J-S13024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

GERALD SMITH

                             Appellant                No. 2660 EDA 2015


             Appeal from the Judgment of Sentence March 4, 2008
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0312371-2006


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 13, 2017

        Gerald Smith appeals nunc pro tunc from the judgment of sentence,

entered in the Court of Common Pleas of Philadelphia County, following his

conviction for third-degree murder,1 possessing an instrument of crime

(PIC),2 and recklessly endangering another person (REAP).3      Upon review,

we affirm on the basis of the opinion authored by the Honorable Steven R.

Geroff.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 907.
3
    18 Pa.C.S. § 2705.
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      The trial court summarized the relevant facts and procedural history of

this matter as follows:

      On November 26, 2007, following a jury trial before Judge
      Carolyn Engel Temin, [(now retired)], [Smith] was found guilty
      of murder of the third degree, [PIC], and [REAP]. On March 4,
      2008, [Smith] was sentenced to [9½ to 20] years[’]
      incarceration for the offense of murder of the third degree and a
      consecutive prison term of [1 to 2] years[’ incarceration] for the
      offense of REAP. No further penalty was imposed on the [PIC]
      conviction.    At trial, [Smith] was represented by Brian
      McMonagle, Esquire. No direct appeal was filed on [Smith’s]
      behalf.

      On February 17, 2009, [Smith] filed a timely pro se petition
      under the Post[-]Conviction Relief Act (“PCRA”), 42 Pa.C.S. §[§]
      9541 et seq., in which he alleged ineffective assistance of his
      trial counsel for failure to appeal [his] convictions. Attorney
      James Bruno was subsequently appointed to represent [Smith]
      in the PCRA proceedings. On February 3, 2011, the trial court
      gave an instruction to Mr. Bruno to obtain from [Smith] a
      statement explaining whether he had requested his trial attorney
      to take an appeal. On or about December 7, 2011, Mr. Bruno
      filed an affidavit [] on [Smith’s] behalf[, which indicated a desire
      on Smith’s part to file an appeal but did not include an indication
      of a direct request for an appeal].

      On December 9, 2011, the court issued [n]otice under
      [Pa.R.Crim.P.] 907[,] notifying [Smith] of its intention to dismiss
      his PCRA [p]etition for the reason that the issues he raised in the
      [p]etition were without merit. On January 23, 2012, the court
      dismissed [Smith’s] [p]etition.

      [Smith] timely appealed; however, Mr. Bruno failed to comply
      with the court’s February 23, 2012 order to provide the court
      with a [c]oncise [s]tatement of [m]atters [c]omplained of on
      [a]ppeal pursuant to Pennsylvania rule of Appellate Procedure[]
      1925(b). In addition, Mr. Bruno neglected to file a brief on
      [Smith’s] behalf; this neglect resulted in the matter being
      remanded to the PCRA court to determine whether or not
      counsel had abandoned [Smith]. The appeal was reinstated on
      July 31, 2012, after counsel belatedly filed the brief. On April 5,
      2012, Judge Temin issued an opinion in this matter[, denying


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     the petition because the affidavit did not aver that Smith
     requested counsel to file an appeal].

            On March 22, 2013, following a temporary suspension
     from the practice of law, Mr. Bruno requested the Superior
     Court’s permission to withdraw from the case.        He also
     petitioned the Court to have the case remanded to the PCRA
     court for the appointment of [] new counsel. The petition was
     granted on April 10, 2013.

     Thereafter, Janis Smarro, Esquire, was appointed as [Smith’s]
     new counsel. On May 20, 2013, Attorney Smarro filed an
     “Application to Vacate Briefing Order and for Remand to Trial
     Court with Leave to File a Concise Statement of Errors
     Complained of on Appeal and for the Trial Court’s Preparation of
     a Supplemental Pa.R.A.P. 1925(a) Opinion” on [Smith’s] behalf.

     On June 7, 2013, the Superior Court granted the Application to
     Vacate. The Superior Court issued an [o]rder remanding the
     Application to Vacate and the certified record to the PCRA court
     for a period of 60 days, permitting [Smith] to file a new Rule
     1925(b) statement with the PCRA court and instructing the PCRA
     court to prepare a supplemental opinion pursuant to Rule
     1925(a) within thirty days of the date the 1925(b) statement
     was received.

     On June 11, 2013, [Smith] filed a 1925(b) [c]oncise [s]tatement
     of [e]rrors [c]omplained of on [a]ppeal.           In the 1925(b)
     [s]tatement, [Smith claimed that his trial counsel was ineffective
     for failure to protect [his] appellate rights by filing a [n]otice of
     [a]ppeal as requested by [Smith]. [Smith] argued that he was
     entitled to post-conviction relief in the form of the grant of leave
     to file a [n]otice of [a]ppeal nunc pro tunc.

     On June 18, 2014, Natasha L. Lowe, Trial Division/Appeal Unit
     Supervisor, sent a letter addressed to Joseph D. Seletyn,
     Esq[uire], Prothonotary of the Superior Court of Pennsylvania, in
     which she noted that no supplemental opinion would be filed in
     this matter because Carolyn E. Temin, the trial judge who
     presided over this case, was no longer sitting as a [j]udge in
     Philadelphia County.

     On February 9, 2015, the Superior Court issued a decision
     vacating the PCRA court’s order and remanding for an
     evidentiary hearing. The Superior Court concluded that the
     PCRA court erred in dismissing [Smith’s] PCRA [p]etition without

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       first conducting an evidentiary hearing; the Superior Court,
       therefore, relinquished its jurisdiction.

       On September 1, 2015, [Smith’s] motion to reinstate appellate
       rights nunc pro tunc was heard and granted. On September 2,
       2015, [Smith], through his counsel, filed a [n]otice of [a]ppeal
       [n]unc [p]ro [t]unc. On Nobembver 3, 2015, [Smith’s] counsel
       field, sua sponte, a [c]oncise [s]tatement of [e]rrors
       [c]omplained of on [a]ppeal pursuant to Pa.R.A.P. 1925(b).

                                           ...

       The evidence adduced at trial established . . . that on March 11,
       2006, [Smith] committed murder of the third degree by firing a
       bullet into the head of the decedent, Lynette (“Net”) Logan, then
       six month[s’] pregnant with [Smith’s] child, at 906 North 41[st]
       Street in the City of Philadelphia. The decedent was killed with a
       .38 caliber Special Magnum five-shot chrome with black rubber
       grips, which, by [Smith’s] own admission, was the weapon from
       which the fatal shot was fired. The jury also found the evidence
       to be sufficient to support the guilty verdict on the charges of
       [PIC] and [REAP].4

Trial Court Opinion, 8/22/16, at 1-5 (citations omitted).

       On appeal, Smith raises the following questions for our review:

       1. Is [Smith] entitled to the grant of a new trial since the trial
          court erred when it denied his pretrial motion to suppress his
          statement[s]?

       2. Is [Smith] entitled to an arrest of judgment with regard to his
          convictions for third-degree murder, [REAP] and [PIC,] since
          the evidence is insufficient to sustain these convictions as the
          Commonwealth failed to prove [Smith’s] guilt of these crimes
          beyond a reasonable doubt?



____________________________________________


4
  The trial court’s Rule 1925(a) opinion details the specific testimony of the
individuals who testified at trial, which detail we will not recite here. See
Trial Court Opinion, 8/22/16, at 5-19.




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        3. Is [Smith] entitled to a new trial as a result of the trial court’s
           ruling that precluded his attempt to introduce evidence
           concerning the victim’s prior suicide attempt?5

Brief for Appellant, at 4.

        In his first issue, Smith asserts that the trial court erred by denying his

motion to suppress statement[s] he made in which he indicated that he fired

the .38 caliber gun and caused the victim’s death during an attempt to take

the gun from her.

        In addressing a challenge to the denial of a suppression motion, our

review

        is limited to determining whether the suppression court’s factual
        findings are supported by the record and whether the legal
        conclusions drawn from those facts are correct. Because the
        Commonwealth prevailed before the suppression court, we may
        consider only the evidence of the Commonwealth and so much of
        the evidence for the defense as remains uncontradicted when
        read in the context of the record as a whole. Where the
        suppression court’s factual findings are supported by the record,
        we are bound by these findings and may reverse only if the
        court’s legal conclusions are erroneous.

Commonwealth v. Hoppert, 39 A.3d 358, 361 (Pa. Super. 2012) (citation

omitted).

        Prosecutors may not use statements stemming from the custodial

interrogation of a defendant unless procedural safeguards are in place to

secure the defendant’s privilege against self-incrimination. Miranda v.

Arizona, 384 U.S. 436, 444 (1966). However, voluntary statements are not
____________________________________________


5
    Smith’s claims on appeal have been renumbered for ease of disposition.




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barred      from    admission       by    Miranda     in   criminal   prosecutions.

Commonwealth v. Wiggins, 371 A.2d 207, 211 (Pa. 1977).

        In this matter, at the time Smith first made statements to police, he

was being questioned as a witness rather than a suspect.              The detective

testified that she believed the incident to be a suicide6 rather than a

homicide at that point and conducted her interview of Smith accordingly.

Thus, the police did not consider Smith to be in custody and did not read

him Miranda rights.         Smith was not handcuffed or otherwise restrained.

Thereafter, when asked if there was anything Smith would like to tell police,

he responded affirmatively; he was Mirandized and indicated he wished to

proceed without an attorney before making incriminating statements.

Accordingly, the court’s finding that Smith was free to leave is supported by

the record. Hoppert, supra. Moreover, Smith states in his brief that he

was Mirandized and made voluntary statements afterward.                   Brief for

Appellant, at 17. Judge Geroff’s opinion thoroughly analyzes this issue, and

we affirm on the basis of his well-reasoned opinion.

        Next, Smith argues that the evidence was insufficient to convict him of

third-degree murder, PIC, and REAP.              In considering sufficiency of the

evidence claims,

        we must determine whether the evidence admitted at trial, and
        all reasonable inferences drawn therefrom, when viewed in the
____________________________________________


6
    The victim was in the bathtub, allegedly threatening to commit suicide.



                                           -6-
J-S13024-17


      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. . . . Where
      there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      Of course, the evidence established at trial need not preclude
      every possibility of innocence and the fact-finder is free to
      believe all, part or none of the evidence presented.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

The Commonwealth can satisfy its burden via wholly circumstantial

evidence. Id.

      “Third[-]degree murder occurs when a person commits a killing which

is neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice.” Commonwealth v. Morris, 958 A.2d 569,

576 (Pa. Super. 2008); 18 Pa.C.S. § 2502(c).         Malice can be shown by

“proving that a defendant used a dangerous weapon on a vital part of

another’s body.” Commonwealth v. Clark, 411 A.2d 800, 802 (Pa. Super.

1979). A gun is clearly a dangerous weapon, and, here, it is undisputed that

the victim died from a gunshot wound to the head. Smith confessed to firing

the shot that killed the victim.    As noted above, the trial court correctly

denied Smith’s motion to suppress this evidence.        Accordingly, sufficient

evidence was presented to convict Smith of third-degree murder. Watley,

supra.    Judge Geroff thoroughly analyzes the sufficiency of Smith’s

conviction, and we rely on his opinion in disposing of this issue.

      As to PIC, a person is guilty “if he possesses any instrument of crime

with intent to employ it criminally.” 18 Pa.C.S. § 907. Criminal intent may



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be inferred from the circumstances surrounding the possession of the

instrument of crime. Commonwealth v. Andrews, 768 A.2d 309, 318 (Pa.

2001). Here, according to statements he made to police, Smith possessed a

.38 caliber handgun, which killed the victim when it fired while in his

possession.    Accordingly, the requisite intent can be inferred from the

situation, id., and sufficient evidence was presented to convict Smith of PIC.

Watley, supra. Judge Geroff thoroughly analyzes this issue, and we rely on

his opinion in disposing of this sufficiency claim.

      A person is guilty of REAP if he “recklessly engages in conduct which

places or may place another person in danger of death or serious bodily

injury.”   18 Pa.C.S. § 2705.      Here, Smith and the victim were verbally

fighting and Smith introduced a loaded gun into the altercation and

ultimately fired it at the victim. Thus, the elements of REAP are satisfied.

See Commonwealth v. Hopkins, 747 A.2d 910 (Pa. Super. 2000)

(brandishing loaded firearm during commission of crime provides sufficient

basis for factfinder to conclude that defendant proceeded with conscious

disregard for the safety of others had present ability to inflict great bodily

harm or death).    Accordingly, sufficient evidence was produced to convict

Smith of REAP, Watley, supra, and we rely upon the thorough analysis of

Judge Geroff’s opinion to affirm Smith’s conviction.

      Finally, Smith asserts that the trial court erred by refusing to admit

evidence of the victim’s prior suicide attempt. We note that our standard of

review is one of deference, since “[t]he admissibility of evidence is solely

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within the discretion of the trial court and will be reversed only if the trial

court has abused its discretion.” Commonwealth v. Herb, 852 A.2d 356,

363 (Pa. Super. 2004). Instantly, the trial court permitted evidence of the

victim’s previous suicide attempt to be admitted into the trial, but held that

this would open the door to rebuttal evidence regarding the contentious

relationship between Smith and the victim that may have affected her state

of mind.7       See Pa.R.E. 404(a)(2)(B)(i) (evidence of alleged victim’s

character trait admissible in criminal case; if such evidence admitted,

prosecutor may offer rebuttal evidence).         Accordingly, we do not find that

the court abused its discretion, Herb, supra, and we rely upon Judge

Geroff’s well-reasoned opinion in this regard.

       For the foregoing reasons, we affirm the judgment of sentence on the

basis of the opinion of Judge Steven R. Geroff. The parties are instructed to

attach a copy of the opinion dated August 22, 2016, in the event of further

proceedings in this matter.

       Judgment of sentence affirmed.




____________________________________________


7
   Smith, however, chose not to introduce such evidence, and the
Commonwealth therefore did not have an occasion to offer rebuttal
evidence. Thus, we find no abuse of discretion.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




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