Com. v. Lyons, G. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GROVER HERMON LYONS :
:
Appellant : No. 1790 WDA 2018
Appeal from the Judgment of Sentence Entered July 24, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001200-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 20, 2019
Grover Hermon Lyons appeals from the judgment of sentence entered
in the Erie County Court of Common Pleas on July 24, 2018, following his
conviction of one count of voluntary manslaughter, two counts of aggravated
assault, one count of possession of a weapon, one count of recklessly
endangering another person (“REAP”), one count of tampering with or
fabricating physical evidence, and one count of flight to avoid apprehension.1
For these offenses, Lyons received an aggregate sentence of 90 to 180 months
of incarceration.2 On appeal, Lyons challenges sufficiency of the evidence,
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1See 18 Pa.C.S.A. § 2503(a)(1); 18 Pa.C.S.A. §§ 2502(a)(1), 2502(a)(4); 18
Pa.C.S.A. § 907(b); 18 Pa.C.S.A. § 2705; 18 Pa.C.S.A. 4910(1); and 18
Pa.C.S.A. § 5126(a), respectively.
2 The one REAP and two aggravated assault charges merged with voluntary
manslaughter. Moreover, the sentences for possession of a weapon and
tampering with or fabricating physical evidence were made concurrent with
the voluntary manslaughter and flight to avoid apprehension offenses.
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weight of the evidence, the discretionary aspects of his sentence, and the
demographic composition of the jury that adjudicated his guilt. In finding none
of his issues to be meritorious, we affirm the judgment of sentence.
In the early morning hours of December 31, 2016, Lyons, supported by
another individual, Darrel Johnson, and the victim engaged in some sort of
physical altercation inside of a bar in Erie, Pennsylvania. That establishment
checked people for weapons upon entrance, and there is no evidence that any
of the combatants brandished any weapons during the altercation.
After the fight, the victim left the building. Sometime later, Lyons and
Johnson left the building from another exit together. However, this quarrel
reignited when Lyons and Johnson walked down the street in the direction of
both Johnson’s vehicle as well as the victim and his vehicle. Eventually, both
Lyons and the victim fired guns at one another.3
In the melee, Johnson was hit by a bullet fired by the same model of
gun as the victim’s gun. After police officers arrived at the scene, the victim
was found dead beside a vehicle with a gunshot wound to the chest.
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3 The record is unclear as to when Lyons acquired the weapon used to kill the
victim. At trial, Johnson did not recall if Lyons had a weapon on him that night.
See N.T., 5/16/18, at 89-90. In contrast, Lyons indicated that it was Johnson’s
weapon that he picked up after Johnson dropped it during the firefight. See
N.T., 5/17/18, at 166. The Commonwealth argued, circumstantially through a
timeline established via a video, that Lyons obtained the weapon from the
vehicle he arrived in, which was being driven by Lyons’s sister and then had
it on his person while walking toward the victim. In any event, it is undisputed
that Lyons fired the shot that killed the victim.
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Immediately following this incident, Lyons traveled to Detroit, Michigan, which
is where he was apprehended.
At trial, Lyons was found guilty of seven offenses and sentenced to 90
to 180 months of incarceration. Lyons filed a timely post-sentence motion,
which was denied by operation of law pursuant to Pa.R.Crim.P. 720(A)(3)(a)
after 120 days elapsed from the motion’s filing date. Lyons then filed a timely
notice of appeal, and both Lyons and the trial court have complied with the
dictates of Pa.R.A.P. 1925.
In his appeal, Lyons presents four issues for our review:
1) Did the Commonwealth present insufficient evidence to sustain
each of Lyons’s convictions and the testimony on the essential
issue of justification (self-defense and defense of others) was
so overwhelming that the findings of guilt were based on mere
conjecture and speculation?
2) Did the trial court commit reversible error when it denied
Lyons’s post-sentence request for relief on weight of the
evidence grounds?
3) Did the trial court commit reversible error in that the sentence
imposed was manifestly extreme and clearly unreasonable and
not individualized as required by law?
4) Did the fact that the age of the jury panel during the voir dire
process consisted of individual who were so much older than
Lyons constitute a violation of Lyons’ right to a jury trial?
See Appellant’s Brief, at 2.
Lyons’s first argument is based on his belief that he shot the victim in
justifiable self-defense or in defense of others. Therefore, according to Lyons,
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the evidence proffered by the Commonwealth at trial was insufficient to
sustain each of his convictions. See id., at 6.
In reviewing a challenge to the sufficiency of the evidence, we:
must view the evidence and all reasonable inferences to be drawn
from the evidence in the light most favorable to the
Commonwealth as verdict winner, and we must determine if the
evidence, thus viewed, is sufficient to prove guilt beyond a
reasonable doubt. This Court may not substitute its judgment for
that of the factfinder. If the record contains support for the
verdict, it may not be disturbed. Moreover, a jury may believe all,
some or none of a party's testimony.
Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2000) (citations
omitted). “The evidence established at trial need not preclude every possibility
of innocence[.]” Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super.
2012). “Any doubts regarding a defendant’s guilt may be resolved by the fact-
finder unless the evidence is so weak and inconclusive that as a matter of law
no probability of fact may be drawn from the combined circumstances.”
Commonwealth v. Vargas, 108 A.3d 858, 867 (Pa. Super. 2014) (en banc).
Moreover, it is not within our purview to reweigh the evidence or substitute
our own judgment for that of the factfinder. See Commonwealth v. Koch,
39 A.3d 996, 1001 (Pa. Super. 2011). Further, to find one guilty of a crime,
the evidence may be entirely circumstantial so long as such evidence connects
that individual to the crime beyond a reasonable doubt. See id.
As our Supreme Court has explained:
To prevail on a justification defense, there must be evidence that
the defendant (a) ... reasonably believed that he was in imminent
danger of death or serious bodily injury and that it was necessary
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to use deadly force against the victim to prevent such harm; (b)
that the defendant was free from fault in provoking the difficulty
which culminated in the slaying; and (c) that the [defendant] did
not violate any duty to retreat.
Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (citations
and internal quotation marks omitted). “A defendant's subjective state of mind
does not establish the objective factor of the reasonableness of his belief.” Id.
at 1125. Further, it is for the trier of fact to determine whether an individual’s
belief was reasonable, whether he was free of provocation, and whether he
had no duty to retreat. See Commonwealth v. McClendon, 874 A.2d 1223,
1229-30 (Pa. Super. 2005).
When an individual claims self-defense or defense of others, both of
which are subsumed under the justification defense, the Commonwealth has
the burden to prove beyond a reasonable doubt that the killing was not
committed in self-defense or in defense of others.
In order to disprove self-defense [or defense of others], the
Commonwealth must prove beyond a reasonable doubt one of the
following elements: (1) that the defendant did not reasonably
believe it was necessary to kill in order to protect himself [or
others] against death or serious bodily harm, or that the
defendant used more force than was necessary to save himself
[or others] from death, great bodily harm, or the commission of a
felony; (2) that the defendant provoked the use of force; or (3)
that the defendant had a duty to retreat and that retreat was
possible with complete safety. See 18 Pa.C.S.A. § 505(b)(2). If
the Commonwealth establishes any one of these three elements
beyond a reasonable doubt, then the conviction is insulated from
a defense challenge to the sufficiency of the evidence where self-
protection [or protection of others] is at issue.
Burns, 765 A.2d at 1149 (some citations omitted).
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Lyons maintains that even viewing the evidence and all reasonable
inferences drawn therefrom in a favorable light to the Commonwealth as the
verdict winner, such evidence is “equally consistent with [Lyons’s] innocence
as it is with guilt.” Appellant’s Brief, at 7. Lyons presents a series of assertions,
which he frames as uncontradicted, in his attempt to demonstrate the validity
of his justification defense:
1) The victim instigated the fight via a physical altercation inside
of the bar;
2) Lyons, having arrived earlier and also having left later than the
victim, had no way of knowing where the victim would be after
leaving the bar;
3) The victim, upon leaving the bar, ran to his vehicle to obtain a
firearm;
4) Lyons left the bar and walked normally toward Johnson’s
vehicle;
5) The initial shot came from the victim, where the intended
target was likely Johnson given some dispute between Johnson
and the victim over a girlfriend;
6) A bullet fired by the victim hit Johnson;
7) Lyons attempted to retreat as best he could.
See Appellant’s Brief, at 9-12.
Although the record is replete with conflicting and unclear testimony,
we assume without actually deciding that the first six of Lyons’s assertions are
true. However, based on the testimony elucidated at trial, Lyons’s contention
that he attempted to retreat as best as he could is directly refuted by
Johnson’s testimony:
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[The bar] ended up letting [the victim] out. Prior to letting
[the victim] out, like five to seven minutes later, they ended up
letting [Lyons and me] out on Buffalo Road. And as [Lyons and I
were] walking up the street[], we see - - we didn’t know exactly
where [the victim] had parked or anything. You know, I was just
walking to my car. And we see [the victim], he’s in the car. . . .
[H]e’s scrambling around for [his gun], we just kept walking, you
hear what I’m saying[?]
So when he turned, he had the gun. And I grabbed [Lyons]
by his arm, like, whoa, he [has] a gun. So he was still on the other
side [of the street]. So I’m like, we can just walk up the street,
you know what I’m saying, and get to our car. As we were walking
up, that’s when [the victim], he turned around[,] and he fired at
us. So I grabbed [Lyons] and we ducked.
N.T., 5/16/18, at 34 (emphasis added). Accordingly, the jury could have found
beyond a reasonable doubt that Lyons violated his duty to retreat, which would
therefore eliminate Lyons’s self-defense or defense of others claim. See 18
Pa.C.S.A. § 505(b)(2).
Based on this testimony, the jury could have concluded that, after
seeing the victim brandish a weapon, the reasonable course of action for Lyons
and Johnson was to turn around and walk back toward the bar in order to find
safety. Other evidence supported this inference circumstantially: 1) Lyons and
Johnson were aware of the prior hostility between them and the victim, as it
had only happened a few minutes prior, therefore establishing a higher
likelihood that some sort of weaponized confrontation would occur; and 2) the
vehicle Lyons came in, the vehicle his sister was driving, still remained in the
parking lot of the bar, and the sister remained in or around the bar prior to
and during the gunfire, see N.T., 5/17/18, at 134, 143-44, 148-49 (indicating
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that Lyons arrived in his sister’s vehicle, could not find his sister once he left
the bar, and eventually found his sister after the firefight, using her vehicle to
leave the scene). Instead of turning around, Lyons and Johnson continued
towards the victim, cognizant of the victim’s weapon and accordingly placed
themselves directly in danger.
As the only element Lyons is claiming to be insufficient was the
Commonwealth’s burden to demonstrate beyond a reasonable doubt that
Lyons was not justified in his shooting of the victim, we find that his
insufficiency argument does not warrant any relief. To reiterate, we may not
reweigh the evidence or substitute our judgment for that of the factfinder even
if we would have come to a different conclusion. However, Johnson’s
testimony, which the factfinder was free to believe or disbelieve, augmented
by other circumstantial evidence highlighted above, supports a finding that
Lyons breached his duty to retreat beyond a reasonable doubt.
Lyons’s second argument is a claim the trial court abused its discretion
when it failed to grant him a new trial based on his challenge to the weight of
the evidence at trial. He suggests that it was against the weight of the
evidence for the jury to not find his justification defense valid.
A true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but contends that the verdict
was against the weight of the evidence. An appellate court may
review the trial court's decision to determine whether there was
an abuse of discretion, but it may not substitute its judgment for
that of the lower court. Credibility issues are decided by the jury
and appellate courts rarely overturn jury factual findings that are
based on credibility determinations. Indeed, an appellate court
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should not entertain challenges to the weight of the evidence since
our examination is confined to the “cold record.” Our Court may
not reverse a verdict unless it is so contrary to the evidence as to
shock one's sense of justice. Thus, we are confined to review if
the trial court abused its discretion.
Burns, 765 A.2d at 1149-50 (citations and some quotation marks omitted).
Moreover, when evaluating a trial court's ruling, we keep in mind
that an abuse of discretion is not merely an error in judgment.
Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law. By contrast, a
proper exercise of discretion conforms to the law and is based on
the facts of record.
Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (citation
omitted).
Here, Lyons merely quotes our standard of review for a weight of the
evidence challenge and then summarily and erroneously concludes that “the
Commonwealth’s case was clearly insufficient.” Appellant’s Brief, at 15
(emphasis added). Essentially, Lyons, as a second bite at the apple, is
challenging that the evidence was insufficient for the Commonwealth to have
demonstrated the invalidity of Lyons’s justification defense beyond a
reasonable doubt. Therefore, given the lack of legal authority to support his
weight of the evidence contention and dearth of any kind of factual or
argumentative development of this issue, we conclude he has waived his
weight of the evidence challenge. See Commonwealth v. Williams, 959
A.2d 1252, 1258 (Pa. Super. 2008); see also Commonwealth v. Birdseye,
637 A.2d 1036, 1039-40 (Pa. Super. 1994) (“Because [appellants] failed to
distinguish between their sufficiency and weight of the evidence claims and
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presented no argument regarding the weight of the evidence, we deem their
weight of the evidence issue waived.”); Pa.R.A.P. 2119(a) (identifying that an
argument must be “followed by such discussion and citation of authorities as
are deemed pertinent”).
Additionally, Appellant’s Pa.R.A.P. 1925(b) statement does not include
a challenge to the weight of the evidence. See Defendant’s Statement of
Matters Complained of on Appeal as per Rule 1925(b); see also Pa.R.A.P.
1925(b)(3)(iv) (“[A]ny issue not properly included in the Statement timely
filed and served pursuant to subdivision (b) shall be deemed waived.).
However, even if we were not to find this issue waived, there is simply no
basis to conclude that the verdict here, predicated on multiple sources and an
evidentiary record that establishes the elements of Lyons’s crimes, shocks
one’s sense of justice or is somehow the byproduct of bias, partiality,
prejudice, ill-will, manifest unreasonableness, or a misapplication of the law.
Accordingly, Lyons’s second issue is due no relief.
Next, Lyons suggests that his sentence was manifestly excessive, clearly
unreasonable, and not individualized. See Appellant’s Brief, at 15. “A
challenge to the discretionary aspects of sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super.
2012) (en banc) (citation omitted). Thus, before we may consider the merits
of Lyons’s sentencing issue, he “must invoke this Court's jurisdiction by
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satisfying a four-part test.” Commonwealth v. Moury, 992 A.2d 162, 170
(Pa. Super. 2010). The test is:
the appellant preserved the issue either by raising it at the time
of sentencing or in a post[-]sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted).
“A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citation
and internal quotation marks omitted). “Only if the appeal satisfies these
requirements may we proceed to decide the substantive merits of Appellant's
claim.” Commonwealth v. Luketic, 162 A.3d 1149, 1159-60 (Pa. Super.
2017) (citation omitted).
Here, Lyons filed both a post-sentence motion challenging the
discretionary aspects of his sentence and, thereafter, a timely appeal with this
Court. In addition, Lyons has included a 2119(f) statement in his brief. See
Appellant’s Brief, at 3-4. Therefore, we proceed to our analysis of whether he
has raised a substantial question for our review.
The existence of a substantial question must be determined on a case-
by-case basis. See Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545
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(Pa. Super. 1995). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge's actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)
(citations and internal quotation marks omitted).
In his 2119(f) statement, Lyons asserts that “his sentence was
manifestly excessive and clearly unreasonable because it was not
individualized to meet his needs[,] and he was not given proper credit for time
served prior to sentencing.” Appellant’s Brief, at 4. “A claim that a sentencing
court … sentenced a defendant without taking into account his or her character
and background therefore raises a substantial question that the sentence is
inappropriate under the Sentencing Code.” Luketic, 162 A.3d at 1162.
Therefore, Lyons’s argument raises a substantial question, which we will now
review on the merits.4
“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super.
2012) (citation omitted). “In order to establish that the sentencing court
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4 After mentioning it in his 2119(f) statement, Lyons does not make any
further reference to the argument that he was not given proper credit for time
served prior to sentencing. Therefore, we consider that assertion waived.
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abused its discretion, [the defendant] must establish, by reference to the
record, that the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.” Commonwealth v. Williams, 69 A.3d
735, 741 (Pa. Super. 2013) (internal quotation marks and citation omitted).
“The rationale behind such broad discretion and the concomitantly deferential
standard of appellate review is that the sentencing court is in the best position
to determine the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it.” Id., at 740 (internal
quotation marks and citation omitted). To determine whether the trial court
made the proper considerations during sentencing, “an appellate court must,
of necessity, review all of the judge's comments.” Commonwealth v.
Bethea, 379 A.2d 102, 106 (Pa. 1977); see also Commonwealth v.
Ritchey, 779 A.2d 1183, 1187 (Pa. Super. 2001) (“As this Court has stated,
the judge's statement must clearly show that he has given individualized
consideration to the character of the defendant.”) (quotation marks and
citation omitted).
Lyons concedes that he was sentenced, as to all of his offenses, within
the standard range of the sentencing guidelines. See Appellant’s Brief, at 16.
However, Lyons also suggests that the sentencing court should have
considered several mitigating factors: 1) Lyons’s remorse for his actions; 2)
the victim was the individual who shot first; 3) Lyons’s juvenile conviction
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from over ten years ago skewed his sentencing; and 4) Lyons has never faced
analogous criminal charges in his past. See id., at 16-17.
“When imposing a sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,
the court should refer to the defendant's prior criminal record, his age,
personal characteristics and his potential for rehabilitation.” Id. Where the
sentencing court had the benefit of a presentence investigation report (“PSI”),
we can assume the sentencing court “was aware of relevant information
regarding the defendant's character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988).
Here, the sentencing court, on the record, stated that it had
considered the statements of defense counsel, the defendant, the
attorney for the Commonwealth, the other people who gave
statements, as well as the several letters received on behalf of the
defendant and his letter himself. The court has considered the
defendant’s age, background, and criminal record, character, and
rehabilitative needs, the nature and circumstances and
seriousness of the offense, and the protection of the community,
as well as the sentencing guidelines in the [PSI], and obviously,
the impact upon the victim and his family.
Sentencing Transcript, 7/24/18, at 18-19. The court further noted:
This was a serious crime. The streets of Erie are not the wild west.
Disputes like this can not be settled by gunfire, and that’s what
happened here. Mr. Lyons chose to settle this with a gun, and so
he must be sentenced accordingly.
Id., at 19.
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In accordance with the sentencing court’s statements, we cannot say
that the court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision. The sentencing court clearly referenced its review of
the PSI and considered all facets necessary for a sentencing determination
including, most importantly, the individualized attributes associated with
Lyons, himself. Therefore, Lyons’s challenge to the discretionary aspects of
his sentence is without merit.
Finally, Lyons contests the composition of the jury panel during the voir
dire process, as it was, according to him, older and not racially proportionate
to the general population of Erie County. Lyons does not allege that the
Commonwealth was discriminatory in any way through use of a preemptory
challenge, but instead suggests that the administratively-selected jury pool
somehow violated his Sixth Amendment right to an impartial jury. See Taylor
v. Louisiana, 419 U.S. 522, 528 (1975) (“The selection of a [trial] jury from
a representative cross section to the community is an essential component of
the Sixth Amendment right to a jury trial.”). As to the racial composition
question, Lyons seems to suggest that instead of there having been only one
African American that went through the jury selection process, there should
have been at least three, given the demographic make-up of Erie County. See
Appellant’s Brief, at 19-20.
The United States Supreme Court has held that
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in order to establish a prima facie violation of [the fair-cross-
section] requirement [espoused in Taylor, a defendant] must
show (1) that the group alleged to be excluded is a “distinctive”
group in the community; (2) that the representation of this group
in venires from which juries are selected is not fair and reasonable
in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to the systematic
exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
Other than a cursory citation to the demographic composition of Erie
County vis-à-vis the purported pool of potential jurors in this case, Lyons has
failed to establish at least two of the three prongs enumerated in Duren. More
specifically, while Lyons has facially attacked the racial composition of the
potential jury pool through the use of statistics, he does not even so much as
suggest that the selection process, itself, was somehow unfair or that there
has been some sort of systematic exclusion of African Americans in the jury-
selection process. Instead, Lyons employs a post-hoc analysis of the
composition specific to his jury pool and tersely concludes that there should
have been at least two more African Americans selected into the pool. Because
he has failed to meet at least two of the three Duren prongs, his argument
fails.
As to Lyons’s argument related to age-based concerns associated with
the jury pool, other than a seemingly speculative assertion that “a very large
percentage of the jury panel at the top of the list were in excess of 60 or 50
years of age,” Appellant’s Brief, at 18, he does not corroborate this statement
with any kind of evidence nor does he cite to any authority indicating that the
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jury pool was somehow unconstitutional. As he merely proclaims, without
more, that the jury pool featured potential jurors that were several decades
older than him, we are not at liberty to develop his argument any further. See
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (noting that
this Court will not act as an advocate and develop arguments for an
appellant); see also Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super.
2006) (“Arguments which are not appropriately developed are waived.
Arguments not appropriately developed include those where the party has
failed to cite any authority in support of a contention.”). Therefore, we find his
age-based challenge to the jury pool to be waived. However, even if we
applied the dictates of Duren to an age-related challenge, Lyons has still failed
to meet at least two of its prongs, given his complete lack of analysis on the
issue.
Accordingly, as we find none of Lyons’s issues to be meritorious, we
affirm his judgment of sentence.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2019
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