Com. v. Johnson, R., II

• Court: Superior Court of Pennsylvania
• Decided: October 29, 2020
• Docket: 1888 MDA 2019
• Status: Unpublished

Opinion

J-S44013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT LEE JOHNSON, II : : Appellant : No. 1888 MDA 2019

Appeal from the Judgment of Sentence Entered October 21, 2019 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0004399-2018

BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 29, 2020

Appellant, Robert Lee Johnson, II, appeals from the judgment of

sentence of life imprisonment without the possibility of parole, imposed after

a jury convicted him of first-degree murder. Appellant challenges the

sufficiency of the evidence to prove that he acted with the specific intent to

kill, and he also argues that the jury’s verdict was contrary to the weight of

the evidence. We affirm.

The trial court set forth a thorough summary of the evidence presented

at Appellant’s trial, which we adopt herein. See Trial Court Opinion (TCO),

1/16/20, at 1-7. Briefly, Appellant’s conviction stemmed from evidence that

he twice shot at the victim in this case, with one bullet going through the

victim’s arm and into his heart, thereby killing him. Following a multi-day jury

trial, Appellant was convicted of first-degree murder. On October 21, 2019,

he was sentenced to life incarceration without the possibility of parole. J-S44013-20

Appellant filed a timely post-sentence motion, which the court denied.

He then filed a timely notice of appeal,1 and he also timely complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed its Rule 1925(a) opinion on January

16, 2020. Herein, Appellant states two issues for our review:

1. Did the trial court abuse its discretion in denying … Appellant’s [post-sentence] motion for judgment of acquittal challenging the sufficiency of the evidence and guilty verdict on the charge of [m]urder in the [f]irst [d]egree?

2. Did the trial court abuse its discretion in denying … Appellant’s [post-sentence] motion for judgment of acquittal challenging the weight of the evidence and guilty verdict on the charge of [m]urder in the [f]irst [d]egree?

Appellant’s Brief at 4.

Appellant argues that the evidence was insufficient to prove that he

committed first-degree murder, and that the jury’s verdict was contrary to the

weight of the evidence, because the Commonwealth failed to prove that he

acted with specific intent to kill the victim. He insists that, instead, the

evidence proved only the offense of voluntary manslaughter, as the killing

“was a product of passion-provocation and imperfect justification.” Id. at 8.

In assessing Appellant’s arguments, we have reviewed the certified

record, the briefs of the parties, and the applicable law. Additionally, we have ____________________________________________

1 In his notice of appeal, Appellant incorrectly stated that he is appealing from the court’s November 6, 2019 order denying his post-sentence motion. “In a criminal action, [an] appeal properly lies from the judgment of sentence[,] made final by the denial of post-sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted). We have corrected the caption accordingly.

-2- J-S44013-20

considered the thorough opinion of the Honorable Maria Musti Cook of the

Court of Common Pleas of York County. We conclude that Judge Musti Cook’s

well-reasoned opinion accurately disposes of the issues presented by

Appellant. See TCO at 9-24. Accordingly, we adopt her opinion as our own

and affirm Appellant’s judgment of sentence for the reasons set forth therein.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/29/2020

-3- Circulated 10/09/2020 10:06 AM

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF NO. CP-67-CR-4399-2018 PENNSYLVANIA

V.

ROBERT LEE JOHNSON II Defendant/Appellant c -0

STATEMENT OF LOWER COURT PURSUANT TO PA.R.A.P. 1925(a)

9711.- AND NOW, this /3 of January, 2020, upon receipt of a notice

that an appeal has been filed in this matter, and in consideration of the

Statement of Matters Complained of on Appeal, filed on behalf of Robert

Lee Johnson II ("Defendant"), by and through his attorney, Korey Leslie,

Esquire, the undersigned files this statement pursuant to PA.R.A.P. 1925(a).

Additionally, the reasons for this Court's denial of Defendant's Post-

Sentence Motion can be found herein. Factual and Relevant Procedural History:

Defendant was charged with the following offenses: murder of the

first degree under 18 PA. CONS. STAT. § 2502(a), murder of the third degree

under 18 PA. CONS. STAT. § 2502(c), and voluntary manslaughter under 18

PA. CONS. STAT. § 2503.1 Attorney Richard Robinson, Esquire, represented

Defendant during the trial proceedings. Attorneys John M. Hamme, Esquire,

and Jennifer Tobias, Esquire, appeared on the behalf of the Commonwealth.

Around 5:00 PM on May 22, 2018, LA Rasul Truvillion ("Victim")

was walking down the street to go to Jo-Ja-Ma's, a restaurant, to get chicken

for dinner. N.T. Trial, 09/10/2019, at 74-76. Around 5:30 PM or 5:40 PM

that day, York City Police were dispatched to the area of Smyser Street and

Penn Street, York, PA for a shooting that had occurred. Id. at 139, 160.

Upon police officers arriving on scene, they found Victim, laying on Smyser

Street. Id. Victim had a gunshot wound through the right shoulder area that

penetrated through his body. Id. at 139-40. There were no weapons

The Commonwealth made an oral motion for amending the information to include a charge of voluntary manslaughter during the charge conference. Parties agreed to this amendment, and this Court granted it. recovered at the crime scene. Id. at 140, 146. Victim was pronounced dead

approximately an hour later in York Hospital. Eyewitnesses identified

Defendant Robert Lee Johnson II as the shooter. N.T. Trial, 09/10/2019, at

105, 121.

Defendant and Victim shared a common sister, Leeasha Johnson. N.T.

Trial, 09/11/2019, at 263. Leeasha Johnson acknowledged at trial that

Defendant and Victim had a verbal disagreement at a club, "a couple weeks"

before Victim was shot. Id. at 263-64. After the argument, about a week

and a half prior to the shooting, Defendant called Leeasha Johnson, saying

he was going to kill Victim. Id. at 264. Defendant at trial admitted that he

shot and killed Victim. Id. at 299.

Witnesses Wendell Johnston and Mary Schroeder testified at trial for

the Commonwealth. They were both in the same home at the time of

incident-Mary Schroeder on the first floor and Wendell Johnston on the

second floor when they heard the first gunshot. Both witnesses identified

Defendant as the shooter. N.T. Trial, 09/10/2019, at 105, 121.

3 According to Wendell Johnston, he first observed Defendant sitting

alone in the driver's side of a gold Lexus vehicle, with the door open, in the

parking lot at St. Paul Street and Penn Street. Id. at 102,111. When Wendell

Johnston heard the first gunshot, the shot was so loud that he instantly look

out the window and saw Defendant leaning across the car. Id. at 105.

Approximately five or ten seconds later, Wendell Johnston observed

Defendant shoot a second time, laying across the car and aiming towards

Smyser Street. Id. at 105-07. Wendell Johnston emphasized that it was not

a random shot-"[Defendant] had a point," "[he] was trying to hit what he

was shooting at." Id. at 107. When Defendant took off on foot fleeing the

area, Defendant was holding a handgun in his left hand. Id. at 109.

Additionally, the jury heard the testimony of Mary Schroeder. She

testified that she heard a gunshot while laying on her sofa on the first floor

of her and Wendell Johnston's home. Id. at 120, Mary Schroeder testified

that the gunshot was "very close," so she proceeded to the window and saw

Defendant standing outside of the driver's side of a car. Id at 120-21,123-

24. Mary Schroeder indicated that, in no more than ten seconds after the first

gunshot, a second shot was fired by Defendant, "over the top of the car," 4 aiming towards the Smyser Street. Id. at 121-24. Mary Schroeder also

noticed that, Defendant ran down St. Paul Street after his gunshots. Id. at

125.

Video surveillance was obtained from this area which captures that

Defendant running from the scene seconds after shots were fired with his left

hand in his front left pants pocket. Id. at 151. In addition, the pocket

appeared to have a "large object" inside it. Id. at 151-52.

Van Jackson, Defendant's uncle, also testified for the Commonwealth.

He indicated that Defendant, dressed in woman's clothing, arrived at his

house at about 2:30 or 3:00 in the morning following the incident. Id. at 242.

When the uncle let Defendant in to his home, Defendant said "he just wanted

to see the news." Id. The news indicated that Defendant was a wanted

person for a homicide. Id. at 243.

In addition, the Commonwealth offered Doctor Rameen Starling -

Roney as an expert in forensic pathology during the trial. Id. The autopsy

established that Victim died from a bullet wound to the heart. Doctor Roney

confirmed that the bullet that killed Victim entered into his right arm, exited

5 the right arm, and entered into his heart, killing him in the street. N.T. Trial,

09/11/2019, at 255-56. Doctor Roney concluded that the cause of death in

this case was "a gunshot wound of the right arm and torso." Id. at 259.

Evidence and testimony at trial confirmed that the casings found in

the parking lot where Defendant was seen, matched the bullet that was found

in Victim's heart, and they came from the same weapon. Detective

Christopher Perry testified that two spent shell casings and a live

undischarged cartridge were recovered from the crime scene. N.T. Trial,

09/10/2019, at 173. There was a spent shell casing to the rear of the gold

Lexus vehicle, a spent shell casing on top of the vehicle, and a live round

underneath the vehicle. Id. at 173-76, 207-11. The Commonwealth and

Defense agreed that both spent shell casings were discharged by the same

firearm. Id. at 222, 226. Parties further stipulated that the bullet-recovered

from Victim's heart in the autopsy-is the same caliber class as the

discharged cartridge cases and the undischarged cartridge. Id. at 223-24,

226. Moreover, Detective Perry testified that, the undischarged cartridge

could be "tapped and racked" out from the same gun, during Defendant's

shooting, due to misfeed or jam. Id. at 221.

6 Additionally, there was a blue Chevy Tahoe with a flat tire on North

Penn Street in the crime scene. Id. at 190, 192. The driver side rear tire was

flattened by a bullet. Id. However, there was no bullet recovered from that

tire. Id. at 232. No gunshot residue testing was done in this case. Id.

vl Following a jury trial on September 9, 2019, through September 11,

2019, the jury unanimously convicted Defendant of first -degree murder. On

October 21, 2019, a sentencing proceeding was held. Defendant was

sentenced to life imprisonment without the possibility of parole.

Attorney Korey Leslie, Esquire, was appointed by this Court to

represent Defendant for the purpose of filing an appeal. On October 30, 2019,

Defendant, by and through Attorney Leslie, filed a motion for post-sentence

relief, which this Court denied by Order on November 6, 2019.

On November 18, 2019, Defendant, by and through his counsel, filed

a notice of appeal to the Superior Court. On November 25, 2019, this Court

issued an order directing Defendant to file a concise statement pursuant to

PA.R.A.P. 1925(b). On December 13, 2019, Attorney Leslie, on behalf of Defendant, filed a statement of errors complained of on appeal, alleging the

following:

The [Defendant] seeks to have his judgment set aside based on the sufficiency, or lack thereof, of the evidence presented at trial to sustain a conviction for Murder in the First Degree. Specifically, the [Defendant] avers that the Commonwealth failed to prove the element of "specific intent to kill." The [Defendant] argues that the evidence and testimony presented at trial negates the malice and premeditation required to establish a specific intent to kill. The [Defendant] avers that the evidence and testimony presented at trial established the killing of [Victim] was a product of passion -provocation and imperfect justification. Alternatively, the [Defendant] argues his conviction should be set aside and a new trial granted because the verdict was so contrary to the evidence presented at trial as to shock one's sense ofjustice that it [warrants] a conviction for Murder in the First Degree. The [Defendant] avers that the evidence and testimony presented at trial established a killing more in line with Voluntary Manslaughter. Specifically, the [Defendant] avers that the evidence and testimony presented at trial established the killing of [Victim] was a product of passion- provocation and imperfect justification. Statement of Errors Complained of on Appeal, 12/13/2019, ¶¶ 2, 3.

Essentially, Defendant raises the following issues for review:

1. Whether the evidence and testimony presented at trial was

insufficient in proving Defendant's "specific intent to kill," which is a necessary element of first -degree murder. Specifically,

whether the Commonwealth sustained its burden in proving

"malice" and "premeditation."

2. Whether the evidence and testimony presented at trial could only

sustain a conviction of voluntary manslaughter because the killing

was a product of passion -provocation and imperfect justification.

3. Whether the jury verdict was against the greater weight of the

evidence presented at trial so as to shock one's sense of justice.

Discussion: a. The evidence and testimony presented at trial was sufficient in proving Defendant's "specific intent to kill." The Commonwealth sustained its burden in proving "malice" and "premeditation."

Defendant alleges that the evidence and testimony presented at trial

was insufficient in proving the "specific intent to kill," which is a necessary

element of first-degree murder. Specifically, Defendant avers that the

Commonwealth failed to prove "malice" and "premeditation." This Court

finds Defendant's claim unsupported by the evidence of records, and merits no relief.

Regarding Defendant's sufficiency claim, the evidence must be

reviewed in light most favorable to the verdict winner, giving the prosecution

the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Where the

evidence offered to support the verdict contradicts the physical facts,

contravenes human experience and the laws of nature, the evidence is

insufficient as a matter of law. Id. Evidence is sufficient to support the

verdict when it establishes each material element of the crime charged and

the commission thereof by the accused, beyond a reasonable doubt. Id.

In order to sustain a conviction for first-degree murder, the

Commonwealth must prove beyond a reasonable doubt that "a human being

was unlawfully killed; the defendant was responsible for the killing; and the

defendant acted with malice and a specific intent to kill, i.e., the killing was

performed in an intentional, deliberate, and premeditated manner."

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). "A specific

intent to kill may be proven by circumstantial evidence; it may be inferred

by the use of a deadly weapon upon a vital part of the victim's body."

10 Commonwealth v. Spotz, 759 A.2d 1280, 1283 (Pa. 2000).

Malice is the crucial element which distinguishes murder from other

types of homicide. Commonwealth v. Scales, 648 A.2d 1205, 1206 (Pa.

Super. 1994). Specifically, malice is the distinguishing factor between

murder and manslaughter. Id. The definition of malice was first provided

by the Pennsylvania Supreme Court in Commonwealth v. Drum, 58 Pa. 9

(1868):

Malice is a legal term, implying much more. It comprehends not only a particular ill -will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Id.

Malice exists where an individual "acts in gross deviation from the

standard of reasonable care, failing to perceive that such actions might create

a substantial and unjustifiable risk of death or serious bodily injury." Commonwealth v. Kendricks, 30 A.3d 499, 509 (Pa. Super. 2011).

The Pennsylvania Supreme Court, in Ramtahal, found the evidence

supportive of a finding of premeditation. The defendant argued that a single

bullet fired from an inaccurate handgun at a considerable distance, which

11 struck the victim in the buttocks, did not support a finding of premeditation.

Ramtahal, 33 A.3d at 608. However, the court disagreed, holding that

premeditation was shown when the defendant aimed a loaded handgun at

victim; fired a bullet that pierced an artery in victim's pelvis, causing

victim's death; and firearms experts confirmed that the gun used by

defendant was able to reach the victim. Id.

In the present case, the issue raised by Defendant is whether the

evidence proffered at trial, viewed in the light most favorable to the

Commonwealth, was sufficient to prove beyond a reasonable doubt that

Defendant committed an unlawful killing of Victim, with malice, in an

intentional, deliberate, and premeditated manner.

This Court finds that there was sufficient evidence for the jury to

conclude that Defendant acted with malice and a specific intent to kill the

victim, and committed the killing in an intentional, deliberate and

premeditated manner. See 18 PA. CONS. STAT. § 2502(d).

Leeasha Johnson, who was Defendant and Victim's common sister,

acknowledged at trial that Defendant and Victim had a verbal disagreement

at a club, "a couple weeks" before Victim was shot. N.T. Trial, 09/11/2019,

12 at 263-64. After the argument, about one week and a half prior to the

shooting, Defendant called Leeasha Johnson, saying he was going to kill

Victim. Id. at 264. Defendant at trial admitted that he shot and killed Victim.

Id. at 299.

Witnesses Wendell Johnston and Mary Schroeder were both in the

same home at the time of incident; and both identified Defendant as the

shooter. N.T. Trial, 09/10/2019, at 105, 121. According to Wendell

Johnston, he first observed Defendant sitting alone in the driver's side of a

gold Lexus vehicle, with the door open, in the parking lot at St. Paul Street

and Penn Street. Id. at 102, 111. When Wendell Johnston heard the first

gunshot, the shot was so loud that he instantly look out the window and saw

Defendant leaning across the car. Id. at 105. Approximately five or ten

seconds later, Wendell Johnston observed Defendant shoot a second time,

laying across the car and aiming towards Smyser Street. Id. at 105-07.

Wendell Johnston emphasized that it was not a random shot--"[Defendant]

had a point," "[he] was trying to hit what he was shooting at." Id. at 107

(emphasis added). Wendell Johnston indicated that he only saw Defendant

"shooting in a direction." Id. Wendell Johnston did not see Victim with 13 Defendant, nor did he hear any argument between Defendant and any

individual. Id. at 108,116-17. Defendant took off on foot fleeing the area

after the shooting, Wendell Johnston confirmed that he saw Defendant

holding a handgun in his left hand. Id. at 109.

Mary Schroeder testified that she heard a gunshot while laying on

her sofa on the first floor of her and Wendell Johnston's home. Id. at 120.

The gunshot was "very close," so Mary Schroeder proceeded to the window

and saw Defendant standing outside of the driver's side of a car. Id at 120-

21,123-24. She indicated that, in no more than ten seconds after the first

gunshot, a second shot was fired by Defendant, "over the top of the car,"

aiming towards the Smyser Street. Id. at 121-24. Like Wendell Johnston,

she did not see Victim was Defendant, nor did he hear any argument between

Defendant and any individual. Id. at 125.

Video surveillance obtained from the incident area captures that

Defendant running from the scene seconds after shots were fired, with his

left hand in his front left pants pocket. Id. at 151. The pocket appeared to

have a "large object" inside it. Id. at 151-52.

14 Van Jackson, Defendant's uncle, indicated that Defendant, dressed in

woman's clothing, arrived at his house at about 2:30 or 3:00 in the morning

following the incident. Id. at 242. When the uncle let Defendant in to his

home, Defendant said "he just wanted to see the news." Id. The news

indicated that Defendant was a wanted person for a homicide. Id. at 243.

Doctor Rameen Starling-Roney, an expert in forensic pathology,

confirmed that the cause of Victim's death was a bullet wound to the heart.

N.T. Trial, 09/11/2019, at 259. The bullet that killed Victim entered into his

right arm, exited the right arm, and entered into his heart, killing him in the

street. Id. at 255-56.

Evidence and testimony at trial proved that the casings found in the

parking lot where Defendant was seen, matched the bullet that was found in

Victim's heart, and they came from the same weapon-Defendant's gun.

See N.T. Trial, 09/10/2019, at 173,223-24, and 226.

Based on the foregoing testimony and evidence, the totality of the

circumstances establishes malice. Defendant committed the unlawful killing

with malice under Drum and Kendricks. Like Ramtahal, Defendant fired his

15 bullets, aiming at Victim, in an intentional, deliberate and premeditated

manner. Like Ramtahal and Spotz, the Commonwealth adduced ample

evidence at trial and sustained its burden in proving, beyond a reasonable

doubt, that Defendant unlawfully killed Victim with the specific intent to

kill.

In conclusion, this Court finds that, there was sufficient evidence for

the jury to conclude that Defendant acted with malice and a specific intent

to kill Victim, and committed the killing in an intentional, deliberate and

premeditated manner.

b. Defendant's killing of Victim was not a product of passion - provocation nor imperfect justification. Defendant failed to produce evidence to reduce the killing of Victim from murder to voluntary manslaughter.

Defendant claims that there was sufficient evidence of "passion -

provocation" proffered at trial to reduce first -degree murder to voluntary

manslaughter. Statement of Errors Complained of on Appeal, 12/13/2019,

¶2. Unfortunately, Defendant's own testimony, even if true, does not come

close to establishing the prerequisites of voluntary manslaughter as set forth in Commonwealth v. Barnosky, 258 A.2d 512, 515 (Pa. 1969):

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

See 18 PA. CONS. STAT. § 2502(a).

Heat of passion includes emotions such as "anger, rage, sudden

resentment or terror which renders the mind incapable of reason."

Commonwealth v. Miller, 987 A.2d 638, 650 (Pa. 2009) (internal citation

omitted). Applying an objective standard, "[t]he ultimate test for adequate

provocation remains whether a reasonable man; confronted with this series

of events, became impassioned to the extent that his mind was incapable of

cool reflection." Id.

In the present case, this Court obviously finds there was no evidence

to support Defendant's claim of provocation to demonstrate heat of passion.

In direct examination, Defendant stated that the relationship between himself

and Victim had been aggressive; and there was a verbal disagreement

17 between himself and Victim before the incident. N.T. Trial, 09/11/2019, at

294. Although during this alleged altercation, Victim allegedly gestured that

he had a gun, this incident was about ten days prior to Defendant's shooting

of Victim. Id. at 295. Defendant testified that, on the day of shooting, Victim

told him that he was going to kill him, making gestures with his hands in his

pockets, while Victim was approaching Defendant's car. Id. at 297.

Defendant suggested that he did what he believed, under the circumstances,

was necessary to protect himself from death or imminent serious bodily

injury; he shot Victim. Id. at 298-99. Contrary to eyewitnesses' testimony,

Defendant claimed that, at time of his first shooting, Victim was right "at the

light of [his] car." Id. at 299;

Defendant did not provide other evidence to corroborate his above

assertions. Also, Defendant's testimony is contradicted by other evidence

and testimony provided by the Commonwealth. Two direct eyewitnesses,

Wendell Johnston and Mary Schroeder, both indicated that they only saw

Defendant shooting in a direction; they did not see Victim was anywhere

close to Defendant's car; they did not hear any verbal argument between

Defendant and any other individual. N.T. Trial, 09/10/2019, at 108,116-17, 18 125. In addition, both eyewitnesses confirmed that, five or ten seconds later,

Defendant fired another bullet after his first shooting. Id. at 105-07,121-

24. Both of them further pointed out that, at the time of shooting, Defendant

"had a point;" he shot "over the top of the car;" he was "aiming;" he was

"trying to hit what he was shooting at." Id. at 107,121-24.

Even if Defendant's testimony is assumed to be true, there was simply

no evidence in support of Defendant's claim of provocation. Defendant was

sitting and relaxing in his car while watching the kids play around. N.T.

Trial, 09/11/2019, at 296. Defendant was right by the driver's side of his car

when he noticed Victim was approaching him. Id. at 304. Defendant alleged

that he became scared simply because he saw Victim's hand in his pocket.

Id. at 303. Defendant did not actually see a gun. Id. Defendant could have

just driven away from Victim, but he did not. Instead, he had time to retrieve

a gun from his car, which he asserted he carried in his car only on the day of

incident. Id. Defendant missed his first shot at Victim. Id. at 304. Instead

of instantly refiring, Defendant waited five or ten seconds, and fired his

second shot towards Victim. N.T. Trial, 09/10/2019, at 105-07,121-24.

19 Under Barnosky and Miller, a reasonable man, under the similar

circumstances as Defendant, would not become impassioned to the extent as

what Defendant did to use deadly force to kill another individual. There was

no adequate provocation for Defendant to commit the unlawful killing of

another. Therefore, Defendant did not kill Victim in a heat of passion.

In addition, Defendant argues that sufficient evidence of "imperfect self-defense" negates the element of malice, thus reducing murder to

voluntary manslaughter. Statement of Errors Complained of on Appeal,

12/13/2019, ¶2. However, trial record reveals that Defendant did not argue

imperfect self-defense at trial. Rather, Defendant argued that he acted in

legitimate self-defense during the incident. See N.T. Trial, 09/11/2019, at

291, 298-99, and 333. At no point did Attorney Robinson argue that there

was sufficient evidence to prove "imperfect self-defense." No new legal

theories can be raised on appeal. PA.R.A.P. 302(a); Commonwealth v.

McCandless, 880 A.2d 1262, 1268 (Pa. Super. 2005). Thus, Defendant's

claim of "imperfect self-defense" is waived on appeal.

Even if it were preserved, this Court finds no evidence adduced at trial

supportive of a claim of "imperfect self-defense." The imperfect self- 20 defense provision has been explained by the Pennsylvania Superior Court in

Bracey, 795 A.2d at 947:

This 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. All other principles of justification under 18 Pa. C.S. § 505 must still be met in order to establish unreasonable belief voluntary manslaughter.

In order to establish the defense of self-defense under 18 Pa. C.S. § 505, the defendant must not only show that he was protecting himself against the use of unlawful force but must also show that he was free from fault in provoking or continuing the difficulty which resulted in the killing.

As discussed above, this Court finds no evidence of self-defense

required of Defendant. Accordingly, Defendant's claim of imperfect self-

defense is either waived or meritless.

In either case-heat of passion or imperfect self-defense, the absence

of malice is an essential element of voluntary manslaughter. Commonwealth v. White, 910 A.2d 648, 661 (Pa. 2006). The jury must be satisfied that

killing was not the consequence of the actor's "hardness of heart or careless

disregard of human life." Commonwealth v. Cain, 398 A.2d 1359, 1361 (Pa.

1979). As discussed previously, Defendant acted with malice and a specific

intent to kill Victim, and committed the killing in an intentional, deliberate

21 ri

and premeditated manner. Thus, Defendant's wish to reduce murder to

voluntary manslaughter must fail.

In conclusion, Defendant's killing of Victim was not a product of

passion -provocation nor imperfect justification. Defendant failed to produce

evidence to reduce the killing of Victim from murder to voluntary

manslaughter.

c. The jury verdict was not against the greater weight of the evidence presented at trial so as to shock one's sense of justice.

In support of Defendant's argument that the jury verdict was against

the greater weight of the evidence presented at trial so as to shock one's sense

of justice that it warrants a conviction for first -degree murder, Defendant

claims that "the evidence and testimony presented at trial established a

killing more in line with [v]oluntary [m]anslaughter." Statement of Errors

Complained of on Appeal, 12/13/2019, ¶ 3. Defendant further specifies that

the killing of Victim was "a product of passion -provocation and imperfect

justification." Id.

We review Defendant's claim based on the following standard:

An allegation that the verdict is against the weight of the

22 evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

Widmer, 744 A.2d at 751-52 (Pa. 2000).

The Pennsylvania Supreme Court has held that "a new trial should be

awarded when the jury's verdict is so contrary to the evidence as to shock

one's sense ofjustice and the award of a new trial is imperative so that right

may be given another opportunity to prevail." Commonwealth v. Brown,

648 A.2d 1177, 1189 (Pa. 1994), quoting Thompson v. City of Philadelphia,

493 A.2d 669, 672 (Pa. 1985).

As discussed previously, this Courts finds that the verdict was amply

supported by competent evidence. This Court's sense of justice was not

shocked by the verdict. In conclusion, Defendant's claim as to the weight of

evidence is without basis.

23 Conclusion: Based on the above reasons, this Court respectfully urges affirmance

of this Court's judgment of sentence entered on October 21, 2019.

The Clerk of Courts is directed to provide notice of the entry of this

Statement to the York County District Attorney's Office, Korey Leslie,

Esquire, Counsel for Defendant and Defendant, Robert Lee Johnson II.

BY THE COURT,

MARIA MUSTI COOK, JUDGE