J-S63038-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
LEWIS BROOKS, :
:
Appellant : No. 2949 EDA 2018
Appeal from the Judgement of Sentence Entered June 17, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014184-2012
BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 08, 2020
Lewis Brooks (Appellant) appeals nunc pro tunc from the judgment of
sentence of 6 to 12 years of incarceration, imposed after he was found guilty
in a bench trial of aggravated assault, simple assault, possessing an
instrument of crime (PIC), and recklessly endangering another person
(REAP). We affirm.
We provide the following background. This case involves the
relationship between Appellant and Keith Johnson. Appellant is married to
Tracey Mitchell, whom Johnson claimed he used to date.1 This is the cause
____________________________________________
1 Mitchell denied ever having dated Johnson. N.T., 3/10/2014, at 75.
* Retired Senior Judge assigned to the Superior Court.
J-S63038-19
of friction between the two men.2 According to Johnson, on September 5,
2012, he was driving in his white Ford F250 pickup truck when he saw
Appellant driving a red Chevrolet Blazer.3 Johnson claimed that Appellant
signaled for Johnson to follow Appellant. Johnson complied and followed
Appellant for about 10 or 15 minutes, believing that the two were going to
engage in a fist fight. However, while following Appellant, Johnson’s “blood
cooled,” and he decided he did not want to fight. N.T., 3/10/2014, at 49.
According to Johnson, he then made a turn and went to the home of Mrs.
Brown, a client for whom Johnson was going to build a retaining wall.
Johnson spoke to Mrs. Brown, then got back into his truck. Johnson realized
he forgot to have Mrs. Brown sign the contract for the retaining wall; so he
exited his truck. That is when he noticed Appellant in his truck headed
straight for him, and Appellant then hit Johnson with his car. Johnson
suffered numerous injuries, including a broken leg and a head injury.
Appellant was arrested the same day and was charged with attempted
murder, aggravated assault, simple assault, REAP, and PIC. A non-jury trial
was held on March 10, 2014, where Johnson testified as indicated supra.
____________________________________________
2 For example, in July 2012, Johnson saw Appellant standing outside a body
shop. According to Johnson, Appellant chased Johnson with a crow bar. It
was Johnson’s position that Appellant chased Johnson with a gun. On
another occasion, Appellant allegedly tried to hit Johnson with a car, and
Johnson allegedly threw a brick at Appellant. The two also had verbal
altercations.
3 It was later determined this vehicle was a maroon GMC Jimmy. N.T.,
3/10/2014, at 70.
-2-
J-S63038-19
Appellant also testified at trial. Appellant testified that Johnson was the
aggressor in the prior altercations. N.T., 3/10/2014, at 94-97. With respect
to the September 5, 2012 incident, Appellant testified that “out of nowhere”
Johnson was “banging on the door” of Appellant’s car while it was stopped,
and Johnson threatened to kill Appellant. Id. at 98. Appellant believed that
Johnson had a gun. Id. Appellant began to drive away, and Johnson was
following Appellant in his car close enough to be tapping the bumper.
According to Appellant, when the two were stopped, Johnson got out of his
car and reached into the passenger side of Appellant’s car. Appellant
testified that Johnson lifted his shirt, making Appellant believe Johnson had
a gun. Appellant then ducked away when he heard a thud. According to
Appellant, he “wasn’t trying to hit [Johnson] that day. [He] was trying to
get away from him.” Id. at 102. He “ducked because [he] thought
[Johnson] had a gun and he was going to shoot at [Appellant] or
something.” Id. Appellant testified that he “heard a thud” and kept driving
“because [he] didn’t know if [he] hit [Johnson] or anything and if [he] did,
[he] was afraid to stop because [he] didn’t know whether [Johnson] was
going to come after him.” Id.
The trial court found Appellant not guilty of attempted murder and
guilty on the remaining charges. A sentencing hearing occurred on June 17,
2014. At that hearing, Appellant apologized for any wrongdoing, asked for
mercy, and had a number of family members present letters and testify on
-3-
J-S63038-19
his behalf. The trial court pointed out that at no time did Appellant accept
responsibility for Johnson’s injuries, and stated that “the public has to be
protected.” N.T., 6/17/2014, at 30. The trial court sentenced Appellant to a
below-the-mitigated-range sentence of 6 to 12 years of incarceration for
aggravated assault and a concurrent two-and-a-half years to five years of
incarceration for PIC. He was sentenced to no further penalty on the
remaining charges.
Appellant timely filed a post-sentence motion, which was denied.
Appellant timely filed an appeal to this Court, and Appellant’s judgment of
sentence was affirmed on the basis that Appellant’s Pa.R.A.P. 1925(b)
statement was filed untimely. Commonwealth v. Brooks, 159 A.3d 597
(Pa. Super. 2016) (unpublished memorandum), appeal denied, 168 A.3d
1288 (Pa. 2017).
Appellant timely filed a petition pursuant to the Post-Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546, requesting the reinstatement of his
right to a direct appeal. The PCRA court granted Appellant’s petition, and
this timely-filed direct appeal followed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant has set forth three issues for our review.4 We
begin with Appellant’s sufficiency-of-the-evidence challenge. See Appellant’s
____________________________________________
4Appellant included a fourth issue in his Pa.R.A.P. 1925(b) statement, but
has decided not to pursue that issue on appeal. See Appellant’s Brief at 8
(Footnote Continued Next Page)
-4-
J-S63038-19
Brief at 19-21. According to Appellant, he presented sufficient evidence to
establish a claim of self-defense, and the Commonwealth did not satisfy its
burden in disproving his claim.
We review this issue mindful of the following.
When reviewing a challenge to the sufficiency of the
evidence, we must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as verdict
winner, support the conviction beyond a reasonable doubt.
Where there is sufficient evidence to enable the trier of fact to
find every element of the crime has been established beyond a
reasonable doubt, the sufficiency of the evidence claim must fail.
This standard applies equally where the Commonwealth’s
evidence is circumstantial.
In conducting this analysis, we do not weigh the evidence
and substitute our judgment for that of the fact-finder.
Additionally, the Commonwealth’s evidence need not preclude
every possibility of innocence in order to prove guilt beyond a
reasonable doubt. The fact-finder is free to believe all, part, or
none of the evidence.
Commonwealth v. Knox, __ A.3d __, 2019 WL 4316128 at *4 (Pa. Super.
2019) (internal citations and quotation marks omitted).
Here, because Appellant’s sufficiency-of-the-evidence challenge
implicates a claim of self-defense, we observe the following.
The use of force against a person is justified when the
actor believes that such force is immediately necessary for the
purpose of protecting himself against the use of unlawful force
by the other person. See 18 Pa.C.S. § 505(a). When a
defendant raises the issue of self-defense, the Commonwealth
(Footnote Continued) _______________________
n.1 (“After conducting further research on [the issue related to calculation of
Appellant’s prior record score], Appellant withdraws the … argument.”); see
also id. at 18.
-5-
J-S63038-19
bears the burden to disprove such a defense beyond a
reasonable doubt. While there is no burden on a defendant to
prove the claim, before the 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 that will support
the claim, then the issue is properly before the fact finder.[5]
Commonwealth v. Reynolds, 835 A.2d 720, 731 (Pa. Super. 2003)
(internal citations and quotation marks omitted).
A self-defense claim thus entails three elements:
(1) [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;
(2) [Defendant] was free from fault in provoking the difficulty
which culminated in the slaying; and
(3) [Defendant] did not violate any duty to retreat.
Knox, __ A.3d __, 2019 WL 4316128 at *5 (internal citations omitted).
____________________________________________
5 Instantly, the trial court concluded that Appellant properly raised a claim of
self-defense. See Trial Court Opinion, 3/29/2019, at 8-9 (“Through his own
testimony, [Appellant] presented sufficient evidence to bring the issue of
self-defense before the court.”). However, our Supreme Court has held that
the defense of self-defense is available only when a defendant admits that
he used deadly force upon the victim intentionally. See Commonwealth v.
Philistin, 53 A.3d 1, 12 (Pa. 2012); Commonwealth v. Harris, 665 A.2d
1172, 1175 (Pa. 1995) (“[T]he defense of self-defense necessarily requires
that the appellant admit that the shooting was intentional in order to protect
one’s self.”). At trial, Appellant testified that he “didn’t know if [he] hit”
Johnson. N.T., 3/10/2014, at 102. On appeal, Appellant argues that he
“incidentally struck” Johnson. Appellant’s Brief at 20. Thus, it is arguable
that the trial court should not have even considered a self-defense defense.
However, because the trial court concluded that Appellant satisfied his
burden to put forth a self-defense defense, and the Commonwealth does not
dispute the claim, we will consider the issue.
-6-
J-S63038-19
Here, the trial court concluded that the Commonwealth proved beyond
a reasonable doubt that Appellant “did not reasonably believe he was in
danger of death or serious injury, and that even if [Appellant were] afraid of
Johnson, running Johnson over with a car was not a reasonable response.”
Trial Court Opinion, 3/29/2019, at 12. According to the trial court, “[e]ven if
[Appellant’s] incredible version of events [were] true, [Appellant] safely
could have retreated by simply driving away in his car once Johnson parked
and exited his own vehicle.” Id. at 12-13.
On appeal, Appellant assails the trial court’s accepting of “[Johnson’s]
version of events” as true. Appellant’s Brief at 21. Furthermore, Appellant
points out that the trial court failed to acknowledge that Johnson had a
history of abusing Appellant. Id.
When the defendant’s own testimony is the only evidence
of self-defense, the Commonwealth must still disprove the
asserted justification and cannot simply rely on the [fact-
finder’s] disbelief of the defendant’s testimony…. 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, 788 (Pa. Super. 2014) (internal
citations and quotation marks omitted).
In this case, there were two witnesses who testified to this altercation,
Appellant and Johnson. The trial court believed the testimony of Johnson,
-7-
J-S63038-19
see Trial Court Opinion, 3/29/2019, at 13, and we cannot and will not
disturb that conclusion. Moreover, this incident occurred on a two-lane road
and the damage to Appellant’s car was on the passenger side of the vehicle.
Under such circumstances, the trial court did not err in concluding that
Appellant violated his duty to retreat because there was adequate space for
Appellant to have left the scene safely without hitting Johnson. Accordingly,
we discern no error of law in the trial court’s conclusions, and agree with the
trial court that the Commonwealth disproved Appellant’s claim of self-
defense beyond a reasonable doubt. Thus, Appellant is not entitled to relief.
Appellant next argues that the verdict was against the weight of the
evidence. See Appellant’s Brief at 22-23.
Pennsylvania Rule of Criminal Procedure 607 provides, in
pertinent part, that a claim that the verdict was against the
weight of the evidence shall be raised with the trial judge in a
motion for a new trial: (1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before
sentencing; or (3) in a post-sentence motion.
Commonwealth v. Barnhart, 933 A.2d 1061, 1066 (Pa. Super. 2007)
(internal citation and quotation marks omitted). “The purpose of this rule is
to make it clear that a challenge to the weight of the evidence must be
raised with the trial judge or it will be waived.” Id. Here, Appellant did not
raise this issue prior to sentencing or in his post-sentence motion. Thus, the
issue is waived.
-8-
J-S63038-19
Finally, Appellant challenges the discretionary aspects of his sentence.
See Appellant’s Brief at 15-18. We consider this issue mindful of the
following.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing [a] sentence, a court is required to
consider the particular circumstances of the offense and the
character of the defendant. In considering these factors, the
court should refer to the defendant’s prior criminal record, age,
personal characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
-9-
J-S63038-19
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal, preserved the issue in a post-sentence motion, and
included a Pa.R.A.P. 2119(f) statement in his brief. See Appellant’s Brief at
12-13. Therefore, we now consider whether Appellant has raised a
substantial question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).
In his Pa.R.A.P. 2119(f) statement, Appellant contends that the trial
court “imposed a sentence that was so manifestly excessive as to constitute
too severe a punishment.” Appellant’s Brief at 12. Appellant argues that
while the trial court “did take into account some mitigating factors, [the trial
court] failed to account [for] the rehabilitative needs of Appellant” as well as
other mitigating factors. Id.
- 10 -
J-S63038-19
“[A]n allegation that the sentencing court failed to consider mitigating
factors generally does not raise a substantial question for our review.”
Commonwealth v. Rhoades, 8 A.3d 912, 918-19 (Pa. Super. 2010).
Additionally, a claim that the sentencing court failed to consider a
defendant’s rehabilitative needs does not raise a substantial question.
Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013). However,
this Court has held that where there is a claim that a “sentence is
disproportionate to the offense and the trial court failed to consider
mitigating factors, Appellant has raised a substantial question.”
Commonwealth v. DiClaudio, 210 A.3d 1070, 1075 (Pa. Super. 2019).
Instantly, despite the fact Appellant received a below-the-mitigated
range sentence,6 he still claims the sentence is excessive and the trial court
failed to consider mitigating factors. Thus, arguably, Appellant has raised a
substantial question, and we may consider the merits of his claims. See id.
Appellant contends the trial court did not consider Appellant’s
background in assessing Appellant’s rehabilitative needs. Appellant’s Brief at
17. According to Appellant, the record established that he was attempting
____________________________________________
6 In fact, at sentencing, the Commonwealth requested a sentence of 9 to 20
years of incarceration. N.T., 6/17/2014, at 30. When the trial court indicated
that it was inclined to sentence Appellant to 6 to 12 years of incarceration,
the Commonwealth argued that such a minimum sentence was below the
mitigated range, which began with a 6-and-half-year sentence. Id.
Nevertheless, the trial court sentenced Appellant to this below-the-
mitigated-range sentence. Id.
- 11 -
J-S63038-19
to provide for his family, he was in the process of obtaining certification as a
pharmacy technician, and he was responsible for the care of his mother
because his sister had been murdered five years prior. Id. Thus, Appellant
claims that such a long prison sentence was unreasonable under these
circumstances and the trial court abused its discretion at sentencing.
The sentencing court is given broad discretion in
determining whether a sentence is manifestly excessive because
the sentencing judge is in the best position to measure factors
such as the nature of the crime, the defendant's character and
the defendant's display of remorse, defiance, or indifference. In
order to find that a trial court imposed an unreasonable
sentence, we must determine that the sentencing court imposed
the sentence irrationally and that the court was not guided by
sound judgment.
The sentencing code offers general guidelines with respect
to the imposition of a particular sentence. Reasonableness of the
sentence imposed by the trial court is based on:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe
the defendant, including any presentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.[ ] § 9781(d). The sentencing code guidelines also
require the sentence to be consistent with the protection of the
public, the gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the
rehabilitative needs of the defendant.
- 12 -
J-S63038-19
DiClaudio, 210 A.3d at 1076 (citing Commonwealth v. Riggs, 63 A.3d
780, 786 (Pa. Super. 2012) (internal quotation marks and some citations
omitted)).
Instantly, at sentencing, the trial court took into account the impact on
Johnson, who “was injured badly and in the hospital with a broken leg and
other injuries.” N.T., 6/17/2014, at 26. In addition, the trial court pointed
out that Appellant did not take responsibility for injuring Johnson; rather, he
claimed that Johnson was “mentally ill” and “made it up.” Id. The trial court
acknowledged that Appellant had not been convicted of a crime in 30 years.
Id. at 28. The trial court pointed out that it listened to the witnesses at
trial, and that the “public has to be protected.” Id. at 30. The trial court
concluded that Appellant was entitled to mitigation, and sentenced Appellant
below the mitigated range. “Moreover, where, as here, the sentencing court
had the benefit of a pre-sentence investigation report, we can assume the
sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Rhoades, 8 A.3d at 919 (citations and
quotation marks omitted).
Thus, the trial court had the benefit of all relevant information, had
observed Appellant during trial and at sentencing, and concluded he was
entitled to mitigation. Based on the foregoing, “we conclude that Appellant
has failed to demonstrate that the sentencing court ignored or misapplied
- 13 -
J-S63038-19
the law, exercised its judgment for reasons of partiality, prejudice, bias or ill
will, or arrived at a manifestly unreasonable decision” in imposing
Appellant’s below-the-mitigated-range sentence. DiClaudio, 210 A.3d at
1077 (internal quotation marks omitted).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/20
- 14 -
Com. v. Brooks, L.
Combined Opinion