J-A22032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

ULYSSES RODRIGUEZ,

Appellant No. 2163 EDA 2016

Appeal from the Judgment of Sentence January 15, 2016

in the Court of Common Pleas of Lehigh County

Criminal Division at No.: CP-39-CR-0000679-2014

BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 18, 2017

Appellant, Ulysses Rodriguez, appeals from the judgment of sentence 

imposed after his jury conviction of voluntary manslaughter. We affirm.

We take the following factual and procedural background from the trial 

court’s June 16, 2016 opinion and our independent review of the certified 

record. At trial in this matter, Michael Frichtman testified that, on January 26, 

2013, at approximately midnight, he and the victim were walking home after 

purchasing cigarettes at a 7-Eleven on Union Avenue in Bethlehem, 

Pennsylvania, when Appellant approached them and asked if they wanted to 

buy marijuana. (See N.T. Trial Vol. II, 8/19/15, at 61). When the men 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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declined and asked for Appellant’s phone number, he aggressively stated, 

“[Y]ou’re not taking my fucking number if you ain’t going to buy anything 

now.” (Id. at 63; see id. at 64). Appellant then walked away to his SUV 

parked nearby, retrieved marijuana and a handgun from the vehicle, and 

returned to the men, shoving the bag of drugs in the victim’s face, and asking 

him, “How does this smell?” (Id. at 67; see id. at 95). 

In response, the victim removed his jacket and told Appellant he wanted 

to fight. (See id. at 69). Appellant then pulled the handgun from his 

waistband, pointed it at the two men, and argued with the victim about 

fighting. (See id. at 72, 74-77). Appellant started walking away ahead of, 

but in the same direction as Frichtman and the victim, and kept arguing with 

the victim, eventually firing two shots in his general direction. (See id. at 

102). When the victim and Appellant were directly in front of each other 

outside the club, Appellant shot the victim twice in the chest, got into his 

vehicle, and drove away. (See id. at 78-81). During this entire episode, both 

the victim and Frichtman were unarmed, and Frichtman repeatedly suggested 

that they should go home. (See id. at 73-74, 77-78, 98-99, 106). 

Witness, Erica Hampton, described the events similarly. She testified 

that she heard two men arguing and overheard one of them say, “[s]o you 

gonna shoot me, shoot me.” (N.T. Trial Vol. I, 8/18/15, at 58). She stated 

that Appellant was backing up as the victim walked toward him. (See id. at 

61-62). Appellant then fired “at least three” shots toward the victim. (Id. at 
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61). The victim then charged at Appellant and the men “tussled.” (Id. at 64; 

see id. at 63). She heard “a couple more shots” and observed Appellant run 

away. (Id. at 64; see id. at 65).

Appellant testified in pertinent part that, after he put the marijuana in 

the men’s faces, “[He] was able to retreat back to the club. [He] had an open 

path to the club.” (N.T. Trial Vol. III, 8/20/15, at 51). He stated that, after 

this preliminary interaction, he took two steps backwards, put his gun away, 

and walked toward that establishment. (See id.). Just feet from the door, 

instead of entering the building, Appellant shot “warning shots” at the victim 

and Frichtman. (Id. at 58, 129). He stated that the victim then ran at him, 

bear hugged him, and a skirmish began. (See id. at 64). Appellant testified 

that he then intentionally shot the victim. (See id. at 131-32).

The forensic pathologist testified that the victim was shot twice in the 

chest. (See N.T. Trial Vol. II, at 13). The first gunshot wound showed that 

the gun was against Appellant’s skin when it was discharged. (See id. at 19, 

23). The distance of the firearm when the second shot was fired was between 

“[n]ear contact to within several inches[.]” (Id. at 34; see id. at 23). The 

wounds were seven inches apart from each other. (See id. at 35).

On August 21, 2015, Appellant was convicted of voluntary 

manslaughter. On January 15, 2016, with the benefit of a presentence 

investigation report (PSI), the trial court sentenced him to not less than ten 

nor more than twenty years’ imprisonment, which was outside the aggravated 
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range of the sentencing guidelines, but within statutory limits. The court 

denied Appellant’s post-sentence motions for judgment of acquittal and to 

modify sentence on June 16, 2016. On July 8, 2016, Appellant timely 

appealed.1

Appellant raises three issues for this Court’s review:

1. Whether the trial court erred in failing to conclude that [he] is 

entitled to judgment of acquittal because the [C]ommonwealth’s 

evidence was not sufficient to disprove [Appellant’s] self-defense 

claim beyond a reasonable doubt?

2. Whether the trial court erred in failing to conclude that the 

maximum possible sentence given by the court was unreasonable 

and excessive given the number of mitigating factors, including 

[Appellant’s] minimal prior record, and the lack of aggravating 

factors?

3. Whether the trial court erred in failing to conclude that 

[Appellant] is entitled to a new trial by reason of the court’s failure 

to instruct the jury on involuntary manslaughter as a possible 

offense?

(Appellant’s Brief, at 3).

In his first issue, Appellant argues that the trial court erred in denying 

his motion for judgment of acquittal where the Commonwealth’s evidence was 

insufficient to disprove his self-defense claim beyond a reasonable doubt. 

(See id. at 12-18). This issue lacks merit.

Our standard of review of a trial court’s denial of a motion for judgment 

of acquittal is well-settled:

____________________________________________

1 Pursuant to the trial court’s order, Appellant filed a timely concise statement 

of errors complained of on appeal on August 9, 2016, and, on September 12, 

2016, the trial court filed an opinion. See Pa.R.A.P. 1925.
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A motion for judgment of acquittal challenges the sufficiency 

of the evidence to sustain a conviction on a particular charge, and 

is granted only in cases in which the Commonwealth has failed to 

carry its burden regarding that charge.

Commonwealth v. Packer, 146 A.3d 1281, 1284, affirmed, 2017 WL 

3600581 (Pa. filed Aug. 22, 2017) (citation omitted). 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, we 

may not weigh the evidence and substitute our judgment for the 

fact-finder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant’s guilt 

may be established by the fact-finder 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. The 

Commonwealth may sustain its burden of proving every element 

of a crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the above test, 

the entire record must be evaluated and all evidence actually 

received must be considered. Finally, the trier of fact while 

passing on the credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part or none of the 

evidence.

Id. at 1285 (citation omitted). 

Pursuant to section 2503(a)(1) of the Crimes Code, “[a] person who kills 

an individual without lawful justification commits voluntary manslaughter if at 

the time of the killing he is acting under a sudden and intense passion resulting 

from serious provocation by . . . the individual killed[.]” 18 Pa.C.S.A. § 

2503(a)(1). “In order to procure a conviction for voluntary manslaughter[,] 

the Commonwealth must prove, beyond a reasonable doubt, that the homicide 
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was not justified. A killing that occurs under the mistaken belief that it was 

justified constitutes voluntary manslaughter.” Commonwealth v. Weston, 

749 A.2d 458, 462 (Pa. 2000) (citations omitted). Consequently, courts have 

commonly referred to unreasonable belief voluntary manslaughter as 

“imperfect self-defense,” because the “self-defense claim is imperfect in only 

one respect—an unreasonable rather than a reasonable belief that deadly 

force was required to save the actor’s life.” Commonwealth v. Tilley, 595 

A.2d 575, 582 (Pa. 1991).

If the defendant properly raises self-defense under Section 505 of 

the Pennsylvania Crimes Code, the burden is on the 

Commonwealth to prove beyond a reasonable doubt that the 

defendant’s act was not justifiable self-defense.

The Commonwealth sustains this burden if it 

establishes at least one of the following: 1) the accused did 

not reasonably believe that he was in danger of death or 

serious bodily injury; or 2) the accused provoked or 

continued the use of force; or 3) the accused had a duty 

to retreat and the retreat was possible with complete 

safety. 

The Commonwealth must establish only one of these three 

elements beyond a reasonable doubt to insulate its case from a 

self-defense challenge to the evidence. The Commonwealth can 

negate a self-defense claim if it proves the defendant did not 

reasonably believe he was in imminent danger of death or great 

bodily injury and it was necessary to use deadly force to save 

himself from that danger.

The requirement of 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 
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in light of the facts as they appeared to the defendant, a 

consideration that involves an objective analysis.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citations 

and quotation marks omitted).

Further,

To claim self-defense, the defendant must be free from fault in 

provoking or escalating the altercation that led to the offense, 

before the defendant can be excused from using deadly force. 

Likewise, the Commonwealth can negate a self-defense claim by 

proving the defendant used more force than reasonably necessary 

to protect against death or serious bodily injury.

Id. at 788 (citations, emphasis, and quotation marks omitted).

In this case, Appellant’s actions initiated and then escalated the 

encounter. He first approached the victim and Frichtman to try to sell them 

marijuana, and then, when they declined, he went to his vehicle, not to drive 

away, but to retrieve a gun and marijuana to shove in the victim’s face. When 

the victim reacted by saying he wanted to fight, Appellant, in spite of his clear 

path by which to retreat, escalated the situation even further by shooting 

warning shots at the men. When the unarmed victim reacted by bear hugging 

him, he put a gun against the man’s chest and pulled the trigger, shooting 

him twice, “us[ing] more force than was reasonably necessary to protect 

against death or serious bodily injury.” Id. (citation and quotation marks 

omitted). Viewing this evidence in the light most favorable to the 

Commonwealth as verdict winner, we conclude that it sustained its burden of 

disproving self-defense and establishing voluntary manslaughter where 
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Appellant had an unjustified belief that shooting the unarmed victim in the 

chest was necessary to defend himself. See Packer, supra at 1285. The 

trial court properly denied Appellant’s motion for judgment of acquittal. See 

id. at 1284. Appellant’s first issue lacks merit.

In his second issue, Appellant challenges the discretionary aspects of 

his sentence. (See Appellant’s Brief, at 18-24). Specifically, he maintains 

that his sentence is excessive in light of mitigating factors. (See id.). 

Appellant’s issue lacks merit.

[A] challenge [to the discretionary aspects of a sentence] is 

not automatically reviewable as of right. Before we review such a 

claim on the merits, we engage in a four part analysis to 

determine:

(1) whether the appeal is timely; (2) whether 

Appellant preserved his issue; (3) whether Appellant’s 

brief includes a concise statement of the reasons 

relied upon for allowance of appeal with respect to the 

discretionary aspects of sentence [see Pa.R.A.P. 

2119(f)]; and (4) whether the concise statement 

raises a substantial question that the sentence is 

appropriate under the sentencing code. . . .

We decide the substantive merit of the claims only if each 

requirement is satisfied.

Commonwealth v. Tejada, 161 A.3d 313, 320 (Pa. Super. 2017) (citations 

omitted).

In this case, Appellant preserved his issue in a post-sentence motion, 

timely appealed, and his brief includes a concise statement of the reasons 

relied upon for appeal. (See Appellant’s Post-Sentence Motions, 1/22/16, at 

unnumbered pages 3-7; Notice of Appeal, 7/08/16; Appellant’s Brief, at 18-
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19). Also, his issue raises a substantial question. See Commonwealth v. 

Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (“[A]n excessive sentence 

claim—in conjunction with an assertion that the court failed to consider 

mitigating factors—raises a substantial question.”) (citation omitted). 

Accordingly, we will review the merits of Appellant’s sentencing claim.

Our standard of review of this matter is well-settled:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (citation 

omitted). “Our Supreme Court has determined that where the trial court is 

informed by a [PSI], it is presumed that the court is aware of all appropriate 

sentencing factors and considerations, and that where the court has been so 

informed, its discretion should not be disturbed.” Commonwealth v. 

Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (citation omitted).

Here, the record reflects that the court did not abuse its discretion in 

sentencing Appellant. It reviewed letters from members of the community, 

and heard testimony from Appellant, his mother, and the victim’s mother. 

(See N.T. Sentencing, 1/15/16, at 5, 43-73). It considered the expert 

testimony of forensic psychologist Dr. Frank Dattilio, who conducted an 

evaluation of Appellant. (See id. at 6-29). Based on an extensive two-day 
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interview, psychological testing, questioning of Appellant’s mother, and a 

review of all documentation and reports relative to this case and Appellant’s 

history, Dr. Dattilio concluded Appellant is narcissistic, paranoid, impulsive, 

and overly defensive. (See id. at 9-10, 13-14). He testified that this explains 

“a lot of his difficulty with reading situations and overreacting[,]” and that “he 

is prone to misread and misinterpret the actions of others.” (Id. at 16-17). 

Dr. Datillio stated that these tendencies could only be overcome after “several 

years in intensive treatment[.]” (Id. at 19). 

Additionally, the court put all the reasons for its decision on the record. 

(See Trial Court Opinion, 6/16/16, at 1, 8; see also N.T. Sentencing, at 101-

03, 105-06). It explained:

. . . [T]he reasons for deviating from the sentencing guidelines are 

as set forth in this sheet that the District Attorney has handed to 

me . . . . The impact of the crime [on] the victim and the victim’s 

family . . . . The impact of [the] crime on the community; 

[Appellant’s] lack of insight or remorse; [and] [Appellant’s] 

numerous prison misconducts . . . listed in the back of the PSI. . 

. . 

* * *

. . . [Appellant’s] history and penchant for fighting and disorderly 

behavior. [Appellant’s] future dangerousness, likelihood to 

reoffend and poor prognosis for rehabilitation as evidenced by his 

crime, his lack of insight, his prison misconducts, and his 

psychological evaluation. [Appellant’s] involvement in drug 

dealing at the time of the crime. . . .

* * *

. . . [P]ossession of an illegal firearm which he used in the crime 

and carried during his drug dealing activities. [Appellant’s] flight 
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and concealment after the crime. . . . Endangerment of others 

during the crime. . . .

* * *

. . . The decision to kill formed over a relatively lengthy time 

horizon and [was] not a split second decision. The victim’s 

family[’s] recommendation. The arresting officer’s 

recommendation, and the more egregious nature of this crime 

when compared to the typical voluntary manslaughter. . . . I think 

what you are talking about is an excessive force . . . where the 

[victim was] not engaged in illegal activity and otherwise didn’t 

initiate the confrontation. . . .

(N.T. Sentencing, at 101-03, 105-06).

Based on the foregoing, and the fact that the court possessed a PSI, 

and therefore is presumed to have considered all sentencing factors and 

mitigating circumstances, we conclude that it properly exercised its discretion 

in sentencing Appellant. See Johnson, supra at 826; Downing, supra at 

794. Appellant’s second issue does not merit relief.

In his third claim, Appellant maintains that the trial court erred in failing 

to give the involuntary manslaughter jury instruction. (See Appellant’s Brief, 

at 24-28). This issue is waived and would lack merit.

[Our Supreme Court held] 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.

Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005) (footnote 

omitted). 
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Here, although Appellant requested a charge on involuntary 

manslaughter, the trial court declined, stating that it “didn’t see any evidence 

which would warrant [such] an instruction . . . .” (N.T. Trial Vol. III, at 158). 

Appellant did not object. (See id.). Therefore, this issue is waived. See 

Pressley, supra at 225. Moreover, it would not merit relief.

“[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. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation 

omitted). An “[involuntary] manslaughter charge shall be given only when 

requested, where the offense has been made an issue in the case, and the 

trial evidence reasonably would support such a verdict.” Commonwealth v. 

Patton, 936 A.2d 1170, 1177 (Pa. Super. 2007) (citations omitted). “A 

person is guilty of involuntary manslaughter when as a direct result of the 

doing of an unlawful act in a reckless or grossly negligent manner . . . he 

causes the death of another person.” 18 Pa.C.S.A. § 2504(a).

In the case sub judice, there was no evidence to support a claim that 

Appellant’s shooting of the unarmed victim was either reckless or grossly 

negligent. He initiated and escalated the incident, and then intentionally shot 

the unarmed victim in the chest at very close range. Such a shooting rises 

above the mere recklessness or accident required to support an involuntary 

manslaughter charge and, his mere assertion that he did not intend to kill the 
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victim, does not render his actions involuntary manslaughter. See 

Commonwealth v. Briggs, 12 A.3d 291, 307 (Pa. 2011), cert. denied, 565 

U.S. 889 (2011) (concluding defendant’s shooting of victims in chest and 

abdomen at close range supported first degree murder charge even where 

defendant declared he did not intend to kill victims); Commonwealth v. 

Murray, 83 A.3d 137, 151 (Pa. 2013) (“[A] specific intent to kill may be 

inferred by the use of a deadly weapon upon a vital organ of the body.”) 

(citation omitted). 

Based on the foregoing, we conclude that the trial court did not err in 

denying Appellant’s request for a jury instruction on the crime of involuntary 

manslaughter where “the trial evidence [could not reasonably] support such 

a verdict.” Patton, supra at 1177; see Yale, supra at 983.2 Appellant’s 

third issue lacks merit.

Judgment of sentence affirmed.

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2 Moreover, we are not legally persuaded by Appellant’s reliance on 

Commonwealth v. McCloskey, 656 A.2d 1369 (Pa. Super. 1995), appeal 

denied, 668 A.2d 1126 (Pa. 1995). (See Appellant’s Brief, at 27). In 

McCloskey, the defendant recklessly fired the gun up the stairs without 

aiming at the victim, who had initiated the confrontation. See McCloskey, 

supra at 1374 (defendant testifying that he did not aim gun and that, “for all 

I knew, [the] bullet could have gone anywhere.”). Here, Appellant initiated 

and escalated the incident, and then intentionally shot the unarmed victim in 

the chest, at very close range. Therefore, we do not find McCloskey legally 

persuasive.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/17