Com. v. Marks

• Decision Date: 18 December 1997
• Citation: 704 A.2d 1095
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. David MARKS, Appellant.

Page 1095

704 A.2d 1095

COMMONWEALTH of Pennsylvania, Appellee, v. David MARKS, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 30, 1997.

Filed Dec. 18, 1997.

Samuel C. Stretton, West Chester, for appellant.

Stuart Magargee, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, SCHILLER and MONTEMURO, ^* JJ.

MONTEMURO, Judge:

Appellant, David Marks, appeals from the July 23, 1996 orders entered in the Court of Common Pleas of Philadelphia County denying his post-trial motions and affirming his April 9, 1996 judgment of sentence. We affirm.

On September 22, 1993, Maurice Anthony was murdered. Appellant, the suspect in the case, fled to New York, where he committed, was arrested for, and plead guilty to two additional homicides.

He was returned to Pennsylvania where, after waiving his right to a jury trial, he was tried for Mr. Anthony's murder in a bench trial on March 18, 1996 and March 19, 1996, at the conclusion of which he was found guilty of third degree murder. On April 19, 1996, the trial court sentenced Appellant to the mandatory term of life in prison pursuant to 42 Pa.C.S. § 9715, given his New York homicide convictions.

After the trial court denied his post-trial motions and affirmed his judgment of sentence on July 23, 1996, Appellant filed this timely appeal.

Appellant raises the following issues: (1) the evidence was insufficient to sustain a guilty verdict and the verdict was against the weight of evidence, and (2) a sentence of mandatory life imprisonment pursuant to 42 Pa.C.S. § 9715 is improper because this statute was not intended to apply when the crime triggering the statute occurred subsequent to the crime for which the life sentence is being imposed, and because application of the provision under such circumstances violates due process of law.

The testimony at trial developed as follows: On September 23, 1993, Detective Denis Graeber was assigned to investigate a possible crime scene at 1107 West Tioga Street, Philadelphia, where Appellant's mother found a dead body. Upon arrival, the Detective climbed the stairs to the second floor of the home where he observed four bedrooms linked by a hallway. Large amounts of blood stained the walls and floors of all but the back bedroom. In the front bedroom, next to a disconnected telephone, Detective Graeber found the deceased Mr. Anthony, with his head soaked in blood, leaning against a blood stained mattress. Outside of this bedroom, the Detective found a bloody sledgehammer and glove. Also located around the house were a loaded, sawed-off shotgun in the unlocked first floor closet, as well as a steak knife and tire iron in the second floor rear bedroom. The detective testified that the evidence at the scene indicated that an altercation began in the rear bedroom and progressed to the front of the house. Following his crime scene investigation, Detective Graeber obtained a warrant for Appellant's arrest. Appellant was not immediately apprehended, however, since he had fled to New York, where, after being arrested on an unrelated charge, he gave four different accounts of the Pennsylvania incident.

While a fugitive in New York, Appellant committed two homicides. In separate proceedings he pleaded guilty to both, receiving sentences of 20 years to life and 8 1/2 to 25 years imprisonment.

Dr. Edwin Lieberman, Assistant Medical Examiner, testified that an examination of the victim revealed numerous lacerations to the top, side and back of the Mr. Anthony's head caused by approximately 12 separate blows that could have been delivered by an individual wielding an instrument similar to the sledgehammer found at the scene. He concluded that the manner of death was homicide caused by acute blood loss due to blunt force injuries to the head. On cross-examination, Dr. Lieberman testified that because there was no internal bleeding on the brain and the skull was not fractured, it was unlikely that Mr. Anthony suffered the full force of a blow from the sledgehammer.

Appellant first claims that the evidence was insufficient to support a verdict and that the conviction was against the weight of evidence. When reviewing a sufficiency of the evidence claim, this Court must view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the Commonwealth as verdict winner and determine if the evidence was sufficient to enable the fact-finder to establish all the elements of the offense. Commonwealth v. Rios, 546 Pa. 271, 279, 684 A.2d 1025, 1028 (1996). As such, when reviewing for sufficiency of the evidence, this Court may not substitute its judgment for that of the factfinder; if the record contains support for the verdict, it may not be disturbed. Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986).

The finding of the trial court as to whether the verdict is against the weight of evidence may not be disturbed absent an abuse of discretion. Commonwealth v. Sanders, 426 Pa.Super. 362, 367-68, 627 A.2d 183, 185, allocatur denied, 535 Pa. 657, 634 A.2d 220 (1993). This determination requires the court to assess the credibility of the testimony offered by the Commonwealth. Commonwealth v. Tapper, 450 Pa.Super. 220, 224, 675 A.2d 740, 742 (1996). However, generally "[t]he weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses." Commonwealth v. Simmons, 541 Pa. 211, 229, 662 A.2d 621, 630 (1995). As such, this Court may not reverse the verdict unless it is "so contrary to evidence as to shock one's sense of justice." Id. After reviewing the evidence under these standards, we conclude that the verdict of third degree murder was supported by the evidence and consistent with the weight of the evidence.

In support of these claims regarding the sufficiency and weight of evidence, Appellant first contends that he acted in self-defense or in the mistaken belief of self- defense. The Commonwealth must disprove a claim of self-defense beyond a reasonable doubt. Commonwealth v. Brown, 538 Pa. 410, 417, 648 A.2d 1177, 1180 (1994). A successful claim of self-defense negates the malice element of third degree murder. Commonwealth v. Gonzales, 415 Pa.Super. 564, 569, 609 A.2d 1368, 1370 (1992). To disprove a claim of self-defense, the Commonwealth must show any one of the following: "(1) the defendant's belief that it was necessary to kill the victim in order to protect himself from death or serious bodily harm was unreasonable; (2) the defendant provoked the use of force; or (3) the defendant had a duty to retreat and could safely do so." Id. If the defendant actually, but unreasonably, believed that deadly force is necessary, then he or she is guilty of voluntary manslaughter. Commonwealth v. Mehmeti, 501 Pa. 589, 597, 462 A.2d 657, 661 (1983).

In the instant case, the evidence easily supports a finding that Appellant neither reasonably nor actually believed that deadly force was necessary. First, in two of his accounts, he admitted that he went after his unarmed victim and struck him several times with the sledgehammer. In exercising its role as evaluator of credibility, the trial court chose to believe Appellant's earlier version of events, as opposed to those accounts in which he claimed variously that Mr. Anthony initially wielded the sledgehammer, or in that they both grabbed for the weapon: "[t]he court, which is free to believe all, part, or none of the testimony, chose to believe those portions of [Appellant's] pretrial statements in which he admitted ... that he attacked Mr. Anthony, after the fight was over and struck him with the hammer." (Trial Ct. Op. at 6). Further, the medical examiner testified that several of the lacerations were on the back of Mr. Anthony's head, indicating that when those blows were struck, Mr. Anthony posed no real or imagined threat to Appellant.

In support of his self-defense argument, Appellant cites evidence of a struggle. Someone in the process of receiving 12 blows from a sledgehammer, however, could be expected both to offer some degree of resistance and to attempt to evade the danger. These expected reactions, coupled with the inference that at some point Mr. Anthony's back was to Appellant, negate Appellant's claim that the evidence of a struggle necessarily supports self-defense, and also accounts for the fact that the blows did not crush Mr. Anthony's skull.

In addition, Appellant contends that the testimony of Detective Graeber indicating that the struggle began in the rear bedroom, and the fact that Appellant used the sledgehammer and not one of the other available weapons, both support those of his statements advancing his claims of self-defense and heat of passion. This conclusion is simply incorrect. The trial judge was not required to believe completely any one statement as his role was to sort through all of the evidence and arrive at a determination as to what actually happened. In so doing, the court concluded that "[t]his brutal attack by [Appellant] was absolutely unnecessary and in no way justified by any action taken by the victim." (Trial Ct. Op. at 6).

Appellant also contends that he acted under serious provocation, and, therefore, should only have been convicted of voluntary manslaughter. The test for a heat of passion defense used to reduce the degree of the offense is "whether a reasonable man, confronted with the same series of events would become impassioned to the extent that his mind would be incapable of cool reflection." Commonwealth v. Rivers, 383 Pa.Super. 409, 417, 557 A.2d 5, 9 (1989). Further, if sufficient provocation exists, the fact-finder must determine whether the defendant actually acted in the heat of passion. Id. The trial court was free to believe any or none of three different potentially provoking acts by Mr. Anthony that Appellant recited in his four different versions...