J-S47009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHELTON RAY AKEE RITTER,

Appellant No. 1651 MDA 2015

Appeal from the Judgment of Sentence August 26, 2015

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0005068-2014

BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 26, 2016

Appellant, Shelton Ray Akee Ritter, appeals from the judgment of 

sentence entered on August 26, 2015, in the York County Court of Common 

Pleas. After careful review, we reverse the judgment of sentence entered on 

the charge of fleeing or attempting to elude a police officer, and we remand 

for a new trial. 

The trial court provided the following background in this matter:

On May 13, 2015, before the commencement of his first jury 

trial, the Appellant pleaded guilty to Counts 3 [possession of 

controlled substance], 4 [possession of drug paraphernalia], 5 

[driving while operating privileges were suspended or revoked], 

and 11 [driving under the influence of alcohol or controlled 

substance]. On May 14, 2015, this Court formally declared a 

mistrial due to the jury’s inability to reach a unanimous verdict 

on the remaining counts. The Commonwealth sought to try the 

Appellant again, and his second trial began on July 14, 2015. 

The next day, on July 15th, he was found guilty of Counts 1 
J-S47009-16

- 2 -

[fleeing or attempting to elude a police officer] and 6 [traffic 

control signals].[1]

During the trial, Officer Daniel Kling of the York City Police 

Department testified that on June 13, 2014, he was on duty 

when he observed a vehicle stopped at red light at Princess 

Street in the City of York. N.T. 7/14 – 7/15/2015 at 81-82. 

Officer Kling recognized the driver and identified him as the 

Appellant. Id. at 82. Through prior knowledge, Officer Kling 

knew the Appellant’s license status was suspended, so he, and 

the two other officers who were with him, proceeded to turn 

around and follow the Appellant. Id. at 82-83. The officers 

caught up to the Appellant while he was stopped at a red light 

waiting to turn left onto Broad Street. Id. at 83. While the light 

was still red Officer Kling observed the Appellant make a lefthand turn and proceed down Broad Street. He continued 

following the Appellant until he came to a stop. Id. Officer Kling 

testified at that time the Appellant’s vehicle came to a stop and 

Officer Glatfelter turned on the emergency lights and “hit the 

welp, which is like a short siren.” Id. at 83-84.

Officer Kling testified that as soon as he and the other 

officers pulled in behind the Appellant, the passenger exited the 

vehicle. N.T. 7/14 – 7/15/2015 at 85,101. Officer Kling got out 

the unmarked police car and told the passenger to get back in 

the vehicle. Id. The Appellant then drove away. Id. The 

officers jumped back in their vehicle, and began to pursue the 

Appellant. Id. at 86. Officers were able to catch up to the 

Appellant when he pulled into a parking area. Id. at 87. 

Officer Kling described the parking lot as a circle with cars 

parked on the outside and a row of cars in the center of the 

circle. Id. Officers Kling, Clymer, and Glatfelter all got out of 

their vehicle and approached the Appellant instructing him to put 

his vehicle in park. Id. at 88. According to Officer Kling, the

Appellant was looking directly at the officers while they were 

giving these verbal commands. Id. The Appellant put his 

____________________________________________

1

 To clarify, Appellant pled guilty to counts 3, 4, 5, and 11. Counts 2, 7, 8, 

9, and 10 were nol prossed. Count 6, concerning failure to stop at a traffic 

light, was a summary offense, and therefore, Appellant’s second trial 

concerned only the charge for fleeing or attempting to elude a police officer 

while driving under the influence. 
J-S47009-16

- 3 -

vehicle into reverse and began driving clockwise around the 

parking lot. Id. Officer Glatfelter moved his vehicle to obstruct 

the Appellant’s path, and Officers Kling and Clymer chased the 

Appellant on foot. Id. at 89.

Eventually, the Appellant stopped his vehicle and put it in 

park. N.T. 7/14 – 7/15/2015 at 89. Officer Kling testified that 

the Appellant would not voluntarily get out of the vehicle, so he 

forcibly removed him. Id. Officers found a bag of marijuana on 

the Appellant and a cold, half-full bottle of Budweiser Select in 

the Appellant’s vehicle. Id. at 90. Officer Kling testified that 

while he was searching the Appellant he smelled a strong odor of 

alcoholic beverage emanating from his person. Id. The 

Appellant admitted to having marijuana and drinking before he 

drove. Id.

Officers took the Appellant to central booking at which 

point he indicated he wanted medical treatment. N.T. 7/14 -

7/15/2015 at 91. While waiting with the Appellant at the 

hospital, Officer Kling testified that the Appellant repeatedly 

stated that he does not run from the police. Id. at 91.

On cross-examination, Officer Kling clarified that because 

he was in an unmarked vehicle it was not equipped with a typical 

light bar on top of the vehicle. 7/14 – 7/15/2015 at 97. He also 

indicated that while officers were following the Appellant they did 

not activate their lights and sirens. Id. at 99. Furthermore, 

Officer Kling agreed with defense counsel that this was not a 

high speed chase through the city. Id. at 102. Finally, Officer 

Kling estimated that approximately 30 to 45 seconds passed 

from the time the Appellant pulled away from the curb on Broad 

Street to the time he was placed in custody in the parking lot. 

Id. at 106.

Officer Timothy Clymer testified to essentially the same 

facts as Officer Kling. See N.T. 7/14 – 7/15/2015 at 109-118. 

Officer Clymer added that from his position he could see a white 

male passenger in the Appellant’s vehicle. Id. at 111. When the 

Appellant pulled over on Broad Street to let his passenger out, 

Officer Clymer testified that he pulled up behind the Appellant’s 

vehicle and activated the emergency lights to initiate a traffic 

stop. Id. at 112. As officers began to exit their vehicle, the 

Appellant drove away. Id. at 113. Officer Clymer added that on 

the way to the hospital the Appellant made several spontaneous 
J-S47009-16

- 4 -

statements, which included an apology for running. Id. at 116. 

The Appellant indicated that he did not see the lights, and that 

he had a couple of beers, but that he was not drunk. Id.

The parties entered into stipulation that if called to testify 

Ayako Chan-Hosokawa, forensic toxicologist, would state that 

the Appellant’s BAC was .140 %, and his blood also contained 

the inactive metabolites for marijuana. N.T. 7/14 – 7/15/2015 

at 117. 

Like Officer Clymer, Officer Clayton Glatfelter’s testimony 

was very similar to that of Officer Kling. See N.T. 7/14 –

7/15/2015 at 123-31. Officer Glatfelter testified that when the 

Appellant turned left at the red light, it was his opinion that the 

Appellant was trying to flee. Id. at 125. The parties entered 

into one final stipulation, that being that the substance found on 

the Appellant’s person did test positive for marijuana. Id. at 

130-31.

The Commonwealth rested, and the Appellant took the 

stand. N.T. 7/14 – 7/15/2015 at 136, 143. The Appellant 

testified that on June 13, 2014, he was at his house with a 

couple of friends having a few drinks. Id. at 145. His friend 

wanted to go home, so the Appellant offered to drop his friend 

off at his house. Id. With respect to the left-hand turn on to 

Broad Street, the Appellant stated that he saw the opposite light 

turning from green to yellow so he began inching forward, and 

then he went ahead and made the left turn. Id. at 146. He let 

his friend out of the car and then proceeded to the parking lot to 

turn around and go back to his house. Id. at 147. The Appellant 

said he knew his license was suspended, so he did not want to 

make a U-turn in the middle of the street. Id.

The Appellant testified that he did remember seeing a 

black SUV, but he did not know it was an unmarked police 

vehicle. N.T. 7/14 – 7/15/2015 at 151-52. The Appellant 

maintained he did not hear any sirens, and that the only time he 

knew the police were pursuing him was when he put his vehicle 

into reverse to leave the parking lot and he felt an officer pulling 

him from his vehicle. Id. at 153. The Appellant admitted that 

his decision to drink and drive was wrong; but that he was not 

feeling drunk and felt he was able to drive. Id. at 154. In fact, 

the Appellant, on re-direct, indicated that he was surprised when 

he learned what his BAC was because he “did not feel what they 
J-S47009-16

- 5 -

were telling me I should be feeling.” Id. at 172. Finally, the 

Appellant was adamant that he did not flee the police on June 

13, 2014, and that he was not trying to hide from the police that 

night. Id. at 155-56.

On cross-examination, the Appellant denied ever driving 

around in circles in the parking lot. N.T. 7/14 – 7/15/2015 at 

165-66. The Appellant indicated that if he was slurring his 

speech it was not because he was intoxicated, it was because 

the officers had slammed his head on the ground. Id. at 167. 

Finally, the Appellant maintained that he did not see officers with 

their guns drawn approaching his vehicle. Id. at 169.

On re-direct, the Appellant elaborated on why he did not 

let his friend walk home if he only lived a couple blocks away. 

N.T. 7/14 – 7/15/2015 at 171. The Appellant was candid in 

stating that his friend, being a white male, would have been a 

target in that area of the city. Id. The Appellant stated that his 

mother was home at the time, but that he did not want to bother 

her for a ride because of her poor health. Id. at 171-72.

Trial Court Opinion, 1/4/15, at 1-6 (footnote added).

After the Commonwealth rested and while the jury was out of the 

courtroom, the Commonwealth requested a jury instruction on voluntary 

intoxication.2 N.T., 7/14/15-7/15/15, at 138-139. Appellant objected, but 

the trial court overruled the objection and agreed to give the instruction.3 

Id. at 139-140. The trial court instructed the jury as follows:

____________________________________________

2

 Pennsylvania Standard Criminal Jury Instruction 8.308A.

3

 The attorney for the Commonwealth requested the voluntary intoxication 

instruction because, after speaking to the jurors following Appellant’s 

mistrial, he averred that some jurors felt Appellant “was too drunk or too 

high to understand what was going on.” Trial Court Opinion, 1/4/15, at 7 

(citing N.T., 7/14/15-7/15/15, at 138-139).
J-S47009-16

- 6 -

[Appellant] has been charged with the offense of fleeing or 

attempting to elude a police officer. To find [Appellant] guilty of 

that offense, you would have to find the following elements have 

been proven beyond a reasonable doubt: First, that [Appellant] 

was a driver of a motor vehicle; second, that [Appellant] was 

given a visual and audible signal by a police officer to bring the 

vehicle to a stop. The signal given by the police officer may 

have been by hand, voice, emergency lights, or siren.

Third, that [Appellant] failed or refused to bring the vehicle 

to a stop or fled or attempted to elude the pursuing police 

officer; fourth, that [Appellant] did so willfully, that is, he was 

aware of the officer’s signal to stop and refused to do so.

Now, as I said, if and only if you find [Appellant] guilty of 

that offense, do you go on and answer the second question, and 

that is, while fleeing, did [Appellant] do so while committing the 

crime of driving under the influence of alcohol and drugs?

And I believe you heard the agreement of the parties that 

should you find [Appellant] guilty of the first question, then the 

answer to that question as agreed to by the parties, the answer 

to the second question is yes.

So I am not going to go into a definition of what driving 

under the influence is. Of course if you find [Appellant] not 

guilty of the first question, that is it. You do not go any further. 

You indicate to the tipstaff that you have reached a verdict.

Also, with regard to the crime with which [Appellant] is 

charged, you should know that voluntary intoxication is not a 

defense to a criminal charge. A person who voluntarily 

uses intoxicants or drugs cannot become so intoxicated or 

drugged that he is legally incapable of committing a 

crime.

N.T., 7/14/15-7/15/15, at 223-224 (emphasis added).
J-S47009-16

- 7 -

Ultimately, the jury returned a verdict of guilty on the fleeing or 

attempting to elude a police officer charge. N.T., 7/14/15-7/15/15, at 228.4 

On August 26, 2015, the trial court sentenced Appellant to a term of six to 

twelve months of incarceration on the fleeing and eluding conviction.

Appellant filed a timely notice of appeal on September 22, 2015. Both 

Appellant and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Appellant presents one issue for this Court’s consideration:

1. Whether the trial court committed fundamental error by 

instructing the jury on voluntary intoxication when such 

instruction was irrelevant to Appellant’s defense and confused or 

misled the jury in its determination of guilt?

Appellant’s Brief at 4.

Our standard of review in assessing a trial court’s jury instruction is as 

follows:

When evaluating the propriety of jury instructions, this Court will

look to the instructions as a whole, and not simply isolated 

portions, to determine if the instructions were improper. We 

further note that, it is an unquestionable maxim of law in this 

Commonwealth that a trial court has broad discretion in phrasing 

its instructions, and may 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 law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014).

____________________________________________

4

 While we are reviewing only the jury instruction with respect to the traffic 

violation, we note that the trial court found Appellant guilty of the summary 

offense of failing to stop at the red light. N.T., 7/14/15-7/15/15, at 229. 
J-S47009-16

- 8 -

The Crimes Code discusses the ramifications of voluntary intoxication 

as follows: 

Intoxication or drugged condition

Neither voluntary intoxication nor voluntary drugged condition is 

a defense to a criminal charge, nor may evidence of such 

conditions be introduced to negative the element of intent of the 

offense, except that evidence of such intoxication or drugged 

condition of the defendant may be offered by the defendant 

whenever it is relevant to reduce murder from a higher degree 

to a lower degree of murder.

18 Pa.C.S. § 308. In cases of first-degree murder, our Supreme Court has 

explained: 

a jury instruction regarding diminished capacity due to voluntary 

intoxication is justified only when the record contains evidence 

that the accused was intoxicated to the point of losing his or her 

faculties or sensibilities. Commonwealth v. Reiff, 489 Pa. 12, 

413 A.2d 672, 674 (1980). Evidence that the accused ingested 

alcohol or other intoxicating drug—without more—does not 

warrant a voluntary intoxication instruction. Id. In Reiff, the 

evidence showed that the appellant had consumed 

approximately two and one-half quarts of beer during the 

several hours before he fatally shot a man, but there was no 

evidence that the appellant exhibited any signs of intoxication or 

unusual behavior. Id. at 673. Accordingly, we held that the 

trial court did not err in refusing to give a jury instruction as to 

diminished capacity due to voluntary intoxication. Id. at 674; 

see also Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 

203, 220–21 (1997) (holding that the trial court did not err by 

refusing to give a voluntary intoxication charge because, even 

though there was testimony that the appellant had consumed 

some alcohol prior to the killing, there was no evidence that the 

appellant had been overwhelmed or overpowered by alcohol).

Commonwealth v. Padilla, 80 A.3d 1238, 1263-1264 (Pa. 2013). 

Here, Appellant was not charged with murder, and he never introduced 

evidence that he was so intoxicated that he lost control of his faculties. 
J-S47009-16

- 9 -

Rather, his defense was that the police officers’ version of events was 

inaccurate, and he would never run from the police. N.T., 7/14/15-7/15/15, 

at 156.

After review, we conclude that voluntary intoxication, as defined in 18 

Pa.C.S. § 308, was not available as a defense. Accordingly, we conclude 

that the voluntary intoxication instruction should not have been given when 

requested by the Commonwealth. In colloquial terms, because voluntary 

intoxication could not have been used as a shield, we find that it should not 

have been utilized as a sword. Appellant never testified or asserted that he 

was too intoxicated to understand his actions or the events as they unfolded. 

If the rationale for providing the instruction was that the trial court wanted 

to make it clear to the jury that voluntary intoxication is not a defense, then 

the voluntary intoxication instruction should be given in every criminal case. 

Otherwise, it is a superfluous instruction that serves to confuse the jury 

where intoxication is not part of the defense theory.

For the reasons set forth above, we conclude that the trial court erred 

and abused its discretion when it instructed the jury on voluntary 

intoxication. Accordingly, we reverse the judgment of sentence and remand 

for further proceedings consistent with this Memorandum. 

Judgement of sentence reversed. Case remanded for a new trial. 

Jurisdiction relinquished.
J-S47009-16

- 10 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2016