J-S03044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRELL M. MOFFATT                         :
                                               :
                       Appellant               :   No. 1505 WDA 2019

         Appeal from the Judgment of Sentence Entered August 8, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0002233-2016


BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED FEBRUARY 13, 2020

        Terrell M. Moffatt (Moffatt) appeals the judgment of sentence entered

on August 8, 2017, by the Court of Common Pleas of Erie County (trial court).

He argues here that because he acted in self-defense and defense of others,

the evidence adduced at his jury trial was legally insufficient to sustain his

convictions on charges of aggravated assault with a deadly weapon, reckless

endangerment, and possession of an instrument of crime.1         On that same




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*   Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. § 2702(A)(1),(4) (aggravated assault with a weapon); 18
Pa.C.S. § 2705 (reckless endangerment); 18 Pa.C.S. § 907(B) (possessing
instruments of crime).
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basis, he contends that his convictions are against the weight of the evidence.

We affirm.

                                               I.

       This case arises from a shooting that took place just outside of Moffatt’s

residence in 2016.2       According to Moffatt, the two alleged victims (Andre

Cathey and Jarrod Jones), came to his home to borrow money to purchase

drugs and became violent when Moffatt would not lend as much money as

they wanted. After Cathey and Jones dragged Moffatt outside and threatened

to shoot him, Moffatt drew his own firearm and shot at the two men as he

retreated back inside, believing this was necessary to protect himself, as well

as his wife and three children who were inside the home. Several rounds from

Moffatt’s gun struck Cathey in the legs and abdomen.              Moffatt’s wife

corroborated his story through her testimony.

       Conversely, Cathey and Jones identified Moffatt as the sole aggressor.

In their account, they went unarmed to Moffatt’s home to obtain crack cocaine

from him. Cathey tried to steal the crack cocaine Moffatt had placed on a

scale in his kitchen. Moffatt drew a gun and fired at Cathey and Jones as they

fled the house. Cathey testified that he fell to the ground immobilized after



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2 The case facts are gleaned from our review of the trial transcripts in the
certified record.




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sustaining several gunshot wounds to his legs, and that Moffatt shot him again

in the abdomen while standing directly over him.3

        Since Moffatt admitted to possessing a weapon and intentionally

shooting at Cathey and Jones, the central question before the jury was

whether Moffatt acted in self-defense or the defense of others.          At the

conclusion of the jury trial, Moffatt was found guilty of aggravated assault,

reckless endangerment, and possession of an instrument of crime.4 The trial

court imposed an aggregate prison term of between 60 and 120 months, to

be followed by three years of probation.         The judgment of sentence was

entered on August 8, 2017. Moffatt did not file post-sentence motions or a

notice of appeal.

        Moffatt filed a pro se petition for PCRA5 relief on August 10, 2018, and

counsel was appointed. PCRA counsel filed a supplement to Moffatt’s petition.

The only ground was that trial counsel was ineffective in failing to timely file

a notice of appeal, entirely depriving him of appellate review. On February 5,


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3 The victims’ testimony differed in that Cathey claimed he and Jones went to
Moffatt’s home to purchase drugs from him, while Jones stated their plan was
always to wrestle Moffatt to the ground and steal his drugs. Cathey also
denied fighting with Moffatt in the home, but Jones stated that they did so
once Cathey grabbed the drugs from Moffatt’s scale.

4The jury found Moffatt not guilty of attempted homicide, and he prevailed
on a motion for judgment of acquittal as to one count of carrying a firearm
without a license.

5   See 42 Pa.C.S. §§ 9541-46 (PCRA).


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2019, Moffatt’s appellate rights were reinstated due to his counsel’s oversight,

and Moffatt was advised by the court order to file his notice of appeal within

30 days from the date of reinstatement.

       Moffatt then filed a motion for reconsideration of his sentence, nunc pro

tunc, as well as a motion for a new trial and/or arrest of judgment, all of which

was denied in the opinion and order dated March 13, 2019. Moffatt filed a

notice of appeal on April 22, 2019, and the trial court filed a memorandum

opinion pursuant to Pa.R.A.P. 1925(a). See Trial Court Opinion, 5/16/2019.

This Court quashed that appeal on July 10, 2019, finding that the notice was

untimely and post-sentence motions had not been authorized.

       Moffatt then filed a pro se petition for PCRA relief on July 3, 2019. He

claimed that appellate counsel failed to timely file his notice of appeal,

resulting in the total loss of his appellate rights. On July 22, 2019, counsel

was appointed to represent Moffatt on his PCRA claim. Counsel was ordered

to amend or supplement the pro se petition or submit a No Merit letter.6

       An amended PCRA petition was filed on September 5, 2019, requesting

that Moffatt’s appellate rights once more be reinstated, nunc pro tunc, and

that Moffatt be permitted to file post-sentence motions, nunc pro tunc. The

motion was granted on September 18, 2019.



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6 See Commonwealth v. Turner, 544 A.2d                      927    (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988).


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       Moffatt then filed a post-sentence motion, nunc pro tunc, on September

27, 2019. He moved for judgment of acquittal and for a new trial, asserting

that the evidence was insufficient and that his convictions were against the

weight of the evidence. Moffatt also moved to modify his sentence. The trial

court denied the motions on September 30, 2019. Moffatt filed a notice of

appeal the next day. Moffatt and the trial court complied with Pa.R.A.P. 1925.

See Trial Court Opinion, 10/24/2019.7

       In his brief, Moffatt now asserts that the evidence was legally insufficient

to sustain his convictions because he established that he acted in self-defense

and defense of his family. See Appellant’s Brief, at 6. He also contends that

his convictions are contrary to the weight of the evidence. Id. On both claims,

the issue of self-defense is dispositive as to all the subject offenses because

there is no dispute that Moffatt possessed and shot his gun at Jones and shot

Cathey multiple times, causing serious injuries.

                                               II.

                                               A.

       Moffatt argues first in his sufficiency claim that the alleged victims

instigated the shooting and that his use of deadly force was reasonably



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7 The Pennsylvania Supreme Court has recognized that counsel’s failure to
preserve a defendant’s appellate rights constitutes per se ineffectiveness,
warranting reinstatement of those rights. See generally Commonwealth
v. Rosado, 150 A.3d 425 (Pa. 2016).


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necessary to thwart imminent harm.               He relies on his own testimony to

establish the justifiable use of force, while dismissing the testimony of the two

victims as inconsistent.        See 18 Pa.C.S. § 505(a) (providing affirmative

defense to criminal charges where 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 himself against the use of unlawful

force by such other person on the present occasion.”). We agree with the trial

court that this claim has no merit.8

       On review of such a ruling, the applicable standard of review is as

follows:

       [W]hether the evidence at trial, and all reasonable inferences
       derived therefrom, when viewed in the light most favorable to the
       Commonwealth as verdict-winner, are sufficient to establish all
       elements of the offense beyond a reasonable doubt. We may not
       weigh the evidence or substitute our judgment for that of the fact-
       finder. Additionally, the evidence at trial need not preclude every
       possibility of innocence, and the fact-finder is free to resolve any
       doubts regarding a defendant’s guilt 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. When
       evaluating the credibility and weight of the evidence, the fact-
       finder is free to believe all, part or none of the evidence. For
       purposes of our review under these principles, we must review the
       entire record and consider all of the evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276-77 (Pa. Super. 2006).




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8Moffatt’s self-defense claim is identical as to all his convictions on counts of
aggravated assault with a deadly weapon, reckless endangerment, and
possession of an instrument of crime.

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      Here, the evidence before the jury was sufficient to sustain Moffatt’s

convictions. Cathey and Jones testified at trial that Moffatt drew a firearm as

they ran away from his home. Cathey was shot several times. Importantly,

Cathey and Jones testified that Moffatt was the initial aggressor and that

neither of them possessed a weapon nor threatened to use a weapon against

Moffatt or his family.

      Even if some of the details in the victims’ stories were arguably

inconsistent as Moffatt asserts in his brief, the jury was free to credit all, part

or none of each witnesses’ testimony. Correspondingly, the jury was free to

reject all or part of the evidence Moffatt produced to support his claim of self-

defense. In finding Moffatt guilty of the subject offenses, the jury necessarily

concluded that his version of events was not credible, and that one or both of

the victims told enough of the truth to satisfy all the elements of the subject

offenses beyond a reasonable doubt.

      Viewing the record in the light most favorable to the Commonwealth as

verdict-winner, the trial court properly ruled that Moffatt failed to raise a

meritorious sufficiency claim.       The fact-finder’s judgment cannot be

substituted on sufficiency grounds merely because some witnesses were found

more credible than others were. See Commonwealth v. Gibbs, 981 A.2d

274, 281–82 (Pa. Super. 2009) (“An argument that the finder of fact should

have credited one witness’ testimony over that of another witness goes to the




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weight of the evidence, not the sufficiency of the evidence.”); see also

Commonwealth v. W.H.M., 932 A.2d 155, 160 (Pa. Super. 2007) (same).

                                       B.

      Moffatt’s weight of evidence claim likewise lacks merit. A trial court’s

ruling on such a claim is subject to an abuse of discretion standard, and it is

rarely disturbed on appeal when it hinges on the credibility of witnesses:

      When the challenge to the weight of the evidence is predicated on
      the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is so
      unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not cognizable
      on appellate review.

Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004)

(citation omitted). “Moreover, where the trial court has ruled on the weight

claim below, an appellate court’s role is not to consider the underlying

question of whether the verdict is against the weight of the evidence.”

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).                 “Rather,

appellate review is limited to whether the trial court palpably abused its

discretion in ruling on the weight claim.” Id.; see also Commonwealth v.

Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (“[T]he 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.”).

      Based on the facts and reasoning above, the trial court did not abuse its

discretion in rejecting Moffatt’s claim that his convictions were contrary to the

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weight of the evidence. Cathey and Jones testified that they posed no threat

to Moffatt or his family prior to Moffatt’s use of lethal force against them.

Moffatt claimed that he acted in self-defense when Cathey and Jones

threatened violence.

      The trial court properly exercised its discretion in denying Moffett relief

because none of the evidence that Moffatt provided (his testimony and the

testimony of his wife) made the evidence of guilt “so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture[.]”

Rossetti, 863 A.2d at 1191. The trial was essentially a swearing match on

the issue of self-defense, and the trial court properly allowed the jury to

resolve that dispute.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2020




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