J-S04023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY LYN HOLLENSHEAD                    :
                                               :
                       Appellant               :   No. 697 MDA 2018

              Appeal from the Judgment of Sentence April 3, 2018
                 In the Court of Common Pleas of Fulton County
              Criminal Division at No(s): CP-29-CR-0000107-2015


BEFORE:      SHOGAN, J., OTT, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 26, 2019

        Anthony Lyn Hollenshead appeals from the judgment of sentence

imposed April 3, 2018, in the Fulton County Court of Common Pleas. The trial

court sentenced Hollenshead to two consecutive terms of life imprisonment,

following his jury conviction of two counts of first-degree murder1 for the

shooting death of his wife and stepdaughter. On appeal, Hollenshead argues

the evidence was insufficient to support his convictions of first-degree murder,

when he presented ample evidence to establish he acted under the mistaken

belief the shootings were justified. For the reasons below, we affirm.

        The trial court provided a thorough and detailed recitation of the trial

testimony in its opinion, which we need not reiterate herein. See Trial Court

____________________________________________


   Former Justice specially assigned to the Superior Court.

1   See 18 Pa.C.S. § 2502(a).
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Opinion, 6/28/2018, at 3-25. In summary, during the early morning hours of

May 5, 2015, Hollenshead shot and killed both his wife, Laura Hollenshead,

and his stepdaughter, Jaedi Weed, with a 20-gauge shotgun.             Although

Hollenshead’s other daughter and stepdaughters described him as an abusive

and controlling husband and father, he claimed he was the victim of physical

abuse by his wife. Moreover, while admitting he fired the shotgun that killed

Laura and Jaedi, Hollenshead testified that both victims attacked him first,

striking him with a wooden board, a wrench, and a flashlight. He claimed he

shot Laura first accidentally, while struggling over the shotgun, and then again

as she approached him with a wrench in her hand. See N.T. 1/26/2018, at

47. Hollenshead testified he then shot Jaedi because she was pointing a rifle

at him and screaming that she was going to kill him. See id. at 47-48.

       As noted supra, Hollenshead was charged with two counts of first-

degree murder. The case proceeded to a jury trial, and on January 29, 2018,

the jury returned a verdict of guilty on both charges. Thereafter, on April 3,

2018, the trial court sentenced Hollenshead to two consecutive, mandatory

terms of life imprisonment. This timely appeal followed.2

       Hollenshead’s sole issue on appeal is a challenge to the sufficiency of

the evidence supporting his convictions.         Our standard of review is well-

established:

____________________________________________


2 Hollenshead complied with the trial court’s directive to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).


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      Evidence legally is sufficient when, viewed in the light most
      favorable to the Commonwealth as verdict winner, the evidence
      and all reasonable inferences derived therefrom are sufficient to
      enable a reasonable fact-finder to find all of the elements of first-
      degree murder beyond a reasonable doubt. In conducting this
      inquiry, we must evaluate the entire trial record. In addition, “the
      trier of fact, while passing upon the credibility of witnesses and
      the weight of the evidence, is free to believe all, part, or none of
      the evidence.”

Commonwealth v. Clemons, 200 A.3d 441, 462 (Pa. 2019) (internal

citations omitted).

      In   order   to   convict   a   defendant   of   first-degree   murder,   the

Commonwealth must prove “a human being was unlawfully killed; the

defendant was responsible for the killing; and the defendant acted with malice

and a specific intent to kill.” Commonwealth v. Houser, 18 A.3d 1128, 1133

(Pa. 2011), cert. denied, 526 U.S. 1247 (2012).           See also 18 Pa.C.S. §

2502(a). The Commonwealth may satisfy its burden of proof by circumstantial

evidence. See Houser, supra, 18 A.3d at 1133. Moreover, the fact finder

may infer the defendant acted with both malice and a specific intent to kill

when he uses a deadly weapon on a vital part of the victim’s body. See id.

at 1133-1134 (quotation omitted).

      However, pursuant to 18 Pa.C.S. § 2503(b), “an intentional killing is

voluntary manslaughter if committed as a result of an unreasonable belief in

the need for deadly force in self-defense.” Commonwealth v. Washington,

692 A.2d 1024, 1029 (Pa. 1997), cert. denied, 523 U.S. 1006 (1998).

      In explaining what elements are necessary to establish
      unreasonable belief voluntary manslaughter, which is sometimes



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      referred to as “imperfect self-defense,” [the Supreme Court has]
      stated:

         This self-defense claim is imperfect in only one respect-an
         unreasonable rather than a reasonable belief that deadly
         force was required to save the actor’s life. All other
         principles of justification under 18 Pa.C.S. § 505 must [still
         be met in order to establish] unreasonable belief voluntary
         manslaughter.

      Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575, 582
      (1991). In order to establish the defense of self-defense under
      18 Pa.C.S. § 505, the defendant must not only show that he was
      protecting himself against the use of unlawful force but must also
      show that he was free from fault in provoking or continuing the
      difficulty which resulted in the killing.      See 18 Pa.C.S. §
      505; Tilley, 595 A.2d at 581.

Commonwealth v. Bracey, 795 A.2d 935, 947 (Pa. 2001) (footnote

omitted). Furthermore, we note that “[i]f a defendant introduces evidence of

self-defense, the Commonwealth bears the burden of disproving the self-

defense claim beyond a reasonable doubt.” Houser, supra, 18 A.3d at 1135.

Nevertheless, “a jury is not required to believe the testimony of the defendant

who raises the claim.” Id., quoting Commonwealth v. Carbone, 574 A.2d

584, 589 (Pa. 1990).

      Here, Hollenshead argues “[t]he evidence presented in this case, even

in the light most favorable to the Commonwealth, was insufficient to disprove

[he] was not acting in a sincere, albeit possibly mistaken, belief that his life

was being threatened by the victims in this case.” Hollenshead’s Brief at 18.

He emphasizes that in “multiple audio recorded interviews” he claimed the

victims attacked him with a “2x3 piece of wood” and two different wrenches,

all of which were recovered at the scene. Id. at 19. Furthermore, Hollenshead


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maintains his assertion that Jaedi was pointing the rifle at him when he fired

the shotgun at her, was supported by the testimony of Trooper Todd Neumyer,

the Commonwealth’s own forensic firearm and tool mark examiner. See id.

at 19-20. He contends Trooper Neumyer acknowledged there was a “small

ding” on the rifle, that could have resulted from being hit by a shotgun pellet,

and the trooper observed blood on the rifle that was never sent for testing.

N.T., 1/25/2018, at 42, 54-55. Accordingly, Hollenshead argues he should

have been convicted only of voluntary manslaughter.

      Preliminarily, we note the trial court initially found this claim waived

based upon Hollenshead’s vague reference to a sufficiency claim in his concise

statement. See Trial Court Opinion, 6/28/2018, at 26-27. We are constrained

to agree.

      This Court has held that when a defendant seeks to challenge the

sufficiency of the evidence on appeal, he must “specify the element or

elements upon which the evidence was insufficient.”       Commonwealth v.

Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (quotation omitted). The failure

to do so, results in waiver of the claim on appeal.      See id.   This is true

regardless of whether the Commonwealth objected to the defect or the trial

court ultimately addressed the claim in its opinion. See id. at 261. Accord

Commonwealth v. Roche, 153 A.3d 1063 (Pa. Super. 2017) (finding

defendant’s challenge to the sufficiency of the evidence supporting his

conviction of first-degree murder and conspiracy waived when he failed to




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“specify the element or elements … with regard to which he deems the

evidence was insufficient to sustain a conviction”).

       Here, Hollenshead’s concise statement reads as follows:

       Whether the evidence presented was sufficient for a jury to find
       Anthony L. Hollenshead guilty of two (2) counts of Murder in the
       First Degree?

Hollenshead’s Concise Statement of Errors Complained of on Appeal Pursuant

to Pa.R.A.P. 1925(b). Noticeably absent from his statement is any reference

to the sole issue on appeal, that is, his claim that the evidence supported his

claim of “imperfect” self-defense. Accordingly, we find this issue waived.3

       Nevertheless, even assuming arguendo Hollenshead’s challenege was

not waived, we would affirm on the basis of the trial court’s opinion. On this

specific argument, the court stated:

             [Hollenshead] asked the jury to believe he acted in self-
       defense. However, his defense was just simply not credible. Not
       only did the physical evidence belie his claim, but his own
       inconsistent and ever-changing claims demonstrated the lack of
       credibility of his defense. From the first version of events he
       reported to Trooper Lear in the back of the patrol vehicle to the
       recorded statements he gave to Trooper Clemens to the final
       version he offered the jury at trial, [Hollenshead’s] story changed
       dramatically regarding key elements.            For example, his
       explanation of how Laura came to be in possession of the shotgun
       (from she got it from the cabinet, to she wrestled it from
       [Hollenshead], to [Hollenshead] gave it to her so she could kill
____________________________________________


3 Pursuant to Tyack and Roche, the fact that the Commonwealth failed to
object to this deficiency and the trial court later addressed Hollenshead’s claim
in its opinion, is of no moment. See Tyack, supra, 128 A.3d at 261; Roche,
supra, 158 A.3d at 1072.




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       herself …) changed significantly. The location of the rifle from the
       time the girls first observed a distance from the bodies to the time
       the police found it lying next to Jaedi’s body changed – and not
       just because Haley carried it inside.[4] Also of interest was
       [Hollenshead’s] admission at trial to engaging in a sexual
       relationship with Jaedi, something [he] had not disclosed at any
       time prior. Certainly the jury was able to consider all of these
       things not only to assess the Commonwealth’s evidence in
       meeting its burden, but also in evaluating the witnesses’ and
       [Hollenshead’s] credibility.

                                           ....

       The jury’s verdict suggests they did not believe [Hollenshead’s]
       testimony regarding the events of May 4, 2015.

Trial Court Opinion, 6/28/2018, at 29-30.         We remind Hollenshead that

although he may testify he acted in self-defense, a jury is not obligated to

believe his testimony, particularly when his story changed over time, and his

version of events is is belied by physical evidence.      See Houser, supra.

Accordingly, even if Hollenshead had not waived this claim, he would be

entitled to no relief.




____________________________________________


4 Hollenshead’s stepdaughters, Stephanie and Haley Weed, testified they were
inside the house at the time of the shooting, and ran outside after hearing
gunshots and Jaedi’s screams. See N.T., 1/22/2018, at 80-81, 128. They
were confronted by Hollenshead, who admitted he shot Laura and Jaedi. See
id. at 81, 128. Haley stated that outside, she saw a rifle lying about 30 to 40
feet from the bodies. See id. at 130-131. She eventually picked it up, took
it inside, and laid it on Hollenshead’s bed. See id. at 131, 153. Soon
thereafter, Stephanie and Haley fled on foot, until they were able to flag down
a truck to drive them to the police station. See id. at 85-88, 132-133. When
Corporal Derek Johnson of the Pennsylvania State Police arrived on scene, the
rifle was lying near Jaedi’s body. See N.T., 1/24/2018, at 9, 13-14.

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2019




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