Com. v. Oliver-Williams, G. ( 2015 )

J-S68031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GORDON OLIVER-WILLIAMS
Appellant No. 2941 EDA 2014
Appeal from the Judgment of Sentence September 5, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006727-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GORDON OLIVER-WILLIAMS
Appellant No. 2944 EDA 2014
Appeal from the Judgment of Sentence September 5, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007931-2012
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 28, 2015
Appellant, Gordon Oliver-Williams, appeals pro se1 from the
September 5, 2014 aggregate judgment of sentence of 11 to 25 years’
____________________________________________
1
Prior to trial, the trial court conducted an extensive on the record colloquy,
pursuant to Pennsylvania Rule of Criminal Procedure 121, after which, the
(Footnote Continued Next Page)
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imprisonment, plus 5 years’ probation, imposed after he was found guilty of
two counts of aggravated assault and one count each of possession of an
instrument of a crime (PIC), possession of a weapon, terroristic threats, and
escape.2 After careful review, we affirm.
The trial court summarized the relevant factual and procedural
background of this case as follows.
On May 25, 2011, between 1:00 and 2:00 in
the morning, the victim, Mr. Anthony Harmon (“Mr.
Harmon”), was at his home located at 1105 Pine
Street in Darby, PA. For reasons that remain
unknown [Appellant], left a message on Mr.
Harmon’s phone requesting that Mr. Harmon fight
him. [Appellant], who lived across the street was a
close friend of Mr. Harmon prior to this incident and
on numerous occasions spent time in Mr. Harmon’s
household with Mr. Harmon and his family. As a
result of the phone message left by [Appellant], a
brief argument occurred between [Appellant] and Mr.
Harmon on the front porch of Mr. Harmon’s house.
The argument eventually was taken into the
backyard where Mr. Harmon’s mother, Zina Harmon
(“Ms. Harmon”), broke up the fight after noticing
[Appellant] constantly reaching into his back pocket
in an effort to possibly retrieve something.
Subsequently to the first argument, Mr.
Harmon along with cousin Colin Wesley (“Mr.
Wesley”) left the property for about an hour. Upon
returning, Mr. Harmon noticed [Appellant] walking
_______________________
(Footnote Continued)
trial court permitted Appellant to proceed pro se, and appointed Thomas
Dreyer, Esquire as Appellant’s standby counsel. See generally N.T.,
7/29/13, at 5-30.
2
18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 907(a), 907(b), 2706(a)(1), and
5121(a), respectively.
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outside Mr. Harmon’s house shouting insults at Mr.
Harmon’s family who were outside on the porch.
[Appellant] again reiterated his demand to fight Mr.
Harmon and suggested that the two walk down the
street away from Mr. Harmon’s house to do so. Mr.
Harmon and Mr. Wesley followed [Appellant] about
two houses down from Mr. Harmon’s property, where
[Appellant] proceeded to stab Mr. Harmon in the
chest with a pocketknife. Mr. Harmon did not see
the weapon on [Appellant] prior to being stabbed nor
did Mr. Harmon or Mr. Wesley have any weapons on
their persons.
Following the stabbing, Mr. Wesley and Mr.
Harmon’s sister, Ms. Brittany Robinson (“Ms.
Robinson”), gave chase of [Appellant] who fled the
scene. Mr. Harmon proceeded to pull the
pocketknife out of his chest and placed it in his
pocket. Mr. Harmon then attempted to drive himself
to the hospital. Shortly after getting behind the
wheel of the car Mr. Harmon crashed the vehicle into
a pole.
Officer Brian Evans …, an [o]fficer of the Darby
Borough Police Department, arrived at the scene of
the accident and testified that when he arrived Mr.
Harmon was lying face down outside the car. Officer
Evans had an opportunity to speak with Mr. Harmon
who informed Officer Evans that he had been
stabbed prior to the car accident. Officer Evans
noticed that Mr. Harmon’s shirt was covered with a
large amount of blood. Prior to the ambulance
arriving, Officer Evans removed a knife from Mr.
Harmon’s pocket, which Officer Evans believes was
the knife that was used to stab Mr. Harmon.
An ambulance eventually arrived at the scene
and took Mr. Harmon to University of Pennsylvania
Hospital. Dr. Patrick Kim (“Dr. Kim”), attending
surgeon at University of Pennsylvania Hospital,
treated Mr. Harmon upon arrival. Dr. Kim testified
that when Mr. Harmon was brought to him[,]Mr.
Harmon was in [h]emorrhagic shock. Hemorrhagic
shock is a condition of life-threatening bleeding,
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which causes changes in vital signs. Dr. Kim
determined that the wound to the chest was the
cause of Mr. Harmon’s hemorrhagic shock. Dr. Kim
also testified that the wound to the chest of Mr.
Harmon was in his expert opinion consistent with
that of a stab wound. Dr. Kim further stated that
[h]emorrhagic shock could be a life-threatening
event without proper or immediate treatment. Dr.
Kim placed a tube in Mr. Harmon’s chest in order to
remove the blood that had built up as a result of the
stab wound. After the tube failed to adequately
drain out the necessary amount of blood, Dr. Kim
determined that an emergency surgery known as a
thoracotomy needed to be performed. The surgery
was a success and Mr. Harmon proceeded to go
through a full recovery. Dr. Kim indicated that an
ethanol test was given to Mr. Harmon at 2:28 am on
[May 25, 2011]. The results of the test found that
Mr. Harmon had a blood alcohol content of .04,
which although that reading various [sic] from
person to person, is still well below the legal limit of
intoxication while driving.
Detective Brian Pitts …, a [d]etective [c]orporal
for the Darby Borough Police Department, testified
that he was assigned to investigate the incident that
occurred between Mr. Harmon and [Appellant].
Detective Pitts stated that on May 25, 2011 he met
with witnesses Champella Harmon, Ms. Harmon, and
Ms. Robinson at their place of residence. Detective
Pitts took each witness separately into the kitchen of
Mr. Harmon’s resident and presented each witness
with a photo array of possible suspects in the
stabbing. Each witness identified the photo of
[Appellant] in the photo array as being the individual
who stabbed Mr. Harmon. All photos the witnesses
pointed out as being the suspect were signed and
dated by the witness. The following day, May 26,
2011, Detective Pitts went to the University of
Pennsylvania [H]ospital and presented Mr. Harmon
with the same photo array. Mr. Harmon identified
[Appellant] as being the individual that stabbed him.
Mr. Harmon signed and dated the photo after
identifying [Appellant] as the suspect.
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On June 17, 2011, a call was placed to the
Darby Police Department that [Appellant], who was
in hiding, was currently at his place of residence.
One of the responding officers, Officer Jeffrey
Bevenour …, testified that a perimeter was set up
around [Appellant’s] residence. After displaying the
arrest warrant to [Appellant’s] mother, Leslie
Williams (“Ms. Williams”), the officers checked inside
[Appellant’s] house. It was eventually determined
that [Appellant] was no longer there.
On April 3, 2012, officers were again
dispatched to [Appellant’s] resident in response to a
domestic dispute. Officer Anthony Salvatore … of
the Darby Borough Police Department responded to
the dispute. Although Officer Salvatore was not the
first officer on the scene, he was in full radio contact
with those who were. Officer Salvatore testified that
fellow Darby Police Officer Falkenstine radioed to
other officers that upon arriving at the scene Officer
Falkenstine was directed to the back door of
[Appellant’s] residence by Ms. Williams. After
arriving at the back door, Officer Falkenstine noticed
[Appellant] run out. Officer Falkenstine further
added that he saw [Appellant] jumping over
numerous fences eventually disappearing onto the
railroad tracks beyond one of the fences.
Subsequent to the information being broadcasted
over the police radio, Officer Salvatore along with
other officers[,] set up a perimeter to locate
[Appellant]. It was eventually determined that
[Appellant] could not be found.
[Appellant] was eventually arrested on June
29, 2012, over a year after the initial stabbing
incident with Mr. Harmon.
Trial Court Opinion, 3/31/15, at 5-9.
On October 25, 2012, the Commonwealth filed an information at
docket number CP-23-CR-6727-2012, charging Appellant with three counts
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of simple assault, two counts of aggravated assault and one count each of
attempted murder, PIC, possession of a weapon, terroristic threats, and
recklessly endangering another person (REAP).3 On January 2, 2013, the
Commonwealth filed an information charging Appellant with one count of
escape at docket number CP-23-CR-7931-2012.4 Appellant proceeded to a
bench trial on June 17, 2014, at the conclusion of which, the trial court
found Appellant guilty of two counts of aggravated assault and one count
each of PIC, possession of a weapon, terroristic threats, and escape. The
trial court found Appellant not guilty of attempted murder and the simple
assault and REAP charges were withdrawn. On September 5, 2014, the trial
court imposed an aggregate sentence of 11 to 25 years’ imprisonment, plus
5 years’ probation.5 On September 10, 2014, Appellant filed a timely post-
____________________________________________
3
18 Pa.C.S.A. §§ 2701(a)(1), 2701(a)(2), 2701(a)(3), 2702(a)(1),
2702(a)(4), 901(a), 907(a), 907(b), 2706(a)(1), and 2705, respectively.
4
Although not directly at issue in this appeal, we note the factual allegations
surrounding the escape charge were that Appellant “was able to get away
from the constables who were escorting him to and from the [preliminary]
hearing[]” scheduled for the remaining charges at issue in this appeal. N.T.,
6/17/14, at 33.
5
Specifically, the trial court sentenced Appellant to 9 to 20 years’
imprisonment for one count of aggravated assault, five years’ probation for
the other aggravated assault charge, one and one-half to three years’
imprisonment for PIC, one to two years’ imprisonment for terroristic threats,
and two to five years’ imprisonment for escape. The trial court imposed no
further penalty for possession of a weapon. The sentences of incarceration
for aggravated assault, PIC and terroristic threats were to run concurrently
(Footnote Continued Next Page)
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sentence motion, which the trial court denied on September 22, 2014. On
October 6, 2014, Appellant filed a timely notice of appeal.6
On appeal, Appellant raises the following issues for our review.
[1.] Did the trial court erroneously allow the
Commonwealth to violate [Appellant’s] Sixth
Amendment right to a speedy trial?
[2.] Did the trial court erroneously allow the
Commonwealth to violate [Appellant’s]
Fourteenth Amendment [rights under the Equal
Protection and Privileges and Immunities
Clauses?]
[3.] Did the trial court erroneously allow the
Commonwealth to [deny Appellant’s c]laim of
self-defense where [Appellant] was acting only
with force that was equal to the force of the
attackers [sic] [?]
[4.] Did the trial court erroneously deny
[Appellant’s] motion [in limine] with respect to
the weapon seized … [w]here the weapon that
was charged to [Appellant] was found in
someone else [sic] possession[?]
[5.] Did the trial court erroneously allow the
Commonwealth to violate [Appellant’s]
[m]otion to [s]uppress [p]hysical [e]vidence
where [Appellant’s] fingerprints was [sic] not
on the weapon would be in favor to the
defense?
_______________________
(Footnote Continued)
to each other. The sentence for escape and probationary sentence for
aggravated assault were to run consecutively to the balance.
6
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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[6.] Did the trial court erroneously allow the
Commonwealth to violate [Appellant’s] request
for a line-up where [Appellant] has a right to a
line-up[?]
Appellant’s Brief at 4.
At the outset, we elect to address Appellant’s second, fourth, and fifth
issues together, as we dispose of all three on the same ground. In his
second issue, Appellant avers that the Commonwealth violated the Privileges
and Immunities Clause of Section 1 of the Fourteenth Amendment to the
Federal Constitution. Id. at 20. Appellant argues in his fourth issue that the
trial court erred in denying his motion in limine to exclude a weapon found in
the victim’s possession. Id. at 4. In his fifth issue, Appellant argues that
the trial court erred in not suppressing said weapon. Id.
Generally, appellate briefs are required to conform to the Rules of
Appellate Procedure. See generally Pa.R.A.P. 2101. While this Court will
construe pro se materials liberally, “pro se status confers no special benefit
on an appellant.” In re Ullman, 995 A.2d 1207, 1211-1212 (Pa. Super.
2010) (citation omitted), appeal denied, 20 A.3d 489 (Pa. 2011). Rule
2119(a) requires that “[t]he argument shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part--in
distinctive type or in type distinctively displayed--the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). Additionally, this Court will not
consider an argument where an appellant fails to cite to any legal authority
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or otherwise develop the issue. Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009), cert. denied, Johnson v. Pennsylvania, 562 U.S. 906
(2010); see also, e.g., In re Estate of Whitley, 50 A.3d 203, 209 (Pa.
Super. 2012) (stating, “[f]ailure to cite relevant legal authority constitutes
waiver of the claim on appeal[]”) (citation omitted), appeal denied, 69 A.3d
603 (Pa. 2013).
In this case, Appellant has failed to provide any cogent argument as to
how the Commonwealth violated the Privileges and Immunities Clause,
abused its discretion in denying his motion in limine, or in not suppressing
the weapon found on the victim’s person. Appellant has not explained or
developed any argument as to how any of these issues entitles him to a new
trial. Based on these considerations, we deem these three issues waived for
want of development. See id.
Turning to his first issue, Appellant avers that the trial court erred in
denying his motion to dismiss the charges with prejudice under Pennsylvania
Rule of Criminal Procedure 600. Appellant’s Brief at 7-8. The
Commonwealth counters that the majority of any delays in proceeding to
trial were caused by Appellant and that his speedy trial rights were not
violated. Commonwealth’s Brief at 12.
“When reviewing a trial court’s decision in a Rule 600 case, an
appellate court will reverse only if the trial court abused its discretion.”
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).
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An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised
is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence
or the record, discretion is abused.
The proper scope of review … is limited to the
evidence on the record of the Rule 600 evidentiary
hearing, and the findings of the trial court. An
appellate court must view the facts in the light most
favorable to the prevailing party.
…
So long as there has been no misconduct on
the part of the Commonwealth in an effort to evade
the fundamental speedy trial rights of an accused,
Rule 600 must be construed in a manner consistent
with society’s right to punish and deter crime. In
considering these matters …, courts must carefully
factor into the ultimate equation not only the
prerogatives of the individual accused, but the
collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en
banc) (citations omitted), affirmed, 44 A.3d 655 (Pa. 2012).
Courts utilize an initial three-step analysis to determine whether Rule
600 requires dismissal of the charges against a defendant.
The first step in determining whether a
technical violation of Rule 600 […] has occurred is to
calculate the “mechanical run date.” The mechanical
run date is the date by which trial must commence
under the relevant procedural rule. [T]he
mechanical run date is ascertained by counting the
number of days from the triggering event - e.g., the
date on which … the criminal complaint was filed - to
the date on which trial must commence under Rule
[600].
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Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal
citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second
step, we must “determine whether any excludable time exists pursuant to
Rule 600(C).” Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa.
Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third
step, we add all excludable or excusable time to the mechanical run date,
which provides the adjusted run date. Id.
Furthermore, delays not attributable to a defendant but where the
Commonwealth is found to have acted with due diligence in attempting to
commence a timely trial but was prevented by circumstances beyond its
control, is considered excusable time and likewise added to the mechanical
run date. Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super.
2004).
“Due-diligence is a fact-specific concept that is
determined on a case-by-case basis. Due diligence
does not require perfect vigilance and punctilious
care, but rather a showing by the Commonwealth
that a reasonable effort has been put forth.”
Commonwealth v. Booze, 953 A.2d 1263, 1273
(Pa. Super. 2008) (quotations and quotation marks
omitted). “Judicial delay may justify postponing trial
beyond the adjusted run date if the Commonwealth
was prepared to commence trial prior to the
expiration of the mandatory period but the court was
unavailable because of ‘scheduling difficulties and
the like.’” Preston, [supra] at 14 (citation
omitted).
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Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012), appeal
denied, 63 A.3d 1245 (Pa. 2013). Any time prior to trial, a defendant may
move the trial court for dismissal of the charges if the Commonwealth has
violated the Rule. Pa.R.Crim.P. 600(G).7
In this case, the Commonwealth filed its criminal complaint on May 25,
2011, rendering the mechanical run date May 25, 2012. Between the dates
of May 25, 2011 and June 29, 2012, Appellant was unable to be located by
police. Trial Court Opinion, 3/31/15, at 12.
Officers exercised continuous due diligence in an
effort to locate [Appellant] by consistently patrolling
the area around [Appellant]’s residence. There was
no additional information given to the officers to aid
in their search of [Appellant] except for [Appellant]’s
home address. Eventually, [Appellant] was arrested
on June 29, 2012, over a year after the criminal
complaint was filed.
Id. As Appellant does not challenge the Commonwealth’s due diligence in
apprehending him, this totals an excludable delay of 405 days. See
Commonwealth v. Miskovitch, 64 A.3d 672, 678 (Pa. Super. 2013)
(stating that Rule 600 excludes time where “the defendant could not be
apprehended because his or her whereabouts were unknown and could not
be determined by due diligence[]”), appeal denied, 78 A.3d 1090 (Pa.
____________________________________________
7
On July 1, 2013, a new version of Rule 600 took effect. However, as the
criminal complaint was filed in this case before July 1, 2013, we utilize the
former version of Rule 600. See generally Commonwealth v. Roles, 116
A.3d 122, 124 n.4 (Pa. Super. 2015).
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2013); Pa.R.Crim.P. 600(C)(1). We further note that Appellant waived his
Rule 600 rights due to continuances he requested from January 7, 2013 until
June 7, 2013, adding another 151 days of excludable time. Id. at
600(C)(2). Appellant does not dispute this time period either in his brief.
Instantly, Appellant filed his Rule 600 motion to dismiss on July 9,
2013, which the trial court denied on July 29, 2013.8 As noted above, the
mechanical run date for Rule 600 purposes was May 25, 2012. From the
two above-mentioned time periods, we have identified, at a minimum, 556
days of excludable time, which results in an adjusted run date of October 18,
2013. As a result, Appellant’s Rule 600 rights were not violated when
Appellant filed his motion to dismiss the charges and the trial court correctly
denied Appellant’s July 9, 2013 motion. See Bradford, supra.
In his next issue, Appellant argues that the evidence was insufficient
to convict him of aggravated assault because the Commonwealth failed to
disprove self-defense beyond a reasonable doubt. Appellant’s Brief at 11.
The Commonwealth counters that the evidence overwhelmingly showed that
Appellant was the initial aggressor. Commonwealth’s Brief at 18. We begin
by noting our well-settled standard of review. “In reviewing the sufficiency
of the evidence, we consider whether the evidence presented at trial, and all
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8
The certified record reflects that Appellant filed multiple motions to dismiss
the charges against him. The only Rule 600 motion that is referenced in
Appellant’s brief to this Court is his July 9, 2013 motion. Appellant’s Brief at
9. Therefore, we confine our review to this motion.
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reasonable inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the [finder of fact] verdict
beyond a reasonable doubt.” Commonwealth v. Patterson, 91 A.3d 55,
66 (Pa. 2014) (citation omitted), cert. denied, Patterson v. Pennsylvania,
135 S. Ct. 1400 (2015). “The Commonwealth can meet its burden by wholly
circumstantial evidence and any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113
(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),
appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must
review “the entire record … and all evidence actually received[.]” Id.
(internal quotation marks and citation omitted). “[T]he 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.” Id. (citation
omitted). “Because evidentiary sufficiency is a question of law, our standard
of review is de novo and our scope of review is plenary.” Commonwealth
v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied,
Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).
In this case, the offense at issue is aggravated assault, the statute
governing said offense provides in relevant part, as follows.
§ 2702. Aggravated assault
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(a) Offense defined.--A person is guilty of
aggravated assault if he:
(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value
of human life;
…
(4) attempts to cause or intentionally or
knowingly causes bodily injury to another with
a deadly weapon;
…
(b) Grading.--Aggravated assault under subsection
(a)(1), (2) and (9) is a felony of the first degree.
Aggravated assault under subsection (a)(3), (4), (5),
(6), (7) and (8) is a felony of the second degree.
18 Pa.C.S.A. § 2702.
We note that if a defendant presents evidence raising an issue of self-
defense, the Commonwealth has the burden to disprove it beyond a
reasonable doubt. Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa.
2011), cert. denied, Houser v. Pennsylvania, 132 S. Ct. 1715 (2012). The
Commonwealth meets that burden if it proves any one of the following: (1)
the defendant was not free from fault in provoking or continuing the conflict
that resulted in the killing; (2) the defendant did not reasonably believe he
was in imminent danger of death or serious bodily injury, and it was not
necessary to kill in order to avoid that danger; or (3) the defendant violated
a duty to retreat or avoid the danger. Commonwealth v. Mouzon, 53
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A.3d 738, 741 (Pa. 2012). Further, “[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.” Houser,
supra (quotation marks and citation omitted). Nonetheless, “the
Commonwealth cannot sustain its burden of proof solely on the fact finder’s
disbelief of the defendant’s testimony.” Commonwealth v. Torres, 766
A.2d 342, 345 (Pa. 2001). Accordingly, we must determine whether the
affirmative evidence presented by the Commonwealth was sufficient to
disprove Appellant’s claim of self-defense.
The Commonwealth presented the testimony of Harmon, that on May
25, 2011, Appellant left a message on his phone asking for Harmon to fight
him. N.T., 6/17/14, at 50-51. Harmon did not know the reason why
Appellant wished to fight. Id. at 51. Harmon called Appellant back and
Appellant reiterated his desire to fight Harmon and informed him that he was
coming over to Harmon’s residence. Id. Harmon testified that after he
hung up, he went downstairs, looked out the window and saw Appellant
coming up to his front porch. Id. Harmon came outside and again
Appellant asked to fight. Id. After leaving his residence for an hour to cool
off, Harmon came back and Appellant was still outside requesting Harmon to
fight him, and was “calling [Harmon’s] mom [and sisters] all sorts of
names[.]” Id. at 54, 55. Harmon acquiesced and Appellant told him to walk
down the street. Id. at 55. Appellant and Harmon walked two houses down
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and according to Harmon, “[w]e squared up and [Appellant] just stabbed
me.” Id.
The trial court concluded the Commonwealth disproved Appellant’s
claim of self-defense based on the following.
In the instant case, [Appellant] initiated the
confrontation between himself and Mr. Harmon.
[Appellant] called Mr. Harmon’s phone saying that he
wanted to fight him. In addition, [Appellant] walked
across the street from his residence to the residence
of Mr. Harmon[,] shouting for Mr. Harmon to come
outside and fight him. Further, [Appellant] shouted
insults at Mr. Harmon’s family in an effort to give Mr.
Harmon an incentive to fight. Therefore, [Appellant]
was the sole aggressor and the plea of self-defense
cannot be established were [sic] [Appellant was] the
aggressor.
Trial Court Opinion, 3/31/15, at 10.
After careful review of the certified record, we conclude the record
supports the trial court’s legal conclusion. Our Supreme Court has held that
for sufficiency purposes the testimony of one eyewitness alone is sufficient
evidence to sustain a conviction. Commonwealth v. Brown, 52 A.3d
1139, 1165 (Pa. 2012); Commonwealth v. Duncan, 373 A.2d 1051, 1054
(Pa. 1977). Harmon testified that Appellant made several requests to fight
him, Appellant left his own home and came to Harmon’s residence, remained
there and shouted insults towards Harmon’s family, all in an effort to get
Harmon to agree to fight him. N.T., 6/17/14, at 50-55. Based on these
considerations, we conclude the Commonwealth presented sufficient
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affirmative evidence in order to disprove Appellant’s claim of self-defense, as
the evidence was sufficient to show that Appellant was the initial aggressor.
In his next issue, Appellant avers that he was entitled to a line-up
procedure. Appellant’s Brief at 15. Appellant requested a line up on the
record during a hearing on April 7, 2014. N.T., 4/7/14, at 13. The trial
court denied the motion during the same. Id. at 14. The Commonwealth
counters that identity was not an issue in this case; therefore, the trial court
was not required to order a line-up. Commonwealth’s Brief at 22.
The grant or denial of a request for a lineup is within
the sound discretion of the trial court, and such a
decision will not be disturbed on appeal absent an
abuse of discretion. Commonwealth v. Rush, 562
A.2d 285 (Pa. Super. 1989). A criminal defendant
has no constitutional right to a lineup.
Commonwealth v. Lark, 462 A.2d 1329 (Pa.
Super. 1983), aff'd, 477 A.2d 857 (Pa. 1984).
“[O]nly in those cases where an identification lacking
a strong indicia of reliability is the sole evidence
against the defendant should a defendant’s timely
request for a lineup be granted.” Commonwealth
v. Beverly, 547 A.2d 766, 767 (Pa. Super. 1988),
appeal denied, 564 A.2d 1259 (Pa. 1989) citing
Commonwealth v. Sexton, 400 A.2d 1289 (Pa.
1979).
Commonwealth v. Blassingale, 581 A.2d 183, 190 (Pa. Super. 1990)
(parallel citations omitted).
In the case sub judice, Harmon testified that he had known Appellant
for years leading up to the incident on May 25, 2011. N.T., 6/17/14, at 50.
Harmon testified that he and Appellant were good friends, and Appellant was
on friendly terms with Harmon’s family. Id. Harmon’s sister, Brittany
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Robinson, also testified as having a “close friendship” with Appellant. Id. at
89. Harmon’s mother, Zina Harmon, testified that she knew Appellant well,
and he would even have meals at their home. Id. at 122. Ms. Harmon
testified that her son and Appellant were in her house “all the time.” Id.
The trial court concluded that identity was not an issue in this case as
“[t]he record reflect[ed] that both the victim, Mr. Harmon, and his family
were extremely familiar with [Appellant] prior to this incident.” Trial Court
Opinion, 3/31/15, at 14. Our review of the record reflects that the trial
court’s conclusion is amply supported by the trial testimony. Therefore, this
did not taint the in-court identifications of Appellant, and the trial court did
not abuse its discretion in denying Appellant’s request for a line-up. See
Blassingale, supra.
Finally, we address Appellant’s claim that the trial court abused its
discretion in sentencing by failing to consider the sentencing guidelines and
factors enumerated in Section 9721 of the Sentencing Code.9 At the outset,
we note that this issue pertains to the discretionary aspects of his sentence.
It is axiomatic that in this Commonwealth, “[t]here is no absolute right to
appeal when challenging the discretionary aspect of a sentence.”
Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation
____________________________________________
9
We recognize that Appellant did not include this issue in his statement of
questions presented as required by Rule 2116. See generally Pa.R.A.P.
2116(b). However, we decline to find waiver on this basis.
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omitted). When an appellant forwards an argument pertaining to the
discretionary aspects of the sentence, this Court considers such an argument
to be a petition for permission to appeal. Commonwealth v. Buterbaugh,
91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal
denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this
Court determines that there is a substantial question that the sentence was
not appropriate under the sentencing code.” Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks
and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
[Pa.C.S.A.] § 9781(b).
Id.
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In the case sub judice, we note that Appellant has failed to include a
Rule 2119(f) statement in his brief, and the Commonwealth has noted its
objection. Commonwealth’s Brief at 24-25. “If a defendant fails to include
an issue in his Rule 2119(f) statement, and the Commonwealth objects, then
… this Court may not review the claim.” Commonwealth v. Karns, 50
A.3d 158, 166 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).
As the Commonwealth has lodged its objection, we deny Appellant’s petition
for permission to appeal the discretionary aspects of his sentence. See
Trinidad, supra.
Based on the foregoing, we conclude all of Appellant’s issues on appeal
are either waived or devoid of merit. Accordingly, the trial court’s
September 5, 2014 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2015
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