The opinion
J-S31010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON BROWN :
:
Appellant : No. 183 EDA 2021
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
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 16, 2021
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
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant purports to appeal from the December 28, 2020 order, which
denied his post-sentence motion by operation of law. “In a criminal action,
appeal properly lies from the judgment of sentence made final by the denial
of post-sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408,
410 n.2 (Pa. Super. 2001) (en banc) (citation omitted), appeal denied, 800
A.2d 932 (Pa. 2002). We have corrected the caption accordingly.
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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
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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,
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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,
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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.
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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 onlv 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 was broken up and [Appellant] got in the elevator, went
to an upper floor, obtained a knife, raced down the stairs, stabbed
Carter in the leg so hard that it penetrated three to four inches,
severing both the femoral artery and vein and then chased the
severely bleeding man out the door, wielding the knife above his
head, ready to fatally attack again until he saw [] Carter collapse
and only then, when this victim was bleeding out did he return to
the apartment building—not rendering aid or calling for
assistance—letting Carter die of the wounds [Appellant] had
inflicted. The evidence was not only sufficient but substantial and
compelling and accordingly this claim is without merit.
Id. at 5-7 (reference to notes of testimony omitted).
Having viewed all available evidence2 in a light most favorable to the
Commonwealth as verdict winner, we conclude that the evidence was
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2 We acknowledge we did not have the benefit of reviewing Detective Lucke’s
surveillance video compilation. However, we did have the benefit of reviewing
the trial transcripts, including the narrative by Detective Lucke, who compiled
the video shown to the trial court and testified as to what was depicted in the
video as it was being shown. Appellant does not challenge the accuracy or
veracity of Detective Lucke’s narrative and, in fact, Appellant cites the notes
of testimony setting forth Detective Lucke’s narrative. See Appellant’s Brief
at 8.
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sufficient to enable the trial judge, as a factfinder, to find that Appellant
committed an intentional act, with malice, that resulted in death. The
elements of third-degree murder were established beyond a reasonable doubt.
Therefore, Appellant’s sufficiency challenge fails.
In his second issue, Appellant contends the verdict was against the
weight of the evidence. In Commonwealth v. Widmer, 744 A.2d 745 (Pa.
2000), our Supreme Court explained:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Id. at 753 (citations omitted). Further, “[g]enerally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based thereon pure
conjecture, these types of claims are not cognizable on appellate review.”
Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004)
(quoting Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa. Super. 1989)).
Appellant contends that “because he clearly did not intend to kill the
victim when he stabbed him once in the leg during a mutual fight, the court’s
verdict in the instant case is so contrary to the clear weight of evidence as to
shock one’s sense of justice.” Appellant’s Brief at 21. Initially, we note that
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Appellant misapprehends the elements of third-degree murder. Third-degree
murder does not involve an intent to kill. Intent to kill is an element of first-
degree, not third-degree, murder. Rather, as noted above, third-degree
involves “an intentional act, characterized by malice, that results in death,
intended or not.” Fisher, 80 A.3d at 1191.
The trial court “reviewed the entire record, including a thorough reading
of the trial transcripts and admitted exhibits,” and concluded “that the verdict
was not so contrary to the evidence as to shock one’s sense of justice, nor
was it so tenuous, vague and uncertain that it shocks the conscience of the
court.” Trial Court Opinion, 2/24/21, at 9. The court determined that “the
evidence in the case was compelling and substantial, and strongly supported
the verdict.” Id. Based on our own review, we discern no abuse of discretion
in the trial court’s conclusion. Appellant’s weight of the evidence claim fails.
In his third issue, Appellant claims his sentence of 20 to 40 years in
prison for third-degree murder is excessive. As such, Appellant presents a
challenge to the discretionary aspects of sentencing for which our standard of
review is abuse of discretion. Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007). As this Court explained in Commonwealth v. Moury, 992 A.2d
162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
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at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal
citations omitted).
Id. at 170. Appellant filed a timely notice of appeal, preserved the issue in
his post-sentence motion, and included a Rule 2119(f) statement in his
appellate brief. Therefore, we must determine whether Appellant has
presented a substantial question for our review.
In Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015) (en
banc), this Court reiterated:
In determining whether a substantial question exists, this Court
does not examine the merits of whether the sentence is actually
excessive. Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence, when it is
within the guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question determination does not
require the court to decide the merits of whether the sentence is
clearly unreasonable.
Id. at 770 (quoting Commonwealth v. Dodge, 77 A.3d 1263, 1279 (Pa.
Super. 2018), appeal denied, 91 A.3d 161 (Pa. 2014)). “The determination
of what constitutes a substantial question must be evaluated on a case-by-
case basis.” Moury, 992 A.2d at 170 (citation omitted). “A substantial
question exists only when the appellant advances a colorable argument that
the sentencing judge’s actions were either: (1) inconsistent with a specific
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provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Id. (internal citation and quotation
marks omitted).
Here, Appellant asserts the trial court imposed “an unduly harsh
sentence without consideration for the circumstances of the crime, appellant’s
remorse, his tragic childhood, or his severe mental health issues.” Appellant’s
Brief at 25. “Insofar as Appellant claims the sentence is disproportionate to
the offense and the trial court failed to consider mitigating factors, Appellant
has raised a substantial question.” Commonwealth v. DiClaudio, 210 A.3d
1070, 1075 (Pa. Super. 2019) (citing Caldwell, 117 A.3d at 770). We find
that Appellant has arguably presented a substantial question. Therefore, we
shall review his sentencing claim.
As this Court recognized in Moury:
“When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005),
cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902
(2005). “In particular, the court should refer to the defendant’s
prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. Where the sentencing court had
the benefit of a presentence investigation report (“PSI”), we can
assume the sentencing court “was aware of relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”
Commonwealth v. Devers, 519 Pa. 88, 101–02, 546 A.2d 12,
18 (1988). Further, where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code. See Commonwealth v.
Cruz-Centeno, 447 Pa. Super. 98, 668 A.2d 536 (1995), appeal
denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating combination
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of PSI and standard range sentence, absent more, cannot be
considered excessive or unreasonable).
Moury, 992 A.2d at 171 (citation omitted).
As reflected in the record, the trial court had the benefit of a PSI, as well
as a mental health evaluation, sentencing memoranda prepared by the
parties, letters on behalf of Appellant, and letters addressing the impact on
the victim’s family. Trial Court Opinion, 2/24/21, at 10. The trial court noted
an offense gravity score of fourteen and a prior record score of five.
“The deadly weapon matrix recommends a guideline minimum range of two
hundred and ten months to the statutory limit of two hundred and forty
months.” Id. The court considered Appellant’s background, character, and
rehabilitative needs, along with the PSI, which detailed the relevant
information regard these factors, and imposed a sentence within the
guidelines. Id. at 11. We find no abuse of discretion in the court’s imposition
of a sentence of 20 to 40 years in prison for third-degree murder. Appellant’s
sentencing claim fails.
Finding no merit in Appellant’s issues, we shall affirm his judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2021
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