Com. v. Vasos, D.

J-A09043-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEREK VASOS, :
:
Appellant : No. 467 WDA 2018
Appeal from the Judgment of Sentence January 25, 2018
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002087-2017
BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 09, 2020
Derek Vasos (Appellant) appeals from the January 25, 2018 judgment
of sentence of 15 to 30 years of incarceration, plus ten years of probation,
after a jury found Appellant guilty of third-degree murder. Upon review, we
affirm.
The trial court provided the following factual summary.
On February 5, 2017, at approximately [3:111] a.m.,
[emergency medic personnel and] police officers with the City of
Pittsburgh Bureau of Police responded to the 200 block of
Copperfield Avenue in the vicinity of the Carrick Literary Club
[(the Club)] for a report of a male who had been shot in the
chest. Upon arrival, officers learned that the victim, later
identified as 28-year-old Donald George Ketter, Junior
([Victim]), had been transported by ambulance to UPMC Mercy
1 We note that there was some confusion surrounding times because the
video footage was not synced with real time. The time of 3:11 a.m. is based
upon when the medics were dispatched to the scene. N.T., 10/23-30/2017
(Vol. I), at 76.
___________________
* Retired Senior Judge assigned to the Superior Court.
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Hospital where he was pronounced deceased []. Dr. Abdulrezzak
Shakir of the Allegheny County Medical Examiner’s Office
conducted an autopsy of Victim several hours later, and
determined that the cause of death was a gunshot wound to the
chest and the manner of death was homicide. [The toxicology
screen revealed the presence of cocaine and that Victim’s whole
blood ethanol was 0.177 percent.]
As part of their homicide investigation, detectives
interviewed several witnesses and obtained surveillance video
footage from the [Club]. Upon reviewing the video footage and
speaking with witnesses, detectives were able to identify the
individual who had fatally shot Victim as Appellant.[2] One
witness positively identified Appellant and advised police that
Appellant was a regular patron of the Club. This witness also
told police that Appellant was present at the Club on the morning
of the shooting.
Detectives also interviewed another witness, Michael
Nash[], who told police that he was working in his capacity as a
driver for the ridesharing company Uber on the morning of
February 5, 2017, and that he had received a notification for a
pickup request from an individual by the name of Derek at
approximately 2:30 a.m. After some initial confusion as to the
correct pickup location had been resolved, Nash made contact
with Appellant in the vicinity of the Club several minutes later.
Nash advised investigators that, upon entering the vehicle,
Appellant instructed him to drive quickly. [After Nash completed
certain necessary tasks on his Uber phone application, he began
to drive forward slowly. Within moments, Nash’s forward
progress was impeded by Victim, who was stumbling in the
middle of the road, walking in the same direction that the Uber
was traveling. Nash continued to drive slowly behind Victim,
waiting for him to move to the side of the road so that Nash
could continue driving on Copperfield Avenue. Appellant reached
over and honked the Uber’s horn, prompting Victim to turn
around.] Nash told police that he then observed Victim approach
his vehicle and that Appellant and Victim began to argue through
2 The video footage showed the entrance of the Club and the individuals
involved in this case, but did not capture the area where the shooting
occurred.
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the open window of his vehicle. Nash testified that, as he
attempted to maneuver his vehicle around Victim, who was
standing just to [the] right of his vehicle, he heard a loud
“bang,” which Nash believed to be a gunshot. [Nash attempted
to drive away from the sound of the gunshot, but the vehicle’s
transmission had slipped into neutral. Appellant told Nash to go,
and Nash placed the vehicle into drive.] At that time, Nash
drove off with Appellant in his vehicle, with Appellant directing
him where to drive. Nash told investigators that, at one point,
he looked over at Appellant and observed Appellant
disassembling what appeared to be a semiautomatic handgun[,
tossing the magazine and chambered bullet out of the window].
After driving for approximately ten [] minutes, Appellant
instructed Nash to stop the vehicle several blocks from the
location of the shooting. Upon exiting Nash’s vehicle[,]
Appellant asked Nash, “what happened?” Nash responded by
saying he did not see anything and did not wish to have any
further involvement in the situation. According to Nash,
Appellant responded by saying “yes” while drawing his fingers
across his throat, which Nash interpreted as a threat. Prior to
concluding their interview of Nash, police presented him with a
sequential photo array. After viewing a series of photographs,
Nash positively identified Appellant as the individual who was in
his vehicle during the incident near the Club on February 5,
2017.
During their investigation, police also interviewed a third
witness, Jonathan Kalsek[], who told police that he was parked
outside of the Club on the morning of February 5, 2017, just
prior to the shooting. Kalsek informed police that, as he began
to drive away, he observed a vehicle – which would later be
identified as the vehicle in which Appellant was a passenger –
stopped in the roadway on Copperfield Avenue. [Kalsek honked
his horn at the stopped vehicle. Victim responded to Kalsek by
putting his hands up and saying something along the lines of
“hold on, I got it.”] Kalsek advised police that he observed the
Victim [walk towards] the passenger side of the vehicle[, not
acting in a crazy manner,] when he [saw the barrel of a gun
protrude from the passenger window and] heard a gunshot and,
moments later, observed the blood-soaked Victim approach his
vehicle before collapsing to the ground. [Kalsek reversed his
vehicle up the street to alert nearby police to the shooting.]
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Trial Court Opinion, 7/3/2019, at 2-4 (some party designations altered). It
was undisputed that Appellant and Victim did not know each other and did
not speak to each other prior to the confrontation on Copperfield Avenue.
As a result of the foregoing, Appellant was charged with one count
each of criminal homicide and intimidation of a witness, relating to Nash.
Appellant proceeded to a jury trial on October 23-30, 2017. The
Commonwealth presented, inter alia, testimony from Nash and Kalsek to
establish the aforementioned facts. The jury viewed video footage from the
Club and heard testimony from Victim’s girlfriend. She testified that
following an argument, Victim went to the Club. Shortly before the
shooting, he sent her the following text messages, to which she did not
respond.
- “You know what?” (2:57 a.m.)
- “Fuck it.” (2:57 a.m.)
- “on everything that I love” (2:58 a.m.)
- “I see your little bigger [sic]” (2:58 a.m.)
- “I will knock him out” (2:59 a.m.)
- “just for you” (2:59 a.m.)
N.T., 10/23-30/2017 (Vol. I), at 197. She testified that she believed these
text messages referred to her ex-boyfriend, Brad Szablewski, who was also
at the Club that evening. N.T., 10/23-30/2017 (Vol. I), at 192, 200.
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At the conclusion of the Commonwealth’s case-in-chief, the trial court
granted Appellant’s motion for judgment of acquittal as to the intimidation of
witness charge, but denied it as to the charge of criminal homicide.
Appellant testified in his own defense, raising a claim of self-defense.
According to Appellant, he honked the horn because the Uber was trapped
between Victim, who was walking in the middle of the road in front of the
Uber, and Kalsek’s vehicle, which was behind the Uber. Appellant testified
that Victim became enraged, wrapped his belt around his hand, and charged
the open passenger side window, cursing at Appellant, as Victim fished in his
pockets for another weapon. Appellant testified that he feared for his life
when Victim reached through the window and Nash failed to drive away. In
response, Appellant leaned over into the driver’s seat where Nash was
sitting, used his non-dominant hand to remove his firearm from his coat
pocket, closed his eyes, and with the firearm still in his non-dominant hand
near his coat pocket, fired one shot in the direction of Victim. See N.T.,
10/23-30/2017 (Vol. III), at 508-605.
The Commonwealth did not offer rebuttal evidence. During closing
arguments, Appellant’s counsel argued that Appellant acted in self-defense
when Victim, drunk and high on cocaine, attacked Appellant as Appellant sat
in the Uber vehicle. Counsel intimated that, based on Victim’s text
messages to his girlfriend, he had potentially mistaken Appellant for
Szablewski. See id. at 613-15. After the trial court instructed the jury on
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the crimes of first-degree murder and third-degree murder, and the defense
of justification, the jury found Appellant guilty of third-degree murder.
Sentencing was deferred to allow for the preparation of a pre-sentence
investigation (PSI) report.
On January 25, 2018, Appellant was sentenced to a term of 15 to 30
years of incarceration, followed by ten years of probation. 3 On January 31,
2018, Appellant filed a post-sentence motion seeking to reduce his sentence
to a term of 6 to 20 years. Appellant did not set forth any alleged claims of
error, but rather sought a reduced sentence in order to be able to participate
in the raising of his children and to pay back his debt to society by paying
any damages owed to Victim’s family as a result of their wrongful death and
survival action. See Motion to Modify Sentence, 1/31/2018; see also N.T.,
3/5/2018, at 14-15. A hearing was held on March 5, 2018, to allow
Appellant the opportunity to present additional evidence regarding his
relationship with his children and the pending action filed by Victim’s family.
Considering all of the evidence presented at the sentencing hearing and the
post-sentence motion hearing, the trial court determined that the sentence it
had imposed was appropriate, and denied Appellant’s post-sentence motion.
3 The sentencing guidelines provided for a mitigated range sentence of 6½
years, and a standard range sentence of 7½ to 20 years. Sentencing
Guidelines, 1/25/2018 (converted from months to years). Appellant’s
minimum sentence of 15 years was in the standard range of the sentencing
guidelines. See Pa. Code § 303.16(a)(4) (“All numbers in sentence
recommendations suggest months of minimum confinement pursuant to 42
Pa.C.S. [§§] 9755(b) and 9756(b).)”
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This timely-filed notice of appeal followed.4 On appeal, Appellant
presents four issues for our review, which we have reorganized for ease of
disposition.
1. Was the evidence insufficient to sustain the verdict of third
degree murder where the Commonwealth failed to disprove
self-defense and did not meet its burden to prove malice
beyond a reasonable doubt?
2. Did the trial court err by refusing to instruct the jury on
“imperfect self-defense” voluntary manslaughter?
3. Is a new trial warranted where the trial court disallowed
evidence of [V]ictim’s aggressive character by relying upon a
misapplication of the law?
4. Did the court abuse its discretion by sentencing Appellant to
15-30 years in prison by failing to consider all relevant factors
including that Appellant was not a future threat to society and
that he expressed extreme remorse; and by imposing a
sentence that did not take into account Appellant’s
rehabilitative needs?
Appellant’s Brief at 5 (suggested answers omitted and capitalization altered).
Sufficiency of the Evidence
Appellant’s first claim challenges the sufficiency of the evidence. 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 [Commonwealth as 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
4 Both Appellant and the trial court have complied with the mandates of
Pa.R.A.P. 1925.
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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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)
(citation omitted).
1. Self-defense
We begin with Appellant’s claim that the Commonwealth failed to
disprove self-defense beyond a reasonable doubt. See Appellant’s Brief at
34.
According to our Supreme Court, the justified use of deadly force
requires:
a) the actor was free from fault in provoking or
continuing the difficulty which resulted in the use of
deadly force; b) the actor must have reasonably
believed that he was in imminent danger of death or
serious bodily injury, and that there was a necessity
to use such force in order to save himself or others
therefrom; and c) the actor did not violate any duty
to retreat or to avoid the danger.
The defendant has no “burden to prove” his self-defense claim.
Commonwealth v. Torres, [] 766 A.2d 342, 345 ([Pa.] 2001).
The Supreme Court explained the evidentiary burdens as
follows:
While there is no burden on a defendant to prove the
[self-defense] claim, before that defense is properly
at issue at trial, there must be some evidence, from
whatever source to justify a finding of self-defense.
If there is any evidence that will support the claim,
then the issue is properly before the fact finder.
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Id. (internal citations omitted). If the defendant properly raises
“self-defense under Section 505 of the Pennsylvania Crimes
Code, the burden is on the Commonwealth to prove beyond a
reasonable doubt that the defendant’s act was not justifiable
self-defense.” Commonwealth v. McClendon, 874 A.2d 1223,
1229-30 (Pa. Super. 2005).
The Commonwealth sustains this burden if it
establishes at least one of the following: 1) the
accused did not reasonably believe that he was in
danger of death or serious bodily injury; or 2) the
accused provoked or continued the use of force; or
3) the accused had a duty to retreat and the retreat
was possible with complete safety.
Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super.
2008). The Commonwealth must establish only one of these
three elements beyond a reasonable doubt to insulate its case
from a self-defense challenge to the evidence. The
Commonwealth can negate a self-defense claim if it proves the
defendant did not reasonably believe he was in imminent danger
of death or great bodily injury and it was necessary to use
deadly force to save himself from that danger.
The requirement of reasonable belief encompasses
two aspects, one subjective and one objective. First,
the defendant must have acted out of an honest,
bona fide belief that he was in imminent danger,
which involves consideration of the defendant’s
subjective state of mind. Second, the defendant’s
belief that he needed to defend himself with deadly
force, if it existed, must be reasonable in light of the
facts as they appeared to the defendant, a
consideration that involves an objective analysis.
Commonwealth v. Mouzon, [] 53 A.3d 738, 752 ([Pa.] 2012).
Commonwealth v. Smith, 97 A.3d 782, 786-87 (Pa. Super. 2014) (some
citations omitted).
On appeal, Appellant argues “the Commonwealth presented
insufficient evidence to disprove [Appellant’s] testimony concerning how the
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shooting occurred” and failed to prove beyond a reasonable doubt that
Appellant did not act in self-defense. Appellant’s Brief at 35-37.
Specifically, Appellant argues that the Commonwealth failed to prove that
Appellant was the aggressor, that he had a “duty to retreat from a car in
which he was a passenger[,]” or that he did not believe reasonably that he
was in danger of death or serious bodily injury. Id. at 35-36.5
The trial court concluded that after viewing all of the evidence offered,
the jury, which was free to believe some, all, or none of the evidence
presented, “found that the Commonwealth had satisfied its burden of proof –
both with respect to third[-]degree murder and [Appellant’s] self-defense
claim.” Trial Court Opinion, 7/3/2019, at 7.
As detailed supra, Appellant testified to a version of the shooting
where he was trapped in a non-moving vehicle as Victim, enraged, charged
the Uber vehicle as he cursed and threatened Appellant. Appellant testified
5 Within this argument section, Appellant claims that the trial court erred by
not instructing the jury that “Pennsylvania law recognizes that an actor is
presumed to have reasonable belief that deadly force is immediately
necessary to protect against death or serious bodily injury when another
individual is in the process of unlawfully entering or attempting to enter a
dwelling, residence or occupied vehicle.” Appellant’s Brief at 36 (citing 18
Pa.C.S. § 505(b)(2.1)(i) and (2.5)) (emphasis omitted). Appellant waived
any such claim by failing to request such an instruction or object to its
absence. See Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super.
2010) (citations omitted) (“A specific and timely objection must be made to
preserve a challenge to a particular jury instruction. Failure to do so results
in waiver. Generally, a defendant waives subsequent challenges to the
propriety of the jury charge on appeal if he responds in the negative when
the court asks whether additions or corrections to a jury charge are
necessary.”).
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that Victim, while holding a weapon and grabbing another weapon from his
pocket, reached through the partially-opened passenger window. Appellant
testified that he feared for his life, and ducked practically into Nash’s seat,
pulling out his firearm from his coat pocket with his non-dominant hand.
Without extending the firearm towards Victim, Appellant shot once, with his
eyes closed, in the direction of Victim.
It is well-settled that “issues of whether a defendant acts out of an
honest, bona fide belief and whether such belief was reasonable are
questions properly resolved by the finder of fact.” Commonwealth v. Hill,
629 A.2d 949, 952 (Pa. Super. 1993). Here, the Commonwealth called into
doubt Appellant’s version of events by presenting testimony from Kalsek and
Nash. Their testimony supported a finding that Appellant did not reasonably
believe he was in danger of imminent death or serious bodily injury.
Specifically, Kalsek testified that Victim was not acting crazy when he
approached the passenger side of the Uber, and that he had his hands in the
air. According to Kalsek and Nash, Victim remained on the side of the
vehicle; he did not attempt to enter through the partially opened passenger
window. Nash testified that he was attempting to maneuver the vehicle
around Victim as he stood to the side of the vehicle when Appellant shot
Victim. Notably, Nash did not testify that Appellant moved into the area of
his seat immediately prior to shooting Victim, and Kalsek testified to seeing
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the muzzle of Appellant’s weapon outside the passenger window prior to the
shooting.
“Although the Commonwealth is required to disprove a claim of self-
defense arising from any source beyond a reasonable doubt, a jury is not
required to believe the testimony of the defendant who raises the claim.”
Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008).
Accordingly, the testimony presented by the Commonwealth, which the jury
clearly credited, was sufficient for the jury to conclude that Appellant did not
reasonably believe he was in danger of imminent death or serious bodily
injury. Thus, this claim for relief fails.
Because the evidence was sufficient to show that Appellant’s belief
that he was in danger was unreasonable, the Commonwealth satisfied its
burden to prove that Appellant’s shooting the Victim was not justifiable self-
defense. As the Commonwealth is only required to satisfy one element of
the aforementioned test, we hold that the Commonwealth sustained its
burden “to prove beyond a reasonable doubt that the defendant’s act was
not justifiable self-defense.” Smith, 97 A.3d at 787.
2. Malice
We next turn to Appellant’s claim that the Commonwealth failed to
prove malice. Appellant’s Brief at 39.
To sustain a conviction of third-degree murder, the
Commonwealth must prove that the defendant killed another
person with malice. Malice is defined as exhibiting an extreme
indifference to human life. A fact-finder may find malice not
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only in an intentional killing, but also in an unintentional
homicide where the perpetrator consciously disregarded an
unjustified and extremely high risk that his actions might cause
death or serious bodily injury. A fact-finder may also infer malice
from the use of a deadly weapon upon a vital part of the victim’s
body.
Commonwealth v. Knox, 219 A.3d 186, 195 (Pa. Super. 2019) (citations
and quotation marks omitted).
Appellant argues that the Commonwealth failed to prove malice
because the evidence presented “support[ed] a finding that [Appellant]
acted out of fear he was in danger of death or serious bodily injury” and thus
his “state of mind did not manifest malice[.]” Appellant’s Brief at 41.6
The trial court observed that Appellant did not dispute shooting at
Victim or allege that the shooting was unintentional or the result of an
accident. The trial court determined that the Commonwealth presented
sufficient evidence to support Appellant’s third-degree murder conviction
because “a jury may properly conclude that pointing a loaded firearm at a
victim’s chest and pulling the trigger satisfies the malice requirement
6 Appellant argues that if the jury assessed his fear of death or serious
bodily injury as unreasonable, then the verdict should have been voluntary
manslaughter, not third-degree murder. Appellant’s Brief at 42. In so
arguing, Appellant complains that the trial court “inexplicably” did not
instruct the jury on voluntary manslaughter. As discussed at length infra,
Appellant neither sought a voluntary manslaughter jury instruction, nor
objected when none was offered, and therefore has waived any claim that
the trial court should have instructed the jury on voluntary manslaughter.
See Moury, 992 A.2d at 178.
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necessary to sustain a conviction for third[-]degree murder.” Trial Court
Opinion, 7/3/2019, at 8-9.
On appeal, Appellant argues that the deadly-weapon inference is
insufficient to prove malice because Appellant was defending himself, relying
on Commonwealth v. Austin, 575 A.2d 141 (Pa. Super. 1990).
Appellant’s Brief at 44-45. In Austin, this Court affirmed the order granting
Austin’s motion to quash a murder charge. With regard to first-degree
murder and third-degree murder, the Commonwealth argued that it had
provided prima facie evidence of Austin’s specific intent to kill and malice
based on Austin’s use of a knife to stab the victim, resulting in his death.
The preliminary hearing judge found that Austin did not intend to direct the
knife into the victim’s body. This Court agreed, noting as follows with regard
to the deadly weapon inference.
The proper focus for determining the mental component of the
crime is how appellant intended to use the knife or what caused
the knife to come into contact with a vital area of a human body.
A specific intent to kill and malice are properly implied when a
deadly weapon is directed to a vital part of the body.
575 A.2d at 144 (citations omitted).
Unlike in Austin, Appellant did not swing a gun around in self-defense
and accidentally kill Victim. First, the jury found that Appellant was not
acting in self-defense. Second, Appellant intended to shoot Victim: he
pointed a firearm at Victim’s chest and pulled the trigger. Thus, viewing the
evidence in the light most favorable to the Commonwealth as verdict winner,
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the Commonwealth presented sufficient evidence to establish the element of
malice. See Knox, 219 A.3d at 195-97 (concluding evidence was sufficient
to establish malice and disprove self-defense where Knox fatally shot victim
in chest three times, admitted to shooting victim, and Knox’s version of
events was unbelievable). Appellant unquestionably and “consciously
disregarded an unjustified and extremely high risk that his actions might
cause death or serious bodily injury” when he pointed his firearm at Victim
and pulled the trigger. Id. at 195. Accordingly, Appellant is not entitled to
relief on this claim.
Voluntary Manslaughter Jury Instruction
We next consider Appellant’s claim that the trial court erred in refusing
to instruct the jury on voluntary manslaughter. See Appellant’s Brief at 46.
“[O]ur standard of review when considering the denial of jury instructions is
one of deference—an appellate court will reverse a court’s decision only
when it abused its discretion or committed an error of law.”
Commonwealth v. Leaner, 202 A.3d 749, 782-83 (Pa. Super. 2019)
(citation omitted).
“[U]nreasonable belief voluntary manslaughter,” sometimes
loosely referred to as “imperfect self-defense,” will only justify
a voluntary manslaughter instruction in limited circumstances:
where a defendant held an unreasonable rather than a
reasonable belief that deadly force was required to save [his or
her] life,” and “all other principles of justification under 18
Pa.C.S. § 505 [ ] have been met.
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Commonwealth v. Sanchez, 82 A.3d 943, 980 (Pa. 2013) (some citations
and quotation marks omitted).
On appeal, Appellant avers that “[d]uring the discussion regarding jury
instructions, the trial judge emphatically stated his opinion that,
“‘[v]oluntary manslaughter isn’t in this case.’” Appellant’s Brief at 48 (citing
N.T., 10/23-30/2017 (Vol. III), at 607). According to Appellant, he
preserved his claim that the trial court erred in refusing to instruct on
voluntary manslaughter by raising it in his Pa.R.A.P. 1925(b) statement. Id.Looking at the trial court’s statement in context reveals the following.
At the conclusion of testimony, the trial court excused the jury to return on
Monday and be charged. N.T., 10/23-30/2017 (Vol. III), at 605-06. The
trial court asked for points for charge at the same time as Appellant
requested to approach at sidebar on a separate matter. Id. at 606. The
following exchange then occurred.
THE COURT: After you answer my question.
APPELLANT’S COUNSEL: I am sorry. Do we have the points for
charge?
THE COURT: Yes.
APPELLANT’S COUNSEL: We will have them. We don’t have
them right now, Your Honor. We thought that since we were
charging and closing on Monday --
ASSISTANT DISTRICT ATTORNEY: Likewise, Your Honor. I don’t
have mine either.
THE COURT: Okay.
APPELLANT’S COUNSEL: May we approach, Your Honor?
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THE COURT: Certainly.
(Whereupon, the following was held at sidebar.)
APPELLANT’S COUNSEL: Your Honor, as a procedural matter, I
am going to request a motion for acquittal for first[-]degree
murder. I recognize that, in fact, previous testimony was to a
vital organ. I believe that the testimony that was presented
today [by Appellant] would have this either as a third[-]degree
murder case or voluntary manslaughter.
THE COURT: Voluntary manslaughter isn’t in this case.
APPELLANT’S COUNSEL: I am not arguing for the voluntary
manslaughter and I am not arguing for --
THE COURT: No. That motion will be denied.
APPELLANT’S COUNSEL: Thank you, Your Honor.
Id. at 606-07 (attorney designations altered).
The sidebar concerning the motion for judgment of acquittal
concluded, and the parties re-approached for a sidebar discussion on how
the trial court intended to instruct the jury on the dismissal of the
intimidation of witness charge. Id. at 608. The trial court replied as follows,
“All I am going to say is that based upon all the evidence that is being
presented, the only question that you are going to consider is the question
of criminal homicide and one of three final verdicts, not guilty, guilty of first
or guilty of third.”7 Id. The attorneys thanked the trial court, and the
proceedings adjourned for the day.
7We note that although the trial court provided the jury broad instructions
on how a defendant charged generally with criminal homicide could be found
not guilty or guilty of first-degree murder, second-degree murder, third-
(Footnote Continued Next Page)
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Our review of the record reveals that the trial court’s statement that
“[v]oluntary manslaughter isn’t in this case[,]” which was relied upon by
Appellant for preservation of this issue, was not in response to a request for
a voluntary manslaughter jury instruction. It was in response to a motion
for judgment of acquittal as to first-degree murder, after defense counsel
argued that Appellant’s testimony supported a conviction of third-degree
murder or voluntary manslaughter. When the trial court noted that
voluntary manslaughter was not part of the case, Appellant agreed and
stated that he was not arguing voluntary manslaughter. Thereafter, the
Commonwealth and Appellant submitted written proposed points for charge.
Regarding the charge of criminal homicide, Appellant submitted proposed
instructions for first-degree murder, third-degree murder, and the defense of
justification. See Appellant’s Jury Charge Law on Rules for First-Degree
Murder, Third-Degree Murder, and Justification, 10/30/2017.
Contrary to Appellant’s assertion, Appellant did not request a voluntary
manslaughter instruction in his written points for charge, during any
discussions regarding proposed jury instructions, or anywhere else in the
record. Moreover, Appellant did not object to the trial court’s jury
instructions, or request any additions or corrections, when the trial court did
(Footnote Continued) _______________________
degree murder, voluntary manslaughter, or involuntary manslaughter, the
trial court specifically instructed the jury that this Appellant charged with
criminal homicide could only be found not guilty, guilty of first-degree
murder, or guilty of third-degree murder. See N.T., 10/23-30/2017
(Vol. I), at 14-15; N.T., 10/23-30/2017 (Vol. III), at 611-12.
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not instruct the jury on voluntary manslaughter. See N.T., 10/23-30/2017
(Vol. III), at 657-67. Thus, Appellant has failed to preserve this issue for
appeal.8 See Moury, 992 A.2d at 178 (citations omitted) (“A specific and
timely objection must be made to preserve a challenge to a particular jury
instruction. Failure to do so results in waiver. Generally, a defendant waives
subsequent challenges to the propriety of the jury charge on appeal if he
responds in the negative when the court asks whether additions or
corrections to a jury charge are necessary.”). Accordingly, this claim is
waived.
Victim Character Evidence
We next review Appellant’s claim that the trial court erred in denying
Appellant’s request to admit character evidence about Victim pursuant to
Pa.R.E. 404(a)(2)(B). We begin with our well-settled standard of review.
Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and a reviewing court will not
reverse the court’s decision on such a question absent a clear
abuse of discretion. An abuse of discretion may not be found
merely because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
Our rules of evidence provide, generally, that “evidence of a
person’s character or character trait is not admissible to prove
8 On appeal, the Commonwealth argued that Appellant waived this issue by
failing to request a voluntary manslaughter instruction or object to its
absence. See Commonwealth’s Brief at 22-25. Although Appellant filed a
reply brief, he did not refute the Commonwealth’s waiver argument as to
this claim.
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that on a particular occasion the person acted in accordance with
the character or trait.” Pa.R.E. 404(a)(1).
One relevant exception to this rule, however, provides that a
criminal defendant may offer evidence of an
alleged victim’s pertinent character trait, Pa.R.E. 404(a)(2)(B),
and may prove this trait by specific instances of conduct.
Specifically, the comment to Pa.R.E. 405 instructs:
With regard to criminal cases, under
Pa.R.E. 404(a)(2)(B), the accused may offer
evidence of a pertinent trait of character of the
alleged crime victim. Under Pa.R.E. 405(b)(2), the
trait may be proven by specific instances of conduct
without regard to whether the trait is an essential
element of the charge, or defense. This is consistent
with prior Pennsylvania law. See Commonwealth v.
Dillon, [] 598 A.2d 963 ([Pa.] 1991).
Comment to Pa.R.E. 405.
Commonwealth v. Crosley, 180 A.3d 761, 768-69 (Pa. Super. 2018)
(footnote and some citations and quotation marks omitted).
Our Supreme Court has described when this type of evidence is
admissible, as follows.
[W]hen self-defense is properly at issue, evidence of the victim’s
prior convictions involving aggression may be admitted, if
probative, either (1) to corroborate the defendant’s alleged
knowledge of the victim’s violent character, to prove that the
defendant was in reasonable fear of danger, or (2) as character/
propensity evidence, as indirect evidence that the victim was in
fact the aggressor. Only those past crimes of the victim that are
similar in nature and not too distant in time will be deemed
probative, with the determination as to similar nature and
remoteness resting within the sound discretion of the trial judge.
Mouzon, 53 A.3d at 741 (citations omitted). This Court has defined a
“pertinent” character trait as one “that is relevant to the crime or defense at
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issue in the case.” Commonwealth v. Minich, 4 A.3d 1063, 1072 (Pa.
Super. 2010).
By way of background, prior to jury selection on October 23, 2017,
Appellant orally moved to admit evidence at trial that Victim had been under
investigation for graffiti activity as a member of a crew called FTC. As part
of the investigation, some FTC members were observed committing assault
and holding assault weapons. N.T., 10/23-30/2017 (Vol. I), at 4-5.
Appellant argued this evidence, in conjunction with the text messages Victim
sent to his girlfriend, supported Victim’s “whole overall intent, it goes to his
motive, it goes to his habit in being part of this FTC gang of how he deals
with any type of adverse, as he interprets, action.” Id. at 6. Appellant did
not state whether he sought to introduce the evidence pursuant to Pa.R.E.
404(a)(2)(B)(1), Pa.R.E. 404(a)(2)(B)(2), or both provisions.
Apparently assuming Appellant sought to introduce the evidence
pursuant only to Pa.R.E. 404(a)(2)(B)(1), the trial court asked how
Appellant knew this information. Appellant’s counsel responded that
Appellant did not know it at the time he shot Victim. N.T., 10/23-30/2017
(Vol. I), at 7. The trial court denied Appellant’s request because Appellant
had “to establish that he had knowledge of the dangerous propensity in
order to have self-defense as a viable option for that factual scenario. All of
that is irrelevant.” Id. See also Trial Court Opinion, 7/3/2019, at 13-14
(explaining its decision to preclude Appellant from offering this evidence
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because Appellant had no knowledge of Victim’s character traits at the time
of the shooting, and therefore any evidence as to Victim’s character was
irrelevant to the crimes or defenses at issue). Appellant did not argue in
response that it was admissible under Pa.R.E. 404(a)(2)(B)(2).
On appeal, Appellant argues that the trial court erred when it
precluded the evidence based on Rule 404(a)(2)(B)(1), because it was
admissible pursuant to Rule 404(a)(2)(B)(2). Appellant’s Brief at 50-53, 55.
According to Appellant, Victim’s “character was an essential part of the
defense” to corroborate Appellant’s testimony that Victim was the aggressor.
Id. at 54. Appellant claims that “the police officers could have testified
regarding [Victim’s] character as it related to his gang involvement[,]
particularly concerning physical assaults and acts of aggression, as well as
providing specific instances of conduct.” Id. at 55.
Arguably, Appellant waived this issue for failing to present clearly that
legal theory to the trial court when Appellant moved to admit the evidence.
See Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008). Even
assuming Appellant had preserved this claim, Appellant failed to present to
the trial court, and fails to explain on appeal, how evidence that Victim was
under investigation for graffiti tagging corroborates that Victim was the
aggressor in this case. Appellant did not offer any specific instances of
conduct that he sought to introduce to corroborate that Victim was the
aggressor. It is beyond peradventure that evidence of unnamed persons’
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assaultive behavior is not attributable as a character trait of Victim merely
by virtue of Victim and the assaultive individuals belonging to the same
group. Because Appellant did not offer any pertinent character evidence to
corroborate that Victim was the aggressor, we conclude that the trial court
did not abuse its discretion in precluding Appellant from introducing the
proffered evidence. See Commonwealth v. O’Drain, 829 A.2d 316, 322
n.7 (Pa. Super. 2003) (“[T]his [C]ourt may affirm the decision of the trial
court if there is any basis on the record to support the trial court’s action;
this is so even if we rely on a different basis in our decision to affirm.”).
Discretionary Aspects of Sentencing
Finally, we review Appellant’s claim challenging the discretionary
aspects of his sentence. We consider this issue mindful of the following.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing [a] sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
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An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
On appeal, Appellant claims that the sentence imposed was
unreasonable and excessive, and that the trial court abused its discretion by
failing to consider Appellant’s rehabilitative needs, history, character, and
expression of remorse; by focusing on the seriousness of the crime; and by
relying on an incorrect statement of fact. Appellant’s Brief at 21-32.
Appellant avers that he preserved this claim “by timely filing a post-sentence
motion with the trial court specifically requesting sentence modification to
include consideration of his peaceful history, his circumstances[,] and
rehabilitative needs.” Id. at 19.
To satisfy the second requirement regarding preservation,
“[o]bjections to the discretionary aspects of a sentence are generally waived
if they are not raised at the sentencing hearing or in a motion to modify the
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sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013).
[F]or any claim that was required to be preserved, this Court
cannot review a legal theory in support of that claim unless that
particular legal theory was presented to the trial court. Thus,
even if an appellant did seek [] to attack the discretionary
aspects of sentencing in the trial court, the appellant cannot
support those claims in this Court by advancing legal arguments
different than the ones that were made when the claims were
preserved.
Rush, 959 A.2d at 949 (citations omitted).
In the instant case, Appellant failed to raise his specific appellate claim
in his post-sentence motion: that the sentence imposed was excessive,
unreasonable, or otherwise an abuse of discretion. Rather, in his post-
sentence motion, Appellant sought to offer additional evidence, which the
trial court permitted, and requested a modification from a standard-range
sentence to a mitigated-range sentence so that he could spend time with his
children and pay any damages owed from the wrongful death and survival
action filed by Victim’s family.
Based on the foregoing, Appellant has failed to preserve his
discretionary-aspects-of-sentencing claim because he did not present these
arguments to the trial court in his post-sentence motion or at sentencing.
See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012)
(“Issues challenging the discretionary aspects of a sentence must be raised
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings. Absent such efforts, an objection to a
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discretionary aspect of a sentence is waived.”) (citations and quotation
marks omitted).
Based on the foregoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2020
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