J-S68030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                             Appellee

                        v.

SCHOFIELD FISHER

                             Appellant             No. 390 EDA 2014


            Appeal from the Judgment of Sentence January 17, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002453-2011


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                     FILED DECEMBER 19, 2014

        Appellant, Schofield Fisher, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

bench trial convictions for aggravated assault,1 simple assault,2 recklessly

endangering another person (“REAP”),3 and possession of an instrument of

crime.4 We affirm.




____________________________________________


1
    18 P.S. § 2702(a).
2
    18 P.S. § 2701(a).
3
    18 P.S. § 2705.
4
    18 P.S. § 907(a).
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       On August 27, 2013, the trial court conducted a bench trial.              The

victim Norman Gordon, Police Officers Edgar Ruth and Christina Mellett, and

Appellant testified.

       Mr. Gordon testified that he was the resident superintendent of a

rooming house in Philadelphia.          N.T., 8/27/2013, at 12.    Appellant often

visited Cheryl Stamp, who resided at the rooming house.            Id., at 15.   On

February 12, 2011,5 Mr. Gordon heard the front door open and observed

Appellant enter. Id., at 14. Mr. Gordon asked Appellant how he obtained

access to the house. Id., at 14-15. Appellant proceeded upstairs without

answering. Id. As he was preparing to take his trash out to the curb, Mr.

Gordon observed Appellant coming down the steps. Id., at 15. Mr. Gordon

again inquired as to how Appellant gained access to the house, and

Appellant informed Mr. Gordon he used a key.               Id.    Mr. Gordon told

Appellant only residents should possess keys and asked whether Appellant

had left the key with Ms. Storm. Id., at 16-17. Appellant said he had. Id.,

at 17. Mr. Gordon, who was unarmed, then opened the door and escorted

Appellant to the front door.        Id., at 17, 60.   Appellant grazed Mr. Gordon

and made a motion under his coat, stabbing Mr. Gordon in the inner thigh.


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5
  At trial, the prosecutor and the witnesses sometimes stated the incident
occurred on February 21, 2011 and the 1925(a) opinion references February
21, 2011. See, e.g., N.T., 8/27/2013, at 12; 1925(a) Opinion, 3/26/2014,
at 3. The incident, however, occurred on February 12, 2011. E.g., Criminal
Complaint, 2/13/2011.



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Id., at 17. Mr. Gordon observed that his pant leg was slashed and tried to

run after Appellant.    N.T., 8/27/2013, at 18-19. After he “felt a warm

sensation” in his leg, he returned home and discovered that he was

bleeding. Id., at 19.

      Officer Edgar Ruth testified that he responded to the call at the

rooming house and found Mr. Gordon “bleeding heavily from his right leg.”

N.T., 8/27/2014, at 65.       He used a belt from Mr. Gordon’s closet as a

tourniquet. Id.

      Officer   Christina   Mellett   testified   that   she   drove   around   the

neighborhood with Ms. Stamp searching for Appellant. N.T., 8/27/2014, at

71.   Officer Mellett found Appellant at a nearby transportation hub and

arrested him. Id., at 72-73. She recovered a folding pocket knife/boxcutter

with blood on the blade from Appellant’s jacket pocket. Id., at 74.

      Appellant testified. Appellant stated he visited Ms. Storm on February

12, 2011 to return her keys, and encountered Mr. Gordon as he came

downstairs from Ms. Storm’s room. N.T., 8/27/2014, at 84, 81. He claimed

that he told Mr. Gordon he returned the keys, proceeded to walk out of the

building, turned around because he “felt weird,” and saw Mr. Gordon

“coming at me with – it looked like a billy club or a piece of a bat.” Id., at

81.   Appellant then pulled the knife from his pocket, opened it, and said:

“Yo, why don’t you slow down, let me go out.” Id. Appellant testified that

Mr. Gordon proceeded to slide in front of Appellant “like he was going to

block [Appellant’s] passage from going out.” Id. Mr. Gordon raised the club

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and Appellant stabbed Mr. Gordon in the leg.       Id., at 87.   Appellant also

testified that he previously heard Mr. Gordon state: “I already done slumped

me somebody before. I ain’t got no problem doing it again.”         Id., at 83.

Appellant believed Mr. Gordon meant he previously killed someone and did

not have a problem doing it again or was aggressive and had no problem

hurting somebody. Id.

        On August 27, 2013, the trial court found Appellant guilty of

aggravated assault,6 simple assault, REAP, and possession of an instrument

of crime. On January 17, 2014, the trial court sentenced Appellant to 26 to

52 months’ imprisonment followed by 4 years’ probation for aggravated

assault, a concurrent sentence of 4 years’ probation for possession of an

instrument of crime, and a concurrent sentence of two years’ probation for

REAP.     The simple assault conviction merged with aggravated assault for

sentencing purposes.

        On January 31, 2014, Appellant filed a timely appeal. Appellant filed a

timely statement of errors complained of on appeal and a request for an

extension of time to file a supplemental statement of errors within 21 days.

On March 5, 2014, the court granted the extension, requiring Appellant to

file his supplemental statement within 21 days, or by March 26, 2014. On


____________________________________________


6
 Appellant was charged with aggravated assault, a felony in the first degree,
but the court found him guilty of aggravated assault, a felony in the second
degree. See Information, 3/11/2011; Order of Sentence, 1/17/2014.



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March 25, 2014, Appellant filed the statement. On March 26, 2014, the trial

court issued its 1925(a) opinion. It addressed only the claim raised in the

original 1925(b) statement, i.e., whether there was sufficient evidence to

prove aggravated assault, simple assault, possession of an instrument of

crime or REAP beyond a reasonable doubt. 1925(a) Opinion, 3/25/2014, at

2.   The court stated Appellant did not file a supplemental statement.   Id.

Because Appellant timely filed the supplemental statement, we will address

the two issues raised therein, which he also raises on appeal:

         1. Was not the evidence insufficient to sustain the verdict
            of guilt on the charges of aggravated assault, a felony
            of the second degree, simple assault and recklessly
            endangering another person, as the Commonwealth
            failed to disprove that [A]ppellant acted in self-defense
            beyond a reasonable doubt?

         2. Was not the evidence insufficient to sustain the verdict
            of guilt on the charge of possessing an instrument of
            crime where the only evidence of intent to employ the
            weapon criminally was its use in justifiable self-
            defense?

Appellant’s Brief at 3; see Supplemental Statement of Errors Complained of

on Appeal, at ¶8a-b. Both claims maintain there was insufficient evidence

because Appellant acted in justifiable self-defense.

      We apply the following standard when reviewing sufficiency of the

evidence claims: “[W]hether 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.”     Commonwealth v. Lehman, 820 A.2d 766, 772


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(Pa.Super.2003),     affirmed,    870     A.2d    818     (Pa.2005)       (quoting

Commonwealth v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we

apply this standard, “we may not weigh the evidence and substitute our

judgment for the fact-finder.” Id.

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”       Id.    Moreover, “[a]ny

doubts regarding a defendant’s guilt may be resolved by the fact-finder

unless the evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances.”            Id.

“The Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” DiStefano, 782 A.2d at 582.

      In applying the above test, we must evaluate the entire record and we

must consider all evidence actually received. Id. Further, “the trier 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.” Id.

      Appellant does not dispute that he stabbed Mr. Gordon.          Rather, he

maintains he acted in self-defense. See, e.g., Appellant’s Brief at 14. “If a

defendant introduces evidence of self-defense, the Commonwealth bears the

burden of disproving the self-defense claim beyond a reasonable doubt.”

Commonwealth       v.   Houser,      18   A.3d   1128,   1135    (2011)    (citing

Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa.2009)). A fact-finder,

however, “is not required to believe the testimony of the defendant who

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raises the claim.” Id. (citing Commonwealth v. Carbone, 574 A.2d 584,

589 (Pa.1990)).

       The prosecution and defense presented different versions of the

incident. Mr. Gordon testified that he was unarmed and that, as he escorted

Appellant to the door, Appellant stabbed him in the leg. Appellant claimed

Mr. Gordon had a “billy club” and Mr. Gordon had previously stated he

“slumped” someone. The trial court credited Mr. Gordon’s version of events,

as it was free to do.7 See Commonwealth v. Houser, 18 A.3d at 1128.

       Viewing    all   the   evidence     in   the   light   most   favorable   to   the

Commonwealth as verdict winner, sufficient evidence existed to enable the

fact-finder to find every element of the crimes, including that Appellant did

not act in self-defense, beyond a reasonable doubt.8

       Judgment of Sentence affirmed.

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7
   In fact, the court found Appellant was not a credible witness. Opinion,
3/26/2014, at 4.         We must defer to this determination.          See
Commonwealth v. O’Bryon, 820 A.2d 1287, 1290 (Pa.Super.2003)
(“appellate courts must defer to the credibility determinations of the trial
court as fact finder, as the trial judge observes the witnesses’ demeanor
first-hand.”)
8
  The Commonwealth maintains Appellant failed to present evidence of a
self-defense claim because he conceded Mr. Gordon did not strike him or
swing the club, Appellant suffered no injuries, and Appellant did not call for
assistance. Appellant’s Brief at 11. Further, it claims Appellant cannot state
a self-defense claim because he failed to retreat. Id., at 11-12. We will
assume, without deciding the issue, that Appellant’s testimony, including his
claim that Mr. Gordon raised the club, was sufficient to raise a self-defense
claim.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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