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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TRENT ALAN TOLENE                          :
                                               :   No. 2096 MDA 2016
                       Appellant               :

            Appeal from the Judgment of Sentence December 1, 2016
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003679-2013,
                                          CP-22-CR-0004385-2014


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                 FILED APRIL 11, 2018

        Trent Alan Tolene appeals from the judgment of sentence entered in the

Dauphin County Court of Common Pleas. On appeal, he solely challenges the

sufficiency of the evidence. We affirm.

        During Appellant’s two-day bench trial, the Commonwealth presented

extensive circumstantial evidence to show Appellant murdered his father,

James Tommor, in a motel room. The trial court found him guilty of third-

degree murder, tampering with evidence, and theft of leased property.1 The

court later sentenced him to 5½ to 40 years’ incarceration on the murder

conviction. Appellant filed a timely notice of appeal, and complied with the

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502(c); 4910(1); and 3932(a), respectively.
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dictates of Rule 1925(b). This appeal is now properly before us.

      Appellant only challenges the sufficiency of the evidence to sustain his

conviction for third-degree murder. Our standard of review for a challenge to

the sufficiency of the evidence is to determine whether, when viewed in a light

most favorable to the verdict winner, the evidence at trial and all reasonable

inferences therefrom are sufficient for the trier of fact to find that each

element of the crimes charged is established beyond a reasonable doubt. See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003).

      “[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See Commonwealth

v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we

do not assess credibility nor do we assign weight to any of the testimony of

record.” Id. (citation omitted). Therefore, we will not disturb the verdict

“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.” Bruce,

916 A.2d at 661 (citation omitted). Evidence is weak and inconclusive “[w]hen

two equally reasonable and mutually inconsistent inferences can be drawn

from the same set of circumstances….” Commonwealth v. Woong Knee

New, 47 A.2d 450, 468 (Pa. 1946). However, “[t]he Commonwealth may

sustain its burden of proving every element of the crime beyond a reasonable




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doubt by means of wholly circumstantial evidence.” Commonwealth v.

Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations omitted).

      Appellant argues the Commonwealth presented no evidence to prove

precisely when the murder occurred. Appellant concedes the evidence

demonstrates Mr. Tommor was killed in Appellant’s motel room, but he

indicates no witnesses saw or heard the killing. Appellant calls attention to the

inconclusive results of the DNA tests done on Appellant’s own clothing; while

these tests indicated Appellant’s shirt had human blood on it, the tests did not

prove or disprove that it was Mr. Tommor’s blood. Appellant admits he lodged

in the motel during the week of April 10, 2013, but he complains the

Commonwealth cannot prove that he was present in the motel room at all

times during the rental period. This, Appellant declares, means he may not

have been present when Mr. Tommor was killed and removed from the room

at some point during the week. Appellant concludes the Commonwealth failed

to present sufficient evidence to support his conviction for third-degree

murder. We disagree.

      “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. Morris, 958 A.2d 569, 576

(Pa. Super. 2008) (citations omitted). The Pennsylvania Supreme Court has

“consistently held that malice is present under circumstances where a

defendant did not have an intent to kill, but nevertheless displayed a conscious

disregard for an unjustified and extremely high risk that his actions might

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cause death or serious bodily harm.” Commonwealth v. Packer, 168 A.3d

161, 168 (Pa. 2017) (citations omitted).

      Appellant leans heavily on the circumstantial nature of the evidence in

this case to bolster a flimsy argument. Unfortunately, Appellant misconstrues

circumstantial evidence to signify a complete lack of evidence. That is not the

case here.

      At trial, the Commonwealth presented evidence that Mr. Tommor,

reserved and paid in advance for Appellant’s weeklong stay at the Days Inn

motel in Dauphin County. See N.T. Trial, 10/3/16, at 12. Mr. Tommor also

rented a vehicle during the same week, though Appellant was not listed as an

authorized driver of that car. See id., at 84-85. Appellant checked into the

motel on April 10, 2013. See id., at 12. Hotel workers cleaned the room twice,

but Appellant frequently had a “do not disturb” sign on his doorknob. Id., at

16. Consequently, hotel staff did not clean Appellant’s room during the last

few days of his stay. See id. On April 17, the day Appellant was scheduled to

check out of the motel, a maintenance worker came to check on the room.

See N.T. Trial, 10/4/16, at 21. The worker knocked on the door; hearing

nothing, he used his key card to unlock it. See id., at 22. After opening the

door, he noticed the room was completely dark. See id. Because of the light

from the hallway, he could see Appellant lying fully clothed on top of one of

the beds. See id. The worker excused himself and left the room. See id., at

23.




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      Appellant checked out of the motel on the following morning. See N.T.

Trial, 10/3/16, at 12. The front desk clerk inquired about Appellant’s stay and

the condition of the room; Appellant described the room as “great,” and left

the motel. Id., at 12. A few hours later, a housekeeper entered the room and

noticed a large swatch had been cut out of the carpet. See id., at 20. The hole

revealed a dark-colored padding beneath the carpet. See id., at 22. She

alerted the maintenance worker who had checked on Appellant’s room the

previous day. See id. The worker realized the padding underneath the carpet

was stained with blood, and he called the police. See N.T. Trial, 10/4/16, at

25. The responding officers searched the area around the Days Inn, but were

unable to find additional evidence. See N.T. Trial, 10/3/16, at 87. Based on

the suspicious circumstances, the police issued an alert to officers to be on

the lookout for Appellant and the rental car, which had not been returned and

was overdue. See id., at 29.

      A police officer patrolling a nearby interstate highway spotted Appellant

driving the rental car. See id. The officer pulled Appellant over and ordered

him to step out of the vehicle. See id. Appellant appeared to be intoxicated,

and had a large bruise the size of a dollar bill on his arm. See id., at 31.

Appellant also had blood on his shirt. See N.T. Trial, 10/3/16, at 36. Appellant

was arrested and to the police department. See id., at 30.

      At the station, police processed the contents of the rental car. See N.T.

Trial, 10/3/16, at 57. Among other items, they found an envelope with

$2,900.00 in cash; several bags and boxes containing clothing, canned goods,

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tools; Mr. Tommor’s wallet, with his bank cards, driver’s license, social

security card, and paperwork for the rental car inside; jewelry; two cell

phones; and keys to one of Mr. Tommor’s vehicles. See id., at 57-64. Though

they were unable to confirm that it was Mr. Tommor’s blood on Appellant’s

shirt, officers did discover dried blood on the underside of one of the boxes

found in the vehicle. See id., at 73. At trial, the parties stipulated the blood

on the bottom of the box was Mr. Tommor’s, and the carpet fibers also found

on the box were from the motel room where Appellant stayed. See id., at 74-

75.

      Police returned to the Days Inn after arresting Appellant. See N.T. Trial,

10/3/16, at 88. While searching behind the motel, they discovered a gray tarp

near a storage shed, with cinder blocks stacked on top. See id. They raised

the tarp, and discovered Mr. Tommor’s body inside. See id. Following an

autopsy, the coroner found that Mr. Tommor was repeatedly “pile-driven” into

the ground, which crushed his spinal cord and caused paralysis. N.T. Trial,

10/4/16, at 9. The coroner also opined that Mr. Tommor was strangled. See

id., at 10. He concluded complications due to multiple traumatic injuries

caused Mr. Tommor’s death. See id., at 11. At the conclusion of the

Commonwealth’s case, the defense declined to present any witnesses. See

id., at 35.

      After considering that significant array of circumstantial evidence, we

easily find the Commonwealth presented sufficient evidence to support

Appellant’s third-degree murder conviction. Taken in the light most favorable

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to the Commonwealth as the verdict winner, the facts and circumstances of

this case plainly show Appellant inflicted these injuries on Mr. Tommor. And

the nature of the wounds demonstrates that Appellant consciously disregarded

the risk that Mr. Tommor would be killed or seriously harmed by the inflicted

injuries. See Packer, 168 A.3d at 169. Thus, the Commonwealth proved both

that Appellant killed Mr. Tommor, and that Appellant acted with the requisite

malice to constitute third-degree murder. Accordingly, we affirm Appellant’s

judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2018




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