Com. v. Jones, M.

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2024
• Docket: 1442 EDA 2022
• Status: Unpublished

Opinion

J-A26021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MILES K. JONES : : Appellant : No. 1442 EDA 2022

Appeal from the Judgment of Sentence Entered November 18, 2021 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000820-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 27, 2024

Miles K. Jones appeals from the judgment of sentence entered following

his convictions of two counts of first-degree murder, 13 counts of recklessly

endangering another person (“REAP”), one count of possessing an instrument

of crime (“PIC”), and one count of firearms not to be carried without a license. 1

We affirm.

Jones went on a camping trip with his girlfriend, Kristen Wright, and 11

other people. Jones did not know any of the other campers. Jones and Wright

got into an argument, during which Jones flipped over a tent with Wright still

inside. Some of the other campers came to Wright’s defense. Arthur Hill placed

himself between Jones and the tent, and Jones shoved Hill. One of Hill’s sons,

Justin Hill (“Justin”), punched Jones in the face, knocking him to the ground.

____________________________________________

1 See 18 Pa.C.S.A. §§ 2502(a), 2705, 907(b), and 6106(a)(1), respectively. J-A26021-23

After the fray, Jones announced “that it wasn’t over and that they were all

going to pay.” See Trial Court Opinion, 12/22/2022, at 4; see also id. at 4

n.37.

Jones went to Wright’s car to “cool off,” but returned soon after with his

handgun. Id. at 5-6. When one of the campers, Eric Braxton, gestured for

Jones to return to the car, Jones shot him in the chest from two feet away,

killing him. Jones fired another handful of shots at the other campers as they

fled into the woods, calling for help. One of these shots struck Hill in the back.

Hill was later transported to the hospital, where he was pronounced dead.

According to the placement of the shell casings and the victim’s bodies, there

were 66 feet between where Jones fired the shot that killed Braxton and where

he fired the shot that killed Hill. The police arrived, arrested Jones, and

transported him to a hospital. There was conflicting testimony on Jones’s level

of intoxication at the time of the shootings. Id. at 33. He did not have a license

to carry a firearm.

Jones testified, claiming he had acted in self-defense. He stated that

during his argument with Wright, he asked her to take him home, and she

refused. See N.T., 11/10/21, at 79. Jones shoved the tent pole but did not

expect the tent to flip on its side. Id. at 80. Jones said that Hill, Justin, and

another of Hill’s sons, Brandon (“Brandon”), then approached, and Hill pushed

Jones. Id. at 81-82. Jones “told them to get the fuck out of [his] face[.]” Id.

at 82. Justin then punched Jones, and he fell to the ground. Id. When Jones

tried to get up, someone punched him a second time. Id. When he fell, he hit

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his head and lost consciousness. Id. He awoke to being stomped on the

ground and kicked by multiple people. Id. at 82-84. Jones said he then warned

the campers that they were not going to get away with the assault, as he

intended to report it to the police once he could reach his phone. Id. at 83.

Jones said that after slipping in and out of consciousness, he awoke in

Wright’s car. Id. at 85. He was in pain and afraid the campers would attack

him again. Id. at 85-86. According to Jones, he tried to get out of the car to

retrieve his phone but was told to stay inside. Id. at 86. Jones said he believed

the campers had his phone but would not give it to him. Id. at 87-88. Jones

grabbed his firearm with the intention of running away. Id. However, when

he exited the car and tried to walk, his ankle buckled, and he had to limp. Id.

at 89. When he was a few steps away from the car, Braxton approached him

to prevent him from leaving. Id. Jones told him to move out of the way, but

Braxton tried to grab him. Id. As Jones backed away, Braxton continued to

move towards him. Id. Jones then saw Hill and the Hill brothers running

towards him from behind. Id. at 89-90. Afraid that they were going to attack

him again, and unable to run away, Jones shot Braxton and then shot towards

Hill and the Hill brothers. Id. at 90. Jones testified he fired another shot

accidentally as he lost balance. Id. He then tried to run and yelled for the

others to call the police. Id. at 92.

The jury convicted Jones of the above-listed crimes. The court sentenced

him to two mandatory terms of life imprisonment for the first-degree murders

of Braxton and Hill, 13 terms of one to two years’ imprisonment for the REAP

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convictions, three and a half to seven years’ imprisonment for firearms not to

be carried without a license, and two and a half to five years’ imprisonment

for PIC. The court ran each sentence consecutively. Following the court’s

denial of his post-sentence motions, Jones timely appealed.2

Jones raises the following issues:

A. Did the trial court err in its ruling regarding the admissibility and scope of permissible evidence regarding the prior convictions of Brandon Hill and Justin Hill?

B. Did the trial err in issuing a number of improper evidentiary rulings?

C. Did the trial court err in refusing to inquire as to whether the jury overheard the trial court loudly reprimanding counsel?

D. Did the trial court err in denying [Jones’s] Brady motion[3] and in refusing to give a missing evidence jury instruction?

E. Did the trial court err in repeatedly allowing the Commonwealth to question witnesses regarding [Jones’s] post arrest silence?

2 The docket reflects that following voir dire, the trial took place on November

1, 3, 4, 5, 8, 9, 10, 12, and 15, 2021. Although the defense moved for transcription of each date of trial, and the court entered an order granting the motion, no notes of testimony were ever filed for the proceedings that took place on November 9, 2021, and that transcript is not included in the certified record. According to a court sheet filed on the docket, the defense presented 10 witnesses that day. Our informal inquiry has revealed that the transcript is not in the possession of the trial court. Nonetheless, neither Jones’s brief nor his reply brief includes any citation to the testimony on November 9. Its absence has not posed a substantial impediment to appellate review. Just the same, it is an appellant’s burden to ensure the certified record is complete. Therefore, any argument that the November 9, 2021 transcript would support Jones’s arguments, or that we have misconstrued the proceedings on that day, is waived. See Commonwealth v. O’Black, 897 A.2d 1234, 1238 (Pa.Super. 2006).

3 See Brady v. Maryland, 373 U.S. 83 (1963).

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F. Did the trial court err in denying [Jones’s] motion to sever the firearms without a license charge?

G. Did the trial court err in giving improper jury instructions?

H. Were the verdicts of guilty supported by sufficient evidence?

I. Did the trial court abuse its discretion in sentencing [Jones] to a sentence which was excessive under the circumstances in light of [Jones’s] personal circumstances, his character, and the circumstances of the offense?

J. Were the verdicts of guilty against the weight of the evidence?

Jones’s Br. at 14-15 (answers of the trial court omitted).

I. Evidentiary Rulings

In issues A, B, and E, Jones challenges the court’s evidentiary rulings.

We review a trial court’s decisions on the admissibility of evidence for an abuse

of discretion. Commonwealth v. Brown, 212 A.3d 1076, 1086 (Pa.Super.

2019). “An abuse of discretion exists where there is an overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by

the evidence of record.” Commonwealth v. Gross, 241 A.3d 413, 418

(Pa.Super. 2020) (internal quotation marks and citation omitted). “Moreover,

an erroneous ruling by a trial court on an evidentiary issue does not

necessitate relief where the error was harmless beyond a reasonable doubt.”

Commonwealth v. Lehman, 275 A.3d 513, 519 (Pa.Super.), appeal denied,

286 A.3d 213 (Pa. 2022) (citation omitted).

A. Evidence of the Hill Brothers’ Prior Bad Acts

Jones first argues the court abused its discretion in limiting the evidence

he could present of the prior convictions and pending charges of two of the

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other campers: Justin and Brandon. According to Jones, Justin had previously

been convicted of two robberies and one prison altercation. He argues that in

each criminal episode, Justin punched his victim in the face and knocked the

victim to the ground, just as Jones alleges Justin had knocked him out in the

instant case. Jones argues the court improperly limited the evidence he was

able to present regarding these episodes to the facts read into the record when

Justin pleaded guilty in those cases. Jones also asserts that Justin had a

pending charge for simple assault. He argues the acts described in the arrest

records and charging documents for the previous convictions and pending

charge were relevant to prove Justin was the aggressor in the instant case.

Jones asserts the court also abused its discretion in precluding him from

introducing evidence that both Hill brothers had pending charges and were

released on bail and/or had been serving probation or parole at the time of

the shooting. Jones argues this evidence was relevant to prove the brothers

testified against him to receive favorable treatment by the Commonwealth

and to avoid being found in violation of the requirements of their supervision.

He asserts that none of the foregoing evidence would have violated the rules

prohibiting the admission of prior bad acts, as those rules apply to restrict the

admission of prior bad acts of the defendant, not a witness.

Jones also argues the court erred in giving cautionary instructions

preceding the Hill brothers’ testimony. He asserts the court told the jury it

could not construe the brothers’ prior convictions as evidence of their guilt or

character, which Jones claims does not apply to witness testimony.

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These arguments are without merit. First, as Jones admits, the court

allowed Jones to introduce evidence of Justin’s prior convictions and the facts

to which he pleaded guilty, finding these were relevant to prove Jones’s self-

defense claim. See N.T., 9/21/21, at 12-16 (court ruling at pretrial hearing

that evidence of Justin’s prior convictions was admissible as relevant to his

credibility and violent propensity). However, the court precluded Jones from

introducing facts that were alleged in the charging documents but which Justin

had not admitted. N.T., 11/4/21 (Morning Session), at 13, 18-19, 32, 34, 38,

40-42, 71 (court limiting facts to those Justin admitted at guilty plea). This

was proper, as such statements would have been hearsay. See

Commonwealth v. Katchmer, 309 A.2d 591, 593 (Pa. 1973) (“An inquiry

as to a mere arrest or indictment is not permitted because an arrest or an

indictment does not establish guilt, and the reception of such evidence would

merely constitute the reception of somebody’s hearsay assertion of the

witness’ guilt” (citation omitted)).

Moreover, an arrest record is only relevant to a self-defense claim where

the defendant claims that his knowledge of allegations in the arrest record led

him to believe he needed to defend himself. See Lehman, 275 A.3d at 519-

20. Jones has not claimed that he was acting based on his knowledge of the

allegations made in Justin’s arrest records or charging documents. Nor did

Jones offer any non-hearsay evidence of the accusations in these documents.

See id. at 520 (stating eyewitness testimony describing a victim’s prior

violence is admissible to prove victim’s propensity for violence).

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Next, contrary to Jones’s assertions, the court permitted him to question

the Hill brothers about their pending charges and their probation and parole

status, and to call their credibility into question on these bases. See N.T.,

9/21/21, at 6-7, 16 (court ruling that Justin’s open assault charge was

admissible as motive to lie); 11-12 (ruling that Brandon’s being on probation

and his pending charge is admissible to challenge his credibility); N.T.,

11/3/21, at 166-67 (reiterating that Brandon could be cross-examined about

being on probation at the time of the camping trip and his pending charge),

167-70 (reiterating that evidence of Justin’s probation status at the time of

the instant case and his open charges were admissible). Pursuant to these

rulings, Jones questioned the Hill brothers on these points. See N.T., 11/4/21

(Morning Session) at 164-66 (defense counsel cross-examining Justin

regarding his prior convictions, open charge, and supervision status); N.T.,

11/5/21, at 223-28 (defense counsel cross-examining Brandon regarding his

probation status and open charge).

Finally, Jones waived any challenge to the cautionary instructions

preceding the Hill brothers’ testimony, as Jones lodged no objection at the

time. See N.T., 11/4/21 (Morning Session) at 74-88 (court giving

precautionary instruction before Justin’s testimony); N.T. 11/5/21, at 153-56

(court giving instruction before Brandon’s testimony); Commonwealth v.

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Moury, 992 A.2d 162, 178 (Pa.Super. 2010) (“a specific and timely objection

must be made to preserve a challenge to a particular jury instruction”).4

B. Bodycam Footage of the Hill Brothers

In Issue B, Jones argues the court abused its discretion in limiting the

introduction of bodycam footage of Justin and Brandon after the police arrived

at the scene. Jones alleges that in the video, while he is handcuffed and lying

on the ground, the Hill brothers attack him and yell, “I’m going to fucking kill

him!” Jones’s Br. at 34-35. Jones asserts that the court ruled that the defense

could only introduce the footage if the Commonwealth could offer, in rebuttal,

evidence of Brandon performing CPR on his father, Arthur Hill, after he was

shot. Jones argues the bodycam footage was highly relevant to his claim of

self-defense, as it shows the Hill brothers were aggressive. Jones asserts the

evidence of Brandon performing CPR, in contrast, was irrelevant and

inflammatory.

“Evidence is admissible if it is relevant — that is, if it tends to establish

a material fact, makes a fact at issue more or less probable, or supports a

reasonable inference supporting a material fact — and its probative value

outweighs the likelihood of unfair prejudice.” Commonwealth v. Hicks, 156

A.3d 1114, 1125 (Pa. 2017) (citation omitted). “‘Unfair prejudice’ means a

tendency to suggest decision on an improper basis or divert the jury’s

4 We will address the court’s closing instructions regarding the Hill brothers’

criminal records in Section VI.A., infra.

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attention away from its duty of weighing the evidence impartially.”

Commonwealth v. Wright, 961 A.2d 119, 151 (Pa. 2008).

We discern no abuse of discretion. The actions of the Hill brothers after

their father had been shot and Jones had been arrested are very weakly

probative of how the shooting unfolded. The evidence of Brandon performing

CPR would have been equally as relevant as the bodycam footage to show

Brandon’s state of mind after the shooting. As both items were of low

probative value to the facts at issue, and both bore a risk of unfair prejudice,

the court’s decision to allow both or neither was not manifestly unreasonable.

C. The Hospital Video

Jones next argues the court erred in allowing the Commonwealth to

introduce a video of him receiving or refusing medical treatment at the

hospital, two hours after his arrest, and showing that he was intoxicated and

belligerent. Jones contends this evidence was highly prejudicial and improper

character evidence. He points out that the Commonwealth even replayed the

video during its closing argument and said to the jury, “I submit to you this is

his character.” Jone’s Br. at 42. Jones argues that the court should instead

have limited the evidence to the officer’s testimony about Jones’s hospital

behavior. Jones also complains the court denied his request to admit video of

him at the crime scene after the shooting, two hours earlier. He contends this

evidence would have been more probative of his demeanor and level of

intoxication at the time of the shooting and was equally as probative of the

extent of his injuries.

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The court ruled the hospital video was admissible to show the level of

Jones’s intoxication and the extent of his injuries. We agree with the court

that the video is probative on these points. Furthermore, Jones concedes that

his behavior at the hospital, while “rude and obnoxious,” it was “in no way

threatening[.]” Id. at 40. This lowers the video’s prejudicial impact.

The court also ruled that to the extent the video portrayed Jones’s

character, it would be admissible to rebut any character evidence Jones

introduced. See N.T., 11/12/21, at 118-19 (court overruling defense objection

to prosecutor’s closing remarks because defense presented evidence of

Jones’s peaceful character); Pa.R.E. 404(a)(2)(A) (providing that prosecutor

may offer character evidence to rebut defendant’s evidence of a pertinent

trait). As Jones introduced evidence of his reputation for peacefulness before

the Commonwealth’s closing argument, the Commonwealth was properly

permitted to use the hospital video in rebuttal.

To the extent Jones complains that the court should also have allowed

video of his earlier interactions with the police, as this would have been more

probative of his injuries and level of intoxication, this claim lacks merit.

Although the court initially ruled the recordings were inadmissible, it later

found this evidence was admissible to rebut the hospital video. See N.T.,

11/8/21, at 35-39.5

5 This ruling post-dated the court’s ruling that recordings of Jones’s statements

to the police were inadmissible because they were hearsay. See Section I.D., infra.

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D. Recordings of Jones’s Post-Arrest Statements

Jones’s next argument is that the court erred in refusing to allow

bodycam footage of various statements he made to arresting police officers

and medical personnel describing his injuries and maintaining that he had

acted in self-defense.6 Jones asserts these out-of-court statements were

relevant to his self-defense claim and were admissible under the hearsay

exceptions for excited utterances, present sense impressions, declarant’s

state of mind, and medical diagnosis. He argues his statements were excited

utterances because they were made “in response to a startling event, namely,

him being assaulted and seriously injured, firing a gun in self-defense, and

subsequently being arrested for the first time in his life.” Jones’s Br. at 45. He

also argues that the statements described his present sense and state of mind

6 Jones sought to introduce recordings of the following statements: “I am not

a criminal, please do not be mean to me”; “I am not a threat . . . I have been drinking but I’m not a threat”; “Look at my jaw, my jaw is broken, I am a victim. They whooped my ass”; “My ankle is broken”; “I took an ass whooping and then they wouldn’t leave afterwards. They kept hanging around talking about shit”; “I swear to God, officer, I’m the victim”; “I am the victim I swear”; “My ankle is fucked up”; “Let me call my mom please”; “I cannot walk on this”; “Please do not treat me as a criminal. I am not a criminal. I didn’t do anything wrong”; “I'm not the bad guy here, I swear to God”; “I’m not the bad guy, I swear, I swear to God”; “Take pictures of my face, do you see my face? So, I know what’s happening. Take pictures of my face before you go away . . . get a camera. Your phones. They kicked my ass”; “I was fighting for my life”; “I got injuries to my foot and look at my face”; “I was trying to leave”; “I was just trying to leave. My whole thing was can you please take me home. I was just trying to leave. I didn’t want to be there. I swear to God”; “Please don’t treat me like I was doing a bad thing. I was just trying to leave”; “I got my ass whooped for saying a smart thing”; “I didn’t do anything. I got attacked. See my face, my blood.” Jones’s Br. at 48-50 (citations omitted).

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because they described his fear of being killed by the campers and his physical

pain. Id. at 46-47.

Insofar as Jones contends that the court precluded his statements

describing his physical injuries, his argument is contrary to the record. The

court admitted those statements under the hearsay exception for medical

diagnosis or treatment. See N.T., 11/1/21 at 307, 318, 324, 331-32, 336,

339, 342; Pa.R.E. 803(4) (providing hearsay exception for statements made

for medical treatment or diagnosis).

Regarding the other statements, the court initially ruled that no hearsay

exception applied to them. The court observed that the statements were either

conclusory professions of innocence or a recounting of prior events. The court

found the former did not fall into any hearsay category. It found the latter

were not excited utterances or present sense impressions because they were

made well after the events they described. The court also found they did not

describe Jones’s state of mind at the time of his arrest. Rather, the court found

these statements were made “in response to the fact that the police had

immediately taken [Jones] into custody and, being occupied with medical

emergencies and scene control, chose not to take a statement from [him]

despite his requests that they do so.” Trial Ct. Mem. Op. at 87. The court

found Jones “was calm and deliberate when making the statements and was

clearly attempting to influence the police investigation. He was aware that

other witnesses were being interviewed and was attempting to give his

account of record and his injuries documented while explaining why the other

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witnesses should not be relied upon.” Id. at 88. The court concluded the

statements were made in calculated response to the actions of the police,

rather than in response to the excitement of the shooting or the alleged

assault on Jones. Id. at 87-88; see also N.T., 11/1/21, at 328 (court stating,

“This is not a running narrative by an emotional person who just witnessed

something because the narrative omits 75 percent of what occurred”).

The court did not abuse its discretion or misapply the law. It properly

concluded that the statements, offered after a period of reflection, did not

qualify as excited utterances or present sense impressions. See Pa.R.E.

803(1) (defining present sense impression as “statement describing or

explaining an event or condition, made while or immediately after the

declarant perceived it”); Pa.R.E. 803(2) (defining excited utterance as

“statement relating to a startling event or condition, made while the declarant

was under the stress of excitement that it caused”); Commonwealth v.

Boczkowski, 846 A.2d 75, 95 (Pa. 2004) (“[F]or a statement to be

considered an excited utterance, it must be made spontaneously and without

opportunity for reflection”); Commonwealth v. Gray, 867 A.2d 560, 571

(Pa.Super. 2005) (holding for statement to qualify as present sense

impression, “[t]he observation must be made at the time of the event or so

shortly thereafter that it is unlikely that the declarant had the opportunity to

form the purpose of misstating his observation” (citation omitted)).

To the extent that any of Jones’s statements may have been admissible

to show his state of mind or demeanor after the shooting, the court later ruled

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they were admissible to rebut the Commonwealth’s presentation of the

hospital video. See N.T., 11/8/21, at 35-39.

In addition, the court allowed Officer Pedro Ruiz to testify that Jones

made the statements. See id. at 101-03 (court overruling Commonwealth’s

objection to defense questioning Officer Ruiz regarding Jones’s statements to

the police, to show Jones’s demeanor and state of mind, in rebuttal to the

Commonwealth’s introduction of the hospital video), 103-08 (Officer Ruiz

testifying that Jones told him he had been attacked). Jones also testified, and

recounted what he told the police after their arrival. See N.T., 11/10/21, at

93-96. As these statements came into evidence by other means, any error in

the court’s initial ruling that the recordings of the statements were

inadmissible was harmless beyond a reasonable doubt. See Commonwealth

v. Allshouse, 36 A.3d 163, 182 (Pa. 2012).

E. 911 Calls

Jones next contends that the court erred in allowing the Commonwealth

to introduce the audio recordings of the 911 calls made by the fleeing

campers. Jones argues these were highly inflammatory and had little

probative value. He asserts that testimony about the calls and transcripts of

the calls would have been more appropriate.

Recordings of 911 calls can assist in establishing a timeline of events

and the mental state of the callers. See Commonwealth v. Wright, 961

A.2d 119, 151 (Pa. 2008). Here, considering Jones’s allegations that the

campers had assaulted him, the court ruled that the calls were probative of

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whether the other campers “were acting in concert, whether or not they were

being aggressive or in an emotional state or angry or volatile[.]” N.T.,

9/10/21, at 85. The court determined the recordings were the best evidence

of the campers’ response to “an ongoing criminal episode.” Id. at 84-88; see

also id. at 83 (court ruling that transcript of 911 calls was insufficient to

replace recording, stating, “Reading I can’t get intonation, emotion, which is

relevant,” and, “You can’t tell if it’s faltering or hesitating. You can’t tell if they

are sure. You can’t decide if they are actually in fear or not actually in fear.

You can’t get a gauge whether they are playing with the cops or not playing

with the cops”). It concluded that the probative value of the calls outweighed

the risk of unfair prejudice. Id. at 88. This was not an abuse of discretion.

F. Toxicology Expert

Jones argues the court erred in allowing Dr. Ian Hood to testify that the

marijuana found in the blood of one of the victims, Eric Braxton, would have

made him less aggressive:

Q. And in your - - based on your training and experience, does marijuana tend to make you more or less aggressive?

A. It tends to mellow you out, I think is what most people would describe it as doing, so you become less aggressive.

N.T., 11/3/21, at 201-02. Jones argues there was no foundation for Dr. Hood’s

opinion on toxicology, as he was only admitted as an expert in forensic

pathology. Jones asserts this testimony was beyond the scope of Dr. Hood’s

expertise, and undermined Jones’s self-defense claim.

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This claim lacks merit, as Dr. Hood laid a foundation for his expert

knowledge. See Pa.R.E. 702 (providing requirements for admissibility of

expert opinion). After Dr. Hood offered the above testimony, the court asked

him whether it was in his area of expertise. Dr. Hood responded,

I did testify on the effects of drugs and ethanol routinely, especially down in Philadelphia. So it is certainly something that you receive training in as a forensic pathologist. And I certainly have gone to multiple workshops and training sessions involving the effects of drugs, especially nowadays since we are getting so many new drugs.

N.T., 11/3/21, at 202-03. Dr. Hood also agreed that his testimony was “to a

reasonable degree of certainty in [his] field as a forensic pathologist.” Id. at

203.

Furthermore, Dr. Hood explained that the level of marijuana found in

Braxton’s blood was “a really quite low level. You could even reach that if you

were -- especially if you were, say, in a confined environment and somebody

else is smoking, but you are not,” and that “the level is so low that it would

have little effect on anyone.” Id. at 201, 203 (emphasis added). Therefore,

even if court improperly allowed Dr. Hood’s testimony on this point, any such

error was harmless.

G. Cross-Examination on Jones’s Post-Arrest Silence

In Issue E, Jones argues the court erred in permitting the

Commonwealth to cross-examine him regarding certain things he did not say

to the police after the shooting. Jones asserts the prosecutor asked him why

he had not complained about any injuries other than to his foot and jaw;

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expressed any concern for the deceased; offered specific details about the

campers’ alleged assault of him; explained that he had been in fear of injury

or death; or explained why he could not have stayed in the car or retreated.

Jones claims that not only did these questions violate his right to silence, but

also they impermissibly shifted the burden to him to prove self-defense.

During Jones’s direct testimony, he testified that he explained to the

police that he had been attacked and had acted in self-defense:

Q. [W]hen the police show up, how do you feel?

A. I felt relief. I felt relief that they weren’t going to be able to attack me and then I could explain to the police what happened.

Q. At the scene, did you tell the police what happened?

A. I tried a few times to let them know what had happened. I knew that they — obviously, they knew that I had a gun and I had fired it. I was trying to explain to them why I had fired it.

Q. Did you tell them specifically that you shot somebody?

A. I did. I assumed they knew that when they were — I mean, they took — they just took the firearm off me.

Q. Did you talk about any of your injuries to them?

A. I did. I told them that I got my ass kicked by more than one person, that my jaw might be broken, that my ankle was broken. I said it was broken because I couldn’t walk on it and I told them that.

...

Q. When you arrived at the — during the ride to the police station, are you still making statements to the police?

A. Yes. I mean, I kept trying to explain to them that — I kept saying, I am not a bad guy. You know, people — that they attacked me. I was — I was concerned about being arrested for defending myself and I was trying to explain that to them.

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N.T., 11/10/21, at 93, 96.

On cross-examination, the Commonwealth asked for a sidebar

conference and asked the court to rule on whether, by testifying about his

statements to police, Jones had opened the door to cross-examination on

information he had left out those statements. The court ruled that the

Commonwealth could ask Jones the questions, and that Jones could respond

that the officers had told him not to make any statements. Id. at 119-20.

We find this issue waived, as Jones did not object to the court’s ruling

at sidebar and did not object to the prosecutor’s subsequent questions on

cross-examination. Id. at 119-28.

Even if it were not waived, we would not find an abuse of discretion. The

prohibition on questions seeking to expose a defendant’s silence does not

apply where the defendant did not remain silent. Commonwealth v.

Jermyn, 533 A.2d 74, 81 (Pa. 1987). A defendant’s post-arrest statements

to the police are permissible for impeachment purposes if the defendant offers

contrary testimony about the content of those statements. See

Commonwealth v. Turner, 454 A.2d 537, 539-540 (Pa. 1982) (“Silence at

the time of arrest may become a factual inconsistency in the face of an

assertion by the accused while testifying at trial that he related [his version of

events] to the police at the time of arrest when in fact he remained silent”);

Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998) (“[W]here a

prosecutor’s reference to a defendant’s silence is a fair response to a claim

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made by defendant or his counsel at trial, there is no violation of the Fifth

Amendment privilege against self-incrimination”).

Here, the police did not question Jones. Jones nonetheless voluntarily

made certain statements to the police and testified on direct examination that

he had explained to the police what had happened during the alleged attack.

The Commonwealth was therefore permitted to question him about the extent

of the explanation he had volunteered and expose any inconsistencies

between those statements and his trial testimony. The issue thus warrants no

relief.

II. Continuance Request

Jones argues the court erred in denying his request for a trial

continuance so that he could review the results of the firearm test. According

to Jones, “This testing was for the purpose of establishing how far apart the

parties were when the shots were fired.” Jones’s Br. at 55. Jones asserts that

the defense had been requesting this discovery for a year and a half prior to

trial. He claims that he requested that the court grant him at least two months

to review the results before jury selection. N.T., 9/22/21, at 26-36. The court

denied the request and granted a shorter continuance. Id. at 38. Jones

ultimately received the test results on September 30, 2021, jury selection

began on October 4, 2021, and the parties opened to the jury on November

1, 2021—just one month after he had received the test results.

Jones challenges only the denial of the continuance. He does not argue

the court erred in admitting the results of the firearm test. “The grant or denial

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of a motion for a continuance is within the sound discretion of the trial court

and will be reversed only upon a showing of an abuse of discretion.”

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa.Super. 2016) (citation

omitted). The denial of a continuance is subject to harmless error analysis.

Commonwealth v. Sandusky, 77 A.3d 663, 672 (Pa.Super. 2013). Thus,

“[a] bald allegation of an insufficient amount of time to prepare will not provide

a basis for reversal of the denial of a continuance motion.” Commonwealth

v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014) (citation omitted). “An

appellant must be able to show specifically in what manner he was unable to

prepare for his defense or how he would have prepared differently had he

been given more time. We will not reverse a denial of a motion for continuance

in the absence of prejudice.” Id. at 745-46 (citation omitted).

Here, the result of the firearms test was inconclusive. The firearms

expert could not render an opinion regarding a muzzle-to-target distance.

N.T., 11/4/21 (afternoon), at 56. Jones has not explained how, had he had

more time to review this report, or to submit the evidence to other experts

for testing, he would have changed his defense. He has therefore failed to

establish prejudice, and any error in this regard was at most harmless.

III. Questioning of Jurors

In Issue C, Jones argues that while the jury was in the hallway directly

behind the courtroom, the court reprimanded defense counsel that he had

made a statement that was not supported by the record. The court

admonished counsel as follows:

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THE COURT: You made the conclusionary statement that he pled guilty to punching someone that is not supported by the record. I accepted your representation as to that. That is not what happened, period. It’s not what happened. That’s the problem.

I will never rely on your representations again, Mr. Hone. Is that your argument, that I should have verified every fact that you represented prior to my ruling?

Wait a minute. Exactly that is your argument. I accept that argument. I reject that argument, and I will never do it again. Do you understand?

[DEFENSE COUNSEL]: I disagree with that assessment, Your Honor.

THE COURT: Bring the jury in.

N.T., 11/3/21, at 173-74, 175. Jones asserts the jury entered the courtroom

immediately afterward. Jones claims he asked the court to question the jurors

as to whether they had heard the exchange, but the court refused. Jones also

asserts the court repeatedly interrupted counsel on cross-examination and

baselessly threatened to hold counsel in contempt of court.

These claims are waived. After the above exchange, Defense counsel

made the following request:

I just had a question before the jurors came in. I know that you and I had a disagreement before we started for the afternoon session. I am concerned because of the strength of the argument that there is a possibility they may have heard something, because they came in right after that.

I just wondered if at some point we could possibly just do a questioning or something, if they heard any of the court proceedings or anything before they came in?

N.T., 11/3/21, at 241.

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The court responded:

THE COURT: I have no reason to believe they were anywhere near to hear in the courtroom. Mr. Smith, were they near?

THE TIPSTAFF: They were in the back hallway, but chatting with Bob.

THE COURT: So they weren’t –

THE TIPSTAFF: They were not right there.

[DEFENSE COUNSEL]: It seemed like they came right in. I just wanted to be extra cautious.

THE COURT: No. I think it is a legitimate concern.

THE TIPSTAFF: I know they were not up against the door. They were back against the wall.

[DEFENSE COUNSEL]: Okay.

[DEATH PENALTY COUNSEL]: Thank you.

Id. at 241-42.

Because Jones acquiesced in the court’s ruling, he cannot now complain

about it on appeal. See Commonwealth v. English, 667 A.2d 1123, 1127

(Pa.Super. 1995) (stating defendant’s “choice having been made to forego

inquiry of any possible jury taint cannot be resurrected in either the post-

verdict or appellate format”).

Jones’s additional arguments that the court improperly interjected or

threatened defense counsel with contempt are waived. They are not included

in his Statement of Questions Involved, or fairly suggested thereby. See

Pa.R.A.P. 2116(a). Jones also failed to timely preserve these claims by not

making a specific request for relief. See N.T., 11/3/21, at 111; N.T., 11/4/21

(Morning Session), at 59-60.

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IV. Brady Motion and Missing Evidence Instruction

In Issue D, Jones complains the court erred in overruling his Brady

motion. He claims Officer Pedro Ruiz took pictures of the injuries to Jones’s

face and foot with a camera that was kept in the glove box of the police cruiser.

Jones asserts the police were later unable to locate the photos, which he

maintains were critical to his self-defense claim. He argues that the still

images extracted from Officer Ruiz’s bodycam footage, which the court ruled

were sufficient replacements, were blurry, grainy, poorly lit, or had glare. He

also argues the missing photos were the only pictures of his injuries taken

before they were cleaned and treated. Jones argues the court erred in refusing

to instruct the jury that it could infer the missing photographs would have

been favorable to the defense.

“There are three components of a true Brady violation: [t]he evidence

must be favorable to the accused, either because it is exculpatory, or because

it is impeaching; that evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must have ensued.”

Commonwealth v. Natividad, 200 A.3d 11, 25 (Pa. 2019) (citation

omitted). Evidence is material in this context “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different. . . . A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” Id. (some

internal quotation marks and citations omitted). “The mere possibility that an

item of undisclosed information might have helped the defense, or might have

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affected the outcome of the trial, does not establish ‘materiality’ in the

constitutional sense.” Id. (citation omitted). Whether a Brady violation

warrants the grant of a new trial “presents a question of law, for which our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Bagnall, 235 A.3d 1075, 1084 (Pa. 2020).

A missing evidence instruction is warranted when (1) the evidence is

available to the Commonwealth and not the defense, (2) “it appears the item

contains or shows special information material to the issue,” and (3) “the item

would not be merely cumulative evidence.” Pa. SSJI (Crim) § 3.21B. “Our

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.

Sebolka, 205 A.3d 329, 342 (Pa.Super. 2019) (citation omitted).

The court found the missing photos of Jones’s injuries were not material

because they were cumulative of other evidence. It found the photographs

“were not unique” and “everything that could possibly be depicted about

[Jones’s] condition at the scene, at the hospital, at the police station, is

depicted in other photographs and other records and is available to [Jones]

through a multitude of witnesses[.]” N.T., 9/27/2021, at 32-33; see also

N.T., 11/10/21, at 191.

The court did not abuse its discretion. As Jones acknowledges, Officer

Ruiz’s bodycam captured him taking the missing photos, and the stills

extracted from footage showed Jones’s injuries prior to medical treatment.

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See N.T., 9/24/21, at 19-21; Exs. CS-42, CS-43, CS-44. There were also stills

from the bodycam footage showing the injuries after the medical staff cleaned

and treated them. See N.T. 9/24/21, at 21-23; Exs. CS-45, CS-46, CS-47,

CS-48. However, in addition to the stills extracted from the bodycam, the jury

saw two photographs of Jones’s face that Officer Ruiz took with his cell phone,

when Jones was at the hospital but had not yet been treated. See N.T.,

9/24/21, at 13-14, 18; Exs CS-38, CS-39. The defense also offered expert

testimony, hospital records, and x-rays substantiating Jones’s injuries. N.T.,

11/10/21, at 30-43; D-61, D-66, D-67, D-68.7 Because of the ample evidence

showing the extent of Jones’s injuries, the missing photos did not warrant a

missing evidence instruction or a new trial.

V. Motion to Sever Firearms Charge

In Issue F, Jones argues the court erred in denying his motion to sever

the firearms charge. He claims the evidence proving this charge was irrelevant

to the other charges, and highly prejudicial.

Pursuant to Rule 563, multiple offenses may be charged and tried

together if they are “based on the same act or transaction” and “the evidence

of each of the offenses would be admissible in a separate trial for the other

and is capable of separation by the jury so that there is no danger of

confusion[.]” Pa.R.Crim.P. 563(A). Under Rule 583, however, the court may

7 According to the trial court, on November 9, 2021, a paramedic also testified

as to Jones’s physical condition and the treatment he provided. See Trial Ct. Mem. Op. at 36, 89.

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order separate trials of offenses “if it appears that any party may be prejudiced

by offenses . . . being tried together.” Pa.R.Crim.P. 583. The party moving for

severance bears the burden of demonstrating prejudice. Commonwealth v.

Holt, 273 A.3d 514, 541 (Pa. 2022). Prejudice in this context results when

“the evidence tended to convict the appellant only by showing his propensity

to commit crimes, or because the jury was incapable of separating the

evidence or could not avoid cumulating the evidence.” Commonwealth v.

Hobel, 275 A.3d 1049, 1067 (Pa.Super 2022) (citation omitted). “A motion

to sever charges is addressed to the discretion of the trial court and will not

be disturbed on appeal absent a manifest abuse of discretion.” Holt, 273 A.3d

at 541.

Here, the charges all arose of the same factual scenario, and each

entailed proof that Jones possessed a firearm. To prove Jones committed the

offense of firearms not to be carried without a license, the Commonwealth

was required to prove that Jones had concealed his firearm in a vehicle or

upon his person. See 18 Pa.C.S.A. § 6106(a)(1). The evidence was that he

did so immediately before he shot Braxton. The cases were thus factually

intertwined. Moreover, firearms not to be carried without a license does not

require evidence of prior crimes. Thus, there was no risk that the jury would

consider the evidence supporting the instant firearms charge as proof of

Jones’s criminal tendencies. And, to further reduce any prejudice from the

evidence proving the firearms charge, the Commonwealth stipulated that

Jones had lawfully purchased the firearm and was lawfully entitled to apply

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for a concealed carry permit. See N.T., 11/4/21 (Afternoon Session), at 126.

The court did not abuse its discretion in denying the motion to sever.

VI. Jury Instructions

In issue G, Jones lodges two attacks on the final jury instructions. “When

reviewing a challenge to a jury instruction, we review the charge as a whole

to ensure it was a fair and complete statement of the law.” Commonwealth

v. Towles, 106 A.3d 591, 607 (Pa. 2014) (citation omitted). “Trial courts

possess great discretion in phrasing jury instructions so long as the law is

clearly, adequately, and accurately presented to the jury.” Id.

A. Prior Bad Acts of the Hill Brothers

Jones argues the court erred in failing to use either the standard jury

instructions for prior bad acts evidence or his own suggested instruction in

relation to the evidence of the Hill brothers’ prior convictions. Jones asserts

the language the court used instead was lengthy and repetitive and diminished

the relevance of the Hill brothers’ criminal histories. Jones alleges that the

court should have instructed the jury that it could consider whether their

records increased the likelihood that they were the aggressors or had testified

untruthfully. Jones alleges that, instead, the court told the jury that it could

give the evidence the weight it thought it deserved. He claims the court also

implied that the Hill brothers’ prior crimes should have little impact on the

jury’s consideration of their testimony.

The court found the standard jury instructions were inadequate, given

the number of the prior bad acts introduced by the defense, the different

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purposes for which they were being admitted, and the fact that they related

to two different witnesses. See Trial Ct. Mem. Op. at 71.

Regarding crimen falsi, the court instructed the jury as follows.

We heard and I instructed you very specifically about the prior record of Justin Hill and the prior record with regard to Brandon Hill. I am not going to go over the crimes. That’s for you to recall what those crimes are, but there are certain crimes that can be used for one purpose. There’s certain crimes that can be used for two purposes, so I am going to break them up.

Under the Rules of Evidence in Pennsylvania, a party may challenge the credibility of any witness. One permissible way of doing that is to introduce evidence that the witness has been convicted as an adult or an adjudicated delinquent -- that’s what it is called when you are a juvenile -- for a crime of dishonesty.

Theft is considered, under the law of Pennsylvania, a crime of dishonesty. Robbery involves theft and so therefore robbery is considered a crime of dishonesty.

A juvenile is somebody who is less than 18 years old and an adult is somebody who is 18 years old or older.

There was evidence that Justin Hill and Brandon Hill were convicted of crimes of dishonesty. As I said, you may use that evidence to evaluate whether the witness told the truth in this case, meaning what, if any, impact does the fact that the witness was convicted of a crime of dishonesty have on whether you believe their testimony in this case. It doesn’t mean whether you generally believe them or generally don’t believe them. It’s whether you believe their testimony in this case.

In deciding whether this prior crime affects the truthfulness of the witness, you should consider what’s the crime, then you should consider how long ago the crime was committed and how it may affect the likelihood –- that the fact that they had that prior crime, what -- does that affect the likelihood that they are telling the truth or not.

You should also consider the facts and the circumstances of this case on whether or not, given what is at stake here in this case, that crime has any impact on whether or not they’re telling the

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truth. You may conclude -- basically, you can give the evidence whatever weight you think it deserves.

N.T., 11/12/21, at 153-55.

Regarding crimes of aggression, the court told the jury:

The last way a conviction of criminal record can affect a witness’ –- whether you want to rely on a witness or –- I’m sorry –- a witness’ testimony –- is –- or a criminal case –- is if the witness is convicted of a crime of aggression.

This is a case of –- where force was used. Everybody has conceded force was used and that -– they have argued who is the one who initiated the force. The Commonwealth has argued that the defendant initiated the initial dispute but –- ultimately, you are going to have to decide what happened at the time of the shooting, but the Commonwealth has argued that Justin Hill was the aggressor –- I’m sorry.

The defendant has argued that Justin Hill was the aggressor. The Commonwealth has argued that the defendant was the one who started the physical and verbal aggression.

You are going to have to make a decision about –- you may feel the need to make the decision about who started that whole thing. In considering that, you may consider that Justin Hill had been convicted of robbery in 2011, robbery in 2012 or had crimes that arose in 2011, 2012, and a prior aggravated assault conviction. You may consider those three convictions in determining whether or not you believe Justin Hill was the aggressor.

In deciding whether you -- whether that has any impact on your view of whether Justin Hill was aggressive and whether he was the aggressor, you should consider again the same factors I mentioned before.

How long ago was that criminal offense? Were the facts that you heard about the criminal offense -- were they similar to what happened here or were they not similar to what happened here? Does the fact that he engaged in that conduct at that point -- in any way similar to what he is alleged to have done here? Does it have an impact on whether you believe, because he did that, therefore he must be the aggressor here?

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That’s again for you to decide, but it is admissible evidence for that purpose and you may consider it for that purpose.

But I will tell you what you can’t do. There’s two very important things you can’t do. The defendant was not aware of any of this. There’s no evidence the defendant was aware of any of this at the time of the events on trial, so that can have no impact on your view about what he thought was necessary to protect himself, if that’s what you are evaluating. So you may not use it in evaluating what the defendant thought because there’s no evidence that he was aware of any of that -- of any of those convictions.

The other thing that’s very important for you to understand is this: We have procedures and rules that go on and on and on and there’s a reason for it.

We don’t smear people. People are not to be disregarded because they have a criminal record. What we do allow is that if your criminal record demonstrates a particular quality like dishonesty or a particular quality like aggressive behavior, then it is appropriate for a jury to hear about that and consider that for that purpose, but what you can’t do is say: Well, I don’t like that person and so therefore I am going to do -- whatever it is you want to do -- because you are unhappy that the person has a criminal record or you don't like the person or you don’t -- that, you cannot do.

Id. at 158-61.

The court did not excuse the prior bad acts of the Hill brothers or

diminish their relevance. The court properly advised the jury that if a criminal

record demonstrates dishonesty or aggression, then the jury can consider it

for that purpose when deciding the instant case. It also cautioned the jury

that it could not decide the case based on a general bias against persons with

criminal records. The court did not abuse its discretion.

B. Involuntary Manslaughter

Jones next contends that the court erred in refusing his request to

instruct the jury regarding involuntary manslaughter. Jones asserts there was

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evidence indicating he was “intoxicated, had been beaten to unconsciousness

and was in an extremely chaotic situation, in a dark wooded area, in the

middle of the night.” Jones’s Br. at 85. Jones argues this evidence would have

allowed a jury to conclude that he was grossly negligent in firing the firearm.

A defendant is only entitled to a jury charge on a lesser-included offense

where the evidence would support a verdict of guilty on the lesser-included

offense. Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa.Super. 2008).

Thus, “a homicide defendant is entitled to a charge on involuntary or voluntary

manslaughter only if the evidence adduced at trial would reasonably support

a verdict on such a charge.” Commonwealth v. Soltis, 687 A.2d 1139, 1141

(Pa.Super. 1996).

Evidence supports an involuntary manslaughter instruction where it

“tends to show that [the defendant] acted recklessly or with gross negligence

in causing [the victims’] death.” Id.; see also 18 Pa.C.S.A. § 2504(a)

(defining involuntary manslaughter). A person acts “recklessly” when he

“consciously disregards a substantial and justifiable risk” that a material

element of the offense exits or will result from his conduct, and the disregard

of the risk “involves a gross deviation from the standard of conduct that a

reasonable person would observe in the actor's situation.” 18 Pa.C.S.A. §

302(b)(3). A person acts “negligently” when he “should be aware of a

substantial and unjustifiable risk” caused by his actions but fails to perceive

it, and the failure “involves a gross deviation from the standard of care that a

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reasonable person would observe in the actor's situation.” 18 Pa.C.S.A. §

302(b)(4).

Here, not only did multiple witnesses testify that Jones intentionally shot

the victims, but Jones himself also testified that he shot Braxton because

Braxton was trying to grab him, and that he fired at Hill and his sons because

they were running towards him. See N.T., 11/10/21, at 90, 113. He conceded

that he aimed the gun intending to hit his targets. Id. at 117-19. The evidence

does not support the theory that Jones shot the gun recklessly or negligently.

We find no abuse of discretion.

VII. Sufficiency of the Evidence

In Issue H, Jones argues the evidence was insufficient to support the

verdict because the Commonwealth did not offer evidence that could disprove

his self-defense claim beyond a reasonable doubt. He alleges the evidence

establishes that he was attacked and badly beaten, tried to escape, was

attacked a second time, and feared for his life when he fired the shots that

killed the victims.

We review this issue pursuant to the following standard.

To determine the legal sufficiency of evidence supporting a jury’s verdict of guilty, this Court must view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged has been established beyond a reasonable doubt. It is the function of the jury to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The jury is free to believe all, part or none of the evidence introduced at trial. The

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facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence, but the question of any doubt is for the jury unless the evidence be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Hoffman, 198 A.3d 1112, 1118 (Pa.Super. 2018)

(quoting Commonwealth v. Feathers, 660 A.2d 90, 94-95 (Pa.Super.

1995)).

Self-defense is an affirmative defense defined by Section 505 of the

Crimes Code. That section provides that “[t]he 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.” 18 Pa.C.S.A.

§ 505(a). However, the use of deadly force is not 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.” Id. at § 505(b)(2). Thus, self-defense is a complete defense when

the evidence establishes,

[(1) The d]efendant 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;

[(2) The d]efendant was free from fault in provoking the difficulty which culminated in the slaying; and

[(3) The d]efendant did not violate any duty to retreat.

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Commonwealth v. Knox, 219 A.3d 186, 196 (Pa.Super. 2019) (quoting

Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012)).

It is the Commonwealth’s burden to disprove a claim of self-defense

beyond a reasonable doubt. Id. The Commonwealth need only disprove one

element of a self-defense claim. Mouzon, 53 A.3d at 740-41. Because the

defendant must have reasonably believed the use of force was necessary, the

defendant must not have employed greater force than reasonably necessary.

Commonwealth v. Truong, 36 A.3d 592, 599 (Pa.Super. 2012) (en banc).

The trial court offered the following analysis of Jones’s sufficiency

challenge:

The entire incident began with an act of domestic violence perpetrated by [Jones] against his girlfriend. It continued with [Jones’s] physical act of aggression against Arthur Hill who had merely attempted to peacefully intervene. When Mr. Hill’s son punched him in response, [Jones] escalated the violence by threatening all of those present. [Jones], given the opportunity to cool off, chose not to remain in his girlfriend’s vehicle or to retreat from the campsite, but rather chose to retrieve his handgun and shoot at unarmed campers, killing two of them. The physical evidence and eyewitness testimony established beyond a reasonable doubt that [Jones] was not severely beaten by multiple individuals and that at the time [he] discharged his weapon, none of the campers posed a threat to his safety. Given this sequence of events the Commonwealth’s evidence was more than sufficient to prove beyond a reasonable doubt that [Jones] (1) did not reasonably believe that force was necessary to protect himself against death or serious bodily injury; (2) was not free from fault in provoking the use of force against him; and (3) violated his duty to retreat.

Trial Ct. Mem. Op. at 80.

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Viewed in the light most favorable to the Commonwealth, the evidence

was sufficient to disprove the self-defense claim. The Commonwealth

presented evidence that Jones provoked the campers’ initial use of force

against him, justifying their decision to isolate him in the car; announced the

campers were “going to pay”; could have waited safely in the car, but instead

reapproached the camp-ground; shot Braxton even though Braxton had

approached him in a non-violent manner; and then traveled 66 feet into the

campground to shoot Hill, who was running away. Viewed in the light most

favorable to the Commonwealth, this evidence establishes that Jones

provoked the confrontation, escalated it when he could have retreated, and

used a greater amount of force than was reasonably necessary. The sufficiency

claim fails.

VIII. Weight of the evidence

In Issue J, Jones argues the guilty verdicts were against the weight of

the evidence. He claims that the testimony that he sustained his injuries from

one punch was so inconsistent with the evidence of his physical injuries as to

shock one’s sense of justice. He argues he presented scientific evidence that

he had a broken jaw, swelling of his face and scalp, and a laceration of his lip.

Jones claims he also had numerous fractures to his foot that an expert opined

were the result of direct trauma and could not have occurred solely as the

result of twisting. Jones claims this inconsistency proves the eyewitness

testimony was not credible and that the campers were downplaying the harm

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they did to him that night. Jones also argues Justin’s and Brandon’s criminal

records prove they were not credible witnesses.

Jones argues that in contrast, he credibly testified as to how he

sustained his injuries and why he was afraid for his safety. He also points out

that he presented six character witnesses who testified to his

peacefulness/non-violence, which, alone, raised a reasonable doubt as to his

guilt. He claims that the testimony of his reputation for peacefulness and his

credible account is “so clearly of greater weight than the inconsistent and

incredible testimony of the Commonwealth witnesses, that to ignore it or to

give equal weight with other facts is to deny justice.” Jones’s Br. at 111; see

id. at 114.8

A challenge to the weight of the evidence “concedes that there is

sufficient evidence to sustain the verdict but claims 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.’”

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.Super. 2003) (quoting

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)). Because

weighing the evidence is the task of the jury, a trial court may grant a new

trial only where the verdict “is so contrary to the evidence as to shock one’s

8 Although the court sheet for November 9, 2021, indicates that Jones presented additional medical evidence and character witnesses on that date, Jones does not rely on any of this evidence to support his weight claim. See note 2, supra.

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sense of justice.” Commonwealth v. Clemens, 242 A.3d 659, 667

(Pa.Super. 2020) (citation omitted).

Importantly, our review of the trial court’s denial of a weight claim is

limited to assessing the decision for an abuse of discretion:

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination [of whether] the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Commonwealth v. Bright, 234 A.3d 744, 749 (Pa.Super. 2020) (quoting

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)).

The trial court offered the following reasoning for its denial of the weight

claim.

The evidence introduced at trial overwhelmingly established that [Jones] did not act in self-defense, that he was not free from fault in provoking the use of violence against him, that he did not believe that deadly force was necessary to protect himself against death or serious bodily injury, and that he violated his duty to retreat. Contrary to [Jones’s] assertions, the eyewitnesses were consistent with each other and were corroborated by the physical evidence documented at the scene and by the evidence regarding [Jones’s] injuries. All of the eyewitnesses testified that [Jones] was the initial aggressor. They all testified that [Jones] was struck only once. They all testified that, after the initial incident in front of Kristen Wright’s tent ended, there were no acts of aggression toward [Jones] and that there was nothing preventing him from leaving the campsite. [Jones’s] injuries and, more importantly, the lack of injury to his person beyond that which would have occurred as a result of his having been punched and or which could

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have occurred as a result of his many falls as he ran from the scene, was, standing alone, sufficient to disprove [Jones’s] claim that he was beaten, kicked, and stomped by multiple individuals as he lay unconscious on the ground. In light of this evidence, the jury’s verdict cannot be said to have been “so contrary to the evidence as to shock one’s sense of justice.”

Trial Ct. Mem. Op. at 51-52.

The court did not abuse its discretion in rejecting the weight claim. The

jury was free to disregard Jones’s testimony and that of his character

witnesses, especially given the number of substantially similar eyewitness

accounts and the evidence that he traveled 66 feet after shooting Braxton

before shooting Hill in the back.

Nor does the medical testimony in this case undermine the eyewitness

accounts of how Jones sustained his injuries or corroborate Jones’s account

such that justice demands a new trial. Although Jones argues the injuries to

his head could not have been caused by a single punch, he has already pointed

out that Justin has a history of knocking people out with a single punch. See

Section I.A., supra. Justin testified that he injured his hand when punching

Jones. See N.T. 11/4/21, at 107, 110. Wright also testified that when Hill

confronted Jones, Hill “probably” hit Jones before Justin hit him. See N.T.,

11/5/21, at 24-25. The jury was free to accept any this testimony when

considering how Jones sustained his head injuries.

Regarding Jones’s foot injuries, although Dr. Daniel testified that at least

a portion of the fractures were caused by direct trauma as opposed to twisting,

he did not testify about the circumstances in which the injury occurred. See

N.T., 11/10/21, at 38-39. Multiple eyewitnesses testified that Jones fell to the

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ground after Justin punched him. Jones himself testified that his ankle buckled

when he left the car and that he fell as he ran after firing the shots. See id.

at 89, 92; see also id. at 82 (Jones testifying that he weighs 205 pounds).

The jury was free to reject Jones’s suggestion that these injuries could only

have occurred during a brutal and unprovoked assault by the campers.

IX. Sentencing

Finally, in Issue I, Jones alleges the court abused its discretion in

imposing sentence.

We cannot address a challenge to discretionary aspects of a sentence

unless it raises a substantial question. Commonwealth v. Lynch, 242 A.3d

339, 346 (Pa.Super. 2020).9 “A substantial question exists when the appellant

makes a colorable argument that the sentencing judge’s actions were either

inconsistent with a specific provision of the Sentencing Code or contrary to

the fundamental norms underlying the sentencing process.” Id. In assessing

whether Jones has raised a substantial question, we review only the Rule

2119(f) statement and the statement of questions presented. See

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012); see

also Pa.R.A.P. 2119(f).

In his Rule 2119(f) statement, Jones claims the court’s imposition of

consecutive sentences on each count was unduly harsh and a result of the

9 A discretionary sentencing claim must also be preserved in the trial court,

raised in a timely appeal, and included in a Pa.R.A.P. 2119(f) statement. See Lynch, 242 A.3d at 346. These requirements are met here.

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court’s reliance upon “improper factors.” Jones’s Br. at 19-20. Jones also

states that the court did not state its reasons for imposing sentences

exceeding the aggravated range of the sentencing guidelines, and that it did

not consider his age, his history, and his rehabilitative needs. In his question

presented, Jones suggests his sentence is excessive considering his “personal

circumstances, his character, and the circumstances of the offense.” Id. at

15. These allegations raise a substantial question. See Commonwealth v.

Salter, 290 A.3d 741, 748 (Pa.Super. 2023); Commonwealth v. Dodge, 77

A.3d 1263, 1271-72 (Pa.Super. 2013).

Jones elucidates in the argument section of his brief that he contends

the court improperly gave undue weight to the gravity of his crimes, which

was already accounted for by the sentencing guidelines. See Jones’s Br. at

98-99. Jones further argues that the court failed to meaningfully consider the

character witnesses he presented at sentencing. He asserts the court

disregarded their testimony and told them, “The man you’re describing is not

the man he is.” Id. at 96-97 (citing N.T., 11/18/21, at 124). Jones also argues

that the court failed to consider the sentencing guidelines. Id. at 98-99.10

Finally, Jones contends the court improperly considered his failure to apologize

in allocution when he had a fifth amendment right to abstain from allocution.

10 We note this argument differs slightly from the argument Jones raises in his

Rule 2119(f) statement, that the court failed to state its reasoning for departing from the guidelines.

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See id. at 97-98 (citing N.T., 11/18/21, at 138-40; Mitchell v. U.S., 526 U.S.

314, 327 (1999)).11

We apply the following standard of review to these claims.

We will not disturb a sentence absent an abuse of discretion. Trial courts have broad discretion over sentencing because they are in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Goodco Mech., Inc., 291 A.3d 378, 405 (Pa.Super.

2023) (quotation marks and citations omitted). We give great deference to

the trial court, “as [it] is in the best position to measure factors such as the

nature of the crime, the defendant’s character, and the defendant’s display of

remorse, defiance, or indifference." Commonwealth v. Mouzon, 828 A.2d

at 1128.

The Sentencing Code requires the trial court to “follow the general

principle that the sentence imposed should call for total confinement that is

consistent with section 9725 (relating to total confinement) and the protection

of the public, the gravity of the offense as it relates to the impact on the life

of the victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S.A. § 9721(b). The court may impose a sentence of total ____________________________________________

11 Jones abandons his argument that the court failed to consider his age. Jones

argues the court failed to consider his history and rehabilitative needs but does not explain what aspect of his history or rehabilitative needs the court failed to consider. We find these claims waived for lack of development.

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confinement “if, having regard to the nature and circumstances of the crime

and the history, character, and condition of the defendant,” it finds

confinement necessary because (1) there is an undue risk that the defendant

will commit another crime if subject to lesser restrictions, (2) a correction

institution can provide needed treatment, or (3) “a lesser sentence will

depreciate the seriousness of the crime of the defendant.” Id. at § 9725. The

court must also consider the sentence ranges suggested by the sentencing

guidelines. Id. at § 9721(b); see 204 Pa.Code §§ 303.1–303.18(c). It must

state the reasons for the sentence imposed at the time of sentencing. 42

Pa.C.S.A. § 9721(b); Pa.R.Crim.P. 704(C)(2).

This Court will vacate a sentence falling outside the guidelines if it is

unreasonable. 42 Pa.C.S.A. § 9781(c). “The term ‘unreasonable’ generally

means a decision that is either irrational or not guided by sound judgment.”

Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.Super. 2011). A sentence

can be deemed unreasonable either upon review of the elements contained in

Section 9781(d)—(1) “the nature and circumstances of the offence and

characteristics of the defendant,” (2) the sentencing court’s opportunity to

observe the defendant, (3) the findings of the sentencing court, and (4) the

sentencing guidelines—or “if the sentencing court failed to take into account

the factors outlined in 42 Pa.C.S.A. § 9721(b).” Id. “Our scope of review is

plenary, and we may review the entire record.” Goodco Mech., Inc, 291 A.3d

at 405.

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First, Jones’s claim that the court failed to consider the sentencing

guidelines is belied by the record. The court stated at sentencing that it had

reviewed the guidelines. See N.T, 11/18/21, at 3; see also id. at 112-13

(Commonwealth stating the guidelines ranges).

We also reject any contention that the court failed to state its reasoning

for the sentences. The court placed extensive reasoning on the record. See

id. at 123-48. In sum, the court stated it based the sentence on Jones’s lack

of remorse, “the horrible circumstances and the facts of this case,” and “the

impact the crimes have had on the victims [and] the victims’ families.” Id. at

137-40, 140, 141.

We likewise find no merit to Jones’s argument that the court failed to

meaningfully consider the character witnesses. The court heard both the

character testimony of 11 witnesses and the victim impact statements of 14

witnesses. Id. at 5-65, 67-107. After argument, the court addressed the

character witnesses, stating, “What I don’t understand is that the man you

are describing is not the man he is.” Id. at 124. The court then recounted the

impact of the crimes on the victims’ families. Then it addressed the character

witnesses again, saying,

I don’t understand how a man who – and I believe your testimony. I am accepting your testimony presented by the defense because I find it to be credible.

I don’t understand how a man who was helping these women through domestic crisis and domestic violence goes to a campsite and engages in that exact same conduct.

Id. at 125 (emphasis added). The court also said,

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The version this defendant has sold you on, because I assume you all are believe [sic] whatever he said, because you are close friends, has nothing to do with the truth. I know you haven’t seen the evidence. I know you haven’t seen the police reports. I know you haven’t seen all of the photographs, but his story is false.

Id. at 126-27. The court went on to recount for the character witnesses the

facts of the crime and the evidence disproving Jones’s version of events. Id.

at 127-40. Within this recitation, the court stated, “I don’t know how he

treated his students, but he didn’t treat Eric Braxton like a human being, the

human being that he was.” Id. at 133. Later, the court pondered, “Can you

just be that one person in the moment and be somebody else all of the other

time? And I don’t know.” Id. at 138.

The court’s statements reflect that the court meaningfully considered

the testimony of the character witnesses but found their testimony did not

reflect Jones’s character on the night of the shooting and did not outweigh the

heinousness of his actions or its impact on the victims.

We also disagree with Jones’s assertion the court was unable to consider

the gravity of Jones’s crimes because this factor was contemplated by the

guidelines. A court may consider the gravity of the offense when deciding

whether to depart from the sentencing guidelines if the case “is compellingly

different from the ‘typical’ case of the same offense,” or if the information

reflects upon the defendant’s character. Commonwealth v. Robertson, 874

A.2d 1200, 1213 (Pa.Super. 2005). Furthermore, a court does not abuse its

discretion so long as it has other reasons to deviate from the guidelines.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006); see,

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e.g., Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.Super. 2008)

(finding even if court had considered factors going to the gravity of the offense

when upwardly departing from the guidelines, the court recited proper factors

it took into consideration, such as impact of the crime on the relatives of the

victim).

Here, the court observed that “this is not the average murder case,”

considering the impact of the crime on the victims’ families. N.T., 11/18/21,

at 141. The court was therefore permitted to consider the egregiousness of

the crime and the impact on the victims when deciding to depart from the

guidelines.

Finally, we address Jones’s argument that the court improperly

considered his failure to apologize in allocution when he had a Fifth

Amendment right to abstain from allocution. At sentencing, the court made

the following statement regarding Jones’s lack of remorse:

[A]nother major factor in my consideration of sentence is – I rarely see a criminal defendant at the time of his crimes. I usually see them afterwards.

I see them – most – now, I see them when we’re in court. They’ve had attorneys. They have been prepared. They come and testify. They thought about it. They know the words to say and how to say them.

But this defendant, because of the bravery of the local police officers running in with an armed subject, an active shooter as it is called, meaning somebody with a gun is shooting and killing people in an uncontrolled environment, where there’s woods and dark and you don’t have any idea, like these people -– these people had no idea. At least this officer was trained and is armed.

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These people are not trained. They’re not armed and they have watched already someone get shot. This defendant, during the middle of that – there cannot be more of a nightmare scenario for human beings to be unarmed where you know – not where you think – you know he’s trying to kill people – are hiding in the woods trying to save themselves, at the same time no doubt wanting with every fiber of their being to go and help someone that they love, but can’t. They’re crying. They’re upset. They’re showing empathy and compassion and fear like human beings do.

And then we come up on the body camera of the responding officer and what is the emotional state of the defendant? Is he crying? Is he in fear? Is he asking who did I kill? Who did I kill? Who did I kill? Are they alive?

No. There was no compassion, no empathy, no remorse. From minute one, it’s about him. I am the victim. I want to talk. Don’t do your job, Officer. I get the attention. Take the time talking to me because I have a story ready. Don’t wipe the blood off my face, he says, because he wants the jury to see it. . . .

Everybody is different and I couldn’t tell with this defendant until I saw – through this entire interaction with him in this courtroom, he has never, at all, ever shown any degree of remorse.

These lovely people behind you, sir, have apologized for the harm you have caused these very decent people on the other side of the courtroom, but you have not. They have acknowledged the pain that you have caused, but you have not. They have acknowledged the pain and heartache that these people are going to experience until the day that they pass on and you have not. You don’t deserve these people.

It amazes me that after all of this time, after all of these years, you have absolutely nothing to say to them. That makes my job very easy.

They deserve better than that. Not that they want to hear any apologies from you, but at least they would like some acknowledgment that the loss of their loved one means something, which apparently it doesn’t to you. You have never -- all of the ranting at the crime scene to the officer, all the ranting at the hospital, all of the court proceedings, all of the testimony, not once, not once.

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And today, you still have nothing to say about the victims behind you and the two men who will never be able to live the rest of their lives, not a word.

Id. at 137-40.

Thus, while the court commented that Jones had never addressed the

victims, it did not make this remark solely within the context of allocution.

See Commonwealth v. Bowen, 975 A.2d 1120, 1127 (Pa.Super. 2009)

(“silence at sentencing may not be the sole basis for finding that a defendant

lacked remorse”). Rather, the court considered Jones’s lack of hesitation or

empathy on the night of the crime, the lack of remorse he displayed

throughout the court proceedings, and the fact that he had not reached out

to apologize to any of the victims who testified prior to the sentencing hearing.

The court did not abuse its discretion when imposing sentence.

Judgment of sentence affirmed.

Date: 3/27/2024

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