J-S32011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DIA WILLIAMS                               :
                                               :
                       Appellant               :   No. 1973 EDA 2018

          Appeal from the Judgment of Sentence Entered July 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0007810-2014


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 19, 2019

        Appellant Dia Williams appeals from the judgment of sentence imposed

after he was convicted of aggravated assault, possession of an instrument of

crime, terroristic threats, and simple assault.1       Appellant argues that the

evidence was insufficient to sustain his conviction for aggravated assault

because the Commonwealth failed to disprove his self-defense claim. He also

challenges the weight of the evidence. We affirm.

        The trial court summarized the facts of this matter as follows:

        On the evening of June 20, 2014, at 5711 Master Street in West
        Philadelphia, a verbal and physical altercation occurred between
        [Appellant], and the [victim], landlord Demond Gallman[,] in the
        basement of that rental property. [The victim] responded to
        another tenant’s complaint regarding loss of electricity in her unit
        by inspecting the fuse box in the basement of the property and
        observed that the wires in the fuse box had been pulled out and
        disconnected.    [Appellant] then approached [the victim] for
____________________________________________


1   18 Pa.C.S. §§ 2702(a), 907(a), 2706(a), 2701(a).
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     shutting off his electricity due to unpaid rent and asked [the
     victim] if he would be turning [Appellant]’s electricity back on.
     When [the victim] refused to do so, the [Appellant] responded:
     “Well nobody’s electric is getting cut back on.” [Appellant] then
     reached for [the victim]’s wire cutters and refused to return them
     to [the victim]. [Appellant] pushed [the victim] away using one
     hand with force, causing [the victim] to respond by striking the
     [Appellant]’s face with his fist. [Appellant] responded to [the
     victim]’s strike by continuously swinging directly in a stabbing
     motion at [the victim]’s left temple with his right fist—with the
     wire cutters in [Appellant]’s right hand. [The victim]’s chin was
     cut during the altercation, which resulted in significant blood loss
     and ten stitches. [Appellant] attempted to flee by running to his
     room in the rental property. [The victim] followed [Appellant] to
     his room and observed the window screen missing. Police officers
     found [Appellant] at the stoop of the back door of the rental
     property, unable to move due to injury from jumping out of his
     room’s window.

     Police officers recovered the wire cutters used by [Appellant], and
     traces of blood on the basement door and floor at the scene of the
     altercation. Medical records for [the victim]’s treatment and
     images of facial injuries to [the victim]’s chin were produced for
     trial. Police officers also recovered audio recordings of a third
     party tenant, Ms. Roberts.

Trial Ct. Op., 7/20/18, at 1-2 (record citations and some capitalization

omitted).

     On December 5, 2016, the matter proceeded to a bench trial, at which

both the victim and Appellant testified.   At the conclusion of trial, the trial

court found Appellant guilty of the foregoing crimes. On February 24, 2017,

Appellant filed a post-verdict motion arguing that he “had a right to defend

himself and this was a mutual combat situation caused by the alleged victim.”

See Post-Verdict Mot., 2/24/17. The trial court denied Appellant’s motion on

April 13, 2017.



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        On July 21, 2017, the trial court held a sentencing hearing. Appellant

moved for extraordinary relief under Pa.R.Crim.P. 704(b) on the basis that he

acted in self-defense. See N.T. Sentencing Hr’g, 7/21/17 at 6. The trial court

denied Appellant’s motion and sentenced him to five to ten years’

incarceration. On July 31, 2017, Appellant timely filed a post-sentence motion

preserving a challenge to the weight of the evidence. The trial court denied

Appellant’s motion on August 2, 2017.

        On August 30, 2017, Appellant filed a timely notice of appeal.        On

November 9, 2017, this Court dismissed Appellant’s appeal for failure to file a

docketing statement. See Pa.R.A.P. 3517. On February 20, 2018, Appellant

filed a petition to reinstate his appellate rights nunc pro tunc, which the trial

court granted on February 22, 2018. On March 23, 2018, Appellant filed a

petition under the Post Conviction Relief Act2 (PCRA), again seeking a

reinstatement of his appellate rights.

        On June 1, 2018, the trial court reinstated Appellant’s right to file a

direct appeal nunc pro tunc. That same day, Appellant filed a timely notice of

appeal. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement

on June 27, 2018, and raised the following claims:

        1. Th[e trial] court erred, abused its discretion, and unfairly
        prejudiced [Appellant], because the verdict was against the
        weight of the evidence.

        2. Th[e trial] court erred, abused its discretion, and unfairly
        prejudiced [Appellant], because the evidence was insufficient to
____________________________________________


2   42 Pa.C.S. §§ 9541-9546.

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      convict [Appellant] of aggravated assault. There was insufficient
      evidence to prove [Appellant] attempted “to cause serious bodily
      injury to another, or cause[d] such injury intentionally, knowingly
      or recklessly under circumstances manifesting extreme
      indifference to the value of human life.” Moreover, there was
      insufficient evidence to prove [Appellant] attempted “to cause or
      intentionally or knowingly cause[d] bodily injury to another with a
      deadly weapon.”

Appellant’s Rule 1925(b) Statement, 6/27/18, at 1-2 (citations and some

capitalization omitted). The trial court issued a Rule 1925(a) opinion asserting

that Appellant’s claims were meritless.

      Appellant raises two issues on appeal:

      [1.] Whether the evidence was sufficient as a matter of law to
      convict [Appellant] of aggravated assault[.]

      [2.] Whether the verdict was against the weight of the evidence.

Appellant’s Brief at 8 (full capitalization omitted).

      In his first issue, Appellant argues that the Commonwealth failed to

present sufficient evidence to rebut his claim of self-defense. Id. at 15. In

support, Appellant refers to his own trial testimony, and concludes that (1)

the victim “caused, and then escalated, the physical altercation[;]” (2) the

victim prevented Appellant from retreating; and (3) there was no evidence to

show that Appellant did not reasonably believe he was in danger of death or

serious bodily injury. Id. at 18.

      Initially, we note that Appellant did not preserve this issue in his Rule

1925(b) statement. Likewise, the trial court did not address it. Appellant’s

claim is therefore waived. See Commonwealth v. Castillo, 888 A.2d 775,



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780 (Pa. 2005); see also Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not

included in the Statement and/or not raised in accordance with the provision

of this paragraph (b)(4) are waived”).

      Even if Appellant properly preserved his claim, we would find it

meritless. Our standard of review in this context is as follows:

      Because a determination of evidentiary sufficiency presents a
      question of law, our standard or review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa. Super. 2017)

(citations, brackets, and quotation marks omitted), appeal denied, 187 A.3d

908 (Pa. 2018).

      Under the Crimes Code, self-defense is included under the defense of

justification, which is a complete defense to criminal liability. See 18 Pa.C.S.

§ 502. We have explained that

      [t]he 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


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      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.

Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008) (citation

omitted).

      To disprove a defendant’s claim of self-defense, the Commonwealth

must establish 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. It remains the
      province of the jury to determine whether the accused’s belief was
      reasonable, whether he was free of provocation, and whether he
      had no duty to retreat.

Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005)

(quotation marks and citations omitted).

      “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 [fact-finder’s] disbelief of the defendant’s

testimony[.]”    Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super.

2014). “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.’ The complainant can serve as a witness to the

incident to refute a self-defense claim.” Id. (citations omitted).




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      Here, the victim testified that Appellant took the victim’s wire cutters

and then shoved the victim when he attempted to grab them. In response,

the victim punched Appellant, who retaliated by swinging the wire cutters

toward the victim’s head in a stabbing motion and eventually striking him.

Viewing this evidence in the light most favorable to the Commonwealth as

verdict winner, there was sufficient evidence to show that Appellant provoked

or continued the use of force. See Smith, 97 A.3d at 788 (stating that a

defendant “must be free from fault in provoking or escalating the altercation

that led to the offense” (emphasis and citation omitted)); McClendon, 874

A.2d at 1230. Therefore, Appellant’s sufficiency claim fails.

      In his next claim, Appellant argues that the verdict was against the

weight of the evidence. Appellant’s Brief at 21. Specifically, he asserts that

the victim’s testimony was “vague, tenuous, and uncertain.” Id. at 23. He

also claims that the victim displayed “malevolence” towards Appellant, which

“compels the determination that the [t]rial [c]ourt should not have believed

the witness.” Id. at 24. Appellant concludes that because the victim was not

credible, the verdict was against the weight of the evidence, and the trial court

should have granted him a new trial. Id.

      Our standard of review regarding challenges to the weight of the

evidence is well settled:

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well settled that the [fact-finder] is

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      free to believe all, part, or none of the evidence and to determine
      the credibility of the witnesses, and a new trial based on a weight
      of the evidence claim is only warranted where the [fact-finder’s]
      verdict is so contrary to the evidence that it shocks one’s sense of
      justice. In determining whether this standard has been met,
      appellate review is limited to whether the trial judge’s discretion
      was properly exercised, and relief will only be granted where the
      facts and inferences of record disclose a palpable abuse of
      discretion.

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation

omitted).

      We have explained that

      [a] new trial should not be granted because of a mere conflict in
      the testimony or because the judge on the same facts would have
      arrived at a different conclusion. Rather, the role of the trial court
      is to determine that notwithstanding all the evidence, certain facts
      are so clearly of greater weight that to ignore them, or to give
      them equal weight with all the facts, is to deny justice. A motion
      for a new trial on the grounds that the verdict is contrary to the
      weight of the evidence concedes that there is sufficient evidence
      to sustain the verdict; thus the trial court is under no obligation
      to view the evidence in the light most favorable to the verdict
      winner.

Id. (citation omitted).    Further, “[b]ecause 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.” Id. (citation omitted). “One of the least

assailable reasons for granting or denying a new trial is the lower court’s

conviction that the verdict was or was not against the weight of the evidence




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and that a new trial should be granted in the interest of justice.” Id. (citation

omitted).

      Here, the trial court explained that it

      rendered its verdict with ample record of credible evidence. The
      Commonwealth produced audio records of the separate 911 calls
      on behalf of a third-party resident, medical records and
      documentation of head injury to the [victim], testimony from [the
      victim], [Appellant], and law enforcement personnel—all
      corroborating the attack on [the victim] on June 20, 2014. This
      [c]ourt, in its proper discretion, placed higher evidentiary weight
      on the testimony of the complaining witness than that of
      [Appellant], whose testimony lacked credibility.

Trial Ct. Op. at 5.

      Following our review, we discern no abuse of discretion in the trial

court’s ruling. See Landis, 89 A.3d at 699. The trial court found the victim’s

testimony more credible than that of Appellant.       Therefore, the trial court

appropriately concluded that its verdict was not so contrary to the evidence

as to require a new trial.    See id.     Further, we decline to reassess the

credibility of the Commonwealth’s witnesses and to reweigh the testimony and

evidence presented at trial. See Commonwealth v. West, 937 A.2d 516,

523 (Pa. Super. 2007) (emphasizing that the trier of fact is “free to believe

all, part or none of the evidence,” and “[t]his Court may not [re]weigh the

evidence or substitute its judgment [f]or that of the fact finder” (citation

omitted)). Accordingly, Appellant’s challenge to the weight of the evidence

merits no relief.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/19




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