Com. v. Clancy, J. ( 2014 )

J.S20041/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
JAVONN ERIC CLANCY, :
:
Appellant : No. 1594 WDA 2013
Appeal from the Judgment of Sentence May 29, 2013
In the Court of Common Pleas of Beaver County
Criminal Division No(s).: CP-04-CR-0001902-2012
BEFORE: GANTMAN, P.J., DONOHUE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 29, 2014
Appellant, Javonn Eric Clancy, appeals from the judgment of sentence
entered in the Beaver County Court of Common Pleas following his
conviction for first degree murder1 and firearms not to be carried without a
license.2 Appellant challenges the weight and sufficiency of the evidence to
sustain his convictions. We affirm.
The trial court summarized the facts of this case as follows:
Evidence and testimony presented during trial revealed
that, shortly before noon on July 30, 2012, [Appellant] and
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 6106(a)(1).
J. S20041/14
Dyquane Norman as well as several other witnesses to this
incident were present at the Linmar Terrace community
center . . . . Upon leaving the community center,
[Appellant], Norman, and several other individuals walked
to the 300 block of Linmar Terrace to relax. Approximately
15 to 20 minutes later, [Marquay Lavar] Riggins
[Decedent] approached Norman with the intention of
discussing and settling a dispute involving an alleged
While they were resolving their dispute, [Appellant]
approached [Decedent] and Norman, cut between them,
and began to insult [Decedent. Decedent] responded to
d asking him
what the problem was. At that point, [Appellant] punched
[Decedent], and [Decedent] knocked [Appellant] to the
ground and began hitting him. After grappling with
[Appellant] on the ground for several seconds, [Decedent]
was pulled off of [Appellant] by Norman, Devay Owens,
and Tyquale Owens. Once [Appellant] and [Decedent]
were separated, [Appellant] pulled a gun from his clothing
and fired multiple shots at [Decedent. Decedent]
attempted to run from [Appellant] but was shot three
times in the back. [Decedent] collapsed in the street
nearby, and [Appellant] fled the scene. After fleeing
Linmar Terrace, [Appellant] was seen running into a
nearby wooded area and in downtown Aliquippa. Once
[Decedent] collapsed, Norman and Devay Owens called
911, and the fire department and medic rescue arrived to
render assistance to [Decedent]. Ultimately, however,
[Decedent] died as a result of the gunshot wounds.
On that same date of July 30, 2012, Detective Sergeant
Steve Roberts of the Aliquippa Police Department issued a
warrant for his arrest. Despite attempts to secure
apprehension until September 4, 2012, when [he] turned
himself in to authorities. . . .
Trial Ct. Op., 8/28/13, at 4-5 (citations to record omitted).
-2-
J. S20041/14
At trial, Dr. James Smith was qualified as an expert in forensic
pathology. N.T., 4/11/13, at 58. He performed an autopsy on Decedent
which involved an external and internal examination. Id. at 59. The
external examination revealed three gunshot wounds. Id. Dr. Smith
testified, inter alia, as follows regarding the cause of death:
A: In this particular case the fatal wound went into the
back, very close to the spinal column. It passed through
the large muscles of the back and entered the left chest
cavity, just, just barely over to the left of the midline.
It actually missed the left lung, but it went through the
aorta, and the aorta is the primary vessel that, through
which blood leaves the heart and goes to the rest of the
standpoint.
Then the bullet passed through the heart, primarily the
right side of the heart, the right ventricle, and then it
exited the, exited the body just to the left of the sternum
or the breastbone . . . .
* * *
Q: And what was in your opinion the cause of death?
A: This was blood loss primarily from the bullet going
through the aorta.
Id. at 61-62.
Following a jury trial, Appellant was convicted of first degree murder
and carrying a firearm without a license. He was sentenced to an aggregate
-3-
J. S20041/14
term of life imprisonment. Post-sentence motions were filed3 and denied.
This timely appeal followed. Appellant filed a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal contemporaneously with his notice of
appeal and the trial court filed a responsive opinion.
Appellant raises the following issues on appeal:
I. Whether the Commonwealth failed to present
sufficient evidence to prove beyond a reasonable doubt
that Appellant . . . possessed the malice required to
support a conviction for First-Degree Murder?
II. Was the jury verdict of guilty against the weight of
the evidence presented at trial?
First, Appellant argues the evidence was insufficient to convict him of
under a sudden passion brought about by [De
Id. at 15-16. Appellant
Id. at 16. He concedes that he killed
Decedent, but avers that the Commonwealth did not establish the requisite
3
deadline to file a post-sentence motion, the tenth day thereafter, was
Saturday, June 8, 2013. See Pa.R.Crim.P. 720(A)(1). He filed his post-
sentence motion on Monday, June 10, 2013 and it was therefore timely.
See 1 Pa.C.S. § 1908 (providing that when last day of any period of time
referred to in any statute falls on Saturday, Sunday, or legal holiday, such
day shall be omitted from computation).
-4-
J. S20041/14
such a finding, as his actions were the result of a sudden and intense
passion brought about by the provocation of [D Id.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. . . .
* * *
When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt. . . .
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)
(citations and quotation marks omitted).
Section 2502(a) of the Crimes Code defines first degree murder:
(a) Murder of the first degree.
constitutes murder of the first degree when it is committed
by an intentional killing.
18 Pa.C.S. § 2502(a).
Our Pennsylvania Supreme Court has stated:
To establish the offense of first-degree murder, the
Commonwealth must prove the fact of the killing, the
-5-
J. S20041/14
kill on the part of the defendant. Further, specific intent to
kill can be inferred from the use of a deadly weapon upon
sment, the
evidence is viewed in the light most favorable to the
Commonwealth, as the verdict winner.
Commonwealth v. Moore, 937 A.2d 1062, 1067 (Pa. 2007) (citations
omitted). In Moore, the Supreme Court found the evidence was sufficient
to support the first degree murder conviction. Id. The Court opined:
The manner in which the victim was killed (two
gunshot wounds to his back, one of which
penetrated his heart) constitutes circumstantial
evidence of malice and specific intent to kill on [the
defenda
conduct on [his] part, including his flight . . . evidence his
consciousness of guilt.
Id.period of premeditation; indeed, the design to kill can be formulated in a
Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa.
2013), cert. denied, 134 S.Ct. 1275 (2014).
to enable the jury to find that all of the elements of first-degree murder,
including the specific intent to kill, were established beyond a reasonable
Commonwealth failed to prove the requisite elements of first degree murder
because he lacked the malice required for such a finding is of no merit.
back, one of which pierced his aorta; therefore, malice may be inferred.
-6-
J. S20041/14
See Moore, 937 A.2d at 1067.
happened moments after the fight affords no relief, as an intent to kill may
See Jordan, 65 A.2d at 323.
Appellant fled after the shooting, evidencing consciousness of guilt. See
Moore, 937 A.2d at 1067. We find no relief is due. See Ratsamy, 934
A.2d at 1235-36; Widmer, 744 A.2d at 751.
Next, Appellant claims that he is entitled to a new trial because the
d by the
4
Appellant only claims the verdict for first degree murder was against the
weight of the evidence in the argument section of his brief. See
Brief at 16-17. He raises virtually the same argument as he does for the
sufficiency of the evidence:
The record reflects that at the time of the killing, . . .
Appellant experienced substantial provocation by
[Decedent], namely being severely beaten in front of his
peers. Likewise, even after the fight had ultimately
concluded, [Decedent] continued to berate . . . Appellant,
even using a racial slur. Appellant himself admitted at trial
that following this series of events he was overcome with
an uncontrollable anger and ultimately lost control and
began shooting. The weight of the evidence as to
by same weighs heavily against First-Degree Murder.
4
Appellant preserved this issue in his post-sentence motion. See Mot. for
Post Sentence Relief, 6/11/13, at 2 (unpaginated).
-7-
J. S20041/14
Moreover, as stated at trial, it is difficult to fathom that
. . . Appellant would have planned the killing in advance. .
..
Id. at 17.
Our Supreme Court has held that
[a] motion for a new trial alleging that the verdict was
against the weight of the evidence is addressed to the
discretion of the trial court. An appellate court, therefore,
reviews the exercise of discretion, not the underlying
question whether the verdict is against the weight of the
evidence. The factfinder is free to believe all, part, or
none of the evidence and to determine the credibility of
the witnesses. The trial court will award a new trial only
standard has been met, appellate review is limited to
whether the trial jud
and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of
new trial based on a weight of the evidence claim is the
least assailable of its rulings.
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations
omitted).
Appellant],
whose account of the shooting greatly differed from the accounts of the
The trial
weight of the evidence. Id. at 13.
-8-
J. S20041/14
Appellant asks this Court to reweigh the evidence and find the
evidence that inculpated him was not credible. This we cannot do. See
Ramtahal
contrary to the evidence as to shoc See id. We
discern no abuse of discretion by the trial court. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
-9-