J-S66016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
            v.                            :
                                          :
                                          :
KEVIN BLAIR HOOKS,                        :
                                          :
                         Appellant        :   No. 9 WDA 2017

         Appeal from the Judgment of Sentence November 9, 2016
    In the Court of Common Pleas of Beaver County Criminal Division at
                      No(s): CP-04-CR-0002122-2015


BEFORE:    BENDER, P.J.E., DUBOW, J., and PLATT*, J.

MEMORANDUM BY DUBOW, J.:                        FILED DECEMBER 06, 2017

      Appellant Kevin Blair Hooks appeals from the Judgment of Sentence

entered by the Beaver County Court of Common Pleas after a jury found him

guilty of Third-Degree Murder.       Appellant challenges the sufficiency and

weight of the evidence. After thorough review, we affirm.

      We have gleaned the following facts from the trial court’s Pa.R.A.P.

1925(a) Opinion and the certified record. On August 29, 2015, Donald Ours

and Sandra Jergons heard banging and rumbling noises that sounded like a

physical fight emanating from an apartment above theirs in the Mulberry

Apartments located in New Brighton.       Moments later they heard Deborah

Hill-Payne (“Debbie”), their upstairs neighbor, yelling “stop” and “help.” Mr.

Ours called 911, and both Mr. Ours and Ms. Jergons ran upstairs, where they

found Debbie lying on the floor in the hallway, gasping for breath and

covered with blood. Joyce Moore, who lived in a house directly across the

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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street from the Mulberry Apartments, also heard a woman screaming in the

apartment building, looked out her window, and saw a white male running

out of the building and into an alleyway shortly after she heard the screams.

        The paramedics arrived within minutes, and building residents led

them to Debbie who was lying on the second floor hallway, loosely holding a

bloody knife in her hand. The medics discovered that she had multiple stab

wounds to her chest and abdomen, including a deep cut that lacerated her

right pulmonary artery. She also had defensive wounds on her hands and

left arm. They transported Debbie to the hospital where she died from her

injuries.

        As police officers were leaving the police station, located three blocks

from the Mulberry Apartments, to respond to Mr. Ours’s 911 call, they

encountered Appellant in the parking lot. His pants and shirt were covered

in blood, he had scratches on his head and a cut on the fingers of his right

hand, and he was screaming that he had been stabbed.            Officer Rodney

Biskup called for an ambulance and waited with Appellant.        Appellant told

Officer Biskup that he had grabbed the kitchen knife from Debbie, who had

tried to stab him with it because she wanted money from him that he did not

have.

        At Debbie’s apartment, police officers photographed an overturned

table in the living room and blood throughout the living room and in the

hallway leading out the door. Laboratory testing revealed blood belonging to




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both Debbie and Appellant on Debbie’s clothing, Appellants’ clothing, and the

knife. Debbie also had Appellant’s blood under her fingernails.

        Police officers arrested Appellant, and charged him with murder.1 At

the police station, “Appellant was advised of his Miranda rights and

consented to having the interview recorded.” Trial Ct. Op., dated 1/27/17,

at 30.2 In that interview, Appellant indicated, inter alia, that he had been

buying crack cocaine from Debbie over a period of the several months before

the incident.      He stated that on the day of the incident, Debbie told

Appellant that the person selling her the crack would no longer sell to her

because she had vouched for Appellant and Appellant had not paid as

promised. He said that she grabbed the kitchen knife, and he tried to wrestle

it from her. He stated that Debbie got stabbed in the chest when he was

holding her wrist and trying to pull her into a chokehold. Appellant denied

that he ever held the knife, and stated that he did not know how Debbie had

gotten the other numerous stab wounds, including the fatal one. See id. at

5-6; N.T., 8/17/16, at 34-196; N.T., 8/19/16, at 19-29.

        A jury trial proceeded, at which the Commonwealth presented

testimony     from     Debbie’s     neighbors,   numerous   police   officers   and


____________________________________________


1
    18 Pa.C.S. § 2501.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).




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paramedics,     and    Dr.   Todd    Luckasevic,   the   forensic   pathologist   who

conducted the autopsy on Debbie’s body. The Commonwealth played a copy

of Appellant’s video interview with police without objection.3             Appellant

called Officer Doerschner and a private detective to testify on his behalf.

       The jury found Appellant guilty of Murder in the Third Degree, 18

Pa.C.S. § 2502(c), and the court sentenced him on November 9, 2016 to a

term of 20 to 40 years’ incarceration.

       After the denial of post-sentence motions, Appellant timely appealed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:

              1. Whether the evidence produced at trial was sufficient to
                 sustain the jury’s verdict that Defendant has requisite
                 malicious intent necessary to convict him of Murder of
                 the Third Degree?

              2. Whether the jury’s verdict finding the Defendant guilty
                 of Murder of the third Degree was against the weight of
                 the evidence?

Appellant’s Brief at 7 (unnecessary capitalization omitted).




____________________________________________


3
  The video was not transcribed. A poor-quality copy of that interview,
submitted on a USB “thumb-drive,” is part of the certified record. Appellant
did not object to the admission of the video and has not challenged the trial
court’s summation of its contents that the court provided in its Pa.R.A.P.
1925(a) Opinion.



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Sufficiency of the Evidence

     Appellant first challenges the sufficiency of the evidence, averring that

the Commonwealth failed to prove that he “had the requisite malicious intent

to convict him of murder of the third degree in light of the undisputed

evidence supporting his claim of self-defense.”       Id. at 14. Appellant

concedes that malice may be inferred from the injury caused by a deadly

weapon on a vital part of the victim’s body. He avers, however, that because

the Commonwealth failed to introduce “evidence at trial as to the timing or

sequence of the wounds sustained by the deceased or the [Appellant],” the

Commonwealth failed “to disprove [Appellant’s] self-defense claim or that he

acted with the wickedness of disposition, hardness of heart, recklessness of

consequences, and a mind regardless of social duty to sustain his conviction

for third degree murder.” Id. at 17.

      In reviewing challenges to the sufficiency of the evidence, this Court

must determine whether “the evidence introduced at trial and all reasonable

inferences derived from that evidence, viewed in the light most favorable to

the Commonwealth as verdict winner, is sufficient to establish beyond a

reasonable doubt the elements of” the crime. Commonwealth. v. Staton,

38 A.3d 785, 789 (Pa. 2012) (citation omitted). Evidentiary sufficiency is a

question of law, thus “our standard of review is de novo and our scope of

review is plenary.”   Commonwealth v. Meals, 912 A.2d 213, 218 (Pa.

2006) (citation omitted).


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      Our Crimes Code defines three degrees of homicide. See 18 Pa.C.S.

§§ 2501, 2502. To convict a defendant of Third-Degree Murder provided in

Section 2502(c), the Commonwealth “need only prove that the defendant

killed another person with malice aforethought.”        Commonwealth v.

Santos, 876 A.2d 360, 363 (Pa. 2005). “This Court has long held that

malice comprehends not only a particular ill-will, but ... [also a] wickedness

of disposition, hardness of heart, recklessness of consequences, and a mind

regardless of social duty, although a particular person may not be intended

to be injured.” Id. (citation and internal quotation marks omitted). “The act

sufficient for third degree is still a purposeful one, committed with malice,

which results in death[.]” Commonwealth v. Fisher, 80 A.3d 1186, 1191

(Pa. 2013).

      A finding of malice based on a “recklessness of consequences” requires

that “a defendant be found to have consciously disregarded an unjustified

and extremely high risk that his actions might cause death or serious bodily

injury.” Commonwealth v. Scales, 648 A.2d 1205, 1206–07 (Pa. Super.

1994), citing Commonwealth v. Fierst, 620 A.2d 1196, 1203 (Pa. Super.

1993).   See, e.g., Commonwealth v. Marks, 704 A.2d 1095 (Pa. Super.

2007) (finding malice where a defendant employed a deadly weapon), and

Commonwealth v. Marquez, 980 A.2d 145 (Pa. Super. 2009) (finding

malice where a defendant perpetrated a shooting motivated by a prior

incident involving the victim).


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      Finally, as Appellant correctly notes, malice may be inferred by the

actor’s use of a deadly weapon upon a vital part of the victim’s body.

Commonwealth v. Ventura, 975 A.2d 1128, 1142 (Pa. Super. 2009).

      Our Supreme Court has held that a claim of self-defense, if believed by

the fact-finder, negates any mens rea of recklessness. See Commonwealth

v. Fowlin, 710 A.2d 1130, 1132-33 (Pa. 1998); Commonwealth v.

Hilbert, 382 A.2d 724, 731 (Pa. 1978).       A fact-finder cannot find that a

defendant justifiably acted in self-defense and simultaneously hold the

defendant criminally liable for crimes involving recklessness. Fowlin, supra

at 1132.

      When one employs deadly force, as Appellant did here, the elements

of a claim of self-defense are that the individual (1) reasonably believed that

force was necessary to protect himself against death or serious bodily injury;

(2) was free from fault in provoking the use of force against him; and (3) did

not violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738,

740 (Pa. 2012); see also 18 Pa.C.S § 505(b)(2) (pertaining to use of force

in self-protection).

      A defendant does not have a burden to prove a claim of self-defense.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001). Rather, once a

defendant introduces some evidence to justify a finding of self-defense, then

the issue is properly before the fact-finder and the Commonwealth bears the

burden to disprove the defense beyond a reasonable doubt. Id.


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      Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, as we must, we find that the Commonwealth disproved

Appellant's claim of self-defense beyond a reasonable doubt.                Specifically,

the Commonwealth presented undisputed evidence that several people

heard a female voice screaming and yelling for help minutes before they

observed her laying on the floor in a pool of blood. In addition, the forensic

pathologist testified with the aid of photographs about the numerous deep

stab wounds Debbie had suffered in her chest and abdomen. Dr. Luckasevic

also testified that Debbie had numerous defensive wounds on her hands and

arms. While Appellant attempted to establish that the wounds on Debbie’s

hands   could    have   occurred    during     a   struggle   for     the   knife,   the

Commonwealth presented more than sufficient evidence to show that

Appellant did not act in self-defense in repeatedly stabbing Debbie, and that

the deep stab wound to her chest, which severed Debbie’s pulmonary artery,

established that Appellant acted with malice.             Accordingly, Appellant’s

sufficiency challenge fails to merit relief.

Weight of the Evidence

      Appellant next contends that the trial court erred in denying his Motion

for a New Trial based on the weight of the evidence.                He avers that the

verdict was against the weight of the evidence because the jury “disregarded

the undisputed evidence that the deceased sustained her injuries in the

course of a struggle with the Defendant in which he sustained a serious


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injury to his hand and that during the altercation she had possession of the

knife.”   Appellant’s Brief at 18.   Without citing supporting authority or a

developed argument, Appellant summarily asserts that the jury’s verdict

“must have been influenced by an unjustified emphasis on the injuries

sustained by the deceased.” Id.

      Our standard of review for a challenge to the weight of the evidence is

well settled. The finder of fact is the exclusive judge of the weight of the

evidence and the fact finder is free to believe all, part, or none of the

evidence presented and determines the credibility of the witnesses.         See

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).                   As an

appellate court, we cannot substitute our judgment for that of the finder of

fact. See id. Therefore, we will reverse a jury's verdict and grant a new

trial only where the verdict is “so contrary to the evidence as to shock one's

sense of justice.” See Commonwealth v. Passmore, 857 A.2d 697, 708

(Pa. Super. 2004).

      A verdict is said to be contrary to the evidence such that it shocks

one's sense of justice when “the figure of Justice totters on her pedestal,” or

when “the jury's verdict, at the time of its rendition, causes the trial judge to

lose his breath, temporarily, and causes him to almost fall from the bench,

then it is truly shocking to the judicial conscience.”     Commonwealth v.

Davidson, 860 A.2d 575, 581 (Pa. Super. 2004) (citation omitted).

      Furthermore,


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      where the trial court has ruled on the weight claim below, an
      appellate court's role is not to consider the underlying question
      of whether the verdict is against the weight of the evidence.
      Rather, appellate review is limited to whether the trial court
      palpably abused its discretion in ruling on the weight claim.

Champney, 832 A.2d at 408 (citation omitted).

      “A motion for a new trial on the grounds that the verdict is contrary to

the weight of the evidence, concedes that there is sufficient evidence to

sustain the verdict.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000) (citation omitted).

      Thus, the trial court is under no obligation to view the evidence
      in the light most favorable to the verdict winner. An allegation
      that the verdict is against the weight of the evidence is
      addressed to the discretion of the trial court. A new trial should
      not be granted because of a mere conflict in the testimony or
      because the judge on the same facts would have arrived at a
      different conclusion. A trial judge must do more than reassess
      the credibility of the witnesses and allege that he would not have
      assented to the verdict if he were a juror. Trial judges, in
      reviewing a claim that the verdict is against the weight of the
      evidence do not sit as the thirteenth juror. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.

Id. (internal citations, footnote, and quotation marks omitted).

      Here, the trial court noted that it had presided over the jury trial,

viewed all of the evidence and testimony presented to the jury, and noted

that the evidence “strongly supports the jury’s verdict.” Trial Ct. Op., dated

1/27/17, at 8.

      Bearing in mind our standard of review when evaluating a weight of

the evidence claim, we find no palpable abuse of discretion in the trial

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court's denial of Appellant’s motion.   Further, we conclude that the jury’s

verdict does not “shock the conscience of the court.”     Appellant’s weight

challenge, thus, fails.

      Having concluded that neither Appellant’s sufficiency challenge nor his

weight challenge have merit, we affirm his Judgment of Sentence.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/17




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