J-A02002-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SEAN SULLIVAN

Appellant No. 1905 EDA 2013

Appeal from the Judgment of Sentence May 10, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014636-2011

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 17, 2015

Appellant, Sean Sullivan, appeals from the judgment of sentence 

entered May 10, 2013, by the Honorable Jeffrey P. Minehart, Court of 

Common Pleas of Philadelphia County, following his conviction of murder in 

the third degree and related offenses. We affirm. 

On June 21, 2011, while incarcerated for murder at the CurranFromhold Correctional Facility, Sullivan got into a dispute with the inmates in 

Cell 15, Aaron Young and Richard Gyton. Sullivan threatened to settle the 

dispute later that night. Sullivan began to recruit co-conspirators, including 

co-defendant Donte Jones, to assist him. Later that day, Sullivan, Jones and 

two other inmates went to Cell 15. Sullivan had an improvised knife sticking 

out of his pants. Prison guards ultimately dispersed the group. 
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Over the next hour, Sullivan and his friends huddled together in the 

prison yard, while the Cell 15 inmates played basketball and then returned 

to their cell. A few minutes later, a fight broke out among inmates waiting 

to use the phone. Taking advantage of the confusion, Sullivan and two of 

his cohorts ran to Cell 15 and stabbed Gyton and Young multiple times with 

the improvised knives. A friend of Gyton and Young heard the screams and 

ran towards their cell, where one of Sullivan’s friends attacked him. Sullivan 

and company ran towards the day room, where they ambushed another 

prisoner, Earl Bostic, stabbing him nine times and killing him. Authorities 

later recovered Sullivan’s DNA on one of the weapons used to kill Bostic. 

Following a bench trial, the trial court convicted Sullivan of murder in 

the third degree, conspiracy to commit homicide, possession of an 

instrument of crime, possession of a prohibited offensive weapon, and 

aggravated assault. The trial court acquitted Sullivan of various charges 

stemming from the assaults on the other inmates. On May 10, 2013, based 

upon Sullivan’s prior murder conviction, the trial court sentenced him to a 

second mandatory life sentence for murder in the third degree, with 

concurrent sentences on the remaining charges. This timely appeal 

followed. 

Sullivan first contends that the trial court erred when it permitted the 

Commonwealth to improperly bolster the credibility of inmate Richard Gyton, 

who was stabbed by Sullivan in the prison melee. Prior to trial, Gyton gave 

a statement to police from his hospital bed, in which he implicated Sullivan 
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in the stabbing of Bostic. At trial, Gyton testified, contrary to his prior 

statement, that he did not see who stabbed Bostic. Although Guyton 

claimed that he was under the influence of medication at the time the prior 

statement was made, Detective Burke testified on cross-examination that 

“[Gyton] spoke clearly. He understood what I was asking him. He was very 

forthcoming.” N.T., Trial, 2/28/13 at 69. 

Preliminarily, we note that our review of the trial transcript reveals 

defense counsel did not raise a contemporaneous objection to Detective 

Burke’s allegedly improper testimony. On this basis, we find Sullivan’s claim 

waived. See Commonwealth v. May, 584 Pa. 640, 887 A.2d 750, 761 

(2005) (holding that the “absence of a contemporaneous objection renders” 

an appellant’s claims waived); Pa.R.E. 103. Although Sullivan asserts that 

the trial court permitted Detective Burke to testify over counsel’s objection, 

the record does not reveal an objection was lodged contemporaneous to the 

detective’s testimony; nor does Sullivan provide a citation to support his 

claim.1 

____________________________________________

1 Several witnesses after Detective Burke testified, defense counsel belatedly 

raised an objection on the grounds that “the last three witnesses were 

improper bolstering and vouching for the credibility of Commonwealth 

witnesses.” N.T., Jury Trial, 2/28/13 at 86. This general objection was 

neither timely nor specific. See Commonwealth v. Williams, 91 A.3d 

240, 252 (Pa. Super. 2014) (“[T]o preserve an issue for appellate review, a 

party must make a timely and specific objection at the appropriate stage of 

the proceedings.”). 
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Nonetheless, even if we were to examine this claim, we would not 

grant relief. Pursuant to Pennsylvania Rule of Evidence 701, Opinion 

Testimony by Lay Witness, lay witness testimony in the form of an opinion is 

limited to one that is:

(a) rationally based on the witness’s perception

(b) helpful to clearly understanding the witness’s testimony or to 

determining a fact in issue; and

(c) not based on scientific, technical, or other specialized 

knowledge within the scope of Rule 702.

Pa.R.E. 701. “A lay person may testify to distinct facts observed by him 

concerning the apparent physical condition or appearance of another.” 

Commonwealth v. Counterman, 719 A.2d 284, 301 (Pa. 1998) (citation 

omitted). In Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004), the 

Supreme Court affirmed the admissibility of opinion testimony as to 

Defendant’s “serious” manner as “opinion on a matter falling within the 

realm of common knowledge, experience or understanding.” Id., at 97. 

We would find that it was properly within the trial court’s sound 

discretion to admit testimony that Gyton was clear and forthcoming as 

falling within the realm of common knowledge, experience and 

understanding. Clearly, Detective Burke’s testimony as to Gyton’s demeanor 

during questioning was based upon his personal observation. More 

importantly, we do not find Detective Burke’s characterization impermissibly 

intruded upon the duty of the jury to determine credibility of witnesses, but 

rather provided relevant context to Gyton’s state of mind and demeanor at 
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the time he gave his prior statement. Therefore, Sullivan’s allegation of 

error would merit no relief. 

Appellant next argues that the verdicts were against the weight of the 

evidence. We note that

[t]he finder of fact is the exclusive judge of the weight of the 

evidence as the fact finder is free to believe all, part, or none of 

the evidence presented and determines the credibility of the 

witnesses.

As an appellate court we cannot substitute our judgment 

for that of the finder of fact. Therefore, we will reverse a jury’s 

verdict and grant a new trial only where the verdict is so 

contrary to the evidence as to shock one’s sense of justice. A 

verdict is said to be contrary to the evidence such that it shocks 

one’s sense of justice when the figure of Justice totters on her 

pedestal, or when the jury’s verdict, at the time of its rendition, 

causes the trial judge to lose his breach, temporarily and causes 

him to almost fall from the bench, then it is truly shocking to the 

judicial conscience.

Furthermore, where the trial court has ruled on the weight 

claim below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against the weight 

of the evidence. Rather, appellate review is limited to whether 

the trial court palpably abused its discretion in ruling on the 

weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) 

(citations and internal quotation marks omitted).

We find no abuse of discretion by the trial court in determining that 

the verdicts were not against the weight of the evidence. The record fully 

supports the trial court’s determinations, and the court acted well-within its 

discretion to credit the consistent testimony of the Commonwealth’s 
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witnesses and not Sullivan. See Commonwealth v. Bullick, 830 A.2d 998, 

1000 (Pa. Super. 2003) (“[T]he 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.”). Thus, we find this claim to be 

without merit.

Lastly, Sullivan argues that the evidence was insufficient to support his 

conviction of third-degree murder. We review a challenge to the sufficiency 

of the evidence as follows:

The standard we apply when 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. Furthermore, when reviewing a sufficiency 

claim, our Court is required to give the prosecution the benefit of 

all reasonable inferences to be drawn from the evidence.

However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such volume 

and quality as to overcome the presumption of innocence and 

satisfy the jury of an accused’s guilt beyond a reasonable doubt. 

The trier of fact cannot base a conviction on conjecture and 
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speculation and a verdict which is premised on suspicion will fail 

even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014) 

(citation omitted). 

Sullivan argues that his conviction for third-degree murder was 

insufficient as the Commonwealth failed to establish that he acted with the 

requisite malice. 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). 

Sullivan contends that the evidence suggested that the decedent, 

Bostic, was the “aggressor or a consensual combatant in the violent chaos 

ensuing in C Block.” Appellant’s Brief at 22. Sullivan suggests that he was 

merely acting “with the belief that it was every man for himself and reacting 

to the violence all around him.” Id. Sullivan’s argument is unavailing. As 

the trial court aptly noted, “[t]he evidence showed that [Sullivan] repeatedly 

stabbed Mr. Bostic in the mid-section with a sharp object.” Trial Court 

Opinion, 4/25/14 at 5 (unnumbered). The record simply does not support 
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Sullivan’s assertion that he attempted to retreat from the ensuing violence—

but instead indicates that he repeatedly stabbed an otherwise defenseless 

victim. It was certainly reasonable for the jury to conclude that repeatedly 

stabbing the decedent in the mid-section constituted, at a very minimum, 

extreme recklessness of consequences such that sufficient evidence of 

malice existed to support Sullivan’s conviction of third-degree murder. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015