Opinion
J-A29014-17 No. 711 EDA 2017
11-21-2017
COMMONWEALTH OF PENNSYLVANIA v. TIA JORDAN-MAJOR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 27, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR0012151-2015 BEFORE: LAZARUS, J., PLATT, J., and STRASSBURGER*, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Tia Jordan-Major appeals from the judgment of sentence of six-and-one-half to thirteen years' imprisonment, imposed after a jury found her guilty of third-degree murder. After careful review, we affirm.
18 Pa.C.S. § 2502(c).
Major killed her boyfriend, Frederick Drake, by fatally stabbing him in the chest with a kitchen knife that she grabbed while the two were arguing. Deputy Medical Examiner Dr. Albert Chu, who performed the autopsy on the victim, testified that Drake had a stab wound to his left upper chest, near the collarbone, which injured the left axillary artery and vein, causing extensive bleeding. Dr. Chu also testified that the stab wound was five inches deep, and angled slightly downward. N.T. Trial, 11/15/16, at 71-74, 78-81.
Police Officer Joseph Shookla, one of the first to respond, also testified. Officer Shookla stated that Major did not have any injuries, and he did not find a knife at the crime scene. Id. at 168-71, 196; N.T. Trial 11/16/16, at 85-92.
In her statement to detectives, Major said that she picked Drake up from a bar, Charlies B's, and that after she and Drake were home, they argued over his missing cell phone and keys. She told detectives that, at some point, she went into the basement with her daughter, Danielle Johnson, to avoid a confrontation. She stated that Drake calmed down, but the argument later resumed, and that Drake slapped and choked her and pulled her by the hair into the kitchen. While in the kitchen, Drake allegedly choked her again and when he backed up, Major stated she grabbed a knife from the kitchen counter rack, held it in front of her and told Drake to leave her alone. N.T. Trial, 11/15/16, at 226-30; N.T. Trial, 11/16/16, at 81-86; N.T. Trial, 11/17/16, at 44. In her statement, she said the following to the victim: "Leave. Go sit down. Go be with the bitches you were talking about. [She] just didn't want to be beat. [She had] been in abusive relationships before. [And she] shouldn't have to go through that no more." N.T. Trial, 11/16/16, at 73-74, 81-91, 207. At that point, according to her statement, Drake lunged toward her and walked into the knife. N.T. Trial, 11/15/16, at 168-71, 196; N.T. Trial, 11/16/16, at 85-92.
Major also testified at trial. She offered an additional reason for the argument that night, which she had not given in her statement to detectives. She testified that she picked Drake up from the bar and when they returned home he wanted to have sex, and that she told him "no" because she was menstruating. She stated that Drake slapped her. N.T. Trial 11/15/16, at 226-30; N.T. Trial, 11/16/16, at 74, 81-86; N.T. Trial, 11/17/16, at 44, 170, 174. She also testified that the stabbing was an accident. N.T. Trial, 11/16/16, at 186.
Major's daughter, Danielle, who witnessed the argument, testified as well. She confirmed Major's account that she and her mother went to the basement at one point to avoid a confrontation, and that at times the argument between Major and Drake became physical. Danielle testified that Drake elbowed her in the face when she tried to get between him and her mom. Id. at 44, 189-24; 11/17/16, at 35-70, 88.
Following a five-day trial, the Honorable Barbara A. McDermott presiding, the jury convicted Major of third-degree murder. The court sentenced her to 6½ to 13 years' imprisonment. Major filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement. She raises three issues for our review:
1. Is [Major] entitled to an arrest of judgment with regard to her conviction for third-degree murder since the evidence is insufficient to sustain the verdict of guilt as the Commonwealth failed to sustain its burden of proving [her] guilt beyond a reasonable doubt?
2. Is [Major] entitled to a new trial as a result of the trial court's ruling that overruled her objection to Deputy Medical Examiner Dr. Albert Chu's testimony that the death of the victim was not an accident?
3. Is [Major] entitled to a new trial as a result of the trial court's ruling that denied her motion for a mistrial made as a result of the improper argument the prosecutor presented in her summation?Appellant's Brief, at 4.
First, Major challenges the sufficiency of the evidence
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all 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 the witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Troy , 832 A.2d 1089, 1092 (Pa. Super. 2003) (citations omitted).
Major argues that the Commonwealth failed to meet its burden of establishing third-degree murder beyond a reasonable doubt. Specifically, Major claims the Commonwealth did not prove malice.
Third-degree murder is an unlawful killing with malice, but without the specific intent to kill. See 18 Pa.C.S. § 2502(c). See also Commonwealth v. Santos , 876 A.2d 360, 363 (Pa. 2005); Commonwealth v. DiStefano , 782 A.2d 574, 582 (Pa. Super. 2001). In Commonwealth v. Truong , 36 A.3d 592 (Pa. Super. 2012) (en banc), this Court explained, "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." Id. at 597. Malice was defined in Commonwealth v. Drum , 58 Pa. 95 (1868), as follows:
The distinguishing criterion of murder is malice aforethought. But it is not malice in its ordinary understanding alone, a particular ill-will, a spite or a grudge. Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is 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. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.Id. at 15. The crime of third-degree murder under the Crimes Code incorporates the common law definition of malice. Commonwealth v. Hinchcliffe , 388 A.2d 1068, 1070 (Pa. 1978). "Malice may be found where the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause serious bodily injury." Commonwealth v. Cottam , 616 A.2d 988, 1004 (Pa. Super. 1992). See Commonwealth v. Hare , 404 A.2d 388, 391 (Pa. 1979) (malice may be found where perpetrator consciously disregards unjustified and extremely high risk that his actions might cause death or serious bodily harm). Malice may be inferred from the use of a deadly weapon on a vital part of the victim's body, or it may be inferred after considering the totality of the circumstances. Truong , supra at 598.
One legal scholar has defined the point of demarcation for malicious conduct under Pennsylvania law as "dangerousness" — "the ... act creates such a dangerous situation" that the resultant deaths or serious bodily injuries "are products of malice." Bruce A. Antkowiak, The Art of Malice, 60 Rutgers L. Rev. 435, 471 (2008). As Antkowiak explains, "Malice asks for a solemn, societal judgment about whether [the defendant] was responsible for [a death or serious bodily injury] by bringing about a situation so unnecessarily dangerous to human life that empowering government to exercise its most ominous authority is the only rational societal response." Id. at 470. --------
Major's argument that there was "no evidence presented to show that [she] acted with . . . malice" is contradicted by the record. Appellant's Brief, at 18. The trial court observed that Major "acted recklessly and consciously disregarded an unjustified and extremely high risk by introducing the knife into her argument with Drake[.]" Trial Court Opinion, 4/25/17, at 6. We agree with the trial court that the evidence, viewed in the light most favorable to the Commonwealth, is sufficient to support the jury's third-degree murder conviction. That Major testified as to her relationship with and love for Drake does not negate the fact that her recklessness rose to the level of malice sufficient for a finding of third-degree murder. It was within the jury's province to infer malice from Major's use of a kitchen knife to Drake's chest; the jury was entitled to find that Major acted with a complete disregard of the high risk that her actions would cause significant bodily injury or death to Drake. See Commonwealth v. Stokes , 38 A.3d 846, 853 (Pa. Super. 2011) (it is not within province of this Court to re-weigh evidence and substitute our judgment for that of fact-finder); Commonwealth v. Mobley , 14 A.3d 887, 889-90 (Pa. Super. 2011) (same).
Further, Major's argument that the Commonwealth did not disprove self-defense beyond a reasonable doubt is also meritless. Major's testimony wavered between defending herself against Drake, who was considerably larger than her and had been drinking alcohol prior to the argument, and stating that Drake "lunged" at her and accidentally "walked into the knife." N.T. Trial, 11/15/16, at 173; N.T. Trial, 11/16/16, at 87-88; N.T. Trial, 11/17/16, at 176-77, 109, 258-63. The jury was free to believe all, part, or none of her testimony. See Troy , supra. See also Commonwealth v. Hinchcliffe , 388 A.2d at 1070-71 (malice and self-defense are mutually exclusive; where evidence is sufficient to prove malice, prosecution has also met burden of disproving self-defense).
The evidence presented at trial and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, support Major's third-degree murder conviction. Her challenge to the sufficiency of the evidence, therefore, is meritless. See Commonwealth v. Marks , 704 A. 2d 1095, 1098 (Pa. Super. 1997) (if record contains support for verdict, it may not be disturbed); see also Commonwealth v , Jackson , 485 A.2d 1102, 1104 (Pa. 1984) (what may appear unlikely to reviewing court cannot supplant what fact finder has found).
In her final two issues, Major claims she is entitled to a new trial because: (1) the trial court erred in overruling her objection to the medical examiner's testimony that the victim's death was not an accident; and (2) the trial court erred in denying her motion for a mistrial due to the prosecutor's improper remarks at summation.
Based on our review, we conclude that Judge McDermott's opinion comprehensively discusses and properly resolves these two remaining issues. See Trial Court Opinion, 4/25/17, at 8-14. Accordingly, we rely on the trial court's opinion to dispose of these claims, and we direct the parties to attach a copy of that opinion in the event of further proceedings.
Judgment of sentence affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/21/2017
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