J-A11038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    CHARLES ALBERT SHAFFER, JR.                :
                                               :
                       Appellant               :      No. 167 MDA 2017


             Appeal from the Judgment of Sentence August 8, 2016
                in the Court of Common Pleas of Clinton County
              Criminal Division at No.: CP-18-CR-0000055-2015


BEFORE:      STABILE, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                  FILED JULY 20, 2018

       Appellant, Charles Albert Shaffer, Jr., appeals from the judgment of

sentence imposed following his jury conviction of one count each of criminal

attempt—homicide, aggravated assault, aggravated assault with a deadly

weapon, and recklessly endangering another person, and two counts of simple

assault.1 We affirm.

       This case arises from Appellant’s shooting of his housemate, Casey

Farley, in the abdomen with a shotgun at their joint residence on December

12, 2014. On the day before the shooting and on the day thereof, Appellant

made a series of complaints to police concerning Farley’s alleged theft and




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1 18 Pa.C.S.A §§ 901(a), 2702(a)(1), 2702(a)(4), 2705, and 2701(a),
respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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sale of Appellant’s prescription medication (oxycodone). During one phone

call, made at 6:25 p.m. on December 12, he stated:

       [Farley] has a pocket full of money over there from selling my
       medication, and I’m going to confront him.

       . . . I got a shotgun and it’s loaded. And Jimmy[2] is trying to tell
       me to settle down, but I’m not. I’m not. I want what’s owed to
       me. I mean, I’m just like livid here.

       . . . I’m not homicidal. I’m for justice. . . . If I confront him, he’s
       going to come after me.

(N.T. Trial, 4/26/16, at 98-100).              Authorities instructed Appellant not to

confront Farley.

       Later, Appellant approached Farley while Farley was in the kitchen

cooking, and began angrily yelling at him, accusing him of stealing medication

from his bedroom. Appellant was holding a shotgun, pointed down towards

the ground. Appellant warned Farley to stay out of his room, stating, “if I ever

catch you in there again, I’ll shoot you.” (N.T. Trial, 4/27/16, at 191).

       Appellant went upstairs to Dennehy’s room, and Farley followed.

Appellant pulled a shotgun out from under pillows on the couch, and said: “If

you ever go in my room—you stole my pills and I know you took them. . . .

You ever go in my room, I’m going to shoot you.” (Id. at 197). Appellant

aimed the gun at the middle of Farley’s chest, and poked him in the chest with

it. Farley pushed the barrel of the shotgun in an attempt to get it away from

Appellant, and Appellant shot him in the upper abdomen. Appellant said: “you

____________________________________________


2   James Dennehy was the third roommate.

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stole from me . . . I’d reload again and shoot you again . . . but if I do that I

won’t be able to claim self-defense.” (Id. at 200). Dennehy called 911 at

7:49 p.m., and Farley was transported to the hospital for surgery.

       On April 29, 2016, a jury found Appellant guilty of the above-stated

offenses, following a four-day trial.          On August 8, 2016, the trial court

sentenced him to a term of not less than fifteen nor more than thirty-five

years’ incarceration.       The court issued an opinion and order denying

Appellant’s timely post-sentence motion on January 5, 2017, following a

hearing. This timely appeal followed.3

       Appellant raises the following issues for our review:

       I. Whether the trial court erred in denying Appellant’s motion for
       judgment of acquittal on all charges due to insufficient evidence
       being presented at trial, and where the Commonwealth failed to
       disprove Appellant’s claim of self-defense since Appellant: (1) was
       not the initial aggressor; (2) did not provoke the difficulty which
       resulted in the shooting of the complaining witness; and (3)
       reasonably believed that he was in imminent danger of death or
       serious bodily injury such that it was necessary to use deadly force
       to prevent such harm; and where there was an abundance of
       evidence and testimony presented at trial that the complaining
       witness had a reputation for aggressive, violent, and physically
       threatening behavior, which was known to Appellant through his
       prior dealings with the complaining witness, and where the
       complaining witness actually threatened to kill Appellant just
       moments before the shooting?

       II. Whether the trial court erred in denying Appellant’s motion for
       a new trial on all charges since the trial court declined to give
____________________________________________


3Appellant timely filed a court ordered concise statement of errors complained
of on appeal on February 7, 2017. The trial court entered an opinion on
February 21, 2017, in which it referred this Court to its opinion and order filed
January 5, 2017. See Pa.R.A.P. 1925.

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      Appellant’s requested jury instructions that would have specifically
      informed the jury of the various nuances of self-defense as it
      related to the evidence presented at trial such that the law
      regarding self-defense was not clearly, adequately, and accurately
      presented to the jury for its consideration, and the record did not
      support the trial court’s decision?

      III. Whether the trial court erred in denying Appellant’s motion for
      a new trial on all charges since the trial court declined to give
      Appellant’s requested jury instruction that would have informed
      the jury that they could consider the character evidence presented
      at trial that the complaining witness had a violent and aggressive
      character when such evidence was relevant to corroborate
      Appellant’s knowledge of the complaining witness’s violent
      character to show that Appellant reasonably believed that he was
      at risk of serious injury or that his life was in danger, and/or to
      prove the existence of the violent propensities of the complaining
      witness to show that the complaining witness was the aggressor?

      IV. Whether the trial court erred in denying Appellant’s motion for
      a new trial on all charges by declining to follow the doctrine of
      stare decisis, and where after-discovered evidence revealed that
      the complaining witness, who had previously testified at trial that
      he was not planning on bringing a civil lawsuit against Appellant,
      consulted with a civil attorney in between his testimony in the
      Commonwealth’s case-in-chief and the Commonwealth’s rebuttal
      at Appellant’s trial such that the jury could not properly evaluate
      the complaining witness’s testimony for bias or motive since the
      circumstances relating to the complaining witness’s prior
      testimony had materially changed in the middle of trial?

      V. Whether the trial court erred in denying Appellant’s motion for
      a new trial on all charges because the jury’s verdict was against
      the weight of the evidence, manifestly unreasonable, and so
      contrary to the evidence as to shock one’s sense of justice since
      certain facts were so clearly of greater weight that to ignore them
      or to give them equal weight with all the other facts is to deny
      justice including, but not limited to, that the only objective
      eyewitness told police immediately after the shooting that the
      complaining witness chased the Appellant through his home,
      threatened to kill Appellant, and would have seriously injured
      Appellant had Appellant not acted in self-defense?

(Appellant’s Brief, at 9-10) (unnecessary capitalization omitted).

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      In his first issue, Appellant challenges the sufficiency of the evidence

supporting all of the charges, arguing that the Commonwealth failed to

disprove that he acted in self-defense. (See id. at 31-38). Appellant claims

that he was not the initial aggressor during the incident, that he did not

provoke it, and that his use of deadly force against Farley was necessary.

(See id. at 31, 34, 36-38). This issue does not merit relief.

      We review claims regarding the sufficiency of the evidence by
      considering 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. Further, a conviction may be
      sustained wholly on circumstantial evidence, and the trier of fact—
      while passing on the credibility of the witnesses and the weight of
      the evidence—is free to believe all, part, or none of the evidence.
      In conducting this review, the appellate court may not weigh the
      evidence and substitute its judgment for the fact-finder.

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017), appeal

denied, 183 A.3d 970 (Pa. 2018) (citation and quotation marks omitted).

            When a defendant claims self-defense, the burden is on the
      Commonwealth to disprove the defendant’s claim beyond a
      reasonable doubt. In order for a defendant to successfully claim
      self-defense, he or she must meet the following three elements:
      (1) the defendant reasonably believed that he was in imminent
      danger of death or serious bodily injury and that the use of deadly
      force was necessary to prevent such harm; (2) the defendant did
      not provoke the incident which resulted in the victim’s death; and
      (3) the defendant did not violate any duty to retreat. . . . [T]he
      Commonwealth has the burden of disproving self-defense beyond
      a reasonable doubt and may do so by disproving any one of the
      three self-defense elements the defendant must meet.

Commonwealth v. Patterson, 180 A.3d 1217, 1231 (Pa. Super. 2018)

(citations omitted).



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J-A11038-18



      Here, the Commonwealth has proven beyond a reasonable doubt that

Appellant was the aggressor and provoked the incident in this case, and

therefore his self-defense claim must fail. As noted above, during the day

leading up to the shooting, Appellant made numerous phone calls to police

wherein he seemed “obsessed” with his allegations against Farley, culminating

in a call referencing his loaded shotgun and desire “for justice.” (N.T. Trial,

4/26/16, at 55, 100; see id. at 85, 98). Although authorities directed him

not to confront Farley, Appellant proceeded to do so anyway with a loaded

gun, angrily yelling accusations regarding theft of his medication. (See id. at

98-99; N.T. Trial, 4/27/16, at 189, 206).      Appellant threatened to shoot

Farley, aimed the gun at the center of his chest, and pulled the trigger when

Farley attempted to move it away from him. (See N.T. Trial, 4/27/16, 191,

196-201). Based on the foregoing, we conclude that the Commonwealth met

its burden of disproving Appellant’s self-defense claim beyond a reasonable

doubt, and the evidence fully supports the jury’s guilty verdict.

      We will address Appellant’s second and third issues together because

they are related, and both challenge the trial court’s jury instruction on self-

defense.   Appellant contends that the court’s instruction failed to clearly,

adequately, or accurately present the law, and was deficient in light of the

record. (See Appellant’s Brief, at 39-47). He acknowledges that the court

issued the standard jury instruction on self-defense, but claims that the

proposed instructions that he submitted, which the court rejected, were

instead appropriate.   (See id. at 39).    He further argues that the court’s

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J-A11038-18



refusal to instruct the jury regarding Farley’s aggressive character and

reputation for threatening violence as it related to Appellant’s claim of self-

defense rendered its instruction on self-defense incomplete and inadequate.

(See id. at 48-53). These issues lack merit.

      Our standard of review is as follows:

             When reviewing a challenge to jury instructions, the
      reviewing court must consider the charge as a whole to determine
      if the charge was inadequate, erroneous, or prejudicial. The trial
      court has broad discretion in phrasing its instructions, and may
      choose its own wording so long as the law is clearly, adequately,
      and accurately presented to the jury for its consideration. A new
      trial is required on account of an erroneous jury instruction
      only if the instruction under review contained fundamental
      error, misled, or confused the jury.

Commonwealth v. Miskovitch, 64 A.3d 672, 684 (Pa. Super. 2013), appeal

denied, 78 A.3d 1090 (Pa. 2013) (citation omitted; emphasis in original).

      “[A] trial court need not accept counsel’s wording for an instruction, as

long as the instruction given correctly reflects the law.” Commonwealth v.

Towles, 106 A.3d 591, 607 (Pa. 2014), cert denied, 135 S.Ct. 1494 (2015)

(citation omitted) (rejecting appellant’s challenge to trial court’s use of

instruction substantially based on Pennsylvania Suggested Standard Criminal

Jury Instructions).

      Here, the record reflects that the trial court issued to the jury a

comprehensive and thorough instruction on self-defense, substantially based

on the Pennsylvania Suggested Standard Criminal Jury Instruction. (See N.T.

Trial, 4/29/16, at 80-84; Trial Court Opinion, 1/05/17, at unnumbered page



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5; Commonwealth’s Brief, at 17-18). The instruction, read as a whole, clearly

and accurately represented the law on self-defense; thus, there was no error.

See Towles, supra at 607; Miskovitch, supra at 684.                    Therefore,

Appellant’s second and third issues merit no relief.

      In his fourth issue, Appellant argues that the trial court erred in denying

his motion for a new trial based on after-discovered evidence concerning

Farley. (See Appellant’s Brief, at 54-62). Specifically, he claims that Farley’s

mid-trial pursuit of a civil suit against Appellant constituted a new, material

fact demonstrating that Farley’s testimony was biased, and motivated by

financial gain. (See id. at 54, 61). Appellant maintains that because Farley’s

actions in this regard contradicted his trial testimony, a new trial is warranted.

(See id. at 54, 56, 61-62). This issue merits no relief.

      “When we examine a trial court’s decision to deny a new trial on the

basis of after-discovered evidence, we ask only if the court committed an

abuse of discretion or an error of law which controlled the outcome of the

case.” Commonwealth v. Woeber, 174 A.3d 1096, 1108 (Pa. Super. 2017)

(citations and internal quotation mark omitted).

             To obtain a new trial based on after-discovered evidence,
      the defendant must prove, by a preponderance of the evidence,
      that the evidence: (1) could not have been obtained before the
      conclusion of trial by the exercise of reasonable diligence; (2) is
      not merely corroborative or cumulative; (3) will not be used solely
      to impeach a witness’s credibility; and (4) would likely result in a
      different verdict. [S]ee Pa.R.Crim.P. 720(c). . . .




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Commonwealth v. Murray, 174 A.3d 1147, 1153 (Pa. Super. 2017) (case

citation omitted).    There must be discovery of “actual evidence” that is

producible and admissible. Commonwealth v. Griffin, 137 A.3d 605, 610

(Pa. Super. 2016), appeal denied, 157 A.3d 476 (Pa. 2016); see id. at 608.

      Here, at trial, defense counsel questioned Farley as follows:

            Q. Have you arranged a civil attorney for a civil suit against
            [Appellant]?

            A. No.

            Q. Are you planning on suing for this matter?

            A. No, I don’t believe there is anything to sue for.

            Q. [Appellant] doesn’t have much?

            A. Not that I know of.

(N.T. Trial, 4/27/16, at 269-70).

      Following trial, defense counsel received a letter from Farley’s attorney

dated April 30, 2016 (one day after the jury verdict) advising that Farley would

be pursuing a civil action against Appellant arising from the shooting. (See

Letter from Jessalyn Cool, Esq. to Appellant, 4/30/16, at 1). At the hearing

on Appellant’s post-sentence motion, defense counsel and Farley had the

following exchange:

      Q. At the trial . . . I asked you point blank, have you arranged
      for a civil attorney for a civil suit against [Appellant], and your
      answer was, no. Do you recall that?

      A. Yes.

      Q. That wasn’t true, was it?

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      A. Sure it was.

      Q. That was true?

      A. At the time you asked me, yes.

      Q. When did you consult with . . . your civil attorney . . . [?]

      A. Later that day. Pretty much you gave me the idea for a lawsuit.

      Q. That’s when she gave you the idea of the lawsuit?

      A. You did. When you asked the question, it brought it into my
      mind. I already had the attorney for a Social Security Disability
      case, so I called her up and asked about it. She said, yeah, we
      can do that.

(N.T. Hearing, 12/21/16, at 11-12).

      The trial court determined that the purported after-discovered evidence

regarding the civil suit was not actual evidence. It explained:

      . . . [T]his newly-discovered evidence does not establish a new
      fact. The victim denies that his statements were untruthful at the
      time he testified. The victim further testified that any decision to
      proceed with recovery of damages in a civil trial was made after
      he was cross-examined by defense counsel. There is nothing
      before the [c]ourt that will permit it to find that the victim testified
      untruthfully at the time of his testimony. . . .

(Trial Ct. Op., at unnumbered pages 8-9).

      Upon review, we agree with the trial court, and discern no abuse of

discretion or error of law that controlled the outcome of this case.             See

Woeber, supra at 1108. Therefore, Appellant’s fourth issue merits no relief.




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       In his final issue, Appellant challenges the weight of the evidence

supporting his conviction.4        (See Appellant’s Brief, at 63-64).   Appellant

argues that the jury should have given greater weight to the recorded

statements Dennehy gave to police immediately after the shooting, which he

claims establish that Farley was the aggressor during the incident. (See id.).

Appellant maintains that Dennehy’s trial testimony, which was not favorable

to Appellant, should have been afforded minimal weight, because of

Dennehy’s problems with his memory. (See id. at 64). This issue lacks merit.

             . . . The weight of the evidence is exclusively for the finder
       of fact, who is free to believe all, none or some of the evidence
       and to determine the credibility of the witnesses. Resolving
       contradictory testimony and questions of credibility are matters
       for the finder of fact. It is well-settled that we cannot substitute
       our judgment for that of the trier of fact.

              Moreover, [a]ppellate review of a weight claim is a review
       of the exercise of discretion, not the underlying question of
       whether the verdict is against the weight of the evidence. Because
       the trial judge has had the opportunity to hear and see the
       evidence presented, an appellate court will give the gravest
       consideration to the findings and reasons advanced by the trial
       judge when reviewing a trial court’s determination that the verdict
       is [or is not] against the weight of the evidence. 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.

             Furthermore, in order for a defendant to prevail on a
       challenge to the weight of the evidence, the evidence must be so
       tenuous, vague and uncertain that the verdict shocks the
       conscience of the court.
____________________________________________


4Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).

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             [A] true weight of the evidence challenge concedes that
      sufficient evidence exists to sustain the verdict but questions
      which evidence is to be believed. For that reason, the trial court
      need not view the evidence in the light most favorable to the
      verdict winner, and may instead use its discretion in concluding
      whether the verdict was against the weight of the evidence.

Miller, supra at 642–43 (citations and quotation marks omitted).

      Here, the record shows that Appellant shot Farley at close range in the

abdomen after becoming increasingly irate over a several hour period because

of Farley’s alleged theft of his oxycodone. (See N.T. Trial, 4/26/16, at 85-86,

98-99; N.T. Trial, 4/27/16, at 197-98). The jury heard Dennehy’s recorded

statements to police, his trial testimony, and his explanation of his problems

with his memory. (See N.T. Trial, 4/27/16, at 68-177). The jury, as fact

finder, was free to believe all, some, or none of the evidence, and to resolve

any discrepancies in the testimony or credibility issues. See Miller, supra at

642–43. The trial court rejected Appellant’s weight claim, stating that the

jury’s verdict was entirely consistent with the outcome it expected, and that

the evidence of Appellant’s guilt was “overwhelming.”       (Trial Ct. Op., at

unnumbered page 4). Upon review, we conclude that the trial court did not

abuse its discretion in denying Appellant’s weight claim. See Miller, supra

at 642–43.     Therefore, Appellant’s final issue does not merit relief.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/20/2018




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