J-S20018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ROBERT A. MAIER,

                         Appellant                  No. 970 WDA 2014


          Appeal from the Judgment of Sentence Entered May 2, 2013
               In the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0000195-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 20, 2015

      Appellant, Robert A. Maier, appeals nunc pro tunc from the judgment

of sentence entered on May 2, 2013, following his convictions of first-degree

murder and possessing a firearm with an obliterated serial number.        We

affirm.

      In November of 2011, Appellant and his girlfriend, Ellen Rose (“Ellen”),

had been in a romantic relationship for approximately twenty-three years.

N.T., 3/22/13, at 224. The victim in this matter (“Victim”) was Ellen’s adult

son, thirty-one-year-old Matthew Rose.     Id. at 52.    Victim and his wife

Brandi Rose (“Brandi”) had two young children.      Id. at 150.   Victim and

Brandi were estranged due to Victim’s substance abuse, but they were

attempting to reconcile.   Id. at 154.   Appellant was upset about Victim’s

drug use, and he also suspected that Victim told the police that Appellant
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was selling marijuana.   Id. at 237-239.   On Friday, November 25, 2011,

Brandi learned that her daughter made an allegation that Brandi’s nephew

had touched her inappropriately. Id. at 155. Brandi’s mother contacted the

police and Children and Youth Services (“CYS”). Id. at 156. Later that day,

there was a family meeting at Ellen’s house about the child’s allegations.

Id. at 157. Ellen, Appellant, Victim and Brandi, their two children, and some

family friends were at the family meeting. Id.

     The next day, Saturday, November 26, 2011, CYS came to Ellen’s

home and interviewed Brandi, Victim, and the child who made the complaint.

Id. at 161.   After the CYS interviews, Appellant arrived at Ellen’s house

intoxicated at approximately 2:30 p.m. N.T., 3/22/13, at 170. Appellant,

Brandi, and Victim convened in the kitchen. Id. Brandi and Appellant were

talking while Victim read a newspaper.       Id. at 176.    Appellant began

commenting on Brandi’s decision to reconcile with Victim, and Appellant

shared his belief that Victim informed the police about Appellant’s marijuana

dealing. Id. at 177-178. Victim gave no response and continued to read

the newspaper. Id. Appellant then pulled out a handgun and pointed it at

Victim. Id. at 178. Appellant took several steps toward Victim and fired the

weapon at Victim.   Id. at 179.   The bullet struck Victim in the side, and

Victim and Brandi fled outside the house. Id.

     Appellant followed Victim and Brandi outside, and while Victim was

moving toward a fence, Appellant shot him in the back. Id. at 185. Despite

having been shot twice, Victim attempted to climb the fence, and Appellant

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fired a third shot striking Victim in the lower back causing him to fall. Id. at

186-188. The first shot pierced Victim’s liver, and the third shot pierced the

liver and cut a furrow through Victim’s heart.     N.T., 3/25/13, at 191-194.

Victim died as a result of the third gunshot wound.        Id.   Appellant was

arrested later that day, and police recovered the murder weapon from his

truck. N.T., 3/22/13, at 89.1

        On March 27, 2013, following a jury trial, Appellant was found guilty of

first-degree murder and possession of a firearm with an obliterated serial

number. On May 2, 2013, Appellant was sentenced to an aggregate term of

life in prison. Appellant filed a timely post-sentence motion on May 7, 2013,

and Appellant was also granted permission to file a supplemental post-

sentence motion.       On August 19, 2013, the trial court denied Appellant’s

post-sentence motions.

        Appellant filed a notice of appeal with this Court; however, we

dismissed the appeal on February 10, 2014, due to Appellant’s failure to file

a brief.    On April 21, 2014, Appellant filed a timely petition for collateral

relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546, seeking the reinstatement of his direct appeal rights nunc pro

tunc.      In an order filed on May 12, 2014, the PCRA court reinstated


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1
  The ballistics evidence matched the shell casings found at the crime scene
to the handgun found in Appellant’s truck. N.T., 3/26/13, at 10-11.




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Appellant’s direct appeal rights, and on June 11, 2014, Appellant filed this

timely, direct appeal nunc pro tunc.2

       Appellant presents the following issues for this Court’s consideration:

       I. Was the weight of the evidence, beyond a reasonable doubt[]?

       II. Should the trial court have instructed the jury on Voluntary
       Manslaughter as a lesser included offense of homicide?

Appellant’s Brief at 5.3

       In his first issue, Appellant presents a challenge to the weight of the

evidence. “When the challenge to the weight of the evidence is predicated

on the credibility of trial testimony, our review of the trial court’s decision is

extremely limited.      Generally, unless the evidence is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, these

types of claims are not cognizable on appellate review.” Commonwealth v.

Rossetti,      863     A.2d     1185,     1191   (Pa.   Super.   2004)   (quoting

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2
 The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
3
  In his Statement of Questions Involved, Appellant raised a third issue
baldly challenging the sufficiency of the evidence. Appellant’s Brief at 5.
However, in the Argument portion of his brief, Appellant asserts that he
would not pursue the sufficiency of the evidence issue on appeal.
Appellant’s Brief at 10.    Confusingly, however, Appellant has, perhaps
unintentionally, presented a challenge to the sufficiency of the evidence
element to his argument regarding the weight of the evidence. We will
address this sufficiency of the evidence component in our discussion on
Appellant’s challenge to the weight of the evidence. Additionally, we have
re-ordered the issues for purposes of our discussion.



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Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa. Super. 1989)). “The

weight of the evidence is a matter exclusively for the finder of fact, who is

free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Forbes, 867 A.2d 1268,

1273-1274 (Pa. Super. 2005). “Moreover, where the trial court has ruled on

the weight claim below, an appellate court’s role is not to consider the

underlying question of whether the verdict is against the weight of the

evidence.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).

“Rather, appellate review is limited to whether the trial court palpably

abused   its   discretion   in   ruling   on    the   weight   claim.”    Id.   (citing

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. Super. 2003)) (citations

omitted).

      Here, Appellant properly raised his challenge to the weight of the

evidence in his May 7, 2013 post-sentence motion. As noted above, the trial

court denied Appellant’s motion in an order filed on August 19, 2013. In its

opinion, the trial court explained its decision to deny Appellant’s challenge to

the weight of the evidence as follows:

      [The Court] presided over [Appellant’s] jury trial and observed
      all testimony and evidence presented to the jury.             The
      empanelled jury found that such evidence proved [Appellant’s]
      guilt to first degree murder beyond a reasonable doubt. The
      Court does not find that the Jury’s verdict was so contrary to the
      evidence as to shock one’s sense of justice.

Trial Court Opinion, 11/15/13, at 9. We agree. As noted above, Appellant

pointed a gun at Victim and shot him once in the side.                   When Victim


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attempted to flee from the house, Appellant followed him and shot him again

in the back. When Victim continued moving and tried to climb a fence to

escape, Appellant shot him a third time causing Victim’s death. Appellant’s

actions were witnessed by Brandi, Victim’s wife, as revealed through her

testimony that was deemed credible by the jury.

       After review, we conclude that the verdict is supported by evidence of

record, and it does not in any way shock our sense of justice. Accordingly,

the trial court did not abuse its discretion, and Appellant’s weight of the

evidence claim fails.

       We further note that, while Appellant presented this issue as a

challenge to the weight of the evidence, he also argues that the element of

malice, which is necessary for a first degree murder conviction, 4 was not

established.    Appellant’s Brief at 11.       Such a claim is a challenge to the

sufficiency of the evidence.

       In reviewing challenges to the sufficiency of the evidence, “our

standard of review is de novo, however, our scope of review is limited to

considering the evidence of record, and all reasonable inferences arising

therefrom, viewed in the light most favorable to the Commonwealth as the
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4
  See Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014) (stating
that to sustain a conviction for first-degree murder, the Commonwealth
must prove the following elements beyond a reasonable doubt: (1) a human
being was unlawfully killed; (2) the defendant was responsible for the killing;
and (3) the defendant acted with malice and a specific intent to kill (citing
18 Pa.C.S. § 2502(a)).



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verdict winner.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super.

2015) (citation omitted).      “Evidence is sufficient if it can support every

element of the crime charged beyond a reasonable doubt.”            Id. (citation

omitted).   The evidence does not need to disprove every possibility of

innocence, and doubts as to guilt, the credibility of witnesses, and the

weight of the evidence are left to the finder of fact. Id. (citation omitted).

We will not disturb the verdict “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.” Id. (citation omitted).

      In a first-degree murder prosecution, both a specific intent to kill and

malice may be inferred from the defendant’s use of a deadly weapon upon a

vital part of the victim’s body. Commonwealth v. Ramtahal, 33 A.3d 602,

607 (Pa. 2011).       As noted above, Appellant, using a firearm, fired three

shots at Victim’s torso severing vital organs.     N.T., 3/25/13, at 191-194.

The first shot pierced Victim’s liver, and the third shot tore through Victim’s

heart, killing him.     Id.   We conclude that this evidence is sufficient to

establish the malice element of first-degree murder.        See Ramtahal, 33

A.3d at 608 (concluding that the Commonwealth proved malice by

establishing that the defendant pointed a loaded handgun at the victim and

fired a bullet that pierced an artery in the victim’s pelvis causing his death).

      Appellant next argues that the trial court erred when it refused to

instruct the jury on the crime of voluntary manslaughter. Appellant’s Brief

at 8. In reviewing claims involving jury instructions, we note as follows:

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     A trial court shall only instruct on an offense where the offense
     has been made an issue in the case and where the trial evidence
     reasonably would support such a verdict.... Instructions
     regarding matters which are not before the court or which are
     not supported by the evidence serve no purpose other than to
     confuse the jury.

Commonwealth v. Patton, 936 A.2d 1170, 1176 (Pa. Super. 2007)

(quoting Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996)). “A

voluntary manslaughter instruction is warranted only where the offense is at

issue and the evidence would support such a verdict.” Commonwealth v.

Johnson, 42 A.3d 1017, 1036 (Pa. 2012) (citation omitted). “To support a

verdict for voluntary manslaughter, the evidence would have had to

demonstrate that, at the time of the killing, Appellant acted under a sudden

and intense passion resulting from serious provocation by the victim.” Id.

     In making the objective determination as to what constitutes serious

provocation, reliance may be placed upon the cumulative impact of a series

of related events.   Commonwealth v. Carr, 580 A.2d 1362, 1364 (Pa.

Super. 1990) (citation omitted).

     Relevant to the heat of passion claim, we note that a defendant
     charged with murder may establish that he is guilty, not of
     murder, but rather of voluntary manslaughter, by proving that,
     at the time of the killing, he was acting under a sudden and
     intense passion resulting from serious provocation by the victim.
     Emotions encompassed by the term passion include anger, rage,
     sudden resentment or terror which renders the mind incapable of
     reason. Whether the provocation by the victim was sufficient to
     support a heat of passion defense is determined by an objective
     test: whether a reasonable man who was confronted with the
     provoking events would become impassioned to the extent that
     his mind was incapable of cool reflection. Significantly, we have
     clarified that both passion and provocation must be established,


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      and that if there be provocation without passion, or passion
      without a sufficient cause of provocation, or there be time to
      cool, and reason has resumed its sway, the killing will be
      murder.

Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012) (internal citations

and quotation marks omitted).

      Additionally, “[u]nder Pennsylvania law, a homicide defendant is

entitled to a charge on involuntary or voluntary manslaughter only if the

evidence adduced at trial would reasonably support a verdict on such a

charge.”    Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa. Super.

1996) (citation omitted).      “In other words, a trial court can give a

manslaughter instruction only when there is evidence tending to show that

the defendant is not guilty of the crime of murder but is guilty of the lesser

crime of manslaughter.”     Id. (citation omitted).   “In determining whether

the evidence would support a manslaughter charge, we must view the

evidence in the light most favorable to the defendant.”          Id. (citation

omitted).

      In addressing this issue, the trial court concluded:

         The evidence presented at [t]rial unambiguously showed that
      [Victim] was reading a newspaper in his mother’s kitchen when
      [Appellant] shot him; [Victim] made no statements or actions to
      provoke [Appellant] at that time. Pursuant to Commonwealth v.
      Carr, the Court further considered “the cumulative impact of a
      series of related events”. 580 A.2d 1362, 1364 (Pa.Super.
      1990). [Appellant’s] testimony and Defense Counsel’s [closing]
      argument and [the] testimony elicited on cross-examination
      attempted to impugn the general character of [Victim],
      describing his alleged drug abuse, poor parenting and
      unemployment.      Additionally, evidence was presented that
      [Appellant] believed [Victim] may have informed police of his

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       marijuana sales and that [Victim] fabricated the child abuse
       allegations. This Court first finds that such evidence is
       insufficient to cause a reasonable man to become impassioned to
       the extent that his mind was incapable of cool reflection.
       Compare Kim, supra.[5] This Court further finds that insofar as
       such actions may be “provoking”, [Appellant] had ample time to
       cool, as the most recent incident, the child abuse allegations,
       came to light the day prior to the homicide. Compare Kim, supra
       (in which the Superior Court found that the time needed for the
       defendant to retrieve a handgun from his vehicle was sufficient
       time to cool).

          Finally, as to “passion”, [Appellant] testified that he [was]
       “upset about the child abuse allegations some”, he was not at all
       upset about [Victim’s] alleged cooperation with the police, and
       that he that he had no recollection of shooting [Victim].

          Q. So, all that testimony on direct examination about what
          a piece of crap [Victim] was, that had nothing to do with
          why you pulled up at 409 Jackson Street; isn’t that right?

          A. I wanted to see what was going on, CYS was supposed
          to be there, and I wanted to see what was developed from
          that.

          …

          Q. But you weren’t upset about it at this point because you
          had already learned about it the day before; isn’t that
          right?

          A. Yeah, I would say I was still upset about it some.

          Q. But there had been a time period for you to kind of
          calm down about this situation; isn’t that right?

          A. Somewhat. Down at the bar it took my mind off of it.

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5
  See Commonwealth v. Kim, 888 A.2d 847 (Pa. Super. 2005) (holding
that where a defendant has time to cool off, but instead chooses to get a
gun and return to kill the victim, there is no provocation, and an instruction
on voluntary manslaughter is neither supported by the evidence nor
warranted).



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       Q. And you were worried that [Victim] was going to rat
       you out because you knew you were selling weed; isn’t
       that right?

       A. I thought about it, wasn’t really worried about it. It was,
       $20 worth, you know.

       Q. Isn’t it true that you did sell marijuana?

       A. On very few occasions.

       Q. And you were worried about [Victim] ratting you out for
       that; isn’t that right?

       A. Not really.

       Q. Not really? So you did or you didn’t tell Ellen that you
       were concerned about [t]hat?

       A. I was concerned that he might, but it wasn’t nothing I
       could do about it. It was nothing.

       Q. Do you remember talking to Brandi?

       A. I remember talking to Brandi.

       Q. And you heard Brandi testify; isn’t that right?

       A. Yes.

       Q. And you were short with her, but there were no loud
       voices; isn’t that right?

       A. Yes.

       Q. In other words, nothing happened at that point in time
       that caused you to become enraged; isn’t that right?

       A. Apparently not.

       Q. Do you remember pointing that gun at [Victim]?

       A. No.

       Q. Do you remember firing a shot into [Victim]?

       A. No.

       …



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          Q. Do you remember standing out that side door and
          taking another shot into [Victim’s] back? Do you remember
          that?

          A. No, I don’t.

          Q. Do you remember [Victim] trying to save his life and go
          over that fence? Do you remember that?

          A. No.

          Q. Do you remember firing another shot?

          A. No, ma’am.

          As in Patton, supra,[6] wherein the defendant’s testimony that
       that shooting was accidental, and not the result of passion,
       precluded    an    instruction   for   voluntary    manslaughter,
       [Appellant’s] testimony that he had no recollection of the
       shooting, similarly negates any inference, via his own testimony,
       that [Appellant] was acting in passion. Witnesses testified that
       [Appellant] was “angry”, “mad”, “short” and “in a bad mood”
       when he arrived at the residence but there was no evidence
       presented that [Appellant] went into a sudden and intense
       anger, rage, resentment or terror immediately prior to shooting
       [Victim]. See Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa.
       2012) (defining “emotions encompassed by the term ‘passion””).

          Based upon the foregoing, an instruction for voluntary
       manslaughter was not warranted, as there was not legally
       adequate provocation, there was ample time for [Appellant] to
       coolly reflect upon the inadequate provocation, and there was no
       evidence that [Appellant’s] actions were under a heat of passion.

Trial Court Opinion, 11/15/13, at 12-15 (footnotes omitted).




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6
   See Commonwealth v. Patton, 936 A.2d 1170 (Pa. Super. 2007)
(holding that where the defendant argued that a shooting death was an
accident, an instruction for voluntary manslaughter, which is an intentional
killing, was not warranted).



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     We agree with the trial court. The evidence revealed that while Victim

silently read a newspaper, Appellant had a conversation with Brandi.

Appellant then pulled out a gun and shot Victim. Appellant followed Victim

outside and shot him two more times until the third shot severed Victim’s

heart and he stopped moving. There was no evidence of provocation, and

despite multiple opportunities to cease his attack and cool off, Appellant

instead chose to follow Victim as he attempted to escape and repeatedly

shoot him. Thus, we discern no error in the trial court refusing to give an

instruction on the crime of voluntary manslaughter.

     For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2015




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