Com. v. Kennedy, R.

J-S27010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD ANDRE KENNEDY :
:
Appellant : No. 1451 WDA 2019
Appeal from the Judgment of Sentence Entered August 22, 2019
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000725-2017
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: JANUARY 25, 2022
Appellant, Richard Andre Kennedy, appeals from the judgment of
sentence entered on August 22, 2019, following his jury trial convictions for
first-degree murder, second-degree murder, aggravated assault, kidnapping,
possession of an instrument of crime, possession of a prohibited offensive
weapon, abuse of corpse, and tampering with physical evidence.1 We affirm.
We briefly summarize the facts and procedural history, as gleaned from
the certified record, as follows. On October 27, 2017, police were called to a
residence on New Street in Venango County. The residents of the home found
blood and physical damage inside the house and were concerned that a
woman named Tausha Baker was potentially missing. Police uncovered blood
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. §§ 2502(a), 2502(b), 2702(a)(1), 2901(a)(2), 907(a), 908(a),
5510, and 4910(1), respectively.
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spatter, bloody clothing, and Baker’s tooth in the first floor of the residence
and a damaged frying pan from the yard. That same day, officers responded
to a call that there was a brush fire at a wooded garbage dump site on
Waterworks Road in Venango County, several miles from the residence on
New Street. Police recovered Baker’s severely burned body at that site. An
autopsy later revealed Baker sustained blunt force trauma to her head and
was stabbed multiple times in the head, neck, and torso. While police were
investigating at the New Street residence, Appellant and Amanda Cypher,
Appellant’s girlfriend and the co-defendant in this matter, arrived near the
location together. Cypher was apprehended and Appellant ran.
Cypher gave several audio and video recorded statements to police
about the incident and ultimately testified against Appellant at a 13 day trial
in April 2019. Cypher testified that Appellant hit Baker five times in the head
with a frying pan in the kitchen of the New Street residence and then got on
top of her and hit her in the face multiple times with his fists. N.T., 4/10/2019,
at 103-105. Appellant then bound Baker’s arms and legs with duct tape. Id.
at 106. Appellant carried Baker out of the house, got in the backseat of a
maroon SUV with Baker, and told Cypher to drive toward the woods. Id. at
116-117. Appellant additionally bound Baker’s hands with a white phone
charger cord that was inside the vehicle. Id. at 123. Appellant told Cypher
to stop the vehicle on Waterworks Road. Id. at 118-119. Appellant stabbed
Baker with a knife multiple times in the right shoulder area. Id. at 120-121.
Appellant also cut his hand. Id. at 121. Appellant placed Baker on the ground
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and hit her in the head twice with a large rock. Id. at 121-122. Cypher
complied with Appellant’s command to cut the hand bindings and remove
Baker’s bloody clothing. Id. at 123-124. Appellant rolled Baker’s body over
a hill. Id. at 125. Appellant directed Cypher to drive away but ordered her
to stop so he could throw the rock, knife, and Baker’s cellular telephone off
the side of the road. Id. at 126. Appellant and Cypher took off articles of
their clothing and Appellant hid them on a hillside along with Baker’s clothes
and a bloody blanket. Id. at 127-130. Appellant took a can of gasoline sitting
outside a nearby house. Id. at 130. Cypher drove Appellant back to
Waterworks Road where he set Baker’s body on fire. Id. at 132. Appellant
and Cypher went to several locations afterwards to clean away blood. Id. at
133-143. Eventually, Cypher drove Appellant back to Waterworks Road where
he set Baker’s body on fire again. Id. at 146-148. Appellant told Cypher, “No
face, no case.” Id. at 145. While Cypher testified that she smoked
crack-cocaine with Appellant preceding the incidents at issue and had been
with Appellant while he was intoxicated “quite a few” times before, she claimed
he was not acting unusually and did not have trouble communicating before,
during, or after the crimes. Id. at 91 and 139; see also N.T., 4/11/2019, at
17-20; id. at 62 (“He was fine.”).
Several eyewitnesses corroborated Cypher’s timeline of events. One of
the residents of the house on New Street saw Cypher drive away in a maroon
SUV. N.T., 4/5/2019, at 57-58. A married couple passed a maroon SUV
parked on Waterworks Road and saw a man and woman matching descriptions
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of Appellant and Cypher standing nearby. Id. at 145-146. Police recovered
bloody clothing and a blanket from a “hollowed out tree trunk near 15 th and
Otter Streets.” N.T., 4/8/2019, at 78-100. Police also recovered a severed
white cellular phone charger cord. Id. at 102. Pursuant to a search warrant,
police recovered a gasoline can with blood on the handle from the maroon
SUV. Id. at 32. Subsequent testing revealed that Appellant’s DNA was found
on the gasoline can. N.T., 4/9/2019, at 544. Blood swabs taken from the
house on New Street and from inside the maroon SUV showed the presence
of the victim’s DNA. Id. at 542-558. Upon his arrest, police took fingernail
clippings from Appellant and the victim’s DNA was later detected under the
fingernails of Appellant’s right hand. Id. at 554. The jury also viewed
surveillance recordings police recovered from a residence on Waterworks
Road, a daycare near the New Street residence, a gas station, and the security
camera from City Hall which showed images of the maroon SUV. See N.T.,
4/12/2019.
On April 17, 2019, a jury convicted Appellant of the aforementioned
crimes. On August 22, 2019, the trial court sentenced Appellant to two
concurrent sentences of life imprisonment for the first-degree and
second-degree murder convictions.2 Consecutive to the concurrent terms of
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2 See Commonwealth v. Crissman, 195 A.3d 588, 594 (Pa. Super. 2018)
(“[F]irst and second-degree murder convictions do not merge under 42
Pa.C.S.A. § 9765. First-degree murder requires proof of a specific intent to
kill in all cases while second-degree murder does not, and second-degree
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life imprisonment, the trial court imposed an aggregate sentence of 71 to 168
years of imprisonment for the remaining crimes.3 This timely appeal resulted.4
On appeal, Appellant presents the following issues for our review:
I. Did the trial court err when it failed to suppress evidence of
the co-defendant’s statement/cooperation, where evidence
was purposefully withheld by the Commonwealth?
II. Did the trial court err in prohibiting the testimony of Dr.
Lawrence Guzzardi, related to the defense of voluntary
intoxication to the charge of first[-]degree murder?
III. Did the trial court err in failing to instruct the jury on the
defense of voluntary intoxication to the charge of
first[-]degree murder, when there was circumstantial
evidence of consumption of drugs and alcohol by
[Appellant]?
IV. Was the evidence insufficient in this case to convict
[Appellant] of first[-]degree and/or second[-]degree
[murder]?
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murder requires the commission of an enumerated underlying felony while
first-degree murder does not.”).
3 The crimes of aggravated assault and kidnapping merged for sentencing
purposes. The trial court imposed the sentences for the remaining attendant
crimes consecutively to each other.
4 Appellant filed a notice of appeal on September 19, 2019. On September
23, 2019, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely after the trial court granted a request for an extension in order to
acquire the notes of testimony from trial. Subsequently, the trial court did
not issue an opinion pursuant to Pa.R.A.P. 1925(a). Instead, on December
18, 2020, the trial court filed a statement sur Rule 1925(a) opinion asserting
it relied upon the record in all the matters on appeal. Upon review of the
record, on March 12, 2019, the trial court issued a pretrial opinion which
specifically addressed the second issue presented on appeal.
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Appellant’s Brief at 2-3 (complete capitalization omitted; roman numerals
added).
In his first issue presented, Appellant claims that the trial court erred in
ruling on his motion to dismiss, wherein he alleged the Commonwealth
committed a discovery violation in contravention of Brady v. Maryland, 373
U.S. 83 (1963). See Appellant’s Brief at 22-24. Appellant maintains that,
before trial, the Commonwealth possessed a written statement that
co-defendant Cypher gave to the police but the Commonwealth did not
disclose it to Appellant until after the conclusion of the first day of trial. Id.
at 22. Appellant argues that the trial court’s reliance on Commonwealth v.
Burke, 781 A.2d 1136 (Pa. 2001) was erroneous because “in this case, the
failure to turn over [the document] was not the result of confusion between
the police and the prosecutor but solely based on an error by the prosecutor.”
Id. at 24. Appellant claims that he was prejudiced by the late disclosure and
that dismissal of his homicide and related charges is the appropriate remedy
for the Commonwealth’s Brady violation. Id. at 21.
Our standard of review is as follows:
Decisions involving discovery matters are within the sound
discretion of the trial court and will not be overturned absent an
abuse of that discretion. While the trial court retains the discretion
to fashion an appropriate remedy when a party has violated the
discovery rules, such discretion is not unfettered. An abuse of
discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.
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Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017).
“[T]here are three necessary components that demonstrate a violation
of the Brady strictures: the evidence was favorable to the accused, either
because it is exculpatory or because it impeaches; the evidence was
suppressed by the prosecution, either willfully or inadvertently; and prejudice
ensued.” Burke, 781 A.2d at 1141. In Burke, the Pennsylvania Supreme
Court further stated:
Because of the compelling societal interest in prosecuting criminal
defendants to conclusion, [our Supreme] Court has recognized
that dismissal of charges is an extreme sanction that should be
imposed sparingly and [] only in cases of blatant prosecutorial
misconduct. As [previously] explained:
Dismissal of criminal charges punishes not only the
prosecutor ... but also the public at large, since the public
has a reasonable expectation that those who have been
charged with crimes will be fairly prosecuted to the full
extent of the law. Thus, the sanction of dismissal of criminal
charges should be utilized only in the most blatant cases.
Given the public policy goal of protecting the public from
criminal conduct, a trial court should consider dismissal of
charges where the actions of the Commonwealth are
egregious and where demonstrable prejudice will be
suffered by the defendant if the charges are not dismissed.
[Commonwealth v. Shaffer, 712 A.2d 749, 752 (Pa. 1998)];
see also Commonwealth v. McElligott, 432 A.2d 587, 589 (Pa.
1981) (“The remedy of discharge without a fair and complete
fact-finding procedure is extreme and will not be invoked absent
deliberate bad faith prosecutorial misconduct”); Commonwealth
v. Smith, 615 A.2d 321, 325 (Pa. 1992) (dismissal of charges is
appropriate only where “prosecutorial misconduct is intended to
provoke the defendant into moving for a mistrial, [or where] the
conduct of the prosecutor is intentionally undertaken to prejudice
the defendant to the point of the denial of a fair trial”).
Id. at 1144.
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Ultimately, the Burke Court concluded:
Rather than prosecutorial misconduct, it appears that [the Burke]
case primarily involve[d] miscommunication between the police
departments involved in the investigation and/or police
mishandling of the evidence. The materials were compiled by the
Ohio Township police. The Allegheny County police, however,
assumed jurisdiction over the investigation several hours after the
incident. The prosecutor relied exclusively upon the Allegheny
County police to supply her with evidence responsive to the
defense's discovery requests. The prosecutor suggested that
there may have been some confusion between the departments
as to whether the Ohio Township police had, in fact, turned over
the items in question to the Allegheny County police. It was also
suggested that [a] handwritten statement may have been misfiled
by the Allegheny County police in a file on an unrelated matter[.
I]t is apparent from the record that it did not result from deliberate
misconduct by the prosecutor designed to compel [Burke] into
moving for a mistrial or to deprive [him] of a fair trial.
Id. at 1145–1146.
In this case, the Commonwealth explained that, after the first day of
trial, the prosecutor asked one of the investigating officers if the police were
in possession of additional photographs of the co-defendant that had not been
turned over. N.T., 4/4/2019, at 4. The officer told the Commonwealth that
he had delivered a “blue binder” to the Commonwealth’s office the week prior
to trial. Id. According to the Commonwealth, the officer believed that the
Commonwealth already had all of the documents that were contained in the
binder. Id. at 5; 16. However, upon further inspection of the blue binder
after trial began, the Commonwealth found a signed, written statement given
to police by co-defendant Cypher. Id. at 7-8. As a result, the prosecutor
found defense counsel having dinner at his hotel and gave him the documents
from the blue binder before the second day of trial. Id. at 5. The
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Commonwealth argued that the written statement correlated with two audio
and video recordings of Cypher’s statements to police that were already
provided to Appellant during discovery and, therefore, there was no prejudice
to Appellant. Id. at 8.
The trial court noted:
With respect to what the Commonwealth characterizes as the
half-written statement of Amanda Cypher, the alleged
co-[d]efendant[,] that it had found in the blue binder[, t]he
Commonwealth represents that the information contained therein
corelates with the oral statements of Cypher made to Officer
[Christopher] Wagner and which Officer Wagner testified that
Cypher made to him [on the first day of] trial. The Commonwealth
represented moreover that it gave [d]efense [c]ounsel two audio
recordings of Cypher’s statements prior to trial. When this written
statement was discussed at the hearing on [Appellant’s oral
motion to dismiss], both parties agreed that it would be proper to
have Officer Wagner recalled if requested by the defense so that
[Appellant] could cross-examine him on the circumstances
surrounding Amanda Cypher giving the police this written
statement.
Id. at 51.
Ultimately, the trial court determined:
While viewing the[] unusually discovered and undisclosed
document… in conjunction with the circumstances under which the
Commonwealth discovered [it] and the steps they took to
immediately apprise [Appellant] of the fact that they found it, the
trial court found] that neither granting a dismissal of the case nor
granting a mistrial [was] warranted. The Commonwealth did not
commit blatant prosecutorial misconduct and did not conceal the
existence of [it] from [d]efense [c]ounsel. Rather, the
Commonwealth, upon knowledge that the[] document[] and
information existed, immediately informed [Appellant.] There
was no indication [] that the Commonwealth intentionally or
maliciously concealed the document[] and information until after
the start of trial. Moreover, the actual document[,] despite the[]
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late discovery, [did] not prejudice [Appellant] to warrant dismissal
or mistrial.
***
Both the Commonwealth and [Appellant] agreed [to recall] Officer
Wagner [as a witness] if requested at trial to give testimony to
the circumstances leading to Amanda Cypher giving this written
statement. And, furthermore, as Amanda Cypher [had] not yet
been called at trial, [d]efense [c]ounsel would certainly be able to
question [her] about the written statement at trial.
Id. at 51-55.
We discern no trial court error or abuse of discretion in denying
Appellant’s motion to dismiss based upon the late-disclosed written statement
by Cypher. Here, similar to the facts of Burke, there was miscommunication
between the Commonwealth and the police that delayed the disclosure of
Cypher’s written statement. There was simply no evidence that the
Commonwealth engaged in deliberate misconduct. Furthermore, the
substance of the statements Cypher made in her written statement were
included in audio and video recordings made by the police and produced to
Appellant in a timely manner well before trial. As such, Appellant did not
demonstrate prejudice by the late disclosure. Thus, we discern no abuse of
discretion in denying Appellant’s motion to dismiss.
In his second issue presented, Appellant claims the trial court “erred
when it prohibited testimony by [his expert,] Dr. Lawrence Guzzardi regarding
how intoxication/drug use would have affected [Appellant’s] ability to form
intent to commit murder, as circumstantial evidence was presented at trial
from various witnesses regarding [Appellant’s] possible use of drugs and
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alcohol.” Appellant’s Brief at 21. Appellant argues that Dr. Guzzardi “opined
in [a] report that [Appellant] could not form the requisite mens rea on the
date of the murder because he ingested certain drugs and alcohol on the date
of the death.” Id. at 24. Appellant maintains that the trial court erred by
precluding Dr. Guzzardi’s testimony from trial because he opined in his report
that it was “highly unlikely” Appellant could form the requisite intent to commit
murder, because the doctor’s opinion was based on Appellant’s own
statements regarding his intoxication. Id. at 24-25. Instead, Appellant
suggests that “[i]t would have been appropriate to allow Dr. Guzzardi’s
testimony and allow the jurors to decide whether enough evidence based on
the testimony of other witnesses who were with [Appellant] that night to
support whether or not he was indeed under the influence of the drugs and/or
alcohol on the date in question.”5 Id. at 25. To support his argument that
the trial court should have allowed Dr. Guzzardi to testify regarding Appellant’s
ability to form intent on the night in question, Appellant points to the following
evidence elicited at trial:
the owner of the house in which [Appellant] and victim were
present [testified] that there was a burned piece of tin foil, which
would have indicated drug use[;] another witness stated that he
saw drugs in front of [co-defendant] Cypher and[;] there was
testimony that [co-defendant] Cypher and [Appellant] were upset
that the drugs they had purchased from [victim] Baker were not
what they thought they were. [Appellant argues that t]he
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5 As will be discussed later, to prove diminished capacity due to voluntary
intoxication, a defendant must show that he was overwhelmed to the point
of losing his faculties and sensibilities.
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testimony throughout the trial indicated a pattern of alcohol usage
by persons in the house along with regular drug usage.
Id. at 25-26; see also id. at 27 (“[R]egarding Dr. Guzzardi’s testimony, there
were indications throughout the trial that [Appellant] likely could have
ingested drugs and alcohol throughout the evening.”).
Here, in ruling on Dr. Guzzardi’s report and testimony prior to trial, the
trial court relied upon our Supreme Court’s decision in Commonwealth v.
Towles, 106 A.3d 591 (Pa. 2014). See Trial Court Opinion, 3/12/2019, at
4-7. In Towles, our Supreme Court held:
Decisions regarding the admission of expert testimony are left
within the trial court's sound discretion, and [an appellate court]
will not disturb such decisions absent a clear abuse of discretion.
An expert opinion may be based on inadmissible facts or facts not
in evidence, including other expert opinions and hearsay
statements, as long as such facts are of a type reasonably relied
on by experts in that profession. [T]he trial court [has] sound
discretion [] to make a preliminary determination as to whether
the particular underlying facts are of a kind reasonably relied upon
by experts in the particular field. …If an expert states an opinion,
the expert must state the facts or data on which the opinion is
based. However, an expert may not act as a mere conduit of
hearsay or transmitter of extrajudicial information.
[…Towles’] self-serving statements were not of a type reasonably
relied on by experts in toxicology. There is a distinction between
an expert using basic facts provided by laymen to form an expert
opinion, versus one who simply parrots out-of-court statements
in court, thereby acting as a conduit for hearsay. In this case,
there were no toxicology screens or tests performed on [Towles].
The expert's report was simply [Towles’] firsthand narrative of the
events on the night of the murder and a detailed account of his
drug and alcohol consumption that night. Had the expert been
permitted to testify to the facts contained in his report, he would
have been merely relaying testimony [Towles] would have given
had he taken the stand. Pennsylvania's Rules of Evidence do not
provide a mechanism for a criminal defendant to decline to testify
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and to avoid the rules of evidence by using an expert witness to
introduce his story into the record. Accordingly, it was proper for
the trial court to exclude the report from the jury's consideration
and to prevent [Towles’] statements from reaching the jury via
the expert's testimony.
Towles, 106 A.3d at 605–606 (internal citations, quotations, and original
brackets omitted).
Upon review, we discern no abuse of discretion in the trial court’s ruling
on Dr. Guzzardi’s report and proffered trial testimony. Here, Appellant does
not dispute that Dr. Guzzardi’s opinions were based solely on Appellant’s
account of his purported intoxication. Appellant did not testify in this case
and, therefore, similarly to Towles, Appellant could not use Dr. Guzzardi as
a conduit for hearsay to introduce Appellant’s story into the record. Moreover,
Appellant simply has not shown there was other evidence to support Dr.
Guzzardi’s opinions. Appellant admits that the evidence presented at trial
showed only that it was possible or likely he could have ingested drugs and
alcohol throughout the evening. Even the circumstantial evidence Appellant
cites in his appellate brief – burned aluminum foil in a common area of the
house where the crimes originated, narcotics witnessed in front of the
co-defendant, and/or a purported dispute with the victim over narcotics - does
not support Dr. Guzzardi’s proffered opinion that it was highly likely that
Appellant’s intoxication overwhelmed him to the point of losing his faculties
and sensibilities. Aside from his own statements to his expert, Appellant has
not shown any evidence to support the admission of Dr. Guzzardi’s proffered
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opinion. As such, we discern no trial court abuse of discretion and Appellant
is not entitled to relief.
Next, Appellant argues that he was entitled to a jury instruction
regarding voluntary intoxication since circumstantial evidence of his drug and
alcohol use was established. Appellant’s Brief at 27. Appellant concedes that
a voluntary intoxication instruction is only warranted when there is evidence
that such intoxication overwhelmed the defendant to the point of losing his
faculties and sensibilities. Id. He claims, however, in this case, “[t]he
testimony regarding foil, purchasing drugs that evening, and the presence of
alcohol in the house where [Appellant] was for hours that evening supports
[his claim] that this instruction should have been given for consideration by
the jury.” Id. at 27-28.
“[O]ur standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court's
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Galvin, 985 A.2d 783, 788-789 (Pa. 2009). Our
Supreme Court has previously determined:
A defense of diminished capacity negates the element of specific
intent, and thus mitigates first-degree murder to third-degree
murder. The mere fact of voluntary intoxication does not give rise
to a diminished capacity defense. Rather, to prove diminished
capacity due to voluntary intoxication, a defendant must show
that he was overwhelmed to the point of losing his faculties and
sensibilities. Evidence that the defendant lacked the ability to
control his or her actions or acted impulsively is irrelevant to
specific intent to kill, and thus is not admissible to support a
diminished capacity defense.
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[Our Supreme] Court has previously made clear that a jury
instruction regarding diminished capacity due to voluntary
intoxication is justified only when the record contains evidence
that the accused was intoxicated to the point of losing his or her
faculties or sensibilities. Evidence that the accused ingested
alcohol or other intoxicating drug—without more—does not
warrant a voluntary intoxication instruction[, especially when]
there [is] no evidence that the [accused] exhibited any signs of
intoxication or unusual behavior.
Commonwealth v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013) (internal
citations and quotations omitted).
Here, as discussed at length regarding Appellant’s proffered expert
toxicologist, Dr. Guzzardi, aside from Appellant’s own statements, there was
no evidence presented at trial that Appellant was intoxicated to the point of
losing his faculties or sensibilities. The mere fact that Appellant ingested
alcohol or controlled substances prior to the crimes did not give rise to a
diminished capacity jury instruction. In this case, there was no evidence
presented that Appellant exhibited signs of intoxication or unusual behavior.
Accordingly, the trial court properly declined to instruct the jury regarding
diminished capacity due to voluntary intoxication.
In his last argument on appeal, Appellant contends that there was
insufficient evidence to support his murder convictions. Appellant’s Brief at
28-31. He claims that the Commonwealth “did not prove beyond a reasonable
doubt that [Appellant] was in fact the individual that struck or killed [] Baker.”
Id. at 29. Appellant claims the Commonwealth offered “no specific reason”
for Appellant to kill Baker and, therefore, failed to establish he possessed the
specific intent to kill. Id. at 31. Rather, Appellant argues that “the evidence
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pointed to the possibility that Amanda Cypher, who testified that she was
present at all times throughout this situation, actually killed [] Baker due to
[a debt dispute].” Id. at 28-29.
This Court has previously stated:
[W]e must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a light
most favorable to the Commonwealth as verdict winner, support
the conviction beyond a reasonable doubt. Critically important,
we must draw all reasonable inferences from the evidence in favor
of the Commonwealth as the verdict-winner. Where there is
sufficient evidence to enable the trier of fact to find every element
of the crime has been established beyond a reasonable doubt, the
sufficiency of the evidence claim must fail. Of course, the
evidence established at trial need not preclude every possibility of
innocence and the fact-finder is free to believe all, part, or none
of the evidence presented.
The Commonwealth can meet its burden by wholly circumstantial
evidence and 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. It is improper for this
Court to re-weigh the evidence and substitute our judgment for
that of the fact-finder. Additionally, the entire record must be
evaluated and all evidence actually received must be considered.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc)
(internal citations and quotations omitted).
Our Supreme Court has held:
In order to sustain a conviction for first[-]degree murder, the
Commonwealth must prove (1) that the defendant acted with a
specific intent to kill; (2) that a human being was unlawfully killed;
(3) that the person accused did the killing; and (4) that the killing
was done with deliberation. Specific intent to kill can be proven
where the defendant knowingly applies deadly force to the person
of another. Death caused by the use of a deadly weapon upon a
vital part of the victim's body is sufficient to prove the specific
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intent required for a conviction of first[-]degree murder.
Furthermore, all co-conspirators to a murder may be found guilty
of first[-]degree murder, regardless of which person actually
inflicted the wound which resulted in death.
Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (internal citations
and quotations omitted).
Here, viewing the evidence as set forth in detail above in the light most
favorable to the Commonwealth as the verdict winner, as our standard of the
review requires, the Commonwealth established Appellant was the person that
applied deadly force to the victim.6 The evidence introduced at trial showed
that Appellant hit the victim in the head with a frying pan and his fists, stabbed
her upper torso multiple times with a knife, crushed her head with a large
rock, and set her body on fire twice with gasoline. The jury was free to believe
all, part, or none of the evidence presented and we may not substitute our
judgment for the fact-finder’s determinations. Moreover, a co-conspirator
may be found guilty of murder, regardless of which person actually inflicted
the wound which resulted in death. Appellant does not refute that he was
present for the murder. As such, Appellant’s suggestion that Cypher possibly
killed Baker is immaterial and does not entitle him to relief. Moreover, the
Commonwealth presented evidence at trial that soon after the murder the
police recovered samples of the victim’s DNA from underneath Appellant’s
fingernails. Accordingly, we conclude that the trial court presented sufficient
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6Appellant does not refute that the victim died from the use of deadly weapons
on vital parts of her body.
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evidence to support Appellant’s murder convictions. Accordingly, Appellant’s
final issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2022
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