J-S65020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROGER J. MCBRIDE                           :
                                               :
                       Appellant               :   No. 3494 EDA 2016

           Appeal from the Judgment of Sentence October 19, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000523-2016


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                   FILED MARCH 27, 2018

       Roger J. McBride appeals from the judgment of sentence entered on

October 19, 2016, in the Delaware County Court of Common Pleas.                 On

September 12, 2016, the trial court convicted McBride of third-degree murder,

aggravated assault, recklessly endangering another person, and possession of

a weapon.1 The court sentenced McBride to an aggregate term of 14 to 28

years’ incarceration, followed by seven years’ probation. On appeal, McBride

challenges the sufficiency and weight of the evidence. After a thorough review

of the submissions by the parties, the certified record, and relevant law, we

affirm.

       The trial court set forth the facts and procedural history as follows:


____________________________________________


1   18 Pa.C.S. §§ 2502(c), 2702(a)(1), 2705, and 3925(a), respectively.
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            On December 20, 2015, Lieutenant Joseph Pretti of the
     Eddystone Borough Police Department, responded to a residence
     at 1220 Saville Avenue in Eddystone, Delaware County,
     Pennsylvania, after receiving a call for a shooting at that address.
     When Lieutenant Pretti approached the residence, he was met by
     the person who called 911, Paul McGonigle. Mr. McGonigle
     advised Lieutenant Pretti that his friend who was shot, as well as
     the shooter, were still inside the residence. When inside of the
     residence, Lieutenant Pretti observed Roger McBride … seated at
     the dining room table, as well as the body of a female, later
     identified as Jami Vincent, lying on the floor with a gunshot wound
     to the head.

            On December 20, 2015, Paul McGonigle arrived at 1220
     Saville Avenue at approximately 5:45 p.m., as he was supposed
     to get together with his friends for dinner that evening. When Mr.
     McGonigle arrived at the house, he sat downstairs on the couch,
     waiting for his friends to get ready to go to dinner. While Mr.
     McGonigle waited on the couch, one of the friends, Jack Mooney,
     came downstairs to get shower supplies out of his bag. Mr.
     McGonigle greeted Mr. Mooney, but did not pay too much
     attention to what Mr. Mooney was doing as Mr. McGonigle was
     reading the news on his phone at the time. Mc. McGonigle did
     notice however, that Mr. Mooney removed a handgun from his bag
     and placed it on the table as he proceeded to take out his clothing
     from the bag. No one else was in the room with Mr. McGonigle
     and Mr. Mooney at that time. A few minutes later, Mr. McGonigle
     noticed [McBride] descend the stairs, and accordingly, he greeted
     him. [McBride] offered Mr. McGonigle a drink to which Mr.
     McGonigle declined. Within the next few minutes, Mr. McGonigle
     noticed [McBride] re-enter the room and saw that he had the gun
     in his hand. Mr. McGonigle noted that [McBride] commented that
     he liked the gun, stating that he liked the weight and the feel.
     Further, [McBride] kept switching the gun back and forth in his
     hands from right to left. Moments later, Jami Vincent came
     bouncing down the stairs, turned the corner into the living room
     and stopped in front of [McBride]. Next, Mr. McGonigle saw
     [McBride] extend his right arm and hold the handgun to Jami
     Vincent’s head. Immediately thereafter, McGonigle heard a very
     low pop, saw a small [f]lash of light, and saw Jami fall to the
     ground. [McBride] in response started yelling, “oh my God, I
     didn’t know it was loaded.” Mr. McGonigle stood up, saw blood on
     the floor, before proceeding outside to call 911.


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           On Sunday, December 20, 2015, Jack Mooney, a Staff
     Sergeant with the United States Army, was staying at Jami
     Vincent’s home as a weekend guest. Mr. Mooney arrived to the
     home on Friday evening, and brought his belongings into the
     house, including his backpack that contained his handgun.
     Additionally, on Friday evening, [McBride] brought a gun case out
     of Mr. Mooney’s trunk into the house. Mr. Mooney had two
     firearms in that case, in addition to the one that he had in his
     backpack. Mr. Mooney showed each of the firearms to [McBride],
     while the magazine was out of the gun, meaning that the firearm
     was empty. After Mr. Mooney was handed back the gun, he put
     the magazine back inside of it and put it in his backpack. Mr.
     Mooney stated that on Sunday, December 20, 2015, he came
     downstairs to grab his shower supplies out of the bag where the
     handgun was located. Out of habit, Mr. Mooney stated that he
     cleared the gun, to ensure that there was no round in the
     chamber. Mr. Mooney further stated that he never keeps a round
     in the chamber of his firearms. Mr. Mooney placed the handgun
     on the coffee table, before heading back upstairs to shower.

            On December 20, 2015, Detective Thomas Scarpato, Jr. was
     employed by the Delaware County Criminal Investigation Division
     in the homicide unit. On that evening, Detective Scarpato was
     called out to 1220 Saville Avenue for a reported homicide. When
     Detective Scarpato had arrived, the scene had already been
     secured and the suspect was taken off of location. After obtaining
     a search warrant, Detective Scarpato went back to 1220 Saville
     Avenue, and collected a gun, fire cartridge, shell casing, projectile,
     and a case containing other firearms, as evidence. Further,
     Detective Scarpato also secured a search warrant for the person
     of Roger McBride, and accordingly, [McBride] was swabbed and
     pictures of him were taken. One of the pictures included a picture
     of [him] showing blood splatter on his face. Next, Detective
     Scarpato attempted to interview [McBride], but [McBride] invoked
     his right to counsel. Detective Scarpato took notice of the strong
     odor of alcohol emanating from [McBride]’s person.

           Detective Louis Grandizio is employed by the Delaware
     County Criminal Investigation Division as a firearms examiner1.
     Detective Grandizo examined the handgun that was used to kill
     Jami Vincent2. Detective Grandizo first determined that the gun
     was operable. Next, Detective Grandizo tested for accidental
     discharge and the gun passed the test, meaning that a person
     would have to purposefully fire for it to go off. Additionally,

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     Detective Grandizio conducted the trigger pull test to ensure that
     the gun required 7 pounds of pressure to pull the trigger, as the
     manufacture specified in the design. Further, Detective Grandizio
     examined the fire cartridge of the gun and examined the bullet
     specimens from the firearm. Detective Grandizio also noted that
     there was a blood-like substance on the frame of the gun.
     _____________________

        1  There was a stipulation by and between counsel that
        Detective Grandizio is an expert in firearms examination,
        identification, and ballistics.

        2 Springfield A[r]mory, XD model, .45 caliber, automatic
       with serial number of S3221610.
     _____________________

                                     …

            [McBride] was arrested on December 20, 2015. A bench
     trial was held in front of this Court on September 9, 2016, after
     [McBride] waived his right to a jury.         The Commonwealth
     presented testimony from Paul McGonigle, Jack Mooney,
     Lieutenant Joseph Petti, Detective Thomas Scarpato, and
     Detective Louis Grandizio, all of whom testified to the facts as
     stated above. As its final witness, the Commonwealth called Dr.
     Frederick Neil Hellman, MD, the chief medical examiner for
     Delaware County.3 Dr. Hellman testified that he made the
     determination, based on a reasonable degree of medical certainty,
     that the cause of death to Jami Vincent was a single gunshot
     wound to the head, and that manner of death was homicide. The
     Defense did not put up any witnesses or evidence.

          This Court held its decision under advisement and gave
     counsel for both sides the opportunity to submit any case law that
     they wanted the court to review.4 On September 12, 2016, this
     Court found [McBride] Guilty of Murder of the Third Degree5,
     Aggravated Assault6, Recklessly Endangering Another Person7,
     and Possession of a Weapon8.
     _____________________

        3   Counsel stipulated that Dr. Hellman is an expert in the
        field of forensic pathology.




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          4 The Commonwealth argued that [McBride] was guilty of
          Third Degree Murder, while counsel for [McBride] asserted
          that the lesser charge of Involuntary Manslaughter should
          have been applied under the circumstances surrounding
          Jami Vincent’s death.

          5   18 Pa. C.S. § 2502(c)

          6   18 Pa. C.S. § 2702(a)(1)

          7   18 Pa. C.S. § 2705

          818 Pa. C.S. § 907(b)
       _____________________

              On October 19, 2016, after reading various letters and
       listening to testimony from family and friends on behalf of both
       the victim and [McBride], this Court sentenced [McBride] as
       follows: Count 1: Murder in the Third Degree 168 to 336 months
       SCI followed by 5 years consecutive probation; Count 3:
       Aggravated Assault plus serious bodily injury, merged with Count
       1 for sentencing purposes; Count 4: Reckless Endangering
       Another Person 2 years’ probation consecutive to Count 1; Count
       5: Possession of an Instrument of Crime 2 years’ probation to run
       concurrent to Count 4.9
       _____________________

          9At the sentencing hearing, the Court noted on the record,
         that the testimony of Jack Mooney was not considered
         credible at all, and thus this Court believed that the gun was
         loaded prior to the incident occurring.
       _____________________

Trial Court Opinion, 12/22/2016, at 1-6 (record citations omitted). McBride

did not file post-sentence motions but did file this appeal.2



____________________________________________


2  The court did not order McBride to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless, he filed a
concise statement on October 27, 2016. On December 22, 2016, the trial
court issued an opinion under Pa.R.A.P. 1925(a).

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          In his first issue, McBride contends the evidence was insufficient to

support his third-degree murder conviction because the Commonwealth failed

to demonstrate that he acted with malice.              See McBride’s Brief at 10.

Specifically, he argues: “[T]he evidence used by the Commonwealth to prove

malice was insufficient because it did not rise to the ‘magnitude of malice’

necessary for a third degree murder conviction. Instantly, a search of the

record reflects that the unfortunate killing in this case was accidental,

unintentional and without evil design.”          McBride’s Brief at 12-13 (citations

omitted).      He states the “record is devoid of even a scintilla of hatred,

wickedness or ill will”3 and points to the following: (1) he was a close friend

of the decedent and “was in complete utter shock when the weapon was

discharged;”4 (2) his friends testified he “was a ‘good guy’ and viewed the

incident as an accident;”5 (3) he aided his friend in dispatching 9-1-1 after the

shooting and cooperated with police; (4) his “first statement to police was that

‘it was an accident and he didn’t know [the gun] was loaded;’”6 and (5) he

“did not provide false and contradictory accounts of the events or attempt to


____________________________________________


3   McBride’s Brief at 13.

4   Id.

5   Id.

6   Id. at 13-14.




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divert     suspicion.”7     Moreover,      McBride   contends:   “At   most,   the

Commonwealth established that [he] was guilty of involuntary manslaughter

since he caused the death of another person the unlawful act in a reckless or

grossly negligent manner.” Id. at 15. Lastly, he states the Commonwealth

did not establish he acted with a motive and there was “no competent

evidence that [he] intended to kill [the] decedent for any plausible reason.”

Id. at 16.

         Our well-settled standard of review regarding sufficiency of the evidence

claims is as follows:

         The standard we apply in reviewing the sufficiency of the evidence
         is whether 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, part or none of the evidence.




____________________________________________


7   Id. at 14.

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

omitted), appeal denied, 112 A.3d 651 (Pa. 2015).

     Regarding third degree murder … the statute simply states, “All
     other kinds of murder shall be murder of the third degree.” [18
     Pa.C.S.] § 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.

     Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363 (Pa.
     2005) (alteration in original) (internal citation, quotation, and
     emphasis omitted); see also Commonwealth v. Drum, 58 Pa.
     9, 15 (1868) (defining malice as quoted above). 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.




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       Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 317
       (Pa. 2001) (quoting Commonwealth v. Young, 748 A.2d 166,
       174-75, 561 Pa. 34 (Pa. 1999)).

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013), cert. denied, 134

S.Ct. 2314 (U.S. 2014).

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

             [A]s third-degree murder requires a showing of malice
       which can be inferred from the use of a deadly weapon on a vital
       part of the victim’s body, there is sufficient evidence to prove that
       [McBride] acted with the requisite malice. Evidence at trial
       showed that Jami Vincent died from a single gunshot wound to the
       head. Further, it is undisputed that [McBride] was the person who
       held a gun to Jami Vincent’s head and pulled the trigger. As such,
       under the law there is sufficient evidence to support [McBride]’s
       third-degree murder conviction.

Trial Court Opinion, 12/22/2016, at 7.

       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. We note “[m]alice may be found where the defendant consciously

disregarded an unjustified and extremely high risk that his actions might cause

serious bodily injury.” Commonwealth v. Cottam, 616 A.2d 988, 1004 (Pa.

Super. 1992), appeal denied, 636 A.2d 632 (Pa. 1993).        Moreover, “[m]alice

may be inferred from the use of a deadly weapon[8] on a vital part of the

____________________________________________


8   The Pennsylvania Crimes Code defines a “deadly weapon” as:

       Any firearm, whether loaded or unloaded, or any device designed
       as a weapon and capable of producing death or serious bodily
       injury, or any other device or instrumentality which, in the manner



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victim’s body. Further, malice may be inferred after considering the totality

of the circumstances.” Commonwealth v. Son Truong, 36 A.3d 592, 598

(Pa. Super. 2012) (citations and quotation marks omitted), appeal denied, 57

A.3d 70 (Pa. 2012).        Here, as the court pointed out, the evidence at trial

clearly established McBride took Mooney’s .45 caliber handgun, raised it to

Vincent’s forehead, and then pulled the trigger. See N.T., 9/7/2016, at 20.

Vincent died as a result of McBride’s actions. As such, one can reasonably

infer malice where McBride used a deadly weapon on a vital part of Vincent’s

body.      Furthermore, malice was established, as McBride acted with

“recklessness of consequences” and “a mind regardless of social duty” when

he decided not to check the gun to ensure that it was not loaded before he

aimed at the victim’s head and then fired the weapon. Santos, 876 A.2d at

363; see Commonwealth v. Seibert, 622 A.2d 361, 365 (Pa. Super. 1993)

(“An intentional act which indicates recklessness of consequences and a mind

regardless of social duty is sufficient, even if there was no intent to harm

another.”), appeal denied, 642 A.2d 485 (Pa. 1994).9           While McBride may

____________________________________________


        in which it is used or intended to be used, is calculated or likely to
        produce death or serious bodily injury.

18 Pa.C.S. § 2301.

9   See also Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981)
(upheld third-degree murder conviction, concluding that “there was sufficient
evidence to prove a malicious homicide beyond a reasonable doubt. Appellant
intentionally pointed a loaded gun at the victim and shot him in the chest.



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J-S65020-17


have been friends with the victim, aided in seeking medical assistance after

the shooting, and did not demonstrate “hatred, wickedness or ill will,”10 his

actions did meet other categories included in malice. See id. Accordingly,

his sufficiency argument fails.

       McBride’s second argument is a claim that the verdict rendered by the

jury was against the weight of the evidence. See McBride’s Brief at 17-19.

       When considering a challenge to the weight of the evidence, we must

bear in mind:

       A weight of the evidence claim concedes that the evidence is
       sufficient to sustain the verdict, but seeks a new trial on the
       ground that the evidence was so one-sided or so weighted in favor
       of acquittal that a guilty verdict shocks one’s sense of justice.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations

omitted), cert. denied, 134 S.Ct. 1792 (U.S. 2014). Our review of a weight

claim is well-settled:


____________________________________________


Under these circumstances, whether the gun discharged accidentally or was
fired intentionally is irrelevant for the purpose of determining the existence of
malice. Even if, as appellant claims, he did not know that the gun was loaded
and intended only to ‘scare’ the victim, his conduct nevertheless unjustifiably
created an extremely high degree of risk, thereby evincing a wanton and
reckless disregard for human life. By intentionally aiming a gun at [the victim]
without knowing for a certainty that it was not loaded, appellant exhibited that
type of cruel and wanton conduct of which legal malice is made.”); Seibert,
supra (found circumstances established implied malice where defendant, not
knowing for certain whether the gun was loaded, held the weapon against the
victim and shot him; and this was not negated by the fact that the defendant
and the victim were friends and there was no animosity towards each other
on the night of the incident).

10   McBride’s Brief at 13.

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       Appellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict
       is against the weight of the evidence. Because the trial judge has
       had the opportunity to hear and see the evidence presented, an
       appellate court will give the gravest consideration to the findings
       and reasons advanced by the trial judge when reviewing a trial
       court’s determination that the verdict is against the weight of the
       evidence. One of the least assailable reasons for granting or
       denying a new trial is the lower court’s conviction that the verdict
       was or was not against the weight of the evidence and that a new
       trial should be granted in the interest of justice.

       However, the exercise of discretion by the trial court in granting
       or denying a motion for a new trial based on a challenge to the
       weight of the evidence is not unfettered. The propriety of the
       exercise of discretion in such an instance may be assessed by the
       appellate process when it is apparent that there was an abuse of
       that discretion.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted).

       Here, McBride’s weight claim has been waived because he failed to raise

this issue prior to sentencing or in a timely post-sentence motion. See

Pa.R.Crim.P. 607(A) (“A claim that the verdict was against the weight of the

evidence shall be raised with the trial judge in a motion for a new trial: (1)

orally, on the record, at any time before sentencing; (2) by written motion at

any time before sentencing; or (3) in a post-sentence motion.”) (emphasis

added).11 See also Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa.

Super. 2003) (providing that a weight of the evidence claim “must be

presented to the trial court while it exercises jurisdiction over a matter since

____________________________________________


11 It merits mention that in his brief, McBride did not point to where in the
record he preserved the claim.

                                          - 12 -
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[a]ppellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict is against

the weight of the evidence.”) (citations and quotation marks omitted).

Therefore, this claim is waived.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18




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