Commonwealth v. Smith

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.

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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;

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] 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

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

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,

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

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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

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

USING

A BOX CUTTER TO PROTECT HIMSELF WAS

UNREASONABLE UNDER THE CIRCUMSTANCES?

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

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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 insists the court did

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

-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

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:

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(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

* * *

(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

(Footnote Continued Next Page)

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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).

-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 [self-

defense] 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

-defense under Section 505 of the Pennsylvania Crimes

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

-

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.

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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

tate of mind.

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

viewed in isolation with [the victim] as the sole physical aggressor and [the

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

and inaccurate view of the circumstances for self- 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

to protect against death or serious bodily Commonwealth v.

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

-

defense, the Commonwealth must still disprove the asserted justification and

affirmative proof that the denied fact existed so as to

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

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

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537, 542-

accidental was ineffective because there was adequate circumstantial

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

-defense

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

required to believe t

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

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).

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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, t

after he claimed Mr. Kedra had pushed him, was

unwarranted and unreasonable.

character evidence, this does not negate the fact that the

court ultim

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.

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

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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,

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

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

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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.

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

-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)).

stated:

In this case, the evidence presented at trial was sufficient

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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

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-

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

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