J-S18012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RYAN LYNN HORTON                           :
                                               :
                       Appellant               :   No. 1572 MDA 2019


         Appeal from the Judgment of Sentence Entered June 14, 2019,
               in the Court of Common Pleas of Franklin County,
             Criminal Division at No(s): CP-28-CR-0001174-2016.

BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 10, 2020

        Ryan Lynn Horton appeals from the judgment of sentence imposed

following his conviction of murder of the first degree1 and related offenses.

After careful review, we affirm.

        Horton and his two co-conspirators were involved in a highway robbery

in which the victim, Edward Gilhart, was shot multiple times, causing his

death.     The Commonwealth charged Horton with the umbrella offense of

criminal homicide, along with other related charges.              At trial, the

Commonwealth presented witnesses who testified that Horton masterminded

the robbery and shot Gilhart. After the defense rested, Horton requested that


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A.§ 2502(a).
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the court instruct the jury on third-degree murder.        The Commonwealth

objected on the basis that the evidence presented at trial supported only first

or second-degree murder, and did not rationally support an instruction for

third-degree murder. The trial court took the matter under advisement, but

ultimately denied Horton’s request.

      On June 7, 2019, a jury convicted Horton of murder of the first degree,

robbery, and related conspiracy and firearm offenses. On June 14, 2019, the

trial court sentenced Horton to an aggregate prison term of life plus twenty-

five to fifty years. Horton filed a timely post-sentence motion which the trial

court denied. This timely appeal followed.

      Horton raises one issue for our review: “Whether the trial court erred in

failing to charge the jury on third-degree murder?”         Horton’s Brief at 5

(unnecessary capitalization omitted).

      “Our 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. DeMarco, 809 A.2d 256, 260-61 (Pa. 2002).

            In reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this [C]ourt to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court presents
      to a jury, our scope of review is to determine whether the trial
      court committed a clear abuse of discretion or an error of law
      which controlled the outcome of the case. A jury charge will be
      deemed erroneous only if the charge as a whole is inadequate, not
      clear or has a tendency to mislead or confuse, rather than clarify,
      a material issue. A charge is considered adequate unless the jury

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       was palpably misled by what the trial judge said or there is an
       omission which is tantamount to fundamental error.
       Consequently, 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. Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006)

(quotation marks omitted).

       Defendants are generally entitled to instructions that they have

requested and that are supported by the evidence.          Commonwealth v.

Hairston, 84 A.3d 657, 668 (Pa. 2014). However, “[i]nstructions regarding

matters which are not before the court or which are not supported by the

evidence serve no purpose other than to confuse the jury.” Commonwealth

v. Patton, 936 A.2d 1170, 1176 (Pa. Super. 2007). Thus, “[a] trial court

shall only instruct on an offense where the offense has been made an issue in

the case and where the trial evidence reasonably would support such a

verdict.” Commonwealth v. Browdie, 671 A.2d 668, 673-74 (Pa. 1996).

The reason for this rule is that instructing the jury on legal principles that

cannot rationally be applied to the facts presented at trial may confuse them

and place obstacles in the path of a just verdict. See Hairston, 84 A.3d at

668.

       The Pennsylvania Crimes Code defines third-degree murder as any

killing with malice that is not first or second-degree murder. See 18 Pa.C.S.A.




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§ 2502(c); see also Commonwealth v. Baskerville, 681 A.2d 195, 199-

200 (Pa. Super. 1996).

      Third degree murder occurs when a person commits a killing which
      is neither intentional nor committed during the perpetration of a
      felony, but contains the requisite malice. Malice is not merely ill-
      will but, rather, wickedness of disposition, hardness of heart,
      recklessness of consequences, and a mind regardless of social
      duty. Malice may be inferred from the use of a deadly weapon on
      a vital part of the victim's body. Further, malice may be inferred
      after considering the totality of the circumstances.

Commonwealth v. Truong, 36 A.3d 592, 597-98 (Pa. Super. 2012)

(quotations, quotation marks, citations omitted).

      Horton contends that the trial court erred in denying his request for a

jury instruction on third-degree murder.        According to Horton, “it was

apparent from the evidence at trial that the jury could infer the malice present

for [first-]degree murder or third-degree murder.”        Horton’s Brief at 10.

Horton argues that, because he was accused of shooting the victim at close

range in the head with a firearm, “the malice requirement to convict of first[-

]degree or third[-]degree could be found.”       Id.   Horton claims that “the

testimony presented at trial in this matter is capable of supporting a verdict

of guilty as to murder of the third degree.” Id. at 13. He asserts that “[j]urors

could reasonably conclude that [Horton], while possessed of malice, did not

have the specific intent to kill.” Id. On this basis, Horton maintains that it

was a jury question as to whether he acted with the specific intent to kill or

with an intent to cause serious bodily injury that resulted in the death of the

victim. Id. at 13-14.

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      The trial court considered Horton’s issue and concluded that it lacked

merit. It reasoned as follows:

            [Horton’s] entire defense of the case was that he was
      framed by his co-defendants, i.e., he did not kill the victim and/or
      did not participate in the robbery. There was no evidence before
      the jury upon which they could conclude that [Horton] killed the
      victim, but did not do so with the specific intent to kill or in the
      perpetration of the robbery. The [trial] court ruled that, on the
      evidence presented, the only rational options for the jury were: 1)
      [Horton] killed the victim and was guilty of murder of the first
      degree; 2) [Horton] either did or did not kill the victim but was
      guilty of murder of the second degree for participating in the
      predicate robbery; or 3) [Horton] did not kill the victim and did
      not participate in the robbery, i.e., [Horton] was not guilty of any
      degree of homicide.

                                        ***

             In this case, there was no evidence presented upon which
      the jury could conclude [Horton] committed the killing, but not in
      the course of committing the robbery. Therefore, if the jury found
      [Horton] killed the victim, it was at a minimum murder of the
      second degree. No alternative theory or evidence was presented
      to the jury during the course of the trial. . . . [E]ither [Horton]
      participated in the robbery and was therefore guilty of murder of
      the second degree, or he did not participate in the robbery and
      was therefore not guilty of any degree of homicide. Instructing
      the jury on the elements of murder of the third degree would
      require them to consider a crime upon which no evidence was
      presented. The defense in this case focused exclusively on
      challenging the credibility of the Commonwealth’s witnesses, in
      particular the cooperating co-defendants; their testimony
      implicated [Horton] as the mastermind of the robbery and the
      perpetrator of the resulting murder. It is unclear to the [trial]
      court whether [Horton] was attempting to cast doubt upon
      whether he was the actual shooter, or whether he was involved in
      the robbery at all. For this analysis that distinction is irrelevant;
      either way, if unsuccessful [Horton] was guilty of at least murder
      of the second degree. If successful, [Horton] would not [be] guilty
      of any degree of homicide.

Trial Court Opinion, 8/22/19, at 2, 3, 5 (unnecessary capitalization omitted).

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      We discern no abuse of discretion or error of law by the trial court in

denying Horton’s request for a jury instruction on third-degree murder. In

Commonwealth v. Ort, 581 A.2d 230 (Pa. Super. 1990), this Court

addressed a similar claim in the context of a Post Conviction Relief Act

(“PCRA”) challenge to the effectiveness of trial counsel for not requesting a

jury instruction on third-degree murder. In Ort, the defendant was convicted

of second-degree murder for an arson-related death. Id. at 233. The PCRA

court denied relief on the defendant’s ineffectiveness claim. Id. This Court

found no error, since there was insufficient evidence to support an instruction

for third-degree murder. Id. In doing so, this Court reasoned:

         [The defendant’s] defense in this case was that he did not
         set the fire which caused the homicide. There was no
         evidence of third-degree murder: either [the defendant] set
         the fire, and therefore was guilty of second degree murder,
         or he did not set the fire and was not guilty of any homicide.


Id.

      Here, Horton’s entire theory of his case was that he was being set up by

his two co-defendants and he didn’t participate in the robbery or the killing.

He did not argue, nor did he present evidence at trial, that he shot Gilhart but

only intended to cause serious bodily injury, and not death. See Browdie,

671 A.2d at 673-74 (holding that an instruction is warranted where the offense

was made an issue in the case and where the trial evidence reasonably would

support such a verdict). Thus, the argument Horton now makes on appeal is

not consistent with his defense theory or supported by the evidence he


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presented at trial. See Commonwealth v. Taylor, 876 A.2d 916, 925 (Pa.

2005) (holding that “[i]t is settled that a trial court should not instruct the jury

on legal principles which have no application to the facts presented at trial.

Rather, there must be some relationship between the evidence presented and

the law upon which an instruction is requested.”).

      In sum, the evidence presented at trial supported a finding that either

Horton intentionally killed Gilhart and was guilty of first-degree murder, or he

did or did not shoot Gilhart but participated in the felony offense of robbery

and was therefore guilty of second-degree murder, or he didn’t participate in

the killing or the robbery and was not guilty of any homicide. Ort at 233.

Accordingly, an instruction on third-degree murder was not appropriate, and

the trial court did not err or abuse its discretion in denying Horton’s request.

Consequently, Horton’s issue warrants no relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/10/2020




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