Com. v. Barone, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL BARONE, JR. :
:
Appellant : No. 1528 WDA 2018
Appeal from the PCRA Order Entered October 1, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006683-2013
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
J., STABILE, J., NICHOLS, J., McLAUGHLIN, J., and KING, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED: APRIL 15, 2021
Barone’s jury convicted him of first-degree murder upon being
instructed that a fear for the life of himself and his friends must be reasonable
to justify an intentional killing, but not that an unreasonable fear could negate
the element of malice and warrant a finding of voluntary manslaughter.1 The
Majority holds that the counsel’s failure to ensure that the jury was informed
of its ability to return a reduced verdict if Barone unjustifiably acted in self-
defense or defense of others does not entitle Barone to relief because the jury
“had already been told that Barone could not be found guilty of murder if he
justifiably acted in self-defense or defense of others.” Majority Memorandum
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1 See, e.g., Commonwealth v. Nau, 373 A.2d 449, 452 (Pa. 1977) (“The
alleged fear of the appellant (even though unreasonable) in effect may be
considered for the purpose of negating the element of malice, the presence of
which would otherwise make the homicide murder and not manslaughter.”).
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at 11 (emphasis added). Since I fail to see the logic in the Majority’s ruling,
and because I further disagree with the Majority’s alternative holding that the
facts of the case rendered the voluntary manslaughter instruction inapplicable,
I respectfully dissent.
I begin with a review of the pertinent facts. Barone testified that he and
his best friend J.J. began their evening at J.J.’s house, then went to a bar
where J.J.’s girlfriend worked. See N.T. Trial, 8/20/15, at 97-98. J.J., who
had recently sustained gunshot wounds that negatively impacted his mobility,
was like a brother to Barone. Id. at 103-04, 107, 121. Another friend,
Travon Fuller, met them at the bar and drove them to Club Pink, where they
met some additional friends. Id. at 98-99. While the men enjoyed the club’s
amenities, a disturbance occurred upstairs, ultimately resulting in the club
management turning up the lights and instructing everyone to leave. Id. at
100-01. Barone and Fuller made their way outside, but were unable to locate
J.J. Id. at 101. While Barone looked around for J.J., Fuller indicated that they
had to get away quickly. Id. at 102. Barone observed a group of men he did
not know drawing weapons from a nearby vehicle. Id. at 102-03. Fearful for
J.J.’s safety, Barone retrieved a weapon from Fuller’s car and went back to
find J.J. Id. at 103 (“I couldn't leave J.J., like he’s like my little brother, you
know what I’m saying. . . . I’m not gonna leave him down there when all this
shit’s going on.”). Once J.J. was behind Barone making his way to Fuller’s
vehicle, the other group began shooting. Id. at 106. Barone moved towards
the other group and returned their fire to cover J.J. and Fuller while they
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readied the car for their hasty departure. Id. at 107. Fearing that none of
them would be able to get to safety, Barone continued to fire at the aggressors
rather than taking cover behind a dumpster or turning his back to run away.
Id. at 107, 124 124 (testifying that his instinct was to protect his friends “by
any means necessary” rather than run away to seek his own safety). Even
once the three were in Fuller’s vehicle and were attempting to get out of the
alley where they parked, the other group continued firing on them, prompting
Barone to fire shots from inside Fuller’s car as the three men were finally able
to flee. Id. at 107-08. In sum, Barone’s defense was that the other group
initiated and sustained the shooting, and that he took the steps he deemed
necessary to enable his friends to escape with their lives.
The trial court, which had reserved deciding whether it would instruct
the jury as to justification, ruled that Barone’s testimony warranted the
justification charge.2 See Commonwealth v. Mayfield, 585 A.2d 1069,
1071 (Pa.Super. 1991) (en banc) (“If there is any evidence from whatever
source that will support [the elements of self-defense] then the decision as to
whether the claim is a valid one is left to the jury and the jury must be charged
properly thereon by the trial court.”). Consequently, the trial court instructed
the jury as follows regarding murder and justification:
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2After issuing its ruling and indicating that it would charge the jury as to first-
and third-degree murder, the trial court asked, “Anything else?” N.T. Trial,
8/20/15, at 137. Barone’s counsel said nothing about voluntary
manslaughter.
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The defendant is charged with taking the life of John
Sumpter, IV, by criminal homicide. There are three possible
verdicts that you might reach in this case; not guilty or guilty of
one of the following crimes: Murder in the first degree or murder
in the third degree. Before I define each of these crimes I will tell
you about malice which is an element of the crime of murder.
A person who kills must act with malice to be guilty of any
degree of murder, and the word malice as I am using it has a
special legal meaning. It does not mean simply hatred, spite or
ill will. Malice is a shorthand way of referring to any of three
different mental states that the law regards as being bad enough
to make a killing murder. The type of malice differs for each
degree of murder. Thus for murder of the first degree a killing is
with malice if the perpetrator acts with, first, an intent to kill or,
as I will later explain in my definition of first degree murder, the
killing is willful, deliberate and premeditated.
....
A killing is without malice if the perpetrator acts with lawful
justification or excuse; lawful justification or excuse not only
negates malice but also is a complete defense to any charges of
criminal homicide, and I shall say more about this when I do
charge you on the defense of self-defense or justification.
The defendant is charged with murder of the first degree.
First degree murder is murder in which the perpetrator has the
specific intent to kill. To find the defendant guilty of this offense
you must find that the following three elements have been proven
beyond a reasonable doubt: First, that John Hunter Sumpter, IV
is dead; second, that the defendant killed him and; third, that the
defendant did so with the specific intent to kill and with malice. A
person has the specific intent to kill if he has a fully formed intent
to kill and is conscious of his own intentions.
As my earlier definition of malice indicates, a killing by a
person who has the specific intent to kill is a killing with
malice provided that it is also without circumstances
reducing the killing to a lawful justification or excuse.
Stated differently, a killing is with specific intent to kill if it is
willful, deliberate and premeditated.
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The specific intent to kill, including the planning needed for
first degree murder does not require planning or previous thought
for any particular length of time. It can occur quickly. All that is
necessary is that there be time enough so that the defendant can
and does fully form an intent to kill and is conscious of that
intention.
When deciding whether or not – whether the defendant had
the specific intent to kill you should consider all of the evidence
regarding his words and conduct and attending circumstances that
may show this state of mind. If you believe that the defendant
intentionally used a deadly weapon on a vital part of the victim’s
body you may regard that as an item of circumstantial evidence
from which you may, if you choose, infer that the defendant had
the specific intent to kill.
....
When deciding whether the defendant acted with malice you
should consider all of the evidence regarding his words and
conduct and the attending circumstances that may show his state
of mind. If you believe that the defendant intentionally used a
deadly weapon on a vital part of John Sumpter’s body you may
regard that as an item of circumstantial evidence from which you
may, if you choose, infer that the defendant acted with malice.
The defendant has raised the issue of whether he acted in
defense of himself or another, when his actions were to protect
Mr. Scott, Mr. Fuller or himself. Such a defense is called
justification in the law of the Commonwealth of Pennsylvania. If
the defendant’s actions were justified you cannot find him guilty
beyond a reasonable doubt. The issue having been raised it is the
Commonwealth’s burden to prove beyond a reasonable doubt that
the defendant did not act in justifiable defense of himself or
another.
....
If the Commonwealth proves to you beyond a reasonable
doubt that the defendant used deadly force, then to prove that
such force was not justifiable in this case it must prove one of the
following elements beyond a reasonable doubt: First, that the
defendant did not reasonably believe that he or another was in
immediate danger of death or serious bodily injury from John
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Sumpter or another unnamed individual or individuals at the time
that the defendant used the force and that, therefore, the
defendant’s belief that it was necessary for him to use deadly force
against John Hunter Sumpter or other unnamed individuals to
protect himself or another was unreasonable. Put another way,
the Commonwealth must prove either; one, that the defendant
did not actually believe another person was in danger of death or
serious bodily injury such that he needed to use deadly force to
defend them at the moment or, two, that while the defendant
actually believed he needed to use such force his belief was
unreasonable in light of all of the other circumstances known to
him.
Keep in mind a person is justified in using deadly force
against another not only when another person is in actual danger
of unlawful attack but also when the defendant mistakenly but
reasonably believes that he is. A defendant is entitled to estimate
the necessity for the force he employs under the circumstances as
he reasonably believes them to be at the time.
In the heat of conflict a person who witnesses an attack or
another ordinarily has neither -- on himself or another ordinarily
has neither time nor composure to evaluate carefully the danger
and make nice judgments about exactly how much force is needed
to protect them. Consider the realities of the situation faced by
the defendant here when you assess whether the Commonwealth
has proved beyond a reasonable doubt either that he did not
believe that he or another was actually in danger of death or
serious bodily injury to justify his use of such force in their defense
or that while he did believe that his belief was unreasonable.
The second application of justification in this case is where
the defendant knew that he could avoid the necessity of using
deadly force with complete safety by retreating himself, trying to
cause the person he sought to protect to retreat and failing to do
so. However, neither the defendant nor the person he seeks to
protect is obligated to retreat from his own dwelling; that is any
building or structure, though moveable or temporary or a portion
thereof, including the doorway that is at least for the time being
their home or place of lodging unless the defendant was the initial
aggressor in the incident.
If the Commonwealth proves one of these elements beyond
a reasonable doubt the actions of the defendant in using deadly
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force are not justified. If the Commonwealth fails to prove these
elements the defendant’s action was justified and you must find
him not guilty of the crime of criminal homicide.
N.T. Trial, 8/20/15, at 175-84 (emphasis added). Applying this law to the
evidence at trial, the jury returned a guilty verdict as to the charge of murder
in the first degree.
As its primary basis for its holding that counsel’s failure to request a
voluntary manslaughter charge did not render him ineffective, the Majority in
essence concludes that the trial court erred in even giving a self-defense
instruction in the first place. The Majority indicates that “[t]he evidence
presented at trial plainly established that Barone was not free from fault in
continuing the difficulty that led to Sumpter’s death, and that Barone chose
not to retreat from the parking lot, despite being able to do so safely with his
two companions[.]” Majority Memorandum at 7-8 (citation omitted, emphasis
in original). Noting that imperfect self-defense requires satisfaction of all
elements of self-defense except the reasonableness of the belief that deadly
force was necessary, the Majority states that Barone was unable to do so
because he failed to take cover behind a dumpster or a car when the shooting
began, and he walked towards, rather than away from, the threat while his
companions retreated. Thus, holds the Majority, Barone’s PCRA claim of
ineffectiveness lacks arguable merit.3 Id. at 8.
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3 The Majority indicates that its conclusion that the evidence did not support
the voluntary manslaughter instruction also renders Barone incapable of
satisfying the second prong of an ineffectiveness claim regarding reasonable
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Unlike the Majority, I believe that the trial court properly determined
that Barone’s testimony entitled him to a justification instruction. The law
dictates that the failure to exercise a duty to retreat defeats justification only
if “the retreat was possible with complete safety.” Commonwealth v.
Ventura, 975 A.2d 1128, 1143 (Pa.Super. 2009) (emphasis added).
Similarly, a disqualifying continuation of the difficulties occurs not when the
defendant is still responding to the ongoing violence posed by the aggressor,
but when the defendant uses deadly force after the initial deadly threat has
completely ceased. See, e.g., Commonwealth v. Serge, 837 A.2d 1255,
1266 (Pa.Super. 2003), aff’d on other grounds, 896 A.2d 1170 (Pa. 2006)
(holding evidence was insufficient to support imperfect self-defense
instruction where the defendant “failed to offer requisite evidence challenging
the inference that [he] ‘continued the difficulty which resulted in the killing’
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basis. See Majority Memorandum at 8. Yet, the record before us gives no
indication that it was a belief that the instruction was inappropriate that
motivated counsel’s omission. Indeed, the fact that counsel repeatedly
advocated for the justification instruction tends to belie the Majority’s
assumption that counsel’s inaction was based upon an unfavorable
assessment of the evidence, and instead suggests that it was the result of
counsel’s neglect. However, because the PCRA court declined to hold a
hearing, we do not know why counsel failed to request that the jury be charged
as to voluntary manslaughter. The law is clear that it is improper to conclude
that counsel’s omission lacked a reasonable basis without an evidentiary
foundation. See Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa. 2011)
(“[G]enerally, the court should not glean from the record whether counsel had
a reasonable basis for his action or inaction absent an evidentiary hearing,
and that it is only in the most clear-cut cases that the reasons for counsel's
conduct are apparent from the record.”). Therefore, as indicated infra, I would
remand for a hearing on that issue.
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when he fired the fatal shot into a kneeling, wounded, and non-threatening
[victim]”).
Barone testified that the threat continued after J.J. and Fuller were
behind him, and that the other group continued shooting at them until they
escaped the scene. Since the shooters did not cease their fire or withdraw
from the scene, the jury need not have concluded that Barone’s immediate
running to the car or ducking behind a dumpster would have rendered him
and his comrades completely safe from the ongoing deadly threat. Nor must
the jury have concluded that Barone and his friends were safe once they were
in Fuller’s car and attempting to leave the scene, as there was no suggestion
that Travon’s car was bulletproof. Indeed, the decedent himself was inside a
car when struck by Barone’s bullet.
Thus, I believe the Majority errs in ruling that the evidence required a
finding that Barone was not free from fault and could have retreated with
complete safety. Cf. Commonwealth v. Isaacman, 409 A.2d 880, 881 (Pa.
1979) (affirming voluntary manslaughter conviction where defendant shot
retreating victim in the back upon concluding that, “[e]ven if [defendant]
believed that [victim] would return and do him further harm, he was under a
duty to retreat, and, once the deceased had left the scene, this could have
been done with complete safety”). Where, as here, the evidence could support
a defense to the charges at issue, the defendant is entitled to the relevant
jury instructions, and the credibility and import of the evidence is exclusively
for the fact-finder to decide. See, e.g., Commonwealth v. Markman, 916
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A.2d 586, 607 (Pa. 2007) (“[W]here a defendant requests a jury instruction
on a defense, the trial court may not refuse to instruct the jury regarding the
defense if it is supported by evidence in the record; it is for the trier of fact to
pass upon that evidence and improper for the trial judge to exclude such
consideration by refusing the charge.” (cleaned up)). Accord
Commonwealth v. Roxberry, 602 A.2d 826, 828 (Pa. 1992) (holding
counsel was ineffective in failing to object to the absence of an alibi jury
instruction upon rejecting the Commonwealth’s argument that the defendant’s
alibi testimony was not corroborated, stating “[b]ecause credibility is
indisputably the exclusive province of the jury, we cannot properly permit a
judge, under the guise of exercising discretion, to remove the alibi issue from
the jury merely because the judge finds the evidence incredible”);
Commonwealth v. Weber, 189 A.3d 1016, 1026 (Pa.Super. 2018) (holding
that trial court erred in not instructing the jury as to the personal safety
defense to justify the defendant’s failure to obey a police instruction to stop
his vehicle; once the defendant invoked the defense by expressing a
subjective concern for his own safety, “any determination regarding the
reasonableness of that subjective concern was the exclusive province of the
jury”).
The Majority alternatively holds that Barone was not prejudiced by
counsel’s failure to request a voluntary manslaughter instruction because the
fact that the jury convicted Barone of first-degree murder establishes that it
would not have reached a different result were the omitted charge given. The
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Majority maintains that the outcome of the trial would have been the same
even if the jury was informed that it could convict Barone of involuntary
manslaughter since it “clearly determined that Barone acted with malice in an
unjustified manner in using deadly force[.]” Majority Memorandum at 11. I
disagree.
“[A] killing is excused in the name of self-defense only if the slayer
reasonably feared for his life. An unreasonable belief that one’s life is in
jeopardy will not excuse a killing, but it will reduce the degree to voluntary
manslaughter.” Commonwealth v. McNeil, 439 A.2d 664, 669 (Pa. 1981)
(cleaned up). Barone’s jury was told the first of those principles: “a killing
by a person who has the specific intent to kill is a killing with malice provided
that it is also without circumstances reducing the killing to a lawful justification
or excuse.” N.T. Trial, 8/20/15, at 178. However, it was not told that “where
a defendant acts under an unreasonable fear that he is in danger of serious
bodily harm, there may be a direct and specific intent to kill, and yet the
offense may constitute voluntary manslaughter.” Commonwealth v. Nau,
373 A.2d 449, 452 (Pa. 1977) (cleaned up).
Without the benefit of a voluntary manslaughter instruction, the jury
was left to believe that, if Barone fired his weapon with the specific intent to
kill, the only basis for not finding him guilty of first-degree murder was if he
reasonably acted in self-defense or defense of others. I acknowledge that it
is entirely possible that the jury’s verdict was based upon a conclusion that
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Barone was the aggressor, that he had a duty to retreat but failed to do so,
or that he did not actually fear for the safety of anyone in his group.
However, it is also completely plausible, and consistent with the
instructions that the jury received, that its verdict was based upon the
determination that Barone fired his weapon with the specific intent to kill and
the unreasonable belief that doing so was necessary to defend himself or his
companions. Accord Commonwealth v. Monroe, 322 A.2d 100, 101 (Pa.
1974) (holding, where the defendant had argued with an armed man in a bar
for insulting his sister, and subsequently fired a gun at the armed man’s
brother-in-law as soon as he and two other men approached the defendant
threateningly, that the defendant would be guilty of voluntary manslaughter,
not murder, if his hasty use of deadly force was actually motivated by a fear
that his life was in danger, even if the fear was unreasonable).
To me, this possibility that the jury could have convicted Barone of first-
degree murder because it was unaware that imperfect self-defense negated
the malice element of the crime, sufficiently erodes confidence in the outcome
of the proceedings to establish prejudice. See, e.g., Commonwealth v.
Little, ___ A.3d ___, 2021 PA Super 7 (Pa.Super. January 15, 2021)
(reiterating that the prejudice standard—"a degree of likelihood sufficient to
undermine confidence in the outcome of the proceedings”—“is not a stringent
one, as it is less demanding than the preponderance standard” (cleaned up)).
For the above reasons, I would hold that Barone has established that
his claim that counsel was ineffective in failing to request an imperfect-self-
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defense voluntary manslaughter charge has arguable merit, and that he was
prejudiced by the omission. Rather than affirm the order dismissing Barone’s
PCRA petition, I would remand for a hearing on the question of whether
counsel had a reasonable basis for failing to request the instruction. See
Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa. 2011) (providing that
where a PCRA petitioner raises allegations of counsel’s lack of a reasonable
basis, the issue generally should be determined following an evidentiary
hearing).4 Accordingly, I respectfully dissent.
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4 Barone alleged that counsel’s failure to request the justification charge was
not a reasoned trial strategy, but the result of substance abuse issues that
affected counsel during trial.
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