J-S13032-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARLIN KELLY,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1301 WDA 2017

Appeal from the Judgment of Sentence April 20, 2017

in the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0000133-2013

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 17, 2018

Marlin Kelly (“Kelly”) appeals from the judgment of sentence imposed 

following his convictions of second-degree murder, second-degree murder of 

an unborn child, and criminal conspiracy to commit robbery.1 We affirm.

Around August 2012, Kelly became involved in a heroin-dealing 

operation with three other men: Stephen Murray (“Murray”), Murray’s brother, 

Herbert Murray (“Herbert”), and Tyrone Fuller (“Fuller”). In early October 

2012, a disagreement among the four divided the group into two enterprises: 

Kelly with Fuller, and Murray with Herbert. On October 21, 2012, Murray stole 

approximately six bricks of heroin that had belonged to Kelly. After Fuller 

discovered that Murray had taken the heroin, and was selling it to Fuller and 

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1 See 18 Pa.C.S.A. §§ 2502(b), 2604(b), 903(a)(1).
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Kelly’s usual customers, Kelly and Fuller formed a plan to retrieve the heroin 

by robbing Murray at gunpoint. 

Kelly and Fuller enlisted the help of James Leo (“Leo”), a heroin addict 

who frequently provided transportation for Fuller in exchange for heroin. 

Fuller and Kelly asked Leo to buy heroin from Murray, so that Fuller and Kelly 

could determine where he lived. In exchange, Fuller and Kelly would provide 

the buy money and Leo could keep the heroin that he purchased.

Leo agreed to the arrangement and on October 28, 2012, drove Kelly 

and Fuller to Murray’s apartment building. Leo called Murray and arranged to 

buy the heroin. Kelly and Fuller, both armed with handguns, ascended the 

exterior stairs of the apartment building, and hid in a shadowy area in the 

stairwell, waiting to ambush whoever met with Leo. 

While Kelly and Fuller were waiting, someone approached their position, 

causing them to retreat to another floor. Kelly stopped outside of the front 

door to Murray’s apartment. At that moment, Murray’s girlfriend, Conekia 

Finney (“Finney”), opened the door, startling Kelly, and causing him to point 

his gun into the doorway and pull the trigger. Finney was seven months 

pregnant with her daughter, Sekiah. After realizing he had shot someone,

Kelly fled the scene with Fuller following close behind, unaware of what had 

happened. Both Finney and Sekiah died as a result of the gunshot wound. 

Several days later, Kelly and Fuller were apprehended. Kelly was 

charged with criminal homicide, criminal homicide of an unborn child, robbery, 
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and conspiracy to commit robbery. Fuller cooperated with the police, leading 

them to the murder weapon. Fuller also entered into a plea agreement and 

agreed to testify against Kelly. Following his first jury trial, Kelly was found 

guilty of second-degree murder, second-degree murder of an unborn child, 

and criminal conspiracy to commit robbery. This court reversed the judgment 

of sentence based on the trial court’s failure to sustain a challenge for cause 

of a juror who, as an active police officer in Beaver County, had an ongoing 

relationship with the Beaver County District Attorney’s office, including the 

two Assistant District Attorneys prosecuting the case, and knew several of the 

police officers set to testify in the case. See Commonwealth v. Kelly, 134 

A.3d 59, 64 (Pa. Super. 2016). This Court remanded for a new trial. See Id.

at 65.

Following his second jury trial, Kelly was found guilty of second-degree 

murder, second-degree murder of an unborn child, and conspiracy to commit 

robbery. Kelly was sentenced to an aggregate term of life in prison. Kelly 

filed a timely Post-Sentence Motion, challenging the sufficiency and weight of 

the evidence, which was denied. Kelly filed a timely Notice of Appeal.2

On appeal, Kelly raises the following questions for our review:

I. Whether the Commonwealth failed to present sufficient 

evidence to prove beyond a reasonable doubt that [Kelly] was 

guilty of [second-degree murder], second[-]degree murder of an 

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2 The trial court did not order Kelly to file a Pa.R.A.P. 1925 concise statement 

of matters complained of on appeal. However, the trial court filed a Rule 

1925(a) Opinion.
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unborn child, and criminal conspiracy – robbery – inflict serious 

bodily injury?

II. Was the jury verdict of guilty against the weight of the evidence 

presented at trial?

Brief for Appellant at 4 (capitalization omitted, issues reordered).

In his first claim, Kelly alleges that the evidence was insufficient to 

support his convictions for second-degree murder, second-degree murder of 

an unborn child, and conspiracy to commit robbery. Id. at 19-21. Kelly 

asserts that the evidence did not establish that he had conspired with Fuller. 

Id. at 20-21. Kelly argues that there was no evidence that he entered into 

an agreement with Fuller to rob anyone, nor evidence that he agreed to help 

or solicited Fuller to rob anyone. Id.

We apply the following standard of review when considering a challenge 

to the sufficiency of the evidence:

[W]hether[,] 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 finder of fact[,] while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, or part or none of the evidence.
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Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

“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.” 18 Pa.C.S.A. § 2502. “Perpetration of a felony” 

is defined as “[t]he act of the defendant in engaging in or being an accomplice 

in the commission of, or an attempt to commit, or flight after committing, or 

attempting to commit robbery ... by force or threat of force....” Id. § 2502(d).

“A criminal homicide of an unborn child constitutes second degree 

murder of an unborn child when it is committed while the defendant was 

engaged as a principal or an accomplice in the perpetration of a felony.” Id.

§ 2604.

Criminal Conspiracy is defined, in relevant part, at section 903 of the 

Crimes Code:

A person is guilty of conspiracy with another person or persons to 

commit a crime if with the intent of promoting or facilitating its 

commission he: (1) agrees with such other person or persons that 

they or one of more of them will engage in conduct which 

constitutes such crime or an attempt or solicitation to commit such 

crime....

Id. § 903(a)(1). “The Commonwealth does not have to prove that there was 

an express agreement to perform the criminal act; rather, a shared 

understanding that the crime would be committed is sufficient.” 

Commonwealth v. Nypaver, 69 A.3d 708, 715 (Pa. Super. 2013). 
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An explicit or formal agreement to commit crimes can 

seldom, if ever, be proved and it need not be, for proof of a 

criminal partnership is almost invariably extracted from the 

circumstances that attend its activities. Thus, a conspiracy may 

be inferred where it is demonstrated that the relation, conduct, or 

circumstances of the parties, and the overt acts of the coconspirators sufficiently prove the formation of a criminal 

confederation. 

Commonwealth v. McCoy, 69 A.3d 658, 664 (Pa. Super. 2013) (citations, 

brackets, and quotation marks omitted). 

Fuller testified that he and Kelly had discussed a plan to steal heroin 

from Murray by threatening him with firearms and bodily injury. See N.T., 

8/19/14, at 108-16, 120-26. He testified that Kelly was angry about Murray 

stealing Kelly’s heroin and selling it to Fuller and Kelly’s customers, and agreed 

with Fuller to rob Murray. Id. at 125. Fuller further testified that the two had 

discussed using Leo as bait to lure Murray out of his apartment, then ambush 

him with their guns. Id. Fuller stated that he had called Leo to transport 

them to Murray’s apartment, that Kelly and Fuller then armed themselves with 

firearms, that they dispatched Leo to lure Murray out of his apartment, and 

hid in waiting outside his apartment, with the intent to ambush Murray. See

id. at 122-67, 182-83. Fuller testified that Kelly shot Finney. Id. at 166.

Leo corroborated Fuller’s testimony, testifying that he picked up Kelly 

and Fuller; was instructed by Fuller, with Kelly present, to show them where 

Murray lived and to call Murray to make the drug deal; and that Fuller told 

Leo, in the presence of Kelly, that they were going to “beat” Murray, which 
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Leo took to mean that they were going to rob him. See N.T., 8/15/14, at 35-

51, 155-65. 

Therefore, the evidence viewed in a light most favorable to the 

Commonwealth, is sufficient to demonstrate that Kelly was actively engaged 

in a conspiracy to commit robbery. See Commonwealth v. Weston, 749 

A.2d 458, 463 (Pa. 2000) (stating that evidence showing that the coconspirator had an argument with the victim, then solicited the defendant’s 

help to confront the victim, and the defendant and co-conspirator armed 

themselves, then confronted the victim together, is sufficient to establish 

shared criminal intent required for criminal conspiracy); see also

Commonwealth v. Lamb, 455 A.2d 678, 685 (Pa. Super. 1983) (stating that 

the uncorroborated testimony of a co-conspirator to the defendant’s 

participation in a conspiracy to commit robbery is sufficient evidence to 

establish criminal conspiracy despite the lack of an oral agreement by the 

defendant or any particular action by the defendant to aid or solicit the 

robbery). Further, Kelly shot Finney, in furtherance of a felony, causing her 

and her unborn child’s death, a fact that Kelly does not dispute. See Trial 

Court Opinion, 10/25/17, at 13. Thus, upon our review of the evidence, 

viewed in a light most favorable to the Commonwealth, we conclude that the 

evidence was sufficient to sustain Kelly’s convictions for second-degree 

murder, second-degree murder of an unborn child, and conspiracy to commit 

robbery. 
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In his second claim, Kelly argues that the verdict was against the weight 

of the evidence presented at trial. Brief for Appellant at 15-19. Specifically, 

he claims that it was against the weight of the evidence for the jury to 

conclude that Kelly was a participant in the underlying conspiracy to commit 

robbery, and as a result, it was also against the weight of the evidence to find 

him guilty of second-degree murder and second-degree murder of an unborn 

child. Id. He argues that Fuller planned the robbery on his own, and Kelly 

followed along, completely unaware of Fuller’s intentions. Id. at 17-19.

The law pertaining to weight of the evidence claims is wellsettled. The weight of the evidence is a matter exclusively for the 

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

evidence and to determine the credibility of the witnesses. A new 

trial is not warranted because of a mere conflict in the testimony 

and must have a stronger foundation than a reassessment of the 

credibility of witnesses. Rather, the role of the trial judge is to 

determine that notwithstanding all the facts, certain facts are so 

clearly of greater weight that to ignore them or to give them equal 

weight with all the facts is to deny justice.

On appeal, our purview is extremely limited and is confined 

to whether the trial court abused its discretion in finding that the 

jury verdict did not shock its conscience. Thus, appellate review 

of a weight claim consists of a review of the trial court’s exercise 

of discretion, not a review of the underlying question of whether 

the verdict is against the weight of the evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015) 

(quotation marks and citations omitted).

Here, the trial court found that the verdict, based upon the substantial 

evidence found credible by the jury, did not shock one’s conscience. See Trial 

Court Opinion, 10/25/17, at 17-18. Based upon our review, we conclude that 
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the trial court did not abuse its discretion in denying Kelly’s weight of the 

evidence claim. See Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. 

Super. 2009) (stating that “[w]hen the challenge to the weight of the evidence 

is predicated on the credibility of trial testimony, our review of the trial court’s 

decision is extremely limited. Generally, unless the evidence is so unreliable 

and/or contradictory as to make any verdict based thereon pure conjecture, 

these types of claims are not cognizable on appellate review.”).

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2018