J-S75011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY BRASWELL

                            Appellant                No. 2928 EDA 2013


            Appeal from the Judgment of Sentence January 8, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006710-2011


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 23, 2015

        Appellant, Anthony Braswell, appeals nunc pro tunc from the January

8, 2013 aggregate judgment of sentence of 25 to 50 years’ incarceration,

imposed following his conviction at a bench trial for aggravated assault,

possession of an instrument of crime, simple assault and recklessly

endangering another person, in connection with the stabbing of the

complainant/victim.1 After careful review, we affirm based on the thorough

and well-supported opinion of the Honorable Daniel J. Anders.

        The trial court, in its June 10, 2014 opinion, has aptly summarized the

factual history of this case, which we need not repeat in full here. In brief,

the procedural history of this case as determined from the certified record

transpired as follows.        Appellant was charged with the aforementioned
____________________________________________
1
    18 Pa.C.S.A. §§ 2702(a), 907(a), 2701(a), and 2705, respectively.
J-S75011-14



crimes on May 25, 2011. On November 19, 2012, Appellant waived his right

to trial by jury and proceeded with a bench trial, at the conclusion of which

the trial court found him guilty of all counts. On January 8, 2013, the trial

court sentenced Appellant to the mandatory 25 to 50 years’ imprisonment

for “third-strike” offenders prescribed by 42 Pa.C.S.A. § 9714(a)(2).        On

January 18, 2013, Appellant filed post-sentence motions, raising sufficiency

of the evidence and weight of the evidence challenges.          The trial court

denied those motions on March 6, 2013. No direct appeal was filed.

       On August 8, 2013, Appellant filed a petition pursuant to the Post

Conviction Relief Act (PCRA), seeking, in part, restoration of his direct appeal

rights.   The PCRA court granted Appellant relief on September 19, 2013,

permitting Appellant to file a nunc pro tunc direct appeal within 30 days.

Appellant filed his notice of appeal on October 15, 2013.2

       On appeal, Appellant raises the following questions for our review.

              I.     Should Appellant’s sentence be vacated
                     because the evidence was insufficient to
                     support a verdict of guilty under 18 Pa.C.S.A.
                     § 2702(a)(1) because:

                     a.     The Commonwealth failed to prove that
                            Appellant intended to cause serious
                            bodily injury, and

                     b.     The Commonwealth failed to prove that
                            Appellant caused serious bodily injury
                            intentionally, knowingly or recklessly
____________________________________________
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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J-S75011-14


                              under     circumstances   manifesting
                              extreme indifference to the value of
                              human life?

            II.      Should Appellant’s sentence be vacated
                     because the trial court abused its discretion by
                     not ruling that the verdict of guilty on the
                     charge of Aggravated Assault as a Felony of
                     the First Degree, 18 Pa.C.S.A. § 2702(a)(1)
                     was against the weight of the evidence?

            III.     Was the evidence presented at trial sufficient
                     to justify a finding of self-defense under 18
                     Pa.C.S.A. § 505?

            IV.      Should Appellant’s sentence be vacated
                     because the Commonwealth failed to meet its
                     burden, under 18 Pa.C.S.A. § 505, of
                     disproving self-defense?

Appellant’s Brief at 5-6.

      In   his    first    issue,   Appellant   challenges   the   sufficiency   of   the

Commonwealth’s evidence relative to the aggravated assault charge. Id. at

12. “A claim impugning the sufficiency of the evidence presents us with a

question of law.”         Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.

Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

Our standard and scope of review are well settled.

            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

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J-S75011-14


           possibility of innocence. Any doubts regarding a
           defendant’s guilt may be resolved by the fact-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.

Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)

(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).

           However, the inferences must flow from facts and
           circumstances proven in the record, and must be of
           such volume and quality as to overcome the
           presumption of innocence and satisfy the jury of an
           accused’s guilt beyond a reasonable doubt. The trier
           of fact cannot base a conviction on conjecture and
           speculation and a verdict which is premised on
           suspicion will fail even under the limited scrutiny of
           appellate review.

Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation

omitted), appeal denied, 101 A.3d 102 (Pa. 2014).

     Specifically, Appellant maintains the Commonwealth’s evidence failed

to prove the requisite mens rea to support a conviction for aggravated

assault under 18 Pa.C.S.A. § 2702(a)(1). Appellant’s Brief at 12. “In this

case, there is very little evidence by which the fact finder could infer

Appellant’s intent beyond the injury itself. Neither [of the Commonwealth’s



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J-S75011-14


eyewitnesses]      described      Appellant’s    actions   in   sufficient   detail   to

conclusively prove that he intended to cause the type of serious injury that

[the victim] sustained.”        Id. at 17.      He further asserts that alternative

explanations of his intent can be inferred from the evidence, including

accident or defense. Id. at 17-18.

       The trial court, in its June 10, 2014 opinion, carefully recounts the

evidence supporting its verdict, concluding the evidence was sufficient to

prove Appellant caused serious bodily harm to the victim and did so with

specific intent.    Trial Court Opinion, 6/10/14, at 4.         Based on our careful

review of the record, we agree. Specifically, we agree with the trial court

that the evidence of Appellant initiating an aggressive confrontation with the

victim, his use of a previously hidden deadly weapon on a vital part of the

victim’s body, his consequent flight, and his attendant and subsequent

statements all support an inference beyond a reasonable doubt that

Appellant acted with the requisite specific intent.3

       Appellant next claims the verdict of guilty for aggravated assault was

against the weight of the evidence. Appellant’s Brief at 22.             An argument

that the jury’s verdict was against the weight of the evidence concedes the

evidence was sufficient to sustain the convictions.              Commonwealth v.
____________________________________________
3
  Because we conclude the trial court correctly determined the evidence
supports its finding of specific intent to cause serious bodily injury, we do
not need to address Appellant’s companion claim that the evidence was
insufficient to show he acted intentionally, knowingly or recklessly
manifesting extreme indifference to human life raised in his issue I.b.


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J-S75011-14


Lyons,     79     A.3d   1053,    1067      (Pa.   2013),   cert.    denied,   Lyons   v.

Pennsylvania, 134 S. Ct. 1792 (2014). “A claim alleging the verdict was

against the weight of the evidence is addressed to the discretion of the trial

court.”    Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014)

(citation omitted).       “[A]n appellate court’s role is not to consider the

underlying question of 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. Gibbs, 981                    A.2d 274, 282          (Pa. Super. 2009)

(quotations and citations omitted), appeal denied, 3 A.3d 670 (Pa. 2010).

                In reviewing the entire record to determine the
                propriety of a new trial, an appellate court must first
                determine whether the trial judge’s reasons and
                factual basis can be supported. Unless there are
                facts and inferences of record that disclose a
                palpable abuse of discretion, the trial judge’s reasons
                should prevail. … Where the record adequately
                supports the trial court, the trial court has acted
                within the limits of its judicial discretion.

Commonwealth v. Clay, 64 A.3d 1049, 1056-1057 (Pa. 2013), quoting

Commonwealth v. Brown, 648 A.2d 1177, 1190 (Pa. 1994).

                The factfinder is free to believe all, part, or none of
                the evidence and to determine the credibility of the
                witnesses. The trial court will award a new trial only
                when the jury’s verdict is so contrary to the evidence
                as to shock one’s sense of justice. In determining
                whether this standard has been met, appellate
                review is limited to whether the trial judge’s
                discretion was properly exercised, and relief will only
                be granted where the facts and inferences of record
                disclose a palpable abuse of discretion. Thus, the

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J-S75011-14


              trial court’s denial of a motion for a new trial based
              on a weight of the evidence claim is the least
              assailable of its rulings.

Commonwealth v. Weathers, 95 A.3d 908, 910-911 (Pa. Super. 2014),

quoting Commonwealth v. Diggs, 949 A.2d 873, 879–80 (Pa. 2008).

       Specifically, Appellant argues, “[c]onsidering the totality of the

evidence, [the victim’s] claim that she did not swing at Appellant just before

she sustained her injuries is undermined by her prior testimony wherein she

admitted that she did.” Appellant’s Brief at 23. Appellant asserts that fact

refutes the claim he acted with specific intent or reckless indifference and

supports his claim of self-defense. Id.

       In its June 10, 2014 opinion, the trial court again references its

recitation of the testimony in light of its credibility determinations to

conclude the verdict “does not shock one’s sense of justice.”          Trial Court

Opinion, 6/10/14, at 5. Upon review of the record, we discern no abuse of

discretion by the trial court in denying Appellant’s motion for new trial based

on the insufficient weight of the evidence. See Weathers, supra.

       In his final issue,4 Appellant claims the evidence presented by the

Commonwealth was insufficient to disprove Appellant’s claim of self-defense

beyond a reasonable doubt.           We have noted our standard of review for

____________________________________________
4
  The trial court determined that Appellant had sufficiently raised the issue of
self-defense justification to shift the burden to the Commonwealth to
disprove his claim. Trial Court Opinion, 6/10/14, at 5-6. We therefore do
not need to address Appellants issue III herein.


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J-S75011-14


claims of insufficient evidence above.         In addition, relative to self-defense

claims we note the following.

              [A] claim of self-defense (or justification, to use the
              term employed in the Crimes Code) requires
              evidence establishing three elements: (a) [that the
              defendant] reasonably believed that he was in
              imminent danger of death or serious bodily injury
              and that it was necessary to use deadly force against
              the victim to prevent such harm; (b) that the
              defendant was free from fault in provoking the
              difficulty which culminated in the slaying; and (c)
              that the [defendant] did not violate any duty to
              retreat. 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. Once the question
              is properly raised, the burden is upon the
              Commonwealth to prove beyond a reasonable doubt
              that the defendant was not acting in self-defense.
              The Commonwealth sustains that burden of negation
              if it proves any of the following: that the slayer was
              not free from fault in provoking or continuing the
              difficulty which resulted in the slaying; that the
              slayer did not reasonably believe that [he] was in
              imminent danger of death or great bodily harm, and
              that it was necessary to kill in order to save [him]self
              therefrom; or that the slayer violated a duty to
              retreat or avoid the danger.

Commonwealth v. Mouzon, 53 A.3d 738, 740-741 (Pa. 2012) (internal

quotation marks, citations and footnote omitted), see also 18 Pa.C.S.A.

505.5


____________________________________________
5
 The version of Section 505 applicable to this case provides in pertinent part
as follows.
              § 505. Use of force in self-protection

(Footnote Continued Next Page)

                                           -8-
J-S75011-14



                       _______________________
(Footnote Continued)
             (a) Use of force justifiable for protection of the
             person.—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:

                                                 …

                             (ii) the actor knows that he can avoid the
                             necessity of using such force with
                             complete safety by retreating or by
                             surrendering possession of a thing to a
                             person asserting a claim of right thereto
                             or by complying with a demand that he
                             abstain from any action which he has no
                             duty to take…:

                                                 …

                       (3) Except as required by paragraphs (1) and
                       (2) of this subsection, a person employing
                       protective force may estimate the necessity
                       thereof under the circumstances as he believes
                       them to be when the force is used, without
                       retreating, surrendering possession, doing any
                       other act which he has no legal duty to do or
                       abstaining from any lawful action.

                                                 …
(Footnote Continued Next Page)

                                            -9-
J-S75011-14


      Instantly, Appellant, in support of his argument, selectively recites

facts he deems support an inference he acted in self-defense, including the

number of people he confronted, and the fact some of them stood up.

Appellant’s Brief at 25. Further, Appellant, in a conclusory manner, asserts

he had no duty to retreat, because he reasonably believed he could not do

so without being harmed. Id. at 26.

      Again, in its June 10, 2014 opinion, the trial court carefully recounts

the evidence supporting its conclusion that the Commonwealth met its

burden in disproving Appellant’s claim of self-defense. Trial Court Opinion,

6/10/14, at 7-9.         After close review of the certified record, we agree.

Specifically, we agree with the trial court that the evidence shows Appellant

acted with specific intent to harm, that even if Appellant was reacting to

perceived aggression his reaction was excessive and use of deadly force

unwarranted, and that even if Appellant was reacting to perceived

aggression Appellant had a duty to retreat. See Id.

      In sum, after careful review, we conclude that the trial court’s June 10,

2014 Rule 1925(a) opinion fully sets forth Appellant’s claims, identifies the

proper standard of review, discusses the relevant law and explains the basis

                       _______________________
(Footnote Continued)

18 Pa.C.S.A. § 505. We note the subject incident in this case predated the
amendments, effective August 29, 2011, incorporating Pennsylvania’s “stand
your ground” law provisions. As such, those amendments do not apply to
this case. See Commonwealth v. Smith, 97 A.3d 782, 787 n.2 (Pa.
Super. 2014).


                                           - 10 -
J-S75011-14


for its conclusion that said claims lack merit.      Instantly, we carefully

reviewed the entire record and Appellant’s arguments and we conclude that

the thorough and well-reasoned opinion of Judge Daniel J. Anders is in

concert with our own views as addressed above. We conclude the trial court

did not abuse its discretion or commit an error of law when it denied

Appellant’s post-trial motion for arrest of judgment or for new trial based on

the foregoing sufficiency and weight of evidence claims.     Accordingly, we

adopt the opinion by the Honorable Daniel J. Anders as our own for purposes

of appellate review and affirm the January 8, 2013 judgment of sentence.

See Id.

     Judgment of sentence affirmed

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015



     .




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                                                                                        FiLED
              IN THE COURT OF COMMON PLEAS OF PIDLADELPHIA COUNTVUN 1 0 2014
                      FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Criminal Appeals Unit
                              TRIAL DNISION - CRlMlNAL       First Judicial District of PA
  COMMONWEALTH OF PENNSYLVANIA                                 CP-5l-CR-0006710~2011


  VS.                                                          2928 EDA 2013

  ANTHONY BRASWELL

                                              OP1NION

          Following a waiver trial, Defendant Anthony Braswell was convicted of aggravated

  assault, possession of an instrument of crime, simple assault, and recklessly endangering another

 person. The trial court sentenced Defendant to a mandatory sentence of25 to 50 years of

                                . of probation, Defendant filed a timely appeal in which he
 incarceration followed by 7 years                                                       .
 argues: (1) the evidence was insufficient to support the aggravated assault conviction, (2) the

 aggravated assault conviction was against the weight of the evidence, (3) the evidence was

 sufficient to justifY a finding of self-defense, and (4) the Commonwealth failed to disprove self-

 defense. For the reasons stated below, the Superior Court should affinn the judgment of

 sentence.

FACTUAL BACKGROUND
        On the afternoon of May 24, 2011, Ramieka Hart was walking down the 1500 Block of

West Pacific Street in Philadelphia. As Hart crossed West Pacific Street, she noticed a ten-dollar

bill in the middle of the street. Hart picked up the money and walked with her daughter to

Gennantown Avenue. Hart and her daughter shopped for approximately two hours and returned

to 1500 West Pacific Street. Hart arrived at a friend's home and set ber bags down to try on a

pair of shoes. N.T. 11119/2012 at 10-37.

        Defendant Anthony BraswelI approached Hart and the other individuals, including Jackie

Evans, Aaron, Ebony, Bud, and Knita, outside of 1500 West Pacific Street. Defendant asked for
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   his money back. Hart replied that she did not have any money for him. Hart handed her purse to

   her daughter and instructed her to go inside the house. Defendant repeated his request for Hart to

   give the money back several times and then stepped even closer toward Hart. Defendant was

   now face-to-face with Hart. Hart and the others all stood up because Defendant "passed the

   comfort zone for everybody." Defendant then stabbed Hart in the abdomen with a knife.ld.

          Defendant immediately tried to flee the scene after he stabbed Hart. Other individuals

  nearby, including Aaron, grabbed Defendant as he started to run off and tackled him. to the

  ground. As they tussled on the groWld, Defendant also tried to stab Aaron. Eventually Aaron let

  go of Defendant to avoid being injured by Defendant. Defendant then ran away before police

  arrived.ld.

          The first responders on scene transported Hart by ambulance to Temple Hospital. Hart

 remained there for three or four days obtaining trea~ent. Hart endured emergency surgery and

 voluntary explomtory surgery to examine the extent ~f any internal injuries, which required 36

 staples and left a large scar running from her upper-left abdomen down to her pelvic region. Hart

 can no longer lift objects over 50 pounds, and she is physically unable to shop or wash clothes on

 her own. Id. at 17-20.

        Police anived at the scene shortly after the ambulance departed with Hart. The blood was

 already cleaned from the street. After several phone conversations with his girlfriend, who was at

the scene in the presence of police officers) Defendant returned to the scene and turned himself

in to police. ld. at 55-66.

        The Commonwealth introduced recorded phone calls from Defendant to rus girlfriend

while in custody. These tapes further corroborated the evidence on several points: (1) the money

at issue, (2) that Defendant was angry and upset just before the stabbing because he realized he

would not be getting his money back, (3) how the Defendant felt "wronged," (4) awareness of
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   the knife used and attempts to clean and hide the knife, and (5) scheming to make up an

   alternative story.

   DISCUSSION

           1.     There Is Sufficient Evidence To Support The Aggravated Assault Conviction

          Defendant asserts that the evidence was insufficient to support the aggravated assault

  conviction. In reviewing the sufficiency of the evidence, an appellate court must detennine

  whether the evidence at trial was sufficient to establish all elements ofllie crime beyond a

  reasonable doubt. Commonwealth v. Burton, 2 AJd 598 (pa. Super. Ct. 2010). In doing so, the

  appellate court views all of the evidence and reasonable inferences therefrom in the light most

  favorable to the Commonwealth
                    .           as verdict winner. ld. A coqviction may be.sustained wholly on

  circumstantial evidence, and the trier offact~wbile passing on the credibility of the witnesses

 and the weight of the evidence-is free to believe all, part, or none of the evidence. ld.

         A person is guilty of aggravated assault in the first degree ifhe 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. 18 Pa.C.S. §

 2702(a)(l). "Serious bodily injury" is bodily injury that creates a substantial risk of death or

 which causes serious, pennanent disfigurement, or protracted loss or impairment of function of

any bodily member or organ. 18 Pa.C.S. § 2301. A person acts intentionally when it is his

conscious object to engage in conduct of that nature or to cause such a result. Commonwealth v.

Martuscelli, 54 A.3d 940, 948 (pa. Super. Ct. 2012).

        If the victim does not sustain serious bodily injury, the Commonwealth must prove that

the defendant acted with the specific intent to cause serious bodily injury. The Commonwealth

may prove intent to cause serious bodily injury by circumstantial evidence. Commonwealth v.

Lewis, 911 A.2d 558, 563 (pa. Super. Ct. 2006) (finding that a victim with multiple swollen areas
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   on her face and neck, and multiple cuts and lacerations on her face and inside of her mouth

   sufficient evidence of serious bodily injury or intent to inflict serious bodily injury);

   Commonwealth v. Gray, 867 A.2d 560 (pa. Super. Ct. 2005) (finding that a victim with multiple

  stab and puncture wounds to ann, forehead, and scalp provided sufficient evidence for a fact-

  finder to infer an attempt to cause serious bodily injury).

          Here, there is sufficient evidence to establish beyond a reasonable doubt that Defendant

  caused serious bodily injury to Hart. Hart suffered protracted loss or impainnent of function, in

  that she is no longer able to lift heavy objects and cannot shop or wash clothes. She also has a

  large permanent scar from her chest down to her abdomen.

         There is also sufficient evidence to establish beyond a reasonable doubt that Defendant

 acted with the specific intent to cause serious bodily injury. Defendant was observed in broad

 daylight stabbing Hart in her chest, which is a vital part of her body. Defendant's statements to

 Hart and her godson about the money indicated his state of mind and his motive. Defendant

 produced the knife from his person, further indicating his intent and premeditated purpose when

 approaching Hart. Other circumstantial evidence of his mindset included: (1) Defendant

 approached the group in an aggressive manner, (2) Defendant then approached Hart individually,

 (3) Defendant then stepped closer into Hart's face, which was past her "comfort zone," (4)

Defendant escalated the situation with repeated questions that were unprovoked, (5) Defendant

initially attempted to flee, and ultimately successfully fled the scene, (6) Defendant attempted to

stab another individual when tackled to the ground, and (7) the recorded phone calls further

corroborated the evidence of Defendant's state ofnrind, and provided insight into his

consciousness of guilt.

        Therefore, the evidence was sufficient to support Defendant's aggravated assault

conviction as a felony of the first degree.
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          2. The Verdict Was Not Against The Weight Of The Evidence

          Defendant asserts that the verdict was against the weight of the evidence. When

  evaluating the weight of the evidence, the standard of review 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 foriliat of the finder of fact. Thus, [the
                Superior Court] may only reverse the lower court's verdict if it is
                so contrary to the evidence as to shock one's sense of justice.
                Moreover, where the trial court has ruled on the weight claim
                below, an appellate court's role is not to consider the underlying
                question of 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, 832 A.2d 403,408 (pa. Super. Ct. 2003).           .

         The fact-finder's credibility determinations based on the evidence presented and the

 demeanor of the witnesses at trial should stand, particularly when there i.s corroboration of Hart's

 testimony. In light ofllie overwhelming evidence discussed above, the verdict is not contrary to

 the evidence and does not shock one's sense ofjustice.

        3. Although The Evidence Was Sufficient To Raise The Issue Of Self-Defense, The
           Commonwealth Met Its Burden Of Disproving Self-Defense Beyond A Reasonable Doubt

        Defendant asserts that the evidence was sufficient to justify a finding of self-defense.

Defendant also claims that the Commonwealth failed to meet its burden of disproving self-

defense beyond a reasonable doubt.

           a. Defendant Properly Raised The Issue Of Self-Defense

       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) (citing Commonwealth v.

Black, 376 A.2d 627,630 (pa. 1977»). Once the question is properly raised, "the burden is upon

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   the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-

  defense." Id.

          At trial, defense counsel cross-examined Hart on a prior statement from her preliminary

  hearing testimony. N.T. 11119/2012 at 25. Hart denied her previous statement that she Hstood up

  and swung" at defendant. [d. at 26, This evidence-that Hart "swung" at Defendant-is

  sufficient to raise a colorable claim of selfwdefense that required the Commonwealth to disprove

  the claim of self-defense beyond a reasonable doubt. The trial court instructed itself on self-

 defense before issuing the verdict. N.T. 11/1912012 at 74-75.

             b. The Commonwealth Disproved Self-Defense Beyond A Reasonable Doubt

         The use of force against a person is justified when the actor .b eli eves that such force is

 immediately necessary for the purpose of protecting bimselfagainst the use of unlawful force by

 the other person. See 18 Pa.C.S. § 505 (a). When a defendant raises the issue of self-defense, the

 Commonwealth bears the burden to disprove such a defense beyond a reasonable doubt.

 Commonwealth v. Bullock, 948 A.2d 818, 824 (pa. Super. Ct. 2008).

        In order for the Commonwealth to disprove self-defense, one ofllie following elements

must exist: (1) the defendant used more force than    was necessary to save himself from death,
bodily injury, or the commission of a fe10ny; (2) the defendant provoked the use of force; or (3)

the defendant had a duty to retreat, which was possible to accomplish with complete safety. See

Commonwealth v. Bums, 765 A.2d 1144, 1148-1149 (pa. Super. Ct. 2000). "Although the

Commonwealth is required to disprove a claim of self-defense arising from any source beyond a

reasonable doubt, a jury is not required to believe the testimony of the defendant who raises the

claim." Bullock, 948 A.2d at 824.




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                      i. The Commonwealth Proved Beyond A Reasonable Doubt That
                          Defendant Used Excessive And Unreasonable Force

          When confronted with non~dead1y force, a defendant's responding use of force must not

  be excessive. Commonwealtlt v. Buterbaugh> 2014 PA Super 102, _          A.3d ~ (Fa. Super. Ct.

  2014) (citing Commonwealth v. Cutts, 421 A.2d 1172 (Fa. Super. Ct. 1980). There is a right to

  use force to repel unlawful non~deadly force, but the force that is used must be reasonable under

  the circumstances. Commonwealth v. Witherspoon, 730 A,2d 496 (pa. Super. Ct. 1999). If the

  force used purportedly in self-defense i~ excessive, the defendant forfeits bis claim of self-

  defense. 18 Pa.C.S. § 505; see also Commonwealth v. Witherspoon, 730 A.2d 496 (pa. Super. Ct.

  1999) (explaining the difference in the rule used for cases involving deadly force and the rule

 used for cases not involving deadly force). For example, a defendant who uses a knife to defend

 against fists, under some circumstances, has used excessive force and cannot claim self-defense.

 See Commonwealth v. Jones, 332 A,2d 464 (pa. 1974) (holding that use ofa pocket knife against

 kicking and pushing assailants is excessive force), Commonwealth v. Cutts, 421 A.2d 1172 (Fa.

 Super. Ct. 1980) (holding that use of "shiny instrument" capable of slashing is excessive force

 applied against person who poked defendant with a sharp stick).

        Viewing aU of the evidence and reasonable inferences therefrom in the light most

favorable to the Commonwealth as verdict winner, Defendant approached Hart and aggressively

demanded money from her. The corroborated testimony and previous statements from Hart and

Evans and the other evidence of record show that Defendant responded to the situation with

deadly force with a knife. There were no injuries to Defendant; there was no evidence Hart or

anyone else had a lmife or any weapon. Defendant's prison calls further corroborated Hart's

testimony and Defendant's intent to cause serious bodily injury. Thus, the Commonwealth




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   disproved Defendant's alleged self-defense claim because the evidence proves Defendant used

   excessive and unreasonable force.

           Even assuming, for the sake of argument, that Defendant was punched by Hart before he

  stabbed her with a knife, Defendant's stabbing oEHart would be a classic example of meeting

  non~deadly force   by Hart with deadly force by Defendant. Tbis hypothetical scenario fails ~ll1y

  selfwdefense justification because stabbing an unanned woman is inherently excessive and

  unreasonable. See Witherspoon, Jones, and Cutts, supra at 7. Ajortiori, meeting the minimal

  force of a rather tame argument between Hart and Defendant with deadly force is unequivocally

  excessive and unreasonable. Therefore, the Commonwealth proved beyond a reasonable doubt

 that Defendant's use of.force was excessive and unreasonable, and Defendant's daim must fail.

                     ii. The Commonwealth Proved Beyond A Reasonable Doubt
                         That Defendant Had A DUty to Retreat

        It is well-established under Pennsylvania law that "the use of deadly force cannot be used

 where there is an avenue ofretreai; lithe defendant knows the avenue of retreat is available."

 Commonwealth v. Ventura, 975 A.2d 1128, 1143 (pa. Super. Ct. 2009). "The law does not

 require an accused to elect an avenue of retreat where a reasonably prudent person would

 conclude that such a decision would increase his or her eXposure to the threatened harm." Id. at

1143-44.

        Here, the evidence supports the proposition that retreat was possible and would not have

exposed Defendant to any harm. Defendant was presented with numerous opportunities to

retreat. Instead, Defendant repeatedly decided to escalate the situation. Defendant chose the

location for the altercation. Defendant provoked the initial confrontation by aggressively starting

an argument with Hart. Defendant brought the knife, which was initially concealed somewhere

on his person> with him to 1500 West Pacific Street. Defendant chose to escalate the argument by

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    stepping closer in an intimidating and threatening manner. Defendant decided to stab Hart and

    attempt to stab Aaron as Defendant fled. Finally, Defendant successfully fled the area after he

    completed the crime, which reveals Defendant's clear avenue ofretreat throughout the

    encounter.

           Moreover, there is no evidence that Defendant was blocked by anyone from safely

retreating. Or that, in doing so, that Defendant would have increased his exposure to harm. To

the contrary, Defendant was able to easily escape after he stabbed Hart, which is evidence that he

knew that an avenue of safe retreat was available. What stopped Defendant from retreating-and

caused him to stab Hart-was Defendant's ego and pride.

          As a result, the Commonwealth proved beyond a reasonable doubt that Defendant failed

to utilize an avenue of safe retreat as required. Therefore, Defendanfs self-defense claim fails.


CONCLUSION

                                g, the judgment of sentence should be affirmed.




D




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