J-A22032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ULYSSES RODRIGUEZ,
Appellant No. 2163 EDA 2016
Appeal from the Judgment of Sentence January 15, 2016
in the Court of Common Pleas of Lehigh County
Criminal Division at No.: CP-39-CR-0000679-2014
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 18, 2017
Appellant, Ulysses Rodriguez, appeals from the judgment of sentence
imposed after his jury conviction of voluntary manslaughter. We affirm.
We take the following factual and procedural background from the trial
court’s June 16, 2016 opinion and our independent review of the certified
record. At trial in this matter, Michael Frichtman testified that, on January 26,
2013, at approximately midnight, he and the victim were walking home after
purchasing cigarettes at a 7-Eleven on Union Avenue in Bethlehem,
Pennsylvania, when Appellant approached them and asked if they wanted to
buy marijuana. (See N.T. Trial Vol. II, 8/19/15, at 61). When the men
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* Retired Senior Judge assigned to the Superior Court.
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declined and asked for Appellant’s phone number, he aggressively stated,
“[Y]ou’re not taking my fucking number if you ain’t going to buy anything
now.” (Id. at 63; see id. at 64). Appellant then walked away to his SUV
parked nearby, retrieved marijuana and a handgun from the vehicle, and
returned to the men, shoving the bag of drugs in the victim’s face, and asking
him, “How does this smell?” (Id. at 67; see id. at 95).
In response, the victim removed his jacket and told Appellant he wanted
to fight. (See id. at 69). Appellant then pulled the handgun from his
waistband, pointed it at the two men, and argued with the victim about
fighting. (See id. at 72, 74-77). Appellant started walking away ahead of,
but in the same direction as Frichtman and the victim, and kept arguing with
the victim, eventually firing two shots in his general direction. (See id. at
102). When the victim and Appellant were directly in front of each other
outside the club, Appellant shot the victim twice in the chest, got into his
vehicle, and drove away. (See id. at 78-81). During this entire episode, both
the victim and Frichtman were unarmed, and Frichtman repeatedly suggested
that they should go home. (See id. at 73-74, 77-78, 98-99, 106).
Witness, Erica Hampton, described the events similarly. She testified
that she heard two men arguing and overheard one of them say, “[s]o you
gonna shoot me, shoot me.” (N.T. Trial Vol. I, 8/18/15, at 58). She stated
that Appellant was backing up as the victim walked toward him. (See id. at
61-62). Appellant then fired “at least three” shots toward the victim. (Id. at
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61). The victim then charged at Appellant and the men “tussled.” (Id. at 64;
see id. at 63). She heard “a couple more shots” and observed Appellant run
away. (Id. at 64; see id. at 65).
Appellant testified in pertinent part that, after he put the marijuana in
the men’s faces, “[He] was able to retreat back to the club. [He] had an open
path to the club.” (N.T. Trial Vol. III, 8/20/15, at 51). He stated that, after
this preliminary interaction, he took two steps backwards, put his gun away,
and walked toward that establishment. (See id.). Just feet from the door,
instead of entering the building, Appellant shot “warning shots” at the victim
and Frichtman. (Id. at 58, 129). He stated that the victim then ran at him,
bear hugged him, and a skirmish began. (See id. at 64). Appellant testified
that he then intentionally shot the victim. (See id. at 131-32).
The forensic pathologist testified that the victim was shot twice in the
chest. (See N.T. Trial Vol. II, at 13). The first gunshot wound showed that
the gun was against Appellant’s skin when it was discharged. (See id. at 19,
23). The distance of the firearm when the second shot was fired was between
“[n]ear contact to within several inches[.]” (Id. at 34; see id. at 23). The
wounds were seven inches apart from each other. (See id. at 35).
On August 21, 2015, Appellant was convicted of voluntary
manslaughter. On January 15, 2016, with the benefit of a presentence
investigation report (PSI), the trial court sentenced him to not less than ten
nor more than twenty years’ imprisonment, which was outside the aggravated
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range of the sentencing guidelines, but within statutory limits. The court
denied Appellant’s post-sentence motions for judgment of acquittal and to
modify sentence on June 16, 2016. On July 8, 2016, Appellant timely
appealed.1
Appellant raises three issues for this Court’s review:
1. Whether the trial court erred in failing to conclude that [he] is
entitled to judgment of acquittal because the [C]ommonwealth’s
evidence was not sufficient to disprove [Appellant’s] self-defense
claim beyond a reasonable doubt?
2. Whether the trial court erred in failing to conclude that the
maximum possible sentence given by the court was unreasonable
and excessive given the number of mitigating factors, including
[Appellant’s] minimal prior record, and the lack of aggravating
factors?
3. Whether the trial court erred in failing to conclude that
[Appellant] is entitled to a new trial by reason of the court’s failure
to instruct the jury on involuntary manslaughter as a possible
offense?
(Appellant’s Brief, at 3).
In his first issue, Appellant argues that the trial court erred in denying
his motion for judgment of acquittal where the Commonwealth’s evidence was
insufficient to disprove his self-defense claim beyond a reasonable doubt.
(See id. at 12-18). This issue lacks merit.
Our standard of review of a trial court’s denial of a motion for judgment
of acquittal is well-settled:
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1Pursuant to the trial court’s order, Appellant filed a timely concise statement
of errors complained of on appeal on August 9, 2016, and, on September 12,
2016, the trial court filed an opinion. See Pa.R.A.P. 1925.
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A motion for judgment of acquittal challenges the sufficiency
of the evidence to sustain a conviction on a particular charge, and
is granted only in cases in which the Commonwealth has failed to
carry its burden regarding that charge.
Commonwealth v. Packer, 146 A.3d 1281, 1284, affirmed, 2017 WL
3600581 (Pa. filed Aug. 22, 2017) (citation omitted).
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be established by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of a crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact while
passing on the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Id. at 1285 (citation omitted).
Pursuant to section 2503(a)(1) of the Crimes Code, “[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 . . . the individual killed[.]” 18 Pa.C.S.A. §
2503(a)(1). “In order to procure a conviction for voluntary manslaughter[,]
the Commonwealth must prove, beyond a reasonable doubt, that the homicide
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was not justified. A killing that occurs under the mistaken belief that it was
justified constitutes voluntary manslaughter.” Commonwealth v. Weston,
749 A.2d 458, 462 (Pa. 2000) (citations omitted). Consequently, courts have
commonly referred to unreasonable belief voluntary manslaughter as
“imperfect self-defense,” because the “self-defense claim is imperfect in only
one respect—an unreasonable rather than a reasonable belief that deadly
force was required to save the actor’s life.” Commonwealth v. Tilley, 595
A.2d 575, 582 (Pa. 1991).
If the defendant properly raises self-defense under Section 505 of
the Pennsylvania Crimes Code, the burden is on the
Commonwealth to prove beyond a reasonable doubt that the
defendant’s act was not justifiable self-defense.
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; or 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 must establish only one of these three
elements beyond a reasonable doubt to insulate its case from a
self-defense challenge to the evidence. The Commonwealth can
negate a self-defense claim if it proves the defendant did not
reasonably believe he was in imminent danger of death or great
bodily injury and it was necessary to use deadly force to save
himself from that danger.
The requirement of reasonable belief encompasses
two aspects, one subjective and one objective. First, the
defendant must have acted out of an honest, bona fide
belief that he was in imminent danger, which involves
consideration of the defendant’s subjective state of mind.
Second, the defendant’s belief that he needed to defend
himself with deadly force, if it existed, must be reasonable
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in light of the facts as they appeared to the defendant, a
consideration that involves an objective analysis.
Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citations
and quotation marks omitted).
Further,
To claim self-defense, the defendant must be free from fault in
provoking or escalating the altercation that led to the offense,
before the defendant can be excused from using deadly force.
Likewise, the Commonwealth can negate a self-defense claim by
proving the defendant used more force than reasonably necessary
to protect against death or serious bodily injury.
Id. at 788 (citations, emphasis, and quotation marks omitted).
In this case, Appellant’s actions initiated and then escalated the
encounter. He first approached the victim and Frichtman to try to sell them
marijuana, and then, when they declined, he went to his vehicle, not to drive
away, but to retrieve a gun and marijuana to shove in the victim’s face. When
the victim reacted by saying he wanted to fight, Appellant, in spite of his clear
path by which to retreat, escalated the situation even further by shooting
warning shots at the men. When the unarmed victim reacted by bear hugging
him, he put a gun against the man’s chest and pulled the trigger, shooting
him twice, “us[ing] more force than was reasonably necessary to protect
against death or serious bodily injury.” Id. (citation and quotation marks
omitted). Viewing this evidence in the light most favorable to the
Commonwealth as verdict winner, we conclude that it sustained its burden of
disproving self-defense and establishing voluntary manslaughter where
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Appellant had an unjustified belief that shooting the unarmed victim in the
chest was necessary to defend himself. See Packer, supra at 1285. The
trial court properly denied Appellant’s motion for judgment of acquittal. See
id. at 1284. Appellant’s first issue lacks merit.
In his second issue, Appellant challenges the discretionary aspects of
his sentence. (See Appellant’s Brief, at 18-24). Specifically, he maintains
that his sentence is excessive in light of mitigating factors. (See id.).
Appellant’s issue lacks merit.
[A] challenge [to the discretionary aspects of a sentence] is
not automatically reviewable as of right. Before we review such a
claim on the merits, we engage in a four part analysis to
determine:
(1) whether the appeal is timely; (2) whether
Appellant preserved his issue; (3) whether Appellant’s
brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence [see Pa.R.A.P.
2119(f)]; and (4) whether the concise statement
raises a substantial question that the sentence is
appropriate under the sentencing code. . . .
We decide the substantive merit of the claims only if each
requirement is satisfied.
Commonwealth v. Tejada, 161 A.3d 313, 320 (Pa. Super. 2017) (citations
omitted).
In this case, Appellant preserved his issue in a post-sentence motion,
timely appealed, and his brief includes a concise statement of the reasons
relied upon for appeal. (See Appellant’s Post-Sentence Motions, 1/22/16, at
unnumbered pages 3-7; Notice of Appeal, 7/08/16; Appellant’s Brief, at 18-
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19). Also, his issue raises a substantial question. See Commonwealth v.
Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (“[A]n excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.”) (citation omitted).
Accordingly, we will review the merits of Appellant’s sentencing claim.
Our standard of review of this matter is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (citation
omitted). “Our Supreme Court has determined that where the trial court is
informed by a [PSI], it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed.” Commonwealth v.
Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (citation omitted).
Here, the record reflects that the court did not abuse its discretion in
sentencing Appellant. It reviewed letters from members of the community,
and heard testimony from Appellant, his mother, and the victim’s mother.
(See N.T. Sentencing, 1/15/16, at 5, 43-73). It considered the expert
testimony of forensic psychologist Dr. Frank Dattilio, who conducted an
evaluation of Appellant. (See id. at 6-29). Based on an extensive two-day
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interview, psychological testing, questioning of Appellant’s mother, and a
review of all documentation and reports relative to this case and Appellant’s
history, Dr. Dattilio concluded Appellant is narcissistic, paranoid, impulsive,
and overly defensive. (See id. at 9-10, 13-14). He testified that this explains
“a lot of his difficulty with reading situations and overreacting[,]” and that “he
is prone to misread and misinterpret the actions of others.” (Id. at 16-17).
Dr. Datillio stated that these tendencies could only be overcome after “several
years in intensive treatment[.]” (Id. at 19).
Additionally, the court put all the reasons for its decision on the record.
(See Trial Court Opinion, 6/16/16, at 1, 8; see also N.T. Sentencing, at 101-
03, 105-06). It explained:
. . . [T]he reasons for deviating from the sentencing guidelines are
as set forth in this sheet that the District Attorney has handed to
me . . . . The impact of the crime [on] the victim and the victim’s
family . . . . The impact of [the] crime on the community;
[Appellant’s] lack of insight or remorse; [and] [Appellant’s]
numerous prison misconducts . . . listed in the back of the PSI. .
..
* * *
. . . [Appellant’s] history and penchant for fighting and disorderly
behavior. [Appellant’s] future dangerousness, likelihood to
reoffend and poor prognosis for rehabilitation as evidenced by his
crime, his lack of insight, his prison misconducts, and his
psychological evaluation. [Appellant’s] involvement in drug
dealing at the time of the crime. . . .
* * *
. . . [P]ossession of an illegal firearm which he used in the crime
and carried during his drug dealing activities. [Appellant’s] flight
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and concealment after the crime. . . . Endangerment of others
during the crime. . . .
* * *
. . . The decision to kill formed over a relatively lengthy time
horizon and [was] not a split second decision. The victim’s
family[’s] recommendation. The arresting officer’s
recommendation, and the more egregious nature of this crime
when compared to the typical voluntary manslaughter. . . . I think
what you are talking about is an excessive force . . . where the
[victim was] not engaged in illegal activity and otherwise didn’t
initiate the confrontation. . . .
(N.T. Sentencing, at 101-03, 105-06).
Based on the foregoing, and the fact that the court possessed a PSI,
and therefore is presumed to have considered all sentencing factors and
mitigating circumstances, we conclude that it properly exercised its discretion
in sentencing Appellant. See Johnson, supra at 826; Downing, supra at
794. Appellant’s second issue does not merit relief.
In his third claim, Appellant maintains that the trial court erred in failing
to give the involuntary manslaughter jury instruction. (See Appellant’s Brief,
at 24-28). This issue is waived and would lack merit.
[Our Supreme Court held] that[,] under Criminal Procedural
Rules 603 and 647(B), the mere submission and subsequent
denial of proposed points for charge that are inconsistent with or
omitted from the instructions actually given will not suffice to
preserve an issue, absent a specific objection or exception to the
charge or the trial court’s ruling respecting the points.
Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005) (footnote
omitted).
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Here, although Appellant requested a charge on involuntary
manslaughter, the trial court declined, stating that it “didn’t see any evidence
which would warrant [such] an instruction . . . .” (N.T. Trial Vol. III, at 158).
Appellant did not object. (See id.). Therefore, this issue is waived. See
Pressley, supra at 225. Moreover, it would not merit relief.
“[O]ur standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court’s
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation
omitted). An “[involuntary] manslaughter charge shall be given only when
requested, where the offense has been made an issue in the case, and the
trial evidence reasonably would support such a verdict.” Commonwealth v.
Patton, 936 A.2d 1170, 1177 (Pa. Super. 2007) (citations omitted). “A
person is guilty of involuntary manslaughter when as a direct result of the
doing of an unlawful act in a reckless or grossly negligent manner . . . he
causes the death of another person.” 18 Pa.C.S.A. § 2504(a).
In the case sub judice, there was no evidence to support a claim that
Appellant’s shooting of the unarmed victim was either reckless or grossly
negligent. He initiated and escalated the incident, and then intentionally shot
the unarmed victim in the chest at very close range. Such a shooting rises
above the mere recklessness or accident required to support an involuntary
manslaughter charge and, his mere assertion that he did not intend to kill the
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victim, does not render his actions involuntary manslaughter. See
Commonwealth v. Briggs, 12 A.3d 291, 307 (Pa. 2011), cert. denied, 565
U.S. 889 (2011) (concluding defendant’s shooting of victims in chest and
abdomen at close range supported first degree murder charge even where
defendant declared he did not intend to kill victims); Commonwealth v.
Murray, 83 A.3d 137, 151 (Pa. 2013) (“[A] specific intent to kill may be
inferred by the use of a deadly weapon upon a vital organ of the body.”)
(citation omitted).
Based on the foregoing, we conclude that the trial court did not err in
denying Appellant’s request for a jury instruction on the crime of involuntary
manslaughter where “the trial evidence [could not reasonably] support such
a verdict.” Patton, supra at 1177; see Yale, supra at 983.2 Appellant’s
third issue lacks merit.
Judgment of sentence affirmed.
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2 Moreover, we are not legally persuaded by Appellant’s reliance on
Commonwealth v. McCloskey, 656 A.2d 1369 (Pa. Super. 1995), appeal
denied, 668 A.2d 1126 (Pa. 1995). (See Appellant’s Brief, at 27). In
McCloskey, the defendant recklessly fired the gun up the stairs without
aiming at the victim, who had initiated the confrontation. See McCloskey,
supra at 1374 (defendant testifying that he did not aim gun and that, “for all
I knew, [the] bullet could have gone anywhere.”). Here, Appellant initiated
and escalated the incident, and then intentionally shot the unarmed victim in
the chest, at very close range. Therefore, we do not find McCloskey legally
persuasive.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/17
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Com. v. Rodriguez, U.
Combined Opinion