J-S30015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARL EMERY ZEDAK                           :
                                               :
                       Appellant               :   No. 1655 WDA 2019

         Appeal from the Judgment of Sentence Entered April 30, 2019
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0001590-2018


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 29, 2020

        Carl Emery Zedak (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of two counts of aggravated assault.1 For

the reasons that follow, we affirm.

        The trial court set forth the relevant facts:

              [A]t trial, Eric Compton … testified that on the night of July
        14, 2018 and into the morning of July 15, 2018, he had invited
        [Appellant] into his home [located in Aliquippa, Beaver County],
        and [Appellant] stayed for a couple of hours. In that time,
        Compton and [Appellant] proceeded to consume large amounts of
        alcohol, and then Compton walked [Appellant] home[, which was
        nearby]. Next, Compton testified that he returned to his home,
        and after about fifteen minutes, [Appellant] returned to
        Compton’s home, claiming he wasn’t done drinking. According to
        Compton, [Appellant] refused to leave, and [Appellant] started
        making inflammatory comments toward Compton’s girlfriend,
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 2702(a)(1) and (4).
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     Kimberly Carter. Compton testified that initially he brushed these
     comments off, but [Appellant] continued, and asked Carter to
     “shake something[,” (i.e., to exhibit her body sexually)]. At this
     point, Compton demanded that [Appellant] leave. Very shortly
     after, an altercation ensued between [Appellant] and Compton.
     According to Compton, while [Appellant] and he were in a bear
     hug, [Appellant] pulled out a knife and stabbed Compton four
     times. As a result of this stabbing, Compton suffered injuries to
     his diaphragm, left lung, spleen, and vital arteries, which required
     surgical intervention to repair.

           After Compton testified, the Commonwealth read multiple
     stipulations to the jury. First, that the City of Aliquippa Police
     found blood on [Appellant’s] jeans and boots when they took him
     into custody. Second, that the blood was Compton’s. Third, that
     clumps of long gray hair were discovered on the floor of Compton’s
     kitchen. Fourth, the discovered hair belonged to [Appellant].
     Lastly, [Appellant] had two bite marks on his back caused by
     Compton.

           Next, Dr. Graciela Bauza, a licensed trauma surgeon, was
     called to testify. Dr. Bauza testified that she was working at UPMC
     Presbyterian Hospital when Compton arrived for emergency
     treatment. Dr. Bauza testified that Compton had a large amount
     of blood loss at the scene, and that he had a large amount of blood
     accumulating in his left chest that was compressing his lung. It
     was this bleeding that prompted the decision to operate on
     Compton. Ultimately, Compton had to undergo two operations.
     Dr. Bauza then testified that it was her medical opinion that
     Compton would have died but for the medical treatment he
     received.

            The Commonwealth also called Carter, who testified that
     she was present on the night of the incident, and she drank Tito’s
     vodka and Jägermeister with Compton and [Appellant]. She also
     testified that she could “confidently” recall viewing [Appellant]
     consume more than five drinks. Then Carter testified that at some
     point later into the night, [Appellant] made some inappropriate
     comments about touching Carter’s breasts and buttocks, and this
     prompted Compton to jump up and punch [Appellant]. Carter
     testified that [Appellant] and Compton engaged in a bear hug, and
     she tried to pull them apart. At that point, Carter testified that
     she ended up on the floor and [Compton] was laying in a pool of


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        blood. Carter testified that she called 911 and the paramedics
        came to take Compton to the hospital.

               Next, the Commonwealth called Abigail Byrd, who is Carter’s
        daughter that was eight years old at the time of the incident. Byrd
        testified that she was sleeping in her room with her sister, and
        they were caused to awaken by a loud bang on the door. She
        opened up the door and witnessed [Appellant] stab Compton with
        a pocket knife. After Byrd testified, the Commonwealth rested
        their case.

              Next, [Appellant] testified as part of his own case.
        [Appellant] testified that he was invited to Compton’s home, and
        they drank an entire bottle of Jägermeister and an entire bottle of
        vodka over the course of the night. [Appellant] then testified that
        he did not try to start a fight, but he admitted to making
        inappropriate comments toward Carter, because he was so
        intoxicated. Next, [Appellant] testified that Compton got up
        quickly from the table and punched him two or three times, and
        he tried to get away from Compton. [Appellant] testified that
        Compton was biting him and the fight lasted about thirty to forty
        seconds. Then[, Appellant] … pulled out a knife and stabbed
        Compton “to get him off of me.” [Appellant] testified that he used
        the knife because Compton was much younger and stronger than
        him, and he was unable to pull himself away from Compton.

Trial Court Opinion, 11/18/19, at 2-6 (unnumbered).

        The Commonwealth charged Appellant with two counts of aggravated

assault, as well as one count each of attempted homicide and possession of

an instrument of crime (PIC).2 The matter proceeded to trial in March 2019.

The jury found Appellant guilty of two counts of aggravated assault, and not

guilty of attempted homicide and PIC.




____________________________________________


2   18 Pa.C.S.A. §§ 2501(a), 901(a), 907(a).

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        On March 15, 2019, the Commonwealth filed notice of its intent to seek

a mandatory minimum sentence pursuant to Pennsylvania’s “three strikes”

statute, 42 Pa.C.S.A. § 9714. The statute reads:

        Where the person had at the time of the commission of the current
        offense previously been convicted of two or more crimes of
        violence arising from separate criminal transactions, the person
        shall be sentenced to a minimum sentence of at least 25 years of
        total confinement ….

42 Pa.C.S.A. § 9714(a)(2) (emphasis added); see also id. § 9714(g)

(defining “crime of violence” and enumerating the various crimes that fall

under that definition).

        On April 30, 2019, the trial court held a sentencing hearing.       The

Commonwealth introduced evidence that Appellant had two prior convictions

that fell under Section 9714(a)(2) and (g), i.e., arson and attempted

homicide.3 The trial court sentenced Appellant to an aggregate 25 to 50 years

in prison pursuant to Section 9714(a)(2).

        Appellant filed a timely post-sentence motion, which was denied by

operation of law. Appellant then filed a timely notice of appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant raises three issues for our review:

        I.    DID   THE   COMMONWEALTH      PRESENT    SUFFICIENT
              EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT
              APPELLANT DID NOT ACT IN JUSTIFIABLE SELF-DEFENSE?



____________________________________________


3   18 Pa.C.S.A. §§ 3301(a)(1)(i), 2501(a), 901(a).

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      II.    DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
             DENIED APPELLANT A NEW TRIAL ON THE BASIS THAT THE
             VERDICT RENDERED WAS NOT AGAINST THE WEIGHT OF
             THE EVIDENCE?

      III.   IS THE MANDATORY SENTENCE IMPOSED BY THE TRIAL
             COURT UNDER 42 PA.C.S.A. § 9714 UNCONSTITUTIONAL
             AND AN ILLEGAL SENTENCE WHICH VIOLATED THE EX
             POST FACTO CLAUSE OF THE UNITED STATES AND
             PENNSYLVANIA CONSTITUTIONS?

Appellant’s Brief at 7.

      In his first issue, Appellant argues that his convictions cannot stand

because the Commonwealth failed to disprove his claim that he stabbed

Compton in self-defense. See id. at 15-20.

      Preliminarily, we recognize:

      When reviewing a sufficiency of the evidence claim, this Court
      must view the evidence and all reasonable inferences to be drawn
      from the evidence in the light most favorable to the
      Commonwealth as verdict winner, and we must determine if the
      evidence, thus viewed, is sufficient to prove guilt beyond a
      reasonable doubt. This Court may not substitute its judgment for
      that of the factfinder. If the record contains support for the
      verdict, it may not be disturbed. Moreover, a jury may believe all,
      some or none of a party’s testimony.

Commonwealth v. Burns, 765 A.2d 1144, 1148 (Pa. Super. 2020) (citations

and paragraph break omitted).

      Additionally,

      [w]here there is a claim of self-defense, the Commonwealth has
      the burden to prove beyond a reasonable doubt that the killing[,
      or the infliction of serious bodily harm,] was not committed in self-
      defense. In order to disprove self-defense, the Commonwealth
      must prove beyond a reasonable doubt one of the following
      elements: (1) that the defendant did not reasonably believe it was
      necessary to kill [or seriously harm] in order to protect himself

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      against death or serious bodily harm, or that the defendant used
      more force than was necessary to save himself from death, great
      bodily harm, or the commission of a felony; (2) that the defendant
      provoked the use of force; or (3) that the defendant had a duty
      to retreat and that retreat was possible with complete safety. See
      18 Pa.C.S.A. § 505(b)(2); see also Commonwealth v. Hill, 629
      A.2d 949, 952 (Pa. Super. 1993).            If the Commonwealth
      establishes any one of these three elements beyond a reasonable
      doubt, then the conviction is insulated from a defense challenge
      to the sufficiency of the evidence where self-protection is at issue.
      See Hill, 629 A.2d at 952.

Burns, 765 A.2d at 1148-49.

      Here, Appellant contends that the Commonwealth failed to meet its

burden to disprove his claim of self-defense, where the evidence established:

      Compton was the initial physical aggressor by punching
      [Appellant] at least three or four times in the head, pulling a clump
      of hair out of [Appellant’s] head and by deeply biting [Appellant’s]
      back at least two or three times before [Appellant] pulled out his
      pocket knife to stab Compton to get away.

Appellant’s Brief at 16; see also id. (asserting that Appellant was prevented

from fleeing Compton’s attack because Compton and Carter “stood in place

between   [Appellant]   and   the   front   door,   with   Compton   restraining

[Appellant]”).   According to Appellant, the Commonwealth failed to prove

beyond a reasonable doubt that he:

      (1) did not reasonably believe it was necessary to stab Compton
          in order to protect himself against death or serious bodily
          harm;

      (2) provoked the use of force, where Compton was the initial
          aggressor;

      (3) failed to exercise his duty to retreat, where the evidence
          showed that Compton and Carter had blocked his means of
          escape.

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Id. at 17-19.

       Upon review, we find the evidence of record sufficient to disprove

Appellant’s claim of self-defense and sustain his two aggravated assault

convictions.4 Both Carter and Compton testified that Appellant provoked the

confrontation by making derogatory and insulting comments about Carter,

and repeatedly refusing to leave their home. See N.T., 3/12/19, at 59-60;

N.T., 3/13/19, at 19-20. Carter stated that Appellant’s sexual comments were

unwanted and caused her to ask Appellant — unsuccessfully — to leave. See

N.T., 3/13/19, at 19-20. Compton initially declined to respond to Appellant’s

derogatory comments.          See N.T., 3/12/19, at 61.   However, Appellant

persisted, and defied Compton’s request that he not enter the bedrooms

where Compton’s minor daughters were sleeping. Id. at 62-64. Compton

again told Appellant to leave, but Appellant ignored him. See id. Compton

became agitated and attempted to push Appellant out the front door; in


____________________________________________


4 The Crimes Code provides that a person is guilty of aggravated assault, in
relevant part, where he:

    (1) attempts to cause serious bodily injury to another, or causes such
    injury intentionally, knowingly or recklessly under circumstances
    manifesting extreme indifference to the value of human life;

    ***

    (4) attempts to cause or intentionally or knowingly causes bodily
    injury to another with a deadly weapon[.]

18 Pa.C.S.A. § 2702(a)(1) and (4).

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response, Appellant punched Compton in the side. Id. at 64. It was only

after these actions that Compton punched Appellant. Id. Given this record,

we discern no support for Appellant’s claim that Compton was the initial

aggressor.

      Moreover, Appellant escalated what was initially a scuffle into a knife

attack, where Appellant was the only person armed. N.T., 3/12/19, at 64-65;

N.T., 3/13/19, at 23, 31. Appellant does not dispute that he stabbed Compton

four times. N.T., 3/12/19, at 155. Compton lost substantial amounts of blood

and suffered serious injuries which, Dr. Bauza testified, would have been fatal

without surgical intervention. Id. at 165, 167-68.

      Thus, the evidence, viewed in the light most favorable to the

Commonwealth, establishes that Appellant’s excessive and disproportionate

use of deadly force was unjustifiable to protect himself from serious bodily

harm or death. See Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa.

Super. 2009) (where (1) defendant provoked the use of force against the

victim after a verbal dispute concerning defendant’s girlfriend; (2) the victim

initially defused the dispute and did not strike defendant; (3) after one of

defendant’s friends punched the victim’s friend, the victim stepped forward to

protect him; and (4) defendant stabbed the unarmed victim, which resulted

in his death – holding that the Commonwealth carried its burden to disprove

defendant’s claim of self-defense); Burns, 765 A.2d at 1149 (holding that

defendant “was not acting in self-defense under 18 Pa.C.S.A. § 505(b)(2).


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Assuming that the victim initiated the attack, it is apparent from the severity

of the victim’s wounds[, which defendant inflicted with a knife upon the

unarmed victim,] that [defendant] used more force than was reasonably

necessary to protect himself from serious bodily injury.”); see also

Commonwealth v. Smith, 97 A.3d 782, 789 (Pa. Super. 2014) (same).5

Accordingly, the Commonwealth disproved Appellant’s claim of self-defense

beyond a reasonable doubt, and his first issue is meritless.

       Appellant next claims that the trial court erred in determining that the

jury’s verdict was not against the weight of the evidence. See Appellant’s

Brief at 20-21.

       To prevail on a challenge to the weight of the evidence, an appellant

must establish that the evidence is “so tenuous, vague, and uncertain that the

verdict shocks the conscience of the court.” Commonwealth v. Smith, 146

A.3d 257, 265 (Pa. Super. 2016) (citation omitted).         “One of the least

assailable reasons for granting or denying a new trial is the lower court’s

conviction that the verdict was or was not against the weight of evidence ….”

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). Moreover, “[t]he

weight of the evidence is exclusively for the finder of fact, who is free to

believe all, none, or some of the evidence and to determine the credibility of


____________________________________________


5 We further note the trial court gave the jury a thorough instruction
concerning self-defense.       See N.T., 3/14/19, at 19-23; see also
Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004) (stating that a
jury is presumed to follow a trial court’s instructions).

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the witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super.

2015) (citation omitted).

      Here,   Appellant     challenges   the   jury’s   verdict,   asserting   that

uncontradicted evidence purportedly showed (1) Compton was the initial

aggressor, who repeatedly punched Appellant in the face, bit him, and ripped

hair from his scalp; and (2) Appellant was forced to stab Compton to escape

and avoid serious bodily injury. See Appellant’s Brief at 20-21.

      The jury, as fact-finder, was free to believe all, part, or none of the

testimony (which we summarized above in addressing Appellant’s first issue);

it is well-settled that credibility determinations are solely within a fact-finder’s

province and we may not reweigh the evidence. Talbert, supra. Further, to

the extent the testimony of Appellant and Compton/Carter conflicted, the jury

ostensibly credited the latter, and rejected the former. See id. Accordingly,

the trial court did not err in rejecting Appellant’s weight challenge, nor does

the jury’s verdict shock our conscience. See Smith, supra.

      In his third and final issue, Appellant argues that the trial court imposed

an illegal sentence pursuant to 42 Pa.C.S.A. § 9714(a)(2), in violation of the

ex post facto clauses of the United States and Pennsylvania Constitutions.

See Appellant’s Brief at 21-28. Appellant concedes:

      (1) he had prior convictions for arson – in 1988 – and attempted
          homicide – in 1996 – both of which are enumerated as
          “crimes of violence” under 42 Pa.C.S.A. § 9714(g); and




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      (2) his conviction of aggravated assault (serious bodily injury) in
          this case also constitutes a “crime of violence” under Section
          9714(g).

Appellant’s Brief at 22. However, Appellant claims that the prior version of

Section 9714, which was in effect at the time of his first two “crimes of

violence,” contained a 7-year “lookback” period; therefore, Appellant asserts,

“at the time of his second crime of violence, … Appellant would not have even

had his conviction [of arson in 1988] considered his ‘second’ under the statute,

since the two convictions were over 8 years apart.” Id. at 24.

      “Issues relating to the legality of a sentence are questions of law. Our

standard of review over such questions is de novo and our scope of review is

plenary.”   Commonwealth v. Prieto, 206 A.3d 529, 534 (Pa. Super.

2019) (citation omitted).     Additionally, to “fall within the ex post facto

prohibition, a law must be retrospective — that is it must apply to events

occurring before its enactment — and it must disadvantage the offender

affected by it by altering the definition of criminal conduct or increasing the

punishment for the crime.” Commonwealth v. Davis, 760 A.2d 406, 410

(Pa. Super. 2000) (citation omitted).

      There is no merit to Appellant’s claim that Section 9714 is an ex post

facto law, as it is clear the statute is not retroactive.       This Court, in

Commonwealth v. Ford, 947 A.2d 1251 (Pa. Super. 2008), rejected a nearly

identical claim, reasoning:

      [Section 9714,] as it currently exists, reflects a legislative
      amendment enacted December 20, 2000, which omitted the

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     requirement that to be considered as strikes, previous convictions
     must have been committed within seven years of the date of the
     instant offense for which a defendant is receiving sentence.
     See 2000, Dec. 20, P.L. 811, No. 113, § 2 (effective in 60 days).

     Instantly, [appellant] argues that any crimes which occurred prior
     to the amendment to section 9714 should not be considered
     strikes for purposes of sentencing a defendant as a third strike
     offender. However, in Commonwealth v. Smith, 866 A.2d 1138
     (Pa. Super. 2005), appeal denied, 583 Pa. 682, 877 A.2d 462
     (2005), a panel of this Court firmly rejected the argument that
     section 9714 was retroactive. See id. at 1143. In so finding, this
     Court found it determinative that section 9714 applies
     “prospectively only to future offenses and [does] not change the
     punishment for the predicate offense.”         Id. at 1143, citing
     Commonwealth v. Brown, [] 741 A.2d 726, 732 (Pa. Super.
     1999) [(en banc)] (holding that section 9714 is not an ex post
     facto law), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001).
     Moreover, the Court found that “even if we were to deem § 9714
     ‘retroactive’ on some level because it takes into account
     convictions that occurred prior to its enactment, we would find
     that the legislature surely intended such a result, thereby
     satisfying [1 Pa.C.S.A.] § 1926 [(presumption against retroactive
     effect of statutes)].” Id. Accordingly, [appellant’s] argument that
     the application of section 9714 is illegally retroactive is without
     merit.

Ford, 947 A.2d at 1253-54.

     Finally, 42 Pa.C.S.A. § 9714(e) provides that a sentencing court has no

authority   to   impose   a   sentence   less   than   what   is   mandated   by

statute. Accordingly, the trial court had to sentence Appellant pursuant to

Section 9714, which is not an ex post facto law or unconstitutional. See Ford,

supra.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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