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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DAVON L. SMITH

                            Appellant                  No. 1717 WDA 2015


          Appeal from the Judgment of Sentence September 14, 2015
                 In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0001619-2014


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED DECEMBER 06, 2016

        Davon L. Smith appeals from the judgment of sentence entered in the

Court of Common Pleas of Allegheny County.             After careful review, we

affirm.

          The trial court made the following factual findings:

              Patrolman William T. Hanelly, Jr. testified that on
              June 7, 2014 he responded to a call at which he met
              Adamec Stevens and John McConnell.          Adamec
              Stevens identified himself as the victim. He had
              blood coming out of his mouth and bruises on his
              face. He was being treated by emergency medical
              providers. Mr. Stevens indicated that a man named
              ‘Flip’ had assaulted him.         Patrolman Hanelly
              identified Davon Smith as ‘Flip.’



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*
    Retired Senior Judge assigned to the Superior Court.
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          Adamec Stevens testified that on June 7, 2014 he
          was at the Monkey Wharf bar in Altoona. He glanced
          up at a camera in the bar and saw a dispute going
          on outside. Someone ran into the bar asking for
          help.     Mr. Stevens testified that ‘Flip’ and his
          girlfriend were involved in the dispute. Mr. Stevens
          went outside to try to help break up the dispute.
          The individual Mr. Stevens knew as ‘Flip’ left and
          returned a short time later and began hitting Mr.
          Stevens.      Mr. Stevens testified he felt that his
          assailant was hitting him with something harder than
          just his fists.

          Mr. Stevens further testified that after the assault
          ‘Flip,’ later identified as Mr. Smith, asked him to tell
          the District attorney that he had pulled a knife on
          him at the time of the assault.          He asked Mr.
          Stevens for his cell phone number and Mr. Stevens
          gave him a made up number. After that, several
          acquaintances approached Mr. Stevens and told him
          that ‘Flip’ knew it was a fake number and he ‘was
          done for.’

          Patrolman Ryan Caputo obtained video surveillance
          from the Monkey Wharf bar that showed the
          incident. The video shows Mr. Stevens attempting to
          mediate an altercation between a female named
          Whitney and Mr. Smith. Mr. Smith leaves the area
          for approximately two and a half minutes. He then
          returns and punches the victim twice before the
          victim falls into a white car and then to the ground.
          Mr. Smith continues to punch Mr. Stevens while he is
          on the ground and kicks him in the head.

          Mr. Smith described the activities shown on the
          surveillance video. He indicated that Mr. Stevens
          challenged him while they were outside so he went
          back into the bar. He testified that his wife’s friend
          came in and told him to come back outside because
          Mr. Stevens’ friend was arguing with Mr. Smith’s
          wife. Mr. Smith testified that he went back outside
          and called a cab. From where he was standing he
          could see Mr. Stevens touch his wife. Mr. Smith
          testified that he thought Mr. Stevens had a knife and

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              Mr. Smith had just been stabbed so he was a little
              more aggressive than he would have been otherwise.

Trial Court Opinion, 1/13/2016, at 2-6.

        Smith was charged with one count of aggravated assault 1, one count

of simple assault2 and one count of harassment.3 On August 6, 2015, a jury

found Smith guilty of all three counts.          The Honorable Elizabeth A. Doyle

sentenced Smith to 10 to 20 years’ incarceration for count 1 and merged

counts 2 and 3 into count 1 for purposes of sentencing. Smith filed a motion

to reconsider his sentence on September 22, 2015, and Judge Doyle denied

his post-sentence motion on September 28, 2015. Smith then filed a timely

notice of appeal on October 28, 2015. On October 29, 2015, the trial court

directed Smith to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.         Judge Doyle filed her Rule 1925(a) opinion on

January 13, 2016.

        Smith raises the following issues on appeal:

        1. Whether the trial court erred by overruling Appellant’s
           hearsay objection at trial where the evidence at trial tended
           to show that the statements were inadmissible hearsay under
           Pa.R.E. 801 which did not fall under any exceptions to the
           hearsay rule to permit its admission.

        2. Whether the trial court erred by refusing to give Suggested
           Standard Jury Instruction 9.502, Justification: use of
____________________________________________


1
    18 Pa.C.S. § 2702(a)(1).
2
    18 Pa.C.S. § 2701(a)(1).
3
    18 Pa.C.S. § 2709(a)(1).



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          force/deadly force in defense of others, where the evidence at
          trial tended to show that Appellant justifiably believed that
          the use of force was immediately necessary for the protection
          of his wife, Whitney Smith.

Appellant’s Brief, at 4.

       In his first issue, Smith contends that the trial court abused its

discretion when it admitted Stevens’ testimony that six acquaintances of

Smith approached Stevens in the Blair County Jail and said that “[Smith]

had found out that it’s a false number and that [Stevens] was done for.”
                                4
N.T. Trial, 8/5/15, at 78.          While the Commonwealth maintains Stevens’

testimony was admissible under the co-conspirator exception to the hearsay

rule, see Pa.R.E.        803(25)(e),5      Smith argues that the   testimony   is

inadmissible under the hearsay exception because the Commonwealth failed

to present sufficient evidence that a conspiracy existed. Appellant’s Brief, at

9. Smith also suggests that the “Commonwealth failed to provide a reason

for the unavailability of the ‘acquaintances.’” Id. at 18.



____________________________________________


4
  “Our standard of review relative to the admission of evidence is for an
abuse of discretion.” Commonwealth v. Feliciano, 67 A.3d 19, 27 (Pa.
Super. 2013).
5
  A statement offered against an opposing party that was made by the
party's co-conspirator during and in furtherance of the conspiracy is not
hearsay. The statement may be considered but does not by itself establish
the existence of the conspiracy or participation in the conspiracy. This rule
applies regardless of whether the declarant is available as a witness. See
Pa.R.E. 803(25)(e).



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     “Only slight evidence of the conspiracy is needed for a co-conspirator's

statement to be introduced and the order of proof is discretionary.”

Feliciano, 67 A.3d at 27. To prove a criminal conspiracy,

           [t]he Commonwealth must establish that the
           defendant (1) entered into an agreement to commit
           or aid in an unlawful act with another person or
           persons, (2) with a shared criminal intent, and (3)
           an overt act done in furtherance of the conspiracy.
           Circumstantial evidence may provide proof of the
           conspiracy. The conduct of the parties and the
           circumstances surrounding such conduct may create
           a web of evidence linking the accused to the alleged
           conspiracy beyond a reasonable doubt.

           Additionally, an agreement can be inferred from a
           variety of circumstances including, but not limited to,
           the relation between the parties, knowledge of and
           participation in the crime, and the circumstances and
           conduct of the parties surrounding the criminal
           episode. These factors may coalesce to establish a
           conspiratorial agreement beyond a reasonable doubt
           where one factor alone might fail.

Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa. Super. 2005).

           Hearsay statements made by a co-conspirator are
           allowed to be admitted against an accused if the
           statements are made during the conspiracy, in
           furtherance thereof, and where there is other
           evidence of the existence of a conspiracy. This
           exception applies even where no party has been
           formally charged with conspiracy. Nor need the co-
           conspirator, whose declaration is testified to, be on
           trial. To lay a foundation for the co-conspirator
           exception to the hearsay rule, the Commonwealth
           must prove that: (1) a conspiracy existed between
           declarant and the person against whom the evidence
           is offered, and (2) that the statement sought to be
           admitted was made during the course of the
           conspiracy.


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Commonwealth v. Basile, 458 A.2d. 587, 590 (Pa. Super. 1983).

       The Commonwealth presented sufficient circumstantial evidence that a

conspiracy existed to intimidate Stevens.6           Stevens testified that Smith

“asked [Stevens] to contact the District Attorney to let them know that

[Stevens] pulled a knife on [Smith] that night and that’s why [Smith] hit

[Stevens].”     N.T. Trial, 8/5/15, at 74.       Stevens also testified that Smith

asked Stevens for his cell phone number, and Stevens gave Smith a fake

number. Id. at 74.

       The trial court found that “circumstantially, there must have been at

least a conversation between the ‘acquaintances’ and Smith indicating that

Stevens had given Smith a fake number.                The fact that six different

acquaintances approached Stevens is circumstantial evidence of Smith’s

determination to convey a threat to Stevens.” Trial Court Opinion, 1/13/16,

14-15.     The Commonwealth presented testimonial evidence that Smith

approached Stevens about lying to the District Attorney and asked for

Stevens’ phone number. This testimony, considered with Stevens’ testimony

that multiple individuals approached Stevens to both threaten him and tell

him that Smith knew about the fake number, is sufficient to prove that

____________________________________________


6
  The Commonwealth argues that the “confrontation and subsequent threat
[that] Mr. Stevens was ‘done for’ clearly fits the description of retaliation
and/or intimidation of a witness and required [Smith’s] knowledge the
number was fake.” Appellee’s Brief, at 7; 18 Pa.C.S. § 4952; 18 Pa.C.S. §
4953.



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Stevens conspired with more than one individual to intimidate Smith. See

Feliciano, supra. The acquaintances would not have known about the fake

number unless Smith had a conversation with the acquaintances about the

fake number.7

       With regard to Smith’s second issue, he argues that the trial court

erred by refusing to give the standard jury instruction on the use of deadly

force in defense of others.8 According to the trial court, the court “declined

to give the instruction based on the totality of the testimony.        Smith’s

testimony indicated that he and the victim had a previous altercation and

that he became increasingly agitated because he thought that Stevens was

getting in his wife’s face.” Trial Court Opinion, 1/13/16, at 15-16.



____________________________________________


7
    Additionally, the out-of-court statement does not implicate the
Confrontation Clause because the statement had a strong indicia of
reliability. The acquaintances had no reason to lie to Stevens about the fake
number or the threat. See Commonwealth v. Coccioletti, 425 A.2d 387,
391 (Pa. 1981) (confrontation clause not violated whenever declarations had
strong ‘indicia of reliability’); see also Dutton v. Evans, 400 U.S. 74, 89
(1970).
8
  Pa.S.S.J.I. § 9.502; see also 18 Pa.C.S. § 506 (“The use of force upon or
toward the person of another is justifiable to protect a third person when:
(1) the actor would be justified under section 505 (relating to use of force in
self-protection) in using such force to protect himself against the injury he
believes to be threatened to the person whom he seeks to protect; (2) under
the circumstances as the actor believes them to be, the person whom he
seeks to protect would be justified in using such protective force; and (3)
the actor believes that his intervention is necessary for the protection of
such other person.”).



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        This Court has stated: “[O]ur standard of review when considering the

denial of jury instructions is one of deference—an appellate court will reverse

a court's decision only when it abused its discretion or committed an error of

law.”    Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011)

(citations omitted), appeal granted on other grounds, 35 A.3d 3 (Pa. 2012).

Further, we must determine “whether such charge was warranted by the

evidence in the case.”       Commonwealth v. Boyle, 733 A.2d 633, 639

(1999). Additionally, “it has long been the rule in this Commonwealth that a

trial court should not instruct the jury on legal principles which have no

application   to   the   facts   presented   at   trial.”   Commonwealth    v.

Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. 2014).

        According to Smith, he believed Stevens provoked him and was

“touching on [Smith’s] wife.” N.T. Trial, 12/18/15, at 62. The only evidence

presented suggesting that Smith was defending his wife, however, was

Smith’s testimony. Testimony from Patrolman Ryan Caputo of the Altoona

Police Department, the video surveillance evidence obtained from the

Monkey Wharf Bar, as well as testimony from Whitney Smith, Smith’s wife,

overwhelmingly corroborated the victim’s account of the events as they

transpired on June 6, 2014 and June 7, 2014. See Appellee’s Brief, at 11-

12. The evidence presented did not support a jury instruction on the use of

deadly force in defense of others, and therefore, we find no abuse of

discretion.


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     Judgment of sentence affirmed.

     PLATT, J., joins the memorandum.

     OLSON, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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