J   -S06010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                        1   IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                               Appellee

                         v.

LUIS M. SOTO

                               Appellant                     No. 61 EDA 2016


             Appeal from the Judgment of Sentence December 4, 2015
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0007170-2013
                                                CP-51-CR-0007171-2013
                                                CP-51-CR-0007172-2013
                                                CP-51-CR-0007173-2013

BEFORE:        MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                                    Filed August 1, 2017

        Luis    M.   Soto appeals from the December 4, 2015 judgment of

sentence entered         in    the Philadelphia County Court of Common Pleas

following his convictions for third-degree murder, carrying         a   firearm without

a    license, carrying   a    firearm on the streets of Philadelphia, possessing an

instrument of crime ("PIC"), and three counts of aggravated assault                     -
causing serious bodily injury.'            Soto's appellate counsel has filed    a   brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and                a   petition to



        *   Former Justice specially assigned to the Superior Court.

        1   18 Pa.C.S. §§ 2502(c),    6106(a)(1), 6108, 907(a), and 2702(a)(1),
respectively.
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withdraw from representation.         We affirm and grant counsel's petition to

withdraw. We also dismiss Soto's claims for ineffective assistance of counsel

without prejudice.
        The trial court summarized the factual         history of this matter as

follows:

              On April 9, 2013, in the late afternoon hours, a large
           crowd of people gathered at Water and Somerset Streets
           in Philadelphia. A fight subsequently broke out between
           several female members of this crowd, when three
           unknown women attacked Ashley Soberal.             Amanda
           Martinez, the decedent, was amongst the crowd, watching
           the fight. After the fight, [Soto] and an unnamed friend
           had a conversation in a nearby lot on Somerset Street with
           Madeline Soberal, the mother of the girl who had been
           attacked.2 There was a large crowd of people in the lot at
           this time. While [Soto], his friend and Madeline Soberal
           were talking, [Soto] had his hands in the area of his waist,
           as if he was in possession of a firearm. Madeline Soberal
           believed that [Soto] and his friend were responsible for the
           three women attacking her daughter. After she asked
           [Soto]'s friend multiple times whether he got the three
           women to "jump" Madeline Soberal's daughter, [Soto]'s
           friend admitted that he did so. Right after that admission,
           someone from the crowd came from behind her and
           punched [Soto]'s friend in the face. After his friend was
           punched, [Soto] drew a firearm and began shooting
           multiple times at the crowd. As [Soto] fired, the crowd
           began to flee the area.        Madeline Soberal took cover
           behind a Buick where she encountered Amanda Martinez,
           who had been struck by a bullet and who asked Soberal to
           stay with her. Soberal told Martinez that she would stay
           with her until an ambulance arrived. As [Soto] left the
           area, he was still in possession of the firearm.
                 2   [Soto] was also identified as "Bebe."
              Police responded at approximately 5:50 p.m.       Upon
           arriving at the scene, police encountered a chaotic crowd
           of over 100 people and attempted to locate any victims,

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           finding Martinez laying in a pool of blood. Martinez was
           placed into a private vehicle and rushed to Episcopal
           Hospital.    Martinez was later pronounced dead at the
           hospital, having suffered a gunshot wound which
           penetrated her chest, heart, and lungs.         Police also
           identified Jose Torres, Carl Walden and Larry Robinson as
           shooting victims. Torres had been shot twice in the groin
           area. Walden had been shot in his right leg.3 Both Torres
           and Walden were transported to Temple University
           Hospital for medical care. Robinson was transported to
           Episcopal Hospital by private vehicle, where he was treated
           for a gunshot wound to his stomach.
                    3   Walden was also identified as "Panama."
              Seven .40 caliber Smith & Wesson fired cartridge
           casings were recovered at the scene. Police also recovered
           two bullet specimens, a bullet jacket, and a bullet core.
           Subsequent analysis showed that the bullets and bullet
           jacket were all fired from the same firearm. All seven
           cartridge casings were also fired from the same weapon.
Opinion, 2/24/16, at 2-4 ("1925(a) Op.") (internal citations omitted).
        On August 31, 2015, a         jury convicted Soto of the aforementioned
charges.         On December 4, 2015, the trial court sentenced Soto to an

aggregate term of 50 to 100 years' incarceration.          On December 9, 2015,

Soto filed   a   timely notice of appeal.2




       2 On December 18, 2015, Soto filed a statement of matters
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). On May 13, 2016, Soto's counsel, who also represented
him at trial, filed a motion to withdraw. On June 6, 2016, this Court granted
the motion, and directed the trial court to determine Soto's eligibility for
court -appointed counsel within 60 days. On July 15, 2016, the trial court
appointed Gary S. Server, Esquire, as Soto's appellate counsel.



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         Because counsel has filed   a   petition to withdraw pursuant to Anders

and its Pennsylvania counterpart,        Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), we must address counsel's petition before reviewing the

merits of Soto's underlying claims. Commonwealth v. Goodwin, 928 A.2d

287, 290 (Pa.Super. 2007).         We first address whether counsel's petition to

withdraw satisfies the procedural requirements of Anders. To be permitted

to withdraw, counsel must:

           1) petition the court for leave to withdraw stating that,
           after making a conscientious examination of the record,
           counsel has determined that the appeal would be frivolous;
           2) furnish a copy of the brief to the defendant; and 3)
           advise the defendant that he or she has the right to retain
           private counsel or raise additional arguments that the
           defendant deems worthy of the court's attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc).

         Here,   appellate counsel    has stated   that after    a   "thorough and

conscientious examination of the record," he believes "that this appeal in its

present procedural posture    is   wholly frivolous and without support in the law

or the facts." Mot. to Withdraw, 11/3/16, at 1. Appellate counsel furnished

a   copy of the Anders brief to Soto, as well as     a   letter advising him that he

had "the right to personally participate in the appeal and to file a writing of

your own with the Superior Court of Pennsylvania.               You may also hire

counsel to represent you and to file whatever is deemed appropriate to

protect your interests." Ltr. to Soto, 10/31/16. We conclude that counsel's

petition to withdraw has complied with the procedural dictates of Anders.

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        We     next   address     whether       counsel's Anders             brief   meets   the

requirements established by the Pennsylvania Supreme Court in Santiago.

The brief must:

             (1) provide a summary of the procedural history and facts,
             with citations to the record; (2) refer to anything in the
             record that counsel believes arguably supports the appeal;
             (3) set forth counsel's conclusion that the appeal is
             frivolous; and (4) state counsel's reasons for concluding
             that the appeal is frivolous. Counsel should articulate the
             relevant facts of record, controlling case law, and/or
             statutes on point that have led to the conclusion that the
             appeal is frivolous.
    Santiago, 978 A.2d at 361.
         Here, appellate counsel has provided             a       summary of the procedural

history and the facts with appropriate citations to the record. Anders Br. at

8-19.     Counsel's brief states that he conducted                  a   thorough and objective

review of the record and concluded that the record does not support the

appeal and that the appeal is frivolous, while setting forth his reasons for his

conclusion.       Anders    Br.       at 22.        Accordingly, appellate counsel           has

substantially complied with the requirements of Anders and Santiago.

         Soto has not filed       a   pro se brief or         a    counseled brief with new,

privately -retained counsel.          We, therefore, review the issues raised in the

Anders brief.




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        The following issues3 were raised in the   Anders brief:
            Specific issues raised by [Soto] on direct appeal

            [1.] Whether the court erred                   mistrial
                                             by not granting    a
            when the Commonwealth's witness referenced the criminal
            history and dangerousness of [Soto].
            [2.]   Whether the Commonwealth's evidence                 and
            argument about fear and danger was inappropriate           and
            prejudicial since there was absolutely no evidence        that
            [Soto] or anyone associated to him had any contact        with
            any witness or engaged in any intimidation.
            [3.] Whether the admission of a text to a witnesses]
            daughter was error because it was not related to [Soto] or
            to anyone associated with [Soto].
            [4.]  Whether Detective [David] Schmidt's testimony
            regarding a 911 recording that said the "man responsible
            for the shooting owned the vehicle" where the vehicle in
            question was [Soto]'s vehicle should have been excluded
            as inadmissible hearsay.

            Issues that could have been raised by [Soto] on direct
            appeal but were not
            [5.]  Whether [Soto] was provided with              ineffective
            assistance of counsel where trial counsel:
                   1.   Failed  to file post sentence motions
                   challenging the weight of the evidence or the
                   discretionary aspects of sentencing;
                   2.  Conducted    cross-examinations of
                   Commonwealth witnesses that had them


        Soto also raises a "global question" that reads as follows: "Whether
        3

there is anything in the record that might arguably support the appeal that
obviates a conclusion that the appeal is frivolous." Anders Br. at 6. We will
not address Soto's "global question" as it does not raise a specific issue for
our review.



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                   repeat damaging       inculpatory evidence over
                   and over again;

                   3. Engaged in conduct   that was disrespectful
                   and disobedient to the court before the jury;

                   4. Engaged in loud, arrogant, angry             and
                   badgering examinations of witnesses.
           [6.] Whether [Soto]'s convictions for third degree murder
           and aggravated assault -causing serious bodily injury were
           against the weight and credibility of the evidence.
           [7.] Whether [Soto]'s convictions for third degree murder
           and aggravated assault -causing serious bodily injury were
           based upon insufficient evidence.

Anders     Br. at 6-7 (full capitalization and answers below omitted).

      First, Soto contends the trial court erred in denying his request for                     a


mistrial after one of the Commonwealth's witnesses referenced Soto's

criminal history and "dangerousness."

      Our standard of review of      a   trial court's refusal to grant        a   motion for   a


mistral   is   whether the trial court abused its discretion. Commonwealth v.

Savage, 602 A.2d 309, 312 (Pa. 1992). The Supreme Court has stated:

           [T]he remedy of a mistrial is an extreme one.           .It is
                                                                       .   .


           primarily within the trial court's discretion to determine
           whether Appellant was prejudiced by the event that forms
           the substance of the motion.           Finally, it must be
           remembered that a mistrial is required only when an
           incident is of such a nature that its unavoidable effect is to
           deprive the appellant of a fair and impartial trial.

Commonwealth v. Lease, 703 A.2d 506, 508 (Pa.Super. 1997) (quoting
Commonwealth v. Montgomery, 626 A.2d 109, 112-13                                   (Pa.   1993)).

Furthermore,



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              [a] trial court may remove taint caused by improper
              testimony through curative instructions.      Courts must
              consider all surrounding circumstances before finding that
              curative instructions were insufficient and the extreme
              remedy of a mistrial is required. The circumstances which
              the court must consider include whether the improper
              remark was intentionally elicited by the Commonwealth,
              whether the answer was responsive to the question posed,
              whether the Commonwealth exploited the reference, and
              whether the curative instruction was appropriate.
Commonwealth v. Manley, 985 A.2d 256, 266-67 (Pa.Super. 2009)
(quotation and internal citations omitted).

         Here, while on cross-examination, Commonwealth witness Madeline

Soberal asked Soto's counsel whether he had checked Soto's background.

1925(a) Op. at 5.          She then stated that she feared for her family and

children.       Id. Soto's counsel requested    a   mistrial at the next break, claiming

that Soberal had effectively revealed Soto's criminal background with her

statements. Id. at 6. The trial court found:

                  The record establishes that a mistrial was not required.
              Soberal's question about [Soto]'s background was not
              elicited by the Commonwealth, but by [Soto]'s attorney
              during a heated cross-examination.           Additionally, the
              Commonwealth did not exploit the challenged testimony in
              any manner. Finally, the Court immediately gave a
              curative instruction to the jury, directing them to disregard
              the statement. Under these circumstances, it is clear that
              Soberal's brief reference to [Soto]'s "background" did not
              have the unavoidable effect of denying [Soto] a fair trial.
              Accordingly, the Court correctly denied [Soto]'s motion for
              mistrial.
Id. at    6   (internal citations omitted).    We agree.       Accordingly, we conclude

that the trial court did not abuse its discretion        in   denying Soto's request for

a   mistrial.
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        Next, Soto contends that "the Commonwealth's evidence about fear

and danger was inappropriate and prejudicial since there was absolutely no

evidence that [Soto] or anyone associated to him" contacted or intimidated

witnesses.       Anders   Br. at 34.   Specifically, this claim refers to evidence

regarding    a   post to the social media website Instagram.

        The trial court described the post as follows:

               During the first day of testimony, the Commonwealth
           informed the Court that its witness Madeline Soberal had
           seen a copy of an online posting, which she believed to be
           threatening in nature. N.T. 8/26/15 at 193-194. In
           particular, Soberal's daughter forwarded to Soberal a
           posting on Instagram by [Soto]'s brother-in-law stating
           the following:
                   On   my way to support my boy, bebesky
                   [[Soto]'s nickname]!!! Its crazy how they
                   charging my boy 4suming [sic] he aint even
                   do, its cool doe [sic] cuz we about to rumble n
                   god [sic] his BACK...

           N.T.   8/26/15 at 223, Commonwealth Exhibit C-87.
                 Because of the alleged threat, the Commonwealth
           requested that the Court exclude all spectators from the
           courtroom for the duration of Soberal's testimony. The
           defendant objected to any members of the public being
           excluded. Therefore, the Court held an in camera hearing
           to determine if closure of the courtroom during Soberal's
           testimony was permissible. Following the hearing, the
           Court denied the Commonwealth's request to close the
           courtroom.
1925(a) Op. at 7-8 (internal citations omitted) (some alterations in original).

Soberal then testified, during which the Commonwealth inquired about the

post.   After some discussion between counsel and the trial court, the court

allowed the assistant district attorney ("ADA") trying the case to read the

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Instagram post into the record. N.T., 8/26/15, at 300-04. Defense counsel

requested that the entirety of the post be read aloud.            Id. at 302. After the
ADA began to read, defense counsel objected to his "mannerisms" and

requested that another party read the post; however, defense counsel made

clear that he was not objecting to the contents of the post being read.              Id.
at 304. Thereafter, the court allowed the ADA to read the remainder of the

post.

        Because defense counsel did not make             a   contemporaneous objection

to the admission of the Instagram post into evidence, this issue is waived.

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.").                  Soto's similar claim

regarding the Commonwealth's closing argument, in which "the prosecutor

referred to the Instagram posting and Soberal's fearful reaction to                 it[,]"
1925(a) Op. at 9,      is also   waived, because defense counsel did not make           a


contemporaneous objection.           Commonwealth v. Powell, 956 A.2d 406,
423 (Pa. 2008) ("The absence of             a     contemporaneous objection below

constitutes   a   waiver of appellant's current claim respecting the prosecutor's

closing argument.").

        Soto next contends that the trial court erred in admitting              a   text

message sent to Soberal's daughters.              Appellate counsel concedes in his

Anders brief that      he "has absolutely no idea what [Soto] is raising here."

Anders    Br. at 36.    It appears the "text"     in   question may be the same thing


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as the Instagram post.   In any event, because Soto did not object to the

admission of any text messages at trial, he has waived this claim.          See

Pa.R.A.P. 302(a).

     Soto next claims that the police detective's testimony regarding   a   911

call, which identified the shooter as the owner of   a   vehicle found at the

scene, should have been excluded. The trial court stated:

           To the extent that [Soto] is claimingthat the admission
        of the testimony regarding the 9-1-1 caller was error, his
        claim is frivolous. [Soto] objected to this testimony and
        the Court immediately sustained the objection, struck the
        evidence, and directed the jury to disregard it. N.T.
        8/27/15 at 161-162.    Accordingly, the challenged
        evidence was never admitted by the Court.
            Later in the trial, [Soto] moved for a mistrial based on
        the Detective's testimony regarding the 9-1-1 statement.
        N.T. 8/27/15 at 217-218. To the extent that [Soto] is
        attempting (without saying so) to challenge the Court's
        decision denying his motion for a mistrial, his claim is
        without merit. As stated above, a mistrial is only required
        "when an incident is of such a nature that its unavoidable
        effect is to deprive defendant of a fair trial." Here, the
        Detective made a momentary reference to an out -of -court
        statement on a 9-1-1 tape to explain his course of
        conduct, that is, why the police searched the vehicle at the
        scene of the shooting in which evidence was recovered
        that tended to prove that [Soto] was in the area at the
        time of the shooting. An out -of -court statement offered
        not for its truth, but rather to explain the course -of -
        conduct of police, is admissible, particularly where, as
        here, the defense had attacked the adequacy of the police
        investigation. See Commonwealth v. Chmiel, 889 A.2d
        501,    532-534 (Pa. 2005).          However,    under the
        circumstances presented, the Court deemed the potential
        for the jury to consider the statement for an improper
        purpose, that is, as proof that the shooter was seen driving
        a Buick, to outweigh its non -hearsay probative value. For
        that reason, the Court immediately not only struck the
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           evidence, but explicitly admonished the jury to disregard
           it. Under these circumstances, the jury's brief exposure to
           the arguably admissible evidence could not have deprived
           defendant of a fair trial. No relief is due. See
           [Commonwealth v. Manley, 985 A.2d 256 266-67
           (Pa.Super. 2009)]; [Commonwealth v. Freeman], 827
           A.2d 385, 409 (Pa. 2003).
1925(a). Op. at 9-10 (emphasis added).             Because the trial court, in fact,

excluded the detective's testimony, we conclude that Soto's claim lacks

merit.

         Next, Soto claims that his trial counsel was ineffective on four separate

bases. However, it is well -settled that "absent certain circumstances, 'claims

of ineffective assistance of counsel are to be deferred to [Post Conviction

Relief Act] review; trial courts should not entertain claims of ineffectiveness

upon post -verdict motions; and such claims should not be reviewed upon

direct appeal.' Commonwealth v. Harris, 114 A.3d 1,              5   (Pa.Super. 2015)

(quoting Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013)); see

also Commonwealth v. Grant, 813 A.2d 726, 738                  (Pa. 2002)    ("[A]s   a


general rule,    a   petitioner should wait to raise claims of ineffective assistance

of trial counsel until collateral review."). Accordingly, because circumstances

warranting review of Soto's ineffectiveness claims on direct appeal do not

exist, we dismiss Soto's ineffectiveness claims without prejudice.               See

Grant, 813 A.2d at 739 (dismissing appellant's claims of ineffectiveness of

counsel without prejudice).




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        Finally, we conclude that Soto has waived his weight of the evidence

and sufficiency of the evidence claims because he did not raise them in his

Rule 1925(b) statement.          Commonwealth v. Lord, 719 A.2d 306, 309                              (Pa.

1998) ("Any issues not raised in               a        1925(b) statement will be deemed

waived."). In addition, Soto did not raise his challenge to the weight of the

evidence with the trial judge. Commonwealth v. Gillard, 850 A.2d 1273,

1277 (Pa.Super. 2004) ("As noted in the comment to [Pennsylvania Rule of

Criminal   Procedure]   607       [regarding challenges to the weight of the

evidence], '[t]he purpose of this rule             is   to make it clear that   a       challenge to

the weight of the evidence must be raised with the trial judge or it will be

waived.") (some alterations        in   original)..

        Even if Soto had not waived his challenge to the weight of the

evidence supporting his convictions for third-degree murder and aggravated

assault, this challenge     is   meritless.         This Court reviews     a    weight of the

evidence claim for an abuse of discretion.                   Commonwealth v. Clay, 64
A.3d 1049, 1055 (Pa. 2013).                "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                           .    .   .   ."   Id.
(quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).

"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


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court's determination that the verdict          is   against the weight of the evidence."

Id. (quoting Widmer, 744 A.2d at 753).
        In the Anders brief, counsel offers two bases for challenging the

weight of the evidence: 1) that the "eyewitnesses were not in                    a   good

position to make an identification" or "were so overcome with fear as to be

incapable of making an accurate identification"; and 2) that the witnesses

who identified Soto made an excessive amount of inconsistent statements.

Anders    Br. at 24.   However, as the fact -finder, the jury was free to credit

the witnesses' testimony as they saw fit. See Commonwealth v. Page, 59

A.3d 1118, 1130 (Pa.Super. 2013) (quoting Commonwealth v. Price, 616

A.2d 681, 685 (Pa.Super. 1992)) ("A determination of credibility lies solely

within the province of the factfinder."); Commonwealth v. DeJesus, 860

A.2d 102, 107 (Pa.Super. 2004) ("The weight of the evidence is exclusively

for the finder of fact, which         is    free to believe all, part, or none of the

evidence, and to assess the credibility of the witnesses.").

        Further, even if Soto had not waived his challenge to the sufficiency of

the evidence supporting         his        convictions for third-degree murder and

aggravated assault, we would find it meritless.                 We apply the following

standard when reviewing     a   sufficiency of the evidence claim:

           [W]hether 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

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          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 proof or 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.
Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa.Super. 2003) (quoting
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001)).
        This Court has previously discussed the elements of third-degree

murder:

             The elements of third-degree murder, as developed by
          case law, are a killing done with legal malice but without
          the specific intent to kill required in first -degree murder.
          Malice is the essential element of third degree murder and
          is   the distinguishing factor between murder and
          manslaughter.     The Pennsylvania Supreme Court has
          defined malice in the following terms:
                 "The distinguishing criterion of murder is
                 malice aforethought. But it is not malice in its
                 ordinary understanding alone, a particular ill -
                 will, a spite or a grudge. Malice is a legal term,
                 implying much more. It comprehends not only
                 a particular ill -will, but every case where there
                 is 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. Murder, therefore, at common law
                 embraces cases where no intent to kill existed,


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                   but where the state or frame of mind termed
                   malice, in its legal sense, prevailed."
             Commonwealth v. Thomas, 527 Pa. 511, 514, 594 A.2d
             300, 301 (1991), quoting Commonwealth v. Drum, 58
             Pa. 9, 15   (1868). Accordingly, it has been observed that
             malice    may   be found where the actor consciously
             disregard[s] an unjustified and extremely high risk that his
             actions might cause death or serious bodily harm. Malice
             may be inferred from the attending circumstances of the
             act resulting in the death. Malice is properly implied when
             a deadly weapon is directed to a vital part of the [victim's]
             body. Indeed, the inference from the use of a deadly
             weapon upon a vital part of the body alone is sufficient to
             establish malice.
Commonwealth v. Cruz -Centeno, 668 A.2d 536, 539-40 (Pa.Super.
1995) (some internal quotations omitted) (alterations and emphasis in

original).

        The evidence shows that Soto intentionally drew             a   firearm and began

shooting into     a   large crowd of people, killing one person and injuring three

others.       His actions    demonstrate         a   disregard for the unjustified and

extremely high risk that those actions might cause death or serious bodily

harm, thereby satisfying the requirement of malice. Thus, the evidence was

sufficient to support his conviction for third-degree murder.

        We next turn to Soto's challenge to the sufficiency of the evidence

supporting his convictions for aggravated assault              -   causing serious bodily

injury. This Court has stated:

                Under the Crimes Code, a person may be convicted of
             aggravated assault,   .   .if he or she "attempts to cause
                                           .


             serious bodily injury to another, or causes such injury
             intentionally, knowingly, or recklessly under circumstances
             manifesting extreme indifference to the value of human

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           life." 18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is
           further defined by the Crimes Code as "bodily injury which
           creates a substantial risk of death or which causes serious,
           permanent disfigurement, or protracted loss or impairment
           of the function of any bodily member or organ." 18
           Pa.C.S.A.    §   2301.
Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.Super. 2007). Here, the
evidence shows that Soto shot Jose Torres once in the right groin and once

in   the left buttocks, Carl Walden once in the right femur, and Larry Robinson

once in the stomach.            Because these are all serious bodily injuries, we

conclude the evidence was sufficient to support Soto's aggravated assault

convictions.

        Judgment of sentence affirmed.             Ineffective assistance of counsel

claims dismissed without prejudice.            Petition for leave to withdraw as

counsel granted.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 8/1/2017




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