J-A10030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LARRY RAY YAW JR.,                         :
                                               :
                       Appellant               :   No. 1481 EDA 2018

             Appeal from the Judgment of Sentence April 16, 2018
                In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0001980-2016


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                    FILED JUNE 19, 2019

       Larry Ray Yaw, Jr., appeals from the judgment of sentence imposed on

April 16, 2018, in the Court of Common Pleas of Lehigh County, following his

jury conviction of one count each of murder in the first degree, burglary,

kidnapping to facilitate a felony, and kidnapping to inflict injury or terror.1 The

trial court sentenced him to life without parole to be followed by an aggregate

term of incarceration of 10 to 20 years’ imprisonment.           On appeal, Yaw

challenges: (1) the display of autopsy photographs to the jury; (2) the trial

court’s refusal to charge the jury on voluntary manslaughter; and (3) the trial




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1  18 Pa.C.S.A. §§ 2502(a), 3502(a)(1), 2901(a)(2), and 2901(a)(3),
respectively.
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court’s refusal to accept a negotiated guilty plea agreement. Based upon the

following, we affirm.

      In its opinion, the trial court aptly sets forth the underlying factual and

procedural history in this matter. See Trial Court Opinion, 6/5/2018, at 1-15.

We briefly note that, on April 3, 2016, following an argument with his girlfriend

over her drug use and infidelity, Yaw kidnapped her, beat her until she

revealed the location of the man she slept with, and sexually assaulted her.

Yaw subsequently drove to the residence of the man, Brian Frank, broke into

his apartment, shot through Frank’s bedroom door, and beat him to death

with a baseball bat. See id.

      Both Yaw and the Commonwealth agree that, on February 26, 2018, a

meeting took place in which they apprised the trial court of a possible plea

agreement. See Trial Court Opinion, 6/5/2018, at 18-19; Yaw’s Brief, at 3;

the Commonwealth’s Brief, at 16. They also agree that the trial court indicated

that it would not accept the plea agreement. See id.

      A jury trial took place in early March 2018. During the guilt phase of

the trial, Yaw argued both that he lacked the intent to kill Frank and that he

acted in the heat of passion, and he requested that the trial court charge the

jury on voluntary manslaughter. See N.T. Trial, 3/05/2018, at 38; N.T. Trial,

3/08/2018, at 37, 48-49. The trial court refused. See N.T. Trial, 3/08/2018,

at 37. During the testimony of the Commonwealth’s forensic pathologist, Dr.

Barbara Bollinger, approximately nineteen autopsy photos showing the extent


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of Frank’s injuries were introduced into evidence and reviewed by the jury.

See N.T. Trial, 3/06/2018, at 162-195.

       On March 8, 2018, the jury convicted Yaw of the aforementioned

offenses.    On March 9, 2018, following a penalty phase hearing, the jury

imposed a life sentence on the charge of murder in the first degree. On April

16, 2018, the trial court sentenced Yaw as delineated above. The instant,

timely appeal followed.2,    3



       In his first claim, Yaw contends that the trial court erred in allowing the

Commonwealth to introduce and place into evidence the nineteen autopsy

photos. Yaw’s Brief, at 5-6. Our standard of review is settled.

       We will affirm a trial court’s admission of photographs absent an
       abuse of discretion. Further,

              When considering the admissibility of photographs of
              a homicide victim, which by their very nature can be
              unpleasant, disturbing, and even brutal, the trial court
              must engage in a two-step analysis:

                     First a [trial] court must determine
                     whether the photograph is inflammatory.
                     If not, it may be admitted if it has
                     relevance and can assist the jury’s
____________________________________________


2 In response to the trial court’s order, Yaw filed a timely concise statement
of errors complained of on appeal. On June 5, 2018, the trial court issued an
opinion.

3Despite this court granting him two extensions of time, counsel for Yaw filed
his brief approximately two weeks late. On September 14, 2018, Yaw, acting
pro se, sent a series of documents to this Court, claiming ineffective assistance
of counsel. See Defendents (sic) Letter to all Parties Stating Facts for Record,
9/04/2018, at unnumbered pages 1-2.


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                  understanding of the facts.        If the
                  photograph is inflammatory, the trial
                  court must decide whether or not the
                  photographs are of such essential
                  evidentiary value that their need clearly
                  outweighs the likelihood of inflaming the
                  minds and passions of the jurors.

Commonwealth v. Johnson, 42 A.3d 1017, 1033-1034 (Pa. 2012) (citations

omitted), cert. denied, 569 U.S. 922 (2013).

      Yaw’s brief argument is undeveloped, as it consists largely of boilerplate

language on the admissibility of photographs. Yaw’s Brief, at 5-6. The last

four sentences of this section of his brief are bald and conclusory statements

that, since the manner of death was not at issue, the admission of the

photographs was unnecessary and prejudicial. Id. at 6. Yaw does not point

to any legal support for his claim that the “sheer volume of the photographs

make the admission of [them] prejudicial[,]” id. at 5, nor does Yaw explain

how the prejudicial value of the evidence outweighed its probative value.

See id. at 5-6.      Furthermore, as the Commonwealth discusses, see

Commonwealth’s Brief, at 21, at defense counsel’s request, the trial court

instructed the jury as follows:

      Autopsy photographs will be admitted into evidence for the
      purpose of showing the nature of the wounds received by Mr.
      Frank and to help you understand the testimony of Dr. Bollinger
      who will be referring to them.

      They are very unpleasant to look at. You should not let it stir up
      your emotions to the prejudice of the defendant.

      Your verdict must be based on a rational and fair consideration of
      all of the evidence and not on passion or prejudice against the

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      defendant, the Commonwealth, or anyone connected with this
      crime.

N.T. Trial, 3/06/2018, at 149-150. “The law presumes the jury will follow the

instructions of the court.” Commonwealth v. Conte, 198 A.3d 1169, 1178

(Pa. Super. 2018) (citation omitted), appeal denied, 2019 WL 1649032 (Pa.

Apr. 17, 2019). Yaw does not explain why this instruction was inadequate

and does not point to anything that would indicate that the jury failed to follow

the court’s instruction. Yaw’s first claim fails.

      In his second claim, Yaw contends that the trial court erred in failing to

charge the jury on voluntary manslaughter. Yaw’s Brief, at 6-7. Again, Yaw’s

claim is undeveloped and lacking in merit.

      We briefly note:

      In reviewing a jury charge, we determine whether the trial court
      committed a clear abuse of discretion or an error of law which
      controlled the outcome of the case. We must view the charge as
      a whole; the trial court is free to use its own form of expression
      in creating the charge. 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. Moreover, it is well-settled that the trial
      court has wide discretion in fashioning jury instructions. The trial
      court is not required to give every charge that is requested by the
      parties[,] and its refusal to give a requested charge does not
      require reversal unless the appellant was prejudiced by that
      refusal.

Commonwealth v. Williams, 176 A.3d 298, 314 (Pa. Super. 2017)

(quotation marks and citations omitted), appeal denied, 187 A.3d 908 (Pa.

2018).




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      Here, Yaw’s argument suffers from the same inadequacies discussed

above. The argument is all but devoid of legal citation, consisting of a single

citation to boilerplate language on jury instructions and a listing of the

statutory elements of voluntary manslaughter. Yaw’s Brief, at 6-7.

      In its opinion, the trial court aptly discusses this claim as follows:

      Next, [Yaw] argues that [the trial c]ourt erred in denying the
      defense request to instruct the jury on the charge of [v]oluntary
      [m]anslaughter. As the Supreme Court of Pennsylvania has
      articulated, “[a] voluntary manslaughter instruction is warranted
      only where the offense at issue and the evidence would support
      such a verdict. To support a verdict for voluntary manslaughter,
      the evidence would have had to demonstrate that, at the time of
      the killing, appellant acted under a sudden and intense passion
      resulting from serious provocation by the victim. If any of these
      be wanting — if there be provocation without passion, or passion
      without a sufficient cause of provocation, or there be time to cool,
      and reason has resumed hits sway, the killing will be murder.”
      Commonwealth v. Sanchez, 82 A.3d 943, 979-980 (Pa. 2013)
      (citations omitted)[, cert. denied 135 S.Ct. 154 (2014).
      Furthermore, “[a]n objective standard is applied to determine
      whether the provocation was sufficient to support the defense of
      . . voluntary manslaughter. The ultimate test for adequate
      provocation remains whether a reasonable man, confronted with
      this series of events, became impassioned to the extent that his
      mind was incapable of cool reflection.” Commonwealth v.
      Miller, 987 A.2d 638, 649-650 (Pa. 2009).

      In the within matter, there was absolutely no provocation from
      the victim. Indeed, when [Yaw] encountered Mr. Frank, he was
      sleeping in his bed in Whitehall Township. Instead, [Yaw] alleged
      that the provocation stemmed from [his girlfriend] when she
      allegedly claimed that the victim had raped her. However, [the
      trial c]ourt notes that this alleged statement would have occurred
      when [Yaw] was with [his girlfriend] at their residence located at
      1924 Big Road, Gilbertsville, Montgomery County. Then, allegedly
      armed with this knowledge, [Yaw] drove a half an hour away to
      Mr. Frank’s apartment located at 927 Third Street, Whitehall,
      Lehigh County, with a gun and a baseball bat in his possession.
      During this time frame, [Yaw] had ample time to calm down and

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     reflect on his actions. Regardless of the lapse of time negating
     provocation and heat of passion, the evidence admitted at trial
     through the telephone calls placed by [Yaw] while he was
     incarcerated in the Lehigh County Jail demonstrated that [Yaw]
     believed that [his girlfriend] was pregnant with his child and that
     he was angry that she was doing drugs. [Yaw] failed to maintain
     his allegation that [his girlfriend] was raped by the victim.[a]
     Therefore, [Yaw’s] argument that the provocation stemmed from
     [his girlfriend] is baseless.

           [a] Specifically, on April 23, 2016, [Yaw] indicated that
           he snapped when he heard that [his girlfriend] was
           pregnant: “When she told me she was pregnant is
           when I snapped. That’s when I snapped.” Also, on
           May 3, 2016, [Yaw] stated on the telephone that he
           was “in jail for standin up for what’s fuckin right. I
           don’t give a fuck if it was that whore or different fuckin
           whore. You’re not gonna give dope to my pregnant
           fuckin girlfriend.” Then, on May 14, 2016, [Yaw]
           recounted the events and spoke of [his girlfriend]
           being high, but not raped: “I came home and she was
           fuckin high. And that’s when I took her phone and
           said, who the fuck gave you heroin?” . . . So, I fuckin,
           I, like, I sat her down and she’s like I’m pregnant and
           then, that's when I snapped. That’s when I said,
           you’re pregnant with my fucking kid and you’re
           shooting fucking dope? Like, how did you even get
           the fuckin dope? . . . I smack her, what are you fuckin
           the dude? And [she] said, yea, I’m fuckin him. And I
           said, yeah, I got somein for your fuckin ass and I put
           her down on the fuckin tarp, put a gun to her fuckin
           head and I couldn’t shoot her. . . . and then fuckin I
           got her up and I was, I was like, I can’t hurt you, I
           love you. I don’t wanna hurt you. And then fuckin,
           immediately snapped, dude. Couldn’t get outta that
           line of thinkin. . . . This guy gave her fuckin heroin.
           This guy . . . shot her full of fuckin heroin which coulda
           killed her and my baby.” This version of events closely
           tracked [his girlfriend’s] testimony at trial.

     Nevertheless, counsel for [Yaw] argued that the question of
     whether the evidence indicated sufficient provocation to support
     a voluntary manslaughter defense should have gone to the jury.
     However, “a trial court must make an initial determination

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      whether sufficient evidence has been presented of serious
      provocation.” Commonwealth v. Carter, 502 Pa. 433, 466 A.2d
      1328 (1983) (where the evidence does not support a finding of
      manslaughter, the trial court did not have to support the issue to
      the jury). Thus, based on the evidence presented at trial, [the
      trial c]ourt found that objectively there was no provocation.
      Therefore, as the record did not reflect a sufficient cause of
      provocation, [it] appropriately did not provide a charge for
      voluntary manslaughter.

Trial Court Opinion, 6/5/2018, at 16-18.

      Here, Yaw does not cite to any legal authority to support his claim that

he was entitled to an instruction on voluntary manslaughter and fails to

address or refute the trial court’s explanation of its decision not to give the

requested charge. See Yaw’s Brief, at 6-7. Thus, Yaw’s claim fails.

      In his final claim, Yaw maintains that the trial court erred in rejecting a

proposed plea agreement. Yaw’s Brief, at 8-9. We have stated:

      The Pennsylvania Rules of Criminal Procedure grant the trial court
      broad discretion in the acceptance and rejection of plea
      agreements. There is no absolute right to have a guilty plea
      accepted. Accordingly, our Courts have reaffirmed that [w]hile
      the Commonwealth and a criminal defendant are free to enter into
      an arrangement that the parties deem fitting, the terms of a plea
      agreement are not binding upon the court. Rather the court may
      reject those terms if the court believes the terms do not serve
      justice. As these holdings make apparent, the Commonwealth’s
      offer of plea, even if accepted by the defendant unequivocally,
      does not dispose of a criminal prosecution; indeed, the plea
      bargain is of no moment until accepted by the trial court.

Commonwealth v. Chazin, 873 A.2d 732, 737 (Pa. Super. 2005) (quotation

marks and citations omitted), appeal denied, 887 A.2d 1239 (Pa. 2005).

      As discussed supra, the parties all agree that, on February 26, 2018,

there was a pre-trial meeting where they discussed the proposed plea

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agreement and the trial court indicated in some manner that it was not willing

to accept it. However, there is nothing in the certified record documenting

this conversation. Moreover, there has been no attempt to provide this Court

with a recreation of that discussion. See Pa.R.A.P. 1923.

       “[W]e can only repeat the well established principle that ‘our review is

limited to those facts which are contained in the certified record’ and what is

not contained in the certified record ‘does not exist for purposes of our

review.’” Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008),

(quoting    Commonwealth           v.   O’Black,   897   A.2d   1234,   1240   (Pa.

Super.2006)).      Moreover, “it is the appellant’s burden to ensure that the

certified record is complete.” Commonwealth v. Landis, 89 A.3d 694, 698

n. 5 (Pa. Super. 2014) (citing Pa.R.A.P. 1921). Yaw’s final claim fails.4

       For all the foregoing reasons, we affirm Yaw’s judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/19/19


____________________________________________


4 Even if the certified record contained a transcript of the discussion, we would
still find the claim waived. Yaw’s argument on this issue, which consists of a
paragraph of boilerplate and two sentences of argument, is woefully deficient.
See Yaw’s Brief, at 8-9.

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