a defendant must “establish that the trial evidence would ‘reasonably support’ a verdict based on the desired charge and may not claim entitlement to an instruction that has no basis in the evidence presented during trial.”
How later courts described this case
- a defendant must “establish that the trial evidence would ‘reasonably support’ a verdict based on the desired charge and may not claim entitlement to an instruction that has no basis in the evidence presented during trial.”
- where evidence does not support finding of manslaughter, court need not submit issue to jury
- "a trial court should not instruct a jury on legal principles which bear no relationship to the evidence presented at trial"
- wife's racial slurs to husband emphasized by sticking her finger at his shoulder was insufficient provocation
Written by the judges who cited it.
The opinion
J-S30015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
GILBERT NEWTON, III
Appellant No. 206 EDA 2022
Appeal from the Judgment of Sentence Entered September 29, 2021
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0004802-2020
BEFORE: STABILE, J., MCCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 9, 2022
Appellant Gilbert Newton, III appeals from the September 29, 2021
judgment of sentence entered in the Court of Common Pleas of Montgomery
County (“trial court”), following his jury convictions for first-degree murder
and possession of an instrument of crime.1 Upon review, we affirm.
In connection with the stabbing death of his 19-year-old ex-girlfriend,
Appellant was charged with the foregoing crimes. The case eventually
proceeded to a multi-day jury trial, at which both the Commonwealth and
Appellant presented witness testimony. The trial court detailed the evidence
adduced at trial as follows:
First to testify was Officer Ryan Hasara of the Abington Township
Police Department. On July 27, 2020 at about 8:14 a.m., Officer
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
J-S30015-22
Hasara was dispatched to the Meadowbrook Train Station. When
he arrived at the overflow lot of the train station, the officer
observed a blue RAV4, and a female laying to the left of the vehicle
on the ground. Officer Hasara knew from all of the blood loss and
trauma to the body that the victim could not be revived. He ran
the vehicle’s registration and determined that it belonged to
Morgan McCaffery. Both the front and back driver’s side doors
were open, and inside the vehicle there was a large, sharp, kitchen
knife on the front passenger floorboard.
Juan Jose Vasquez was next to testify. On July 27, 2020, he was
driving his work truck through the train station parking lot and
saw a man on top of a woman, kneeling. Mr. Vasquez stopped
and when he exited his truck, the man ran to a white Jeep, and
drove off quickly. Mr. Vasquez got about ten feet away from the
woman who was laying there, and all he could see was that blood
was coming out of her forehead. He told a driver of a passing
trash truck to call police.
Carnell Kemp, a worker for the Abington Township Refuse
Department, testified that on July 27, 2020, he used the
Meadowbrook Train Station at Lindsay Lane as a turn-around in
his trash pick-up route. When he was there, a man flagged him
down, and he pulled over. When he looked up, he saw a
motionless person on the ground. Mr. Kemp called his supervisor,
who in turn called 9-1-1. He remained on the scene until police
arrived.
Sergeant David Wiley of the Abington Township Police
Department, who was a patrolman at the time of the incident,
testified that on July 27, 2020, he responded to the Meadowbrook
Train Station at about 8:14 a.m. When he arrived on-scene there
was a female, who was later identified as Morgan McCaffery,
laying on her back with her arms and legs extended. She was
covered in blood, and had several traumatic wounds to her face,
arms, and torso. He checked her status and there were no signs
of life. Sergeant Wiley spoke with Mr. Vasquez who informed him
of what he had seen, namely that a tall, skinny, male was standing
overtop the victim, and that when he got out of his truck, the male
ran to a white Jeep and left the scene at a high rate of speed. As
the officer was gathering this information, he was broadcasting it
over the radio to the officers en route to the scene. Sergeant
Wiley assisted Officer Hasara and located blood spots on the
gravel on the driver’s side, and then to the right of the vehicle he
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noticed skid marks in the gravel. He remained on-scene while the
Abington Township detectives and Montgomery County detectives
processed the scene.
Dr. Gregory McDonald, the chief deputy coroner for Montgomery
County, testified. On July 27, 2020, Dr. Ian Hood performed an
autopsy on the victim, at which time he took notes and
photographs and collected evidence. Dr. McDonald performed an
independent review of the file. He testified that the victim
sustained multiple stab and slash wounds to multiple areas of her
body, including the face, neck, chest, back abdomen, and her
arms; and the doctor concluded that she died from these wounds,
and the manner of death he determined to be homicide. The
victim had about 23 stab/slash wounds to her face and scalp, 14
wounds to her neck, four stab wounds to her chest, a single stab
wound to her abdomen, three stab wounds to her back, and seven
stab wounds to her arms. Dr. McDonald opined that there were
several wounds to the neck, involving the carotid artery that could
have been fatal. The doctor also identified four stab wounds to
the chest, and one of which was fatal in and of itself. That stab
wound went through the right side of the victim’s heart. Death
would have ensued within minutes, with just that injury alone.
The victim also had defensive injuries to her arms and hands. The
doctor opined that given all of the victim’s injuries, the victim
could have only survived several minutes at most from the initial
attack.
Michele Cordalis who worked at the police administration building
as a 9-1-1 dispatcher testified that on July 27, 2020, a call came
in at 10:01 a.m., and that police responded to 8507 Ferndale
Street.
Officer Thomas Purcell of the Philadelphia Police Department
responded to that location within two minutes, along with Officer
Ernest Griffin. When they arrived they went to the door of that
residence, they encountered a female. She told them her son was
inside covered with blood and was acting strangely. The officer
spoke with Appellant, and asked him if he was okay, to which
Appellant told the officer that he had just stabbed his girlfriend
multiple times and that he d[id not] want to be in this world
anymore. Officer Griffin handcuffed Appellant, and he was placed
in the patrol wagon to be transported to a hospital. Officer Purcell
saw Appellant’s white Jeep. He observed blood on the driver’s
side door.
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Detective Philip Geliebter of the Abington Township Police
Department was called to assist with the investigation into the
homicide. On July 27, 2020, he responded to Abington hospital
at about 10:45 a.m., where Appellant was taken. Detective
Geliebter secured Appellant’s clothing as evidence, and took
photographs of his injuries.
Lieutenant Edward Schikel, a detective with the Montgomery
County Detective Bureau, was accepted as an expert in forensic
crime scene investigation and methodology pertaining to evidence
recovery, preservation, and analysis. At the time of July 27, 2020,
he was a detective in the forensic investigation unit and was the
primary detective assigned to process the crime scene at the
Meadowbrook Train Station with a team of detectives. He
responded to the scene at 9:30 a.m. At the scene, near the
victim’s vehicle, he identified a pair of sneakers, a pool of blood
about one foot by three feet, a bent serrated knife blade about
two and three-quarter inch, a broken knife blade, and blood
extending from the blood pool to 16 to 20 feet to the victim’s body.
The victim’s RAV4 was still running when Lieutenant Schikel
arrived at the scene. The driver’s door was completely open and
the driver’s side rear door was somewhat open. The detective
found a knife inside the RAV4 vehicle. It was a Ginsu style knife
with an eight inch blade, and it was bloodstained. A knife handle
with a small portion of the blade attached was found underneath
the victim’s body. The knife handle with the partial blade looked
to be from the same knife as the broken blade found in the pool
of blood.
Detective Terrance Lewis of the Montgomery County Detective
Bureau—Forensic Services Unit testified that on July 27, 2020, he
was assisting Lieutenant Schikel, and after he assisted at the
crime scene, he went to 8507 Ferndale Street to photograph and
recover any evidence. Inside the home he recovered a knife
block, manufactured by Ginsu. Detective Lewis noted that several
knives from the knife block were missing, there were empty slots
when he found it. The knives from the scene are also labeled with
“Ginsu.” The detective processed the exterior of Appellant’s white
Jeep for evidence, and found several locations of blood stains. He
also processed the interior Jeep pursuant to a search warrant,
where he also found several locations of blood stains. Further,
Detective Lewis processed the victim’s vehicle. There was blood
on the front passenger interior door, front passenger seat, by the
glove compartment, handle area of the front passenger door.
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Detective William Mitchell of the Montgomery County Detective
Bureau, testified as an expert in the field of historical call detail
record analysis. The victim’s phone was recovered from her
vehicle by police. Appellant’s cell phone was recovered from his
person at the hospital. Detective Mitchell requested subscriber
information the victim’s phone and Appellant’s phone from
February 1, 2020 through July 28, 2020. He also downloaded the
phones. He further issued search warrants for the social media
companies, Facebook, Instagram, and Snapchat that were
relevant to the investigation. Detective Mitchell read out some of
these texts and social media app messages indicating that as of
June 19, 2020, the victim wanted to end the relationship, and that
as of June 20, 2020 they were no longer together as a couple.
However, the texting and messaging through the various apps
continued in the following days. These messages revealed that
their relationship at that point and at the time prior to the break-
up was tumultuous and that there was a lot of arguing and name
calling between them. They further showed that Appellant was
having a difficult time accepting the break up. In particular, on
June 20, 2020, starting at about 11:43 p.m., there was a volley
of text messages in which Appellant told the victim, “Okay. Well,
I’m not your pet, so fuck off. I hope you honestly die at this point.
Like I just want to stab you in the neck continuously. I might
actually to be honest. Have your head on a swivel constantly.”
Starting on July 5, 2020 at 4:16 a.m. and continuing through the
following day, Appellant texted his mother in part as follows:
[Appellant]: Did she send them to you? I just won’t
do it. I wanna stab this girl in the fucking neck, dude.
Mother: Gil.
[Appellant]: If she doesn’t come back to me, mark my
words, I’m going to do everything in my power to shit
on her life.
....
[Appellant]: Mom, please. I’m so down. Stop talking
to dad about it. She isn’t going to unblock me. I think
she’s done for real. That can’t happen.
....
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[Appellant]: Okay. That’s fine. I’m hurt. Just let me
be for a few days. Mom, you better text her and tell
her to see me face to face so I know it’s for real. Or
there’s gonna be problems. I’m not doing this.
Mother: Gil, I’ll text her. But if she says it’s over, you
need to move on.
[Appellant]: Okay. That’s fine. Say all he wants to
do is either text him or see him face to face and say
it’s for real. I’m never giving anyone a chance.
Mother: I’ll tell her you want to talk to her and won’t
fight. But if you start fighting with her and acting like
an asshole, she will just block you again.
[Appellant]: Okay. That’s fine. I haven’t wanted to
fight. I just want her back. All I want. If she can’t
do that, then I’ll never talk to her again. That simple.
On July 6, 2020, the text conversation continues:
[Appellant]: Because I want to talk to her. Say he will
text you when you get home. Just unblock him. She’s
got an attitude like it’s really done. I’m really gonna
fucking kill her dude. I will stab her in the neck 57
times.
Appellant’s mother replied, “See. Now you're already getting
aggressive.”
[Appellant]: I won’t act like that when we text. But
just know if she does this for real, then shows up to
our house one day, I’m shoving her face-first into the
cement. Wasted a whole year. I could have been
doing some other shit.
Following that exchange, there are several phone calls from
Appellant’s mother’s phone to the victim’s phone, all of which went
unanswered.
On July 8, 2020, the victim initiated contact with Appellant. In
that text conversation, the victim states that she wants to return
some of his possessions to him. He agrees that he wants them
back, and proposes Sunday to meet up. On July 13, 2020,
Appellant and the victim had a text conversation, in part where
they are arranging for the victim to drop the items she had off at
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his house later that day, which Snapchat location information
confirmed that the victim did in fact stop by his house. There was
additional text conversation on July 17, 2020.
A day before the murder on July 26, 2020, there was a series of
communications, in which, in part, at 9:25 p.m., Appellant sent a
photograph to his mother of the victim with her new boyfriend. A
minute later, Appellant texted the victim about her having a new
boyfriend. Appellant was upset that she had moved on. At 9:26
p.m. Then the following conversation ensued:
[Appellant]: When can we meet in person?
Morgan: When do you want to?
[Appellant]: Up to you. So you have no desire of even
thinking about getting back with me? Tomorrow I’m
going to the field near your house.
Morgan: Okay. What time?
[Appellant]: Can I ask a question?
Morgan: What?
[Appellant]: Did you have sex with him? Just be
honest. And whatever time you are available.
Morgan: None of your business.
[Appellant]: So you did. That’s disgusting, Morgan.
Morgan: Didn’t say that.
[Appellant]: We will talk tomorrow. What time?
Morgan: 7:30?
[Appellant]: In the morning?
Morgan: Yeah.
[Appellant]: How about 10:00. So did you have sex
with him? Just be honest with me. I’ll be there at ten
o’clock.
Morgan: I’ll be there at 7:30. Take it or leave it.
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[Appellant]: Okay. Can you just answer the question.
Morgan: What does that matter.
[Appellant]: Because it does. Can you just tell me the
truth.
Morgan: Then there’s no need to meet tomorrow.
[Appellant]: Why? I’ll be there at 7:30.
Morgan: How the fuck did you find my VSCO?
[Appellant]: I been knew it. I was on it. I was really
working on myself for you, too. I guess that’s out of
the picture now.
Morgan: You should have been working on yourself for
yourself, not for me. It’s not healthy at all.
[Appellant]: You in love with this guy?
Morgan: No.
[Appellant]: Do you love me?
Morgan: I still care about you and you will always
always have a place in my heart.
[Appellant]: So you would never be able to have me
as your lover again? I really don’t get it.
[Appellant]: I will be there at 7:30.
[Appellant]: Answer the question.
Morgan: Nevermind [(sic)] about tomorrow. You and
your mother need to stay the fuck out of my life. You
need to never contact me ever again. I’m blocking
you.
During this time in the text conversation, there was a Facebook
message from Appellant’s mother to the victim’s Facebook page
via Facebook messenger.
[Appellant]: No. I want to meet tomorrow. Relax. I’ll
be there at 7:30.
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Morgan: No, I’m done. You and your mother need to
leave me the fuck alone.
[Appellant]: Take my mom off the picture. I’ll see you
tomorrow at 7:30.
Morgan: No. Fuck you. Leave me alone.
[Appellant]: I'll be there at 7:30, Morgan. Relax.
Morgan: No. Fuck off.
[Appellant]: She did this, not me. I’ll be there at 7:30.
Morgan: No. Fuck off, dude. You both can leave me
the fuck alone and stay the fuck out of my life. I have
been so fucking happy with my life. Leave me alone.
[Appellant]: I didn’t tell her to text you, I really didn’t.
I’ll be there at 7:30.
Morgan: Even in our fucking relationship, you told her
everything. You have her get the fuck involved. You
all leave to leave me alone and stay the fuck out of
my business.
[Appellant]: Just relax. You literally want to come talk
to me about this. Cut my mom out of this. She is
crazy.
Morgan: No, I’m done, dude. I wanted to talk in
person because it was respectful, but now I don’t care.
[Appellant]: Can you tell me what we would’ve talked
about, how you found someone better? I want to talk
in person one last time out of respect without my mom
involved. The least you can do.
Morgan: No. Your mom ruined that, just like she
ruined your chance.
[Appellant]: I know she did.
Morgan: Have a nice one, Gil. I wish you the best,
but you gotta leave me the fuck alone.
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[Appellant]: I want to see you tomorrow in person one
last time to talk. Just please do that for me.
Morgan: No.
[Appellant]: Why?
Morgan: You mom ruined that.
[Appellant]: It would be just me there, not her. You
weren’t coming back anyway. I just want to talk. So
if she wasn’t harassing you, you probably would have
come back? Just meet me there at 7:30.
[Appellant]: I had one last thing to give you anyway.
Is that okay? The least you can do, Morgan.
Morgan: No. I’m a piece of shit. I’m a coward. I’m
disgusting. I’m good, but thanks.
[Appellant]: I just flipped out on my mom. I told her
I will never forgive her. So get my mom out of it. It’s
just between me and you. I’ll see you at 7:30.
Morgan: No. I don’t care. Your mom involved herself
too much at this point pint. Sorry, Gil, but you I’m
not meeting you tomorrow.
[Appellant]: I don’t think of you as any of that. I’ll
drive to you.
Morgan: No. Please don’t.
[Appellant]: Morgan, seriously.
Morgan: What. Your mom is beyond disrespectful.
She crossed the line too many times.
[Appellant]: That just shows you don’t care about me
because I gave you a whole year. Get her out of the
picture. I just want to talk to you. I don’t claim my
mom.
Morgan: How can I get her out of the picture? She
fucking involves herself and you involved her.
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J-S30015-22
[Appellant]: I didn’t. I just told her because she kept
asking me how it was going because she saw how hurt
I was. Just get her out of the picture and meet me
tomorrow.
[Appellant]: I gave you everything I got. Least you
can do is see me tomorrow.
Morgan: Nah, sorry. You and her kinda put her in the
picture.
[Appellant]: You really like this kid more than me?
What were you saying to him about me today? That
was the kid you were FaceTime though. I’ll see you
tomorrow at 7:30 at the filed or your house.
Morgan: I never FaceTime some kid though. I told
you that.
[Appellant]: So you have more feelings for this kid
than me?
Morgan: Met this kid after we were done.
[Appellant]: He makes you happier? We meeting
tomorrow or no? I want to talk to you in person.
Morgan: He makes me happy, yes.
[Appellant]: It’s the mature thing to do.
Morgan: Fine, Gil.
[Appellant]: Okay. Happier than me? Nevermind
[(sic)]. We will talk about it tomorrow at 7:30. I’ll
see you there.
Morgan: You gonna tell your mom everything, too?
[Appellant]: No, I won’t. She just asked how it was
going. I said she found someone new. That’s all.
That’s who I went to when I was in pain, but not
anymore.
Morgan: Probably will, cracking the fuck up.
[Appellant]: I won’t.
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J-S30015-22
Morgan: Yeah. Whatever. Just saying she makes
herself look like this immature mom, so.
[Appellant]: She doesn’t need to know anything. She
knows you will never come back to me. It doesn’t
matter. I told her I’m done with her.
Morgan: I always liked her and respected her. I don’t
know why she thinks it’s okay to disrespect me.
[Appellant]: She ruined the best thing that happened
to me. So she ruined us? Like even if there was some
way for yous to get along.
Morgan: I’m very much done.
[Appellant]: Nevermind [(sic)]. We will talk about it
tomorrow. That’s fine.
On July 27, 2020, the day of the murder, there was additional
phone activity between Appellant and the victim. Starting at 6:52
a.m., the victim texted Appellant but could not get ahold of him.
At 7:34 a.m., Appellant texted her stating, “I’m sorry. I fell
asleep. I’ll be there soon. I’m coming now. Please.”
Morgan: You have until 45. Then I’m leaving.
[Appellant]: Church parking lot.
Morgan: At the track.
[Appellant]: Nah, church more private. This is in
person. In person.
Morgan: Fine. You have nine minutes. Four minutes.
[Appellant]: Red light. Nothing I can do. I’m almost
there. Relax. Just please stay. I already halfway
there. Going under the bridge now.
Morgan sent another text stating that there is another car at the
church location. [Appellant] suggested going to a more private
place, and then they decided to go to the train parking lot.
According to cell site location, Morgan was at the train station at
7:55 a.m. The last activity from the victim’s phone was at 8:06
a.m., when she called her mother, but the call did not go through.
The 9-1-1 call occurred at 8: 12 a.m.
- 12 -
J-S30015-22
At 8:51 a.m., Appellant texted his mother, “Mom, I killed Morgan
about an hour ago.” Appellant explained, “I constantly had sick
thoughts in my head. I couldn’t do it anymore. I love you guys
so much. I had the biggest heart, no brains. That was the
problem. You guys couldn’t do anything else.” His mother was in
disbelief, to which Appellant responded, “I’m sick in the head.
There was no stopping me.” At 9;06 a.m., Appellant texted,
“Mom, I stabbed her repeatedly.”
On cross-examination, Detective Mitchell acknowledged that on
July 17, 2020, Appellant had sent several text messages
expressing suicidal thoughts. After Detective Mitchell’s testimony,
the Commonwealth rested its case.
The defense presented numerous character witnesses, including,
Richard McCollick, Harry Dumas, David Hoftiezer, Wilton Benson,
Charles McCormick, Gilbert Newtwon, Jr. (Appellant’s father), and
Judy Newton.
Next, Appellant testified on his own behalf. He testified that he
wanted to meet up with the victim because he wanted to see if
she really cared about him, and to find out whether she was
sleeping with another man. He explained that if she was sleeping
with another man he was going to kill himself, in front of her. He
wanted to see if she would intervene as a test of whether she
cared. It was his plan to stab himself in the neck as many times
as he could. Appellant testified that he brought two kitchen knives
with him, and that he just grabbed them right before he left his
house. He put them in the pouch of his hoodie. When Appellant
and the victim both arrived at the train station, he got into her
car, and they started to talk. Appellant admitted that at that time
he loved the victim, and that he was upset. The victim had a bag
with items belonging to Appellant, so she exited the front driver’s
side and opened the rear driver’s side door to retrieve the bag.
That is when Appellant pulled the knives out, and placed them on
both sides of his legs. Appellant asked her if she with the other
guy and Appellant explained the victim’s response as follows:
She said—she said she was definitely sleeping with
him and she was definitely trying to start something
new with him, and that she kind of—you know, she
kind of chuckled at me because, once that was said, I
asked her, like why? Like why is this happening? I
thought we were supposed to be together forever and
that we were both—we both came into the relationship
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J-S30015-22
as virgins because it was just so—it’s just so hard to
find someone nowadays that hasn’t been dating
around. So it was just like—it felt like it was meant to
be and we both really cared for each other. And I
just—she said that it was hilarious that I thought that
that was the truth, that we were both virgins for each
other, and that she had lots of sex before she dated
me and that she was going to have a lot of sex after
she was done with me.
Appellant testified that this made him really upset and that the
anger started to kick in after hearing this. He called the victim a
fucking whore. The victim turned and smacked and spit on him.
Appellant explained the effect this had on him, testifying, “And it
just got to the point where I just—as soon as she slapped me and
spit on me, I just—it went through my mind like—like she must
really not care about me. And I just—I got so upset that I grabbed
the knife and I just starting stabbing her.” After Appellant’s cross-
examination, the defense rested. The defense concluded its
evidence.
After the jury was excused, defense counsel asserted that the jury
should be instructed on voluntary manslaughter. The
Commonwealth rejected this argument. This court denied the
request and provided reasons for the denial on the record.
At the start of the third day of trial, defense counsel requested
that this court reconsider its ruling on the voluntary manslaughter
jury instruction. . . . This court having reviewed these cases,
reaffirmed its ruling, and provided additional reasons for the
denial on the record.
At the conclusion of the trial, the jury returned a verdict of guilty
of first-degree murder and possession of an instrument of crime.
Appellant proceeded immediately to a sentencing hearing.
Appellant was sentenced to a life term of imprisonment. On
October 6, 2021, a timely post-sentence motion was filed, and
denied. A timely direct appeal was not filed. On January 4, 2022,
a petition seeking post-conviction relief pursuant to the Post-
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, was filed
requesting the [nunc pro tunc] reinstatement of Appellant’s direct
appeal rights, which was granted on January 6, 2022.
Accordingly, a notice of appeal was filed that same day.
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Trial Court Opinion, 3/21/22, at 1-20 (record citations, quotation marks and
unnecessary capitalizations omitted). Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant argues only that the trial court erred “in denying
[his] request for a voluntary manslaughter—heat of passion jury
instruction[.]” Appellant’s Brief at 3.
With regard to Appellant’s challenge to the denial of jury instructions,
we initially note:
Our standard of review in regard to a trial court’s decisions on jury
instructions is well-settled: “[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.
Galvin, 603 Pa. 625, 651, 985 A.2d 783, [798-99] (2009).
Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018),
appeal denied, 217 A.3d 180 (Pa. 2019). Further, “[t]the trial court is not
required to give every charge that is requested by the parties and its refusal
to give a requested charge does not require reversal unless the Appellant was
prejudiced by that refusal.” Commonwealth v. Sandusky, 77 A.3d 663,
667 (Pa. Super. 2013) (quoting Commonwealth v. Thomas, 904 A.2d 964,
970 (Pa. Super. 2006) (citation omitted)).
A perpetrator may commit voluntary manslaughter if he kills another
while, inter alia, “acting under a sudden and intense passion resulting from
serious provocation by” the victim. 18 Pa.C.S.A § 2503(a)(1). Thus,
voluntary manslaughter contemplates an intentional killing wherein the
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defendant harbors a specific intent to kill. See Commonwealth v. Patton,
936 A.2d 1170, 1179 (Pa. Super. 2008). A jury instruction for voluntary
manslaughter concerning “heat of passion” is appropriate where the evidence
suggests “that, at the time of the killing, [a]ppellant acted under a sudden
and intense passion resulting from serious provocation by the victim.”
Commonwealth v. Sanchez, 82 A.3d 943, 979 (Pa. 2013) (citation omitted).
“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.” Id. at 980 (citation
and internal quotation marks omitted).
Here, after careful review of the record, and the relevant case law, we
conclude that the trial court accurately and thoroughly addressed the merits
of Appellant’s claim. See Trial Court Opinion, 3/21/22, at 20-28. The
evidence in this case revealed that, prior to stabbing the victim to death,
Appellant was not shy about his desire to kill the victim or how he would do
it. He texted the victim: “I hope you honestly die at this point. Like I just
want to stab you in the neck continuously. I might actually to be honest.”
N.T., Trial, 9/28/21, at 61. He also texted his mother, stating “I wanna stab
this girl in the fucking neck, dude.” Id. at 76. Later, Appellant elaborated:
“I’m really gonna fucking kill her dude. I will stab her in the neck 57 times.”
Id. at 80. Indeed, the night before the murder, Appellant texted his mother
that the victim “better come back or I’ll cut her head off.” Id. at 94.
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J-S30015-22
The record reveals that, after persistent efforts, Appellant finally
persuaded the victim to meet him one last time. On his way out the door, he
grabbed two knives. Upon learning that there were people at the first location,
Appellant asked the victim to go to another location that was more private.
Once there, Appellant claimed that he called the victim a whore. According to
Appellant, she slapped and spat on him. Appellant, in turn, stabbed her more
than thirty times, including fourteen stab wounds to the neck. He explained:
“as soon as she slapped me and spit on me, I just—it went through my mind
like—like she must really not care about me. And I just—I got so upset that
I grabbed the knife and I just started stabbing her.” Id. at 158. As the
Commonwealth keenly points out, Appellant was not provoked by the victim
slapping and spitting on him. Commonwealth’s Brief at 16. Rather, “it was
his realization that she was really moving on” that made him stab the victim.
Id.
Moreover, about forty minutes after the murder, Appellant texted his
mother: “I constantly had sick thoughts in my head. I couldn’t do it
anymore.” N.T., Trial, 9/28/21, at 115 (emphasis added). He reasoned: “I’m
really sick in the head. I just held it in for so long.” Id. Appellant later added:
“I’m sick in the head. There was no stopping me.” Id. at 116.
Based upon our review of the evidence presented in this case, we cannot
conclude that the trial court abused its discretion in denying a voluntary
manslaughter instruction. Appellant expressed his desire to kill the victim in
text messages sent before and after the murder. Thus, he was not someone
- 17 -
J-S30015-22
who was acting under a sudden and intense passion resulting from serious
provocation by the victim. See Commonwealth v. Carter, 466 A.2d 1328,
1332-33 (Pa. 1983) (a defendant must “establish that the trial evidence would
‘reasonably support’ a verdict based on the desired charge and may not claim
entitlement to an instruction that has no basis in the evidence presented
during trial.”).
Insofar as Appellant relies on Commonwealth v. Harris, 372 A.2d 757
(Pa. 1977) and Commonwealth v. Voytko, 503 A.2d 20 (Pa. Super. 1986)
to compel a different outcome, such reliance is misplaced because the case
sub judice is distinguishable. In Harris, our Supreme Court held that the trial
court erred in denying a voluntary manslaughter instruction because there
was evidence which supported a jury finding that the defendant killed the
victim in response to provocation. See Harris, 372 A.2d at 758-59. The
defendant had established that the victim struck him in the head with a cane
immediately following a failed drug purchase. The defendant then drew a
knife he always carried with him and stabbed the victim several times. If
accepted as true by the jury, these circumstances would show that the
defendant was provoked by the victim before stabbing him, and that he did
so without a cooling-off period. A voluntary manslaughter instruction was,
therefore, warranted. See id.
Here, in contrast to Harris, Appellant made a decision to bring two
knives to his early morning meeting with the victim on July 27, 2021. Further,
- 18 -
J-S30015-22
unlike the defendant in Harris, Appellant desired to kill the victim for some
time prior to the last meeting, as demonstrated by the evidence herein.
In Voytko, this Court held that the jury received an inadequate
instruction on voluntary manslaughter because the trial court did not explain
how a serious provocation may be based on “the cumulative effect of a series
of related events.” Voytko, 503 A.2d at 23. There, the defendant had
confronted his spouse as she arrived at her parents’ home, having been driven
there by the victim, her paramour. The defendant became enraged, started
screaming, and then fatally shot the victim in the head. Prior to the shooting,
the defendant had “found his wife in an act of adultery with [the victim], had
physically fought with [the victim], had argued with his wife, had been
deserted by his wife, and finally, had found her in [the victim’s] company,
returning from a date, at 5:00 a.m.” Id. at 23. A new trial was mandated
because the “trial court’s instructions did not at any time or in any manner tell
the jury” it could consider whether all of those circumstances could have
satisfied the serious provocation element of voluntary manslaughter. Id.
Unlike the defendant in Voytko, Appellant never caught the victim
cheating on him, and he never observed her with her new boyfriend. The
victim here ended her relationship with Appellant after less than a year, and
- 19 -
J-S30015-22
then Appellant repeatedly asked her for an in-person meeting while expressing
to others, including the victim, that he wanted to stab her in the neck. 2
In sum, we conclude that the trial court did not abuse its discretion in
denying Appellant’s request for a voluntary manslaughter instruction because
the evidence of record simply did not warrant one. Accordingly, we affirm
Appellant’s September 29, 2021 judgment of sentence. We further direct that
a copy of the trial court’s March 21, 2022 Rule 1925(a) opinion be attached to
any future filings in this case.
Judgment of sentence affirmed.3
____________________________________________
2 The Commonwealth points out that, unlike the defendants in Harris and
Voytko, Appellant’s attack on the victim was vicious.
Despite opportunities for him to give [the victim] a chance to
survive, he did everything in his power to ensure she would not.
After [Appellant] began stabbing her, she managed to get out of
the vehicle. [Appellant] pursued her, stabbed her in the back as
she tried to escape, and stabbed her repeatedly as he kneeled
over her. There was no evidence that [Appellant] was seriously
provoked such that he was incapable of cool reflection. At most,
assuming [Appellant] testified truthfully, [the victim] slapped him
and spit on him after he called her a whore.
Commonwealth’s Brief at 18. Appellant only stopped stabbing her when a
passerby showed up.
3 Judge McCaffery is not related to the victim, Morgan McCaffery, in this case.
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J-S30015-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2022
- 21 -
Circulated 11/22/2022 11:46 AM
OPINION
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA: CP-46-CR-0004802-2020
V.
GILBERT NEWTON, III 206 EDA 2022
1925(a) OPINION
CARPENTER J. MARCH 21, 2022
INTRODUCTION
Appellant, Gilbert Newton, III, appeals from the judgment of
sentence entered on September 29, 2021, following his conviction of first-
degree murder and possession of an instrument of crime. A life term of
imprisonment was imposed.
Appellant's convictions arose out of the July 27, 2020, stabbing
d eath of his 19 year-old ex-girlfriend, Morgan McCaffery, at the Meadowbrook
Train Station in Abington Township, Montgomery County. On that date,
Appellant met the victim there armed with two Ginsu kitchen knives. The
victim was stabbed over 30 times, including 14 stab wounds to her neck and
four stab wounds to her chest. Appellant fled the scene and when the police
arrived they found the victim's lifeless body.
At trial, the defense claimed that Appellant had been suicidal over
their breakup. The theory of the defense was that Appellant went to meet the
victim that morning, with the knives, to kill himself in front of her. He asserted
that the killing was voluntary manslaughter and not murder.
On appeal, Appellant's sole issue is whether this Court erred in
denying his request for a voluntary manslaughter jury instruction.
FACTUAL AND PROCEDURAL HISTORY
On September 27, 2021, the three-day jury trial began at which
the following facts were adduced. First to testify was Officer Ryan Hasara of the
Abington Township Police Department. (N.T, Trial by Jury- Day 1, 9/27/21, p.
32). On July 27, 2020 at about 8: 14 a.m., Officer Hasara was dispatched to the
Meadowbrook Train Station. Id. at 33, 38. When he arrived at the overflow lot
of the train station, the officer observed a blue RAV4, and a female laying to the
left of the vehicle on the ground. Id. at 35, 39. Officer Hasara knew from all of
the blood loss and trauma to the body that the victim could not be revived. Id.
at 39. He ran the vehicle's registration and determined that it belonged to
Morgan McCaffery. Id. at 41.
Both the front and back driver's side doors were open, and inside
the vehicle there was a large, sharp, kitchen knife on the front passenger
floorboard. Id. at 42.
Juan Jose Vasquez was next to testify. On July 27, 2020, he was
driving his work truck through the train station parking lot and saw a man on
top of a woman, kneeling. Id. at 49, 50 - 51. Mr. Vasquez stopped and when he
exited his truck, the man ran to a white Jeep, and drove off quickly. Id. at 51 -
2
52. Mr. Vasquez got about ten feet away from the woman who was laying there,
and all he could see was that blood was coming out of her forehead. Id. at 52.
He told a driver of a passing trash truck to call police. Id.
Carnell Kemp, a worker for the Abington Township Refuse
Department, testified that on July 27, 2020, he used the Meadowbrook Train
Station at Lindsay Lane as a turn-around in his trash pick-up route. Id. at 55 -
56. When he was there, a man flagged him down, and he pulled over. ld. at 56.
When he looked up, he saw a motionless person on the ground. Id. at 56, 58.
Mr. Kemp called his supervisor, who in turn called 9-1-1. Id. at 57. He
remained on the scene until police arrived. Id.
Sergeant David Wiley of the Abington Township Police Department,
who was a patrolman at the time of the incident, testified that on July 27,
2020, he responded to the Meadowbrook Train Station at about 8: 14 a.m. Id. at
61 - 62. When he arrived on-scene there was a female, who was later identified
as Morgan McCaffery, laying on her back with her arms and legs extended. Id.
at 63 - 64, 65. She was covered in blood, and had several traumatic wounds to
her face, arms, and torso. Id. at 64. He checked her status and there were no
signs of life. Id. at 64, 65. Sergeant Wiley spoke with Mr. Vasquez who informed
him of what he had seen, namely that a tall, skinny, male was standing overtop
the victim, and that when he got out of his truck, the male ran to a white Jeep
and left the scene at a high rate of speed. Id. at 65. As the officer was gathering
this information, he was broadcasting it over the radio to the officers en route
to the scene. Id. at 66 - 67.
3
Sergeant Wiley assisted Officer Hasara and located blood spots on
the gravel on the driver's side, and then to the right of the vehicle he noticed
skid marks in the gravel. Id. at 67. He remained on-scene while the Abington
Township detectives and Montgomery County detectives processed the scene.
Id. at 69,
Dr. Gregory McDonald, the chief deputy coroner for Montgomery
County, testified. Id. at 73. On July 27, 2020, Dr. Ian Hood performed an
autopsy on the victim, at which time he took notes and photographs and
collected evidence. Id. at 78. Dr. McDonald performed an independent review of
the file. Id. He testified that the victim sustained multiple stab and slash
wounds to multiple areas of her body, including the face, neck, chest, back
abdomen, and her arms; and the doctor concluded that she died from these
wounds, and the manner of death he determined to be homicide. Id. at 81. The
victim had about 23 stab/ slash wounds to her face and scalp, 14 wounds to
her neck, four stab wounds to her chest, a single stab wound to her abdomen,
three stab wounds to her back, and seven stab wounds to her arms. Id. at 82 -
83. Dr. McDonald opined that there were several wounds to the neck, involving
the carotid artery that could have been fatal. Id. at 88. The doctor also
identified four stab wounds to the chest, and one of which was fatal in and of
itself. Id. at 90. That stab wound went through the right side of the victim's
heart. Id. Death would have ensued within minutes, with just that injury alone,
Id. The victim also had defensive injuries to her arms and hands. Id. at 91. The
4
doctor opined that given all of the victim's injuries, the victim could have only
survived several minutes at most from the initial attack. Id. at 93.
Michele Cordalis who worked at the police administration building
as a 9-1-1 dispatcher testified that on July 27, 2020, a call came in at 10:01
a.m., and that police responded to 8507 Ferndale Street. Id. at 98.
Officer Thomas Purcell of the Philadelphia Police Department
responded to that location within two minutes, along with Officer Ernest
Griffin. Id. at 101- 102, 114 - 115. When they arrived they went to the door of
that residence, they encountered a female. Id. at 104. She told them her son
was inside covered with blood and was acting strangely. Id. at 104, The officer
spoke with Appellant, and asked him if he was okay, to which Appellant told
the officer that he had just stabbed his girlfriend multiple times and that he
doesn't want to be in this world anymore. Id. at 106, 107. Officer Griffin
handcuffed Appellant, and he was placed in the patrol wagon to be transported
to a hospital. Id. at 107, 110. Officer Purcell saw Appellant's white Jeep. Id. at
108. He observed blood on the driver's side door. Id.
Detective Philip Geliebter of the Abington Township Police
Department was called to assist with the investigation into the homicide. Id. at
120 - 121. On July 27, 2020, he responded to Abington hospital at about
10:45 a.m., where Appellant was taken.~ at 121. Detective Geliebter secured
Appellant's clothing as evidence, and took photographs of his injuries. 1sL_ at
122.
5
Lieutenant Edward Schikel, a detective with the Montgomery
County Detective Bureau, was accepted as an expert in forensic crime scene
investigation and methodology pertaining to evidence recovery, preservation,
and analysis. ill at 127, 133. At the time of July 27, 2020, he was a detective
in the forensic investigation unit and was the primary detective assigned to
process the crime scene at the Meadowbrook Train Station with a team of
detectives. Id. at 133. He responded to the scene at 9:30 a.m. Id. At the scene,
near the victim's vehicle, he identified a pair of sneakers, a pool of blood about
one foot by three feet, a bent serrated knife blade about two and three-quarter
inch, a broken knife blade, and blood extending from the blood pool to 16 to 20
feet to the victim's body, Id. at 139 - 140, 145, 150 - 151. The victim's RAV4
was still running when Lieutenant Schikel arrived at the scene. Id. at 149. The
driver's door was completely open and the driver's side rear door ~as somewhat
open. Id. The detective found a knife inside the RAV4 vehicle. Id. at 146. It was
a Ginsu style knife with an eight inch blade, and it was bloodstained. Id. at
146, 148. A knife handle with a small portion of the blade attached was found
underneath the victim's body. Id. at 153 - 154. The knife handle with the
partial blade looked to be from the same knife as the broken blade found in the
pool of blood. Id. at 155 - 156.
Detective Terrance Lewis of the Montgomery County Detective
Bureau - Forensic Services Unit testified that on July 27, 2020, he was
assisting Lieutenant Schikel, and after he assisted at the crime scene, he went
to 8507 Ferndale Street to photograph and recover any evidence. (N.T., Trial by
6
Jury- Day 2, 9/28/21, pp. 8 - 9). Inside the home he recovered a knife block,
manufactured by Ginsu. Id. at 11. Detective Lewis noted that several knives
from the knife block were missing, there were empty slots when he found it. Id.
at 12 - 13. The knives from the scene are also labeled with "Ginsu." Id. at 14.
The detective processed the exterior of Appellant's white Jeep for evidence, and
found several locations of blood stains. Id. at 15, 17. He also processed the
interior Jeep pursuant to a search warrant, where he also found several
locations of blood stains Id. at 17. Further, Detective Lewis processed the
victim's vehicle. Id. at 21. There was blood on the front passenger interior door,
front passenger seat, by the glove compartment, handle area of the front
passenger door. Id. at 23 - 24.
Detective William Mitchell of the Montgomery County Detective
Bureau, testified as an expert in the field of historical call detail record
analysis. Id. at 32 - 34. The victim's phone was recovered from her vehicle by
police. Id. at 45. Appellant's cell phone was recovered from his person at the
hospital. Id. at 4 7. Detective Mitchell requested subscriber information the
victim's phone and Appellant's phone from February 1, 2020 through July 28,
2020. Id. at 42, 46. He also downloaded the phones. Id. at 45. He further
issued search warrants for the social media companies, Facebook, Instagram,
and Snapchat that were relevant to the investigation. Id. at 52. Detective
Mitchell read out some of these texts and social media app messages indicating
that as of June 19, 2020, the victim wanted to end the relationship, and that
as of June 20, 2020 they were no longer together as a couple. Id. at 56, 58.
7
However, the texting and messaging through the various apps continued in the
following days. These messages revealed that their relationship at that point
and at the time prior to the break-up was tumultuous and that there was a lot
of arguing and name calling between them. Id. at 58, 61. They further showed
that Appellant was having a difficult time accepting the break up. Id. at 60, 61,
65, 67 - 73. In particular, on June 20, 2020, starting at about 11 :43 p.m.,
there was a volley of text messages in which Appellant told the victim, "Okay.
Well, I'm not your pet, so fuck off. I hope you honestly die at this point. Like I
just want to stab you in the neck continuously. I might actually to be honest.
Have your head on a swivel constantly." Id. at 61. Starting on July 5, 2020 at
4: 16 a.m. and continuing through the following day, Appellant texted his
mother in part as follows:
Defendant: "Did she send them to you? I just won't do
it. I wanna stab this girl in the fucking neck, dude."
Mother: "Gil."
Defendant: "If she doesn't come back to me, mark my
words, I'm going to do everything in my power to shit
on her life."
***
Defendant: "Mom, please. I'm so down. Stop talking to
dad about it. She isn't going to unblock me. I think
she's done for real. That can't happen."
Defendant: "Okay. That's fine. I'm hurt. Just let me be
for a few days. Mom, you better text her and tell her to
see me face to face so I know it's for real. Or there's
gonna be problems. I'm not doing this,"
8
Mother: "Gil, I'll text her. But if she says it's over, you
need to move on."
Defendant: "Okay. That's fine. Say all he wants to do is
either text him or see him face to face and say it's for
real. I'm never giving anyone a chance."
Mother: "I'll tell her you want to talk to her and won't
fight. But if you start fighting with her and acting like
an asshole, she will just block you again."
Defendant: "Okay. That's fine. I haven't wanted to
fight. I just want her back. All I want. If she can't do
that, then I'll never talk to her again." That simple."
Id. at 76 - 79. On July 6, 2020, the text conversation continues:
Defendant: "Because I want to talk to her. Say he will
text you when you get home. Just unblock him. She's
got an attitude like it's really done. I'm really gonna
fucking kill her dude. I will stab her in the neck 57
times."
Id. at 80. Appellant's mother replied, "See. Now you're already getting
aggressive." Id.
Defendant: "I won't act like that when we text. But just
know if she does this for real, then shows up to our
house one day, I'm shoving her face-first into the
cement. Wasted a whole year. I could have been doing
some other shit."
Id. Following that exchange, there are several phone calls from Appellant's
mother's phone to the victim's phone, all of which went unanswered. Id. at 80 -
9
On July 8, 2020, the victim initiated contact with Appellant. Id. at
81. In that text conversation, the victim states that she wants to return some of
his possessions to him. Id. at 84 - 85. He agrees that he wants them back, and
proposes Sunday to meet up. Id. at 85. On July 13, 2020, Appellant and the
victim had a text conversation, in part where they are arranging for the victim
to drop the items she had off at his house later that day, which Snapchat
location information confirmed that the victim did in fact stop by his house. ~
at 88, 89 - 90. There was additional text conversation on July 17, 2020. ~ at
90 - 91.
A day before the murder on July 26, 2020, there was a series of
communications, in which, in part, at 9:25 p.m, Appellant sent a photograph to
his mother of the victim with her new boyfriend. Id. at 94. A minute later,
Appellant texted the victim about her having a new boyfriend. Id. at 95.
Appellant was upset that she had moved on. Id. At 9:26 p.m. Then the
following conversation ensued:
Defendant: "When can we meet in person?"
Morgan: "When do you want to?"
Defendant: "Up to you. So you have no desire of even
thinking about getting back with me? Tomorrow I'm
going to the field near your house."
Morgan: "Okay. What time?"
Defendant: "Can I ask a question?"
Morgan: "What?"
10
Defendant: '1Did you have sex with him? Just be
honest. And whatever time you are available."
Morgan: "None of your business."
Defendant: ''So you did. That's disgusting, Morgan."
Morgan: "Didn't say that."
Defendant; "We will talk tomorrow. What time?"
Morgan: "7:30?"
Defendant: "In the morning?"
Morgan: "Yeah."
Defendant: "How about 10:00. So did you have sex
with him? Just be honest with me. I'll be there at ten
o'clock."
Morgan: "I'll be there at 7:30. Take it or leave it."
Defendant: "Okay. Can you just answer the question."
Morgan: "What does that matter."
Defendant: "Because it does. Can you just tell me the
truth."
Morgan: "Then there's no need to meet tomorrow."
Defendant: ''Why? I'll be there at 7:30."
Morgan: "How the fuck did you find my VSCO?"
Defendant: "I been knew it. I was on it. I was really
working on myself for you, too. I guess that's out of the
picture now."
11
Morgan: "You should have been working on yourself
for yourself, not for me. It's not healthy at all."
Defendant: "You in love with this guy?"
Morgan: "No."
Defendant: "Do you love me?"
Morgan: "I still care about you and you will always
always have a place in my heart."
Defendant: "So you would never be able to have me as
your lover again? I really don't get it."
Defendant: "I will be there at 7:30."
Defendant: "Answer the question."
Morgan: "Nevermind about tomorrow. You and your
mother need to stay the fuck out of my life. You need
to never contact me ever again. I'm blocking you."
Id. at 95 - 98. During this time in the text conversation, there was a Facebook
message from Appellant's mother to the victim's Facebook page via Facebook
messenger. Id. at 98.
Defendant: "No. I want to meet tomorrow. Relax. I'll be
there at 7:30."
Morgan: "No, I'm done. You and your mother need to
leave me the fuck alone."
Defendant: "Take my mom of the picture. l'11 see you
tomorrow at 7:30.''
Morgan: "No. Fuck you. Leave me alone."
Defendant: "I'll be there at 7:30, Morgan. Relax.''
12
Morgan: "No. Fuck off."
Defendant: "She did this, not me. I'll be there at 7:30."
Morgan: No. Fuck off, dude. You both can leave me the
fuck alone and stay the fuck out of my life. I have been
so fucking happy with my life. Leave me alone."
Defendant: "I didn't tell her to text you, I really didn't.
I'll be there at 7:30."
Morgan; "Even in our fucking relationship, you told
her everything. You have her get the fuck involved.
You all leave to leave me alone and stay the fuck out of
my business."
Defendant: "Just relax. You literally want to come talk
to me about this. Cut my mom out of this. She is
crazy."
Morgan: "No, I'm done, dude. I wanted to talk in
person because it was respectful, but now I don't
care."
Defendant: "Can you tel1 me what we would've talked
about, how you found someone better? I want to talk
in person one last time out of respect without my mom
involved. The least you can do."
Morgan: "No. Your mom ruined that, just like she
ruined your chance."
Defendant: "I know she did."
Morgan: "Have a nice one, Gil. I wish you the best, but
you gotta leave me the fuck alone."
Defendant: "I want to see you tomorrow in person one
last time to talk. Just please do that for me."
Morgan: "No."
13
Defendant: "Why?"
Morgan: "You mom ruined that."
Defendant: "It would be just me there, not her. You
weren't coming back anyway. I just want to talk. So if
she wasn't harassing you, you probably would have
come back? Just meet me there at 7:30."
Defendant: "I had one last thing to give you anyway. Is
that okay? The least you can do, Morgan."
Morgan: "No. I'm a piece of shit. I'm a coward. I'm
disgusting. I'm good, but thanks."
Defendant: "I just flipped out on my mom. I told her I
will never forgive her. So get my mom out of it. It's just
between me and you. I'll see you at 7:30."
Morgan: "No. I don't care. Your mom involved herself
too much at this point pint. Sorry, Gil, but you I'm not
meeting you tomorrow."
Defendant: "I don't think of you as any of that. I'll drive
to you."
Morgan: "No. Please don't."
Defendant: "Morgan, seriously."
Morgan: "What. Your mom is beyond disrespectful.
She crossed the line too many times."
Defendant: "Thatjust shows you don't care about me
because I gave you a whole year. Get her out of the
picture. I just want to talk to you. I don't claim my
mom."
Morgan: "How can I get her out of the picture? She
fucking involves herself and you involved her."
14
Defendant: "I didn't. I just told her because she kept
asking me how it was going because she saw how hurt
I was. Just get her out of the picture and meet me
tomorrow.
Defendant: "I gave you everything I got. Least you can
do is see me tomorrow."
Morgan: "Nah, sorry. You and her kinda put her in the
picture."
Defendant: You really like this kid more than me?
What were you saying to him about me today? That
was the kid you were FaceTime though. I'll see you
tomorrow at 7:30 at the filed or your house."
Morgan: "I never FaceTime some kid though. I told you
that."
Defendant: "So you have more feelings for this kid
than me?"
Morgan: "Met this kid after we were done."
Defendant: "He makes you happier? We meeting
tomorrow or no? I want to talk to you in person."
Morgan: "He makes me happy, yes."
Defendant: "It's the mature thing to do."
Morgan: "Fine, Gil."
Defendant: "Okay. Happier than me? Nevermind. We
will talk about it tomorrow at 7:30. I'll see you there,"
Morgan: "You gonna tell you mom everything, too?"
Defendant: "No, I won't. She just asked how it was
going. I said she found someone new. That's all. That's
who I went to when I was in pain, but not anymore."
15
Morgan: "Probably will, cracking the fuck up."
Defendant: "I won't."
Morgan: "Yeah. Whatever, Just saying she makes
herself look like this immature mom, so."
Defendant: "She doesn't need to know anything. She
knows you will never come back to me. It doesn't
matter, I told her I'm done with her."
Morgan: "I always liked her and respected her. I don't
know why she thinks it's okay to disrespect me."
Defendant: "She ruined the best thing that happened
to me. So she ruined us? Like even if there was some
way for yous to get along."
Morgan: "I'm very much done."
Defendant: "Nevermind. We will talk about it
tomorrow. That's fine."
Id. at 98 - 104.
On July 27, 2020, the day of the murder, there was additional
phone activity between Appellant and the victim. Starting at 6:52 a.m., the
victim texted Appellant but could not get ahold of him. Id. at 105 - 106. At 7:34
a.m,, Appellant texted her stating, "I'm sorry. I fell asleep. I'll be there soon. I'm
coming now. Please."
Morgan: "You have until 45. Then I'm leaving,"
Defendant: "Church parking lot."
Morgan: "At the track."
16
Defendant: "Nah, church more private. This is in
person. In person."
Morgan: "Fine. You have nine minutes. Four minutes."
Defendant: "Red light. Nothing I can do. I'm almost
there. Relax. Just please stay. I already halfway there.
Going under the bridge now."
Id. at 106. Morgan sent another text stating that there is another car at the
church location. Id. at 108. Defendant suggested going to a more private place,
and then they decided to go to the train parking lot. Id. at 108 - 109. According
to cell site location, Morgan was at the train station at 7:55 a.m. Id. at 110. The
last activity from the victim's phone was at 8:06 a.m., when she called her
mother, but the call did not go through. Id. at 110 - 111. The 9-1-1 call
occurred at 8: 12 a.m. Id. at 111.
At 8:51 a.m., Appellant texted his mother, "Mom, I killed Morgan
about an hour ago." Id. at 115. Appellant explained, "I constantly had sick
thoughts in my head. I couldn't do it anymore. I love you guys so much. I had
the biggest heart, no brains. That was the problem. You guys couldn't do
anything else." Id. His mother was in disbelief, to which Appellant responded,
"I'm sick in the head. There was no stopping me." Id. at 116. At 9;06 a.m.,
Appellant texted, "Mom, I stabbed her repeatedly." Id. at 117.
On cross-examination, Detective Mitchell acknowledged that on
July 17, 2020, Appellant had sent several text messages expressing suicidal
thoughts. Id. at 133 - 137. After Detective Mitchell's testimony, the
Commonwealth rested its case.
17
The defense presented numerous character witnesses, including,
Richard McCollick, Harry Dumas, David Hoftiezer, Wilton Benson, Charles
McCormick, Gilbert Newtwon, Jr. (Appellant's father), and Judy Newton. Id. at
140 - 149.
Next, Appellant testified on his own behalf. Id. at 151. He testified
that he wanted to meet up with the victim because he wanted to see if she
really cared about him, and to find out whether she was sleeping with another
man. Id. at 151. He explained that if she was sleeping with another man he
was going to kill himself, in front of her. Id. He wanted to see if she would
intervene as a test of whether she cared. Id. at 151 - 152. It was his plan to
stab himself in the neck as many times as he could. Id. at 152. Appellant
testified that he brought two kitchen knives with him, and that he just grabbed
them right before he left his house. !fL. He put them in the pouch of his hoodie.
Id. When Appellant and the victim both arrived at the train station, he got into
her car, and they started to talk. Id. at 153. Appellant admitted that at that
time he loved the victim, and that he was upset. Id. at 154. The victim had a
bag with items belonging to Appellant, so she exited the front driver's side and
opened the rear driver's side door to retrieve the bag. Id. at 155. That is when
Appellant pulled the knives out, and placed them on both sides of his legs. Id.
Appellant asked her if she with the other guy and Appellant explained the
victim's response as follows:
She said - - she said she was definitely sleeping with
him and she was definitely trying to start something
new with him, and that she kind of - - you know, she
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kind of chuckled at me because, once that was said, I
asked her, Like why? Like why is this happening? I
thought we were supposed to be together forever and
that we were both - - we both came into the
relationship as virgins because it was just so - - it's
just so hard to find someone nowadays that hasn't
been dating around. So it was just like - - it felt like it
was meant to be and we both really cared for each
other. And I just - - she said that it was hilarious that I
thought that that was the truth, that we were both
virgins for each other, and that she had lots of sex
before she dated me and that she was going to have a
lot of sex after she was done with me.
Id. at 157. Appellant testified that this made him really upset and that the
anger started to kick in after hearing this. Id. He called the victim a fucking
whore. Id. at 158. The victim turned and smacked and spit on him. Id.
Appellant explained the effect this had on him, testifying, "And it just got to the
point where I just - - as soon as she slapped me and spit on me, I just - - it
went through my mind like - - like she must really not care about me. And I
just - - I got so upset that I grabbed the knife and I just starting stabbing her."
Id, After Appellant's cross-examination, the defense rested. Id. at 164 - 182.
The defense concluded its evidence.
After the jury was excused, defense counsel asserted that the jury
should be instructed on voluntary manslaughter. Id. at 186. The
Commonwealth rejected this argument. Id. at 187. This Court denied the
request and provided reasons for the denial on the record. Id. at 188 - 189.
At the start of the third day of trial, defense counsel requested that
this Court reconsider its ruling on the voluntary manslaughter jury instruction,
19
citing to Commonwealth v. Locks and Commonwealth v . Marks. (N.T., Trial by
Jury- Day 3, 9/29/21, p. 3), This Court having reviewed these cases,
reaffirmed its ruling, and provided additional reasons for the denial on the
record. Id. at 4-6,
At the conclusion of the trial, the jury returned a verdict of guilty of
first-degree murder and possession of an instrument of crime. Id, at 69.
Appellant proceeded immediately to a sentencing hearing. Id. at 71. Appellant
was sentenced to a life term of imprisonment. Id, at 101.
On October 6, 2021, a timely post-sentence motion was filed, and
denied. A timely direct appeal was not filed. On January 4, 2022, a petition
seeking post-conviction relief pursuant to the Post-Conviction Relief Act, 42
Pa.C,S. §§ 9541-9546, was filed requesting the reinstatement of Appellant's
direct appeal rights, which was granted on January 6, 2022. Accordingly, a
notice of appeal was filed that same day.
ISSUE
This Court issued an order directing Appellant to provide a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. l 925(b).
Appellant submitted the following issue as stated verbatim below:
1 , Did the lower court err in denying appellant's
request for a voluntary manslaughter - heat of
passion jury instruction.
See, Concise Statement of Errors Complained of on Appeal, filed 1 /28/22.
20
DISCUSSION
I. Voluntary Manslaughter Jury Instruction
On appeal, Appellant contends that this Court erred in denying his
request to instruct the jury on voluntary manslaughter. For the reasons that
follow, this Court properly denied the request and this issue should be rejected
as meritless.
The relevant inquiry for an appellate court when reviewing a trial
court's failure to give a jury instruction is whether such charge was warranted
by the evidence in the case. Commonwealth v. Baker, 963 A.2d 495, 506 (Pa.
Super. 2008) (citations omitted). Additionally, the Pennsylvania Superior Court
has stated:
In reviewing a challenge to the trial court's refusal to
give a specific jury instruction, it is the function of this
Court to determine whether the record supports the
trial court's decision. In examining the propriety of the
instructions a trial court presents to a jury, our scope
of review is to determine whether the trial court
committed a clear abuse of discretion or an error of
law which controlled the outcome of the case. A jury
charge will be deemed erroneous only if the charge as
a whole is inadequate, not clear or has a tendency to
mislead or confuse, rather than clarify, a material
issue. A charge is considered adequate unless the jury
was palpably misled by what the trial judge said or
there is an omission which is tantamount to
fundamental error. Consequently, the trial court has
wide discretion in fashioning jury instructions. The
trial court is not required to give every charge that is
requested by the parties and its refusal to give a
requested charge does not require reversal unless the
appellant was prejudiced by that refusal.
21
Id. at 507 (quoting Commonwealth v. Brown, 911 A.2d 576, 582-583
(Pa.Super. 2006)).
With respect to a "heat of passion" voluntary manslaughter
instruction, the Pennsylvania Supreme Court has explained:
A voluntary manslaughter instruction is warranted
only where the offense is at issue and the evidence
would support such a verdict. To support a verdict
for voluntary manslaughter, the evidence would have
had to demonstrate that, at the time of the killing,
[the] appellant acted under a sudden and intense
passion resulting from serious provocation by the
victim. 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. Sanchez, 82 A.3d 943, 979-80 (Pa. 2013) (internal quotation
marks and citations omitted).
"Heat of passion" includes emotions such as anger, rage, sudden
resentment or terror which renders the mind incapable of reason. An objective
standard is applied to determine whether the provocation was sufficient to
support the defense of 'heat of passion' voluntary manslaughter. The ultimate
test for adequate provocation remains whether a reasonable man, confronted
with this series of events, became impassioned to the extent that his mind was
incapable of cool reflection. Commonwealth v. Miller, 987 A.2d 638, 650 (Pa.
2009) (internal quotation marks and citations omitted).
A trial court must make an initial determination whether sufficient
evidence has been presented of serious provocation. See Commonwealth v.
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Carter, 466 A.2d 1328 (Pa, 1983) (where evidence does not support finding of
manslaughter, court need not submit issue to jury); Commonwealth v.
Dews, 239 A.2d 382 (Pa. 1968) (where no evidence of manslaughter, it is proper
to refuse to submit manslaughter issue to jury); Common wealth v. Carr, 580
A.2d 1362, 1364 (Pa.Super. 1990). Our Supreme Court has made clear that "a
trial court shall only instruct on an offense where the offense has been made
an issue in the case and where the trial evidence reasonably would support
such a verdict. Therefore, only where an instruction is requested and only if the
evidence supports 'heat of passion' voluntary manslaughter, is an instruction
thereon required." Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996);
see also Commonwealth v. Solano, 906 A.2d 1180, 1190 (Pa. 2006) ("a trial
court should not instruct a jury on legal principles which bear no relationship
to the evidence presented at trial").
At the end of the second day of trial, defense counsel asserted that
the jury should be instructed on voluntary manslaughter, Id, at 186. He argued
that there was enough evidence from which a jury could reasonably convict
Appellant of voluntary manslaughter. Id. Defense counsel further argued that it
was a question of fact for the jury, whether Appellant had sufficient legal
provocation without a sufficient time to cool. Id.
The Commonwealth rejected this argument, arguing that for a
defendant to get this instruction, there must be adequate provocation, and that
words of insulting or slanderous nature are not enough to meet this burden.
Id, at 187. The Commonwealth asserted that the Superior Court has upheld as
23
insufficient provocation minor scuffles and disputes over trivial matters and
small debts. Therefore the Commonwealth concluded that as a matter of law
the victim smacking and spitting on Appellant is not adequate provocation,
that it is instead a trivial matter. Id.
The Court denied the defense request for the instruction and
explained its reasons on the record as follows:
THE COURT: Please be seated. rm looking at the
question of whether a voluntary manslaughter
instruction is warranted by the evidence. An objective
standard is applied to whether or not there was
serious provocation by Morgan McCaffery to support a
heat of passion instruction. There are cases that use
the following language: "In numerous cases, evidence
showing a history of minor disputes and allegations of
past infidelity has been held not to be sufficiently
provocative to reduce murder to manslaughter, citing
Commonwealth v. Frederick holding that evidence of a
stormy relationship and of an argument between
defendant and his victim earlier in the day of the
killing was not sufficient. Evidence of provocation
would require a heat of passion jury instruction."
Another case talks about the cumulative effect of the
defendant's stormy relationship. This is mason, M-A-
S-0-N. "The cumulative effect of defendant's stormy
relationship with the victim and revelations of infidelity
that occurred in the parties' relationship did not
qualify as a heat of passion defense evidence where
defendant did not specifically assert at the time of the
killing that has caused him to act."
I find that the slap and the splitting taken with the
words and history of the relationship does not support
a voluntary manslaughter instruction as a matter of
law. I, therefore, will not give the instruction.
24
Id. at 188 - 189.
At the start of the third day of trial, defense counsel requested that
this Court reconsider its ruling on the voluntary manslaughter jury instruction,
citing to Commonwealth v. Locks and Commonwealth v. Marks. (N.T., Trial by
Jury- Day 3, 9/29/21, p. 3). This Court reviewed the cases, and stated its
belief they are distinguishable. This Court noted that the Marks case involved a
bench trial and the other case, involved a degree of guilty. Neither involved a
jury. Id. at 4. Additionally, this court expanded on its reasoning in denying the
requested jury instruction from the previous day as follows:
So I would like to expand on my reasoning of yesterday
citing McCuster, M-c-C-u-s-t-e-r, the ultimate test for
adequate provocation remains whether a reasonable
man confronted with this series of events became
impassioned to the extent that his mind was incapable
of full reflection.
As I said yesterday, I don't believe a reasonable person
confronted with these facts and events would elect to
kill somebody. Clearly, there was passion involved
here, but the passion is not the ultimate test for the
judge to determine because that's a subjective - -
you're looking at subjectively what is in the
defendant's mind. So it's clear there was passion, but
whether the provocation is serious enough is a legal
standard that the Court determines objectively.
I would like to articulate further that this defendant
basically at the time of the killing when he's on top of
Morgan, and the first witness in the case appears on
the scene, Juan Vasquez, this defendant immediately
runs to his car, drives away at a high rate of speed,
and successfully negotiates his way to his friend's
house and then to him home. That shows a certain
25
amount of cool reflection, that he was not so
impassioned that he could not reflect.
Furthermore, the Commonwealth has introduced into
this case evidence that the defendant made statements
by text messages that show his premeditation and
specific intent to kill. I'm not going to quote all of
them, but "I'm really going to kill her," I believe he said
to his mother, "I will stab her in the neck 57 times."
Well, he went to the encounter with the victim armed
with a deadly weapon, two knives. He never did use it
on himself. He only used it on Morgan McCaffery in a
similar way that he described to his mother.
So I think his mind was capable of cool reflection.
There was indeed passion present, but the provocation
was not serious enough in the objective standard to go
to the jury.
Id. at 4 - 6.
In this case, Appellant and the victim had a tumultuous
relationship around the time of the break-up and through the time leading up
to the murder as demonstrated by the texts conversations and social media
messages introduced at trial dating from June 19, 2020, up until right before
the victim was murdered. In addition, according to Appellant's testimony,
immediately prior to the murder he and victim had a conversation in which the
victim said things that were hurtful to him, she smacked and spit on him.
Taking all of this evidence together, it is not sufficient to warrant an
involuntary manslaughter jury instruction. Our case law holds that evidence
that the defendant and the victim had a difficult relationship and had argued
on the day of the killing was insufficient to warrant a voluntary manslaughter
instruction. See, Commonwealth v. Frederick, 498 A.2d 1322, 1325 (Pa .1985);
26
see also, Commonwealth v. Walters, 431 Pa, 74,244 A.2d 757 (1968) (holding
that there was insufficient evidence that defendant killed in heat of passion
after the victim argued with and cursed at the defendant prior to the murder);
Commonwealth v. Cisneros, 113 A.2d 293, 296 (Pa. 1955) (wife's racial slurs to
husband emphasized by sticking her finger at his shoulder was insufficient
provocation).
The cases cited by the defense in support of providing the jury
instruction, Commonwealth v. Locks, 2014 WL 10788850 (Pa.Super. filed Nov.
14, 2014) (memorandum decision) and Commonwealth v. Marks, 704 A.2d
1095 (Pa.Super. 1997), are inapplicable because neither dealt with whether to
provide jury instructions on voluntary manslaughter. In Locks, the trial court
was faced with a degree of guilt hearing, and on appeal the defendant
challenged the determination of the trial court of third-degree murder and not
voluntary manslaughter. Id. at *3, In Marks, it was a non-jury trial, and at
issue on appeal was the sufficiency of the evidence, and whether the evidence
supported a verdict of voluntary manslaughter. Id. at 1099.
For these reasons and those set forth on-the-record at trial, the
request for voluntary manslaughter jury instructions was properly denied.
27
CONCLUSION
Based upon the foregoing analysis, Appellant's judgment of
sentence entered on September 29, 2021, should be affirmed.
BY THE COURT:
WILLIAM R. CARPENTER J.
COURT OF COMMON PLEAS
MONTGOMERY COUNTY
PENNSYLVANIA
38rn JUDICIAL DISTRICT
Copies sent on March 21, 2022
By Electronic Mail to:
Robert Falin, Esquire, Deputy District Attorney, Chief of Appellate Division;
RFalin@montcopa .org
James Berardinelli, Esquire, Office of the Public Defender, Chief of Appellate Division;
JBerardinelli@montcopa.org
Denise S. Vicario, Esquire, Executive Director; opinions@montgomerybar.org
Paul DAnnunzio; PDAnnunzio@alm.com
Copies sent on March 21, 2022
By First Class Mail to:
Gilbert Newton, III #QN0221
SCI Camp Hill
P.O. Box 8837
2500 Lisburn Road
Camp Hill, PA 17001
~).,.-,:/fr, 11k ~~ ~.. "
Judicial Assistant
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