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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J-A09043-20


     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.

                                   -2-
J-A09043-20


     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.]


                                   -3-
J-A09043-20


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.




                                        -4-
J-A09043-20


      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


                                    -5-
J-A09043-20


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).)”

                                     -6-
J-A09043-20


      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.

                                     -7-
J-A09043-20


      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.


                                    -8-
J-A09043-20


      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

                                     -9-
J-A09043-20


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.”).

                                      - 10 -
J-A09043-20


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




                                     - 11 -
J-A09043-20


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

                                       - 12 -
J-A09043-20


      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.

                                    - 13 -
J-A09043-20


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,


                                          - 14 -
J-A09043-20


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.




                                       - 15 -
J-A09043-20


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?

                                       - 16 -
J-A09043-20


      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)

                                        - 17 -
J-A09043-20


      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.

                                                 - 18 -
J-A09043-20


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.

                                    - 19 -
J-A09043-20


      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



                                    - 20 -
J-A09043-20


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


                                     - 21 -
J-A09043-20


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’


                                    - 22 -
J-A09043-20


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).

                                      - 23 -
J-A09043-20


      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

                                     - 24 -
J-A09043-20


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

                                     - 25 -
J-A09043-20


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




                                  - 26 -
