J-S61026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL BOSTON                             :
                                               :
                       Appellant               :   No. 2535 EDA 2018

          Appeal from the Judgment of Sentence Entered April 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005559-2016


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

MEMORANDUM BY OLSON, J.:                              FILED JANUARY 07, 2020

        Appellant, Michael Boston, appeals from the judgment of sentence

entered on April 2, 2018, as made final by the denial of his post-sentence

motion on August 1, 2018, following his jury trial convictions for third-degree

murder, possessing an instrument of crime, persons not to possess a firearm,

carrying a firearm without a license, and carrying a firearm on public streets

in Philadelphia.1 We affirm.

        The trial court briefly summarized the facts of this case as follows:

        On February 8, 2016, at 5[:00] p.m.[, Appellant] was walking
        along Market Street [in Philadelphia, Pennsylvania] with a man
        named George Fitz. Fitz was looking to buy crack cocaine from
        [Appellant], who did not want to make a sale on Market Street
        due to the volume of passersby. The two men made a left and
        walked down 62nd Street, where they were approached by
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502(c), 907, 6105, 6106, and 6108, respectively.
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      decedent[,] Joe Jones. Jones was looking for [Appellant] because
      Jones believed [Appellant] had cheated him during a prior drug
      transaction. Jones pulled out a screwdriver and waved it around,
      threatening [Appellant]. Jones’ nephew, Niam Johnson, saw the
      altercation and walked over to where the men were standing.
      Pushing and shoving ensued, despite an attempt by Fitz to calm
      the situation down. [Appellant] pulled out a .38 caliber semi-
      automatic handgun and when Johnson saw the gun, he began to
      run away. [Appellant] fired a shot at Johnson, but missed his
      target.

      By this point, Fitz was across the street and Johnson was sprinting
      away. [Appellant] looked across the street and saw that Jones
      was also running away, no longer waving a screwdriver or
      attempting to escalate the altercation with [Appellant].
      [Appellant], nevertheless, fired three shots at Jones. Two of the
      shots entered the left side of Jones’ chest. [Appellant] then fled
      the scene. Jones was pronounced dead at Penn Presbyterian
      Hospital at 5:36 p.m. Dr. Albert Chu, an Associate Medical
      Examiner, performed the autopsy and concluded, to a reasonable
      degree of medical certainty, that the cause of death was gunshot
      wounds, and the manner of death was homicide.

      A corner store located at 62nd and Arch [Streets] had surveillance
      cameras which captured the shooting. The homicide investigators
      used this footage to identify Fitz, who was brought in for
      questioning.    Fitz identified [Appellant] as the shooter and
      described the incident in detail.

      [Police arrested Appellant and the Commonwealth charged him
      with the aforementioned charges, as well as first-degree murder.
      The trial court held a four-day jury trial in June of 2016.] At trial,
      a certificate of non-licensure was introduced proving that
      [Appellant] was not licensed to carry a firearm. Further, although
      not admitted into evidence, [Appellant] has a prior [disqualifying]
      offense[,] which made it illegal for him to carry a firearm.

Trial Court Opinion, 11/5/2018, at 1-2 (record citations omitted).

      The case proceeded thereafter as follows:

      On June 15, 2017, a jury found [Appellant] guilty of third[-]degree
      murder, possessing an instrument of crime, and [the three
      firearm] violations[.] [Appellant] was sentenced on April 2, 2018
      to an aggregate term of twenty[-five] (25) to fifty (50) years[’]


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      incarceration. [Appellant] filed a post-sentence motion on April
      10, 2018. The motion was denied on August 1, 2018. On August
      26, 2018, [Appellant] filed a notice of appeal and on September
      4, 2018, [the trial] court ordered [Appellant] to file a statement
      of [errors] complained of on appeal [pursuant to Pa.R.A.P.
      1925(b)]. [Appellant] filed his [Rule 1925(b)] statement [] on
      October 14, 2018. [The trial court issued an opinion pursuant to
      Pa.R.A.P. 1925(a) on November 5, 2018.]

Id. at 1.

      On appeal, Appellant presents the following issue for our review:

      Whether the verdict was against the sufficiency of the evidence
      when [A]ppellant was physically attacked by two men that were
      beating and robbing him, one of which was wielding and
      threatening [A]ppellant with a long screwdriver[?]

Appellant’s Brief at 4.

      In sum, Appellant argues:

      This is a case of self-defense. [A]ppellant was about to sell drugs
      to an eyewitness to the incident. […] The decedent came around
      the corner and confronted [A]ppellant about money the decedent
      [was] supposedly owed for drug [sales A]ppellant made. Initially,
      [A]ppellant and decedent [were] just talking. [A]ppellant did not
      show or threaten the decedent with a gun.

      The [decedent heated the argument]. The decedent took out a
      long screwdriver. He threatened and swung at [A]ppellant.
      [A]ppellant still did not take out a gun or threaten the decedent.
      The decedent’s relative, a young man called Niam, came across
      the street to help the decedent. Niam placed his hand in his shirt
      and threatened to [“]bust[”] or [“]pop[” A]ppellant. To the
      eyewitness that [meant “shoot” A]ppellant. [A]ppellant still did
      not take out a gun or threaten anyone.

      Both the decedent and Niam grabbed [A]ppellant and threw him
      back and forth against a van and a gate. They beat [A]ppellant
      and put [] hands in his pockets and took money from him. They
      robbed [A]ppellant. That is when [A]ppellant took out a gun and
      defended himself. [A]ppellant chased the decedent a short
      distance and then shot him. Niam ran away.



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Id. at 8. As such, Appellant contends that “[i]t was reasonable for [him] to

believe that his life was in immediate danger when he was being beaten and

robbed by two men” and he was, therefore, “justified in [using] deadly force

to protect his life.” Id. at 10.

        Initially we note that Appellant fails to support his argument with record

citations in violation of our Rules of Appellate Procedure.        See Pa.R.A.P.

2119(c) (requiring that if reference is made to evidence of record, it must be

accompanied by a citation to the record); see also Pa.R.A.P. 2119(d) (“[T]he

argument must contain a synopsis of all the evidence on the point, with a

reference to the place in the record where the evidence may be found.”).

Here, Appellant claims that he was robbed and beaten before the shooting.

However, the trial court makes no mention of such evidence and Appellant

has not cited to the certified record for us to review. “We shall not develop

an argument for an appellant, nor shall we scour the record to find evidence

to support an argument; instead, we will deem [the] issue to be waived.”

Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018)

(citation omitted). Arguably, then, Appellant’s sole claim on appeal is waived.

        Even if we did not find Appellant’s issue waived, it is without merit. The

Pennsylvania Crimes Code governs self-defense and provides, in pertinent

part:

        § 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

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      purpose of protecting himself against the use of unlawful force by
      such other person on the present occasion.

      (b) Limitations on justifying necessity for use of force.—

                       *            *           *

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

18 Pa.C.S.A. § 505(a)-(b).

      We previously summarized the law pertaining to the justified use of

deadly force as follows:

      According to our Supreme Court, the justified use of deadly force
      requires:

         a) the actor was free from fault in provoking or continuing
         the difficulty which resulted in the use of deadly force; b)
         the actor must have reasonably believed that he was in
         imminent danger of death or serious bodily injury, and that
         there was a necessity to use such force in order to save
         himself or others therefrom; and c) the actor did not violate
         any duty to retreat or to avoid the danger.

      The defendant has no burden to prove his self-defense claim. The
      Supreme Court explained the evidentiary burdens as follows:

         While there is no burden on a defendant to prove the
         self-defense claim, before that defense is properly at issue
         at trial, there must be some evidence, from whatever source
         to justify a finding of self-defense. If there is any evidence



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        that will support the claim, then the issue is properly before
        the fact finder.

     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.

     The Commonwealth sustains this burden if it establishes at least
     one of the following: 1) the accused did not reasonably believe
     that he 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.

     The Commonwealth must establish only one of these three
     elements beyond a reasonable doubt to insulate its case from a
     self-defense challenge to the evidence. The Commonwealth can
     negate a self-defense claim if it proves the defendant did not
     reasonably believe he was in imminent danger of death or great
     bodily injury and it was necessary to use deadly force to save
     himself from that danger.

     The requirement of reasonable belief encompasses two aspects,
     one subjective and one objective. First, the defendant must have
     acted out of an honest, bona fide belief that he was in imminent
     danger, which involves consideration of the defendant's subjective
     state of mind. Second, the defendant's belief that he needed to
     defend himself with deadly force, if it existed, must be reasonable
     in light of the facts as they appeared to the defendant, a
     consideration that involves an objective analysis.

     […T]he use of deadly force itself cannot be viewed in isolation with
     the victim as the sole physical aggressor and the defendant acting
     in responsive self-defense. This would be an incomplete and
     inaccurate view of the circumstances for self-defense purposes.
     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.

     When the defendant's own testimony is the only evidence of
     self-defense, the Commonwealth must still disprove the asserted


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      justification and cannot simply rely on the jury's disbelief of the
      defendant's testimony:

         The disbelief of a denial does not, taken alone, afford
         affirmative proof that the denied fact existed so as to satisfy
         a proponent's burden of proving that fact. The trial court's
         statement that it did not believe Appellant's testimony is no
         substitute for the proof the Commonwealth was required to
         provide to disprove the self-defense claim.

      If there are other witnesses, however, 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. The complainant can
      serve as a witness to the incident to refute a self-defense claim.
      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, 787–788 (Pa. Super. 2014) (internal

citations, quotations, and original brackets omitted).

      Here, the trial court noted:

      Witness George Fitz testified that he saw the entire altercation and
      that he saw [Appellant] shoot decedent.           In addition, the
      surveillance camera footage clearly shows the homicide. Fitz, who
      knew [Appellant] prior to the incident, also identified him as being
      the person who committed the shooting in the video.

Trial Court Opinion, 11/5/2018, at 4.

      The trial court then concluded:

      While the evidence does show that decedent was wielding a
      screwdriver against [Appellant] early in the confrontation with
      [Appellant], that was well before [Appellant] introduced a firearm
      into the affray. Indeed, at the time of decedent’s murder, he was
      fleeing the scene and posed no threat to [Appellant]. Thus, it was
      not immediately necessary for [Appellant] to shoot decedent two
      times. Therefore, [Appellant] could not have reasonably believed
      that there was an imminent threat of death of serious bodily
      injury.


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Id. at 6.

      Upon review, we conclude the trial court did not err in rejecting

Appellant’s self-defense claim. The Commonwealth presented evidence that

Appellant used more force than was reasonably necessary and, in fact,

escalated the altercation.    Eyewitness testimony and video surveillance

footage confirmed that the victim was already leaving the scene when

Appellant began firing his weapon. As the trial court recounts, the victim, who

neither possessed nor displayed a firearm during the incident in question, was

across the street from Appellant when the shooting began.       Appellant even

concedes that he “chased [Appellant] a short distance and shot him.”

Appellant’s Brief at 8 (emphasis supplied). Accordingly, the Commonwealth

sustained its burden of proving Appellant’s act was not justifiable self-defense

because Appellant deployed deadly force against the victim when he could not

have reasonably believed he was in imminent danger. For all of the foregoing

reasons, we find Appellant waived his sole appellate claim, but it is otherwise

without merit.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/20


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