J-S65036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DEVIN SMITH

                            Appellant                   No. 3579 EDA 2014


          Appeal from the Judgment of Sentence November 14, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010586-2013


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

MEMORANDUM BY JENKINS, J.:                              FILED MARCH 09, 2016

        Appellant Devin Smith appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas following his jury trial

conviction for murder of the third degree.1 We affirm.

        The trial court set forth the relevant facts of this appeal as follows:

           On February 8, 2013, sometime between 2:00 and 2:45
           p.m., [Appellant] punched and kicked Ramona Bell and
           slammed her onto the floor inside a house at 4731 Salem
           Street.    After Ms. Bell fell to the floor, [Appellant]
           continued to assault her. There were several other people
           inside this “crack house” when the assault occurred. The
           evidence established that [Appellant] was a drug dealer
           and Ms. Bell was a drug user. Keith Bennett, who lived in
           the house, allowed people to use his house to sell and use
           drugs, so long as they paid him.       According to one
____________________________________________


1
    18 Pa.C.S. § 2502(c).
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          eyewitness, [Appellant] assaulted Ms. Bell because she
          allegedly arranged for someone to steal his gun and drugs.
          Another eyewitness recalled [Appellant] being on a cell
          phone discussing whether or not he should “get rid of”
          everyone in the house. After [Appellant] ended his assault
          on Ms. Bell, he walked back and forth over her unconscious
          body and yelled: “She fucked up, tried to get me set up.
          She deserved it.      I just knocked her out.”        When
          [Appellant] was told that the victim needed medical
          assistance, he said: “No, she all right. She’s asleep right
          now.” Shortly thereafter, [Appellant] left the house.

                                       *       *   *

          [Ms. Bell] was pronounced dead at 7:55 p.m.

          Dr. Marlon Osbourne conducted an autopsy of decedent
          and testified at trial as an expert in forensic pathology. He
          concluded to a reasonable degree of medical certainty that
          the cause of Ramona Bell’s death was blunt head and
          chest trauma, and that the manner of death was homicide.
          Dr. Osbourne opined that decedent’s injuries were the
          result of a severe beating and that there were repeated
          blows to her head and other body parts.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 12, 2016, at 2-3

(citations to the record omitted).

       A jury convicted Appellant of third degree murder on July 10, 2014.

On November 14, 2014, the court sentenced Appellant to twenty (20) to

forty (40) years’ incarceration.        On December 15, 2014, Appellant filed a

timely notice of appeal.2        On December 24, 2014, the trial court ordered


____________________________________________


2
  Because December 14, 2015 fell on a Sunday, Appellant’s appeal was
timely.    See Commonwealth v. Leatherby, 116 A.3d 73, 86
(Pa.Super.2015) (“When computing the 30–day filing period ‘[if] the last day
(Footnote Continued Next Page)


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Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On January 12, 2015, Appellant timely filed

a concise statement, but mislabeled the statement “Post Sentence Motions.”3

      Appellant raised the following issues in his erroneously labeled

statement:

          1. There was insufficient evidence presented at trial for
             the jury to render Devin Smith guilty of third degree
             murder.

          2. That the fact witnesses presented had all recanted their
             testimony thus rendering their credibility unreliable and
             not suitable for presentation to the jury.

Appellant’s “Post Sentence Motions,” filed January 12, 2015 (verbatim).

      Appellant raises the following issue in his brief:

          [WHETHER   THERE    WAS]   SUFFICIENT  EVIDENCE
          PRESENTED AT TRIAL OF THIS MATTER TO PROVE THAT
                       _______________________
(Footnote Continued)

of any such period shall fall on Saturday or Sunday ... such day shall be
omitted from the computation.’ 1 [Pa.C.S.] § 1908.”).
3
  On April 24, 2015, the trial court filed an opinion that deemed all of
Appellant’s issues waived for failure to file a Pa.R.A.P. 1925(b) statement.
While the trial court was correct that a complete failure to file, or failure to
timely file, a Pa.R.A.P. 1925(b) statement would result in waiver of
Appellant’s claims on appeal, a finding of waiver does not end the trial
court’s analysis or require it to ignore the issues raised. Commonwealth v.
Thompson, 39 A.3d 335, 341 (Pa.Super.2012). “[If] counsel fails to file a
Rule 1925(b) statement before the trial court files a Rule 1925(a) opinion,
the opinion should note the ineffectiveness of counsel, permit counsel to file
a statement nunc pro tunc and address the issues raised in a subsequent
Rule 1925(a) opinion.” Id.       We remanded to the trial court for the filing of
a Pa.R.A.P. 1925(a) opinion addressing the issues raised in Appellant’s
mislabeled concise statement, and the court complied.




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         [APPELLANT] WAS THE PARTICIPANT IN THE ASSAULT
         AND SUBSEQUENT DEATH OF RAMONA BELL[?]

Appellant’s Brief at 5.

      Appellant attempts to challenge the sufficiency of the evidence for his

third degree murder conviction. He claims that the jury convicted him based

on conjecture and not on sufficient 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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     Appellant was convicted under the following statute:

        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.

        (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.

        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).




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      Here, Appellant waived his challenge to the sufficiency of the evidence

by filing a deficient concise statement of errors complained of on appeal.

      “If [an a]ppellant wants to preserve a claim that the evidence was

insufficient, then the 1925(b) statement needs to specify the element or

elements upon which the evidence was insufficient. This Court can then

analyze the element or elements on appeal.” Commonwealth v. Williams,

959 A.2d 1252, 1257 (Pa.Super.2008) (emphasis deleted). If the statement

does not specify the allegedly unproven elements, the sufficiency issue is

waived on appeal. Id. (noting that 1925(b) waiver is appropriate “despite

the lack of objection by an appellee and despite the presence of a trial court

opinion.”).

      The instant 1925(b) statement does not specify any unproven

elements. Therefore, Appellant has waived his sufficiency claim.


      Moreover, even if Appellant had preserved his issue, it is devoid of

merit.

      The trial court reasoned:

         [T]here was sufficient evidence to prove than an unlawful
         and malicious killing occurred.         The Commonwealth
         established that [Appellant] punched and kicked Ramona
         Bell, and then slammed her onto the floor. After she fell to
         the floor, [Appellant] continued to assault her.       After
         assaulting the victim, [Appellant] paced over her
         unconscious body and made statements acknowledging his
         guilt. At trial, the assistant medical examiner concluded to
         a reasonable degree of medical certainty that the cause of
         Ramona Bell’s death was blunt head and chest trauma,
         and that the manner of death was homicide. The assistant

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         medical examiner further concluded that the decedent’s
         injuries were sustained by a severe beating and that there
         were repeated blows to her head and other body parts…

                                   *    *    *

         [Appellant’s] actions grossly deviated from the standard of
         conduct that a reasonable person would observe under
         these circumstances.        To avenge an alleged theft,
         [Appellant] repeatedly punched and kicked the victim, and
         then slammed her to the floor, after which he continued to
         punch and kick her.         By engaging in such conduct,
         [Appellant] consciously disregarded an unjustified and
         extremely high risk that such conduct would cause
         irreparable damage to a vital body organ and ultimately
         lead to the victim’s death.

Trial Court Pa.R.A.P. Opinion, at 11-12.

      Thus, even if Appellant had preserved his sufficiency claim, we agree

with the trial court that his claim lacks merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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