J-S07029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILLIAM TERRY LEDFORD

                            Appellant                No. 966 MDA 2013


         Appeal from the Judgment of Sentence of December 6, 2012
            In the Court of Common Pleas of Huntingdon County
             Criminal Division at No.: CP-31-CR-0000260-2011


BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 05, 2014

       William Ledford appeals his December 6, 2012 judgment of sentence.

We vacate the judgment of sentence and remand for a new trial.

       On September 25, 2012, following a jury trial, Ledford was convicted

of aggravated assault1                                                    2



for a shooting incident that occurred on May 11, 2011 in Huntingdon

                                                                  -sentence

motions, the trial court provided the following summary of the facts


____________________________________________


*
       Former Justice specially assigned to the Superior Court.
1
     18 Pa.C.S. § 2702(a)(1). The jury acquitted Ledford of criminal
attempt criminal homicide, 18 Pa.C.S. §§ 901, 2501.
2
       18 Pa.C.S. § 2705.
J-S07029-14


     The event giving rise to this prosecution occurred in the late
     afternoon of May 11, 2011, at an apartment building at 1211
     Mifflin Street, Huntingdon, Pennsylvania.

     Patrolman Adam McBride, a four (4)[-]year veteran of the
     Huntingdon Borough Police Department, testified [that] he was
     working the 5:00 p.m. to 3:00 a.m. shift that day and was
     dispatched to investigate gunshots at the 1211 address. The
     officer proceeded to the address and parked his patrol car on
     Mifflin Street in front of 1211, an apartment building owned by

     dispatch that he had arrived, [Ledford] appeared at the window
                                           ride described [Ledford] as


     told him he was referring to Jeremiah Shoop who throughout the
                                        McBride [testified that] he was
     familiar not only with [Ledford] but also Miah Shoop.

     McBride testified [that] he followed Ledford into the building
     where Ledford showed him a door that led downstairs. [Ledford]
     told [Officer McBride that] Shoop was downstairs. Thinking it

     asked if there was another way to get in. Ledford, he said, took
     him around the side of the house and showed him a door and
     stairway to the basement.

     Security personnel from nearby Juniata College arrived and
     backed up Officer McBride as he entered the building with gun
     drawn.

     Going down the stairs, Officer McBride said he immediately
     smelled gun powder. To the right of the stairway the officer said
     he saw a door with a large number of bullet holes exiting out
     into the hallway.   There was, he said, a belt through the
     doorknob hole securing the door.

     Officer McBride made entry into the basement apartment. He
     immediately encountered Rex Cuff and Dustin Scott. Also to his
     right, he saw Josh Lemin lying on the floor with a wound that
     was bleeding. [Officer] McBride knew all these young men.
     [Ledford], who was behind [Officer] McBride, ran to Lemin.
     Officer McBride cleared all the other rooms to make certain
     [that] Miah Shoop was not there since he had every reason to
     believe Mr. Shoop, whom he believed to be the shooter, was still
     there.

                                   -2-
J-S07029-14


     [Officer] McBride retrieved his personal trauma kit from his
     patrol car and began to administer first aid to Lemin. Soon
     thereafter EMS arrived and took over treatment of Lemin.



     clothing. Lemin, he said, was screaming in pain.

     McBride reported that he saw a Ju
     hand. He picked it up, [] cleared it and set it aside. Since he
     observed a lot of shell casings in different calibers on the floor,
     he asked [Ledford] if there were other weapons.            Ledford
     retrieved two (2) from a back bedroom. The officer cleared both
     weapons and found no rounds. The weapons in the apartment
     were 1) a Tarus Judge model revolver; 2) a Sportsman 12 auto
     12[-]gauge shotgun; and 3) a Sega SKS style .223 semi-
     automatic rifle with scope.

     Officer McBride said he questioned [Ledford] and was told [that]
     Miah Shoop was responsible for the scene he found that
     afternoon. [Ledford] related that Mr. Shoop shot and they shot
     back.

     EMS removed Lemin and Officer McBride moved all the players
     outside where other Huntingdon Borough officers were waiting.
     Thereafter, McBride assisted in the collection of evidence.

     John C. Stevens, a twenty-seven (27)[-]year veteran of the
     Huntington Borough Police Department, testified [that] he
     interviewed [Ledford] on May 11 at the police offices. He had
     known [Ledford] since he was ten (10) or eleven (11). Miranda
     rights were administered, and the statement was recorded and
     played at trial. It lasted an hour and provided listeners with an
     appreciation for the effects of bath salts on users.

     On May 11[, Ledford] related that he was living in the small
     basement apartment at 1211 Mifflin Street. His roommate was
     Josh Lemin. His best friend, Dustin Scott, lived several doors
     further up Mifflin Street.

     On the days leading to May 11, Ledford said that he and Scott
     were experimenting with bath salts. On May 11, the evidence in
     the case was unequivocal that all three (3)      Ledford, Scott,
     Lemin    were using the salts prior to the events which brought
     Officer McBride to the apartment. For reasons that are anything
     but clear, on May 11, [Ledford] and his friends were convinced

                                    -3-
J-S07029-14


     that Miah Shoop and his friends were going to come to the
     apartment to take their bath salts by force. [Ledford] told
     Officer Steven
     to the assault the trio believed was imminent. Rex Cuff, a friend
     of all the players in this event, arrived late in the afternoon and
     involuntarily became a participant. No evidence indicated the
     use of bath salts by Cuff.

     [Ledford] related a phone call from Shoop and his warning to

     knew that they were going to try to get me tonight. I knew it in


     [Ledford] said [that] they barricaded [themselves] inside the
     apartment by using belts to secure the knobless door. Rex, he
     said, started getting calls from Garrett Steele, and then, he said,


     apartment),    [Ledford] told Stevens [that] he saw two (2) guys
     climb out of   a dark SUV and retrieve weapons from the back of
     the vehicle.    He said he could hear Miah taunting him to come
     outside and     the yanking on the door was becoming harder.

     into the floor joists. [Scott], he said, fired a warning shot from
     the Judge.

     Subsequently, Scott obtained the shotgun, and Lemin, the Judge
     revolver. The description of the subsequent shooting inside the
     apartment was difficult to understand[,] but when the shooting
     was over, Josh Lemin had been shot in his arm with the shotgun.

     [Ledford] told Officer Stevens that the guns were all his, and
     that Scott and Lemin followed his orders that afternoon. He
     readily accepted responsibility for Josh [Lemin] getting shot but
     insisted that they had to defend themselves.

     Jeremiah Shoop, 32, testified [that] he knew [Ledford] on May
     11 since he was a friend of his friend, Dustin Scott.        He
     acknowledged knowing Josh Lemin and Rex Cuff as well. He
     never, he said, had a problem with any of these guys until that
     day.

     [Shoop testified that, on May 11, he had] multiple phone
     conversations with Dustin [Scott]. At one point, he said he
     talked to [Ledford]. They told him, he said, to come down. It
     seemed, he said, like he was being goaded into going to 1211.

                                    -4-
J-S07029-14


     He went to 1211. He testified [that] he wanted to get to the
     bottom of it. He took a friend but no weapons. In fact, he
     denied owning any guns. He knew [that] they had weapons. He

     to find out what the problem was.

     Shoop testified [that] he never entered the building but yelled
     down the steps. There was a lot of yelling back and forth, he
     said, but no shooting. This dialogue lasted [] five (5) minutes[,]
     after which he left and went home. On his way he said he heard
     two (2) bangs.

     Trooper Charles Stitt has worked full[-]time since 1996 in the
     forensic services unit of the Pennsylvania State Police. He
     arrived at 1211 Mifflin Street on May 11 at 5:40 p.m. and began
     collecting evidence at 7:32 p.m. after a search warrant had been
     secured. He finished at 12:55 a.m.

     Trooper Stitt testified [that] he collected at the scene fourteen
     (14) .223 caliber shells, four (4) []12 gauge shotgun shells and
     one (1) [.]45 caliber shell or nineteen (19) spent casings. He
     also testified [that] he found no evidence that any shots had
     been fired from outside the apartment into the apartment. He
     also said he found no evidence that shots had been fired into the
     floor joists.

     Shelby Richard Flasher testified [that] he lived in the upstairs
     apartment at 1211 Mifflin and that [Ledford] was his landlord.
     He said he considered [Ledford] a friend and said he also knew
     Dustin Scott. On May 11 in the late afternoon (4:30/5:00),
     Flasher testified he was outside his apartment on the porch to
     smoke. He said he saw Jeremiah Shoop kneeling outside the
     door leading to the basement. Shoop, he said, was talking
     smack and trying to get [Ledford] to come out. Shoop had no
     gun according to Flasher. Flasher testified that Shoop and a
     companion left after fifteen (15) or twenty (20) minutes. No
     gunshots were fired while they were there, he said.         The
     shooting started, he testified, twenty (20) minutes later. He
     went back out on the porch and testified [that] Miah Shoop

     he said, because it was just a mouth battle, playground talk
     between Shoop and Ledford. The witness indicated [that] he
     owned a dark green SUV which he always parked at the back of
     the lot.



                                   -5-
J-S07029-14


     Joshua Lemin testified for the Commonwealth. He said he
     became friends with [Ledford] through Dustin Scott. He got
     along, he said, with Rex Cuff.

     On May 11, he testified he was with [Ledford] and Dustin [Scott]
     and that Rex [Cuff] was there for a short time. He was, he said,
     doing bath salts by [injecting] it in the vein. He was doing at
     that time [one] pack a day. He indicated [that] he was an
     addict.

     Lemin related that during the shooting on May 11, he was hit in
     the arm. As a consequence, he said he spent twenty-one days
     at Pittsburgh UPMC, is required to wear a brace and does not
     have full use of his arm.

     He testified that on May 11, the first time he recalled hearing
     about Jeremiah Shoop was when Shoop was outside the
     apartment.     He remembered one (1) phone call between
     [Ledford] and Jeremiah [Shoop]. He testified [that] he heard
     [Shoop] yel
     shots and the fact that [Ledford] ordered the lights turned off.
     He said that after the warning shots, he freaked out and wanted
     a gun. [Ledford], he said, was in charge, gave orders and
     handed out the guns. He picked up the Judge that was on an
     end table in the living room. He was told, he said, to keep
     watching the front doors as the others were in the rear of the
     apartment. They kept asking, he said, if the belt moved. He
     testified [that] he told them no. As he was unloading the
     revolver onto the end table, he testified [that] he was shot in the
     arm. He yelled for help, he said, and [Ledford] and Rex [Cuff]
     responded. He was shot, he said, with the shotgun.

     Lemin was clear that he never saw Jeremiah Shoop on May 11,



     Rex Cuff testified for the defense. On May 11, Cuff said he went

     where he found Scott. He had known Scott since they were ten
     (10), he said, and on this day he indicated his friend was
     terrified. [Ledford] and [Scott], he said, explained what was
     going on and that Jeremiah [Shoop] was threatening to kill
     them. He testified [that] they were planning to go to Ace
     Hardware to acquire locks to secure the front door of the
     apartment when [Shoop] showed up. In a phone call, he said,
     Shoop challenged [Ledford] to come outside. [Ledford], he said,

                                    -6-
J-S07029-14


      refused and warned Shoop that if he tried to come into the
      apartment, he was armed. Cuff testified that it was common
      knowledge that [Ledford] had guns. He said he heard slamming
      on the door as if someone was trying to get in. [Ledford], he
      said, fired a warning shot. Josh Lemin, he said, had the revolver
      and fired a shot at the front door. The witness said he was

      aid and called 911. He said that even after Lemin was shot he
      continued to see the front door move. In this regard, he
      testified [that] he grabbed the belt securing the door and could
      feel someone outside pulling. He said [that] he heard someone
      above, and, after the police arrived[,] told them that there was
      someone upstairs. He opined that he believed [that it was
      Shoop.].

      Cuff denied using bath salts that day. He also recalled that
      during the shooting the lights were out and that it was very dark
      in the apartment. Cuff said he was scared, not paranoid. He
      admitted that he never called the police although he had a cell
      phone; he never saw Jeremiah Shoop that afternoon and he saw


      The jury was taken to the scene of the events and given the



                                               -14 (footnote omitted; minor

grammatical modifications made for clarity).



instruct the jury on self-

                                     ded that the evidence did not support a

theory of self-

                                                            -80, 120. In so

                                                            sel from arguing

self-defense to the jury.    Id.                                           -




                                    -7-
J-S07029-14




instructions, the jury convicted Ledford of the aforementioned crimes.       On

November 28, 2012, the Commonwealth filed a notice of its intention to



for the aggravated assault charge pursuant to 42 Pa.C.S. § 9712.             On

December 6, 2012, the trial court sentenced Ledford to f

incarceration pursuant to section 9712.        The court imposed no further

penalty on the REAP count, concluding that the charge merged with the

aggravated assault count.

     On    December    17,   2012,   Ledford    filed   post-sentence    motions

challenging, inter alia, the weight and sufficiency of the evidence, the trial

                                       -defense instruction, and the legality



post-sentence motions on April 30, 2013.

     On May 29, 2013, Ledford filed a notice of appeal. The following day,

the trial court directed Ledford to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 20, 2013,

Ledford timely complied. On July 11, 2013, the trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a).

     Ledford raises the following six questions for our consideration:

     1. Whether the trial court erred [] in denying the motion for
        judgment of acquittal challenging the sufficiency of the
        evidence inasmuch as the evidence did not suffice to prove
        beyond a reasonable doubt either the requisite intent of an


                                     -8-
J-S07029-14


         accomplice or negation of justification in self-defense and in
         defense of others?

      2. Whether the trial court abused its discretion in denying the
         motion for new trial asserting that the verdict was against the
         weight of the evidence due to the corroborated testimony of
         an eyewitness?

      3. Whether the trial court erred in omitting to instruct on
         justification in self-protection pursuant to 18 Pa.C.S. § 505
         and in defense of others pursuant to 18 Pa.C.S. § 506, which
         controlled the outcome?

      4. Whether the trial court erred by imposing a five-year
         mandatory minimum term pursuant to 18 Pa.C.S. § 9712 in
         that such imposition was inapplicable and illegal since
         applicability was not decided by the jury beyond a reasonable
         doubt as an element of the crime in violation of the Due
         Process Clause of the Fourteenth Amendment to the United
         States Constitution and of the jury trial guarantee of the Sixth
         Amendment to the United States Constitution?

      5. Whether the trial court abused its discretion in limiting the
         cross-examination of Joshua Lemin, the victim, about pending
         charges against Lemin out of the same incident as that in this
         appeal, which excluded cross-examination was intended to
         impeach Lemin for bias and credibility?

      6. Whether the trial court abused its discretion in admitting
         photographs of wounds to Joshua Lemin, the victim, which
         were not relevant and, if relevant, were inflammatory and
         their evidentiary value was outweighed by unfair prejudice?

Brief for Ledford at 7-8.

      For reasons set forth in more detail below, we ultimately conclude that

the trial court prejudicially erred by not instructing the jury on self-defense.

Before addressing that cla

claim because, if meritorious, it would moot all of his other claims, including




                                     -9-
J-S07029-14



      Our standard of review is 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 possibility of innocence. Any doubts regarding a
                                                       -finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa. Super. 2011) (citing

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)).



serious bodily injury to another, or causes such injury intentionally,

knowingly    or     recklessly   under     circumstances   manifesting   extreme

indifference to t



death or which causes serious, permanent disfigurement, or protracted loss

or impairment of the function of any b

§



                                         - 10 -
J-S07029-14



material element of an offense when . . . it is his conscious object to engage



§

long as the facts adequately support the conclusion that he or she aided,

agreed to aid, or attempted to aid the principal in planning or committing

the offense, and acted with the intention to promote or facilitate the

             Commonwealth v. Markman, 916 A.2d 586, 597 (Pa. 2007).



beyond a reasonable doubt that he acted with the requisite intent to cause

serious bodily injury, or with the specific intent required of an accomplice,

for aggravated assault purposes.     However, aside from making this bald

assertion, Ledford offers no direct argument based upon the record as it

stands in this case. Instead, Ledford argues that self-

                       see Brief for Ledford at 16, and that his claim of self-

defense defeated the intent elements of aggravated assault or accomplice

liability.

                                                                              -

defense principles, and the application of those principles to the facts

presented at trial.   His sufficiency argument is a thinly-veiled attempt at

                                                          -defense instruction.

That argument, while preserved below and proper in this direct appeal, is

not a proper argument in the context of a sufficiency of the evidence

challenge. Our task simply is to evaluate the evidence of record, including

                                    - 11 -
J-S07029-14



any evidence that is improperly admitted, and determine whether that

evidence was sufficient to enable the jury to find each of the elements of the

crime beyond a reasonable doubt.      See Markman, supra. The trial court

prohibited Ledford from arguing self-defense, and, regardless of the

propriety of that decision, relieved the Commonwealth of the burden of

disproving self-defense beyond a reasonable doubt. Hence, the record that

we must review does not contain a self-defense element, and a sufficiency

challenge is not the proper venue to re-litigate that decision. Thus, we do

not consider whether the evidence demonstrated, as Ledford wishes, that he

acted in self-defense, or whether the Commonwealth disproved such an

assertion.   Rather, we evaluate the record as it stands and determine



specific intent.   Ledford not having presented any proper argument to the



verdict beyond a reasonable doubt.

      We now turn to the issue of whether the trial court erred in denying

                                              -

review when considering the denial of jury instructions is one of deference



                                              Commonwealth v. Baker, 24

A.3d 1006, 1022 (Pa. Super. 2011) (quoting Commonwealth v. Galvin,

985 A.2d 783, 798-

phrasing its instructions, and may choose its own wording so long as the law

                                     - 12 -
J-S07029-14



is clearly, adequately, and accurately presented to the jury for its

                      Id. (quoting Commonwealth v. Prosdocimo, 578 A.2d

1273, 1274 (Pa. 1990)).

        It is well-

upon legal principles [that] have no applicability to the presented facts.

There must be some relationship between the law upon which an instruction

                                                           Commonwealth v.

Buksa, 655 A.2d 579, 583 (Pa. Super. 1995) (quoting Commonwealth v.

Tervalon, 345 A.2d 671, 678

entitled to an instruction on any recognized defense [that] has been

requested [and] has been made an issue in the case, and for which there

exists evidence sufficient for a reasonable jury to find in his or her fa

Id. (internal quotation marks and citations omitted). Regarding a request

for a self-                                     must be given upon request if

there is evidence presented, from any source, that the defendant acted in

self-                 Commonwealth v. Gonzales, 483 A.2d 902, 903 (Pa.

Super. 1984) (citing Commonwealth v. Brown, 421 A.2d 660 (Pa. 1980))

(emphasis added).        Additionally, a defendant who makes such a showing

also is entitled to a charge that the Commonwealth bears the burden of

disproving     self-defense   beyond    a   reasonable   doubt.   Id.   (citing

Commonwealth v. Rittle, 428 A.2d 168 (Pa. Super. 1981)).




                                       - 13 -
J-S07029-14



      In Commonwealth v. Mayfield, 585 A.2d 1069 (Pa. Super. 1991),

we explained at length the respective obligations of both a defendant and

the trial court when a self-defense instruction is requested:

      Before the issue of self-defense may be submitted to a jury for
      consideration, a valid claim of self-defense must be made out as
      a matter of law, and this determination must be made out as a
      matter of law, and this determination must be made by the trial
      judge. Such [a] claim may consist of evidence from whatever

      part of his case,     or  conceivably, may be found in the
                                  in chief or be elicited through cross-
                      Commonwealth v. Rose, 321 A.2d 880, 884
      (Pa. 1974) (similarly discussing the type of evidence necessary
      to place in issue a defense of intoxication). However, such
      evidence from whatever source must speak to three elements for
      a claim of self-
      consideration.

         Thus, as provided by statute and as interpreted through
         our case law, to establish a defense of self-defense it must
         be shown that a) the slayer 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 was in imminent danger of death or great bodily
         harm, and that there was a necessity to use force in order
         to save himself therefrom; and c) the slayer did not violate
         any duty to retreat or to avoid the danger.
         Commonwealth v. Myrick, 360 A.2d 598 (Pa. 1976);
         Commonwealth v. Cropper, 345 A.2d 645 (Pa. 1975).

      Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977). If
      there is any evidence from whatever source that will support
      these three elements then the decision as to whether the claim
      is a valid one is left to the jury and the jury must be
      charged properly thereon by the trial court.

         Our case law makes it crystal clear that the charge of self-
         defense must be given upon request where the jury would
         have a possible basis for finding it. See Black, supra.

         While there is no burden on the defendant to prove a claim
         of self-defense, it is nevertheless required that before such

                                    - 14 -
J-S07029-14


         defense is properly in issue at trial, there must be some
         evidence, from whatever source, to justify such a finding.
         Id. at 630. See Commonwealth v. Walley, 353 A.2d
         396, 398 n.2 (Pa. 1976); Cropper, 345 A.2d at 649.

         Thus, if there was evidence which would have supported
         the claim of self-defense, it was for the trier of fact to pass
         upon that evidence and improper for the trial judge to
         exclude such consideration by refusing the charge.
         Gonzales, supra; Commonwealth v. Lowe, 333 A.2d
         765 (Pa. 1975).

      Commonwealth v. Brown, 421 A.2d 660, 662 (Pa. 1980); in
      accord Commonwealth v. Bailey, 471 A.2d 551 (Pa. Super.
      1984) and Commonwealth v. Maione, 554 A.2d 939 (Pa.
      Super. 1989). This is so even though the evidence of self-
      defense may appear to the tr
      the province of the trier of fact to pass upon the credibility of
      witnesses and the weight to be accorded the evidence
      produced. . . . The fact finder is free to believe all, part, or none
                        Commonwealth v. Rose, 344 A.2d 824, 826
      (Pa. 1975).

Mayfield, 585 A.2d at 1070-71 (emphasis added; citations modified); see

Commonwealth v. Hansley, 24 A.3d 410, 420-21 (Pa. Super. 2011)

(citing Mayfield for the above standards).

      From these well-settled standards, three pertinent principles emerge:

(1) the defendant must present some evidence as to each of the three self-

defense elements from whatever source; (2) the trial court must determine

whether the defendant has made such a showing, but cannot evaluate the

credibility of the evidence or the likelihood of success of the defense, which

are functions reserved exclusively for the jury; and (3) once the defendant

presents evidence from whatever source on each of the three self-defense




                                     - 15 -
J-S07029-14



elements, the trial court does not have discretion to decide whether to

impose the instruction; rather, the court is legally mandated to do so.

       Applying these principles to the instant case, it is clear that Ledford

was entitled to a self-defense instruction.        Ledford first had to adduce

evidence that he was free from fault in provoking the incident which led to

the shooting of Josh Lemin. In his interview with police after the shooting,

which was recorded and played in its entirety for the jury, Ledford admitted

that he and his friends had been using bath salts on the day in question.

While doing so, for whatever reason, the party concluded that Jeremiah

Shoop was going to come and steal their remaining supply of bath salts, by

force if necessary. Notably, Ledford told the police that he received a call

from Shoop, during which Ledford warned Shoop to stay away from his

apartment and to leave them alone. That Ledford received the phone call,

and did not make it, is evidence that Ledford did not provoke the incident

but sought to prevent it.         Shortly thereafter, Shoop and another person




to the police that, when Shoop approached the door, Shoop was taunting

him and requesting that Ledford come outside.3 Ledford believed that Shoop


____________________________________________


3



attempting to draw Ledford out of the apartment.



                                          - 16 -
J-S07029-14



wanted him to come outside either to assault him or to steal the bath salts.

Again, it is critical to our analysis that, according to Ledford, Shoop sought

L

interview with police, Ledford established some evidence that he did not

provoke the incident, and that it was Shoop who instigated and inflamed the

encounter by initiating contact with L

and taunting and encouraging Ledford to confront him.

      Ledford also had to produce evidence that he reasonably believed that

he was in imminent danger of death or serious bodily injury.           In his

interview with police, Ledford explained to the police that he and his cohort

came to fear that Shoop intended to forcibly steal their remaining bath salts.

In response to this fear, Ledford and his friends strapped the door to the

apartment shut with a belt and armed themselves with weapons to stave off




informed Cuff that Shoop had threatened to kill them.      Cuff testified that

they were planning to go to the hardware store to get locks for the door,

because they feared that Shoop was going to come to the apartment. When



door and challenged Ledford to come outside. These averments, heard by

the jury, constituted some evidence that Ledford feared that Shoop

intended to hurt, or kill, Ledford and his friends. Because Shoop allegedly




                                    - 17 -
J-S07029-14



came to the apartment and challenged Ledford, there also was some

evidence to de

      Lastly, Ledford was required to offer evidence that he did not violate a

duty to retreat. In Pennsylvania, a person has no duty to retreat from his

own home unless he was the initial aggressor.            Commonwealth v.

Hornberger, 74 A.3d 279, 283-86 (Pa. Super. 2013). Ledford was in his

own apartment. As noted above, Ledford presented some evidence that he

was not the initial aggressor.    Thus, Ledford also adduced some evidence

that he did not violate his duty to retreat.

      A brief review of the notes of testimony demonstrates that Ledford

presented some evidence, from whatever source, as to each of the three

elements of self-defense. Self-defense fairly was at issue in this case, and



      The trial court held that Ledford did not satisfy the second self-defense

element, that Ledford reasonably believed that he was in imminent danger

of death or serious bodily injury, because, according to the court, there was




16. While this may be true, it misses the point.     Ledford did not have to

demonstrate that unlawful force actually was used against him. He only had

to adduce evidence to demonstrate that he reasonably believed that he

faced the threat of such force. See Mayfield, supra. As we set forth above,

Ledford satisfied this burden.

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J-S07029-14




succeeded at trial.        The record contains evidence that contradicts or

                                                         -defense.   However, our

obligation is not to re-weigh evidence, or evaluate the potential success of



determine

mandate to instruct the jury on self-defense. We conclude that he did. The

jury should have been apprised of the elements and respective burdens

associated with a self-defense claim. The jury was denied that opportunity

in this case.

       Not only did the trial court refuse to instruct the jury on self-defense,

the court also expressly prohibited Ledford from arguing self-defense to the

jury. N.T., 9/25/2012, at 80. Consequently, we cannot conclude that the
                                      4
                                          or that Ledford was not prejudiced by the
____________________________________________


4
      Our Supreme Court has explained the doctrine of harmless error as
follows:

       An error will be deemed harmless where the appellate court
       concludes beyond a reasonable doubt that the error could not
       have contributed to the verdict.      If there is a reasonable
       possibility that the error may have contributed to the verdict, it
       is not harmless. In reaching that conclusion, the reviewing court
       will find an error harmless where the uncontradicted evidence of
       guilt is overwhelming, so that by comparison the error is
       insignificant. The burden of establishing that the error was
       harmless rests upon the Commonwealth.


(Footnote Continued Next Page)


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J-S07029-14




issues are moot.

      Judgment of sentence vacated.                 Case remanded for a new trial.

Jurisdiction relinquished.

      Mundy, J. files a Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




                       _______________________
(Footnote Continued)

Commonwealth v. Mitchell, 839 A.2d 202, 214 15 (Pa. 2003).



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