J-A17037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL MCLAUGHLIN,

                            Appellant                No. 3453 EDA 2016


             Appeal from the Judgment of Sentence March 21, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0007870-2015


BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 28, 2017

        Appellant, Michael McLaughlin, appeals from the judgment of sentence

imposed following his bench trial conviction of possessing an instrument of

crime (PIC) and recklessly endangering another person (REAP).1 Appellant

challenges the sufficiency and the weight of the evidence. Specifically, he

claims the Commonwealth failed to disprove his claim of self-defense. We

affirm.

        The certified record of this case confirms that the Honorable Joan

Brown, who presided at the bench trial, is no longer sitting as a judge in

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Court found Appellant not guilty of the other charges, aggravated
assault, and simple assault. (See N.T. Trial, 3/21/16, at 44).
J-A17037-17


Philadelphia County; the record was forwarded to this Court without an

opinion.

       We take the facts of the case from our independent review of the

certified record.    Appellant testified in his own defense.     The victim, John

Wallace, though present at trial, did not testify.        There is no dispute that

Wallace suffers from mental illness and has a diminished mental capacity;

the record also confirms that he has a significant speech impediment. He

receives social security benefits for his disabilities.

       On July 3, 2015, Appellant got into a physical altercation with Wallace,

in the communal kitchen of the rooming house where they were both

boarders. (See N.T. Trial, 3/21/16, at 6-11).

       Another tenant, Gloria Paolella, was present during the fight at issue.

She testified for the Commonwealth.2             Ms. Paolella conceded on cross–

examination that in part because of his mental health issues, Wallace could

sometimes be prone to violent outbursts. (See id. at 17).

       According to Appellant, the incident on the date in question began

when Wallace brushed up against or bumped into him. Appellant was in the

kitchen making a cup of lemonade for his wife. Appellant called Wallace a

name (not otherwise specified) and threw the lemonade at him.

____________________________________________


2
  Ms. Paolella also testified she had known Wallace for fifteen to twenty
years, and was the designated recipient for his social security disability
benefits.



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        Wallace jumped up from his seat and held Appellant in some sort of

bear hug.3      It appears that punches were exchanged.         To free himself,

Appellant struck Wallace repeatedly in the head with a ceramic cup, from

Wallace’s crown to his forehead, until Wallace let go and fled outside onto

the street.

        Neighbors saw him bleeding profusely.         They called the police and

emergency medical technicians.           Wallace was hospitalized, and needed at

least nine surgical staples to close the open wounds.4

        As noted, the trial court acquitted Appellant of both simple and

aggravated assault, but convicted him of REAP and PIC.                The court

sentenced him to two consecutive two-year terms of reporting probation.

(See Sentencing Order, 3/21/16). This nunc pro tunc appeal followed the

denial of Appellant’s post-sentence motion, (which included a challenge to

the weight of the evidence), by operation of law.

        Appellant raises two questions on appeal:

              I. Whether the trial court erred in finding the
        Commonwealth presented sufficient evidence to disprove
        Appellant’s claim of self-defense and convict Appellant of

____________________________________________


3
    Appellant claims that Wallace threw him against the wall.
4
  Appellant testified that he also went to a (different) hospital emergency
room for scrapes and contusions. (See N.T. Trial, at 35). Other than
Appellant’s own testimony, there is no evidence of record concerning his
injuries. (See id. at 6-15, 20-29).




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       [p]ossession of an [i]nstrument of [c]rime and [r]ecklessly
       [e]ndangering [a]nother [p]erson[?]

              II. Whether the trial court erred in denying Appellant’s
       post-sentence motion for a new trial where the verdict was
       against the weight of the evidence because the Commonwealth
       failed to disprove Appellant’s claim of self-defense[?]

(Appellant’s Brief, at x).

       Preliminarily, both Appellant’s sufficiency and weight claims rely

predominantly on his contention that the Commonwealth failed to overcome

his assertion of self-defense.         (See id. at 1-12).   Accordingly, we will

address the self-defense claim first.

       Citing Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001), Appellant

posits that once he met the burden to introduce some evidence of self-

defense, the Commonwealth had the burden to disprove self-defense beyond

a reasonable doubt.5 (See Appellants Brief, at 1; passim). He argues that

the Commonwealth failed to do so. We disagree.


____________________________________________


5
  Notably, Appellant never made a formal, explicit claim of self-defense at
trial. Self-defense is never mentioned. (See N.T. Trial, 3/21/16, at 1-49).
His claim was implicit at best, consisting largely of trial testimony, repeated
in the brief on appeal, that Wallace was a much larger, stronger man.
Curiously, in light of his heavy reliance on self-defense in this appeal, at trial
Appellant turned aside several suggestions from counsel to confirm that he
was afraid of Wallace. (See, e.g., id. at 38, 42). Appellant would only
concede that he was “concerned” about Wallace’s erratic behavior. (Id.).
On these facts, we would have been open to consideration of whether
Appellant had waived his claim of self-defense on appeal. However, because
the Commonwealth concedes that Appellant made a claim of self–defense,
(see Commonwealth’s Brief, at 7-18), albeit in the course of arguing against
(Footnote Continued Next Page)


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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. See 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. While there is no burden on a defendant to
      prove the 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.

Torres, supra at 345. (case citations omitted).

             (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.

18 Pa.C.S.A. § 505(a).

      The Commonwealth sustains this burden [to disprove self-
      defense] 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. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citations

omitted) (emphasis added).              “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



                       _______________________
(Footnote Continued)

it, we will give him the benefit of the doubt and review his self-defense claim
on the merits.



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of all reasonable inferences to be drawn therefrom.” Torres, supra at 344

(citation omitted).

      Here, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, we conclude that the trial court, sitting as

factfinder, was free to accept Ms. Paolella’s testimony as evidence that

Appellant escalated a verbal encounter into a physical assault when he threw

the lemonade at Wallace. (See N.T. Trial, at 9).

      In fact, despite Appellant’s testimony that Wallace started the physical

confrontation, at oral argument counsel for Appellant conceded the throwing

of the lemonade at Wallace by Appellant.      Therefore, viewed in the light

most favorable to the Commonwealth, the trial court had sufficient evidence

(confirmed on appeal) to infer that Appellant by his own actions provoked or

continued the use of force by Wallace.

      Appellant’s provocation is particularly noteworthy in light of his trial

testimony that he was especially concerned about a physical fight with

Wallace, owing to his own brain surgery in 1992.       (See id. at 34, 36).

Furthermore, he repeatedly described Wallace as a significantly larger man,

who had “super human” strength. (Id. at 34).

      Drawing all reasonable inferences in favor of the Commonwealth as

verdict winner, we have no hesitation in concluding that the trial court

properly determined that Appellant failed to prevail on his claim of self-

defense.   The trial court sitting as fact finder had ample evidence to


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conclude that Appellant was the aggressor who provoked Wallace by

throwing lemonade on him, and who used excessive force to repel Wallace

when Wallace responded.         Appellant’s self-defense claims would not merit

relief.

          Moreover, Appellant’s challenges to sufficiency and weight would also

fail.     Our standard of review for a claim against the sufficiency of the

evidence 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.

Smith, supra at 790 (citation omitted).

          Here, Appellant first challenges the sufficiency of the evidence for his

conviction of PIC. (See Appellant’s Brief, at 1-3).

          “A person commits a misdemeanor of the first degree if he possesses

any instrument of crime with intent to employ it criminally.” 18 Pa.C.S.A. §

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907(a).   Instruments of crime include “[a]nything used for criminal

purposes and possessed by the actor under circumstances not manifestly

appropriate for lawful uses it may have.” Id. at 907(d) (emphasis added).

      Appellant argues, erroneously and without supporting authority, that

“the cup was not a weapon.” (Appellant’s Brief, at 12). We disagree.

      “A deadly weapon need not be, of course, an inherently lethal

instrument or device.” Commonwealth v. McCullum, 602 A.2d 313, 323

(Pa. 1992) (noting an ax, baseball bat, iron bar, heavy cuspidor, and even a

bedroom slipper have been held to constitute deadly weapons); see also

Commonwealth v. Chambers, 157 A.3d 508, 518 (Pa. Super. 2017)

(mace/pepper spray held to be an instrument of crime, noting that egg

thrown from a roof at windshield, clothes iron, paint stick also held to be

instruments of crime) (collecting cases).

      In this case, Appellant used the cup he was carrying as a blunt force

object to inflict multiple wounds on Wallace’s head causing profuse bleeding

which required hospitalization and at least nine surgical staples to close the

wounds up. Appellant’s PIC claim fails.

      Appellant also challenges the sufficiency of the evidence for REAP.

(See Appellant’s Brief, at x).

           A person commits a misdemeanor of the second degree if
      he recklessly engages in conduct which places or may place
      another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705.


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      However, apart from the unsuccessful self-defense claim, Appellant

fails to develop an independent argument supported by pertinent authority

of the insufficiency of the evidence for the REAP conviction.               (See

Appellant’s Brief, at 1-16). Accordingly, that claim is waived. See Pa.R.A.P.

2119(a), (b).

      Moreover, the claim would not merit relief. The trial court had ample

evidence from which to conclude that Appellant inflicted multiple wounds to

Wallace’s head, putting him in danger of serious bodily injury or death.

Even if it were not waived for failure of development, under our standard of

review, Appellant’s challenge to the sufficiency of the evidence for REAP

would not merit relief.

      Additionally, Appellant challenges the weight of the evidence.        (See

Appellant’s Brief, at 14-15). He argues that the trial court’s verdict shocks

the conscience. (See id. at 15). We disagree.

            For this Court to reverse the jury’s verdict on weight of the
      evidence grounds, we must determine that the verdict is so
      contrary to the evidence as to “shock one’s sense of justice.”
      Our standard of review of a weight of the evidence claim is well-
      settled.

               Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         Because the trial judge has had the opportunity to hear
         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons
         advanced by the trial judge when reviewing a trial court’s
         determination that the verdict is against the weight of the
         evidence.   One of the least assailable reasons for
         granting or denying a new trial is the lower court’s

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         conviction that the verdict was or was not against the
         weight of the evidence and that a new trial should not be
         granted in the interest of justice.

Commonwealth v. Hitner, 910 A.2d 721, 733 (Pa. Super. 2006), appeal

denied, 926 A.2d 441 (Pa. 2007) (citation omitted) (emphasis added).

       [A] challenge [to the weight of the evidence] concedes that
       sufficient evidence was adduced to convict the defendant but
       that the verdict must nevertheless be overturned because the
       evidence was untrustworthy and unreliable.        It is not the
       function of an appellate court, which has only the cold record to
       review, to determine whether the evidence was credible.

Commonwealth v. Gaskins, 692 A.2d 224, 228 (Pa. Super. 1997)

(citations omitted).

       Preliminarily, we observe that Appellant’s weight claim, like his

sufficiency claim, is premised primarily on his claim of self-defense.     (See

Appellant’s Brief, at 15). It fails for the same reason.

       Moreover, aside from a brief introductory citation to cases for general

principles of law not in dispute, Appellant does not develop an argument that

the trial court abused its discretion, or present controlling authority in

support of his specific weight claim.

       Instead, Appellant merely engages in a self-serving review of the

evidence, without citation to the record or pertinent authority, to reach the

conclusion that the court’s verdict shocks the conscience. (See id. at 14-

16).   We decline the invitation to an impermissible re-weighing of the

evidence. The learned trial court’s verdict (which gave Appellant the benefit




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of an acquittal on both simple and aggravated assault), does not shock the

conscience of this Court. Appellant’s weight claim would not merit relief.

          Finally, we note that Appellant purports to challenge the terms of his

sentence of probation. (See Appellant’s Brief, at 16). Appellant’s claim is

waived and would not merit relief.

          First, Appellant omitted this claim from his Statement of Questions

Involved. (See Appellant’s Brief, at x). Accordingly, he failed to preserve

his issue under our rules of appellate procedure. See Pa.R.A.P. 2111(a)(4);

Pa.R.A.P. 2116 (“No question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby.”).       Nor did

Appellant raise this claim in his post-sentence motion, or afterward when the

sentence transcript became available.           See Pa.R.Crim.P. 720(A)(1); (see

also Post Sentence Motion, 3/31/16, at unnumbered pages 1-2).

          Moreover, his claim of a discrepancy between the term of probation

announced after trial and the term in the sentencing order would not merit

relief.

          In Pennsylvania, the text of the sentencing order, and not the
          statements a trial court makes about a defendant’s sentence, is
          determinative of the court’s sentencing intentions and the
          sentence imposed. As we have stated, the “signed sentencing
          order, if legal, controls over oral statements of the sentencing
          judge not incorporated into the signed judgment of sentence.”
          Commonwealth v. Isabell, 503 Pa. 2, 12, 467 A.2d 1287,
          1292 (1983) (internal quotation marks and citations omitted)
          ....




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Commonwealth v. Borrin, 80 A.3d 1219, 1226–27 (Pa. 2013) (some

citations omitted).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2017




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