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

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- 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 o f 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 a nd 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 evi dence 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].

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1 18 Pa.C.S.A. §§ 2702(a), 2705, and 907(a), respectiv ely.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 fo llowing 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 bet ween the two men ensued. Although Mr. Kedra wanted to av oid Appellant, the two were forced to cross paths because of the position of their cars, and Mr. Kedra wanted to ma ke 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 Appell ant was going to stab him, Mr. Kedra used his arm to try a nd 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 a nd 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 alte rcation. Appellant’s mother heard the commotion between the tw o men and called the police to the scene. Officers Quinn a nd Bakos were on duty at 3400 Aldine Street and responde d 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. Ke dra. Mr. Kedra was then taken to the hospital to be treate d for multiple lacerations to his face, including his head, mo uth area, puncture wounds to the back and a stab wound toJ-A17003- 14

- 3 - the chest. Appellant was arrested by Officer Bakos and secured in the back seat of the police car. During tria l, 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 f ile any post-sentence motions. Appellant timely filed a notice of appeal o n February 27, 2013, and a concise statement of errors complained of on appeal pur suant 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 obligatio n to prove his claim of self-defense. Rather, the law requires him t o provide only some evidence of self-defense, and the Commonwealth must pro ve beyond a reasonable doubt that the claim lacks merit. Appella nt contends the courtJ-A17003- 14

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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 i nsists the court did not correct the mistake. Appellant cites the court’s Rul e 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 Appellan t’s objection. Appellant blames the court’s use of improper standards for this erro neous rejection of Appellant’s self -defense claim. Appellant concludes the trial court erre d as a matter of law in evaluating the evidence, and this Co urt should vacate the judgment of sentence and remand for a new trial. We disagree. The Pennsylvania Crimes Code governs self-defense in re levant 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

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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

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Court, the justified use of deadly force requires:

a) the actor was free from fault in provoking or cont inuing 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, a nd 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 bey ond 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 a mendment to Section 505 applies to this case.J-A17003- 14

- 7 - The Commonwealth sustains this burden if it establishes a t 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 sa fety.

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 o f 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 immine nt danger of death or great bodily injury and it was necessary to use deadly f orce 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 involve s consideration of the defendant’s subjective s tate of mind. Second, the defendant’s belief that he needed to defe nd himself with deadly force, if it existed, must be reaso nable in light of the facts as they appeared to the defenda nt, 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 b e viewed in isolation with [the victim] as the sole phys ical aggressor and [theJ-A17003- 14

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defendant] acting in responsive self-defense. [T]his wou ld 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 defen dant 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 negat e a self-defense claim by proving the defendant “used more force than r easonably 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 self

defense, the Commonwealth must still disprove the asser ted justification and cannot simply rely on the jury’s disbelief of the def endant’s testimony:

The “disbelief of a denial does not, taken alone, affo rd affirmative proof that the denied fact existed so as to satisfy a proponent’s burden of proving that fact.” Th e trial court’s statement that it did not believe Appell ant’s testimony is no substitute for the proof the Commonweal th was required to provide to disprove the self-defense cl aim. 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 th e fact finder to “reject or accept all, part or none of the testimony of any witn ess.” Commonwealth

v. Gonzales , 609 A.2d 1368, 1370 (Pa.Super. 1992). The complai nant can serve as a witness to the incident to refute a self-defe nse claim. Reynolds,

supra

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

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537, 542- 43 (2003) (holding defendant’s own testimony that shoo ting was accidental was ineffective because there was adequate circu mstantial evidence to prove he pointed gun in direction of victi m and discharged it). “Although the Commonwealth is required to disprove a cl aim of self -defense arising from any source beyond a reasonable doubt, a [ fact-finder] is not required to believe t he 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 bet ween the parties, prior dealings between the parties, threatening or me nacing actions on the part of complainant, and general circumstances surroundin g the incident, are all relevant when determining the reasonableness of a defendant’s belief that the use of deadly force was necessary to protect agai nst 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 dispositi ve. Id. Furthermore, a physically larger person who grabs a smaller person d oes 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 disregar d inadmissible evidence.

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

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In the instant case, the trial court reasoned:

Although Appellant contends that the trial court erre d in placing upon him the burden of proving self-defense, t he burden did not shift from the Commonwealth throughou t the trial. Once the issue of self-defense had been vagu ely 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 th at his response was improper. Even if Appellant feared Mr. Kedra, t he 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 th e court ultim ately found Appellant’s response in this situation to be completely inappropriate and that the use of a deadly weapon in the altercation was unreasonable. Ba sed upon all of the evidence, the court concluded that [Appellant] could not have reasonably believed that h e was in imminent danger of serious bodily injury, in orde r to justify the use of a box cutter, where there was no thr eat of deadly force. Therefore, the Commonwealth satisfie d its burden by establishing that the accused did not reasonab ly believe that he was in danger of death or serious bodi ly injury. (Trial Court Opinion at 5). We agree. The court fo und Mr. Kedra’s testimony was more credible than Appellant’s testimony. The trial court, as trier of fact, decided the evidence proved beyond a re asonable doubt that Appellant unreasonably escalated the altercation when h e attacked Mr. Kedra with a box cutter. This finding is consistent wi th 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 noJ-A17003- 14

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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-de fense against larger person in drunken rage). Here, we see no evidence tha t Mr. Kedra was in a drunken rage, or that he had a history of abusing Ap pellant, such that Appellant reasonably felt justified in using a response that escalated the encounter. Finally, we observe that the trial court si tting as trier of fact is presumed to know the law and correctly apply the burde n of proof. See Dent, supra . Nothing in this record indicates the contrary. Accordi ngly, Appellant’s first issue merits no relief. In his second issue, Appellant asserts the Commonwealth f ailed to disprove Appellant acted in self-defense. Specifically, Appellant claims that as a 130-pound, 18-year-old high school student, he re asonably feared serious bodily injury when a 215-pound, 28-year-old m an (who had been drinking) unexpectedly accosted Appellant as he returne d home after work, late at night. Appellant maintains the court mischar acterized the incident as a mere “fistfight” when it ignored the many real dange rs associated with violent encounters on the street during the late hours of the night. Appellant argues the Commonwealth failed to prove Ap pellant did not reasonably believe he was in imminent danger of death or serious bodilyJ-A17003- 14

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harm as a matter of law, given the disparity in weigh t between Appellant and the complainant and the time of night. Appellan t concludes this Court should vacate the convictions/sentence and discharge him. We disagree. Appellant’s challenge to the sufficiency of the eviden ce implicates the following principles:

Th e standard we apply in reviewing the sufficiency of th e evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winn er, there is sufficient evidence to enable the fact-finder to f ind every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evid ence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude eve ry 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 beyo nd 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 al l, 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 challen ge, the court

stated: In this case, the evidence presented at trial was suffici entJ-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 fi nd that Appellant had not acted reasonably in this situat ion 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 favorab le 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. Accordingl y, we affirm. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/6/2014