Opinion
J-S04010-14 No. 3214 EDA 2012
03-25-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DONTE HODGES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 16, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001014-2011
BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY BENDER, P.J.
Former Justice specially assigned to the Superior Court.
Donte Hodges (Appellant) appeals from the judgment of sentence of five to ten years' incarceration, entered on March 16, 2012, following a bench trial resulting in his conviction for aggravated assault and related crimes. We affirm.
We adopt the following statement of facts:
Twin sisters, Dortay Outlaw and Shontay Outlaw Hodges, who lived half a block from each other, had an ongoing dispute over a borrowed laptop computer that belonged to their older sister. On the morning of November 23, 2010, Dortay Outlaw arrived at her twin sister's house demanding that the laptop be returned to her and creating a scene that the police were called to diffuse. That afternoon around 2:45 p.m., Jamaar Thomas, Dortay Outlaw's paramour, made a phone call to [Appellant], Shontay Outlaw Hodges' husband, and the men had a heated phoneTrial Court Opinion (T.C.O.), 05/15/2013, at 2-3 (citations omitted). The Commonwealth also established that Appellant fired multiple shots at the victim after the victim had fallen to the ground. See Notes of Testimony (N.T.), 1/27/12, at 27-28, 63-64, 78, 85.
conversation regarding the laptop. Later that evening; around 6:30 p.m., while taking out the trash in the side alley of his paramour Dortay Outlaw's home at 1325 North Farson Street, [Philadelphia, PA,] unarmed [victim] Jamaar Thomas was approached by [Appellant,] Donte Hodges[,] and [his] friend Wiley White, who were each carrying loaded firearms. The [victim] and [Appellant] exchanged words, a physical altercation began[,] and [Appellant] shot the [victim] three times[,] hitting him in the left thigh and shin. Immediately after the shooting, [Appellant] returned to his truck parked in front of his house and called the police to report the incident. The [victim] immediately lost consciousness and suffered heavy bleeding on the scene before he was transferred to the hospital by the police, where he suffered cardiac arrest and remained for some time. Complainant continues to struggle daily with the injuries from the shooting.
Appellant was charged with aggravated assault, possession of an instrument of crime (PIC), simple assault, and recklessly endangering another person (REAP). A bench trial was held on January 27, 2012, and February 3, 2012. At trial, Appellant claimed self-defense, testifying that the victim was the aggressor, was much larger, had a reputation for violence, and possessed and pulled out a gun just prior to Appellant's shooting him. See T.C.O. at 3. No gun belonging to the victim was recovered at the scene. The trial court concluded that there was no credible evidence that the victim possessed or threatened Appellant with a gun. Id.
Respectively, 18 Pa.C.S. §§ 2702(a), 907(a), 2701(a), and 2705. Appellant was also charged with Criminal Attempt - Murder, 18 Pa.C.S. § 901(a), but this charge was dismissed prior to trial.
Appellant was found guilty on all counts. On March 16, 2012, the trial court sentenced Appellant to the mandatory minimum of five to ten years' incarceration for aggravated assault and a concurrent term of two-and-a-half to five years' imprisonment for PIC. No further penalty was imposed for the remaining offenses. Appellant filed a post-sentence motion, claiming the verdict was against the weight of the evidence. After the motion was denied by operation of law, Appellant appealed and complied with Pa.R.A.P 1925(b).
On appeal, Appellant challenges the sufficiency and weight of the evidence presented in support of his conviction. See Appellant's Brief at 4.
The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses beyond a reasonable doubt.Commonwealth v. Mitchell, 839 A.2d 202, 205 (Pa. 2003) (citing Commonwealth v. Miller, 664 A.2d 1310, 1314 (Pa. 1995)). The factfinder resolves questions of credibility and "is free to believe all, part, or none of the evidence." Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citing Commonwealth v. Laird, 988 A.2d 618, 624 (Pa. 2010)).
Appellant does not claim that the evidence was insufficient to establish aggravated assault, PIC, simple assault, or REAP. Rather, Appellant challenges the court's rejection of his self-defense claim. According to Appellant, the victim provoked a confrontation by throwing the first punch; the victim was much larger than Appellant and had a reputation for violence; and Appellant further escalated the confrontation by threatening Appellant with a gun. In light of this evidence, Appellant contends that the Commonwealth failed to disprove his claim. His contention is without merit.
"The use of deadly force is not justifiable ... 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[.]" 18 Pa.C.S. § 505(b)(2). A defendant must introduce "some evidence" to place the defense in issue. Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012). Once a defendant properly raises a self-defense claim, the Commonwealth must disprove the claim. Id. (quoting Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977)).
The Commonwealth sustains [its] burden of negation if it proves any of the following: that the [defendant] was not free from fault in provoking or continuing the difficulty which resulted in the [assault]; that the [defendant] did not reasonably believe that [he] was in imminent danger of death or great bodily harm[;] ... or that the [defendant] violated a duty to retreat or avoid the danger.Mouzon, 53 A.3d at 740-41 (internal quotation omitted).
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, 948 A.2d 818, 824 (Pa. Super. 2008) (quoting Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990)).
Taking the evidence in the light most favorable to the Commonwealth as verdict winner, we conclude that the Commonwealth sufficiently disproved Appellant's claim of self-defense by establishing that Appellant provoked the events that resulted in the shooting. Several hours after a heated phone conversation between Appellant and the victim, Appellant and his friend, both armed, left Appellant's home, walked down the street to the victim's residence, and confronted the unarmed victim in an alley as he took out his trash. See, e.g., Commonwealth v. Hammond, 953 A.2d 544, 599-560 (Pa. Super. 2008) (rejecting a self-defense claim where defendant went to the victim's apartment complex armed with gun, confronted unarmed victim, and shot him following an altercation).
Further, Appellant did not reasonably believe he was in imminent danger of death or serious bodily injury. To the extent the trial court accepted testimony that the victim punched Appellant, such evidence does not justify Appellant's use of deadly force in shooting the victim multiple times, particularly as the evidence established that at least two of those shots were fired after the victim had fallen to the ground. See Mouzon, 53 A.3d at 752 (rejecting the reasonability of self-defense claim where evidence established that the defendant shot the victim after victim punched him multiple times); Commonwealth v. Washington, 692 A.2d 1024, 1029 (Pa. 1997) (concluding that defendant used more force than reasonably necessary to protect himself, based on number and severity of victim's wounds).
Finally, the trial court rejected Appellant's self-serving testimony that the victim possessed and/or threatened Appellant with a gun. See Bullock, 948 A.2d at 824. Other testimony, found credible by the trial court, established that the victim did not own or possess a gun at the time of the incident, and no evidence of a firearm belonging to the victim was found at the scene.
Turning to Appellant's weight of the evidence claim, we observe that a trial court's decision to deny a post-sentence motion challenging the weight of the evidence is "the least assailable of its rulings." Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013) (internal quotation omitted).
[W]e may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of 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. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)).
Appellant does not address our standard of review, nor does he support a claim that the court abused its discretion in denying his post-sentence motion. Rather, Appellant claims that the trial court misapplied the law in arriving at its verdict, placing the burden on Appellant to prove his self-defense claim. In support of this claim, Appellant suggests that the court failed to credit sufficiently evidence that the victim threw the first punch during their confrontation and ignored evidence that the victim possessed and/or threatened Appellant with a gun.
We have reviewed the evidence and the trial court's opinion. The court's verdict does not shock the conscience, and we discern no abuse of the trial court's discretion in ruling on Appellant's weight claim. "Conflicts in the evidence and contradictions in the testimony of any witnesses are for the fact-finder to resolve." Sanders, 42 A.3d at 331 (citing Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). The trial court, as fact-finder, was empowered to weigh the evidence and was free to reject Appellant's self-serving and unsubstantiated testimony that the victim threatened him with a gun. Id.; Ramtahal, 33 A.3d at 607; Bullock, 948 A.2d at 824. As noted by the trial court and discussed above, the evidence established that Appellant did not act in self-defense when he committed the crime of aggravated assault.
For the above reasons, Appellant's sufficiency and weight of the evidence claims are without merit. Accordingly, we affirm.
Judgment of sentence affirmed.
Judge Shogan files a Concurring Statement. Judgment Entered. _________________
Joseph D. Seletyn, Esq.
Prothonotary