J-A27033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JASON GLINKA
Appellant No. 1906 EDA 2015
Appeal from the Judgment of Sentence June 22, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0012559-2013
BEFORE: PANELLA, LAZARUS, FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 28, 2017
Appellant, Jason Glinka, appeals from his judgment of sentence of ten
to twenty years’ imprisonment, followed by five years’ probation, imposed
after a jury found him guilty of attempted murder1 and possession of an
instrument of crime (“PIC”).2 Appellant argues that the evidence is
insufficient to sustain his convictions because the Commonwealth failed to
prove the requisite mens rea and failed to disprove self-defense beyond a
reasonable doubt. We affirm.
The trial court summarized the evidence against Appellant as follows:
On August 12, 2013, at approximately 8:00 p.m., Scott
Steigleman (“Complainant”) encountered Regina Burkle,
his ex-girlfriend, as he walked around the corner to get
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 901(a), 2502(a).
2
18 Pa.C.S. § 907(a).
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cigarettes and drinks from his mother’s house, located at
2938 Belgrade Street. Complainant and Ms. Burkle had an
on-and-off relationship since 2011 and were engaged in
2013. They continued to speak frequently even after they
ended their relationship. On that night, the Complainant
testified that he was shocked to see Ms. Burkle because he
thought she was out of town. Ms. Burkle brushed past him
down the street when he asked her what she was doing in
his neighborhood. The Complainant followed Ms. Burkle
into the pizza shop and demanded an answer. Five
minutes later, a pizza shop employee asked Ms. Burkle if
the Complainant was bothering her and told the
Complainant to leave. Ms. Burkle called [Appellant] to pick
her up after the Complainant repeatedly refused to leave.
As the Complainant walked out of the pizza shop, he
encountered [Appellant], whom he had known for roughly
two years.[3] [Appellant] and the Complainant previously
had an altercation on Facebook over [Appellant]
romantically pursuing Ms. Burkle while the Complainant
tried to reconcile with her. Complainant punched
[Appellant] after [Appellant] pushed him out of the way,
causing [Appellant] to fall.[4] After [Appellant] regained his
footing, the Complainant struck him twice more, sending
him to the ground. [Appellant] stood up again and struck
the Complainant with a knife near his elbow and then once
more on his shoulder. He jumped on top of the
Complainant, straddled him, and stabbed him numerous
times, while the Complainant tried to block the strikes.
Complainant testified that he was stabbed [fourteen]
times. Ms. Burkle remained inside the pizza shop and
testified that she did not witness the fight.
The Complainant received help from the pizza shop
employee to his aunt’s house on Cedar Street, as he was
3
Appellant testified that he found Complainant exiting the pizza parlor and
walked toward him, “kn[owing] that something was . . . going to happen.”
N.T., 2/2/15, at 19-20; see also id. at 21-24 (similar testimony).
4
A crowd gathered around Appellant and Complainant to watch the fight.
Id. at 21-40. Appellant testified that the crowd encouraged Complainant
and was hostile toward him. Id.
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unable to walk home. Officer Kirk McKee responded to a
radio call for [a] stabbing and arrived at the Complainant’s
aunt’s house, where he found the Complainant bleeding on
the ground and generally unresponsive. Based on the
Complainant’s condition, he immediately placed the
Complainant in his patrol car and rushed him to Temple
University Hospital.
The Complainant’s medical records indicate that he had
multiple stab wounds, including a wound to the back of his
scalp, seven wounds to the left back, one stab wound to
his left elbow, and one stab wound to the left shoulder. An
MRI test revealed that the Complainant had a blood clot,
placing pressure to his spinal cord, which caused his
inability to move his lower extremities and suffer
dysfunction of his urinary tract. Complainant further
suffered a fracture to a part of his spine and had fluid in
his chest cavities. Subsequent blood testing revealed that
the Complainant had Xanax, oxycodone, cocaine and
marijuana in his system at the time of the stabbing.
Complainant spent [seven to ten] days in the hospital
following the stabbing and an additional month at a
rehabilitation facility. Due to his inability to walk and
control his bowels as a result of this incident,
[Complainant] is unable to work and play with his children.
The Complainant later gave a statement to the police, but
refused to sign his name to the document. Complainant
initially only gave a description of the person who stabbed
him, but later provided the name “Jason” to the detectives.
In addition, the Complainant identified [Appellant] by
picture but refused to sign the picture in fear of retaliation.
Trial Ct. Op., 1/11/16, at 2-4 (record citations omitted).
Following a three-day trial, the jury found Appellant guilty of the
aforementioned crimes. On June 22, 2015, the trial court imposed sentence.
On June 24, 2015, Appellant filed a timely notice of appeal. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
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Appellant raises two arguments on appeal, which we re-order for our
review:
1. Was not the evidence also insufficient for conviction of
attempted murder, insofar as the Commonwealth failed to
prove that [Appellant] had the requisite mens rea?
2. Was not the evidence insufficient to prove the offenses
of attempted murder and possession of an instrument of
crime, insofar as self-defense was raised, and the
Commonwealth failed to disprove self-defense beyond a
reasonable doubt?
Appellant’s Brief at 3.
Appellant first argues that the evidence was insufficient to sustain his
conviction for attempted murder, because the Commonwealth failed to prove
that he harbored specific intent to commit attempted murder. We disagree.
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.
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Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted), appeal denied, 138 A.3d 4 (Pa. 2016).
A person is guilty of attempted murder when he takes a substantial
step toward the commission of a killing with the specific intent to commit
that act. 18 Pa.C.S. §§ 901(a), 2502(a); Commonwealth v. Blakeney,
946 A.2d 645, 652 (Pa. 2008). The jury may find specific intent to kill “from
a defendant’s words or conduct or from the attendant circumstances,
together with all reasonable inferences therefrom, and may be inferred from
the intentional use of a deadly weapon on a vital part of the body of another
human being.” Commonwealth v. Hornberger, 270 A.2d 195, 198 (Pa.
1970).
Viewed in the light most favorable to the Commonwealth, the evidence
establishes that Appellant had the specific intent to kill Complainant. During
a fistfight, Appellant pulled a knife and stabbed Complainant in the back,
collapsing Complainant’s lung, causing his chest cavities to fill with fluid, and
resulting in a blood clot that permanently paralyzed his legs and impaired
function of his urinary tract and bowels. When Complainant fell to the
ground, Appellant leaped on top of his prone body and stabbed him in the
back of the head and six more times in the back. Complainant would have
died had he not undergone surgery immediately.
The sheer number of times that Appellant stabbed Complainant in his
back and in the back of his head established Appellant’s specific intent. Cf.
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Commonwealth v. Mason, 741 A.2d 708, 712-15 (Pa. 1999) (concluding
evidence was sufficient to establish specific intent to commit first degree
murder where defendant stabbed victim eighteen times in head, neck, chest,
back, abdomen, arm, groin and leg, despite defendant’s claim of
intoxication), abrogated on other grounds, Commonwealth v. Freeman,
827 A.2d 385 (Pa. 2003); Commonwealth v. Cain, 503 A.2d 959, 966-67
(Pa. Super. 1986) (holding specific intent to kill established where defendant
stabbed victim thirteen times, including six in his back, twice damaging
victim’s internal organs).
In his second argument, Appellant contends that the Commonwealth
failed to disprove self-defense beyond a reasonable doubt. Appellant insists
that (1) Complainant provoked the fight, (2) Appellant reasonably believed
that he had to use deadly force to protect himself from serious bodily
injury,5 and (3) Appellant had no duty to retreat under the circumstances.
For the reasons that follow, we conclude that no relief is due.
5
The Commonwealth filed an application for post-submission communication
to contest a point made by Appellant’s counsel at oral argument before this
Court—specifically, that Appellant suffered a broken nose and actually
sustained serious bodily injury giving rise to his claim of self-defense.
Although we agree with the Commonwealth that Appellant did not raise this
point in his brief or at trial, we find this point immaterial to our discussion.
We discern no basis upon which to conclude that Appellant failed to raise the
issue of self-defense. Because our analysis focuses on the evidence
rebutting the claim of self-defense, we dismiss the Commonwealth’s
application as moot.
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It is well settled that the Commonwealth bears the burden of
disproving a self-defense claim beyond a reasonable doubt.
Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011). A claim of
self-defense
requires evidence establishing three elements: (a) [the
defendant] reasonably believed that he was in imminent
danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent
such harm; (b) [the defendant] was free from fault in
provoking the difficulty which culminated in the [victim’s
injuries]; and (c) [the defendant] did not violate any duty
to retreat.
Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (citations and
quotation marks omitted). Serious bodily injury is “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301. “Although the Commonwealth is
required to disprove a claim of self-defense . . . a jury is not required to
believe the testimony of the defendant who raises the claim.”
Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990) (citation
omitted).
A number of factors, including whether complainant was
armed, any actual physical contact, size and strength
disparities between the parties, prior dealings between the
parties, threatening or menacing actions on the part of
complainant, and general circumstances surrounding the
incident, are all relevant when determining the
reasonableness of a defendant’s belief that the use of
deadly force was necessary to protect against death or
serious bodily injuries . . . No single factor is dispositive.
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Furthermore, a physically larger person who grabs a
smaller person does not automatically invite the smaller
person to use deadly force in response.
Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super. 2014) (citations
omitted).
Viewed in the light most favorable to the Commonwealth, the evidence
disproves Appellant’s arguments relating to self-defense. First, Appellant
asserts that Complainant ambushed him, but the evidence demonstrates
that Appellant travelled to the pizza parlor to confront Complainant, found
Complainant as he exited the pizza parlor, and walked toward him,
“kn[owing] that something was . . . going to happen.” See N.T., 2/2/15, at
19-20.
Next, Appellant emphasizes that Complainant knocked Appellant down
twice near the beginning of their fistfight. However, Appellant unreasonably
escalated the fight by twice stabbing Complainant—who was unarmed—while
Complainant was standing. Furthermore, Appellant straddled Complainant
and stabbed him many more times after Complainant collapsed to the
ground. See Smith, 97 A.3d at 789 (noting Commonwealth disproved self-
defense beyond reasonable doubt where defendant unreasonably escalated
altercation by attacking victim with box cutter after victim pushed him).
Accordingly, the jury could reasonably infer that Appellant did not
reasonably fear for his life and used more force than was necessary to
defend himself from Complainant’s punches. See Commonwealth v.
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Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc) (concluding
Commonwealth negated element of self-defense where defendant used
“more force than necessary” to defend himself; defendant “was at least
seven inches taller than victim, stabbed victim [nineteen] times all over
front and back of torso, and wounds were so deep that victim’s intestines
protruded from his abdomen”); Commonwealth v. Gillespie, 434 A.2d
781, 784 (Pa. Super. 1981) (rejecting claim of self-defense when defendant
used greater force than was reasonably necessary to protect against death
or serious bodily injury during fight on public sidewalk by striking victim in
head twice with baseball bat and kicking prostrate victim in head).
Third, Appellant argues that he had no duty to retreat during the fight,
because he reasonably believed that he could not retreat with complete
safety because he was in the heat of battle amidst hostile onlookers and
reasonably believed that he was fighting for his life. The evidence shows,
however, that Complainant collapsed to the ground when Appellant stabbed
him. It was reasonable for the jury to conclude that Appellant could have
retreated at this point with complete safety—but in violation of his duty to
retreat, he chose to continue the encounter, jump on top of Complainant,
and stab him multiple additional times.
Lastly, Appellant’s flight after the stabbing established his
consciousness of guilt, thereby refuting his claim that he reasonably believed
that he had to stab the prone victim repeatedly in the back to protect
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himself. See, e.g., Commonwealth v. Spotz, 870 A.2d 822, 825 n. 10
(Pa. 2005) (reiterating that evidence of defendant’s flight and/or
concealment following crime is admissible to establish an inference of
consciousness of guilt).
In sum, when we review the evidence in the light most favorable to
the Commonwealth, we are constrained conclude that the evidence was
sufficient to support the verdict.6
Judgment of sentence affirmed. Application for post-submission
communication dismissed as moot.
6
We recognize that other factfinders might have concluded that Complainant
was equally to blame for the tragic outcome of this brawl or that Appellant
should not be punished for his conduct due to the rapid and explosive nature
of the events. Unfortunately for Appellant, the test is not what other juries
might have done but whether the evidence was sufficient for this jury to
reach its verdict.
Moreover, in his Pa.R.A.P. 1925(b) statement of matters complained of
on appeal, Appellant contended that the trial court erred in sustaining the
Commonwealth’s objections to Appellant’s testimony about Complainant’s
reputation for violent behavior and to defense counsel’s reference to
Complainant’s violent reputation during closing argument. However, we
cannot address these issues because Appellant did not raise them in his
appellate brief. See Commonwealth v. Furrer, 48 A.3d 1279, 1281 n. 3
(Pa. Super. 2012) (noting that under Pa.R.A.P. 2119(a), issues not
developed in appellate brief with pertinent “discussion” and “citation of
authorities” are waived).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
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