J-S47003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TYRONE GERMANY                           :
                                          :
                    Appellant             :   No. 1035 WDA 2017

           Appeal from the Judgment of Sentence March 13, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0002955-2016


BEFORE:    OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 20, 2018

      Appellant, Tyrone Germany, appeals from the judgment of sentence

entered on March 13, 2017 in the Criminal Division of the Court of Common

Pleas of Allegheny County. We affirm.

      The trial court summarized the factual background in this case and we

need not fully restate the facts here. Briefly, on January 19, 2016, Appellant

fatally shot the victim, Shawn Cavender, during a drug deal.       The record

establishes that, at the time of the shooting, the two men had separated

following a short confrontation.   At the conclusion of a non-jury trial on

December 19, 2016, the court found Appellant guilty of third-degree murder,

18 Pa.C.S.A. § 2502(c), and persons not to possess a firearm, 18 Pa.C.S.A.

§ 6105(a)(1). On March 13, 2017, the trial court sentenced Appellant to serve

not less than 20 and not more than 40 years’ incarceration for his third-degree



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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murder conviction.    Appellant received no further penalty for his firearms

conviction.

      Appellant filed a timely post-sentence motion on March 20, 2017.

Among other things, Appellant’s post-sentence motion challenged the

discretionary aspects of his sentence.       The trial court denied Appellant’s

post-sentence motion on July 13, 2017.

      Appellant filed a notice of appeal on July 17, 2017. After an extension,

Appellant filed a court-ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued its Rule 1925(a)

opinion on January 3, 2018.

      Appellant raises the following claims in his brief:

      Did the trial court err in finding [Appellant] guilty of criminal
      homicide in the third[-]degree when the Commonwealth
      presented no evidence demonstrating actual malice?

      Did the trial court err in finding that the Commonwealth had
      overcome [Appellant’s] self-defense claim when the evidence
      presented suggests both parties were engaged in mutual combat?

      Did the trial court err in sentencing [Appellant] without
      consideration for his specific circumstances?

Appellant’s Brief at 3 (certain capitalization omitted).

      Appellant’s   first   two   claims   challenge   the   sufficiency   of   the

Commonwealth’s evidence. Our standard and scope of review of such claims

is well settled.

      Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary. Commonwealth v. Walls, 144 A.3d 926,

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       931 (Pa. Super. 2016) (citation omitted). In assessing Appellant's
       sufficiency challenge, we must determine whether, viewing the
       evidence in the light most favorable to the Commonwealth as
       verdict winner, together with all reasonable inferences therefrom,
       the trier of fact could have found that the Commonwealth proved
       [each] element of the crime beyond a reasonable doubt.
       Commonwealth v. Ansell, 143 A.3d 944, 949 (Pa. Super. 2016)
       (citation omitted).      The evidence need not preclude every
       possibility of innocence and the fact-finder is free to believe all,
       part, or none of the evidence presented. Commonwealth v.
       Ford, 141 A.3d 547, 552 (Pa. Super. 2016) (citation omitted).

Commonwealth v. Giron, 166 A.3d 635, 638 (Pa. Super. 2017) (internal

quotation marks omitted).

       In his first issue, Appellant argues that “no evidence was presented to

show that [Appellant acted] with malice[.]” Appellant’s Brief at 9. Specifically,

Appellant claims that the evidence introduced at trial showed only that he

engaged in mutual combat with the victim, that he did not target the victim’s

vital organs, and that he fled the scene while the victim remained alive. See

id. at 14.       Under these circumstances, Appellant contends that the

Commonwealth failed to prove malice beyond a reasonable doubt.1               We

disagree.

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1  Before addressing the substance of Appellant’s opening claim, the
Commonwealth asserts that Appellant waived appellate review of this
contention. The Commonwealth bases its contention on the reference in
Appellant’s concise statement to the insufficiency of evidence showing “intent
to kill” rather than the insufficiency of evidence establishing “actual malice.”
Although this Court has held that a concise statement “must state with
specificity the element or elements upon which … the evidence was
insufficient,” see Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
2009), appeal denied, 3 A.3d 670 (Pa. 2010), we are not persuaded that this



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       Pennsylvania law defines third-degree murder, and the critical element

of malice, as follows:

         Third-degree murder is defined [as] all other kinds of murder
         other than first[-]degree murder or second[-]degree murder.
         The elements of third-degree murder, as developed by case
         law, are a killing done with legal malice.

         Malice exists where there is a particular ill-will, and also
         where there is a wickedness of disposition, hardness of heart,
         wanton conduct, cruelty, recklessness of consequences and
         a mind regardless of social duty.

       Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa. Super.
       2009) (en banc) (quotations and quotation marks omitted).
       “Malice is established where an actor consciously disregard[s] an
       unjustified and extremely high risk that his actions might cause
       death or serious bodily harm.” Commonwealth v. Devine, 26
       A.3d 1139, 1146 (Pa. Super. 2011) (quotation and quotation
       marks omitted). “Malice may be inferred by considering the
       totality of the circumstances.” Commonwealth v. Dunphy, 20
       A.3d 1215, 1219 (Pa. Super. 2011) (citation omitted).

Commonwealth v. Golphin, 161 A.3d 1009, 1018 (Pa. Super. 2018), appeal

denied, 170 A.3d 1051 (Pa. 2017).

       Contrary to Appellant’s claims, the evidence adduced at trial was

sufficient to demonstrate actual malice beyond a reasonable doubt. The trial

court specifically found that, after an initial confrontation, Appellant and the

victim separated, at which time Appellant pointed a loaded gun at the victim



____________________________________________


rule compels waiver under the present circumstances. Appellant’s concise
statement presented an obvious challenge to the mens rea element of his
homicide conviction and his misstatement did not pose a challenge to the trial
court’s analysis in its Rule 1925(a) opinion. We, too, are not hampered by
Appellant’s oversight and, for this reason, we decline to find waiver.

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and shot him multiple times.       See Trial Court Opinion, 1/3/18, at 13-14.

Appellant clearly disregarded an extremely high risk of death or serious bodily

harm and his conduct evinced a reckless disregard for human life. Hence, no

relief is due on Appellant’s first claim.

      Appellant’s second issue asserts that the Commonwealth failed to

overcome a claim of self-defense since the evidence showed only that

Appellant responded reasonably to threats posed by the victim and that

Appellant retreated promptly when those threats subsided. Again, Appellant

is not entitled to relief.

      If a defendant introduces evidence of self-defense, the
      Commonwealth bears the burden of disproving the self-defense
      claim beyond a reasonable doubt. Commonwealth v. Rivera,
      983 A.2d 1211, 1221 (Pa. 2009). “Although the Commonwealth
      is required to disprove a claim of self-defense ... [the factfinder]
      is not required to believe the testimony of the defendant who
      raises the claim.” Commonwealth v. Carbone, 574 A.2d 584,
      589 (Pa. 1990).

Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011) (parallel

citations omitted), cert. denied, 566 U.S. 1247 (2012). The Commonwealth

meets its burden of disproving self-defense where it establishes any of the

following: a) the defendant did not reasonably believe that it was necessary

to kill to protect himself from imminent death or great bodily harm; b) the

defendant was not free from fault in provoking or continuing the difficulty

which resulted in the slaying; or, c) the defendant violated a duty to retreat

or avoid the danger. Commonwealth v. Rivera, 108 A.3d 779, 791 (Pa.

2014).

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      We agree with the trial court that Appellant did not honestly believe that

it was necessary to kill to avoid imminent death or great bodily harm. See

Trial Court Opinion, 1/3/18, at 16. Again, the record shows that Appellant

produced a firearm while he and the victim were separated and that Appellant

shot the victim during the separation and while the victim was located in an

adjoining room. See id. In addition, photographic evidence and testimony

from an investigating officer showed, contrary to Appellant’s statements, that

there was little proof of a serious struggle in the room where the victim was

located when he initially was shot.     See id. at 17.    Thus, the totality of

circumstances clearly warranted rejection of Appellant’s self-defense claim.

      Appellant’s final contention is that the trial court imposed manifestly

unreasonable sentence without meaningful consideration of the statutory

factors set forth at 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(d). See

Appellant’s Brief at 11.    Specifically, Appellant contends the trial court

overlooked several factors that demonstrated his amenability to rehabilitation,

including his age and the absence of prior incarceration. See id. at 17.

      Initially, we note that Appellant's claim challenges the discretionary

aspects of sentencing. As required by Pa.R.A.P. 2119(f), Appellant has

included a separate statement of reasons for our review of the discretionary

aspects of his sentence in his appellate brief. Nevertheless, this Court may

only reach the merits of a discretionary sentencing challenge if it also appears

that a substantial question exists as to whether the sentence imposed is


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appropriate under the Sentencing Code. Commonwealth v. Ventura, 975

A.2d 1128, 1133 (Pa. Super. 2008). A substantial question exists “where the

defendant advances a colorable argument that the sentence imposed is either

inconsistent with a specific provision of the [Sentencing] Code or is contrary

to the fundamental norms underlying the sentencing process.” Id.

      As stated above, Appellant’s claim in this appeal is that the trial court

overlooked factors that establish his amenability to rehabilitation such as his

age and lack of prior sentences involving incarceration. Essentially, this claim

asserts that the trial court failed to take account of Appellant’s unique

circumstances.     See Appellant’s Brief at 18 (“trial court erred in its

determination of [Appellant’s] sentence by failing to take into account his

specific circumstances”). In prior cases, this Court has held that a trial court’s

failure to consider certain mitigating factors does not raise a substantial

question. See Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.

2010); see also Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super.

2007 (“[T]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”).     Since Appellant has not raised a substantial

question for our review, he is not entitled to relief on his discretionary

sentencing challenge.

      Even if we were to reach the merits of Appellant’s discretionary

sentencing challenge, we would conclude that he is not entitled to relief.


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      It is well settled that:

      [S]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias or
      ill will. It is more than just an error in judgment.

Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009) (quotation

omitted).

      In the case sub judice, the trial court had the benefit of a pre-sentence

report (N.T. Sentencing, 3/13/17, at 17-21) and we are persuaded, based

upon a review of Appellant’s sentencing transcript, that the court considered

all of the information contained therein. Hence, Appellant’s claim that the trial

court gave inadequate consideration to his age and lack of prior incarceration

is belied by the record. Moreover, “[o]ur Supreme Court has determined that

where the trial court is informed by a pre-sentence report, it is presumed that

the court is aware of all appropriate sentencing factors and considerations,

and that where the court has been so informed, its discretion should not be

disturbed.” Ventura, 975 A.2d at 1135 (citation omitted) (sentence of 20 to

40 years’ incarceration for third degree murder did not constitute abuse of

discretion). As Appellant has failed to establish an abuse of discretion, no

relief is due.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2018




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