Com. v. Page, M. ( 2020 )


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  • J-S44021-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                       :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    :
    v.                                   :
    :
    :
    MERLE ALAN PAGE, JR.                               :
    :
    Appellant                   :     No. 46 WDA 2019
    Appeal from the Judgment of Sentence Entered February 21, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
    CP-25-CR-0001439-2017
    BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY McLAUGHLIN, J.:                                   FILED FEBRUARY 3, 2020
    Merle Alan Page, Jr. appeals from the judgment of sentence entered
    following   his        jury-trial   conviction   for       third-degree   murder, recklessly
    endangering another person (“REAP”), possessing instruments of crime
    (“PIC”), and firearms not to be carried without license.1 He maintains the trial
    court should have given a voluntary manslaughter jury instruction and that
    the court failed to award him credit for time served. We conclude the trial
    court did not err in denying his request for a voluntary manslaughter
    instruction. However, we vacate the sentencing order and remand for the trial
    court to determine whether Page is entitled to credit for time served.
    ____________________________________________
    1   18 Pa.C.S.A. §§ 2502(c), 2705, 907, and 6106(a)(1), respectively.
    J-S44021-19
    The facts and procedural history of this case are as follows. Following a
    shooting at a Shell gas station, police arrested and charged Page, and he
    proceeded to a jury trial.
    At trial, Page’s cousin, Shawnquel Pennamon, testified that he was with
    Page on the night of the shooting. According to Pennamon’s testimony, after
    attending a party for their grandmother, he, Page, and Deonte Duck went to
    the Off-the-Wall Bar. Pennamon said he and Page were drinking, and they
    “pop[ped] a Molly,” which was a party drug that gave an energy boost. N.T.,
    1/8/18, at 100-01. They then travelled to a bar named Marty’s, but were
    unable to enter because a fight had occurred inside the bar. Id. at 103-04.
    The trio stopped at the Shell station and bought cigars. After they left, they
    realized that they forgot to purchase gas, so they returned to the Shell station.
    Id. at 110.
    Pennamon testified that when they returned, the victim, Marcell
    Flemings, was in a car at the gas station. The victim had been sprayed with
    mace during the fight at Marty’s. Pennamon stated that at first Page and Duck
    were attempting to assist the victim. Id. at 111-12. An argument then broke
    out. He testified that he could not hear much of the argument, but believed
    he heard the victim say something about someone’s brother. Id. at 112. He
    further stated the fight was about “[a] baby mom or something.” Id. at 112-
    13. Pennamon testified that the video showed the victim taking off his coat
    and walking toward Page. Id. at 141. Pennamon said Page took a swing at
    the victim, and people tried to break up the fight. Id. at 113. Pennamon saw
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    Page headed back to the car, and the victim started walking to the same
    vehicle. Id. at 143. As Pennamon was headed back to the driver seat, he
    heard a gun shot. Id. at 115. Pennamon, Page, and Duck drove away, and
    then abandoned the vehicle and fled on foot. Id. at 120.
    A store clerk from the Shell gas station, Sean Price, testified that he saw
    the argument and that the only statement he heard was the victim’s last
    words, which were, “[W]hat are you going to do, shoot me?” Id. at 162-63.
    Police officers who investigated the shooting also testified, and the
    prosecution put into evidence a copy of surveillance video from the Shell
    station, depicting the events. In defense, Page presented the testimony of his
    girlfriend, Adejah Pacley, who was not at the Shell station at the time of the
    shooting.
    Page asked the court t instruct the jury on voluntary manslaughter,
    arguing that Page shot the victim in the heat of passion and did not have an
    opportunity to cool down. Id. at 217. The trial court denied the request,
    finding the evidence did not warrant the instruction:
    I think it would make a mockery of the crime of voluntary
    manslaughter, because the video clearly shows [the victim
    is] disabled when he’s first there, he can’t even see. He’s
    walking around, some people are guiding him. Your client is
    well aware of that. Your client is standing there watching
    him put milk on his face and knows that[] he’s not a harm,
    you know, he’s not armed. Doesn’t – put it this way, there’s
    no arms there at all. There’s nothing going on at that point
    and he was in no condition to present a threat to anybody
    at that point.
    Now, when he comes out of . . . the convenience store,
    obviously his eyesight is better and the video speaks for
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    itself that they get into a verbal argument. But a verbal
    argument in and of itself is not a basis for heat of passion.
    And in fact, in all of this – and you’re correct . . . in your
    analysis – all this is undisputed.
    Then your client basically rushes the guy. I mean it’s clear
    that he’s the one who rushes the guy and that’s when they
    have the physical altercation. So he’s not afraid of him at
    that point. Rushes him, it looks like he’s getting the better
    of him basically, does some back pedaling and then they go
    out of the picture.
    So then they come back into the picture. Your client is over
    by his car, has the opportunity to leave in the car. Granted,
    and I know you’re going to make this argument, but he
    starts to come forward, [the victim]; but there’s also people
    trying to intervene and there’s no reason under those
    circumstances for your client to go get the gun and come
    out and shoot. Especially – let’s just say hypothetically there
    was heat of passion for him to go get a gun, but you get a
    gun and here’s a guy standing in front of you and in a well
    lit area with his arms out and has no weapons and you’re
    shooting the unarmed man at close range with other people
    around and you shoot multiple times. I don’t see that as
    heat of passion.
    N.T., 1/9/18, at 4-6.
    The jury found Page guilty of third-degree murder, REAP, PIC, and
    firearms not to be carried without a license. The trial court sentenced Page to
    240 to 480 months’ incarceration for third-degree murder, 12 to 24 months’
    incarceration for REAP, 14 to 28 months’ incarceration for PIC, and 42 to 84
    months’ incarceration for firearms not to be carried without a license. The
    sentences were imposed consecutive to each other. The court did not give
    Page credit against the sentence for time served in jail pending trial. Rather,
    it stated on the record that it would give the credit against sentences it was
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    imposing in two separate cases2 in which it was revoking parole. N.T.,
    2/21/18, at 42.
    Page filed a motion to reconsider/modify sentence, which the trial court
    denied. Page did not file a notice of appeal, but did file a timely petition
    pursuant to the Post Conviction Relief Act seeking reinstatement of his direct
    appeal rights nunc pro tunc. The trial court re-instated his direct appeal rights,
    and Page filed this appeal.
    Page raises the following issues:
    1. Did the trial court commit an abuse of discretion and/or
    error of law when it denied the defense’s request for an
    instruction on voluntary manslaughter (heat of passion)?
    2. Did the trial court err when it failed to award all of the
    credit for the time [Page] served after his arrest on this
    docket until his sentencing (i.e. January 27, 2017 to
    February 21, 2018)?
    Page’s Br. at 7 (suggested answers omitted).
    Page first argues that the evidence admitted at trial supported a heat of
    passion jury instruction. He argues that the victim started the argument, made
    reference to his brother and/or a “baby mama,” took off his coat as if to fight,
    and followed Page.
    The trial court did not err in finding the instruction not warranted. A trial
    court should instruct as to “heat of passion” voluntary manslaughter “only
    where the offense is at issue and the evidence would support such a verdict.”
    Commonwealth v. Sanchez, 
    82 A.3d 943
    , 979 (Pa. 2013) (quoting
    ____________________________________________
    2   Docket numbers CP-25-CR-0002700-2017 and CP-25-CP-0002515-2016.
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    Commonwealth v. Montalvo, 
    986 A.2d 84
    , 100 (Pa. 2009)). To support a
    voluntary manslaughter verdict, “the evidence would have had to demonstrate
    that, at the time of the killing, [a]ppellant acted under a sudden and intense
    passion resulting from serious provocation by the victim.” Id. (quoting
    Montalvo, 986 A.2d at 100) (alteration in original). To determine “whether
    there was sufficient provocation to create uncontrollable passion in a
    reasonable person, we determine whether the killer actually acted in the heat
    of passion, whether the provocation [led] directly to the slaying of the person
    responsible for the provocation, and whether the killer had sufficient cooling
    off time.” Commonwealth v. Martin, 
    5 A.3d 177
    , 186 (Pa. 2010). We will
    reverse a trial court’s decision to deny a requested jury instruction “only when
    it abused its discretion or committed an error of law.” Commonwealth v.
    Baker, 
    24 A.3d 1006
    , 1022 (Pa.Super. 2011) (quoting Commonwealth v.
    Galvin, 
    985 A.2d 783
    , 798–99 (Pa. 2009)).
    Here, there was evidence that the victim and Page engaged in a fight
    prior to the shooting, and that the victim instigated the fight. The victim may
    have said something about Page’s brother or a “baby mama,” and the victim
    was walking toward Page at the time of the shooting. Such comments would
    not justify a heat of passion jury instruction. There is no evidence that “there
    was sufficient provocation to create uncontrollable passion in a reasonable
    person.” See Martin, 5 A.3d at 186. The court did not abuse its discretion or
    err when it denied Page’s request.
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    Page next argues that the trial court failed to award the credit for all of
    the time he served after his arrest until the date of sentencing. He states that
    “[a]lthough the trial court directed that all of the credit be spread over the
    two revocation dockets, a review of the sentencing order shows that all of the
    days were credited at only one revocation docket . . . even though the amount
    of credit exceeded the maximum sentence at this docket.” Page’s Br. at 28.
    He further argues that the court miscalculated the credit and that additional
    days “should have been credited to his other revocation docket . . . or the
    instant docket.” Page’s Br. at 32.
    A claim that the trial court failed to award credit for time served prior to
    sentencing is a challenge to the legality of the sentence. Commonwealth v.
    Johnson, 
    967 A.2d 1001
    , 1003 (Pa.Super. 2009). A trial court must order
    credit for time served “for all time spent in custody as a result of the criminal
    charge for which a prison sentence is imposed or as a result of the conduct on
    which such a charge is based.” 42 Pa.C.S.A. § 9760(1). This includes “credit
    for time spent in custody prior to trial, during trial, pending sentence, and
    pending the resolution of an appeal.” Id.
    Page supplemented the record in this case with the sentencing orders
    from his revocation dockets. The orders reflect that the court ordered credit
    for time served at only one of the two revocation dockets. In that case, the
    court sentenced Page to a maximum of one year in jail, and ordered that he
    was to receive credit for time served of 433 days, i.e., more than one year.
    However, the excess days were not applied against the sentence in either the
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    J-S44021-19
    second revocation docket or, more relevant to this appeal, the present case.
    Page has therefore not received credit “for all time spent in custody as a result
    of the criminal charge for which a prison sentence is imposed.” We therefore
    vacate the sentence in this case and remand to the trial court to determine
    the amount of credit Page has not received and to apply the credit due.
    Judgment     of   sentence   vacated.    Case    remanded.     Jurisdiction
    relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/3/2020
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