J-A17003-14

2014 PA Super 165 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

JAMAR SMITH 

 Appellant No. 663 EDA 2013 

Appeal from the Judgment of Sentence January 31, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003587-2012 

BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

OPINION BY GANTMAN, P.J.: FILED AUGUST 06, 2014 

 Appellant, Jamar Smith, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following his 

bench trial conviction for aggravated assault, recklessly endangering another 

person and possession of an instrument of crime.1

 We affirm. 

 The trial court opinion sets forth the relevant facts and procedural 

history of this appeal as follows: 

At a waiver trial, the Commonwealth presented the 

testimony of Complainant, James Kedra, Philadelphia 

Police Officer, Robert Bakos, and Northeast Detective, 

Robert Schill. Additionally, they admitted into evidence 

photos, medical records, bloody clothing and a box cutter, 

and a 911 audiotape, which captured a portion of the 

incident between Appellant and [Mr. Kedra]. 

____________________________________________ 

1

 18 Pa.C.S.A. §§ 2702(a), 2705, and 907(a), respectively. 
J-A17003-14

- 2 - 

On February 29, 2012, at approximately 11:15 p.m., an 

altercation occurred on the 3400 block of Aldine Street, on 

the corner of Aldine and Leon, in the city and county of 

Philadelphia. [Mr. Kedra] believed Appellant was following 

him in his vehicle. Both men parked their vehicles; 

Appellant’s vehicle was originally behind Mr. Kedra’s, but 

Mr. Kedra later moved his vehicle to be further away from 

Appellant. At the same time that Mr. Kedra left his 

vehicle, Appellant also left his, and a conversation between 

the two men ensued. Although Mr. Kedra wanted to avoid 

Appellant, the two were forced to cross paths because of

the position of their cars, and Mr. Kedra wanted to make 

sure that Appellant was not behind him while walking. Mr. 

Kedra asked Appellant why he had been following him,

whereupon Appellant took a fighting stance, only to then 

strike Mr. Kedra in his forehead and lip. Mr. Kedra saw an 

object in Appellant's hand, and believing that Appellant 

was going to stab him, Mr. Kedra used his arm to try and 

prevent any contact; the altercation was pushed closer to

a nearby fence. The two then spun into a car, as Mr. 

Kedra tried to get Appellant off of him. Despite Mr. 

Kedra’s attempts to block Appellant's advances, [Mr. 

Kedra] was stabbed several times with a box cutter. Mr. 

Kedra sustained injuries to his forehead and lip, had a

piece taken out of his ear, and had stab wounds in the 

back of his head and in his back. The fight was brief and 

only lasted for a few minutes, however, Appellant 

apparently had threatened to kill Mr. Kedra during the 

confrontation. Several others, including Mr. Kedra’s 

friends, arrived at the scene in the midst of the altercation. 

Appellant’s mother heard the commotion between the two 

men and called the police to the scene. Officers Quinn and 

Bakos were on duty at 3400 Aldine Street and responded 

to a person with a weapon. As the officers approached, 

Officer Balms observed several unidentified males, 

Appellant’s mother, and Mr. Kedra, who was covered in 

blood. Officer Bakos inquired as to what had occurred,

placed Appellant in the police car, and found the box cutter 

that Appellant admitted to having used to stab Mr. Kedra. 

Mr. Kedra was then taken to the hospital to be treated for 

multiple lacerations to his face, including his head, mouth 

area, puncture wounds to the back and a stab wound to
J-A17003-14

- 3 - 

the chest. Appellant was arrested by Officer Bakos and 

secured in the back seat of the police car. During trial, 

Appellant made out a vague claim of self-defense and that 

he was not the initial aggressor, however, these claims 

were [ultimately] found not credible by this court. 

(Trial Court Opinion, filed December 16, 2013, at 2-4) (internal citations to 

the record omitted). The court sentenced Appellant to five (5) years’

probation on January 31, 2013. Appellant did not file any post-sentence 

motions. Appellant timely filed a notice of appeal on February 27, 2013, and 

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b) on March 1, 2013. 

 Appellant raises the following issues for our review: 

DID THE TRIAL COURT ERR BY APPLYING THE WRONG 

BURDEN OF PROOF IN THIS SELF-DEFENSE CASE WHEN IT 

ASSESSED THE EVIDENCE AND REACHED ITS VERDICT 

FINDING [APPELLANT] GUILTY OF AGGRAVATED ASSAULT, 

RECKLESSLY ENDANGERING ANOTHER PERSON, AND 

POSSESSION OF AN INSTRUMENT OF CRIME? 

WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW 

TO DISPROVE SELF-DEFENSE BEYOND A REASONABLE 

DOUBT BECAUSE THE EVIDENCE DID NOT CLEARLY 

DEMONSTRATE THAT [APPELLANT’S] RESPONSE IN USING 

A BOX CUTTER TO PROTECT HIMSELF WAS 

UNREASONABLE UNDER THE CIRCUMSTANCES? 

(Appellant’s Brief at 4). 

 In his first issue, Appellant argues he has no obligation to prove his 

claim of self-defense. Rather, the law requires him to provide only some 

evidence of self-defense, and the Commonwealth must prove beyond a 

reasonable doubt that the claim lacks merit. Appellant contends the court 
J-A17003-14

- 4 - 

erroneously shifted the burden of proof to Appellant when the court 

evaluated his claim of self-defense. Appellant points to his timely objection 

during closing arguments when this error occurred, but insists the court did 

not correct the mistake. Appellant cites the court’s Rule 1925(a) opinion as 

evidence of the probable error, where the court omits explanation of why it 

did not take corrective action in the face of Appellant’s objection. Appellant 

blames the court’s use of improper standards for this erroneous rejection of 

Appellant’s self-defense claim. Appellant concludes the trial court erred as a 

matter of law in evaluating the evidence, and this Court should vacate the 

judgment of sentence and remand for a new trial. We disagree. 

 The Pennsylvania Crimes Code governs self-defense in relevant part as 

follows: 

§ 505. Use of force in self-protection 

(a) Use of force justifiable for protection of the 

person.ろ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 necessary to protect himself against death, serious 

bodily injury, kidnapping or sexual intercourse 

compelled by force or threat; nor is it justifiable if: 
J-A17003-14

- 5 - 

(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....

* * * 

(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.A. § 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(a)-(b) (emphasis added).2

 According to our Supreme 

____________________________________________ 

2

 Section 505 was amended, effective August 29, 2011, to add 

Pennsylvania’s “stand your ground” law, which was before the date of the 

(Footnote Continued Next Page) 
J-A17003-14

- 6 - 

Court, the justified use of deadly force requires: 

a) the actor was free from fault in provoking or continuing 

the difficulty which resulted in the use of deadly force; b) 

the actor must have reasonably believed that he was in

imminent danger of death or serious bodily injury, and that 

there was a necessity to use such force in order to save 

himself or others therefrom; and c) the actor did not 

violate any duty to retreat or to avoid the danger.

Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172, 1174 (1995). 

The defendant has no “burden to prove” his self-defense claim. 

Commonwealth v. Torres, 564 Pa. 219, 224, 766 A.2d 342, 345 (2001). 

The Supreme Court explained the evidentiary burdens as follows: 

While there is no burden on a defendant to prove the [selfdefense] claim, before that 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. 

Id. (internal citations omitted). See also Commonwealth v. Bullock, 948 

A.2d 818, 824 (Pa.Super. 2008) (stating same standard). If the defendant 

properly raises “self-defense under Section 505 of the Pennsylvania Crimes 

Code, the burden is on the Commonwealth to prove beyond a reasonable 

doubt that the defendant’s act was not justifiable self-defense.” 

Commonwealth v. McClendon, 874 A.2d 1223, 1229-30 (Pa.Super. 

2005). 

(Footnote Continued) _______________________ 

incident (February 29, 2012). Therefore, the 2011 amendment to Section 

505 applies to this case. 
J-A17003-14

- 7 - 

The Commonwealth sustains this burden 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. Hammond, 953 A.2d 544, 559 (Pa.Super. 2008), 

appeal denied, 600 Pa. 743, 964 A.2d 894 (2009) (quoting McClendon, 

supra at 1230). The Commonwealth must establish only one of these three 

elements beyond a reasonable doubt to insulate its case from a self-defense 

challenge to the evidence. Commonwealth v. Burns, 765 A.2d 1144, 

1149 (Pa.Super. 2000), appeal denied, 566 Pa. 657, 782 A.2d 542 (2001). 

The Commonwealth can negate a self-defense claim if it proves the 

defendant did not reasonably believe he was in imminent danger of death or 

great bodily injury and it was necessary to use deadly force to save himself 

from that danger. Commonwealth v. Sepulveda, 618 Pa. 262, ___, 55 

A.3d 1108, 1124 (2012). 

The requirement of reasonable belief encompasses two 

aspects, one subjective and one objective. First, the 

defendant must have acted out of an honest, bona fide 

belief that he was in imminent danger, which involves 

consideration of the defendant’s subjective state of mind. 

Second, the defendant’s belief that he needed to defend 

himself with deadly force, if it existed, must be reasonable 

in light of the facts as they appeared to the defendant, a 

consideration that involves an objective analysis. 

Commonwealth v. Mouzon, 617 Pa. 527, 551, 53 A.3d 738, 752 (2012). 

As the Mouzon Court observed, the use of deadly force itself “cannot be 

viewed in isolation with [the victim] as the sole physical aggressor and [the 
J-A17003-14

- 8 - 

defendant] acting in responsive self-defense. [T]his would be an incomplete 

and inaccurate view of the circumstances for self-defense purposes.” Id. at 

549, 53 A.3d at 751. To claim self-defense, the defendant must be free 

from fault in provoking or escalating the altercation that led to the offense, 

before the defendant can be excused from using deadly force. Id.

(emphasis added). Likewise, the Commonwealth can negate a self-defense 

claim by proving the defendant “used more force than reasonably necessary 

to protect against death or serious bodily injury.” Commonwealth v. 

Truong, 36 A.3d 592, 599 (Pa.Super. 2012) (en banc). 

When the defendant’s own testimony is the only evidence of selfdefense, the Commonwealth must still disprove the asserted justification and 

cannot simply rely on the jury’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.” The 

trial court’s statement that it did not believe Appellant’s 

testimony is no substitute for the proof the Commonwealth 

was required to provide to disprove the self-defense claim. 

Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa.Super. 2003) 

(quoting Torres, supra). If there are other witnesses, however, who 

provide accounts of the material facts, it is up to the fact finder to “reject or 

accept all, part or none of the testimony of any witness.” Commonwealth 

v. Gonzales, 609 A.2d 1368, 1370 (Pa.Super. 1992). The complainant can 

serve as a witness to the incident to refute a self-defense claim. Reynolds, 

supra. See also Commonwealth v. Hall, 574 Pa. 233, 242, 830 A.2d 
J-A17003-14

- 9 - 

537, 542-43 (2003) (holding defendant’s own testimony that shooting was 

accidental was ineffective because there was adequate circumstantial 

evidence to prove he pointed gun in direction of victim and discharged it). 

“Although the Commonwealth is required to disprove a claim of self-defense 

arising from any source beyond a reasonable doubt, a [fact-finder] is not 

required to believe the testimony of the defendant who raises the claim.” 

Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.Super. 2008). 

 A number of factors, including 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, are 

all relevant when determining the reasonableness of a defendant’s belief 

that the use of deadly force was necessary to protect against death or 

serious bodily injuries. See Commonwealth v. Soto, 657 A.2d 40 

(Pa.Super. 1995) (concurring opinion by Olszewski, J.) (collecting cases for 

this general proposition). No single factor is dispositive. Id. Furthermore, 

a physically larger person who grabs a smaller person does not automatically 

invite the smaller person to use deadly force in response. Commonwealth 

v. Hill, 629 A.2d 949 (Pa.Super. 1993). 

 Finally, a trial court, acting as the finder of fact, is presumed to know 

the law, ignore prejudicial statements, and disregard inadmissible evidence. 

Commonwealth v. Dent, 837 A.2d 571 (Pa.Super. 2003). 
J-A17003-14

- 10 - 

 In the instant case, the trial court reasoned: 

Although Appellant contends that the trial court erred in 

placing upon him the burden of proving self-defense, the 

burden did not shift from the Commonwealth throughout 

the trial. Once the issue of self-defense had been vaguely 

raised by Appellant, the Commonwealth sustained its 

burden of proof by demonstrating beyond a reasonable

doubt that Appellant did not reasonably believe that he 

was in danger of death or serious bodily injury and that his 

response was improper. Even if Appellant feared Mr. 

Kedra, the court found that Appellant’s use of deadly force, 

after he claimed Mr. Kedra had pushed him, was 

unwarranted and unreasonable. 

Despite the fact that the court believed Appellant’s 

character evidence, this does not negate the fact that the 

court ultimately found Appellant’s response in this situation 

to be completely inappropriate and that the use of a 

deadly weapon in the altercation was unreasonable. Based 

upon all of the evidence, the court concluded that 

[Appellant] could not have reasonably believed that he was 

in imminent danger of serious bodily injury, in order to 

justify the use of a box cutter, where there was no threat 

of deadly force. Therefore, the Commonwealth satisfied its 

burden by establishing that the accused did not reasonably 

believe that he was in danger of death or serious bodily 

injury. 

(Trial Court Opinion at 5). We agree. The court found Mr. Kedra’s 

testimony was more credible than Appellant’s testimony. The trial court, as 

trier of fact, decided the evidence proved beyond a reasonable doubt that 

Appellant unreasonably escalated the altercation when he attacked Mr. 

Kedra with a box cutter. This finding is consistent with the proper burdens 

of claiming and disproving self-defense. Drawing all reasonable inferences 

from the evidence viewed in the light most favorable to the Commonwealth, 

we conclude the trial court applied the correct standards and there was no 
J-A17003-14

- 11 - 

improper shifting of burdens. Appellant’s reliance on Commonwealth v. 

Eberle, 474 Pa. 548, 379 A.2d 90 (1977) is misplaced. See id. (stating 

mere threat of imminent attack from larger, drunken, and violent individual 

can justify use of deadly force; pattern of destructive or abusive behavior 

could justify use of deadly force for purposes of self-defense against larger 

person in drunken rage). Here, we see no evidence that Mr. Kedra was in a 

drunken rage, or that he had a history of abusing Appellant, such that 

Appellant reasonably felt justified in using a response that escalated the 

encounter. Finally, we observe that the trial court sitting as trier of fact is 

presumed to know the law and correctly apply the burden of proof. See 

Dent, supra. Nothing in this record indicates the contrary. Accordingly, 

Appellant’s first issue merits no relief. 

 In his second issue, Appellant asserts the Commonwealth failed to 

disprove Appellant acted in self-defense. Specifically, Appellant claims that 

as a 130-pound, 18-year-old high school student, he reasonably feared 

serious bodily injury when a 215-pound, 28-year-old man (who had been 

drinking) unexpectedly accosted Appellant as he returned home after work, 

late at night. Appellant maintains the court mischaracterized the incident as 

a mere “fistfight” when it ignored the many real dangers associated with 

violent encounters on the street during the late hours of the night. 

Appellant argues the Commonwealth failed to prove Appellant did not 

reasonably believe he was in imminent danger of death or serious bodily 
J-A17003-14

- 12 - 

harm as a matter of law, given the disparity in weight between Appellant 

and the complainant and the time of night. Appellant concludes this Court 

should vacate the convictions/sentence and discharge him. We disagree. 

Appellant’s challenge to the sufficiency of the evidence implicates the 

following principles: 

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. 

Commonwealth v. Barnswell Jones, 874 A.2d 108, 120-21 (Pa.Super. 

2005) (quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

Instantly, in response to Appellant’s sufficiency challenge, the court 

stated: 

In this case, the evidence presented at trial was sufficient 
J-A17003-14

- 13 - 

to convict Appellant of possession of an instrument of 

crime and recklessly endangering another person. 

Although both sides presented evidence, the testimony of

Mr. Kedra, Officer Bakos, and Detective Schill was found to 

be credible and believable. Although all versions 

presented by the witnesses were fairly consistent, this 

court found the evidence presented by the Commonwealth

to be dispositive. Even though the court did believe the 

character evidence presented by Appellant, this does not 

change the fact that there was sufficient evidence to find 

that Appellant had not acted reasonably in this situation 

and had escalated a physical altercation into deadly 

violence. Furthermore, the second prong of Appellant’s 

contention has previously been addressed here, where his 

actions were found to be unjustified for the situation. 

Viewing the facts of this case in the light most favorable to 

the [Commonwealth], the conviction should be upheld. 

This [c]ourt made a determination of fact and there is 

nothing in the record to warrant overturning that 

determination. 

(Trial Court Opinion at 6-7). We agree. The record supports the court’s 

decision, and we see no reason to disturb it. Accordingly, we affirm. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/6/2014