J-S49021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAMAR DARIUS ALEXANDER,

                            Appellant                 No. 395 EDA 2015


          Appeal from the Judgment of Sentence of January 5, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0003299-2012


BEFORE: PANELLA and OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 13, 2016

       Appellant, Shamar Darius Alexander, appeals from the judgment of

sentence entered on January 5, 2015, following his jury trial convictions for

first-degree murder, abuse of corpse, and possessing an instrument of

crime.1 Upon review, we affirm.

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

         On June 23, 2011, a Chester City police officer on routine
         patrol found the body of a deceased man, later identified as
         John Tony Dillard, wrapped in plastic trash bags in the back
         seat of a taxi in a lot in the 1100 block of Lamokin Street.
         An autopsy later revealed the presence of the plastic tip and
         spring of a Papermate pen through the left jugular vein of
         the deceased’s throat.      His body also had evidence of
         strangulation as well as multiple blunt force injuries, mostly
         to the face. The medical examiner later testified that the
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 5510, and 907, respectively.



*Former Justice specially assigned to the Superior Court.
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       manner of death was homicide, and the cause of death was
       a stab wound to the neck and strangulation contributed to
       by multiple blunt force injuries.

       At first, officers could not develop any solid leads or identify
       any prime suspects.         The deceased’s fiancé, [Shauna]
       Jordan, advised them that on the date of his death, she
       accompanied him to Philadelphia Traffic Court, where he
       paid off some tickets prior to a scheduled wedding date.
       She never saw him again.

       A month later, two Chester detectives pursued the only lead
       they had and ventured to the Philadelphia Traffic Court to
       view surveillance footage of the deceased’s final hours. The
       video showed the deceased, Jordan, and another man
       walking together in the courthouse.        Despite Jordan’s
       misidentification of the second man, the detectives were
       able, several months later, to identify him as [Appellant], a
       felon whose DNA profile was known to the Pennsylvania
       State Police.    The officers compared that profile with
       samples taken from the crime scene [including DNA found
       inside the pen used in the murder and on tape securing the
       garbage bags wrapped around the body] and, after
       confirming a match, obtained an arrest warrant.

       On February 23, 2012, Corporal Patrick McFate and
       Detective Tyler of the Chester Police Department arrested
       [Appellant] and, after advising him of his right to remain
       silent and securing his signature on a [waiver of rights]
       card, interrogated him. [Appellant] made a confession that
       was tape recorded and later played to the jury. Although he
       attempted to minimize his involvement in the murder, he
       admitted to participating with knowledge that his [alleged]
       accomplice[] intended to murder the victim.

                           *         *           *

       [Appellant] admitted his involvement in a scheme to kill
       Dillard in exchange for the cancellation of a drug debt owed
       to an individual known as “Poo.” He agreed that since he
       owed “Poo” money, one way to pay off the debt was to help
       another man by the name of Terrence Gardner “get rid of”
       Dillard. In response to [detective] question[ing] about the
       meaning of “get rid of,” [Appellant] explained that it meant

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         “kill.”   He attempted to minimize his involvement by
         asserting that Gardner actually stabbed Dillard in the neck
         with the pen. However, he admitted that he and Gardner
         plotted to kill Dillard, that he held Dillard down while
         Gardner administered blows to Dillard’s body and that, after
         they were certain that Dillard was dead, he wrapped the
         body with trash bags and tape.          At the end of the
         confession, he apologized to the deceased’s family for the
         fact that he “took a life” and agreed that he should
         “definitely” suffer the “consequences” of that action.

Trial Court Opinion, 6/3/2015, at 1-3 (record citations omitted).

       The   Commonwealth         charged      Appellant   with   first,   second,   and

third-degree murder and various related offenses.             The trial court held a

weeklong jury trial in October 2014 following which the jury convicted

Appellant of the aforementioned charges.             On January 5, 2015, the trial

court sentenced Appellant to a mandatory term of life imprisonment without

the possibility of parole for first-degree murder, followed by consecutive

terms of imprisonment of 30 to 60 months for possessing an instrument of

crime and 12 to 24 months of imprisonment for abuse of corpse. This timely

appeal followed.2
____________________________________________


2
     On January 14, 2015, the trial court granted trial counsel’s request to
withdraw from representation.      On January 16, 2015, the trial court
appointed new counsel for Appellant.        The trial court granted newly
appointed counsel’s request for an extension of time to file post-sentence
motions. While the timely filed post-sentence motions were pending,
Appellant filed a pro se notice of appeal. The trial court denied the post-
sentence motions on February 17, 2015. Counsel did not file a new notice of
appeal. However, upon receipt of Appellant’s pro se notice of appeal, the
trial court ordered appointed counsel to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Counsel for
Appellant complied timely. Thus, despite the premature, pro se filing of the
notice of appeal, we conclude the appeal was perfected by counsel’s and the
(Footnote Continued Next Page)


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      On appeal, Appellant presents the following issue for our review:

         I.     Whether the trial court erred in finding sufficient
                evidence to support the conviction of first[-]degree
                murder, 18 Pa.C.S.A. § 2502(a), rather than
                third-degree murder, 18 Pa.C.S.A. § 2502(c)?

Appellant’s Brief at 4 (complete capitalization omitted).3

      Appellant contends he “has never contested that he had some

involvement in the [] events leading up to the killing of John Tony Dillard on

June 23, 2011.”        Id. at 6.    However, Appellant claims the Commonwealth

failed to prove beyond a reasonable doubt that he committed first-degree

murder because a review of the evidence shows “Appellant acted in a

reckless manner consistent with [t]hird[-d]egree [m]urder.”        Id.    More

specifically, and in sum, Appellant maintains:

         In the instant case, there [was] no direct or circumstantial
         evidence that [] Appellant actually committed the homicide,
         regardless of the [Commonwealth’s] efforts to twist his
         inconclusive confession into evidence of malice, motive, and
         the required specific intent. The trial court opinion states
         that “malice may be inferred by the use of a deadly weapon
         by the accused on a vital portion of the victim’s body.” The
         alleged “deadly weapon” was a pen on which there was DNA
         evidence identifying [] Appellant, the victim, and the DNA of
                       _______________________
(Footnote Continued)

trial court’s subsequent actions. See Pa.R.A.P. 905(a)(5) (“A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”). The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on June 3, 2015.
3
  Appellant “expressly waives consideration of all other issues contained” in
his Pa.R.A.P. 1925(b) statement. Appellant’s Brief at 4 n.1.



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        a third party who was never identified by the police. But
        this individual was identified by [] Appellant as Terrence
        Gardner, the person who actually committed this crime. In
        spite of this identification, the [Commonwealth] chose to
        believe only those portions of Appellant’s statements which
        allegedly supported a specific intent to kill and not his
        identification of the real killer. Since the police were not
        able to find this individual, the trial court found that “the
        jury could have reasonably concluded that Mr. Gardner was
        a fictional character and that no other person was present
        during the commission of the crime.” The trial court further
        found that even if Gardner committed the actual killing, []
        Appellant “was guilty as an accomplice.”

        Simply put, the trial court cannot have it both ways. The
        trial court in effect dismisses the existence of Terrence
        Gardner, yet assumes his existence to posit the argument of
        accomplice liability. The trial court engages in a confusing
        double standard. The trial court ignores the significance of
        the DNA evidence on a murder weapon which points to the
        existence of a perpetrator other than [] Appellant. Yet this
        same trial court opinion defends the verdict of [f]irst[-
        d]egree [m]urder under an accomplice liability theory based
        on the existence of this same perpetrator whom the trial
        court calls a “fictional character.” The person either existed
        or he did not. Clearly, the only reasonable conclusion is to
        find that this person did exist and thus there must be at the
        very least confusion as to whether [] Appellant was the
        murderer. The DNA of Terrence Gardner itself should have
        created reasonable doubt as to who actually committed the
        homicide. The only conclusion which is manifestly obvious
        beyond a reasonable doubt is that [] Appellant took part in
        a beating of the victim but may not have had anything to do
        with the actual murder. This evidence adduced at trial does
        not compel a conclusion which supports a finding of the
        recklessness and indifference to human life on the part of []
        Appellant consistent with [t]hird[-d]egree [m]urder.

Id. at 9-10 (record citations omitted).




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      “A claim impugning the sufficiency of the evidence presents us with a

question of law.” Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.

Super. 2014) (citation omitted). Our standard of review is well-established:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether 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 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 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
        finder 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.

        This standard is equally applicable to cases where the
        evidence is circumstantial rather than direct so long as the
        combination of the evidence links the accused to the crime
        beyond a reasonable doubt. Although a conviction must be
        based on more than mere suspicion or conjecture, the
        Commonwealth need not establish guilt to a mathematical
        certainty.

Id. (citations and quotations omitted).

      “A criminal homicide constitutes murder of the first[-]degree when it is

committed by an intentional killing.”        18 Pa.C.S.A. § 2502(a).         The

legislature has defined “intentional killing” as a “[k]illing by means of poison,


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or by lying in wait, or by any other kind of willful, deliberate and

premeditated killing.” 18 Pa.C.S.A. § 2502(d).     “In order to prove first-

degree murder, the Commonwealth must establish that: (1) a human being

was killed; (2) the accused caused the death; and (3) the accused acted

with malice and the specific intent to kill.” Commonwealth v. Poplawski,

130 A.3d 697, 709 (Pa. 2015) (citation omitted).

     “The jury may infer the intent to kill based upon the defendant's use of

a deadly weapon on a vital part of the victim's body.”    Id.   “[I]tems, not

normally considered to be weapons, have [] been categorized as deadly

weapons under certain circumstances […when] used in such a manner as to

create a high probability of serious bodily injury or death.” Commonwealth

v. Raybuck, 915 A.2d 125, 128 (Pa. Super. 2006) (internal citations

omitted).   Moreover, “evidence of manual strangulation is also sufficient to

establish specific intent required for first-degree murder.” Commonwealth

v. Mitchell, 902 A.2d 430, 445 (Pa. 2006) (citation omitted).

     The medical examiner testified that the victim’s cause of death was a

combination of a stab wound to the left jugular vein and strangulation. N.T.,

10/7/2014, at 20-25. There were also injuries to the victim “consistent with

a struggle.”   Id. at 23. The stab wound penetrated two inches into the

decedent’s neck. Id. at 20.   The medical examiner removed “a plastic tip of

a pen along with a spring that goes into the plastic tip [that] was stuck in

the subject’s throat.” Id. A forensic scientist from the Pennsylvania State

Police laboratory testified that she analyzed the broken pen casing found at

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the scene of the crime and discovered Appellant’s DNA inside of it.           N.T.,

10/8/2014, at 71-73.      Appellant was one of the last people seen on

surveillance video with the decedent before his demise. N.T., 10/7/2014, at

130-138.    Appellant admitted to detectives that he had a $6,000.00 drug

debt that would be forgiven if he killed the victim. N.T., 10/8/2014, at 114-

115.

       Viewing   the   evidence   in   the    light   most   favorable   to    the

Commonwealth, as our standard requires, we conclude the Commonwealth

presented sufficient evidence to support Appellant’s first-degree murder

conviction. Here, there was no dispute that a human being was killed. The

Commonwealth provided evidence that Appellant caused the death by

showing:    (1) Appellant had a motive to kill the victim to have a debt

discharged; (2) Appellant was last seen with the decedent; and (3)

Appellant’s DNA was found on the murder weapon. The Commonwealth also

proved Appellant’s specific intent to kill the victim.       Appellant employed

several methods to kill the victim, forcefully stabbing him in a vital organ

and strangling him, while the decedent struggled. All of this evidence taken

together demonstrated a willful, deliberate, and premeditated killing. Thus,

we conclude the Commonwealth proved each element necessary to support

Appellant’s first-degree murder conviction.

       Furthermore, while Appellant implicated another person in the murder

during his confession to police, the jury was free to believe all, part or none

of that evidence.      The Commonwealth also presented evidence that

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Appellant was never able to identify Terrence Gardner with specificity and

police were unable to locate a man by that name. N.T., 10/8/2014, at 120-

121. Accordingly, we need not consider Appellant’s conviction in light of an

alternative theory of accomplice liability.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




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