Com. v. Snipes, E.

J-S12030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDMUND SNIPES,
Appellant No. 742 EDA 2015
Appeal from the Judgment of Sentence of November 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011799-2011
BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 09, 2016
Appellant, Edmund Snipes, appeals from the judgment of sentence
entered on November 7, 2014.1 We affirm.
The trial court summarized the pertinent facts and trial testimony as
follows:
On September 26, 2011, the complainant, Reginald
Stewart, walked to a Chinese store on Germantown
Avenue to buy something to eat. When he was outside of
the Chinese store, he observed Marquita Lee who alerted
him that [Appellant] had a gun. As Stewart turned
around, he observed [Appellant] and his fiancée,
Cassaundra Hawkins. [Appellant] then removed a gun
from the waistband of his gym shorts and pointed it in
Stewart’s face. Stewart identified the gun as a small
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1
Appellant’s judgment of sentence was made final when the trial court, on
January 17, 2015, denied his motion for reconsideration.
*Retired Senior Judge assigned to the Superior Court.
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revolver. [Appellant] said to Stewart, “What’s up now, old
head.”
As [Appellant] and Stewart were arguing, Philadelphia
Police Officer Rose Dangler was driving by and pulled over
to investigate. After determining there were no issues,
Officer Dangler left. After Officer Dangler left, Stewart
started to walk away from [Appellant]. As he walked
away, he screamed, “I can’ t believe ya’ll acting like this. I
don’t owe you money, you don’t owe me money.” In
response, [Appellant] ran toward Stewart, pushed his head
down toward the sidewalk, and shot him five times. Four
of those gunshots skimmed his head and one entered his
leg. After he was shot, Stewart identified [Appellant] to
the police as the shooter.
***
More than a month before the shooting, [] Stewart
[performed] contracting work for Hawkins, including fixing
her concrete steps. Thirty days before the shooting,
Hawkins and Stewart argued over payment for Stewart’s
contracting work for Hawkins. At trial, Hawkins testified
that—one month before the shooting—Stewart “got
boisterous” about asking for his money, so she told
[Appellant] to come downstairs to speak to him. Hawkins
also testified that, on the night of the shooting, [Appellant]
confronted Stewart about payment for the steps.
***
After shooting Stewart, [Appellant] went back to his house
where he changed clothes. [] Hawkins testified that after
she heard gunshots, [Appellant] ran to their house, went
upstairs and changed his clothes.
***
At trial, [Appellant] testified consistently with Stewart and
Hawkins except as to who had the gun, how the shooting
began, and how Stewart was shot. For example,
[Appellant] confirmed that Stewart used to perform odd
jobs around the house, such as cleaning up weeds that
were too tall. Approximately one month before the
shooting, Stewart worked on concrete steps for Hawkins.
[Appellant] further testified that, before he completed the
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concrete job, Stewart asked Hawkins for money that he
was owed for repairing a concrete step. Hawkins told
[Appellant] to speak to Stewart because he was getting
“too disrespectful.” [Appellant] told Stewart that although
the job was $50[.00], Stewart would receive the other half
of the money when the job was completed. Stewart
responded by cursing at [Appellant].
On the night of the shooting, [Appellant] and Hawkins
were walking to a bank on Germantown Avenue. As
[Appellant] passed by a Chinese store, [Appellant] testified
that he was pulled aside by Stewart who asked him, “Yo
big man, what’s up with the rest of my money?”
[Appellant] did not reply to Stewart, but instead waited for
Hawkins, who was inside the Chinese store. At this same
time, a police officer pulled up and [Appellant] told Stewart
to stop being disrespectful. When the police officer left,
[Appellant] told Stewart, “You’re not getting shit.” In
response Stewart said, “I’ll show you what I want to do,”
and took out a gun. [Appellant] grabbed the gun and
began to tussle with Stewart. During the struggle over the
gun, one gunshot was fired into Stewart’s leg. After a few
more seconds of tussling, [Appellant] testified that he was
able to bend Stewart’s wrist before the gun went off
again—this time striking Stewart as he fell backward.
After the shooting, [Appellant] went home and placed the
gun in his basement.
On cross-examination, [Appellant] admitted that instead of
walking away from Stewart, he argued with him, that he
was “getting loud” with Stewart, and that they were
“egging” on each other. When Stewart took the gun out,
[Appellant] claimed he had both hands on the gun and was
pushing it down while Stewart pulled the gun closer to
him.
Also on cross-examination, [the prosecutor] had
[Appellant] physically demonstrate to the jury how Stewart
and he tussled over the gun. Although [the prosecutor]
did her best to place on the record the physical interaction
between herself and [Appellant], the trial court recalls that
the demonstration contradicted the medical evidence as to
how Stewart was injured. In other words, the medical
records indicated that the bullet entered Stewart’s leg at
the thigh and then traveled upward toward his abdomen.
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In contrast, according to [Appellant], the gun was pointed
downward toward the sidewalk when the gunshot injured
Stewart. Moreover, Detective [Patrick] Murray found no
indication of a “strike mark” in the sidewalk, the absence
of which refute[d] [Appellant’s] claim that the gun was
pointed downward when he opened fire.
Trial Court Opinion, 7/31/15, at 1-4 (citations omitted).
On September 12, 2014, a jury convicted Appellant of aggravated
assault, two firearm violations, and possession of an instrument of crime. 2
On November 7, 2014, the trial court sentenced Appellant to a mandatory
ten to twenty-term of imprisonment for his aggravated assault conviction,
and an aggregate, consecutive term of ten years of probation for the
remaining convictions. This appeal follows the trial court’s denial of
Appellant’s post-sentence motion. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant raises the following issue:
1. Was the verdict based on insufficient evidence, in that
[Appellant] proved self-defense and the Commonwealth
failed to disprove self-defense beyond a reasonable
doubt?
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2
18 Pa.C.S.A. §§ 2702(a), 6106(a)(1), 6110.2(a), and 907, respectively.
Following the jury guilty verdict, the trial court found Appellant guilty of
possession of a firearm prohibited due to a prior conviction. 18 Pa.C.S.A. §
6106(a)(1).
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Appellant’s Brief at 4.3
Our standard of review is well settled:
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. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (citations
omitted), appeal denied, 897 A.2d 452 (Pa. 2006).
The Pennsylvania Crimes Code defines, in pertinent part, the concept
of self-defense as follows:
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3
Although Appellant challenged the imposition of the mandatory minimum
due to a prior conviction pursuant to 42 Pa.C.S.A. § 9714(a), he now
concedes that this issue is meritless in light of our Supreme Court’s recent
decision in Commonwealth v. Reid, 117 A.3d 777 (Pa. 2015).
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§ 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 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 he can avoid the necessity
of using such force with complete safety by
retreating[.]
18 Pa.C.S.A. § 505.
This Court has recently summarized:
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 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.
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Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d
1172, 1174 (1995). The defendant has no “burden to
prove” his self-defense claim. Commonwealth v.
Torres, 564 Pa. 219, 224, 766 A.2d 342, 345 (2001). The
Supreme Court explained the evidentiary burdens as
follows:
While there is no burden on a defendant to prove the
[self-defense] claim, before the 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.
Id. (internal citations omitted). See also
Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.
Super. 2008) (stating same standard). 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.”
Commonwealth v. McClendon, 874 A.2d 1223, 1229-30
(Pa. Super. 2005).
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. Hammond, 953 A.2d 544, 559 (Pa.
Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 894
(2009) (quoting McClendon, supra at 1230). 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.
Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa.
Super. 2000), appeal denied, 566 Pa. 657, 782 A.2d 542
(2001). 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
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from that danger. Commonwealth v. Sepulveda, 618
Pa. 262, 288-89, 55 A.3d 1108, 1124 (2012).
Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014).
In Smith, this Court further discussed situations like the present case,
when the defendant’s own testimony is the only evidence of self-defense:
When the defendant’s own testimony is the only evidence
of self-defense, the Commonwealth must still disprove the
asserted 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.
Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa.
Super. 2003) (quoting Torres, supra). 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.”
Commonwealth v. Gonzales, 415 Pa. Super. 564, 609
A.2d 1368, 1370 (1992). The complainant can serve as a
witness to the incident to refute a self-defense claim.
Reynolds, supra. See also Commonwealth v. Hall,
574 Pa. 233, 242, 830 A.2d 537, 542-43 (2003) (holding
defendant’s own testimony that shooting was accidental
was ineffective because there was adequate circumstantial
evidence to prove he pointed gun in direction of victim and
discharged it). “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. Bullock, 984 A.2d 818, 824
(Pa. Super. 2008).
Smith, 97 A.3d at 788.
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In this case, the trial court concluded that the Commonwealth
disproved Appellant’s claim of self-defense, explaining as follows:
Here, the evidence supports and the jury believed that
[Appellant] used more force than necessary to save
himself from death. [Based on the evidence presented and
the demeanor of the witnesses at trial, the jury’s credibility
determination should stand because there is no basis to
disturb them on appeal. The jury found the
Commonwealth’s evidence to be credible and discredited
Appellant’s testimony.] Appellant was carrying a gun in
his shorts when he approached Stewart, pointed a gun to
his face, and stated, “What’s up now, old head?” Stewart
was not even facing [Appellant] as [Appellant] approached
him. [Appellant’s] own fiancée admitted in her testimony
that Stewart was on the defensive side of the argument.
After Officer Dangler left the scene, Stewart—not
[Appellant]—began to walk away. [Appellant] admitted
that he stayed and that they were “egging” each other on.
As Stewart was screaming at [Appellant], [Appellant] ran
toward him, pushed his head toward the ground, and shot
Stewart in the leg.
During this encounter, Stewart offered no physical
resistance and made no threats to [Appellant]. Instead,
Stewart began to walk away after Officer Dangler left and
was only yelling at [Appellant]. It was only after
[Appellant] ran toward Stewart and shot him in the leg
that Stewart attempted to shove [Appellant] off of him to
avoid further violence. See Commonwealth v. Chine, 40
A.3d 1239 [(Pa. Super. 2012)] (rejecting self-defense
claim because the defendant shot an unarmed victim who
he thought would retrieve a weapon not in direct proximity
to their verbal argument).
Therefore, there is sufficient evidence that the
Commonwealth proved beyond a reasonable doubt that
[Appellant] unreasonably used more force than necessary
to save himself from death.
***
Here, the evidence [also] supports and the jury believed
that [Appellant] violated his duty to retreat. [Appellant]
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was presented with at least two opportunities to retreat in
complete safety. First, [Appellant] could have left the
scene with his fiancée after Officer Dangler investigated.
Instead of following his fiancée, who left the scene
unscathed, [Appellant] admitted to lingering and “egging
on” Stewart. Second, [Appellant] had another opportunity
to leave the scene when Stewart began to walk away while
yelling at him. Instead of walking to his home and ending
the argument, [Appellant] ran toward Stewart and fired
multiple gunshots at Stewart, striking him once in the leg.
Moreover, there is no evidence that [Appellant] was
blocked by anyone from safely retreating, or that, in doing
so, [Appellant] would have increased his exposure to
harm. To the contrary, [Appellant] was easily able to
escape home after he shot Stewart, which is evidence that
he knew that an avenue of safe retreat was available. See
Commonwealth v. Ventura, 975 A.2d 1128 [(Pa. Super.
2009)] (rejecting the defendant’s self-defense claim
because an avenue of retreat was possible that would not
have exposed him to additional harm).
As a result, there is sufficient evidence that the
Commonwealth proved beyond a reasonable doubt that
[Appellant] failed to utilize an avenue of safe retreat as
required.
Trial Court Opinion, 7/31/15, at 7-9 (footnote omitted).
Our review of the record supports the trial court’s conclusions. In
addition, we further note that, through its witnesses, the Commonwealth
established that Appellant provoked the encounter which actually led to the
shooting. Specifically, Stewart, as the complainant, refuted Appellant’s
version of the incident, Smith, supra, and his description of the incident
was corroborated in part by testimony from Marquita Lee. Lee was
accompanying Stewart when Appellant approached with a gun in his
waistband.
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In arguing to the contrary, Appellant wholly relies upon his version of
the incident. See Appellant’s Brief at 23-25. Given the guilty verdicts, the
jury did not believe Appellant’s version of the incident. Moreover, while
Appellant asserts there was “conflicting evidence as to whether [Stewart]
had been intoxicated at the time of the incident[,]” he offers no further
explanation why this fact, even if true, would alter the Commonwealth’s
ability to disprove Appellant’s self-defense claim. Id. at 24.
Finally, Appellant presents several arguments regarding the sufficiency
of the evidence supporting one or more of his firearm convictions. Id. at 25.
Because Appellant raises these claims for the first time on appeal, they are
waived and we need not address them further. See generally, Pa.R.A.P.
302(a).
In sum, because our review of the record supports the trial court’s
conclusion that the Commonwealth disproved Appellant’s self-defense claim
beyond a reasonable doubt, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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