J. S41025/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
MARCHELLE D. PICKNEY,                       :
                                            :
                          Appellant         :     No. 2781 EDA 2014

              Appeal from the Judgment of Sentence April 21, 2014
              In the Court of Common Pleas of Philadelphia County
                  Criminal Division No.: CP-51-CR-002938-2012


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 28, 2016

        Appellant, Marchelle D. Pickney, appeals from the Judgment of

Sentence entered in the Philadelphia County Court of Common Pleas,

following her jury trial convictions for Third-Degree Murder and Possession of

an Instrument of Crime (“PIC”). After careful review, we affirm on the basis

of the trial court’s Opinion.

        The underlying facts, as summarized in the trial court’s 1925(a)

Opinion filed on February 9, 2015, are as follows:

              These charges arose out of an argument between
        Appellant and her boyfriend, decedent, Brandt Lollie (“Lollie”).
        On December 18, 2011, at approximately 5:00 A.M., Lollie was
        pacing in the living room of the couple[’s] new apartment unit on
        the 5200 block of Cottage Street, in the City and County of


*
    Former Justice specially assigned to the Superior Court.
J.S41025/16


     Philadelphia. Lollie’s footsteps woke Appellant who was also in
     the living room, lying with their sleeping one[-]year-old son and
     Appellant’s one[-]year-old niece. Appellant believed Lollie had
     just returned home after [a] night of partying, and an argument
     ensued. Their son awoke, and Appellant ended the argument to
     put their son back to sleep. As Lollie tried to lay down with
     Appellant, he made a comment that Appellant did not like, and
     she punched him in the face. At this point both children were
     awake, and Appellant went to the kitchen to get juice for the
     children.

           Lollie said, “You can’t keep just hitting on me”, and
     repeated this phrase two more times prior to following Appellant
     into the kitchen and punching her in the face. Appellant picked
     up a knife bought from a dollar store earlier that day and began
     to unwrap its plastic packaging. Lollie slapped Appellant in the
     face. Appellant told Lollie that if he slapped her again, she was
     going to stab him. Lollie slapped Appellant again, and she
     stabbed Lollie in the neck with the knife. Once Lollie started
     bleeding, Appellant instructed Lollie to sit down, placed her coat
     over the wound, and applied pressure. Appellant then called 911
     and told them she had “just stabbed her boyfriend”. During this
     time, the couple’s son walked into the kitchen.          Appellant
     instructed him to stay away, then exited the apartment and
     knocked on the door of the next unit in an attempt to have
     someone take the children. While outside of the apartment,
     Appellant heard police knocking on the entrance door of the
     apartment building, let them in, and led them to Lollie.

           Police Officer Charles Schuck (“Officer Schuck”) received a
     radio call about the incident at approximately 5:47 A.M. Officer
     Schuck drove approximately three (3) minutes to the scene
     where he was unable to open the common entrance door of the
     apartment building, and was joined soon thereafter by a medic
     unit.   When Officer Schuck and the medic unit arrived in
     Appellant’s kitchen Lollie was unresponsive.      Officer Schuck
     directed Appellant into a bedroom with the children to allow the
     medic unit to work on Lollie uninterrupted. Appellant repeatedly
     apologized to the children, and recounted to Officer Schuck how
     she had warned Lollie that she would stab him.

           Lollie was stabbed one (1) time in the lower left neck
     above the clavicle, where the knife blade went through a major
     artery and injured the upper lobe of the left lung. Lollie was


                                   -2-
J.S41025/16


        pronounced dead on the scene at 6:05 A.M. The knife blade,
        still partially encased in plastic, was found at Lollie’s feet, and
        the knife handle was found elsewhere on the kitchen floor. An
        autopsy was performed by Associate Medical Examiner Dr. Aaron
        Rosen, who determined the cause of death was a stab wound to
        the neck. The manner of death was found to be homicide.

              The children’s grandmother arrived to watch the children,
        and Appellant was taken to the Homicide Unit where she made a
        detailed statement.

Trial Court Opinion, filed 2/9/15, at 2-4.

        On April 21, 2014, following Appellant’s conviction by a jury, the trial

court sentenced Appellant to 12 to 25 years’ incarceration for her Third-

Degree Murder conviction.1 On May 1, 2014, Appellant filed a Post-Sentence

Motion, which the trial court denied by operation of law on September 3,

2014.

        Appellant filed a Notice of Appeal on September 30, 2014.             Both

Appellant and the trial court complied with Pa.R.A.P. 1925.2

        Appellant raises two issues on appeal:

        1. Is Appellant entitled to an arrest of judgment on the charge of
        murder in the third degree, where there was insufficient
        evidence to support the verdict and where the evidence did not


1
    The trial court imposed no further penalty for the PIC conviction.
2
  On March 23, 2015, on Appellant’s motion, this Court remanded to allow
Appellant to supplement her Pa.R.A.P. 1925(b) statement. The trial court
subsequently filed a supplemental Rule 1925(a) opinion. The issue raised in
the supplemental Rule 1925(b) statement, i.e., prosecutorial misconduct,
was not raised in Appellant’s brief. She has, thus, abandoned the issue.
See Commonwealth v. Sanchez, 36 A.3d 24, 72 (Pa. 2011) (holding issue
purposely abandoned on appeal is not reviewable).



                                       -3-
J.S41025/16


      establish beyond a reasonable doubt that Appellant acted with
      malice?

      2. Is Appellant entitled to a new trial where the greater weight of
      the evidence does not support a verdict of murder in the third
      degree and where the verdict, especially with regard to the
      finding of malice, was based on speculation, conjecture and
      surmise?

Appellant’s Brief at 3.

      We review claims regarding the sufficiency of the evidence by

considering 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. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014).

Further, a conviction may be sustained wholly on circumstantial evidence,

and the trier of fact—while passing on the credibility of the witnesses and

the weight of the evidence—is free to believe all, part, or none of the

evidence. Id. In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for the fact-finder. Id.

      When considering challenges to the weight of the evidence, we apply

the following precepts:

            The weight of the evidence is exclusively for the finder
         of fact[,] who is free to believe all, none or some of the
         evidence and to determine the credibility of witnesses.

            Appellate review of a weight claim is a review of the
         exercise of discretion, not 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


                                     -4-
J.S41025/16


         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.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(internal quotation marks and citations omitted). Further, “[i]n order for a

defendant to prevail on a challenge to the weight of the evidence, the

evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.”     Id. at 546 (internal quotation marks and

citation omitted).

      The Honorable Lillian H. Ransom sitting as the trial court has authored

a comprehensive, thorough, and well-reasoned opinion, citing to the record

and relevant case law in addressing Appellant’s claims on appeal.       After a

careful review of the parties’ arguments and the record, we affirm on the

basis of the trial court’s Opinion. See Trial Court Opinion, filed 2/9/15, at 4-

7 (concluding that: (1) the verdict was not against the weight of the

evidence and did not shock the conscience; and (2) the evidence was

sufficient to support Appellant’s Third-Degree Murder conviction because

Appellant confessed that she used a knife, a deadly weapon, to stab the

victim in the neck, a vital part of the body).




                                      -5-
J.S41025/16


      The parties are instructed to attach a copy of the trial court’s 2/9/15

Opinion to all future filings.

      Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/28/2016




                                    -6-
                                                                                                                Circulated 06/15/2016 10:04 AM




                IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                             CRIMINAL TRIAL DIVISION

COMMONWEALTH OF                                                                     CP-5l-CR-0002938-2012
PENNSYLVANIA                                                 --~
                      (       CP-Si-CR-0002938-2012 comm v Pickney. Matchelle O l
                                                    Op101on
                          '
                                                                                        Fil-ED
v.                                  11 I II Ill 111 II I IIIll 111111                   . FEB. 0 9 2015
                                             7255183581
                                                                               - . Criminal Appoa1 U .
MARCHELLE PINCKNEY,                                                           FirstJud· ·        =
                                                                                              :S nrt
APPELLANT                                                                           SUPER1ls~t~~hRroA2014

                                                                   OPINION

RANSOM,J.                                                                                            February 6, 2015

          On February 21, 2014, the Appellant, Marchelle Pinckney, was found guilty, by a jury

sitting before this Court, of one (1) count of Third Degree Murder, a felony of the first degree

and one (1) count of Possession of an Instrument of Crime, a misdemeanor of the first degree.

          On April 21, 2014, this Court sentenced the Appellant to twelve to twenty-five ( 12- 25)

years imprisonment for Third Degree Murder, with no further penalty assessed for the additional

charge.

          On May 1, 2014, Appellant timely filed Post Sentence Motions. Appellant's Post

Sentence Motions were denied by operation oflaw on September 3, 2014. On September 30,

2014, the Appellant filed a Notice of Appeal. When the notes of testimony became available, this

Court ordered the Appellant, pursuant to Pennsylvania Rule of Appellate Procedure l 925(b) to

file a concise, self-contained and intelligible statement of errors complained of on appeal on

October 6, 2014. On October 28, 2014, counsel filed a l 925(b) statement of errors complained of

on appeal to this Court. In his l 925(b) statement, Appellant raises the following three (3) issues:




                     .,
    (1) The Trial Court erred when it denied the defendant's motion for a mistrial based upon

        prosecutorial misconduct after the Commonwealth reviewed documents concerning the

        defendant from the Salvation Army which were secured by the defendant pursuant to a

        subpoena and order of the Trial Court when the documents had been held by the Trial

        Court prior to the defendant being able to review them in order for the Trial Court to

        make a determination as to whether the documents were discoverable by the

        Commonwealth.

    (2) The jury verdict was against the weight of the evidence.

    (3) The evidence was insufficient to support the conviction.

                                               FACTS

        These chalgfi -afoseout of aii argument between Appellantand her boyfriend, decedent,

Brandt Lollie ("Lollie"). On December 18, 2011, at approximately 5:00 A.M., Lollie was pacing

in the living roomof the couples' new apartment unit on the 5200 block of Cottage Street, in the

City and County of Philadelphia. Lollie's footsteps woke Appellant who was also in the living

room, lying with their sleeping one year-old son and Appellant's one year-old niece. Appellant

believed Lollie had just returned home after night of partying, and an argument ensued. Their

son awoke, and Appellant ended the argument to put their son back to sleep. As Lollie tried to

lay down with Appellant, he made a comment that Appellant did not like, and she punched him

in the face. At this point both children were awake, and Appellant went to the kitchen to get juice

for the children.

        Lollie said.v'You   can't keep just hitting on me", and repeated this phrase two more times

prior to following Appellant into the kitchen and punching her in the face. Appellant picked up a

knife bought from.a dollar store earlier that day and began to unwrap its plastic packaging. Lollie

                                                  2


                                     (
slapped Appellant .in the face. Appellant told Lollie that if he slapped her again, she was going to

stab him. Lollie slapped Appellant again, and she stabbed Lollie in the neck with the knife. Once

Lollie started bleeding, Appellant instructed Lollie to sit down, placed her coat over the wound,

and applied pressure. Appellant then called 9 l l and told them she had "just stabbed her

boyfriend". During this time, the couple's son walked into the kitchen. Appellant instructed him

to stay away, then exited the apartment and knocked on the door of the next unit in an attempt to

have someone take the children. While outside of the apartment, Appellant heard police

knocking on the entrance door of the apartment building, let them in, and led them to Lollie.

       Police Officer Charles Schuck ("Officer Schuck") received a radio call about the incident

at approximately s=:47 A.M. Officer Schuck drove approximately three (3) minutes to the scene

where he was unal,le to open the common entrance door of the apartment building, and was

joined soon thereafter by a medic unit. When Officer Schuck and the medic unit arrived in

Appellant's kitche1 Lollie was unresponsive. Officer Schuck directed Appellant into a bedroom

with the children to allow the medic unit to work on Lollie uninterrupted. Appellant repeatedly

apologized to the children, and recounted to Officer Schuck how she had warned Lollie that she

would stab him. ::

       Lollie was stabbed one ( l) time in the lower left neck above the clavicle, where the knife

blade went through a major artery and injured the upper lobe of the left lung. Lollie was

pronounced dead on the scene at 6:05 A.M. The knife blade, still partially encased in plastic, was

found at Lollie's feet, and the knife handle was found elsewhere on the kitchen floor. An autopsy

was performed by Associate Medical Examiner Dr. Aaron Rosen, who determined the cause of

death was a stab wound to the neck. The manner of death was found to be homicide.



                                                 3
       The children's grandmother arrived to watch the children, and Appellant was taken to the

Homicide Unit where she made a detailed statement.

                                      LEGAL DISCUSSION

       The Appellant raises three (3) issues on appeal. The first (1) issue Appellant raises is:

The Trial Court erred when it denied the defendant's motion for a mistrial based upon

prosecutorial misconduct after the Commonwealth reviewed documents concerning the

defendant from tiie Salvation Army which were secured by the defendant pursuant to a

subpoena and order of the Trial Court when the documents had been held by the Trial

Court prior to the defendant being able to review them in order for the Trial Court to

make a determin!~tion as to whether the documents were discoverable by the

Commonwealth.      ·

       It is difficult to discern what misconduct the Appellant is alleging. Since this Court is not

willing to speculate, it therefore cannot respond to this issue.

       The second (2) issue Appellant raises is:

T~e jury verdict was against the weight of the evidence.

       The standa}d 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 conscious."

Commonwealth v. Lloyd, 2005 Pa. Super. 236, Pl2, 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 of the witnesses. Commonwealth v. Small, 559 Pa. 423,

435, 741 A.2d 666 672 (Pa. 1999).
                       1,




                                                   4
           Murder that is not committed by an intentional killing, nor committed while defendant

was engaged as a principal or an accomplice in the perpetration of a felony, is a Murder of the

third degree.1 The elements of Third Degree Murder have been developed by case law. Third

Degree Murder is ~ killing done with legal malice but without the specific intent to kill required

in First Degree Murder. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). "Malice

express or implied is the criteria and absolutely the essential ingredient of murder."

Commonwealth v.'.Comrnander, 436 Pa. 532, 537, 260 A.2d 773, 776 (1970). 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 regardless of social duty" which proved that

there was at that time in him "the state or frame of mind termed malice." Commonwealth v.

Malone, 354 Pa. 180, 47 A.2d 445 (1946), (quoting Commonwealth v. Drum, 58 Pa. 9 (1868)).

Malice may be inferred from the use of a deadly weapon on a vital part of the body.

Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068, cert. denied, 439 U.S. 989, 99 S.Ct.

588, 58 L.Ed.2d 663 (1978).

           In the instant case, the jury's verdict of guilty does not shock the conscience. The

Commonwealth presented evidence through the testimony of its witnesses and Appellant's

statement to polic1, that Appellant possessed the requisite malice for Third Degree Murder. The

jury, as the fact finder, has the sole discretion of assessing the credibility of witnesses at trial.

The finder of fact is free to believe all, part, or none of the evidence and to determine the

credibility of witnesses. The jury was free to believe the testimony presented that the Appellant




1
    18 Pa. C.S. § 2502(c)
                                                     5
committed Third Degree Murder when she stabbed Lollie in the neck, a vital part of the body,

with a deadly weapon; a knife. (N.T. 2/20/14 at 114).

           It was uncontroverted that Appellant stabbed Lollie. Indeed, all recitations of the events
                 •
of December 18, 2011 come from Appellant's own recollection. Appellant made a statement to

police wherein she admitted to stabbing Lollie, and her testimony at trial was consistent with that

statement. (N.T. 2/19/14, 163-164 and 2/20/14 at 114).             Officer Schuck testified that at the scene,

Appellant apologized to the children for killing Lollie and at one point said, "I grabbed the knife;

I told him ifhe came toward me I would stab him; and them I stabbed him." (N.T. 2/19/14 at 98).

Additionally, Appellant's testimony was corroborated by physical evidence found at the scene.

When the medic unit arrived, Lollie was unresponsive and in a seated position on the kitchen

floor. (N.T. 2/19/14 at 48). Lollie had a bloody piece of clothing on the left side of his neck and

the knife blade was found at his feet, still partially encased in plastic and severed from the

handle. (N.T. 2/19/14 at 92, 116, 125-126).

           A person commits misdemeanor of the first degree if he possesses any instrument of

crime with intent         i? employ it criminally.2   At trial the Commonwealth established    that Appellant

had a knife that she intended to utilize, and did utilize, in a criminal act- stabbing Lollie. The jury

was free to believe that Appellant intended to use the knife criminally when she picked up the

knife during her argument with Lollie, and began to unwrap it prior to verbally warning Lollie

that she would stab him ifhe slapped her again. (N.T. 2/19/14,            163-164 and 2/20/14 at 114).




2
    18 Pa.C.S. § 907(a)
                                                           6
       The third (3) issue Appellant raises is:

The evidence was insufficient    to support the conviction.

       The Appellant contends that the evidence was insufficient. This claim lacks merit. The

standard of review for a sufficiency of evidence claim is "whether the evidence admitted at trial

and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the

Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses

beyond a reasonable doubt." Commonwealth v. Miller, 541 Pa. 531, 540, 664 A.2d 1310,            1314

(l 995) (citing Commonwealth v. Carpenter, 511 Pa. 429, 435, 515 A.2d 531, 533-534 (l 986)).

                '
When reviewing sufficiency of the evidence, an appellate court may not substitute its judgment

for that of the fact-finder; if the record contains support for the verdict, it may not be disturbed.

See Commonwealth v. Marks, 1997 Pa. Super. LEXIS 3857, 4, 704 A. 2d I 095, I 098 ( 1997).

What may appear unlikely to a reviewing court cannot supplant what the fact finder has found.

Commonwealth v. Jackson, 506 Pa. 469, 474, 485 A.2d 1102, 1104 (Pa. 1984).

       The evide~ce presented by the Commonwealth showed that Appellant had the requisite

malice to kill wheri she stabbed Lollie in the neck with a knife, and that her actions resulted in

Lollie's death. Thus, this Court finds that viewed in a light most favorable to the

Commonwealth, tJ\ere was sufficient evidence to support the verdict. (See discussion of second

issue raised by Appellant at page 4).

                                           CONCLUSION

        For the reasons set forth above, the decision of this Court should be affirmed.
                   ,·
                                                        BY THE COURT:




                                              ~
                                                   7
RE: · Comm'a'iiw.e-altli_V-:.:Match·elle. P.inckney
           CP.~5'i'Y<f.Ii!db'ot93~~ib12
TYPE·:·OP.INION'
                      1

                                                                       PROOF. OF SERVICE


I hereby certify that .I am this day serving the-foregoing Court Order upon the person(s), and in
the manner indfcated Eel'ow, which service satisfies the requirements of Pa.R.Crim.P.    114:
                      .
                     '/

                      ;
Defendant:                                     Marchelle Pinckney
                                               OV4193
                                               SCI Cambridge Springs
                                               45 i Fullerton Avenue
                                               Cambridge Springs, PA 16043

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

Defense· Attorney:                             Coley O. Reynolds, Esquire
                                               1515 Market Street
                      '•
                     ,I                        Suite 1210
                     ...l                      Philadelphia, PA 19102

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

District Attorney:                             Hugh J. Burns Jr., Esquire
                     .
                     ;                         Philadelphia District Attorney's Office
                                               Widener Building - Three South Penn Square
                                               Philadelphia, PA 19107

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


                     ·,
                      •I




Date: February 9, 2015



 v;..A;-;~-
 rf--,/_ .. -~
Tianna
     K. \(alQ;;                                        ·,ci
Law Clerk to         t~e Hon.                   Lillian H. Ransom




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