Com. v. Kiefer, B.

J-S45028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BENJAMIN CANE KIEFER
Appellant No. 2925 EDA 2016
Appeal from the Judgment of Sentence December 4, 2014
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000199-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 11, 2017
After a night of drinking, fighting, and crashing a car, Appellant,
Benjamin Kiefer, shot his brother, Kenneth, five times, resulting in Kenneth’s
death. At trial, Kiefer conceded that he had shot Kenneth to death, but
argued that he did so in self-defense. The jury convicted him of third-degree
murder.
In this nunc pro tunc appeal,1 Kiefer’s court-appointed counsel, Steven
E. Burlein, Esquire, seeks permission to withdraw as counsel. As such, he
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Kiefer’s direct appeal rights were restored nunc pro tunc pursuant to a Post
Conviction Relief Act proceeding.
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and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
review, we affirm the judgment of sentence and grant Attorney Burlein
permission to withdraw.
Attorney Burlein has complied with the mandated procedure for
withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating
Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594
(Pa. Super. 2010) (providing that counsel must inform client by letter of
rights to proceed once counsel moves to withdraw and append a copy of the
letter to the petition). Kiefer has not filed a response to counsel’s petition to
withdraw.
Counsel has identified three issues that Kiefer believes entitle him to
relief. First, Kiefer contends the trial court erred in discussing the shooting
death of a state trooper before charging the jury. Kiefer believes this
reference unfairly prejudiced him.
As counsel notes, there is no record of this statement in the transcripts
in the certified record. We do observe that the transcripts elide portions of
the opening statements by counsel and instructions from the trial court
through a mere notation of the time elapsed. However, even assuming that
Kiefer’s assertion is accurate, we can discern no reason to believe Kiefer was
unduly prejudiced.
There is no indication of an altercation with state police, or that police
animus played any role in this crime. Rather, the record clearly establishes
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that Kiefer and his larger brother engaged in physical altercations
throughout the night. After returning to Kiefer’s home, their dispute
continued, ultimately resulting in Kiefer shooting his brother five times. The
only issues at trial concerned Kiefer’s state of mind when he killed his
brother.
Under these circumstances, we conclude that any statement made by
the trial court to the jury regarding the shooting death of a state trooper was
harmless. We agree with counsel’s assessment that this issue is wholly
meritless.
Next, Kiefer wishes to challenge the sufficiency of the evidence
presented at trial. He claims the Commonwealth presented insufficient
evidence to support a finding that he killed his brother with malice.
Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most favorable to
the verdict winner, the evidence at trial and all reasonable inferences
therefrom are sufficient for the trier of fact to find that each element of the
crimes charged is established beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)
(citation omitted).
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“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Id. (citation omitted). Any
doubt raised as to the accused’s guilt is to be resolved by the fact-finder.
See id. “As an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record.” Commonwealth v. Kinney, 863
A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not
disturb the verdict “unless the evidence is so weak and inconclusive that as
a matter of law no probability of fact may be drawn from the combined
circumstances.” Bruce, 916 A.2d at 661 (citation omitted).
Murder in the third degree is an unlawful killing with malice, but
without the specific intent to kill. See 18 Pa.C.S.A. § 2502(c). See also
Commonwealth v. Santos, 876 A.2d 360, 363–364 (Pa. 2005);
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).
Kiefer believes the evidence at trial was insufficient to establish that he
acted with malice. Malice is defined 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....[”] [M]alice may be found where
the defendant consciously disregarded an unjustified and
extremely high risk that his actions might cause serious
bodily injury.
Id. (quoting Commonwealth v. Cottam, 616 A.2d 988, 1004 (Pa. Super.
1992)) (brackets in original). Malice may be established by intentionally
shooting a victim in a vital part of his body. See Commonwealth v. Payne,
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868 A.2d 1257, 1261 (Pa. Super. 2005). Additionally, the finder of fact may
infer malice by considering the totality of the circumstances. See
Commonwealth v. Thomas, 656 A.2d 514, 516 (Pa. Super. 1995).
At trial, the Commonwealth presented the testimony of Keifer’s and
Kenneth’s brother, Kevin. Kevin testified that after Kiefer drove his car into a
ditch, the brothers decamped and walked to Kiefer’s home. See N.T., Jury
Trial, 9/15/14, at 10. On the walk home, Kiefer repeatedly threatened to kill
Kenneth. See id.
Kiefer walked into the house first. See id., at 11. Kenneth paused
before entering, and told Kevin that he was worried and did not want to go
into the house. See id. He asked Kevin to call the police “if anything
happened[.]” Id. Kenneth and Kevin walked into the home approximately
five to ten minutes after Kiefer did. See id.
Kenneth and Kiefer began arguing again almost immediately. See id.
Kiefer repeatedly requested that Kenneth let him punch Kenneth in the face,
because “he was mad that he didn’t win the fight, and [Kenneth] said no.”
Id.
Eventually, the argument ended. Kenneth walked to the living room,
while Kiefer went to his bedroom. See id. Kevin then saw Kiefer walk into
the living room, holding a gun behind his back. See id., at 12. As Kiefer
approached Kenneth, Kenneth stood up and put his hands in the air. See
id., at 13.
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Kiefer shot Kenneth five times. See id., at 14. After the first or second
shot, Kenneth fell to the ground, screaming. See id. Kiefer then told Kevin
that he had to tell the police that it had been self-defense. See id., at 15.
This testimony is more than sufficient to support a finding that Kiefer
acted with malice. Assuming that Kiefer desires to argue that the
Commonwealth did not disprove self-defense, we further conclude that this
testimony, if believed, is sufficient to do so. As a result, we agree with
counsel’s assessment that this issue is wholly meritless.
Finally, Kiefer wishes to argue that the trial court abused its discretion
by imposing a manifestly excessive sentence. “A challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
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Here, Kiefer preserved his issue through a timely motion for
reconsideration of the sentence imposed, and filed a timely appeal. Counsel
has included the required Rule 2119(f) statement. We therefore review the
Rule 2119(f) statement to determine if Kiefer has raised a substantial
question.
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. (citation
omitted); see also Pa.R.A.P. 2119(f).
Kiefer “must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.” McAfee,
849 A.2d at 274 (citation omitted). That is, “the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process.”
Tirado, 870 A.2d at 365.
Kiefer’s Rule 2119(f) statement claims that the trial court imposed a
manifestly excessive sentence. A generic claim that a sentence is excessive
does not raise a substantial question for our review. See, e.g.,
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013). Even if we
review Kiefer’s post-sentence motion to determine if any other arguments
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against the discretionary aspects of his sentence were preserved, we find
that it merely contains a boilerplate allegation of excessiveness. Thus, Kiefer
has failed to raise a substantial question regarding his sentence. We agree
with counsel that this issue is wholly meritless.
Having concluded that all of the issues identified by counsel are wholly
meritless, and after an independent review of the record, we agree that
Kiefer’s judgment of sentence should be affirmed, and that counsel be
granted permission to withdraw.
Judgment of sentence affirmed. Permission to withdraw as counsel
granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
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