Com. v. Shaffer, M. ( 2016 )

J-A22020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICKLE JOE SHAFFER
Appellant No. 111 MDA 2016
Appeal from the Judgment of Sentence December 9, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000264-2014
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 28, 2016
Appellant, Mickle Joe Shaffer, appeals from the judgment of sentence
entered after a jury found him guilty of third-degree murder. Shaffer raises
eight separate challenges to the judgment of sentence. After careful review,
we affirm.
On Christmas Eve 2013, Shaffer hosted a small party at his rural
mobile home. One of his guests, Mary Jane Hinton, was selling cocaine to
other attendees through the night. Around 3 a.m. Christmas morning,
Hinton’s supplier, Terry Fulton, arrived at the party, intending to sell more
cocaine to Hinton.
Another attendee, Darius Spoonhour, had previously entered into a
conspiracy with Janoris Hughes to rob Fulton and other attendees. Upon
J-A22020-16
overhearing Hinton contact Fulton, Spoonhour contacted Hughes to alert him
to Fulton’s imminent arrival at the party.
Shortly thereafter, Shaffer opened the door to his back porch and was
greeted by Hughes holding a gun to his face. Hughes informed Shaffer that
“this is a robbery.” Hughes escorted Shaffer back into his home at gun point,
and herded the attendees into a back room, ordering them to strip and hand
over their valuables.
At this point, Fulton physically engaged Hughes and attempted to
wrest the gun away. The struggle moved back into Shaffer’s living room.
Ultimately, Hughes ended up standing over Fulton and shot him three times.
Hughes subsequently fled the residence without his gun.
Fulton left the premises to seek medical attention, but Spoonhour
retrieved Hughes’s gun. Shaffer took the weapon from Spoonhour and made
two discoveries. First, that the gun was empty. Second, that he had
ammunition that would fit the gun. At this point, none of the victims had
made any attempt to contact authorities.
Shaffer reloaded Hughes’s gun and went outside to search for Hughes.
After this first sweep was unsuccessful, he returned to his home. Still no
attempt was made to contact authorities regarding the attempted robbery.
After approximately 30 minutes, Shaffer made a second sweep of his
property.
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J-A22020-16
During this second search, Shaffer found Hughes hiding in Spoonhour’s
car. Hughes exited the car under gunpoint. When Hughes attempted to flee
to a nearby treeline, Shaffer fired one to three shots at him. Hughes was
struck once in the back, suffering a fatal wound.
The Pennsylvania State Police ultimately charged Shaffer with
homicide and several other crimes. A jury then convicted Shaffer of third-
degree murder, and acquitted him on the remaining charges. The trial court
imposed a sentence of imprisonment of 20 to 40 years. Shaffer’s post-
sentence motions were denied, and this timely appeal followed.
On appeal, Shaffer raises eight issues. In his first three issues, he
challenges the trial court’s refusal to instruct the jury on issues such as
citizen’s arrest and the use of deadly force to prevent the escape of a fleeing
felon. After reviewing the briefs of the parties, the record, and the relevant
law, we conclude that the Honorable Carol L. Van Horn’s opinion thoroughly
and completely addresses these issues. See Trial Court Opinion, 4/6/16, at
6-10 (finding that the passage of time between the robbery and the shooting
negated the requirement of fresh pursuit for the requested instructions). We
adopt this reasoning as our own and conclude that Shaffer is due no relief on
his first three issues.
In his fourth and fifth issues, Shaffer argues that the trial court erred
in restricting his cross-examination of Spoonhour. In particular, Shaffer
contends that he was prevented from fully exploring the plea agreement
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J-A22020-16
Spoonhour reached with the Commonwealth in return for his testimony in
this matter. Once again, we conclude that Judge Van Horn’s opinion fully and
adequately addresses the issues raised by Shaffer. See id., at 10-22
(finding that Shaffer was not prevented, in any meaningful sense, from
presenting the content and surrounding circumstances of Spoonhour’s plea
agreement with the Commonwealth). We therefore adopt this reasoning as
our own and conclude that Shaffer’s fourth and fifth arguments merit no
relief.
In his sixth issue, Shaffer contends that the trial court erred in failing
to conclude that he was entitled to a self-defense instruction based solely
upon the evidence presented by the Commonwealth in its case-in-chief.
Judge Van Horn’s opinion once again thoroughly addresses the issue. See
id., at 23-26 (concluding that the testimony in the Commonwealth’s case did
not support a finding that Shaffer shot Hughes pursuant to a reasonable fear
of imminent serious bodily injury). We adopt Judge Van Horn’s reasoning
and conclude that Shaffer is due no relief on his sixth issue.
Next, Shaffer argues that the trial court erred in refusing his request
to present evidence of Hughes’s parole status at the time of the robbery.
Shaffer contends that this information was critical in establishing that
Hughes was the aggressor. Judge Van Horn’s opinion fully and adequately
addresses this issue, and we therefore adopt her reasoning as our own. See
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J-A22020-16
id., at 26-27 (finding that this issue was a collateral matter and that in any
event, Shaffer was not prejudiced by this exclusion).
In his eighth and final issue, Shaffer challenges the discretionary
aspects of the sentence imposed by the trial court. Judge Van Horn
thoroughly reviews the factors she considered and the reasoning she
announced at sentencing that support the sentence imposed. See id., at 27-
31 (noting that she reviewed a pre-sentence report and imposed a standard
range guideline sentence). We adopt this reasoning as our own and conclude
that Judge Van Horn did not abuse her discretion in imposing sentence.
After reviewing the issues on appeal, we affirm the judgment of
sentence on the basis of Judge Van Horn’s well-written opinion.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2016
-5-
Circulated 10/18/2016 02:12 PM
IN THE COURT OF COMMON PLEAS OF THE 39Tu JUDICIAL DISTRICT OF
PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, Criminal Action
vs. No.-264.;2014
Mickle Joe Shaffer, ..
Defendant Honorable Carol L. Van Horn
STATEMENT·OF THE CASE
On November 19, 2015, a jury found the above captioned Defendant, Mickle Joe
Shaffer guilty of third-degree murder.1 The Defendant was sentenced on December 9,
2015, to 20 to 40 years of incarceration in a State Correctional Institution. On December
21, 2015, Defendant filed a timely Post-Sentence Motion to Modify Sentence. This Court
denied the Motion on December 23, 2015, stating that" ... [t]he Court articulated its
reasons for the sentence imposed on the record at the time of sentencing and considered
the factors raised in this Motion at the time of sentencing." Order 12/13/15. Defendant
filed his Notice of Appeal on January 19, 2016, and his Concise Statement of Errors
Complained of on Appeal on February 1, 2016. The Court will now respond to
Defendant's claims of error in this Opinion and Order of Court pursuant to Pa.R.A.P.
1925(a).
BACKGROUND
The incident in question began in the afternoon of Christmas Day 2013, and
continued into the early morning hours of December 26, 2013. On the dates in question,
the Defendant was at his mobile home located at I 069 Mount Sedonia Road, Fayetteville,
Pennsylvania. A number of other individuals were also present at the Defendant's mobile
1
18 Pa. C.S. 2502( c ).
2
home on this night including Darius Spoonhour, Terry Fulton, Daniel Eshelman, Mary
Jane Hinton, Shanice Prowell and Mike Llewellyn. At around4:30 a.m. on December 26,
2013, Janorris Hughes, ultimately the victim in this case, approached the mobile home
with a rifle. Hughes entered the residence and ordered all of the individuals presentto the
back of the home at gun point. Soon after doing so, Hughes was rushed by Terry Fulton.
and a scuffle ensued. Terry Fulton was shot multiple times but was able to gain
possession of the gun. Hughes then fled the residence
Terry Fulton was able to reach his vehicle and drove off in an attempt to seek
medical attention. However, prior to his departure.Darius Spoonhour was given the rifle.
Unbeknownst to the other individuals, Darius Spoonhour was actuaily a co-conspirator in
the botched robbery and had been texting Hughes just moments before he entered the
mobile home. At trial, Spoonhour testified that his cell phone had subsequently died and
he was therefore no longer able to communicate with Hughes. Spoonhour eventually
turned over the weapon to the Defendant who subsequently discovered he had .22 caliber
shells in his home. The Defendant then loaded precisely 8 to 10 bullets into the gun. At
no point during this time period did any of the individuals present notify law
enforcement.
Armed with the gun and a spotlight, the Defendant conducted a sweep of the
perimeter outside his home in search of Hughes. The Defendant was unable to locate
Hughes and reentered his home. Approximately 15 to 30 minutes had elapsed since Terry
Fulton had given the gun to Spoonhour and driven off. Once again, none of the
individuals contacted authorities. Defendant subsequently performed a second search of
the area outside his mobile home and located Hughes hiding near the vehicles on the
3
property. In an attempt to flee, Hughes ran up a small incline away from the Defendant's
property. The Defendant fired a single shot that hit Hughes.in the back and ultimately
killed him.
At trial, Defendant.presented a justification defense, arguing that he shot Hughes
in self-defense. In its case in chief, the Commonwealth called a total of thirteen
witnesses. Notable among them were Darius Spoonhour and Daniel Eschelman. The
Defendant took the stand and testified in his defense. Unconvinced, the jury convicted the
Defendant of third-degree murder.
ISSUES RAISED
Defendant raises the following issues in his Concise Statement:2
I . The Honorable Trial Court abused its discretion and
committed reversible error by refusing to charge the
jury on the issue of citizen's arrest, which was fully
supported by evidence of record, particularly · by
Defendant's own testimony, and which, if accepted by
his jury, would have constituted an absolute defense to
the homicide charge.
2. · The Honorable Trial Court abused its discretion and
committed reversible error by refusing to charge the
jury on the use of deadly force to prevent the escape of
a fleeing felon, which was fully supported by evidence
of record, particularly by Defendant's own testimony,
and which, if accepted by his jury, would have
constituted an absolute defense to the. homicide charge.
3. The Honorable Trial Court abused its discretion and
committed reversible error by refusing to charge the
jury on the use of deadly force to prevent the escape of
an arrested person in custody, which was fully
supported by evidence of record, particularly by
Defendant's own testimony, and which, if accepted by
his jury, would have constituted an absolute defense to
the homicide charge.
2
Concise Statement of Errors Complained of on Appeal, 2/1/16.
4
4. The Honorable Trial Court abused its discretion and
committed reversible error in unreasonably restricting
the · cross-examination of Darius . Spoonhour, . the
prosecution's chief witness, especially. as to the terms
of his deal with the Commonwealth and the fact that he
gave his own gun to a convicted felon, which was
critical to challenging his credibility before Defendant's
jury.
5. The Honorable Trial Court abused its discretion and
committed reversible error in unreasonably restricting
the cross-examination of Darius Spoonour's .attorney,
particularly as to the terms of his client's deal with the
Commonwealth and the details of his representation of
him at Defendant's trial, which was critical to
challenging Spoohour's credibility before the jury.
6. The Honorable Trial Court abused its discretion and
committed reversible error by effectively compelling
Defendant to testify at trial against his own desires
because the Court had ruled wrongly that insufficient
evidence had been adduced in the Commonwealth's
case to warrant a self-defense instruction to the jury,
thereby violating Defendant's state and federal
constitutional right against self-incrimination.
7. The Honorable Trial Court wrongly excluded the
Defense request to have information from the
Pennsylvania Board of Probation and Parole presented
to Defendant's jury to the effect that decedent was on
parole for burglary at the time of the incident, which
was critical evidence for the jury to considering in
weighing Defendant's defense of self claims,
particularly whether decedent was the aggressor and
thereby bolstering Defendant's assertion that he was
reasonably in fear of death or serious bodily injury
when he shot him.
8. Sentencing Defendant to the statutory maximum
sentence of 20 to 40 years' incarceration for Third-
Degree Murder constituted an abuse of discretion, too
harsh a punishment and a manifestly excessive sentence
under all the circumstances attendant to this unique
5
case, and the Sentencing Court failed to consider the
important mitigating factors of record while focusing
exclusively on the severity of the offense in violation of
the Sentencing Code.
DISCUSSION
I. Requested Jury Instructions
In his first three issues, Defendant contends this Court abused its discretion and
committed reversible error when it refused to charge thejury on various instructions he
requested. Because the request for these three instructions are inherently intertwined with
one another, wewill address them together. Initially, Defendant alleges that this Court
committed reversible error by refusing to charge the jury on citizen's arrest. He contends
that this instruction was proper and supported by evidence at trial.iparticularly his own,
and if accepted by the jury would have constituted an absolute defense to the charge of
third-degree murder. Because the Defendant believes he properly executed a citizen's
arrest he argues the jury should have also been instructed on the use of deadly force to
prevent the escape of a fleeing felon. Additionally, Defendant asserts that the Court
should have granted his request to have the jury charged on the use of deadly force to
prevent the escape of an arrested person in custody.
Regarding the Defendant's requests for the Court to charge the jury on these
instructions, the following was placed on the record at the conclusion of trial:
MR. FOSTER: Okay. Your Honor, I want to
note for the record my exceptions to the Court's
failure to charge the requested charges for citizen's
arrest.
THE COURT: Well, your reason should be
6
stated on the record, because we do not have a
record of why you wanted that charge to be added.
MR. FOSTER: I would ask=accept to the Court's failure to
charge the requested charge which we entitled citizen's ·
arrest, use of deadly force to make a lawful arrest. And, I
will just tell you that I believe that the circumstances and
the evidence that were introduced through the
Commonwealth's case and the defendant's case would be
sufficient to give rise to this charge.
The Court: Okay. Does the Commonwealth wish to place
anything on the record?
Commonwealth: The Commonwealth disagrees
with that theory and objects to the charge.
The Court: And, the Court is placing the ruling on the
record now, that I previously advised counsel. l do not find
that circumstances were presented at trial to justify the
giving of this charge, relying on the case provided by the
defendant, Commonwealth versus Chermansky, which I
note is a 1968 case. There's not much law on this subject.
The Court there noted that before the use of deadly force is
justified, the private person must be in fresh pursuit the
felon and also must give notice of his purpose to arrest for
the felony, if the attending circumstances are themselves
insufficient to warn the felon of the intention of the
pursuing party to arrest him. I do not find that the
circumstances meet this requirement.
N.T. 11/19/15 at 86, 91-92. The Defendant then noted on the record his reasons for
disagreeing with the Court by stating:
Mr. Foster: Okay. I believe he did not have to announce his
intention to arrest because I think the circumstances made it
clear that Mr. Hughes was aware of what the circumstances
were that made him feel he was being placed under arrest
and I believe it is still sufficiently fresh pursuit for the jury
to make that determination, as opposed to the Court,
because it was the intuition of the incident and the
defendant found Mr. Hughes still on his property, right
outside of his door after he committed this grievous felony.
7
My next exception is; if they were given the
charge, citizen's arrest, use of deadly force to prevent
escape of fleeingfelon. And again, I just believe that .:
the evidence presented both sides of the case would
warrant that charge.
The Court: Okay. Your exceptions are noted
for the record.
Mr. Foster: And, finally, the failure of
the Court to charge the justification, use of deadly
force to prevent escape arrested person in custody: And
again, I feel the circumstances· warrant that instruction. .
Id. at 92. In opposition to the Defendant's reliance on Commonwealth v. Chermansky,
242 A.2d 237 (Pa. 1968), the Commonwealth cited the United States Supreme Court
decision in Tennessee v. Garner, 471 U.S. 1 (1985), on the record. Id.
It is undisputed that a trial court has wide discretion in fashioning jury
instructions. Commonwealth v. Brown, 911 A.2d 576, 583 (Pa. Super. 2009) citing
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006). Indeed, a trial court is
not required to give every charge that is requested by the parties and its refusal to give a
requested charge does not require reversal unless the Defendant was prejudiced by 'that
refusal. Id. It is equally as clear that jury instructions are warranted for particular crimes
or defenses only when the facts of a case support such an instruction. See Commonwealth
v. Browdie, 671 A.2d 668, 673-74 (1996).
In the instant matter, Defendant suggests that the evidence at trial supported an
instruction for citizen's arrest. This Court disagrees. To effectuate a "citizen's arrest", a
private person must be in fresh pursuit of one who has committed felony. Chermansky,
242 A.2d at 239. According to Chermansky, the case relied on by the Defendant, if an
individual successfully executes a citizen's arrest, he may employ deadly force if the
s·
felon flees and cannot be arrested without killing him. However, the Chermansky Court
was quick to warn "that before the· use of deadly force is justified the private person must
be in fresh pursuitof the felon and also must give notice of his purpose to arrest for the
felony if the attending· circumstances are themselves insufficient to warn the felon of the
intention of the pursuing party to arrest him."Id. at 240.
Despite the. Defendant's contentions to the contrary, the specific facts of the
instant matter plainly do not support that a citizen's arrest instruction was warranted.
Initially, the Defendant must have been "in fresh pursuit" of the felon in order to employ
deadly force. On cross-examination the Defendant admitted that it was at least 15 minutes
from the time Terry Fulton left the residence, possibly almost half an hour, until he
located the victim. N.T. 11/18/15 at 44-45. Furthermore, the Defendant left his residence
to search for the victim on at least two separate occasions. Such facts directly contradict
any notion that the Defendant could be construed as being "in fresh pursuit" of the
victim. Additionally, the Court finds that the fact that the victim was still on the
Defendant's property at the time of the incident is oflittle consequences as to whether
the Defendant was in fresh pursuit. This is especially true in light of the testimony at trial
that strongly suggests the victim was hiding on the Defendant's property in a car
following the botched robbery. Id. at 56. For all of these reasons, the Court finds the
Defendant was not in fresh pursuit of the victim and his use of deadly force was not
justified. Consequently, this Court did not abuse its discretion in refusing to charge the
jury on citizen's arrest.
Assuming arguendo that the Defendant could show that he was in fresh pursuit of
the victim when he employed deadly force, this Court would still find that a jury charge
9
on citizen's arrest was unwarranted. The facts of instant matter illustrate that the
Defendant failed to give any notice that his purpose was to arrest the victim for the
robbery in question. Moreover, the other attending circumstances surrounding the
Defendant's use of deadly force were not sufficient to warn the victim that there was any
intention to arrest him.
On direct, the Defendant testified that on the first sweep of his property he was
going to attempt to effectuate a citizen's arrest on the victim. N.T. 11/17/15 at 192.
However, he was unsuccessful in locating the victim. Yet on cross-examination the
Defendant admitted that when he actually located the victim on the second sweep and
pointed the gun and spotlight at him that he simply commanded-the victim to stop and not
to come any closer. N.T. 11/18/15 at 58. Such statements in the absence of other any
facts are undoubtedly insufficient to establish that the attending circumstances were
themselves sufficient to warn the victim of any intention by the Defendant to arrest him.
As such, Defendant's argument on this issue would also fail for this reason. Because this
Court finds that the facts of this case did not warrant a jury instruction for citizen's arrest
we need not address Defendant's second and third issues.
II. Cross-Examination of Commonwealth's Witnesses
A. Darius Spoonhour
1. Terms of the Plea Deal with Commonwealth
In his fourth issue, Defendant argues that this Court abused its discretion when it
unreasonably restricted the cross-examination of Darius Spoonhour. Specifically, the
Defendant avers that his cross-examination of Spoonhour was unreasonably restricted as
to the terms of the deal Spoonhour entered into with the Commonwealth. Defendant also
10
argues that he was unreasonably restricted in cross-examining Spoonhour on the fact that
"he gave his own gun to a convicted felon." In concluding, Defendant alleges that cross-
examination on these issues was criticalto challenging Spoonhour's credibility,
However, the record clearly contradicts the Defendant's contentions that his
cross-examination of Spoonhour was unreasonably restricted in any manner. Following
the incident in question, Darius Spoonhour was originally charged with second degree
murder;' aggravated assault,4robbery,5 criminal conspiracy to commitrobbery" and
criminal conspiracy to commit assault.7 However, the second degree murder charge was
subsequently withdrawn by the Commonwealth pursuant to Pa.R.Crim.P. Rule 561. The
record indicates that this was likely due to the weakness of the legal theory of this charge
and its relationship to the acts committed by Spoonhour during the incident. Ultimately,
Spoonhour reached a plea agreement with the Commonwealth. On April 8, 2015, he pled
guilty to conspiracy to commit robbery and the agreed upon sentence of 42 to 84 months'
incarceration in a State Correctional Institution was imposed by this Court.
At trial, Spoonhour was called by the Commonwealth to testify. Regarding the
specifics of his plea agreement and agreed upon sentence with the Commonwealth,
Spoonhour testified:
Q. Did you subsequently arrive at a plea agreement
with the District Attorney's office?
A. Yes.
Q. What did you plead guilty to?
3
18 § 2502 §§B.
4
18 § 2702 §§Al.
5
18 § 3701 §§All.
6
18 § 903 §§C.
718
§ 903 §§C.
11
A. Conspiracy of robbery.
Q. Was there an agreed upon sentence?
A. Yes.
Q. Whatis your sentence?
A. Three and a half to seven years.
Q. Or conspiracy to commit robbery?
A. Yes.
Q. Was there, at the time the plea agreement was
entered, any consideration for your future testimony?
A. No.
Q. Had there been any discussion as to your future
testimony?
A. I was just asked if I'd cooperate later on, if I
was asked.
Q. I'm sorry?
A. I was asked if I would cooperate, if I was asked
to.
Q. You were a asked to cooperate, if you were asked
to? Is that-
A. Like, if I was asked to testify, I said I was
willing to.
Q. Okay. But, was there any trade off for that?
A.No.
Q. So, you entered into your sentence without any
requirement that you do anything in return?
A. Correct.
12
(emphasis added). N.T.1 l/16/15 at 191.
Understandably, the Defendant sought to cross-examine Spoonhour regarding the
nature of his plea agreement and his agreed upon sentence with the Commonwealth in
attempt to explore bias and interested. After Spoonhour testified that he was not
concerned about the murder charge because his lawyer had informed him it would very
likely be dropped he stated the following on cross-examination:
Q. Were you=also had four other charges that
carried up to 20 years each; correct?
A. Correct.
Q. And, you got a pretty good deal. Do you agree
with that?
A. My opinion-
Commonwealth: Objection as to the
characterization of a great deal.
COURT: The record reflects what the
agreement was. The objection is sustained.
(emphasis added). Id. at 219-220. The Defendant then indicated that this was the only
"deal" he was offered and he was happy with it. Id. at 220. Next, the Defendant again
acknowledged on the record that he pled guilty to conspiracy to commit robbery and
further testified:
Q. Correct. The prosecution agreed to drop the
other charges ... right?
A. Yes.
Q. The Commonwealth agreed that they would not file
felony murder charges against you; correct?
A. Correct.
13
Q. And, the defendant will cooperate as a witness,
if called to testlfy?'
A. Correct.
Q. From apotentialmandatory life sentence for
murder, plus a maximum of20 years each, on.the other 4
counts, you pled to 3 and a half to 7 years; correct?
A. Due to my criminal record, which Ihad a gravity
score of 0, I didn't believe it would go up to 20 years.
I was looking on the lower end of the scale.
Q. Okay. Arid of course, in cooperating as a
witness, which is the required number 4, that meant
testifying here today against Mickle Shaffer, didn't it?
A. Yes.
Id. at 220-221.
It was at this point that the Defendant repeatedly asked Spoonhour to speculate on
whether he believed he could be paroled after three and a half years. The Commonwealth
objected on the basis of speculation and the objection was sustained. The following
exchange then occurred:
Mr. Foster: You're aware that the prosecution can
recommend or oppose parole; correct?
Commonwealth: Objection.
The Court: Counsel, approach
(Whereupon, the following discussion was
held on the record at sidebar.)
The Court: This is a state correction
14
sentence. That's under the jurisdiction of the State
Board of Probation and Parole. We are not going to get
into any speculation as to when a possible parole date
may be.
Mr. Foster: I'm pointing out-
The Court: The objectionis sustained.
Mr. Foster:: Just for the record, I'm
pointing out that he is aware that the prosecution can
oppose his potential parole, so therefore he has-
The Court: It's on the record. Sustained .. '.
(emphasis added). Id. at 223.
The record in this matter patently rejects the notion that the cross-examination of
Darius Spoonhour was unreasonably restricted in any manner, particularly regarding the
terms of his deal with the Commonwealth. The nature of the Defendant's sentence and
agreement with the Commonwealth was clearly stated multiple times on both direct and
cross. The jury was undoubtedly aware of the terms of the deal. The only aspects of the
deal that this Court appears to have restricted in anyway was Spoonhour speculating
about whether he believed it was a "good deal" and if he thought he could be paroled at
his minimum sentence of three and a half years. Allowing Spoonhour to answer such
questions when they would have been based purely on speculation would have been
improper. Spoonhour' s sentence is under the jurisdiction of the Pennsylvania Board of
Probation and Parole so any answer he provided about when he might be eligible for
parole would have been highly speculative and inappropriate. For all of these reasons,
this Court finds that it did not abuse its discretion as Darius Spoonhour was not
urueasonably restricted during cross-examination regarding the terms of his plea deal
with the Commonwealth
15
2. Gave His Own. Gun to a Convicted Felon
Defendant also contends in his fourth issue that this Court abused its discretion
and· committed reversible error. when it unreasonably restricted the cross-examination of
Darius Spoonhour regarding the fact that he gave .his own gun to a convicted felon which
was critical to challenging his credibility before the Defendant'sjury, Although he fails
to specify, presumably the Defendant is referring to the following exchange during cross-
examination of Spoonhour where he stated:
Q. You knew when you gave a gun to Janorris Hughes,
you knew that he was a convicted felon and he was not
allowed to possess firearms, didn't you?
Commonwealth: Objection.
The Court: Will counsel approach, please.
(Whereupon, the following discussion was
held on the record at sidebar.)
The Court: Okay. Your objection, Attorney
Rahauser?
Commonwealth: There is-- the only way his
record comes in is if there's a claim of self-defense,
which has not been established.
Mr. Foster: It will be established.
Commonwealth: But it's not-
Mr. Foster: Aside from that.
The Court: Well, the danger is how you've-
Mr. Foster: It's relevant.
The Court: You've stated that in front of
the jury by suggesting it in your question and it's not.
16
Mr. Foster: It's relevant also, to this
gentlemen's=what he was facing when he was charged,
because it's relevant to how he would be sentenced.
Mr. Foster: Darius.Spoonhour's actions in
the criminal activity to which he was charged and was
entered into a plea agreement, is relevant to whathis
sentencing was before he entered into the plea
agreement. If he would have not entered into the plea
agreement and he goes before the Judge to be sentenced,
the prosecution would say, Your Honor, he gave this gun
to a convicted felon who was not permitted to handle a
firearm. That is relevant to a sentencing-
The Court: This is a stretch here. The issue is a stretch.
How is the record of the victim relevant at this point in time
in the trial?
Mr. Foster: It's relevant at this point, because if he knew he
was giving the gun to the convicted felon, he--that is an
aggravating factor in his conduct. In the offense.
The Court: Your response?
Commonwealth: I think it's a collateral matter. I think it's
totally irrelevant. I think it's totally irrelevant.
Mr. Foster: If you were arguing at his sentencing-
Commonwealth: But I'm not.
Mr. Foster: I know, because you made a plea deal.
Commonwealth: No, I don't think it would be that either.
The Court: To your relevance, the question can't be asked.
I'm going to tell the jury to disregard the question that was
asked and remind them that questions are not facts of
evidence.
Mr. Foster: I would just site, Rule 401 the
test of relevancy.
17
The Court: It's not relevant at this time. We had discussions
pretrial as to when the record of the victim may come into
play and it was clearly stated that it was only if there was
· going to be a self-defense-> if self-defense would be
asserted.
N.T. 9/16/15 at 205-208. Notably; on the third day of trial, and after a self-defense theory
had been properly established by the Defendant's own testimony, this Court permitted a
stipulation of the victim's criminal record to be read to the jury. 8
Regarding cross-examination, it is well established that a trial court has the
discretion to fashion both its scope and permissible limits. See Commonwealth v. Rivera,
983 A.2d 1211, 1230 (Pa. 2009). A "trial judge's exercise of judgment in setting those
limits will not be reversed in the absence of a clear abuse of that discretion, or an error of
law." Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011) quoting Commonwealth v.
Birch, 616 A.2d 977, 978 (Pa. 1992). In establishing the parameters of cross-examination,
a court must consider whether allowing such testimony "would be likely confuse or
mislead the jury." See General Equipment Mfrs. v. Westfield Ins. Co., 635 A.2d 173
( 1993). Furthermore, as with all evidence, it must be relevant and not unfairly prejudicial.
See Pa.R.E., Rule 403.
In the instant matter, this Court was well within its discretion in sustaining the
Commonwealth's objection regarding the introduction of the victim's criminal record
during cross-examination of Darius Spoonhour. As a self-defense claim had yet to be
established, the Defendant failed to show how the victim's criminal record resulting in
8
Specifically, this stipulation stated:
This is the fact for you to accept. Janorris Hughes was convicted of a
crime of criminal conspiracy to burglary in the Court of Common Pleas
of Franklin County, in docket number 1321 of2012 and was sentenced
on January 16 of 2013. So, that is a fact that you will have to accept.
N.T. 9/18/15 at 76.
18
him being a person not to possess a firearm was relevant during the cross-examination of
Spoonhour. Defendant argues that it was relevant because if Spoonhour knew he was
giving a gun to a convicted felon this would have been an aggravating factor at the time
of sentencing. The Court finds this backdoor attempt to inform the jury of the victim's
criminal record for such a reason to be particularly unconvincing. Furthermore, even if
this line of questioning during cross-examination would have elicited relevant
information, this Court finds that its probative value would have been greatly outweighed
by its potential unfair prejudice. See Pa.RE., Rule 403. Consequently, we find
Defendant's argument on this issue to be meritless.
B. Attorney Stephen Kulla
Similar to his fourth issue, Defendant next asserts that this Court again abused its
discretion and committed reversible error in unreasonably restricting the cross-
examination of Spoonhour's attorney, especially as to the terms of his client's deal with
the Commonwealth and the details of his representation. Defendant asserts this was
critical to challenging Spoonhour's credibility before the jury. As highlighted previously,
a trial court has the discretion to fashion both the scope and permissible limits of cross-
examination. See Rivera, 983 A.2d at 1230.
At trial, the Commonwealth called Attorney Stephen Kulla to testify. Attorney
Kulla was court-appointed to represent Darius Spoonhour after he was charged and
eventually pied guilty on the aforementioned charges. On direct examination, Attorney
Kulla stressed that he believed the felony murder charge was incredibly weak and had
little, if any, chance of succeeding. N.T. 11/17/15 at 6. Additionally, Attorney Kulla
detailed the discussions he had with Spoonhour regarding the other charges and the
19
potential penalties for them. Id. at 6-10. Discussion of these penalties included explaining
to Spoonhour the possible maximum sentence on each charge as well as the guideline
sentences the court could have potentially considered at sentencing. Id. Attorney Kulla
also explained the sentencing matrix to the jury as it related to the charges Spoonhour
originally faced and testified that he also did this with Spoonhour previously. Id. at 13.
Finally, Attorney Kulla detailed the specifics of the plea agreement which Spoonhour
ultimately accepted. This included that the Commonwealth would drop all of the other
charges, including not pursuing a felony murder charge, and that Spoonhour would
cooperate and testify truthfully if called to do so regarding this incident. Id. at 16.
In response, Attorney Kulla was exhaustively cross-examined about the terms of
the plea agreement accepted by Spoonhour and the potential penalties he could have
faced for the crimes he was originally charged with. In fact, the cross-examination of
Attorney Kulla lasted for roughly 28 pages of trial transcript. Id. at 18-46. Attorney Kulla
was asked to detail the possible maximum sentence and the aggravated sentence on each
of the charges Spoonhour faced. Id. at 35-40. Trial Counsel for the Defendant also
explored the possibility that a court could have imposed consecutive sentences for the
original charges if a plea agreement had not been reached and Spoonhour was convicted.
Id. at 40-41. The record in this case clearly illustrates that trial counsel was given wide
latitude in cross-examining Attorney Kulla about the terms of the plea agreement and the
potential sentences the charges brought against Spoonhour could have resulted in. As
such, we find Defendant's contention on this issue to be wholly without merit.
Additionally, Defendant contends that this Court unreasonably restricted the
cross-examination of Attorney Kulla regarding "the details of his representation of
20
Spoonhour at Defendant's trial" which was critical to challenging Spoonhour's credibility
at trial. It appears that the Defendant is referring to the following exchange near the end
of cross-examination of Attorney Kulla:
Q. But, you were hear [sic] in Court yesterday arguing
about my cross examination of Spoonhour?
A. No, I was not.
Commonwealth: Objection ..
The Court : Counsel, approach please.
(Whereupon, the following discussion was held on the
record at sidebar.)
The Court: Mr. Foster, you are getting beyond that. I'm
concerned about being on the verge here of a mistrial. You
trying to bring in other information, okay.
Mr. Foster: That's not even close.
The Court: Of what you are bringing in,
causing difficulties for this trial. Okay. So, you are
not going to explore what Mr. Kulla's role was here
yesterday.
Mr. Foster: He testified on direct that after the deal,
Spoonhour was no longer in jeopardy from these charges
and yet yesterday he came into the Court and said he's
concerned.
Commonwealth: But, that was on sidebar.
Mr. Foster: About this incident, bringing a gun to a known
felon.
Commonwealth: That's speculative to things that have not
been testified, that may or not be proven and are not part of
this case.
The Court: And the point that was just made, that was a
sidebar discussion, not in front of the jury.
Mr. Foster: Because I was examining him on
21
his statement that Mr.--that he not be involved in
anything further, because Spoonhour was no longer-
The Court: But, what's the relevance in-
Mr. Foster: But, it's not true. I'm cross
examining him. His involvement was no longer necessary
because the witness was no longer in jeopardy after-e-
The Court: Y oil are getting out of
collateral matters, not issues relating to this trial.
Mr. Foster: I'm cross examining him.
The Court: I understand. You are challenging the
credibility of Attorney Kulla?
Mr. Foster: Yes.
The Court: That's what you are saying. Okay. But, then we
are not going to be getting into a whole collateral matter.
Mr. Foster: He's a witness called by the
prosecution.
The Court: I understand your position.
I've made my ruling. Please move on.
N.T. 9/17/15 at 43-45. Trial Counsel's attempt to cross-examine Attorney Kulla
regarding a side bar discussion he participated in while Spoonhour was testifying the
previous day was improper as it required the jury to speculate about facts that had not
been properly before it or established in the case. Such information was a collateral
matter and beyond the scope of cross-examination. Consequently, limiting trial counsel's
cross-examination of Attorney Kulla was well within this Court's discretion and the
Defendant's argument is without merit.
22
III. Defendant Testifying
In his sixth issue; Defendant argues that this Court "effectively compelled" him to
testify against his own desires because the Court previously ruled that there was
insufficient evidence presented .in the Commonwealth's case to warrant a self-defense
instruction to the jury. Initially, this Court would note that an extensive· colloquy of the
Defendant was conducted after the Commonwealth rested regarding the Defendant's
decision to testify. The details of this colloquy were stated on the record:
The Court: Mr. Shaffer, we are at the point in the trial
where the Commonwealth has concluded its presentation of
evidence and now it's your decision to decide whether you
wish to present any evidence whatsoever and specifically
whetheryou wish to testify. You've heard me give
instructions to the jurors, that if you chose not to testify,
they cannot hold that against you or make any adverse
inference from the fact that you choose not to testify. If you
do it [sic] testify, they will be told to evaluate the
credibility of your testimony as they would any other
witness, but also be able totake into consideration that you
are the defendant in this case and vital interest in the
outcome of the trial. Now, have you had time to talk with
your attorney about your decision as to whether you wish to
testify or not?
A. Yes, I have.
Q. Do you understand that if you choose to testify, that you
would be subject to cross examination by the ·
Commonwealth?
A. Yes.
Q. And, do you understand that if there is anything in your
past, by way of crimen falsi, types crimes they could be
brought forward in front of the jury; do understand that?
A. Yes, Ma'am.
Q. Okay. Do you have any questions at this time of
your attorney regarding your right to testify?
23
A. No, Ma'am.
Q. Do you have any questions of me regarding your right to
testify?
A. No, Ma'am.
Q. Do you understand that it is your decision to
make and not the decision of your attorney to make as to
whether you testify or not?
A. Absolutely.
Q. And, what is your decision?
A. Since I'm not going to be able to take the self-defense
without giving my testimony, then I have no choice but
to testify.
Q. Well, I want to clarify something for you. I
made a ruling on a request of your attorney to present
evidence of two witnesses that would have to first
satisfy requirements that self-defense was justified at
this point. I've made a legal ruling that it has not.
I believe you are saying that might affect [sic) your
decision, but you understand that if you choose to
testify, then all of the attachments that I just told
you about, including cross examination and information
regarding your past, will come forward as well?
A. Yes.
(emphasis added). N.T. 11/17/15 at 148-150.
The record in this case clearly illustrates that the Defendant was not "effectively
compelled to testify" and instead freely chose to do so knowing its risks and benefits. It
appears that the Defendant would simply have preferred not to testify and yet still receive
a self-defense instruction. Prior to his colloquy, the Defendant argued that he was entitled
to a self-defense instruction based on evidence presented by the Commonwealth, most
notably the testimony of Daniel Eshelman and Darius Spoonhour. See Id. at 136-138. The
24
Defendant is correct that evidence to support a self-defense instruction "may be adduced
by the defendant as part of his case, or, conceivably, may be found hi the
Commonwealth's own case in chief or be elicited through cross-examination." See
Commonwealth v. Rose, 321 A.2d 880, 885 (Pa. 1974). However, such evidence from
whatever source must speak to the three elements for a claim of self-defense to be placed
in issue for the jury's consideration. These three elements are:
a) the slayer was free from fault in provoking or continuing
the difficulty which resulted in the slaying
b) the slayer must have reasonably believed that he was in
imminent danger of death or great bodily harm, and that
there was a necessity to use force in order to save himself
therefrom
c) the slayer did not violate any duty to retreat or to avoid the
danger.
Commonwealth v. Myrick, 360 A.2d 598 (Pa.1976); Commonwealth v. Cropper, 345 A
.2d 645 (Pa.1975).
In the instant matter, this Court found that the Defendant was not entitled to a jury
instruction for self-defense following the Commonwealth's evidence because he failed to
prove the second element. N. T. 11/17/15 at 146-147. Specifically, the Court found that
the testimony of Daniel Eshelman and Darius Spoonhour did not illustrate or provide any
words or actions by the Defendant that would show that the Defendant reasonably
believed that he was imminent danger of death or great bodily harm at the time of the
incident. Id. at 147. Consequently, without such evidence a self-defense instruction was
not warranted. ,
More importantly, a jury instruction for self-defense was given at trial following
the Defendant's testimony. It appears to this Court that by testifying and subsequently
25
receiving the instruction, the Defendant has waived his ability to dispute the
aforementioned legal ruling. Defendant seeks to avoid such an equitable and logical
. .
conclusion by alleging that he was somehow "compelled" by this Court to testify. The
record definitively indicates that was not the case in this matter. As such, this Court finds
Defendant's argument on this issue to be without merit.
IV. Request for Victim'sParole Officer to Testify
Next, Defendant asserts that this Court wrongly excluded his request to have
information from the Pennsylvania Board of Probation and Parole presented to the jury to
show that the victim was on parole at the time of burglary which Defendant asserts was
critical evidence for the jury to consider when weighing Defendant's self-defense claims.
Defendant alleges that this was critical to the jury's determination of whether the victim
was the aggressor and thereby would have bolstered the Defendant's assertion that he
was reasonably in fear of death or serious bodily injury when he shot the victim.
On the second day of trial, the Defendant requested that he be able to offer the
testimony of Michael Riess, the victim's Pennsylvania State Probation and Parole agent.
N.T. 11/17/15 at 134. Defendant stated that Mr. Riess would testify that at the time of the
victim's death he was on parole for a conviction of conspiracy to commit robbery and
was paroled to a halfway house in Chambersburg, Pennsylvania in 2013. Id. Additionally,
Defendant asserted that Mr. Riess would testify that part of the conditions of the victim's
parole were that he was not to possess firearms or engage in criminal activity. The
Defendant sought to offer this as relevant evidence in support of the issue as to who was
the initial aggressor. If the victim knew he was facing parole revocation as a result of the
26
home invasion with a firearm, this would have impacted his state of mind and made it
more likely he was the aggressor in the final encounter argues the Defendant. Id. at 13 5.
The Commonwealth objected to the introduction of this evidence. Id. Although
the Commonwealth conceded that if self-defense was established by the Defendant the
victim's criminal record could be introduced as evidence of who was the initial aggressor,
it argued that the parole status of the victim was irrelevant and a collateral matter and was
therefore, inadmissible. Id. at 136. Notably, the criminal record of the Defendant was
read into the record at trial. N.T. 11/18/15 at 76.
This Court again fails to see how such evidence was relevant and would agree
with the Commonwealth that what was proper in this case was the introduction of the
victim's criminal record as evidence supporting who was the initial aggressor. The
victim's parole status was a collateral matter. Additionally, the Court believes the
Defendant cannot show he was prejudiced on this issue. For these reasons, this Court did
not err when it excluded the Defendant's request to have the victim's Pennsylvania State
Probation and Parole agent testify to the conditions of his parole.
V. Sentencing Discretion
In his final issue, Defendant argues that this Court abused its discretion when it
sentenced him to 20 to 40 years' incarceration for his third-degree murder conviction.
Defendant contends this was "too harsh" a punishment and was excessive under the
circumstances of this case. Finally, Defendant avers that this Court failed to consider
important mitigating factors and instead relied exclusively on the severity of the offense
which was a violation of the sentencing code.
27
At sentencing, the Defendant standard guideline range for his conviction for third-
degree murder was 186 months to 240 months. This Court sentenced the Defendant to 20
to 40 years' incarceration. It is undisputed thatthe sentencing court must consider
Pennsylvania's sentencing guidelines. These guidelines are outlined in 42 Pa. C.S. § 9721
which state in pertinent part:
· (b) General standards.s-In selecting from the alternatives
set forth in subsection (a), the court shall follow the general
principle that the sentence imposed should call for .'
confinement that is consistent with the protection of the
public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of the defendant. The court shall also
consider any guidelines for sentencing and resentencing
adopted by the Pennsylvania Commission on Sentencing
· and taking effect under section 2155 ... In every case in
which the court imposes a sentence for a felony ... the
court shall make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the
reason or reasons for the sentence imposed.
Defendant argues that in imposing the maximum sentence of 20 to 40 years'
incarceration, this Court violated the Sentencing Code because such a sentence is not
consist with the protection of the public or the gravity of the offense as it relates. to the
impact on the life of the victim and the community. Furthermore, Defendant avers that
such a sentence is manifestly inconsistent with his rehabilitative needs.
Defendant's claims are challenges to the discretionary aspects of his sentence.
See Commonwealth v. Boyer, 856 A.2d 149, 151 (Pa. Super. 2004); Commonwealth v.
McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). The trial court is afforded "great
deference as it is the sentencing judge that is in the best position to view the defendant's
character, displays of remorse, defiance, or indifference, and the overall effect and nature
of the crime." Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011). A
28
sentencing court must "follow the general principle that the sentence imposed should call
for confinement that is consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant." Mouzon, 812 A.2d at 620 (citations omitted); 42
Pa.C.S.A. § 9721(b). "The sentencing court, however, must also consider the sentencing
guidelines." Commonwealth v. Hardy, 939 A.2d 974, 980 (Pa. Super. 2007) (citation
omitted). Most importantly, because the Defendant's sentence was within the standard
range, he must demonstrate that the "application of the guidelines [was] clearly
unreasonable" pursuant to 42 Pa.C.S.A. § 9781(c)(2).
In the instant matter the Defendant had a prior record score of 4 and using the
Deadly Weapon-Used Matrix9 his conviction had an offense gravity score of 14 making
the standard guideline range 186 months to 240 months. Defendant also notes that the
mitigated range was 174 months to 240 months. The Court had the opportunity to
diligently and properly review a pre-sentence report prior to sentencing. This Court
explained the reasons behind its sentence on the record, stating:
The Court: It is accurate that the Court must consider four
things in determining what the appropriate sentence would
be. I've outlined what the sentencing guidelines provide.
That's a standard range for this Court to begin its analysis.
. .
I also have to consider matters involving protection of the
public, gravity of the offense, and your rehabilitative needs.
I want to start with the gravity of the offense. There can be
no offense more grave than taking the life of another.
9
204 Pa. Code§ 303. l 7(b).
29
So this is the most serious offense for which someone
stands before a court for purposes of being sentenced.
Go to protection of the public next. The evidence as
presented at trial revealed that you had many opportunities
to change the course of events ofthat evening. I'm aware of
the assault that took place within your home before your
conduct by choice in ending thelife of Mr. Hughes.
I'm aware of the intervening period of time, the lack of
attempt to obtain help from Iaw enforcement; and· your
assertion of justification at the time of trial for the murder
that you committed.
This Court agrees with the jury's verdict finding that your
acts were not justified. So I have considered protection of
the public as being very high in determining what your
minimum sentence should be because you have asserted a
need to act the way that you did, that you were justified.
And I reject that as did the jury.
And then the last factor, your rehabilitative needs, which is
really a puzzle to the Court. It's very difficult to rehabilitate
with no acknowledgment of responsibility. I'm not sure
what will be done for you by way of rehabilitation while in
the state correctional institution system. But I am sure that
that's [sic] where you need to be because of the choices
that you made.
N.T. 12/9/15 at 12-14.
Thus, the record clearly rejects the Defendant's claim that this Court relied
exclusively on the severity of the offense in arriving at the Defendant's sentence. To the
contrary, this Court specified that it considered protection from the public to be an
instrumental factor in determining what the Defendant's minimum sentence should be.
Finally, the Court noted the questions associated with resolving what the Defendant's
rehabilitative needs are in light of his refusal to acknowledge responsibility for his
actions. Review of the applicable record and statutory authority definitively shows that
30
this Court properly applied the guidelines in question when arriving at the Defendant's
sentence which was within the standard range. For all of these reasons, Defendant's final
claim is meritless.
CONCLUSION
In light of the foregoing reasons, the Court did not abuse its discretion by
. . . . ..
imposing a sentence of20 to 40 years' incarceration in a State Correctional Institution.
Furthermore, this Court did not abuse its discretion in refusing to charge the jury on
citizen's arrest, the use of deadly force to prevent the escape of a fleeing felon or an
arrested person in custody. Additionally, the Defendant was not unreasonably restricted
in his ability to cross-examine Darius Spoonhour or his attorney Stephen Kulla. Finally,
the Court did not wrongfully exclude Defendant's request to have the victim's probation
and parole agent testify and the Defendant was not "compelled" to testify in anyway by
this Court. For all the reasons stated herein, this Court respectfully requests that the
Superior Court dismiss the appeal of the Defendant.
31