Com. v. Dunn, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDRE DUNN, :
:
Appellant : No. 468 MDA 2015
Appeal from the Judgment of Sentence entered on December 20, 2013
in the Court of Common Pleas of Berks County,
Criminal Division, No. CP-06-CR-0004288-2013
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 19, 2015
Andre Dunn (“Dunn”) appeals from the judgment of sentence imposed
following his convictions for simple assault and harassment.1 We affirm.
The trial court aptly summarized the facts as follows:
On August 30, 2013, around 2:00 p.m., Denzel Jones
[“Jones”] and his mother, Angela Brockington [“Brockington”],
were at their home at 1955 Alsace Road in Reading,
Pennsylvania. Jones had recently ended a relationship with
Essence Cook [“Cook”], the mother of his children. Cook had
previously lived at the residence for approximately four years,
and she was in the process of moving out. Cook had been told
to come to the house to retrieve her belongings.
Cook arrived at the house with [Dunn] and another male,
known only as “Black.” Cook met [Dunn] at Adappt, a halfway
house in Reading, where [Dunn] had been sent from prison.
[Dunn] and [Black] are acquaintances who met in state prison.
Brockington and Jones talked to Cook, instructing her to go
upstairs so that they could talk in private; they did not know
either of the men with her. Cook and Jones began talking
upstairs, but the conversation devolved into an argument.
1
18 Pa.C.S.A. §§ 2701(a)(1); 2709(a)(1).
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Though Jones never hit or harmed Cook, she bit his arm and
scratched him. Cook pushed Jones aside and unlocked the front
door. [Dunn] and the other male burst into the house.
Throughout the earlier argument, the two men had been banging
on both the back and front doors to the residence.
Once inside, [Dunn] and the other male immediately
attacked Jones. Kicking and punching, they knocked him to the
ground and landed blows to his head, upper body, face, and
elsewhere. Eventually, Cook yelled to [Dunn] and the other man
that they should leave.
As a result of the attack, Jones suffered two black-and-
blue eyes, injuries to his nose and lip, and a rib injury. He went
to the hospital two days later, where he was warned of possible
internal bleeding. He stayed at [the] hospital for two days.
Trial Court Opinion, 4/22/15, at 2 (citations omitted).
On December 20, 2013, following a non-jury trial, Dunn was convicted
of the above-mentioned crimes. The trial court sentenced Dunn to 9 to 24
months in prison, with credit for 112 days of time served.
Dunn filed a timely Notice of Appeal on January 2, 2014. The trial
court ordered Dunn to file a Pennsylvania Rule of Appellate Procedure
1925(b) Concise Statement of Matters Complained of on Appeal. Dunn filed
a Motion for Enlargement of Time to File a Concise Statement on January 24,
2014. The trial court granted the Motion, allowing Dunn an additional 21
days to file a Concise Statement. Because Dunn still did not file a Concise
Statement, this Court dismissed the appeal on February 24, 2014.
On July 11, 2014, Dunn filed a pro se Petition for relief pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA
court appointed Dunn PCRA counsel, who filed an Amended PCRA Petition.
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Following an agreement between PCRA counsel and the Assistant District
Attorney, the PCRA court reinstated Dunn’s direct appeal rights nunc pro
tunc on February 12, 2015. Dunn subsequently filed a Notice of Appeal and
a court-ordered Concise Statement.
On appeal, Dunn raises the following question for our review: “Did the
Commonwealth fail to prove beyond a reasonable doubt that [Dunn’s]
actions were not lawfully in defense of others?” Brief for Appellant at 4.
Dunn argues that the evidence was insufficient to support his
convictions because the Commonwealth failed to disprove Dunn’s claim of
defense of others.2 Id. at 9, 10, 12. Dunn claims that the trial court found
his perspective “entirely unbelievable” without justifying its credibility
findings. Id. at 10; see also id. at 12 (wherein Dunn argues that the trial
court improperly weighed the fact that he and Cook met at a halfway house,
and that he met Black in prison, in making a credibility determination
against Dunn, without factual support for its finding that Dunn did not act in
defense of Cook). Dunn also claims that the trial court did not properly
consider Brockington’s testimony that both Jones and Cook were yelling,
2
To the extent that Dunn raises a claim of self-defense, we note that he did
not raise this claim in his Concise Statement. Therefore, Dunn has waived
this claim. See Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super.
2005) (stating that “issues which are not raised in a Concise Statement of
Matters Complained of on Appeal under Pa.R.A.P. 1925 are waived on
appeal.”). Even if Dunn had properly raised a self-defense claim, this claim
would also fail based on the discussion below.
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which would support his defense of others claim that Cook needed his help.
Id. at 11.
We apply the following standard of review when considering a
challenge to the sufficiency of the evidence:
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
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
finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
The Crimes Code defines simple assault as an “[attempt] to cause or
intentionally, knowingly or recklessly [cause] bodily injury to another.” 18
Pa.C.S.A. § 2701(a)(1). Bodily injury is defined as the “[i]mpairment of
physical condition or substantial pain.” Id. § 2301.
“A person commits the crime of harassment when, with intent to
harass, annoy or alarm another, the person strikes, shoves, kicks or
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otherwise subjects the other person to physical contact, or attempts or
threatens to do the same.” Id. § 2709(a)(1).
Pennsylvania law permits the use of force against another person in
limited circumstances, such as defense of others. Id. § 506. With regard to
a claim of defense of others, the Crimes Code establishes the following:
(a) General rule.—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.
(b) Exception.—Notwithstanding subsection (a), the actor is
not obliged to retreat to any greater extent than the person
whom he seeks to protect.
Id.
[A]s provided by statute and as interpreted through our
case law, to establish the defense of [defense of others] it must
be shown that[:] a) the slayer [or the other he seeks to protect]
was free from fault in provoking or continuing the difficulty which
resulted in the slaying; b) that the slayer must have reasonably
believed that [the other he seeks to protect] was in imminent
danger of death or great bodily harm, and that there was a
necessity to use such force in order to save [the other]
therefrom; and c) [the other he seeks to protect] did not
violate any duty to retreat or to avoid the danger.
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Commonwealth v. Hornberger, 74 A.3d 279, 284-85 (Pa. Super. 2013)
(emphasis in original) (citing and modifying Commonwealth v. Hansley,
24 A.3d 410, 420-21 (Pa. Super. 2011), for application to defense of
others). A showing under this provision can vitiate the intent necessary for
criminal responsibility. See Commonwealth v. Jones, 332 A.2d 464, 466
(Pa. Super. 1974); see also Commonwealth v. La, 640 A.2d 1336, 1346
(Pa. Super. 1994) (stating that the claims of self-defense and defense of
others are generally addressed in the same manner). “In cases where [this
defense is] an issue, the Commonwealth is required to prove beyond a
reasonable doubt that the defense does not apply to the situation in order to
sustain the conviction.” Commonwealth v. Torres, 766 A.2d 342, 345
(Pa. 2001).
Dunn testified at trial that he was sitting on the hood of his car when
he started to hear screaming coming from the house. N.T., 12/20/14, at
43-44. Dunn testified that as he approached the residence, he could still
hear Cook screaming, and he believed she was in distress. Id. at 48. He
also stated that heard Jones “slamming” Cook and throwing her around. Id.
at 50. He testified that “[w]hen [he] banged on the door it flew open and []
Jones came out and swung. [Jones] just came out swinging.” Id. Dunn
stated that he and Jones began to fight, and Brockington pushed them to
the ground before backing Black into a corner. Id. at 48-49. Dunn testified
that both he and Jones had been able to land punches before Cook broke up
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the fight and asked Dunn to leave with her. Id. at 49-50. He stated that he
had a “busted lip” and a scratch on his face as a result of the fight. Id. at
50.
The trial court found Dunn’s testimony to be “entirely unbelievable.”
Trial Court Opinion, 4/22/15, at 5;3 see also Commonwealth v. Smith, 97
A.3d 782, 788 (Pa. Super. 2014) (stating that “[a]lthough 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.”). The
Commonwealth cannot sustain its burden of proof by relying “on the [fact-
finder’s] disbelief of the defendant’s testimony. . . . If there are other
witnesses, however, who provide accounts of material facts, it is up to the
[fact-finder] to reject or accept all, part or none of the testimony of any
witness.” Smith, 97 A.3d at 788 (internal quotations omitted); see also
Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009).
The trial court found that the testimony of both Jones and Brockington
was “credible and accurate.” Trial Court Opinion, 4/22/15, at 5.
Brockington testified that both Jones and Cook were yelling loudly enough to
be heard from outside. See N.T., 12/20/13, at 7, 12-13, 18. Brockington
3
Further, although Cook’s testimony tends to corroborate Dunn’s version of
the events, the trial court found that her testimony was not credible. See
Trial Court Opinion, 4/22/15, at 5. The trial court noted that Cook admitted
that she told a much different story to the arresting officer immediately
following the incident. See id.; see also N.T., 12/20/13, at 69-73.
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specifically testified that Jones did not punch, touch, throw or restrain Cook
in any way. Id. at 7. Brockington also testified that Cook bit Jones on the
arm and pushed him to the side to unlock the door. Id. at 8. Brockington
testified that Dunn and Black burst into the house, and immediately knocked
Jones to the ground and began to kick and punch him. Id. at 8-9. She
stated that Jones was not the aggressor, and that he never hit or struck
Dunn or Black. Id. at 14-15.4
Jones testified that during his conversation with Cook, she began to
scream at him loudly enough for people outside to hear, but he remained
calm. See id. at 23, 32. Jones testified that he could hear banging on the
front door, and Cook bit him and scratched him to get to the door. Id. at
23-24. Jones stated that he made no physical contact with Cook. Id. at 37.
Jones testified that when Cook opened the door, Dunn and Black lunged at
him with closed fists and punched him in the face, head, and upper body.
Id. at 24-25. He stated that he fell to the floor, and Black started to kick
him. Id. at 25. Jones estimated that he was kicked and punched about 10
to 12 times before Cook asked them to leave. Id. at 25-26. He testified
that he did not punch, kick, or lunge at Dunn. Id. at 34-35. Jones indicated
that in addition to the bruise from Cook’s bite, he sustained “two black and
blue eyes, [] a busted nose, a busted lip and [a] rib injury.” Id. at 24, 26.
4
This portion of Brockington’s testimony was also corroborated by the
testimony of Officer Gaughan, who arrested Dunn later that night. Officer
Gaughan testified that Dunn had no visible injuries at the time of arrest.
N.T., 12/20/13, at 76.
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Here, Brockington’s and Jones’s testimony demonstrates that Dunn did
not act in defense of others. Indeed, Jones did nothing to provoke the
attack. Thus, viewed in the light most favorable to the Commonwealth as
the verdict winner, we conclude that there was sufficient evidence for the
trial court to find, beyond a reasonable doubt, that Dunn was not acting in
defense of others when he attacked Jones. See Smith, 97 A.3d at 788
(stating that the trial court was free to believe all, part or none of the
evidence presented at trial, and to reject the testimony of those witnesses it
determined were not credible.). Upon our review of the record, we find no
reason to disturb the findings of the trial court. See Melvin, 103 A.3d at
40. Accordingly, the evidence is sufficient to sustain Dunn’s convictions for
simple assault and harassment.5
Judgment of sentence affirmed.
5
To the extent that this portion of Dunn’s argument relates to the trial
court’s credibility findings, we note that a challenge to the sufficiency of
evidence cannot “include an assessment of the credibility of the testimony
offered by the Commonwealth.” Commonwealth v. Wilson, 825 A.2d 710,
713-14 (Pa. Super. 2003). Any claim seeking a reassessment of witness
credibility is more properly characterized as a challenge to the weight of the
evidence, and such a challenge must first be presented to the trial court.
Id. at 714. Here, Dunn failed to raise a weight of the evidence challenge in
the trial court, and is therefore waived on appeal. See id.; see also
Pa.R.Crim.P. 607.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2015
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