J-S18012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RYAN LYNN HORTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1572 MDA 2019

Appeal from the Judgment of Sentence Entered June 14, 2019,

in the Court of Common Pleas of Franklin County,

Criminal Division at No(s): CP-28-CR-0001174-2016.

BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED JULY 10, 2020

Ryan Lynn Horton appeals from the judgment of sentence imposed 

following his conviction of murder of the first degree1 and related offenses. 

After careful review, we affirm.

Horton and his two co-conspirators were involved in a highway robbery

in which the victim, Edward Gilhart, was shot multiple times, causing his 

death. The Commonwealth charged Horton with the umbrella offense of 

criminal homicide, along with other related charges. At trial, the 

Commonwealth presented witnesses who testified that Horton masterminded 

the robbery and shot Gilhart. After the defense rested, Horton requested that 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A.§ 2502(a).
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the court instruct the jury on third-degree murder. The Commonwealth 

objected on the basis that the evidence presented at trial supported only first 

or second-degree murder, and did not rationally support an instruction for 

third-degree murder. The trial court took the matter under advisement, but 

ultimately denied Horton’s request.

On June 7, 2019, a jury convicted Horton of murder of the first degree, 

robbery, and related conspiracy and firearm offenses. On June 14, 2019, the 

trial court sentenced Horton to an aggregate prison term of life plus twentyfive to fifty years. Horton filed a timely post-sentence motion which the trial 

court denied. This timely appeal followed.

Horton raises one issue for our review: “Whether the trial court erred in 

failing to charge the jury on third-degree murder?” Horton’s Brief at 5 

(unnecessary capitalization omitted).

“Our standard of review when considering the denial of jury instructions 

is one of deference -- an appellate court will reverse a court’s decision only 

when it abused its discretion or committed an error of law.” Commonwealth 

v. DeMarco, 809 A.2d 256, 260-61 (Pa. 2002).

In reviewing a challenge to the trial court’s refusal to give a 

specific jury instruction, it is the function of this [C]ourt to 

determine whether the record supports the trial court’s decision.

In examining the propriety of the instructions a trial court presents 

to a jury, our scope of review is to determine whether the trial 

court committed a clear abuse of discretion or an error of law 

which controlled the outcome of the case. A jury charge will be 

deemed erroneous only if the charge as a whole is inadequate, not 

clear or has a tendency to mislead or confuse, rather than clarify, 

a material issue. A charge is considered adequate unless the jury 
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was palpably misled by what the trial judge said or there is an 

omission which is tantamount to fundamental error.

Consequently, the trial court has wide discretion in fashioning jury 

instructions. The trial court is not required to give every charge 

that is requested by the parties and its refusal to give a requested 

charge does not require reversal unless the appellant was 

prejudiced by that refusal.

Commonwealth v. Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006) 

(quotation marks omitted).

Defendants are generally entitled to instructions that they have 

requested and that are supported by the evidence. Commonwealth v.

Hairston, 84 A.3d 657, 668 (Pa. 2014). However, “[i]nstructions regarding 

matters which are not before the court or which are not supported by the 

evidence serve no purpose other than to confuse the jury.” Commonwealth 

v. Patton, 936 A.2d 1170, 1176 (Pa. Super. 2007). Thus, “[a] trial court 

shall only instruct on an offense where the offense has been made an issue in 

the case and where the trial evidence reasonably would support such a 

verdict.” Commonwealth v. Browdie, 671 A.2d 668, 673-74 (Pa. 1996). 

The reason for this rule is that instructing the jury on legal principles that 

cannot rationally be applied to the facts presented at trial may confuse them 

and place obstacles in the path of a just verdict. See Hairston, 84 A.3d at

668. 

The Pennsylvania Crimes Code defines third-degree murder as any 

killing with malice that is not first or second-degree murder. See 18 Pa.C.S.A. 
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§ 2502(c); see also Commonwealth v. Baskerville, 681 A.2d 195, 199-

200 (Pa. Super. 1996). 

Third degree murder occurs when a person commits a killing which 

is neither intentional nor committed during the perpetration of a 

felony, but contains the requisite malice. Malice is not merely illwill but, rather, wickedness of disposition, hardness of heart, 

recklessness of consequences, and a mind regardless of social 

duty. Malice may be inferred from the use of a deadly weapon on 

a vital part of the victim's body. Further, malice may be inferred 

after considering the totality of the circumstances.

Commonwealth v. Truong, 36 A.3d 592, 597-98 (Pa. Super. 2012) 

(quotations, quotation marks, citations omitted).

Horton contends that the trial court erred in denying his request for a 

jury instruction on third-degree murder. According to Horton, “it was 

apparent from the evidence at trial that the jury could infer the malice present 

for [first-]degree murder or third-degree murder.” Horton’s Brief at 10. 

Horton argues that, because he was accused of shooting the victim at close 

range in the head with a firearm, “the malice requirement to convict of first[-

]degree or third[-]degree could be found.” Id. Horton claims that “the 

testimony presented at trial in this matter is capable of supporting a verdict 

of guilty as to murder of the third degree.” Id. at 13. He asserts that “[j]urors 

could reasonably conclude that [Horton], while possessed of malice, did not 

have the specific intent to kill.” Id. On this basis, Horton maintains that it

was a jury question as to whether he acted with the specific intent to kill or 

with an intent to cause serious bodily injury that resulted in the death of the 

victim. Id. at 13-14. 
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The trial court considered Horton’s issue and concluded that it lacked 

merit. It reasoned as follows:

[Horton’s] entire defense of the case was that he was 

framed by his co-defendants, i.e., he did not kill the victim and/or 

did not participate in the robbery. There was no evidence before 

the jury upon which they could conclude that [Horton] killed the 

victim, but did not do so with the specific intent to kill or in the 

perpetration of the robbery. The [trial] court ruled that, on the 

evidence presented, the only rational options for the jury were: 1) 

[Horton] killed the victim and was guilty of murder of the first 

degree; 2) [Horton] either did or did not kill the victim but was 

guilty of murder of the second degree for participating in the 

predicate robbery; or 3) [Horton] did not kill the victim and did 

not participate in the robbery, i.e., [Horton] was not guilty of any 

degree of homicide.

* * *

In this case, there was no evidence presented upon which 

the jury could conclude [Horton] committed the killing, but not in 

the course of committing the robbery. Therefore, if the jury found 

[Horton] killed the victim, it was at a minimum murder of the 

second degree. No alternative theory or evidence was presented 

to the jury during the course of the trial. . . . [E]ither [Horton] 

participated in the robbery and was therefore guilty of murder of 

the second degree, or he did not participate in the robbery and 

was therefore not guilty of any degree of homicide. Instructing 

the jury on the elements of murder of the third degree would 

require them to consider a crime upon which no evidence was 

presented. The defense in this case focused exclusively on 

challenging the credibility of the Commonwealth’s witnesses, in 

particular the cooperating co-defendants; their testimony 

implicated [Horton] as the mastermind of the robbery and the 

perpetrator of the resulting murder. It is unclear to the [trial] 

court whether [Horton] was attempting to cast doubt upon 

whether he was the actual shooter, or whether he was involved in 

the robbery at all. For this analysis that distinction is irrelevant; 

either way, if unsuccessful [Horton] was guilty of at least murder 

of the second degree. If successful, [Horton] would not [be] guilty 

of any degree of homicide.

Trial Court Opinion, 8/22/19, at 2, 3, 5 (unnecessary capitalization omitted).
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We discern no abuse of discretion or error of law by the trial court in 

denying Horton’s request for a jury instruction on third-degree murder. In 

Commonwealth v. Ort, 581 A.2d 230 (Pa. Super. 1990), this Court 

addressed a similar claim in the context of a Post Conviction Relief Act 

(“PCRA”) challenge to the effectiveness of trial counsel for not requesting a 

jury instruction on third-degree murder. In Ort, the defendant was convicted 

of second-degree murder for an arson-related death. Id. at 233. The PCRA 

court denied relief on the defendant’s ineffectiveness claim. Id. This Court 

found no error, since there was insufficient evidence to support an instruction 

for third-degree murder. Id. In doing so, this Court reasoned:

[The defendant’s] defense in this case was that he did not 

set the fire which caused the homicide. There was no

evidence of third-degree murder: either [the defendant] set

the fire, and therefore was guilty of second degree murder, 

or he did not set the fire and was not guilty of any homicide. 

Id. 

Here, Horton’s entire theory of his case was that he was being set up by 

his two co-defendants and he didn’t participate in the robbery or the killing. 

He did not argue, nor did he present evidence at trial, that he shot Gilhart but 

only intended to cause serious bodily injury, and not death. See Browdie, 

671 A.2d at 673-74 (holding that an instruction is warranted where the offense 

was made an issue in the case and where the trial evidence reasonably would 

support such a verdict). Thus, the argument Horton now makes on appeal is 

not consistent with his defense theory or supported by the evidence he 
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presented at trial. See Commonwealth v. Taylor, 876 A.2d 916, 925 (Pa. 

2005) (holding that “[i]t is settled that a trial court should not instruct the jury 

on legal principles which have no application to the facts presented at trial. 

Rather, there must be some relationship between the evidence presented and 

the law upon which an instruction is requested.”). 

In sum, the evidence presented at trial supported a finding that either 

Horton intentionally killed Gilhart and was guilty of first-degree murder, or he 

did or did not shoot Gilhart but participated in the felony offense of robbery 

and was therefore guilty of second-degree murder, or he didn’t participate in 

the killing or the robbery and was not guilty of any homicide. Ort at 233. 

Accordingly, an instruction on third-degree murder was not appropriate, and 

the trial court did not err or abuse its discretion in denying Horton’s request. 

Consequently, Horton’s issue warrants no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/10/2020