J-A22032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    ULYSSES RODRIGUEZ,

                             Appellant                No. 2163 EDA 2016


            Appeal from the Judgment of Sentence January 15, 2016
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No.: CP-39-CR-0000679-2014


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED OCTOBER 18, 2017

        Appellant, Ulysses Rodriguez, appeals from the judgment of sentence

imposed after his jury conviction of voluntary manslaughter. We affirm.

        We take the following factual and procedural background from the trial

court’s June 16, 2016 opinion and our independent review of the certified

record. At trial in this matter, Michael Frichtman testified that, on January 26,

2013, at approximately midnight, he and the victim were walking home after

purchasing cigarettes at a 7-Eleven on Union Avenue in Bethlehem,

Pennsylvania, when Appellant approached them and asked if they wanted to

buy marijuana.       (See N.T. Trial Vol. II, 8/19/15, at 61).   When the men



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*   Retired Senior Judge assigned to the Superior Court.
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declined and asked for Appellant’s phone number, he aggressively stated,

“[Y]ou’re not taking my fucking number if you ain’t going to buy anything

now.” (Id. at 63; see id. at 64). Appellant then walked away to his SUV

parked nearby, retrieved marijuana and a handgun from the vehicle, and

returned to the men, shoving the bag of drugs in the victim’s face, and asking

him, “How does this smell?” (Id. at 67; see id. at 95).

        In response, the victim removed his jacket and told Appellant he wanted

to fight.   (See id. at 69).    Appellant then pulled the handgun from his

waistband, pointed it at the two men, and argued with the victim about

fighting. (See id. at 72, 74-77). Appellant started walking away ahead of,

but in the same direction as Frichtman and the victim, and kept arguing with

the victim, eventually firing two shots in his general direction. (See id. at

102).    When the victim and Appellant were directly in front of each other

outside the club, Appellant shot the victim twice in the chest, got into his

vehicle, and drove away. (See id. at 78-81). During this entire episode, both

the victim and Frichtman were unarmed, and Frichtman repeatedly suggested

that they should go home. (See id. at 73-74, 77-78, 98-99, 106).

        Witness, Erica Hampton, described the events similarly. She testified

that she heard two men arguing and overheard one of them say, “[s]o you

gonna shoot me, shoot me.” (N.T. Trial Vol. I, 8/18/15, at 58). She stated

that Appellant was backing up as the victim walked toward him. (See id. at

61-62). Appellant then fired “at least three” shots toward the victim. (Id. at


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61). The victim then charged at Appellant and the men “tussled.” (Id. at 64;

see id. at 63). She heard “a couple more shots” and observed Appellant run

away. (Id. at 64; see id. at 65).

      Appellant testified in pertinent part that, after he put the marijuana in

the men’s faces, “[He] was able to retreat back to the club. [He] had an open

path to the club.” (N.T. Trial Vol. III, 8/20/15, at 51). He stated that, after

this preliminary interaction, he took two steps backwards, put his gun away,

and walked toward that establishment. (See id.). Just feet from the door,

instead of entering the building, Appellant shot “warning shots” at the victim

and Frichtman. (Id. at 58, 129). He stated that the victim then ran at him,

bear hugged him, and a skirmish began. (See id. at 64). Appellant testified

that he then intentionally shot the victim. (See id. at 131-32).

      The forensic pathologist testified that the victim was shot twice in the

chest. (See N.T. Trial Vol. II, at 13). The first gunshot wound showed that

the gun was against Appellant’s skin when it was discharged. (See id. at 19,

23). The distance of the firearm when the second shot was fired was between

“[n]ear contact to within several inches[.]” (Id. at 34; see id. at 23). The

wounds were seven inches apart from each other. (See id. at 35).

      On   August   21,   2015,     Appellant   was   convicted    of   voluntary

manslaughter.    On January 15, 2016, with the benefit of a presentence

investigation report (PSI), the trial court sentenced him to not less than ten

nor more than twenty years’ imprisonment, which was outside the aggravated


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range of the sentencing guidelines, but within statutory limits.         The court

denied Appellant’s post-sentence motions for judgment of acquittal and to

modify sentence on June 16, 2016.              On July 8, 2016, Appellant timely

appealed.1

       Appellant raises three issues for this Court’s review:

       1. Whether the trial court erred in failing to conclude that [he] is
       entitled to judgment of acquittal because the [C]ommonwealth’s
       evidence was not sufficient to disprove [Appellant’s] self-defense
       claim beyond a reasonable doubt?

       2. Whether the trial court erred in failing to conclude that the
       maximum possible sentence given by the court was unreasonable
       and excessive given the number of mitigating factors, including
       [Appellant’s] minimal prior record, and the lack of aggravating
       factors?

       3. Whether the trial court erred in failing to conclude that
       [Appellant] is entitled to a new trial by reason of the court’s failure
       to instruct the jury on involuntary manslaughter as a possible
       offense?

(Appellant’s Brief, at 3).

       In his first issue, Appellant argues that the trial court erred in denying

his motion for judgment of acquittal where the Commonwealth’s evidence was

insufficient to disprove his self-defense claim beyond a reasonable doubt.

(See id. at 12-18). This issue lacks merit.

       Our standard of review of a trial court’s denial of a motion for judgment

of acquittal is well-settled:

____________________________________________


1Pursuant to the trial court’s order, Appellant filed a timely concise statement
of errors complained of on appeal on August 9, 2016, and, on September 12,
2016, the trial court filed an opinion. See Pa.R.A.P. 1925.

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            A motion for judgment of acquittal challenges the sufficiency
      of the evidence to sustain a conviction on a particular charge, and
      is granted only in cases in which the Commonwealth has failed to
      carry its burden regarding that charge.

Commonwealth v. Packer, 146 A.3d 1281, 1284, affirmed, 2017 WL

3600581 (Pa. filed Aug. 22, 2017) (citation omitted).

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      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 established 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 a 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 trier of fact while
      passing on the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, part or none of the
      evidence.

Id. at 1285 (citation omitted).

      Pursuant to section 2503(a)(1) of the Crimes Code, “[a] person who kills

an individual without lawful justification commits voluntary manslaughter if at

the time of the killing he is acting under a sudden and intense passion resulting

from serious provocation by . . . the individual killed[.]”     18 Pa.C.S.A. §

2503(a)(1). “In order to procure a conviction for voluntary manslaughter[,]

the Commonwealth must prove, beyond a reasonable doubt, that the homicide


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was not justified. A killing that occurs under the mistaken belief that it was

justified constitutes voluntary manslaughter.” Commonwealth v. Weston,

749 A.2d 458, 462 (Pa. 2000) (citations omitted). Consequently, courts have

commonly referred to unreasonable belief voluntary manslaughter as

“imperfect self-defense,” because the “self-defense claim is imperfect in only

one respect—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).

      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 with deadly force, if it existed, must be reasonable


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            in light of the facts as they appeared to the defendant, a
            consideration that involves an objective analysis.

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

and quotation marks omitted).

      Further,

      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.

Id. at 788 (citations, emphasis, and quotation marks omitted).

      In this case, Appellant’s actions initiated and then escalated the

encounter. He first approached the victim and Frichtman to try to sell them

marijuana, and then, when they declined, he went to his vehicle, not to drive

away, but to retrieve a gun and marijuana to shove in the victim’s face. When

the victim reacted by saying he wanted to fight, Appellant, in spite of his clear

path by which to retreat, escalated the situation even further by shooting

warning shots at the men. When the unarmed victim reacted by bear hugging

him, he put a gun against the man’s chest and pulled the trigger, shooting

him twice, “us[ing] more force than was reasonably necessary to protect

against death or serious bodily injury.”    Id. (citation and quotation marks

omitted).      Viewing this evidence in the light most favorable to the

Commonwealth as verdict winner, we conclude that it sustained its burden of

disproving self-defense and establishing voluntary manslaughter where



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Appellant had an unjustified belief that shooting the unarmed victim in the

chest was necessary to defend himself. See Packer, supra at 1285. The

trial court properly denied Appellant’s motion for judgment of acquittal. See

id. at 1284. Appellant’s first issue lacks merit.

      In his second issue, Appellant challenges the discretionary aspects of

his sentence. (See Appellant’s Brief, at 18-24). Specifically, he maintains

that his sentence is excessive in light of mitigating factors.        (See id.).

Appellant’s issue lacks merit.

            [A] challenge [to the discretionary aspects of a sentence] is
      not automatically reviewable as of right. Before we review such a
      claim on the merits, we 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. . . .

            We decide the substantive merit of the claims only if each
      requirement is satisfied.

Commonwealth v. Tejada, 161 A.3d 313, 320 (Pa. Super. 2017) (citations

omitted).

      In this case, Appellant preserved his issue in a post-sentence motion,

timely appealed, and his brief includes a concise statement of the reasons

relied upon for appeal. (See Appellant’s Post-Sentence Motions, 1/22/16, at

unnumbered pages 3-7; Notice of Appeal, 7/08/16; Appellant’s Brief, at 18-

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19). Also, his issue raises a substantial question. See Commonwealth v.

Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (“[A]n excessive sentence

claim—in conjunction with an assertion that the court failed to consider

mitigating   factors—raises   a   substantial   question.”) (citation   omitted).

Accordingly, we will review the merits of Appellant’s sentencing claim.

      Our standard of review of this matter is well-settled:

             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. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (citation

omitted). “Our Supreme Court has determined that where the trial court is

informed by a [PSI], it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.”         Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (citation omitted).

      Here, the record reflects that the court did not abuse its discretion in

sentencing Appellant. It reviewed letters from members of the community,

and heard testimony from Appellant, his mother, and the victim’s mother.

(See N.T. Sentencing, 1/15/16, at 5, 43-73).          It considered the expert

testimony of forensic psychologist Dr. Frank Dattilio, who conducted an

evaluation of Appellant. (See id. at 6-29). Based on an extensive two-day

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interview, psychological testing, questioning of Appellant’s mother, and a

review of all documentation and reports relative to this case and Appellant’s

history, Dr. Dattilio concluded Appellant is narcissistic, paranoid, impulsive,

and overly defensive. (See id. at 9-10, 13-14). He testified that this explains

“a lot of his difficulty with reading situations and overreacting[,]” and that “he

is prone to misread and misinterpret the actions of others.” (Id. at 16-17).

Dr. Datillio stated that these tendencies could only be overcome after “several

years in intensive treatment[.]” (Id. at 19).

      Additionally, the court put all the reasons for its decision on the record.

(See Trial Court Opinion, 6/16/16, at 1, 8; see also N.T. Sentencing, at 101-

03, 105-06). It explained:

      . . . [T]he reasons for deviating from the sentencing guidelines are
      as set forth in this sheet that the District Attorney has handed to
      me . . . . The impact of the crime [on] the victim and the victim’s
      family . . . . The impact of [the] crime on the community;
      [Appellant’s] lack of insight or remorse; [and] [Appellant’s]
      numerous prison misconducts . . . listed in the back of the PSI. .
      ..

                                   *     *      *

      . . . [Appellant’s] history and penchant for fighting and disorderly
      behavior.     [Appellant’s] future dangerousness, likelihood to
      reoffend and poor prognosis for rehabilitation as evidenced by his
      crime, his lack of insight, his prison misconducts, and his
      psychological evaluation.      [Appellant’s] involvement in drug
      dealing at the time of the crime. . . .

                                   *     *      *

      . . . [P]ossession of an illegal firearm which he used in the crime
      and carried during his drug dealing activities. [Appellant’s] flight



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      and concealment after the crime. . . . Endangerment of others
      during the crime. . . .

                                   *     *      *

      . . . The decision to kill formed over a relatively lengthy time
      horizon and [was] not a split second decision. The victim’s
      family[’s]     recommendation.       The     arresting   officer’s
      recommendation, and the more egregious nature of this crime
      when compared to the typical voluntary manslaughter. . . . I think
      what you are talking about is an excessive force . . . where the
      [victim was] not engaged in illegal activity and otherwise didn’t
      initiate the confrontation. . . .

(N.T. Sentencing, at 101-03, 105-06).

      Based on the foregoing, and the fact that the court possessed a PSI,

and therefore is presumed to have considered all sentencing factors and

mitigating circumstances, we conclude that it properly exercised its discretion

in sentencing Appellant. See Johnson, supra at 826; Downing, supra at

794. Appellant’s second issue does not merit relief.

      In his third claim, Appellant maintains that the trial court erred in failing

to give the involuntary manslaughter jury instruction. (See Appellant’s Brief,

at 24-28). This issue is waived and would lack merit.

            [Our Supreme Court held] that[,] under Criminal Procedural
      Rules 603 and 647(B), the mere submission and subsequent
      denial of proposed points for charge that are inconsistent with or
      omitted from the instructions actually given will not suffice to
      preserve an issue, absent a specific objection or exception to the
      charge or the trial court’s ruling respecting the points.

Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005) (footnote

omitted).




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      Here,   although   Appellant    requested   a   charge    on   involuntary

manslaughter, the trial court declined, stating that it “didn’t see any evidence

which would warrant [such] an instruction . . . .” (N.T. Trial Vol. III, at 158).

Appellant did not object. (See id.). Therefore, this issue is waived. See

Pressley, supra at 225. Moreover, it would not merit relief.

      “[O]ur 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 v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation

omitted). An “[involuntary] manslaughter charge shall be given only when

requested, where the offense has been made an issue in the case, and the

trial evidence reasonably would support such a verdict.” Commonwealth v.

Patton, 936 A.2d 1170, 1177 (Pa. Super. 2007) (citations omitted).            “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 . . . he

causes the death of another person.” 18 Pa.C.S.A. § 2504(a).

      In the case sub judice, there was no evidence to support a claim that

Appellant’s shooting of the unarmed victim was either reckless or grossly

negligent. He initiated and escalated the incident, and then intentionally shot

the unarmed victim in the chest at very close range. Such a shooting rises

above the mere recklessness or accident required to support an involuntary

manslaughter charge and, his mere assertion that he did not intend to kill the


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victim, does not render his actions involuntary manslaughter.             See

Commonwealth v. Briggs, 12 A.3d 291, 307 (Pa. 2011), cert. denied, 565

U.S. 889 (2011) (concluding defendant’s shooting of victims in chest and

abdomen at close range supported first degree murder charge even where

defendant declared he did not intend to kill victims); Commonwealth v.

Murray, 83 A.3d 137, 151 (Pa. 2013) (“[A] specific intent to kill may be

inferred by the use of a deadly weapon upon a vital organ of the body.”)

(citation omitted).

       Based on the foregoing, we conclude that the trial court did not err in

denying Appellant’s request for a jury instruction on the crime of involuntary

manslaughter where “the trial evidence [could not reasonably] support such

a verdict.” Patton, supra at 1177; see Yale, supra at 983.2 Appellant’s

third issue lacks merit.

       Judgment of sentence affirmed.




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2  Moreover, we are not legally persuaded by Appellant’s reliance on
Commonwealth v. McCloskey, 656 A.2d 1369 (Pa. Super. 1995), appeal
denied, 668 A.2d 1126 (Pa. 1995). (See Appellant’s Brief, at 27). In
McCloskey, the defendant recklessly fired the gun up the stairs without
aiming at the victim, who had initiated the confrontation. See McCloskey,
supra at 1374 (defendant testifying that he did not aim gun and that, “for all
I knew, [the] bullet could have gone anywhere.”). Here, Appellant initiated
and escalated the incident, and then intentionally shot the unarmed victim in
the chest, at very close range. Therefore, we do not find McCloskey legally
persuasive.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/17




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