J-S03018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    JOHN GRAZIOLI                         :
                                          :
                    Appellant             :   No. 685 WDA 2019

         Appeal from the Judgment of Sentence Entered April 5, 2019
        In the Court of Common Pleas of Erie County Criminal Division
                     at No(s): CP-25-CR-0001341-2018


BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.:                         FILED MARCH 10, 2020

        John Grazioli (Appellant) appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas, following his jury-trial

convictions of first degree murder1 and related offenses. Appellant argues

the trial court erred in refusing to provide a voluntary intoxication jury

instruction. We affirm.

        Appellant shot his wife, Amanda Grazioli (Wife), in the back of the

head as she slept. On appeal, Appellant claims he was intoxicated when he

placed a loaded handgun to the head of his wife and fired the weapon ending

her life. The trial court summarized the evidence presented by the

Commonwealth at trial as follows:


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2702(a)(1).
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      Exactly one month before the murder, Appellant purchased a
      firearm from a local sports store. [N.T. Trial, 2/5/19, at 153-
      55]. At trial, he claimed that the gun was intended as a birthday
      present for [Wife] due to their concern over violent crime in Erie.
      [N.T. Trial, 2/6/19 afternoon, at 16-17]. He also claimed that
      when he took the gun out of the closet at the time of the
      murder, his purpose in doing so was to give her [the] birthday
      present. [Id. at 31, 33.]

             [Wife’s] birthday, however, was still a month away. [N.T.
      Trial, 2/6/19 morning, at 33-35.2]

Trial Ct. Op., 8/8/19 at 6. Furthermore, Appellant left the gun’s instruction

manual, the original plastic case, the “valuable” holster, and a box of

ammunition at his office. Also, some ammunition remained missing. Id.

      About ten days before the murder, . . . Appellant told his ex-wife
      [Erica Grazioli, (Ex-Wife)] that he was “getting [Wife] out of our
      lives” and begged her to “please, please keep this secret until I
      serve her . . . . ” [N.T., 2/5/19, at 130]. His ex-wife assumed
      he was merely talking about serving divorce papers. No divorce
      papers, however, turned up during police investigations of the
      case. [N.T., 2/6/19 morning, at 41]. Appellant presented no
      evidence or witness to show that he had gone to an attorney to
      have such papers prepared.

Id. at 5.

            Finally, the day before the murder, March 7, 2018,
      Appellant e-mailed his ex-wife and said “I hope to have
      everything resolved by Friday [March 9, 2018].” . . . Instead, by
      the end of the next day, [Wife] was dead.

Id. at 6.

      Appellant made sure his children would not be present at the
      scene, arranging to have them stay with his ex-wife during the

2The cover page of this transcript identifies the proceedings as “Jury Trial -
Day 3 (Morning Session)” and held on “Monday, February 6, 2019.”
However, we note the correct date of the proceedings was Wednesday,
February 6, 2019.

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      period of time when the crime would be committed.                [N.T.,
      2/5/19, at 131-32].

Id. at 5.

      On March 8, 2018, at 2:16 p.m., Appellant called Ex-Wife “and clearly

expressed that he had killed” Wife. Trial Ct. Op. at 8. Appellant also told

Ex-Wife he “had the gun with him and that he was going to kill himself.”

N.T., 2/5/19, at 139.      Ex-Wife asked her co-worker to call the police, and

the Millcreek Township Police responded to Appellant’s home. Id. at 25-26,

141. Responding police officers discovered Wife’s body in her bed, covered

with a blanket.      Id. at 33.   Wife sustained a gunshot to the back of her

head. Id. at 52.

      The trial court recounted:

           Not long after his conversation with [Ex-Wife], Appellant
            surrendered to and was arrested by the police.

           At 4:00 PM, after his arrest, Appellant was brought into the
            Millcreek Police station. An officer with a significant history of
            dealing with drug-impaired individuals testified Appellant
            showed no signs of intoxication when he was brought to the
            station. Appellant showed: (1) no slurred speech, (2) no
            impaired movement, (3) no illness, and (4) no smell of
            alcohol. [N.T., 2/5/19 at 99-103]. And during his interview
            with the police directly following, during which he showed no
            signs of intoxication, Appellant never claimed that killing
            [Wife] was an accident.

Trial Ct. Op. at 8-9.

      With respect to Appellant’s claim he was intoxicated at the time of the

shooting, the trial court highlighted Appellant’s relevant actions after the


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shooting:

         By 6:45 AM, Appellant was sending text messages to his
          children. The texts included clearly expressed sentiments
          such as “Good morning! I love you both with all my heart.”
          [N.T., 2/6/19 morning, at 71].

         The police found [Wife’s] pink cell phone inside Appellant’s car
          after they arrested him. [Id. at 13]. Review of the phone’s
          contents revealed that by 9:00 AM Appellant had begun using
          that phone to text [Wife]’s co-workers and friends to make it
          appear that she was still alive, specifically by sending
          messages saying that she was ill and would miss work, etc.
          [N.T., 2/5/19, at 85-96].

                                      *     *   *

         Appellant was sober enough to leave a note in the room
          where [Wife]’s body was later discovered, saying:

            “I killed [Wife]. Next of kin Denise Katz . . . My
            attorney is John Evanoff. He has my will. Phone
            number 814-490-3156. My ex-wife will need access to
            the house to get our children’s things. Everything goes
            to them. She has keys. Erica Grazioli, 814-881-2141.
            The dogs are harmless. They are in the basement, Ari
            and Chloe. If my kids want them, they can take the
            dogs. Sorry for all of this. John Grazioli. The password
            for my phone (black) is 039280.” [Id. at 39].

Trial Ct. Op. at 7-8.

      Additionally, Appellant placed a box on Ex-Wife’s porch, which

contained a recently-made will and notes to Ex-Wife and their children, “all

clearly and concisely written.”   Trial Ct. Op. at 4, 8.   In the letters to his

children, Appellant “expresse[d] frustration for how badly [Wife] treated”

them. Id. at 4.



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      Appellant even planned for his two dogs to be taken care of.
      After locking them in cages in his basement, he left a note for
      the police stating that “The dogs are harmless. They are in the
      basement . . . If my kids want them, they can take the dogs.”
      [N.T., 2/5/19, at 39].

Id. at 5.

      The case proceeded to a jury trial on February 4, 2019.          Ex-Wife

testified that during her telephone conversation following the shooting, “at

no point [had Appellant] claimed that the killing was a result of any form of

drug impairment or intoxication. She did not testify that he claimed it was

an accident.” Trial Ct. Op. at 8, citing N.T., 2/5/19, at 142.

      Appellant testified on his own behalf to the following. On the evening

of March 7, 2018, he and Wife both consumed alcohol, cocaine, and

marijuana.    N.T., 2/6/19 afternoon, at 23, 25-28.      Appellant additionally

took one Ativan. Id. at 29. Later, he and Wife were in bed, and Wife was

facing away from him because the dog was lying against her. Id. at 33.

Appellant told Wife, “Here’s your present.”     Id.   Wife could not roll over

because of the dog, but she turned her head and said, “Thanks, Babe.” Id.

Appellant showed Wife the gun, and pulled the “slide” on it to show her how

to load the weapon. Id. At trial, Appellant stated he did not know if the gun

had a safety mechanism, but he believed there was a “push button” to

unload the weapon. Appellant testified that as he attempted to unload the

gun, he pressed “a button on the side” with his thumb and squeezed the

trigger causing the weapon to discharge into the back of Wife’s head. Id. at


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34. After shooting Wife, Appellant pulled the covers over her head. Id. at

74. Later that morning, he wrote letters to his children. Id. at 36. Instead

of calling authorities, Appellant went to eat lunch and attend mass, where he

had the opportunity to see his children. Id. at 37. Appellant did not call any

other witnesses and did not present expert testimony. Significantly, he did

not present any evidence that would corroborate his claim of intoxication.

       Finally, we note firearms expert witness, Pennsylvania State Police

Corporal Dale Wimer, testified that Appellant’s “firearm discharged at

approximately 10 pounds of trigger-pull weight,” and it was highly unlikely

“that the firearm could discharge accidently.” N.T. Trial, 2/6/19 morning, at

54.

       Appellant requested the trial court provide a voluntary intoxication jury

instruction.3 The Commonwealth objected and the court denied Appellant’s

request. N.T. Trial, 2/7/19, at 5.4 The jury found Appellant guilty of murder

of the first degree, possession of an instrument of crime, aggravated

assault, recklessly endangering another person, and carrying a firearm

without a license.5   On April 5, 2019, the court sentenced Appellant to an


3  See Pa. SSJI (Crim) 8.308(B) (jury may be instructed voluntary
intoxication is defense to crime of murder in first degree).

4 The cover page of this transcript identifies the proceedings as “Jury Trial
Day 4 of 4” and held on “Thursday, February 6, 2019.” However, we note
the correct date of the proceedings was Thursday, February 7, 2019.

5   18 Pa.C.S. §§ 907(a), 2702(a)(1), 2705, 6106(a)(2).


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aggregate term of life imprisonment without parole. Appellant did not file a

post-trial motion.

      On May 3, 2019, Appellant timely filed a notice of appeal and complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.

      Appellant presents one issue for our review:

      Whether the trial court committed an error of law and/or abuse
      of discretion when it denied [Appellant’s] request to adopt the
      proposed point of charge of Voluntary Intoxication or Drugged
      Condition as a Defense to First Degree Murder, despite evidence
      presented through trial by both parties supporting the provision
      of this charge.

Appellant’s Brief at 4.    Appellant contends the trial court erred when it

denied his request to adopt the proposed jury instruction of voluntary

intoxication or drugged condition as a defense to first-degree murder.6

Appellant cites his trial testimony that in the hours prior to Wife’s death,

they both consumed alcohol and used cocaine and marijuana, while he also

used the prescription drug, Ativan.    Appellant argues the Commonwealth’s

expert witness established that Wife’s toxicology screen revealed the

presence of marijuana, Zoloft, cocaine and alcohol. Id. at 9-10, citing N.T.,

2/5/19, at 56, 60-62, 77. Further, the expert explained how a combination

of these drugs could affect an individual’s neurobiological impulses and

6For a defendant who proves a diminished capacity defense, first-degree
murder is mitigated to third-degree murder. Commonwealth v.
Saranchak, 866 A.2d 292, 299 (Pa. 2005).



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cognitive abilities. Appellant notes he was willing to submit to a blood test,

to prove his intoxication, but officers did not conduct one.        Appellant

believes the blood test “may” have provided exculpatory evidence. Id. at 11.

Thus, Appellant argues, he presented sufficient evidence of his impairment

to warrant a voluntary intoxication jury instruction. We disagree and find no

relief is due.

      The standard of review for a trial court’s decision to refuse a

diminished capacity jury instruction based on voluntary intoxication is an

abuse of discretion. Commonwealth v. Clemons, 200 A.3d 441, 465 (Pa.

2019), cert. denied, 140 S.Ct. 176 (2019).

      As our Supreme Court has explained:

      In examining jury instructions, our scope of review is to
      determine whether the trial court committed a clear abuse of
      discretion or an error of law controlling the outcome of the case.
      A charge will be found adequate unless the issues are not made
      clear, the jury was misled by the instructions, or there was an
      omission from the charge amounting to a fundamental error.

Commonwealth v. Chambers, 980 A.2d 35, 49-50 (Pa. 2009) (quotation

marks and citations omitted).

      In regards to the abuse of discretion standard, we note:

            When a court comes to a conclusion through the exercise
      of its discretion, there is a heavy burden to show that this
      discretion has been abused. It is not sufficient to persuade the
      appellate court that it might have reached a different conclusion,
      it is necessary to show an actual abuse of the discretionary
      power. An abuse of discretion will not be found based on a mere
      error of judgment, but rather exists where the court has reached
      a conclusion which overrides or misapplies the law, or where the
      judgment exercised is manifestly unreasonable, or the result of

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     partiality, prejudice, bias or ill-will. Absent an abuse of that
     discretion, we will not disturb the ruling of the trial court.

Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007) (citations

omitted).

     “A criminal homicide constitutes murder of the first degree when it is

committed by an intentional killing.” 18 Pa.C.S. § 2502(a).     Our Supreme

Court has stated:

     “A defense of diminished capacity negates the element of
     specific intent, and thus mitigates first-degree murder to third-
     degree murder.” Commonwealth v. Padilla, . . . 80 A.3d
     1238, 1263 ([Pa.] 2013) . . . . The fact that the record contains
     some evidence that the defendant consumed an intoxicant will
     not suffice to justify a diminished capacity instruction. [Id.]. A
     defendant is entitled to the instruction only when he “was
     overwhelmed to the point of losing his faculties and sensibilities.”

Clemons, 200 A.3d at 465 (some citations omitted).

     In Padilla, the defendant argued his convictions of first-degree

murder should be vacated because the trial court erred when it instructed

the jury there was no evidence of diminished capacity due to his ingestion of

alcohol and/or drugs.   Padilla, 80 A.3d at 1263.     The Supreme Court of

Pennsylvania, affirmed, reasoning the defendant’s own psychologist expert

witness testified the defendant’s ability to form intent to kill was “likely

impacted,” but he “had not lost control over his behavior.”      Id. at 1266.

The Court further noted that while the trial court instructed the jury “there

was no evidence to support a diminished capacity defense based solely on

drug and alcohol consumption,” the “court’s instructions explicitly allowed


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the jury to consider the testimony regarding voluntary intoxication.” Id. at

1268.

        In Clemons, the defendant challenged the denial of a voluntary

intoxication jury instruction after being convicted of first-degree murder.

Clemons, 200 A.3d at 465.       The defendant claimed that evidence of beer

cans and drugs at the crime scene, and the fact that he was intoxicated

when he turned himself into authorities 24 hours after the murder, was

sufficient for the instruction. Id. at 466. Relying on Padilla, the defendant

further argued that a defendant asserting voluntary intoxication is entitled to

a Padilla-like jury instruction in every circumstance. Clemons, 200 A.3d at

467.    Our Supreme Court noted the instruction provided by the court in

Padilla conformed to the expert testimony and circumstances presented at

that particular trial, and did not constitute reversible error on that record.

Id. The Court clarified that its ruling in Padilla did not create a new general

rule applicable to any defendant who seeks to argue voluntary intoxication.

Id.     The Court then concluded the defendant did not demonstrate the

evidence of record compelled the instruction, particularly because there was

no evidence he was sufficiently intoxicated at the time of the murder. Id. at

465. The Court importantly noted that even if the defendant had consumed

beer, nothing in the record showed he was so intoxicated that he lost control

of his faculties. Id. at 466.




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     A diminished capacity defense based on voluntary intoxication cannot

be asserted by mere evidence of intoxication, but rather requires evidence

that demonstrates the defendant was intoxicated to such an extent he was

unable to form the requisite intent.   Commonwealth v. Spotz, 896 A.2d

1191, 1218 (Pa. 2006).     Moreover, “[a] defense of diminished capacity is

only available to a defendant who admits criminal liability but contests the

degree of guilt.” Commonwealth v. Laird, 726 A.2d 346, 353 (Pa. 1999).

     In the instant matter, the trial court opined:

          At trial, Appellant presented no evidence that he had been
     intoxicated to the point of losing his faculties and sensibilities at
     the time of the murder, as per Clemons. In fact, Appellant
     offered no proof that he had even been intoxicated. The vast
     majority of evidence presented at trial clearly showed that
     Appellant committed the killing as a result of a preconceived
     plan, as opposed to a temporary, drug-induced haze. There was
     insufficient evidence to require this Court to give the jury
     Appellant’s desired jury instruction. . . .

          During trial, Appellant brought forward no expert witnesses
     to testify regarding the mental effects of taking the drugs he
     claimed to have been using on the night in question. He further
     presented no expert testimony regarding what amount of such
     drug use would lead to the kind of impairment he claims to have
     been under, or whether the effects of that level of drug use
     would have been obvious to people interacting with him in the
     hours that followed. The fact that the record contains some
     evidence that Appellant consumed intoxicants will not suffice to
     justify a diminished capacity instruction. [Clemons, 200 A.3d at
     465]. While a number of circumstances make clear that drugs
     were present in [Appellant’s] home on the night of the murder,
     no proof was presented to the Trial Court that Appellant used
     those drugs himself on that night. The only proof of drug use
     was in regards to [Wife], who had drugs in her system at the
     time of her death. [N.T., 2/5/19, at 56]. Even assuming,
     arguendo, that Appellant was using drugs shortly before the
     murder, and that the amounts in his system were similar to

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      those found in the system of [Wife], expert testimony by a
      Commonwealth witness established that the level of
      intoxicants/drugs in [Wife’s] system was merely “therapeutic.”
      [Id. at 56-63.]

Trial Ct. Op. at 3. The court further reasoned:

      As per [Clemons], Appellant has failed to meet the standard
      that “a voluntary intoxication instruction is justified only when
      there is evidence that the defendant was ‘overwhelmed or
      overpowered by alcoholic liquor [or drugs] to the point of losing
      his . . . faculties or sensibilities.’” It was not established that
      Appellant was even using drugs at the time of the murder or
      shortly before. The record contains no evidence Appellant was
      overwhelmed by drugs to the point of losing his faculties. On
      the contrary, his actions and writings after the murder indicate
      highly lucid thought. And Appellant’s actions, leading up to the
      murder, are highly suggestive of a longstanding plot to kill
      [Wife].

             Finally, Appellant at trial made an issue of the fact that the
      police did not test him for drugs when he was arrested. [N.T.,
      2/5/19, at 114]. However . . . Appellant waited twelve to
      sixteen hours before reporting he had killed [Wife]. When he
      finally did turn himself in, he showed no signs of impairment[.]

Id. at 9.

      At trial, Appellant sought to convince the jury that the shooting was

accidental and therefore he should be found not guilty to the murder charge.

Appellant testified, in stark detail, concerning the circumstances of Wife’s

death; he recalled retrieving Wife’s “birthday present” (the gun), his

conversation with Wife, her position on the bed, her reaction to the “gift,”

and the details of how the firearm “accidently” discharged into the back of

Wife’s head. N.T., 2/6/19 afternoon, at 31-34. This testimony and theory of

the case are incompatible with a voluntary intoxication defense, which


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negates the intentional component of a first degree murder conviction.

Appellant’s mere evidence of intoxication does not make out a diminished

capacity defense. See Clemons, 200 A.3d at 465; Spotz, 96 A.2d at 1218.

Crucially missing from Appellant’s trial testimony and his argument on

appeal is evidence of impairment to such a degree that he lost all “faculty

and sensibility” and was completely overwhelmed or overpowered by the

alleged intoxicants.   To the contrary, Appellant’s recalled detail belies any

assertion of lost faculty warranting a voluntary intoxication instruction to

first degree murder. Appellant cannot claim both that he accidently fired the

gun while attempting to unload it and that he was so intoxicated he lost

control of his faculties at the time of the shooting. Thus, where Appellant’s

testimony was presented to a jury as the finder of fact, we can hardly take

issue with the jury’s rejection of his claimed “accidental shooting” defense as

a credibility determination, which this Court will not disturb. See Clemons,

200 A.3d at 463.

       We find no basis to conclude the trial court abused its discretion by

denying Appellant’s request for a voluntary intoxication or diminished

capacity jury instruction. See Clemons, 200 A.3d at 467. The trial court

provided detailed facts supporting its ruling in its well-reasoned opinion.

The record also reflects that police did not drug test Appellant because

during questioning, he showed no signs of intoxication. See N.T., 2/5/19, at

119.


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     Judgment of sentence affirmed.

     Judge Pellegrini joins the memorandum.

     Judge McLaughlin files a concurring memorandum statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2020




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