J-S71023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARLON GLENN                               :
                                               :
                       Appellant               :   No. 2438 EDA 2018

         Appeal from the Judgment of Sentence Entered March 16, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004532-2017


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.:                               Filed: February 7, 2020



        Marlon Glenn (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of voluntary manslaughter, possession of

an instrument of crime (PIC), firearms not to be carried without a license,

carrying firearms on a public street or public property in Philadelphia, and two

counts of theft by unlawful taking.1 We affirm.

        On May 30, 2017, Appellant was charged in connection with the murder

of Ramone Anthony Smith (Smith). See Trial Court Opinion, 11/16/18, at 2-

3. The trial court recounted the evidence as follows:

              At trial, the Commonwealth       presented the testimony of
        Philadelphia police officers Andrew    Miller, Terrance Lewis, Terry
        Tull, Earl Tilghman, and Kelly         Walker, Philadelphia police
        detectives Joseph Centeno and          James Burke, Philadelphia
____________________________________________


1   18 Pa.C.S.A. §§ 2503(a)(1), 907(a), 6106(a)(1), 6108, and 3921(a).
J-S71023-19


     associate medical examiner Dr. Lindsay Simon, and Lerin Gilliard,
     David Westin, Von Williams, Margie Lazenbury, Carole Moore,
     Dennis Moore Jr., and Cameron Davis. [Appellant] presented no
     evidence.      Viewed in the light most favorable to the
     Commonwealth as the verdict winner, the evidence established
     the following.

            After work on Friday, March 3, 2017, Ramone Anthony
     Smith, the victim, drove his co-worker, Lerin Gilliard, to her home,
     but first stopped to pick up [Appellant]. After dropping off Gilliard,
     Smith and [Appellant] arrived at Smith’s house on the 4800 block
     of Bouvier Street in Philadelphia. Smith and [Appellant] had been
     friends for several months and were also engaged in a sexual
     relationship, which had been limited to Smith performing oral sex
     on [Appellant].      [Appellant], however, did not identify as
     homosexual, and he lived and shared a bedroom with a woman.

            Sometime after 9:00 p.m., [Appellant] was in Smith’s
     basement working out. Smith walked over to [Appellant] and
     began to straddle him, which made [Appellant] upset. The two
     men got into a struggle during which [Appellant] grabbed Smith’s
     gun from a holster on Smith. The men proceeded upstairs into
     the kitchen, where [Appellant], using Smith’s gun, shot Smith one
     time in the back of the head.

            Because Smith did not answer his phone after 9 p.m. on
     Friday, all day Saturday, and Sunday morning, Smith’s friends,
     Cameron Davis and David Westin, grew concerned because they
     typically spoke with him every day. On Sunday, March 5, 2017,
     Davis and Westin went to Smith’s house and noticed that Smith’s
     Toyota Camry was missing. The friends entered Smith’s house
     using a spare key that Smith had given them and they discovered
     the house was in “complete disarray” and looked “ransacked.” In
     the living room, couch pillows were on the floor, and Smith’s
     television was missing. In the dining room, papers were scattered
     across the table. In the middle upstairs bedroom, which Smith
     had converted to a walk-in closet because he loved to shop and
     had a large collection of wallets, watches and shoes, many of
     Smith’s things were gone. Westin found Smith’s dead body in the
     kitchen with a pool of dry blood surrounding his head. The medical
     examiner determined that the cause of death was a gunshot
     wound to the back of the head.




                                     -2-
J-S71023-19


              Philadelphia police detectives then conducted an
        investigation of the shooting. When police arrived at Smith’s
        house, Davis and Westin gave detectives a photo of [Appellant],
        whom they believed was at Smith’s house on that Friday night.
        Police were able to identify [Appellant] and discovered his last
        known address was the 200 block of North 61st Street. Officers
        also recovered Smith’s FitBit and cell phone, and an analysis of
        the FitBit showed that Smith stopped moving at 9:42 p.m. on
        March 3, 2017.

              Officers also learned of Smith’s car’s vehicle identification
        number [] and placed it in stolen status. The next day, March 6,
        2017, police located Smith’s car on the 100 block of North
        Robinson Street, which is located approximately a block and a half
        away from [Appellant’s] residence.        Shortly after initiating
        surveillance on the vehicle, [Appellant] arrived. Wearing blue
        rubber surgical gloves, [Appellant] connected jumper cables to
        Smith’s car. He also went inside the front of Smith’s vehicle.
        Officers then approached [Appellant], handcuffed him, and
        transported him to the Homicide Unit on 8th and Race Streets.

              At Homicide, [Appellant] was placed in an interview room
        and waived his Miranda[2] rights. However, he later requested a
        lawyer, so detectives immediately ended their questioning. The
        next day, March 7, 2017, [Appellant] asked to resume speaking
        with Detective James Burns and again waived his Miranda rights.
        During questioning [Appellant] wrote “private” on a piece of
        paper, crossed it out after Detective Burns saw it, and then asked
        to use the bathroom. While Detective Burns and [Appellant] were
        out of the interview room, [Appellant] confessed to killing Smith
        and told him the events that led to Smith’s death. Although
        [Appellant] indicated that he would repeat his confession on
        camera, [Appellant] refused to do so once he and Detective Burns
        re-entered the interview room. Instead, he claimed that what he
        told Detective Burns was merely a hypothetical.

              While [Appellant] was at the Homicide Unit, detectives
        executed a search warrant on [Appellant’s] residence, and
        recovered items, including wallets, watches and shoes, which
        were later identified by Davis and Williams as items belonging to
        Smith. In addition, after police cleared the crime scene, Von
____________________________________________


2   Miranda v. Arizona, 86 S.Ct. 1602 (U.S. 1966).

                                           -3-
J-S71023-19


       Williams, Smith’s close family friend, went to Smith’s house to
       clean the residence. On a shelf in the kitchen near where Smith’s
       body was found, Williams found a 9 [millimeter] Ruger fired
       cartridge casing. Police recovered Smith’s gun sometime in May
       2017, when it was confiscated from Kyvon Jenkins in Abington
       Township.        Jenkins lived in the West Philadelphia area,
       approximately one mile away from where [Appellant] resided.
       Ballistics testing showed that the fired cartridge casing found near
       Smith’s body matched Smith’s gun.

Trial Court Opinion, 11/16/18, at 2-5 (citations to notes of testimony omitted,

footnote added).

       On December 27, 2017, a jury rendered their guilty verdicts. On March

16, 2018, the trial court sentenced Appellant to an aggregate 21 to 42 years

of incarceration. Appellant filed a timely post-sentence motion, which the trial

court denied on July 10, 2018. Appellant filed a timely notice of appeal. Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

       Appellant raises two issues for our review:

       1. Is [] Appellant entitled to an arrest of judgment on the verdict
       of voluntary manslaughter, PIC and VUFA, where the verdict was
       not supported by sufficient evidence?

       2. Did the Trial Court err in denying Post Sentence Motion for New
       Trial and is [] Appellant entitled to a new trial as the verdict was
       not supported by the greater weight of the evidence?

Appellant’s Brief at 3.3

____________________________________________


3 Appellant’s Rule 1925(b) statement raises an additional discretionary
aspects of sentencing claim. See Rule 1925(b) Statement, 8/29/18, at
2. However, because Appellant abandoned this claim in his brief, we will not
address it. See Appellant’s Brief at 3; see also Commonwealth v. Briggs,



                                           -4-
J-S71023-19



       Initially, we observe that although Appellant purports to challenge the

sufficiency of the evidence as to his convictions of PIC, firearms not to be

carried without a license, and carrying a firearm in public in Philadelphia, the

argument section of his brief does not refer specifically to any of these

offenses nor does Appellant address any elements of those crimes.           See

Appellant’s Brief at 9-12. Consequently, Appellant has waived these claims.

See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (claim

of insufficient evidence for multiple convictions was underdeveloped, did not

set forth elements of the crimes, did not argue which specific element was not

met, and was thus waived); Commonwealth v. Plante, 914 A.2d 916, 924

(Pa. Super. 2006) (“We have repeatedly held that failure to develop an

argument with citation to, and analysis of, relevant authority waives the issue

on review.”). We therefore limit our review to Appellant’s challenge to the

sufficiency of the evidence as it relates to his voluntary manslaughter

conviction.

       Our standard of review is well-settled:

       As a general matter, our standard of review of sufficiency claims
       requires that we evaluate the record “in the light most favorable
       to the verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence.”
       Commonwealth v. Widmer, [ ] 744 A.2d 745, 751 ([Pa.] 2000).
       “Evidence will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt.”
____________________________________________


12 A.3d 291, 310 n.19 (Pa. 2011), cert. denied, 132 S.Ct. 267 (2011)
(refusing to address claim appellant raised with trial court but subsequently
abandoned in brief).

                                           -5-
J-S71023-19


      Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super.
      2005).

      Nevertheless, “the Commonwealth need not establish guilt to a
      mathematical certainty.” Id.; see also Commonwealth v.
      Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts
      and circumstances established by the Commonwealth need not be
      absolutely incompatible with the defendant’s innocence”). Any
      doubt about the defendant’s guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances. See Commonwealth v. DiStefano,
      782 A.2d 574, 582 (Pa. Super. 2001).

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence.       See Brewer, 876 A.2d at 1032.
      Accordingly, “[t]he fact that the evidence establishing a
      defendant’s participation in a crime is circumstantial does not
      preclude a conviction where the evidence coupled with the
      reasonable inferences drawn therefrom overcomes the
      presumption of innocence.” Id. (quoting Commonwealth v.
      Murphy, 795 A.2d 1025, 1038–39 (Pa. Super. 2002)).
      Significantly, we may not substitute our judgment for that of the
      fact finder; thus, so long as the evidence adduced, accepted in the
      light most favorable to the Commonwealth, demonstrates the
      respective elements of a defendant’s crimes beyond a reasonable
      doubt, the appellant’s convictions will be upheld. See Brewer,
      876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013) (citing

Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013)).

      Appellant argues that the evidence was insufficient to support his

conviction of voluntary manslaughter because “no one saw” him shoot Smith.

Appellant’s Brief at 11. Appellant asserts that the Commonwealth failed to

prove that he “fired the shot that entered the victim’s head, which killed him,”

id. at 9, and claims “[t]here is nothing in the record which would refute the




                                     -6-
J-S71023-19



possibility of a third party having entered the home, shot the victim and

retreated to safety.” Id. at 10.

       The Pennsylvania Crimes Code provides that voluntary manslaughter

occurs: (1) where the defendant acted under a sudden and intense passion

resulting from a serious provocation; or (2) where the defendant knowingly

and intentionally killed an individual under the unreasonable belief that the

killing was justified. 18 Pa.C.S.A. § 2503(a), (b).

       Appellant’s sufficiency argument is belied by the record. After reviewing

the notes of testimony, we have determined that The Honorable Glenn B.

Bronson, sitting as the trial court, has capably and accurately addressed

Appellant’s sufficiency argument. See Trial Court Opinion, 11/16/18, at 5-9;

see also id. at 5 (“All of this evidence demonstrated that [Appellant], after a

struggle, pursued Smith with a gun and shot him in the head with the intent

to kill him.”).   We therefore adopt the trial court’s analysis as our own in

disposing of this issue.

       In his second issue, Appellant argues that the guilty verdicts of voluntary

manslaughter and “weapons offenses” were against the weight of the

evidence.4 Appellant’s Brief at 13.

       We begin with our standard of review:

       When the challenge to the weight of the evidence is predicated on
       the credibility of trial testimony, our review of the trial court’s
____________________________________________


4Appellant properly preserved this issue in compliance with Pennsylvania Rule
of Criminal Procedure 607 by raising it with the trial court in a post-sentence
motion. Appellant’s Motion for New Trial, 3/22/18, at 1-2.

                                           -7-
J-S71023-19


      decision is extremely limited. Generally, unless the evidence is so
      unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not cognizable
      on appellate review. Moreover, where the trial court has ruled on
      the weight claim below, an appellate court’s role is not to consider
      the underlying question of whether the verdict is against the
      weight of the evidence. Rather, appellate review is limited to
      whether the trial court palpably abused its discretion in ruling on
      the weight claim.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted). “[I]t is for the fact-finder to make credibility determinations, and

the finder of fact may believe all, part, or none of a witness’s testimony.” Id.

(citation omitted).   To allow an appellant “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.”      Commonwealth v.

Talbert, 129 A.3d 536, 545 (Pa. Super. 2016) (citation omitted).

      Instantly, Appellant’s weight argument consists of two cursory

paragraphs in which he states: “The Commonwealth did not prove that []

Appellant used any weapon or shot the victim.           The argument is not

complicated; simply put, the Commonwealth failed to prove that it was the

Appellant who shot and killed the victim.” Appellant’s Brief at 13. Appellant’s

argument invokes the elements of voluntary manslaughter, and thus revisits

the sufficiency of the evidence. See Commonwealth v. Widmer, 744 A.2d

745, 751-52 (Pa. 2000) (explaining the differences between sufficiency and

weight of the evidence claims); see also Commonwealth v. Sexton, ---

A.3d ----, 2019 WL 5540999, *5 (Pa. Super. 2019) (“A motion for a new trial


                                     -8-
J-S71023-19


on the grounds that the verdict is contrary to the weight of the evidence,

concedes that there is sufficient evidence to sustain the verdict.”). Appellant

has failed to develop his challenge to the weight of the evidence, and therefore

he is not entitled to relief.   See id. at *6 (“It is Appellant’s obligation to

sufficiently develop arguments in his brief by applying the relevant law to the

facts of the case, persuade this Court that there were errors below, and

convince us relief is due because of those errors.”) (citation omitted).

      In sum, there is no merit to the issues Appellant raises on appeal. The

parties shall attach a copy of the trial court’s November 16, 2018 opinion in

the event of further proceedings relevant to this matter.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/20




                                      -9-
                                                                                                        Circulated 01/13/2020 11:09 AM




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


                                                                                       CP-51-CR-0004532-2017

                                                                                 /"'    -··-·-·.
                                                                                       Cf'-51-CR-0004532-2017 Gnm111 v Glenn, Ma:ton
                     v.                                                                                   Opi11iun



            MARLON GLENN

                                                            OPINION
                                                                                            I IIll 111111111111111111
                                                                                                  . s1�otE�s-�1

            BRONSON,J.                                                                 November 16, 2018

            On December 27, 2017, following a jury trial before this Court, defendant Marlon Glenn

 was convicted of one count each of voluntary manslaughter ( 18 Pa.C.S. § 2503(a)(l)), carrying a

 firearm without a license ( 18 Pa.C.S. § 6106(aXl)), possession of an instrument of crime ("PIC")

 (18 Pa.C.S. § 907(a)), carrying firearms on public streets or public property in Philadelphia (18

 Pa.C.S. § 6108), and two counts of theft by unlawful taking (18 Pa.C.S. § 392l(a)). On March

 16, 2016, the court imposed consecutive terms of l O to 20 years of incarceration for the

 voluntary manslaughter, 3 t;; to 7 years of incarceration for carrying a firearm without a license,

 2 Yz to 5 years incarceration for carrying firearms on a public street or public property in

 Philadelphia, 2 � to 5 years incarceration for P IC, and 2 Yz to 5 years of incarceration for the

 theft by unlawful taking charge, for an aggregate sentence of 21 to 42 years incarceration.' On

 March 22, 2018, defendant filed post-sentence motions.which the Court denied on July 10,

 2018.

           · Defendant has now appealed from the judgment of sentence entered by the Court on the

 grounds that: 1) the evidence was legally insufficient to sustain the verdict; 2) the verdict was


 1   Due to merger, no sentence was entered on the conviction for the second count of'thcf] by unlawful taking.

                                                             1
against the weight of the evidence; and 3) the Court abused its discretion in imposing an

excessive sentence. Statement of Matters Complained of Pursuant to Rule of Appellate

Procedure l 925(b) ("Statement of Matters") at i!11-3. For the reasons set forth below,

defendant's claims are without merit and the judgment of sentence should be affirmed,

                                  I. FACTUAL BACKGROUND

       At trial, the Commonwealth presented the testimony of Philadelphia police officers

Andrew Miller, Terrance Lewis, Terry Tull, Earl Tilghman, and Kelly Walker, Philadelphia

police detectives Joseph Centeno and James Burke, Philadelphia associate medical examiner Dr.

Lindsay Simon, and Lerin Gilliard, David Westin, Von Williams, Margie Lazcnbury, Carole

Moore, Dennis Moore Jr., and Cameron Davis. Defendant presented no evidence. Viewed in the

light most favorable to the Commonwealth as the verdict winner, the evidence established the

following.

       After work on Friday, March 3, 2017, Ramone Anthony Smith, the victim, drove his co-

worker, Lerin Gilliard, to her home, but first stopped to pick up defendant. N.T. 12/20/17 at 85.

After dropping off Gilliard, Smith and defendant arrived at Smith's house on the 4800 block of

Bouvier Street in Philadelphia. N.T. 12/20/17 at 145. Smith and defendant had been friends for

several months and were also engaged in a sexual relationship, which had been limited to Smith

performing oral sex on defendant. N.T. 12/20/17 at 107-09; N.T. l 2/22/17 at 38. Defendant,

however, did not identify as homosexual, and he lived and shared ·a bedroom with a woman.

N. T. 12/21/17 at 6-7, 62.

       Sometime after 9:00 p.m., defendant was in Smith's basement working out. N.T.

12/22/17 at 38. Smith walked over to defendant and began to straddle him, which made

defendant upset. Id. The two men got into a struggle durin� which defendant grabbed Smith's



                                                2
gun from a holster on Smith. id. The men proceeded upstairs into the kitchen, where defendant,

using Smith's gun, shot Smith one time in the back of the head. N.T. 12/22/17 at 37-38.

       Because Smith did not answer his phone after 9 p.m. on Friday, all day Saturday, and

Sunday morning, Smith's friends, Cameron Davis and David Westin, grew concerned because

they typically spoke with him every day. N.T. 12/20/17 at 105-06; N.T. 12/21/17 at 64-65. On

Sunday, March 5, 2017, Davis and Westin went to Smith's house and noticed that Smith's

Toyota Camry was missing. N.T. 12/20/17 at 109; N.T. 12/21/17 at 66-67. The friends entered

Smith's house using a spare key that Smith had given them and they discovered the house was in

"complete disarray" and looked "ransacked." N.T. 12/20/17 at 110-11; N.T. 12/21/17 at 67. In

the living room, couch pillows were on the floor, and Smith's television was missing. N.T.

12/20117 at 111, 117. In the dining· room, papers were scattered across the table. N.T. 12/20/17

at 111, 117-18. In the middle upstairs bedroom, which Smith had converted to a walk-in closet

because he loved to shop and had a large collection of wallets, watches and shoes, many of

Smith's things were gone. N.T. 12/20/17 at 227-28. Westin found Smith's dead body in the

kitchen with a pool of dry blood surrounding his head. N.T. 12/20/17 at 111-12, 146. The

medical examiner determined that the cause of death was a gunshot wound to the back of the

head. N.T. 12/20/17 at I 89.

       Philadelphia police detectives then conducted an investigation of the shooting. When

police arrived at Smith's house, Davis and Westin gave detectives a photo of defendant, whom

they believed was at Smith's house on that Friday night. N.T. 12/21/17 at 113. Police were able

to identify defendant and discovered his last known address was the 200 block of North   6P'

Street. N.T. 12/21/17 at 116. Officers also recovered Smith's FitBit and cell phone, and an




                                               3
analysis of the FitBit showed that Smith stopped moving at.9:42 p.m. on March 3, 2017. N.T.

12/21/17 at 111, 113; N.T. 12/26/17 at 13.

       Officers also learned of Smith's car's vehicle identification number ("VIN") and placed it

in stolen status. N.T. 12/20/17 at 149; N.T. 12/21/17 at l 14-15. The next day, March 6, 2017,

police located Smith's car on the 100 block of North Robinson Street, which is located

approximately a block and a half away from defendant's residence. N.T. 12/21/17 at 85, 115.

Shortly after initiating surveillance on the vehicle, defendant arrived. N.T. 12/21/17 at 83, 115.

Wearing blue rubber surgical gloves, defendant connected jumper cables to Smith's car. N.T.

12/21/17 at 83-84. He also went inside the front of Smith's vehicle. Id. Officers then

approached defendant, handcuffed him, and transported him to the Homicide Unit on 81h and

RaceStreets. N.T.12/21/17at83-84, 118.
           .                 .
       At Homicide, defendant was placed in an interview room and waived his Miranda rights.

N.T. 12/21/17 at 19. However, he later requested a lawyer, so detectives immediately ended

their questioning. N.T. 12/22/17 at 12-13. The next day, March 7, 2017, defendant asked to

resume speaking with Detective James Burns and again waived his Miranda rights. N.T.

12/22/17 at 13, 25. During questioning, defendant wrote "private" on a piece of paper, crossed it

out after Detective Bums saw it, and then asked to use the bathroom. N.T. 12/22il 7 at 33, 36.

While Detective Bums and defendant were out of the interview room, defendant confessed to

killing Smith and told him the events that led to Smith's death. N.T. 12/22/17 at 37-39.

Although defendant indicated that he would repeat his confession on camera, defendant refused

to do so once he and Detective-Burns re-entered the interview room. N.T. 12/26/17 at 56-57.

Instead: he claimed that what he told Detective Burns was merely a hypothetical. Id.




                                                 4
        While defendant was at the Homicide Unit, detectives executed a search warrant on

defendant's residence, and recovered items, including wallets, watches and shoes, which were

later identified by Davis andWilliams as items belonging to Smith. N.T. 12/20/17 at 232·35;

12/22/17 at 12, 16-17. In addition, after police cleared the crime scene, Von Williams, Smith's

close family friend, went to Smith's house to clean the residence. N.T. 12/20/17 at 228. On a

shelf in the kitchen near where Smith's body was found, Williams found a 9 mm Ruger fired

cartridge casing. N.T. 12/20/17 at 229; N.T. 12122/17 at l 8. Police recovered Smith's gun

sometime in May 2017, when it was confiscated from Kyvon Jenkins in Abington Township,

N.T. 12/26/17 at 18� 19. Jenkins lived in the West Philadelphia area, approximately one mile

away from where defendant resided. N.T. 12/26/17 at l 9·20. Ballistics testing showed that the

fired cartridge casing found near Smith's body matched Smith's gun. N.T. 12/26/17 at 88-90.

                                        II. DISCUSSION

           A. Sufficiency of the Evidence

       Defendant first claims that "the evidence was insufficient to support the verdict which

found the defendant guilty of Voluntary Manslaughter, Possession of an Instrument of Crime

(PIC), Theft-FI, and violation of the Uniform Firearms Act (VUFA)-- §6106 and §6108."

Specifically, defendant claims that "the evidence was grossly unreliable and would lead to a

verdict being based on surmise and corijccturc, all in violation of Commonwealth v Karkaria,

625 A.2d 1167 (Pa. 1993)." Statement of Matters at   1   1. This claim is without merit.

       In considering a challenge to the sufficiency of the evidence, the Court must decide

whether the evidence at trial, viewed in the light most favorable to the Commonwealth, together

with all reasonable inferences therefrom, could enable the fact-finder to find every element of the

crimes charged beyond a reasonable doubt. Commonwealth v, Walsh, 36 A.3d 613, 618 (Pa.



                                                5
Super. 2012). In making this assessment, a reviewing court may not weigh the evidence and

substitute its own judgment for that of the fact-finder, who is free to believe all, part, or none of

the evidence. Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). The Commonwealth

may satisfy its burden of proof entirely by circumstantial evidence. Id. Finally, "[ilf the record

contains support for the verdict, it may not be disturbed." Commonwealth v. Adams, 882 A.2d

496, 499 (Pa. Super. 2005) (quoting Commonwealth v. Bums, 765 A.2d 1144, 1148 (Pa. Super.

2000), app. denied, 782 A.2d 542 (Pa. 2001)).

        I. Voluntary Manslaughter

       "The law provides for a conviction of voluntary manslaughter under two different

circumstances. A person is guilty of voluntary manslaughter if, either he acted under a sudden

and intense passion resulting from a serious provocation or if he 'knowingly and intentionally

kills an individual' under the unreasonable belief that the killing was justified." Commonwealth
                       .                      .
v. Weston, 749 A.2d 458, 462 (Pa. 2000) (citing 18 Pa.C.S. § 2503(a)-(b)). In the instant case,

only the "sudden and intense passion" version of voluntary manslaughter was submitted to the

jury. 18 Pa.C.S. § 2503(a); see N.T. 12/26/17 at 194-96. For either version, "a conviction for

voluntary manslaughter will be upheld as long as the evidence is sufficient to show that the

elements   of murder were present." Commonwealth v. Harner, 546 A.2d 1241, 1242 (Pa. Super.
1988), app. denied 564 A.2d 915 (Pa. 1989). "[W]here the evidence would be sufficient to ·

support a conviction of murder, the return of a verdict of voluntary manslaughter is strictly

within the jury's prerogative .... " Id. (quoting Commonwealth v. Hoffman, 266 A.2d 726, 731

(Pa. 1970)). Accordingly, the Court first looks to whether the evidence was sufficient to support

a first degree murder conviction.   ·




                                                  6
       "The evidence is sufficient to establish first-degree murder where the Commonwealth

proves that (1) a human being was unlawfully killed; (2) the person accused is responsible for the

killing; and (3) the accused acted with the specific intent to kill." Commonwealth v, Edwards,

903 A.2d 1139, 1146 (Pa. 2006). The specific intent to kill may be inferred from a defendant's

use of a deadly weapon on a vital part.of the victim's body. Commonwealth v. Robertson, 874

A.2d 1200, 1207 (Pa. Super. 2005).

       Here, there was ample evidence to establish that defendant was guilty of first degree

murder. First, defendant admitted to the Detective James Bums that he had shot Smith. N.T.

12/22/17 at 36-38. According to Bums, defendant stated that while he was working out in

Smith's basement, Smith came over and straddled defendant, which upset defendant and started

a struggle between them. N.T. 12/22/17 at 38. Defendant stated to Bums that during that

struggle, defendant grabbed Smith's gun, which was holstered on Smith, and then defendant and

Smith went upstairs into the kitchen where defendant shot him. N.T. 12/22/17 at 38-39.

Although defendant made these admissions to Burns <luring a break from a video-taped

interview, and defendant refused to repeat his inculpatory admissions oil video, Burns gave

credible testimony regarding the admissions, which was corroborated by notes of the

conversation that Bums   had prepared later that night and the next day.   N.T. 12/22/17 al 41-42.
                                                     .            .
       In addition, Detective Rums had testified that, while questioning defendant, defendant

wrote the word "private" on a piece of paper and then crossed it out and asked for a break right

before making his inculpatory statements. N.T. 12/22/17 at 33, 36. The paper with the crossed

out word "private" was admitted into evidence and offered additional compelling corroboration

for Detective Burns' testimony.




                                                 7
       Moreover, defendant's confession to Detective Bums was strongly corroborated by other

evidence. First, there was substantial evidence that defendant and Smith were together at the

time of Smith's death. The evidence established that Smith died on Friday evening, March 3,

2017. This was proven through an analysis of Smith's FitBit, which showed that he stopped

moving at 9:42 p.m. on that date, N._T. 12/26/17 at 13, and through testimony that Smith stopped

answering text messages and phone calls around that time. N.T. 12/21/17 at 64. Along with the

evidence regarding time of death, the Commonwealth produced several witnesses who testified

that defendant and Smith were together at that time. N.T. 12/20/17 at 104; N.T. 12/21/17 at 25,

40, 63. Notably, at 8:53 p.m., less than one hour before the killing, Smith tcxtcd his friend,

Cameron Davis, that defendant was "gettingon [his] nerves" at that time. N.T. 12/22/17 at 63-

64.

       In addition, evidence surfaced months after the confession offering additional compelling

corroboration to the confession. In particular, defendant had told Burns during the confession

not only that the murder weapon was Smith's own gun, but that the gun was disposed ofin "a

drug house." N.T. 12/22/17 at 37. In May of 2017, about two months after the confession,

Smith's gun was confiscated from Kyvon Jenkins in Abington Township. N.T. 12/26/17 at 18-

19. According to Detective Bums, Jenkins lived in the West Philadelphia area, approximately

one mile away from where defendant resided. N.T. 12/26/17 at 19-20. Ballistics tests matched

that gun to the fired cartridge casing found in Smith's home after the murder. N.T. 12/26/17 at

88-90. Because only the killer could have known what weapon was used to murder Smith at the

time that defendant gave his confession, the evidence regarding the gun was highly probative

proof that Detective Bums truthfuJly recounted defendant's confession.




                                                 8
       Finally, the medical examiner testified that Smith had a single gunshot wound to the back

of his head, a vital part of his body, killing him. N.T. 12/20/17 at 183. All of this evidence

demonstrated that defendant, alter a struggle, pursued Smith with a gun and shot him in the head ·

with intent to kill him. Because such evidence would have been sufficient to support a first·

degree murder conviction, the evidence was legally sufficient to support the voluntary

manslaughter conviction.

       In his Statement of Errors, defendant's sole contention regarding the sufficiency of the

evidence is that the evidence "was grossly unreliable and would lead to a verdict being based on

surmise and conjecture, all in violation of Commonwealth v. Karkaria, 625 A.2d 1167 (Pa.

1993).'; This claim is frivolous. In Karkaria, the defendant was charged with raping his step·

sister, who was 14 years old at the time of the trial. 625 A.2d at 1167-68. The Commonwealth's

case rested entirely on the credibility of the step-sister, whose testimony was "disturbingly

vague," unsupported by any physical evidence, and left the record "riddled with critical

inconsistencies." 625 A.2d at 1170-71. The evidence in the instant case, as described above,

sutlers from none of the infirmities present in Karkaria.

       2. Theft by Unlawful Taking

       A person is guilty of theft by unlawful tiling "if he unlawfully takes, or exercises

unlawful control over, movable property of another 'with intent to deprive him thereof." 18

Pa.C.S. § 3921 (a). Theft will be graded as a third degree felony "if the amount involved exceeds

$2,000, or if the property stolen is an automobile .... " 18 Pa.C.S. § 3903(a.l).

       Here, there was sufficient evidence for the jury to conclude that defendant took many of·

Smith's personal and confidential items after shouting him. First, David Westin testified that

Smith's house looked like it had been "ransacked" on Sunday, March 5, 2017, when Westin



                                                 9
found Smith's dead body. N.T. 12/20/17 at 111. Cameron Davis testified that the house was in

"complete disarray." N.T. 12/21/17 at 67. Davis, Westin, and Von Williams also testified that

Smith had a large collection of wallets, watches, and shoes that he kept in his middle upstairs

bedroom. N.T. 12/20/17 at 114-15, 227-28; N.T. 12/21/17 at 53. The prosecution introduced

pictures of the condition of Smith's house after his body was found in which many of Smith's

shoes, wallets, and watches were gone froni the middle bedroom. See N.T. 12/20/17 at 120. In

addition, Smith's television was missing from his living room, and papers were scattered across

his dining room table. N.T. 12/20/17 at 111, 117-18.

       Moreover, Margie Lazenbury, the woman with whom defendant shared a bedroom,

testified that when she woke up on the morning of Saturday, March 4, 2017, she saw clothing,

shoes, and bags in her room that were not present the previous night. N. T. 12/21117 at 8-9.

Alter police executed a search warrant on defendant's residence, police recovered items,

including wallets, watches and shoes. N.T. 12/20/17 al 209-214. Both prior to trial and at trial,

Williams and Davis identified some of these items as belonging to Smith. N.T. 12/20/17 at 231-

35; N.T. 12/21/17 at 70-74. In addition, Detective Joseph Centeno testified that police found a

nylon bag at defendant's residence that cont.ained numerous items of paperwork, mail and

identification bearing Smith's name. N.T. 12/20/17 at 211.

       Further, there was ample evidence that defendant stole Smith's Toyota Camry. Detective

Burns testified that police located Smith's car approximately a block and a half away from

defendant's residence. N.T. l 2/21/17. Then, while police were surveilling the vehicle on March

6, 2017, one day after Smith's boc.ly was found, 'defendant was seen wearing blue latex gloves

and connecting jumper cables to Smith's car and going through paperwork inside the car. N.T.

12/21/17 at 83-84. Finally, five witnesses, Westin, Davis, Williams, Lerin Gilliard, Carole



                                                10
Moore, and Dennis Moore Jr., all of whom were close with Smith, testified that Smith rarely let

anyone borrow his car and never let anyone borrow his car for a few days. N.T. 12/20/17 at 86,

109-10, 223-24; N.T. 12/21/17 at 27, 39.

       Accordingly, the evidence established that defendant was guilty of theft by unlawful

taking as a felony of the third degree.

       3. PIC

       To sustain a conviction for PJC, the Commonwealth must establish that defendant

"possessejd] any instrument of crime with intent to employ it criminally." 18 Pa.C.S. § 907(a).

An «instrument of crime" is defined as "(I) [ajnything specially made or specially adapted for

criminal use .... [or) (2) [a]nything usedfor criminal purposes and possessed by the actor under

circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S-. § 907(d).

       Here, the evidence described above established that defendant intentionally killed Smith

with Smith's own gun. Accordingly, the Commonwealth proved that defendant possessed the

gun for a criminal purpose, used it to commit a crime, and possessed it under circumstances not

appropriate for its lawful use. Therefore, the evidence established that defendant was guilty of

PIC.

       4. Carrving a Firearm without a License

       A person violates section 6106 of the Uniform Firearms Act if he "carries a firearm in

any vehicle or ... carries a firearm concealed on or about his person, except in his place of abode

or fixed place of business, without a valid and lawfully issued license." 18   Pa.·c.s. § 6106(a)(l).

"Firearm" is defined by section 6102 to include "[a]ny pistol or revolver with a barrel length less

than 15 inches." 18 Pa. C.S. § 6102. In order to fall under the purview of section 6106, the

object must also either be operable or the defendant must have under his control the means to



                                                 11
make the object operable. See Commonwealth v. Gainer, 7 A.3d 291, 297 (Pa. Super. 20 I 0),

app. denied, 23 A.3d l 05 5 (Pa. 2011 ).

       Here, the parties stipulated that defendant did not have a license to carry a firearm. N.T.

'12/26/17 at 71. In addition, the evidence described above established that defendant, after killing

Smith, left the scene in Smith's car taking the gun and other stolen property with him. This was

sufficient evidence for the jury to conclude that defendant was guilty of carrying a firearm

without a license.

       5. Carrying Firearms on Public Streets or Public Propertv in Philadelphia

       A person violates section 6108 of the Uniform Firearms Act if he "carrjies] a firearm,

rifle or shotgun at any time upon the public streets or upon any public property in

[Philadelphia]." 18 Pa.C.S. § 6108. Here, as stated above, the evidence established that

defendantwas in possession of Smith's gun on the streets of Philadelphia as he carried it away

from Smith's residence in a stolen car. That was sufficient. to prove that defendant was guilty of

carrying a firearm on public streets or public property in Philadelphia.

           B. Weight ofthe Evidence

       Defendant next claims that the verdict is against the weight of the evidence, specifically

arguing that "[t]he Commonwealth's evidence did not prove that it was Defendant who shot and

killed the victim and did not prove that the Defendant stole anything from the person or house of

the victim." Statement of Matters at� 2. This claim is without merit.

       It is well-established that a new trial may only be granted by the trial court where the

verdict was so contrary to the weight of the evidence as to '" shock one's sense of justice.":

Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004 ), app. denied, 878 A.2d 864

(Pa. 2005) (quoting Commonwealth v. Hunter, 554 A.2d 550, 555) (Pa. Super. 1989)).



                                                 12
Moreover, credibility determinations are solely within the province of the fact-finder, and "[a]n

appellate court cannot substitute its judgment for that of the finder of fact." Commonwealth v.

Taylor, 63 A.3d 327, 330 (Pa. Super. 2013) (internal quotation omitted). In considering a claim

that the trial court erred in refusing to find that a verdict was against the weight of the evidence,

"appellate review is limited to whether the trial court palpably abused its discretion in ruling on

the weight claim." Id. (quoting Shaffer, 40 A.3d at 1253).

       Here, as discussed above, the Commonwealth presented compelling evidence of

defendant's guilt, including a confession and 'very strong corroborating evidence. This included

very credible proof that defendant was the killer and that he stole numerous items fromSmith

after killing him. See pp. 7-10, above.

       Accordingly, the evidence plainly established that defendant committed the crimes for

which he was convicted. Because the evidence fully supported the verdicts, the Court did not

abuse its discretion in denying defendant's motion for a new trial.

           C. Abuse of Discretion    al   Sentencing

       Finally, defendant claims the following:

       [T]he Honorable Court abused its discretion at time of sentencing when it
       sentenced the defendant to an aggregate term of twenty-one (21) to forty-two (42)
                                               or
       years incarceration. It was an abuse discretion to sentence in the aggravated
       range and, under all of the facts of this case, and considering the Sentencing
       Guidelines, the undersigned, most respectfully, contends that the sentence
       imposed was unduly harsh.

Statement of Matters at �[ 3. This claim is without merit.

       "Sentencing is a matter vested in the sound discretion of the sentencing judge, and a

sentence will not be disturbed on appeal absent a manifest abuse of that discretion."

Commonwealth v. Anderson, 552 A.2d 1064, 1072 (Pa. Super. 1988), app. denied, 571 A.2d 379

(Pa. 1989); see Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). The sentencing court


                                                    13
must consider the need to protect the public, the gravity of the offense in relation to the impact

upon the victim and on the community, the rehabilitative needs of the defendant, and the

Sentencing Guidelines. 42 Pa.C.S. § 972l(b); see Commonwealth v. Hyland: 875 A.2d 1175,

1184 (Pa. Super. 2005) (quoting Commonwealth v. Monahan, 860 A.2d 180� 185 (Pa. Super.

2004)). Where the sentence falls outside the Sentencing Guidelines, the sentence should be

affirmed on appeal unless it is "unreasonable." 42 Pa.C.S. § 978l(c)(3); see Commonwealth v.

P.l.S, 894 A.2d 120, 130 (Pa. Super. 2006). "The sentencing court may deviate from the

guidelines, if necessary, to fashion a sentence which takes into account the protection of the

public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it

relates to the impact on the life of the victim and the community." Commonwealth v.
                                                           .                         .
Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002), app. denied, 820 A.2d 703 (Pa. 2003). The

factual basis and reasons for the departure must be stated on the record. Id

       As to consecutive sentences, "[!Jong standing precedent of (the Superior] Court

recognizes that [the Sentencing Code] affords the sentencing court discretion to impose its

sentence concurrently or consecutively to other sentences being imposed at the same time or to

sentences already imposed." Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005).
                                .                .
Accordingly, the decision to sentence consecutively fails to raise a substantial question on appeal

unless that decision "raises the aggregate sentence to, what appears upon its face to be, an

excessive level in light of the criminal conduct at issue in the case." Commonwealth v.
                            .        .
Mastromarino, 2 A.3<l 581, 587 (P'1. Super. 2010), app. denied, 14 A.3d 825 (Pa. 201 l).

Therefore, an appellate court will not disturb consecutive sentences unless the aggregate

sentence is .. grossly disparate" to the defendant's conduct, or "viscerally appcar[s] as patently

'unreasonable.:" Commonwealth v. Gonzalez-Dejusus, 994 /\.2d 595, 599 (Pa. Super. 2010).



                                                     14
        Here, while defendant's sentences on most of the charges were upward departures from

the guidelines, the sentence was reasonable for the reasons explained by the Court in detail

during the sentencing hearing.2 In determining the appropriate sentence in this case, the Court

explicitly considered the evidence adduced al trial and during the suppression hearing, the

sentencing memoranda submitted by both sides, the sentencing guidelines, victim impact

statements from Smith's family and friends, defendant's rehabilitative needs, the pre-sentence

report, defendant's mental health evaluation, the need for the protection of the public, and the

gravity of the offense in relation to the impact on the victim and on the community. N.T.

3/16/17 at 33-35. The Court stated that the killing defendant committed was not within the

heartland of the typical voluntary manslaughter case and· determined that there were aggravating

circumstances that warranted deviating upwards from the guidelines and for imposing

consecutive sentences. N.T. 3/16/17 at 35.

        First, the Court observed that Smith had befriended defendant, helped him, and invited

him as a guest in Smith's home, and yet defendant put a bullet in the back of Smith's head. N.T.

3/16/ l 7 at 36. The Court also noted that in cases of heat of passion voluntary manslaughter, it is

not typical to find a defendant who, after such a killing, takes the Lime Lo canvas the victim's

house and steal his personal belongings and car, all while the victim lay dead nearby. N.T.

3/16/17 at 36-37. In addition, the Court noted that such behavior showed a hardness of heart not

often seen in voluntary manslaughter cases. N.T. 3116/17 at 36. The Court also stated that the

consecutive sentences were necessary to achieve an aggregate sentence that was commensurate

with the egregious misbehavior that led to the charges in this case. N.T. 3/16/17 at 37.


2 The Court sentenced defendant to standard range sentences on the charges of carrying a firearm without a license
(18 Pa.C.S. § 6106(a)(l)) and carrying a firearm on public streets or public property in Philadelphia (18 Pa.C.S. §
6108). The sentences on the charges of voluntary manslaughter (18 Pa.C.S. § 2503(a)(l)), PIC (18 Pa.C.S. § 907(a)),
and theft by unlawful taking (18 Pa.C.S. § 3921(a)) were upward departures.

                                                       · 15
       Accordingly, the record establishes that there were compelling reasons for the departure

above the Guidelines and the consecutive sentences in this case, As a result, the sentence \\-1lS

reasonable and should not be disturbed.

                                        111. CONCLUSION

       For all of the foregoing reasons: the Court's judgment of sentence should be affirmed.



                                                             BY THE COURT:




                                                             GLENN B. BRONSON, J.




                                                 16
Commonwealth v. Marlon Glenn                                        CP-51-CR-0004532-2017
Type of Order: 1925(a) Opinion ·


                                    PROOF OF SERVICE


I hereby certify that Jam this day serving the foregoing Court Order upon the persorus), and in
the mannerindicated below, which.service satisfies the requirements of Pa.R.Crim.P.l 14:


Defense Counsel/Party:
                             David Rudenstein, Esquire
                             9411 Evans Street
                             Philadelphia, PA 1911 S


Type of Service:      ( ) Personal (X) First Class Mail O Other, please specify:


District Attorney:
                             Lawrence Goode, Esquire
                             Interim Supervisor, Appeals Unit
                             Office of the District Attorney
                             Three South Penn Square
                             Philadelphia, PA 19107-3499

Type of Service       () Personal () First Class Mail (X) Other, please specify: Interoffice Mail


Additional Counsel/Party:

                            . Joseph D. Selctyn, Esquire
                             Prothonotary
                             Office of the Prothonotary - Superior Court
                             530 Walnut Street, Suite 315
                             Philadelphia, PA 19106

Type of Service:      ( ) Personal (X) First Class Mail () Other, please specify:


Dated: November 16, 2018


 tlku>vvv �
Thomas R. Smith
Law Clerk to Hon. Glenn B. Bronson
