J-A17015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FRANK TEPPER

                            Appellant                No. 1579 EDA 2012


              Appeal from the Judgment of Sentence April 4, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001877-2010


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED JULY 29, 2014

       Appellant, Frank Tepper, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for first-degree murder, possessing an instrument of crime
                                                               1
                                                                   We affirm.

       The relevant facts and procedural history of this appeal are as follows.

On November 21, 2009, Appellant was hosting a family function at his house

in Port Richmond. That same day, the victim, William Panas, and some of

his friends were socializing outside a nearby building. Around 10:30 p.m., a



____________________________________________


1
  18 Pa.C.S.A. § 2502(a), 18 Pa.C.S.A. § 907(a), 18 Pa.C.S.A. § 2705,
respectively.
J-A17015-14


                                   ion.     Appellant, an off-duty Philadelphia

police officer, went outside with a firearm and attempted to disperse the



                                                                     un at the




evidence showed



when Appellant fired his weapon.

      On February 23, 2012, following a five-day trial, a jury found Appellant

guilty of first-degree murder, PIC, and REAP.      On April 4, 2012, the court

sentenced Appellant to life imprisonment for the first-degree murder



for each of the lesser convictions.    Appellant timely filed a post-sentence

motion on April 9, 2012.     On May 7, 2012, the court denied the post-

sentence motion.     On May 16, 2012, Appellant timely filed a notice of

appeal.   The court did not order Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); and Appellant

filed none.

      Appellant raises the following issues for our review:

          THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW


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                               OF FIRST DEGREE MURDER,
        POSSESSING    AN   INSTRUMENT  OF   CRIME AND
        RECKLESSLY ENDANGERING ANOTHER PERSON WHERE
        THE EVIDENCE INDICAT                         S
        ACTING IN SELF DEFENSE WHEN HE DISCHARGED THE
        FIREARM A SINGLE TIME.

        THE [VERDICT] WAS AGAINST THE WEIGHT OF THE
                               APPELLANT OF FIRST DEGREE
        MURDER, POSSESSING AN INSTRUMENT OF CRIME AND
        RECKLESSLY ENDANGERING ANOTHER PERSON WHERE
        THE EVIDENCE INDICAT                           S
        ACTING IN SELF DEFENSE WHEN HE DISCHARGED THE
        FIREARM A SINGLE TIME.



     The following principles of review apply to challenges to the sufficiency

of evidence:

        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
                                                         -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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).     When reviewing a claim that the evidence was insufficient to

support the verdict, all evidence and reasonable inferences therefrom are

viewed in the light most favorable to the Commonwealth as the verdict

winner. Commonwealth v. Simmons, 541 Pa. 211, 223, 662 A.2d 621,

627 (1995).

      Our standard of review for a challenge to the weight of the evidence is

as follows:

           The weight of the evidence is exclusively for the finder of
           fact who is free to believe all, part, or none of the evidence
           and to determine the credibility of the witnesses. An
           appellate court cannot substitute its judgment for that of
           the finder of fact. Thus, we may only reverse the lower


           court has ruled on the weight claim below, an appellate

           whether the verdict is against the weight of the evidence.
           Rather, appellate review is limited to whether the trial
           court palpably abused its discretion in ruling on the weight
           claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted).

      The Pennsylvania Crimes Code governs self-defense in relevant part as

follows:

           § 505. Use of force in self-protection


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          (a) Use of force justifiable for protection of the
                      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.

          (b) Limitations on justifying necessity for use of
          force.

                                       *       *   *

              (2) The use of deadly force is not justifiable under
              this section unless the actor believes that such force is
              necessary to protect himself against death, serious
              bodily injury, kidnapping or sexual intercourse
              compelled by force or threat; nor is it justifiable if:

                 (i) the actor, with the intent of causing death or
                 serious bodily injury, provoked the use of force
                 against himself in the same encounter; or

                 (ii) the actor knows that he can avoid the necessity
                 of using such force with complete safety by


                                       *       *   *

18 Pa.C.S.A. § 505(a), (b).2           The justified use of deadly force requires

several elements:

          [It] must be shown that a) the actor was free from fault in
          provoking or continuing the difficulty which resulted in the
          use of deadly force; b) the actor must have reasonably
          believed that he was in imminent danger of death or
          serious bodily injury, and that there was a necessity to use
____________________________________________


2
    Section   505    was     amended,      effective   August   29,   2011,   to   add

the date of the incident (November 21, 2009).         Therefore, the 2011
amendment to Section 505 does not apply to this case.



                                           -5-
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        such force in order to save himself or others therefrom;
        and c) the actor did not violate any duty to retreat or to
        avoid the danger.

Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172, 1174 (1995).

                                                                         -defense

claim. Commonwealth v. Torres, 564 Pa. 219, 224, 766 A.2d 342, 345

(2001). The Supreme Court explained the evidentiary burdens as follows:

        While there is no burden on a defendant to prove the [self-
        defense] claim, before that defense is properly at issue at
        trial, there must be some evidence, from whatever source
        to justify a finding of self-defense. If there is any evidence
        that will support the claim, then the issue is properly
        before the fact finder.

Id. (internal citations omitted). See also Commonwealth v. Bullock, 948

A.2d 818, 824 (Pa.Super. 2008) (stating same standard).

                                               -defense under Section 505 of

the Pennsylvania Crimes Code, the burden is on the Commonwealth to prove

beyond a reasonable doubt tha                                                   -

            Commonwealth v. McClendon, 874 A.2d 1223, 1229-30

(Pa.Super. 2005).


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


Id. at 1230 (quoting Commonwealth v. Yanoff, 690 A.2d 260, 264

(Pa.Super. 1997), appeal denied, 548 Pa. 681, 699 A.2d 735 (1997)). The


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Commonwealth must establish one of these three elements beyond a

reasonable doubt to insulate its case from a defense challenge to the

sufficiency   of   the   evidence   where   self-protection   is   at   issue.

Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa.Super. 2000), appeal

denied



was free of provocat

McClendon, supra at 1230.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Shelley

                                          ms merit no relief. The trial court

opinion fully discusses and properly disposes of the issues presented. (See

Trial Court Opinion, filed June 24, 2013, at 3-6) (finding: (1) the

Commonwealth presented four witnesses and forensic evidence at trial;

three of four witnesses testified Appellant had also pointed his gun at them




when Appellant fired weapon; thus, evidence was sufficient to allow jury to


                                    -7-
J-A17015-14


conclude shooting was intentional, unjustified, and with malice; (2)

Appellant presented four witnesses who testified to version of facts favorable

                                   esses claimed victim was aggressor; jury




verdict was not against weight of evidence). Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2014




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