J-S77006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ABDUL POWELL                               :
                                               :
                       Appellant               :   No. 3780 EDA 2017

           Appeal from the Judgment of Sentence November 14, 2014
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011854-2013


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 23, 2019

        Abdul Powell appeals, nunc pro tunc, from the judgment of sentence

imposed on November 14, 2014, in the Court of Common Pleas of Philadelphia

County, following his non-jury conviction of one count each of aggravated

assault, possession of an instrument of crime with intent, simple assault, and

reckless endangerment.1 On November 14, 2014, the trial court sentenced

him to 74 to 200 months’ imprisonment. On appeal, Powell challenges: (1)

the discretionary aspects of his sentence; (2) the trial court’s denial of his

motion in limine; (3) the weight of the evidence; and (4) the sufficiency of the




____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702(a)(1), 907(a), 2701(a)(1), and 2705, respectively.
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evidence underlying his aggravated assault conviction.       Based upon the

following, we affirm.

      The trial court set out the relevant facts and procedural history as

follows:

      On June 30, 2013, Niquan Blackson (hereinafter “[Blackson]”) was
      in the area of 1747 Aberdeen Street, Philadelphia, PA, attending
      a neighborhood block party. [Blackson] had known [Powell] for
      many years, as they were both from the same neighborhood and
      had grown up together around that area. [Blackson] arrived at
      the block party at 2:30 pm and departed, along with [Powell], at
      12:30 am to go to a neighborhood bar, Cafe Breezes. After one
      drink, [Blackson] and [Powell] decided to return to the block
      party, driving separate cars.

      While [Blackson] was driving back from the bar and was stopped
      at a red light, [Powell] drove around [Blackson’s] vehicle and
      struck [his] passenger side rearview mirror with his vehicle. As a
      result, [Blackson’s] mirror was damaged and hung off the side of
      [his] vehicle.

      Subsequently, [Powell] and [Blackson] got into a heated
      argument regarding damages to [Blackson’s] vehicle. The verbal
      argument escalated into a physical altercation, during which
      [Blackson] struck [Powell] first. The fight took place on the
      sidewalk in front of [Powell’s] parked car, and [Powell] had access
      to both the car and his car keys. However, instead of retreating
      into his car, [Powell] pulled out a knife and stabbed [Blackson]
      once in the left-hand side, puncturing [his] spleen and lung.

      [Blackson] was rushed by his wife to Lankenau Hospital, where he
      underwent eight (8) hours of surgery. Although the doctor was
      unsure if [Blackson’s] spleen could be saved, the doctor was more
      concerned about [his] overall condition as [he] had lost a profuse
      amount of blood. Fortunately, [Blackson] was able to survive the
      surgery, whereby [he] spent two (2) weeks recovering in the
      Intensive Care Unit. Upon leaving the Intensive Care Unit and
      returning home, [Blackson] returned to the hospital for another


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        week after complications arose with his bowel movements due to
        internal bleeding.

        Though [Blackson’s] physical condition was too critical to make a
        statement on the day of the incident, Philadelphia Police Detective
        Mary K[u]chinsky (hereinafter “Detective K[u]chinsky”) was able
        to interview [Blackson] on July 1, 2013. Detective K[u]chinsky
        presented a photo array to [Blackson], whereby [he] identified
        [Powell] by circling [his] photograph.

                                          ***

        On February 28, 2014, [Powell] waived his right to a jury trial and
        elected to have a bench trial before the Honorable Christopher
        Wogan. The trial was bifurcated, whereby on March 26, 2014,
        [Powell’s] motion in limine was heard before the Honorable Steven
        R. Geroff. Judge Geroff denied the motion in limine, whereby
        [Powell’s] trial resumed before Judge Wogan.

        On March 26, 2014, [Powell] was found guilty by Judge Wogan of
        [the aforementioned charges]. Sentencing was deferred until
        August 18, 2014, whereby [Powell] was sentenced to an
        aggregate sentence of 76 [to] 198 months of incarceration at a
        State Correctional Institution, followed by a period of three (3)
        years of probation.

        On August 27, 2014, [Powell] filed a motion for reconsideration of
        sentence, whereby on November 14, 2014, Judge Wogan granted
        the motion and altered [Powell’s] sentence to 74 [to] 200 months
        of incarceration at a State Correctional Institution.

        On February 3, 2015, [Powell] filed a timely, pro se petition under
        the Post-Conviction Relief Act (hereinafter “PCRA petition”).[2]
        Subsequently, [Powell] filed an amended PCRA petition on March
        31, 2016. On October 17, 2017, [the PCRA court] granted
        [Powell’s] nunc pro tunc rights, whereby on November 3, 2017,
        [Powell] filed the instant notice of appeal, which appeal the
        Superior Court of Pennsylvania (hereinafter “Superior Court”)
        docketed at 3780 EDA 2017.
____________________________________________


2   42 Pa.C.S.A. §§ 9541-9546.

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      On April 12, 2018, after a short delay in obtaining transcripts, [the
      trial court] issued an order directing [Powell] to file a Statement
      of [Errors] Complained of on Appeal (hereinafter “1925(b)
      statement”). On April 30, 2018, [Powell] filed said 1925(b)
      statement. [On May 17, 2018, the trial court issued an opinion.]

Trial Court Opinion, 5/18/2018, at 1-4 (record citations and footnotes

omitted).

      Powell first contends that his sentence “was unduly harsh and excessive

and failed to consider mitigating factors[.]” Powell’s Brief, at 8. However,

Powell waived this claim.

      A challenge to the discretionary aspects of a sentence is not absolute,

but rather, “must be considered a petition for permission to appeal.”

Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and

internal citation omitted). To reach the merits of such a claim, this Court must

determine:

      (1) whether the appeal is timely; (2) whether [the defendant]
      preserved [the] issue; (3) whether [the defendant’s] brief includes
      a concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).              “[I]ssues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the


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sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.” Commonwealth v. Cartrette, 83 A.3d 1030,

1042 (Pa. Super. 2013) (en banc).

       In the present case, Powell did file a post-sentence motion challenging

his original sentence.       However, on November 14, 2014, the trial court

granted the motion and imposed a new sentence.          N.T. Motion Hearing,

11/14/2014, at 10. Powell did not challenge the discretionary aspects of his

new sentence during the sentencing hearing or in a post-sentence motion filed

within ten days after the imposition of sentence. See Pa.R.Crim.P. 720(A)(1).

Thus, Powell waived any challenge to the discretionary aspects of his

sentence.3

       In his second contention, Powell claims that the trial court erred in

denying his motion in limine to preclude admission at trial of the audio tapes



____________________________________________


3 Even if we were to construe the original post-sentence motion as covering
the new sentence, Powell would still have waived his claim. The only issues
he raised in his post-sentence motion were that the court should reduce his
sentence because he had full-time employment and serious health issues.
Post-Sentence Motion, 8/27/2014, at 1. He did not raise the claims of harsh
and excessive sentence and failure to consider mitigating factors raised
herein. An appellant waives any discretionary aspects of his sentence issue
not raised in a post-sentence motion; also, an appellant cannot raise an issue
for the first time on appeal. See Commonwealth v. Mann, 820 A.2d 788,
794 (Pa. Super. 2003) (finding claim sentencing court did not put sufficient
reasons to justify sentence on record waived where issue was not raised in
post-sentence motion), appeal denied, 831 A.2d 599 (Pa. 2003); see also
Pa.R.A.P. 302(a).

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of two telephone calls. Powell’s Brief, at 18. However, again, Powell waived

this claim.

      Our review of a trial court’s ruling on a motion in limine is well

established:

      When ruling on a trial court’s decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. A trial court has broad discretion to determine whether
      evidence is admissible, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014)

(quotation marks and citations omitted).

      Here, Powell sought to preclude admission of the audio tapes of two

telephone calls.   However, the certified record does not contain either the

audio tapes themselves or a transcription of the content of the tapes. While

the transcript of the hearing on the motion in limine does contain counsels’

summarizations of the contents of the tapes that is insufficient, we have no

means to test the accuracy of their statements.

      Our courts have long held that it is an appellant’s responsibility to ensure

that the certified record contains all items necessary to ensure that this Court

is able to review his claims. See Commonwealth v. B.D.G., 959 A.2d 362,

372 (Pa. Super. 2008) (en banc) (holding that claim that victim’s execution of

general release barred imposition of restitution was waived where appellant


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failed to include release in certified record); see also Commonwealth v.

Brown, 161 A.3d 960, 968 (Pa. Super. 2017) (“Our law is unequivocal that

an appellant bears the responsibility to ensure that the record certified on

appeal is complete in the sense that it contains all of the materials necessary

for the reviewing court to perform its duty.”), appeal denied, 176 A.3d 850

(Pa. 2017).    Without either the tapes themselves or a transcription, it is

impossible for this Court to address the merits of Powell’s claim that the trial

court erred in admitting them. Thus, Powell’s second claim fails.

      In his third issue, Powell contends that the verdict was against the

weight of the evidence. Powell’s Brief, at 8. A weight of the evidence claim

concedes the sufficiency of the evidence. Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000). A weight claim addresses the discretion of the trial

court. Id. at 752 (citation omitted). On review, the appellate court decides

whether the trial court abused its discretion when ruling on the weight claim;

it does not consider the underlying question of whether the verdict was against

the weight of the evidence. Id. at 753. We will only find an abuse of discretion

where the verdict is so contrary to the evidence as to shock one’s sense of

justice. Our review of a challenge to the weight of the evidence supporting

the verdict is well-settled:

      The weight of the evidence is a matter exclusively for the finder
      of fact, who is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses. A new trial is
      not warranted because of a mere conflict in the testimony and

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       must have a stronger foundation than a reassessment of the
       credibility of witnesses. Rather, the role of the trial judge is to
       determine that notwithstanding all the facts, certain facts are so
       clearly of greater weight that to ignore them or to give them equal
       weight with all the facts is to deny justice. On appeal, our purview
       is extremely limited and is confined to whether the trial court
       abused its discretion in finding that the jury verdict did not shock
       its conscience. Thus, appellate review of a weight claim consists
       of a review of the trial court’s exercise of discretion, not a review
       of the underlying question of whether the verdict is against the
       weight of the evidence. An appellate court may not reverse a
       verdict unless it is so contrary to the evidence as to shock one’s
       sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en

banc) (citation omitted), appeal denied, 168 A.3d 1237 (Pa. 2017).

       Instantly, Powell’s weight of the evidence claim is merely a restatement

of his sufficiency challenge, which we discuss infra. He fails to explain how

the verdict was against the weight of the evidence, or in what way the trial

court abused its discretion in denying his weight claim. Rather, his argument

consists only of his bald allegation that the Commonwealth’s testimony

negating self-defense was “contradictory and speculative.”4 Powell’s Brief, at

22. Conversely, the trial court, in its opinion, discusses, in detail, why it did

not find that the Commonwealth’s evidence was contradictory.          Trial Court

Opinion, 5/18/2018, at 7-8. Powell provides us with no basis upon which to

disagree. Accordingly, his weight claim fails.


____________________________________________


4 At no point in his argument on this issue does Powell ever cite to the record
in support of his characterization of the Commonwealth’s testimony.

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      In his final issue, Powell argues that the evidence is insufficient to

sustain his conviction for aggravated assault. Powell’s Brief, at 23-25. Our

standard of review for a claim of insufficient evidence is as follows:

      The determination of whether sufficient evidence exists to support
      the verdict is a question of law; accordingly, our standard of
      review is de novo and our scope of review is plenary. In assessing
      [a] sufficiency challenge, we must determine whether viewing all
      the evidence admitted at trial in the light most favorable to the
      [Commonwealth], there is sufficient evidence to enable the
      factfinder to find every element of the crime beyond a reasonable
      doubt.     [T]he facts and circumstances established by the
      Commonwealth need not preclude every possibility of innocence.
      . . . [T]he finder 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. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)

(quotation marks and citations omitted).

      The Commonwealth charged Powell with violating 18 Pa.C.S.A. §

2702(a)(1). Specifically, Section 2702 states, in relevant part:

      a) Offense defined.--A person is guilty of aggravated assault if
      he:

      (1) attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life[.]

18 Pa.C.S.A. § 2702(a)(1).

      Here, Powell conceded at trial that he caused serious bodily injury to

Blackson. N.T. Trial, 2/28/2014, at 75-76. Thus, the Commonwealth did not

need to prove specific intent, only that the defendant acted recklessly.

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Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007) (en

banc) (citation omitted), appeal denied, 940 A.2d 364 (Pa. 2007).

      Where malice is based on a reckless disregard of consequences, it
      is not sufficient to show mere recklessness; rather, it must be
      shown the defendant consciously disregarded an unjustified and
      extremely high risk that his actions might cause death or serious
      bodily injury. A defendant must display a conscious disregard for
      almost certain death or injury such that it is tantamount to an
      actual desire to injure or kill; at the very least, the conduct must
      be such that one could reasonably anticipate death or serious
      bodily injury would likely and logically result.

Commonwealth v. Packer, 146 A.3d 1281, 1285 (Pa. Super. 2016),

affirmed, 168 A.3d 161 (Pa. 2017).

      In this matter, Powell contends that he acted in self-defense, not

recklessly. Powell’s Brief, at 24-25. With respect to self-defense, “[t]he use

of force upon or toward another person is justifiable when the actor believes

that such force is immediately necessary for the purpose of protecting himself

against the use of unlawful force by such other person on the present

occasion.” 18 Pa.C.S.A. § 505(a).

      When a defendant raises the issue of self-defense, the
      Commonwealth bears the burden to disprove such a defense
      beyond a reasonable doubt. While there is no burden on a
      defendant to prove the claim, before the defense is properly at
      issue at trial, there must be some evidence, from whatever
      source, to justify a finding of self-defense.

Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa. Super. 2006) (citation

omitted).




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      Powell, in maintaining that he used a knife in a fistfight in self-defense,

ignores our standard of review, which requires that we view the evidence in

the light most favorable to the Commonwealth as verdict winner, along with

all reasonable inferences. Furthermore, the trial judge, as fact finder, passes

on the credibility of witnesses and is free to believe all, part or none of their

testimony. See Commonwealth v. Feese, 79 A.3d 1101, 1119 (Pa. Super.

2013).

      Here, the trial judge, as fact finder, specifically rejected Powell’s self-

defense testimony.    Trial Court Opinion, 5/18/2018, at 7-9.       Viewing the

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

demonstrates that, even though the Commonwealth conceded that Blackson

was the aggressor, Powell did not dispute that he was the only person with a

weapon or that he responded to fists by stabbing Blackson, puncturing his

lung and rupturing his spleen.

      Our Supreme Court has held that deadly force is not a justified response

to fisticuffs.   Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012)

(holding evidence was insufficient to raise jury question about self-defense

where victim punched defendant multiple times and defendant shot at him);

Commonwealth v. Jones, 332 A.2d 464, 466 (Pa. Super. 1974) (holding

using knife in response to fistfight is not justified use of deadly force).

Moreover, the record demonstrates that Powell, who was on a public sidewalk,


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had many opportunities to retreat. See Commonwealth v. Gillespie, 434

A.2d 781, 784 (Pa. Super. 1981) (holding opportunity to retreat existed

because, “the fight occurred on a public sidewalk, with several avenues of

retreat available.”). Thus, our review of the record supports the trial court’s

finding that the Commonwealth presented sufficient evidence to support the

verdict of aggravated assault. The evidence presented by the Commonwealth,

particularly that the victim was unarmed and that Powell had the opportunity

to retreat, was sufficient to disprove his claim of self-defense beyond a

reasonable doubt.

      For all the foregoing reasons, we affirm Powell’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/19




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