Com. v. Grazioli, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOHN GRAZIOLI :
:
Appellant : No. 685 WDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Erie County Criminal Division
at No(s): CP-25-CR-0001341-2018
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 10, 2020
John Grazioli (Appellant) appeals from the judgment of sentence
entered in the Erie 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 intoxication jury
instruction. We affirm.
Appellant shot his wife, Amanda Grazioli (Wife), in the back of the
head as she slept. On appeal, Appellant claims he was intoxicated when he
placed a loaded handgun to the head of his wife and fired the weapon ending
her life. The trial court summarized the evidence presented by the
Commonwealth at trial as follows:
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2702(a)(1).
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Exactly one month before the murder, Appellant purchased a
firearm from a local sports store. [N.T. Trial, 2/5/19, at 153-
55]. At trial, he claimed that the gun was intended as a birthday
present for [Wife] due to their concern over violent crime in Erie.
[N.T. Trial, 2/6/19 afternoon, at 16-17]. He also claimed that
when he took the gun out of the closet at the time of the
murder, his purpose in doing so was to give her [the] birthday
present. [Id. at 31, 33.]
[Wife’s] birthday, however, was still a month away. [N.T.
Trial, 2/6/19 morning, at 33-35.2]
Trial Ct. Op., 8/8/19 at 6. Furthermore, Appellant left the gun’s instruction
manual, the original plastic case, the “valuable” holster, and a box of
ammunition at his office. Also, some ammunition remained missing. Id.
About ten days before the murder, . . . Appellant told his ex-wife
[Erica Grazioli, (Ex-Wife)] that he was “getting [Wife] out of our
lives” and begged her to “please, please keep this secret until I
serve her . . . . ” [N.T., 2/5/19, at 130]. His ex-wife assumed
he was merely talking about serving divorce papers. No divorce
papers, however, turned up during police investigations of the
case. [N.T., 2/6/19 morning, at 41]. Appellant presented no
evidence or witness to show that he had gone to an attorney to
have such papers prepared.
Id. at 5.
Finally, the day before the murder, March 7, 2018,
Appellant e-mailed his ex-wife and said “I hope to have
everything resolved by Friday [March 9, 2018].” . . . Instead, by
the end of the next day, [Wife] was dead.
Id. at 6.
Appellant made sure his children would not be present at the
scene, arranging to have them stay with his ex-wife during the
2The cover page of this transcript identifies the proceedings as “Jury Trial -
Day 3 (Morning Session)” and held on “Monday, February 6, 2019.”
However, we note the correct date of the proceedings was Wednesday,
February 6, 2019.
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period of time when the crime would be committed. [N.T.,
2/5/19, at 131-32].
Id. at 5.
On March 8, 2018, at 2:16 p.m., Appellant called Ex-Wife “and clearly
expressed that he had killed” Wife. Trial Ct. Op. at 8. Appellant also told
Ex-Wife he “had the gun with him and that he was going to kill himself.”
N.T., 2/5/19, at 139. Ex-Wife asked her co-worker to call the police, and
the Millcreek Township Police responded to Appellant’s home. Id. at 25-26,
141. Responding police officers discovered Wife’s body in her bed, covered
with a blanket. Id. at 33. Wife sustained a gunshot to the back of her
head. Id. at 52.
The trial court recounted:
 Not long after his conversation with [Ex-Wife], Appellant
surrendered to and was arrested by the police.
 At 4:00 PM, after his arrest, Appellant was brought into the
Millcreek Police station. An officer with a significant history of
dealing with drug-impaired individuals testified Appellant
showed no signs of intoxication when he was brought to the
station. Appellant showed: (1) no slurred speech, (2) no
impaired movement, (3) no illness, and (4) no smell of
alcohol. [N.T., 2/5/19 at 99-103]. And during his interview
with the police directly following, during which he showed no
signs of intoxication, Appellant never claimed that killing
[Wife] was an accident.
Trial Ct. Op. at 8-9.
With respect to Appellant’s claim he was intoxicated at the time of the
shooting, the trial court highlighted Appellant’s relevant actions after the
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shooting:
 By 6:45 AM, Appellant was sending text messages to his
children. The texts included clearly expressed sentiments
such as “Good morning! I love you both with all my heart.”
[N.T., 2/6/19 morning, at 71].
 The police found [Wife’s] pink cell phone inside Appellant’s car
after they arrested him. [Id. at 13]. Review of the phone’s
contents revealed that by 9:00 AM Appellant had begun using
that phone to text [Wife]’s co-workers and friends to make it
appear that she was still alive, specifically by sending
messages saying that she was ill and would miss work, etc.
[N.T., 2/5/19, at 85-96].
* * *
 Appellant was sober enough to leave a note in the room
where [Wife]’s body was later discovered, saying:
“I killed [Wife]. Next of kin Denise Katz . . . My
attorney is John Evanoff. He has my will. Phone
number 814-490-3156. My ex-wife will need access to
the house to get our children’s things. Everything goes
to them. She has keys. Erica Grazioli, 814-881-2141.
The dogs are harmless. They are in the basement, Ari
and Chloe. If my kids want them, they can take the
dogs. Sorry for all of this. John Grazioli. The password
for my phone (black) is 039280.” [Id. at 39].
Trial Ct. Op. at 7-8.
Additionally, Appellant placed a box on Ex-Wife’s porch, which
contained a recently-made will and notes to Ex-Wife and their children, “all
clearly and concisely written.” Trial Ct. Op. at 4, 8. In the letters to his
children, Appellant “expresse[d] frustration for how badly [Wife] treated”
them. Id. at 4.
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Appellant even planned for his two dogs to be taken care of.
After locking them in cages in his basement, he left a note for
the police stating that “The dogs are harmless. They are in the
basement . . . If my kids want them, they can take the dogs.”
[N.T., 2/5/19, at 39].
Id. at 5.
The case proceeded to a jury trial on February 4, 2019. Ex-Wife
testified that during her telephone conversation following the shooting, “at
no point [had Appellant] claimed that the killing was a result of any form of
drug impairment or intoxication. She did not testify that he claimed it was
an accident.” Trial Ct. Op. at 8, citing N.T., 2/5/19, at 142.
Appellant testified on his own behalf to the following. On the evening
of March 7, 2018, he and Wife both consumed alcohol, cocaine, and
marijuana. N.T., 2/6/19 afternoon, at 23, 25-28. Appellant additionally
took one Ativan. Id. at 29. Later, he and Wife were in bed, and Wife was
facing away from him because the dog was lying against her. Id. at 33.
Appellant told Wife, “Here’s your present.” Id. Wife could not roll over
because of the dog, but she turned her head and said, “Thanks, Babe.” Id.
Appellant showed Wife the gun, and pulled the “slide” on it to show her how
to load the weapon. Id. At trial, Appellant stated he did not know if the gun
had a safety mechanism, but he believed there was a “push button” to
unload the weapon. Appellant testified that as he attempted to unload the
gun, he pressed “a button on the side” with his thumb and squeezed the
trigger causing the weapon to discharge into the back of Wife’s head. Id. at
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34. After shooting Wife, Appellant pulled the covers over her head. Id. at
74. Later that morning, he wrote letters to his children. Id. at 36. Instead
of calling authorities, Appellant went to eat lunch and attend mass, where he
had the opportunity to see his children. Id. at 37. Appellant did not call any
other witnesses and did not present expert testimony. Significantly, he did
not present any evidence that would corroborate his claim of intoxication.
Finally, we note firearms expert witness, Pennsylvania State Police
Corporal Dale Wimer, testified that Appellant’s “firearm discharged at
approximately 10 pounds of trigger-pull weight,” and it was highly unlikely
“that the firearm could discharge accidently.” N.T. Trial, 2/6/19 morning, at
54.
Appellant requested the trial court provide a voluntary intoxication jury
instruction.3 The Commonwealth objected and the court denied Appellant’s
request. N.T. Trial, 2/7/19, at 5.4 The jury found Appellant guilty of murder
of the first degree, possession of an instrument of crime, aggravated
assault, recklessly endangering another person, and carrying a firearm
without a license.5 On April 5, 2019, the court sentenced Appellant to an
3 See Pa. SSJI (Crim) 8.308(B) (jury may be instructed voluntary
intoxication is defense to crime of murder in first degree).
4 The cover page of this transcript identifies the proceedings as “Jury Trial
Day 4 of 4” and held on “Thursday, February 6, 2019.” However, we note
the correct date of the proceedings was Thursday, February 7, 2019.
5 18 Pa.C.S. §§ 907(a), 2702(a)(1), 2705, 6106(a)(2).
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aggregate term of life imprisonment without parole. Appellant did not file a
post-trial motion.
On May 3, 2019, Appellant timely filed a notice of appeal and complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
Appellant presents one issue for our review:
Whether the trial court committed an error of law and/or abuse
of discretion when it denied [Appellant’s] request to adopt the
proposed point of charge of Voluntary Intoxication or Drugged
Condition as a Defense to First Degree Murder, despite evidence
presented through trial by both parties supporting the provision
of this charge.
Appellant’s Brief at 4. Appellant contends the trial court erred when it
denied his request to adopt the proposed jury instruction of voluntary
intoxication or drugged condition as a defense to first-degree murder.6
Appellant cites his trial testimony that in the hours prior to Wife’s death,
they both consumed alcohol and used cocaine and marijuana, while he also
used the prescription drug, Ativan. Appellant argues the Commonwealth’s
expert witness established that Wife’s toxicology screen revealed the
presence of marijuana, Zoloft, cocaine and alcohol. Id. at 9-10, citing N.T.,
2/5/19, at 56, 60-62, 77. Further, the expert explained how a combination
of these drugs could affect an individual’s neurobiological impulses and
6For a defendant who proves a diminished capacity defense, first-degree
murder is mitigated to third-degree murder. Commonwealth v.
Saranchak, 866 A.2d 292, 299 (Pa. 2005).
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cognitive abilities. Appellant notes he was willing to submit to a blood test,
to prove his intoxication, but officers did not conduct one. Appellant
believes the blood test “may” have provided exculpatory evidence. Id. at 11.
Thus, Appellant argues, he presented sufficient evidence of his impairment
to warrant a voluntary intoxication jury instruction. We disagree and find no
relief is due.
The standard of review for a trial court’s decision to refuse a
diminished capacity jury instruction based on voluntary intoxication is an
abuse of discretion. Commonwealth v. Clemons, 200 A.3d 441, 465 (Pa.
2019), cert. denied, 140 S.Ct. 176 (2019).
As our Supreme Court has explained:
In examining jury instructions, our scope of review is to
determine whether the trial court committed a clear abuse of
discretion or an error of law controlling the outcome of the case.
A charge will be found adequate unless the issues are not made
clear, the jury was misled by the instructions, or there was an
omission from the charge amounting to a fundamental error.
Commonwealth v. Chambers, 980 A.2d 35, 49-50 (Pa. 2009) (quotation
marks and citations omitted).
In regards to the abuse of discretion standard, we note:
When a court comes to a conclusion through the exercise
of its discretion, there is a heavy burden to show that this
discretion has been abused. It is not sufficient to persuade the
appellate court that it might have reached a different conclusion,
it is necessary to show an actual abuse of the discretionary
power. An abuse of discretion will not be found based on a mere
error of judgment, but rather exists where the court has reached
a conclusion which overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
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partiality, prejudice, bias or ill-will. Absent an abuse of that
discretion, we will not disturb the ruling of the trial court.
Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007) (citations
omitted).
“A criminal homicide constitutes murder of the first degree when it is
committed by an intentional killing.” 18 Pa.C.S. § 2502(a). Our Supreme
Court has stated:
“A defense of diminished capacity negates the element of
specific intent, and thus mitigates first-degree murder to third-
degree murder.” Commonwealth v. Padilla, . . . 80 A.3d
1238, 1263 ([Pa.] 2013) . . . . The fact that the record contains
some evidence that the defendant consumed an intoxicant will
not suffice to justify a diminished capacity instruction. [Id.]. A
defendant is entitled to the instruction only when he “was
overwhelmed to the point of losing his faculties and sensibilities.”
Clemons, 200 A.3d at 465 (some citations omitted).
In Padilla, the defendant argued his convictions of first-degree
murder should be vacated because the trial court erred when it instructed
the jury there was no evidence of diminished capacity due to his ingestion of
alcohol and/or drugs. Padilla, 80 A.3d at 1263. The Supreme Court of
Pennsylvania, affirmed, reasoning the defendant’s own psychologist expert
witness testified the defendant’s ability to form intent to kill was “likely
impacted,” but he “had not lost control over his behavior.” Id. at 1266.
The Court further noted that while the trial court instructed the jury “there
was no evidence to support a diminished capacity defense based solely on
drug and alcohol consumption,” the “court’s instructions explicitly allowed
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the jury to consider the testimony regarding voluntary intoxication.” Id. at
1268.
In Clemons, the defendant challenged the denial of a voluntary
intoxication jury instruction after being convicted of first-degree murder.
Clemons, 200 A.3d at 465. The defendant claimed that evidence of beer
cans and drugs at the crime scene, and the fact that he was intoxicated
when he turned himself into authorities 24 hours after the murder, was
sufficient for the instruction. Id. at 466. Relying on Padilla, the defendant
further argued that a defendant asserting voluntary intoxication is entitled to
a Padilla-like jury instruction in every circumstance. Clemons, 200 A.3d at
467. Our Supreme Court noted the instruction provided by the court in
Padilla conformed to the expert testimony and circumstances presented at
that particular trial, and did not constitute reversible error on that record.
Id. The Court clarified that its ruling in Padilla did not create a new general
rule applicable to any defendant who seeks to argue voluntary intoxication.
Id. The Court then concluded the defendant did not demonstrate the
evidence of record compelled the instruction, particularly because there was
no evidence he was sufficiently intoxicated at the time of the murder. Id. at
465. The Court importantly noted that even if the defendant had consumed
beer, nothing in the record showed he was so intoxicated that he lost control
of his faculties. Id. at 466.
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A diminished capacity defense based on voluntary intoxication cannot
be asserted by mere evidence of intoxication, but rather requires evidence
that demonstrates the defendant was intoxicated to such an extent he was
unable to form the requisite intent. Commonwealth v. Spotz, 896 A.2d
1191, 1218 (Pa. 2006). Moreover, “[a] defense of diminished capacity is
only available to a defendant who admits criminal liability but contests the
degree of guilt.” Commonwealth v. Laird, 726 A.2d 346, 353 (Pa. 1999).
In the instant matter, the trial court opined:
At trial, Appellant presented no evidence that he had been
intoxicated to the point of losing his faculties and sensibilities at
the time of the murder, as per Clemons. In fact, Appellant
offered no proof that he had even been intoxicated. The vast
majority of evidence presented at trial clearly showed that
Appellant committed the killing as a result of a preconceived
plan, as opposed to a temporary, drug-induced haze. There was
insufficient evidence to require this Court to give the jury
Appellant’s desired jury instruction. . . .
During trial, Appellant brought forward no expert witnesses
to testify regarding the mental effects of taking the drugs he
claimed to have been using on the night in question. He further
presented no expert testimony regarding what amount of such
drug use would lead to the kind of impairment he claims to have
been under, or whether the effects of that level of drug use
would have been obvious to people interacting with him in the
hours that followed. The fact that the record contains some
evidence that Appellant consumed intoxicants will not suffice to
justify a diminished capacity instruction. [Clemons, 200 A.3d at
465]. While a number of circumstances make clear that drugs
were present in [Appellant’s] home on the night of the murder,
no proof was presented to the Trial Court that Appellant used
those drugs himself on that night. The only proof of drug use
was in regards to [Wife], who had drugs in her system at the
time of her death. [N.T., 2/5/19, at 56]. Even assuming,
arguendo, that Appellant was using drugs shortly before the
murder, and that the amounts in his system were similar to
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those found in the system of [Wife], expert testimony by a
Commonwealth witness established that the level of
intoxicants/drugs in [Wife’s] system was merely “therapeutic.”
[Id. at 56-63.]
Trial Ct. Op. at 3. The court further reasoned:
As per [Clemons], Appellant has failed to meet the standard
that “a voluntary intoxication instruction is justified only when
there is evidence that the defendant was ‘overwhelmed or
overpowered by alcoholic liquor [or drugs] to the point of losing
his . . . faculties or sensibilities.’” It was not established that
Appellant was even using drugs at the time of the murder or
shortly before. The record contains no evidence Appellant was
overwhelmed by drugs to the point of losing his faculties. On
the contrary, his actions and writings after the murder indicate
highly lucid thought. And Appellant’s actions, leading up to the
murder, are highly suggestive of a longstanding plot to kill
[Wife].
Finally, Appellant at trial made an issue of the fact that the
police did not test him for drugs when he was arrested. [N.T.,
2/5/19, at 114]. However . . . Appellant waited twelve to
sixteen hours before reporting he had killed [Wife]. When he
finally did turn himself in, he showed no signs of impairment[.]
Id. at 9.
At trial, Appellant sought to convince the jury that the shooting was
accidental and therefore he should be found not guilty to the murder charge.
Appellant testified, in stark detail, concerning the circumstances of Wife’s
death; he recalled retrieving Wife’s “birthday present” (the gun), his
conversation with Wife, her position on the bed, her reaction to the “gift,”
and the details of how the firearm “accidently” discharged into the back of
Wife’s head. N.T., 2/6/19 afternoon, at 31-34. This testimony and theory of
the case are incompatible with a voluntary intoxication defense, which
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negates the intentional component of a first degree murder conviction.
Appellant’s mere evidence of intoxication does not make out a diminished
capacity defense. See Clemons, 200 A.3d at 465; Spotz, 96 A.2d at 1218.
Crucially missing from Appellant’s trial testimony and his argument on
appeal is evidence of impairment to such a degree that he lost all “faculty
and sensibility” and was completely overwhelmed or overpowered by the
alleged intoxicants. To the contrary, Appellant’s recalled detail belies any
assertion of lost faculty warranting a voluntary intoxication instruction to
first degree murder. Appellant cannot claim both that he accidently fired the
gun while attempting to unload it and that he was so intoxicated he lost
control of his faculties at the time of the shooting. Thus, where Appellant’s
testimony was presented to a jury as the finder of fact, we can hardly take
issue with the jury’s rejection of his claimed “accidental shooting” defense as
a credibility determination, which this Court will not disturb. See Clemons,
200 A.3d at 463.
We find no basis to conclude the trial court abused its discretion by
denying Appellant’s request for a voluntary intoxication or diminished
capacity jury instruction. See Clemons, 200 A.3d at 467. The trial court
provided detailed facts supporting its ruling in its well-reasoned opinion.
The record also reflects that police did not drug test Appellant because
during questioning, he showed no signs of intoxication. See N.T., 2/5/19, at
119.
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Judgment of sentence affirmed.
Judge Pellegrini joins the memorandum.
Judge McLaughlin files a concurring memorandum statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2020
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