J-S52026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JIMMY SANTOS

                            Appellant                 No. 2503 EDA 2015


         Appeal from the Judgment of Sentence entered June 19, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0015316-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 19, 2016

        Appellant, Jimmy Santos, appeals from the judgment of sentence

imposed on June 19, 2015 in the Court of Common Pleas of Philadelphia

County following his convictions of third-degree murder, violations of the

Uniform Firearms Act (“VUFA”), and possessing an instrument of crime

(“PIC”).1 Appellant argues the evidence was insufficient to support his third-

degree murder conviction. He also asserts trial court error for delivering a

jury instruction on third-degree murder. Following review, we affirm.

        The trial court condensed the underlying facts of the case as follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c), 6101 et seq., and 907, respectively.
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       Abba Abukanan was a drug addict. A couple of days prior to
       October 25, 2012, Abukanan went to the area of 5 th and
       Cornwall Streets in Philadelphia to purchase illegal drugs [from
       Appellant and William Colon] using fake money[.] [Appellant
       and Colon] did not appreciate that Abukanan was attempting to
       pawn off fake money to them and an altercation ensued.
       [Appellant] and Colon chased Abukanan off the block and told
       him not to come back.         Abukanan, being a drug addict[,]
       returned on October 25, 2012, money in hand to buy more illicit
       drugs[. W]hen he was recognized, [Appellant and Colon] were
       alerted to his presence. [Appellant] shot Abukanan in the left
       wrist and leg. Colon then shot Abukanan in the back of the
       head, executing him.        When police arrived on the scene,
       Abukanan was found dead, with three gunshot wounds and the
       money still gripped in his hand.

Trial Court Rule 1925(a) Opinion (“T.C.O.”), 7/29/15, at 3 (references to

notes of testimony omitted).2

       As the trial court explained, Appellant was arrested on May 10, 2013,

and was charged with, inter alia, murder, VUFA and PIC. T.C.O., 7/29/15, at

1. Following a trial that began on January 7 and concluded on January 16,

2015, a jury convicted Appellant of third-degree murder, VUFA and PIC. The

jury acquitted him of first-degree murder and criminal conspiracy, 18

Pa.C.S.A. §§ 2502(a) and 903, respectively.       He was sentenced to an

____________________________________________


2
  Appellant was tried jointly with William Colon (“Colon”) who was convicted
and sentenced to life in prison without parole for first-degree murder, 18
Pa.C.S.A. § 2502(a). The trial court imposed concurrent sentences of five to
ten years and three and one-half to seven years for VUFA and PIC
convictions, respectively. Colon’s related appeal, challenging the sufficiency
and weight of evidence as well as the denial of mistrial motions and a jury
instruction on alibi evidence, is docketed at No. 1701 EDA 2015. The
appeals have not been consolidated.




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aggregate term of not less than thirty nor more than sixty years in prison,

including twenty to forty years for the third-degree murder conviction.

       Appellant filed a timely appeal from his judgment of sentence. Both

he and the trial court complied with Pa.R.A.P. 1925.3           Appellant now

presents two issues for our consideration:

       I.     Was the evidence insufficient to convict Appellant of
              [m]urder in the 3rd [d]egree, when the evidence and
              verdicts showed that Appellant shot the victim in the thigh
              and wrist, while the co-defendant shot the victim in the
              back of the head, and Appellant was found not guilty of
              [c]onspiracy to [c]ommit [m]urder?

       II.    Did the [t]rial [c]ourt err by instructing the jury on 3rd
              [d]egree [m]urder with regards to Appellant, when the
              medical and scientific evidence clearly showed that the
              gunshot wounds to the victim’s thigh and wrist, which
              were attributable to appellant, did not cause the victim’s
              death?

Appellant’s Brief at 3.

       In his first issue, Appellant challenges the sufficiency of the evidence

for his third-degree murder conviction in light of evidence showing that

although Appellant shot the victim in the wrist and thigh, it was Colon’s shot

to the head that killed the victim. Appellant argues that his actions did not

result in the victim’s death and, therefore, Appellant cannot be criminally

responsible for the death.


____________________________________________


3
 We remind Appellant’s counsel of the requirement to attach a copy of the
Pa.R.A.P. 1925(b) statement to Appellant’s brief. Pa.R.A.P. 2111(11), (d).



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      As a challenge to sufficiency of the evidence, Appellant presents a

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

Super. 2014) (citing Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000)). As this Court reiterated in Antidormi:

      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.

Id. at 756 (quoting Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa.

Super. 2011) (additional citation omitted)).

      The statutory definition of third-degree murder is simply, “All other

kinds of murder [other than first- or second-degree murder] shall be murder

of the third degree.   Murder of the third degree is a felony of the first

degree.” 18 Pa.C.S.A. § 2502(c). In Commonwealth v. Fisher, 80 A.3d

1186 (Pa. 2013), our Supreme Court examined the crime of third-degree

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murder, albeit in the context of conspiracy to commit the crime. However,

its discussion of the crime of third-degree murder is instructive.    As the

Court explained:

     Section 2502 of the Crimes Code defines the three degrees of
     murder. This section sets forth the mens rea for first degree
     murder, see 18 Pa.C.S. § 2502(a) (an intentional killing), and
     defines second degree murder as that occurring during the
     perpetration of a felony. See id., § 2502(b). Regarding third
     degree murder, however, the statute simply states, “All other
     kinds of murder shall be murder of the third degree.” Id.,
     § 2502(c).   Importantly, § 2502(c) does not set forth the
     requisite mens rea for third degree murder; however, § 302(c)
     of the Crimes Code provides, “When the culpability sufficient to
     establish a material element of an offense is not prescribed by
     law, such element is established if a person acts intentionally,
     knowingly or recklessly with respect thereto.” Id., § 302(c)
     (emphasis added).

     Case law has further defined the elements of third degree
     murder, holding:

        [T]o convict a defendant of the offense of third degree
        murder, the Commonwealth need only prove that the
        defendant killed another person with malice aforethought.
        This Court has long held that malice comprehends not only
        a particular ill-will, but . . . [also a] wickedness of
        disposition,   hardness    of   heart,  recklessness   of
        consequences, and a mind regardless of social duty,
        although a particular person may not be intended to be
        injured.

     Commonwealth v. [Oscar] Santos, 583 Pa. 96, 876 A.2d 360,
     363 (2005) (alteration in original) (internal citation, quotation,
     and emphasis omitted); see also Commonwealth v. Drum, 58
     Pa. 9, 15 (1868) (defining malice as quoted above). This Court
     has further noted:

        [T]hird degree murder is not a homicide that the
        Commonwealth must prove was committed with malice
        and without a specific intent to kill. Instead, it is a
        homicide that the Commonwealth must prove was

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        committed with malice, but one with respect to which the
        Commonwealth need not prove, nor even address, the
        presence or absence of a specific intent to kill. Indeed, to
        convict a defendant for third degree murder, the jury need
        not consider whether the defendant had a specific intent to
        kill, nor make any finding with respect thereto.

     Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 317
     (2001) (quoting Commonwealth v. Young, 561 Pa. 34, 748
     A.2d 166, 174–75 (1999)).

     Accordingly, the Commonwealth is correct that absence of
     specific intent to kill is not an element of third degree murder;
     rather, such crime is an intentional act, characterized by malice,
     that results in death, intended or not.         Appellees and the
     Superior Court beg the question—in stating an element of the
     crime of third degree murder is an unintentional killing, and one
     cannot intend an unintentional act, they misstate the elements
     of third degree murder. True, the intent to kill is a defined
     element of first degree murder—this does not mean an element
     of third degree murder is the polar opposite of intent to kill, such
     that the Commonwealth must prove a lack of intent to kill to
     convict of third degree murder. The Commonwealth has no such
     obligation; evidence of intent to kill is simply irrelevant to third
     degree murder. The elements of third degree murder absolutely
     include an intentional act, but not an act defined by the statute
     as intentional murder. The act sufficient for third degree is still a
     purposeful one, committed with malice, which results in death[.]

Id. at 1191.   This Court has found malice where a defendant employed a

deadly weapon, Commonwealth v. Marks, 704 A.2d 1095 (Pa. Super.

2007), and where a defendant perpetrated a shooting motivated by a prior

incident involving the victim, Commonwealth v. Marquez, 980 A.2d 145

(Pa. Super. 2009).

     Against that backdrop, it is incumbent upon this Court to review the

evidence, in a light most favorable to the Commonwealth as verdict winner,

to determine whether the evidence was sufficient to sustain a verdict of

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murder in the third degree. Our review leads us to conclude that it does. As

the trial court observed, witnesses Julio Rosa and Alex Cruz both denied at

trial any recollection of the shooting. T.C.O., 7/29/15, at 5 (references to

notes of testimony omitted).      However, Rosa previously stated that he

observed Appellant arguing with the victim prior to the shooting and both

Rosa and Cruz told the police that Appellant shot the victim in the wrist and

thigh and that Colon then went behind the victim and shot him in the head.

Id.   As the trial court correctly observed, “Clearly [Appellant] deliberately

attacked his victim, shooting him twice. Both [Appellant and Colon] rushed

the decedent, blasting away at an unarmed and unaware victim, shooting

him at point blank range in the wrist, leg and back of the head. This was a

premeditated, deliberate attack with a deadly weapon.”         Id.   Again, to

convict a defendant for third-degree murder, the jury need not consider

whether the defendant had a specific intent to kill, nor make any finding with

respect thereto.   Fisher, supra, 80 A.3d at 1191.

      Appellant acknowledges that two of his gunshots struck the victim but

argues that it was Colon, not Appellant, who mortally wounded the victim.

Appellant ignores that the trial court instructed the jury on accomplice

liability. “A person is an accomplice of another person in the commission of

an offense if . . . with the intent of promoting or facilitating the commission

of the offense, he . . . aids or agrees or attempts to aid such other person in

planning or committing it.” 18 Pa.C.S.A. § 306(c)(1)(ii). Accomplice liability


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“may be established wholly by circumstantial evidence.            Only the least

degree of concert or collusion in the commission of the offense is sufficient

to sustain a finding of responsibility as an accomplice. No agreement is

required, only aid.”    Commonwealth v. Knox, 50 A.3d 732, 739 (Pa.

Super. 2012) (citation and internal quotations omitted).          Further, as our

Supreme Court has held, “[A] conviction for murder of the third degree is

supportable under complicity theory where the Commonwealth proves the

accomplice acted with the culpable mental state required of a principal actor,

namely, malice.     In other words, the Pennsylvania Crimes Code legally,

logically, and rationally imposes accomplice liability for depraved heart

murder.”   Commonwealth v. Roebuck, 32 A.3d 613, 624 (Pa. 2011). As

the Crimes Code instructs:

      When causing a particular result is an element of an offense, an
      accomplice in the conduct causing such result is an accomplice in
      the commission of that offense, if he acts with the kind of
      culpability, if any, with respect to that result that is sufficient for
      the commission of the offense.

18 Pa.C.S.A. § 302(d) (culpability of accomplice).

      We find the evidence presented at trial was sufficient to establish that

Appellant committed the third-degree murder of the victim with malice.

Appellant and Colon approached the victim. Appellant shot twice before his

gun jammed, at which time Colon delivered the fatal shot to the back of the

victim’s head. Appellant’s actions were part of the same criminal episode in

which he worked in concert with Colon to shoot and ultimately kill the victim,


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and did so with malice.      The evidence was sufficient for the jury to find

beyond a reasonable doubt that Appellant acted with malice and reckless

disregard of the fact that his actions could cause death or serious injury.

Further, the fact that Appellant did not deliver the fatal shot does not

absolve Appellant from culpability for third-degree murder.      Our Supreme

Court rejected a similar claim of insufficiency based on an appellant’s

assertion that it was one of his companions and not he who fired a fatal

shot.    Commonwealth v. Wilson, 426 A.2d 575 (Pa. 1981).           The Court

determined that the evidence was sufficient to support a conviction for third-

degree murder.       “[R]egardless of who actually fired the fatal bullet,

appellant and his companions acted in concert and collusion.       Appellant is

thus responsible for the crime as an accomplice . . . even if the shot in

question was not fired from his gun.” Id. at 576 (citations omitted).

        Viewed in the light most favorable to the Commonwealth as verdict

winner, and recognizing Appellant’s role as an accomplice to Colon, the

Commonwealth presented evidence sufficient to establish Appellant’s guilt of

third-degree murder. Appellant’s first issue fails.

        In the second issue set forth in his statement of questions presented,

Appellant contends the trial court committed reversible error by delivering a

jury instruction on third-degree murder. As this Court has explained:

        [W]hen evaluating the propriety of jury instructions, this Court
        will look to the instructions as a whole, and not simply isolated
        portions, to determine if the instructions were improper. We
        further note that, it is an unquestionable maxim of law in this

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      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Antidormi, 84 A.3d at 754 (quoting Commonwealth v. Trippett, 932 A.2d

188, 200 (Pa. Super. 2007) (citation omitted)).

      Although Appellant’s issue as framed purportedly challenges the jury

instructions, his argument focuses instead on the trial court’s determination

that Appellant’s third-degree murder conviction was justified on a theory of

accomplice liability.   Appellant’s Brief at 15-17.     Further, his argument is

devoid of any citation to legal authority, in violation of Pa.R.A.P. 2119(a)

(argument shall be divided into as many parts as there are questions to be

argued and shall have at the head of each part the particular point treated

therein, “followed by such discussion and citation of authorities as a deemed

pertinent.”).

      In his statement of questions, Appellant’s second issue claims the trial

court erred in instructing the jury on third-degree murder. In the argument

section of his brief, he sets forth a different issue, i.e., “Appellant’s actions in

this case do not make him an accomplice in the death of the victim.”

Appellant’s Brief at 15.    He then embarks on a three-page discussion of

accomplice liability leading to his conclusion that the Commonwealth failed

to prove Appellant guilty of murder on a theory of accomplice liability.         As

such, Appellant has waived his jury instruction argument and has instead


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continued his first argument, contending the evidence was insufficient to

sustain his conviction of third-degree murder. As already determined, the

evidence was sufficient to support his conviction. Appellant’s second issue,

even if not waived, fails for lack of merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2016




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