Com. v. Morton, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAXWELL MARION MORTON :
:
Appellant : No. 905 WDA 2017
Appeal from the Judgment of Sentence May 15, 2017
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001626-2015
BEFORE: OLSON, J., OTT, J., and STRASSBURGER, J.
MEMORANDUM BY OTT: FILED AUGUST 22, 2018
Maxwell Marion Morton appeals from the judgment of sentence entered
in the Westmoreland County Court of Common Pleas, following his jury trial
convictions of murder in the third degree and possession of firearm by minor.1
We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Trial Court Opinion, 8/15/2017, at
1-5 (citations omitted). Therefore, we have no reason to restate them at
length.
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 Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. §§ 2502(c), 6110.1(a), respectively. Morton was also found not
guilty of murder of the first degree, id. § 2502(a), and involuntary
manslaughter, id. § 2504(a).
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We briefly note that, on February 4, 2015, in a bedroom at 1018 Rankin
Avenue in Jeannette, Westmoreland County, Morton shot Ryan Mangan in the
left eye; Morton then hid the firearm in his own home under the stairs leading
to the basement. Id. at 1-3, citing N.T., 2/14/2017, at 90-92, 155 (testimony
of Detective James Williams of the Westmoreland County District Attorney’s
Office). Detective James Williams was the first to arrive at the scene, at about
6:45 p.m., where he found Mangan’s body in a green chair, slumped to the
left, with a large amount of blood on the table and floor to the left of Mangan’s
body. Id. at 1-2, citing N.T., 2/14/2017, at 92 (testimony of
Detective Williams).
During a subsequent interview, Morton told Detective Williams that he
had been holding a firearm, looked down at it, looked at Mangan, and then
pulled the trigger. Id. at 3, citing N.T., 2/14/2017, at 158 (testimony of
Detective Williams). After the shooting, Morton cleaned up the fired
cartridges, did not seek medical care for Mangan, stole Mangan’s shoes, took
a “selfie” photograph with Mangan as he was dying, fled the scene, and sent
the “selfie” photograph to a fourteen-year-old friend, T.P. Id. at 2-4, 7, citing
N.T., 2/14/2017, at 134-136; N.T., 2/15/2017, at 222-223 (testimony of
T.P.), 263 (testimony of forensic pathologist, Cyril H. Wecht, M.D.); N.T.,
2/16/2017, at 381-383 (testimony of Morton). T.P. informed police that
Morton told him that he had “caught his first body.” Id. at 3.
Morton now raises one issue for our review:
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Did the [t]rial [c]ourt err in finding that the evidence was sufficient
to support the jury verdict of [t]hird degree murder where the
evidence presented was inconsistent with a finding of the element
of malice required for [t]hird degree murder but rather the
evidence presented was consistent with involuntary manslaughter
where the shooting was accidental and [Morton]’s acts were
reckless and/or grossly negligent.
Morton’s Brief at 4.
Morton contends that “the trial court erred in allowing” the verdict of
murder of the third degree “to stand” and that the evidence presented was
“consistent” with involuntary manslaughter instead. Id. at 16-17. He
maintains that “it is clear from the record that the shooting of Ryan Mangan
was accidental.” Id. at 18-19. He further argues that “the jury found [his]
acts, post[-]shooting, so reprehensible that they reacted emotionally and not
in accordance with the charge given them by the trial judge.” Id. at 20.
In reviewing the sufficiency of the evidence, our standard of
review is as follows:
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. . . .
Finally, the trier 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.
Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. Super. 2017) (citation
and internal brackets omitted) (some formatting), appeal denied, 174 A.3d
558 (Pa. 2017).
“Third-degree murder is defined ‘all other kinds of murder’ other than
first degree murder or second degree murder. 18 Pa.C.S. § 2502(c).
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The elements of third-degree murder, as developed by case law, are a killing
done with legal malice.” Commonwealth v. Marquez, 980 A.2d 145, 148
(Pa. Super. 2009) (en banc) (citation and some internal quotation marks
omitted). Here, there is no doubt that the killing of Ryan Mangan has
occurred; thus, the only disputed element is whether Morton acted with
malice. See id.“[M]alice is an essential element of third-degree murder and is the
distinguishing factor between murder and manslaughter.” Commonwealth
v. Smouse, 594 A.2d 666, 671 (Pa. Super. 1991).
We have stated that a person may be convicted of third-degree
murder where the murder is neither intentional nor committed
during the perpetration of a felony, but contains the requisite
malice aforethought. . . . We have defined malice as a wickedness
of disposition, hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty, although a
particular person may not be intended to be injured. In
addition, malice may be inferred from the use of a deadly
weapon upon a vital part of the body. Malice may also exist
where the principal acts in gross deviation from the standard of
reasonable care, failing to perceive that such actions might create
a substantial and unjustifiable risk of death or serious bodily
injury.
Commonwealth v. Yanoff, 690 A.2d 260, 264 (Pa. Super. 1997) (emphasis
added; internal citations and quotation marks omitted). The statutory
definition of a “deadly weapon” includes “any firearm.” 18 Pa.C.S. § 2301. A
person’s head has been found to be a vital part of the body. E.g.,
Commonwealth v. Poplawski, 130 A.3d 697, 710 (Pa. 2015);
Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015).
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Accordingly, even if we accept Morton’s representation that his actions
were “accidental[,]” Morton’s Brief at 16, he still could have been properly
convicted of murder of the third degree.
“[M]alice may be inferred from the use of a deadly weapon upon a vital
part of the body.” Yanoff, 690 A.2d at 264. Here, Morton shot Mangan in
his left eye. Trial Court Opinion, 8/15/2017, at 2-3. A firearm is a “deadly
weapon.” 18 Pa.C.S. § 2301. An individual’s eye and, consequently, head
are vital parts of the body. Poplawski, 130 A.3d at 710; Hitcho, 123 A.3d
at 746. Hence, by shooting a firearm at Mangan’s eye and head, Morton used
a deadly weapon upon a vital part of Mangan’s body, and malice can thereby
be inferred. Yanoff, 690 A.2d at 264.
Furthermore, viewing all the evidence admitted at trial in the light most
favorable to the Commonwealth as verdict winner,2 the evidence is clearly
sufficient to establish malice. Morton told police that, immediately prior to the
shooting, he looked at the firearm, looked at Mangan, and then fired the
weapon. Trial Court Opinion, 8/15/2017, at 3. After shooting Mangan, he did
not seek medical care for Mangan who was bleeding profusely, had the
presence of mind to clean up the spent shells, callously stole Mangan’s shoes,
took a commemorative photograph of himself with Mangan as he was dying,
fled the scene, bragged to a friend about the killing, and then proceeded to
hide the firearm. Id. at 1-4, 7, citing N.T., 2/14/2017, at 92, 134-136; N.T.,
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2 See Fortson, 165 A.3d at 14.
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2/15/2017, at 222-223, 263; N.T., 2/16/2017, at 381-383. The testimony
and evidence of these actions, namely, Morton’s shooting of Mangan was not
accidental, he was aware of what he was doing before, during, and after the
shooting, and he was proud of his actions demonstrate “a wickedness of
disposition, hardness of heart, [and] cruelty” and are sufficient for the jury to
find that Morton acted with malice. Yanoff, 690 A.2d at 264.
Morton argues that his actions were “consistent” with involuntary
manslaughter, in that he acted “recklessly or in a grossly negligent manner”
in causing the death of Mangan, 18 Pa C.S. § 2504(a). See Morton’s Brief at
16-19.
The jury was charged on the elements of involuntary manslaughter but
returned a verdict of murder in the third degree. Their verdict is supported
by the evidence presented at trial that Morton’s actions were more than
grossly negligent or reckless. See Commonwealth v. Jacoby, 170 A.3d
1065, 1078 (Pa. 2017) (“As the ultimate finder of fact, the jury was free to
believe some, all, or none of the Commonwealth’s evidence. The jury also
was free to resolve any inconsistencies or discrepancies in the testimony in
either party’s favor.”). Based on the foregoing, Morton is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2018
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