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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARLIN KELLY,                              :
                                               :
                       Appellant               :      No. 1301 WDA 2017

             Appeal from the Judgment of Sentence April 20, 2017
                in the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0000133-2013

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 17, 2018

        Marlin Kelly (“Kelly”) appeals from the judgment of sentence imposed

following his convictions of second-degree murder, second-degree murder of

an unborn child, and criminal conspiracy to commit robbery.1 We affirm.

        Around August 2012, Kelly became involved in a heroin-dealing

operation with three other men: Stephen Murray (“Murray”), Murray’s brother,

Herbert Murray (“Herbert”), and Tyrone Fuller (“Fuller”).      In early October

2012, a disagreement among the four divided the group into two enterprises:

Kelly with Fuller, and Murray with Herbert. On October 21, 2012, Murray stole

approximately six bricks of heroin that had belonged to Kelly. After Fuller

discovered that Murray had taken the heroin, and was selling it to Fuller and



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1   See 18 Pa.C.S.A. §§ 2502(b), 2604(b), 903(a)(1).
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Kelly’s usual customers, Kelly and Fuller formed a plan to retrieve the heroin

by robbing Murray at gunpoint.

      Kelly and Fuller enlisted the help of James Leo (“Leo”), a heroin addict

who frequently provided transportation for Fuller in exchange for heroin.

Fuller and Kelly asked Leo to buy heroin from Murray, so that Fuller and Kelly

could determine where he lived. In exchange, Fuller and Kelly would provide

the buy money and Leo could keep the heroin that he purchased.

      Leo agreed to the arrangement and on October 28, 2012, drove Kelly

and Fuller to Murray’s apartment building. Leo called Murray and arranged to

buy the heroin. Kelly and Fuller, both armed with handguns, ascended the

exterior stairs of the apartment building, and hid in a shadowy area in the

stairwell, waiting to ambush whoever met with Leo.

      While Kelly and Fuller were waiting, someone approached their position,

causing them to retreat to another floor. Kelly stopped outside of the front

door to Murray’s apartment.    At that moment, Murray’s girlfriend, Conekia

Finney (“Finney”), opened the door, startling Kelly, and causing him to point

his gun into the doorway and pull the trigger.    Finney was seven months

pregnant with her daughter, Sekiah. After realizing he had shot someone,

Kelly fled the scene with Fuller following close behind, unaware of what had

happened. Both Finney and Sekiah died as a result of the gunshot wound.

      Several days later, Kelly and Fuller were apprehended.        Kelly was

charged with criminal homicide, criminal homicide of an unborn child, robbery,


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and conspiracy to commit robbery. Fuller cooperated with the police, leading

them to the murder weapon. Fuller also entered into a plea agreement and

agreed to testify against Kelly. Following his first jury trial, Kelly was found

guilty of second-degree murder, second-degree murder of an unborn child,

and criminal conspiracy to commit robbery. This court reversed the judgment

of sentence based on the trial court’s failure to sustain a challenge for cause

of a juror who, as an active police officer in Beaver County, had an ongoing

relationship with the Beaver County District Attorney’s office, including the

two Assistant District Attorneys prosecuting the case, and knew several of the

police officers set to testify in the case. See Commonwealth v. Kelly, 134

A.3d 59, 64 (Pa. Super. 2016). This Court remanded for a new trial. See Id.

at 65.

         Following his second jury trial, Kelly was found guilty of second-degree

murder, second-degree murder of an unborn child, and conspiracy to commit

robbery. Kelly was sentenced to an aggregate term of life in prison. Kelly

filed a timely Post-Sentence Motion, challenging the sufficiency and weight of

the evidence, which was denied. Kelly filed a timely Notice of Appeal. 2

         On appeal, Kelly raises the following questions for our review:

         I. Whether the Commonwealth failed to present sufficient
         evidence to prove beyond a reasonable doubt that [Kelly] was
         guilty of [second-degree murder], second[-]degree murder of an
____________________________________________


2The trial court did not order Kelly to file a Pa.R.A.P. 1925 concise statement
of matters complained of on appeal. However, the trial court filed a Rule
1925(a) Opinion.

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      unborn child, and criminal conspiracy – robbery – inflict serious
      bodily injury?

      II. Was the jury verdict of guilty against the weight of the evidence
      presented at trial?

Brief for Appellant at 4 (capitalization omitted, issues reordered).

      In his first claim, Kelly alleges that the evidence was insufficient to

support his convictions for second-degree murder, second-degree murder of

an unborn child, and conspiracy to commit robbery.         Id. at 19-21.      Kelly

asserts that the evidence did not establish that he had conspired with Fuller.

Id. at 20-21. Kelly argues that there was no evidence that he entered into

an agreement with Fuller to rob anyone, nor evidence that he agreed to help

or solicited Fuller to rob anyone. Id.

      We apply the following standard of review when considering a challenge

to the sufficiency of the evidence:

             [W]hether[,] viewing all the evidence admitted at trial in the
      light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that as a matter of law no probability of fact may
      be drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact[,] while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, or part or none of the evidence.

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

omitted).

      “A criminal homicide constitutes murder of the second degree when it is

committed while defendant was engaged as a principal or an accomplice in

the perpetration of a felony.” 18 Pa.C.S.A. § 2502. “Perpetration of a felony”

is defined as “[t]he act of the defendant in engaging in or being an accomplice

in the commission of, or an attempt to commit, or flight after committing, or

attempting to commit robbery … by force or threat of force….” Id. § 2502(d).

      “A criminal homicide of an unborn child constitutes second degree

murder of an unborn child when it is committed while the defendant was

engaged as a principal or an accomplice in the perpetration of a felony.” Id.

§ 2604.

      Criminal Conspiracy is defined, in relevant part, at section 903 of the

Crimes Code:

      A person is guilty of conspiracy with another person or persons to
      commit a crime if with the intent of promoting or facilitating its
      commission he: (1) agrees with such other person or persons that
      they or one of more of them will engage in conduct which
      constitutes such crime or an attempt or solicitation to commit such
      crime….

Id. § 903(a)(1). “The Commonwealth does not have to prove that there was

an express agreement to perform the criminal act; rather, a shared

understanding    that   the   crime   would   be   committed    is   sufficient.”

Commonwealth v. Nypaver, 69 A.3d 708, 715 (Pa. Super. 2013).


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            An explicit or formal agreement to commit crimes can
      seldom, if ever, be proved and it need not be, for proof of a
      criminal partnership is almost invariably extracted from the
      circumstances that attend its activities. Thus, a conspiracy may
      be inferred where it is demonstrated that the relation, conduct, or
      circumstances of the parties, and the overt acts of the co-
      conspirators sufficiently prove the formation of a criminal
      confederation.

Commonwealth v. McCoy, 69 A.3d 658, 664 (Pa. Super. 2013) (citations,

brackets, and quotation marks omitted).

      Fuller testified that he and Kelly had discussed a plan to steal heroin

from Murray by threatening him with firearms and bodily injury. See N.T.,

8/19/14, at 108-16, 120-26. He testified that Kelly was angry about Murray

stealing Kelly’s heroin and selling it to Fuller and Kelly’s customers, and agreed

with Fuller to rob Murray. Id. at 125. Fuller further testified that the two had

discussed using Leo as bait to lure Murray out of his apartment, then ambush

him with their guns. Id. Fuller stated that he had called Leo to transport

them to Murray’s apartment, that Kelly and Fuller then armed themselves with

firearms, that they dispatched Leo to lure Murray out of his apartment, and

hid in waiting outside his apartment, with the intent to ambush Murray. See

id. at 122-67, 182-83. Fuller testified that Kelly shot Finney. Id. at 166.

      Leo corroborated Fuller’s testimony, testifying that he picked up Kelly

and Fuller; was instructed by Fuller, with Kelly present, to show them where

Murray lived and to call Murray to make the drug deal; and that Fuller told

Leo, in the presence of Kelly, that they were going to “beat” Murray, which




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Leo took to mean that they were going to rob him. See N.T., 8/15/14, at 35-

51, 155-65.

     Therefore, the evidence viewed in a light most favorable to the

Commonwealth, is sufficient to demonstrate that Kelly was actively engaged

in a conspiracy to commit robbery. See Commonwealth v. Weston, 749

A.2d 458, 463 (Pa. 2000) (stating that evidence showing that the co-

conspirator had an argument with the victim, then solicited the defendant’s

help to confront the victim, and the defendant and co-conspirator armed

themselves, then confronted the victim together, is sufficient to establish

shared     criminal   intent   required    for   criminal   conspiracy);   see   also

Commonwealth v. Lamb, 455 A.2d 678, 685 (Pa. Super. 1983) (stating that

the uncorroborated testimony of a co-conspirator to the defendant’s

participation in a conspiracy to commit robbery is sufficient evidence to

establish criminal conspiracy despite the lack of an oral agreement by the

defendant or any particular action by the defendant to aid or solicit the

robbery). Further, Kelly shot Finney, in furtherance of a felony, causing her

and her unborn child’s death, a fact that Kelly does not dispute. See Trial

Court Opinion, 10/25/17, at 13.           Thus, upon our review of the evidence,

viewed in a light most favorable to the Commonwealth, we conclude that the

evidence was sufficient to sustain Kelly’s convictions for second-degree

murder, second-degree murder of an unborn child, and conspiracy to commit

robbery.


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      In his second claim, Kelly argues that the verdict was against the weight

of the evidence presented at trial. Brief for Appellant at 15-19. Specifically,

he claims that it was against the weight of the evidence for the jury to

conclude that Kelly was a participant in the underlying conspiracy to commit

robbery, and as a result, it was also against the weight of the evidence to find

him guilty of second-degree murder and second-degree murder of an unborn

child. Id. He argues that Fuller planned the robbery on his own, and Kelly

followed along, completely unaware of Fuller’s intentions. Id. at 17-19.

              The law pertaining to weight of the evidence claims is well-
      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.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)

(quotation marks and citations omitted).

      Here, the trial court found that the verdict, based upon the substantial

evidence found credible by the jury, did not shock one’s conscience. See Trial

Court Opinion, 10/25/17, at 17-18. Based upon our review, we conclude that


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the trial court did not abuse its discretion in denying Kelly’s weight of the

evidence claim.    See Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.

Super. 2009) (stating that “[w]hen the challenge to the weight of the evidence

is predicated on the credibility of trial testimony, our review of the trial court’s

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.”).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2018




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