J-A29019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

JOHNATHAN KEITH GODINES,

                            Appellant                           No. 1904 WDA 2013


       Appeal from the Judgment of Sentence entered October 17, 2013
               in the Court of Common Pleas of Fayette County,
            Criminal Division, at No(s): CP-26-CR-0000524-2012


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                                  FILED DECEMBER 1, 2014

        Johnathan Keith Godines, (“Appellant”), appeals from the judgment of

sentence     imposed     following    his   conviction    for    third   degree   murder,

aggravated assault1, and other related offenses.                  Because we find that

Appellant’s aggravated assault conviction merged with his third degree

murder conviction, we vacate the judgment of sentence as to aggravated

assault only, and affirm the judgment of sentence in all other respects.

        The trial court presented the facts relative to this action as follows:

             [T]he trial evidence establishes that the crimes occurred
        on November 15, 2011 in the city of Brownsville, Fayette
        County, Pennsylvania.    [Appellant], wearing a dark colored
        hooded sweatshirt, was observed by several trial witnesses as he
        approached the now-deceased victim as the latter sat in the
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c) and 2702(a)(1), respectively.


*Retired Senior Judge assigned to Superior Court.
J-A29019-14


     driver's seat of his car, which was parked curbside along a street
     in Brownsville. Loud apparent arguing attracted the attention of
     Commonwealth witnesses Megan Boger and Tabitha Zieglar, who
     each testified that they observed [Appellant] kicking the side of
     the victim's car six or seven times. N.T. pp. 30, 45-46, 49, 56-
     57.

           Each witness then saw [Appellant] open the driver's door
     of the victim's car and drag the victim out to the ground, and
     then [Appellant] leaning and shifting his body toward the victim
     in such a way that both of them knew [Appellant] was kicking
     the man on the ground, with force, at least six times. Id. pp.
     23-24, 30-32, 41-42, 45-47. Each of these named witnesses
     then saw [Appellant] walk away. Id. pp. 36-37, 48, 104. The
     women observed the victim get up from the ground and slowly
     pursue [Appellant] around a building and out of their sight. Id.
     pp. 25, 37, 39-40, 48, 59.

            Jerry Abbey, a bartender in the Antique Bar and Grill, in
     front of which business a further altercation took place, also
     testified as a Commonwealth witness. Id. pp. 102-105, 110-
     111. He told the jury that he could see [Appellant], whom he
     knew, kicking and swinging his fists at something approximately
     fifteen times. Id. Three other Commonwealth witnesses, Fawn
     Petrosky and her daughters, Emma and Brianna, testified that
     they saw an elderly man (the victim) cross the street in front of
     them as they were driving through Brownsville. Id. pp. 70, 77,
     82,92-93, and then heard loud argumentative voices which drew
     their attention to the scene behind them. Id. There they could
     see [Appellant] swinging his arm to punch the older victim
     several times. Id. pp. 71-72, 84-85, 93. [Appellant], taller than
     the victim to begin with, appeared to be standing on the street's
     curb so as to be higher up than the victim. Id. p. 85, 94.
     Brianna Petrosky observed the older man trying to protect
     himself by ducking down and putting his hands up over his head,
     while [Appellant] punched downward at him in a chopping
     motion. Id. pp. 94-95. Emma Petrosky then used her cell phone
     to call 9-1-1 to report the incident. Id. p. 85.

             A short time later, witnesses Boger and Zieglar, who were
     still in the area of Brownsville where they had seen [Appellant]
     pull the victim out of his car and kick him in the street, saw the
     elderly victim returning to his car. At that time, they could see
     that he had a split lip and blood on his mouth, as well as a
     scratch on the side of his face and dirt and pebbles on his body.

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J-A29019-14


     Id. pp. 37-38, 49. The victim was limping and appeared to be
     hurt. Id. p. 50. In addition, he was acting as though he was not
     sure what was going on. Id. When the first responding police
     officer, Brownsville police officer Robert Mammarella, arrived on
     the scene, he was able to have a coherent conversation with the
     victim, but his condition noticeably deteriorated before the
     ambulance arrived. Id. p. 190. The victim was transported to a
     hospital in Pittsburgh, Id., where he died on December 1, 2011.
     At trial, the Commonwealth's expert, forensic pathologist Doctor
     Todd Luckasevic, who performed the autopsy on December 2,
     2011, testified that the victim suffered a thalamic hemorrhage
     and associated infarction with superimposed acute hemorrhage.
     Id. p. 238. He went on to opine that the victim likely had an
     adrenaline rush while he was being assaulted, and the
     adrenaline rush caused an increase in his blood pressure which
     in turn led to the thalamic bleed. Id. p. 140. He then said there
     was also an infarction in the back of the brain that cut off the
     blood supply and caused necrosis there, Id. p. 141, 143, which
     occurred when atherosclerotic plaque broke off and lodged in an
     artery, clogging it.     Id. p. 148.      [The victim] contracted
     pneumonia at some point, and the acute cause of death was the
     severe bronchopneumonia. Id. p. 150.

           Nevertheless, Doctor Luckasevic ruled the death a
     homicide based on the chain of events, e.g., the assault caused
     him to be taken to one hospital where he exhibited signs of the
     thalamic hemorrhage, leading to him being life-flighted to Mercy
     Hospital in Pittsburgh, where he was placed on life-supporting
     mechanisms. Id. p. 151. The thalamic bleed caused weakness
     on his left side, which caused the victim to aspirate, in turn
     causing the acute bronchopneumonia. Id. p. 152. The expert
     acknowledged that the victim had a medical history including
     hypertension/high blood pressure, atrial fibrillation for which he
     was prescribed the drug Coumadin, and related changes to the
     heart muscle and the kidneys. Id. pp. 153-154.

Trial Court Opinion, 12/19/13, at 3-5.

     Procedurally, the trial court explained:

          This matter is before the Court as a direct appeal filed by
     [Appellant] … following a jury trial wherein he was found guilty
     on October 10, 2013, of Third Degree Murder at Count I,
     Aggravated Assault at Count II, Simple Assault at Count III,

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      Recklessly Endangering Another Person at Count IV, and lastly at
      Count V, Disorderly Conduct, as the result of a physical
      altercation and the subsequent death of the other participant,
      John Eicholtz [the “victim”].     [Appellant] was sentenced on
      October 17, 2013 at Count 1, Murder in the Third Degree, to a
      term of imprisonment of not less than twenty years nor more
      than forty years, and at Count 2, Aggravated Assault, to a
      concurrent term of not less than ten years nor more than twenty
      years. At Counts 3, 4, and 5, the Court accepted the guilty
      verdicts without the imposition of further penalty.

Id. at 1.

      On October 22, 2013, Appellant filed a post-sentence motion for

modification of sentence in which he averred:

      2. At the time of sentencing, [Appellant] was thirty-seven years
      old, having been born on May 25, 1976.

      3. That [Appellant] believes his sentence is harsh, severe, and
      excessive in view of the circumstances surrounding this matter.

      4. That [Appellant] believes a lesser sentence would meet any
      rehabilitative needs of [Appellant].

      5.     That sentencing [Appellant] to a separate concurrent
      sentence for the crime of aggravated assault when aggravated
      assault is a lesser included offense to third degree murder is an
      illegal sentence.

      6.   That the trial court abused its discretion in sentencing
      [Appellant] to the maximum allowable sentence for the crimes of
      third degree murder and aggravated assault.

      7. That [Appellant] will be fifty-five (55) years old when he
      reaches his minimum sentence and seventy-five (75) years old
      when he reaches his tail.

      8. For all intents and purposes, the Court has given [Appellant]
      a life sentence.

Appellant’s Post-Sentence Motion for Modification of Sentence, 10/22/13, at

1-2. On October 28, 2013, the trial court denied Appellant’s post-sentence


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J-A29019-14



motion for modification of sentence. On November 18, 2013, Appellant filed

a notice of appeal.     Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant presents the following issues for our review:

        I.     WHETHER THE COMMONWEALTH FAILED TO ADDUCE
               SUFFICIENT EVIDENCE AT THE TIME OF TRIAL TO
               SUPPORT THE CONVICTION OF THE APPELLANT FOR THE
               CRIME   OF   THIRD-DEGREE  MURDER    BEYOND    A
               REASONABLE DOUBT OR WHETHER THE CONVICTION
               WAS AGAINST THE WEIGHT OF THE EVIDENCE AS TO THE
               ELEMENT OF MALICE?

        II.    WHETHER THE COMMONWEALTH FAILED TO ADDUCE
               SUFFICIENT EVIDENCE AT THE TIME OF TRIAL TO
               SUPPORT THE CONVICTION OF THE APPELLANT FOR THE
               CRIME   OF   AGGRAVATED    ASSAULT   BEYOND    A
               REASONABLE DOUBT OR WHETHER THE CONVICTION
               WAS AGAINST THE WEIGHT OF THE EVIDENCE AS TO THE
               ELEMENT OF RECKLESSNESS?

        III.   WHETHER THE COMMONWEALTH FAILED TO ADDUCE
               SUFFICIENT EVIDENCE AT THE TIME OF TRIAL TO
               SUPPORT THE CONVICTION OF THE APPELLANT FOR THE
               CRIME OF THIRD-DEGREE MURDER OR AGGRAVATED
               ASSAULT BEYOND A REASONABLE DOUBT OR WHETHER
               THE CONVICTION WAS AGAINST THE WEIGHT OF THE
               EVIDENCE AS TO THE ELEMENT OF CAUSATION?

        IV.    WHETHER THE TRIAL COURT ERRED IN REFUSING TO
               DIRECT THE JURY THAT [APPELLANT] DOES NOT "TAKE
               THE   VICTIM  AS  HE   FINDS   HIM"  WHEN   THE
               COMMONWEALTH REPEATEDLY ARGUED THE SAME IN
               CLOSING ARGUMENT?

        V.     WHETHER THE COMMONWEALTH FAILED TO DISPROVE
               THE JUSTIFICATION OF SELF DEFENSE BEYOND A
               REASONABLE DOUBT?

        VI.    WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE
               JURY THAT [APPELLANT] HAD A DUTY TO RETREAT WHEN


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J-A29019-14


             INSTRUCTING THE JURY ON THE JUSTIFICATION OF SELF
             DEFENSE?

      VII.   WHETHER THE TRIAL COURT ERRED IN PERMITTING THE
             COMMONWEALTH TO INTRODUCE AND PLAY FOR THE
             JURY A RECORDED JAIL CONVERSATION BETWEEN THE
             [APPELLANT] AND ANOTHER PARTY?

      VIII. WHETHER THE TRIAL COURT ERRED IN SENTENCING
            [APPELLANT] TO A SEPARATE CONCURRENT SENTENCE
            FOR THE CRIME OF AGGRAVATED ASSAULT WHEN
            AGGRAVATED ASSAULT IS A LESSER INCLUDED OFFENSE
            OF THIRD DEGREE MURDER?

      IX.    WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
             SENTENCING [APPELLANT] TO THE MAXIMUM ALLOWABLE
             SENTENCE FOR THE CRIMES OF THIRD DEGREE MURDER
             AND AGGRAVATED ASSAULT?

Appellant’s Brief at 7-8. Appellant’s first, second, and third issues challenge

the sufficiency and weight of the evidence supporting his convictions, and

therefore, we address them together. Specifically, Appellant contends that

“[t]he Commonwealth failed to adduce sufficient evidence to support a

verdict of guilt for the crimes of Third-Degree Murder and Aggravated

Assault, particularly with respect to the elements of malice, recklessness,

and causation.” Id. at 27.

      In reviewing Appellant’s sufficiency claims, we recognize:

             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 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

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J-A29019-14


      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
      [finder] 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. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (internal

citations omitted).

      In rebutting Appellant’s sufficiency claims, the trial court explained:

              The Court notes that, viewing the evidence in the light
      most favorable to the Commonwealth as verdict winner (see
      Commonwealth v. Watley, __ A.3d __, 2013 WL 6164340 (Pa.
      Super. 2013)), there can be no reasonable doubt that
      [Appellant], using forceful kicks and numerous punches,
      physically assaulted [the victim] after dragging him out of his
      vehicle. By statutory definition, third degree murder is an
      unlawful killing with malice, but lacking the specific intent to kill.
      18 Pa.C.S. § 2502 (c). For purposes of establishing third degree
      murder, malice is not merely ill-will, but encompasses hardness
      of     heart,    wickedness    of   disposition,   recklessness     of
      consequences, and an utter disregard of social duty.
      Commonwealth v. Truong, 36 A.3d 592 (Pa. Super. 2012). The
      requisite malice may be inferred by the jury after consideration
      of the totality of the circumstances. Id. Additionally, as to the
      causation element of the murder, there can be more than one
      direct cause of death. [Appellant’s] actions do not have to be
      the immediate cause of death, if they commenced an unbroken
      chain of events which led to the death of the victim.
      Furthermore, [Appellant], whose conduct is a direct cause of the
      victim's death, as testified to by Doctor Luckasevic, cannot avoid
      liability by reliance on the victim's preexisting physical infirmities
      which may also have contributed to his death. Commonwealth
      v. Paolello, 542 Pa. 47, 665 A.2d 439 (Pa. 1995). There is no
      insufficiency of evidence herein on the third degree murder
      conviction. The lesser included offense of aggravated assault as
      a felony of the first degree is established when the perpetrator

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J-A29019-14


      "attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life." As can be seen in the summary of the evidence
      above, and more fully in the record as a whole, the victim
      suffered serious bodily injury, evidenced by his bloody lip and
      the subdural hemorrhages in his temple area of his head
      observed during the autopsy, whether or not those injuries had
      any causative impact on his subsequent death. The questions of
      [Appellant's] intent to inflict those serious injuries, and/or his
      recklessness in doing so, were properly decided by the jury,
      which also apparently found the circumstances of the infliction of
      the injuries to manifest extreme indifference to the value of [the
      victim’s] life. See Commonwealth v. Spruill, __ A.3d __, 2013
      WL 6134824 (Pa. 2013). The trial evidence is certainly sufficient
      to support [Appellant’s] conviction of aggravated assault.

Trial Court Opinion, 12/19/13, at 5-7.         Our review of the record comports

with the trial court’s presentation of the facts in this case and the trial

court’s   determination   that   there    was    sufficient   evidence   to   support

Appellant’s convictions for third degree murder and aggravated assault.

Indeed, Appellant’s statement to law enforcement and his trial testimony

belie Appellant’s sufficiency challenges.

      Chief Stanley P. Jablonsky, from the Brownsville Police Department,

testified that he was “present for an interview that involved Officer

Mammarella, [and] [Appellant] … that occurred on November 21, 2011[.]”

N.T., 10/8/13, at 230. Chief Jablonsky testified that Appellant was given his

Miranda warnings prior to the interview, and that Appellant “understood”

and “sign[ed]” a “written Miranda waiver form.” Id.

      After refreshing his recollection by reviewing his handwritten notes of

Appellant’s statement, Chief Joblonsky testified that Appellant stated that


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J-A29019-14



“he was not aware of who [the victim] was, but [the victim] had been calling

[Appellant’s and his paramour Amber McDonald’s] cell phone and speaking

to them while they were at West Penn Hospital.”         Id. at 231.       Chief

Joblonsky explained that the calls occurred “approximately one to one and

half months” prior to the interview. Id.

      Chief Jablonsky further testified about Appellant’s statement to law

enforcement as follows:

      [Appellant] said that [the victim] was going to shoot and kill
      [Appellant] on sight and [the victim] … had been bringing Amber
      McDonald cigarettes and money for a couple of months.
      [Appellant] said on the night of the incident that he was sitting
      in front of the Bank Building when he saw [the victim] pull up …
      on High Street, just beyond where he was sitting and did a u-
      turn in the street. And [Appellant] said that at the time [the
      victim] pulled to … his location and flashed a firearm at
      [Appellant]. Then [Appellant] responded in saying that [the
      victim] left that location and pulled to the back of the Bank
      Building and [Appellant] followed the vehicle to the rear of the
      Bank Building. And [Appellant] said when he got there, that he
      started kicking the door and window of the vehicle and opened
      the door and had struck [the victim]. [Appellant] said at the
      time that he thought that [the victim] had enough, so he walked
      away. And [Appellant] had gone toward the Antique [Bar].
      Then [Appellant] said while he was at the Antique [Bar], [the
      victim] had returned to [Appellant’s] location and had walked
      around the Bank Building to the [bar] with his hands up in the
      air, ready to fight. [Appellant] said that at that time he –
      [Appellant] - had struck [the victim] to the face two times,
      knocking him to the ground. [Appellant] said that he thought
      [the victim] started to stand up and [Appellant] couldn’t believe
      that he was getting back up and [Appellant] did kick [the victim]
      to the face, knocking [the victim] to the ground again.

Id. at 231-233.




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J-A29019-14



        On cross-examination, Chief Jablonsky acknowledged that Appellant

“never adopted … or signed” Chief Jablonsky’s handwritten notes of

Appellant’s interview. However, the foregoing testimony viewed in the light

most favorable to the Commonwealth, highlights that Appellant was the

initial aggressor of the physical altercation between Appellant and the victim,

establishes the relentless nature of Appellant’s assault on the victim, and

reinforces that Appellant did not stop until he “knock[ed] [the victim] to the

ground again.”     Id. at 236, 233.    Significantly, the statement shows that

Appellant concluded the fight with the victim with a “kick” to the victim’s

face.    Id. at 233.   Malice, recklessness, and intent concerning Appellant’s

actions vis á vis the victim, as required to support Appellant’s convictions for

third degree murder and aggravated assault, are evident in Chief Jablonsky’s

testimony.

        Appellant’s trial testimony also belies his sufficiency claims. Appellant

testified that he had “contact with [the victim]” in “the time around the birth

of [Appellant’s son] Riley [Godines].” N.T., 10/9/13, at 315. Riley Godines

was born on September 14, 2011.           Id. at 317.   Appellant testified that

“[w]hen my son was born in Uniontown Hospital he had to go to West Penn

[Hospital]. I was down there with him and the nurses patched a phone call

through and it was a man on the phone and he asked for Amber McDonald.

I said that she is not here.     I hung up the phone and he calls back right

away.” Id. at 315-316. Appellant stated that the second call was “the same

voice,” and the caller identified himself as “John.” Id. at 316. The “same

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J-A29019-14



voice” called a third time, and when Appellant subsequently “spoke to

Amber,” she “told [Appellant] that it must have been [the victim] that

called.” Id. According to Appellant, during the third call, the victim called

Appellant a “F’n punk.”   Id. at 317. Appellant stated that the victim then

called Amber McDonald’s cell phone and threatened Appellant by stating: “I

have lived my life, I will just go ahead and kill you … you’re just a fu—in’ no

good punk and … I am going to shoot you on sight.” Id.

        Appellant   further   testified   approximately   six   weeks   later,   on

November 15, 2011, Appellant was “sitting on a stoop” in front of the Bank

Building where he lived. Id. at 319; 314-315. Appellant “recognize[d]” the

victim’s white car “come[] by and slow[] down” and “pull[] a u-turn in the

middle of the road”, which “stopped traffic.” Id. at 319. Appellant testified

that the victim’s car came “to a complete stop” and the victim “gesture[d] …

and had a pistol in his hand.”       Id. at 319-320.      The victim then drove

“behind the Bank Building.” Id. at 320.

      Appellant explained that he “pursue[d] [the victim]” after the victim

“flash[ed] the pistol” at Appellant. Id. Appellant testified that he “want[ed]

to head [the victim] off before he parks the car and gets out with the gun.”

Id. Appellant explained that when he approached the victim, Appellant “was

screaming … [and saying] what the fu-k is your problem.”           Id. Appellant

testified that he “kicked the window [of the victim’s car],” and that the

victim “must have called me a punk fifty times during this altercation.” Id.

at 320-321. Appellant conceded that he “kicked the window and kicked the

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J-A29019-14



door a couple of times[.]” Id. at 321. Appellant further admitted that after

the victim’s car door “gets open, I’m in between the door here and lean in

and strike him and I believe that I caught him in the left side of the cheek

bone there … with my fist.” Id. Appellant acknowledged that he struck the

victim with “[his] fist” approximately “three or four times[.]” Id. Appellant

claimed that he then “retreated to the front of the building” when the

victim’s car began to move forward. Id. at 322. After Appellant reached the

front of the building and crossed to “the other side of the road” on “High

Street,” the victim approached Appellant.      Id. at 323.     Appellant testified

that when the victim came “across the street, I am on top of the sidewalk”

and the victim “comes up on to the sidewalk and into my business. I swing

and hit [the victim] about two times.”       Id. at 324.     After that the victim

grabbed Appellant’s “hoody and [the victim was] going … down and pulling

me down with him … I grab a hold of the hoody … and I want to get free and

that is when I kick him one time in the jaw and then I retreat.”               Id.

Appellant testified that he was “six foot” in height and weighed 205 pounds

at time. Id. at 325.

      On cross-examination, Appellant denied that there was “some reason

that [Appellant] could not retreat” prior to confronting the victim in the rear

of the Bank Building.    Id. at 329.    Significantly, Appellant testified that

“[n]ow that I look back on it, I could have [retreated]. At the time that was

my decision that I made [to follow the victim to the rear of the Bank

Building]. I wish now that I would have [retreated].” Id. Appellant further

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expressed “I made a bad decision.      I chose to go back and confront [the

victim] about the situation and handle it instead of retreating right away. I

made a bad decision by going around the building.” Id. at 338.

      Given the foregoing, we are not persuaded by Appellant’s argument

that he lacked the requisite malice and recklessness to support his

convictions.   Rather, we find that based on Appellant’s own testimony,

Appellant had preexisting acrimonious contacts with and anger toward the

victim, that Appellant initiated a physical confrontation with the victim, a 75

year old male, and that the ensuing fight involved physical blows to the

victim which resulted in a stroke, pneumonia, and death.

      Moreover, applicable case law supports the trial court’s determination

that Appellant’s sufficiency claims lack merit. We have explained:

      Third-degree murder is defined in the Crimes Code as “all other
      kinds of murder” other than first degree murder or second
      degree murder. 18 Pa.C.S. § 2502(c). The elements of third-
      degree murder, as developed by case law, are a killing done with
      legal malice. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d
      1305 (1979). Malice, express or implied, is an essential element
      of murder, Commonwealth v. Commander, 436 Pa. 532, 260
      A.2d 773 (1970), and is the distinguishing factor between
      murder and the lesser degrees of homicide. Commonwealth v.
      Culmer, 463 Pa. 189, 344 A.2d 487 (1975).

      The traditional definition of malice was           set   forth   in
      Commonwealth v. Drum, 58 Pa. 9 (1868):

         Malice is a legal term, implying much more. 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

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        existed, but where the state or frame of mind termed
        malice, in its legal sense, prevailed.

     Id. at 15. See also Commonwealth v. Hilbert, 476 Pa. 288, 382
     A.2d 724 (1978); Commonwealth v. Polimeni, 474 Pa. 430, 378
     A.2d 1189 (1977); Commonwealth v. Green, 464 Pa. 557, 347
     A.2d 682 (1975).

     In Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946),
     the Pennsylvania Supreme Court clarified the concept of malice:

        When an individual commits an act of gross recklessness
        for which he must reasonably anticipate that death to
        another is likely to result, he exhibits that “wickedness of
        disposition, hardness of heart, cruelty, recklessness of
        consequences, and a mind of social duty” which proved
        that there was at that time in him “the state or frame of
        mind termed malice.”

     Id. at 183, 47 A.2d at 447 (quoting Commonwealth v. Drum,
     supra.).

Commonwealth v. MacArthur, 629 A.2d 166, 167-168 (Pa. Super. 1993).

     In MacArthur, we found that the record did not support an inference

of malice, and we reasoned:

           Malice may not be inferred simply from the fact that a
     person “performed a certain act and that act brought about the
     death of another.” Commonwealth v. Reilly, 519 Pa. 550, 549
     A.2d 503 (1988). The case law is clear that a single blow,
     without a weapon, is, ordinarily, not sufficient to establish
     malice. Commonwealth v. Moore, 488 Pa. 361, 412 A.2d 549
     (1980); Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394
     (1950); Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125
     (1950). Whether malice may be inferred where only fists are
     used must depend on the particular circumstances of the case,
     such as the assailant's size, the manner in which the fists are
     used, the ferocity and duration of the attack, and provocation, if
     any. Moore, supra.

          In Commonwealth v. Stehley, 350 Pa.Super. 311, 504
     A.2d 854 (1986), this court found the defendant was not guilty
     of murder but guilty of involuntary manslaughter where he


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     shoved a sixty-two year old man over a porch railing so that he
     hit the ground head first four feet below and died. In the recent
     case of Commonwealth v. Thomas, 527 Pa. 511, 594 A.2d 300
     (1991), the Pennsylvania Supreme Court held that proof of
     defendant's single punch to victim's face was insufficient to
     support a finding of malice required for a third-degree murder
     conviction, even though victim's chronically stiff neck which
     made it difficult for him to turn his head was readily apparent
     and had been a topic of conversation at gathering where
     defendant was present, the assault was unexpected, the punch
     was delivered from victim's “blind side,” and the victim was
     intoxicated.

           In the instant case, the injury was the tragic but
     improbable result of a single push. As in Stehley and Thomas,
     there is nothing in the record here which would support an
     inference of malice leading to a verdict of murder in the third
     degree. Cf. Dorazio, 365 Pa. at 299-300, 74 A.2d at 129
     (“Ordinarily where an assault is made with bare fists only,
     without a deadly weapon, and death results there would only be
     manslaughter.... [W]here the assault is not committed with a
     deadly weapon, the intent must be clearly felonious, or the death
     will subject [the defendant to] only the charge of
     manslaughter.”) The uncontroverted evidence simply does not
     warrant the inference of legal malice which was justified in
     Moore, Buzard and Dorazio, supra, by brutal prolonged,
     ferocious assaults carried out by larger, more powerful
     assailants.

MacArthur, 629 A.2d at 168-169. The lack of malice in MacArthur from

the defendant’s single fatal push of the victim, is distinguishable from the

repetitive and violent actions of Appellant in this case. Here, as in Moore

and Dorazio, the record supports Appellant’s convictions for aggravated

assault and third degree murder because Appellant, a much younger, taller

and heavier individual than the victim, engaged in a physical attack,

spanning two locations, of the 75 year old victim, using fists and feet, and

resulting in the victim’s stroke and subsequent death.


                                   - 15 -
J-A29019-14



      We further reject Appellant’s causation challenge.         Recently, in

Commonwealth v. Spotti, 94 A.3d 367 (Pa. Super. 2014) (en banc), we

affirmed an aggravated assault while driving under the influence conviction,

where the appellant contended that his erratic driving was not the legal

cause of the accident when another driver veered off the road to avoid

appellant, seriously harming four individuals. In rejecting appellant’s lack of

causation argument, we explained:

        In [Commonwealth v.] Nunn, [947 A.2d 756 (Pa. Super.
      2008)], we reiterated:

         To establish criminal causation, the Commonwealth must
         prove that the defendant's conduct was so directly and
         substantially linked to the actual result as to give rise to
         the imposition of criminal liability.    Commonwealth v.
         Long, 425 Pa. Super. 170, 624 A.2d 200, 203–204 (1993),
         appeal denied, 535 Pa. 645, 633 A.2d 150 (1993) (citing
         Commonwealth v. Rementer, 410 Pa. Super. 9, 598 A.2d
         1300, 1304 (1991), appeal denied, 533 Pa. 599, 617 A.2d
         1273 (1992)).

         In Rementer, we set forth a two-part test for determining
         criminal causation. First, the defendant's conduct must be
         an antecedent, but for which the result in question would
         not have occurred. Rementer, 598 A.2d at 1305; 18
         Pa.C.S.A. § 303(a)(1). A victim's death cannot be entirely
         attributable to other factors; rather, there must exist a
         “causal connection between the conduct and the result of
         conduct; and causal connection requires something more
         than mere coincidence as to time and place.” Rementer,
         598 A.2d at 1305, n. 3 (quoting LaFave and Scott,
         Substantive Criminal Law, Vol. 1, Ch. 3., at 391–392
         (1986)). Second, the results of the defendant's actions
         cannot be so extraordinarily remote or attenuated that it
         would be unfair to hold the defendant criminally
         responsible. Rementer, 598 A.2d at 1305.

         As to the first part of the test, the defendant's conduct
         need not be the only cause of the victim's death in order to

                                    - 16 -
J-A29019-14


         establish a causal connection. Rementer, 598 A.2d at
         1305. “Criminal responsibility may be properly assessed
         against an individual whose conduct was a direct and
         substantial factor in producing the death even though
         other factors combined with that conduct to achieve the
         result.” Long, 624 A.2d at 203 (citing Commonwealth v.
         Skufca, 457 Pa. 124, 321 A.2d 889 (1974), appeal
         dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304
         (1974)). The second part of the test is satisfied when the
         victim's death is the natural or foreseeable consequence of
         the defendant's actions. Id. (citing Rementer and
         Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837
         (1973)). “Where the fatal result was an unnatural or
         obscure consequence of the defendant's actions, justice
         would prevent us from allowing the result to have an
         impact upon a finding of the defendant's guilt.” Id. at 204,
         624 A.2d 200 (citing Rementer, 598 A.2d at 1306–1307).

      Nunn, 947 A.2d at 760.

           Recently, in Commonwealth v. Fabian, 60 A.3d 146
      (Pa.Super.2013), we expressed:

         In seeking to define the requirement that a criminal
         defendant's conduct be a direct factor in the death of
         another, the courts of this Commonwealth have held that
         ‘so long as the defendant's conduct started the chain of
         causation which led to the victim's death, criminal
         responsibility ... may be properly found.’

      Fabian, supra, at 152 citing Commonwealth v. McCloskey, 835
      A.2d 801, 808 (Pa.Super.2003).

Spotti, 94 A.3d at 375-376. Here, more directly than in Spotti, where the

appellant’s car never struck the injured victims or their vehicles, we find

causation between Appellant’s physical attack on the victim and the victim’s

subsequent death following a stroke, pneumonia, and his removal from a

ventilator.




                                    - 17 -
J-A29019-14



       Indeed, the testimony of Appellant’s expert witness, Dr. Maxim

Hammer, a neurologist and stroke expert, supports causation between

Appellant’s actions and the victim’s death. Dr. Maxim testified that he “was

the first physician attending to [the victim] for stroke services” upon the

victim’s admission to the hospital the day of the attack. N.T., 10/9/13, at

343.     Dr. Hammer testified that the victim’s stroke was “most likely

cause[d]” by “hypertension,” which is high blood pressure. Id. at 350. The

victim   then   “ran   into   some    complications   of   the   stroke   such   as

pneumonia[.]” Id. at 346.       Dr. Hammer explained that “[f]rom review of

the records, the treating team that took over for me had discussions with

the family and it was decided that the patient wouldn’t want to survive

severe stroke with resultant severe disability and his status was changed to

comfort measures only … mean[ing] a state of palliative care, when all

medications are taken away and the patient is allowed to pass away

peacefully.” Id. at 348.

       On cross-examination, Dr. Hammer conceded that the victim had a

thalamic hemorrhage “caused … in part by an elevation in [the victim’s]

blood pressure,” and that the victim’s “blood pressure was very high upon

presentation” to the hospital.”      Id. at 354.   Dr. Hammer agreed that it is

“possible that there could be some catalyst for the spike in blood pressure

for hemorrhage to occur[.]” Id. Dr. Hammer affirmed that “if a traumatic

event had occurred … that [could] be a catalyst for a spike in blood

pressure[.]” Id. at 354-355. Further, “[o]ver excitement” and “fear” could

                                       - 18 -
J-A29019-14



be possible “catalyst[s] for a spike in blood pressure[.]”     Id. at 355.   Dr.

Hammer testified that it was not likely, based on his “review in this case,”

that the victim “would have contracted pneumonia” if he had not “suffered

this thalamic hemorrhage[.]” Id. at 357. Dr. Hammer confirmed that “[the

victim] contracting pneumonia in the hospital is a result of the thalamic

hemorrhage[.]” Id. at 357-358.

      As to Appellant’s weight claims, based on our review of the record,

including Appellant’s own trial testimony recounted above, we agree with the

trial court’s determination that “[t]he guilty verdicts relative to [Appellant’s

convictions for third degree murder and aggravated assault] do not shock

the Court’s conscience so as to require the grant of a new trial in order to

prevent a miscarriage of justice.” Trial Court Opinion, 12/19/13, at 7 citing

Commonwealth v. Sullivan, 820 A.2d 795, n. 11 (Pa. Super. 2003); see

also Commonwealth v. Dupre, 866 A.2d 1089, 1103 (Pa. Super. 2005)

(citation omitted) (“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.”).

      In his fourth issue, Appellant contends that the trial court erred in

overruling his objections to the Commonwealth’s comments during closing

arguments that Appellant “t[ook] the victim as he f[ound] him.” Appellant’s

Brief at 45. Appellant fails to cite a single case for his proposition that he is

                                     - 19 -
J-A29019-14



entitled to a mistrial based on the prosecutor’s comments. See Appellant’s

Brief at 45. Moreover, while Appellant incorporates “arguments set forth in

the preceding sections,” Appellant only dedicates 15 lines to this argument.

Id.   It is beyond peradventure that undeveloped claims will be deemed

waived, and will not be considered on appeal.       See Commonwealth v.

Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007).

      Waiver notwithstanding, we find that Appellant’s claim of error is

meritless. We have explained:

            “Our standard of review for a claim of prosecutorial
      misconduct is limited to whether the trial court abused its
      discretion.”  Commonwealth v. Solomon, 25 A.3d 380, 383
      (Pa.Super.2011). “In considering this claim, our attention is
      focused on whether the defendant was deprived of a fair trial,
      not a perfect one.” Id. Not every inappropriate remark by a
      prosecutor constitutes reversible error.     Commonwealth v.
      Harris, 884 A.2d 920, 927 (Pa. Super. 2005), appeal denied, 593
      Pa. 726, 928 A.2d 1289 (2007). A prosecutor's statements to a
      jury do not occur in a vacuum, and we must view them in
      context. Solomon, supra at 383. Even if the prosecutor's
      arguments are improper, they generally will not form the basis
      for a new trial unless the comments unavoidably prejudiced the
      jury and prevented a true verdict. Commonwealth v. Rolan, 964
      A.2d 398, 410 (Pa. Super.2008).

Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa. Super. 2012). Applying

Lewis, we do not find that the trial court abused its discretion in overruling

Appellant’s objections to the Commonwealth’s comments and denying a new

trial. The Commonwealth’s statements to the jury properly commented on,

and sought to rebut, Appellant’s defense strategy that the victim died from

an unrelated stroke due to his preexisting hypertension, rather than from


                                    - 20 -
J-A29019-14



Appellant’s attack of the victim. Accordingly, we find that Appellant is not

entitled to relief. See Commonwealth v. Washington, 927 A.2d 586, 613

(Pa. 2007) (claims of prosecutorial misconduct denied post-conviction relief

where prosecutor’s “comments were firmly based on the evidence”).

        In his fifth issue, Appellant asserts that the Commonwealth “failed to

disprove the justification of self-defense beyond a reasonable doubt.”

Appellant’s Brief at 46. We disagree. Our crimes code provides in pertinent

part:

        (a)   Use of force justifiable for protection of the person.-

        The use of force upon or toward another person is justifiable
        when the actor believes that such force is immediately necessary
        for the purpose of protecting himself against the use of unlawful
        force by such other person on the present occasion.

18 Pa.C.S.A. § 505(a).

        Instantly, Appellant presented evidence to support his defense that he

was justified in using force against the victim because the victim had

brandished a gun toward Appellant.       Appellant called Kimberly McDonald,

Amber McDonald’s sister.        Ms. McDonald testified that she observed

Appellant “sitting on the steps” of the Brownsville Apartments, and

recognized the victim as he drove by and “had a black gun in his hand.”

N.T., 10/9/13, at 302-304.         Ms. McDonald further testified that she

recognized the victim from a single car ride that the victim had given her

while the victim was traveling on “[Route] 51.” Id. at 304. She indicated

that she spoke with the victim “for about two hours.”       Id.   However, Ms.


                                     - 21 -
J-A29019-14



McDonald also conceded that Appellant “is the father of [her] two nephews,”

and acknowledged that she had failed to “tell any of the police officers

investigating the case” about the victim brandishing a gun in “the two years”

following Appellant’s initial arrest, and admitted pleading guilty to theft of

services on August 27, 2013, approximately six weeks prior to Appellant’s

trial. Id. at 309-311.

      Moreover, the record shows that the jury disagreed with Appellant’s

contentions that the victim was the aggressor, and that Appellant only used

the force necessary to defend himself against the victim.                        In their

deliberations, the jury was free to credit the testimony of various witnesses,

including   Kimberly      McDonald,     and   Appellant,     who   testified     that    he

approached the victim’s car, kicked the car and the victim, and assaulted the

victim during a two-part attack.              Therefore, contrary to Appellant’s

argument, the record reflects that the Commonwealth established sufficient

evidence    to    disprove    that    Appellant    acted    in   self-defense.          See

Commonwealth v. Truong, 36 A.3d 592, 599-560 (Pa. Super. 2012) (self-

defense negated where record shows “appellant used more force than

necessary to defend himself”) (citations omitted). We have explained that

“[i]t is the function of the jury to evaluate evidence adduced at trial to reach

a determination as to the facts, and where the verdict is based on

substantial,     if   conflicting    evidence,    it   is   conclusive   on      appeal.”

Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003)

(internal citation omitted).         We also recognize that “the jury [is] not

                                         - 22 -
J-A29019-14



obligated   to   accept”    the   evidence    submitted     by   the    defense.

Commonwealth v. Boczkowski, 846 A.2d 75, 82 (Pa. Super. 2004) citing

Commonwealth v. Tharp, 830 A.2d 519, 527 (Pa. 2003).

      In his sixth issue, Appellant challenges the trial court’s instruction to

the jury that Appellant “had a duty to retreat.”       Appellant’s Brief at 49.

Again, we find waiver. While Appellant cites the applicable statute, he cites

no jurisprudence for his position that the attack’s location in the parking lot

of the Bank Building and on High Street afford him no duty to retreat given

its proximity to Appellant’s abode.      See Appellant’s Brief at 49-52. The

failure to cite authority supporting an argument constitutes waiver.

Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa. Super. 2006); Pa.R.A.P.

2119(a).

      Waiver notwithstanding, based on our review of the trial court’s jury

instructions, we discern no error.     Appellant requested and received self

defense jury instruction over the Commonwealth’s objections, and Appellant

did not challenge the portion of the jury instructions which referenced the

duty to retreat. See N.T., 10/9/13, at 371-372; N.T., 10/10/13, at 429-434.

      Our crimes code provides:

      (b)   Limitations on justifying necessity for use of force.

                                     ***

      (2) The use of deadly force is not justifiable under this section
      unless the actor believes that such force is necessary to protect
      himself against death, serious bodily injury …; nor is it justifiable
      if:



                                     - 23 -
J-A29019-14



                                      ***

      (ii) the actor knows that he can avoid the necessity of using such
      force with complete safety by retreating …[.]

18 Pa.C.S.A. § 505(b)(2)(ii).

      Our review of the record and of the statutory guidelines regarding the

use of deadly force in self-defense scenarios comports with the trial court’s

determination that the jury was properly charged regarding Appellant’s duty

to retreat.    “A jury instruction will be upheld if it clearly, adequately, and

accurately reflects the law.”    Commonwealth v. Smith, 956 A.2d 1029,

1034-35 (Pa. Super. 2008) (en banc) (internal citation omitted).       Further,

“[w]hen reviewing a challenge to part of a jury instruction, we must review

the jury charge as a whole to determine if it is fair and complete. A trial

court has wide discretion in phrasing its jury instructions, and can choose its

own words as long as the law is clearly, adequately, and accurately

presented to the jury for its consideration. The trial court commits an abuse

of discretion only when there is an inaccurate statement of the law.”

Commonwealth v. Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (internal

citation omitted).    An issue would warrant a jury instruction where it was

raised at trial and the “evidence adduced at trial would support such a

charge.”      Commonwealth v. Boczkowski, 846 A.2d 75, 98 (Pa. Super.

2004) (internal citation omitted).

      Here, the record reflects that the jury charge did not contain any

inaccurate statements of law, and the evidence adduced at trial “supported a


                                      - 24 -
J-A29019-14



charge” regarding Appellant’s duty to retreat.               Id.    While the victim did

approach     Appellant    following    the     initial   attack,   as   discussed   above,

Appellant’s statement to law enforcement and his own trial testimony reflect

that Appellant was the initial aggressor, did not retreat prior to the

altercation or when approached by the victim a second time, but rather

resumed his assault. Therefore, Appellant’s challenge regarding his duty to

retreat is unavailing.

       In his seventh issue, Appellant argues that the trial court erred in

admitting Appellant’s “recorded jail conversation” with his paramour, Amber

McDonald.      Appellant’s Brief at 52.         Once again, Appellant’s argument is

undeveloped because he has failed to cite supporting authority beyond

Pa.R.E. 402 and 403.        Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa.

Super. 2006); Pa.R.A.P. 2119(a).               Nonetheless, we note that Appellant

challenges the admission at trial of the following portion of the taped

conversations between Appellant and Amber McDonald2:

       [Appellant]:                Amber, you f--k seventy-five year old
                                   men, that is why I’m in prison. Are you
                                   serious?

       Amber McDonald:             No, John, that is why I f—kin’ get the old
                                   mother f---er’s [sic], because they can’t
                                   f—k.

N.T., 10/8/13, at 285.

____________________________________________


2
  Appellant’s counsel and the Commonwealth stipulated that the voices were
those of Appellant and Amber McDonald. N.T., 10/8/13, at 283-284.



                                          - 25 -
J-A29019-14



      While Appellant’s trial counsel objected to the admissibility of this

evidence, see id. at 241, Appellant’s trial counsel did not renew his objection

when the trial court ruled that it was admissible.           Id. at 250.     Indeed,

Appellant’s trial counsel even suggested:        “Judge, can we have Detective

Casmellio just say that this is what was heard. This is what [Appellant] said,

the reason [Appellant is] in prison is because you—etcetera and so forth[?]”

Id. at 242. Appellant’s trial counsel’s only question to the trial court was:

“how is [Amber McDonald’s] conduct and decision [as referenced in the

taped conversation] relevant to the homicide?”          Id. at 253.       Appellant’s

question, even if it were to be deemed a renewed objection, challenged

relevancy alone and not any other basis for the admissibility of the evidence.

Consequently, there is further support for waiver of this issue.                    See

Commonwealth v. Adams, 39 A.3d 310, 319 (Pa. Super. 2012) (claim

“arguably   waived”   where    “although      [a]ppellant   initially   objected”    to

testimony … [a]ppellant failed to renew that objection” when the testimony

was   subsequently     referenced    during      closing    arguments       by      the

Commonwealth).

      Waiver notwithstanding, we recognize:

             The standard of review employed when faced with a
      challenge to the trial court's decision as to whether or not to
      admit evidence is well settled.         Questions concerning the
      admissibility of evidence lie within the sound discretion of the
      trial court, and a reviewing court will not reverse the trial court's
      decision absent a clear abuse of discretion. Abuse of discretion
      is not merely an error of judgment, but rather where the
      judgment is manifestly unreasonable or where the law is not


                                     - 26 -
J-A29019-14


        applied or where the record shows that the action is a result of
        partiality, prejudice, bias or ill will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (internal

citations omitted).

        The record reflects that the Commonwealth moved to have the

evidence admitted for motive. N.T., 10/8/13, at 240; 253. The trial court

did not abuse its discretion in admitting the challenged portion of the taped

conversation between Appellant and Ms. McDonald because it was relevant

and germane to Appellant’s rancor, jealousy, and anger toward the victim,

which      goes   to    Appellant’s    motive      for   attacking    the     victim.     See

Commonwealth            v.   Ward,     605       A.2d    796,   797    (Pa.   1992)     citing

Commonwealth v. Adkins, 364 A.2d 287 (Pa. 1976) (“Although motive is

not   an    essential    element      of   the    crime,   it   is   always    relevant   and

admissible.”).     Based on our review of the record, and in the absence of

waiver, we would find no abuse of discretion in the trial court’s admission of

Appellant’s tape recorded conversation with Ms. McDonald. Young, supra,

at 924.

        In his eighth issue, Appellant contends that the trial court “erred in

sentencing [Appellant] to a separate concurrent sentence for the crime of

aggravated assault when aggravated assault is a lesser included offense of

third degree murder.”         Appellant’s Brief at 53 (emphasis omitted).                 We




                                            - 27 -
J-A29019-14



agree.3    Merger implicates the legality of a sentence, and as such our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014). “No

crimes shall merge for sentencing purposes unless the crimes arise from a

single criminal act and all of the statutory elements of one offense are

included in the statutory elements of the other offense.” 42 Pa.C.S.A. §

9765. Stated another way, “[s]entences are appropriate for merger when

the same facts support convictions for more than one offense, the elements

of the lesser offense are all included within the elements of the greater

offense,    and    the   greater    offense    includes   at   least   one   additional

element.” Commonwealth v. Ward, 856 A.2d 1273, 1276 (Pa. Super.

2004). However, “[i]f the offenses stem from two different criminal acts,

merger analysis is not required.” Commonwealth v. Shank, 883 A.2d 658

(Pa. Super. 2005) quoting Commonwealth v. Gatling, 570 Pa. 34, 807

A.2d 890 (2002) (plurality).

       It is well settled that the crime of aggravated assault is a lesser

included offense of third degree murder. Commonwealth v. Musselman,

396 A.2d 625, 626 (Pa. 1979); see also Commonwealth v. Brunson, 938

A.2d 1057 (Pa. Super. 2007). Significantly, in Gatling, our Supreme Court


____________________________________________


3
  The trial court explained that it only imposed the concurrent sentence for
aggravated assault in the event that Appellant successfully appealed his
conviction for third degree murder.



                                          - 28 -
J-A29019-14



explained that in order for two convictions to merge: (1) the crimes must

be greater and lesser-included offenses; and (2) the crimes charged must be

based on the same facts.          Gatling, 807 A.2d at 899.       Here, Appellant’s

aggravated assault of the victim, which led to the victim’s death and to

Appellant’s conviction for third degree murder, was part of one single

criminal act where         the   attendant     facts support   both of Appellant’s

convictions, such that merger applies. Appellant can only be sentenced for

his third degree murder conviction.                We therefore vacate Appellant’s

sentence for aggravated assault.

       In his ninth issue, Appellant maintains that the trial court “abused its

discretion in sentencing [Appellant] to the maximum allowable sentence for

the crimes of third degree murder and aggravated assault.”4             Appellant’s

Brief at 55. Again, Appellant presents an undeveloped argument devoid of

citation to pertinent legal authority and thus invoking waiver.           Tielsch,

supra; Chapman-Rolle v. Rolle, supra.

       We nonetheless recognize the trial court’s explanation:

             [T]hird degree murder is a felony of the first degree, with
       a maximum term of imprisonment of up to forty years.
       [Appellant’s] conviction is a Level 5, and he has a Prior Record
       Score of 4. The Offense Gravity Score is 14. [Appellant’s] past
       convictions include assault, drug possession, criminal conspiracy
       and burglary, defiant trespass and more than one DUI. In the
____________________________________________


4
  Since we are vacating Appellant’s sentence for aggravated assault, we
decline to address his challenge to his term of imprisonment for aggravated
assault.



                                          - 29 -
J-A29019-14


      Court’s view, these multiple convictions over many years
      indicate an individual who is not amenable to rehabilitation and
      who has demonstrated a long-standing and continuing
      indifference to the law and to the rights of others. The sentence
      imposed is within the statutory guidelines and was handed down
      only after due consideration of all allowable factors. The Court
      did not abuse its discretion in this regard.

Trial Court Opinion, 12/19/13, at 12. Based on our review of the record, we

would agree with the trial court, and find that the trial court did not abuse its

discretion in sentencing Appellant to the maximum allowable period of

imprisonment for third degree murder arising from Appellant’s attack on the

victim, which culminated in the victim’s death.       See Commonwealth v.

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) citing Commonwealth v.

Devers, 546 A.2d 12, 18-19 (Pa. 1988) (affirming judgment of sentence of

20 to 40 years for third degree murder where the trial court considered

defendant’s   pre-sentence     report,   the   circumstances   of   the   offense,

defendant’s character, defendant’s prior criminal record, age, personal

characteristics, and potential for rehabilitation).

      Judgment of sentence vacated as to aggravated assault only, and

affirmed in all other respects. Jurisdiction relinquished.

      Judge Bowes joins the memorandum.

      Judge Strassburger concurs in the result.




                                      - 30 -
J-A29019-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2014




                          - 31 -
