J.S52009/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
TROY THORNTON,                              :
                                            :
                            Appellant       :     No. 792 EDA 2013


            Appeal from the Judgment of Sentence February 15, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0010214-2011

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 11, 2015

        Appellant, Troy Thornton, appeals from the judgment of sentence of

life imprisonment imposed in the Philadelphia County Court of Common

Pleas after a jury found him guilty of, inter alia, first-degree murder.1

Appellant’s counsel has petitioned to withdraw from representation and filed

an Anders2 brief identifying the following issues: (1) the weight of the

evidence; (2) the court’s failure to instruct the jury on self-defense; (3) the



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
  See Anders v. California, 386 U.S. 738 (1967);                     see   also
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
J. S52009/14


sufficiency of the evidence; and (4) the court’s admission of consciousness

of guilt evidence.3 We affirm and grant counsel’s petition to withdraw.

        Appellant’s conviction arises from the January 12, 2011 shooting of

Charles Johnson (“Decedent”) near the intersection of Musgrave Street and

Washington Lane in Philadelphia.        The Commonwealth established the

following    background    to   the   shooting,   before   Appellant’s   alleged

involvement.     Decedent’s sister, Charlyne Johnson, was pregnant with the

child of Dante Williams. Dante was also involved with another female, “Kia.”

Kia’s other suitor, “Jarrell,” allegedly harassed and threatened Dante. Sean

Jenkins, the boyfriend of Dante’s mother, Selina Williams, intervened and

assaulted Jarrell. According to Jenkins and Selina, they and Dante continued

receiving threats after the attack on Jarrell and feared retaliation.

        Charlyne Johnson learned of Dante Williams’ relationship with Kia and

discussed the matter with Decedent. They considered assaulting Dante, but

according to Charlyne, she told Decedent she wanted to talk with Dante first.

        On January 12, 2011, Decedent and Charlyne drove to a gathering at

the Williamses’ home on the 500 block of Washington Avenue.4 On the way,


3
    We have reordered the issues discussed in the Anders brief.
4
   Selina Williams testified that Dante Williams, Charlyne Johnson, Dante’s
friend, “Garlino,” a female friend, “Mikey,” and a male friend, “Triz,” were at
her house on the night of the shooting. We note that Mikeal Coles also
referred to Appellant as “Triz.” However, the record established that the
individual referred to by Selina Williams as Triz was not Appellant. All
references herein to Triz do not refer to Appellant.



                                      -2-
J. S52009/14


they picked up three individuals—Anton Johnson, their cousin, Dion Garner,

a friend, and Donte Johnson, their older brother.          Decedent dropped off

Charlyne at the Williamses’ residence and drove to another location where

he allegedly dropped off his older brother.

       At approximately 10:22 p.m., Decedent, along with Anton Johnson and

Dion   Garner,   returned   to   the   intersection   of   Musgrave   Street   and

Washington Lane and parked the car on Musgrave Street. There was a steak

knife in the car and duct-tape in the glove compartment. Footage from a

surveillance camera for the next fifteen minutes showed the car moving

between two parking spots on the southern side of Musgrave Street, then

parking on the northern side of Musgrave Street, just beyond the frame of

the camera. On two occasions, an individual exited the car, meandered in

the area, and returned to the car.5

       The car and its occupants raised suspicion among the occupants of the

Williamses’ residence.   Sean Jenkins called Mikeal Coles and asked him to

come to the residence, because “something was going to go down.” N.T.,

2/6/13, at 29.   Coles arrived with two males, later identified as Appellant

and Codefendant, Sean Jones.       Charlyne Johnson attempted to leave the


5
  Although there was surveillance footage of the scene, the shooting
occurred out of the camera’s frame. Moreover, the quality of the video did
not permit the viewer to discern identifying features of the individuals
depicted beyond light or dark clothing. Lastly, the time stamp on the video
was slow by almost eleven hours and forty-seven minutes. N.T., 2/13/13, at
48-49.



                                       -3-
J. S52009/14


residence with Dante Williams.       Selina Williams stopped her son and

arranged for another individual, “Triz,” to escort Charlyne. Charlyne and Triz

left the home, but returned shortly thereafter.      According to Selina, Triz

stated that the individuals by the car were trying to be “stickup boys.” N.T.,

2/7/13, at 75.    Charlyne sent text messages to Decedent warning him to

exit the car or leave the area until midnight. She did not tell the occupants

of the home that her brother was outside.

        The surveillance camera footage of Musgrave Avenue showed two

individuals emerge from the alley that led to the back of the Williamses’

home at 10:36 p.m. One individual approached the car from the sidewalk

and walked out of the camera’s view. The second individual lagged behind,

and then walked into the roadway by the car parked in front of Decedent’s

car. A third individual appeared at the entrance of the alleyway.

        Anton Johnson testified, in relevant part, as follows. He was in the

right rear seat of the four-door car, closest to the curb, with his door halfway

open.    N.T., 2/5/13, at 89.   Decedent was in the driver’s seat, and Dion

Garner was in the left rear seat, behind the driver. Id. at 83, 87. Anton

was preparing to smoke marijuana by removing the tobacco from a cigar.

Id. at 89. A male approached and stopped next to the car on the right-hand

side. Id. at 90. The male asked, “Who are you . . . Who y’all?” Id. at 91.

Anton replied, “Who you?” Id. Anton stated the male stepped backwards




                                     -4-
J. S52009/14


and began shooting. Id. Anton identified Appellant in court as the shooter.

Id. at 90-91.

      Anton Johnson and Dion Garner escaped unharmed through the rear

driver-side door and fled the scene on foot.     Decedent, who was in the

driver’s seat, suffered gunshot wounds to the lateral aspect of the right side

of his chest, the lateral aspect of the right side of his hip, and the outer

aspect of his right elbow, as well as a graze wound to his right groin.

Decedent escaped from the car and ran, but was mortally wounded. He was

found on the sidewalk along Washington Lane, approximately one-half block

from Musgrave Street.6

      Six .380/9mm automatic casings—one stamped Spear, the other five

stamped Remington—were located near the front right-side fender of car.

Three .380/9mm bullets were recovered from inside the car. Two .380/9mm

bullets were recovered from Decedent’s chest and hip. A .38/.357 revolver

bullet was lodged in the car’s radiator. Four of the .380/9mm bullets were

determined to have been fired from the same gun. The .38/.357 bullet was

fired from a different gun. One bullet, recovered from the driver’s door, was

too deformed to analyze for comparative purposes.


6
   The surveillance camera footage showed three individuals—allegedly
Decedent, Anton Johnson, and Dion Garner—fleeing toward Washington
Lane.       It also showed two individuals—allegedly Appellant and
Codefendant— fleeing along Musgrave Street back toward the alleyway. The
third individual, who had remained at the entrance of the alleyway, allegedly
Mikeal Coles, appeared to retreat into the alley.



                                    -5-
J. S52009/14


      The following day, January 13, 2011, Anton Johnson went to the police

station and provided his first account of the shooting, as well as a general

description of the shooter.   Five days later, on January 18th, Dion Garner

was interviewed and gave a general description of the shooter.

      On January 25, 2011, Sean Jenkins and Selina Williams gave separate

statements to police. Both Jenkins and Selina discussed the ongoing dispute

with Jarrell, and Jenkins admitted he called Mikeal Coles on the night of the

shooting. Jenkins and Selina stated Coles came to the residence with two

individuals.   Coles and the two individuals left the home for up to twenty

minutes before returning to the backdoor.       Jenkins and Selina identified

Appellant and Codefendant from Pennsylvania Department of Transportation

photographs and reported that Appellant and Codefendant described their

participation in the shooting after they returned to the home. On January

31, 2011, six days after Jenkins and Williams identified Appellant, Anton

Johnson identified Appellant from a photographic array.

      Criminal   complaints   charging   Appellant   and   Codefendant   with

conspiracy, murder, and related offenses were filed on March 7, 2011. The

case was assigned to the fugitive squad and wanted posters of Appellant and

Codefendant were circulated and published in the newspaper. Codefendant

surrendered on April 12, 1011. Appellant was arrested on June 29, 2011,

after a routine traffic stop of a vehicle in which he was a passenger.




                                     -6-
J. S52009/14


        The Commonwealth filed a motion to consolidate its cases against

Appellant and Codefendant, which the trial court granted on November 16,

2011. Appellant, who was represented by privately retained counsel, Robert

Patrick Link, Esq. (“trial counsel”), proceeded to a joint jury trial with

Codefendant commencing February 4, 2013.              Appellant presented no

evidence in his case-in-chief and elected not to testify.7    On February 14,

2013, the trial court instructed the jury on first- and third-degree murder,

and the jury retired for deliberations. The following day, February 15th, the

jury found Appellant guilty of first-degree murder, carrying firearms in public

in Philadelphia,8 and possessing an instrument of crime,9 and not guilty of

conspiracy.10

        The trial court sentenced Appellant immediately after the verdict. The

court ordered Appellant to serve a term of life imprisonment for murder and

imposed concurrent sentences of three-and-a-half to seven years and two-

and-a-half to five years for carrying firearms in public in Philadelphia and

possessing an instrument of crime, respectively. Trial counsel orally moved




7
    Codefendant did not testify, but presented character witnesses.
8
    18 Pa.C.S. § 907.
9
    18 Pa.C.S. § 6108.
10
  18 Pa.C.S. § 903(a). The jury found Codefendant guilty of third-degree
murder and not guilty of conspiracy.



                                      -7-
J. S52009/14


to withdraw from representation immediately after the imposition of

sentence. The court denied trial counsel’s motion.

      Trial counsel did not file post-sentence motions, but timely filed a

notice of appeal on March 14, 2013.        Trial counsel filed a petition to

withdraw from representation, and this Court, on April 26, 2013, remanded

the matter for the appointment of new counsel.       Present counsel, James

Anthony Lammendola, Esq., entered his appearance.         On September 19,

2013, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement.

Present counsel timely requested, and was granted, multiple extensions of

time to file a Rule 1925(b) statement. On January 2, 2014, present counsel

filed a statement identifying Appellant’s intended issues, but averring an

appeal would be frivolous and he intended to file an Anders brief in this

Court. See Pa.R.A.P. 1925(c)(4). The trial court submitted a Rule 1925(a)

opinion, but did not consider the issues identified in present counsel’s Rule

1925(c)(4) statement.

      Present counsel’s Anders brief identifies the following issues, which

we have reordered as follows:

         Were the verdicts against the weight of the evidence
         because the testimony given by several of the witnesses
         was contradictory, lacking in verisimilitude, and simply not
         believable?

         The trial court committed an abuse of discretion when it
         denied Appellant’s request that the court give a self-
         defense instruction.




                                    -8-
J. S52009/14


          The evidence was insufficient to support Appellant’s first-
          degree murder conviction because the Commonwealth
          failed to prove that Appellant acted with malice in so far as
          the evidence showed that Appellant acted in self-defense
          after the victims intimated that they had weapons.

          The trial court committed an abuse of discretion by
          permitting the Commonwealth to introduce evidence of
          flight in the absence of evidence showing that Appellant
          was aware that he was wanted by the police or that there
          was a warrant out for his arrest.

Anders Brief at 22, 27, 31, 35.      Appellant has not responded to present

counsel’s Anders brief or petition to withdraw either pro se or with the

assistance of new counsel.       The Commonwealth, despite requesting an

extension of time, did not file an appellee’s brief in this first-degree murder

appeal.

      Preliminarily, we must address whether present counsel has complied

with the procedures for seeking withdrawal on direct appeal.              See

Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010).

          [T]he three requirements that counsel must meet before
          he or she is permitted to withdraw from representation
          [are] as follows:

            First, counsel must petition the court for leave to
            withdraw and state that after making a conscientious
            examination of the record, he has determined that
            the appeal is frivolous; second, he must file a brief
            referring to any issues in the record of arguable
            merit; and third, he must furnish a copy of the brief
            to the defendant and advise him of his right to retain
            new counsel or to himself raise any additional points
            he deems worthy of the Superior Court’s attention.

Id. (citations and footnote omitted).



                                      -9-
J. S52009/14


         [I]n the Anders brief that accompanies court-appointed
         counsel’s petition to withdraw, counsel must: (1) provide a
         summary of the procedural history and facts, with citations
         to the record; (2) refer to anything in the record that
         counsel believes arguably supports the appeal; (3) set
         forth counsel’s conclusion that the appeal is frivolous; and
         (4) state counsel’s reasons for concluding that the appeal
         is frivolous. Counsel should articulate the relevant facts of
         record, controlling case law, and/or statutes on point that
         have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

         [I]n Pennsylvania, when counsel meets his or her
         obligations, “it then becomes the responsibility of the
         reviewing court to make a full examination of the
         proceedings and make an independent judgment to decide
         whether the appeal is in fact wholly frivolous.”[11]

Id. at 355 n.5 (citations omitted).

      Present counsel has complied with the technical requirements for

seeking withdrawal. See Counsel’s Mot. Seeking Permission to Withdraw as

Counsel, 4/7/14, at ¶¶ 3-5. Moreover, his brief contains an extensive review

of the record and meets the content requirement set forth in Santiago.




11
   We have stated that “frivolous is not the same as meritless; an appeal is
frivolous where it lacks any basis in law or fact.” Commonwealth v.
Smith, 700 A.2d 1301, 1305 n.10 (Pa. Super. 1997) (citations and
punctuation omitted); accord Commonwealth v. Wrecks, 931 A.2d 717,
722 (Pa. Super. 2007) (“The heightened protection afforded to Anders
appellants . . . arises because the right to counsel on direct appeal and the
right to the direct appeal itself are constitutional ones.”); Commonwealth
v. Kearns, 896 A.2d 640, 647 (Pa. Super. 2006) (“It may be that counsel
believes that the argument advanced is unlikely to ultimately prevail.
Nevertheless, this does not mean that the appeal is wholly frivolous.”).




                                      - 10 -
J. S52009/14


Therefore, we proceed to conduct an independent review of present

counsel’s assessment that this appeal is wholly frivolous.

      First, present counsel outlines a challenge to the weight of the

evidence.    According to him, Appellant suggests the witnesses’ trial

testimony and prior statements were unworthy of belief because the

witnesses admitted to lying or omitting details in their prior statements,

testified inconsistently with their prior statements, and contradicted each

other’s prior statements and testimony. Anders Brief at 24-25. Appellant

also asserts that Selina Williams and Charlyne Johnson lied to protect Dante

Williams or another person present in the house. Id. at 25. Present counsel

avers that Appellant’s challenge to the weight of the evidence was waived.

Id. at 22-23. We are constrained to agree.

      Pennsylvania Rule of Criminal Procedure 607, in relevant part, states:

            (A) A claim that the verdict was against the weight of
         the evidence shall be raised with the trial judge in a
         motion for a new trial:

               (1) orally, on the record, at any time before
            sentencing;

                 (2) by written motion at any time before sentencing;
            or

                 (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3). The failure to preserve a weight of the evidence

claim in the trial court requires that we find the claim waived on appeal.

Commonwealth v. Griffith, 65 A.3d 932, 938 (Pa. Super. 2013).



                                     - 11 -
J. S52009/14


      As noted above, Appellant was found guilty and sentenced on February

15, 2013.     The transcript of the proceedings shows that Appellant did not

orally move for a new trial. Furthermore, the record contains no indication

that written motions were filed before or after sentencing.      Consequently,

Appellant’s intended arguments regarding the weight of the evidence have

been waived.     See Pa.R.Crim.P. 607(A)(1)-(3); Griffith, 65 A.3d at 938.

Because we cannot consider this issue, we agree with present counsel’s

assessment that this claim is frivolous for the purposes of this appeal.

      Present counsel next identifies a challenge to the trial court’s denial of

Appellant’s request for a self-defense instruction.    By way of background,

trial counsel requested an instruction on justification, and the trial court

ruled as follows:

            As far as justification, you can’t have it both ways. You
         can’t say my client wasn’t present, it was these other guys
         in the house and they are putting it on him; however, if
         you believe he was present, it’s self-defense. They’re
         mutually exclusive theories; therefore, defense, you can’t
         have both.

            If you choose your defense and it’s inconsistent with
         self-defense, you have to live with the defense you choose.
         I will not be giving the self-defense charge.

N.T., 2/13/13, at 110. Present counsel notes Appellant intends to argue that

he was entitled to the requested instruction on self-defense, but avers this

claim is frivolous.   For the reasons that follow, we agree with counsel’s

conclusion.

      When reviewing the trial court’s jury instructions,


                                    - 12 -
J. S52009/14


         we are to determine “whether the trial court committed a
         clear abuse of discretion or an error of law which controlled
         the outcome of the case.” . . .         “[Our] key inquiry is
         whether the instruction on a particular issue adequately,
         accurately and clearly presents the law to the jury, and is
         sufficient to guide the jury in its deliberations.” It is well-
         settled that “the trial court has wide discretion in
         fashioning jury instructions. The trial court is not required
         to give every charge that is requested by the parties and
         its refusal to give a requested charge does not require
         reversal unless the appellant was prejudiced by that
         refusal.”

Commonwealth v. Scott, 73 A.3d 599, 602 (Pa. Super. 2013) (citations

omitted). “Before the issue of self-defense may be submitted to a jury for

consideration, a valid claim of self-defense must be made out as a matter of

law,   and     this   determination      must   be   made     by    the   trial   judge.”

Commonwealth v. Mayfield, 585 A.2d 1069, 1070 (Pa. Super. 1991) (en

banc).

       “To    sustain   a   conviction    for   murder   of   the    first-degree,   the

Commonwealth must prove that: (1) a human being was unlawfully killed;

(2) the person accused is responsible for the killing; and (3) the accused

acted with specific intent to kill.”       Commonwealth v. Rivera, 983 A.2d

1211, 1220 (Pa. 2009) (citations omitted). Murder, generally, requires proof

of malice.     Commonwealth v. Heatherington, 385 A.2d 338, 341 (Pa.

1978); accord Commonwealth v. Sepulveda, 55 A.3d 1108, 1143 (Pa.

2012).       The use of deadly weapon upon a vital part of the body may

establish the intent to kill and malice. Commonwealth v. Briggs, 12 A.3d

291, 306 (Pa. 2011).


                                          - 13 -
J. S52009/14


      A claim of self-defense “tends to negate the malice required for

murder” and the unlawfulness of the killing.        See Sepulveda, 55 A.3d at

1143 (citation omitted); Commonwealth v. Hilbert, 382 A.2d 724, 731

(Pa. 1978). Section 505 of the Crimes Code defines self-defense, in part, as

follows:

              (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.

              (b) Limitations on justifying necessity for use of
           force.—

                                   *     *      *

                (2) The use of deadly force is not justifiable under
             this section unless the actor believes that such force is
             necessary to protect himself against death, serious
             bodily injury, kidnapping or sexual intercourse
             compelled by force or threat; nor is it justifiable if:

                   (i) the actor, with the intent of causing death or
                serious bodily injury, provoked the use of force
                against himself in the same encounter; or

                    (ii) the actor knows that he can avoid the
                necessity of using such force with complete safety by
                retreating, except the actor is not obliged to retreat
                from his dwelling or place of work, unless he was the
                initial aggressor or is assailed in his place of work by
                another person whose place of work the actor knows
                it to be.

18 Pa.C.S. § 505(a), (b)(2)(i)-(ii).

      The Pennsylvania Supreme Court has observed,



                                       - 14 -
J. S52009/14


         When a defendant raises the issue of self-defense, the
         Commonwealth bears the burden to disprove such a
         defense beyond a reasonable doubt. While there is no
         burden on a defendant to prove the claim, before the
         defense is properly at issue at trial, there must be some
         evidence, from whatever source, to justify a finding of self-
         defense. If there is any evidence that will support the
         claim, then the issue is properly before the fact finder.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001) (citations

omitted). Because self-defense negate elements of murder, a defendant has

no burden of proving this affirmative defense.           Commonwealth v.

Mouzon, 53 A.3d 738, 743 (Pa. 2012). Rather, where any evidence gives

rise to a claim that self-defense is “properly joined,” the Commonwealth

must disprove the defense beyond a reasonable doubt. Id.

      “[T]he defense of self-defense necessarily requires that the appellant

admit that the shooting was intentional in order to protect one’s self.”

Commonwealth v. Philistin, 53 A.3d 1, 12 (Pa. 2012) (citation omitted).

Similarly, this Court has held, “[W]here a defendant denies the act of using

deadly force in defense of himself, he has negated one of the elements of

self-defense; therefore, he may not avail himself of an instruction on

justification even though evidence from other sources would be sufficient to

put the claim in issue.”     Mayfield, 585 A.2d at 1075.          Moreover, a

defendant may not provoke or continue “the difficulty” that led to the slaying

and then claim self-defense.     Mouzon, 53 A.3d at 751 (physical fight

leading to alleged need to use force did not occur spontaneously but was

culmination of ongoing confrontation initiated by defendant).


                                    - 15 -
J. S52009/14


      Presently, we agree with the trial court that Appellant’s defense

strategy sought acquittal based on misidentification.     Trial counsel argued

misidentification by the occupants of the car and emphasized that others in

the Williamses’ home, including Dante Williams, could have killed Decedent.

Trial counsel extensively cross-examined the Commonwealth’s witnesses to

suggest bias and motives to fabricate their identification of Appellant.

Furthermore, Appellant did not testify.      In light of this record, there was

some legal and evidentiary support for the trial court’s ruling that Appellant

was not entitled to avail himself of self-defense because he presented a

defense denying his involvement in the shooting. See Philistin, 53 A.3d at

12; Mayfield, 585 A.2d at 1074.

      Although Appellant did not expressly admit shooting at the car, he did

not specifically deny the charge.     Moreover, the Commonwealth’s own

evidence—i.e., the prior statements of Selina Williams and Sean Jenkins—

contained Appellant’s admissions that he shot at the car.        Because self-

defense may be raised from any evidence, we further consider whether

there was a legally sufficient basis to claim self-defense in the record,

assuming, as we must, that Appellant was closest to the car and was the

primary shooter. See Philistin, 53 A.3d at 12.

      Appellant, in claiming self-defense, relies on the statements of Selina

Williams and Sean Jenkins to police. Selina, on January 25, 2011, gave a

statement to police suggesting that Appellant, Codefendant, and Coles left



                                    - 16 -
J. S52009/14


her home and returned after several minutes. When they returned to the

home, Williams stated the following conversation ensued:

           I asked what was going on. They said the boys got
        rough and tough and we had to holler at them.

                                 *     *      *

           I asked them what that mean and they told me that one
        of the boys pulled out a gun. . . .

                                 *     *      *

        [Appellant] said that he asked the boy, What’s up? And
        the guy said, What’s up? Then he said he started clapping.
        He said that they hollered. He hollered back at them.

N.T., 2/7/13, at 48-49.   Selina explained to police that “clapping” meant

shooting. Id. at 91. She also stated, “They didn’t say shooting. They said

hollering. That’s the way they talk.” Id.

     Sean Jenkins, on January 25, 2011, also gave a statement to police.

According to Jenkins:

        So [Coles] came over with two dudes and everything was
        quiet for about like 20 or 30 minutes. And then they were
        going to roll out.

           So they rolled out and like in a couple of minutes they
        came running back in the house. They were banging on
        the back door. So when I let them in, they’re in my living
        room and they’re out of breath and they’re telling me what
        just happened.

        [Codefendant] tells me that they were walking up the back
        driveway . . . and when he got to the end of the driveway,
        he noticed like three or four dudes sitting in a little car.
        And [Appellant] walked up to the car and asked the driver,
        What y’all doing? And then [Appellant] said that the driver
        started getting out of the car, and that’s when


                                     - 17 -
J. S52009/14


        [Codefendant] said that he and          [Appellant]   started
        shooting at the dudes in the car.

        [Codefendant] told me that [Coles] stayed back up in the
        driveway.

N.T., 2/6/13, at 29-30.

     The trial record also established the following circumstances.     Sean

Jenkins was inside the Williamses’ home and saw suspicious activity around

the car near the intersection of Washington Lane and Musgrave Street.

Jenkins believed the individuals were involved in the dispute between Jarrell

and Dante Williams. Jenkins called Mikeal Coles, after which Coles arrived

with two males, Appellant and Codefendant. Coles was aware of Jenkins’s

concern regarding the car. Coles, Appellant, and Codefendant then left the

residence, but returned to the back door of the residence.

     Thus, even accepting the suggestion that the occupants of the car “got

rough,” “hollered,” showed a gun, or started to get out of the car, we

conclude self-defense was not available.    First, there was no basis in the

record supporting a finding that the use of deadly force was immediately

necessary.      Rather, the evidence established Coles, Appellant, and

Codefendant arrived at and stayed inside the Williamses’ home before the

shooting.    See 18 Pa.C.S. § 505(a).       Second, the record established

Appellant, along with Codefendant, provoked the encounter with Decedent

with an intent to cause serious bodily injury when they left the home with

pistols and approached the car, and Appellant confronted the occupants of



                                   - 18 -
J. S52009/14


the car.        See 18 Pa.C.S. § 505(b)(2)(i).      Thus, there was unrebutted

evidence that Appellant and Codefendant were responsible for setting in

motion the sequence of events that led to the confrontation with Decedent

and the encounter that gave rise to his alleged need to use deadly force in

self-defense. See Mouzon, 53 A.3d at 751.

      In sum, Appellant did not admit to the shooting and his defense

questioned the reliability of the evidence identifying him as the shooter. The

totality   of    the   circumstances,   moreover,   established   that   Appellant

interjected himself into a volatile situation, needlessly escalated the

probability of violence, and along with Codefendant, instigated the specific

encounter that gave rise to the alleged need to use deadly force.

Accordingly, we agree with present counsel that Appellant’s request for a

self-defense jury instruction lacked a basis in the governing law and the trial

record.

      Present counsel next identifies Appellant’s intended challenge to the

sufficiency of the evidence.      According to counsel, Appellant believes the

Commonwealth failed to establish malice in light of his assertion of self-

defense. Anders Brief at 27. We agree with present counsel’s assessment

that the trial evidence established malice and rebutted any inference of self-

defense.

      The standard governing our review of a challenge to the sufficiency of

the evidence is well settled.



                                        - 19 -
J. S52009/14


         When reviewing the sufficiency of the evidence, “we view
         the evidence in the light most favorable to the
         Commonwealth as the verdict winner to determine if the
         evidence and all reasonable inferences derived therefrom
         are sufficient to establish all elements of the offense
         beyond a reasonable doubt.” . . . Further, the trier of fact,
         in passing upon the credibility of the witnesses, is “free to
         believe all, part, or none of the evidence.”

Rivera, 983 A.2d at 1220 (citations omitted).          We rely on the legal

principles of first-degree murder and self-defense discussed above and do

not restate them here.

      Instantly, Anton Johnson testified he was in the right rear seat of the

car. Appellant approached the car and asked who they were. N.T., 2/5/13,

at 90-91. Anton replied by asking who Appellant was. Id. at 91. Appellant

stepped back and began shooting. Id. at 91. Anton identified Appellant as

the shooter from a photographic array on January 31, 2011, and again

identified Appellant at trial.   Dion Garner, who was sitting in the left rear

seat of the car sending a text message, testified he heard words being

exchanged between Anton and the person who approached the car, and then

heard shots. N.T., 2/11/13, at 98.

      We further note the window of the right front door of the car was up,

but shattered. There was a bullet hole in the lower right windshield. Bullets

struck the driver’s seat and the inside of the driver’s side door. Decedent,

who was in the driver’s seat, was struck on his right side in his chest, elbow,

hip, and groin.   Shell casings from a .380/9mm pistol were found on the




                                      - 20 -
J. S52009/14


sidewalk near the right front fender of the car.          No ballistics evidence

suggested that a gun was fired from inside the car.

         Thus, a reading of the record in a light most favorable to the

Commonwealth confirms the jury had a proper basis to find Appellant

approached the car and began shooting. The evidence also established the

use of a deadly weapon on a vital portion of Decedent’s body such that the

jury was entitled to find Appellant possessed a specific intent to kill and that

the killing was unlawful and malicious.         See Briggs, 12 A.3d at 306-07.

Lastly, the evidence suggested Appellant began shooting after a brief

exchange of words and no evidence supported the occupants of the car shot

first.    Accordingly, there was sufficient evidence to establish malice and

rebut the suggested claim that Appellant acted in self-defense. See Rivera,

983 A.2d at 1221-22.          Therefore, we agree with present counsel that

Appellant’s intended sufficiency argument lacked a proper basis in light of

our standard of review.

         The final issue discussed by present counsel is the admission at trial of

evidence that Appellant could not be located by the fugitive squad and was

not arrested until June 29, 2011, more than three months after the criminal

complaint was filed.      According to present counsel, Appellant believes this

evidence was improper because the Commonwealth did not establish that he

was aware he had been charged with murder. The record belies Appellant’s

intended argument.



                                       - 21 -
J. S52009/14


      It is well settled “that the admission of evidence is reserved to the

sound discretion of the trial court.    Our standard of review is whether the

trial court abused its discretion in admitting the challenged evidence.”

Commonwealth v. Lukowich, 875 A.2d 1169 (Pa. Super. 2005) (citations

omitted). Evidence of flight may be construed as evidence of guilt where “a

person has reason to know he is wanted in connection with a crime, and

proceeds to flee or conceal himself from law enforcement authorities.”

Commonwealth v. Tha, 64 A.3d 704, 714 (Pa. Super. 2013) (citation

omitted).

      Instantly, trial counsel objected to the evidence regarding the fugitive

squad’s efforts to locate Appellant because, inter alia, there was no evidence

establishing he “should have constructive or actual knowledge of the

existence of the warrant.”   N.T., 2/7/13, at 6.       However, the trial record

reveals that Appellant was a passenger in a vehicle involved in a traffic stop

on June 29, 2011. N.T., 2/13/13, at 122-124. The arresting officer testified

he asked for Appellant’s name, and Appellant gave the alias “Tyree Young.”

Id. at 124. The officer searched that name in the NCIC/PCIC databases and

learned that it was an alias for Appellant and that Appellant had an open

warrant for homicide. Id. The officer confirmed the warrant was valid and

took Appellant into custody. Id. at 124-25. The officer testified he informed

Appellant he was being taken to “Homicide,” and Appellant “stated that he

knew what the warrant was for.”          Id. at 125.    Accordingly, Appellant’s



                                       - 22 -
J. S52009/14


contention that there was no evidence establishing his knowledge of the

warrant lacks a factual basis.

      We are mindful, however, that present counsel did not address a

related issue apparent on the face of the record. Specifically, the following

exchange occurred prior to the resumption of trial on February 7, 2013:

         [Trial counsel:] Yesterday I was provided by counsel [for
         the Commonwealth] a statement from a police officer who
         was involved in the arrest of my client. Prior to yesterday,
         my impression throughout from the other paperwork,
         activity sheets, was that my client was arrested without
         incident sometime in June. The statement—the discovery I
         got yesterday indicates that there was a car stop. My
         client was asked for his I.D. He gave a fake name and
         then he also made a statement that he knew that he had a
         warrant out for him, which are, obviously, things that I
         would anticipate the Commonwealth introducing to show
         consciousness of guilt.

            I feel that I’m prejudiced at this point if this is to come
         in. We opened. I was not able to address this in my
         opening, which I certainly would have done had I been
         aware of it, to have it introduced at this late stage of the
         game, I think is certainly prejudicial to my client.

                                  *     *      *

            [Commonwealth]: I didn’t address it in my opening
         either. The time to address it is in the closing. It doesn’t
         indicate there was a warrant issued or he said he knew
         what the warrant was for.         I would—this would be
         characterized with incident or without incident. It was a
         car stop, basically, based upon a vehicle going down—
         [Appellant] was a passenger who identified himself as
         Tyreese Young. The vehicle was going down the wrong
         way. The radio checked the alias for the defendant and
         confirmed he had a warrant on him.

           There is no prejudice here simply because no one
         opened on this, nobody had any information.


                                      - 23 -
J. S52009/14



          THE COURT: Backup about prejudice.

          There are discovery rules; you agree with that right?

          [Commonwealth]: Absolutely. It was an oversight. It
       wasn’t in the right folder, I didn’t find this until the night
       before yesterday when I was going through the folder
       looking for the phone information. That’s the first time I
       found it. I subpoenaed the officers simply because I knew
       they were the arresting officers.

          The circumstances, though, unfortunately, were not
       logged in tremendous detail on the Fugitive Squad activity
       sheets.

          THE COURT: When was he arrested compared to when
       the homicide happened?

           [Commonwealth]: Arrested June 29, 2011. The warrant
       is issued March 7, 2011.

          THE COURT: Did the Fugitive Squad have the warrants?

          [Commonwealth]: Absolutely. Did they go out to the
       house?   Many times.  All the activity sheets that is
       documenting efforts —

          THE COURT: They’re going—so you intend to show
       consciousness of guilt anyway?

       [Commonwealth]: Absolutely.

          THE COURT: So what is the prejudice? He knows he
       has a warrant. So what they’re going to show that.

           [Trial counsel]: They’re going to testify as to the efforts
       they made to serve the warrant.            But I don't think
       anyone—they ever came in contact with a—over this
       three-month period ever said that my client was actually
       living there or that they knew where he was to show that
       he should have constructive or actual knowledge of the
       existence of the warrant.



                                   - 24 -
J. S52009/14


           [Commonwealth]: Certainly we can argue that.

           THE COURT: We have a couple of days left. If you
        figure out how you want to cross-examine on that, you
        have time. You have notice now. There is flight any way.

           [Commonwealth]: The issue is that this is a statement
        taken from him while he was in custody. There would be a
        motion to suppress issue involved.

                                 *     *      *

          THE COURT: Did anybody ask him[.]          Do you know
        you’re wanted, or did he just say—

           [Commonwealth]: It’s not clear.

           THE COURT: This is not a motion to suppress a
        statement. No. You have notice of flight here. It doesn’t
        really add to anything. You have notice now. You didn’t
        need to open on it, as long as you can close on it. You can
        cross-examine. It’s coming in.

N.T., 2/7/13, at 4-7. We address independently the issues of the discovery

violation and the trial court’s determination of an appropriate remedy. See

Santiago, 978 A.2d at 355 n.5.

     “[D]ecisions involving discovery in criminal cases lie within the

discretion of the trial court. The court’s ruling will not be reversed absent

abuse of that discretion.”   Commonwealth v. Smith, 955 A.2d 391, 394

(Pa. Super. 2008) (en banc) (citations omitted).    “[A] discovery violation

does not automatically warrant relief in the form of a new trial. A defendant

seeking relief from a discovery violation must demonstrate prejudice.      A

violation of discovery does not automatically entitle a defendant to a new




                                     - 25 -
J. S52009/14


trial.”     Commonwealth v. Hood, 872 A.2d 175, 181 (Pa. Super 2005)

(citations, emphasis, and punctuation omitted).

          Instantly, the trial court found Appellant was on notice that the

Commonwealth could admit flight and concealment evidence at trial based

on the fugitive squad activity sheets that were disclosed in pretrial

discovery. Discovery regarding Appellant’s statement to the arresting officer

was belated but provided at trial on February 6, 2013, and the testimony

regarding Appellant’s statements at his arrest was presented almost one

week later on February 13th.           The trial court implicitly accepted the

Commonwealth’s argument that the                belated discovery of Appellant’s

statement to the officer was an oversight and not a deliberate tactic.12

          Trial counsel’s sole claim of prejudice was that he was not able to

present opening arguments regarding Appellant’s statements. Trial counsel

did not formally request suppression of the new evidence. Furthermore, we

discern no basis in the record to conclude that Appellant’s primary defense

strategy of misidentification was affected by the late disclosure of his use of

an alias or his statement that he was aware of the nature of the warrant.

          Following our review, we conclude the record supports the trial court’s

determination that Appellant had notice the Commonwealth could introduce


12
   It is anomalous, however, that the Commonwealth stated that it intended
to present concealment or flight evidence before the belated discovery of the
officer’s report of the traffic stop, but did not outline such evidence in its
opening statement.



                                       - 26 -
J. S52009/14


evidence of consciousness of guilt.      Moreover, we discern no abuse of

discretion in the trial court’s determination that the prejudice associated with

the evidence from the traffic stop was not so severe as to exclude the late

discovered evidence. Trial counsel did not formally seek suppression of the

evidence obtained as a result of the traffic stop and the NCIC/PCIC search,

or assert prejudice beyond his inability to make opening arguments

regarding consciousness of guilt evidence.     Thus, under the totality of the

circumstances, we conclude that the trial court’s ruling on the discovery

violation and choice of remedy did not constitute reversible error.        See

Hood, 872 A.2d at 181.

      Thus, following our independent review, we agree with present

counsel’s assessment that Appellant’s intended issues were frivolous. As we

discern no non-frivolous issues preserved in this appeal, we affirm and grant

counsel’s petition to withdraw from representation.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




                                     - 27 -
