Com. v. Yanoff

• Decision Date: 12 February 1997
• Citation: 690 A.2d 260,456 Pa.Super. 222
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Mark Patrick YANOFF, Appellant.
• Court: Pennsylvania Superior Court

Page 260

690 A.2d 260

456 Pa.Super. 222

COMMONWEALTH of Pennsylvania, Appellee, v. Mark Patrick YANOFF, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 13, 1996.

Filed Feb. 12, 1997.

Thomas R. Ceraso, Greensburg, for appellant.

Bradley K. Hellein, Assistant District Attorney, Kittanning, for Commonwealth, appellee.

Before HUDOCK, FORD ELLIOTT and HESTER, JJ.

HUDOCK, Judge.

This is an appeal from the judgment of sentence after Appellant was convicted by a jury of murder of the third degree and aggravated assault. ¹ Post-trial motions were denied and Appellant was sentenced to 117 months to 240 months imprisonment. As part of the sentence, the trial court ordered Appellant to make restitution to the parents of the victim in the amount of $6,396.00 for funeral expenses incurred, and to the Bureau of Laboratory and Communication Services (Bureau) in the amount of $1,607.15. Appellant filed a post-sentence motion to modify sentence. The trial court entered an amended order modifying the parole. This timely appeal followed. For the reasons set forth below, we affirm as to all issues save the restitution order regarding the Bureau.

The facts and procedural history may be summarized as follows: On August 2, 1994, Appellant and Kirk Commodore (victim), along with Appellant's son and another individual, began the day fishing near Iron Bridge in Ford City. The foursome then went to Paradise Beach also near Ford City. After this excursion, Appellant dropped off his son and the fourth companion and proceeded with the victim to two bars.

While at the second bar, Appellant noticed the Ford City Chief of Police, Jan Lysakowski (the Chief). The Chief was approaching Appellant when the victim stopped and spoke with him briefly. The Chief then approached Appellant and they proceeded outside the bar to talk. During this conversation, Appellant mentioned the victim's possible involvement in various drug activities in Ford City.

Appellant then rejoined the victim inside the bar. The victim became upset with Appellant and inquired as to the content of the conversation between Appellant and the Chief and whether Appellant mentioned his name. Appellant denied ever discussing the victim with the Chief.

Appellant and the victim then played several rounds of pool. Later, Appellant told the victim that he wanted to fish with his son again. Appellant and the victim arrived at Appellant's house. Appellant's wife informed him that his son could not go fishing. Appellant then retrieved his nine millimeter semi-automatic handgun and left the house with the victim.

Appellant and the victim began to proceed back to Iron Bridge. On the way, the victim directed Appellant to navigate down a narrow wooded lane and park the car.

Appellant claimed that he parked the car and, as he was turning off the engine, the victim began to strike him. Appellant stated that he exited the car and was pursued by the victim. Appellant warned the victim that he had a pistol. Appellant testified that the victim responded that he was not afraid of firearms. Appellant then fired four rounds from the weapon in the opposite direction from the victim's voice.

Appellant testified that the victim then tackled him from behind and began hitting him in the back of the neck with a can of beer. According to Appellant, the victim began biting him on the ear and face, including his nose. They both struggled over the gun. The victim stood up and stated that he was going to smash Appellant's face with a rock and kill him. The victim then attempted to run away from Appellant. Appellant pointed the gun toward the victim and fired four rounds into his back.

The victim was not killed instantly. Appellant attempted to transport the victim to a hospital, however, the victim resisted and began to struggle with Appellant. Appellant was eventually able to place the victim in his car and transport him to the Ford City Hospital. The victim later died from the gunshot wounds.

A Pennsylvania State Trooper, Mark Ponosby (Ponosby), interviewed Appellant at the hospital shortly after the shooting. After being advised of his Miranda rights, Appellant stated that the victim was running away from him when he fired the weapon. Ponosby testified at trial that Appellant stated that the victim was approximately fifteen to twenty feet away when he fired the gun, that he saw the victim fall down after these shots were fired, and that Appellant was in close proximity to his car when he shot the victim.

Appellant raises the following issues on appeal:

A. Whether a new trial should be granted where the evidence presented by the Commonwealth was insufficient to support a conviction for third degree murder as an inference of malice was negated by the Commonwealth's evidence.

B. Whether the trial court erred in limiting counsel for Appellant from developing evidence of Appellant's knowledge of disruptive or violent acts done by the victim when presenting a self-defense argument.

C. Whether the trial court erred in failing to modify its sentence that Appellant make restitution to the parents of the victim and the [Bureau].

D. Whether the trial court committed a manifest abuse of discretion in failing to modify its sentence of no less than one hundred [ ] seventeen months nor more than two hundred [ ] forty months where the court focused entirely on the criminal act found by the jury and ignored the undisputed mitigating factors presented to the court, and where the Commonwealth did not request the mandatory minimum sentence.

Appellant's Brief at p. 4. We will review Appellant's issues in the order in which they appear.

We first note that if we find merit to Appellant's sufficiency claim, the proper remedy is discharge, not a new trial as requested by Appellant.

We have held that in reviewing the sufficiency of the evidence in a criminal case, the test:

is whether, viewing all evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Torres, 396 Pa.Super. 499, 501, 578 A.2d 1323, 1324 (1990) (citations omitted). In addition, "[i]t is the prerogative of the fact-finder to believe all, part, or none of the evidence presented." Commonwealth v. Blassingale, 398 Pa.Super. 379, 388, 581 A.2d 183, 187 (1990) (citing Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920 (1989)).

We have stated that a person may be convicted of third-degree murder where the murder "is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice aforethought." Commonwealth v. Pigg, 391 Pa.Super. 418, 425, 571 A.2d 438, 441, alloc. den., 525 Pa. 644, 581 A.2d 571 (1990). "Malice is the essential element or gravamen of third degree murder, the distinguishing factor between murder and manslaughter." Stidham v. Millvale Sportsmen's Club, 421 Pa.Super. 548, 559, 618 A.2d 945, 951 (1992).

We have defined malice 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." Pigg, 571 A.2d at 441 (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). "In addition, malice may be inferred from the use of a deadly weapon upon a vital part of the body." Stidham, 618 A.2d at 951 (citing Pigg, 571 A.2d at 441). Malice "may also exist where the principal acts in gross deviation from the standard of reasonable care, failing to perceive that such actions might create a substantial and unjustifiable risk of death or serious bodily injury." Stidham, 618 A.2d at 951 (citing In Interest of Smith, 396 Pa.Super. 624, 637, 579 A.2d 889, 895 (1990)).

This Court has held that "where an accused raises the defense of self-defense under [section 505 of the Pennsylvania Crimes Code], the burden is on the Commonwealth to prove beyond a reasonable doubt that the homicide was not a justifiable act of self-defense." Commonwealth v. McClain, 402 Pa.Super. 636, 642, 587 A.2d 798, 801, alloc. den., 528 Pa. 636, 598 A.2d 993 (1991) (emphasis in original) (citing Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506 (1980)). See also Commonwealth v. Miller, 430 Pa.Super. 297, 303-05, 634 A.2d 614, 617 (1993), alloc. den., 538 Pa. 622, 646 A.2d 1177 (1994). The Commonwealth, however, sustains this burden if "it establishes at least one of the following: 1) the accused did not reasonably believe that he was in danger of death or serious bodily injury; or 2) the accused provoked the use of force; or 3) the accused had a duty to retreat and the retreat was possible with complete safety." McClain, 587 A.2d at 801 (emphasis in original) (citing Commonwealth v. Stonehouse, 521 Pa. 41, 59, 555 A.2d 772, 781 (1989)). We have also held that "[a]lthough the Commonwealth is required to disprove a claim of self-defense arising from any source beyond a reasonable doubt, a jury is not required to believe the testimony of the defendant who raises the claim." Miller, 634 A.2d at 617.

Appellant argues that the Commonwealth failed to disprove his claim of self-defense beyond a reasonable doubt. Appellant states that he received multiple abrasions and bite marks on his face and body which indicated a struggle with the victim. In addition, Appellant contends that he fired his weapon only after the victim threatened to kill him.

We cannot accept Appellant's argument. Ponosby testified that Appellant told him that the victim was fifteen to twenty feet away from him when he fired the shots. In addition, Ponosby testified that Appellant stated the victim was not running toward him but, rather, was running away from him as he fired his gun. Finally, Ponosby testified that at all times during the struggle and the discharge of the weapon, ...