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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
LAWRENCE PICKENS,                          :          No. 2795 EDA 2017
                                           :
                          Appellant        :


             Appeal from the Judgment of Sentence, April 26, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0002510-2016


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED APRIL 22, 2019

        Lawrence Pickens appeals the April 26, 2017 judgment of sentence in

which the Court of Common Pleas of Philadelphia County sentenced him to

an aggregate term of life imprisonment for murder in the first degree,

violation of the Uniform Firearms Act, and possession of an instrument of

crime.1 After careful review, we affirm.

        The facts, as recounted by the trial court, are as follows:

              Before midnight on August 6, 2015, the decedent[,]
              Moses McMillian[,] borrowed money from his sister
              Jazzmen McMillian and walked to the Happy Garden
              Chinese Store at the intersection of Norris and
              Croskey Streets in North Philadelphia. There, the
              decedent encountered two juvenile females, sisters
              A.D. and T.D., aged fourteen and fifteen,
              respectively. The three proceeded to argue with

1   18 Pa.C.S.A. §§ 2502, 6106(a)(1), and 907(a), respectively.
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          each other, whereupon one of the sisters slapped the
          decedent.

          The decedent returned to his home at 1931 North
          Croskey Street and informed Jazzmen McMillian, his
          brother    Michael     McMillian,   family    friend
          Jimmy Flippen, and other men at the house that he
          had been attacked at the Chinese store. The group
          accompanied the decedent back to the store, where
          they verbally confronted A.D. and T.D. and returned
          home.

          A.D. and T.D. ran to their home, where they
          encountered their cousin Taleia Travers and
          recounted the events that occurred at the Chinese
          store. Travers then joined with her friends Yasmene
          “Momma’s” Johnson, Ra’Shonda “Ray-Ray” Mack,
          and Roshaanda “Mommas” Tolbert and proceeded to
          the McMillian home at 1931 North Croskey Street,
          rang    the    front   doorbell   and     challenged
          Jazzmen McMillian to a fight.

          Travers’ group, comprised primarily of females, and
          Jazzmen McMillian’s group, comprised primarily of
          males and containing the decedent, proceeded to the
          middle of the block to continue the dispute. The
          argument escalated into a fist fight between Travers
          and Jazzmen McMillian.     When it appeared that
          Travers was winning the fight, the decedent
          intervened by punching Travers.          After Mack,
          Johnson,      and     Tolbert      began      kicking
          Jazzmen McMillian, the decedent pushed them away
          from his sister. The McMillian group then retreated
          back to 1931 North Croskey Street.

          Immediately after the fight, Ra’Shonda Mack called
          the father of her child, [appellant], and informed him
          that the decedent assaulted her during the fight.
          Shortly thereafter, [appellant], armed with a black
          revolver, arrived on foot. He was accompanied by a
          male identified as “Spaz,” who rode in on a bicycle.
          [Appellant] showed Mack the revolver and travelled
          with the group back to 1931 North Croskey Street.



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          Approximately twenty minutes after the fight
          between Travers and Jazzmen McMillian occurred,
          the decedent, Michael McMillian, and Flippen
          responded to their doorbell and discovered the
          Travers group, with [appellant] in front of their
          home.        There,   Mack    attempted    to  goad
          Jazzmen McMillian, who was upstairs with her
          children, into returning outside to fight. During a
          discussion between Mack and the McMillians,
          [appellant] asked Flippen, “Damn, you going to let
          your man put his hands on my baby mom?”

          During the confrontation, Jazzmen McMillian stuck
          her head out of the upstairs window and began to
          argue with Mack. A fight then erupts between the
          two groups, with Mack and Tolbert throwing punches
          at the decedent and his brother, and Mack spraying
          both groups with Mace.      In the ensuing chaos,
          [appellant] approached the decedent and shot him in
          the chest and abdomen.

          The decedent clutched his chest and ran upstairs to
          the second floor living space, leaving a blood
          trial [sic]. After he collapsed on the second floor,
          Jazzmen McMillian flagged down Housing Authority
          Police Officers Kyle Barrie and Terrance Matthews,
          who transported the decedent to Temple University
          Hospital where he was pronounced dead on
          August 8, 2017 at 2:03 a.m.

          Deputy Chief Medical Examiner Dr. Albert Chu, an
          expert in forensic pathology, examined the
          decedent’s autopsy report and concluded that the
          cause and manner of death was homicide by multiple
          gunshot wounds. The decedent suffered a fatal,
          perforating gunshot wound to his right chest that
          passed through his right lung and exited the right
          side of the upper back. A second projectile entered
          the right side of the decedent’s central abdomen,
          travelled through soft tissue, and was recovered
          from the right hip. The entrance wounds exhibited
          evidence of stippling, indicating that the barrel of the
          shooter’s gun was between two and two and one-half
          feet away from the decedent when he shot him.


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             After the shooting, [appellant] handed the pistol to
             Travers, who returned to the Dennis sisters’ home at
             2311 Norris Street and threw the weapon on a
             couch. Yasmene Johnson retrieved the gun from the
             couch and left the house. The weapon was never
             recovered.

             On August 17, 2015, United States Marshals,
             working in conjunction with the Philadelphia Police
             Fugitive   Squad,     apprehended    [appellant]  at
             2400 Glenwood Street in Philadelphia. During his
             arrest, [appellant] attempted to escape via the back
             door.

             In August and September 2015, Michael McMillian,
             Tolbert, Johnson, and Mack gave statements to
             Philadelphia   Police    Detectives    that identified
             [appellant] as the shooter.           In April 2016,
             approximately eight months after [appellant’s]
             arrest, Travers gave a statement wherein she
             identified [appellant] as the shooter.

Trial court opinion, 10/24/17 at 2-5 (citations to record omitted).

        Following   the   conviction   and   sentencing,   appellant   filed    a

post-sentence motion. On May 12, 2017, the trial court denied the motion.

Appellant did not file an appeal.       On July 31, 2017, appellant sought

reinstatement of his appellate rights nunc pro tunc through a Post

Conviction Relief Act2 (“PCRA”) petition. On August 7, 2017, the PCRA court

granted the petition and reinstated appellant’s appellate rights.              On

August 29, 2017, appellant filed a notice of appeal. On September 6, 2017,

the trial court ordered appellant to file a concise statement of errors




2   42 Pa.C.S.A. §§ 9541-9546.


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complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On September 27,

2017, appellant complied with the order.       On October 24, 2017, the trial

court filed an opinion, pursuant to Pa.R.A.P. 1925(a).

      On appeal, appellant raises the following issues for this court’s review:

            I.     Is [appellant] entitled to a new            trial
                   whereas [sic] here, the verdict is           not
                   supported by the weight of the evidence?

            II.    Is [appellant] entitled to a new trial where, as
                   here, the [t]rial [c]ourt erred when it
                   instructed the jury in such a fashion that same
                   was a directed verdict?

Appellant’s brief at 3.

      Initially, appellant contends that the verdict was against the weight of

the evidence.     A review of the argument section of his brief reveals that

appellant is not raising a weight claim but rather the sufficiency of the

evidence to sustain the verdict.    We find this issue waived as the issue is

completely undeveloped in the brief.          The argument consists of one

half-page, cites three cases, but never addresses any of the evidence.

      Appellant next contends that he must be awarded a new trial because

the trial court erred when it instructed the jury.

      This court has adopted the following standard of review with respect to

assessing jury instructions on appeal:

            A trial court has discretion in instructing the jury,
            and “can choose its own wording so long as the law
            is clearly, adequately, and accurately presented to
            the jury for its consideration. Only where there is an
            abuse of discretion or an inaccurate statement of the


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            law is there reversible error.” Commonwealth v.
            Hawkins, 549 Pa. 352, 701 A.2d 492, 511 (1997)
            (citations omitted). Furthermore:

                   a trial court need not accept counsel’s
                   wording for an instruction, as long as the
                   instruction given 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
                   conveys 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. Rainey, 593 Pa. 67, 928 A.2d
            215, 242-43 (2007) (citations omitted).

Commonwealth v. Vucich, 194 A.3d 1103, 1111 (Pa.Super. 2018),

appeal denied, 199 A.3d 885 (Pa. 2018).

      Appellant argues that the trial court issued a binding instruction that

limited the jury’s ability to render a verdict of its own choosing.   In the

instruction in question, the trial court stated:

            In order to convict the defendant of first-degree
            murder, there are three specific elements that the
            Commonwealth must prove beyond a reasonable
            doubt. First, that Moses McMillian is dead; second,
            that the defendant killed him, or the accomplice;
            and, third, that the defendant did so with the specific
            intent to kill and with malice.

            So the defendant has the specific intent to kill if he
            has fully formed the intent to kill and is conscious of
            his own intention. As my earlier definition of malice
            indicates, a killing by a person who has the specific
            intent to kill is a killing with malice.         Stated


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           differently, a killing is with specific intent if it is
           willful, deliberate and premeditated. The specific
           intent to kill including the premeditation needed for
           first-degree murder does not require planning or
           previous thought for any particular length of time. It
           can occur quickly. All that is necessary is that there
           be time enough so the defendant can and does fully
           form an intent to kill and is conscious of that
           intention.

           When deciding whether the defendant had the
           specific intent to kill, you should consider all the
           evidence regarding his words and conduct in the
           attending circumstances that may show his state of
           mind. If you believe that the defendant intentionally
           used a deadly weapon on a vital part of the victim’s
           body, you may regard that as an item of
           circumstantial evidence from which you may, if you
           choose, infer that the defendant had the specific
           intent to kill.

           If you find that the defendant -- if you find that the
           Commonwealth has proven all of the elements
           beyond a reasonable doubt, you must find the
           defendant guilty.

           If you find that the Commonwealth has proven all of
           element -- has not proven all of the elements beyond
           a reasonable doubt, you must find the defendant not
           guilty.

Notes of testimony, 4/26/17 at 150-151.

     The trial court then gave a similar instruction with regard to

third-degree murder.

     Appellant argues that the trial court instructed the jury to consider first

the charge of first-degree murder before considering other possible verdicts

and that the jury must find appellant guilty of first-degree murder if the

elements were proven. He argues that this instruction as to the order of the


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instructions precluded the consideration of a lesser charge and that the use

of the word “must” forced the jury to find him guilty of first-degree murder.

      However, a review of the instructions does not support appellant’s

assertions.    First, the trial court later instructed the jury that it could

consider first-degree murder and then third-degree murder, but was not

required to do so. Specifically, the trial court stated, “Remember, if you go

this way, if you conduct your deliberations in this way, you have to find each

element of the charge beyond a reasonable doubt. So you can proceed in

that way. You don’t have to proceed in this way.” Id. at 155.

      With respect to the use of the word “must,” the trial court explained its

decision:

              [Appellant] fails to establish that this court abused
              its discretion or gave the jury an erroneous
              statement of law.      The above charge accurately
              states each element of the charge, including the
              jury’s discretion in considering circumstantial
              evidence and its obligation to acquit [appellant] if
              the Commonwealth fails to prove all the elements of
              the crime beyond a reasonable doubt. This [c]ourt,
              throughout the entirety of its charge, repeatedly
              informed the jury that the Commonwealth carried
              the burden of proving each element of the crimes
              charged beyond a reasonable doubt.           Although
              [appellant] suggests that a softening of language
              with regard to the jury’s suggested actions if the
              Commonwealth meets its burden is appropriate, the
              language employed by the [c]ourt is an accurate
              statement of the law.[Footnote 3] This [c]ourt’s use
              of the word “must,” as opposed to “should,” was well
              within its discretion.

                   [Footnote 3] After trial counsel objected
                   to this [c]ourt’s use of the word “must,”


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                  this [c]ourt removed the reference from
                  the elements sheets for First and
                  Third-Degree Murder that were sent back
                  to the jury room.

Trial court opinion, 10/24/17 at 6-7 (additional footnote omitted).

      This court agrees with the trial court that the trial court did not abuse

its discretion when it issued the jury instruction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/22/19




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