J-A24027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARCEL BAINES,

                            Appellant                No. 3295 EDA 2013


     Appeal from the Judgment of Sentence Entered on December 10, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015598-2009


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 01, 2014

        Appellant, Darcel Baines, appeals from the judgment of sentence of

15-30 years’ incarceration and a consecutive term of 5 years’ probation,

imposed following her conviction for third degree murder and possessing an

instrument of crime. Appellant claims that the evidence was insufficient to

prove she possessed the requisite mens rea of malice as necessary to

support her conviction for third degree murder.      After careful review, we

affirm.1

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant’s attorney, John P. Cotter, Esq., initially requested oral argument
in this case. However, immediately prior to the date set for oral argument,
Attorney Cotter submitted this case for our consideration without oral
argument. Such action does not typically concern us; indeed, when the
controversy that gives rise to appellate review is adequately addressed in
(Footnote Continued Next Page)
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      The trial court summarized the facts adduced at trial as follows:

            On August 5, 2008, police responded to a report of a
      stabbing at 1503 John F. Kennedy Boulevard, Philadelphia,
      where they came upon the victim, Yvette Prince[,] who had been
      stabbed one time in her left chest. Police transported the victim
      to a nearby hospital where she was later pronounced dead at
      4:54 p.m. [Appellant] was still at the scene holding a knife
      when police arrived. She was taken into custody and gave a
      statement in which she admitted that she stabbed the victim.

            The stabbing had its genesis in a series of events that
      began at approximately 2:55 p.m. that day. Mr. Leroy McQueen
      and the victim were sitting on a bench in Love Park when the
      victim noticed [Appellant] and said to McQueen something to the
      effect that [Appellant] had stolen her boyfriend. The victim
      walked over to [Appellant] and confronted her. [Appellant], in
      response, showed the victim a knife with a black handle at which
      time the victim began walking away from [Appellant], back
      towards McQueen. As the victim did so, [Appellant] attempted
      to provoke the victim to hit her. The victim eventually did so
                       _______________________
(Footnote Continued)

the parties’ briefs, and our review is unlikely to benefit from oral argument,
submission without oral argument is permitted, if not encouraged.

      However, Attorney Cotter requested oral argument in two other cases
set to be heard by this panel on the same day. And, as he did in the instant
case, Attorney Cotter submitted those cases for our consideration without
oral argument immediately prior to the date set for oral argument. Indeed,
it appears to be Attorney Cotter’s usual practice to request, but never to
attend oral argument.

      Rule 3.2 of Pennsylvania’s Rules of Professional Conduct states that
“[a] lawyer shall make reasonable efforts to expedite litigation consistent
with the interests of the client.” Requesting oral argument, without any
intention to actually attend oral argument, does not comport with the text or
the spirit of Rule 3.2, as oral argument panels do not occur with the same
frequency as panels composed of cases where oral argument is not
requested. Additionally, insincere requests for oral argument may serve to
delay appellate review of other cases where there is a genuine desire by
those appellants to assist this Court’s disposition through oral advocacy.



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        and slapped [Appellant] with her open hand once on the side of
        her face. [Appellant] got up, … pulled out the knife from a black
        pocketbook, and stabbed victim in the chest one time.
        [Appellant] then walked back to her seat in Love Park and sat
        down with the knife still in her hand, as the victim collapsed to
        the ground.

              An autopsy revealed that the victim suffered a single stab
        wound, five to seven inches deep, to the left front part of the
        chest approximately two inches from the center of the chest.
        The stab wound caused fatal injury to h[er] heart and left lung.
        The manner of death was deemed to be homicide.

Trial Court Opinion (TCO), 10/25/12, at 2.

        Appellant’s non-jury trial, held on January 20, 2011, resulted in her

conviction for third degree murder, 18 Pa.C.S. § 2502(c), and possessing an

instrument of crime, 18 Pa.C.S. § 907. On January 5, 2012, the trial court

sentenced Appellant to 15-30 years’ incarceration for third degree murder,

and 5 years’ probation for possessing an instrument of crime.

        Appellant filed a timely notice of appeal2 and, subsequently, a timely

Pa.R.A.P. 1925(b) statement.           However, on March 26, 2012, this Court

entered an order dismissing the appeal due to Appellant’s failure to file a

docketing statement.        See Pa.R.A.P. 3517.   Unaware that the appeal had

been dismissed, the trial court issued a Rule 1925(a) opinion on October 25,

2012.




____________________________________________


2
    This initial appeal was docketed at 420 EDA 2012.




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        Appellant subsequently filed a PCRA3 petition requesting reinstatement

of her direct appeal rights.           The PCRA court granted the request on

November 18, 2013. Appellant immediately filed a nunc pro tunc notice of

appeal on November 19, 2013. She also filed a supplemental Rule 1925(b)

statement on December 2, 2013.             On December 17, 2013, the trial court

issued a supplemental Rule 1925(a) opinion.4

        Appellant now presents the following question for our review: “Was the

evidence     insufficient   to   convict       [A]ppellant   of   3rd   degree   murder?”

Appellant’s Brief at 2. More specifically, Appellant claims:

        The evidence was insufficient to convict [Appellant] of 3rd degree
        murder because the evidence was insufficient to show that [she]
        had the requisite intent or mens rea … to show that [she] acted
        with malice. The evidence is clear that the victim initiated the
        confrontation by going to where [Appellant] was sitting and
        confronting [Appellant,] claiming that [Appellant] had stolen her
        man[,] and then after [Appellant] showed a knife[,] the victim
        went back to [Appellant] and slapped [her] so hard in the face
        that it made the wig on [Appellant’s] head spin. It was only
        after and in response this unprovoked attack and assault that
        [Appellant] stabbed the victim one time. [Appellant] stayed at
        the scene of the incident, did not try to hide the knife and told
        the arresting officer what happened. This evidence is insufficient
        to show that [Appellant] had a wicked disposition, hardness of
        heart, cruelty, recklessness of consequences, and a mind
        regardless of social duty. [Appellant’s] actions were unlawfully
        provoked by the combative behavior and assault upon [her] by

____________________________________________


3
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
4
  The supplemental opinion largely incorporated the contents of the October
25, 2012 trial court opinion. It also addressed issues not pertinent to the
instant appeal.



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J-A24027-14


      the victim. To infer malice in this situation is to base a verdict of
      guilt[y] on surmise and conjecture.

Appellant’s Brief at 5.

      Our standard of review of sufficiency claims is well-settled:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence.

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

citations omitted).

      Third degree murder is defined by statute only in relation to first and

second degree murder. Section 2502 of the Criminal Code states:

      (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.

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


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

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

        [T]hird degree murder is not a homicide that the
        Commonwealth must prove was committed with malice
        and without a specific intent to kill. Instead, it is a
        homicide that the Commonwealth must prove was
        committed with malice, but one with respect to which the
        Commonwealth need not prove, nor even address, the
        presence or absence of a specific intent to kill. Indeed, to
        convict a defendant for third degree murder, the jury need
        not consider whether the defendant had a specific intent to
        kill, nor make any finding with respect thereto.

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

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

134 S.Ct. 2314 (U.S. 2014).

     By contrast,

     A person who kills an individual without lawful justification
     commits voluntary manslaughter if at the time of the killing he is
     acting under a sudden and intense passion resulting from serious
     provocation by:

        (1) the individual killed; or




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         (2) another whom the actor endeavors to kill, but he
         negligently or accidentally causes the death of the
         individual killed.

18 Pa.C.S. § 2503(a).       Whereas, “[a] person is guilty of involuntary

manslaughter when as a direct result of the doing of an unlawful act in a

reckless or grossly negligent manner, or the doing of a lawful act in a

reckless or grossly negligent manner, he causes the death of another

person.” 18 Pa.C.S. § 2504(a).

      Thus, the element that sets apart third degree murder from lesser

forms of homicide is malice. Here, Appellant contends the Commonwealth

failed to produce sufficient evidence of malice and, therefore, her conviction

for third degree murder cannot withstand sufficiency review. We disagree.

         In determining whether malice has been established, our
      Court has utilized the traditional definition of that mental state
      set forth in Commonwealth v. Drum, 58 Pa. 9 (1868). That
      seminal definition makes clear that malice aforethought requires
      a unique state or frame of mind characterized by wickedness,
      hardness, cruelty, recklessness, and disregard of social duty:

         Malice is a legal term, implying much more [than ill-will,
         spite, or a grudge]. 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.

      Id. at 15.

             Malice has been characterized as exhibiting an “extreme
      indifference to human life,” Commonwealth v. Gardner, 490
      Pa. 421, 416 A.2d 1007, 1008 (1980) (emphasis supplied), and
      “may be found to exist not only in an intentional killing, but also

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      in an unintentional homicide where the perpetrator ‘consciously
      disregarded an unjustified and extremely high risk that his
      actions might cause death or serious bodily harm.’”
      Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230, 232
      (1981) (quoting Commonwealth v. Hare, 486 Pa. 123, 404
      A.2d 388, 391 (1979)) (emphasis supplied).

            Indeed, our Court has stated that an inference of malice is
      not supported even by evidence which demonstrates that a
      defendant acted out of anger and rage; in such a case, voluntary
      manslaughter, not murder, is established. Thus, the mental
      state of malice aforethought is significantly more than mere
      carelessness or neglect, or the disregard of a chance or
      possibility of death[.]

Commonwealth v. Ludwig, 874 A.2d 623, 631-32 (Pa. 2005) (some

internal citations omitted).

      We consider the trial court’s determination that Appellant acted with

malice with these standards in mind. The trial court states:

            The evidence was sufficient for this Court to conclude
      beyond a reasonable doubt that [Appellant] was guilty of third
      degree murder. At trial, this Court, sitting as fact-finder, heard
      testimony that after being approached by the victim, [Appellant]
      showed her a knife and then, as the victim turned to walk away,
      [Appellant] began taunting her and egging her on to strike her.
      The victim struck [Appellant] with an open hand at which time
      [Appellant] took out the knife and plunged it into the chest of
      the victim, killing her. “Malice is properly inferred when a deadly
      weapon is directed to a vital part of the body.” Commonwealth
      v. Roberts, 437 A.2d 948, 952 (Pa. 1981) (citing
      Commonwealth v. Palmer, 292 A.2d 921, 923 (Pa. 1972)).
      Thus, malice was established by the evidence.

            Moreover, [Appellant]’s claim that she acted in self-
      defense fails. When evidence of self-defense arises from any
      source, the Commonwealth must disprove self-defense beyond a
      reasonable doubt by establishing that: (1) the defendant did not
      reasonably believe that he was in danger of death or serious
      bodily injury; (2) the defendant provoked the use of force; or (3)
      the defendant had a duty to retreat and retreat was possible



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     with complete safety. Commonwealth v. Stonehouse, 555
     A.2d 772; 781 (Pa. 1989)[;] [s]ee also 18 Pa.C.S. § 505.

           The Commonwealth met its burden of proof here.
     [Appellant] initiated the incident by provoking the victim to hit
     her at a time when [Appellant] was armed with a knife and the
     victim had turned to walk away from [Appellant]. It was clear
     from the evidence that after the victim began walking away,
     [Appellant] wanted the victim to strike her so that [Appellant]
     could stab her. In addition, the victim had no weapons and
     there was no evidence presented establishing that [Appellant]
     reasonably could believe that she was in danger of death or
     serious bodily injury.      Finally, the evidence showed that
     [Appellant] could have retreated in complete safety. Thus, it is
     clear that the Commonwealth presented sufficient evidence to
     disprove the defense of self-defense.

           [Appellant]’s claim that she acted in the heat of passion is
     equally unavailing. The evidence demonstrated the following:
     [Appellant] became upset when the victim confronted her about
     having stolen her boyfriend; [Appellant] displayed a knife to the
     victim and then when the victim turned to walk away,
     [Appellant] began taunting her in order to provoke the victim to
     slap her; when the victim did as [Appellant] asked, [Appellant]
     immediately stabbed her in the chest. It was clear from this
     evidence that [Appellant] made a conscious choice to provoke
     the victim after the victim turned to walk away so that she could
     stab her. Her actions were not the product of a sudden or
     intense passion but rather contemplation and reflection. Thus,
     the evidence was sufficient to justify the conclusion that
     [Appellant] did not act out of passion, but instead acted in a cool
     and calculating manner to punish the victim for her alleged
     disrespect.

TCO, at 4-6.

     We agree entirely with the trial court’s reasoning.   Appellant taunted

the victim to provoke a physical altercation.   The victim’s conduct did not

present a serious threat of harm yet, nevertheless, Appellant failed to

retreat in the face of that threat when she was clearly able to do so. Most

importantly, Appellant used a deadly weapon on a vital part of the victim’s


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body.    These circumstances, considered collectively, convince us that the

Commonwealth provided sufficient evidence that Appellant acted with malice

when she stabbed and killed the victim. Appellant was properly convicted of

third degree murder and is not entitled to relief.

        Judgment of sentence affirmed.

        Judge Platt joins in the memorandum.

        President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/2014




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