J-S90004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    KEVYN THOMAS                               :
                                               :
                      Appellant                :    No. 2618 EDA 2015

              Appeal from the Judgment of Sentence July 21, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014836-2012



BEFORE: OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.:                                FILED FEBRUARY 24, 2017

       Kevyn Thomas appeals from the judgment of sentence imposed July

21, 2015, in the Philadelphia County Court of Common Pleas. The trial court

sentenced     Thomas      to   an   aggregate      term   of   11½   to   23   months’

imprisonment, followed by five years’ probation, after the court, sitting

without a jury, found him guilty of, inter alia, aggravated assault and

conspiracy.1 On appeal, Thomas challenges the sufficiency and weight of the

____________________________________________


1
  See 18 Pa.C.S. §§ 2702(a) and 903, respectively. Thomas’s co-defendant,
Rafphique Gerald, raises identical issues in his appeal docketed at 2621 EDA
2015. Although the co-defendants were represented by separate counsel at
trial, they are represented by the same attorney on appeal, and have filed a
consolidated brief. Nevertheless, for ease of analysis, we have decided to
address the appeals separately.
J-S90004-16




evidence supporting his convictions.    Specifically, he asserts his claim of

(imperfect) defense of property negated the intent requirement for his

convictions. For the reasons that follow, we affirm.

      The facts underlying Thomas’s arrest and conviction are aptly

summarized by the trial court as follows:

      On November 29, 2012, Michael Yarnell, an employee of Jamison
      Towing (who tows abandoned vehicles for the City of
      Philadelphia) was dispatched to the area of 38th Street and
      Girard Avenue. When he arrived, he found the 1998 Ford
      Expedition listed on his paperwork for towing.         Mr. Yarnell
      compared the abandonment and tow report he had received
      from Jamison to the vehicle he was sent to tow. It was a match
      so he loaded it onto the bed of the truck. Mr. Yarnell proceeded
      to the second location on his paperwork to retrieve a Chevy van
      at or near the 4200 block of Viola Street. Once the van was
      hooked up to the truck[,] Mr. Yarnell drove to an area near the
      40th Street Bridge to put his towing lights on the van and to take
      pictures of both of the vehicles as required by his employer. As
      he was finishing taking pictures, a blue Buick pulled up behind
      the tow truck from Girard Avenue; two men got out of the Buick
      and started yelling and screaming “Get my fucking car down.”
      Mr. Yarnell identified both [Thomas] and the co-defendant, []
      Gerald, as the two men in the blue Buick. Mr. Yarnell was
      approximately 50 feet from the two men.

            The men were walking vigorously toward him and Mr.
      Yarnell tried to call the police and his office to no avail. Mr.
      Yarnell told the men that he had paperwork for the vehicles and
      he was going to get the paperwork from inside the truck. He
      also said he would use his 2-way radio to call headquarters. Mr.
      Yarnell [made] it inside his truck but was not able to use the
      radio because [Thomas] said, “You’re not calling fucking
      anybody.” [Thomas] then grabbed Mr. Yarnell by his neck
      (squeezing his neck as he reached around) and shut the truck off
      which disconnected the radio. [Thomas] had Mr. Yarnell in a
      chokehold as co-defendant Gerald started dragging him out of
      the tow truck by his testicles. Mr. Yarnell was unable to breathe

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     as [Thomas] was squeezing his throat. As [Thomas] and co-
     defendant Gerald were dragging him out of his truck toward the
     side of the bridge behind the tow truck, Mr. Yarnell heard one of
     the men say, “Let’s murd (sic) this mother fucker” and another
     voice said, “Let’s throw the mother fucker off the bridge.” As he
     is on the ground being [dragged] nearer to the edge of the
     bridge, Mr. Yarnell couldn’t breathe and went limp. [Thomas]
     continued squeezing his neck when co-defendant Gerald let go
     and began kicking Mr. Yarnell several times around his legs, his
     front mid-section, and back. The incident was over when a car
     pulled up and a man who identified himself as an off-duty
     University of Pennsylvania police officer stopped and drew his
     weapon. [Thomas] still had him in a chokehold when the [off-
     duty officer’s] car stopped. Other police officers eventually
     appeared.

            Mr. Yarnell testified that he was treated at Mercy Suburban
     as a result. He was diagnosed with bulging discs in his neck and
     had to receive shots to relieve the swelling. Mr. Yarnell had no
     injuries prior to this incident and missed approximately three
     weeks of work as a result.

            University of Pennsylvania Police Officer Eugene Joynes
     testified that he was on his way home from work when he turned
     [n]orth onto 40th Street and observed [Thomas] grabbing the
     neck of a white man (Mr. Yarnell) over by the curb. He also
     observed co-defendant Gerald kick the male at least once in his
     torso area. Officer Joynes pulled over, exited his vehicle, drew
     his weapon and identified himself as a police officer. Officer
     Joynes told [Thomas] to release the man and co-defendant
     Gerald said, “This man stole our car.” Mr. Yarnell didn’t say
     anything. Officer Joynes tried to call 911 from his cell phone but
     was unable to get through.         One of the defendants was
     eventually able to get through to police. Officer Joynes stated
     that Mr. Yarnell had paperwork for both of the vehicles on the
     tow truck.

           Philadelphia Police Officer Todd Matthews testified that he
     responded to a radio call to the area of the 900 block of North
     40th Street. Officer Matthews identified both [Thomas] and co-
     defendant Gerald. He recovered Mr. Yarnell’s camera from one
     of the defendants.


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           The Commonwealth and [Thomas] stipulated that Mr.
     Yarnell was seen at Mercy Suburban on November 30, 2012 and
     was diagnosed with chest wall contusion and [a] contusion on his
     back.

          [Thomas] did not testify or present additional evidence.

            Co-defendant Gerald testified after a stipulation between
     the Commonwealth and defense counsel that co-defendant
     Gerald has a reputation as a law-abiding, non-violent, peaceful
     individual.

            Co-defendant Gerald testified that he left his house [on]
     W. Girard Avenue at about 2:45 p.m. to pick up his son at school
     on Girard Avenue; school is over at 3:00 p.m. He looked for his
     Expedition which was not where he left it. He stated that he
     drives the vehicle every day and parks it in the same location
     every day. He was flailing his arms while looking for the vehicle
     and saw a friend (later identified as Rob) who is a tow truck
     driver. Based on what Rob told him (that someone took the car;
     he didn’t know the person so it was not a City person), he and
     [Thomas] went to look for the vehicle. [Thomas] told him to get
     in his car because he thought he knew where the Expedition was
     because he saw it on a bridge, on the 40th Street Bridge. Co-
     defendant Gerald got into the car and he and [Thomas] drove
     over to the 40th Street Bridge. [Thomas] pulled up behind the
     tow truck that had his car and a van on it. Co-defendant Gerald
     exited the vehicle first. He said, “What the fuck are you doing?”
     and the driver said, “What do you mean?”           To which co-
     defendant Gerald replied that his car was licensed, registered,
     insured, that there was no reason for it to be on a flatbed. He
     also requested the driver to show him the paperwork justifying
     him taking his car. Co-defendant Gerald stated that he was not
     irate, but was not pleased. The tow truck driver said he would
     show him the paperwork but co-defendant Gerald said “No, let
     me get my paperwork.” He also testified that Mr. Yarnell said he
     wouldn’t let the car down from the tow truck. According to co-
     defendant Gerald, the car was lowered and he was able to get
     into the glove box. While he was retrieving his paperwork, it
     appeared to him that Mr. Yarnell was getting something from
     underneath the seat of the tow truck; he couldn’t tell what it
     was, thought it may have been black. Co-defendant Gerald

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       stated that he feared for his safety (he thought Mr. Yarnell was
       going to shoot him or steal his car) so he walked up to the tow
       truck and can’t remember what happened next. Co-defendant
       Gerald testified that he did not remember kicking Mr. Yarnell.
       He remembered that [Thomas] was standing up and that he
       never left his vehicle.    On cross-examination, co-defendant
       Gerald was adamant that [Thomas] did not choke Mr. Yarnell.

Trial Court Opinion, 12/31/2015, at 2-5 (record citations omitted).

       Thomas and Gerald were arrested and charged with aggravated

assault, robbery, conspiracy, theft, receiving stolen property (“RSP”),

terroristic threats, simple assault, and recklessly endangering another

person (“REAP”).2 The cases were consolidated for a non-jury trial, and, on

January 23, 2015, the trial court found both Thomas and Gerald guilty of all

charges, except robbery.          On July 21, 2015, the trial court sentenced

Thomas to a term of 11½ to 23 months’ imprisonment, with immediate

parole to house arrest, followed by five years’ probation on the charge of

aggravated assault; an identical sentence, to be served concurrently, on the

charge of conspiracy; and a concurrent term of two years’ probation on the

charge of theft. The court determined the remaining charges either merged

for sentencing purposes or warranted no further punishment.       This timely

appeal follows.3
____________________________________________


2
  See 18 Pa.C.S. §§ 2702(a), 3701(a)(1)(ii), 903, 3921(a), 3925(a),
2706(a)(1), 2701(a), and 2705, respectively.
3
  On October 8, 2015, the trial court ordered Thomas to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)


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      In his first issue, Thomas argues the Commonwealth did not prove he

acted with the requisite intent to support his conviction of aggravated

assault. Specifically, he contends the Commonwealth failed to disprove his

claim of imperfect defense of property. See Thomas/Gerald Brief at 17-19.

      Our review of a challenge to the sufficiency of the evidence is well-

settled:

      [W]e consider whether the evidence presented at trial, and all
      reasonable inferences drawn therefrom, viewed in a light most
      favorable to the Commonwealth as the verdict winner, support
      the [fact finder’s] beyond a reasonable doubt. Commonwealth
      v. Murray, [623] Pa. [506], 83 A.3d 137, 150–51 (2013).
      Whether sufficient evidence exists to support the verdict is a
      question of law; thus, our standard of review is de novo and our
      scope of review is plenary. Id. at 151.

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014), cert. denied,

135 S.Ct. 1400 (U.S. 2015).

      To secure a conviction of aggravated assault, the Commonwealth must

establish, beyond a reasonable doubt, that the defendant “attempt[ed] to

cause serious bodily injury to another, or cause[d] such injury intentionally,

knowingly     or   recklessly       under        circumstances   manifesting   extreme

                       _______________________
(Footnote Continued)

Thomas complied with the court’s directive, and filed a concise statement on
October 29, 2015. We note that while Thomas and Gerald raised the same
claims in their respective concise statements, the trial court filed separate
opinions for each co-defendant.




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indifference to the value of human life[.]” 18 Pa.C.S. § 2702(a)(1). Proof of

a defendant’s mere reckless behavior is insufficient; rather, the recklessness

required for an aggravated assault conviction is “equivalent to that which

seeks to cause injury.” Commonwealth v. O'Hanlon, 653 A.2d 616, 618

(Pa. 1995).      Indeed, “[t]he corresponding mens rea for this standard is

“malice[.]” Commonwealth v. McHale, 858 A.2d 1209, 1212 (Pa. Super.

2004). See also Commonwealth v. Kling, 731 A.2d 145, 147 (Pa. Super.

1999) (“There is no distinction between the malice essential to third degree

murder and that necessary for aggravated assault.”), appeal denied, 745

A.2d 1219 (Pa. 1999).

        Preliminarily, we note that to the extent Thomas argues the evidence

was insufficient to demonstrate he acted with malice when he attacked

Yarnell,4 irrespective of his defense of property claim, we find this argument

has been waived because it was not included in his court-ordered Rule

1925(b) statement.          See Pa.R.A.P. 1925(b)(4)(vii).    Thomas’s concise

statement listed nine issues, the first of which questioned whether “defense

of property (even if imperfect) negates the malice necessary for an

aggravated assault conviction.”          Statement of Matters Complained of on

Appeal Pursuant to Pa.R.A.P. Rule 1925(b), 10/29/2015, at 1.          Issues 2
____________________________________________


4
    See Thomas/Gerald Brief at 15-17.




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through 7 raised the identical claim with respect to the intent element of

Thomas’s remaining convictions.          See id. at 1-2.   Issues 8 and 9 read as

follows:

       8. Whether defendant’s defense of property is sufficient to
       negate the offenses of aggravated assault and related
       convictions under the circumstances in the record as a matter of
       law?

       9. Whether the evidence or the weight of the evidence along
       with defendant’s character was sufficient to find petitioner guilty
       of aggravated assault and the related offenses?

Id. at 2.

       Therefore, in his concise statement, Thomas’s challenge to the intent

element of his aggravated assault conviction is tied to his (imperfect)

defense of property.       The argument in his brief that his “conduct was not

remotely egregious enough” to demonstrate malice is, accordingly, waived. 5

Thomas/Gerald Brief at 17.

       Thomas also contends that his mistaken, but reasonable, belief that

Yarnell had stolen his car negated the intent element of the crime of

aggravated assault. See id. at 17-19. He claims his intent “was at all times


____________________________________________


5
  We also note that because Thomas did not include this claim in his concise
statement, the trial court did not address it in its opinion. Nevertheless,
even if the issue was not waived, we would conclude the evidence presented
by the Commonwealth was sufficient to establish Thomas and Gerald acted
with malice when they assaulted Yarnell.




                                           -8-
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to prevent [Yarnell] from having the continued possession of his vehicle

which he thought was illegally moved or stolen[,]” and the Commonwealth

“never rebutted the reasonableness of that assertion but instead focused on

just the actions of” Thomas and Gerald. Id. at 18. Further, he argues that

once he presented evidence of this mistake of fact, the Commonwealth was

required to either prove “the absence of a bona fide, reasonable mistake, or

that the mistake alleged would not have negated the intent necessary to

prove the crime charged.” Id. at 19.

      Pursuant to Section 507 of the Crimes Code, a person may use force

to protect or defend his property under the following relevant conditions:

      (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 … the unlawful carrying away
         of tangible movable property, if such … 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; or

         (2) … to retake tangible movable property, if:

            (i) the actor believes that he or the person by whose
            authority he acts … was unlawfully dispossessed of
            such … movable property and is entitled to
            possession; and

            (ii) (A) the force is used immediately or on fresh
            pursuit after such dispossession; or

               (B) the actor believes that the person against
               whom he uses force has no claim of right to
               the possession of the property and, in the

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               case of land, the circumstances, as the actor
               believes them to be, are of such urgency that
               it would be an exceptional hardship to
               postpone the entry or reentry until a court
               order is obtained.

                                    ***

     (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(a), (c).

     Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we find the trial court thoroughly addressed and

properly disposed of this claim in its opinion.     See Trial Court Opinion,

12/31/2015, at 8-10 (finding Thomas’s use of force was not justified under

Section 507 because (1) the only evidence supporting the co-defendants’

mistaken belief that the car was stolen was Gerald’s own testimony; (2) the

force used to retake the property was not used “immediately or in fresh

pursuit” of the purported theft, but occurred at least 45 minutes later; (3)

“there was no urgency” that would result in “exceptional hardship” to justify


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the use of force, since the co-defendants could have called the police; and

(4) the co-defendants did not give Yarnell the opportunity to “desist from his

alleged interference,” but rather attacked him as he attempted to provide

the paperwork for the tow).    Id. at 10.    Accordingly, we rest on its well-

reasoned basis.

      Next, Thomas similarly contends his (imperfect) defense of property

was sufficient to negate the intent elements of his remaining convictions –

simple assault, REAP, theft, RSP, conspiracy, and terroristic threats.    See

Thomas/Gerald Brief at 20-24. He summarizes:

            The evidence in this case, even when viewed in the
      Commonwealth’s favor, cannot establish that [Thomas and
      Gerald] are guilty of the crimes as alleged when considering
      their defense of justification.     Even the Commonwealth’s
      evidence establishes that one of [them] called the police; [they]
      did not use any weapons or excessive force; [they] stopped the
      aggressive interaction against [Yarnell] right after the police
      arrived; [] Gerald’s car was taken; no note or reason was left
      indicating why the car was taken; [Gerald’s] car was registered;
      and upon finding the vehicle Appellant Gerald (who has a
      reputation as law abiding and non-violent) immediately sought a
      reason for [Yarnell] having his vehicle – vulgar language
      notwithstanding. Therefore, neither [Thomas’s nor Gerald’s]
      actions as established amount to the necessary elements to
      convict on any of the offenses[.]

Thomas/Gerald Brief at 24.

      Again, we conclude the trial court sufficiently detailed the evidence

supporting Thomas’s convictions. See Trial Court Opinion, 12/31/2015, at

10-16 (finding evidence sufficient to support convictions of simple assault,



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REAP, theft, conspiracy, and terroristic threats when co-defendants (1)

initiated confrontation, (2) acted “in tandem”6 when they assaulted Yarnell,

(3) threatened to throw him off the bridge; (4) continued to assault him

until ordered to release him by police officer pointing a gun, and (5)

removed a camera from Yarnell’s pocket during the assault). Furthermore,

with regard to Thomas’s claim that his actions were justified under the

defense of property statute, the court opined:

        [T]he evidence produced by the Commonwealth overwhelmingly
        supports the court’s conclusion that the Commonwealth met its
        burden [of disproving Thomas was acting in defense of
        property]. First, [Thomas] and co-defendant Gerald were the
        initial aggressors in that they hunted down the tow truck and the
        operator. Second, the evidence found credible by this court
        established that [Thomas] attacked Mr. Yarnell, without a
        previous attack or threat to either defendant, when Mr. Yarnell
        attempted to retrieve his paperwork.        Third, Officer Joynes
        observed [Thomas] with his hands around Mr. Yarnell’s neck and
        co-defendant Gerald kicking Mr. Yarnell’s body. Finally, there is
        not a scintilla of evidence that it was “immediately necessary”
        to use force to retrieve this vehicle. Mr. Yarnell had paperwork
        evidencing his company’s directive and his belief that he was to
        tow that vehicle. See Commonwealth v. Emler, 903 A.2d 1273
        (Pa. Super. 2006); 18 Pa.C.S.A. § 507. Therefore, the court was
        correct in determining that [Thomas’s] defense-of-property
        argument is wholly and utterly without merit[.]

Trial Court Opinion, 12/31/2015, at 15 (emphasis in original).

        We find no reason to disagree. Thomas’s argument relies on his own

interpretation of the evidence.          While it is true that neither of the co-
____________________________________________


6
    Trial Court Opinion, 12/31/2015, at 14.



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defendants used a weapon during the attack, Thomas put Yarnell in a

chokehold to the point that Yarnell “went limp” and “couldn’t breath[.]”

N.T., 1/23/2015, at 26. Meanwhile, co-defendant Gerald, dragged Yarnell by

his testicles from the tow truck, and proceeded to kick him in his legs,

stomach and back, while one of the co-defendants suggested they “throw

the mother fucker off the bridge.”     Id. at 25-26, 27.    Moreover, the co-

defendants did not stop the assault until after Officer Joynes pointed a gun

at them and directed them to stop. Id. at 29. Further, although Gerald did

initially ask Yarnell why he had his vehicle, neither he nor Thomas waited

until Yarnell produced paperwork for the tow, but rather, they brutally

attacked Yarnell as he reached in his truck to retrieve the papers. See id. at

22-24. Accordingly, we find no reason to disturb the ruling of the trial court.

      Thomas’s final issue challenges the weight of the evidence supporting

his convictions.   It is well-settled that when reviewing a weight of the

evidence claim,

      an appellate court does not substitute its judgment for the finder
      of fact and consider the underlying question of whether the
      verdict is against the weight of the evidence, but, rather,
      determines only whether the trial court abused its discretion in
      making its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S. Ct. 1792 (U.S. 2014). For that reason, “[a] weight of the evidence

claim must be preserved either in a post-sentence motion, by a written

motion before sentencing, or orally prior to sentencing. Commonwealth v.

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Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, 69 A.3d 601

(Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607. “Failure to properly

preserve the claim will result in waiver, even if the trial court addresses the

issue in its opinion.” Lofton, supra, 57 A.3d at 1273. Our review of the

certified record reveals Thomas failed to raise a weight of the evidence claim

with the trial court at any time before the filing of his notice of appeal.7

Therefore, we find the claim is waived for our review.

       Judgment of sentence affirmed.

       Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




____________________________________________


7
  We note that while Thomas did include a weight of the evidence challenge
in his court-ordered Pa.R.A.P. 1925(b) statement, and the trial court
addressed the claim in its opinion, Thomas’s weight claim is not preserved
“in the absence of an earlier motion.” See Commonwealth v. Sherwood,
982 A.2d 483, 494 (Pa. 2009), cert. denied, 559 U.S. 1111 (2010).



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