Opinion
J-S95039-16 No. 371 EDA 2015
02-14-2017
COMMONWEALTH OF PENNSYLVANIA v. DAVID REYES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 9, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0001249-2013 BEFORE: STABILE, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
David Reyes ("Reyes") appeals from the judgment of sentence imposed after a jury convicted him of first-degree murder, firearms not to be carried without a license, carrying a firearm on public streets in Philadelphia, and possessing an instrument of crime. We affirm.
See 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a).
The trial court thoroughly set forth in its Opinion the factual history underlying this appeal, which we adopt as though fully recited herein. See Trial Court Opinion, 10/23/15, at 2-9.
In January 2015, the matter proceeded to a jury trial, at the close of which the jury found Reyes guilty on all counts. The trial court then imposed an aggregate sentence of life in prison without the possibility of parole. Reyes timely filed a Notice of Appeal. In response, the trial court ordered Reyes to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Reyes timely filed a Concise Statement.
Reyes presents the following issues for our review:
I. Did the trial court err in not allowing [a] defense expert to give his opinion that [Reyes] acted under a sudden and intense passion resulting from serious provocation by the victim[,] because this issue of voluntary manslaughter was raised by the evidence and the [defense] witness ... was a registered psychologist[,] who was qualified by the court to testify as an expert?Brief for Appellant at 2.
II. Did the trial court err in not giving an instruction on voluntary manslaughter[,] in that [Reyes] acted under a sudden and intense passion resulting from serious provocation by the victim[,] when this issue of voluntary manslaughter was raised by the evidence in this case?
III. Did the trial court err in not giving an instruction on voluntary intoxication or drugged condition as a defense to first[-]degree murder[,] when [Reyes] introduced evidence on this issue?
IV. Did the trial court err in not giving the jury a charge on diminished capacity that reduce [sic] first[-]degree murder to third[-]degree murder[,] when evidence was presented at trial on this issue?
In his first issue, Reyes argues that the trial court committed reversible error when it precluded the defense from presenting opinion testimony from defense witness Alan Tepper, J.D., Psy.D. ("Dr. Tepper"), that Reyes had shot the victim under a sudden and intense passion resulting from serious provocation by the victim (hereinafter "the proposed heat of passion expert testimony"). See id. at 8. Reyes asserts that the following facts were sufficient to raise the issue of reducing the first-degree murder charge to voluntary manslaughter, and thus allow for introduction of the proposed heat of passion expert testimony:
The trial court qualified Dr. Tepper as an expert in psychology.
[T]he victim said to [Reyes] ["]fuck your mother[,"] and when [Reyes] told the victim that his mother just died[,] the victim provoked [Reyes], who[m,] the evidence showed[,] was in an extremely bad mental state, by saying again to him ["]fuck your mother[,"] and laughing about the victim[']s acquittal for [Reyes's] nephew's sexual assault case. If this provocation had not happened[,] would there have been a homicide[?] The opinion of Dr. Tepper would have said no ....Id. at 11; see also id. at 10, 11 (asserting that "Dr. Tepper was going to testify that d[ue] to the state of mind of [Reyes,] the actions of the decedent were a trigger for voluntary manslaughter," and "at the time of the incident[, Reyes] was acting and reacting in a state of intense and sudden passion provoked by the victim."). Reyes contends that "[w]ords alone can be sufficient provocation for voluntary manslaughter[.]" Id. at 11 (citing Commonwealth v. Berry , 336 A.2d 262 (Pa. 1975)).
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly discussed the applicable law and standard of review, and determined that it properly excluded the proposed heat of passion expert testimony, as there was no factual basis for a jury instruction on voluntary manslaughter. See Trial Court Opinion, 10/23/15, at 13-18. The trial court's sound rationale and determination is amply supported by the law and the record, and we therefore affirm on this basis in rejecting Reyes's first issue, see id., with the following addendum.
Reyes's characterization of our Supreme Court's holding in Berry , supra , is inaccurate. In that case, the defendant's mother and her male neighbor engaged in a verbal altercation, during which the mother spat at the neighbor, and he responded by striking her, knocking her to the ground. Berry , 336 A.2d at 235. Upon hearing his mother's scream, the defendant came immediately to the scene and observed his mother on the ground, whereupon she informed him of the assault. Id. Five minutes later, the defendant forced his way into the neighbor's home and fatally wounded the man. Id. The Supreme Court held that the trial court had erred in giving an inaccurate jury instruction on the provocation necessary to establish voluntary manslaughter, stating that,
[w]hile the words of an insulting and scandalous nature are not sufficient cause of provocation, words conveying information of a fact[,] which constitutes adequate provocation when that fact is observed[,] would constitute sufficient provocation. The threatened or immediate infliction of serious injury upon a parent, spouse or child[,] because of the relationship of the parties and the expected concern of one for the well[-]being of the other, has occasioned courts to hold this conduct may be sufficient provocation to reduce the killing to voluntary manslaughter. We are constrained to hold that the trial court misled the jury in suggesting that the provocation could not be found to be legally sufficient in absence of a finding that the son actually witnessed the assault upon the mother.Id. at 264 (emphasis added; internal citations and paragraph break omitted). To the contrary, as the trial court properly determined in the instant case, the victim's actions fell well short of the provocation necessary for voluntary manslaughter, as "[Reyes] was only subjected to insults of a non-threatening nature." Trial Court Opinion, 10/23/15, at 16 (citing Berry ).
We next address Reyes's remaining three issues simultaneously, as they all allege trial court error in its refusal to give three jury instructions requested by the defense: voluntary manslaughter; voluntary intoxication or drugged condition; and diminished capacity (hereinafter collectively referred to as "the requested jury instructions"). In his second issue, Reyes contends that a jury instruction on voluntary manslaughter was warranted under the facts (and the expert opinion of Dr. Tepper), as discussed in connection with Reyes's first issue above. See Brief for Appellant at 12-16. According to Reyes, this evidence met the three-prong test for establishing voluntary manslaughter set forth in Commonwealth v. McCusker , 292 A.2d 286 (Pa. 1972). Brief for Appellant at 15.
In his third issue, Reyes argues that a jury instruction on voluntary intoxication was warranted where
[Reyes] introduced eviden[ce] that he was under the influence of the drugs of Percocet and Xanax at the time of the incident[; Reyes's] sister testified that she saw him the day before the incident and [Reyes] was out of it[; Reyes] introduced expert testimony that [he] had a binging behavior [] with drug abuse of Opiate and Ben[z]odiazepine drugs[; and Reyes] testified that he blanked out during the incident and had no memory of it.Id. at 16.
Finally, Reyes avers that a jury instruction on diminished capacity was warranted where Reyes had presented evidence that he suffered from a mental disorder that prevented him from formulating a specific intent to kill. Id. at 19. Reyes concedes that his psychological expert, Dr. Tepper, "did state an opinion ... [that] one could not come to the conclusion that [Reyes] acted with or without specific intent to kill." Id. at 22. Reyes urges that, nevertheless, the trial court should have issued an instruction on diminished capacity, as "the evidence raised the issue of diminished capacity because [Reyes] does not have to prove diminished capacity but must raise it in the evidence[.]" Id.; see also id. (asserting that "there was other evidence introduced by the defense that [Reyes] was suffering from a mental disorder or abnormality[,] which came from [the testimony of Reyes] and [Reyes's] sister.").
The trial court addressed Reyes's claims in its well-reasoned Opinion, thoroughly discussed the applicable law and standard of review, and determined that the court did not err in declining to give the requested jury instructions. See Trial Court Opinion, 10/23/15, at 18-25. The trial court's sound rationale and determination is supported by the law and the record, and we therefore affirm on this basis as to Reyes's three remaining issues. See id.; see also id. at 14-18 (discussing the law on voluntary manslaughter).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/14/2017
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