J-S40020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARC ANDREW WALKER                         :
                                               :
                       Appellant               :   No. 15 WDA 2019

       Appeal from the Judgment of Sentence Entered December 4, 2018
      In the Court of Common Pleas of Mercer County Criminal Division at
                        No(s): CP-43-CR-0000704-2018


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED OCTOBER 11, 2019

        Marc Andrew Walker appeals from the judgment of sentence imposed

following his convictions for terroristic threats, recklessly endangering another

person (“REAP”), and harassment.1 Walker contends that the court erred in

denying his request for a jury instruction on self-defense, and that the

Commonwealth presented insufficient evidence to support his conviction for

REAP. We affirm.

        At trial, Walker’s wife, Elizabeth Walker, testified that she and Walker

were engaged in an argument on the first floor of their home, when Walker

“pushed and struck” her shoulder. Trial Court Opinion, filed 4/30/19, at 2.

“The argument progressed upstairs into the master bedroom where [Walker]

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2706(a)(1), 2705, and 2709(a)(1), respectively.
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went to a nightstand, withdrew a handgun, inserted a magazine containing

bullets into the handgun, and then approached his wife who was backing out

of the bedroom into the hallway.” Id. Mrs. Walker testified that, “[w]ith the

handgun in his right hand, [Walker] grabbed his wife’s throat with his left hand

and asked her if she wanted to die. Mrs. Walker twisted sideways, broke free

from [Walker’s] grasp, gathered together their children and fled the

residence.” Id.

      The Commonwealth also presented the testimony of Walker’s mother

and Police Officer Christopher Hughes. Walker’s mother testified about

conversations she had with Walker and Mrs. Walker, and said that following

the incident, she retrieved Walker’s handgun and a few other guns from

Walker’s home and gave them to the police.

      Officer Hughes testified that after Walker’s wife called the police, he

went to the Walkers’ residence and arrested Walker. He said he later received

the handgun from Walker’s mother, along with a magazine, live ammunition,

and three long guns. Officer Hughes could not recall whether the handgun was

loaded when Walker’s mother gave it to him. N.T., 9/12/18, at 51. He also

stated that in order to fire the gun, the shooter would have to insert the

magazine and pull the slide back and then slide it forward. Id. at 56. When

asked whether the firearm had a “safety,” Officer Hughes responded, “I know

it has a hammer on it, so I’m not sure if it’s a double action or a single action.”

Id. at 55-56.




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      Walker testified in his own defense and said that his wife initiated the

argument while they were downstairs, and he brushed past her as he went

upstairs. Id. at 63-65. Walker said his wife followed him upstairs, still yelling,

and he admitted that he then retrieved the gun from the nightstand. Id. at

65, 76-77. According to Walker, the gun was not loaded and he did not point

it at her. Id. at 65-66. He stated that he got the gun because he felt

threatened. Id. at 65-66, 69, 74. However, Walker said he did not believe he

needed the gun “to save [his] life,” but did not want “to wait for somebody to

be injured.” Id. at 73. Walker conceded that his wife had not physically

attacked him and was unarmed. Id. He also acknowledged that he was

between 5’9” and 5’10” tall, and weighed 230 pounds, while his wife was 5’8”

and around 159 pounds. Id. at 72. Walker testified that once his wife saw the

gun, she stopped yelling at him, and Walker began to prepare their children

for a bath. Id. at 66. He claimed that Mrs. Walker soon resumed yelling, and

that he went into the bedroom and fell asleep. Id. at 67-68. He said he later

awoke to find the house empty. Id. at 68.

      Walker asked the court to instruct the jury on self-defense. Id. at 79.

The court refused, stating, “[T]here has to be force exerted and the self

defense or self protection is using other force sufficient to overcome the initial

force exerted against the Defendant. There was no testimony as to any force

being exerted against [Walker]; therefore, I am denying the charge.” Id.

      During closing argument, the Commonwealth argued,




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       The Judge will instruct you that a gun is a deadly weapon. Use
       your common sense. You are not permitted under the law to use
       a deadly weapon and deadly force on someone who hasn’t even
       struck you. There’s zero testimony that she ever struck him, zero
       testimony that she ever had a weapon.

Id. at 97.

       Walker renewed his request for a self-defense instruction, arguing that

the Commonwealth had raised the law of self-defense in its argument. Id. at

98. The court again denied the request. The court stated that it had already

instructed the jury to follow the law as stated by the court, not by counsel,

and would do so again in its closing charge, which it did. Id. at 99-100.

       The jury found Walker guilty of terroristic threats and REAP. The court

then, sitting without a jury but based on the evidence presented during the

jury trial, convicted Walker of the summary offense of harassment. The court

sentenced Walker for the terroristic threats and REAP convictions to two

concurrent 12-month periods of probation, and for the harassment charge, it

imposed a concurrent 90-day sentence of probation.2

       Walker raises the following issues:

       I. Whether the Court erred in failing to instruct the jury that
       [Walker] had the right to self-defense to negate the intent to
       terrorize?




____________________________________________


2 Although Walker was initially sentenced on November 28, 2018, the court
entered an amended sentencing order on December 4, 2018, to include the
sentence for the harassment charge. We have amended the caption
accordingly.

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        II. Whether the Commonwealth presented sufficient evidence to
        sustain a conviction for Recklessly Endangering Another [Person]?

Walker’s Br. at 7.

                         I. Self-Defense Instruction

        Walker argues the court erred and abused its discretion in denying his

request for a self-defense instruction. He contends that there was evidence

that he reasonably believed he was in immediate danger because he testified

that Mrs. Walker followed him upstairs during their argument and continued

to attack him verbally to the point where he felt threatened. Walker’s Br. at

18. Walker also points to his testimony that he got the gun because he did

not want to “wait for someone to be injured.” Id. at 19. Walker argues that

the trial court erred by requiring evidence that Mrs. Walker either used

unlawful force against him or threatened him with unlawful force, before it

would give a self-defense instruction. Rather, Walker asserts, whether Mrs.

Walker used or threatened physical force goes to the reasonableness of

Walker’s belief that he was in imminent danger, which he claims was for the

jury.

        Walker argues that the court compounded the error by allowing the

Commonwealth to state during its closing argument that the law does not

allow for use of deadly force against someone who “hasn’t even struck you,”

because: (1) this is a misstatement of law, and (2) the court still refused to

give the self-defense instruction after the Commonwealth had placed the issue

squarely before the jury. Id. at 20. Walker further argues that the court’s



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closing charge — that the jury was to disregard counsel’s statements of law

— was insufficient to alleviate the jury’s confusion.

      “We review jury instructions for a clear abuse of discretion or an error

of law.” Commonwealth v. Hall, 199 A.3d 954, 963 (Pa.Super. 2018). “A

jury charge is erroneous only if the charge as a whole is inadequate, not clear,

or has a tendency to mislead or confuse a material issue.” Id. We do not grant

relief on a challenge to jury instructions where the error was harmless and did

not contribute to the verdict. Commonwealth v. Bullock, 913 A.2d 207, 218

(Pa. 2006).

      A claim of self-defense requires evidence of three things:

      (a) that the defendant reasonably believed that he was in
      imminent danger of death or serious bodily injury and that it was
      necessary to use deadly force against the victim to prevent such
      harm; (b) that the defendant was free from fault in provoking the
      difficulty which culminated in the slaying; and (c) that the
      defendant did not violate any duty to retreat.

Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (brackets

omitted).

      For self-defense to be properly in issue, “there must be some evidence,

from whatever source, to justify” a finding that the defendant acted in self-

defense. Id. (quoting Commonwealth v. Black, 376 A.2d 627, 630 (Pa.

1977)). Thus, there must be evidence that, among other things, the defendant

actually and reasonably believed deadly force was necessary to prevent death

or serious bodily injury. Commonwealth v. Smith, 97 A.3d 782, 787

(Pa.Super. 2014) (citing Mouzon, 53 A.3d at 752). The reasonableness

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inquiry involves a consideration of numerous factors, “including whether [the]

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.” Id. at 788. A defendant does not

qualify for a claim of self-defense if the defendant used excessive force in

response to non-deadly force. 18 Pa.C.S.A. § 505(b)(2); Commonwealth v.

Jones, 332 A.2d 464, 466 (Pa.Super. 1974); see also Smith, 97 A.3d at

788.

       Here, although the trial court’s statement that Walker’s claim of self-

defense required evidence that Mrs. Walker had exerted actual force against

Walker was not accurate, we nonetheless affirm because the evidence here

did not put self-defense in issue. The evidence did not justify a finding that

Walker reasonably believed that he needed to brandish a firearm to protect

himself from imminent death or serious bodily injury. Not only had Mrs. Walker

not used violence against him, she had not threatened to do so, did not have

a weapon, and was considerably smaller than Walker. Moreover, even if

Walker’s belief that his wife intended to use physical force against him was

objectively reasonable, Walker’s response of brandishing a loaded firearm was

excessive in response to any threat Mrs. Walker allegedly posed.

       For like reasons, the Commonwealth’s statement during closing does

not require reversal. The court instructed the jury to disregard counsel’s

explanations of the law, and in any event, the statement did not mislead or

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confuse the jury to such an extent as to prejudice Walker and require a new

trial. The trial court did not err in refusing to instruct the jury on self-defense.

                    II. Sufficiency of Evidence of REAP

      Walker argues the Commonwealth failed to present sufficient evidence

to convict him of REAP because there was no evidence that he pointed a

firearm at his wife or that the firearm was ready to be fired. Walker argues

that although Mrs. Walker testified that she saw Walker load a magazine into

the gun, she did not say that the slide was forward, which Officer Hughes

testified would be required to fire the gun. Walker also argues there was no

testimony that the safety was off. Walker argues that the court erred in relying

on Commonwealth v. Mitchell, 554 A.2d 542 (Pa.Super. 1989), because in

that case, the defendant had struggled with the victim over a gun and there

was a “very strong possibility the revolver could discharge.” Walker’s Br. at

23 (quoting Mitchell, 554 A.2d at 549). Here, according to Walker, there was

no evidence of a struggle over the firearm or that the firearm was ready to be

discharged.

      “To determine the legal sufficiency of evidence supporting a jury's

verdict of guilty, this Court must view the evidence in the light most favorable

to the Commonwealth, which has won the verdict, and draw all reasonable

inferences in its favor.” Commonwealth v. Hoffman, 198 A.3d 1112, 1118

(Pa.Super. 2018) (quoting Commonwealth v. Feathers, 660 A.2d 90, 95

(Pa.Super. 1995)). “We then determine whether the evidence is sufficient to

permit a jury to determine that each and every element of the crimes charged

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has been established beyond a reasonable doubt.” Id. (quoting Feathers,

660 A.2d at 95). “[T]he question of any doubt is for the fact finder unless the

evidence is so weak and inconclusive that, as a matter of law, no probability

of fact can be drawn from the combined circumstances.” Commonwealth v.

Hopkins, 747 A.2d 910, 913-14 (Pa.Super. 2000).

      A conviction for REAP requires evidence that the defendant “recklessly

engage[d] in conduct which place[d] or may [have] place[d] another person

in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. A conviction

for REAP requires a finding that the defendant had “an actual present ability

to inflict harm and not merely the apparent ability to do so.” Commonwealth

v. Cordoba, 902 A.2d 1280, 1288 (Pa.Super. 2006). Accordingly, “the mere

pointing of an unloaded gun, without more, does not constitute REAP.”

Commonwealth v. Reynolds, 835 A.2d 720, 728 (Pa.Super. 2003).

      Here, the evidence was sufficient to establish that Walker had the

present ability to harm Mrs. Walker because she testified that the gun was

loaded. Walker has not cited any authority requiring evidence that the slide

was forward or that the safety was off in order for the prosecution to prove

REAP, and we are aware of none. Moreover, unlike the loading of the gun,

moving the slide and turning the safety off are simple actions that a defendant

can accomplish quickly, or that could occur during such a struggle as occurred

here. Thus, the absence of such evidence does not defeat a finding that Walker

had the present ability to inflict harm.




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      In addition, a conviction for REAP based on a defendant’s possession of

a firearm does not require evidence that the defendant pointed the firearm at

the victim. Rather, “[b]randishing a loaded firearm during the commission of

a crime provides a sufficient basis on which a factfinder may conclude that a

defendant proceeded with conscious disregard for the safety of others, and

that he had the present ability to inflict great bodily harm or death.” Hopkins,

747 A.2d at 916.

      Walker’s attempt at distinguishing Mitchell is thus unavailing. There,

the defendant struggled with an arresting police officer, unsnapped the

officer’s gun holster, and attempted to remove the gun from the holster. 554

A.2d at 549. The defendant was “swinging wildly” and attempting to the throw

the officer to the ground. Id. We affirmed the adjudication of delinquency for

REAP, as “[t]here was a very strong possibility that the revolver could

discharge” and the defendant therefore “possessed the actual present ability

to inflict harm by struggling over an officer’s gun.” Id. We reached this

conclusion without any mention of whether there was evidence that the safety

was off or the slide was forward.

      Here, Walker took a handgun, grabbed his wife by the throat and

threatened her with death, and she struggled to break free. As the trial court

explained, “[d]uring this time that . . . Mrs. Walker had to use some degree

of force to overcome [Walker’s] grasping . . . her throat, there is a good

possibility that the gun could have discharged and injured Mrs. Walker.” Tr.

Ct. Op. at 6-7. We agree that the evidence that Walker struggled with his wife

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while holding a loaded firearm and threatening her with death sufficiently

indicated his ability to inflict death or serious bodily injury to support the

conviction for REAP.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2019




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