The opinion
J-S48002-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUISE K. GINN :
:
Appellant : No. 301 EDA 2024
Appeal from the Judgment of Sentence Entered January 12, 2024
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0001784-2022
BEFORE: STABILE, J., NICHOLS, J., and BENDER, P.J.E.
MEMORANDUM BY STABILE, J.: FILED APRIL 10, 2025
Appellant, Marquise K. Ginn, seeks review of the judgment of sentence
entered by the Court of Common Pleas of Philadelphia County (trial court).
Following a jury trial, Appellant was found guilty of third-degree murder (18
Pa.C.S.A. § 2502(c)), and possession of an instrument of crime (18 Pa.C.S.A.
§ 907) (PIC). He was then sentenced to a prison term of 20 to 40 years on
the murder count, followed by one year of probation, and a consecutive term
of 2.5 to 5 years on the PIC count. In this appeal, Appellant contends that
the evidence of guilt was legally insufficient; the verdict was against the
weight of the evidence; the sentence was manifestly excessive and imposed
by the trial court without regard for mitigating factors; and evidence of “target
sheets” was erroneously admitted at trial. We affirm.
This case began on the evening of September 4, 2021. That night,
Appellant and his pregnant girlfriend, Essance Allen, got into an argument
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while eating dinner at a restaurant. After their meal, the couple went to
Appellant’s home in Philadelphia. At the time, Appellant lived with his mother,
Tawanna Ginn.
The next morning, Appellant and Allen started arguing again soon after
waking up. Allen became upset, and after speaking with Ginn, and Ginn’s
boyfriend (Lynwood Wilford), Allen called her friend, Cassandra Holland (the
victim in this case), to pick her up.
The victim and her daughter then drove to Appellant’s house. The victim
was in the driver’s seat and her daughter sat in the front passenger’s seat.
The victim and Appellant began arguing soon after she arrived at Appellant’s
house. While they argued, Allen entered the victim’s car, sitting in the back
passenger’s seat. The victim then drove away, continuing to argue with
Appellant.
However, the victim drove for only a block or so before putting her
vehicle in reverse and then driving backward to Appellant’s house. Her vehicle
came to a stop in front of the house adjacent to Appellant’s home. Appellant
and the victim resumed arguing, and the confrontation escalated when the
victim and her daughter exited the vehicle while armed with baseball bats.
The victim had taken only a step or two, from the driver’s seat to the
back bumper of her car, when, from about 15 to 20 feet away, Appellant stood
up on his porch, drew a firearm, and opened fire in the victim’s direction. The
victim dropped to the ground after the first two shots were fired.
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Nevertheless, as his mother and Wilford tried to restrain him, Appellant walked
down from his porch toward the victim, continuing to discharge his weapon.
In all, Appellant shot eight rounds at the victim, striking her seven
times. She sustained gunshot wounds in her face, chest, and back. Two of
the bullets entered the victim’s back. Emergency responders transported her
to a nearby hospital, where she succumbed to her injuries shortly after arrival.
Appellant was arrested about 100 miles away from his home, when he
was pulled over for a traffic violation. He was later charged with several
offenses stemming from the shooting, including first-degree murder, third-
degree murder, voluntary manslaughter, and PIC. At the jury trial, the
Commonwealth presented the testimony of eyewitnesses to the encounter
between Appellant and the victim, establishing the above facts. Appellant’s
theory of innocence was that he shot the victim in self-defense, believing that
the use of lethal force was necessary to protect himself from an imminent
attack by the victim and her daughter.
Of significance to this appeal, the Commonwealth presented the
testimony of a crime scene unit investigator who had taken photographs of
the inside of Appellant’s home. Two of those photographs showed “target
sheets,” or shooting targets, affixed to the door of an upstairs bedroom and a
bedroom wall, both of which were riddled with bullet holes. The shooting
target in the bedroom had handwritten notes in the top left corner, making
warnings such as, “Think twice this could be your face,” and “I’ll kill you if you
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rob my house!!!” Only Appellant and his mother lived in the home, and the
target sheets were presumed to belong to Appellant.
Defense counsel objected to the admission of the photos on the ground
that they were irrelevant and highly prejudicial. The Commonwealth
countered that the photos were relevant to prove Appellant’s specific intent to
kill, which is a necessary element of first-degree murder. The trial court
overruled defense counsel’s objection, and the shooting targets were admitted
into evidence.
The jury found Appellant not guilty of first-degree murder and voluntary
manslaughter, but guilty of third-degree murder and PIC. A presentence
investigation report (PSI report) was prepared; as was a mental health report.
The trial court sentenced Appellant as outlined above in an amended
sentencing order entered on January 12, 2024.1 Appellant filed a post-
sentence motion, contending that the third-degree murder conviction was
against the weight of the evidence; that the trial court abused its discretion in
imposing the maximum sentence possible and in failing to consider mitigating
evidence; and that the trial court failed to adequately state on the record why
consecutive sentences on the two counts were proper despite Appellant’s prior
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1 The original sentencing order was entered on October 13, 2023. There were
two differences in the orders. First, on the PIC count, the maximum term was
reduced in the amended order from six to five years. Second, on the third-
degree murder count, a one-year period of probation was made consecutive
to the 20 to 40 year prison term.
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record score of zero. The post sentence motion was denied, and Appellant
timely appealed.
The trial court directed Appellant to file a 1925(b) statement of issues,
and Appellant complied. In his 1925(b) statement, Appellant asserted that
the verdict on the murder count was against the weight of the evidence, and
that the evidence was insufficient to sustain the verdict on that count. As to
both his weight and sufficiency challenges, Appellant stated that the
Commonwealth’s witnesses were not credible, and that the physical evidence
did not establish that Appellant acted with the requisite intent commit third-
degree murder. As to the sentence, Appellant stated that the trial court erred
in failing to state on the record “the reasons for an aggravated sentence in
this case of 22 ½ to 45 years, by failing to sentence on weighing factors on a
qualitative and quantitative basis.” 1925(b) Statement, 7/8/2024, at paras.
1-2. The trial court then entered an opinion comporting with Pa.R.A.P.
1925(a), giving the reasons why the judgment of sentence should be upheld.
See Trial Court 1925(a) Opinion, 7/18/2024, at 3-10.
In his brief, Appellant now raises the following issues for our
consideration:
1. Did the trial [court] err as a matter of law by allowing a verdict
of third-degree murder to stand which was against the weight and
sufficiency of evidence?
2. Did the trial [court]abuse his discretion by imposing a
manifestly excessive sentence, when both sentences were
consecutive and the trial judge failed to adequately consider any
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mitigation in the sentencing hearing including family support and
letters, job history, no prior record, and his remorse.
3. Did the trial [court] abuse his discretion by allowing the
Commonwealth (over defense counsel's objection) to admit
evidence of photos depicting a bedroom with target sheets, in
violation of Pennsylvania Rule of Evidence 404(b), or in the
alternative the photos should still have been excluded because the
prejudice introduced by those photos outweighed their probative
value?
Appellant’s Brief, at 9 (suggested answers omitted).
Appellant’s first claim is that the verdict on the third-degree murder
count was against the weight of the evidence because it was proven that
Appellant shot the victim in self-defense, and not out of malice. See
Appellant’s Brief, at 15-16.
When a post-sentence motion for a new trial has been filed, the role of
the trial court is to “determine that ‘notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or given them equal weight
with all the facts is to deny justice.’” Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013) (quoting Commonwealth v. Widmer, 744 A.2d 745, 752
(Pa. 2000)). “[A] new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and the award of
a new trial is imperative so that right may be given another opportunity to
prevail.” Id. (quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.
1994)).
On review of a trial court’s denial of a weight of the evidence claim, an
appellate court must consider not “the underlying question of whether the
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verdict is against the weight of the evidence,” but rather whether the trial
court abused its discretion. Id. (quoting Widmer, 744 A.2d at 753). “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.
(quoting Widmer, 744 A.2d at 753)). An abuse of discretion in this context
means “where the course pursued [by the trial court] represents not merely
an error in judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows the action is a result
of partiality, prejudice, bias or ill-will.” Id. (quoting Widmer, 744 A.2d at
753).
Here, the trial court found that the verdict was not against the weight
of the evidence, and we discern no basis on which that ruling should be
disturbed. The evidence presented at trial established that the victim had
approached Appellant holding a baseball bat from about 15 to 20 feet away.
Appellant then shot her seven times, with some of those rounds being
discharged at close range, and into her back, while she was already
incapacitated. The central issue before the jury was whether, or to what
extent, Appellant had justifiably acted in self-defense. The jury evidently
rejected Appellant’s defense after hearing the evidence. We find no indication
in the record that the trial court abused its discretion in denying the weight of
evidence claim in Appellant’s post-sentence motion.
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Appellant’s next claim is that the evidence of third-degree murder was
legally insufficient. As with his weight of the evidence claim, Appellant argues
that the Commonwealth failed to prove beyond a reasonable doubt that he
shot the victim with the requisite intent, or “malice,” necessary to sustain the
conviction. See Appellant’s Brief, at 16-17.
Evidence is sufficient to sustain a conviction if it establishes each
element of the charged crime beyond a reasonable doubt. See
Commonwealth v. Fisher, 47 A.3d 155, 157 (Pa. Super. 2012). The
Commonwealth may carry its burden of proof with wholly circumstantial
evidence. See Commonwealth v. Storey, 167 A.3d 750, 757 (Pa. Super.
2017).
When considering a sufficiency of the evidence claim, the reviewing
court must construe the evidence in the light most favorable to the
Commonwealth as the verdict winner, with all reasonable inferences drawn in
that party’s favor. See Fisher, 47 A.3d at 157. The Commonwealth’s
evidence of guilt need not preclude every possibility of innocence. See
Storey, 167 A.3d at 757. The fact-finder is free to believe all, part, or none
of the evidence. See Commonwealth v. Frein, 206 A.3d 1049, 1063 (Pa.
2019). A reviewing court does not “reweigh the evidence and substitute its
judgment for that of the fact-finder.” Commonwealth v. Mitchell, 902 A.2d
430, 449 (Pa. 2006).
Third-degree murder encompasses all forms of murder that do not
constitute an intentional killing or a killing committed during the commission
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of a felony. See 18 Pa.C.S. § 2505(c); see also Commonwealth v.
MacArthur, 629 A.2d 166, 167 (Pa. Super. 1993). The intent element of
third-degree murder is that the defendant acted with “malice” during the
commission of the killing. See Commonwealth v. Jones, 271 A.3d 452,
458 (Pa. Super. 2021). “Malice includes not only particular ill[-]will toward
the victim, but also wickedness of disposition, hardness of heart, wantonness,
and cruelty, recklessness of consequences, and conscious disregard by the
defendant of an unjustified and extremely high risk that his actions may cause
serious bodily harm.” Id. The use of a deadly weapon upon a vital part of
the victim’s body may allow the factfinder to infer that the defendant acted
with malice. See Commonwealth v. Lee, 626 A.2d 1238, 1241 (Pa. Super.
1993).
A killing may be justified where the defendant “reasonably believed he
was in imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such harm.”
Commonwealth v. Sepulveda, 55 A.3de 1108, 1124-25 (Pa. 2012). This
defense may only apply where the defendant did not provoke the difficulty
which culminated in the killing, and the defendant did not violate a duty to
retreat. See id.; see also 18 Pa.C.S.A. § 505.
“A defense of ‘imperfect self-defense’ exists where the defendant
actually, but unreasonably, believed that deadly force was necessary.”
Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 2012); 18
Pa.C.S.A. § 2503(b). The Commonwealth may disprove a theory of self-
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defense by establishing that the defendant “used more force than reasonably
necessary to protect against death or serious bodily injury.” Commonwealth
v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014).
Here, the jury found that Appellant killed the victim with malice,
necessarily rejecting Appellant’s justification for the shooting. Appellant
opened fire on the victim when she was 15 to 20 feet away, and while
Appellant was sitting on the porch of his home. The victim was incapacitated
after the first two shots, and Appellant continued shooting as he stepped off
of his porch and walked toward her. The victim was shot seven times,
sustaining fatal injuries to her face, chest, back, arm, and finger. The victim
was shot multiple times at close range in her back, as she was laying on the
ground.
Appellant asserted that he was acting in self-defense and that the
victim’s approach with a baseball bat gave him reason to think his life was in
danger. This raised an issue of credibility for the jury to resolve in light of the
surrounding circumstances of the incident. The jury ultimately found that
Appellant acted with malice, and the evidence would support the conclusion
that Appellant used more force than was necessary to protect himself. Thus,
the evidence of Appellant’s criminal intent was legally sufficient, and he is not
entitled to relief on his sufficiency claim.
With respect to his sentence, Appellant claims that the trial court abused
its discretion by imposing consecutive terms, and by ignoring mitigating
evidence, such as his prior record score of zero; consistent employment
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history; support from friends and family members; and remorse. See
Appellant’s Brief, at 17-19. As Appellant’s claim involves a challenge to the
discretionary aspects of his sentence, he was required to preserve the claim
for appellate review by complying with the requirements of Pa.R.A.P. 2119(f).
A defendant “is not entitled to the review of challenges to the
discretionary aspects of [his] sentence as of right.” Commonwealth v.
Samuel, 102 A.3d 1001, 1006 (Pa. Super. 2014). Under Pa.R.A.P. 2119(f),
the party challenging a discretionary aspect of a sentence must invoke this
Court’s authority to review the claim by including in the brief a section setting
forth “a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
Where the appellant fails to include this section, and the Commonwealth
objects to that deficiency, the sentencing claim is waived. See
Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008).2
Here, Appellant has failed to include in his brief a separate section that
comports with Pa.R.A.P. 2119(f), and the Commonwealth has objected to the
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2 In addition, the appellant has the burden of satisfying a four-part test to
invoke this Court’s jurisdiction to review the discretionary aspects of a
sentence. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
The appellant must timely file a notice of appeal, preserve the issue at
sentence, submit a brief that comports with Pa.R.A.P. 2119, and establish that
there is a “substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.” Id. A substantial question may be
found where a colorable argument has been advanced that the “sentence
imposed is either inconsistent with a specific provision of the Sentencing Code
or is contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa.
Super. 2010).
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omission of the required statement. The sentencing issues raised in
Appellant’s brief are therefore waived.
Even if the claims were not waived, their lack of substantive merit would
preclude Appellant from obtaining relief. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion by the sentencing court.
Commonwealth v. Pollard, 832 A.2d 517, 525 (Pa. Super. 2003). An abuse
of discretion is not merely an error in judgment; rather, it exists only where
the record reflects “that the judgment exercised was manifestly unreasonable,
or the result of partiality, bias[,] or ill-will.” Id.
In fashioning an individualized sentence, courts are directed to consider
“the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Weighing these factors is
within the province of the sentencing court, and an appellate court cannot
substitute its own judgment in weighing those factors. See Commonwealth
v. Walls, 926 A.2d 957, 966 (Pa. 2007).
The trial court is afforded “discretion to impose its sentence concurrently
or consecutively to other sentences being imposed[.]” Commonwealth v.
Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010) (quoting “42
Pa.C.S.A. § 9721). A defendant is not entitled to a “volume discount” because
he committed crimes in quick succession. See Commonwealth v. Zirkle,
107 A.3d 127, 134 (Pa. Super. 2014) (quoting Commonwealth v. Johnson,
96 A.2d 877, 880 (Pa. Super. 2008)).
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In the present case, the evidence established that Appellant shot and
killed the victim on a residential street. The shooting occurred in view of the
victim’s daughter and close family friend. The circumstances of the shooting
did not suggest that Appellant was in any immediate danger, or that the use
of lethal force was necessary to protect himself. The victim was shot in the
back multiple times at close range, after she had already been incapacitated.
On these facts, we cannot find that the trial court abused its discretion in
imposing sentences on the two subject counts consecutively.
Appellant’s claim that the trial court failed to consider mitigating factors
is equally meritless. “When imposing 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).
Where a PSI report has been produced, as there was in the present case, this
Court will presume that the sentencing court knew of it and appropriately
weighed “all relevant information” about the defendant’s character, in addition
to “statutory mitigating factors.” Commonwealth v. Pollard, 832 A.2d 517,
526 (Pa. Super. 2003); see also Commonwealth v. Moury, 992 A.2d 162,
171 (Pa. Super. 2010) (same). A sentence that falls within the standard range
guidelines will be viewed as appropriate under the Sentencing Code. See
Moury, 992 A.2d at 171.
At the sentencing in the instant case, the trial court explicitly stated on
the record that it had read and considered the PSI report, as well as a mental
health report. See N.T. Sentencing, 10/13/2022, at 34-37. Appellant does
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not cite to portions of the record that would rebut the presumption that the
trial court appropriately weighed and considered all relevant sentencing
factors.
To the extent that Appellant argues specifically that the trial court failed
to consider his “remorse,” when imposing sentence, the claim is refuted by
the record. See Appellant’s Brief, at 18-19. It is true that the trial court noted
Appellant’s lack of remorse when imposing the sentence, and that during his
allocution, Appellant ostensibly apologized to the victim’s family and took
responsibility for his actions.
However, Appellant also stressed in his allocation that the incident took
place in a different manner than the evidence suggested, and that he wished
the shooting had been recorded. See N.T. Sentencing, 10/13/2023, at 31-
34. This was consistent with the contents of the mental health report, in which
it was documented that Appellant had felt significant stress due to being
convicted “for something that didn’t happen. Id., at 27.
The showing of remorse was clearly qualified by Appellant’s reservations
about whether the evidence had proven his guilt as to the murder offense. In
that context, it was not inaccurate for the trial court to mention Appellant’s
lack of remorse as a sentencing factor. A court, in its discretion may consider
a defendant’s “display of remorse, defiance, or indifference” when imposing a
sentence. Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012)
(quoting Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.
1998)). Thus, the record reflects that the trial court properly considered all
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relevant sentencing factors, and that it did not abuse its discretion at
sentencing. Thus, Appellant’s challenge to the discretionary aspects of the
sentence has no merit.
Appellant’s final claim is that the trial court abused its discretion by
admitting into evidence photographs of shooting targets police found in his
home. See Appellant’s Brief, at 19-21. This claim was not included in
Appellant’s 1925(b) statement of errors complained of on appeal, and the trial
court did not address the issue in its 1925(a) opinion. Accordingly, the issue
of the photos’ admission at trial was not preserved for purposes of appellate
review, and the claim was waived, precluding our consideration of the claim’s
merits. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.”); Commonwealth v. Baker, 24 A.3d 1006, 1034, 35 (Pa.
Super. 2011). Thus, the order on review must be upheld.
Judgment of sentence affirmed.
Date: 4/10/2025
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