J-S71026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

MITCHELL LEE ALTMAN,

                          Appellant                 No. 624 WDA 2015


              Appeal from the Judgment of Sentence April 1, 2015
                In the Court of Common Pleas of Clarion County
              Criminal Division at No(s): CP-16-CR-0000298-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED JANUARY 14, 2016

      Appellant, Mitchell Lee Altman, appeals from the judgment of sentence

entered on April 1, 2015, in the Clarion County Court of Common Pleas. We

affirm.

      The trial court set forth the relevant factual background of this matter

as follows:

             The charges in this case arose from an incident that took
      place in Clarion County on June 15, 2014. At that time, Appellant
      and the victim—Andrea Cooper—had recently ended their
      relationship of several years. Andrea Cooper had primary
      physical custody of their two young children. Because June 15
      happened to be Father’s Day, Appellant requested to spend the
      day with the children. Ms. Cooper agreed, stating that she and
      the children would pick up Appellant at his residence and then all
      of them would return to her home to spend the day together.

            At trial, both the victim and Appellant testified that this
      plan broke down once Ms. Cooper arrived at Appellant’s home.
      Instead of entering Ms. Cooper’s vehicle once she arrived,
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     Appellant asked the children to come into the house to see a
     present he had purchased for them. After a brief period inside
     Appellant’s residence, Appellant agreed to return to Ms. Cooper’s
     home to continue the visit. Once Ms. Cooper was outside of the
     residence, however, Appellant immediately closed and locked the
     door behind her, trapping the children inside. Appellant testified
     at trial that it had always been his intention to deceive Ms.
     Cooper in this manner, maintaining that their written custody
     agreement regarding the older child gave him custody on
     Father’s Day. This custody agreement was entered into
     evidence. The agreement did not cover the younger child, who
     was born after the time of the agreement.

           Locked away from her children, Ms. Cooper apparently
     spent the next several minutes to an hour arguing with Appellant
     through the door and attempting to gain entrance to the home.
     During this period there were several heated exchanges, and
     twice Ms. Cooper attempted to gain access to the house through
     an open window, but was pushed back out by Appellant.
     Eventually, the older child became upset and Appellant allowed
     him to leave the home and rejoin his mother.

           Shortly after the older child left the home, one of the
     windows next to the door was broken. Ms. Cooper testified that
     the child had kicked it out in an effort to free his brother.
     Appellant and his girlfriend testified that Ms. Cooper had broken
     the window herself. At this point, Appellant testified that he
     called the police to report the incident. He further testified that
     he handed the phone to Ms. Cooper through the door so that she
     could speak to the police as well. Ms. Cooper accepted the phone
     and spoke with the police.

            At trial, Appellant and Ms. Cooper disputed the details of
     the attack that followed. Ms. Cooper said that Appellant left the
     home in a rage, and made as if to attack their child. She stated
     that when she attempted to intervene, Appellant grabbed her by
     the throat, threw her several times onto a bench and struck her
     in the face with a closed fist. In support of this contention, the
     Commonwealth presented several photographs taken by police
     officers two days later that depicted various bruises to Ms.
     Cooper’s arms and face.

          Appellant and his girlfriend testified that Appellant never
     attempted to attack the child, but instead moved only to restrain

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       Ms. Cooper. Both stated that a struggle ensued between the two
       wherein both parties flailed at one another until Appellant
       successfully restrained Ms. Cooper.

             The stories re-converge several minutes later when all
       parties agree Appellant’s stepfather exited the house and pulled
       Appellant off of Ms. Cooper. Ms. Cooper then left the porch and
       went to her car to await the police, who arrived shortly
       thereafter.

Trial Court Opinion, 5/12/15, at 1-3.

       On February 23, 2015, a jury found Appellant guilty of simple assault,

graded as a misdemeanor of the second degree, and the trial court found

Appellant guilty of the summary offense of harassment.             Following the

verdicts, Appellant made a motion for judgment notwithstanding the

verdicts1 as to both counts, and the trial court denied Appellant’s motion.

N.T., Trial, 2/23/15, at 112.         On April 1, 2015, the trial court sentenced

Appellant to a term of nine to twenty-four months less one day on the

simple assault conviction and imposed a $300.00 fine on the harassment

charge.    Appellant filed a timely appeal, and both Appellant and the trial

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


____________________________________________


1
 We point out that a motion for judgment notwithstanding the verdict is not
available in a criminal case. See Commonwealth v. Blassingale, 581
A.2d 183, 191 (Pa. Super. 1990) (noting that the court procedure of
entering a judgment non obstante veredicto does not extend to criminal
prosecutions).    However, we are satisfied that this was merely a
misstatement in terminology and that it was counsel’s intention to move for
a post-verdict judgment of acquittal pursuant             to   Pa.R.Crim.P.
720(B)(1)(a)(ii).



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       On appeal, Appellant presents the following issue for this Court’s

consideration:

       Did the trial court err in finding that the Commonwealth had
       established sufficient evidence to disprove Appellant’s claims of
       justification?

Appellant’s Brief at 4.

       “In reviewing a claim based upon the sufficiency of the evidence, the

appellate court must view all the evidence in the light most favorable to the

verdict winner, giving that party the benefit of all reasonable inferences to

be drawn therefrom.” Commonwealth v. Torres, 766 A.2d 342, 344 (Pa.

2001) (citation omitted). A person commits simple assault if he “attempts

to cause or intentionally, knowingly, or recklessly causes bodily injury to

another.” Id. (quoting 18 Pa.C.S. § 2701(a)(1)).

       Here, Appellant conceded that his actions, when viewed in the light

most favorable to the Commonwealth, establish the crime of simple assault.

Appellant’s Brief at 15.2      However, as noted above, Appellant asserted that

his actions in this matter were justified. Id.



____________________________________________


2
  Appellant does not mention his harassment conviction in this appeal and
only addresses the conviction for simple assault. Accordingly, any challenge
to his conviction for the summary offense of harassment is waived. See
Commonwealth v. Renchenski, 988 A.2d 699, 703 (Pa. Super. 2010)
(stating that the failure to present any argument, citation, or supporting
legal authority to substantiate a claim renders it waived for purposes of
appeal).



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     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. Torres, 766

A.2d at 344 (citing 18 Pa.C.S. § 505(a)).     “When a defendant raises the

issue of self-defense, the Commonwealth bears the burden to disprove such

a defense beyond a reasonable doubt.”      Id. at 344.    However, while the

Commonwealth must disprove a claim of self-defense, the jury is not

required to believe the testimony of the defendant who raises the claim.

Commonwealth v. Chine, 40 A.3d 1239, 1243 (Pa. Super. 2012) (citation

omitted).

     The trial court addressed Appellant’s justification claim as follows:

           In the present case, Appellant presented evidence that he
     reasonably believed that the force he employed against victim
     was necessary to prevent harm to himself and the others in the
     home. Accordingly, the Commonwealth bore the burden of
     proving beyond a reasonable doubt that either Appellant did not
     believe that his use of force was necessary, or that such belief
     was unreasonable. Com. v. Houser, 18 A.3d 1128, 1135 (Pa.
     2011); 18 Pa.C.S.A. § 505.

           The Commonwealth presented evidence from which a jury
     could infer that Appellant did not actually believe that the force
     used was necessary to protect himself or others. The Appellant
     in this case admitted on the stand that he allowed one of his
     children to go out to be with Ms. Cooper and that he had handed
     her his phone through the door without any apparent concern for
     his safety only minutes before the attack. These actions clearly
     belie any claim that [Appellant] believed himself to be in danger,
     and a jury could well have found [Appellant] guilty beyond a
     reasonable doubt on these grounds.

           Further, the Commonwealth presented evidence that any
     belief Appellant had in the necessity of using force was

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      unreasonable. At the point Appellant chose to attack Ms. Cooper
      the incident had been occurring steadily for approximately an
      hour without apparent escalation. Further, he had already called
      the police to respond to the situation and had no reason to
      believe that the situation would turn violent in the time it took
      for them to arrive.

            Finally, the Commonwealth presented evidence that, even
      if some use of force would have been justifiable, [Appellant’s]
      attack was more severe than was reasonably warranted. See
      Com. v. Witherspoon, 730 A.2d 496, 499 (Pa. Super. Ct. 1999)
      (“This case involves a mere battery, and in such cases, force
      may be met with force so long as it is only force enough to repel
      the attack.”) [(citation omitted)]. Ms. Cooper testified that
      Appellant violently attacked her, choking her, throwing her to
      the ground, and striking her in the face. If the jury chose to
      credit this testimony over that of Appellant—as the court must
      assume it did in ruling on a motion for [judgment of acquittal]—
      they could reasonably have found that Appellant’s force was far
      more severe than he could have reasonably believed necessary
      to subdue Ms. Cooper.

Trial Court Opinion, 5/12/15, at 4-5.

      We agree with the trial court’s conclusion. Although Appellant avers

that he was justified in his attack on Ms. Cooper, the Commonwealth

presented evidence that disproved Appellant’s claim. Moreover, we reiterate

that despite Appellant’s assertion of justification, the jury was not required

to believe Appellant’s testimony. Chine, 40 A.3d at 1243.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2016




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