J-E03004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

v.

PAUL BARONE, JR.

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1528 WDA 2018

Appeal from the PCRA Order Entered October 1, 2018

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0006683-2013

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON, 

J., STABILE, J., NICHOLS, J., McLAUGHLIN, J., and KING, J.

DISSENTING MEMORANDUM BY BOWES, J.: FILED: APRIL 15, 2021

Barone’s jury convicted him of first-degree murder upon being

instructed that a fear for the life of himself and his friends must be reasonable 

to justify an intentional killing, but not that an unreasonable fear could negate 

the element of malice and warrant a finding of voluntary manslaughter.1 The 

Majority holds that the counsel’s failure to ensure that the jury was informed 

of its ability to return a reduced verdict if Barone unjustifiably acted in selfdefense or defense of others does not entitle Barone to relief because the jury 

“had already been told that Barone could not be found guilty of murder if he 

justifiably acted in self-defense or defense of others.” Majority Memorandum 

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1 See, e.g., Commonwealth v. Nau, 373 A.2d 449, 452 (Pa. 1977) (“The 

alleged fear of the appellant (even though unreasonable) in effect may be 

considered for the purpose of negating the element of malice, the presence of 

which would otherwise make the homicide murder and not manslaughter.”). 
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at 11 (emphasis added). Since I fail to see the logic in the Majority’s ruling, 

and because I further disagree with the Majority’s alternative holding that the 

facts of the case rendered the voluntary manslaughter instruction inapplicable, 

I respectfully dissent. 

I begin with a review of the pertinent facts. Barone testified that he and 

his best friend J.J. began their evening at J.J.’s house, then went to a bar 

where J.J.’s girlfriend worked. See N.T. Trial, 8/20/15, at 97-98. J.J., who 

had recently sustained gunshot wounds that negatively impacted his mobility, 

was like a brother to Barone. Id. at 103-04, 107, 121. Another friend,

Travon Fuller, met them at the bar and drove them to Club Pink, where they 

met some additional friends. Id. at 98-99. While the men enjoyed the club’s 

amenities, a disturbance occurred upstairs, ultimately resulting in the club 

management turning up the lights and instructing everyone to leave. Id. at 

100-01. Barone and Fuller made their way outside, but were unable to locate 

J.J. Id. at 101. While Barone looked around for J.J., Fuller indicated that they 

had to get away quickly. Id. at 102. Barone observed a group of men he did 

not know drawing weapons from a nearby vehicle. Id. at 102-03. Fearful for 

J.J.’s safety, Barone retrieved a weapon from Fuller’s car and went back to 

find J.J. Id. at 103 (“I couldn't leave J.J., like he’s like my little brother, you 

know what I’m saying. . . . I’m not gonna leave him down there when all this 

shit’s going on.”). Once J.J. was behind Barone making his way to Fuller’s 

vehicle, the other group began shooting. Id. at 106. Barone moved towards 

the other group and returned their fire to cover J.J. and Fuller while they 
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readied the car for their hasty departure. Id. at 107. Fearing that none of 

them would be able to get to safety, Barone continued to fire at the aggressors 

rather than taking cover behind a dumpster or turning his back to run away. 

Id. at 107, 124 124 (testifying that his instinct was to protect his friends “by 

any means necessary” rather than run away to seek his own safety). Even 

once the three were in Fuller’s vehicle and were attempting to get out of the 

alley where they parked, the other group continued firing on them, prompting 

Barone to fire shots from inside Fuller’s car as the three men were finally able 

to flee. Id. at 107-08. In sum, Barone’s defense was that the other group 

initiated and sustained the shooting, and that he took the steps he deemed 

necessary to enable his friends to escape with their lives. 

The trial court, which had reserved deciding whether it would instruct 

the jury as to justification, ruled that Barone’s testimony warranted the 

justification charge.2 See Commonwealth v. Mayfield, 585 A.2d 1069, 

1071 (Pa.Super. 1991) (en banc) (“If there is any evidence from whatever 

source that will support [the elements of self-defense] 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.”). Consequently, the trial court instructed 

the jury as follows regarding murder and justification:

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2 After issuing its ruling and indicating that it would charge the jury as to firstand third-degree murder, the trial court asked, “Anything else?” N.T. Trial, 

8/20/15, at 137. Barone’s counsel said nothing about voluntary 

manslaughter. 
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The defendant is charged with taking the life of John 

Sumpter, IV, by criminal homicide. There are three possible 

verdicts that you might reach in this case; not guilty or guilty of 

one of the following crimes: Murder in the first degree or murder 

in the third degree. Before I define each of these crimes I will tell 

you about malice which is an element of the crime of murder.

A person who kills must act with malice to be guilty of any 

degree of murder, and the word malice as I am using it has a 

special legal meaning. It does not mean simply hatred, spite or 

ill will. Malice is a shorthand way of referring to any of three 

different mental states that the law regards as being bad enough

to make a killing murder. The type of malice differs for each 

degree of murder. Thus for murder of the first degree a killing is 

with malice if the perpetrator acts with, first, an intent to kill or, 

as I will later explain in my definition of first degree murder, the

killing is willful, deliberate and premeditated.

. . . .

A killing is without malice if the perpetrator acts with lawful 

justification or excuse; lawful justification or excuse not only

negates malice but also is a complete defense to any charges of 

criminal homicide, and I shall say more about this when I do 

charge you on the defense of self-defense or justification.

The defendant is charged with murder of the first degree. 

First degree murder is murder in which the perpetrator has the

specific intent to kill. To find the defendant guilty of this offense 

you must find that the following three elements have been proven

beyond a reasonable doubt: First, that John Hunter Sumpter, IV 

is dead; second, that the defendant killed him and; third, that the

defendant did so with the specific intent to kill and with malice. A 

person has the specific intent to kill if he has a fully formed intent 

to kill and is conscious of his own intentions.

As my earlier definition of malice indicates, a killing by a 

person who has the specific intent to kill is a killing with

malice provided that it is also without circumstances 

reducing the killing to a lawful justification or excuse.

Stated differently, a killing is with specific intent to kill if it is 

willful, deliberate and premeditated.
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The specific intent to kill, including the planning needed for 

first degree murder does not require planning or previous thought 

for any particular length of time. It can occur quickly. All that is 

necessary is that there be time enough so that the defendant can 

and does fully form an intent to kill and is conscious of that 

intention.

When deciding whether or not – whether the defendant had 

the specific intent to kill you should consider all of the evidence

regarding his words and conduct and attending circumstances that 

may show this state of mind. If you believe that the defendant 

intentionally used a deadly weapon on a vital part of the victim’s 

body you may regard that as an item of circumstantial evidence 

from which you may, if you choose, infer that the defendant had 

the specific intent to kill.

. . . .

When deciding whether the defendant acted with malice you 

should consider all of the evidence regarding his words and 

conduct and the attending circumstances that may show his state 

of mind. If you believe that the defendant intentionally used a 

deadly weapon on a vital part of John Sumpter’s body you may

regard that as an item of circumstantial evidence from which you 

may, if you choose, infer that the defendant acted with malice.

The defendant has raised the issue of whether he acted in 

defense of himself or another, when his actions were to protect

Mr. Scott, Mr. Fuller or himself. Such a defense is called 

justification in the law of the Commonwealth of Pennsylvania. If 

the defendant’s actions were justified you cannot find him guilty 

beyond a reasonable doubt. The issue having been raised it is the

Commonwealth’s burden to prove beyond a reasonable doubt that 

the defendant did not act in justifiable defense of himself or 

another.

. . . .

If the Commonwealth proves to you beyond a reasonable 

doubt that the defendant used deadly force, then to prove that 

such force was not justifiable in this case it must prove one of the 

following elements beyond a reasonable doubt: First, that the 

defendant did not reasonably believe that he or another was in

immediate danger of death or serious bodily injury from John 
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Sumpter or another unnamed individual or individuals at the time 

that the defendant used the force and that, therefore, the 

defendant’s belief that it was necessary for him to use deadly force 

against John Hunter Sumpter or other unnamed individuals to 

protect himself or another was unreasonable. Put another way, 

the Commonwealth must prove either; one, that the defendant 

did not actually believe another person was in danger of death or 

serious bodily injury such that he needed to use deadly force to 

defend them at the moment or, two, that while the defendant 

actually believed he needed to use such force his belief was 

unreasonable in light of all of the other circumstances known to 

him.

Keep in mind a person is justified in using deadly force 

against another not only when another person is in actual danger 

of unlawful attack but also when the defendant mistakenly but 

reasonably believes that he is. A defendant is entitled to estimate 

the necessity for the force he employs under the circumstances as 

he reasonably believes them to be at the time.

In the heat of conflict a person who witnesses an attack or 

another ordinarily has neither -- on himself or another ordinarily 

has neither time nor composure to evaluate carefully the danger 

and make nice judgments about exactly how much force is needed 

to protect them. Consider the realities of the situation faced by 

the defendant here when you assess whether the Commonwealth 

has proved beyond a reasonable doubt either that he did not 

believe that he or another was actually in danger of death or 

serious bodily injury to justify his use of such force in their defense 

or that while he did believe that his belief was unreasonable.

The second application of justification in this case is where 

the defendant knew that he could avoid the necessity of using 

deadly force with complete safety by retreating himself, trying to 

cause the person he sought to protect to retreat and failing to do 

so. However, neither the defendant nor the person he seeks to 

protect is obligated to retreat from his own dwelling; that is any 

building or structure, though moveable or temporary or a portion

thereof, including the doorway that is at least for the time being 

their home or place of lodging unless the defendant was the initial

aggressor in the incident.

If the Commonwealth proves one of these elements beyond 

a reasonable doubt the actions of the defendant in using deadly 
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force are not justified. If the Commonwealth fails to prove these 

elements the defendant’s action was justified and you must find 

him not guilty of the crime of criminal homicide.

N.T. Trial, 8/20/15, at 175-84 (emphasis added). Applying this law to the 

evidence at trial, the jury returned a guilty verdict as to the charge of murder 

in the first degree.

As its primary basis for its holding that counsel’s failure to request a 

voluntary manslaughter charge did not render him ineffective, the Majority in 

essence concludes that the trial court erred in even giving a self-defense

instruction in the first place. The Majority indicates that “[t]he evidence 

presented at trial plainly established that Barone was not free from fault in

continuing the difficulty that led to Sumpter’s death, and that Barone chose 

not to retreat from the parking lot, despite being able to do so safely with his 

two companions[.]” Majority Memorandum at 7-8 (citation omitted, emphasis 

in original). Noting that imperfect self-defense requires satisfaction of all 

elements of self-defense except the reasonableness of the belief that deadly 

force was necessary, the Majority states that Barone was unable to do so 

because he failed to take cover behind a dumpster or a car when the shooting 

began, and he walked towards, rather than away from, the threat while his 

companions retreated. Thus, holds the Majority, Barone’s PCRA claim of 

ineffectiveness lacks arguable merit.3 Id. at 8.

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3 The Majority indicates that its conclusion that the evidence did not support 

the voluntary manslaughter instruction also renders Barone incapable of 

satisfying the second prong of an ineffectiveness claim regarding reasonable 
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Unlike the Majority, I believe that the trial court properly determined

that Barone’s testimony entitled him to a justification instruction. The law 

dictates that the failure to exercise a duty to retreat defeats justification only 

if “the retreat was possible with complete safety.” Commonwealth v. 

Ventura, 975 A.2d 1128, 1143 (Pa.Super. 2009) (emphasis added). 

Similarly, a disqualifying continuation of the difficulties occurs not when the 

defendant is still responding to the ongoing violence posed by the aggressor, 

but when the defendant uses deadly force after the initial deadly threat has 

completely ceased. See, e.g., Commonwealth v. Serge, 837 A.2d 1255, 

1266 (Pa.Super. 2003), aff’d on other grounds, 896 A.2d 1170 (Pa. 2006)

(holding evidence was insufficient to support imperfect self-defense 

instruction where the defendant “failed to offer requisite evidence challenging 

the inference that [he] ‘continued the difficulty which resulted in the killing’

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basis. See Majority Memorandum at 8. Yet, the record before us gives no 

indication that it was a belief that the instruction was inappropriate that 

motivated counsel’s omission. Indeed, the fact that counsel repeatedly 

advocated for the justification instruction tends to belie the Majority’s 

assumption that counsel’s inaction was based upon an unfavorable 

assessment of the evidence, and instead suggests that it was the result of 

counsel’s neglect. However, because the PCRA court declined to hold a 

hearing, we do not know why counsel failed to request that the jury be charged 

as to voluntary manslaughter. The law is clear that it is improper to conclude 

that counsel’s omission lacked a reasonable basis without an evidentiary 

foundation. See Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa. 2011)

(“[G]enerally, the court should not glean from the record whether counsel had 

a reasonable basis for his action or inaction absent an evidentiary hearing, 

and that it is only in the most clear-cut cases that the reasons for counsel's 

conduct are apparent from the record.”). Therefore, as indicated infra, I would 

remand for a hearing on that issue.
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when he fired the fatal shot into a kneeling, wounded, and non-threatening

[victim]”). 

Barone testified that the threat continued after J.J. and Fuller were 

behind him, and that the other group continued shooting at them until they 

escaped the scene. Since the shooters did not cease their fire or withdraw 

from the scene, the jury need not have concluded that Barone’s immediate 

running to the car or ducking behind a dumpster would have rendered him 

and his comrades completely safe from the ongoing deadly threat. Nor must 

the jury have concluded that Barone and his friends were safe once they were 

in Fuller’s car and attempting to leave the scene, as there was no suggestion 

that Travon’s car was bulletproof. Indeed, the decedent himself was inside a 

car when struck by Barone’s bullet. 

Thus, I believe the Majority errs in ruling that the evidence required a 

finding that Barone was not free from fault and could have retreated with 

complete safety. Cf. Commonwealth v. Isaacman, 409 A.2d 880, 881 (Pa. 

1979) (affirming voluntary manslaughter conviction where defendant shot 

retreating victim in the back upon concluding that, “[e]ven if [defendant] 

believed that [victim] would return and do him further harm, he was under a 

duty to retreat, and, once the deceased had left the scene, this could have 

been done with complete safety”). Where, as here, the evidence could support 

a defense to the charges at issue, the defendant is entitled to the relevant 

jury instructions, and the credibility and import of the evidence is exclusively 

for the fact-finder to decide. See, e.g., Commonwealth v. Markman, 916 
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A.2d 586, 607 (Pa. 2007) (“[W]here a defendant requests a jury instruction 

on a defense, the trial court may not refuse to instruct the jury regarding the 

defense if it is supported by evidence in the record; it is for the trier of fact to 

pass upon that evidence and improper for the trial judge to exclude such 

consideration by refusing the charge.” (cleaned up)). Accord 

Commonwealth v. Roxberry, 602 A.2d 826, 828 (Pa. 1992) (holding 

counsel was ineffective in failing to object to the absence of an alibi jury 

instruction upon rejecting the Commonwealth’s argument that the defendant’s 

alibi testimony was not corroborated, stating “[b]ecause credibility is 

indisputably the exclusive province of the jury, we cannot properly permit a 

judge, under the guise of exercising discretion, to remove the alibi issue from 

the jury merely because the judge finds the evidence incredible”); 

Commonwealth v. Weber, 189 A.3d 1016, 1026 (Pa.Super. 2018) (holding 

that trial court erred in not instructing the jury as to the personal safety 

defense to justify the defendant’s failure to obey a police instruction to stop 

his vehicle; once the defendant invoked the defense by expressing a 

subjective concern for his own safety, “any determination regarding the 

reasonableness of that subjective concern was the exclusive province of the 

jury”).

The Majority alternatively holds that Barone was not prejudiced by 

counsel’s failure to request a voluntary manslaughter instruction because the 

fact that the jury convicted Barone of first-degree murder establishes that it 

would not have reached a different result were the omitted charge given. The 
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Majority maintains that the outcome of the trial would have been the same 

even if the jury was informed that it could convict Barone of involuntary 

manslaughter since it “clearly determined that Barone acted with malice in an 

unjustified manner in using deadly force[.]” Majority Memorandum at 11. I 

disagree. 

“[A] killing is excused in the name of self-defense only if the slayer 

reasonably feared for his life. An unreasonable belief that one’s life is in 

jeopardy will not excuse a killing, but it will reduce the degree to voluntary 

manslaughter.” Commonwealth v. McNeil, 439 A.2d 664, 669 (Pa. 1981) 

(cleaned up). Barone’s jury was told the first of those principles: “a killing 

by a person who has the specific intent to kill is a killing with malice provided 

that it is also without circumstances reducing the killing to a lawful justification 

or excuse.” N.T. Trial, 8/20/15, at 178. However, it was not told that “where 

a defendant acts under an unreasonable fear that he is in danger of serious 

bodily harm, there may be a direct and specific intent to kill, and yet the 

offense may constitute voluntary manslaughter.” Commonwealth v. Nau, 

373 A.2d 449, 452 (Pa. 1977) (cleaned up).

Without the benefit of a voluntary manslaughter instruction, the jury 

was left to believe that, if Barone fired his weapon with the specific intent to 

kill, the only basis for not finding him guilty of first-degree murder was if he 

reasonably acted in self-defense or defense of others. I acknowledge that it 

is entirely possible that the jury’s verdict was based upon a conclusion that 
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Barone was the aggressor, that he had a duty to retreat but failed to do so, 

or that he did not actually fear for the safety of anyone in his group. 

However, it is also completely plausible, and consistent with the 

instructions that the jury received, that its verdict was based upon the 

determination that Barone fired his weapon with the specific intent to kill and 

the unreasonable belief that doing so was necessary to defend himself or his 

companions. Accord Commonwealth v. Monroe, 322 A.2d 100, 101 (Pa. 

1974) (holding, where the defendant had argued with an armed man in a bar 

for insulting his sister, and subsequently fired a gun at the armed man’s 

brother-in-law as soon as he and two other men approached the defendant 

threateningly, that the defendant would be guilty of voluntary manslaughter, 

not murder, if his hasty use of deadly force was actually motivated by a fear

that his life was in danger, even if the fear was unreasonable). 

To me, this possibility that the jury could have convicted Barone of firstdegree murder because it was unaware that imperfect self-defense negated 

the malice element of the crime, sufficiently erodes confidence in the outcome 

of the proceedings to establish prejudice. See, e.g., Commonwealth v. 

Little, ___ A.3d ___, 2021 PA Super 7 (Pa.Super. January 15, 2021) 

(reiterating that the prejudice standard—"a degree of likelihood sufficient to 

undermine confidence in the outcome of the proceedings”—“is not a stringent 

one, as it is less demanding than the preponderance standard” (cleaned up)).

For the above reasons, I would hold that Barone has established that 

his claim that counsel was ineffective in failing to request an imperfect-self-
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defense voluntary manslaughter charge has arguable merit, and that he was 

prejudiced by the omission. Rather than affirm the order dismissing Barone’s 

PCRA petition, I would remand for a hearing on the question of whether 

counsel had a reasonable basis for failing to request the instruction. See 

Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa. 2011) (providing that 

where a PCRA petitioner raises allegations of counsel’s lack of a reasonable 

basis, the issue generally should be determined following an evidentiary 

hearing).4 Accordingly, I respectfully dissent. 

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4 Barone alleged that counsel’s failure to request the justification charge was 

not a reasoned trial strategy, but the result of substance abuse issues that 

affected counsel during trial.