J-A30011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
            v.                           :
                                         :
                                         :
DAVID ALLEN UMSTEAD                      :
                                         :
                  Appellant              :    No. 17 WDA 2016

        Appeal from the Judgment of Sentence November 24, 2015
  In the Court of Common Pleas of Allegheny County Criminal Division at
                    No(s): CP-02-CR-0015441-2014,
                         CP-02-CR-0015443-2014


BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED MARCH 16, 2018

     David Allen Umstead appeals from the judgment of sentence of

twenty-one years and four-months to forty-two years and eight months

imposed after he was convicted of third-degree murder and pled guilty to

escape. We affirm.

     The trial court set forth the following facts:

            On August 26, 2014, [Appellant] escaped from a halfway
     house where he was residing as part of a sentence on a third
     DUI offense[,] and committed a murder within two (2) days of
     being on the run. The murder took place during the early
     morning hours of August 29, 2014. [Appellant] met the 58 year
     old victim, Delrio Ivy, at a local bar named JR’s Bar on East Ohio
     Street, which is located on the North Side of the City of
     Pittsburgh. [Appellant] and Mr. Ivy were observed drinking and
     playing pool together at the bar for some time during the
     evening on August 28, 2014 and [the] early morning hours of
     August 29, 2014. Surveillance footage showed that the two (2)
     men left the bar together sometime after midnight on August 29,
     2014.
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             The two (2) men apparently walked from East Ohio Street
      several blocks to a Giant Eagle Store located on Pressley Street,
      near Cedar Avenue, where they were captured on Giant Eagle’s
      surveillance camera around 12:38:50 am. Eleven (11) seconds
      later, surveillance footage from the store showed the two (2)
      men on the ground. Thirteen seconds after they were on the
      ground, [Appellant] is seen standing up while the victim
      remained on the ground. The attack lasted approximately 24
      seconds. As a whole, the footage showed that Mr. Ivy was
      running away from [Appellant], and that [Appellant] chased after
      him, tackled him to the ground, got on top of him, and stabbed
      him repeatedly.

            ....

           Mr. Ivy suffered a total of six (6) stab wounds, which were
      mostly to his neck and upper chest. One of the stab wounds was
      “massive” and pierced his heart. The physical evidence also
      showed that Mr. Ivy had defensive wounds on his hands.

Trial Court Opinion, 2/8/17, at 4-5 (internal citations omitted).

      Shortly after the incident, Mr. Ivy perished from his injuries. Appellant

fled to Wyoming, where he was apprehended by police one month later.

Based on the foregoing, Appellant was charged at separate docket numbers

with criminal homicide and escape.      Following a jury trial, Appellant was

convicted of third-degree murder. A joint sentencing and plea hearing was

held on November 24, 2015.         At that hearing, Appellant pled guilty to

escape.   The court then imposed a sentence of twenty to forty years

imprisonment for third-degree murder, and a consecutive sentence of

sixteen to thirty-two months incarceration for escape, resulting in an

aggregate term of twenty-one years and four months to forty-two years and

eight months imprisonment.



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      Appellant filed a post-sentence motion, which the trial court denied on

December 1, 2015.         He then filed a timely notice of appeal and complied

with the trial court’s directive to file a Rule 1925(b) concise statement of

errors complained of on appeal. The trial court authored its Rule 1925(a)

opinion, and this matter is now ready for our consideration.

      Appellant raises two questions for our review:

      1. Was the evidence presented at Appellant’s trial insufficient to
         establish, beyond a reasonable doubt, that he had not killed
         Delrio Ivy in an act of self-defense?

      2. Was the evidence presented at Appellant’s trial insufficient to
         establish, beyond a reasonable doubt, that he had not killed
         Delrio Ivy while in heat of passion?

Appellant’s brief at 3.

      Appellant’s   issues     challenge   the   sufficiency   of   the   evidence

underpinning his conviction for third-degree murder. Whether the evidence

was sufficient to support Appellant’s conviction presents a matter of law.

Thus, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016) (citation

omitted). The following principles are well-established:

      There is sufficient evidence to sustain a conviction when the
      evidence admitted at trial, and all reasonable inferences drawn
      therefrom, viewed in the light most favorable to the
      Commonwealth as verdict-winner, are sufficient to enable the
      fact-finder to conclude that the Commonwealth established all of
      the elements of the offense beyond a reasonable doubt. The
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Further, we note that the entire trial
      record is evaluated and all evidence received against the


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      defendant is considered, being cognizant that the trier of fact is
      free to believe all, part, or none of the evidence.

Commonwealth v. Diaz, 152 A.3d 1040, 1043-44 (Pa.Super. 2016)

(internal quotation omitted, citation omitted).

      In order to convict an individual of third-degree murder, the

Commonwealth must prove that the killing was committed with malice.

Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017).                   Malice

“comprehends not only a particular ill-will, but every case where there is

wickedness of disposition, hardness of heart, cruelty, recklessness of

consequences, and a mind regardless of social duty[.]”           Id. (citation

omitted).   We have long held that “malice may be inferred through

circumstantial evidence, such as the use of a deadly weapon on a vital part

of the victim’s body.” Commonwealth v. Hicks, 156 A.3d 1114, 1124 (Pa.

2017) (citation omitted).

      In his first issue, Appellant argues that the Commonwealth failed to

disprove his claim of self-defense.   When the defendant raises a claim of

self-defense, “the burden is on the Commonwealth to prove beyond a

reasonable doubt that the defendant’s act was not justifiable self-defense.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa.Super. 2014) (citation

omitted). The justified use of deadly force requires that: “a) the actor was

free from fault in provoking or continuing the difficulty which resulted in the

use of deadly force; b) the actor must have reasonably believed that he was

in imminent danger of death or serious bodily injury, and that there was a

necessity to use such force in order to save himself or others therefrom; and

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c) the actor did not violate any duty to retreat or to avoid danger.”            Id.

(citing Commonwealth v. Harris, 665 A.2d 1172, 1174 (Pa. 1995).

      At trial, Appellant argued that he attacked Mr. Ivy only after Mr. Ivy

attacked him with a knife. Appellant contends that the Commonwealth failed

to offer any evidence to rebut his claim of self-defense. He maintains that

the fact-finder’s mere rejection of his claim was not sufficient to overcome

the Commonwealth’s affirmative duty to offer evidence to the contrary. He

notes that the Commonwealth did not proffer eyewitness testimony or any

other evidence to rebut his version of the event, and the video recording of

the encounter does not provide an up-close vantage point or any audio. As

such, Appellant asserts that there was no indication of the circumstances

surrounding his brawl with Mr. Ivy, such as what was said between the

parties, who provoked the encounter, and whether Appellant believed that

he was in danger of serious bodily injury.

      Appellant concedes that the video shows him following Mr. Ivy, but

contends that the conclusion that he had decided to “hunt [Mr. Ivy] down” is

mere speculation.   Appellant’s brief at 23.         Appellant then offers various

interpretations as to what the recording depicts in an apparent effort to

establish that his conviction was not proven beyond a reasonable doubt.

Essentially, Appellant argues that the lack of detail in the video recording

rendered the jury’s findings merely conjecture. We disagree.

      At the outset, we note “the facts and circumstances established by the

Commonwealth      need   not   preclude      every     possibility   of   innocence.”

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Commonwealth v. Knox, 165 A.3d 925, 927 (Pa.Super. 2017) (citation

omitted). It is the jury’s province to resolve doubts raised by the defendant,

and thus, we do not assess credibility or reweigh the evidence of record. Id.

Here, the jury clearly did not credit Appellant’s alternative theories as to the

circumstances surrounding Mr. Ivy’s death.       Instantly, we find that, when

reviewing the record in the light most favorable to the Commonwealth as the

verdict   winner,   the   Commonwealth     provided   ample   proof   beyond   a

reasonable doubt that Appellant was not acting in self-defense when he

murdered Mr. Ivy.

      We have reviewed the video recording of the night in question and

observe the following.      The recording displayed Appellant and Mr. Ivy

traveling together on a sidewalk. Appellant and Mr. Ivy then engaged in a

brief scuffle. Mr. Ivy attempted to escape the fray by fleeing into the street.

Appellant chased Mr. Ivy, following closely behind.       As they entered the

middle of the street, Appellant tackled Mr. Ivy from the rear. After the two

fell onto the pavement, Appellant straddled Mr. Ivy, who was lying on his

back. A further scuffle ensued, after which Appellant is seen abruptly rising

and fleeing off-screen. Mr. Ivy can then be seen slowly rising and walking to

the side of the road while bleeding profusely.

      The Commonwealth established that, during this attack, Appellant

stabbed Mr. Ivy six times to the neck, upper chest, and left arm, including

lethal wounds to the neck and heart.        Mr. Ivy also sustained numerous

injuries on his right arm and hands, which the Commonwealth’s expert in

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J-A30011-17



forensic pathology, Dr. Todd Luckasevic, opined were “defensive type incise

wounds.”      N.T. Trial, 8/25/15, at 75.   Although a utility knife bearing Mr.

Ivy’s DNA was discovered at the scene of the crime, that knife was found

thirty-five feet from the middle of the street where Mr. Ivy was assaulted.

Id. at 126.

      Based on this evidence, and our review of the video recording, we find

that the jury could have reasonably inferred that Appellant instigated the

assault on Mr. Ivy. In addition, Appellant continued his attack despite Mr.

Ivy’s clear attempt to escape from him.            Indeed, Appellant had the

opportunity and ability to safely retreat and avoid any further confrontation.

Instead, he continued after Mr. Ivy, tackled him to the ground, and stabbed

him six times.     Hence, we find that the Commonwealth adduced sufficient

evidence to overcome Appellant’s claim that he acted in self-defense, and no

relief is due. Harris, supra.

      Appellant next argues that the Commonwealth failed to prove that he

was not acting under a sudden and intense passion at the time he killed Mr.

Ivy, which constitutes voluntary manslaughter instead of third-degree

murder. Under the Crimes Code, “[a] person who kills an individual without

lawful justification commits voluntary manslaughter if at the time of the

killing he is acting under a sudden and intense passion resulting from serious

provocation by . . . the individual killed[.]” 18 Pa.C.S. § 2503(a). We have

previously stated, “[v]oluntary manslaughter is the appropriate verdict when

the killing is in the ‘heat of passion’ as a result of provocation by the victim.”

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Commonwealth v. Truong, 36 A.3d 592, 600 (Pa.Super. 2012) (citation

omitted).    Further, “[t]he test for [serious] provocation is whether a

reasonable person confronted by the same series of events, would become

impassioned to the extent that his mind would be incapable of cool

reflection.” Id. (citation omitted).

      Appellant contends that the Commonwealth failed to establish that he

was not “moved to the point of rage when he stabbed [Mr.] Ivy,” or that he

did not have “an opportunity to calm down” after the victim “had stabbed

him.” Appellant’s brief at 36. He maintains that Mr. Ivy’s attack upon him

“constitutes objectively reasonable provocation,” and given the short time-

frame in which the events occurred, his eventual killing of Mr. Ivy represents

“both an act of rage and the absence of cooling-off time.” Appellant’s brief

at 36-37. We disagree.

      Upon review of the record in the light most favorable to the

Commonwealth as the verdict winner, we find that the Commonwealth

supplied sufficient evidence to prove beyond a reasonable doubt that

Appellant did not kill Mr. Ivy after being provoked by the victim. In addition,

we note that, contrary to Appellant’s protestations, the Commonwealth was

not required to prove beyond a reasonable doubt that Appellant was not

acting under a sudden and intense passion at the time of the crime. Herein,

although Appellant alleged that he sustained an injury to his right arm after

being attacked by Mr. Ivy, the jury clearly did not credit this evidence.

Significantly, from our review of the video recording of the incident, the jury

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J-A30011-17



could have reasonably inferred that Appellant provoked, and continued, the

fight that led to Mr. Ivy’s death, as opposed to Appellant’s assertion that Mr.

Ivy started the brawl.    Thus, we find that the Commonwealth proffered

sufficient evidence that Appellant was not acting in the heat of passion that

resulted from serious provocation by Mr. Ivy. 18 Pa.C.S. § 2503(a).         As

such, this claim fails.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2018




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