J-S38006-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEMETRIUS MONTIS JOSEPH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 840 EDA 2018

Appeal from the Judgment of Sentence February 14, 2018

In the Court of Common Pleas of Chester County 

Criminal Division at No(s): CP-15-CR-0003865-2015

BEFORE: OTT, J., DUBOW, J., and COLINS, J.

MEMORANDUM BY OTT, J.: FILED OCTOBER 24, 2019

Demetrius Montis Joseph appeals from the judgment of sentence 

imposed February 14, 2018, in the Chester County Court of Common Pleas. 

On November 3, 2017, a jury convicted Joseph of one count of second-degree 

murder, one count of conspiracy to commit robbery, one count of robbery 

(causing serious bodily injury), five counts of robbery (placing in fear of 

immediate serious bodily injury), and five counts of robbery (placing in fear 

of immediate bodily injury).

1

 The court sentenced Joseph to an aggregate 

term of life imprisonment. On appeal, Joseph challenges the court’s 

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 Retired Senior Judge assigned to the Superior Court.

1

 See 18 Pa.C.S. §§ 2502(B), 903, 3701(a)(1)(i), 3701(a)(1)(ii), and 

3701(a)(1)(iv), respectively.
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instruction in response to a jury question. For the reasons below, we affirm 

the judgment of sentence.

The underlying facts are as follows. On October 4, 2015, Joseph, his 

co-defendant, Dajon Rowe, and three other men, conspired to rob a group of 

migrant workers at their home in Coatesville, Pennsylvania. During the 

robbery, two of the victims, Juan Antonio Jimenez-Ramon and Juan Antonio 

Sanchez-Gutierrez, were shot while another victim, Catalino RodriguezRamon was knocked unconscious. Jimenez-Ramon died as a result of his 

injuries. 

Joseph was charged with multiple crimes related to the incident. The 

matter proceeded to a five-day jury trial beginning on October 30, 2017.2 On 

November 3, 2017, the jury convicted Joseph of the above-mentioned crimes. 

As noted by the trial court, “The evidence introduced at trial clearly supported 

the jury’s guilty verdicts, especially the introduction of prison telephone calls 

in which [Joseph] admitted his involvement and culpability with regard to the 

crimes for which he was convicted.” Trial Court Opinion, 12/28/2018, at 1. 

Subsequently, on February 14, 2018, the court sentenced Joseph to the 

following: (1) a term of life imprisonment for the second-degree murder 

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2

 The Commonwealth’s theory was Joseph and two of the other men came up 

with the idea of robbing someone, they recruited Rowe and a fifth man to join 

the criminal action, and Rowe was the active shooter while the other men 

provided the “muscle.” N.T., 10/30/2017, at 29. Joseph’s defense was that 

he was merely present at the scene. Joseph and Rowe were tried together.
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conviction; (2) a concurrent term of five to ten years’ imprisonment for the 

conspiracy conviction; and (3) three concurrent terms of five to ten years’ 

incarceration for the robbery (placing in fear of immediate serious bodily 

injury) offenses. The remaining charges merged for sentencing purposes. 

This appeal followed.3

In his sole issue on appeal, Joseph complains the trial court erred by 

overruling his objection and improperly instructing the jury with respect to a 

jury question. See Joseph’s Brief at 8. 

By way of background, the jury posed the following question to the 

court: “Bullet Point 1 under Third Degree Murder: For Third Degree Murder, 

does the second of the two elements that Dajon Rowe killed him, mean we 

cannot consider [Joseph] for Third Degree Murder.” N.T., 11/3/2017, at 161.4 

In an on-the-record conference, the following exchange occurred between the 

parties and the court:

[THE COURT]: The short answer to that is, of course, they can 

consider Mr. Joseph for Third Degree Murder as it has been 

explained to [them] and given to them in written instructions. The 

Commonwealth’s theory on Third Degree Murder is that Rowe is 

the shooter and Joseph is the accomplice. The Commonwealth 

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3

 On March 22, 2018, the trial court ordered Joseph to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following 

numerous time extensions, Joseph filed a concise statement on December 5, 

2018. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on 

December 28, 2018.

4

 The court had previously instructed the jury on accomplice liability and 

criminal conspiracy. See N.T., 11/3/2017, at 113-115, 120-123, and 131-

133.
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has, throughout the trial, requested a jury charge from -- I would 

say the only case that says this right now, but they will try to find 

other cases is [Commonwealth v. King, 990 A.2d 1172 (Pa. 

Super. 2010)], where on a sufficiency analysis they have 

language, on appeal, we found appella[nt] had entered a 

conspiracy to commit an armed robbery. The killing was a natural 

and probable consequence of the element of robbery, and as a 

conspirator the appella[nt] was liable for the killing he carried out 

by his co-conspirator. The Commonwealth has asked for some 

time to see if they can get some authority on that. The defense, 

I assume, is objecting to going beyond the question asked; is that 

correct?

[Joseph’s counsel]: Yes, Judge.

...

THE COURT: I will wait and see what the caselaw is. I will educate 

myself on that. It’s a confusing area of the law because of this: 

Murder Two is consistently the idea of – it’s basically you’re in for 

the conspiracy, you’re in for the homicide. Murder Three does not 

have that basic thing. It’s the difference of Murder Two and 

Murder Three. Murder Three is a killing of malice. The 

Commonwealth chose not to go with conspiracy to commit Murder 

Three, because of some caselaw up there or whatever reasons, 

but their position is, well, if you found a conspiracy to commit 

robbery, then you can find Murder Three. I will have to read the 

cases to see if I’m comfortable approaching that. It’s an issue 

raised by the [C]ommonwealth. It’s not in the standard jury 

instructions and I have yet to find a case that’s ever instructed on 

that and I’ve been looking all day. But I will look at that when 

they bring it up and we will go from there. Okay, I think that we’ll 

probably give [the Commonwealth] ten minutes. We probably all 

need to meet back here, so if you want to hang here, that’s fine. 

If you have anything else you want me to read, shoot it [to] my 

computer while I’m sitting here. Off the record.

BRIEF PAUSE IN THE PROCEEDING

THE COURT: On the record. The question is: Bullet Point 1 on 

Third Degree Murder, for Third Degree Murder, there’s a second 

of three elements did Dajon Rowe kill him. Meaning, we cannot 

consider Mr. Joseph for Third Degree Murder. The answer is: No. 

You can consider Demetrius Joseph. Then, I’m going to use from 
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[Commonwealth v. Shamsid-Deen, 64 A.3d 274 [2307 EDA 

2011] (Pa. Super. 2013) (unpublished memorandum)] a nonpresidential opinion, but I find it persuasive because it’s dealing 

with some of the issues at hand, a discussion about that case is 

when someone can be guilty of Third Degree Murder as an 

accomplice, quoting that case. I understand [Joseph’s counsel], 

you object to going beyond the question?

[Joseph’s counsel]: I do.

THE COURT: I understand that, but I thin[k] the jury is 

wrest[l]ing with a complex issue. We have been discussing at 

length the Commonwealth’s theory, which I’m not going to get 

into now, but basically they requested a theory based on 

Commonwealth versus King of an instruction about conspiracy and 

if the killing is a natural and probabl[e] consequence of an armed 

robbery. The only reason I have not done that is because it’s 

simply something going to sufficiency of evidence. I have not 

found any legal instruction saying that in any judicial guidebooks 

or talking to other Judges about it. I know that principle has 

floated around there, but we’re not even talking about conspiracy 

here as far as Murder Three. I find it very confusing when that 

basic theory is if you are partner in crime it applies to Murder Two 

throwing that in a Murder Three where there could have been a 

charge of conspiracy to commit Murder Three. So that’s my ruling. 

I understand the Commonwealth would like me to give the natural 

and probable consequence charge; correct, [the Commonwealth]? 

If they come back with something along those lines, I may 

consider that, but now I have to narrowly answer this question, 

and I think I can narrowly explain it, but then going into basically 

what accomplice liability means and that’s pretty much a textbook 

statement of the state of the law.

[Joseph’s counsel]: And I agree, Judge. I would just ask that the 

Court instruct that, I know I don’t want it to sound like the Court 

is saying, you know, Mr. Joseph is not an accomplice. They have 

to still find that . . . he is an accomplice. That’s for their 

determination. I just don’t want the instruction –

THE COURT: I will throw in the defense’s theory is that he was 

merely present. I will put that in there. I will rework that 

language to get your theory of the case in.
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[Joseph’s counsel]: I don’t want it to come across to the jury that 

the Court finds he’s an accomplice, so.

THE COURT: Absolutely. You have heard both sides. The 

Commonwealth says he’s an accomplice because it was his idea, 

and he provided muscle and the defense says he was merely 

present; okay.

Id. at 161-165.

The Court then instructed the jury as follows:

The question was asking about Third Degree Murder regarding Mr. 

Demetrius Joseph and the question was Bullet Point 1 on Third 

Degree Murder, for Third Degree Murder is the second of the three 

elements: Did Dajon Rowe kill, meaning, we cannot consider 

Demetrius Joseph for Third Degree Murder. The answer to that 

is, no, it doesn’t mean that. You certainly can consider Mr. Joseph 

for Third Degree Murder. The whole thing here is that the 

Commonwealth’s theory on Third Degree Murder is that Mr. Rowe 

is the shooter and Mr. Joseph is an accomplice. I described to you 

what an accomplice was. You heard both sides on this. The 

defense said he was merely present. The Commonwealth said it 

was his idea to do a robbery. He was there to help provide muscle 

regarding that. The law about this, to refresh you about 

accomplice liability, the defendant may be guilty of Third Degree 

Murder as an accomplice if you find, one, he was just there not 

doing anything. The other one is that he is actively participating 

in a robbery. The Crime[s] Code defines accomplice as a person 

with the intent of promoting or facilitating the commission of a 

crime. He either solicits someone, a person to commit it or agrees 

or attempts to aid such person to commit it. Basically, as I said 

all along, he’s a helper. He helped the crime get committed. An 

accomplice liability may be established only by circumstantial 

evidence and only the least degree of concert and conclusion in 

the commission of the offense is sufficient to sustain the party 

responsible for the accomplice. Accomplice liability does not 

require the defendant to have a conscious motive to cause a 

particular result. Phrased differently, accomplice need not intend 

a death to result from [the] actions of another. Accomplice 

liability requires that the defendant have the mental state required 

for commission of a crime. Simply put, a person may be guilty of 

Third Degree Murder as an accomplice so long as he acts with 

malice while potentially aiding another. So the whole theory here 
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is Dajon Rowe is the shooter and Mr. Joseph is this helper. So to 

answer your question is certainly you can consider him for that. 

You have to weigh the arguments of counsel. You have heard 

[Joseph’s counsel] say he was merely present. You have heard 

the DA say it was his idea and he was there as muscle. Follow 

me?

THE JURY: Yes.

Id. at 166-168.

Joseph claims:

The trial court answered the question improperly as the answer 

went beyond the specific question asked to include discussion and 

examples of accomplice liability and criminal conspiracy even 

though the jury had not asked for any instruction on this. 

Providing this to the jury without any indication that the jury 

wanted or needed an explanation on these matters was prejudicial 

to [Joseph] and improper.

Joseph’s Brief at 8. Moreover, he states:

The jury’s question was very specific. The jury simply wanted an 

answer concerning whether 3rd degree Murder was still available 

as an option to Mr. Joseph if they found that Dajon Rowe was not 

the shooter.

...

There was absolutely no need to reinstruct the jury with respect 

to accomplice liability and criminal conspiracy. By giving the jury 

an instruction on accomplice liability and criminal conspiracy and 

revisiting both the Commonwealth’s and [Joseph]’s theory of the 

case and arguments of counsel, in a brief and concise manner, the 

trial judge improperly instructed the jury with additional 

information that wasn’t necessary and prejudiced [Joseph]. The 

answer was confusing and unnecessary and resulted in the jury 

convicting [Joseph] of 2nd degree Murder.

Id. at 9-10. Lastly, Joseph contends the court’s instruction did not constitute 

harmless error, alleging: “If the trial court confused or gave an inappropriate 
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answer to the jury, thus removing 3rd degree Murder as a viable option for the 

jury, then it is unfair and disingenuous to simply state that this was harmless 

error.” Id. at 10.

With respect to jury instructions, we are guided by the following:

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.” 

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

2014) (citations and quotation omitted). 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.” Id. (citations and 

quotation omitted). “Only where there is an abuse of discretion 

or an inaccurate statement of the law is there reversible error.” 

Id. (citations and quotation omitted).

Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017), appeal 

denied, 183 A.3d 970 (Pa. 2018).

Here, the court found the following:

After reviewing the charge as a whole and how the jury was 

instructed in response to its question, the court finds that the jury 

was properly advised as to the appropriate standard to apply. The 

applicable standard was accurately explained to the jury, and 

there was no fundamental error or confusion with regard to what 

the jury was told. Thus, the court finds that the issue raised by 

[Joseph] in his appeal is without merit.

In addition, even if it is found that the answer given to the jury 

was incorrect and/or should not have been given, this alleged 

error was harmless. The question asked by the jury and the 

answer given by the court dealt with the charge of third degree 

murder. The verdict slip given to the jury read in pertinent part:

1. Do you find Defendant, Demetrius Joseph, guilty or not 

guilty of the offense of Second Degree Murder?
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Guilty _____ Not Guilty ______

If your answer to the above is Guilty, do not answer number 

2; proceed to number 3.

If your answer to the above is Not Guilty, proceed to number 

2.

See Verdict Slip. In this case, [Joseph] was found guilty of second 

degree murder. Accordingly, as instructed, the jury did not render 

a verdict for third degree murder. Thus, even if the court’s 

instructions to the jury should not have been given, [Joseph] 

suffered no prejudice as a result of the court’s actions.

Trial Court Opinion, 12/28/2018, at 3-4.

We agree. In essence, Joseph alleges that the court’s instruction went 

beyond the scope of the jury’s specific question by unnecessarily repeating 

the instructions for accomplice liability and criminal conspiracy. Notably, the 

court only instructed the jury as to accomplice liability with respect to thirddegree murder. Moreover Joseph never complained the instruction was

irrelevant or a misapplication of the law.5 

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5

 The Pennsylvania Rules of Criminal Procedure indicate that “[n]o portions

of the charge nor omissions from the charge may be assigned as error, unless

specific objections are made thereto before the jury retires to deliberate.” 

Pa.R.Crim.P. 647(C). Furthermore, “the mere submission and subsequent

denial of proposed points for charge ... 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. Sanchez, 82 A.3d 943, 978 (Pa.

2013) (citation omitted), cert. denied, 574 U.S. 860 (2014); see also

Pa.R.A.P. 302(b) (“Charge to jury. A general exception to the charge to the

jury will not preserve an issue for appeal. Specific exception shall be taken to 

the language or omission complained of.”). As such, any challenge to the 

specific language of the accomplice liability jury instruction in the present 

matter has been waived. 
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As such, our review of the certified record leads us to conclude the jury 

instruction given by the trial court was proper. This was a complex issue, as 

indicated by the court,6 and based on the jury’s question, a recitation on the 

theory of accomplice liability was not an abuse of discretion. Accordingly, we 

find the instruction accurately described the law and was appropriate in light 

of the evidence presented at trial.7 Therefore, Joseph’s sole argument on 

appeal fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/19

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6

 See N.T., 11/3/2017, at 164.

7

 Furthermore, we agree with the court that any error would be harmless 

because the jury found Joseph guilty of second-degree murder and therefore, 

did not have to reach the issue of whether Joseph’s actions amounted to 

accomplice liability in a third-degree murder situation. See Verdict Slip, 

11/3/2017, at unnumbered 1.