J-A03005-22

2022 PA Super 47

COMMONWEALTH OF PENNSYLVANIA

v.

VYANTE ANTON GREEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 372 EDA 2021

Appeal from the Judgment of Sentence Entered August 26, 2020

In the Court of Common Pleas of Lehigh County 

Criminal Division at No: CP-39-CR-0005511-2018

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

OPINION BY STABILE, J.: FILED MARCH 16, 2022

Appellant, Vyante Green, appeals from the judgment of sentence 

imposed on August 26, 2020 in the Court of Common Pleas of Lehigh County 

following his conviction of, inter alia, first-degree murder (Kenyatta Eutsey), 

attempted criminal homicide (Dimitri Joseph), and aggravated assault (Dimitri 

Joseph),1 all stemming from events that occurred shortly after midnight on 

January 1, 2018 at a New Year’s Eve party. Appellant contends the trial court 

erred when it refused to instruct the jury on self-defense and on voluntary 

manslaughter. Because we conclude the trial court erred when it denied the 

voluntary manslaughter (“imperfect self-defense”) instruction, we vacate 

Appellant’s judgment of sentence and remand for a new trial. 

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1 18 Pa.C.S.A. §§ 2502(a), 901(a), and 2702(a)(1), respectively. 
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The trial court provided a thorough summary of evidence presented at 

Appellant’s trial, complete with references to and excerpts from the notes of 

testimony. See Trial Court Opinion, 3/26/21, at 2-9. Briefly, Appellant and 

his victims, Kenyatta Eutsey (“Eutsey”) and Dimitri Joseph (“Joseph”), were 

among the 75 to 100 people who attended a New Year’s Eve party at an Airbnb 

property in Allentown. Appellant had no prior contact with Eutsey or Joseph, 

who were cousins. All three had been drinking for some time when Eutsey 

decided he wanted to take someone’s phone. He walked up to Appellant, who 

had a bottle of Hennessey (cognac) in one hand and his phone in the other. 

Eutsey, who was much larger than Appellant, “snatched” the phone from 

Appellant and began going through it. When Appellant demanded that Eutsey 

return the phone, Eutsey began making disparaging remarks about Appellant 

and said he would not return the phone. In response, Appellant pulled a .32 

caliber revolver from his right pocket and demanded his phone. When Eutsey 

refused and tried to “fake swing or tr[ied] to swing” at Appellant, Appellant 

fired the revolver. Notes of Testimony (“N.T.”), Volume III, at 127, 164-65. 

As Eutsey was falling to the floor, Appellant fired a second shot. 

Appellant then noticed Joseph heading in his direction. He saw Joseph’s 

hand near the waistband of his pants and, rather than “wait to get shot[,] I 

turned around and started firing at the second individual.” Id. at 129. 

Eutsey died from his wounds. Joseph was severely injured. Appellant 

fled the scene and made his way to a friend’s home and then to an after-hours 
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establishment. The following morning, he discarded his clothes and the gun. 

A few days later, he fled the state to New York where he remained for a week 

or two. He was arrested on May 23, 2018. 

Following Appellant’s February 2020 jury trial, at which he testified, 

Appellant was found guilty as noted above. A pre-sentence investigation 

report was ordered and Appellant proceeded to a sentencing hearing on 

August 26, 2020. The trial court imposed a mandatory sentence of life in 

prison on the first-degree murder conviction and also sentenced Appellant in 

the standard range to a consecutive term of 20 to 40 years in prison for 

attempted homicide.

Post-sentence motions were denied on December 1, 2020 after a 

hearing. This timely appeal followed. Both Appellant and the trial court 

complied with Pa.R.A.P. 1925. 

On appeal, Appellant asks us to consider three issues, which we have 

reordered for ease of disposition as follows:

1. Whether Appellant’s [issues relating to jury instructions] are 

preserved for purposes of appellate review despite defense 

counsel’s failure to object at the end of the charge?

2. Whether the trial court erred in making its own credibility 

determinations and denying Appellant’s request for a selfdefense instruction and precluding trial counsel from arguing 

self-defense where [Appellant] explicitly testified that he acted 

to defend himself from two men who robbed him of his phone, 

threatened him, tried to punch him, and were potentially 

armed?

3. Whether the trial court erred in making its own credibility 

determinations and denying Appellant’s request for a voluntary 
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manslaughter instruction and precluding trial counsel from 

arguing imperfect self-defense where [Appellant] explicitly 

testified that he acted to defend himself from two strangers 

who robbed him of his phone, threatened him, tried to punch 

him, and appeared to be armed? 

Appellant’s Brief at vi.

In his first issue, Appellant contends he preserved his jury instruction 

claims despite counsel’s failure to object on the record at the end of the trial 

court’s charge to the jury. The trial court’s Rule 1925(a) opinion is silent as 

to this matter, suggesting that the trial court recognized the issue was 

preserved based on statements it made on the record during charging 

conferences on two consecutive days. The Commonwealth, on the other hand, 

asserts the claims are waived because counsel did not renew his request for 

jury instructions or object after the trial court concluded its charge. 

Commonwealth Brief at 12-14 (citing, inter alia, Commonwealth v. 

Pressley, 887 A.2d 220 (Pa. 2005)).

In Pressley, defense counsel submitted two proposed points for charge 

that the trial court rejected on the record prior to closing arguments. The 

first, a missing evidence charge, was rejected because the documents in 

question were provided to the defense during discovery. Id. at 222. The 

second, a simple assault charge, was rejected because the defendant had not 

been charged with simple assault. Id. Defense counsel neither took an 

exception nor lodged an objection at the time of the rulings or following the 
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charge. Id. at 225. In other words, there is no indication that counsel did 

anything more than merely submit proposed points that the trial court denied. 

The Court announced:

We hold that under Criminal Procedural Rules 603 and 647(B), 

the mere submission and subsequent denial of proposed points 

for charge that are inconsistent with or omitted from the 

instructions actually given will not suffice to preserve an issue, 

absent a specific objection or exception to the charge or the 

trial court’s ruling respecting the points.

Id. 

We acknowledge that Appellant’s counsel did not object to the charge 

or request any supplemental instructions when asked by the trial court at the 

conclusion of its charge to the jury. However, counsel did not merely submit 

proposed points for charge that were denied by the trial court, as was the case 

in Pressley. Rather, on two separate days, counsel argued for self-defense 

and voluntary manslaughter charges. The record clearly reflects “the trial 

court’s ruling respecting the points,” id. at 225, when it rejected counsel’s 

request for those instructions and assured counsel on both days that the 

issues were preserved for appeal. See N.T, Vol. III, at 196; Vol. IV at 18. 

Under the circumstances, while renewing his objections to the twice-rejected 

points for charge at the end of the jury charge would have eliminated the need 

for this Court to address the claim of waiver, we do not find that preserving 

his objections on the record during the charging conferences, rather than at 

the end of the jury charge, where the trial court expressly informs counsel his 
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objections were preserved, runs afoul of Pressley or Rule 647(B).2 Therefore, 

we decline to find Appellant’s issues waived. 

With regard to Appellant’s challenges to the denial of jury instructions, 

we initially note:

Our standard of review in regard to a trial court’s decisions on jury 

instructions is well-settled: “[O]ur 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. 

Galvin, 603 Pa. 625, 651, 985 A.2d 783, [798-99] (2009). 

Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018), 

appeal denied, 217 A.3d 180 (Pa. 2019). Further, “[t]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. Sandusky, 77 A.3d 663, 

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2

It appears the Supreme Court has recognized that a jury instruction issue 

can be preserved not only at the conclusion of a jury charge but also during a 

charging conference. In Commonwealth v. Sanchez, 82 A.3d 943 (Pa. 

2013), decided eight years after Pressley, the appellant raised a jury 

instruction issue. The Commonwealth argued the issue was waived “because 

the record does not indicate that any request for a voluntary manslaughter 

instruction was made, or that a specific and timely objection was made to the 

court’s denial of such instruction.” Sanchez, 82 A.3d at 978. The Court noted 

that the “Commonwealth’s suggestion of waiver with respect to this claim of 

error is clouded by the fact that the charging conference between the court 

and counsel was not transcribed.” Id. However, the trial court disposed of 

the jury instruction issue in its supplemental Rule 1925(a) opinion. The 

Supreme Court interpreted the trial court’s disposition of the issue as evidence 

“that the issue had been properly preserved during the conference.” 

Sanchez, 82 A.3d at 978-79. See also Commonwealth v. Sandusky, 

77 A.3d 663 (Pa. Super. 2013). 
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667 (Pa. Super. 2013) (quoting Commonwealth v. Thomas, 904 A.2d 964, 

970 (Pa. Super. 2006) (citation omitted)). 

In the first of his two claims relating to jury instructions, Appellant 

contends the trial court erred when it refused to instruct the jury on selfdefense. As this Court recently reiterated:

Self-defense is a complete defense to a homicide charge if 1) the 

defendant reasonably believed that he was in imminent danger of 

death or serious bodily injury and that it was necessary to use 

deadly [force] to prevent such harm; 2) the defendant did not 

provoke the threat that resulted in the slaying; and 3) the 

defendant did not violate a duty to retreat. 18 Pa.C.S. § 

505(b)(2); Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 

1108, 1124 (2012); Commonwealth v. Mouzon, 617 Pa. 527, 

53 A.3d 738, 740 (2012); [Commonwealth v. Knox, 219 A.3d 

186, 196 (Pa. Super. 2019)]. Where the defendant has introduced 

evidence of self-defense, the burden is on the Commonwealth to 

disprove the self-defense claim beyond a reasonable doubt by 

proving that at least one of those three elements is absent. 

Sepulveda, 55 A.3d at 1124; Knox, 219 A.3d at 196; 

Patterson, 180 A.3d [1217, 1231 (Pa. Super. 2018)].

Commonwealth v. Jones, ---A.3d---, ---, 2021 WL 5964729, at *4 (Pa. 

Super. December 16, 2021). 

As the Commonwealth correctly recognizes, “Before the issue of selfdefense may be submitted to a jury for consideration, a valid claim of selfdefense must be made out as a matter of law, and this determination must 

be made by the trial judge.” Commonwealth Brief at 15 (quoting 

Commonwealth v. Hansley, 24 A.3d 410, 420 (Pa. Super. 2011)). In 

Hansley, this Court explained that a valid claim of self defense

may consist of evidence from whatever source. Such evidence 

may be adduced by the defendant as part of his case, or 
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conceivably, may be found in the Commonwealth’s own case in 

chief or be elicited through cross-examination. However, such 

evidence from whatever source must speak to three specific 

elements for a claim of self-defense to be placed in issue for a 

jury’s consideration.

Thus, as provided by statute and as interpreted through our case 

law, to establish the defense of self-defense it must be shown 

that[:] a) the slayer was free from fault in provoking or continuing 

the difficulty which resulted in the slaying; b) that the slayer must 

have reasonably believed that he was in imminent danger of death 

or great bodily harm, and that there was a necessity to use 

such force in order to save himself therefrom; and c) the 

slayer did not violate any duty to retreat or to avoid the danger.

If there is any evidence from whatever source that will support 

these three elements 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.

Id. at 420-21 (quoting Commonwealth v. Mayfield, 585 A.2d 1069, 1070-

71 (Pa. Super. 1991) (en banc) (cleaned up) (emphasis in original)).

The trial court refused to instruct the jury on self-defense.3 The court 

recognized that a claim of self-defense requires that the evidence establish 

three elements, specifically, that a defendant

(a) Reasonably believed that he was in imminent danger of 

death or serious bodily injury, and that it was necessary to use 

deadly force against the victim to prevent such harm; (b) was free 

from fault in provoking the difficulty which culminated in the 

slaying; and (c) did not violate any duty to retreat.

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3 The trial court uses the term “self-defense” as well as the term “justification.” 

We note that these are not two different defenses. Justification is the term 

employed for self-defense in the Crimes Code. Commonwealth v. Mouzon, 

53 A.3d 738, 740 (Pa. 2012). We shall refer to the defense as “self-defense.” 
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Trial Court Opinion, 3/26/21, at 11 (citing Sanchez, 82 A.3d at 980) (in turn 

citing Sepulveda, 55 A.3d at 1124) (emphasis in original). As indicated 

above, if there is evidence supporting the three elements, “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.” Hansley, 24 A.3d at 421.4 

Here, Appellant claimed that when Eutsey snatched the phone from his 

hand, Appellant told Eutsey to give the phone back. N.T., Vol. III, at 120-21. 

In response, Eutsey began making disparaging remarks and asked Appellant 

what he was going to do about it. Id. Appellant testified that Eutsey glanced 

across the room. Appellant followed Eutsey’s glance and saw Joseph who 

started walking with “his hand somewhere in his waistband area.” Id. at 122. 

Joseph “stopped where he was at. So then that’s when [Eutsey] came back 

to me and started saying different things . . . like, ‘you still beat, like, you 

ain’t going to get your phone back.’ And at the time, that’s when I displayed 

my firearm.” Id. at 123. He pointed the gun toward Eutsey and “[t]hat’s 

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4 Regarding the second and third elements necessary to warrant a self-defense 

charge, there was no suggestion that Appellant was at fault in provoking the 

difficulty (second element). See N.T., IV, at 6 (unnumbered) (Counsel: “[With 

r]espect to being free from fault, the testimony in the Commonwealth’s . . ..” 

The court: “Let’s push that one aside, because I don’t think that really is what 

defeats your request here.”) Further, although there was testimony 

suggesting otherwise, Appellant testified that he was in a corner and unable 

to retreat (third element). See N.T., Vol. III, at 126, 129. 
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when I told him, all right, now give me my phone to try to, like, scare him to 

get my phone back.” Id. at 124. 

According to Appellant, Eutsey asked Appellant, “Basically, what the 

fuck you going to do with that, pussy.” Id. Eutsey then looked back in the 

direction of Joseph and Appellant “guess[ed Joseph] could see that I pulled 

out a firearm already, because he was, like, hesitant of what he wanted to do 

and how he was going to go about it.” Id. at 125. Joseph’s “hands were still 

down. So in my mind, I’m just trying to figure out what’s going on. And by 

the time I went to go look back at them, I just seen what [] looked like 

[Eutsey] trying to, like, swing on me[.]” Id. Appellant explained that Eutsey’s 

“body went into a twisted formation like he was going to try to, like, sucker 

punch me basically.” Id. at 126. “Once he tried to fake swing or try to swing, 

that’s when I ended up weaving when the swing came, and that’s when I 

ended up firing the first shot.” Id. at 127. “When the swing came, I just 

leaned back. The firearm was still pointed at the individual. It was just a 

quick reaction, and it just discharged.” Id. at 128.5 Appellant said he then 

“shot again, too.” Id. At that point, he saw Joseph heading in his direction. 

Joseph’s hand “was covered up” so Appellant “didn’t know if he was trying to 

pull a firearm out or not. At the time, I wasn’t trying to wait to get shot. I 

turned around and started firing at [Joseph].” Id. at 128-29. 

____________________________________________

5 Although Appellant stated the firearm “just discharged,” he acknowledged 

he pulled the trigger. Id. 
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The trial court determined that Appellant used deadly force

where, under any interpretation of the circumstances, the 

appellant only faced non-deadly force. When asked why he pulled 

the trigger, his response was that he “perceived” threats. He saw 

no gun, he eluded any attempt by Mr. Eutsey to strike him, and 

made it clear that Mr. Eutsey died because he would not return 

appellant’s cell phone. The appellant used greater force than was 

necessary to protect himself from death or serious bodily injury. 

He used “unreasonable force, rendering the claim of self-defense 

unavailable.”

Trial Court Opinion, 3/26/21, at 13 (citing Commonwealth v. Truong, 36 

A.3d 592, 599 (Pa. Super. 2012)). Moreover, Appellant “did not act out of an 

honest, bona fide belief that he was in imminent danger of death or serious 

bodily injury. Furthermore, [A]ppellant’s belief that he needed to defend 

himself with deadly force when faced with an unarmed man was unreasonable 

in light of the facts as they appeared to him.” Id. at 13 (citing 

Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014)). 

“[A]ppellant shot and killed Mr. Eutsey and seriously wounded Mr. Joseph, not 

because he reasonably believed he was in danger of death or serious bodily 

injury, but because Mr. Eutsey would not return his cell phone.” Id. at 14. 

The trial court concluded the evidence did not establish that Appellant 

reasonably believed he was in imminent danger of death or serious bodily 

injury, one of the three elements required to establish self-defense.6 

____________________________________________

6 As our Supreme Court explained in Commonwealth v. Mouzon, 53 A.3d 

738 (Pa. 2012):

(Footnote Continued Next Page)
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Cognizant that the trial judge is to determine whether a valid claim of selfdefense has been made out as a matter of law, see Hansley, 24 A.3d at 420, 

and mindful that our standard of review of a trial court’s denial of a jury 

instruction is one of deference, we find no error or abuse of discretion in the 

trial court’s refusal to deliver a self-defense instruction. Appellant is not 

entitled to relief on his second issue.

In his third issue, Appellant argues the trial court erred when it refused 

to give the voluntary manslaughter or “imperfect self-defense” instruction.7 

Under 18 Pa.C.S.A. § 2503(b), voluntary manslaughter is defined as:

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The requirement of a reasonable belief encompasses two aspects, 

one subjective and one objective. First, the defendant “must have 

acted out of an honest, bona fide belief that he was in imminent 

danger,” which involves consideration of the defendant’s 

subjective state of mind. Second, the defendant’s belief that he 

needed to defend himself with deadly force, if it existed, must be 

reasonable in light of the facts as they appeared to the defendant, 

a consideration that involves an objective analysis. 

Id. at 752 (citing Commonwealth v. Light, 326 A.2d 288 (Pa. 1974)).

7 Appellant largely relies on Commonwealth v. Monroe, 322 A.2d 100 (Pa. 

1974), in support of his assertion of trial court error for failing to deliver a 

voluntary manslaughter charge. See Appellant’s Brief at 11-13. During the 

charging conference, the trial court noted that when Monroe was decided, 

trial courts were required to provide a voluntary manslaughter charge. See 

N.T., Vol. IV, at 17. Our Supreme Court “has repeatedly held since 1983 that 

a murder defendant is entitled to a jury instruction on the lesser offense of 

voluntary manslaughter only where there is sufficient evidence to support 

such a verdict.” Commonwealth v. Cook, 952 A.2d 594, 637 (Pa. 2008)

(citing Commonwealth v. Ragan, 743 A.2d 390, 396 (Pa.

1999) (citing, inter alia, Commonwealth v. Carter, 466 A.2d 1328, 1322-

33 (Pa. 1983) (“‘unreasonable belief’ manslaughter charge shall be given 

(Footnote Continued Next Page)
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(b) Unreasonable belief killing justifiable.—A person who 

intentionally or knowingly kills an individual commits voluntary 

manslaughter if at the time of the killing he believes the 

circumstances to be such that, if they existed, would justify the 

killing under Chapter 5 of this title, but his belief is unreasonable.

18 Pa.C.S.A. § 2503(b). In Sanchez, our Supreme Court reiterated that

“unreasonable belief voluntary manslaughter,” sometimes loosely 

referred to as “imperfect self-defense,” Commonwealth v. 

Tilley, 595 A.2d 575, 582 (Pa. 1991) (citing 18 Pa.C.S.

§ 2503(b)), will only justify a voluntary manslaughter instruction 

in limited circumstances: where a defendant held “an 

unreasonable rather than a reasonable belief that deadly force 

was required to save his or her life,” and “all other principles of 

justification under 18 Pa.C.S. § 505 have been met.” Id. 

Generally, the use of deadly force is not justifiable “unless the 

actor believes that such force is necessary to protect himself 

against death, serious bodily injury, kidnapping or sexual 

intercourse compelled by force or threat.” 18 Pa.C.S.

§ 505(b)(2). Although a defendant has no burden to prove a claim 

of self-defense before such a defense is properly in issue, “there 

must be some evidence, from whatever source, to justify such a 

finding.” Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 n.

13 (Pa. 2012). 

Sanchez, 82 A.3d at 980 (cleaned up).8 In Light, our Supreme Court 

reiterated:

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only when requested, where the offense has been made an issue in the 

case, and the trial evidence reasonably would support such a verdict.”). 

Therefore, even though defendants no longer have an unconditional right to 

the unreasonable belief voluntary manslaughter charge post-Carter, it 

remains true that a defendant is entitled to the instruction when requested, if 

there is sufficient evidence to support the verdict. 

8 We note that a voluntary manslaughter jury charge is not required if a 

defendant denies having committed the killing. Id. at 98 (citing 

Commonwealth v. White, 275 A.2d 75, 77 (1971)). However, here 

(Footnote Continued Next Page)
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The dividing line between self-defense and this character of 

manslaughter (voluntary, brought about through the influence of 

a passion of fear) seems to be the existence, as the moving force, 

of a reasonably founded belief of either imminent peril to life or 

great bodily harm, as distinguished from the influence of an 

uncontrollable fear or terror, conceivable as existing but not 

reasonably justified by the circumstances. 

 

Light, 326 A.2d at 294 (quoting Commonwealth v. Principatti, 104 A. 53, 

57 (Pa. 1918) (additional citation omitted)). Further, 

[i]f the circumstances are both adequate to raise and sufficient to 

justify a belief in the necessity to take life in order to save one’s 

self from such danger, where the belief exists and is acted upon, 

the homicide is excusable upon the theory of self-defense; . . . 

while, if the act is committed under the influence of an 

uncontrollable fear of death or great bodily harm, caused by the 

circumstances, but without the presence of all the ingredients 

necessary to excuse the act on the ground of self-defense, the 

killing is manslaughter.

Principatti, 104 A. at 57 (citation omitted).

As reflected above, in Jones, this Court discussed the three elements 

of self-defense and explained the Commonwealth’s burden of disproving at 

least one of those elements. In terms of Appellant’s requested self-defense 

claim, the trial court determined that the element the Commonwealth 

disproved was that Appellant “reasonably” believed he was in imminent 

danger of death or serious bodily injury so as to necessitate the use of deadly 

____________________________________________

Appellant admitted that he pulled the trigger and shot Eutsey twice. N.T., Vol. 

III, at 128. He also admitted shooting Joseph. Id. at 128-29. 
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force. However, the Court in Jones also addressed imperfect self-defense, 

noting:

If the Commonwealth proves that the defendant’s belief that 

deadly force was necessary was unreasonable but does not 

disprove that that the defendant genuinely believed that he was 

in imminent danger that required deadly force and does not 

disprove either of the other elements of self-defense, the 

defendant may be found guilty only of voluntary manslaughter 

under the defense of imperfect self-defense. 18 Pa.C.S.

§ 2503(b); Sepulveda, 55 A.3d at 1124; Commonwealth v.

Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc).

The finder of fact is not required to believe the defendant’s 

testimony that he thought that he was in imminent danger and 

acted in self-defense. Commonwealth v. Houser, 610 Pa. 264, 

18 A.3d 1128, 1135 (2011); Commonwealth v. Carbone, 524 

Pa. 551, 574 A.2d 584, 589 (1990); Commonwealth v. Chine, 

40 A.3d 1239, 1243 (Pa. Super. 2012). Disbelief of the 

defendant’s testimony, however, is not sufficient to satisfy the 

Commonwealth’s burden to disprove self-defense absent some 

evidence negating self-defense. Commonwealth v. Torres, 564 

Pa. 219, 766 A.2d 342, 345 (2001); Commonwealth v. Ward, 

188 A.3d 1301, 1304 (Pa. Super. 2018).

Jones, ---A.3d ----, ---, 2021 WL 5964729, at *4.

Here, Appellant testified that Eutsey—who at 6’ 3-1/2” and 234 pounds, 

see N.T., Vol. III, at 167, was larger than Appellant, id. at 120—tried to swing 

at Appellant, who was scared. Id. at 127, 131. In response, Appellant fired 

twice. Both shots were estimated to have been from a distance of less than 

one foot away, and perhaps less than ten inches away. Id. at 166. Appellant 

then saw Joseph coming toward him and “felt he was trying to pull something 

from his waistband.” Id. at 174. Appellant shot at Joseph, rather than “wait 
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to get shot,” id. at 129, in response to what he perceived as threats. Id. at 

174. In other words, Appellant testified as to his subjective beliefs. 

As the trial court correctly recognized, “Imperfect self-defense has two 

components: the defendant’s subjectively held belief of danger posed by the 

victim and the objective measurement of that belief. Trial Court Opinion, 

3/26/21, at 12. Further, “[a] viable claim of imperfect self-defense cannot be 

based solely on the subjective state of mind of the defendant. ‘It is not the 

appellant who determines what is a reasonable belief. There must be some 

standard by which it is measured.’” Id. (quoting Sepulveda, 55 A.3d at 

1126) (emphasis in original). 

Our review of the evidence does not reflect that the Commonwealth 

disproved Appellant genuinely believed he was in imminent danger of being 

killed or seriously injured by Eutsey or by Joseph. If anything, through its 

cross-examination of Appellant, the Commonwealth bolstered Appellant’s 

contention that he “actually, but unreasonably believed deadly force was 

necessary.” Truong, 36 A.3d at 599. Nevertheless, the jury was not 

instructed on voluntary manslaughter or imperfect self-defense and, 

therefore, could not consider whether Appellant’s belief was reasonable or 

unreasonable. We conclude that the jury, as factfinder—not the trial court—

should have determined whether Appellant unreasonably believed that deadly 

force was necessary. We agree with Appellant that the trial court usurped the 

jury’s role as factfinder by making its own credibility determinations when it 
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denied Appellant’s request for a voluntary manslaughter instruction and 

precluded counsel from arguing imperfect self-defense. 

Based on the evidence presented at trial, an “unreasonable belief” 

voluntary manslaughter jury instruction was appropriate and the trial court’s 

refusal to provide that instruction prejudiced Appellant. Therefore, the refusal 

to instruct on voluntary manslaughter constitutes reversible error. 

Sandusky, 77 A.3d at 667.

Judgment of sentence vacated. Case remanded for a new trial. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2022