Com. v. McBride, R. ( 2018 )

J-S65020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROGER J. MCBRIDE :
:
Appellant : No. 3494 EDA 2016
Appeal from the Judgment of Sentence October 19, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000523-2016
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MARCH 27, 2018
Roger J. McBride appeals from the judgment of sentence entered on
October 19, 2016, in the Delaware County Court of Common Pleas. On
September 12, 2016, the trial court convicted McBride of third-degree murder,
aggravated assault, recklessly endangering another person, and possession of
a weapon.1 The court sentenced McBride to an aggregate term of 14 to 28
years’ incarceration, followed by seven years’ probation. On appeal, McBride
challenges the sufficiency and weight of the evidence. After a thorough review
of the submissions by the parties, the certified record, and relevant law, we
affirm.
The trial court set forth the facts and procedural history as follows:
____________________________________________
1 18 Pa.C.S. §§ 2502(c), 2702(a)(1), 2705, and 3925(a), respectively.
J-S65020-17
On December 20, 2015, Lieutenant Joseph Pretti of the
Eddystone Borough Police Department, responded to a residence
at 1220 Saville Avenue in Eddystone, Delaware County,
Pennsylvania, after receiving a call for a shooting at that address.
When Lieutenant Pretti approached the residence, he was met by
the person who called 911, Paul McGonigle. Mr. McGonigle
advised Lieutenant Pretti that his friend who was shot, as well as
the shooter, were still inside the residence. When inside of the
residence, Lieutenant Pretti observed Roger McBride … seated at
the dining room table, as well as the body of a female, later
identified as Jami Vincent, lying on the floor with a gunshot wound
to the head.
On December 20, 2015, Paul McGonigle arrived at 1220
Saville Avenue at approximately 5:45 p.m., as he was supposed
to get together with his friends for dinner that evening. When Mr.
McGonigle arrived at the house, he sat downstairs on the couch,
waiting for his friends to get ready to go to dinner. While Mr.
McGonigle waited on the couch, one of the friends, Jack Mooney,
came downstairs to get shower supplies out of his bag. Mr.
McGonigle greeted Mr. Mooney, but did not pay too much
attention to what Mr. Mooney was doing as Mr. McGonigle was
reading the news on his phone at the time. Mc. McGonigle did
notice however, that Mr. Mooney removed a handgun from his bag
and placed it on the table as he proceeded to take out his clothing
from the bag. No one else was in the room with Mr. McGonigle
and Mr. Mooney at that time. A few minutes later, Mr. McGonigle
noticed [McBride] descend the stairs, and accordingly, he greeted
him. [McBride] offered Mr. McGonigle a drink to which Mr.
McGonigle declined. Within the next few minutes, Mr. McGonigle
noticed [McBride] re-enter the room and saw that he had the gun
in his hand. Mr. McGonigle noted that [McBride] commented that
he liked the gun, stating that he liked the weight and the feel.
Further, [McBride] kept switching the gun back and forth in his
hands from right to left. Moments later, Jami Vincent came
bouncing down the stairs, turned the corner into the living room
and stopped in front of [McBride]. Next, Mr. McGonigle saw
[McBride] extend his right arm and hold the handgun to Jami
Vincent’s head. Immediately thereafter, McGonigle heard a very
low pop, saw a small [f]lash of light, and saw Jami fall to the
ground. [McBride] in response started yelling, “oh my God, I
didn’t know it was loaded.” Mr. McGonigle stood up, saw blood on
the floor, before proceeding outside to call 911.
-2-
J-S65020-17
On Sunday, December 20, 2015, Jack Mooney, a Staff
Sergeant with the United States Army, was staying at Jami
Vincent’s home as a weekend guest. Mr. Mooney arrived to the
home on Friday evening, and brought his belongings into the
house, including his backpack that contained his handgun.
Additionally, on Friday evening, [McBride] brought a gun case out
of Mr. Mooney’s trunk into the house. Mr. Mooney had two
firearms in that case, in addition to the one that he had in his
backpack. Mr. Mooney showed each of the firearms to [McBride],
while the magazine was out of the gun, meaning that the firearm
was empty. After Mr. Mooney was handed back the gun, he put
the magazine back inside of it and put it in his backpack. Mr.
Mooney stated that on Sunday, December 20, 2015, he came
downstairs to grab his shower supplies out of the bag where the
handgun was located. Out of habit, Mr. Mooney stated that he
cleared the gun, to ensure that there was no round in the
chamber. Mr. Mooney further stated that he never keeps a round
in the chamber of his firearms. Mr. Mooney placed the handgun
on the coffee table, before heading back upstairs to shower.
On December 20, 2015, Detective Thomas Scarpato, Jr. was
employed by the Delaware County Criminal Investigation Division
in the homicide unit. On that evening, Detective Scarpato was
called out to 1220 Saville Avenue for a reported homicide. When
Detective Scarpato had arrived, the scene had already been
secured and the suspect was taken off of location. After obtaining
a search warrant, Detective Scarpato went back to 1220 Saville
Avenue, and collected a gun, fire cartridge, shell casing, projectile,
and a case containing other firearms, as evidence. Further,
Detective Scarpato also secured a search warrant for the person
of Roger McBride, and accordingly, [McBride] was swabbed and
pictures of him were taken. One of the pictures included a picture
of [him] showing blood splatter on his face. Next, Detective
Scarpato attempted to interview [McBride], but [McBride] invoked
his right to counsel. Detective Scarpato took notice of the strong
odor of alcohol emanating from [McBride]’s person.
Detective Louis Grandizio is employed by the Delaware
County Criminal Investigation Division as a firearms examiner1.
Detective Grandizo examined the handgun that was used to kill
Jami Vincent2. Detective Grandizo first determined that the gun
was operable. Next, Detective Grandizo tested for accidental
discharge and the gun passed the test, meaning that a person
would have to purposefully fire for it to go off. Additionally,
-3-
J-S65020-17
Detective Grandizio conducted the trigger pull test to ensure that
the gun required 7 pounds of pressure to pull the trigger, as the
manufacture specified in the design. Further, Detective Grandizio
examined the fire cartridge of the gun and examined the bullet
specimens from the firearm. Detective Grandizio also noted that
there was a blood-like substance on the frame of the gun.
_____________________
1 There was a stipulation by and between counsel that
Detective Grandizio is an expert in firearms examination,
identification, and ballistics.
2 Springfield A[r]mory, XD model, .45 caliber, automatic
with serial number of S3221610.
_____________________
…
[McBride] was arrested on December 20, 2015. A bench
trial was held in front of this Court on September 9, 2016, after
[McBride] waived his right to a jury. The Commonwealth
presented testimony from Paul McGonigle, Jack Mooney,
Lieutenant Joseph Petti, Detective Thomas Scarpato, and
Detective Louis Grandizio, all of whom testified to the facts as
stated above. As its final witness, the Commonwealth called Dr.
Frederick Neil Hellman, MD, the chief medical examiner for
Delaware County.3 Dr. Hellman testified that he made the
determination, based on a reasonable degree of medical certainty,
that the cause of death to Jami Vincent was a single gunshot
wound to the head, and that manner of death was homicide. The
Defense did not put up any witnesses or evidence.
This Court held its decision under advisement and gave
counsel for both sides the opportunity to submit any case law that
they wanted the court to review.4 On September 12, 2016, this
Court found [McBride] Guilty of Murder of the Third Degree5,
Aggravated Assault6, Recklessly Endangering Another Person7,
and Possession of a Weapon8.
_____________________
3 Counsel stipulated that Dr. Hellman is an expert in the
field of forensic pathology.
-4-
J-S65020-17
4 The Commonwealth argued that [McBride] was guilty of
Third Degree Murder, while counsel for [McBride] asserted
that the lesser charge of Involuntary Manslaughter should
have been applied under the circumstances surrounding
Jami Vincent’s death.
5 18 Pa. C.S. § 2502(c)
6 18 Pa. C.S. § 2702(a)(1)
7 18 Pa. C.S. § 2705
818 Pa. C.S. § 907(b)
_____________________
On October 19, 2016, after reading various letters and
listening to testimony from family and friends on behalf of both
the victim and [McBride], this Court sentenced [McBride] as
follows: Count 1: Murder in the Third Degree 168 to 336 months
SCI followed by 5 years consecutive probation; Count 3:
Aggravated Assault plus serious bodily injury, merged with Count
1 for sentencing purposes; Count 4: Reckless Endangering
Another Person 2 years’ probation consecutive to Count 1; Count
5: Possession of an Instrument of Crime 2 years’ probation to run
concurrent to Count 4.9
_____________________
9At the sentencing hearing, the Court noted on the record,
that the testimony of Jack Mooney was not considered
credible at all, and thus this Court believed that the gun was
loaded prior to the incident occurring.
_____________________
Trial Court Opinion, 12/22/2016, at 1-6 (record citations omitted). McBride
did not file post-sentence motions but did file this appeal.2
____________________________________________
2 The court did not order McBride to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless, he filed a
concise statement on October 27, 2016. On December 22, 2016, the trial
court issued an opinion under Pa.R.A.P. 1925(a).
-5-
J-S65020-17
In his first issue, McBride contends the evidence was insufficient to
support his third-degree murder conviction because the Commonwealth failed
to demonstrate that he acted with malice. See McBride’s Brief at 10.
Specifically, he argues: “[T]he evidence used by the Commonwealth to prove
malice was insufficient because it did not rise to the ‘magnitude of malice’
necessary for a third degree murder conviction. Instantly, a search of the
record reflects that the unfortunate killing in this case was accidental,
unintentional and without evil design.” McBride’s Brief at 12-13 (citations
omitted). He states the “record is devoid of even a scintilla of hatred,
wickedness or ill will”3 and points to the following: (1) he was a close friend
of the decedent and “was in complete utter shock when the weapon was
discharged;”4 (2) his friends testified he “was a ‘good guy’ and viewed the
incident as an accident;”5 (3) he aided his friend in dispatching 9-1-1 after the
shooting and cooperated with police; (4) his “first statement to police was that
‘it was an accident and he didn’t know [the gun] was loaded;’”6 and (5) he
“did not provide false and contradictory accounts of the events or attempt to
____________________________________________
3 McBride’s Brief at 13.
4 Id.
5 Id.
6 Id. at 13-14.
-6-
J-S65020-17
divert suspicion.”7 Moreover, McBride contends: “At most, the
Commonwealth established that [he] was guilty of involuntary manslaughter
since he caused the death of another person the unlawful act in a reckless or
grossly negligent manner.” Id. at 15. Lastly, he states the Commonwealth
did not establish he acted with a motive and there was “no competent
evidence that [he] intended to kill [the] decedent for any plausible reason.”
Id. at 16.
Our well-settled standard of review regarding sufficiency of the evidence
claims is as follows:
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.
____________________________________________
7 Id. at 14.
-7-
J-S65020-17
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted), appeal denied, 112 A.3d 651 (Pa. 2015).
Regarding third degree murder … the statute simply states, “All
other kinds of murder shall be murder of the third degree.” [18
Pa.C.S.] § 2502(c). Importantly, § 2502(c) does not set forth the
requisite mens rea for third degree murder; however, § 302(c) of
the Crimes Code provides, “When the culpability sufficient to
establish a material element of an offense is not prescribed by
law, such element is established if a person acts intentionally,
knowingly or recklessly with respect thereto.” Id., § 302(c)
(emphasis added).
Case law has further defined the elements of third degree murder,
holding:
[T]o convict a defendant of the offense of third[ ]degree
murder, the Commonwealth need only prove that the
defendant killed another person with malice aforethought.
This Court has long held that malice comprehends not only
a particular ill-will, but … [also a] wickedness of disposition,
hardness of heart, recklessness of consequences, and a
mind regardless of social duty, although a particular person
may not be intended to be injured.
Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363 (Pa.
2005) (alteration in original) (internal citation, quotation, and
emphasis omitted); see also Commonwealth v. Drum, 58 Pa.
9, 15 (1868) (defining malice as quoted above). This Court has
further noted:
[T]hird degree murder is not a homicide that the
Commonwealth must prove was committed with malice and
without a specific intent to kill. Instead, it is a homicide that
the Commonwealth must prove was committed with malice,
but one with respect to which the Commonwealth need not
prove, nor even address, the presence or absence of a
specific intent to kill. Indeed, to convict a defendant for
third degree murder, the jury need not consider whether the
defendant had a specific intent to kill, nor make any finding
with respect thereto.
-8-
J-S65020-17
Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 317
(Pa. 2001) (quoting Commonwealth v. Young, 748 A.2d 166,
174-75, 561 Pa. 34 (Pa. 1999)).
Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013), cert. denied, 134
S.Ct. 2314 (U.S. 2014).
Turning to the present matter, the trial court found the following:
[A]s third-degree murder requires a showing of malice
which can be inferred from the use of a deadly weapon on a vital
part of the victim’s body, there is sufficient evidence to prove that
[McBride] acted with the requisite malice. Evidence at trial
showed that Jami Vincent died from a single gunshot wound to the
head. Further, it is undisputed that [McBride] was the person who
held a gun to Jami Vincent’s head and pulled the trigger. As such,
under the law there is sufficient evidence to support [McBride]’s
third-degree murder conviction.
Trial Court Opinion, 12/22/2016, at 7.
Viewing all the evidence admitted at trial in the light most favorable to
the Commonwealth as the verdict winner, we agree with the trial court’s
conclusion. We note “[m]alice may be found where the defendant consciously
disregarded an unjustified and extremely high risk that his actions might cause
serious bodily injury.” Commonwealth v. Cottam, 616 A.2d 988, 1004 (Pa.
Super. 1992), appeal denied, 636 A.2d 632 (Pa. 1993). Moreover, “[m]alice
may be inferred from the use of a deadly weapon[8] on a vital part of the
____________________________________________
8 The Pennsylvania Crimes Code defines a “deadly weapon” as:
Any firearm, whether loaded or unloaded, or any device designed
as a weapon and capable of producing death or serious bodily
injury, or any other device or instrumentality which, in the manner
-9-
J-S65020-17
victim’s body. Further, malice may be inferred after considering the totality
of the circumstances.” Commonwealth v. Son Truong, 36 A.3d 592, 598
(Pa. Super. 2012) (citations and quotation marks omitted), appeal denied, 57
A.3d 70 (Pa. 2012). Here, as the court pointed out, the evidence at trial
clearly established McBride took Mooney’s .45 caliber handgun, raised it to
Vincent’s forehead, and then pulled the trigger. See N.T., 9/7/2016, at 20.
Vincent died as a result of McBride’s actions. As such, one can reasonably
infer malice where McBride used a deadly weapon on a vital part of Vincent’s
body. Furthermore, malice was established, as McBride acted with
“recklessness of consequences” and “a mind regardless of social duty” when
he decided not to check the gun to ensure that it was not loaded before he
aimed at the victim’s head and then fired the weapon. Santos, 876 A.2d at
363; see Commonwealth v. Seibert, 622 A.2d 361, 365 (Pa. Super. 1993)
(“An intentional act which indicates recklessness of consequences and a mind
regardless of social duty is sufficient, even if there was no intent to harm
another.”), appeal denied, 642 A.2d 485 (Pa. 1994).9 While McBride may
____________________________________________
in which it is used or intended to be used, is calculated or likely to
produce death or serious bodily injury.
18 Pa.C.S. § 2301.
9 See also Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981)
(upheld third-degree murder conviction, concluding that “there was sufficient
evidence to prove a malicious homicide beyond a reasonable doubt. Appellant
intentionally pointed a loaded gun at the victim and shot him in the chest.
- 10 -
J-S65020-17
have been friends with the victim, aided in seeking medical assistance after
the shooting, and did not demonstrate “hatred, wickedness or ill will,”10 his
actions did meet other categories included in malice. See id. Accordingly,
his sufficiency argument fails.
McBride’s second argument is a claim that the verdict rendered by the
jury was against the weight of the evidence. See McBride’s Brief at 17-19.
When considering a challenge to the weight of the evidence, we must
bear in mind:
A weight of the evidence claim concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor
of acquittal that a guilty verdict shocks one’s sense of justice.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations
omitted), cert. denied, 134 S.Ct. 1792 (U.S. 2014). Our review of a weight
claim is well-settled:
____________________________________________
Under these circumstances, whether the gun discharged accidentally or was
fired intentionally is irrelevant for the purpose of determining the existence of
malice. Even if, as appellant claims, he did not know that the gun was loaded
and intended only to ‘scare’ the victim, his conduct nevertheless unjustifiably
created an extremely high degree of risk, thereby evincing a wanton and
reckless disregard for human life. By intentionally aiming a gun at [the victim]
without knowing for a certainty that it was not loaded, appellant exhibited that
type of cruel and wanton conduct of which legal malice is made.”); Seibert,
supra (found circumstances established implied malice where defendant, not
knowing for certain whether the gun was loaded, held the weapon against the
victim and shot him; and this was not negated by the fact that the defendant
and the victim were friends and there was no animosity towards each other
on the night of the incident).
10 McBride’s Brief at 13.
- 11 -
J-S65020-17
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.
However, the exercise of discretion by the trial court in granting
or denying a motion for a new trial based on a challenge to the
weight of the evidence is not unfettered. The propriety of the
exercise of discretion in such an instance may be assessed by the
appellate process when it is apparent that there was an abuse of
that discretion.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal
citations omitted).
Here, McBride’s weight claim has been waived because he failed to raise
this issue prior to sentencing or in a timely post-sentence motion. See
Pa.R.Crim.P. 607(A) (“A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a new trial: (1)
orally, on the record, at any time before sentencing; (2) by written motion at
any time before sentencing; or (3) in a post-sentence motion.”) (emphasis
added).11 See also Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa.
Super. 2003) (providing that a weight of the evidence claim “must be
presented to the trial court while it exercises jurisdiction over a matter since
____________________________________________
11 It merits mention that in his brief, McBride did not point to where in the
record he preserved the claim.
- 12 -
J-S65020-17
[a]ppellate 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.”) (citations and quotation marks omitted).
Therefore, this claim is waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/18
- 13 -