Com. v. Kemp, W.

J-S31028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

WILLIAM JOSEPH KEMP,

Appellant No. 993 MDA 2014

Appeal from the Judgment of Sentence entered January 29, 2014,
in the Court of Common Pleas of Lycoming County,
Criminal Division, at No(s): CP-41-CR-0000525-2012

BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.: FILED JUNE 08, 2015

William Joseph Kemp (“Appellant”) appeals from the judgment of

sentence imposed after a jury found him guilty of third degree murder, two

counts of aggravated assault, possession of an instrument of crime, and two

counts of recklessly endangering another person.1 We affirm.

The trial court summarized the pertinent facts and procedural history

as follows:

In the evening of February 13, 2012, Kristen Radcliffe,
Michael Updegraff, and Thomas Schmitt were drinking at the
Fifth Avenue Tavern in Williamsport. Updegraff and Radcliffe,
who were boyfriend and girlfriend, got into a disagreement.
Radcliffe left the Tavern and walked away down Fifth Avenue,
ending up outside [Appellant’s] apartment. Twenty to thirty

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1
18 Pa.C.S.A §§ 2502(c), 2702(a)(1) and (4), 907(a), and 2705.
J-S31028-15

minutes later, [Appellant] gave Radcliffe a ride to the residence
she shared with Updegraff at 1017 Franklin Street.

[Appellant entered the residence with Radcliffe. Updegraff
was upstairs and Schmitt was sitting on a couch downstairs.]
When Updegraff came downstairs and saw [Appellant], he asked
[Schmitt] who the hell [Appellant] was. [Schmitt responded that
he did not know and that Ms. Radcliffe had brought him].
Radcliffe explained that [Appellant] had given her a ride home.
Updegraff told [Appellant] to get out of his house but [Appellant]
refused to leave. Radcliffe apologized for Updegraff’s behavior
and told [Appellant] that he should just leave.

Updegraff grabbed [Appellant] and pushed or shoved him
into a wall and then out the door. Updegraff and Schmitt
followed [Appellant] outside and part way down the driveway.
Updegraff stopped at the end of his van [parked in the driveway]
and Schmitt continued walking for several feet so that he was
approximately midway between the end of the van and
[Appellant’s] vehicle, which was parked on Franklin Street.
Throughout, Updegraff and Schmitt continued yelling at
[Appellant] to keep going, get off the property and leave.

[Appellant] continued walking quickly down the driveway
to his vehicle. Instead of leaving, however, [Appellant] opened
the door of his vehicle and grabbed his handgun. He turned
back towards Updegraff and Schmitt and began firing shots as
he moved towards them. One shot struck Schmitt in the neck
and another was a contact or near contact shot to the back of his
head.

Updegraff and Radcliffe tried to wrest the firearm away
from [Appellant]. While doing so, they punched and kicked
[Appellant] repeatedly. Various neighbors saw and/or heard the
gunshots and commotion and called 911. Within minutes, the
police arrived and took [Appellant] into custody. [Schmitt died
as a result of his wounds].

Trial Court Opinion, 6/9/14, at 1-2; N.T., 9/9/13, at 152; N.T., 9/11/13, at

83.

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Appellant was charged with the aforementioned crimes, and a jury trial

commenced on September 9, 2013. On September 17, 2013, the jury

returned its guilty verdicts.

Following a hearing on January 29, 2014, the trial court sentenced

Appellant to a term of imprisonment of twenty (20) to forty (40) years.

Appellant filed a timely post-sentence motion on February 7, 2014, which

the trial court denied by opinion and order dated June 9, 2014. This timely

appeal followed. The trial court directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.

Appellant complied, and on September 5, 2014, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a), stating that it had addressed all of

Appellant’s issues in its June 9, 2014 opinion.

Appellant raises ten issues for our review:

I. Whether the [trial court] erred regarding the admissibility
of the term “execution?”

II. Whether the [trial court] erred in Granting
Commonwealth’s Motion to Preclude Dr. Guazzardi’s
testimony?

III. Whether the [trial court] erred in its rulings regarding the
admissibility of testimony by Dr. Alhashimi, the testimony
of Dr. Dowell, the use of the word “concussion”, and
Comments by the Commonwealth regarding Appellant’s
fabrication of testimony?

IV. Whether the [trial court] erred in Denying Appellant’s
request for a mistrial due to Dr. Hamel’s care for a juror
during trial?

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V. Whether the [trial court] erred in Granting
Commonwealth’s Motion to Preclude the admissibility of
Updegraff’s Criminal Record?

VI. Whether the [trial court] erred in permitting the
Commonwealth’s introduction of Appellant’s Statements at
12/24/09 Clinton County C&Y Hearing?

VII. Whether the [trial court] erred in Denying Appellant’s
request for Voluntary Manslaughter/Heat of Passion Jury
Instruction?

VIII. Whether the Evidence presented by the Commonwealth
was insufficient to disprove self-defense?

IX. Whether the Verdict of Guilty for Each Offense was Against
the Weight of the Evidence?

X. Whether the sentence was excessive?

Appellant’s Brief at 8.

In his first issue, Appellant challenges the trial court’s decision to

preclude the testimony of Appellant’s expert witness, Dr. Eric Vey, from

testifying that Schmitt was not shot “execution style.” Appellant’s Brief at

34-36.

The admissibility of evidence is within the sound discretion of the
trial court, and this Court will not reverse a trial court's decision
concerning admissibility of evidence absent an abuse of the trial
court's discretion. An abuse of discretion will not be found based
on a mere error of judgment, but rather exists where the court
has reached a conclusion which overrides or misapplies the law,
or where the judgment exercised is manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014).

Appellant argues that the trial court erred when it granted the

Commonwealth’s motion in limine. Appellant’s Brief at 34-36. Specifically,

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Appellant argues that because in its closing arguments, the Commonwealth

stated that Appellant “executed” Schmitt, Appellant should have been

permitted to provide expert testimony to contradict the argument that the

shooting was “execution style.” Id.

It is well-settled that “[t]he purpose of expert testimony is to assist in

grasping complex issues not within the ordinary knowledge, intelligence and

experience of the jury.” Commonwealth v. Mendez, 74 A.3d 256, 262

(2013) quoting Commonwealth v. Zook, 615 A.2d 1, 11 (Pa. 1992)

(citations omitted).

After Appellant indicated his intent to have Dr. Vey testify that the

shooting was not “execution style”, the Commonwealth, on February 6,

2013, filed a motion in limine to preclude such testimony on grounds that

whether the shooting was “execution style” was not the subject of expert

testimony. The trial court agreed, explaining: “By Dr. Vey’s own account,

execution style shooting was not a forensic pathology term [but] a media

construct. As such, it was not beyond the knowledge of the average

layperson; it was a term created for the average layperson by the media.”

Trial Court Opinion, 6/9/14, at 4. Accordingly, the trial court granted the

Commonwealth’s motion in limine.

Upon review, we find no abuse of discretion in the trial court’s

determination that what constitutes an “execution style” killing was not

within the area of expertise of a forensic pathologist, and was not a subject

beyond the capability of a lay jury to assess. Moreover, in its case in chief,

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the Commonwealth did not elicit any testimony that the shooting was

“execution style” to require rebuttal testimony to refute such a claim.

Although in its closing argument, the Commonwealth did state that the

victim was “executed,” and Appellant promptly objected, our case law is

clear that “[a] prosecutor is permitted latitude to make argument with

oratorical flair.” Commonwealth v. Judy, 978 A.2d 1015, 1020 (2009).

N.T., 9/17/13, at 85; 89-91. Moreover, “prosecutorial misconduct will not

be found where comments were based on the evidence or proper inferences

therefrom.” Id. Here, as the trial court explained, “there [was] forensic

testimony that the gunshot wounds were contact and/or near contact or

within half an inch, I believe ... And I do agree that it’s fair to comment on

the evidence in both sides.” N.T., 9/17/13, at 91. We find no abuse of

discretion in the trial court’s ruling.

Appellant’s second and third issues are interrelated. Therefore, we will

address them together. Appellant argues that the trial court erred when it

granted the Commonwealth’s motion to preclude the testimony of

Appellant’s toxicology expert witness, Dr. Lawrence Guazzardi, and the

testimony of Dr. Richard Dowell, a neuropsychological expert. Appellant’s

Brief at 37-41.2 Specifically, Appellant sought to have Dr. Guazzardi testify
____________________________________________

2
Appellant also challenges the trial court’s decision to preclude the
testimony of Dr. Alhashimi. Appellant does not direct this Court to precisely
where in the record or in the eight volumes of the notes of testimony from
trial this testimony was excluded. Commonwealth v. LaCava, 666 A.2d
(Footnote Continued Next Page)

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to Appellant’s blood alcohol level at the time of the offenses, and how

Appellant’s alcohol consumption, in addition to a head injury incurred after

the shooting when subdued by Mr. Updegraff, would have affected

Appellant’s memory of the offenses. Appellant sought to present such

expert testimony in an effort to explain statements he made to police after

the incident that he did not remember the shooting, and to provide an

explanation for the gaps in his recollection when he testified on his own

behalf, so that the jury would understand that he was not feigning memory

loss for self-serving purposes. N.T., 9/12/13, at 177; 9/16/13, at 46, 71,

129-140. To that end, Appellant sought to have Dr. Guazzardi, a toxicology

expert, testify that “both alcohol intoxication, at the level present in this

_______________________
(Footnote Continued)

221, 234–35 (Pa. 1995) (failure to identify in the record where error
occurred, with proper citation to the record, constitutes waiver of claim).
Nevertheless, our independent review of the record indicates that at trial, on
September 16, 2013, the parties stipulated to the introduction of Dr.
Alhashimi’s expert report, and reached an agreement as to which portions
the jury should be permitted to hear and which portions should be redacted.
N.T., 9/16/13, at 36-44.

To the extent that Appellant argues that he was precluded from
including the portion of Dr. Alhashimi’s report indicating that Appellant
suffered a concussion, the trial court explained that Dr. Alhashimi never
diagnosed Appellant as actually having suffered a concussion but only opined
that Appellant suffered a “possible concussion” which did not meet the
requisite certainty for expert testimony. Trial Court Opinion, 6/9/14, at 16.
Appellant does not dispute this determination, and we find no abuse of
discretion. See Commonwealth v. Gonzalez, 109 A.3d 711 (Pa. Super.
2015) (where the expert’s opinion is grounded “on mere possibilities instead
of a reasonable degree of certainty” such an opinion is “nothing more than
conjecture or surmise”).

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matter, or a concussion, can cause transient loss of memory and

inappropriate thought process and conduct”, and that Appellant’s alcohol

consumption prior to the offenses affected his ability to recall or recollect the

circumstances surrounding the shooting. Appellant’s Brief in Opposition to

Commonwealth’s Motion, 2/22/13. Additionally, Appellant sought to

introduce the testimony of Dr. Dowell that, as a result of the head injury or

concussion suffered by Appellant during his altercation with Mr. Updegraff,

Appellant suffered memory loss resulting in memory gaps and inconsistent

recollection of the events surrounding the offenses. Id.

On March 8, 2013, the Commonwealth filed a motion to preclude such

expert testimony, which the trial court granted. In the order granting the

Commonwealth’s motion to preclude the testimony of Dr. Guazzardi, the trial

court explained:

The expert testimony of Dr. Lawrence Guzzardi and Dr. Richard
Dowell, Jr. shall not be admitted for the purpose of explaining
[Appellant’s] statements, lack of statements, and/or the manner
in which the statements were made to police, as the credibility
[of] Appellant and his statements are to be assessed by the jury
and are not within the domain of expert witnesses. See
Commonwealth v. Crawford, 718 A.2d 768 (Pa. 1998)
(finding that expert testimony to explain revival of repressed
memory and how it affected a witnesses’ statement and his
credibility was within the exclusive province of the jury and
should have been excluded) see also, Commonwealth v.
Gallagher, 547 A.2d 355 (Pa. 1998); Commonwealth v.
Dunkle, 602 A.3d 830 (Pa. 1992); Commonwealth v.
Constant, 925 A.2d 810 (Pa. Super. 2007). Expert testimony
on intoxication, however, is not precluded from being presented
to show that [Appellant] was incapable of forming a specific
intent to kill. See Commonwealth v. Blakeney, 946 A.2d 645
(Pa. 2008).

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Trial Court Order, 3/15/13, at 1-2.

We find no abuse of discretion in the determination by the trial court

that the question of whether Appellant’s memory was affected by his alcohol

use and subsequent head injury was a subject which was within the ordinary

knowledge, intelligence and experience of the jury. Moreover, to the extent

that Appellant argued “alcohol could have caused memory loss and affected

[Appellant’s] statements to police,” this Court has held that where the

expert’s opinion is grounded on “mere possibilities instead of a reasonable

degree of certainty”, such an opinion is “nothing more than conjecture or

surmise.” Commonwealth v. Gonzalez, 109 A.3d 711 (Pa. Super. 2015)

(upholding trial court’s decision to exclude evidence that a diagnosis of

depression and anxiety in the medical records ‘may affect’ [the victim’s]

perception and recollection where expert failed to opine that the alleged

depression or anxiety impaired her perception or recall of the critical events

at the heart of the case); Appellant’s Brief in Opposition to Commonwealth’s

Motion in Limine, 2/22/13 at 4.

Finally, even if such testimony was erroneously precluded, it did not

constitute reversible error.

In deciding whether this error necessitates the grant of a new
trial, we must consider whether the error was harmless under
the circumstances. An error is harmless only if the reviewing
court concludes beyond a reasonable doubt that it could not
have contributed to the verdict. It is the burden of the
Commonwealth to prove, beyond a reasonable doubt, that the
error did not contribute to the verdict. If there exists a

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reasonable possibility the error contributed to the conviction it
cannot be deemed harmless.

There are three circumstances under which our Court has
recognized that an error is harmless: (1) the error was not
prejudicial to the defendant, or any prejudice suffered by the
defendant was de minimis; (2) erroneously admitted evidence
was cumulative with respect to other properly admitted
evidence; or (3) the prejudicial effect of the error is so
insignificant in comparison to the other trial evidence that it is
clear beyond a reasonable doubt that the error could not have
contributed to the fact-finder’s decision.

Commonwealth v. Brown, 52 A.3d 1139, 1182 (Pa. 2012).

Here, any prejudicial effect from the preclusion of expert testimony

that Appellant’s alcohol consumption and head injury incurred after the

shooting impacted his ability to recollect the events after the fact, was de

minimis, and would not have contributed to the jury’s decision, given the

overwhelming evidence Appellant’s guilt. At trial, the Commonwealth

presented the testimony of Mr. Updegraff and Ms. Radcliffe that Appellant

shot the victim at close range, which was corroborated by testimony from

various neighbors who witnessed the shooting, as well as both the

Commonwealth’s and Appellant’s experts who agreed that the victim was

shot at very close range. Accordingly, the preclusion of expert testimony

that Appellant suffered a concussion after the shooting was so insignificant

in comparison that any error by the trial court in excluding that testimony

could not have contributed to the verdict. Moreover, when Appellant

testified on his own behalf, he described to the jury the injuries to his head,

and repeatedly testified that he suffered a loss of recollection of the shooting

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incident because of a “beating” by Mr. Updegraff. N.T., 9/16/13, at 46, 71.

For the foregoing reasons, we conclude that Appellant is not entitled to

relief.

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

denying his request for a mistrial after the Commonwealth’s forensic

pathology expert, Dr. Marianne Hamel, rendered aid to a juror who became

ill. Appellant’s Brief at 42. Specifically, Appellant references an event that

occurred while Dr. Hamel was testifying about the injuries suffered by the

victim, during which graphic autopsy photographs were displayed to the

jury. N.T., 9/9/13, at 103. The record reflects that one of the jurors

experienced a “problem breathing” and became “light headed and pale.” Id.

at 105. Dr. Hamel immediately went to the juror’s assistance, and the trial

court ordered a recess and released the rest of the jurors to the jurors’

lounge. Id. EMS personnel arrived shortly thereafter and determined that

the juror had suffered a “vasovagal reaction” or “emotional physical

response” to the photographs. Id. at 106. The juror stated that he could

not continue to serve if more photographs were to be displayed, and both

parties agreed to the release of the juror. Appellant’s counsel then

requested a mistrial, asserting that the jury’s observation of Dr. Hamel

providing medical aid would increase their perception of her credibility. Id.

at 107.

The trial court denied the request for a mistrial, explaining: “I don’t

think what occurred was such that it would deprive [Appellant] of a fair trial.

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I think it’s a different situation than if the doctor were, in fact a party. The

doctor in this particular case is ... a witness, and the medical care that ...

she provided was nothing more than sitting there and talking to [the juror],

reassuring him that he was okay, and I don’t think under those

circumstances that it’s ... such that would cause the jurors to decide the

case not on the facts and circumstances or to unfairly prejudice [Appellant].”

Id., at 108-109. The trial court, however, did provide the jury with the

following curative instruction:

Okay, we’re back on the record after that series of events.
Fortunately he’s fine, but as you know we excused him in light of
the circumstances.

One thing that I do have to caution you on ... I don’t really like
to do this, but we have to do this in court. Obviously, as a result
of what happened, our witness, Dr. Hamel, went to the
assistance of [the juror]. You have to remember when you
decide this case and decide what occurred, that can’t factor into
your decision the fact that she went and helped. You have to
decide it based on the other factors that we talk about.

Id. at 110.

“[T]he trial court is vested with discretion to grant a mistrial whenever

the alleged prejudicial event may reasonably be said to deprive the

defendant of a fair and impartial trial. In making its determination, the court

must discern whether misconduct or prejudicial error actually occurred, and

if so, ... assess the degree of any resulting prejudice. Our review of the

resulting order is constrained to determining whether the court abused its

discretion.” Commonwealth v. Judy, 978 A.2d 1015, 1019–1020 (Pa.

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Super. 2009) (quotation marks and citations omitted). “The remedy of a

mistrial is an extreme remedy required only when an incident is of such a

nature that its unavoidable effect is to deprive the appellant of a fair and

impartial tribunal.” Id.

We find no abuse of discretion in the trial court’s decision not to grant

a mistrial. Dr. Hamel did not provide any treatment to the juror other than

to speak with him and reassure him, and the trial court issued an

appropriate curative instruction to the jury instructing them not to allow Dr.

Hamel’s rendering of aid to the juror to factor into their decision making.

The jury is presumed to have followed the court's instructions.

Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992). Thus, any

prejudice that may have resulted from Dr. Hamel’s actions was adequately

cured by the trial court's instructions.

In his fifth issue, Appellant argues that the trial court erred when it

precluded him from presenting Mr. Updegraff’s criminal record to the jury.

Appellant’s Brief at 45-48. Our Supreme Court has held that “as an

evidentiary matter ... when self-defense is properly at issue, evidence of the

victim's prior convictions involving aggression may be admitted, if probative,

either (1) to corroborate the defendant's alleged knowledge of the victim's

violent character, to prove that the defendant was in reasonable fear of

danger, or (2) as character/propensity evidence, as indirect evidence that

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the victim was in fact the aggressor. Commonwealth v. Mouzon, 53 A.3d

738, 741 (Pa. 2012).3 However, “[o]nly those past crimes of the victim that

are similar in nature and not too distant in time will be deemed probative,

with the determination as to similar nature and remoteness resting within

the sound discretion of the trial judge.” Id.

Here, the trial court concluded, and Appellant does not dispute, that he

had no knowledge of Updegraff’s criminal record prior to the offenses. The

trial court reasoned that “Mr. Updegraff’s convictions were too remote in

time”, explaining that Updegraff’s convictions occurred between 2001 and

2004, and that the seven year length of time that had elapsed since Mr.

Updegraff’s last conviction rendered them too remote to be probative. See

Trial Court Order, 8/12/13. We find no abuse of discretion in this

determination. Moreover, to the extent that Appellant, through introduction

of Updegraff’s criminal record, sought to apprise the jury of Mr. Updegraff’s

violent tendencies, the record is clear that upon Appellant’s initial entry the

house with Ms. Radcliffe, Mr. Updegraff reacted in a hostile and aggressive

manner, Mr. Updegraff himself testifying at trial that he “grabbed hold” of

Appellant and “forcefully ... removed him onto my porch,” that “pushing and

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3
While the trial court in its order denying Appellant’s motion stated that “the
victim in this case was not Updegraff,” the record indicates that Mr.
Updegraff was in fact one of the victims — in addition to finding Appellant
guilty with regard to the deceased victim, Mr. Schmitt, the jury also found
Appellant guilty of the reckless endangerment of Mr. Updegraff.

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shoving” ensued and Mr. Updegraff punched Appellant in the chest and in

the chin, by which the jury was well aware that Mr. Updegraff was capable of

violence. N.T., 9/9/13, at 152-156.

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

permitting the Commonwealth to introduce statements Appellant made at an

December 2009 dependency hearing on a petition filed by the Clarion County

Children and Youth Services, at which Appellant, explaining why he carries a

gun and knives, stated: “Well, honestly, because I have a right to; and I

feel like I should exercise it. And what’s the point in having the guns and

the permit to carry if you’re not going to make use of it. ... If I don’t have

the .45 on my hip, I would have a knife in my pocket at almost all times.”

Trial Court Opinion, 6/9/14, at 13-14; Appellant’s Brief at 49-51.

On September 6, 2013, the trial court entered an order precluding the

Commonwealth from introducing Appellant’s statements in its case in chief.

However, the Commonwealth was not precluded from introducing the

statements for purposes of rebuttal, and during trial, the trial court

ultimately permitted the Commonwealth to introduce the challenged

statements as rebuttal, on grounds that Appellant “opened the door” to such

testimony. N.T., 9/16/13, at 15. Specifically, the trial court explained:

During trial, [Appellant’s] counsel asked [Appellant’s] former
girlfriend, Kristen Smith, why [Appellant] kept his firearm in his
automobile. Ms. Smith testified that [the reason Appellant kept
a gun in his car was because] the weapon was not permitted in
her residence. This opened the door for the Commonwealth to

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rebut this evidence with [Appellant’s] own statements about why
he kept guns in his vehicle.

Trial Court Opinion, 6/9/14, at 14. Accordingly, the trial court permitted the

Commonwealth to rebut the testimony of Ms. Smith by introducing

Appellant’s statements that he felt he had a right to carry a gun, and

routinely did so. N.T., 9/16/13, at 33-35.

The admission of rebuttal testimony is within the sound discretion of

the trial court, and the appropriate scope of rebuttal evidence is defined by

the evidence that it is intended to rebut. Commonwealth v. Ballard, 80

A.3d 380, 401 (Pa. 2013). We find no abuse of discretion in the trial court’s

determination that Appellant’s prior statements were permissible to rebut

the inference that if Ms. Smith had permitted Appellant’s gun to be kept in

her house, Appellant would not have had the gun with him in the car. This

claim fails.

In his seventh issue, Appellant argues that the trial court erred when it

denied his request for a “heat of passion” jury instruction. Appellant’s Brief

at 52-53. Appellant does not include in his brief any citation to the portion

of the notes of testimony (which encompassed six days of trial and eight

volumes of testimony), where he requested such a jury instruction. See

LaCava, 666 A.2d at 234–35 (failure to identify in the record where the

error occurred, with proper citation to the record, constitutes waiver of

claim). We are able to discern, however, that prior to closing arguments,

Appellant requested a “heat of passion” instruction as well as an instruction

that Appellant acted under an “unreasonable belief” that the killing was

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justified, to allow the jury to consider a voluntary manslaughter verdict.

N.T., 9/17/13, at 2-3. The trial court agreed to instruct the jury on

unreasonable belief/voluntary manslaughter, instructing the jury when a

defendant is guilty of voluntary manslaughter. 18 Pa.C.S.A § 2503(b);

N.T., 9/17/13, at 129-131. However, the trial court denied Appellant’s

request for a “heat of passion” instruction.

Appellant argues that the trial court erred when it denied his request

for a “heat of passion” instruction. Appellant’s Brief at 52-53.

Pennsylvania's Crimes Code provides:

(a) General rule.--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:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but
he negligently or accidentally causes the
death of the individual killed.

18 Pa.C.S.A. § 2503(a). “[F]or purposes of section 2503(a), ‘sudden and

intense passion’ encompasses emotions such as anger, rage, sudden

resentment, or terror that renders the mind incapable of reason.”

Commonwealth v. Arrington, 86 A.3d 831, 850 (Pa. 2014), quoting

Commonwealth v. Browdie, 671 A.2d 668 (Pa 1996).

Whether the provocation by the victim was sufficient to support
a heat of passion defense is determined by an objective test:
whether a reasonable man who was confronted with the
provoking events would become impassioned to the extent that
his mind was incapable of cool reflection. To reduce an

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intentional blow, stroke, or wounding resulting in death to
voluntary manslaughter, there must be sufficient cause of
provocation and a state of rage or passion without time to cool,
placing the [defendant] beyond the control of his reason, and
suddenly impelling him to the deed. If any of these be
wanting—if there be provocation without passion, or passion
without a sufficient cause of provocation, or there be time to
cool, and reason has resumed its sway, the killing will be
murder.

Commonwealth v. Hutchinson, 314-315 (Pa. 2011) (citations and internal

quotations omitted).

Our Supreme Court has made clear that “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.

Therefore, only where an instruction is requested and only if the evidence

supports ‘heat of passion’ voluntary manslaughter, is an instruction thereon

required.” Commonwealth v. Browdie, 671 A.2d 668, 674 (1996). See

also Commonwealth v. Solano, 906 A.2d 1180, 1190 (Pa. 2006) (“a trial

court should not instruct a jury on legal principles which bear no relationship

to the evidence presented at trial”).

Here, the trial court, rejecting Appellant’s request for a “heat of

passion” instruction, explained that there was not evidence to support a

theory that at the time of the killing Appellant was acting under an intense

passion. We find no abuse of discretion in the trial court’s rejection of

Appellant’s request for a “heat of passion” instruction.

“[A]bsent evidence of negligence or accident, a ‘heat of passion’

voluntary manslaughter charge is improper where the victim is not the

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person who provoked the defendant.” Commonwealth v. Ragan, 743 A.2d

390 (Pa. 1999) (citations omitted). The trial court explained:

[Appellant] relies on the fact that he and Updegraff got
into a verbal argument and Updegraff assaulted [Appellant] in
the residence and on the porch. The victim, however, was Mr.
Schmitt, not Updegraff. [Appellant] also was not trying to kill
Updegraff when he shot Schmitt.

The only acts or attributes that [Appellant] attributed to
Schmitt were that he had “crazy eyes” and he was running down
the driveway towards him. This is not sufficient provocation for
a reasonable man to become so impassioned that he was
incapable of cool reflection and would just start shooting at
Schmitt. Therefore, [Appellant] was not entitled to a heat of
passion instruction.

Trial Court Opinion, 6/9/14, at 18.

We agree with the trial court’s analysis that if the Appellant was

provoked, it would have been as a result of the actions not of the deceased

victim, but of Mr. Updegraff, who physically removed Appellant from his

residence, and then punched Appellant several times and scuffled with him

in the driveway. Furthermore, although Appellant testified at trial that he

only retrieved his gun after he heard either Mr. Updegraff or Mr. Schmitt

make a comment about a gun, leading Appellant to believe that they might

be armed, and that Mr. Schmitt “charged” at Appellant as though in an effort

to “tackle” him, we find no abuse of discretion in the trial court’s

determination that these circumstances did not rise to such a level as to

warrant a jury instruction that Appellant acted under a “sudden and intense

passion resulting from serious provocation” that rendered him incapable of

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reason, and his mind incapable of cool reflection. N.T., 9/16/13, at 67, 74.

Hutchinson, supra.

In his eighth issue, Appellant argues that the evidence presented by

the Commonwealth was insufficient to disprove self-defense. Appellant’s

Brief at 54-55. “When the defendant introduces evidence of self-defense,

the Commonwealth bears the burden of disproving such a defense beyond a

reasonable doubt. [T]he Commonwealth cannot sustain its burden of proof

solely on the factfinder's disbelief of the defendant's testimony.”

Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009). “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; (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 need only prove one of

these elements beyond a reasonable doubt to sufficiently disprove a self-

defense claim.” Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa.

Super. 2009); 18 Pa.C.S.A. § 505.

In the present case, the trial court, determining that the

Commonwealth had indeed met its burden of disproving Appellant’s self-

defense claim, explained:

Although [Appellant] asserted that he acted in self-
defense, the Commonwealth presented ample evidence to prove
otherwise. [Appellant] was not in imminent danger of death or
serious bodily injury when he shot the victim, he was not free

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from fault in provoking the difficulty which culminated in the
slaying and he violated a duty to retreat.

The evidence presented by the Commonwealth showed
that [Appellant] was told to leave the residence but he refused
to do so. An argument erupted between Updegraff and
[Appellant], and Updegraff grabbed [Appellant] and physically
removed him from the residence. Updegraff and Schmitt then
escorted [Appellant] partway down the driveway. Updegraff
stopped at the end of his van and Schmitt stopped halfway
between the end of the van and [Appellant’s] vehicle, which was
parked facing the wrong way on Franklin Street. [Appellant]
proceeded to his vehicle. It appeared that the altercation was
over and [Appellant] was going to leave. Instead of leaving,
however, [Appellant] grabbed his pistol and pulled the slide. He
admittedly ascertained the situation. He turned around towards
Schmitt and began firing shots and walking in Schmitt’s
direction.

The testimony of neighbors who heard the commotion and
looked outside supported Updegraff’s testimony that he stopped
at the end of his van and Schmitt stopped about halfway
between the van and [Appellant’s] vehicle. The neighbors’
testimony and the location of the shell casings also refuted
[Appellant’s] claims that Schmitt ran down the driveway towards
him before he began shooting and Schmitt charged him from a
three-point stance in the yard.

Schmitt suffered a contact gunshot wound to the neck and
a contact or near contact wound to the back of the head.
Updegraff testified that when the first of those shots hit Schmitt
he turned around toward Updegraff and fell to his knees, which
is supported by the location of the wounds on different sides of
Schmitt’s body.

Although [Appellant] claimed he heard someone say the
word gun when he was on the porch, the police arrived while
Updegraff and Radcliff were trying to get [Appellant’s] gun away
from him and they did not find any other gun.

[Appellant] argued that since a knife with the blade open
and exposed was found near the victim’s feet after the incident,
it supports his claim that the victim was trying to kill him and he
was acting in self-defense. [Appellant], though, never saw the

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victim wielding a knife, and Updegraff testified that he and
Schmitt had been working on a window in the house and the
knife could have fallen into the yard when they were working on
the window. Moreover, the jury instruction on self-defense
requires that the person against whom deadly force was used
either display or use a weapon readily or apparently capable of
lethal use. There was absolutely no evidence that Schmitt
displayed or used the knife in question.

In summary, the Commonwealth’s evidence showed
[Appellant] provoked or continued the difficulty by refusing to
leave Updegraff’s property, he did not reasonably believe he was
in imminent danger of death or serious bodily injury because he
never saw Schmitt in possession of a gun or the knife, and he
violated a duty to retreat by going after Schmitt instead of
driving away or running away after Updegraff and Schmitt
stopped in the driveway and [Appellant] safely reached his
vehicle. Therefore, the Commonwealth established that
[Appellant] did not act in self-defense and the evidence was
sufficient to support the jury’s verdicts.

Trial Court Opinion, 6/9/14, at 18-20.

Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, we find no error in the trial Court’s determination that the

testimony presented by the Commonwealth was sufficient to demonstrate

that Appellant provoked or continued the use of force, that Appellant did not

reasonably believe that he was in danger of death or serious bodily injury,

and that Appellant had a duty to retreat and the retreat was possible with

complete safety. As such, the evidence was sufficient to disprove

Appellant’s self-defense claim, and Appellant’s sufficiency challenge fails.

In his ninth issue, Appellant argues that the verdicts were against the

weight of the evidence.

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A motion for a new trial alleging that the verdict was
against the weight of the evidence is addressed to the discretion
of the trial court. An appellate court, therefore, reviews the
exercise of discretion, not the underlying question whether the
verdict is against the weight of the evidence. The factfinder is
free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. The trial court will
award a new trial only when the jury's verdict is so contrary to
the evidence as to shock one's sense of justice. In determining
whether this standard has been met, appellate review is limited
to whether the trial judge's discretion was properly exercised,
and relief will only be granted where the facts and inferences of
record disclose a palpable abuse of discretion. Thus, the trial
court's denial of a motion for a new trial based on a weight of
the evidence claim is the least assailable of its rulings.

Commonwealth v. Diggs, 949 A.2d 873, 879–80 (Pa. 2008) (internal

citations omitted).

In support of his weight of the evidence challenge, Appellant simply

repeats his earlier argument that “the evidence was insufficient to meet the

Commonwealth’s burden of disproving Appellant’s claim of self-defense.”

Appellant’s Brief at 56-57. Such an assertion constitutes a challenge not to

the weight of the evidence, but to the sufficiency of the evidence, which we

have already addressed. Moreover, Appellant provides no further discussion

or any relevant authority with regard to his weight of the evidence

challenge, thus precluding us from any effective analysis or review of this

claim. As a result, we find Appellant's weight of the evidence claim waived.

See Pa.R.A.P. 2119. See also Commonwealth v. Mercado, 649 A.2d

946, 954 (Pa. Super. 1994) (stating that failure to provide support for an

issue may result in waiver of the claim). To the extent, however, that

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Appellant is arguing that the trial court should have reweighed the evidence

to conclude that Appellant acted in self-defense, as explained above, we

have already concluded that Appellant did not satisfy the requisites for

justification because the evidence demonstrated that he continued the use of

force or could have retreated safely. Our determination that Appellant's

claim of self-defense was not supported effectively renders meritless his

challenge to the weight of the evidence.

In his tenth issue, Appellant argues that his sentence was manifestly

excessive. Specifically, Appellant argues that the trial court imposed an

excessive sentence without appropriately considering mitigating factors such

as Appellant’s expressions of remorse. Appellant has properly invoked this

Court’s jurisdiction, complying with the four-part test set forth in

Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011), which requires

an appellant challenging the discretionary aspects of his sentence to file a

timely post-sentence motion, comply with Pa.R.A.P. 2119(f), file a timely

notice of appeal, and set forth a substantial question. See Commonwealth

v. Gonzalez, 109 A.3d 711 (Pa. Super. 2015) (an excessive sentence claim

in conjunction with an assertion that the court did not consider mitigating

factors raises a substantial question). We therefore proceed to address the

merits of this claim.

Appellant argues that, at the sentencing hearing, he clearly expressed

remorse for his actions, specifically “ask[ing] Mr. Schmitt’s family for

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forgiveness” and stating that “[t]o know that [Mr. Schmitt] died because of

my actions ... I regret that.” N.T., 1/29/14, at 27. Appellant contends,

however, that when the trial court placed the reasons for its sentence on the

record, the trial court failed to consider his expressions of remorse, stating:

“I tend to agree with the prosecution that you haven’t demonstrated any

remorse.” Id. at 44. Additionally, Appellant argues that the trial court

failed to appropriately consider factors such as his efforts at rehabilitation

and his actions in assisting other inmates.

Our review of the record belies Appellant’s assertions that the trial

court failed to appropriately take mitigating factors into consideration. At

the sentencing hearing, the trial court, which had the benefit of a pre-

sentence investigation, heard statements from members of the victims’

families, as well as from Appellant’s family and Appellant himself, and in

rendering its sentence, considered the impact of the crimes on the victims,

Appellant’s age, employment history, educational attainment, family

circumstances, prior criminal record, rehabilitative needs, and efforts to

assist others in the prison community, as well as the particular

circumstances of the crimes and the impact on the community. N.T.,

1/29/14, at 41-48.

While the trial court noted that it did not believe Appellant’s

expressions of remorse, we have held that the sentencing court is “in the

best position to measure factors such as the nature of the crime, the

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defendant's character, and the defendant's display of remorse, defiance, or

indifference.” Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.

Super. 2003). Here, the trial court appropriately fulfilled its function, stating

that it was aware of Appellant’s positive traits, and even struggled to

reconcile the dichotomies of Appellant’s character, remarking: “I’m

somewhat perplexed. I have to take into account my observations of you.

I’m somewhat perplexed. By that I mean I’m confused because it’s almost

like I see two different people. There’s that one person who’s helping other

people out, the good Samaritan, who your employer, who other people are

coming to your ... assistance and they talk about what a good man you are;

and yet on the other hand, it conflicts with some of the things you do. It’s

almost like you have two different faces.” N.T., 1/29/14, at 45.

Upon careful review, it is clear that the trial court took seriously its

function to consider all relevant sentencing factors and to assess Appellant’s

character and demeanor in making its sentencing determination. As

explained above, we accord great weight to the decision of the trial court

because it is in the best position to review the appellant's character, defiance

or indifference, and the overall effect and nature of the crimes. Mouzon,

supra. We find no merit to Appellant’s contention that the sentencing court

considered the relevant sentencing factors in such a manner that a manifest

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abuse of discretion occurred. We therefore affirm Appellant's judgment of

sentence.4

Judgment of sentence affirmed.

P.J.E. Bender joins the Memorandum.

Judge Wecht concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2015

____________________________________________

4
In his brief, Appellant presents an additional two-page argument that the
trial court erred in preluding his motion to limit the testimony of his knife
expert, Michael Doane. Appellant’s Brief at 43-44. Although this issue was
raised in Appellants Pa.R.A.P. 1925(b) statement, it was not included in his
statement of questions presented on appeal. Therefore we find it waived.
See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.”).

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