Commonwealth v. Golphin

161 A.3d 1009

COMMONWEALTH of Pennsylvania

v.Edward GOLPHIN, Appellant

No. 1351 EDA 2016

Superior Court of Pennsylvania.

Submitted April 10, 2017

Filed May 8, 2017

Mitchell S. Strutin, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Alison J. Guest, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following Appellant's conviction by a jury on the charges of third-degree murder, conspiracy, aggravated assault, and endangering the welfare of a child ("EWOC").¹ After a careful review, we affirm.

Following the death of the four-year-old victim, S.B., Appellant was arrested, and he proceeded to a jury trial at which he was represented by counsel.² The Honorable Genece Brinkley has summarized in detail the testimony presented at trial, and her factual findings are supported by the record. Trial Court Opinion, filed 9/2/16, at 3–29. Thus, we set forth only those background facts necessary for an understanding of this appeal.

The evidence reveals that Josephita Brown and her two children, Sean B. and S.B., lived with her paramour, Appellant. At some point, six-year-old Sean B. reported to his grandmother that Appellant had hit him, and thereafter, his grandmother gained custody of him. Id. at 4–5. However, S.B. continued to live with Josephita and Appellant, who subsequently had a child of their own, A.B. Id. at 5

In May of 2013, S.B. suffered a broken leg, and Josephita provided inconsistent statements as to how the fracture occurred. Id. at 5–6. S.B.'s daycare provider noticed that S.B. also had several deep lacerations to her back, and Josephita provided inconsistent statements as to how the injuries occurred. Id. at 6, 14–15. The Department of Human Services received a report of abuse concerning S.B. in June of 2013, and they put into place a safety plan, which required Appellant's cousin to supervise Josephita's and Appellant's interactions with S.B. Id. at 6.

During the early morning hours of July 16, 2013, Josephita took an unresponsive S.B. to the Children's Hospital of Philadelphia ("CHOP"), where S.B. was pronounced dead. Id. at 10. A subsequent autopsy revealed that S.B. died as a result of internal blood loss caused by a laceration to her liver. Id. at 19. At the time of her death, S.B. had additional new and pre-existing injuries, including scars, scrapes, bruises, scratches, bite marks, a fractured tibia, a tear to her small bowel mesentery, 11 fractured ribs, and a ruptured eardrum. Id. at 19–23.

Upon questioning, Josephita informed the police that she observed Appellant punching and kicking S.B. during the late evening hours of July 15, 2013, and he then left the house. Id. at 9. Upon his return, Appellant began beating S.B. again, and Josephita could hear S.B.'s screams and noticed that she had an adult bite mark on her lower lip. Id. at 10. Appellant again left the house, at which time S.B. was no longer breathing. Id. When Appellant later returned, Josephita told him that S.B. was dead, and Appellant took them to CHOP. Id. Josephita admitted to police that S.B. had broken her leg in March of 2013 when Appellant pushed her down a flight of stairs. Id. at 9. She also admitted that S.B.'s back lacerations resulted from Appellant beating her with a belt buckle. Id.

At the conclusion of trial, on February 2, 2016, the jury found Appellant guilty of the offenses indicated supra, and on April 8, 2016, the trial court sentenced Appellant to 20 to 40 years in prison for third-degree murder, 20 to 40 years in prison for conspiracy, 10 to 20 years in prison for aggravated assault, and 2½ to 5 years in prison for EWOC. The trial court imposed the sentences consecutively, resulting in an aggregate sentence of 52½ years to 105 years in prison. Appellant did not file a post-sentence motion; however, represented by new counsel, Appellant filed this timely appeal on April 28, 2016. All Pa.R.A.P. 1925 requirements have been met.

Appellant presents the following issues for our review:

I. Is Appellant entitled to an arrest of judgment with regard to his convictions for third-degree murder, criminal conspiracy, aggravated assault, and [EWOC] since the evidence is insufficient to sustain these convictions as the Commonwealth failed to prove Appellant's guilt of these crimes beyond a reasonable doubt?

II. Is Appellant entitled to a new trial as a result of the trial court's pretrial ruling that granted the Commonwealth's motion to admit evidence of other crimes and/or bad acts?

III. Is Appellant entitled to a new trial as a result of the trial court's pretrial ruling that granted the Commonwealth's motion to admit the prior statements of [Sean] B.?

IV. Is Appellant entitled to a new trial as a result of the trial court's failure to grant Appellant's challenges for cause to prospective jurors number twelve and forty-two?

V. Is Appellant entitled to a new trial as a result of the trial court's restriction on Appellant's cross-examination of Commonwealth witness Tracey Cobb concerning a false allegation of rape made by [co-conspirator] Josephita Brown?

VI. Is Appellant entitled to a new trial as a result of the trial court's denial of Appellant's motion for a mistrial after the prosecutor commented on redirect examination of Commonwealth witness Dr. Lawrence Dobrin that she had to address "some of the irrelevancies we were just subjected to for the past 20 minutes"?

VII. Is Appellant entitled to be resentenced since the sentences imposed for aggravated assault and [EWOC] merged with the sentence imposed for third-degree murder?

Appellant's Brief at 5–6.

In his first issue, Appellant challenges the sufficiency of the evidence supporting his convictions. Specifically, Appellant contends the evidence was insufficient to prove that (1) Appellant had the requisite mens rea for third-degree murder, (2) Appellant entered into an agreement with Josephita to commit third-degree murder as is required for conspiracy, and (3) Appellant was S.B.'s guardian, supervised S.B., or otherwise violated any duty of care as required for EWOC.³

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Further, in viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, the court must give the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014) (citation and quotation omitted).

Third-degree murder is defined [as] all other kinds of murder other than first degree murder or second degree murder. The elements of third-degree murder, as developed by case law, are a killing done with legal malice.

Malice exists where there is a particular ill-will, and also where there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.

Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa.Super. 2009) (en banc ) (quotations and quotation marks omitted). "Malice is established where an actor consciously disregard[s] an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011) (quotation and quotation marks omitted). "Malice may be inferred by considering the totality of the circumstances." Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super. 2011) (citation omitted).

To convict a defendant of conspiracy, the trier of fact must find that: (1) the defendant intended to commit or aid in the commission of the criminal act; (2) the defendant entered into an agreement with another (a "co-conspirator") to engage in the crime; and (3) the defendant or one or more of the other co-conspirators committed an overt act in furtherance of the agreed upon crime. 18 Pa.C.S.[A.] § 903. The essence of a criminal conspiracy, which is what distinguishes this crime from accomplice liability, is the agreement made between the co-conspirators.

"[M]ere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient" to establish that a defendant was part of a conspiratorial agreement to commit the crime. There needs to be some additional proof that the defendant intended to commit the crime along with his co-conspirator. Direct evidence of the defendant's criminal intent or the conspiratorial agreement, however, is rarely available. Consequently, the defendant's intent as well as the agreement is almost always proven through circumstantial evidence, such as by "the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators." Once

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