J-A32009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM R. ALEXANDER

                            Appellant                  No. 579 EDA 2013


            Appeal from the Judgment of Sentence January 4, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001713-2012


BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                              FILED APRIL 07, 2015

        Appellant, William R. Alexander, appeals from the judgment of

sentence entered on January 4, 2013, by the Honorable Jeffrey P. Minehart,

Court of Common Pleas of Philadelphia. We affirm.

        The trial court summarized the pertinent facts as follows.

              On the evening of August 26[], 2011[,] at approximately
        10:00 p.m., the victim approached [Alexander] on East Collum
        Street in the Germantown area of Philadelphia. The victim,
        having been waiting for [Alexander] to come down the street,
        put his arms out in front of [Alexander] so as to incite a
        confrontation. [Alexander] then struck the victim multiple times
        in the face with a closed fist, rendering the victim unconscious.
        [Alexander] then fled the scene. Reporting to a radio call, police
        arrived at the scene and found the victim lying in the road still
        unconscious. The victim was transported to Albert Einstein

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A32009-14


        Medical Center, and medical staff pronounced him dead at 10:49
        p.m.

Trial Court Opinion, 1/21/14 at 2 (unnumbered).

        Alexander was subsequently charged with third-degree murder1 and

involuntary manslaughter.2          Following a non-jury trial, on November 8,

2011, the trial court convicted Alexander of third-degree murder.           On

January 4, 2013, the court sentenced Alexander to 16 to 32 years’

incarceration. Alexander filed a timely post-sentence motion, which the trial

court denied on January 17, 2013. This timely appeal followed.

        Preliminarily, we are constrained to note that Alexander has waived his

third issue on appeal, in which he challenges the discretionary aspects of his

sentence.     “It is well settled that [w]hen a challenge to the discretionary

aspect of a sentence is raised, an appellant must provide a separate

statement specifying where the sentence falls in the sentencing guidelines,

what provision of the sentencing code has been violated, what fundamental

norm the sentence violates, and the manner in which it violates the norm.

Pa.R.A.P. 2119(f).”       Commonwealth v. Sarapa, 13 A.3d 961, 962 (Pa.

Super. 2011) (internal quotes and citation omitted).          Even if properly

preserved in a post-sentence motion, “such a claim is waived if an appellant

does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing



____________________________________________


1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 2504(a).



                                           -2-
J-A32009-14



party objects to the statement's absence.” Commonwealth v. Foster, 960

A.2d 160, 163 (Pa. Super. 2008), aff’d, 17 A.3d 332 (Pa. 2011).

      Here, Alexander has failed to provide a Rule 2119(f) statement in his

brief, and the Commonwealth has objected to this omission.               See

Commonwealth’s Brief at 16.         Accordingly, we are constrained to find

Alexander’s challenge to the discretionary aspects of his sentence is waived.

      We have reviewed Alexander’s remaining issues raised on appeal,

along with the briefs of the parties and the certified record. Having

determined that the Honorable Jeffrey P. Minehart’s January 21, 2014

opinion ably and comprehensively disposes of Alexander’s issues raised on

appeal, with appropriate reference to the record and without legal error, we

will affirm on the basis of that opinion.

      Judgment of sentence affirmed.

      Judge Olson joins the memorandum.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




                                      -3-
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.'\-



       IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

               FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

                          CRIMINAL TRIAL DIVISION
                                                             CP-51-CR-0001713-2012    C~m. v. Alexander, 'Miiiam R.
                                                                                     Op1rnon




                                                                   111111111         Hiil111111111
                                                                              7106966061


. COMMONWEALTH OF PENNSYLVANIA                  PHILADELPHIA COUNTY

                                                COPRT OF COMMON PLEAS



                  vs.                           NO. CP-5 J-CR-0.001713-2012



WILLIAM ALEXANDER




                                            OPINION

PROCEDURAL H.ISTORY

       Defendant, William Alexander, was charged with third-degree murder -and involuntary

manslaughter following an altercation that occurred on August 26th, 2011 between himself and

the victim, David Woody, during which defendant killed Mr, Woody. Defendant waived his

right to a trial by jury, and on November 81h, 2011, this Court found defendant guilty of third-

degree murder, Sentencing was deferred until January 4t\ 2013, on which date this Court

sentenced defendant to 16 to 32 years' incarceration with credit for time served.

       On January 11th, 2013, defendant filed a timely post-sentence motion alleging that the

verdict was against the weight of the evidence and that the evidence was insufficient to sustain
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I.


     the verdict. It also asked that the sentence be stayed or reduced. On January 17, 2013, this Court

     denied the motion without a hearing. Defendant thereafter filed a timely notice of appeal and a

     requested Pa.R.A.P. 1925(b) statement.

     FACTUAL HISTORY

            On the evening of August 261\ 2011 atapproximately 10:00 p.rn., the victim approached

     defendant on East Collum Street in the Germantown area of Philadelphia. The victim, having

 been waiting for defendant to come down the street; put his arms out in front of defendant so as

 to incite a confrontation; Defendant then struck the victim multiple times· in the face with closed

 fists, rendering the victim unconscious. Defendant then fled the scene. Responding to           a radio
 call, police arrived at the scene and found the victim lying in the road still unconscious. The

 victim was transported to Albert Einstein Medical Center, and medical. staffpronounced him

dead at 10:49 p.m,

DISCUSSION

            In his first claim, defendant argues that his third-degree murder conviction was against

the weight of the evidence and that the evidence was insufficient to support the verdict because

he: 1.) was not the aggressor; 2.) attempted to flee each time; 3.) only hit the victim twice after

the victim accosted him the third time; and, 4.) was unarmed. In addition; defendant states that

the verdict was inappropriate under the facts because the victim was much younger than him and

larger in stature.

           Before addressing defendant's claims it is necessary that the distinctions between a claim

challenging the sufficiency of the evidence and a claim that challenges the; weight of the

evidence be delineated. In Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000), our Supreme

Court stated the following:
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      In order .to address this c1aim we find it :necessary to delineate
  the distinctions between a claim challenging the sufficiency of the
  evidence and a claim that challenges the weight of the evidence.
  The distinction· between these two challenges is critical. HN5A
  claim challenging the sufficiency of the .evidence, if granted,
  would preclude retrial under the double jeopardy provisions of the
· Fifth Amendment to the United States Constitution, and Article I,
  Section 10 of the Pennsylvania Constitution,' Tibbs v. Florida,457
  U.S. 31, 72 L. Ed. 2d 652, 102 S. Ct . 2211 (1982); Commonwealth
  v. Vogel, 501 Pa. 314, .461 A.2d 604 (Pa.· I 983), whereas claim
  challenging the weight of the evidence if granted would permit a
  second trial. Id.                              ·              ·

      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. Commonwealth v. Karkaria, 533 Pa. 412, 625
 A.2d 1167 (Pa. 1993). 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. Commonwealth v. Santana, 460. Pa.
 482, 333 A.2d 876 (Pa. 1975). 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.
 Commonwea]th v. Chambers, 528 Pa. 558, 599 A.2d 630 (Pa.
 1991).
     A motion for new tria1 on the grounds that the verdict is
 contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Commonwealth v.
Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (Pa. Super. 1984).
Thus, the trial court is under no obligation to view the evidence in
the light most favorab]e to the verdict winner. Tibbs, 457 U.S. at
3 8 n. 11. An allegation that the verdict is against the weight of the
evidence · is addressed to the discretion of the trial court.
Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (Pa. 1994).
A new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Thompson, supra. A trial judge
must do more than reassess the credibility of the witnesses . and
allege that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is against
the weight of the evidence do not sit as the thirteenth juror. Rather,
the role of the trial judge is to determine that "notwithstanding all
the facts, certain facts are so clearly of greater weight that to ignore
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                them or to give them equal weight with all the facts is to deny
                justice." Id.                            ·

Widmer, 744 A.2d at 751-752 (footnote omitted).

       · With these standards in mind, the Court will first !address· defendant's· challenge to the

. weight of the evidence. At trial, this Court, sitting as fact-finder, heard direct testimony from an
                                                              ;

eyewitness who observed defendant striking the victim multiple times including a blow to the

head at a time when the victim was incapable of fighting back· or· defending himself.                  The

eyewitness reported that defendant's first punch knocked: the victim off of his feet and that

defendant continued to strike the victim     as the   victim· lay on the ground almost motionless.

Further, this Court heard evidence from the medical examiner who. conducted the autopsy on the
                                                                  f

body of the victim indicating that the victim died from blunt trauma to the head arid that the

cause ofdeath was homicide. Given these facts, the verdict! is not so contrary to the evidence so

as to shock one's sense of justice, and therefore no relief should be granted on defendant's

weight claim.

       Defendant's sufficiency claim is also Jacking in merit. In challenging the sufficiency of

the evidence, defendant has failed to state which element of the clime of third-degree murder the

Commonwealth failed to prove beyond a reasonable doubt. This is fatal to his claim because the

Superior Court has repeatedly stated that, when challenging the sufficiency of the evidence on

appeal, a defendant's 1925(b) statement must "specify the element or elements upon which the
                                                                      .
                                                                      I

evidence was insufficient" in order to preserve the issue for appeal. Commonwealth v. Williams,

959 A.2d 1252, 1257 (Pa. Super. 2008) (quoting Commonwealth
                                                     .      v. Flores, 921 A.2d 517, 522-

23 (Pa. Super. 2007)). Consequently, it is suggested that this claim be deemed waived.

       To the extent that defendant's challenge to the sufficiency of the evidence appears to be

asserting that the evidence was insufficient because he acted in self-defense, it is clear that no
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relief need be granted on such a claim.     The crime of third degree murder occurs when one

commits a murder which is neither intentional nor committed during the perpetration of a felony.

See 18 Pa.C.S.A. § 2502(c). Third degree murder must be committed with the appropriate level

of culpability, namely malice. See Commonwealth v. Truong, 36 A.3d 592. "Malice is not

merely ill-will but, rather, wickedness of disposition; hardness of heart, recklessness of

consequences, and a mind regardless of social duty." Id at 597-98. Malice may be inferred from
                                                           '                                         .
the use of fists depending on particular circumstances including "the assailant's size, the manner

in which the fists are used, the ferocity and duration of .the attack, and provocation, if any."

Commonwealth v. MacArthlll', 629 A.2d 166, 168 (Pa. Super l 993).

       In Commonwealth v. Chine, 40 A.3d 1239 (Pa. Super. '2012), the Superior Court discussed the

defense of self-defense, stating:

                      As a general rule, an individual is justified in using force
               upon another person "when the actor believes that such force· is
               immediately necessary for the purpose of protecting himself
               against the use of unlawful ·force by such other person on the
               present occasion." 18 Pa.C.S.A. § 505(a (emphasis added).
             . However, the Commonwealth may disprove a claim that a
               defendant's use of deadly force was justifiable by establishing that:
               1) the defender did not reasonably believe deadly force was
               necessary to protect himself from imminent danger of death or
               great bodily harm, 2) the defender provokedthe incident, or 3) the
               defender violated a duty to retreat with safety or avoid the danger.
Chine, 40 A.2d at 1243.
                                                               '
       Any assertion that the evidence was insufficient to. prove that defendant committed the

crime of third-degree murder because the killing was committed in self-defense is belied by the

record. The record establishes that defendant was not free from fault in "provoking or

continuing" the fight with the victim and also that once he knocked the victim to the ground he

could have retreated in complete safety. Thus, even had defendant preserved his self-defense

claim no relief would be due thereon.
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        In addition, to the extent that defendant's sufficiency claim rests on an assertion that the

Commonwealth failed to prove that he acted with malice, by jumping on the victim after the

victim fell to the ground and then delivering numerous· blows and kicks to him, defendant's

actions manifested recklessness and recklessness of consequences sufficient to establish malice.

The blows inflicted by defendant to the victim's head were so severe that they resulted in fatal

brain swelling.     Such acts manifest a conscious disregard of the fact they likely would cause

serious bodily injury to the victim. In.Commonwealth        v. Bridges, 381 A.2d 125 (Pa. 1977), our

Supreme Court sustained a conviction for third-degree murder where the facts show that

appellant Bridges joined with others in an attack involving the throwing of punches and kicks at

the victim who was then stabbed by one of the assailants .. The Supreme Court held that the fact

that the appellant participated in the beating, standing alone, was sufficient to sustain the murder

conviction.   The Supreme Court stated that "[tjhe requisite malice can be inferred from such

'reckless' conduct. A fact-finder could infer malice from the circumstances of the beating .... "

Bridges, 381 A.2d at 540.         The holding of Bridges clearly applies here and, accordingly,

defendant's claim that the evidence was insufficient to prove the requisite degree of recklessness

should be rejected. Clearly, given these facts, even had defendant alleged that the evidence was

insufficient to prove malice, no relief would be due thereon. Accordingly, defendant's first issue

should be denied because it lacks merit.

       The second claim set forth in defendant's 1925(b) statement alleges:

                           This was a case of self defense. The verdict should. not have
                  gone higher than involuntary manslaughter. The defendant .threw two
                  quick punches, and he did not pounce on Mr. Woody when he was down.
                  The defendant did not intend to kill Mr. Woody, only to disable him
                  enough to get away from him. When the defendant left the scene, he did
                  not know Mr. Woody was dead. From the pathology reports, we know
                  that Mr. Woody was legally intoxicated at the time of the accident.
Defendant's Pa.R.A.P. 1925(b) statement, Issue 2.
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          In this claim, defendant is raising two separate issues.     The first alleges, without

 explication, that the case was one involving self defense. He then argues that the verdict should

 not have risen higherthan involuntary manslaughter.     With respect to defendant's self-defense

 claim, as noted in the discussion of the previous issue, the Commonwealth met its burden of

 disproving this defense. Therefore, for the reasons previously discussed, the self-defense claim

 should be denied for lack of merit.

           To the extent that defendant may be claiming that tliis claim involves imperfect self-

defense no relief is due on such a claim as well. In Commonwe~lth v. Bracey, the Supreme Court

stated:

                Under 18 Pa. C. S. § 2503(b):

                        A person who intentionally or knowingly kills an individual
                     commits voluntary manslaughter if at the time of the killing he
                     believes the circumstances to be such that, if they existed;.
                     would justify the killing under 'Chapter j of this title. (relating
                     to general principles of justification), but his belief is
                     unreasonable.
                 18 Pa. C.S. § 2503(b ) -. In explaining what elements are necessary
                 to establish unreasonable belief voluntary manslaughter, which is
                 sometimes referred to as "imperfect self-defense," we have stated;

                        This self-defense claim is imperfect in· only one respect -- an
                     unreasonable rather than a reasonable belief that deadly force
                    -was required to save the actor's life. All other principles of
                     justification under 18 Pa. C.S. § 505 must [still be met in order
                     to establish] unreasonable belief voluntary manslaughter.

Tilley, 595 A.2d at 582 (Pa. 1991 ).

          Instantly, the evidence shows that defendant could have retreated in complete

safety. Thus, the defense of imperfect self-defense was not available to him.

          Defendant's contention that the verdict should not have risen higher than involuntary

.manslaughter also does not entitle him to relief A person       is guilty   of involuntary manslaughter
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when, "as a direct result of the doing of an unlawful act        in: a reckless        or grossly negligent manner

... he.causes the death of another person." 18 Pa.C.S. § 2504(a).

          The crime of involuntary manslaughter was not at Issue here because defendant's actions

clearly were intentional,          As he notes in the body of this claim, he struck the victim· "only to

disable him enough to get away from him.". This was st~fficient to sustain the crime of third-
     .                                                             .                            .          '

degree murder because in attempting to disable the victim, defendant disregarded the very
                                                                       I

substantial risk that his actions could cause his death.          In addition,         the fact that the victim was

intoxicated tends to . demonstrate that defendant could have retreated in complete safety.

Accordingly, for all of the foregoing reasons, it is suggested that no relief be granted with respect

to this claim.

          Defendant's final claim on appeal is that the sentence imposed was excessive and harsh because

the victim was the aggressor, defendant attempted to avoid an'. altercation, and defendant .did not use a

weapon.       Sentencing       is a discretionary   issue solely to be decided           by the sentencing judge.

Commonwealth       v .. Pol!.fil:g, 832 A.2d 517, 525 (Pa.Super.2003).             "When imposing a sentence, the

sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721 (b), that is, the protection of the
                                                                    :f
public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the

defendant [and], of course, the court must consider the sentencing guidelines." Commonwealth v. Pullin,

892 A.2d 843, 847-48 (Pa. Super. 2006). A sentence will only be overturned on appeal where a manifest

abuse of discretion is found. Pollard, 832 A.2d 517, 525. A finding of an abuse of discretion requires the
                           .        .                                          .
record to indicate manifest unreasonableness, partiality, bias, or ill-will in the judgment.        Id .
                                                                           .
          To decide whether a defendant's appeal of the discretionary aspect of his sentencing is to be

considered on its merits, a court must first determine:

                  (1) whether appellant has filed a timely notice 9f appeal, see Pa.R.A.P.
                  902 and 903; (2) whether the issue was properly.preserved at sentencing
                  or in a motion to reconsider and modify sentence, see Pa.R.Crim.P.; (3)
                  whether appellant's brief has a fatal defect, Pa:R.A.P. 211'9(f); and (4)
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                    whether there is a substantial question that the sentence appealed from is
                    not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
    Commonwealth v. Mo..JJa, 992 A.2d 162, 169 (Pa.Super.2010) .

           .· Here, defendant filed a timely notice of appeal and the issue was properly preserved in a motion

    to reconsider and modify the sentence'.

          · In order to fulfill requirement ( 4) and show a substantial question, defendant must show that the
                                                                      I

. sentence imposed violates either a provision of the Sentencing Code or a fundamental norm of the

sentencing process. Commonwealth v. Lamonda, 52 A.2d 365·, 371 (Pa. Super. 2012).                 A claim that the
sentencing court did not give enough weight to mitigating factors alone does not raise a substantial

question. See Comm011wealth v. Cleveland, A.2d 1046 (Pa. Super. 1997).

           Here, defendant should be denied relief because he faHed to raise a substantial question. This

Court reviewed a pre-sentence report prior to imposing the minimum sentence recommended by the

sentencing guidelines'. See Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating
                                                                          t

where sentencing court had benefit of PSI, law assumes court was aware of and weighed relevant
                                                                          ·,
information).      In addition, when a sentencing court reviews a pre-sentence report and imposes a sentence

within the recommended limits of the sentencing guidelines, the sentence will not be found excessive.

Commonwealth ~. Co1:]n, 31 A.3d 293, 296 (Pa. Super. 20ll).                    Finally, defendant has not alleged

anything more than that the sentence was unduly harsh because of certain mitigating factors, which does

not alone raise a substantial question.

           Defendant was found guilty beyond a reasonable doubt of killing the victim by punching him

multiple times. Defendant had 39 previous arrests and l3 convictions on his record. Defendant was

previously sentenced to nine-and-a-half years in a federal prison and was on supervised release from that

sentence when he committed the instant offense. In light of these facts, sentencing defendant to the

minimum sentence recommended by the guidelines cannot be considered an abuse of discretion.

1
  On January 111\ 2013, defendant filed a post-sentence motion to stay or reduce the sentence.
2
  Defendant had a prior record score of 5 and an offense gravity score of 14 and the sentencing guidelines suggested
a sentencing range of 192-240 months, plus/minus 12 months.
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'   '




        CONCLUSION

            Based on the foregoing, the judgment of sentence should be affirmed.




            DATE:~
