J-S57037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                   v.                     :
                                          :
JEFFREY CHRIS CHEHOVITS,                  :
                                          :
                 Appellant                :     No. 140 WDA 2016

        Appeal from the Judgment of Sentence September 30, 2015
             in the Court of Common Pleas of Beaver County
           Criminal Division at No(s): CP-04-CR-0001684-2014

BEFORE:    FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED SEPTEMBER 15, 2016

     Jeffrey Chris Chehovits (Appellant) appeals from the September 30,

2015 judgment of sentence imposed after the trial court found him guilty of

aggravated assault, prohibited offensive weapons, simple assault, and

recklessly endangering another person (REAP). We affirm.

     The trial court made the following findings of fact.

            On September 5, 2014, Christopher Murray went to
     Talerico’s Bar in Ambridge, Beaver County, to celebrate a
     friend’s birthday.      Over the course of the night, Murray
     consumed several drinks and left the bar at approximately 10:00
     p.m. After leaving, he went to Jacqueline Poore’s home at 801
     9th Street in Ambridge. Murray was romantically involved with
     Poore at the time. Poore was not at her house when Murray got
     there. She joined him around midnight. Together, they watched
     television and fell asleep on the couch.

            Between 1:30 a.m. and 2:00 a.m. on September 6, 2014,
     there was a knock on the door. Poore looked out the door and
     said, “It’s Jeff,” referring to Appellant. Murray had met Appellant


*Retired Senior Judge assigned to the Superior Court.
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     a few times prior to September 6 at various bars and on a few
     occasions at Poore’s house. On seeing Appellant through the
     screen door, Murray told Appellant to leave.      Murray and
     Appellant pushed at one another’s hands through the screen
     door.

           Murray, who had been sleeping in boxers, put on shorts
     and walked outside, his belt dangling from his waist. He pulled
     out his belt, and Appellant asked him if he was going to hit him,
     Appellant, with the belt. Murray responded that he “might if you
     don’t get out of here.” Murray testified that he removed his belt
     and threw it on the ground. The [c]ourt found this testimony
     credible and consistent with the belt’s location in photographs
     taken during the ensuing investigation.

            Appellant proceeded to his truck, which was parked
     nearby. Murray shouted after him, telling him not to come back.
     Murray testified that just as he thought Appellant was leaving,
     Appellant leaned into his truck and started coming back toward
     him.     Murray saw “something that seemed metallic in
     [Appellant's] hand,” which turned out to be a black Marines fold
     up knife.     According to Murray, he tried to back away as
     [A]ppellant was swinging at him with the knife in hand. Murray
     put his hands up to cover his face. Murray realized that the
     metallic object in Appellant’s hand was “a sharp object” and that
     when the object made contact with Murray’s hand, Murray
     realized that he was “severely injured.”

            Appellant turned and walked away, while Murray’s left
     thumb was “pretty much flipped over.” Murray lay in the street
     in front of Poore’s home, holding his left hand and losing a lot of
     blood. Appellant left the scene in his vehicle.

            Soon after, Officer Timothy Depenhart of the Ambridge
     Borough Police Department arrived at the scene. He observed
     Murray holding a towel around his arm. Officer Depenhart called
     for an ambulance. Poore and Murray told [Officer] Depenhart
     that it was Appellant who stabbed Murray and that Appellant had
     left in a vehicle. [Officer] Depenhart detected alcohol on Murray,
     but Murray was able to answer [Officer] Depenhart’s questions.
     Murray told [Officer] Depenhart that Appellant lives in nearby
     Economy, Beaver County.



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              Officer Depenhart put in a call to police in the surrounding
        area to be on the lookout for Appellant. Soon after, Economy
        police informed [Officer] Depenhart that they had Appellant in
        custody outside his residence. [Officer] Depenhart went to
        Appellant’s residence and saw that Appellant had already been
        placed in custody. Eventually, [Officer] Depenhart was led into
        Appellant’s home and found the knife sitting on the arm of
        Appellant’s couch. Officers placed the knife into evidence.

Trial Court Opinion, 3/9/2016, at 3-5 (citations omitted).

        As a result of the incident, Appellant was convicted of the charges

indicated above following a bench trial.1       Appellant was sentenced to an

aggregate term of six to 23½ months of imprisonment. Appellant’s timely-

filed post-sentence motions were denied after a hearing.            Thereafter,

Appellant timely filed a notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

        Appellant presents four questions to this Court:

        I.     Whether [] Appellant’s convictions for aggravated assault,
               simple assault, and [REAP] should be reversed because the
               Commonwealth failed to present sufficient evidence to
               prove beyond a reasonable doubt that [] Appellant did not
               act in justifiable self-defense?

        II.    Whether [] Appellant’s conviction for aggravated assault
               with a deadly weapon under section 2702(a)(4) and simple
               assault under section 2701(a)(2) should be reversed
               because the Commonwealth failed to present sufficient
               evidence to prove beyond a reasonable doubt that []
               Appellant used a deadly weapon?

        III.   Whether [] Appellant’s conviction for possession of a
               prohibitive offensive weapon should be reversed because
               the Commonwealth failed to present sufficient evidence to


1
    The trial court found Appellant not guilty of other charges.

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            prove beyond a reasonable doubt that the knife was a
            prohibited offensive weapon?

      IV.   Whether [] Appellant’s conviction for [REAP] should be
            reversed because the Commonwealth [failed] to present
            sufficient evidence to prove beyond a reasonable doubt
            that [] Appellant placed another []person in danger of
            death or serious bodily injury?

Appellant’s Brief at 6 (suggested answers and unnecessary capitalization

omitted).

      As Appellant’s questions challenge the sufficiency of the evidence to

sustain his convictions, the following applies to our review.

      The standard we apply in reviewing the sufficiency of the
      evidence is 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. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] 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. Beasley, 138 A.3d 39, 45 (Pa. Super. 2016) (quoting

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)).




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      We first address Appellant’s argument that he should have been found

not guilty of the assault and REAP charges because he acted in self-defense.

In so doing, we bear in mind the applicable legal principles:

      While there is no burden on a defendant to prove [a] [self-
      defense] claim, before that defense is properly at issue at trial,
      there must be some evidence, from whatever source to justify a
      finding of self-defense. If there is any evidence that will support
      the claim, then the issue is properly before the fact finder.

      If the defendant properly raises self-defense…, the burden is on
      the Commonwealth to prove beyond a reasonable doubt that the
      defendant’s act was not justifiable self-defense.

      The Commonwealth sustains this burden if it establishes at least
      one of the following: 1) the accused did not reasonably believe
      that he was in danger of death or serious bodily injury; or 2) the
      accused provoked or continued the use of force; or 3) the
      accused had a duty to retreat and the retreat was possible with
      complete safety.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (internal

citations omitted).

      Here, there is no dispute that Appellant properly placed the issue of

self-defense   before   the   trial   court.   The   question   is   whether   the

Commonwealth met its burden of disproving it. Appellant, relying upon his

trial testimony, argues that the Commonwealth failed to do so:

            The facts of this case lead to the conclusion that []
      Appellant did reasonably believe the use of force was necessary.
      [] Appellant testified that Murray violently shoved at the screen
      door to the house, breaking the door, and causing the door to hit
      Appellant. Appellant stated he went to leave because of how
      violent Murray was acting. Murray himself testified that after the
      confrontation at the screen door of the residence, he went to put
      on a shirt and shorts to follow [] Appellant outside, and that []


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      Appellant was walking away from the house. Murray followed []
      Appellant down the walkway from the house, taking his belt off
      as he went. Murray testified that when Appellant asked him if he
      was going to hit Appellant with the belt, he admitted that he
      would if Appellant did not leave. [] Appellant further testified
      that Murray was screaming, cursing, and air punching and
      kicking.

             There is also evidence that Murray followed [] Appellant to
      his truck. Despite Murray’s testimony that he dropped his belt
      by the walkway in front of Ms. Poore’s house, he instead had it
      with him throughout the confrontation with [] Appellant.
      Appellant testified that Murray was holding the belt and came
      after Appellant while he was attempting to enter his truck to
      leave. Once at the truck, Appellant testified that he felt a blow
      to his shoulder, and Murray hung onto Appellant’s shirt and
      pulled it from the front, causing it to rip. Appellant further
      testified that he grabbed his knife from the door of his truck
      because Murray raised the belt over his head, swung the belt
      over [] Appellant’s head, and the belt collided with the
      Appellant’s hand so hard it drove the knife into Appellant’s hand.
      Only then did Murray back away from Appellant, and Appellant
      was able to get into his car to leave without any knowledge of
      Murray being injured. Officer Depenhart stated that the blood
      trail began near, or on, the neighbor’s property and continued
      the length of the sidewalk to the walkway of the residence.

            The evidence presented at the trial paints a picture that
      depicts Murray as the initial, and continued, aggressor during the
      confrontation, and not [] Appellant.        Appellant stated that
      Murray was scaring him, and that he was attempting to leave
      the premises when Murray [came] after him and actually
      [swung] the belt so aggressively at Appellant that he had to
      defend himself. Murray’s actions left Appellant with no other
      choice but to use reasonable force to protect himself from injury.

Appellant’s Brief at 14-16 (citations omitted).

      It is clear to this Court that Appellant’s claim rests upon acceptance of

his testimony, and rejection of the contradictory evidence offered by the

Commonwealth.     This Court will not reweigh evidence or disturb the fact-


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finder’s credibility determinations.    Viewing the evidence in the light most

favorable to the Commonwealth, the evidence was sufficient to disprove

Appellant’s self-defense defense.      As the trial court explained:

      The Commonwealth presented the testimony of Christopher
      Murray and Jacqueline Poore.        Together, their testimony
      established that Appellant (1) had no reasonable belief that he
      was in imminent danger of death or serious bodily injury and (2)
      violated a duty to retreat.

             Christopher Murray testified that other than the altercation
      across the screen door, he did not touch Appellant. Murray
      testified that he did not grab ahold of Appellant’s shirt, nor did
      he rip it. …

             The [trial c]ourt, having considered both Murray’s and
      Appellant’s testimony, found Murray’s and Poore’s testimony
      credible, and found Appellant’s testimony not credible and self-
      serving. Having shown evidence that reasonably permitted the
      [trial c]ourt to conclude that Appellant did not use deadly force
      out of a reasonable necessity, the Commonwealth has met its
      burden.

             The inference that Appellant did not act in self-defense is
      further bolstered by evidence tending to show that Appellant
      violated his duty to retreat. Neither the victim nor Appellant
      disputed whether the knife was in Appellant’s truck during the
      initial confrontation at the screen door.       Appellant walked
      towards his truck and withdrew the knife from it. Given the
      location of the truck, walking toward the truck meant walking
      away from [Murray]. Instead of acquiescing to Murray’s shouts
      that Appellant “get out of [there],” Appellant walked back toward
      Murray with the knife in hand and swung the knife towards
      Murray. According to Murray–and consistent with his injury–
      Murray put his hands up in a defensive posture to cover his face.
      In walking back towards his truck, Appellant showed that he had
      the opportunity to leave the confrontation without further
      incident. Had Appellant gotten in his truck and drove [sic] away
      instead of escalating [the situation] by grabbing a knife, the
      assault would not have occurred.



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             The Commonwealth presented sufficient evidence for the
      [trial c]ourt to conclude that Appellant (1) did not reasonably
      believe he was in danger of imminent death or serious bodily
      injury and (2) violated a duty to retreat. This evidence–which
      the [trial c]ourt found persuasive–necessarily defeats Appellant’s
      attack on the sufficiency of the evidence, and therefore must fail.

Trial Court Opinion, 3/9/2016, at 8-11 (citations and footnote omitted).

      Accordingly, Appellant’s first issue entitles him to no relief from this

Court.

      Appellant next claims that his assault convictions2 cannot stand

because the Commonwealth failed to prove that he used a deadly weapon.

Appellant does not contend that the knife found at his home by Officer

Depenhart falls outside of the definition of a “deadly weapon.”3 Rather, he

contends that “there is a lack of evidence connecting the recovered knife to

the incident involving Murray.”     Appellant’s Brief at 16-17.    Appellant’s

argument is as follows:

      Officer Depenhart testified that he did not have the knife
      examined for fingerprints or DNA evidence, nor did he have any
      of the evidence collected from the scene taken to a lab for
      testing. The only witness for the Commonwealth who testified


2
 18 Pa.C.S. § 2702(a)(4) (“A person is guilty of aggravated assault if he: …
attempts to cause or intentionally or knowingly causes bodily injury to
another with a deadly weapon….”); 18 Pa.C.S. § 2701(a)(2) (“[A] person is
guilty of assault if he: … negligently causes bodily injury to another with a
deadly weapon….”).
3
  “Any firearm, whether loaded or unloaded, or any device designed as a
weapon and capable of producing death or serious bodily injury, or any other
device or instrumentality which, in the manner in which it is used or
intended to be used, is calculated or likely to produce death or serious bodily
injury.” 18 Pa.C.S. § 2301.

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      regarding the object used was Murray, and his statements did
      not prove beyond a reasonable doubt that a deadly weapon had
      been used. Murray did not identify the knife, and had only
      stated that during the altercation, he felt something sharp and
      saw something metallic.       This is less than circumstantial
      evidence. There was no direct testimony as to what actually
      caused Murray’s injuries.

             With a lack of DNA or fingerprint evidence, and the victim
      being unable to specifically identify what he saw, there is not
      enough evidence to prove beyond a reasonable doubt that the
      knife recovered by Officer Depenhart was the object that caused
      Murray’s injuries. The [trial c]ourt should not be left to guess
      what object caused the injuries; if it is, the Commonwealth has
      not met its burden of proving a deadly weapon caused Murray’s
      injuries.

Appellant’s Brief at 17.

      We disagree. First, the trial court’s inference that the sharp, metallic

object that nearly severed Murray’s thumb was in fact the knife that shortly

afterwards was recovered from the arm of Appellant’s couch is abundantly

reasonable.   See Commonwealth v. Sawyer, 357 A.2d 587, 590 (Pa.

Super. 1976) (holding testimony from victim, who sustained a cut hand, that

Sawyer approached him with a “shiny metal object,” coupled with evidence

that a knife was recovered nearby, was sufficient to support inference that

Sawyer attacked the victim with the knife). Second, we consider all of the

evidence actually received in reviewing a sufficiency challenge, and Appellant

himself testified that he grabbed his knife from the door of his vehicle and

used it in his confrontation with Murray.    N.T., 6/2/2015, at 193.      Thus,

contrary to Appellant’s assertion, the trial court did not have to guess what



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caused   Murray’s   injuries   because   Appellant   identified   the   weapon.

Appellant’s second claim is meritless.

      Next, Appellant suggests that the knife recovered from his home does

not qualify as a prohibited offensive weapon under 18 Pa.C.S. § 908, which

prohibits, inter alia, the possession of any “knife, razor or cutting

instrument, the blade of which is exposed in an automatic way by switch,

push-button, spring mechanism, or otherwise….”          18 Pa.C.S. § 908(c).

Appellant argues that the knife in question does not fall within the scope of

subsection 908(c) for two reasons: (1) the blade “has the ability to stay

closed on its own; nothing holds the blade closed,” and (2) although there is

a spring within the knife, it merely “assists with the manual opening of the

blade” rather than opening the blade automatically. Appellant’s Brief at 18.

      The trial court addressed Appellant’s argument as follows:

      On the shaft of the knife, where a user would grip, the knife has
      a lever that exposes the blade in an automatic manner. The
      lever is part of the blade itself. A spring mechanism makes the
      knife flip up into an exposed position. … Here, the knife is
      exposed automatically once the user puts his or her finger into
      the control that is part of the knife’s blade. The blade does not
      need to be manipulated manually in order for it to flip out of the
      handle.

Trial Court Opinion, 3/9/2016, at 15 (citations omitted).

      We agree: the fact that the knife’s blade goes from a state of full

concealment to being fully exposed upon the application of pressure on a

lever places the knife squarely within the definition of a prohibited offensive



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weapon. Cf. Commonwealth v. Ashford, 397 A.2d 420 (Pa. Super. 1979)

(plurality opinion) (holding knife did not fall within the prohibition of

subsection 908(c) where it was “exposed by a flick of the wrist,” not by a

lever or switch, and then only after a lock was released).            We are

unpersuaded by Appellant’s argument that, because some action by the user

is required before the blade springs open, the knife is outside the realm of

“automatic.” Appellant is entitled to no relief on his third claim.

      Lastly, Appellant contends that the Commonwealth failed to produce

sufficient evidence to sustain his REAP conviction.

      “A person commits a misdemeanor of the second degree if he

recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.

      [S]erious bodily injury is defined as bodily injury which creates a
      substantial risk of death or which causes serious, permanent
      disfigurement or protracted loss or impairment of the function of
      any bodily member or organ. To sustain a conviction for [REAP],
      the Commonwealth must prove that the defendant had an actual
      present ability to inflict harm and not merely the apparent ability
      to do so. Danger, not merely the apprehension of danger, must
      be created. The mens rea for recklessly endangering another
      person is a conscious disregard of a known risk of death or great
      bodily harm to another person.

Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa. Super. 2012)

(internal quotation marks and citations omitted).

      Here, Appellant claims that there was insufficient evidence that he

acted with the required mens rea. Appellant’s Brief at 19. Relying wholly on



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his own testimony, which was rejected by the trial court, Appellant maintains

that he “in no way exercised a conscious disregard of a potential risk of

great bodily injury to Murray, by attempting to protect himself from Murray’s

attacks[.]” Id.

     Properly viewing the evidence in the light most favorable to the

Commonwealth as verdict-winner, Appellant, who is 6’4” and weighed more

than 260 pounds, retrieved a knife from his vehicle; exposed the blade;

swung it at 6’1”-and-185-pound Murray, while in close proximity to Murray;

and nearly cut off one of Murray’s digits, causing significant blood loss,

requiring multiple surgeries, and leaving Murray permanently impaired.

That is sufficient evidence to sustain his REAP conviction.      See, e.g.,

Commonwealth v. Moore, 395 A.2d 1328, 1332 (Pa. Super. 1978)

(sustaining REAP conviction where 265-pound defendant beat the rear end

of his 7-year-old stepson with a stick, bruising him so badly that he could

not stand and required extended hospitalization).

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/15/2016




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