J-S33001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
MATTHEW DAVID HENKEL                        :
                                            :
                           Appellant        :
                                            :     No. 1641 WDA 2014

            Appeal from the Judgment of Sentence September 8, 2014
       in the Court of Common Pleas of Allegheny County Criminal Division
                        at No(s): CP-02-CR-0014480-2013

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 05, 2016

        Appellant, Matthew David Henkel, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas following

a jury trial and convictions for criminal attempt-criminal homicide1 and

aggravated assault.2       Appellant contends his sentence is illegal under

Alleyne v. United States, 133 S. Ct. 2151 (2013) and that the evidence

was insufficient to convict him of attempted homicide because he acted in

self-defense. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 901(a).
2
  18 Pa.C.S. § 2702(a)(2). The charge of recklessly endangering another
person was withdrawn. See Order, 9/8/14.
J-S33001-16

        A jury trial was held on June 17-19, 2014. We summarize the relevant

testimony as follows.      Police Officer Matthew James Toney testified, inter

alia, as follows:    On August 15, 2013, he was dispatched for a shooting.

N.T., 6/17/2014, at 51-52.       “Officer Alex was in route.”3    Id. at 52.   911

advised that there were shots fired and a male was shot in the street, “just

outside the address originally dispatched, 509 Elizabeth.” Id. He received

“information that the shooter might be in a residence.” Id. at 54. Officer

Alex, Officer Mike Lewis, and Officer Toney went to the location of the

original call from 509 Elizabeth Street. Id. Appellant was in the residence.

Id. at 55. Officer Toney observed a firearm in a holster on a table inside the

residence at 509 Elizabeth Street. Id. at 56-57. Appellant was taken into

custody. Id. at 56.

        Jamal Dixon, the victim, testified to the following. He was walking his

dog near his house at 1 Elizabeth Street. N.T., 6/18/14, at 119-120. He

saw a neighborhood “young guy” in his teens from Elizabeth Street.4 Id. at

123.     Dixon asked Morgan about “an event that happened a week before,

with him hitting [Dixon’s] car with a basketball.” Id. at 125. The basketball

hit the passenger side window of his car. Id. at 126. Morgan “denied he

was ever playing with the basketball that day over there, and that it was

another kid; and then another gentleman[, identified as Appellant,] walked

3
    Our review of the record did not reveal the officer’s first name.
4
    This individual was identified as Jacob Morgan. Id. at 393.



                                        -2-
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up.” Id. at 127-28. The conversation with Morgan “started to become an

argument.” Id. at 128. Dixon characterized his discussion with Appellant as

an argument.    Id.   at 130.    Appellant told Dixon to leave his half-brother

alone. Id.     Dixon brought the dog back to his house so his fiancée could

watch the dog while he cleaned the yard of the dog’s waste. Id. at 134. He

testified that he cleaned up with a Giant Eagle bag.          Id.   Appellant and

Morgan went back into their house.        Id. at 135.    Appellant, Morgan, and

another child came back outside and Appellant asked to see the mark on

Dixon’s car. Id. at 136. Morgan said someone else did it. Id. There was

yelling during the argument.      Id.    Dixon walked away and Appellant was

cursing. Id. Dixon asked Appellant to walk down the street because of the

cursing in front of Dixon’s     house.   Id. at 137.    Appellant said he did not

have to go and that “Pittsburgh passed the Stand Your Ground Law.” Id.

     Dixon testified:

        So then, after that, you know, I started walking back down
        towards him, like, you know, just, go ahead down the
        street. So he pushes me; and after he pushes me, I said,
        if you, you know, put your hands on me, again, I’m going
        to hit you in the head with this bag of dog shit; and that’s
        when he just pulled the gun out.

        [The Commonwealth]: . . . Now, did you push him at all?

        A: No, never.

        Q: Did you hit him?

        A: No, never.




                                         -3-
J-S33001-16

       Q: Did you make any threat beyond threatening to hit him
       with the bag of dog poop?

       A: No, never.

       Q: Did you bring your dog into the street at any point?

       A: Never.

       Q: Did your fiancée bring your dog into the street at any
       point?

       A: Never.

                                       *    *    *

       Q: [A]t the time that he pushed you, were you guys close
       together?

       A: Yes.

       Q: Arguing?

       A: Yes.

                                 *    *    *
       Q: So what did you do?

       A: Like, I just, like, turned myself to, like, protect myself. .
       ..

                                 *    *    *

       Q: . . . Did you just put your hands up a moment ago on
       the stand?

       A: Yes.

       Q: [D]id you put your hands up like that at that time?

       A: Yes. . . .




                                     -4-
J-S33001-16

Id. at 138-43. Dixon was shot in the arm and the left hip. Id. at 144-45.

As he tried to crawl away, he heard more shots.           Id. at 146.    After the

paramedics came and he was in the ambulance, “they said, we need to

hurry up. There is another one in the chest, and there is another one in the

pelvic area.” Id. at 149-50.

     Kaelin Bubonovich testified as follows. She was Dixon’s fiancée. Id.

at 200-01.    Dixon did not attempt to hit Appellant or make any threats

“other than threatening to hit him with the bag of dog poop.” Id. at 212.

She had custody of the dog prior to the shooting.              Id.    After Dixon

threatened to hit Appellant with the bag, Appellant pushed Dixon.            Id. at

213. Appellant “took a step back; and the next thing I know there was a

gun and shots being fired.” Id. She

        heard two to three shots. I saw [Dixon] hit the ground.
        He yelled, I’ve been shot; and at this point I was already
        calling 911, and yelling, please stop, please stop; and he
        hit the ground; and he tried to, like, get cover underneath
        our car . . . . He was trying to get cover on the car; and
        [Appellant] just kept firing. Then I finally heard the gun,
        click, click, click; and I knew that it was out of bullets . . . .

Id. at 214.

     Daniel W. Best testified that he lives at 3 Elizabeth Street. Id. at 241-

42. On the date of the incident, he heard two gunshots and he “started to

go to the front of the house, to go outside to see what was happening . . .

and right before I got near the front door, [he] heard two or three more




                                      -5-
J-S33001-16

shots.” Id. at 244-45. He heard at least two more shots the second time

but “it could have been three or four” shots. Id. at 245.

        Brian Kocher testified to the following. He lives at 2 Elizabeth Street.

Id. at 250.      He heard three shots fired and then he saw Dixon “start

crawling. Then [he] heard at least four more shots . . . .” Id. at 253.      He

did not see a dog at any time during this incident.      Id. at 254.    Danielle

Kocher, Brian’s wife, testified. Id. at 260, 263. She initially heard two shots

and then “like, four more shots.” Id. at 265. She did not see the dog in the

street when she looked out of her window. Id. at 272.

        Mary Morgan,5 another neighbor, testified on behalf of Appellant that

Dixon “struck [Appellant] somehow, and the force knocked him over . . . .”

Id. at 312. When Appellant got up, “he had a gun.” Id.         There was no gap

in between the shots being fired. Id. at 320.       On cross-examination, she

testified, inter alia, as follows:

          [The Commonwealth]: And you testified today that Jamal
          Dixon hit [Appellant], struck him physically?

          A: He made contact with him; but I don’t know exactly
          how. He made contact enough that there was a shove.

          Q: Did you not testify on direct that Jamal Dixon─

          A: I thought that he punched him, yes, with his right, yes.

          Q: ─and knocked him over?         Those were your words,
          correct?


5
    Mary was Jacob’s Mother. Id. at 299.



                                      -6-
J-S33001-16

          A: He knocked him back, is what I said. He knocked
          [Appellant] back enough that he didn’t completely fall on
          the ground. [Appellant] caught himself.

Id. at 335.

      Jacob Morgan testified that he and Appellant went with Dixon to look

at the damage to Dixon’s car.        Id. at 358.   Dixon admitted there was

nothing wrong with his car “and he said, it’s all good.” Id. at 59. He said

that Dixon “stated that he had to stick up for himself because of the

Travon[6] Martin case.” Id. at 359-60. Appellant responded that “the Stand

Your Ground Law was put into Pittsburgh a couple years back.” Id. at 360.

Appellant started to walk away and “Dixon became upset.” Id. Dixon “said

I’m going to hit you with this dog shit; and he ran towards” Appellant. Id.

He testified that Dixon hit Appellant on “[t]he side of his face. The side of

his head area.” Id. at 364. Appellant “stumbled backwards. He almost fell

over; and he barely caught his balance with his hand as he fell back.” Id.

Appellant “as he came up, he came up with the gun.” Id. at 365. There

was a “very slight difference between the shots.” Id. at 367.

      Appellant testified on his own behalf. He “observed Jacob Morgan up

the street in a verbal confrontation with somebody.”       Id. at 398.    He

testified, inter alia, as follows:

          [Defense Counsel]: Tell us what happened.

6
  We note the proper spelling of “Trayvon” contains a “y” omitted in the
transcript. However, we reproduce the spelling of the name as it appears in
the transcript.



                                      -7-
J-S33001-16

       A: As I stated, I was walking up Anthony Street. On the
       same side of the street as Jacob Morgan. Mr. Dixon was
       on the opposing side of the street. I walked up Anthony
       Street. I passed Elizabeth Street; and that’s when I came
       in contact with Jacob Morgan.

          At that time Jacob Morgan said, this guy’s trying to beat
       me up.      He’s accusing me of hitting his car with a
       basketball. I advised Jacob Morgan at that time─I asked
       Jacob Morgan, did you do it. He said, no. I said, just walk
       away. Then just walk away.

                                      *    *   *

       Q: And then what happened?

       A: Mr. Dixon then said─asked who I was. I said I was
       Jacob Morgan’s brother; and we were walking away. We
       were─I said, sir, we’re walking away. . . .

       Q: Did Mr. Dixon have his dog with him at that time?

       A: Yes, he did.

       Q: Would you give us a description of the dog?

       A: Just a big pit bull.

                                 *    *    *

       Q: Why did you say you were his brother?       You’re really
       not his brother, are you?

       A: No, I’m not.

       Q: Why did you say you were his brother?

       A: Because we were just friends.

       Q: What happened?

       A: Mr. Dixon then turned his tirade against myself.

       Q: Would you describe what happened?


                                     -8-
J-S33001-16



       A: He was threatening me, saying that, . . . he mentioned
       he had been in the Army, in Iraq, and he had guns in his
       house. He wasn’t afraid to go get them. He made threats
       about trading a zip to have people down from the Hill
       District to take care of us.

          At that time I said, Mr. Dixon, we have no problems
       with you. We would just like to walk away. We’re going to
       turn around and walk the opposing direction of you so you
       do not have to see us on the street anymore.

       Q: What was his response, if anything?

       A: He said, I don’t care which way you go, I’ll keep
       following you. . . .

                               *    *    *

       Q: Were any profanities being used?

       A: By Mr. Dixon, yes.

       Q: Did you use any profanity?

       A: No, I did not.

                               *    *    *

       Q: What happened next?

       A: . . . Mr. Dixon stood on [the] corner as we continued to
       walk away yelling threats about getting guns, and shooting
       us, and harming us.

       Q: Did you take any action by calling the police or anything
       like that?

       A: No. I─I walked away. I thought that walking away was
       the best way to handle the situation.

                               *    *    *

       Q: What happened to stop─or did it stop?


                                   -9-
J-S33001-16



         A: It eventually stopped when Mr. Dixon left the scene. . .
         .
Id. at 402, 404-08.

     Appellant took Jacob Morgan home. Id. at 410.

        Q: Why did you then escort Mr. Morgan to his house?

        A: Because he asked me to.

        Q: Would you tell us what happened?

        A: After he asked me to walk him home, I said that I
        would walk him home. . . . We made a left onto Elizabeth
        Street; and I saw Mr. Dixon, and I didn’t know Mr. Dixon’s
        name at the time, but I saw Mr. Dixon then in front of
        where I now know to be his home, with his girlfriend.

                                 *         *       *

        Q: Then what happened?

        A: We went back outside and I asked Mr. Dixon if we could
        talk about this, if we could resolve it.

        Q: Why would you go outside and get involved with Mr.
        Dixon after he make all these threats to you?

        A: I thought─I was just─I didn’t understand why he was
        behaving the way that he did. I thought that if we could
        look at the car, and we could assess the damage, that
        things could be resolved, and there wouldn’t be anymore
        threats to Jacob Morgan.

                             *       *         *

        Q: . . . Would you tell the jury what happened?

        A: I asked Mr. Dixon if we could take a look at the car. He
        said, we could. We met in the street. Went over to the
        car. He pointed out the smudge mark on the window.

                                 *         *       *


                                         - 10 -
J-S33001-16

       Q: What was said and done after that?

       A: Mr. Dixon, and I, and Jacob at the vehicle, parted on
       what I thought were amicable terms. . . . Mr. Dixon went
       back towards his side of the street, in front of his home,
       and I went back towards the home of Mary Morgan, 509.

       Q: Now, did Mr. Dixon have his dog with him at the area
       where the car was being viewed?

       A: When we were viewing the car, the girlfriend had the
       dog.

                               *     *      *

       Q: Now, where did you go after you had the little
       discussion at the car?

       A: I went back in front of Mary Morgan’s home.

                               *     *      *

       Q: What’s the next thing that happened?

       A: Mr. Dixon made a statement that he had to protect
       himself since the Travon Martin case.

       Q: Where did that come from?

       A: I have no idea; and I said, what are you talking about.
       He said, you know, I have to watch myself because of
       Travon Martin.

                               *     *      *

       Q: What happened next?

       A: I said, you know, when he brought up about that, I
       agreed with Mr. Dixon that the case of Travon Martin in
       Florida was a messed up case, because Mr. George
       Zimmerman had been advised 13 times by police dispatch
       not to get out of his car, not to pursue Travon Martin. He
       ignored police dispatchers, took the time to place the
       vehicle in park, get out of the car, close the door, and then


                                   - 11 -
J-S33001-16

       pursue Mr. Travon Martin down an alley and provoke an
       attack, in which he was then able to use the Statute in
       Florida to be involved in a shooting that resulted in the
       death of Travon Martin.

       Q: Did you explain this or attempt to explain this to Mr.
       Dixon?

       A: Yes. I was trying to explain that to Mr. Dixon.

       Q: What was Mr. Dixon’s reaction as you were trying to
       explain this?

       A: He just kept─he        was     getting   mad,   very,   very
       aggressively mad.

                               *     *      *

       Q: How far away was Mr. Dixon from you when you were
       arguing about the Travon Martin case?

       A: We were on opposing sides of the street.

                               *     *      *

       Q: Was the dog on a leash at that time or not on a leash?

       A: It was on a leash until he went over and took the dog
       off the leash . . . .

       Q: When did that occur?

       A: That occurred right after he said, I’m going to come
       take a piece out of you, and when I’m done taking a piece
       out of you, I’m going to let my pit bull take a piece out of
       you as well.

                               *     *      *

       Q: Was anybody else saying anything around that area, or
       was it just confined between you and Mr. Dixon?

       A: Right before Mr. Dixon came across the street at me,
       his girlfriend said, leave him alone. He’s not worth it.


                                   - 12 -
J-S33001-16



                               *     *      *

       As he was coming at me, I was walking backwards in
       retreat . . . .

                               *     *      *

       He said, I’m going to attack you.       I’m going to put
       your─I’m going to put your head in this bag of dog shit.

                               *     *      *

       He came up in front of Mary Morgan’s home . . . He hit me
       on the side of the head . . .

                               *     *      *

       Q: Did you actually go back and fall to the ground?

       A: I fell backwards, but I was able to catch myself with my
       left hand.

       Q: And would you show us how that happened?

       A: Stand up?

       Q: Yes, please.

       A: He struck me, and as I fell backwards, and I caught
       myself on the ground with my left hand; and when I─as
       soon as I did that, he was right─right in front of me, on
       top of me.

       Q: Then what happened?

       A: As I was coming back up, I drew my .25 caliber Phoenix
       Arms, and I pressed the trigger.

                               *     *      *

       Q: How many times did you press the trigger, if you know?




                                   - 13 -
J-S33001-16

           A: It was quick, the first volley of rounds.   I thought I
           missed him or the gun had misfired . . . .

                                      *     *      *

           Q: You fired the first time, and then there was a gap of
           some time. . . .

           A: Correct.

           Q: Between that. How much time elapsed between that?

           A: Just a second or two.

                                      *     *      *

           Q: Do you know how many times you pulled the trigger?

           A: Twice.

           Q: Now, this is not an automatic weapon? You’ve actually
           got to pull the trigger for each time a bullet is fired?

           A: Correct.

N.T., 6/18/14, at 402, 404-08, 410-17, 419-21, 423-24.

      Appellant was cross-examined by the Commonwealth, inter alia, as

follows:

           [The Commonwealth]: The question was, you felt that you
           needed to draw your weapon and fire it to protect yourself
           from this unarmed person?

           A: Yes.

           Q: Correct?

           A: Yes.

           Q: Now, as we sit here today─well, you listened to the
           recorded statement; and in your statement you─and on
           the 911 call, you were adamant that Jamal Dixon’s vicious


                                          - 14 -
J-S33001-16

        pit bull was being used as a weapon against you, isn’t that
        right?

        A: Yes.

        Q: Correct?

        A: Yes.

        Q: That you were afraid that you were going to be bitten
        and eaten by this pit bull, is that right?

        A: Something along those lines, yes.

        Q: Yes. Why didn’t you shoot the dog?

        A: Because the dog was in the street with the girlfriend.

        Q: You said in your statement that the dog was coming
        after you. He came across the street. He called for his
        girlfriend with the dog, which was a pit bull at that time,
        and the dog was coming up behind him. He’s coming at
        me. That’s what you said in your statement?

        A: Correct.

        Q: That’s not what you said today, is it?

        A: I don’t understand.

        Q: Is it? You did not say that today, did you?

        A: No.

Id. at 455-56

     On June 19, 2014, Appellant was convicted of criminal attempt-

criminal homicide7 and aggravated assault. Appellant was sentenced to ten


7
  We note that the jury specifically found Appellant caused serious bodily
injury. See N.T., 6/19/14, at 88.



                                   - 15 -
J-S33001-16

to twenty years’ imprisonment for criminal attempt. There was no further

penalty for the aggravated assault conviction.     Appellant did not file post-

sentence motions. Appellant filed a timely notice of appeal. Appellant filed

a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal and the trial court filed a responsive opinion.

      Appellant raises the following issues for our review:

         I. Did the trial court impose an illegal sentence by
         considering the five-year mandatory minimum sentence
         set forth under 42 Pa.C.S. § 9721, which this Court has
         deemed unconstitutional in its entirety?

         II. Was the evidence insufficient to support a conviction for
         attempted homicide as the Commonwealth failed to
         disprove [Appellant’s] self-defense claim beyond a
         reasonable doubt?

Appellant’s Brief at 4.8

      First, Appellant argues “[t]he trial court imposed an illegal sentence by

considering the five-year mandatory minimum sentence set forth under 42

Pa.C.S. § 9712, which this court has deemed unconstitutional in its entirety.”

Id. at 25. Appellant contends the sentence was unconstitutional pursuant to



8
  We note that although Appellant did not file post-sentence motions, the
claims raised on appeal are properly before us. See Commonwealth v.
Foster, 17 A.3d 332, 337 (Pa. 2011) (challenge to legality of sentence
nonwaivable); Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa.
Super. 2011) (sufficiency of evidence claim may be raised for first time on
appeal); Pa.R.Crim.P. 606(A)(7).




                                     - 16 -
J-S33001-16

Alleyne and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.

2014), appeal denied, 124 A.3d 309 (Pa. 2015). Id.

     Our review is governed by the following principles.      “Issues   relating

to the legality of a sentence are questions of law[.] . . .     Our standard of

review over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015) (citation omitted).

     In the case sub judice, the trial court opined:

           [Appellant] was convicted of criminal attempt-homicide,
        and aggravated assault. The attempted homicide charge
        specifically accused [Appellant] of causing “serious bodily
        injury.” The statutory maximum was 40 years. The
        guidelines suggested a sentence of 90 months to the
        statutory limit of 480 months in the standard range. The
        [c]ourt’s sentence was 120 months to 240 months. So,
        the sentence was 30 months above the bottom rung of this
        guideline range.     This sentence was well within the
        guideline range and leaning significantly toward the lower
        end of the range.

           The [c]ourt began its explanation with guidelines on
        purpose. The [c]ourt was influenced by its work and
        findings. But, more importantly, the [c]ourt began there
        to show that the mandatory minimum which
        [Appellant] complains about did not enter the
        [c]ourt’s thinking when it imposed this sentence. . . .

Trial Ct. Op., 8/31/15, at 2 (footnotes omitted and emphasis added).

     At sentencing, the trial court stated, inter alia, as follows:

        [The jury] thought that you wanted to instigate more
        violence, they believed that you tried to induce the victim
        where you could describe him as a aggressor or the violent
        one, but it didn’t work and the jury didn’t believe you and
        that’s why we’re here today and that’s why I am


                                     - 17 -
J-S33001-16

         sentencing you to 10 to 20 years in the State Correctional
         Institution with 20 year probation.

N.T. Sentencing Hr’g, 9/8/14, at 32.       The sentencing order provided, in

pertinent part, as follows:

            AND NOW, this 8th day of September, 2014, the
         defendant having been convicted in the above-captioned
         case is hereby sentenced by this [c]ourt as follows. The
         defendant is to pay all applicable fees and costs unless
         otherwise noted below:

         Count 1-18 § 901 §§ A─Criminal Attempt─Criminal
         Homicide (H1)
           To be confined for a minimum period of 10 Year(s) and
           a maximum period 20 Year(s) at SCI Camp Hill.
           This sentence shall commence on 09/08/2014.

                                 *     *      *

         Count 2─18 § 2702 §§ A1─Aggravated Assault (F1)
           A determination of guilty without further penalty.

         Count 3─18 § 2705 §§ A─Recklessly endangering Another
         Person (M2)
            Offense Disposition: Withdrawn.

Order, 9/8/14, at 1.

      Instantly, the trial court did not consider the mandatory minimum set

forth in 42 Pa.C.S. § 9712. Thus, Appellant’s sentence is not illegal on that

ground. See id.

      Lastly, Appellant argues that the evidence was insufficient to support

his conviction for attempted homicide because the Commonwealth did not

disprove his claim that he acted in self-defense beyond a reasonable doubt.

Appellant’s Brief at 29. Appellant contends that he was in fear for his life



                                     - 18 -
J-S33001-16

when he reached for his gun. Id. at 33. Appellant avers that “[b]ecause it

did not appear that he had hit Dixon, [Appellant]─fearing that Dixon would

continue the attack─fired his gun again.” Id. at 34.

        We review a sufficiency of the evidence claim as follows:

           “[T]he critical inquiry on review of the sufficiency of the
           evidence to support a criminal conviction . . . does not
           require a court to ‘ask itself whether it believes that the
           evidence at the trial established guilt beyond a reasonable
           doubt.’” Instead, it must determine simply whether the
           evidence believed by the fact-finder was sufficient to
           support the verdict.        The Superior Court properly
           articulated the correct substantive standard enunciated by
           this Court for review of a sufficiency of the evidence claim:
           all of the evidence and any inferences drawn therefrom
           must be viewed in the light most favorable to the
           Commonwealth as the verdict winner.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007)

(citations omitted).

        In Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001), our Supreme

Court set forth the following analysis of a claim that the evidence was

insufficient to disprove a claim of self-defense:

              The use of force against a person is justified when the
           actor believes that such force is immediately necessary for
           the purpose of protecting himself against the use of
           unlawful force by the other person. See 18 Pa.C.S. §
           505(a).[9] When a defendant raises the issue of self-

9
    Section 505(a) provides:

           (a) Use of force justifiable for protection of the
           person.─The 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



                                      - 19 -
J-S33001-16

        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.

Id. at 345 (some citations omitted).

        In order to establish self-defense in this situation where
        appellant used deadly force upon another, it must be
        shown that a) the actor was free from fault in provoking or
        continuing the difficulty which resulted in the use of deadly
        force; b) the actor must have reasonably believed that he
        was in imminent danger of death or serious bodily injury,
        and that there was a necessity to use such force in order



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

18 Pa.C.S. § 505(a). However, pursuant to Section 505(b)(2):

        (2) The use of deadly force is not justifiable under this
        section unless the actor believes that such force is
        necessary to protect himself against death, serious bodily
        injury, kidnapping or sexual intercourse compelled by force
        or threat; nor is it justifiable if:

           (i) the actor, with the intent of causing death or serious
           bodily injury, provoked the use of force against himself
           in the same encounter; or

           (ii) the actor knows that he can avoid the necessity of
           using such force with complete safety by retreating,
           except the actor is not obliged to retreat from his
           dwelling or place of work, unless he was the initial
           aggressor or is assailed in his place of work by another
           person whose place of work the actor knows it to be.

18 Pa.C.S. § 505(b)(i)-(ii) (emphasis added). Section 501 defines the word
“believes” as “reasonably believes.” 18 Pa.C.S. § 501.




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J-S33001-16

         to save himself or others therefrom; and c) the actor did
         not violate any duty to retreat or to avoid the danger.

Commonwealth v. Harris, 665 A.2d 1172, 1174 (Pa. 1995) (citations

omitted).

      “It remains the province of the jury to determine whether the

accused’s belief was reasonable, whether he was free of provocation, and

whether he had no duty to retreat.” Commonwealth v. McClendon, 874

A.2d 1223, 1230 (Pa. Super. 2005) (citation omitted).       Where there was

conflicting evidence10 presented as to the issue of whether the defendant

acted in self-defense, “[t]he jury was entitled to believe the testimony of the

Commonwealth’s witnesses and disbelieve the testimony of” the defendant.

Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa. Super. 2003).

      In the instant case, the trial court opined:

             Let us begin with an obvious observation. [Appellant’s]
         self-defense claim was put before a jury and they rejected
         it. They had the opportunity to credit [Appellant’s] version
         of events but they choose not to.

                                  *     *      *

         The government’s evidence showed [Appellant] was the
         aggressor and he could have avoided the situation entirely.

10
  We note that “[q]uestions concerning inconsistent testimony . . . go to the
credibility of the witnesses. This Court cannot substitute its judgment for
that of the jury on issues of credibility.” Commonwealth v. DeJesus, 860
A.2d 102, 107 (Pa. 2004) (citations omitted).




                                      - 21 -
J-S33001-16

         Jamal Dixon told the jury that after the discussion about
         the basketball hitting his car was going nowhere, he
         walked back toward his house. This separation did not
         stop [Appellant] from leveling obscenities at him. Dixon
         told [Appellant] to take the language down the street so
         children do not have to hear it.         Dixon approached
         [Appellant] towards the middle of the street. He told
         [Appellant] to go down the street. . . . [Appellant] then
         pushed Dixon. Dixon told him if he put his hands on him
         again, Dixon was going to hit him with a bag of dog poop.
         [Appellant] then pulled gun from his waist. . . .
         [Appellant] fired his gun. Dixon dropped to the ground.
         He could not run. He had to crawl to a safe spot by a car.
         This   scenario    shows      the   government   disproved
         [Appellant’s] claim of self-defense.

Trial Ct. Op. at 5-6. We agree no relief is due.

      Appellant presented a claim of self-defense, viz., that he was in fear

for his life when Dixon pushed him. See Torres, 766 A.2d at 345; Harris,

665 A.2d at 1174.    However, the Commonwealth presented overwhelming

evidence rebutting the assertion of self-defense.      Dixon testified that

Appellant was the aggressor. Kaelin Bubonovich testified that Dixon did not

attempt to hit Appellant. Mary Morgan testified that Dixon struck Appellant.

See Reynolds, 835 A.2d at 731.         The jury was entitled to believe the

Commonwealth’s witnesses and disbelieve Appellant. See id.; McClendon,

874 A.2d at 1230.      Therefore, the evidence, viewed in the light most

favorable to the Commonwealth as the prevailing party, was sufficient to

disprove that Appellant acted in self- defense under Section 505.       See

Ratsamy, 934 A.2d at 1235-36.        Accordingly, we affirm the judgment of

sentence.



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J-S33001-16

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2016




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