J-A17025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHANE PAYNE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 655 EDA 2016

Appeal from the Judgment of Sentence February 19, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0008200-2014

BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.* 

MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 08, 2017

Appellant, Shane Payne, appeals from the judgment of sentence of 

sixteen and one-half to thirty-three years of incarceration, imposed February 

19, 2016, following a bench trial resulting in his conviction for voluntary 

manslaughter, possession of an instrument of crime, three Uniform Firearms 

Act violations (VUFAs), and recklessly endangering another person.1 We 

affirm.

The trial court summarized the pertinent factual background as 

follows:

On February 11, 2014, [Appellant] and Erick Roseborough 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 2503(a)(1), 907(a), 6105(a)(1), 6106 (a)(1), 6108, and 

2705, respectively.
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arrived on the corner of 40th and Poplar streets in Philadelphia 

where they remained, either outside on the corner or inside of 

the corner store, until the decedent, Marquis Williams, showed 

up. Williams entered the store, and [Appellant] followed him in. 

Shortly thereafter, Williams attempted to leave the store, but 

[Appellant] blocked his exit and the two got into a heated 

confrontation. During this fray, [Appellant] lifted up his shirt, 

revealing that he had a .45 caliber handgun with him. 

[Appellant] and Roseborough then left the grocery store while 

[Williams] retreated to the rear of the market and called his 

friend, Antoine Ball, who arrived at the store shortly after. Now 

armed, [Williams] and Ball left the store and walked down 40th 

Street. A few minutes later, [Appellant] walked back into the 

store, quickly looked around, and realizing [Williams] was no 

longer in the store, exited and walked down 40th Street in the 

same direction Williams and Ball had gone. A confrontation 

between [Appellant], Roseborough, Williams and Ball ensued, in 

which Roseborough threw a punch at Williams, and [Appellant] 

drew his gun and then Williams followed suit. Williams fired two 

shots from his .357, and hit Roseborough once in the leg. 

[Appellant] had a .45 caliber handgun, which he shot five times, 

striking Williams twice, including one shot directly to the center 

of his forehead, causing his death.

Trial Ct. Op. (TCO), 7/18/2016, at 2-3.

Approximately one week after this incident, Appellant was arrested 

and charged with third degree murder, possession of an instrument of crime, 

three VUFAs, and recklessly endangering another person. See Criminal 

Information Sheet, 7/23/2014. At trial on December 7, 2015, Appellant 

asserted that he acted in self-defense. See Notes of Testimony (N.T.), 

12/7/2015, at 124-125, 132-134, 142-143. The trial court found him guilty 

of the charges; however, the court reduced the charge of third degree 

murder, and Appellant was convicted of voluntary manslaughter. See Trial 

Ct. Op. (TCO), 7/18/2016, at 4. 
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Appellant was sentenced as described above on February 19, 2016. 

Appellant did not file post-sentence motions. Thereafter, Appellant timely 

filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement.2 

The trial court issued a Pa.R.A.P. 1925(a) opinion on July 18, 2016. 

On appeal, Appellant sets forth the following question for our review:

Did the Commonwealth fail to disprove self-defense beyond a 

reasonable doubt where [Appellant] returned fire only after 

[Williams] shot a man just a few feet from [Appellant]?

Appellant's Br. at 5.3

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2 Appellant timely filed a motion for extension of time to file a 1925(b) 

statement. The trial court granted this request and extended the deadline to 

twenty-one days after defense counsel’s receipt of all notes of testimony. 

Order, 3/17/2016. See Pa.R.A.P. 1925(b)(2) (providing that the trial court 

may enlarge the time period for filing a timely 1925(b) statement upon good 

cause shown). Counsel for Appellant certified that he received the notes of 

testimony on May 5, 2016; the 1925(b) statement was filed May 25, 2016. 

Accordingly, the statement was timely. 

3

In his brief, Appellant makes two arguments: (1) that the Commonwealth 

failed to disprove self-defense beyond a reasonable doubt, and (2) that the 

Commonwealth failed to disprove that the killing was not justified based on 

defense of others. The Commonwealth contends that Appellant waived the 

right to assert defense of others by failing to include it his Pa.R.A.P. 1925(b) 

statement. See Commonwealth’s Br. at 6 n.2. 

Our review of the record reveals that Appellant did not argue that he acted 

in “defense of others” at trial. The only mention of “defense of others” was 

by the assistant district attorney during closing argument. See N.T. at 137. 

Appellant’s Concise Statement presents a blanket challenge to the 

sufficiency of the evidence to support any of his convictions, without 

specifying any defense of others claim. Further, the lack of meaningful 

analysis of this claim in the trial court’s 1925(b) opinion suggests that 

Appellant failed to preserve his argument based on “defense of others.” 

(Footnote Continued Next Page)
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Appellant challenges the sufficiency of the evidence presented at trial 

to disprove his claim of self-defense. See Appellant's Br. at 15. Our 

standard of review is well settled.

Our standard when reviewing the sufficiency of the evidence is 

whether the evidence at trial, and all reasonable inferences 

derived therefrom, when viewed in the light most favorable to 

the Commonwealth as verdict[-]winner, are sufficient to 

establish all elements of the offense beyond a reasonable doubt. 

We may not weigh the evidence or substitute our judgment for 

that of the fact-finder. Additionally, the evidence at trial need 

not preclude every possibility of innocence, and the fact-finder is 

free to resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of the 

evidence, the fact-finder is free to believe all, part, or none of 

the evidence. For purposes of our review under these principles, 

we must review the entire record and consider all of the 

evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006) 

(quotations and citation omitted).

(Footnote Continued) _______________________

See, e.g., Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa. Super. 

2009) (finding issues waived where on 1925(b) statement did not put trial 

court on notice that appellant intended to raise the argument on appeal). 

For the first time on appeal, Appellant asserts that the evidence was 

insufficient to disprove that he acted in defense of others. See Appellant's 

Br. at 18, 22-23. “Issues not raised in the lower court are waived and 

cannot be raised for the first time of appeal.” Pa.R.A.P. 302(a). “New legal 

theories cannot be raised on appeal.” Commonwealth v. Truong, 36 A.3d 

592, 598 (Pa. Super. 2012) (en banc), appeal denied, 57 A.2d 70 (Pa. 2012) 

(citing Commonwealth v. Hanford, 937 A.2d 1094, 1099 n.3 (Pa. Super. 

2007), appeal denied, 956 A.2d 432 (Pa. 2008)); see Pa.R.A.P. 302(a). 

Accordingly, we deem this argument to be waived. 
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Where there is a claim of self-defense, the Commonwealth 

has the burden to prove beyond a reasonable doubt that the 

killing was not committed in self-defense. In order to disprove 

self-defense, the Commonwealth must prove beyond a 

reasonable doubt one of the following elements: (1) that the 

defendant did not reasonably believe it was necessary to kill in 

order to protect himself against death or serious bodily harm, or 

that the defendant used more force than was necessary to save 

himself from death, great bodily harm, or the commission of a 

felony; (2) that the defendant provoked the use of force; or (3) 

that the defendant had a duty to retreat and that retreat was 

possible with complete safety. See 18 Pa.C.S.A. § 505(b)(2); 

see also Commonwealth v. Hill, 629 A.2d 949, 952 (Pa. 

Super. 1993). If the Commonwealth establishes any one of these 

three elements beyond a reasonable doubt, then the conviction 

is insulated from a defense challenge to the sufficiency of the 

evidence where self-protection is at issue. See Hill, 629 A.2d at 

952.

Commonwealth v. Burns, 765 A.2d 1144, 1148–49 (Pa. Super. 2000) 

(internal citation omitted).

Appellant contends that the Commonwealth failed to establish that he 

provoked the use of force and that his use of deadly force was not justifiable 

in self-defense. According to Appellant, some of the trial court’s factual 

findings were not supported by the record. He maintains that the evidence 

that the trial court relied upon to conclude that Appellant threatened 

Williams with a handgun at the store “was, at best, equivocal.” Appellant's 

Br. at 17, 19. He also challenges the court’s finding that Appellant “fired five 

shots at [Williams] before [Williams] shot [Roseborough].” Id. at 20. 

According to Appellant, if the court had properly considered this evidence, 

then the Commonwealth would have failed to establish “that [Appellant] 
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provoked the later confrontation and then responded with excessive force.” 

Id. at 20. 

In response, the Commonwealth maintains that it presented sufficient 

evidence of provocation to disprove Appellant’s claim of self-defense beyond 

a reasonable doubt. See Commonwealth's Br. at 7-9. The Commonwealth 

maintains that the evidence established that Appellant threatened Williams 

with a gun inside the store and that Appellant initiated the confrontation with 

the victim that resulted in the killing. Id. Thus, the Commonwealth 

concludes that Appellant cannot make out a valid self-defense claim. See

id. (citing Commonwealth v. Johnson, 331 A.2d 473, 476 (Pa. 1975) (“a 

valid claim of self-defense cannot be made out by the killer when the killer 

introduces a weapon into the encounter without provocation”)).

Here, the issue is whether the Commonwealth presented sufficient 

evidence of provocation to disprove Appellant’s claim of self-defense beyond 

a reasonable doubt. At trial, the Commonwealth presented video 

surveillance footage depicting the incident from various angles inside and 

outside of the store. The video footage was interpreted for the court by a 

detective at trial.4 The trial court found that Williams was in a corner store 

____________________________________________

4 We adhere to the findings of the fact finder, which are supported by the 

record and testimony of the detective who interpreted the video-taped 

events at trial. See N.T., 12/7/2015, at 28-80.
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and attempting to leave “when [Appellant] blocked his exit and the two 

argued.” TCO at 4 (citing Notes of Testimony (N.T.), 12/7/2015, at 39-42). 

The Commonwealth also presented the eyewitness testimony of 

Appellant’s cohort, Roseborough. Roseborough’s testimony confirms that 

Appellant and Williams had a very heated conversation at the door, which 

lasted about thirty seconds. See id. at 95, 100. The Commonwealth 

replayed the video in slow motion at trial for the factfinder. See id. at 96-

98. Roseborough testified that Appellant “pulled his pants up” while 

standing at the door and the Commonwealth suggested that Appellant 

revealed something under his shirt. Id. at 97-98. Roseborough testified 

that “[i]t look[ed] like a weapon.” Id. at 98. Based on Roseborough’s 

testimony, the court found that during this conversation, “Appellant 

brandished a .45 caliber handgun and threatened Williams.” TCO at 4 (citing 

N.T. at 96-98). 

Based on the video footage, the court found that Appellant and 

Roseborough followed Williams and confronted him again outside of the 

store. See TCO at 4. Roseborough’s testimony confirms that they did so 

because they were “looking for weed.” See N.T. at 93. When they 

approached Williams, Roseborough asked Williams for some weed and 

Williams said “get the **** out of here.” Id. Roseborough admitted to 

pushing or taking a swing at Williams and then Williams pulled a gun and 

shot Roseborough in the leg. See N.T. at 90-91, 94. After Williams pulled 
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his gun, Appellant fired several times at Williams, striking him twice. See 

id. at 90-91, 116-118. 

The trial court’s findings with regard to provocation are supported by 

the record. We reject Appellant’s arguments that the trial court erred in 

making its factual findings. Evidence that an actor introduced a weapon into 

the encounter without provocation “operates to deny the killer’s assertion 

that he was free from fault in provoking the difficulty.” Johnson, 331 A.2d 

at 476. Here, the evidence overwhelmingly proved that Appellant was not 

free from fault because he voluntarily provoked or continued the encounter 

which resulted in the killing, thereby violating his duty to retreat. 

Relying on Commonwealth v. Samuel, 590 A.2d 1245, 1248 (Pa. 

1991), Appellant argues that he did not forfeit his right to use self-defense 

by brandishing a weapon. He also argues that brandishing a weapon did not 

establish his intent to cause serious bodily injury. See Appellant's Br. at 25. 

However, Appellant’s reliance on Samuel is misplaced. In Samuel, the 

Court held that a defendant merely holding his gun at his side did not 

constitute provocation because: 1) there was no other evidence of the 

defendant’s intent to cause death or serious bodily injury as he had held the 

gun at his side in a nonthreatening manner; and 2) following an initial 

encounter, the defendant put down his gun, the intruder left the room but 

then re-entered into the living room with a sawed-off shotgun, placing the 

intruder in the position of aggressor. See Samuel, 590 A.2d at 1248-49. 
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Unlike in Samuel, Appellant approached Williams on both occasions. 

Appellant was continuously in the position of the aggressor. There is no 

justification available where the actor provoked the encounter that leads to 

the killing.

Further, Appellant’s reliance on Commonwealth v. Edwards, 292 

A.2d 361 (Pa. 1972), is inapposite. In that case, the Supreme Court 

recognized that “appellant was assaulted in his own home, which relieved 

him of any obligation to retreat.” Edwards, 292 A.2d at 364. Here, the 

evidence clearly established that the events took place in a public place. 

The second time Appellant approached Williams, Williams’ statement “get 

the **** out of here” clearly indicated the tenor of the situation and gave 

Appellant an opportunity to retreat, which he ignored. N.T. at 93. Unlike in 

Edwards, Appellant was not relieved of any obligation to retreat. 

The evidence, when properly viewed in the light most favorable to the 

Commonwealth as verdict winner, established that Appellant confronted 

Williams with a deadly weapon and then followed Williams to start a second 

confrontation that resulted in the killing. Here, the evidence was sufficient 

to disprove Appellant’s claim of self-defense beyond a reasonable doubt 

based on evidence that Appellant “provoked the use of force.” See Burns, 

765 A.2d at 1149 (citing 18 Pa.C.S. § 505(b)(2)(i)). This evidence 

established that Appellant was not free from fault in provoking the encounter 

that led to the killing. See Johnson, 331 A.2d at 476. Under these 
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circumstances, the use of deadly force in self-defense was not justified. See 

18 Pa.C.S. § 2503(a); see also 18 Pa.C.S. § 505(b)(2)(i)-(ii). Accordingly, 

Appellant’s sufficiency challenge fails. 

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2017