J. S20021/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
BRYAN BARNETT,                            :          No. 482 EDA 2016
                                          :
                         Appellant        :


           Appeal from the Judgment of Sentence, January 29, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0006166-2015


BEFORE: BOWES, J., OTT, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 18, 2017

        Bryan Barnett appeals from the January 29, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County after

his conviction in a waiver trial of aggravated assault, simple assault, and

recklessly endangering another person.1 The trial court sentenced appellant

to 6 to 12 years of imprisonment for the aggravated assault conviction and

imposed no further penalty on the remaining convictions. We affirm.

        The trial court set forth the following factual history gleaned from the

trial transcript:

                     The complainant, Ibin McAffee (Mr. McAffee),
              testified at trial that on March 17, 2015, around
              2:00 a.m., he encountered Appellant and another
              male near the corner of Locust and Juniper Streets,
              in the city and county of Philadelphia, Pennsylvania.

1
    18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), and 2705, respectively.
J. S20021/17


          Mr. McAffee was already acquainted with Appellant,
          who asked Mr. McAffee to get him drugs. When
          Mr. McAffee attempted to call his drug connection,
          Appellant’s companion “got scared” and hastily
          walked away to hail a cab. Appellant followed him.

                Later that morning, Mr. McAffee was walking
          with another male down 13th Street toward Spruce
          Street. In route to buy drugs from someone else,
          Mr. McAffee happened to pass by the building where
          Appellant resided.      According to Mr. McAffee,
          Appellant came from behind and punched him
          multiple times in the face, knocked him to the
          ground, and “stomped” all over his body.
          Throughout the assault, Appellant “just kept saying
          [Mr. McAffee] fucked his money up” and to [sic]
          “[d]on’t let that happen again.”

                After    Appellant    finished   beating    him,
          Mr. McAffee “got high” on crack cocaine and “slept
          for a day and a half.”[Footnote 1] On March 19,
          2015, after the drugs wore off, Mr. McAffee
          presented to the hospital and was diagnosed with
          multiple broken bones in his face that required
          reconstructive surgery. Mr. McAffee was discharged
          on March 22, 2015, and his physician’s discharge
          report states that he suffered a “displaced fracture of
          the right zygoma, a fracture of the lateral and
          anterior wall of the maxillary sinus, a depressed
          fracture of the right orbital wall, and a right nasal
          bone fracture.” Mr. McAffee was “admitted to plastic
          surgery so he could undergo open reduction and
          internal fixation of the fracture,” which involved
          using bone from Mr. McAffee’s skull to stabilize the
          fracture around his eye.

                [Footnote 1] Mr. McAffee had also used
                crack cocaine to get high before the
                assault occurred.

                On March 25, 2015, Mr. McAffee contacted the
          police and gave a statement to Detective James
          Callahan, in which he identified Appellant, by his first
          name, as the person who severely beat him. The


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          next day, March 26, 2015, Mr. McAffee identified
          Appellant in a photo array.[Footnote 2]

                [Footnote 2]     On direct examination,
                Mr. McAffee claimed he did not know
                Appellant “personally” and had briefly
                seen him only “a couple of times before.”
                However,       on       cross-examination
                Mr. McAffee admitted he had prior sexual
                relations with Appellant and they would
                “drink    a    few     beers    together.”
                Mr. McAffee also admitted that his trial
                testimony conflicted in several ways with
                his statement to Detective Callahan. For
                example, he told police that his
                encounter with Appellant was unrelated
                to drugs, but at trial he claimed that
                Appellant had approached him to obtain
                drugs and that Mr. McAffee was seeking
                to purchase drugs at the time of the
                assault.

                 Appellant as well testified at trial and gave a
          contrary version of events. Appellant claimed that
          on the evening of March 16, 2015, he frequented
          several bars with a male named Steve, whom
          Appellant had “just met.” Appellant testified that he
          knew Mr. McAffee, who was a prostitute and “like a
          panhandler guy that’s a drugee [sic].” Appellant
          testified that he and Mr. McAffee had “good
          relationships” in the past and had been sexually
          intimate on several occasions.

                 Appellant   denied    that  he     approached
          Mr. McAffee seeking drugs, and claimed rather that
          Mr. McAffee approached Appellant while he was
          walking around “getting acquainted” with Steve.
          Appellant testified that Mr. McAffee was “rude,”
          “obnoxious,” “interrupting,” and “persisting to be a
          third wheel in our little get-together.” Appellant
          testified that he and his companion walked away
          from Mr. McAffee and “hailed a cab” to go to another
          bar, but that Mr. McAffee followed them and sought
          to join them in the cab. When Appellant attempted


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              to close the cab door before Mr. McAffee could enter,
              Mr. McAffee “kept trying to slam it to jerk it to get
              [Appellant] to unloosen the door.” Appellant “kept
              telling [Mr. McAffee] just leave us alone,” and
              “[e]ven the guy Steve was trying to tell the cab
              driver to pull off[.]” Although the cab driver “finally”
              pulled away, Appellant’s companion said “his night
              [was] ruined” and they decided to part ways.

                    Appellant testified that he exited the cab and
              walked to 13th and Spruce Streets, where he lived in
              the residence of another gentleman. Upon arriving
              at the apartment building’s door, Appellant saw
              Mr. McAffee and another male about 45 feet away.
              Appellant attempted to enter the security code
              numbers in the door’s keypad while Mr. McAffee
              continued walking closer. Appellant testified that he
              now was “on guard” because he knew Mr. McAffee’s
              “history in that area” and “what he’s capable of.”
              Because Mr. McAffee was “walking towards
              [Appellant] real fast,” Appellant backed away from
              the door and prepared to “defend himself.”
              According to Appellant, he and Mr. McAffee then
              exchanged punches and Mr. McAffee fell during the
              encounter.

Trial court opinion, 7/15/16 at 1-4 (record citations omitted).

       The record reflects that following sentencing, appellant did not file

post-sentence motions. Appellant, however, filed a timely notice of appeal

to this court. Appellant also timely complied with the trial court’s order to

file   a   statement   of   matters   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b).      Subsequently, the trial court filed its Rule 1925(a)

opinion.

       Appellant raises the following issues for our review:

              1.    Whether the evidence was insufficient as a
                    matter of law to disprove self-defense beyond


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                   a reasonable doubt where there was
                   uncontroverted evidence that, after an initial
                   altercation between [appellant] and the
                   complaining witness, the complaining witness
                   traveled to the residence wherein [appellant]
                   was    staying   and   thereupon   confronted
                   [appellant] as he was attempting to enter the
                   location[?]

            2.     Whether a new trial must be ordered because
                   the prosecutor violated Doyle v. Ohio, 426
                   U.S. 610 (1976) and its progeny by urging the
                   [c]ourt to disbelieve [appellant’s] testimony
                   because [appellant] never informed police that
                   he was acting in self-defense[?]

Appellant’s brief at 5.

      Our review of a sufficiency of the evidence challenge is well settled:

            The standard we apply . . . is whether viewing all the
            evidence admitted at trial in the light most favorable
            to the verdict winner, there is sufficient evidence to
            enable the fact-finder to find every element of the
            crime beyond a reasonable doubt. In applying [the
            above] test, we may not weigh the evidence and
            substitute our judgment for the fact-finder.         In
            addition, we note that the facts and circumstances
            established by the Commonwealth need not preclude
            every possibility of innocence. Any doubts regarding
            a defendant’s guilt may be resolved by the
            fact-finder unless the evidence is so weak and
            inconclusive that as a matter of law no probability of
            fact    may    be     drawn    from    the    combined
            circumstances. The Commonwealth may sustain its
            burden of proving every element of the crime beyond
            a    reasonable    doubt    by    means     of   wholly
            circumstantial evidence. Moreover, in applying the
            above test, the entire record must be evaluated and
            all evidence actually received must be considered.
            Finally, the 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.


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Commonwealth v. Truong, 36 A.3d 592, 597 (Pa.Super. 2012) (en banc)

(quotation omitted), appeal denied, 57 A.3d 70 (Pa. 2012).

      Where, as here, a defendant claims that self-defense justified his

actions, he bears no burden to prove that claim. See Commonwealth v.

Smith, 97 A.3d 782, 787 (Pa.Super. 2014).              Rather, once any evidence

comes   before     the   fact-finder   to   support   a   self-defense   claim,   the

Commonwealth bears the burden of disproving the claim beyond a

reasonable doubt. See id.

      The defense, found in Section 505 of the Crimes Code, provides, in

relevant part:

            (a)    Use of force justifiable for protection of
                   the person.--The use of force upon or toward
                   another person is justifiable when the actor
                   believes that such force is immediately
                   necessary for the purpose of protecting himself
                   against the use of unlawful force by such other
                   person on the present occasion.

            (b)    Limitations on justifying necessity for use
                   of force.--

            ....

                   (2)    The use of deadly force is not
                          justifiable under this section unless
                          the actor believes that such force is
                          necessary     to    protect       himself
                          against     death,    serious      bodily
                          injury,    kidnapping      or      sexual
                          intercourse compelled by force or
                          threat; nor is it justifiable if:




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                           (i)    the actor, with the intent
                                  of causing death or
                                  serious bodily injury,
                                  provoked the use of
                                  force against himself in
                                  the same encounter; or

                           (ii)   the actor knows that he
                                  can avoid the necessity
                                  of using such force with
                                  complete     safety     by
                                  retreating, except the
                                  actor is not obliged to
                                  retreat from his dwelling
                                  or place of work, unless
                                  he    was    the    initial
                                  aggressor or is assailed
                                  in his place of work by
                                  another person whose
                                  place of work the actor
                                  knows it to be.

18 Pa.C.S.A. § 505(a), (b)(2).            Accordingly, the Commonwealth may

disprove a claim of self-defense if it establishes:        “1) the accused did not

reasonably believe that he was in danger of death or serious bodily injury; or

2) the accused provoked or continued the use of force; or 3) the accused

had a duty to retreat and the retreat was possible with complete safety.”

Smith, 97 A.3d at 787 (quotation omitted).             Further, “the Commonwealth

can negate a self-defense claim by proving the defendant ‘used more force

than reasonably necessary to protect against death or serious bodily injury.’”

Id. at 788, quoting Truong, 36 A.3d at 599.

      Here,    appellant    contends     that   “the   testimony   established   that

[appellant] was attacked by Mr. McAffee just outside of his residence in the



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early morning hours of March 17, 2015” and that appellant was “forced to

defend himself.”   (Appellant’s brief at 14.)    In its opinion, the trial court

acknowledged that “there was conflicting testimony from the complainant

and [a]ppellant,” but as fact-finder, it found that:

            Mr. McAffee’s testimony was materially more credible
            than Appellant’s testimony. Mr. McAffee’s hospital
            discharge report supports that Appellant unleashed a
            severe beating on him. Mr. McAffee suffered several
            fractured bones in his face, was hospitalized, and
            required reconstructive surgery.    The severity of
            Mr. McAffee’s injuries corroborated his testimony
            that Appellant had repeatedly punched and kicked
            him. In contrast to the severe injuries Mr. McAffee
            sustained, Appellant at most suffered mild swelling
            around his eye. Even if the altercation was not
            solely instigated by Appellant, Mr. McAffee’s
            testimony and medical evidence support that
            Appellant “continued” to use force that was far
            beyond what was necessary to defend himself from
            severe bodily injury.   By the same token, after
            knocking Mr. McAffee to the ground, Appellant could
            not possibly have believed that he remained in
            danger of death or serious bodily injury from
            Mr. McAffee, yet he continued to punch and stomp
            the unarmed man rather than retreat to his
            residence.

Trial court opinion, 7/15/16 at 7-8 (record citations and footnote setting

forth supporting testimony omitted).

      Our review of the trial transcript provides ample support for the trial

court’s conclusion that appellant did not reasonably believe that he was in

danger of death or serious bodily injury, and that, despite his duty to

retreat, appellant continued to use force when he had the ability to safely

walk away. Therefore, the Commonwealth satisfied its burden of disproving


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appellant’s claim of self-defense beyond a reasonable doubt. Consequently,

appellant’s sufficiency challenge fails.

        Appellant finally complains that he is entitled to a new trial because

“[d]uring closing argument, the Commonwealth improperly urged the [trial

court] to disbelieve [appellant’s] testimony by pointing to his post-arrest

silence[,]” as follows:

             THE COMMONWEALTH:            [Appellant’s] building is
             brand new. If he has that brand new building that
             surely it has security buttons, has a security camera,
             if all this happened the way [appellant] said it did,
             he tells police on April 2nd when he turns himself in
             this guy is lying on me, please go to the security
             camera, it will prove I was provoked, I was attacked.
             I couldn’t get in my door. He didn’t say a word until
             today. He didn’t bring in any security camera that
             would corroborate his story. He didn’t do anything
             like that.

Appellant’s brief at 18; notes of testimony, 11/24/15 at 86-87.

        In his argument on this issue, appellant relies on Doyle v. Ohio, 426

U.S. 610 (1976), and its progeny to argue that the above comment made by

the Commonwealth in its closing entitles appellant to a new trial. In Doyle,

the United States Supreme Court held that prosecutorial comment on a

defendant’s post-Miranda2 silence may violate due process, and the

prosecutor may not impeach a testifying defendant with his post-Miranda

silence.    Id. at 619.   In Fletcher v. Weir, 455 U.S. 603 (1982), the

High Court    subsequently   held   that   cross-examination   of   a   testifying


2
    Miranda v. Arizona, 384 U.S. 436 (1966).


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defendant regarding post-arrest silence does not violate due process if the

silence occurred prior to the issuance of Miranda warnings.       Id. at 607.

The Pennsylvania Supreme Court rejected Fletcher in Commonwealth v.

Turner, 454 A.2d 537 (Pa. 1982), holding that under Art. I, § 8 of the

Pennsylvania Constitution, Doyle’s protection extended to the entire

post-arrest period, regardless of whether Miranda warnings were given

prior to the defendant’s statements.    Id. at 540. “Both [the Pennsylvania

Supreme] Court and the High Court, however, have determined that there is

no violation of due process when pre-arrest, pre-Miranda silence is used at

trial to impeach a testifying defendant.”     Commonwealth v. Spotz, 870

A.2d 822, 831 (Pa. 2005) (citation omitted).

      Here, although appellant admits that “the prosecutor did not question

[appellant] about his post-arrest silence,” he contends that “the prosecutor

urged the [trial c]ourt to discredit [appellant] because he exercised his right

to remain silent[]” and that “this is equally offensive to the Fifth and

Fourteenth Amendments (as well as Article I, Section 9).” (Appellant’s brief

at 20.) In support, appellant then cites to two cases where reversible error

was found when a prosecutor, during closing in a jury trial, commented on a

defendant’s silence at the time of his arrest.3




3
  Commonwealth v. Easely, 396 A.2d 1198 (Pa. 1979),                        and
Commonwealth v. Stafford, 299 A.2d 590 (Pa. 1973), respectively.


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      Here, appellant was tried in a bench trial. It is axiomatic that when a

trial court sits as fact-finder, it is presumed to know the law, ignore

prejudicial     statements,     and     disregard    inadmissible     evidence.

Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016)

(citation omitted); see also Commonwealth v. Flynn, 460 A.2d 816,

823 n.13 (Pa.Super. 1983) (stating that this court “presume[s] that the

[trial] court, which sat as factfinder in this case, followed its own

instructions[]”). In the trial court’s words:

                    This Court based its verdict on the evidence
              and testimony presented during trial, not on the
              prosecutor’s closing arguments.     This Court was
              aware that a defendant’s post-arrest silence cannot
              be used to impeach his credibility, took note of
              defense counsel’s objections, and was not prejudiced
              against Appellant by the prosecutor’s comments that
              Appellant never informed the police of his version of
              the incident. Accordingly, even if the prosecutor’s
              comments were improper, Appellant suffered no
              prejudice and his appeal on this ground should be
              denied.

Trial court opinion, 7/15/16 at 11 (footnote omitted).        We agree, and

nothing in the certified record before us demonstrates otherwise.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/18/2017


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