J-A17025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SHANE PAYNE                                :
                                               :
                      Appellant                :   No. 655 EDA 2016

           Appeal from the Judgment of Sentence February 19, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008200-2014


BEFORE:      GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                           FILED SEPTEMBER 08, 2017

        Appellant, Shane Payne, appeals from the judgment of sentence of

sixteen and one-half to thirty-three years of incarceration, imposed February

19, 2016, following a bench trial resulting in his conviction for voluntary

manslaughter, possession of an instrument of crime, three Uniform Firearms

Act violations (VUFAs), and recklessly endangering another person.1           We

affirm.

        The trial court summarized the pertinent factual background as

follows:

           On February 11, 2014, [Appellant] and Erick Roseborough
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 See 18 Pa.C.S. §§ 2503(a)(1), 907(a), 6105(a)(1), 6106 (a)(1), 6108, and
2705, respectively.
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     arrived on the corner of 40th and Poplar streets in Philadelphia
     where they remained, either outside on the corner or inside of
     the corner store, until the decedent, Marquis Williams, showed
     up. Williams entered the store, and [Appellant] followed him in.
     Shortly thereafter, Williams attempted to leave the store, but
     [Appellant] blocked his exit and the two got into a heated
     confrontation. During this fray, [Appellant] lifted up his shirt,
     revealing that he had a .45 caliber handgun with him.
     [Appellant] and Roseborough then left the grocery store while
     [Williams] retreated to the rear of the market and called his
     friend, Antoine Ball, who arrived at the store shortly after. Now
     armed, [Williams] and Ball left the store and walked down 40th
     Street. A few minutes later, [Appellant] walked back into the
     store, quickly looked around, and realizing [Williams] was no
     longer in the store, exited and walked down 40th Street in the
     same direction Williams and Ball had gone. A confrontation
     between [Appellant], Roseborough, Williams and Ball ensued, in
     which Roseborough threw a punch at Williams, and [Appellant]
     drew his gun and then Williams followed suit. Williams fired two
     shots from his .357, and hit Roseborough once in the leg.
     [Appellant] had a .45 caliber handgun, which he shot five times,
     striking Williams twice, including one shot directly to the center
     of his forehead, causing his death.

Trial Ct. Op. (TCO), 7/18/2016, at 2-3.

     Approximately one week after this incident, Appellant was arrested

and charged with third degree murder, possession of an instrument of crime,

three VUFAs, and recklessly endangering another person.        See Criminal

Information Sheet, 7/23/2014.     At trial on December 7, 2015, Appellant

asserted that he acted in self-defense.    See Notes of Testimony (N.T.),

12/7/2015, at 124-125, 132-134, 142-143. The trial court found him guilty

of the charges; however, the court reduced the charge of third degree

murder, and Appellant was convicted of voluntary manslaughter. See Trial

Ct. Op. (TCO), 7/18/2016, at 4.




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       Appellant was sentenced as described above on February 19, 2016.

Appellant did not file post-sentence motions.     Thereafter, Appellant timely

filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement.2

The trial court issued a Pa.R.A.P. 1925(a) opinion on July 18, 2016.

       On appeal, Appellant sets forth the following question for our review:

       Did the Commonwealth fail to disprove self-defense beyond a
       reasonable doubt where [Appellant] returned fire only after
       [Williams] shot a man just a few feet from [Appellant]?

Appellant's Br. at 5.3

____________________________________________


2
  Appellant timely filed a motion for extension of time to file a 1925(b)
statement. The trial court granted this request and extended the deadline to
twenty-one days after defense counsel’s receipt of all notes of testimony.
Order, 3/17/2016. See Pa.R.A.P. 1925(b)(2) (providing that the trial court
may enlarge the time period for filing a timely 1925(b) statement upon good
cause shown). Counsel for Appellant certified that he received the notes of
testimony on May 5, 2016; the 1925(b) statement was filed May 25, 2016.
Accordingly, the statement was timely.
3
  In his brief, Appellant makes two arguments: (1) that the Commonwealth
failed to disprove self-defense beyond a reasonable doubt, and (2) that the
Commonwealth failed to disprove that the killing was not justified based on
defense of others. The Commonwealth contends that Appellant waived the
right to assert defense of others by failing to include it his Pa.R.A.P. 1925(b)
statement. See Commonwealth’s Br. at 6 n.2.

Our review of the record reveals that Appellant did not argue that he acted
in “defense of others” at trial. The only mention of “defense of others” was
by the assistant district attorney during closing argument. See N.T. at 137.
Appellant’s Concise Statement presents a blanket challenge to the
sufficiency of the evidence to support any of his convictions, without
specifying any defense of others claim. Further, the lack of meaningful
analysis of this claim in the trial court’s 1925(b) opinion suggests that
Appellant failed to preserve his argument based on “defense of others.”
(Footnote Continued Next Page)


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      Appellant challenges the sufficiency of the evidence presented at trial

to disprove his claim of self-defense.            See Appellant's Br. at 15.   Our

standard of review is well settled.

      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict[-]winner, are sufficient to
      establish all elements of the offense beyond a reasonable doubt.
      We may not weigh the evidence or substitute our judgment for
      that of the fact-finder. Additionally, the evidence at trial need
      not preclude every possibility of innocence, and the fact-finder is
      free to resolve any doubts regarding a defendant's guilt unless
      the evidence is so weak and inconclusive that as a matter of law
      no probability of fact may be drawn from the combined
      circumstances. When evaluating the credibility and weight of the
      evidence, the fact-finder is free to believe all, part, or none of
      the evidence. For purposes of our review under these principles,
      we must review the entire record and consider all of the
      evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006)

(quotations and citation omitted).


                       _______________________
(Footnote Continued)

See, e.g., Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa. Super.
2009) (finding issues waived where on 1925(b) statement did not put trial
court on notice that appellant intended to raise the argument on appeal).

For the first time on appeal, Appellant asserts that the evidence was
insufficient to disprove that he acted in defense of others. See Appellant's
Br. at 18, 22-23. “Issues not raised in the lower court are waived and
cannot be raised for the first time of appeal.” Pa.R.A.P. 302(a). “New legal
theories cannot be raised on appeal.” Commonwealth v. Truong, 36 A.3d
592, 598 (Pa. Super. 2012) (en banc), appeal denied, 57 A.2d 70 (Pa. 2012)
(citing Commonwealth v. Hanford, 937 A.2d 1094, 1099 n.3 (Pa. Super.
2007), appeal denied, 956 A.2d 432 (Pa. 2008)); see Pa.R.A.P. 302(a).
Accordingly, we deem this argument to be waived.



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          Where there is a claim of self-defense, the Commonwealth
      has the burden to prove beyond a reasonable doubt that the
      killing was not committed in self-defense. In order to disprove
      self-defense, the Commonwealth must prove beyond a
      reasonable doubt one of the following elements: (1) that the
      defendant did not reasonably believe it was necessary to kill in
      order to protect himself against death or serious bodily harm, or
      that the defendant used more force than was necessary to save
      himself from death, great bodily harm, or the commission of a
      felony; (2) that the defendant provoked the use of force; or (3)
      that the defendant had a duty to retreat and that retreat was
      possible with complete safety. See 18 Pa.C.S.A. § 505(b)(2);
      see also Commonwealth v. Hill, 629 A.2d 949, 952 (Pa.
      Super. 1993). If the Commonwealth establishes any one of these
      three elements beyond a reasonable doubt, then the conviction
      is insulated from a defense challenge to the sufficiency of the
      evidence where self-protection is at issue. See Hill, 629 A.2d at
      952.

Commonwealth v. Burns, 765 A.2d 1144, 1148–49 (Pa. Super. 2000)

(internal citation omitted).

      Appellant contends that the Commonwealth failed to establish that he

provoked the use of force and that his use of deadly force was not justifiable

in self-defense.   According to Appellant, some of the trial court’s factual

findings were not supported by the record. He maintains that the evidence

that the trial court relied upon to conclude that Appellant threatened

Williams with a handgun at the store “was, at best, equivocal.” Appellant's

Br. at 17, 19. He also challenges the court’s finding that Appellant “fired five

shots at [Williams] before [Williams] shot [Roseborough].”          Id. at 20.

According to Appellant, if the court had properly considered this evidence,

then the Commonwealth would have failed to establish “that [Appellant]




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J-A17025-17


provoked the later confrontation and then responded with excessive force.”

Id. at 20.

       In response, the Commonwealth maintains that it presented sufficient

evidence of provocation to disprove Appellant’s claim of self-defense beyond

a reasonable doubt. See Commonwealth's Br. at 7-9. The Commonwealth

maintains that the evidence established that Appellant threatened Williams

with a gun inside the store and that Appellant initiated the confrontation with

the victim that resulted in the killing.              Id.   Thus, the Commonwealth

concludes that Appellant cannot make out a valid self-defense claim. See

id. (citing Commonwealth v. Johnson, 331 A.2d 473, 476 (Pa. 1975) (“a

valid claim of self-defense cannot be made out by the killer when the killer

introduces a weapon into the encounter without provocation”)).

       Here, the issue is whether the Commonwealth presented sufficient

evidence of provocation to disprove Appellant’s claim of self-defense beyond

a   reasonable     doubt.      At   trial,     the   Commonwealth   presented   video

surveillance footage depicting the incident from various angles inside and

outside of the store. The video footage was interpreted for the court by a

detective at trial.4 The trial court found that Williams was in a corner store



____________________________________________


4
  We adhere to the findings of the fact finder, which are supported by the
record and testimony of the detective who interpreted the video-taped
events at trial. See N.T., 12/7/2015, at 28-80.



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J-A17025-17


and attempting to leave “when [Appellant] blocked his exit and the two

argued.” TCO at 4 (citing Notes of Testimony (N.T.), 12/7/2015, at 39-42).

      The Commonwealth also presented the eyewitness testimony of

Appellant’s cohort, Roseborough.      Roseborough’s testimony confirms that

Appellant and Williams had a very heated conversation at the door, which

lasted about thirty seconds.    See id. at 95, 100.      The Commonwealth

replayed the video in slow motion at trial for the factfinder. See id. at 96-

98.   Roseborough testified that Appellant “pulled his pants up” while

standing at the door and the Commonwealth suggested that Appellant

revealed something under his shirt.     Id. at 97-98.   Roseborough testified

that “[i]t look[ed] like a weapon.”    Id. at 98.   Based on Roseborough’s

testimony, the court found that during this conversation, “Appellant

brandished a .45 caliber handgun and threatened Williams.” TCO at 4 (citing

N.T. at 96-98).

      Based on the video footage, the court found that Appellant and

Roseborough followed Williams and confronted him again outside of the

store. See TCO at 4. Roseborough’s testimony confirms that they did so

because they were “looking for weed.”        See N.T. at 93.      When they

approached Williams, Roseborough asked Williams for some weed and

Williams said “get the **** out of here.”     Id.   Roseborough admitted to

pushing or taking a swing at Williams and then Williams pulled a gun and

shot Roseborough in the leg. See N.T. at 90-91, 94. After Williams pulled


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J-A17025-17


his gun, Appellant fired several times at Williams, striking him twice. See

id. at 90-91, 116-118.

      The trial court’s findings with regard to provocation are supported by

the record.   We reject Appellant’s arguments that the trial court erred in

making its factual findings. Evidence that an actor introduced a weapon into

the encounter without provocation “operates to deny the killer’s assertion

that he was free from fault in provoking the difficulty.” Johnson, 331 A.2d

at 476. Here, the evidence overwhelmingly proved that Appellant was not

free from fault because he voluntarily provoked or continued the encounter

which resulted in the killing, thereby violating his duty to retreat.

      Relying on Commonwealth v. Samuel, 590 A.2d 1245, 1248 (Pa.

1991), Appellant argues that he did not forfeit his right to use self-defense

by brandishing a weapon. He also argues that brandishing a weapon did not

establish his intent to cause serious bodily injury. See Appellant's Br. at 25.

However, Appellant’s reliance on Samuel is misplaced.           In Samuel, the

Court held that a defendant merely holding his gun at his side did not

constitute provocation because: 1) there was no other evidence of the

defendant’s intent to cause death or serious bodily injury as he had held the

gun at his side in a nonthreatening manner; and 2) following an initial

encounter, the defendant put down his gun, the intruder left the room but

then re-entered into the living room with a sawed-off shotgun, placing the

intruder in the position of aggressor. See Samuel, 590 A.2d at 1248-49.


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J-A17025-17


Unlike in Samuel, Appellant approached Williams on both occasions.

Appellant was continuously in the position of the aggressor.     There is no

justification available where the actor provoked the encounter that leads to

the killing.

      Further, Appellant’s reliance on Commonwealth v. Edwards, 292

A.2d 361 (Pa. 1972), is inapposite.        In that case, the Supreme Court

recognized that “appellant was assaulted in his own home, which relieved

him of any obligation to retreat.”   Edwards, 292 A.2d at 364.      Here, the

evidence clearly established that the events took place in a public place.

The second time Appellant approached Williams, Williams’ statement “get

the **** out of here” clearly indicated the tenor of the situation and gave

Appellant an opportunity to retreat, which he ignored. N.T. at 93. Unlike in

Edwards, Appellant was not relieved of any obligation to retreat.

      The evidence, when properly viewed in the light most favorable to the

Commonwealth as verdict winner, established that Appellant confronted

Williams with a deadly weapon and then followed Williams to start a second

confrontation that resulted in the killing. Here, the evidence was sufficient

to disprove Appellant’s claim of self-defense beyond a reasonable doubt

based on evidence that Appellant “provoked the use of force.” See Burns,

765 A.2d at 1149 (citing 18 Pa.C.S. § 505(b)(2)(i)).          This evidence

established that Appellant was not free from fault in provoking the encounter

that led to the killing.   See Johnson, 331 A.2d at 476.        Under these


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circumstances, the use of deadly force in self-defense was not justified. See

18 Pa.C.S. § 2503(a); see also 18 Pa.C.S. § 505(b)(2)(i)-(ii). Accordingly,

Appellant’s sufficiency challenge fails.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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