J-S63038-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                 Appellee                      :
                                               :
                     v.                        :
                                               :
    LEWIS BROOKS,                              :
                                               :
                 Appellant                     :   No. 2949 EDA 2018


        Appeal from the Judgement of Sentence Entered June 17, 2014
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0014184-2012

BEFORE:      GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JANUARY 08, 2020

        Lewis Brooks (Appellant) appeals nunc pro tunc from the judgment of

sentence of 6 to 12 years of incarceration, imposed after he was found guilty

in a bench trial of aggravated assault, simple assault, possessing an

instrument of crime (PIC), and recklessly endangering another person

(REAP). We affirm.

        We provide the following background.              This case involves the

relationship between Appellant and Keith Johnson. Appellant is married to

Tracey Mitchell, whom Johnson claimed he used to date.1 This is the cause




____________________________________________


1   Mitchell denied ever having dated Johnson. N.T., 3/10/2014, at 75.


*   Retired Senior Judge assigned to the Superior Court.
J-S63038-19


of friction between the two men.2 According to Johnson, on September 5,

2012, he was driving in his white Ford F250 pickup truck when he saw

Appellant driving a red Chevrolet Blazer.3       Johnson claimed that Appellant

signaled for Johnson to follow Appellant.        Johnson complied and followed

Appellant for about 10 or 15 minutes, believing that the two were going to

engage in a fist fight. However, while following Appellant, Johnson’s “blood

cooled,” and he decided he did not want to fight. N.T., 3/10/2014, at 49.

According to Johnson, he then made a turn and went to the home of Mrs.

Brown, a client for whom Johnson was going to build a retaining wall.

Johnson spoke to Mrs. Brown, then got back into his truck. Johnson realized

he forgot to have Mrs. Brown sign the contract for the retaining wall; so he

exited his truck.      That is when he noticed Appellant in his truck headed

straight for him, and Appellant then hit Johnson with his car.         Johnson

suffered numerous injuries, including a broken leg and a head injury.

       Appellant was arrested the same day and was charged with attempted

murder, aggravated assault, simple assault, REAP, and PIC. A non-jury trial

was held on March 10, 2014, where Johnson testified as indicated supra.
____________________________________________
2 For example, in July 2012, Johnson saw Appellant standing outside a body
shop. According to Johnson, Appellant chased Johnson with a crow bar. It
was Johnson’s position that Appellant chased Johnson with a gun. On
another occasion, Appellant allegedly tried to hit Johnson with a car, and
Johnson allegedly threw a brick at Appellant. The two also had verbal
altercations.

3 It was later determined this vehicle was a maroon GMC Jimmy. N.T.,
3/10/2014, at 70.


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Appellant also testified at trial.   Appellant testified that Johnson was the

aggressor in the prior altercations. N.T., 3/10/2014, at 94-97. With respect

to the September 5, 2012 incident, Appellant testified that “out of nowhere”

Johnson was “banging on the door” of Appellant’s car while it was stopped,

and Johnson threatened to kill Appellant. Id. at 98. Appellant believed that

Johnson had a gun. Id. Appellant began to drive away, and Johnson was

following Appellant in his car close enough to be tapping the bumper.

According to Appellant, when the two were stopped, Johnson got out of his

car and reached into the passenger side of Appellant’s car.         Appellant

testified that Johnson lifted his shirt, making Appellant believe Johnson had

a gun.   Appellant then ducked away when he heard a thud.       According to

Appellant, he “wasn’t trying to hit [Johnson] that day. [He] was trying to

get away from him.” Id. at 102.           He “ducked because [he] thought

[Johnson] had a gun and he was going to shoot at [Appellant] or

something.” Id. Appellant testified that he “heard a thud” and kept driving

“because [he] didn’t know if [he] hit [Johnson] or anything and if [he] did,

[he] was afraid to stop because [he] didn’t know whether [Johnson] was

going to come after him.” Id.

      The trial court found Appellant not guilty of attempted murder and

guilty on the remaining charges. A sentencing hearing occurred on June 17,

2014. At that hearing, Appellant apologized for any wrongdoing, asked for

mercy, and had a number of family members present letters and testify on



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his behalf. The trial court pointed out that at no time did Appellant accept

responsibility for Johnson’s injuries, and stated that “the public has to be

protected.” N.T., 6/17/2014, at 30. The trial court sentenced Appellant to a

below-the-mitigated-range sentence of 6 to 12 years of incarceration for

aggravated assault and a concurrent two-and-a-half years to five years of

incarceration for PIC.        He was sentenced to no further penalty on the

remaining charges.

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

Appellant timely filed an appeal to this Court, and Appellant’s judgment of

sentence was affirmed on the basis that Appellant’s Pa.R.A.P. 1925(b)

statement was filed untimely. Commonwealth v. Brooks, 159 A.3d 597

(Pa. Super. 2016) (unpublished memorandum), appeal denied, 168 A.3d

1288 (Pa. 2017).

       Appellant timely filed a petition pursuant to the Post-Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546, requesting the reinstatement of his

right to a direct appeal. The PCRA court granted Appellant’s petition, and

this timely-filed direct appeal followed.        Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       On appeal, Appellant has set forth three issues for our review.4         We

begin with Appellant’s sufficiency-of-the-evidence challenge. See Appellant’s

____________________________________________
4Appellant included a fourth issue in his Pa.R.A.P. 1925(b) statement, but
has decided not to pursue that issue on appeal. See Appellant’s Brief at 8
(Footnote Continued Next Page)

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Brief at 19-21. According to Appellant, he presented sufficient evidence to

establish a claim of self-defense, and the Commonwealth did not satisfy its

burden in disproving his claim.

      We review this issue mindful of the following.

             When reviewing a challenge to the sufficiency of the
      evidence, we must determine whether the evidence admitted at
      trial, and all reasonable inferences drawn therefrom, when
      viewed in a light most favorable to the Commonwealth as verdict
      winner, support the conviction beyond a reasonable doubt.
      Where there is sufficient evidence to enable the trier of fact to
      find every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      This standard applies equally where the Commonwealth’s
      evidence is circumstantial.

            In conducting this analysis, we do not weigh the evidence
      and substitute our judgment for that of the fact-finder.
      Additionally, the Commonwealth’s evidence need not preclude
      every possibility of innocence in order to prove guilt beyond a
      reasonable doubt. The fact-finder is free to believe all, part, or
      none of the evidence.

Commonwealth v. Knox, __ A.3d __, 2019 WL 4316128 at *4 (Pa. Super.

2019) (internal citations and quotation marks omitted).

      Here,     because     Appellant’s        sufficiency-of-the-evidence   challenge

implicates a claim of self-defense, we observe the following.

            The use of force against a person is justified 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. See 18 Pa.C.S. § 505(a). When a
      defendant raises the issue of self-defense, the Commonwealth
(Footnote Continued) _______________________
n.1 (“After conducting further research on [the issue related to calculation of
Appellant’s prior record score], Appellant withdraws the … argument.”); see
also id. at 18.


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       bears the burden to disprove such a defense beyond a
       reasonable doubt. While there is no burden on a defendant to
       prove the claim, before the 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.[5]

Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa. Super. 2003)

(internal citations and quotation marks omitted).

       A self-defense claim thus entails three elements:

       (1) [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;

       (2) [Defendant] was free from fault in provoking the difficulty
       which culminated in the slaying; and

       (3) [Defendant] did not violate any duty to retreat.

Knox, __ A.3d __, 2019 WL 4316128 at *5 (internal citations omitted).



____________________________________________
5 Instantly, the trial court concluded that Appellant properly raised a claim of
self-defense. See Trial Court Opinion, 3/29/2019, at 8-9 (“Through his own
testimony, [Appellant] presented sufficient evidence to bring the issue of
self-defense before the court.”). However, our Supreme Court has held that
the defense of self-defense is available only when a defendant admits that
he used deadly force upon the victim intentionally. See Commonwealth v.
Philistin, 53 A.3d 1, 12 (Pa. 2012); Commonwealth v. Harris, 665 A.2d
1172, 1175 (Pa. 1995) (“[T]he defense of self-defense necessarily requires
that the appellant admit that the shooting was intentional in order to protect
one’s self.”). At trial, Appellant testified that he “didn’t know if [he] hit”
Johnson. N.T., 3/10/2014, at 102. On appeal, Appellant argues that he
“incidentally struck” Johnson. Appellant’s Brief at 20. Thus, it is arguable
that the trial court should not have even considered a self-defense defense.
However, because the trial court concluded that Appellant satisfied his
burden to put forth a self-defense defense, and the Commonwealth does not
dispute the claim, we will consider the issue.


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      Here, the trial court concluded that the Commonwealth proved beyond

a reasonable doubt that Appellant “did not reasonably believe he was in

danger of death or serious injury, and that even if [Appellant were] afraid of

Johnson, running Johnson over with a car was not a reasonable response.”

Trial Court Opinion, 3/29/2019, at 12. According to the trial court, “[e]ven if

[Appellant’s] incredible version of events [were] true, [Appellant] safely

could have retreated by simply driving away in his car once Johnson parked

and exited his own vehicle.” Id. at 12-13.

      On appeal, Appellant assails the trial court’s accepting of “[Johnson’s]

version of events” as true. Appellant’s Brief at 21. Furthermore, Appellant

points out that the trial court failed to acknowledge that Johnson had a

history of abusing Appellant. Id.

            When the defendant’s own testimony is the only evidence
      of self-defense, the Commonwealth must still disprove the
      asserted justification and cannot simply rely on the [fact-
      finder’s] disbelief of the defendant’s testimony…. If there are
      other witnesses, however, who provide accounts of the material
      facts, it is up to the fact finder to reject or accept all, part or
      none of the testimony of any witness. The complainant can serve
      as a witness to the incident to refute a self-defense claim.
      Although the Commonwealth is required to disprove a claim of
      self-defense arising from any source beyond a reasonable doubt,
      a [fact-finder] is not required to believe the testimony of the
      defendant who raises the claim.

Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014) (internal

citations and quotation marks omitted).

      In this case, there were two witnesses who testified to this altercation,

Appellant and Johnson. The trial court believed the testimony of Johnson,


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see Trial Court Opinion, 3/29/2019, at 13, and we cannot and will not

disturb that conclusion. Moreover, this incident occurred on a two-lane road

and the damage to Appellant’s car was on the passenger side of the vehicle.

Under such circumstances, the trial court did not err in concluding that

Appellant violated his duty to retreat because there was adequate space for

Appellant to have left the scene safely without hitting Johnson. Accordingly,

we discern no error of law in the trial court’s conclusions, and agree with the

trial court that the Commonwealth disproved Appellant’s claim of self-

defense beyond a reasonable doubt. Thus, Appellant is not entitled to relief.

      Appellant next argues that the verdict was against the weight of the

evidence. See Appellant’s Brief at 22-23.

      Pennsylvania Rule of Criminal Procedure 607 provides, in
      pertinent part, that a claim that the verdict was against the
      weight of the evidence shall be raised with the trial judge in a
      motion for a new trial: (1) orally, on the record, at any time
      before sentencing; (2) by written motion at any time before
      sentencing; or (3) in a post-sentence motion.

Commonwealth v. Barnhart, 933 A.2d 1061, 1066 (Pa. Super. 2007)

(internal citation and quotation marks omitted). “The purpose of this rule is

to make it clear that a challenge to the weight of the evidence must be

raised with the trial judge or it will be waived.” Id. Here, Appellant did not

raise this issue prior to sentencing or in his post-sentence motion. Thus, the

issue is waived.




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      Finally, Appellant challenges the discretionary aspects of his sentence.

See Appellant’s Brief at 15-18.      We consider this issue mindful of the

following.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

                                    ***

            When imposing [a] sentence, a court is required to
      consider the particular circumstances of the offense and the
      character of the defendant. In considering these factors, the
      court should refer to the defendant’s prior criminal record, age,
      personal characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:

             (1) whether appellant has filed a timely notice of
             appeal, see Pa.R.A.P. 902 and 903; (2) whether the
             issue was properly preserved at sentencing or in a
             motion to reconsider and modify sentence, see
             Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
             fatal defect, Pa.R.A.P. 2119(f); and (4) whether
             there is a substantial question that the sentence
             appealed from is not appropriate under the
             Sentencing Code, 42 Pa.C.S.[] § 9781(b).



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Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Appellant has satisfied the first three requirements: he timely filed a

notice of appeal, preserved the issue in a post-sentence motion, and

included a Pa.R.A.P. 2119(f) statement in his brief. See Appellant’s Brief at

12-13. Therefore, we now consider whether Appellant has raised a

substantial question for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.        Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.”    Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

      In his Pa.R.A.P. 2119(f) statement, Appellant contends that the trial

court “imposed a sentence that was so manifestly excessive as to constitute

too severe a punishment.” Appellant’s Brief at 12.      Appellant argues that

while the trial court “did take into account some mitigating factors, [the trial

court] failed to account [for] the rehabilitative needs of Appellant” as well as

other mitigating factors. Id.




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       “[A]n allegation that the sentencing court failed to consider mitigating

factors generally does not raise a substantial question for our review.”

Commonwealth v. Rhoades, 8 A.3d 912, 918-19 (Pa. Super. 2010).

Additionally, a claim that the sentencing court failed to consider a

defendant’s rehabilitative needs does not raise a substantial question.

Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013). However,

this Court has held that where there is a claim that a “sentence is

disproportionate to the offense and the trial court failed to consider

mitigating     factors,    Appellant     has   raised   a   substantial   question.”

Commonwealth v. DiClaudio, 210 A.3d 1070, 1075 (Pa. Super. 2019).

       Instantly, despite the fact Appellant received a below-the-mitigated

range sentence,6 he still claims the sentence is excessive and the trial court

failed to consider mitigating factors. Thus, arguably, Appellant has raised a

substantial question, and we may consider the merits of his claims. See id.

       Appellant contends the trial court did not consider Appellant’s

background in assessing Appellant’s rehabilitative needs. Appellant’s Brief at

17. According to Appellant, the record established that he was attempting

____________________________________________
6 In fact, at sentencing, the Commonwealth requested a sentence of 9 to 20
years of incarceration. N.T., 6/17/2014, at 30. When the trial court indicated
that it was inclined to sentence Appellant to 6 to 12 years of incarceration,
the Commonwealth argued that such a minimum sentence was below the
mitigated range, which began with a 6-and-half-year sentence. Id.
Nevertheless, the trial court sentenced Appellant to this below-the-
mitigated-range sentence. Id.



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to provide for his family, he was in the process of obtaining certification as a

pharmacy technician, and he was responsible for the care of his mother

because his sister had been murdered five years prior. Id. Thus, Appellant

claims that such a long prison sentence was unreasonable under these

circumstances and the trial court abused its discretion at sentencing.

            The sentencing court is given broad discretion in
      determining whether a sentence is manifestly excessive because
      the sentencing judge is in the best position to measure factors
      such as the nature of the crime, the defendant's character and
      the defendant's display of remorse, defiance, or indifference. In
      order to find that a trial court imposed an unreasonable
      sentence, we must determine that the sentencing court imposed
      the sentence irrationally and that the court was not guided by
      sound judgment.

            The sentencing code offers general guidelines with respect
      to the imposition of a particular sentence. Reasonableness of the
      sentence imposed by the trial court is based on:

            (1)   The nature and circumstances of the offense and the
                  history and characteristics of the defendant.

            (2)   The opportunity of the sentencing court to observe
                  the    defendant,   including   any    presentence
                  investigation.

            (3)   The findings upon which the sentence was based.

            (4)   The guidelines promulgated by the commission.

      42 Pa.C.S.[ ] § 9781(d). The sentencing code guidelines also
      require the sentence to be consistent with the protection of the
      public, the gravity of the offense as it relates to the impact on
      the life of the victim and on the community, and the
      rehabilitative needs of the defendant.




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DiClaudio, 210 A.3d at 1076 (citing Commonwealth v. Riggs, 63 A.3d

780, 786 (Pa. Super. 2012) (internal quotation marks and some citations

omitted)).

      Instantly, at sentencing, the trial court took into account the impact on

Johnson, who “was injured badly and in the hospital with a broken leg and

other injuries.” N.T., 6/17/2014, at 26. In addition, the trial court pointed

out that Appellant did not take responsibility for injuring Johnson; rather, he

claimed that Johnson was “mentally ill” and “made it up.” Id. The trial court

acknowledged that Appellant had not been convicted of a crime in 30 years.

Id. at 28.    The trial court pointed out that it listened to the witnesses at

trial, and that the “public has to be protected.” Id. at 30. The trial court

concluded that Appellant was entitled to mitigation, and sentenced Appellant

below the mitigated range. “Moreover, where, as here, the sentencing court

had the benefit of a pre-sentence investigation report, we can assume the

sentencing    court   was   aware   of   relevant   information   regarding   the

defendant’s    character    and   weighed   those   considerations   along    with

mitigating statutory factors.” Rhoades, 8 A.3d at 919 (citations and

quotation marks omitted).

      Thus, the trial court had the benefit of all relevant information, had

observed Appellant during trial and at sentencing, and concluded he was

entitled to mitigation. Based on the foregoing, “we conclude that Appellant

has failed to demonstrate that the sentencing court ignored or misapplied



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the law, exercised its judgment for reasons of partiality, prejudice, bias or ill

will, or arrived at a manifestly unreasonable decision” in imposing

Appellant’s below-the-mitigated-range sentence. DiClaudio, 210 A.3d at

1077 (internal quotation marks omitted).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/20




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