J.S43037/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOHN M. SMALLWOOD, :

:

Appellant : No. 2231 EDA 2013

Appeal from the Judgment of Sentence July 26, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0006178-2012

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 07, 2015

Appellant, John M. Smallwood, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following a jury 

trial and his convictions for murder in the first degree1and possession of an 

instrument of crime2(“PIC”). Appellant contends (1) the trial court erred in 

refusing to permit him to represent himself, (2) the evidence was insufficient 

to find him guilty of murder in the first degree, (3) the verdict on the charge 

of murder in the first degree was against the weight of the evidence, and (4) 

counsel was ineffective during closing argument. We affirm.

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2502(a).

2 18 Pa.C.S. § 907(a).
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The trial court summarized the facts of this case as follows:

These charges arose out of an argument between 

Appellant and his lover of approximately six (6) years, 

whom Appellant lived with off and on. The decedent, 

Shawn Andrews (“Andrews”), was killed on Thursday, 

March 22, 2012 at Andrews’ apartment at 19th and 

Bainbridge Streets. At approximately 2 a.m. that morning, 

Appellant and Andrews were getting high with female 

friends. After the females left, Appellant and Andrews 

began arguing over the purchase of additional drugs. This 

argument [led] to Andrews telling Appellant he had to 

leave. Appellant refused to leave and as Appellant 

proceeded past Andrews towards the bedroom, Andrews 

pushed him. Their argument grew into a physical 

altercation. Andrews picked up a pair of scissors, 

Appellant grabbed a knife, and the two men began to fight. 

Appellant initially stabbed Andrews in the side of the jaw 

and Andrews began to scream. Appellant stabbed 

Andrews approximately seven (7) times in the head, neck, 

and back until the knife bent, causing Andrews to fall to 

the ground. As Andrews lay on his back on the floor 

screaming, Appellant grabbed a clothing iron, and got on 

top of Andrews. Appellant beat Andrews in the head with 

the iron until the metal plate from the iron detached, 

breaking the iron. Appellant struck Andrews 

approximately 28 times with the iron.

As Andrews lay on the floor bleeding out, Appellant 

grabbed a blanket from inside the apartment, wrapped 

Andrews’ body, and [dragged] Andrews into the closet in 

the bedroom. After doing so, Appellant slept in Andrews’ 

bed and awoke the next morning on Friday, March 23, 

2012. Before Appellant left Andrews’ apartment, he 

turned the thermostat down to fifty degrees Fahrenheit 

(500F) to cover the smell of Andrews’ dead body. 

Appellant then collected several items including bloody 

clothes and the knife he used to kill Andrews, placed them 

in a blue bag, and dumped the bag in a trash can at the 

69th Street Market-Frankford Line Terminal.

On Friday, March 23, 2012, after Andrews failed to 

meet with his friend of twenty-five (25) years, Seavin 

Burnett (“Burnett”), and failed to answer Burnett’s 
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numerous phone calls, Burnett went to Andrews’ 

apartment with his roommate, Derrick Harrison 

(“Harrison”), to check on Andrews. Burnett used his key 

to gain access to the apartment as Harrison waited 

outside. Burnett opened the door and noticed it was dark 

and cold. Burnett called out for Andrews a few times with 

no response and then locked the door and left with 

Harrison. Burnett and Harrison returned to Andrews’ 

apartment the following day, Saturday, March 24, 2012, in 

the afternoon. Both Burnett and Harrison entered 

Andrews’ apartment and once they were inside, noticed 

sheets, blankets and a red liquid on the floor in the living 

room area. Harrison thought it might be blood so both 

Burnett and Harrison went back to their car and began 

making phone calls to the area hospitals as they rode 

towards their home, believing Andrews had been hurt and 

possibly gone to a hospital to get aid. No hospital had a 

record of Andrews having received treatment. When they 

could not locate Andrews at the area hospitals, Burnett 

called 911. Burnett explained to the operator that he had 

been to Andrews’ apartment, that things looked unusual, 

and that there appeared to be blood on the floor. The 911 

operator asked Burnett if he would go back to Andrews’ 

apartment and wait for the police; Burnett agreed.

In less than five (5) minutes from the time the call was 

dispatched by the 911 operator, Philadelphia Police Officer 

Carmen Palmiero (“Officer Palmiero”) and her partner, 

Officer Sydemy Joanis (“Officer Joanis”) arrived at 

Andrews’ apartment and met Burnett and Harrison. Officer 

Palmiero and Officer Joanis advised Burnett and Harrison 

to stay outside as they entered Andrews’ apartment. 

Officer Palmiero and Officer Joanis noticed the cold 

temperature of the apartment, blood on the sink and on 

the floor in the bathroom on the first floor, identifying a 

footprint as well, which they considered to be “red flags” of 

a possible crime. Officers Palmiero and Joanis then 

headed downstairs. They noticed a large amount of blood 

on the floor and footprints, so they began walking across 

the furniture as to not disturb the potential crime scene. 

Officers Palmiero and Joanis, with guns drawn, checked 

the kitchen for potential suspects and after they cleared 

the kitchen, they headed into the bedroom where they 

noticed a large red print at the bottom of the closet door. 
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Officer Joanis kept his gun drawn as Officer Palmiero 

opened the closet door. Inside the closet, they found a 

large blanket at the bottom. The officers pulled back the 

blanket and uncovered the body of a black male, later 

identified as Andrews, whom they believed had been dead 

for a few days at that point. Paramedics arrived as they 

were uncovering Andrews’ body and Andrews was 

pronounced dead on the scene by Medic 40 at 5:40 p.m.

Trial Ct. Op., 12/20/13, at 3-5.

Appellant was sentenced to a mandatory sentence of life in prison 

without the possibility of parole. This timely appeal followed. Appellant filed 

a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of 

on appeal and the trial court filed a responsive opinion.

Appellant raises the following issues for our review:

I. Is [Appellant] entitled to a new trial as a result of court 

error where the court failed and refused to permit [him] to 

represent himself, and where there was no good reason for 

such failure?

II. Is [Appellant] entitled to an arrest of judgment on the 

charge of Murder in the First Degree where the 

Commonwealth did not prove its case beyond a reasonable 

doubt; where the Commonwealth did not establish the 

element of the crime such as malice, premeditation and a 

specific intent to kill; and where there is insufficient 

evidence to sustain the verdict?

III. Is [Appellant] entitled to a new trial on the charge of 

Murder in the First Degree as the verdict is not supported 

by the greater weight of the evidence?

IV. Is [Appellant] entitled to a new trial as the result of 

palpable and obvious ineffective assistance of counsel 

during closing argument?

Appellant’s Brief at 3.
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First, Appellant contends the trial court violated his constitutional right 

to self-representation when it found his waiver of the right to counsel was 

not knowing, intelligent and voluntary. Appellant’s Brief at 7.

We review the trial court’s denial of a defendant’s request to proceed 

pro se for an abuse of discretion. Commonwealth v. El, 977 A.2d 1158, 

1167 (Pa. 2009). The Pennsylvania Supreme Court has “defined a court’s 

discretion as the foundation of reason, as opposed to prejudice, personal 

motivations, caprice or arbitrary actions. An abuse of that discretion is not 

merely an error of judgment, but . . . [a] manifestly unreasonable . . . result 

of partiality, prejudice, bias or ill will.” Id. (quotation marks and citation 

omitted). 

A criminal defendant’s right to counsel under the 

Sixth Amendment includes the concomitant right to 

waive counsel’s assistance and proceed to represent 

oneself at criminal proceedings. Faretta v. California, 

422 U.S. 806 [ ]. The right to appear pro se is 

guaranteed as long as the defendant understands the 

nature of his choice. In Pennsylvania, Rule of Criminal 

Procedure 121 sets out a framework for inquiry into a 

defendant’s request for self-representation. 

Pa.R.Crim.P. 121. Where a defendant knowingly, 

voluntarily, and intelligently seeks to waive his right to 

counsel, the trial court, in keeping with Faretta, must 

allow the individual to proceed pro se. See 

Commonwealth v. Starr, [ ] 664 A.2d 1326, 1335 

([Pa.] 1995) (holding that a defendant must 

demonstrate a knowing waiver under Faretta). See 

also Commonwealth v. McDonough, [ ] 812 A.2d 

504, 508 ([Pa.] 2002) (concluding that Faretta

requires an on-the-record colloquy in satisfaction of 

Pa.R.Crim.P. 121, which colloquy may be conducted by 

the court, the prosecutor, or defense counsel.)
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The right to waive counsel’s assistance and continue 

pro se is not automatic however. Rather, only timely 

and clear requests trigger an inquiry into whether the 

right is being asserted knowingly and voluntarily. . . . 

Thus, the law is well established that “in order to invoke 

the right of self-representation, the request to proceed 

pro se must be made timely and not for purposes of 

delay and must be clear and unequivocal.” 

Commonwealth v. Davido, [ ] 868 A.2d 431, 438 

(2005) [ ] ([Pa.] 2005).

Id. at 1162–63 (some citations and footnotes omitted).

Pa.R.Crim.P. 121 provides in pertinent part:

(2) To ensure that the defendant’s waiver of the right to 

counsel is knowing, voluntary, and intelligent, the judge or 

issuing authority, at a minimum, shall elicit the following 

information from the defendant:

(a) that the defendant understands that he or she 

has the right to be represented by counsel, and the 

right to have free counsel appointed if the defendant 

is indigent; 

(b) that the defendant understands the nature of the 

charges against the defendant and the elements of 

each of those charges; 

(c) that the defendant is aware of the permissible 

range of sentences and/or fines for the offenses 

charged; 

(d) that the defendant understands that if he or she 

waives the right to counsel, the defendant will still be 

bound by all the normal rules of procedure and that 

counsel would be familiar with these rules; 

(e) that the defendant understands that there are 

possible defenses to these charges that counsel 

might be aware of, and if these defenses are not 

raised at trial, they may be lost permanently; and 
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(f) that the defendant understands that, in addition 

to defenses, the defendant has many rights that, if 

not timely asserted, may be lost permanently; and 

that if errors occur and are not timely objected to, or 

otherwise timely raised by the defendant, these 

errors may be lost permanently.

Pa.R.Crim.P. 121(2)(a-f).

Our Supreme Court in El held:

 

We examine first whether [the a]ppellant’s request for 

self-representation was a timely one. If it was, [the 

a]ppellant was entitled to a “Faretta colloquy,” in 

satisfaction of Rule 121, to ascertain on the record 

whether his request to waive counsel’s assistance was 

knowing, voluntary, and intelligent. Generally, the courts 

of this Commonwealth have agreed with the federal courts 

and those of our sister states that a request for pro se

status is timely when it is asserted before “meaningful trial 

proceedings” have begun. Commonwealth v. Jermyn, [ 

] 709 A.2d 849, 863 ([Pa.] 1998) (noting with approval the 

Superior Court’s reliance on United States v. Lawrence, 

605 F.2d 1321 (4th Cir.1979)). See Commonwealth v. 

Vaglica, [ ] 673 A.2d 371, 373 ([Pa. Super.] 1996) 

(adopting “meaningful trial proceedings” standard utilized 

in Lawrence). In the context of a jury trial, the 

consensus is that proceedings become “meaningful” as 

soon as the selection of jurors begins. 

El, 977 A.2d at 1163 (some citations omitted).

The right to self-representation can be waived. Our Supreme Court 

has stated:

All defendants, even those who may display the 

potential to be disruptive, have the right to selfrepresentation. Commonwealth v. Africa, [ ] 353 A.2d 

855, 864 ([Pa.] 1976). In such instances, however, it is 

advisable that stand-by counsel be appointed. Id. . . . As 

explained in Africa, in such circumstances:
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The court should explain to the defendant the 

standards of conduct he will be expected to observe. 

If the defendant misbehaves, he should be 

warned that he will be removed from the court, 

his right to represent himself will be considered 

waived, and the trial will continue in his 

absence with standby counsel conducting the 

defense. If the defendant again misbehaves, these 

measures should be taken. The defendant must be 

made to realize that his disruptive tactics will result 

only in his exclusion from the courtroom. His case 

will be tried according to law, in an attempt to do 

justice, whether he cooperates or not.

Id. . . .

Commonwealth v. Abu-Jamal, 720 A.2d 79, 109 (Pa. 1998) (emphasis 

added). 

Instantly, the trial court opined that it

attempted to colloquy [Appellant] regarding his request to 

waive his right to counsel and proceed pro se. Throughout 

these proceedings, Appellant was unwilling to cooperate 

and was disruptive. When this [c]ourt attempted to 

colloquy Appellant, Appellant replied “Don’t say shit to me” 

and voluntarily exited the courtroom. After this incident, 

Appellant returned to the courtroom where this [c]ourt 

again attempted to colloquy [him] regarding his request to 

represent himself and to ensure that his waiver of counsel 

was knowing, voluntary, and intelligent. Taking into 

consideration the severity of the crimes with which 

Appellant was charged and the possible sentence of 

mandatory life without parole that was faced by Appellant, 

this [c]ourt determined that the responses Appellant 

provided during the colloquy did not satisfy the knowing, 

voluntary, and intelligent requirements for waiver of 

counsel.

Trial Ct. Op. at 10 (citations to record omitted). We agree no relief is due.
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In the case sub judice, on the day the jury was to be selected, while 

the court was hearing pre-trial motions, Appellant stated he did not want 

counsel to represent him. N.T., 7/22/13, at 10. The Court instructed 

Appellant to “[b]e quiet.” Id. Appellant responded: “I don’t want this guy 

representing me.” Id. The court continued hearing pre-trial motions.

Appellant again interrupted the proceedings and stated: “Your Honor, I 

don’t want this man to defend me. The Dude is not going to be my lawyer. 

I don’t trust him. I don’t believe in him. He’s not been trying to help me. 

I’ll get my own attorney.” Id. at 13. Appellant and the court continued the 

discussion until Appellant was excused from the courtroom following the 

judge’s admonition that the trial would “proceed in absentia . . . .” and 

Appellant’s statement: “Y’all tripping.” Id. at 18. 

Pre-trial motions continued and Appellant returned to the courtroom. 

The court officer attempted to administer the oath and Appellant refused to 

be sworn in. Id. at 23. The court began to explain the jury trial procedure 

to him. Id. at 24-25. Appellant interrupted and asked if he could represent 

himself. Id. at 26. The court stated that he could not represent himself “at 

this point.” Id. Appellant responded:

Come on. My life is on the line. You telling me I can’t 

defend myself. I don’t want him as my attorney. So when 

I come back on appeal and get a second trial─you know, 

this shit is a sham. I don’t know if y’all have some money 

involved in this shit or not, but this shit is a sham. I don’t 

want him. He’s an ineffective counsel. I do not want him 

as my attorney. I’ll get my own. Give me seven days. I 
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don’t want him. All right. Then leave me the fuck alone. 

Take me back to jail. 

The Court: All right. Let me just say this.

[Appellant]: Don’t say shit to me.

The Court: . . . The record will reflect that [Appellant] left 

the courtroom apparently voluntarily with the─in the 

presence of the sheriff.

([Appellant] exiting the courtroom.)

(Pause.)

([Appellant] entering the courtroom.)

Id. at 26-27.

The court conducted the following colloquy regarding Appellant’s 

request to waive his right to counsel and proceed pro se. The court 

explained to Appellant that it would ask him a series of questions to 

determine whether he would be permitted to represent himself. Id. at 27. 

Appellant was verbally unresponsive when the court asked him if he 

understood the court’s purpose in asking him certain questions. Id. The 

court informed Appellant that he had the right to be represented by counsel 

and that if he could not afford an attorney, an attorney would be appointed 

to represent him. Id. at 27.

The court asked Appellant if he knew the elements of the crimes with 

which he was charged, viz., murder and PIC. Id. at 28. Appellant 

responded “Yes.” Id. The court stated: 
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Tell me, please, the elements of murder. What does the 

Commonwealth have to prove─you are charged with 

murder generally, which means that the Commonwealth 

would be proceeding both on first degree murder, as well 

as on third degree murder.

Do you understand that?

[Appellant]: No, no really.

The Court: Fine enough. That is the situation you are 

facing today. You’re also charged with [PIC].

Now, on the murder in the first degree, are you aware that 

if you’re convicted of that charge that you would be 

sentenced─the [c]ourt would have no option but to 

sentence you to life in prison? Did you know that?

[Appellant]: Twenty-five to 50 is life. Shit. Like I’m in my 

40’s, so nothing─I mean that don’t scare me.

 * * * 

The Court: . . . Do you understand the nature of the 

charges that are brought against you?

[Appellant]: Yes, ma’am.

The Court: Are you aware of the possible ranges of 

sentence in this case?

[Appellant]: Yes, ma’am.

The Court: Tell me what the ranges─

[Appellant]: I get a life in prison.

The Court: What about the murder in the third degree?

[Appellant]: I guess that’s 25-50. That’s what they offer.

The Court: You’re guessing. What about on [PIC]?

[Appellant]: I don’t know.
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The Court: . . . Do you understand that if you waive your 

right to counsel that you are still bound by all of the rules 

that would apply for an attorney in this case?

[Appellant]: Say that again?

The Court: If you were permitted to represent yourself─

[Appellant]: Yes.

The Court: ─that you would be held to the same standard 

as if you were represented by counsel.

[Appellant]: All right.

Id. at 28-29, 30-31.

The court inquired as to whether Appellant understood (1) the rules of 

selecting a jury, (2) how to make an opening statement, (3) how to crossexamine witnesses, and (4) applicable deadlines which could result in 

waiver. Id. at 31-34. Appellant responded: “I think you are trying to get 

technical with me.” Id. at 34. The Court stated: “This is a very technical 

business . . . .” Id. Appellant responded: “I understand that, Your honor. 

This is why I said I would like to get me another attorney. . . .” Id.

(emphasis added). Appellant referred to counsel as “a fucking liar.” Id. at 

42. The court found that Appellant was “not prepared to represent himself, 

that he [was] not fully apprised of the law and the rulings of the [c]ourt that 

would be necessary to allow him to provide an adequate representation in 

this matter, so the request to represent [him]self is denied.” Id. at 46. 
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Initially, we consider whether the request to proceed pro se was 

timely. Because the jury selection process had not begun, it was timely.3 

N.T. at 53; See El, 977 A.2d at 1163. We decline to find that Appellant 

waived the right to represent himself based upon his disruptive behavior in 

the courtroom. See Abu-Jamal, 720 A.2d at 110.

We find the trial court followed the framework set forth in Pa.R.Crim.P. 

121 when conducting its inquiry to determine whether Appellant should be 

permitted to proceed pro se. See Pa.R.Crim.P. 121; El, 977 A.2d at 1163. 

We discern no abuse of discretion by the trial court’s denial of Appellant’s 

request to poceed pro se. See El, 977 A.2d at 1167. 

Next, Appellant contends he is entitled to an arrest of judgment on the 

charge of first degree murder because the evidence was insufficient to 

sustain the verdict.4 He avers that even if we assume he acted with malice, 

the Commonwealth did not prove premeditation or a specific intent to kill.5 

Appellant argues: 

 

3 We note that the first panel of jurors was excused at the conclusion of the 

Rule 121 colloquy. N.T., 7/22/13, at 69. 

4 Appellant did not file a post-sentence motion. However, a sufficiency of 

the evidence claim can be raised for the first time on appeal. Pa.R.Crim.P. 

606(A)(7); Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 

2011).

5 We note that Appellant stated to the court, out of the presence of the jury: 

“There’s never been a denial about me committing the crime.” N.T., 

7/22/13, at 41.
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Assuming that [he] acted with malice, the Commonwealth 

did not prove premeditation. While premeditation can be 

formed in but a second or so, it remains that it must be 

formed. . . . [T]he beating with the pipe did not 

demonstrate premeditation, but demonstrated a temporary 

disassociation from the civilities of life and while [he] must 

be held accountable for the crime, the crime to be held 

accountable for was Murder in the Three [sic] Degree and 

not First Degree Murder. In that the Commonwealth did 

not prove premeditation nor a specific intent to kill, the 

evidence is insufficient. . . . 

Appellant’s Brief at 14. We find no relief is due.

“A claim challenging the sufficiency of the evidence is a question of 

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . does not 

require a court to ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt. Instead, it must determine simply whether the 

evidence believed by the fact-finder was sufficient to 

support the verdict. . . .

 * * *

When reviewing the sufficiency of the evidence, an 

appellate court must determine whether the evidence, and 

all reasonable inferences deducible from that, viewed in 

the light most favorable to the Commonwealth as verdict 

winner, are sufficient to establish all of the elements of the 

offense beyond a reasonable doubt.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007) 

(citations and quotation marks omitted). 

Section 2502(a) of the Crimes Code defines first degree murder:

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

constitutes murder of the first degree when it is committed 

by an intentional killing.
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18 Pa.C.S. § 2502(a). 

Our Pennsylvania Supreme Court has stated:

In order to sustain a conviction for first-degree murder, 

the Commonwealth must demonstrate that a human being 

was unlawfully killed; the defendant was responsible for 

the killing; and the defendant acted with malice and a 

specific intent to kill, i.e., the killing was performed in an 

intentional, deliberate, and premeditated manner. Specific 

intent may be established through circumstantial 

evidence, such as the use of a deadly weapon on a 

vital part of the victim’s body. 

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citations 

omitted and emphasis added). “[T]he intent to kill may be formulated in 

seconds.” Commonwealth v. Baez, 759 A.2d 936, 938 (Pa. Super. 2000) 

The trial court found the evidence was sufficient to sustain a conviction 

for first degree murder. The court opined:

Appellant gave a statement to police, which was read into 

the record by Detective Francis Kane, describing the 

incident. In his statement, Appellant stated that he had 

known Andrews for approximately seven (7) or eight (8) 

years. Appellant stated that he was with Andrews in the 

early morning of March 22, 2013, getting high with 

females at Andrews’ apartment. Appellant stated that 

after the females left, an argument ensued between him 

and Andrews over the potential purchase of more drugs. 

Appellant walked into the bedroom and laid down. 

Appellant stated Andrews walked into the kitchen and 

began slamming pots, at which point Appellant got out of 

bed and they began to argue again. Appellant stated that 

Andrews told Appellant he “had to roll” but Appellant 

refused and Appellant stated that after that argument 

started, “then everything went boom.” Appellant stated 

that he might have pushed Andrews on the way back to 

the bedroom and that after that, Andrews pushed him and 

the two men began to fight. Appellant stated that he 
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grabbed a knife and Andrews grabbed a pair of scissors. 

Appellant stated that he stabbed Andrews with the knife in 

the side of the jaw and Andrews “lost the scissors.” 

Appellant stated the knife he had “bent up” so Appellant 

grabbed the iron. Appellant stated that as Andrews laid on 

his back, Appellant got on top of Andrews, and “hit him 

with the iron until it broke.” While Andrews was lying on 

the floor bleeding out, Appellant covered Andrews with a 

quilt, stating that he “didn’t want to see [Andrews’] face. 

Appellant then stated that he knew from watching 

television that rigor mortis would set in and he would not 

be able to move Andrews’ body if he waited so he 

[dragged] Andrews’ body into the closet.

Appellant stated that after he put Andrews’ body into 

the closet, Appellant “passed out on the bed.” Appellant 

stated that he awoke on Friday, March 23, 2012, gathered 

his things, and “turned the thermostat up.” Appellant 

stated that he took the knife, bloody shirt, bloody pants, 

and bloody socks and placed the items in a blue canvas 

bag, which he disposed of in a trash can at the 69th Street 

Market-Frankford Line terminal.

Trial Ct. Op. at 6-7 (references to record omitted). The trial court 

concluded that viewing the evidence in the light most favorable to the 

Commonwealth, the evidence was sufficient to sustain the verdict. Id. at 8.

At trial, Marlon Osbourne, M.D., assistant medical examiner for the 

Philadelphia Medical Examiner’s Office, testified as an expert in the area of 

forensic pathology. N.T., 7/24/13, at 104, 110. Dr. Osbourne performed an 

autopsy on Andrews. Id. at 111. The cause of death was multiple stab 

wounds. Id. at 113. The stab wound to the left side of Andrews’ neck was 

the fatal wound. Id. at 117-18. “Unless he received immediate medical 

attention, he would have bled out within minutes.” Id. Appellant inflicted 

the wounds standing behind Andrews. Id. at 120. It was possible that 
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Andrews was lying on his stomach when the wounds were inflicted. Id. at 

120-21. There were defensive wounds on Andrews’ hands. Id. at 121.

There were twenty-eight linear abrasions of blunt force trauma which 

would be consistent with Appellant hitting Andrews with the edge of the iron. 

Id. at 124. Although the toxicology report indicated the presence of cocaine 

and cocaine metabolites, the drugs Andrews ingested did not contribute to 

his death. Id. at 125-26. Dr. Osbourne testified that his conclusions and 

observations were made “to a reasonable degree of scientific medical 

certainty.” Id. at 129.

A conviction for first-degree murder can be sustained based upon 

circumstantial evidence where a deadly weapon was used on a vital part of 

the decedent’s body. See Ramtahal, 33 A.3d at 607. The intent to kill can 

be formulated in an instant. See Baez, 759 A.2d at 939. We find no relief 

is due. See Ratsamy, 934 A.2d at 1235-36; Widmer, 744 A.2d at 751.

Third, Appellant avers that he is entitled to a new trial on the charge of 

murder in the first degree because the verdict was against the weight of the 

evidence. As a prefatory matter, we consider whether Appellant has waived 

this issue. In Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), our 

Supreme Court opined:

Regarding [the a]ppellant’s weight of the evidence claim 

we note that Appellant did not make a motion raising a 

weight of the evidence claim before the trial court as the 

Pennsylvania Rules of Criminal Procedure require. See

Pa.R.Crim.P. 607(A). The fact that [the a]ppellant 

included an issue challenging the verdict on weight of the 
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evidence grounds in his 1925(b) statement and the trial 

court addressed [the a]ppellant’s weight claim in its 

Pa.R.A.P 1925(a) opinion did not preserve his weight of 

the evidence claim for appellate review in the absence of 

an earlier motion. Pa.R.Crim.P. 607(A); Steiner v. 

Markel, [ ] 968 A.2d 1253, 1257 ([Pa.] 2009) (holding 

that inclusion of an issue in a 1925(b) statement that has 

not been previously preserved does not entitle litigant to 

appellate review of the unpreserved claim); 

[Commonwealth v.] Mack, 850 A.2d [690, 694 (Pa. 

Super. 2004)] (holding weight claim waived by 

noncompliance with Pa.R.Crim.P. 607, even if the trial 

court addresses it on the merits). [The a]ppellant’s failure 

to challenge the weight of the evidence before the trial 

court deprived that court of an opportunity to exercise 

discretion on the question of whether to grant a new trial. 

Because “appellate review of a weight claim is a review of 

the exercise of discretion, not of the underlying question of 

whether the verdict is against the weight of the evidence,” 

Commonwealth v. Widmer, [ ] 744 A.2d 745, 753 ([Pa.] 

2000), this Court has nothing to review on appeal. We 

thus hold that [the a]ppellant waived his weight of the 

evidence claim because it was not raised before the trial 

court as required by Pa.R.Crim.P. 607.

Id. at 494 (some citations and footnotes omitted).

In the case sub judice, Appellant did not raise the weight of the 

evidence before the trial court. Therefore, we find the issue is waived. See

Pa.R.Crim.P. 607(A); Sherwood, 982 A.2d at 494.

Lastly, Appellant contends he is entitled to a new trial as the result of 

the ineffective assistance of counsel during closing argument. It is wellestablished that “as a general rule, a petitioner should wait to raise claims of 

ineffective assistance of trial counsel until collateral review.” 

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). There are two 

exceptions: 
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First, we appreciate that there may be extraordinary 

circumstances where a discrete claim (or claims) of trial 

counsel ineffectiveness is apparent from the record and 

meritorious to the extent that immediate consideration 

best serves the interests of justice; and we hold that trial 

courts retain their discretion to entertain such claims. 

Second, with respect to other cases and claims, 

including cases such as [Commonwealth v. Bomar, 826 

A.2d 831 (Pa. 2003)] and the matter sub judice, where the 

defendant seeks to litigate multiple or prolix claims of 

counsel ineffectiveness, including non-record-based claims, 

on post-verdict motions and direct appeal, we repose 

discretion in the trial courts to entertain such claims, but 

only if (1) there is good cause shown, and (2) the unitary 

review so indulged is preceded by the defendant’s knowing 

and express waiver of his entitlement to seek PCRA[6]

review from his conviction and sentence, including an 

express recognition that the waiver subjects further 

collateral review to the time and serial petition restrictions 

of the PCRA.

Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (citation and 

footnotes omitted). 

Instantly, Appellant failed to raise his ineffectiveness claims for 

consideration by the trial court and, moreover, did not knowingly waive his 

right to seek PCRA review. See id. We agree with the trial court that this 

issue should be dismissed without prejudice for Appellant to raise any 

ineffective assistance of counsel claim in a first PCRA petition. See Trial Ct. 

Op. at 11. 

 

6

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
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Absent consideration, “the claims regarding trial counsel’s 

ineffectiveness will be dismissed without prejudice.” See Grant, 813 A.2d 

at 739. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015