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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYAN BARNETT, : No. 482 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, January 29, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006166-2015
BEFORE: BOWES, J., OTT, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 18, 2017
Bryan Barnett appeals from the January 29, 2016 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County after
his conviction in a waiver trial of aggravated assault, simple assault, and
recklessly endangering another person.1 The trial court sentenced appellant
to 6 to 12 years of imprisonment for the aggravated assault conviction and
imposed no further penalty on the remaining convictions. We affirm.
The trial court set forth the following factual history gleaned from the
trial transcript:
The complainant, Ibin McAffee (Mr. McAffee),
testified at trial that on March 17, 2015, around
2:00 a.m., he encountered Appellant and another
male near the corner of Locust and Juniper Streets,
in the city and county of Philadelphia, Pennsylvania.
1
18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), and 2705, respectively.
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Mr. McAffee was already acquainted with Appellant,
who asked Mr. McAffee to get him drugs. When
Mr. McAffee attempted to call his drug connection,
Appellant’s companion “got scared” and hastily
walked away to hail a cab. Appellant followed him.
Later that morning, Mr. McAffee was walking
with another male down 13th Street toward Spruce
Street. In route to buy drugs from someone else,
Mr. McAffee happened to pass by the building where
Appellant resided. According to Mr. McAffee,
Appellant came from behind and punched him
multiple times in the face, knocked him to the
ground, and “stomped” all over his body.
Throughout the assault, Appellant “just kept saying
[Mr. McAffee] fucked his money up” and to [sic]
“[d]on’t let that happen again.”
After Appellant finished beating him,
Mr. McAffee “got high” on crack cocaine and “slept
for a day and a half.”[Footnote 1] On March 19,
2015, after the drugs wore off, Mr. McAffee
presented to the hospital and was diagnosed with
multiple broken bones in his face that required
reconstructive surgery. Mr. McAffee was discharged
on March 22, 2015, and his physician’s discharge
report states that he suffered a “displaced fracture of
the right zygoma, a fracture of the lateral and
anterior wall of the maxillary sinus, a depressed
fracture of the right orbital wall, and a right nasal
bone fracture.” Mr. McAffee was “admitted to plastic
surgery so he could undergo open reduction and
internal fixation of the fracture,” which involved
using bone from Mr. McAffee’s skull to stabilize the
fracture around his eye.
[Footnote 1] Mr. McAffee had also used
crack cocaine to get high before the
assault occurred.
On March 25, 2015, Mr. McAffee contacted the
police and gave a statement to Detective James
Callahan, in which he identified Appellant, by his first
name, as the person who severely beat him. The
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next day, March 26, 2015, Mr. McAffee identified
Appellant in a photo array.[Footnote 2]
[Footnote 2] On direct examination,
Mr. McAffee claimed he did not know
Appellant “personally” and had briefly
seen him only “a couple of times before.”
However, on cross-examination
Mr. McAffee admitted he had prior sexual
relations with Appellant and they would
“drink a few beers together.”
Mr. McAffee also admitted that his trial
testimony conflicted in several ways with
his statement to Detective Callahan. For
example, he told police that his
encounter with Appellant was unrelated
to drugs, but at trial he claimed that
Appellant had approached him to obtain
drugs and that Mr. McAffee was seeking
to purchase drugs at the time of the
assault.
Appellant as well testified at trial and gave a
contrary version of events. Appellant claimed that
on the evening of March 16, 2015, he frequented
several bars with a male named Steve, whom
Appellant had “just met.” Appellant testified that he
knew Mr. McAffee, who was a prostitute and “like a
panhandler guy that’s a drugee [sic].” Appellant
testified that he and Mr. McAffee had “good
relationships” in the past and had been sexually
intimate on several occasions.
Appellant denied that he approached
Mr. McAffee seeking drugs, and claimed rather that
Mr. McAffee approached Appellant while he was
walking around “getting acquainted” with Steve.
Appellant testified that Mr. McAffee was “rude,”
“obnoxious,” “interrupting,” and “persisting to be a
third wheel in our little get-together.” Appellant
testified that he and his companion walked away
from Mr. McAffee and “hailed a cab” to go to another
bar, but that Mr. McAffee followed them and sought
to join them in the cab. When Appellant attempted
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to close the cab door before Mr. McAffee could enter,
Mr. McAffee “kept trying to slam it to jerk it to get
[Appellant] to unloosen the door.” Appellant “kept
telling [Mr. McAffee] just leave us alone,” and
“[e]ven the guy Steve was trying to tell the cab
driver to pull off[.]” Although the cab driver “finally”
pulled away, Appellant’s companion said “his night
[was] ruined” and they decided to part ways.
Appellant testified that he exited the cab and
walked to 13th and Spruce Streets, where he lived in
the residence of another gentleman. Upon arriving
at the apartment building’s door, Appellant saw
Mr. McAffee and another male about 45 feet away.
Appellant attempted to enter the security code
numbers in the door’s keypad while Mr. McAffee
continued walking closer. Appellant testified that he
now was “on guard” because he knew Mr. McAffee’s
“history in that area” and “what he’s capable of.”
Because Mr. McAffee was “walking towards
[Appellant] real fast,” Appellant backed away from
the door and prepared to “defend himself.”
According to Appellant, he and Mr. McAffee then
exchanged punches and Mr. McAffee fell during the
encounter.
Trial court opinion, 7/15/16 at 1-4 (record citations omitted).
The record reflects that following sentencing, appellant did not file
post-sentence motions. Appellant, however, filed a timely notice of appeal
to this court. Appellant also timely complied with the trial court’s order to
file a statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Subsequently, the trial court filed its Rule 1925(a)
opinion.
Appellant raises the following issues for our review:
1. Whether the evidence was insufficient as a
matter of law to disprove self-defense beyond
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a reasonable doubt where there was
uncontroverted evidence that, after an initial
altercation between [appellant] and the
complaining witness, the complaining witness
traveled to the residence wherein [appellant]
was staying and thereupon confronted
[appellant] as he was attempting to enter the
location[?]
2. Whether a new trial must be ordered because
the prosecutor violated Doyle v. Ohio, 426
U.S. 610 (1976) and its progeny by urging the
[c]ourt to disbelieve [appellant’s] testimony
because [appellant] never informed police that
he was acting in self-defense[?]
Appellant’s brief at 5.
Our review of a sufficiency of the evidence challenge is well settled:
The standard we apply . . . 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 trier 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. Truong, 36 A.3d 592, 597 (Pa.Super. 2012) (en banc)
(quotation omitted), appeal denied, 57 A.3d 70 (Pa. 2012).
Where, as here, a defendant claims that self-defense justified his
actions, he bears no burden to prove that claim. See Commonwealth v.
Smith, 97 A.3d 782, 787 (Pa.Super. 2014). Rather, once any evidence
comes before the fact-finder to support a self-defense claim, the
Commonwealth bears the burden of disproving the claim beyond a
reasonable doubt. See id.
The defense, found in Section 505 of the Crimes Code, provides, in
relevant part:
(a) Use of force justifiable for protection of
the person.--The use of force upon or toward
another person is justifiable when the actor
believes that such force is immediately
necessary for the purpose of protecting himself
against the use of unlawful force by such other
person on the present occasion.
(b) Limitations on justifying necessity for use
of force.--
....
(2) The use of deadly force is not
justifiable under this section unless
the actor believes that such force is
necessary to protect himself
against death, serious bodily
injury, kidnapping or sexual
intercourse compelled by force or
threat; nor is it justifiable if:
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(i) the actor, with the intent
of causing death or
serious bodily injury,
provoked the use of
force against himself in
the same encounter; or
(ii) the actor knows that he
can avoid the necessity
of using such force with
complete safety by
retreating, except the
actor is not obliged to
retreat from his dwelling
or place of work, unless
he was the initial
aggressor or is assailed
in his place of work by
another person whose
place of work the actor
knows it to be.
18 Pa.C.S.A. § 505(a), (b)(2). Accordingly, the Commonwealth may
disprove a claim of self-defense if it establishes: “1) the accused did not
reasonably believe that he was in danger of death or serious bodily injury; or
2) the accused provoked or continued the use of force; or 3) the accused
had a duty to retreat and the retreat was possible with complete safety.”
Smith, 97 A.3d at 787 (quotation omitted). Further, “the Commonwealth
can negate a self-defense claim by proving the defendant ‘used more force
than reasonably necessary to protect against death or serious bodily injury.’”
Id. at 788, quoting Truong, 36 A.3d at 599.
Here, appellant contends that “the testimony established that
[appellant] was attacked by Mr. McAffee just outside of his residence in the
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early morning hours of March 17, 2015” and that appellant was “forced to
defend himself.” (Appellant’s brief at 14.) In its opinion, the trial court
acknowledged that “there was conflicting testimony from the complainant
and [a]ppellant,” but as fact-finder, it found that:
Mr. McAffee’s testimony was materially more credible
than Appellant’s testimony. Mr. McAffee’s hospital
discharge report supports that Appellant unleashed a
severe beating on him. Mr. McAffee suffered several
fractured bones in his face, was hospitalized, and
required reconstructive surgery. The severity of
Mr. McAffee’s injuries corroborated his testimony
that Appellant had repeatedly punched and kicked
him. In contrast to the severe injuries Mr. McAffee
sustained, Appellant at most suffered mild swelling
around his eye. Even if the altercation was not
solely instigated by Appellant, Mr. McAffee’s
testimony and medical evidence support that
Appellant “continued” to use force that was far
beyond what was necessary to defend himself from
severe bodily injury. By the same token, after
knocking Mr. McAffee to the ground, Appellant could
not possibly have believed that he remained in
danger of death or serious bodily injury from
Mr. McAffee, yet he continued to punch and stomp
the unarmed man rather than retreat to his
residence.
Trial court opinion, 7/15/16 at 7-8 (record citations and footnote setting
forth supporting testimony omitted).
Our review of the trial transcript provides ample support for the trial
court’s conclusion that appellant did not reasonably believe that he was in
danger of death or serious bodily injury, and that, despite his duty to
retreat, appellant continued to use force when he had the ability to safely
walk away. Therefore, the Commonwealth satisfied its burden of disproving
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appellant’s claim of self-defense beyond a reasonable doubt. Consequently,
appellant’s sufficiency challenge fails.
Appellant finally complains that he is entitled to a new trial because
“[d]uring closing argument, the Commonwealth improperly urged the [trial
court] to disbelieve [appellant’s] testimony by pointing to his post-arrest
silence[,]” as follows:
THE COMMONWEALTH: [Appellant’s] building is
brand new. If he has that brand new building that
surely it has security buttons, has a security camera,
if all this happened the way [appellant] said it did,
he tells police on April 2nd when he turns himself in
this guy is lying on me, please go to the security
camera, it will prove I was provoked, I was attacked.
I couldn’t get in my door. He didn’t say a word until
today. He didn’t bring in any security camera that
would corroborate his story. He didn’t do anything
like that.
Appellant’s brief at 18; notes of testimony, 11/24/15 at 86-87.
In his argument on this issue, appellant relies on Doyle v. Ohio, 426
U.S. 610 (1976), and its progeny to argue that the above comment made by
the Commonwealth in its closing entitles appellant to a new trial. In Doyle,
the United States Supreme Court held that prosecutorial comment on a
defendant’s post-Miranda2 silence may violate due process, and the
prosecutor may not impeach a testifying defendant with his post-Miranda
silence. Id. at 619. In Fletcher v. Weir, 455 U.S. 603 (1982), the
High Court subsequently held that cross-examination of a testifying
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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defendant regarding post-arrest silence does not violate due process if the
silence occurred prior to the issuance of Miranda warnings. Id. at 607.
The Pennsylvania Supreme Court rejected Fletcher in Commonwealth v.
Turner, 454 A.2d 537 (Pa. 1982), holding that under Art. I, § 8 of the
Pennsylvania Constitution, Doyle’s protection extended to the entire
post-arrest period, regardless of whether Miranda warnings were given
prior to the defendant’s statements. Id. at 540. “Both [the Pennsylvania
Supreme] Court and the High Court, however, have determined that there is
no violation of due process when pre-arrest, pre-Miranda silence is used at
trial to impeach a testifying defendant.” Commonwealth v. Spotz, 870
A.2d 822, 831 (Pa. 2005) (citation omitted).
Here, although appellant admits that “the prosecutor did not question
[appellant] about his post-arrest silence,” he contends that “the prosecutor
urged the [trial c]ourt to discredit [appellant] because he exercised his right
to remain silent[]” and that “this is equally offensive to the Fifth and
Fourteenth Amendments (as well as Article I, Section 9).” (Appellant’s brief
at 20.) In support, appellant then cites to two cases where reversible error
was found when a prosecutor, during closing in a jury trial, commented on a
defendant’s silence at the time of his arrest.3
3
Commonwealth v. Easely, 396 A.2d 1198 (Pa. 1979), and
Commonwealth v. Stafford, 299 A.2d 590 (Pa. 1973), respectively.
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Here, appellant was tried in a bench trial. It is axiomatic that when a
trial court sits as fact-finder, it is presumed to know the law, ignore
prejudicial statements, and disregard inadmissible evidence.
Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016)
(citation omitted); see also Commonwealth v. Flynn, 460 A.2d 816,
823 n.13 (Pa.Super. 1983) (stating that this court “presume[s] that the
[trial] court, which sat as factfinder in this case, followed its own
instructions[]”). In the trial court’s words:
This Court based its verdict on the evidence
and testimony presented during trial, not on the
prosecutor’s closing arguments. This Court was
aware that a defendant’s post-arrest silence cannot
be used to impeach his credibility, took note of
defense counsel’s objections, and was not prejudiced
against Appellant by the prosecutor’s comments that
Appellant never informed the police of his version of
the incident. Accordingly, even if the prosecutor’s
comments were improper, Appellant suffered no
prejudice and his appeal on this ground should be
denied.
Trial court opinion, 7/15/16 at 11 (footnote omitted). We agree, and
nothing in the certified record before us demonstrates otherwise.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
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