J. S70010/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

LAWRENCE PICKENS, : No. 2795 EDA 2017

:

 Appellant :

Appeal from the Judgment of Sentence, April 26, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0002510-2016

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 22, 2019

Lawrence Pickens appeals the April 26, 2017 judgment of sentence in 

which the Court of Common Pleas of Philadelphia County sentenced him to 

an aggregate term of life imprisonment for murder in the first degree, 

violation of the Uniform Firearms Act, and possession of an instrument of 

crime.1 After careful review, we affirm. 

The facts, as recounted by the trial court, are as follows: 

Before midnight on August 6, 2015, the decedent[,]

Moses McMillian[,] borrowed money from his sister 

Jazzmen McMillian and walked to the Happy Garden 

Chinese Store at the intersection of Norris and 

Croskey Streets in North Philadelphia. There, the 

decedent encountered two juvenile females, sisters 

A.D. and T.D., aged fourteen and fifteen, 

respectively. The three proceeded to argue with 

 

1 18 Pa.C.S.A. §§ 2502, 6106(a)(1), and 907(a), respectively.
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each other, whereupon one of the sisters slapped the 

decedent. 

The decedent returned to his home at 1931 North 

Croskey Street and informed Jazzmen McMillian, his 

brother Michael McMillian, family friend 

Jimmy Flippen, and other men at the house that he 

had been attacked at the Chinese store. The group 

accompanied the decedent back to the store, where 

they verbally confronted A.D. and T.D. and returned 

home. 

A.D. and T.D. ran to their home, where they 

encountered their cousin Taleia Travers and 

recounted the events that occurred at the Chinese 

store. Travers then joined with her friends Yasmene 

“Momma’s” Johnson, Ra’Shonda “Ray-Ray” Mack, 

and Roshaanda “Mommas” Tolbert and proceeded to 

the McMillian home at 1931 North Croskey Street, 

rang the front doorbell and challenged 

Jazzmen McMillian to a fight. 

Travers’ group, comprised primarily of females, and 

Jazzmen McMillian’s group, comprised primarily of 

males and containing the decedent, proceeded to the 

middle of the block to continue the dispute. The 

argument escalated into a fist fight between Travers 

and Jazzmen McMillian. When it appeared that 

Travers was winning the fight, the decedent 

intervened by punching Travers. After Mack, 

Johnson, and Tolbert began kicking 

Jazzmen McMillian, the decedent pushed them away 

from his sister. The McMillian group then retreated

back to 1931 North Croskey Street. 

Immediately after the fight, Ra’Shonda Mack called 

the father of her child, [appellant], and informed him 

that the decedent assaulted her during the fight.

Shortly thereafter, [appellant], armed with a black 

revolver, arrived on foot. He was accompanied by a 

male identified as “Spaz,” who rode in on a bicycle.

[Appellant] showed Mack the revolver and travelled 

with the group back to 1931 North Croskey Street.
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Approximately twenty minutes after the fight 

between Travers and Jazzmen McMillian occurred, 

the decedent, Michael McMillian, and Flippen 

responded to their doorbell and discovered the 

Travers group, with [appellant] in front of their 

home. There, Mack attempted to goad 

Jazzmen McMillian, who was upstairs with her 

children, into returning outside to fight. During a 

discussion between Mack and the McMillians, 

[appellant] asked Flippen, “Damn, you going to let 

your man put his hands on my baby mom?”

During the confrontation, Jazzmen McMillian stuck 

her head out of the upstairs window and began to 

argue with Mack. A fight then erupts between the 

two groups, with Mack and Tolbert throwing punches 

at the decedent and his brother, and Mack spraying 

both groups with Mace. In the ensuing chaos, 

[appellant] approached the decedent and shot him in 

the chest and abdomen. 

The decedent clutched his chest and ran upstairs to 

the second floor living space, leaving a blood 

trial [sic]. After he collapsed on the second floor, 

Jazzmen McMillian flagged down Housing Authority 

Police Officers Kyle Barrie and Terrance Matthews, 

who transported the decedent to Temple University 

Hospital where he was pronounced dead on 

August 8, 2017 at 2:03 a.m.

Deputy Chief Medical Examiner Dr. Albert Chu, an 

expert in forensic pathology, examined the 

decedent’s autopsy report and concluded that the 

cause and manner of death was homicide by multiple 

gunshot wounds. The decedent suffered a fatal, 

perforating gunshot wound to his right chest that 

passed through his right lung and exited the right 

side of the upper back. A second projectile entered 

the right side of the decedent’s central abdomen, 

travelled through soft tissue, and was recovered 

from the right hip. The entrance wounds exhibited 

evidence of stippling, indicating that the barrel of the 

shooter’s gun was between two and two and one-half 

feet away from the decedent when he shot him.
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After the shooting, [appellant] handed the pistol to 

Travers, who returned to the Dennis sisters’ home at 

2311 Norris Street and threw the weapon on a 

couch. Yasmene Johnson retrieved the gun from the 

couch and left the house. The weapon was never 

recovered.

On August 17, 2015, United States Marshals, 

working in conjunction with the Philadelphia Police 

Fugitive Squad, apprehended [appellant] at 

2400 Glenwood Street in Philadelphia. During his 

arrest, [appellant] attempted to escape via the back 

door.

In August and September 2015, Michael McMillian, 

Tolbert, Johnson, and Mack gave statements to 

Philadelphia Police Detectives that identified 

[appellant] as the shooter. In April 2016,

approximately eight months after [appellant’s] 

arrest, Travers gave a statement wherein she 

identified [appellant] as the shooter.

Trial court opinion, 10/24/17 at 2-5 (citations to record omitted).

Following the conviction and sentencing, appellant filed a 

post-sentence motion. On May 12, 2017, the trial court denied the motion. 

Appellant did not file an appeal. On July 31, 2017, appellant sought 

reinstatement of his appellate rights nunc pro tunc through a Post 

Conviction Relief Act2 (“PCRA”) petition. On August 7, 2017, the PCRA court 

granted the petition and reinstated appellant’s appellate rights. On 

August 29, 2017, appellant filed a notice of appeal. On September 6, 2017, 

the trial court ordered appellant to file a concise statement of errors 

 

2 42 Pa.C.S.A. §§ 9541-9546.
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complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On September 27, 

2017, appellant complied with the order. On October 24, 2017, the trial 

court filed an opinion, pursuant to Pa.R.A.P. 1925(a).

On appeal, appellant raises the following issues for this court’s review:

I. Is [appellant] entitled to a new trial 

whereas [sic] here, the verdict is not 

supported by the weight of the evidence?

II. Is [appellant] entitled to a new trial where, as 

here, the [t]rial [c]ourt erred when it 

instructed the jury in such a fashion that same 

was a directed verdict?

Appellant’s brief at 3.

Initially, appellant contends that the verdict was against the weight of 

the evidence. A review of the argument section of his brief reveals that 

appellant is not raising a weight claim but rather the sufficiency of the 

evidence to sustain the verdict. We find this issue waived as the issue is 

completely undeveloped in the brief. The argument consists of one

half-page, cites three cases, but never addresses any of the evidence.

Appellant next contends that he must be awarded a new trial because 

the trial court erred when it instructed the jury.

This court has adopted the following standard of review with respect to 

assessing jury instructions on appeal:

A trial court has discretion in instructing the jury, 

and “can choose its own wording so long as the law 

is clearly, adequately, and accurately presented to 

the jury for its consideration. Only where there is an 

abuse of discretion or an inaccurate statement of the 
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law is there reversible error.” Commonwealth v. 

Hawkins, 549 Pa. 352, 701 A.2d 492, 511 (1997) 

(citations omitted). Furthermore:

a trial court need not accept counsel’s 

wording for an instruction, as long as the 

instruction given correctly reflects the 

law. It is axiomatic that, in reviewing a 

challenged jury instruction, an appellate 

court must consider the charge in its 

entirety, not merely isolated fragments, 

to ascertain whether the instruction fairly 

conveys the legal principles at issue. 

Instructions will be upheld if they 

adequately and accurately reflect the law 

and are sufficient to guide the jury 

properly in its deliberations.

Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 

215, 242-43 (2007) (citations omitted).

Commonwealth v. Vucich, 194 A.3d 1103, 1111 (Pa.Super. 2018),

appeal denied, 199 A.3d 885 (Pa. 2018).

Appellant argues that the trial court issued a binding instruction that 

limited the jury’s ability to render a verdict of its own choosing. In the 

instruction in question, the trial court stated:

In order to convict the defendant of first-degree 

murder, there are three specific elements that the 

Commonwealth must prove beyond a reasonable 

doubt. First, that Moses McMillian is dead; second, 

that the defendant killed him, or the accomplice; 

and, third, that the defendant did so with the specific

intent to kill and with malice. 

So the defendant has the specific intent to kill if he 

has fully formed the intent to kill and is conscious of 

his own intention. As my earlier definition of malice

indicates, a killing by a person who has the specific 

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

willful, deliberate and premeditated. The specific 

intent to kill including the premeditation 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 the defendant can and does fully 

form an intent to kill and is conscious of that 

intention. 

When deciding whether the defendant had the 

specific intent to kill, you should consider all the 

evidence regarding his words and conduct in 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 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. 

If you find that the defendant -- if you find that the 

Commonwealth has proven all of the elements 

beyond a reasonable doubt, you must find the 

defendant guilty. 

If you find that the Commonwealth has proven all of 

element -- has not proven all of the elements beyond 

a reasonable doubt, you must find the defendant not 

guilty.

Notes of testimony, 4/26/17 at 150-151.

The trial court then gave a similar instruction with regard to 

third-degree murder.

Appellant argues that the trial court instructed the jury to consider first 

the charge of first-degree murder before considering other possible verdicts 

and that the jury must find appellant guilty of first-degree murder if the 

elements were proven. He argues that this instruction as to the order of the 
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instructions precluded the consideration of a lesser charge and that the use 

of the word “must” forced the jury to find him guilty of first-degree murder.

However, a review of the instructions does not support appellant’s 

assertions. First, the trial court later instructed the jury that it could 

consider first-degree murder and then third-degree murder, but was not 

required to do so. Specifically, the trial court stated, “Remember, if you go 

this way, if you conduct your deliberations in this way, you have to find each 

element of the charge beyond a reasonable doubt. So you can proceed in 

that way. You don’t have to proceed in this way.” Id. at 155.

With respect to the use of the word “must,” the trial court explained its 

decision:

[Appellant] fails to establish that this court abused 

its discretion or gave the jury an erroneous 

statement of law. The above charge accurately 

states each element of the charge, including the 

jury’s discretion in considering circumstantial 

evidence and its obligation to acquit [appellant] if 

the Commonwealth fails to prove all the elements of 

the crime beyond a reasonable doubt. This [c]ourt, 

throughout the entirety of its charge, repeatedly

informed the jury that the Commonwealth carried 

the burden of proving each element of the crimes 

charged beyond a reasonable doubt. Although 

[appellant] suggests that a softening of language 

with regard to the jury’s suggested actions if the 

Commonwealth meets its burden is appropriate, the 

language employed by the [c]ourt is an accurate 

statement of the law.[Footnote 3] This [c]ourt’s use 

of the word “must,” as opposed to “should,” was well 

within its discretion.

[Footnote 3] After trial counsel objected 

to this [c]ourt’s use of the word “must,”
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this [c]ourt removed the reference from 

the elements sheets for First and 

Third-Degree Murder that were sent back 

to the jury room.

Trial court opinion, 10/24/17 at 6-7 (additional footnote omitted).

This court agrees with the trial court that the trial court did not abuse 

its discretion when it issued the jury instruction.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/22/19