J-S65012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVON L. SMITH

Appellant No. 1717 WDA 2015

Appeal from the Judgment of Sentence September 14, 2015

In the Court of Common Pleas of Blair County

Criminal Division at No(s): CP-07-CR-0001619-2014

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 06, 2016

Davon L. Smith appeals from the judgment of sentence entered in the 

Court of Common Pleas of Allegheny County. After careful review, we 

affirm.

 The trial court made the following factual findings: 

Patrolman William T. Hanelly, Jr. testified that on 

June 7, 2014 he responded to a call at which he met 

Adamec Stevens and John McConnell. Adamec 

Stevens identified himself as the victim. He had 

blood coming out of his mouth and bruises on his 

face. He was being treated by emergency medical 

providers. Mr. Stevens indicated that a man named 

‘Flip’ had assaulted him. Patrolman Hanelly 

identified Davon Smith as ‘Flip.’ 

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* Retired Senior Judge assigned to the Superior Court.
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Adamec Stevens testified that on June 7, 2014 he 

was at the Monkey Wharf bar in Altoona. He glanced 

up at a camera in the bar and saw a dispute going 

on outside. Someone ran into the bar asking for 

help. Mr. Stevens testified that ‘Flip’ and his 

girlfriend were involved in the dispute. Mr. Stevens 

went outside to try to help break up the dispute. 

The individual Mr. Stevens knew as ‘Flip’ left and 

returned a short time later and began hitting Mr. 

Stevens. Mr. Stevens testified he felt that his 

assailant was hitting him with something harder than 

just his fists.

Mr. Stevens further testified that after the assault 

‘Flip,’ later identified as Mr. Smith, asked him to tell 

the District attorney that he had pulled a knife on 

him at the time of the assault. He asked Mr. 

Stevens for his cell phone number and Mr. Stevens 

gave him a made up number. After that, several 

acquaintances approached Mr. Stevens and told him 

that ‘Flip’ knew it was a fake number and he ‘was 

done for.’ 

Patrolman Ryan Caputo obtained video surveillance 

from the Monkey Wharf bar that showed the 

incident. The video shows Mr. Stevens attempting to 

mediate an altercation between a female named 

Whitney and Mr. Smith. Mr. Smith leaves the area 

for approximately two and a half minutes. He then 

returns and punches the victim twice before the 

victim falls into a white car and then to the ground. 

Mr. Smith continues to punch Mr. Stevens while he is 

on the ground and kicks him in the head.

Mr. Smith described the activities shown on the 

surveillance video. He indicated that Mr. Stevens 

challenged him while they were outside so he went 

back into the bar. He testified that his wife’s friend 

came in and told him to come back outside because 

Mr. Stevens’ friend was arguing with Mr. Smith’s 

wife. Mr. Smith testified that he went back outside 

and called a cab. From where he was standing he 

could see Mr. Stevens touch his wife. Mr. Smith 

testified that he thought Mr. Stevens had a knife and 
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Mr. Smith had just been stabbed so he was a little 

more aggressive than he would have been otherwise. 

Trial Court Opinion, 1/13/2016, at 2-6. 

Smith was charged with one count of aggravated assault1, one count 

of simple assault2and one count of harassment.3 On August 6, 2015, a jury 

found Smith guilty of all three counts. The Honorable Elizabeth A. Doyle 

sentenced Smith to 10 to 20 years’ incarceration for count 1 and merged 

counts 2 and 3 into count 1 for purposes of sentencing. Smith filed a motion 

to reconsider his sentence on September 22, 2015, and Judge Doyle denied 

his post-sentence motion on September 28, 2015. Smith then filed a timely 

notice of appeal on October 28, 2015. On October 29, 2015, the trial court 

directed Smith to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. Judge Doyle filed her Rule 1925(a) opinion on 

January 13, 2016.

Smith raises the following issues on appeal:

1. Whether the trial court erred by overruling Appellant’s 

hearsay objection at trial where the evidence at trial tended 

to show that the statements were inadmissible hearsay under 

Pa.R.E. 801 which did not fall under any exceptions to the 

hearsay rule to permit its admission. 

2. Whether the trial court erred by refusing to give Suggested 

Standard Jury Instruction 9.502, Justification: use of 

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1 18 Pa.C.S. § 2702(a)(1).

2 18 Pa.C.S. § 2701(a)(1).

318 Pa.C.S. § 2709(a)(1).
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force/deadly force in defense of others, where the evidence at 

trial tended to show that Appellant justifiably believed that 

the use of force was immediately necessary for the protection 

of his wife, Whitney Smith. 

Appellant’s Brief, at 4.

In his first issue, Smith contends that the trial court abused its 

discretion when it admitted Stevens’ testimony that six acquaintances of 

Smith approached Stevens in the Blair County Jail and said that “[Smith] 

had found out that it’s a false number and that [Stevens] was done for.” 

N.T. Trial, 8/5/15, at 78. 4 While the Commonwealth maintains Stevens’ 

testimony was admissible under the co-conspirator exception to the hearsay 

rule, see Pa.R.E. 803(25)(e),5 Smith argues that the testimony is 

inadmissible under the hearsay exception because the Commonwealth failed 

to present sufficient evidence that a conspiracy existed. Appellant’s Brief, at 

9. Smith also suggests that the “Commonwealth failed to provide a reason 

for the unavailability of the ‘acquaintances.’” Id. at 18.

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4

“Our standard of review relative to the admission of evidence is for an 

abuse of discretion.” Commonwealth v. Feliciano, 67 A.3d 19, 27 (Pa. 

Super. 2013).

5 A statement offered against an opposing party that was made by the 

party's co-conspirator during and in furtherance of the conspiracy is not 

hearsay. The statement may be considered but does not by itself establish 

the existence of the conspiracy or participation in the conspiracy. This rule 

applies regardless of whether the declarant is available as a witness. See

Pa.R.E. 803(25)(e).
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“Only slight evidence of the conspiracy is needed for a co-conspirator's 

statement to be introduced and the order of proof is discretionary.” 

Feliciano, 67 A.3d at 27. To prove a criminal conspiracy,

[t]he Commonwealth must establish that the 

defendant (1) entered into an agreement to commit 

or aid in an unlawful act with another person or 

persons, (2) with a shared criminal intent, and (3) 

an overt act done in furtherance of the conspiracy. 

Circumstantial evidence may provide proof of the 

conspiracy. The conduct of the parties and the 

circumstances surrounding such conduct may create 

a web of evidence linking the accused to the alleged 

conspiracy beyond a reasonable doubt.

Additionally, an agreement can be inferred from a 

variety of circumstances including, but not limited to, 

the relation between the parties, knowledge of and 

participation in the crime, and the circumstances and 

conduct of the parties surrounding the criminal 

episode. These factors may coalesce to establish a 

conspiratorial agreement beyond a reasonable doubt 

where one factor alone might fail. 

Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa. Super. 2005).

Hearsay statements made by a co-conspirator are 

allowed to be admitted against an accused if the 

statements are made during the conspiracy, in 

furtherance thereof, and where there is other 

evidence of the existence of a conspiracy. This 

exception applies even where no party has been 

formally charged with conspiracy. Nor need the coconspirator, whose declaration is testified to, be on 

trial. To lay a foundation for the co-conspirator 

exception to the hearsay rule, the Commonwealth 

must prove that: (1) a conspiracy existed between 

declarant and the person against whom the evidence 

is offered, and (2) that the statement sought to be 

admitted was made during the course of the 

conspiracy. 
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Commonwealth v. Basile, 458 A.2d. 587, 590 (Pa. Super. 1983). 

The Commonwealth presented sufficient circumstantial evidence that a 

conspiracy existed to intimidate Stevens.6 Stevens testified that Smith 

“asked [Stevens] to contact the District Attorney to let them know that 

[Stevens] pulled a knife on [Smith] that night and that’s why [Smith] hit 

[Stevens].” N.T. Trial, 8/5/15, at 74. Stevens also testified that Smith 

asked Stevens for his cell phone number, and Stevens gave Smith a fake 

number. Id. at 74.

The trial court found that “circumstantially, there must have been at 

least a conversation between the ‘acquaintances’ and Smith indicating that 

Stevens had given Smith a fake number. The fact that six different 

acquaintances approached Stevens is circumstantial evidence of Smith’s 

determination to convey a threat to Stevens.” Trial Court Opinion, 1/13/16, 

14-15. The Commonwealth presented testimonial evidence that Smith 

approached Stevens about lying to the District Attorney and asked for 

Stevens’ phone number. This testimony, considered with Stevens’ testimony

that multiple individuals approached Stevens to both threaten him and tell 

him that Smith knew about the fake number, is sufficient to prove that 

____________________________________________

6 The Commonwealth argues that the “confrontation and subsequent threat 

[that] Mr. Stevens was ‘done for’ clearly fits the description of retaliation 

and/or intimidation of a witness and required [Smith’s] knowledge the 

number was fake.” Appellee’s Brief, at 7; 18 Pa.C.S. § 4952; 18 Pa.C.S. § 

4953.
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Stevens conspired with more than one individual to intimidate Smith. See 

Feliciano, supra. The acquaintances would not have known about the fake 

number unless Smith had a conversation with the acquaintances about the 

fake number.7

With regard to Smith’s second issue, he argues that the trial court 

erred by refusing to give the standard jury instruction on the use of deadly 

force in defense of others.8 According to the trial court, the court “declined 

to give the instruction based on the totality of the testimony. Smith’s 

testimony indicated that he and the victim had a previous altercation and 

that he became increasingly agitated because he thought that Stevens was 

getting in his wife’s face.” Trial Court Opinion, 1/13/16, at 15-16. 

____________________________________________

7 Additionally, the out-of-court statement does not implicate the 

Confrontation Clause because the statement had a strong indicia of 

reliability. The acquaintances had no reason to lie to Stevens about the fake 

number or the threat. See Commonwealth v. Coccioletti, 425 A.2d 387, 

391 (Pa. 1981) (confrontation clause not violated whenever declarations had 

strong ‘indicia of reliability’); see also Dutton v. Evans, 400 U.S. 74, 89 

(1970).

8

Pa.S.S.J.I. § 9.502; see also 18 Pa.C.S. § 506 (“The use of force upon or 

toward the person of another is justifiable to protect a third person when: 

(1) the actor would be justified under section 505 (relating to use of force in 

self-protection) in using such force to protect himself against the injury he 

believes to be threatened to the person whom he seeks to protect; (2) under 

the circumstances as the actor believes them to be, the person whom he 

seeks to protect would be justified in using such protective force; and (3) 

the actor believes that his intervention is necessary for the protection of 

such other person.”).
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This Court has stated: “[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. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) 

(citations omitted), appeal granted on other grounds, 35 A.3d 3 (Pa. 2012). 

Further, we must determine “whether such charge was warranted by the 

evidence in the case.” Commonwealth v. Boyle, 733 A.2d 633, 639 

(1999). Additionally, “it has long been the rule in this Commonwealth that a 

trial court should not instruct the jury on legal principles which have no 

application to the facts presented at trial.” Commonwealth v. 

Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. 2014). 

According to Smith, he believed Stevens provoked him and was 

“touching on [Smith’s] wife.” N.T. Trial, 12/18/15, at 62. The only evidence 

presented suggesting that Smith was defending his wife, however, was 

Smith’s testimony. Testimony from Patrolman Ryan Caputo of the Altoona 

Police Department, the video surveillance evidence obtained from the 

Monkey Wharf Bar, as well as testimony from Whitney Smith, Smith’s wife, 

overwhelmingly corroborated the victim’s account of the events as they 

transpired on June 6, 2014 and June 7, 2014. See Appellee’s Brief, at 11-

12. The evidence presented did not support a jury instruction on the use of 

deadly force in defense of others, and therefore, we find no abuse of 

discretion. 
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Judgment of sentence affirmed. 

PLATT, J., joins the memorandum.

OLSON, J., concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016