Com. v. Green, V. ( 2022 )

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2022 PA Super 47COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VYANTE ANTON GREEN :
:
Appellant : No. 372 EDA 2021
Appeal from the Judgment of Sentence Entered August 26, 2020
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0005511-2018
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
OPINION BY STABILE, J.: FILED MARCH 16, 2022
Appellant, Vyante Green, appeals from the judgment of sentence
imposed on August 26, 2020 in the Court of Common Pleas of Lehigh County
following his conviction of, inter alia, first-degree murder (Kenyatta Eutsey),
attempted criminal homicide (Dimitri Joseph), and aggravated assault (Dimitri
Joseph),1 all stemming from events that occurred shortly after midnight on
January 1, 2018 at a New Year’s Eve party. Appellant contends the trial court
erred when it refused to instruct the jury on self-defense and on voluntary
manslaughter. Because we conclude the trial court erred when it denied the
voluntary manslaughter (“imperfect self-defense”) instruction, we vacate
Appellant’s judgment of sentence and remand for a new trial.
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1 18 Pa.C.S.A. §§ 2502(a), 901(a), and 2702(a)(1), respectively.
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The trial court provided a thorough summary of evidence presented at
Appellant’s trial, complete with references to and excerpts from the notes of
testimony. See Trial Court Opinion, 3/26/21, at 2-9. Briefly, Appellant and
his victims, Kenyatta Eutsey (“Eutsey”) and Dimitri Joseph (“Joseph”), were
among the 75 to 100 people who attended a New Year’s Eve party at an Airbnb
property in Allentown. Appellant had no prior contact with Eutsey or Joseph,
who were cousins. All three had been drinking for some time when Eutsey
decided he wanted to take someone’s phone. He walked up to Appellant, who
had a bottle of Hennessey (cognac) in one hand and his phone in the other.
Eutsey, who was much larger than Appellant, “snatched” the phone from
Appellant and began going through it. When Appellant demanded that Eutsey
return the phone, Eutsey began making disparaging remarks about Appellant
and said he would not return the phone. In response, Appellant pulled a .32
caliber revolver from his right pocket and demanded his phone. When Eutsey
refused and tried to “fake swing or tr[ied] to swing” at Appellant, Appellant
fired the revolver. Notes of Testimony (“N.T.”), Volume III, at 127, 164-65.
As Eutsey was falling to the floor, Appellant fired a second shot.
Appellant then noticed Joseph heading in his direction. He saw Joseph’s
hand near the waistband of his pants and, rather than “wait to get shot[,] I
turned around and started firing at the second individual.” Id. at 129.
Eutsey died from his wounds. Joseph was severely injured. Appellant
fled the scene and made his way to a friend’s home and then to an after-hours
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establishment. The following morning, he discarded his clothes and the gun.
A few days later, he fled the state to New York where he remained for a week
or two. He was arrested on May 23, 2018.
Following Appellant’s February 2020 jury trial, at which he testified,
Appellant was found guilty as noted above. A pre-sentence investigation
report was ordered and Appellant proceeded to a sentencing hearing on
August 26, 2020. The trial court imposed a mandatory sentence of life in
prison on the first-degree murder conviction and also sentenced Appellant in
the standard range to a consecutive term of 20 to 40 years in prison for
attempted homicide.
Post-sentence motions were denied on December 1, 2020 after a
hearing. This timely appeal followed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant asks us to consider three issues, which we have
reordered for ease of disposition as follows:
1. Whether Appellant’s [issues relating to jury instructions] are
preserved for purposes of appellate review despite defense
counsel’s failure to object at the end of the charge?
2. Whether the trial court erred in making its own credibility
determinations and denying Appellant’s request for a self-
defense instruction and precluding trial counsel from arguing
self-defense where [Appellant] explicitly testified that he acted
to defend himself from two men who robbed him of his phone,
threatened him, tried to punch him, and were potentially
armed?
3. Whether the trial court erred in making its own credibility
determinations and denying Appellant’s request for a voluntary
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manslaughter instruction and precluding trial counsel from
arguing imperfect self-defense where [Appellant] explicitly
testified that he acted to defend himself from two strangers
who robbed him of his phone, threatened him, tried to punch
him, and appeared to be armed?
Appellant’s Brief at vi.
In his first issue, Appellant contends he preserved his jury instruction
claims despite counsel’s failure to object on the record at the end of the trial
court’s charge to the jury. The trial court’s Rule 1925(a) opinion is silent as
to this matter, suggesting that the trial court recognized the issue was
preserved based on statements it made on the record during charging
conferences on two consecutive days. The Commonwealth, on the other hand,
asserts the claims are waived because counsel did not renew his request for
jury instructions or object after the trial court concluded its charge.
Commonwealth Brief at 12-14 (citing, inter alia, Commonwealth v.
Pressley, 887 A.2d 220 (Pa. 2005)).
In Pressley, defense counsel submitted two proposed points for charge
that the trial court rejected on the record prior to closing arguments. The
first, a missing evidence charge, was rejected because the documents in
question were provided to the defense during discovery. Id. at 222. The
second, a simple assault charge, was rejected because the defendant had not
been charged with simple assault. Id. Defense counsel neither took an
exception nor lodged an objection at the time of the rulings or following the
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charge. Id. at 225. In other words, there is no indication that counsel did
anything more than merely submit proposed points that the trial court denied.
The Court announced:
We hold that under Criminal Procedural Rules 603 and 647(B),
the mere submission and subsequent denial of proposed points
for charge that are inconsistent with or omitted from the
instructions actually given will not suffice to preserve an issue,
absent a specific objection or exception to the charge or the
trial court’s ruling respecting the points.
Id.
We acknowledge that Appellant’s counsel did not object to the charge
or request any supplemental instructions when asked by the trial court at the
conclusion of its charge to the jury. However, counsel did not merely submit
proposed points for charge that were denied by the trial court, as was the case
in Pressley. Rather, on two separate days, counsel argued for self-defense
and voluntary manslaughter charges. The record clearly reflects “the trial
court’s ruling respecting the points,” id. at 225, when it rejected counsel’s
request for those instructions and assured counsel on both days that the
issues were preserved for appeal. See N.T, Vol. III, at 196; Vol. IV at 18.
Under the circumstances, while renewing his objections to the twice-rejected
points for charge at the end of the jury charge would have eliminated the need
for this Court to address the claim of waiver, we do not find that preserving
his objections on the record during the charging conferences, rather than at
the end of the jury charge, where the trial court expressly informs counsel his
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objections were preserved, runs afoul of Pressley or Rule 647(B).2 Therefore,
we decline to find Appellant’s issues waived.
With regard to Appellant’s challenges to the denial of jury instructions,
we initially note:
Our standard of review in regard to a trial court’s decisions on jury
instructions is well-settled: “[O]ur 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.
Galvin, 603 Pa. 625, 651, 985 A.2d 783, [798-99] (2009).
Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018),
appeal denied, 217 A.3d 180 (Pa. 2019). Further, “[t]the trial court is not
required to give every charge that is requested by the parties and its refusal
to give a requested charge does not require reversal unless the Appellant was
prejudiced by that refusal.” Commonwealth v. Sandusky, 77 A.3d 663,
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2 It appears the Supreme Court has recognized that a jury instruction issue
can be preserved not only at the conclusion of a jury charge but also during a
charging conference. In Commonwealth v. Sanchez, 82 A.3d 943 (Pa.
2013), decided eight years after Pressley, the appellant raised a jury
instruction issue. The Commonwealth argued the issue was waived “because
the record does not indicate that any request for a voluntary manslaughter
instruction was made, or that a specific and timely objection was made to the
court’s denial of such instruction.” Sanchez, 82 A.3d at 978. The Court noted
that the “Commonwealth’s suggestion of waiver with respect to this claim of
error is clouded by the fact that the charging conference between the court
and counsel was not transcribed.” Id. However, the trial court disposed of
the jury instruction issue in its supplemental Rule 1925(a) opinion. The
Supreme Court interpreted the trial court’s disposition of the issue as evidence
“that the issue had been properly preserved during the conference.”
Sanchez, 82 A.3d at 978-79. See also Commonwealth v. Sandusky,
77 A.3d 663 (Pa. Super. 2013).
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667 (Pa. Super. 2013) (quoting Commonwealth v. Thomas, 904 A.2d 964,
970 (Pa. Super. 2006) (citation omitted)).
In the first of his two claims relating to jury instructions, Appellant
contends the trial court erred when it refused to instruct the jury on self-
defense. As this Court recently reiterated:
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 [force] to prevent such harm; 2) the defendant did not
provoke the threat that resulted in the slaying; and 3) the
defendant did not violate a duty to retreat. 18 Pa.C.S. §
505(b)(2); Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d
1108, 1124 (2012); Commonwealth v. Mouzon, 617 Pa. 527,
53 A.3d 738, 740 (2012); [Commonwealth v. Knox, 219 A.3d
186, 196 (Pa. Super. 2019)]. 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, 55 A.3d at 1124; Knox, 219 A.3d at 196;
Patterson, 180 A.3d [1217, 1231 (Pa. Super. 2018)].
Commonwealth v. Jones, ---A.3d---, ---, 2021 WL 5964729, at *4 (Pa.
Super. December 16, 2021).
As the Commonwealth correctly recognizes, “Before the issue of self-
defense may be submitted to a jury for consideration, a valid claim of self-
defense must be made out as a matter of law, and this determination must
be made by the trial judge.” Commonwealth Brief at 15 (quoting
Commonwealth v. Hansley, 24 A.3d 410, 420 (Pa. Super. 2011)). In
Hansley, this Court explained that a valid claim of self defense
may consist of evidence from whatever source. Such evidence
may be adduced by the defendant as part of his case, or
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conceivably, may be found in the Commonwealth’s own case in
chief or be elicited through cross-examination. However, such
evidence from whatever source must speak to three specific
elements for a claim of self-defense to be placed in issue for a
jury’s consideration.
Thus, as provided by statute and as interpreted through our case
law, to establish the defense of self-defense it must be shown
that[:] a) the slayer was free from fault in provoking or continuing
the difficulty which resulted in the slaying; b) that the slayer must
have reasonably believed that he was in imminent danger of death
or great bodily harm, and that there was a necessity to use
such force in order to save himself therefrom; and c) the
slayer did not violate any duty to retreat or to avoid the danger.
If there is any evidence from whatever source that will support
these three elements then the decision as to whether the claim
is a valid one is left to the jury and the jury must be charged
properly thereon by the trial court.
Id. at 420-21 (quoting Commonwealth v. Mayfield, 585 A.2d 1069, 1070-
71 (Pa. Super. 1991) (en banc) (cleaned up) (emphasis in original)).
The trial court refused to instruct the jury on self-defense.3 The court
recognized that a claim of self-defense requires that the evidence establish
three elements, specifically, that a defendant
(a) 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; (b) was free
from fault in provoking the difficulty which culminated in the
slaying; and (c) did not violate any duty to retreat.
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3The trial court uses the term “self-defense” as well as the term “justification.”
We note that these are not two different defenses. Justification is the term
employed for self-defense in the Crimes Code. Commonwealth v. Mouzon,
53 A.3d 738, 740 (Pa. 2012). We shall refer to the defense as “self-defense.”
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Trial Court Opinion, 3/26/21, at 11 (citing Sanchez, 82 A.3d at 980) (in turn
citing Sepulveda, 55 A.3d at 1124) (emphasis in original). As indicated
above, if there is evidence supporting the three elements, “then the decision
as to whether the claim is a valid one is left to the jury and the jury must be
charged properly thereon by the trial court.” Hansley, 24 A.3d at 421.4
Here, Appellant claimed that when Eutsey snatched the phone from his
hand, Appellant told Eutsey to give the phone back. N.T., Vol. III, at 120-21.
In response, Eutsey began making disparaging remarks and asked Appellant
what he was going to do about it. Id. Appellant testified that Eutsey glanced
across the room. Appellant followed Eutsey’s glance and saw Joseph who
started walking with “his hand somewhere in his waistband area.” Id. at 122.
Joseph “stopped where he was at. So then that’s when [Eutsey] came back
to me and started saying different things . . . like, ‘you still beat, like, you
ain’t going to get your phone back.’ And at the time, that’s when I displayed
my firearm.” Id. at 123. He pointed the gun toward Eutsey and “[t]hat’s
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4 Regarding the second and third elements necessary to warrant a self-defense
charge, there was no suggestion that Appellant was at fault in provoking the
difficulty (second element). See N.T., IV, at 6 (unnumbered) (Counsel: “[With
r]espect to being free from fault, the testimony in the Commonwealth’s . . ..”
The court: “Let’s push that one aside, because I don’t think that really is what
defeats your request here.”) Further, although there was testimony
suggesting otherwise, Appellant testified that he was in a corner and unable
to retreat (third element). See N.T., Vol. III, at 126, 129.
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when I told him, all right, now give me my phone to try to, like, scare him to
get my phone back.” Id. at 124.
According to Appellant, Eutsey asked Appellant, “Basically, what the
fuck you going to do with that, pussy.” Id. Eutsey then looked back in the
direction of Joseph and Appellant “guess[ed Joseph] could see that I pulled
out a firearm already, because he was, like, hesitant of what he wanted to do
and how he was going to go about it.” Id. at 125. Joseph’s “hands were still
down. So in my mind, I’m just trying to figure out what’s going on. And by
the time I went to go look back at them, I just seen what [] looked like
[Eutsey] trying to, like, swing on me[.]” Id. Appellant explained that Eutsey’s
“body went into a twisted formation like he was going to try to, like, sucker
punch me basically.” Id. at 126. “Once he tried to fake swing or try to swing,
that’s when I ended up weaving when the swing came, and that’s when I
ended up firing the first shot.” Id. at 127. “When the swing came, I just
leaned back. The firearm was still pointed at the individual. It was just a
quick reaction, and it just discharged.” Id. at 128.5 Appellant said he then
“shot again, too.” Id. At that point, he saw Joseph heading in his direction.
Joseph’s hand “was covered up” so Appellant “didn’t know if he was trying to
pull a firearm out or not. At the time, I wasn’t trying to wait to get shot. I
turned around and started firing at [Joseph].” Id. at 128-29.
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5Although Appellant stated the firearm “just discharged,” he acknowledged
he pulled the trigger. Id.
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The trial court determined that Appellant used deadly force
where, under any interpretation of the circumstances, the
appellant only faced non-deadly force. When asked why he pulled
the trigger, his response was that he “perceived” threats. He saw
no gun, he eluded any attempt by Mr. Eutsey to strike him, and
made it clear that Mr. Eutsey died because he would not return
appellant’s cell phone. The appellant used greater force than was
necessary to protect himself from death or serious bodily injury.
He used “unreasonable force, rendering the claim of self-defense
unavailable.”
Trial Court Opinion, 3/26/21, at 13 (citing Commonwealth v. Truong, 36
A.3d 592, 599 (Pa. Super. 2012)). Moreover, Appellant “did not act out of an
honest, bona fide belief that he was in imminent danger of death or serious
bodily injury. Furthermore, [A]ppellant’s belief that he needed to defend
himself with deadly force when faced with an unarmed man was unreasonable
in light of the facts as they appeared to him.” Id. at 13 (citing
Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014)).
“[A]ppellant shot and killed Mr. Eutsey and seriously wounded Mr. Joseph, not
because he reasonably believed he was in danger of death or serious bodily
injury, but because Mr. Eutsey would not return his cell phone.” Id. at 14.
The trial court concluded the evidence did not establish that Appellant
reasonably believed he was in imminent danger of death or serious bodily
injury, one of the three elements required to establish self-defense.6
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6As our Supreme Court explained in Commonwealth v. Mouzon, 53 A.3d
738 (Pa. 2012):
(Footnote Continued Next Page)
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Cognizant that the trial judge is to determine whether a valid claim of self-
defense has been made out as a matter of law, see Hansley, 24 A.3d at 420,
and mindful that our standard of review of a trial court’s denial of a jury
instruction is one of deference, we find no error or abuse of discretion in the
trial court’s refusal to deliver a self-defense instruction. Appellant is not
entitled to relief on his second issue.
In his third issue, Appellant argues the trial court erred when it refused
to give the voluntary manslaughter or “imperfect self-defense” instruction.7
Under 18 Pa.C.S.A. § 2503(b), voluntary manslaughter is defined as:
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The requirement of a reasonable belief encompasses two aspects,
one subjective and one objective. First, the defendant “must have
acted out of an honest, bona fide belief that he was in imminent
danger,” which involves consideration of the defendant’s
subjective state of mind. Second, the defendant’s belief that he
needed to defend himself with deadly force, if it existed, must be
reasonable in light of the facts as they appeared to the defendant,
a consideration that involves an objective analysis.
Id. at 752 (citing Commonwealth v. Light, 326 A.2d 288 (Pa. 1974)).
7 Appellant largely relies on Commonwealth v. Monroe, 322 A.2d 100 (Pa.
1974), in support of his assertion of trial court error for failing to deliver a
voluntary manslaughter charge. See Appellant’s Brief at 11-13. During the
charging conference, the trial court noted that when Monroe was decided,
trial courts were required to provide a voluntary manslaughter charge. See
N.T., Vol. IV, at 17. Our Supreme Court “has repeatedly held since 1983 that
a murder defendant is entitled to a jury instruction on the lesser offense of
voluntary manslaughter only where there is sufficient evidence to support
such a verdict.” Commonwealth v. Cook, 952 A.2d 594, 637 (Pa. 2008)
(citing Commonwealth v. Ragan, 743 A.2d 390, 396 (Pa.
1999) (citing, inter alia, Commonwealth v. Carter, 466 A.2d 1328, 1322-
33 (Pa. 1983) (“‘unreasonable belief’ manslaughter charge shall be given
(Footnote Continued Next Page)
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(b) Unreasonable belief killing justifiable.—A person who
intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the
circumstances to be such that, if they existed, would justify the
killing under Chapter 5 of this title, but his belief is unreasonable.
18 Pa.C.S.A. § 2503(b). In Sanchez, our Supreme Court reiterated that
“unreasonable belief voluntary manslaughter,” sometimes loosely
referred to as “imperfect self-defense,” Commonwealth v.
Tilley, 595 A.2d 575, 582 (Pa. 1991) (citing 18 Pa.C.S.
§ 2503(b)), will only justify a voluntary manslaughter instruction
in limited circumstances: where a defendant held “an
unreasonable rather than a reasonable belief that deadly force
was required to save his or her life,” and “all other principles of
justification under 18 Pa.C.S. § 505 have been met.” Id.
Generally, the use of deadly force is not justifiable “unless the
actor believes that such force is necessary to protect himself
against death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat.” 18 Pa.C.S.
§ 505(b)(2). Although a defendant has no burden to prove a claim
of self-defense before such a defense is properly in issue, “there
must be some evidence, from whatever source, to justify such a
finding.” Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 n.
13 (Pa. 2012).
Sanchez, 82 A.3d at 980 (cleaned up).8 In Light, our Supreme Court
reiterated:
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only when requested, where the offense has been made an issue in the
case, and the trial evidence reasonably would support such a verdict.”).
Therefore, even though defendants no longer have an unconditional right to
the unreasonable belief voluntary manslaughter charge post-Carter, it
remains true that a defendant is entitled to the instruction when requested, if
there is sufficient evidence to support the verdict.
8 We note that a voluntary manslaughter jury charge is not required if a
defendant denies having committed the killing. Id. at 98 (citing
Commonwealth v. White, 275 A.2d 75, 77 (1971)). However, here
(Footnote Continued Next Page)
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The dividing line between self-defense and this character of
manslaughter (voluntary, brought about through the influence of
a passion of fear) seems to be the existence, as the moving force,
of a reasonably founded belief of either imminent peril to life or
great bodily harm, as distinguished from the influence of an
uncontrollable fear or terror, conceivable as existing but not
reasonably justified by the circumstances.
Light, 326 A.2d at 294 (quoting Commonwealth v. Principatti, 104 A. 53,
57 (Pa. 1918) (additional citation omitted)). Further,
[i]f the circumstances are both adequate to raise and sufficient to
justify a belief in the necessity to take life in order to save one’s
self from such danger, where the belief exists and is acted upon,
the homicide is excusable upon the theory of self-defense; . . .
while, if the act is committed under the influence of an
uncontrollable fear of death or great bodily harm, caused by the
circumstances, but without the presence of all the ingredients
necessary to excuse the act on the ground of self-defense, the
killing is manslaughter.
Principatti, 104 A. at 57 (citation omitted).
As reflected above, in Jones, this Court discussed the three elements
of self-defense and explained the Commonwealth’s burden of disproving at
least one of those elements. In terms of Appellant’s requested self-defense
claim, the trial court determined that the element the Commonwealth
disproved was that Appellant “reasonably” believed he was in imminent
danger of death or serious bodily injury so as to necessitate the use of deadly
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Appellant admitted that he pulled the trigger and shot Eutsey twice. N.T., Vol.
III, at 128. He also admitted shooting Joseph. Id. at 128-29.
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force. However, the Court in Jones also addressed imperfect self-defense,
noting:
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, 55 A.3d at 1124; Commonwealth v.
Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc).
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, 610 Pa. 264,
18 A.3d 1128, 1135 (2011); Commonwealth v. Carbone, 524
Pa. 551, 574 A.2d 584, 589 (1990); Commonwealth v. Chine,
40 A.3d 1239, 1243 (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, 564
Pa. 219, 766 A.2d 342, 345 (2001); Commonwealth v. Ward,
188 A.3d 1301, 1304 (Pa. Super. 2018).
Jones, ---A.3d ----, ---, 2021 WL 5964729, at *4.
Here, Appellant testified that Eutsey—who at 6’ 3-1/2” and 234 pounds,
see N.T., Vol. III, at 167, was larger than Appellant, id. at 120—tried to swing
at Appellant, who was scared. Id. at 127, 131. In response, Appellant fired
twice. Both shots were estimated to have been from a distance of less than
one foot away, and perhaps less than ten inches away. Id. at 166. Appellant
then saw Joseph coming toward him and “felt he was trying to pull something
from his waistband.” Id. at 174. Appellant shot at Joseph, rather than “wait
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to get shot,” id. at 129, in response to what he perceived as threats. Id. at
174. In other words, Appellant testified as to his subjective beliefs.
As the trial court correctly recognized, “Imperfect self-defense has two
components: the defendant’s subjectively held belief of danger posed by the
victim and the objective measurement of that belief. Trial Court Opinion,
3/26/21, at 12. Further, “[a] viable claim of imperfect self-defense cannot be
based solely on the subjective state of mind of the defendant. ‘It is not the
appellant who determines what is a reasonable belief. There must be some
standard by which it is measured.’” Id. (quoting Sepulveda, 55 A.3d at
1126) (emphasis in original).
Our review of the evidence does not reflect that the Commonwealth
disproved Appellant genuinely believed he was in imminent danger of being
killed or seriously injured by Eutsey or by Joseph. If anything, through its
cross-examination of Appellant, the Commonwealth bolstered Appellant’s
contention that he “actually, but unreasonably believed deadly force was
necessary.” Truong, 36 A.3d at 599. Nevertheless, the jury was not
instructed on voluntary manslaughter or imperfect self-defense and,
therefore, could not consider whether Appellant’s belief was reasonable or
unreasonable. We conclude that the jury, as factfinder—not the trial court—
should have determined whether Appellant unreasonably believed that deadly
force was necessary. We agree with Appellant that the trial court usurped the
jury’s role as factfinder by making its own credibility determinations when it
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denied Appellant’s request for a voluntary manslaughter instruction and
precluded counsel from arguing imperfect self-defense.
Based on the evidence presented at trial, an “unreasonable belief”
voluntary manslaughter jury instruction was appropriate and the trial court’s
refusal to provide that instruction prejudiced Appellant. Therefore, the refusal
to instruct on voluntary manslaughter constitutes reversible error.
Sandusky, 77 A.3d at 667.
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2022
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