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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
LEANNE MICHELLE APPLEGATE,                 :          No. 1970 MDA 2018

                          Appellant        :


      Appeal from the Judgment of Sentence Entered September 24, 2018,
               in the Court of Common Pleas of Lycoming County
                Criminal Division at No. CP-41-CR-0001106-2016


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JULY 08, 2020

        Leanne Michelle Applegate appeals from the September 24, 2018

judgment of sentence entered in the Court of Common Pleas of Lycoming

County after she was convicted in a non-jury trial of one count of persons not

to possess a firearm.1 The trial court imposed a sentence of 11-23 months’

imprisonment, to be followed by three years’ probation. After careful review,

we affirm the judgment of sentence.

        The trial court provided the following factual history:

              During the night on March 24, 2016, [appellant] was
              at her residence and her six children were asleep
              inside. [Appellant’s] husband had been out drinking
              with his friend, Justin Hill, and Hill’s fiancé,
              Amanda McEwen.         Mr. Hill drove [appellant’s]
              husband home from the bar in the husband’s truck,
              while Ms. McEwen drove a van to the residence so that

1   18 Pa.C.S.A. § 6105(a).
J. S10040/20


          Mr. Hill and Ms. McEwen could drive home. Mr. Hill
          parked the truck in the driveway away from the
          residence, and Ms. McEwen parked the van in the
          driveway near the residence behind [appellant’s]
          vehicle. Mr. Hill and [appellant’s] husband sat in the
          truck talking. Ms. McEwen beeped the horn of the
          van, but they continued to sit in the truck and talk.
          Ms. McEwen began to cross [appellant’s] yard toward
          the truck. [Appellant] heard the horn beeping and
          exited her residence. Due to a previous altercation
          between Ms. McEwen and [appellant, appellant] told
          Ms. McEwen to get off the property and an argument
          ensued. [Appellant] returned inside the residence.
          Ms. McEwen proceeded to the truck, spoke to the
          men, and then walked back across the yard to the
          passenger seat of the van. The men walked to the
          van and continued their conversation with Mr. Hill in
          the driver’s seat and [appellant’s] husband standing
          at or near the driver’s door. [Appellant] exited the
          residence with a handgun in her hand. She yelled at
          Ms. McEwen and waved the handgun at her.
          Ms. McEwen exited the van and yelled back. When
          [Appellant] turned around to return to her house,
          Ms. McEwen followed her and pushed her in the back.
          At that point, [appellant’s] husband escorted
          [appellant] back to the house and Ms. McEwen and
          Mr. Hill left in the van. The next morning Ms. McEwen
          called the police.

          On May 5, 2016, the Pennsylvania State Police filed a
          criminal complaint against [appellant], charging her
          with persons not to possess a firearm and recklessly
          endangering another person [(“REAP”)].

          Trial was scheduled for June 14-15, 2018. On May 30,
          2018, the Commonwealth filed a motion in limine to
          preclude [appellant] from making any reference to
          self-defense or justification, as the facts that would be
          presented at trial would not be sufficient to establish
          that defense or to warrant a jury instruction regarding
          that defense. The [trial] court held an argument on
          June 5, 2018 on the Commonwealth’s motion. In a
          decision dated June 7, 2018 and filed on June 8, 2018,
          the [trial] court granted the Commonwealth’s motion


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            and precluded [appellant] from presenting any claim
            of self-defense or justification. On June 11, 2018,
            [appellant] filed a motion for reconsideration. Due to
            the impending trial, the [trial] court held an argument
            later that same day and denied [appellant’s] motion.

            On June 12, 2018, [appellant] waived her right to a
            jury trial, and the parties agreed to proceed
            immediately to a non-jury, case-stated trial. The
            [trial] court found [appellant] guilty of persons not to
            possess a firearm, but not guilty of [REAP]. In the
            verdict, the [trial] court indicated that it would permit
            [appellant] to present the evidence she proffered in
            support of her self-defense or justification claim as
            potential mitigating evidence at sentencing.

            On September 24, 2018, the [trial] court sentenced
            [appellant] to incarceration in the Lycoming County
            Prison for a minimum of 11 months and a maximum
            of 23 months to be followed by three years of
            probation under the supervision of the Lycoming
            County Probation Office. . . .

            On October 1, 2018, the Commonwealth filed a
            motion for reconsideration of sentence. Following a
            hearing on November 2, 2018, the court denied the
            Commonwealth’s motion.

Trial court opinion, 6/5/19 at 1-3.

      The Commonwealth filed a timely notice of appeal on November 27,

2018.2 On December 4, 2018, appellant filed a notice of cross-appeal. On

January 7, 2019, the trial court ordered appellant to file a concise statement




2 On June 18, 2020, the Commonwealth filed with this court a motion to
withdraw its appeal of the discretionary aspect of appellant’s sentence filed at
No. 1947 MDA 2018. An order granting the Commonwealth’s motion was filed
on June 24, 2020.


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of errors complained of on appeal and she timely complied. The trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a) on June 5, 2019.

      Appellant raises the following issue for our review:

            Whether the trial court abused its discretion in that it
            denied [a]pellant the right to present the
            self-defense/justification evidence at trial wherein
            [a]ppellant presented “some evidence, from whatever
            source, to justify a finding of self-defense”[?]

Appellant’s brief at 1-2. The Commonwealth did not file a brief in response to

appellant’s appeal.

      In her sole issue on appeal, appellant contends that the trial court

abused its discretion when it granted the Commonwealth’s motion in limine

to preclude appellant from presenting evidence of self-defense. (Id. at 3.)

            [A] motion in limine is a procedure for obtaining a
            ruling on the admissibility of evidence prior to trial,
            which is similar to a ruling on a motion to suppress
            evidence, [therefore] our standard of review . . . is the
            same as that of a motion to suppress. The admission
            of evidence is committed to the sound discretion of
            the trial court, and our review is for an abuse of
            discretion.

Commonwealth v. Valcarel, 94 A.3d 397, 398 (Pa.Super. 2014), quoting

Commonwealth v. Rosen, 42 A.3d 988, 993 (Pa. 2012) (internal citations

and quotation marks omitted). “An abuse of discretion is not merely an error

of judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Santos, 176 A.3d 877, 882 (Pa.Super. 2017), appeal


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denied, 189 A.3d 986 (Pa. 2018), quoting Commonwealth v. Antidormi,

84 A.3d 736, 749-750 (Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa.

2014) (citations omitted).

           Before the issue of self-defense may be submitted to
           a jury for consideration, a valid claim of self-defense
           must be made out as a matter of law, and this
           determination must be made by the trial judge. Such
           claim may consist of evidence from whatever source.
           Such evidence may be adduced by the defendant as
           part of [her] case, or conceivably, may be found in the
           Commonwealth’s own case in chief or be elicited
           through cross-examination. However, such evidence
           from whatever source must speak to three specific
           elements for a claim of self-defense to be placed in
           issue for a jury’s consideration.

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

           If there is any evidence from whatever source that will
           support these three elements then the decision as to
           whether the claim is a valid one is left to the jury and
           the jury must be charged properly thereon by the trial
           court.

Commonwealth v. Hornberger, 74 A.3d 279, 284-285 (Pa.Super. 2013),

quoting Commonwealth v. Hansley, 24 A.3d 410, 420-421 (Pa.Super.

2011), appeal denied, 32 A.3d 1275 (Pa. 2011) (emphasis and some

bracketed material omitted).


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      Self-defense—particularly self-defense under what’s known as the

“castle doctrine,”3—is governed in part by Section 505 of the Crimes Code.

Section 505 provides that the use of force toward another person is justifiable

“when the actor believes that such force is immediately necessary for the

purpose of protecting [her]self against the use of unlawful force by such other

person on the present occasion.”       18 Pa.C.S.A. § 505(a).      Section 505,

however, provides limits to the justification. Indeed, an actor who is in illegal

possession of a firearm has a duty to retreat if she “knows that [s]he can

avoid the necessity of using such force with complete safety by retreating[.]”

18 Pa.C.S.A. § 505(b)(2)(ii), (b)(2.3).     This court has further held that

“picking up [a] firearm while not in imminent danger . . . [is] not justifiable

under Chapter 5 of the Crimes Code.” Commonwealth v. Cannavo, 199

A.3d 1282, 1290 (Pa.Super. 2018), appeal denied, 217 A.3d 180 (Pa. 2019).

      Here, as noted by the trial court, appellant has not established that she

was ever in imminent danger. Indeed, the trial court concluded that:

            . . . [Appellant] could have remained inside her
            residence instead of going outside and confronting
            Ms. McEwen. She could have locked her doors and
            kept a watchful eye on the door leading upstairs from
            the basement door which allegedly was broken and
            could not be locked. Despite the fact that it would
            take some period of time for them to arrive,
            [appellant] could have called the police or told

3Our supreme court defines “castle doctrine” as “a specialized component of
self-defense, which recognizes that a person has no duty to retreat from his
or her home before using deadly force as a means of self-defense.”
Commonwealth v. Childs, 142 A.3d 823, 824 n.1 (Pa. 2016) (citations
omitted).


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            Ms. McEwen that she would call the police and have
            her arrested if she did not leave the property.
            [appellant] also could have armed herself with any
            weapon other than a firearm, such as a knife or
            baseball bat.

            . . . . It is undisputed that Ms. McEwen never
            attempted to enter [appellant’s] residence and
            [Ms. McEwen] was not in visible possession of a
            firearm or any other weapon capable of lethal use. . . .

            ....

            . . . [Appellant] was not in imminent danger from
            [Ms. McEwen]. Ms. McEwen was unarmed and never
            even approached the door to [Appellant’s] residence.
            She merely crossed the yard to try to retrieve her
            fiancé so that they could leave the property.

Trial court opinion, 6/5/19 at 8-9, 11.

      Based on our review of the certified record before us, we can discern no

abuse of discretion on the part of the trial court. Accordingly, appellant’s issue

is without merit.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/08/2020




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