J-S06006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 LANCE SMITH                            :
                                        :
                    Appellant           :   No. 3041 EDA 2017

         Appeal from the Judgment of Sentence September 11, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002395-2014

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 LANCE SMITH                            :
                                        :
                    Appellant           :   No. 3042 EDA 2017

         Appeal from the Judgment of Sentence September 11, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002394-2014

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                           FILED APRIL 30, 2019

      Lance Smith appeals from the aggregate judgment of sentence of life

imprisonment imposed after he was convicted of first-degree murder, firearms

not to be carried without a license, recklessly endangering another person,

and resisting arrest. We affirm.

      The trial court offered the following summary of the facts underlying

Appellant’s convictions.
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      [O]n the evening of November 16, 2013, there was a party at The
      Mixed Plate located on the 200 block of South Street in the City
      and County of Philadelphia. [The party was hosted by the
      Presley/Crenshaw family, the patriarch of which ran a company
      that provided security services at the Mixed Plate and other
      venues. Mr. Presley, Sr. employed many of his sons and stepsons
      through the company as bouncers. Most of them in attendance
      that night did so as party guests.] [Appellant] attended with his
      brother and several friends.

            Around 1:25 a.m., one of the guests, Willie Crenshaw,
      noticed [Appellant] and it appeared that [Appellant] was choking
      a woman on the dance floor. Mr. Crenshaw intervened and a fight
      ensued. The fight got out of hand, others joined in and it turned
      ugly quickly. [Appellant] and his brother were both beaten up and
      pushed out of the bar by the event security. Another fight began
      outside. In an attempt to get some order to the area, [Appellant]
      [was] brought back into the bar, but again, some of the revelers
      attacked [Appellant]. The police responded in order to break up
      the fights. [Appellant] retrieved a .40 caliber handgun and
      returned to South Street. Willie Crenshaw, along with his brother,
      Demetry Presley, who needed medical attention due to injuries
      sustained in the bar brawl, were walking down the street when
      they saw [Appellant] heading towards them. They crossed the
      street to avoid him, but [Appellant] continued in their direction.
      [Appellant] started shooting at them, while walking into the street
      and crossing over to where Willie Crenshaw and Demetry Presley
      were taking cover between two vehicles. Demetry Presley was
      unable to walk on his own due to his earlier injuries, and needed
      the aid of his brother, so they were unable to run from [Appellant].
      [Appellant] shot Demetry Presley multiple times, hitting him in
      both arms, and then while reaching over toward him, shot
      Demetry in the head behind his ear. [Appellant] then fled,
      followed by the police. After a struggle with police officers, and
      being instructed to put the gun down multiple times, [Appellant]
      was subdued and arrested. Demetry Presley died in the evening
      of November 17, 2013, after sustaining a total of five gunshot
      wounds, including the fatal one to the head.

Trial Court Opinion, 5/8/18, at 3-4 (citations omitted).




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       Appellant was charged at two docket numbers with murder generally,

and inter alia, the above-mentioned crimes.1 Appellant entered a guilty plea

to third-degree murder and possession of a firearm prohibited, but was

permitted to withdraw the plea. At a jury trial, the Commonwealth presented

evidence of the facts detailed above.          Appellant presented evidence of the

extent of the injuries he sustained in the fights prior to the shooting, which

included an orbital fracture and a concussion, and a witness who indicated

that Appellant was “out of it” following the beatings he took.          N.T. Trial,

9/8/17, at 37. Appellant also testified to his belief that he was acting in self

defense because, when he encountered Crenshaw and Presley while walking

in the area of the Mixed Plate following the brawl trying to locate his brother,

Crenshaw pulled a gun on him, and Appellant shot at Crenshaw to protect

himself. Id. at 81-82.

       Regarding the killing of Presley, the jury was charged as to murder in

the first and third degrees and voluntary manslaughter, as well as self defense

and imperfect self defense.         On September 11, 2017, the jury convicted

Appellant of first-degree murder, and the trial court sentenced him to life

imprisonment.

       Appellant did not file a post-sentence motion, but did file timely notices

of appeal at both docket numbers. The trial court ordered Appellant to file


____________________________________________


1 One docket number involved crimes related to the shooting of Presley, the
other crimes related to the police officers endangered by Appellant’s conduct.

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and serve on the court a statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b). Appellant timely filed a statement after being granted

several extensions.2

       Appellant presents the following questions to this Court, which we have

reordered for ease of disposition.

       I.      Was the evidence insufficient to support the verdict where
               Appellant, who was knocked unconscious after two serious
               beatings, could not have formed the specific intent to kill,
               and where the Commonwealth failed to disprove his claim
               of self-defense beyond a reasonable doubt?

       II.     Did the lower court err by not dismissing charges against
               Appellant where the government failed to obtain relevant
               evidence from the crime scene?

       III.    Did the lower court err by not giving a requested instruction
               on involuntary manslaughter where the evidence supported
               such a charge?

Appellant’s brief at 5.

       We begin with Appellant’s claim that the evidence was insufficient to

establish that he committed first-degree murder. Evidentiary sufficiency is a

question of law and “our standard of review is de novo and our scope of review

is plenary.”     Commonwealth v. Williams, 176 A.3d 298, 305 (Pa.Super.

2017).

       In reviewing the sufficiency of the evidence, we must determine
       whether the evidence admitted at trial and all reasonable
____________________________________________


2 The statement’s filing is reflected on the docket, but the statement is not
included in the certified record before this Court. However, its absence does
not hinder our review, as its contentions are apparent from the trial court’s
opinion.

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      inferences drawn therefrom, viewed in the light most favorable to
      the Commonwealth as verdict winner, were sufficient to prove
      every element of the offense beyond a reasonable doubt. [T]he
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Id. at 305-06.

      Murder in the first degree is an intentional killing. 18 Pa.C.S. § 2502(a).

“In order to prove first-degree murder, the Commonwealth must establish

that: (1) a human being was killed; (2) the accused caused the death; and

(3) the accused acted with malice and the specific intent to kill.”

Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013). “[O]ur Supreme

Court has repeatedly held[ that] a jury may properly infer malice and specific

intent from the fact that a victim was shot multiple times.” Commonwealth

v. Kennedy, 151 A.3d 1117, 1122 (Pa.Super. 2016). If, however, the killing

was done “under a sudden and intense passion resulting from serious

provocation,” the actor is instead guilty of voluntary manslaughter. 18 Pa.C.S.

§ 2503(a).

      In addition, “[w]hen a defendant claims self-defense, the burden is on

the Commonwealth to disprove the defendant’s claim beyond a reasonable

doubt.”   Commonwealth v. Patterson, 180 A.3d 1217, 1231 (Pa.Super.

2018). That burden is satisfied upon proof of any of the following:

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      that the slayer was not free from fault in provoking or continuing
      the difficulty which resulted in the slaying; that the slayer did not
      reasonably believe that he was in imminent danger of death or
      great bodily harm, and that it was necessary to kill in order to
      save himself therefrom; or that the slayer violated a duty to
      retreat or avoid the danger.

Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (cleaned up).

An intentional killing is deemed voluntary manslaughter rather than first-

degree murder if it is done under the unreasonable belief that it was justifiable.

18 Pa.C.S. § 2503(b).

      Appellant’s sufficiency challenge is multifaceted. Appellant claims that,

given the severe injuries he and his brother sustained at the hands of the

Presleys and Crenshaws “mere minutes before” the shooting, (1) he was

incapable of forming the intent to kill, and rather acted under the heat of

passion; and (2) the most culpable he could have been was to have acted

under the unreasonable belief that deadly force was required for his own

protection. Appellant’s brief at 22, 24.

      The trial court offered the following assessments of Appellant’s

contentions.

             [Appellant] retrieved a gun, saw individuals from the fight
      coming down the street and instead of heading in a different
      direction or going to the police, who were swarming the area,
      [Appellant] pulled out his gun and started shooting. [Appellant]’s
      own testimony clearly proves that he knew what he was doing and
      was not so affected by his previous fights that he did not know
      what he was doing. He not only pulled out his gun and started
      shooting, but he then actively pursued the two men as he went
      into the street shooting. He then expressly walked over to where
      the victim was taking cover, in order to stand over the body of his
      prey and shoot him in the back of the head.              That [the

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      Commonwealth offered sufficient evidence to prove that
      Appellant] had the requisite intent to kill is without doubt in this
      case.

            ....

            [Appellant] told the jury that Willie Crenshaw pulled out a
      gun and in response to that he pulled out his own gun and began
      shooting, because he was scared and didn’t want to die. However,
      [Appellant]’s testimony was unable to explain his deliberate
      pursuit of Willie Crenshaw and Demetry Presley, or why when he
      alleges it was Willie Crenshaw who was going to shoot him, it was
      Demetry Presley whom he shot five times. Crenshaw wasn’t shot.
      The video shows [Appellant] entering into the street shooting his
      gun, continuing across the street shooting his gun, coming up
      behind Presley and shooting Presley in the back of the head, not
      Crenshaw. Presley was shot five times, Crenshaw not at all. It
      would be reasonable to assume that if you are claiming you are
      shooting at someone in self-defense, that the person you shoot is
      the one with the gun, not someone else. Particularly disturbing is
      the fact that Presley was already too injured to walk on his own
      before being targeted by [Appellant]. If Crenshaw was the one
      that [Appellant] feared because Crenshaw is alleged to be pointing
      the gun, then [Appellant] should have been shooting at Crenshaw.
      [Appellant] was walking across the street firing the gun, came up
      behind a severely injured and crouching Presley and shot Presley
      in the back of the head. The video and [Appellant]’s own
      testimony clearly show that [Appellant] was not acting in self-
      defense; he was the aggressor, and as such the Commonwealth
      unequivocally disproved [Appellant]’s claim of self-defense.

Trial Court Opinion, 5/8/18, at 7, 9 (citation omitted).

      The trial court’s analysis of the evidence accords with our own. There

is no question that Appellant sustained serious injuries at the hands of the

Crenshaws and Presleys, and that a reasonable person could have had a

severe emotional provocation by taking such a brutal beating. Accordingly,

the trial court instructed the jury as to voluntary manslaughter.




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      However, evidence offered by both the Commonwealth and by Appellant

indicate that Appellant had sufficient time to cool off, that he had in fact cooled

off, and that he deliberately shot Presley without justification.              The

Commonwealth offered evidence from multiple sources to establish that

Appellant had been removed from the danger and given the opportunity to

obtain aid from the police and/or medical professionals, and to be taken home

by friends. Instead, Appellant ran from the car of women who had tried to

remove him from the scene; connected with a friend who provided Appellant

with a firearm and a change of clothes; went back towards the Mixed Plate to

encounter Crenshaw and others who were attempting to get Presley to a

hospital; attacked the unarmed group of men, shooting Presley in the arms,

hand, and head; and immediately thereafter fled from the police. See N.T.

Trial, 9/6/17, at 117, 124, 138-63; N.T. Trial, 9/7/17, at 18-20; N.T. Trial,

9/8/17, at 1679-82, 89-90, 131-43.

      Appellant’s own testimony fails to suggest that he was acting under a

sudden and intense passion when he armed himself and went back towards

the Mixed Plate. Appellant’s version of events is that, after he was away from

the scene of the violence, he was concerned about finding his brother. N.T.

Trial 9/8/17, at 78. He located friends, tended to his own injuries, changed

his shirt, tried to reach his brother by phone, formulated a plan for the group

to split up to search for his brother, and encountered Presley and Crenshaw

during that search. Id. at 95-100.


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      With this evidence of the delay between the provocation and the

shooting;   Appellant’s   calculated   decisionmaking    during   the   interim;

Crenshaw’s testimony that he and his brothers were all unarmed that night;

and the facts that Appellant continued to pursue and shoot after Presley was

shot multiple times and that he and Crenshaw attempted to hide before

Appellant fired the shot that killed Presley; the Commonwealth offered

sufficient evidence to allow the jury to reasonably conclude that Appellant shot

Presley with malice and the specific intent to kill. See, e.g., Commonwealth

v. Boone, 354 A.2d 898, 903 (Pa. 1975) (holding evidence did not establish

self-defense where the victim had been backing away from the defendant

when defendant approached and victim died of multiple stab wounds to

various parts of the body); Commonwealth v. Butler, 288 A.2d 800, 802

(Pa. 1972) (rejecting sufficiency challenge to first-degree murder conviction

where circumstances made it “clear that the killings did not occur under the

pressure of heat or passion[ and] sufficient time for cooling [had] elapsed

between whatever provocation might have existed and the actual killings”).

Therefore, Appellant’s first issue warrants no relief.

      Appellant next claims that the trial court erred in denying his motion to

dismiss the charges based upon the Commonwealth’s failure to obtain certain

pieces of evidence from the crime scene.           Appellant averred that the

Commonwealth did not recover all of the spent shell casings from the area of

the shooting. Motion to Dismiss, 8/16/17, at ¶ 2. Appellant’s contention that


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evidence was lost is based upon some officers’ reports that there were ten

casings at the crime scene, but the Commonwealth only preserved nine. He

argues that the missing evidence was “highly probative and relevant to

Appellant’s claim of self-defense,” since it was based upon his testimony that

he fired only after Crenshaw pulled a gun on him. Appellant’s brief at 25.

Therefore, Appellant maintains that the Commonwealth committed a violation

of Brady v. Maryland, 373 U.S. 83 (1963), and the charges should have

been dismissed. See Pa.R.Crim.P. 573(E) (providing the court may impose a

remedy it deems just for a discovery violation).

         The trial court offered the following response to Appellant’s claim of

error:

                This court found that the claim that there were ten fired
         casings at the crime scene was an approximation by some of the
         officers and that crime scene officers had provided a true and
         correct detailed report, which pictured all of the evidence
         recovered at the scene, including nine spent casings and three
         copper and/or lead fragments and that no fired casing was
         concealed from [Appellant].     As such there was no Brady
         violation.

Trial Court Opinion, 5/8/18, at 14.

         The trial court’s findings are supported by the record. See N.T. Trial,

9/6/17, at 49-52 (Officer Brian Stark testifying that nine fired cartridge

casings and three bullet fragments were recovered from the scene); N.T. Trial,

9/7/17 (Captain Scott Dressel testifying that he recalled seeing ten casings at

the scene, but nine versus ten confusion was explained by fact that he did not

look to confirm that they were casings rather than bullet fragments); N.T. Trial

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9/8/17, at 147 (Officer Christopher McGraw testifying that he thought there

were at least ten casings on the ground at the scene, but some could have

been fragments). Moreover, there is no indication in the record that anyone

but Appellant fired a weapon at the scene. Indeed, Appellant himself testified

that he was the only one who fired a gun that night. N.T. Trial, 9/8/17, at

100.    Accordingly, Appellant has not demonstrated that the trial court

committed reversible error in denying his motion to dismiss.

       Finally, Appellant argues that the trial court erred in not charging the

jury as to involuntary manslaughter. He claims that the trial court erred in

determining the charge was not warranted, because it looked at the evidence

in the light most favorable to the Commonwealth rather than in that most

favorable to the defendant. Appellant’s brief at 16.

       “Our 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. Cannavo, 199 A.3d 1282, 1286 (Pa.Super. 2018) (cleaned up).

       The only reference to a request by Appellant for a jury instruction on

involuntary manslaughter is the following: “I would ask you to charge with

involuntarily manslaughter on both ends, both under the heat of passion,

which is logical under the evidence, and under self-defense.”       N.T. Trial,

9/8/17, at 122.




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       The Pennsylvania Rules of Criminal Procedure provide, in relevant part,

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).   “[T]he mere submission and

subsequent denial of proposed points for charge that are inconsistent with or

omitted from the instructions actually given 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. Pressley, 887 A.2d 220,

225 (Pa. 2005).

       The trial court instructed the jury as to voluntary manslaughter, but not

involuntary.   3   However, there is no indication in the record that Appellant

raised a specific objection to the absence of the involuntary manslaughter

charge at any time before the trial concluded, let alone before the jury began

deliberations. Therefore, Appellant’s final claim of error is waived.

       Judgment of sentence affirmed.




____________________________________________


3 As discussed above, heat of passion and self defense warrant a charge of
voluntary manslaughter. Compare 18 Pa.C.S. § 2503, with 18 Pa.C.S.
§ 2504(a) (“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.”). As such, the trial court “believed that
counsel misspoke and was requesting a charge for voluntary manslaughter,”
and gave that instruction. Trial Court Opinion, 5/8/18, at 10.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/19




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