                              [J-16-2018][M.O. - Wecht, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                   EASTERN DISTRICT



COMMONWEALTH OF PENNSYLVANIA,                  :   No. 738 CAP
                                               :
                      Appellee                 :   Appeal from the Judgment of Sentence
                                               :   entered on 5/15/15 in the Court of
                                               :   Common Pleas, Washington County,
                                               :   Criminal Division at No. CP-63-CR-
                 v.                            :   0000236-2012
                                               :
                                               :
JORDAN ALEXANDER CLEMONS,                      :
                                               :
                      Appellant                :   SUBMITTED: April 9, 2018




                                  CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                    DECIDED: January 23, 2019


       I join Sections I-IV and VI-X of the majority opinion, and concur in the result as to

Section V.

       Section V relates to the assertion that the trial court erred in not providing a

voluntary intoxication instruction. Although I agree Appellant is not entitled to relief on

this claim, I would not conclude that “the record is devoid of any evidence proving that

[Appellant] actually ingested any intoxicants” during the relevant timeframe. Majority

Opinion, slip op. at 38 (emphasis added). As the majority notes, there was evidence

that Appellant may have used drugs at some point in time close to the incident, and he

was perceptibly intoxicated when he was taken in for questioning by the police.

Although these proofs do not establish the time at which Appellant may have ingested
drugs or alcohol, they do make it more likely that he was under the influence of some

sort of intoxicant at the time of the murder. I nonetheless concur in the result because,

in my view, the evidence was insufficient to allow a reasonable jury to find that Appellant

acted subject to diminished capacity at the relevant time. See generally Commonwealth

v. Markman, 591 Pa. 249, 284-85, 916 A.2d 586, 607 (2007) (explaining that

defendants are constitutionally entitled to an instruction on any recognized defense for

which there is sufficient record evidence to allow a reasonable jury to find in his favor).

       With that said, when there is some evidence along these lines, determining

whether it is sufficient to entitle the defendant to the requested instruction may be an

imprecise undertaking. As such, it would be preferable if, in close cases, trial courts

simply gave the instruction and let the jury weigh the facts accordingly. Such practice

would enhance the fairness of the trial, avoid the risk of error resulting in the grant of a

new trial, and reduce the need for appellate courts to make those types of sufficiency

determinations on a cold record.




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