Com. v. Tepper, F.

J-A17015-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK TEPPER
Appellant No. 1579 EDA 2012
Appeal from the Judgment of Sentence April 4, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001877-2010
BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 29, 2014
Appellant, Frank Tepper, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for first-degree murder, possessing an instrument of crime
1
We affirm.
The relevant facts and procedural history of this appeal are as follows.
On November 21, 2009, Appellant was hosting a family function at his house
in Port Richmond. That same day, the victim, William Panas, and some of
his friends were socializing outside a nearby building. Around 10:30 p.m., a
____________________________________________
1
18 Pa.C.S.A. § 2502(a), 18 Pa.C.S.A. § 907(a), 18 Pa.C.S.A. § 2705,
respectively.
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ion. Appellant, an off-duty Philadelphia
police officer, went outside with a firearm and attempted to disperse the
un at the
evidence showed
when Appellant fired his weapon.
On February 23, 2012, following a five-day trial, a jury found Appellant
guilty of first-degree murder, PIC, and REAP. On April 4, 2012, the court
sentenced Appellant to life imprisonment for the first-degree murder
for each of the lesser convictions. Appellant timely filed a post-sentence
motion on April 9, 2012. On May 7, 2012, the court denied the post-
sentence motion. On May 16, 2012, Appellant timely filed a notice of
appeal. The court did not order Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); and Appellant
filed none.
Appellant raises the following issues for our review:
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW
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OF FIRST DEGREE MURDER,
POSSESSING AN INSTRUMENT OF CRIME AND
RECKLESSLY ENDANGERING ANOTHER PERSON WHERE
THE EVIDENCE INDICAT S
ACTING IN SELF DEFENSE WHEN HE DISCHARGED THE
FIREARM A SINGLE TIME.
THE [VERDICT] WAS AGAINST THE WEIGHT OF THE
APPELLANT OF FIRST DEGREE
MURDER, POSSESSING AN INSTRUMENT OF CRIME AND
RECKLESSLY ENDANGERING ANOTHER PERSON WHERE
THE EVIDENCE INDICAT S
ACTING IN SELF DEFENSE WHEN HE DISCHARGED THE
FIREARM A SINGLE TIME.
The following principles of review apply to challenges to the sufficiency
of 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
-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.
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Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)). When reviewing a claim that the evidence was insufficient to
support the verdict, all evidence and reasonable inferences therefrom are
viewed in the light most favorable to the Commonwealth as the verdict
winner. Commonwealth v. Simmons, 541 Pa. 211, 223, 662 A.2d 621,
627 (1995).
Our standard of review for a challenge to the weight of the evidence is
as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the lower
court has ruled on the weight claim below, an appellate
whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight
claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S. Ct. 2906, 159 L. Ed. 2d 816 (2004)
(internal citations omitted).
The Pennsylvania Crimes Code governs self-defense in relevant part as
follows:
§ 505. Use of force in self-protection
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(a) Use of force justifiable for protection of the
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 that he can avoid the necessity
of using such force with complete safety by
* * *
18 Pa.C.S.A. § 505(a), (b).2 The justified use of deadly force requires
several elements:
[It] must be shown that 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
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2
Section 505 was amended, effective August 29, 2011, to add
the date of the incident (November 21, 2009). Therefore, the 2011
amendment to Section 505 does not apply to this case.
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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.
Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172, 1174 (1995).
-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 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.
Id. (internal citations omitted). See also Commonwealth v. Bullock, 948
A.2d 818, 824 (Pa.Super. 2008) (stating same standard).
-defense under Section 505 of
the Pennsylvania Crimes Code, the burden is on the Commonwealth to prove
beyond a reasonable doubt tha -
Commonwealth v. McClendon, 874 A.2d 1223, 1229-30
(Pa.Super. 2005).
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 the use
of force; or 3) the accused had a duty to retreat and the
Id. at 1230 (quoting Commonwealth v. Yanoff, 690 A.2d 260, 264
(Pa.Super. 1997), appeal denied, 548 Pa. 681, 699 A.2d 735 (1997)). The
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Commonwealth must establish one of these three elements beyond a
reasonable doubt to insulate its case from a defense challenge to the
sufficiency of the evidence where self-protection is at issue.
Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa.Super. 2000), appeal
denied
was free of provocat
McClendon, supra at 1230.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Shelley
ms merit no relief. The trial court
opinion fully discusses and properly disposes of the issues presented. (See
Trial Court Opinion, filed June 24, 2013, at 3-6) (finding: (1) the
Commonwealth presented four witnesses and forensic evidence at trial;
three of four witnesses testified Appellant had also pointed his gun at them
when Appellant fired weapon; thus, evidence was sufficient to allow jury to
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conclude shooting was intentional, unjustified, and with malice; (2)
Appellant presented four witnesses who testified to version of facts favorable
esses claimed victim was aggressor; jury
verdict was not against weight of evidence). Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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