J-S22001-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

DERRICK RAYMOND ELLIOT 

 Appellant No. 627 WDA 2012 

Appeal from the Judgment of Sentence March 14, 2012

In the Court of Common Pleas of Allegheny County 

Criminal Division at No: CP-02-CR-0014878-2010 

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.∗

MEMORANDUM BY PANELLA, J. FILED MAY 19, 2015 

 Appellant, Derrick Raymond Elliot, seeks review of the judgment of 

sentence entered by the Allegheny Country Court of Common Pleas after a 

bench trial and challenges the sufficiency of the evidence supporting his 

convictions for third-degree murder1 and firearms not to be carried without a 

license.2 We affirm. 

 On March 7, 2009, Melvin Duncan, Jr., Tezjuan Taylor, and Lamar 

Patrick drove to the Crawford Village in McKeesport in a stolen red Honda 

____________________________________________ 

∗

 Retired Senior Judge assigned to the Superior Court. 

1

 18 Pa.C.S.A. § 2502. 

2

 Pa.C.S.A. § 6106. 
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car, and stopped the vehicle near a basketball court.3 Patrick was in the 

driver’s seat, Taylor was in the front passenger seat, and Duncan was in the 

back seat standing up through the sunroof. Elliot was in the nearby 

basketball court. When he saw the red car, he picked up a gun and, while 

walking in the parking lot adjoining the court, began firing shots at the car. 

One of the bullets struck Duncan, and he fell back into the car as Patrick 

drove away quickly. He stopped the car on a dead end street, where he and 

Taylor pulled Duncan out of the car and placed him on the ground before 

fleeing on foot. The City of McKeesport Police Department later received a 

call reporting that a stolen car had been located. When the police responded 

to the location, they found Duncan lying beside the passenger side of the 

vehicle. He was pronounced dead shortly thereafter. 

Allegheny County police investigators responded to the scene of the 

Crawford Village shooting. The police recovered seven shell casings from 

the parking lot adjacent to the basketball courts; testing revealed that they 

had all been fired from the same gun. The police did not recover the 

weapon. The caliber of shell casings found at Crawford Village was the same 

as the caliber of the casing removed from Duncan’s body. 

____________________________________________ 

3

 Patrick, Taylor and Duncan were members of the “Goon Squad,” a gang 

from the “top of McKeesport” area of McKeesport. A rival gang operated out 

of Crawford Village. 
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Several witnesses identified Elliot as the shooter. Jameelah Miller, an 

eyewitness, told police that when the shooting started, everyone hit the 

ground—except Elliot who remained standing with a gun in his hand, 

shooting toward the car. Derrick Walker told police that Elliot had confessed 

to him that he had shot at the car. Patrick identified Elliot in a photo array 

as someone who “jumped out at him,” and told investigators that the 

shooter’s name was “Derrick.” Trial Court Opinion, dated 9/3/14, at 6. 

Elliot was arrested and charged with the aforementioned crimes. 

At Elliot’s trial, Patrick and Walker withdrew their prior statements 

made to police. Patrick testified that he had never positively identified Elliot 

from the photo array as the shooter and stated that Elliot was not the 

shooter. Taylor testified that he did not see the shooter, did not know Elliot, 

and did not see Elliot at the scene of the crime. Walker testified that he did 

not have a conversation with Walker. The court admitted Patrick’s prior 

statement, as well as a video of Walker’s interview with investigating officers 

in which Walker told officers that Elliot had told him that he was the shooter. 

Jameelah Miller testified in detail about the circumstances leading up to and 

including the shooting. She also stated that she did not hear gunshots 

coming from anywhere else in the area and “[s]he was emphatic that there 

was only one person shooting, and that the shooter was Derrick Elliot, the 

Defendant.” Id. at 6-7. She also testified that threats had been made 

against her prior to trial and she had been placed in a witness protection 

program. 
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The court found Elliot guilty of third-degree murder and the firearms 

offense. He was subsequently sentenced to a term of 121⁄2 to 25 years’ 

incarceration for the homicide conviction and to a consecutive term of 31⁄2 to 

7 years’ incarceration for the firearms conviction. Elliot timely appealed to 

this Court. He raises the following issue: 

Did the trial court err in finding the evidence sufficient to sustain 

a finding of guilty on the charges of third degree murder and 

firearms not to be carried without a license? 

Appellant’s Brief, at 2. 

In reviewing a challenge to the sufficiency of the evidence, “[w]e must 

determine whether the evidence admitted at trial, and all reasonable 

inferences derived therefrom, when viewed in the light most favorable to the 

Commonwealth as verdict winner, support all of the elements of the offense 

beyond a reasonable doubt.” Commonwealth v. Cooper, 941 A.2d 655, 

662 (Pa. 2007). Our scope of review is plenary. See Commonwealth v. 

Weston, 749 A.2d 458, 460 n.8 (Pa. 2000). We may not weigh the 

evidence and substitute our judgment for the fact-finder’s, as the fact-finder 

solely determines the credibility of witnesses and is free to believe all, part 

or none of the evidence submitted. See Cooper, 941 A.2d at 662. The 

Commonwealth may sustain its burden of proving every element of an 

offense by means of wholly circumstantial evidence. See Commonwealth 

v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013). 
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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, 363–64 (Pa. 2005); 

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011). 

Malice is defined as: 

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[.] Malice may be found where the defendant consciously 

disregarded an unjustified and extremely high risk that his 

actions might cause serious bodily injury. Malice may be inferred 

by considering the totality of the circumstances. 

Id. (citations omitted). 

 Elliot relies solely on testimony provided at trial by Patrick and Taylor 

before concluding that the trial court erred in relying only upon the 

testimony of one witness to find him guilty of third-degree murder. See

Appellant’s Brief, at 9. But this is not a challenge to the sufficiency of the 

evidence. It is a challenge to its weight. See, e.g., Commonwealth v. 

Ferguson, 107 A.3d 206, 212-13 (Pa.Super. 2015). This is a claim not 

raised on appeal. Accordingly, we find it waived. See Pa.R.A.P. 2116(a) 

(“No question will be considered unless it is stated in the statement of 

questions involved or is fairly suggested thereby.”). 

With respect to the firearms offense, the trial court observed: 

This court also found the Defendant guilty of carrying a firearm 

without a license. The crime of carrying a firearm without a 

license is set forth in 18 Pa.C.S. § 6101(a), which states: [“]Any 

person who carries a firearm in any vehicle or any person who 
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carries a firearm on or about his person, except in his place of 

abode or fixed place of business, without a valid and lawfully 

issued license under this Chapter commits a felony of the third 

degree. ... In order to convict a defendant for carrying a firearm 

without a license, the Commonwealth must prove: “(a) that the 

weapon was a firearm, (b) that the firearm was unlicensed, and 

(c) that where the firearm was concealed on or about the 

person, it was outside his home or place of business.” 

Com[monwealth] v. Parker, 847 A.2d 745, 750 (Pa.Super. 

2004). 

In this case, a firearm was never recovered, and the murder 

weapon was not found in the Defendant’s possession. However, 

this court found, based on the credible testimony of Jameelah 

Miller, that the Defendant had possessed a firearm at the time of 

the shooting. Although this court relied on circumstantial 

evidence when it found the Defendant guilty on this count, the 

Commonwealth may sustain its burden of proving every element 

of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Com[monwealth] v. Baker, 72 A.3d 

652, 658 (Pa.Super. 2013). Here, the Commonwealth sought to 

prove that the Defendant had constructive possession of a 

weapon, as a gun was never found on the Defendant or 

recovered at or near the crime scene. Constructive possession is 

an inference arising from a set of facts that possession of the 

contraband was more likely than not, and it may be established 

by the totality of the circumstances. Parker, supra at 750. 

The direct, eyewitness testimony of [Ms.] Miller was strong 

circumstantial evidence of the Defendant’s possession of the 

gun. 

The remaining elements of this charge were easily proven. 

Detective Patrick Kinavey testified and provided documentary 

evidence that the Defendant was not licensed to possess a 

firearm. Additionally, this shooting occurred while the Defendant 

was located in a basketball court and a parking lot. Clearly, 

neither of these locations would qualify as the Defendant’s home 

or place of business. There was ample evidence presented at 

trial to justify this court’s conviction of the Defendant on the 

charge of carrying a firearm without a license. 

Trial Court Opinion at 10-11. 
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Elliot block-quotes the above excerpt from the trial court’s Rule 

1925(a) opinion before stating that because no gun was found, the 

circumstantial evidence “is not of the quality nor quantity which should give 

the fact finder comfort in supporting its finding.” Appellant’s Brief, at 12. 

That is the sum and substance of his discussion. He then provides citations 

to case law pertaining to the weight of the evidence and concludes, “the 

[c]ourt’s verdict is unsupported by competent evidence.” Id. at 13. 

Elliot provides no citation to relevant authority and no analysis of the 

record evidence to support his conclusion.4 We find this claim waived. See, 

e.g., Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014); 

Pa.R.A.P. 2119(a). 

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judge Lazarus joins in the memorandum. 

Judge Strassburger concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 5/19/2015 

____________________________________________ 

4

 For an explanation of the difference between weight and sufficiency of the 

evidence claims we direct the reader to Commonwealth v. Taylor, 471 

A.2d 1228, 1229-1230 (Pa. Super. 1984).