Com. v. Chehovits, J. ( 2016 )

J-S57037-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY CHRIS CHEHOVITS, :
:
Appellant : No. 140 WDA 2016
Appeal from the Judgment of Sentence September 30, 2015
in the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001684-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 15, 2016
Jeffrey Chris Chehovits (Appellant) appeals from the September 30,
2015 judgment of sentence imposed after the trial court found him guilty of
aggravated assault, prohibited offensive weapons, simple assault, and
recklessly endangering another person (REAP). We affirm.
The trial court made the following findings of fact.
On September 5, 2014, Christopher Murray went to
Talerico’s Bar in Ambridge, Beaver County, to celebrate a
friend’s birthday. Over the course of the night, Murray
consumed several drinks and left the bar at approximately 10:00
p.m. After leaving, he went to Jacqueline Poore’s home at 801
9th Street in Ambridge. Murray was romantically involved with
Poore at the time. Poore was not at her house when Murray got
there. She joined him around midnight. Together, they watched
television and fell asleep on the couch.
Between 1:30 a.m. and 2:00 a.m. on September 6, 2014,
there was a knock on the door. Poore looked out the door and
said, “It’s Jeff,” referring to Appellant. Murray had met Appellant
*Retired Senior Judge assigned to the Superior Court.
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a few times prior to September 6 at various bars and on a few
occasions at Poore’s house. On seeing Appellant through the
screen door, Murray told Appellant to leave. Murray and
Appellant pushed at one another’s hands through the screen
door.
Murray, who had been sleeping in boxers, put on shorts
and walked outside, his belt dangling from his waist. He pulled
out his belt, and Appellant asked him if he was going to hit him,
Appellant, with the belt. Murray responded that he “might if you
don’t get out of here.” Murray testified that he removed his belt
and threw it on the ground. The [c]ourt found this testimony
credible and consistent with the belt’s location in photographs
taken during the ensuing investigation.
Appellant proceeded to his truck, which was parked
nearby. Murray shouted after him, telling him not to come back.
Murray testified that just as he thought Appellant was leaving,
Appellant leaned into his truck and started coming back toward
him. Murray saw “something that seemed metallic in
[Appellant's] hand,” which turned out to be a black Marines fold
up knife. According to Murray, he tried to back away as
[A]ppellant was swinging at him with the knife in hand. Murray
put his hands up to cover his face. Murray realized that the
metallic object in Appellant’s hand was “a sharp object” and that
when the object made contact with Murray’s hand, Murray
realized that he was “severely injured.”
Appellant turned and walked away, while Murray’s left
thumb was “pretty much flipped over.” Murray lay in the street
in front of Poore’s home, holding his left hand and losing a lot of
blood. Appellant left the scene in his vehicle.
Soon after, Officer Timothy Depenhart of the Ambridge
Borough Police Department arrived at the scene. He observed
Murray holding a towel around his arm. Officer Depenhart called
for an ambulance. Poore and Murray told [Officer] Depenhart
that it was Appellant who stabbed Murray and that Appellant had
left in a vehicle. [Officer] Depenhart detected alcohol on Murray,
but Murray was able to answer [Officer] Depenhart’s questions.
Murray told [Officer] Depenhart that Appellant lives in nearby
Economy, Beaver County.
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Officer Depenhart put in a call to police in the surrounding
area to be on the lookout for Appellant. Soon after, Economy
police informed [Officer] Depenhart that they had Appellant in
custody outside his residence. [Officer] Depenhart went to
Appellant’s residence and saw that Appellant had already been
placed in custody. Eventually, [Officer] Depenhart was led into
Appellant’s home and found the knife sitting on the arm of
Appellant’s couch. Officers placed the knife into evidence.
Trial Court Opinion, 3/9/2016, at 3-5 (citations omitted).
As a result of the incident, Appellant was convicted of the charges
indicated above following a bench trial.1 Appellant was sentenced to an
aggregate term of six to 23½ months of imprisonment. Appellant’s timely-
filed post-sentence motions were denied after a hearing. Thereafter,
Appellant timely filed a notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents four questions to this Court:
I. Whether [] Appellant’s convictions for aggravated assault,
simple assault, and [REAP] should be reversed because the
Commonwealth failed to present sufficient evidence to
prove beyond a reasonable doubt that [] Appellant did not
act in justifiable self-defense?
II. Whether [] Appellant’s conviction for aggravated assault
with a deadly weapon under section 2702(a)(4) and simple
assault under section 2701(a)(2) should be reversed
because the Commonwealth failed to present sufficient
evidence to prove beyond a reasonable doubt that []
Appellant used a deadly weapon?
III. Whether [] Appellant’s conviction for possession of a
prohibitive offensive weapon should be reversed because
the Commonwealth failed to present sufficient evidence to
1
The trial court found Appellant not guilty of other charges.
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prove beyond a reasonable doubt that the knife was a
prohibited offensive weapon?
IV. Whether [] Appellant’s conviction for [REAP] should be
reversed because the Commonwealth [failed] to present
sufficient evidence to prove beyond a reasonable doubt
that [] Appellant placed another []person in danger of
death or serious bodily injury?
Appellant’s Brief at 6 (suggested answers and unnecessary capitalization
omitted).
As Appellant’s questions challenge the sufficiency of the evidence to
sustain his convictions, the following applies to our review.
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
[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. Beasley, 138 A.3d 39, 45 (Pa. Super. 2016) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)).
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We first address Appellant’s argument that he should have been found
not guilty of the assault and REAP charges because he acted in self-defense.
In so doing, we bear in mind the applicable legal principles:
While there is no burden on a defendant to prove [a] [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 that will support
the claim, then the issue is properly before the fact finder.
If the defendant properly raises self-defense…, 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.
Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (internal
citations omitted).
Here, there is no dispute that Appellant properly placed the issue of
self-defense before the trial court. The question is whether the
Commonwealth met its burden of disproving it. Appellant, relying upon his
trial testimony, argues that the Commonwealth failed to do so:
The facts of this case lead to the conclusion that []
Appellant did reasonably believe the use of force was necessary.
[] Appellant testified that Murray violently shoved at the screen
door to the house, breaking the door, and causing the door to hit
Appellant. Appellant stated he went to leave because of how
violent Murray was acting. Murray himself testified that after the
confrontation at the screen door of the residence, he went to put
on a shirt and shorts to follow [] Appellant outside, and that []
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Appellant was walking away from the house. Murray followed []
Appellant down the walkway from the house, taking his belt off
as he went. Murray testified that when Appellant asked him if he
was going to hit Appellant with the belt, he admitted that he
would if Appellant did not leave. [] Appellant further testified
that Murray was screaming, cursing, and air punching and
kicking.
There is also evidence that Murray followed [] Appellant to
his truck. Despite Murray’s testimony that he dropped his belt
by the walkway in front of Ms. Poore’s house, he instead had it
with him throughout the confrontation with [] Appellant.
Appellant testified that Murray was holding the belt and came
after Appellant while he was attempting to enter his truck to
leave. Once at the truck, Appellant testified that he felt a blow
to his shoulder, and Murray hung onto Appellant’s shirt and
pulled it from the front, causing it to rip. Appellant further
testified that he grabbed his knife from the door of his truck
because Murray raised the belt over his head, swung the belt
over [] Appellant’s head, and the belt collided with the
Appellant’s hand so hard it drove the knife into Appellant’s hand.
Only then did Murray back away from Appellant, and Appellant
was able to get into his car to leave without any knowledge of
Murray being injured. Officer Depenhart stated that the blood
trail began near, or on, the neighbor’s property and continued
the length of the sidewalk to the walkway of the residence.
The evidence presented at the trial paints a picture that
depicts Murray as the initial, and continued, aggressor during the
confrontation, and not [] Appellant. Appellant stated that
Murray was scaring him, and that he was attempting to leave
the premises when Murray [came] after him and actually
[swung] the belt so aggressively at Appellant that he had to
defend himself. Murray’s actions left Appellant with no other
choice but to use reasonable force to protect himself from injury.
Appellant’s Brief at 14-16 (citations omitted).
It is clear to this Court that Appellant’s claim rests upon acceptance of
his testimony, and rejection of the contradictory evidence offered by the
Commonwealth. This Court will not reweigh evidence or disturb the fact-
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finder’s credibility determinations. Viewing the evidence in the light most
favorable to the Commonwealth, the evidence was sufficient to disprove
Appellant’s self-defense defense. As the trial court explained:
The Commonwealth presented the testimony of Christopher
Murray and Jacqueline Poore. Together, their testimony
established that Appellant (1) had no reasonable belief that he
was in imminent danger of death or serious bodily injury and (2)
violated a duty to retreat.
Christopher Murray testified that other than the altercation
across the screen door, he did not touch Appellant. Murray
testified that he did not grab ahold of Appellant’s shirt, nor did
he rip it. …
The [trial c]ourt, having considered both Murray’s and
Appellant’s testimony, found Murray’s and Poore’s testimony
credible, and found Appellant’s testimony not credible and self-
serving. Having shown evidence that reasonably permitted the
[trial c]ourt to conclude that Appellant did not use deadly force
out of a reasonable necessity, the Commonwealth has met its
burden.
The inference that Appellant did not act in self-defense is
further bolstered by evidence tending to show that Appellant
violated his duty to retreat. Neither the victim nor Appellant
disputed whether the knife was in Appellant’s truck during the
initial confrontation at the screen door. Appellant walked
towards his truck and withdrew the knife from it. Given the
location of the truck, walking toward the truck meant walking
away from [Murray]. Instead of acquiescing to Murray’s shouts
that Appellant “get out of [there],” Appellant walked back toward
Murray with the knife in hand and swung the knife towards
Murray. According to Murray–and consistent with his injury–
Murray put his hands up in a defensive posture to cover his face.
In walking back towards his truck, Appellant showed that he had
the opportunity to leave the confrontation without further
incident. Had Appellant gotten in his truck and drove [sic] away
instead of escalating [the situation] by grabbing a knife, the
assault would not have occurred.
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The Commonwealth presented sufficient evidence for the
[trial c]ourt to conclude that Appellant (1) did not reasonably
believe he was in danger of imminent death or serious bodily
injury and (2) violated a duty to retreat. This evidence–which
the [trial c]ourt found persuasive–necessarily defeats Appellant’s
attack on the sufficiency of the evidence, and therefore must fail.
Trial Court Opinion, 3/9/2016, at 8-11 (citations and footnote omitted).
Accordingly, Appellant’s first issue entitles him to no relief from this
Court.
Appellant next claims that his assault convictions2 cannot stand
because the Commonwealth failed to prove that he used a deadly weapon.
Appellant does not contend that the knife found at his home by Officer
Depenhart falls outside of the definition of a “deadly weapon.”3 Rather, he
contends that “there is a lack of evidence connecting the recovered knife to
the incident involving Murray.” Appellant’s Brief at 16-17. Appellant’s
argument is as follows:
Officer Depenhart testified that he did not have the knife
examined for fingerprints or DNA evidence, nor did he have any
of the evidence collected from the scene taken to a lab for
testing. The only witness for the Commonwealth who testified
2
18 Pa.C.S. § 2702(a)(4) (“A person is guilty of aggravated assault if he: …
attempts to cause or intentionally or knowingly causes bodily injury to
another with a deadly weapon….”); 18 Pa.C.S. § 2701(a)(2) (“[A] person is
guilty of assault if he: … negligently causes bodily injury to another with a
deadly weapon….”).
3
“Any firearm, whether loaded or unloaded, or any device designed as a
weapon and capable of producing death or serious bodily injury, or any other
device or instrumentality which, in the manner in which it is used or
intended to be used, is calculated or likely to produce death or serious bodily
injury.” 18 Pa.C.S. § 2301.
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regarding the object used was Murray, and his statements did
not prove beyond a reasonable doubt that a deadly weapon had
been used. Murray did not identify the knife, and had only
stated that during the altercation, he felt something sharp and
saw something metallic. This is less than circumstantial
evidence. There was no direct testimony as to what actually
caused Murray’s injuries.
With a lack of DNA or fingerprint evidence, and the victim
being unable to specifically identify what he saw, there is not
enough evidence to prove beyond a reasonable doubt that the
knife recovered by Officer Depenhart was the object that caused
Murray’s injuries. The [trial c]ourt should not be left to guess
what object caused the injuries; if it is, the Commonwealth has
not met its burden of proving a deadly weapon caused Murray’s
injuries.
Appellant’s Brief at 17.
We disagree. First, the trial court’s inference that the sharp, metallic
object that nearly severed Murray’s thumb was in fact the knife that shortly
afterwards was recovered from the arm of Appellant’s couch is abundantly
reasonable. See Commonwealth v. Sawyer, 357 A.2d 587, 590 (Pa.
Super. 1976) (holding testimony from victim, who sustained a cut hand, that
Sawyer approached him with a “shiny metal object,” coupled with evidence
that a knife was recovered nearby, was sufficient to support inference that
Sawyer attacked the victim with the knife). Second, we consider all of the
evidence actually received in reviewing a sufficiency challenge, and Appellant
himself testified that he grabbed his knife from the door of his vehicle and
used it in his confrontation with Murray. N.T., 6/2/2015, at 193. Thus,
contrary to Appellant’s assertion, the trial court did not have to guess what
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caused Murray’s injuries because Appellant identified the weapon.
Appellant’s second claim is meritless.
Next, Appellant suggests that the knife recovered from his home does
not qualify as a prohibited offensive weapon under 18 Pa.C.S. § 908, which
prohibits, inter alia, the possession of any “knife, razor or cutting
instrument, the blade of which is exposed in an automatic way by switch,
push-button, spring mechanism, or otherwise….” 18 Pa.C.S. § 908(c).
Appellant argues that the knife in question does not fall within the scope of
subsection 908(c) for two reasons: (1) the blade “has the ability to stay
closed on its own; nothing holds the blade closed,” and (2) although there is
a spring within the knife, it merely “assists with the manual opening of the
blade” rather than opening the blade automatically. Appellant’s Brief at 18.
The trial court addressed Appellant’s argument as follows:
On the shaft of the knife, where a user would grip, the knife has
a lever that exposes the blade in an automatic manner. The
lever is part of the blade itself. A spring mechanism makes the
knife flip up into an exposed position. … Here, the knife is
exposed automatically once the user puts his or her finger into
the control that is part of the knife’s blade. The blade does not
need to be manipulated manually in order for it to flip out of the
handle.
Trial Court Opinion, 3/9/2016, at 15 (citations omitted).
We agree: the fact that the knife’s blade goes from a state of full
concealment to being fully exposed upon the application of pressure on a
lever places the knife squarely within the definition of a prohibited offensive
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weapon. Cf. Commonwealth v. Ashford, 397 A.2d 420 (Pa. Super. 1979)
(plurality opinion) (holding knife did not fall within the prohibition of
subsection 908(c) where it was “exposed by a flick of the wrist,” not by a
lever or switch, and then only after a lock was released). We are
unpersuaded by Appellant’s argument that, because some action by the user
is required before the blade springs open, the knife is outside the realm of
“automatic.” Appellant is entitled to no relief on his third claim.
Lastly, Appellant contends that the Commonwealth failed to produce
sufficient evidence to sustain his REAP conviction.
“A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.
[S]erious bodily injury is defined as bodily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of
any bodily member or organ. To sustain a conviction for [REAP],
the Commonwealth must prove that the defendant had an actual
present ability to inflict harm and not merely the apparent ability
to do so. Danger, not merely the apprehension of danger, must
be created. The mens rea for recklessly endangering another
person is a conscious disregard of a known risk of death or great
bodily harm to another person.
Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa. Super. 2012)
(internal quotation marks and citations omitted).
Here, Appellant claims that there was insufficient evidence that he
acted with the required mens rea. Appellant’s Brief at 19. Relying wholly on
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his own testimony, which was rejected by the trial court, Appellant maintains
that he “in no way exercised a conscious disregard of a potential risk of
great bodily injury to Murray, by attempting to protect himself from Murray’s
attacks[.]” Id.Properly viewing the evidence in the light most favorable to the
Commonwealth as verdict-winner, Appellant, who is 6’4” and weighed more
than 260 pounds, retrieved a knife from his vehicle; exposed the blade;
swung it at 6’1”-and-185-pound Murray, while in close proximity to Murray;
and nearly cut off one of Murray’s digits, causing significant blood loss,
requiring multiple surgeries, and leaving Murray permanently impaired.
That is sufficient evidence to sustain his REAP conviction. See, e.g.,
Commonwealth v. Moore, 395 A.2d 1328, 1332 (Pa. Super. 1978)
(sustaining REAP conviction where 265-pound defendant beat the rear end
of his 7-year-old stepson with a stick, bruising him so badly that he could
not stand and required extended hospitalization).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2016
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