J-S09032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JEFFREY SCOTT POWELL                       :
                                               :
                      Appellant                :      No. 1006 MDA 2017

             Appeal from the Judgment of Sentence June 13, 2017
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000050-2017


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

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 06, 2018

        Appellant, Jeffrey Scott Powell, appeals from the judgment of sentence

entered in the Cumberland County Court of Common Pleas, following his jury

trial conviction of simple assault and court conviction of two counts of

harassment.1 We affirm.

        In its opinion, the trial court correctly set forth the facts and

procedural history of this case.         Therefore, we have no reason to restate

them.

        Appellant raises the following issue for our review:

           WAS THERE INSUFFICIENT EVIDENCE TO PROVE BEYOND
           A REASONABLE DOUBT THAT [APPELLANT]’S USE OF
____________________________________________


1   18 Pa.C.S.A. §§ 2701, 2709, respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09032-18


         FORCE WAS NOT JUSTIFIED PURSUANT TO SECTION 505
         OF THE CRIMES CODE?

(Appellant’s Brief at 6).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jessica E.

Brewbaker, we conclude Appellant’s issue merits no relief.     The trial court

opinion comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed August 3, 2017, at 1-7) (finding:

jury found testimony of Victim and Ms. Easy more credible than Appellant’s

testimony; jury dismissed Appellant’s claim of self-defense, likely in light of

testimony that Appellant was initial attacker; no evidence contradicted jury’s

determination). Accordingly, we affirm based on the trial court opinion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/06/2018




                                     -2-
                                                                                Circulated 02/22/2018 09:48 AM




COMMONWEALTH                           :        IN THE COURT OF COMMON PLEAS OF
                                       :        CUMBERLAND COUNTY, PENNSYLVANIA

       VS.                                 :    CP-21-CR-0050-2017


JEFFREY SCOTT POWELL


                     IN RE: OPINION PURSUANT TO PA. R.A.P. 1925

BREWBAKER, J., August           ,   2017

       Appellant Jeffrey Scott Powell raises a single issue in his appeal, alleging that the

Commonwealth failed to disprove beyond a reasonable doubt that his use of force was justified

pursuant to Section 505 of the Pennsylvania Crimes Code. For the reasons that follow, the Court

respectfully suggests that the jury's verdict should be upheld.



                                               Procedural History

       Appellant Jeffrey Scott Powell was tried on May 1-2, 2017 by a jury of his peers on a

charge of simple assault, a misdemeanor of the second degree. Following that trial, the jury

found him guilty of simple assault, and the Court found him guilty of two summary counts of

harassment. Appellant was sentenced on June 13, 2017 to time -served (one day) to fifteen

months on the simple assault, as well as fines and costs for all charges. He timely filed an appeal

on June 22, 2017, and pursuant to this Court's Order of that same date, timely filed his Concise

Statement on July 13, 2017.




                                                                                                        cps
                                              Statement of Facts

           In November of 2016, Appellant was living with his wife, Ashanee Easy and her four

children.' Ms. Easy and Appellant had been together for about four years, but married for almost

three. Ms. Easy's son Murice, one of the children living in the home, was seventeen years old,

around 5'8" tall, and weighed about 140 pounds.2 Ms. Easy's and Murice's trial testimony were

very similar, and are summarized below.

           On November 2, 2016, Murice was upstairs helping with his younger siblings.3 He and

his mother, Ms. Easy, were keeping watch for the Defendant's impending arrival from work as

Appellant did not approve of Murice spending time with the younger children.4 Since Murice

had revealed his homosexuality approximately a year prior, Appellant had not wanted him

around his younger siblings.5 Furthermore, Appellant constantly insulted Murice for being gay,

calling him "faggot," "gay ass," "queer," and "homo."6

           When Appellant arrived home from work on November 2, 2016, his three-month old

baby was crying, and Ms. Easy was busy cooking.? When Ms. Easy asked Appellant to pick the

baby up, he told her to give him a minute because "I Ricking just got through the door."5 Ms.

Easy then asked Murice to come help with the baby, but when Appellant saw Murice holding the

baby, he told Murice to give the baby to him.9 Ms. Easy had previously heard Appellant tell

Murice not to touch the younger kids, because "he doesn't want a faggot touching his kids, or




  Notes of Testimony (hereinafter "N.T."), pages 22-23.
2 N.T. pg. 24.
3 N.T. pg. 25.
4 N.T. pg. 26.

5 N.T. pg. 55.

6 N.T. pg. 56.

7 N.T. pg. 27.

8   Id.
9   N.T. pgs. 27-28, 57.

                                                          2
they are going to be gay." 10 Ms. Easy, who could see and hear Appellant from her vantage point,

heard Appellant telling Murice to hand over the baby, and ran over to them." Murice carefully

went to hand the baby to Appellant, and Appellant yelled "you almost dropped the fucking

baby."12 Murice denied that and walked away." Ms. Easy intervened in support of Murice,

telling Appellant that Murice did not almost drop the baby, and that he needed to leave him

alone."

           Appellant yelled at Murice again about almost dropping the baby, and Murice told him he

was sick and tired of the defendant talking like that to him all of the time." Appellant

proceeded to put his face very close to Murice's face and threated that he would punch him in the

face if he dropped the baby again.I6 Murice calmly told Appellant that he was tired of being

talked to in that manner."

           Appellant slid the baby into her swing, and walked back to Murice, grabbed him by his

shirt, shook him violently and then punched him in his right cheek with his closed fist.I8 Murice

told Appellant to let him go, and Ms. Easy jumped in and tried to pull Appellant off of Murice."

The three of them continued scuffling around until Appellant grabbed Ms. Easy and began to

choke her.2° Not being strong enough to get Appellant off of his mother, Murice grabbed his

tablet and began recording a video of the incident.2I




I°   Id.
II N.T. pg. 28.
12 N.T. pgs. 30, 58.

13 N.T. pg. 58.

14 N.T. pg. 30.

15 N.T. pgs. 30-31, 59.

16 N.T. pg. 59.

17 N.T. pg. 60.

18 N.T. pgs. 32-33, 60-62.

19 N.T. pgs. 33, 63.

20 N.T. pgs. 35-36, 65.
21N.T. pgs.36, 65.

                                                   3
                                                                             his hand and attacked
             When Appellant saw Murice with the tablet, he slapped it out of
                                                                    to get him off of Murice,
him again.22 Ms. Easy again started hitting Appellant in an attempt
                                                               Ms. Easy's fifteen -year -old son
even punching Appellant in the nose and causing it to bleed.23
                                                        Appellant, who would not let go of
then jumped in so that he and Murice were also punching
                                                                          "I am going to call the
Murice's shirt until it finally ripped.24 Appellant then told the family,
                                                            definitely are going to jail.
fucking cops on you guys, you know. You guys are black. You
                                                              you guys are going to jail. You
You guys are black. I am white. You know, if I call the cops,

are going to lose your kids...."25 Appellant did call
                                                      the police, after which he changed his mind

and called back to cancel, but two officers from Lower
                                                       Allen Township Police Department

 arrived soon thereafter.26
                                                                           Appellant had hit Murice
              When the police arrived, Ms. Easy immediately told them that
                                                                                           28
                                                     want him holding the baby.27               Officer
 because Murice was homosexual and Appellant did not
                                                     him that Murice was not his biological
 Jeremy Read spoke separately to Appellant, who told
                                                     his biological child 29 Appellant said he
 child, and that Murice had dropped the baby who was
                                                     Murice "came at him," at which time
 caught the baby, after Murice dropped her, but then




 22    N.T. pgs. 37, 67.
  23   N.T. pgs. 37-38, 67.
  24   Id.
  25N.T. pgs. 38-39, 68.
  26 N.T. pg. 39.
                                                            assaulted Murice because he was
  27 Although Ms. Easy also testified that Appellant had
                                                              preference at the cause of Appellant's
  homosexual, she did not write anything about his sexual
                                                         at the preliminary hearing on this case, Ms.
  ire in her written statement to the police. Similarly,
                                                       accusing him of dropping the baby, and not
  Easy testified that Appellant attacked Murice after
                                                     and preliminary hearing testimony similarly
  because he was gay. Murice's written statement
                                                      him due to his homosexuality, rather indicating
  omitted any mention that Appellant had attacked
                                                       Murice of dropping the baby. N.T. pgs. 41-44,
  that the altercation began after Appellant accused
  46, 76-77.
   28   N.T. pg. 81.
   29   N.T. pg. 82.
                                                        4
                                                        Appellant also told Officer Read that
Appellant punched Murice in the face in self-defense.3°
                                                         family "rushed" him and began hitting
after he punched Murice in self-defense, the rest of the

him.31

                                                                     Katie Justh spoke to the other
             During Officer Read's questioning of Appellant, Officer
                                                       had recorded and his torn shirt.32
members of the family, who showed her the video Murice
                                                   a sore hand; additionally, Appellant
Murice complained of a sore jaw and Ms. Easy noted
                                                          he was exaggerating his injury,
defendant had a bloody nose, though Officer Read believed
                                                       officers then arrested Appellant.34
continuously dabbing at it unnecessarily.33 The police
                                                                   testified in his own defense.35
             Appellant, who is 5'11" and approximately 200 pounds,
                                                          on November 2, 2016, he arrived home
 After finishing work at the Post Office around 6:00 p.m.
                                                     he saw Murice holding the baby, and went to
 soon thereafter.36 When he came out of the shower
                                                    slipped, and he grabbed her, and then verbally
 get the baby from Murice.37 He said that the baby
                                                           yelling at Murice, Ms. Easy and Murice
 reprimanded Murice for dropping the baby.38 As he was
                                                struck" Murice in the face.39 Then Ms. Easy,
 both "charged" him, at which time he "gingerly
                                                      Appellant, with Ms. Easy hitting him "at
 Murice, and Ms. Easy's other son all "gang-punched"
                                                          while the boys were kicking and punching
  least twenty times in the nose in the exact same spot,"
                                                   choked Ms. Easy or put his arm around her neck,
  him.4° Appellant further testified that he never
                                                         they were black and he was white, stating
  and that he never said they would get arrested because



  " Id.
  31   Id.
  32 N.T. pgs. 83, 88.
  33 N.T. pgs. 83-85.
  34 N.T. pg. 83.
  35
      N.T. pg. 108.
  36 N.T. pg. 94.

  37 N.T. pgs. 95-96.
  38 N.T. pg. 96.
   39 N.T. pg. 97, 107.
   4° N.T. pgs. 97-98.

                                                        5
"I love my black wife. I love my two black step-children."41 Appellant produced pictures of

some bruising on his bicep, leg and foot.42 Appellant also testified that he does not dislike

Murice, had no problem with him being gay, and bought him a Lexus for his seventeenth

birthday.43 In rebuttal, Ms. Easy testified that due to a diagnosis of juvenile diabetes Murice did

not have a driver's license, and that Appellant had actually bought the Lexus for himself.44



                                                             Analysis

           According to the Pennsylvania Crimes Code, "[t]he 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." 18 Pa.C.S.               §   505(a). Because the defendant properly raised his claim of self-

defense, the burden was on the Commonwealth to prove beyond a reasonable doubt that the

defendant's actions were not justifiable self-defense. Commonwealth                  v.   Smith, 97 A.3d 782, 787

(Pa. Super. 2014) (citing Commonwealth                  v.   McClendon, 874 A.2d 1223, 1229-30 (Pa. Super.

2005)). Furthermore, the Commonwealth satisfies this burden by establishing at least one of the

following factors:           1) the   accused did not reasonably believe that he was in danger of death or

serious bodily injury; 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, at 787 (citing

Commonwealth            v.   Hammond, 953 A.2d 544, 559 (Pa. Super. 2008), appeal denied, 964 A.2d 894

(Pa. 2009)).




41   N.T. pgs.   99, 101.
42
          pgs.   101-103.
03
     N.T. pgs.   104, 106.
44   N.T. pgs.   114-115.

                                                                 6
          In Commonwealth         v.    Torres, the Supreme Court held that the Commonwealth had not

met its burden of disproving the defendant's self-defense claim where the only evidence

regarding the assault was the defendant's testimony. 766 A.2d 342, 345 (Pa. 2001). Although

the police officer testified regarding the victim's statements, the victim had not addressed who

was the initial aggressor, and thus the defendant's version remained uncontested. Id.

          Contrary to Torres, the instant case involved the testimony of several eyewitnesses, and

thus became an issue of credibility for the jury. It is well established that the jury "is free to

believe all, none or some of the evidence and to determine the credibility of the

witnesses." Commonwealth           v.    Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017) (quoting

Commonwealth        v.   Talbert, 129 A,3d 536, 545 (Pa. Super. 2015)). Furthermore, "[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." Commonwealth v. Houser,                18 A.3d 1128,


1135 (Pa. 2011) (quoting Commonwealth              v.   Carbone, 574 A.2d 584, 589 (Pa. 1990)).

          The jury clearly found the testimony of Murice and his mother to be more credible than

that of the defendant, as they dismissed his claim of self-defense, likely due to the testimony that

he was the initial attacker. There is absolutely no evidence that this was an improper

determination or outside the province of the jury, and thus the jury's decision should be

upheld. This Court respectfully requests that Appellant's appeal be denied.



 August   3   ,   2017



 Charles Volkert, Jr., Esquire                                                    Joshua Yohe, Esquire
 Chief Deputy District Attorney                                                   Assistant Public Defender

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