J-S20018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT A. MAIER,

Appellant No. 970 WDA 2014

Appeal from the Judgment of Sentence Entered May 2, 2013

In the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0000195-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED MAY 20, 2015

Appellant, Robert A. Maier, appeals nunc pro tunc from the judgment 

of sentence entered on May 2, 2013, following his convictions of first-degree 

murder and possessing a firearm with an obliterated serial number. We 

affirm. 

In November of 2011, Appellant and his girlfriend, Ellen Rose (“Ellen”), 

had been in a romantic relationship for approximately twenty-three years. 

N.T., 3/22/13, at 224. The victim in this matter (“Victim”) was Ellen’s adult 

son, thirty-one-year-old Matthew Rose. Id. at 52. Victim and his wife 

Brandi Rose (“Brandi”) had two young children. Id. at 150. Victim and 

Brandi were estranged due to Victim’s substance abuse, but they were 

attempting to reconcile. Id. at 154. Appellant was upset about Victim’s 

drug use, and he also suspected that Victim told the police that Appellant 
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was selling marijuana. Id. at 237-239. On Friday, November 25, 2011, 

Brandi learned that her daughter made an allegation that Brandi’s nephew 

had touched her inappropriately. Id. at 155. Brandi’s mother contacted the 

police and Children and Youth Services (“CYS”). Id. at 156. Later that day, 

there was a family meeting at Ellen’s house about the child’s allegations. 

Id. at 157. Ellen, Appellant, Victim and Brandi, their two children, and some 

family friends were at the family meeting. Id. 

The next day, Saturday, November 26, 2011, CYS came to Ellen’s 

home and interviewed Brandi, Victim, and the child who made the complaint. 

Id. at 161. After the CYS interviews, Appellant arrived at Ellen’s house 

intoxicated at approximately 2:30 p.m. N.T., 3/22/13, at 170. Appellant, 

Brandi, and Victim convened in the kitchen. Id. Brandi and Appellant were 

talking while Victim read a newspaper. Id. at 176. Appellant began 

commenting on Brandi’s decision to reconcile with Victim, and Appellant 

shared his belief that Victim informed the police about Appellant’s marijuana 

dealing. Id. at 177-178. Victim gave no response and continued to read 

the newspaper. Id. Appellant then pulled out a handgun and pointed it at 

Victim. Id. at 178. Appellant took several steps toward Victim and fired the 

weapon at Victim. Id. at 179. The bullet struck Victim in the side, and 

Victim and Brandi fled outside the house. Id. 

Appellant followed Victim and Brandi outside, and while Victim was 

moving toward a fence, Appellant shot him in the back. Id. at 185. Despite 

having been shot twice, Victim attempted to climb the fence, and Appellant 
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fired a third shot striking Victim in the lower back causing him to fall. Id. at 

186-188. The first shot pierced Victim’s liver, and the third shot pierced the 

liver and cut a furrow through Victim’s heart. N.T., 3/25/13, at 191-194. 

Victim died as a result of the third gunshot wound. Id. Appellant was 

arrested later that day, and police recovered the murder weapon from his 

truck. N.T., 3/22/13, at 89.1

On March 27, 2013, following a jury trial, Appellant was found guilty of 

first-degree murder and possession of a firearm with an obliterated serial 

number. On May 2, 2013, Appellant was sentenced to an aggregate term of 

life in prison. Appellant filed a timely post-sentence motion on May 7, 2013, 

and Appellant was also granted permission to file a supplemental postsentence motion. On August 19, 2013, the trial court denied Appellant’s 

post-sentence motions. 

Appellant filed a notice of appeal with this Court; however, we 

dismissed the appeal on February 10, 2014, due to Appellant’s failure to file 

a brief. On April 21, 2014, Appellant filed a timely petition for collateral 

relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541-9546, seeking the reinstatement of his direct appeal rights nunc pro 

tunc. In an order filed on May 12, 2014, the PCRA court reinstated 

____________________________________________

1 The ballistics evidence matched the shell casings found at the crime scene 

to the handgun found in Appellant’s truck. N.T., 3/26/13, at 10-11.
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Appellant’s direct appeal rights, and on June 11, 2014, Appellant filed this 

timely, direct appeal nunc pro tunc.

2

Appellant presents the following issues for this Court’s consideration:

I. Was the weight of the evidence, beyond a reasonable doubt[]?

II. Should the trial court have instructed the jury on Voluntary 

Manslaughter as a lesser included offense of homicide?

Appellant’s Brief at 5.3

In his first issue, Appellant presents a challenge to the weight of the 

evidence. “When the challenge to the weight of the evidence is predicated 

on the credibility of trial testimony, our review of the trial court’s decision is 

extremely limited. Generally, unless the evidence is so unreliable and/or 

contradictory as to make any verdict based thereon pure conjecture, these 

types of claims are not cognizable on appellate review.” Commonwealth v. 

Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004) (quoting 

____________________________________________

2 The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement 

of errors complained of on appeal.

3

In his Statement of Questions Involved, Appellant raised a third issue 

baldly challenging the sufficiency of the evidence. Appellant’s Brief at 5. 

However, in the Argument portion of his brief, Appellant asserts that he 

would not pursue the sufficiency of the evidence issue on appeal. 

Appellant’s Brief at 10. Confusingly, however, Appellant has, perhaps 

unintentionally, presented a challenge to the sufficiency of the evidence 

element to his argument regarding the weight of the evidence. We will 

address this sufficiency of the evidence component in our discussion on 

Appellant’s challenge to the weight of the evidence. Additionally, we have 

re-ordered the issues for purposes of our discussion.
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Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa. Super. 1989)). “The 

weight of the evidence is a matter exclusively for the finder of fact, who is 

free to believe all, part, or none of the evidence and to determine the 

credibility of the witnesses.” Commonwealth v. Forbes, 867 A.2d 1268, 

1273-1274 (Pa. Super. 2005). “Moreover, where the trial court has ruled on 

the weight claim below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against the weight of the 

evidence.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). 

“Rather, appellate review is limited to whether the trial court palpably 

abused its discretion in ruling on the weight claim.” Id. (citing 

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. Super. 2003)) (citations 

omitted).

Here, Appellant properly raised his challenge to the weight of the 

evidence in his May 7, 2013 post-sentence motion. As noted above, the trial 

court denied Appellant’s motion in an order filed on August 19, 2013. In its 

opinion, the trial court explained its decision to deny Appellant’s challenge to 

the weight of the evidence as follows:

[The Court] presided over [Appellant’s] jury trial and observed 

all testimony and evidence presented to the jury. The 

empanelled jury found that such evidence proved [Appellant’s] 

guilt to first degree murder beyond a reasonable doubt. The 

Court does not find that the Jury’s verdict was so contrary to the 

evidence as to shock one’s sense of justice.

Trial Court Opinion, 11/15/13, at 9. We agree. As noted above, Appellant 

pointed a gun at Victim and shot him once in the side. When Victim 
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attempted to flee from the house, Appellant followed him and shot him again 

in the back. When Victim continued moving and tried to climb a fence to 

escape, Appellant shot him a third time causing Victim’s death. Appellant’s 

actions were witnessed by Brandi, Victim’s wife, as revealed through her 

testimony that was deemed credible by the jury.

After review, we conclude that the verdict is supported by evidence of 

record, and it does not in any way shock our sense of justice. Accordingly, 

the trial court did not abuse its discretion, and Appellant’s weight of the 

evidence claim fails. 

We further note that, while Appellant presented this issue as a 

challenge to the weight of the evidence, he also argues that the element of 

malice, which is necessary for a first degree murder conviction,4 was not 

established. Appellant’s Brief at 11. Such a claim is a challenge to the 

sufficiency of the evidence. 

In reviewing challenges to the sufficiency of the evidence, “our 

standard of review is de novo, however, our scope of review is limited to 

considering the evidence of record, and all reasonable inferences arising 

therefrom, viewed in the light most favorable to the Commonwealth as the 

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4 See Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014) (stating 

that to sustain a conviction for first-degree murder, the Commonwealth 

must prove the following elements beyond a reasonable doubt: (1) a human 

being was unlawfully killed; (2) the defendant was responsible for the killing; 

and (3) the defendant acted with malice and a specific intent to kill (citing 

18 Pa.C.S. § 2502(a)).
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verdict winner.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 

2015) (citation omitted). “Evidence is sufficient if it can support every 

element of the crime charged beyond a reasonable doubt.” Id. (citation 

omitted). The evidence does not need to disprove every possibility of 

innocence, and doubts as to guilt, the credibility of witnesses, and the 

weight of the evidence are left to the finder of fact. Id. (citation omitted). 

We will not disturb the verdict “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.” Id. (citation omitted). 

In a first-degree murder prosecution, both a specific intent to kill and 

malice may be inferred from the defendant’s use of a deadly weapon upon a 

vital part of the victim’s body. Commonwealth v. Ramtahal, 33 A.3d 602, 

607 (Pa. 2011). As noted above, Appellant, using a firearm, fired three 

shots at Victim’s torso severing vital organs. N.T., 3/25/13, at 191-194. 

The first shot pierced Victim’s liver, and the third shot tore through Victim’s 

heart, killing him. Id. We conclude that this evidence is sufficient to 

establish the malice element of first-degree murder. See Ramtahal, 33 

A.3d at 608 (concluding that the Commonwealth proved malice by 

establishing that the defendant pointed a loaded handgun at the victim and 

fired a bullet that pierced an artery in the victim’s pelvis causing his death).

Appellant next argues that the trial court erred when it refused to 

instruct the jury on the crime of voluntary manslaughter. Appellant’s Brief 

at 8. In reviewing claims involving jury instructions, we note as follows:
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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.... Instructions 

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) 

(quoting Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996)). “A 

voluntary manslaughter instruction is warranted only where the offense is at 

issue and the evidence would support such a verdict.” Commonwealth v. 

Johnson, 42 A.3d 1017, 1036 (Pa. 2012) (citation omitted). “To support a 

verdict for voluntary manslaughter, the evidence would have had to 

demonstrate that, at the time of the killing, Appellant acted under a sudden 

and intense passion resulting from serious provocation by the victim.” Id.

In making the objective determination as to what constitutes serious 

provocation, reliance may be placed upon the cumulative impact of a series 

of related events. Commonwealth v. Carr, 580 A.2d 1362, 1364 (Pa. 

Super. 1990) (citation omitted). 

Relevant to the heat of passion claim, we note that a defendant 

charged with murder may establish that he is guilty, not of 

murder, but rather of voluntary manslaughter, by proving that, 

at the time of the killing, he was acting under a sudden and

intense passion resulting from serious provocation by the victim. 

Emotions encompassed by the term passion include anger, rage, 

sudden resentment or terror which renders the mind incapable of 

reason. Whether the provocation by the victim was sufficient to

support a heat of passion defense is determined by an objective 

test: whether a reasonable man who was confronted with the 

provoking events would become impassioned to the extent that 

his mind was incapable of cool reflection. Significantly, we have 

clarified that both passion and provocation must be established, 
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and that if there be provocation without passion, or passion 

without a sufficient cause of provocation, or there be time to 

cool, and reason has resumed its sway, the killing will be 

murder.

Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012) (internal citations 

and quotation marks omitted).

Additionally, “[u]nder Pennsylvania law, a homicide defendant is 

entitled to a charge on involuntary or voluntary manslaughter only if the 

evidence adduced at trial would reasonably support a verdict on such a 

charge.” Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa. Super. 

1996) (citation omitted). “In other words, a trial court can give a 

manslaughter instruction only when there is evidence tending to show that 

the defendant is not guilty of the crime of murder but is guilty of the lesser 

crime of manslaughter.” Id. (citation omitted). “In determining whether 

the evidence would support a manslaughter charge, we must view the 

evidence in the light most favorable to the defendant.” Id. (citation 

omitted).

In addressing this issue, the trial court concluded:

The evidence presented at [t]rial unambiguously showed that 

[Victim] was reading a newspaper in his mother’s kitchen when 

[Appellant] shot him; [Victim] made no statements or actions to 

provoke [Appellant] at that time. Pursuant to Commonwealth v. 

Carr, the Court further considered “the cumulative impact of a 

series of related events”. 580 A.2d 1362, 1364 (Pa.Super. 

1990). [Appellant’s] testimony and Defense Counsel’s [closing] 

argument and [the] testimony elicited on cross-examination 

attempted to impugn the general character of [Victim], 

describing his alleged drug abuse, poor parenting and 

unemployment. Additionally, evidence was presented that 

[Appellant] believed [Victim] may have informed police of his 
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marijuana sales and that [Victim] fabricated the child abuse 

allegations. This Court first finds that such evidence is 

insufficient to cause a reasonable man to become impassioned to 

the extent that his mind was incapable of cool reflection. 

Compare Kim, supra.

[5] This Court further finds that insofar as 

such actions may be “provoking”, [Appellant] had ample time to 

cool, as the most recent incident, the child abuse allegations, 

came to light the day prior to the homicide. Compare Kim, supra

(in which the Superior Court found that the time needed for the 

defendant to retrieve a handgun from his vehicle was sufficient 

time to cool).

Finally, as to “passion”, [Appellant] testified that he [was] 

“upset about the child abuse allegations some”, he was not at all 

upset about [Victim’s] alleged cooperation with the police, and 

that he that he had no recollection of shooting [Victim].

Q. So, all that testimony on direct examination about what 

a piece of crap [Victim] was, that had nothing to do with 

why you pulled up at 409 Jackson Street; isn’t that right?

A. I wanted to see what was going on, CYS was supposed 

to be there, and I wanted to see what was developed from 

that.

...

Q. But you weren’t upset about it at this point because you 

had already learned about it the day before; isn’t that 

right?

A. Yeah, I would say I was still upset about it some.

Q. But there had been a time period for you to kind of 

calm down about this situation; isn’t that right?

A. Somewhat. Down at the bar it took my mind off of it.

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5 See Commonwealth v. Kim, 888 A.2d 847 (Pa. Super. 2005) (holding 

that where a defendant has time to cool off, but instead chooses to get a 

gun and return to kill the victim, there is no provocation, and an instruction 

on voluntary manslaughter is neither supported by the evidence nor 

warranted).
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Q. And you were worried that [Victim] was going to rat 

you out because you knew you were selling weed; isn’t 

that right?

A. I thought about it, wasn’t really worried about it. It was, 

$20 worth, you know.

Q. Isn’t it true that you did sell marijuana?

A. On very few occasions.

Q. And you were worried about [Victim] ratting you out for 

that; isn’t that right?

A. Not really.

Q. Not really? So you did or you didn’t tell Ellen that you 

were concerned about [t]hat?

A. I was concerned that he might, but it wasn’t nothing I 

could do about it. It was nothing.

Q. Do you remember talking to Brandi?

A. I remember talking to Brandi.

Q. And you heard Brandi testify; isn’t that right?

A. Yes.

Q. And you were short with her, but there were no loud 

voices; isn’t that right?

A. Yes.

Q. In other words, nothing happened at that point in time 

that caused you to become enraged; isn’t that right?

A. Apparently not.

Q. Do you remember pointing that gun at [Victim]?

A. No.

Q. Do you remember firing a shot into [Victim]?

A. No.

...
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Q. Do you remember standing out that side door and 

taking another shot into [Victim’s] back? Do you remember 

that?

A. No, I don’t.

Q. Do you remember [Victim] trying to save his life and go 

over that fence? Do you remember that?

A. No.

Q. Do you remember firing another shot?

A. No, ma’am.

As in Patton, supra,

[6] wherein the defendant’s testimony that 

that shooting was accidental, and not the result of passion, 

precluded an instruction for voluntary manslaughter, 

[Appellant’s] testimony that he had no recollection of the 

shooting, similarly negates any inference, via his own testimony,

that [Appellant] was acting in passion. Witnesses testified that 

[Appellant] was “angry”, “mad”, “short” and “in a bad mood” 

when he arrived at the residence but there was no evidence 

presented that [Appellant] went into a sudden and intense 

anger, rage, resentment or terror immediately prior to shooting 

[Victim]. See Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 

2012) (defining “emotions encompassed by the term ‘passion””).

Based upon the foregoing, an instruction for voluntary 

manslaughter was not warranted, as there was not legally 

adequate provocation, there was ample time for [Appellant] to 

coolly reflect upon the inadequate provocation, and there was no 

evidence that [Appellant’s] actions were under a heat of passion.

Trial Court Opinion, 11/15/13, at 12-15 (footnotes omitted).

____________________________________________

6 See Commonwealth v. Patton, 936 A.2d 1170 (Pa. Super. 2007) 

(holding that where the defendant argued that a shooting death was an 

accident, an instruction for voluntary manslaughter, which is an intentional 

killing, was not warranted).
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We agree with the trial court. The evidence revealed that while Victim 

silently read a newspaper, Appellant had a conversation with Brandi. 

Appellant then pulled out a gun and shot Victim. Appellant followed Victim 

outside and shot him two more times until the third shot severed Victim’s 

heart and he stopped moving. There was no evidence of provocation, and 

despite multiple opportunities to cease his attack and cool off, Appellant 

instead chose to follow Victim as he attempted to escape and repeatedly 

shoot him. Thus, we discern no error in the trial court refusing to give an 

instruction on the crime of voluntary manslaughter.

For the reasons set forth above, we conclude that Appellant is entitled 

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2015