J-A17037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL MCLAUGHLIN,

Appellant No. 3453 EDA 2016

Appeal from the Judgment of Sentence March 21, 2016

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0007870-2015

BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED AUGUST 28, 2017

Appellant, Michael McLaughlin, appeals from the judgment of sentence 

imposed following his bench trial conviction of possessing an instrument of 

crime (PIC) and recklessly endangering another person (REAP).1 Appellant 

challenges the sufficiency and the weight of the evidence. Specifically, he 

claims the Commonwealth failed to disprove his claim of self-defense. We 

affirm. 

The certified record of this case confirms that the Honorable Joan 

Brown, who presided at the bench trial, is no longer sitting as a judge in 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The Court found Appellant not guilty of the other charges, aggravated 

assault, and simple assault. (See N.T. Trial, 3/21/16, at 44). 
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Philadelphia County; the record was forwarded to this Court without an 

opinion. 

We take the facts of the case from our independent review of the 

certified record. Appellant testified in his own defense. The victim, John 

Wallace, though present at trial, did not testify. There is no dispute that 

Wallace suffers from mental illness and has a diminished mental capacity; 

the record also confirms that he has a significant speech impediment. He 

receives social security benefits for his disabilities. 

On July 3, 2015, Appellant got into a physical altercation with Wallace, 

in the communal kitchen of the rooming house where they were both 

boarders. (See N.T. Trial, 3/21/16, at 6-11). 

Another tenant, Gloria Paolella, was present during the fight at issue. 

She testified for the Commonwealth.2 Ms. Paolella conceded on cross–

examination that in part because of his mental health issues, Wallace could 

sometimes be prone to violent outbursts. (See id. at 17). 

According to Appellant, the incident on the date in question began 

when Wallace brushed up against or bumped into him. Appellant was in the 

kitchen making a cup of lemonade for his wife. Appellant called Wallace a 

name (not otherwise specified) and threw the lemonade at him. 

____________________________________________

2 Ms. Paolella also testified she had known Wallace for fifteen to twenty 

years, and was the designated recipient for his social security disability 

benefits. 
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Wallace jumped up from his seat and held Appellant in some sort of 

bear hug.3 It appears that punches were exchanged. To free himself, 

Appellant struck Wallace repeatedly in the head with a ceramic cup, from 

Wallace’s crown to his forehead, until Wallace let go and fled outside onto 

the street. 

Neighbors saw him bleeding profusely. They called the police and 

emergency medical technicians. Wallace was hospitalized, and needed at 

least nine surgical staples to close the open wounds.4 

As noted, the trial court acquitted Appellant of both simple and 

aggravated assault, but convicted him of REAP and PIC. The court 

sentenced him to two consecutive two-year terms of reporting probation. 

(See Sentencing Order, 3/21/16). This nunc pro tunc appeal followed the 

denial of Appellant’s post-sentence motion, (which included a challenge to 

the weight of the evidence), by operation of law. 

Appellant raises two questions on appeal: 

I. Whether the trial court erred in finding the 

Commonwealth presented sufficient evidence to disprove 

Appellant’s claim of self-defense and convict Appellant of 

____________________________________________

3 Appellant claims that Wallace threw him against the wall.

4 Appellant testified that he also went to a (different) hospital emergency 

room for scrapes and contusions. (See N.T. Trial, at 35). Other than 

Appellant’s own testimony, there is no evidence of record concerning his 

injuries. (See id. at 6-15, 20-29). 
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[p]ossession of an [i]nstrument of [c]rime and [r]ecklessly 

[e]ndangering [a]nother [p]erson[?]

II. Whether the trial court erred in denying Appellant’s 

post-sentence motion for a new trial where the verdict was 

against the weight of the evidence because the Commonwealth 

failed to disprove Appellant’s claim of self-defense[?]

(Appellant’s Brief, at x).

Preliminarily, both Appellant’s sufficiency and weight claims rely 

predominantly on his contention that the Commonwealth failed to overcome 

his assertion of self-defense. (See id. at 1-12). Accordingly, we will 

address the self-defense claim first. 

Citing Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001), Appellant 

posits that once he met the burden to introduce some evidence of selfdefense, the Commonwealth had the burden to disprove self-defense beyond 

a reasonable doubt.5 (See Appellants Brief, at 1; passim). He argues that 

the Commonwealth failed to do so. We disagree.

____________________________________________

5 Notably, Appellant never made a formal, explicit claim of self-defense at 

trial. Self-defense is never mentioned. (See N.T. Trial, 3/21/16, at 1-49). 

His claim was implicit at best, consisting largely of trial testimony, repeated 

in the brief on appeal, that Wallace was a much larger, stronger man. 

Curiously, in light of his heavy reliance on self-defense in this appeal, at trial 

Appellant turned aside several suggestions from counsel to confirm that he 

was afraid of Wallace. (See, e.g., id. at 38, 42). Appellant would only 

concede that he was “concerned” about Wallace’s erratic behavior. (Id.). 

On these facts, we would have been open to consideration of whether 

Appellant had waived his claim of self-defense on appeal. However, because 

the Commonwealth concedes that Appellant made a claim of self–defense, 

(see Commonwealth’s Brief, at 7-18), albeit in the course of arguing against 

(Footnote Continued Next Page)
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The use of force against a person is justified when the 

actor believes that such force is immediately necessary for the 

purpose of protecting himself against the use of unlawful force 

by the other person. See 18 Pa.C.S. § 505(a). When a 

defendant raises the issue of self-defense, the Commonwealth 

bears the burden to disprove such a defense beyond a 

reasonable doubt. While there is no burden on a defendant to 

prove the claim, before the defense is properly at issue at trial, 

there must be some evidence, from whatever source, to justify a 

finding of self-defense. If there is any evidence that will support 

the claim, then the issue is properly before the fact finder. 

Torres, supra at 345. (case citations omitted). 

(a) Use of force justifiable for protection of the 

person.─The use of force upon or toward another person is 

justifiable when the actor believes that such force is immediately 

necessary for the purpose of protecting himself against the use 

of unlawful force by such other person on the present occasion.

18 Pa.C.S.A. § 505(a).

The Commonwealth sustains this burden [to disprove selfdefense] if it establishes at least one of the following: 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) (citations 

omitted) (emphasis added). “In reviewing a claim based upon the 

sufficiency of the evidence, the appellate court must view all the evidence in 

the light most favorable to the verdict winner, giving that party the benefit 

(Footnote Continued) _______________________

it, we will give him the benefit of the doubt and review his self-defense claim 

on the merits. 
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of all reasonable inferences to be drawn therefrom.” Torres, supra at 344 

(citation omitted). 

Here, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, we conclude that the trial court, sitting as 

factfinder, was free to accept Ms. Paolella’s testimony as evidence that 

Appellant escalated a verbal encounter into a physical assault when he threw 

the lemonade at Wallace. (See N.T. Trial, at 9). 

In fact, despite Appellant’s testimony that Wallace started the physical 

confrontation, at oral argument counsel for Appellant conceded the throwing 

of the lemonade at Wallace by Appellant. Therefore, viewed in the light 

most favorable to the Commonwealth, the trial court had sufficient evidence 

(confirmed on appeal) to infer that Appellant by his own actions provoked or 

continued the use of force by Wallace. 

Appellant’s provocation is particularly noteworthy in light of his trial 

testimony that he was especially concerned about a physical fight with 

Wallace, owing to his own brain surgery in 1992. (See id. at 34, 36). 

Furthermore, he repeatedly described Wallace as a significantly larger man, 

who had “super human” strength. (Id. at 34). 

Drawing all reasonable inferences in favor of the Commonwealth as 

verdict winner, we have no hesitation in concluding that the trial court 

properly determined that Appellant failed to prevail on his claim of selfdefense. The trial court sitting as fact finder had ample evidence to 
J-A17037-17

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conclude that Appellant was the aggressor who provoked Wallace by 

throwing lemonade on him, and who used excessive force to repel Wallace 

when Wallace responded. Appellant’s self-defense claims would not merit 

relief. 

Moreover, Appellant’s challenges to sufficiency and weight would also 

fail. Our standard of review for a claim against the sufficiency of the 

evidence is well-settled. 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying [the above] test, 

we may not weigh the evidence and substitute our judgment for 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

[finder] of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe all, 

part or none of the evidence.

Smith, supra at 790 (citation omitted). 

Here, Appellant first challenges the sufficiency of the evidence for his 

conviction of PIC. (See Appellant’s Brief, at 1-3). 

“A person commits a misdemeanor of the first degree if he possesses 

any instrument of crime with intent to employ it criminally.” 18 Pa.C.S.A. § 
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907(a). Instruments of crime include “[a]nything used for criminal 

purposes and possessed by the actor under circumstances not manifestly 

appropriate for lawful uses it may have.” Id. at 907(d) (emphasis added).

Appellant argues, erroneously and without supporting authority, that 

“the cup was not a weapon.” (Appellant’s Brief, at 12). We disagree.

“A deadly weapon need not be, of course, an inherently lethal 

instrument or device.” Commonwealth v. McCullum, 602 A.2d 313, 323 

(Pa. 1992) (noting an ax, baseball bat, iron bar, heavy cuspidor, and even a 

bedroom slipper have been held to constitute deadly weapons); see also

Commonwealth v. Chambers, 157 A.3d 508, 518 (Pa. Super. 2017) 

(mace/pepper spray held to be an instrument of crime, noting that egg 

thrown from a roof at windshield, clothes iron, paint stick also held to be 

instruments of crime) (collecting cases). 

In this case, Appellant used the cup he was carrying as a blunt force 

object to inflict multiple wounds on Wallace’s head causing profuse bleeding 

which required hospitalization and at least nine surgical staples to close the 

wounds up. Appellant’s PIC claim fails. 

Appellant also challenges the sufficiency of the evidence for REAP. 

(See Appellant’s Brief, at x).

A person commits a misdemeanor of the second degree if 

he recklessly engages in conduct which places or may place 

another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705. 
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However, apart from the unsuccessful self-defense claim, Appellant 

fails to develop an independent argument supported by pertinent authority 

of the insufficiency of the evidence for the REAP conviction. (See 

Appellant’s Brief, at 1-16). Accordingly, that claim is waived. See Pa.R.A.P. 

2119(a), (b). 

Moreover, the claim would not merit relief. The trial court had ample 

evidence from which to conclude that Appellant inflicted multiple wounds to 

Wallace’s head, putting him in danger of serious bodily injury or death. 

Even if it were not waived for failure of development, under our standard of 

review, Appellant’s challenge to the sufficiency of the evidence for REAP 

would not merit relief.

Additionally, Appellant challenges the weight of the evidence. (See

Appellant’s Brief, at 14-15). He argues that the trial court’s verdict shocks 

the conscience. (See id. at 15). We disagree. 

For this Court to reverse the jury’s verdict on weight of the 

evidence grounds, we must determine that the verdict is so 

contrary to the evidence as to “shock one’s sense of justice.” 

Our standard of review of a weight of the evidence claim is wellsettled.

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question of 

whether the verdict is against the weight of the evidence. 

Because the trial judge has had the opportunity to hear 

and see the evidence presented, an appellate court will 

give the gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial court’s 

determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for 

granting or denying a new trial is the lower court’s 
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conviction that the verdict was or was not against the 

weight of the evidence and that a new trial should not be 

granted in the interest of justice.

Commonwealth v. Hitner, 910 A.2d 721, 733 (Pa. Super. 2006), appeal 

denied, 926 A.2d 441 (Pa. 2007) (citation omitted) (emphasis added).

[A] challenge [to the weight of the evidence] concedes that 

sufficient evidence was adduced to convict the defendant but 

that the verdict must nevertheless be overturned because the 

evidence was untrustworthy and unreliable. It is not the 

function of an appellate court, which has only the cold record to 

review, to determine whether the evidence was credible. 

Commonwealth v. Gaskins, 692 A.2d 224, 228 (Pa. Super. 1997) 

(citations omitted).

Preliminarily, we observe that Appellant’s weight claim, like his 

sufficiency claim, is premised primarily on his claim of self-defense. (See 

Appellant’s Brief, at 15). It fails for the same reason. 

Moreover, aside from a brief introductory citation to cases for general 

principles of law not in dispute, Appellant does not develop an argument that 

the trial court abused its discretion, or present controlling authority in 

support of his specific weight claim. 

Instead, Appellant merely engages in a self-serving review of the 

evidence, without citation to the record or pertinent authority, to reach the 

conclusion that the court’s verdict shocks the conscience. (See id. at 14-

16). We decline the invitation to an impermissible re-weighing of the 

evidence. The learned trial court’s verdict (which gave Appellant the benefit 
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of an acquittal on both simple and aggravated assault), does not shock the 

conscience of this Court. Appellant’s weight claim would not merit relief.

Finally, we note that Appellant purports to challenge the terms of his 

sentence of probation. (See Appellant’s Brief, at 16). Appellant’s claim is 

waived and would not merit relief. 

First, Appellant omitted this claim from his Statement of Questions 

Involved. (See Appellant’s Brief, at x). Accordingly, he failed to preserve 

his issue under our rules of appellate procedure. See Pa.R.A.P. 2111(a)(4); 

Pa.R.A.P. 2116 (“No question will be considered unless it is stated in the 

statement of questions involved or is fairly suggested thereby.”). Nor did 

Appellant raise this claim in his post-sentence motion, or afterward when the 

sentence transcript became available. See Pa.R.Crim.P. 720(A)(1); (see 

also Post Sentence Motion, 3/31/16, at unnumbered pages 1-2). 

Moreover, his claim of a discrepancy between the term of probation 

announced after trial and the term in the sentencing order would not merit 

relief. 

In Pennsylvania, the text of the sentencing order, and not the 

statements a trial court makes about a defendant’s sentence, is 

determinative of the court’s sentencing intentions and the 

sentence imposed. As we have stated, the “signed sentencing 

order, if legal, controls over oral statements of the sentencing 

judge not incorporated into the signed judgment of sentence.” 

Commonwealth v. Isabell, 503 Pa. 2, 12, 467 A.2d 1287, 

1292 (1983) (internal quotation marks and citations omitted) 

. . . .
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Commonwealth v. Borrin, 80 A.3d 1219, 1226–27 (Pa. 2013) (some 

citations omitted).

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2017