J.S20041/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
JAVONN ERIC CLANCY,                         :
                                            :
                            Appellant       :     No. 1594 WDA 2013


              Appeal from the Judgment of Sentence May 29, 2013
                In the Court of Common Pleas of Beaver County
               Criminal Division No(s).: CP-04-CR-0001902-2012

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

MEMORANDUM BY FITZGERALD, J.:                        FILED AUGUST 29, 2014

        Appellant, Javonn Eric Clancy, appeals from the judgment of sentence

entered in the Beaver County Court of Common Pleas following his

conviction for first degree murder1 and firearms not to be carried without a

license.2 Appellant challenges the weight and sufficiency of the evidence to

sustain his convictions. We affirm.

        The trial court summarized the facts of this case as follows:

              Evidence and testimony presented during trial revealed
           that, shortly before noon on July 30, 2012, [Appellant] and

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 6106(a)(1).
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         Dyquane Norman as well as several other witnesses to this
         incident were present at the Linmar Terrace community
         center . . . .     Upon leaving the community center,
         [Appellant], Norman, and several other individuals walked
         to the 300 block of Linmar Terrace to relax. Approximately
         15 to 20 minutes later, [Marquay Lavar] Riggins

         [Decedent] approached Norman with the intention of
         discussing and settling a dispute involving an alleged



            While they were resolving their dispute, [Appellant]
         approached [Decedent] and Norman, cut between them,
         and began to insult [Decedent. Decedent] responded to
                                                      d asking him
         what the problem was. At that point, [Appellant] punched
         [Decedent], and [Decedent] knocked [Appellant] to the
         ground and began hitting him.         After grappling with
         [Appellant] on the ground for several seconds, [Decedent]
         was pulled off of [Appellant] by Norman, Devay Owens,
         and Tyquale Owens. Once [Appellant] and [Decedent]
         were separated, [Appellant] pulled a gun from his clothing
         and fired multiple shots at [Decedent.           Decedent]
         attempted to run from [Appellant] but was shot three
         times in the back. [Decedent] collapsed in the street
         nearby, and [Appellant] fled the scene.       After fleeing
         Linmar Terrace, [Appellant] was seen running into a
         nearby wooded area and in downtown Aliquippa. Once
         [Decedent] collapsed, Norman and Devay Owens called
         911, and the fire department and medic rescue arrived to
         render assistance to [Decedent]. Ultimately, however,
         [Decedent] died as a result of the gunshot wounds.

            On that same date of July 30, 2012, Detective Sergeant
         Steve Roberts of the Aliquippa Police Department issued a

         warrant for his arrest.       Despite attempts to secure

         apprehension until September 4, 2012, when [he] turned
         himself in to authorities. . . .

Trial Ct. Op., 8/28/13, at 4-5 (citations to record omitted).



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      At trial, Dr. James Smith was qualified as an expert in forensic

pathology.   N.T., 4/11/13, at 58.     He performed an autopsy on Decedent

which involved an external and internal examination.              Id. at 59.   The

external examination revealed three gunshot wounds.               Id.   Dr. Smith

testified, inter alia, as follows regarding the cause of death:

         A: In this particular case the fatal wound went into the
         back, very close to the spinal column. It passed through
         the large muscles of the back and entered the left chest
         cavity, just, just barely over to the left of the midline.

            It actually missed the left lung, but it went through the
         aorta, and the aorta is the primary vessel that, through
         which blood leaves the heart and goes to the rest of the


         standpoint.

            Then the bullet passed through the heart, primarily the
         right side of the heart, the right ventricle, and then it
         exited the, exited the body just to the left of the sternum
         or the breastbone . . . .

                                   *    *    *

         Q: And what was in your opinion the cause of death?

         A: This was blood loss primarily from the bullet going
         through the aorta.

Id. at 61-62.

      Following a jury trial, Appellant was convicted of first degree murder

and carrying a firearm without a license. He was sentenced to an aggregate




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term of life imprisonment.    Post-sentence motions were filed3 and denied.

This timely appeal followed. Appellant filed a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal contemporaneously with his notice of

appeal and the trial court filed a responsive opinion.

      Appellant raises the following issues on appeal:

            I. Whether the Commonwealth failed to present
         sufficient evidence to prove beyond a reasonable doubt
         that Appellant . . . possessed the malice required to
         support a conviction for First-Degree Murder?

            II. Was the jury verdict of guilty against the weight of
         the evidence presented at trial?



      First, Appellant argues the evidence was insufficient to convict him of



under a sudden passion brought about by [De

                                                     Id. at 15-16.   Appellant



                                    Id. at 16.    He concedes that he killed

Decedent, but avers that the Commonwealth did not establish the requisite


3

deadline to file a post-sentence motion, the tenth day thereafter, was
Saturday, June 8, 2013. See Pa.R.Crim.P. 720(A)(1). He filed his post-
sentence motion on Monday, June 10, 2013 and it was therefore timely.
See 1 Pa.C.S. § 1908 (providing that when last day of any period of time
referred to in any statute falls on Saturday, Sunday, or legal holiday, such
day shall be omitted from computation).




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such a finding, as his actions were the result of a sudden and intense

passion brought about by the provocation of [D              Id.



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

           [T]he critical inquiry on review of the sufficiency of the
        evidence to support a criminal conviction . . . does not
        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict. . . .

                                 *    *    *

            When reviewing the sufficiency of the evidence, an
        appellate court must determine whether the evidence, and
        all reasonable inferences deducible from that, viewed in
        the light most favorable to the Commonwealth as verdict
        winner, are sufficient to establish all of the elements of the
        offense beyond a reasonable doubt. . . .

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

(citations and quotation marks omitted).

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

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

18 Pa.C.S. § 2502(a).

     Our Pennsylvania Supreme Court has stated:

        To establish the offense of first-degree murder, the
        Commonwealth must prove the fact of the killing, the



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        kill on the part of the defendant. Further, specific intent to
        kill can be inferred from the use of a deadly weapon upon
                                                          sment, the
        evidence is viewed in the light most favorable to the
        Commonwealth, as the verdict winner.

Commonwealth v. Moore, 937 A.2d 1062, 1067 (Pa. 2007) (citations

omitted).   In Moore, the Supreme Court found the evidence was sufficient

to support the first degree murder conviction. Id. The Court opined:

        The manner in which the victim was killed (two
        gunshot wounds to his back, one of which
        penetrated     his    heart)    constitutes     circumstantial
        evidence of malice and specific intent to kill on [the
        defenda
        conduct on [his] part, including his flight . . . evidence his
        consciousness of guilt.

Id.

period of premeditation; indeed, the design to kill can be formulated in a

                       Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa.

2013), cert. denied, 134 S.Ct. 1275 (2014).



to enable the jury to find that all of the elements of first-degree murder,

including the specific intent to kill, were established beyond a reasonable



Commonwealth failed to prove the requisite elements of first degree murder

because he lacked the malice required for such a finding is of no merit.



back, one of which pierced his aorta; therefore, malice may be inferred.



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See Moore, 937 A.2d at 1067.

happened moments after the fight affords no relief, as an intent to kill may

                                               See Jordan, 65 A.2d at 323.

Appellant fled after the shooting, evidencing consciousness of guilt.        See

Moore, 937 A.2d at 1067.       We find no relief is due.   See Ratsamy, 934

A.2d at 1235-36; Widmer, 744 A.2d at 751.

      Next, Appellant claims that he is entitled to a new trial because the

                                                                         d by the
                                                                                4



Appellant only claims the verdict for first degree murder was against the

weight of the evidence in the argument section of his brief. See

Brief at 16-17.   He raises virtually the same argument as he does for the

sufficiency of the evidence:

            The record reflects that at the time of the killing, . . .
         Appellant    experienced     substantial  provocation     by
         [Decedent], namely being severely beaten in front of his
         peers.    Likewise, even after the fight had ultimately
         concluded, [Decedent] continued to berate . . . Appellant,
         even using a racial slur. Appellant himself admitted at trial
         that following this series of events he was overcome with
         an uncontrollable anger and ultimately lost control and
         began shooting.      The weight of the evidence as to

         by same weighs heavily against First-Degree Murder.




4
  Appellant preserved this issue in his post-sentence motion. See Mot. for
Post Sentence Relief, 6/11/13, at 2 (unpaginated).



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             Moreover, as stated at trial, it is difficult to fathom that
         . . . Appellant would have planned the killing in advance. .
         ..

Id. at 17.

      Our Supreme Court has held that

            [a] motion for a new trial alleging that the verdict was
         against the weight of the evidence is addressed to the
         discretion of the trial court. An appellate court, therefore,
         reviews the exercise of discretion, not the underlying
         question whether the verdict is against the weight of the
         evidence. The factfinder is free to believe all, part, or
         none of the evidence and to determine the credibility of
         the witnesses. The trial court will award a new trial only


         standard has been met, appellate review is limited to
         whether the trial jud
         and relief will only be granted where the facts and
         inferences of record disclose a palpable abuse of

         new trial based on a weight of the evidence claim is the
         least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations

omitted).



                                                                      Appellant],

whose account of the shooting greatly differed from the accounts of the

                                                                            The trial



weight of the evidence. Id. at 13.




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      Appellant asks this Court to reweigh the evidence and find the

evidence that inculpated him was not credible.      This we cannot do.   See

Ramtahal

contrary to the evidence as to shoc                             See id. We

discern no abuse of discretion by the trial court. See id.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2014




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