J-A27033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JASON GLINKA

                             Appellant                No. 1906 EDA 2015


             Appeal from the Judgment of Sentence June 22, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0012559-2013

BEFORE: PANELLA, LAZARUS, FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 28, 2017

        Appellant, Jason Glinka, appeals from his judgment of sentence of ten

to twenty years’ imprisonment, followed by five years’ probation, imposed

after a jury found him guilty of attempted murder1 and possession of an

instrument of crime (“PIC”).2        Appellant argues that the evidence is

insufficient to sustain his convictions because the Commonwealth failed to

prove the requisite mens rea and failed to disprove self-defense beyond a

reasonable doubt. We affirm.

        The trial court summarized the evidence against Appellant as follows:

           On August 12, 2013, at approximately 8:00 p.m., Scott
           Steigleman (“Complainant”) encountered Regina Burkle,
           his ex-girlfriend, as he walked around the corner to get

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 901(a), 2502(a).
2
    18 Pa.C.S. § 907(a).
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        cigarettes and drinks from his mother’s house, located at
        2938 Belgrade Street. Complainant and Ms. Burkle had an
        on-and-off relationship since 2011 and were engaged in
        2013. They continued to speak frequently even after they
        ended their relationship. On that night, the Complainant
        testified that he was shocked to see Ms. Burkle because he
        thought she was out of town. Ms. Burkle brushed past him
        down the street when he asked her what she was doing in
        his neighborhood. The Complainant followed Ms. Burkle
        into the pizza shop and demanded an answer.            Five
        minutes later, a pizza shop employee asked Ms. Burkle if
        the Complainant was bothering her and told the
        Complainant to leave. Ms. Burkle called [Appellant] to pick
        her up after the Complainant repeatedly refused to leave.

        As the Complainant walked out of the pizza shop, he
        encountered [Appellant], whom he had known for roughly
        two years.[3] [Appellant] and the Complainant previously
        had an altercation on Facebook over [Appellant]
        romantically pursuing Ms. Burkle while the Complainant
        tried to reconcile with her.           Complainant punched
        [Appellant] after [Appellant] pushed him out of the way,
        causing [Appellant] to fall.[4] After [Appellant] regained his
        footing, the Complainant struck him twice more, sending
        him to the ground. [Appellant] stood up again and struck
        the Complainant with a knife near his elbow and then once
        more on his shoulder.          He jumped on top of the
        Complainant, straddled him, and stabbed him numerous
        times, while the Complainant tried to block the strikes.
        Complainant testified that he was stabbed [fourteen]
        times. Ms. Burkle remained inside the pizza shop and
        testified that she did not witness the fight.

        The Complainant received help from the pizza shop
        employee to his aunt’s house on Cedar Street, as he was

3
 Appellant testified that he found Complainant exiting the pizza parlor and
walked toward him, “kn[owing] that something was . . . going to happen.”
N.T., 2/2/15, at 19-20; see also id. at 21-24 (similar testimony).
4
  A crowd gathered around Appellant and Complainant to watch the fight.
Id. at 21-40. Appellant testified that the crowd encouraged Complainant
and was hostile toward him. Id.



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         unable to walk home. Officer Kirk McKee responded to a
         radio call for [a] stabbing and arrived at the Complainant’s
         aunt’s house, where he found the Complainant bleeding on
         the ground and generally unresponsive. Based on the
         Complainant’s condition, he immediately placed the
         Complainant in his patrol car and rushed him to Temple
         University Hospital.

         The Complainant’s medical records indicate that he had
         multiple stab wounds, including a wound to the back of his
         scalp, seven wounds to the left back, one stab wound to
         his left elbow, and one stab wound to the left shoulder. An
         MRI test revealed that the Complainant had a blood clot,
         placing pressure to his spinal cord, which caused his
         inability to move his lower extremities and suffer
         dysfunction of his urinary tract.     Complainant further
         suffered a fracture to a part of his spine and had fluid in
         his chest cavities. Subsequent blood testing revealed that
         the Complainant had Xanax, oxycodone, cocaine and
         marijuana in his system at the time of the stabbing.
         Complainant spent [seven to ten] days in the hospital
         following the stabbing and an additional month at a
         rehabilitation facility. Due to his inability to walk and
         control his bowels as a result of this incident,
         [Complainant] is unable to work and play with his children.

         The Complainant later gave a statement to the police, but
         refused to sign his name to the document. Complainant
         initially only gave a description of the person who stabbed
         him, but later provided the name “Jason” to the detectives.
         In addition, the Complainant identified [Appellant] by
         picture but refused to sign the picture in fear of retaliation.

Trial Ct. Op., 1/11/16, at 2-4 (record citations omitted).

      Following a three-day trial, the jury found Appellant guilty of the

aforementioned crimes. On June 22, 2015, the trial court imposed sentence.

On June 24, 2015, Appellant filed a timely notice of appeal. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.




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      Appellant raises two arguments on appeal, which we re-order for our

review:

          1. Was not the evidence also insufficient for conviction of
          attempted murder, insofar as the Commonwealth failed to
          prove that [Appellant] had the requisite mens rea?

          2. Was not the evidence insufficient to prove the offenses
          of attempted murder and possession of an instrument of
          crime, insofar as self-defense was raised, and the
          Commonwealth failed to disprove self-defense beyond a
          reasonable doubt?

Appellant’s Brief at 3.

      Appellant first argues that the evidence was insufficient to sustain his

conviction for attempted murder, because the Commonwealth failed to prove

that he harbored specific intent to commit attempted murder. We disagree.

          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 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.


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Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted), appeal denied, 138 A.3d 4 (Pa. 2016).

      A person is guilty of attempted murder when he takes a substantial

step toward the commission of a killing with the specific intent to commit

that act.   18 Pa.C.S. §§ 901(a), 2502(a); Commonwealth v. Blakeney,

946 A.2d 645, 652 (Pa. 2008). The jury may find specific intent to kill “from

a defendant’s words or conduct or from the attendant circumstances,

together with all reasonable inferences therefrom, and may be inferred from

the intentional use of a deadly weapon on a vital part of the body of another

human being.”    Commonwealth v. Hornberger, 270 A.2d 195, 198 (Pa.

1970).

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

establishes that Appellant had the specific intent to kill Complainant. During

a fistfight, Appellant pulled a knife and stabbed Complainant in the back,

collapsing Complainant’s lung, causing his chest cavities to fill with fluid, and

resulting in a blood clot that permanently paralyzed his legs and impaired

function of his urinary tract and bowels.       When Complainant fell to the

ground, Appellant leaped on top of his prone body and stabbed him in the

back of the head and six more times in the back. Complainant would have

died had he not undergone surgery immediately.

      The sheer number of times that Appellant stabbed Complainant in his

back and in the back of his head established Appellant’s specific intent. Cf.


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Commonwealth v. Mason, 741 A.2d 708, 712-15 (Pa. 1999) (concluding

evidence was sufficient to establish specific intent to commit first degree

murder where defendant stabbed victim eighteen times in head, neck, chest,

back,    abdomen,   arm,     groin   and   leg,   despite   defendant’s   claim   of

intoxication), abrogated on other grounds, Commonwealth v. Freeman,

827 A.2d 385 (Pa. 2003); Commonwealth v. Cain, 503 A.2d 959, 966-67

(Pa. Super. 1986) (holding specific intent to kill established where defendant

stabbed victim thirteen times, including six in his back, twice damaging

victim’s internal organs).

        In his second argument, Appellant contends that the Commonwealth

failed to disprove self-defense beyond a reasonable doubt. Appellant insists

that (1) Complainant provoked the fight, (2) Appellant reasonably believed

that he had to use deadly force to protect himself from serious bodily

injury,5 and (3) Appellant had no duty to retreat under the circumstances.

For the reasons that follow, we conclude that no relief is due.




5
  The Commonwealth filed an application for post-submission communication
to contest a point made by Appellant’s counsel at oral argument before this
Court—specifically, that Appellant suffered a broken nose and actually
sustained serious bodily injury giving rise to his claim of self-defense.
Although we agree with the Commonwealth that Appellant did not raise this
point in his brief or at trial, we find this point immaterial to our discussion.
We discern no basis upon which to conclude that Appellant failed to raise the
issue of self-defense.      Because our analysis focuses on the evidence
rebutting the claim of self-defense, we dismiss the Commonwealth’s
application as moot.



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     It is well settled that the Commonwealth bears the burden of

disproving        a     self-defense      claim      beyond    a    reasonable     doubt.

Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011).                        A claim of

self-defense

          requires evidence establishing three elements: (a) [the
          defendant] reasonably believed that he was in imminent
          danger of death or serious bodily injury and that it was
          necessary to use deadly force against the victim to prevent
          such harm; (b) [the defendant] was free from fault in
          provoking the difficulty which culminated in the [victim’s
          injuries]; and (c) [the defendant] did not violate any duty
          to retreat.

Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (citations and

quotation marks omitted).              Serious bodily injury is “[b]odily 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.”           18 Pa.C.S. § 2301.        “Although the Commonwealth is

required to disprove a claim of self-defense . . . a jury is not required to

believe     the       testimony   of     the   defendant      who   raises   the   claim.”

Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990) (citation

omitted).

          A number of factors, including whether complainant was
          armed, any actual physical contact, size and strength
          disparities between the parties, prior dealings between the
          parties, threatening or menacing actions on the part of
          complainant, and general circumstances surrounding the
          incident, are all relevant when determining the
          reasonableness of a defendant’s belief that the use of
          deadly force was necessary to protect against death or
          serious bodily injuries . . . No single factor is dispositive.


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         Furthermore, a physically larger person who grabs a
         smaller person does not automatically invite the smaller
         person to use deadly force in response.

Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014) (citations

omitted).

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

disproves Appellant’s arguments relating to self-defense.   First, Appellant

asserts that Complainant ambushed him, but the evidence demonstrates

that Appellant travelled to the pizza parlor to confront Complainant, found

Complainant as he exited the pizza parlor, and walked toward him,

“kn[owing] that something was . . . going to happen.” See N.T., 2/2/15, at

19-20.

     Next, Appellant emphasizes that Complainant knocked Appellant down

twice near the beginning of their fistfight. However, Appellant unreasonably

escalated the fight by twice stabbing Complainant—who was unarmed—while

Complainant was standing.    Furthermore, Appellant straddled Complainant

and stabbed him many more times after Complainant collapsed to the

ground. See Smith, 97 A.3d at 789 (noting Commonwealth disproved self-

defense beyond reasonable doubt where defendant unreasonably escalated

altercation by attacking victim with box cutter after victim pushed him).

Accordingly, the   jury could reasonably infer that Appellant did not

reasonably fear for his life and used more force than was necessary to

defend himself from Complainant’s punches.        See Commonwealth v.



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Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc) (concluding

Commonwealth negated element of self-defense where defendant used

“more force than necessary” to defend himself;         defendant “was at least

seven inches taller than victim, stabbed victim [nineteen] times all over

front and back of torso, and wounds were so deep that victim’s intestines

protruded from his abdomen”); Commonwealth v. Gillespie, 434 A.2d

781, 784 (Pa. Super. 1981) (rejecting claim of self-defense when defendant

used greater force than was reasonably necessary to protect against death

or serious bodily injury during fight on public sidewalk by striking victim in

head twice with baseball bat and kicking prostrate victim in head).

      Third, Appellant argues that he had no duty to retreat during the fight,

because he reasonably believed that he could not retreat with complete

safety because he was in the heat of battle amidst hostile onlookers and

reasonably believed that he was fighting for his life. The evidence shows,

however, that Complainant collapsed to the ground when Appellant stabbed

him. It was reasonable for the jury to conclude that Appellant could have

retreated at this point with complete safety—but in violation of his duty to

retreat, he chose to continue the encounter, jump on top of Complainant,

and stab him multiple additional times.

      Lastly,   Appellant’s   flight   after   the   stabbing   established   his

consciousness of guilt, thereby refuting his claim that he reasonably believed

that he had to stab the prone victim repeatedly in the back to protect



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himself.   See, e.g., Commonwealth v. Spotz, 870 A.2d 822, 825 n. 10

(Pa.   2005)   (reiterating   that    evidence    of   defendant’s   flight   and/or

concealment following crime is admissible to establish an inference of

consciousness of guilt).

       In sum, when we review the evidence in the light most favorable to

the Commonwealth, we are constrained conclude that the evidence was

sufficient to support the verdict.6

       Judgment of sentence affirmed.            Application for post-submission

communication dismissed as moot.




6
  We recognize that other factfinders might have concluded that Complainant
was equally to blame for the tragic outcome of this brawl or that Appellant
should not be punished for his conduct due to the rapid and explosive nature
of the events. Unfortunately for Appellant, the test is not what other juries
might have done but whether the evidence was sufficient for this jury to
reach its verdict.

      Moreover, in his Pa.R.A.P. 1925(b) statement of matters complained of
on appeal, Appellant contended that the trial court erred in sustaining the
Commonwealth’s objections to Appellant’s testimony about Complainant’s
reputation for violent behavior and to defense counsel’s reference to
Complainant’s violent reputation during closing argument. However, we
cannot address these issues because Appellant did not raise them in his
appellate brief. See Commonwealth v. Furrer, 48 A.3d 1279, 1281 n. 3
(Pa. Super. 2012) (noting that under Pa.R.A.P. 2119(a), issues not
developed in appellate brief with pertinent “discussion” and “citation of
authorities” are waived).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




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