarceration for third-
degree murder, and to a consecutive term of 5 years’ probation for PIC.

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      1. Were the verdicts of murder of the third degree and possession
      of an instrument of crime not supported by sufficient evidence and
      was the evidence inconsistent and speculative, and as a result,
      also violated fundamental due process? …

      2. Were the verdicts of murder of the third degree and possession
      of an instrument of crime against the weight of the evidence based
      on inconsistent and speculative evidence and violated
      fundamental due process? …

      3. Did [the trial court] err in allowing hearsay statements made
      by the decedent about the reason [Appellant] married Mr. Brown?
      Was the hearsay statement of the decedent highly prejudicial
      since it suggested [Appellant] only married her husband for his
      money and since he was gravely ill, she would then collect her
      husband’s monies? Did this inadmissible hearsay taint the jury
      against [Appellant]? Further, did this hearsay statement deny
      [Appellant’s] right to confront the witnesses under the Sixth
      Amendment of the United States Constitution through the
      Fourteenth Amendment, and pursuant to Article I, Section 9 of the
      Pennsylvania Constitution?

Appellant’s Brief at 5-6.

      Appellant’s first claim concerns the sufficiency of the evidence.        Our

standard of review of sufficiency claims is well settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention to
      human experience and the laws of nature, then the evidence is
      insufficient as a matter of law. When reviewing a sufficiency claim
      the court is required to view the evidence in the light most
      favorable to the verdict winner[,] giving the prosecution the
      benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).




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      Third-degree murder is a killing done with legal malice but without
      the specific intent to kill required in first-degree murder. Malice
      consists of a wickedness of disposition, hardness of heart, cruelty,
      recklessness of consequences, and a mind regardless of social
      duty. Malice exists 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. Malice may also exist where the omission
      or failure to perform a legal duty was willful and will probably
      result in the death of the victim.

Commonwealth v. Kellam, 719 A.2d 792, 797 (Pa. Super. 1998) (citations,

quotation marks, and brackets omitted).

      Appellant asserts that it

      is pure and naked speculation and conjecture that [Appellant] did
      not act in self-defense since it was in her household, [the
      decedent] was not supposed to be there, [decedent] was highly
      intoxicated and [decedent] had the motive for assaulting
      [Appellant] since she had married someone else the week before.

Appellant’s Brief at 55.

      Thus, by alleging that she acted in self-defense, Appellant concedes her

identity as the person who stabbed the decedent, causing his death. However,

Appellant asserts that the Commonwealth failed to meet its burden to disprove

that she acted in self-defense.

      [A] claim of self-defense (or justification, to use the term
      employed in the Crimes Code) requires evidence establishing
      three elements: (a) [that the defendant] reasonably believed that
      he was in imminent danger of death or serious bodily injury and
      that it was necessary to use deadly force against the victim to
      prevent such harm; (b) that the defendant was free from fault in
      provoking the difficulty which culminated in the slaying; and (c)
      that the [defendant] did not violate any duty to retreat. Although
      the defendant has no burden to prove self-defense, … before the
      defense is properly in issue, there must be some evidence, from
      whatever source, to justify such a finding. Once the question is
      properly raised, the burden is upon the Commonwealth to prove

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     beyond a reasonable doubt that the defendant was not acting in
     self-defense.     The Commonwealth sustains that burden of
     negation if it proves any of the following: that the slayer was not
     free from fault in provoking or continuing the difficulty which
     resulted in the slaying; that the slayer did not reasonably believe
     that he was in imminent danger of death or great bodily harm,
     and that it was necessary to kill in order to save himself
     therefrom; or that the slayer violated a duty to retreat or avoid
     the danger.

Commonwealth v. Mouzon, 53 A.3d 738, 740–41 (Pa. 2012) (citations,

quotation marks, brackets, and footnote omitted).

     Here, the trial court found that the Commonwealth presented the jury

with ample evidence demonstrating that Appellant’s claim of self-defense was

not credible. The decedent was killed by a single stab wound that penetrated

all the way through his pectoral muscle, sternum, and heart, until the blade

finally stopped when it collided with his spine. This was despite Appellant’s

contention (among numerous versions of events that she conveyed to police)

that she had merely poked the decedent with the knife. The decedent also

had a cut on his hand that appeared to be a defensive wound. By contrast,

Appellant had no significant wounds that would corroborate her claim that she

had been defending herself prior to her stabbing the decedent.

     Appellant also claimed that the decedent “went into the yard after being

stabbed and fell down.” TCO at 24. However, the evidence at the crime scene

contradicted this account, and instead demonstrated that he was dragged

from inside of the house to the backyard. Wounds on the decedent’s body

were consistent with his being dragged in that fashion, and blood was found

“on the living-room carpet, the sponge and handle of the mop, and smeared


                                   - 13 -
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across the front of the washing machine.” Id. “If the blood was just from a

nosebleed, as [Appellant] testified, it seems improbable it would be so much

and spread so far.”   Id.

      Moreover, “[d]isposing of the knife and the decedent’s pants and

sneakers, cleaning blood from the floor and washing machine, dragging the

decedent’s body to the end of the back yard, and partially covering it with

debris are all strong indications of a guilty state of mind, [which] the jury was

free to find (or not).” Id., see also Commonwealth v. Robson, 337 A.2d

573, 579 (Pa. 1975) (recognizing that “actions subsequent to the killing in

attempting to destroy or dispose of evidence [can be] interpreted by the jury

as evidencing consciousness of guilt”).

      Appellant also asserts that it was mere speculation for the jury to

conclude that the decedent was not the aggressor and, thus, that she had no

duty to retreat under the castle doctrine. Appellant’s Brief at 58-59. The

castle doctrine is codified in Section 505(b)(2):

      (2) The use of deadly force is not justifiable under this section
      unless the actor believes that such force is necessary to protect
      himself against death, serious bodily injury, kidnapping or sexual
      intercourse compelled by force or threat; nor is it justifiable if:

         (i) the actor, with the intent of causing death or serious
         bodily injury, provoked the use of force against himself in
         the same encounter; or

         (ii) the actor knows that he can avoid the necessity of using
         such force with complete safety by retreating, except the
         actor is not obliged to retreat from his dwelling or place of
         work, unless he was the initial aggressor or is assailed in his
         place of work by another person whose place of work the
         actor knows it to be.

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18 Pa.C.S. § 505(b)(2) (emphasis added).

      Appellant’s castle doctrine argument hinges on the credibility of her

testimony that she was not the initial aggressor. However, Appellant’s version

of events continued to evolve with each telling, and it was only the last two

accounts which supported a claim of self-defense at all, much less one based

on the castle doctrine. Appellant also told police on the night of the incident

that the decedent had fallen on the knife, stabbing himself, and, alternatively,

that some unknown assailant had attacked him in the backyard.          It is not

surprising, therefore, much less mere speculation, that the jury did not find

Appellant’s account of events leading to the death of the decedent to be

credible.

      In sum, we concur with the trial court that this combination of

circumstances and evidence was sufficient for the jury to find, beyond a

reasonable doubt, that Appellant acted with malice when she killed the

decedent, and that she did not act in self-defense. There was no evidence

demonstrating that Appellant reasonably believed that she “was in imminent

danger of death or serious bodily injury and that it was necessary to use

deadly force against the victim,” beyond her own testimony, which the jury

was free to disbelieve.   Mouzon, supra.      Moreover, Appellant’s repeated

attempts to cover up her actions by staging the scene of the crime and

repeatedly lying to police, coupled with her use of a deadly weapon on a vital




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part of the decedent’s body,2 provided more than sufficient evidence to

establish that she acted with malice.              Consequently, the evidence was

sufficient to support a guilty verdict for third-degree murder in this case. For

the same reasons, we also conclude that the evidence was sufficient to support

Appellant’s PIC conviction, as Appellant used the knife with the “intent to

employ it criminally.” 18 Pa.C.S. § 907(a).

       Appellant next challenges the weight of the evidence supporting her

conviction. We apply the following standard of review to a challenge that a

verdict is against the weight of the evidence:

         An appellate court’s standard of review when presented with a
       weight of the evidence claim is distinct from the standard of review
       applied by the trial court:

          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. Because the
          trial judge has had the opportunity to hear and see the
          evidence presented, an appellate court will give the gravest
          consideration to the findings and reasons advanced by the
          trial judge when reviewing a trial court's determination that
          the verdict is against the weight of the evidence. One of the
          least assailable reasons for granting or denying a new trial
          is the lower court’s conviction that the verdict was or was
          not against the weight of the evidence and that a new trial
          should be granted in the interest of justice.

          This does not mean that the exercise of discretion by the trial
       court in granting or denying a motion for a new trial based on a
       challenge to the weight of the evidence is unfettered.         In


____________________________________________


2 “[T]he use of a deadly weapon upon a vital part of the body alone is sufficient
to establish malice.” Commonwealth v. Torres, 578 A.2d 1323, 1325 (Pa.
Super. 1990).

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      describing the limits of a trial court’s discretion, we have
      explained:

         The term “discretion” imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion
         within the framework of the law, and is not exercised for the
         purpose of giving effect to the will of the judge. Discretion
         must be exercised on the foundation of reason, as opposed
         to prejudice, personal motivations, caprice or arbitrary
         actions. Discretion is abused where the course pursued
         represents not merely an error of judgment, but where the
         judgment is manifestly unreasonable or where the law is not
         applied or where the record shows that the action is a result
         of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

      We incorporate our analysis of Appellant’s sufficiency claim herein. The

crux of this case was whether Appellant’s self-defense claim was credible.

Clearly, the jury decided that it was not, and ample evidence supported the

rejection of that claim. Thus, we ascertain no abuse of discretion in the trial

court’s determination that the jury’s verdict was not against the weight of the

evidence.

      Finally, Appellant challenges the admission of a statement made by the

decedent, offered through the testimony of his sister, that Appellant only

married her husband, Mr. Brown, for his money. We review a challenge to

the admission of evidence under the following standard:

      The admission of evidence is solely within the province of the trial
      court, and a decision thereto will not be disturbed absent a
      showing of an abuse of discretion. “An abuse of discretion is not
      merely an error of judgment, but if in reaching a conclusion the
      law is overridden or misapplied, or the judgment exercised is



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      manifestly unreasonable, or the result of partiality, prejudice,
      bias[,] or ill-will discretion ... is abused.”

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal

citations omitted).

      This issue arose on multiple occasions, as Appellant describes in her

argument as follows:

      The District Attorney [(hereinafter “DA”)], in her opening
      statement, made the following improper hearsay comments:

         [DA]: Again, Quentin’s sisters, why would you stay with her?
         Why would you stay with her? She married him. What are
         you doing? You will hear testimony from the sisters that he
         stayed because she convinced him that it was only for the
         money. It was only for the money. He was going to die and
         she was going to get the money.

         [Defense Counsel, hereinafter “DC”]: Objection. Move for a
         mistrial.

         The [c]ourt: Are you going to present evidence of that?

         [DA]: Yes, Your Honor.

         The [c]ourt: If she does, then it is in. If she doesn’t, ignore
         it.

      [N.T., 8/22/16, at 36-37.]

            During the testimony of the sister of the decedent, Chantee
      Johnson, the [DA], following up on her opening statement, asked
      the following question:

         Question: At the time, did you question your brother about
         being with her?

         Answer: I did.

         Question: What did you say to your brother?

         Answer: I asked him like, you are still dealing with her. She
         just got married. Why are you still dealing with her? She
         just got married. And then he said...


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J-A16009-18


        [DC]: Objection.

        The [c]ourt: Sustain to that.

     [Id. at 161.]

           There was then a side bar conference where [DC] strongly
     objected. [DC] noted he objected previously in the opening
     statement [Id. at 162]. The [DA] said this statement was being
     offered for the decedent’s state of mind.

        [DA]: It is being offered for his state of mind, that that’s
        what she told him, regardless of whether or not she married
        him because she loved him because she wanted to be with
        him. That is not being offered for….

        The [c]ourt: How is his sister going to say that the victim
        was okay with it?

        [DA]: The victim told him that he was fine with it because
        the decedent said she loved him, it was just for money.

     [Id. at 163, 164].

           [DC] then stated this was rank hearsay of what the decedent
     supposedly told the sister.       [DC] noted this was totally
     inadmissible and was rank hearsay because it showed a motive
     for them to live together. [Id. at 164, 165].

           One can see how unfair this hearsay was. [Appellant] was
     contending the decedent did not live with her and came into the
     house when he should not have been in the early morning hours.
     The Commonwealth was trying to show through the sisters that
     the decedent was living with [Appellant] at the time. They were
     trying to show that by words apparently from the grave of what
     the decedent supposedly told the sisters, and that issue was hotly
     contested.

     The judge then said the following about this argument:

        The [c]ourt: Let the jury decide. You don’t want her to use
        it, but then you will use it and...

        [DC]: I am not going to use anything about she married him
        for the money. That is just false. It’s not true.

        The [c]ourt: No. You’re going to say he was jealous because
        she got married and then fair rebuttal to that is he wasn’t

                                   - 19 -
J-A16009-18


        jealous because she told him she only got married for the
        money but she still loved him.

        [DC]: Except that she already got that in without married
        for the money but four questions before, she asked what did
        your brother say? Did your brother know about the
        marriage?

     [Id. at 165-[]67].

           [The trial court] then overruled and allowed the testimony.
     The sister then, before the jury, testified as follows:

        Question: My last question concerning your brother, did you
        question him about why he stayed with her even though she
        was married?

        Answer: Yes.

        Question: What did he tell you?

        Answer: He said because she told him that she only got
        married because of the money, that her daughter’s dad was
        dying in the hospital and she was marrying him so she could
        collect money after he dies.

        [DC]: Just note my continuing objection and mistrial
        motion.

        The [c]ourt: Overruled.

     [Id. at 167].

           This was very damning and tainting evidence before a jury.
     This hearsay testimony, which could not be confronted from the
     decedent was essentially saying that [Appellant] was a horrible
     person, married a dying man for his money, and was still living
     with the decedent because she loved him.

            [Appellant] … totally denied ever making that statement. In
     fact, the evidence was unrefuted she was visiting her husband for
     hours every day in the hospital. The testimony of [Appellant] and
     the brother-in-law was that [the decedent] did not live in the
     house. There was no physical evidence that he lived there at all
     (no clothing, etc.). But the [c]ourt then allowed the sister to say
     the decedent told her he did live with her because [Appellant] said
     she only married Mr. Brown, her husband, for the money, and
     thought he was going to die.

                                   - 20 -
J-A16009-18


             This clearly would taint the jury about making [Appellant] a
     bad person, but also would give credence to the issue that [the
     decedent] lived in the house. That was a disputed issue. But
     there was no evidence of that except now this hearsay testimony
     of [the decedent] and this hearsay testimony of him that could
     not be confronted that [Appellant] had a motive for marrying Mr.
     Brown and that [the decedent] could still live there because she
     still loved him.

Appellant’s Brief at 66-70 (Appellant’s quotation marks omitted).

     The evidence at issue involves two layers of hearsay: first, Appellant’s

underlying statement to the decedent that she only married Mr. Brown for his

money and, second, the decedent’s statement to his sister conveying that

underlying statement. The underlying statement is not “excluded by the rule

against hearsay[,]” because it is an opposing party’s statement. See Pa.R.E.

803(25).

     At issue, therefore, is the decedent’s statement to his sister that

Appellant told him that she only married Mr. Brown for his money. The trial

court determined that the

     statement in question is not hearsay. This statement was not
     offered for the truth of the matter asserted-that [Appellant]
     actually married her husband because she stood to inherit money
     upon his impending death. Rather, it was to show that the
     decedent believed that [Appellant] only married for monetary gain
     and[,] therefore[,] was not experiencing jealousy such that he
     would attack [Appellant] in a fit of jealous rage. The decedent’s
     state of mind was relevant to [Appellant’s] claim that she had to
     defend herself against the decedent, who was the first aggressor
     because he was jealous and angry at [Appellant] for marrying
     Jerome Brown.

TCO at 29.




                                    - 21 -
J-A16009-18



      We agree with the conclusion of the trial court. The statement at issue

was either non-hearsay, or, alternatively, hearsay permitted under the state

of mind exception to the hearsay rule. Hearsay is “a statement that (1) the

declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the

statement.”   Pa.R.E. 801(c).   A statement not offered for its truth is not

hearsay at all and, therefore, is not excludable under the prohibition against

hearsay. Here, the trial court determined that the statement at issue was not

being offered to prove that Appellant married solely for money but, instead,

to demonstrate that the decedent believed it to be true and, therefore, that

he did not have a jealous motive to attack Appellant as she claimed. The

decedent’s motive (or lack thereof), was not dependent on the veracity of the

statement, but on his belief in its veracity. This evidence became relevant

because Appellant asserted a self-defense claim and, in so doing, claimed that

the decedent attacked her in a fit of jealous rage due to her marriage to Mr.

Brown. We ascertain no abuse of discretion in the trial court’s determination

that this was non-hearsay.

      Alternatively, this statement would be admissible under the state of

mind hearsay exception, even if admitted for the truth of the matter asserted.

Rule 303 provides an exception to the hearsay rule for:

      (3) Then-Existing Mental, Emotional, or Physical Condition.
      A statement of the declarant’s then-existing state of mind (such
      as motive, intent or plan) or emotional, sensory, or physical
      condition (such as mental feeling, pain, or bodily health), but not
      including a statement of memory or belief to prove the fact

                                    - 22 -
J-A16009-18


       remembered or believed unless it relates to the validity or terms
       of the declarant's will.

Pa.R.E. 803(3).     This is otherwise known as the “state of mind” exception to

the hearsay rule.

       Here, the relevant fact at issue concerned the decedent’s motive to

attack Appellant, which Appellant brought into contention by raising a self-

defense claim in which she alleged that the decedent attacked her out of

jealousy. The decedent’s statement to his sister conveyed that he was not

jealous, or that he was less likely to be jealous, as a result of Appellant’s

marriage to Mr. Brown. Thus, even if the at-issue statement was hearsay, it

would be admissible under the state of mind hearsay exception. Notably, the

decedent’s state of mind was only relevant because of Appellant’s self-defense

claim, whereby she asserted that the decedent had attacked her, in part,

because he was jealous that she had married Mr. Brown.3


____________________________________________


3 Appellant asserts that decedent’s motive was not yet at issue during the
Commonwealth’s case-in-chief, because Appellant had not yet testified that
he had attacked her out of jealousy. However, in statements she made to
police, she had stated both that the decedent was her boyfriend, and that they
had an argument that led to violence. Moreover, during the opening argument
for the defense, Appellant’s attorney asserted that the confrontation between
Appellant and the decedent was caused, in part, by “a relationship that he just
didn’t want to see end[.]” N.T., 8/22/16, at 66. From this evidence, including
the fact that the killing occurred in Appellant’s husband’s home, as well as due
to Appellant’s assertion of self-defense (which the Commonwealth was
required to disprove during its case-in-chief), we conclude that the decedent’s
motive to attack her (or lack thereof) was properly at-issue even before
Appellant’s specific testimony regarding the decedent’s alleged jealous
motive. Nevertheless, Appellant did, in fact, testify regarding the decedent’s
motive during her in-court testimony, indicating that he was upset that she
married someone else. N.T., 8/25/16, at 40.

                                          - 23 -
J-A16009-18



       Appellant asserts that the trial court’s reliance on Commonwealth v.

Moore, 937 A.2d 1062, 1070 (Pa. 2007), was misplaced. Appellant’s Brief at

75-76. However, our review of the trial court’s opinion reveals that the court

was not relying on Moore to make a factual comparison to the instant case,

but instead to simply quote a boilerplate legal concept.        See TCO at 29

(quoting Moore for the proposition that, “[a] victim’s state of mind evidence

is relevant where an issue of self-defense, suicide, or accidental death is raised

by the defendant”).

      Nevertheless, Appellant also asserts that Moore is instructive here, as

the Moore Court determined that evidence of the victim’s state of mind was

inadmissible (although it ultimately concluded that error was harmless).

However, Moore is clearly distinguishable, as the victim’s state of mind was

irrelevant in that case, where Moore did not assert self-defense, or that the

victim in that case died of suicide or accidental death, and the “testimony

concerning [the a]ppellant’s intimidation and bullying of the victim over the

course of a number of years was plainly relevant to his motive only to the

degree that the hearsay statements were true. Moreover, the Commonwealth

specifically and substantially relied upon their truth at trial….” Moore, 937

A.2d at 1072.     Here, the hearsay statements at issue were limited to

demonstrate the decedent’s state of mind in relation to Appellant’s self-

defense claim. Moreover, Appellant has not shown by reference to the record

any substantial reliance on the truth of those statements to establish

Appellant’s motive or mens rea. While there may have been some risk that

                                     - 24 -
J-A16009-18



the jury could have viewed Appellant’s selfish motive for marrying Mr. Brown

as evidence of her malice in killing the decedent, that risk was tenuous, and

we see no evidence in the record of the Commonwealth’s seeking to exploit

that evidence to prove Appellant’s malice directly.

      Appellant asserts that the admission of the decedent’s statements

through his sister’s testimony violated her rights under the Confrontation

Clause.   However, Appellant does not indicate where in the record she

objected to the at-issue statements on that basis.      When Appellant first

objected during the prosecutor’s opening statement, there was no mention of

the Confrontation Clause. See N.T., 8/22/16, at 36-37. During a long sidebar

discussing this matter during Chantee Johnson’s testimony, the defense made

no mention of the Confrontation Clause. See N.T., 8/22/16, at 162-[]67. The

first appearance of Appellant’s Confrontation Clause argument appears in her

Rule 1925(b) statement. See Rule 1925(b) Statement, 2/8/17, at 3. As such,

Appellant waived this issue. See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/18

                                    - 25 -
