Com. v. Newell, S.

J. A21040/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
STANLEY NEWELL, : No. 2800 EDA 2019
:
Appellant :

Appeal from the Judgment of Sentence Entered January 30, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001491-2016

BEFORE: LAZARUS, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 16, 2020

Stanley Newell appeals nunc pro tunc1 from the January 30, 2017

judgment of sentence, entered in the Court of Common Pleas of Philadelphia

County, after a jury convicted him of third-degree murder, firearms not to be

carried without a license, carrying a firearm on a public street in Philadelphia,

and possession of an instrument of crime.2 Appellant was sentenced to a term

of 15½-31 years’ imprisonment for third-degree murder, and a consecutive

term of 3-6 years’ imprisonment for carrying a firearm without a license. No

further penalty was imposed on the remaining charges. After careful review,

we affirm.

1 Appellant’s rights were reinstated nunc pro tunc by the PCRA court, with
the Commonwealth’s consent, on August 26, 2019.

2 18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 6108, and 907(a), respectively.
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The facts, as summarized by the trial court, are as follows:

On September 20, 2014, the Twisters Motorcycle Club
hosted its annual anniversary ceremony at the Nifiji
Event Hall at 1432 Chew Avenue in North Philadelphia.
Between 500 and 1,000 people affiliated with several
Philadelphia motorcycle clubs attended the event,
including Desmond “Little G” Davis, a member of the
Twisters, [appellant], Stanley “Stizz” Newell, a
member of the rival Byrd Riders Motorcycle Club, and
his co-defendant, Marcus “Taz” Brown, another Byrd
Rider.

At approximately midnight on September 21, 2014,
an argument between “Gun,” the chapter president of
the Byrd Riders, and Davis commenced outside the
event hall on Chew Avenue, drawing the attention of
[appellant] and Brown. As the argument continued,
[appellant] approached Davis and fellow Twister Tyrell
Ginyard and argued with Davis, while co-defendant
Brown ran up to Davis from behind, brandished a Colt
.45 caliber pistol, and pointed it at Davis’ face.

Approximately ten feet away from [appellant] and
Davis, the decedent Michael “Country” Baker, a
member of the Twisters, drew his pistol, raised it
above his head, and fired one shot. The gunfire
caused the crowd of over seventy-five attendees
standing outside the Event Hall to panic and scatter.
Several armed attendees drew their weapons and
proceed to fire at each other.

After the gunfire broke out, [appellant] left the Event
Hall via Chew Avenue, armed himself with a revolver,
and returned to the scene. Erick Clark, a Twister, ran
outside to assist his club during the commotion, and
linked up with the decedent. Clark and the decedent
observed [appellant] fire shots from his location on
Chew Avenue and they returned fire. The decedent
ran towards [appellant]’s location returning fire,
whereupon [appellant] shot him in the neck.

....

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Officers of the Philadelphia Police crime scene unit
investigated the area surround the Nifiji Event Hall
and recovered twenty-five fired cartridge casings
(FCCs) and a live .38 caliber Smith & Wesson round.
Officer Ronald Weitman, a ballistics expert,
investigated the projectile recovered from the
decedent’s body and determined that it was consistent
with having been fired from a .38 Special revolver.

Detective Frank Mullen, an expert in video recovery,
obtained video surveillance footage from multiple
angles at the Nifiji Event Hall and a private residence
at 5626 Park Avenue. The recovered video showed
the decedent walking around a vehicle and [appellant]
walk[ing] eastbound on Chew Avenue with a gun in
his hand. As the decedent approache[d], [appellant]
pointed his revolver at the decedent, ready to fire.
Immediately after, the decedent runs away hunched
over and doubled down. Another individual is shown
returning fire from Park Avenue.

Philadelphia detectives interviewed Clark, Ginyard,
and fellow Twister and eyewitness Rodney Gregory,
each of whom identified [appellant] via photo array
and as the armed male walking down Chew Avenue
and aiming his weapon at the decedent in the video.
After his arrest, police detectives interviewed
[appellant], who was read his Miranda[3] warnings
and provided a taped interview and written statement.
During the interview, [appellant] stated that he
grabbed a gun in front of the Nifiji Event Hall and
walked down Chew Avenue, where he either dropped
the gun or gave it to someone else. Detectives
showed [appellant] video of him walking down Chew
Avenue armed with a gun, and he identified himself
....

Trial court Rule 1925(a) opinion, 3/29/17 at 2-4 (citations to notes of

testimony and exhibit omitted).

3 Miranda v. Arizona, 384 U.S. 436 (1966).

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Following trial, on November 15, 2016 the jury convicted appellant of

the above charges. On November 16, 2016, appellant filed a motion for

extraordinary relief, challenging the sufficiency and weight of the evidence

supporting his conviction. (See motion, 11/16/16, at ¶¶ 2-3.) The trial court

denied the motion on November 23, 2016. On January 30, 2017, the trial

court sentenced appellant to an aggregate sentence of 18½ to 37 years’

imprisonment for his third-degree murder and VUFA § 6106 convictions. The

trial court imposed no further penalty on the remaining firearms convictions.

That same day, appellant filed a motion for reconsideration of sentence. On

February 1, 2017, the trial court denied appellant’s motion. Appellant timely

appealed. See Commonwealth v. Newell, 2018 WL 1443851 (Pa.Super.

March 23, 2018) (unpublished memorandum). A panel of this court found

that appellant waived his issues on appeal for several reasons, including his

failure to present his claims with citations to relevant authority and to

meaningfully develop his issues. Id. at *2-3; see Pa.R.A.P. 2119(a).

Appellant did not petition our supreme court for allowance of appeal.

On December 20, 2018, appellant filed a timely pro se PCRA petition.4

On June 28, 2019, PCRA counsel filed an amended petition. On August 26,

2019, with agreement by the Commonwealth, the PCRA court granted

appellant relief and reinstated his appellate rights nunc pro tunc. Appellant

filed a timely notice of appeal. On September 23, 2019, appellant was ordered

4 42 Pa.C.S.A. §§ 9541-9546.

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to file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b). Appellant timely complied. On October 28, 2019, the

PCRA court filed a supplemental Rule 1925(a) opinion, incorporating the trial

court’s Rule 1925(a) opinion of March 29, 2017.

The sole issue appellant raises on appeal is as follows:

Where there was insufficient evidence that [a]ppellant
participated in this shooting death, was the evidence
insufficient as a matter of law to prove the charges of
third-degree murder and possession of an instrument
of crime?[5, 6]

Appellant’s brief at 2.

Appellant contends that the evidence was insufficient to convict him of

third-degree murder and possession of an instrument of crime because “[a]t

5In his brief, appellant asserts that this is the only issue preserved for appeal.
(See appellant’s brief at 4 n.1.)

6 As a preliminary matter, we note that:

“when challenging the sufficiency of the evidence on
appeal, the ‘[a]ppellant’s [court ordered
Pa.R.A.P. 1925(b) concise] statement must specify
the element or elements upon which the evidence was
insufficient’ in order to preserve the issue for appeal.”
If the appellant fails to conform to the specificity
requirement, the claim is waived.

Commonwealth v. Smyser, 195 A.3d 912, 915 (Pa.Super. 2018) (citation
omitted). Here, appellant avers there was insufficient evidence to find he
participated in the shooting. “Although [a]ppellant did not specify the
allegedly unproven element or elements of his convictions in his Rule 1925(b)
statement, we find this statement . . . sufficient to preserve [his] challenge to
the sufficiency of the evidence to sustain his convictions . . . .”
Commonwealth v. Richard, 150 A.3d 504 (Pa.Super. 2016) (citation
omitted). We, therefore, will consider whether this issue is meritorious.

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no time, despite the ability to observe the events in question, did any

eyewitness ever state or testify they observed [appellant] shoot anyone.” (Id.

at 8.) Appellant further asserts that “the video evidence does not show [him]

firing any weapon . . . . [and there was n]o physical evidence . . . to link [him]

to the murder.” (Id. at 10.)

As to challenges to the sufficiency of the evidence,

[o]ur standard of review for a challenge to the
sufficiency of the evidence is well settled. We must
view all the evidence in the light most favorable to the
verdict winner, giving that party the benefit of all
reasonable inferences to be drawn therefrom.
Additionally, it is not the role of an appellate court to
weigh the evidence or to substitute our judgment for
that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

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 finder of fact while
passing upon the credibility of witnesses and the

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weight of the evidence produced, is free to believe all,
part or none of the evidence.

Commonwealth v. Tejada, 107 A.3d 788, 792-793 (Pa.Super. 2015)

(citations omitted), appeal denied, 119 A.3d 351 (Pa. 2015).

Appellant first contends there was insufficient evidence to prove

third-degree murder.

Pennsylvania retains the common law definition of
murder, which is a killing conducted “with malice
aforethought.” Commonwealth v. Santos, 583 Pa.
96, 876 A.2d 360, 363 (2005); Commonwealth v.
Thomas, 527 Pa. 511, 594 A.2d 300, 301 (1991).
Section 2502 of the Pennsylvania Crimes Code
categorizes murder into degrees. See generally
18 Pa.C.S.[A.] § 2502(a)-(c). Third-degree murder is
defined as “all other kinds of murder,” i.e., those
committed with malice that are not intentional
(first-degree) or committed during the perpetration of
a felony (second-degree).

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

of third-degree murder:

our courts have consistently held that malice is
present under circumstances where a defendant did
not have an intent to kill, but nevertheless displayed
a conscious disregard for an unjustified and extremely
high risk that his actions might cause death or serious
bodily harm.

Id. (citations and quotation marks omitted).

Regarding the issue of appellant’s identity as the shooter,

Proof beyond a reasonable doubt of the identity of the
accused as the person who committed the crime is
essential to a conviction. The evidence of
identification, however, needn’t be positive and
certain in order to convict, although any indefiniteness

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and uncertainty in the identification testimony goes to
its weight. Direct evidence of identity is, of course,
not necessary and a defendant may be convicted
solely on circumstantial evidence.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (internal

citations and quotation marks omitted). “Furthermore, even if the

Commonwealth presented only circumstantial evidence and offered no

positive identification of the assailant, we may not weigh the evidence and

substitute our judgment for the fact-finder as long as the evidence was

sufficient to prove [a]ppellant’s guilt.” Commonwealth v. Robertson, 874

A.2d 1200, 1206 (Pa.Super. 2005) (citation omitted).

As to the element of malice, “[m]alice may be inferred from the

circumstances of the accused’s conduct. The defendant’s conduct must be

such that one could reasonably anticipate death or serious bodily injury would

likely and logically result. Commonwealth v. Akhmedov, 216 A.3d 307,

322 (Pa.Super. 2019) (citation and quotation marks omitted), appeal

denied, 224 A.3d 364 (Pa. 2020). “Malice may be inferred from the use of a

deadly weapon on a vital part of the victim’s body.” Commonwealth v.

Gooding, 818 A.2d 546, 550 (Pa.Super. 2003), appeal denied, 835 A.2d

709 (Pa. 2003). “Further, malice may be inferred after considering the totality

of the circumstances.” Commonwealth v. Gonzalez, 858 A.2d 1219, 1223

(Pa.Super.2004), appeal denied, 871 A.2d 189 (Pa. 2005).

Here, the evidence as to the identity of the shooter came from a

compilation video that was put together by Detective Frank Mullen and shown

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to the jury. (Notes of testimony, 11/10/16 at 68, 69, 74; Commonwealth

Exhibit C-131.) The video included footage from security cameras at the

Nifiji Nightclub/Event Hall (“club”) and from a private residence on

Park Avenue. (Id. at 68, 69.) The club is located at the intersection of Chew

and Park Avenues. (Notes of testimony, 11/8/16 at 118.) Detective Mullen

provided the narration.7

It is uncontested that both the victim, Michael Baker, and appellant each

had a firearm in their possession at some point during the incident. (Notes of

testimony, 11/8/16 at 250, 251, 289; 11/9/16 at 26, 44, 56, 57, 135.) The

video shows that, at some point, appellant is on Chew Avenue, headed

towards its intersection with Park Avenue. (Notes of testimony, 11/10/16 at

147, 159, 160.) He takes a shooting stance behind a black vehicle parked at

the intersection of Chew and Park Avenues, on the southwest corner, facing

south. (Id. at 88, 89, 130, 149, 157, 162.) The victim is on Park Avenue,

walking towards its intersection with Chew Avenue. (Id. at 159.)

7 “[I]t is an appellant’s responsibility to ensure that this court has the complete
record necessary to properly review” his claims. Commonwealth v.
Kleinicke, 895 A.2d 562, 575 (Pa.Super. 2006), appeal denied, 929 A.2d
1161 (Pa. 2007); see also Commonwealth v. Kennedy, 151 A.3d 1117
(Pa.Super. 2016) (finding where review is dependent on materials not in
certified record claim cannot be considered and is waived). Here, this court
has the transcription of Detective Mullen’s testimony, without the
corresponding video footage. Therefore, determining the evidence presented
to the jury is difficult, despite our thorough review of the trial transcript.
However, because we have the transcript and certain exhibits, we will review
appellant’s sufficiency of the evidence claims.

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There are times in the video when either Baker or appellant are out of

range of the video cameras. (Id. at 89, 146, 160, 313.) At one point, when

appellant is out of range, two muzzle flashes are seen. (Id. at 89.) Then, the

victim is seen running down Park Avenue, hunched over. (Id.)

Lieutenant Robert McKeever found the victim on Park Avenue and took him to

the hospital. (Notes of testimony, 11/8/16 at 85, 91, 101.)

Doctor Albert Chu, the Deputy Chief Medical Examiner, testified that the

victim died of gunshot wounds to the neck and torso. (Notes of testimony,

11/9/16 at 219, 220.)

Following the shooting, the video was shown to several witnesses.

Tyrell Ginyard and Rodney Gregory identified appellant as having a firearm in

his hand in the video. (Notes of testimony, 11/9/16 at 56, 57, 142, 151.)

Appellant also gave a statement to the police wherein he identified himself as

holding a firearm. (Notes of testimony, 11/10/16 at 311.)

Here, the trial court opines that the Commonwealth presented sufficient

evidence to support appellant’s third-degree murder conviction. (Trial court

Rule 1925(a) opinion, 3/29/17 at 6.) The trial court reasons that appellant

drew a weapon, aimed and fired at the decedent, and struck vital parts of

decedent’s body; “conduct reflect[ing] an extreme indifference to human life.”

(Id.)

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Viewing the evidence adduced at trial in the light most favorable to the

Commonwealth, as the verdict winner, we conclude there was sufficient

evidence to sustain appellant’s conviction for third-degree murder.

Lastly, appellant contends there was insufficient evidence to support his

conviction for possessing an instrument of crime. See 18 Pa.C.S.A. § 907(a).

To convict an individual of PIC, the Commonwealth
has the burden of proving two elements:
(1) possession of an object that is an instrument of
crime and (2) intent to use the object for a criminal
purpose. [T]he actor’s criminal purpose . . . provides
the touchstone of his liability for the PIC offense, and
[s]uch purpose may be inferred from the
circumstances surrounding the possession.

Commonwealth v. Brockington, 230 A.3d 1209, 1213 (Pa.Super. 2020)

(citations and quotation marks omitted). As found in Commonwealth v.

Buford, 101 A.3d 1182 (Pa.Super. 2014), appeal denied, 114 A.3d 415 (Pa.

2015):

[O]nce the factfinder concluded that the appellant was
the slayer and that the death resulted from the
infliction of a gunshot wound, the factfinder could
logically have concluded from all of the evidence that
appellant had possession of a gun, that the gun was
an instrument commonly used for criminal purposes,
and that his possession of the gun was, under the
circumstances, not manifestly appropriate for any
lawful use that the gun may have had.

Id. at 1190; see also Commonwealth v. Santiago, 980 A.2d 659, 662

(Pa.Super. 2009) (noting appellant’s use of loaded gun on victim more than

sufficient to establish possession of an instrument of crime), appeal denied,

991 A.2d 312 (Pa. 2010), certiorari denied, 562 U.S. 866 (2010).

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Our review of the record, viewed in the light most favorable to the

Commonwealth, reflects that the evidence presented by the Commonwealth

supported appellant’s conviction of possession of an instrument of crime.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/20

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