J-A17039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NICOLE KELLY,

                            Appellant                No. 1411 EDA 2016


          Appeal from the Judgment of Sentence December 18, 2015
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0002679-2014


BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 16, 2017

        Appellant, Nicole Kelly, appeals from the judgment of sentence

imposed after her bench conviction of aggravated assault, possessing an

instrument of crime, simple assault, and recklessly endangering another

person.1 We affirm.

        We take the following pertinent facts from the trial court’s August 26,

2016 opinion and our independent review of the certified record.            On

September 13, 2013, Complainant, Latoya Johnson, was in the 800 block of

Allegheny Avenue drinking alcohol with Appellant and a friend.       (See N.T.

Trial, 10/13/15, at 11-13). The Complainant became intoxicated. (See id.
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a)(1), 907, 2701, and 2705, respectively.
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at 13-14).     At trial, the Complainant testified that Appellant maced her,

pulled out a knife, and stabbed her several times in the forehead, side, and

stomach, until the Complainant finally passed out. (See id. at 14-16). She

was taken by ambulance to the hospital, where she underwent surgery.

(See id. at 19).     Philadelphia Police Lieutenant Anthony Luca, who was

dispatched to the scene, observed the distraught Complainant, who had

multiple stab wounds and “a lot of blood . . . coming out of the stomach area

and chest area.” (Id. at 55).

      The Commonwealth also introduced the Complainant’s medical records

from Temple University Health Systems into evidence, which identified

fourteen stab wounds to her arms, face, chest, and torso resulting from the

incident.    (See id. at 77-78; see also Exhibit C-10, Temple Operative

Report, at 1). The document also detailed Appellant’s emergency surgery.

(See Exhibit C-10, at 1-2).

      Philadelphia Police     Officer   Michael Szelagowski and his partner

observed Appellant walking southbound down Kensington Avenue, covered

in blood on her hands, clothing and purse. (See Trial, 10/13/15, at 59-60).

Appellant told the officers that she had not done anything wrong, and

offered them money if they would let her go. (See id. at 60). When asked

if she had any weapons, Appellant admitted that she had a knife in her

purse.      (See id.).   The officers recovered the knife, which had an

approximately six-inch blade.       (See id. at 60-61).   Officer Szelagowski


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testified that Appellant had a cut on her hand, and, after she was arrested,

she was taken to the hospital for treatment. (See id. at 64, 71).

       Appellant testified on her own behalf. She stated that she knew the

Complainant    prior   to   the   incident,   and   that   she   accompanied   the

Complainant and two other women to Kellis’ Bar, before going across the

street to drink outside on the sidewalk in front of Jack’s Bar. (See id. at 83-

85).   According to Appellant, when the Complainant entered Jack’s and

began yelling at the bartender for saying that the Complainant had

“mess[ed] with [her] car[,]” the bartender sprayed her with mace. (Id. at

87). Pursuant to Appellant’s version of events, when she then went outside

with the Complainant, and tried to help her, the Complainant began

punching her in the face and bit her hand. (Id. at 87-88). Appellant then

took out a knife and stabbed the Complainant in her side, although she knew

that the Complainant did not have a weapon. (See id. at 90, 96). Appellant

insisted that she did not stab the Complainant in the stomach or head, and

maintained that she only stabbed her in the side five or six times, although

confronted with the Complainant’s medical report which reflected that she

was stabbed fourteen times and required emergency surgery on her

stomach. (See id. at 96-98).

       The trial court found Appellant’s testimony incredible. Specifically, it

observed that Appellant’s “insistence that she only stabbed the victim five or

six times was belied by the medical records. . . .[A] person who believes


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that he or she is justified in employing deadly force would not have fled the

scene and then offered the police money to let her go.” (Trial Court Opinion,

8/26/16, at 6).

       On October 13, 2015, at the conclusion of the one-day trial, the court

convicted Appellant of the foregoing offenses.       On December 18, 2015, it

sentenced her to an aggregate term of incarceration of not less than ten nor

more than twenty years.          On April 27, 2016, the court denied Appellant’s

post-sentence motion. Appellant timely appealed on May 6, 2016.2

       Appellant raises two questions for this Court’s review:

       1. Where the Commonwealth failed to disprove [Appellant’s]
       self-defense claim beyond a reasonable doubt, was the evidence
       insufficient as a matter of law?

       2. Where the [C]omplainant, who had a blood alcohol level of
       .256%, had no recollection as to how or why she was stabbed,
       while the Appellant provided testimony that she acted in self-
       defense, was the verdict against the weight of the evidence and
       did the [trial] [c]ourt abuse its discretion in not granting a new
       trial?

(Appellant’s Brief, at 3).

       In her first issue, Appellant argues that the Commonwealth provided

insufficient evidence to disprove her self-defense claim where the court

based its decision solely on its credibility determination, failed to consider


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2
  Pursuant to the trial court’s order, Appellant filed a timely statement of
errors complained of on appeal on May 26, 2016. See Pa.R.A.P. 1925(b).
The court filed an opinion on August 26, 2016. See Pa.R.A.P. 1925(a).



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the Complainant’s intoxication, and the police did not recover the mace.

(See id. at 13-22). This issue lacks merit.

             In reviewing the sufficiency of the evidence, we must
      determine whether the evidence admitted at trial, and all
      reasonable inferences drawn from that evidence, when viewed in
      the light most favorable to the Commonwealth as verdict winner,
      was sufficient to enable the fact finder to conclude that the
      Commonwealth established all of the elements of the offense
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden by means of wholly circumstantial evidence. Further, the
      trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Reese, 156 A.3d 1250, 1257-58 (Pa. Super. 2017)

(citation omitted).

      Pursuant to section 2702(a)(1) of the Crimes Code, “[a] person is

guilty of aggravated assault if [she] . . . 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[.]” 18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is defined as bodily

injury “which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S.A. § 2301.

      “Where the victim suffers serious bodily injury, the Commonwealth is

not required to prove specific intent.”    Commonwealth v. Patrick, 933

A.2d 1043, 1046 (Pa. Super. 2007), appeal denied, 940 A.2d 364 (Pa. 2007)

(citation omitted).

            The Commonwealth need only prove the defendant acted
      recklessly under circumstances manifesting an extreme

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      indifference to the value of human life. For the degree of
      recklessness contained in the aggravated assault statute to
      occur, the offensive act must be performed under circumstances
      which almost assure that injury or death will ensue.

Id. (citations, brackets, and emphasis omitted).

      The Commonwealth disproves a claim of self-defense “if it establishes

at least one of the following: 1) the accused did not reasonably believe that

[she] was in danger of death or serious bodily injury; or 2) the accused

provoked or continued the use of force; or 3) the accused had a duty to

retreat   and   the   retreat   was    possible    with   complete   safety.”

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citation

omitted). “The Commonwealth can negate a self-defense claim if it proves

the defendant did not reasonably believe [she] was in imminent danger of

death or great bodily injury and it was necessary to use deadly force to save

[herself] from that danger.” Id. (citation omitted).

      To claim self-defense, the defendant must be free from fault in
      provoking or escalating the altercation that led to the offense,
      before the defendant can be excused from using deadly force.
      Likewise, 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 (citations and quotation marks omitted) (emphasis in original).

      Instantly, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, it establishes that Appellant maced and

recklessly stabbed the Complainant in her head and torso fourteen times,

assuring that the Complainant was injured; she could not have reasonably


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believed it was necessary to use deadly force to save herself from serious

bodily injury where she admitted to knowing that the Complainant was

unarmed; and she violated her duty to retreat where they were on a public

street. See id. at 787. Additionally, after the Complainant collapsed on the

ground,    Appellant     fled   the    scene,    instead   of   calling   911.   See

Commonwealth v. Rios, 684 A.2d 1025, 1035 (Pa. 1996), cert. denied,

520 U.S. 1231 (1997) (“When a person commits a crime, knows that [she]

is wanted therefor, and flees or conceals [herself], such conduct is evidence

of consciousness of guilt[.]”) (citation omitted).         Finally, when approached

by the police, Appellant offered the officers money to let her go.

       Based on the foregoing, and our review of the record as a whole, we

conclude that the trial court properly found that the Commonwealth provided

sufficient evidence to establish that Appellant was not acting in self-defense

when she committed the aggravated assault of the Complainant.                    See

Reese, supra at 1257-58; see also Smith, supra at 787; Patrick, supra

at 1046.3 Appellant’s first issue lacks merit.4


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3
  We agree with the Commonwealth’s observation that it was not required to
prove motive because it is not an element of aggravated assault. (See
Commonwealth’s Brief, at 12); see Commonwealth v. Manchas, 633 A.2d
618, 623 (Pa. Super. 1993), appeal denied, 651 A.2d 535 (Pa. 1994) (“While
proof of a motive for the commission of a crime is always relevant, it is not
an essential element and is not necessary to warrant a conviction.”)
(citations omitted).




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      In her second claim, Appellant challenges the weight of the evidence

to support her conviction.         (See Appellant’s Brief, at 22-30).    Specifically,

she maintains that her version of the incident is more reasonable because

the mace was not found and Complainant was inebriated, making her unable

to recall the incident and possibly rendering her violent.              (Id. at 23).

Appellant’s issue does not merit relief.

      “In a bench trial, as in a jury trial, 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.” Commonwealth v. Hughes,


                       _______________________
(Footnote Continued)
4
  We are not legally persuaded by Appellant’s reliance on Commonwealth
v. Torres, 766 A.2d 342 (Pa. 2001), because the case is factually
distinguishable. (See Appellant’s Brief, at 15-16). In Torres, a police
officer testified that, at the scene, the victim told him that Torres struck him
in the head with a wrench; however Torres denied having the tool and the
police did not find one. See Torres, supra at 344-45. Torres testified on
his own behalf that the victim punched him, and when he hit him back, the
victim fell back and hit his head on a rock. See id. at 345. The parties
stipulated that the victim received medical treatment, which revealed that
he had a five to eight centimeter wound on his head; that the victim was on
parole for aggravated assault; and that Torres had a reputation for
peacefulness and honesty. See id. at 344. Based on these facts, the
Supreme Court found that the Commonwealth’s evidence only established
that there was an altercation between the victim and Torres, it offered no
motive for Torres to assault the victim other than self-defense, and that the
medical records were consistent with both the defense and prosecution’s
version of events. See id. at 345. Additionally, the Court found that the
stipulation of the parties as to Torres’ reputation for peacefulness and the
victim’s history of violence supported the defense version of events. See id.
at 345 n.1. This is inapposite to the facts herein where the medical records
directly conflicted with Appellant’s version of events; she fled the scene, thus
supporting an inference of guilt; and attempted to bribe the police officers.



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908 A.2d 924, 928 (Pa. Super. 2006) (citation and internal quotation marks

omitted).

             As an appellate court, we cannot substitute our judgment
       for that of the finder of fact. Therefore, we will reverse a []
       verdict and grant a new trial only where the verdict is so
       contrary to the evidence as to shock one’s sense of justice. A
       verdict is said to be contrary to the evidence such that it shocks
       one’s sense of justice when “the figure of Justice totters on her
       pedestal[.]” . . .

             Furthermore, where the trial court has ruled on the weight
       claim below, an appellate court’s role is not to consider the
       underlying question of whether the verdict is against the weight
       of the evidence. Rather, appellate review is limited to whether
       the trial court palpably abused its discretion in ruling on the
       weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)

(citation omitted).

       Instantly, Appellant again makes the same arguments as she did in

her sufficiency challenge.       (See Appellant’s Brief, at 22-30).   She argues

that the court failed to consider the Complainant’s intoxication, which would

have rendered her violent, and resulted in testimony that was “devoid of any

details whatsoever.” (Appellant’s Brief, at 27; see id. at 25-27). She also

complains that the court’s credibility finding is not enough, on its own, “for

finding evidence sufficient.”5        (Id. at 24).   Finally, she maintains that,



____________________________________________


5
  We reiterate that the trial court did not rely on its credibility assessment
alone, to convict Appellant. (See Trial Ct. Op., at 6).



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Complainant’s testimony that Appellant sprayed her with mace was

“suspect,” where the police did not recover the mace. (Id. at 26).

      However, Appellant misapprehends our standard of review. The trial

court, as finder of fact, “[was] free to believe all, part or none of the

evidence.” Hughes, supra at 928 (citation omitted). It is not the province

of this Court to re-weigh the evidence or make credibility determinations,

but only to consider whether the trial court palpably abused its discretion in

ruling on the weight claim. See Boyd, supra at 1275. Based on our review

of the record, we will not disturb the trial court’s ruling because there was no

palpable abuse of discretion where the court found the Complainant credible,

Appellant incredible, and the evidence supported the verdict.       See id. at

1274-75. Appellant’s second issue lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017




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