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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

FRANK BOOKER

                         Appellant                  No. 862 WDA 2014


        Appeal from the Judgment of Sentence November 26, 2013
           In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0008338-2012


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                        FILED OCTOBER 26, 2015

      Appellant, Frank Booker, appeals from the judgment of sentence

entered after a jury convicted him of, among others, third degree murder of

Calvonne Rollins.   Booker argues that the trial court erred in failing to

instruct the jury on the issue of self-defense. After careful review, conclude

that Booker’s challenges to the trial court’s jury instructions are waived and

affirm the judgment of sentence.

      The trial court summarized the evidence presented at trial as follows.

      On May 11, 2012, [Rollins] picked up his girlfriend, Tamira
      Scheuermann, at work and drove to the Get Go gas station
      located in Penn Hills where they were to meet some other
      people. Rollins was driving and Scheuermann was the front seat
      passenger and the one-year-old son that she had with Rollins
      was in a car seat in the middle of the back seat. At the Get Go
      station they met up with James Ingram whom they knew and
      Frank Booker, whom they had never met before. Ingram asked
      Rollins to give him a ride back to his house so that he could get
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     his phone charger and he got into Rollins’ vehicle. Since they
     did not know Booker, they left him at the Get Go gas station.

     Rollins drove Ingram to his house and they agreed to meet a
     little while later so all of them could smoke some marijuana.
     Later that day they met up with Gerald Brown and they smoked
     the marijuana. Rollins decided to go back to the Get Go station
     and was travelling along Coal Hollow Road when they ran into
     Ingram who was leaving his girlfriend’s house who asked them
     to give Booker a ride and he would pay for it. They met up with
     Booker a short time later and he agreed to pay for the ride to go
     to Blackadore Street. Booker was seated directly behind Rollins
     in the left rear passenger seat. When they approached the
     intersection of Blackadore and Ravina, Rollins stopped the car.
     Scheuermann, who was on the phone, thought that Booker was
     going to pay Rollins for the jitney ride since he was fiddling with
     something inside of his hoodie. Booker then pulled a silver gun
     and put it to Rollins head and told him to “give it up.” When
     Brown saw the gun, he opened the right rear passenger door
     and ran from the car. Rollins attempted to swat the gun away
     from Booker and Scheuermann grabbed his wrist in an effort to
     get it away from Booker. Rollins then attempted to push Booker
     toward the open right rear door when Booker started to fire
     anywhere between five and six shots at Rollins. Booker then
     fled from the scene. The Escalade started to drift back down
     Blackadore until it hit another car and came to rest. Rollins then
     opened the driver’s door and rolled out of the car and was lying
     on the ground. Scheuermann called 911 and requested the
     police and paramedics who arrived within ten minutes of that
     call. It is obvious that Rollins was in critical condition as a result
     of the life-threatening wounds that he received. When he was
     transported by the paramedics to Presbyterian-University
     Hospital, he had no pulse and was subsequently declared dead
     by the physicians who initially treated him at the hospital. No
     weapon was found on Rollins by the paramedics or the
     emergency room personnel who attempted to treat Rollins.

     In processing the Escalade, two bullet fragments were found,
     one in the driver’s door and the other one in the driver’s
     footwell. It was determined that the bullet fragments were the
     same caliber and although they had similar markings, the
     criminalist who examined these fragments was unable to
     determine if they had been fired from the same weapon because
     one of the fragments was so small.

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       Brown and Scheuermann were interviewed that evening and told
       the Allegheny County Police that Booker was the shooter. The
       police prepared photo arrays for both Brown and Scheuermann
       and both of these individuals identified Booker as the individual
       who shot Rollins. An arrest warrant was issued for Booker and
       several weeks later, he was arrested in Williamsport,
       Pennsylvania.

Trial Court Opinion, 3/2/15, at 3-5.

       On appeal, Booker seeks to raise two challenges to the jury

instructions provided by the trial court.1       Both issues are premised upon

Booker’s theory of the case that Rollins and Scheuermann attempted to rob

him in the Escalade, and that he shot Rollins believing that his life was in

danger.       However, prior to addressing this issue, we must determine

whether it has been properly preserved.

       “No portions of the charge or omissions from the charge may be

assigned as error, unless specific objections are made thereto before the

jury retires to deliberate.” Pa.R.Crim.P. 647(B). Furthermore, the Supreme

Court of Pennsylvania has held that “the mere submission and subsequent

denial of proposed points for charge that are … omitted from the instructions

____________________________________________


1
  We note that counsel for Booker failed, in contravention of Pa.R.A.P.
2111(a), to include a separate section in his appellate brief setting forth a
statement of questions involved.          Since counsel provided detailed
statements of the issues in his statement of the scope and standard of
review, and provides a thorough argument section, this failure does not
impact our ability to review Booker’s claims. We highlight this error merely
to alert counsel to this technical non-compliance with the Rules of Appellate
Procedure.



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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).

Even if an appellant objects to an instruction during the charging conference,

this Court has found the issue waived if there is no objection after the actual

instructions have been given.     See Commonwealth v. Parker, 104 A.3d

17, 29 (Pa. Super. 2014).

      In the instant matter, defense counsel asked the trial court “[a]re you

going to charge on self-defense at all?”      N.T., Trial, 8/20-22/13, at 251.

After the trial court indicated that it would not, defense counsel argued that

self-defense was an issue for the jury to decide. See id., at 251-252. After

hearing counsel’s argument, the trial court again declined to instruct the jury

on self-defense, to which defense counsel responded, “[o]kay, then if you

would give me a few minutes, I need to take that information out of my

closing.” Id., at 252. After the trial court read its instruction to the jury, it

asked for any additions or corrections from the parties.       Defense counsel

responded, “[n]othing on behalf of the defense, Your Honor.” Id., at 295.

      Thus, while defense counsel requested that the trial court instruct the

jury on the issue of self-defense, she did not object after the actual

instruction did not include this issue.     Under Pressley and Parker, this

failure results in waiver of Booker’s challenges to the jury instructions.

      Judgment of sentence affirmed. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2015




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