Com. v. Jones, C.

J-A25035-21
2021 PA Super 250COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL JONES :
:
Appellant : No. 938 WDA 2020
Appeal from the Judgment of Sentence Entered January 23, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013282-2018
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED: December 16, 2021
Appellant, Carl Jones, appeals from the judgment of sentence imposed
after his conviction of third-degree murder1 at a bench trial. After careful
review, we affirm.
This case arises out of Appellant’s fatal shooting of another patron
(Victim) at the 1313 Bar in Duquesne, Pennsylvania on the night of August 12
and 13, 2018. Appellant was charged with criminal homicide, possession of a
firearm by a person prohibited, and carrying a firearm without a license. The
possession of a firearm by a person prohibited charge was severed and
charged under a different docket number. Appellant waived his right to a jury
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2502(c).
J-A25035-21
trial and all of the charges in both dockets were tried at a bench trial on
October 28, 2019.
It was undisputed at trial that Appellant shot and killed Victim and the
critical issues were Appellant’s state of mind and whether he acted in self-
defense or in an unreasonable belief that his life was in danger. The
Commonwealth called as witnesses four detectives and a forensic investigator
who investigated the scene of the shooting and the bartender and Victim’s
brother, both of whom were present when the shooting occurred. The
Commonwealth also played video from the bar’s surveillance system that
showed the shooting and the events before and after the shooting. N.T. Trial
at 58-61, 67-68. Appellant’s counsel stipulated that the surveillance video
was authentic and depicted the events that happened at the 1313 Bar on the
night of the shooting, did not object to the playing of the video, and cross-
examined the detective who had retrieved the video concerning what the video
showed. Id. at 52-69, 154. The Commonwealth did not move for admission
of the video, but the trial court, the Commonwealth, and Appellant all treated
the video as admitted evidence after the Commonwealth rested. Id. at 111,
154-59, 164, 169, 173-75, 177.
Appellant testified in his own defense and called as a witness the woman
who was with him at the bar, a person that Appellant called his aunt.
Appellant’s counsel played portions of the video in his examination of that
witness and in his closing argument and argued in his closing argument that
-2-
J-A25035-21
the video showed that Appellant acted in self-defense. N.T. Trial at 119-22,
155-57, 164.
The trial court found Appellant not guilty of first-degree murder, but
found him guilty of third-degree murder and both firearms offenses. N.T. Trial
at 176-79. In rejecting Appellant’s claim of self-defense, the trial court
considered and relied on the video that was played at trial. Id. at 177-79;
Trial Court Opinion at 2-3, 7-10. On January 23, 2020, the trial court
sentenced Appellant to 20 to 40 years’ imprisonment on the third-degree
murder conviction and imposed no further penalty for the carrying a firearm
without a license conviction. N.T. Sentencing at 36-37; Sentencing Order. In
the separate docket, the trial court imposed a consecutive sentence of 31/2 to
7 years for possession of a firearm by a person prohibited. N.T. Sentencing
at 36.
Appellant filed a timely post-sentence motion seeking to vacate his
third-degree murder conviction on the grounds that the evidence was
insufficient to disprove self-defense and seeking a new sentencing hearing. In
that post-sentence motion, Appellant again asserted that the video was
evidence before the trial court that could be considered in ruling on the
sufficiency of the evidence and noted, without objection, that the trial court
relied on the video in reaching its verdict. Post-Sentence Motion at 3, 5-8.
On August 24, 2020, the trial court denied Appellant’s post-sentence motion.
-3-
J-A25035-21
Appellant timely appealed the judgment of sentence in the third-degree
murder case. In this appeal, Appellant argues that the evidence was
insufficient to support his third-degree murder conviction and that this Court
cannot consider the video recording of the shooting in determining whether
the evidence was sufficient because the video was not admitted in evidence.
We first address whether the surveillance video played at trial
constitutes evidence that this Court may consider in ruling on Appellant’s
sufficiency of the evidence claim.2 Appellant argues the video is not part of
the evidentiary record in this appeal because no formal motion was made at
trial to admit the video and the trial court did not formally admit it into
evidence. We do not agree.
Appellant is correct that exhibits that are merely marked for
identification and submitted by the offering party do not constitute evidence
on which a finder of fact can rely. See Department of Transportation,
Bureau of Driver Licensing v. Doyle, 616 A.2d 201, 202 n.4 (Pa. Cmwlth.
1992); Denver Nursing Home v. Department of Public Welfare, 552 A.2d
1160, 1161-63 (Pa. Cmwlth. 1989). Those cases, however, do not hold that
____________________________________________
2 There is no issue of incompleteness of the record or inability of this Court to
view the surveillance video that was played at trial. A disc containing the
video was supplied to this Court as a supplemental record pursuant to a
stipulation of the parties that it contains the video played at trial. Limited
Joint Stipulation ¶¶2-3. This stipulation further states that the parties agree
that the video was not formally admitted into evidence at trial and that
Appellant does not waive his contention that the video cannot be considered
in ruling on the sufficiency of the evidence. Id. ¶¶3-4, 6.
-4-
J-A25035-21
a recording that was played to the finder of fact after the trial court determined
that the requirements for admission were met is not in evidence simply
because no formal motion was made and granted.
Here, the video was not merely marked for identification, it was played
to the trial court, the finder of fact, for its consideration as evidence after the
trial court confirmed that Appellant’s counsel stipulated to the video’s
authenticity and relevance. N.T. Trial at 52-53, 58-61. Before the trial court
permitted the Commonwealth to play the video, the following colloquy
occurred:
MR. ZURISKO [Commonwealth’s Attorney]: Your Honor, at this
time there is a stipulation to the authenticity of the contents of
this disc, that it contains the events that happened at the 1313
Bar on August 12th and the 13th of 2018.
THE COURT: Do you so stipulate, Mr. Attisano?
MR. ATTISANO [Appellant’s Counsel]: Yes, Your Honor.
THE COURT: We’ll accept that stipulation. Are you going to play
that?
MR. ZURISKO: Yes, Your Honor.
Id. at 52. Under these circumstances, where the trial court, in fact, made a
determination that the video was admissible before it was played, the video
was in evidence and became part of the record once it was played without
objection, even though no formal motion to admit it in evidence was made.
Although it appears that there is no Pennsylvania precedent addressing this
-5-
J-A25035-21
situation,3 courts in other jurisdictions have recognized that when a recording
is played to the fact finder for its consideration, the recording is admitted in
evidence and becomes part of the record even if no formal motion is made for
its admission. Cull v. Commonwealth, 2000 WL 311169 at *3 (Va. App.
Mar. 28, 2000) (holding that “[i]rrespective of any characterization made by
the trial judge, the contents of the tape were admitted into evidence when the
jury viewed it”); Kennebrew v. State, 480 S.E.2d 1, 4 (Ga. 1996) (defendant
admitted evidence where he played tape recording even though he did not
move the recording into evidence).
Moreover, Appellant is barred by waiver from contending that the video
cannot be considered. Where a party does not object to the trial court’s
consideration of items not formally admitted into evidence despite notice that
the trial court viewed the items as evidence on which it could make findings,
the objection to consideration of the unadmitted items is waived. Green v.
Green, 69 A.3d 282, 286-88 (Pa. Super. 2013). In this case, Appellant not
only failed to object that the video was not admitted and failed to object to
____________________________________________
3 Commonwealth v. Graham, No. 1742 EDA 2018 (Pa. Super. Feb 11, 2019)
(unpublished memorandum), cited by the Commonwealth, is on point and
would support our conclusion that we may consider the video, but it was
decided before May 2, 2019, and therefore cannot be relied upon, even for its
persuasive value. Pa.R.A.P. 126(b); 210 Pa. Code § 65.37(B). The other
cases cited concerning video evidence that was played but not formally
admitted, Commonwealth v. Wroten, 257 A.3d 734 (Pa. Super. 2021) and
Commonwealth v. Fretts, 2443 EDA 2019 (Pa. Super. August 14, 2020)
(unpublished memorandum), involved pretrial hearings on the sufficiency of
the Commonwealth’s prima facie case, not a trial.
-6-
J-A25035-21
the trial court’s consideration of it before the trial court’s verdict, he stipulated
to the video’s admissibility and used it in his case and in argument after the
Commonwealth had rested. N.T. Trial at 52, 119-22, 155-57, 164. At no time
during trial, or even in his post sentence motion, did Appellant ever contend
that the video was not part of the evidence before the trial court.
Appellant did raise the issue that the video was not admitted in evidence
in his Pa.R.A.P. 1925(b) statement after this appeal was filed. Appellant’s
Concise Statement of Errors ¶¶2, 17(I), (II). That, however, does not change
the fact that the issue was waived.4 Raising an issue for the first time in a
Rule 1925(b) statement is insufficient to prevent waiver of an issue that the
appellant failed to raise while the case was pending in the trial court. Steiner
v. Markel, 968 A.2d 1253, 1257 (Pa. 2009); Commonwealth v. Smith, 213
A.3d 307, 309 (Pa. Super. 2019); Commonwealth v. Rodriguez, 174 A.3d
1130, 1145-46 & nn.6 & 8 (Pa. Super. 2017).
Because this Court may properly consider the video, we include it the
evidence that we review in evaluating Appellant’s sufficiency of the evidence
challenge. Our standard of review on this issue is well-settled:
____________________________________________
4 Indeed, Appellant’s failure to object at trial to the failure to formally admit
the video deprived the trial court of the opportunity to cure the defect.
Because this was a bench trial, the trial court could have reopened the record
after the Commonwealth had rested to permit the Commonwealth to formally
move the video into evidence if Appellant had raised the issue before the
verdict. Commonwealth v. Safka, 141 A.3d 1239, 1240-41, 1249-51 (Pa.
2016).
-7-
J-A25035-21
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. … Finally, the finder of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017) (quoting
Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014)).
To establish the offense of third-degree murder, the Commonwealth
must prove the killing of an individual with malice. Commonwealth v. Knox,
219 A.3d 186, 195 (Pa. Super. 2019); Commonwealth v. Marquez, 980
A.2d 145, 148 (Pa. Super. 2009) (en banc). Appellant argues that the
evidence was insufficient to prove third-degree murder on two grounds: 1)
that the Commonwealth failed to prove malice and 2) that the Commonwealth
failed to disprove that Appellant acted in self-defense or imperfect self-
defense.
Malice includes not only particular ill will toward the victim, but also
wickedness of disposition, hardness of heart, wantonness, and cruelty,
recklessness of consequences, and conscious disregard by the defendant of
an unjustified and extremely high risk that his actions may cause serious
-8-
J-A25035-21
bodily harm. Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981);
Commonwealth v. Patterson, 180 A.3d 1217, 1230 (Pa. Super. 2018);
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011).
Self-defense is a complete defense to a homicide charge if 1) the
defendant reasonably believed that he was in imminent danger of death or
serious bodily injury and that it was necessary to use deadly to prevent such
harm; 2) the defendant did not provoke the threat that resulted in the slaying;
and 3) the defendant did not violate a duty to retreat. 18 Pa.C.S. § 505(b)(2);
Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012);
Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012); Knox, 219 A.3d
at 196. Where the defendant has introduced evidence of self-defense, the
burden is on the Commonwealth to disprove the self-defense claim beyond a
reasonable doubt by proving that at least one of those three elements is
absent. Sepulveda, 55 A.3d at 1124; Knox, 219 A.3d at 196; Patterson,
180 A.3d at 1231. If the Commonwealth proves that the defendant’s belief
that deadly force was necessary was unreasonable but does not disprove that
that the defendant genuinely believed that he was in imminent danger that
required deadly force and does not disprove either of the other elements of
self-defense, the defendant may be found guilty only of voluntary
manslaughter under the defense of imperfect self-defense. 18 Pa.C.S. §
2503(b); Sepulveda, 55 A.3d at 1124; Commonwealth v. Truong, 36 A.3d
592, 599 (Pa. Super. 2012) (en banc).
-9-
J-A25035-21
The finder of fact is not required to believe the defendant’s testimony
that he thought that he was in imminent danger and acted in self-defense.
Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011);
Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990);
Commonwealth v. Chine, 40 A.3d 1239, 1243 (Pa. Super. 2012). Disbelief
of the defendant’s testimony, however, is not sufficient to satisfy the
Commonwealth’s burden to disprove self-defense absent some evidence
negating self-defense. Commonwealth v. Torres, 766 A.2d 342, 345 (Pa.
2001); Commonwealth v. Ward, 188 A.3d 1301, 1304 (Pa. Super. 2018).
The evidence at trial concerning the shooting and the events leading up
to the shooting was as follows.
The bartender testified that Appellant was at the bar with a woman and
got into an argument with another patron, that Victim and his brother then
began arguing with Appellant, and that Victim approached Appellant in a
threatening manner and threatened Appellant. N.T. Trial at 26-27, 34-36.
The bartender testified that Appellant then walked away and started to leave
the bar, but that he came back into the bar at the urging of the woman he
was with, that he and Victim got into an argument, and that “the next thing I
know, I heard gunshots.” Id. at 27-28, 36-39. She testified that she saw
Victim reach into his back pocket, but could not recall whether Victim
approached Appellant when he came back into the bar. Id. at 38. She
testified that the gun shots occurred immediately after she saw Victim reach
- 10 -
J-A25035-21
into his back pocket. Id. at 39, 41. The bartender also testified that the 1313
Bar is a dangerous bar and that everyone there carries a gun. Id. at 29, 32-
33, 39. She testified, however, that she did not see any gun on Victim the
night that he was killed and hadn’t ever seen him with a gun. Id. at 33, 43.
Victim’s brother testified that after an argument in the bar, Appellant
walked out of the bar and that Victim said "oh, man, go ahead." N.T. Trial at
73-74. Victim’s brother testified that Appellant then came back in and shot
Victim. Id. at 74-75, 84. The only items found on Victim were a cell phone,
a wallet, and keys. Id. at 104.
The woman who was with Appellant at the bar testified that Appellant
was involved in an argument with a person unconnected to Victim and that
Victim told Appellant to leave that person alone or “I'll beat the fuck out of
you, dumbass.” N.T. Trial at 117-18, 127-29, 131-32. This witness testified
that Appellant then walked away, but that she spoke to him at the doorway
of the bar and told him not to worry about Victim and “[j]ust let it go,” and
that Victim was her cousin and was probably drunk. Id. at 119-22. She
testified that when Appellant came back into the bar, Appellant and Victim
were not near each other and that Victim said to Appellant, “[Y]ou need to
leave people alone. I ain’t messing with you.” Id. at 123-24, 130. This
witness also testified that all of the altercations before the shooting were solely
verbal and that she helped treat Victim’s wounds after he was shot and saw
no gun on Victim. Id. at 125, 128-29.
- 11 -
J-A25035-21
Appellant testified that at the bar on the night of the shooting, Victim
threatened several times to “fuck me up.” N.T. Trial at 141-42. Appellant
testified that in response, he walked away and out the door of the bar, but
came back into the bar because the woman with him and another person told
him that the situation was resolved. Id. at 143. Appellant testified that when
he came back in, he saw Victim “launch towards me with his hand in his
pocket” and heard Victim say “[s]omething about fucking me up and that type
of stuff.” Id. at 143-44. Appellant testified that he saw Victim pull a shiny
object from his pocket and that in response, he pulled out his gun and shot
Victim because he was in fear for his safety. Id. at 144-45. Appellant did
not dispute that he fired five shots at Victim and that he fired the fifth shot
when Victim was on the floor, but contended that he was still in fear for his
safety when he fired all of the shots. Id. at 145-46.
The video, which contained no audio recording, showed the following
actions and events at the 1313 Bar on the night of the shooting. Appellant
walked over to another patron and appeared to be talking angrily to him and
then argued with Victim, who was initially seated at the bar several chairs
away from Appellant. Victim stood up while he and Appellant were arguing
and Appellant walked away and out of the bar. The woman who came to the
bar with Appellant and another patron went to the door and talked to Appellant
and he came back into the bar with them. While Appellant was leaving the
bar and outside, Victim walked back and forth in the bar. As Appellant came
- 12 -
J-A25035-21
back into the bar, Victim was walking slowly toward the door, but was not
near the door, and appeared to be shouting in the direction of the door. Victim
put his left hand in the left front pocket of his pants, pulled out what appears
to be a cell phone, moved it to his right hand, and put it in his right back pants
pocket. Appellant then lunged forward, pushing against and reaching over
the woman he was with, who was trying to restrain him, and fired a gun at
Victim while Victim’s hands were empty and at his side. Appellant fired the
gun at Victim multiple times in rapid fire succession and did not stop shooting
as Victim fell to the floor. Appellant then walked out the door of the bar.
The above evidence was clearly sufficient to show malice as it shows
that Appellant intentionally fired a gun directly at Victim. Evidence that the
defendant intentionally fired a gun directly at a person is sufficient to show
malice. Young, 431 A.2d at 232; Knox, 219 A.3d at 195-96; Patterson,
180 A.3d at 1230; Devine, 26 A.3d at 1150. The fact that the victim had been
in an altercation with the defendant before the shooting does not preclude a
finding of malice. Young, 431 A.2d at 231-32; Patterson, 180 A.3d at 1222-
23, 1230.
This evidence was also sufficient to disprove Appellant’s self-defense
and imperfect self-defense claims. From the video, the trial court could find
that Appellant did not believe that Victim was threatening him with a weapon,
as the video shows that the object Victim took out was a cell phone, not a
weapon, and that Victim had put it away and had nothing in his hands when
- 13 -
J-A25035-21
Appellant began shooting. Moreover, it can be concluded from the video that
Appellant was acting out of anger and not fear when he fired the gun, as
Appellant was lunging toward Victim, was trying to get to Victim despite efforts
to keep him away from Victim, was not ducking or taking any evasive action,
and calmly walked out of the bar after the shooting.
Several other items of evidence also negate Appellant’s claims of self-
defense and imperfect self-defense. No weapon of any kind was found on
Victim and no witness saw any weapon on Victim. N.T. Trial at 33, 43, 104,
125. The threats that the witnesses testified that Victim had made did not
involve use of a firearm or other weapon that could harm Appellant from a
distance and Victim was not close to Appellant when Appellant shot him. Id.
at 117-18, 123-24, 129, 131-32, 141-44. The testimony of all of the
witnesses, including Appellant himself, also showed that Appellant had been
able to retreat with complete safety by leaving the bar after Victim had
threatened him and that he chose to return to the bar. Id. at 36, 74, 84, 119,
122, 143. Proof that the defendant was able to safely retreat is sufficient to
satisfy the Commonwealth’s burden of disproving both self-defense and
imperfect self-defense. 18 Pa.C.S. § 505(b)(2)(ii); Truong, 36 A.3d at 599;
Commonwealth v. Ventura, 975 A.2d 1128, 1143-44 (Pa. Super. 2009).
Moreover, there was evidence that what Victim said to Appellant when
Appellant returned to the bar was non-threatening. N.T. at 130.
- 14 -
J-A25035-21
Because the evidence at trial was sufficient to prove malice and to
disprove Appellant’s claims of self-defense and imperfect self-defense,
Appellant’s lone claim of error in this appeal is without merit. We therefore
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2021
- 15 -