J-S69005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TROY C. VINCENT

                            Appellant                  No. 1926 EDA 2013


             Appeal from the Judgment of Sentence May 29, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011466-2011


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

MEMORANDUM BY GANTMAN, P.J.:                      FILED DECEMBER 23, 2014

        Appellant, Troy C. Vincent, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions for murder of the third degree, firearms not to be

carried without a license, carrying firearms on public streets or public

property in Philadelphia, and possessing instruments of crime.1 We affirm.

        The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we have no reason to restate them.

        Appellant raises the following issues for our review:

           WHETHER…APPELLANT’S CONVICTION FOR MURDER WAS
           AGAINST THE WEIGHT OF THE EVIDENCE AND SHOCKING
           TO ONE’S SENSE OF JUSTICE WHERE THERE WAS A LACK
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 6108, and 907(a), respectively.
J-S69005-14


         OF CREDIBLE EVIDENCE THAT…APPELLANT POSSESSED
         THE MALICE FOR THIRD DEGREE MURDER, WHERE THE
         VICTIM WAS THE AGGRESSOR HAVING PRECIPITATED
         THE VIOLENCE, WHERE IT WAS UNCLEAR WHO BROUGHT
         THE   GUN   TO  THE    SCENE  AND   WHERE  THE
         COMMONWEALTH DID NOT BEAR ITS BURDEN OF
         DISPROVING THAT…APPELLANT ACTED UNDER A SUDDEN
         AND INTENSE PASSION CREATED BY THE SERIOUS
         PROVOCATION OF THE VICTIM.

         WHETHER THE ADJUDICATION OF GUILT IS BASED UPON
         INSUFFICIENT  EVIDENCE  BECAUSE    IT  WAS   AN
         UNREASONABLE INFERENCE TO CONCLUDE BEYOND A
         REASONABLE DOUBT THAT…APPELLANT POSSESSED THE
         MALICE FOR MURDER WHERE HE WAS SUDDENLY
         ATTACKED BY THE VICTIM WITHOUT ANY PROVOCATION
         OR REASON AND WHERE IT IS UNCLEAR WHO BROUGHT
         THE GUN TO THE SCENE.

(Appellant’s Brief at 6).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Rose Marie

DeFino-Nastasi, we conclude Appellant’s issues merit no relief.    The trial

court opinion comprehensively discusses and properly disposes of the

questions presented. (See Trial Court Opinion, filed January 23, 2014, at 5-

8) (finding: (1) surveillance video from crime scene depicted Appellant

standing outside bar entrance when victim appeared and swung his arms at

Appellant; video showed Appellant holding gun and flash going past victim’s

leg; eyewitness testimony established victim did not have gun before he left

bar to confront Appellant, and Appellant shot victim with handgun; victim

died from three bullet wounds to his chest and abdomen; seven shell casings

recovered from crime scene were all fired from same gun; Commonwealth

                                   -2-
J-S69005-14


presented sufficient evidence to establish that Appellant possessed malice

required for murder; (2) in light of significant evidence establishing

Appellant’s malice, verdict did not shock one’s sense of justice; verdict was

not against weight of evidence). Accordingly, we affirm on the basis of the

trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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                   IN THE COURT OF COMMON PLEAS OF PHIALDELPHIA
                              CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA:

V.

TROY C. VINCENT

                                              OPINION
                                                                                                JAN
DeFino-Nastasi, J.

                                    PROCEDURAL HISTORY

           On December 18, 2012, the Defendant was fOWld guilty following a bench trial presided

over by the Honorable Rose Marie DeFino-Nastasi of: Third Degree Murderl, as a felony of the

first degree, Firearms Not to be Carried without a License (Vufa 6106i, as a felony of the third

degree, Carrying Firearms on Public street or Public Property in Philadelphia (Vufa 6108)3, as a

misdemeanor of the first degree, and Possession of an Instrument of Crime (PIC)4, as a

misdemeanor of the first degree.


          On May 29, 2013, the Defendant was sentenced to eighteen (18) to thirty-six (36) years'

incarceration for the Third Degree Murder conviction; three and a half (3 \12) to seven (7) years

for the Vufa 6106 conviction, and two and a half (2 \12) to five (5) years for both the Vufa 6108

conviction and the PIC conviction. All sentences were ordered to run concurrently.


          On July 3, 2013, the Defendant filed a Notice of Appeal to the Superior Court.


          On November 4, 2013, the Defendant filed a 1925(b) statement claiming that: (I) The

Defendant's conviction for Murder of the third degree is against the weight of evidence and
                                                        CP-51-CR-0011466-2011 Comm. v. Vincent, Troy C.
                                                                           Opinion

I   18 Pa.C.S.A. § 2502
2   18 Pa.C.S.A. § 6106
3   18 Pa.C.S.A § 6108                                       11111111111" I1II11I1II1I
4   18 Pa.C.S.A, § 907                                                7108118451
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shocking to one's sense of justice where there is a lack of evidence to show that the Defendant

possessed the malice for third degree murder; and (2) the Defendant's guilt is based upon

insufficient evidence because it is an unreasonable inference to conclude beyond a reasonable

doubt that Defendant possessed malice for Murder when he was attacked by the victim without

any provocation and where it is unclear who brought the gun to the scene.


                                              FACTS

       Valarie Steadman testified that she was married to Lamont Watts (hereinafter "the

decedent"). She had talked to him on March 29,2009 at approximately 6:30 p.m. that evening,

and later identified his body at the Office of Medical Examiners. (Notes of Testimony, Trial,

December 18,2013, pp. 27-28).


       Police Officer John Donaghy testified that he was on patrol on March 29, 2009 when, at

approximately 9:45, he was called to Pro Lounge Bar at 6332 Germantown Avenue. (N.T., id.,

pp. 30). When he arrived at the scene he observed a black male wearing a white T-shirt lying

face up on the sidewalk in front of the bar. (N.T., id., pp. 30). The decedent was unresponsive but

breathing when Officer Donaghy checked his vitals. (N.T., id., pp. 31).


       Dr. Sam Gulino testified as an expert in the field offorensic pathology. Dr. Gulino

examined the body of the decedent and found three gunshot wounds: one to the left upper chest,

one to the left lower chest, and one to the left side of the abdomen. (Notes of Testimony, Trial,

December 17,2013, pp. 27). Dr. Guilino opined that the cause of death was the result of multiple

gunshot wounds, and the manner of death was homicide. (N.T., id., pp. 33).


       Hakeem Plummer testified that he was at Pro Lounge Bar on March 29,2009 when the

decedent was shot. (N.T., id., pp. liS). Plummer knew the decedent, who was friends with his


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sister, and saw him at the bar that night. (N.T., id., pp. 116-7). Plummer testified that he was at

the bar, drinking "shots" of alcohol, with friends before the decedent came up to him and told

him that he was going to "knock [a] guy out." (N.T., id., pp. 117-19). The decedent asked

Plummer to get "his back" if someone tried to help the guy. (N.T., id., pp. 119). Plummer did not

see any weapons in the decedent's hands at that time. (N.T., id., pp. 119). Plummer walked

outside the bar with the decedent. (N.T., id., pp. 119). Plummer testified that as he walked

outside he saw the decedent throw a punch and almost instantly heard gunshots ring out. (N.T.,

id., pp. 120). At no time while he was outside did Plummer see the decedent with a gun. (N.T.,

id., pp. 120).


        Leslie McClean was working at Pro Lounge Bar on March 29, 2009. (Notes of

Testimony, Tria:l, December 18, 2013, pp.5). Around 9:30 p.m. that night, McClean was outside

smoking a cigarette when he heard gunshots. (N.T., id., pp. 6). McClean testified that he

provided a statement to the police after the incident. (N.T., id., pp. 8). McClean testified that he

signed each page at the bottom of his statement and after talking to the detectives at the police

station, he was given a chance to read over the statement and sign it, which he did. (N.T., id., pp.

10). McClean testified that he did not remember telling the police that he saw "one guy [shoot]

the other and they both fell to the ground," despite that being in his statement. (N.T., id., pp.II).

He also testified that he never told the detectives that he knew the male who shot the decedent

from around the neighborhood, but rather, McClean testified that the detectives asked him if he

knew anyone in the photographs and he merely pointed out someone he recognized. (N.T., id.,

pp. 12). McClean further testified that he never told the detectives that "[t]hat's the o.ne that shot

the victim," in response to the questions "[d]o you recognize anybody in these photos?" and

"[w]here do you recognize the male from?"(N.T., id., pp. 12).


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       Detective James Crone was assigned to investigate the death of the decedent. (N.T., id.,

pp. 51). As part of the investigation Detective Crone interviewed Leslie McClean. (N.T., id., pp.

51). Detective Crone testified McClean had signed each page of his statement at the bottom after

reviewing the statement in full. (N.T., id., pp. 54). Detective Crone read the statement aloud in

court, which provided in summation that McClean was outside the bar smoking a cigarette when

the shooting occurred; the incident occurred when two guys were scuffling and one guy shot the

other; McClean identified the Defendant from a photo lineup as the individual who shot the

decedent; and that the weapon used was a handgun. (N.T., id., pp. 59).


       Detective Donna Jaconi testified that on March 29,2009 at approximately 9:45 p.m., she

was assigned to investigate the death of the decedent as a crime scene officer. (Notes of

Testimony, Trial, December 17, 2013, pp. 82). Detective Jaconi recovered seven .32 caliber fired

cartridge casings ("FCC"). (N.T., id., pp. 84).


       It was stipulated that Officer DeFields, if called to testify, would testify as an expert in

the field of firearms identification, comparison, and examination, and would testify that he

examined the ballistics in the case and found to a reasonable degree of scientific certainty that

there were seven FCCs, and their caliber was .32 automatic. (N.T., id., pp. 20). Additionally,

Officer DeFields would testify that there were three .32 caliber full-metal jacket bullets

recovered from the decedent. The FCCs and the bullets were all fired from the same firearm.

(NT, id., pp. 20).


       Detective Thorsten Lucke testified as an expert in recovery of surveillance video and

forensic analysis of surveillance. (N.T., id., pp. 54). Detective Lucke prepared a compilation

video of the video surveillance of6332 Germantown Avenue at the Pro Lounge Bar. (N.T., id.,



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pp. 56). Detective Lucke testified that the video footage depicted the Defendant walking up to

the Pro Lounge Bar's entrance, looking inside the bar, and then standing off to the side of the bar

door's entrance. (N.T., id., pp. 60). From inside the bar, the video shows the decedent stand up

from the bar and walk outside. (N.T., id., pp. 60). The decedent walks to where the Defendant is

standing and swings at the Defendant. (N.T., id., pp. 65-67). The video depicts a gun in the

Defendant's hand shortly after being punched and in slow motion a flash is seen going past the

decedent's leg. (N.T., id., pp. 68-69).


                                             ANALYSES

        On appeal, the Defendant claims that the adjudication of guilt was based on insufficient

evidence. Specifically, the Defendant contends that it was unreasonable for the fact finder to

infer beyond a reasonable doubt that the Defendant possessed the malice for murder when he

was suddenly attacked by the victim without any provocation or reason and it was unclear who

brought the gun to the scene.


        Whether there was sufficient evidence to support a jury's findings to this effect, the court

is to consider whether the evidence, viewed in the light most favorable to the Commonwealth, is

sufficient to enable a reasonable jury to find every element of the crime beyond a reasonable

doubt. Com. v. Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1029 (2007). In applying this standard,

the court may not reweigh the evidence and substitute its jUdgment for that of the fact-finder. Id.

The Commonwealth may sustain its burden by means of wholly circumstantial evidence. The

trier offact, while passing upon the credibility of witnesses and the weight of the evidence, is

free to believe all, part, or none of the evidence. Id.




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           A criminal homicide constitutes murder of the third degree "when a person commits a

killing which is neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice." Com. v. Morris, 2008 PA Super 235, 958 A.2d 569, 576 (Pa.

Super. Ct. 2008). "Malice is not merely ill-will but, rather, wickedness of disposition, hardness

of heart, recklessness of consequences, and a mind regardless of social duty." Id. The elements

of the third-degree murder, as developed by case law, are a killing done with legal malice but

without the specific intent to kill required in first-degree murder. Com. v. Seibert, 424 Pa. Super.

242,248,622 A.2d 361,364 (1993). Malice may be inferred from the use ofa deadly weapon on

a vital part of the victim's body. Com. v. Gooding, 818 A.2d 546, 550 (Pa.Super.2003).


          The Commonwealth provided sufficient evidence to prove each element of third-degree

murder beyond a reasonable doubt. 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. The evidence at

trial, testimonial and video, established that the unarmed decedent confronted and punched the

Defendant outside Pro Lounge Bar. The Defendant immediately pulled out a handgun and shot

at the decedent seven times hitting him three times: twice in the chest and once in the stomach.


                   Firstly, this Court viewed the video and there is no doubt the Defendant possessed

the gun. Secondly, in order to find third degree Murder as opposed to voluntary manslaughter

this Court must be satisfied beyond a reasonable doubt that the Defendant was not acting under a

sudden and intense passion resulting from "serious" provocation by the victims. Serious

provocation is defined as an event or series of events that would excite an intense passion in a

reasonable person.


5   18 Pa.C.S,A, § 2503



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        "For purposes of the offense of voluntary manslaughter, 'passion' is anger and terror that

reach a degree of intensity sufficient to obscure temporarily the reason of the person affected; it

is any of the motions ofthe mind known as anger, rage, sudden resentment or terror, rendering

the mind incapable of cool reflection." Commonwealth v. Laich, 566 Pa. 19,21,777 A.2d

1057,1061 (2001). A reasonable person would not respond to a single punch by shooting at

someone seven times.


       Next, the Defendant claims that the adjudication of guilt for murder is against the weight

of the evidence and shocking to one's sense of justice. Specifically, the Defendant claims that

there was a lack of credible evidence that the defendant possessed the malice for third degree

murder, the victim was the aggressor having precipitated the violence, it was unclear who

brought the gun to the scene, and the Commonwealth did not disprove the Defendant's claim of

heat of passion.


       The weight of the evidence is 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. Commonwealth v.

Johnson, 542 Pa. 384, 394,668 A.2d 97, 101 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90,

136 L.Ed.2d 46 (1996). Such a claim requires a new trial only when the verdict is so contrary to

the evidence as to shock one's sense of justice. Com. v. Perez, 3304,08, 2009 WL 6561339 (Pa.

Com. PI. Nov. 18,2009) affd, 4 A.3d 687 (Pa. Super. Ct. 2010). An appellate court cannot

substitute its judgment for that of the finder of fact. rd. When the trial court has ruled on the

weight claim below, an appellate court's role is not to consider the underlying question of

whether the verdict is against the weight of the evidence. Rather, appellate review is limited to

whether the trial court palpably abused its discretion in ruling on the weight claim. Discretion is

abused when the course pursued represents not merely an error of judgment, but "where the

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judgment is manifestly unreasonable or where the law is not applied or where the record shows

that the action is the result of partiality, prejudice, bias, or ill will." Com. v. Forbes, 867 A.2d

1268, 1273 (Pa. Super. 2005).


       The Defendant's weight of the evidence claim fails since the verdict is not so contrary to

the evidence so as to shock one's sense of justice. For the reasons, established above with regard

to sufficiency of evidence, this Court finds that the verdict was not against the weight of the

evidence.


                                          CONCLUSION

       Based on the foregoing, the judgment of sentence should be affirmed.



                                               By the Court:




                                                   8
