J-S44021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                       :     IN THE SUPERIOR COURT OF
                                                       :          PENNSYLVANIA
                                                       :
                  v.                                   :
                                                       :
                                                       :
    MERLE ALAN PAGE, JR.                               :
                                                       :
                           Appellant                   :     No. 46 WDA 2019

       Appeal from the Judgment of Sentence Entered February 21, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0001439-2017


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                                   FILED FEBRUARY 3, 2020

        Merle Alan Page, Jr. appeals from the judgment of sentence entered

following   his        jury-trial   conviction   for       third-degree   murder, recklessly

endangering another person (“REAP”), possessing instruments of crime

(“PIC”), and firearms not to be carried without license.1 He maintains the trial

court should have given a voluntary manslaughter jury instruction and that

the court failed to award him credit for time served. We conclude the trial

court did not err in denying his request for a voluntary manslaughter

instruction. However, we vacate the sentencing order and remand for the trial

court to determine whether Page is entitled to credit for time served.




____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 2705, 907, and 6106(a)(1), respectively.
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      The facts and procedural history of this case are as follows. Following a

shooting at a Shell gas station, police arrested and charged Page, and he

proceeded to a jury trial.

      At trial, Page’s cousin, Shawnquel Pennamon, testified that he was with

Page on the night of the shooting. According to Pennamon’s testimony, after

attending a party for their grandmother, he, Page, and Deonte Duck went to

the Off-the-Wall Bar. Pennamon said he and Page were drinking, and they

“pop[ped] a Molly,” which was a party drug that gave an energy boost. N.T.,

1/8/18, at 100-01. They then travelled to a bar named Marty’s, but were

unable to enter because a fight had occurred inside the bar. Id. at 103-04.

The trio stopped at the Shell station and bought cigars. After they left, they

realized that they forgot to purchase gas, so they returned to the Shell station.

Id. at 110.

      Pennamon testified that when they returned, the victim, Marcell

Flemings, was in a car at the gas station. The victim had been sprayed with

mace during the fight at Marty’s. Pennamon stated that at first Page and Duck

were attempting to assist the victim. Id. at 111-12. An argument then broke

out. He testified that he could not hear much of the argument, but believed

he heard the victim say something about someone’s brother. Id. at 112. He

further stated the fight was about “[a] baby mom or something.” Id. at 112-

13. Pennamon testified that the video showed the victim taking off his coat

and walking toward Page. Id. at 141. Pennamon said Page took a swing at

the victim, and people tried to break up the fight. Id. at 113. Pennamon saw

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Page headed back to the car, and the victim started walking to the same

vehicle. Id. at 143. As Pennamon was headed back to the driver seat, he

heard a gun shot. Id. at 115. Pennamon, Page, and Duck drove away, and

then abandoned the vehicle and fled on foot. Id. at 120.

      A store clerk from the Shell gas station, Sean Price, testified that he saw

the argument and that the only statement he heard was the victim’s last

words, which were, “[W]hat are you going to do, shoot me?” Id. at 162-63.

      Police officers who investigated the shooting also testified, and the

prosecution put into evidence a copy of surveillance video from the Shell

station, depicting the events. In defense, Page presented the testimony of his

girlfriend, Adejah Pacley, who was not at the Shell station at the time of the

shooting.

      Page asked the court t instruct the jury on voluntary manslaughter,

arguing that Page shot the victim in the heat of passion and did not have an

opportunity to cool down. Id. at 217. The trial court denied the request,

finding the evidence did not warrant the instruction:

         I think it would make a mockery of the crime of voluntary
         manslaughter, because the video clearly shows [the victim
         is] disabled when he’s first there, he can’t even see. He’s
         walking around, some people are guiding him. Your client is
         well aware of that. Your client is standing there watching
         him put milk on his face and knows that[] he’s not a harm,
         you know, he’s not armed. Doesn’t – put it this way, there’s
         no arms there at all. There’s nothing going on at that point
         and he was in no condition to present a threat to anybody
         at that point.

         Now, when he comes out of . . . the convenience store,
         obviously his eyesight is better and the video speaks for

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         itself that they get into a verbal argument. But a verbal
         argument in and of itself is not a basis for heat of passion.
         And in fact, in all of this – and you’re correct . . . in your
         analysis – all this is undisputed.

         Then your client basically rushes the guy. I mean it’s clear
         that he’s the one who rushes the guy and that’s when they
         have the physical altercation. So he’s not afraid of him at
         that point. Rushes him, it looks like he’s getting the better
         of him basically, does some back pedaling and then they go
         out of the picture.

         So then they come back into the picture. Your client is over
         by his car, has the opportunity to leave in the car. Granted,
         and I know you’re going to make this argument, but he
         starts to come forward, [the victim]; but there’s also people
         trying to intervene and there’s no reason under those
         circumstances for your client to go get the gun and come
         out and shoot. Especially – let’s just say hypothetically there
         was heat of passion for him to go get a gun, but you get a
         gun and here’s a guy standing in front of you and in a well
         lit area with his arms out and has no weapons and you’re
         shooting the unarmed man at close range with other people
         around and you shoot multiple times. I don’t see that as
         heat of passion.

N.T., 1/9/18, at 4-6.

      The jury found Page guilty of third-degree murder, REAP, PIC, and

firearms not to be carried without a license. The trial court sentenced Page to

240 to 480 months’ incarceration for third-degree murder, 12 to 24 months’

incarceration for REAP, 14 to 28 months’ incarceration for PIC, and 42 to 84

months’ incarceration for firearms not to be carried without a license. The

sentences were imposed consecutive to each other. The court did not give

Page credit against the sentence for time served in jail pending trial. Rather,

it stated on the record that it would give the credit against sentences it was




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imposing in two separate cases2 in which it was revoking parole. N.T.,

2/21/18, at 42.

       Page filed a motion to reconsider/modify sentence, which the trial court

denied. Page did not file a notice of appeal, but did file a timely petition

pursuant to the Post Conviction Relief Act seeking reinstatement of his direct

appeal rights nunc pro tunc. The trial court re-instated his direct appeal rights,

and Page filed this appeal.

       Page raises the following issues:

          1. Did the trial court commit an abuse of discretion and/or
          error of law when it denied the defense’s request for an
          instruction on voluntary manslaughter (heat of passion)?

          2. Did the trial court err when it failed to award all of the
          credit for the time [Page] served after his arrest on this
          docket until his sentencing (i.e. January 27, 2017 to
          February 21, 2018)?

Page’s Br. at 7 (suggested answers omitted).

       Page first argues that the evidence admitted at trial supported a heat of

passion jury instruction. He argues that the victim started the argument, made

reference to his brother and/or a “baby mama,” took off his coat as if to fight,

and followed Page.

       The trial court did not err in finding the instruction not warranted. A trial

court should instruct as to “heat of passion” voluntary manslaughter “only

where the offense is at issue and the evidence would support such a verdict.”

Commonwealth v. Sanchez, 82 A.3d 943, 979 (Pa. 2013) (quoting
____________________________________________


2   Docket numbers CP-25-CR-0002700-2017 and CP-25-CP-0002515-2016.

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Commonwealth v. Montalvo, 986 A.2d 84, 100 (Pa. 2009)). To support a

voluntary manslaughter verdict, “the evidence would have had to demonstrate

that, at the time of the killing, [a]ppellant acted under a sudden and intense

passion resulting from serious provocation by the victim.” Id. (quoting

Montalvo, 986 A.2d at 100) (alteration in original). To determine “whether

there was sufficient provocation to create uncontrollable passion in a

reasonable person, we determine whether the killer actually acted in the heat

of passion, whether the provocation [led] directly to the slaying of the person

responsible for the provocation, and whether the killer had sufficient cooling

off time.” Commonwealth v. Martin, 5 A.3d 177, 186 (Pa. 2010). We will

reverse a trial court’s decision to deny a requested jury instruction “only when

it abused its discretion or committed an error of law.” Commonwealth v.

Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011) (quoting Commonwealth v.

Galvin, 985 A.2d 783, 798–99 (Pa. 2009)).

      Here, there was evidence that the victim and Page engaged in a fight

prior to the shooting, and that the victim instigated the fight. The victim may

have said something about Page’s brother or a “baby mama,” and the victim

was walking toward Page at the time of the shooting. Such comments would

not justify a heat of passion jury instruction. There is no evidence that “there

was sufficient provocation to create uncontrollable passion in a reasonable

person.” See Martin, 5 A.3d at 186. The court did not abuse its discretion or

err when it denied Page’s request.




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      Page next argues that the trial court failed to award the credit for all of

the time he served after his arrest until the date of sentencing. He states that

“[a]lthough the trial court directed that all of the credit be spread over the

two revocation dockets, a review of the sentencing order shows that all of the

days were credited at only one revocation docket . . . even though the amount

of credit exceeded the maximum sentence at this docket.” Page’s Br. at 28.

He further argues that the court miscalculated the credit and that additional

days “should have been credited to his other revocation docket . . . or the

instant docket.” Page’s Br. at 32.

      A claim that the trial court failed to award credit for time served prior to

sentencing is a challenge to the legality of the sentence. Commonwealth v.

Johnson, 967 A.2d 1001, 1003 (Pa.Super. 2009). A trial court must order

credit for time served “for all time spent in custody as a result of the criminal

charge for which a prison sentence is imposed or as a result of the conduct on

which such a charge is based.” 42 Pa.C.S.A. § 9760(1). This includes “credit

for time spent in custody prior to trial, during trial, pending sentence, and

pending the resolution of an appeal.” Id.

      Page supplemented the record in this case with the sentencing orders

from his revocation dockets. The orders reflect that the court ordered credit

for time served at only one of the two revocation dockets. In that case, the

court sentenced Page to a maximum of one year in jail, and ordered that he

was to receive credit for time served of 433 days, i.e., more than one year.

However, the excess days were not applied against the sentence in either the

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second revocation docket or, more relevant to this appeal, the present case.

Page has therefore not received credit “for all time spent in custody as a result

of the criminal charge for which a prison sentence is imposed.” We therefore

vacate the sentence in this case and remand to the trial court to determine

the amount of credit Page has not received and to apply the credit due.

      Judgment     of   sentence   vacated.    Case    remanded.     Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2020




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