J-S59024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

LARRY CLEMENS

                        Appellant                    No. 2415 EDA 2015


           Appeal from the Judgment of Sentence June 11, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0011993-2014


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 09, 2016

     Appellant, Larry Clemens, appeals from the judgment of sentence

entered on June 11, 2015, as made final by the denial of his post-sentence

motion on July 8, 2015. We affirm.

     The relevant factual background and procedural history of this case is

as follows. Appellant resided with his aunt, Ester Thomas (“Aunt”), and

cousin, Rose Thomas (“Cousin”). On the evening of October 2, 2014, Cousin

was on the phone with Robert Brokenbrough (“Victim”). At that time, Aunt

and Appellant began to argue. Victim later told Cousin that he may stop by

her residence.

     Approximately      30   minutes   later,   Cousin   heard   an   argument

downstairs.   Appellant came upstairs and informed her that he had hurt

Victim “pretty bad.” When police arrived, they located Victim in the kitchen.

*Former Justice specially assigned to the Superior Court.
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He suffered 17 stab wounds, including large stab wounds to the head and

neck. Victim died as a result of those stab wounds.

        Appellant told police at the crime scene that a man named Malik

stabbed Victim.      When police searched Appellant’s bedroom, they located

two knives.      Both Appellant’s and Victim’s blood were found on the two

knives.    At trial, Appellant testified that Victim attacked him and that he

stabbed Victim in self-defense.

        On October 29, 2014, Appellant was charged via criminal information

with first-degree murder1 and possessing an instrument of crime.2 On June

11, 2015, Appellant was convicted of both charges.           The trial court

immediately sentenced Appellant to an aggregate term of life imprisonment

without the possibility of parole. On June 19, 2015, Appellant filed a post-

sentence motion. On July 8, 2015, the trial court denied the post-sentence

motion. This timely appeal followed.3

        Appellant presents two issues for our review:


____________________________________________


1
    18 Pa.C.S.A. § 2502(a).
2
    18 Pa.C.S.A. § 907.
3
  On August 20, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On September 10, 2015, Appellant filed his concise
statement. On November 18, 2015, the trial court issued its Rule 1925(a)
opinion. Appellant included both issues raised on appeal in his concise
statement.



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   1. Whether Appellant is entitled to an arrest of judgment as to the
      charge of first-degree murder, because the Commonwealth failed
      to prove each element of the crime charged beyond a reasonable
      doubt?

   2. Whether Appellant is entitled to an arrest of judgment as to the
      charge of possession of an instrument of crime, because the
      Commonwealth failed to prove each element of the crime
      charged beyond a reasonable doubt?

Appellant’s Brief at 6.

      Both of Appellant’s issues challenge the sufficiency of the evidence.

“Whether sufficient evidence exists to support the verdict is a question of

law; our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015), appeal

denied, 119 A.3d 351 (Pa. 2015) (citation omitted).    “When reviewing the

sufficiency of the evidence, this Court is tasked with determining whether

the evidence at trial, and all reasonable inferences derived therefrom, are

sufficient to establish all elements of the offense beyond a reasonable doubt

when viewed in the light most favorable to the Commonwealth[.]”

Commonwealth v. Haney, 131 A.3d 24, 33 (Pa. 2015) (citation omitted).

“The evidence need not preclude every possibility of innocence and the fact-

finder is free to believe all, part, or none of the evidence presented.”

Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa. Super. 2015) (internal

quotation marks and citation omitted).




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     In this case, Appellant argues that the Commonwealth failed to satisfy

its burden of disproving his affirmative defense of self-defense.      As our

Supreme Court has stated:

     The Commonwealth satisfies its burden of disproving self-
     defense where it proves any one of the following: the defendant
     did not reasonably believe that it was necessary to kill to protect
     from himself imminent death or great bodily harm; the
     defendant was not free from fault in provoking or continuing the
     difficulty which resulted in the slaying; or, the defendant violated
     a duty to retreat or avoid the danger.

Commonwealth v. Rivera, 108 A.3d 779, 791 (Pa. 2014) (citation

omitted).

     We focus our attention on the first element, i.e., whether the

Commonwealth proved beyond a reasonable doubt that Appellant did not

reasonably believe that deadly force was necessary to protect himself or

another from death or great bodily harm. As this Court stated:

     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 consideration of the defendant’s
     subjective state of mind. Second, the defendant's belief that he
     needed to defend 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. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citation

omitted).

     Viewed in the light most favorable to the Commonwealth, the evidence

established that Appellant was the aggressor and he was not acting in self-

defense.    Specifically, Appellant admitted to Cousin that he was the

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individual who stabbed Victim immediately after the incident.             See N.T.,

6/9/15, at 49. It was only after police arrived did his story change and he

alleged that a gentleman named Malik was in fact the perpetrator of the

offense. See N.T., 6/8/15, at 47.4 Appellant’s story about Malik, however,

was nonsensical.      Appellant claimed that Malik fled the house through the

kitchen door; however, the kitchen door was locked and bolted from the

inside with objects blocking the door from the inside. See id. at 48. It was

virtually impossible that Malik had stabbed Victim and then fled in the

manner alleged by Appellant.

       Moreover, at trial Appellant changed his story once again and claimed

that Malik was Victim’s nickname.              See N.T., 6/10/15, at 34-35.   He also

admitted that at least one of the knives found in his bedroom, which was

used in the commission of the offense, was his. See id. at 37. Appellant

claimed that Victim attacked him with a knife. See id. at 35. He then took

the knives to his bedroom where he attempted to wipe the knives down.

See N.T., 6/8/15, at 73.

       Appellant’s testimony that he took the knife from Victim is undermined

by the presence of Victim’s blood on that knife. Furthermore, the evidence

showed that most of Victim’s wounds were consistent with self-defense and
____________________________________________


4
  There are two volumes of testimony from June 8, 2015. The first volume
contains voir dire proceedings and the second volume contains preliminary
jury instructions, opening statements, and testimony. All citations in this
memorandum are to the second volume.



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Appellant only sustained minor scratches. Thus, Appellant’s argument as to

why the Commonwealth failed to satisfy its burden of disproving his self-

defense theory is based upon viewing the evidence in the light most

favorable to him instead of the light most favorable to the Commonwealth

that we cannot do.    Moreover, Appellant’s version of events is nonsensical

and the jury could have reasonably inferred from the above circumstantial

evidence, including Appellant’s continually shifting version of events, that

Appellant was the aggressor and he did not reasonably believe that deadly

force was necessary to protect himself or another from death or great bodily

harm. Accordingly, the evidence was sufficient to convict Appellant of first-

degree murder.

      In his second issue, Appellant claims that the evidence was insufficient

to convict him of possessing an instrument of crime. As we determined that

the Commonwealth satisfied its burden of proof with respect to disproving

Appellant’s   self-defense   theory,   we    must   also   conclude   that   the

Commonwealth satisfied its burden of proof with respect to the possessing

an instrument of crime charge. Two knives which contained both Appellant’s

and Victim’s blood were found in Appellant’s bedroom.        It is obvious that

those two knives were instruments of crime which Appellant used to murder

Victim.   Accordingly, the Commonwealth satisfied its burden of proving

Appellant possessed an instrument of crime.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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