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

v.

TRENT ALAN TOLENE

Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2096 MDA 2016
Appeal from the Judgment of Sentence December 1, 2016 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP

- 22

- CR

- 0003679

- 2013, CP

- 22

- CR

- 0004385

- 2014

BEFORE: PANE LLA, J., STABILE, J., and PLATT  , J. MEMORANDUM BY PANELLA, J. FILED APRIL 11, 2018 Trent Alan Tolene appeals from the judgment of sentence entered in the Dauphin County Court of Common Plea s. On appeal, he solely challenge s the sufficiency of the evidence. We affirm. During Appellant’s two
- day bench trial, the Commonwealth presented extensive circumstantial evidence to show Appellant murdered his father , James Tommor, in a motel room. T he trial court found him guil ty of thi rd

degree murder, tampering with evidenc e, and theft of leased property. 1 The court later sentenced him to 51⁄2 to 40 years’ incarceration on the murder conviction . Appellant filed a timely notice of appeal, and complied with the

_________________ __________ ______ ____ _______

 Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(c); 4910(1); and 3932(a), respectively.J

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dictates of Rule 1925(b). This appeal is now properly before us. Appellant only challenges the sufficiency of the evidence to sustain his conviction for third

- degree murder. Our standard of review for a challenge to the sufficiency of the evidence is to d etermine 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 reason able doubt. See Commonwealth v. Dale , 836 A.2d 150, 152 (Pa. Super. 2003). “[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” Commonwealth v. Bruce , 916 A.2d 657, 661 (Pa. Super. 2007) (citati on omitted). Any doubt raised as to the accused’s guilt is to be resolved by the fact

- finder. See Commonwealth v. Kinney , 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we do not assess credibility nor do we assign weight to any of the testim ony of record.” Id . (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 (citati on omitted). Evidence is weak and inconclusive “[w]hen two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances....” Commonwealth v. Woong Knee
New , 47 A.2d 450, 468 (Pa. 1946). However, “[t]he Commonwealth may sustain its burden of proving every element of the crime beyond a reasonableJ

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doubt by means of wholly circumstantial evidence.” Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009) (citations omitted). Appellant argues the Commonwealth presente d no evidence to prove precisely when the murder occurred. Appellant concedes the evidence demonstrates Mr. Tommor was killed in Appellant’s motel room, but he indicates no witnesses saw or heard the killing. Appellant calls attention to the inconclusive r esults of the DNA tests done on Appellant’s own clothing; while these tests indicated Appellant’s shirt had human blood on it, the tests did not prove or disprove that it was Mr. Tommor’s blood. Appellant admits he lodged in the motel during the week of Ap ril 10, 2013, but he complains the Commonwealth cannot prove that he was present in the motel room at all times during the rental period. This, Appellant declares, means he may not have been present when Mr. Tommor was killed and removed from the room
at some point during the week. Appellant concludes the Commonwealth failed to present sufficient evidence to support his conviction for third

- degree murder. We disagree. “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.” Commonwealth v. Morris , 958 A.2d 569, 576 (Pa. Super. 2008) (citations omitted). The Pennsylvania Supreme C ourt has “consistently held that malice is present under circ umstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions mightJ

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cause death or serious bodily harm.” Commonwealth v. Packer , 168 A.3d 161, 16 8 (P a. 2017) (citations omitted). Appellant leans heavily on the circumstantial nature of the evidence in this case to bolster a flimsy argument. Unfortunately, Appellant misconstrues circumstantial evidence to signify a complete lack of evidence. That is no t the case here. At trial, the Commonwealth presented evidence that Mr. Tommor, reserved and paid in advance for Appellant’s weeklong stay at the Days Inn motel in Dauphin County. See N.T. Trial, 10/3/16, at 12. Mr. Tommor also rented a vehicle during th e same week, though Appellant was not listed as an authorized driver of that car. See i d

. , at 84

- 85. Appellant checked into the motel on April 10, 2013. See i d

. , at 12. Hotel workers cleaned the room twice, but Appellant frequently had a “do not disturb” s ign on his doorknob. Id

. , at 16. Consequently, hotel staff did not clean Appellant’s room during the last few days of his stay. See i d

. On April 17, the day Appellant was scheduled to check out of the motel, a maintenance worker came to check on the room. See N.T. Trial, 10/4/16, at 21. The worker knocked on the door; hearing nothing, he used his key card to unlock it. See i d

. , at 22. After opening the door, he notic ed the room was completely dark. See id . Because of the light from the hallway, he could see Appellant lying fully clothed on top of one of the beds. See i

d

. The worker excused himself and left the room. See i d

. , at 23.J

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Appellant checked out of the motel on the following morning. See N.T. Trial, 10/3/16, at 12. The front desk clerk inquired abou t Appellant’s sta y and the condition of the room; Appellant described the room as “great,” and left the motel. Id

. , at 12. A few hours later, a housekeeper entered the room and noticed a large swatch had been cut out of the carpet. See i d

. , at 20. The hole revealed a dark

- colored padding beneath the carpet. See id ., at 22. She alerted the maintenance worker who had checked on Appellant’s room the previous day. See id

. The worker realized the padding underneath the carpet was stained with blood, and he calle d the police. See N.T. Trial, 10/4/16, at 25. The responding officers searched the area around the Days Inn, but were unable to find additional evidence. See N.T. Trial, 10/3/16, at 87. Based on the suspicious circumstances, the police issued an alert to o fficers to be on the lookout for Appellant and the rental car, which had not been returned and was overdue. See i d

. , at 29. A police officer patrolling a nearby interstate highway spotted Appellant driving the rental car. See id

. The officer pulled Appellant over and ordered him to step out of the vehicle

. See id

. Appellant appeared to be intoxicated, and had a large bruise the size of a dollar bill on his arm. See id ., at 31. Appellant also had blood on his shirt. See N.T. Trial, 10/3/16, at 36. Appellant

was arrested and to the police department. See i d

. , at 30. At the station, police processed the contents of the rental car. See N.T. Trial, 10/3/16, at 57. Among other items, they found an envelope with $2,900.00 in cash; sever al bags and boxes containing clothing, canned goods,J

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tools; Mr. Tommor’s wallet, with his bank cards, driver’s license, social security card, and paperwork for the rental car inside; jewelry; two cell phones; and keys to one of Mr. Tommor’s vehicles. See i d

. , at 57

- 64. Though they were unable to confirm that it was Mr. Tommor’s blood on Appellant’s shirt, officers did discover dried blood on the underside of one of the boxes found in the vehicle. See i d

. , at 73. At trial, the parties stipulated the blood

on the bottom of the box was Mr. Tommor’s, and the carpet fibers also found on the box were from the motel room where Appellant stayed. See id ., at 74

- 75. Police returned to the Days Inn after arresting Appellant. See N.T. Trial, 10/3/16, at 88. While searc hing behind the motel, they discovered a gray tarp near a storage shed, with cinder blocks stacked on top. See id

. They raised the tarp, and discovered Mr. Tommor’s body inside. See id

. Following an autopsy, the coroner found that Mr. Tommor was repeatedly “pile

- driven” into the ground, which crushed his spinal cord and caused paralysis. N.T. Trial, 10/4/16, at 9. The coroner also opined that Mr. Tommor was strangled. See id ., at 10. He concluded complications due to multiple traumatic injuries caused Mr. Tommor’s death. See id ., at 11. At the conclusion of the Commonwealth’s case, t he defense declined to present any witnesses. See id ., at 35. After considering that significant array of circumstantial evidence, w e easily find t he Commonwealth presented suf ficient evidence to support Appellant’s third

- degree murder conviction. T aken in the light most favorableJ

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to the Commonwealth as the verdict winner, the facts and circumstances of this case plain ly show Appellant inflicted these injuries on Mr. Tommor. And the nature of the wounds demonstrates that Appellant consciously disregarded the risk that Mr. Tommor would be killed or seriously harmed by the inflicted injuries. See Packer , 168 A.3d at 169. Thus, the Commonwealth proved both that Appellant killed Mr. Tommor, and that Appellant acted with the requisite malice to constitute third

- degree murder. Accordingly, we affirm Appellant’s judgment of sentence. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/11/2018