J-S84027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MALCOLM WILLIAM                            :
                                               :
                       Appellant               :   No. 2204 EDA 2017

              Appeal from the Judgment of Sentence May 23, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000733-2016


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                    FILED MAY 09, 2019

        Malcolm William appeals from the judgment of sentence imposed on May

23, 2017, in the Court of Common Pleas of Philadelphia County, following his

jury conviction of murder in the third degree, violation of the uniform firearms

act (VUFA), and possession of an instrument of crime (PIC).1           On appeal,

William claims his conviction of murder in the third degree was against the

weight and sufficiency of the evidence; he also challenges the trial court’s

denial of his motion in limine. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter from

the trial court’s April 18, 2018 opinion.

        On December 30, 2015, Hans Fassett (“Hans”) and Curt Styles
        (“Curt”) were working at an auto mechanics’ garage owned by
____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), and 907(a), respectively.
J-S84027-18


     Hans’s brother, Seth Fassett (“Seth”) on 5915 Girard Avenue
     when [William] began banging on their office door. Hans stated
     that [William] was yelling about getting his car looked at by his
     shop. Curt then popped the hood of [William’s] car and Hans went
     under the hood while [he] continued to yell. [William’s] yelling
     got to the point where Hans told him that he [was] not going to
     work on his car and suggested that he take his car somewhere
     else.

     When Hans told [William] to take his car somewhere else,
     [Willam] hit him in the face with a closed fist. Then, [William] and
     Hans began to fistfight. The next thing Hans heard was Seth yell,
     “gun, he has a gun.” Then Hans, [William], and Seth all fell to the
     ground, tussling. The tussle continued, and then Hans heard a
     bang and saw Seth fly backwards. Hans testified that he saw a
     gun in [William’s] hand. Hans turned to his brother and yelled to
     call 911. When Hans turned around, [William] hopped in his car
     and drove away. Shortly after, the police arrived and transported
     Seth to the hospital.

     Carlton Keys, also known as “Curt,” testified to the events that
     occurred on December 30, 2015. On that date, Curt was working
     with Hans at Seth’s auto-repair garage. He stated that he saw
     [William] about two weeks prior to the incident because he was
     supposed to work on [William’s] 2001 Mercury Villager. Curt
     testified that [William] was supposed to pick up parts and bring
     the car back to him so he could work on his car. On December
     30, 2015, he and Hans were in the auto shop when [William]
     returned. Then, [William] and Hans began arguing outside. Curt
     then saw Seth show up and at that time, [William] hit Hans in the
     face with his fist. Then, Hans and Seth began fighting [William].
     Curt stated that he began walking away because he did not want
     any involvement in the fight. As he walked away, Curt heard a
     gunshot, then ran around the comer. Curt then ran away down
     Girard Avenue. He then saw [William] driving away down Girard
     Avenue. Curt stated that he saw the gun on [William’s] hip that
     day. He claimed the gun was a nickel-plated pistol.

     [Nicholas Milton, a friend of Seth’s also testified at trial. He stated
     that he and Seth went into the shop together that day. After he
     entered the shop, he heard Seth say “don’t hit my brother,” and
     saw him run towards William. He averred that he saw William
     take a nickel-plated or dark pistol from his side and shoot Seth.


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     He also maintained that he heard Seth shout, “he has gun,” before
     William shot him.]

     On December 30, 2015, at around 2:00 p.m., Officer Lamar Coles
     received a radio call of a person with a gun and a report of a
     shooting. When Officer Coles arrived on location, he observed
     Seth lying on the ground and bleeding from the face area. He
     observed another black male on site, later identified as Seth’s
     brother, Hans. Hans told the officer that, “he shot my brother.”
     Hans pointed out 1211 Redfield Street, the house located adjacent
     to the auto body garage and stated that the gunman lived at that
     residence. Officer Coles then observed a[ fired firearm cartridge]
     in the middle of the street in front of the garage and some blood
     in that area.

     Dr. Albert Chu testified as an expert in forensic pathology. He
     testified that Dr. Bruce Wayner conducted the autopsy of Seth,
     however, Dr. Wayner is no longer with the medical examiner’s
     office. Dr. Chu reviewed Dr. Wayner’s autopsy report and testified
     to his findings. Seth was pronounced dead at 2:28 p.m. on
     December 30, 2015. Seth sustained two gunshot wounds, one
     that entered the right side of his chest[,] which went through his
     aorta and his left lung. The other gunshot went through Seth’s
     right hand.

     [William] testified to the events on the day in question. On
     December 30, 2015, [he] lived at 1211 North Redfield Street with
     his wife and four children. Three days prior to the shooting,
     [William] asked Curt for inspection stickers because his car is from
     New Jersey and he did not have anything on his car. Curt told
     him that they do not just provide inspection stickers, but he
     offered to look at the car instead. On the morning of the incident,
     [William] went outside to smoke a cigarette on his porch. Curt
     approached [William] and asked him if Hans had looked at the car
     yet and [William] responded that he did not. Curt then offered to
     look at the car. Curt looked at the car and told [William] that his
     car needed a belt, a tensioner and that his radiator was leaking.
     Curt did not know the cost for the radiator but for the belt and the
     tensioner he wanted $110 for the parts and $70 for the labor.
     [William] said he could get the belt himself for a cheaper price.

     At around 1:30 p.m. on the day in question, [William] was loading
     up his car to get ready to go to work. At this time, Hans saw
     [William] and asked him if he had his car looked at yet. [William]

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      said that Curt looked at it but that, “he was trying to get him.”
      Hans told him not to worry about it and that he would take a look
      at his car. Hans used his diagnostic tool and asked [William] if he
      wanted him to do anything else to his car. [William] told him not
      to worry about it because, “[Curt] was trying to get me.” [William]
      testified that Hans became really angry and then he and Hans got
      into a short argument. Then, Seth approached from behind
      [William] and said something to the effect of, “what is going on?”
      [William] then turned to put the hood down on his car and Hans
      punched him in the back of the head. Then [William] and Hans
      began to fight. Seth then jumped in the fight. [William] stated
      that during the fight someone said, “gun.” [William] then tried to
      get away from the fight. [William] then saw the gun on Seth so
      then he began wrestling Seth. He said that the gun was small and
      black. While they were tussling, [William] heard a shot go off and
      he got up, jumped into his car and drove away. [William] testified
      that he did not bring a gun.

      [William] did not drive to the police station to report the shooting.
      Instead, [William] drove to North Philadelphia up 59th Street and
      rode through the park. [William] stayed at the bottom of the park
      in a parking lot to, “get his thoughts together.” [William] was
      aware that police subsequently searched his home and issued a
      warrant for his arrest. [William] contacted his attorney and turned
      himself in on January 6, 2016.

                                    ****

      [William’s] story directly contradicts Han[s’] and Curt’s stor[ies].

      [In October 2016, the trial court] held a hearing to hear
      [William’s] motion in limine to exclude evidence of Seth’s
      statement on the day in question. [William] sought to exclude the
      statement where Seth yelled, “gun” when Hans and [William]
      were fighting. [William] contends that this statement should be
      excluded as inadmissible hearsay.       [The trial court] denied
      [William’s] motion and allowed the statement in as it fell under
      both the present sense impression and excited utterance
      exceptions to the rule against hearsay.

Trial Court Opinion, 4/18/2018, at 2-6 (footnote and record citations omitted).




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       The jury found William guilty of the aforementioned charges. On May

23, 2017, the trial court sentenced William to an aggregate term of 24 to 50

years’ imprisonment. On May 26, 2017, William filed a post-sentence motion

challenging the weight and sufficiency of the evidence. The trial court denied

the motion on June 15, 2017. The instant, timely appeal followed.2

       In his first issue, William argues that the evidence is insufficient to

sustain his conviction of murder in the third degree.3 William’s Brief, at 3.

Specifically, William claims that the Commonwealth did not prove that he was

the shooter and did not prove that he acted with malice.           Id. at 8.   We

disagree. Our standard of review for a claim of insufficient evidence is as

follows:

       The determination of whether sufficient evidence exists to support
       the verdict is a question of law; accordingly, our standard of
       review is de novo and our scope of review is plenary. In assessing
       [a] sufficiency challenge, we must determine whether viewing all
       the evidence admitted at trial in the light most favorable to the
       [Commonwealth], there is sufficient evidence to enable the
       factfinder to find every element of the crime beyond a reasonable
       doubt.     [T]he facts and circumstances established by the
       Commonwealth need not preclude every possibility of innocence.
       . . . [T]he 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.



____________________________________________


2 On July 30, 2017, in response to the trial court’s order, William filed a concise
statement of errors complained of on appeal. On April 18, 2018, the trial court
issued an opinion.

3William does not challenge the sufficiency of the evidence underlying his
conviction of VUFA and PIC.

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Commonwealth v. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)

(quotation marks and citations omitted).

     Regarding third degree murder . . . the statute simply states, “All
     other kinds of murder shall be murder of the third degree.” [18
     Pa.C.S.A.] § 2502(c). Importantly, § 2502(c) does not set forth
     the requisite mens rea for third degree murder; however, § 302(c)
     of the Crimes Code provides, “When the culpability sufficient to
     establish a material element of an offense is not prescribed by
     law, such element is established if a person acts intentionally,
     knowingly or recklessly with respect thereto.” Id., § 302(c)
     (emphasis added).

     Case law has further defined the elements of third degree murder,
     holding:

           [T]o convict a defendant of the offense of third[
           ]degree murder, the Commonwealth need only prove
           that the defendant killed another person with malice
           aforethought. This Court has long held that malice
           comprehends not only a particular ill-will, but . . . [also
           a] wickedness of disposition, hardness of heart,
           recklessness of consequences, and a mind regardless
           of social duty, although a particular person may not
           be intended to be injured.

     This Court has further noted:

           [T]hird degree murder is not a homicide that the
           Commonwealth must prove was committed with
           malice and without a specific intent to kill. Instead, it
           is a homicide that the Commonwealth must prove was
           committed with malice, but one with respect to which
           the Commonwealth need not prove, nor even address,
           the presence or absence of a specific intent to kill.
           Indeed, to convict a defendant for third degree
           murder, the jury need not consider whether the
           defendant had a specific intent to kill, nor make any
           finding with respect thereto.

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (some citations

omitted), cert. denied, 572 U.S. 1125 (2014).

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     Turning to the present matter, the trial court found the following:

     . . .Where the victim had been shot through the heart and lung,
     the use of a deadly weapon upon a vital part of the body was
     sufficient to permit an inference of malice necessary for murder in
     the third degree. Commonwealth v. Kennerly, 410 A.2d 319,
     321 (Pa. Super. 1979).

     The Superior Court in Kennerly determined that there was
     sufficient evidence to convict the defendant of third-degree
     murder. Id. at 320. The defendant in Kennerly was engaged in
     a heated argument with the victim before they began to exchange
     fists. Id. Shortly after, nearby police officers heard a gunshot
     and then witnessed the victim stumble to the ground. Id. The
     victim died as a result of the gunshot wound which penetrated his
     heart and lung. Id. The Superior Court reasoned that the third-
     degree murder conviction was sufficient because the victim had
     been shot through the heart and lung. Id. The Kennerly court
     cited that the use of a deadly weapon on the vital part of the body
     was sufficient for an inference of malice necessary for third-degree
     murder. Id. at 321.

     Similarly, the Superior Court in Commonwealth v. Mercado,
     649 A.2d 946, 957 (Pa. Super. 1994) found sufficient evidence to
     convict the defendant of third-degree murder. The court in
     Mercado hinged its decision on the use of a deadly weapon on
     the vital part of the victim’s body, the chest, in finding the third-
     degree murder conviction sufficient.       Id.    In Mercado, an
     eyewitness testified that the defendant shot the victim during an
     argument. Id. The Mercado court explained that this evidence
     supported a finding that the defendant acted with malice sufficient
     to support a conviction for third degree murder. Id.

     First and foremost, contrary to [William’s] contention, [the]
     Commonwealth did prove, through witness testimony, that [he]
     brought the gun on the day in question. The Commonwealth
     provided statements from three separate individuals who attested
     to [William’s] possession of a firearm on that day. Testimonial
     evidence from Curt[,] Hans[, and Milton] provided that [William]
     possessed a gun. Curt stated that he saw the gun on [William’s]
     hip. [Hans] saw the gun in [William’s] hand right before the fatal
     shots. Additionally, the Commonwealth introduced a statement
     from Seth, who yelled that [William] had a gun during their fight.
     This evidence is sufficient to show that [William] brought the gun.

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         Like the defendants in Kennerly and Mercado, [William] argues
         that there was not sufficient evidence to convict him of third-
         degree murder, as there was no malice. However, similar to the
         victims in both Kennerly and Mercado, Seth sustained a gunshot
         wound to his chest, a vital part of his body. The bullet entered
         Seth’s chest and subsequently travelled through his aorta and his
         left lung. [William] used a deadly weapon on a vital part of Seth’s
         body. Although there was some discrepancy about how exactly
         the gun fired, witness testimony provided that [William] fired the
         fatal shots. Specifically, Hans testified that he heard a bang as
         he[,] Seth and [William] were “tussling,” and then saw Seth fly
         backwards. With this, at the very least, the jury was proper in
         drawing an inference in determining that [William] pulled the
         trigger. As guided by the Superior Court in Kennerly and
         Mercado, the evidence of his possession of the gun and
         subsequent discharge of that gun at a vital part of Seth’s body,
         his chest, supported finding that [William] acted with malice
         sufficient to convict him of third-degree murder.

Trial Court Opinion, 4/18/2018, at 8-9 (record citations omitted).

         Viewing all the evidence admitted at trial in the light most favorable to

the Commonwealth as the verdict winner, we agree with the trial court’s

conclusion that there was sufficient evidence presented to the jury to support

a conviction of third-degree murder. Accordingly, his sufficiency argument

fails.

         In his second issue, William contends that the verdict was against the

weight of the evidence.4 William’s Brief, at 3. A weight of the evidence claim

concedes the sufficiency of the evidence. Commonwealth v. Widmer, 744


____________________________________________


4William preserved his weight of the evidence claim by filing a post-sentence
motion. [William’s] Post-Sentence Motions, 5/26/2017, at unnumbered pages
1-2.


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A.2d 745, 751 (Pa. 2000). A weight claim addresses the discretion of the trial

court. Id. at 752 (citation omitted). On review, the appellate court decides

whether the trial court abused its discretion when ruling on the weight claim;

it does not consider the underlying question of whether the verdict was against

the weight of the evidence. Id. at 753. We will only find an abuse of discretion

where the verdict is so contrary to the evidence as to shock one’s sense of

justice. Our review of a challenge to the weight of the evidence supporting

the verdict is settled:

      The weight of the evidence is a matter 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. A new trial is
      not warranted because of a mere conflict in the testimony and
      must have a stronger foundation than a reassessment of the
      credibility of witnesses. Rather, the role of the trial judge is to
      determine that notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them equal
      weight with all the facts is to deny justice. On appeal, our purview
      is extremely limited and is confined to whether the trial court
      abused its discretion in finding that the jury verdict did not shock
      its conscience. Thus, appellate review of a weight claim consists
      of a review of the trial court’s exercise of discretion, not a review
      of the underlying question of whether the verdict is against the
      weight of the evidence. An appellate court may not reverse a
      verdict unless it is so contrary to the evidence as to shock one’s
      sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en

banc) (citation omitted), appeal denied, 168 A.3d 1237 (Pa. 2017).

      William’s weight of the evidence claim is merely a restatement of his

sufficiency challenge, which we discuss supra. He views the evidence in the

light most favorable to himself, and does not explain how the trial court


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abused its discretion in denying his weight claim. Rather, his two-paragraph

argument consists only of his bald allegation that the verdict must be against

the weight of the evidence because “no one saw the shooting!” William’s Brief,

at 13. He also complains of the lack of forensic evidence. Id. Conversely,

the trial court, in its opinion, discusses, in detail, why it did not find that the

verdict was against the weight of the evidence.             Trial Court Opinion,

4/18/2018,     at 10-11.   William provides us with no basis upon which to

disagree. Accordingly, his weight claim fails.

      In his third and final issue, William claims that the trial court erred in

denying his motion in limine to preclude admission at trial of Seth’s statement

that William had a gun. William’s Brief, at 14-21. William also argues that

the statement’s admission violated his rights under the Confrontation Clause.

The trial court found the statement was admissible under both the excited

utterance and present sense impression exceptions to the hearsay rule. Trial

Court Opinion, 4/18/2018, at 11-13.

      Our review of a trial court’s ruling on a motion in limine is well

established:

      When ruling on a trial court’s decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. A trial court has broad discretion to determine whether
      evidence is admissible, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support to be clearly erroneous.




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Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014)

(quotation marks and citations omitted).

       We first address William’s claim that Seth’s statement does not qualify

under either the “excited utterance” or present sense impression exceptions

to the hearsay rule. For the reasons discussed below, we find that William

has waived this claim.

       In his brief, William does not explain why Seth’s statement is neither an

excited utterance nor a present sense impression. William’s Brief, at 16-18.

Instead, he argues, confusingly, that what “is really at issue” is Hans’

statement to the police. Id. at 16. However, the record does not support this

claim; Hans never testified that he told the police that he heard his brother

say William had a gun. His testimony was that he heard Seth say during the

altercation that William had a gun.            N.T. Trial, 11/29/2016, at 87.   More

importantly, William waived any such claim because he did not argue this

theory in either his motion in limine or his post-sentence motion and we have

long held that an appellant cannot raise a new theory on appeal.

Commonwealth v. Goolson, 189 A.3d 994, 1000 (Pa. Super. 2018)

(citations omitted).5 Thus, the claim must fail.

____________________________________________


5In any event, the claim lacks merit. Our Rules of Evidence define an excited
utterance as:

       [a] statement relating to a startling event or condition made while
       the declarant was under the stress of excitement that it caused.



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       Alternatively, William argues that, even if the statement at issue was

admissible under the excited utterance or present sense impression

exceptions to the hearsay rule, Seth’s statement was testimonial hearsay,

and, therefore, was improperly admitted into evidence in violation of the

Confrontation Clause and Due Process standard as established in Crawford

v. Washington, 541 U.S. 36 (2004). William’s Brief at 14. No relief is due.

       The Confrontation Clause of the Sixth Amendment provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted


____________________________________________




Pa.R.E. 803(2). As is known, excited utterances fall under the common
law concept of res gestae. Commonwealth v. Pronkoskie, 383 A.2d
858, 860 (Pa. 1978). Res gestae statements, such as excited
utterances, present sense impressions, and expressions of present
bodily conditions are normally excepted out of the hearsay rule, because
the reliability of such statements are established by the statement being
made contemporaneous with a provoking event. Id.

The present sense impression exception provides that a hearsay
statement is admissible if it is “describing or explaining an event or
condition, made while or immediately after the declarant perceived it.”
Pa.R.E. 803(1). “The exception allows testimony concerning events
observed by the declarant regardless of whether or not the declarant
was excited. The statement must be made at the time of the event or
so shortly thereafter that the declarant would be unlikely to have the
opportunity to decide to make a false statement.” Bugosh v. Allen
Refractories Co., 932 A.2d 901, 914 (Pa. Super. 2007), appeal
dismissed, 971 A.2d 1228 (Pa. 2009).

Here, we agree with the trial court that Seth’s statement that William
had a gun made contemporaneously with the altercation and only a few
moments before he was shot qualifies under both exceptions. See Trial
Court Opinion, 4/18/2018, at 12-13.



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with the witnesses against him.” U.S. Const. amend. VI. The Confrontation

Clause bars the “admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant [ ] had

a prior opportunity for cross-examination.” Crawford, 541 U.S. 36, 53–54.

       The United States Supreme Court has described the distinction between

“testimonial” statements and “nontestimonial” statements as follows:

       Statements are nontestimonial when made in the course of police
       interrogation under circumstances objectively indicating that the
       primary purpose of the interrogation is to enable police assistance
       to meet an ongoing emergency. They are testimonial when the
       circumstances objectively indicate that there is no such ongoing
       emergency, and that the primary purpose of the interrogation is
       to establish or prove past events potentially relevant to later
       criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006) (footnote omitted).6

       As previously discussed, the totality of the circumstances demonstrates

that Seth’s statement reflects his immediate reaction to seeing William with a

gun during the altercation.            Both Hans and Milton overheard Seth’s

spontaneous statement.           As such, the statement was not testimonial.




____________________________________________


6 We note that, while the above-quoted language refers to statements that
are the product of police interrogation, the Confrontation Clause applies
regardless of whether the statements at issue resulted from an interrogation
or not. Davis v. Washington, 547 U.S. at 822 n. 1 (“This is not to imply,
however, that statements made in the absence of any interrogation are
necessarily nontestimonial. The Framers were no more willing to exempt from
cross-examination volunteered testimony or answers to open-ended questions
than they were to exempt answers to detailed interrogation.”).

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Accordingly, the Confrontation Clause does not bar the admission of this

evidence at trial.

      For all the foregoing reasons, we affirm William’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/19




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