J-A31004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARK D. ROGERS,

                            Appellant                 No. 1203 EDA 2015


           Appeal from the Judgment of Sentence December 12, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002361-2013


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 10, 2017

        Appellant, Mark D. Rogers, appeals from the judgment of sentence of

an aggregate term of 25-50 years’ incarceration, imposed by the trial court

after a jury found Appellant guilty of third-degree murder and related

offenses.     In this appeal, Appellant alleges several trial court errors,

including a claim that the trial court erroneously refused to issue a jury

instruction on involuntary manslaughter. He also challenges the sufficiency

of the evidence supporting his conviction, claims his sentence was an abuse

of the trial court’s discretion, and asserts that the restitution portion of his

sentence was illegal. After careful review, we vacate Appellant’s judgment

of sentence and remand for a new trial.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A31004-16



     The trial court summarized the facts adduced at trial as follows:

           At trial, evidence was presented which[,] when viewed in
     the light most favorable to the Commonwealth as the verdict
     winner, established the following. On November 28, 2012, at or
     around 11:45 p.m., James Logan drove his 1999 red Chevrolet
     Cavalier to [Appellant]'s house at 5904 Pulaski Avenue. At some
     point, [Appellant] entered and sat on the passenger side of Mr.
     Logan's vehicle, removed a loaded .22 caliber handgun, and shot
     Mr. Logan once on the right side of his head. Mr. Logan's foot
     then slipped off the brake, causing the car to cruise past the
     intersection of Pulaski Avenue and Rittenhouse Street and hit a
     car parked on Rittenhouse Street. This accident blocked traffic
     and stopped the car Denessa Hardy and Shamae Purnell were
     inside. While stopped, the women observed a rocking motion
     inside the victim's vehicle, as if a violent dispute was in
     progress. As a result, Ms. Hardy called 911 twice. Ms. Hardy
     and Ms. Purnell later learned that the rocking motion was caused
     by [Appellant] dragging Mr. Logan's body to the rear of the
     vehicle.

            [Appellant] exited Mr. Logan's vehicle and entered his
     house where he left behind the gun used in the killing. When
     [Appellant] returned, he entered the driver side of Mr. Logan's
     vehicle and drove away. By that time, Officers Robert McCuen
     and John Terry had responded to the scene and began to pursue
     the vehicle. Realizing that police were behind him, [Appellant]
     increased his speed to over 70 miles per hour, and disregarded
     traffic signals in this residential neighborhood. The vehicle
     eventually fishtailed and crashed into a [vehicle] parked at
     Armat and Greene Streets.        After this accident, [Appellant]
     attempted to flee the scene. However, police were on both sides
     of the vehicle. When [Appellant] exited the driver side, he
     said[,] "You will have to fucking kill me[,]" and pushed away
     from Officers McCuen and Terry. Due to [Appellant]'s continued
     resistance, Officers McCuen and Terry requested additional
     assistance over police radio. It took approximately eight (8)
     responding police officers to subdue [Appellant].

            After [Appellant] was arrested, Officers Matthew Lally and
     Anthony Mooney approached the vehicle and observed Mr. Logan
     lying in the back seat with one gunshot wound on the right side
     of his head. Officers removed Mr. Logan from the vehicle, and
     Officer Brian Graves transported him to Temple University

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J-A31004-16


     Hospital, where he was pronounced dead on November 29, 2012
     at 9:40 p.m.

            Dr. Marlon Osborne conducted an autopsy of decedent and
     testified at trial as a forensic pathology expert. Dr. Osborne
     concluded to a reasonable degree of medical certainty that the
     cause of Mr. Logan's death was one gunshot wound to the right
     side of his head, and that the manner of death was homicide.
     Dr. Osborne stated that the gunshot wound was 9.8 centimeters
     below the top of Mr. Logan's head and 4.5 centimeters in front of
     his right ear opening. The bullet went through Mr. Logan's
     temporal muscle and temporal bone and entered his brain. The
     bullet caused lacerations to Mr. Logan's right cerebella
     hemisphere and right temporal lobe. Dr. Osborne stated that
     Mr. Logan likely lost all motor function and became immediately
     comatose as a result of this gunshot wound. Dr. Osborne
     observed stipple, but no soot on Mr. Logan's head. He stated
     that the presence of stipple and the lack of soot indicated that
     the gun was fired between one to three feet from decedent.
     During the autopsy, Dr. Osborne recovered a projectile from Mr.
     Logan's head and later submitted it to police.

           On November 29, 2012, at about 3:40 a.m., Police Officer
     Terrance Lewis arrived at Armat and Greene Streets and
     conducted a walkthrough of the scene.               After taking
     photographs, he recovered one .22 caliber fired cartridge casing
     from the passenger seat inside the red Chevrolet Cavalier. He
     later submitted this ballistics evidence to the Firearms
     Identification Unit for examination.       After [Appellant] was
     arrested, police obtained his biographical information and
     learned that he lived at 5904 Pulaski Avenue, where Mr. Logan's
     vehicle was initially parked.     Detective Donald Marano, the
     assigned investigator in this homicide case, obtained a search
     warrant for [Appellant]'s residence, where upon execution,
     Officers Lally and Mooney found a firearm on top of a radiator
     along the east wall of the living room. No other ballistics
     evidence was found inside [Appellant]'s residence. Officer Lewis
     assisted with the recovery of the firearm, and found the firearm
     was jammed. Officer Lewis swabbed the grip, magazine, and
     trigger area of the firearm for DNA and submitted the swabs to
     the criminalistics and DNA laboratory for analysis. The firearm
     was submitted to the Firearms Identification Unit for
     examination. At trial, the parties stipulated that [Appellant] did
     not have a valid license to carry a firearm under Section 6109 of
     the Crimes Code, 18 Pa.C.S. § 6109, or a valid sportsman

                                   -3-
J-A31004-16


     firearms permit under Section 6106(c) of the Crimes Code, 18
     Pa.C.S. § 6106(c).

            Ann Marie Barnes testified at trial as the Commonwealth's
     expert in firearms identification. Ms. Barnes examined the one
     projectile removed from decedent's body and one Federal .22
     caliber fired cartridge casing recovered from Mr. Logan's vehicle.
     She also examined the gun recovered from [Appellant]'s
     residence and described it as a Ruger semiautomatic pistol .22
     caliber long rifle that contained three live cartridges.        In
     examining the projectile recovered from Mr. Logan's body, Ms.
     Barnes observed that it was flat, distorted, and gouged.
     Although the projectile was unsuitable for microscopic
     comparison, Ms. Barnes concluded that the bullet was .22 caliber
     based on its weight. After examining the .22 caliber fired
     cartridge casing recovered from the vehicle, Ms. Barnes
     concluded to a reasonable degree of scientific certainty that it
     was fired from the subject .22 caliber semi-automatic firearm.
     She also test-fired the firearm and determined that it was
     operable. At trial, Ms. Barnes noted that the gun was jammed.
     She also stated that this firearm required three and one-half
     pounds of pressure to pull the trigger.

           Mr. Logan's red Chevrolet Cavalier was subsequently taken
     to the police garage at Summerdale and Whitaker Streets, where
     Officer Edward Fidler examined it. Officer Fidler observed that
     the air bags were deployed inside the vehicle as a result of the
     accident. The center console was pushed out and lying on the
     floor. The rear bench seat was halfway folded. There was also
     heavy damage to the front end of the vehicle. In addition to
     observing this vehicle damage, Officer Fidler found red stains
     that appeared to be blood inside the vehicle. As a result, Officer
     Fidler swabbed the interior handles and controls of all sides of
     the vehicle and the steering wheel cover. He submitted the
     swabs to the criminalistics and DNA laboratory for analysis.

           Detective Marano arranged for DNA swabs to be taken
     from [Appellant] and decedent so that they could be used as
     reference samples during the subsequent DNA analysis. Bryne
     Strother testified at trial as the Commonwealth's expert in
     forensic DNA analysis. He received the swabs obtained from
     [Appellant] and decedent. He also received the swabs that
     police obtained from the .22 caliber firearm and from the
     vehicle. Mr. Strother compared the DNA profiles taken from
     [Appellant] and decedent to the other swabbed evidence. After

                                   -4-
J-A31004-16


     examining this evidence, Mr. Strother concluded to a reasonable
     degree of scientific certainty that decedent was the DNA source
     of the swab obtained from the rear driver side of the vehicle.
     Mr. Strother concluded that the source of the DNA from the
     other swabs obtained from the vehicle were inconclusive.

           Mr. Strother also examined the DNA swabs taken from the
     .22 caliber firearm. He noted that the trace lab report indicated
     that chemical presumptive tests detected the presence of blood
     on the grip and trigger area of the firearm. There was no blood
     detected on the magazine. After comparing the DNA swabs
     obtained from the firearm to the DNA reference samples
     obtained from [Appellant] and decedent, Mr. Strother concluded
     to a reasonable degree of scientific certainty that decedent was a
     major contributor to the DNA found on the grip and trigger of the
     firearm. [Appellant] could not be excluded as a minor DNA
     contributor. Mr. Strother further concluded to a reasonable
     degree of scientific certainty that [Appellant] was a major
     contributor to the DNA found on the magazine of the firearm.

           At trial, [Appellant] testified that he was acting in self-
     defense when he shot at Mr. Logan. [Appellant] claimed that Mr.
     Logan arrived at his residence to collect a drug debt and initially
     pointed the gun at him. [Appellant] stated that he accidentally
     shot Mr. Logan in the head as he and Mr. Logan struggled for
     control of the gun. However, the Commonwealth presented
     testimony from Dr. Osborne and Ms. Barnes to disprove his self-
     defense claim. Dr. Osborne stated that he did not discover any
     burns, scratches, cuts or any other injuries on Mr. Logan's
     hands.    There was no evidence on Mr. Logan's body that
     indicated he was injured from holding a firearm as it discharged.
     Ms. Barnes testified that stippling or burns would have been
     present on Mr. Logan's skin if his hands or arms were near the
     muzzle of a firearm.

Trial Court Opinion (TCO), 1/16/16, at 2-5.

     Following a jury trial which commenced on September 23, 2014,

Appellant was convicted of third-degree murder, 18 Pa.C.S. § 2502(c),

carrying a firearm on public streets or public property in Philadelphia, 18

Pa.C.S. § 6108, and possession of an instrument of crime (PIC), 18 Pa.C.S.



                                    -5-
J-A31004-16



§ 907.   On December 12, 2014, the trial court sentenced Appellant to an

aggregate term of incarceration of 25-50 years’ incarceration, consisting of

consecutive terms of 20-40 years’ incarceration for third-degree murder,

2½-5 years’ incarceration for the firearms offense, and 2½-5 years’

incarceration for PIC. Appellant filed a timely post-sentence motion, which

was denied by operation of law on April 17, 2015. Appellant filed a timely

notice of appeal on April 23, 2015.      On May 11, 2015, Appellant filed a

timely, court-ordered Pa.R.A.P. 1925(b) statement, and then filed a

supplemental Rule 1925(b) statement on July 22, 2015.            The trial court

issued its Rule 1925(a) opinion on January 20, 2016.

     Appellant now presents the following questions for our review:

     1. Did not the trial court err by refusing to instruct the jury on
     involuntary manslaughter where the jury, even having rejected
     [Appellant’s] claim of self-defense, could nonetheless reasonably
     have determined that [Appellant] acted in a reckless or grossly
     negligent manner in causing the victim's death?

     2. Did not the trial court err by refusing examination on voir dire
     of the potential jurors as to whether knowing that a witness was
     a drug dealer would prejudice them to such a degree that it
     would prevent them from being able to follow the court's
     instructions, thus depriving [Appellant] of his right to a fair trial?

     3. Did not the trial court err in overruling [Appellant’s] objection
     to improper and prejudicial remarks made by the prosecutor
     during his summation inasmuch as the prosecutor's statements
     violated due process by improperly impugning the strategy of
     the defense and by expressing a personal opinion as to
     [Appellant]'s guilt, all of which went beyond the bounds of fair
     advocacy and deprived [Appellant] of his federal and state
     constitutional rights to due process, a fair and impartial jury, and
     a fair trial?



                                     -6-
J-A31004-16


       4. Was not the evidence insufficient to support the verdict of
       third[-]degree murder as a matter of law where the
       Commonwealth failed to disprove beyond a reasonable doubt
       that [Appellant] did not kill the victim in self-defense?

       5. Was not the trial court's imposition of a sentence of the
       statutory maximum term of 25 to 50 years[’] incarceration
       unreasonable, manifestly excessive and an abuse of discretion
       where the court failed to conduct an individualized sentencing,
       based its sentence on inappropriate reasons and ignored
       whether the sentence was the least stringent one available to
       protect the community or rehabilitate [Appellant]?

       6. Did not the trial court err as a matter of law, abuse its
       discretion and issue an illegal sentence by ordering [Appellant]
       to pay funeral expenses in the amount of $21,000 where
       imposition of such an amount was excessive, the trial court
       made no inquiries or findings regarding [Appellant’s] ability to
       pay the amount, did not specify any method of payment, and
       the court required no documentation to prove such amount was
       not speculative?

Appellant’s Brief at 6-7.

       Appellant’s first claim concerns the trial court’s refusal to issue an

instruction to the jury on the elements of involuntary manslaughter.          He

asserts that the court erred, or otherwise abused its discretion, because,

“the   jury, having   rejected [Appellant’s] claim of self-defense, could

nonetheless reasonably have determined that he acted in a reckless or

grossly negligent manner in causing Mr. Logan’s death.” Appellant’s Brief, at

34. The Commonwealth argues that the trial evidence failed to support the

crime of involuntary manslaughter and, therefore, the court’s failure to issue

an instruction regarding that offense was not an error of law or an abuse of

the court’s discretion. In rejecting Appellant’s claim, the trial court stated:

       In this case, there was no credible evidence to support the
       conclusion that the killing was accidental or that it resulted from

                                      -7-
J-A31004-16


      [Appellant’s] acting in a reckless or grossly negligent manner.
      Instead, as evidenced by the jury’s verdict, [Appellant] exhibited
      a conscious disregard of an unjustified and extremely high risk of
      death that warranted a third-degree murder conviction.

TCO at 10.

      “[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. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (quoting

Commonwealth v. Galvin, 985 A.2d 783, 798–799 (Pa. 2009)). “A person

is guilty of involuntary manslaughter when as a direct result of the doing of

an unlawful act in a reckless or grossly negligent manner, or the doing of a

lawful act in a reckless or grossly negligent manner, he causes the death of

another person.” 18 Pa.C.S. § 2504. In Commonwealth v. Garcia, 378

A.2d 1199 (Pa. 1977), our Supreme Court discussed issues related to the

propriety of issuing an involuntary manslaughter instruction as follows:

            Because involuntary manslaughter is a lesser included
      offense of murder, and because the evidence would support an
      involuntary manslaughter verdict whenever it would support a
      murder or voluntary manslaughter verdict, a defendant should
      be entitled to a requested instruction on involuntary
      manslaughter in all criminal homicide prosecutions. Allowing the
      jury to decide the case without adequate instruction as to the
      permissible verdict of involuntary manslaughter denies the jury
      information essential to a fair determination of the case. As Mr.
      Justice (now Chief Justice) Eagen has stated: “In those instances
      where an involuntary manslaughter verdict would be supported
      by the evidence, the failure to so acquaint the jury prevents it
      from operating with full knowledge of the relevant law and
      precludes   the    defendant     from   having    a   fair  trial.”
      Commonwealth v. Moore, 463 Pa. 317, 322, 344 A.2d 850,
      853 (1975) (plurality opinion).

                                     -8-
J-A31004-16


           The need for an instruction on involuntary manslaughter
     also follows from the Commonwealth's burden of proof. The
     United States Constitution requires the Commonwealth to prove
     every element of the offense, including the degree of culpability,
     beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90
     S.Ct. 1068, 25 L.Ed.2d 368 (1970). Thus, in any case in which
     the evidence would be sufficient to sustain a verdict of murder or
     voluntary manslaughter, the jury might conclude that the
     Commonwealth failed to meet its burden of proving malice,
     intent, or knowledge, but has proven recklessness or negligence.
     In order to avoid the possibility that the jury will erroneously
     convict the defendant of murder or voluntary manslaughter,
     when only involuntary manslaughter has been proven, a jury
     instruction on involuntary manslaughter must be given. It is no
     answer that if the evidence proves involuntary manslaughter
     only, and no instruction on involuntary manslaughter is given,
     the jury should acquit:

       True, if the prosecution has not established beyond a
       reasonable doubt every element of the offense charged,
       and if no lesser offense instruction is offered, the jury must
       as a theoretical matter, return a verdict of acquittal. But
       the defendant is entitled to a lesser offense instruction in
       this context or any other precisely because he should not
       be exposed to the substantial risk that the jury's practice
       will diverge from theory. Where one of the elements of the
       offense charged remains in doubt, but the defendant is
       plainly guilty of some offense, the jury is likely to resolve
       its doubts in favor of conviction.[]

     Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993,
     1997-98, 36 L.Ed.2d 844 (1973) (emphasis in original); see
     Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112
     (1961). The jury should not be forced to choose between a
     murder or voluntary manslaughter verdict and an acquittal
     when, properly instructed, the jury would find the defendant
     guilty of involuntary manslaughter.

           It has been argued that an instruction on involuntary
     manslaughter should not be given in a murder trial because it
     might confuse the jury. See Commonwealth v. Nace, 222 Pa.
     Super. 329, 331, 295 A.2d 87, 88 (1972) (dictum); cf.
     Commonwealth v. Comber, 374 Pa. 570, 578, 97 A.2d 343,
     346-47 (1953) (assault and battery instruction, on a murder
     indictment, might confuse the jury). We are not convinced that

                                   -9-
J-A31004-16


      an instruction on involuntary manslaughter presents a serious
      risk of confusing the jury. Indeed, in many cases, it will help to
      clarify the issues by giving the jury “full knowledge of the
      relevant law.” Commonwealth v. Moore, 463 Pa. 317, 322,
      344 A.2d 850, 853 (1975) (plurality opinion). The possibility of
      jury confusion in some cases is not an adequate ground to justify
      the unfairness of denying a requested instruction on involuntary
      manslaughter.

             A conclusion that an involuntary manslaughter instruction
      would only confuse the jury is necessarily based on the
      assumption that, given the evidence presented in the case, it
      would be wrong to reach such a verdict. If the evidence proves
      involuntary manslaughter, and not voluntary manslaughter or
      murder, it cannot be said that it would confuse the jury to give
      an involuntary manslaughter instruction. But the issue whether
      the evidence proves involuntary manslaughter, and not
      voluntary manslaughter or murder, is for the jury to decide. It is
      the province of the jury to weigh the evidence, and the jury is
      entitled to believe all, part, or none of the evidence presented.
      Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976);
      Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975);
      Commonwealth v. Wright, 458 Pa. 236, 328 A.2d 514 (1974).

            The jury's province to weigh the evidence includes the
      right to believe all, part of, or none of the testimony of a
      particular witness. Commonwealth v. Marlin, 452 Pa. 380,
      305 A.2d 14 (1973); Commonwealth v. Oates, 448 Pa. 486,
      295 A.2d 337 (1972); Commonwealth v. Petrisko, 442 Pa.
      575, 275 A.2d 46 (1971). Thus it is not grounds to deny an
      involuntary manslaughter instruction that the Commonwealth's
      evidence, if believed, would prove murder or manslaughter, and
      the defendant's testimony, if believed in its entirety, would
      require a verdict of not guilty.

Garcia, 378 A.2d at 1208–09 (some internal questions marks omitted).

      Here, the trial court rested its decision to refuse an involuntary

manslaughter instruction on two pillars: first, that there was no “credible”

evidence supporting an involuntary manslaughter verdict; and second, that

the jury’s third-degree murder verdict itself demonstrated the inapplicability



                                    - 10 -
J-A31004-16



of that instruction.     Neither of these justifications finds any support in our

case law.

        As discussed in Garcia, supra, in a jury trial, it is exclusively within

the jury’s power to weigh the credibility of the evidence, testimonial or

otherwise.    As such, the trial court’s assertion that no “credible” evidence

supported involuntary manslaughter appears to breech that maxim on its

face.    The court appears to have simply judged testimony supporting an

involuntary manslaughter verdict to not be credible. This posture stands in

stark contrast to those cases where our appellate courts have affirmed a trial

court’s refusal to give an involuntary manslaughter instruction.

        The only case cited by the trial court in reference to the instant claim

is Commonwealth v. Fletcher, 986 A.2d 759 (Pa. 2009).1 The trial court

made no effort in its opinion to compare and/or contrast that case with the

instant one, but instead merely cited it for boilerplate language defining the

offense of involuntary manslaughter and the holding that: “An instruction on

involuntary manslaughter is not required unless it has been made an issue in

the case and the facts would support such a verdict.” TCO at 10 (quoting

Fletcher, 986 A.2d at 791).


____________________________________________


1
  The trial court cited other cases dealing more generally with boilerplate
jury instruction law. However, Fletcher was the only case cited by the court
which dealt specifically with involuntary manslaughter instructions, albeit in
the context of an ineffective assistance of counsel claim, not, as here, where
the instruction was requested and refused.



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J-A31004-16



       However, Fletcher does not support the trial court’s decision.

Fletcher did not deal with a claim raised on direct appeal. Instead, in that

case, Fletcher claimed on collateral review that his trial counsel was

ineffective for not seeking an involuntary manslaughter jury instruction

during trial. The Fletcher Court rejected this claim, not because of a lack of

credible evidence supporting an involuntary manslaughter verdict, but

because no evidence supported such a verdict.            In somewhat factually

similar circumstances to the instance case, Fletcher testified that he and his

victim had struggled over the victim’s gun before Fletcher shot the victim.2

However, unlike Appellant’s testimony in this case, Fletcher had testified that

he “rushed in and we struggled. I got my hand on the gun and I fired it two

times toward his leg.”         Id.     Thus, Fletcher had admitted that he had

intentionally shot his victim, albeit immediately after struggling for the gun.

Consequently, an involuntary manslaughter verdict would not have been

supported by any evidence or any testimony in that case.           It was not,

therefore, necessary to judge the credibility of any specific evidence or

testimony in order to determine the applicability of the involuntary

manslaughter instruction. Accordingly, the Fletcher Court determined that

Fletcher’s counsel had not been ineffective for failing to request such an

instruction.

____________________________________________


2
  Other evidence suggested that Fletcher killed the victim in cold blood, with
his own gun, and that there was no struggle over a weapon.



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J-A31004-16



      Here, however, Appellant did not admit to intentionally shooting the

victim, Mr. Logan.   Instead, his testimony could have supported a finding

that he acted recklessly or negligently in causing the victim’s death in a

struggle over the gun. After stating that the victim struck him in the head

with the gun, Appellant testified as follows:

      Q.    When that happened, what did you do?

      A.   I was shocked that he hit me. He pulled back and went to
      swing again. I grabbed his arm and the butt of the gun.

      Q.    Did you grab his arm around in this location on his wrist
      area?

      A.    No. I don’t remember. I grabbed--

      Q.    You show us, if you remember.

      A.    [He] [s]macked me in the head, boom, and pulled the gun
      back and smacked me and I pulled the butt of the gun. I’m
      grabbing his arm with this hand and he got his hand on the
      barrel and reached over and we both tussling with all four arms.
      The tussle went on for about 30 seconds and I pushed off and
      the gun went off. Boom!

            I looked, the gun fell. I look at myself and make sure I
      wasn’t shot. I seen the blood trickling from his head. “What the
      fuck.” In the front of my house, I don’t know what I’m going to
      do, seriously.

      …

      Q.    When you grabbed it, what were you trying to do?

      A.    I was trying to take the gun out of his hands so I can leave
      out the car and go in the house.

      Q.   Were you trying to take the gun so you could defend
      yourself?

      A.   Take it out of his hands and run in the house. That’s the
      reason I didn’t get out of the car in the first place, because I


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J-A31004-16


      didn’t know [if] he would shoot me. I never seen that side [of
      him] before. That’s not his character.

N.T., 9/24/14, at 142-144 (emphasis added). Thus, Appellant testified that

his intent was solely to disarm the victim, not to use the weapon against him

once he was disarmed. He also testified that the gun went off during the

struggle, not that he won control of the firearm and then intentionally fired

it, as had happened in Fletcher.      If believed by the jury, this testimony

could have supported an involuntary manslaughter verdict.

      The Commonwealth cites several cases which ostensibly support the

trial court’s decision not to instruct the jury on involuntary manslaughter. In

each of these cases, the appellate court rejected the appellant’s claim that

the trial court should have issued an involuntary manslaughter instruction.

With respect to each of these cited cases, the Commonwealth provides very

minimal analysis, and often fails to offer even the most rudimentary of

factual comparisons to the instant case.          Nevertheless, despite the

Commonwealth’s poor presentation of these legal authorities, we will

address each of its cited cases in turn.

      The Commonwealth first cites Commonwealth v. Boczkowski, 846

A.2d 75 (Pa. 2004). The facts of Boczkowski are clearly distinguishable

from the instant case.     There, “[t]he physical evidence, … including the

bruising and injuries indicating that [the victim] had died from manual

strangulation, would not support an involuntary manslaughter conviction.”

Id. at 460. In other words, it was simply not plausible that Boczkowski had

recklessly or negligently strangled his victim to death.    Here, however, it

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J-A31004-16



was at least possible, pursuant to Appellant’s testimony, that the gun went

off during a struggle, rather than by means of an intentional, malicious act.

While the only evidence of a struggle was Appellant’s testimony, the lack of

corroborating evidence cannot completely disprove or discount Appellant’s

version of events to such an extent that the trial court was entitled to

deprive the jury of the choice to believe him.       It is not impossible that

Appellant and his victim failed to inflict visible physical wounds on each other

during the course of a brief struggle over the gun. And, although there was

expert testimony regarding an expectation that the victim’s skin would show

evidence of stippling or burns if his hands or arms were near the muzzle of a

firearm when it discharged (and no such wounds were discovered), there

was no evidence presented that the victim had hold of the muzzle, rather

than some other part of the weapon, when it discharged and killed him.3
____________________________________________


3
  Although Appellant testified that the victim’s hand was on the muzzle at
some point during the struggle for the gun, he also stated that the struggle
went on for 30 seconds before the gun discharged. That is simply not
identical to a claim that the victim had his hands around the muzzle at the
moment it fired. Moreover, although the medical examiner stated that there
were no wounds on the victim’s body that were consistent with being near
the muzzle when it fired, N.T., 9/24/14, at 31, she admitted on cross-
examination that, when she received the victim’s body for purposes of
conducting the autopsy, his clothes had already been removed, id. at 38. In
reviewing the transcripts of this testimony, this Court could not find any
testimony to the effect that such wounds could be inflicted through clothing,
nor was there any testimony that the victim was sleeveless when this late-
evening, late-November shooting occurred.         Given all these attendant
circumstances, the lack of wounds on the victim’s hands or arms does not
render impossible (or virtually impossible) Appellant’s claim that the gun
went off during a struggle. To afford such weight to the lack of burn or
(Footnote Continued Next Page)


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      Second, the Commonwealth cites Commonwealth v. Keaton, 341

A.2d 999 (Pa. 1981). However, that extremely brief opinion provides little

more than the boilerplate language that “[i]nvoluntary manslaughter was

not made an issue before the trial court and no evidence whatsoever was

presented to support a finding that the death was caused by the reckless or

negligent act of another.” Id. at 1000. It does state, however, that Keaton

“testified that he was asleep at the time when the killing occurred.”        Id.

Keaton could not have acted negligently, recklessly, or with any degree of

criminal mens rea for that matter, while asleep. Here, however, Appellant’s

testimony - if believed - could have supported an involuntary manslaughter

verdict.   He testified that the shooting was an accidental result of the

struggle for the victim’s gun.          That struggle could have reasonably been



                       _______________________
(Footnote Continued)

stippling wounds, so as to preclude an involuntary manslaughter verdict,
there must have been some certainty that the victim’s hands or arms must
have been injured by the firing of the weapon, but no such certainty is
provided by Appellant’s testimony or any other evidence in this case. At
best, one can surmise that such wounds were likely, but not necessary to
corroborate Appellant’s version of events. By contrast, in Boczkowski, and
in the cases discussed below, there was often evidence that clearly
prohibited a reasonable conclusion that the killing that occurred was
unintended and accidental rather than intentional and malicious.        In
Boczkowski, because the manner of death was determined to be manual
strangulation, an accidental death could be completely ruled out. The
physical evidence presented by the Commonwealth in this case could not
provide that degree of certainty so as to legally preclude an involuntary
manslaughter verdict.




                                           - 16 -
J-A31004-16



construed by the jury as a criminally negligent or reckless act that resulted

in the victim’s death.

       Next, the Commonwealth cites Commonwealth v. Walker, 421 A.2d

172 (Pa. 1980).       Like Keaton, Walker is an extremely brief, undetailed

opinion.    Nevertheless, as had occurred in Keaton, Walker’s testimony4

could not support an involuntary manslaughter verdict.          As the Walker

Court stated, Walker’s “defense was that he went to the scene of the crimes

anticipating only a ‘fair’ fistfight, and fled as soon as his fellow gang

members drew their knives.” Id. Thus, Walker, much like Keaton, claimed

he was not present when the murder occurred, not that an unintentional

killing occurred as the result of an ostensibly negligent or reckless act.

       The Commonwealth also cites to Commonwealth v. Banks, 677 A.2d

335 (Pa. Super. 1996). However, in that case:

       [D]uring [a] discussion between [the] appellant and the victims
       seated in their automobile, [the] appellant pulled out a gun,
       pointed it in the face of Ford[, the murder victim,] and told him
       to give him the money and drugs. Instead of relinquishing the
       requested items, Ford stomped on the automobile's gas pedal in
       an attempt to flee. Eyewitness testimony established that [the]
       appellant then fired two shots in the automobile.

Id. at 343.

____________________________________________


4
  We assume that the language used by the Walker Court to describe
Walker’s defense arose out of Walker’s testimony, or via a statement he
made that was admitted at trial. The Walker Court briefly explained the
“appellant’s defense[,]” but did not identify its evidentiary or testimonial
source. Id. at 173.



                                          - 17 -
J-A31004-16



        Banks requested an involuntary manslaughter charge, which was

denied by the trial court. On appeal, he argued the jury could have inferred

that the gun was accidentally fired by [the] appellant, that is, the victim's

automobile “bumped [the] appellant's hand which caused the gun to be

fired.” Id. The Banks Court rejected this argument because

        there was absolutely no testimony from any source that the
        victim's automobile had bumped anyone's hand or had c[o]me
        into contact with anyone's body. Also, there was no testimony
        that the weapon was fired accidentally. In fact, at trial, [the]
        appellant's defense was that one of his co-defendants had shot
        the victims, not that the shooting was accidental. Further, [the]
        appellant's argument that the first bullet was shot when his hand
        was bumped by the victim's automobile discounts the testimony
        of eyewitnesses that a second shot was fired after the
        automobile had pulled away.        The firing of a second shot
        strengthens our decision that the jury could not have inferred
        that the shooting was merely reckless or grossly negligent.

Id.     Again, the facts in Banks are clearly distinguishable from the case at

hand.     Banks claimed someone else shot the victim and, regardless, the

ostensibly accidental nature of the first shot did not adequately explain the

second. Here, however, Appellant testified that the shooting was accidental.

        Finally, the Commonwealth cites Commonwealth v. Jones, 570 A.2d

1338 (Pa. Super. 1990).        In that case, the victim was found lying in his

tub, with two gunshot wounds to the head. The appellant was his paramour.

In dismissing the claim that the trial court should have issued an involuntary

manslaughter jury instruction, the Jones Court stated:

        In the instant case there was no evidence which reasonably
        would have supported a verdict of involuntary manslaughter.
        The trial evidence, which has been discussed at length elsewhere


                                     - 18 -
J-A31004-16


     in this opinion, simply could not support a finding of reckless or
     grossly negligent conduct as [the] appellant has urged.
     Therefore, the trial court correctly refused to charge on this
     point.

Id. at 1349.

     Thus, the Jones case provides virtually no analysis of the relevant

evidence in relation to the propriety of issuing an involuntary manslaughter

charge. However, given the nature of the wounds (one shot went “through

his head[,]” and the other in the back of his neck, which “travelled

downward and lodged in his spine”), the position of the victim (lying in his

bathtub), and the theft of several items from his residence, it seems quite

improbable that the shooting was an accident.      See id. at 1342.       Most

importantly, there was no testimony or evidence referenced in the Jones

opinion that would tend to support the theory that the shooting was merely

the result of negligent or reckless conduct. Although the appellant claimed

on appeal that the killing was consistent with a “quarrel” between lovers, it

is not clear from the Jones opinion whether Jones testified at his own trial

or, even if he had, whether he had claimed that the shooting was accidental.

What is known is that Jones claimed in pre-trial statements that he was not

present when the victim was murdered. Id. at 1343. It appears that the

theory that the shooting was a result of a struggle between Jones and his

victim only arose through defense counsel’s closing arguments regarding the

medical examiner’s testimony about the fatal wounds. It is “well settled in

the law that attorneys' statements or questions at trial are not evidence.”



                                   - 19 -
J-A31004-16



Commonwealth v. LaCava, 666 A.2d 221, 231 (Pa. 1995).                 Accordingly,

for these reasons, we conclude that Jones also fails to support the trial

court’s decision in this case.

      The trial court’s opinion suggests that it refused the instruction in

question because the evidence supporting it was not “credible.” Perhaps the

court believed that the other evidence in this case, such as Appellant’s

attempt to hide the weapon, his flight, and other attendant circumstances,

all of which tended to undermine Appellant’s credibility and demonstrate his

consciousness of guilt, outweighed Appellant’s self-serving description of

events.    And, fairly viewed, there was sufficient evidence available for the

jury to discount Appellant’s version of events. However, it was for the jury,

not the trial court, to decide whether Appellant’s account was credible in

light of those circumstances.        Garcia, 378 A.2d at 1209 (“The jury's

province to weigh the evidence includes the right to believe all, part of, or

none of the testimony of a particular witness.”).        Indeed, the evidence

contradicting Appellant’s account was strong, but not iron-clad.           It was

merely suggestive of a guilty mind, and a malicious or intentional killing; the

evidence was not absolute or effectively incontrovertible proof of the same.

Therefore, the court’s first reason for supporting its decision to deny giving

an involuntary manslaughter instruction was clearly erroneous and not

supported by any case law cited by the trial court or the Commonwealth.

      In   its   brief,   the   Commonwealth   also   argues   that   involuntary

manslaughter “was not made an issue in the case[.]” Commonwealth’s Brief

                                      - 20 -
J-A31004-16



at 9. However, as noted above, there was evidence in this case supporting

an involuntary manslaughter verdict, because Appellant’s testimony, if

believed by the jury, could have supported one. Thus, Appellant’s testimony

made involuntary manslaughter an issue in this case.     This is unlike what

appears to have happened in Jones, where the “theory” of involuntary

manslaughter was only vaguely raised during defense counsel’s closing

arguments. It was not made an issue through the testimony of witnesses or

physical evidence.   Moreover, the Commonwealth does not argue that this

issue was waived due to Appellant’s failure to raise it below.       Clearly,

involuntary manslaughter was ‘made an issue in this case’ when Appellant

testified and then timely requested an involuntary manslaughter instruction

below.

     The Commonwealth attempts to support this argument further by

noting that, when requesting the instruction, Appellant’s counsel stated that

involuntary manslaughter was not the defense’s theory of the case.        N.T.,

9/24/14, at 179.     However, the Commonwealth omits the remainder of

defense counsel’s contemporaneous remarks:

     Judge, it’s not our theory of the case, obviously. However, if
     there is sufficient issues raised by the fact that the charge
     should stand, it’s our position that involuntary could be – should
     be read.

     We really don’t think there is that much to support a first degree
     murder charge, but, nevertheless, some reasonable jury could
     come to that conclusion.

     However, in this circumstance, since there was a struggle over
     the gun, the jurors could disbelieve a portion of the defendant’s

                                   - 21 -
J-A31004-16


       testimony regarding the gun. They could believe that he had
       reached for the gun at some time during the time he was in the
       car and held it in a criminally negligent or reckless way resulting
       in the death of Mr. Logan. I think that’s a reasonable inference
       from all of the evidence in the car – in the case and that it
       should be raised, as well.

Id.

       Whether defense counsel had initially pursued a self-defense claim

rather than an involuntary manslaughter based defense is immaterial to

what the evidence supported after Appellant’s testimony was heard. Indeed,

in the wake of Appellant’s testimony, self-defense was clearly inapplicable if

Appellant’s version of events was believed in its entirety.5 While Appellant

claimed to be acting in his own defense when he struggled for the weapon,

he did not claim to have shot the victim in self-defense; he claimed the gun

went off while he and the victim were struggling to control it. The jury could

have believed that accidental shooting was a direct result of Appellant’s

negligent or reckless act of attempting to gain control of the victim’s

weapon.

       The second reason offered by the trial court in support of its decision

to deny Appellant’s request for an involuntary manslaughter instruction is

equally unsound.       The court suggests, without much explanation, that the

____________________________________________


5
   That is not to say that it was outside the jury’s province to reject
Appellant’s testimony in such a manner that would support his self-defense
claim. The jury could have rejected that the shooting was accidental or
unintended, but still accepted that Appellant fired the weapon in self-defense
just as he won control of it.



                                          - 22 -
J-A31004-16



jury’s guilty verdict on third-degree murder demonstrated that the jury

believed that the Commonwealth had sufficiently proven that Appellant

displayed “a conscious disregard of an unjustified and extremely high risk of

death.”    TCO at 10.     Although the trial court fails to elaborate on the

relevance of this reasoning (or cite any cases in support of it), ostensibly the

court believed the jury’s verdict rendered harmless the court’s failure to give

the involuntary manslaughter instruction.         We must reject this line of

reasoning, as it would suggest that claims like the one before us are virtually

never reviewable in the appellate courts. If the jury had found Appellant not

guilty of all homicide charges, there would be no reason to seek review from

the trial court’s decision to deny an involuntary manslaughter instruction.

Moreover, the Commonwealth - should it ever find cause to request an

involuntary manslaughter instruction - is constitutionally prohibited from

appealing acquittals.

        The issue before us only ever presents itself for review in an appellate

court     when   a   homicide   conviction     more   serious   than   involuntary

manslaughter occurs.        Indeed, in none of the cases cited by the

Commonwealth in support of the trial court’s decision does an appellate

court even begin to approach this type of reasoning, and for obvious

reasons: it is unsound and fundamentally speculative. The issue before us

concerns whether sufficient evidence was available to permit the jury to

convict Appellant for involuntary manslaughter had the lesser-offense

instruction been read by the trial court.

                                      - 23 -
J-A31004-16



       In Garcia, our Supreme Court instructed that “[t]he jury should not be

forced to choose between a murder or voluntary manslaughter verdict and

an acquittal when, properly instructed, the jury would find the defendant

guilty of involuntary manslaughter.” Garcia, 378 A.2d 1208. The Garcia

Court also stated that, “[i]n order to avoid the possibility that the jury will

erroneously convict the defendant of murder or voluntary manslaughter,

when only involuntary manslaughter has been proven, a jury instruction on

involuntary manslaughter must be given.” Id (emphasis added). Instantly,

neither this Court nor the trial court can divine what the jury would have

decided had it been given the option to convict Appellant of involuntary

manslaughter.       Tellingly, in its brief, the Commonwealth does not even

attempt to support the trial court’s second justification for denying the

involuntary manslaughter instruction.

       For the reasons set forth above, we conclude that the trial court erred

when it denied Appellant’s timely request for a jury instruction on

involuntary    manslaughter.         Accordingly,   we   must   vacate   Appellant’s

judgment of sentence and remand for a new trial. Given our disposition in

this regard, it is unnecessary to reach Appellant’s second, third, fifth, and

sixth claims.6    However, because Appellant also argues that the evidence
____________________________________________


6
  Because of our disposition with regard            to Appellant’s first claim, our
decision regarding the remaining issues (but        for the sufficiency claim) would
merely be advisory in nature. Moreover,              it is purely speculative as to
whether these issues will arise again in his        subsequent trial or, if they do
(Footnote Continued Next Page)


                                          - 24 -
J-A31004-16



was insufficient to support his conviction for third-degree murder, we must

address that claim, since it would entitle him to relief greater than that

afforded by our granting of a new trial.

      Appellant asserts that the Commonwealth failed to present sufficient

evidence to disprove his claim that he killed Mr. Logan in self-defense.

Specifically, Appellant claims that “the evidence supports [Appellant]’s

contention that he was in immediate danger of death or serious physical

harm at the time of the shooting.” Appellant’s Brief at 48.

      Our standard of review of sufficiency claims is well-settled:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      “The use of force upon or toward another person is justifiable when

the actor believes that such force is immediately necessary for the purpose

                       _______________________
(Footnote Continued)

arise, whether they would do so under identical circumstances. Accordingly,
we decline to address them.



                                           - 25 -
J-A31004-16



of protecting himself against the use of unlawful force by such other person

on the present occasion.” 18 Pa.C.S. § 505(a).

      If a defendant introduces evidence of self-defense, the
      Commonwealth bears the burden of disproving the self-defense
      claim beyond a reasonable doubt. Commonwealth v. Rivera,
      603 Pa. 340, 983 A.2d 1211, 1221 (2009). “Although the
      Commonwealth is required to disprove a claim of self-defense ...
      a jury is not required to believe the testimony of the defendant
      who raises the claim.” Commonwealth v. Carbone, 524 Pa.
      551, 574 A.2d 584, 589 (1990).

Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011).

      Appellant premises his contention that the evidence was insufficient to

defeat his self-defense theory on the notion that his own testimony provided

sufficient evidence in support of that claim.        This argument is poorly

constructed, given that Appellant has no burden to prove self-defense.

Nevertheless, it was well within the jury’s authority to disbelieve Appellant’s

version of events, in part, or in whole. See id.

      Moreover,   the   Commonwealth     presented    ample   evidence   which

permitted the jury to reach a reasonable conclusion that Appellant had not

acted in self-defense. There was no evidence supporting Appellant’s claim

that he struggled with the victim for the gun beyond his own testimony, he

stashed the murder weapon in his home immediately following the shooting,

he engaged in headlong flight from officers when they arrived at the scene;

and he also refused to surrender after the car crashed during that flight,

telling the officers that, “[y]ou will have to fucking kill me.” N.T., 9/23/14,

at 96.    Our overview of existing case law demonstrates that these


                                    - 26 -
J-A31004-16



circumstances   constituted   more   than     sufficient   evidence   to   disprove

Appellant’s claim of self-defense. See Commonwealth v. Jones, 886 A.2d

689 (Pa. Super. 2005) (holding the evidence sufficient to defeat claim of

self-defense, as the fact-finder was free to reject the defendant’s testimony

establishing that defense, and where the defendant shot the victim in the

head at close range); Commonwealth v. Pestinikas, 617 A.2d 1339,

1347–48 (Pa. Super. 1992) (“It is well settled that when a person has

committed a crime, and knows that he is wanted for it, any attempt by that

person to flee or conceal his whereabouts, to escape from custody or resist

arrest, to conceal or destroy evidence, to give false statements or testimony,

to intimidate or attempt to influence witnesses, or to otherwise engage in

conduct designed to avoid apprehension or prosecution for such crime may

be admissible as evidence of consciousness of guilt, and may, along with

other evidence in the case, form a basis from which guilt may be inferred.”).

      Appellant acknowledges the evidence of his consciousness of guilt, but

argues that such evidence was also consistent with an accidental shooting

during a struggle for the gun, or with his self-defense theory. He contends

that his attempted concealment of evidence, flight, and resisting arrest were

all actions equally congruent with his being in a state of panic or shock

following the shooting.   We agree that such evidence could be consistent

with panic rather than a guilty conscience. However, it was also reasonable

for the jury to draw adverse inferences from the same conduct, and “[w]hen

reviewing a sufficiency claim[,] the court is required to view the evidence in

                                     - 27 -
J-A31004-16



the light most favorable to the verdict winner giving the prosecution the

benefit of all reasonable inferences to be drawn from the evidence.”

Widmer, 744 A.2d at 751 (emphasis added). Accordingly, we conclude that

Appellant’s sufficiency claim lacks merit.

      In sum, although we conclude that the evidence was sufficient to

defeat Appellant’s self-defense claim, we must vacate his judgment of

sentence and remand for a new trial, because the trial court erroneously

refused to issue a jury instruction on involuntary manslaughter. Because of

our disposition with regard to these matters, we decline to reach Appellant’s

remaining claims for relief.

      Judgement of sentence vacated.          Case remanded for a new trial.

Jurisdiction relinquished.

      Justice Fitzgerald joins this memorandum.

      Judge Moulton concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2017




                                     - 28 -
