Opinion
J. S41025/16 No. 2781 EDA 2014
06-28-2016
COMMONWEALTH OF PENNSYLVANIA v. MARCHELLE D. PICKNEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No.: CP-51-CR-002938-2012 BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY DUBOW, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Marchelle D. Pickney, appeals from the Judgment of Sentence entered in the Philadelphia County Court of Common Pleas, following her jury trial convictions for Third-Degree Murder and Possession of an Instrument of Crime ("PIC"). After careful review, we affirm on the basis of the trial court's Opinion.
The underlying facts, as summarized in the trial court's 1925(a) Opinion filed on February 9, 2015, are as follows:
These charges arose out of an argument between Appellant and her boyfriend, decedent, Brandt Lollie ("Lollie"). On December 18, 2011, at approximately 5:00 A.M., Lollie was pacing in the living room of the couple['s] new apartment unit on the 5200 block of Cottage Street, in the City and County of
Philadelphia. Lollie's footsteps woke Appellant who was also in the living room, lying with their sleeping one[-]year-old son and Appellant's one[-]year-old niece. Appellant believed Lollie had just returned home after [a] night of partying, and an argument ensued. Their son awoke, and Appellant ended the argument to put their son back to sleep. As Lollie tried to lay down with Appellant, he made a comment that Appellant did not like, and she punched him in the face. At this point both children were awake, and Appellant went to the kitchen to get juice for the children.
Lollie said, "You can't keep just hitting on me", and repeated this phrase two more times prior to following Appellant into the kitchen and punching her in the face. Appellant picked up a knife bought from a dollar store earlier that day and began to unwrap its plastic packaging. Lollie slapped Appellant in the face. Appellant told Lollie that if he slapped her again, she was going to stab him. Lollie slapped Appellant again, and she stabbed Lollie in the neck with the knife. Once Lollie started bleeding, Appellant instructed Lollie to sit down, placed her coat over the wound, and applied pressure. Appellant then called 911 and told them she had "just stabbed her boyfriend". During this time, the couple's son walked into the kitchen. Appellant instructed him to stay away, then exited the apartment and knocked on the door of the next unit in an attempt to have someone take the children. While outside of the apartment, Appellant heard police knocking on the entrance door of the apartment building, let them in, and led them to Lollie.
Police Officer Charles Schuck ("Officer Schuck") received a radio call about the incident at approximately 5:47 A.M. Officer Schuck drove approximately three (3) minutes to the scene where he was unable to open the common entrance door of the apartment building, and was joined soon thereafter by a medic unit. When Officer Schuck and the medic unit arrived in Appellant's kitchen Lollie was unresponsive. Officer Schuck directed Appellant into a bedroom with the children to allow the medic unit to work on Lollie uninterrupted. Appellant repeatedly apologized to the children, and recounted to Officer Schuck how she had warned Lollie that she would stab him.
Lollie was stabbed one (1) time in the lower left neck above the clavicle, where the knife blade went through a major artery and injured the upper lobe of the left lung. Lollie was
pronounced dead on the scene at 6:05 A.M. The knife blade, still partially encased in plastic, was found at Lollie's feet, and the knife handle was found elsewhere on the kitchen floor. An autopsy was performed by Associate Medical Examiner Dr. Aaron Rosen, who determined the cause of death was a stab wound to the neck. The manner of death was found to be homicide.Trial Court Opinion, filed 2/9/15, at 2-4.
The children's grandmother arrived to watch the children, and Appellant was taken to the Homicide Unit where she made a detailed statement.
On April 21, 2014, following Appellant's conviction by a jury, the trial court sentenced Appellant to 12 to 25 years' incarceration for her Third-Degree Murder conviction. On May 1, 2014, Appellant filed a Post-Sentence Motion, which the trial court denied by operation of law on September 3, 2014.
The trial court imposed no further penalty for the PIC conviction.
Appellant filed a Notice of Appeal on September 30, 2014. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On March 23, 2015, on Appellant's motion, this Court remanded to allow Appellant to supplement her Pa.R.A.P. 1925(b) statement. The trial court subsequently filed a supplemental Rule 1925(a) opinion. The issue raised in the supplemental Rule 1925(b) statement, i.e., prosecutorial misconduct, was not raised in Appellant's brief. She has, thus, abandoned the issue. See Commonwealth v. Sanchez , 36 A.3d 24, 72 (Pa. 2011) (holding issue purposely abandoned on appeal is not reviewable).
Appellant raises two issues on appeal:
1. Is Appellant entitled to an arrest of judgment on the charge of murder in the third degree, where there was insufficient evidence to support the verdict and where the evidence did not
establish beyond a reasonable doubt that Appellant acted with malice?Appellant's Brief at 3.
2. Is Appellant entitled to a new trial where the greater weight of the evidence does not support a verdict of murder in the third degree and where the verdict, especially with regard to the finding of malice, was based on speculation, conjecture and surmise?
We review claims regarding the sufficiency of the evidence by considering 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. Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014). Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. Id. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id.
When considering challenges to the weight of the evidence, we apply the following precepts:
The weight of the evidence is exclusively for the finder of fact[,] who is free to believe all, none or some of the evidence and to determine the credibility of witnesses.
Appellate review of a weight claim is a review of the exercise of discretion, not the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence.Commonwealth v. Talbert , 129 A.3d 536, 545-46 (Pa. Super. 2015) (internal quotation marks and citations omitted). Further, "[i]n order for a defendant 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." Id. at 546 (internal quotation marks and citation omitted).
One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
The Honorable Lillian H. Ransom sitting as the trial court has authored a comprehensive, thorough, and well-reasoned opinion, citing to the record and relevant case law in addressing Appellant's claims on appeal. After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion, filed 2/9/15, at 4-7 (concluding that: (1) the verdict was not against the weight of the evidence and did not shock the conscience; and (2) the evidence was sufficient to support Appellant's Third-Degree Murder conviction because Appellant confessed that she used a knife, a deadly weapon, to stab the victim in the neck, a vital part of the body).
The parties are instructed to attach a copy of the trial court's 2/9/15 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/28/2016
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