J-A02002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SEAN SULLIVAN

                         Appellant                   No. 1905 EDA 2013


           Appeal from the Judgment of Sentence May 10, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014636-2011


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                            FILED APRIL 17, 2015

      Appellant, Sean Sullivan, appeals from the judgment of sentence

entered May 10, 2013, by the Honorable Jeffrey P. Minehart, Court of

Common Pleas of Philadelphia County, following his conviction of murder in

the third degree and related offenses. We affirm.

      On June 21, 2011, while incarcerated for murder at the Curran-

Fromhold Correctional Facility, Sullivan got into a dispute with the inmates in

Cell 15, Aaron Young and Richard Gyton. Sullivan threatened to settle the

dispute later that night. Sullivan began to recruit co-conspirators, including

co-defendant Donte Jones, to assist him. Later that day, Sullivan, Jones and

two other inmates went to Cell 15. Sullivan had an improvised knife sticking

out of his pants. Prison guards ultimately dispersed the group.
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      Over the next hour, Sullivan and his friends huddled together in the

prison yard, while the Cell 15 inmates played basketball and then returned

to their cell. A few minutes later, a fight broke out among inmates waiting

to use the phone. Taking advantage of the confusion, Sullivan and two of

his cohorts ran to Cell 15 and stabbed Gyton and Young multiple times with

the improvised knives. A friend of Gyton and Young heard the screams and

ran towards their cell, where one of Sullivan’s friends attacked him. Sullivan

and company ran towards the day room, where they ambushed another

prisoner, Earl Bostic, stabbing him nine times and killing him.    Authorities

later recovered Sullivan’s DNA on one of the weapons used to kill Bostic.

      Following a bench trial, the trial court convicted Sullivan of murder in

the third degree, conspiracy to commit homicide, possession of an

instrument of crime, possession of a prohibited offensive weapon, and

aggravated assault.   The trial court acquitted Sullivan of various charges

stemming from the assaults on the other inmates. On May 10, 2013, based

upon Sullivan’s prior murder conviction, the trial court sentenced him to a

second mandatory life sentence for murder in the third degree, with

concurrent sentences on the remaining charges.           This timely appeal

followed.

      Sullivan first contends that the trial court erred when it permitted the

Commonwealth to improperly bolster the credibility of inmate Richard Gyton,

who was stabbed by Sullivan in the prison melee. Prior to trial, Gyton gave

a statement to police from his hospital bed, in which he implicated Sullivan

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in the stabbing of Bostic.         At trial, Gyton testified, contrary to his prior

statement, that he did not see who stabbed Bostic.               Although Guyton

claimed that he was under the influence of medication at the time the prior

statement was made, Detective Burke testified on cross-examination that

“[Gyton] spoke clearly. He understood what I was asking him. He was very

forthcoming.” N.T., Trial, 2/28/13 at 69.

       Preliminarily, we note that our review of the trial transcript reveals

defense counsel did not raise a contemporaneous objection to Detective

Burke’s allegedly improper testimony. On this basis, we find Sullivan’s claim

waived.    See Commonwealth v. May, 584 Pa. 640, 887 A.2d 750, 761

(2005) (holding that the “absence of a contemporaneous objection renders”

an appellant’s claims waived); Pa.R.E. 103. Although Sullivan asserts that

the trial court permitted Detective Burke to testify over counsel’s objection,

the record does not reveal an objection was lodged contemporaneous to the

detective’s testimony; nor does Sullivan provide a citation to support his

claim.1



____________________________________________


1
  Several witnesses after Detective Burke testified, defense counsel belatedly
raised an objection on the grounds that “the last three witnesses were
improper bolstering and vouching for the credibility of Commonwealth
witnesses.” N.T., Jury Trial, 2/28/13 at 86. This general objection was
neither timely nor specific. See Commonwealth v. Williams, 91 A.3d
240, 252 (Pa. Super. 2014) (“[T]o preserve an issue for appellate review, a
party must make a timely and specific objection at the appropriate stage of
the proceedings.”).



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      Nonetheless, even if we were to examine this claim, we would not

grant relief.      Pursuant to Pennsylvania Rule of Evidence 701, Opinion

Testimony by Lay Witness, lay witness testimony in the form of an opinion is

limited to one that is:

      (a) rationally based on the witness’s perception

      (b) helpful to clearly understanding the witness’s testimony or to
      determining a fact in issue; and

      (c) not based on scientific, technical, or other specialized
      knowledge within the scope of Rule 702.

Pa.R.E. 701.       “A lay person may testify to distinct facts observed by him

concerning the apparent physical condition or appearance of another.”

Commonwealth v. Counterman, 719 A.2d 284, 301 (Pa. 1998) (citation

omitted). In Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004), the

Supreme Court affirmed the admissibility of opinion testimony as to

Defendant’s “serious” manner as “opinion on a matter falling within the

realm of common knowledge, experience or understanding.”        Id., at 97.

      We would find that it was properly within the trial court’s sound

discretion to admit testimony that Gyton was clear and forthcoming as

falling   within    the   realm   of   common   knowledge,   experience       and

understanding. Clearly, Detective Burke’s testimony as to Gyton’s demeanor

during questioning was based upon his personal observation.                More

importantly, we do not find Detective Burke’s characterization impermissibly

intruded upon the duty of the jury to determine credibility of witnesses, but

rather provided relevant context to Gyton’s state of mind and demeanor at


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the time he gave his prior statement.      Therefore, Sullivan’s allegation of

error would merit no relief.

      Appellant next argues that the verdicts were against the weight of the

evidence. We note that

      [t]he finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses.

             As an appellate court we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when the figure of Justice totters on her
      pedestal, or when the jury’s verdict, at the time of its rendition,
      causes the trial judge to lose his breach, temporarily and causes
      him to almost fall from the bench, then it is truly shocking to the
      judicial conscience.

            Furthermore, where 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.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)

(citations and internal quotation marks omitted).

      We find no abuse of discretion by the trial court in determining that

the verdicts were not against the weight of the evidence. The record fully

supports the trial court’s determinations, and the court acted well-within its

discretion to credit the consistent testimony of the Commonwealth’s



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witnesses and not Sullivan. See Commonwealth v. Bullick, 830 A.2d 998,

1000 (Pa. Super. 2003) (“[T]he trier 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.”). Thus, we find this claim to be

without merit.

      Lastly, Sullivan argues that the evidence was insufficient to support his

conviction of third-degree murder. We review a challenge to the sufficiency

of the evidence as follows:

             The standard we apply when 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
      trier 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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused’s guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and


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      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Sullivan argues that his conviction for third-degree murder was

insufficient as the Commonwealth failed to establish that he acted with the

requisite malice. Third-degree murder is defined as all other murders that

are not first or second-degree murder:

      Third degree murder occurs when a person commits a killing
      which is neither intentional nor committed during the
      perpetration of a felony, but contains the requisite malice.
      Malice is not merely ill-will but, rather, wickedness of disposition,
      hardness of heart, recklessness of consequences, and a mind
      regardless of social duty. Malice may be inferred from the use of
      a deadly weapon on a vital part of the victim’s body. Further,
      malice may be inferred after considering the totality of the
      circumstances.

Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013) (citation

omitted).

      Sullivan contends that the evidence suggested that the decedent,

Bostic, was the “aggressor or a consensual combatant in the violent chaos

ensuing in C Block.” Appellant’s Brief at 22. Sullivan suggests that he was

merely acting “with the belief that it was every man for himself and reacting

to the violence all around him.” Id. Sullivan’s argument is unavailing. As

the trial court aptly noted, “[t]he evidence showed that [Sullivan] repeatedly

stabbed Mr. Bostic in the mid-section with a sharp object.”          Trial Court

Opinion, 4/25/14 at 5 (unnumbered). The record simply does not support



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Sullivan’s assertion that he attempted to retreat from the ensuing violence—

but instead indicates that he repeatedly stabbed an otherwise defenseless

victim.   It was certainly reasonable for the jury to conclude that repeatedly

stabbing the decedent in the mid-section constituted, at a very minimum,

extreme recklessness of consequences such that sufficient evidence of

malice existed to support Sullivan’s conviction of third-degree murder.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




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