Com. v. Seibert

• Decision Date: 24 March 1993
• Citation: 424 Pa.Super. 242,622 A.2d 361
• Parties: COMMONWEALTH of Pennsylvania v. David SEIBERT, Appellant.
• Court: Pennsylvania Superior Court

Page 361

622 A.2d 361

424 Pa.Super. 242

COMMONWEALTH of Pennsylvania v. David SEIBERT, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 7, 1993.

Filed March 24, 1993.

Brian McMonagle, Philadelphia, for appellant.

Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com. appellee.

Before CIRILLO, BECK and KELLY, JJ.

CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

Following a bench trial before the Honorable William J. Mazzola, appellant David Seibert was convicted of third-degree murder, recklessly endangering another person, and possession of controlled substances with intent to deliver. Post-trial motions were filed and denied. Seibert was sentenced to five to ten years imprisonment on the murder conviction, a concurrent term of one to two years imprisonment on the reckless endangerment conviction, and a concurrent term of seven years probation on the possession with intent to deliver conviction. Seibert filed a motion for reconsideration of sentence claiming his sentence was excessive and exceeded the guidelines. The motion was denied and this appeal followed. Seibert raises the following issues for our review:

1. Whether there is insufficient evidence of malice to sustain the third-degree murder conviction?

2. Whether the sentence of 7 years probation for a violation of 35 Pa.S. § 780-113(a)(3) is in excess of the five year maximum sentence authorized by 35 Pa.S. § 780-113(f)(2) and 42 Pa.C.S. § 9754, and must therefore be vacated?

3. Whether the imposition of a five-year mandatory sentence for an unintentional killing violates the intent of the legislature in enacting 42 Pa.C.S. § 9712 of the mandatory minimum sentencing act?

4. Whether there is insufficient evidence to sustain appellant's conviction of recklessly endangering another person?

5. Whether there is insufficient evidence to sustain appellant's conviction of possession with the intent to deliver marijuana?

6. Whether appellant was denied a fair trial because of the impartiality of the factfinder?

First, we note that issue four, five, and six were not raised in post-trial motions. These claims, therefore, are waived. See Pa.R.Crim.P. 1123(a); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Further, the record indicates that after filing his appeal, Seibert was ordered to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Seibert failed to comply with this directive.

Seibert's first issue, concerning the sufficiency of the evidence of malice to sustain a conviction for third-degree murder, was properly raised in post-trial motions and has been preserved for appeal. Pa.R.Crim.P. 1123(a). In this claim, Seibert argues that the evidence was insufficient to establish malice, a necessary element of third-degree murder. The well-established standard for reviewing a sufficiency claim on appeal is

whether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.... The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence.... Moreover, in applying the above test, the entire trial 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 to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Griscavage, 512 Pa. 540, 543 517 A.2d 1256, 1257 (1986) (quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979) (citations omitted)). The facts and circumstances established by the Commonwealth "need not be absolutely incompatible with [the] defendant's innocence, but the question of any doubt is for the [fact finder] unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) (quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

Seibert, then twenty-six years old, spent the evening of November 17, 1990 entertaining the teenage victim and four other youths, including Michael Sola, Robert Robinson, and Lisa Gold. During the evening, Seibert supplied his guests with beer, Valium and marijuana. Seibert also brandished a gun during the evening, repeatedly removing and replacing the ammunition clip, passing the gun around the room, and pointing it at his guests after having been asked not to do so. This went on for approximately fifteen minutes. Ultimately, Seibert's destructive behavior led to the death of his friend, Keith Marigliano.

After placing the gun on a shelf in the living room and leaving it for a couple of hours, Seibert retrieved the gun, walked over to the victim, placed the gun at the victim's head, and shot him. Sola testified to these events, stating: "[The defendant] had the gun pointed to Keith's head and then I looked at them and I thought they were playing around and I just turned my head and the whole room flashed and I heard a pop." Robinson also testified that he heard a shot and saw a flash of light. He then heard Seibert say: "I shot him. I can't believe I shot him."

Lisa Gold testified that she was seated on the victim's lap at the time and that Seibert walked up to the victim and shot him in the head. Lisa Gold's testimony also established that after the shooting, Seibert and his girlfriend were devising a plan to explain the victim's death--that two intruders had broken into the apartment and killed the victim.

After the shooting, the front desk of Seibert's apartment building was notified. Mr. George Alden, a security guard, was sent to Seibert's apartment. Seibert answered the door and then telephoned for medical assistance. Mr. Alden testified that when asked what had occurred, Seibert responded that two intruders broke into his apartment and shot his friend.

The police arrived a short time later. Following a search of Seibert's apartment, the officers recovered a semi-automatic handgun, a starter pistol, which was found on the roof of the apartment, a spent casing behind the chair on which the victim lay dead, as well as marijuana and valium. The officers spoke with Seibert, Lisa Gold and Seibert's girlfriend and were told that Seibert was in the bathroom when two intruders broke into the apartment and shot the victim.

At trial, David Seibert testified that he "lied when the cops came" because he was "scared to death." He also testified that when he went to the bathroom, the gun was "under the couch ... with the clip out of it." When Seibert came out of the bathroom, he went over to the victim because the gun was in the victim's chair. Seibert reached for the gun at the same time the victim did and the gun "was in both of our hands and I was standing over him and as I came through the gun went off ... I just grabbed the gun and it went off.... I called the ambulance right away. I didn't know what to do."

Dr. Paul J. Hoyer, Assistant Medical Examiner of Philadelphia, testified that the victim died as a result of a gunshot wound to the left side of the forehead. Dr. Hoyer stated that his examination revealed that the gun was held to the skin, but not pressed against it, when the gun was fired.

After hearing this testimony, the trial court found Seibert guilty of third-degree murder, recklessly endangering another person, and possession of controlled substances with intent to deliver (marijuana and valium). The court found Seibert's actions constituted implied malice, sufficient to support a conviction of third-degree murder.

Third-degree murder is defined in the Crimes Code as "All other kinds of murder" other than first-degree murder or second-degree murder. 18 Pa.C.S. § 2502(c). The elements of the third-degree murder, as developed by case law, are a killing done with legal malice but without the specific intent to kill required in first-degree murder. See Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). "Malice express or implied is the criteria and absolutely the essential ingredient of murder." Commonwealth v. Commander, 436 Pa. 532, 537, 260 A.2d 773, 776 (1970). The traditional definition of malice was set forth in Commonwealth v. Drum, 58 Pa. 9 (1868):

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 (emphasis added). See also Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977); Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975). Under the Crimes Code, 18 Pa.C.S. § 101 et seq., the offense of third-degree murder incorporates common law malice as an element. 18 Pa.C.S. §§ 2501, 2502(c). Malice is the distinguishing factor between murder and the lesser degrees of homicide. See Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975). Chief Justice Nix explained:

[B]etween the recklessness or culpable negligence necessary to support the charge of involuntary manslaughter, see Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971), and the specific intent to kill which is a prerequisite of murder of the first degree, there is a class of wanton and reckless conduct which manifests such...