J-S07021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTHONY MCGRIFF                          :
                                          :
                    Appellant             :   No. 341 EDA 2017

           Appeal from the Judgment of Sentence January 4, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006669-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 03, 2018

      Anthony McGriff appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas after a jury convicted him of

voluntary manslaughter, 18 Pa.C.S.A. § 2503(b), and possessing instruments

of crime, 18 Pa.C.S.A. § 907(a). Appellant challenges the denial of his pre-

trial motion to dismiss and his proposed jury instructions, as well as the

sufficiency of the evidence underlying his convictions. After careful review, we

affirm.

      On May 3, 2015, Appellant was arrested and charged with the murder

of his brother, John McGriff. Appellant filed a pre-trial motion seeking to

dismiss the charges due to claims of partial amnesia surrounding John’s death

and the subsequent police interview. Following a hearing, the trial court denied
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Appellant’s request to dismiss. The case proceeded to a jury trial on

September 27, 2016.1

       The evidence presented at trial, as summarized by the trial court, is as

follows:

       [Appellant] lived with his younger brother, John [], at an
       apartment they shared on the 5800 block of Christian Street,
       Philadelphia [] which was owned by their eldest brother, George
       McGriff.[] Early on the morning of May 3, 2015, at approximately
       12:15 a.m., George received a phone call from [Appellant], during
       which [Appellant] stated that he and John had been in a fight. In
       response to this phone call, George went over to the apartment
       and found John unresponsive and bleeding on the second floor.
       George called 911. [Appellant] was not home when George
       arrived. Medical and police personnel arrived on scene shortly
       thereafter, but John was pronounced dead at 1:00 a.m.

             John was stabbed a total of five times: twice in the chest,
       twice in the abdomen, and once in the back. These stab wounds
       perforated John’s heart, liver, stomach, diaphragm, and bowels.
       Blood was located throughout the home, having dripped from the
       second floor onto the ground floor, which also being present on
       the walls of the stairway, in the bathtub, and in the bedroom.

             [Appellant] returned to the house while [police were]
       processing the scene and admitted to police that it was his home.
       When police asked if [Appellant] had any information about the
       scene, [Appellant] said that John has been “acting weird” but did
       not say that he and John had been in a fight, as he had told
       George. Officers asked [Appellant] to stay at the scene, but
       [Appellant] left and went to the corner deli, where police later
       found him after he had purchased a beer there. Officers escorted
       [Appellant] back to the scene and noticed that [Appellant] had
       blood on his clothing. [Appellant] also had a cut on his thumb.
       When asked about the blood, [Appellant] stated that he had cut
       his thumb.
____________________________________________


1 At trial, the Commonwealth proceeded on both first degree murder, 18
Pa.C.S.A. § 2502(a), and third degree murder, 18 Pa.C.S.A. § 2502(c),
charges.

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            Police arrested [Appellant] who, after being handcuffed,
      stated that he had been involved in a fight with John and that John
      had tried to put a belt around his neck. [Appellant] also stated
      that he and John had fought over a knife. Police transported
      [Appellant] to police headquarters, where [Appellant] provided a
      statement. In his statement, [Appellant] said that he had gotten
      into a fight with John after John forced his way into [Appellant’s]
      room, that John attempted to put a belt around [Appellant’s] neck,
      and that during the fight John grabbed a knife that was beside
      [Appellant’s] bed. [Appellant] also stated that John cut
      [Appellant’s] thumb before [Appellant] flipped John onto his back
      and punched John in the chest and side. [Appellant] denied ever
      having the knife during the fight. When police asked how John got
      stabbed, [Appellant] stated “maybe when he fell, he fell on the
      knife.”

            Police recovered a knife with a four-and-a-half-inch handle
      and a six-inch blade behind a door in [Appellant’s] room. Testing
      of the stain on the knife revealed [Appellant’s] DNA mixed with
      the DNA of another person from whom there was insufficient data
      for an identification.

Trial Court Opinion, 4/10/17, at 2-4 (citations to the record omitted).

Appellant did not testify at trial. However, in order to present a justification

defense, defense counsel admitted to the jury that Appellant had stabbed

John, despite his contrary statement to the police.

      Following the close of evidence, the jury acquitted Appellant of the first

degree and third degree murder charges, but convicted him of the lesser-

included offense of voluntary manslaughter, as well as possessing instruments

of crime. The trial court later sentenced Appellant to an aggregate term of

nine to twenty years’ imprisonment, followed by a five year probationary term.

This timely appeal follows.




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      Appellant first challenges the sufficiency of the evidence underlying his

voluntary manslaughter and possessing instruments of crime convictions. Our

standard of review for a challenge to the sufficiency of the evidence is to

determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means

of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,

661 (Pa. Super. 2007) (citation omitted).

      “[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt

raised as to the accused’s guilt is to be resolved by the fact-finder. See id.

“As an appellate court, we do not assess credibility nor do we assign weight

to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d

581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not disturb

the verdict “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.”

Bruce, 916 A.2d at 661 (citation omitted).

      Voluntary manslaughter, as charged here, is defined as:

      (b) Unreasonable belief killing justifiable. – A person who
      intentionally or knowingly kills an individual commits voluntary

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      manslaughter if at the time of the killing he believes the
      circumstances to be such that, if they existed, would justify the
      killing under Chapter 5 [relating to justification] of this title, but
      his belief is unreasonable.

18 Pa.C.S.A. § 2503(b).

      Sometimes referred to as imperfect self-defense, unreasonable belief

voluntary manslaughter requires all of the other principles of justification be

met with proof that “an unreasonable rather than a reasonable belief that

deadly force was required to save the actor’s life.” Commonwealth v. Tilley,

595 A.2d 575, 582 (Pa. 1991).

      Section 505 of the Crimes Code sets forth the elements of self-defense:

      § 505. Use of force in self-protection

      (a)   Use of force justifiable for protection of the person. –
            The use of force upon or toward another person is justifiable
            when the actor believes that such force is immediately
            necessary for the purpose of protecting himself against the
            use of unlawful force by such other person on the present
            occasion.

18 Pa.C.S.A. § 505(a).

      “When 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.” Commonwealth v. Burns, 765 A.2d 1144, 1148-1149 (Pa.

Super. 2000) (citation omitted). In order to meet this burden, the

Commonwealth must prove “at least one of the following: (1) the accused did

not reasonably believe that he was in danger of death or serious bodily injury;

(2) the accused provoked or continued the use of force; or (3) the accused


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had a duty to retreat and the retreat was possibly with complete safety.”

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009)

(citation omitted). Once the Commonwealth has proven one of these elements

beyond a reasonable doubt, it has sufficiently disproven a defendant’s self-

defense claim. See Burns, 765 A.2d at 1149.

      Here, the Commonwealth presented sufficient evidence for the jury to

conclude, beyond a reasonable doubt, that Appellant’s use of force against his

brother was unreasonable. First, we note that Appellant’s actions following the

altercation support an inference that his actions were not entirely justified.

See Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990) (finding

that defendant’s failure to contact police and inconsistent stories, in part,

defeated justification defense). Appellant failed to contact police, initially

claimed to have nothing to do with John’s death, and denied stabbing John up

until the point of trial. Additionally, Appellant’s own description of the fight

brings into question the reasonableness of Appellant’s use of force. While

Appellant informed Detective Peterson that John attacked him with both a belt

and a knife, he clearly indicated that he was able to overpower John when

confronted with these items. Yet, as Dr. Brown testified, John was stabbed

five times—twice in the chest, and once in the abdomen, pelvis, and middle

of the back.

      Appellant asserts that his statement to the police cannot be used in

order to meet the Commonwealth’s burden of disproving the reasonableness


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of his actions. In support of his argument, Appellant relies on the holding in

Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001). There, our Supreme

Court overturned the defendant’s simple assault conviction after finding that

the Commonwealth failed to disprove the defendant’s claim of self-defense.

See id., at 345. In ruling in favor of the defendant, the Court noted that all of

the evidence adduced at trial supported the defendant’s claim that he

assaulted the victim in self-defense, and that the Commonwealth could not

sustain its burden of proof based solely on the fact finder’s disbelief of the

defendant’s testimony. See id. Appellant asserts that the facts in this case

are similar to the facts in Torres, and that therefore, the Commonwealth

should not be able to rely on his statements to defeat his assertion that his

actions were reasonable. We disagree.

      Unlike in Torres, the Commonwealth here did not rely on the jury’s

disbelief of Appellant’s statements to the police to prove the unreasonableness

of Appellant’s actions. Instead, the Commonwealth relied upon the truth of

Appellant’s statements in order to draw the inference of unreasonableness. A

defendant’s voluntary pretrial admission or confession is admissible as

substantive evidence against him at trial. See Commonwealth v. Ogrod,

839 A.2d 294, 327 (Pa. 2003). Thus, the holding in Torres is inapplicable.

Viewed in the light most favorable to the Commonwealth as verdict winner,

the evidence was sufficient to defeat Appellant’s claim of self-defense and

support Appellant’s conviction for voluntary manslaughter.


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      Additionally, Appellant claims the Commonwealth presented insufficient

evidence to sustain his possessing instruments of crime conviction. This claim

hinges on his contention that the evidence is insufficient to disprove his

justification defense. Specifically, Appellant contends that a finding of pure

self-defense negates the criminal intent necessary to support his possessing

instruments of crime conviction. However, because we found that the evidence

was sufficient to disprove his claim of self-defense and convict him of

voluntary manslaughter, his challenge to the sufficiency of the evidence

underlying his possessing an instrument of crime conviction fails.

      Appellant next alleges the trial court improperly denied his request to

supplement the trial court’s self-defense instruction. Specifically, Appellant

requested the following instruction:

      The Commonwealth cannot prove these elements [negating self-
      defense] beyond a reasonable doubt by the words alone in
      defendant’s statement. Disbelief of the defendant’s statement is
      not a substitute for the Commonwealth’s burden to disprove
      defendant’s claim of self-defense.

According to Appellant, the trial court’s failure to include this instruction in its

self-defense charge permitted the jury to rely on their disbelief of Appellant’s

statement in reaching their verdict and deprived him of a fair trial.

      “Our standard of review when considering the denial of jury instructions

is one of deference—an appellate court will reverse a court’s decision only

when it abused its discretion or committed an error of law.” Commonwealth




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v. Yale, 150 A.3d 979, 983 (Pa. Super 2016) (citation and brackets omitted).

And,

       [t]he trial court possesse[s] broad discretion in phrasing its
       instructions to the jury and [is] permitted to choose its own
       wording so long as the law [is] clearly, adequately and accurately
       presented to the jury for consideration. Furthermore, a trial court
       need not accept counsel’s wording for an instruction, as long as
       the instruction correctly reflects the law. It is axiomatic that, in
       reviewing a challenged jury instruction, an appellate court must
       consider the charge in its entirety, not merely isolated fragments,
       to ascertain whether the instruction fairly convey the legal
       principles at issue. Instructions will be upheld if they adequately
       and accurately reflect the law and are sufficient to guide the jury
       properly in its deliberations.

Commonwealth v. Fletcher, 986 A.2d 759, 802 (Pa. 2009) (citation

omitted).

       Here, while we acknowledge that Appellant’s requested instruction is an

accurate statement of the law, see Torres, 766 A.2d at 345, the trial court’s

instructions to the jury concerning the Commonwealth’s burden of proof

adequately prevented the jury from convicting Appellant based solely on their

disbelief of Appellant’s statement:

       Since the Commonwealth [has] the burden of proof in this case,
       the Commonwealth must prove to you that the defendant did not
       act in justifiable self-defense beyond a reasonable doubt … To
       carry its burden of proving that the defendant’s use of force was
       not justifiable self-defense in this case, the Commonwealth has to
       prove one of the following elements beyond a reasonable doubt.
       A, that at the time the defendant used the deadly force, either:
       One, the defendant did not actually believe that he was in danger
       of death or seriously bodily injury from the alleged victim, such
       that defendant needed to use deadly force to defendant himself
       at that moment. Or two, that while the defendant actually believed
       he needed to use such force, his belief was unreasonable in light
       of all the circumstances known to him…

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N.T., Trial, 9/28/16, at 211-212.

         This instruction clearly denotes only two circumstances in which the

Commonwealth can defeat Appellant’s self-defense claim: either by proving

that Appellant did not actually believe deadly force was necessary or by

proving that Appellant’s belief was unreasonable under the circumstances.

Neither permits the jury to rely solely on their disbelief of Appellant’s

statement, but rather requires active proof from the Commonwealth in order

to meet their burden. After reviewing the entirely of the trial court’s jury

instructions, we find that they accurately and adequately reflect the law

surrounding self-defense. As such, the addition of Appellant’s proposed

instruction would merely be superfluous. Appellant’s second claim on appeal

fails.

         Finally, Appellant claims that the trial court erred in failing to grant his

pre-trial motion to dismiss due to his diagnosis of partial amnesia. Appellant

alleges that his amnesia significantly hindered the presentation of his

justification defense and therefore resulted in a denial of due process, a fair

trial, and effective assistance of counsel. Thus, Appellant asserts that his

conviction should be overturned and his charges dismissed.

         Appellant’s claim of amnesia squarely implicates his competency to

stand trial. “A defendant is presumed competent and it is his burden to show

otherwise, the determination of which is within the sound discretion of the trial

court.” Commonwealth v. Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013)

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(citations omitted). In order to establish incompetency, a defendant must

prove that he was either unable to understand the nature of the proceedings

against him or participate in his own defense. See Commonwealth v.

Santiago, 855 A.2d 682, 694 (Pa. 2004); 50 P.S. 7402(a).

        The law surrounding pre-trial claims of amnesia was thoroughly

examined by a previous panel of this court. Specifically, the panel explained

that:

           Absent evidence of a mental disability interfering with the
           defendant’s faculties for rational understanding, it is
           settled that mere vacuity of memory is not tantamount to
           legal incompetence to stand trial. It is only where the loss
           of memory [a]ffects or is accompanied by a mental
           disorder impairing the amnesiac’s ability to intelligently
           comprehend his position or to responsibly cooperate with
           counsel that the accused’s guaranties to a fair trial and
           effective assistance of counsel are threatened and
           therefore incapacity to stand trial may be demonstrated.

        Our Supreme Court [has] rejected claims of amnesia-based
        incompetence … as follows:

           The defendant … is able to comprehend his position as one
           accused of murder, is fully capable of understanding the
           gravity of the criminal proceedings against him, and is able
           to cooperate with his counsel in making a rational defense
           as is any defendant who alleges that at the time of the
           crime he was insane or very intoxicated or completely
           drugged, or a defendant whose mind allegedly went blank
           or who blacked out or who panicked and contends or
           testifies that he does not remember anything.[Price, 421
           Pa. at 406, 218 A.2d at 763.]

           … As one commentator has stated:

              “In his plight the amnesiac differs very little from
              an accused who was home alone, asleep in bed, at
              the time of the crime or from a defendant whose

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               only witnesses die or disappear before trial.
               Furthermore, courts, of necessity, must decide guilt
               or innocence on the basis of available facts even
               where those facts are known to be incomplete, and
               the amnesiac’s loss of memory differs only in
               degree from that experiences by every defendant,
               witness, attorney, judge, and venireman. How
               much worse off is a generally amnesiac defendant
               on trial for murder, for example, than one who
               remembers all but the dispositive fact: who struck
               the first blow?” 71 Yale L.J. 109, 128 (1961).

In re R.D., 44 A.3d 657, 665-66 (Pa. Super. 2012) (some internal citations

omitted). Based upon this analysis, the panel in R.D. concluded that because

R.D. was able to comprehend the charges against him and fully participate in

his hearing, his claims of partial amnesia, limited to the criminal event in

question, did not render him incompetent to stand trial. See id., at 667.

       The analysis and rationale behind R.D. dictates the outcome of this

case. While Appellant claims to have no memory of stabbing John or speaking

to the police afterwards, he conceded at the hearing that he understood his

position and was able to cooperate with counsel when devising his defense. 2

See N.T., Hearing, 9/26/16, at 5. As explained in R.D., this is all that is

necessary to defeat an amnesiac’s claim that he is incompetent to stand trial.

Because the trial court correctly found Appellant competent to stand trial,


____________________________________________


2 In his brief, Appellant attempts to bolster his position by claiming that his
memory loss was accompanied by a mental disorder that impaired his ability
to “intelligently comprehend his position or to responsibly cooperate with
counsel.” However, this allegation directly flies in the face of his admission
that he was competent to stand trial. Therefore, we will not consider this
aspect of Appellant’s argument on appeal.

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Appellant’s pretrial motion to dismiss based upon an alleged incompetency

(amnesia) was properly denied.

     Judgment of sentence affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/18




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