J-S38006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEMETRIUS MONTIS JOSEPH                    :
                                               :
                       Appellant               :   No. 840 EDA 2018

            Appeal from the Judgment of Sentence February 14, 2018
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003865-2015


BEFORE:      OTT, J., DUBOW, J., and COLINS, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 24, 2019

        Demetrius Montis Joseph appeals from the judgment of sentence

imposed February 14, 2018, in the Chester County Court of Common Pleas.

On November 3, 2017, a jury convicted Joseph of one count of second-degree

murder, one count of conspiracy to commit robbery, one count of robbery

(causing serious bodily injury), five counts of robbery (placing in fear of

immediate serious bodily injury), and five counts of robbery (placing in fear

of immediate bodily injury).1 The court sentenced Joseph to an aggregate

term of life imprisonment.            On appeal, Joseph challenges the court’s




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   Retired Senior Judge assigned to the Superior Court.

1  See 18 Pa.C.S. §§ 2502(B), 903, 3701(a)(1)(i), 3701(a)(1)(ii), and
3701(a)(1)(iv), respectively.
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instruction in response to a jury question. For the reasons below, we affirm

the judgment of sentence.

       The underlying facts are as follows. On October 4, 2015, Joseph, his

co-defendant, Dajon Rowe, and three other men, conspired to rob a group of

migrant workers at their home in Coatesville, Pennsylvania.              During the

robbery, two of the victims, Juan Antonio Jimenez-Ramon and Juan Antonio

Sanchez-Gutierrez, were shot while another victim, Catalino Rodriguez-

Ramon was knocked unconscious.                 Jimenez-Ramon died as a result of his

injuries.

       Joseph was charged with multiple crimes related to the incident. The

matter proceeded to a five-day jury trial beginning on October 30, 2017.2 On

November 3, 2017, the jury convicted Joseph of the above-mentioned crimes.

As noted by the trial court, “The evidence introduced at trial clearly supported

the jury’s guilty verdicts, especially the introduction of prison telephone calls

in which [Joseph] admitted his involvement and culpability with regard to the

crimes for which he was convicted.” Trial Court Opinion, 12/28/2018, at 1.

Subsequently, on February 14, 2018, the court sentenced Joseph to the

following:    (1) a term of life imprisonment for the second-degree murder



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2 The Commonwealth’s theory was Joseph and two of the other men came up
with the idea of robbing someone, they recruited Rowe and a fifth man to join
the criminal action, and Rowe was the active shooter while the other men
provided the “muscle.” N.T., 10/30/2017, at 29. Joseph’s defense was that
he was merely present at the scene. Joseph and Rowe were tried together.

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conviction; (2) a concurrent term of five to ten years’ imprisonment for the

conspiracy conviction; and (3) three concurrent terms of five to ten years’

incarceration for the robbery (placing in fear of immediate serious bodily

injury) offenses.     The remaining charges merged for sentencing purposes.

This appeal followed.3

       In his sole issue on appeal, Joseph complains the trial court erred by

overruling his objection and improperly instructing the jury with respect to a

jury question. See Joseph’s Brief at 8.

       By way of background, the jury posed the following question to the

court: “Bullet Point 1 under Third Degree Murder: For Third Degree Murder,

does the second of the two elements that Dajon Rowe killed him, mean we

cannot consider [Joseph] for Third Degree Murder.” N.T., 11/3/2017, at 161.4

In an on-the-record conference, the following exchange occurred between the

parties and the court:

       [THE COURT]: The short answer to that is, of course, they can
       consider Mr. Joseph for Third Degree Murder as it has been
       explained to [them] and given to them in written instructions. The
       Commonwealth’s theory on Third Degree Murder is that Rowe is
       the shooter and Joseph is the accomplice. The Commonwealth
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3 On March 22, 2018, the trial court ordered Joseph to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following
numerous time extensions, Joseph filed a concise statement on December 5,
2018. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
December 28, 2018.

4  The court had previously instructed the jury on accomplice liability and
criminal conspiracy. See N.T., 11/3/2017, at 113-115, 120-123, and 131-
133.

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     has, throughout the trial, requested a jury charge from -- I would
     say the only case that says this right now, but they will try to find
     other cases is [Commonwealth v. King, 990 A.2d 1172 (Pa.
     Super. 2010)], where on a sufficiency analysis they have
     language, on appeal, we found appella[nt] had entered a
     conspiracy to commit an armed robbery. The killing was a natural
     and probable consequence of the element of robbery, and as a
     conspirator the appella[nt] was liable for the killing he carried out
     by his co-conspirator. The Commonwealth has asked for some
     time to see if they can get some authority on that. The defense,
     I assume, is objecting to going beyond the question asked; is that
     correct?

     [Joseph’s counsel]: Yes, Judge.

                                      …

     THE COURT: I will wait and see what the caselaw is. I will educate
     myself on that. It’s a confusing area of the law because of this:
     Murder Two is consistently the idea of – it’s basically you’re in for
     the conspiracy, you’re in for the homicide. Murder Three does not
     have that basic thing. It’s the difference of Murder Two and
     Murder Three.      Murder Three is a killing of malice.          The
     Commonwealth chose not to go with conspiracy to commit Murder
     Three, because of some caselaw up there or whatever reasons,
     but their position is, well, if you found a conspiracy to commit
     robbery, then you can find Murder Three. I will have to read the
     cases to see if I’m comfortable approaching that. It’s an issue
     raised by the [C]ommonwealth. It’s not in the standard jury
     instructions and I have yet to find a case that’s ever instructed on
     that and I’ve been looking all day. But I will look at that when
     they bring it up and we will go from there. Okay, I think that we’ll
     probably give [the Commonwealth] ten minutes. We probably all
     need to meet back here, so if you want to hang here, that’s fine.
     If you have anything else you want me to read, shoot it [to] my
     computer while I’m sitting here. Off the record.

                    BRIEF PAUSE IN THE PROCEEDING

     THE COURT: On the record. The question is: Bullet Point 1 on
     Third Degree Murder, for Third Degree Murder, there’s a second
     of three elements did Dajon Rowe kill him. Meaning, we cannot
     consider Mr. Joseph for Third Degree Murder. The answer is: No.
     You can consider Demetrius Joseph. Then, I’m going to use from

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     [Commonwealth v. Shamsid-Deen, 64 A.3d 274 [2307 EDA
     2011] (Pa. Super. 2013) (unpublished memorandum)] a non-
     presidential opinion, but I find it persuasive because it’s dealing
     with some of the issues at hand, a discussion about that case is
     when someone can be guilty of Third Degree Murder as an
     accomplice, quoting that case. I understand [Joseph’s counsel],
     you object to going beyond the question?

     [Joseph’s counsel]: I do.

     THE COURT:          I understand that, but I thin[k] the jury is
     wrest[l]ing with a complex issue. We have been discussing at
     length the Commonwealth’s theory, which I’m not going to get
     into now, but basically they requested a theory based on
     Commonwealth versus King of an instruction about conspiracy and
     if the killing is a natural and probabl[e] consequence of an armed
     robbery. The only reason I have not done that is because it’s
     simply something going to sufficiency of evidence. I have not
     found any legal instruction saying that in any judicial guidebooks
     or talking to other Judges about it. I know that principle has
     floated around there, but we’re not even talking about conspiracy
     here as far as Murder Three. I find it very confusing when that
     basic theory is if you are partner in crime it applies to Murder Two
     throwing that in a Murder Three where there could have been a
     charge of conspiracy to commit Murder Three. So that’s my ruling.
     I understand the Commonwealth would like me to give the natural
     and probable consequence charge; correct, [the Commonwealth]?
     If they come back with something along those lines, I may
     consider that, but now I have to narrowly answer this question,
     and I think I can narrowly explain it, but then going into basically
     what accomplice liability means and that’s pretty much a textbook
     statement of the state of the law.

     [Joseph’s counsel]: And I agree, Judge. I would just ask that the
     Court instruct that, I know I don’t want it to sound like the Court
     is saying, you know, Mr. Joseph is not an accomplice. They have
     to still find that . . . he is an accomplice. That’s for their
     determination. I just don’t want the instruction –

     THE COURT: I will throw in the defense’s theory is that he was
     merely present. I will put that in there. I will rework that
     language to get your theory of the case in.




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     [Joseph’s counsel]: I don’t want it to come across to the jury that
     the Court finds he’s an accomplice, so.

     THE COURT: Absolutely. You have heard both sides. The
     Commonwealth says he’s an accomplice because it was his idea,
     and he provided muscle and the defense says he was merely
     present; okay.

Id. at 161-165.

     The Court then instructed the jury as follows:

     The question was asking about Third Degree Murder regarding Mr.
     Demetrius Joseph and the question was Bullet Point 1 on Third
     Degree Murder, for Third Degree Murder is the second of the three
     elements:      Did Dajon Rowe kill, meaning, we cannot consider
     Demetrius Joseph for Third Degree Murder. The answer to that
     is, no, it doesn’t mean that. You certainly can consider Mr. Joseph
     for Third Degree Murder. The whole thing here is that the
     Commonwealth’s theory on Third Degree Murder is that Mr. Rowe
     is the shooter and Mr. Joseph is an accomplice. I described to you
     what an accomplice was. You heard both sides on this. The
     defense said he was merely present. The Commonwealth said it
     was his idea to do a robbery. He was there to help provide muscle
     regarding that.       The law about this, to refresh you about
     accomplice liability, the defendant may be guilty of Third Degree
     Murder as an accomplice if you find, one, he was just there not
     doing anything. The other one is that he is actively participating
     in a robbery. The Crime[s] Code defines accomplice as a person
     with the intent of promoting or facilitating the commission of a
     crime. He either solicits someone, a person to commit it or agrees
     or attempts to aid such person to commit it. Basically, as I said
     all along, he’s a helper. He helped the crime get committed. An
     accomplice liability may be established only by circumstantial
     evidence and only the least degree of concert and conclusion in
     the commission of the offense is sufficient to sustain the party
     responsible for the accomplice. Accomplice liability does not
     require the defendant to have a conscious motive to cause a
     particular result. Phrased differently, accomplice need not intend
     a death to result from [the] actions of another. Accomplice
     liability requires that the defendant have the mental state required
     for commission of a crime. Simply put, a person may be guilty of
     Third Degree Murder as an accomplice so long as he acts with
     malice while potentially aiding another. So the whole theory here

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      is Dajon Rowe is the shooter and Mr. Joseph is this helper. So to
      answer your question is certainly you can consider him for that.
      You have to weigh the arguments of counsel. You have heard
      [Joseph’s counsel] say he was merely present. You have heard
      the DA say it was his idea and he was there as muscle. Follow
      me?

      THE JURY: Yes.

Id. at 166-168.

      Joseph claims:

      The trial court answered the question improperly as the answer
      went beyond the specific question asked to include discussion and
      examples of accomplice liability and criminal conspiracy even
      though the jury had not asked for any instruction on this.
      Providing this to the jury without any indication that the jury
      wanted or needed an explanation on these matters was prejudicial
      to [Joseph] and improper.

Joseph’s Brief at 8. Moreover, he states:

      The jury’s question was very specific. The jury simply wanted an
      answer concerning whether 3rd degree Murder was still available
      as an option to Mr. Joseph if they found that Dajon Rowe was not
      the shooter.

                                      …

      There was absolutely no need to reinstruct the jury with respect
      to accomplice liability and criminal conspiracy. By giving the jury
      an instruction on accomplice liability and criminal conspiracy and
      revisiting both the Commonwealth’s and [Joseph]’s theory of the
      case and arguments of counsel, in a brief and concise manner, the
      trial judge improperly instructed the jury with additional
      information that wasn’t necessary and prejudiced [Joseph]. The
      answer was confusing and unnecessary and resulted in the jury
      convicting [Joseph] of 2nd degree Murder.

Id. at 9-10. Lastly, Joseph contends the court’s instruction did not constitute

harmless error, alleging: “If the trial court confused or gave an inappropriate


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answer to the jury, thus removing 3rd degree Murder as a viable option for the

jury, then it is unfair and disingenuous to simply state that this was harmless

error.” Id. at 10.

      With respect to jury instructions, we are guided by the following:

      Our standard of review in assessing a trial court’s jury instruction
      is as follows. “When evaluating the propriety of jury instructions,
      this Court will look to the instructions as a whole, and not simply
      isolated portions, to determine if the instructions were improper.”
      Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super.
      2014) (citations and quotation omitted). A trial court has “broad
      discretion in phrasing its instructions, and may choose its own
      wording so long as the law is clearly, adequately, and accurately
      presented to the jury for its consideration.” Id. (citations and
      quotation omitted). “Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.”
      Id. (citations and quotation omitted).

Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017), appeal

denied, 183 A.3d 970 (Pa. 2018).

      Here, the court found the following:

      After reviewing the charge as a whole and how the jury was
      instructed in response to its question, the court finds that the jury
      was properly advised as to the appropriate standard to apply. The
      applicable standard was accurately explained to the jury, and
      there was no fundamental error or confusion with regard to what
      the jury was told. Thus, the court finds that the issue raised by
      [Joseph] in his appeal is without merit.

      In addition, even if it is found that the answer given to the jury
      was incorrect and/or should not have been given, this alleged
      error was harmless. The question asked by the jury and the
      answer given by the court dealt with the charge of third degree
      murder. The verdict slip given to the jury read in pertinent part:

         1. Do you find Defendant, Demetrius Joseph, guilty or not
         guilty of the offense of Second Degree Murder?


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              Guilty _____                       Not Guilty ______

          If your answer to the above is Guilty, do not answer number
          2; proceed to number 3.

          If your answer to the above is Not Guilty, proceed to number
          2.

       See Verdict Slip. In this case, [Joseph] was found guilty of second
       degree murder. Accordingly, as instructed, the jury did not render
       a verdict for third degree murder. Thus, even if the court’s
       instructions to the jury should not have been given, [Joseph]
       suffered no prejudice as a result of the court’s actions.

Trial Court Opinion, 12/28/2018, at 3-4.

       We agree. In essence, Joseph alleges that the court’s instruction went

beyond the scope of the jury’s specific question by unnecessarily repeating

the instructions for accomplice liability and criminal conspiracy. Notably, the

court only instructed the jury as to accomplice liability with respect to third-

degree murder.        Moreover Joseph never complained the instruction was

irrelevant or a misapplication of the law.5

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5  The Pennsylvania Rules of Criminal Procedure indicate that “[n]o portions
of the charge nor omissions from the charge may be assigned as error, unless
specific objections are made thereto before the jury retires to deliberate.”
Pa.R.Crim.P. 647(C). Furthermore, “the mere submission and subsequent
denial of proposed points for charge ... will not suffice to preserve an issue,
absent a specific objection or exception to the charge or the trial court's ruling
respecting the points.” Commonwealth v. Sanchez, 82 A.3d 943, 978 (Pa.
2013) (citation omitted), cert. denied, 574 U.S. 860 (2014); see also
Pa.R.A.P. 302(b) (“Charge to jury. A general exception to the charge to the
jury will not preserve an issue for appeal. Specific exception shall be taken to
the language or omission complained of.”). As such, any challenge to the
specific language of the accomplice liability jury instruction in the present
matter has been waived.



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       As such, our review of the certified record leads us to conclude the jury

instruction given by the trial court was proper. This was a complex issue, as

indicated by the court,6 and based on the jury’s question, a recitation on the

theory of accomplice liability was not an abuse of discretion. Accordingly, we

find the instruction accurately described the law and was appropriate in light

of the evidence presented at trial.7           Therefore, Joseph’s sole argument on

appeal fails.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/19




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6   See N.T., 11/3/2017, at 164.

7  Furthermore, we agree with the court that any error would be harmless
because the jury found Joseph guilty of second-degree murder and therefore,
did not have to reach the issue of whether Joseph’s actions amounted to
accomplice liability in a third-degree murder situation. See Verdict Slip,
11/3/2017, at unnumbered 1.

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