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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVON L. SMITH
Appellant No. 1717 WDA 2015
Appeal from the Judgment of Sentence September 14, 2015
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001619-2014
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 06, 2016
Davon L. Smith appeals from the judgment of sentence entered in the
Court of Common Pleas of Allegheny County. After careful review, we
affirm.
The trial court made the following factual findings:
Patrolman William T. Hanelly, Jr. testified that on
June 7, 2014 he responded to a call at which he met
Adamec Stevens and John McConnell. Adamec
Stevens identified himself as the victim. He had
blood coming out of his mouth and bruises on his
face. He was being treated by emergency medical
providers. Mr. Stevens indicated that a man named
‘Flip’ had assaulted him. Patrolman Hanelly
identified Davon Smith as ‘Flip.’
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*
Retired Senior Judge assigned to the Superior Court.
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Adamec Stevens testified that on June 7, 2014 he
was at the Monkey Wharf bar in Altoona. He glanced
up at a camera in the bar and saw a dispute going
on outside. Someone ran into the bar asking for
help. Mr. Stevens testified that ‘Flip’ and his
girlfriend were involved in the dispute. Mr. Stevens
went outside to try to help break up the dispute.
The individual Mr. Stevens knew as ‘Flip’ left and
returned a short time later and began hitting Mr.
Stevens. Mr. Stevens testified he felt that his
assailant was hitting him with something harder than
just his fists.
Mr. Stevens further testified that after the assault
‘Flip,’ later identified as Mr. Smith, asked him to tell
the District attorney that he had pulled a knife on
him at the time of the assault. He asked Mr.
Stevens for his cell phone number and Mr. Stevens
gave him a made up number. After that, several
acquaintances approached Mr. Stevens and told him
that ‘Flip’ knew it was a fake number and he ‘was
done for.’
Patrolman Ryan Caputo obtained video surveillance
from the Monkey Wharf bar that showed the
incident. The video shows Mr. Stevens attempting to
mediate an altercation between a female named
Whitney and Mr. Smith. Mr. Smith leaves the area
for approximately two and a half minutes. He then
returns and punches the victim twice before the
victim falls into a white car and then to the ground.
Mr. Smith continues to punch Mr. Stevens while he is
on the ground and kicks him in the head.
Mr. Smith described the activities shown on the
surveillance video. He indicated that Mr. Stevens
challenged him while they were outside so he went
back into the bar. He testified that his wife’s friend
came in and told him to come back outside because
Mr. Stevens’ friend was arguing with Mr. Smith’s
wife. Mr. Smith testified that he went back outside
and called a cab. From where he was standing he
could see Mr. Stevens touch his wife. Mr. Smith
testified that he thought Mr. Stevens had a knife and
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Mr. Smith had just been stabbed so he was a little
more aggressive than he would have been otherwise.
Trial Court Opinion, 1/13/2016, at 2-6.
Smith was charged with one count of aggravated assault 1, one count
of simple assault2 and one count of harassment.3 On August 6, 2015, a jury
found Smith guilty of all three counts. The Honorable Elizabeth A. Doyle
sentenced Smith to 10 to 20 years’ incarceration for count 1 and merged
counts 2 and 3 into count 1 for purposes of sentencing. Smith filed a motion
to reconsider his sentence on September 22, 2015, and Judge Doyle denied
his post-sentence motion on September 28, 2015. Smith then filed a timely
notice of appeal on October 28, 2015. On October 29, 2015, the trial court
directed Smith to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Judge Doyle filed her Rule 1925(a) opinion on
January 13, 2016.
Smith raises the following issues on appeal:
1. Whether the trial court erred by overruling Appellant’s
hearsay objection at trial where the evidence at trial tended
to show that the statements were inadmissible hearsay under
Pa.R.E. 801 which did not fall under any exceptions to the
hearsay rule to permit its admission.
2. Whether the trial court erred by refusing to give Suggested
Standard Jury Instruction 9.502, Justification: use of
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1
18 Pa.C.S. § 2702(a)(1).
2
18 Pa.C.S. § 2701(a)(1).
3
18 Pa.C.S. § 2709(a)(1).
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force/deadly force in defense of others, where the evidence at
trial tended to show that Appellant justifiably believed that
the use of force was immediately necessary for the protection
of his wife, Whitney Smith.
Appellant’s Brief, at 4.
In his first issue, Smith contends that the trial court abused its
discretion when it admitted Stevens’ testimony that six acquaintances of
Smith approached Stevens in the Blair County Jail and said that “[Smith]
had found out that it’s a false number and that [Stevens] was done for.”
4
N.T. Trial, 8/5/15, at 78. While the Commonwealth maintains Stevens’
testimony was admissible under the co-conspirator exception to the hearsay
rule, see Pa.R.E. 803(25)(e),5 Smith argues that the testimony is
inadmissible under the hearsay exception because the Commonwealth failed
to present sufficient evidence that a conspiracy existed. Appellant’s Brief, at
9. Smith also suggests that the “Commonwealth failed to provide a reason
for the unavailability of the ‘acquaintances.’” Id. at 18.
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4
“Our standard of review relative to the admission of evidence is for an
abuse of discretion.” Commonwealth v. Feliciano, 67 A.3d 19, 27 (Pa.
Super. 2013).
5
A statement offered against an opposing party that was made by the
party's co-conspirator during and in furtherance of the conspiracy is not
hearsay. The statement may be considered but does not by itself establish
the existence of the conspiracy or participation in the conspiracy. This rule
applies regardless of whether the declarant is available as a witness. See
Pa.R.E. 803(25)(e).
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“Only slight evidence of the conspiracy is needed for a co-conspirator's
statement to be introduced and the order of proof is discretionary.”
Feliciano, 67 A.3d at 27. To prove a criminal conspiracy,
[t]he Commonwealth must establish that the
defendant (1) entered into an agreement to commit
or aid in an unlawful act with another person or
persons, (2) with a shared criminal intent, and (3)
an overt act done in furtherance of the conspiracy.
Circumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the
circumstances surrounding such conduct may create
a web of evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt.
Additionally, an agreement can be inferred from a
variety of circumstances including, but not limited to,
the relation between the parties, knowledge of and
participation in the crime, and the circumstances and
conduct of the parties surrounding the criminal
episode. These factors may coalesce to establish a
conspiratorial agreement beyond a reasonable doubt
where one factor alone might fail.
Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa. Super. 2005).
Hearsay statements made by a co-conspirator are
allowed to be admitted against an accused if the
statements are made during the conspiracy, in
furtherance thereof, and where there is other
evidence of the existence of a conspiracy. This
exception applies even where no party has been
formally charged with conspiracy. Nor need the co-
conspirator, whose declaration is testified to, be on
trial. To lay a foundation for the co-conspirator
exception to the hearsay rule, the Commonwealth
must prove that: (1) a conspiracy existed between
declarant and the person against whom the evidence
is offered, and (2) that the statement sought to be
admitted was made during the course of the
conspiracy.
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Commonwealth v. Basile, 458 A.2d. 587, 590 (Pa. Super. 1983).
The Commonwealth presented sufficient circumstantial evidence that a
conspiracy existed to intimidate Stevens.6 Stevens testified that Smith
“asked [Stevens] to contact the District Attorney to let them know that
[Stevens] pulled a knife on [Smith] that night and that’s why [Smith] hit
[Stevens].” N.T. Trial, 8/5/15, at 74. Stevens also testified that Smith
asked Stevens for his cell phone number, and Stevens gave Smith a fake
number. Id. at 74.
The trial court found that “circumstantially, there must have been at
least a conversation between the ‘acquaintances’ and Smith indicating that
Stevens had given Smith a fake number. The fact that six different
acquaintances approached Stevens is circumstantial evidence of Smith’s
determination to convey a threat to Stevens.” Trial Court Opinion, 1/13/16,
14-15. The Commonwealth presented testimonial evidence that Smith
approached Stevens about lying to the District Attorney and asked for
Stevens’ phone number. This testimony, considered with Stevens’ testimony
that multiple individuals approached Stevens to both threaten him and tell
him that Smith knew about the fake number, is sufficient to prove that
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6
The Commonwealth argues that the “confrontation and subsequent threat
[that] Mr. Stevens was ‘done for’ clearly fits the description of retaliation
and/or intimidation of a witness and required [Smith’s] knowledge the
number was fake.” Appellee’s Brief, at 7; 18 Pa.C.S. § 4952; 18 Pa.C.S. §
4953.
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Stevens conspired with more than one individual to intimidate Smith. See
Feliciano, supra. The acquaintances would not have known about the fake
number unless Smith had a conversation with the acquaintances about the
fake number.7
With regard to Smith’s second issue, he argues that the trial court
erred by refusing to give the standard jury instruction on the use of deadly
force in defense of others.8 According to the trial court, the court “declined
to give the instruction based on the totality of the testimony. Smith’s
testimony indicated that he and the victim had a previous altercation and
that he became increasingly agitated because he thought that Stevens was
getting in his wife’s face.” Trial Court Opinion, 1/13/16, at 15-16.
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7
Additionally, the out-of-court statement does not implicate the
Confrontation Clause because the statement had a strong indicia of
reliability. The acquaintances had no reason to lie to Stevens about the fake
number or the threat. See Commonwealth v. Coccioletti, 425 A.2d 387,
391 (Pa. 1981) (confrontation clause not violated whenever declarations had
strong ‘indicia of reliability’); see also Dutton v. Evans, 400 U.S. 74, 89
(1970).
8
Pa.S.S.J.I. § 9.502; see also 18 Pa.C.S. § 506 (“The use of force upon or
toward the person of another is justifiable to protect a third person when:
(1) the actor would be justified under section 505 (relating to use of force in
self-protection) in using such force to protect himself against the injury he
believes to be threatened to the person whom he seeks to protect; (2) under
the circumstances as the actor believes them to be, the person whom he
seeks to protect would be justified in using such protective force; and (3)
the actor believes that his intervention is necessary for the protection of
such other person.”).
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This Court has stated: “[O]ur standard of review when considering the
denial of jury instructions is one of deference—an appellate court will reverse
a court's decision only when it abused its discretion or committed an error of
law.” Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011)
(citations omitted), appeal granted on other grounds, 35 A.3d 3 (Pa. 2012).
Further, we must determine “whether such charge was warranted by the
evidence in the case.” Commonwealth v. Boyle, 733 A.2d 633, 639
(1999). Additionally, “it has long been the rule in this Commonwealth that a
trial court should not instruct the jury on legal principles which have no
application to the facts presented at trial.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. 2014).
According to Smith, he believed Stevens provoked him and was
“touching on [Smith’s] wife.” N.T. Trial, 12/18/15, at 62. The only evidence
presented suggesting that Smith was defending his wife, however, was
Smith’s testimony. Testimony from Patrolman Ryan Caputo of the Altoona
Police Department, the video surveillance evidence obtained from the
Monkey Wharf Bar, as well as testimony from Whitney Smith, Smith’s wife,
overwhelmingly corroborated the victim’s account of the events as they
transpired on June 6, 2014 and June 7, 2014. See Appellee’s Brief, at 11-
12. The evidence presented did not support a jury instruction on the use of
deadly force in defense of others, and therefore, we find no abuse of
discretion.
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Judgment of sentence affirmed.
PLATT, J., joins the memorandum.
OLSON, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
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