Opinion
J-S61009-16 No. 1713 WDA 2015
09-28-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. TINA LOUISE SHAFFER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 9, 2014
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000153-2014 BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY PANELLA, J.:
Appellant, Tina Louise Shaffer, appeals from the judgment of sentence entered in the Venango County Court of Common Pleas, Criminal Division, following her jury trial conviction for murder of the third degree. We affirm.
The relevant facts of this case as taken from the certified record are as follows. On March 4, 2014, Appellant and the decedent, Appellant's male companion, were arguing about whether Appellant would leave him. In an effort to convince Appellant to stay, the decedent grabbed his .22 caliber gun, pointed it at his chest, and said he would kill himself if Appellant left the decedent. The decedent placed Appellant's hands on the gun, still aiming at the decedent's chest, and yelled at her to pull the trigger. In the ensuing argument, Appellant and the decedent wrestled, and in the "heat of the moment," Appellant reported to police that she "must have pulled the trigger." N.T., Jury Trial, Day 2 of 5, 9/15/14, at 92. The gun fired, and the bullet entered decedent's chest, which became logged into his spinal cord causing internal hemorrhaging and death.
Following a five-day jury trial, the jury convicted Appellant of murder of the third degree. The court ordered a pre-sentence investigation report ("PSI") on November 3, 2014. At the sentencing hearing, on December 9, 2014, the court stated on record that it heard the testimony of the decedent's sibling who recounted the decedent's good character and counsel's argument regarding the trial evidence of the decedent's behavior toward Appellant, and that it considered the information in the PSI, the Commonwealth's recommended sentence, the Prison Inmate Evaluation Report, the circumstances of the incident, and the applicable sentencing guidelines. That day, Appellant was sentenced to 210 to 480 months' incarceration, with a credit of 280 days for time served, and to pay restitution to the decedent's family of $8,000.00 and the costs of prosecution.
Following the imposition of sentence, counsel for Appellant entered an oral motion to withdraw from the case, which the court granted. On December 11, 2014, Appellant's new counsel entered an appearance but later filed a conflict-of-interest motion on December 18, 2014, for counsel's prior representation of the decedent in a criminal case. That same day, counsel filed a motion to extend the deadline to file a post-sentence motion. The court subsequently granted both motions, and on December 23, 2014, the court ordered conflict counsel to represent Appellant.
Conflict counsel filed a petition for the extension of time to file a post-sentence motion of twenty-one days following the filing of the transcript proceedings. The court granted the request, and Appellant filed a timely post-sentence motion, arguing the Commonwealth presented insufficient evidence to establish Appellant possessed malice in the killing of the decedent, the court imposed a manifestly excessive and unreasonable sentence, and the prosecuting District Attorney had an impermissible conflict of interest that should have resulted in his recusal from the case. The court held a hearing on the post-sentence motion and later entered an opinion and order on October 22, 2015, denying Appellant's motion. Appellant filed a timely appeal.
Appellant raises three issues for our review:
THE EVIDENCE IN THIS CASE WAS INSUFFICIENT TO PROVE THAT THE [APPELLANT] COMMITTED THE CRIME OF MURDER OF THE THIRD DEGREE, AS SUFFICIENT EVIDENCE WAS NOT PRESENTED TO SHOW THE SHE KNEW HER CONDUCT [WOULD] RESULT IN DEATH OR SERIOUS BODILY INJURY TO ANOTHER[.]
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN THAT ITS SENTENCE WAS MANIFESTLY EXTREME AND CLEARLY UNREASONABLE, AND NOT INDIVIDUALIZED AS REQUIRED BY LAW[.]
THE LOWER COURT ERRED IN FAILING TO REQUIRE THAT ANOTHER PROSECUTOR REPRESENT [THE COMMONWEALTH] WHEN [APPELLANT] TESTIFIED THAT SHE HAD PREVIOUSLY HAD A RELATIONSHIP WITH THE PROSECUTOR[.]Appellant's Brief, at 2-3.
A challenge to the sufficiency of evidence implicates the following principles:
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) (citations omitted) (emphasis added).
Pennsylvania law states murder in the third degree is an unlawful killing with malice but without the specific intent to kill. See 18 Pa.C.S.A. § 2502(c). See also Commonwealth v. Santos , 876 A.2d 360, 363-64 (Pa. 2005); Commonwealth v. DiStefano , 782 A.2d 574, 582 (Pa.Super. 2001). Malice is defined as
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....["] [M]alice may be found where the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause serious bodily injury.Id. (quoting Commonwealth v. Cottam , 616 A.2d 988, 1004 (Pa. Super. 1992). Additionally, the finder of fact may infer malice by considering the totality of the circumstances. See Commonwealth v. Thomas , 656 A.2d 514, 516 (Pa. Super. 1995).
"We review the trial court's decisions on ... conflict of interest for an abuse of discretion." Commonwealth v. Sims , 799 A.2d 853, 856-857 (Pa. Super. 2002) (citations omitted). "A prosecution is barred when an actual conflict of interest affecting the prosecutor exists in the case; under such circumstances a defendant need not prove actual prejudice in order to require that the conflict be removed." Commonwealth v. Orie , 88 A.3d 983, 1021 (Pa. Super. 2014), appeal denied, 627 Pa. 757, 99 A.3d 925 (2014) (quoting Commonwealth v. Eskridge , 604 A.2d 700, 702 (Pa. 1992)).
Additionally, Pennsylvania Rules of Professional Conduct, Duties to Former Clients, states: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client...." 42 Pa.R.P.C. 1.9(a). "Matters are 'substantially related'...if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter." 42 Pa.R.P.C. 1.9, cmt. [3]. The comment further states: "When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited." Id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Oliver J. Lobaugh, we conclude Appellant is not entitled to relief. See Trial Court Opinion, filed October 22, 2015, at 2-10 (analyzing each of Appellant's issues and finding no relief is due). Accordingly, we affirm on the basis of the trial court's opinion.
We further observe the prosecuting District Attorney did not violate the Pennsylvania Rules of Professional Conduct. See 42 Pa.R.P.C. 1.9(a). Although Appellant was a former client of the prosecuting District Attorney in 2003, the prosecuting District Attorney did not represent the Commonwealth in a substantially related matter in 2014 where Appellant's confidential information would have materially advanced the Commonwealth's position. Id.; 42 Pa.R.P.C. 1.9, cmt. [3]. The prosecuting District Attorney entered an appearance only for Appellant's sentencing in 2003. He testified that no confidential communications were used against Appellant in the 2014 trial, he did not possess the factual basis for the 2003 incident, the 2003 incident did not involve a crime of crimen falsi, and the 2003 case was unrelated to the 2014 murder charges. See N.T., Post-Sentence Hearing, 8/11/15, at 11-17, 24.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/28/2016
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