J-A17003-14


                                  2014 PA Super 165

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMAR SMITH

                            Appellant                  No. 663 EDA 2013


            Appeal from the Judgment of Sentence January 31, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003587-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

OPINION BY GANTMAN, P.J.:                             FILED AUGUST 06, 2014

        Appellant, Jamar Smith, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial conviction for aggravated assault, recklessly endangering another

person and possession of an instrument of crime.1 We affirm.

        The trial court opinion sets forth the relevant facts and procedural

history of this appeal as follows:

           At a waiver trial, the Commonwealth presented the
           testimony of Complainant, James Kedra, Philadelphia
           Police Officer, Robert Bakos, and Northeast Detective,
           Robert Schill. Additionally, they admitted into evidence
           photos, medical records, bloody clothing and a box cutter,
           and a 911 audiotape, which captured a portion of the
           incident between Appellant and [Mr. Kedra].
____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a), 2705, and 907(a), respectively.
J-A17003-14



       On February 29, 2012, at approximately 11:15 p.m., an
       altercation occurred on the 3400 block of Aldine Street, on
       the corner of Aldine and Leon, in the city and county of
       Philadelphia. [Mr. Kedra] believed Appellant was following
       him in his vehicle.     Both men parked their vehicles;

       Mr. Kedra later moved his vehicle to be further away from
       Appellant.   At the same time that Mr. Kedra left his
       vehicle, Appellant also left his, and a conversation between
       the two men ensued. Although Mr. Kedra wanted to avoid
       Appellant, the two were forced to cross paths because of
       the position of their cars, and Mr. Kedra wanted to make
       sure that Appellant was not behind him while walking. Mr.
       Kedra asked Appellant why he had been following him,
       whereupon Appellant took a fighting stance, only to then
       strike Mr. Kedra in his forehead and lip. Mr. Kedra saw an
       object in Appellant's hand, and believing that Appellant
       was going to stab him, Mr. Kedra used his arm to try and
       prevent any contact; the altercation was pushed closer to
       a nearby fence. The two then spun into a car, as Mr.
       Kedra tried to get Appellant off of him.         Despite Mr.

       Kedra] was stabbed several times with a box cutter. Mr.
       Kedra sustained injuries to his forehead and lip, had a
       piece taken out of his ear, and had stab wounds in the
       back of his head and in his back. The fight was brief and
       only lasted for a few minutes, however, Appellant
       apparently had threatened to kill Mr. Kedra during the

       friends, arrived at the scene in the midst of the altercation.


       men and called the police to the scene. Officers Quinn and
       Bakos were on duty at 3400 Aldine Street and responded
       to a person with a weapon. As the officers approached,
       Officer Balms observed several unidentified males,

       blood. Officer Bakos inquired as to what had occurred,
       placed Appellant in the police car, and found the box cutter
       that Appellant admitted to having used to stab Mr. Kedra.
       Mr. Kedra was then taken to the hospital to be treated for
       multiple lacerations to his face, including his head, mouth
       area, puncture wounds to the back and a stab wound to

                                   -2-
J-A17003-14


        the chest. Appellant was arrested by Officer Bakos and
        secured in the back seat of the police car. During trial,
        Appellant made out a vague claim of self-defense and that
        he was not the initial aggressor, however, these claims
        were [ultimately] found not credible by this court.

(Trial Court Opinion, filed December 16, 2013, at 2-4) (internal citations to



probation on January 31, 2013.     Appellant did not file any post-sentence

motions. Appellant timely filed a notice of appeal on February 27, 2013, and

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b) on March 1, 2013.

     Appellant raises the following issues for our review:

        DID THE TRIAL COURT ERR BY APPLYING THE WRONG
        BURDEN OF PROOF IN THIS SELF-DEFENSE CASE WHEN IT
        ASSESSED THE EVIDENCE AND REACHED ITS VERDICT
        FINDING [APPELLANT] GUILTY OF AGGRAVATED ASSAULT,
        RECKLESSLY ENDANGERING ANOTHER PERSON, AND
        POSSESSION OF AN INSTRUMENT OF CRIME?

        WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW
        TO DISPROVE SELF-DEFENSE BEYOND A REASONABLE
        DOUBT BECAUSE THE EVIDENCE DID NOT CLEARLY
                                                   USING
        A  BOX    CUTTER   TO   PROTECT    HIMSELF   WAS
        UNREASONABLE UNDER THE CIRCUMSTANCES?



     In his first issue, Appellant argues he has no obligation to prove his

claim of self-defense.   Rather, the law requires him to provide only some

evidence of self-defense, and the Commonwealth must prove beyond a

reasonable doubt that the claim lacks merit. Appellant contends the court


                                    -3-
J-A17003-14


erroneously shifted the burden of proof to Appellant when the court

evaluated his claim of self-defense. Appellant points to his timely objection

during closing arguments when this error occurred, but insists the court did



evidence of the probable error, where the court omits explanation of why it




                 -defense claim. Appellant concludes the trial court erred as a

matter of law in evaluating the evidence, and this Court should vacate the

judgment of sentence and remand for a new trial. We disagree.

      The Pennsylvania Crimes Code governs self-defense in relevant part as

follows:

           § 505. Use of force in self-protection

           (a) Use of force justifiable for protection of the
                       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:


                                       -4-
J-A17003-14


                 (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 that he can avoid the
                 necessity of using such force with complete
                 safety by

                                       *       *   *

              (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.A. § 9712 (relating
                     to sentences for offenses committed with
                     firearms); or

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


18 Pa.C.S.A. § 505(a)-(b) (emphasis added).2 According to our Supreme

____________________________________________


2
   Section 505       was     amended,      effective   August   29,   2011,   to   add
Pennsylvania
(Footnote Continued Next Page)


                                           -5-
J-A17003-14


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 such 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.

Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172, 1174 (1995).

                                                               -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 that 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

                         -defense under Section 505 of the Pennsylvania Crimes

Code, the burden is on the Commonwealth to prove beyond a reasonable

                                                                      -

Commonwealth v. McClendon, 874 A.2d 1223, 1229-30 (Pa.Super.

2005).

                       _______________________
(Footnote Continued)

incident (February 29, 2012). Therefore, the 2011 amendment to Section
505 applies to this case.



                                            -6-
J-A17003-14


        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

from that danger.   Commonwealth v. Sepulveda, 618 Pa. 262, ___, 55

A.3d 1108, 1124 (2012).

        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
                                                 tate of mind.

        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. Mouzon, 617 Pa. 527, 551, 53 A.3d 738, 752 (2012).

As the Mouzon

viewed in isolation with [the victim] as the sole physical aggressor and [the

                                    -7-
J-A17003-14


defendant] acting in responsive self-defense. [T]his would be an incomplete

and inaccurate view of the circumstances for self-                      Id. at

549, 53 A.3d at 751.    To claim self-defense, the defendant must be free

from fault in provoking or escalating the altercation that led to the offense,

before the defendant can be excused from using deadly force.              Id.

(emphasis added). Likewise, the Commonwealth can negate a self-defense



to protect against death or serious bodily               Commonwealth v.

Truong, 36 A.3d 592, 599 (Pa.Super. 2012) (en banc).

                                                                             -

defense, the Commonwealth must still disprove the asserted justification and




         affirmative proof that the denied fact existed so as to


         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



                                                            Commonwealth

v. Gonzales, 609 A.2d 1368, 1370 (Pa.Super. 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

                                    -8-
J-A17003-14


537, 542-

accidental was ineffective because there was adequate circumstantial

evidence to prove he pointed gun in direction of victim and discharged it).

                                                                     -defense

arising from any source beyond a reasonable doubt, a [fact-finder] is not

required to believe t

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

     A number of factors, including whether complainant was armed, any

actual physical contact, size and strength disparities between the parties,

prior dealings between the parties, threatening or menacing actions on the

part of complainant, and general circumstances surrounding the incident, are



that the use of deadly force was necessary to protect against death or

serious bodily injuries.   See Commonwealth v. Soto, 657 A.2d 40

(Pa.Super. 1995) (concurring opinion by Olszewski, J.) (collecting cases for

this general proposition). No single factor is dispositive. Id. Furthermore,

a physically larger person who grabs a smaller person does not automatically

invite the smaller person to use deadly force in response. Commonwealth

v. Hill, 629 A.2d 949 (Pa.Super. 1993).

     Finally, a trial court, acting as the finder of fact, is presumed to know

the law, ignore prejudicial statements, and disregard inadmissible evidence.

Commonwealth v. Dent, 837 A.2d 571 (Pa.Super. 2003).


                                    -9-
J-A17003-14


     In the instant case, the trial court reasoned:

        Although Appellant contends that the trial court erred in
        placing upon him the burden of proving self-defense, the
        burden did not shift from the Commonwealth throughout
        the trial. Once the issue of self-defense had been vaguely
        raised by Appellant, the Commonwealth sustained its
        burden of proof by demonstrating beyond a reasonable
        doubt that Appellant did not reasonably believe that he
        was in danger of death or serious bodily injury and that his
        response was improper. Even if Appellant feared Mr.
        Kedra, t
        after he claimed Mr. Kedra had pushed him, was
        unwarranted and unreasonable.


        character evidence, this does not negate the fact that the
        court ultim
        to be completely inappropriate and that the use of a
        deadly weapon in the altercation was unreasonable. Based
        upon all of the evidence, the court concluded that
        [Appellant] could not have reasonably believed that he was
        in imminent danger of serious bodily injury, in order to
        justify the use of a box cutter, where there was no threat
        of deadly force. Therefore, the Commonwealth satisfied its
        burden by establishing that the accused did not reasonably
        believe that he was in danger of death or serious bodily
        injury.




trier of fact, decided the evidence proved beyond a reasonable doubt that

Appellant unreasonably escalated the altercation when he attacked Mr.

Kedra with a box cutter. This finding is consistent with the proper burdens

of claiming and disproving self-defense. Drawing all reasonable inferences

from the evidence viewed in the light most favorable to the Commonwealth,

we conclude the trial court applied the correct standards and there was no

                                   - 10 -
J-A17003-14


                                                          Commonwealth v.

Eberle, 474 Pa. 548, 379 A.2d 90 (1977) is misplaced.         See id. (stating

mere threat of imminent attack from larger, drunken, and violent individual

can justify use of deadly force; pattern of destructive or abusive behavior

could justify use of deadly force for purposes of self-defense against larger

person in drunken rage). Here, we see no evidence that Mr. Kedra was in a

drunken rage, or that he had a history of abusing Appellant, such that

Appellant reasonably felt justified in using a response that escalated the

encounter. Finally, we observe that the trial court sitting as trier of fact is

presumed to know the law and correctly apply the burden of proof.         See

Dent, supra.    Nothing in this record indicates the contrary.    Accordingly,



      In his second issue, Appellant asserts the Commonwealth failed to

disprove Appellant acted in self-defense. Specifically, Appellant claims that

as a 130-pound, 18-year-old high school student, he reasonably feared

serious bodily injury when a 215-pound, 28-year-old man (who had been

drinking) unexpectedly accosted Appellant as he returned home after work,

late at night. Appellant maintains the court mischaracterized the incident as



violent encounters on the street during the late hours of the night.

Appellant argues the Commonwealth failed to prove Appellant did not

reasonably believe he was in imminent danger of death or serious bodily


                                    - 11 -
J-A17003-14


harm as a matter of law, given the disparity in weight between Appellant

and the complainant and the time of night. Appellant concludes this Court

should vacate the convictions/sentence and discharge him. We disagree.



following principles:

          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
                                                           -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. Barnswell Jones, 874 A.2d 108, 120-21 (Pa.Super.

2005) (quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).



stated:

          In this case, the evidence presented at trial was sufficient

                                      - 12 -
J-A17003-14


        to convict Appellant of possession of an instrument of
        crime and recklessly endangering another person.
        Although both sides presented evidence, the testimony of
        Mr. Kedra, Officer Bakos, and Detective Schill was found to
        be credible and believable.        Although all versions
        presented by the witnesses were fairly consistent, this
        court found the evidence presented by the Commonwealth
        to be dispositive. Even though the court did believe the
        character evidence presented by Appellant, this does not
        change the fact that there was sufficient evidence to find
        that Appellant had not acted reasonably in this situation
        and had escalated a physical altercation into deadly

        contention has previously been addressed here, where his
        actions were found to be unjustified for the situation.

        Viewing the facts of this case in the light most favorable to
        the [Commonwealth], the conviction should be upheld.
        This [c]ourt made a determination of fact and there is
        nothing in the record to warrant overturning that
        determination.

(Trial Court Opinion at 6-

decision, and we see no reason to disturb it. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2014




                                   - 13 -
