Opinion
J-S71023-19 No. 2438 EDA 2018
02-07-2020
COMMONWEALTH OF PENNSYLVANIA v. MARLON GLENN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 16, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004532-2017 BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J. MEMORANDUM BY MURRAY, J.:
Marlon Glenn (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of voluntary manslaughter, possession of an instrument of crime (PIC), firearms not to be carried without a license, carrying firearms on a public street or public property in Philadelphia, and two counts of theft by unlawful taking. We affirm.
On May 30, 2017, Appellant was charged in connection with the murder of Ramone Anthony Smith (Smith). See Trial Court Opinion, 11/16/18, at 2-3. The trial court recounted the evidence as follows:
At trial, the Commonwealth presented the testimony of Philadelphia police officers Andrew Miller, Terrance Lewis, Terry Tull, Earl Tilghman, and Kelly Walker, Philadelphia police detectives Joseph Centeno and James Burke, Philadelphia
associate medical examiner Dr. Lindsay Simon, and Lerin Gilliard, David Westin, Von Williams, Margie Lazenbury, Carole Moore, Dennis Moore Jr., and Cameron Davis. [Appellant] presented no evidence. Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence established the following.
After work on Friday, March 3, 2017, Ramone Anthony Smith, the victim, drove his co-worker, Lerin Gilliard, to her home, but first stopped to pick up [Appellant]. After dropping off Gilliard, Smith and [Appellant] arrived at Smith's house on the 4800 block of Bouvier Street in Philadelphia. Smith and [Appellant] had been friends for several months and were also engaged in a sexual relationship, which had been limited to Smith performing oral sex on [Appellant]. [Appellant], however, did not identify as homosexual, and he lived and shared a bedroom with a woman.
Sometime after 9:00 p.m., [Appellant] was in Smith's basement working out. Smith walked over to [Appellant] and began to straddle him, which made [Appellant] upset. The two men got into a struggle during which [Appellant] grabbed Smith's gun from a holster on Smith. The men proceeded upstairs into the kitchen, where [Appellant], using Smith's gun, shot Smith one time in the back of the head.
Because Smith did not answer his phone after 9 p.m. on Friday, all day Saturday, and Sunday morning, Smith's friends, Cameron Davis and David Westin, grew concerned because they typically spoke with him every day. On Sunday, March 5, 2017, Davis and Westin went to Smith's house and noticed that Smith's Toyota Camry was missing. The friends entered Smith's house using a spare key that Smith had given them and they discovered the house was in "complete disarray" and looked "ransacked." In the living room, couch pillows were on the floor, and Smith's television was missing. In the dining room, papers were scattered across the table. In the middle upstairs bedroom, which Smith had converted to a walk-in closet because he loved to shop and had a large collection of wallets, watches and shoes, many of Smith's things were gone. Westin found Smith's dead body in the kitchen with a pool of dry blood surrounding his head. The medical examiner determined that the cause of death was a gunshot wound to the back of the head.
Philadelphia police detectives then conducted an investigation of the shooting. When police arrived at Smith's house, Davis and Westin gave detectives a photo of [Appellant], whom they believed was at Smith's house on that Friday night. Police were able to identify [Appellant] and discovered his last known address was the 200 block of North 61st Street. Officers also recovered Smith's FitBit and cell phone, and an analysis of the FitBit showed that Smith stopped moving at 9:42 p.m. on March 3, 2017.
Officers also learned of Smith's car's vehicle identification number [] and placed it in stolen status. The next day, March 6, 2017, police located Smith's car on the 100 block of North Robinson Street, which is located approximately a block and a half away from [Appellant's] residence. Shortly after initiating surveillance on the vehicle, [Appellant] arrived. Wearing blue rubber surgical gloves, [Appellant] connected jumper cables to Smith's car. He also went inside the front of Smith's vehicle. Officers then approached [Appellant], handcuffed him, and transported him to the Homicide Unit on 8th and Race Streets.
At Homicide, [Appellant] was placed in an interview room and waived his Miranda rights. However, he later requested a lawyer, so detectives immediately ended their questioning. The next day, March 7, 2017, [Appellant] asked to resume speaking with Detective James Burns and again waived his Miranda rights. During questioning [Appellant] wrote "private" on a piece of paper, crossed it out after Detective Burns saw it, and then asked to use the bathroom. While Detective Burns and [Appellant] were out of the interview room, [Appellant] confessed to killing Smith and told him the events that led to Smith's death. Although [Appellant] indicated that he would repeat his confession on camera, [Appellant] refused to do so once he and Detective Burns re-entered the interview room. Instead, he claimed that what he told Detective Burns was merely a hypothetical.
While [Appellant] was at the Homicide Unit, detectives executed a search warrant on [Appellant's] residence, and recovered items, including wallets, watches and shoes, which were later identified by Davis and Williams as items belonging to Smith. In addition, after police cleared the crime scene, Von
Williams, Smith's close family friend, went to Smith's house to clean the residence. On a shelf in the kitchen near where Smith's body was found, Williams found a 9 [millimeter] Ruger fired cartridge casing. Police recovered Smith's gun sometime in May 2017, when it was confiscated from Kyvon Jenkins in Abington Township. Jenkins lived in the West Philadelphia area, approximately one mile away from where [Appellant] resided. Ballistics testing showed that the fired cartridge casing found near Smith's body matched Smith's gun.Trial Court Opinion, 11/16/18, at 2-5 (citations to notes of testimony omitted, footnote added).
Miranda v. Arizona , 86 S.Ct. 1602 (U.S. 1966).
On December 27, 2017, a jury rendered their guilty verdicts. On March 16, 2018, the trial court sentenced Appellant to an aggregate 21 to 42 years of incarceration. Appellant filed a timely post-sentence motion, which the trial court denied on July 10, 2018. Appellant filed a timely notice of appeal. Both Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises two issues for our review:
1. Is [] Appellant entitled to an arrest of judgment on the verdict of voluntary manslaughter, PIC and VUFA, where the verdict was not supported by sufficient evidence?Appellant's Brief at 3.
2. Did the Trial Court err in denying Post Sentence Motion for New Trial and is [] Appellant entitled to a new trial as the verdict was not supported by the greater weight of the evidence?
Appellant's Rule 1925(b) statement raises an additional discretionary aspects of sentencing claim. See Rule 1925(b) Statement, 8/29/18, at 2. However, because Appellant abandoned this claim in his brief, we will not address it. See Appellant's Brief at 3; see also Commonwealth v. Briggs , 12 A.3d 291, 310 n.19 (Pa. 2011), cert. denied, 132 S.Ct. 267 (2011) (refusing to address claim appellant raised with trial court but subsequently abandoned in brief).
Initially, we observe that although Appellant purports to challenge the sufficiency of the evidence as to his convictions of PIC, firearms not to be carried without a license, and carrying a firearm in public in Philadelphia, the argument section of his brief does not refer specifically to any of these offenses nor does Appellant address any elements of those crimes. See Appellant's Brief at 9-12. Consequently, Appellant has waived these claims. See Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009) (claim of insufficient evidence for multiple convictions was underdeveloped, did not set forth elements of the crimes, did not argue which specific element was not met, and was thus waived); Commonwealth v. Plante , 914 A.2d 916, 924 (Pa. Super. 2006) ("We have repeatedly held that failure to develop an argument with citation to, and analysis of, relevant authority waives the issue on review."). We therefore limit our review to Appellant's challenge to the sufficiency of the evidence as it relates to his voluntary manslaughter conviction.
Our standard of review is well-settled:
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record "in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence." Commonwealth v. Widmer , [ ] 744 A.2d 745, 751 ([Pa.] 2000). "Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt."
Commonwealth v. Brewer , 876 A.2d 1029, 1032 (Pa. Super. 2005).Commonwealth v. Franklin , 69 A.3d 719, 722-23 (Pa. Super. 2013) (citing Commonwealth v . Pettyjohn , 64 A.3d 1072 (Pa. Super. 2013)).
Nevertheless, "the Commonwealth need not establish guilt to a mathematical certainty." Id .; see also Commonwealth v. Aguado , 760 A.2d 1181, 1185 (Pa. Super. 2000) ("[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence"). Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano , 782 A.2d 574, 582 (Pa. Super. 2001).
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer , 876 A.2d at 1032. Accordingly, "[t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence." Id. (quoting Commonwealth v. Murphy , 795 A.2d 1025, 1038-39 (Pa. Super. 2002)). Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. See Brewer , 876 A.2d at 1032.
Appellant argues that the evidence was insufficient to support his conviction of voluntary manslaughter because "no one saw" him shoot Smith. Appellant's Brief at 11. Appellant asserts that the Commonwealth failed to prove that he "fired the shot that entered the victim's head, which killed him," id. at 9, and claims "[t]here is nothing in the record which would refute the possibility of a third party having entered the home, shot the victim and retreated to safety." Id. at 10.
The Pennsylvania Crimes Code provides that voluntary manslaughter occurs: (1) where the defendant acted under a sudden and intense passion resulting from a serious provocation; or (2) where the defendant knowingly and intentionally killed an individual under the unreasonable belief that the killing was justified. 18 Pa.C.S.A. § 2503(a), (b).
Appellant's sufficiency argument is belied by the record. After reviewing the notes of testimony, we have determined that The Honorable Glenn B. Bronson, sitting as the trial court, has capably and accurately addressed Appellant's sufficiency argument. See Trial Court Opinion, 11/16/18, at 5-9; see also id. at 5 ("All of this evidence demonstrated that [Appellant], after a struggle, pursued Smith with a gun and shot him in the head with the intent to kill him."). We therefore adopt the trial court's analysis as our own in disposing of this issue.
In his second issue, Appellant argues that the guilty verdicts of voluntary manslaughter and "weapons offenses" were against the weight of the evidence. Appellant's Brief at 13.
Appellant properly preserved this issue in compliance with Pennsylvania Rule of Criminal Procedure 607 by raising it with the trial court in a post-sentence motion. Appellant's Motion for New Trial, 3/22/18, at 1-2.
We begin with our standard of review:
When the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review. Moreover, 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. Gibbs , 981 A.2d 274, 282 (Pa. Super. 2009) (citations omitted). "[I]t is for the fact-finder to make credibility determinations, and the finder of fact may believe all, part, or none of a witness's testimony." Id. (citation omitted). To allow an appellant "to prevail on a challenge to the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court." Commonwealth v. Talbert , 129 A.3d 536, 545 (Pa. Super. 2016) (citation omitted).
Instantly, Appellant's weight argument consists of two cursory paragraphs in which he states: "The Commonwealth did not prove that [] Appellant used any weapon or shot the victim. The argument is not complicated; simply put, the Commonwealth failed to prove that it was the Appellant who shot and killed the victim." Appellant's Brief at 13. Appellant's argument invokes the elements of voluntary manslaughter, and thus revisits the sufficiency of the evidence. See Commonwealth v. Widmer , 744 A.2d 745, 751-52 (Pa. 2000) (explaining the differences between sufficiency and weight of the evidence claims); see also Commonwealth v. Sexton , --- A.3d ----, 2019 WL 5540999, *5 (Pa. Super. 2019) ("A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict."). Appellant has failed to develop his challenge to the weight of the evidence, and therefore he is not entitled to relief. See id. at *6 ("It is Appellant's obligation to sufficiently develop arguments in his brief by applying the relevant law to the facts of the case, persuade this Court that there were errors below, and convince us relief is due because of those errors.") (citation omitted).
In sum, there is no merit to the issues Appellant raises on appeal. The parties shall attach a copy of the trial court's November 16, 2018 opinion in the event of further proceedings relevant to this matter.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/7/20
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