J-A22034-18

                                  2018 PA Super 327



    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    JAMES MAURICE CANNAVO, JR.,

                             Appellant                  No. 3729 EDA 2017


          Appeal from the Judgment of Sentence Entered June 22, 2017
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-51-CR-0004483-2015


BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

CONCURRING OPINION BY BENDER, P.J.E.:                 FILED DECEMBER 3, 2018

        I agree with the Majority that Appellant was not entitled to a castle-

doctrine jury instruction because he was engaged in criminal activity when he

shot the victim.     See 18 Pa.C.S. § 505(b)(2.2)(iii).    I write separately to

express my disagreement with the Majority’s primary conclusion that

Appellant was not entitled to the castle-doctrine jury instruction as a matter

of law due to lack of evidence establishing the condition set forth in Subsection

2.1(i).    To the contrary, I believe Appellant’s own testimony provided a

sufficient factual basis to issue the instruction pursuant to that provision.

        It is undisputed that Appellant possessed a subjective belief that an

unlawful and forceful entry was occurring. See Majority Opinion at 8. Thus,

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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the only remaining issue with regard to Subsection 2.1 was whether there was

evidence that the “person against whom the force is used is in the process of

unlawfully and forcefully entering … a dwelling, residence or occupied

vehicle[.]” 18 Pa.C.S. § 505(2.1)(i). The Majority agrees with the trial court

that “there was no evidence presented indicating … the victim was in the

process of unlawfully and forcefully entering the carriage house.” Majority

Opinion at 8-9. The record belies this conclusion.

      As the Majority concedes, there need only be “some evidence, from

whatever source,” to justify the castle-doctrine instruction. Id. at 8 (quoting

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001)). However, in

rejecting the instruction, the trial court simply disregarded Appellant’s

testimony when it stated that the “only ‘evidence’ that the victim was

attempting to break into the carriage house is [Appellant]’s uncorroborated

testimony of his subjective belief that the victim was attempting to break in,

which is contradicted by the physical evidence at the scene.”      Trial Court

Opinion, 12/19/17, at 6. There is much to unpack from this statement.

      First, there is no requirement set forth in the text of the statute that

evidence offered to satisfy Subsection 2.1(i) must be ‘corroborated.’ Any such

rule would appear absurd in light of the fact that the uncorroborated testimony

of a solitary witness is sufficient to secure a conviction under the beyond-a-

reasonable-doubt standard.    See Commonwealth. v. Johnson, 180 A.3d

474, 481 (Pa. Super. 2018) (holding that “the uncorroborated testimony of a

single witness is sufficient to sustain a conviction for a criminal offense, so

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long as that testimony can address and, in fact, addresses, every element of

the charged crime.”).       Under the some-evidence-from-whatever-source

standard, applicable here, Appellant’s own testimony must be sufficient to

invoke the castle-doctrine instruction, so long as that testimony satisfies, or

potentially satisfies, the statutory elements set forth in Subsections 2.1(i) and

2.1(ii).   Nevertheless, other evidence in this case corroborated Appellant’s

testimony as to relevant facts pertinent to Subsection 2.1(i), at least in part,

as discussed below.

      Second, Appellant did not merely testify as to his subjective belief.

Although Appellant testified that he thought the victim and his cohorts were

breaking into the carriage house, he also offered several factual observations

that promoted that belief. The pertinent portion of Appellant’s testimony is as

follows:

      When I was awoken, I saw a group of people pounding on my
      door. I yelled who is it? Who is it? They kept pounding. And
      then I actually saw one of them shoulder my door with their
      shoulder and then one of them ran into my door and dropped
      kicked it. At that point, I realized people were breaking in.

N.T. Trial, 3/24/17, at 149-50.

      Only the final sentence of the above testimony constitutes Appellant’s

subjective belief. Otherwise, the preceding sentences detail Appellant’s direct

observations, not his subjective conclusions about those observations. The

jury was free to reject his version of events, but the trial court was not.

Testimony that people escalated from pounding on a door, to shouldering and

kicking that door, while refusing to answer the pleas from the occupant,

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certainly constitutes at least “some evidence, from whatever source,” Torres,

supra, that those people were “in the process of unlawfully and forcefully

entering” Appellant’s home, 18 Pa.C.S. § 505(2.1)(i). Shockingly, neither the

Majority nor the trial court mention this testimony in their respective opinions.

      The trial court spends much of its opinion explaining how this gang of

8-10 inebriated persons failed to corroborate Appellant’s version of events,

which, as noted above, is irrelevant to the applicable standard here, as

Appellant’s testimony needed no corroboration to invoke the castle-doctrine

instruction. Nevertheless, their testimony did corroborate Appellant’s version

but for two critical facts: the shouldering and kicking of the door. While these

facts are essential to establishing that the drunken gang outside of Appellant’s

door was attempting to unlawfully gain entry therein (whereas that element

is not met if they had only knocked loudly), those facts require no

corroboration under the applicable standard.        Appellant’s testimony was

enough.

      Third, contrary to the court’s conclusion that the physical evidence

contradicted Appellant’s version of events, the trial court simply disregarded

corroborative physical evidence. The court indicates that a boot print was

found on the door at issue.      TCO at 6. Inexplicably, the trial court then

dismisses this evidence, which corroborates Appellant’s claim that the door

was kicked, because a locksmith testified that he “was unable to definitively

link any damage to the door, including what appears to be a boot print, to the

incident that caused the shooting.” Id. (emphasis added). Whether the boot

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print was “definitively” linked to the incident is irrelevant unless the trial court

was assessing the weight or credibility of that evidence, which it could not do

under the some-evidence-from-whatever-source standard.

      In sum, I believe the trial court’s refusal to issue a castle-doctrine

instruction on the specific basis that Appellant had failed to offer evidence of

the   condition   set   forth   in   Subsection 2.1(i)   was clearly erroneous.

Nevertheless, because I agree with the Majority that Appellant’s illegal

possession of a firearm at the time of the shooting precluded him from

invoking the castle-doctrine instruction under Subsection 2.2(iii), I concur in

the result reached by the Majority’s opinion.




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