Com. v. Glenn, M. ( 2020 )

J-S71023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARLON GLENN :
:
Appellant : No. 2438 EDA 2018
Appeal from the Judgment of Sentence Entered March 16, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004532-2017
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: Filed: February 7, 2020
Marlon Glenn (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of voluntary manslaughter, possession of
an instrument of crime (PIC), firearms not to be carried without a license,
carrying firearms on a public street or public property in Philadelphia, and two
counts of theft by unlawful taking.1 We affirm.
On May 30, 2017, Appellant was charged in connection with the murder
of Ramone Anthony Smith (Smith). See Trial Court Opinion, 11/16/18, at 2-
3. The trial court recounted the evidence as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia police officers Andrew Miller, Terrance Lewis, Terry
Tull, Earl Tilghman, and Kelly Walker, Philadelphia police
detectives Joseph Centeno and James Burke, Philadelphia
____________________________________________
1 18 Pa.C.S.A. §§ 2503(a)(1), 907(a), 6106(a)(1), 6108, and 3921(a).
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associate medical examiner Dr. Lindsay Simon, and Lerin Gilliard,
David Westin, Von Williams, Margie Lazenbury, Carole Moore,
Dennis Moore Jr., and Cameron Davis. [Appellant] presented no
evidence. Viewed in the light most favorable to the
Commonwealth as the verdict winner, the evidence established
the following.
After work on Friday, March 3, 2017, Ramone Anthony
Smith, the victim, drove his co-worker, Lerin Gilliard, to her home,
but first stopped to pick up [Appellant]. After dropping off Gilliard,
Smith and [Appellant] arrived at Smith’s house on the 4800 block
of Bouvier Street in Philadelphia. Smith and [Appellant] had been
friends for several months and were also engaged in a sexual
relationship, which had been limited to Smith performing oral sex
on [Appellant]. [Appellant], however, did not identify as
homosexual, and he lived and shared a bedroom with a woman.
Sometime after 9:00 p.m., [Appellant] was in Smith’s
basement working out. Smith walked over to [Appellant] and
began to straddle him, which made [Appellant] upset. The two
men got into a struggle during which [Appellant] grabbed Smith’s
gun from a holster on Smith. The men proceeded upstairs into
the kitchen, where [Appellant], using Smith’s gun, shot Smith one
time in the back of the head.
Because Smith did not answer his phone after 9 p.m. on
Friday, all day Saturday, and Sunday morning, Smith’s friends,
Cameron Davis and David Westin, grew concerned because they
typically spoke with him every day. On Sunday, March 5, 2017,
Davis and Westin went to Smith’s house and noticed that Smith’s
Toyota Camry was missing. The friends entered Smith’s house
using a spare key that Smith had given them and they discovered
the house was in “complete disarray” and looked “ransacked.” In
the living room, couch pillows were on the floor, and Smith’s
television was missing. In the dining room, papers were scattered
across the table. In the middle upstairs bedroom, which Smith
had converted to a walk-in closet because he loved to shop and
had a large collection of wallets, watches and shoes, many of
Smith’s things were gone. Westin found Smith’s dead body in the
kitchen with a pool of dry blood surrounding his head. The medical
examiner determined that the cause of death was a gunshot
wound to the back of the head.
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Philadelphia police detectives then conducted an
investigation of the shooting. When police arrived at Smith’s
house, Davis and Westin gave detectives a photo of [Appellant],
whom they believed was at Smith’s house on that Friday night.
Police were able to identify [Appellant] and discovered his last
known address was the 200 block of North 61st Street. Officers
also recovered Smith’s FitBit and cell phone, and an analysis of
the FitBit showed that Smith stopped moving at 9:42 p.m. on
March 3, 2017.
Officers also learned of Smith’s car’s vehicle identification
number [] and placed it in stolen status. The next day, March 6,
2017, police located Smith’s car on the 100 block of North
Robinson Street, which is located approximately a block and a half
away from [Appellant’s] residence. Shortly after initiating
surveillance on the vehicle, [Appellant] arrived. Wearing blue
rubber surgical gloves, [Appellant] connected jumper cables to
Smith’s car. He also went inside the front of Smith’s vehicle.
Officers then approached [Appellant], handcuffed him, and
transported him to the Homicide Unit on 8th and Race Streets.
At Homicide, [Appellant] was placed in an interview room
and waived his Miranda[2] rights. However, he later requested a
lawyer, so detectives immediately ended their questioning. The
next day, March 7, 2017, [Appellant] asked to resume speaking
with Detective James Burns and again waived his Miranda rights.
During questioning [Appellant] wrote “private” on a piece of
paper, crossed it out after Detective Burns saw it, and then asked
to use the bathroom. While Detective Burns and [Appellant] were
out of the interview room, [Appellant] confessed to killing Smith
and told him the events that led to Smith’s death. Although
[Appellant] indicated that he would repeat his confession on
camera, [Appellant] refused to do so once he and Detective Burns
re-entered the interview room. Instead, he claimed that what he
told Detective Burns was merely a hypothetical.
While [Appellant] was at the Homicide Unit, detectives
executed a search warrant on [Appellant’s] residence, and
recovered items, including wallets, watches and shoes, which
were later identified by Davis and Williams as items belonging to
Smith. In addition, after police cleared the crime scene, Von
____________________________________________
2 Miranda v. Arizona, 86 S. Ct. 1602 (U.S. 1966).
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Williams, Smith’s close family friend, went to Smith’s house to
clean the residence. On a shelf in the kitchen near where Smith’s
body was found, Williams found a 9 [millimeter] Ruger fired
cartridge casing. Police recovered Smith’s gun sometime in May
2017, when it was confiscated from Kyvon Jenkins in Abington
Township. Jenkins lived in the West Philadelphia area,
approximately one mile away from where [Appellant] resided.
Ballistics testing showed that the fired cartridge casing found near
Smith’s body matched Smith’s gun.
Trial Court Opinion, 11/16/18, at 2-5 (citations to notes of testimony omitted,
footnote added).
On December 27, 2017, a jury rendered their guilty verdicts. On March
16, 2018, the trial court sentenced Appellant to an aggregate 21 to 42 years
of incarceration. Appellant filed a timely post-sentence motion, which the trial
court denied on July 10, 2018. Appellant filed a timely notice of appeal. Both
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant raises two issues for our review:
1. Is [] Appellant entitled to an arrest of judgment on the verdict
of voluntary manslaughter, PIC and VUFA, where the verdict was
not supported by sufficient evidence?
2. Did the Trial Court err in denying Post Sentence Motion for New
Trial and is [] Appellant entitled to a new trial as the verdict was
not supported by the greater weight of the evidence?
Appellant’s Brief at 3.3
____________________________________________
3 Appellant’s Rule 1925(b) statement raises an additional discretionary
aspects of sentencing claim. See Rule 1925(b) Statement, 8/29/18, at
2. However, because Appellant abandoned this claim in his brief, we will not
address it. See Appellant’s Brief at 3; see also Commonwealth v. Briggs,
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Initially, we observe that although Appellant purports to challenge the
sufficiency of the evidence as to his convictions of PIC, firearms not to be
carried without a license, and carrying a firearm in public in Philadelphia, the
argument section of his brief does not refer specifically to any of these
offenses nor does Appellant address any elements of those crimes. See
Appellant’s Brief at 9-12. Consequently, Appellant has waived these claims.
See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (claim
of insufficient evidence for multiple convictions was underdeveloped, did not
set forth elements of the crimes, did not argue which specific element was not
met, and was thus waived); Commonwealth v. Plante, 914 A.2d 916, 924
(Pa. Super. 2006) (“We have repeatedly held that failure to develop an
argument with citation to, and analysis of, relevant authority waives the issue
on review.”). We therefore limit our review to Appellant’s challenge to the
sufficiency of the evidence as it relates to his voluntary manslaughter
conviction.
Our standard of review is well-settled:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record “in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.”
Commonwealth v. Widmer, [ ] 744 A.2d 745, 751 ([Pa.] 2000).
“Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.”
____________________________________________
12 A.3d 291, 310 n.19 (Pa. 2011), cert. denied, 132 S. Ct. 267 (2011)
(refusing to address claim appellant raised with trial court but subsequently
abandoned in brief).
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Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super.
2005).
Nevertheless, “the Commonwealth need not establish guilt to a
mathematical certainty.” Id.; see also Commonwealth v.
Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts
and circumstances established by the Commonwealth need not be
absolutely incompatible with the defendant’s innocence”). Any
doubt about the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances. See Commonwealth v. DiStefano,
782 A.2d 574, 582 (Pa. Super. 2001).
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. See Brewer, 876 A.2d at 1032.
Accordingly, “[t]he fact that the evidence establishing a
defendant’s participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled with the
reasonable inferences drawn therefrom overcomes the
presumption of innocence.” Id. (quoting Commonwealth v.
Murphy, 795 A.2d 1025, 1038–39 (Pa. Super. 2002)).
Significantly, we may not substitute our judgment for that of the
fact finder; thus, so long as the evidence adduced, accepted in the
light most favorable to the Commonwealth, demonstrates the
respective elements of a defendant’s crimes beyond a reasonable
doubt, the appellant’s convictions will be upheld. See Brewer,
876 A.2d at 1032.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013) (citing
Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013)).
Appellant argues that the evidence was insufficient to support his
conviction of voluntary manslaughter because “no one saw” him shoot Smith.
Appellant’s Brief at 11. Appellant asserts that the Commonwealth failed to
prove that he “fired the shot that entered the victim’s head, which killed him,”
id. at 9, and claims “[t]here is nothing in the record which would refute the
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possibility of a third party having entered the home, shot the victim and
retreated to safety.” Id. at 10.
The Pennsylvania Crimes Code provides that voluntary manslaughter
occurs: (1) where the defendant acted under a sudden and intense passion
resulting from a serious provocation; or (2) where the defendant knowingly
and intentionally killed an individual under the unreasonable belief that the
killing was justified. 18 Pa.C.S.A. § 2503(a), (b).
Appellant’s sufficiency argument is belied by the record. After reviewing
the notes of testimony, we have determined that The Honorable Glenn B.
Bronson, sitting as the trial court, has capably and accurately addressed
Appellant’s sufficiency argument. See Trial Court Opinion, 11/16/18, at 5-9;
see also id. at 5 (“All of this evidence demonstrated that [Appellant], after a
struggle, pursued Smith with a gun and shot him in the head with the intent
to kill him.”). We therefore adopt the trial court’s analysis as our own in
disposing of this issue.
In his second issue, Appellant argues that the guilty verdicts of voluntary
manslaughter and “weapons offenses” were against the weight of the
evidence.4 Appellant’s Brief at 13.
We begin with our standard of review:
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
____________________________________________
4Appellant properly preserved this issue in compliance with Pennsylvania Rule
of Criminal Procedure 607 by raising it with the trial court in a post-sentence
motion. Appellant’s Motion for New Trial, 3/22/18, at 1-2.
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decision is extremely limited. Generally, 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. Moreover, where the trial court has ruled on
the weight claim below, an appellate court’s role is not to consider
the underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited to
whether the trial court palpably abused its discretion in ruling on
the weight claim.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations
omitted). “[I]t is for the fact-finder to make credibility determinations, and
the finder of fact may believe all, part, or none of a witness’s testimony.” Id.
(citation omitted). To allow an appellant “to prevail on a challenge to the
weight of the evidence, the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” Commonwealth v.
Talbert, 129 A.3d 536, 545 (Pa. Super. 2016) (citation omitted).
Instantly, Appellant’s weight argument consists of two cursory
paragraphs in which he states: “The Commonwealth did not prove that []
Appellant used any weapon or shot the victim. The argument is not
complicated; simply put, the Commonwealth failed to prove that it was the
Appellant who shot and killed the victim.” Appellant’s Brief at 13. Appellant’s
argument invokes the elements of voluntary manslaughter, and thus revisits
the sufficiency of the evidence. See Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. 2000) (explaining the differences between sufficiency and
weight of the evidence claims); see also Commonwealth v. Sexton, ---
A.3d ----, 2019 WL 5540999, *5 (Pa. Super. 2019) (“A motion for a new trial
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on the grounds that the verdict is contrary to the weight of the evidence,
concedes that there is sufficient evidence to sustain the verdict.”). Appellant
has failed to develop his challenge to the weight of the evidence, and therefore
he is not entitled to relief. See id. at *6 (“It is Appellant’s obligation to
sufficiently develop arguments in his brief by applying the relevant law to the
facts of the case, persuade this Court that there were errors below, and
convince us relief is due because of those errors.”) (citation omitted).
In sum, there is no merit to the issues Appellant raises on appeal. The
parties shall attach a copy of the trial court’s November 16, 2018 opinion in
the event of further proceedings relevant to this matter.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/20
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Circulated 01/13/2020 11:09 AM
FILED
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
CP-51-CR-0004532-2017
/"' -··-·-·.
Cf'-51-CR-0004532-2017 Gnm111 v Glenn, Ma:ton
v. Opi11iun
MARLON GLENN
OPINION
I IIll 111111111111111111
. s1�otE�s-�1
BRONSON,J. November 16, 2018
On December 27, 2017, following a jury trial before this Court, defendant Marlon Glenn
was convicted of one count each of voluntary manslaughter ( 18 Pa.C.S. § 2503(a)(l)), carrying a
firearm without a license ( 18 Pa.C.S. § 6106(aXl)), possession of an instrument of crime ("PIC")
(18 Pa.C.S. § 907(a)), carrying firearms on public streets or public property in Philadelphia (18
Pa.C.S. § 6108), and two counts of theft by unlawful taking (18 Pa.C.S. § 392l(a)). On March
16, 2016, the court imposed consecutive terms of l O to 20 years of incarceration for the
voluntary manslaughter, 3 t;; to 7 years of incarceration for carrying a firearm without a license,
2 Yz to 5 years incarceration for carrying firearms on a public street or public property in
Philadelphia, 2 � to 5 years incarceration for P IC, and 2 Yz to 5 years of incarceration for the
theft by unlawful taking charge, for an aggregate sentence of 21 to 42 years incarceration.' On
March 22, 2018, defendant filed post-sentence motions.which the Court denied on July 10,
2018.
· Defendant has now appealed from the judgment of sentence entered by the Court on the
grounds that: 1) the evidence was legally insufficient to sustain the verdict; 2) the verdict was
1 Due to merger, no sentence was entered on the conviction for the second count of'thcf] by unlawful taking.
1
against the weight of the evidence; and 3) the Court abused its discretion in imposing an
excessive sentence. Statement of Matters Complained of Pursuant to Rule of Appellate
Procedure l 925(b) ("Statement of Matters") at i!11-3. For the reasons set forth below,
defendant's claims are without merit and the judgment of sentence should be affirmed,
I. FACTUAL BACKGROUND
At trial, the Commonwealth presented the testimony of Philadelphia police officers
Andrew Miller, Terrance Lewis, Terry Tull, Earl Tilghman, and Kelly Walker, Philadelphia
police detectives Joseph Centeno and James Burke, Philadelphia associate medical examiner Dr.
Lindsay Simon, and Lerin Gilliard, David Westin, Von Williams, Margie Lazcnbury, Carole
Moore, Dennis Moore Jr., and Cameron Davis. Defendant presented no evidence. Viewed in the
light most favorable to the Commonwealth as the verdict winner, the evidence established the
following.
After work on Friday, March 3, 2017, Ramone Anthony Smith, the victim, drove his co-
worker, Lerin Gilliard, to her home, but first stopped to pick up defendant. N.T. 12/20/17 at 85.
After dropping off Gilliard, Smith and defendant arrived at Smith's house on the 4800 block of
Bouvier Street in Philadelphia. N.T. 12/20/17 at 145. Smith and defendant had been friends for
several months and were also engaged in a sexual relationship, which had been limited to Smith
performing oral sex on defendant. N.T. 12/20/17 at 107-09; N.T. l 2/22/17 at 38. Defendant,
however, did not identify as homosexual, and he lived and shared ·a bedroom with a woman.
N. T. 12/21/17 at 6-7, 62.
Sometime after 9:00 p.m., defendant was in Smith's basement working out. N.T.
12/22/17 at 38. Smith walked over to defendant and began to straddle him, which made
defendant upset. Id. The two men got into a struggle durin� which defendant grabbed Smith's
2
gun from a holster on Smith. id. The men proceeded upstairs into the kitchen, where defendant,
using Smith's gun, shot Smith one time in the back of the head. N.T. 12/22/17 at 37-38.
Because Smith did not answer his phone after 9 p.m. on Friday, all day Saturday, and
Sunday morning, Smith's friends, Cameron Davis and David Westin, grew concerned because
they typically spoke with him every day. N.T. 12/20/17 at 105-06; N.T. 12/21/17 at 64-65. On
Sunday, March 5, 2017, Davis and Westin went to Smith's house and noticed that Smith's
Toyota Camry was missing. N.T. 12/20/17 at 109; N.T. 12/21/17 at 66-67. The friends entered
Smith's house using a spare key that Smith had given them and they discovered the house was in
"complete disarray" and looked "ransacked." N.T. 12/20/17 at 110-11; N.T. 12/21/17 at 67. In
the living room, couch pillows were on the floor, and Smith's television was missing. N.T.
12/20117 at 111, 117. In the dining· room, papers were scattered across the table. N.T. 12/20/17
at 111, 117-18. In the middle upstairs bedroom, which Smith had converted to a walk-in closet
because he loved to shop and had a large collection of wallets, watches and shoes, many of
Smith's things were gone. N.T. 12/20/17 at 227-28. Westin found Smith's dead body in the
kitchen with a pool of dry blood surrounding his head. N.T. 12/20/17 at 111-12, 146. The
medical examiner determined that the cause of death was a gunshot wound to the back of the
head. N.T. 12/20/17 at I 89.
Philadelphia police detectives then conducted an investigation of the shooting. When
police arrived at Smith's house, Davis and Westin gave detectives a photo of defendant, whom
they believed was at Smith's house on that Friday night. N.T. 12/21/17 at 113. Police were able
to identify defendant and discovered his last known address was the 200 block of North 6P'
Street. N.T. 12/21/17 at 116. Officers also recovered Smith's FitBit and cell phone, and an
3
analysis of the FitBit showed that Smith stopped moving at.9:42 p.m. on March 3, 2017. N.T.
12/21/17 at 111, 113; N.T. 12/26/17 at 13.
Officers also learned of Smith's car's vehicle identification number ("VIN") and placed it
in stolen status. N.T. 12/20/17 at 149; N.T. 12/21/17 at l 14-15. The next day, March 6, 2017,
police located Smith's car on the 100 block of North Robinson Street, which is located
approximately a block and a half away from defendant's residence. N.T. 12/21/17 at 85, 115.
Shortly after initiating surveillance on the vehicle, defendant arrived. N.T. 12/21/17 at 83, 115.
Wearing blue rubber surgical gloves, defendant connected jumper cables to Smith's car. N.T.
12/21/17 at 83-84. He also went inside the front of Smith's vehicle. Id. Officers then
approached defendant, handcuffed him, and transported him to the Homicide Unit on 81h and
RaceStreets. N.T.12/21/17at83-84, 118.
. .
At Homicide, defendant was placed in an interview room and waived his Miranda rights.
N.T. 12/21/17 at 19. However, he later requested a lawyer, so detectives immediately ended
their questioning. N.T. 12/22/17 at 12-13. The next day, March 7, 2017, defendant asked to
resume speaking with Detective James Burns and again waived his Miranda rights. N.T.
12/22/17 at 13, 25. During questioning, defendant wrote "private" on a piece of paper, crossed it
out after Detective Bums saw it, and then asked to use the bathroom. N.T. 12/22il 7 at 33, 36.
While Detective Bums and defendant were out of the interview room, defendant confessed to
killing Smith and told him the events that led to Smith's death. N.T. 12/22/17 at 37-39.
Although defendant indicated that he would repeat his confession on camera, defendant refused
to do so once he and Detective-Burns re-entered the interview room. N.T. 12/26/17 at 56-57.
Instead: he claimed that what he told Detective Burns was merely a hypothetical. Id.
4
While defendant was at the Homicide Unit, detectives executed a search warrant on
defendant's residence, and recovered items, including wallets, watches and shoes, which were
later identified by Davis andWilliams as items belonging to Smith. N.T. 12/20/17 at 232·35;
12/22/17 at 12, 16-17. In addition, after police cleared the crime scene, Von Williams, Smith's
close family friend, went to Smith's house to clean the residence. N.T. 12/20/17 at 228. On a
shelf in the kitchen near where Smith's body was found, Williams found a 9 mm Ruger fired
cartridge casing. N.T. 12/20/17 at 229; N.T. 12122/17 at l 8. Police recovered Smith's gun
sometime in May 2017, when it was confiscated from Kyvon Jenkins in Abington Township,
N.T. 12/26/17 at 18� 19. Jenkins lived in the West Philadelphia area, approximately one mile
away from where defendant resided. N.T. 12/26/17 at l 9·20. Ballistics testing showed that the
fired cartridge casing found near Smith's body matched Smith's gun. N.T. 12/26/17 at 88-90.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant first claims that "the evidence was insufficient to support the verdict which
found the defendant guilty of Voluntary Manslaughter, Possession of an Instrument of Crime
(PIC), Theft-FI, and violation of the Uniform Firearms Act (VUFA)-- §6106 and §6108."
Specifically, defendant claims that "the evidence was grossly unreliable and would lead to a
verdict being based on surmise and corijccturc, all in violation of Commonwealth v Karkaria,
625 A.2d 1167 (Pa. 1993)." Statement of Matters at 1 1. This claim is without merit.
In considering a challenge to the sufficiency of the evidence, the Court must decide
whether the evidence at trial, viewed in the light most favorable to the Commonwealth, together
with all reasonable inferences therefrom, could enable the fact-finder to find every element of the
crimes charged beyond a reasonable doubt. Commonwealth v, Walsh, 36 A.3d 613, 618 (Pa.
5
Super. 2012). In making this assessment, a reviewing court may not weigh the evidence and
substitute its own judgment for that of the fact-finder, who is free to believe all, part, or none of
the evidence. Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). The Commonwealth
may satisfy its burden of proof entirely by circumstantial evidence. Id. Finally, "[ilf the record
contains support for the verdict, it may not be disturbed." Commonwealth v. Adams, 882 A.2d
496, 499 (Pa. Super. 2005) (quoting Commonwealth v. Bums, 765 A.2d 1144, 1148 (Pa. Super.
2000), app. denied, 782 A.2d 542 (Pa. 2001)).
I. Voluntary Manslaughter
"The law provides for a conviction of voluntary manslaughter under two different
circumstances. A person is guilty of voluntary manslaughter if, either he acted under a sudden
and intense passion resulting from a serious provocation or if he 'knowingly and intentionally
kills an individual' under the unreasonable belief that the killing was justified." Commonwealth
. .
v. Weston, 749 A.2d 458, 462 (Pa. 2000) (citing 18 Pa.C.S. § 2503(a)-(b)). In the instant case,
only the "sudden and intense passion" version of voluntary manslaughter was submitted to the
jury. 18 Pa.C.S. § 2503(a); see N.T. 12/26/17 at 194-96. For either version, "a conviction for
voluntary manslaughter will be upheld as long as the evidence is sufficient to show that the
elements of murder were present." Commonwealth v. Harner, 546 A.2d 1241, 1242 (Pa. Super.
1988), app. denied 564 A.2d 915 (Pa. 1989). "[W]here the evidence would be sufficient to ·
support a conviction of murder, the return of a verdict of voluntary manslaughter is strictly
within the jury's prerogative .... " Id. (quoting Commonwealth v. Hoffman, 266 A.2d 726, 731
(Pa. 1970)). Accordingly, the Court first looks to whether the evidence was sufficient to support
a first degree murder conviction. ·
6
"The evidence is sufficient to establish first-degree murder where the Commonwealth
proves that (1) a human being was unlawfully killed; (2) the person accused is responsible for the
killing; and (3) the accused acted with the specific intent to kill." Commonwealth v, Edwards,
903 A.2d 1139, 1146 (Pa. 2006). The specific intent to kill may be inferred from a defendant's
use of a deadly weapon on a vital part.of the victim's body. Commonwealth v. Robertson, 874
A.2d 1200, 1207 (Pa. Super. 2005).
Here, there was ample evidence to establish that defendant was guilty of first degree
murder. First, defendant admitted to the Detective James Bums that he had shot Smith. N.T.
12/22/17 at 36-38. According to Bums, defendant stated that while he was working out in
Smith's basement, Smith came over and straddled defendant, which upset defendant and started
a struggle between them. N.T. 12/22/17 at 38. Defendant stated to Bums that during that
struggle, defendant grabbed Smith's gun, which was holstered on Smith, and then defendant and
Smith went upstairs into the kitchen where defendant shot him. N.T. 12/22/17 at 38-39.
Although defendant made these admissions to Burns 625 A.2d 1167 (Pa.
1993).'; This claim is frivolous. In Karkaria, the defendant was charged with raping his step·
sister, who was 14 years old at the time of the trial. 625 A.2d at 1167-68. The Commonwealth's
case rested entirely on the credibility of the step-sister, whose testimony was "disturbingly
vague," unsupported by any physical evidence, and left the record "riddled with critical
inconsistencies." 625 A.2d at 1170-71. The evidence in the instant case, as described above,
sutlers from none of the infirmities present in Karkaria.
2. Theft by Unlawful Taking
A person is guilty of theft by unlawful tiling "if he unlawfully takes, or exercises
unlawful control over, movable property of another 'with intent to deprive him thereof." 18
Pa.C.S. § 3921 (a). Theft will be graded as a third degree felony "if the amount involved exceeds
$2,000, or if the property stolen is an automobile .... " 18 Pa.C.S. § 3903(a.l).
Here, there was sufficient evidence for the jury to conclude that defendant took many of·
Smith's personal and confidential items after shouting him. First, David Westin testified that
Smith's house looked like it had been "ransacked" on Sunday, March 5, 2017, when Westin
9
found Smith's dead body. N.T. 12/20/17 at 111. Cameron Davis testified that the house was in
"complete disarray." N.T. 12/21/17 at 67. Davis, Westin, and Von Williams also testified that
Smith had a large collection of wallets, watches, and shoes that he kept in his middle upstairs
bedroom. N.T. 12/20/17 at 114-15, 227-28; N.T. 12/21/17 at 53. The prosecution introduced
pictures of the condition of Smith's house after his body was found in which many of Smith's
shoes, wallets, and watches were gone froni the middle bedroom. See N.T. 12/20/17 at 120. In
addition, Smith's television was missing from his living room, and papers were scattered across
his dining room table. N.T. 12/20/17 at 111, 117-18.
Moreover, Margie Lazenbury, the woman with whom defendant shared a bedroom,
testified that when she woke up on the morning of Saturday, March 4, 2017, she saw clothing,
shoes, and bags in her room that were not present the previous night. N. T. 12/21117 at 8-9.
Alter police executed a search warrant on defendant's residence, police recovered items,
including wallets, watches and shoes. N.T. 12/20/17 al 209-214. Both prior to trial and at trial,
Williams and Davis identified some of these items as belonging to Smith. N.T. 12/20/17 at 231-
35; N.T. 12/21/17 at 70-74. In addition, Detective Joseph Centeno testified that police found a
nylon bag at defendant's residence that cont.ained numerous items of paperwork, mail and
identification bearing Smith's name. N.T. 12/20/17 at 211.
Further, there was ample evidence that defendant stole Smith's Toyota Camry. Detective
Burns testified that police located Smith's car approximately a block and a half away from
defendant's residence. N.T. l 2/21/17. Then, while police were surveilling the vehicle on March
6, 2017, one day after Smith's boc.ly was found, 'defendant was seen wearing blue latex gloves
and connecting jumper cables to Smith's car and going through paperwork inside the car. N.T.
12/21/17 at 83-84. Finally, five witnesses, Westin, Davis, Williams, Lerin Gilliard, Carole
10
Moore, and Dennis Moore Jr., all of whom were close with Smith, testified that Smith rarely let
anyone borrow his car and never let anyone borrow his car for a few days. N.T. 12/20/17 at 86,
109-10, 223-24; N.T. 12/21/17 at 27, 39.
Accordingly, the evidence established that defendant was guilty of theft by unlawful
taking as a felony of the third degree.
3. PIC
To sustain a conviction for PJC, the Commonwealth must establish that defendant
"possessejd] any instrument of crime with intent to employ it criminally." 18 Pa.C.S. § 907(a).
An «instrument of crime" is defined as "(I) [ajnything specially made or specially adapted for
criminal use .... [or) (2) [a]nything usedfor criminal purposes and possessed by the actor under
circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S-. § 907(d).
Here, the evidence described above established that defendant intentionally killed Smith
with Smith's own gun. Accordingly, the Commonwealth proved that defendant possessed the
gun for a criminal purpose, used it to commit a crime, and possessed it under circumstances not
appropriate for its lawful use. Therefore, the evidence established that defendant was guilty of
PIC.
4. Carrving a Firearm without a License
A person violates section 6106 of the Uniform Firearms Act if he "carries a firearm in
any vehicle or ... carries a firearm concealed on or about his person, except in his place of abode
or fixed place of business, without a valid and lawfully issued license." 18 Pa.·c.s. § 6106(a)(l).
"Firearm" is defined by section 6102 to include "[a]ny pistol or revolver with a barrel length less
than 15 inches." 18 Pa. C.S. § 6102. In order to fall under the purview of section 6106, the
object must also either be operable or the defendant must have under his control the means to
11
make the object operable. See Commonwealth v. Gainer, 7 A.3d 291, 297 (Pa. Super. 20 I 0),
app. denied, 23 A.3d l 05 5 (Pa. 2011 ).
Here, the parties stipulated that defendant did not have a license to carry a firearm. N.T.
'12/26/17 at 71. In addition, the evidence described above established that defendant, after killing
Smith, left the scene in Smith's car taking the gun and other stolen property with him. This was
sufficient evidence for the jury to conclude that defendant was guilty of carrying a firearm
without a license.
5. Carrying Firearms on Public Streets or Public Propertv in Philadelphia
A person violates section 6108 of the Uniform Firearms Act if he "carrjies] a firearm,
rifle or shotgun at any time upon the public streets or upon any public property in
[Philadelphia]." 18 Pa.C.S. § 6108. Here, as stated above, the evidence established that
defendantwas in possession of Smith's gun on the streets of Philadelphia as he carried it away
from Smith's residence in a stolen car. That was sufficient. to prove that defendant was guilty of
carrying a firearm on public streets or public property in Philadelphia.
B. Weight ofthe Evidence
Defendant next claims that the verdict is against the weight of the evidence, specifically
arguing that "[t]he Commonwealth's evidence did not prove that it was Defendant who shot and
killed the victim and did not prove that the Defendant stole anything from the person or house of
the victim." Statement of Matters at� 2. This claim is without merit.
It is well-established that a new trial may only be granted by the trial court where the
verdict was so contrary to the weight of the evidence as to '" shock one's sense of justice.":
Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004 ), app. denied, 878 A.2d 864
(Pa. 2005) (quoting Commonwealth v. Hunter, 554 A.2d 550, 555) (Pa. Super. 1989)).
12
Moreover, credibility determinations are solely within the province of the fact-finder, and "[a]n
appellate court cannot substitute its judgment for that of the finder of fact." Commonwealth v.
Taylor, 63 A.3d 327, 330 (Pa. Super. 2013) (internal quotation omitted). In considering a claim
that the trial court erred in refusing to find that a verdict was against the weight of the evidence,
"appellate review is limited to whether the trial court palpably abused its discretion in ruling on
the weight claim." Id. (quoting Shaffer, 40 A.3d at 1253).
Here, as discussed above, the Commonwealth presented compelling evidence of
defendant's guilt, including a confession and 'very strong corroborating evidence. This included
very credible proof that defendant was the killer and that he stole numerous items fromSmith
after killing him. See pp. 7-10, above.
Accordingly, the evidence plainly established that defendant committed the crimes for
which he was convicted. Because the evidence fully supported the verdicts, the Court did not
abuse its discretion in denying defendant's motion for a new trial.
C. Abuse of Discretion al Sentencing
Finally, defendant claims the following:
[T]he Honorable Court abused its discretion at time of sentencing when it
sentenced the defendant to an aggregate term of twenty-one (21) to forty-two (42)
or
years incarceration. It was an abuse discretion to sentence in the aggravated
range and, under all of the facts of this case, and considering the Sentencing
Guidelines, the undersigned, most respectfully, contends that the sentence
imposed was unduly harsh.
Statement of Matters at �[ 3. This claim is without merit.
"Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse of that discretion."
Commonwealth v. Anderson, 552 A.2d 1064, 1072 (Pa. Super. 1988), app. denied, 571 A.2d 379
(Pa. 1989); see Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). The sentencing court
13
must consider the need to protect the public, the gravity of the offense in relation to the impact
upon the victim and on the community, the rehabilitative needs of the defendant, and the
Sentencing Guidelines. 42 Pa.C.S. § 972l(b); see Commonwealth v. Hyland: 875 A.2d 1175,
1184 (Pa. Super. 2005) (quoting Commonwealth v. Monahan, 860 A.2d 180� 185 (Pa. Super.
2004)). Where the sentence falls outside the Sentencing Guidelines, the sentence should be
affirmed on appeal unless it is "unreasonable." 42 Pa.C.S. § 978l(c)(3); see Commonwealth v.
P.l.S, 894 A.2d 120, 130 (Pa. Super. 2006). "The sentencing court may deviate from the
guidelines, if necessary, to fashion a sentence which takes into account the protection of the
public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it
relates to the impact on the life of the victim and the community." Commonwealth v.
. .
Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002), app. denied, 820 A.2d 703 (Pa. 2003). The
factual basis and reasons for the departure must be stated on the record. Id
As to consecutive sentences, "[!Jong standing precedent of (the Superior] Court
recognizes that [the Sentencing Code] affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at the same time or to
sentences already imposed." Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005).
. .
Accordingly, the decision to sentence consecutively fails to raise a substantial question on appeal
unless that decision "raises the aggregate sentence to, what appears upon its face to be, an
excessive level in light of the criminal conduct at issue in the case." Commonwealth v.
. .
Mastromarino, 2 A.314 A.3d 825 (Pa. 201 l).
Therefore, an appellate court will not disturb consecutive sentences unless the aggregate
sentence is .. grossly disparate" to the defendant's conduct, or "viscerally appcar[s] as patently
'unreasonable.:" Commonwealth v. Gonzalez-Dejusus, 994 /\.2d 595, 599 (Pa. Super. 2010).
14
Here, while defendant's sentences on most of the charges were upward departures from
the guidelines, the sentence was reasonable for the reasons explained by the Court in detail
during the sentencing hearing.2 In determining the appropriate sentence in this case, the Court
explicitly considered the evidence adduced al trial and during the suppression hearing, the
sentencing memoranda submitted by both sides, the sentencing guidelines, victim impact
statements from Smith's family and friends, defendant's rehabilitative needs, the pre-sentence
report, defendant's mental health evaluation, the need for the protection of the public, and the
gravity of the offense in relation to the impact on the victim and on the community. N.T.
3/16/17 at 33-35. The Court stated that the killing defendant committed was not within the
heartland of the typical voluntary manslaughter case and· determined that there were aggravating
circumstances that warranted deviating upwards from the guidelines and for imposing
consecutive sentences. N.T. 3/16/17 at 35.
First, the Court observed that Smith had befriended defendant, helped him, and invited
him as a guest in Smith's home, and yet defendant put a bullet in the back of Smith's head. N.T.
3/16/ l 7 at 36. The Court also noted that in cases of heat of passion voluntary manslaughter, it is
not typical to find a defendant who, after such a killing, takes the Lime Lo canvas the victim's
house and steal his personal belongings and car, all while the victim lay dead nearby. N.T.
3/16/17 at 36-37. In addition, the Court noted that such behavior showed a hardness of heart not
often seen in voluntary manslaughter cases. N.T. 3116/17 at 36. The Court also stated that the
consecutive sentences were necessary to achieve an aggregate sentence that was commensurate
with the egregious misbehavior that led to the charges in this case. N.T. 3/16/17 at 37.
2 The Court sentenced defendant to standard range sentences on the charges of carrying a firearm without a license
(18 Pa.C.S. § 6106(a)(l)) and carrying a firearm on public streets or public property in Philadelphia (18 Pa.C.S. §
6108). The sentences on the charges of voluntary manslaughter (18 Pa.C.S. § 2503(a)(l)), PIC (18 Pa.C.S. § 907(a)),
and theft by unlawful taking (18 Pa.C.S. § 3921(a)) were upward departures.
· 15
Accordingly, the record establishes that there were compelling reasons for the departure
above the Guidelines and the consecutive sentences in this case, As a result, the sentence \\-1lS
reasonable and should not be disturbed.
111. CONCLUSION
For all of the foregoing reasons: the Court's judgment of sentence should be affirmed.
BY THE COURT:
GLENN B. BRONSON, J.
16
Commonwealth v. Marlon Glenn CP-51-CR-0004532-2017
Type of Order: 1925(a) Opinion ·
PROOF OF SERVICE
I hereby certify that Jam this day serving the foregoing Court Order upon the persorus), and in
the mannerindicated below, which.service satisfies the requirements of Pa.R.Crim.P.l 14:
Defense Counsel/Party:
David Rudenstein, Esquire
9411 Evans Street
Philadelphia, PA 1911 S
Type of Service: ( ) Personal (X) First Class Mail O Other, please specify:
District Attorney:
Lawrence Goode, Esquire
Interim Supervisor, Appeals Unit
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499
Type of Service () Personal () First Class Mail (X) Other, please specify: Interoffice Mail
Additional Counsel/Party:
. Joseph D. Selctyn, Esquire
Prothonotary
Office of the Prothonotary - Superior Court
530 Walnut Street, Suite 315
Philadelphia, PA 19106
Type of Service: ( ) Personal (X) First Class Mail () Other, please specify:
Dated: November 16, 2018
tlku>vvv �
Thomas R. Smith
Law Clerk to Hon. Glenn B. Bronson