J-S42030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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 murder 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 Anders2 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 careful 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 Einstein 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his life support to be withdrawn and he died.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 Medical 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 the 

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 Moores 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 able to use the car so he could 
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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. She 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 

order 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 attempted 

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 husband. 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, but 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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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.

Trial 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 November 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 for 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 review.

[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 Commonwealth 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 filed 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 Anders

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 Appellant’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, 593 (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 

record; (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 articulate 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, counsel must comply with the following obligations to 

his client.
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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 judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). 

Ordinarily, “this Court must conduct an independent 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 by 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 references 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 because 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 acts[,]” 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 that] he did not act in selfdefense.” 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 

reasonable 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, Patterson 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 appellate 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 free 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 exists 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 selfdefense, 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 any 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 not 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 selfdefense ... 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 finder’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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review, 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 reviewed the entire record 

and Appellant’s arguments, and we conclude that the thorough and wellreasoned 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 our 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 that “[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 evidence 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 is 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 evidence, 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 new 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 evidence and provides, in relevant part, as follows.

Rule 607. Challenges to the Weight of the 

Evidence
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(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 raised 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 

question 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 post-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 raised 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. Our 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 

ineffectiveness 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 claims” 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 decline 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 properly 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 prior mbllinl in this manor, on Jenuary 7, 2014 before th~ Honorable Teresa SatmirnJ. 

1 Ar lh!l time. the Commonwealth moved fO no/It prQJ,Jt the Sfmpte A!.Uult charge. 

On December 8, 2014, the defendant filed a timely Notice of Appeal and trial counsel 

moved to withdraw. On December 10, 2014, appellate counsel was appointed. On December 

On December 3, 20 I 4, this Court denied reconsideration of sentence. 

imposed a sentence of nine to twenty years in prison for Third Degree Murder, with no further 

penally for PIC. On December I, 2014, the defendant moved for reccnsideratlon of hls sentence. 

P11>ctdural Jilstory 

On June 13, 2012, the defendant, Michael Bartlow, was arrested and charged with Third 

Degree Murder, Possession of an Instrument of Crime (PIC), and Simple Assault On August 

18, 2014 the defendant appeared before this Court and walved his tight to be tried by a jury. 

This Court proceeded to conduct a waiver trial. I On August I 9, 2014, this Court found the 

defendant to be guilly of Thlrd Degree Murder and P!C.2 

On November 24, 2014, nRer reviewing presenrcnce nnd mcntnl hcnllh reports, this Court 

McDermott, J. February 2, 2015 

FEBO 2 2015 

CrimfnalAppeate Unit 

First Judicial District of PA 

MICHAEL BARTLOW 

v. : 3534 EDA 2014 FILED 

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

taken by ambulance to Albert Einstein Medical Center. During the ambulance ride, his heart 

stopped. He wBS kept on llfo support for one week when Ms. Moore allowed his life support to 

be withdrawn, end he died. N.T. Augus! 19, 2014, p. 52. 

Dr. Gary Lincoln Collins, 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 were trying to stabili,.e his 

jaw, the_)' 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 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 Moore lived with her husband Raymond nt an apartment complex on the 600 block 

of East Church Lane in 2012. The defendant knew them and lived in the same npnrtment 

complex. Prior to May 24, 2012, the defendant and the Moores had a friendly relationship. On 

the morning of May 24, 2012, Raymond Moore left the npartment to run errands; when he 

returned in the afternoon, Cathy Moore noticed that ho seemed very Inebriated. When she asked 

the defendant tiled for nunc pro tune reinstatement of his ability lo flle a Rule 1925(b) statement, 

with such statement appended thereto. This Court granted reinstatement with no objection from 

the Commonwealth end •o.cepted the statem<:nt as timcly on January 30, 2015. 

J 5, 2014, this Court issued an order pursuant to Pa.R.A.P. 1925(b). On December 24, 2014, the 

defendant filed Cot an extension of time in which to file a response io this Court's Rulo I 92S(b) 

order. On December 3 J, 20 J 4, this Court granted a one-week extension. On January 28, 20 I 5, COMMONWEALUI OF PENNSYLVANIA : CP-51-CR-0009398·2012 

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 insufficient 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 failing 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 "fuck 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 retrieve 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 him 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 in 

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fronl ofil. Two people who had been trying lo change the van's tire wore severely injured, and 

van that was pulled to the side of the road; U1e van then struck a tow truck thn1 was slopped Jn 

was driving erratically, causing another driver to swerve. This other driver then struck a disabled 

In Commonwealth v, Spout, 94 A.Jd 367 (Pa. Super. 2014)(cn bane), an inebrtated driver 

Super. 2008), a/foe. denied, 960 A.2d 838 (Pa. 2008)(cmphasis added). 

conduct was a direc! n111I substantlal foctor in producing the death even though other factors 

combined with thal conduct lo achieve the result. Commonwealth v. Nunn, 941 A.2d 7S6 (Pa. 

cause of the vlctim's death lo order to establish the causal connection required for a finding of 

criminal causation; criminal responsibility may be properly assessed o.galnst an individual whose 

by !his title or by the law defining the offense." The dcfeedanrs conduct need not be the only 

relationship between the conduct and result satisfies any additional cuusal requirements imposed 

the decedent's death. I 8 Pa.C.S. § 303 estabtishes that "[clonduct is tho cause of a result when: 

(I) it is an antecedent but for which the result in question Would not have occurred; and (2) the 

arc too remote or attenuated from the underlying assault to hold him criminally accountable for 

The defendant argues thnt the decedent's dealh was caused by medical circumstances that 

under the law; this claim is mcrltless, 

and Is walking awny from you. The defendant's attack was both cowardly and unjusliliablc I· 

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reasonable belief of imminent danger, as when your much older, inebriated opponent is winded 

Ilere, ii is clear thal the defendant had a duty to retreat, Indeed, as a factual matter, he 

did not need even to retreat, because his adversary was in the process of doing so when the 

defendant made his fatal attack. Further, there can be 110 justification defense where there is no 

1143 (l'a. Super. 2009)(clting Commonwealth v, Palmer, 359 A.2d 375 (Po. 1976), dislinguished 

on other grounds, Commonwealth v. Pressley, 887 A.2d 220 (Po. 2005)). 

defendant knows Iha! avenue of retreat Is nvallablc. Commonwealth v. Ventura, 975 A.2d I \211, 

The use of deadly force is not justified where there is an avenue ofretreal, as long as the 

Harris, ?OJ A.2d 441, 449 (Pa. 1997). 

Commonwealth v. Samuel, 590 A,2d 1245, 1247·48 (Pa. 1991); see also Commonwealth v. 

"(a) ... reasonably believed 1hal he was in imminent danger of death or serious bodily 

injury and that ii was necessary to use deadly force. against the vlctim toprevent such 

harm; (b) ... was free from faull in provoking the dlfficu!ly which culminated in (he 

slaying; and (c) ... did not vlolaie any duty to retreat" 

the defendant: 

The defendant argues that the Commonwealth did nol disprove the defendant's claim of 

justlflcauon. To prevail on a justiflcution defense, there must be evidence presented Iha! shows 

Commonwea/1/i v. Thomas, 54 A.3d 332, 33S-36 (Pa. 2012). 

Malice can be Inferred from the use of a deadly weapon upon a vital part of lhe victim's body. 

Dunphy, 20 A.Jd at 1219 (ciling Commonweolth v, D/Stefano, 784 A.2d 574, S82 (1995). 

A wickedness of disposition, hardness of heart, cruelly, recklessness of consequences, 

nnd a mind regardless of social duty, although o particular person may not be intended lo 

be injured. Malice mny be found where the defendant consciously disregnrded en 

unjustified and extremely high risk lhat hia actions mighl cause serious bodily Injury .. 

Commonwoallh v. Santos, 816 A.id 360, 363-64 (2005). Malice Is defined as: 

2502(c); Commonwealth v. Dunphy, 20 A.Jd 1215, 1219 (Pa. Super 2011); See also; 

the specific intent to kill nor committed in the commisslon of n felonious act, I H Po.C.S. § 

Murder in the Third Degree Ls any unlawful killing committed with malice, bUI without 

purview of the fact-tinder. Commonwealth v, Treiber, 874 A.2d 26, JO (Pa. 2005). 

believe all. pan, or none of the evidence, and credibility determinations rest solely within the 

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)). The fact-Jlnder is Irce lo 

circumstantial evidence. Commonwealth v. Estepp, 17 A.ld 939, 943 (Pa. Super. 2011) (clllng 

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was a vital part of the emergency medical treatment necessitated hy the defendant's malicious 

behavior. A clogged tracheostomy rube is a known risk of that procedure, and one that the 

decedent (like any other similarly-sltuated patient) could not avoid. Brain death, and the 

decedent's eventual withdrawal from life support, necessarily followed therefrom. Because the 

defendant's actions were o direct and substaniiel factor in bringing about the defendant's death, 

this claim is merltless. 

In claiming that the verdict is against the weight of the evidence, the defendant argues 

that Cathy Moore's testimony is so inconsistent thnt it cannot be relied upon to support a 

convlction. Weight of the evidence and sufficiency of the evidence arc discrete inquiries. An 

argument that the verdict is contrary to the weight of the evidence concedes !hat there is 

sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the 

weight of the evidence. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). An 

allegation that the verdict is against the weight of the evidence is addressed to the sound 

discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, I IOl (Pa. Super. 

2005)(clltng Commonwealth v. S11/liva11, 820 A.2d 795, 805-806 (Pa. Super. 2003); 

Commonwealth v, Widmer, 744 A.2d 745, 751,752 (Pa. 2000) . 

"The factflnder is free to believe all, part, or none of the evidence and to determine the 

credibility of the witnesses." Commonwealth v, Diggs, 949 A.2d 873, 879 (Pa. 2008). A new trial 

should not be granted because of a mere conflict in tho testimony or because Urn judge on the 

same facts would have arrived ot n different conclusion. Commonwealth v. Clay, 64 A.3d I 049, 

1055 (Pa. 20l3l(clrlng Widmer. 744 A.2d at 752). The Superior Court hes explained lhat the test 

Is whether the evidence is "so tenuous, vogue and uncertain that the verdict shocks tho 

conscience of the court." Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003). For 

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Rementer arose from a sustained and bmtal assault on s woman, who was run over while 

trying to get help from passing motorists as her assailant chased her. Her attacker was found 

guilty of her murder, and his conviction was upheld on appeal. "In our view, the fatal result of 

. appellant's assault is not rendered unforeseeable merely because the precise an~11cy of death, l.e. 

the [passing] station wagon, could not hove been foretold. Appellant perpetrated o deadly ossoult 

on the decedent in and around on oulomobile on a public street with other moving vehicles In 

close proximity." Id at 1308. 

Likewise, here, the defendant leveled a horrifying assault at the decedent, breaking his 

jaw, Md even after the decedent fell unconscious to the ground, the defendant continued his 

attack, striking his head again and bi·eaki11g his nose, and then kicking him. The trochootomy 

the people in the swerving car were Injured as well. The inebriated driver did not strike anyone, 

but w•• nevertheless found to be criminally culpable for the aggravated assaults because his 

unlawful behavior necessitated the swerve, end thus it was a direct ond substantial cause of'the 

resulting Injuries. 

In Commonwealth v. Rementer, 598 A.2d 1300 (Pa. Super. 199 I), the Superior Court set 

forth a two-part test for determining criminal causation. First, the defendant's conduct must be 

an antecedent, but for which the result In question would not hove occurred. Id. at 1305; 18 

Pa.C.S. § 303(a)(I). A victim's death cannot be entirely attributable to other factors; rather, there 

must exist a "causal connection between the conduct and the result of conduct; and causal 

connection requires something more than mere coincidence as lo time and place." Rementer, 

598 J\.2d at I 305, n. 3. Second, the results of tho defendant's actions cannot be so extraordinarily 

remote or attenuated that it would be unfair lo hold the defendant criminully responsible, Id DI 

!JOS. 

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l Nor does the defendant •pcclfy whether he unders!and, the oe«sslty of waiving review under the Post-Conviction 

Review A,1, or whether ho i:, ready to rno.ke such a: wetver. Se, Ho/mu, 19 AJd t\l 56-4. 

BY THE COURT, 

For the foregoing reasons, the defendant 's judgment of sentence should be affirmed. 

in this case.1 

cannot establish any extraordinary circumstance under Holmes that would compel unitary review 

changed the outcome of the trinl, even if the Court hod accepted it as credible, the defendant 

danger, even If the decedent had a knife. Because the proffered testimony would not have 

him. Thus there was no ground at lhlll time for tho defendant lo believe he was In imminent 

the defendant, it was obvious that hehad given up the chase at the time the defendant attacked 

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4 SH Commonwealth v. Domnr·, 826 A.ld 831 (Pa. 200)). 

However, even if the defendant could establish that he had brandished a knife while he chased 

extraordinary circumstances. In fact, such clrcumstances arc not present, Cathy Moore gave 

credible testimony that the decedent was not armed with a knife during the fatal auack. 

circumstances compel such review. Hero, tho defendant has made no argument as to such 

does make clear that such claims are rarely to be cntertalned, and only where extraordinary 

Holmes does not completely close the door on ineffectiveness claims for direct review, but it 

deferred to pose-conviction review rather than on post-verdict motion, or during direct appeal. 

absent certain specified circumstances, claims of Ineffective assistance of counsel are to be 

In Commonwealth v. Holmes, 79 AJd 562 (Pa. 2013), our Supreme Court held that 

fatal encounter. 

Finally, tho defendant asks for a hearing wider the "Bomar exception" to establish 

ineffectiveness of trial counsel for failing Co call Tamika Brooks, who witnessed the allack.4 The 

defendant claims !hat Brooks would testify that the decedent was brandishing a knife dudng the 

case. This Court finds her testimony lo be credible, This claim is meritless. 

including the video recordings, nnd was completely consistent with all relevant evidence in this 

the defendant at the time he was brutally attacked that there can be no dispute as to the 

defendant's guilt Ms. Moore's testimony was uncontradlcted by the documentary evidence, 

culpability in this molter. Again, it is spedficully because the decedent was walking away from 

testimony is belied by the ample physical and documentary evidence that establishes, his 

Here, the defendant's argument a. to supposed incon~lslencics in Cathy Moore's 

2J3, 236 (Pa. Super. 1997). 

one to prevail on n challenge of the weigh! of tho evidence, the verdict must be so contrary lo the 

evidence es to shock one's sense of justice. Id. (citing Commonwealth v. Goodwine, 692 A.:?.d 

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