J-S65036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEVIN SMITH
Appellant No. 3579 EDA 2014
Appeal from the Judgment of Sentence November 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010586-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MARCH 09, 2016
Appellant Devin Smith appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas following his jury trial
conviction for murder of the third degree.1 We affirm.
The trial court set forth the relevant facts of this appeal as follows:
On February 8, 2013, sometime between 2:00 and 2:45
p.m., [Appellant] punched and kicked Ramona Bell and
slammed her onto the floor inside a house at 4731 Salem
Street. After Ms. Bell fell to the floor, [Appellant]
continued to assault her. There were several other people
inside this “crack house” when the assault occurred. The
evidence established that [Appellant] was a drug dealer
and Ms. Bell was a drug user. Keith Bennett, who lived in
the house, allowed people to use his house to sell and use
drugs, so long as they paid him. According to one
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1
18 Pa.C.S. § 2502(c).
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eyewitness, [Appellant] assaulted Ms. Bell because she
allegedly arranged for someone to steal his gun and drugs.
Another eyewitness recalled [Appellant] being on a cell
phone discussing whether or not he should “get rid of”
everyone in the house. After [Appellant] ended his assault
on Ms. Bell, he walked back and forth over her unconscious
body and yelled: “She fucked up, tried to get me set up.
She deserved it. I just knocked her out.” When
[Appellant] was told that the victim needed medical
assistance, he said: “No, she all right. She’s asleep right
now.” Shortly thereafter, [Appellant] left the house.
* * *
[Ms. Bell] was pronounced dead at 7:55 p.m.
Dr. Marlon Osbourne conducted an autopsy of decedent
and testified at trial as an expert in forensic pathology. He
concluded to a reasonable degree of medical certainty that
the cause of Ramona Bell’s death was blunt head and
chest trauma, and that the manner of death was homicide.
Dr. Osbourne opined that decedent’s injuries were the
result of a severe beating and that there were repeated
blows to her head and other body parts.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 12, 2016, at 2-3
(citations to the record omitted).
A jury convicted Appellant of third degree murder on July 10, 2014.
On November 14, 2014, the court sentenced Appellant to twenty (20) to
forty (40) years’ incarceration. On December 15, 2014, Appellant filed a
timely notice of appeal.2 On December 24, 2014, the trial court ordered
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2
Because December 14, 2015 fell on a Sunday, Appellant’s appeal was
timely. See Commonwealth v. Leatherby, 116 A.3d 73, 86
(Pa.Super.2015) (“When computing the 30–day filing period ‘[if] the last day
(Footnote Continued Next Page)
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Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On January 12, 2015, Appellant timely filed
a concise statement, but mislabeled the statement “Post Sentence Motions.”3
Appellant raised the following issues in his erroneously labeled
statement:
1. There was insufficient evidence presented at trial for
the jury to render Devin Smith guilty of third degree
murder.
2. That the fact witnesses presented had all recanted their
testimony thus rendering their credibility unreliable and
not suitable for presentation to the jury.
Appellant’s “Post Sentence Motions,” filed January 12, 2015 (verbatim).
Appellant raises the following issue in his brief:
[WHETHER THERE WAS] SUFFICIENT EVIDENCE
PRESENTED AT TRIAL OF THIS MATTER TO PROVE THAT
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(Footnote Continued)
of any such period shall fall on Saturday or Sunday ... such day shall be
omitted from the computation.’ 1 [Pa.C.S.] § 1908.”).
3
On April 24, 2015, the trial court filed an opinion that deemed all of
Appellant’s issues waived for failure to file a Pa.R.A.P. 1925(b) statement.
While the trial court was correct that a complete failure to file, or failure to
timely file, a Pa.R.A.P. 1925(b) statement would result in waiver of
Appellant’s claims on appeal, a finding of waiver does not end the trial
court’s analysis or require it to ignore the issues raised. Commonwealth v.
Thompson, 39 A.3d 335, 341 (Pa.Super.2012). “[If] counsel fails to file a
Rule 1925(b) statement before the trial court files a Rule 1925(a) opinion,
the opinion should note the ineffectiveness of counsel, permit counsel to file
a statement nunc pro tunc and address the issues raised in a subsequent
Rule 1925(a) opinion.” Id. We remanded to the trial court for the filing of
a Pa.R.A.P. 1925(a) opinion addressing the issues raised in Appellant’s
mislabeled concise statement, and the court complied.
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[APPELLANT] WAS THE PARTICIPANT IN THE ASSAULT
AND SUBSEQUENT DEATH OF RAMONA BELL[?]
Appellant’s Brief at 5.
Appellant attempts to challenge the sufficiency of the evidence for his
third degree murder conviction. He claims that the jury convicted him based
on conjecture and not on sufficient evidence.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
The standard we apply in 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.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
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Appellant was convicted under the following statute:
2502. Murder
(a) Murder of the first degree.--A criminal homicide
constitutes murder of the first degree when it is committed
by an intentional killing.
(b) Murder of the second degree.--A criminal homicide
constitutes murder of the second degree when it is
committed while defendant was engaged as a principal or
an accomplice in the perpetration of a felony.
(c) Murder of the third degree.--All other kinds of
murder shall be murder of the third degree. Murder of the
third degree is a felony of the first degree.
18 Pa.C.S. § 2502.
A person may be convicted of third-degree murder where
the murder is neither intentional nor committed during the
perpetration of a felony, but contains the requisite malice
aforethought. Malice consists of 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.
Commonwealth v. Pigg, 571 A.2d 438, 441-42 (Pa.Super.1990), appeal
denied, 581 A.2d 571 (Pa.1990) (internal quotations and citations omitted).
The elements of third degree murder, as developed by
case law, are a killing done with legal malice but without
specific intent to kill required in first degree murder. Malice
is the essential element of third degree murder, and is the
distinguishing factor between murder and manslaughter.
Commonwealth v. Cruz–Centeno, 668 A.2d 536, 539 (Pa.Super.1995).
appeal denied, 676 A.2d 1195 (Pa.1996).
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Here, Appellant waived his challenge to the sufficiency of the evidence
by filing a deficient concise statement of errors complained of on appeal.
“If [an a]ppellant wants to preserve a claim that the evidence was
insufficient, then the 1925(b) statement needs to specify the element or
elements upon which the evidence was insufficient. This Court can then
analyze the element or elements on appeal.” Commonwealth v. Williams,
959 A.2d 1252, 1257 (Pa.Super.2008) (emphasis deleted). If the statement
does not specify the allegedly unproven elements, the sufficiency issue is
waived on appeal. Id. (noting that 1925(b) waiver is appropriate “despite
the lack of objection by an appellee and despite the presence of a trial court
opinion.”).
The instant 1925(b) statement does not specify any unproven
elements. Therefore, Appellant has waived his sufficiency claim.
Moreover, even if Appellant had preserved his issue, it is devoid of
merit.
The trial court reasoned:
[T]here was sufficient evidence to prove than an unlawful
and malicious killing occurred. The Commonwealth
established that [Appellant] punched and kicked Ramona
Bell, and then slammed her onto the floor. After she fell to
the floor, [Appellant] continued to assault her. After
assaulting the victim, [Appellant] paced over her
unconscious body and made statements acknowledging his
guilt. At trial, the assistant medical examiner concluded to
a reasonable degree of medical certainty that the cause of
Ramona Bell’s death was blunt head and chest trauma,
and that the manner of death was homicide. The assistant
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medical examiner further concluded that the decedent’s
injuries were sustained by a severe beating and that there
were repeated blows to her head and other body parts…
* * *
[Appellant’s] actions grossly deviated from the standard of
conduct that a reasonable person would observe under
these circumstances. To avenge an alleged theft,
[Appellant] repeatedly punched and kicked the victim, and
then slammed her to the floor, after which he continued to
punch and kick her. By engaging in such conduct,
[Appellant] consciously disregarded an unjustified and
extremely high risk that such conduct would cause
irreparable damage to a vital body organ and ultimately
lead to the victim’s death.
Trial Court Pa.R.A.P. Opinion, at 11-12.
Thus, even if Appellant had preserved his sufficiency claim, we agree
with the trial court that his claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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