The opinion
J-S48005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK BOOKER
Appellant No. 862 WDA 2014
Appeal from the Judgment of Sentence November 26, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008338-2012
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 26, 2015
Appellant, Frank Booker, appeals from the judgment of sentence
entered after a jury convicted him of, among others, third degree murder of
Calvonne Rollins. Booker argues that the trial court erred in failing to
instruct the jury on the issue of self-defense. After careful review, conclude
that Booker’s challenges to the trial court’s jury instructions are waived and
affirm the judgment of sentence.
The trial court summarized the evidence presented at trial as follows.
On May 11, 2012, [Rollins] picked up his girlfriend, Tamira
Scheuermann, at work and drove to the Get Go gas station
located in Penn Hills where they were to meet some other
people. Rollins was driving and Scheuermann was the front seat
passenger and the one-year-old son that she had with Rollins
was in a car seat in the middle of the back seat. At the Get Go
station they met up with James Ingram whom they knew and
Frank Booker, whom they had never met before. Ingram asked
Rollins to give him a ride back to his house so that he could get
J-S48005-15
his phone charger and he got into Rollins’ vehicle. Since they
did not know Booker, they left him at the Get Go gas station.
Rollins drove Ingram to his house and they agreed to meet a
little while later so all of them could smoke some marijuana.
Later that day they met up with Gerald Brown and they smoked
the marijuana. Rollins decided to go back to the Get Go station
and was travelling along Coal Hollow Road when they ran into
Ingram who was leaving his girlfriend’s house who asked them
to give Booker a ride and he would pay for it. They met up with
Booker a short time later and he agreed to pay for the ride to go
to Blackadore Street. Booker was seated directly behind Rollins
in the left rear passenger seat. When they approached the
intersection of Blackadore and Ravina, Rollins stopped the car.
Scheuermann, who was on the phone, thought that Booker was
going to pay Rollins for the jitney ride since he was fiddling with
something inside of his hoodie. Booker then pulled a silver gun
and put it to Rollins head and told him to “give it up.” When
Brown saw the gun, he opened the right rear passenger door
and ran from the car. Rollins attempted to swat the gun away
from Booker and Scheuermann grabbed his wrist in an effort to
get it away from Booker. Rollins then attempted to push Booker
toward the open right rear door when Booker started to fire
anywhere between five and six shots at Rollins. Booker then
fled from the scene. The Escalade started to drift back down
Blackadore until it hit another car and came to rest. Rollins then
opened the driver’s door and rolled out of the car and was lying
on the ground. Scheuermann called 911 and requested the
police and paramedics who arrived within ten minutes of that
call. It is obvious that Rollins was in critical condition as a result
of the life-threatening wounds that he received. When he was
transported by the paramedics to Presbyterian-University
Hospital, he had no pulse and was subsequently declared dead
by the physicians who initially treated him at the hospital. No
weapon was found on Rollins by the paramedics or the
emergency room personnel who attempted to treat Rollins.
In processing the Escalade, two bullet fragments were found,
one in the driver’s door and the other one in the driver’s
footwell. It was determined that the bullet fragments were the
same caliber and although they had similar markings, the
criminalist who examined these fragments was unable to
determine if they had been fired from the same weapon because
one of the fragments was so small.
-2-
J-S48005-15
Brown and Scheuermann were interviewed that evening and told
the Allegheny County Police that Booker was the shooter. The
police prepared photo arrays for both Brown and Scheuermann
and both of these individuals identified Booker as the individual
who shot Rollins. An arrest warrant was issued for Booker and
several weeks later, he was arrested in Williamsport,
Pennsylvania.
Trial Court Opinion, 3/2/15, at 3-5.
On appeal, Booker seeks to raise two challenges to the jury
instructions provided by the trial court.1 Both issues are premised upon
Booker’s theory of the case that Rollins and Scheuermann attempted to rob
him in the Escalade, and that he shot Rollins believing that his life was in
danger. However, prior to addressing this issue, we must determine
whether it has been properly preserved.
“No portions of the charge or 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(B). Furthermore, the Supreme
Court of Pennsylvania has held that “the mere submission and subsequent
denial of proposed points for charge that are … omitted from the instructions
____________________________________________
1
We note that counsel for Booker failed, in contravention of Pa.R.A.P.
2111(a), to include a separate section in his appellate brief setting forth a
statement of questions involved. Since counsel provided detailed
statements of the issues in his statement of the scope and standard of
review, and provides a thorough argument section, this failure does not
impact our ability to review Booker’s claims. We highlight this error merely
to alert counsel to this technical non-compliance with the Rules of Appellate
Procedure.
-3-
J-S48005-15
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).
Even if an appellant objects to an instruction during the charging conference,
this Court has found the issue waived if there is no objection after the actual
instructions have been given. See Commonwealth v. Parker, 104 A.3d
17, 29 (Pa. Super. 2014).
In the instant matter, defense counsel asked the trial court “[a]re you
going to charge on self-defense at all?” N.T., Trial, 8/20-22/13, at 251.
After the trial court indicated that it would not, defense counsel argued that
self-defense was an issue for the jury to decide. See id., at 251-252. After
hearing counsel’s argument, the trial court again declined to instruct the jury
on self-defense, to which defense counsel responded, “[o]kay, then if you
would give me a few minutes, I need to take that information out of my
closing.” Id., at 252. After the trial court read its instruction to the jury, it
asked for any additions or corrections from the parties. Defense counsel
responded, “[n]othing on behalf of the defense, Your Honor.” Id., at 295.
Thus, while defense counsel requested that the trial court instruct the
jury on the issue of self-defense, she did not object after the actual
instruction did not include this issue. Under Pressley and Parker, this
failure results in waiver of Booker’s challenges to the jury instructions.
Judgment of sentence affirmed. Jurisdiction relinquished.
-4-
J-S48005-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2015
-5-