J-A32016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ANDREW ROBERT HESS

                            Appellant                 No. 915 EDA 2016


          Appeal from the Judgment of Sentence September 15, 2015
            in the Court of Common Pleas of Northampton County
             Criminal Division at No(s): CP-48-CR-0002823-2014


BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                            FILED MARCH 01, 2017

        Appellant, Andrew Robert Hess, appeals from the judgment of

sentence of life imprisonment following his conviction for murder in the first

degree.1 We affirm.

        We adopt the following statement of facts, derived from the trial

court’s opinion, which in turn is supported by the trial record.    See Trial

Court Opinion (TCO), 5/11/16, at 2-15. Appellant and the victim, Richard

Parker, were close friends. However, this friendship became strained when

Appellant began an intense but short-lived relationship with Jessica Drake.

Although the relationship lasted only five and one-half months, Appellant

and Ms. Drake remained close friends, and Appellant believed they would

____________________________________________


1
    18 Pa.C.S. § 2502(a).


*
    Retired Senior Judge assigned to the Superior Court.
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eventually    resume   their   relationship.   Instead,   Ms.   Drake   became

romantically involved with Mr. Parker. Appellant was “in denial” about the

situation and furious at Mr. Parker; Mr. Parker left Appellant voicemails

telling him to stay away from Ms. Drake.       Appellant did not speak to Mr.

Parker after Ms. Drake became involved with him.

      On July 10, 2014, Ms. Drake met Appellant at his place of work and

made tentative plans to meet again later that evening. They did not meet.

Instead, Ms. Drake went to see Mr. Parker at the garage where he worked.

Later that night, Appellant texted Ms. Drake to say that he was waiting for

her, but she informed Appellant she would have to reschedule. Ms. Drake

slept at the garage with Mr. Parker that evening.

      On July 11, 2014, at approximately 12:30 a.m., Appellant drove to the

garage. Appellant banged on the door, waking Mr. Parker and Ms. Drake.

When Mr. Parker answered, an altercation ensued during which Appellant

stabbed Mr. Parker multiple times.      Ms. Drake ran to the door, where Mr.

Parker told her that Appellant had stabbed him. He asked her to call 911

before collapsing. Appellant, standing outside the door, asked, “I’m going to

jail, aren’t I?”

      Ms. Drake observed serious injuries to Mr. Parker’s abdomen and back,

and she called 911 on her cell phone. While she attempted to put pressure

on Mr. Parker’s wounds, Appellant left the scene but returned to help her

direct emergency personnel to the location.




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      Police arrived at approximately 1:30 a.m. and found Mr. Parker lying

on his back inside the doorway, deceased, with a large wound in his

abdomen. The fatal injury was a deep stab wound to his back. Mr. Parker

also suffered defensive wounds on both of his palms and his torso. Copious

amounts of blood stained the ground a small distance from the body.

      Appellant, who had an injured lip and blood on his face, shirt, and

jeans, informed the officer he had gotten into a fight with his brother earlier

that day and had gotten blood on him trying to help Mr. Parker. Appellant

was taken into custody, and the twelve-inch serrated knife used in the

murder was recovered from a nearby pond.

      Appellant was transported to Pennsylvania State Police barracks for

questioning and waived his Miranda rights.        Appellant initially claimed he

did not know what happened to Mr. Parker. He stated that Mr. Parker had

already been injured when he arrived and he became covered in blood when

he   tried   to   move   Mr.   Parker’s   body.   However,    confronted   with

inconsistencies in this story, Appellant then stated that Mr. Parker had

assaulted him.

      Appellant, crying, claimed Mr. Parker was jealous that Appellant and

Ms. Drake were trying to rekindle their romantic relationship.        Appellant

claimed Ms. Drake informed Appellant that Mr. Parker had raped her,

although Ms. Drake later denied this. He then stated he could not believe he

had stabbed his friend and killed him, and was “just trying to get him off” of




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him. Following his interrogation, Appellant was arrested and charged with

one count of criminal homicide.

     On September 8, 2015, the matter proceeded to trial before a jury. At

trial, Appellant testified in his own defense. He stated that upon driving to

the garage, he was anxious because Ms. Drake had informed him that Mr.

Parker felt he “might not be able to control himself around [Appellant];” he

believed Mr. Parker was the stronger of the two men; and he knew Mr.

Parker kept a shotgun in his garage.      Appellant claimed this fear was the

reason he brought a knife to the confrontation.     However, Appellant also

admitted that in his seven years of friendship with Mr. Parker, Appellant did

not know him to be an aggressive person.

     Appellant testified that upon arriving at the garage, he told Mr. Parker

they needed to talk.   However, Mr. Parker grabbed him from behind and

began to strangle Appellant and punch him in the head. Appellant stated he

was unable to escape, “very scared,” and thought he was going to die.

However, he also admitted that he could move and breathe. At that point,

he removed the knife from his waistband and began swinging it around. Mr.

Parker fell and attempted to get up. Appellant, who assumed he was trying

to reach the shotgun, stabbed him in the back.

     Trial concluded September 15, 2015, when the jury convicted

Appellant of first degree murder.      The court proceeded immediately to

sentencing and imposed the mandatory sentence of life imprisonment.




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      Appellant timely filed a post-sentence motion challenging the weight

and sufficiency of the evidence. The trial court denied Appellant’s motion on

February 11, 2016.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.        The trial court issued a

responsive opinion.

      On appeal, Appellant raises the following issues for our consideration:

      1. Is the Appellant entitled to a judgment of acquittal where the
      Commonwealth failed to present sufficient evidence to disprove
      his self-defense claim beyond a reasonable doubt?

      2. Did the trial court commit reversible error where it refused to
      instruct the jury on involuntary manslaughter where (a) trial
      counsel requested this instruction (b) the law permits a
      defendant to claim both self-defense and involuntary
      manslaughter and (c) the evidence, including Appellant’s
      repeated denial of any intent to kill, would have supported this
      verdict?

Appellant’s Brief at 5.

      First, Appellant claims that the evidence was insufficient to disprove

his self-defense claim. See Appellant’s Brief at 27. He argues that certain

pieces of physical evidence, including a pool of blood inside the garage, a

knife sheath located inside the garage, defensive injuries to the victim’s

palms and torso, and injuries to Appellant’s body, undermined the

Commonwealth’s theory that Appellant stabbed the victim immediately upon

entering the garage. Id. Accordingly, Appellant claims that the trial court

erred in denying his post sentence motion for a judgment of acquittal.


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     We review a challenge to the sufficiency of the evidence as follows.

     In determining whether there was sufficient evidentiary support
     for a jury’s finding [], the reviewing court inquires whether the
     proofs, considered in the light most favorable to the
     Commonwealth as a verdict winner, are sufficient to enable a
     reasonable jury to find every element of the crime beyond a
     reasonable doubt.        The court bears in mind that: the
     Commonwealth may sustain its burden by means of wholly
     circumstantial evidence; the entire trial record should be
     evaluated and all evidence received considered, whether or not
     the trial court’s rulings thereon were correct; and the trier of
     fact, while passing upon the credibility of witnesses and the
     weight of the evidence, is free to believe all, part, or none of the
     evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted).

     To establish a claim of self-defense, three elements must exist: 1) that

the defendant reasonably believed he was in imminent danger of death or

serious bodily injury, and deadly force was necessary to prevent such harm;

2) that the defendant was free from fault in provoking the situation; and 3)

that the defendant did not violate a duty to retreat. See Commonwealth

v. Harris, 703 A.2d 441, 449 (Pa. 1997).           Reasonable belief has a

subjective and objective component,

     [f]irst, 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.

See Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012).




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     With regard to a claim of self-defense, the Commonwealth bears the

burden of disproving that defense beyond a reasonable doubt.            See

Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009). This burden

may not be sustained solely on the factfinder’s disbelief of the defendant’s

testimony. Id.

     Appellant’s argument centers on certain physical evidence inside of the

garage that supports his claim of self-defense. However, as noted above,

the Commonwealth introduced evidence to refute this claim.        Appellant

arrived at the garage in the middle of the night, uninvited and after seven

months of no contact with the victim. The two men were approximately the

same height and weight.    Mr. Parker was asleep, naked, and completely

unarmed.   See TCO, at 24-25.    Appellant, on the other hand, was armed

with a twelve-inch serrated hunting knife. Although Appellant testified that

Mr. Parker had him in a “bear hug” and he was afraid, he also admitted that

he was able to move and breathe. Appellant’s own testimony regarding the

sequence of events shows that Mr. Parker was unarmed, no weapon was in

view, and Appellant stabbed Mr. Parker in the back as he attempted to

escape.

     Thus, the Commonwealth introduced sufficient evidence to disprove

Appellant’s claim that he was acting in an honest belief that he was in

imminent danger which required the use of deadly force. Mouzon, 53 A.3d

at 752. Accordingly, based upon the above, the evidence was sufficient for




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the jury to conclude that the Commonwealth had disproved Appellant’s claim

of self-defense beyond a reasonable doubt. Rivera, 983 A.2d at 1211.

      Next, Appellant claims that the trial court erred in denying his request

for a jury charge on involuntary manslaughter. See Appellant’s Brief at 28.

Appellant argues that counsel timely requested this instruction, the offense

was an issue in the case, and that the evidence would support such a

verdict. Id. Accordingly, Appellant avers that the refusal to charge the jury

on involuntary manslaughter constituted reversible error. Id.

      When reviewing a challenged jury instruction, a new trial will not be

granted unless the given charge was inadequate or had a tendency to

mislead the jury. See Commonwealth v. Brown, 911 A.2d 576, 582-83

(Pa. Super. 2006). A charge is adequate unless it palpably misleads the jury

or contains an omission tantamount to a fundamental error.          Id.     With

regard to a requested charge,

      [A] trial court shall only instruct on an offense where the offense
      has been made an issue in the case and where the trial evidence
      reasonably would support such a verdict … Instructions
      regarding matters which are not before the court or which are
      not supported by the evidence serve no purpose other than to
      confuse the jury.

See Commonwealth v. Patton, 936 A.2d 1170, 1176 (Pa. Super. 2007),

aff'd, 985 A.2d 1283 (Pa. 2009). Accordingly, an involuntary manslaughter

charge is appropriate only when that crime is made an issue in the case and

the   evidence   would    reasonably    support   such   a   verdict.       See

Commonwealth v. Hairston, 84 A.3d 657, 668 (Pa. 2014). A defendant


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may not claim entitlement to an instruction that has no basis in the evidence

introduced at trial. Id.

       The Crimes Code defines involuntary manslaughter as follows:

       A person is guilty of involuntary manslaughter when as a direct
       result of the doing of an unlawful act in a reckless or grossly
       negligent manner, or the doing of a lawful act in a reckless or
       grossly negligent manner, he causes the death of another
       person.

18 Pa.C.S. § 2504.2 Where the evidence does not support the inference that

the death was the result of reckless or grossly negligent behavior

attributable    to   Appellant,    but   instead   overwhelmingly    indicates   that

Appellant intentionally committed the crime, an involuntary manslaughter

instruction is unwarranted. See Commonwealth v. Smith, 513 A.2d 1371,

1377-78 (Pa. 1986).

       The evidence introduced at trial, as discussed above, does not support

the contention that Mr. Parker’s death was a result of Appellant’s negligent

or   reckless   actions.      Instead,     the   evidence   showed   that   Appellant

____________________________________________


2
   In context of the Crimes Code, “reckless” conduct is the conscious
disregard of a substantial and unjustifiable risk that the material element of
the offense will result from the conduct. 18 Pa.C.S. § 302(b)(3). A person
acts negligently with respect to a material element of an offense when he
should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. 18 Pa.C.S. § 302(b)(4). In
both cases, the risk must be of such a nature and degree that, considering
the nature and intent of the actor's conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of conduct
that a reasonable person would observe in the actor's situation. 18 Pa.C.S.
§ 302(b)(3), (4).



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deliberately initiated a confrontation and stabbed Mr. Parker in the back,

resulting in his death. Accordingly, the trial court did not err in refusing to

charge the jury with involuntary manslaughter.      See Brown, 911 A.2d at

582-83.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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