Com. v. Saylor, J. ( 2021 )

J-A25033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES MICHAEL SAYLOR :
:
Appellant : No. 2020 MDA 2019
Appeal from the Judgment of Sentence Entered October 30, 2019
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005285-2018
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED MARCH 02, 2021
Appellant, James Michael Saylor, appeals from the judgment of sentence
entered in the York County Court of Common Pleas, following his jury trial
convictions for first-degree murder, harassment, ethnic intimidation,
recklessly endangering another person (“REAP”), and accidents involving
damage to an attended vehicle or property.1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant spent the evening of July 20, 2018, drinking alcohol in his cousin’s
garage and at the Glad Crab Bar and Restaurant. Appellant then visited the
Red Rose Bar and Lounge in the early morning hours of July 21, 2018, where
he continued to drink. While at the Red Rose, Appellant instigated a verbal
____________________________________________
118 Pa.C.S.A. §§ 2502(a), 2709(a)(7), 2710(a), 2705, and 75 Pa.C.S.A. §
3743(a).
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altercation with Jerrell Grandison-Douglas, during which Appellant repeatedly
called Mr. Douglas a racial slur. As a result, Red Rose staff escorted Appellant
out of the bar. Surveillance video from outside of the bar showed Appellant
shooting his gun toward the bar as he walked away from the building. After
talking to Mr. Douglas following his altercation with Appellant, Mr. Douglas’
friend, Victim, also exited the bar. The surveillance footage showed Victim
approaching Appellant’s vehicle in the parking lot. Following a brief interaction
at the driver-side window of the vehicle, Appellant shot and killed Victim.
While attempting to flee from the scene, Appellant struck an Uber driver’s car.
The trial court summarized the relevant procedural history as follows:
[Appellant] was charged with: murder of the first degree
under 18 [Pa.C.S.A.] § 2502(a), harassment under 18
[Pa.C.S.A.] § 2709(a)(7), ethnic intimidation under 18
[Pa.C.S.A.] § 2710(a), [REAP] under 18 [Pa.C.S.A.] § 2705,
accidents involving damage to attended vehicle or property
under 75 [Pa.C.S.A.] § 3743(a), and murder of the third
degree under 18 [Pa.C.S.A.] § 2502(c). …
* * *
Following a jury trial on September 23, 2019, through
September 26, 2019, the jury unanimously convicted
[Appellant] of first-degree murder, harassment, ethnic
intimidation, [REAP], and accidents involving damage to
attended vehicle or property.
On October 30, 2019, a sentencing proceeding was held.
On Count 1, first-degree murder, [Appellant] was sentenced
to life imprisonment in a state correctional institution
without the possibility of parole. On Count 2, harassment,
[Appellant] was sentenced to three to six months’
incarceration in a state correctional institution. On Count 3,
ethnic intimidation, [Appellant] was sentenced to three to
six months’ incarceration in a state correctional institution.
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Counts 2 and 3 run concurrent to one another and
consecutive to Count 1. On Count 4, [REAP], [Appellant]
was sentenced to six to twelve months’ incarceration in a
state correctional institution. Count 4 runs consecutive to
Counts 2 and 3. On Count 5, accidents involving damage to
attended vehicle or property, [Appellant] was sentenced to
twelve months’ probation. Count 5 runs concurrent with
Count 1.
On November 7, 2019, [Appellant] filed a post-sentence
motion…moving for a judgment of acquittal, a new trial or a
modification of sentence. On November 14, 2019, this
Court denied [Appellant]’s post-sentence motion.
* * *
On December 10, 2019, [Appellant]…filed a notice of appeal
to the Superior Court. On the same day…[Appellant] filed a
statement of errors complained of on appeal….
(Trial Court Opinion, filed February 13, 2020, at 2-4).
On appeal, Appellant raises six issues:
Whether the trial court erred in ruling that the evidence was
sufficient to support the mens rea for first-degree murder?
Whether the trial court erred in ruling that the verdict for
first-degree murder was not against the weight of the
evidence?
Whether the trial court erred in not severing the homicide
charges from the ethnic intimidation and other charges,
resulting in prejudice?
Whether the trial court erred in precluding the defense
toxicology expert from testifying about his opinion regarding
[Appellant’s] state of mind at the time of the killing?
Whether the trial court erred in refusing to give Standard
Jury Instruction 9:501A Justification: Use of Force/Deadly
Force in Self-Defense (Castle Doctrine) and other related
justification instructions, where there was sufficient
evidence presented at trial, from whatever source, to permit
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the issue to go to the trier of fact?
Whether the trial court erred in precluding character
evidence from being introduced on [Appellant’s] behalf?
(Appellant’s Brief at 9).
In his first and second issues on appeal, Appellant argues the
Commonwealth failed to present sufficient evidence to prove Appellant had
the necessary mens rea to commit first-degree murder, where the surveillance
video from the bar revealed evidence to support a “justification defense under
the castle doctrine.” (Appellant’s Brief at 17). Appellant maintains the court
mistakenly found that “[Appellant] did a very calculated and deliberate move
of his vehicle when he moved out of the parking spot to approach and kill
[Victim].” (Id. at 16). Appellant claims that, in so finding, the court ignored
video proof that it was Victim who took multiple steps toward Appellant’s
driver-side door and remained there for several seconds before the shooting.
Given the events portrayed in the video footage, coupled with the court’s
refusal to instruct the jury on a justification defense, Appellant asserts the
evidence was insufficient to support the jury’s verdict as to the mens rea
element of first-degree murder.
Appellant also states the evidence was insufficient to prove he had the
specific intent to kill Victim where undisputed evidence showed he had
consumed copious amounts of alcohol prior to the shooting. Appellant
stresses that the court emphasized the testimony of some witnesses,
particularly the Red Rose employees responsible for serving the excessive
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amount of alcohol to Appellant, over other witnesses who testified that
Appellant had several angry outbursts throughout the evening. Appellant
claims the court also emphasized that Appellant had no issues operating a
vehicle, even though Appellant struck the Uber vehicle twice while attempting
to exit the parking lot. For reasons similar to his sufficiency argument,
Appellant also maintains the jury’s verdict was against the weight of the
evidence. Appellant concludes this Court should vacate the judgment of
sentence or remand for a new trial. We disagree.
Preliminarily, as a general rule, issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived for appellate review. Commonwealth v.
Castillo, 585 Pa. 395, 888 A.2d 775 (2005). A Rule 1925(b) statement that
is not specific enough for the trial court to identify and address the issues the
defendant wishes to raise on appeal may also result in waiver.
Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied,
591 Pa. 712, 919 A.2d 956 (2007).
When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When
an appellant fails adequately to identify in a concise manner
the issues sought to be pursued on appeal, the trial court is
impeded in its preparation of a legal analysis which is
pertinent to those issues. In other words, a Concise
Statement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no
Concise Statement at all.
Id. at 2.
Additionally, “when challenging the sufficiency of the evidence on
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appeal, [an appellant’s Rule 1925(b)] statement must specify the element or
elements upon which the evidence was insufficient in order to preserve the
issue for appeal.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super.
2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010). “Such specificity is of
particular importance in cases where [an appellant] was convicted of multiple
crimes each of which contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.” Id.
Instantly, Appellant failed to raise his weight and sufficiency of the
evidence claims with any specificity in his Rule 1925(b) statement. Appellant’s
statement merely states: (1) “Did the Trial Court err in ruling that the
evidence was sufficient to support the verdicts?” and (2) “Did the Trial Court
err in ruling that the verdicts were not against the weight of the evidence?”
(Appellant’s Rule 1925(b) statement at 1, unpaginated). The Rule 1925(b)
statement did not identify which convictions Appellant sought to challenge,
which elements of those convictions the Commonwealth failed to prove, or
why the verdicts shocked one’s sense of justice. Thus, Appellant’s challenges
to the weight and sufficiency of the evidence are waived for purposes of our
review. See Gibbs, supra; Reeves, supra. See also Commonwealth v.
Seibert, 799 A.2d 54, 62 (Pa.Super. 2002) (stating appellant’s weight of
evidence claim was waived where he merely asserted in his Rule 1925(b)
statement that “[t]he verdict of the jury was against the weight of the credible
evidence as to all of the charges”).
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In his third issue, Appellant argues he made an oral motion during a
pretrial conference on April 23, 2019, to sever the ethnic intimidation and
harassment charges from the homicide charges. Appellant asserts the
evidence established no link between what occurred inside the Red Rose and
Victim’s shooting in the parking lot. Appellant avers that by permitting these
offenses to be tried together, he was denied the opportunity to present
character testimony that would have been admissible in a trial for the lesser
charges but was ruled inadmissible for the homicide charges. Appellant
concludes the court erred in refusing to sever the charges, and this Court
should grant appropriate relief. We disagree.
Our standard of review of the denial of a motion to sever is as follows:
“Joinder and severance of separate indictments for trial is a discretionary
function of the trial court; consequently, the trial court’s decision is subject to
review for abuse of that discretion.” Commonwealth v. Brookins, 10 A.3d
1251, 1255 (Pa.Super. 2010), appeal denied, 610 Pa. 625, 22 A.3d 1033
(2011).
The traditional justification for permissible joinder of
offenses or consolidation of indictments appears to be the
judicial economy which results from a single trial. The
argument against joinder or consolidation is that where a
defendant is tried at one trial for several offenses, several
kinds of prejudice may occur: (1) [t]he defendant may be
confounded in presenting defenses, as where his defense to
one charge is inconsistent with his defenses to the others;
(2) the jury may use the evidence of one of the offenses to
infer a criminal disposition and on the basis of that
inference, convict the defendant of the other offenses; and
(3) the jury may cumulate the evidence of the various
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offenses to find guilt when, if the evidence of each offense
had been considered separately, it would not so find.
Commonwealth v. Janda, 14 A.3d 147, 155 (Pa.Super. 2011) (quoting
Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981)).
“Thus[,] in arriving at a meaningful standard to guide the trial court in its
exercise of discretion, and to permit appellate courts to determine whether
the trial court abused this discretion, we must weigh the possibility of
prejudice and injustice caused by the consolidation against the consideration
of judicial economy.” Id.
Pennsylvania Rule of Criminal Procedure 582 provides, in pertinent part:
Rule 582. Joinder—Trial of Separate Indictments or
Informations
(A) Standards
(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is capable
of separation by the jury so that there is no danger of
confusion; or
(b) the offenses charged are based on the same act
or transaction.
Pa.R.Crim.P. 582(A)(1). Pennsylvania Rule of Criminal Procedure 583
provides:
Rule 583. Severance of Offenses or Defendants
The court may order separate trials of offenses or
defendants, or provide other appropriate relief, if it appears
that any party may be prejudiced by offenses or defendants
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being tried together.
Pa.R.Crim.P. 583. “Under Rule 583, the prejudice the defendant suffers due
to the joinder must be greater than the general prejudice any defendant
suffers when the Commonwealth’s evidence links him to a crime.”
Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super. 2010), appeal
denied, 607 Pa. 709, 5 A.3d 818 (2010).
The prejudice of which Rule 583 speaks is, rather, that
which would occur if the evidence tended to convict the
appellant only by showing his propensity to commit crimes,
or because the jury was incapable of separating the
evidence or could not avoid cumulating the evidence.
Additionally, the admission of relevant evidence connecting
a defendant to the crimes charged is a natural consequence
of a criminal trial, and it is not grounds for severance by
itself.
Id. (quoting Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa.Super. 2003),
appeal denied, 574 Pa. 752, 830 A.2d 975 (2003)).
Where the defendant moves to sever offenses not based on
the same act or transaction…the court must therefore
determine: (1) whether the evidence of each of the offenses
would be admissible in a separate trial for the other; (2)
whether such evidence is capable of separation by the jury
so as to avoid danger of confusion; and, if the answers to
these inquiries are in the affirmative, (3) whether the
defendant will be unduly prejudiced by the consolidation of
offenses.
Dozzo, supra at 902 (quoting Commonwealth v. Collins, 550 Pa. 46, 55,
703 A.2d 418, 422 (1997), cert. denied, 525 U.S. 1015, 119 S. Ct. 538, 142
L. Ed. 2d 447 (1998)). Thus, a court must first determine whether evidence of
each of the offenses would be admissible in a separate trial for the other.
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Dozzo, supra. Evidence of other crimes is not admissible solely to show the
defendant’s bad character or propensity to commit crimes. Id.
Nevertheless, evidence of other crimes is admissible to demonstrate:
(1) motive; (2) intent; (3) absence of mistake or accident;
(4) a common scheme, plan or design embracing the
commission of two or more crimes so related to each other
that proof of one tends to prove the others; or (5) to
establish the identity of the person charged with the
commission of the crime on trial, in other words, where
there is such a logical connection between the crimes that
proof of one will naturally tend to show that the accused is
the person who committed the other.
Janda, supra at 156 (quoting Morris, supra at 175, 425 A.2d at 720).
“Additionally, evidence of other crimes may be admitted where such evidence
is part of the history of the case and forms part of the natural development of
the facts.” Dozzo, supra at 902 (quoting Collins, supra at 55, 703 A.2d at
423).
Pennsylvania Rule of Criminal Procedure 578 also provides in relevant
part:
Rule 578. Omnibus Pretrial Motion for Relief
Unless otherwise required in the interests of justice, all
pretrial requests for relief shall be included in one omnibus
motion.
Comment: Types of relief appropriate for the omnibus
pretrial motions include the following requests:
* * *
(2) for severance and joinder or consolidation;
* * *
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Pa.R.Crim.P. 578. Failure to include an issue in a pretrial motion may result
in waiver of the claim. See Pa.R.Crim.P. 583, Comment (stating: “Under Rule
578 (Omnibus Pretrial Motion for Relief), any request for severance must
ordinarily be made in the omnibus pretrial motion or it is considered waived
unless a later filing is permitted under the exceptions enumerated in Rule
579”).
Instantly, Appellant’s formal arraignment occurred on October 5, 2018.
Therefore, the window during which Appellant could file a pretrial motion
expired on November 4, 2018. See Pa.R.Crim.P. 579 (explaining defendant
typically has 30 days after formal arraignment to file pretrial motions).
Nevertheless, during a pretrial conference on April 23, 2019, Appellant made
an oral motion to sever the ethnic intimidation and harassment charges from
the homicide charges. As Appellant failed to include this request in a timely
omnibus pretrial motion, it is arguably waived. See Pa.R.Crim.P. 578;
Pa.R.Crim.P. 583.
Moreover, even if Appellant had properly raised this claim, his argument
would fail. Here, Appellant’s actions inside and outside of the Red Rose would
constitute admissible evidence in each case if the court had conducted
separate trials, where the crimes demonstrate a sequence of events that
formed the history and natural development of the case. See Pa.R.Crim.P.
582; Dozzo, supra. Additionally, as each crime involved different victims, it
would not have been difficult for a jury to distinguish between the charges.
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Thus, Appellant failed to show how he would suffer the requisite prejudice by
trying the charges together, and the court did not abuse its discretion in
denying Appellant’s severance motion. See Brookins, supra; Dozzo,
supra.
In his fourth issue, Appellant argues the court erred in precluding the
defense toxicology expert from testifying to Appellant’s state of mind at the
time of the shooting. Specifically, Appellant contends Dr. Lawrence Guzzardi
was prohibited from opining that, due to Appellant’s level of intoxication,
Appellant was unable to premeditate the killing. Appellant attacks the court’s
conclusion that any opinion Dr. Guzzardi gave on Appellant’s state of mind
would have been mere conjecture because Appellant told Dr. Guzzardi he
could not remember the incident. Rather, Appellant claims Dr. Guzzardi
formulated his report after also reviewing the relevant discovery and
numerous witness statements, and maintains this information was sufficient
for Dr. Guzzardi to form an opinion as to Appellant’s level of intoxication on
the night of Victim’s shooting. Appellant asserts that the preclusion of this
testimony was prejudicial, as its exclusion was critical to the jury finding that
Appellant acted with the specific intent to kill. Appellant concludes this Court
should vacate the judgment of sentence and remand for a new trial. We
disagree.
“Our standard of review in cases involving the admission of expert
testimony is broad: Generally speaking, the admission of expert testimony is
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a matter left largely to the discretion of the trial court, and its rulings thereon
will not be reversed absent an abuse of discretion.” Commonwealth v.
Watson, 945 A.2d 174, 176 (Pa.Super. 2008) (internal citation and quotation
marks omitted). “An expert’s testimony is admissible when it is based on facts
of record and will not cause confusion or prejudice.” Id.
Pennsylvania Rule of Evidence 702 governs the admission of expert
testimony and provides:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702. Furthermore, “[a]n expert may base an opinion on facts or data
in the case that the expert has been made aware of or personally observed.”
Pa.R.E. 703.
Nevertheless,
While an expert’s opinion need not be based on an absolute
certainty, an opinion based on mere possibilities is not
competent evidence. This means that expert testimony
cannot be based solely upon conjecture or surmise. Rather,
an expert’s assumptions must be based upon such facts as
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the jury would be warranted in finding from the evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa.Super. 2015), appeal
denied, 633 Pa. 763, 125 A.3d 1198 (2015) (internal citation omitted).
Instantly, the court expressed its concerns regarding Dr. Guzzardi’s
expert report prior to the doctor’s testimony and outside of the jury’s
presence. Specifically, the court took issue with Dr. Guzzardi asserting that
the odor of alcohol on Appellant’s breath eight hours after the incident at the
Red Rose indicated a blood alcohol content of 0.16, without having laid any
foundation to establish its scientific certainty. The court also expressed its
concern that Dr. Guzzardi had nothing to base the opinions in his report upon
where Appellant claimed to have no memory of the incident. During this
conversation, the court prohibited Dr. Guzzardi from using the term
“premeditation,” and defense counsel agreed to this restriction as follows:
The Court: …So, I have looked at the report and I have some
concerns, quite frankly, about the report in a number of
different aspects. …
But [Dr. Guzzardi] makes some statement in this report that
he hasn’t indicated anywhere therein what, to be polite
here, what the basis of those statements are.
I mean, we are not going to get into a situation where I can
look at somebody and tell them what their blood alcohol
content is. That is not coming into the record. Or I can
smell somebody’s breath and say what their blood alcohol
content is? No.
[Defense Counsel]: I don’t know if Dr. Guzzardi quite said it
like that.
The Court: Pretty much he did. Page 3. He wasn’t present
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even to smell it, but now he is saying [Appellant] had an
odor of alcohol on his breath 8 hours after his incident
indicating a level of .16.
[Defense Counsel]: He reviewed all the[…]
The Court: What?
[Defense Counsel]: Reports. I’ll instruct him not to talk
about that.
The Court: I don’t care how many reports he has looked at
that describe in various different ways whether [Appellant]
was intoxicated or not, you cannot make a statement just
because someone has alcohol on their breath 8 hours later
that their BAC is .16 with any degree of scientific certainty.
[Defense Counsel]: Quite frankly, Your Honor, I mean, he is
an expert in this field. I think he could back that up with
justification.
The Court: Well, you have to lay a whole lot of foundation
that’s not anywhere in this report. …
* * *
The Court: He is not going to use the word premeditation.
[Defense Counsel]: Understood. I don’t think the rest of it
is an issue.
* * *
[Defense Counsel]: And stay away from the premeditation
on the very last page.
[The Commonwealth]: Premeditation is also mentioned in
the first paragraph of Page 3. He did not understand the
nature of his actions nor did he deliberate and with
understanding—
The Court: And I was wondering where that even came
from. Like, whose opinion is stated in that. Is he stating of
[Appellant]…or is he speaking of a professional opinion
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because it doesn’t really say.
[Defense Counsel]: I believe it is from the professional
opinion, Your Honor. But I can instruct him to stay away
from that as well.
The Court: Again, he cannot state it the way he is stating it.
[Defense Counsel]: I understand.
The Court: The understanding of the nature of his actions in
a jury determination.
[Defense Counsel]: Understood, Your Honor, and I’m just
marking this.
The Court: Especially when we go down 4 paragraphs, the
last sentence. [Appellant] just doesn’t remember the
incident. So, where is [Dr. Guzzardi] getting the basis for
all of these opinions?
[Defense Counsel]: Well, it is in all the reports, Your Honor.
That from the police that he didn’t remember the incident.
He has reviewed—he has reviewed the CDs of the interviews
with police officers and my client and he also spoke to my
client at the prison. That one there my client does not
remember anything. He told the police that and he told—
The Court: So, if your client doesn’t remember anything,
how is the doctor saying what he was thinking or wasn’t
thinking?
[Defense Counsel]: I think Dr. Guzzardi is just saying he is
repeating what he has observed and reviewing for this case,
Your Honor, that he doesn’t remember what was said or
done that night. Again, I’m sorry, which paragraph are you
looking at?
The Court: The fourth paragraph of that same page, after
we talk[ed] about—or right before we talk about blood
alcohol based on smell alone, he says, [Appellant] just
doesn’t remember the incident. So, if that’s his opinion or
that’s what he has gleaned from reading all of these reports,
how is he even drafting an opinion[?]
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[Defense Counsel]: What do you mean? I don’t understand
that.
The Court: What is he basing his opinion on?
[Defense Counsel]: What was said in the reports and what
my client said to him. I would lay the foundation.
The Court: How can you say what your client said to him if
your client doesn’t remember anything?
[Defense Counsel]: That is what my client said to him. He
doesn’t remember anything. The same thing he told
everyone else. … It is just that he had a conversation with
my client, that’s what my client told him, and that’s what
the police reports say over and over again. …
(N.T. Trial, 9/25/19, at 589-594).
Here, defense counsel agreed to prohibit Dr. Guzzardi from utilizing the
word “premeditation” in his testimony. Appellant cannot now base his appeal
upon something to which his counsel agreed. Furthermore, we concur with
the court’s concerns regarding Dr. Guzzardi’s ability to testify about
Appellant’s state of mind at the time of Victim’s shooting, where Appellant
claims to have no memory of the incident. Without Appellant’s input regarding
his thoughts and actions on the night of Victim’s shooting, Dr. Guzzardi’s
opinion as to those events constitutes pure conjecture. See Gonzalez,
supra. Thus, this claim fails.
In his fifth issue, Appellant argues the court erred in denying his request
to instruct the jury on a justification defense under the castle doctrine.
Appellant claims the court determined it would not instruct the jury on
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justification because Appellant had no recollection of the events leading up to
Victim’s murder. Appellant, however, contends the court ignores the “express
language of the castle doctrine that creates a presumption in favor of
[Appellant] where…he was approached by an unknown individual while in his
vehicle.” (Appellant’s Brief at 27). Appellant maintains that the surveillance
video provided sufficient evidence to have permitted the issue of justification
to go to the jury, as it shows Victim approaching Appellant’s driver-side door
as Appellant attempted to exit the parking lot and remaining there for several
seconds before the shooting occurred. Appellant asserts the video does not
comport with the testimony of the Uber driver, upon which the trial court
heavily relied, that Victim took a half step toward Appellant’s vehicle and was
immediately shot. Appellant avers the court’s refusal to issue the requested
jury instruction was prejudicial as it could have provided a complete defense
to the homicide charge. Appellant concludes this Court should vacate the
judgment of sentence and remand for a new trial. We disagree.
“[T]o preserve a claim that a jury instruction was erroneously given, the
[a]ppellant must have objected to the charge at trial.” Commonwealth v.
Parker, 104 A.3d 17, 29 (Pa.Super. 2014), appeal denied, 632 Pa. 669, 117
A.3d 296 (2015). Our Supreme Court has explained:
The pertinent rules [of criminal procedure] require a specific
objection to the [jury] charge or an exception to the trial
court’s ruling on a proposed point to preserve an issue
involving a jury instruction. Although obligating counsel to
take this additional step where a specific point for charge
has been rejected may appear counterintuitive, as the
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requested instruction can be viewed as alerting the trial
court to a defendant’s substantive legal position, it serves
the salutary purpose of affording the court an opportunity
to avoid or remediate potential error, thereby eliminating
the need for appellate review of an otherwise correctable
issue. This is particularly so where a judge believes that the
charge adequately covered the proposed points.
Commonwealth v. Pressley, 584 Pa. 624, 630-31, 887 A.2d 220, 224
(2005) (internal citations and footnotes omitted). See also Pa.R.Crim.P.
647(c) (explaining that no portions of jury charge nor omissions from charge
may be assigned error, unless specific objections are made thereto before jury
retires to deliberate); Commonwealth v. Cosby, 224 A.3d 372 (Pa.Super.
2019), appeal granted in part on other grounds, ___ Pa. ___, 236 A.3d 1045
(2020) (holding appellant waived challenge to court’s consciousness-of-guilt
jury instruction because he did not object when charge was given to jury;
appellant’s objections at charging conference were insufficient to preserve his
challenge on appeal); Parker, supra (holding appellant waived challenge to
jury instruction where he failed to object after court read jury charge;
although appellant expressly objected to flight charge at charging conference,
defense counsel responded negatively when court asked if any additions or
corrections to jury charge needed to be made after court issued jury
instructions).
Instantly, Appellant asked the court to issue a jury instruction for “the
justification use of force…as self-defense.” (N.T. Trial, 9/25/19, at 713). The
Commonwealth objected to Appellant’s request. Ultimately, the court decided
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the jury instruction was unwarranted based on the evidence presented.
Significantly, after the court issued its jury charge, Appellant did not lodge an
objection to the court’s omission of the justification/self-defense jury
instruction. The court expressly asked counsel if there were any exceptions
to the jury charges, and defense counsel responded: “No, Your Honor.” (Id.
at 884). Under these circumstances, Appellant did not preserve his claim of
error for appellate review. See Pa.R.Crim.P. 647(c); Cosby, supra; Parker,
supra. Consequently, Appellant’s fifth issue on appeal is waived.
In his sixth issue, Appellant argues the court erred in prohibiting
character evidence from being introduced on Appellant’s behalf. Appellant
contends the court excluded character evidence based upon Commonwealth
v. Kim, 888 A.2d 847 (Pa.Super. 2005), appeal denied, 587 Pa. 721, 899 A.2d
1122 (2006), which held that character evidence is not admissible to support
a diminished capacity defense. Appellant avers he was not solely arguing a
voluntary intoxication defense, as he also requested (but the court denied) a
justification instruction under the castle doctrine. Appellant maintains
character evidence would have been admissible regarding a claim of self-
defense, and Appellant’s inability to present evidence concerning his
reputation for peacefulness and non-violence was prejudicial. Appellant
further asserts that he was charged with multiple crimes unrelated to Victim’s
shooting, including harassment, ethnic intimidation, REAP, and accidents
involving damage to an attended vehicle. Appellant submits that character
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evidence was “paramount” to the jury’s consideration of these other offenses.
Appellant concludes this Court should vacate the judgment of sentence and
remand for a new trial. We disagree.
“The admissibility of evidence is at the discretion of the trial court and
only a showing of an abuse of that discretion, and resulting prejudice,
constitutes reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-
98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S. Ct. 2842, 189
L. Ed. 2d 824 (2014).
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused when the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill will.
Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal
denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81
(Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).
As this Court has previously explained:
…Pennsylvania law is clear that while character evidence is
admissible to prove that a defendant did not commit the
charged crime, it is inadmissible where the issue is whether
the defendant had a specific intent to kill or did not have
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that intent due to diminished capacity. In this regard, the
diminished capacity defense concedes criminal liability for
murder but asserts that appellant lacked the capacity to
form the specific intent to kill. Therefore, good character
evidence [is] not admissible to support a diminished
capacity defense.
Kim, supra at 853 (internal citations and quotation marks omitted) (citing
Commonwealth v. Gwynn, 555 Pa. 86, 103, 723 A.2d 143, 151 (1998),
cert. denied, 528 U.S. 969, 120 S. Ct. 410, 145 L. Ed. 2d 320 (1999)).
Significantly, diminished capacity defenses include voluntary intoxication.
See Commonwealth v. Mason, 634 Pa. 359, 408, 130 A.3d 601, 630 (2015)
(stating: “To establish a diminished capacity defense, a defendant must prove
that his cognitive abilities of deliberation and premeditation were so
compromised, by mental defect or voluntary intoxication, that he was unable
to formulate the specific intent to kill”).
In applying Kim to the instant facts, the trial court reasoned as follows:
Similar to Kim, [Appellant] was charged with the first-
degree murder, as well as other lesser crimes. Like Kim,
[Appellant] pursued a defense of voluntary intoxication and
diminished capacity. [Appellant] tried to argue that because
he was so intoxicated, he did not have the required mental
state to commit all the crimes charged against him,
although he did kill [Victim].
The record reveals that, during the course of [the trial
court]’s discussions about whether the character evidence
as to [Appellant]’s peacefulness should be allowed,
[Appellant] did not convince this [c]ourt that character
evidence would be proper and cited to no authorities to
support his argument.
(Trial Court Opinion at 31-32). We agree with the trial court’s analysis. Here,
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the trial court properly determined that Appellant’s proffered character
evidence was inadmissible under Kim, where Appellant conceded that he shot
and killed Victim but claimed a diminished capacity/voluntary intoxication
defense. Furthermore, defense counsel failed to present any argument or
supporting authority to the contrary. Therefore, we see no reason to disrupt
the court’s evidentiary ruling. See Goldman, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/02/2021
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