J-S19007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

NACOLA DARCEL FRANKLIN

                        Appellant                    No. 599 EDA 2014


       Appeal from the Judgment of Sentence entered July 16, 2013
             In the Court of Common Pleas of Lehigh County
            Criminal Division at No: CP-39-CR-0004098-2012


BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 23, 2015

     Appellant NaCola Darcel Franklin appeals from the judgment of

sentence entered in the Court of Common Pleas of Lehigh County (“trial

court”), following her jury conviction for first degree murder. Upon review,

we affirm the judgment of sentence.

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

           Appellant was engaged to marry Billy Brewster. The
     wedding was scheduled for 10:00 a.m. on August 11,
     2012. Brewster’s cousin, Nakia Kali, and Kali’s wife Monique
     flew in from Chicago to attend the wedding. The Kalis were
     staying with Appellant and Brewster the night before the
     wedding.

           In the afternoon of August 10, 2012, the Kalis arrived at
     Brewster’s apartment. Appellant arrived shortly after the
     Kalis. At or around 4:00 p.m., Nakia Kali and Brewster left the
     apartment to get food from a diner. When they returned,
     Appellant was out shopping. Appellant, Monique Kali, Appellant’s
     mother, and Appellant’s niece India went out to a nearby mall to
     purchase a dress for India.
            At approximately 9:00 p.m., Nakia, Monique, and Brewster
     left the apartment to go to a local strip club. Nakia testified that
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     Appellant was frustrated and anxious about the wedding
     preparations for the following day. At the gentlemen’s club,
     Nakia observed Brewster consume “two drinks and a beer.” The
     three left the club after a few hours, stopped at a restaurant but
     did not order food because Nakia was suffering from a headache,
     and returned to the apartment.

            Upon returning to the apartment, the Kalis went to a
     bedroom that was prepared for them. This room was adjacent
     to the bedroom shared by Appellant and Brewster. Nakia Kali
     testified he overheard Brewster and Appellant bickering outside
     their bedroom and could see Brewster through an open
     doorway. Eventually, Brewster went into his bedroom with
     Appellant and shut the door. Nakia testified he continued to
     overhear arguing [sic] between Brewster and Appellant.

            Shortly after 2:00 a.m., Appellant called 911 to request
     help. On the 911 tape, Appellant and Brewster can be clearly
     heard arguing with one another. Appellant yells [sic] to her son
     Anthony to get her a knife. At this time, Nakia came out from
     the bedroom to find out what was transpiring. Nakia observed
     Brewster standing with his back to the front door and Appellant
     standing approximately seven or eight feet in front of Brewster
     holding a knife. On the 911 tape, Appellant repeatedly told
     Brewster to “give me my baby.” She is heard telling Brewster he
     is “fuckin’ drunk.” She also admonishes Brewster to “put my
     baby down,” “give me my fuckin’ baby,” and threatened him by
     yelling, “You know I’ll swing at your dumb ass!” Nakia
     attempted to diffuse the situation by separating Appellant and
     Brewster and telling Appellant not to do this. During this
     argument, India took the baby, BJ, and walked away from the
     situation. Nakia tried to calm Appellant down as Brewster stood
     by the door, and he repeatedly asked Appellant to just let him
     take Brewster out of the apartment. On the 911 tape, Appellant
     can clearly be heard screaming “Die!” and threatening to stab
     Nakia. Appellant can also be heard threatening Brewster,
     saying, “Fucking die tonight. You wanna die tonight?” The initial
     911 call ends shortly after that.
           Nakia testified that at this time, he yelled at Brewster to
     get out. Brewster had his hands up with his palms facing
     outward. Nakia turned his head away from Appellant to push
     Brewster out the nearby door, and when he looked away,
     Appellant lunged at Brewster with the knife and stabbed him
     approximately three times. Nakia grabbed Brewster and took
     him outside onto the landing for the stairwell. He observed that
     Brewster was bleeding from his chest in the area of his
     lung. Once Nakia got Brewster outside, he yelled to India, who
     was still inside the apartment, to get him a towel. India did not
     get Nakia a towel to use on Brewster prior to him closing his
     eyes and becoming nonresponsive.
           Back inside the apartment, Monique wrestled Appellant to
     the ground with Appellant still holding the knife. Monique told

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     Nakia to take the knife, which Nakia did after prying the knife
     out of Appellant’s hand. Nakia threw the knife to the ground and
     India picked it up and hid it in the kitchen.

           A second 911 call was placed by Appellant within minutes
     of the first. Appellant advised the dispatcher that her boyfriend
     just beat her up and stole her baby. She also indicated
     Appellant needed an ambulance because she cut him for trying
     to take her baby.

           Whitehall Township Police Officer Matthew Reszek was
     dispatched to Appellant’s apartment at approximately 2:19
     a.m. The initial dispatch was for a drunk male attacking a
     female. Before he arrived at the scene, Reszek received updated
     information which indicated a knife was involved and the female
     cut the male with the knife. He arrived four minutes later. From
     the outside looking into the apartment building, Officer Reszek
     observed what appeared to be feet dangling over the top step of
     a common stairwell inside the building. He entered the
     apartment building and called up to Brewster, who was lying on
     the top landing of the stairwell in the apartment, but Brewster
     did not respond.

            Officer Reszek ascended the stairs and approached
     Brewster. Reszek observed Brewster’s legs moving very
     slightly. Brewster was lying prone on his face and breathing
     slightly. Reszek testified Brewster appeared unconscious and
     was bleeding from a wound on the left side of his body. He
     contacted the Communications Center while putting on latex
     gloves from his belt and told the dispatcher to have the
     responding ambulance expedited.

           While Officer Reszek was still putting on his latex gloves,
     the door to Apartment Number 7 opened and William Brewster,
     Billy Brewster’s minor son, stepped out into the common
     area. Reszek could hear both adults’ and children’s voices
     coming from inside the apartment. Officer Reszek asked William
     who the person on the ground was and William responded,
     “That’s my dad.” William retreated into the apartment and shut
     the door.

           Once other officers arrived on scene, Officer Reszek
     proceeded inside the apartment. Officer Reszek encountered
     Nakia Kali, Monique Kali, Appellant, and several minor
     children. Appellant was seated on the couch inside the
     apartment with Monique Kali. Officer Reszek observed Appellant
     was visibly upset. Officer Reszek asked directly about the




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       location of the knife. India Franklin, Appellant’s teen daughter[1]
       indicated she hid it in the kitchen and took Officer Reszek to the
       location where she had hidden it in a cabinet underneath the
       sink. Officer Reszek retrieved the knife and took it into
       evidence.

             An autopsy showed Brewster died of stab wound to the
       heart. The manner of death was homicide. Dr. Isidore
       Mihalakis, who performed the autopsy, testified that Brewster’s
       hands had defensive wounds indicative of a struggle. Mihalakis
       also testified that Brewster had a .13% blood alcohol level at the
       time of his death.

Trial Court Opinion, 8/25/14, at 1-6.          On August 11, 2012, Appellant was

charged with criminal homicide. Following a three-day trial, a jury convicted

Appellant of first-degree murder on May 23, 2013.2 On July 16, 2013, the

trial court sentenced Appellant to life in prison without the possibility of

parole. On July 26, 2013, Appellant filed a post-sentence motion requesting

a new trial, arguing, inter alia, that the jury’s verdict was against the weight

of the evidence. On January 10, 2014, the trial court issued an opinion and

order, denying Appellant’s post-sentence motion. Appellant timely appealed

to this Court.

       In her lengthy Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, Appellant repeated the argument that the jury’s verdict was against

the weight of the evidence.         Specifically, Appellant argued she lacked the

____________________________________________


1
  Appellant testified India Franklin was her niece who relocated from
California to live with her in Whitehall. N.T. Trial, 5/22/13, at 163-64.
2
  The record indicates that prior to trial Appellant rejected a plea offer for
third-degree murder, which would have carried a negotiated minimum of
sentence of 13 years’ imprisonment. See N.T. Trial, 5/21/13, at 8. There
was no agreement on the maximum sentence. Id.



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specific intent to kill the victim. The trial court issued a Pa.R.A.P. 1925(a)

opinion, concluding that the testimony presented at trial, Appellant’s

statements to the victim on the 9-1-1 recording and her stabbing the victim

multiple times militate against her weight of the evidence argument.

      On appeal, Appellant raises only a single issue for our review:

“Whether the [t]rial [c]ourt erred when it denied [] Appellant’s post-

sentence motion for a new trial based on the verdict of First-Degree Murder

being contrary to the weight of the evidence.” Appellant’s Brief at 2.

      We review weight-related issues as follows:

      The weight given to trial evidence is a choice for the factfinder.
      If the factfinder returns a guilty verdict, and if a criminal
      defendant then files a motion for a new trial on the basis that
      the verdict was against the weight of the evidence, a trial court
      is not to grant relief unless the verdict is so contrary to the
      evidence as to shock one’s sense of justice.

      When a trial court denies a weight-of-the-evidence motion, and
      when an appellant then appeals that ruling to this Court, our
      review is limited. It is important to understand we do not reach
      the underlying question of whether the verdict was, in fact,
      against the weight of the evidence. We do not decide how we
      would have ruled on the motion and then simply replace our own
      judgment for that of the trial court.         Instead, this Court
      determines whether the trial court abused its discretion in
      reaching whatever decision it made on the motion, whether or
      not that decision is the one we might have made in the first
      instance.
      Moreover, when evaluating a trial court’s ruling, we keep in mind
      that an abuse of discretion is not merely an error in judgment.
      Rather, it involves bias, partiality, prejudice, ill-will, manifest
      unreasonableness or a misapplication of the law. By contrast, a
      proper exercise of discretion conforms to the law and is based on
      the facts of record.

Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (internal

citation omitted). Because of the above standard, a trial court’s decision to

grant or deny a new trial based on the weight of the evidence is one of the

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least assailable of its rulings. Commonwealth v. Antidormi, 84 A.3d 736,

758 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014).

      To obtain a conviction of first degree murder, the
      Commonwealth must prove that a human being was unlawfully
      killed, that the defendant perpetrated the killing, and that the
      defendant acted with malice and a specific intent to kill. Section
      2502 of the Crimes Code defines murder of the first degree as an
      “intentional killing,” 18 Pa.C.S. § 2502(a), which, in turn, is
      defined as a “[k]illing by means of poison, or by lying in wait, or
      by any other kind of willful, deliberate and premeditated killing.”
      Id. at § 2502(d). It is well-settled that specific intent to kill can
      be established through circumstantial evidence such as the use
      of a deadly weapon on a vital part of the victim’s body.

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted), cert. denied, 135 S.Ct. 145 (2014).

      Here, in support of her weight of the evidence argument, Appellant

points out that the trial court abused its discretion for two reasons. First,

Appellant argues that she stabbed the victim only once on a vital part of his

body and that the trial court was wrong in concluding that she had done so

twice. See Appellant’s Brief at 17. Second, Appellant argues that the trial

court did not consider the entire transcript of the 9-1-1 call and based its

decision only on portions of the transcript unfavorable to her. See id.

      In reviewing the first part of Appellant’s claim, we conclude the trial

court did not abuse its discretion.   The number of times Appellant used a

deadly weapon on a vital part of the victim’s body is of no consequence.

What is important is that Appellant stabbed the victim with a knife on a vital




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part of his body, thereby causing his death.3 Here, the jury heard, inter alia,

medical testimony, from which it inferred that Appellant had the specific

intent to kill.    See Commonwealth v. VanDivner, 962 A.2d 1170, 1176

(Pa. 2009) (finding that the jury properly could infer specific intent from

Appellant’s use of a handgun upon the victim’s head), cert. denied,

VanDivner v. Pennsylvania, 559 U.S. 1038 (2010); Commonwealth v.

Chamberlin, 30 A.3d 381, 394 (Pa. 2011) (citation omitted) (stating,

“[s]pecific intent to kill can be inferred by the use of a deadly weapon upon a

vital part of the body[]”), cert. denied, Chamberlin v. Pennsylvania, 132

S. Ct. 2377 (2012).          Based on the undisputed evidence that Appellant

stabbed the victim with a knife on a vital part of his body, the jury inferred

Appellant had a specific intent to kill.

        In reviewing the second part of Appellant’s claim, we also do not find

the trial court abused its discretion. Appellant essentially argues the 9-1-1


____________________________________________


3
    Dr. Mihalakis testified at trial:

        There are two stab wounds. The first is just below into the left
        of the left nipple. It is an inch and a quarter long, and it
        perforates the chest wall, enters into the chest, perforates the
        left upper lobe of the lung, perforates the heart sac, and then
        perforates the right ventricle and stops after penetrating about
        three quarters of the thickness of the interventricular septum.

          ....

        Well, this is very lethal because it goes through a vital portion of
        the body; one, left lung, and secondly, the heart.

N.T. Trial, 5/22/13, at 95-96.



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recording, when reviewed in its entirety, would demonstrate that Appellant

did not intend to kill the victim.    In support of this contention, Appellant

asserts:

      The 9-1-1 tape/transcript must be viewed in its totality and in
      conjunction with the physical interaction between [Appellant]
      and [the victim] after [the victim] returns home at 1:30 a.m.
      [The victim’s] assaultive behavior against [Appellant], his
      forceful taking of the couple’s infant child while in an intoxicated
      rage, and the physical combat or struggle with [Appellant] both
      in the bedroom and by the front door are supported, in part, by
      the testimony of Dr. Mihalakis, who opined that “the wounds to
      the victim were indicative of a struggle . . . more indicative of a
      hand-to-hand combat of some sort.”


Appellant’s Brief at 17-18.

      Here, the record indicates the jury not only heard the 9-1-1 recording

but also received a transcript of the recording for purposes of reading along.

See N.T. Trial, 5/23/13, at 101-04.             Based on its review of the 9-1-1

recording and other evidence presented, the jury was free to resolve any

conflict in evidence against Appellant.     Indeed, the jury, as a trier of fact,

determines the credibility of witnesses and resolves any conflict or

inconsistencies in the evidence.     See Commonwealth v. Cruz-Centeno,

668 A.2d 536, 541 (Pa. Super. 1995).

      Given our review of the entire record, we conclude that the trial court

did not abuse its discretion in denying Appellant’s motion for a new trial.

Specifically, as the trial court noted:

      The uncontradicted testimony at trial is that Appellant and [the
      victim] got into a verbal confrontation which led to Appellant
      specifically instructing her minor son to “get her a knife,” and he
      obliged.     This instruction can be heard on the 911 tapes
      introduced into evidence.         Likewise, Appellant’s recorded
      statements to [the victim] as captured on the 911 tape included,

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      “I’m gonna fucking kill you,” “Yes, I swear I am going to cut
      you,” “Die! Die!,” and “Fucking die tonight, gonna die tonight!”
      All of this evidence taken in conjunction with the fact that
      Appellant did in fact stab [the victim] twice with the knife to a
      vital part of [the victim’s] body supports the jury’s determination
      that Appellant acted with specific intent to kill.

       ....

            In reviewing Appellant’s post-sentence motion, [the trial
      court] properly considered the totality of the circumstances in
      determining if the jury’s verdict would shock the conscience.
      Appellant’s own words and actions, including obtaining a knife
      which would become the murder weapon, support a conclusion
      that she wanted to kill [the victim].


Trial Court Opinion, 8/25/14, at 11, 13. Accordingly, Appellant is entitled to

no relief on this claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




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