Com. v. Jones, J.

J-S82006-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JESSE JONES,

Appellant No. 1678 WDA 2016

Appeal from the Judgment of Sentence Entered September 16, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000959-2016

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 12, 2018

Appellant, Jesse Jones, appeals from the September 16, 2016

judgment of sentence of an aggregate term of 10 to 20 years’ imprisonment,

followed by 1 year of probation, imposed after he was convicted, following a

non-jury trial, of voluntary manslaughter, persons not to possess a firearm,

and tampering with physical evidence. After careful review, we affirm.

The trial court summarized the facts of Appellant’s case, as follows:

On September 23, 2015, Cameron Johnson (hereinafter
"Victim") was driving a dark-colored Buick Lucerne down Juniper
Drive in the Mooncrest Housing Plan in Moon Township,
Pennsylvania. (T. p. 139). At that same time, [Appellant] was
walking down Juniper Drive wearing a black hooded sweatshirt
and a black baseball hat. (T. p. 88). Victim pulled his vehicle
over in front of [Appellant], put the vehicle in park, and began to
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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exit the vehicle. (T. p. 141, Video). As Victim began to exit his
vehicle, [Appellant] extended his arm and discharged the firearm
he was carrying at Victim five times. (T. p. 141, Video). Only a
few seconds had passed between Victim[’s] opening the car door
and [Appellant’s] discharging the firearm. (T. p. 141, Video).
[Appellant] shot Victim in the upper back as he was exiting the
vehicle, and continued to shoot at Victim while he attempted to
get away, as is evidenced by the shattered back windshield of
Victim’s vehicle. (T. p. 74). Victim’s attempt to get away was
not successful, as he had been fatally shot and crashed his
vehicle into a tree. (T. p. 71). Victim was pronounced dead at
the scene and transported to the Allegheny County Medical
Examiner’s Office for an autopsy. (T. p. 193-94). According to
the stipulation reached by the parties, Victim died from a
penetrating gunshot wound to the trunk. (T. p. 195). The fatal
gunshot wound entered through the left upper back of Victim,
penetrated the lower left lung, descending aorta, lower lobe of
right lung, right diaphragm, and the right lobe of the liver. (T.
pp. 194-95). This wound caused Victim to bleed to death
internally. (T. p. 195).

Jerome Smith, a resident of 197 Juniper Drive, saw
[Appellant] running up Juniper Drive with a small silver handgun
in his hand, immediately after he heard the shots fired. (T. p.
89). [Appellant] was wearing a black hooded sweatshirt and a
black baseball cap. (T. p. 89). [Appellant] then immediately ran
between the houses on Juniper Drive, through the woods and
onto Oak Drive where he resided. (T. pp. 48; 141, Video).
Another resident of Oak Drive, Daniel Forbus, testified that he
was outside in his front yard when he heard what sounded to be
a small caliber gun discharge multiple times. (T. p. 38). He
then witnessed [Appellant] run out of the woods and stop near
the stone wall behind the property. (T. p. 43). When
[Appellant] came out of the woods, he was not wearing a hat.
(T. p. 52). [Appellant] briefly spoke to Mr. Forbus, stating, “he
was messing with me,” then went into his house. (T. p. 42).
Five minutes later, [Appellant] got into the back seat of Sarah
Linger’s vehicle, laid down, and left. (T. p. 48).

Police arrived on the scene within seconds of the shooting,
as they were already there serving an arrest warrant on another
resident of Juniper Drive. (T. pp. 57-63; 68-79). Moon
Township Officer Justin Blair testified that he was approaching
the front of 203 Juniper Drive when he heard a radio call that a
car crashed into a tree at the end of Juniper Drive near the bend

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to Oak Drive. (T. p. 71). When he approached the vehicle, he
found Victim unresponsive in the driver seat. (T. p. 72). He
pulled Victim out of the car, and ran to get the AED machine and
mask. (T. p. 73). When he returned, Officer Kavanshansky was
performing life-saving measures, but was unsuccessful. (T. p.
73). The vehicle had a shattered back windshield. (T. p. 74).
There [were] no weapons found on Victim or in the vehicle. (T.
p. 79).

Jason Clark of the Allegheny County Medical Examiner’s
Office, Mobile Crime Unit testified that a Jimenez firearm was
recovered from the stone wall behind 267 Oak Drive, and a black
Cav baseball hat and black hooded Russell sweatshirt were
recovered in a trash can behind 265 Oak Drive. (T. pp. 14-15).
The Jimenez firearm was tested by Raymond Everett of the
Allegheny County Medical Examiner’s Office, Firearms Division.
(T. p. 184, 188). The Jimenez firearm was found to be in good
operating condition. (T. p. 188). He test fired the gun and
compared them to the five (5) spent .25 caliber cartridge cases
that had been recovered at the location where [Appellant]
discharged the firearm. (T. p. 190). All were matches to the
Jimenez firearm recovered from the brick wall. (T. p. 190). He
also compared the test-fired bullets with the bullet recovered
from Victim, but could not say to a reasonable degree of
scientific certainty that the bullets matched. (T. p. 191-92). He
testified that the bullets had the same class and characteristics
(i.e.[,] [] 6 lands and grooves with a right hand twist), but they
“did not have a sufficient amount of agreement or disagreement
to render an identification or elimination.” (T. p. 192).

[Appellant] was ultimately apprehended in Charleston,
West Virginia. (T. p. 198). The Allegheny County Sheriff’s
Office, along with the U.S. Marshall’s Task Force, followed Sarah
Linger on November 21, 2015 to the address where [Appellant]
was found. (T. p. 199). After being taken into custody on
November 23, 2015, [Appellant] was lodged in a West Virginia
Correctional Facility. (T. p. 203). There, [Appellant] spoke with
Allegheny County Police Homicide Detective Tom Foley, who
presented [Appellant] with his Miranda[1] Rights Waiver Form.
(T. p. 205). [Appellant] waived his Miranda Rights and made a
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1 Miranda v. Arizona, 86 S.Ct. 1602 (1966).

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verbal statement to police. He stated that he began staying in
the Mooncrest Housing Development around July 4, 2015. (T. p.
207). While he was there, he began a serious relationship with
Sarah Linger. (T. p. 207). Ms. Linger had “one or two children”
to Victim. (T. p. 208). [Appellant] stated that Ms. Linger felt
that Victim was upset about her relationship with [Appellant] and
that Victim began to convey threats to Ms. Linger concerning
[Appellant]. (T. p. 208). [Appellant] had never met or seen
Victim prior to September 23, 2015. (T. p. 208). Due to the
threats, [Appellant] purchased a gun off the streets two or three
weeks prior to the shooting. (T. p. 208).

On the date of the shooting, [Appellant] stated that Ms.
Linger was supposed to meet with Victim to exchange custody of
their son. (T. p. 209). [Appellant] was not with Ms. Linger at
that time, and stayed home. (T. p. 209). [Appellant] stated
that “at some point he was walking down the road and he saw a
few people that he knew.” (T. p. 209). He stated that Victim’s
car came up in “a fast fashion or a hurried fashion and pulled up
on the curb in front of him.” (T. p. 209). He stated that a black
male got out of the car and said “something to him to the effect
of ‘meet your maker.’” (T. p. 209). At that point, [Appellant]
pulled the gun out of his hooded sweatshirt and started shooting
toward the car. (T. p. 210). [Appellant] then ran in the
opposite direction. (T. p. 210). [Appellant] admitted to hiding
the gun in the brick wall and his clothing in a garbage can. (T.
p. 211). [Appellant] stated that Ms. Linger drove him to a
friend’s house in Coraopolis where he stayed for a short period
before fleeing to West Virginia. (T. p. 211).

Counsel for [Appellant] did not challenge the evidence as
to the person not to possess charge. (T. p. 6).

In an effort to provide this [c]ourt with evidence
concerning [Appellant’s] state of mind on the date in question,
[Appellant] presented the testimony of Sarah Linger. Ms. Linger
has two children with Victim and is the girlfriend of [Appellant].
(T. p. 225). She also drove [Appellant] from his house on the
date of the shooting and maintained contact after he fled the
jurisdiction. (T. p. 199). Evidence was presented as to text
message conversations that were between Ms. Linger and Victim
where he made menacing statements concerning [Appellant].
(T. pp. 234-241). As of the date in question, there had been no
threatening text messages for a period of approximately two

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weeks. Neither Ms. Linger nor [Appellant] contacted the police
in an effort to obtain any protection.

Trial Court Opinion (TCO), 9/20/17, at 3-7.

Based on these facts, the trial court convicted Appellant of the above-

stated offenses. On September 16, 2016, Appellant was sentenced to 6½ to

13 years’ incarceration for voluntary manslaughter, 3½ to 7 years’

incarceration for persons not to possess a firearm, and 1 year of probation

for tampering with physical evidence. Appellant filed a timely post-sentence

motion, which the court denied. He then filed a timely notice of appeal, and

he also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

statement. The court filed its Rule 1925(a) opinion on September 20, 2017.

Herein, Appellant presents three issues for our review:

I. Was the evidence insufficient to sustain the verdict of
voluntary manslaughter when the Commonwealth failed to
prove beyond a reasonable doubt that [Appellant] was not
justified in shooting the victim when [Appellant]
reasonably believed that he was in danger of death or
serious bodily harm and that he was protecting himself
under the facts and circumstances known to him at the
time of the incident?

II. Was the verdict contrary to the weight of the evidence
where, when viewed in its entirety, the evidence was not
consistent with voluntary manslaughter since the evidence
clearly showed the victim’s conduct was antagonistic,
hostile and vindictive, with a history of ill-will against
[Appellant,] and that the victim intended to inflict serious
bodily injury, if not death, upon [Appellant]?

III. Was the sentence imposed manifestly excessive,
unreasonable, and an abuse of discretion when the court
focused exclusively on the seriousness of the offense to
the exclusion of other pertinent factors?

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Appellant’s Brief at 9 (unnecessary capitalization and emphasis omitted).

Appellant first challenges the sufficiency of the evidence to sustain his

voluntary manslaughter conviction. To begin, we note our standard of

review:

In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

Appellant was convicted of voluntary manslaughter, defined as follows:

(b) Unreasonable belief killing justifiable.--A person who
intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the
circumstances to be such that, if they existed, would justify the
killing under Chapter 5 of this title (relating to general principles
of justification), but his belief is unreasonable.

18 Pa.C.S. § 2503(b).

Appellant contends on appeal that the Commonwealth failed to

disprove his claim that he acted in self-defense when he shot the victim. As

our Supreme Court has explained,

[w]hen there is evidence presented at trial that a killing was
committed in self-defense, the burden is upon the
Commonwealth to prove beyond a reasonable doubt that the
defendant was not acting in self-defense. In order to meet that

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burden, the Commonwealth must establish one of the following
elements beyond a reasonable doubt:

(1) that the defendant did not reasonably believe it was
immediately necessary to kill in order to protect himself
against death or serious bodily harm, or that the defendant
used more force than was necessary or reasonably
appeared to him to be necessary to save himself from
death, great bodily harm or the commission of a felony,

(2) that the defendant provoked the use of force, or

(3) that the defendant had a duty to retreat and that
retreat was possible with complete safety.

See 18 Pa.C.S.[] [§] 505(b)(2)[;] Commonwealth v. Eberle,
474 Pa. 548, 379 A.2d 90 (1977)[.] As this Court stated in
Eberle, “(e)stablishment beyond a reasonable doubt of any one
of these three elements will insulate the conviction from a
defense challenge to the sufficiency of the evidence in a case
where self-protection is at issue.” Id. at … 379 A.2d at 93.

Commonwealth v. Fisher, 420 A.2d 427, 429 (Pa. 1980) (some internal

citations omitted).

In this case, Appellant contends that the Commonwealth failed to

establish any of the three, above-stated elements. Specifically, he maintains

that the evidence clearly showed that he did not provoke the victim, and

that he could not have retreated with complete safety. He also argues that

the evidence proved that it was reasonable for him to believe that shooting

the victim was immediately necessary for his own protection. In this regard,

Appellant stresses that the victim had threatened him in the weeks before

the incident and, on the day of the shooting, the victim “drove his car onto

the sidewalk where [Appellant] was walking[,]” and then said to Appellant,

“meet your maker.” Appellant’s Brief at 20. Appellant maintains that this

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conduct by the victim demonstrated that his shooting the victim was justified

and, thus, he should have been acquitted of the homicide charge.

Having carefully reviewed the record in this case, we disagree with

Appellant. In particular, the video recording of the incident shows that the

victim stopped his vehicle partially on the sidewalk several feet in front of

Appellant and, as the victim began to exit his vehicle, Appellant immediately

raised his arm and shot the victim. As the trial court noted, the victim was

still “basically … an occupant of the vehicle when [Appellant] fired [the] first

shot[,]” and the victim at that point had not “confronted [Appellant] with

deadly force.” N.T. Trial, 6/15/16, at 328. Indeed, the entire interaction

between Appellant and the victim lasted only a second or two before

Appellant fired his weapon. The totality of this evidence was sufficient for

the trial court, as the fact-finder, to conclude, beyond a reasonable doubt,

that Appellant used greater force than that which was immediately

necessary to defend himself against the victim, thus disproving his claim of

self-defense. See Commonwealth v. Smith, 710 A.2d 1218, 1220 (Pa.

Super. 1998) (“The Commonwealth can meet its burden of negating the

defendant’s self[-]defense claim by proving that the defendant used greater

force than appeared to be necessary.”).

Next, Appellant avers that the trial court’s verdict was contrary to the

weight of the evidence.

A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial

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court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury’s verdict is so contrary to the evidence that it shocks
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.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

Appellant essentially claims that the verdict was contrary to the weight

of the evidence because the trial court failed to give proper weight to the

threatening conduct of the victim prior to, and on the day of, the shooting.

However, as the court explains, it did consider the victim’s hostile conduct.

See TCO at 8 (reiterating that the victim “previously made menacing

comments concerning [Appellant,]” and that the “[v]ictim aggressively

pulled his car over in front [of Appellant] as he was walking down the

street”). Nevertheless, the court concludes that Appellant “was, at no point,

confronted with deadly force” before he shot the victim. Id. Indeed, the

court stresses that the victim “had not completely exited his vehicle before

[Appellant] began shooting at him.” Id. Accordingly, the trial court found

that Appellant’s “use of deadly force was not justified.” Id. We ascertain no

abuse of discretion in that decision.

Lastly, Appellant raises various claims concerning the discretionary

aspects of his sentence.

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Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
question exists “only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Here, our review of the record confirms that the majority of

Appellant’s sentencing claims were not raised in his post-sentence motion.

Specifically, Appellant did not raise in that motion his assertions that (1) the

sentencing guideline ranges utilized by the court were incorrect, see

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Appellant’s Brief at 27; (2) the “sentence imposed is inconsistent with the

gravity of the offense, the protection of the public[,] and the rehabilitative

needs of [Appellant,]” id. at 28; (3) the court improperly considered, as

aggravating circumstances, factors that were already accounted for by the

sentencing guidelines, id. at 29; and that (4) the court improperly focused

solely on the gravity of the offense and did not adequately consider, or give

proper weight to, Appellant’s “particular characteristics” or certain mitigating

circumstances of his case, such as Appellant’s remorse, that he only

purchased a gun because he feared for his life, and that he had been

working and financially supporting Ms. Linger and her children prior to the

shooting, id. at 30. Because none of these specific arguments were raised

in Appellant’s post-sentence motion, and he also fails to point to where they

were noted in the record of the sentencing hearing, these claims are not

preserved for our review. See Mann, supra.

Instead, the only sentencing argument that we will review is

Appellant’s assertion that the court imposed an excessive sentence because

it failed to give adequate weight to the mitigating fact that he believed he

was acting in self-defense when he shot the victim. See Appellant’s Brief at

29. Appellant preserved this issue in his post-sentence motion. See Post-

Sentence Motion, 9/20/16, at 3 (unnumbered). We also will consider this

argument as raising a substantial question for our review. See

Commonwealth v. Perry, 883 A.2d 599, 612 (Pa. Super. 2005) (finding

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that an excessive sentence claim, in conjunction with an assertion that the

court did not consider mitigating factors, raised a substantial question).

Nevertheless, Appellant is not entitled to sentencing relief based on

this argument. Preliminarily, we note that Appellant’s belief that he was

acting in self-defense did mitigate his sentence, by lessening his overall

criminal culpability from murder to manslaughter. Therefore, we reject his

argument that the trial court abused its discretion by not further reducing

his sentence based on that belief.

Additionally, the trial court explains in its opinion why other factors in

this case called for a lengthier prison term. For instance, the court points

out that Appellant was illegally carrying a firearm “for at least two to three

weeks prior to this incident.” See TCO at 10. Additionally, the court

stresses that,

[a] significant factor to this [c]ourt was the timing of
[Appellant’s] previous incarceration. [Appellant] was a convicted
felon for crimes committed in West Virginia where he received a
nine (9) year prison sentence. While this [c]ourt did not
consider [Appellant’s] alleged discretions while he was
incarcerated, this [c]ourt cannot help but to consider that
[Appellant] was released from confinement on July 4, 2015; [he]
purchased a firearm approximately two months later; and [he]
killed Victim on September 23, 2015. [Appellant] does not
appear to be amenable to rehabilitation, as he returned to a life
of crime shortly after his release from confinement. For these
reasons, this [c]ourt’s aggregate sentence of ten (10) to twenty
(20) years was not, on its face, manifestly excessive and is
consistent with the overall principles of the sentencing code.

Id. Given this explanation by the trial court, we discern no abuse of

discretion in the standard-range sentence it imposed.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/12/2018

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