Com. v. Cole, C.

J-A22033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CHACE JAY COLE :

:

Appellant : No. 1207 WDA 2021

Appeal from the Judgment of Sentence Entered September 8, 2021

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0000838-2021

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 28, 2022

Appellant, Chace Jay Cole, appeals from the judgment of sentence

imposed after the trial court found him guilty of carrying a firearm without a

license, possession of drug paraphernalia, and disorderly conduct.1 He

challenges the sufficiency of the evidence and asserts that the Commonwealth

failed to disprove an affirmative defense to his firearms charge. Upon careful

review, we affirm.

The trial court has offered the following summary of the facts for our

review:

At trial, Officer Brian Frank of the Monroeville Police Department

testified that on November 26, 2020, he responded to a call that

a man was knocking on a door on the ninth floor of an apartment

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S. §

5503(a)(1), respectively.

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building and swearing at the person inside. Officer Frank testified

that the assailant was not immediately apprehended. An hour

later, a second reporting source indicated an individual was on the

first floor of the same building, knocking on her door and swearing

at her. Officer Frank testified that he searched the building one

floor at a time and discovered an individual on the eighth floor.

The officer was in full uniform and yelled[,] “Stop. Police[,]” but

the person instead ran down several flights of stairs and was

eventually arrested on the fifth floor. Appellant refused to comply

with numerous officer commands, broke away from Officer Frank

and Officer Frank required the assistance of another officer to

effectuate the arrest. Officer Frank identified Appellant as the

person he arrested and added that he was familiar with Appellant

because Officer Frank had responded “thousands of times” to

reports of Appellant knocking on doors. At the police station,

officers searched the backpack Appellant had been wearing and

recovered a firearm which was unloaded and had a locking

mechanism on it. No magazine or ammunition were recovered

from the backpack. The officers also recovered a scale and glass

pipes from the backpack.

Appellant testified that his girlfriend rents an apartment on the

third floor, and he had been residing with her. Appellant further

testified that the gun was in his backpack because he was

transporting it from a safe in his girlfriend’s apartment to a safe

in his friend’s residence. Appellant stated he was going directly

from his girlfriend’s apartment to his friend’s apartment even

though he had not called his friend to see if his friend was home.

His friend did not live in the building. Appellant stated that if his

friend was not home when Appellant arrived, he would have taken

the gun to his friend’s place of work.

Trial Ct. Op., 1/26/22, 2-3 (record citations omitted).

We note, in addition to the trial court’s summary of the facts, that Officer

Frank testified that the first 911 caller did not give a description of the man

who was allegedly knocking on a door and swearing on the ninth floor of the

apartment building, but the “second reporting source” from the first floor

“gave a description of a bald male wearing a gray T-shirt, black pants[,] and

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work boots.” N.T. 9/8/21, 14. When asked if he “located” anyone, Officer

Frank testified, “Yes, I was searching for the male, I was going floor by floor

checking every floor for him which I located him on the eighth floor.” Id. at

15 (emphasis added). Officer Frank described that person as running down

the hallway into a stairway, and then noted that he located him on the seventh

and fifth floors. Id. at 15-16 (“At that time I located him on the fifth floor. I

heard an elevator door opening to which I went over, saw Chace Cole in the

elevator.”).

Appellant proceeded to a non-jury trial on September 8, 2021. After

the trial court heard testimony from Officer Frank and Appellant, it found

Appellant guilty of the above-referenced charges and found him not guilty of

resisting arrest.2 Appellant declined a request for a pre-sentence investigation

report and, on the same day, the court sentenced him to four to eighteen

months of imprisonment to be followed by one year of probation for carrying

a firearm without a license. The court did not impose any further penalty for

the remaining offenses. Appellant did not file any post-sentence motions, and

timely filed a notice of appeal invoking our jurisdiction for this appeal. Notice

of Appeal, 10/8/21. After the court granted his request for an extended

response deadline, Appellant filed a court-ordered concise statement of errors

complained of on appeal. Rule 1925(b) Statement, 1/12/22.

Appellant raises the following issues for our review:

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2 18 Pa.C.S. § 5104.

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I. Did the trial court err in finding that the evidence was

sufficient to support the guilty verdicts in this case because

the Commonwealth failed to establish that the defendant

was the person identified by the 911 callers?

II. Did the trial court err when it determined that the

Commonwealth had disproven the defense raised by Mr.

Cole as provided in Section 6106(b)(8) of the Crimes Code?

Appellant’s Brief at 6 (suggested answers omitted).3

In his first issue presented, Appellant claims that the evidence was

insufficient to sustain the trial verdicts “because the Commonwealth failed to

establish that [he] was the person identified by the 911 complainants.”

Appellant’s Brief at 12. He points out that there was no evidence that he was

the person who had been knocking on apartment doors and swearing, i.e., the

person that the police were summoned to investigate. Id. He thus asserts

that his convictions are “the product of conjecture and surmise.” Id. We

conclude that the instant claim is meritless because Appellant does not

demonstrate that any of the elements of his convictions went unproven.

Our standard of review for a sufficiency claim is as follows:

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

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3 In his Rule 1925(b) statement, Appellant also included a third issue

challenging the sufficiency of the evidence for his disorderly conduct

conviction. Rule 1925(b) Statement, ¶ 5(a)(3). However, Appellant has not

included that issue in his appellate brief. Accordingly, we find it abandoned

on appeal. See Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa. Super.

2011) (issues raised in a Rule 1925(b) statement but not included in appellate

brief are abandoned).

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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 [trier] 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. Chisebwe, 278 A.3d 354, 358 (Pa. Super. 2022)

(citation omitted).

To establish that Appellant violated 18 Pa.C.S. § 6106(a)(1) and

committed the crime of carrying a firearm without a license as a felony of the

third degree, the Commonwealth needed to prove beyond a reasonable doubt

that Appellant “carrie[d] a firearm in any vehicle” or “carrie[d] a firearm

concealed on or about his person, except in his place of abode or fixed place

of business, without a valid and lawfully issued [firearms] license.” 18 Pa.C.S.

§ 6106(a)(1).

To establish that Appellant violated 35 P.S. § 780-113(a)(32) and

committed the crime of possessing drug paraphernalia as a misdemeanor, the

Commonwealth needed to prove beyond a reasonable doubt that Appellant

used or possessed, with intent to use, drug paraphernalia “for the purpose of

planting, propagating, cultivating, growing, harvesting, manufacturing,

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compounding, converting, producing, processing, preparing, testing,

analyzing, packing, repacking, storing, containing, concealing, injecting,

ingesting, inhaling or otherwise introducing into the human body a controlled

substance.” 35 P.S. § 780-113(a)(32), (i).

To establish that Appellant violated 18 Pa.C.S. § 5503(a)(1) and

committed the crime of disorderly conduct as a summary offense, the

Commonwealth needed to prove beyond a reasonable doubt that Appellant,

“with intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, … engage[d] in fighting or threatening, or in violent or

tumultuous behavior.” 18 Pa.C.S. § 5503(a)(1), (b).

Appellant argues that the evidence did not prove that he was the person

alleged in 911 calls to be causing the disturbances that the police were

responding to, but that argument has no bearing on the sufficiency of the

evidence for his firearm and drug paraphernalia convictions. When the police

arrested Appellant, he was carrying a backpack that contained an unloaded

handgun with a lock on it, a scale, three glass pipes that Officer Frank

described as “crack pipes,” and “baggies” that Officer Frank identified as

typically used for the packaging of different types of drugs. N.T. 9/8/21, 18-

19, 25-26, 28-29. The police also recovered an additional “crack pipe” on

Appellant’s person at the time of his arrest. Id. at 18. It was uncontested

that Appellant did not have a valid firearms license. Id. at 20; Commonwealth

Trial Exhibit 2 (gun licensing form).

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Viewing the evidence in the light most favorable to the Commonwealth

– as is required by the controlling standard of review – this evidence was

adequate to sustain the firearm and drug paraphernalia convictions.

Appellant’s possession of the backpack containing the gun and drug

paraphernalia during his apparent flight through the apartment building prior

to and at the time of his arrest constituted possession of the items recovered

from the backpack.4 See Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa.

Super. 2018) (for purposes of a statutory element of possession, this Court

has explained that “[p]ossession can be found by proving actual possession,

constructive possession, or joint constructive possession”) (citation omitted).

Given the precise combination of a scale that would be commonly used for

weighing controlled substances, along with glass pipes that would be

commonly used for smoking crack cocaine, and “baggies” that would be

commonly used for packaging controlled substances, we find that the trier of

fact below made a reasonable inference that the items found in Appellant’s

backpack constituted drug paraphernalia. See 35 P.S. §§ 780-102(b)(5), (9),

(10), (12)(i) (defining scales used for weighing controlled substances,

envelopes or “other containers” used for the packing of small quantities of

____________________________________________

4Appellant does not raise any argument in the instant claim that the common

area hallways of the apartment building were “in his place of abode” for

purposes of Section 6106, however, an assertion to that effect would not

change our assessment of the sufficiency of the evidence. See, e.g.,

Commonwealth v. Ortiz, 738 A.2d 403, 405 (Pa. 1999) (“[T]he common

meaning of ‘place of abode’ is the actual house or apartment of a person. It

does not include common areas to which a person has a right of access but

which are shared with others who have a similar right of access.”).

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controlled substances, and glass pipes intended for the use of inhaling

controlled substances, as drug paraphernalia).

To the extent that Appellant asserts in his challenge to the sufficiency

of the evidence that the evidence failed to prove that he was person causing

the disturbances that caused Officer Frank’s presence in the apartment

building, he appears to be suggesting that there was inadequate evidence

permitting his arrest and the recovery of the items from his backpack. Any

argument concerning the inadmissibility of the gun and drug paraphernalia

based on an alleged inadequacy of evidence for a search and seizure is

immaterial for purposes of a challenge to the sufficiency of the evidence for

the gun and drug paraphernalia convictions because, when we address the

sufficiency of the evidence, we must consider all the evidence presented

during the trial, without consideration as to its admissibility. See

Commonwealth v. Sanford, 863 A.2d 428, 431-32 (Pa. 2004) (“[A]

challenge to the admissibility of evidence is separate from a sufficiency claim.

Indeed, it is improper for a court, when reviewing a sufficiency challenge, to

eliminate from its consideration any evidence which it deems to be

inadmissible.”).

With respect to the sufficiency of the evidence for all the offenses, we

reject Appellant’s theory that the evidence did not adequately connect him to

the reports that brought Officer Frank to the scene. Here, after Officer Frank

testified that the “first caller” did not offer a description for a suspect and

identified the description offered by another caller, he was asked, with respect

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to his response, “And at that point did you locate anyone?” N.T. 9/8/21, 14-

15. He responded, “Yes, I was searching for the male, I was going floor by

floor checking every floor for him which I located him on the eighth floor.” Id.

at 15 (emphasis added). He then testified that he thereafter located that man

on the seventh and fifth floors and then referred to seeing Appellant in an

elevator. Id. at 15-16. Read in the light most favorable to the

Commonwealth, and in their proper context, the testimony of Officer Frank

proved Appellant’s identity as the suspect for the reported disturbances in the

building. When Officer Frank testified that he was searching for “the male,”

he was speaking about the suspect described by the “second caller,” and that

this person turned out to be Appellant. Id. (“At that time I located him on

the fifth floor. I heard an elevator door opening to which I went over, saw

Chace Cole in the elevator.”) (emphasis added).5

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5 We see no indication from the trial court’s docket that Appellant challenged

the constitutionality of his detention and sought the suppression of the

contents of his backpack or person prior to trial. He appears to be using a

sufficiency claim as a substitute for an evidence admissibility claim. Assuming

arguendo that an admissibility challenge based on a theory of lack of identity

was raised below, it would appear to be meritless based on the content of

Officer Frank’s affidavit of probable cause that is included in the certified

record for this appeal. See Affidavit of Probable Cause, 11/26/20, 2 (Officer

Frank noted in his sworn affidavit, “I then proceeded to check the stairways

and every floor before I located COLE who matched the description on the

8th floor”) (emphasis added). We cannot consider the content of that affidavit

for sufficiency purposes because it was not marked and moved into the

evidentiary record as an exhibit at trial, however, it is nevertheless consistent

with our interpretation of Officer Frank’s testimony.

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The instant claim merely alleges that the Commonwealth failed to

present sufficient evidence proving Appellant’s identity as the suspect

described by the second 911 caller. Having rejected that claim based on our

careful reading of Officer Frank’s testimony, we decline to find that the

evidence was insufficient to prove any of the elements of Appellant’s

convictions.

In his second issue, Appellant asserts that the Commonwealth failed to

disprove his assertion of the affirmative defense at 18 Pa.C.S. § 6106(b)(8).

Pursuant to that defense, a person who would otherwise be carrying a firearm

in violation in section 6106(a) is not criminally liable provided that they are

carrying an unloaded firearm for the purposes of, inter alia, safekeeping it:

(b) Exceptions.--The provision of subsection (a) shall not apply

to:

…

(8) Any person while carrying a firearm which is not loaded

and is in a secure wrapper from the place of purchase to his

home or place of business, or to a place of repair, sale or

appraisal or back to his home or place of business, or in

moving from one place of abode or business to another or

from his home to a vacation or recreational home or dwelling

or back, or to recover stolen property under section

6111.1(b)(4) (relating to Pennsylvania State Police), or to a

place of instruction intended to teach the safe handling, use

or maintenance of firearms or back or to a location to which

the person has been directed to relinquish firearms under

23 Pa.C.S. § 6108 (relating to relief) or back upon return of

the relinquished firearm or to a licensed dealer’s place of

business for relinquishment pursuant to 23 Pa.C.S. § 6108.2

(relating to relinquishment for consignment sale, lawful

transfer or safekeeping) or back upon return of the

relinquished firearm or to a location for safekeeping

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pursuant to 23 Pa.C.S. § 6108.3 (relating to relinquishment

to third party for safekeeping) or back upon return of the

relinquished firearm.

18 Pa.C.S. § 6106(b)(8).

At trial, Appellant testified that he was taking the recovered gun to his

friend’s house to store it in his friend’s safe because his girlfriend that he was

living with was on probation. N.T. 9/8/21, 37-38 (Appellant: “I didn’t want to

get her in trouble for having a firearm in the apartment.”). The purpose of

the transportation of the gun was for safekeeping. Id. at 39 (Appellant: “I

was just transporting it to a safe location.”). He asserted that the gun was in

a locked compartment in his backpack that had “a suitcase lock.” Id. at 38-

40, 42. When asked on cross-examination about whether he had called his

friend to see if the friend was home for him to take the firearm to, Appellant

responded, “No, we’re very close. I knew staying there the firearm could be

there.” Id. at 42. In response to questions posed by the court, Appellant

confirmed that his girlfriend’s apartment was on the third floor of the

apartment building. Id. at 43.

Appellant’s counsel asserted that the defense under section 6106(b)(8)

applied. N.T. 9/8/21, 47. Among other concerns about the use of the phrase

“secure wrapper” in the statutory defense, the court suggested that the

argument for the application for that defense was incredible because, while

Appellant’s girlfriend lived on the third floor of the apartment building and he

was supposedly transporting the gun to a friend’s home at another location,

he was found carrying the gun on the upper floors of the apartment building.

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Id. at 48 (The Court: “[I]t does hurt your argument significantly that he was

on the eighth floor, on the seventh floor, and on the fifth floor of the building

rather than in the parking lot headed to his automobile.”), 50 (The Court: “I’m

asking why he had the gun in his backpack that he said he was taking to his

friend’s house when he was on other floors of the apartment; ninth floor,

eighth floor, fifth floor from where he and his girlfriend lived? How that fits

into the intent of the statute which is clearly to relocate a firearm?), 51-52

(The Court: “But the evidence, in this case, doesn’t show that he was going

anywhere except running the hallways of that building.”).

The court ultimately denied the application of the section 6106(b)(8)

defense on credibility grounds:

THE COURT: But for the fact that he was running all over the

building, I would find merit to this argument even willing to read

as a disjunctive between the secure wrapper from the place of

purchase or a place of business. But in this case, it was not a

secure wrapper, I would be willing to overlook that and say

insufficient with no ammunition, and no clip, and the lock through

the mechanism that it would meet the spirit of section (b)(8), but

given his behavior of running through the building, I find his

testimony not credible. Also not credible that he didn’t realize that

the woman he lived with for ten years was on probation, even

though he claims that he knows the law very well and that she

didn’t tell him, but he figured out she was on probation and

couldn’t have a gun. So there’s some inconsistency in the story

here. All of that does concern me, and it does not meet the spirit

of the law and the letter of what the exception is.

N.T. 9/8/21, 53-54.

On appeal, Appellant asserts that he raised the statutory exception

under section 6106(b)(8) and that it should have applied because the gun was

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unloaded, the locked backpack qualified as a “secure wrapper” for purposes

of the statute, and he was “moving [the gun] from one abode to another.”

Appellant’s Brief at 23, 26-29. He argues that “[t]he trial court’s disbelief of

[his] testimony d[id] not afford affirmative proof that the denied fact existed

so as to satisfy the Commonwealth’s burden of disproving the defense.” Id.

at 29. He posits that the defense could not have been rejected on credibility

grounds and, instead, he should have prevailed on the defense because it was

not disproved by the Commonwealth. Id. at 29-30.

We disagree with Appellant’s analysis of the applicability of the alleged

defense and find that he failed to meet his threshold burden of presenting

some evidence to justify a finding that the section 6106(b)(8) exception

applied to his movement of the recovered gun. See, e.g., Commonwealth

v. Yogel, 453 A.2d 15, 16 (Pa. Super. 1982) (noting with respect to Yogel’s

assertion of a statutory affirmative defense, “As such an accused who desires

to assert such a defense must present evidence that it applies to him.”); see

also Commonwealth v. Lopez, 565 A.2d 437, 440 (Pa. 1989) (“Section (b)

[of 18 Pa.C.S. § 6106] specifically enumerates certain justifications for

carrying a firearm outside one’s home or fixed place of business. As

recognized by the Superior Court, these exceptions are affirmative defenses,

which must be placed in issue by the defendant, and which need not be

negated by the prosecutor in its case-in-chief.”) (emphasis added).

Putting aside the state of the gun as unloaded and whether Appellant

needed to demonstrate a “secure wrapper” of the gun for purposes of section

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6106(b)(8), Appellant failed to demonstrate that the affirmative defense of

safekeeping applied to his movement of the gun. In trying to demonstrate

the applicability of the defense, he italicizes the following portion of the

defense provision in his brief: “moving from one place of abode or business to

another.” Appellant’s Brief at 24. With the evidence offered, however,

Appellant was not asserting that he was moving to his friend’s home or

business and taking the gun with him. See N.T. 9/8/21, 37 (Appellant: “… so

I decided it was a good idea to get it out of the apartment and take it

somewhere safe there was another safe where it would be away from her … I

was taking it to a friend’s house that has a safe. He was in the military, I

trusted it being there.”). Appellant by his own testimony was not transporting

the gun as part of a relocation of himself between homes or businesses.

Instead, he alleged that he was moving the gun for the purposes of

safekeeping the gun elsewhere while he continued to reside with his girlfriend

who was supposedly serving probation. Appellant’s Brief at 30 (“Accordingly,

Mr. Cole established that his weapon … was being transported to another

location for safekeeping.”). Accordingly, for the safekeeping defense to be

properly placed at issue before the trial court, he needed to present evidence

that the safekeeping provisions of section 6106(b)(8) applied.

The relevant portion of section 6106(b)(8) provides an exception for

liability under section 6106(a) for carrying an unloaded firearm “to a location

for safekeeping pursuant to 23 Pa.C.S. § 6108.3 (relating to relinquishment

to third party for safekeeping).…” Accordingly, to properly raise the defense,

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Appellant needed to present evidence that he was carrying the recovered gun

to transfer it pursuant to 23 Pa.C.S. § 6108.3. He did not do that below and

his movement of the gun was not even argued to have been meant for the

purpose of a transfer of the gun under that separate statute.

23 Pa.C.S. § 6108.3(a) provides a general rule that a defendant “who is

the subject of a protection from abuse order, which order provides for the

relinquishment of firearms … may, within the time frame specified in the order

and in lieu of relinquishment to the sheriff, relinquish any firearms, other

weapons or ammunition for safekeeping to a third party who meets the

requirements of a third party under subsection (b)(3).” Right from the start,

section 6108.3 did not apply in this case to permit Appellant to carry his

firearm for the purposes of safekeeping under the 6108(b)(8) exception

because he was not moving the gun to his friend’s safe as part of a forced

relinquishment of that firearm pursuant to a protection from abuse order.6

Even if Appellant could voluntarily relinquish his gun to his friend for

safekeeping purposes under section 6108.3, Appellant’s testimony did not

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6 The defense under 6106(b)(8) addresses two permissible forms of

safekeeping, which are to be conducted pursuant to 23 Pa.C.S. §§ 6108.2-

6108.3. Section 6108.2 has no applicability in this case because it only applies

to relinquishments of firearms to firearms dealers licensed pursuant to 18

Pa.C.S. § 6113. See 6108.2(a). Appellant’s friend could have conceivably fit

within 6108.3(i)’s definition of a “third party,” however, that statute’s

definition of safekeeping would not apply to Appellant’s supposed voluntary

relinquishment of his firearm to his friend based on the testimony offered at

trial. See 23 Pa.C.S. § 6108.3(i) (defining “Safekeeping” as “[t]he secure

custody of firearms, other weapons or ammunitions which were ordered

relinquished by an active protection from abuse order”) (emphasis

added).

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present any evidence of an effort to commit a third-party transfer of the gun

under that statute. Under that statute, he could not directly transfer the gun

to his friend by simply dropping it off at the friend’s workplace or home.

Instead, section 6108.3(b)(1) would have required him and his friend to have

met together in a county sheriff’s office at which point a sheriff could issue a

safekeeping permit to the friend under section 6108.3(b)(2), so long as the

friend was not prohibited from possessing firearms, other weapons, or

ammunition. Only after the issuance of a safekeeping permit would Appellant

be able to relinquish a firearm to his friend, at which point the friend would

have been required to sign an acknowledgment of receipt on a form prescribed

by the Pennsylvania State Police. See 23 Pa.C.S. § 6108.3(b)(4). Appellant’s

testimony did not contemplate any compliance with 23 Pa.C.S. § 6108.3.

There was no discussion of section 6108.3 below and no evidence presented

that Appellant acted with the intent to make a formal third-party transfer of a

firearm under that section to provide a basis for applying the exception under

18 Pa.C.S. § 6106(b)(8) for an affirmative defense.

We cannot logically address the assertions that the Commonwealth

failed to disprove an affirmative defense under section 6108(b)(8) and that

the trial court improperly denied the application of that defense on credibility

grounds because Appellant never presented any evidence below of an intent

or effort to complete a safekeeping transfer under 23 Pa.C.S. § 6108.3, and

thus he never properly placed the issue of section 6108(b)(8)’s safekeeping

defense before the trial court. Because Appellant never provided any evidence

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for a transfer under 23 Pa.C.S. § 6108.3, the Commonwealth had no burden

to disprove a safekeeping defense under section 6108(b)(8) and the trial

court’s credibility determination is immaterial for purposes of our review.7

See Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012) (addressing the

affirmative defense of self-defense and noting, “Although the defense has no

burden to prove self-defense … before the issue is properly in issue, ‘there

must be some evidence, from whatever source, to justify such a finding.’ Once

the question is properly raised, ‘the burden is upon the Commonwealth to

prove beyond a reasonable doubt that the defense was not acting in self-

defense.’”) (citation omitted and emphasis added). For this reason,

Appellant’s instant claim merits no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2022

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7 “We may, of course, affirm the decision of the trial court if the result is

correct on any ground without regard to the grounds which the trial court itself

relied upon.” Commonwealth v. Shaw, 431 A.2d 897, 899 n.1 (Pa. 1981)

(citation omitted).

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