J-S45028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN CANE KIEFER

                            Appellant                No. 2925 EDA 2016


           Appeal from the Judgment of Sentence December 4, 2014
               In the Court of Common Pleas of Wayne County
             Criminal Division at No(s): CP-64-CR-0000199-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 11, 2017

        After a night of drinking, fighting, and crashing a car, Appellant,

Benjamin Kiefer, shot his brother, Kenneth, five times, resulting in Kenneth’s

death. At trial, Kiefer conceded that he had shot Kenneth to death, but

argued that he did so in self-defense. The jury convicted him of third-degree

murder.

        In this nunc pro tunc appeal,1 Kiefer’s court-appointed counsel, Steven

E. Burlein, Esquire, seeks permission to withdraw as counsel. As such, he

has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Kiefer’s direct appeal rights were restored nunc pro tunc pursuant to a Post
Conviction Relief Act proceeding.
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and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful

review, we affirm the judgment of sentence and grant Attorney Burlein

permission to withdraw.

      Attorney Burlein has complied with the mandated procedure for

withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating

Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594

(Pa. Super. 2010) (providing that counsel must inform client by letter of

rights to proceed once counsel moves to withdraw and append a copy of the

letter to the petition). Kiefer has not filed a response to counsel’s petition to

withdraw.

      Counsel has identified three issues that Kiefer believes entitle him to

relief. First, Kiefer contends the trial court erred in discussing the shooting

death of a state trooper before charging the jury. Kiefer believes this

reference unfairly prejudiced him.

      As counsel notes, there is no record of this statement in the transcripts

in the certified record. We do observe that the transcripts elide portions of

the opening statements by counsel and instructions from the trial court

through a mere notation of the time elapsed. However, even assuming that

Kiefer’s assertion is accurate, we can discern no reason to believe Kiefer was

unduly prejudiced.

      There is no indication of an altercation with state police, or that police

animus played any role in this crime. Rather, the record clearly establishes


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that   Kiefer   and   his   larger   brother    engaged in   physical altercations

throughout the night. After returning to Kiefer’s home, their dispute

continued, ultimately resulting in Kiefer shooting his brother five times. The

only issues at trial concerned Kiefer’s state of mind when he killed his

brother.

       Under these circumstances, we conclude that any statement made by

the trial court to the jury regarding the shooting death of a state trooper was

harmless. We agree with counsel’s assessment that this issue is wholly

meritless.

       Next, Kiefer wishes to challenge the sufficiency of the evidence

presented at trial. He claims the Commonwealth presented insufficient

evidence to support a finding that he killed his brother with malice.

       Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the

crimes     charged    is    established   beyond    a   reasonable   doubt.   See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)

(citation omitted).


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      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Id. (citation omitted). Any

doubt raised as to the accused’s guilt is to be resolved by the fact-finder.

See id. “As an appellate court, we do not assess credibility nor do we assign

weight to any of the testimony of record.” Commonwealth v. Kinney, 863

A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not

disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted).

      Murder in the third degree is an unlawful killing with malice, but

without the specific intent to kill. See 18 Pa.C.S.A. § 2502(c). See also

Commonwealth        v.   Santos,   876    A.2d   360,   363–364    (Pa.   2005);

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).

      Kiefer believes the evidence at trial was insufficient to establish that he

acted with malice. Malice is defined as

         a “wickedness of disposition, hardness of heart, cruelty,
         recklessness of consequences, and a mind regardless of
         social duty, although a particular person may not be
         intended to be injured....[”] [M]alice may be found where
         the defendant consciously disregarded an unjustified and
         extremely high risk that his actions might cause serious
         bodily injury.

Id. (quoting Commonwealth v. Cottam, 616 A.2d 988, 1004 (Pa. Super.

1992)) (brackets in original). Malice may be established by intentionally

shooting a victim in a vital part of his body. See Commonwealth v. Payne,


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868 A.2d 1257, 1261 (Pa. Super. 2005). Additionally, the finder of fact may

infer   malice   by   considering   the    totality   of   the   circumstances.   See

Commonwealth v. Thomas, 656 A.2d 514, 516 (Pa. Super. 1995).

        At trial, the Commonwealth presented the testimony of Keifer’s and

Kenneth’s brother, Kevin. Kevin testified that after Kiefer drove his car into a

ditch, the brothers decamped and walked to Kiefer’s home. See N.T., Jury

Trial, 9/15/14, at 10. On the walk home, Kiefer repeatedly threatened to kill

Kenneth. See id.

        Kiefer walked into the house first. See id., at 11. Kenneth paused

before entering, and told Kevin that he was worried and did not want to go

into the house. See id. He asked Kevin to call the police “if anything

happened[.]” Id. Kenneth and Kevin walked into the home approximately

five to ten minutes after Kiefer did. See id.

        Kenneth and Kiefer began arguing again almost immediately. See id.

Kiefer repeatedly requested that Kenneth let him punch Kenneth in the face,

because “he was mad that he didn’t win the fight, and [Kenneth] said no.”

Id.

        Eventually, the argument ended. Kenneth walked to the living room,

while Kiefer went to his bedroom. See id. Kevin then saw Kiefer walk into

the living room, holding a gun behind his back. See id., at 12. As Kiefer

approached Kenneth, Kenneth stood up and put his hands in the air. See

id., at 13.


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      Kiefer shot Kenneth five times. See id., at 14. After the first or second

shot, Kenneth fell to the ground, screaming. See id. Kiefer then told Kevin

that he had to tell the police that it had been self-defense. See id., at 15.

      This testimony is more than sufficient to support a finding that Kiefer

acted with malice. Assuming that Kiefer desires to argue that the

Commonwealth did not disprove self-defense, we further conclude that this

testimony, if believed, is sufficient to do so. As a result, we agree with

counsel’s assessment that this issue is wholly meritless.

      Finally, Kiefer wishes to argue that the trial court abused its discretion

by   imposing   a   manifestly    excessive   sentence.   “A   challenge   to   the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

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     Here, Kiefer preserved his issue through a timely motion for

reconsideration of the sentence imposed, and filed a timely appeal. Counsel

has included the required Rule 2119(f) statement. We therefore review the

Rule 2119(f) statement to determine if Kiefer has raised a substantial

question.

     We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for

which the appeal is sought, in contrast to the facts underlying the appeal,

which are necessary only to decide the appeal on the merits.” Id. (citation

omitted); see also Pa.R.A.P. 2119(f).

     Kiefer “must show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.” McAfee,

849 A.2d at 274 (citation omitted). That is, “the sentence violates either a

specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental norm underlying the sentencing process.”

Tirado, 870 A.2d at 365.

     Kiefer’s Rule 2119(f) statement claims that the trial court imposed a

manifestly excessive sentence. A generic claim that a sentence is excessive

does not raise a substantial question for our review.           See, e.g.,

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013). Even if we

review Kiefer’s post-sentence motion to determine if any other arguments


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against the discretionary aspects of his sentence were preserved, we find

that it merely contains a boilerplate allegation of excessiveness. Thus, Kiefer

has failed to raise a substantial question regarding his sentence. We agree

with counsel that this issue is wholly meritless.

      Having concluded that all of the issues identified by counsel are wholly

meritless, and after an independent review of the record, we agree that

Kiefer’s judgment of sentence should be affirmed, and that counsel be

granted permission to withdraw.

      Judgment of sentence affirmed. Permission to withdraw as counsel

granted. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017




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