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[U] Commonwealth v. Miller

Superior Court of Pennsylvania

February 19, 2014

RICKY L. MILLER, JR. Appellant


Appeal from the Judgment of Sentence August 3, 2012 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002605-2009




Appellant, Ricky L. Miller, Jr., appeals from the August 3, 2012 judgment of sentence of life imprisonment without possibility of parole, imposed after Appellant entered a guilty plea to homicide[1] generally in connection with the shooting death of Kenneth Geiger (the victim), and was found guilty of first-degree murder[2] by the trial court at the subsequent degree-of-guilt hearing.[3] After careful review, we affirm.

The factual and procedural history of the case, as summarized from the record, follows. Appellant was married to Ashley Miller, and in 2009, the couple had three children, a new home at 640 Narvon Road, Gap, Pennsylvania, and a business that afforded them a comfortable living. Appellant and Ashley were experiencing marital discord and in June 2009, Appellant asked Ashley to move out after she purchased a new vehicle, a Volvo SUV, against Appellant's wishes. Ashley and the children moved in with her parents, who lived a couple miles away from the Miller home in eastern Lancaster County.

Prior to that time, Ashley had rekindled an ongoing physical relationship with the victim, a former paramour. The victim was incarcerated for a short time for violating a protection from abuse (PFA) order entered for the protection of the victim's estranged wife and children. Ashley corresponded with the victim during his incarceration and resumed seeing him after his release.

After separating, Ashley told Appellant that she was seeing the victim but did not tell him that the relationship had been ongoing. Prior to the shooting, Appellant sent a number of threatening statements and text messages to Ashley and the victim, wherein he employed phrases such as "brains going everywhere, " "a dead man, " and "its hunting season on Creekbend Drive" (the victim's home street in Cumberland County). N.T., 8/1-3/12, at 34-39, 591. Following an incident where Appellant called Ashley and fired a gun while on the phone to make her believe he was shooting himself, Ashley removed a Smith and Wesson .357 and ammunition, including ammunition for Appellant's .45 caliber Glock, from their home when she returned to retrieve some of her belongings. She did not remove the .45 caliber Glock because she was concerned Appellant would notice. Ashley took the Smith and Wesson to her parents' home. Ashley and her parents took the Smith and Wesson to the police in Cumberland County following the shooting.

On July 20, 2009, Appellant contacted Ashley, demanding she come to their house. He revealed that he had discovered the victim's letters to Ashley, written while the victim was incarcerated. Upon her arrival, Ashley saw Appellant burning her childhood and family pictures. Subsequently, Ashley obtained a temporary PFA order. Appellant made comments to other people, including Ashley's parents and a friend, John Redcay, about his desire to kill the victim.

Prior to the shooting, Appellant travelled the 75 miles from his home in Lancaster County to the victim's place of employment and home in Cumberland County, intending to confront him. Missing the victim at work but obtaining his work schedule, Appellant spent the night in his vehicle and followed the victim after he was picked up by a co-worker the next morning to drive to his workplace. The victim noticed Appellant following them. The co-worker was able to maneuver his vehicle behind Appellant's vehicle, which avoided further confrontation that day. The victim reported the incident to the local police. The victim later contacted the police about the threatening texts he and Ashley received from Appellant. The police advised Appellant to stay away from the victim. Nevertheless, the threatening texts continued. The morning of the shooting, the police again warned Appellant to have no more contact with the victim.

The night before the shooting, Saturday, July 25, 2009, Ashley and the children encountered Appellant, driving a rented vehicle, at a gas station on her way back to her parents' home from a day of bowling with the victim. Appellant related that he was on his way to meet with the police in Cumberland County because he was in trouble because of her boyfriend. He further made the following comment. "[Y]ou just wait and see. What I am about to do will make headlines." N.T. 8/1-3/12, at 48. The next day Appellant called the victim's ex-wife and informed her he was going to the victim's house. She tried to dissuade him.

Ashley and the children returned to see the victim the next day. They picked up the victim and did some grocery shopping. Returning to the victim's house around 11:00 p.m., Ashley was driving her Volvo SUV, the victim was in the front passenger seat, and the children were in car seats in the back. When approaching the victim's residence, Ashley noticed Appellant waiting in his rented vehicle. Ashley drove toward the cul-de-sac's mailboxes when Appellant maneuvered his vehicle in a fashion that prevented her from proceeding. Appellant then approached the driver's side of Ashley's vehicle with the .45 caliber Glock in his waist band. Appellant reached in through the driver's side window past Ashley's head with the gun and shot the victim in the head. Forensic evidence suggested from the position of the wound that the victim was either flinching away from Appellant or attempting to exit the vehicle. Appellant then told Ashley, "I told you never to f---k with me, you f ------- g bitch." Id. at 62. Appellant returned to his vehicle and sped off. When Ashley drove on for help, the front passenger side door swung open. Appellant testified he saw a gun in the victim's possession, but no gun was found at the scene. The victim did not own a gun, but Appellant suggested it was the Smith and Wesson removed earlier by Ashley from the marital residence.[4]

Appellant drove to a nearby used car dealership where he attempted to unload his gun and dropped it by the side of his vehicle. He then took some sleeping pills, climbed to the top of an oil tank tower and fell asleep. Police searched Appellant's home and found a partially emptied box of Remington ammunition for a .30-06 rifle on a living room couch, a spent round of Remington ammunition found in the yard outside, and a bullet hole in the back-yard swing set. A neighbor reported hearing a gunshot the prior evening. After about 24 hours, Appellant and his vehicle were located at the dealership. The .45 caliber Glock was found on the pavement outside the vehicle. Appellant stumbled and fell off the tower, sustaining injuries. Appellant was arrested and flown to Hershey Medical Center. A search of Appellant's vehicle disclosed a blanket on the floor of the vehicle, under which was found a .30-06 rifle, loaded with four bullets, together with a Bushnell scope. Police also found a box of .45 caliber hollow point bullets that fit the .45 caliber Glock, two pillows, some bottled water, and a brief case containing the letters from the victim to Ashley, a business card from the victim's employer with his work hours written on the back, $745.00 in cash, and empty pill bottles. Additionally, $3, 980.00 in cash was found on Appellant's person. Testimony revealed that Appellant customarily used pillows and blankets to steady himself when shooting.

At the hospital, Appellant made statements to the police. Appellant stated that the victim "should be dead. I shot him with a .45 Glock from like a foot or something." Id. at 189. Appellant later related to the police that the killing had almost happened when he had followed the victim to work. Id. at 356. Appellant described the shooting to the police, indicating he "pushed" his hand past Ashley to avoid hurting anyone else. Id. at 359. He indicated an awareness that the children were in the vehicle when he shot the victim. Id. at 360. While in prison awaiting trial, Appellant made further inculpatory statements in correspondence to Ashley and to the members of a hunting club to which he had belonged.

On July 27, 2009, Appellant was charged in a criminal complaint with homicide and four counts of reckless endangerment. After a preliminary hearing held October 2, 2009, all charges were bound over to the trial court. After several continuances, Appellant was arraigned on April 15, 2010. On that date, pursuant to Pennsylvania Rule of Criminal Procedure 802, the Commonwealth filed a notice of its intent to present aggravating circumstances at sentencing, thus permitting the possibility for the imposition of a death sentence if Appellant was convicted of first-degree murder.[5]

On January 13, 2011, Appellant filed an omnibus pretrial motion. Therein, among other issues, Appellant challenged whether the Commonwealth made out a prima facie factual basis for asserting aggravating circumstances. Appellant also raised a generalized challenge to the constitutionality of Pennsylvania's death sentence statue.[6] Following a May 11, 2011 hearing, the trial court denied Appellant's omnibus pretrial motion on August 3, 2011.

On July 19, 2012, Appellant entered a plea of guilty to homicide generally. Per agreement, the Commonwealth dropped the reckless endangerment counts and withdrew its notice of aggravating circumstances, obviating the death penalty as a sentencing option in the case. N.T., 7/19/12, at 4. Pursuant to Pennsylvania Rule of Criminal Procedure 803, the case then proceeded to a degree-of-guilt hearing held on August 1-3, 2012 before the trial judge. At the conclusion of the degree-of-guilt hearing on August 3, 2012, the trial court found Appellant guilty of first-degree murder and sentenced him to life imprisonment without the possibility of parole. On August 13, 2012, the Commonwealth filed a motion to modify sentence, seeking a restitution award to the victim's Compensation Assistance Program. On August 14, 2012, the trial court granted the Commonwealth's motion and amended Appellant's sentence to include the requested restitution. Appellant did not file any post-sentence motions. Appellant filed a timely notice of appeal on August 28, 2012. On appeal, Appellant raises the following issues.[7]

I. Did the [trial] court err when it determined that the Pennsylvania death penalty statute is constitutional, both on its face and as applied?
II. Did the [trial] court err in determining that the Commonwealth presented sufficient evidence that [Appellant] committed murder in the first degree[, ] which was not a voluntary manslaughter?

Appellant's Brief at 6.

In his first issue, Appellant attempts to raise a constitutional challenge to Pennsylvania's Death Penalty Statute, 42 Pa.C.S.A. § 9711. Id. at 16, 24. The gravamen of Appellant's argument is that the overall statutory scheme for imposition of the death penalty contains insufficient checks of prosecutorial discretion, resulting in the improper use by the prosecution of a notice of intent to present aggravating circumstances in order to coerce involuntary guilty pleas. Id. at 24-25. "The broad range of aggravating factors, coupled with broad prosecutorial discretion, has resulted in merely shifting the arbitrary imposition of the death penalty that concerned the U.S. Supreme Court in Georgia v. Furman[, 408 U.S. 238 (1972)] from the judge and jury and into the hands of the prosecutor." Id. at 23. "The doctrine of intelligent and voluntary guilty pleas is intimately related to due process concerns regarding vindictive actions by a prosecutor, in that the deterrence effect of a prosecutor taking actions for improper motives may lead to a defendant entering a guilty plea that is not truly voluntary and intelligent." Id. at 29.

"Appellate review of constitutional challenges to statutes … involve a plenary scope of review. As with all questions of law, the appellate standard of review is de novo." Commonwealth v. Shawver, 18 A.3d 1190, 1194 (Pa.Super. 2011) (internal quotation marks and citations omitted). "All properly enacted statutes enjoy a strong presumption of constitutionality." Id. at 1193 (citations omitted).

In the instant case, however, Appellant has waived this issue. "Settled Pennsylvania law makes clear that by entering a guilty plea, the defendant waives his right to challenge on direct appeal all non jurisdictional defects except the legality of the sentence and the validity of the plea." Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.Super. 2013) (citation omitted).[8] Appellant does not here challenge the legality of his sentence inasmuch as he did not receive the death penalty. Rather, he challenges the sentencing statute relative to its effect on his decision to plead guilty to homicide generally. Appellant's Brief at 27-37. However, Appellant did not challenge the voluntariness of his plea before the trial court.

A defendant wishing to challenge the voluntariness of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either measure results in waiver. Historically, Pennsylvania courts adhere to this waiver principle because [i]t is for the court which accepted the plea to consider and correct, in the first instance, any error which may have been committed.

Lincoln, supra at 609-610 (Internal quotation marks and some citations omitted).[9]

Although Appellant challenged the constitutionality of the death penalty statute in his omnibus pretrial motion, he did so in a cursory and boilerplate fashion. Appellant's motion contended as follows. "The penalty of death, inherently and as applied, constitutes cruel and unusual punishment and violates due process of law under both the Pennsylvania and United States Constitutions and therefore, may not be sought against [Appellant]." Omnibus Pretrial Motion, 1/13/11, at 5, ¶ 8. A review of the record discloses no further briefing or argument on the issue by Appellant, articulating any exposition of his constitutional challenge, let alone the argument now advanced on appeal.

"[I]t is incumbent upon one raising the specter that a statute is unconstitutional [before a trial court] to state, at least in somewhat express terms, the specific constitutional grounds upon which the challenger is basing its attack on the legislation." In Re F.C. III, 2 A.3d 1201, 1212 (Pa. 2010) (finding appellant waived the various grounds upon which he challenged the constitutionality of a statute, where appellant failed to advance those grounds before the juvenile court).

Issue preservation is foundational to proper appellate review. Our rules of appellate procedure mandate that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). By requiring that an issue be considered waived if raised for the first time on appeal, our courts ensure that the trial court that initially hears a dispute has had an opportunity to consider the issue.

Id. at 1211-1212. Accordingly, we conclude Appellant has waived his first issue.

Appellant's second issue challenges the sufficiency of the evidence supporting the trial court's determination at the degree-of-guilt hearing that Appellant was guilty of first-degree murder. Appellant's Brief at 40.

In considering the sufficiency of the evidence for a first-degree murder conviction, this Court must ascertain whether the evidence introduced at trial and all reasonable inferences derived from that evidence, viewed in the light most favorable to the Commonwealth as verdict-winner, was sufficient to establish beyond a reasonable doubt all the elements of first-degree murder. Our standard of review is de novo and our scope of review is plenary.
First-degree murder is an intentional killing, i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(a), (d). In order to prove first-degree murder, the Commonwealth must establish that: (1) a human being was killed; (2) the accused caused the death; and (3) the accused acted with malice and the specific intent to kill. The jury may infer the intent to kill based upon the defendant's use of a deadly weapon on a vital part of the victim's body. In reviewing whether the evidence was sufficient to support a first-degree murder conviction or convictions, the entire trial record must be evaluated and all evidence considered. In applying the above standards, we bear in mind that the Commonwealth may sustain its burden by means of wholly circumstantial evidence, and the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence.

Commonwealth v. Sanchez, ___A.3d ___, 2013 WL 6619130 (Pa. 2013) (internal quotation marks and some citations omitted).

A plea of guilty to murder generally is a defendant's acknowledgement that he participated in certain acts with criminal intent. After such a plea, the trial court must hold a degree of guilt hearing to determine whether the homicide was murder of the first, second, or third degree, or voluntary manslaughter. The Commonwealth has the burden to prove, beyond a reasonable doubt, a higher degree of murder than third degree. The judge before whom the plea was entered will determine the degree of guilt. Pa.R.Crim.P. 590(c).

Commonwealth v. Passmore, 857 A.2d 697, 709-710 (Pa.Super. 2004) (some citations omitted), appeal denied, 868 A.2d 1199 (Pa. 2005). "A plea to murder generally raises a presumption of malice, an essential element of third degree murder; the defendant may rebut the presumption of malice by introducing evidence negating this element, thereby reducing the degree of guilt to voluntary manslaughter." Commonwealth v. White, 910 A.2d 648, 665 (Pa. 2006) (citations omitted). "[T]hird-degree murder is a killing done with legal malice but without the specific intent to kill required in first-degree murder." Commonwealth v. Kendricks, 30 A.3d 499, 508 (Pa.Super. 2011) (citation omitted); see 18 Pa.C.S.A. § 2502(c). Voluntary manslaughter is a killing without lawful justification when, at the time of the killing, the defendant "is acting under a sudden and intense passion resulting from serious provocation by … the individual killed." 18 Pa.C.S.A. § 2503(a). "It long has been clear that malice is an essential element of third-degree murder and is the distinguishing factor between murder and manslaughter." Commonwealth v. Smouse, 594 A.2d 666, 671 (Pa.Super. 1991).

Instantly, Appellant does not address the sufficiency of the Commonwealth's evidence of specific intent necessary to raise the degree of guilt to first-degree murder. Rather, Appellant contends the evidence supports an absence of malice, justifying only a conviction of voluntary manslaughter. Appellant's Brief at 40; see Commonwealth v. Fisher, 493 A.2d 719, 723 (Pa.Super. 1985) (citations omitted) (stating, "[v]oluntary manslaughter occurs where there is a specific intent to kill, but said intent contains no malice by reason of passion or provocation. Passion or provocation precludes malice, but has no effect on intent"). Appellant recounts the circumstances he deems support the conclusion the killing resulted from "the heat of Passion, " or "imperfect self-defense." Appellant's Brief at 41-44. Appellant concludes therefrom that "the Commonwealth failed to disprove beyond a reasonable doubt that the killing of [the victim] was not done in the heat of passion after sufficient provocation without a cooling off period, " or alternatively that "the Commonwealth failed to prove that [Appellant] did not believe that he was in danger of death himself."[10] Id. at 41, 45.

Relative to Appellant's assertion that he acted in the heat of passion, we note the following requirements to establish such a claim.

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. To reduce an intentional blow, stroke, or wounding resulting in death to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion without time to cool, placing the [defendant] beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting-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. Hutchinson, 25 A.3d 277, 314-315 (Pa. 2011) (internal quotation marks and citations omitted), cert. denied, Hutchinson v. Pennsylvania, 132 S.Ct. 2711 (2012). Further, such provocation must be by the victim. Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012), cert. denied Busanet v. Pennsylvania, 134 S.Ct. 178 (2013).

Appellant avers that the evidence at the degree-of-guilt hearing established that he was provoked as a result of months of texts and phone calls with Ashley, the victim, and the victim's estranged wife. Appellant's Brief at 41. Appellant avers he was "antagonized … over the fact that [Appellant's] children were in [the victim's] company and not with [Appellant]." Id. Appellant testified he learned information about the victim from the victim's estranged wife that led him to fear for his children's safety. Id. Appellant claimed that in his communications with the victim "the threats were two-sided." Id. at 44. Finally, Appellant contends he had no opportunity to "cool off." Id. at 45.

The trial court concluded, based on the totality of the credible evidence adduced at trial, that "[Appellant] did not kill the victim in the heat of passion." Trial Court Opinion, 2/12/13, at 12. Upon close review of the record, we conclude the trial court's findings are amply supported and its legal conclusions correct. Even if the communications from Ashley and the victim's wife could be viewed as provocative, they are immaterial to the issue of whether provocation exists to mitigate the intentional killing of the victim to voluntary manslaughter. To mitigate, the provocation must emanate from the victim. 18 Pa.C.S.A. § 2503(a)(1) (providing that serious provocation for the purposes of voluntary manslaughter must be by "the individual killed"); see also Commonwealth v. Rivers, 557 A.2d 5, 9-10 (Pa.Super. 1989), appeal denied, 567 A.2d 652 (Pa. 1989) (holding only provoking actions by victim leading directly to killing are relevant to provocation defense); Busanet, supra (holding evidence of heat of passion was not established from provocation from victim remote from the time of the killing).

Appellant initiated the threatening contacts with the victim who, while responding with some bravado, attempted to abate the contacts by reporting the issue to the police on more than one occasion. N.T., 8/1-3/12, at 206, 211. Appellant's general despondency over the breakup of his marriage cannot be construed as provocation or sudden passion. See Hutchinson, supra at 315 (holding that where "Appellant and the victim had been arguing shortly before the murder, that there were serious problems in their relationship, [and] that Appellant was jealous, … does not show that, at the time of the murder, Appellant was uncontrollably compelled by passion or that the victim had provoked him into such passion").

Finally, the evidence demonstrates that Appellant had ample time to cool down from any alleged passion. Appellant spoke with Officer Richard Nulty, of the Hampton Township Police Department, at around 2:00 a.m. the day of the killing. Sometime thereafter, Appellant proceeded to the victim's home and waited for victim until after 11:00 p.m. See Busanet, supra at 55-56 (holding where communication with the victim was removed in time from the killing and the appellant armed himself to seek out the victim, there was time for cool reflection and the killing was not the product of serious provocation).

Relative to Appellant's alternative contention that the evidence supported a determination of imperfect self-defense, the trial court opined as follows. "The [trial] court sitting as fact-finder, found [Appellant's] testimony to be self-serving and not credible." Trial Court Opinion, 2/12/13, at 13. The trial court ultimately determined that "the Commonwealth presented ample credible evidence to support [the trial] court's verdict that [Appellant] was guilty of First-Degree Murder and the evidence [Appellant] presented to mitigate his crime to voluntary manslaughter was not credible." Id. Our review of the entire record compels us to agree.

(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 (relating to general principles of justification), but his belief is unreasonable.

18 Pa.C.S.A. § 2503 (b).

"[T]he elements necessary to establish unreasonable belief voluntary manslaughter, which is sometimes loosely referred to as [']imperfect self-defense[']" require proof of "an unreasonable belief rather than a reasonable belief that deadly force was required to save the actor's life." Commonwealth v. Tilley, 528 Pa. 125, 141, 595 A.2d 575, 582 (1991). "All other principles of justification under 18 Pa.C.S. § 505 must [still be met in order to establish] unreasonable belief voluntary manslaughter." Id.

Section 505 sets forth the elements of self-defense:

§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the person.-The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
18 Pa.C.S.A. § 505(a).

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa.Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009).

Appellant asserted that he approached the driver's side of Ashley's vehicle[11] and spoke to her through the open window. N.T., 8/1-3/12, at 539. He claimed not to see the children in the back seat, despite leaning in to look. Id. After referring to the victim as a "psychopath" in his exchange with Ashley, Appellant claimed he looked toward the victim to "see if I got a response out of him." Id. at 540. Appellant claimed it was then he saw a gun pointed at him, "[N]ot like somebody point a gun at you but hanging on his – what I guess would be his left leg or in that area, down low with it pointed up." Id. He described his subsequent actions as follows.

I just immediately pulled my gun. Why I did what I did, I don't know, but I jumped in the vehicle, of all things. … My back went to Ashley, but I continued to go into the vehicle.
Physically. And I didn't stop, I kept going. So actually I went between the seats, between the driver's seat and the passenger's seat. My actual head and gun was in the back of the vehicle now and all I did – I was just like, oh, s-t, I'm going to die, and I lifted my hand. I remember lifting my hand.
… And I just pulled the trigger. I just remember looking at my gun and making sure – you know, I knew my bearings as best I could shooting down and to the right front of the truck.
As I came back up out of the truck, I saw a hole in his head, and I just freaked out.

Id. at 540-541. Appellant speculated that the gun he saw was the Smith and Wesson Ashley had removed from their home. Appellant's Brief at 11.

The trial court found Appellant's version incredible.

The [trial] court, sitting as fact-finder, found [Appellant's] testimony to be self-serving and not credible. [The trial court could] not contort [its] mind in a manner that lends any credibility to [Appellant's] purported state of contortion. [Appellant's] description of diving, twisting and falling before, amazingly, shooting the victim squarely in the back of the head is chimerical. Further, his actions prior to the killing belie his contention that he was waiting for the victim with any intent but to kill.

Trial Court Opinion, 2/12/13, at 13.[12]

In close, we conclude that Appellant has waived his challenge to the constitutionality of the death penalty statute for failure to raise, before the trial court, the specific grounds now asserted on appeal. To the extent that Appellant asserts the statutory scheme effectively coerced his plea to homicide generally in order to avoid the death penalty, his issue is waived for failure to challenge the voluntariness of his plea before the trial court. We further conclude that Appellant's challenge to the sufficiency of the evidence did not address the Commonwealth's evidence of specific intent, but did challenge the sufficiency of the trial court's determinations that Appellant failed to establish either basis for diminishing the presumption of malice to voluntary manslaughter, to wit, intense passion from serious provocation, or an unreasonable belief the killing was justified as self-defense. Our review of the record reveals that Appellant failed to establish either theory by a preponderance of the evidence. We conclude the trial courts findings and verdict at the degree-of-guilt hearing were supported by overwhelming evidence in the record. Accordingly, both of Appellant's issues on appeal afford him no relief.

Judgment of sentence affirmed.

Judgment Entered.

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