J-S65036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEVIN SMITH

Appellant No. 3579 EDA 2014

Appeal from the Judgment of Sentence November 14, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010586-2013

BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MARCH 09, 2016

Appellant Devin Smith appeals from the judgment of sentence entered 

in the Philadelphia County Court of Common Pleas following his jury trial 

conviction for murder of the third degree.1 We affirm.

The trial court set forth the relevant facts of this appeal as follows:

On February 8, 2013, sometime between 2:00 and 2:45 

p.m., [Appellant] punched and kicked Ramona Bell and 

slammed her onto the floor inside a house at 4731 Salem 

Street. After Ms. Bell fell to the floor, [Appellant] 

continued to assault her. There were several other people 

inside this “crack house” when the assault occurred. The 

evidence established that [Appellant] was a drug dealer 

and Ms. Bell was a drug user. Keith Bennett, who lived in 

the house, allowed people to use his house to sell and use 

drugs, so long as they paid him. According to one 

____________________________________________

1 18 Pa.C.S. § 2502(c).
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eyewitness, [Appellant] assaulted Ms. Bell because she 

allegedly arranged for someone to steal his gun and drugs. 

Another eyewitness recalled [Appellant] being on a cell 

phone discussing whether or not he should “get rid of” 

everyone in the house. After [Appellant] ended his assault 

on Ms. Bell, he walked back and forth over her unconscious 

body and yelled: “She fucked up, tried to get me set up. 

She deserved it. I just knocked her out.” When 

[Appellant] was told that the victim needed medical 

assistance, he said: “No, she all right. She’s asleep right 

now.” Shortly thereafter, [Appellant] left the house.

* * *

[Ms. Bell] was pronounced dead at 7:55 p.m.

Dr. Marlon Osbourne conducted an autopsy of decedent 

and testified at trial as an expert in forensic pathology. He 

concluded to a reasonable degree of medical certainty that 

the cause of Ramona Bell’s death was blunt head and 

chest trauma, and that the manner of death was homicide. 

Dr. Osbourne opined that decedent’s injuries were the 

result of a severe beating and that there were repeated 

blows to her head and other body parts. 

Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 12, 2016, at 2-3 

(citations to the record omitted).

A jury convicted Appellant of third degree murder on July 10, 2014. 

On November 14, 2014, the court sentenced Appellant to twenty (20) to 

forty (40) years’ incarceration. On December 15, 2014, Appellant filed a 

timely notice of appeal.2 On December 24, 2014, the trial court ordered 

____________________________________________

2 Because December 14, 2015 fell on a Sunday, Appellant’s appeal was 

timely. See Commonwealth v. Leatherby, 116 A.3d 73, 86 

(Pa.Super.2015) (“When computing the 30–day filing period ‘[if] the last day 

(Footnote Continued Next Page)
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Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). On January 12, 2015, Appellant timely filed 

a concise statement, but mislabeled the statement “Post Sentence Motions.”3 

Appellant raised the following issues in his erroneously labeled 

statement:

1. There was insufficient evidence presented at trial for 

the jury to render Devin Smith guilty of third degree 

murder.

2. That the fact witnesses presented had all recanted their 

testimony thus rendering their credibility unreliable and 

not suitable for presentation to the jury.

Appellant’s “Post Sentence Motions,” filed January 12, 2015 (verbatim).

Appellant raises the following issue in his brief:

[WHETHER THERE WAS] SUFFICIENT EVIDENCE 

PRESENTED AT TRIAL OF THIS MATTER TO PROVE THAT 

(Footnote Continued) _______________________

of any such period shall fall on Saturday or Sunday ... such day shall be 

omitted from the computation.’ 1 [Pa.C.S.] § 1908.”).

3 On April 24, 2015, the trial court filed an opinion that deemed all of 

Appellant’s issues waived for failure to file a Pa.R.A.P. 1925(b) statement. 

While the trial court was correct that a complete failure to file, or failure to 

timely file, a Pa.R.A.P. 1925(b) statement would result in waiver of 

Appellant’s claims on appeal, a finding of waiver does not end the trial 

court’s analysis or require it to ignore the issues raised. Commonwealth v. 

Thompson, 39 A.3d 335, 341 (Pa.Super.2012). “[If] counsel fails to file a 

Rule 1925(b) statement before the trial court files a Rule 1925(a) opinion, 

the opinion should note the ineffectiveness of counsel, permit counsel to file 

a statement nunc pro tunc and address the issues raised in a subsequent 

Rule 1925(a) opinion.” Id. We remanded to the trial court for the filing of 

a Pa.R.A.P. 1925(a) opinion addressing the issues raised in Appellant’s 

mislabeled concise statement, and the court complied. 
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[APPELLANT] WAS THE PARTICIPANT IN THE ASSAULT 

AND SUBSEQUENT DEATH OF RAMONA BELL[?]

Appellant’s Brief at 5.

Appellant attempts to challenge the sufficiency of the evidence for his 

third degree murder conviction. He claims that the jury convicted him based 

on conjecture and not on sufficient evidence.

When examining a challenge to the sufficiency of evidence, our 

standard of review is as follows:

The standard we apply in reviewing the sufficiency of the 

evidence is 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. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal 

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874 

A.2d 108, 120-21 (Pa.Super.2005)).
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Appellant was convicted under the following statute:

2502. Murder

(a) Murder of the first degree.--A criminal homicide 

constitutes murder of the first degree when it is committed 

by an intentional killing.

(b) Murder of the second degree.--A criminal homicide 

constitutes murder of the second degree when it is 

committed while defendant was engaged as a principal or 

an accomplice in the perpetration of a felony.

(c) Murder of the third degree.--All other kinds of 

murder shall be murder of the third degree. Murder of the 

third degree is a felony of the first degree.

18 Pa.C.S. § 2502. 

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. Malice consists of 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. 

Commonwealth v. Pigg, 571 A.2d 438, 441-42 (Pa.Super.1990), appeal 

denied, 581 A.2d 571 (Pa.1990) (internal quotations and citations omitted).

The elements of third degree murder, as developed by 

case law, are a killing done with legal malice but without 

specific intent to kill required in first degree murder. Malice 

is the essential element of third degree murder, and is the 

distinguishing factor between murder and manslaughter.

Commonwealth v. Cruz–Centeno, 668 A.2d 536, 539 (Pa.Super.1995). 

appeal denied, 676 A.2d 1195 (Pa.1996).
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Here, Appellant waived his challenge to the sufficiency of the evidence 

by filing a deficient concise statement of errors complained of on appeal. 

“If [an a]ppellant wants to preserve a claim that the evidence was 

insufficient, then the 1925(b) statement needs to specify the element or 

elements upon which the evidence was insufficient. This Court can then 

analyze the element or elements on appeal.” Commonwealth v. Williams, 

959 A.2d 1252, 1257 (Pa.Super.2008) (emphasis deleted). If the statement 

does not specify the allegedly unproven elements, the sufficiency issue is 

waived on appeal. Id. (noting that 1925(b) waiver is appropriate “despite 

the lack of objection by an appellee and despite the presence of a trial court 

opinion.”).

The instant 1925(b) statement does not specify any unproven 

elements. Therefore, Appellant has waived his sufficiency claim.

Moreover, even if Appellant had preserved his issue, it is devoid of 

merit. 

The trial court reasoned:

[T]here was sufficient evidence to prove than an unlawful 

and malicious killing occurred. The Commonwealth 

established that [Appellant] punched and kicked Ramona 

Bell, and then slammed her onto the floor. After she fell to 

the floor, [Appellant] continued to assault her. After 

assaulting the victim, [Appellant] paced over her 

unconscious body and made statements acknowledging his 

guilt. At trial, the assistant medical examiner concluded to 

a reasonable degree of medical certainty that the cause of 

Ramona Bell’s death was blunt head and chest trauma, 

and that the manner of death was homicide. The assistant 
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medical examiner further concluded that the decedent’s 

injuries were sustained by a severe beating and that there 

were repeated blows to her head and other body parts...

* * *

[Appellant’s] actions grossly deviated from the standard of 

conduct that a reasonable person would observe under 

these circumstances. To avenge an alleged theft, 

[Appellant] repeatedly punched and kicked the victim, and 

then slammed her to the floor, after which he continued to 

punch and kick her. By engaging in such conduct, 

[Appellant] consciously disregarded an unjustified and 

extremely high risk that such conduct would cause 

irreparable damage to a vital body organ and ultimately 

lead to the victim’s death.

Trial Court Pa.R.A.P. Opinion, at 11-12.

Thus, even if Appellant had preserved his sufficiency claim, we agree 

with the trial court that his claim lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2016