J-A19006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                             Appellee

                        v.

EUGENE JAMES MCCARTHY, JR.

                             Appellant                No. 11 WDA 2014


          Appeal from the Judgment of Sentence November 18, 2013
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0011401-2012


BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 15, 2016

        Appellant Eugene James McCarthy appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his jury trial convictions for robbery (inflicts serious bodily injury),1

conspiracy to commit robbery (inflicts serious bodily injury),2 and third-

degree murder.3 After careful review, we affirm.

        On August 7, 2012, Appellant, Quintelle Rankin, and Rankin’s nephew,

Corey Estes, were driving around in Appellant’s car looking for a marijuana

source. N.T., 8/5-16/2013, (“N.T.”) at 169, 176, 178, 179. While they were

____________________________________________


1
    18 Pa.C.S. § 3701(a)(i).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 2502(c).
J-A19006-15



in the car, Appellant, who was driving near the Brinton Manor Apartment

area said that it looked “like there was licks up there.” N.T. at 183. Estes

testified that “licks” is street slang for “robbery.”   N.T. at 184.    Appellant

parked the car and the trio began to walk around looking for people with

marijuana. N.T. at 187, 1372.

      Appellant and his comrades encountered two males sitting on the

steps of one of the apartment buildings.      N.T. at 188, 1373.       One of the

males, Brandon Johns (“Victim”), said that he had marijuana and the trio

followed him to a nearby building. N.T. at 190-91, 1374. When the four of

them were in the building hallway, Victim sat on the steps, pulled out a bag

of marijuana and a scale, and began to weigh out some marijuana for

$20.00 per gram, as they had discussed. N.T. at 192-94, 1372. Appellant

proceeded to grab the entire bag of marijuana and said: “You might as well

give me all the shit.” N.T. at 197. Rankin and Victim then produced guns

and exchanged gunfire.      N.T. 198-205, 1426.         While he was shooting,

Rankin closed his eyes while firing his gun at Victim’s chest and shoulder

area. N.T. at 1425. Victim died from multiple gunshot wounds to the neck

and chest. N.T. at 78.

      On August 19, 2013, a jury convicted Appellant of the aforementioned

crimes and acquitted Appellant of second-degree murder and tampering with




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evidence.4    On November 18, 2013, the trial court sentenced Appellant to

thirteen (13) to twenty-six (26) years’ incarceration.5

       On December 2, 2013, Appellant filed a post-sentence motion, which

the court denied the next day.6          On December 31, 2013, Appellant timely

filed a notice of appeal.       Both Appellant and the trial court complied with

Pa.R.A.P. 1925.7

       Appellant raises the following issues for our review:

          1. WAS APPELLANT ERRONEOUSLY CONVICTED OF
          THIRD[-]DEGREE MURDER AND OF ROBBERY VIA
          SERIOUS BODILY INJURY INFLICTED OR THREATENED
          GIVEN THAT THE COMMONWEALTH FAILED TO PROVE,
          BEYOND A REASONABLE DOUBT, THAT APPELLANT’S CO-
          DEFENDANT, QUINTELLE RANKIN, DID NOT ACT
____________________________________________


4
  The same jury convicted Rankin of second-degree murder, robbery (serious
bodily injury), criminal conspiracy (robbery), and carrying a firearm without
a license and acquitted Rankin of first-degree murder.
5
  The court sentenced Appellant consecutively to ten (10) to twenty (20)
years’ incarceration for third-degree murder and three (3) to six (6) years’
incarceration for conspiracy to commit robbery. The court imposed no
further penalty for Appellant’s robbery conviction.
6
  November 28, 2013 fell on Thanksgiving Day. Because Appellant filed his
post-sentence motion on the following Monday, we consider his motion
timely. See 1 Pa.C.S. § 1908.
7
   On January 2, 2014, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
January 23, 2014, Appellant filed a motion for an extension of time to file his
concise statement, which the court granted on January 29, 2014. Appellant
filed an additional motion for an extension of time to file his statement on
February 24, 2014, which the court again granted. On April 7, 2014,
Appellant timely filed his Pa.R.A.P. 1925(b) statement. The court filed a
Pa.R.A.P. 1925(a) opinion on July 18, 2014.



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       JUSTIFIABLY WHEN HE SHOT AND KILLED THE DECEDENT,
       BRANDON JOHNS (SUCH ACTION BEING JUSTIFIABLE
       SINCE IT WAS TAKEN IN DEFENSE OF HIMSELF AND OF
       APPELLANT)?

       2. WAS APPELLANT ERRONEOUSLY CONVICTED OF THIRD
       DEGREE MURDER GIVEN THAT THE COMMONWEALTH
       FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT
       APPELLANT WAS VICARIOUSLY LIABLE FOR BRANDON
       JOHNS’ DEATH UNDER EITHER THE RULE OF ACCOMPLICE
       LIABILITY OR THE RULE OF CONSPIRATORIAL LIABILITY,
       GIVEN THAT (A) APPELLANT DID NOT ACT WITH
       RECKLESSNESS OR EXTREME INDIFFERENCE TO THE
       VALUE OF HUMAN LIFE, AS WAS NECESSARY IN ORDER
       TO CONVICT HIM OF THIRD DEGREE MURDER UNDER THE
       RULE OF ACCOMPLICE LIABILITY; (B) THE RULE OF
       CONSPIRATORIAL LIABILITY DID NOT SURVIVE THE
       ENACTMENT OF THE CRIMES CODE; AND (C) EVEN IF
       CONSPIRATORIAL LIABILITY WAS A VIABLE OPTION,
       QUINTELLE RANKIN’S FATAL SHOOTING OF JOHNS WAS
       NOT FORESEEABLE TO APPELLANT SINCE APPELLANT WAS
       UNAWARE, SO FAR AS THE EVIDENCE INDICATED, THAT
       RANKIN WAS EVEN ARMED?

       3. WAS APPELLANT (A) ERRONEOUSLY CONVICTED OF
       ROBBERY VIA SERIOUS BODILY INJURY INFLICTED OR
       THREATENED GIVEN THAT THE COMMONWEALTH FAILED
       TO PROVE, BEYOND A REASONABLE DOUBT, THAT
       APPELLANT WAS VICARIOUSLY LIABLE FOR RANKIN’S
       FATAL SHOOTING OF JOHNS (APPELLANT, AS NOTED,
       BEING UNAWARE THAT RANKIN WAS ARMED), AND (B)
       ERRONEOUSLY CONVICTED OF CONSPIRACY TO COMMIT
       ROBBERY VIA SERIOUS BODILY INJURY INFLICTED OR
       THREATENED GIVEN THAT THE COMMONWEALTH FAILED
       TO PROVE, BEYOND A REASONABLE DOUBT, THAT THE
       PARTIES AGREED TO COMMIT A CRIME AND, IF THEY DID,
       THAT THAT CRIME WAS ROBBERY VIA SERIOUS BODILY
       INJURY INFLICTED OR THREATENED RATHER THAN
       ROBBERY VIA PHYSICAL FORCE?

       4. WERE APPELLANT’S DUE PROCESS RIGHTS UNDER THE
       FOURTEENTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION   AND    ARTICLE  I §   9   OF  THE
       PENNSYLVANIA CONSTITUTION VIOLATED WHEN HE WAS

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         CONVICTED OF THIRD DEGREE MURDER, ROBBERY VIA
         SERIOUS BODILY INJURY INFLICTED, AND CONSPIRACY
         TO COMMIT ROBBERY VIA SERIOUS BODILY INJURY
         INFLICTED OR THREATENED BASED ON LEGALLY
         INSUFFICIENT EVIDENCE?

Appellant’s Brief at 3-4.

      In all of his issues, Appellant challenges the sufficiency of the

evidence. When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         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 [trier] 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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).




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      In his first issue, Appellant claims the Commonwealth failed to present

sufficient evidence for the jury to find, beyond a reasonable doubt, that

Rankin did not act in self-defense when he shot Victim. We disagree.

      Pennsylvania’s Crimes Code governs self-defense and provides, in

relevant part:

         § 505. Use of force in self-protection

         (a) Use of force justifiable for protection of the
         person.--The use of force upon or toward another person
         is justifiable 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.

         (b) Limitations on justifying necessity for use of
         force.—
                             *    *   *

            (2) The use of deadly force is not justifiable under this
            section unless the actor believes that such force is
            necessary to protect himself against death, serious
            bodily injury, kidnapping or sexual intercourse
            compelled by force or threat; nor is it justifiable if:

                 (i) the actor, with the intent of causing death or
                 serious bodily injury, provoked the use of force
                 against himself in the same encounter; or

                 (ii) the actor knows that he can avoid the necessity
                 of using such force with complete safety by
                 retreating, except the actor is not obliged to retreat
                 from his dwelling or place of work, unless he was the
                 initial aggressor or is assailed in his place of work by
                 another person whose place of work the actor knows
                 it to be.

18 Pa.C.S. § 505.




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      To establish a claim of self-defense, a defendant must prove three

elements:   “(a) [that the defendant] reasonably believed that he was in

imminent danger of death or serious bodily injury and that it was necessary

to use deadly force against the victim to prevent such harm; (b) that the

defendant was free from fault in provoking the difficulty which culminated in

the slaying; and (c) that the [defendant] did not violate any duty to retreat.”

Commonwealth        v. Mouzon, 53 A.3d 738, 740-41 (Pa.2012) (internal

footnotes omitted). Although the burden is on the Commonwealth to prove

beyond a reasonable doubt that the defendant was not acting in self-

defense, “before the defense is properly in issue, there must be some

evidence, from whatever source, to justify such a finding.” Id. at 741.

         To claim self-defense, the defendant must be free from
         fault in provoking or escalating the altercation that led to
         the offense, before the defendant can be excused from
         using deadly force.     Likewise, the Commonwealth can
         negate a self-defense claim by proving the defendant used
         more force than reasonably necessary to protect against
         death or serious bodily injury.

Commonwealth v. Smith, 97 A.3d 782, 788 (Pa.Super.2014) (internal

citations and emphasis omitted).

      Appellant contends that the Commonwealth offered no evidence to

show that Appellant or his co-felons planned to kill Victim.     He maintains

that Appellant’s tussle with Victim over Victim’s firearm did not constitute a

threat that would qualify as provoking or escalating the altercation that led

to the offense. Further, he claims that, although Rankin brandished a gun


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J-A19006-15


prior to Victim’s firing the first shot, Rankin’s gun did not provoke Victim

because Victim could not see Rankin’s gun.

      Here, both Rankin and Estes testified that Victim fired the first shot.

Rankin testified that Victim started shooting for an unknown reason, while

Appellant was giving him money for the marijuana, and that Rankin pulled

out his gun in self-defense.   N.T. at 1376.   Estes testified, however, that

Rankin and Appellant intended to rob Victim, that Rankin pulled out his gun

before Victim pulled out his gun, and that immediately after Rankin

brandished his gun, Victim told Appellant that he could have all of the

marijuana. N.T. at 203. Rankin also testified that he did not believe Victim

could see that Rankin was brandishing a gun at the time. N.T. at 202.

      When viewing all evidence in the light most favorable to the

Commonwealth as verdict winner, there was sufficient evidence for the jury

to find that Rankin was not free from fault in provoking or escalating the

altercation that led to Victim’s death. The jury, who was free to believe all,

part, or none of the evidence, chose to believe part of Estes’ testimony and

found that Rankin was not free from fault such that he was excused from

using deadly force.    The evidence that Rankin brandished a gun while

Appellant was demanding Victim give him his marijuana, that Victim gave

Appellant his marijuana immediately after Rankin brandished the gun, and

that Rankin shot Victim seven times supports the jury’s findings. Thus, the

Commonwealth presented sufficient evidence for the jury to find, beyond a


                                    -8-
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reasonable doubt, that Rankin did not act in self-defense when he shot and

killed Victim. See Hansley, supra; Smith, supra.

         For purposes of disposition, we will next address Appellant’s third

issue.

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

for his robbery (inflicts serious bodily injury) and his conspiracy to commit

robbery (inflicts serious bodily injury) convictions. He claims that, because

the Commonwealth did not present evidence that Appellant knew Rankin

was armed, there was not sufficient evidence for the jury to find that he was

an accomplice to robbery (inflicts serious bodily injury) or to find that he was

a co-conspirator to such a crime. He claims the evidence at most supported

a conviction for theft or robbery (physical force) and conspiracy to commit

such lesser crime. Again, we disagree.

         Appellant was convicted under the following statute:

           § 3701. Robbery

           (a) Offense defined.--

              (1) A person is guilty of robbery if, in the course of
              committing a theft, he:

                    (i) inflicts serious bodily injury upon another;

                    (ii) threatens another with or intentionally puts
                    him in fear of immediate serious bodily injury;

                    (iii) commits or threatens immediately to commit
                    any felony of the first or second degree;




                                       -9-
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                     (iv) inflicts bodily injury upon another or
                     threatens another with or intentionally puts him in
                     fear of immediate bodily injury;

                     (v) physically takes or removes property from the
                     person of another by force however slight; or

18 Pa.C.S. § 3701.

          To sustain a conviction of robbery, the Commonwealth
          must establish beyond a reasonable doubt that [a
          defendant], in the course of committing a theft, inflicted
          serious bodily injury upon [a victim], or threatened him
          with or intentionally put him in fear of immediate serious
          bodily injury. 18 [Pa.C.S.] § 3701(a). The element “in the
          course of committing a theft” is proven if the
          Commonwealth proves that the offense occurred during an
          attempt to commit theft or in flight after the attempt or
          commission. 18 [Pa.C.S.] § 3701(a)(2).… A person
          commits a theft if he or she “unlawfully takes... movable
          property of another with intent to deprive him thereof.” 18
          [Pa.C.S.] § 3921(a).

Commonwealth v. Ennis, 574 A.2d 1116, 1119 (Pa.Super.1990).

        The jury found Appellant guilty of robbery under § 3701(a)(1)(i) based

on the theory of accomplice liability.8 The Crimes Code provides, in relevant

part:

          § 306. Liability for conduct of another; complicity

          (a) General rule.--A person is guilty of an offense if it is
          committed by his own conduct or by the conduct of
          another person for which he is legally accountable, or
          both.
____________________________________________


8
   The trial court instructed the jury on theories of direct liability, accomplice
liability and co-conspirator liability. It is only necessary for us to examine
the theory of accomplice liability to determine whether the Commonwealth
presented sufficient evidence to support Appellant’s robbery conviction.



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        (b) Conduct of another.--A person is legally accountable
        for the conduct of another person when:

                            *   *     *

           (3) he is an accomplice of such other person in the
           commission of the offense.

        (c) Accomplice defined.--A person is an accomplice of
        another person in the commission of an offense if:

           (1) with the intent of promoting or facilitating the
           commission of the offense, he:

                                *     *      *

                 (ii) aids or agrees or attempts to aid such other
                 person in planning or committing it; or

           (2) his conduct is expressly declared by law to establish
           his complicity.

        (d) Culpability of accomplice.--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.

                                *     *      *

        (g) Prosecution of accomplice only.--An accomplice
        may be convicted on proof of the commission of the
        offense and of his complicity therein, though the person
        claimed to have committed the offense has not been
        prosecuted or convicted or has been convicted of a
        different offense or degree of offense or has an immunity
        to prosecution or conviction or has been acquitted.

18 Pa.C.S. § 306 (emphasis added).




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J-A19006-15


      Here, the Commonwealth presented evidence that Appellant unlawfully

took Victim’s marijuana with the intent to deprive him thereof and that

Rankin shot and killed Victim during the commission of the theft.        Thus,

there was sufficient evidence for the jury to convict Rankin of robbery under

§ 3701(a)(1)(i).

      Appellant maintains that because the Commonwealth did not present

evidence that Appellant was aware that Rankin had a gun, it failed to

present evidence of the requisite culpability to be an accomplice to §

3701(a)(1)(i) robbery. However, the only mens rea this crime required was

the intent to commit the underlying theft.     The Commonwealth presented

evidence that Appellant aided Rankin in committing the robbery. Although

Rankin pulled the trigger that caused the serious bodily injury (death) to

Victim, § 3701(a)(1)(i) does not require that the perpetrator intend to inflict

serious bodily injury, it only requires that the perpetrator inflict serious

bodily injury. The only mens rea required for this crime was the intent to

steal Victim’s marijuana, and the Commonwealth presented evidence of this

intent. Thus, the Commonwealth presented sufficient evidence for the jury

to find Appellant guilty of § 3701(a)(1)(i) robbery under the theory of

accomplice liability.

      Next, Appellant challenges the sufficiency of the evidence for his

conspiracy conviction. Our legislature defines criminal conspiracy as follows:

         (a) Definition of conspiracy.--A person is guilty of
         conspiracy with another person or persons to commit a

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J-A19006-15


       crime if with the intent of promoting or facilitating its
       commission he:

          (1) agrees with such other person or persons that they
          or one or more of them will engage in conduct which
          constitutes such crime or an attempt or solicitation to
          commit such crime; or

          (2) agrees to aid such other person or persons in the
          planning or commission of such crime or of an attempt
          or solicitation to commit such crime.

       (b) Scope of conspiratorial relationship.--If a person
       guilty of conspiracy, as defined by subsection (a) of this
       section, knows that a person with whom he conspires to
       commit a crime has conspired with another person or
       persons to commit the same crime, he is guilty of
       conspiring with such other person or persons, to commit
       such crime whether or not he knows their identity.

                               *     *      *

       (e) Overt act.--No person may be convicted of conspiracy
       to commit a crime unless an overt act in pursuance of such
       conspiracy is alleged and proved to have been done by him
       or by a person with whom he conspired.

                               *     *      *

       (g) Duration of conspiracy.--For purposes of 42 Pa.C.S.
       § 5552(d) (relating to commission of offense):

       (1) conspiracy is a continuing course of conduct which
       terminates when the crime or crimes which are its object
       are committed or the agreement that they be committed is
       abandoned by the defendant and by those with whom he
       conspired;

       (2) such       abandonment is presumed if neither the
       defendant    nor anyone with whom he conspired does any
       overt act     in pursuance of the conspiracy during the
       applicable   period of limitation; and




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           (3) if an individual abandons the agreement, the
           conspiracy is terminated as to him only if and when he
           advises those with whom he conspired of his abandonment
           or he informs the law enforcement authorities of the
           existence of the conspiracy and of his participation therein.

18 Pa.C.S. § 903.

        Here, the Commonwealth presented evidence that Appellant acted

together with Rankin with the intent of unlawfully depriving Victim of his

marijuana. Appellant made an overt act by demanding Victim’s marijuana

and Rankin inflicted serious bodily injury (for which no intent was required),

namely death, in the furtherance of the conspiracy to steal the marijuana.

Appellant made no attempt to abandon the agreement before Victim was

dead.     Thus, the Commonwealth presented sufficient evidence to support

Appellant’s conviction of conspiracy to commit § 3701(a)(1)(i) robbery.

        Now we address Appellant’s second issue, in which he challenges the

sufficiency of the evidence for his conviction for third degree murder.

Murder is defined by statute as follows:

           2502. Murder

           (a) Murder of the first degree.--A criminal homicide
           constitutes murder of the first degree when it is committed
           by an intentional killing.

           (b) Murder of the second degree.--A criminal homicide
           constitutes murder of the second degree when it is
           committed while defendant was engaged as a principal
           or an accomplice in the perpetration of a felony.[9]
____________________________________________


9
    The Crimes Code defines “perpetration of a felony” as:
(Footnote Continued Next Page)


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          (c) Murder of the third degree.--All other kinds of
          murder shall be murder of the third degree. Murder of the
          third degree is a felony of the first degree.

18 Pa.C.S. § 2502 (emphasis added).

      To consider a killing murder, malice must be present:

          At the common law murder is described to be, when a
          person of sound memory and discretion unlawfully kills any
          reasonable creature in being and under the peace of the
          Commonwealth, with malice aforethought, expressed or
          implied. The distinguishing criterion of murder is malice
          aforethought. But it is not malice in its ordinary
          understanding alone, a particular ill-will, a spite or a
          grudge. Malice is a legal term, implying much more. It
          comprehends not only a particular ill-will, but every case
          where there is wickedness of disposition, hardness of
          heart, cruelty, recklessness of consequences, and a mind
          regardless of social duty, although a particular person may
          not be intended to be injured. Murder, therefore, at
          common law embraces cases where no intent to kill
          existed, but where the state or frame of mind termed
          malice, in its legal sense, prevailed.

Commonwealth v. Drum, 58 Pa. 9, 15 (1868).

      For second degree murder, “[t]he malice or intent to commit the

underlying crime is imputed to the killing to make it second-degree murder,

                       _______________________
(Footnote Continued)


          The act of the defendant in engaging in or being an
          accomplice in the commission of, or an attempt to commit,
          or flight after committing, or attempting to commit
          robbery, rape, or deviate sexual intercourse by force or
          threat of force, arson, burglary or kidnapping.

18 Pa.C.S. § 2502(d) (emphasis added).




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regardless of whether the defendant actually intended to physically harm the

victim.”       Commonwealth        v.    Lambert,   795    A.2d   1010,   1022

(Pa.Super.2002), appeal denied, 805 A.2d 521 (Pa.2002).

           When an actor engages in one of the statutorily
           enumerated felonies and a killing occurs, the law, via the
           felony-murder rule, allows the finder of fact to infer the
           killing was malicious from the fact the actor was
           engaged in a felony of such a dangerous nature to
           human life because the actor, as held to the standard of a
           reasonable man, knew or should have known that
           death might result from the felony….

           In Commonwealth v. Melton, 178 A.2d 728, 731
           ([Pa.]1962), cert. denied, 371 U.S. 851, 83 S.Ct. 93, 9
           L.Ed.2d 87 (1962), our Supreme Court explained that not
           only the killer, but all participants in a felony, including
           the getaway driver, are equally guilty of felony murder
           when a killing by a felon occurs.

           The statute defining second degree murder does not
           require that a homicide be foreseeable; rather, it is only
           necessary that the accused engaged in conduct as a
           principal or an accomplice in the perpetration of a
           felony. Whether evidence sufficiently indicates that a
           killing was in furtherance of a predicate felony can be a
           difficult question. Commonwealth v. Laudenberger, 715
           A.2d 1156, 1160 (Pa.Super.1998). The question of
           whether the killing was in furtherance of the conspiracy is
           a question of proof for the jury to resolve.
           [Commonwealth v. Middleton, 467 A.2d 841, 848
           (Pa.Super.1983)]. It does not matter whether the
           appellant anticipated that the victim would be killed
           in furtherance of the conspiracy. Id. Rather, the fact
           finder determines whether the appellant knew or should
           have known that the possibility of death accompanied a
           dangerous undertaking. [Id.]

Lambert, 795 A.2d at 1023 (some internal citations omitted) (emphasis

added).


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      “In adjudging a felony-murder, it is to be remembered at all times that

the thing which is imputed to a felon for a killing incidental to his felony is

malice and not the act of killing.” Commonwealth v. Redline, 137 A.2d

472, 476 (Pa.1958) (emphasis in original). “[I]t is the general rule of law

that a person may not be held criminally responsible for a killing unless the

homicide were either actually or constructively committed by him; and, in

order to be his act, it must be committed by his own hand, or by someone

acting in concert with him, or in furtherance of a common design or

purpose.” Id. at 479.

         A person may be convicted of third-degree murder where
         the murder is neither intentional nor committed during the
         perpetration of a felony, but contains the requisite malice
         aforethought. Malice consists of a wickedness of
         disposition, hardness of heart, cruelty, recklessness of
         consequences, and a mind regardless of social duty,
         although a particular person may not be intended to be
         injured.

Commonwealth v. Pigg, 571 A.2d 438, 441-42 (Pa.Super.1990), appeal

denied, 581 A.2d 571 (Pa.1990) (internal quotations and citations omitted).

         The elements of third degree murder, as developed by
         case law, are a killing done with legal malice but without
         specific intent to kill required in first degree murder. Malice
         is the essential element of third degree murder, and is the
         distinguishing factor between murder and manslaughter.

Commonwealth v. Cruz–Centeno, 668 A.2d 536, 539 (Pa.Super.1995).

appeal denied, 676 A.2d 1195 (Pa.1996).

         [E]vidence 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

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J-A19006-15


          by the statute as intentional murder. The act sufficient for
          third degree is still a purposeful one, committed with
          malice, which results in death—clearly, one can conspire to
          such an intentional act.

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa.2013), cert. denied sub

nom. Best v. Pennsylvania, 134 S. Ct. 2314, 189 L. Ed. 2d 192 (2014)

(emphasis in original).

       Here, Appellant was convicted of conspiracy to commit robbery

(serious bodily injury inflicted), robbery (serious bodily injury inflicted), and

third-degree murder, and Appellant’s co-conspirator was convicted of

conspiracy to commit robbery, robbery, carrying a firearm without a license,

and second-degree murder. The jury acquitted Appellant of second-degree

murder.

       The requisite malice for second-degree murder can be inferred by the

underlying felonious act, and Appellant was convicted of robbery (inflicts

serious bodily injury), which is an enumerated felony in the statute. Thus,

the jury could have convicted him of second-degree murder. See Lambert,

supra.

       Appellant claims that because the Commonwealth did not prove

Appellant was aware of his co-conspirator’s weapon,10 it did not establish

that Appellant acted with malice.              Appellant contends that accomplice

____________________________________________


10
   We need not now determine whether the Commonwealth presented
sufficient evidence that Appellant knew his co-conspirator was armed.



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liability does not render him culpable for a homicide that results from a

robbery in which he was an accomplice if he was not aware that his

accomplice was armed.          Appellant quotes Commonwealth v. Knox, 105

A.3d 1194 (Pa.2014), for the following proposition:

          After the passage of the Crimes Code, status as an
          accomplice relative to some crimes within a larger criminal
          undertaking or episode no longer per se renders a
          defendant liable as an accomplice for all other crimes
          committed. Rather, closer, offense-specific analysis of
          intent and conduct is required.

Knox, 105 A.3d at 1197; Appellant’s Brief at 33. Appellant, however, omits

the following attendant footnote:          “There are statutory exceptions to this

principle, most notably, the felony-murder rule. See 18 Pa.C.S. § 2502(b).”

Id. at 1197, n. 3.11

       Although the jury did not convict Appellant of second-degree murder,

it convicted him of robbery.          As a result, the Commonwealth presented

sufficient evidence for the jury to conclude that Appellant exhibited malice

by committing a robbery during which a victim was recklessly killed.          See

____________________________________________


11
   In footnote 13, the dissent notes that the crime of conspiracy is not an
enumerated felony in the Crimes Code for purposes of the felony-murder
rule. In addition to conspiracy, however, a jury convicted Appellant, either
under direct or accomplice liability, of robbery, inflicts serious bodily injury,
which is an enumerated felony. The robbery statute does not require that a
felon intend to inflict serious bodily injury on another; it only requires that
serious bodily injury be inflicted while one is in the course of committing a
theft. Because Appellant’s accomplice killed Victim while Appellant was
committing an enumerated felony, it is of no moment whether death was the
natural and probable consequence of Appellant’s robbery.



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Lambert, supra.         The fact that the jury acquitted Appellant of second-

degree murder does not mean it did not find the requisite malice for the

offense.12

       The trial court instructed the jury as follows:

          A person who kills must act with malice to be guilty of any
          degree of murder.

          The word “malice,” as I am using it, has a special legal
          meaning. It does not mean simply hatred, spite or ill will.
          Malice is a shorthand way of referring to any of the three
          different mental states that the law regards as being bad
          enough to make a killing murder.

          The type of malice differs for each degree of murder.
          Thus, for murder of the first degree, a killing is with malice
          if the perpetrator acts with: First, an intent to kill, or as I
          will later explain in my definition of first-degree murder,
          the killing is willful, deliberate and premeditated.

          For murder of the second degree or felony murder, as
          second-degree murder is commonly called, a killing is with
          malice if the perpetrator engages in one of certain
          enumerated felonies and a killing occurs, since the law,
          through the felony murder rule, allows the finder of fact to
          infer that the killing was malicious from the fact that the
          actor was engaged in a felony of such a dangerous nature
          to human life that the perpetrator, as held to the standard
          of a reasonable man, knew or should have known that
          death might result from the felony.

____________________________________________


12
   “[A]n acquittal cannot be interpreted as a specific finding in relation to
some of the evidence, and that even where two verdicts are logically
inconsistent, such inconsistency alone cannot be grounds for a new trial or
for reversal. Furthermore, the ‘special weight’ afforded the fact of an
acquittal plays no role in the analysis of inconsistent verdicts, because, by
definition, one of the verdicts will always be an acquittal.” Commonwealth
v. Miller, 35 A.3d 1206, 1213 (Pa.2012).



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        For murder of the third degree, a killing is with malice if
        the perpetrator’s actions show his wanton and willful
        disregard of an unjustified and extremely high risk that his
        conduct would result in death or serious bodily injury to
        another. In this form of malice the Commonwealth need
        not prove that the perpetrator specifically intended to kill
        another.

        The Commonwealth must prove, however, that he took
        action while consciously; that is knowingly, disregarding
        the most serious risk he was creating and that by his
        disregard of that risk he demonstrated his extreme
        indifference to the value of human life.

                                *      *     *

        You may find that [Appellant] was acting with malice if you
        are satisfied beyond a reasonable doubt that he and the
        other Defendants were partners in committing the robbery.
        Because robbery is a crime inherently dangerous to human
        life, there does not have to be any other proof of malice.

N.T., 8/5-16/2013, at 1699-1701, 1704.

     At sentencing, the court noted:

        I think the evidence presented and the jury’s verdict
        supports the view of this case that while [Appellant]
        agreed to get involved in an armed robbery, he did not
        expect his co-defendant to execute [Victim] as he did.
        And we are to sentence defendants on what their legally
        responsible conduct is.

        And there is no other reason the court can think of why the
        jury would come back on murder of the third degree on
        [Appellant], as opposed to murder in the second degree,
        that they didn’t feel that to some degree Mr. Rankin even
        acted beyond what [Appellant] expected, or what was
        planned on.

        I think [Appellant] is entitled to the benefit of the
        differences in the verdict.

Sentencing Transcript, 11/18/2013, at 69-70.

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     To sustain a verdict for third-degree murder, the Commonwealth

needed to present sufficient evidence that Appellant acted with malice and

that his actions resulted in the death of another person.      See Cruz–

Centeno, supra.

     Malice is a “wickedness of disposition, hardness of heart, cruelty,

recklessness of consequences, and a mind regardless of social duty”. Drum,

supra. Malice is imputed into a second-degree murder conviction when a

defendant commits certain enumerated felonies because those certain

enumerated offenses indicate the requisite recklessness of consequences

and mind regardless of social duty of which malice consists. Just because

the jurors did not convict Appellant of second-degree murder, as they could

have done, does not mean Appellant lacked the malice that resulted in this

robbery-induced homicide.   Because a homicide occurred while Appellant

was committing the enumerated offense of robbery, Appellant exhibited the

“wickedness of disposition, hardness of heart, cruelty, recklessness of

consequences, and… mind regardless of social duty” required to find malice

for purposes of third degree murder.   Thus, the Commonwealth presented

sufficient evidence for the jury to find, beyond a reasonable doubt, that

Appellant committed third-degree murder.




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       Accordingly, Appellant’s claims merit no relief.13

       Judgement of sentence affirmed.

      Judge Musmanno joins in the memorandum.

      President Judge Emeritus Bender files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/2016




____________________________________________


13
   Due to the disposition of Appellant’s first three claims, we need not
address his final claim.



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