J-S62008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                        v.

ISIAH JOSHUA SMITH,

                             Appellant                      No. 1982 WDA 2014


              Appeal from the Judgment of Sentence July 2, 2014
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0011065-2013


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

MEMORANDUM BY PLATT, J.:                              FILED NOVEMBER 30, 2015

        Appellant, Isiah Joshua Smith, appeals from the judgment of sentence

imposed     following    his   bench     conviction   of   one   count   of   voluntary

manslaughter.1 We affirm.

        This case arises from the shooting death of Zachary Sheridan, which

was captured on videotape surveillance footage.2 The relevant factual and

procedural history is as follows. On August 3, 2013, at approximately 2:30

a.m., Sheridan, and his friends, Nicholas Rotunda and Chad Keller, took a

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2503(b).
2
  Those present at the scene gave conflicting accounts of the incident and
the court found that “none of the participants who testified were particularly
credible.” (Trial Court Opinion, 3/09/15, at 10).
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taxi to a hot dog shop in the Oakland neighborhood of Pittsburgh. The men

were celebrating the birthday of a friend and had been drinking alcohol. At

approximately 3:00 a.m., Rotunda unsuccessfully attempted to hail a cab,

and he began approaching vehicles and asking for a ride home. One female

driver, Rhonda Williams, became upset after Rotunda approached her, went

into the hot dog shop, and returned with three men, including Appellant.

Videotape surveillance footage shows that at 3:25 a.m., a fight between the

two groups ensued. During the altercation, Appellant pushed Rotunda, and

Sheridan punched Appellant and pushed him against a wall.        As Sheridan

was retreating, Appellant pulled out a handgun and shot him in the left back

shoulder region. Sheridan was unarmed.

       On March 31, 2014, Appellant proceeded to a bench trial. During trial,

the defense maintained that Appellant acted in self-defense and that he fired

the gun into the air in an attempt to end the altercation. The court found

Appellant guilty of voluntary manslaughter3 based on its determination that,

although the evidence established that Appellant believed he was in danger

of death or serious bodily injury, his belief was unreasonable in light of the

facts and circumstances of the case. (See N.T. Trial, 4/07/14, at 411). The

court ordered preparation of a pre-sentence investigation (PSI) report. On

July 2, 2014, it sentenced Appellant to a term of not less than sixty nor

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3
  The court found Appellant not guilty of first-degree murder and third-
degree murder.



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more than 180 months’ incarceration.             On July 7, 2014, Appellant filed a

timely post-sentence motion, which was denied by operation of law on

November 7, 2014.          See Pa.R.Crim.P. 720(b)(3)(a).       This timely appeal

followed.4

       Appellant presents the following questions for our review:

       I.    Is the guilty verdict on the charge of voluntary
       manslaughter supported by sufficient evidence when the
       Commonwealth failed to prove that the use of a firearm in self-
       defense or in defense of another was unreasonable under the
       circumstances of this case?

       II.   In the alternative, is the guilty verdict for voluntary
       manslaughter supported by sufficient evidence in that the
       evidence presented established that involuntary manslaughter
       was the only appropriate verdict in this case?

       III. Is the sentence imposed manifestly excessive, unreasonable
       and an abuse of the trial court’s discretion in that the various
       mitigating factors weighing in favor of a lesser sentence
       outweighed the need for retribution ordered because [Appellant]
       brought a gun to a fist fight?

(Appellant’s Brief, at 6) (quotation marks and most capitalization omitted).

       Preliminarily, we observe that Appellant’s first two issues challenge the

sufficiency of the evidence supporting his voluntary manslaughter conviction.

(See id.).

       The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
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4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on February 13, 2015. See
Pa.R.A.P. 1925(b). The trial court entered an opinion on March 9, 2015.
See Pa.R.A.P. 1925(a).



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      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015)

(citations omitted).

      The voluntary manslaughter statute provides, in pertinent part:

            (b) Unreasonable belief killing justifiable.—A person
      who intentionally or knowingly kills an individual commits
      voluntary 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 of this title (relating to general
      principles of justification), but his belief is unreasonable.

18 Pa.C.S.A. § 2503(b).

            In order to procure a conviction for voluntary
      manslaughter the Commonwealth must prove, beyond a
      reasonable doubt, that the homicide was not justified. A killing
      that occurs under the mistaken belief that it was justified
      constitutes voluntary manslaughter. Voluntary manslaughter,
      imperfect self-defense, requires that the Commonwealth
      establish that the defendant “intentionally and knowingly” killed
      another. 18 Pa.C.S. § 2503(b)[.]




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Commonwealth v. Weston, 749 A.2d 458, 462 (Pa. 2000) (case citations

omitted).

     In     his   first   sufficiency   challenge,   Appellant   argues   that   the

Commonwealth failed to prove that his use of his firearm was unreasonable

under the circumstances of this case. (See Appellant’s Brief, at 21-32). He

contends that his belief in the need to defend himself and his friends by

shooting the gun was wholly reasonable and that the killing was justified.

(See id. at 21, 23). We disagree.

          If the defendant properly raises self-defense under Section
     505 of the Pennsylvania Crimes Code, the burden is on the
     Commonwealth to prove beyond a reasonable doubt that the
     defendant’s act was not justifiable self-defense.

                   The Commonwealth sustains this burden if it
             establishes at least one of the following: 1) the
             accused did not reasonably believe that he was in
             danger of death or serious bodily injury; or 2) the
             accused provoked or continued the use of force; or
             3) the accused had a duty to retreat and the retreat
             was possible with complete safety.

           The Commonwealth must establish only one of these three
     elements beyond a reasonable doubt to insulate its case from a
     self-defense challenge to the evidence. The Commonwealth can
     negate a self-defense claim if it proves the defendant did not
     reasonably believe he was in imminent danger of death or great
     bodily injury and it was necessary to use deadly force to save
     himself from that danger.

                   The    requirement    of   reasonable   belief
             encompasses two aspects, one subjective and one
             objective. First, the defendant must have acted out
             of an honest, bona fide belief that he was in
             imminent danger, which involves consideration of the
             defendant’s subjective state of mind. Second, the
             defendant’s belief that he needed to defend himself

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           with deadly force, if it existed, must be reasonable in
           light of the facts as they appeared to the defendant,
           a consideration that involves an objective analysis.

     . . . [T]he use of deadly force itself cannot be viewed in isolation
     with [the victim] as the sole physical aggressor and [the
     defendant] acting in responsive self-defense. [T]his would be an
     incomplete and inaccurate view of the circumstances for self-
     defense purposes. To claim self-defense, the defendant must be
     free from fault in provoking or escalating the altercation that led
     to the offense, before the defendant can be excused from using
     deadly force. Likewise, the Commonwealth can negate a self-
     defense claim by proving the defendant used more force than
     reasonably necessary to protect against death or serious bodily
     injury.

                                  *     *   *

           . . . Although the Commonwealth is required to disprove a
     claim of self-defense arising from any source beyond a
     reasonable doubt, a [fact-finder] is not required to believe the
     testimony of the defendant who raises the claim.

           A number of factors, including whether complainant was
     armed, any actual physical contact, size and strength disparities
     between the parties, prior dealings between the parties,
     threatening or menacing actions on the part of complainant, and
     general circumstances surrounding the incident, are all relevant
     when determining the reasonableness of a defendant’s belief
     that the use of deadly force was necessary to protect against
     death or serious bodily injuries. No single factor is dispositive. .
     ..

           Finally, a trial court, acting as the finder of fact, is
     presumed to know the law, ignore prejudicial statements, and
     disregard inadmissible evidence.

Commonwealth v. Smith, 97 A.3d 782, 787-88 (Pa. Super. 2014)

(citations, quotation marks and emphasis omitted).

     Here, the trial court determined that Appellant’s belief he was in

danger of death or serious bodily injury was not reasonable under the


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circumstances of this case. (See N.T. Trial, 4/07/14, at 411). It explained

that “[t]he video shows [Appellant] rising with the firearm, shows the victim

running away, shows [Appellant] stepping forward and firing.” (Id. at 409).

The court further stated:

      . . . By the time [Appellant] pulled his weapon and fired at the
      victim, he should have known that neither he nor anyone else
      was in danger of death or serious bodily injury. It was simply
      not reasonable to believe that, at the moment he fired,
      [Appellant] or anyone else was in danger of death or serious
      bodily injury. There was no weapon. The victim and his friends
      were moving away from [Appellant]. Those facts, established in
      the video, negated [Appellant’s] claim that his belief was
      objectively reasonable.

(Trial Ct. Op., at 11).

      After review of the record, and viewing the evidence in the light most

favorable to the Commonwealth, see Giordano, supra at 1002, we

conclude that Appellant’s first challenge to the sufficiency of the evidence

lacks merit.    The record supports the trial court’s conclusion that the

Commonwealth        negated   Appellant’s   claim   of   self-defense    where   the

videotape surveillance footage shows that the unarmed victim was retreating

at the time Appellant fatally shot him.          See Smith, supra at 787-88.

Accordingly, Appellant’s first issue does not merit relief.

      In his second sufficiency challenge, Appellant argues in the alternative

that the voluntary manslaughter verdict is inappropriate because the

evidence    “more     properly   should     be   deemed     to   be     involuntary




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manslaughter[.]” (Appellant’s Brief, at 33) (emphasis original).5 He asserts

that an involuntary manslaughter conviction is more appropriate because his

act of firing a shot into the air during an altercation involving inebriated

people on a public street could be deemed reckless or grossly negligent.

(See id. at 34, 36, 38). This issue does not merit relief.

       As     discussed    above,     Appellant            was    convicted   of     voluntary

manslaughter, which “is a form of homicide that involves the specific intent

to kill[.]”    Commonwealth v. Buterbaugh, 91 A.3d 1247, 1260 (Pa.

Super. 2014) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014) (citation

omitted); see also 18 Pa.C.S.A. § 2503(b) (requiring Commonwealth to

establish that defendant “intentionally or knowingly” killed another). “It is

well-settled    that   specific   intent       to   kill    can   be   established    through

circumstantial evidence such as the use of a deadly weapon on a vital part of

the victim’s body.”        Commonwealth v. Diamond, 83 A.3d 119, 126

(2013), cert. denied sub nom. Diamond v. Pennsylvania, 135 S. Ct. 145

(2014) (citation omitted).

       Instantly, the trial court determined “that [Appellant’s] actions here

were more than gross negligence or recklessness but more of a conscious


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5
  “A person is guilty of involuntary manslaughter when as a direct result of
the doing of an unlawful act in a reckless or grossly negligent manner, or the
doing of a lawful act in a reckless or grossly negligent manner, he causes the
death of another person.” 18 Pa.C.S.A. § 2504(a).




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act, the kind of conscious act which raises the level from involuntary

manslaughter up.”    (N.T. Trial, 4/07/14, at 407).    The court did not find

Appellant’s testimony that he fired the gun into the air and unintentionally

shot Sheridan credible where “[t]he video shows [Appellant] rising with the

firearm, shows the victim running away, shows [Appellant] stepping forward

and firing.” (Id. at 409; see also N.T. Trial, 4/02/14, at 339-40, 356, 358-

59, 367). The court, as finder of fact, was “free to believe all, part or none

of the evidence” and this Court will not disturb its credibility determinations.

Giordano, supra at 1003. Our review of the record reveals that there was

sufficient evidence to conclude that Appellant intended the shooting to have

fatal results when he shot Sheridan in the back shoulder region, a vital part

of his body.   (See N.T. Trial, 4/02/14, at 259-60); see also Diamond,

supra at 126. Accordingly, Appellant’s second issue does not merit relief.

      In his third issue, Appellant argues that the sentence is excessive

because the court failed to consider mitigating factors in formulating it.

(See Appellant’s Brief, at 43).     He contends that the court ignored his

rehabilitative needs, and made no mention of his good educational

background, his character, or the fact that he was employed and helping to

support his family. (See id. at 46-48).

      At the outset, we observe that Appellant’s issue challenges the

discretionary aspects of his sentence. However, “[t]he right to appeal the

discretionary aspects of a sentence is not absolute.”     Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) (citation omitted).

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             Before we reach the merits of this [issue], we must engage
      in a four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant’s brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence [, see Pa.R.A.P. 2119(f)]; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code. . . .
      [I]f the appeal satisfies each of these four requirements, we will
      then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).

      In the instant case, Appellant timely appealed, preserved his claim in

the trial court, and included a Rule 2119(f) statement in his brief. See id.

With respect to the substantial question requirement:

            The determination of what constitutes a substantial
      question must be evaluated on a case-by-case basis.         A
      substantial question exits only when the appellant advances a
      colorable argument that the sentencing judge’s actions were
      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).

“[T]his Court has held that an excessive sentence claim—in conjunction with

an assertion that the court failed to consider mitigating factors—raises a

substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citations omitted).

Therefore, we will review Appellant’s claim on the merits.

      Our standard of review in sentencing matters is well settled:

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            Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to have abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).

      In fashioning a defendant’s sentence, the court must “follow the

general principle that the sentence imposed should call for confinement that

is consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).

      . . . [W]here the sentencing judge had the benefit of a
      presentence investigation report, it will be presumed that he or
      she was aware of the relevant information regarding the
      defendant’s character and weighed those considerations along
      with mitigating statutory factors. Additionally, the sentencing
      court must state its reasons for the sentence on the record. The
      sentencing judge can satisfy the requirement that reasons for
      imposing sentence be placed on the record by indicating that he
      or she has been informed by the pre-sentencing report; thus
      properly considering and weighing all relevant factors.

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009),

appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted).

      Here, at the sentencing hearing, several defense witnesses testified

regarding   Appellant’s   good    character,   educational   background,     and

involvement in the community. (See N.T. Sentencing, 7/02/14, at 13-23).

Appellant apologized to the victim’s family and to his own family for the pain


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and suffering he caused.      (See id. at 59).    Defense counsel discussed

various mitigating factors including Appellant’s long employment history, his

lack of prior criminal history, and his academic record as an honors scholar.

(See id. at 55-56). Counsel acknowledged that “[the court] is very familiar

with the facts sitting as the fact finder” and noted “that [it] certainly knows

better than I the purposes of sentencing[.]” (Id. at 52, 56). The court also

heard from several of the victim’s family members and friends, who

described the painful impact his death has had on their lives. (See id. at

23-51). Before imposing sentence, the court noted that it had considered all

of the information before it including the PSI report, ninety victim impact

statements submitted by the Commonwealth, and the sentencing guidelines.

(See id. at 13, 23, 61-62).

      Thus, the record reflects that the court was well aware of the facts of

this case and mitigating factors, and that it took into account extensive

information regarding Appellant’s background in formulating its sentence.

Further, because the court had the benefit of a PSI report, we “presume[]

that [it] was aware of the relevant information regarding [Appellant’s]

character and weighed those considerations along with mitigating statutory

factors.” Ventura, supra at 1135. Accordingly, we conclude that the trial

court did not abuse its discretion in imposing Appellant’s sentence.      See

Clarke, supra at 1287. Appellant’s third issue lacks merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2015




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