J-S09035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROGER MITCHELL RIERA

                        Appellant                    No. 556 MDA 2013


     Appeal from the Judgment of Sentence dated November 27, 2012
            In the Court of Common Pleas of Lycoming County
             Criminal Division at No: CP-41-CR-0001459-2011


BEFORE: MUNDY, J., OLSON, J., and STABILE, J. FILED AUGUST 25, 2014

CONCURRING AND DISSENTING MEMORANDUM BY MUNDY, J.:



the sufficiency of the evidence, the weight of the evidence, the admissibility

of the

carry a knife, the propriety of the jury charge concerning involuntary



alleged discovery violations.   However, I cannot agree that the trial court

                                               -defense instruction based on



presented sufficient evidence to warrant the instruction.    Consequently, I

re

sentence.
J-S09035-14




jury instructions for an abuse of discretion.

                                                                   to
              give a specific jury instruction, it is the function of
              this Court to determine whether the record supports

              in this Commonwealth that a trial court should not
              instruct the jury on legal principles which have no
              application to the facts presented at trial.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. 2014)

(en banc

there is an abuse of discretion or an inaccurate statement of the law is there

                     Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.

Super. 2014) (citation omitted), appeal denied, --- A.3d ---, 126 MAL 2014

(Pa. 2014).



Amendment or in the Compulsory Process or Confrontation Clauses of the

Sixth Amendment, the Constitution guarantees criminal defendants a

                                                              Holmes v. South

Carolina, 547 U.S. 319, 324 (2006) (internal quotation marks and citations



requests a jury instruction on a defense, the trial court may not refuse to

instruct the jury regarding the defense if it is supported by evidence in the

record

improper for the trial judge to exclude such consideration by refusing the


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            Commonwealth v. Markman, 916 A.2d 586, 607 (Pa. 2007)

(internal quotation marks and citation omitte

has no burden to prove a claim of self-defense, before such a defense is

properly in issue, there must be some evidence, from whatever source, to
                            1
                                Commonwealth v. Sepulveda, 55 A.3d 1108,

1124 n.13 (Pa. 2012) (internal quotation marks omitted; emphasis added).



Commonwealth to prove beyond a reasonable doubt that the defendant was

not acting in self-                 Id., quoting Commonwealth v. Black, 376

A.2d 627, 630 (Pa. 1977).

       On June 28, 2011, the General Assembly amended the self-defense

statute to add several new subsections. Included among these changes was



provision. The effect of this addition was to negate the common law duty to

retreat in certain circumstances. The Stand Your Ground provision reads as

follows.

              § 505. Use of force in self-protection



____________________________________________
1
  Our Supreme Court has rejected the argument that we view this issue in
the light most favorable to the Commonwealth. See Markman, supra at
                     [w]hile that standard is appropriate to a sufficiency

inquiry, which focuses on whether there was enough evidence for a
                                                              .



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          (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.--



               (2.3) An actor who is not engaged in a criminal
               activity, who is not in illegal possession of a
               firearm and who is attacked in any place where
               the actor would have a duty to retreat under
               paragraph (2)(ii) has no duty to retreat and
               has the right to stand his ground and use
               force, including deadly force, if:

                     (i) the actor has a right to be in the place
                     where he was attacked;

                     (ii) the actor believes it is immediately
                     necessary to do so to protect himself
                     against death, serious bodily injury,
                     kidnapping or sexual intercourse by force
                     or threat; and

                     (iii) the person against whom the force is
                     used displays or otherwise uses:

                           (A) a firearm or replica of a firearm
                           as defined in 42 Pa.C.S. § 9712
                           (relating to sentences for offenses
                           committed with firearms); or

                           (B) any other weapon readily or
                           apparently capable of lethal use.



               (3) Except as otherwise required by this
               subsection, a person employing protective

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                     force may estimate the necessity thereof under
                     the circumstances as he believes them to be
                     when the force is used, without retreating,
                     surrendering possession, doing any other act
                     which he has no legal duty to do or abstaining
                     from any lawful action.



18 Pa.C.S.A. § 505.2

       In the case sub judice, Appellant testified at trial to the following.

              Q:     [Appellant], when you said that [the victim]

              talking about?

              A:     He was talking to me.



              Q:     Were you able or -- what happened when you


              A:     Yes.



              Q:     Where did you go?

              A:     Well, I walked down the road and [the victim]
              was still being restrained and he just --
                                                   be calmed down
              so I was continuing to walk. The whole time I was
              walking away I was still trying to reason with him,
              telling him come on just call me in the morning.

              screaming the same thing over and ov
____________________________________________
2
  These amendments became effective on August 29, 2011. The shooting in
this case took place on September 18, 2011, so Appellant was statutorily
eligible to raise this defense.



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          to f[**]king kill you[.] I know where you live. I just
          turned around and realized there is no calming him


          nothing of it and then moments later I here [sic]
          these footsteps. I turned around and there is this



          in this crazed sprint. Then in t
          reaching by his side I tell him no and stop.          He


          I fired. He took a few more steps -- all of this is
                                      , cutting back to the left
          -- he took a few more steps even after he was shot.



          Q:   When you initially shot [the victim] in the park,
          when he was coming at you, when you told him to

          you know where you shot him?

          A:    I believed it was in his shoulder.



          Q:    What were you trying to do?

          A:
                                                     -- just trying

          He just woul

          see him coming after me drawing for something, to
          draw a weapon. I pointed in his direction and he




          Q:    Okay. And you said that you believed that he
          had a weapon.


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J-S09035-14


          A:   He always does.

          Q:   How do you know?

          A:    Because I know him. I went to school with
          him. He always has a folding knife on him and I also
          had had conversations with him many times about
          firearms and he was going to be getting his
          concealed weapons permit when he turned 21. I
          figured since he was drinking he was 21 as well so

          Q:     Well, you actually have a license to carry,
          right?

          A:   Yes.



          Q:      So would it be fair to say that [the victim]
          was in mid-lunge when you shot him?

          A:



          Q:    And how long did it take from the time that
          you heard his footsteps behind you till the time you
          shot him? How much time?

          A:   Moments.

          Q:   Moments or seconds?

          A:     I guess it would be measured in seconds,
          maybe a second or two at most. As fast as you can -
          - as fast as you can scream no and stop twice.



          Q:   And he was yelling things?

          A:   He was going to kill me.

          Q:   Did you believe him?

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          A:    Of course I [did]. I thought I was going to die.
          It was crazy.

          Q:    Did you believe that you needed to use that
          kind of force to protect yourself from death or
          serious bodily injury?

          A:   Yes. I was just trying to avoid -- I was trying
          to get away.




          Q:    As [the victim wa]s chasing you down through


          A:    Yes.



          Q:
                   used on his eyes?

          A:    Well, at first I saw him reach. I know a draw
          when I see one and then after that I was continuing
          to look at him as I was screaming no and stop.
          When you are trying to talk with somebody you look
                                                    g them a


          Q:
          he was reaching for?

          A:
          assuming by the fact that he stated that he wanted
          to kill me it was an object to kill me. He was in a
          draw stance.

          Q:    Well, what did you see him draw?

          A:
                                          --                -- it
          was a very crazy situation.          Happened so fast.

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J-S09035-14


           Details are --          even --
           --

N.T., 8/15/12, at 66, 69, 70-71, 73-74, 75, 79, 80, 81-81, 107-108.

     Based on the above testimony, in my view, Appellant established the

                                                             ruction.   First,

Appellant was not the initial aggressor. Id. at 69, 70-71. Second, Appellant



                            505(b)(2.3)(i). Also, Appellant testified that he

believe[d] that [he] needed to use that kind of force to protect [him]self



     However, as to Section 505(b)(2.3)(iii)(B), the Commonwealth argues,

and the trial court concluded, that Appellant did not meet the requirements ,




T                                                                           e



Pa.C.S.A. § 505(b)(2.3)(iii); see also Trial Court Opinion, 4/2/13, at 22

          [t]here was no evidence that [the victim] had



                                                   displayed



against whom the force is used displays      Id.




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        Section 505(b)(3) states that a                     may estimate the

necessity [of deadly force] under the circumstances as he believes them

to be

505(b)(3) (emphases added). The trial court and the Commonwealth reject

               rguments based on the circumstances as they actually were,

not as Appellant perceived them to be. See Trial Court Opinion, 4/2/13, at

22-                                    -9.     After careful review, I agree with

                                                      d the role of the jury and

improperly weighed the evidence.

        The crux of the issue on this appeal is thus whether the self-defense



                            18 Pa.C.S.A. § 505(b)(2.3)(iii). Clearly, assuming

compliance with all of the other statutory requirements, in a situation where




critical to the analysis.     The question then becomes, where the lethal




does.

        The fact that the trial court disag



to decide. Trial Court Opinion, 4/2/13, at 22; see also Commonwealth v.


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J-S09035-14


Mayfield, 585 A.2d 1069, 1071 (Pa. Super. 1991) (en banc) (stating that a

trial court must give the self-                     even though the evidence

of self-                                                              .   As to

Section 505(b)(2.3)(iii)(B), Appellant testified that he perceived the victim

           e weapon by reaching down to draw and lunging at him.          N.T.,

8/15/12, at 107-108.      In my view, when read together, Sections 505



deadly force to the extent permitted by the Stand Your Ground provisions,




that the victim was reaching for a knife or a gun.            The trial court



                                      accord Trial Court Opinion, 4/2/13, at

                                                                              s

requirements sufficiently to warrant the instruction.

      I wish to emphasize that I take no position as to whether the jury

would have believed Appellant, or whether a jury should believe him. The

only question this Court is confronted with in this appeal is whether

Appellant was entitled to the jury instruction. When the evidence presented

by Appellant through his own testimony, at a minimum, is looked at from his

vantage point, in my view, he did present sufficient evidence to satisfy all of


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Section 505



instruction.   See Antidormi, supra.     Accordingly, I would reverse the

judgment of sentence and remand the case for a new trial.   I respectfully

dissent.




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