J-A24012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD YOUNG

                            Appellant                No. 1532 EDA 2014


          Appeal from the Judgment of Sentence December 20, 2013
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008336-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 29, 2015

        Appellant, Richard Young, appeals form the judgment of sentence

entered December 20, 2013, in the Court of Common Pleas of Philadelphia

County, following his conviction of aggravated assault, simple assault,

recklessly endangering another person, possession of an instrument of

crime, and terroristic threats.1 We affirm.

        We take the underlying history of this matter from the trial court’s

Rule 1925(a) opinion.

        FINDINGS OF FACT

              On May 30, 2013, at approximately 10 p.m., Jerome Pierce
        (hereinafter “the complaining witness”) was at home on 6230
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a)(4), 2701, 2705, 907 and 2706, respectively.
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     Reedland Street. N.T. 10/28/2013 at 8-9. He and his girlfriend,
     Patricia Jenkins (hereinafter “Jenkins”), had a verbal argument
     upstairs in the home. Id. at 10. At the time, [Young] … was at
     the home visiting Jenkins’ daughter. Id. at 21. During the
     argument between the complaining witness and Jenkins, [Young]
     ran from the lower floor of the home to the floor where the
     complaining witness and Jenkins were arguing, and words were
     exchanged between the complaining witness and [Young]. Id. at
     10.

            During the exchange of words, both the complaining
     witness and Jenkins requested [Young] to leave the home. Id.
     at 12. While [Young] was leaving, but still inside the home, he
     informed the complaining witness that he was a “dead man.” Id.
     He reiterated the threat once outside the home. Id. Once the
     complaining witness made his way outside of the home, he
     instructed [Young] to “throw away his guns and his knives … and
     knuckle up.” Id. at 13. The complaining witness got into the
     fighting position. Id. At this time, without a punch yet being
     thrown by either man, [Young] pulled out a razor from the right
     side of his body with his right hand and sliced the complaining
     witness’ left hand. Id. The complaining witness was cut while
     standing in the street in front of the home. Id. at 28.

           After being cut, the complaining witness immediately left
     the altercation and went inside the home to attend to his
     wounds. Id. at 14. An ambulance was called to the home. Id.
     at 15.    When the police arrived, a blood trail led Officer
     Thompson inside the home and up the steps to the second floor,
     where he found the complaining witness in the bathroom with a
     blood-soaked towel wrapped around his left hand. Id. at 31-32.
     [The complaining witness] received 16 stiches and was cut so
     deep, he suffered nerve damage in his hand. Id. at 15.

           Although [Young] admits he purposely sliced the
     complaining witness (Id. at 37), he contends, contrary to the
     complaining witness’ testimony, that he was hit twice by the
     complaining witness in the back of the head, once inside the
     home and once outside.          Id. at 37.       However, the
     Commonwealth illustrated that on the day of the incident …
     [Young] informed the police that he was only struck once in the
     back of the head. Id. at 40.

     PROCEDURAL HISTORY



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             [Young] requested and was granted a waiver of a jury
      trial. The bench trial took place before the Honorable Sean F.
      Kennedy on October 28, 2013. Based on the evidence and
      testimony, [Young] was found guilty of [the aforementioned
      charges]. [The trial court later sentenced Young] to three to six
      years[’] incarceration.

Trial Court Opinion, 12/12/14 at 1-3 (footnote omitted).

      Young raises the following issues for our review.

      A. Was not the evidence insufficient to convict appellant of
         aggravated assault, simple assault, recklessly endangering
         another person, and possession of instrument of crime, where
         the Commonwealth failed to disprove appellant’s claim of self-
         defense beyond a reasonable doubt?

      B. Even assuming arguendo appellant was reckless or negligent
         in appraising the amount of force necessary to protect
         himself, was not the evidence insufficient to convict him of
         the specific intent crimes of aggravated assault and
         possession of instrument of crime?

Appellant’s Brief at 3.

      Young first argues that the Commonwealth failed to disprove his self-

defense claim beyond a reasonable doubt. We note that “[t]he 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 the other person.” 18 Pa.C.S.A. §

505(a). “Although the defendant has no burden to prove self-defense, …

before the defense is properly in issue, ‘there must be some evidence, from

whatever source, to justify such a finding.’” Commonwealth v. Mouzon,

53 A.3d 738, 740 (Pa. 2012) (citation omitted). Once a justification defense

is properly raised, “the Commonwealth bears the burden to disprove such a



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defense beyond a reasonable doubt.” Commonwealth v. Torres, 766 A.2d

342, 345 (Pa. 2001) (citations omitted).

      The Commonwealth sustains its burden if “it establishes at least one of

the following: 1) the accused did not reasonably believe that he was in

danger of death or serious bodily injury; or 2) the accused provoked or

continued the use of force; or 3) the accused had a duty to retreat and the

retreat   was   possible   with   complete   safety.”    Commonwealth      v.

McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005) (citation omitted). “It

remains the province of the [finder of fact] to determine whether the

accused’s belief was reasonable, whether he was free of provocation, and

whether he had no duty to retreat.” Id. (citation omitted).

      The Commonwealth can negate a self-defense claim if it proves
      the defendant did not reasonably believe he was in imminent
      danger of death or great bodily injury and it was necessary to
      use deadly force to save himself from that danger.

          The requirement of reasonable belief encompasses two
          aspects, one subjective and one objective. First, the
          defendant must have acted out of an honest, bona fide
          belief that he was in imminent danger, which involves
          consideration of the defendant's subjective state of mind.
          Second, the defendant's belief that he needed to defend
          himself with deadly force, if it existed, must be reasonable
          in light of the facts as they appeared to the defendant, a
          consideration that involves an objective analysis.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citations

omitted).




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      In rejecting Young’s justification defense, the trial court determined

that there was no evidence to suggest that Young was in imminent danger of

death or serious bodily injury:

             Here, evidence presented by the Commonwealth
      established that there was no reasonable basis from which to
      conclude that the use of the razor was necessary by [Young].
      Prior to slicing the complaining witness, [Young] was not in any
      danger of death or serious bodily harm.            Although the
      complaining witness testified that he was willing to enter into
      mutual combat with [Young], he did not make any attempt to
      throw a punch prior to, or subsequent to, being sliced with the
      razor.    The complaining witness also did not possess any
      weapons at the time of the attack. Further, [Young] presented
      no evidence that he acted in self-defense, other than his own
      testimony, which was found not to be credible. As illustrated by
      the Commonwealth during trial, [Young’s] testimony was
      inconsistent with statements previously made to law
      enforcement regarding the events that preceded the attack.
      Furthermore, [Young] used the weapon while on a public street,
      away from the house. He could have, at any point after leaving
      the home, retreated from the scene to complete safety without
      harming      the    complaining   witness.      Therefore,    the
      Commonwealth met its burden of proof beyond a reasonable
      doubt that [Young] did not act in self-defense at the time of the
      attack.

Trial Court Opinion, 12/12/14 at 5.

      We agree with the trial court’s cogent analysis.        The evidence

presented was insufficient to support a finding that Young – either

subjectively or objectively – reasonably believed he was in danger of death

or serious bodily injury.    The trial court clearly concluded that Young

unreasonably and unjustifiably escalated the confrontation when he sliced

the unarmed victim with a razor blade. Based on the foregoing, we conclude

that the   Commonwealth sustained       its burden of disproving Young’s

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justification defense beyond a reasonable doubt. Accordingly, Young’s first

claim is without merit.

       Young next argues that, even assuming his self-defense claim does not

warrant relief, the evidence was still insufficient to convict him of aggravated

assault and possession of an instrument of crime. Our review of the record

reveals that this precise issue was not raised in Young’s Rule 1925(b)

statement of matters complained of on appeal.        See Statement of Errors

Complained of On Appeal, 7/18/14.2 Therefore, we are constrained to find

this issue is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in

the Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”); Commonwealth v. Melvin, 103 A.3d 1, 39

(Pa. Super. 2014).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2015

____________________________________________


2
  Young raised two issues in his Rule 1925(b) statement. The first issue
mirrored the first claim raised in Young’s appellate brief. The second issue
challenged the weight of the evidence to support his convictions. See
Statement of Errors Complained of On Appeal, 7/18/14.



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