J-S45022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAN DAVID HERNANDEZ JR.                    :
                                               :
                       Appellant               :   No. 1175 EDA 2019

               Appeal from the PCRA Order Entered April 10, 2019
     In the Court of Common Pleas of Northampton County Criminal Division
                         at No(s): CP-48-CR-1021-2016

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

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 28, 2019

        Dan David Hernandez Jr. (Appellant) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        A prior panel of this Court summarized the facts of this case as follows:

           In April 2013, [Appellant] took a vehicle, which had been
        involved in an accident, to Kinte King’s (“King”) auto repair shop
        located in Bethlehem, Pennsylvania.          On April 22, 2013,
        [Appellant] went to the shop to discuss the estimate for the
        repairs with King. [Appellant] contested King’s request for $300
        for parts, and the two engaged in a verbal argument, which
        escalated into a physical altercation. [Appellant] eventually left
        the shop and called his uncle, Angelo Lopez (“Lopez”), about the
        confrontation. Thereafter, [Appellant], who brought a firearm,
        and Lopez returned to King’s shop. Lopez instructed [Appellant]
        to remain in the vehicle while he spoke with King. However,
        [Appellant] ignored Lopez’s instruction, approached King, and
        shot him six times, including in the chest, back, and groin.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        [Appellant] fled the scene, and was not apprehended until two
     years later in New Jersey.

Commonwealth v. Hernandez, 69 EDA 2017 at 1-2 (Pa. Super. Jan. 18,

2018) (unpublished memorandum).

     The PCRA court provided the following procedural history:

         On July 7, 2016, following a jury trial, [Appellant] was
     convicted of attempted murder, aggravated assault, firearms not
     to be carried without a license, possession of an instrument of
     crime, and recklessly endangering another person. On November
     21, 2016, [Appellant] was sentenced to eighteen (18) to thirty-six
     (36) years on the attempted murder charge, with the sentences
     on the remaining charges to run concurrently. [Appellant] filed a
     timely post-sentence motion, which was denied by this Court,
     followed by a direct appeal to the Superior Court, which ultimately
     affirmed the judgment of sentence in a memorandum opinion
     dated January 18, 2018. . . .

         [Appellant] filed the instant PCRA [petition] on August 13,
     2018. [PCRA Counsel] was appointed to represent [Appellant]. A
     second amended PCRA [p]etition was filed by [PCRA Counsel], and
     PCRA hearings were held on December 14, 2018 and February 1,
     2019. [Appellant raised the following issues]: that counsel was
     ineffective for (a) failing to request an imperfect self-defense
     instruction at trial; (b) failing to move for judgment of acquittal at
     trial or pursue a sufficiency of the evidence claim on appeal
     regarding the firearms charge; (c) failing to object at trial to the
     [c]ourt’s definition of “firearm” in charging the jury; (d) failing to
     raise a weight of the evidence claim in post-sentence motions; (e)
     failing to object at trial to the jury charge regarding [Appellant]’s
     duty to retreat; and (f) failing to request the “corrupt and polluted
     source” jury charge. [Appellant] further assert[ed] that his
     sentence for aggravated assault is illegal because it should have
     merged with the sentence for attempted murder. . . .

PCRA Court Opinion, 4/10/19, at 1-2.




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     On April 10, 2019, the PCRA court dismissed Appellant’s PCRA petition.

This timely appeal followed. Both the PCRA court and Appellant have complied

with Pa.R.A.P. 1925.

     On appeal, Appellant presents the following issues for review:

     A. Did the [PCRA court] err in failing to find that [Trial Counsel]
     was ineffective for failing to request an imperfect defense of
     others instruction?

     B. Did the [PCRA court] err in failing to find that [Trial Counsel]
     was ineffective for failing to move for judgment of acquittal on the
     charge of firearms not be carried without a license, 18 Pa.C.S.A.
     § 6106, and did the [PCRA court] err in failing to find [Appellate
     Counsel] ineffective for failing to pursue a sufficiency of the
     evidence challenge to that conviction on appeal?

     C. Did the [PCRA court] err in failing to find that [Trial Counsel]
     was ineffective for agreeing to and not objecting to the [t]rial
     [c]ourt, in its jury instructions, defining a “firearm” in terms of a
     semiautomatic .40 caliber handgun as opposed to utilizing the
     standard jury instruction set forth in PA-JICRIM 15.6106, Pa. SSJI
     (Crim), § 15.6106 (2016)?

     D. Did the [PCRA court] err in failing to find that [Trial Counsel]
     was ineffective for failing to raise a weight of the evidence claim
     as to all convictions in post-sentence motions, thus waiving the
     issue on appeal?

     E. Did the [PCRA court] err in failing to find that [Trial Counsel]
     was ineffective for failing to object to that part of the jury
     instruction regarding Appellant’s duty to retreat on the ground
     that Appellant did not have a duty to retreat pursuant to 18
     Pa.C.S.A. § 506(b)?

     F. Did the [PCRA court] err in failing to find that [Trial Counsel]
     was ineffective for failing to request the jury instruction that
     Appellant’s uncle was a corrupt and polluted source?

     G. Is Appellant’s sentence for aggravated assault illegal because
     it merges with his sentence for attempted murder?


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Appellant’s Brief at 5-6.

      We note that we review the denial of PCRA relief by “examining whether

the PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      Appellant’s first six issues involve allegations of ineffective assistance of

counsel. In deciding ineffective assistance of counsel claims, we begin with

the presumption that counsel rendered effective assistance. Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”            Id. (citation omitted).       To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.


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      For his first issue, Appellant argues that Trial Counsel was ineffective for

failing “to request an imperfect self-defense of others instruction that, if

believed by the jury, would have reduced his attempted murder conviction to

attempted voluntary manslaughter, a lesser offense.” Appellant’s Brief at 20.

Appellant asserts that because the trial court gave the jury a defense of others

instruction, there was no reason for Trial Counsel not to request an imperfect

defense of others instruction.

      The Pennsylvania Crimes Code defines “Unreasonable belief killing

justifiable[,]” or imperfect self-defense, as follows:

      (b) Unreasonable belief killing justifiable.--A person who
      intentionally or knowingly kills an individual commits voluntary
      manslaughter if at the time of the killing he believes the
      circumstances to be such that, if they existed, would justify the
      killing under Chapter 5 of this title (relating to general principles
      of justification), but his belief is unreasonable.

18 Pa.C.S.A. § 2503(b). As this Court has explained, the primary difference

between imperfect self-defense and self-defense is the reasonableness of the

belief that the use of deadly force was necessary:

      A defense of “imperfect self-defense” exists where the defendant
      actually, but unreasonably, believed that deadly force was
      necessary. 18 Pa.C.S.A. § 2503(b); Commonwealth v. Marks,
      704 A.2d 1095, 1100 (Pa. Super. 1997)[.] However, all other
      principles of self-defense must still be met in order to establish
      this defense. Commonwealth v. Broaster, 863 A.2d 588, 596
      (Pa. Super. 2004).       The requirements of self-defense are
      statutory: “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 [or another]
      against the use of unlawful force by such other person on the
      present occasion.” 18 Pa.C.S.A. § 505(a). If “the defender did
      not reasonably believe deadly force was necessary[,] he provoked

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      the incident, or he could retreat with safety, then his use of deadly
      force in self-defense was not justifiable.” Commonwealth v.
      Fowlin, [] 710 A.2d 1130, 1134 ([Pa.] 1998). A successful claim
      of imperfect self-defense reduces murder to voluntary
      manslaughter. Commonwealth v. Tilley, [] 595 A.2d 575, 582
      ([Pa.] 1991).

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

      At trial, Appellant testified on his own behalf and asserted that his

shooting of King was justified based on a defense of others theory. When

Appellant raised his defense of others claim on appeal, a prior panel of this

Court rejected it, explaining:

         [Appellant] testified at trial that following his verbal and
      physical altercation with King, he left the auto shop and called
      Lopez. N.T., 7/6/16, at 65-82; see also id. at 70-71, 76-79
      (wherein [Appellant] stated that during the initial encounter, King
      grabbed a knife and threatened to kill [Appellant]; King punched
      [Appellant] in the face; and King choked [Appellant]). [Appellant]
      stated that when he and Lopez returned to the auto shop, Lopez
      told [Appellant] to stay in the vehicle while he talked to King. Id.
      at 89; see also id. at 85-87 (wherein [Appellant] testified that he
      brought his firearm upon returning to King’s shop). [Appellant]
      indicated that Lopez and King exchanged words, and that King’s
      body language was extremely aggressive. Id. at 90. [Appellant]
      testified that he exited the vehicle and walked toward King and
      Lopez. Id. at 92; see also id. (wherein [Appellant] stated that
      he told a woman in a vehicle close to the shop that “something
      bad was going to happen.”). [Appellant] observed Lopez and King
      exchange punches, and then saw King reach for a weapon from
      his waist area. Id. at 92-94; see also id. at 94 (noting that
      [Appellant] did not see a firearm). [Appellant] indicated he was
      scared and worried about what would happen to Lopez, and as a
      result, pulled out his firearm and fired multiple shots at King. Id.
      at 94-97, 101-02. [Appellant] stated that he did not intend to
      take King’s life. Id. at 96.

        The fact-finder found [Appellant]’s testimony to be
      unbelievable. See Trial Court Opinion, 4/17/17, at 4; see also
      Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014)

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     (stating that “[a]lthough the Commonwealth is required to
     disprove a claim of self-defense arising from any source beyond
     a reasonable doubt, a [fact-finder] is not required to believe the
     testimony of the defendant who raises the claim.”).              The
     Commonwealth cannot sustain its burden of proof by relying “on
     the [fact finder’s] disbelief of the defendant’s testimony . . . . If
     there are other witnesses, however, who provide accounts of
     material facts, it is up to the [fact-finder] to reject or accept all,
     part or none of the testimony of any witness.” Smith, 97 A.3d at
     788 (internal quotations omitted).

        King testified that he and [Appellant] were involved in a fight
     over the payment for work on a vehicle. N.T., 7/5/16, at 125-26,
     128-29, 131-32; see also id. at 155-59 (wherein King stated that
     he struck [Appellant] several times during the fight, and choked
     him). King stated that [Appellant] then left the shop, and later
     returned with Lopez. Id. at 132, 135, 137. King testified that
     Lopez exited his vehicle, approached King, and attempted to
     punch King in the face. [Id.] at 138, 140; see also id. at 184-
     85, 188 (wherein an eyewitness to the shooting, Kelsey Wrecsics
     (“Wrecsics”), testified that Lopez walked up to King and punched
     him in the mouth, and that [Appellant] was walking toward Lopez
     and King at this time); 219 (wherein an eyewitness to the
     shooting, Takala Atwood (“Atwood”), stated that Lopez
     approached King and punched him in the face). King then heard
     someone yell gun, and King turned and attempted to run away
     from the scene. Id. at 138. Wrecsics and Atwood each testified
     that prior to the shooting, [Appellant] approached them and
     stated that “if you don’t want to see anything crazy, leave now.”
     Id. at 183, 220, 221.         Wrecsics and Atwood stated that
     [Appellant] then started shooting at King. Id. at 185, 221, 22-23
     Following the shooting, [Appellant] told Wrecsics “I told you so.”
     Id. at 191. As a result of the shooting, King suffered six gunshot
     wounds, including to the chest, back, and groin. N.T., 7/6/16, at
     5-6.

         Here, the credible evidence establishes that Lopez punched
     King upon approaching him, and, after hearing that someone had
     a firearm, King turned and attempted to flee the scene. Further,
     [Appellant] made comments to eyewitnesses both before and
     after the shooting. Thus, viewed in a light most favorable to the
     Commonwealth as the verdict winner, we conclude that there was
     sufficient evidence for the fact-finder to find, beyond a reasonable
     doubt, that [Appellant] was not acting in defense of others when

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      he shot King. See Smith, 97 A.3d at 788 (stating that the fact-
      finder was free to believe all, part or none of the evidence
      presented at trial, and to reject the testimony of those witnesses
      it determined were not credible).

Hernandez, 69 EDA 2017 at 6-9 (footnotes omitted).

      Therefore, as this Court previously explained, the testimony at trial

credited by the jury indicates that Appellant and Lopez were the aggressors

of the altercation and Appellant did not act in defense of Lopez when he shot

King. See N.T., 7/5/16, at 125-38, 183-85, 219-21. Thus, there is no record

support for Appellant’s assertion that he would have prevailed on an imperfect

self-defense theory at trial. See Truong, 36 A.3d at 599. Indeed, on direct

appeal, this Court noted that “because Hernandez did not meet the

requirements of defense of others, he failed to establish the defense of

imperfect self-defense.” Hernandez, 69 EDA 2017 at 9 n.3. Because the

record does not support Appellant’s assertion that the outcome of the case

would have been different had Trial Counsel requested an imperfect self-

defense jury instruction, Appellant was not prejudiced by Trial Counsel’s

failure to do so.   See Bomar, 104 A.3d at 1188; King, 57 A.3d At 613.

Accordingly, Appellant’s first issue is meritless.

      For his second issue, Appellant argues that Trial Counsel was ineffective

because he failed to move for a judgment of acquittal on the charge of firearms

not to be carried without a license, and Appellate Counsel was ineffective for

not raising a sufficiency of the evidence claim for that conviction. Appellant

contends that the Commonwealth failed to prove that the gun Appellant used

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to shoot King was a “firearm” as defined by Section 6102 of the Crimes Code,

because the Commonwealth offered no evidence relating “to the length of the

barrel of the gun or to the overall length of the gun.” Id.

      Pertinent to this ineffective assistance of counsel claim, we acknowledge

the standard of review for challenges to the sufficiency of the evidence:

         As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by 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.

          The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, [t]he fact that the evidence
      establishing a defendant’s participation in a crime is circumstantial
      does not preclude a conviction where the evidence coupled with
      the reasonable inferences drawn therefrom overcomes the
      presumption of innocence. Significantly, we may not substitute
      our judgment for that of the fact finder; thus, so long as the
      evidence adduced, accepted in the light most favorable to the
      Commonwealth, demonstrates the respective elements of a
      defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019)

(citations omitted). “As the ultimate finder of fact, the jury [is] free to believe

some, all, or none of the Commonwealth’s evidence. The jury [is also] free

to resolve any inconsistencies or discrepancies in the testimony in either

party’s favor.” Commonwealth v. Jacoby, 170 A.3d 1065, 1078 (Pa. 2017).

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      Appellant was convicted of firearms not to be carried without a license

under Section 6106(a)(1) of the Pennsylvania Crimes Code. Section 6106

provides, in relevant part, as follows:

      (a) Offense defined.--

         (1) Except as provided in paragraph (2), any person who
         carries a firearm in any vehicle or any person who carries a
         firearm concealed on or about his person, except in his place
         of abode or fixed place of business, without a valid and lawfully
         issued license under this chapter commits a felony of the third
         degree.

18 Pa.C.S.A. § 6106(a)(1). Section 6102 defines a “firearm” as:

      Any pistol or revolver with a barrel length less than 15 inches, any
      shotgun with a barrel length less than 18 inches or any rifle with
      a barrel length less than 16 inches, or any pistol, revolver, rifle or
      shotgun with an overall length of less than 26 inches. The barrel
      length of a firearm shall be determined by measuring from the
      muzzle of the barrel to the face of the closed action, bolt or
      cylinder, whichever is applicable.

18 Pa.C.S.A. § 6102.

      In support of his claim, Appellant relies on this Court’s decision in

Commonwealth v. West, 482 A.2d 1339 (Pa. Super. 1984), which described

the length of the weapon’s barrel as an “indispensable element of the charged

offense without proof of which a conviction may not be sustained.” Id. at

1341 (quotations and citation omitted). In West, the police did not recover

the weapon, and thus, there was no weapon admitted into evidence at trial.

Id. at 1342. The only reference to the weapon was made by a witness who

described it as a “toy.” Id. Consequently, we determined that the evidence




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was insufficient to sustain a conviction under Section 6106, and counsel was

ineffective for not pursuing the issue on appeal. Id.

      Appellant is correct that the Commonwealth did not establish the exact

length of the barrel at trial. We nevertheless find this case distinguishable

from West, as numerous witnesses consistently described the gun Appellant

used to shoot King as a small gun or handgun. See N.T., 7/5/16, at 183, 186,

222. Appellant, by his own testimony, stated that he used a “black firearm”

or “handgun” that he carried in his waistband to shoot King. N.T., 7/6/16, at

85-86, 116, 121, 129.       Additionally, Detective Nicholas Lechman, who

investigated the shooting, and Andrew Kehm, the Detective Sergeant

Supervisor of the Bethlehem City Forensic Services Unit, each identified the

shell casings recovered from the scene as casings from a .40 caliber Smith

and Wesson handgun. N.T., 7/5/16, at 106-07, 7/6/16, at 22-23.

      As noted, we view the evidence in the light most favorable to the

Commonwealth as verdict winner.       Sebolka, 205 A.3d at 336-37.       Upon

review, we conclude that Appellant’s description of the handgun he used to

shoot King, read in conjunction with the testimony of the other witnesses who

described Appellant’s gun, allowed the jury to reasonably conclude that the

length of the barrel was less than fifteen inches. See 18 Pa.C.S.A. § 6102.

Thus, there was sufficient evidence to sustain Appellant’s firearms not to be

carried without a license conviction, and Appellant was not prejudiced by Trial

Counsel’s failure to raise the issue in a motion for judgment of acquittal or


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Appellate Counsel’s failure to raise the issue on direct appeal. See Bomar,

104 A.3d at 1188; King, 57 A.3d At 613. Appellant’s second issue is meritless.

       For his third issue, Appellant argues that Trial Counsel was ineffective

for not objecting to the trial court’s jury instruction defining the term firearm.

Specifically, Appellant takes issue with the trial court defining a firearm as

“any semiautomatic .40           caliber    handgun”   because   that definition is

inconsistent with the Pennsylvania Suggested Standard Criminal Jury

Instruction definition.     Appellant’s Brief at 38-39 (quoting N.T., 7/6/16, at

224). Appellant asserts that Trial Counsel should have requested the trial

court use the suggested standard instruction for the offense of firearms not to

be carried without a license because it tracks the language defining a firearm

in Section 6102 of the Pennsylvania Crimes Code.1

       At Appellant’s PCRA hearing, Trial Counsel offered the following

explanation for why he did not object to the trial court’s definition of firearm:

       I make decisions based on what my defense is that I'm trying to
       pursue on behalf of my client. And -- and, you know, I think about
       things like the charge being too long, the length of the charge, the
       jury getting confused, the jury losing focus on what the main issue
       in the case is. All of these things go into my strategic decision
       with respect to instructions as they did in this case.



____________________________________________


1   Appellant contends Trial Counsel should have requested the following
instruction: “A ‘firearm’ is any [pistol or revolver with a barrel less than 15
inches] [shotgun with a barrel less than 18 inches] [rifle with a barrel less
than 16 inches] [or] [any pistol, revolver, rifle, or shotgun with an overall
length of less than 26 inches].” Appellant’s Brief at 39 (quoting Pa. S.S.J.I.
(Crim) § 15.6106 (2016)).

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      And in this case, the focus was self-defense. I thought he had a
      viable -- or self-defense of others I should say. I thought he had
      a viable, solid defense in that regard, a winnable defense, in part
      because the victim in this case, based on my recollection, had a
      significant history of violent behavior, prior assaultive conduct.

      And I do believe that I argued, and, in fact, requested a specific
      instruction on that point with [the trial court], that the
      Commonwealth initially objected to until I presented some case
      law that allowed the prior criminal record of this victim to come
      into the case.

      So the short answer is I was trying to focus in on really the gist of
      the defense. So in terms of some of these other issues that you
      raised, sure, you know, you can say well, there’s not a downside
      for asking for this or that, but I don’t make decisions based on
      that. I make decisions based on what do I think is -- are the most
      important instructions to advance the cause of the [d]efendant
      without the jury being distracted unnecessarily.

N.T., 12/14/18, at 29-30.

      The record reflects that Trial Counsel did not object to the trial court’s

definition of firearm in its instructions to the jury because he did not want to

distract the jury from Appellant’s primary defense theory (defense of others)

by quibbling over an issue that would have little impact. See id. Trial Counsel

further emphasized that he believed the record supported the conclusion that

Appellant was in possession of a handgun that met the definition of a firearm

under Section 6102. Id. at 37; see also supra, p. 11-12. Therefore, we

conclude that Trial Counsel offered a reasonable strategic basis for not

objecting to the trial court’s definition of a firearm and the PCRA court did not

abuse its discretion in rejecting this claim. See Bomar, 104 A.3d at 1188.

Accordingly, Appellant’s third issue is meritless.


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      For his fourth issue, Appellant argues that Trial Counsel was ineffective

for failing challenge the weight of the evidence with respect to each of his

convictions.     In   particular,   Appellant   contends   that   “the    evidence

overwhelmingly demonstrates that he shot King in defense of Lopez.”

Appellant’s Brief at 42.

      Regarding weight of the evidence claims, we have stated:

         A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, 744 A.2d 745,
      751-52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177,
      1189 (Pa. 1994). 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. Widmer, 744
      A.2d at 752. Rather, “the role of the trial judge is to determine
      that notwithstanding all the facts, 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.” Id. (citation omitted). It has
      often been stated that “a new trial should be awarded when the
      jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.” Brown, 648
      A.2d at 1189.

        An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

         Appellate review of a weight claim is a review of the exercise
         of discretion, not of the underlying question of whether the
         verdict is against the weight of the evidence. Brown, 648
         A.2d at 1189.       Because 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. Commonwealth v.
         Farquharson, 354 A.2d 545 (Pa. 1976). One of the least
         assailable reasons for granting or denying a new trial is the

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        lower court’s conviction that the verdict was or was not
        against the weight of the evidence and that a new trial
        should be granted in the interest of justice.

     Widmer, 744 A.2d at 753.

Sebolka, 205 A.3d at 340-41 (citations modified).

     In rejecting Appellant’s ineffectiveness claim relating to Trial Counsel’s

decision not to pursue a weight of the evidence claim, the PCRA court

explained:

     Here, the jury clearly rejected [Appellant]’s view that he shot King
     while acting in defense of Lopez, and that verdict is not
     outweighed by [Appellant]’s self-serving testimony to the
     contrary. As noted above, [Appellant] returned to the scene of
     the prior altercation armed with a gun, bystanders testified that
     [Appellant] advised them to leave just prior to the shooting and
     further testified that [Appellant] was already approaching the
     victim before the altercation between King and Lopez began, and
     lastly, King was shot repeatedly even as he tried to flee. The
     jury’s verdict cannot be considered shocking in light of the
     evidence presented. [Trial Counsel] similarly believed that a
     weight of the evidence challenge would be frivolous and would
     dilute the more meritorious issues raised in his motion. N.T.[,]
     12/14/1[8,] at 31-34.          Consequently, [Appellant] has not
     sustained his burden of demonstrating that [Trial Counsel] was
     ineffective for failing to raise a weight of the evidence challenge.

PCRA Court Opinion, 4/10/19, at 5-6.

     Having reviewed Appellant’s brief, the record, and prevailing law, we

conclude that the PCRA court did not abuse its discretion in determining that

Appellant did not have a meritorious weight of the evidence claim. The PCRA

court’s analysis of this issue accurately summarizes the testimony of the

witnesses who testified at trial, several of whom explicitly stated that they

observed both Appellant and Lopez act as the aggressors when they returned

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to the scene of Appellant’s prior altercation with King. Additionally, the PCRA

court’s analysis and review of the pertinent testimony is consistent with our

discussion of Appellant’s convictions set forth above.       In sum, Appellant’s

weight claim seeks the reweighing of the evidence indicating that Appellant

shot King with a handgun and that he did not do so in defense of Lopez. Were

we to reweigh the evidence in Appellant’s favor, it would violate our standard

of review for weight of the evidence claims. See Sebolka, 205 A.3d at 340-

41. Accordingly, we conclude that Appellant’s fourth issue is meritless, as

Appellant was not prejudiced by Trial Counsel’s failure to raise a weight claim.

See Bomar, 104 A.3d at 1188.

       For his fifth issue, Appellant argues that Trial Counsel was ineffective for

failing to object to the trial court’s jury instructions relating to the duty to

retreat. Appellant contends that Trial Counsel should have objected to this

instruction because it erroneously “suggested to the jury that if the

Commonwealth proved either that [Appellant] could have retreated or have

caused Lopez to have retreated, then the Commonwealth would have

disproved the justification defense[.]”2 Appellant’s Brief at 47 (emphasis in

original).


____________________________________________


2   The trial court instructed the jury:

       The Commonwealth has to prove that [Appellant] knew he could
       avoid the necessity of using deadly force with complete safety and



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       Section 506 of the Crimes Code governs the use of force for the

protection of others and the duty to retreat, and provides:

       (a) General rule.--The use of force upon or toward the person
       of another is justifiable to protect a third person when:

          (1) the actor would be justified under section 505 (relating to
          use of force in self-protection) in using such force to protect
          himself against the injury he believes to be threatened to the
          person whom he seeks to protect;

          (2) under the circumstances as the actor believes them to be,
          the person whom he seeks to protect would be justified in using
          such protective force; and

          (3) the actor believes that his intervention is necessary for the
          protection of such other person.

       (b) Exception.--Notwithstanding subsection (a), the actor is not
       obliged to retreat to any greater extent than the person whom he
       seeks to protect.

18 Pa.C.S.A. § 506.

       Additionally,

       [A]s provided by statute and as interpreted through our case law,
       to establish the defense of self-defense or defense of others it
       must be shown that: a) the slayer or the other he seeks to protect
       was free from fault in provoking or continuing the difficulty which
       resulted in the slaying; b) that the slayer must have reasonably
       believed that he or the other he seeks to protect was in imminent
       danger of death or great bodily harm, and that there was a
       necessity to use such force in order to save himself or the other
       therefrom; and c) the slayer or the other he seeks to protect did
       not violate any duty to retreat or to avoid the danger.
____________________________________________


       could have retreated from himself or caused the other person to
       retreat and failed to do so.

N.T., 7/6/16, at 230-31.


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Commonwealth v. Hornberger, 74 A.3d 279, 284-85 (Pa. Super. 2013)

(citation, emphasis, and brackets omitted).

      When a defendant raises the issue of self-defense or defense of others,

“the Commonwealth bears the burden to disprove such a defense beyond a

reasonable doubt.”    Commonwealth v. Torres, 766 A.2d 342, 345 (Pa.

2001). Importantly,

      “The Commonwealth sustains its burden [of disproving self-
      defense or defense of others] if it proves any of the following: that
      the slayer was not free from fault in provoking or continuing the
      difficulty which resulted in the slaying; that the slayer did not
      reasonably believe that [he or another] was in imminent danger
      of death or great bodily harm, and that it was necessary to kill in
      order to save [himself or another] therefrom; or that the slayer
      violated a duty to retreat or avoid the danger.”

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012).

      We conclude that Appellant was not prejudiced by Trial Counsel’s failure

to object to the Trial Court’s instruction regarding the duty to retreat.     As

established above, the Commonwealth sufficiently proved that Appellant did

not act in defense of Lopez because Appellant was not free from fault in

provoking and continuing the altercation with King that resulted in King’s

shooting or that Lopez was in imminent danger of death or great bodily harm.

See Sepulveda, 55 A.3d at 1124; see supra, p. 6-8.                Consequently,

Appellant’s defense of others theory was unsuccessful. Whether the trial court

properly instructed the jury regarding the duty to retreat was immaterial, and

Appellant was not prejudiced by Trial Counsel’s decision not to challenge the


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instruction. Accordingly, the trial court did not abuse its discretion in rejecting

this ineffective assistance of counsel claim. See Bomar, 104 A.3d at 1188.

      For his sixth issue, Appellant argues Trial Counsel was ineffective for

failing to request that the trial court instruct the jury that Lopez was a corrupt

and polluted source. Appellant maintains he was entitled to a corrupt and

polluted source instruction because Lopez was an accomplice to Appellant’s

crimes.

      With respect to the necessity of a corrupt and polluted source

instruction, this Court has stated:

      It is the rule in Pennsylvania that the testimony of an accomplice
      of a defendant, given at the latter’s trial, comes from a corrupt
      source and is to be carefully scrutinized and accepted with
      caution; it is clear error for the trial judge to refuse to give a
      charge to this effect after being specifically requested to do so.
      The justification for the instruction is that an accomplice witness
      will inculpate others out of a reasonable expectation of leniency.
      An accomplice charge is necessitated not only when the evidence
      requires an inference that the witness was an accomplice, but also
      when it permits that inference. Thus, if the evidence is sufficient
      to present a jury question with respect to whether the
      prosecution’s witness was an accomplice, the defendant is entitled
      to an instruction as to the weight to be given to that witness’s
      testimony. Where, however, there is no evidence that would
      permit the jury to infer that a Commonwealth witness was
      an accomplice, the court may conclude as a matter of law
      that he was not an accomplice and may refuse to give the
      charge. This is so because a trial court is not obliged to instruct
      a jury upon legal principles which have no applicability to the
      presented facts. There must be some relationship between the
      law upon which an instruction is required and the evidence
      presented at trial.

Commonwealth v. Hall, 867 A.2d 619, 630 (Pa. Super. 2005) (emphasis

added, quotations and citation omitted).

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J-S45022-19


      We have defined “an ‘accomplice’ [a]s an individual who knowingly and

voluntarily cooperates with or aids another in the commission of a crime.

Thus, and in following with the prior statement, a showing of mere presence

at the scene of a crime is insufficient to support a conviction: evidence

indicating participation in the crime is required.” Id. (quotation and citations

omitted).

      In rejecting this claim, the PCRA court explained:

      Requesting this charge would have obliterated [Appellant]’s
      justification defense, under which he asserted that he and Lopez
      returned to King’s garage with no nefarious purpose and that
      [Appellant] only acted to protect Lopez from imminent harm by
      King. The “corrupt and polluted source” instruction would clearly
      imply that [Appellant] and Lopez agreed to commit a crime
      together when they decided to return to confront King. [Trial
      Counsel] acted reasonably and in [Appellant]’s interest by not
      requesting this charge be given to the jury.

PCRA Court Opinion, 4/10/19, at 8.

      Upon review of the record and relevant case law, we conclude that the

PCRA court did not abuse its discretion in determining that Appellant was not

prejudiced by Trial Counsel’s failure to request a corrupt and polluted source

instruction. We agree with the trial court’s assessment that had Trial Counsel

requested the instruction, he would have been asking the jury to view Lopez

as Appellant’s accomplice instead of the person Appellant claimed he was

defending. See id. Moreover, both Appellant and Lopez testified that Lopez

was unaware Appellant had brought a handgun with him when they returned

to King’s automobile repair shop.    N.T., 7/5/18, at 263-64, 277-78; N.T.,


                                     - 20 -
J-S45022-19


7/6/16, at 121; see also N.T., 12/14/18, at 38. The record further reflects

that Lopez instructed Appellant to stay in the car while Lopez discussed

Appellant’s repair payment with King. N.T., 7/5/18, at 254; N.T., 7/6/18, at

89, 126-27.     Thus, the evidence supporting the assertion that Lopez was

Appellant’s accomplice in shooting King was tenuous at best. See Hall, 867

A.2d at 630. Accordingly, the PCRA court did not err in determining that Trial

Counsel was not ineffective in relation to this claim. See Bomar, 104 A.3d at

1188.

        Finally, for his last issue, Appellant challenges the legality of his

sentence.    Appellant argues that his aggravated assault conviction should

have merged with his conviction of attempted murder.

        Regarding merger, this Court has stated:

        The preliminary consideration is whether the facts on which both
        offenses are charged constitute one solitary criminal act. If the
        offenses stem from two different criminal acts, a merger analysis
        is not required. If, however, the event constitutes a single
        criminal act, a court must then determine whether or not the two
        convictions should merge. In order for two convictions to merge:
        (1) the crimes must be greater and lesser-included offenses; and
        (2) the crimes charged must be based on the same facts. If the
        crimes are greater and lesser-included offenses and are based on
        the same facts, the court should merge the convictions for
        sentencing; if either prong is not met, however, merger is
        inappropriate.

Commonwealth v. Shank, 883 A.2d 658, 670 (Pa. Super. 2005) (quoting

Commonwealth v. Gatling, 807 A.2d 890, 899 (Pa. 2002) (Opinion

Announcing the Judgment of Court)).




                                     - 21 -
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      With respect to greater and lesser-included offenses, we have further

explained:

      To determine whether offenses are greater and lesser-included
      offenses, we compare the elements of the offenses. If the
      elements of the lesser offense are all included within the elements
      of the greater offense and the greater offense has at least one
      additional element, which is different, then the sentences merge.
      Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994). If
      both crimes require proof of at least one element that the other
      does not, then the sentences do not merge. Id.

Commonwealth v. Johnson, 874 A.2d 66, 70–71 (Pa. Super. 2005).

      “Attempted murder is defined by reading the attempt statute, 18

Pa.C.S.A. § 901(a), in conjunction with the murder statute, 18 Pa.C.S.A. §

2502(a) (murder of the first degree). Accordingly, the elements of attempted

murder are (1) the taking of a substantial step, (2) towards an intentional

killing. See 18 Pa.C.S.A. §§ 901(1), 2502(a).”    Johnson, 874 A.2d at 71.

Here, Appellant was convicted of aggravated assault.           Under Section

2702(a)(4), “[a] person is guilty of aggravated assault if he attempts to cause

or intentionally or knowingly causes bodily injury to another with a deadly

weapon.” 18 Pa.C.S.A. § 2702(a)(4) (emphasis added). Thus, not all of the

elements of aggravated assault – causing bodily injury with a deadly weapon

– are included in the statutory elements of attempted murder.        Critically,

Section 2702(a)(4) requires the use of a deadly weapon, whereas the

elements of attempted murder do not. Compare 18 Pa.C.S.A. §§ 901(a),

2502(a) with 18 Pa.C.S.A. § 2702(a)(4). Therefore, the crime of aggravated

assault under Section 2702(a)(4), which requires causing bodily injury with a

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deadly weapon, is not a lesser-included offense of attempted murder. The

trial court did not err in declining to merge these charges.

      For all of the above reasons, the PCRA court did not abuse its discretion

in dismissing Appellant’s petition seeking collateral relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/19




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