Commonwealth v. Brown

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered August 20, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0003971-2018

Joseph D. Seletyn, Esq. Prothonotary

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.^[*]

MEMORANDUM

STABILE, J.:

Appellant, Brandon Brown, appeals from the judgment of sentence imposed on August 20, 2020 in the Court of Common Pleas of Philadelphia County following his convictions of third-degree murder, 18 Pa.C.S.A. § 2502(c), and possessing instruments of crime ("PIC"), 18 Pa.C.S.A. § 907.^[1]Appellant challenges the sufficiency and weight of the evidence supporting his third-degree murder conviction and contends the trial court abused its

2

discretion by failing to consider certain sentencing factors. Following review, we affirm.

The trial court condensed the underlying facts of the case, in the light most favorable to the Commonwealth as verdict winner, as follows:

[O]n September 22, 2017, [Appellant] had an argument with Kenneth Carter in the lobby of 4445 Holden Street in Philadelphia. The fight was broken up, and [Appellant] got in an elevator and went up to an apartment, retrieved a knife and returned to stab Carter in the leg, then chased him out the door of the building prepared to stab him again. Carter collapsed and died of the stab wound in his leg, which had severed his femoral artery and vein

Trial Court Opinion, 2/24/20, at 3.

Our review reflects that Appellant was arrested on February 13, 2018, and was charged with murder and PIC. Following a two-day waiver trial in June 2019, Appellant was convicted of third-degree murder and PIC. A presentence investigation was completed. On August 20, 2020, the court sentenced Appellant to 20 to 40 years in prison for third-degree murder, plus five years' probation for PIC. Post-sentence motions were denied by operation of law on December 28, 2020. This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925(a).

Appellant presents the following issues for our consideration:

I. Was the evidence sufficient to sustain appellant's conviction for third-degree murder where the evidence failed to establish that appellant acted with malice when he fatally stabbed the decedent, who was the first aggressor in a fight once in the thigh

II. Was the verdict of third-degree murder also contrary to the clear weight of the evidence such as to shock one's sense of

3

justice where the evidence established that the killing was not intentional, the decedent initiated the fight, and the decedent tragically died from a single stab wound to the thigh, supporting at most a verdict of manslaughter

III. Did the trial court abuse its discretion in sentencing appellant to the maximum sentence possible under the law for third-degree murder where the court failed to consider the circumstances of the crime, appellant's remorse, or any individualized sentencing factor such as appellant's personal characteristics?

Appellant's Brief at 5.

In his first issue, Appellant argues insufficiency of evidence supporting his conviction of third-degree murder. As this Court recognized in Commonwealth v. Headley, 242 A.3d 940 (Pa. Super. 2020):

A challenge to the sufficiency of evidence presents a question of law, and as such, the standard of review is de novo and the scope of review is plenary. Commonwealth v. Weimer, 602 Pa. 33, 977 A.2d 1103, 1104-05 (2009). Additionally:

When presented with a claim that the evidence was insufficient to sustain a conviction, an appellate court, viewing all of the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, must determine whether the evidence was sufficient to enable the factfinder to find that all elements of the offense were established beyond a reasonable doubt.

Commonwealth v. Woody, 939 A.2d 359, 361 (Pa. Super. 2007) (citation omitted). "The Commonwealth may sustain its burden by proving the crime's elements with evidence which is entirely circumstantial and the trier of fact, who determines credibility of witnesses and the weight to give the evidence produced, is free to believe all, part, or none of the evidence." Id. at 361-62 (internal citation and quotation marks omitted). "As an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record." Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). "Additionally,

4

we may not reweigh the evidence or substitute our own judgment for that of the factfinder." Commonwealth v. Walker, 139 A.3d 225, 229 (Pa. Super. 2016).

Id. at 943-44 (cleaned up).

As reflected in above-quoted passage, this Court must determine whether the evidence was sufficient to enable the trial court, as factfinder, to conclude all elements of third-degree murder were established beyond a reasonable doubt. By definition, third-degree murder is any murder that is not first-degree murder (intentional killing) or second-degree murder (killing committed during perpetration of a felony). See 18 Pa.C.S.A. §2502(a)-(c). "To establish the offense of third degree murder, the Commonwealth need only prove beyond a reasonable doubt that the defendant killed an individual, with legal malice, 'i.e., . . . wickedness of disposition, hardness of heart, recklessness of consequences, or a mind lacking regard for social duty.'" Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011) (quoting Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa. Super. 1998), appeal denied, 739 A.2d 1056 (Pa. 1999) (additional citations omitted)). "[O]ur courts have consistently held that malice is present under circumstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017). Stated differently, unlike first-degree murder, which is an intentional killing, third-degree murder "is an intentional act,

5

characterized by malice, that results in death, intended or not." Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013). A factfinder may infer malice after considering the totality of the circumstances. Commonwealth v. Thomas, 656 A.2d 514, 516 (Pa. Super. 1995).

In its Rule 1925(a) opinion, the trial court reviewed the testimony presented at trial, explaining that officers patrolling the area near the Holden Street building were flagged down by persons who directed the officers to a grassy area near the building where Kenneth Carter was lying face down in a pool of blood. The officers transported Carter to a nearby hospital where he was pronounced dead. Trial Court Opinion, 2/24/21, at 5. An associate medical examiner testified that the cause of death was a stab wound to the left thigh, three to four inches deep, that severed Carter's femoral artery and vein, causing Carter to bleed out. Id.

The Commonwealth also presented the testimony of Detective Thorsten Lucke, a stipulated expert in video recovery and analysis, who prepared a video compilation of footage from eight different cameras at the Holden Street building. As the court recounted:

The video compilation begins with [Appellant] and another individual entering the building lobby, followed by [Carter]. An argument erupted in the lobby near the security desk where another individual separated [Appellant and Carter]. [Appellant] got into the elevator, getting off at an upper floor. During that ride, [Appellant] is pacing back and forth and removes the chain around his neck, presumably in preparation for the upcoming fight. [Appellant] is not seen in the elevator again but appears in just moments back on the ground floor. In the meantime, Carter has remained on the ground floor, pacing back and forth.

6

Surveillance video then catches Carter running through the lobby with a significant amount of blood gushing from his thigh, while further showing [Appellant] chasing Carter out the door, holding a large knife above his head in a position ready to stab again. [Appellant] chases [Carter] through the parking lot then stops and returns to the building. Carter had collapsed several feet from the lot, where he was later found by [the officers].

. . .

Not only was the evidence sufficient, it presented a textbook example of an individual acting with extreme disregard for human life. Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, [Appellant] had an argument with [Carter] in the lobby of 4445 Holden Street. The argument