J-S36038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TONEY ROBERT JONES :
:
Appellant : No. 1766 WDA 2019
Appeal from the Judgment of Sentence Entered November 6, 2019
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002025-2018
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 21, 2020
Toney Robert Jones (Jones) appeals the judgment of sentence entered
by the Court of Common Pleas of Fayette County (trial court). Following a
jury trial, Jones was found guilty of murder in the first degree1 and sentenced
to life in prison. In this appeal, Jones asserts four errors by the trial court
concerning the denial of jury instructions and related restrictions on the scope
of his closing argument. As we find that none of those grounds have merit,
the judgment of sentence is affirmed.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2502(a).
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I.
The facts relevant to this appeal are not in dispute. At about 10:00 a.m.
on July 26, 2018, Jones left his apartment. See Trial Transcript, 11/9/2019,
at p. 56. He had just finished smoking a synthetic marijuana cigarette, which
made him feel “paranoid, nervous, [and] scared” for about ten to fifteen
minutes. Id. at 56.
While outside, Jones looked across his driveway to the parking lot,
where he noticed that the car belonging to his friend, Tyler Stickle, had a
broken window. Jones called Stickle’s cousin, Jonathan Core, to relay what
had happened and they came to the parking lot shortly thereafter. They
reported the incident and the police arrived about five to ten minutes after
that call. The police departed after documenting the damage to the vehicle.
Jared Ashburn appeared in the area after the police had left and,
according to Jones, he became aggressive, using profanity and “challenging
everyone to a fight.” Id. In response, Jones went back to his apartment to
get his gun. Jones testified that he intended to scare Ashburn off of the
property by shooting him in the shoulder. Although Jones testified that at one
point he “saw something black in [Ashburn’s] hand,” id. at 60, he never
observed Ashburn holding a weapon:
Q: Did you see any gun on him that day?
A: No, Sir.
Id. at p. 63.
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When Jones aimed his gun at Ashburn and pulled the trigger, it misfired.
Jones then turned his back on Ashburn to adjust the gun’s cylinder, making
sure a bullet was in the chamber. Eyewitnesses heard Ashburn telling Jones,
“I don’t play with guns.” Trial Transcript, 11/4/2019, at p. 37.
Ashburn walked toward Jones from a few feet away and this time, when
Jones turned around, pointed the weapon and pulled the trigger, it went off,
fatally striking Ashburn in the chest. Ashburn was not armed and the object
he was holding in his hand was a cellular phone. Id. at pp. 50, 62.
Jones immediately went back inside his apartment to change his clothes
and hide the gun. See Trial Transcript, 11/9/2019, at p. 68. Police arrived
to investigate the shooting, and during their interview with Jones, he initially
denied owning a weapon, shooting Ashburn or being involved with his death.2
At approximately 2 p.m. that day, Jones was identified as a suspect and
held in police custody. An officer who interviewed him testified that Jones
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2 Jones went outside five minutes after smoking a synthetic marijuana
cigarette at approximately 10:00 a.m. See Trial Transcript, 11/9/2019, at p.
77. Once Jones, Stickle and Core called the police, it took at least five minutes
for them to arrive, and two to three minutes for them to finish their incident
report. Id. at p. 78. The initial altercation between Jones and Ashburn lasted
at least five minutes. Id. It took Jones another two minutes to go back to his
apartment and come back with his gun. Id. at p. 79. Based on Jones’
estimates, at least 20 minutes had elapsed between the time when he finished
the synthetic marijuana cigarette and the moment he shot Ashburn. The
timestamped video recording of the incident indicates that Ashburn was shot
at 11:08 a.m. on the day in question, which would have been over an hour
after Jones finished smoking synthetic marijuana.
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showed no signs of intoxication or impairment. See Trial Transcript,
11/6/2019, at p. 30. During the interview, Jones repeatedly stated that he
did not shoot Ashburn. Id. at p. 52. He believed, incorrectly, that the
surrounding surveillance cameras were inoperable. Once he realized that the
entire incident was recorded, Jones admitted his role in Ashburn’s death.
At trial, Jones requested jury instructions on voluntary manslaughter,
voluntary intoxication and the use of deadly force in self-defense. The trial
court denied those instructions, ruling that there was no evidence to support
them. The jury found Jones guilty of murder, and he was sentenced as
outlined above. He now presents four issues in his appellate brief:
1. Whether the trial court committed an abuse of discretion by
denying defense counsel’s request for a[n unreasonable belief]
voluntary manslaughter jury instruction.
2. Whether the trial court committed an abuse of discretion by not
allowing defense counsel to argue in regard to voluntary
manslaughter during closing arguments.
3. Whether the trial court committed an abuse of discretion by
denying defense counsel’s request for a voluntary intoxication jury
instruction.
4. Whether the trial court committed an abuse of discretion by
denying defense counsel’s request for a justification use of deadly
force in self-defense jury instruction.
Appellant’s Brief, at 4 (re-numbered, suggested answers omitted).3
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3All four of Jones’ claims are reviewed under an abuse of discretion standard.
See Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).
The “trial court has wide discretion in fashioning jury instructions,” and it is
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II.
A.
The first two issues Jones raises may be resolved together because they
both relate to the “unreasonable belief” component of voluntary
manslaughter, which is of a lesser degree than the offense of murder. The
trial court denied Jones’ request for this instruction and then restricted defense
counsel from presenting the theory in closing arguments.
The “unreasonable belief” defense4 requires a showing that the
defendant believed a killing was justified, though he was unreasonable in that
belief:
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(a).
A jury instruction on voluntary manslaughter must be given only “where
the offense has been made an issue in the case and where the evidence would
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“not required to give every charge that is requested by the parties.” Id.; see
also Commonwealth v. Baez, 720 A.2d 711, 729 (Pa. 1998) (reviewing
restriction on defense counsel’s closing argument under an abuse of discretion
standard).
4 On appeal, Jones does not discuss the trial court’s denial of the alternative
“heat of passion” theory of voluntary manslaughter. See 18 Pa.C.S.
§ 2503(b). Accordingly, we focus only on whether Jones was entitled to an
unreasonable belief instruction.
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reasonably support such a verdict.” Commonwealth v. Thomas, 717 A.2d
468, 478 (Pa. 1998); Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa.
1996) (“[W]e hold 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.”); see also Commonwealth v.
Taylor, 876 A.2d 916, 925 (Pa. 2005) (a trial court should not instruct a jury
on legal principles which bear no relationship to the evidence that was
presented at trial).
In this case, the trial court did not abuse its discretion in denying a
voluntary manslaughter instruction because there was no evidence that could
have supported a jury verdict to that effect. No evidence showed that Jones
was acting under a belief that shooting Ashburn was justified.
Commonwealth v. Carter, 466 A.2d 1328, 1329 (Pa. 1983) (“Because the
evidence here could not have reasonably supported a finding of unreasonable
belief in the necessity of using deadly force in self-defense, appellant was not
entitled to a jury instruction on it.”).
Jones only briefly alluded to the fact that Ashburn appeared to have a
black object in his hand just before Jones opened fire, but he testified that he
never saw Ashburn holding a weapon. Moreover, Jones did not explain how
he could have been reasonably provoked into using lethal force against
Ashburn. The absence of such provocation is especially clear from the fact
that after his gun misfired, Jones turned his back on Ashburn to adjust the
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gun’s cylinder. Thus, the complete lack of urgency on the part of Jones and
the lack of any apparent threat from Ashburn, precluded the possibility that
Jones reasonably feared for his life at the time of the shooting.
Instructing the jury on that imperfect defense would have been
improper because the evidence did not support the instruction and would only
have served to confuse the jury. See id. at 1332 (“Further, invitations to jury
confusion or irrationality are unnecessary. Such invitations would be offered
here if the jury had been instructed on ‘unreasonable belief’ voluntary
manslaughter when the proof at trial did not rationally support a verdict on
it.”).
Additionally, since the trial court did not err in denying this instruction,
it follows that the trial court also did not err in precluding defense counsel
from presenting the imperfect defense to the jury. The evidence would not
have supported a verdict of voluntary manslaughter, and the trial court
properly limited the scope of the closing argument in light of potential verdicts
that the evidence arguably supported.
B.
As with voluntary manslaughter, the imperfect defense of voluntary
intoxication operates to reduce the offense of premeditated murder to a lower
degree. See Commonwealth v. Reiff, 413 A.2d 672, 674 (Pa. 1980)
(quoting 18 Pa.C.S. § 308 of the Crime Code, which codifies the voluntary
intoxication defense and explains that it may be offered when relevant “to
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reduce murder from a higher degree to a lower degree of murder.”);
Commonwealth v. Padilla, 80 A.3d 1238, 1263-64 (Pa. 2013) (same).
A jury instruction regarding diminished capacity due to voluntary
intoxication is proper only when the record contains evidence that at the
moment a crime was committed, the accused was intoxicated to the point of
losing his faculties or sensibilities. See Commonwealth v. Marshall, 633
A.2d 1100, 1104–05 (Pa. 1993). Evidence that the accused ingested alcohol
or another intoxicating substance, without more, does not warrant a voluntary
intoxication instruction. See Commonwealth v. Marinelli, 690 A.2d 203,
220-21 (Pa. 1997) (holding that the trial court did not err by refusing to give
a voluntary intoxication charge because, even though there was testimony
that appellant had consumed alcohol prior to the killing, no evidence showed
appellant was incapable of forming intent to kill).
From our review of the record, it is apparent that the trial court did not
err in denying a voluntary intoxication instruction in this case. Although Jones
testified that he smoked synthetic marijuana on the morning of the shooting,
he also stated that it would only affect him for 15 to 20 minutes. His own
testimony established that much more than that period of time had elapsed
between the point in time when he finished smoking the cigarette and the
moment that he shot Ashburn.
Additionally, other than Jones’ testimony that he smoked synthetic
marijuana, there is no other evidence in the record at all suggesting that he
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was intoxicated to the point that he lost his faculties or sensibilities. A moment
after shooting Ashburn, Jones had the presence of mind to hide his gun,
change his clothes and come up with a false story to give to the police. Thus,
the evidence did not meet the standard necessary to entitle Jones to the
instruction, and the trial court did not abuse its discretion in denying it.
C.
Finally, we consider Jones’ claim that the trial court erred in refusing to
grant his request for a self-defense instruction.
Under the Crimes Code, a claim of self-defense requires evidence of the
following three elements: “(a) [that the defendant] reasonably believed that
he was in imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such harm; (b)
that the defendant was free from fault in provoking the difficulty which
culminated in the slaying; and (c) that the [defendant] did not violate any
duty to retreat." Commonwealth v. Samuel, 590 A.2d 1245, 1247-48 (Pa.
1991); see also 18 Pa.C.S. § 505 (Crimes Code codification of use of force
defense).
A person generally has a “duty to retreat” when not in a dwelling,
prohibiting the use of deadly force if he “knows he can avoid the necessity of
using such force with complete safety by retreating.” Commonwealth v.
Serge, 837 A.2d 1255, 1266-67 (Pa. Super. 2003).
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“While there is no burden on the defendant to prove a claim of self-
defense, it is nevertheless required that before such a defense is properly an
issue at trial, there must be some evidence, from whatever source, to justify
such a finding.” Commonwealth v. Brown, 421 A.2d 660, 662 (Pa. 1980)
(quoting Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977)).
At trial in this case, there was no evidence supporting any of the three
elements of a self-defense claim. Jones could not have reasonably believed
that deadly force was necessary to thwart imminent death or serious bodily
injury because Jones had a gun and Ashburn did not. Neither Jones nor any
other witness testified that Ashburn posed such a threat at the moment he
was shot.
There is no evidence showing that Ashburn was the initial aggressor or
that Jones played no part in the confrontation, especially since Jones willingly
escalated the dispute after having returned from the safety of his apartment.
Jones also had a duty to retreat and, in fact, had successfully retreated
before returning from his apartment to Ashburn’s location with a gun. This
demonstrated as a matter of law that Jones knew his use of lethal force could
have been avoided. Thus, a self-defense instruction was not warranted.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2020
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