J-A23033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JIBRELL I. LEWIS                           :
                                               :
                       Appellant               :   No. 3575 EDA 2015

               Appeal from the Judgment of Sentence July 8, 2015
     In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0005100-2013,
               CP-51-CR-0005101-2013, CP-51-CR-0005102-2013


BEFORE:      PANELLA, J., DUBOW, J., and FITZGERALD*, J.

MEMORANDUM BY FITZGERALD, J.:                        FILED DECEMBER 08, 2017

        Appellant, Jibrell I. Lewis, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his jury

trial convictions of first-degree murder,1 aggravated assault,2 and two

counts of firearms not to be carried without a license. 3 Appellant argues the

trial court erred in failing to suppress statements he made during his

interrogation and for barring the defense expert from testifying to

Appellant’s diminished responsibility. We affirm.

        We adopt the facts and procedural history set forth by the trial court’s
____________________________________________


1   18 Pa.C.S. § 2502(a).

2   18 Pa.C.S. § 2702(a).

3   18 Pa.C.S. § 6106(a).


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A23033-17



opinion.4      See Trial Ct. Op., 11/1/16, at 1-6.          In this timely appeal,

Appellant raises the following issues for our review:

            Whether the trial court erred in failing to order evidence of
            statements made by [Appellant] in response to police
            interrogation suppressed and excluded from trial?

            Whether the trial court violated Pa.R.E. 702 by barring
            defense witness Dr. Clarence Watson, M.D., J.D. from
            presenting expert testimony in support of [Appellant’s]
            defense of diminished responsibility and violated [Pa.R.E.]
            703 by ruling that Dr. Watson could not mention
            statements made to the police or to him by [Appellant] in
            the context of testifying to the basis for his expert opinion
            in support of [Appellant’s] defense of heat of passion and
            unreasonable self-defense unless [Appellant] testified at
            trial or unless the statements made to police were
            introduced into evidence by the Commonwealth?

Appellant’s Brief at 2.

        Appellant argues his statements made during his police interrogation

should have been suppressed because he was not properly advised of his

Miranda5 rights.6 Specifically, Appellant claims his statement was obtained

during    an    unlawful     two-step     interrogation   process,   and   that   the

____________________________________________


4 We note the trial court’s opinion states Appellant’s post-sentence motion
was denied on November 13, 2015; however, the motion was actually
denied by operation of law on November 16, 2015.

5   Miranda v. Arizona, 384 U.S. 436 (1966).

6 Although Appellant alleges the trial court erred in not suppressing his
statement to the police, the Commonwealth did not introduce Appellant’s
statement at trial and Appellant did not testify.




                                           -2-
J-A23033-17


Commonwealth failed to prove Appellant orally waived his Miranda rights.

       Additionally, Appellant argues the trial court violated Rules 702 and

703 of the Pennsylvania Rules of Evidence, respectively, by preventing

Appellant’s defense expert from testifying in support of Appellant’s claim of

diminished responsibility, and by not allowing the defense expert to mention

any of Appellant’s statements to the expert that would support Appellant’s

claims of provocation or unreasonable self-defense.7 Appellant contends he

did not contest shooting the victim and, therefore, his defense of diminished

responsibility was permissible under Rule 702 to show the absence of malice

and a specific intent to kill.        Moreover, Appellant asserts that Rule 703

permitted the defense expert to testify to statements Appellant made to the

expert that indicated Appellant has an “unspecified depressive disorder with

psychotic features” that would have prevented Appellant from formulating a

specific intent to kill. Appellant’s Brief at 32. Appellant concludes this Court

should vacate his judgment of sentence and remand for a new trial.          We

disagree.

       After a thorough review of the record, the briefs of the parties, the
____________________________________________


7 We note the trial court did not bar the defense expert’s opinion on
provocation or unreasonable self-defense, but rather precluded his
testimony regarding “self-serving” statements Appellant made to the expert
that did not have a factual basis otherwise introduced into evidence. Trial
Ct. Op. at 17-18. Nevertheless, the trial court instructed the jury on both
voluntary manslaughter and unreasonable self-defense. See N.T. Trial,
7/7/15, at 199-208. Furthermore, Appellant did not testify at trial and
defense counsel did not call the expert to testify on any basis.



                                           -3-
J-A23033-17


applicable law, and the well-reasoned opinion of the Honorable Sandy L.V.

Byrd, we conclude the trial court’s opinion comprehensively discusses and

properly disposes of the issues presented. See Trial Ct. Op. at 9-19 (finding

the totality of the circumstances indicates Appellant’s Miranda rights were

not violated as he knowingly, intelligently, and voluntarily waived them,

Appellant was not entitled to expert testimony on diminished capacity

because he lacked a medical basis for the defense, and the defense expert

could not testify to Appellant’s statements to the expert because they were

inadmissible hearsay and did not fall under any exception). Accordingly, we

affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




                                      -4-
                                                                                           Circulated 11 /17/2017 05:38 PM




           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                           CRIMINAL TRIAL DIVISION


 COM1\.10NWEALTH OF PENNSYLVANIA                                           CP-5 l-CR-0005100-2013
                                                                           CP-5l-CR-0005101-2013
                                                                           CP-51-CR-0005l02-2013


               v.                                                          SUPERIOR COURT
                          CP-51-CR-0005100-2013 Comm. v. Lawis. JbreU I.


                                                                                                       FILED
                                             Opinion


flBRELL LEWIS                                                              3575 EDA 2015
                               II 111111 II 111111111111111                                             NOV - 1 2016
                                        7520165531
                                                                                                  Criminal Appeals Unit
                                                        OPINION
                                                                                               First Judicial District of P
Byrd, J.                                                                                    November 1, 2016


        On July 8, 2015 a jury convicted defendant Jibrell Lewis of first-degree murder, aggravated

assault, and two counts of carrying a firearm without a license. Defendant was sentenced to life

imprisonment without the possibility of parole for first-degree murder and an aggregate

consecutive imprisonment term of seventeen (17) to thirty-four (34) years on the remaining

charges. After defendant's post-sentence motion was denied on November 13, 2015, he filed a

notice of appeal on November 25, 2015. On December 2, 2015 this court ordered defendant to file

a statement of matters complained of on appeal. Defendant filed his statement on December 23;

2015.


                                        STATEMENT OF FACTS
        On October 7, 2012, at or around 9:00 p.m., police officers responded to 711 North 3rd

Street and found two gunshot victims inside. Stephanie Freeman was pronounced dead at the

scene from a gunshot wound to her head. Dr. Edwin Lieberman, the Commonwealth's expert in

forensic pathology, concluded to a reasonable degree of medical certainty that the cause of her


Commw. v. Jibrell Lewis                                Page 1 of29
    death was one gunshot wound to her head, and that the manner of death was homicide. The bullet

entered the upper lid of her right eye, traveled through her brain, severing her brain stem, and

exited the rear left of her head. Because the bullet severed her brain stem, her life functions ceased

immediately. The presence of gunpowder stippling around her entrance wound and the absence

of soot on her body or clothing indicated that the gun was fired about eight (8) to twelve ( 12)

inches away from the front of Ms. Freeman's face. N.T. 07/01/15, pp. 93-96; N.T. 07/02/15, pp.

6-34, 67-68; N.T. 07/07/15, p. 14.

           Her daughter, Chrissy Johnson, 1 was found suffering from a gunshot wound to the left side

of the face, and was transported to Hahnemann Hospital for treatment. The bullet fractured Ms.

Johnson's left cheekbone and jaw. Surgery was performed and a bullet fragment was removed

from the joint of her jaw. Ms. Johnson survived her gunshot wound, but suffered nerve damage

to the left side of her face. She was released from the hospital on October 12, 2012. N.T. 07/01/15,

pp. 93-96; N.T. 07/02/15, pp. 67-68; N.T. 07/07/15, pp. 14, 26-27.

          Police Officer Clyde Frasier, Crime Scene Unit, responded on October 7, 2012 at 11:55

p.m., and observed blood everywhere inside the residence. He also found condoms on the third

floor. He recovered one projectile from the vestibule, and one .9mm fired cartridge casing from

the second floor landing. He submitted this ballistics evidence to the Firearms Identification Unit.

Officer Frasier also collected six (6) blood samples from the crime scene and submitted them to

the criminalistics laboratory. The DNA from the samples matched those of Chrissy Johnson and

Stephanie Freeman. N.T. 07/01/15, pp. 121-157; N.T. 07/07/15, p. 28.

          Chrissy Johnson was interviewed by homicide detectives on Octa ber 11, 2012 and October

12, 2012. She gave two statements and provided a description of defendant as the man who shot


1
 Chrissy Johnson testified that although she was born male, she had undergone sexual reassignment surgery over a
decade before this incident. N.T. 07/02/15, pp. 73-74.

Conimw. v. Jibrell Lewis                          Page 2 of29
her and her mother, and gave police his phone number. At trial, Ms. Johnson identified defendant

as the man who came to her home on the night of the incident, October 7, 2012 around 8:00 p.m.,

and shot her and her mother. Defendant had first called her in response to an advertisement for an

escort service that she placed on the internet. She spoke to defendant several times over the phone

before ultimately inviting him to her home. When defendant arrived, they went upstairs, sat down

and began a conversation. Shortly after his arrival at her home, Ms. Johnson performed oral sex

on defendant. She testified that defendant asked for vaginal sexual intercourse, but she declined.

Ms. Johnson testified that defendant was dissatisfied with her response and said something to the

effect: "This is what I come all the way down here for?" Defendant then demanded money from

her, at which point Ms. Johnson told him to leave and shouted for her mother, who was downstairs,

to call the police. When she tried to escort defendant out of her home he pulled a gun from his

jacket, and she ran into the bathroom. While Ms. Johnson was hiding in the bathroom, defendant

fired a shot through the door and the bullet struck her in the face. After being shot, she exited the

bathroom and told defendant she would give him money if he would leave. She and defendant

went back upstairs, and she gave him approximately one thousand ($1000) dollars. After giving

him the money, a struggle ensued when she tried, unsuccessfully, to grab the gun from his hand.

Afterward, defendant, gun in hand, ran down the stairs where he encountered and killed Stephanie

Freeman before exiting the home. N.T. 07/01/15, pp. 93-96; N.T. 07/02/15, pp. 46-143; N.T.

07/07/15, p. 14.

       Ms. Johnson gave Detective Kevin Judge the cell phone number that defendant had given

her earlier. After receiving this information, Detective Judge prepared a search warrant for that

phone number. Defendant's cell phone records showed that he used his cell phone near Chrissy

Johnson's home. Police also discovered that the cell phone was used numerous times on the 400



Commw. v. Jibrell Lewis                     Page 3 of29
block of North 41 st Street. As a result, police conducted surveillance of that area on October 12,

2012, starting around 11:15 a.m. N.T. 06/30/15, pp. 15-48; N.T. 07/02/15, pp. 145-160; N.T.

07/07/15, pp. 8-19.

       At around 11 :30 a.m., on Octa ber 12, 2015, Deputy Marshal Robert Clark, along with other

law enforcement agents, observed defendant exit a residence at 403 North 41 st Street. As he

walked toward Deputy Marshall Clark's unmarked vehicle, defendant adjusted his waistband and

revealed the butt of a firearm. Deputy Marshall Clark's observations resulted in a foot pursuit of

defendant, before he was ultimately stopped and arrested. Recovered from defendant was a black

semiautomatic handgun, and from inside a bag he was carrying the following items: a mask with

two eye holes cut out, a small vial containing an unknown liquid, a soft body armor vest, and a

laptop computer and other electronic items. N.T. 07/02/15, pp. 148-157.

       After his arrest, defendant was taken to Penn Presbyterian Medical Center, where he

received medical treatment.      He was subsequently transported to the Homicide Unit and

interviewed by Detective James Crone. In his interview, defendant stated he had never met Chrissy

J ohnson prior to the incident, but had found her number online, called her that day, and she invited

him over to her home. Upon arriving at her home, she invited him inside and they went upstairs.

He stated that Ms. Johnson began making sexual advances toward him, but when he tried to feel

between her legs, she stopped him. According to defendant's statement, when he felt between her

legs, he noticed that "something didn't feel right." He stated that Chrissy Johnson stood up and

"all the female stuff went out the window, the way she was talking and standing and everything

about her changed and I knew she was a man." The two then began yelling at one another, and a

physical fight ensued. He stated that Ms. Johnson overpowered him, and he pulled out his gun in

response. He further stated that she ran into the bathroom, but he thought she was going in there



Comntw. v. Jibrell Lewis                     Page 4 of29
to get a razor or a knife, so when she opened the door he shot her. Defendant stated that he went

down the stairs to leave, but that Stephanie Freeman grabbed him and when he pushed her away

the gun went off. However, the Commonwealth did not introduce his statement into evidence and

defendant did not testify at trial." Commw. Ex. 6.

           Police Officer Jesus Cruz testified as an expert in firearms identification and comparison.

He received the projectile and the fired cartridge casing recovered from the crime scene as well as

the projectile retrieved from Chrissy Johnson's jaw. He also received the semi-automatic firearm

that was recovered from defendant. After test-firing the semi-automatic firearm and comparing

the test-fired bullets to the two submitted projectiles, Officer Cruz concluded to a reasonable

degree of scientific certainty that they were both fired from that firearm.                     He was unable to

determine if the fired cartridge casing recovered from the scene was fired from that firearm due to

insufficient microscopic markings, Officer Cruz further opined that the gun would expel fired

cartridge casings to the rear right and that they could travel about three (3) to five (5) feet away

from the shooter. N,T. 07/01/15, pp. 121-157; N.T. 07/02/15, pp. 161Ml81.

           Detective Valdez Trower from the SEPT A police force recovered video surveillance

footage from the following Market-Frankford Line station stops for October 7, 2012 between the

hours of 7:00 p.m. and 9:30 p.m.: the 40th Street stop, the Spring Garden Street stop at 500 North

Broad Street, and the Girard Street stop at 1200 North Broad Street. He submitted the video

surveillance footage to Detective Kevin Judge. The video surveillance footage showed defendant

getting on a train at the 40th Street stop and getting off the train at the Spring Garden stop at about

8:30 p.m., which was a short distance from Chrissy Johnson's home. He was seen wearing a black

leather jacket and a black and gray scarf The video surveillance footage showed defendant



2   Defendant litigated a pre-trial motion to suppress the statement. The motion to suppress was denied.

Commw. v. Jibrell Lewis                               Page 5 of29
    returning to the Spring Garden Street stop at about 9:15 p.m. At that time, he was wearing the

    black leather jacket but no scarf On October 8, 2012, at 4:20 p.m., Officer Robert Flade recovered

    a black and gray scarf from the stairs leading to the second floor of 711 North 3rd Street.

    Defendant's DNA was found on that scarf. Detectives recovered the black leather jacket from

    defendant's residence. N.T. 07/02/15, pp. 181-183; N.T. 07/07/15, pp. 19-28.

            The Commonwealth also introduced evidence establishing that defendant did not have a

    valid license to carry a firearm in October 2012. N.T. 07/07/15, pp. 29-30.



                    STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
            Defendant raised the following issues in his Statement of Errors Complained of on Appeal,

in accordance with Pennsylvania Rule of Appellate Procedure l 925(b ):3

                    1.      The trial court's findings - with regard to the two-step
                    interrogation process to which Detective James Crone testified -
                    that Detective Crone advised Defendant Jibrell Lewis of his
                    Miranda rights before questioning the defendant pursuant to the first
                    step of the two step interrogation, and that the defendant made a
                    knowing, intelligent, and voluntary waiver of his Miranda rights
                    were clearly erroneous.
                    2.      In violation of the defendant's rights against self-
                    incrimination wider the United States and Pennsylvania
                    constitutions the trial court erred in failing to order evidence of both
                    the oral statements allegedly made by the defendant to Detective
                    Crone during the first step of the two step interrogation process, and
                    oral and written statements allegedly made by the defendant during
                    the second step of the two step interrogation process suppressed and
                    excluded from trial for the following reasons:
                             a)      the questioning of the defendant at the outset of the
                    first step of the two step interrogation process was not preceded by
                    adequate warnings pursuant to Miranda v. Arizona;
                          b)     the defendant did not make a knowing, intelligent,
                    and voluntary waiver of his Miranda rights prior to Detective


3
    The following is a verbatim account of defendant's statement.

Commw. v. Jibrel/ Lewis                               Page 6 of29
              Crone's questioning pursuant to the first step of the two step
              interrogation process;
                       c)      even if interrogation of the defendant at the outset of
              the first step of the two step interrogation process was preceded by
              Miranda warnings, the oral statements made by the defendant were
              not voluntary;
                      d)     the defendant's oral and written statements made
             during  the second step of the two step interrogation process were the
             unlawful fruit of the unlawful interrogation of the defendant during
             the first step of the two step interrogation process in that - even
             assuming that the defendant was advised of his Miranda rights at the
             outset of the second step of the two step interrogation process - the
             interrogation during the second step of the two step process was
             effectively a continuation of the first step interrogation in terms of
             the completeness and detail of the questions and answers to the first
             step and second steps of questioning, the two statements'
             overlapping content, the continuous manner and setting of the first
             and second steps, the continuity of police personnel, the degree to
             which the interrogator's questions treated the second step as
             continuous with the first and the systematic and exhaustive manner
             of the total time period of the two step interrogation process;

                     e)      statements made by the defendant during the second
             step interrogation of the two step interrogation process were not
             voluntary.
                             3.      In violation of Defendant Jibrell Lewis's
             right to present a defense pursuant to his due process right to a fair
             trial under the United States and Pennsylvania constitutions, the trial
             court erred
                             a)     by granting the Commonwealth's motion in
             limine to bar the testimony of defense expert Dr. Clarence Watson
             with respect to diminished capacity, and
                            b)      by significantly limiting Dr. Watson's
             testimony as to heat of passion and mistaken self-defense.
                     4.     In violation of Rule 703 of the Pennsylvania Rules of
             Evidence, the trial court erred by ruling that defense expert Dr.
             Clarence Watson could not mention, testify, or rely upon Mr.
             Lewis's statements to the police or to him in his psychiatric
             interview in explaining his expert opinion even though, pursuant to
             Rule 703 data and facts that arc not ordinarily admissible but are




Commw. v. Jibrell Lewis                     Page 7 of 29
              commonly considered by experts can be discussed by the expert as
              a basis for the expert's report and testimony.
                     5.       In violation of Defendant Jibrell Lewis's right to
              confrontation pursuant under the United States and Pennsylvania
              constitutions, the trial -court erred by denying the 'defense the
              opportunity to impeach by prior conviction the surviving
              complaining witness, Chrissy Johnson, the only Commonwealth
              eyewitness, with her 2005 conspiracy to commit theft of a
              prostitution customer. The court's error was especially egregious
              and prejudicial to the Defendant· in view of the relevance of the
              crimen falsi nature of the prior conviction to the defense's factual
              assertions in the instant case.
                      6.      In violation of Defendant Jibrell Lewis's right to
              present a defense pursuant to his due process right to a fair trial
              under the United States and Pennsylvania constitutions, the trial
              court erred by ruling that the defendant's 1996 robbery conviction,
              at age 16, could be used by the Commonwealth to impeach the
              defendant by prior conviction in the event the defendant took the
              stand and testified.
                     7.      In violation of Defendant Jibrell Lewis's due process
             right to a fair· trial under the United States and Pennsylvania
             constitutions, and specifically, in violation of Mr. Lewis's due
             process right to a jury instruction on Defendant's theory of defense,
             the trial court erred by refusing to give the jury a voluntary
             manslaughter jury instruction on the basis of heat of passion in the
             absence of cooling time.
                     8.      In violation of DefcndantJibre11 Lewis's due process
             right to a fair trial under the United States and Pennsylvania
             constitutions, and specifically, in violation of Mr. Lewis's due
             process right to a jury instruction on Defendant's theory of defense,
             the trial court erred by refusing to give the jury an involuntary
             manslaughter jury instruction on the basis of heat of passion in the
             absence of cooling time.
                     9.      The trial court abused its discretion in denying
             Defendant's post sentence motion claim for relief that the verdict of
             guilty to the charge of first degree murder was against the weight of
             the evidence.




Commw. v. Jibrell Lewis                   Page 8 of 29
                                             DISCUSSION

        Defendant first alleges that this court erred in denying his motion to suppress the statement

 he made to police. When reviewing a challenge to the suppression court's ruling, the appellate

 court is bound by the suppression court's findings of fact so long as they are supported by the

 record. Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984). The appellate court will

reverse this court's decision" 'only if there is an error in the legal conclusions drawn from those

findings.'"    Commonwealth v. Basking, 970 A.2d 1181, 1187 (Pa. Super. 2009) (quoting

Commonwealth v. Hill, 874 A.2d 1214, 1216 (Pa. Super. 2005)). Thus, the appellate court must

consider "whether the suppression court properly applied the law to the facts of the case."

Commonwealth v. Ruey, 586 Pa. 230, 240, 892 A.2d 802, 807 (2006).                  In cases where the

defendant's motion to suppress has been denied, the appellate court will " 'consider only the

evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read

in the context of the record as a whole, remains uncontradicted.' " In re J. V., 762 A.2d 376, 379

(Pa. Super. 2000) ( quoting Commonwealth v. Reddix, 513 A.2d 1041, 1042 (Pa. Super. 1986)).

Our Superior Cami has held that "it is the sole province of the suppression court to weigh the

credibility of the witnesses. . ... Further, the suppression court judge is entitled to believe all, part

or none of the evidence presented." Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super.

1995) (citation omitted). It is the Commonwealth's burden to prove by a preponderance of the

evidence that the evidence challenged by a defendant in his motion to suppress is admissible. See

Basking.

       This court did not err in denying defendant's motion to suppress the statements made to

Detective James Crone at the Homicide Unit. After defendant was taken into custody and treated

at the hospital, he was transported to the Homicide Unit, where he met with Detective James Crone.



Commw. v. Jibrell Lewis                       Page 9 of29
 At the suppression hearing, Detective Crone stated that he observed that defendant, despite an

 initial affect, appeared normal and was not under the influence of drugs or alcohol. However,

before a conversation ensued, Detective Crone orally warned defendant of his Miranda rights.

Indeed, defendant was provided the warnings from Form 75-33 lD and Form 75-33 lE, later

attached to his formal written statement.4 Defendant knowingly, intelligently and voluntarily



4
    The following warnings are provided in 75-33 lD:

                     We have a duty to explain to you and to warn you that you have the following
                     legal rights
               A. You have a right to remain silent and do not have to say anything at all
               B. Anything you say can and will be used against you in Court
               C. You have a right to talk to a lawyer of your own choice before we ask you any
                  questions and also to have a lawyer here with you while we ask questions
               D. If you cannot afford to hire a lawyer and you want one we will see that you have
                  a lawyer provided to you free charge, before we ask you any questions
               E.   If you are willing to give us a statement, you have a right to stop any time you
                    wish

        After Detective James Crone provided defendant with oral Miranda warnings from Form 75-33 ID, he asked
defendant the questions provided in 75-33 IE, which are as follows:
                    1.   Q. Do you understand that you have a right to keep quiet, and do not have
                         to say anything at all?

                    2.   Q. Do you understand that anything you say can and will be used against
                         you?

                    3.   Q. Do you want to remain silent?
                    4.   Q. Do you understand that you have a right to talk with a lawyer before we
                         ask you any questions?

                    5.   Q. Do you understand that if you cannot afford to hire a lawyer, and you
                         want one, we will not ask you any questions until a lawyer is appointed for
                         you free of charge?

                    6.   Q. Do you want to talk with a lawyer at this lime, or to have a lawyer with
                         you while we ask you questions?

                    7.   Q. Are you willing to answer questions of your own free will, without force
                         or fear, and without any threats or promises having been made to you?

Commw. v. Jibrell Lewis                                Page 10 of 29
 waived his Miranda rights. Shortly thereafter, Detective Crone provided a set of written Miranda

 warnings, which defendant again waived knowingly, intelligently and voluntarily.5 He then gave

 a formal written statement to Detective Crone, which was presented to defendant for his review

 and signature. After his review, defendant wrote an addendum at the bottom of page four ( 4) and

 then signed his statement.




 s The following questions were asked by Detective Crone and answered by defendant:
                  1.    Q. Do you understand that you have a right to keep quiet, and do not have
                        to say anything at all?

                        A. Yes.
                 2.     Q.    Do, you understand that anything you say can and will be used against
                       you?

                       A. Yes.
                 3.    Q. Do you want to remain silent?
                       A.     No.
                 4.    Q. Do you understand that you have a right to talk with a lawyer before we

                       ask you any questions?

                       A. Yes.
                 5.    Q.    Do you understand that if you cannot afford to hire a lawyer, and you
                       want one, we will not ask you any questions until a lawyer is appointed for
                       you free of charge?

                       A. Yes.
                 6.    Q. Do you want to talk with a lawyer at this time, or to have a lawyer with
                       you while we ask you questions?

                       A. No.
                7.     Q. Are you willing to answer questions of your own free will, without force
                       or fear, and without any threats or promises having been made to you?

                       A.    Yes.
Commw. Exh. 6, p. 2.


Commw. v. Jibrell Lewis                             Page 11 of 29
        After considering the evidence and determining the credibility of witnesses presented at

 the suppression hearing, this court concluded that defendant voluntarily, knowingly, and

intelligently waived his Miranda rights. This determination was made after considering the

following two factors:

               First[,] the relinquishment of the right must have been voluntary in
               the sense that it was the product of a free and deliberate choice rather
               than intimidation, coercion or deception. Second, the waiver must
               have been made with a foll awareness both of the nature of the right
               being abandoned and the consequences of the decision to abandon
               it. Only if the 'totality of the circumstances surrounding the
               interrogation' reveal both an uncoerced choice and the requisite
               level of comprehension may a court properly conclude that Miranda
               rights have been waived.
In re T.B., 11 A.3d 500, 505-506 (Pa. Super. 2010) (quoting Commonwealth v. Cephas, 522 A.2d

63, 65 (Pa. Super. 1987)). Those two requirements were met in this case. The credible evidence

established that defendant.was provided both oral.and written Miranda warnings. Defendant twice

waived his Miranda-rights without coercion or duress and in accordance with the constitutional

rights afforded to defendants in criminal cases. See Commonwealth v. Elmobdy, 823 A.2d 180,

183 (Pa. Super. 2003) (ruling that ''[i]t is within the suppression court's sole province as factfinder

to pass on the credibility of witnesses and the weight to be given to their testimony"). Defendant

was not intimidated, coerced, or deceived into making any of his statements. Rather, his decision

was freely and deliberately made. He was not deprived of basic necessities such as food, water,

or restroom breaks.    When defendant made his choice, he was alert and fully aware of his

surroundings. He was not under the influence of drugs or alcohol. Before defendant provided his

statement, he was twice warned of his Miranda rights. Defendant understood the nature of his

rights and the consequences of his decision to provide a statement to police. There is no support

in the record for defendant's claim that his Miranda rights were violated. Based on the totality of




Commw. v. Jibrell Lewis                      Page 12 of29
the circumstances, this court did not err in finding that he voluntarily, knowingly, and intelligently

waived his Miranda rights."




6   At the suppression hearing, this court made the following findings of fact and conclusions of law:
                             Both sides having rested on the motion to suppress, the Court will make
                    findings of fact and conclusions of law. Herein, defendant seeks to suppress
                    physical evidence and defendant's statements.
                            One:    On October     r:
                                                    2012, Chrissy Johnson was shot and injured and
                    Stephanie Freeman was shot and killed inside 711 North 3rd Street in Philadelphia.
                              Two: The surviving victim, Ms. Johnson, was taken to Hannemann
                    Hospital for treatment where on 10/9/12 detectives attempted to interview her for
                    a second time here at the hospital; and although intubated, she was able to provide
                    a written description of the shooter, a man she had met at J 3lh and Market who
                    later called her and came over to her home where the incident occurred.
                            Three: Based on that description and information obtained pursuant to
                    a warrant regarding the phones used, coupled with video surveillance tapes from
                    SEPT A, suspect was identified; to wit, this defendant.
                              The suspect depicted in C- l and C-2 is as aforementioned, the defendant
                    in this case, Jibrell Lewis.
                            As the investigation continued, again, utilizing the aforementioned
                    phone records, cell towers and the like, one of the persons in the defendant's
                    phone log identified Jibrell Lewis as the person depicted in C-1 and C-2.
                              Six:    Thereafter, surveillance was set up in the area of 403 North 41 '1
                    Street, defendant's home.
                             Seven: On that same day, 10/12/12, law enforcement agents, including
                    Deputy   US  Marshals, observed defendant exit the aforementioned property
                    carrying a bag while in the company of a female.
                            Eight: Defendant walked first in the direction of the agents and Deputy
                    Clark observed him, Jibrell Lewis, adjust his waistband, at which time the agent
                    observed the butt of a handgun.
                           Niue: Defendant was thereafter approached by various members of the
                    US Marshals' office who called out "Stop! Police!" to Mr. Lewis.
                             Defendant, however, did not heed. Rather, he dropped his bag and fled
                    with the officers in foot pursuit.
                              10:    Defendant was ultimately tased and a gun recovered in his
                    immediate vicinity. Likewise, the bag, its content, were also recovered by
                    authorities.
                             11:     As the foregoing makes clear, there was reasonable suspicion
                    to stop the defendant based on his possession of a handgun, probable cause
                    developed upon his abandonment of the property and subsequent flight.

Commw. v . Jibrell Lewis                                Page 13 of 29
                           Indeed, in light of the fact that the defendant fit the description of the
                  shooter in this case and was identified from phone records as the person who had
                  been in phone contact with Ms. Johnson, there was probable cause to an-est.
                            12:     Thus, the aforementioned evidence, including the gun and the
                  contents of the bag, was properly seized incident to a valid arrest or as abandoned
                  property.
                           13:     Once defendant was legally in custody, he was treated at
                  Hahnemann Hospital and later transported to the homicide unit where he was
                  interviewed by Detective Crone.
                            14:     The detective observed that defendant, despite an initial affect,
                  appeared normal and was not under the influence of drugs or alcohol. The
                  detective gave the defendant oral MIRANDA warnings which were waived and a
                  conversation ensued.
                            The detective stated that the oral warnings were the same ones utilized
                  in the subsequent written statement; that is, they were taken from a form not unlike
                  the 75-33ID and 75-331-E.
                           Prior to taking the written statement, defendant was provided formal
                  MIRANDA warnings which were committed to writing as was the subsequent
                  formal statement which the defendant signed.
                          14: [sic] During the course of the oral and written interviews, the
                  defendant was not coerced, abused or otherwise maltreated.
                         Indeed, the record reflects that water, food, cigarettes were given to the
                 defendant and he was afforded the use of the toilet facilities.
                           15:      Counsel's reliance on SEIBERT is misplaced.
                           By the language of that case, at 1024, Supreme Court 260 I, Justice
                 Sciuter makes the following remarks: "This case tests a police protocol for
                 custodial interrogation that calls for giving no warnings to the rights and counsel
                 until interrogation has produced a confession.
                          "Although such a statement is generally inadmissible, since taken in
                 violation of MIRANDA, the interrogating officer follows it with MIRANDA
                 warnings and then leads the suspect to cover the same ground a second time.
                          "The question here is the admissibility of the repeated statement.
                 Because the midstream recitation of warnings after interrogation and unwarranted
                 confession could not effectively comply with MIRANDA constitutional
                 requirement, we hold that a statement repeated after a warning in such
                 circumstances is inadmissible."
                          Clearly those arc not the facts of this case.
                         Finally, this Court finds the defendant's statements were made
                 knowingly, intelligently and voluntarily.
                          17:      Accordingly, the motion to suppress physical evidence and the
                 statements is denied.
N.T. 06/30/15, pp. 111-116.



Commw. v. Jibrell Lewis                             Page 14 of 29
        Defendant also contends that this court erred in granting the Commonwealth's motion in

 limine to bar defense expert Dr. Clarence Watson's opinion testimony on diminished capacity. In

 Commonwealth v. Miller, 627 A.2d 741, 748-749 (Pa. Super. 1993), the court explained that "[t]he

 decision to admit or exclude expert testimony lies within the sound discretion of the trial court

 [ and] the determination of the trial court will not be reversed unless an abuse of that discretion is

found to exist." In ruling on the admissibility of such evidence, "the trial court must decide

whether the evidence is relevant and, if so, whether its probative value outweighs its prejudicial

effect." Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373, 376 (1998).

        This court did not abuse its discretion in denying the admission of expert testimony on

diminished capacity. Indeed, expert testimony "is admissible in all cases, civil and criminal alike,

'when it involves explanations and inferences not within the range of ordinary training knowledge,

intelligence and experience.' " Commonwealth v. Walker, 625 Pa. 450, 486, 92 A.3d 766, 788

(2014) (quoting Commonwealth v. Leslie, 424 Pa. 331, 334, 227 A.2d 900, 903 (1967)). See also

Pa. R. Evid. 702 (relating to testimony by expert witnesses). However, "[a]s with all expert

opinion ... it is essential that the salient facts relied upon as the basis for the opinion be in the

record." Commonwealth v. Paskings, 447 Pa. 350, 355�356, 290 A.2d 82, 85 (1972). Stated

another way, "[a]n expert's testimony is admissible when it is based on facts of record and will

not cause confusion or prejudice." Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super.

2008). See also Commonwealth v. Blastoli, 685 A.2d 151, 167 (Pa. Super. 1996) (ruling that "only

expert testimony which assists the jury is admissible"). In Commonwealth v. Laird, 555 Pa. 629,

645, 726 A.2d 346, 353 (1999), the court explained that a diminished capacity defense "is only

available to a defendant who admits criminal liability but contests the degree of guilt."           A

successful diminished capacity defense "negates the element of specific intent and, thus, mitigates



Commw. v. Jibrell Lewis                      Page 15 of29
first-degree murder to third-degree murder." Commonwealth v. Rosen, 615 Pa. 305, 308, 42 A.3d

988, 990 n. l (2012). Our Supreme Court has further noted that "[ d]iminished capacity is an

extremely limited defense, which requires extensive psychiatric testimony establishing a defendant

suffered from one or more mental disorders which prevented him from formulating the specific

intent to kill." Commonwealth v. Cuevas, 574 Pa. 409, 418, 832 A.2d 388, 393 (2003).

        There was nothing in the expert report by Dr. Watson on the ultimate issue of whether or

not defendant had a mental disorder or defect that directly affected his ability to formulate the

specific intent to kill. At defense counsel's request, Dr. Clarence Watson conducted a psychiatric

examination of defendant on February 26, 2015. In Dr. Watson's April 24, 2015 report, he opined

that defendant suffers from an unspecified depressive disorder with psychotic features, coupled

with alcohol and substance abuse disorders. Dr. Watson's diagnosis was based on defendant's

"longstanding symptoms and medical records indicating a history of episodic depressive

symptoms, episodic experiences of auditory hallucinations, ·and ongoing abuse of various

substances." Dr. Clarence Watson's April 24, 2015 Psychiatric Evaluation Report p. 14. Dr.

Watson explained that defendant's "description of his interaction with others reflects a heightened

preoccupation with protecting himself and avoiding situations in which he could be victimized."

Id. Dr. Watson stated that this incident caused defendant to feel "overwhelmed with desperation

to escape and interfer[ed] with his ability to think." Id. at p. 15. However, nowhere in Dr.

Watson's report did he diagnose defendant with any cognitive brain disorder that limited his ability

to formulate the specific intent to kill.

        This case is analogous to Commonwealth v. Mctlullum, 558 Pa. 590, 596, 738 A.2d 1007,

1010 (1999), where our Supreme Court held that a diminished capacity defense was not established

because the expert "made no mention of Ithe defendant's] cognitive functions of deliberation and



Commw. v. Jibrell Lewis                     Page 16 of29
 premeditation at the time of the murder or of his ability - or inability - to formulate the specific

 intent to kill." Similarly, as aforementioned, the psychiatric expert in this case did not provide an

 opinion on this salient issue. See also Commonwealth v, Taylor, 583 Pa. 170, 188, 876 A.2d 916,

 927 (2005) (holding that "[t]he fact that [the defendant's] defense expert testified that [the

 defendant] was psychotic and suffered from varying degrees of mental illness does not ineluctably

suggest that he lacked the capacity to form a specific intent to kill"); Commonwealth v.

Zettlemoyer, 500 Pa. 16, 30, 454 A.2d 937, 944 (1982), abrogated on other grounds by

Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003) (rejecting conclusion that "a

diagnosis of 'schizoid personality with paranoid features' is relevant to the issue of a defendant's

mental capacity to form the specific intent to kill"). Because Dr. Watson's report gave no medical

basis for a diminished capacity defense, his proffered expert testimony on that issue was

inadmissible and it would have only confused the jury. See Commonwealth v. Watson, 945 A.2d

174, 176 (Pa. Super. 2008) (ruling that "[a]n expert's testimony is admissible when it is based on

facts of record and will not cause confusion or prejudice"); Commonwealth v. Rounds, 518 Pa.

204, 209, 542 A.2d 997, 999 (1988) (noting that "[w]ithout the facts, a jury cannot make any

determination as to validity of the expert's opinion"); Commonwealth v. Funke, 452 A.2d 857, 862

(Pa. Super. 1982) (quoting Commonwealth v. Zeger, 186 A.2d 922, 925 (Pa. Super. 1962), which

informed that "[ o ]ne of the duties of a trial judge is 'to clarify the issues so that the jury may

comprehend the questions they are to decide' "). Thus, defendant was not entitled to expert

testimony on diminished capacity because there was no medical basis for this defense.

       Defendant also contends that this court erred in a pretrial ruling by limiting Dr. Watson's

proposed expert opinion testimony regarding heat of passion voluntary manslaughter and

unreasonable belief voluntary manslaughter. Contrary to defendant's argument, this court did not



Commw. v. Jibrell Lewis                     Page 17 of29
limit Dr. Watson's proposed expert opinion testimony on these defenses. This court ruled that

defendant was permitted to introduce Dr. Watson's expert opinion on heat of passion voluntary

manslaughter and unreasonable belief voluntary manslaughter. However, Dr. Watson would be

precluded from testifying about self-serving statements that defendant made to him during his

psychiatric interview or the hearsay statements he made to police unless a factual basis for said

statements was introduced in evidence.           However, defendant did not testify and the

Commonwealth did not introduce defendant's statement. Thus, there was no factual basis for the

expert opinion.

       As mentioned above, this court did not err in precluding Dr. Watson from testifying about

the statements defendant made to him during the psychiatric interview or the statements defendant

made to police. In Commonwealth v. Miller, 627 A.2d 741, 748-749 (Pa. Super. 1993), the court

explained that "(t]he decision to admit or exclude expert testimony lies within the sound discretion

of the trial court [ and] the determination of the trial court will not be reversed unless an abuse of

that discretion is found to exist." In ruling on the admissibility of such evidence, "the trial court

must decide whether the evidence is relevant and, if so, whether its probative value outweighs its

prejudicial effect." Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373, 376 (1998). An

evidentiary ruling "will not be disturbed 'unless that ruling reflects manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.' "

Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa. Super. 2009) (quoting Commonwealth v.

Einhorn, 911 A.2d 960, 972 (Pa. Super. 2006)).

       There was no error in ruling that Dr. Watson could not testify to defendant's statements

because they were inadmissible hearsay that did not fall under any exception to the hearsay rule.

See Pa. R. Evid. 802 (stating that "[hjearsay is not admissible except as provided by these rules,



Commw. v. Jibrell Lewis                      Page 18 of 29
by other rules prescribed by the Pennsylvania Supreme Court, or by statute"). Certainly, an expert

"may base an opinion on facts or data in the case that the expert has been made aware of or

personally observed ... [i]f experts in the particular field would reasonably rely on those kinds of

facts or data in forming an opinion on the subject[.]" Pa. R. Evid. 703. In an attempt to establish

his claim that he committed heat of passion voluntary manslaughter or unreasonable belief

voluntary manslaughter, rather than first-degree murder, defendant sought to introduce expert

testimony that would have included his statements discussing his hearsay version of how the

incident occurred. As the court held in Commonwealth v. Towles, 630 Pa. 183, 208, 106 A.3d 591,

606 (2014), "[tjhere is a distinction between an expert using basic facts provided by laymen to

form an expert opinion, versus one who simply parrots out-of-court statements in court, thereby

acting as a conduit for hearsay." Furthermore, "Pennsylvania's Rules of Evidence do not provide

a mechanism for a criminal defendant to decline to testify and to avoid the rules of evidence by

using an expert witness to introduce his story into the record." Id. Consequently, this court did

not err in rnling that the defense expert could not "simply regurgitate what defendant told him"

because "[djefendant's version must come from the defendant on the witness stand and subject

him to cross-examination." N.T. 07/01/15, pp. 11-15. See also Commonwealth v. Miller, 605 Pa.

1, 21, 987 A.2d 638, 650 (2009) (holding that trial counsel was not ineffective for being unable to

elicit expert testimony regarding heat of passion because defendant refused to testify, thereby

making it "virtually impossible for counsel to convince the trial court" of his defense). Thus,

defendant's claim has no merit.

       Defendant next alleges that his right to confrontation was violated when this court denied

his request to introduce a prior conviction of Clu·issy Johnson. It must first be noted that defendant

did not file a pre-trial motion seeking the admission of this evidence under Pennsylvania Rule of



Comntw. v. Jibrell Lewis                     Page 19 of 29
Evidence 404. Nonetheless, before trial commenced, this court was informed that Chrissy Johnson

was arrested in 2004 and convicted in May 2005 on charges of possession of an instrument of

crime, simple assault, and conspiracy.

        This court properly denied the admission of this prior conviction because defendant failed

to establish that they were crimen falsioffenses, Pennsylvania Rule of Evidence 609(a) provides

that: ''[fJor the purpose of attacking the credibility of any witness, evidence that the witness has

been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be

admitted if it involved dishonesty or false statement." Defendant did not present any evidence

proving that Chrissy Johnson's conviction of possession of an instrument of crime, simple assault,

and conspiracy involved dishonesty or false statement. Thus, there was no error in determining

that these convictions were not crimen falsi.

       Additionally, the prior conviction did not fall within the ten ( 10) year time period

proscribed by Rule 609. According to defense counsel, Chrissy Johnson was convicted on May 5,

2005, which was approximately ten ( 10) years and two (2) months from July 1, 2015, the date

defendant's trial commenced. Defense counsel conceded that Chrissy Johnson's convictions were

not within the ten (10) year time period. See N.T. 07/01/15, pp. 21-22. Pennsylvania Rule of

Evidence 609(b) states that if more than ten ( 10) years have passed, "[e]vidence of the conviction

is admissible only if: (1) its probative value substantially outweighs its prejudicial effect; and (2)

the proponent gives an adverse party reasonable written notice of the intent to use it so that the

patty has a fair opportunity to contest its use." In determining that the probative value of this

evidence did not substantially outweigh its prejudicial effect, this court considered its ruling that

defendant would not be prohibited from impeaching Chrissy Johnson on a crimen falsi conviction




Commw. v. Jibrell Lewis                      Page 20 of 29
that fell within the ten (I 0) year time period. 7 The record shows that both the prosecutor and

defense counsel had the opportunity to question Chrissy Johnson about her prior federal conviction

for passport fraud under a different name. See N.T. 07/01/15, pp. 17-28; N.T. 07/02/15, pp. 75-

76; 102-103.8 Thus, defendant suffered no prejudice from this court's ruling because he was


7
    This court made the following ruling:
                             The issue .of.a 2004 arrest, that is, one that resulted in conviction for
                    possession of an instrument of crime, simple assault and criminal conspiracy is
                    one to which l have given due consideration.
                              There has been no Rule 404(b) motion filed. The look-back period has
                    expired. It's more than ten years-old. I am called upon to balance the probative
                    value of that conviction against its prejudicial effect.
                              I am assisted in that regard with the knowledge that the complainant in
                    this case has a second conviction for crimen falsi which falls within the ten year
                    period that we have been discussing. I rule that you may use the second
                  · conviction. You maynot use the first conviction-for any purpose.
N.T. 07/01/15, p. 27.
8
    When the Commonwealth conducted direct examination of Chrissy Johnson, the following exchange occurred:
                   [Assistant District Attorney]:      You told us that you were born as Christopher
                   Johnson, but since that time you used a number of names, haven't you?
                   [Chrissy Johnson]:                   Yes.
                   [Assistant District Attorney):       You used Gerald McDonald.
                   (Chrissy Johnson}:                   Yes.
                   [Assistant District Attorney):     That's the name that we will talk about later
                   - that's the name you were convicted Federally of fraud, correct?
                   [Chrissy Johnson]:                   Yes.
                   [Assistant District Attorney]:       You also used the name of Christopher
                   McDonald, correct?
                   [Chrissy Johnson):                  I believe so.
                   [Assistant District Attorney):      You used the name Wayne McDonald,
                   correct?
                   [Chrissy Johnson]:                  l think so.
                   (Assistant District Attorney]:      You used the name Jacqueline Williams,
                   correct?
                   [Chrissy Johnson}:                  Yes.
                   [Assistant District A Horney J:     You used all those names, essentially aliases,
                   correct?
                   [Chrissy .Johnson]:                 I was going through a transition.
                   I Assistant District Attorney]:    They're different names in which you used to
                   hide your identity to law enforcement, correct?

Commw. v. Jibrell Lewis                              Page 21 of 29
afforded the opportunity to attack Chrissy Johnson's credibility. Accordingly, defendant's claim

is without merit.

         Defendant further contends that this court erred in permitting the Commonwealth the

opportunity to impeach him with his 1996 conviction for robbery if he testified at trial. To the

contrary, this court did not err in permitting the introduction of this evidence. Pursuant to Rule of

Evidence 609(b ), impeachment by evidence of a criminal conviction is admissible if it is within

ten years of the "witness's conviction or release from confinement for it, whichever is later."

Defendant was sentenced for his robbery conviction on March 2, 1999, at CP-51-CR-O 100811-

1997. His sentence was completed in 2009, thereby making it a prior conviction that was about

six (6) years removed from the commencement of defendant's trial in 2015. See N.T. 06/30/15,

pp. 116-117; N.T. 07/01/15, pp. 24-28. Consequently, his robbery conviction was within the ten




                 [Chrissy Johnson 1:                 Yes. I fled my country from persecution. Of
                 course I will hide my identity.
N.T. 07/02/15, pp. 75-76. Defense counsel further addressed Chrissy Johnson's prior conviction during cross-
examination of her testimony:
                 [Defense Counsel]:                  I already mentioned it, I think the district
                 attorney did, as well, but you were convicted of fraud in Federal Court, correct,
                 2005?
                 /Chrissy Johnson]:                  Yes.
                 [Defense Counsel]:                  You were convicted under the name of
                 Gerald McDonald, correct?
                 [Chrissy Johnson]:                  I believe so.
                 [Defense Counsel]:                  All of the records of that Federal conviction
                 describe you as a black male, correct?
                 [Chrissy Johnson):                   It's a passport, it's an identity. I fled my
                 country in fear of my life. I obtained an identity. I went oversees [sic] and had
                 my sex change in surgery. In detail, that's what it's about.
                 [Defense counsel]:                  You committed a crime of dishonesty,
                 correct?
                 [Chrissy Johnson):                  Correct.
N.T. 07/02/!5, pp. 102-103.


Commw. v. Jlbrell Lewis                            Page 22 of29
( 10) year time limit. Although this was a juvenile adjudication, this evidence was admissible for

impeachment purposes. See Pa. R. Evid. 609(a), (d); 42 Pa. C.S. §6354(b). Even if this evidence

is considered to be more than ten (l 0) years old, the probative value of this evidence substantially

outweighed any prejudicial effect. Had defendant testified at trial, he would have been subjected

to impeachment like any other witness. See Commonwealth v. Dobrolenski, 460 Pa. 630, 640, 334

A.2d 268, 273 (1975) (avowing United States Supreme Court's ruling in Brown v. United States,

356 U.S. 148, l 54M 155 (1958), that if a defendant "takes the stand and testifies in his own defense,

his credibility may be impeached and his testimony assailed like that of any other witness").

However, defendant decided to not testify at trial. Consequently, his prior conviction was not

admitted into evidence. Accordingly, defendant cannot establish prejudice. Thus, this claim is

meritless.

       Defendant also contests this court's denial of his request to instruct the jury on voluntary

manslaughter. In reviewing a trial court's refusal to provide a jury instruction, the appellate court

reviews whether the jury instruction is warranted by the evidence presented in the case.

Commonwealth v. Baker, 963 A.2d 495 (Pa. Super. 2008). The Superior Court has further

explained that "[ijn examining the propriety of the instructions a trial court presents to a jury, our

scope of review is to determine whether the trial court committed a clear abuse of discretion or an

error of law which controlled the outcome of the case." Commonwealth v. Nyankun A. Thomas,

904 A.2d 964, 970 (Pa. Super. 2006).

       In Commonwealth v. Kim, 888 A.2d 847 (Pa. Super. 2005), the court held that "a homicide

defendant is entitled to a jury instruction on voluntary manslaughter only 'where the offense has

been made an issue in the case and where the evidence would reasonably support such a verdict.' "

Id. at 852 ( quoting Commonwealth v. Frederick Thomas, 552 Pa. 621, 640, 717 A.2d 468, 4 78



Commw. v. Jibrell Lewis                      Page 23 of29
 (1998)). The crime of vo)untary manslaughter "involves a killing in a sudden and intense passion

 resulting from a serious provocation or an unreasonable belief in self-defense." Commonwealth

 v. Cox, 546 Pa. 515, 539, 686 A.2d 1279, 1291 (1996). Voluntary manslaughter "is an appropriate

 verdict for 'heat of passion' killings, where, 'at the time of the killing, (the defendant] acted under

 sudden and intense passion [ due to] serious provocation by the victim.' " Kim, 888 A.2d at 853

 ( quoting Frederick Thomas, 552 Pa. at 640, 717 A.2d at 4 77). Specifically; "heat of passion"

includes "emotions such as anger, rage, sudden resentment or terror, which renders the mind

incapable of'reason." Commonwealth v. Speight, 544 Pa. 451, 467, 677 A.2d 317, 324-325 (1996),

abrogated on other grounds by Freeman. In Commonwealth v. Copeland, 554 A,.2d 54, 57 (Pa.

Super. 1988), the court explained that "[tjhe passion which will reduce an un]awful killing to

voluntary manslaughter must be caused by legally adequate provocation." The law "is quite

explicit that the determination of whether a certain quantum of provocation is sufficient to support

the defense of voluntary manslaughter is purely an objective standard."            Commonwealth v.

McCusker, 448 Pa. 382, 389, 292 A.2d 286, 289 (1972). In determining whether there was serious

provocation, one must consider " 'whether a reasonable [person] confronted by the same series of

events, would become impassioned to the extent that his mind would be incapable of cool

reflection.'" Kim, 888 A.2d at 853 (quoting Commonwealth v. Galloway, 485 A.2d 776, 783 (Pa.

Super. 1984)).

        This court did not abuse its discretion in denying defendant's request because there was no

evidence to reasonably support a voluntary manslaughter verdict. See Commonwealth v. Bohonyi,

900 A.2d 877, 883 (Pa. Super. 2006) (quoting Commonwealth v. Buksa, 655 A.2d 576, 583 (Pa.

Super. 1995), which held that the trial court has no obligation "to instruct a jury upon legal

principles which have no applicability to the presented facts").



Commw. v. Jibrell Lewis                       Page 24 of29
       The evidence presented at trial did not establish that defendant acted under a sudden and

intense passion due to serious provocation by the victim. Defendant answered Chrissy Johnson's

advertisement offering escort service on her internet webpage, and arranged to meet her. When

he arrived at her home, she performed oral sex on him. Defendant expressed interest in having

vaginal sexual intercourse with her, but she declined. After she denied his request, he demanded

money, and pulled out his gun when Ms. Johnson asked him to leave. He then shot her in the face

before shooting her mother, Stephanie Freeman, in the head.

       There is no support for the argument that defendant was seriously provoked by the victim.

In Commonwealth v. Busanet, 618 Pa. 1, 34, 54 A.3d 35, 55 (2012), the court explained that "both

passion and provocation must be established" before a killing is considered voluntary

manslaughter. Defendant may well have been upset that Chrissy Johnson rejected his demand for

vaginal sexual intercourse. He may have also felt betrayed by Chrissy Johnson's alleged deceit

regarding her gender identity.   However, there is no basis for concluding that such minor

indignities rose to the level of provocation necessary to require a jury instruction on voluntary

manslaughter. See, e.g., Commonwealth v. Martin, 607 Pa. 165, 5 A.3d 177 (2010) (concluding

that the decedent's sexual advances toward the defendant may have triggered the defendant's post-

traumatic flashback of childhood sexual abuse, but it did not render defendant incapable of cool

reflection); Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277 (2011) (holding that the

defendant was not sufficiently provoked into heat of passion by argument with victim occurring

shortly before murder or by other serious issues in relationship); Commonwealth v. Sanchez, 623

Pa. 253, 315, 82 A.3d 943, 980 (2013), cert. denied, 135 S.Ct. 154 (2014) (concluding that the

defendant was not seriously provoked when there was no gun in the decedent's possession and

when the defendant "could have simply retreated" from the situation). lnstead of leaving the



Commw. v. Jibrell Lewis                    Page 25 of29
premises like a reasonable person would have done in this situation) defendant resorted to violence.

He shot Chrissy Johnson in her face, causing permanent injury. He also shot Stephanie Freeman

in her head, killing her.       Clearly, the evidence does not establish that a reasonable person

confronted with these circumstances would have become so impassioned that he would have been

incapable of cool reflection.

        Rather, the evidence clearly showed that defendant committed first-degree murder, instead

of voluntary manslaughter, as he possessed malice and the specific intent to kill the decedent. See

Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972) (reiterating that "it has long

been the law that the use of a deadly instrument on a vital part of the body is sufficient to establish

the specific intent to kill"); Commonwealth v. Davis, 479 A.2d 1077, 1080 (Pa. Super. 1984)

(ruling that "[a]n intent to kill can be formed in a fraction of a second" because "[a]ll that is

required is a conscious, fully formed intent to bring about the death of another"). See also

Commonwealth v. Pirela, 510 Pa. 43, 51, 507 A.2d 23, 27 (1986) (quoting Commonwealth v.

Berry, 461 Pa. 233, 237, 336 A:2d 262, 264 (1975), which noted that voluntary manslaughter" 'is

a concession to the infirmity of human nature, not an excuse for undue or abnormal irascibility' ").

In light of these facts, a voluntary manslaughter jury instrnction was not warranted, See Speight

(holding that trial court did not err in denying request for voluntary manslaughter heat of passion

instruction because there was no evidence that the defendant acted under heat of passion or that

killing resulted from serious provocation by the victim); Commonwealth v. Arrington, 624 Pa. 506,

86 A.3d 831 (Pa. 2014)(upholding trial court's denial of voluntary manslaughter heat of passion

instruction because evidence provided that the defendant intentionally killed victim by shooting

her in a vital area of the body).




Commw. v. Jibrell Lewis                       Page 26 of29
        Defendant's next claim is that this court erred in denying his request for a jury instruction

 on involuntary manslaughter. In Commonwealth v. Chambers, 546 Pa. 370, 382, 685 A.2d 96,

 102 (1996), the court held that "[t]he trial court has broad discretion in phrasing jury instructions,

and may choose its own wording[.]" The Superior Court has also explained that "[i]n examining

the propriety of the instructions a trial court presents to a jury, [its] scope of review is to determine

whether the trial court committed a clear abuse of discretion or an error of law which controlled

the outcome of the case." Nyankun A. Thomas, 904 A.2d at 970. Additionally, an appellate court

will not find error "where the court fails to use the specific language requested by the accused, but

rather only where the applicable law is not adequately, accurately and clearly communicated to the

jury." Commonwealth v. Leber, 802 A.2d 648, 651 (Pa. Super. 2002). In reviewing a trial court's

refusal to provide a jury instruction, the appellate court reviews whether the jury instruction is

wan-anted by the evidence presented in the case. 'Commonwealth v. Baker, 963 A.2d 495 (Pa.

Super. 2008). Indeed, a trial court has no obligation "to instruct a jury upon legal principles which

have no applicability to the presented facts." Commonwealth v. Bohonyi, 900 A.2d 877, 883 (Pa.

Super. 2006) (quoting Commonwealth v. Buksa, 655 A.2d 576, 583 (Pa. Super. 1995)).

         In Commonwealth v. Fletcher, 604 Pa. 493, 544, 986 A.2d 759, 791 (2009), the court held

that "[ijnvoluntary manslaughter is defined as a killing that occurs when, 'as a direct result of the

doing of an unlawful act i11 a reckless or grossly negligent manner, [the defendant] causes the death

of another person.' . . . . 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.'' Id. (citing 18 Pa. C.S.

§2504(a)). See also Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa. Super. 1996) (holding that

"[ajbsent some evidence in the record showing that the [victim's] death was an accident caused by

[the defendant's] extreme carelessness, [the defendant] is not entitled to an involuntary



Commw. v. Jibrell Lewis                      Page 27 of29
manslaughter instruction"). In this case, there was no credible evidence to support the conclusion

that the killing was accidental or that it resulted from defendant acting in a reckless or grossly

negligent manner. Instead, as evidenced by the jury's verdict, defendant possessed the specific

intent to kill Stephanie Freeman, which warranted his first-degree murder conviction. Because the

evidence did not support an involuntary manslaughter verdict, this court did not err in denying

defendant's request for an instruction on this offense. Thus, defendant's claim is meritless.

        Defendant's final allegation is that this court erred in denying his post-sentence motion.

Specifically, defendant claims that this court erred in denying his request for relief on the basis

that the guilty verdict to the charge of first-degree murder was against the weight of the evidence.

A new trial will be granted on this basis " 'only when the jury's verdict is so contrary to the

evidence as to shock one's sense of justice.' " Commonwealth v. Vanluvner, 599 Pa. 617, 630,

962 A.2d 1170, 1177 (2009) ( quoting Commonwealth v. Cousar, 593 Pa. 204, 222, 928 A.2d 1025,

1036 (2007)). In reviewing whether the verdict was against the weight of the evidence, the trial

court must exercise its discretion in determining whether" 'certain facts are so clearly of greater

weight that to ignore them or to give them equal weight with all the facts is to deny justice.' "

Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000) (quoting Thompson v.

Philadelphia, 507 Pa. 592, 601, 493 A.2d 669, 674 (1985)). The appellate court's review "is

limited to whether the trial judge's discretion was properly exercised, and relief will only be

granted where the facts and inferences of record disclose a palpable abuse of discretion."

Commonwealth v. Diggs, 597 Pa. 28, 39, 949 A.2d 873, 879 (2008). In this case, defendant has

not highlighted any evidence that should have been given greater, lesser, or equal weight than the

evidence that was introduced at trial. Moreover, the jury reached its verdict after duly considering

all relevant and properly admitted evidence. Consequently, defendant's claim that the verdict was



Commw. v. Jlbrell Lewis                     Page 28 of 29
against the weight of the evidence has no merit. Thus, this court did not abuse its discretion in

denying defendant's post-sentence motion.

        Accordingly, in light of the foregoing, the judgment of sentence should be AFFIRMED.

                                                                   BY THE COURT,


                                                                   ��
                                                                  �d,J.




Commw. v. Jibrell Lewis                     Page 29 of 29
