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March 26, 2026 Get Citation Alerts Download PDF Add Note

Com. v. King, B.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 2349 EDA 2024
• Precedential Status: Non-Precedential

• Judges: Stabile

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Lead Opinion

                        by [Victor P. Stabile](https://www.courtlistener.com/person/8247/victor-p-stabile/)

J-S39002-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRICHETT KING :
:
Appellant : No. 2349 EDA 2024

Appeal from the Judgment of Sentence Entered August 8, 2024
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0004820-2023

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED MARCH 26, 2026

Appellant, Brichett King, seeks review of the judgment of sentence

entered by the Court of Common Pleas of Delaware County (trial court),

following a jury trial. This case arose from a 2023 incident in which Appellant

fatally shot his uncle, James Ford (the victim). Appellant was charged with

several offenses in connection with that death, and was found guilty of one

count of voluntary manslaughter. The trial court sentenced him to a prison

term of 5.5 to 11 years. Appellant now argues that the judgment of sentence

must be vacated because the Commonwealth failed to disprove his claim of

justifiable self-defense; the evidence of guilt was legally insufficient; and a

missing witness instruction was erroneously denied. We affirm.

The underlying facts of this case are not in dispute. On August 17, 2023,

Appellant was working as a mechanic at ATP Motors, an auto repair shop. The

victim drove to the auto shop at about 4:30 p.m. that day to have his vehicle’s
J-S39002-25

oil changed. As Appellant began working on the victim’s vehicle, the two

began arguing about whether Appellant had damaged its sideboard with a

jack. They continued arguing even as Appellant completed the oil change and

walked into the garage of the auto shop.

The victim followed Appellant into the garage of the auto shop, and soon

after he did so, Appellant quickly turned around and shot him three times with

a firearm. Appellant then ran to another customer’s vehicle near the garage,

removed the license plate from the vehicle, and drove away in it. The victim

ran to a nearby river and collapsed on the ground. By the time police arrived,

the victim had already succumbed to his injuries.

During their investigation, detectives recovered surveillance video

footage of much of the incident. The trial court described the surveillance

footage as follows:

[T]he video from the side of the ATP Building (C-4) shows
Appellant and [the victim] on the property, with the victim’s
[vehicle] visible on the right side of the screen beginning at
8/17/23, 16:28:05 on the time counter. Appellant is seen
moving about, going in and out of the garage, which is toward the
left side of the screen, while he is performing the oil change as
testified. Over the next [12] minutes, [the victim] and Appellant
are seen on and off visibly moving their arms and speaking to
each other in very animated manners, suggesting there was some
on-going disagreement between them.

At 8/17/23, 16:40:42 . . . , Appellant is clearly seen turning his
back on the victim who is from him over [10] feet away. One . . .
second later, at 16:40:43, Appellant leaves the video’s view as
he enters the garage with [the victim] moving in the direction of

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the garage following Appellant. At 16:40:46, the victim leaves
the view of the video as he enters the garage.

At 8/17/23, 16:40:47, on video C-5, from inside the building,
Appellant is observed entering the garage and immediately
turning around and shooting a gun in the direction from which he
had entered, which is in the direct of the victim, who was at a
distance following him into the garage. [Appellant’s] actions in
turning around and shooting are fluid and simultaneous. Several
shots are seen being fired between 16:40:47 and 16:40:49, with
Appellant then going back out of the garage in the same
direction he was shooting. The victim is not visible on this video.

At 8/17/23, 16:40:50, . . . [the victim] is seen exiting the garage
and running toward the ATP building’s rear. Appellant is
observed leaving the garage at 16:40:51, as the victim’s son
(Samage Ford) is seen approaching from the right side where the
[the victim’s vehicle] was situated. After interacting with
Appellant, who is visibly still holding a gun, the victim’s son
(Samage Ford), is mo[m]entarily observed running toward where
his father fled, shown at 16:41:03. At 16:41:09, Appellant
leaves the view of the camera, to the right toward the front of the
ATP building, then returns briefly at 16:41:15. At 16:41:19,
Appellant moves beyond the camera’s . . . view.

At 16:41:19, Appellant is [shown] . . . walking from the side of
the building to the front and calmly getting into an SUV, then
driving away.

Trial Court 1925(a) Opinion, at 33-34 (internal citations omitted).

Days after the shooting, Appellant turned himself in. He was charged

with several offenses in connection with the victim’s death, including first-

degree murder. Defense counsel requested, and was granted, a jury charge

on justified self-defense and “imperfect” self-defense. Appellant asserted that

he shot the victim while holding a reasonable belief that deadly force was

necessary to avoid an imminent threat of deadly force from the victim, making

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him innocent of murder, and guilty of, at most, voluntary manslaughter if his

belief in the need for deadly force were found to be unreasonable.

At trial, Appellant took the stand on his own behalf to testify in support

of his self-defense claim. According to Appellant, he and the victim (his uncle)

were best friends, and on the day of the shooting, the victim grew hostile and

irrational, believing Appellant had damaged his vehicle. Appellant repeatedly

told the victim to go home, and when Appellant tried to walk away to the auto

shop’s garage, he heard the victim making threats of violence.

On direct examination, Appellant testified that he opened fire on the

victim upon hearing the sound of a gun being “racked,” and believing that the

victim was about to shoot him, Appellant preemptively shot the victim three

times in rapid succession. See id., at 182. It was only after Appellant had

discharged his own weapon that he saw the victim holding a firearm:

And once I heard that, you know, well -- yes. Once I heard that
[racking sound], I immediately just thought about death and I just
-- I immediately turned around to the sound of that noise and I
fired three rounds. When I fired the rounds -- when I finally turned
around in his direction, he was still -- he was facing me and I fired
three rounds. And in the midst of me firing the rounds, he
immediately turned away with the gun in his hand positioning to
run out like this.

Id., at 180.

On cross-examination, the Commonwealth confronted Appellant with an

audio recording of a phone call he had made with the car shop’s owner, Leon

Booker, in which Appellant told Booker he saw the victim lifting his shirt, but

failed to mention ever seeing a gun or hearing the sound of a gun being racked

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by the victim. See id., at 210-17. Appellant stated in response, and

inconsistently with his testimony on direct examination, that he saw the victim

with a firearm when he raised his shirt, just prior to hearing the racking sound:

[Commonwealth]: When you were going into the garage, you
would see him lift the shirt, you saw he had a firearm on --

Id., at 222. Moments later, Appellant again changed his account, stating that

at the time he heard the racking sound, he could see “out of the corner of

[his] eye,” that the victim was “lifting his shirt.” Id., at 223. But at that

point, Appellant testified that he was still “[n]ot sure whether or not he had

the gun[.]” Id.

Other than Appellant’s testimony, there was no evidence that the victim

possessed a firearm during their altercation. The video surveillance footage

of the incident did not indicate that the victim ever carried a weapon or

brandished one to Appellant. Detectives searched the area and found no

weapon near the victim’s body or elsewhere in and around the auto shop. The

jury ultimately found Appellant not guilty of murder, but guilty of voluntary

manslaughter, and the trial court sentenced him as outlined above.

Appellant timely appealed, and in his brief, he now raises three issues

for our consideration:

1. Whether the Commonwealth failed to prove beyond a reasonable doubt that Appellant did not act in justifiable self- defense when he reasonably believed that he was in danger of death or serious bodily injury such that deadly force was necessary[.]

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1. Whether the evidence was insufficient to establish Appellant’s
   guilt for the offense of Voluntary Manslaughter, 18 Pa.C.S. § 2503
   (b), where the Commonwealth failed to prove beyond a
   reasonable doubt that Appellant did not believe that he was in
   actual danger of death or serious bodily injury or that he
   unreasonably believed that he was in actual danger of death or
   serious bodily injury[.]

2. Whether the trial court erred when it denied Appellant’s request
   for a missing witness jury instruction when the Commonwealth
   not only failed to subpoena a material witness, Leon Booker, but
   told the witness he was not needed for trial, resulting in the
   witness absenting himself at the time of trial thereby making him
   unavailable to the defense[.]

Appellant’s Brief, at 3 (suggested answers omitted).

Appellant’s first claim is that the Commonwealth failed to prove beyond

a reasonable doubt that his use of deadly force was justified by the threat of

death or serious bodily injury.

“Self-defense is a complete defense to a homicide charge[.]”

Commonwealth v. Jones, 271 A.3d 452, 458 (Pa. Super. 2021). A person

is authorized to use deadly force in self-defense when certain statutorily

enumerated conditions are met:

(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.

(b) Limitations on justifying necessity for use of force.—

---

(2) The use of deadly force is not justifiable under this
section unless the actor believes that such force is

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J-S39002-25

necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse
compelled by force or threat; nor is it justifiable if:

(i) the actor, with the intent of causing death or
serious bodily injury, provoked the use of force
against himself in the same encounter; or

(ii) the actor knows that he can avoid the necessity of
using such force with complete safety by retreating,
except the actor is not obliged to retreat from his
dwelling or place of work, unless he was the initial
aggressor or is assailed in his place of work by another
person whose place of work the actor knows it to be.

---

(2.3) An actor who is not engaged in a criminal
activity, who is not in illegal possession of a firearm
and who is attacked in any place where the actor
would have a duty to retreat under paragraph (2)(ii)
has no duty to retreat and has the right to stand his
ground and use force, including deadly force, if:

(i) the actor has a right to be in the place where he
was attacked;

(ii) the actor believes it is immediately necessary to
do so to protect himself against death, serious bodily
injury, kidnapping or sexual intercourse by force or
threat; and

(iii) the person against whom the force is used
displays or otherwise uses:

(A) a firearm or replica of a firearm as defined
in 42 Pa.C.S. § 9712 (relating to sentences for
offenses committed with firearms); or

(B) any other weapon readily or apparently
capable of lethal use.

18 Pa.C.S.A. § 505 (emphasis added).

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J-S39002-25

“When the defendant introduces evidence of self-defense, the

Commonwealth bears the burden of disproving such a defense beyond a

reasonable doubt.” Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa.

2009). “[T]he Commonwealth cannot sustain its burden of proof solely on the

factfinder’s disbelief of the defendant’s testimony. The ‘disbelief of a denial

does not, taken alone, afford affirmative proof that the denied fact existed so

as to satisfy a proponent’s burden of proving that fact.’” Commonwealth v.

Torres, 766 A.2d 342, 345 (Pa. 2001) (quoting Commonwealth v. Graham,

596 A.2d 117, 118 (Pa. 1991)).

The Commonwealth may carry its burden of disproving a self-defense

claim by establishing at least one of three facts beyond a reasonable doubt:

1) the accused did not reasonably believe that he was in danger
of death or serious bodily injury; or 2) the accused provoked or
continued the use of force; or 3) the accused had a duty to retreat
and the retreat was possible with complete safety.

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

Commonwealth v. Hammond, 953, 559 (Pa. Super. 2008)).

Relevant factors for determining the reasonableness of a self-defense

claim include:

whether complainant was armed, any actual physical contact, size
and strength disparities between the parties, prior dealings
between the parties, threatening or menacing actions on the part
of complainant, and general circumstances surrounding the
incident[.]

Id. at 788 (internal quotations and citations omitted).

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Crucially, evidence that the victim was unarmed can be used to show

that a defendant’s use of deadly force was unreasonable and therefore

unjustified. See Jones, 271 A.3d at 460 (finding that claim of self-defense

was negated in part because “[n]o weapon of any kind was found on Victim

and no witness saw any weapon on Victim.”).

When considering the sufficiency of evidence which disproves a self-

defense claim, our standard of review is to determine whether, “viewing all

evidence admitted at trial in the light most favorable to the verdict winner,

there is sufficient evidence to enable the fact-finder” to find that a self-defense

claim has been disproven beyond a reasonable doubt. See id. at 457-60

(citations omitted). The fact-finder is “free to believe all, part or none of the

evidence.” Id. (citations omitted); see also Rivera, 983 A.2d at 1221 (self-

defense claim must be disproved beyond a reasonable doubt); Torres, 766

A.2d at 345 (disproving a self-defense claim requires something more than

mere disbelief in a defendant’s testimony).

In the present case, Appellant has argued that the Commonwealth failed

to carry its burden of proving that his belief in the necessity of deadly force

against the victim was unreasonable. We find, however, that viewed in the

light most favorable to the Commonwealth, the evidence was sufficient to

disprove that theory of self-defense.

At trial, Appellant testified inconsistently as to how the shooting

unfolded and when he initially believed the victim was about to use deadly

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force. Appellant first testified that he heard a gun “racking” behind him, and

quickly turned around to shoot the victim three times. See N.T. Trial,

5/14/2024, at 180-81. On cross-examination, Appellant admitted that he did

not mention the sound of a gun racking when recounting what had transpired

in a phone call he made just one hour after the shooting had occurred. See

id. at 210-12. He instead stated that he knew the victim was armed prior to

the racking sound because he saw the victim lift his shirt to reveal a firearm

in his waistband. See id. at 222. The jury was permitted to disbelieve

Appellant’s testimony, especially where it contained such material

inconsistencies.

Moreover, video surveillance footage of the incident shows that the

victim and Appellant were arguing as Appellant walked to the garage of the

auto shop. Contrary to Appellant’s account, the video recording of the incident

did not at all indicate that the victim was either armed or threatening harm to

Appellant. The victim’s lack of a weapon was partly corroborated by searches

of the area by investigating detectives, who found no firearms on the victim’s

person or elsewhere in the area where he was shot.

Finally, Appellant’s conduct after the shooting arguably showed

consciousness of guilt, and knowledge that his use of deadly force was

unreasonable. See, e.g., Commonwealth v. Hughes, 865 A.2d 761, 792

(Pa. 2004) (conduct of defendant after crime may be admitted “to show

guilt”); Commonwealth v. Bradley, 69 A.3d 253, 258-59 (Pa. Super.

• 10 - J-S39002-25

2013) (“[D]efendant's attempts to cover up after a crime can be inferred to

demonstrate a consciousness of guilt.”). Rather than remain at the auto shop

and wait for police to arrive, Appellant immediately fled the area in a

customer’s vehicle, only doing so after removing the vehicle’s license plate.

Thus, in addition to Appellant’s conflicting testimony (which the jury was

permitted to disbelieve), there was other evidence negating self-defense

which was sufficient to support the jury’s verdict.

Appellant’s second claim is that the evidence of voluntary manslaughter

was legally insufficient because the Commonwealth failed to prove beyond a

reasonable doubt that he did not believe he was in actual danger of death or

serious bodily injury, or that he unreasonably believed that he was in actual

danger of death or serious bodily injury.

The offense of voluntary Manslaughter is defined as follows:

(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, but his belief is unreasonable.

1. Pa.C.S.A. § 2503(b).

In addition to a claim of “perfect” self-defense, which would, if

successful, result in complete acquittal, a defendant charged with first-degree

murder may (as Appelland did here) alternatively claim that he committed an

“unreasonable belief killing” as an act of “imperfect self-defense.” See 18

Pa.C.S.A. § 2503(b). “A person who intentionally or knowingly kills an

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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.” Id.

“The derivative and lesser defense of imperfect belief self-defense is

imperfect in only one respect – an unreasonable rather than a reasonable

belief that deadly force was required to save the actor's life. All other

principles of justification under 18 Pa.C.S. § 505 must [be satisfied to prove]

unreasonable belief voluntary manslaughter.” Commonwealth v.

Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (internal citations and quotations

omitted).

Here, as discussed above, the Commonwealth presented evidence that

Appellant had an unreasonable fear of death or serious bodily injury. Although

Appellant testified that the victim possessed a weapon, this testimony was

uncorroborated by any other evidence. In fact, the surveillance video of the

incident partly established that he was unarmed because it does not show the

victim possessing a weapon. The victim did not have a gun on his person

when he was found, and no weapon was found in the surrounding area.

Appellant’s decision to flee the auto shop after the shooting – in a vehicle that

did not belong to him, and after removing the vehicle’s license plate – could

further suggest that Appellant himself knew that his use of deadly force was

not reasonable.

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Viewing these facts in a light most favorable to the Commonwealth, the

jury could have reasonably inferred that the victim did not have a weapon,

and that Appellant unreasonably believed the victim posed a deadly threat.

See Commonwealth v. White, 424 A.2d 1296, 1298 (Pa. 1981) (“Although

the evidence against appellant was not uncontradicted, the jury weighed the

testimony and this Court will not disturb its verdict: the Commonwealth’s

evidence was amply sufficient to support a verdict of voluntary manslaughter

while disproving, beyond a reasonable doubt, appellant’s claim of self-

defense.”).

Appellant’s third and final claim on appeal is that the trial court erred in

denying a missing witness instruction as to Leon Booker, the owner of the

auto shop where Appellant worked, and where the victim was shot.

At the outset, we note that this claim is waived for lack of a timely

objection. It is well-settled that a “specific and timely objection must be made

to preserve [a] challenge to [a] particular jury instruction[, and] failure to do

so results in waiver[.]” Commonwealth v. Forbes, 867 A.2d 1268, 1274

(Pa. Super. 2005) (citation omitted); see also See also Commonwealth v.

Pressley, 887 A.2d 220, 224 (Pa. 2005)("The pertinent rules [of Criminal

Procedure] . . . require a specific objection to the charge or an exception to

the trial court's ruling on a proposed point to preserve an issue involving a

jury instruction. "). “No portions of the charge nor omissions from the charge

• 13 - J-S39002-25

may be assigned as error, unless specific objections are made thereto before

the jury retires to deliberate.” Pa.R.Crim.P. 647(C).

In the case at hand, Appellant timely requested a missing witness

instruction as to Booker, contending that the witness had given a material

statement to investigating officers, and that the Commonwealth did not

attempt to produce him at trial despite being more available to the

Commonwealth than to Appellant. Appellant argued that Booker would have

testified that the victim was extremely angry and hostile during his fatal

encounter with Appellant; the witness could also have corroborated what

Appellant told him during the phone call with him about an hour after the

shooting took place.

The trial court specifically denied a missing witness instruction as to

Booker when it was requested. See N.T. Hearing, 5/15/2024, at 9 (“That's

respectfully denied.”). However, just prior to deliberations, after the trial

court read the instructions to the jury, the parties were prompted to voice any

concerns with the jury charges as given, and Appellant, through his counsel,

voiced satisfaction with them. See N.T. Trial, 5/15/2024, at 77. Thus,

Appellant did not preserve his present claim regarding the denial of the

instruction for purposes of appellate review. See id.

Even if Appellant had preserved his jury instruction claim, we would find

that it lacks merit. The denial of a jury instruction request is subject to an

abuse of discretion standard of review. See Commonwealth v. Galvin, 985

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A.2d 783, 798-99 (Pa. 2009). A missing witness instruction may be read to

the jury “when a potential witness is available to only one of the parties at

trial, it appears this witness has special information material to the issue, and

this person’s testimony would not merely be cumulative.” Commonwealth

v. Jones, 323 A.3d 13, 21 (Pa. Super. 2024) (quoting Commonwealth v.

Miller, 172 A.3d 632, 645 (Pa. Super. 2017)). The instruction advises the

jury that it may draw an adverse inference against the party who has failed

to produce the testimony of the unavailable witness. See Commonwealth

v. Manigault, 462 A.2d 239, 241 (Pa. 1983) (internal citations and quotation

marks omitted).

A witness is considered available only to one party if the witness is

“peculiarly within the knowledge and reach” of only one party.

Commonwealth v. Evans, 664 A.2d 570, 574 (Pa. Super. 1995). A witness

whose identity has been disclosed to the opposing party is considered

available to both parties. See Commonwealth v. Culmer, 604 A.2d 1090,

1098 (Pa. Super. 1992) ([Alleged missing witness], on the other hand, was

available to both parties, since her identity was made known to appellant.”).

A witness is considered available to both parties when both are aware

of the witness’s identity. See id.; see also Commonwealth v. Boyle, 733

A.2d 633, 639 (Pa. Super 1999). A missing witness instruction is not

warranted where the testimony of the witness would be cumulative of other

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evidence admitted at trial. See Commonwealth v. Berry, 513 A.2d 410,

414-15 (Pa. Super. 1986).

In the present case, the missing witness instruction was properly denied

because Booker was not peculiarly within the knowledge and reach of the

Commonwealth, and he did not possess any special information material to a

trial issue. Appellant had a personal relationship with Booker, but he did not

contact or subpoena him at his home to testify.1 The record shows that both

Appellant and the Commonwealth had equal access to Booker because both

parties knew his identity and had subpoena power as to that witness.

Appellant has argued that the Commonwealth had greater access to

Booker because, about two to three months prior to the trial, a detective told

Booker he would not be needed as a trial witness, and he could go on vacation.

See N.T. Trial, 5/14/2024, at 81-82.2 Regardless of that communication, the

record shows that Appellant remained in contact with Booker for months after

the detective told Booker he would not be called (by the Commonwealth) as

a trial witness. Further, the detective logically could only have been speaking

---

1 The defense unsuccessfully attempted to subpoena Booker at his place of
work.

2 Defense counsel called Britchett Meekins, Appellant’s father, to testify as to

his efforts in making contact with Booker. Meekins testified that he tried
contacting Booker about 15 to 20 times, and was only able to contact him on
the day of trial. See N.T. Trial, 5/14/2024, at 149. Meekins testified that
Booker informed him he would not be coming to court because the “DA didn’t
need him to come to Court to be present. So, he just – he planned a vacation.”
Id., at 150.

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as to the prosecution’s intent to call him as a witness, not to Appellant’s trial

strategy.

Indeed, defense counsel stated on the record that Booker had been in

regular contact until about three weeks before trial, at which point Booker

stopped taking defense counsel’s calls. See N.T. 5/14/2025, at 154. Thus,

the Commonwealth’s communications with Booker in no way reduced the

availability of that witness to Appellant; nor did it increase the

Commonwealth’s access to the witness at the expense of Appellant.

Even if Booker was more available to the Commonwealth than to

Appellant, the trial court still did not abuse its discretion in denying a missing

witness instruction because Booker’s testimony would have been both

cumulative and not germane to a material trial issue. Booker was not an eye-

witness to the shooting. The content of Booker’s account was largely

undisputed by the Commonwealth – Appellant and the victim were involved in

a heated argument about damage to the victim’s vehicle. Those same facts

were established by the surveillance video footage and Appellant’s own

testimony. The Commonwealth presumed the truth of Appellant’s testimony

about his phone call with Booker in order to impeach him, so corroboration of

what the two men discussed would have been cumulative. Thus, no relief is

due on Appellant’s jury instruction claim. Appellant’s judgment of sentence

must be upheld.

Judgment of sentence affirmed.

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Date: 3/26/2026

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