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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                    v.                       :
                                             :
NICHOLAS ROLL,                               :          No. 1945 EDA 2013
                                             :
                         Appellant           :


          Appeal from the Judgment of Sentence, October 26, 2012,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0009671-2010


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED FEBRUARY 13, 2015

      Appellant, Nicholas Roll, appeals nunc pro tunc from the judgment of

sentence entered in the Court of Common Pleas of Philadelphia County.

Following a jury trial, appellant was found guilty of third degree murder,

18 Pa.C.S.A. § 2502(c), and two violations of the Uniform Firearms Act

(“VUFA”), 18 Pa.C.S.A. §§ 6106 and 6108. On October 26, 2012, appellant

was sentenced to an aggregate term of incarceration of 25 to 50 years. We

affirm.

      The   facts   of   this   case   are   as   follows.   On   May   2,   2010,

Deborah Michelle Adams was working the door at the Top Cat Club, a lounge

owned by her brother, John Adams (“Adams”), on the 5000 block of

North Fifth Street in Philadelphia. On the night in question, Ms. Adams was

collecting money at the door for a comedy show that was taking place at the
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club. (Notes of testimony, 6/8/12 at 6-7.) She testified that while she was

collecting money, her brother went outside to walk a barmaid to her car.

(Id. at 7.)     Ms. Adams was ready to go to the front of the bar when

Pamela White came in and said, “[Adams] got shot.” (Id. at 8.) Ms. Adams

ran outside and waited with her brother for the police and an ambulance to

arrive. (Id. at 8-9.)

        Yolanda Bowen, a patron at the club, testified she went outside to

smoke a cigarette and saw appellant and Brent Dixon in the doorway. (Id.

at 17-18.) At one point, she heard Adams ask the two to move away. (Id.

at 18.) She testified that appellant and Dixon asked her what was going on

inside, and she told them there was a show. (Id. at 19.) They asked her

how much it was to get in and she replied, $20. (Id.) According to Bowen,

they did not go in. (Id.)

        Pamela White testified she was present at the shooting. She testified

she saw Adams walking a woman to her car. She heard a shot. She turned

and heard Adams say, “I don’t have no [sic] money. I told you I don’t have

no [sic] money.”     (Id. at 53.)   She turned around again and saw a male

wearing a baseball cap fire another shot. (Id.) She did not see his face.

(Id.)    According to White, she ran one way and the shooter ran another

way. (Id.)

        Christian Patrick, a relative of Dixon, was present during the shooting.

When called to testify at the trial, Patrick claimed he could not remember



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anything about the shooting. A signed statement he made nine days after

the shooting was read into the record.        In that statement, Patrick said he

saw the shooter, appellant, whom he knew as “Pooch,” call Dixon over and

say to him, “The bull is in the bar right now.”          (Id. at 154.)   Pooch and

Dixon then walked towards the bar. (Id.) Patrick saw Adams outside the

bar, and Pooch started talking to Adams. (Id. at 156.) Dixon came over

and the three stood forming a triangle.          (Id.)     Pooch grabbed Adams’

pocket, and Adams pushed him away.             (Id. at 156-157.)     According to

Patrick’s statement, Pooch raised a gun and fired at Adams. (Id. at 157.)

Adams started falling and Pooch fired again. (Id.) After the second shot,

Patrick stated, “I was out of there.” (Id.)

      Detective Thorsten Lucke testified that he obtained a surveillance

video of the shooting taken from a video camera positioned at a nearby

grocery store located at 5008 North Fifth Street. The video was played for

the jury in real time and in slow motion.            Both appellant and Dixon

stipulated that the images seen on the video were of Adams and them. (Id.

at 63-68.)

      Dr. Marlon Osbourne, an assistant medical examiner, testified that

Adams received two gunshot wounds. One bullet went through his left arm

into his chest. (Notes of testimony, 6/7/12 at 65-66.) The second bullet,

which Dr. Osbourne testified was lethal, entered the left side of Adams’

abdomen and penetrated both the small and large intestines.              (Id. at 66,



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68.) Emergency surgery was performed to remove Adams’ bowel. (Id. at

64.) Subsequently, Adams developed an infection that was uncontrollable.

(Id.)    His kidneys failed; he went into cardiac arrest several times and

eventually died on May 10, 2012, approximately one week after the

shooting. (Id. at 62, 64.)

        When appellant was arrested on May 25, 2010, he was in possession

of a .45 caliber handgun loaded with nine rounds.        (Notes of testimony,

6/8/12 at 180-182.) Police Officer Jesus Cruz, a ballistics expert, testified

that he examined the gun recovered from appellant, along with the fired

cartridge casings recovered from the crime scene and the bullets recovered

from Adams.      He determined the gun recovered from appellant was the

murder weapon. (Notes of testimony, 6/11/12 at 36.)

        Appellant testified at trial and admitted to shooting Adams, but denied

his motive was robbery. (Id. at 156.) He testified he bumped into Adams

on the street several days earlier and they exchanged words. (Id. at 161.)

On the night of the shooting, appellant claimed he shot Adams when Adams

was “fidgeting as if he had a weapon under his shirt.”          (Id. at 172.)

According to appellant, Adams’ allegedly threatening action took place out of

the view of the surveillance camera. (Id.) Appellant claimed that after first

shooting Adams in the stomach, he searched Adams’ waistband looking for a

gun. (Id. at 178-180.) Appellant further testified that he believed Adams

was still capable of harming him, so he shot him again in the arm and fled.



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(Id. at 182.)    On cross-examination, appellant admitted Adams was

unarmed. (Id. at 206-207.)

     On June 12, 2012, the jury convicted appellant of third degree murder,

possessing a firearm not to be carried without a license, and carrying a

firearm on public streets or public property in Philadelphia. Appellant was

sentenced to an aggregate term of incarceration of 25 to 50 years. Timely

post-sentence motions were filed and denied.      No direct appeal was filed.

Subsequently, a timely petition for post-conviction relief was filed seeking

reinstatement of appellant’s direct appeal rights. The petition was granted,

and the instant appeal nunc pro tunc followed. Appellant complied with the

trial court’s order to file a Rule 1925(b) statement of errors complained of

appeal.1

     Appellant first argues the evidence was not sufficient to sustain his

conviction for third degree murder.     Specifically, appellant contends the

Commonwealth failed to prove he acted with malice.

     Prior to addressing this issue, we will recite our standard of review:

           The standard we apply in reviewing the sufficiency of
           the evidence is whether viewing all the evidence
           admitted at trial in the light most favorable to the
           verdict winner, there is sufficient evidence to enable
           the fact-finder to find every element of the crime
           beyond a reasonable doubt. In applying the above
           test, we may not weigh the evidence and substitute
           our judgment for the fact-finder. In addition, we

1
  Appellant raised four issues in his Pa.R.A.P. 1925(b) statement that were
addressed by the trial court. On appeal, appellant raises only two of those
claims. Thus, the other issues have been abandoned on appeal.


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           note that the facts and circumstances established by
           the Commonwealth need not preclude every
           possibility of innocence. Any doubts regarding a
           defendant’s guilt may be resolved by the fact-finder
           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.           The
           Commonwealth may sustain its burden of proving
           every element of the crime beyond a reasonable
           doubt by means of wholly circumstantial evidence.
           Moreover, in applying the above test, the entire
           record must be evaluated and all evidence actually
           received must be considered. Finally, the trier of
           fact while passing upon the credibility of witnesses
           and the weight of the evidence produced, is free to
           believe all, part or none of the evidence.

Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.Super. 2008),

appeal denied, 980 A.2d 606 (Pa. 2009), quoting Commonwealth v.

Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006).

      “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. Tielsch, 934 A.2d 81,

94   (Pa.Super.   2007),   appeal   denied,   952   A.2d   677    (Pa.   2008),

cert. denied, 555 U.S. 1072 (2008) (citation omitted).           “Malice is not

merely ill-will but, rather, wickedness of disposition, hardness of heart,

recklessness of consequences, and a mind regardless of social duty.”

Commonwealth v. Hardy, 918 A.2d 766, 774 (Pa.Super. 2007), appeal

denied, 940 A.2d 362 (Pa. 2008). “Malice may be inferred from the use of

a deadly weapon on a vital part of the victim’s body.” Commonwealth v.




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Gooding, 818 A.2d 546, 550 (Pa.Super. 2003), appeal denied, 835 A.2d

709 (Pa. 2003).

     Appellant contends the Commonwealth did not demonstrate malice as

this was a situation where appellant “took care as to where to shoot

[Adams].” (Appellant’s brief at 8.) Appellant contends he is entitled to an

arrest of judgment because he did not shoot Adams in the head or in the

chest. (Id.)

     There is no doubt in this matter that the Commonwealth proved

appellant killed the victim with malice.   In Commonwealth v. Briggs, 12

A.3d 291 (Pa. 2011), appellant shot two deputies. One of the deputies was

shot at close range in the chest and abdomen.         In discussing whether

appellant shot the deputy with the intent to kill with malice, our supreme

court opined, “The chest and abdomen house the human body’s chief

circulatory and digestive organs, as well as a network of vital arteries and

veins which supply them and, thus, are vital areas of the body.” Id. at 307.

Instantly, when viewed in the light most favorable to the Commonwealth,

the evidence demonstrates that appellant shot Adams through the left side

of his abdomen, a vital part of the body, with a deadly weapon; such is

sufficient to permit an inference of malice necessary for murder in the third

degree.

     Next, appellant challenges the weight of the evidence.      Specifically,

appellant argues he should be awarded a new trial because the evidence



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only established that appellant was in some fear and acted out of fear and

not out of malice. (Appellant’s brief at 9.)

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence. Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the
            evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against
            the weight of the evidence and that a new trial
            should be granted in the interest of justice.

                    This does not mean that the exercise of
            discretion by the trial court in granting or denying a
            motion for a new trial based on a challenge to the
            weight of the evidence is unfettered. In describing
            the limits of a trial court’s discretion, we have
            explained[,] [t]he term ‘discretion’ imports the
            exercise of judgment, wisdom and skill so as to
            reach a dispassionate conclusion within the
            framework of the law, and is not exercised for the
            purpose of giving effect to the will of the judge.
            Discretion must be exercised on the foundation of
            reason,     as   opposed    to    prejudice,  personal
            motivations, caprice or arbitrary actions. Discretion
            is abused where the course pursued represents not
            merely an error of judgment, but where the
            judgment is manifestly unreasonable or where the
            law is not applied or where the record shows that the
            action is a result of partiality, prejudice, bias or
            ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

removed) (citations omitted).




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      Appellant essentially reasserts his sufficiency of the evidence claim.

He contends that his testimony reflects he was not “mean-spirited or

ill-willed on the night in question but simply trying to get away from an

individual who he perceived as meaning him harm.” (Appellant’s brief at 9.)

Appellant further contends that even if he was wrong that Adams meant him

harm, that does not prove he acted with malice. (Id. at 9-10.)

      Obviously, the jury rejected appellant’s claim that he feared Adams

was going to harm him. The jury heard testimony that Adams stated that

he did not have any money and saw a video of the shooting.           The guilty

verdict was consistent with the evidence. Accordingly, the trial court did not

abuse its discretion in denying appellant’s post-sentence motion for a new

trial based on the weight of the evidence. Appellant is not entitled to relief.

      The judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2015




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