Com. v. Jones, C.

J-A25035-21

                                   

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  CARL JONES                                   :
                                               :
                       Appellant               :   No. 938 WDA 2020

      Appeal from the Judgment of Sentence Entered January 23, 2020
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0013282-2018


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

OPINION BY COLINS, J.:                         FILED: December 16, 2021

       Appellant, Carl Jones, appeals from the judgment of sentence imposed

after his conviction of third-degree murder1 at a bench trial. After careful

review, we affirm.

       This case arises out of Appellant’s fatal shooting of another patron

(Victim) at the 1313 Bar in Duquesne, Pennsylvania on the night of August 12

and 13, 2018. Appellant was charged with criminal homicide, possession of a

firearm by a person prohibited, and carrying a firearm without a license. The

possession of a firearm by a person prohibited charge was severed and

charged under a different docket number. Appellant waived his right to a jury




____________________________________________


* Retired Senior Judge assigned to the Superior Court.


1 18 Pa.C.S. § 2502(c).
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trial and all of the charges in both dockets were tried at a bench trial on

October 28, 2019.

      It was undisputed at trial that Appellant shot and killed Victim and the

critical issues were Appellant’s state of mind and whether he acted in self-

defense or in an unreasonable belief that his life was in danger. The

Commonwealth called as witnesses four detectives and a forensic investigator

who investigated the scene of the shooting and the bartender and Victim’s

brother, both of whom were present when the shooting occurred.            The

Commonwealth also played video from the bar’s surveillance system that

showed the shooting and the events before and after the shooting. N.T. Trial

at 58-61, 67-68. Appellant’s counsel stipulated that the surveillance video

was authentic and depicted the events that happened at the 1313 Bar on the

night of the shooting, did not object to the playing of the video, and cross-

examined the detective who had retrieved the video concerning what the video

showed. Id. at 52-69, 154. The Commonwealth did not move for admission

of the video, but the trial court, the Commonwealth, and Appellant all treated

the video as admitted evidence after the Commonwealth rested. Id. at 111,

154-59, 164, 169, 173-75, 177.

      Appellant testified in his own defense and called as a witness the woman

who was with him at the bar, a person that Appellant called his aunt.

Appellant’s counsel played portions of the video in his examination of that

witness and in his closing argument and argued in his closing argument that


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the video showed that Appellant acted in self-defense. N.T. Trial at 119-22,

155-57, 164.

         The trial court found Appellant not guilty of first-degree murder, but

found him guilty of third-degree murder and both firearms offenses. N.T. Trial

at 176-79.      In rejecting Appellant’s claim of self-defense, the trial court

considered and relied on the video that was played at trial. Id. at 177-79;

Trial Court Opinion at 2-3, 7-10.       On January 23, 2020, the trial court

sentenced Appellant to 20 to 40 years’ imprisonment on the third-degree

murder conviction and imposed no further penalty for the carrying a firearm

without a license conviction. N.T. Sentencing at 36-37; Sentencing Order. In

the separate docket, the trial court imposed a consecutive sentence of 31/2 to

7 years for possession of a firearm by a person prohibited. N.T. Sentencing

at 36.

         Appellant filed a timely post-sentence motion seeking to vacate his

third-degree murder conviction on the grounds that the evidence was

insufficient to disprove self-defense and seeking a new sentencing hearing. In

that post-sentence motion, Appellant again asserted that the video was

evidence before the trial court that could be considered in ruling on the

sufficiency of the evidence and noted, without objection, that the trial court

relied on the video in reaching its verdict. Post-Sentence Motion at 3, 5-8.

On August 24, 2020, the trial court denied Appellant’s post-sentence motion.




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       Appellant timely appealed the judgment of sentence in the third-degree

murder case.       In this appeal, Appellant argues that the evidence was

insufficient to support his third-degree murder conviction and that this Court

cannot consider the video recording of the shooting in determining whether

the evidence was sufficient because the video was not admitted in evidence.

       We first address whether the surveillance video played at trial

constitutes evidence that this Court may consider in ruling on Appellant’s

sufficiency of the evidence claim.2 Appellant argues the video is not part of

the evidentiary record in this appeal because no formal motion was made at

trial to admit the video and the trial court did not formally admit it into

evidence. We do not agree.

       Appellant is correct that exhibits that are merely marked for

identification and submitted by the offering party do not constitute evidence

on which a finder of fact can rely. See Department of Transportation,

Bureau of Driver Licensing v. Doyle, 

, 202 n.4 (Pa. Cmwlth.

1992); Denver Nursing Home v. Department of Public Welfare, 

 (Pa. Cmwlth. 1989). Those cases, however, do not hold that


____________________________________________


2 There is no issue of incompleteness of the record or inability of this Court to

view the surveillance video that was played at trial. A disc containing the
video was supplied to this Court as a supplemental record pursuant to a
stipulation of the parties that it contains the video played at trial. Limited
Joint Stipulation ¶¶2-3. This stipulation further states that the parties agree
that the video was not formally admitted into evidence at trial and that
Appellant does not waive his contention that the video cannot be considered
in ruling on the sufficiency of the evidence. Id. ¶¶3-4, 6.

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a recording that was played to the finder of fact after the trial court determined

that the requirements for admission were met is not in evidence simply

because no formal motion was made and granted.

      Here, the video was not merely marked for identification, it was played

to the trial court, the finder of fact, for its consideration as evidence after the

trial court confirmed that Appellant’s counsel stipulated to the video’s

authenticity and relevance. N.T. Trial at 52-53, 58-61. Before the trial court

permitted the Commonwealth to play the video, the following colloquy

occurred:

      MR. ZURISKO [Commonwealth’s Attorney]: Your Honor, at this
      time there is a stipulation to the authenticity of the contents of
      this disc, that it contains the events that happened at the 1313
      Bar on August 12th and the 13th of 2018.
      THE COURT: Do you so stipulate, Mr. Attisano?
      MR. ATTISANO [Appellant’s Counsel]: Yes, Your Honor.
      THE COURT: We’ll accept that stipulation. Are you going to play
      that?
      MR. ZURISKO: Yes, Your Honor.

Id. at 52. Under these circumstances, where the trial court, in fact, made a

determination that the video was admissible before it was played, the video

was in evidence and became part of the record once it was played without

objection, even though no formal motion to admit it in evidence was made.

Although it appears that there is no Pennsylvania precedent addressing this




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situation,3 courts in other jurisdictions have recognized that when a recording

is played to the fact finder for its consideration, the recording is admitted in

evidence and becomes part of the record even if no formal motion is made for

its admission. Cull v. Commonwealth, 

 at *3 (Va. App.

Mar. 28, 2000) (holding that “[i]rrespective of any characterization made by

the trial judge, the contents of the tape were admitted into evidence when the

jury viewed it”); Kennebrew v. State, 

 (Ga. 1996) (defendant

admitted evidence where he played tape recording even though he did not

move the recording into evidence).

       Moreover, Appellant is barred by waiver from contending that the video

cannot be considered.        Where a party does not object to the trial court’s

consideration of items not formally admitted into evidence despite notice that

the trial court viewed the items as evidence on which it could make findings,

the objection to consideration of the unadmitted items is waived. Green v.

Green, 

 (Pa. Super. 2013).         In this case, Appellant not

only failed to object that the video was not admitted and failed to object to


____________________________________________


3 Commonwealth v. Graham, No. 1742 EDA 2018 (Pa. Super. Feb 11, 2019)

(unpublished memorandum), cited by the Commonwealth, is on point and
would support our conclusion that we may consider the video, but it was
decided before May 2, 2019, and therefore cannot be relied upon, even for its
persuasive value. Pa.R.A.P. 126(b); 

(B). The other
cases cited concerning video evidence that was played but not formally
admitted, Commonwealth v. Wroten, 

 (Pa. Super. 2021) and
Commonwealth v. Fretts, 2443 EDA 2019 (Pa. Super. August 14, 2020)
(unpublished memorandum), involved pretrial hearings on the sufficiency of
the Commonwealth’s prima facie case, not a trial.

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J-A25035-21


the trial court’s consideration of it before the trial court’s verdict, he stipulated

to the video’s admissibility and used it in his case and in argument after the

Commonwealth had rested. N.T. Trial at 52, 119-22, 155-57, 164. At no time

during trial, or even in his post sentence motion, did Appellant ever contend

that the video was not part of the evidence before the trial court.

       Appellant did raise the issue that the video was not admitted in evidence

in his Pa.R.A.P. 1925(b) statement after this appeal was filed.          Appellant’s

Concise Statement of Errors ¶¶2, 17(I), (II). That, however, does not change

the fact that the issue was waived.4 Raising an issue for the first time in a

Rule 1925(b) statement is insufficient to prevent waiver of an issue that the

appellant failed to raise while the case was pending in the trial court. Steiner

v. Markel, 

 (Pa. 2009); Commonwealth v. Smith, 

 (Pa. Super. 2019); Commonwealth v. Rodriguez, 

, 1145-46 & nn.6 & 8 (Pa. Super. 2017).

       Because this Court may properly consider the video, we include it the

evidence that we review in evaluating Appellant’s sufficiency of the evidence

challenge. Our standard of review on this issue is well-settled:



____________________________________________


4 Indeed, Appellant’s failure to object at trial to the failure to formally admit

the video deprived the trial court of the opportunity to cure the defect.
Because this was a bench trial, the trial court could have reopened the record
after the Commonwealth had rested to permit the Commonwealth to formally
move the video into evidence if Appellant had raised the issue before the
verdict. Commonwealth v. Safka, 

 (Pa.
2016).

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J-A25035-21


     The standard we apply in reviewing the sufficiency of the evidence
     is whether viewing all the evidence admitted at trial in the light
     most favorable to the verdict winner, there is sufficient evidence
     to enable the fact-finder to find every element of the crime beyond
     a reasonable doubt. In applying the above test, we may not weigh
     the evidence and substitute our judgment for the fact-finder. In
     addition, we note that the facts and circumstances established by
     the Commonwealth need not preclude every possibility of
     innocence. Any doubts regarding a defendant’s guilt may be
     resolved by the fact-finder unless the evidence is so weak and
     inconclusive that as a matter of law no probability of fact may be
     drawn from the combined circumstances. … Finally, the finder of
     fact while passing upon the credibility of witnesses and the weight
     of the evidence produced, is free to believe all, part or none of the
     evidence.

Commonwealth v. Brockman, 

 (Pa. Super. 2017) (quoting

Commonwealth v. Antidormi, 

 (Pa. Super. 2014)).

     To establish the offense of third-degree murder, the Commonwealth

must prove the killing of an individual with malice. Commonwealth v. Knox,

 (Pa. Super. 2019); Commonwealth v. Marquez, 

 (Pa. Super. 2009) (en banc).         Appellant argues that the

evidence was insufficient to prove third-degree murder on two grounds: 1)

that the Commonwealth failed to prove malice and 2) that the Commonwealth

failed to disprove that Appellant acted in self-defense or imperfect self-

defense.

     Malice includes not only particular ill will toward the victim, but also

wickedness of disposition, hardness of heart, wantonness, and cruelty,

recklessness of consequences, and conscious disregard by the defendant of

an unjustified and extremely high risk that his actions may cause serious



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J-A25035-21


bodily harm.   Commonwealth v. Young, 

 (Pa. 1981);

Commonwealth v. Patterson, 

 (Pa. Super. 2018);

Commonwealth v. Devine, 

 (Pa. Super. 2011).

      Self-defense is a complete defense to a homicide charge if 1) the

defendant reasonably believed that he was in imminent danger of death or

serious bodily injury and that it was necessary to use deadly to prevent such

harm; 2) the defendant did not provoke the threat that resulted in the slaying;

and 3) the defendant did not violate a duty to retreat. 18 Pa.C.S. § 505(b)(2);

Commonwealth        v.   Sepulveda,    

   (Pa.   2012);

Commonwealth v. Mouzon, 

 (Pa. 2012); Knox, 

. Where the defendant has introduced evidence of self-defense, the

burden is on the Commonwealth to disprove the self-defense claim beyond a

reasonable doubt by proving that at least one of those three elements is

absent. Sepulveda, 

; Knox, 

; Patterson,

. If the Commonwealth proves that the defendant’s belief

that deadly force was necessary was unreasonable but does not disprove that

that the defendant genuinely believed that he was in imminent danger that

required deadly force and does not disprove either of the other elements of

self-defense, the   defendant may be        found guilty only of voluntary

manslaughter under the defense of imperfect self-defense.         18 Pa.C.S. §

2503(b); Sepulveda, 

; Commonwealth v. Truong, 

 (Pa. Super. 2012) (en banc).


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J-A25035-21


     The finder of fact is not required to believe the defendant’s testimony

that he thought that he was in imminent danger and acted in self-defense.

Commonwealth        v.   Houser,    

   (Pa.   2011);

Commonwealth        v.   Carbone,    

   (Pa.   1990);

Commonwealth v. Chine, 

 (Pa. Super. 2012). Disbelief

of the defendant’s testimony, however, is not sufficient to satisfy the

Commonwealth’s burden to disprove self-defense absent some evidence

negating self-defense. Commonwealth v. Torres, 

 (Pa.

2001); Commonwealth v. Ward, 

 (Pa. Super. 2018).

     The evidence at trial concerning the shooting and the events leading up

to the shooting was as follows.

     The bartender testified that Appellant was at the bar with a woman and

got into an argument with another patron, that Victim and his brother then

began arguing with Appellant, and that Victim approached Appellant in a

threatening manner and threatened Appellant. N.T. Trial at 26-27, 34-36.

The bartender testified that Appellant then walked away and started to leave

the bar, but that he came back into the bar at the urging of the woman he

was with, that he and Victim got into an argument, and that “the next thing I

know, I heard gunshots.” Id. at 27-28, 36-39. She testified that she saw

Victim reach into his back pocket, but could not recall whether Victim

approached Appellant when he came back into the bar.            Id. at 38.   She

testified that the gun shots occurred immediately after she saw Victim reach


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J-A25035-21


into his back pocket. Id. at 39, 41. The bartender also testified that the 1313

Bar is a dangerous bar and that everyone there carries a gun. Id. at 29, 32-

33, 39. She testified, however, that she did not see any gun on Victim the

night that he was killed and hadn’t ever seen him with a gun. Id. at 33, 43.

      Victim’s brother testified that after an argument in the bar, Appellant

walked out of the bar and that Victim said "oh, man, go ahead." N.T. Trial at

73-74. Victim’s brother testified that Appellant then came back in and shot

Victim. Id. at 74-75, 84. The only items found on Victim were a cell phone,

a wallet, and keys. Id. at 104.

      The woman who was with Appellant at the bar testified that Appellant

was involved in an argument with a person unconnected to Victim and that

Victim told Appellant to leave that person alone or “I'll beat the fuck out of

you, dumbass.” N.T. Trial at 117-18, 127-29, 131-32. This witness testified

that Appellant then walked away, but that she spoke to him at the doorway

of the bar and told him not to worry about Victim and “[j]ust let it go,” and

that Victim was her cousin and was probably drunk.          Id. at 119-22.    She

testified that when Appellant came back into the bar, Appellant and Victim

were not near each other and that Victim said to Appellant, “[Y]ou need to

leave people alone. I ain’t messing with you.”        Id. at 123-24, 130.     This

witness also testified that all of the altercations before the shooting were solely

verbal and that she helped treat Victim’s wounds after he was shot and saw

no gun on Victim. Id. at 125, 128-29.


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J-A25035-21


      Appellant testified that at the bar on the night of the shooting, Victim

threatened several times to “fuck me up.” N.T. Trial at 141-42. Appellant

testified that in response, he walked away and out the door of the bar, but

came back into the bar because the woman with him and another person told

him that the situation was resolved. Id. at 143. Appellant testified that when

he came back in, he saw Victim “launch towards me with his hand in his

pocket” and heard Victim say “[s]omething about fucking me up and that type

of stuff.” Id. at 143-44. Appellant testified that he saw Victim pull a shiny

object from his pocket and that in response, he pulled out his gun and shot

Victim because he was in fear for his safety. Id. at 144-45.     Appellant did

not dispute that he fired five shots at Victim and that he fired the fifth shot

when Victim was on the floor, but contended that he was still in fear for his

safety when he fired all of the shots. Id. at 145-46.

      The video, which contained no audio recording, showed the following

actions and events at the 1313 Bar on the night of the shooting. Appellant

walked over to another patron and appeared to be talking angrily to him and

then argued with Victim, who was initially seated at the bar several chairs

away from Appellant. Victim stood up while he and Appellant were arguing

and Appellant walked away and out of the bar. The woman who came to the

bar with Appellant and another patron went to the door and talked to Appellant

and he came back into the bar with them. While Appellant was leaving the

bar and outside, Victim walked back and forth in the bar. As Appellant came


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J-A25035-21


back into the bar, Victim was walking slowly toward the door, but was not

near the door, and appeared to be shouting in the direction of the door. Victim

put his left hand in the left front pocket of his pants, pulled out what appears

to be a cell phone, moved it to his right hand, and put it in his right back pants

pocket. Appellant then lunged forward, pushing against and reaching over

the woman he was with, who was trying to restrain him, and fired a gun at

Victim while Victim’s hands were empty and at his side. Appellant fired the

gun at Victim multiple times in rapid fire succession and did not stop shooting

as Victim fell to the floor. Appellant then walked out the door of the bar.

      The above evidence was clearly sufficient to show malice as it shows

that Appellant intentionally fired a gun directly at Victim. Evidence that the

defendant intentionally fired a gun directly at a person is sufficient to show

malice. Young, 

; Knox, 

; Patterson,

; Devine, 

. The fact that the victim had been

in an altercation with the defendant before the shooting does not preclude a

finding of malice. Young, 

; Patterson, 

-

23, 1230.

      This evidence was also sufficient to disprove Appellant’s self-defense

and imperfect self-defense claims. From the video, the trial court could find

that Appellant did not believe that Victim was threatening him with a weapon,

as the video shows that the object Victim took out was a cell phone, not a

weapon, and that Victim had put it away and had nothing in his hands when


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J-A25035-21


Appellant began shooting. Moreover, it can be concluded from the video that

Appellant was acting out of anger and not fear when he fired the gun, as

Appellant was lunging toward Victim, was trying to get to Victim despite efforts

to keep him away from Victim, was not ducking or taking any evasive action,

and calmly walked out of the bar after the shooting.

      Several other items of evidence also negate Appellant’s claims of self-

defense and imperfect self-defense. No weapon of any kind was found on

Victim and no witness saw any weapon on Victim. N.T. Trial at 33, 43, 104,

125. The threats that the witnesses testified that Victim had made did not

involve use of a firearm or other weapon that could harm Appellant from a

distance and Victim was not close to Appellant when Appellant shot him. Id.

at 117-18, 123-24, 129, 131-32, 141-44.          The testimony of all of the

witnesses, including Appellant himself, also showed that Appellant had been

able to retreat with complete safety by leaving the bar after Victim had

threatened him and that he chose to return to the bar. Id. at 36, 74, 84, 119,

122, 143. Proof that the defendant was able to safely retreat is sufficient to

satisfy the Commonwealth’s burden of disproving both self-defense and

imperfect self-defense. 18 Pa.C.S. § 505(b)(2)(ii); Truong, 

;

Commonwealth v. Ventura, 

 (Pa. Super. 2009).

Moreover, there was evidence that what Victim said to Appellant when

Appellant returned to the bar was non-threatening. N.T. at 130.




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J-A25035-21


     Because the evidence at trial was sufficient to prove malice and to

disprove Appellant’s claims of self-defense and imperfect self-defense,

Appellant’s lone claim of error in this appeal is without merit. We therefore

affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2021




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