J-S47044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
                 v.                              :
                                                 :
                                                 :
    ELIJAH EZEKIAL CLARK-BREAM,                  :
                                                 :
                       Appellant                 :           No. 66 MDA 2019

       Appeal from the Judgment of Sentence Entered December 19, 2018
                  in the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0007288-2017

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                     FILED: OCTOBER 18, 2019

        Elijah Ezekial Clark-Bream (“Clark-Bream”) appeals from the judgment

of    sentence    entered    following    his   conviction    of   simple   assault   and

harassment.1 We affirm.

        In its Opinion, the trial court summarized the relevant factual history as

follows:

               In September 2017, Ciarra Robinson [(“Robinson”)] was
        living with her friend[,] Nicole Wolfe [(“Wolfe”),] in Hanover[,]
        Pennsylvania. Both women were friends with [Clark-Bream2]. On
        September 23, 2017, [Wolfe], [Clark-Bream], and their friends,
        Allesia Cains [(“Cains”)], Hannah Small [(“Small”)], and Nicole
        Kipps [(“Kipps”)] went out to Field of Screams, a Halloween
        attraction, in Lancaster.

             Upon their return [to the Wolfe/Robinson apartment], they
        concealed the presence of [Clark-Bream]. [Robinson] first noticed
____________________________________________


1   See 18 Pa.C.S.A. §§ 2701, 2709.

2   Robinson testified at trial that she did not get along with Clark-Bream.
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     [Clark-Bream] in the apartment[,] as she was leaving through the
     main entrance. [Robinson] testified that upon seeing [Clark-
     Bream,] she asked what he was doing there and told him to leave.
     [Clark-Bream] was arguing with her. Both [Robinson] and [Clark-
     Bream] were swearing. [Robinson] then said, “[w]here is my
     knife?” The knife was never found and [Robinson] did not have it
     when the ensuing altercation with [Clark-Bream] occurred.[FN1]


     [FN1] When asked whether [Robinson] had a knife in her
     possession, [Clark-Bream] testified that she did not have a knife.
     Trial Transcript, 246:24.


            When she was unable to locate her knife, [Robinson] picked
     up [] Kipps’s car keys and popcorn to take them out of the house.
     [] Kipps was [Clark-Bream’s] girlfriend at the time[, and mother
     of his child]. While she was trying to take the popcorn and keys
     out of the house[, Clark-Bream] told her[,] “don’t touch my baby
     mom’s shit.” There was testimony that [Robinson] did throw the
     popcorn and keys at [Clark-Bream].[FN2] When [Robinson] did not
     listen[, Clark-Bream] came up behind her and attacked her.


     [FN2]   Trial Transcript, 22:8.


           [Clark-Bream] punched [Robinson] in the face and kicked
     her. [Robinson] tried to crouch down to protect herself from the
     attack. [Clark-Bream] then stood over her and continued to kick
     her. Eventually, [] Wolfe was able to pull [Clark-Bream] off of
     [Robinson]. Ultimately[, Robinson] ended up with a broken nose
     and bruising on her face and legs.

           [Clark-Bream] and [] Kipps left the apartment. [Robinson]
     then called the police. Officer Matthew Waltersdorff [(“Officer
     Waltersdorff”),] of the Hanover Borough Police Department[,]
     responded to the call. When Officer Waltersdorff arrived[,]
     [Robinson’s] nose was actively bleeding and she was already
     developing bruises….




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Trial Court Opinion, 4/2/19, at 1-3 (two footnotes in original, one footnote

added).

      A jury subsequently convicted Clark-Bream of simple assault, and the

trial court found Clark-Bream guilty of harassment.     For his conviction of

simple assault, the trial court sentenced Clark-Bream to a prison term of one

to two years. The trial court imposed no further penalty for Clark-Bream’s

conviction of harassment. Thereafter, Clark-Bream filed the instant timely

appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

      Clark-Bream presents the following claim for our review: “[Whether]

the trial court erred in instructing the jury on self[-]defense[?]”   Brief for

Appellant at 4. Specifically, Clark-Bream challenges as unwarranted the trial

court’s jury instruction on self-defense, when confronted with non-deadly

force. Id. at 14. According to Clark-Bream, “the appropriate instruction under

the circumstances was for a complete deadly force instruction, including an

instruction on serious bodily injury.” Id. Clark-Bream argues that the jury

had to consider two or more competing versions of the incident. Id. at 19.

Clark-Bream directs our attention to testimony that Robinson was searching

for her knife, and argues that he was not certain whether Robinson had found

her knife when she confronted him. Id. at 19-20. Clark-Bream contends that

“[a] jury instruction without the deadly force and serious bodily injury




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components does not provide the jury with the ability to fully consider the

evidence presented.” Id. at 20.

      In reviewing a jury charge,

      we determine whether the trial court committed a clear abuse of
      discretion or an error of law which controlled the outcome of the
      case. We must view the charge as a whole; the trial court is free
      to use its own form of expression in creating the charge. A trial
      court has broad discretion in phrasing its instructions, and may
      choose its own wording so long as the law is clearly, adequately,
      and accurately presented to the jury for its consideration.
      Moreover, it is well-settled that the trial court has wide discretion
      in fashioning jury instructions. The trial court is not required to
      give every charge that is requested by the parties[,] and its
      refusal to give a requested charge does not require reversal unless
      the appellant was prejudiced by that refusal.

Commonwealth v. Williams, 176 A.3d 298, 314 (Pa. Super. 2017) (internal

citations and quotation marks omitted).

      Defendants are generally entitled to jury instructions they request, so

long as they are supported by the evidence. Commonwealth v. Hairston,

84 A.3d 657, 668 (Pa. 2014). “[T]he reason for this rule is that instructing

the jury on legal principles that cannot rationally be applied to the facts

presented at trial may confuse them and place obstacles in the path of a just

verdict.” Id. A defendant cannot claim entitlement to an instruction that has

no basis in the evidence presented during trial. Id.

      Under the Crimes Code, self-defense falls under the defense of

justification, which is a complete defense to criminal culpability. 18 Pa.C.S.A.

§ 502. Section 505, which governs self-defense, provides as follows:




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

18 Pa.C.S.A. § 505(a). A self-defense charge must be given upon request if

there is evidence presented that the defendant acted in self-defense.

Commonwealth v. Gonzales, 483 A.2d 902, 903 (Pa. Super. 1984).

        Clark-Bream takes issue with the trial court’s instruction on self-

defense, when confronted with non-deadly force. Brief for Appellant at 15.

Clark-Bream asserts that an instruction regarding deadly force was required.3

Id.

        Here, the trial court addressed Clark-Bream’s claim as follows:

        [Clark-Bream] argues that there was evidence presented which
        indicated [that Robinson] confronted [Clark-Bream] while
        armed[,] and that [Clark-Bream’s] responsive use of force was to
        deadly force. Deadly force is defined as “force which, under the
        circumstances in which it is used, is readily capable of causing
        death or serious bodily injury. [18 Pa.C.S.A. § 501]. [The court
        is] not sure what evidence [Clark-Bream] is referring to. [Clark-
        Bream] himself stated that he did not see [Robinson] wielding a
____________________________________________

3
    For such an instruction to be appropriate, three factors must have existed:

        First, the actor must have reasonably believed himself to be in
        imminent danger of death or serious bodily harm, and that it was
        necessary to use deadly force against the victim to prevent such
        harm. Second, the actor must have been free from fault in
        provoking or continuing the difficulty which resulted in the slaying.
        Third, the actor must have violated no duty to retreat.

Commonwealth v. Maione, 554 A.2d 939, 944 (Pa. Super. 1989).



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       knife on the night this altercation occurred. The only thing
       [Robinson] [] was armed with was a bag of popcorn and a set of
       keys, neither of which are readily capable of causing death or
       serious bodily injury.

Trial Court Opinion, 4/2/19, at 6 (footnote omitted). Our review of the record

confirms the trial court’s assessment.

       Robinson testified at trial that, at the time of the incident, she lived in a

two-bedroom apartment located at 20 York Street, in Hanover, Pennsylvania.

N.T., 11/14-16/18, at 90-91. Robinson stated that, for less than one month,

she shared the apartment with Wolfe. Id. at 91. Robinson testified that she

has known Clark-Bream since about 2010. Id. at 93. At around midnight, on

September 24, 2017, Wolfe, Small and Kipps returned to the apartment,

walked through the apartment to the kitchen, and allowed Clark-Bream to

enter the apartment through the kitchen door.           Id. at 96-97.     Robinson

testified that she did not get along with Clark-Bream. Id. at 97. Robinson

told Clark-Bream to leave the apartment. Id. at 98. Rather than leaving the

apartment, Clark-Bream argued with Robinson, using foul language, for

approximately five minutes.      Id.     During the argument, Robinson began

yelling, “where [i]s my knife[?]” Id. at 100. At the time, Clark-Bream was

seated on the couch with Kipps, Wolfe and Small. Id. at 99. Cains would not

give Robinson her knife.      Id. at 100.    Robinson specifically testified that

although she had asked for her knife, she did not leave the kitchen. Id. at

123.




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      Robinson further testified that Kipps’s popcorn and keys were on a chair

near the living room entrance.    Id. at 102.   Robinson explained that she

intended to remove Kipps’s keys and popcorn from the apartment, because

Kipps was Clark-Bream’s girlfriend. Id. at 100. Robinson picked up Kipps’s

keys and popcorn, “and I was taking them out of the front door[,] and that’s

when it happened.” Id. Robinson testified that Clark-Bream “attacked me

from behind and started beating me up. He punched me in my face. He

started kicking me and threw me to the ground.” Id. at 100-01. According

to Robinson, Clark-Bream “just got on top and started kicking me …. I couldn’t

fight back. And then[,] … Wolfe was trying to get him off of me while I was

on the ground and he was kicking me.” Id. at 103.

      Clark-Bream countered Robinson’s account, testifying that, when

Robinson saw him in the apartment, she began yelling, “Where the fuck is my

knife?” and “I am going to stab this nigga.”    Id. at 218-19. Clark-Bream

admitted that he was not scared, but was “a little bit worried at that point.”

Id. at 219. Clark-Bream stated that as Robinson asked for her knife, she went

into her bedroom for approximately three minutes. Id. at 219-20. At that

time, Clark-Bream informed Wolfe that, “if [Robinson] comes out with a knife,

like I don’t know what the hell—what is going to happen.” Id. at 221. As

Robinson came out of her bedroom, Clark-Bream testified, she continued to

yell “where is my knife[?]” Id. at 222. Robinson walked into the kitchen and




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paced, agitated. Id. Clark-Bream expressly acknowledged that, after leaving

the bedroom, Robinson still was looking for her knife. Id.

     Clark-Bream stated that Robinson walked from the kitchen into the

living room. Id. at 222-23. According to Clark-Bream, Robinson then grabbed

Kipps’s bag of popcorn and began throwing it toward the entrance to the

apartment. Id. at 223. Clark-Bream posited, “I think her intention was kind

of throw it out hoping that … [I would] get up and go towards the entrance

door.” Id. at 222-23. However, Clark-Bream also stated that Robinson was

standing in the doorway of the living room and the kitchen when she threw

the popcorn. Id. at 224. According to Clark-Bream’s testimony, as Robinson

threw the popcorn, she screamed at Clark-Bream to get out. Id.

     Clark-Bream further testified that

     whenever I stood up—at that point because [Robinson] stood in
     front of my face and I didn’t know whether she found a knife or
     not, I didn’t [sic] what she was going to do when I stood up. And
     when I looked up, she was [saying to] get the fuck out, get the
     fuck out[,] and got right in my face.

            So, as she is in my face, all I can remember saying was, I
     was like, [Robinson,] just chill. Stop playing with me. I am not
     trying to do this with you right now. And at that point, she goes,
     fuck you and pushed me in the chest. When she pushed me in
     my chest, … I froze for a second. And I didn’t react immediately.
     Initially.

          But immediately after she pushed me, I said like
     approximately .5 seconds later, that’s when she started grabbing
     my shirt and that’s when it took off and that’s what made me go
     off.

     …


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      … [A]fter [Robinson] grabbed me, … I didn’t really punch her
      necessarily, but like the hand I [sic] hit her in the face. And she
      kind of like stumbled back and when [] she stumbled – it wasn’t
      like a fall stumble, it was like a step back and, you know, kind of
      like preparing yourself like – I didn’t hit her.

            And at that point she … got down on the ground and when
      she got down on the ground, move [sic], move out of my way.
      She started trying to block the doorway and like acting crazy. I
      don’t know her intentions were to block the doorway to keep me
      there. She crouched down in the doorway and started flailing her
      arms and acting crazy and bawl[ed] like a baby fit [sic].

Id. at 225-28. Clark-Bream also stated the following:

      I remember hitting [Robinson] that one time and she was like
      away. And I remember grabbing her by the shirt and dragging
      her out of the doorway. After I retrieved [] Kipps and told [Wolfe
      that] we were leaving and I went toward the door and [Robinson]
      was still inside the doorway. At this point[,] she was blocking the
      door. [Clark-Bream stated that as he was leaving, he] moved her.

Id. at 227-28.

      In his testimony, Clark-Bream testified that he was aware that Robinson

owned a knife, but conceded that he was not afraid when Robinson asked for

her knife. Id. at 238-39. Further, Clark-Bream testified that when Robinson

came out of her bedroom, he did not see her with a knife. Id. at 240. Clark-

Bream described the purported acts of “violence” committed against him, by

Robinson, as a “push off,” and a “grab.” Id. at 246.

      Under the circumstances, we discern no abuse of discretion by the trial

court in refusing to issue a deadly force self-defense instruction. There is no

evidence that would support such an instruction, given Clark-Bream’s

testimony that Robinson had continued to ask for her knife after emerging


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from her bedroom; Clark-Bream never saw Robinson with a knife; and

Robinson had used only her hands to grab and push Clark-Bream.

Accordingly, we cannot grant Clark-Bream relief on this claim.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2019




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