Com. v. Markijohn, J. ( 2020 )

J-S58041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH ANTHONY MARKIJOHN, II :
:
Appellant : No. 827 WDA 2019
Appeal from the Judgment of Sentence Entered December 5, 2018
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000445-2015
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 22, 2020
Appellant, Joseph Anthony Markijohn, II, appeals from the Judgment of
Sentence of life imprisonment, entered December 5, 2018, following a jury
trial resulting in his conviction of First-Degree Murder and Robbery.1 We
affirm.
Except as noted, we derive the following background from the trial
court’s Opinions, which find substantial support in the certified record. See
Trial Ct. Op., 8/6/19, at 3-12; Trial Ct. Op., 5/24/19, at 3-13.
On December 28, 2014, Kaitlyn Kerezsi and Appellant, her boyfriend at
the time, had planned to visit his friend, Joseph Pagley (the “Decedent”), in
New Castle. The Decedent supplied Appellant with marijuana. However, when
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1 18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), respectively.
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Ms. Kerezsi woke that morning, Appellant informed her that only he would be
traveling to New Castle.2 He packed a bag with a change of clothes and left
in his green Jeep Cherokee around 1 p.m.
Between 5:30 and 6 p.m., wearing a new sweatshirt, Appellant returned
from New Castle with five pounds of marijuana and a large amount of cash.
The pair went to a local Walmart, purchased a safe and glass jars, returned
home, and proceeded to repackage the marijuana. Appellant began selling
this marijuana to friends the following day.
This was more marijuana than Ms. Kerezsi had seen previously in
Appellant’s possession. When asked about the large quantity, Appellant
suggested to Ms. Kerezsi that he and the Decedent had robbed a rival
marijuana growing operation. According to Appellant, he had used a small
pistol to shoot a lock on the shed containing the marijuana. Appellant told
Ms. Kerezsi that he disposed of the gun and that she should deny he had
possessed one.
Earlier that day, the Decedent informed his girlfriend, Shayna Magno,
that he had plans to meet someone from out of town at his house and that,
therefore, she had to leave. Ms. Magno left, met a friend, and began using
heroin. Apparently, the Decedent concluded that Ms. Magno was using heroin,
which precipitated an argument between the two via text messaging and
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2 Appellant lived in Ashtabula, Ohio at the time.
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cellphone calls. However, at 3:32 p.m., the Decedent’s phone was turned off,
and Ms. Magno had no further contact with him.
Sometime between 3:00 and 4:00 p.m., Appellant met the Decedent at
the Roupp residence.3 Surveillance video later recovered from a local business
showed Appellant’s Jeep Cherokee following the Decedent’s vehicle in the
direction of the Decedent’s house at 3:44 p.m.
Over the next several hours, Ms. Magno tried repeatedly but
unsuccessfully to contact the Decedent. Eventually, at 10:40 p.m., Ms. Magno
was able to reach a mutual friend, David Roupp. She inquired as to the
Decedent’s whereabouts, but Mr. Roupp had not seen or heard from him.
Ms. Magno returned to the Decedent’s house. His vehicle was parked
outside; the front door was unlocked; however, the home was unlit, and he
did not appear to be there. Unnerved by this, Ms. Magno again called Mr.
Roupp, who came to the house. Upon searching the basement, Mr. Roupp
discovered the Decedent’s dead body.
An investigation ensued. Police recovered three .25 caliber shell casings
in the basement surrounding the Decedent’s body. In addition, an autopsy
determined that the cause of his death was three gunshot wounds to the head,
and the manner of death was homicide. N.T. Trial, 10/22/18, at 109. Each
of the three .25 caliber slugs recovered from his head had been fired from the
same weapon. Id. at 139-40.
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3Apparently, Mr. Keith Roupp coordinated this meeting. His brother, David
Roupp, was not present. See N.T. Trial, 10/24/18, at 20.
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Although he would later deny it, Appellant possessed a .25 caliber pistol.
Appellant’s mother gave him such a pistol for protection sometime in 2014.
N.T. Trial, 10/24/18, at 113-16. Ms. Kerezsi observed a small pistol hidden
underneath Appellant’s mattress.4 In addition, Mr. Roupp had witnessed
Appellant threaten another friend with a small, black pistol during an
argument. N.T. Trial, 10/24/18, at 34-37. Finally, Appellant had posted
pictures of a .25 caliber pistol on social media. N.T. Trial, 10/23/18, 83-85.
Following his arrest, Appellant directed Ms. Kerezsi to shut down his social
media accounts, and she complied. N.T. Trial, 10/25/18, at 24-25.
On December 30, 2014, Terrance Albright, a random passer-by, found
an iPhone under a guardrail close to the Smolen-Gulf Bridge in Ashtabula,
Ohio, where Appellant resided. Guessing the manufacturer’s default password
and unlocking the phone, Mr. Albright learned that it belonged to the
Decedent. He contacted the Decedent’s father, who in turn contacted the
police. The bridge is approximately 3.5 miles from Appellant’s home and 85
miles from the Decedent’s house.
On December 31, 2014, executing a search warrant on Appellant’s
home, police discovered and seized several pounds of marijuana. The
marijuana was stored in jars labelled “Blue Dream” and “Fu Dawg.” Text
messages exchanged between Appellant and the Decedent, prior to their
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4Ms. Kerezsi was unable to identify the exact type of pistol she had observed,
merely describing it as “small and black.” N.T. Trial, 10/25/18, at 18.
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meeting, referenced these particular brands. Further, notwithstanding his
story of the rival robbery, Appellant acknowledged that he had been present
in the Decedent’s house as late as 4 p.m. on the date of the murder and that
the marijuana seized from his home had come from the Decedent’s house.5
Police arrested Appellant and charged him with murder and robbery.6 A
jury trial commenced in October 2018, resulting in his convictions for the
crimes charged. The trial court imposed sentence in December 2018.
Appellant timely filed Post-Sentence Motions challenging the sufficiency
and weight of the evidence, which the trial court denied. Trial Ct. Order,
5/24/19. Appellant timely appealed and filed a court-ordered Pa.R.A.P.
1925(b) Statement in which he solely preserved a challenge to the sufficiency
of the evidence. Appellant’s Pa.R.A.P. 1925(b) Statement, 6/4/19, at 1. The
trial court issued a responsive Opinion.
In this appeal, Appellant purports to challenge the sufficiency of the
Commonwealth’s evidence. See Appellant’s Br. at iv, v, 4. However, after
reviewing his Pa.R.A.P. 1925(b) Statement and appellate Brief, we conclude
that Appellant has waived this issue on appeal.
In order to preserve a challenge to the sufficiency of the evidence
on appeal, an appellant's Rule 1925(b) statement must state with
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5 Further, on top of the safe found open in the Decedent’s basement, police
discovered a check signed by Appellant and made out for $8,200.00.
6 Initially, police also charged Appellant with Theft by Unlawful Taking and
Receiving Stolen Property; the Commonwealth subsequently withdrew those
charges. 18 Pa.C.S. §§ 3921(a), 3925(a), respectively. In addition, Appellant
faced marijuana-related charges in Ashtabula, Ohio.
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specificity the element or elements upon which the appellant
alleges that the evidence was insufficient. Such specificity is of
particular importance in cases where, as here, the appellant was
convicted of multiple crimes each of which contains numerous
elements that the Commonwealth must prove beyond a
reasonable doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (citations
and quotation marks omitted).
In his Pa.R.A.P. 1925(b) Statement, Appellant fails to identify whether
he is challenging his conviction for First-Degree Murder or Robbery. Further,
he fails to identify a single element of those crimes, nor does he assert which
of those elements the Commonwealth failed to establish. See Appellant’s
Pa.R.A.P. 1925(b) Statement at 1-2 (unpaginated). Thus, we find Appellant’s
sufficiency claim waived. Garland, supra, at 344.
Appellant compounds his error with the Brief submitted to this Court.
Appellate briefs “must materially conform to the requirements of the
Pennsylvania Rules of Appellate Procedure”, and this Court may dismiss or
quash an appeal if the defect in the brief is substantial. Commonwealth v.
Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005). An appellant’s argument
section must discuss the issue actually preserved and include “citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Where an appellant
fails to develop properly a meaningful argument, we may deem the issue
waived. See Commonwealth v. B.D.G., 959 A.2d 362, 371–72 (Pa. Super.
2008) (“When an appellant fails to develop his issue in an argument and fails
to cite any legal authority, the issue is waived.”).
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Despite twenty pages of argument, Appellant fails to identify which of
his convictions he seeks to challenge, fails to identify the elements of either
Murder or Robbery, and again fails to assert which, if any, of those elements
the Commonwealth failed to establish. See Appellant’s Br. at 2-21. Moreover,
the entirety of his “Legal Analysis” section consists of mere boilerplate
language reciting our relevant standard of review and a rather oblique
reference to circumstantial evidence. Id. at 19-21. Appellant fails to address
the sufficiency of the Commonwealth’s evidence in any meaningful way. Thus,
for this reason too, we deem Appellant’s claim waived. B.D.G., supra, at
371–72.7
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7 Notwithstanding Appellant’s waiver, we briefly note the following. We review
the sufficiency of the evidence “to determine whether the evidence presented
at trial and all reasonable inferences derived therefrom, viewed in the light
most favorable to the Commonwealth as verdict winner, are sufficient to
satisfy all elements of the offense beyond a reasonable doubt.”
Commonwealth v. Spell, 28 A.3d 1274, 1278 (Pa. 2011) (citation and
quotation marks omitted).
To establish First-Degree Murder, for example, “the Commonwealth must
establish a human being was unlawfully killed, the defendant was responsible
for the killing, and the defendant acted with malice and a specific intent to
kill.” Commonwealth v. Perez, 93 A.3d 829, 841 (Pa. 2014) (citations
omitted); see 18 Pa.C.S. § 2502(a). The Commonwealth may rely on
circumstantial evidence to prove “any or every element of the crime.” Id.
(citation omitted). “[T]he fact-finder may infer that the defendant had the
specific intent to kill the victim based one the defendant’s use of a deadly
weapon upon a vital part of the victim’s body.” Spell, 28 A.3d at 1278
(citation and quotation marks omitted).
In this case, the Commonwealth provided sufficient evidence to establish each
element of First-Degree Murder. The Decedent died from three .25 caliber
gunshot wounds to the head, a vital part of the body; direct and circumstantial
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It is apparent from the numerous subparts to the question Appellant
presented to this Court, as well as the summary of Appellant’s arguments,
that he conflates his sufficiency claim with a challenge to the weight of the
Commonwealth’s evidence. See Appellant’s Br. at v-vi (asserting numerous
deficiencies in the credibility or persuasive value of the evidence), 1
(“[Appellant] challenges the weight and sufficiency of the evidence[.]”)
(emphasis added). These are distinct claims that require different standards
of review and, when meritorious, afford the appellant different reliefs. See
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000). As with his
challenge to the sufficiency of the evidence, Appellant utterly fails to provide
a legal analysis pertinent to a weight claim. See Appellant’s Br. at 2-21. Thus,
we deem any challenge to the weight of the evidence waived. B.D.G., supra,
at 371–72.8
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evidence established that Appellant possessed a .25 caliber pistol and placed
Appellant at the scene prior to the homicide. This evidence was sufficient to
permit the jury to infer that Appellant unlawfully killed the Decedent and that
Appellant acted with malice and a specific intent to kill. Perez; Spell.
We note further that Appellant effectively concedes the evidence was
sufficient. See Appellant’s Br. at 2 (“Circumstantially, it would appear to be
enough to convict [Appellant], and, in fact, the Commonwealth convinced the
jury to do so[.]”).
8 In light of his waiver, we decline to address Appellant’s arguments in detail.
We note, however, Appellant alleges ten specific deficiencies targeting the
weight of the evidence. See Appellant’s Br. at v-vi (specifically, subparts “a”
through “i” and “k”), 2-21. These arguments are without merit. For example,
Appellant asserts the Commonwealth’s evidence was deficient because it failed
to establish with specificity the Decedent’s time of death. See Appellant’s Br.
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Finally, in two subparts to his question presented, Appellant asserts
certain deficiencies in trial counsel’s representation. See Appellant’s Br. at vi,
16-18. According to Appellant, trial counsel did not effectively challenge the
Commonwealth’s evidence at trial and failed to secure competent expert
testimony. See id.
“[C]laims of ineffectiveness of counsel must be raised on collateral
review, not on direct appeal.” Commonwealth v. Stollar, 84 A.3d 635, 651
(Pa. 2014) (citing Commownealth v. Grant, 813 A.2d 726, 738 (Pa. 2002).
Therefore, we dismiss Appellant’s ineffectiveness claims raised herein, without
prejudice to his right to pursue relief under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–46. Id.
Appellant’s claims on appeal are waived or otherwise without merit.
Accordingly, we affirm Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed.
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at 4-7. However, the Commonwealth need not prove a victim’s time of death.
See Commonwealth v. Haag, 562 A.2d 289, 297 (Pa. 1989). In this case,
the Commonwealth established that Appellant was present in the Decedent’s
house at approximately 4 p.m. on the day of the murder; his body was
discovered later that evening.
In any event, we discern no abuse of the trial court’s discretion in denying
Appellant’s challenge to the weight of the evidence, nor does the jury’s verdict
shock our sense of justice. See Commonwealth v. Fortson, 165 A.3d 10,
16 (Pa. Super. 2017).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2020
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