J-A17006-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NICHOLAS ALEXANDER FORTUNA : : Appellant : No. 887 WDA 2024
Appeal from the Judgment of Sentence Entered January 24, 2024 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000652-2022
BEFORE: McLAUGHLIN, J., LANE, J., and BENDER, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED: September 26, 2025
Nicholas Alexander Fortuna appeals from the judgment of sentence
entered on his conviction for voluntary manslaughter. Fortuna argues that the
evidence was insufficient to disprove his self-defense claim, the court erred in
refusing to instruct the jury that he had no duty to retreat, and he preserved
these issues for review. We affirm.
The evidence presented at Fortuna’s jury trial established that four
people were present on the night of the killing: (1) Fortuna; (2) the victim,
Jonathan Blackburn; (3) the victim’s girlfriend, Ava Psoras; and (4) their
friend, Nathan Brison.
Psoras testified that the victim had a history of being violent when
intoxicated, and that he physically abused her. She stated the victim “had a
temper almost every time he was drinking.” N.T., Trial, 11/20/23, at 160.
Psoras also stated that the victim had been jailed for driving under the J-A17006-25
influence and public intoxication. She gave several examples of the victim’s
violence towards others and related that he had previously jumped on the
hood of her car until it dented, punched out the windshield of her car, and, on
separate occasions, ripped off her car door handles. Id. at 166, 175-78. Brison
similarly testified that the victim became violent when intoxicated, and that
he abused Psoras.
While Psoras was in a relationship with the victim, she was having an
affair with Fortuna. Fortuna sent text messages to Psoras, expressing his love
for her and his jealousy of the victim. Fortuna told Psoras that he wanted to
kill the victim for abusing her. Psoras dismissed these remarks as jokes.
Meanwhile, the victim told Psoras that if she left him, he would kill
himself. He also threatened to kill Fortuna and then himself. Psoras testified
that the victim had previously been admitted to a “psych ward,” and that he
told her it was because “he hit himself in the head with a claw hammer when
his last girlfriend tried to leave him.” N.T., Trial, 11/20/23, at 156.
Psoras testified to a particular incident in which she and Fortuna were
sitting in Fortuna’s truck while the victim tried to help pull her car out of the
snow. The victim became jealous of Fortuna, approached the truck, and
started screaming. The Commonwealth played a video recording of the
incident, taken with Fortuna’s phone, which showed the victim banging on the
window of the truck. To deter the victim, Fortuna took his firearm out of the
glovebox and put it on the dashboard.
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On the night of the killing, May 22, 2022, the victim, Psoras, Fortuna,
and Brison sat around a campfire atop a hill on the victim’s family’s rural
property. Fortuna, the victim, and Psoras all consumed alcohol. The victim
became intoxicated. The parties stipulated that the victim’s blood alcohol
content that night had reached 0.216, which was more than double the legal
limit. The victim began arguing with Psoras. Psoras testified that they were
arguing because the victim wanted her to spend the night, and she had
refused. Brison testified the victim accused Psoras of cheating.
Around 10:00 p.m., the victim stormed off. Brison testified that the
victim “kind of took off into the night. We had no idea where he went. He just
. . . went [in] the general direction of the road to go [back down to the trailer].”
N.T., Trial, 11/20/23, at 40.
Fortuna, Brison, and Psoras decided to leave. They got into Fortuna’s
pickup truck and drove down the hill to where Psoras’s car was parked, next
to a trailer home. Psoras got out of the truck and into her car. Fortuna and
Brison were still inside the truck. Fortuna was in the driver’s seat, and Brison
was in the passenger seat. The truck’s engine was running, the doors were
locked, and the windows were fully closed. It was dark, and the only lights
outside were the truck’s headlights.
The victim emerged from behind the trailer and tried to get into Psoras’s
car. She would not let him in. He screamed at her.
Brison could not see the victim, but heard Psoras screaming and then
yelling, “Get away.” N.T., Trial, 11/20/23, at 45. Fortuna instructed Brison to
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retrieve his firearm from the glove box and fire a warning shot. Brison refused
to fire the warning shot, but retrieved the firearm and placed it between them
on the front seat. The victim then appeared at Fortuna’s window and began
pounding on the glass, yelling profanities, and threatening to slash Fortuna’s
tires. Meanwhile, Psoras began reversing her vehicle away from the trailer so
that she could drive down the driveway.
The accounts of what happened next varied slightly. According to the
statement Fortuna made to the police a few hours after the incident,1 the
victim stopped pounding on the truck’s window and walked away toward the
rear of Fortuna’s truck, with his back to Fortuna. Fortuna rolled down his
window, fired a warning shot into the ground, and said, “Back off.” N.T.,
11/21/23, at 45-46; Commonwealth’s Ex. 26; see also Trial Ct. Op., filed
9/19/2024, at 5. The victim lunged, putting both of his hands through the
open window as Fortuna tried to roll it up, and reached for Fortuna. Fortuna
fired several shots at the victim. During the interview, Fortuna maintained
that he was afraid the victim was going to kill him and that he had shot the
victim to save his own life. Fortuna did not testify at trial.
In contrast, Brison did not testify that the victim ever left the window,
or that Fortuna rolled down the window, or that Fortuna fired a warning shot.
____________________________________________
1 Fortuna argues that we may not consider his police statement because it is
not included in the certified record. See Fortuna’s Br. at 30. However, the recording of his interview was introduced into evidence, played for the jury, and included with the trial exhibits. See N.T., 11/21/23, at 31-33; Commonwealth’s Ex. 26.
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According to Brison, while the victim was pounding on the closed window, he
broke through the glass. Brison testified that the victim “reached in” and
“grabbed [Fortuna] around the neck.” N.T., 11/20/23, at 53. The victim then
tried to choke Fortuna, and Fortuna “at some point reached and got the gun.
That is whenever he pulled around and fired.” Id. at 54.
Brison testified that he was scared that the victim had gained entry to
the vehicle. At the time Fortuna shot the victim, Brison had been deciding
whether he wanted to exit the vehicle and “run for it,” but was hesitating
because he feared that he might accidentally unlock the driver’s side door. Id.
at 84-85.
Psoras stated that once the victim approached Fortuna’s truck, she could
not see very well because of the truck’s headlights, and because she was busy
reversing her car to turn down the driveway. However, she did see the victim
“doing something in the window,” and saw that the victim was “in the truck.”
N.T., 11/20/23, at 124. Psoras’s vehicle was one or two car-lengths away
when she heard the shots.
The victim died at the scene. Fortuna and Brison drove down the
driveway, caught up with Psoras, and told her that the victim might have been
shot. Psoras drove back up the driveway, found the victim, and called 911.
Fortuna and Brison returned to the scene of the shooting, and Brison
attempted to administer first aid.
The first responders found the victim’s body in the tall grass next to the
driveway, with a boxcutter in one hand. In Fortuna’s police statement, he
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stated he had not seen any sort of knife or weapon in the victim’s hands during
the attack. Brison also testified that the victim had not been holding a weapon
when he was attacking Fortuna. Brison acknowledged that the victim had been
using a boxcutter earlier in the night to cut cables. Psoras testified that the
victim customarily carried a boxcutter, but that she had never seen him
threaten anyone with it.
The Commonwealth introduced evidence that the truck’s window had
been shattered while inside the door frame, i.e., after it had been rolled down.2
The Commonwealth also produced evidence that Fortuna fired two of the shots
through the door of the truck, in the area containing the window panel.
The medical evidence showed that the victim had been shot five times.
His hands were undamaged. The droplets of his blood which were splattered
on the outside of the truck door had not been smeared. No blood reached the
inside of the truck, or Fortuna’s clothing. Fortuna’s neck had no bruises or
scratch marks.
After the close of testimony, defense counsel asked the court to instruct
the jury that Fortuna had not had a duty to retreat because the victim had
been wielding a deadly weapon. See N.T., Trial, 11/22/23, at 52-54 (citing
Pennsylvania Suggested Standard Criminal Jury Instruction 9.501A). The
court denied the request. The court instructed the jury on the elements of first
2 There was no shattered glass on the ground outside the truck or on the floor
of the truck’s cabin. All the glass was found inside the door frame.
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and third-degree murder, voluntary manslaughter, and self-defense. See
N.T., Preliminary Instructions, 11/22/23, at 107-19.
The jury convicted Fortuna of voluntary manslaughter. The court
sentenced him to serve 54 to 120 months’ incarceration. This appeal followed.
Fortuna raises the following issues.
1. Was the issue of the requested Pa. SSJI (Crim) 9.501A waived?
2. Did the evidence presented at trial in support of the fifth condition under Pa. SSJI (Crim) 9.501A require that SSJI (Crim) 9.501A be read and that the jury be allowed to make a factual determination of whether the five Pa. SSJI (Crim) 9.501A conditions had been met, and thus the duty to retreat negated[?]
3. Was the issue of insufficiency of evidence to support a conviction of 18 Pa.C.S. § 2503 voluntary manslaughter waived?
4. Was the evidence insufficient to support a conviction of 18 Pa.C.S. § 2503 voluntary manslaughter?
Fortuna’s Br. at 5 (suggested answers omitted).
Fortuna first asserts that he preserved the issue of whether the court
erred in refusing his request to instruct the jury, under Suggested Standard
Criminal Jury Instruction 9.501A, that he had no duty to retreat from the
victim’s attack because the victim had been wielding a deadly weapon. Fortuna
points out that he requested the instruction in writing and the court noted an
exception on the record. In its Rule 1925(a) opinion, the court agreed that
Fortuna had preserved the issue at trial, but found he waived it by failing to
raise it in his Rule 1925(b) concise statement. Trial Ct. Op. at 9. The
Commonwealth does not argue waiver.
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Issues not included in a Rule 1925(b) concise statement are waived.
See Pa.R.A.P. 1925(b)(4)(vii). The statement must contain “sufficient detail
to identify the issue[s] to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii);
see also Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa.Super. 2016)
(“The Pa.R.A.P.1925(b) statement must be sufficiently concise and coherent
such that the trial court judge may be able to identify the issues to be raised
on appeal” (cleaned up)). “A Rule 1925(b) concise statement that is too vague
can result in waiver of issues on appeal.” Commonwealth v. Bonnett, 239
A.3d 1096, 1106 (Pa.Super. 2020). However, where the statement is
sufficiently specific such that we may readily distinguish the asserted errors,
we will not find waiver. See Mazurek v. Russell, 96 A.3d 372, 377 (Pa.Super.
2014); cf. Int. of M.G., 331 A.3d 703, 714 (Pa.Super. 2025) (finding issue
waived where it was too vague for trial court to identify and address), appeal
denied, No. 87 WAL 2025, 2025 WL 1376776 (Pa. May 13, 2025),
reconsideration denied (June 24, 2025). Furthermore, each issue “will be
deemed to include every subsidiary issue that was raised in the trial court[.]”
Pa.R.A.P. 1925(b)(4)(v).
Fortuna’s concise statement included three issues. The second of these
states as follows:
The jury should have been instructed that [Fortuna] did NOT have a duty to retreat. In the present case, viewing the evidence carefully, [Fortuna], in fact, had NO means to retreat.
Concise Statement, 8/20/24, at 3.
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We find that with the first of these two sentences (“The jury should have
been instructed that [Fortuna] did NOT have a duty to retreat.”), Fortuna
sufficiently raised the relevant issue for appeal. The court acknowledges that
during trial, Fortuna duly raised the issue of whether the court should instruct
the jury under Suggested Standard Criminal Jury Instruction 9.501A that he
had no duty to retreat. While the second sentence (“In the present case,
viewing the evidence carefully, [Fortuna], in fact, had NO means to retreat”),
when read in conjunction with the first, convolutes the meaning of the issue,
we do not agree that the entire issue, as stated, was too vague for the trial
court to discern, and decline to find waiver in this specific scenario.3
Regarding the merits of the issue, Fortuna claims the court erred in
refusing his request to instruct the jury that he had no duty to retreat because
the question of whether the victim had been wielding a deadly weapon during
his attack was a factual question that should have been decided by the jury.
He argues that the instruction is not predicated on whether the defendant saw
the victim holding the deadly weapon but is warranted so long as the evidence
would allow the jury to find that the victim had been displaying or using such
a weapon. He argues that here, the instruction was supported by the
testimony that the victim had been using a boxcutter earlier in the evening,
3 Regarding whether the court should have instructed the jury that Fortuna
had no means to retreat, the court found this issue waived because Fortuna did not raise it during trial. Trial Ct. Op. at 7. We need not address this issue, or its waiver, because Fortuna does not argue on appeal that the court should have instructed the jury that he had no means to retreat.
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had threatened to slash Fortuna’s tires, and was found holding the boxcutter
after he died.
A jury instruction must be supported by the trial evidence, and a criminal
defendant “may not claim entitlement to an instruction that has no basis in
the evidence presented during trial.” Commonwealth v. Taylor, 876 A.2d
916, 926 (Pa. 2005). The evidence supporting an instruction may come from
any source. Commonwealth v. Cannavo, 199 A.3d 1282, 1287 (Pa.Super.
2018). Whether the evidence supports a certain self-defense instruction is a
matter of law. Id.
The Suggested Standard Jury Instructions are not binding, but are
meant to guide the trial court in instructing the jury on the applicable legal
principles. Commonwealth v. Eichinger, 108 A.3d 821, 845 (Pa. 2014).
Suggested Standard Criminal Jury instruction 9.501A states, in relevant part,
“A defendant is not obligated to retreat from the place where he or she is
attacked if . . . [t]he person against whom the defendant uses force displays
or otherwise uses a firearm or any weapon readily or apparently capable of
lethal use.” Pa.S.S.J.I. (Crim.) 9.501.A(2)(c)(iii)(E).
This instruction was drawn from Section 505 of the Crimes Code, as
amended in 2011. See Pa.S.S.J.I. (Crim.) 9.501.A, Subcommittee Note. That
statute, titled “Use of force in self-protection,” codifies self-defense. It places
restrictions on the use of force in self-defense, including that the use of such
force is not justifiable if “the actor knows that he can avoid the necessity of
using such force with complete safety by retreating[.]” 18 Pa.C.S.A. §
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505(b)(2)(ii). However, the statute provides several exceptions to the duty to
retreat, including when the victim “displays or otherwise uses . . . any . . .
weapon readily or apparently capable of lethal use”:
(2.3) An actor who is not engaged in a criminal activity, who is not in illegal possession of a firearm and who is attacked in any place where the actor would have a duty to retreat under paragraph (2)(ii) has no duty to retreat and has the right to stand his ground and use force, including deadly force, if:
(i) the actor has a right to be in the place where he was attacked;
(ii) the actor believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping or sexual intercourse by force or threat; and
(iii) the person against whom the force is used displays or otherwise uses:
(A) a firearm or replica of a firearm as defined in 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms); or
(B) any other weapon readily or apparently capable of lethal use.
18 Pa.C.S.A. § 505(2.3) (emphasis added).4
Here, the trial court found the instruction unwarranted because there
was no evidence that the victim had “displayed” or “used” a weapon. Trial Ct.
Op. at 8. We agree that, as a matter of law, the trial evidence did not support
the instruction. Although a boxcutter was found in the victim’s hand after he
4 This subsection is “commonly referred to as a ‘stand your ground’ law[.]”
Commonwealth v. Childs, 142 A.3d 823, 831 n.11 (Pa. 2016); see also Commonwealth v. Smith, 97 A.3d 782, 787 n.2 (Pa.Super. 2014). It was included in the 2011 amendments to Section 505, intended to broaden the right to self-defense. Childs, 142 A.3d at 829 n.14.
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died, neither Brison, Psoras, nor Fortuna saw the victim display or use a
weapon before, during, or after the attack. See Commonwealth v. Fetters,
241 A.3d 359, 2020 WL 5870282 (Pa.Super. filed Oct. 1, 2020) (unpublished
memorandum) (finding “stand your ground” instruction unwarranted where
defendant conceded to police that victim did not have a weapon during the
altercation). We disagree with Fortuna’s argument that he need not have been
aware of the weapon. According to the text of the statute, it is the victim’s
“display” or “use” a deadly weapon that triggers the defendant’s right to stand
his ground.5
Fortuna next argues that he preserved the issue of whether the evidence
was sufficient to overcome his self-defense claim. The court found this issue
waived because Fortuna’s concise statement did not specify which element of
his manslaughter conviction was unsupported by sufficient evidence, although
the court considered a “generous interpretation” of Fortuna’s sufficiency claim
was that it went to the elements of his self-defense claim. Trial Ct. Op. at 3-
4.
When challenging the sufficiency of the evidence, the appellant’s concise
statement must specify which elements of the crimes for which he was
convicted were allegedly unsupported by sufficient evidence. ____________________________________________
5 Fortuna further asserts the court’s failure to give the instruction caused him
prejudice, because during deliberations, the jury asked the court, “If the defendant has the opportunity to leave and does not can it still be manslaughter[?]” See Fortuna’s Br. at 26. However, as we find the court did not err in refusing the instruction, we need not conduct a harmless error analysis.
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Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009). “Such
specificity is of particular importance in cases where . . . the [a]ppellent was
convicted of numerous crimes each of which contains numerous elements that
the Commonwealth must prove beyond a reasonable doubt.” Id. A blanket or
boilerplate statement declaring the evidence insufficient to convict the
defendant of multiple charges lacks sufficient specificity to preserve the issue
for review. Bonnett, 239 A.3d at 1106; see also Commonwealth v. Rivera,
238 A.3d 482, 496 (Pa.Super. 2020) (finding sufficiency issue waived where
appellant was convicted of multiple offenses containing multiple elements but
appellant’s concise statement included only a combined boilerplate sufficiency
and weight claim); Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super.
2015) (finding sufficiency issue waived where appellant’s concise statement
“simply declared, in boilerplate fashion, that the evidence was insufficient to
support his conviction”).
The “First Issue” of Fortuna’s concise statement begins, “The first issue
is that there was insufficient evidence to support a conviction of voluntary
manslaughter, 18 Pa.C.S. § 2503(b).” Concise Statement at 1. Fortuna then
proceeds to compare the facts of his case to those of Commonwealth v.
Johnston, 263 A. 2d 376 (Pa. 1970), another self-defense case, including
whether the victim threatened a third party, whether the victim was wielding
a weapon, whether the defendant fired a warning shot, and whether the
defendant had the means to retreat. Fortuna’s concise statement asserts that
the evidence in his case suggested he had “a right to use deadly force in self[-
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]defense,” because the victim was wielding a boxcutter and charged at
Fortuna in the face of a warning shot, Fortuna did not provoke the incident,
and Fortuna had no means to retreat. Concise Statement at 1-3.
We decline to find waiver. Fortuna was convicted of only one crime:
voluntary manslaughter. While his concise statement is far from a perfect
example of brevity, it adequately explains that Fortuna’s challenge is to the
evidence disproving each element of his self-defense claim. This was not a
vague, barebones or boilerplate challenge to the sufficiency of the evidence,
so lacking in specificity as to constitute waiver.
We apply the following standard of review to a sufficiency challenge:
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 resolved 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. . . . Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Jones, 271 A.3d 452, 457-58 (Pa.Super. 2021) (citation
omitted) (alternation in original).
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As stated above, Section 505 of the Crimes Code codifies the
justification defense of self-defense, which provides a complete defense to
criminal liability. See 18 Pa.C.S.A. § 502. Section 505 states,
(a) Use of force justifiable for protection of the person.-- The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force.--
...
(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating, except the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be.
18 Pa.C.S.A. § 505(a), (b)(2).
Thus, a successful self-defense claim must assert:
1) 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 to prevent such harm;
2) the defendant did not provoke the threat that resulted in the slaying; and
3) the defendant did not violate a duty to retreat.
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Jones, 271 A.3d at 458. Once the defendant has claimed self-defense, “the
burden is on the Commonwealth to disprove the self-defense claim beyond a
reasonable doubt by proving that at least one of those three elements is
absent.” Id.
However, if the Commonwealth fails to disprove the second and third
elements, but successfully disproves that the defendant reasonably believed
that it was necessary to use deadly force, “the defendant may be found guilty
only of voluntary manslaughter under the defense of imperfect self-defense.”
Id.; see also Commonwealth v. Rivera, 108 A.3d 779, 787 n.2 (Pa. 2014).
The crime of “unreasonable belief” voluntary manslaughter is codified in
Section 2503 of the Crimes Code, which states,
(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.A. § 2503(b).6
Fortuna argues the Commonwealth failed to disprove the elements of
his self-defense claim beyond a reasonable doubt. However, the jury convicted
Fortuna of unreasonable belief voluntary manslaughter. Therefore, the jury
found, in Fortuna’s favor, that the evidence did not disprove beyond a
6 There is no contention that Fortuna was convicted under Section 2503(a),
which provides for a voluntary manslaughter conviction when the defendant was “acting under a sudden and intense passion resulting from serious provocation.” 18 Pa.C.S.A. § 2503(a).
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reasonable doubt that he had not provoked the victim’s attack, or that he had
not violated a duty to retreat. See Commonwealth v. Sepulveda, 55 A.3d
1108, 1124 (Pa. 2012) (stating that to succeed on an imperfect self-defense
claim and receive a conviction for unreasonable belief voluntary manslaughter,
all other principles of justification under Section 505 must be met);
Commonwealth v. Truong, 36 A.3d 592, 599 (Pa.Super. 2012). We
therefore need not address these latter elements of Fortuna’s self-defense
claim. The only remaining question is whether the Commonwealth’s evidence
was sufficient to disprove that Fortuna reasonably believed that his use of
deadly force was immediately necessary to protect himself against death or
serious bodily injury.
Fortuna asserts that the evidence did not disprove that his belief was
reasonable because the victim, who had a history of violence when drinking
and was armed with the boxcutter he had been using earlier in the evening,
suddenly emerged from the darkness and began banging on Fortuna’s
window, shouting profanities, and threatening to slash Fortuna’s tires. After
hearing a warning shot, the victim broke through the truck’s window and
began strangling Fortuna. Fortuna claims that had he not shot the victim, he
“would probably now be dead.” Fortuna’s Br. at 33.
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) (quoting
Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012)).
Although the jury is not required to believe the defendant’s self-defense
claim, the Commonwealth may not rely solely on the jury’s disbelief of the
defendant’s testimony, but most present some other evidence that the
defendant did not reasonably believe that the use of deadly force was
necessary. Id. at 788. The Commonwealth may provide evidence on “[a]
number of factors, including whether complainant was armed, any actual
physical contact, size and strength disparities between the parties, prior
dealings between the parties, threatening or menacing actions on the part of
complainant, and general circumstances surrounding the incident[.]” Id. at
788. The Commonwealth may also disprove the self-defense claim by proving
the defendant “used more force than reasonably necessary[.]” Id. (citation
omitted).
When viewed in the light most favorable to the Commonwealth, the
evidence was sufficient to disprove that Fortuna subjectively believed he
needed to use deadly force to save himself from death or serious bodily injury,
or that his belief and resulting use of force was reasonable. The
Commonwealth presented evidence that Fortuna was romantically involved
with the victim’s girlfriend and had stated a desire to kill the victim. While the
victim was frequently violent and abusive, he had not verbally threatened to
hurt Fortuna, and to Fortuna’s knowledge, the victim did not attempt to use
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any weapon during the attack. By Fortuna’s own account, the victim did not
shatter the truck’s window prior to attacking Fortuna.7 Rather, Fortuna chose
to roll it down and fire a warning shot during the victim’s retreat. Although the
victim reached for Fortuna through the truck’s window, he did not injure his
own hands or Fortuna’s neck. When Fortuna shot the victim, the victim was
at such a distance that no blood spatter got on the outside of the truck, and
no blood reached Fortuna’s clothes or the inside of the truck.
This evidence was sufficient for the jury to find, beyond a reasonable
doubt, that Fortuna’s alleged belief that he needed to shoot the victim five
times, from his position inside the truck, either was not a bona fide belief
subjectively held by Fortuna, or was, objectively, greater force than was
reasonably necessary. See Commonwealth v. Kennedy, 332 A.3d 133, 143
(Pa.Super. 2025) (finding Commonwealth presented sufficient evidence to
disprove self-defense where defendant used more force than necessary).
Judgment of sentence affirmed.
7 While this point differed from Brison’s testimony, the fact that the window
had been rolled down was corroborated by the evidence regarding the window glass, bullet trajectory, and lack of injuries on the victim’s hands. Regardless, we view the evidence in the light most favorable to the Commonwealth.
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DATE: 09/26/2025
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