J-A01033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: R.E.M., A MINOR                 IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


APPEAL OF: R.E.M., A MINOR
                                                         No. 3353 EDA 2014


             Appeal from the Dispositional Order October 30, 2014
                In the Court of Common Pleas of Monroe County
              Juvenile Division at No(s): CP-45-JV-0000207-2014


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 12, 2016

        R.E.M. appeals from the dispositional order entered in the Court of

Common Pleas of Monroe County after he was adjudicated delinquent of

simple assault1 in the Court of Common Pleas of Pike County.2 Upon careful

review, we affirm.

        On May 6, 2014, R.E.M., a student at East Stroudsburg High School

North, had taken his seat in the school library when a fellow student, J.M.,

sat down in the same chair.           Melissa D’Alessio, a Spanish teacher at the

school, asked J.M. to move. R.E.M. then told J.M. to “Get the ‘f’ out of my

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1
    18 Pa.C.S.A. § 2701(a)(1).
2
   While the incident at issue in this matter occurred in Pike County, the
juvenile is a resident of Monroe County. Accordingly, pursuant to Pa.R.J.C.P.
302, the Court of Common Pleas of Pike County held an adjudicatory hearing
and ruled on the offenses and transferred the matter to Monroe County for
final disposition.


*Former Justice specially assigned to the Superior Court.
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face” and shoved J.M., causing him to fly over the chair he had been sitting

on and hit his head on another nearby chair. N.T. Motion Hearing, 8/20/14,

at 6. J.M. stood up and returned to where R.E.M. was standing, after which

the two students exchanged blows.             The incident concluded when R.E.M.

again knocked J.M. to the floor with a blow to the face and another faculty

member intervened. J.M. suffered a broken nose and injuries to the back of

his head, ears, throat, and face.        Doctors had to re-break J.M.’s nose in

order to properly align it with his teeth.

      On September 3, 2014, a formal adjudication hearing was conducted

after which the Honorable Joseph F. Kameen, P.J., found sufficient evidence

to   adjudicate   R.E.M.    delinquent   of    simple   assault.   Judge   Kameen

transferred the case to Monroe County, R.E.M.’s county of residence.            A

disposition hearing was conducted on October 30, 2014, in which the court

imposed a term of probationary supervision.

      This timely appeal followed, in which R.E.M. raises the following issues

for our review:

      1.    Whether appellant, R.E.M., III is entitled to a new
      Adjudication Hearing where the court erroneously denied the
      appellant the right in defense of his charges to introduce
      character testimony from a character witness that would have
      raised a reasonable doubt that the appellant committed the
      alleged crimes?

      2.    Whether appellant, R.E.M., III is entitled to a new
      Adjudication Hearing where the evidence was insufficient to
      disprove the appellant’s self-defense case?

Brief of Appellant, at 3.



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     R.E.M. first asserts that the juvenile court erred by failing to allow him

to introduce character evidence, which R.E.M. claims would have raised a

reasonable doubt as to whether he committed the delinquent acts alleged.

Specifically, R.E.M. sought to introduce the testimony of Charles Daley,

whose relationship to R.E.M. is not detailed in the record. R.E.M.’s proffer

indicated that Daley would testifiy to R.E.M.’s “character;” the court

concluded that character was not relevant to the offense charged, i.e. a

“mutual fight,” and sustained the Commonwealth’s objection.

     As a general rule, evidence of a person’s character may not be

admitted to show that individual acted in conformity with that character on a

particular occasion.   Pa.R.E. 404(a).      However, Pennsylvania Rule of

Evidence 404(a)(1) provides an exception allowing a criminal defendant to

offer evidence of his character traits which are pertinent to the crimes

charged and allows the Commonwealth to rebut the same.                 Pa.R.E.

404(a)(1). This Court has previously explained:

     It has long been the law in Pennsylvania that an individual on
     trial for an offense against the criminal law is permitted to
     introduce evidence of his good reputation in any respect which
     has “proper relation to the subject matter” of the charge at
     issue. Such evidence has been allowed on a theory that general
     reputation reflects the character of the individual and a
     defendant in a criminal case is permitted to prove his good
     character in order to negate his participation in the offense
     charged. The rationale for the admission of character testimony
     is that an accused may not be able to produce any other
     evidence to exculpate himself from the charge he faces except
     his own oath and evidence of good character. It is clearly
     established that evidence of good character is to be regarded as
     evidence of substantive fact just as any other evidence tending


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       to establish innocence and may be considered by the jury in
       connection with all of the evidence presented in the case on the
       general issue of guilt or innocence. Evidence of good character
       is substantive and positive evidence, not a mere make weight to
       be considered in a doubtful case, and, . . . is an independent
       factor which may of itself engender reasonable doubt or produce
       a conclusion of innocence. Evidence of good character offered
       by a defendant in a criminal prosecution must be limited to his
       general reputation for the particular trait or traits of character
       involved in the commission of the crime charged. The cross-
       examination of such witnesses by the Commonwealth must be
       limited to the same traits. Such evidence must relate to a period
       at or about the time the offense was committed, and must be
       established by testimony of witnesses as to the community
       opinion of the individual in question, not through specific acts or
       mere rumor.

Commonwealth v. Johnson, 27 A.3d 244, 247-48 (Pa. Super. 2011),

quoting Commonwealth v. Luther, 463 A.2d 1073, 1077–78 (Pa. Super.

1983) (citations omitted).

       Here, R.E.M. did not make an offer of proof that Daley would testify as

to a character trait pertinent to his simple assault charge.           Rather, the

record reflects that Daley was merely going to testify generally regarding

R.E.M.’s ”character” to “cast some doubt, some reasonable doubt, on

[R.E.M.’s]    character.”3       N.T.    Adjudicatory   Hearing,   9/3/16,   at   41.

Accordingly, the juvenile court properly excluded the testimony as proffered

by R.E.M. See Pa.R.E. 404(a)(1); Johnson, supra.



____________________________________________


3
  It appears that counsel misspoke when making his offer of proof and likely
intended to say that the proffered testimony would cast doubt on whether
R.E.M. could or would have committed the acts alleged.



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      Next, R.E.M. asserts that the Commonwealth failed to demonstrate

beyond a reasonable doubt that R.E.M. did not act in self-defense and

therefore the evidence was insufficient to support an adjudication of simple

assault. We disagree.

      We begin by noting that, in reviewing a claim based upon the

sufficiency of the evidence, an appellate court must view all the evidence in

the light most favorable to the verdict winner, giving that party the benefit

of all reasonable inferences to be drawn therefrom. See Commonwealth

v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      R.E.M. was adjudicated delinquent of simple assault, which is defined,

in pertinent part, as follows:

      § 2701. Simple assault.

      (a) Offense defined. – Except as provided under section 2702
      (relating to aggravated assault), a person if guilty of assault if:

      (1) attempts to cause or intentionally, knowingly, or recklessly
      causes bodily injury to another

                                      ...

      (b) Grading. - Simple assault is a misdemeanor of the second
      degree unless committed:

      (1) in a fight or scuffle entered into my mutual consent, in which
      case it is a misdemeanor of the third degree.

18 Pa.C.S.A. § 2701(a)(1) and (b)(1).

      Self-defense is defined, in pertinent part, as follows:

      § 505. Use of force in self-protection.

      (a) Use of force justifiable for protection of the person. — The
      use of force upon or toward another person is justifiable when

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     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). The Commonwealth bears the burden to disprove such

a defense beyond a reasonable doubt.          Commonwealth v. Torres, 766

A.2d 342, 345 (Pa. 2001) (citation omitted).

     Finally, unlawful force is defined as:

     § 501. Definitions.

     “Unlawful force.”    — Force, including confinement, which is
     employed without the consent of the person against whom it is
     directed and the employment of which constitutes an offense or
     actionable tort or would constitute such offense or tort except for
     a defense (such as the absence of intent, negligence, or mental
     capacity; duress; youth; or diplomatic status) not amounting to
     a privilege to use the force. Assent constitutes consent, within
     the meaning of this section, whether or not it otherwise is legally
     effective, except assent to the infliction of death or serious
     bodily injury.

18 Pa.C.S. § 501.

     In cases involving battery, force may be met with force so long as it is

only enough force to repel the attack. Commonwealth v. Witherspoon,

730 A.2d 496, 499 (Pa. Super. 1999).

     Here, the testimony of Melissa D’Alessio and the video evidence

demonstrated that J.M. did not exert unlawful force such as would warrant

the use of force by R.E.M. in self-defense. While R.E.M. argues that J.M.’s

act of sitting next to him on the chair provoked the fight, the fact remains

that J.M. did not initiate the use of force against R.E.M.   Indeed, R.E.M.’s




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J-A01033-16



own testimony indicated that he shoved J.M. first.4 Finally, R.E.M.’s reliance

upon Torres, supra, is misplaced because, in Torres, the defendant was

struck twice by the victim before knocking him to the ground.      Nothing in

the record indicates that R.E.M. was struck first or felt immediately

threatened that J.M. would strike first.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2016




____________________________________________


4
    Under cross-examination by the Commonweath, R.E.M. testified as follows:

        Q: And you’ll agree with me that the video shows that you
        shoved [J.M.] first?

        A: Yes.

N.T. Adjudicatory Hearing, 9/3/14, at 50.




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