J-S12030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

EDMUND SNIPES,

                            Appellant               No. 742 EDA 2015


           Appeal from the Judgment of Sentence of November 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011799-2011


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 09, 2016

       Appellant, Edmund Snipes, appeals from the judgment of sentence

entered on November 7, 2014.1 We affirm.

       The trial court summarized the pertinent facts and trial testimony as

follows:

           On September 26, 2011, the complainant, Reginald
           Stewart, walked to a Chinese store on Germantown
           Avenue to buy something to eat. When he was outside of
           the Chinese store, he observed Marquita Lee who alerted
           him that [Appellant] had a gun.      As Stewart turned
           around, he observed [Appellant] and his fiancée,
           Cassaundra Hawkins. [Appellant] then removed a gun
           from the waistband of his gym shorts and pointed it in
           Stewart’s face. Stewart identified the gun as a small
____________________________________________


1
  Appellant’s judgment of sentence was made final when the trial court, on
January 17, 2015, denied his motion for reconsideration.




*Retired Senior Judge assigned to the Superior Court.
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       revolver. [Appellant] said to Stewart, “What’s up now, old
       head.”

       As [Appellant] and Stewart were arguing, Philadelphia
       Police Officer Rose Dangler was driving by and pulled over
       to investigate. After determining there were no issues,
       Officer Dangler left. After Officer Dangler left, Stewart
       started to walk away from [Appellant]. As he walked
       away, he screamed, “I can’ t believe ya’ll acting like this. I
       don’t owe you money, you don’t owe me money.” In
       response, [Appellant] ran toward Stewart, pushed his head
       down toward the sidewalk, and shot him five times. Four
       of those gunshots skimmed his head and one entered his
       leg. After he was shot, Stewart identified [Appellant] to
       the police as the shooter.

                                  ***

       More than a month before the shooting, [] Stewart
       [performed] contracting work for Hawkins, including fixing
       her concrete steps.       Thirty days before the shooting,
       Hawkins and Stewart argued over payment for Stewart’s
       contracting work for Hawkins. At trial, Hawkins testified
       that—one month before the shooting—Stewart “got
       boisterous” about asking for his money, so she told
       [Appellant] to come downstairs to speak to him. Hawkins
       also testified that, on the night of the shooting, [Appellant]
       confronted Stewart about payment for the steps.

                                  ***

       After shooting Stewart, [Appellant] went back to his house
       where he changed clothes. [] Hawkins testified that after
       she heard gunshots, [Appellant] ran to their house, went
       upstairs and changed his clothes.

                                  ***

       At trial, [Appellant] testified consistently with Stewart and
       Hawkins except as to who had the gun, how the shooting
       began, and how Stewart was shot.                For example,
       [Appellant] confirmed that Stewart used to perform odd
       jobs around the house, such as cleaning up weeds that
       were too tall.      Approximately one month before the
       shooting, Stewart worked on concrete steps for Hawkins.
       [Appellant] further testified that, before he completed the

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       concrete job, Stewart asked Hawkins for money that he
       was owed for repairing a concrete step. Hawkins told
       [Appellant] to speak to Stewart because he was getting
       “too disrespectful.” [Appellant] told Stewart that although
       the job was $50[.00], Stewart would receive the other half
       of the money when the job was completed. Stewart
       responded by cursing at [Appellant].

       On the night of the shooting, [Appellant] and Hawkins
       were walking to a bank on Germantown Avenue. As
       [Appellant] passed by a Chinese store, [Appellant] testified
       that he was pulled aside by Stewart who asked him, “Yo
       big man, what’s up with the rest of my money?”
       [Appellant] did not reply to Stewart, but instead waited for
       Hawkins, who was inside the Chinese store. At this same
       time, a police officer pulled up and [Appellant] told Stewart
       to stop being disrespectful. When the police officer left,
       [Appellant] told Stewart, “You’re not getting shit.” In
       response Stewart said, “I’ll show you what I want to do,”
       and took out a gun. [Appellant] grabbed the gun and
       began to tussle with Stewart. During the struggle over the
       gun, one gunshot was fired into Stewart’s leg. After a few
       more seconds of tussling, [Appellant] testified that he was
       able to bend Stewart’s wrist before the gun went off
       again—this time striking Stewart as he fell backward.
       After the shooting, [Appellant] went home and placed the
       gun in his basement.

       On cross-examination, [Appellant] admitted that instead of
       walking away from Stewart, he argued with him, that he
       was “getting loud” with Stewart, and that they were
       “egging” on each other. When Stewart took the gun out,
       [Appellant] claimed he had both hands on the gun and was
       pushing it down while Stewart pulled the gun closer to
       him.

       Also on cross-examination, [the prosecutor] had
       [Appellant] physically demonstrate to the jury how Stewart
       and he tussled over the gun. Although [the prosecutor]
       did her best to place on the record the physical interaction
       between herself and [Appellant], the trial court recalls that
       the demonstration contradicted the medical evidence as to
       how Stewart was injured. In other words, the medical
       records indicated that the bullet entered Stewart’s leg at
       the thigh and then traveled upward toward his abdomen.

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          In contrast, according to [Appellant], the gun was pointed
          downward toward the sidewalk when the gunshot injured
          Stewart. Moreover, Detective [Patrick] Murray found no
          indication of a “strike mark” in the sidewalk, the absence
          of which refute[d] [Appellant’s] claim that the gun was
          pointed downward when he opened fire.

Trial Court Opinion, 7/31/15, at 1-4 (citations omitted).

       On September 12, 2014, a jury convicted Appellant of aggravated

assault, two firearm violations, and possession of an instrument of crime. 2

On November 7, 2014, the trial court sentenced Appellant to a mandatory

ten to twenty-term of imprisonment for his aggravated assault conviction,

and an aggregate, consecutive term of ten years of probation for the

remaining convictions.         This appeal follows the trial court’s denial of

Appellant’s post-sentence motion.          Both Appellant and the trial court have

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

       Appellant raises the following issue:

          1. Was the verdict based on insufficient evidence, in that
             [Appellant] proved self-defense and the Commonwealth
             failed to disprove self-defense beyond a reasonable
             doubt?




____________________________________________


2
  18 Pa.C.S.A. §§ 2702(a), 6106(a)(1), 6110.2(a), and 907, respectively.
Following the jury guilty verdict, the trial court found Appellant guilty of
possession of a firearm prohibited due to a prior conviction. 18 Pa.C.S.A. §
6106(a)(1).




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Appellant’s Brief at 4.3

       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 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.
         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. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (citations

omitted), appeal denied, 897 A.2d 452 (Pa. 2006).

       The Pennsylvania Crimes Code defines, in pertinent part, the concept

of self-defense as follows:


____________________________________________


3
  Although Appellant challenged the imposition of the mandatory minimum
due to a prior conviction pursuant to 42 Pa.C.S.A. § 9714(a), he now
concedes that this issue is meritless in light of our Supreme Court’s recent
decision in Commonwealth v. Reid, 117 A.3d 777 (Pa. 2015).




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        § 505. Use of force in self-protection.

           (a)   Use of force justifiable for protection of the
                 person.—The use of force upon or toward
                 another person is justifiable when the actor
                 believes that such force is immediately necessary
                 for the purpose of protecting himself against the
                 use of unlawful force by such other person on the
                 present occasion.

           (b)   Limitations on justifying necessity for use of
                 force.—

                                   ***

                 (2) The use of deadly force is not justifiable under
                 this section unless the actor believes that such
                 force is necessary to protect himself against
                 death, serious bodily injury, kidnapping or sexual
                 intercourse compelled by force or threat; nor is it
                 justifiable if:

                  (i) the actor, with the intent of causing death or
                 serious bodily injury, provoked the use of force
                 against himself in the same encounter; or

                  (ii) the actor knows he can avoid the necessity
                 of using such force with complete safety by
                 retreating[.]

18 Pa.C.S.A. § 505.

     This Court has recently summarized:

          According to our Supreme Court, the justified use of
        deadly force requires:

              a) The actor was free from fault in provoking or
              continuing the difficulty which resulted in the use
              of deadly force; b) the actor must have
              reasonably believed that he was in imminent
              danger of death or serious bodily injury, and that
              there was a necessity to use force in order to save
              himself or others therefrom; and c) the actor did
              not violate any duty to retreat or to avoid the
              danger.

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       Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d
       1172, 1174 (1995). The defendant has no “burden to
       prove” his self-defense claim.      Commonwealth v.
       Torres, 564 Pa. 219, 224, 766 A.2d 342, 345 (2001). The
       Supreme Court explained the evidentiary burdens as
       follows:

          While there is no burden on a defendant to prove the
          [self-defense] claim, before the defense is properly
          at issue at trial, there must be some evidence, from
          whatever source to justify a finding of self-defense.
          If there is any evidence that will support the claim,
          then the issue is properly before the fact finder.

       Id.    (internal   citations  omitted).     See   also
       Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.
       Super. 2008) (stating same standard). If the defendant
       properly raises “self-defense under Section 505 of the
       Pennsylvania Crimes Code, the burden is on the
       Commonwealth to prove beyond a reasonable doubt that
       the defendant’s act was not justifiable self-defense.”
       Commonwealth v. McClendon, 874 A.2d 1223, 1229-30
       (Pa. Super. 2005).

          The Commonwealth sustains this burden if it
          establishes at least one of the following: 1) the
          accused did not reasonably believe that he was in
          danger of death or serious bodily injury; or 2) the
          accused provoked or continued the use of force; or
          3) the accused had a duty to retreat and the retreat
          was possible with complete safety.

       Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa.
       Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 894
       (2009) (quoting McClendon, supra at 1230).              The
       Commonwealth must establish only one of these three
       elements beyond a reasonable doubt to insulate its case
       from a self-defense challenge to the evidence.
       Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa.
       Super. 2000), appeal denied, 566 Pa. 657, 782 A.2d 542
       (2001). The Commonwealth can negate a self-defense
       claim if it proves the defendant did not reasonably believe
       he was in imminent danger of death or great bodily injury
       and it was necessary to use deadly force to save himself



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        from that danger. Commonwealth v. Sepulveda, 618
        Pa. 262, 288-89, 55 A.3d 1108, 1124 (2012).

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014).

     In Smith, this Court further discussed situations like the present case,

when the defendant’s own testimony is the only evidence of self-defense:

        When the defendant’s own testimony is the only evidence
        of self-defense, the Commonwealth must still disprove the
        asserted justification and cannot simply rely on the jury’s
        disbelief of the defendant’s testimony:

           The “disbelief of a denial does not, taken alone,
           afford affirmative proof that the denied fact existed
           so as to satisfy a proponent’s burden of proving that
           fact.” The trial court’s statement that it did not
           believe Appellant’s testimony is no substitute for the
           proof the Commonwealth was required to provide to
           disprove the self-defense claim.

        Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa.
        Super. 2003) (quoting Torres, supra). If there are other
        witnesses, however, who provide accounts of the material
        facts, it is up to the fact finder to “reject or accept all, part
        or    none      of   the    testimony     of    any   witness.”
        Commonwealth v. Gonzales, 415 Pa. Super. 564, 609
        A.2d 1368, 1370 (1992). The complainant can serve as a
        witness to the incident to refute a self-defense claim.
        Reynolds, supra. See also Commonwealth v. Hall,
        574 Pa. 233, 242, 830 A.2d 537, 542-43 (2003) (holding
        defendant’s own testimony that shooting was accidental
        was ineffective because there was adequate circumstantial
        evidence to prove he pointed gun in direction of victim and
        discharged it). “Although the Commonwealth is required
        to disprove a claim of self-defense arising from any source
        beyond a reasonable doubt, a [fact-finder] is not required
        to believe the testimony of the defendant who raises the
        claim.” Commonwealth v. Bullock, 984 A.2d 818, 824
        (Pa. Super. 2008).

Smith, 97 A.3d at 788.


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      In this case, the trial court concluded that the Commonwealth

disproved Appellant’s claim of self-defense, explaining as follows:

         Here, the evidence supports and the jury believed that
         [Appellant] used more force than necessary to save
         himself from death. [Based on the evidence presented and
         the demeanor of the witnesses at trial, the jury’s credibility
         determination should stand because there is no basis to
         disturb them on appeal.           The jury found the
         Commonwealth’s evidence to be credible and discredited
         Appellant’s testimony.] Appellant was carrying a gun in
         his shorts when he approached Stewart, pointed a gun to
         his face, and stated, “What’s up now, old head?” Stewart
         was not even facing [Appellant] as [Appellant] approached
         him. [Appellant’s] own fiancée admitted in her testimony
         that Stewart was on the defensive side of the argument.
         After Officer Dangler left the scene, Stewart—not
         [Appellant]—began to walk away. [Appellant] admitted
         that he stayed and that they were “egging” each other on.
         As Stewart was screaming at [Appellant], [Appellant] ran
         toward him, pushed his head toward the ground, and shot
         Stewart in the leg.

         During this encounter, Stewart offered no physical
         resistance and made no threats to [Appellant]. Instead,
         Stewart began to walk away after Officer Dangler left and
         was only yelling at [Appellant].     It was only after
         [Appellant] ran toward Stewart and shot him in the leg
         that Stewart attempted to shove [Appellant] off of him to
         avoid further violence. See Commonwealth v. Chine, 40
         A.3d 1239 [(Pa. Super. 2012)] (rejecting self-defense
         claim because the defendant shot an unarmed victim who
         he thought would retrieve a weapon not in direct proximity
         to their verbal argument).

         Therefore, there is sufficient evidence that the
         Commonwealth proved beyond a reasonable doubt that
         [Appellant] unreasonably used more force than necessary
         to save himself from death.

                                    ***

         Here, the evidence [also] supports and the jury believed
         that [Appellant] violated his duty to retreat. [Appellant]

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        was presented with at least two opportunities to retreat in
        complete safety. First, [Appellant] could have left the
        scene with his fiancée after Officer Dangler investigated.
        Instead of following his fiancée, who left the scene
        unscathed, [Appellant] admitted to lingering and “egging
        on” Stewart. Second, [Appellant] had another opportunity
        to leave the scene when Stewart began to walk away while
        yelling at him. Instead of walking to his home and ending
        the argument, [Appellant] ran toward Stewart and fired
        multiple gunshots at Stewart, striking him once in the leg.

        Moreover, there is no evidence that [Appellant] was
        blocked by anyone from safely retreating, or that, in doing
        so, [Appellant] would have increased his exposure to
        harm. To the contrary, [Appellant] was easily able to
        escape home after he shot Stewart, which is evidence that
        he knew that an avenue of safe retreat was available. See
        Commonwealth v. Ventura, 975 A.2d 1128 [(Pa. Super.
        2009)] (rejecting the defendant’s self-defense claim
        because an avenue of retreat was possible that would not
        have exposed him to additional harm).

        As a result, there is sufficient evidence that the
        Commonwealth proved beyond a reasonable doubt that
        [Appellant] failed to utilize an avenue of safe retreat as
        required.

Trial Court Opinion, 7/31/15, at 7-9 (footnote omitted).

     Our review of the record supports the trial court’s conclusions.     In

addition, we further note that, through its witnesses, the Commonwealth

established that Appellant provoked the encounter which actually led to the

shooting.    Specifically, Stewart, as the complainant, refuted Appellant’s

version of the incident, Smith, supra, and his description of the incident

was corroborated in part by testimony from Marquita Lee.             Lee was

accompanying Stewart when Appellant approached with a gun in his

waistband.


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      In arguing to the contrary, Appellant wholly relies upon his version of

the incident. See Appellant’s Brief at 23-25. Given the guilty verdicts, the

jury did not believe Appellant’s version of the incident.          Moreover, while

Appellant asserts there was “conflicting evidence as to whether [Stewart]

had been intoxicated at the time of the incident[,]” he offers no further

explanation why this fact, even if true, would alter the Commonwealth’s

ability to disprove Appellant’s self-defense claim.   Id. at 24.

      Finally, Appellant presents several arguments regarding the sufficiency

of the evidence supporting one or more of his firearm convictions. Id. at 25.

Because Appellant raises these claims for the first time on appeal, they are

waived and we need not address them further.          See generally, Pa.R.A.P.

302(a).

      In sum, because our review of the record supports the trial court’s

conclusion that the Commonwealth disproved Appellant’s self-defense claim

beyond a reasonable doubt, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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