Com. v. Clary, D.

J-A17013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL KHALIL CLARY :
:
Appellant : No. 463 EDA 2019
Appeal from the Judgment of Sentence Entered August 31, 2018
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003961-2017
BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 15, 2020
Daniel Khalil Clary appeals from the judgment of sentence of fifty-three
and one half to one hundred and seven years of imprisonment imposed after
he was convicted of two counts of aggravated assault of a law enforcement
officer and related offenses. After careful review, we affirm.
On November 7, 2017, Appellant was driving his vehicle on State Route
33 in Northampton County, Pennsylvania when Pennsylvania State Trooper
(“PSP”) Ryan Seiple observed Appellant exceeding the posted speed limit and
initiated a traffic stop. See N.T. Jury Trial, 6/25/18, at 14-22. The full
interaction between Appellant and Trooper Seiple was captured on the mobile
video recorder (“MVR”) on Trooper Seiple’s vehicle. See N.T. Jury Trial,
6/24/18, at 71-72; N.T. Jury Trial, 6/25/18, at 27-28, 89, 90-101; see also
Commonwealth Exhibit C-7. After issuing a citation to Appellant for speeding
and answering Appellant’s questions regarding the citation, Trooper Seiple
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returned to his vehicle, initiated his turn signal, and began to maneuver back
onto Route 33. N.T. Jury Trial, 6/25/18, at 37-38. However, upon observing
Appellant waving for him to return, Trooper Seiple returned his vehicle to its
original position and re-approached Appellant’s vehicle. Id. at 38.
Appellant asked Trooper Seiple additional questions about the traffic
citation. Trooper Seiple repeated the reasons for the traffic citation and again
directed Appellant to read and follow the directions on the ticket. After
observing an air freshener in the vehicle called “blunt effects” and that
Appellant had a green tongue, Trooper Seiple became concerned that
Appellant’s confusion regarding the simple directions on the citation could be
due to marijuana intoxication. Id. at 39-45. Trooper Seiple returned to his
vehicle and requested back-up to assist him with conducting field sobriety
testing. Id. at 46.
Once Trooper Seiple’s supervisor, Corporal Seth Kelly, arrived at the
scene, Trooper Seiple asked Appellant to exit the vehicle. Appellant complied
with the directive and a frisk did not uncover any weapons. Id. at 47-48.
Trooper Seiple administered field sobriety tests, all of which Appellant failed.
Id. at 49-52. Accordingly, Trooper Seiple concluded that Appellant was under
the influence of marijuana and incapable of safe driving, and instructed him
to place his hands behind his back. Id. at 52. Before Trooper Seiple could
retrieve his handcuffs from his waist, Appellant turned his body and began
actively resisting arrest. Id. at 53. A struggle ensued, wherein Appellant
reached for Corporal Kelly’s gun and managed to disarm Trooper Seiple by
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ejecting the magazine from his service weapon, so that Trooper Seiple only
had access to the bullet in the chamber of his weapon.
Corporal Kelly and Trooper Seiple deployed their tasers, hitting him
multiple times. Id. at 54-58. Thereafter, they attempted to subdue Appellant
with their fists, but Appellant continued struggling and broke free from the
officers. Id. at 61-62. With Corporal Kelly and Trooper Seiple in close pursuit,
Appellant ran to the driver side of his vehicle, reached in the window, and
pulled out a loaded firearm. Id. Appellant shot at both officers, critically
wounding Corporal Kelly, who had not yet retrieved his weapon from its
holster. Trooper Seiple fired the one shot in his chamber and retreated to
reload. Id. at 63-65. When Appellant exhausted his ammunition, he threw
his firearm in the vehicle, and reentered the driver’s seat. Id. Corporal Kelly
crawled over the guard rail and began firing into the front passenger seat
window. Id. at 66-67. Trooper Seiple fired into the back window. Appellant
was hit in the head, chest, and hand, but still managed to flee from the scene
in his vehicle.
Appellant stopped at Easton Hospital to seek medical treatment for his
gunshot wounds. Later that day, he was transferred to Lehigh Valley Cedar
Crest Hospital, which was better equipped to handle his injuries. During
transport, Appellant blurted out: “They fucking tased me. I got back up, ran
to my car, grabbed my gun, and let two off at his ass. I think I killed his ass.”
N.T. Jury Trial, 6/26/18, at 59-60. Appellant remained at Cedar Crest Hospital
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for five days. Not long after his arrival, Appellant waived his Miranda rights1
and agreed to speak with law enforcement officers. During the interrogation,
Appellant admitted to shooting at the troopers and trying to hit them with his
firearm. See N.T. Jury Trial, 6/25/18, at 195, 206; N.T. Jury Trial, 6/26/18,
at 10, 49, 95-96, 109-15, 123.
Trooper Seiple and Corporal Kelly remained on scene after Appellant
absconded. On the MVR, Trooper Seiple can be heard calling for help and
requesting an additional tourniquet. See N.T. Jury Trial, 6/24/18, at 58-60.
Corporal Kelly sustained a gunshot wound to his femoral artery, shoulder, and
neck, but was able to apply a tourniquet to his own leg before losing
consciousness. Id. at 60-62. Emergency medical personnel arrived on site
and performed CPR. After Corporal Kelly regained consciousness, he was
transported by medical helicopter to St. Luke’s Hospital in Bethlehem,
Pennsylvania. Corporal Kelly underwent three simultaneous surgeries, after
which he was placed in a medically-induced-coma for twelve days, attached
to a ventilator, and underwent dialysis. Three weeks later, Corporal Kelly was
released from the hospital with no memories of the events of November 7,
2017.
As a result of the shooting, Appellant was arrested and charged with
criminal attempt to commit homicide of both troopers and other related
charges. Appellant filed two pre-trial motions seeking to suppress statements
____________________________________________
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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that he made in the hospital, precluding expert testimony, seeking pre-trial
discovery, requesting a pre-trial conference, and urging dismissal of the two
DUI charges.
On May 22, 2018, the trial court held a hearing on Appellant’s pre-trial
motions. At the hearing, the Commonwealth presented four witnesses, who
testified to the circumstances surrounding Appellant’s various inculpatory
statements. At the conclusion of the hearing, the court took the matter under
advisement and directed the parties to file post-hearing briefs. After
consideration of the briefs, the court issued an order and opinion denying
Appellant’s suppression motion.
On June 24, 2018, Appellant proceeded to a jury trial. Appellant did not
testify or present a defense. However, during closing argument, trial counsel
pursued a justification defense, arguing that Appellant, a young African-
American male, was confused and afraid for his life because of the actions of
the troopers. On June 29, 2018, the jury convicted Appellant of two counts
each of attempted murder of a law enforcement officer, aggravated assault of
a law enforcement officer, disarming a law enforcement officer without lawful
authorization, and one count each of escape, carrying a firearm without a
license, and resisting arrest. The jury acquitted Appellant of the remaining
DUI charge. On the same day, the trial court convicted Appellant of exceeding
the posted speed limit. Sentencing was deferred so that a pre-sentence
investigation (“PSI”) and psychiatric evaluation could be completed.
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On August 31, 2018, Appellant was sentenced to an aggregate sentence
of fifty-three and one-half to one hundred and seven years of incarceration.
More specifically, Appellant received two consecutive periods of incarceration
of twenty to forty years at the assault of a law enforcement officer charges,
two consecutive terms of incarceration of three and a half to seven years for
the disarming law enforcement officer convictions, a consecutive period of two
to four years of incarceration for the escape offense, a consecutive term of
one to two years of incarceration for resisting arrest, and a consecutive period
of three and half to seven years of incarceration for carrying a firearm without
a license. The attempted murder convictions merged with the aggravated
assault charges for the purpose of sentencing.
Appellant filed a timely post-sentence motion challenging the jury
charge and requesting reconsideration of his sentence. With regard to the
latter, Appellant alleged that the sentencing court failed to consider mitigating
factors and that the record did not support a sentence in the aggravated
range. The trial court denied Appellant’s post-sentence motion and this appeal
followed. Both Appellant and the trial court have complied with the mandates
of Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
a. The trial court refused to suppress custodial statements
made by the Appellant while he was handcuffed in a trauma
center hours after suffering multiple gunshot wounds to his
head, chest, and hand. Was this reversible error?
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b. During the jury charge, did the trial court usurp the jury’s
role as trier of fact and commit reversible error by
substituting its own biased opinion for the trial testimony
and evidence in the case?
c. Should the Appellant’s sentence be vacated where (a) the
trial court conflated his mental illness with his competency
to stand trial and thereby failed to conduct a proper
mitigation analysis and (b) the trial court failed to state on
the record the reasons for its imposition of the statutory
maximum sentence on all charges except one?
Appellant’s brief at 6.
First, Appellant alleges that the trial court erred when it refused to
suppress the statement he made to police. See Appellant’s brief at 31. Our
standard of review when considering a challenge to the denial of a suppression
motion is:
We may consider only the Commonwealth’s evidence and so much
of the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. Where the record
supports the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error. An appellate court, of course, is not bound
by the suppression court’s conclusions of law.
Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016) (citation omitted).
Importantly, “it is the sole province of the suppression court to weigh the
credibility of witnesses,” and “the suppression court judge ‘is entitled to
believe all, part or none of the evidence presented.’” Commonwealth v.
Fitzpatrick, 181 A.3d 368, 373 (Pa.Super. 2018) (citing Commonwealth v.
Biasioli, 685 A.2d 151, 157 (Pa. 1996)).
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Appellant asserts that his statement should have been suppressed as it
was involuntary. See Appellant’s brief at 31-37. “It is well-established that
when a defendant alleges that his confession was involuntary, the inquiry
becomes not whether the defendant would have confessed without
interrogation, but whether the interrogation was so manipulative or coercive
that it deprived the defendant of his ability to make a free and unconstrained
decision to confess.” Commonwealth v. Yandamuri, 159 A.3d 503, 525
(Pa. 2017) (internal citations omitted). Voluntariness is determined by a
review of the totality of the circumstances. See Commonwealth v. Nester,
709 A.2d 879, 882 (Pa. 1998). In assessing the totality of the circumstances,
the suppression court should consider: “the duration and means of the
interrogation; the defendant’s physical and psychological state; the conditions
attendant to the detention; the attitude exhibited by the police during the
interrogation; and all other factors that could drain a person’s ability to resist
suggestion and coercion.” Yandamuri, supra at 525.
At the suppression hearing, PSP Corporal Arthur Johnson testified about
Appellant’s interrogation, which he conducted alongside PSP Corporal Chris
Yaworski at Lehigh Valley Hospital.2 See N.T. Suppression Hearing, 5/22/18,
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2 The Commonwealth called three other witnesses who testified to other
statements obtained from Appellant. Specifically, PSP Corporal Michael Irons
overheard Appellant say that “he drove himself to the hospital” while speaking
to medical personnel; Lehigh County Sergeant James Grell was standing guard
in Lehigh Valley Emergency Room, when Appellant looked at him and uttered,
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at 44-98. Before approaching Appellant, Corporal Johnson sought and
received permission from Appellant’s attending physician to speak with
Appellant. Id. at 50-51, 78. Corporal Johnson observed that Appellant was
conscious and alert. Id. at 53-54. After Corporal Johnson read Appellant his
Miranda rights, Appellant read the form to himself and signed the waiver.
Id. at 56-60. The ensuing interrogation lasted approximately twenty-five
minutes, during which Appellant told the officers the story of his entire day.
Id. at 61-62. Other than the occasional follow-up question, Appellant spoke
in uninterrupted narrative form. When Appellant began displaying signs of
discomfort, Corporal Johnson immediately terminated the interview. Id. at
72-73.
Appellant alleges that the waiver was involuntary because he “exhibited
obvious signs of discomfort and pain” and had a low average IQ. See
Appellant’s brief at 34. The trial court disagreed and explained its reasoning
for denying the motion to suppress, as follows:
With regard to the Motion to Suppress [Appellant’s] statements,
the only testimony submitted at the suppression hearing was by
the Commonwealth witnesses. At no point were the witnesses
impeached or contradicted. There was nothing about the
evidentiary presentation that gives us pause. We find the
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“you never think about that one second that changes your whole life, I should
have kept driving;” and PSP Trooper Peter Delgaizo overheard Appellant
telling Easton Hospital Emergency Room personnel that “The State Police shot
me.” N.T. Suppression Hearing, 5/22/18, at 12, 22, 32. However, since trial
counsel withdrew her suppression motion regarding these three statements,
we do not address them here. Id. at 103.
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Commonwealth evidence presented at the suppression hearing to
be credible.
....
Here, we note that the [s]tate [p]olice questioned [Appellant] who
appeared to be alert and cooperative. They read the Miranda
statement to [Appellant], then gave the written statement to
[Appellant], and permitted him to review it on his own after which
[Appellant] signed the waiver and indicated that he was willing to
speak to the police.
Thereafter, the [s]tate [p]olice [t]roopers merely asked
[Appellant] to provide a narrative of his whole day, including the
incident in question. [Appellant] voluntarily did so. Periodically,
the [t]roopers interrupted [Appellant] to ask for clarification
and/or follow up questions.
Apparently, [Appellant] wishes us to infer that because he was
injured and receiving medical attention at the time that he waived
his Miranda rights and agreed to submit to questioning that his
medical condition, by itself, rendered him incapable of waiving his
Miranda rights. However, the testimony [of] record supports that
[Appellant’s] waiver of his Miranda rights was knowing and
intelligent. Further, based on the record presented at the
Suppression Hearing, at no point did [Appellant’s] physical or
psychological state, the conditions attendant to the detention, or
the attitude exhibited by the [t]roopers during the interrogation,
[support] that there was any attempt to drain [Appellant’s] ability
to resist suggestion and/or coercion or that any aspect of
[Appellant’s] statement was involuntarily obtained.
Trial Court Statement of Reasons, 6/11/18, at 9-10. The trial court’s
conclusions are supported by the record.
Corporal Johnson testified that Appellant received his Miranda
warnings, appeared to understand them, and expressly agreed to speak with
them. Despite being told that he could take a break at any time, Appellant
never requested one. See N.T. Suppression Hearing, 5/22/18, at 62. Instead,
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Appellant was alert, cooperative, and responsive to the troopers’ questions.
When Appellant showed signs of discomfort, the interview was immediately
terminated. Id. at 72-73. No further testimony was provided by either side
on this issue.
The trial court explicitly credited Corporal Johnson’s testimony, which
did not support Appellant’s claim that he “exhibited obvious signs of
discomfort and pain during questioning” or that he had a low IQ. See Trial
Court Statement of Reasons, 6/11/18, at 9; see also Appellant’s brief at 34.
We may not, as Appellant’s argument would require, disregard the trial court’s
credibility findings where they are supported by the record, or infer alternate
findings based on facts not adduced at the suppression hearing. See
Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018) (When reviewing
a ruling on a motion to suppress, our scope of review is limited to the record
developed at the suppression hearing). Accordingly, we find that the trial
court did not err when it denied Appellant’s suppression motion.
Next, Appellant contends that the trial court abused its discretion by
providing improper commentary throughout its justification jury instruction,
which undermined Appellant’s justification defense. See Appellant’s brief at
37. We review the trial court’s jury instruction as follows:
[T]he reviewing court must consider the charge as a whole to
determine if the charge was inadequate, erroneous, or prejudicial.
The trial court has broad discretion in phrasing its instructions,
and may choose its own wording so long as the law is clearly,
adequately, and accurately presented to the jury for its
consideration. A new trial is required on account of an erroneous
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jury instruction only if the instruction under review contained
fundamental error, misled, or confused the jury.
Commonwealth v. Fletcher, 986 A.2d 759, 762 (Pa. 2009) (citations and
quotations omitted).
“It is properly the function of the trial judge to define and frame for the
jury those factual issues which are contested and which require the weighing
of conflicting evidence. In order to achieve this, it is frequently advisable to
suggest less significance regarding issues where the evidence is not in
dispute.” Commonwealth v. Kelly, 446 A.2d 941, 942 (Pa.Super. 1982).
Such instructions may be delivered at any time, “provided[:] (1) there is
reasonable ground for any statement [the trial court] may make; and (2) [the
trial court] clearly leaves to the jury the right to decide all the facts and every
question involved in the case regardless of any opinion of the court thereon.”
Commonwealth v. Nesbitt, 419 A.2d 64, 67 (Pa.Super. 1980).
Appellant elected not to testify at trial about what he believed the
situation to be when he deployed deadly force. Instead, the claim of self-
defense arose from the Commonwealth’s evidence as construed by trial
counsel in her closing argument, which focused on the one minute and six
seconds after Appellant was told to place his hands behind his back, wherein
Appellant attempted to pull away and was repeatedly tasered:
. . . . Look at those photographs. He is writhing in pain on the
ground through much of this encounter. He does not throw a
punch. He does not slap anyone. He doesn’t kick anyone. He is
incapacitated. 50,000 volts that somehow dissipates down to
1,200, 1,800, whatever number it was that Corporal Selverian told
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you. But it wasn’t given to him once. It was given to him over
and over and over again. You have the taser reports. It shows
you how many seconds he is being tasered in this incident, and
you can see it on the video.
He is turned upside down. He is falling into the highway, hitting
his head on the pavement. Being tasered by two tasers while he’s
in an open driving lane of Route 33.
When you hear the Judge’s instructions, you’re going to be asked
whether the Commonwealth has proven beyond a reasonable
doubt that [Appellant] was not in fear for his life. That he was not
in fear of being seriously injured.
....
[Appellant] has no idea what’s going on in that one minute and
six seconds. He says, for what? He doesn’t get an answer. No
one says you’re under arrest. Nobody ever says you’re under
arrest. Trooper Seiple doesn’t have handcuffs in his hands. They
both come at him. He doesn’t know whether he is going to be
beaten up or die.
And I expect that [the prosecutor] is going to tell you that it’s
ridiculous for him to think that. Is it ridiculous in this day and age
to think that a [twenty-two] year-old man with no experience with
the law, having this happen to him where no one even tells him
he’s under arrest or pulls out their handcuffs, that he doesn’t know
what’s happening to him. You bet he’s scared. You bet he’s
scared for his life.
....
He was not attempting to murder a law enforcement officer. He
was not trying to aggravatedly assault a law enforcement officer.
He was trying to stay alive.
N.T. Jury Trial, 6/29/18, at 12-16. Accordingly to trial counsel’s closing
argument, the one minute and six seconds after Appellant was told to put his
hands behind his back were where the jury should focus its attention. Since
Trooper Seiple never explicitly told Appellant that he was under arrest, or
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responded to Appellant’s question: “for what?”, Appellant did not know what
was going on when Trooper Seiple told him to turn around and put his hands
behind his back. Id. As a young black male, who considered himself
outnumbered and outgunned by the two troopers, Appellant contends that he
reasonably feared for his life and responded accordingly. Id. Trial counsel
went on to explain how Appellant’s actions after the shooting were consistent
with someone who felt that his actions were necessary to save his life, i.e.,
that he drove straight to a hospital, made no attempt to conceal the firearm,
told hospital staff that he had been shot by the police, and that he had shot
at the police. Id. at 15-16.
The trial court issued the following jury charge regarding the justification
defense counsel put forth in her closing argument:
Now, I need to speak to you about another rather complex
criminal definition. And that has to do with Pennsylvania’s
definition of self-defense, which is also referred to as justification.
And before I give you the instruction, let me briefly note for you,
for the most part, it is the Commonwealth’s burden of disproving
potential defenses. However, there are some defenses under the
law that a [d]efendant might be required to prove himself or
herself, like insanity and entrapment.
People who say the government entrapped me. You, as a
defendant, have to prove that yourself by your own evidence. Or
if you say, I am crazy and I cannot be held responsible for my
actions. You are going to have to call witnesses; professional
witnesses, like psychiatrists to come in and say, this guy is crazy.
We cannot hold him responsible. That’s the defendant’s burden
to introduce that kind of evidence.
However, self-defense does not require the [d]efendant’s proof
establishing self-defense. The way our law is designed, the
Commonwealth must demonstrate, from the record, that any
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reasonable person, reviewing the record, would conclude that
justification is not available, or self-defense is not available, to this
defendant. So, rather than proving something, this is a defense
that the Commonwealth has to disprove. Meaning it is not a
reasonable defense to consider.
So, here the self-defense argument is arisen because the attorney
puts it in play and/or maybe from a statement by the [d]efendant
somewhere that said he was fearful of his life.
So, let me give you the definition now. The [d]efendant has raised
the issue of whether he acted in self-defense when he shot at the
police. Self-defense is called justification in the law of
Pennsylvania. If the [d]efendant’s actions were justified, you
cannot find him guilty beyond a reasonable doubt. The issue
having been raised, it becomes the Commonwealth’s burden to
prove beyond a reasonable doubt that the [d]efendant did not act
in justifiable self-defense.
Now, there are special charges related to this case because deadly
force was used. So, the first matter that you must consider in
deciding whether the Commonwealth has met its burden in this
regard is what kind of force the [d]efendant used in this instance.
There are two kinds, obviously, deadly and non-deadly. The
Commonwealth claims here that deadly force was used by the
[d]efendant, and it must prove that claim beyond a reasonable
doubt.
Well, I think that it is without contention now, that when you start
firing guns around deadly force was being used in this incident.
But I will define deadly force anyway because I am required to.
Deadly force is force that under the circumstances in which it is
used, is readily capable of causing death or serious bodily injury.
Serious bodily injury is bodily injury that creates a substantial risk
of death or that causes serious permanent disfigurement or
protracted loss or impairment of the function of any bodily
member or organ.
According to this definition, force is not deadly force simply
because it happens to kill or seriously injur[e]. For example, a
slap in the face that freakishly and unexpectedly leads to death is
not ordinarily deadly force. A defendant uses deadly force when
he or she knows that his or her actions, under the circumstances
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in which he or she commits them, are readily capable of causing
death or serious bodily injury.
Now, with regard to the rules with regard to deadly force. Because
by matter, I am saying by operation of law, you should find that
the Commonwealth proves to you beyond a reasonable doubt,
that the [d]efendant used deadly force. Then to prove that such
force is not justifiable in this case, the Commonwealth must prove
one of the following elements beyond a reasonable doubt.
First element that the Commonwealth may prove. And these are
in the alternative. That the [d]efendant did not reasonably believe
that he was in immediate danger of death or serious bodily injury
from law enforcement at the time he used the force, and that,
therefore, his belief that it was necessary for him to use deadly
force to protect himself was unreasonable. Put another way, the
Commonwealth must prove either; one, that the [d]efendant did
not actually believe he was in danger of death or serious bodily
injury such that he needed to use deadly force to defend himself;
or that while the [d]efendant actually believed he needed to use
deadly force, his belief was unreasonable in light of all the
circumstances known to him.
Keep in mind, a person is justified in using deadly force against
another, not only when they are in actual danger or unlawful
attack, but also when they mistakenly but reasonably believe that
they are. A person is entitled to estimate the necessity for the
force he or she employs under the circumstances as he or she
reasonably believes them to be at the time.
In the heat of a conflict, a person who has been attacked ordinarily
has neither the time nor the composure to evaluate carefully the
danger and to make judgments about exactly how much force is
needed to protect himself.
Consider the realities of the situation faced by the [d]efendant
here when you assess whether or not the Commonwealth has
proven beyond a reasonable doubt either that he did not believe
he was actually in danger of death or serious bodily injury to the
extent that he needed to use such force; or that while he did
believe that, his belief was not reasonable.
So, the measuring stick is always the reasonable man measuring
stick. Not subjectively what you believe he was thinking at the
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time. You take a look overall at everything, and you make your
decision if you believe the decisions made were reasonable.
Now, the second one is that the [d]efendant knew. When I say
second one, let me move back. Again, like I said before, there
were two things. First, that the [d]efendant did not believe he
needed to use deadly force to protect himself or if he did believe
that he needed to use deadly force, that his belief was
unreasonable. It means it made no sense that he would want to
use deadly force. Do you understand? To protect himself. That
is the first one.
Now, the second one that the Commonwealth can prove instead
is this one. And as I said, they are in the alternative. The
Commonwealth only has to prove one to disprove self-defense.
The second one is this. That the [d]efendant knew that he could
avoid the necessity of using deadly force with complete safety.
And there are two elements. One is by retreating. When I say
retreating, it means that the [d]efendant has an obligation to
retreat, but he failed to do so.
However, there are exceptions to having to retreat. First of all, if
you are in your own home, by law, you are not obligated to retreat
from your own dwelling. That is one time. But that is not in play
here.
Secondly, a defendant is not obligated to retreat from his place of
work. So, if you are at work and someone attacks you, you can
stand your ground so to speak. Also, the defendant cannot use
deadly force if he can avoid the necessity of using deadly force if
he complies with a demand that he abstained from taking any
action he had no duty to take, and he failed to do so.
Now, this is a little complex, but it is going to come to focus
shortly. With regard to the use of deadly force under arrest, the
Commonwealth needs to prove only this to satisfy you beyond a
reasonable doubt that the [d]efendant was not justified to use
deadly force. If the [d]efendant used force to resist an arrest
when the [d]efendant knows that the arrest is being made by a
police officer whether or not the arrest is lawful.
However, a defendant does not forfeit his right to claim that his
actions were justified if he or she reasonably believes that he was
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protecting himself against unlawful and deadly force by the officer.
To prove this element then, the Commonwealth must prove
beyond a reasonable doubt that the [d]efendant did not believe
that the arresting officer was using unlawful and deadly force
against him. Or if the [d]efendant did believe that, that his belief
was not reasonable. It is a really complex decision by you because
there are several aspects to this. And it is going to be up to you
to figure out and sort through this.
Obviously, at the beginning of this whole issue, when the
[d]efendant was asked to put his arms behind his back, clearly no
reasonable person would believe that. Obviously, at the time
when this whole incident arose, when the [d]efendant was asked
to put his arms behind his back there was no threat. No
reasonable person would believe they were under a threat of
deadly force. He was being arrested for DUI. There were no
weapons displayed, no aggressive action taken. He had no lawful
authority to resist the arrest as I explained it before. But he did.
He did not want to submit.
The police officers tried to detain him, and it progressively
increased from there. He had no right to engage in the fight that
he did with the police simply because he decided on his own that
he did not want to be arrested. Frankly, if he believed that the
arrest was unlawful he is wrong because it was not unlawful, the
police had the authority because they had –probable cause to
believe based on what they saw that he may have been under the
influence. An unlawful arrest is if they tried to use illegal force or
violated his constitutional rights, then that DUI arrest was an
unlawful arrest. But he can never say that the acts of the police,
when they attempted to arrest him for the DUI was unlawful.
By operation of law, it is not. No reasonable person can believe
that it was unlawful what they were doing. If they are wrong and
he proves himself innocent at trial, that just means they made a
mistake. It does not mean that the arrest was unlawful.
So, when they attempted to detain him for the DUI, it was a lawful
arrest. And then he resisted and they began using various, I
guess, items of force in their tool bag with regards to trying to
control him. I guess, the argument is that at some point the police
began acting wholly irrationally, unlawfully, and that any
reasonable person should believe that they should have backed
off and let him alone because the continued use of force was
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threatening to his life. Even though he was resisting it was still
threatening his life, and he had a right . . . at some point to
defend his life. That is the argument and that is for you to decide.
At any point in time, did the police activity become so
unreasonable that they were, on their own, putting his life in
danger because they were attempting to detain him? Such that it
was reasonable for him to run around his car, access his weapon
and begin a confrontation by introducing a deadly weapon to the
arrest. That is what his argument is, and you have to make a
determination, is that reasonable? Is that a decision that people
can make when the police attempt to arrest them for a DUI, and
there is a struggle because the person is not happy about it?
And that happens in everyday life that you get people that do not
want to submit to arrest because they are not happy. Does that
mean that the entire event, as it escalates, at some point that the
person could say, okay. They have to stop trying to detain me
because now I believe I am in danger of death. And because they
continue to try to control me, I can break free and get a gun and
defend myself. That is what the argument is, but that’s only for
you to decide.
N.T. Jury Trial, 6/29/18, at 98-108. At the conclusion of the instructions, trial
counsel objected to the charge and moved for a mistrial, which was denied.
Id. at 111-12, 115-18.
According to Appellant’s self-defense argument, it was necessary to
utilize a deadly weapon because he reasonably feared for his life from the
police. Appellant argues that the trial court defeated his defense when it
erroneously injected its own findings of fact and opinion into the justification
instruction by stating that: (1) no reasonable person would have believed he
was under threat of deadly force prior to the attempt to arrest Appellant; (2)
Appellant had no right to resist a lawful arrest; and (3) it was unreasonable
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for Appellant to believe that he needed to respond with deadly force to a
routine DUI arrest. See Appellant’s brief at 37-43.
The Commonwealth counters that the trial court’s statements were an
accurate summation of the law, consistent with the facts adduced at trial, and
responsive to Appellant’s closing argument. See Commonwealth’s brief at 26.
Its evidence revealed that, until Appellant was instructed to put his arms
behind his back, there was no violence or resistance displayed by any party.
Id. Further, trial counsel did not dispute this point in her closing argument.
Id. Therefore, statements regarding the events that proceeded the struggle
were accurate summations of the facts. Additionally, the trial court’s
statements on the law tracked relevant precedent in this area, as well as trial
counsel’s closing argument. Id. at 28. We agree with the Commonwealth
and address Appellant’s arguments individually, below.
First, Appellant takes issue with the trial court’s statement that the
Commonwealth had proven that Appellant utilized deadly force and that no
reasonable person would have believed he was under the threat of deadly
force prior to the attempt to arrest Appellant. However, this statement was
entirely consistent with the undisputed facts presented at trial.
At trial, the Commonwealth alleged and the MVR portrayed that no
firearms or threats of force were introduced into the incident until after the
arrest of Appellant failed. Later in the encounter, the video depicted Appellant
shooting his firearm at the troopers, critically wounding Corporal Kelly. At the
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hospital, Appellant admitted to firing his weapon at the officers, even
conceding that he may have killed one of them. Appellant never recanted
these statements. While trial counsel alleged that the situation transformed
into one where Appellant’s response was justified, she never argued that
Appellant did not deploy his firearm or that his actions would have been
justified earlier in the encounter. The Commonwealth strongly contradicted
the defense theory that the situation devolved into one where Appellant’s
response was justified. Instead, it contended that Appellant provoked this
encounter. Id. at 32. Therefore, the trial court’s comments properly steered
the jury towards this factual dispute.
Second, Appellant asserts that the trial court’s declaration that Appellant
had no right to resist a lawful arrest was improper. Again, we are constrained
to disagree, as legal precedent in this area is definitively opposed to
Appellant’s argument. In the context of resisting arrest with respect to the
defense of justification, our Supreme Court has explained that arrestees do
not have the right to resist a lawful arrest unless or until officers put the
arrestee in fear of his own life, as follows:
[A]n arrestee’s use of force in self[-]protection is justified when
the arrestee reasonably believes that such force is immediately
necessary to protect against an arresting officer’s use of unlawful
and deadly force, i.e., force which is readily capable of causing
death or serious bodily injury. An arresting officer’s use of
excessive force capable of causing less than serious bodily injury
or death can be vindicated by recourse to subsequent legal
remedies.
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Thus, . . . there is no justification for resisting arrest; the only
circumstance under which the law will contemplate physical
resistance to a police officer is when the officer unnecessarily uses
unlawfully excessive or deadly force which triggers the right of
self-defense. The focus ... [is] not whether the underlying arrest
was based on probable cause, but rather whether the officers’ use
of force in effectuating a lawful arrest [is] itself, unlawful. A police
officer may only use the amount of force which is necessary to
accomplish the arrest.
Commonwealth v. Biagini, 655 A.2d 492, 499 (Pa. 1995) (quoting
Commonwealth v. French, 611 A.2d 175, 179 (Pa. 1992)); see also 18
Pa.C.S. § 505(b)(1)(i) (The use of force is not justifiable “to resist an arrest
which the actor knows is being made by a peace officer, although the arrest
is unlawful”). Since it is well-settled that arrestees do not have the right to
resist either a lawful or unlawful arrest, the trial court’s instruction was an
accurate summary of the legal precedent in this area. Id.
This instruction aligned with the undisputed facts of the case. A careful
reading of trial counsel’s closing argument reveals that this instruction was
consistent with Appellant’s self-defense argument, because it was premised
upon the undisputed fact that a routine and lawful DUI arrest transformed into
a highly charged and potentially lethal encounter after the botched arrest
attempt put Appellant in fear for his life. Specifically, trial counsel argued that
Appellant’s use of deadly force became justified once the troopers deployed
their tasers and repeatedly punched Appellant in the face and body, which
occurred after Appellant began resisting their lawful DUI arrest. See N.T.
Jury Trial, 6/29/18, at 12-16. Again, it was not until after the officers told
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Appellant to place his arms behind his back that the defense and
Commonwealth theories of the case diverged.
Finally, Appellant contends that the trial court opined that it was
unreasonable for Appellant to respond to a routine DUI arrest with force, when
it said the following:
At any point in time, did the police activity become so
unreasonable that they were, on their own, putting his life in
danger because they were attempting to detain him? Such that it
was reasonable for him to run around his car, access his weapon
and begin a confrontation by introducing a deadly weapon to the
arrest. That is what his argument is, and you have to make a
determination, is that reasonable? Is that a decision that people
can make when the police attempt to arrest them for DUI, and
there is a struggle because the person is not happy about it?
And that happens in everyday life because you get people that do
not want to submit to arrest because they are not happy. Does
that mean the entire event, as it escalates, at some point that the
person could say, okay. They have to stop trying to detain me
now because now I believe I am in danger of death. And because
they continue to try to control me, I can break free and get a gun
and defend myself. That is what the argument is, but that’s only
for you to decide.
N.T. Jury Trial, 6/29/18, at 107-108. A review of the definition of legal
reasonableness reveals that Appellant has mischaracterized the trial court’s
instruction in order to support his argument.
Importantly, reasonableness in the context of the justification defense,
is defined as follows:
The requirement of reasonable belief encompasses two aspects
one subjective and one objective. First, the defendant must have
acted out of an honest, bona fide belief that he was in imminent
danger, which involves consideration of the defendant's subjective
state of mind. Second, the defendant’s belief that he needed to
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defend himself with deadly force, if it existed, must be reasonable
in light of the facts as they appeared to the defendant, a
consideration that involves an objective analysis.
Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012). Stated
differently, an arrestee that was subject to a lawful arrest does not forfeit his
right to subsequently claim a justification defense if he can establish a
subjective and objective reasonable belief that deadly force was a necessary
response to unlawful police action. Id. In this section of the jury charge, the
trial court was attempting to explain the dichotomy between a subjectively-
held reasonable belief and an objectively-held reasonable one. In order to
illustrate a challenging legal concept, the court parsed out trial counsel’s
closing argument and summarized it in light of the definition of
reasonableness. Rather than prejudice Appellant, the trial court’s instruction
gave Appellant’s justification defense full credit. Accordingly, Appellant’s final
contention of error fails.
When viewed as a whole, we find that the trial court adequately
presented the concepts of the justification defense to the jury. See
Commonwealth v. Ragan, 743 A.2d 390, 397 (Pa. 1999). While the
instruction at times may not have been a model of clarity, we do not find that
reversible error occurred. To the extent that the court made definitive
pronouncements regarding deadly force, the lawfulness of the attempted
arrest, the right to resist a lawful arrest, and the reasonableness of the use of
force, it did so consistently with the facts and arguments adduced at trial. The
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method chosen illustrated a difficult legal concept for the jurors, which had
been rendered more challenging to access due to the sole assertion of self-
defense in the closing argument. Since nothing in its instruction was
“inadequate, erroneous, or prejudicial,” we find that the trial court did not
abuse its discretion. See Fletcher, supra at 792. Accordingly, no relief is
due.
In his final claim, Appellant challenges the discretionary aspects of his
sentence. See Appellant’s brief at 46. Specifically, Appellant attacks his
sentence on two related grounds: (1) that the trial court failed to consider
mitigating factors, and (2) that the trial court imposed a sentence outside of
the sentencing guidelines without an adequate statement of reasons. Id.
The following principles apply to our consideration of whether review of
the merits of these claims is warranted. “An appellant is not entitled to the
review of challenges to the discretionary aspects of a sentence as of right.
Rather, an appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction.” Commonwealth v. Samuel, 102 A.3d
1001, 1006-07 (Pa.Super. 2014). In determining whether an appellant has
invoked our jurisdiction, we consider four factors:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id.- 25 -
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Appellant filed both a timely post-sentence motion for reconsideration
of his sentence and a notice of appeal. In his motion, Appellant alleged that
the court failed to properly consider mitigating factors and to provide an
adequate explanation for sentencing above the guidelines. He also raised both
issues in his concise statement of errors complained of on appeal.
Accordingly, Appellant properly preserved his sentencing challenges.
Therefore, we now proceed to determine whether Appellant has raised a
substantial question.
Appellant’s brief contains a statement of reasons relied upon for his
challenge to the discretionary aspects of his sentence as required by Pa.R.A.P.
2119(f). See Appellant’s brief at 46-52. In his statement, Appellant claims
that a substantial question is presented by the fact that the trial court failed
to consider mitigating evidence and adequately state its reasons for exceeding
the standard range and imposing the statutory maximum penalties. Id. We
find that this claim raises a substantial question, as it challenges Appellant’s
alleged excessive sentence in conjunction with an assertion that the court
failed to consider mitigating factors. See Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa.Super. 2014). Accordingly, we will consider the merits of
Appellant’s challenges to his sentence.
The following principles apply to our substantive review of Appellant’s
claims. “When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
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defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa.Super. 2009). “We cannot re-weigh the sentencing
factors and impose our judgment in the place of the sentencing court.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead,
we review the trial court’s determination for an abuse of discretion.
In this context, an abuse of discretion is not shown merely by an
error in judgment. Rather[,] the appellant must establish, by
reference to the record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
A trial court’s sentence “should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S. § 9721(b). “When imposing sentence, a
court is required to consider the particular circumstances of the offense and
the character of the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.” Antidormi, supra at 761 (citations and
quotation marks omitted). Finally, when the trial court has reviewed a
presentence investigation (“PSI”), it is presumed that the trial court is aware
of and has been informed by all appropriate sentencing factors and
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considerations. Commonwealth v. Bullock, 170 A.3d 1109, 1126
(Pa.Super. 2017).
Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we
find that: (1) the court intended to sentence within the guidelines, but “applied
the guidelines erroneously;” (2) a sentence was imposed within the guidelines,
“but the case involves circumstances where the application of the guidelines
would be clearly unreasonable;” or (3) “the sentencing court sentenced
outside the sentencing guidelines and the sentence is unreasonable.” 42
Pa.C.S. § 9781(c).
The trial court imposed the maximum or aggravated range sentences
on all charges except escape. See Trial Court Opinion, 1/18/19, at 8.
Therefore, the sentence must be affirmed unless it is unreasonable. While
reasonableness is not defined in the statute, it “commonly connotes a decision
that is irrational or not guided by sound judgment.” Commonwealth v.
Walls, 926 A.2d 957, 963 (Pa. 2007) (citation and quotation omitted).
Appellant argues that his sentence was unreasonable because the court
did not adequately consider his low IQ, the fact that he had never been in
“serious trouble” before, his mental health history, or that he suffers from a
neurocognitive disorder resulting from a traumatic brain injury. See
Appellant’s brief at 48-49. Appellant further alleges that the trial court did not
state adequate reasons for its deviation from the standard range of the
sentencing guidelines. Id.- 28 -
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Appellant has failed to convince us that the trial court’s exercise of its
broad discretion was unreasonable. The certified record demonstrates that
the trial court properly relied on several factors in electing to impose a
sentence that exceeded the guidelines, all of which established that the court
followed the general principles outlined in § 9721(b), i.e., that the sentence
be consistent with the protection of the public, gravity of the offense as it
relates to the victim and community, and the rehabilitative needs of the
offender. Before issuing its sentence, the court received victim impact
testimony from Corporal Kelly, Corporal Kelly’s wife, Trooper Seiple, and
Colonial Police Chief Roy Seiple. See N.T. Sentencing Hearing, 8/31/18, at 5-
40. Then, the prosecutor argued for maximum consecutive sentences, due to
Appellant’s failure to take responsibility for his actions or express any remorse.
Id. at 40-41.
In fashioning the judgment of sentence, the trial court stated that it had
received the sentencing guidelines and had reviewed the PSI, wherein
Appellant stated that he reinitiated the traffic stop because he was “annoyed”
with Trooper Seiple, that he knew he had not performed well on the field
sobriety test, and that he intentionally tried to disarm the police officers when
they attempted to arrest him. Id. at 42-43. The court also noted several
mitigating factors that it gleaned from the PSI, including: that Appellant had
no prior record, received his high school diploma in 2014, had a low IQ, was
cooperative with the probation department during the pre-sentence
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investigation, had a good upbringing, maintained a “relatively good”
relationship with his mother, and acknowledged some responsibility for the
crime. Id. at 44-45.
The trial court also reviewed psychological and psychiatric evaluations
completed by the Commonwealth, defense expert Dr. Gerald Cook, and a
school psychiatrist in 2013. The court found all three reports to be consistent,
and focused on Dr. Cook’s report, concluding that Appellant has “significant
mental health problems.” Id. at 50. However, according to Appellant’s own
expert, he was not psychotic or delusional at the time of the crime, and his
actions were intentional. Id. at 49.
The court also received mitigating evidence from Appellant’s uncle, who
testified that Appellant was “a good kid,” up until he was assaulted in the
eleventh grade. Id. at 56-57. As a result of that incident, Appellant became
paranoid and always “thought that somebody was out to get him.” Id. at 57-
58. Appellant chose not to speak at sentencing, but trial counsel did offer
argument on his behalf. Id. at 68-81. Counsel reiterated the mitigating
factors concerning Appellant’s age, lack of a prior record, history of mental
health problems, and experience as a victim of a prior assault that resulted in
a traumatic brain injury. Id. at 68-81. Having taken all of this information
into consideration, the court then imposed the aforementioned sentence.
Appellant has failed to establish that the sentence was irrational or
guided by unsound judgment, because multiple crimes were committed during
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this event notwithstanding the brief time in which it took place. Our review
confirms that the trial court was aware of, considered, and weighed
Appellant’s mitigating factors, along with other relevant sentencing factors.
Significantly, the court found that Dr. Cook’s psychological evaluation was
compelling evidence of the danger that Appellant presented to the community.
It explained, the report “[sent] a chill through my body,” because the doctor
found that despite his mental health problems, Appellant “knew what he was
doing and intended to shoot these troopers.” Id. at 82.
Additionally, while the court discussed the details of the assault in detail,
it only did so to highlight why this was not an ordinary case of aggravated
assault, such that an upward departure from the guidelines was appropriate.
Use of the underlying facts in this manner is permissible as long as it was not
the only factor relied on when imposing a sentence above the guidelines. See,
e.g., Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006)
(upholding imposition of an aggravated range sentence where one of the
grounds for doing so was that case deviated from a “typical” case of the
offense under consideration).
The record establishes that the court considered Appellant’s mental
health history in detail, but found this mitigating factor and others were
outweighed by the seriousness of the crime and the impact Appellant’s actions
had on the community. Although Appellant received an extreme sentence by
virtue of the fact that the aggregate sentence exceeds the average lifespan,
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the sentence fashioned was fully informed by all of the facts and circumstances
presented in the PSI report, multiple mental health evaluations, and the victim
and defense testimony provided at sentencing. Importantly, while we may
have sentenced Appellant differently, our standard of review does not give us
license to reweigh those mitigating circumstances against the aforementioned
factors. Macias, supra at 778. The trial court may have reached the limits
of its discretion, but on the record before us we cannot reach the conclusion
that the trial court exceeded its authority.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2020
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