J-S41023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 NICHOLAS E. WEBB                         :
                                          :
                    Appellant             :    No. 1446 EDA 2017

           Appeal from the Judgment of Sentence April 27, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007980-2016


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                              FILED AUGUST 07, 2018

      Appellant, Nicholas E. Webb, appeals from the judgment of sentence

entered on April 27, 2017. We affirm.

      The trial court ably summarized the underlying facts and procedural

posture of this case. As the trial court explained:

        The complaining witness[, B.M. (hereinafter “the Victim”),]
        testified that he was at [a particular address] in Philadelphia,
        Pennsylvania on May 16, 2016 to work on his friend Alan
        Bailey’s car as well as his own. [The Victim] was familiar with
        the house since he had previously lived there. He was outside
        for approximately an hour working on the cars before going
        inside the house to use the bathroom. Upon entering, [the
        Victim] encountered [Appellant] and exchanged words with
        him. [The Victim] remained inside the house for ten [to 15]
        minutes and had a conversation with Mr. Bailey. [The Victim]
        testified that during this conversation he told Mr. Bailey he
        wanted his house back, although he stated he did not direct
        that comment at anyone in particular. He then exited the
        house and continued to work on the cars outside.



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41023-18


       Approximately an hour later, [Appellant] came from behind
       and struck [the Victim] in the face with closed fists and
       perhaps a metal object.        [The Victim] was able to
       immediately identify [Appellant] as the perpetrator by
       turning around during the attack and looking at [Appellant]
       face-to-face. He explained that although he did not see a
       metal object, he believed it was [metal] from the contact he
       felt to his face. . . .

       [Appellant] struck [the Victim] three to four times before Mr.
       Bailey ran out of the house and pulled [Appellant] off of [the
       Victim]. Mr. Bailey then called 911 and drove [the Victim] to
       Mercy Hospital. Approximately [20 minutes] transpired from
       the time the attack began to when [the Victim] was
       transported to the hospital.

       [The Victim] testified that the police came to see him at Mercy
       Hospital in response to the 911 call. As a result of the attack,
       his eyes were black and blue, his face completely swollen,
       and his nose fractured in multiple places. He also suffered
       excessive bleeding from his face while being transported to
       the hospital. [The Victim] explained that he was prescribed
       medication for his injuries and the pain and swelling lasted
       for about three weeks. . . . Three weeks after the incident,
       [the Victim] noted that he came into contact with [Appellant]
       again when he came back to the house to visit Mr. Bailey
       without incident.

       On cross-examination, [the Victim] testified that he was
       [Appellant’s] roommate for one-and-a-half to two years at
       [the residence. The Victim] is 6’2” and weighs 247 pounds.
       During [the time the Victim and Appellant lived together, the
       Victim testified] that he engaged in verbal arguments with
       [Appellant] but never hit him. He had on two occasions
       physically thrown [Appellant] against a wall. On redirect
       examination, [the Victim] stated that he moved out of the
       residence a year prior to the incident. . . .

       The certified medical records of [the Victim] from after the
       incident . . . [declared that the Victim suffered] comminuted
       bilateral fractures of the nasal bones, a non-displaced
       fracture of the left nasal process of the maxilla, and a
       moderately displaced impressed fracture of the right nasal
       process of the maxilla. Further, there was an associated

                                    -2-
J-S41023-18


          comminuted fracture of the anterior bony nasal septum,
          associated soft tissue swelling, fluid and blood in the nasal
          cavity, and comminuted bilateral fractures of the nasal
          bones.

          [Appellant] then testified and claimed that he did not intend
          to strike [the Victim] intentionally[,] but attacked him
          because he felt threatened. [Appellant] is 5’8” and weighs
          140 pounds. Appellant stated that he knew [the Victim] for
          about five to six years and had been bullied and intimidated
          by him. This consisted of being called names and being
          thrown up against a wall in 2012 and 2013. On the day of
          the incident, [Appellant] saw [the Victim] crouched down and
          leaning inside Mr. Bailey’s car as he walked out of the house.
          [Appellant] initially did not want to speak to [the Victim], but
          changed his mind and approached the car. [Appellant] stated
          that he walked up to [the Victim] to tell him that he should
          not be bullied because he was dealing with family issues at
          the time.

          [Appellant] testified that he tapped [the Victim] on the
          shoulder from behind. [Appellant] stated that [the Victim]
          responded by calling him an expletive word and turning
          around to cock his right hand as if he was going to punch
          him. [Appellant] testified that he immediately punched [the
          Victim] one time in the face in response. Mr. Bailey then ran
          over and stood between [the Victim] and [Appellant].
          [Appellant] testified that during the incident he had on black
          driving gloves that did not contain any metal. . . .

                                           ...

          [Appellant was arrested and, o]n April 27, 2016, a bench trial
          occurred at which [Appellant] was found guilty of simple
          assault.[1] On that same date, [Appellant] was sentenced to
          12 months of reporting probation and to attend anger
          management treatment/therapy.

Trial Court Opinion, 11/15/17, at 1-4 (internal citations omitted).



____________________________________________


1   18 Pa.C.S.A. § 2701(a)(1).

                                           -3-
J-S41023-18



      Appellant filed a timely notice of appeal. He raises one issue to this

Court:

         The trial court committed error when it found there was
         insufficient evidence to support [Appellant’s] claim of
         justification (self-defense) when using non-deadly force upon
         the [Victim].

Appellant’s Brief at 6 (some internal capitalization omitted).

      We review Appellant’s sufficiency of the evidence challenge under the

following standard:

         The standard we apply in reviewing the sufficiency of the
         evidence 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 [that of] 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.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.

Super. 2008).



                                      -4-
J-S41023-18



      On appeal, Appellant claims that the evidence was insufficient to

disprove his claim of self-defense. Appellant’s Brief at 8. Appellant argues:

        [Appellant] was much smaller in physical stature to [the
        Victim]. We also see that there was a history of physical
        abuse by [the Victim] against [Appellant,] which occurred
        during the several years in which [Appellant] and [the Victim]
        were housemates. On the date in question, [the Victim] once
        again taunted [Appellant] by proclaiming loud enough for
        [Appellant] to hear that “he wants his house back.” [The
        Victim] did not own that property and clearly made such an
        insult[] with the intent to harass and irk [Appellant]. The trial
        court heard testimony from [Appellant] that he went outside
        to talk to [the Victim] and ask him to leave him alone. [The
        Victim] turned to face [Appellant] in a threatening manner.
        [Appellant,] fearful that [he was] about to [be] struck, hit
        [the Victim] in self-defense.

Id. at 9.

      In relevant part, Section 505 of the Crimes Code provides:

        § 505. Use of force in self-protection

        (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.

18 Pa.C.S.A. § 505.

      The term “unlawful force” is defined as:

        “Unlawful force.” Force, including confinement, which is
        employed without the consent of the person against whom it
        is directed and the employment of which constitutes an
        offense or actionable tort or would constitute such offense or
        tort except for a defense (such as the absence of intent,
        negligence, or mental capacity; duress; youth; or diplomatic
        status) not amounting to a privilege to use the force. Assent
        constitutes consent, within the meaning of this section,


                                      -5-
J-S41023-18


           whether or not it otherwise is legally effective, except assent
           to the infliction of death or serious bodily injury.

18 Pa.C.S.A. § 501.2

       “If the defendant properly raises self-defense under Section 505 of the

Pennsylvania Crimes Code, the burden is on the Commonwealth to prove

beyond a reasonable doubt that the defendant's act was not justifiable self-

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

(internal quotations and citations omitted). Further, in a case that “involves

a mere battery,” “force may be met with force so long as it is only force enough

to repel the attack.” Commonwealth v. Pollino, 467 A.2d 1298, 1301 (Pa.

1983).

       Viewing the evidence in the light most favorable to the Commonwealth,

the evidence is clearly sufficient to disprove Appellant’s claim of self-defense.

Indeed, the Victim testified at trial: “I was working on the car and [Appellant]

snuck up behind me. . . . I had my back turned facing the car and he snuck

up behind me and hit me . . . and broke my . . . nose in three or four different

places.”     N.T. Trial, 4/27/17, at 12-13.      The Victim testified that, after

Appellant initially hit him, he turned around, saw Appellant, and Appellant

“just kept hitting me. . . . He was punching me in my face . . . and hitting me


____________________________________________


2 Appellant was convicted of simple assault. In relevant part, simple assault
is defined as: “a person is guilty of assault if he: (1) attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another.” 18
Pa.C.S.A. § 2701(a)(1).



                                           -6-
J-S41023-18



in my nose.” Id. at 14. Further, the Victim testified that he believed Appellant

was hitting him with brass knuckles or some other metal object. Id. at 16.

      The Victim’s testimony is, by itself, sufficient to disprove Appellant’s

claim of self-defense because the Victim testified that Appellant was the sole

aggressor and that the Victim never attempted to use or used force against

Appellant on the day in question. Therefore, there is sufficient evidence to

establish that Appellant’s use of force was criminal and not justifiable because,

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

Appellant could not have reasonably believed that force was “immediately

necessary for the purpose of protecting himself against the use of unlawful

force by [the Victim] on the [] occasion” in question. 18 Pa.C.S.A. § 505(a).

Appellant’s claim to the contrary fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/18




                                      -7-
J-S41023-18




              -8-
