J-S03037-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONNA FREEMAN                              :
                                               :
                       Appellant               :   No. 1206 WDA 2019

          Appeal from the Judgment of Sentence Entered July 11, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0001851-2019


BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED FEBRUARY 24, 2020

        Donna Freeman (Freeman) appeals from the judgment of sentence1

imposed pursuant to her bench convictions of Aggravated Assault, 18 Pa.C.S. §

2702(a)(5), and Disorderly Conduct, a summary offense. We affirm.

        We take the following factual background and procedural history from the

trial court’s September 19, 2019 opinion and our independent review of the

record.    On September 27, 2018, Officer John Wade of the Pittsburgh Public

School Safety Department was working at Brashear High School when he

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*   Retired Senior Judge assigned to the Superior Court.

1Freeman purports to appeal from the order denying her post-sentence motions.
However, “[i]n a criminal action, appeal properly lies from the judgment of
sentence made final by the denial of post-sentence motions.” Commonwealth
v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001), appeal denied, 800
A.2d 932 (Pa. 2002) (citation omitted).       We have amended the caption
accordingly.
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reported to a physical altercation involving six to eight people, including

Freeman’s son, Marquese Freeman (Marquese). (See N.T. Trial, 7/03/19, at 12,

14). Officer Wade, who was wearing clothes that plainly and clearly identified

him as a school officer, physically restrained Marquese by wrapping his arms

around him and putting him on the floor to keep him from continuing to

participate in the altercation.   (See id. at 15, 17-18).    Officer Wade briefly

restrained Marquese on the ground, telling him to calm down, while Marquese

resisted against him and yelled. (See id. at 15). Approximately five seconds

later, as Officer Wade was attempting to get Marquese off the floor, Freeman

struck the officer with a closed fist on his right ear. (See id. at 15, 17-18, 35).

The incident from the time Officer Wade arrived on the scene until when Freeman

was escorted away by another officer lasted a total of three to five minutes.

(See id. at 19).

      Freeman was at the school to pick up her son due to his participation in

another physical altercation earlier that day. (See id. at 34, 79). Immediately

prior to Officer Wade’s restraint of Marquese, Freeman was ineffectively

attempting to stop him from fighting with another student. (See id. at 80).

During her direct testimony, Freeman stated that she heard Marquese, but she

did not elaborate on what he said. (See id. at 74). When asked on cross-

examination if she heard her son say anything, she testified that he said, “Mom.”

(Id. at 82). She stated she was frightened for her son’s life because “[Officer

Wade] was on top of my son. My son is squirming around like he can’t breathe.”

(Id. at 83). Marquese testified that he cried out when Officer Wade restrained

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him and he hit the ground. (See id. at 55-56). However, although Marquese

never testified that he could not breathe, in both her post-trial motion and Rule

1925(b) statement, Freeman repeatedly states that she heard him yell, “Help!

Mom!     I can’t breathe.”      (Post-Trial Motion, 7/15/19, at 4); (Rule 1925(b)

Statement, 8/30/19, at 3); see N.T. Trial, at 55-65).

       At the conclusion of trial, the court convicted Freeman of Aggravated

Assault of a School Employee and Disorderly Conduct. On July 11, 2019, the

court sentenced her to two years of probation on the Aggravated Assault charge

but imposed no further penalty on the Disorderly Conduct conviction. The court

denied Freeman’s Omnibus Motion for Post-Trial Relief on July 31, 2019, and

Freeman timely appealed, challenging her Aggravated Assault conviction only.

Both she and the court complied with Rule 1925. See Pa.R.A.P. 1925.

       We interpret Freeman’s inartful brief as a challenge to the sufficiency2 and

weight3 of the evidence on the basis that the Commonwealth failed to disprove

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2 “[In reviewing a challenge to the sufficiency of the evidence,] [w]e must
determine whether the evidence admitted at trial, and all reasonable inferences
drawn therefrom, when viewed in a light most favorable to the Commonwealth
as verdict winner, support the conviction beyond a reasonable doubt.”
Commonwealth v. N.M.C., 172 A.3d 1146, 1149 (Pa. Super. 2007) (citation
omitted). “Where there is sufficient evidence to enable the trier of fact to find
every element of the crime has been established beyond a reasonable doubt,
the sufficiency of the evidence claim must fail.” Id. (citation omitted). “[T]he
fact-finder is free to believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder.” Id. (citation omitted).

3Appellate review of a weight claim is a review of the exercise of discretion, not
of the underlying question of whether the verdict is against the weight of the


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that she was justified in striking Officer Wade in defense of her son.4        (See

Freeman’s Brief, at 4, 7, 8-10).

       Section 2702 of the Crimes Code provides, in pertinent part, that a person

is guilty of aggravated assault if she “attempts to cause or intentionally or

knowingly causes bodily injury to a[n] . . . employee . . . of any . . . secondary

publicly-funded educational institution . . . while acting in the scope of his or her

employment . . . .” 18 Pa.C.S. § 2702(a)(5). Here, Freeman admitted that she

struck Officer Wade, an employee of the Pittsburgh Public School Safety

Department who was working at Brashear High School. (See Freeman’s Brief,

at 6). The assault resulted in bodily injury to Officer Wade in the form of physical

pain. (See N.T. Trial, at 17). This is sufficient to establish aggravated assault




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evidence.” Commonwealth v. Sexton, ___ A.3d ___, 2019 WL 5540999, at
*5 (Pa. Super. filed Oct. 28, 2019) (citation omitted). “One of the least
assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.” Id. (citation
omitted).

4  The Commonwealth aptly observes that Freeman’s brief materially fails to
comply with the Pennsylvania Rules of Civil Procedure. (See Commonwealth’s
Brief, at 6). Specifically, it points out that Freeman failed to set forth the scope
and standard of review, include a statement of the case, or provide pertinent
citation to authorities and discussion thereof. (See id.); see also Pa.R.A.P.
2111, 2117, 2119(a). Although we agree with the Commonwealth that we could
quash or dismiss the appeal for these substantial defects, see Pa.R.A.P. 2101,
because we can discern Freeman’s general argument that her conviction is
against the weight and sufficiency of the evidence because she established a
justification defense, we decline to do so.

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of a school employee acting in the scope of his employment. See 18 Pa.C.S. §

2702(a)(5).

      Freeman maintains, however, that she was acting in the defense of her

son and this serves as a justification defense for her actions. (See Freeman’s

Brief, at 4). Specifically, Freeman’s argument focuses on the reasonable person

standard utilized by the trial court, and maintains that what is reasonable

requires consideration of the current circumstances of “today’s fraught climate.”

(Id. at 9; see id. at 8-10).

      Pursuant to Section 506(a) of the Crimes Code:

      (a) General rule.—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.

18 Pa.C.S. § 506(a).

      Because Section 506 references Section 505 for whether an individual’s

actions would be justified, we turn to Section 505.          Pursuant to Section

505(b)(1), an individual is not justified in using force “to resist an arrest which

the actor knows is being made by a peace officer, although the arrest is

unlawful[.]” 18 Pa.C.S. § 505(b)(1)(i). The Comment to Section 505(b)(1)(i)


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further advises, “[u]nder Subsection (b)(1)(i) the actor may use force if the

arresting police officer unlawfully uses or threatens deadly force. In addition,

the actor may use force to resist an illegal arrest by a person not known to be a

police officer.” 42 Pa.C.S. § 505(b)(1)(i), Comment; see also Commonwealth

v. French, 578 A.2d 1292, 1299 (Pa. Super. 1990), aff’d, 611 A.2d 175 (Pa.

1992) (“A third party . . . is entitled to come forcefully to the aid of a person

being placed under arrest by a known police officer only if the officer was

employing or threatening excessive force which she reasonably believed

subjected the arrestee to serious bodily injury or death.”) (emphasis added).

“[I]t is the Commonwealth’s burden to disprove justification beyond a

reasonable doubt where the defendant validly asserts . . . defense of others.”

Commonwealth v. Hornberger, 74 A.3d 279, 283 (Pa. Super. 2013) (citation

omitted).

      In this case, the trial court stated that:

             Upon consideration of all testimony presented at trial, the
      court finds that Officer Wade, as a school officer tasked with ensuring
      school safety at Brashear High School through his employment by
      the Pittsburgh Public School Safety Department, acted pursuant to
      his duties by restraining the active participant in a physical
      altercation at Brashear High School, and that Officer Wade utilized
      only the amount of force necessary to prevent Marquese Freeman
      from continuing to participate in a fight. The court also finds that
      there is insufficient credible evidence to establish that Ms. Freeman
      honestly believed that her son was in danger of serious bodily injury
      or death. Further, the circumstances in the present case, and
      specifically the fact that Marquese Freeman had been actively
      participating in a fight at the time he was restrained by Officer Wade
      and the level of force associated with that restraint, make it
      imminently apparent that any such belief would not constitute a
      reasonable belief. The circumstances in the present case are not
      sufficient to support a reasonable belief that any use of force by Ms.

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      Freeman against Officer Wade was warranted, let alone a strike with
      a closed fist to the Officer’s head. For all of the reasons discussed
      above, the Commonwealth established that Ms. Freeman did not
      reasonably believe that Marquese Freeman was in danger of serious
      bodily injury or death when Ms. Freeman struck Officer Wade, and
      the Commonwealth thus carried its burden of establishing that Ms.
      Freeman’s use of force against Officer Wade was not justifiable force
      used to protect a third person. The evidence before the court
      established beyond a reasonable doubt that Ms. Freeman struck
      Officer Wade, and that Ms. Freeman’s actions did not constitute
      justified force in defense of another, and, for that reason, this court
      found her guilty of aggravated assault.

(Trial Ct. Op., at 7-8) (unnecessary capitalization omitted).

      We discern no abuse of discretion. Viewing the trial evidence in the light

most favorable to the Commonwealth as verdict winner, it established that

Marquese was actively engaged in a physical altercation involving more than six

individuals at Brashear High School. Freeman testified that she was present for

some of this physical altercation and fighting, and that she unsuccessfully

attempted to bring the physical altercation to an end by attempting to break up

a fight between her son and another student. Officer Wade physically restrained

Marquese in a bear hug and placed him on the ground in an effort to stop him

from participating in this altercation.   Freeman struck Officer Wade despite

knowing why her son had been restrained and she was aware that Officer Wade

was a school officer tasked with maintaining safety at Brashear High School.

      Further, the Commonwealth established that Freeman was not justified in

striking Officer Wade. Neither Marquese nor any other eyewitness testified that

he was unable to breathe when Officer Wade restrained him. Although Freeman

testified that Officer Wade was on top of Marquese, and that Marquese was


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squirming as though, in her belief, he could not breathe, there is no further

testimony as to any other observations made by Freeman. Further, Freeman

testified that she struck Officer Wade approximately five seconds after Officer

Wade had restrained her son. (See N.T. Trial, at 82). This short period of time

does not support a reasonable belief that Marquese was in legitimate danger of

imminent asphyxiation, even in “today’s fraught climate.” In fact, while Freeman

testified at other points that she feared for her son’s life, when expressly asked

what was going through her mind before striking Officer Wade, she stated, “Why

did he come and grab my son when he is not engaged in no fighting and slam

him.” (Id. at 75).

       Based on all of the foregoing, we conclude that the trial court properly

found that when viewed in the light most favorable to the Commonwealth as

verdict winner, the evidence admitted at trial, and all reasonable inferences

drawn therefrom, support Freeman’s conviction beyond a reasonable doubt.

See N.M.C., supra at 1149. Additionally, the Commonwealth met its burden of

disproving Freeman’s justification defense. See Hornberger, supra at 283.

Finally, we conclude that the trial court did not abuse its discretion when it found

that the verdict was not against the weight of the evidence. See Sexton, supra

at *5. Accordingly, we affirm Freeman’s judgment of sentence.5

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5Neither are we persuaded by Freeman’s citations, because the cases she cites
are distinguishable, and she fails to provide pertinent discussion about them.
(See Freeman’s Brief, 8); Pa.R.A.P. 2119(a), (b); see also Graham v. Connor,
490 U.S. 386, 395-96 (1989) (holding claim that law enforcement officials have


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       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2020




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used excessive force are properly analyzed under Fourth Amendment’s
“objective reasonableness” standard rather than substantive due process
standard and requires examination of facts of case); Tennessee v. Gardner,
471 U.S. 1, **20-21 (1985) (holding statute authorizing use of deadly force to
prevent the escape of all felony suspects, whatever the circumstances, is
unconstitutional, and an examination of specific circumstances is required to
determine if use of force reasonable); Commonwealth v. Knox, 190 A.3d
1146, 1158-59 (Pa. 2018), cert. denied, 139 S.Ct. 1547 (2019) (considering
whether specific circumstances supported conviction of terroristic threats and
witness intimidation stemming from rap lyrics that referred to certain police
officers scheduled to testify against defendant); Commonwealth v. Capitolo,
498 A.2d 806, 809-10 (Pa. 1985) (holding defense of justification based on
affirmative defense of necessity was not available to defendants under facts of
case).
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