J-S68031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

GORDON OLIVER-WILLIAMS

                            Appellant                    No. 2941 EDA 2014


          Appeal from the Judgment of Sentence September 5, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0006727-2012

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

GORDON OLIVER-WILLIAMS

                            Appellant                    No. 2944 EDA 2014


          Appeal from the Judgment of Sentence September 5, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0007931-2012


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                             FILED DECEMBER 28, 2015

       Appellant,    Gordon      Oliver-Williams,   appeals   pro   se1   from   the

September 5, 2014 aggregate judgment of sentence of 11 to 25 years’

____________________________________________
1
 Prior to trial, the trial court conducted an extensive on the record colloquy,
pursuant to Pennsylvania Rule of Criminal Procedure 121, after which, the
(Footnote Continued Next Page)
J-S68031-15


imprisonment, plus 5 years’ probation, imposed after he was found guilty of

two counts of aggravated assault and one count each of possession of an

instrument of a crime (PIC), possession of a weapon, terroristic threats, and

escape.2 After careful review, we affirm.

      The trial court summarized the relevant factual and procedural

background of this case as follows.

                    On May 25, 2011, between 1:00 and 2:00 in
             the morning, the victim, Mr. Anthony Harmon (“Mr.
             Harmon”), was at his home located at 1105 Pine
             Street in Darby, PA.         For reasons that remain
             unknown [Appellant], left a message on Mr.
             Harmon’s phone requesting that Mr. Harmon fight
             him. [Appellant], who lived across the street was a
             close friend of Mr. Harmon prior to this incident and
             on numerous occasions spent time in Mr. Harmon’s
             household with Mr. Harmon and his family. As a
             result of the phone message left by [Appellant], a
             brief argument occurred between [Appellant] and Mr.
             Harmon on the front porch of Mr. Harmon’s house.
             The argument eventually was taken into the
             backyard where Mr. Harmon’s mother, Zina Harmon
             (“Ms. Harmon”), broke up the fight after noticing
             [Appellant] constantly reaching into his back pocket
             in an effort to possibly retrieve something.

                   Subsequently to the first argument, Mr.
             Harmon along with cousin Colin Wesley (“Mr.
             Wesley”) left the property for about an hour. Upon
             returning, Mr. Harmon noticed [Appellant] walking
                       _______________________
(Footnote Continued)

trial court permitted Appellant to proceed pro se, and appointed Thomas
Dreyer, Esquire as Appellant’s standby counsel.     See generally N.T.,
7/29/13, at 5-30.
2
 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 907(a), 907(b), 2706(a)(1), and
5121(a), respectively.



                                            -2-
J-S68031-15


          outside Mr. Harmon’s house shouting insults at Mr.
          Harmon’s family who were outside on the porch.
          [Appellant] again reiterated his demand to fight Mr.
          Harmon and suggested that the two walk down the
          street away from Mr. Harmon’s house to do so. Mr.
          Harmon and Mr. Wesley followed [Appellant] about
          two houses down from Mr. Harmon’s property, where
          [Appellant] proceeded to stab Mr. Harmon in the
          chest with a pocketknife. Mr. Harmon did not see
          the weapon on [Appellant] prior to being stabbed nor
          did Mr. Harmon or Mr. Wesley have any weapons on
          their persons.

                Following the stabbing, Mr. Wesley and Mr.
          Harmon’s sister, Ms. Brittany Robinson (“Ms.
          Robinson”), gave chase of [Appellant] who fled the
          scene.     Mr. Harmon proceeded to pull the
          pocketknife out of his chest and placed it in his
          pocket. Mr. Harmon then attempted to drive himself
          to the hospital. Shortly after getting behind the
          wheel of the car Mr. Harmon crashed the vehicle into
          a pole.

                 Officer Brian Evans …, an [o]fficer of the Darby
          Borough Police Department, arrived at the scene of
          the accident and testified that when he arrived Mr.
          Harmon was lying face down outside the car. Officer
          Evans had an opportunity to speak with Mr. Harmon
          who informed Officer Evans that he had been
          stabbed prior to the car accident. Officer Evans
          noticed that Mr. Harmon’s shirt was covered with a
          large amount of blood.       Prior to the ambulance
          arriving, Officer Evans removed a knife from Mr.
          Harmon’s pocket, which Officer Evans believes was
          the knife that was used to stab Mr. Harmon.

                An ambulance eventually arrived at the scene
          and took Mr. Harmon to University of Pennsylvania
          Hospital. Dr. Patrick Kim (“Dr. Kim”), attending
          surgeon at University of Pennsylvania Hospital,
          treated Mr. Harmon upon arrival. Dr. Kim testified
          that when Mr. Harmon was brought to him[,]Mr.
          Harmon was in [h]emorrhagic shock. Hemorrhagic
          shock is a condition of life-threatening bleeding,

                                   -3-
J-S68031-15


          which causes changes in vital signs.          Dr. Kim
          determined that the wound to the chest was the
          cause of Mr. Harmon’s hemorrhagic shock. Dr. Kim
          also testified that the wound to the chest of Mr.
          Harmon was in his expert opinion consistent with
          that of a stab wound. Dr. Kim further stated that
          [h]emorrhagic shock could be a life-threatening
          event without proper or immediate treatment. Dr.
          Kim placed a tube in Mr. Harmon’s chest in order to
          remove the blood that had built up as a result of the
          stab wound. After the tube failed to adequately
          drain out the necessary amount of blood, Dr. Kim
          determined that an emergency surgery known as a
          thoracotomy needed to be performed. The surgery
          was a success and Mr. Harmon proceeded to go
          through a full recovery. Dr. Kim indicated that an
          ethanol test was given to Mr. Harmon at 2:28 am on
          [May 25, 2011]. The results of the test found that
          Mr. Harmon had a blood alcohol content of .04,
          which although that reading various [sic] from
          person to person, is still well below the legal limit of
          intoxication while driving.

                 Detective Brian Pitts …, a [d]etective [c]orporal
          for the Darby Borough Police Department, testified
          that he was assigned to investigate the incident that
          occurred between Mr. Harmon and [Appellant].
          Detective Pitts stated that on May 25, 2011 he met
          with witnesses Champella Harmon, Ms. Harmon, and
          Ms. Robinson at their place of residence. Detective
          Pitts took each witness separately into the kitchen of
          Mr. Harmon’s resident and presented each witness
          with a photo array of possible suspects in the
          stabbing.    Each witness identified the photo of
          [Appellant] in the photo array as being the individual
          who stabbed Mr. Harmon. All photos the witnesses
          pointed out as being the suspect were signed and
          dated by the witness. The following day, May 26,
          2011, Detective Pitts went to the University of
          Pennsylvania [H]ospital and presented Mr. Harmon
          with the same photo array. Mr. Harmon identified
          [Appellant] as being the individual that stabbed him.
          Mr. Harmon signed and dated the photo after
          identifying [Appellant] as the suspect.

                                   -4-
J-S68031-15



                  On June 17, 2011, a call was placed to the
            Darby Police Department that [Appellant], who was
            in hiding, was currently at his place of residence.
            One of the responding officers, Officer Jeffrey
            Bevenour …, testified that a perimeter was set up
            around [Appellant’s] residence. After displaying the
            arrest warrant to [Appellant’s] mother, Leslie
            Williams (“Ms. Williams”), the officers checked inside
            [Appellant’s] house. It was eventually determined
            that [Appellant] was no longer there.

                   On April 3, 2012, officers were again
            dispatched to [Appellant’s] resident in response to a
            domestic dispute. Officer Anthony Salvatore … of
            the Darby Borough Police Department responded to
            the dispute. Although Officer Salvatore was not the
            first officer on the scene, he was in full radio contact
            with those who were. Officer Salvatore testified that
            fellow Darby Police Officer Falkenstine radioed to
            other officers that upon arriving at the scene Officer
            Falkenstine was directed to the back door of
            [Appellant’s] residence by Ms. Williams.           After
            arriving at the back door, Officer Falkenstine noticed
            [Appellant] run out.       Officer Falkenstine further
            added that he saw [Appellant] jumping over
            numerous fences eventually disappearing onto the
            railroad tracks beyond one of the fences.
            Subsequent to the information being broadcasted
            over the police radio, Officer Salvatore along with
            other officers[,] set up a perimeter to locate
            [Appellant].      It was eventually determined that
            [Appellant] could not be found.

                  [Appellant] was eventually arrested on June
            29, 2012, over a year after the initial stabbing
            incident with Mr. Harmon.

Trial Court Opinion, 3/31/15, at 5-9.

      On October 25, 2012, the Commonwealth filed an information at

docket number CP-23-CR-6727-2012, charging Appellant with three counts


                                     -5-
J-S68031-15


of simple assault, two counts of aggravated assault and one count each of

attempted murder, PIC, possession of a weapon, terroristic threats, and

recklessly endangering another person (REAP).3       On January 2, 2013, the

Commonwealth filed an information charging Appellant with one count of

escape at docket number CP-23-CR-7931-2012.4 Appellant proceeded to a

bench trial on June 17, 2014, at the conclusion of which, the trial court

found Appellant guilty of two counts of aggravated assault and one count

each of PIC, possession of a weapon, terroristic threats, and escape.       The

trial court found Appellant not guilty of attempted murder and the simple

assault and REAP charges were withdrawn. On September 5, 2014, the trial

court imposed an aggregate sentence of 11 to 25 years’ imprisonment, plus

5 years’ probation.5 On September 10, 2014, Appellant filed a timely post-



____________________________________________
3
  18 Pa.C.S.A. §§ 2701(a)(1), 2701(a)(2), 2701(a)(3), 2702(a)(1),
2702(a)(4), 901(a), 907(a), 907(b), 2706(a)(1), and 2705, respectively.
4
  Although not directly at issue in this appeal, we note the factual allegations
surrounding the escape charge were that Appellant “was able to get away
from the constables who were escorting him to and from the [preliminary]
hearing[]” scheduled for the remaining charges at issue in this appeal. N.T.,
6/17/14, at 33.
5
   Specifically, the trial court sentenced Appellant to 9 to 20 years’
imprisonment for one count of aggravated assault, five years’ probation for
the other aggravated assault charge, one and one-half to three years’
imprisonment for PIC, one to two years’ imprisonment for terroristic threats,
and two to five years’ imprisonment for escape. The trial court imposed no
further penalty for possession of a weapon. The sentences of incarceration
for aggravated assault, PIC and terroristic threats were to run concurrently
(Footnote Continued Next Page)


                                           -6-
J-S68031-15


sentence motion, which the trial court denied on September 22, 2014. On

October 6, 2014, Appellant filed a timely notice of appeal.6

      On appeal, Appellant raises the following issues for our review.

             [1.]      Did the trial court erroneously allow the
                       Commonwealth to violate [Appellant’s] Sixth
                       Amendment right to a speedy trial?

             [2.]      Did the trial court erroneously allow the
                       Commonwealth    to    violate   [Appellant’s]
                       Fourteenth Amendment [rights under the Equal
                       Protection and Privileges and Immunities
                       Clauses?]

             [3.]      Did the trial court erroneously allow the
                       Commonwealth to [deny Appellant’s c]laim of
                       self-defense where [Appellant] was acting only
                       with force that was equal to the force of the
                       attackers [sic] [?]

             [4.]      Did   the    trial court    erroneously    deny
                       [Appellant’s] motion [in limine] with respect to
                       the weapon seized … [w]here the weapon that
                       was charged to [Appellant] was found in
                       someone else [sic] possession[?]

             [5.]      Did the trial court erroneously allow the
                       Commonwealth      to    violate   [Appellant’s]
                       [m]otion to [s]uppress [p]hysical [e]vidence
                       where [Appellant’s] fingerprints was [sic] not
                       on the weapon would be in favor to the
                       defense?


                       _______________________
(Footnote Continued)

to each other. The sentence for escape and probationary sentence for
aggravated assault were to run consecutively to the balance.
6
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                            -7-
J-S68031-15


            [6.]    Did the trial court erroneously allow the
                    Commonwealth to violate [Appellant’s] request
                    for a line-up where [Appellant] has a right to a
                    line-up[?]

Appellant’s Brief at 4.

      At the outset, we elect to address Appellant’s second, fourth, and fifth

issues together, as we dispose of all three on the same ground.           In his

second issue, Appellant avers that the Commonwealth violated the Privileges

and Immunities Clause of Section 1 of the Fourteenth Amendment to the

Federal Constitution. Id. at 20. Appellant argues in his fourth issue that the

trial court erred in denying his motion in limine to exclude a weapon found in

the victim’s possession. Id. at 4. In his fifth issue, Appellant argues that

the trial court erred in not suppressing said weapon. Id.

      Generally, appellate briefs are required to conform to the Rules of

Appellate Procedure. See generally Pa.R.A.P. 2101. While this Court will

construe pro se materials liberally, “pro se status confers no special benefit

on an appellant.”     In re Ullman, 995 A.2d 1207, 1211-1212 (Pa. Super.

2010) (citation omitted), appeal denied, 20 A.3d 489 (Pa. 2011).            Rule

2119(a) requires that “[t]he argument shall be divided into as many parts as

there are questions to be argued; and shall have at the head of each part--in

distinctive type or in type distinctively displayed--the particular point treated

therein, followed by such discussion and citation of authorities as are

deemed pertinent.”        Pa.R.A.P. 2119(a).   Additionally, this Court will not

consider an argument where an appellant fails to cite to any legal authority

                                       -8-
J-S68031-15


or otherwise develop the issue.      Commonwealth v. Johnson, 985 A.2d

915, 924 (Pa. 2009), cert. denied, Johnson v. Pennsylvania, 562 U.S. 906

(2010); see also, e.g., In re Estate of Whitley, 50 A.3d 203, 209 (Pa.

Super. 2012) (stating, “[f]ailure to cite relevant legal authority constitutes

waiver of the claim on appeal[]”) (citation omitted), appeal denied, 69 A.3d

603 (Pa. 2013).

       In this case, Appellant has failed to provide any cogent argument as to

how the Commonwealth violated the Privileges and Immunities Clause,

abused its discretion in denying his motion in limine, or in not suppressing

the weapon found on the victim’s person.        Appellant has not explained or

developed any argument as to how any of these issues entitles him to a new

trial. Based on these considerations, we deem these three issues waived for

want of development. See id.

       Turning to his first issue, Appellant avers that the trial court erred in

denying his motion to dismiss the charges with prejudice under Pennsylvania

Rule   of   Criminal   Procedure   600.     Appellant’s   Brief   at   7-8.   The

Commonwealth counters that the majority of any delays in proceeding to

trial were caused by Appellant and that his speedy trial rights were not

violated. Commonwealth’s Brief at 12.

       “When reviewing a trial court’s decision in a Rule 600 case, an

appellate court will reverse only if the trial court abused its discretion.”

Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).


                                      -9-
J-S68031-15


           An abuse of discretion is not merely an error of
           judgment, but if in reaching a conclusion the law is
           overridden or misapplied or the judgment exercised
           is manifestly unreasonable, or the result of partiality,
           prejudice, bias, or ill will, as shown by the evidence
           or the record, discretion is abused.

                 The proper scope of review … is limited to the
           evidence on the record of the Rule 600 evidentiary
           hearing, and the findings of the trial court. An
           appellate court must view the facts in the light most
           favorable to the prevailing party.

                                      …

                  So long as there has been no misconduct on
           the part of the Commonwealth in an effort to evade
           the fundamental speedy trial rights of an accused,
           Rule 600 must be construed in a manner consistent
           with society’s right to punish and deter crime. In
           considering these matters …, courts must carefully
           factor into the ultimate equation not only the
           prerogatives of the individual accused, but the
           collective right of the community to vigorous law
           enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en

banc) (citations omitted), affirmed, 44 A.3d 655 (Pa. 2012).

     Courts utilize an initial three-step analysis to determine whether Rule

600 requires dismissal of the charges against a defendant.

                 The first step in determining whether a
           technical violation of Rule 600 […] has occurred is to
           calculate the “mechanical run date.” The mechanical
           run date is the date by which trial must commence
           under the relevant procedural rule.             [T]he
           mechanical run date is ascertained by counting the
           number of days from the triggering event - e.g., the
           date on which … the criminal complaint was filed - to
           the date on which trial must commence under Rule
           [600].

                                    - 10 -
J-S68031-15



Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal

citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second

step, we must “determine whether any excludable time exists pursuant to

Rule 600(C).”    Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa.

Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third

step, we add all excludable or excusable time to the mechanical run date,

which provides the adjusted run date. Id.

     Furthermore, delays not attributable to a defendant but where the

Commonwealth is found to have acted with due diligence in attempting to

commence a timely trial but was prevented by circumstances beyond its

control, is considered excusable time and likewise added to the mechanical

run date.   Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super.

2004).

            “Due-diligence is a fact-specific concept that is
            determined on a case-by-case basis. Due diligence
            does not require perfect vigilance and punctilious
            care, but rather a showing by the Commonwealth
            that a reasonable effort has been put forth.”
            Commonwealth v. Booze, 953 A.2d 1263, 1273
            (Pa. Super. 2008) (quotations and quotation marks
            omitted). “Judicial delay may justify postponing trial
            beyond the adjusted run date if the Commonwealth
            was prepared to commence trial prior to the
            expiration of the mandatory period but the court was
            unavailable because of ‘scheduling difficulties and
            the like.’”     Preston, [supra] at 14 (citation
            omitted).




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J-S68031-15


Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012), appeal

denied, 63 A.3d 1245 (Pa. 2013). Any time prior to trial, a defendant may

move the trial court for dismissal of the charges if the Commonwealth has

violated the Rule. Pa.R.Crim.P. 600(G).7

       In this case, the Commonwealth filed its criminal complaint on May 25,

2011, rendering the mechanical run date May 25, 2012. Between the dates

of May 25, 2011 and June 29, 2012, Appellant was unable to be located by

police. Trial Court Opinion, 3/31/15, at 12.

              Officers exercised continuous due diligence in an
              effort to locate [Appellant] by consistently patrolling
              the area around [Appellant]’s residence. There was
              no additional information given to the officers to aid
              in their search of [Appellant] except for [Appellant]’s
              home address. Eventually, [Appellant] was arrested
              on June 29, 2012, over a year after the criminal
              complaint was filed.

Id. As Appellant does not challenge the Commonwealth’s due diligence in

apprehending him, this totals an excludable delay of 405 days.           See

Commonwealth v. Miskovitch, 64 A.3d 672, 678 (Pa. Super. 2013)

(stating that Rule 600 excludes time where “the defendant could not be

apprehended because his or her whereabouts were unknown and could not

be determined by due diligence[]”), appeal denied, 78 A.3d 1090 (Pa.


____________________________________________
7
  On July 1, 2013, a new version of Rule 600 took effect. However, as the
criminal complaint was filed in this case before July 1, 2013, we utilize the
former version of Rule 600. See generally Commonwealth v. Roles, 116
A.3d 122, 124 n.4 (Pa. Super. 2015).



                                          - 12 -
J-S68031-15


2013); Pa.R.Crim.P. 600(C)(1). We further note that Appellant waived his

Rule 600 rights due to continuances he requested from January 7, 2013 until

June 7, 2013, adding another 151 days of excludable time.               Id. at

600(C)(2). Appellant does not dispute this time period either in his brief.

        Instantly, Appellant filed his Rule 600 motion to dismiss on July 9,

2013, which the trial court denied on July 29, 2013.8 As noted above, the

mechanical run date for Rule 600 purposes was May 25, 2012.           From the

two above-mentioned time periods, we have identified, at a minimum, 556

days of excludable time, which results in an adjusted run date of October 18,

2013.     As a result, Appellant’s Rule 600 rights were not violated when

Appellant filed his motion to dismiss the charges and the trial court correctly

denied Appellant’s July 9, 2013 motion. See Bradford, supra.

        In his next issue, Appellant argues that the evidence was insufficient

to convict him of aggravated assault because the Commonwealth failed to

disprove self-defense beyond a reasonable doubt.       Appellant’s Brief at 11.

The Commonwealth counters that the evidence overwhelmingly showed that

Appellant was the initial aggressor. Commonwealth’s Brief at 18. We begin

by noting our well-settled standard of review. “In reviewing the sufficiency

of the evidence, we consider whether the evidence presented at trial, and all
____________________________________________
8
  The certified record reflects that Appellant filed multiple motions to dismiss
the charges against him. The only Rule 600 motion that is referenced in
Appellant’s brief to this Court is his July 9, 2013 motion. Appellant’s Brief at
9. Therefore, we confine our review to this motion.



                                          - 13 -
J-S68031-15


reasonable inferences drawn therefrom, viewed in a light most favorable to

the Commonwealth as the verdict winner, support the [finder of fact] verdict

beyond a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55,

66 (Pa. 2014) (citation omitted), cert. denied, Patterson v. Pennsylvania,

135 S. Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly

circumstantial evidence and 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.” Commonwealth v. Watley, 81 A.3d 108, 113

(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),

appeal denied, 95 A.3d 277 (Pa. 2014).       As an appellate court, we must

review “the entire record … and all evidence actually received[.]”        Id.

(internal quotation marks and citation omitted).    “[T]he trier 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.” Id. (citation

omitted). “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied,

Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      In this case, the offense at issue is aggravated assault, the statute

governing said offense provides in relevant part, as follows.

            § 2702. Aggravated assault


                                    - 14 -
J-S68031-15


            (a) Offense defined.--A          person   is   guilty   of
            aggravated assault if he:

                  (1) attempts to cause serious bodily injury to
                  another, or causes such injury intentionally,
                  knowingly or recklessly under circumstances
                  manifesting extreme indifference to the value
                  of human life;

                                      …

                  (4) attempts to cause or intentionally or
                  knowingly causes bodily injury to another with
                  a deadly weapon;

                                      …

            (b) Grading.--Aggravated assault under subsection
            (a)(1), (2) and (9) is a felony of the first degree.
            Aggravated assault under subsection (a)(3), (4), (5),
            (6), (7) and (8) is a felony of the second degree.

18 Pa.C.S.A. § 2702.

      We note that if a defendant presents evidence raising an issue of self-

defense, the Commonwealth has the burden to disprove it beyond a

reasonable doubt.   Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa.

2011), cert. denied, Houser v. Pennsylvania, 132 S. Ct. 1715 (2012). The

Commonwealth meets that burden if it proves any one of the following: (1)

the defendant was not free from fault in provoking or continuing the conflict

that resulted in the killing; (2) the defendant did not reasonably believe he

was in imminent danger of death or serious bodily injury, and it was not

necessary to kill in order to avoid that danger; or (3) the defendant violated

a duty to retreat or avoid the danger.       Commonwealth v. Mouzon, 53


                                    - 15 -
J-S68031-15


A.3d 738, 741 (Pa. 2012).       Further, “[a]lthough the Commonwealth is

required to disprove a claim of self-defense … a jury is not required to

believe the testimony of the defendant who raises the claim.”          Houser,

supra    (quotation   marks   and   citation     omitted).   Nonetheless,   “the

Commonwealth cannot sustain its burden of proof solely on the fact finder’s

disbelief of the defendant’s testimony.”       Commonwealth v. Torres, 766

A.2d 342, 345 (Pa. 2001).      Accordingly, we must determine whether the

affirmative evidence presented by the Commonwealth was sufficient to

disprove Appellant’s claim of self-defense.

       The Commonwealth presented the testimony of Harmon, that on May

25, 2011, Appellant left a message on his phone asking for Harmon to fight

him.    N.T., 6/17/14, at 50-51.     Harmon did not know the reason why

Appellant wished to fight.    Id. at 51.     Harmon called Appellant back and

Appellant reiterated his desire to fight Harmon and informed him that he was

coming over to Harmon’s residence.         Id.    Harmon testified that after he

hung up, he went downstairs, looked out the window and saw Appellant

coming up to his front porch.       Id.      Harmon came outside and again

Appellant asked to fight. Id. After leaving his residence for an hour to cool

off, Harmon came back and Appellant was still outside requesting Harmon to

fight him, and was “calling [Harmon’s] mom [and sisters] all sorts of

names[.]” Id. at 54, 55. Harmon acquiesced and Appellant told him to walk

down the street. Id. at 55. Appellant and Harmon walked two houses down


                                    - 16 -
J-S68031-15


and according to Harmon, “[w]e squared up and [Appellant] just stabbed

me.” Id.

      The trial court concluded the Commonwealth disproved Appellant’s

claim of self-defense based on the following.

                   In the instant case, [Appellant] initiated the
            confrontation between himself and Mr. Harmon.
            [Appellant] called Mr. Harmon’s phone saying that he
            wanted to fight him. In addition, [Appellant] walked
            across the street from his residence to the residence
            of Mr. Harmon[,] shouting for Mr. Harmon to come
            outside and fight him. Further, [Appellant] shouted
            insults at Mr. Harmon’s family in an effort to give Mr.
            Harmon an incentive to fight. Therefore, [Appellant]
            was the sole aggressor and the plea of self-defense
            cannot be established were [sic] [Appellant was] the
            aggressor.

Trial Court Opinion, 3/31/15, at 10.

      After careful review of the certified record, we conclude the record

supports the trial court’s legal conclusion. Our Supreme Court has held that

for sufficiency purposes the testimony of one eyewitness alone is sufficient

evidence to sustain a conviction.        Commonwealth v. Brown, 52 A.3d

1139, 1165 (Pa. 2012); Commonwealth v. Duncan, 373 A.2d 1051, 1054

(Pa. 1977). Harmon testified that Appellant made several requests to fight

him, Appellant left his own home and came to Harmon’s residence, remained

there and shouted insults towards Harmon’s family, all in an effort to get

Harmon to agree to fight him.     N.T., 6/17/14, at 50-55.    Based on these

considerations,   we   conclude   the    Commonwealth    presented    sufficient




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affirmative evidence in order to disprove Appellant’s claim of self-defense, as

the evidence was sufficient to show that Appellant was the initial aggressor.

      In his next issue, Appellant avers that he was entitled to a line-up

procedure.   Appellant’s Brief at 15.   Appellant requested a line up on the

record during a hearing on April 7, 2014.      N.T., 4/7/14, at 13.    The trial

court denied the motion during the same. Id. at 14. The Commonwealth

counters that identity was not an issue in this case; therefore, the trial court

was not required to order a line-up. Commonwealth’s Brief at 22.

             The grant or denial of a request for a lineup is within
             the sound discretion of the trial court, and such a
             decision will not be disturbed on appeal absent an
             abuse of discretion. Commonwealth v. Rush, 562
             A.2d 285 (Pa. Super. 1989). A criminal defendant
             has    no    constitutional   right   to   a    lineup.
             Commonwealth v. Lark, 462 A.2d 1329 (Pa.
             Super. 1983), aff'd, 477 A.2d 857 (Pa. 1984).
             “[O]nly in those cases where an identification lacking
             a strong indicia of reliability is the sole evidence
             against the defendant should a defendant’s timely
             request for a lineup be granted.” Commonwealth
             v. Beverly, 547 A.2d 766, 767 (Pa. Super. 1988),
             appeal denied, 564 A.2d 1259 (Pa. 1989) citing
             Commonwealth v. Sexton, 400 A.2d 1289 (Pa.
             1979).

Commonwealth v. Blassingale, 581 A.2d 183, 190 (Pa. Super. 1990)

(parallel citations omitted).

      In the case sub judice, Harmon testified that he had known Appellant

for years leading up to the incident on May 25, 2011. N.T., 6/17/14, at 50.

Harmon testified that he and Appellant were good friends, and Appellant was

on friendly terms with Harmon’s family.        Id.   Harmon’s sister, Brittany

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Robinson, also testified as having a “close friendship” with Appellant. Id. at

89. Harmon’s mother, Zina Harmon, testified that she knew Appellant well,

and he would even have meals at their home.               Id. at 122.       Ms. Harmon

testified that her son and Appellant were in her house “all the time.” Id.

       The trial court concluded that identity was not an issue in this case as

“[t]he record reflect[ed] that both the victim, Mr. Harmon, and his family

were extremely familiar with [Appellant] prior to this incident.” Trial Court

Opinion, 3/31/15, at 14.         Our review of the record reflects that the trial

court’s conclusion is amply supported by the trial testimony. Therefore, this

did not taint the in-court identifications of Appellant, and the trial court did

not abuse its discretion in denying Appellant’s request for a line-up.             See

Blassingale, supra.

       Finally, we address Appellant’s claim that the trial court abused its

discretion in sentencing by failing to consider the sentencing guidelines and

factors enumerated in Section 9721 of the Sentencing Code.9 At the outset,

we note that this issue pertains to the discretionary aspects of his sentence.

It is axiomatic that in this Commonwealth, “[t]here is no absolute right to

appeal    when     challenging     the    discretionary   aspect   of   a    sentence.”

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation


____________________________________________
9
 We recognize that Appellant did not include this issue in his statement of
questions presented as required by Rule 2116. See generally Pa.R.A.P.
2116(b). However, we decline to find waiver on this basis.



                                          - 19 -
J-S68031-15


omitted).       When an appellant forwards an argument pertaining to the

discretionary aspects of the sentence, this Court considers such an argument

to be a petition for permission to appeal. Commonwealth v. Buterbaugh,

91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal

denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this

Court determines that there is a substantial question that the sentence was

not appropriate under the sentencing code.” Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks

and citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether     a     petition   for   permission     to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

                (1) [W]hether appellant has filed a timely notice of
                appeal, Pa.R.A.P. 902, 903; (2) whether the issue
                was properly preserved at sentencing or in a motion
                to reconsider and modify sentence, Pa.R.Crim.P.
                [720]; (3) whether appellant’s brief has a fatal
                defect, Pa.R.A.P. 2119(f); and (4) whether there is a
                substantial question that the sentence appealed from
                is not appropriate under the Sentencing Code, 42
                [Pa.C.S.A.] § 9781(b).

Id.




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J-S68031-15


     In the case sub judice, we note that Appellant has failed to include a

Rule 2119(f) statement in his brief, and the Commonwealth has noted its

objection. Commonwealth’s Brief at 24-25. “If a defendant fails to include

an issue in his Rule 2119(f) statement, and the Commonwealth objects, then

… this Court may not review the claim.”    Commonwealth v. Karns, 50

A.3d 158, 166 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).

As the Commonwealth has lodged its objection, we deny Appellant’s petition

for permission to appeal the discretionary aspects of his sentence.     See

Trinidad, supra.

     Based on the foregoing, we conclude all of Appellant’s issues on appeal

are either waived or devoid of merit.        Accordingly, the trial court’s

September 5, 2014 judgment of sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2015




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