J-S18022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TAARIQ THOMAS

                            Appellant                    No. 828 EDA 2016


         Appeal from the Judgment of Sentence dated January 15, 2016
                 In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0003165-2015

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                                 FILED JUNE 26, 2017

        Appellant, Taariq Thomas, appeals from the judgment of sentence

following a jury trial and convictions for aggravated assault, simple assault,

and recklessly endangering another person.1            Appellant challenges the

sufficiency and weight of the evidence, as well as the discretionary aspects

of his sentence. We affirm.

        We present the facts as set forth in the trial court’s opinion:

              On April 7, 2015, Allentown Police responded to 135 S. 5th
        Street for a report of an assault. Upon arrival, officers spoke
        with [Appellant], who directed the officers to Apartment 3.
        There, officers discovered Jonathan Brown with an injury to the
        right side of his head. Mr. Brown was bleeding from the wound
        and was holding a cloth in his hand. Brown was unable to
        respond to the officers, and was going in and out of
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), and 2075.
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       consciousness. Brown was transported to Lehigh Valley Hospital.
       [Appellant] admitted to police he struck Brown in the head with
       a baseball bat.

               [Appellant] was taken to Allentown Police Headquarters
       and gave an audio/videotaped statement[, which was played at
       trial].   According to [Appellant], his then-girlfriend, Chelsea
       O’Toole, was texting with her cousin, Mr. Brown, and made plans
       for Brown to come over to their apartment to hang out.
       [Appellant] said he was in the bathroom when Brown arrived.
       [Appellant] heard unusual noises and heard O’Toole say, “Babe,”
       so he grabbed a baseball bat from the bathroom and came out.
       He saw Brown holding O’Toole in what he described as a bear
       hug. He said it looked like O’Toole was trying to get away, so he
       hit Brown in the head with the bat. Brown turned around, and
       [Appellant] hit him again. [Appellant] believed Brown was being
       suspicious when texting with O’Toole, and thought Brown had a
       romantic interest in O’Toole.

              Ms. O’Toole testified at [Appellant’s] trial. According to
       O’Toole, she did not ask Mr. Brown to come to the apartment.
       O’Toole was shown text messages from her phone that showed
       Brown was invited over. When asked about them, she advised
       that the phone was in her name, but [Appellant] had it with him
       at all times and did not allow her to use it.[2] O’Toole said when
       Brown knocked on the door, she opened it and asked Brown
       what he was doing there. Brown responded, “I came to chill.”
       O’Toole said Brown put his hands on her shoulder, so she said,
       “Babe?”[3] O’Toole indicated she stated it like a question,
       because she did not know what was going on. She testified that
       [Appellant] came out and immediately hit Brown with the bat.
       O’Toole testified that Brown did not have her in a bear hug, and
       that she was out of Brown’s reach when [Appellant] came out of
       the bathroom and hit Brown.

____________________________________________
2
 Ms. O’Toole denied writing the text messages and testified that Appellant
possessed the phone at the time the text messages were sent. N.T. Trial,
12/16/15, at 35.
3
  The trial court reported, “There was evidence presented at trial that Ms.
O’Toole gave conflicting statements to police regarding how Brown grabbed
her when he entered the apartment.” Trial Ct. Op. at 3.


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Trial Ct. Op., 5/19/16, at 1-3. Ms. O’Toole denied there was any fighting,

shoving, or struggling with Mr. Brown. N.T. Trial, 12/15/15, at 66, 92-93.

Mr. Brown was unarmed and was carrying only a water bottle.           Id. at 94.

“Following the incident, Ms. O’Toole and [Appellant] left the apartment, and

[Appellant] called the police. Mr. Brown suffered severe head trauma,

including a fractured skull and bleeding on the brain, and has permanent

cognitive impairments.” Trial Ct. Op. at 3.

       With respect to Ms. O’Toole’s conflicting statements to the police,

Appellant cross-examined Ms. O’Toole about a police report, in which the

officer indicated that Ms. O’Toole said Mr. Brown tried to molest her. N.T.,

12/15/15, at 72.       Ms. O’Toole denied making that statement.      Id. at 74.

Ms. O’Toole also denied telling the police that Mr. Brown “was trying to get

me.” Id. at 77. In a subsequent statement, Ms. O’Toole admitted telling

the police that Mr. Brown grabbed her and she “had a feeling” Mr. Brown

was (1) going to take advantage of her, (2) being perverted, and (3)

aggressive. Id. at 80-81.4

       Following Appellant’s conviction by the jury, the court ordered a pre-

sentence investigation (“PSI”) report. On January 15, 2016, the court held a

sentencing hearing at which the court acknowledging reviewing all of the

information in the PSI report.         N.T. Sentencing Hr’g, 1/15/16, at 4.   The

____________________________________________
4
  Mr. Brown briefly testified: he had no memory of the incident or what
prompted him to go to the apartment.


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court discussed the sentencing guidelines and heard testimony from several

witnesses. The Commonwealth recommended a sentence of ten to twenty

years’ incarceration and Appellant suggested imprisonment of six to fifteen

years, which was identical to the recommended sentence in the PSI.         The

court sentenced Appellant to a term of six to twenty years’ incarceration,

which is in the standard range for convictions involving use of a deadly

weapon.     Appellant filed a post-sentence motion challenging, among other

things, the weight of the evidence. Following the court’s denial of his post-

sentence motion, Appellant perfected this appeal,5 in which Appellant raises

the following issues:

       Whether the evidence was sufficient to sustain [Appellant’s]
       convictions for aggravated assault, simple assault and recklessly
       endangering another person when [Appellant] was acting in
       defense of another?

       Was the verdict against the weight of all the evidence in regards
       to the proof of whether or not [Appellant] was properly convicted
       of aggravated assault, simple assault and recklessly endangering
       another person when [Appellant] was acting in defense of
       another?

       Whether the lower court abused its discretion by imposing
       sentences [sic] which were manifestly unreasonable as the court
       failed to fully state its reasons for the imposition of the
____________________________________________
5
  On March 9, 2016, Appellant filed his notice of appeal, which stated that
the court denied his post-sentence motion on February 26th. The court’s
order denying the post-sentence motion was dated February 26, 2016, but
the court did not docket it until March 10, 2016. Appellant’s appeal is
properly before us. See Pa.R.A.P. 905(a)(5) (stating, “notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof”).


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      sentences or otherwise failed to review all appropriate factors as
      required by law?

Appellant’s Brief at 5-6.

      In addressing a sufficiency challenge, we adhere to the following

standard of review:

      A claim challenging the sufficiency of the evidence presents a
      question of law. We must determine whether the evidence is
      sufficient to prove every element of the crime beyond a
      reasonable doubt. We must view evidence in the light most
      favorable to the Commonwealth as the verdict winner, and
      accept as true all evidence and all reasonable inferences
      therefrom upon which, if believed, the fact finder properly could
      have based its verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)

(citation omitted).

      Initially, Appellant highlights the testimony of Ms. O’Toole and the

testimony of the police recounting Ms. O’Toole’s statements that, in

Appellant’s view, establish Ms. O’Toole’s belief that Mr. Brown was at the

apartment for “inappropriate reasons.”    Appellant’s Brief at 15.   Appellant

also emphasizes that in his taped statement to the police, which was played

for the jury, he recounted that he thought Ms. O’Toole was in danger and

trying to escape from Mr. Brown. He points out that he contacted the police

and was cooperative.

      Appellant reasons:

      There is little question that, based upon the conflicting
      statements given by Ms. O’Toole, there might be some confusion
      about what actually occurred. However, there should be no
      doubt that [Appellant], upon exiting the bathroom, would have

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J-S18022-17


       had reason to believe that his girlfriend was in danger from this
       unexpected visitor to their apartment. . . . The Commonwealth
       can only argue the speculation of which statement made by Ms.
       O’Toole accurately reflects what really transpired and the
       confusion elicited by the conflicting statements from Ms. O’Toole
       rather than any hard evidence that negates [Appellant]’s
       defense.

Appellant’s Brief at 16.         In sum, Appellant contends the Commonwealth

presented “little direct evidence to contradict” his reasonable belief that Ms.

O’Toole was in danger. Id. at 16.

       Defense of others falls under the defense of justification, which is a

complete defense to criminal liability. See 18 Pa.C.S. § 502. Section 506(a)

of the Code provides:

       The use of force upon or toward the person of another is
       justifiable to protect a third person when:

              (1) the actor would be justified under section 505 (relating
              to use of force in self-protection) in using such force to
              protect himself against the injury he believes to be
              threatened to the person whom he seeks to protect;

              (2) under the circumstances as the actor believes them to
              be, the person whom he seeks to protect would be justified
              in using such protective force; and

              (3) the actor believes that his intervention is necessary for
              the protection of such other person.

Id. § 506(a). Section 505(b) limits the justification for using deadly force:

       (2) The use of deadly force[6] is not justifiable under this section
       unless the actor believes that such force is necessary to protect

____________________________________________
6
 “Deadly force” is defined as “Force which, under the circumstances in
which it is used, is readily capable of causing death or serious bodily injury.”
(Footnote Continued Next Page)

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      himself [or a third person] against death, serious bodily injury,
      kidnapping or sexual intercourse compelled by force or threat;
      nor is it justifiable if:

             (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. § 505(b).

      “Although the Commonwealth is required to disprove a claim of self-

defense arising from any source beyond a reasonable doubt, a [fact-finder]

is not required to believe the testimony of the defendant who raises the

claim.” Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014)

(citation omitted). “If there are other witnesses . . . who provide accounts

of the material facts, it is up to the fact finder to reject or accept all, part or

none of the testimony of any witness.” Id. (citation and internal quotation

marks omitted). In addition to testimony,

      A number of factors, including whether complainant was armed,
      any actual physical contact, size and strength disparities
      between the parties, prior dealings between the parties,
      threatening or menacing actions on the part of complainant, and
      general circumstances surrounding the incident, are all relevant
      when determining the reasonableness of a defendant’s belief
      that the use of deadly force was necessary to protect [a third
                       _______________________
(Footnote Continued)
18 Pa.C.S. § 501. In this case, Appellant struck Mr. Brown’s head with a
baseball bat at least twice.


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       [person] against death or serious bodily injuries. No single factor
       is dispositive.

Id. (citations omitted). But the Commonwealth, in order to disprove a claim

of self-defense, must introduce some evidence contradicting it “and cannot

simply rely on the jury’s disbelief of the defendant’s testimony.” Id.

       We conclude that the Commonwealth satisfied its burden here, and

that Appellant’s argument deals less with the Commonwealth’s lack of proof

than it does with his disagreement regarding the jury’s findings of facts. In

other words, “[t]he essence of Appellant’s argument is that the . . . fact-

finder[] should have believed his version of the events because his version

supports his claim of self-defense.”     Commonwealth v. Gonzales, 609

A.2d   1368,   1370    (Pa.   Super.   1992).   “Appellant’s   sufficiency   claim

necessarily relies on a finding that his version of the events in question is

more credible than the testimony presented by the Commonwealth.” Id.

But the jury was not required to agree with Appellant’s version.

       Viewing the evidence in the Commonwealth’s favor, Appellant,

pretending to be Ms. O’Toole, lured Mr. Brown over to the apartment. N.T.

Trial, 12/16/15, at 35.       After Mr. Brown, who was unarmed, arrived,

Appellant hit Mr. Brown in the head with a baseball bat — twice. N.T. Trial,

12/15/15, at 94. Ms. O’Toole provided the jury with a version of the events

leading up to that assault that was favorable to the Commonwealth.            She

testified that she did not fight or struggle with Mr. Brown. Id. at 66, 92-93.

Further, she testified that she was out of Mr. Brown’s reach and Mr. Brown

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did not have her in a bear hug when Appellant exited the bathroom and

struck Mr. Brown.    Trial Ct. Op. at 3.    The jury elected to believe Ms.

O’Toole’s testimony that she was not in danger and not trying to escape,

notwithstanding Appellant’s police statement to the contrary and the

conflicting statements Ms. O’Toole gave to the police. See Smith, 97 A.3d

at 788; Gonzales, 609 A.2d at 1370. Given this record, and in light of the

jury’s freedom to believe the Commonwealth’s version of the facts over that

of Appellant, we cannot hold that the Commonwealth failed to introduce

evidence disproving Appellant’s self-defense claim beyond a reasonable

doubt. See Smith, 97 A.3d at 788.

      Appellant next challenges the weight of the evidence. Our standard of

review of a challenge to the weight of the evidence is as follows:

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

Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super. 2014)

(brackets, quotation marks, and internal citations omitted), appeal denied,

134 A.3d 56 (Pa.), cert. denied, 132 S. Ct. 106 (2016).

      A new trial should be awarded when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail. In this regard, the evidence must
      be so tenuous, vague and uncertain that the verdict shocks the
      conscience of the [trial] court.

Id. at 758–59 (citation and internal brackets omitted).

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      Appellant again refers this Court to Ms. O’Toole’s conflicting testimony

and reiterates that his police statement established his reasonable belief.

Appellant’s Brief at 18. After careful review, we conclude that the trial court

correctly evaluated whether the evidence supporting the guilty verdict was

so tenuous, vague, and uncertain that it would have shocked the trial court’s

conscience. We discern no abuse of discretion by the trial court in resolving

Appellant’s challenge to the weight of the evidence. See Thompson, 106

A.3d at 758.

      Appellant lastly challenges the discretionary aspects of his sentence.

      A challenge to the discretionary aspects of a sentence is not
      appealable as of right. Therefore, before we may exercise
      jurisdiction to reach the merits of [the defendant’s] claim, we
      must verify that [the defendant’s] appeal is properly before this
      Court—that is, that his appeal was timely filed and that the
      issues he seeks to raise were properly preserved. If so, we must
      then determine whether [the defendant’s] brief includes a
      concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence
      pursuant to [Pa.R.A.P.] 2119(f), and whether that concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. Only if the appeal
      satisfies these requirements may we proceed to decide the
      substantive merits of [the defendant’s] claim.

Commonwealth v. Luketic, ___ A.3d ___, ___, 2017 WL 2123441, *8 (Pa.

Super. 2017) (footnote, citations, and some punctuation omitted).

      Instantly, Appellant timely appealed and filed a post-sentence motion

asserting his sentence was excessive. Appellant’s brief also includes a Rule

2119(f) statement stating that the court failed to “adequately review the

appropriate factors” set forth in the Sentencing Code and “failed to give any

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meaningful consideration to those various factors other than the seriousness

of the offense.”      Appellant’s Brief at 10. Appellant’s statement, however,

does not raise a substantial question.           Commonwealth v. Ratushny, 17

A.3d 1269, 1273 (Pa. Super. 2011) (noting, “an allegation that the

sentencing court did not adequately consider various factors is, in effect, a

request that this court substitute its judgment for that of the lower court in

fashioning a defendant’s sentence” (citation omitted)).7       In any event, the

court indicated that it reviewed the PSI report, and thus “we shall . . .

presume that the sentencing judge was aware of the relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.”            Commonwealth v. Walls, 926 A.2d

957, 967 n.7 (Pa. 2007) (citation omitted). Thus, Appellant does not satisfy

the requirements set forth by this Court in Luketic. Accordingly, we affirm

the judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________
7
  Appellant’s Rule 2119(f) statement does not “specify where the sentence
falls in relation to the sentencing guidelines.” See Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,
759 A.2d 920 (Pa. 2000).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2017




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