J-S06027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ANNETTE SHADDING

                            Appellant                  No. 948 EDA 2016


             Appeal from the Judgment of Sentence March 1, 2016
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000097-2015


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                              FILED APRIL 28, 2017

        Appellant, Annette Shadding, appeals from the judgment of sentence

of four years of probation, imposed March 1, 2016, following a bench trial

resulting in her conviction for simple assault and recklessly endangering

another person (“REAP”).1 We affirm.

        We adopt the following statement of facts from the trial court’s

opinion, which in turn is supported by the record. See Trial Court Opinion

(TCO), 7/19/16, at 1-4. At some time in 2014, Appellant stored some of her

belongings in the home of Neshea Jackson.         After some time passed, Ms.

Jackson contacted Appellant to request that she pick up the belongings.

Appellant was very angry during this phone call.

____________________________________________


1
    18 Pa.C.S. § 2701(a), 2705.


*
    Former Justice specially assigned to the Superior Court.
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       On December 22, 2014, Appellant approached Ms. Jackson, who was

walking with her children.        Ms. Jackson informed Appellant she could not

speak at that time.          In response, Appellant hit Ms. Jackson with an

unidentified object in the left shoulder and the forehead. Ms. Jackson fell to

the ground, hitting her head and shoulder, and the two women began to

struggle. During the altercation Appellant “gnawed” on Ms. Jackson’s finger.

Ms. Jackson did not strike Appellant in return, but attempted to pull herself

up from the ground.

       Police officers arrived and observed Ms. Jackson with visible injuries,

including a large knot on her head and “a cut.” 2         Ms. Jackson identified

Appellant as her assailant.          Appellant lied to police officers about her

identity. Further, police officers observed Appellant had no visible injuries,

was not wearing an arm brace, and did not have her arm zipped into her

jacket. Ms. Jackson lost consciousness3 and was taken by ambulance to the

Hospital at the University of Pennsylvania, where she was diagnosed with a

broken shoulder and head trauma. As a result of her injuries, Ms. Jackson

underwent surgery and physical therapy.4




____________________________________________


2
  The record does not indicate where Ms. Jackson was cut.
3
  See Notes of Testimony (N.T.), 12/29/15, at 74.
4
  The Commonwealth introduced medical records, including x-rays, as well
as photographs taken the night the incident occurred, to illustrate Ms.
Jackson’s injuries. See N.T., at 27-28, 29-32.



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        Appellant   was    arrested     and    charged   with   aggravated    assault,

possession of an instrument of crime,5 simple assault, and REAP.                  The

matter proceeded to trial.

        At trial, Appellant testified that in August 2009, she had been in an

automobile accident and injured her arm. As a result, she no longer had full

use of that arm and wore a brace, which she had zipped into her jacket.

According to Appellant, Ms. Jackson instigated the fight by hitting her in the

back of the head. Appellant claimed that, as a result of the limited use of

her arm, she could not hit Ms. Jackson. She denied striking Ms. Jackson. As

a rebuttal to this testimony, counsel stipulated that Appellant had prior

convictions for crimen falsi, including retail theft and conspiracy.

        Appellant was convicted of simple assault and recklessly endangering

another person, and she was acquitted of the remaining charges. On March

1, 2016, Appellant was sentenced to an aggregate term of four years of

probation.

        Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).                The trial

court issued a responsive opinion.

        Appellant raises the following issue for our review:

        1. The trial court erred when it found [Appellant] guilty [of]
        simple assault and related charges when the evidence was
____________________________________________


5
    18 Pa.C.S. § 2702, 907.



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      insufficient since  self-defense   was  asserted  and  the
      Commonwealth did not overcome its burden to rebut that the
      facts did not establish self-defense or the force used was
      excessive.

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      Appellant claims that the evidence was insufficient to sustain her

convictions because the Commonwealth did not overcome its burden to

rebut her self-defense claim. See Appellant’s Brief at 10. Appellant argues

that she was at a “disadvantage” when Ms. Jackson allegedly attacked her,

as her disabled arm was zipped up in her jacket. Id. Appellant contends

that her injuries were consistent with Ms. Jackson being an initial aggressor

and that she was engaging in self-defense. Id.

      We review a challenge to the sufficiency of the evidence as follows.

      In determining whether there was sufficient evidentiary support
      for a jury’s finding [], the reviewing court inquires whether the
      proofs, considered in the light most favorable to the
      Commonwealth as a verdict winner, are sufficient to enable a
      reasonable jury to find every element of the crime beyond a
      reasonable doubt.        The court bears in mind that: the
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court’s rulings thereon were correct; and the trier of
      fact, while passing upon the credibility of witnesses and the
      weight of the evidence, is free to believe all, part, or none of the
      evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted).

      Force may only be used in self-defense when immediately necessary to

protect oneself.   See 18 Pa.C.S. § 505(a).       When confronted with non-



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deadly force, a defendant’s responding actions must not be excessive under

the circumstances.   See Commonwealth v. Cutts, 421 A.2d 1172, 1173

(Pa. Super. 1980). Excessive force is not justifiable when repelling an attack

by an unarmed assailant. See Commonwealth v. Witherspoon, 730 A.2d

496, 499 (Pa. Super. 1999).

      With regard to a claim of self-defense, the Commonwealth bears the

burden of disproving that defense beyond a reasonable doubt.             See

Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009). This burden

may not be sustained solely on the factfinder’s disbelief of the defendant’s

testimony. Id.

      Here, the evidence Appellant introduced that could potentially support

a claim of self-defense was solely based on her own testimony. She offered

no other evidence in support of this contention. Appellant claimed that Ms.

Jackson had attacked her and that her arm was in a brace and zipped into

her jacket during the altercation.   Counsel stipulated to Appellant’s prior

convictions for crimen falsi for retail theft and conspiracy. See Pa.R.E. 609

(“For the purpose of attacking the credibility of any witness, evidence that

the witness has been convicted of a crime . . . must be admitted if it

involved dishonesty or false statement.”); see also Commonwealth v.

Howard, 823 A.2d 911, 913 n.2 (Pa. Super. 2003) (noting that retail theft

is crimen falsi and may be used to prove a lack of character for

truthfulness).




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        As noted, supra, the burden may not be sustained solely on the

factfinder’s disbelief of the defendant’s testimony.      Rivera, 983 A.2d at

1221.     Accordingly, the Commonwealth introduced the testimony of Ms.

Jackson, who credibly testified that she was walking down the street with

her children and attempted to avoid interaction with Appellant. Ms. Jackson

testified that Appellant attacked her, striking her in the head with an

unidentified object, and that during the altercation, she did not strike

Appellant. Ms. Jackson required surgery for a broken shoulder and physical

therapy as a result of injuries inflicted upon her by Appellant.         Medical

records and photographs corroborated this testimony.

        Further, police officers testified that Appellant was not visibly injured

following the altercation and that her arm was neither in a sling nor zipped

into her jacket. In contrast, Ms. Jackson was visibly injured.

        Accordingly, the Commonwealth introduced sufficient evidence to

disprove Appellant’s claim that she was acting in self-defense and had not

used excessive force.     Witherspoon, 730 A.2d at 499.          Based upon the

above, the evidence was sufficient for the jury to conclude that the

Commonwealth had disproved Appellant’s claim of self-defense beyond a

reasonable doubt. Rivera, 983 A.2d at 1211.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2017




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