Com. v. Perkins, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DEVONTE PERKINS :
:
Appellant : No. 793 EDA 2019
Appeal from the Judgment of Sentence Entered February 12, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006907-2017
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: FILED MAY 28, 2020
Devonte Perkins (Appellant) appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
trial convictions of first-degree murder1 and related offenses. Appellant
argues the trial court erred in refusing to provide a voluntary manslaughter
jury instruction. We affirm.
On September 19, 2017, the Commonwealth charged Appellant with,
inter alia, criminal homicide, first-degree murder, possessing instruments of
crime (PIC), receiving stolen property (RSP) (with respect to the gun), persons
adjudicated delinquent not to possess firearms, and firearms not to be carried
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1 18 Pa.C.S. § 2502(a).
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without a license.2 Appellant was 18 years old at the time of the underlying
offenses.3 A jury trial commenced on December 3, 2018, at which the
Commonwealth presented the following evidence: on June 27, 2017, Blaine
Jones, Jr. (Victim) and Latasha Hanson were engaged in a verbal dispute when
Hanson threatened him and called Appellant on her cellphone to come to the
scene. Appellant and two other men, James Carroll and Everett Wilson,
arrived and surrounded Victim. The individuals continued to quarrel. Victim
yelled to his father, “Dad, go get your gun.” N.T. Jury Trial, 12/3/18, at 48
(testimony of Victim’s father). Video surveillance of this encounter showed
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2 18 Pa.C.S. §§ 907(b), 2501, 3925(a), 6105(c)(7), 6106(a)(1).
3 We note that several documents in the record state Appellant’s birth date is
December 17, 1999. See Order of Sentence, 2/12/19; Police Criminal
Complaint, at 1, 9/18/17. If so, Appellant would have been 17½ years old at
the time of the offense and thus subject to sentencing as a juvenile. See
Miller v. Alabama, 567 U.S. 460, 465 (2012) (sentence of “mandatory life
without parole for those under the age of 18 at the time of their crimes violates
the Eighth Amendment’s prohibition on ‘cruel and unusual punishments’”);
Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017). Furthermore,
Appellant’s present counsel — who was appointed following the notice of
appeal — stated in an amended Pa.R.A.P. 1925(b) statement that Appellant’s
birth date was December 17, 1999, and averred the trial court erred in failing
to consider the Miller factors at sentencing. Appellant’s Amended Statement
of Matters Complained of on Appeal, 9/19/19, at 4-5.
However, we note that at sentencing, the Commonwealth specified
“[t]he psychological evaluation has an incorrect birthdate for [Appellant],
December of 1999. But [Appellant’s] birthday is in fact June 17, 1999.” N.T.
Sentencing, 2/9/19, at 14-15. Appellant did not object and the trial court
accepted June 17, 1999, at his birth date. Appellant was thus 18 years and
11 days old at the time of the offense. Furthermore, we note Appellant’s
counsel has abandoned, on appeal, any Miller and Batts sentencing claim,
and indeed acknowledges Appellant was 18. See Appellant’s Brief at 8-10.
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the group quickly disperse as Carroll sustained a gunshot to his thigh.
Appellant crouched behind a parked SUV after this gunshot. N.T. Jury Trial,
12/4/18, at 71 (testimony of Sheriff Joseph McFate explaining details of video
as it played). Victim began running away. N.T., 12/3/18, at 53. Appellant
then emerged from behind the SUV in a “shooting stance” toward Victim. N.T.,
12/4/18, at 65, 74. Appellant began running too and chased after Victim,
firing multiple shots and shooting him. N.T., 12/3/18, at 55. Victim’s father,
who witnessed the entire incident, rushed his son to the hospital where he
died.
The assistant medical examiner, presented as a forensic pathology
expert witness, testified that Victim sustained gunshot wounds to his upper
back and the back of his arm, which were consistent with Victim running and
raising his right arm in a defensive posture. N.T. Jury Trial, 12/5/18, at 43-
44. Ballistics evidence showed six fired cartridge cases recovered at the crime
scene came from the same firearm. Id. at 20, 22-23. At trial, Victim’s father
testified that he never retrieved his firearm and did not see anyone in
possession of a firearm other than Appellant. N.T., 12/3/18, at 52-53, 106-
07.
Appellant presented one exhibit — a statement to police by Victim’s
uncle — but did not testify.
Appellant requested a voluntary manslaughter jury instruction. The trial
court denied this request, finding “the evidence presented does not support
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the charge based on the arguments of counsel and the record.” N.T., 12/5/18,
at 93. We note Appellant did not object to the jury instructions after they
were given. See id. at 169.
On December 5, 2018, the jury found Appellant guilty of criminal
homicide, first-degree murder, PIC, RSP, and firearms not to be carried
without a license. The trial court separately found Appellant guilty of persons
adjudicated delinquent not to possess firearms. N.T., 12/5/18, at 179-81. On
February 12, 2019, the trial court imposed a mandatory sentence of life
imprisonment without parole for the murder conviction.4 Appellant then made
an oral motion for a new trial on the grounds that the verdict was against the
weight of the evidence, which the trial court denied. N.T. Sentencing,
2/12/19, at 20. Appellant did not file a post-sentence motion.
On March 8, 2019, Appellant’s counsel filed a timely notice of appeal
along with a motion to withdraw from the representation, which the trial court
granted. The court appointed the Delaware County Public Defender’s office;
however, on June 24, 2019, the Public Defender cited a conflict of interest and
requested that the court appoint another attorney. The court agreed and on
June 26th, appointed present counsel.
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4The court also imposed the following sentences of imprisonment, all to run
consecutive to his life sentence: (1) 60 to 120 months for persons adjudicated
delinquent not to possess firearms; (2) 42 to 84 months for firearms not to
be carried without a license; (3) 27 to 54 months for RSP; and (4) 16 to 32
months for PIC. Order of Sentence, 2/12/19.
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Neither the trial docket nor the record includes any initial order directing
Appellant to file a Pa.R.A.P. 1925(b) statement. Instead, on August 2, 2019,
the trial court issued an order purporting to grant Appellant’s request for an
extension of time to file a concise statement. This order set a deadline of 21
days, by August 23, 2019. Order, 8/2/19. Appellant filed a Rule 1925(b)
statement on August 26th, after the court’s purported deadline. Appellant
then filed, on September 19th, an amended Rule 1925(b) statement, without
any record indication that he requested or was granted a further extension of
time.
Without clarification from the trial court as to whether there was an
earlier Rule 1925(b) order, the effect of the court’s August 2, 2019, order is
not clear. See Pa.R.A.P. 1925(b)(4)(vii) (issues not raised in accordance with
this Rule are waived); Commonwealth v. Gravely, 970 A.2d 1137, 1145
(Pa. 2009) (appellant who seeks extension of time to file Rule 1925(b)
statement must file written application setting out good cause, and failure to
do so will result in waiver of all issues not raised by filing deadline). However,
even if we were to conclude Appellant filed an untimely statement, we may
proceed to review the merits of Appellant’s claim, which were raised in the
first Rule 1925(b) statement and addressed by the trial court in its opinion.
See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012)
(attorney’s untimely filing of Rule 1925(b) statement is per se ineffectiveness
from which appellant is entitled to prompt relief; remand is not necessary
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where trial court addressed issues raised in the statement, and this Court may
address merits thereof).
Appellant presents one issue for our review:
1. Did the court err in not allowing the requested charges of
voluntary manslaughter concerning [A]ppellant? That [A]ppellant
argues there was enough and sufficient evidence that the shooting
resulting in the death of [Victim] was a result of heat of passion
or unreasonable belief. That [V]ictim or some other person
involved in this matter had a gun and shot their own pistol first,
striking . . . Carroll in the thigh. That [A]ppellant in this matter
reacted to this sudden provocation in the heat of passion or with
an unreasonable belief and committed this [m]anslaughter. That
the jury instruction for voluntary manslaughter should have been
given to the jury as this issue was a decision for the fact finder to
resolve and that failure prejudiced [A]ppellant.
Appellant’s Brief at 4.
Appellant contends the trial court erred when it denied his request for a
voluntary manslaughter jury instruction, and thus he did not receive a fair
trial. Appellant maintains there was sufficient evidence to demonstrate he
acted in the heat of passion and reacted to serious provocations. Appellant
highlights such facts as the close proximity of all men involved who were
loudly screaming at each other, Victim’s request for his father to get his gun,
and the unknown origin of the shot that hit Carroll. Appellant’s Brief at 12.
We conclude this issue is waived.
In order to preserve a claim of error regarding the denial of a request
for a jury instruction, Pennsylvania Rule of Criminal Procedure 647 requires
that a party make “specific objections [ ] thereto before the jury retires to
deliberate.” Pa.R.Crim.P. 647(C). “[T]he mere submission and subsequent
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denial of proposed points for charge that are inconsistent with or omitted from
the instructions actually given will not suffice to preserve an issue, absent a
specific objection or exception to the charge or the trial court’s ruling
respecting the points.” Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa.
2005).
Here, we find no place in the record where Appellant preserved a
challenge to the denial of his request for a jury instruction on voluntary
manslaughter. While Appellant requested a charge on voluntary
manslaughter, he did not object after the court gave the jury instructions as
given. See N.T., 12/5/18, at 169. Instead, when the trial court asked both
parties whether they had any objections to the jury charge, trial counsel
stated, “No, sir.” Id. As Appellant did not properly preserve this issue for
appeal, any claim of error regarding the voluntary manslaughter jury
instruction is waived. See Pa.R.Crim.P. 647(C); Pressley, 887 A.2d at 225.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/20
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