J-S03018-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN GRAZIOLI

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 685 WDA 2019

Appeal from the Judgment of Sentence Entered April 5, 2019

In the Court of Common Pleas of Erie County Criminal Division

at No(s): CP-25-CR-0001341-2018

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.: FILED MARCH 10, 2020

John Grazioli (Appellant) appeals from the judgment of sentence 

entered in the Erie County Court of Common Pleas, following his jury-trial 

convictions of first degree murder1 and related offenses. Appellant argues 

the trial court erred in refusing to provide a voluntary intoxication jury 

instruction. We affirm. 

Appellant shot his wife, Amanda Grazioli (Wife), in the back of the 

head as she slept. On appeal, Appellant claims he was intoxicated when he

placed a loaded handgun to the head of his wife and fired the weapon ending 

her life. The trial court summarized the evidence presented by the 

Commonwealth at trial as follows:

 

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2702(a)(1).
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Exactly one month before the murder, Appellant purchased a 

firearm from a local sports store. [N.T. Trial, 2/5/19, at 153-

55]. At trial, he claimed that the gun was intended as a birthday 

present for [Wife] due to their concern over violent crime in Erie. 

[N.T. Trial, 2/6/19 afternoon, at 16-17]. He also claimed that 

when he took the gun out of the closet at the time of the 

murder, his purpose in doing so was to give her [the] birthday 

present. [Id. at 31, 33.]

[Wife’s] birthday, however, was still a month away. [N.T. 

Trial, 2/6/19 morning, at 33-35.2]

Trial Ct. Op., 8/8/19 at 6. Furthermore, Appellant left the gun’s instruction 

manual, the original plastic case, the “valuable” holster, and a box of 

ammunition at his office. Also, some ammunition remained missing. Id.

About ten days before the murder, . . . Appellant told his ex-wife

[Erica Grazioli, (Ex-Wife)] that he was “getting [Wife] out of our 

lives” and begged her to “please, please keep this secret until I 

serve her . . . . ” [N.T., 2/5/19, at 130]. His ex-wife assumed 

he was merely talking about serving divorce papers. No divorce 

papers, however, turned up during police investigations of the 

case. [N.T., 2/6/19 morning, at 41]. Appellant presented no 

evidence or witness to show that he had gone to an attorney to 

have such papers prepared.

Id. at 5.

Finally, the day before the murder, March 7, 2018, 

Appellant e-mailed his ex-wife and said “I hope to have 

everything resolved by Friday [March 9, 2018].” . . . Instead, by 

the end of the next day, [Wife] was dead.

Id. at 6. 

Appellant made sure his children would not be present at the 

scene, arranging to have them stay with his ex-wife during the 

 

2 The cover page of this transcript identifies the proceedings as “Jury Trial -

Day 3 (Morning Session)” and held on “Monday, February 6, 2019.” 

However, we note the correct date of the proceedings was Wednesday, 

February 6, 2019.
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period of time when the crime would be committed. [N.T., 

2/5/19, at 131-32].

Id. at 5.

On March 8, 2018, at 2:16 p.m., Appellant called Ex-Wife “and clearly 

expressed that he had killed” Wife. Trial Ct. Op. at 8. Appellant also told 

Ex-Wife he “had the gun with him and that he was going to kill himself.” 

N.T., 2/5/19, at 139. Ex-Wife asked her co-worker to call the police, and 

the Millcreek Township Police responded to Appellant’s home. Id. at 25-26, 

141. Responding police officers discovered Wife’s body in her bed, covered 

with a blanket. Id. at 33. Wife sustained a gunshot to the back of her 

head. Id. at 52.

The trial court recounted:

 Not long after his conversation with [Ex-Wife], Appellant 

surrendered to and was arrested by the police.

 At 4:00 PM, after his arrest, Appellant was brought into the 

Millcreek Police station. An officer with a significant history of 

dealing with drug-impaired individuals testified Appellant 

showed no signs of intoxication when he was brought to the 

station. Appellant showed: (1) no slurred speech, (2) no 

impaired movement, (3) no illness, and (4) no smell of 

alcohol. [N.T., 2/5/19 at 99-103]. And during his interview 

with the police directly following, during which he showed no 

signs of intoxication, Appellant never claimed that killing 

[Wife] was an accident.

Trial Ct. Op. at 8-9.

With respect to Appellant’s claim he was intoxicated at the time of the 

shooting, the trial court highlighted Appellant’s relevant actions after the 
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shooting:

 By 6:45 AM, Appellant was sending text messages to his 

children. The texts included clearly expressed sentiments 

such as “Good morning! I love you both with all my heart.”

[N.T., 2/6/19 morning, at 71].

 The police found [Wife’s] pink cell phone inside Appellant’s car 

after they arrested him. [Id. at 13]. Review of the phone’s 

contents revealed that by 9:00 AM Appellant had begun using 

that phone to text [Wife]’s co-workers and friends to make it 

appear that she was still alive, specifically by sending 

messages saying that she was ill and would miss work, etc.

[N.T., 2/5/19, at 85-96].

* * *

 Appellant was sober enough to leave a note in the room 

where [Wife]’s body was later discovered, saying:

“I killed [Wife]. Next of kin Denise Katz . . . My 

attorney is John Evanoff. He has my will. Phone 

number 814-490-3156. My ex-wife will need access to 

the house to get our children’s things. Everything goes 

to them. She has keys. Erica Grazioli, 814-881-2141. 

The dogs are harmless. They are in the basement, Ari 

and Chloe. If my kids want them, they can take the 

dogs. Sorry for all of this. John Grazioli. The password 

for my phone (black) is 039280.” [Id. at 39].

Trial Ct. Op. at 7-8.

Additionally, Appellant placed a box on Ex-Wife’s porch, which 

contained a recently-made will and notes to Ex-Wife and their children, “all 

clearly and concisely written.” Trial Ct. Op. at 4, 8. In the letters to his 

children, Appellant “expresse[d] frustration for how badly [Wife] treated” 

them. Id. at 4. 
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Appellant even planned for his two dogs to be taken care of. 

After locking them in cages in his basement, he left a note for 

the police stating that “The dogs are harmless. They are in the 

basement . . . If my kids want them, they can take the dogs.”

[N.T., 2/5/19, at 39].

Id. at 5.

The case proceeded to a jury trial on February 4, 2019. Ex-Wife 

testified that during her telephone conversation following the shooting, “at 

no point [had Appellant] claimed that the killing was a result of any form of 

drug impairment or intoxication. She did not testify that he claimed it was 

an accident.” Trial Ct. Op. at 8, citing N.T., 2/5/19, at 142.

Appellant testified on his own behalf to the following. On the evening 

of March 7, 2018, he and Wife both consumed alcohol, cocaine, and 

marijuana. N.T., 2/6/19 afternoon, at 23, 25-28. Appellant additionally 

took one Ativan. Id. at 29. Later, he and Wife were in bed, and Wife was 

facing away from him because the dog was lying against her. Id. at 33. 

Appellant told Wife, “Here’s your present.” Id. Wife could not roll over 

because of the dog, but she turned her head and said, “Thanks, Babe.” Id.

Appellant showed Wife the gun, and pulled the “slide” on it to show her how 

to load the weapon. Id. At trial, Appellant stated he did not know if the gun 

had a safety mechanism, but he believed there was a “push button” to 

unload the weapon. Appellant testified that as he attempted to unload the 

gun, he pressed “a button on the side” with his thumb and squeezed the 

trigger causing the weapon to discharge into the back of Wife’s head. Id. at 
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34. After shooting Wife, Appellant pulled the covers over her head. Id. at

74. Later that morning, he wrote letters to his children. Id. at 36. Instead 

of calling authorities, Appellant went to eat lunch and attend mass, where he 

had the opportunity to see his children. Id. at 37. Appellant did not call any 

other witnesses and did not present expert testimony. Significantly, he did 

not present any evidence that would corroborate his claim of intoxication.

Finally, we note firearms expert witness, Pennsylvania State Police 

Corporal Dale Wimer, testified that Appellant’s “firearm discharged at 

approximately 10 pounds of trigger-pull weight,” and it was highly unlikely 

“that the firearm could discharge accidently.” N.T. Trial, 2/6/19 morning, at

54. 

Appellant requested the trial court provide a voluntary intoxication jury 

instruction.

3

 The Commonwealth objected and the court denied Appellant’s 

request. N.T. Trial, 2/7/19, at 5.

4

 The jury found Appellant guilty of murder 

of the first degree, possession of an instrument of crime, aggravated 

assault, recklessly endangering another person, and carrying a firearm 

without a license.5 On April 5, 2019, the court sentenced Appellant to an 

 

3 See Pa. SSJI (Crim) 8.308(B) (jury may be instructed voluntary 

intoxication is defense to crime of murder in first degree).

4 The cover page of this transcript identifies the proceedings as “Jury Trial 

Day 4 of 4” and held on “Thursday, February 6, 2019.” However, we note 

the correct date of the proceedings was Thursday, February 7, 2019.

5 18 Pa.C.S. §§ 907(a), 2702(a)(1), 2705, 6106(a)(2).
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aggregate term of life imprisonment without parole. Appellant did not file a 

post-trial motion.

On May 3, 2019, Appellant timely filed a notice of appeal and complied 

with the trial court’s order to file a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal.

Appellant presents one issue for our review:

Whether the trial court committed an error of law and/or abuse 

of discretion when it denied [Appellant’s] request to adopt the 

proposed point of charge of Voluntary Intoxication or Drugged 

Condition as a Defense to First Degree Murder, despite evidence 

presented through trial by both parties supporting the provision 

of this charge. 

Appellant’s Brief at 4. Appellant contends the trial court erred when it 

denied his request to adopt the proposed jury instruction of voluntary 

intoxication or drugged condition as a defense to first-degree murder.6 

Appellant cites his trial testimony that in the hours prior to Wife’s death, 

they both consumed alcohol and used cocaine and marijuana, while he also 

used the prescription drug, Ativan. Appellant argues the Commonwealth’s 

expert witness established that Wife’s toxicology screen revealed the 

presence of marijuana, Zoloft, cocaine and alcohol. Id. at 9-10, citing N.T., 

2/5/19, at 56, 60-62, 77. Further, the expert explained how a combination 

of these drugs could affect an individual’s neurobiological impulses and 

 

6 For a defendant who proves a diminished capacity defense, first-degree 

murder is mitigated to third-degree murder. Commonwealth v. 

Saranchak, 866 A.2d 292, 299 (Pa. 2005). 
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cognitive abilities. Appellant notes he was willing to submit to a blood test, 

to prove his intoxication, but officers did not conduct one. Appellant 

believes the blood test “may” have provided exculpatory evidence. Id. at 11.

Thus, Appellant argues, he presented sufficient evidence of his impairment

to warrant a voluntary intoxication jury instruction. We disagree and find no 

relief is due. 

The standard of review for a trial court’s decision to refuse a

diminished capacity jury instruction based on voluntary intoxication is an 

abuse of discretion. Commonwealth v. Clemons, 200 A.3d 441, 465 (Pa. 

2019), cert. denied, 140 S.Ct. 176 (2019).

As our Supreme Court has explained:

In examining jury instructions, our scope of review is to 

determine whether the trial court committed a clear abuse of 

discretion or an error of law controlling the outcome of the case. 

A charge will be found adequate unless the issues are not made 

clear, the jury was misled by the instructions, or there was an 

omission from the charge amounting to a fundamental error. 

Commonwealth v. Chambers, 980 A.2d 35, 49-50 (Pa. 2009) (quotation 

marks and citations omitted).

In regards to the abuse of discretion standard, we note:

When a court comes to a conclusion through the exercise 

of its discretion, there is a heavy burden to show that this 

discretion has been abused. It is not sufficient to persuade the 

appellate court that it might have reached a different conclusion, 

it is necessary to show an actual abuse of the discretionary 

power. An abuse of discretion will not be found based on a mere 

error of judgment, but rather exists where the court has reached 

a conclusion which overrides or misapplies the law, or where the 

judgment exercised is manifestly unreasonable, or the result of 
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partiality, prejudice, bias or ill-will. Absent an abuse of that 

discretion, we will not disturb the ruling of the trial court.

Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007) (citations 

omitted).

“A criminal homicide constitutes murder of the first degree when it is 

committed by an intentional killing.” 18 Pa.C.S. § 2502(a). Our Supreme 

Court has stated:

“A defense of diminished capacity negates the element of 

specific intent, and thus mitigates first-degree murder to thirddegree murder.” Commonwealth v. Padilla, . . . 80 A.3d 

1238, 1263 ([Pa.] 2013) . . . . The fact that the record contains 

some evidence that the defendant consumed an intoxicant will 

not suffice to justify a diminished capacity instruction. [Id.]. A 

defendant is entitled to the instruction only when he “was 

overwhelmed to the point of losing his faculties and sensibilities.”

Clemons, 200 A.3d at 465 (some citations omitted).

In Padilla, the defendant argued his convictions of first-degree 

murder should be vacated because the trial court erred when it instructed 

the jury there was no evidence of diminished capacity due to his ingestion of 

alcohol and/or drugs. Padilla, 80 A.3d at 1263. The Supreme Court of 

Pennsylvania, affirmed, reasoning the defendant’s own psychologist expert 

witness testified the defendant’s ability to form intent to kill was “likely 

impacted,” but he “had not lost control over his behavior.” Id. at 1266. 

The Court further noted that while the trial court instructed the jury “there 

was no evidence to support a diminished capacity defense based solely on 

drug and alcohol consumption,” the “court’s instructions explicitly allowed 
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the jury to consider the testimony regarding voluntary intoxication.” Id. at

1268.

In Clemons, the defendant challenged the denial of a voluntary 

intoxication jury instruction after being convicted of first-degree murder. 

Clemons, 200 A.3d at 465. The defendant claimed that evidence of beer 

cans and drugs at the crime scene, and the fact that he was intoxicated 

when he turned himself into authorities 24 hours after the murder, was 

sufficient for the instruction. Id. at 466. Relying on Padilla, the defendant 

further argued that a defendant asserting voluntary intoxication is entitled to 

a Padilla-like jury instruction in every circumstance. Clemons, 200 A.3d at 

467. Our Supreme Court noted the instruction provided by the court in 

Padilla conformed to the expert testimony and circumstances presented at 

that particular trial, and did not constitute reversible error on that record. 

Id. The Court clarified that its ruling in Padilla did not create a new general 

rule applicable to any defendant who seeks to argue voluntary intoxication. 

Id. The Court then concluded the defendant did not demonstrate the 

evidence of record compelled the instruction, particularly because there was 

no evidence he was sufficiently intoxicated at the time of the murder. Id. at 

465. The Court importantly noted that even if the defendant had consumed

beer, nothing in the record showed he was so intoxicated that he lost control 

of his faculties. Id. at 466.
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A diminished capacity defense based on voluntary intoxication cannot 

be asserted by mere evidence of intoxication, but rather requires evidence 

that demonstrates the defendant was intoxicated to such an extent he was 

unable to form the requisite intent. Commonwealth v. Spotz, 896 A.2d 

1191, 1218 (Pa. 2006). Moreover, “[a] defense of diminished capacity is 

only available to a defendant who admits criminal liability but contests the 

degree of guilt.” Commonwealth v. Laird, 726 A.2d 346, 353 (Pa. 1999).

In the instant matter, the trial court opined:

At trial, Appellant presented no evidence that he had been 

intoxicated to the point of losing his faculties and sensibilities at 

the time of the murder, as per Clemons. In fact, Appellant 

offered no proof that he had even been intoxicated. The vast 

majority of evidence presented at trial clearly showed that 

Appellant committed the killing as a result of a preconceived 

plan, as opposed to a temporary, drug-induced haze. There was 

insufficient evidence to require this Court to give the jury 

Appellant’s desired jury instruction. . . .

During trial, Appellant brought forward no expert witnesses 

to testify regarding the mental effects of taking the drugs he 

claimed to have been using on the night in question. He further 

presented no expert testimony regarding what amount of such 

drug use would lead to the kind of impairment he claims to have 

been under, or whether the effects of that level of drug use 

would have been obvious to people interacting with him in the 

hours that followed. The fact that the record contains some 

evidence that Appellant consumed intoxicants will not suffice to 

justify a diminished capacity instruction. [Clemons, 200 A.3d at 

465]. While a number of circumstances make clear that drugs 

were present in [Appellant’s] home on the night of the murder, 

no proof was presented to the Trial Court that Appellant used 

those drugs himself on that night. The only proof of drug use 

was in regards to [Wife], who had drugs in her system at the 

time of her death. [N.T., 2/5/19, at 56]. Even assuming, 

arguendo, that Appellant was using drugs shortly before the 

murder, and that the amounts in his system were similar to 
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those found in the system of [Wife], expert testimony by a 

Commonwealth witness established that the level of 

intoxicants/drugs in [Wife’s] system was merely “therapeutic.”

[Id. at 56-63.]

Trial Ct. Op. at 3. The court further reasoned:

As per [Clemons], Appellant has failed to meet the standard 

that “a voluntary intoxication instruction is justified only when 

there is evidence that the defendant was ‘overwhelmed or 

overpowered by alcoholic liquor [or drugs] to the point of losing 

his . . . faculties or sensibilities.’” It was not established that 

Appellant was even using drugs at the time of the murder or 

shortly before. The record contains no evidence Appellant was 

overwhelmed by drugs to the point of losing his faculties. On 

the contrary, his actions and writings after the murder indicate 

highly lucid thought. And Appellant’s actions, leading up to the 

murder, are highly suggestive of a longstanding plot to kill 

[Wife].

Finally, Appellant at trial made an issue of the fact that the 

police did not test him for drugs when he was arrested. [N.T., 

2/5/19, at 114]. However . . . Appellant waited twelve to 

sixteen hours before reporting he had killed [Wife]. When he 

finally did turn himself in, he showed no signs of impairment[.]

Id. at 9. 

At trial, Appellant sought to convince the jury that the shooting was 

accidental and therefore he should be found not guilty to the murder charge. 

Appellant testified, in stark detail, concerning the circumstances of Wife’s 

death; he recalled retrieving Wife’s “birthday present” (the gun), his 

conversation with Wife, her position on the bed, her reaction to the “gift,” 

and the details of how the firearm “accidently” discharged into the back of 

Wife’s head. N.T., 2/6/19 afternoon, at 31-34. This testimony and theory of 

the case are incompatible with a voluntary intoxication defense, which
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negates the intentional component of a first degree murder conviction. 

Appellant’s mere evidence of intoxication does not make out a diminished 

capacity defense. See Clemons, 200 A.3d at 465; Spotz, 96 A.2d at 1218. 

Crucially missing from Appellant’s trial testimony and his argument on 

appeal is evidence of impairment to such a degree that he lost all “faculty 

and sensibility” and was completely overwhelmed or overpowered by the 

alleged intoxicants. To the contrary, Appellant’s recalled detail belies any

assertion of lost faculty warranting a voluntary intoxication instruction to 

first degree murder. Appellant cannot claim both that he accidently fired the 

gun while attempting to unload it and that he was so intoxicated he lost 

control of his faculties at the time of the shooting. Thus, where Appellant’s 

testimony was presented to a jury as the finder of fact, we can hardly take 

issue with the jury’s rejection of his claimed “accidental shooting” defense as 

a credibility determination, which this Court will not disturb. See Clemons,

200 A.3d at 463.

We find no basis to conclude the trial court abused its discretion by 

denying Appellant’s request for a voluntary intoxication or diminished 

capacity jury instruction. See Clemons, 200 A.3d at 467. The trial court 

provided detailed facts supporting its ruling in its well-reasoned opinion. 

The record also reflects that police did not drug test Appellant because 

during questioning, he showed no signs of intoxication. See N.T., 2/5/19, at 

119.
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Judgment of sentence affirmed. 

Judge Pellegrini joins the memorandum.

Judge McLaughlin files a concurring memorandum statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2020