J-S26024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NYHEIM REAVES,

                            Appellant                  No. 659 EDA 2015


            Appeal from the Judgment of Sentence February 6, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0007567-2013


BEFORE: OLSON, STABILE, and STRASSBURGER, JJ.*

MEMORANDUM BY STABILE, J.:                           FILED OCTOBER 17, 2016

        Appellant, Nyheim Reaves, appeals from the February 6, 2015

judgment of sentence entered in the Court of Common Pleas of Philadelphia

County (“trial court”) following his convictions of third-degree murder and

possessing an instrument of crime (“PIC”).1 Appellant challenges the

sufficiency of the evidence and the jury charge. Upon review, we affirm.

        The trial court summarized the relevant background as follows:

              On April 9, 2013, at approximately 12:25 A.M. Appellant,
              also known as “Weeze”, stabbed Jeffrey Thompson
              (“Thompson”) inside of the Carrie Turner Memorial Park
              located at 13th and Poplar Streets in the City and County of
              Philadelphia.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c) and 907, respectively.
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          Prior to the incident, Aaron Warren “Warren” was in the
          park with two (2) other friends when Thompson and
          another friend arrived. The five (5) males were rapping
          and giving each other feedback on their performances.
          During this time, Appellant arrived alone. Both Appellant
          and Thompson were known to Warren. Appellant began to
          perform his own rap. An argument broke out between
          Thompson and Appellant because Thompson did not want
          to hear Appellant’s rap. Thompson told Appellant to get
          out of his face. Warren stepped between Appellant and
          Thompson in order to break up the argument. Thompson
          then took off his jacket. [Thompson calmed down, said he
          was going to leave, and went to grab his jacket. See N.T.
          Jury Trial, 10/14/14, at 137.] Appellant kicked the jacket
          [, said “I’ll kill you out here,”] and a fight broke out
          between Appellant and Thompson.           Thompson and
          Appellant fell into the nearby shrubs and began tussling.
          The fight ended when Thompson walked out of the shrubs
          and said “I’m stabbed.” Thompson, who was bleeding,
          was holding his stomach/chest area when he exited the
          shrubs, and he fell to the ground. Appellant ran away
          from the park.

          Sergeant Stanley Sanford (“Sergeant Sanford”) responded
          to a radio call which directed him to the park. He and his
          partner arrived within a minute of receiving the radio call
          and observed a black male lying on the ground bleeding.
          Two (2) other officers were already on location.        No
          weapon was recovered. Thompson was placed into a
          police vehicle and was taken to Hahnemann University
          Hospital where he was pronounced dead at 1:07 A.M.

          The Assistant Medical Examiner Dr. Edwin Lieberman
          testified that the cause of death was multiple stab wounds,
          the fatal wound being a two (2) inch deep wound to the
          left side of the chest which struck the lung and resulted in
          internal bleeding. There was also a 3 ½ inch deep wound
          to the femoral [artery/]vein of the left thigh, [“another
          wound that by itself would be fatal.” N.T. Jury Trial,
          10/14/14, at 90]. Several other, non-fatal wounds were
          also observed during the autopsy. The manner of death
          was found to be homicide.

          Norman Jennings, (“Jennings”) testified that he was sitting
          in a vehicle which was parked at Broad Street and Girard
          Avenue when he saw a black male cross in front of his
          vehicle. That male went to a nearby trashcan where he
          removed and discarded what appeared to be a bloody T-
          shirt, and asked bystanders for articles of clothing. This
          activity was also captured on a local surveillance camera.
          Sergeant Harold Toomer, (“Sergeant Toomer”) was
          conducting a surveillance of the area when he was flagged
          down by Jennings. Following their discussion, Sergeant


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            Toomer went to the trash can where he discovered what
            appeared to be bloody clothing and a bloody sneaker.

            Crime scene officers took photographs and collected
            evidence at the site of the stabbing and at the trashcans
            where the clothing and sneaker were located. Among the
            items retrieved at the trashcan were a hooded sweatshirt,
            a white T-shirt, an undershirt, a pair of jeans, and a left
            Puma Sneaker. Each of these items was bloodstained. No
            weapon was recovered at either location, however, the
            right Puma sneaker was recovered at the park. DNA
            swabs were taken from the clothing and sneakers.
            Forensic scientist Greg Alstine testified that DNA from
            Appellant was included as a DNA contributor on both
            sneakers and that the DNA from both Appellant and
            Thompson were found on all items retrieved at the
            trashcan, however the blood from the T-shirt and jeans
            was found to be Thompson’s.

Trial Opinion 8/27/2015 at 2-4.

      A jury trial was held from October 14 to October 16, 2014. The jury

found Appellant guilty of murder in the third degree and PIC. Appellant was

found not guilty of murder in the first degree. On February 6, 2015, the trial

court sentenced the Appellant to an aggregate 270 months to 540 months of

incarceration. This appeal followed.

      On appeal, Appellant raises two issues:

            I.     Is [Appellant] entitled to an Arrest of Judgment on
                   the charge of Murder in the Third Degree where
                   [Appellant] acted without malice?

            II.    Is [Appellant] entitled to a new trial where the [trial
                   c]ourt erred as it failed to charge Voluntary
                   Manslaughter and all where the charge was well
                   called for?

Appellant’s Brief at 3.

      Appellant first asserts that he is entitled to an arrest of judgment on

the charge of murder in the third degree, as he did not act with malice.

“The standard of review for the trial court as it passes upon a motion in


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arrest of judgment is limited to a determination of the absence of presence

of that quantum of evidence necessary to establish the elements of the

crime.” Commonwealth v. Bigelow, 611 A.2d 301, 303 (Pa. Super. 1992)

(citation omitted).   “All of the evidence must be read in the light most

favorable to the Commonwealth and it is entitled to all reasonable inferences

arising therefrom. The effect of such a motion is to admit all the facts which

the Commonwealth’s evidence tends to prove.”            Commonwealth v.

Meadows, 369 A.2d 1266, 1268 (Pa. 1977).               “When reviewing for

sufficiency of the evidence, this Court may not substitute its judgment for

that of the factfinder; if the record contains support for the verdict, it may

not be disturbed.”    Commonwealth v. Marks, 704 A.2d 1095, 1098 (Pa.

Super. 1997).

      “Third degree murder occurs when a person commits a killing which is

neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice.”   Commonwealth v. Kling, 731 A.2d 134,

147 (Pa. Super. 1999).      “Malice is the essential element of third degree

murder.” Commonwealth v. Mercardo, 649 A.2d 946, 955 (Pa. Super.

1994) (citation omitted).   “Malice exists when there is 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.’” Kling, 731 A.2d at 147-48. “The Commonwealth

may prove third degree murder by reasonable inferences drawn from the

circumstances of the killing.” Bigelow, 611 A.2d at 304. Furthermore, such

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“malice may be inferred from the use of a deadly weapon upon a vital part of

the body.”      Mercardo, 649 A.2d at 955 (citation omitted).               “While this

inference is well recognized in our law it will not be permitted to support a

finding    of   malice     where     the       direct   evidence   presented   in   the

Commonwealth’s case proves the contrary.” Commonwealth v. Caye, 348

A.2d 136, 137 (Pa. 1975).

       Appellant argues that there was direct evidence refuting the inference2

of malice.      This argument hinges on Thompson punching the Appellant;

consequently, there was no malice on the part of the Appellant. Appellant

characterizes the series of events as Thompson becoming aroused, i.e.,

“That it was [Thompson] who had his blood pumping.                       That it was

[Thompson] who took off his jacket and was ready to fight.”                 Appellant’s

Brief at 10.       The problem with this characterization is that Appellant

completely ignores subsequent events.                   Aaron Warren testified that

Thompson calmed down, said he was going to leave, and went to pick up his

jacket.   See N.T. Jury Trial, 10/14/14, at 137.             It was at this point that

Appellant kicked the jacket and said, “I’ll kill you out here.” Id. After this,

Appellant and Thompson tussled in the bushes during which Thompson

asked, “[A]re you trying to stab me bro[?]”                Id. at 137-38.   Thompson

proceeded to let go of Appellant, walked over to Warren, and said, “I’m

____________________________________________


2
  The inference of malice derives from Appellant’s use of a deadly weapon on
a vital part of Thompson’s body.



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stabbed.” Id. at 138. The testimony of Dr. Edwin Lieberman, the assistant

medical examiner, established that Thompson was stabbed five times, twice

piercing vital organs.3 Id. at 84-90.

        This Court must look at all evidence in the light most favorable to the

verdict winner. Meadows, 369 A.2d at 1268.              As discussed above, there

was sufficient evidence to show that Appellant acted with malice when he

announced he would kill Thompson, and then stabbed Thompson five times,

including twice in vital organs. The record contains adequate support for the

verdict; therefore, we will not disturb it. Appellant’s first claim fails.

        Next, the Appellant asserts that the trial court erred when it failed to

provide a charge of voluntary manslaughter. Pursuant to Pennsylvania Rule

of Criminal Procedure 647, “No portions of the charge nor omissions from

the charge may be assigned as error unless specific objections are made

thereto before the jury retires to deliberate.”             Pa.R.Crim.P. 647(C).

Furthermore, “the mere submission and subsequent denial of proposed

points for charge that are inconsistent with or omitted from the instructions

actually given will not suffice to preserve an issue, absent a specific

objection or exception to the charge.”           Commonwealth v. Pressley, 887

A.2d 220, 225 (Pa. 2005). In the matter sub judice, counsel for Appellant

requested a jury instruction on voluntary manslaughter; however, he did not

____________________________________________


3
    In this case, the vital organs are the lung and femoral artery.




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register an objection pursuant to Pa.R.Crim.P. 647(C) before the jury retired

to deliberate. See N.T. Jury Trial, 10/15/14, at 97, 109, 155. Accordingly,

we conclude Appellant’s claim was not adequately preserved for appellate

review and is waived.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016




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