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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FATEEN GROCE

                            Appellant                  No. 894 EDA 2016


             Appeal from the Judgment of Sentence March 7, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002881-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 11, 2017

        Fateen Groce appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his conviction of

simple assault.1 Upon review, we affirm.

        Groce was charged based upon his alleged involvement in an

altercation at 1800 Madison Street, Philadelphia. Officer Ken Fazio testified

that he saw Groce kicking and stomping on another man’s chest. N.T. Non-

Jury Trial, 12/18/15, at 10. Officer Fazio had not observed what preceded

the kicking nor did he identify the victim. However, a radio call he received

had reported that a person was screaming and that two people wearing

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2701(a).
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white hoodies were involved in an altercation.         Officer Fazio testified that

Groce and the victim were both wearing white hoodies.2 Thereafter, Officer

Fazio arrested Groce for assault.          Groce was convicted of simple assault

following a non-jury trial on December 18, 2015, and sentenced to five to

ten months’ incarceration and one year of probation on March 7, 2016. This

timely appeal followed.3



____________________________________________


2
 Defense counsel argued that a third person was involved in the altercation,
asserting that two men in white hoodies were attacking the third person.
See N.T. Non-Jury Trial, 12/18/15, at 47. However, this assertion was not
supported by Officer Fazio’s testimony that only two men were involved.
See id. at 10.
3
 In this matter, as in Commonwealth v. Hood, 872 A.2d 175 (Pa. Super.
2005),

       the trial judge did not provide us with a 1925(a) opinion or direct
       us to the places in the record where he states the reasons for his
       decisions. Ordinarily, the remedy for non-compliance with the
       Pa.R.A.P. 1925(a) is a remand to the trial court with directions
       that an opinion be prepared and returned to the appellate court.
       Although we do not approve or sanction the trial court’s failure
       to comply with Rule 1925(a), our review of the record, in
       particular, the notes of testimony from . . . the trial transcript,
       adequately apprise[s] us of the trial court’s reasoning in relation
       to the [] issues raised herein. Therefore, we decline to delay
       this case further by remanding for the preparation of a [Rule]
       1925(a) opinion.

Id. at 178 (citations omitted). Here, the trial judge is no longer on the
bench; however, the court’s reasoning in deciding the issue raised on appeal
can be apprised from the record and the notes of testimony. Accordingly,
we proceed to review Groce’s claim on the merits. Id.




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      On appeal, Groce raises the following question for our review: “Was

not the evidence insufficient to convict [Groce] of simple assault where there

was a claim of self-defense inherent in the facts of the case and the

Commonwealth failed to disprove beyond a reasonable doubt, that [Groce]

acted in self-defense?” Brief for Appellant, at 3.

      In considering sufficiency of the evidence claims,

      we must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in the
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. . . . Where
      there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      Of course, the evidence established at trial need not preclude
      every possibility of innocence and the fact-finder is free to
      believe all, part or none of the evidence presented.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

The Commonwealth can satisfy its burden via wholly circumstantial

evidence. Id.

      Groce argues that because the arresting “officer had not witnessed the

genesis of the incident,” an “inherent self-defense claim” is presented by the

facts of this matter. Brief for Appellant, at 7. Groce argues that the burden

shifted to the Commonwealth to disprove his self-defense argument beyond

a reasonable doubt because “[t]he only evidence as to the initial aggressor

came from the officer who happened upon the incident after it had already

begun.” Id.




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        The elements that the Commonwealth must prove in order to convict a

person of simple assault include that (1) he or she causes bodily injury to

another, (2) with the requisite state of mind, which can be recklessly,

knowingly, or intentionally.    See 18 Pa.C.S. § 2701.      Bodily injury is the

“impairment of physical condition or substantial pain.” See 18 Pa.C.S. §

2301.

        As to self-defense,

        [t]he 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). 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. If there is any evidence that will support
        the claim, then the issue is properly before the fact finder.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001) (citations

omitted).

        No evidence was presented in this matter to justify a finding of self-

defense.     Instead, the testimony of Officer Fazio indicated that Groce

repeatedly kicked and stomped on the victim, who was on the ground. This

clearly satisfies the definition of simple assault. See 18 Pa.C.S. § 2701. At

that point, even had there been a need for self-defense earlier in the

altercation, Groce was clearly no longer in danger.          Thus, his physical

treatment of the victim had moved beyond acting in self-defense into



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assaultive behavior, since force was no longer “immediately necessary for

the purpose of protecting himself against the use of unlawful force[.]” 18

Pa.C.S. § 505 (emphasis added). Accordingly, we find that without evidence

to support the claim of self-defense, the Commonwealth was not required to

disprove the defense. Torres, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




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