J-S13038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

LARRY RODRIGUEZ

                             Appellant                 No. 720 EDA 2016


            Appeal from the Judgment of Sentence January 19, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0000744-2014

BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 29, 2017

        Appellant, Larry Rodriguez, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and his conviction for third degree murder.1      Appellant contends the

evidence was not sufficient to find him guilty of murder in the third degree.

We affirm.

        We adopt the facts as set forth in the trial court’s opinion. See Trial

Ct. Op., 9/15/16, at 2-12. On January 19, 2016, Appellant was sentenced to

eighteen to thirty-six years’ imprisonment.        Counsel filed a motion for

reconsideration of sentence on January 29, 2016. Appellant filed a pro se




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
J-S13038-17


notice of appeal on February 26, 2016.2       On March 14, 2016, Appellant’s

motion for reconsideration of sentence was denied.        Trial counsel filed a

motion to withdraw which was granted and present counsel was appointed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal and the trial court filed a responsive opinion.

      Appellant raises the following issue for our review:

         Was the evidence insufficient to sustain Appellant’s third
         degree murder conviction because the Commonwealth
         failed to prove that the killing was committed with malice
         as it is clear from the facts that the killing occurred in the
         heat of passion stemming from the victim’s larcenous
         behavior and the use of drugs and alcohol by both
         Appellant and the victim?

Appellant’s Brief at 3.3 Appellant contends

         that his conviction for third-degree murder cannot stand
         because the Commonwealth failed to prove that he acted
         with malice. It is his contention that the most he could
         have been convicted of is heat of passion voluntary
         manslaughter because the facts of the case show that the
         killing occurred while [A]ppellant was under the influence
         of drugs and alcohol and was under the belief that the


2
 The trial court noted that “[s]ince [Appellant’s] pro se notice of appeal was
docketed in the Superior Court, [counsel] did not file a notice of appeal.
See Trial Ct. Op. at 1; see also Commonwealth v. Cooper, 27 A.3d 994,
1007 (Pa. 2001), (holding “[t]he proper way to view the pro se appeal . . . is
as a premature appeal that was perfected upon the trial court’s proper
consideration and denial of the counseled post-sentence motions.”
3
  Appellant did not file a post-sentence motion challenging the sufficiency of
the evidence. However, a sufficiency of the evidence claim can be raised for
the first time on appeal. Pa.R.Crim.P. 606(A)(7); Commonwealth v.
Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011).




                                     -2-
J-S13038-17


        decedent and her cohorts were taking money and property
        from him.

                                *    *    *

           In the instant matter, the cumulative events of the
        evening in question and the decedent’s aggressive
        behavior constituted reasonable provocation. Appellant,
        the decedent, and associates of the decedent were
        drinking and doing drugs for hours prior to the incident.
        During that period of time, [A]ppellant believed that his
        personal belongings and money were being taken by the
        decedent and her associates. In addition, the decedent
        herself became violent as evidenced by the injuries to
        [A]ppellant which were observed by the police, who stated
        that the wounds to [A]ppellant were still fresh when they
        arrived.

            It is submitted that the Commonwealth failed to
        sufficiently disprove that [A]ppellant was seriously
        provoked to kill the victim out of an actual sudden and
        intense heat of passion. Even when viewed in the light
        most favorable to the Commonwealth, the evidence
        overwhelmingly demonstrates that a reasonable person
        faced with the same cumulative events and the same
        victim would have easily been provoked. The evidence
        also shows that Appellant actually believed that the victim,
        who significantly outweighed him intended to [sic] him and
        steal from him.       This mistaken belief, [A]ppellant’s
        subsequent impassioned utterances when the police
        arrived show that he actually acted in the heat of passion
        when he killed the victim. The successive nature of the
        evening’s events show the provocation led directly to the
        killing, and that [A]ppellant did not have the opportunity
        for cooling time.

Id. at 16, 20-21.

     “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

           [T]he critical inquiry on review of the sufficiency of the
        evidence to support a criminal conviction . . . does not


                                    -3-
J-S13038-17


        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict.

                                 *    *    *

            When reviewing the sufficiency of the evidence, an
        appellate court must determine whether the evidence, and
        all reasonable inferences deducible from that, viewed in
        the light most favorable to the Commonwealth as verdict
        winner, are sufficient to establish all of the elements of the
        offense beyond a reasonable doubt.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)

(citations and quotation marks omitted).

        The Commonwealth may sustain its burden of proving
        every element of the crime beyond a reasonable doubt by
        means of wholly circumstantial evidence. The facts and
        circumstances established by the Commonwealth need not
        be absolutely incompatible with the defendant’s innocence,
        but the question of any doubt is for the fact finder unless
        the evidence is so weak and inconclusive that, as a matter
        of law, no probability of fact can be drawn from the
        combined circumstances.

           The proper application of this standard requires us to
        evaluate the entire trial record, and all evidence actually
        received, in the aggregate and not as fragments isolated
        from the totality of the evidence. Our law is crystal clear
        that the trier of fact, in passing upon the credibility of
        witnesses and the weight of the evidence produced, is free
        to believe all, part, or none of the evidence presented.
        The Superior Court may not reweigh the evidence and
        substitute our judgment for that of the finder of fact. If
        the factfinder reasonably could have determined from the
        evidence adduced that all of the necessary elements of the
        crime were established, then that evidence will be deemed
        sufficient to support the verdict.




                                     -4-
J-S13038-17


Commonwealth v. Hopkins, 747 A.2d 910, 913–14 (Pa. Super. 2000)

(citations omitted).

        Section 2502(c) of the Crimes Code defines third degree murder:

           (c) Murder of the third degree.─All other kinds of
           murder shall be murder of the third degree.[4] Murder of
           the third degree is a felony of the first degree.

18 Pa.C.S. § 2502(c). In Commonwealth v. Marquez, 980 A.2d 145 (Pa.

Super. 2009) (en banc), this Court opined:

             Third-degree murder is defined [as] all other kinds of
           murder other than first degree murder or second degree
           murder.    The elements of third-degree murder, as
           developed by case law, are a killing done with legal malice.

               Malice exists where there is a particular ill-will, and also
               where there is a wickedness of disposition, hardness of
               heart, wanton conduct, cruelty, recklessness of
               consequences and a mind regardless of social duty.

Id. at 148 (citations and quotation marks omitted). “Malice is established

where an actor consciously disregard[s] an unjustified and extremely high

risk    that   his   actions   might   cause   death   or   serious   bodily   harm.”

4
    Murder in the first and second degree is defined as follows:

           (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.

18 Pa.C.S. § 2502(a)-(b).




                                         -5-
J-S13038-17


Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011) (citation

and quotation marks omitted). “Malice may be inferred by considering the

totality of the circumstances.” Commonwealth v. Dunphy, 20 A.3d 1215,

1219 (Pa. Super. 2011) (citation omitted).

      In fact, our Pennsylvania Supreme Court “has held on several

occasions that evidence of death by strangulation can be sufficient to

establish the requisite intent for first-degree murder.” Commonwealth v.

Martin, 101 A.3d 706, 718–19 (Pa. 2014), cert. denied, 136 S.Ct. 201

(2015). In Commonwealth v. Cooper, 941 A.2d 655 (Pa. 2007), the court

held that evidence of “death by manual strangulation was sufficient to

establish that the perpetrator acted maliciously and with a specific intent

to kill.” Id. at 662 (citation omitted and emphasis added).

      After careful consideration of the record, the parties’ briefs, and the

well-reasoned decision of the Honorable Rose Marie DeFino—Nastasi, we

affirm on the basis of the trial court’s decision. See Trial Ct. Op. at 13-17

(holding Appellant’s act of strangling the decedent constituted the requisite

malice for third degree murder). Accordingly, having discerned no error of

law, we affirm the judgment of sentence. See Ratsamy, 934 A.2d at 1235-

37.

      Judgment of sentence affirmed.




                                    -6-
J-S13038-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017




                          -7-
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    0061_Opinion
                   .,._                                                                                                                                                                                   Circulated 03/13/2017 11:53 AM




                                                                          IN THE COURT OF COMMON PLEAS OF PHILADELPHI
                                                                                                                    A

                                                                                                            CRIMINAL TRIAL DIVISION

                                         COMMONWEALTH OF PENNSYLVANIA                                                                                           CP-51-CR-0000744-2014

                                                          v.
                                                                                                                  FILED                                         720 EDA 2016

                                         LARRY RODRIGUEZ                                                            SEP 1 5 2016
                                                                                                                                                                           CP-51-CR-0000744-2014Comm          .
                                                                                                                                                                                             Opinion . v. Radnguez. Lany
                                                                                                           -· CriminalAppeals Unit
                                                                                                           f.trstJudicialDistrict of PA
                                                                                                                           OPINION                                              IIII II/IllI I /IllII/ I II/I
                                                                                                                                                                                                       7499785031
                                         Rose Marie Defino-Nastasi, J.

                                                                                                              PROCEDURAL HISTORY

                                                          On October 5, 2015, the Defendant was found guilty after a jury trial, presided over by

                                         the Honorable Rose Marie Defino-Nastasi, of Third Degree Murder, 18 Pa.C.S.                                                                                        § 2502(c), as a

                                         felony of the first degree.

                                                          On January 19, 2016, Defendant was sentenced to eighteen (18) to thirty-six (36) years

                                         for the third degree murder conviction.

                                                          Trial counsel, Joseph Valvo, Esq., filed a Motion for Reconsideration of Sentence on

                                         January 29, 2016. While the motion was still pending before this court, the Defendant filed a pro

                                         se notice of appeal to the Superior Court on February 26, 2016.

                                                          On March 14, 2016, the motion filed by Attorney Valvo was denied without a hearing.

                                         Since the Defendant's prose notice of appeal was docketed in the Superior Court, Attorney

                                         Valvo did not file a notice of appeal.

                                                          On May 9, 2016, Attorney Valvo filed a Motion to Withdraw as Counsel, which this

                                         court granted on May 10, 2016. John Belli, Esq. was appointed by the Court Appointments Unit

                                         on May 23, 2016.
·-----~        ·· ·------~ ·   ,.    ····---~;   ·   _._.   ·   -   ,   · ·~· ,.~_ , -· ·   · · --· - · · ·   · ··   ·--·· -   ·,.·--·-----~-,   ·.·   ·~~---· . ·--·· . .- · ;.:.-   __ . ·vr,· _. __ ._ .._   · . . :··· .-·~·~-·   ·.·.~ " ,   ·-- . _,   .


          t.




                                    On June 20, 2016, Attorney Belli filed a Rule 1925(b) Statement of Matters Complained

                       of on Appeal, pursuant to an Order of the court, claiming that the evidence was insufficient to

                       sustain the verdict of guilt for third degree murder because the Commonwealth failed to prove

                       that the killing was committed with malice because it occurred in the heat of passion "stemming

                       from the victim's larcenous behavior and the use of drugs and alcohol by both appellant and the

                       victim."!

                                                                                  STATEMENT OF FACTS

                                Philadelphia Police Officers Brian Saba and Andrew McCrea responded to a radio call of

                       a person screaming on the 1400 block of Poplar Street in North Philadelphia at approximately

                       6:00 a.m. on June 30, 2012. N.T. 09/30/15 at pp. 33-36. A black female, identified as Rolanda

                       Anderson (a/k/a Rhonda Toland), was in the middle of the street when they arrived, "screaming

                       and yelling[] that her friend was inside of 1430 [Poplar Street] dead." Id. at pp. 8, 34-35, 47. Ms.

                       Toland stated to the officers that the Defendant would not let her into the apartment or her friend

                       out, and that she knew that her friend was dead. Id. at pp. 35-36. Officer Saba entered the duplex

                       through the main front door and knocked on the door of the apartment. The Defendant opened

                       the door, pointed towards the back bedroom, and said, "She's back there. She overdosed." Id. at

                       pp. 35-36, 39.

                                Officer Saba looked down the hallway into the bedroom and observed the decedent,

                       Sonya Lewis, lying on her back on the ground with an air mattress on top of her. Id. at pp. 36,

                       39-40. The officer walked into the room and moved the air mattress. The decedent was

                       unresponsive. Id. at pp. 39-40. He then walked into the living room where the Defendant and



                       I
                        Counsel requested that he be permitted to file a supplemental Rule l 925(b) statement if the Defendant requested
                       additional issues be raised on appeal. On June 22, 2016, Defendant filed a prose Rule l 925(b) statement. On June
                       27, 2016, the court ordered counsel to file a supplemental statement. Counsel subsequently indicated to the court
                       after review of the record that he would not be filing a supplemental statement.

                                                                                                                                                                                                                            2
.. ···--·······-····-··-'   ·····---··    ··-···   . ..   ·   ·····•·   ..   ---········---···----   .,   ·~   ..   . . .   -   · .. ,.   ·---·············   ·····--··   •. -   -k.   ·-.   ~~~--·   ·. - ..   ,   ,   .•.   . . .   .   .   . .   . .   ~!   p   .. · - · ..• - .. ,. .,_ ·--· .. ·--··. ·-. ·- . · ,..... •.




                                         another female who was in the residence when the officers arrived, identified as Marquita

                                         Oglesby, were standing. Id at pp. 38-40, 47. At that time, Officer Saba observed scratches on the

                                         Defendant's face with fresh blood in the scratches. Id at p. 41.

                                                              Officer McCrea testified that the Defendant was "irate," "talking loud" at the ceiling, and

                                         kept stating that "they" were "setting him up," "they were sticking pills in her ass while she was

                                         tied up," and "I never touched her. I was jerking off." Id at pp. 55-57, 62-63.

                                                              The Defendant was transported to homicide headquarters. Detective Greg Singleton

                                         testified that he observed scratches on the Defendant's forehead, left cheek, and underneath his

                                         bottom lip. N.T. 09/30/15 at pp. 74-75. The Defendant, whom the detective described as

                                         "coherent and well-spoken," was Mirandized and gave a full statement. Id. at p. 96. The relevant

                                         portions is as follows:

                                                              Question:                                   Mr. Rodriguez, I'm Detective Singleton. I'll be asking you several

                                                                                                          questions concerning the death of Sonya Lewis on June 30, 2012 at

                                                                                                          approximately 6:06 a.m. inside of 1430 Poplar Street, Apartment

                                                                                                          A. Before we get started I'm going to ask some personal questions

                                                                                                          that we ask everyone. Okay?

                                                              Answer:                                     Okay.

                                                              Question:                                   Do you read, write and understand English?

                                                              Answer:                                     Yes.

                                                              Question:                                   What's the highest grade you completed in school?

                                                              Answer:                                     Sixteen years.

                                                              Question:                                   Does those 16 years of school include college?

                                                              Answer:                                     Yes.



                                                                                                                                                                                                                                                                                           3
Question:   What college did you attend?

Answer:     Burlington County College, Rider University and Thomas Edison

            College and Thomas Jefferson University.

Question:   Are you presently under the influence of drugs or alcohol?

Answer:     No.

Question:   Are you known by any other names or nicknames?

Answer:     Lorenzo.

Question:   Were you born here in the United States?

Answer:     I was born overseas on a military installation in Ancon Panama.



Question:   Are you an American Citizen?

Answer:     Yes. I was in the Army and I have an honorable discharge from

            service.

Question:   Mr. Rodriguez, tell me and Detective Spotwood in your own words

            what happened inside your apartment this morning.

Answer:     I was home on my steps smoking a cigarette. They started coming

            up to me. I don't even know their names. It was one girl in the

            beginning asking me for a cigarette. I gave her a cigarette and she

            offered me drugs. I was drunk and I took her in the apartment and

            we got high. She took advantage of me sexually then she helped

            herself to my bank card. I was high and I don't remember giving

            her my PIN number. She went and got money and she came back

            with the woman that is deceased. She left the deceased woman



                                                                                  4
--~   ..   -~·   -··   '·   --.· ....•..---   _.   ,,_   ··--··-··   -   · ····----·   ..   __   ,   .   · ----.·   ;:,   __   ,   •,_,__   -   "~~---·   .   ·-· ..   ··-·.




                                                                                                     with me and left. She went to go get drugs. While the deceased

                                                                                                     woman was there, she tried to take my bank card. I wouldn't give

                                                                                                     her the right PIN number. She kept leaving the apartment and

                                                                                                     coming back because she didn't have the right number. She started

                                                                                                     getting mad and bullying me and telling me to give her the PIN

                                                                                                     number. She was trying to pick a fight. She was doing her drugs

                                                                                                     and I was doing my drugs. She started taking my medication from

                                                                                                     my cabinet and putting [it] in her ass. She started taking my T-

                                                                                                     shirts and cologne and other clothes since she couldn't get my PIN

                                                                                                     number. I started ripping the bag up that she was putting my stuff

                                                                                                     in. She started attacking me and trying to take my drugs out of my

                                                                                                     hands. She was scratching my face and hitting me and biting me.

                                                                                                     She was so heavy I couldn't move. I rolled around and I choked

                                                                                                     her. She was trying to choke me and I was choking her back. Then

                                                                                                     she calmed down and I didn't know what to do so I just tied her up

                                                                                                     so she wouldn't attack me again. I thought she was sleeping

                                                                                                     because she was snoring and farting. I got paranoid because I

                                                                                                     didn't know how to get her out of my house without getting beat

                                                                                                     up by the people that was outside. I smoked the rest of the drugs I

                                                                                                     had and got high while I tried to figure out what to do. Then her

                                                                                                     other friends came back knocking on the door. I didn't want to let

                                                                                                     them in and I did. Then they came in and that's when I found out

                                                                                                     that she was dead, because the little girl went in the room and saw



                                                                                                                                                                               5
                                               ~=~"-- .,   ,     ·-·   ·-··:· ·- ,·.   ·-r-1··-··   : ,.·._•·.·-. ··.. ,··, · -·   - ..-.,.,__- ··-···-·" ··----·· ,·   ·   - ..




            her and she started screaming. I told the guy in the red hat to call

            the cops. The cops came and arrested me.

Question:   Tell me everyone that was in the apartment with you when the

            incident took place.

Answer:     Just me and the deceased girl. The other ones were out selling

            drugs and tricking.

Question:   Who were the other ones that you are referring to?

Answer:     The first girl that I got high with. She was big with big tits and

            long black hair. She was with a skinny girl and a guy with the red

            baseball cap. He's the one that took my military ring. It was 13 2

            Infantry and the 1 oth Mountain with my name on it and the last

            three of my Social Security number, 139, on the inside. They were

            bullying me and forcing their way into the apartment and stealing

            my shit. There were people outside too.

Question:   Do you know the guy's name in the red hat?

Answer:     No.

Question:   Can you describe the guy in the red hat further to me?

Answer:     He's a black guy, shorter than me (5'5" or 5'6"), red baseball cap,

            it looked fitted, skinny. He was dark complected, bald head or a

            tight fade wearing a white T-shirt.

Question:   Have you ever seen the guy in the red baseball cap before?

Answer:     I've never seen him before.




                                                                                                                                              6
                                     ---~--------~-------------;"1··--------------------




Question:   The scratches you have on your face, are they as a result of your

            altercation this morning?

Answer:     Yes.

Question:   Tell me how you got the injuries to your left hand.

Answer:     A combination from punching her and her biting me trying to get

            the drugs out of my hand and from me choking her.

Question:   What did you tie the deceased's hands up with?

Answer:     I used my belt to tie her hands behind her back. I used socks on her

            feet and I used the bed to block the door.

Question:   Is there anything you wish to add to your statement.

Answer:     No.

Question:   I'm going to show you a single photo. Can you tell me if you

            recognize this person?

Answer:     That's the lady that attacked me. (Photo shown of [decedent]

            Sonya Lewis)

Question:   I'm going to show you another photo. Can you tell me if you

            recognize this person?

Answer:     That's the first lady that I gave my PIN card to. She was the one

            that set everything up and brought the deceased girl over. (Photo

            shown of Rhonda Toland)

Question:   Do you know this person?

Answer:     She's the one that went in the room and found out that she was

            dead. (Photo shown of Marquita Oglesby)



                                                                                   7
        Question:     What bank card did you give to the first lady?

        Answer:       Chase Bank. The numbers on the card is 511809002790763        and

                      the back PIN number is 253. The expiration date is December

                      2014. It's a dark red debit card and it's chewed up on the borders.

        Question:     What's your PIN number to your Chase Bank debit card?

        Answer:        1911.

        Question:     Do you know what ATM she used?

        Answer:       Whatever one that's around there close. The bank should be able to

                      tell you that. Their number is 1-888-565-6505.

        Question:     Where is your Chase Bank card now?

        Answer:       I'm not sure. It might be in the house and it might not be. The

                      whole house is tore up from the fight.

        Question:     Did you have any sexual contact with the deceased?

        Answer:       No.

        Question:     Did you take any of her clothes off?

        Answer:       Yes. I took her pants and her shirt off.

        Question:     Why did you take her pants and her shirt off?

        Answer:       Because she shit her pants and I didn't want it to get on my bed.

Id. at pp. 82-90.

        Detective James Griffin testified that a banking representative from Chase Bank was

unable to locate any viable accounts for the Defendant based on the information he provided. Id.

at pp. 119-20.




                                                                                                   8
       -------~·-----~--------~-----~---             ----




        Marquita Oglesby testified that she had known the Defendant "Lorenzo" for a month or

so in June of 2012. She had been working as a prostitute and knew the Defendant from spending

time in the neighborhood. N.T. 09/30/15 at pp. 129-32, 164-65. She also knew Ms. Toland, who

was also a prostitute. Id. at p. 133.

        Ms. Oglesby had a "date" at the Carlisle Hotel across the street from the Defendant's

apartment on the night of the incident. She saw Ms. Toland and the decedent on Poplar Street on

her way to the hotel. They were going to the Defendant's apartment. Id. at pp. 134-35. Ms.

Oglesby finished her date and ran into Ms. Toland when she was walking home near Broad

Street and Girard Avenue the next morning. Ms. Toland was high and asked Ms. Oglesby to go

to the Defendant's apartment with her to bring him a bag of crack and to check on the decedent.

Id. at pp. 13 8-40. Ms. Oglesby agreed.

        When they arrived at the Defendant's apartment, the Defendant cracked the front door to

the apartment building open, peeped out, and asked Ms. Toland if she had the drugs for him. "He

looked scratched up" and seemed "high." Ms. Toland responded "yes" and asked where the

decedent was. The Defendant left the front door to the building open, ran into his apartment, and

locked the door. Id. at pp. 141-4 7. The two women banged on the door of his apartment several

times. Ms. Toland then went outside and started banging on the windows to the Defendant's

apartment. After Ms. Oglesby threatened to pull the fire alarm, the Defendant opened the door

and the two women walked in. Id. at pp. 146-48.

        When Ms. Oglesby asked the Defendant where the decedent was, he responded that "she

left." Id. at pp. 142-43. The door to the bathroom was open and the door to the bedroom was

closed. The entire apartment looked as if it had been hit by a tornado. Ms. Oglesby approached

the door to the bedroom and asked the Defendant what was going on in there. The Defendant



                                                                                                  9
-------------···-----------~---------·-··----·---------------·-··-------                                     Ir-------------




           stood in front of her and blocked her from entering the door, but eventually allowed Ms. Oglesby

           to go in. Id. at pp. 148-49.

                   Ms. Oglesby testified that the bedroom "didn't look right." Id. at p. 143. An air mattress

           was hanging off of the bed. Id. at p. 150. Ms. Oglesby lifted up the air mattress and found the

           decedent underneath. The decedent was lying on her back on the floor. Her pants and underwear

           were pulled down by her knees. Id. at p. 151. The Defendant told Ms. Oglesby that the decedent

           overdosed. He then walked over to his freezer, took out "three straights," and began to smoke

           crack. Id. at p. 159. The Defendant kept saying "help me, just help me" and started "talking

           about trying to get rid of the body and insurance." Id. at pp. 144, 153.

                   Ms. Toland ran out of the apartment screaming, "He choked her. He choked her." Id. at

           pp. 143-44. After she left, another guy from the neighborhood, "Dexter," came into the

           Defendant's apartment and said, "He killed my sister. What's going on, man? ... What you got

           for me, man? What you got?" The Defendant handed him his military ring and Dexter left. Id. at

           pp. 154-55. Ms. Oglesby testified that neither Ms. Toland, Dexter, nor she put anything into the

           decedent's body. Id. at pp. 160-62.

                   Officer Christine Hilbert, Crime Scene Unit, testified that the decedent was laying on the

           floor of the rear bedroom with an air mattress next to her. N.T. 10/01/15 at pp. 43-44. Her arms

           were stretched upwards over her head and to her sides. Id. at p. 48. A sock was tied around her

           right wrist and a second sock was tied around her right ankle. Id. at pp. 45, 48. There was no

           evidence that the decedent had defecated on herself as the Defendant indicated to detectives in

           his statement. Id. at pp. 46-47.2



           2 Dr. Albert Chu, Deputy Medical Examiner, likewise testified that there was no evidence indicating that
           the decedent had defecated on herself. N.T. 10/01/15 atpp. 20-21.


                                                                                                                       10
------··-----·----------·----------------------·····   ······---------   ----------------···-····   ·-   ------·-···-----   - ----·····----· ------·--°Ir--·-·-·---   -··-·---- ---·---------   ·-




                                   Officer Hilbert did not observe any bottles of alcohol or drugs anywhere in the

                      Defendant's apartment. Id. at p. 49. She collected two swabs of a white powder-substance that

                      was near the decedent's body. Id. at p. 37. Counsel stipulated that there were no detectable

                      commonly controlled substances in either sample. Id. at p. 58.

                                   Dr. Albert Chu, Deputy Medical Examiner, testified that the cause of death was

                      strangulation and the manner of death was homicide. N.T. 09/30/15 at pp. 189-191. The evidence

                      of strangulation included petechiae (bleeding in the eyelids), compression of the neck,

                      hemorrhages into the muscles of the neck, and a fracture of the thyroid cartilage. Id at pp. 191-

                      92. The decedent had abrasions to the left cheek, chin, right wrist, right hand, right buttock, and

                      small tears on the inside of her lips. Id. at pp. 192, 213.

                                   Dr. Chu testified that a certain amount of pressure must be applied to the neck for a

                      certain amount oftime in order for a person to lose consciousness. Id. at pp. 195-96. For a person

                      who is not fighting and willingly being suffocated, it takes approximately ten (10) to twelve (12)

                      pounds of pressure around the neck to block the carotid arteries, the vessels that supply blood to

                      the brain. Id. When the blood flow to the brain is completely blocked, unconsciousness can occur

                      in ten ( 10) to fifteen ( 15) seconds. Id. at pp. 200-01. If the pressure on the neck is maintained to

                      the point of unconsciousness but then released, the person will generally regain consciouseness.

                      Dr. Chu opined that it requires two (2) to five (5) minutes of sustained pressure on the neck to

                      cause death by strangulation. Id. at p. 197. Bleeding in the eyelids (petechiae) is caused when the

                      blood enters the brain and is unable to drain, causing pressure to build. Id. at pp. 200-01.

                                   Defense expert, Dr. Lawrence Guzzardi, testified that the decedent's blood alcohol

                      content (BAC) was 211 milligrams per deciliter, two-and-a-half times the legal limit. N.T.

                       10/01/15 at pp. 76-77. An individual with a BAC of .211 "would be falling down[,] exhibiting



                                                                                                                                                                            11
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                                                                                               ANALYSIS

              Defendant argues that the evidence was insufficient to support the jury's verdict of guilt

       for third degree murder because "the Commonwealth failed to prove that the killing was

       committed with malice as it is clear from the facts that the killing occurred in the heat of passion

       stemming from the victim's larcenous behavior and the use of drugs and alcohol" by both the

       Defendant and the decedent.

              The standard of review for a challenge to sufficiency is well-settled.

                                   The standard we apply when 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. Furthermore, when reviewing a sufficiency claim, our Court



                                                                                                                                                                                                         13
       is required to give the prosecution the benefit of all reasonable inferences to be

       drawn from the evidence.

               However, the inferences must flow from facts and circumstances proven

       in the record, and must be of such volume and quality as to overcome the

       presumption of innocence and satisfy the jury of an accused's guilt beyond a

       reasonable doubt. The trier of fact cannot base a conviction on conjecture and

       speculation and a verdict which is premised on suspicion will fail even under the

       limited scrutiny of appellate review.

Com. v. Slocum, 86 A.3d 272, 275-76 (Pa. Super. 2014) (citing Com. v. Bostick, 958 A.2d 543,

560 (Pa. Super. 2008), app. denied, 987 A.2d 158 (Pa. 2009) (quoting Com. v. Smith, 956 A.2d

1029, 1035-36 (Pa. Super. 2008) (en bane)).

       To establish the offense of third degree murder, the Commonwealth need only prove

beyond a reasonable doubt that the defendant killed an individual, with legal malice, i.e. that he

"consciously disregarded an unjustified and extremely high risk that his actions might cause

death or serious bodily harm." Com. v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011) (citing

Com. v. Young, 431 A.2d 230, 232 (Pa. 1981) (emphasis added)). "Malice is not merely ill-will

but, rather, wickedness of disposition, hardness of heart, recklessness of consequences, and a

mind regardless of social duty." Id. (citing Com. v. Hardy, 918 A.2d 766, 774 (Pa. Super. 2007),

app. denied, 940 A.2d 362 (Pa. 2008)). Malice may be inferred after considering the totality of

the circumstances. Com. v. Gonzalez, 858 A.2d 1219, 1223 (Pa. Super. 2004), app. denied, 871

A.2d 189 (Pa. 2005).

       Section 2503 of the Pennsylvania Crimes Code provides that: A person who kills an

individual without lawful justification commits voluntary manslaughter if at the time of the



                                                                                                     14
..l




      killing he is acting under a sudden and intense passion resulting from serious provocation by the

      individual killed. 18 Pa.C.S. § 2503(a). Voluntary manslaughter is the appropriate verdict when

      the killing is in the "heat of passion" as a result of provocation by the victim. See Com. v. Kim,

      888 A.2d 847, 853 (Pa. Super. 2005), app. denied, 899 A.2d 1122 (Pa. 2006). "The test for

      [serious] provocation is whether a reasonable person confronted by the same series of events,

      would become impassioned to the extent that his mind would be incapable of cool reflection." Id.

      (internal quotations, citations, and edits omitted).

             Defendant does not dispute that he strangled the decedent and that the decedent died as a

      result of his actions. He only disputes the jury's finding that he acted with malice. Defendant

      argues that he killed the decedent in the heat of passion and, thus, the evidence is insufficient to

      sustain the jury's verdict of guilt for third degree murder. Defendant's claim is without merit.

      The trial court charged the jury in this case on the elements of voluntary manslaughter as well as

      third degree murder. The jury found that the Defendant's conduct amounted to third degree

      murder. Viewing the evidence in the light most favorable to the Commonwealth as verdict

      winner, there is ample evidence that Defendant either knew or recklessly disregarded the fact

      that Sonya Lewis would die when he strangled her into and past unconsciousness.

             The only evidence that the killing was committed in the heat of passion as a result of

      provocation by the decedent's "larcenous behavior" came from the Defendant's self-serving

      statement, which was replete with inconsistencies and contradicted by the physical evidence.

      Defendant provided three different accounts as to what happened to the decedent - first, when

      Marquita Oglesby attempted to ascertain the decedent's whereabouts, he stated that "she [had]

      left" his apartment; then, when Ms. Oglesby discovered the decedent's body on the floor of the

      Defendant's bedroom, he claimed that she "overdosed"; and lastly, the jury heard the version of



                                                                                                           15
                                                -·.   ··-···-,   :·. ·~ .. ·,   · ·-·   _._ · ..-   ···--·-   --·-·-· -····   <~L!   ·--•···-····   ·.:.-··   ·.        : .. _   ··,: .. ;·;   :.   ;..:·-·····




events from the Defendant's statement to detectives, i.e. that the Defendant was defending

himself.

       The Defendant stated to Detective Singleton that the decedent and he were drinking and

doing drugs, and that at some point, the decedent tried to take his bank card. When he would not

give her the PIN number for his card, the decedent started "bullying" him, putting hist-shirts,

cologne, and medication in a bag. Defendant provided Detective Singleton with his account and

PIN number for Chase Bank, both nonexistent.

       When the Defendant ripped up the bag in an attempt to stop the decedent from taking his

belongings, the decedent started "attacking" him, scratching his face, hitting, and biting him.

Defendant stated to the detectives that he "rolled around" and "choked" the decedent until she

"calmed down," then "tied her up" with a belt and socks. At the end of this violent struggle, the

Defendant had a few scratches to his face and left hand while the decedent lay strangled to death

on the floor of his bedroom with her pants and underwear pulled down to her knees, socks tied

around her right wrist and right ankle, and the Defendant's air mattress on top of her. Although

Defendant claimed that he took the decedent's pants off because she defecated, neither the Crime

Scene Unit nor the Medical Examiner's testimony supported this.

       Dr. Albert Chu determined that the decedent's cause of death was strangulation based on

findings of bleeding of the eyelids, compression of the neck, hemorrhages of the muscles of the

neck, and a fracture of the thyroid cartilage. He testified that two to five minutes of sustained

pressure on the neck is required to cause death by strangulation. It takes approximately ten to

twelve pounds of pressure around the neck of a person who is willingly being suffocated to lose

consciousness, and if the pressure is maintained to the point of unconsciousness but then

released, the person will typically regain consciousness. Therefore, the veracity of the



                                                                                                                                                                   16
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                                Defendant's self-serving claim that he choked the decedent after she attacked him and only until

                                she "calmed down" was for the jury to decide. Com. v. Hopkins, 747 A.2d 910, 914 (Pa. Super.

                                2000) (factfinder may believe all, part, or none of the evidence).

                                                  The jury found the Defendant guilty of third degree murder. The Pennsylvania Supreme

                                Court has found evidence of death by strangulation sufficient to establish the requisite intent for

                               first degree murder. See Com. v. Martin, 101 A.3d 706, 719 (Pa. 2014), cert. denied, 136 S. Ct.

                                201, 193 L. Ed. 2d 155 (2015) (appellant acted with malice and a specific intent to kill by

                                strangling victim until she was dead); Com. v. Cooper, 941 A.2d 655, 662 (Pa. 2007) (same).

                                Consequently, Defendant's act of strangling the decedent in this case certainly demonstrated an

                                extreme indifference to the value of human life and an unjustified and extremely high risk that

                                his conduct would result in death or serious bodily injury to the decedent so as to constitute the

                                requisite malice for third degree murder. Accordingly, no relief is due.

                                                                                         CONCLUSION

                                                  Based on the foregoing, the judgment of sentence of the trial court should be affirmed.

                                                                                                                  By the Court:




                                                                                                                                                                                                               17
Commonwealth v. Larry Rodriguez
CP-51-CR-0000744-2014
Opinion

                                           Proof of Service

I hereby certify that I am this dayserving the foregoing Court Order upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114:


Appellant:                       Larry Rodriguez, MJ 3361
                                 SCI Retreat
                                 660 State Route 11
                                 Hunlock Creek, PA 18621

Type of Service: () Personal (x) First Class Mail () Other, Please Specify:


Counsel:                         John Belli, Esq.
                                 2 Penn Center
                                 1500 JFK Blvd, Suite 900
                                 Philadelphia, PA 19102

Type of Service:     () Personal (x) First Class Mail () Other, Please Specify:


District Attorney:               Philadelphia District Attorney's Office
                                 Appeals Unit
                                 Widener Bldg.
                                 3 South Penn Square
                                 Philadelphia, PA 19107

Type of Service: () Personal () First Class Mail (x) Inter-Office




Date: 09/15/2016
                                        D~lfaro, Esq. .....~
                                        Law Clerk to the Honorable Rose Marie Defino-Nastasi
