J-S22001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

DERRICK RAYMOND ELLIOT

                             Appellant                No. 627 WDA 2012


             Appeal from the Judgment of Sentence March 14, 2012
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0014878-2010


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.∗

MEMORANDUM BY PANELLA, J.                                  FILED MAY 19, 2015

        Appellant, Derrick Raymond Elliot, seeks review of the judgment of

sentence entered by the Allegheny Country Court of Common Pleas after a

bench trial and challenges the sufficiency of the evidence supporting his

convictions for third-degree murder1 and firearms not to be carried without a

license.2 We affirm.

        On March 7, 2009, Melvin Duncan, Jr., Tezjuan Taylor, and Lamar

Patrick drove to the Crawford Village in McKeesport in a stolen red Honda


____________________________________________


∗
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2502.
2
    Pa.C.S.A. § 6106.
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car, and stopped the vehicle near a basketball court.3 Patrick was in the

driver’s seat, Taylor was in the front passenger seat, and Duncan was in the

back seat standing up through the sunroof.            Elliot was in the nearby

basketball court. When he saw the red car, he picked up a gun and, while

walking in the parking lot adjoining the court, began firing shots at the car.

One of the bullets struck Duncan, and he fell back into the car as Patrick

drove away quickly. He stopped the car on a dead end street, where he and

Taylor pulled Duncan out of the car and placed him on the ground before

fleeing on foot. The City of McKeesport Police Department later received a

call reporting that a stolen car had been located. When the police responded

to the location, they found Duncan lying beside the passenger side of the

vehicle. He was pronounced dead shortly thereafter.

       Allegheny County police investigators responded to the scene of the

Crawford Village shooting.        The police recovered seven shell casings from

the parking lot adjacent to the basketball courts; testing revealed that they

had all been fired from the same gun.            The police did not recover the

weapon. The caliber of shell casings found at Crawford Village was the same

as the caliber of the casing removed from Duncan’s body.




____________________________________________


3
  Patrick, Taylor and Duncan were members of the “Goon Squad,” a gang
from the “top of McKeesport” area of McKeesport. A rival gang operated out
of Crawford Village.



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      Several witnesses identified Elliot as the shooter. Jameelah Miller, an

eyewitness, told police that when the shooting started, everyone hit the

ground—except Elliot who remained standing with a gun in his hand,

shooting toward the car. Derrick Walker told police that Elliot had confessed

to him that he had shot at the car. Patrick identified Elliot in a photo array

as someone who “jumped out at him,” and told investigators that the

shooter’s name was “Derrick.”      Trial Court Opinion, dated 9/3/14, at 6.

Elliot was arrested and charged with the aforementioned crimes.

      At Elliot’s trial, Patrick and Walker withdrew their prior statements

made to police. Patrick testified that he had never positively identified Elliot

from the photo array as the shooter and stated that Elliot was not the

shooter. Taylor testified that he did not see the shooter, did not know Elliot,

and did not see Elliot at the scene of the crime. Walker testified that he did

not have a conversation with Walker. The court admitted Patrick’s prior

statement, as well as a video of Walker’s interview with investigating officers

in which Walker told officers that Elliot had told him that he was the shooter.

Jameelah Miller testified in detail about the circumstances leading up to and

including the shooting.    She also stated that she did not hear gunshots

coming from anywhere else in the area and “[s]he was emphatic that there

was only one person shooting, and that the shooter was Derrick Elliot, the

Defendant.” Id. at 6-7.     She also testified that threats had been made

against her prior to trial and she had been placed in a witness protection

program.

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      The court found Elliot guilty of third-degree murder and the firearms

offense.   He was subsequently sentenced to a term of 12½ to 25 years’

incarceration for the homicide conviction and to a consecutive term of 3½ to

7 years’ incarceration for the firearms conviction. Elliot timely appealed to

this Court. He raises the following issue:

      Did the trial court err in finding the evidence sufficient to sustain
      a finding of guilty on the charges of third degree murder and
      firearms not to be carried without a license?

Appellant’s Brief, at 2.

      In reviewing a challenge to the sufficiency of the evidence, “[w]e must

determine whether the evidence admitted at trial, and all reasonable

inferences derived therefrom, when viewed in the light most favorable to the

Commonwealth as verdict winner, support all of the elements of the offense

beyond a reasonable doubt.”      Commonwealth v. Cooper, 941 A.2d 655,

662 (Pa. 2007). Our scope of review is plenary. See Commonwealth v.

Weston, 749 A.2d 458, 460 n.8 (Pa. 2000).             We may not weigh the

evidence and substitute our judgment for the fact-finder’s, as the fact-finder

solely determines the credibility of witnesses and is free to believe all, part

or none of the evidence submitted. See Cooper, 941 A.2d at 662.               The

Commonwealth may sustain its burden of proving every element of an

offense by means of wholly circumstantial evidence. See Commonwealth

v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013).




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      Murder in the third degree is an unlawful killing with malice but

without the specific intent to kill. See 18 Pa.C.S.A. § 2502(c). See also

Commonwealth        v.     Santos,   876   A.2d    360,   363–64   (Pa.   2005);

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011).

Malice is defined as:

      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[.] Malice may be found where the defendant consciously
      disregarded an unjustified and extremely high risk that his
      actions might cause serious bodily injury. Malice may be inferred
      by considering the totality of the circumstances.

Id. (citations omitted).

      Elliot relies solely on testimony provided at trial by Patrick and Taylor

before concluding that the trial court erred in relying only upon the

testimony of one witness to find him guilty of third-degree murder.         See

Appellant’s Brief, at 9. But this is not a challenge to the sufficiency of the

evidence.   It is a challenge to its weight.      See, e.g., Commonwealth v.

Ferguson, 107 A.3d 206, 212-13 (Pa.Super. 2015).             This is a claim not

raised on appeal.   Accordingly, we find it waived.       See Pa.R.A.P. 2116(a)

(“No question will be considered unless it is stated in the statement of

questions involved or is fairly suggested thereby.”).

      With respect to the firearms offense, the trial court observed:

      This court also found the Defendant guilty of carrying a firearm
      without a license. The crime of carrying a firearm without a
      license is set forth in 18 Pa.C.S. § 6101(a), which states: [“]Any
      person who carries a firearm in any vehicle or any person who

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     carries a firearm on or about his person, except in his place of
     abode or fixed place of business, without a valid and lawfully
     issued license under this Chapter commits a felony of the third
     degree. … In order to convict a defendant for carrying a firearm
     without a license, the Commonwealth must prove: “(a) that the
     weapon was a firearm, (b) that the firearm was unlicensed, and
     (c) that where the firearm was concealed on or about the
     person, it was outside his home or place of business.”
     Com[monwealth] v. Parker, 847 A.2d 745, 750 (Pa.Super.
     2004).

     In this case, a firearm was never recovered, and the murder
     weapon was not found in the Defendant’s possession. However,
     this court found, based on the credible testimony of Jameelah
     Miller, that the Defendant had possessed a firearm at the time of
     the shooting.     Although this court relied on circumstantial
     evidence when it found the Defendant guilty on this count, the
     Commonwealth may sustain its burden of proving every element
     of the crime beyond a reasonable doubt by means of wholly
     circumstantial evidence. Com[monwealth] v. Baker, 72 A.3d
     652, 658 (Pa.Super. 2013). Here, the Commonwealth sought to
     prove that the Defendant had constructive possession of a
     weapon, as a gun was never found on the Defendant or
     recovered at or near the crime scene. Constructive possession is
     an inference arising from a set of facts that possession of the
     contraband was more likely than not, and it may be established
     by the totality of the circumstances. Parker, supra at 750.
     The direct, eyewitness testimony of [Ms.] Miller was strong
     circumstantial evidence of the Defendant’s possession of the
     gun.

     The remaining elements of this charge were easily proven.
     Detective Patrick Kinavey testified and provided documentary
     evidence that the Defendant was not licensed to possess a
     firearm. Additionally, this shooting occurred while the Defendant
     was located in a basketball court and a parking lot. Clearly,
     neither of these locations would qualify as the Defendant’s home
     or place of business. There was ample evidence presented at
     trial to justify this court’s conviction of the Defendant on the
     charge of carrying a firearm without a license.

Trial Court Opinion at 10-11.




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       Elliot block-quotes the above excerpt from the trial court’s Rule

1925(a) opinion before stating that because no gun was found, the

circumstantial evidence “is not of the quality nor quantity which should give

the fact finder comfort in supporting its finding.”   Appellant’s Brief, at 12.

That is the sum and substance of his discussion. He then provides citations

to case law pertaining to the weight of the evidence and concludes, “the

[c]ourt’s verdict is unsupported by competent evidence.” Id. at 13.

       Elliot provides no citation to relevant authority and no analysis of the

record evidence to support his conclusion.4 We find this claim waived. See,

e.g., Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014);

Pa.R.A.P. 2119(a).

       Judgment of sentence affirmed. Jurisdiction relinquished.

       Judge Lazarus joins in the memorandum.

       Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2015
____________________________________________


4
 For an explanation of the difference between weight and sufficiency of the
evidence claims we direct the reader to Commonwealth v. Taylor, 471
A.2d 1228, 1229-1230 (Pa. Super. 1984).



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