Com. v. Lewis, J. ( 2017 )

J-A23033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JIBRELL I. LEWIS :
:
Appellant : No. 3575 EDA 2015
Appeal from the Judgment of Sentence July 8, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005100-2013,
CP-51-CR-0005101-2013, CP-51-CR-0005102-2013
BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD*, J.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 08, 2017
Appellant, Jibrell I. Lewis, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his jury
trial convictions of first-degree murder,1 aggravated assault,2 and two
counts of firearms not to be carried without a license. 3 Appellant argues the
trial court erred in failing to suppress statements he made during his
interrogation and for barring the defense expert from testifying to
Appellant’s diminished responsibility. We affirm.
We adopt the facts and procedural history set forth by the trial court’s
____________________________________________
1 18 Pa.C.S. § 2502(a).
2 18 Pa.C.S. § 2702(a).
3 18 Pa.C.S. § 6106(a).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A23033-17
opinion.4 See Trial Ct. Op., 11/1/16, at 1-6. In this timely appeal,
Appellant raises the following issues for our review:
Whether the trial court erred in failing to order evidence of
statements made by [Appellant] in response to police
interrogation suppressed and excluded from trial?
Whether the trial court violated Pa.R.E. 702 by barring
defense witness Dr. Clarence Watson, M.D., J.D. from
presenting expert testimony in support of [Appellant’s]
defense of diminished responsibility and violated [Pa.R.E.]
703 by ruling that Dr. Watson could not mention
statements made to the police or to him by [Appellant] in
the context of testifying to the basis for his expert opinion
in support of [Appellant’s] defense of heat of passion and
unreasonable self-defense unless [Appellant] testified at
trial or unless the statements made to police were
introduced into evidence by the Commonwealth?
Appellant’s Brief at 2.
Appellant argues his statements made during his police interrogation
should have been suppressed because he was not properly advised of his
Miranda5 rights.6 Specifically, Appellant claims his statement was obtained
during an unlawful two-step interrogation process, and that the
____________________________________________
4 We note the trial court’s opinion states Appellant’s post-sentence motion
was denied on November 13, 2015; however, the motion was actually
denied by operation of law on November 16, 2015.
5 Miranda v. Arizona, 384 U.S. 436 (1966).
6 Although Appellant alleges the trial court erred in not suppressing his
statement to the police, the Commonwealth did not introduce Appellant’s
statement at trial and Appellant did not testify.
-2-
J-A23033-17
Commonwealth failed to prove Appellant orally waived his Miranda rights.
Additionally, Appellant argues the trial court violated Rules 702 and
703 of the Pennsylvania Rules of Evidence, respectively, by preventing
Appellant’s defense expert from testifying in support of Appellant’s claim of
diminished responsibility, and by not allowing the defense expert to mention
any of Appellant’s statements to the expert that would support Appellant’s
claims of provocation or unreasonable self-defense.7 Appellant contends he
did not contest shooting the victim and, therefore, his defense of diminished
responsibility was permissible under Rule 702 to show the absence of malice
and a specific intent to kill. Moreover, Appellant asserts that Rule 703
permitted the defense expert to testify to statements Appellant made to the
expert that indicated Appellant has an “unspecified depressive disorder with
psychotic features” that would have prevented Appellant from formulating a
specific intent to kill. Appellant’s Brief at 32. Appellant concludes this Court
should vacate his judgment of sentence and remand for a new trial. We
disagree.
After a thorough review of the record, the briefs of the parties, the
____________________________________________
7 We note the trial court did not bar the defense expert’s opinion on
provocation or unreasonable self-defense, but rather precluded his
testimony regarding “self-serving” statements Appellant made to the expert
that did not have a factual basis otherwise introduced into evidence. Trial
Ct. Op. at 17-18. Nevertheless, the trial court instructed the jury on both
voluntary manslaughter and unreasonable self-defense. See N.T. Trial,
7/7/15, at 199-208. Furthermore, Appellant did not testify at trial and
defense counsel did not call the expert to testify on any basis.
-3-
J-A23033-17
applicable law, and the well-reasoned opinion of the Honorable Sandy L.V.
Byrd, we conclude the trial court’s opinion comprehensively discusses and
properly disposes of the issues presented. See Trial Ct. Op. at 9-19 (finding
the totality of the circumstances indicates Appellant’s Miranda rights were
not violated as he knowingly, intelligently, and voluntarily waived them,
Appellant was not entitled to expert testimony on diminished capacity
because he lacked a medical basis for the defense, and the defense expert
could not testify to Appellant’s statements to the expert because they were
inadmissible hearsay and did not fall under any exception). Accordingly, we
affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
-4-
Circulated 11 /17/2017 05:38 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COM1\.10NWEALTH OF PENNSYLVANIA CP-5 l-CR-0005100-2013
CP-5l-CR-0005101-2013
CP-51-CR-0005l02-2013
v. SUPERIOR COURT
CP-51-CR-0005100-2013 Comm. v. Lawis. JbreU I.
FILED
Opinion
flBRELL LEWIS 3575 EDA 2015
II 111111 II 111111111111111 NOV - 1 2016
7520165531
Criminal Appeals Unit
OPINION
First Judicial District of P
Byrd, J. November 1, 2016
On July 8, 2015 a jury convicted defendant Jibrell Lewis of first-degree murder, aggravated
assault, and two counts of carrying a firearm without a license. Defendant was sentenced to life
imprisonment without the possibility of parole for first-degree murder and an aggregate
consecutive imprisonment term of seventeen (17) to thirty-four (34) years on the remaining
charges. After defendant's post-sentence motion was denied on November 13, 2015, he filed a
notice of appeal on November 25, 2015. On December 2, 2015 this court ordered defendant to file
a statement of matters complained of on appeal. Defendant filed his statement on December 23;
2015.
STATEMENT OF FACTS
On October 7, 2012, at or around 9:00 p.m., police officers responded to 711 North 3rd
Street and found two gunshot victims inside. Stephanie Freeman was pronounced dead at the
scene from a gunshot wound to her head. Dr. Edwin Lieberman, the Commonwealth's expert in
forensic pathology, concluded to a reasonable degree of medical certainty that the cause of her
Commw. v. Jibrell Lewis Page 1 of29
death was one gunshot wound to her head, and that the manner of death was homicide. The bullet
entered the upper lid of her right eye, traveled through her brain, severing her brain stem, and
exited the rear left of her head. Because the bullet severed her brain stem, her life functions ceased
immediately. The presence of gunpowder stippling around her entrance wound and the absence
of soot on her body or clothing indicated that the gun was fired about eight (8) to twelve ( 12)
inches away from the front of Ms. Freeman's face. N.T. 07/01/15, pp. 93-96; N.T. 07/02/15, pp.
6-34, 67-68; N.T. 07/07/15, p. 14.
Her daughter, Chrissy Johnson, 1 was found suffering from a gunshot wound to the left side
of the face, and was transported to Hahnemann Hospital for treatment. The bullet fractured Ms.
Johnson's left cheekbone and jaw. Surgery was performed and a bullet fragment was removed
from the joint of her jaw. Ms. Johnson survived her gunshot wound, but suffered nerve damage
to the left side of her face. She was released from the hospital on October 12, 2012. N.T. 07/01/15,
pp. 93-96; N.T. 07/02/15, pp. 67-68; N.T. 07/07/15, pp. 14, 26-27.
Police Officer Clyde Frasier, Crime Scene Unit, responded on October 7, 2012 at 11:55
p.m., and observed blood everywhere inside the residence. He also found condoms on the third
floor. He recovered one projectile from the vestibule, and one .9mm fired cartridge casing from
the second floor landing. He submitted this ballistics evidence to the Firearms Identification Unit.
Officer Frasier also collected six (6) blood samples from the crime scene and submitted them to
the criminalistics laboratory. The DNA from the samples matched those of Chrissy Johnson and
Stephanie Freeman. N.T. 07/01/15, pp. 121-157; N.T. 07/07/15, p. 28.
Chrissy Johnson was interviewed by homicide detectives on Octa ber 11, 2012 and October
12, 2012. She gave two statements and provided a description of defendant as the man who shot
1
Chrissy Johnson testified that although she was born male, she had undergone sexual reassignment surgery over a
decade before this incident. N.T. 07/02/15, pp. 73-74.
Conimw. v. Jibrell Lewis Page 2 of29
her and her mother, and gave police his phone number. At trial, Ms. Johnson identified defendant
as the man who came to her home on the night of the incident, October 7, 2012 around 8:00 p.m.,
and shot her and her mother. Defendant had first called her in response to an advertisement for an
escort service that she placed on the internet. She spoke to defendant several times over the phone
before ultimately inviting him to her home. When defendant arrived, they went upstairs, sat down
and began a conversation. Shortly after his arrival at her home, Ms. Johnson performed oral sex
on defendant. She testified that defendant asked for vaginal sexual intercourse, but she declined.
Ms. Johnson testified that defendant was dissatisfied with her response and said something to the
effect: "This is what I come all the way down here for?" Defendant then demanded money from
her, at which point Ms. Johnson told him to leave and shouted for her mother, who was downstairs,
to call the police. When she tried to escort defendant out of her home he pulled a gun from his
jacket, and she ran into the bathroom. While Ms. Johnson was hiding in the bathroom, defendant
fired a shot through the door and the bullet struck her in the face. After being shot, she exited the
bathroom and told defendant she would give him money if he would leave. She and defendant
went back upstairs, and she gave him approximately one thousand ($1000) dollars. After giving
him the money, a struggle ensued when she tried, unsuccessfully, to grab the gun from his hand.
Afterward, defendant, gun in hand, ran down the stairs where he encountered and killed Stephanie
Freeman before exiting the home. N.T. 07/01/15, pp. 93-96; N.T. 07/02/15, pp. 46-143; N.T.
07/07/15, p. 14.
Ms. Johnson gave Detective Kevin Judge the cell phone number that defendant had given
her earlier. After receiving this information, Detective Judge prepared a search warrant for that
phone number. Defendant's cell phone records showed that he used his cell phone near Chrissy
Johnson's home. Police also discovered that the cell phone was used numerous times on the 400
Commw. v. Jibrell Lewis Page 3 of29
block of North 41 st Street. As a result, police conducted surveillance of that area on October 12,
2012, starting around 11:15 a.m. N.T. 06/30/15, pp. 15-48; N.T. 07/02/15, pp. 145-160; N.T.
07/07/15, pp. 8-19.
At around 11 :30 a.m., on Octa ber 12, 2015, Deputy Marshal Robert Clark, along with other
law enforcement agents, observed defendant exit a residence at 403 North 41 st Street. As he
walked toward Deputy Marshall Clark's unmarked vehicle, defendant adjusted his waistband and
revealed the butt of a firearm. Deputy Marshall Clark's observations resulted in a foot pursuit of
defendant, before he was ultimately stopped and arrested. Recovered from defendant was a black
semiautomatic handgun, and from inside a bag he was carrying the following items: a mask with
two eye holes cut out, a small vial containing an unknown liquid, a soft body armor vest, and a
laptop computer and other electronic items. N.T. 07/02/15, pp. 148-157.
After his arrest, defendant was taken to Penn Presbyterian Medical Center, where he
received medical treatment. He was subsequently transported to the Homicide Unit and
interviewed by Detective James Crone. In his interview, defendant stated he had never met Chrissy
J ohnson prior to the incident, but had found her number online, called her that day, and she invited
him over to her home. Upon arriving at her home, she invited him inside and they went upstairs.
He stated that Ms. Johnson began making sexual advances toward him, but when he tried to feel
between her legs, she stopped him. According to defendant's statement, when he felt between her
legs, he noticed that "something didn't feel right." He stated that Chrissy Johnson stood up and
"all the female stuff went out the window, the way she was talking and standing and everything
about her changed and I knew she was a man." The two then began yelling at one another, and a
physical fight ensued. He stated that Ms. Johnson overpowered him, and he pulled out his gun in
response. He further stated that she ran into the bathroom, but he thought she was going in there
Comntw. v. Jibrell Lewis Page 4 of29
to get a razor or a knife, so when she opened the door he shot her. Defendant stated that he went
down the stairs to leave, but that Stephanie Freeman grabbed him and when he pushed her away
the gun went off. However, the Commonwealth did not introduce his statement into evidence and
defendant did not testify at trial." Commw. Ex. 6.
Police Officer Jesus Cruz testified as an expert in firearms identification and comparison.
He received the projectile and the fired cartridge casing recovered from the crime scene as well as
the projectile retrieved from Chrissy Johnson's jaw. He also received the semi-automatic firearm
that was recovered from defendant. After test-firing the semi-automatic firearm and comparing
the test-fired bullets to the two submitted projectiles, Officer Cruz concluded to a reasonable
degree of scientific certainty that they were both fired from that firearm. He was unable to
determine if the fired cartridge casing recovered from the scene was fired from that firearm due to
insufficient microscopic markings, Officer Cruz further opined that the gun would expel fired
cartridge casings to the rear right and that they could travel about three (3) to five (5) feet away
from the shooter. N,T. 07/01/15, pp. 121-157; N.T. 07/02/15, pp. 161Ml81.
Detective Valdez Trower from the SEPT A police force recovered video surveillance
footage from the following Market-Frankford Line station stops for October 7, 2012 between the
hours of 7:00 p.m. and 9:30 p.m.: the 40th Street stop, the Spring Garden Street stop at 500 North
Broad Street, and the Girard Street stop at 1200 North Broad Street. He submitted the video
surveillance footage to Detective Kevin Judge. The video surveillance footage showed defendant
getting on a train at the 40th Street stop and getting off the train at the Spring Garden stop at about
8:30 p.m., which was a short distance from Chrissy Johnson's home. He was seen wearing a black
leather jacket and a black and gray scarf The video surveillance footage showed defendant
2 Defendant litigated a pre-trial motion to suppress the statement. The motion to suppress was denied.
Commw. v. Jibrell Lewis Page 5 of29
returning to the Spring Garden Street stop at about 9:15 p.m. At that time, he was wearing the
black leather jacket but no scarf On October 8, 2012, at 4:20 p.m., Officer Robert Flade recovered
a black and gray scarf from the stairs leading to the second floor of 711 North 3rd Street.
Defendant's DNA was found on that scarf. Detectives recovered the black leather jacket from
defendant's residence. N.T. 07/02/15, pp. 181-183; N.T. 07/07/15, pp. 19-28.
The Commonwealth also introduced evidence establishing that defendant did not have a
valid license to carry a firearm in October 2012. N.T. 07/07/15, pp. 29-30.
STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
Defendant raised the following issues in his Statement of Errors Complained of on Appeal,
in accordance with Pennsylvania Rule of Appellate Procedure l 925(b ):3
1. The trial court's findings - with regard to the two-step
interrogation process to which Detective James Crone testified -
that Detective Crone advised Defendant Jibrell Lewis of his
Miranda rights before questioning the defendant pursuant to the first
step of the two step interrogation, and that the defendant made a
knowing, intelligent, and voluntary waiver of his Miranda rights
were clearly erroneous.
2. In violation of the defendant's rights against self-
incrimination wider the United States and Pennsylvania
constitutions the trial court erred in failing to order evidence of both
the oral statements allegedly made by the defendant to Detective
Crone during the first step of the two step interrogation process, and
oral and written statements allegedly made by the defendant during
the second step of the two step interrogation process suppressed and
excluded from trial for the following reasons:
a) the questioning of the defendant at the outset of the
first step of the two step interrogation process was not preceded by
adequate warnings pursuant to Miranda v. Arizona;
b) the defendant did not make a knowing, intelligent,
and voluntary waiver of his Miranda rights prior to Detective
3
The following is a verbatim account of defendant's statement.
Commw. v. Jibrel/ Lewis Page 6 of29
Crone's questioning pursuant to the first step of the two step
interrogation process;
c) even if interrogation of the defendant at the outset of
the first step of the two step interrogation process was preceded by
Miranda warnings, the oral statements made by the defendant were
not voluntary;
d) the defendant's oral and written statements made
during the second step of the two step interrogation process were the
unlawful fruit of the unlawful interrogation of the defendant during
the first step of the two step interrogation process in that - even
assuming that the defendant was advised of his Miranda rights at the
outset of the second step of the two step interrogation process - the
interrogation during the second step of the two step process was
effectively a continuation of the first step interrogation in terms of
the completeness and detail of the questions and answers to the first
step and second steps of questioning, the two statements'
overlapping content, the continuous manner and setting of the first
and second steps, the continuity of police personnel, the degree to
which the interrogator's questions treated the second step as
continuous with the first and the systematic and exhaustive manner
of the total time period of the two step interrogation process;
e) statements made by the defendant during the second
step interrogation of the two step interrogation process were not
voluntary.
3. In violation of Defendant Jibrell Lewis's
right to present a defense pursuant to his due process right to a fair
trial under the United States and Pennsylvania constitutions, the trial
court erred
a) by granting the Commonwealth's motion in
limine to bar the testimony of defense expert Dr. Clarence Watson
with respect to diminished capacity, and
b) by significantly limiting Dr. Watson's
testimony as to heat of passion and mistaken self-defense.
4. In violation of Rule 703 of the Pennsylvania Rules of
Evidence, the trial court erred by ruling that defense expert Dr.
Clarence Watson could not mention, testify, or rely upon Mr.
Lewis's statements to the police or to him in his psychiatric
interview in explaining his expert opinion even though, pursuant to
Rule 703 data and facts that arc not ordinarily admissible but are
Commw. v. Jibrell Lewis Page 7 of 29
commonly considered by experts can be discussed by the expert as
a basis for the expert's report and testimony.
5. In violation of Defendant Jibrell Lewis's right to
confrontation pursuant under the United States and Pennsylvania
constitutions, the trial -court erred by denying the 'defense the
opportunity to impeach by prior conviction the surviving
complaining witness, Chrissy Johnson, the only Commonwealth
eyewitness, with her 2005 conspiracy to commit theft of a
prostitution customer. The court's error was especially egregious
and prejudicial to the Defendant· in view of the relevance of the
crimen falsi nature of the prior conviction to the defense's factual
assertions in the instant case.
6. In violation of Defendant Jibrell Lewis's right to
present a defense pursuant to his due process right to a fair trial
under the United States and Pennsylvania constitutions, the trial
court erred by ruling that the defendant's 1996 robbery conviction,
at age 16, could be used by the Commonwealth to impeach the
defendant by prior conviction in the event the defendant took the
stand and testified.
7. In violation of Defendant Jibrell Lewis's due process
right to a fair· trial under the United States and Pennsylvania
constitutions, and specifically, in violation of Mr. Lewis's due
process right to a jury instruction on Defendant's theory of defense,
the trial court erred by refusing to give the jury a voluntary
manslaughter jury instruction on the basis of heat of passion in the
absence of cooling time.
8. In violation of DefcndantJibre11 Lewis's due process
right to a fair trial under the United States and Pennsylvania
constitutions, and specifically, in violation of Mr. Lewis's due
process right to a jury instruction on Defendant's theory of defense,
the trial court erred by refusing to give the jury an involuntary
manslaughter jury instruction on the basis of heat of passion in the
absence of cooling time.
9. The trial court abused its discretion in denying
Defendant's post sentence motion claim for relief that the verdict of
guilty to the charge of first degree murder was against the weight of
the evidence.
Commw. v. Jibrell Lewis Page 8 of 29
DISCUSSION
Defendant first alleges that this court erred in denying his motion to suppress the statement
he made to police. When reviewing a challenge to the suppression court's ruling, the appellate
court is bound by the suppression court's findings of fact so long as they are supported by the
record. Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984). The appellate court will
reverse this court's decision" 'only if there is an error in the legal conclusions drawn from those
findings.'" Commonwealth v. Basking, 970 A.2d 1181, 1187 (Pa. Super. 2009) (quoting
Commonwealth v. Hill, 874 A.2d 1214, 1216 (Pa. Super. 2005)). Thus, the appellate court must
consider "whether the suppression court properly applied the law to the facts of the case."
Commonwealth v. Ruey, 586 Pa. 230, 240, 892 A.2d 802, 807 (2006). In cases where the
defendant's motion to suppress has been denied, the appellate court will " 'consider only the
evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read
in the context of the record as a whole, remains uncontradicted.' " In re J. V., 762 A.2d 376, 379
(Pa. Super. 2000) ( quoting Commonwealth v. Reddix, 513 A.2d 1041, 1042 (Pa. Super. 1986)).
Our Superior Cami has held that "it is the sole province of the suppression court to weigh the
credibility of the witnesses. . ... Further, the suppression court judge is entitled to believe all, part
or none of the evidence presented." Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super.
1995) (citation omitted). It is the Commonwealth's burden to prove by a preponderance of the
evidence that the evidence challenged by a defendant in his motion to suppress is admissible. See
Basking.
This court did not err in denying defendant's motion to suppress the statements made to
Detective James Crone at the Homicide Unit. After defendant was taken into custody and treated
at the hospital, he was transported to the Homicide Unit, where he met with Detective James Crone.
Commw. v. Jibrell Lewis Page 9 of29
At the suppression hearing, Detective Crone stated that he observed that defendant, despite an
initial affect, appeared normal and was not under the influence of drugs or alcohol. However,
before a conversation ensued, Detective Crone orally warned defendant of his Miranda rights.
Indeed, defendant was provided the warnings from Form 75-33 lD and Form 75-33 lE, later
attached to his formal written statement.4 Defendant knowingly, intelligently and voluntarily
4
The following warnings are provided in 75-33 lD:
We have a duty to explain to you and to warn you that you have the following
legal rights
A. You have a right to remain silent and do not have to say anything at all
B. Anything you say can and will be used against you in Court
C. You have a right to talk to a lawyer of your own choice before we ask you any
questions and also to have a lawyer here with you while we ask questions
D. If you cannot afford to hire a lawyer and you want one we will see that you have
a lawyer provided to you free charge, before we ask you any questions
E. If you are willing to give us a statement, you have a right to stop any time you
wish
After Detective James Crone provided defendant with oral Miranda warnings from Form 75-33 ID, he asked
defendant the questions provided in 75-33 IE, which are as follows:
1. Q. Do you understand that you have a right to keep quiet, and do not have
to say anything at all?
2. Q. Do you understand that anything you say can and will be used against
you?
3. Q. Do you want to remain silent?
4. Q. Do you understand that you have a right to talk with a lawyer before we
ask you any questions?
5. Q. Do you understand that if you cannot afford to hire a lawyer, and you
want one, we will not ask you any questions until a lawyer is appointed for
you free of charge?
6. Q. Do you want to talk with a lawyer at this lime, or to have a lawyer with
you while we ask you questions?
7. Q. Are you willing to answer questions of your own free will, without force
or fear, and without any threats or promises having been made to you?
Commw. v. Jibrell Lewis Page 10 of 29
waived his Miranda rights. Shortly thereafter, Detective Crone provided a set of written Miranda
warnings, which defendant again waived knowingly, intelligently and voluntarily.5 He then gave
a formal written statement to Detective Crone, which was presented to defendant for his review
and signature. After his review, defendant wrote an addendum at the bottom of page four ( 4) and
then signed his statement.
s The following questions were asked by Detective Crone and answered by defendant:
1. Q. Do you understand that you have a right to keep quiet, and do not have
to say anything at all?
A. Yes.
2. Q. Do, you understand that anything you say can and will be used against
you?
A. Yes.
3. Q. Do you want to remain silent?
A. No.
4. Q. Do you understand that you have a right to talk with a lawyer before we
ask you any questions?
A. Yes.
5. Q. Do you understand that if you cannot afford to hire a lawyer, and you
want one, we will not ask you any questions until a lawyer is appointed for
you free of charge?
A. Yes.
6. Q. Do you want to talk with a lawyer at this time, or to have a lawyer with
you while we ask you questions?
A. No.
7. Q. Are you willing to answer questions of your own free will, without force
or fear, and without any threats or promises having been made to you?
A. Yes.
Commw. Exh. 6, p. 2.
Commw. v. Jibrell Lewis Page 11 of 29
After considering the evidence and determining the credibility of witnesses presented at
the suppression hearing, this court concluded that defendant voluntarily, knowingly, and
intelligently waived his Miranda rights. This determination was made after considering the
following two factors:
First[,] the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice rather
than intimidation, coercion or deception. Second, the waiver must
have been made with a foll awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon
it. Only if the 'totality of the circumstances surrounding the
interrogation' reveal both an uncoerced choice and the requisite
level of comprehension may a court properly conclude that Miranda
rights have been waived.
In re T.B., 11 A.3d 500, 505-506 (Pa. Super. 2010) (quoting Commonwealth v. Cephas, 522 A.2d
63, 65 (Pa. Super. 1987)). Those two requirements were met in this case. The credible evidence
established that defendant.was provided both oral.and written Miranda warnings. Defendant twice
waived his Miranda-rights without coercion or duress and in accordance with the constitutional
rights afforded to defendants in criminal cases. See Commonwealth v. Elmobdy, 823 A.2d 180,
183 (Pa. Super. 2003) (ruling that ''[i]t is within the suppression court's sole province as factfinder
to pass on the credibility of witnesses and the weight to be given to their testimony"). Defendant
was not intimidated, coerced, or deceived into making any of his statements. Rather, his decision
was freely and deliberately made. He was not deprived of basic necessities such as food, water,
or restroom breaks. When defendant made his choice, he was alert and fully aware of his
surroundings. He was not under the influence of drugs or alcohol. Before defendant provided his
statement, he was twice warned of his Miranda rights. Defendant understood the nature of his
rights and the consequences of his decision to provide a statement to police. There is no support
in the record for defendant's claim that his Miranda rights were violated. Based on the totality of
Commw. v. Jibrell Lewis Page 12 of29
the circumstances, this court did not err in finding that he voluntarily, knowingly, and intelligently
waived his Miranda rights."
6 At the suppression hearing, this court made the following findings of fact and conclusions of law:
Both sides having rested on the motion to suppress, the Court will make
findings of fact and conclusions of law. Herein, defendant seeks to suppress
physical evidence and defendant's statements.
One: On October r:
2012, Chrissy Johnson was shot and injured and
Stephanie Freeman was shot and killed inside 711 North 3rd Street in Philadelphia.
Two: The surviving victim, Ms. Johnson, was taken to Hannemann
Hospital for treatment where on 10/9/12 detectives attempted to interview her for
a second time here at the hospital; and although intubated, she was able to provide
a written description of the shooter, a man she had met at J 3lh and Market who
later called her and came over to her home where the incident occurred.
Three: Based on that description and information obtained pursuant to
a warrant regarding the phones used, coupled with video surveillance tapes from
SEPT A, suspect was identified; to wit, this defendant.
The suspect depicted in C- l and C-2 is as aforementioned, the defendant
in this case, Jibrell Lewis.
As the investigation continued, again, utilizing the aforementioned
phone records, cell towers and the like, one of the persons in the defendant's
phone log identified Jibrell Lewis as the person depicted in C-1 and C-2.
Six: Thereafter, surveillance was set up in the area of 403 North 41 '1
Street, defendant's home.
Seven: On that same day, 10/12/12, law enforcement agents, including
Deputy US Marshals, observed defendant exit the aforementioned property
carrying a bag while in the company of a female.
Eight: Defendant walked first in the direction of the agents and Deputy
Clark observed him, Jibrell Lewis, adjust his waistband, at which time the agent
observed the butt of a handgun.
Niue: Defendant was thereafter approached by various members of the
US Marshals' office who called out "Stop! Police!" to Mr. Lewis.
Defendant, however, did not heed. Rather, he dropped his bag and fled
with the officers in foot pursuit.
10: Defendant was ultimately tased and a gun recovered in his
immediate vicinity. Likewise, the bag, its content, were also recovered by
authorities.
11: As the foregoing makes clear, there was reasonable suspicion
to stop the defendant based on his possession of a handgun, probable cause
developed upon his abandonment of the property and subsequent flight.
Commw. v . Jibrell Lewis Page 13 of 29
Indeed, in light of the fact that the defendant fit the description of the
shooter in this case and was identified from phone records as the person who had
been in phone contact with Ms. Johnson, there was probable cause to an-est.
12: Thus, the aforementioned evidence, including the gun and the
contents of the bag, was properly seized incident to a valid arrest or as abandoned
property.
13: Once defendant was legally in custody, he was treated at
Hahnemann Hospital and later transported to the homicide unit where he was
interviewed by Detective Crone.
14: The detective observed that defendant, despite an initial affect,
appeared normal and was not under the influence of drugs or alcohol. The
detective gave the defendant oral MIRANDA warnings which were waived and a
conversation ensued.
The detective stated that the oral warnings were the same ones utilized
in the subsequent written statement; that is, they were taken from a form not unlike
the 75-33ID and 75-331-E.
Prior to taking the written statement, defendant was provided formal
MIRANDA warnings which were committed to writing as was the subsequent
formal statement which the defendant signed.
14: [sic] During the course of the oral and written interviews, the
defendant was not coerced, abused or otherwise maltreated.
Indeed, the record reflects that water, food, cigarettes were given to the
defendant and he was afforded the use of the toilet facilities.
15: Counsel's reliance on SEIBERT is misplaced.
By the language of that case, at 1024, Supreme Court 260 I, Justice
Sciuter makes the following remarks: "This case tests a police protocol for
custodial interrogation that calls for giving no warnings to the rights and counsel
until interrogation has produced a confession.
"Although such a statement is generally inadmissible, since taken in
violation of MIRANDA, the interrogating officer follows it with MIRANDA
warnings and then leads the suspect to cover the same ground a second time.
"The question here is the admissibility of the repeated statement.
Because the midstream recitation of warnings after interrogation and unwarranted
confession could not effectively comply with MIRANDA constitutional
requirement, we hold that a statement repeated after a warning in such
circumstances is inadmissible."
Clearly those arc not the facts of this case.
Finally, this Court finds the defendant's statements were made
knowingly, intelligently and voluntarily.
17: Accordingly, the motion to suppress physical evidence and the
statements is denied.
N.T. 06/30/15, pp. 111-116.
Commw. v. Jibrell Lewis Page 14 of 29
Defendant also contends that this court erred in granting the Commonwealth's motion in
limine to bar defense expert Dr. Clarence Watson's opinion testimony on diminished capacity. In
Commonwealth v. Miller, 627 A.2d 741, 748-749 (Pa. Super. 1993), the court explained that "[t]he
decision to admit or exclude expert testimony lies within the sound discretion of the trial court
[ and] the determination of the trial court will not be reversed unless an abuse of that discretion is
found to exist." In ruling on the admissibility of such evidence, "the trial court must decide
whether the evidence is relevant and, if so, whether its probative value outweighs its prejudicial
effect." Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373, 376 (1998).
This court did not abuse its discretion in denying the admission of expert testimony on
diminished capacity. Indeed, expert testimony "is admissible in all cases, civil and criminal alike,
'when it involves explanations and inferences not within the range of ordinary training knowledge,
intelligence and experience.' " Commonwealth v. Walker, 625 Pa. 450, 486, 92 A.3d 766, 788
(2014) (quoting Commonwealth v. Leslie, 424 Pa. 331, 334, 227 A.2d 900, 903 (1967)). See also
Pa. R. Evid. 702 (relating to testimony by expert witnesses). However, "[a]s with all expert
opinion ... it is essential that the salient facts relied upon as the basis for the opinion be in the
record." Commonwealth v. Paskings, 447 Pa. 350, 355�356, 290 A.2d 82, 85 (1972). Stated
another way, "[a]n expert's testimony is admissible when it is based on facts of record and will
not cause confusion or prejudice." Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super.
2008). See also Commonwealth v. Blastoli, 685 A.2d 151, 167 (Pa. Super. 1996) (ruling that "only
expert testimony which assists the jury is admissible"). In Commonwealth v. Laird, 555 Pa. 629,
645, 726 A.2d 346, 353 (1999), the court explained that a diminished capacity defense "is only
available to a defendant who admits criminal liability but contests the degree of guilt." A
successful diminished capacity defense "negates the element of specific intent and, thus, mitigates
Commw. v. Jibrell Lewis Page 15 of29
first-degree murder to third-degree murder." Commonwealth v. Rosen, 615 Pa. 305, 308, 42 A.3d
988, 990 n. l (2012). Our Supreme Court has further noted that "[ d]iminished capacity is an
extremely limited defense, which requires extensive psychiatric testimony establishing a defendant
suffered from one or more mental disorders which prevented him from formulating the specific
intent to kill." Commonwealth v. Cuevas, 574 Pa. 409, 418, 832 A.2d 388, 393 (2003).
There was nothing in the expert report by Dr. Watson on the ultimate issue of whether or
not defendant had a mental disorder or defect that directly affected his ability to formulate the
specific intent to kill. At defense counsel's request, Dr. Clarence Watson conducted a psychiatric
examination of defendant on February 26, 2015. In Dr. Watson's April 24, 2015 report, he opined
that defendant suffers from an unspecified depressive disorder with psychotic features, coupled
with alcohol and substance abuse disorders. Dr. Watson's diagnosis was based on defendant's
"longstanding symptoms and medical records indicating a history of episodic depressive
symptoms, episodic experiences of auditory hallucinations, ·and ongoing abuse of various
substances." Dr. Clarence Watson's April 24, 2015 Psychiatric Evaluation Report p. 14. Dr.
Watson explained that defendant's "description of his interaction with others reflects a heightened
preoccupation with protecting himself and avoiding situations in which he could be victimized."
Id. Dr. Watson stated that this incident caused defendant to feel "overwhelmed with desperation
to escape and interfer[ed] with his ability to think." Id. at p. 15. However, nowhere in Dr.
Watson's report did he diagnose defendant with any cognitive brain disorder that limited his ability
to formulate the specific intent to kill.
This case is analogous to Commonwealth v. Mctlullum, 558 Pa. 590, 596, 738 A.2d 1007,
1010 (1999), where our Supreme Court held that a diminished capacity defense was not established
because the expert "made no mention of Ithe defendant's] cognitive functions of deliberation and
Commw. v. Jibrell Lewis Page 16 of29
premeditation at the time of the murder or of his ability - or inability - to formulate the specific
intent to kill." Similarly, as aforementioned, the psychiatric expert in this case did not provide an
opinion on this salient issue. See also Commonwealth v, Taylor, 583 Pa. 170, 188, 876 A.2d 916,
927 (2005) (holding that "[t]he fact that [the defendant's] defense expert testified that [the
defendant] was psychotic and suffered from varying degrees of mental illness does not ineluctably
suggest that he lacked the capacity to form a specific intent to kill"); Commonwealth v.
Zettlemoyer, 500 Pa. 16, 30, 454 A.2d 937, 944 (1982), abrogated on other grounds by
Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003) (rejecting conclusion that "a
diagnosis of 'schizoid personality with paranoid features' is relevant to the issue of a defendant's
mental capacity to form the specific intent to kill"). Because Dr. Watson's report gave no medical
basis for a diminished capacity defense, his proffered expert testimony on that issue was
inadmissible and it would have only confused the jury. See Commonwealth v. Watson, 945 A.2d
174, 176 (Pa. Super. 2008) (ruling that "[a]n expert's testimony is admissible when it is based on
facts of record and will not cause confusion or prejudice"); Commonwealth v. Rounds, 518 Pa.
204, 209, 542 A.2d 997, 999 (1988) (noting that "[w]ithout the facts, a jury cannot make any
determination as to validity of the expert's opinion"); Commonwealth v. Funke, 452 A.2d 857, 862
(Pa. Super. 1982) (quoting Commonwealth v. Zeger, 186 A.2d 922, 925 (Pa. Super. 1962), which
informed that "[ o ]ne of the duties of a trial judge is 'to clarify the issues so that the jury may
comprehend the questions they are to decide' "). Thus, defendant was not entitled to expert
testimony on diminished capacity because there was no medical basis for this defense.
Defendant also contends that this court erred in a pretrial ruling by limiting Dr. Watson's
proposed expert opinion testimony regarding heat of passion voluntary manslaughter and
unreasonable belief voluntary manslaughter. Contrary to defendant's argument, this court did not
Commw. v. Jibrell Lewis Page 17 of29
limit Dr. Watson's proposed expert opinion testimony on these defenses. This court ruled that
defendant was permitted to introduce Dr. Watson's expert opinion on heat of passion voluntary
manslaughter and unreasonable belief voluntary manslaughter. However, Dr. Watson would be
precluded from testifying about self-serving statements that defendant made to him during his
psychiatric interview or the hearsay statements he made to police unless a factual basis for said
statements was introduced in evidence. However, defendant did not testify and the
Commonwealth did not introduce defendant's statement. Thus, there was no factual basis for the
expert opinion.
As mentioned above, this court did not err in precluding Dr. Watson from testifying about
the statements defendant made to him during the psychiatric interview or the statements defendant
made to police. In Commonwealth v. Miller, 627 A.2d 741, 748-749 (Pa. Super. 1993), the court
explained that "(t]he decision to admit or exclude expert testimony lies within the sound discretion
of the trial court [ and] the determination of the trial court will not be reversed unless an abuse of
that discretion is found to exist." In ruling on the admissibility of such evidence, "the trial court
must decide whether the evidence is relevant and, if so, whether its probative value outweighs its
prejudicial effect." Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373, 376 (1998). An
evidentiary ruling "will not be disturbed 'unless that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.' "
Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa. Super. 2009) (quoting Commonwealth v.
Einhorn, 911 A.2d 960, 972 (Pa. Super. 2006)).
There was no error in ruling that Dr. Watson could not testify to defendant's statements
because they were inadmissible hearsay that did not fall under any exception to the hearsay rule.
See Pa. R. Evid. 802 (stating that "[hjearsay is not admissible except as provided by these rules,
Commw. v. Jibrell Lewis Page 18 of 29
by other rules prescribed by the Pennsylvania Supreme Court, or by statute"). Certainly, an expert
"may base an opinion on facts or data in the case that the expert has been made aware of or
personally observed ... [i]f experts in the particular field would reasonably rely on those kinds of
facts or data in forming an opinion on the subject[.]" Pa. R. Evid. 703. In an attempt to establish
his claim that he committed heat of passion voluntary manslaughter or unreasonable belief
voluntary manslaughter, rather than first-degree murder, defendant sought to introduce expert
testimony that would have included his statements discussing his hearsay version of how the
incident occurred. As the court held in Commonwealth v. Towles, 630 Pa. 183, 208, 106 A.3d 591,
606 (2014), "[tjhere is a distinction between an expert using basic facts provided by laymen to
form an expert opinion, versus one who simply parrots out-of-court statements in court, thereby
acting as a conduit for hearsay." Furthermore, "Pennsylvania's Rules of Evidence do not provide
a mechanism for a criminal defendant to decline to testify and to avoid the rules of evidence by
using an expert witness to introduce his story into the record." Id. Consequently, this court did
not err in rnling that the defense expert could not "simply regurgitate what defendant told him"
because "[djefendant's version must come from the defendant on the witness stand and subject
him to cross-examination." N.T. 07/01/15, pp. 11-15. See also Commonwealth v. Miller, 605 Pa.
1, 21, 987 A.2d 638, 650 (2009) (holding that trial counsel was not ineffective for being unable to
elicit expert testimony regarding heat of passion because defendant refused to testify, thereby
making it "virtually impossible for counsel to convince the trial court" of his defense). Thus,
defendant's claim has no merit.
Defendant next alleges that his right to confrontation was violated when this court denied
his request to introduce a prior conviction of Clu·issy Johnson. It must first be noted that defendant
did not file a pre-trial motion seeking the admission of this evidence under Pennsylvania Rule of
Comntw. v. Jibrell Lewis Page 19 of 29
Evidence 404. Nonetheless, before trial commenced, this court was informed that Chrissy Johnson
was arrested in 2004 and convicted in May 2005 on charges of possession of an instrument of
crime, simple assault, and conspiracy.
This court properly denied the admission of this prior conviction because defendant failed
to establish that they were crimen falsioffenses, Pennsylvania Rule of Evidence 609(a) provides
that: ''[fJor the purpose of attacking the credibility of any witness, evidence that the witness has
been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be
admitted if it involved dishonesty or false statement." Defendant did not present any evidence
proving that Chrissy Johnson's conviction of possession of an instrument of crime, simple assault,
and conspiracy involved dishonesty or false statement. Thus, there was no error in determining
that these convictions were not crimen falsi.
Additionally, the prior conviction did not fall within the ten ( 10) year time period
proscribed by Rule 609. According to defense counsel, Chrissy Johnson was convicted on May 5,
2005, which was approximately ten ( 10) years and two (2) months from July 1, 2015, the date
defendant's trial commenced. Defense counsel conceded that Chrissy Johnson's convictions were
not within the ten (10) year time period. See N.T. 07/01/15, pp. 21-22. Pennsylvania Rule of
Evidence 609(b) states that if more than ten ( 10) years have passed, "[e]vidence of the conviction
is admissible only if: (1) its probative value substantially outweighs its prejudicial effect; and (2)
the proponent gives an adverse party reasonable written notice of the intent to use it so that the
patty has a fair opportunity to contest its use." In determining that the probative value of this
evidence did not substantially outweigh its prejudicial effect, this court considered its ruling that
defendant would not be prohibited from impeaching Chrissy Johnson on a crimen falsi conviction
Commw. v. Jibrell Lewis Page 20 of 29
that fell within the ten (I 0) year time period. 7 The record shows that both the prosecutor and
defense counsel had the opportunity to question Chrissy Johnson about her prior federal conviction
for passport fraud under a different name. See N.T. 07/01/15, pp. 17-28; N.T. 07/02/15, pp. 75-
76; 102-103.8 Thus, defendant suffered no prejudice from this court's ruling because he was
7
This court made the following ruling:
The issue .of.a 2004 arrest, that is, one that resulted in conviction for
possession of an instrument of crime, simple assault and criminal conspiracy is
one to which l have given due consideration.
There has been no Rule 404(b) motion filed. The look-back period has
expired. It's more than ten years-old. I am called upon to balance the probative
value of that conviction against its prejudicial effect.
I am assisted in that regard with the knowledge that the complainant in
this case has a second conviction for crimen falsi which falls within the ten year
period that we have been discussing. I rule that you may use the second
· conviction. You maynot use the first conviction-for any purpose.
N.T. 07/01/15, p. 27.
8
When the Commonwealth conducted direct examination of Chrissy Johnson, the following exchange occurred:
[Assistant District Attorney]: You told us that you were born as Christopher
Johnson, but since that time you used a number of names, haven't you?
[Chrissy Johnson]: Yes.
[Assistant District Attorney): You used Gerald McDonald.
(Chrissy Johnson}: Yes.
[Assistant District Attorney): That's the name that we will talk about later
- that's the name you were convicted Federally of fraud, correct?
[Chrissy Johnson]: Yes.
[Assistant District Attorney]: You also used the name of Christopher
McDonald, correct?
[Chrissy Johnson): I believe so.
[Assistant District Attorney): You used the name Wayne McDonald,
correct?
[Chrissy Johnson]: l think so.
(Assistant District Attorney]: You used the name Jacqueline Williams,
correct?
[Chrissy Johnson}: Yes.
[Assistant District A Horney J: You used all those names, essentially aliases,
correct?
[Chrissy .Johnson]: I was going through a transition.
I Assistant District Attorney]: They're different names in which you used to
hide your identity to law enforcement, correct?
Commw. v. Jibrell Lewis Page 21 of 29
afforded the opportunity to attack Chrissy Johnson's credibility. Accordingly, defendant's claim
is without merit.
Defendant further contends that this court erred in permitting the Commonwealth the
opportunity to impeach him with his 1996 conviction for robbery if he testified at trial. To the
contrary, this court did not err in permitting the introduction of this evidence. Pursuant to Rule of
Evidence 609(b ), impeachment by evidence of a criminal conviction is admissible if it is within
ten years of the "witness's conviction or release from confinement for it, whichever is later."
Defendant was sentenced for his robbery conviction on March 2, 1999, at CP-51-CR-O 100811-
1997. His sentence was completed in 2009, thereby making it a prior conviction that was about
six (6) years removed from the commencement of defendant's trial in 2015. See N.T. 06/30/15,
pp. 116-117; N.T. 07/01/15, pp. 24-28. Consequently, his robbery conviction was within the ten
[Chrissy Johnson 1: Yes. I fled my country from persecution. Of
course I will hide my identity.
N.T. 07/02/15, pp. 75-76. Defense counsel further addressed Chrissy Johnson's prior conviction during cross-
examination of her testimony:
[Defense Counsel]: I already mentioned it, I think the district
attorney did, as well, but you were convicted of fraud in Federal Court, correct,
2005?
/Chrissy Johnson]: Yes.
[Defense Counsel]: You were convicted under the name of
Gerald McDonald, correct?
[Chrissy Johnson]: I believe so.
[Defense Counsel]: All of the records of that Federal conviction
describe you as a black male, correct?
[Chrissy Johnson): It's a passport, it's an identity. I fled my
country in fear of my life. I obtained an identity. I went oversees [sic] and had
my sex change in surgery. In detail, that's what it's about.
[Defense counsel]: You committed a crime of dishonesty,
correct?
[Chrissy Johnson): Correct.
N.T. 07/02/!5, pp. 102-103.
Commw. v. Jlbrell Lewis Page 22 of29
( 10) year time limit. Although this was a juvenile adjudication, this evidence was admissible for
impeachment purposes. See Pa. R. Evid. 609(a), (d); 42 Pa. C.S. §6354(b). Even if this evidence
is considered to be more than ten (l 0) years old, the probative value of this evidence substantially
outweighed any prejudicial effect. Had defendant testified at trial, he would have been subjected
to impeachment like any other witness. See Commonwealth v. Dobrolenski, 460 Pa. 630, 640, 334
A.2d 268, 273 (1975) (avowing United States Supreme Court's ruling in Brown v. United States,
356 U.S. 148, l 54M 155 (1958), that if a defendant "takes the stand and testifies in his own defense,
his credibility may be impeached and his testimony assailed like that of any other witness").
However, defendant decided to not testify at trial. Consequently, his prior conviction was not
admitted into evidence. Accordingly, defendant cannot establish prejudice. Thus, this claim is
meritless.
Defendant also contests this court's denial of his request to instruct the jury on voluntary
manslaughter. In reviewing a trial court's refusal to provide a jury instruction, the appellate court
reviews whether the jury instruction is warranted by the evidence presented in the case.
Commonwealth v. Baker, 963 A.2d 495 (Pa. Super. 2008). The Superior Court has further
explained that "[ijn examining the propriety of the instructions a trial court presents to a jury, our
scope of review is to determine whether the trial court committed a clear abuse of discretion or an
error of law which controlled the outcome of the case." Commonwealth v. Nyankun A. Thomas,
904 A.2d 964, 970 (Pa. Super. 2006).
In Commonwealth v. Kim, 888 A.2d 847 (Pa. Super. 2005), the court held that "a homicide
defendant is entitled to a jury instruction on voluntary manslaughter only 'where the offense has
been made an issue in the case and where the evidence would reasonably support such a verdict.' "
Id. at 852 ( quoting Commonwealth v. Frederick Thomas, 552 Pa. 621, 640, 717 A.2d 468, 4 78
Commw. v. Jibrell Lewis Page 23 of29
(1998)). The crime of vo)untary manslaughter "involves a killing in a sudden and intense passion
resulting from a serious provocation or an unreasonable belief in self-defense." Commonwealth
v. Cox, 546 Pa. 515, 539, 686 A.2d 1279, 1291 (1996). Voluntary manslaughter "is an appropriate
verdict for 'heat of passion' killings, where, 'at the time of the killing, (the defendant] acted under
sudden and intense passion [ due to] serious provocation by the victim.' " Kim, 888 A.2d at 853( quoting Frederick Thomas, 552 Pa. at 640, 717 A.2d at 4 77). Specifically; "heat of passion"
includes "emotions such as anger, rage, sudden resentment or terror, which renders the mind
incapable of'reason." Commonwealth v. Speight, 544 Pa. 451, 467, 677 A.2d 317, 324-325 (1996),
abrogated on other grounds by Freeman. In Commonwealth v. Copeland, 554 A,.2d 54, 57 (Pa.
Super. 1988), the court explained that "[tjhe passion which will reduce an un]awful killing to
voluntary manslaughter must be caused by legally adequate provocation." The law "is quite
explicit that the determination of whether a certain quantum of provocation is sufficient to support
the defense of voluntary manslaughter is purely an objective standard." Commonwealth v.
McCusker, 448 Pa. 382, 389, 292 A.2d 286, 289 (1972). In determining whether there was serious
provocation, one must consider " 'whether a reasonable [person] confronted by the same series of
events, would become impassioned to the extent that his mind would be incapable of cool
reflection.'" Kim, 888 A.2d at 853 (quoting Commonwealth v. Galloway, 485 A.2d 776, 783 (Pa.
Super. 1984)).
This court did not abuse its discretion in denying defendant's request because there was no
evidence to reasonably support a voluntary manslaughter verdict. See Commonwealth v. Bohonyi,
900 A.2d 877, 883 (Pa. Super. 2006) (quoting Commonwealth v. Buksa, 655 A.2d 576, 583 (Pa.
Super. 1995), which held that the trial court has no obligation "to instruct a jury upon legal
principles which have no applicability to the presented facts").
Commw. v. Jibrell Lewis Page 24 of29
The evidence presented at trial did not establish that defendant acted under a sudden and
intense passion due to serious provocation by the victim. Defendant answered Chrissy Johnson's
advertisement offering escort service on her internet webpage, and arranged to meet her. When
he arrived at her home, she performed oral sex on him. Defendant expressed interest in having
vaginal sexual intercourse with her, but she declined. After she denied his request, he demanded
money, and pulled out his gun when Ms. Johnson asked him to leave. He then shot her in the face
before shooting her mother, Stephanie Freeman, in the head.
There is no support for the argument that defendant was seriously provoked by the victim.
In Commonwealth v. Busanet, 618 Pa. 1, 34, 54 A.3d 35, 55 (2012), the court explained that "both
passion and provocation must be established" before a killing is considered voluntary
manslaughter. Defendant may well have been upset that Chrissy Johnson rejected his demand for
vaginal sexual intercourse. He may have also felt betrayed by Chrissy Johnson's alleged deceit
regarding her gender identity. However, there is no basis for concluding that such minor
indignities rose to the level of provocation necessary to require a jury instruction on voluntary
manslaughter. See, e.g., Commonwealth v. Martin, 607 Pa. 165, 5 A.3d 177 (2010) (concluding
that the decedent's sexual advances toward the defendant may have triggered the defendant's post-
traumatic flashback of childhood sexual abuse, but it did not render defendant incapable of cool
reflection); Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277 (2011) (holding that the
defendant was not sufficiently provoked into heat of passion by argument with victim occurring
shortly before murder or by other serious issues in relationship); Commonwealth v. Sanchez, 623
Pa. 253, 315, 82 A.3d 943, 980 (2013), cert. denied, 135 S.Ct. 154 (2014) (concluding that the
defendant was not seriously provoked when there was no gun in the decedent's possession and
when the defendant "could have simply retreated" from the situation). lnstead of leaving the
Commw. v. Jibrell Lewis Page 25 of29
premises like a reasonable person would have done in this situation) defendant resorted to violence.
He shot Chrissy Johnson in her face, causing permanent injury. He also shot Stephanie Freeman
in her head, killing her. Clearly, the evidence does not establish that a reasonable person
confronted with these circumstances would have become so impassioned that he would have been
incapable of cool reflection.
Rather, the evidence clearly showed that defendant committed first-degree murder, instead
of voluntary manslaughter, as he possessed malice and the specific intent to kill the decedent. See
Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972) (reiterating that "it has long
been the law that the use of a deadly instrument on a vital part of the body is sufficient to establish
the specific intent to kill"); Commonwealth v. Davis, 479 A.2d 1077, 1080 (Pa. Super. 1984)
(ruling that "[a]n intent to kill can be formed in a fraction of a second" because "[a]ll that is
required is a conscious, fully formed intent to bring about the death of another"). See also
Commonwealth v. Pirela, 510 Pa. 43, 51, 507 A.2d 23, 27 (1986) (quoting Commonwealth v.
Berry, 461 Pa. 233, 237, 336 A:2d 262, 264 (1975), which noted that voluntary manslaughter" 'is
a concession to the infirmity of human nature, not an excuse for undue or abnormal irascibility' ").
In light of these facts, a voluntary manslaughter jury instrnction was not warranted, See Speight
(holding that trial court did not err in denying request for voluntary manslaughter heat of passion
instruction because there was no evidence that the defendant acted under heat of passion or that
killing resulted from serious provocation by the victim); Commonwealth v. Arrington, 624 Pa. 506,
86 A.3d 831 (Pa. 2014)(upholding trial court's denial of voluntary manslaughter heat of passion
instruction because evidence provided that the defendant intentionally killed victim by shooting
her in a vital area of the body).
Commw. v. Jibrell Lewis Page 26 of29
Defendant's next claim is that this court erred in denying his request for a jury instruction
on involuntary manslaughter. In Commonwealth v. Chambers, 546 Pa. 370, 382, 685 A.2d 96,
102 (1996), the court held that "[t]he trial court has broad discretion in phrasing jury instructions,
and may choose its own wording[.]" The Superior Court has also explained that "[i]n examining
the propriety of the instructions a trial court presents to a jury, [its] scope of review is to determine
whether the trial court committed a clear abuse of discretion or an error of law which controlled
the outcome of the case." Nyankun A. Thomas, 904 A.2d at 970. Additionally, an appellate court
will not find error "where the court fails to use the specific language requested by the accused, but
rather only where the applicable law is not adequately, accurately and clearly communicated to the
jury." Commonwealth v. Leber, 802 A.2d 648, 651 (Pa. Super. 2002). In reviewing a trial court's
refusal to provide a jury instruction, the appellate court reviews whether the jury instruction is
wan-anted by the evidence presented in the case. 'Commonwealth v. Baker, 963 A.2d 495 (Pa.
Super. 2008). Indeed, a trial court has no obligation "to instruct a jury upon legal principles which
have no applicability to the presented facts." Commonwealth v. Bohonyi, 900 A.2d 877, 883 (Pa.
Super. 2006) (quoting Commonwealth v. Buksa, 655 A.2d 576, 583 (Pa. Super. 1995)).
In Commonwealth v. Fletcher, 604 Pa. 493, 544, 986 A.2d 759, 791 (2009), the court held
that "[ijnvoluntary manslaughter is defined as a killing that occurs when, 'as a direct result of the
doing of an unlawful act i11 a reckless or grossly negligent manner, [the defendant] causes the death
of another person.' . . . . An instruction on involuntary manslaughter is not required unless it has
been made an issue in the case and the facts would support such a verdict.'' Id. (citing 18 Pa. C.S.
§2504(a)). See also Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa. Super. 1996) (holding that
"[ajbsent some evidence in the record showing that the [victim's] death was an accident caused by
[the defendant's] extreme carelessness, [the defendant] is not entitled to an involuntary
Commw. v. Jibrell Lewis Page 27 of29
manslaughter instruction"). In this case, there was no credible evidence to support the conclusion
that the killing was accidental or that it resulted from defendant acting in a reckless or grossly
negligent manner. Instead, as evidenced by the jury's verdict, defendant possessed the specific
intent to kill Stephanie Freeman, which warranted his first-degree murder conviction. Because the
evidence did not support an involuntary manslaughter verdict, this court did not err in denying
defendant's request for an instruction on this offense. Thus, defendant's claim is meritless.
Defendant's final allegation is that this court erred in denying his post-sentence motion.
Specifically, defendant claims that this court erred in denying his request for relief on the basis
that the guilty verdict to the charge of first-degree murder was against the weight of the evidence.
A new trial will be granted on this basis " 'only when the jury's verdict is so contrary to the
evidence as to shock one's sense of justice.' " Commonwealth v. Vanluvner, 599 Pa. 617, 630,
962 A.2d 1170, 1177 (2009) ( quoting Commonwealth v. Cousar, 593 Pa. 204, 222, 928 A.2d 1025,
1036 (2007)). In reviewing whether the verdict was against the weight of the evidence, the trial
court must exercise its discretion in determining whether" 'certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all the facts is to deny justice.' "
Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000) (quoting Thompson v.
Philadelphia, 507 Pa. 592, 601, 493 A.2d 669, 674 (1985)). The appellate court's review "is
limited to whether the trial judge's discretion was properly exercised, and relief will only be
granted where the facts and inferences of record disclose a palpable abuse of discretion."
Commonwealth v. Diggs, 597 Pa. 28, 39, 949 A.2d 873, 879 (2008). In this case, defendant has
not highlighted any evidence that should have been given greater, lesser, or equal weight than the
evidence that was introduced at trial. Moreover, the jury reached its verdict after duly considering
all relevant and properly admitted evidence. Consequently, defendant's claim that the verdict was
Commw. v. Jlbrell Lewis Page 28 of 29
against the weight of the evidence has no merit. Thus, this court did not abuse its discretion in
denying defendant's post-sentence motion.
Accordingly, in light of the foregoing, the judgment of sentence should be AFFIRMED.
BY THE COURT,
��
�d,J.
Commw. v. Jibrell Lewis Page 29 of 29