J-S56010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER PAUL KENYON

                            Appellant                 No. 753 MDA 2014


            Appeal from the Judgment of Sentence January 22, 2014
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000352-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 16, 2014

        Appellant, Christopher Paul Kenyon, appeals from the judgment of

sentence entered January 22, 2014, by the Honorable Carol L. Van Horn,

Court of Common Pleas of Franklin County. On appeal, Kenyon argues that

his conviction for aggravated assault was against the weight of the evidence.

No relief is due.

        On January 28, 2013, an altercation occurred between Kenyon and

Joseph Brumfield (“the victim”), over allegations that Kenyon may have

been involved with the girlfriend of Antonio Hadrick, who was one of the

victim’s friends. Hadrick, the victim, and the victim’s girlfriend, Christina

Bossinger, arranged to meet with Kenyon in order to confront him. As the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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argument grew heated, the victim punched Kenyon twice in the face,

knocking him to the ground. In response, Kenyon stabbed the victim five

times with a concealed knife, which resulted in serious injury.

        Following a jury trial on November 26, 2013, Kenyon was convicted of

two counts of aggravated assault.1             On January 22, 2014, the trial court

sentenced Kenyon to four to ten years’ incarceration.           Thereafter, Kenyon

filed a timely post-sentence motion requesting a new trial on the basis that

the verdict was against the weight of the evidence, which the trial court

denied following a hearing. This timely appeal followed.

        We review a challenge to the weight of the evidence as follows:

        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 [jury] is 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 [jury’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. Brown, 71 A.3d 1009, 1013 (Pa. Super. 2013) (citation

omitted; brackets in original), appeal denied, 77 A.3d 635 (Pa. 2013).


____________________________________________


1
    18 Pa.C.S.A. § 2702(a)(1), (4).



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      Kenyon argues that the verdict was against the weight of the evidence

because the jury erroneously disregarded his self-defense claim. “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 the other person.” 18 Pa.C.S.A.

§ 505(a). “Although the defendant has no burden to prove self-defense, …

before the defense is properly in issue, ‘there must be some evidence, from

whatever source, to justify such a finding.’” Commonwealth v. Mouzon,

53 A.3d 738, 740 (Pa. 2012) (citation omitted). Once a justification defense

is properly raised, “the Commonwealth bears the burden to disprove such a

defense beyond a reasonable doubt.” Commonwealth v. Torres, 766 A.2d

342, 345 (Pa. 2001) (citations omitted).

      The Commonwealth sustains its 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.

McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005) (citation omitted). “It

remains the province of the [finder of fact] to determine whether the

accused’s belief was reasonable, whether he was free of provocation, and

whether he had no duty to retreat.” Id. (citation omitted).

      The Commonwealth can negate a self-defense claim if it proves
      the defendant did not reasonably believe he was in imminent


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      danger of death or great bodily injury and it was necessary to
      use deadly force to save himself from that danger.

         The requirement of reasonable belief encompasses two
         aspects, one subjective and one objective. First, the
         defendant must have acted out of an honest, bona fide
         belief that he was in imminent danger, which involves
         consideration of the defendant’s subjective state of mind.
         Second, the defendant’s belief that he needed to defend
         himself with deadly force, if it existed, must be reasonable
         in light of the facts as they appeared to the defendant, a
         consideration that involves an objective analysis.

Commonwealth v. Smith, ___ A.3d ___, ___, 2014 WL 3844118 at *3-4

(Pa. Super., filed Aug. 6, 2014) (citations omitted).

      In rejecting Kenyon’s weight of the evidence claim, the trial court

determined that there was little to no evidence to suggest that Kenyon was

in imminent danger of death or serious bodily injury:

      Neither [the victim, Bossigner, nor Hadrick] had any weapons on
      them, or threated [Kenyon] at the scene with any weapons.
      [The victim] attacked [Kenyon] with his fists, but [Hadrick and
      Bossinger] stood by the car and observed.           Yet, [Kenyon]
      responded to [the victim’s] punches with deadly force by
      stabbing him five times in the abdomen and causing extensive
      physical damage.        The victim’s injuries were horrific and
      substantial, but there was no visible injuries on [Kenyon’s] face.
      Additionally, [Kenyon] stabbed the victim with a knife he had
      purposefully concealed before the victim attacked him. Although
      the victim was physically larger than [Kenyon] and hit [Kenyon]
      twice, once even knocking him to the ground, [Kenyon] was not
      warranted in removing the knife from his sleeve and immediately
      employing deadly force. See Commonwealth v. Hill, 629 A.2d
      949, 952 (Pa. Super. 1993) (“although the victim grabbed
      [appellant] by the collar and was physically larger than him, this
      does not invite one to grab a knife and use deadly force on a
      vital part of the body.”).

Trial Court Opinion, 4/9/14 at 11-12.




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      We agree with the trial court’s cogent analysis.               The evidence

presented was insufficient to support a finding that Kenyon – either

subjectively or objectively – reasonably believed he was in danger of death

or   serious   bodily   injury.   The   jury   clearly   concluded   that   Kenyon

unreasonably and unjustifiably escalated the confrontation when he stabbed

the victim five times with a concealed blade. Based on the foregoing, we do

not find that the jury’s verdict “shocks one’s sense of justice” so that a new

trial is warranted. Accordingly, we find the trial court properly exercised its

discretion in denying Kenyon’s challenge to the weight of the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2014




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