J-S65006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL ELLIOTT

                            Appellant                  No. 2064 EDA 2013


         Appeal from the Judgment of Sentence Entered March 5, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005442-2010


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED DECEMBER 15, 2014

        Appellant, Michael Elliott, appeals from the judgment of sentence

entered March 5, 2013, by the Honorable Lillian Harris Ransom, Court of

Common Pleas of Philadelphia County. We affirm.

        The trial court summarized the facts of this case as follows.

               These charges arose out of an incident that occurred on
        April 7, 2010, at approximately 2:00 AM. Earlier that morning,
        the decedent, Rachel Marcelis (“Marcelis”)[,] and her friend, Gina
        Fehr (“Fehr”)[,] were sitting in Fehr’s car smoking marijuana,
        outside at Fat Pete’s Bar in Northeast Philadelphia. As they were
        smoking, Fehr’s boyfriend, David DiPersio (“DiPersio”)[,] and
        [Elliott] came to the car and began chatting with Fehr and
        Marcelis. DiPersio and [Elliott] got into Fehr’s car and sat in the
        driver’s seat and passenger[’]s seat, respectively. Fehr then sat
        on DiPersio’s lap while Marcelis sat leaning against the
        dashboard of the car on [Elliott’s] lap, with the doors open. The
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S65006-14


        four (4) individuals smoked marijuana and as they did, [Elliott]
        pulled out a gun. Fehr asked [Elliott] to put the gun away and
        [Elliott] stated that he was licensed to carry. [Elliott] then
        removed the clip from the gun and the gun was fired. Marcelis
        was hit with one (1) bullet to the chest and immediately asked
        the others to call [911]. After seeing Marcelis hit, [Elliott] got
        out of the car, causing Marcelis to fall into the street, and ran to
        his mother’s house at 6123 Hegerman Street in Wissinoming.
        Upon arriving at his mother’s house, [Elliott] went to the
        basement and changed his clothes. [Elliott] then came upstairs
        where he spoke with his mother before Police Officers Andre
        Hudgens (“Hudgens”) and Ashley Johnson (“Johnson”) arrived.
        Hudgens and Johnson questioned [Elliott] regarding the incident
        at his mother’s house and then transported [him] to the
        Homicide Unit.

              Medics responded to the [911] call and Marcelis was
        transported to the Aria Health – Frankford Campus [where she
        was later pronounced dead].

Trial Court Opinion, 11/27/13 at 2-3.

        On January 17, 2013, a jury convicted Elliott of third degree murder,1

possessing a firearm without a license,2 and carrying a firearm on a public

street in Philadelphia.3 On March 5, 2013, the trial court sentenced Elliott to

an aggregate term of 15 to 30 years’ imprisonment.           Elliott filed a post-

sentence motion for reconsideration of sentence, which was denied by

operation of law. This timely appeal followed. Both Elliott and the trial court

have complied with Pa.R.A.P. 1925(a) and (b).

        On appeal, Elliott challenges both the sufficiency and weight of the

evidence in support of his conviction of third degree murder.          Regarding
____________________________________________


1
    18 Pa.C.S.A. § 2502(c).
2
    18 Pa.C.S.A. § 6106.
3
    18 Pa.C.S.A. § 6108.



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J-S65006-14



Elliott’s challenge to the weight of the evidence, we note that “a weight of

the evidence claim must be preserved either in a post-sentence motion, by a

written   motion      before   sentencing,   or   orally   prior   to   sentencing.”

Commonwealth v. Thomson, 93 A.3d 478, 490 (Pa. Super. 2014) (citing

Pa.R.Crim.P. 607).      Failure to do so will result in waiver of the claim on

appeal. See id.

      Instantly, Elliott failed to raise a challenge to the weight of the

evidence to support his conviction either at sentencing or in his post-

sentence motion for reconsideration of sentence filed March 15, 2013.

Therefore, this claim is waived.

      We proceed to examine Elliott’s remaining claim on appeal.              When

determining if evidence is sufficient to sustain a conviction, our standard of

review 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. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011)

(citation omitted).

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,


                                       -3-
J-S65006-14


      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by 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.

Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (quoting

Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)).

“[T]he entire record must be evaluated and all evidence actually received

must be considered.” Stokes, 38 A.3d at 854 (citation omitted).

      Third degree murder is defined as all other murders that are not first

or second degree murder:

      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. Malice
      is not merely ill-will but, rather, wickedness of disposition,
      hardness of heart, recklessness of consequences, and a mind
      regardless of social duty. Malice may be inferred from the use of
      a deadly weapon on a vital part of the victim’s body. Further,
      malice may be inferred after considering the totality of the
      circumstances.

Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013) (citation

omitted).

      With our standard of review in mind, we have examined the certified

record, the briefs of the parties, Judge Ransom’s memorandum opinion, and

the applicable law, and we find that Judge Ransom ably and methodically

addressed Elliott’s challenge to the sufficiency of the evidence.    We agree

with the court that the evidence established that Elliott acted with the malice



                                     -4-
J-S65006-14



required for third degree murder in recklessly brandishing a loaded weapon

in a car occupied by three other people, regardless of whether or not Elliott

intended to harm the decedent. See Commonwealth v. Seibert, 622 A.2d

361, 365 (Pa. Super. 1993) (“An intentional act which indicates recklessness

of consequences and a mind regardless of social duty is sufficient, even if

there was no intent to harm another.”). Accordingly, we affirm on the basis

of Judge Ransom’s memorandum opinion.            See Trial Court Opinion,

11/27/14 at 3-5.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




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                                                                                            f\LED
                                                                                              NOV 2 ~ 2013
               IN THE COURT OF COMMON PLEAS OF PHILADELPIDA                . ~Jnli
                   ~IRST JUDICIAL DISTRICT OF PENNSYLVANIACrim\n~\.~POP:~;~~1 i~~i p/.I
                     I     CRIMINAL TRIAL DIVISION       first JUd\Cla, kh V '
COMMONWEALTFI OF                                                   CP-51 -CR-0005442-2010
PENNSYLVANIA
                             CP-51-CR-0005442-2010 Comm. v. Elliott, Michael
                                               Opinion



v.
                                  11111111111111 11111111111
MICHAEL                                    7090085241
ELLIOT,
APPELLANT                                                          SUPERIOR CT : 2064 EDA 2013

                                                    OPINION

RANSOM, 1.                                                                     November 27, 2013



       On January 17, 2013 , Appellant, Michael Elliot, was found guilty, by a jury sitting before

this Court, of one (1) count of third degree murder, a felony of the first degree; one (1) count of

Violating the Uniform Firearms Act ("VUFA") § 6106, a felony of the third degree; and, one (1)

count ofVUFA § 61Q8 , a misdemeanor of the first degree . On March 5, 2013 , this Court
                     I

                                                                                    rd
sentenced the appellant to thirteen to twenty-eight (13-28) years for the 3 degree murder

conviction and one to, two (1-2) years incarceration for each VUF A conviction to run

consecutively, for a cumulative sentence of fifteen (15) to thirty (30) years incarceration.


       A timely post lsentence Motion was filed on March 15,2013, and was denied by

operation oflaw on July 16, 2013. On July 18, 2013 , Appellant filed a timely Notice of Appeal.

On August 12, 2013 , after ascertaining that all notes of testimony were available, this Court

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), ordered appellant to file a self-

contained and intelligible statement of errors complained of on appeal. On September 3, counsel
                      I
filed a 1925(b) statement of errors complained of on appeal to this Court.



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In his 1925(b) statement, the appellant raises the following issues:


       (1) The Defendant must receive a new trial on the charges of murder in the third degree

           and related offenses as the Commonwealth failed to prove malice, as this was an

           accidental shooting, where a yOlll1g man was showing off his firearm and accidentally

           shot and killed a female friend . Without malice, there is no murder.

       (2) The Defendant must receive a new trial as the verdict is not supported by the greater

           weight of the evidence, which did not establish malice. The verdict was based on

           speculation, conjecture and sUl111ise, all in violation of Commonwealth vs. Karkaria,

           625 A. 2d 1167 (Pa. 1993).


                                             FACTS


       These charges arose out of an incident that occurred on April 7, 2010, at approximately

2:00 AM. Earlier that morning, the decedent, Rachel Marcelis ("Marcelis") and her friend , Gina

Fehr ("Fehr") were sitting in Feln"s car smoking marijuana, outside of Fat Pete' s Bar in

Northeast Philadelphia. As they were smoking, Fehr' s boyfriend, David DiPersio ("DiPersio")

and Appellant came to the car and began chatting with Fehr and Marcelis. DiPersio and

Appellant got into Feln"s car and sat in the driver's seat and passengers seat, respectively. Fehr

then sat on DiPersio's lap while Marcelis sat leaning against the dashboard of the car on

Appellant ' s lap, with the doors open. The four (4) individuals smoked marijuana and as they
                                 I
did, Appellant pulled out a gun. FeIn' asked Appellant to put the gun away and Appellant stated
                                 I

that he was licensed to carry. Appellant then removed the clip from the gun and the gun was
                                 I
fired. Marcelis was hit with one (1) bullet to the chest and immediately asked the others to call
                      I
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                                                 2
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                                                                                  Circulated 12/02/2014 12:48 PM




9-1-1. After seeing Marcelis was hit, Appellant got out of the car, causing Marcelis to fall into

the street, and ran to his mother's house at 6123 Hegerman Street in Wissinoming. Upon arriving

at his mother's house, Appellant went to the basement and changed his clothes. Appellant then

came upstairs where he spoke with his mother before Police Officers Andre Hudgens

("Hudgens") and Ashley Johnson ("Johnson") arrived. Hudgens and Johnson questioned

Appellant regarding the incident at his mother's home and then transported Appellant to the

Homicide Unit.


           Medics responded to the 9-1-1 call and Marcelis was transported to Aria Health -

Frankford Campus. Marcelis was shocked tlu'ee (3) times during transit and was given six (6)

rounds of ACLS medication before being pronounced dead at 2:45 AM.


                                         LEGAL DISCUSSION

                           l
           The appellant raises two (2) issues on appeal. The first issue is:


The Defendant must receive a new trial on the charges of murder in the third degree and

related offenses as the Commonwealth failed to prove malice, as this was an accidental

shooting, where a young man was showing off his firearm and accidentally shot and killed

a female friend. Without malice, there is no murder.


           Third Degree Murder is defined as all other kinds of murder that are not First or Second

Degree Murder. I The elements of third-degree murder, as developed by case law, are a killing

done with legal malice. Malice, express or implied, is an essential element of murder, and is the

distinguishing factor between murder and the lesser degrees of homicide. Commonwealth v.

MacArthur, 427 Pa. Super. 409, 413,629 A.2d 166,167(1993). In order to prove that a

I   See [8 Pa.C.S .A. § 2502(c)

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defendant is guilty of third degree murder, the Commonwealth must establish that the defendant

acted with malice. Commonwealth v. Martin, 433 Pa. Super. 280, 640 A.2d 921 (1994). Malice

exists where there is a particular ill-will and where "there is a wickedness of disposition,

hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless

of social duty." Commonwealth v. Bigelow, 416 Pa. Super. 449,454,611 A.2d 301 , 304 (1992),

citing Commonwealuh v. Smouse, 406 Pa. Super. 369, 594 A.2d 666 (1991). Malice may be

inferred from the attending circumstances of the act resulting in the death. One such

circumstance is evidence that the defendant used a deadly weapon upon a vital part of the

victim's body; this inference alone is sufficient to establish malice. Commonwealth v. Lee, 426

Pa. Super. 345 , 350, 626 A.2d 1238, 1241 (Pa. Super. 1993). An intentional act indicating

recklessness of consequences and disregard of social duty is sufficient, even if there was no

intent to harm another, for finding of third degree murder. Com. v. Seibert, 424 Pa. Super. 242,

622 A.2d 361 (1993) .


       In the instant matter, the Commonwealth presented sufficient evidence to find the

Appellant acted with the malice required for third degree murder. Appellant gave a statement to

the police, which was read into the record by Detective James Burns. (N.T. 1116/13, 50-71). In

his statement, Appel.lant stated he was with Marcelis and her friends the night Marcelis was

killed. (N.T. 1/16/13 at 63). He stated he had the gun in his possession, took the magazine     Ollt,


and after doing so, the gun went off. (Id.). Appellant stated that Marcelis was sitting partially in

his lap when she was shot. (N.T. 1/16/13 at 64). In his statement, when asked whose gun was

used to kill Marcelis, k ppellant stated "I had it with me because I was robbed Sunday by my

boys and they threatened me and my family." (N.T. 1116/13 at 65). Appellant also stated that he

saw Marcelis fall, panicked, and ran to his mother's house. (N.T. 1/16/13 at 63). Appellant


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stated that when he arrived at his mother' s house, he went to the basement, changed his clothes,

and then the police aL ived. (N.T. 1116/13 at 66). In Seibert, the Appellant contended that he

should not have been found guilty because he was friends with the decedent, had no ill will

towards the decedenn, and did not intend to kill the decedent. The Superior Court ruled that the

intentional act of pOiL ing the gun at the decedent was sufficient to find legal malice necessary

for third degree murder because Appellant Seibert's intentional act showed recklessness of

consequences and disregard for social duty, components of legal malice. Seibert is very similar

to the instant matter. While Appellant may not have had ill will towards Marcelis, his

brandishing of a gun and handling of the weapon in a confined space with others present was an

intentional act that   e~emplified   recklessness.


        In the instant case, the jury was free to infer the malice necessary to sustain a conviction

for third degree murder based on Appellant's reckless handling of a gun which resulted in the

death of Marcelis.


       The second issue the appellant raises is:


The Defendant must receive a new trial as the verdict is not supported by the greater

weight of the evidence, which did not establish malice. The verdict was based on

speculation, conjecture and surmise, all in violation of Commonwealth vs. Kariml-ia, 625 A.

2d 1167 (Pa. 1993).


       The guilty verdict of murder in the third degree was not against the weight of the

evidence. The standard of appellate review for a claim that the verdict was against the weight of

the evidence is limited to a determination of whether the trial court abused its discretion in

denying the appellant' s post verdict motion i.e. that the fact finder's verdict "shocked the

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conscience." Commonwealth v. Lloyd, 2005 Pa. Super. 236, P12, 878 A.2d 867, 872 (2005).

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or

none of the evidence and to determine the credibility ofthe witnesses. Commonwealth v. Small,

559 Pa. 423,435,741 A.2d 666, 672 (Pa. 1999). A new trial should not be granted because of a

mere conflict in testimony or because the trial judge would have arrived at a different conclusion

on the same facts. Commonwealth v. Brown, 538 Pa. 410, 648 A2d. 1177, 1191 (Pa. 1994).


            In the instant Icase, the jury's verdict of guilty does not shock the conscience. Appellant

cites Commonwealth. v. Karkaria, 533 Pa. 412, 420, 625 A.2d 1167 (1993). In Karkaria, the

PelU1sylvania Supreh1e Court found that the evidence failed to establish that the defendant forced

the victim to submit to sexual intercourse during the dates specified in the indictment as the

victim's testimony was vague, and contradictory, and the Commonwealth failed to present

sufficient evidence linking Appellant Karkaria to the 300 acts of sexual intercourse claimed by

the victim. The pel1lJsylvania Supreme Court ruled that criminal prosecution also requires proof

beyond a reasonable doubt that the accused conm1itted the offense charged at the time specified

within the indictmeFt. Id. at 1170. The instant matter should be distinguished from Karkaria

because the Commonwealth in the present case presented proof beyond a reasonable doubt that

the accused committed the offense.


            The Commonwealth presented the statement of Appellant, in which he admitted holding

the gun as it went off and the bullet hit Marcelis, resulting in her death.2 The Commonwealth

also presented an eye witnesses to the crime, Gina Felu' ("Felu·"). Felli' stated that she and

Marcelis were friendslfor about four (4) months before Marcelis was killed. (N.T. 1115113 at 84).

Felu' testified that while in the car with Appellant, Marcelis, and DiPersio, she told Appellant to

2   See first issue analysis, supra

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put the gun away but that Appellant stated he was licensed to carry. (N.T. 1115113 at 90). Fehr

stated that she watched Appellant take the clip out of the gun and the next thing she remembered

was the "gun going l ff'. (N.T. 1115113 at 90). After the gun was fired, Fehr stated Marcelis

grabbed her chest and Marcelis asked them to call an ambulance. (N.T. 1115113 at 91). Felu'

testified that after Marcelis was shot, Appellant jumped out of the car and Marcelis hit the

ground. (N.T. 1/15113 at 91). Dr. Gary Collins ("Dr. Collins"), Deputy Chief Medical Examiner

at the Philadelphia Medical Examiner's Office also testified on behalf of the Commonwealth.

(N.T. 1116113 at 35). Dr. Collins determined that Marcelis died from a gunshot wound to the

chest, which hit Marcelis ' s aorta resulting in internal bleeding, and ruled the manner of death

homicide. (N.T. 1116113,42-44) . Therefore, the verdict of guilty in the instant matter does not
                     I
shock the conscience.
                     I



                                             CONCLUSION

               For tl~e reasons set forth above, the decision of this Court should be affirmed.




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Re:    Commonwealth vs. Michael Elliot
       CP-SI-CR-000S442-2010
       2064 EDiA 2013

TYPE: OPINION

                                PROOF OF SERVICE

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


Defendant:             Michael Elliot
                       KY-5825
                       SCI Frackville
                       1111 Altamont Boulevard
                       Frackville, PA 17931-2699

Type of Service:       ( ) Personal Service ( ) First Class Mail   (X) Other: Celiified
                       Mail

Defense Counsel:       Lee Mandell, Esquire
                       Suite 1312
                       42 S. 15 th Street
                       Philadelphia, PA 19102

Type of Service:       ( ) Personal Service (X) First Class Mail ( ) Other: _ _ __


District Attorney:     Hugh 1. Burns Jr. , Esquire
                       Philadelphia District Attorney' s Office
                       Widener Building - Tlu'ee South Penn Square
                       Philadelphia, PA 19102


Type of Service:   I () Personal Service    (X) First Class Mail ( ) Other: _ _ __

Date: November 27.2013




. lIe A. JOhnSOl I
Law Clerk to Hon. Lillian H. Ransom
