J-S16013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA :              IN THE SUPERIOR COURT OF
                              :                   PENNSYLVANIA
                              :
           v.                 :
                              :
                              :
 KEVIN ELIAS WILSON           :
                              :
                Appellant     :              No. 951 MDA 2017
                              :

          Appeal from the Judgment of Sentence April 25, 2017
 In the Court of Common Pleas of Cumberland County Criminal Division at
                    No(s): CP-21-CR-0003170-2016


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 30, 2018

      Kevin Elias Wilson appeals from the aggregate judgment of sentence of

nine months to twenty-three months incarceration following his convictions of

simple assault, criminal conspiracy to commit simple assault, harassment, and

criminal conspiracy to commit harassment. We affirm.

      On June 26, 2016, David King, the victim, was washing his car at his

home on Enola Road in Carlisle when he heard a female scream emanating

from Ponderosa Road, a private lane around the corner. Mr. King decided to

investigate, and while walking up the middle of Ponderosa Road, he

encountered Appellant and his step-brother, Shawn Bowermaster, in front of

Appellant’s father’s property located at 402 Ponderosa Road. Appellant and

Bowermaster approached Mr. King whereupon Bowermaster punched him in

the face. Appellant then told Mr. King that “he was going to get his ass kicked”
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S16013-18


if he did not leave the area. Before Mr. King could leave, Appellant pushed

him, and both Appellant and Bowermaster began to punch Mr. King with closed

fists. One of the men pushed Mr. King to the ground, whereupon both men

kicked him numerous times in the face, head, shoulder, chest and back.

      When the beating stopped, Mr. King stumbled home covered in blood.

Mrs. King immediately called police, who arrived moments later.        Mr. King

informed the police that the attack occurred at 402 Ponderosa Road, and that

he saw a vehicle driving away from the scene just after the confrontation. Mr.

King also informed the officers that he left his hat at the scene of the

altercation. Mr. King was taken to the hospital where he remained overnight

due to the extensive injuries and lacerations he received, requiring, inter alia

five staples to his scalp.

      The police proceeded to 402 Ponderosa Road where they learned that

Appellant and his wife had driven away moments after the incident to return

to their residence in Harrisburg. Bowermaster eventually led the officers to

Appellant’s father’s garage, where Mr. King’s hat was hanging on the wall.

Bowermaster gave police Appellant’s phone number so they could reach him

to speak about the incident. During a subsequent phone call, Appellant denied

direct involvement in the altercation, and stated that only Bowermaster

engaged in physical contact with Mr. King.

      A jury trial was held in March 2017, after which Appellant was convicted

of simple assault and criminal conspiracy to commit simple assault. The trial


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court subsequently convicted Appellant of the summary offenses of

harassment and criminal conspiracy to commit harassment.            On April 25,

2017, the trial court sentenced Appellant to an aggregate term of nine months

to twenty-three months incarceration. Appellant filed a timely post-sentence

motion which the trial court denied. Appellant thereafter filed a timely notice

of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.

      Appellant raises the following issues for our review.

      I.    Whether the evidence presented at trial was insufficient to
      support the jury’s finding that Appellant did not act in self-defense
      of other persons under 18 Pa.C.S. § 506(a).

      II.    Whether     the    evidence     presented    at    trial  was
      insufficient to support the jury’s finding that Appellant did not act
      in self-defense of property under 18 Pa.C.S. § 507(a).

      III. Whether the evidence presented at trial was sufficient to
      convict Appellant on the charge of criminal conspiracy to commit
      simple assault.

      IV.   Whether the jury’s finding of guilt as it relates to the charges
      of simple assault and criminal conspiracy to commit simple assault
      was against the weight of the evidence presented at trial.

      V.    Whether the trial court erred in instructing the jury on
      consciousness of guilt, flight, or concealment.

Appellant’s brief at 5 (unnecessary capitalization omitted).

      Appellant’s first three claims challenge the sufficiency of the evidence

supporting his convictions.   Our standard of review of such claims is well-

settled.




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            [W]e evaluate the record in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission thereof
      by the accused, beyond a reasonable doubt. Nevertheless, the
      Commonwealth need not establish guilt to a mathematical
      certainty. [T]he facts and circumstances established by the
      Commonwealth need not be absolutely incompatible with the
      defendant’s innocence. Any doubt about the defendant’s guilt is
      to be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013) (citations

and quotation marks omitted). Importantly, “the jury, which passes upon the

weight and credibility of each witness’s testimony, is free to believe all, part,

or none of the evidence.” Commonwealth v. Ramtahal, 33 A.3d 602, 607

(Pa. 2011).

      With regard to Appellant’s claim that he acted in defense of others,

Pennsylvania law permits the use of force against another person in limited

circumstances, such as defense of others. See 18 Pa.C.S. § 506. The defense

of another relies substantially on the justification of self-defense, and is

available only where the elements of the following statute have been met:

      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.

18 Pa.C.S. § 505 (emphasis added).

      As for defense of others, the relevant statute provides as follows:


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     (a)   General rule.--The use of force upon or toward the person
           of another is justifiable to protect a third person when:

           (1)    the actor would be justified under section 505
                  (relating to use of force in self-protection) in using
                  such force to protect himself against the injury he
                  believes to be threatened to the person whom he
                  seeks to protect;

           (2)    under the circumstances as the actor believes them to
                  be, the person whom he seeks to protect would be
                  justified in using such protective force; and

           (3)    the actor believes that his intervention is necessary
                  for the protection of such other person.

18 Pa.C.S. § 506(a). Further,

     [A]s provided by statute and as interpreted through our case law,
     to establish the defense of self-defense or defense of others it
     must be shown that: a) the slayer or the other he seeks to protect
     was free from fault in provoking or continuing the difficulty which
     resulted in the slaying; b) that the slayer must have reasonably
     believed that he or the other he seeks to protect was in imminent
     danger of death or great bodily harm, and that there was a
     necessity to use such force in order to save himself or the other
     therefrom; and c) the slayer or the other he seeks to protect did
     not violate any duty to retreat or to avoid the danger.

Commonwealth v. Hornberger, 74 A.3d 279, 284-85 (Pa.Super. 2013)

(citation, emphasis, and brackets omitted); see also Commonwealth v. La,

640 A.2d 1336, 1346 (Pa.Super. 1994) (stating that the claims of self-defense

and defense of others are generally addressed in the same manner). “In cases

where [this defense is] an issue, the Commonwealth is required to prove

beyond a reasonable doubt that the defense does not apply to the situation in

order to sustain the conviction.” Commonwealth v. Torres, 766 A.2d 342,

345 (Pa. 2001).

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      Appellant contends that he was justified in the use of force for the

protection of others. Appellant points to his trial testimony that he was at his

father’s residence for a child’s birthday party, and that when he saw Mr. King,

at least two of the children were still playing outside on a swing set.

Appellant’s brief at 14.   According to Appellant, Mr. King was walking and

stopping behind each of the trees on his father’s property, one of which was

approximately fifty feet from the swing set. Id. at 15. Appellant claims that

he was afraid of what Mr. King would do, and argues that, given these

circumstances, the Commonwealth failed to meet its burden of proof because

it was reasonable for him to believe that use of force was necessary to protect

the children who were still outside. Id.

      In this case, the fact-finder found Appellant’s testimony to be

unbelievable.    See Trial Court Opinion, 8/15/17, at 11; see also

Commonwealth v. Smith, 97 A.3d 782, 788 (Pa.Super. 2014) (“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.”). However, the

Commonwealth cannot sustain its burden of proof by relying “on the [fact-

finder’s] disbelief of the defendant’s testimony . . . If there are other

witnesses, however, who provide accounts of material facts, it is up to the

[fact-finder] to reject or accept all, part or none of the testimony of any

witness.” Id. (internal quotation marks omitted).


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     Mr. King testified that he was washing his vehicle on his driveway on

Enola Road when he heard a woman scream. N.T. Trial, 3/6-8/17, at 29-30.

He turned up Ponderosa Road to investigate if anyone was in danger or needed

help. Id. at 30. As he was walking up the middle of the road, Appellant and

Bowermaster came out of a yard and into the driveway on Mr. King’s left. Id.

at 30-32. Bowermaster approached Mr. King from the right side of the road;

Appellant walked directly towards him. Mr. King sensed that he was in danger,

and tried to explain to the men that he was a neighbor, and that he had heard

screaming.    Id. at 33. As soon as he made this statement, Bowermaster

punched Mr. King in the face. Id. Appellant threatened Mr. King that “he was

going to get his ass kicked” if he did not leave the area. Id. at 135. Before

Mr. King could leave, Appellant pushed him, and then Appellant and

Bowermaster began to punch Mr. King with closed fists. Id. Mr. King told

Appellant and Bowermaster that he did not want any problems with them, and

turned to leave; however, they continued to punch Mr. King in the back and

head. Id. One of the men pushed Mr. King to the ground, whereupon both

men kicked him numerous times in the face and on his head, shoulder, chest

and back. Id. at 33-34. When the beating stopped, Mr. King stumbled home

covered in blood. Id. at 37.

     Based on Mr. King’s testimony, Appellant’s use of force was not

“immediately necessary” for the purpose of protecting others against the use

of unlawful force by Mr. King. See 18 Pa.C.S. §§ 505, 506(a). Moreover,


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Appellant was not “free from fault in provoking or continuing the difficulty

which resulted in the [altercation].” See Horberger, supra at 284. Rather,

as explained by the trial court,

             The evidence submitted at trial, taken in the light most
      favorable to the Commonwealth, established that Appellant and
      [Bowermaster] initiated a physical confrontation with [Mr. King]
      without provocation, and continued beating [him] until he was
      able to escape and stumble home. Appellant’s own testimony aids
      the Commonwealth in disproving self-defense. This is first shown
      by demonstrating that [Bowermaster] initiated the conflict by
      striking the victim. Appellant testified that [Bowermaster] threw
      the first punch, which prompted [Mr. King] to state “I don’t
      understand.” Appellant then informed [Mr. King] that “You’re
      gonna get your ass beat.” [Mr. King] testified that immediately
      after the first punch, Appellant and [Bowermaster] continued
      punching and kicking him. Here, the evidence of record . . .
      reflects that [Mr. King] did not use or threaten to use force toward
      anyone. Rather, the evidence . . . reflects that Appellant and
      [Bowermaster] were the aggressors and that they beat [Mr. King]
      without provocation.

            [Additionally,] . . . there was no threat whatsoever to the
      children. . . . [Indeed, Appellant testified that he informed the
      children to stop playing and go inside, and that they were out of
      the area before the confrontation with Mr. King.] There was no
      evidence of any threatening conduct by [Mr. King] toward anyone;
      rather, the opposite was on display.

            [Finally,] . . . [Mr. King] was at least fifty feet away from
      any people that Appellant or [Bowermaster] claimed to have been
      protecting.      Appellant and [Bowermaster] initiated the
      confrontation and landed the first blow against [Mr. King] without
      provocation.     Therefore, the jury correctly concluded that
      Appellant did not act in self-defense of others . . .

Trial Court Opinion, 8/15/17, at 5-7 (footnotes omitted). We agree with the

reasoning of the trial court, and on this basis conclude that Appellant’s first

claim lacks merit.


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     In his second claim, Appellant argues that the use of force on Mr. King

was justified because he was defending his father’s property. Section 507 of

the Crimes Code provides, in relevant part, as follows:

     (a) Use of force justifiable for protection of property. The use of
     force upon or toward the person of another is justifiable when the
     actor believes that such force is immediately necessary:

           (1) to prevent or terminate an unlawful entry or other
           trespass upon land or a trespass against or the unlawful
           carrying away of tangible movable property, if such land or
           movable property is, or is believed by the actor to be, in his
           possession or in the possession of another person for whose
           protection he acts….

           ....

     (c) Limitations on justifiable use of force. --

           (1) The use of force is justifiable under this section only if
           the actor first requests the person against whom such force
           is used to desist from his interference with the property,
           unless the actor believes that:

                    (i) such request would be useless;

                    (ii) it would be dangerous to himself or another person
                    to make the request; or

                    (iii) substantial harm will be done to the physical
                    condition of the property which is sought to be
                    protected before the request can effectively be made.

18 Pa.C.S. § 507.

     Appellant contends that it was immediately necessary to use force to

eject Mr. King from Ponderosa Road because a trespass had already occurred

and was occurring as Mr. King proceeded down the roadway. Appellant’s brief

at 17. Appellant argues that Ponderosa Road is a private road, and that “no

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trespassing” signs had been posted, thereby placing Mr. King on notice that

he was not welcome. Id. Appellant points to the trial testimony of Jesse

Beichler, a resident of Ponderosa Road, that he had previously told Mr. King

to stay off Ponderosa Road. Id. Appellant also claims that Mr. King was told

to get off his father’s property, and that Mr. King refused to leave. Id. at 18.

      In the case sub judice, there is not a scintilla of evidence that it was

“immediately necessary” to use force to eject Mr. King from Appellant’s

father’s land, if Appellant actually believed that Mr. King was on his father’s

land. As the trial court explained,

      the evidence established that [Mr. King] was standing in the
      portion of Ponderosa Road that was a private street when he was
      accosted by Appellant and [Bowermaster]. The road was not
      owned by Appellant or his family, and they did not have the
      authority to unilaterally exclude anyone from it. Nor did Appellant
      or [Bowermaster] attempt to ask [Mr. King] to leave; instead they
      approached him, struck him, and continued pummeling him until
      he was able to escape. The evidence taken in the light most
      favorable to the Commonwealth established that [Mr. King] was
      not on any land owned by Appellant or his family, did not pose
      any threat making it too dangerous to ask him to leave, and that
      [Mr. King] posed no threat to the physical condition of Appellant’s
      family’s land. [Therefore, s]ufficient evidence existed for the jury
      to find that Appellant’s actions were not justified by the use of
      force to protect properly . . .

Trial Court Opinion, 8/15/17, at 5-7 (footnotes omitted). We find that

the record supports the trial court’s determination, and on this basis

conclude that Appellant’s second claim lacks merit.




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      In his third claim, Appellant contends that the evidence presented at

trial was insufficient to support his conviction of criminal conspiracy to commit

simple assault. A criminal conspiracy conviction requires proof of:

      (1) an intent to commit or aid in an unlawful act, (2) an agreement
      with a co-conspirator and (3) an overt act in furtherance of the
      conspiracy. Because it is difficult to prove an explicit or formal
      agreement to commit an unlawful act, such an act may be proved
      inferentially by circumstantial evidence, i.e., the relations,
      conduct or circumstances of the parties or overt acts on the part
      of the co-conspirators.

Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa.Super. 2001)

(quoting Commonwealth v. Spotz, 756 A.2d 1139, 1162 (Pa. 2000)).

Circumstantial evidence can include, but is not limited to, the relationship

between the parties, the knowledge of and participation in the crime, and the

circumstances and conduct of the parties surrounding the criminal episode.

Commonwealth v. French, 578 A.2d 1292, 1294 (Pa.Super. 1990). “These

factors may coalesce to establish a conspiratorial agreement beyond a

reasonable doubt where one factor alone might fail.” Id.

      Further, conspiracy need not be proven by evidence of explicit or formal

agreement to commit an unlawful act. See Commonwealth v. Manlin, 411

A.2d 532, 534 (Pa.Super. 1979). While more than mere association must be

shown, evidence of an appellant’s actions and the circumstances in which they

were taken is sufficient if it allows a reasonable inference that a corrupt

agreement existed. Id.

      The elements of simple assault are defined, in relevant part, as follows:


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

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

                    ....

              (3) attempts by physical menace to put another in fear of
              imminent serious bodily injury . . .

18 Pa.C.S. § 2701.          “Bodily injury” is defined in the crimes code as

“impairment of physical condition or substantial pain.” See 18 Pa.C.S. § 2301.

        Appellant contends that the Commonwealth failed to prove that he

entered an agreement with Bowermaster to assault Appellant.                 Appellant’s

brief   at   20.    While   Appellant   concedes         that   he   and   Bowermaster

simultaneously assaulted Mr. King, he claims that this fact alone does not

establish the existence of an agreement.           Id.    According to Appellant, the

evidence merely established that he acted as an accomplice.                   Id.   We

disagree.

        Here, the evidence, when viewed in the light most favorable to the

Commonwealth        as   verdict   winner,       established     that   Appellant   and

Bowermaster are step-brothers who were at Appellant’s father’s house

attending a child’s birthday party. They simultaneously approached Mr. King

and surrounded him from different sides of the road. Bowermaster, without

provocation, struck Mr. King, before Appellant threatened “You’re going to get

your ass beat.” Thereafter, Appellant and Bowermaster proceeded to strike,


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push, kick and otherwise physically assalt Mr. King. The jury, as the fact-

finder, could, and did, make the reasoned inference from that evidence that

Appellant and Bowermaster had an implicit agreement or understanding to

use physical violence against Mr. King.          See Franklin, supra at 722.

Accordingly, Appellant’s claim fails.

      Appellant’s fourth claim presents a challenge to the weight of the

evidence supporting his convictions of simple assault and criminal conspiracy

to commit simple assault.

             Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court's conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted).

      A challenge to the weight of the evidence concedes that sufficient

evidence supports the verdict. Id. at 751. A new trial should not be granted

merely because the judge would have assessed the credibility of witnesses

differently and reached a different conclusion than the jury. Id. The trial

court does not sit as the thirteenth juror in evaluating the weight of the

evidence. Id. The trial court is not required to view the evidence in the light


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most favorable to the Commonwealth. Id. at 751-52. “A verdict is said to be

contrary to the evidence such that it shocks one’s sense of justice when “the

figure of Justice totters on her pedestal,” or when “the jury’s verdict, at the

time of its rendition, causes the trial judge to lose his breath, temporarily, and

causes him to almost fall from the bench, then it is truly shocking to the

judicial conscience.” Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa.Super.

1997) (citations omitted).

      Appellant contends that Mr. King was trespassing when he entered

Ponderosa Road and proceeded toward his father’s residence.             Appellant

points to Mr. Beichler’s testimony that he had warned Mr. King to stay off

Ponderosa Road and had posted a “no trespassing” sign. Appellant also claims

that, “[d]espite his denial at trial, within an hour of the incident[, Mr.] King

told the police that he had been hiding behind a tree.” According to Appellant,

“[t]hese two facts established that [Mr.] King was trespassing when he

entered Ponderosa Road and that he committed a second trespass when he

hid behind a tree on Appellant’s father’s property.” Appellant’s brief at 21.

On this basis, Appellant contends that he acted lawfully when he exercised his

right to use self-defense to terminate a trespass that was occurring. Id.

      As noted above, in challenging the weight of the evidence supporting

his convictions, Appellant concedes that the evidence was sufficient to support

his convictions. See Widmer, supra. Moreover, we review a trial court’s

ruling on a challenge to the weight of the evidence for an abuse of discretion,


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and give the gravest consideration to the findings and reasons advanced by

the trial judge when reviewing its determination.            Id.    With these

considerations in mind, the trial court explained the basis for its rejection of

Appellant’s weight claim as follows:

            [Mr. King] testified that he was standing in the street near
      Appellant’s father’s property when Appellant and [Bowermaster]
      ambushed him. The physical evidence clearly reflected that [Mr.
      King] was beaten. The testimony of [Mr. King], if believed by the
      jury, would establish that Appellant and [Bowermaster] both
      perpetrated the beating. Appellant conceded in his testimony that
      [Bowermaster] struck [Mr. King] first . . .. The jury was free to
      weigh the credibility of [Mr. King’s] version of events and
      Appellant’s version when determining whether Appellant
      committed the crimes of simple assault and criminal conspiracy to
      commit simple assault. The jury clearly found [Mr. King] credible
      and Appellant not credible, which was not shocking to this court’s
      conscious.

Trial Court Opinion, 8/15/17, at 11 (footnotes omitted).

      We discern no abuse of discretion by the trial court in rejecting

Appellant’s challenge to the weight of the evidence supporting his convictions

for simple assault and criminal conspiracy to commit simple assault. Based

on the evidence presented at trial, the court was not shocked or stunned by

Appellant’s convictions. Accordingly, his fourth claim warrants no relief.

      In his final claim, Appellant challenges the trial court’s jury instruction

on consciousness of guilt, flight or concealment. Our standard of review in

assessing a trial court’s jury instruction is as follows:

      [W]hen evaluating the propriety of jury instructions, this Court will
      look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing

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      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury for
      its consideration. Only where there is an abuse of discretion or
      an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014).

      Appellant contends that the trial court erred by providing the following

instruction on consciousness of guilt, flight or concealment to the jury:

            Now there was evidence including the testimony of [Mr.]
      King that a car was seen leaving Ponderosa Road immediately
      after the incident and that of Trooper [Corey] Terek that [Mr.]
      King’s hat had been moved from the assault scene and placed in
      the garage at 402 Ponderosa Road.

            [Appellant] maintains that he simply left the scene of the
      incident because his wife asked him to[,] and he had to return to
      his home in Harrisburg[,] and that [Mr.] King’s hat was not
      concealed but simply hung in the garage at 402 Ponderosa Road.

            The credibility, weight, and effect of this evidence is for you
      to decide. Generally speaking, when a crime has been committed
      and a person thinks he is or may be accused of committing it and
      he flees the scene or conceals the evidence, such flight or
      concealment is a circumstance tending to prove the person is
      conscious of guilt.

            Such flight or concealment does not necessarily show
      consciousness of guilt in every case. A person may do these
      things for some other motive and may do so even though
      innocent. Whether the evidence of flight or concealment in this
      case should be looked at as tending to prove guilt depends on the
      facts and circumstances of this case and especially upon motives
      that may have prompted the flight or concealment. You may not
      find [Appellant] guilty solely on the basis of evidence of fight or
      concealment.

N.T. Trial, 3/6-8/17, at 196-97.

      According to Appellant, although Mr. King testified that he saw a vehicle

leave 402 Ponderosa Road following the incident, no witness identified



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Appellant as either the driver or the passenger in the vehicle. Appellant also

contends that Mr. King’s trial testimony regarding the time frame in which the

incident occurred and when the police arrived1 was inconsistent with Trooper

Terek’s testimony.2 Appellant points to his testimony that he stayed at his

father’s residence for at least one half hour after the incident occurred.

Appellant’s brief at 23. On this basis, Appellant contends that the evidence

did not support the trial court’s conclusion that he immediately fled the scene.

       Appellant further claims that the trial court’s conclusion that Appellant’s

family was not immediately forthcoming regarding Mr. King’s hat is not

supported by the evidence.          Appellant asserts that the evidence of record

demonstrates that his family told police that they had the hat, and then

accompanied police to its location. Id. at 23-24. On this basis, Appellant

argues that the trial court’s jury instruction on consciousness of guilt, flight,

or concealment was improper because there was no evidence that he fled from

the scene or concealed Mr. King’s hat in an attempt to conceal the evidence

of a crime. Id.



____________________________________________


1 Mr. King testified that the incident occurred between 8:45 p.m. and 9:00
p.m., and that the police arrived at his home at 9:30 p.m. See N.T. Trial,
3/6-8/17, at 43-44.

2Trooper Terek testified that he was dispatched to the King’s residence around
9:30 p.m., and that it took approximately fifteen to twenty minutes to arrive
at the scene. See N.T. Trial, 3/6-8/17, at 62, 72.



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      Here, Appellant does not contend that the instruction in question

provides an inaccurate statement of the law; rather, he claims that the

evidence of record did not support such an instruction. Upon careful review

of the record, we disagree. As the trial court explained,

             [T]he Commonwealth presented evidence that Appellant
      fled the scene and that an attempt was made to conceal the crime.
      [Mr. King] observed a vehicle leaving Ponderosa Road shortly after
      the attack, which matched Appellant’s testimony that he left the
      scene shortly after the incident. Trooper Terek testified that [Mr.
      King’s] baseball cap, which he lost during the attack, was located
      inside Appellant’s father’s garage hanging on the wall. It was
      properly for the jury to consider the credibility of [Mr. King],
      Trooper Terek and Appellant, and decide whether Appellant left
      the scene because his wife was afraid, as he testified, or because
      he was attempting to avoid liability. It was also properly for the
      jury to decide whether [Mr. King’s] baseball cap was hung inside
      the garage so that it could later be returned to [Mr. King], as
      Appellant testified, or because Appellant and his family were
      attempting to conceal that a crime had occurred. Notably, Trooper
      Terek testified that Appellant’s family was not immediately
      forthcoming with [Mr. King’s] hat, but the hat was only produced
      after interviews at the scene regarding the incident were
      underway. [See N.T. Trial, 5/6-8/17, at 68.] Appellant conceded
      that he observed [Mr. King] as he stumbled away from the scene,
      and that [Mr. King] looked pretty beat up. Despite that, Appellant
      did not call the police or call for medical assistance, but left the
      scene instead.      Because those factual determinations were
      properly subject to determination by the jury, this court properly
      delivered the instruction of consciousness of guilt - flight or
      concealment . . . .

Trial Court Opinion, 8/15/17, at 13-14 (footnotes omitted).

      Based on our review, the record supports the trial court’s instruction on

consciousness of guilt, flight, or concealment, and we find no abuse of

discretion on the part of the trial court. Accordingly, Appellant’s final claim

warrants no relief.

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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/30/2018




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