J-S61026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL BOSTON :
:
Appellant : No. 2535 EDA 2018
Appeal from the Judgment of Sentence Entered April 2, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005559-2016
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JANUARY 07, 2020
Appellant, Michael Boston, appeals from the judgment of sentence
entered on April 2, 2018, as made final by the denial of his post-sentence
motion on August 1, 2018, following his jury trial convictions for third-degree
murder, possessing an instrument of crime, persons not to possess a firearm,
carrying a firearm without a license, and carrying a firearm on public streets
in Philadelphia.1 We affirm.
The trial court briefly summarized the facts of this case as follows:
On February 8, 2016, at 5[:00] p.m.[, Appellant] was walking
along Market Street [in Philadelphia, Pennsylvania] with a man
named George Fitz. Fitz was looking to buy crack cocaine from
[Appellant], who did not want to make a sale on Market Street
due to the volume of passersby. The two men made a left and
walked down 62nd Street, where they were approached by
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(c), 907, 6105, 6106, and 6108, respectively.
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decedent[,] Joe Jones. Jones was looking for [Appellant] because
Jones believed [Appellant] had cheated him during a prior drug
transaction. Jones pulled out a screwdriver and waved it around,
threatening [Appellant]. Jones’ nephew, Niam Johnson, saw the
altercation and walked over to where the men were standing.
Pushing and shoving ensued, despite an attempt by Fitz to calm
the situation down. [Appellant] pulled out a .38 caliber semi-
automatic handgun and when Johnson saw the gun, he began to
run away. [Appellant] fired a shot at Johnson, but missed his
target.
By this point, Fitz was across the street and Johnson was sprinting
away. [Appellant] looked across the street and saw that Jones
was also running away, no longer waving a screwdriver or
attempting to escalate the altercation with [Appellant].
[Appellant], nevertheless, fired three shots at Jones. Two of the
shots entered the left side of Jones’ chest. [Appellant] then fled
the scene. Jones was pronounced dead at Penn Presbyterian
Hospital at 5:36 p.m. Dr. Albert Chu, an Associate Medical
Examiner, performed the autopsy and concluded, to a reasonable
degree of medical certainty, that the cause of death was gunshot
wounds, and the manner of death was homicide.
A corner store located at 62nd and Arch [Streets] had surveillance
cameras which captured the shooting. The homicide investigators
used this footage to identify Fitz, who was brought in for
questioning. Fitz identified [Appellant] as the shooter and
described the incident in detail.
[Police arrested Appellant and the Commonwealth charged him
with the aforementioned charges, as well as first-degree murder.
The trial court held a four-day jury trial in June of 2016.] At trial,
a certificate of non-licensure was introduced proving that
[Appellant] was not licensed to carry a firearm. Further, although
not admitted into evidence, [Appellant] has a prior [disqualifying]
offense[,] which made it illegal for him to carry a firearm.
Trial Court Opinion, 11/5/2018, at 1-2 (record citations omitted).
The case proceeded thereafter as follows:
On June 15, 2017, a jury found [Appellant] guilty of third[-]degree
murder, possessing an instrument of crime, and [the three
firearm] violations[.] [Appellant] was sentenced on April 2, 2018
to an aggregate term of twenty[-five] (25) to fifty (50) years[’]
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incarceration. [Appellant] filed a post-sentence motion on April
10, 2018. The motion was denied on August 1, 2018. On August
26, 2018, [Appellant] filed a notice of appeal and on September
4, 2018, [the trial] court ordered [Appellant] to file a statement
of [errors] complained of on appeal [pursuant to Pa.R.A.P.
1925(b)]. [Appellant] filed his [Rule 1925(b)] statement [] on
October 14, 2018. [The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on November 5, 2018.]
Id. at 1.
On appeal, Appellant presents the following issue for our review:
Whether the verdict was against the sufficiency of the evidence
when [A]ppellant was physically attacked by two men that were
beating and robbing him, one of which was wielding and
threatening [A]ppellant with a long screwdriver[?]
Appellant’s Brief at 4.
In sum, Appellant argues:
This is a case of self-defense. [A]ppellant was about to sell drugs
to an eyewitness to the incident. […] The decedent came around
the corner and confronted [A]ppellant about money the decedent
[was] supposedly owed for drug [sales A]ppellant made. Initially,
[A]ppellant and decedent [were] just talking. [A]ppellant did not
show or threaten the decedent with a gun.
The [decedent heated the argument]. The decedent took out a
long screwdriver. He threatened and swung at [A]ppellant.
[A]ppellant still did not take out a gun or threaten the decedent.
The decedent’s relative, a young man called Niam, came across
the street to help the decedent. Niam placed his hand in his shirt
and threatened to [“]bust[”] or [“]pop[” A]ppellant. To the
eyewitness that [meant “shoot” A]ppellant. [A]ppellant still did
not take out a gun or threaten anyone.
Both the decedent and Niam grabbed [A]ppellant and threw him
back and forth against a van and a gate. They beat [A]ppellant
and put [] hands in his pockets and took money from him. They
robbed [A]ppellant. That is when [A]ppellant took out a gun and
defended himself. [A]ppellant chased the decedent a short
distance and then shot him. Niam ran away.
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Id. at 8. As such, Appellant contends that “[i]t was reasonable for [him] to
believe that his life was in immediate danger when he was being beaten and
robbed by two men” and he was, therefore, “justified in [using] deadly force
to protect his life.” Id. at 10.
Initially we note that Appellant fails to support his argument with record
citations in violation of our Rules of Appellate Procedure. See Pa.R.A.P.
2119(c) (requiring that if reference is made to evidence of record, it must be
accompanied by a citation to the record); see also Pa.R.A.P. 2119(d) (“[T]he
argument must contain a synopsis of all the evidence on the point, with a
reference to the place in the record where the evidence may be found.”).
Here, Appellant claims that he was robbed and beaten before the shooting.
However, the trial court makes no mention of such evidence and Appellant
has not cited to the certified record for us to review. “We shall not develop
an argument for an appellant, nor shall we scour the record to find evidence
to support an argument; instead, we will deem [the] issue to be waived.”
Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018)
(citation omitted). Arguably, then, Appellant’s sole claim on appeal is waived.
Even if we did not find Appellant’s issue waived, it is without merit. The
Pennsylvania Crimes Code governs self-defense and provides, in pertinent
part:
§ 505. Use of force in self-protection
(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
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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:
(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[.]
18 Pa.C.S.A. § 505(a)-(b).
We previously summarized the law pertaining to the justified use of
deadly force as follows:
According to our Supreme Court, the justified use of deadly force
requires:
a) the actor was free from fault in provoking or continuing
the difficulty which resulted in the use of deadly force; b)
the actor must have reasonably believed that he was in
imminent danger of death or serious bodily injury, and that
there was a necessity to use such force in order to save
himself or others therefrom; and c) the actor did not violate
any duty to retreat or to avoid the danger.
The defendant has no burden to prove his self-defense claim. The
Supreme Court explained the evidentiary burdens as follows:
While there is no burden on a defendant to prove the
self-defense claim, before that defense is properly at issue
at trial, there must be some evidence, from whatever source
to justify a finding of self-defense. If there is any evidence
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that will support the claim, then the issue is properly before
the fact finder.
If the defendant properly raises self-defense under Section 505 of
the Pennsylvania Crimes Code, the burden is on the
Commonwealth to prove beyond a reasonable doubt that the
defendant's act was not justifiable self-defense.
The Commonwealth sustains this burden if it establishes at least
one of the following: 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.
The Commonwealth must establish only one of these three
elements beyond a reasonable doubt to insulate its case from a
self-defense challenge to the evidence. The Commonwealth can
negate a self-defense claim if it proves the defendant did not
reasonably believe he was in imminent danger of death or great
bodily injury and it was necessary to use deadly force to save
himself from that danger.
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
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.
[…T]he use of deadly force itself cannot be viewed in isolation with
the victim as the sole physical aggressor and the defendant acting
in responsive self-defense. This would be an incomplete and
inaccurate view of the circumstances for self-defense purposes.
To claim self-defense, the defendant must be free from fault in
provoking or escalating the altercation that led to the offense,
before the defendant can be excused from using deadly force.
Likewise, 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.
When the defendant's own testimony is the only evidence of
self-defense, the Commonwealth must still disprove the asserted
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justification and cannot simply rely on the jury's disbelief of the
defendant's testimony:
The disbelief of a denial does not, taken alone, afford
affirmative proof that the denied fact existed so as to satisfy
a proponent's burden of proving that fact. The trial court's
statement that it did not believe Appellant's testimony is no
substitute for the proof the Commonwealth was required to
provide to disprove the self-defense claim.
If there are other witnesses, however, who provide accounts of
the material facts, it is up to the fact finder to reject or accept all,
part or none of the testimony of any witness. The complainant can
serve as a witness to the incident to refute a self-defense claim.
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. Smith, 97 A.3d 782, 787–788 (Pa. Super. 2014) (internal
citations, quotations, and original brackets omitted).
Here, the trial court noted:
Witness George Fitz testified that he saw the entire altercation and
that he saw [Appellant] shoot decedent. In addition, the
surveillance camera footage clearly shows the homicide. Fitz, who
knew [Appellant] prior to the incident, also identified him as being
the person who committed the shooting in the video.
Trial Court Opinion, 11/5/2018, at 4.
The trial court then concluded:
While the evidence does show that decedent was wielding a
screwdriver against [Appellant] early in the confrontation with
[Appellant], that was well before [Appellant] introduced a firearm
into the affray. Indeed, at the time of decedent’s murder, he was
fleeing the scene and posed no threat to [Appellant]. Thus, it was
not immediately necessary for [Appellant] to shoot decedent two
times. Therefore, [Appellant] could not have reasonably believed
that there was an imminent threat of death of serious bodily
injury.
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Id. at 6.
Upon review, we conclude the trial court did not err in rejecting
Appellant’s self-defense claim. The Commonwealth presented evidence that
Appellant used more force than was reasonably necessary and, in fact,
escalated the altercation. Eyewitness testimony and video surveillance
footage confirmed that the victim was already leaving the scene when
Appellant began firing his weapon. As the trial court recounts, the victim, who
neither possessed nor displayed a firearm during the incident in question, was
across the street from Appellant when the shooting began. Appellant even
concedes that he “chased [Appellant] a short distance and shot him.”
Appellant’s Brief at 8 (emphasis supplied). Accordingly, the Commonwealth
sustained its burden of proving Appellant’s act was not justifiable self-defense
because Appellant deployed deadly force against the victim when he could not
have reasonably believed he was in imminent danger. For all of the foregoing
reasons, we find Appellant waived his sole appellate claim, but it is otherwise
without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/20
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