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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. MICHAEL BARTLOW Appellant No. 3534 EDA 2014

Appeal from the Judgment of Sentence November 24 , 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP - 51 - CR - 0009398 - 2012 BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J. * 

# MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 23, 2015 Appellant, Michael Bartlow, appeals from the November 24, 2014 aggregate judgment of sentence of 9 to 20 years’ imprisonment imposed following a bench trial, wherein he was found guilty of mur der of the third degree and possession of an instrument of a crime (PIC). 1 

# Contemporaneously with this appeal, Appellant’s counsel filed with this Court a petition to withdraw, together with an Anders 2 

# brief, averring the appeal

____________________________________________
* 

# Former Justice specially assigned to the Superior Court.
1 

# 18 Pa.C.S.A. §§ 2502(c) and 907(a), respectively.
2 

# Anders v. California , 386 U.S. 738 (1967).

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is frivolous. After caref ul review, we affirm and grant counsel’s petition to withdraw. The trial court has set forth the relevant factual history as follows.

Immediately after the attack that is the subject of this case, Mr. Raymond Moore was taken by ambulance to Albert Eins tein Medical Center. During the ambulance ride, his heart stopped. He was kept on life support for one week when Ms. Moore allowed his life support to be withdrawn and he died. Dr. Gary Lincoln Collins, Deputy Chief Examiner for the Philadelphia Medica l Examiner’s Office, gave expert testimony that Mr. Moore sustained nasal bone and jaw fractures in the attack. While he was at the hospital and the medical personnel were trying to stabilize his jaw, they placed a tracheostomy tube in his neck. The tube became obstructed with blood, causing Mr. Moore to be unable to breathe for an extended period, thus causing irreversible brain injury. Brain injury due to a clogged tracheostomy tube is a known risk of surgical treatment for head and jaw injuries like t he ones Mr. Moore sustained. Cathy Moore lived with her husband Raymond at an apartment complex on the 600 block of East Church Lane in 2012. [Appellant] knew them and lived in the same apartment complex. Prior to May 24, 2012, [Appellant] and the Mo ores had a friendly relationship. On the morning of May 24, 2012, Raymond Moore left the apartment to run errands; when he returned in the afternoon, Cathy Moore noticed that he seemed very inebriated. When she asked him for their car keys, he said that [Appellant] had them, as he had asked to borrow the car in order to take his aunt home. Cathy Moore objected to this arrangement and shouted upstairs for [Appellant] to return the car keys to her. [Appellant] said that he had paid twenty dollars to be a ble to use the car so he could

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- 3 - take his aunt home. Ms. Moore offered him twenty dollars and told him that he could not use the car. When she handed him the twenty dollars, [Appellant] said that he had actually paid seventy
- five dollars to use the car. S he refused to give him that amount, and he refused to return the keys to her and to take the proffered twenty dollars. She then threatened to call the police in order to report that her car was being stolen. As Ms. Moore was searching for her title in o rder to confirm ownership to the police, she heard her car alarm going off. She went outside and saw [Appellant] attempt to start the car; he was unable to do so. They argued about his use of the car, and at that point she called 911 to report the attemp ted theft of her car. They continued to argue, and as they were doing so, the keys slipped from [Appellant]’s hands. Both of them dove to retrieve the keys. She grabbed them first, and [Appellant] slapped her across the face and went back inside. After [Appellant] retreated to the apartment building, Ms. Moore called 911 again to tell the dispatcher what had happened. [Appellant], back in his apartment, opened a window overlooking the car and told Ms. Moore that he was going to “f[***] up” her hus band. Ms. Moore was attempting to start the car so that she could operate the power windows and raise them, but it would not start. Mr. Moore came out to the car, moving in a wobbly manner. He also attempted to start the car, but was unable to do so. As Mr. Moore was attempting to start the car and Ms. Moore was waiting for police to arrive, [Appellant] came back outside. A young woman followed him out to where the car was parked. The two men began arguing, and they each took a swing at the other, bu t neither blow landed. Then Mr. Moore chased [Appellant], who ran between and around parked cars to evade him. When Mr. Moore grew tired and winded, he walked back toward the parked car where Ms. Moore was standing. [Appellant] then grabbed a brick and threw it at him,

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- 4 - hitting him in the head. Mr. Moore fell to the ground. [Appellant] picked up the brick and hit him in the head with it again, and then kicked him twice. Then he and the young woman walked away. The attack was recorded on video. Tria l Court Opinion, 2/2/15, at 2
- 4 (citations omitted). On June 13, 2012, Appellant was arrested and charged with the aforementioned crimes. Appellant’s trial took place on August 18
- 19, 2014, at the conclusion of which Appellant was found guilty. On Novem ber 24, 2014, Appellant was sentenced to an aggregate judgment of sentence of nine to twenty years imprisonment. 3 

# On December 1, 2014, Appellant filed a timely post
- sentence motion, which was denied by the trial court on December 3, 2014. On December 8, 2014, Appellant filed a timely notice of appeal. 4 

# On March 12, 2015, counsel filed a petition to withdraw, along with

____________________________________________ 3 

# Specifically, Appellant was sentenced to nine to twenty years f or the murder of the third degree charge, no further penalty was assessed regarding the PIC charge.
4 

# On December 15, 2014, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed a motion for an extension of time, which was granted, however, Appellant failed to timely comply with said extension. On January 28, 2015, Appellant filed a petition for nunc pro tunc reinstatement of his ability to file a Rule 1925(b) statement, and appended his Rule 1925(b) statement. On January 30, 2015, the trial court granted Appellant’s petition and accepted the statement as timely filed.

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an Anders brief. Thereafter, on May 15, 2015, Appellant filed a pro se brief. 5 

# On appeal, counsel raises the following issues for our re view.

[1.] [Appellant]’s third
- degree murder conviction cannot stand because the Commonwealth failed to prove beyond a reasonable doubt that [Appellant]’s actions on May 24, 2012 criminally caused Raymond Moore’s death on May 30, 2012. [2.] The Commonwe alth presented insufficient evidence to prove [Appellant] acted with malice when he struck Raymond Moore with a brick on May 24, 2012. This is so because the Commonwealth failed to prove beyond a reasonable [doubt] [Appellant] did not act in self
- defense. Anders Brief at 8, 12 (citations omitted). Additionally, in his pro se brief, Appellant raises three issues for our review. 6 

# First, as also raised by counsel, Appellant argues the evidence was insufficient to convict him of murder of the third degree because “it was not proved beyond a reasonable doubt by the Commonwealth that Appellant’s actions caused the death of the victim.” Appellant’s Pro Se Brief at 8.

____________________________________________ 5 

# We note, on June 5, 2015, Appellant f iled a pro se motion to remand for a hearing in accordance with Commonwealth v. Grazier 713 A.2d 81 (Pa. 1998). Grazier is inapplicable in the instant matter as Appellant is currently represented by counsel, and has filed a pro se response to counsel’s An ders brief
. Accordingly, Appellant’s June 5, 2015 motion to remand is denied as moot. 6 

# We note that Appellant has not included a statement of questions, however, from the argument section of his brief we can ascertain his three contentions. See Appella nt’s Pro Se Brief at 8
- 9.

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Second, Appellant argues the testimony of Cathy Moore was inconsistent with her previous statements, and therefore should have been discredited. Id. Finally, Appellant raises several claims of ineffective assistance of counsel. Id. at 8 - 9. Preliminarily, we must address counsel’s petition to withdraw. “When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw.” Commonwealth v. Daniels , 999 A.2d 590, 5 93 (Pa. Super. 2010) (citation omitted). Additionally, we review counsel’s Anders brief for compliance with the requirements set forth by our Supreme Court in Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009)
.

[W]e hold that in the Anders brief that accompanies court - appointed counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the re cord; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should arti culate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Id. at 361. Pursuant to Commonwealth v. Millisock , 873 A.2d 748 (Pa. Super. 2005) and its progeny, couns el must comply with the following obligations to his client.

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- 7 - Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief. Commonwealth v. Orellana , 86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation omitted). “Once counsel has satisfied the above requirements, it is then this Court’s duty to conduct its own review of the trial court’s proceedings and render an independent jud gment as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin , 928 A.2d 287, 291 (Pa. Super. 2007) ( en banc ), quotin g Commonwealth v. Wright , 846 A.2d 730, 736 (Pa. Super. 2004)
. Ordinarily, “this Court must conduct an independen t review of the record to discern if there are any additional, non
- frivolous issues overlooked by counsel.” Commonwealth v. Flowers , 113 A.3d 1246, 1250 (Pa. Super. 2015) (footnote and citation omitted). However, this Court recently held Flowers was not applicable when an appellant properly files a pro se response to an Anders brief. Commonwealth v. Bennett , --- A.3d
--- , 2015 WL 5472807, at *4 (Pa. Super. 2015). Therefore, our review of the record in this case is limited to the issues raised b y counsel and Appellant in their respective filings. Id. at *5. Instantly, we are satisfied that counsel has complied with the technical requirements of Anders and Santiago
. First, counsel has provided a

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procedural and factual summary of the case with re ferences to the record. Anders Brief at 3
- 8. Second, counsel advances relevant portions of the record that arguably support Appellant’s claims on appeal. Id. at 8 - 10; 12 - 14. Third, counsel concluded Appellant’s appeal is frivolous. Id. at 8. Lastly, counsel has complied with the requirements set forth in Millisock
. As a result, we proceed with our independent review of the record. In his first issue, Appellant argues the evidence was insufficient to convict Appellant of murder of the third degree bec ause the Commonwealth failed to prove his “actions on May 24, 2012[,] criminally caused Raymond Moore’s death on May 30, 2012.” Anders at 8. Specifically, Appellant argues Moore’s death “cannot be considered a natural and foreseeable consequence of his a cts[,]” because “Dr. Collins said the brick blows inflicted
non - fatal injuries.” Id. at 9 (emphasis in original). In his second issue, Appellant argues the evidence was insufficient because “the Commonwealth failed to prove beyond a reasonable [doubt tha t] he did not act in self
defense.” Id. at 12. Our standard of review regarding the sufficiency of the Commonwealth’s evidence is well settled. “In reviewing the sufficiency of the evidence, we consider whether the evidence presented at trial, and all
re asonable inferences drawn therefrom, viewed in a light most favorable to the Commonwealth as the verdict winner, support the ... verdict beyond a reasonable doubt.” Commonwealth v. Patterson , 91 A.3d 55, 66 (Pa.

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2014) (citation omitted), cert. denied , Patte rson v. Pennsylvania , 135 S. Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly circumstantial evidence and any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.” Commonwealth v. Watley , 81 A.3d 108, 113 (Pa. Super. 2013) ( en banc ) (internal quotation marks and citation omitted), appeal denied , 95 A.3d 277 (Pa. 2014). As an appel late court, we must review “the entire record ... and all evidence actually received[.]” Id. (internal quotation marks and citation omitted). “[T]he trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is fr ee to believe all, part or none of the evidence.” Id. (citation omitted). “Because evidentiary sufficiency is a question of law, our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Diamond , 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania , 135 S. Ct. 145 (2014). “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. Tielsch , 934 A.3d 81, 94 (Pa. Super. 2007) (citation omitted). “Third
- degree murder does not require the specific intent to kill, though it does require malice.” Commonwealth v. Street , 69 A.3d 628, 631
- 632 (Pa. Super. 2013).

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“Malice ex ists where there is a 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.” Tielsch , supra . Further, if a defendant presents evidence raising an issue of self
defense, the Commonwealth has the burden to disprove it beyond a reasonable doubt. Commonwealth v. Houser , 18 A.3d 1128, 1135 (Pa. 2011). The Commonwealth meets that burden if it proves a ny one of the following: (1) the defendant was not free from fault in provoking or continuing the conflict that resulted in the killing; (2) the defendant did not reasonably believe he was in imminent danger of death or serious bodily injury, and it was no t necessary to kill in order to avoid that danger; or (3) the defendant violated a duty to retreat or avoid the danger. Commonwealth v. Mouzon , 53 A.3d 738, 741 (Pa. 2012). Further, “[a]lthough the Commonwealth is required to disprove a claim of self
def ense ... a [fact
- finder] is not required to believe the testimony of the defendant who raises the claim.” Houser , supra (internal quotation marks and citation omitted). Nonetheless, “the Commonwealth cannot sustain its burden of proof solely on the fact fi nder’s disbelief of the defendant’s testimony.” Commonwealth v. Torres , 766 A.2d 342, 345 (Pa. 2001). After careful review, we conclude that the trial court’s Rule 1925(a) opinion fully sets forth Appellant’s claims, identifies the proper standard of

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rev iew, discusses the relevant law, and explains the basis for its conclusion that said evidence was sufficient to support its verdict and the Commonwealth disproved Appellant’s claim of self
- defense beyond a reasonable doubt. Instantly, we have carefully re viewed the entire record and Appellant’s arguments, and we conclude that the thorough and well
reasoned opinion of the Honorable Barbara A. McDermott is in agreement with our own views. Accordingly, we adopt the trial court’s February 2, 2015 opinion as o ur own for purposes of our appellate review. 7 

# See Trial Court Opinion, 2/2/15. Appellant has raised additional issues in his pro se brief in response to counsel’s Anders brief, which we address as follows. 8 

# Appellant contends, in a one sentence argument, that the testimony of witness, Cathy Moore, was inconsistent, and therefore should have been discredited. Appellant’s Pro Se Brief at 8. A claim implicating the credibility of a witness raises a weight of the evidence claim. We begin by acknowledging th at “[a] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed.” Commonwealth v.

____________________________________________ 7 

# The parties are directed to attach a copy of the trial court’s February 2, 2015 opinion to this memorandum in the event of further proceedings. 8 

# As previously noted, we disposed of Appellant’s primary contention, that the evid ence was insufficient to convict him of murder of the third degree, as frivolous.

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Thompson , 106 A.3d 742, 758 (Pa. Super. 2014) (citation omitted). Further, it i s well established that it is for the factfinder to determine the weight given to the evidence produced at trial. Commonwealth v. Ferguson , 107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted). Because it is the role of the factfinder to weigh the evid ence, an appellant seeking to challenge the weight of the evidence carries a heavy burden.

If the factfinder returns a guilty verdict, and if a criminal defendant then files a motion for a new trial on the basis that the verdict was against the weight of the evidence, a trial court is not to grant relief unless the verdict is so contrary to the evidence as to shock one’s sense of justice. Id. We also highlight that “[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.” Commonwealth v. Gonzalez , 109 A.3d 711, 723 (Pa. Super. 2015). “[O]nly where the facts and inferences disclose a palpable abuse of discretion will the denial of a motion for a n ew trial based on the weight of the evidence be upset on appeal.” Commonwealth v. Morales , 91 A.3d 80, 91 (Pa. 2014) (emphasis in original; citation omitted). Pennsylvania Rule of Criminal Procedure 607 pertains to challenges to the weight of the evide nce and provides, in relevant part, as follows.

Rule 607. Challenges to the Weight of the Evidence

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- 13 - (A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before sentencing; (2) by written motion at any time before sentencing; or (3) in a post
- sentence motion. Pa.R.Crim.P. 607(A); see also Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court are waived and cannot be raise d for the first time on appeal[]”) . Our Supreme Court has explained that preserving a weight of the evidence claim in the trial court is important because the failure to do so

“ deprive[s the trial] court of an opportunity to exercise discretion on the que stion of whether to grant a new trial.” Commonwealth v. Sherwood , 982 A.2d 483, 494 (Pa. 2009) (footnote omitted), cert. denied , Sherwood v. Pennsylvania , 559 U.S. 1111 (2010). In this case, Appellant did not challenge the weight of the evidence in his p ost - sentence motion. See Appellant’s Post
- Sentence Motion, 12/1/14, at 2 (solely raising a claim that the trial court abused its discretion in sentencing Appellant). Additionally, we have reviewed the record and Appellant did not raise this issue at any time during the proceedings in the trial court. Instead, Appellant raises this issue for the first time on appeal. As a result, we conclude Appellant’s weight of the evidence claim is waived

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for want of preservation. See Pa.R.A.P. 302 (“[i]ssues not ra ised in the lower court are waived and cannot be raised for the first time on appeal”). Finally, Appellant raises claims of ineffective assistance of trial counsel. Appellant’s Pro Se Brief at 8
- 9. However, said claims are not ripe for review, but may be raised in a collateral proceeding. O ur Supreme Court recently reaffirmed the holding of Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002) in Commonwealth v. Holmes , 79 A.3d 562, (Pa. 2013). Therein the Court held “claims of ineffective assistance of counsel are to be deferred to [ Post Conviction Relief Act, (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546] review; trial courts should not entertain claims of ineffectiveness upon postverdict motions; and such claims should not be reviewed upon direct appeal.” Id. at 576. The Holmes Court noted two narrow exceptions for “extraordinary circumstances” to the broader rule, holding “where the trial court, in the exercise of its discretion, determines that a claim (or claims) of in effectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted,” and allowing review for “good cause,” such as the shortness of a sentence, of “multiple, and indeed comprehensive, ineffectiveness cla ims” if such review is accompanied by a knowing, voluntarily, and express waiver of PCRA rights. Id. at 577 - 578. Instantly, neither of these exceptions applies. Therefore, Appellant’s ineffective assistance of counsel issues are premature and we declin e to

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address the merits. This is without prejudice to Appellant’s right to present these ineffectiveness issues in a timely PCRA petition. Based on the foregoing, we conclude the issues raised in the Anders and pro se briefs either lack merit or are not p roperly before us at this juncture. As a result, we agree with counsel’s assessment that the appeal is wholly frivolous. Accordingly, we affirm the trial court’s November 24, 2014 judgment of sentence and grant counsel’s petition to withdraw. Judgment of sentence affirmed. Petition to withdraw as counsel granted. Application for remand denied as moot. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/23/2015

## ' '

. ~ , _, ~ 

# :, _ 

# , .._. 

# - - .. I The d~r<:fldanJ had a pr

i or mbllinl in this manor, on Jenuary 7 , 2014 before th~ Honorable Teresa SatmirnJ. 1 Ar lh!l ti m e . the Commo

n wealth moved f

O no /It prQJ,Jt the S f

mpte A!.Uult charge

. On December 8 , 2014, the d e fendant 

### filed a timely Notice of Appeal and trial counsel moved to withdraw
. On Decemb e r 10, 2014, appellate coun s el w as appointed
. On De c ember On Dec e mber 3, 20 I 4, thi s Court denied reconsideration of sentenc e. imposed a sentence of nine to twenty years in pri s on for Third Degr e e Murder, w i th no further p e nally for PIC
. On December I, 2014, the defendant moved for reccnsideratlon of hls sentence . P11>ctdural Jilstory On June 13, 2012, the defendant, M i ch a el Bartlow, 

### was arrested and ch arg e d with Third Degree Murder, Possession of an Instrument of Crime (PIC), and Simple Assault On August 18 , 2014 the d e fendant appeared before this Court and walved his tight to be tri ed by a jury
. Th i s Court proceeded to conduct a waiver trial. I On August I 9, 2014, this Co u rt found the defendant to be guilly of Thlrd Degree Murder and P!C. 2 O n Nov e mber 24, 2014, nRer reviewing pre s enrcnce nnd mcntnl hc n llh rep o rt s , this Court McDermott, J
. February 2, 2015 

## FEBO 2 2015 CrimfnalAppeate Unit First Judicial Dis t rict of 

## PA MICHAEL BARTLOW 

# FILED : 3534 EDA 2014 v.

Immediately after the attack that is the subject of this case, Mr. Rnymond Moore was taken 

### by ambul ance to Albert Einstein Medical Center
. During the ambulance ride, his 

### heart stopped
. He wBS kept on llfo support for o n e week when Ms. Moore allowed his life support to be withdrawn , end he di ed
. N
. T. Augus! 19, 2014, p . 52
. Dr
. Gary Lincoln Collin s , Deputy Chief Examiner for the Philadelphia Medical Examiner's Office, gave expert testimony that Mr. Moore sustained nasal bone and jaw fractures in the attack , While 

### he was nt the hospital end the medieel personnel w e re trying to stab il i , .e his jaw, the

_ )' placed a tracheostomy tube in h i s neck
. The tube became obstru c ted with blood , 

### causing Mr
. Moore to be u n able to breathe for an extended period, thus causing irrev e rs i ble brain injury
. Brain injury due to a closged tracheostomy tube is a known risk of surgical treatment for head and jaw Injuries like the ones 

### Mr
. Moore sustained
. Id. nl 124 · 138, Cathy Mo o re lived with her hu s band Raymond n t an apartme n t complex on the 600 block of East Church Lane in 2012
. The defendant knew them and lived in the same npnrtment complex
. Pri or to 

### May 24, 2012, the defendant and the Moores had a friendly relationship
. On the morning of May 24, 2 012 , Raymond Moore left the npartment to run errands ; w h en he returned in the afternoon, Cathy Moore noti ced that ho seemed very Inebri ated
. When she a s ked the defendant tiled for nunc pro tun e reinstatement of his ability lo flle a Rule 1925(b) s tatement , with such s tatement appended thereto. This Court granted reinstatement with no objec tion from the Commonwealth end • o . cep t ed the statem<:nt as ti mcly on January 30, 2015
. J 5, 2014 , this Court is s ued an order pursuant to Pa.R.A.P
. 19 2 5(b)
. On De ce mber 24, 2014, the defendant filed Cot an ex tens i on of time in which to file a r e sponse io thi s Court's Rulo I 92S(b) order
. On December 3 

### J, 20 J 4 , this Court granted a one-week extensio n . On January 28, 20 I 5, : CP-51-CR

- 0009398·2012 COMMONWEALUI OF PENNSYLVANIA JN THE COURT 011 COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CIUMINAL TIUAL DIVISION
. 

## Circulated 10/27/2015 11:20 AM'Jn her prdhnln1ty hearing testimony, Cathy Moore ,ald that ,he did not know her husband to carry a knife. However, et trlal, ,he e)lpblnt.d lhat she had been eenfused u to what the queslfon meant at the prallminary hearln&1 end that In any case, he wu not <41T}'lng o lo,lfc during the eonfronr.Jlo» ftl 1"11•· Id. ,r SJ,S4. are sufficient to establish all elements of the offense beyond o reasonable doubt, Commonwealth


### v. Baumbommers, 960 A.2d 59, 68 (Po. 2008). The Commonwealth may sustain its burden of proving every clement of the crime beyond a reasonable doubt by means 

# or wholly the defendant acted in self-defense. In arguing that the e~idence is insufficient to establi~h the defendant's criminal culpability, the defendant argues both that the Commonwealth has not established causation and that the Commonwealth has not established that the defendant was not acting In self

- defense , Evidence presented nt trial is sufficient when, viewed in the light most favorable to the Commonwcnlth as verdict winner, the evidence and all reasonable inferences derived therefrom On appeal, the defendant argues that the evidence was insuffici e nt to establish the defendant's guilt for Third Degree Murder and l'IC, that the verdict was against the weight oflhe evidence, and that trial counsel was ineffective for failin g to call Tamika Brooks to testify that Id. at 36·45. The aueck was recorded on video. Id. ot 178-192. M · r . Moore often carried a pocket knife, but on the night of May 24th, 20!2, he left the pocket knife in his apartment on his dresser
. Id at 52
. J him in the head. Mr. Moore fell to the ground. The defendant picked up the brick and hit him in the head with it again, and then kicked him twice. Then he and the young woman walked away
. whore Ms
. Moore wns standing
. The defendant then grabbed a brick and threw it at him, hitting evade him , When Mr
. Moore grew I ired and winded, he walked back toward the parked car parked
. The two men began arguing; and they each took n swing at the other, but neither blow landed
. Then Mr. Moore chased the defendant, who ran between and around parked cars lo

arrive, the defendant came back outside
. A young woman followed him out to where the car wos As Mr
. Moore was attempting to start the car and Ms
. Moore was waiting for police lo lo start the car, but was unable to do so. Jd at 28-34. tell the dispatcher what had happened. The defendant, back in his epanment, opened u window overlooking the car and told Ms. Moore that he was going to "fu c k up" her husband. Ms. Moore was aucmptlng to start the car so thot she could operate the power windows and raise them, but it would nol start. Mr
. Moore came out lo the car , moving in a wobbly manner. He also attempted he was unable to do so. They argued obout his use of the car, and at that point she called 911 to report the attempted theft of her car. They continued to argue, and as they were doing so, the keys slipped from the defendant's hands. Both of them dove to retri e ve the keys. She grabbed them first, and the defe~dant slapped her across the face and went back inside. Id. st 20-28. After the defendant retreated to the apartment building, Ms. Moore called 91 l again to heard her oar alarm going olf. She went outside and saw the defendant attempt to start the car; he could not use the car. When she handed h i m lhe twenty dollars, the defendant said that he hod actuelly paid seventy-five dollars to . use the car . She refused to give him thnt amount, 1111d he refused to return the keys lo her and to take the proffered 1wenty dollars. She then threatened to call tho police in order lo report thnt her oar was being stolen. Id
. nt 18-20. As Ms. Moore was searching for her title in order to confirm ownership to the police , she Cathy Moore objected to Ibis arrangement and shouted upstairs for the defendant to return the car keys to her
. The defendant said that he had paid twenty dollars to be able to use the cur so he could take his aunt home. Ms. Moore offered him twenty dollars and told him that order lo lake his aunt home. Id. al 5-18. him for their car keys, he said that the defendant had them, as he had asked to borrow the car i n 

## Circulated 10/27/2015 11:20 AM6 fronl ofil. Two people who had been trying lo chang e the v an's tire wore severely injured , and van that was p u lled to the s i de of the ro a d; U1e 

### van then s tru ck a t o w tru c k thn1 w as slopped 

### Jn w as driving e rratically , cau s ing an other driver to swe rve. Th is othe r driv er th e n s truc k a d isab l ed In Co mmon w ealth v , 

### Spout, 94 A
. Jd 367 (Pa
. Super. 201 4 )(cn bane) , an ineb rtated driver S u per . 2 008), a/foe. d

e nied, 9 60 A. 2 d 838 (Pa. 2 0 08)(cmpha si s a dd ed)
. condu c t w a s a direc! n111I substantlal foctor in produ cing the death e v en though other fa c tors combined 

### with thal conduct lo ac h i e v e th e result
. Commonwealth v . Nunn, 941 A.2d 7S 6 (Pa
. cause of the vl c tim's de ath lo order to establish the causal conne c tion required for a finding of criminal caus ati on; c riminal re s pon si bility may be properly asses se d o.ga lnst an i n dividual whose by !his title or by the law defin i ng the offen s e." The dcfeedanrs condu c t ne e d n o t be th e o nly rel ati o nship betw e en the cond u ct and result s atisfies any add i tional cuus al requirements imp os ed the decedent ' s death
. I 8 Pa
. C
. S
. § 303 est abti s hes that "[clon duct i s tho cause o f a re s ult when: (I) it i s an antecedent but for which the res u lt in question W o uld n ot hav e oc c urr e d; and (2) the arc too remote or attenuated from the u n d e rlying assault to hold him criminally a ccountable for The defendant argu e s thnt the deceden t 's dealh was caused by medi cal c i rcumstances that under th e la w; thi s claim i s mcrl tl ess , and I s walking awny from you
. The defen d ant's attack 

### was both co wardly and unju s lili ablc 

### I· 

## l reas o nable belief of imminent dan ger , a s when your much o lde r , i n ebri ate d op ponen t 

### is w i nded Il e re, ii is cl ear th al the defen d ant had a du ty to retreat, Indeed, as a fa c tual matter, he did n ot need even to retre at , because h is ad v ersary was in 

### the pr o cess of d o ing so when th e d e f e ndant made hi s f

atal attack
. Furth e r, there can be 110 justificati o n defen s e where there is n o 1143 (l' a. Super
. 2009)( c ltin g Commo n wealth v , Palmer, 3 59 A
. 2d 3 75 (P o. 1976) , dislin g ui s hed

o n other grounds, Co mmonwealth v. Pressley, 887 A. 2 d 2 2 0 ( P o. 2 0 05 ) ).

defend ant knows Iha! avenue of retre at Is nvallablc
. Com monwealth v . Ventura, 975 A
. 2d I \ 211, The use of deadly for ce is not justified where there is an avenue ofretreal, as long as the Harris, ?O J A

. 2d 441, 449 (P a . 1 9 97). Co mmonwealth v. Samuel, 590 A,2d 1245, 1247·48 (Pa. 1 9 91); se e also Comm o nwealth v . "(a)
... reasonably believ e d 1h al he w as in imminent d ang e r of d e ath or seriou s bodily injury and that ii was nec es s ary to use deadly force
. against the vlctim toprevent su c h harm ; (b)
.. . was fr ee from faull in provoki ng the dlfficu!ly wh i ch culminated in (he slayin g; and (c) ... did not v l olaie any duty t o retrea t " the defendan t: 

### The defendant argu e s that the Commonwe a lth did n o l disprove th e defendant' s claim of justlflcauon. To prevail on a justiflcuti on defense, there mu st be evide n ce presented Ih a ! s hows Commonwea/1/i v . Thoma s , 54 A
. 3d 332, 33 S- 36 (Pa. 201 2)
. Malice can be Inferre d from the u s e of 

### a deadly w eap o n upon a vital part of lhe vic ti m's bod y . D unphy, 20 A.Jd at 1219 (ciling Commonw eo lthv, D/Stefano, 784 A.2d 574, S82 (199 5 ). A wickedness of d i sposition, hardnes s of h e art , cruelly , reckle s sness of consequen c es , nnd a mind regardless o f s ocial duty, alth o ugh o particular per s on may not b e intended lo 

### be injured
. Malice mn y be found where the de fe ndant consciously disregnrded en unjustified and extremely high ri sk lh at hia action s mighl cause se ri ous bo d ily Injury
. . Comm o nw o allh 

### v . Santos, 816 A
. id 360, 363

- 64 (2005). Malice Is defined as: 2502(c) ; Commonwealth v. D unphy, 20 A
. Jd 1215, 1219 ( Pa
. Super 20 1 1 ); S e e also; the s pecific i n tent to kill nor c ommitted in the c o mmis s lon of n feloni o us a ct, I H Po
. C.S. § Murder in the Third Degree Ls any unlawful killing committe d with malice, bUI without purv i ew of the fact-tind e r. Commonwealth v, Treiber, 874 A
. 2d 26, JO (P a. 2005). believe 

### all
. p an, or none of 

### the e vid e nce, and credibility dete rminations rest solely within 

### the Commonwealth v. Brooks, 7 A.3d 8 52 , 856-57 (Pa. Super
. 2010)). The fa c t-Jlnder is Irce lo ci r c um s t antial evidence
. Comm o n wea lt h v. Estepp, 17 A.ld 9 39, 943 (Pa
. Super
. 2011) (clllng 

## Circulated 10/27/2015 11:20 AMw as a v i t al part of the em e rgen c y medi c al tr eatmen t n e cessitated hy the defen dant' s m alici o u s b eha vior
. A clo g ged tra c heo sto my rube i s a kno wn 

### ri sk of that procedu r e, an d on e th at the d e ced e nt (lik e any othe r s imil arl y - s ltuated p ati e n t) c ou ld not av oi d. Brain d e ath , and th e d e cedent 's eve ntu al wi thdrawal fr o m life s upport , ne ces s arily foll o wed therefr o m . Be cau s e the defe ndant 's a c tions w ere o dire c t and subs t aniiel f a ct or in b ringing about the de f e nd ant ' s d eath , th i s c lai m i s merltless. In claiming that the verdict i s again s t the weig h t of the evidence, th e defend ant argues that C athy Moore's testimony is so inc ons i stent thn t it cannot be relied upon to s up po rt a
c o nvl cti on . Weight of the e vi d ence an d s uffi c iency o f the evidence arc d i scret e i nqu iri es . An
ar gumen t th at th e verdict is co ntrary to th e we igh t of th e evi d e nc e con c ed es ! hat th e r e is
s uffic ie nt e vi den ce to s us tain the v erd ict bu t cont e nd s , ne v erthel es s, th at the ve rdi c t is ag ai n s t th e
w eight of the e viden c e . Com m o nw eal th v . D avis , 799 A.2d 860, 865 (Pa
. S u pe r. 2002)
. An
all e gatio n th at th e verdict is ag ai nst the w e ight of the evidence is addres s ed t o th e s ound d isc reti o n of the trial court . Comm o n we alth v . Dupre, 866 A
. 2d 1089 , I IO l (Pa
. Super
. 2 0 05)(clltng Commonwealth v . S11/liva11, 820 A. 2d 795, 805-806 (Pa. Super
. 20 0 3) ; Co mm o nwealth v, Widmer, 744 A.2d 7 45 , 751 , 7 5 2 (Pa. 2000)
. "The f a ctflnder is free to be lie v e all , p art, o r n o ne of the evidence and to det e rmi n e the cred i b i lity of th e w i tnesses." Comm o n w ealth v, Diggs, 94 9 A
. 2d 873, 8 7 9 (P a. 2008)
. A new trial
s h ou l d n o t be gr anted be c aus e o f a mer e conflict i n tho testi m on y o r becau se Urn jud g e o n the
s am e fac t s wo uld have arriv e d ot n d iff eren t c o ncl usi on. Co mmonwealth v . C lay, 64 A
. 3 d I 0 4 9 , 105 5 (P a. 2 0l3l(clrl n g Widmer
. 7 44 A
. 2 d at 752)
. T he Superior Court hes e x p lain ed lhat the te s t Is wh e th er th e evidence is "s o te nuo u s, v o g u e an d un certain that the verd ic t shoc k s th o
co ns ci ence of the court." Comm o nw ea lth v . Sullivan, 820 A.2d 795, 806 (Pa
. S u p er . 200 3)
. F o r

7 R e menter arose from a s us tai n e d and bmt al ass ault on s wo man, who w a s ru n o ver wh i le try i ng to 

### get help from pa ssi ng m o t o ris t s a s her assailant chased her
. H e r att ac ker 

### was fo u nd guilty of her murder, and his con vi cti on was upheld on appeal. "In our v i ew , th e fat al r e s u lt of

. ap pe ll ant's assault is not re nd e r e d u nfo reseeabl e m ere ly because th e pr e ci se an~ 11 c y of d eath, l .e. th e [ passi ng] s t ati on w a gon , cou ld n ot h ove b e en foretold
. Appell ant pe rp etrate d o d ead ly o sso ult
on th e d e ced e nt in and ar o u nd on ou lo mob i l e o n a publi c str ee t w ith oth er movi n g v e hicle s In cl ose pro x imity
. " Id at 1308
. L i kewi s e, he r e, the d e fe ndan t l e veled a h o rrify i ng assault at th e de c ed e nt, b r eakin g hi s j aw , Md even after the d ecede nt fell uncon s c ious t o the ground, the d e fe n dant con tinued his
attack, striking his head again and bi · eaki 11 g hi s nose, and then kicking him
. Th e tro c h oo t o my the people in the swerv i ng c ar we re In j u re d as well. The inebriated drive r did n o t strike an yo ne, b ut 

# w •• neverthel ess fo u nd to be c rimina lly c ul pab le for the agg ra vat e d ass ault s because hi s unlawful b eh a vi o r n ec ess it at ed the s werv e , en d thu s it w a s a dir e ct ond su b s tantial c ause o f'th e resulti n g Inj u ri es . In Commonwe a lth v. R e m e nte r, 598 A
. 2d 13 00 (P a . Super
. 1 99 I), the S up e ri o r Court se t fo rth a two
- part te s t for determi n ing c rimin al c au sation
. F i rst, the de fendant ' s con duct must be an antecedent, but for whic h th e re s ult In ques tion would not hov e occurred. 

### Id
. at 1305; 1 8 Pa.C
. S. 

### § 303(a)(I). A victim's d eath cann o t be entirely attributable to o th er fa ct ors; rather, there
mu s t exist a "causal connectio n b e tw e en the c on duct and the result of condu ct ; an d c ausal
c o nne c ti o n requi r es s o m e thin g m ore th an mere co in c idenc e as lo time an d pl ace. " R e m e nte r, 5 9 8 J\
. 2 d at I 305, n. 3
. Second, the results of tho defendant ' s a c tion s cann o t be so extra o rdin arily remot e or attenuated that i t wo u l d be unfair l o h o l d the defendant c riminully r es po n si bl e , Id D I !JOS
. 

## Circulated 10/27/2015 11:20 AM

## ~ ~ 10 l N o r do es the defendant

•pcclfy w h e th er he unders!and, the oe «s slty of waiving rev i e w und er th e Post-Conviction Revie w A, 1 , or w hether ho i:, ready to rn o.k e such a: wetver
. Se

, Ho/ m u , 19 AJd t\l 56-4 . 

### BY THE COUR T , Fo r the foregoin g re asons, the defend an t 's j ud gm ent of sen t en ce s h o ul d b e affirme d. i n this c as e. 1 canno t est ablish any e xtraord i nary ci rcum s tanc e und e r 

### Holme s that wo u ld c o mp e l unitary r e v ie w ch anged the outcome of the trinl, even if the Court h o d accepted it as cr e d i ble, the defendant dang er, even If the de cede n t h a d a knife
. B e cause th e proffered tes ti m o n y would not have h i m . Thus th er e wa s no ground at lhlll ti me for th o d e fe n dant lo belie ve he w as In immi n e nt th e defenda n t, it wa s obvious th at hehad g i ven up th e c hase at the ti m e the defendant atta c ked

9 4 SH C om monwealth v. D om

nr·, 826 A. ld 831 (Pa. 2 0 0) ) . However, even if the defend an t could est ablish th at h e had brand is he d a knife while he chas ed e xtraordin ary c irc um s t an ces. In f ac t, such c l rc ums t ances arc no t present , C athy M o ore g ave
cr e dible t es tim o ny th at the d eced ent wa s not armed w i th a knife du rin g th e fatal au ac k. circum s tances comp e l such review. Hero, th o d e f e ndant has made n o argument as to s uch d o es m ake clear that such cl aim s are rarely to b e cnt e rtalned , an d o n l y where extraordin ary 

### H o lme s do es n o t co mpletely clo se the do or on i ne ffectiv e nes s c l ai m s for d i re c t r evi e w, but i t d e ferr e d to p ose-c o nv i c tio n re v i e w r athe r th an on post- verdict mo ti o n, or du ring direc t appeal. ab se nt certain specified c i rcumstances, clai ms o f Ineffective assistan c e of counsel are to b e In Commo n we a lth v. Holmes, 79 AJ d 562 (Pa. 2013), o ur S up reme Court held that fatal en co u n ter. Finally, tho defendant a s ks for a h earing wider 

### the "Bom a r ex cep ti on" to establi s h ineffectiveness of tri al coun s el for failing Co call Tamika Brook s , who w i tn e ssed the allack
. 4 The defend ant c l ai ms !h at Bro o ks w o uld te s ti fy that the d ece d e nt w as brandish in g a knife d u dng the c ase . Th i s C ourt finds he r testi mony lo be credib le, This claim is m eri tl e s s. i ncl u di n g the vid e o re c o rdin gs, nnd wa s comp l etel y co ns i stent wi th all r e le v ant evidence in this th e defen d ant at th e ti m e he was brutall y att a cked that there can be n o di s pute as to the defe n dant's guilt Ms
. Mo o re's testimony was uncontradlcted by the d oc umentary evidence, c ulp ability in th is m o lter
. Again , i t is s pedfi c ully because the d ece dent wa s walking a way from t estim o ny is beli ed by the amp l e phys i c al and doc u m e ntary evide nce th at es tablish es, h is 

### Here, the def

en d an t's argument 

### a. to s upp o sed incon~lslenc i cs in Cathy Moore's 2 J3 , 2 3 6 (Pa. Sup e r . 1 9 97)
. one to prev ail on n chall e nge of the w e igh! o f th o evi d ence, the ve r di c t mu s t be so contrary lo the evid e n c e 

### e s to s ho c k o n e' s s en s e of j u s ti ce . I d. ( ci t i n g Comm o nwealt h v . Goodwine, 692 A
. :?.d 

## Circulated 10/27/2015 11:20 AM