Com. v. Lee

• Decision Date: 28 June 1993
• Citation: 426 Pa.Super. 345,626 A.2d 1238
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James LEE, Appellant.
• Court: Pennsylvania Superior Court

Page 1238

626 A.2d 1238

426 Pa.Super. 345

COMMONWEALTH of Pennsylvania, Appellee, v. James LEE, Appellant.

Superior Court of Pennsylvania.

Submitted April 19, 1993.

Filed June 28, 1993.

Marlene Cooperman, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before ROWLEY, President Judge and HUDOCK and BROSKY, JJ.

HUDOCK, Judge.

This is an appeal from the judgment of sentence imposed upon Appellant after a bench trial in which he was convicted of third degree murder and possession of an instrument of crime. ¹ Timely filed post-verdict motions were denied by the trial court, and Appellant was sentenced to a term of nine and one-half to nineteen years incarceration for murder and to a concurrent term of one to two years for possessing an instrument of crime. No appeal was taken. Thereafter, Appellant filed a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed). ² An amended petition was filed by counsel and the PCHA court granted Appellant's motion to file an appeal to this Court nunc pro tunc. On appeal, the sole issue raised by Appellant is whether there was sufficient evidence of malice to support his conviction of third degree murder. We affirm.

The facts underlying Appellant's convictions were summarized by the trial court as follows:

On June 9, 1985, at approximately 10:10 p.m., a Philadelphia Police Officer, while on patrol in the 4700 Block of Frankford Avenue was stopped by [Appellant]. At that time, [Appellant] stated to the police, "Officer, I have a problem. Ijust [sic] killed my girlfriend." After determining the location of the alleged crime, the Police Officer drove to 4613 Hedge Street, where, in the third floor apartment, the body of Rosa Delgado, a 20-year old Hispanic female was found (N.T. 12/20/85, pp. 5-9).

[Appellant] was immediately placed into custody, handcuffed, and transported to the homicide division of the Police Department at 8th and Race Streets.

The Police also found and took into custody a 16-gauge sawed-off shotgun owned by [Appellant], which was turned over to the firearms unit.

At 10:45 p.m. on June 9, 1985, [Appellant], while in the homicide division, gave a statement to the Police after being advised of and waiving his rights to remain silent or to speak to counsel.

That statement, which was admitted into evidence indicated that [Appellant] and the deceased were having a fight, when [Appellant] "reached over and picked up a shotgun that [he kept] in the house loaded, and it went off." (N.T. 12/20/85, p. 41).

After completion of the statement, [Appellant] was taken to the hospital at 11:50 p.m., on June 9, 1985, to be treated for a cut on his forehead, approximately 1/4 [-] 1/2 inch and was returned to the homicide division at 12:35 a.m. on June 10, 1985.

Testimony was also presented by Detective John O'Rourke of the Firearms Identification Unit who testified that he received the sawed-off 16-guage [sic] shotgun from the Mobile Crime Detection Unit of the Police Department. It was a Savage Arms Co., Stevens Model, 940D, Single-shot shotgun of 16-gauge without a serial number. The barrel of the shotgun was cut to 9 1/2 inches and buttstock was cut off at about 7 1/8 inches behind the triggerguard, giving the shotgun an overall length of approximately 18 1/4 inches. The gun was test fired and found to be operable.

Further testimony was given by [D]etective O'Rourke that after examining the weapon it was his opinion that the weapon could not be discharged accidentally, that is, without cocking it first, and then pulling the trigger.

Testimony was also given by Dr. Paul J. Hoyer, Assistant Medical Examiner, who conducted an autopsy on the body of Rosa M. Delgado on June 10, 1985. The pertinent findings were of an irregular 2 1/4 inch by 1 1/2 inch shotgun entrance wound on the left side of the face, two inches to the left of the midline, and four inches below the top of the head entering from the left side of the eye, and going into the brain from front to back.

The doctor further testified that the shotgun was fired at approximately from 5 1/2 inches from the face. It was the doctor's opinion that the cause of death was a shotgun wound to the head and the manner of death was homicide.

Trial Court Opinion at pp. 2-4 (except where noted, citations to notes of testimony omitted).

Appellant testified on his own behalf. As to his version of the events of the night in question, Appellant denied that he and the victim had been arguing and that he threatened to harm the victim. He further asserted that he picked up the gun while cleaning the apartment and held it pointed down to put it on top of the refrigerator, but that he accidentally shot the victim in the head from just inches away. Appellant admitted that he did not seek medical attention or other help for the victim, and went to see his mother before finally flagging down a police officer.

As noted above, Appellant claims that there was insufficient evidence of malice necessary to support a conviction of third degree murder. We disagree. The standard for reviewing a challenge to the sufficiency of the evidence is well-established:

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976).

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). "There is no requirement that a homicide ... be proven by eyewitness testimony. Circumstantial evidence may be sufficient to prove any element, or all of the elements of the crime." Id. at 250, 546 A.2d at 1107-08 (citations omitted). ³ Moreover, "[a]lthough no single bit of evidence may conclusively establish guilt, the verdict will be sustained where the totality of the evidence supports the finding of guilt." Id., (quoting, Commonwealth v. Crowson, 488 Pa. 537, 543, 412 A.2d 1363, 1365 (1980)). Finally, it is within the province of the fact finder, in this instance the trial court, to believe all, some, or none of the evidence. Commonwealth v. Gonzales, 415 Pa.Super. 564, 609 A.2d 1368 (1992).

The definition of malice is well-settled:

Malice consists of 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. Commonwealth v. Drum, 58 Pa. 9, 15 (1868); see also Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981) ... [Moreover] 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. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982).

Commonwealth v. Cottam, 420 Pa.Super. 311, 342-343, 616 A.2d 988, 1004 (1992) (citations omitted). Malice may be inferred from "the attending circumstances of the act resulting in the death." Commonwealth v. Gardner, 490 Pa. 421, 424, 416 A.2d 1007, 1008 (1980), (quoting Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975)). One such circumstance is evidence that the defendant used a deadly weapon upon a vital part of the victim's body; this inference alone is sufficient to establish malice. See generally, Commonwealth v. Torres, 396 Pa.Super. 499, 578 A.2d 1323 (1990) and the cases cited therein. Clearly, the Appellant's shooting of the victim in the head, at close range, is a sufficient use of a deadly weapon upon a vital part of the body. Cf. Commonwealth v. Rodgers, 500 Pa. 405, 456 A.2d 1352 (1983) (shotgun blast to the head at close range establishes the specific intent to take life).

Appellant takes issue with reliance on the inference of malice from using a deadly weapon upon a vital part of the body by citing this Court's decision in Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462 (1988) (en banc), reversed on other grounds, 524 Pa. 551, 574 A.2d 584 (1990). In Carbone, this Court reversed Carbone's first degree murder conviction stating:

... it is well settled that the intentional use of a deadly weapon on a vital part of the body raises a permissible inference of malice. [Commonwealth v. Hinchcliffe, 479 Pa. 551, 554, 388 A.2d 1068, 1070, cert. denied, 439 U.S. 989 [99 S.Ct. 588, 58 L.Ed.2d 663] (1978) ]. This inference has a dual purpose; it allows a jury to infer malice, Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Boyd, 463 Pa. 343, 344 A.2d 864 (1975), as well as a specific intent to kill, Commonwealth v. Toledo, 365 Pa.Super. 224, 529 A.2d 480 (1987); Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979).

The finder of fact is not required to ignore this inference merely because the defendant testifies that he did not intend to take a person's life. [Citations omitted.] Here, the Commonwealth relies on that inference of malice to justify the verdict. The jury was not required to disregard the inference merely because Carbone testified otherwise. However, the Commonwealth's reliance on the inference from the fact of the stabbing is misplaced under the facts of this case.

... In this case, the inference of malice that would normally arise from the use of a deadly weapon upon a vital part of the body of the deceased, absent further explanation, is negated by other evidence presented in this case by...