J-S46014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK S. EDWARDS                            :
                                               :
                       Appellant               :   No. 127 EDA 2018

            Appeal from the Judgment of Sentence August 18, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008169-2015


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                        FILED NOVEMBER 20, 2019

        Anthony Ransome1 was a patron at a club known as “Club Cali” located

on Germantown Avenue in Philadelphia on the night of June 5, 2015. Ransome

was eventually approached by a security guard, Mark Edwards, the Appellant

herein, because of what Edwards found to be rude conduct exhibited by

Ransome. Later in the evening, Edwards shot Ransome twice. Ransome was

taken to a local hospital; however, he died from complications from the two

gunshot wounds twenty days later.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Ransome’s last name is spelled either “Ransom” or “Ransome” in various
documents in the record. For consistency, we will use “Ransome,” as it is the
spelling more frequently utilized in the record.
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        Edwards was subsequently arrested and charged with third degree

murder,2 voluntary manslaughter committed in the unreasonable belief that

the killing was justifiable,3 and possessing instruments of crimes.4 On

December 16, 2016, a jury found Edwards guilty of voluntary manslaughter

and possessing an instrument of crime. On August 18, 2017, the court

sentenced Edwards to serve an aggregate term of imprisonment of ten to

twenty-five years, with credit for time served.

        Trial counsel filed a post-sentence motion on August 28, 2017.5 The

motion was denied by operation of Pa.R.Crim.P. 720(b)(3)(c) on December

27, 2017. Appellate counsel filed a timely notice of appeal.

        On direct appeal, Edwards contends that (1) the evidence was

insufficient to sustain the jury's verdict, (2) the verdict was against the weight

of the evidence, (3) the trial court erred in instructing the jury on self-defense,

(4) the sentence was unduly harsh and excessive, and (5) that the trial court

committed error in failing to provide a jury instruction on involuntary

manslaughter. The issues challenging the trial court’s jury instructions have


____________________________________________


2   18 Pa.C.S.A. § 2502(c).

3   18 Pa.C.S.A. § 2503(b).

4   18 Pa.C.S.A. § 907.

5 The certified record from the trial court indicates that newly retained
appellate counsel also filed a post-sentence motion; however, it was not time-
stamped. In any event, the Order of December 27, 2017, denied and
dismissed all post-sentence motions.

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not been preserved for direct appellate review.      We find no merit in the

remaining arguments, and therefore affirm the judgment of sentence.

     The underlying facts were aptly summarized by the trial court:

               On June 5, 2015, at 12:33 a.m., while on routine
         patrol, 39th District Police Sergeant Matthew Palouian
         witnessed numerous people pouring out of Cali Club at
         3718 Germantown Avenue, one of whom notified him that
         someone had just been shot. As the Sergeant continued to
         drive towards the club, he observed the victim, Anthony
         Ransome slumped over a vehicle and unable to move. The
         victim was promptly taken to Temple University Hospital in
         a private vehicle.

                Ransome had been shot during the course of an
         altercation with [Edwards] who was working as a security
         officer inside the club. [Edwards] was armed with a loaded
         Glock handgun. [Edwards] admonished Ransome and his
         friend for their treatment of one of the club’s dancers. This
         led to a fistfight between [Edwards] and Ransome. Staff
         and other bouncers broke up the fight within a minute.

                After the first fight had concluded, Ransome walked
         over to [Edwards]. During testimony, [Edwards] identified
         himself and Ransome on the video surveillance from the
         club that night. The video shows [Edwards’s] legs above
         Ransome’s on a staircase, then two seconds later it shows
         Ransome with his arms up, having been shot, and also
         shows people reacting. A few seconds later, the video
         shows Ransome hunched over at the bottom of the steps,
         while [Edwards] and another man wrestle, and that man
         hits [Edwards] in the face. The other man held [Edwards]
         down, holding his gun to the floor, hitting him and trying
         to take the gun. Mr. Johnson, the bar manager, helped to
         take [the] gun from [Edwards], gave it to the security
         supervisor, and told him to handcuff [Edwards]. Police
         officers recovered two bullet shell casings inside the club.
         Ransome died twenty days later after surgery and other
         treatments failed.

              A post-mortem examination was conducted on the
         remains of the decedent by Dr. Gulino.   Dr. Gulino

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            determined that the cause of death was complications from
            the two gunshot wounds to the chest and abdomen.

Opinion, 8-30-18, at 2-3 (transcript references omitted).

                          1. Sufficiency of the Evidence

      At their essence, Edwards’s first two arguments are based upon his

belief that he shot Ransome in justifiable self-defense. Based upon this belief,

he argues the evidence was insufficient to support either his conviction for

voluntary manslaughter or his conviction for possession of an instrument of

crime. When we review a challenge to the sufficiency of the evidence, we:

            must view the evidence and all reasonable inferences to be
            drawn from the evidence in the light most favorable to the
            Commonwealth as verdict winner, and we must determine
            if the evidence, thus viewed, is sufficient to prove guilt
            beyond a reasonable doubt. This Court may not substitute
            its judgment for that of the factfinder. If the record
            contains support for the verdict, it may not be disturbed.

            Moreover, a jury may believe all, some or none of a party's
            testimony.

Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2000) (citations

omitted).

      Our Supreme Court has explained:

            To prevail on a justification defense, there must be
            evidence that the defendant “(a) ... reasonably believed
            that he was in imminent danger of death or serious bodily
            injury and that it was necessary to use deadly force against
            the victim to prevent such harm; (b) that the defendant
            was free from fault in provoking the difficulty which
            culminated in the slaying; and (c) that the [defendant] did
            not violate any duty to retreat.”




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Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (citations

omitted). “[A] defendant's subjective state of mind does not establish the

objective factor of the reasonableness of his belief.” Id. at 1125.

      Where there is a claim of self-defense, the Commonwealth has the

burden to prove beyond a reasonable doubt that the killing was not committed

in self-defense.

         In order to disprove self-defense, the Commonwealth must
         prove beyond a reasonable doubt one of the following
         elements: ... that the defendant did not reasonably believe
         it was necessary to kill in order to protect himself against
         death or serious bodily harm, or that the defendant used
         more force than was necessary to save himself from death,
         great bodily harm, or the commission of a felony
         .... See 18 Pa.C.S.A. § 505(b)(2). If the Commonwealth
         establishes any one of these three elements beyond a
         reasonable doubt, then the conviction is insulated from a
         defense challenge to the sufficiency of the evidence where
         self-protection is at issue.

Burns, 765 A.2d at 1149-1150 (some citations omitted).

      In rejecting Edwards’s contention that the Commonwealth did not

disprove his self-defense claim, the trial court noted that the jury had more

than sufficient evidence to conclude that his belief was not reasonable. First,

the evidence proved that Edwards knew that Ransome had been searched

before entering the club and was not armed. See N.T., 12/13/16, at 55

(Edwards testifying that he was hired “to do pat down and be I.D.ing people”).

Second, the surveillance video discredited much of Edwards’s testimony. See

N.T., 12/8/16 at 120-12, 194; N.T., 12/14/16, at 28-29. In light of the fact

that two other security guards and the bar manager had broken up the first

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fight between Edwards and Ransome in less than one minute, see N.T.,

12/8/16 at 190-192, Edwards’s statements of his fear of Ransome at the

outset of the second altercation was not credible. Furthermore, the video

contradicted Edwards’s testimony that Ransome tried to grab his firearm;

rather, the video showed the jury that Edwards and Ransome stood for about

two seconds on the staircase, and then almost immediately thereafter

Ransome was shot. See id., at 194.

      Accordingly, we are not persuaded that the Commonwealth presented

insufficient evidence to disprove that Edwards acted in reasonable self-

defense. While it is possible Edwards subjectively believed the shooting was

justified in self-defense, the evidence need only support a finding that

Edwards’s belief was unreasonable in order to sustain the conviction. The trial

court accurately relates the reasonable inferences from the evidence that

support the jury’s verdict:

         Where [Edwards] knows himself to be armed, and knows
         the club searches all patrons to prevent them from bringing
         weapons inside, where other guards and employees broke
         up a previous fight in less than a minute, and where
         [Edwards] fired his weapon within seconds of Ransome’s
         approach, [Edwards’s] belief that he needed to use deadly
         force to protect himself was not reasonable.

Opinion, 8-30-18, at 5-6. Viewing the evidence in the light most favorable to

the Commonwealth, both direct and circumstantial, we hold there was

sufficient evidence to prove beyond a reasonable doubt that Edwards was not

acting in reasonable self-defense.


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      In a related argument, Edwards asserts the evidence was insufficient to

sustain his conviction for possessing an instrument of crime. To sustain a

conviction for possessing an instrument of crime, the Commonwealth must

prove that the defendant possessed an “instrument of crime with the intent to

employ it criminally.” 18 Pa.C.S.A. § 907(a). Using the same argument

utilized in his challenge to his conviction for voluntary manslaughter, Edwards

contends the evidence is insufficient to establish he used his gun with the

intent to employ it criminally.

      For the same reasons we rejected Edwards’s challenge to his voluntary

manslaughter conviction, we reject his challenge to the sufficiency of the

evidence to establish he intended to use his gun criminally. The evidence was

sufficient to allow the jury to find that Edwards’s subjective belief that he

needed to use deadly force to defend himself was objectively unreasonable.

                         2. Weight of the Evidence

      Edwards next claims that his convictions for voluntary manslaughter and

possessing an instrument of crime were against the weight of the evidence.

          A true weight of the evidence challenge ‘concedes that
          sufficient evidence exists to sustain the verdict’ but
          contends that the verdict was against the weight of the
          evidence.” An appellate court may review the trial court's
          decision to determine whether there was an abuse of
          discretion, but it may not substitute its judgment for that
          of the lower court. Credibility issues are decided by the
          jury and appellate courts rarely overturn jury factual
          findings     that     are      based       on     credibility
          determinations. Indeed, an appellate court should not
          entertain challenges to the weight of the evidence since
          our examination is confined to the “cold record.” Our Court

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          may not reverse a verdict unless it is so contrary to the
          evidence as to shock one's sense of justice. Thus, we are
          confined to review if the trial court abused its discretion.

Burns, 765 A.2d at 1149-50 (Pa. Super. 2000) (citations omitted). It is well

settled that a jury is free to believe all, part or none of the evidence presented

and to evaluate the credibility of the witnesses. See Commonwealth v.

Ellison, 213 A.3d 312, 319 (Pa. Super. 2019).

      Edwards's assertion that the “dispositive video surveillance” supported

his self-defense theory contradicts the jury’s role in assessing the evidence

and the function of the trial court in evaluating the weight issue. His

suggestion that this Court ignore the trial court’s decision and displace the

jury's findings with our own interpretation of the video is misplaced. The jury

was free to conclude that Edwards’s asserted belief, that killing the victim was

justifiable self-defense, was not objectively reasonable. The trial court

specifically found that “the testimony of the witnesses combined with the video

surveillance reliably demonstrated (Edwards’s) guilt.” Opinion, 8-30-18, at 7.

We find no error, and determine that the trial court properly denied Appellant's

weight claim.

                      3. Claim of Excessive Sentence

      Next, Edwards claims the court abused its discretion by imposing an

excessive    sentence.    “A    challenge    to   the    discretionary    aspects

of sentence must be considered a petition for permission to appeal, as the

right to pursue such a claim is not absolute.” Commonwealth v. Lamonda,


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52 A.3d 365, 371 (Pa. Super. 2012) (en banc) (citation omitted). Thus, before

we may consider the merits of Edwards’s sentencing issue, he “must invoke

this Court's jurisdiction by satisfying a four-part test.” Commonwealth v.

Moury, 992 A.2d 162 (Pa. Super. 2010). The test is:

            (1) the appellant preserved the issue either by raising it at
            the time of sentencing or in a post[-]sentence motion; (2)
            the appellant filed a timely notice of appeal; (3) the
            appellant set forth a concise statement of reasons relied
            upon for the allowance of appeal pursuant to Pa.R.A.P.
            2119(f); and (4) the appellant raises a substantial question
            for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible     argument        that     the sentence violates    a   provision    of

the sentencing code      or    is    contrary   to   the   fundamental   norms   of

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268

(Pa. Super. 2013) (citations omitted).          “Only if the appeal satisfies these

requirements may we proceed to decide                  the substantive merits of

Appellant's claim.” Commonwealth v. Luketic, 162 A.3d 1149, 1159-60

(Pa.Super. 2017).

      Herein, Edwards timely filed an appeal with this Court. Prior to the

appeal, as stated above, there were two post-sentence motions filed. The one

filed by trial counsel did not raise any issue regarding sentencing. That motion

was time-stamped by the Office of Judicial Records on August 28, 2017. The




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other post-sentence motion was filed by appellate counsel but is not time-

stamped. In relation to sentencing issues, it states:

           PETITIONER APPEALS THE DISCRETIONARY ASPECT OF
           SENTENCING

           10. This Honorable Court purported to sentence within the
           sentencing guidelines but applied the guidelines
           erroneously; sentenced within the sentencing guidelines
           but the case involves circumstances where the application
           of the guidelines would be clearly unreasonable or
           sentenced outside the sentencing guidelines and the
           sentencing is unreasonable.

In his Statement of Matters Complained Of On Appeal, filed pursuant to

Pa.R.A.P. 1925(b) on February 28, 2018, Edwards states, in paragraph 3: “The

Court abused its discretion in sentencing the appellant to an unduly harsh and

excessive sentence by failing to consider Appellant’s mental health issues.”

      There is no concise statement of reasons relied upon for the allowance

of appeal, pursuant to Pa.R.A.P. 2119(f), in the Appellant’s Brief. However,

the Commonwealth has not objected to this absence. We therefore will not

find that Edwards has waived this claim. See Commonwealth v. Antidormi,

84 A.3d 736, 759 (Pa. Super. 2014).

      The existence of a substantial question must be determined on a case-

by-case basis. See Commonwealth v. Cruz-Centeno, 447 Pa.Super. 98,

668 A.2d 536, 545 (1995). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge's actions

were either: (1) inconsistent with a specific provision of the Sentencing Code;

or   (2)     contrary   to   the   fundamental     norms     which     underlie

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the sentencing process.” Commonwealth v. Glass, 50 A.3d 720, 727

(Pa.Super. 2012) (citations and internal quotation marks omitted).

      In the absence of a Rule 2119(f) Statement, we have reviewed

Edwards’s brief and find on page 31 that he basically argues that the trial

court failed to recognize mitigating factors, such as his mental health issues,

in fashioning an appropriate sentence.         We conclude that Edwards has

presented a substantial question, and we will address the merits of his

contention. See Commonwealth v. Caldwell, 117 A.3d 763, 769-70

(Pa.Super. 2015) (en banc) (excessive sentence claim in conjunction with an

assertion that the court failed to consider mitigating factors raises a

substantial question). On the merits, however, applying our deferential

standard of review, we find no abuse of discretion.

      Our standard of review concerning challenges to the discretionary

aspects of one's sentence provides that:

            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.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005) (citation

omitted).




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      In this case, prior to imposing its sentence on August 18, 2017, the trial

court made sure that the Appellant and his counsel had reviewed the entire

presentence investigation report (PSI).       See N.T., 8/18/17, at 6-8. In

Edwards’s presence, his attorney informed the trial court that he had no

corrections to the PSI. See id. at 8-9. The trial court heard from members of

Edwards’s family including his stepfather, Kevin Carter, his brother, Justin

Dixon, and his mother, Sabrina Carter. See id., at 11-17.

      The Commonwealth moved into the record C-1, which included

Edwards’s most recent mental health evaluation. See id., at 18. Edwards

exercised his opportunity for allocution. See id., at 25-26. The trial court then

stated its reasons for imposing it sentence on the record, including provisions

for mental health treatment. See id., at 26-30.

      At sentencing and in its Opinion filed on August 30, 2018, the trial court

stated that it had taken into account the guidelines but found an aggravating

factor in a video taken of Edwards at the Homicide Unit, which demonstrated

that he was going to try to fake a more serious mental health condition to

avoid prison. See Trial Court Opinion, 8/30/18 at 8; N.T., 8/18/17 at 26-27,

29.

      Despite Edwards’s assertions, we conclude that the trial court reviewed

the PSI and set forth proper reasons for sentencing Edwards in the aggravated

range. Given our deferential standard of review when considering a challenge

to the discretionary aspects of sentencing, it would be inappropriate for us to


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second-guess the trial court's weighing of the appropriate factors, for we

cannot substitute our view of aggravating and mitigating factors with those of

the trial court, nor may we reweigh those mitigating factors which Appellant

thinks the sentencing judge overlooked. See Commonwealth v. Marts, 889

A.2d 608, 612 (Pa.Super. 2005). Accordingly, Edwards has not persuaded us

that an abuse of discretion occurred.

        4. Self-Defense and Involuntary Manslaughter Instructions

      Edwards contends the trial court gave a confusing instruction on self-

defense by not making sure the jury understood that it applied to third degree

murder and voluntary manslaughter. Specifically, Edwards argues the court

neglected   to   mention   voluntary    manslaughter   after   the   self-defense

instruction. Edwards concludes this Court should vacate the judgment of

sentence and order a new trial. Edwards also argues that the trial court

committed reversible error by not instructing the jury on involuntary

manslaughter. We find neither issue has not been preserved for review on

direct appeal.

      Our rules of appellate procedure provide that “[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a). To preserve a challenge to the adequacy or omission of a

particular jury instruction, the defendant must make a specific and timely

objection to the instruction at trial before the jury deliberates.           See

Commonwealth v. Smith, 206 A.3d 551, 564 (Pa. Super. 2019); see also


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Pa.R.A.P. 302(b) (“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.”); Pa.R.Crim.P. 647(C) (“No 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.”). A specific

and timely objection must be made to preserve a challenge to a particular jury

instruction; failure to do so results in waiver. See Commonwealth v.

Forbes, 867 A.2d 1268, 1274 (Pa.Super.2005).

      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. See

Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010); see also

Commonwealth v. Smallhoover, 567 A.2d 1055, 1059 (1989) (holding

claim of erroneous charge waived where appellant responded negatively when

“the court inquired whether counsel had any additions or corrections to the

charge”).

      Here, there was no objection or correction made to the jury charge. See

N.T., 12/14/16, at 34. Further, the defense responded in the negative when

the trial court asked if either side wished to address the court after the jury

charge. See id.




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       Moreover, this issue regarding the self-defense instruction was not

included in either of the post-sentence motions filed on Edwards’s behalf.6

After review of the foregoing, we conclude that Edwards waived this issue.

Trial counsel had an opportunity to raise his objection before the jury

deliberated but he did not. Accordingly, Edwards’s challenge to the jury

instruction is waived. See Moury, 992 A.2d at 178.

       Edwards also argues the trial court erred by not instructing the jury on

involuntary manslaughter. Initially, we note that this was not raised at the

time of trial, and, as mentioned previously, Edwards did not object after the

trial court concluded its instructions. Secondly, this issue was not included in

the Rule 1925(b) Statement.

       “In order to preserve an issue for review, a party must make a timely

and specific objection.”       Commonwealth v. Duffy, 832 A.2d 1132, 1136

(Pa. Super. 2003). Additionally, “an appellant's failure to include an issue in a

1925(b) statement generally precludes us from reviewing that issue on

appeal.”    Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998); see also

Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002).

       Therefore, we find these last two issues raised by Edwards to have been

waived for purposes of direct appellate review.


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6 Including an issue in a Statement of Matters Complained of, filed under
Pa.R.A.P. 1925, does not resurrect an issued waived in earlier proceedings.
See Commonwealth v. Williams, 900 A.2d 906, 909 (Pa. Super. 2006).


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/19




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