Com. v. Elliott, M.

J-S65006-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL ELLIOTT
Appellant No. 2064 EDA 2013
Appeal from the Judgment of Sentence Entered March 5, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005442-2010
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 15, 2014
Appellant, Michael Elliott, appeals from the judgment of sentence
entered March 5, 2013, by the Honorable Lillian Harris Ransom, Court of
Common Pleas of Philadelphia County. We affirm.
The trial court summarized the facts of this case as follows.
These charges arose out of an incident that occurred on
April 7, 2010, at approximately 2:00 AM. Earlier that morning,
the decedent, Rachel Marcelis (“Marcelis”)[,] and her friend, Gina
Fehr (“Fehr”)[,] were sitting in Fehr’s car smoking marijuana,
outside at Fat Pete’s Bar in Northeast Philadelphia. As they were
smoking, Fehr’s boyfriend, David DiPersio (“DiPersio”)[,] and
[Elliott] came to the car and began chatting with Fehr and
Marcelis. DiPersio and [Elliott] got into Fehr’s car and sat in the
driver’s seat and passenger[’]s seat, respectively. Fehr then sat
on DiPersio’s lap while Marcelis sat leaning against the
dashboard of the car on [Elliott’s] lap, with the doors open. The
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S65006-14
four (4) individuals smoked marijuana and as they did, [Elliott]
pulled out a gun. Fehr asked [Elliott] to put the gun away and
[Elliott] stated that he was licensed to carry. [Elliott] then
removed the clip from the gun and the gun was fired. Marcelis
was hit with one (1) bullet to the chest and immediately asked
the others to call [911]. After seeing Marcelis hit, [Elliott] got
out of the car, causing Marcelis to fall into the street, and ran to
his mother’s house at 6123 Hegerman Street in Wissinoming.
Upon arriving at his mother’s house, [Elliott] went to the
basement and changed his clothes. [Elliott] then came upstairs
where he spoke with his mother before Police Officers Andre
Hudgens (“Hudgens”) and Ashley Johnson (“Johnson”) arrived.
Hudgens and Johnson questioned [Elliott] regarding the incident
at his mother’s house and then transported [him] to the
Homicide Unit.
Medics responded to the [911] call and Marcelis was
transported to the Aria Health – Frankford Campus [where she
was later pronounced dead].
Trial Court Opinion, 11/27/13 at 2-3.
On January 17, 2013, a jury convicted Elliott of third degree murder,1
possessing a firearm without a license,2 and carrying a firearm on a public
street in Philadelphia.3 On March 5, 2013, the trial court sentenced Elliott to
an aggregate term of 15 to 30 years’ imprisonment. Elliott filed a post-
sentence motion for reconsideration of sentence, which was denied by
operation of law. This timely appeal followed. Both Elliott and the trial court
have complied with Pa.R.A.P. 1925(a) and (b).
On appeal, Elliott challenges both the sufficiency and weight of the
evidence in support of his conviction of third degree murder. Regarding
____________________________________________
1
18 Pa.C.S.A. § 2502(c).
2
18 Pa.C.S.A. § 6106.
3
18 Pa.C.S.A. § 6108.
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J-S65006-14
Elliott’s challenge to the weight of the evidence, we note that “a weight of
the evidence claim must be preserved either in a post-sentence motion, by a
written motion before sentencing, or orally prior to sentencing.”
Commonwealth v. Thomson, 93 A.3d 478, 490 (Pa. Super. 2014) (citing
Pa.R.Crim.P. 607). Failure to do so will result in waiver of the claim on
appeal. See id.Instantly, Elliott failed to raise a challenge to the weight of the
evidence to support his conviction either at sentencing or in his post-
sentence motion for reconsideration of sentence filed March 15, 2013.
Therefore, this claim is waived.
We proceed to examine Elliott’s remaining claim on appeal. When
determining if evidence is sufficient to sustain a conviction, our standard of
review is well-settled.
A claim challenging the sufficiency of the evidence is a question
of law. 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. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim the court is required to view the evidence 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. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011)
(citation omitted).
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
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J-S65006-14
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth’s
burden may be met 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.
Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (quoting
Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)).
“[T]he entire record must be evaluated and all evidence actually received
must be considered.” Stokes, 38 A.3d at 854 (citation omitted).
Third degree murder is defined as all other murders that are not first
or second degree murder:
Third degree murder occurs when a person commits a killing
which is neither intentional nor committed during the
perpetration of a felony, but contains the requisite malice. Malice
is not merely ill-will but, rather, wickedness of disposition,
hardness of heart, recklessness of consequences, and a mind
regardless of social duty. Malice may be inferred from the use of
a deadly weapon on a vital part of the victim’s body. Further,
malice may be inferred after considering the totality of the
circumstances.
Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013) (citation
omitted).
With our standard of review in mind, we have examined the certified
record, the briefs of the parties, Judge Ransom’s memorandum opinion, and
the applicable law, and we find that Judge Ransom ably and methodically
addressed Elliott’s challenge to the sufficiency of the evidence. We agree
with the court that the evidence established that Elliott acted with the malice
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J-S65006-14
required for third degree murder in recklessly brandishing a loaded weapon
in a car occupied by three other people, regardless of whether or not Elliott
intended to harm the decedent. See Commonwealth v. Seibert, 622 A.2d
361, 365 (Pa. Super. 1993) (“An intentional act which indicates recklessness
of consequences and a mind regardless of social duty is sufficient, even if
there was no intent to harm another.”). Accordingly, we affirm on the basis
of Judge Ransom’s memorandum opinion. See Trial Court Opinion,
11/27/14 at 3-5.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2014
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f\LED
NOV 2 ~ 2013
IN THE COURT OF COMMON PLEAS OF PHILADELPIDA . ~Jnli
~IRST JUDICIAL DISTRICT OF PENNSYLVANIACrim\n~\.~POP:~;~~1 i~~i p/.I
I CRIMINAL TRIAL DIVISION first JUd\Cla, kh V '
COMMONWEALTFI OF CP-51 -CR-0005442-2010
PENNSYLVANIA
CP-51-CR-0005442-2010 Comm. v. Elliott, Michael
Opinion
v.
11111111111111 11111111111
MICHAEL 7090085241
ELLIOT,
APPELLANT SUPERIOR CT : 2064 EDA 2013
OPINION
RANSOM, 1. November 27, 2013
On January 17, 2013 , Appellant, Michael Elliot, was found guilty, by a jury sitting before
this Court, of one (1) count of third degree murder, a felony of the first degree; one (1) count of
Violating the Uniform Firearms Act ("VUFA") § 6106, a felony of the third degree; and, one (1)
count ofVUFA § 61Q8 , a misdemeanor of the first degree . On March 5, 2013 , this Court
I
rd
sentenced the appellant to thirteen to twenty-eight (13-28) years for the 3 degree murder
conviction and one to, two (1-2) years incarceration for each VUF A conviction to run
consecutively, for a cumulative sentence of fifteen (15) to thirty (30) years incarceration.
A timely post lsentence Motion was filed on March 15,2013, and was denied by
operation oflaw on July 16, 2013. On July 18, 2013 , Appellant filed a timely Notice of Appeal.
On August 12, 2013 , after ascertaining that all notes of testimony were available, this Court
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), ordered appellant to file a self-
contained and intelligible statement of errors complained of on appeal. On September 3, counsel
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filed a 1925(b) statement of errors complained of on appeal to this Court.
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In his 1925(b) statement, the appellant raises the following issues:
(1) The Defendant must receive a new trial on the charges of murder in the third degree
and related offenses as the Commonwealth failed to prove malice, as this was an
accidental shooting, where a yOlll1g man was showing off his firearm and accidentally
shot and killed a female friend . Without malice, there is no murder.
(2) The Defendant must receive a new trial as the verdict is not supported by the greater
weight of the evidence, which did not establish malice. The verdict was based on
speculation, conjecture and sUl111ise, all in violation of Commonwealth vs. Karkaria,
625 A. 2d 1167 (Pa. 1993).
FACTS
These charges arose out of an incident that occurred on April 7, 2010, at approximately
2:00 AM. Earlier that morning, the decedent, Rachel Marcelis ("Marcelis") and her friend , Gina
Fehr ("Fehr") were sitting in Feln"s car smoking marijuana, outside of Fat Pete' s Bar in
Northeast Philadelphia. As they were smoking, Fehr' s boyfriend, David DiPersio ("DiPersio")
and Appellant came to the car and began chatting with Fehr and Marcelis. DiPersio and
Appellant got into Feln"s car and sat in the driver's seat and passengers seat, respectively. Fehr
then sat on DiPersio's lap while Marcelis sat leaning against the dashboard of the car on
Appellant ' s lap, with the doors open. The four (4) individuals smoked marijuana and as they
I
did, Appellant pulled out a gun. FeIn' asked Appellant to put the gun away and Appellant stated
I
that he was licensed to carry. Appellant then removed the clip from the gun and the gun was
I
fired. Marcelis was hit with one (1) bullet to the chest and immediately asked the others to call
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I
2
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9-1-1. After seeing Marcelis was hit, Appellant got out of the car, causing Marcelis to fall into
the street, and ran to his mother's house at 6123 Hegerman Street in Wissinoming. Upon arriving
at his mother's house, Appellant went to the basement and changed his clothes. Appellant then
came upstairs where he spoke with his mother before Police Officers Andre Hudgens
("Hudgens") and Ashley Johnson ("Johnson") arrived. Hudgens and Johnson questioned
Appellant regarding the incident at his mother's home and then transported Appellant to the
Homicide Unit.
Medics responded to the 9-1-1 call and Marcelis was transported to Aria Health -
Frankford Campus. Marcelis was shocked tlu'ee (3) times during transit and was given six (6)
rounds of ACLS medication before being pronounced dead at 2:45 AM.
LEGAL DISCUSSION
l
The appellant raises two (2) issues on appeal. The first issue is:
The Defendant must receive a new trial on the charges of murder in the third degree and
related offenses as the Commonwealth failed to prove malice, as this was an accidental
shooting, where a young man was showing off his firearm and accidentally shot and killed
a female friend. Without malice, there is no murder.
Third Degree Murder is defined as all other kinds of murder that are not First or Second
Degree Murder. I The elements of third-degree murder, as developed by case law, are a killing
done with legal malice. Malice, express or implied, is an essential element of murder, and is the
distinguishing factor between murder and the lesser degrees of homicide. Commonwealth v.
MacArthur, 427 Pa. Super. 409, 413,629 A.2d 166,167(1993). In order to prove that a
I See [8 Pa.C.S .A. § 2502(c)
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defendant is guilty of third degree murder, the Commonwealth must establish that the defendant
acted with malice. Commonwealth v. Martin, 433 Pa. Super. 280, 640 A.2d 921 (1994). Malice
exists where there is a particular ill-will and where "there is a wickedness of disposition,
hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless
of social duty." Commonwealth v. Bigelow, 416 Pa. Super. 449,454,611 A.2d 301 , 304 (1992),
citing Commonwealuh v. Smouse, 406 Pa. Super. 369, 594 A.2d 666 (1991). Malice may be
inferred from the attending circumstances of the act resulting in the death. One such
circumstance is evidence that the defendant used a deadly weapon upon a vital part of the
victim's body; this inference alone is sufficient to establish malice. Commonwealth v. Lee, 426
Pa. Super. 345 , 350, 626 A.2d 1238, 1241 (Pa. Super. 1993). An intentional act indicating
recklessness of consequences and disregard of social duty is sufficient, even if there was no
intent to harm another, for finding of third degree murder. Com. v. Seibert, 424 Pa. Super. 242,
622 A.2d 361 (1993) .
In the instant matter, the Commonwealth presented sufficient evidence to find the
Appellant acted with the malice required for third degree murder. Appellant gave a statement to
the police, which was read into the record by Detective James Burns. (N.T. 1116/13, 50-71). In
his statement, Appel.lant stated he was with Marcelis and her friends the night Marcelis was
killed. (N.T. 1/16/13 at 63). He stated he had the gun in his possession, took the magazine Ollt,
and after doing so, the gun went off. (Id.). Appellant stated that Marcelis was sitting partially in
his lap when she was shot. (N.T. 1/16/13 at 64). In his statement, when asked whose gun was
used to kill Marcelis, k ppellant stated "I had it with me because I was robbed Sunday by my
boys and they threatened me and my family." (N.T. 1116/13 at 65). Appellant also stated that he
saw Marcelis fall, panicked, and ran to his mother's house. (N.T. 1/16/13 at 63). Appellant
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stated that when he arrived at his mother' s house, he went to the basement, changed his clothes,
and then the police aL ived. (N.T. 1116/13 at 66). In Seibert, the Appellant contended that he
should not have been found guilty because he was friends with the decedent, had no ill will
towards the decedenn, and did not intend to kill the decedent. The Superior Court ruled that the
intentional act of pOiL ing the gun at the decedent was sufficient to find legal malice necessary
for third degree murder because Appellant Seibert's intentional act showed recklessness of
consequences and disregard for social duty, components of legal malice. Seibert is very similar
to the instant matter. While Appellant may not have had ill will towards Marcelis, his
brandishing of a gun and handling of the weapon in a confined space with others present was an
intentional act that e~emplified recklessness.
In the instant case, the jury was free to infer the malice necessary to sustain a conviction
for third degree murder based on Appellant's reckless handling of a gun which resulted in the
death of Marcelis.
The second issue the appellant raises is:
The Defendant must receive a new trial as the verdict is not supported by the greater
weight of the evidence, which did not establish malice. The verdict was based on
speculation, conjecture and surmise, all in violation of Commonwealth vs. Kariml-ia, 625 A.
2d 1167 (Pa. 1993).
The guilty verdict of murder in the third degree was not against the weight of the
evidence. The standard of appellate review for a claim that the verdict was against the weight of
the evidence is limited to a determination of whether the trial court abused its discretion in
denying the appellant' s post verdict motion i.e. that the fact finder's verdict "shocked the
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conscience." Commonwealth v. Lloyd, 2005 Pa. Super. 236, P12, 878 A.2d 867, 872 (2005).
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or
none of the evidence and to determine the credibility ofthe witnesses. Commonwealth v. Small,
559 Pa. 423,435,741 A.2d 666, 672 (Pa. 1999). A new trial should not be granted because of a
mere conflict in testimony or because the trial judge would have arrived at a different conclusion
on the same facts. Commonwealth v. Brown, 538 Pa. 410, 648 A2d. 1177, 1191 (Pa. 1994).
In the instant Icase, the jury's verdict of guilty does not shock the conscience. Appellant
cites Commonwealth. v. Karkaria, 533 Pa. 412, 420, 625 A.2d 1167 (1993). In Karkaria, the
PelU1sylvania Supreh1e Court found that the evidence failed to establish that the defendant forced
the victim to submit to sexual intercourse during the dates specified in the indictment as the
victim's testimony was vague, and contradictory, and the Commonwealth failed to present
sufficient evidence linking Appellant Karkaria to the 300 acts of sexual intercourse claimed by
the victim. The pel1lJsylvania Supreme Court ruled that criminal prosecution also requires proof
beyond a reasonable doubt that the accused conm1itted the offense charged at the time specified
within the indictmeFt. Id. at 1170. The instant matter should be distinguished from Karkaria
because the Commonwealth in the present case presented proof beyond a reasonable doubt that
the accused committed the offense.
The Commonwealth presented the statement of Appellant, in which he admitted holding
the gun as it went off and the bullet hit Marcelis, resulting in her death.2 The Commonwealth
also presented an eye witnesses to the crime, Gina Felu' ("Felu·"). Felli' stated that she and
Marcelis were friendslfor about four (4) months before Marcelis was killed. (N.T. 1115113 at 84).
Felu' testified that while in the car with Appellant, Marcelis, and DiPersio, she told Appellant to
2 See first issue analysis, supra
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put the gun away but that Appellant stated he was licensed to carry. (N.T. 1115113 at 90). Fehr
stated that she watched Appellant take the clip out of the gun and the next thing she remembered
was the "gun going l ff'. (N.T. 1115113 at 90). After the gun was fired, Fehr stated Marcelis
grabbed her chest and Marcelis asked them to call an ambulance. (N.T. 1115113 at 91). Felu'
testified that after Marcelis was shot, Appellant jumped out of the car and Marcelis hit the
ground. (N.T. 1/15113 at 91). Dr. Gary Collins ("Dr. Collins"), Deputy Chief Medical Examiner
at the Philadelphia Medical Examiner's Office also testified on behalf of the Commonwealth.
(N.T. 1116113 at 35). Dr. Collins determined that Marcelis died from a gunshot wound to the
chest, which hit Marcelis ' s aorta resulting in internal bleeding, and ruled the manner of death
homicide. (N.T. 1116113,42-44) . Therefore, the verdict of guilty in the instant matter does not
I
shock the conscience.
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CONCLUSION
For tl~e reasons set forth above, the decision of this Court should be affirmed.
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Re: Commonwealth vs. Michael Elliot
CP-SI-CR-000S442-2010
2064 EDiA 2013
TYPE: OPINION
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Court Opinion upon the
person(s), and in the manner indicated below, which service satisfies the requirements of
Pa.R.Crim.P. 114:
Defendant: Michael Elliot
KY-5825
SCI Frackville
1111 Altamont Boulevard
Frackville, PA 17931-2699
Type of Service: ( ) Personal Service ( ) First Class Mail (X) Other: Celiified
Mail
Defense Counsel: Lee Mandell, Esquire
Suite 1312
42 S. 15 th Street
Philadelphia, PA 19102
Type of Service: ( ) Personal Service (X) First Class Mail ( ) Other: _ _ __
District Attorney: Hugh 1. Burns Jr. , Esquire
Philadelphia District Attorney' s Office
Widener Building - Tlu'ee South Penn Square
Philadelphia, PA 19102
Type of Service: I () Personal Service (X) First Class Mail ( ) Other: _ _ __
Date: November 27.2013
. lIe A. JOhnSOl I
Law Clerk to Hon. Lillian H. Ransom