Com. v. Clary, D.

J-A17013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL KHALIL CLARY :
:
Appellant : No. 463 EDA 2019

Appeal from the Judgment of Sentence Entered August 31, 2018
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003961-2017

BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 15, 2020

Daniel Khalil Clary appeals from the judgment of sentence of fifty-three

and one half to one hundred and seven years of imprisonment imposed after

he was convicted of two counts of aggravated assault of a law enforcement

officer and related offenses. After careful review, we affirm.

On November 7, 2017, Appellant was driving his vehicle on State Route

33 in Northampton County, Pennsylvania when Pennsylvania State Trooper

(“PSP”) Ryan Seiple observed Appellant exceeding the posted speed limit and

initiated a traffic stop. See N.T. Jury Trial, 6/25/18, at 14-22. The full

interaction between Appellant and Trooper Seiple was captured on the mobile

video recorder (“MVR”) on Trooper Seiple’s vehicle. See N.T. Jury Trial,

6/24/18, at 71-72; N.T. Jury Trial, 6/25/18, at 27-28, 89, 90-101; see also

Commonwealth Exhibit C-7. After issuing a citation to Appellant for speeding

and answering Appellant’s questions regarding the citation, Trooper Seiple
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returned to his vehicle, initiated his turn signal, and began to maneuver back

onto Route 33. N.T. Jury Trial, 6/25/18, at 37-38. However, upon observing

Appellant waving for him to return, Trooper Seiple returned his vehicle to its

original position and re-approached Appellant’s vehicle. Id. at 38.

Appellant asked Trooper Seiple additional questions about the traffic

citation. Trooper Seiple repeated the reasons for the traffic citation and again

directed Appellant to read and follow the directions on the ticket. After

observing an air freshener in the vehicle called “blunt effects” and that

Appellant had a green tongue, Trooper Seiple became concerned that

Appellant’s confusion regarding the simple directions on the citation could be

due to marijuana intoxication. Id. at 39-45. Trooper Seiple returned to his

vehicle and requested back-up to assist him with conducting field sobriety

testing. Id. at 46.

Once Trooper Seiple’s supervisor, Corporal Seth Kelly, arrived at the

scene, Trooper Seiple asked Appellant to exit the vehicle. Appellant complied

with the directive and a frisk did not uncover any weapons. Id. at 47-48.

Trooper Seiple administered field sobriety tests, all of which Appellant failed.

Id. at 49-52. Accordingly, Trooper Seiple concluded that Appellant was under

the influence of marijuana and incapable of safe driving, and instructed him

to place his hands behind his back. Id. at 52. Before Trooper Seiple could

retrieve his handcuffs from his waist, Appellant turned his body and began

actively resisting arrest. Id. at 53. A struggle ensued, wherein Appellant

reached for Corporal Kelly’s gun and managed to disarm Trooper Seiple by

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ejecting the magazine from his service weapon, so that Trooper Seiple only

had access to the bullet in the chamber of his weapon.

Corporal Kelly and Trooper Seiple deployed their tasers, hitting him

multiple times. Id. at 54-58. Thereafter, they attempted to subdue Appellant

with their fists, but Appellant continued struggling and broke free from the

officers. Id. at 61-62. With Corporal Kelly and Trooper Seiple in close pursuit,

Appellant ran to the driver side of his vehicle, reached in the window, and

pulled out a loaded firearm. Id. Appellant shot at both officers, critically

wounding Corporal Kelly, who had not yet retrieved his weapon from its

holster. Trooper Seiple fired the one shot in his chamber and retreated to

reload. Id. at 63-65. When Appellant exhausted his ammunition, he threw

his firearm in the vehicle, and reentered the driver’s seat. Id. Corporal Kelly

crawled over the guard rail and began firing into the front passenger seat

window. Id. at 66-67. Trooper Seiple fired into the back window. Appellant

was hit in the head, chest, and hand, but still managed to flee from the scene

in his vehicle.

Appellant stopped at Easton Hospital to seek medical treatment for his

gunshot wounds. Later that day, he was transferred to Lehigh Valley Cedar

Crest Hospital, which was better equipped to handle his injuries. During

transport, Appellant blurted out: “They fucking tased me. I got back up, ran

to my car, grabbed my gun, and let two off at his ass. I think I killed his ass.”

N.T. Jury Trial, 6/26/18, at 59-60. Appellant remained at Cedar Crest Hospital

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for five days. Not long after his arrival, Appellant waived his Miranda rights1

and agreed to speak with law enforcement officers. During the interrogation,

Appellant admitted to shooting at the troopers and trying to hit them with his

firearm. See N.T. Jury Trial, 6/25/18, at 195, 206; N.T. Jury Trial, 6/26/18,

at 10, 49, 95-96, 109-15, 123.

Trooper Seiple and Corporal Kelly remained on scene after Appellant

absconded. On the MVR, Trooper Seiple can be heard calling for help and

requesting an additional tourniquet. See N.T. Jury Trial, 6/24/18, at 58-60.

Corporal Kelly sustained a gunshot wound to his femoral artery, shoulder, and

neck, but was able to apply a tourniquet to his own leg before losing

consciousness. Id. at 60-62. Emergency medical personnel arrived on site

and performed CPR. After Corporal Kelly regained consciousness, he was

transported by medical helicopter to St. Luke’s Hospital in Bethlehem,

Pennsylvania. Corporal Kelly underwent three simultaneous surgeries, after

which he was placed in a medically-induced-coma for twelve days, attached

to a ventilator, and underwent dialysis. Three weeks later, Corporal Kelly was

released from the hospital with no memories of the events of November 7,

2017.

As a result of the shooting, Appellant was arrested and charged with

criminal attempt to commit homicide of both troopers and other related

charges. Appellant filed two pre-trial motions seeking to suppress statements

____________________________________________

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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that he made in the hospital, precluding expert testimony, seeking pre-trial

discovery, requesting a pre-trial conference, and urging dismissal of the two

DUI charges.

On May 22, 2018, the trial court held a hearing on Appellant’s pre-trial

motions. At the hearing, the Commonwealth presented four witnesses, who

testified to the circumstances surrounding Appellant’s various inculpatory

statements. At the conclusion of the hearing, the court took the matter under

advisement and directed the parties to file post-hearing briefs. After

consideration of the briefs, the court issued an order and opinion denying

Appellant’s suppression motion.

On June 24, 2018, Appellant proceeded to a jury trial. Appellant did not

testify or present a defense. However, during closing argument, trial counsel

pursued a justification defense, arguing that Appellant, a young African-

American male, was confused and afraid for his life because of the actions of

the troopers. On June 29, 2018, the jury convicted Appellant of two counts

each of attempted murder of a law enforcement officer, aggravated assault of

a law enforcement officer, disarming a law enforcement officer without lawful

authorization, and one count each of escape, carrying a firearm without a

license, and resisting arrest. The jury acquitted Appellant of the remaining

DUI charge. On the same day, the trial court convicted Appellant of exceeding

the posted speed limit. Sentencing was deferred so that a pre-sentence

investigation (“PSI”) and psychiatric evaluation could be completed.

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On August 31, 2018, Appellant was sentenced to an aggregate sentence

of fifty-three and one-half to one hundred and seven years of incarceration.

More specifically, Appellant received two consecutive periods of incarceration

of twenty to forty years at the assault of a law enforcement officer charges,

two consecutive terms of incarceration of three and a half to seven years for

the disarming law enforcement officer convictions, a consecutive period of two

to four years of incarceration for the escape offense, a consecutive term of

one to two years of incarceration for resisting arrest, and a consecutive period

of three and half to seven years of incarceration for carrying a firearm without

a license. The attempted murder convictions merged with the aggravated

assault charges for the purpose of sentencing.

Appellant filed a timely post-sentence motion challenging the jury

charge and requesting reconsideration of his sentence. With regard to the

latter, Appellant alleged that the sentencing court failed to consider mitigating

factors and that the record did not support a sentence in the aggravated

range. The trial court denied Appellant’s post-sentence motion and this appeal

followed. Both Appellant and the trial court have complied with the mandates

of Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

a. The trial court refused to suppress custodial statements
made by the Appellant while he was handcuffed in a trauma
center hours after suffering multiple gunshot wounds to his
head, chest, and hand. Was this reversible error?

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b. During the jury charge, did the trial court usurp the jury’s
role as trier of fact and commit reversible error by
substituting its own biased opinion for the trial testimony
and evidence in the case?

c. Should the Appellant’s sentence be vacated where (a) the
trial court conflated his mental illness with his competency
to stand trial and thereby failed to conduct a proper
mitigation analysis and (b) the trial court failed to state on
the record the reasons for its imposition of the statutory
maximum sentence on all charges except one?

Appellant’s brief at 6.

First, Appellant alleges that the trial court erred when it refused to

suppress the statement he made to police. See Appellant’s brief at 31. Our

standard of review when considering a challenge to the denial of a suppression

motion is:

We may consider only the Commonwealth’s evidence and so much
of the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. Where the record
supports the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error. An appellate court, of course, is not bound
by the suppression court’s conclusions of law.

Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016) (citation omitted).

Importantly, “it is the sole province of the suppression court to weigh the

credibility of witnesses,” and “the suppression court judge ‘is entitled to

believe all, part or none of the evidence presented.’” Commonwealth v.

Fitzpatrick, 181 A.3d 368, 373 (Pa.Super. 2018) (citing Commonwealth v.

Biasioli, 685 A.2d 151, 157 (Pa. 1996)).

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Appellant asserts that his statement should have been suppressed as it

was involuntary. See Appellant’s brief at 31-37. “It is well-established that

when a defendant alleges that his confession was involuntary, the inquiry

becomes not whether the defendant would have confessed without

interrogation, but whether the interrogation was so manipulative or coercive

that it deprived the defendant of his ability to make a free and unconstrained

decision to confess.” Commonwealth v. Yandamuri, 159 A.3d 503, 525

(Pa. 2017) (internal citations omitted). Voluntariness is determined by a

review of the totality of the circumstances. See Commonwealth v. Nester,

709 A.2d 879, 882 (Pa. 1998). In assessing the totality of the circumstances,

the suppression court should consider: “the duration and means of the

interrogation; the defendant’s physical and psychological state; the conditions

attendant to the detention; the attitude exhibited by the police during the

interrogation; and all other factors that could drain a person’s ability to resist

suggestion and coercion.” Yandamuri, supra at 525.

At the suppression hearing, PSP Corporal Arthur Johnson testified about

Appellant’s interrogation, which he conducted alongside PSP Corporal Chris

Yaworski at Lehigh Valley Hospital.2 See N.T. Suppression Hearing, 5/22/18,

____________________________________________

2 The Commonwealth called three other witnesses who testified to other
statements obtained from Appellant. Specifically, PSP Corporal Michael Irons
overheard Appellant say that “he drove himself to the hospital” while speaking
to medical personnel; Lehigh County Sergeant James Grell was standing guard
in Lehigh Valley Emergency Room, when Appellant looked at him and uttered,

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at 44-98. Before approaching Appellant, Corporal Johnson sought and

received permission from Appellant’s attending physician to speak with

Appellant. Id. at 50-51, 78. Corporal Johnson observed that Appellant was

conscious and alert. Id. at 53-54. After Corporal Johnson read Appellant his

Miranda rights, Appellant read the form to himself and signed the waiver.

Id. at 56-60. The ensuing interrogation lasted approximately twenty-five

minutes, during which Appellant told the officers the story of his entire day.

Id. at 61-62. Other than the occasional follow-up question, Appellant spoke

in uninterrupted narrative form. When Appellant began displaying signs of

discomfort, Corporal Johnson immediately terminated the interview. Id. at

72-73.

Appellant alleges that the waiver was involuntary because he “exhibited

obvious signs of discomfort and pain” and had a low average IQ. See

Appellant’s brief at 34. The trial court disagreed and explained its reasoning

for denying the motion to suppress, as follows:

With regard to the Motion to Suppress [Appellant’s] statements,
the only testimony submitted at the suppression hearing was by
the Commonwealth witnesses. At no point were the witnesses
impeached or contradicted. There was nothing about the
evidentiary presentation that gives us pause. We find the

____________________________________________

“you never think about that one second that changes your whole life, I should
have kept driving;” and PSP Trooper Peter Delgaizo overheard Appellant
telling Easton Hospital Emergency Room personnel that “The State Police shot
me.” N.T. Suppression Hearing, 5/22/18, at 12, 22, 32. However, since trial
counsel withdrew her suppression motion regarding these three statements,
we do not address them here. Id. at 103.

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Commonwealth evidence presented at the suppression hearing to
be credible.

....

Here, we note that the [s]tate [p]olice questioned [Appellant] who
appeared to be alert and cooperative. They read the Miranda
statement to [Appellant], then gave the written statement to
[Appellant], and permitted him to review it on his own after which
[Appellant] signed the waiver and indicated that he was willing to
speak to the police.

Thereafter, the [s]tate [p]olice [t]roopers merely asked
[Appellant] to provide a narrative of his whole day, including the
incident in question. [Appellant] voluntarily did so. Periodically,
the [t]roopers interrupted [Appellant] to ask for clarification
and/or follow up questions.

Apparently, [Appellant] wishes us to infer that because he was
injured and receiving medical attention at the time that he waived
his Miranda rights and agreed to submit to questioning that his
medical condition, by itself, rendered him incapable of waiving his
Miranda rights. However, the testimony [of] record supports that
[Appellant’s] waiver of his Miranda rights was knowing and
intelligent. Further, based on the record presented at the
Suppression Hearing, at no point did [Appellant’s] physical or
psychological state, the conditions attendant to the detention, or
the attitude exhibited by the [t]roopers during the interrogation,
[support] that there was any attempt to drain [Appellant’s] ability
to resist suggestion and/or coercion or that any aspect of
[Appellant’s] statement was involuntarily obtained.

Trial Court Statement of Reasons, 6/11/18, at 9-10. The trial court’s

conclusions are supported by the record.

Corporal Johnson testified that Appellant received his Miranda

warnings, appeared to understand them, and expressly agreed to speak with

them. Despite being told that he could take a break at any time, Appellant

never requested one. See N.T. Suppression Hearing, 5/22/18, at 62. Instead,

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Appellant was alert, cooperative, and responsive to the troopers’ questions.

When Appellant showed signs of discomfort, the interview was immediately

terminated. Id. at 72-73. No further testimony was provided by either side

on this issue.

The trial court explicitly credited Corporal Johnson’s testimony, which

did not support Appellant’s claim that he “exhibited obvious signs of

discomfort and pain during questioning” or that he had a low IQ. See Trial

Court Statement of Reasons, 6/11/18, at 9; see also Appellant’s brief at 34.

We may not, as Appellant’s argument would require, disregard the trial court’s

credibility findings where they are supported by the record, or infer alternate

findings based on facts not adduced at the suppression hearing. See

Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018) (When reviewing

a ruling on a motion to suppress, our scope of review is limited to the record

developed at the suppression hearing). Accordingly, we find that the trial

court did not err when it denied Appellant’s suppression motion.

Next, Appellant contends that the trial court abused its discretion by

providing improper commentary throughout its justification jury instruction,

which undermined Appellant’s justification defense. See Appellant’s brief at

37. We review the trial court’s jury instruction as follows:

[T]he reviewing court must consider the charge as a whole to
determine if the charge was inadequate, erroneous, or prejudicial.
The trial court has broad discretion in phrasing its instructions,
and may choose its own wording so long as the law is clearly,
adequately, and accurately presented to the jury for its
consideration. A new trial is required on account of an erroneous

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jury instruction only if the instruction under review contained
fundamental error, misled, or confused the jury.

Commonwealth v. Fletcher, 986 A.2d 759, 762 (Pa. 2009) (citations and

quotations omitted).

“It is properly the function of the trial judge to define and frame for the

jury those factual issues which are contested and which require the weighing

of conflicting evidence. In order to achieve this, it is frequently advisable to

suggest less significance regarding issues where the evidence is not in

dispute.” Commonwealth v. Kelly, 446 A.2d 941, 942 (Pa.Super. 1982).

Such instructions may be delivered at any time, “provided[:] (1) there is

reasonable ground for any statement [the trial court] may make; and (2) [the

trial court] clearly leaves to the jury the right to decide all the facts and every

question involved in the case regardless of any opinion of the court thereon.”

Commonwealth v. Nesbitt, 419 A.2d 64, 67 (Pa.Super. 1980).

Appellant elected not to testify at trial about what he believed the

situation to be when he deployed deadly force. Instead, the claim of self-

defense arose from the Commonwealth’s evidence as construed by trial

counsel in her closing argument, which focused on the one minute and six

seconds after Appellant was told to place his hands behind his back, wherein

Appellant attempted to pull away and was repeatedly tasered:

. . . . Look at those photographs. He is writhing in pain on the
ground through much of this encounter. He does not throw a
punch. He does not slap anyone. He doesn’t kick anyone. He is
incapacitated. 50,000 volts that somehow dissipates down to
1,200, 1,800, whatever number it was that Corporal Selverian told

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you. But it wasn’t given to him once. It was given to him over
and over and over again. You have the taser reports. It shows
you how many seconds he is being tasered in this incident, and
you can see it on the video.

He is turned upside down. He is falling into the highway, hitting
his head on the pavement. Being tasered by two tasers while he’s
in an open driving lane of Route 33.

When you hear the Judge’s instructions, you’re going to be asked
whether the Commonwealth has proven beyond a reasonable
doubt that [Appellant] was not in fear for his life. That he was not
in fear of being seriously injured.

....

[Appellant] has no idea what’s going on in that one minute and
six seconds. He says, for what? He doesn’t get an answer. No
one says you’re under arrest. Nobody ever says you’re under
arrest. Trooper Seiple doesn’t have handcuffs in his hands. They
both come at him. He doesn’t know whether he is going to be
beaten up or die.

And I expect that [the prosecutor] is going to tell you that it’s
ridiculous for him to think that. Is it ridiculous in this day and age
to think that a [twenty-two] year-old man with no experience with
the law, having this happen to him where no one even tells him
he’s under arrest or pulls out their handcuffs, that he doesn’t know
what’s happening to him. You bet he’s scared. You bet he’s
scared for his life.

....

He was not attempting to murder a law enforcement officer. He
was not trying to aggravatedly assault a law enforcement officer.
He was trying to stay alive.

N.T. Jury Trial, 6/29/18, at 12-16. Accordingly to trial counsel’s closing

argument, the one minute and six seconds after Appellant was told to put his

hands behind his back were where the jury should focus its attention. Since

Trooper Seiple never explicitly told Appellant that he was under arrest, or

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responded to Appellant’s question: “for what?”, Appellant did not know what

was going on when Trooper Seiple told him to turn around and put his hands

behind his back. Id. As a young black male, who considered himself

outnumbered and outgunned by the two troopers, Appellant contends that he

reasonably feared for his life and responded accordingly. Id. Trial counsel

went on to explain how Appellant’s actions after the shooting were consistent

with someone who felt that his actions were necessary to save his life, i.e.,

that he drove straight to a hospital, made no attempt to conceal the firearm,

told hospital staff that he had been shot by the police, and that he had shot

at the police. Id. at 15-16.

The trial court issued the following jury charge regarding the justification

defense counsel put forth in her closing argument:

Now, I need to speak to you about another rather complex
criminal definition. And that has to do with Pennsylvania’s
definition of self-defense, which is also referred to as justification.
And before I give you the instruction, let me briefly note for you,
for the most part, it is the Commonwealth’s burden of disproving
potential defenses. However, there are some defenses under the
law that a [d]efendant might be required to prove himself or
herself, like insanity and entrapment.

People who say the government entrapped me. You, as a
defendant, have to prove that yourself by your own evidence. Or
if you say, I am crazy and I cannot be held responsible for my
actions. You are going to have to call witnesses; professional
witnesses, like psychiatrists to come in and say, this guy is crazy.
We cannot hold him responsible. That’s the defendant’s burden
to introduce that kind of evidence.

However, self-defense does not require the [d]efendant’s proof
establishing self-defense. The way our law is designed, the
Commonwealth must demonstrate, from the record, that any

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reasonable person, reviewing the record, would conclude that
justification is not available, or self-defense is not available, to this
defendant. So, rather than proving something, this is a defense
that the Commonwealth has to disprove. Meaning it is not a
reasonable defense to consider.

So, here the self-defense argument is arisen because the attorney
puts it in play and/or maybe from a statement by the [d]efendant
somewhere that said he was fearful of his life.

So, let me give you the definition now. The [d]efendant has raised
the issue of whether he acted in self-defense when he shot at the
police. Self-defense is called justification in the law of
Pennsylvania. If the [d]efendant’s actions were justified, you
cannot find him guilty beyond a reasonable doubt. The issue
having been raised, it becomes the Commonwealth’s burden to
prove beyond a reasonable doubt that the [d]efendant did not act
in justifiable self-defense.

Now, there are special charges related to this case because deadly
force was used. So, the first matter that you must consider in
deciding whether the Commonwealth has met its burden in this
regard is what kind of force the [d]efendant used in this instance.
There are two kinds, obviously, deadly and non-deadly. The
Commonwealth claims here that deadly force was used by the
[d]efendant, and it must prove that claim beyond a reasonable
doubt.

Well, I think that it is without contention now, that when you start
firing guns around deadly force was being used in this incident.
But I will define deadly force anyway because I am required to.
Deadly force is force that under the circumstances in which it is
used, is readily capable of causing death or serious bodily injury.
Serious bodily injury is bodily injury that creates a substantial risk
of death or that causes serious permanent disfigurement or
protracted loss or impairment of the function of any bodily
member or organ.

According to this definition, force is not deadly force simply
because it happens to kill or seriously injur[e]. For example, a
slap in the face that freakishly and unexpectedly leads to death is
not ordinarily deadly force. A defendant uses deadly force when
he or she knows that his or her actions, under the circumstances

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in which he or she commits them, are readily capable of causing
death or serious bodily injury.

Now, with regard to the rules with regard to deadly force. Because
by matter, I am saying by operation of law, you should find that
the Commonwealth proves to you beyond a reasonable doubt,
that the [d]efendant used deadly force. Then to prove that such
force is not justifiable in this case, the Commonwealth must prove
one of the following elements beyond a reasonable doubt.

First element that the Commonwealth may prove. And these are
in the alternative. That the [d]efendant did not reasonably believe
that he was in immediate danger of death or serious bodily injury
from law enforcement at the time he used the force, and that,
therefore, his belief that it was necessary for him to use deadly
force to protect himself was unreasonable. Put another way, the
Commonwealth must prove either; one, that the [d]efendant did
not actually believe he was in danger of death or serious bodily
injury such that he needed to use deadly force to defend himself;
or that while the [d]efendant actually believed he needed to use
deadly force, his belief was unreasonable in light of all the
circumstances known to him.

Keep in mind, a person is justified in using deadly force against
another, not only when they are in actual danger or unlawful
attack, but also when they mistakenly but reasonably believe that
they are. A person is entitled to estimate the necessity for the
force he or she employs under the circumstances as he or she
reasonably believes them to be at the time.

In the heat of a conflict, a person who has been attacked ordinarily
has neither the time nor the composure to evaluate carefully the
danger and to make judgments about exactly how much force is
needed to protect himself.

Consider the realities of the situation faced by the [d]efendant
here when you assess whether or not the Commonwealth has
proven beyond a reasonable doubt either that he did not believe
he was actually in danger of death or serious bodily injury to the
extent that he needed to use such force; or that while he did
believe that, his belief was not reasonable.

So, the measuring stick is always the reasonable man measuring
stick. Not subjectively what you believe he was thinking at the

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time. You take a look overall at everything, and you make your
decision if you believe the decisions made were reasonable.

Now, the second one is that the [d]efendant knew. When I say
second one, let me move back. Again, like I said before, there
were two things. First, that the [d]efendant did not believe he
needed to use deadly force to protect himself or if he did believe
that he needed to use deadly force, that his belief was
unreasonable. It means it made no sense that he would want to
use deadly force. Do you understand? To protect himself. That
is the first one.

Now, the second one that the Commonwealth can prove instead
is this one. And as I said, they are in the alternative. The
Commonwealth only has to prove one to disprove self-defense.

The second one is this. That the [d]efendant knew that he could
avoid the necessity of using deadly force with complete safety.
And there are two elements. One is by retreating. When I say
retreating, it means that the [d]efendant has an obligation to
retreat, but he failed to do so.

However, there are exceptions to having to retreat. First of all, if
you are in your own home, by law, you are not obligated to retreat
from your own dwelling. That is one time. But that is not in play
here.

Secondly, a defendant is not obligated to retreat from his place of
work. So, if you are at work and someone attacks you, you can
stand your ground so to speak. Also, the defendant cannot use
deadly force if he can avoid the necessity of using deadly force if
he complies with a demand that he abstained from taking any
action he had no duty to take, and he failed to do so.

Now, this is a little complex, but it is going to come to focus
shortly. With regard to the use of deadly force under arrest, the
Commonwealth needs to prove only this to satisfy you beyond a
reasonable doubt that the [d]efendant was not justified to use
deadly force. If the [d]efendant used force to resist an arrest
when the [d]efendant knows that the arrest is being made by a
police officer whether or not the arrest is lawful.

However, a defendant does not forfeit his right to claim that his
actions were justified if he or she reasonably believes that he was

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protecting himself against unlawful and deadly force by the officer.
To prove this element then, the Commonwealth must prove
beyond a reasonable doubt that the [d]efendant did not believe
that the arresting officer was using unlawful and deadly force
against him. Or if the [d]efendant did believe that, that his belief
was not reasonable. It is a really complex decision by you because
there are several aspects to this. And it is going to be up to you
to figure out and sort through this.

Obviously, at the beginning of this whole issue, when the
[d]efendant was asked to put his arms behind his back, clearly no
reasonable person would believe that. Obviously, at the time
when this whole incident arose, when the [d]efendant was asked
to put his arms behind his back there was no threat. No
reasonable person would believe they were under a threat of
deadly force. He was being arrested for DUI. There were no
weapons displayed, no aggressive action taken. He had no lawful
authority to resist the arrest as I explained it before. But he did.
He did not want to submit.

The police officers tried to detain him, and it progressively
increased from there. He had no right to engage in the fight that
he did with the police simply because he decided on his own that
he did not want to be arrested. Frankly, if he believed that the
arrest was unlawful he is wrong because it was not unlawful, the
police had the authority because they had –probable cause to
believe based on what they saw that he may have been under the
influence. An unlawful arrest is if they tried to use illegal force or
violated his constitutional rights, then that DUI arrest was an
unlawful arrest. But he can never say that the acts of the police,
when they attempted to arrest him for the DUI was unlawful.

By operation of law, it is not. No reasonable person can believe
that it was unlawful what they were doing. If they are wrong and
he proves himself innocent at trial, that just means they made a
mistake. It does not mean that the arrest was unlawful.

So, when they attempted to detain him for the DUI, it was a lawful
arrest. And then he resisted and they began using various, I
guess, items of force in their tool bag with regards to trying to
control him. I guess, the argument is that at some point the police
began acting wholly irrationally, unlawfully, and that any
reasonable person should believe that they should have backed
off and let him alone because the continued use of force was

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threatening to his life. Even though he was resisting it was still
threatening his life, and he had a right . . . at some point to
defend his life. That is the argument and that is for you to decide.

At any point in time, did the police activity become so
unreasonable that they were, on their own, putting his life in
danger because they were attempting to detain him? Such that it
was reasonable for him to run around his car, access his weapon
and begin a confrontation by introducing a deadly weapon to the
arrest. That is what his argument is, and you have to make a
determination, is that reasonable? Is that a decision that people
can make when the police attempt to arrest them for a DUI, and
there is a struggle because the person is not happy about it?

And that happens in everyday life that you get people that do not
want to submit to arrest because they are not happy. Does that
mean that the entire event, as it escalates, at some point that the
person could say, okay. They have to stop trying to detain me
because now I believe I am in danger of death. And because they
continue to try to control me, I can break free and get a gun and
defend myself. That is what the argument is, but that’s only for
you to decide.

N.T. Jury Trial, 6/29/18, at 98-108. At the conclusion of the instructions, trial

counsel objected to the charge and moved for a mistrial, which was denied.

Id. at 111-12, 115-18.

According to Appellant’s self-defense argument, it was necessary to

utilize a deadly weapon because he reasonably feared for his life from the

police. Appellant argues that the trial court defeated his defense when it

erroneously injected its own findings of fact and opinion into the justification

instruction by stating that: (1) no reasonable person would have believed he

was under threat of deadly force prior to the attempt to arrest Appellant; (2)

Appellant had no right to resist a lawful arrest; and (3) it was unreasonable

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for Appellant to believe that he needed to respond with deadly force to a

routine DUI arrest. See Appellant’s brief at 37-43.

The Commonwealth counters that the trial court’s statements were an

accurate summation of the law, consistent with the facts adduced at trial, and

responsive to Appellant’s closing argument. See Commonwealth’s brief at 26.

Its evidence revealed that, until Appellant was instructed to put his arms

behind his back, there was no violence or resistance displayed by any party.

Id. Further, trial counsel did not dispute this point in her closing argument.

Id. Therefore, statements regarding the events that proceeded the struggle

were accurate summations of the facts. Additionally, the trial court’s

statements on the law tracked relevant precedent in this area, as well as trial

counsel’s closing argument. Id. at 28. We agree with the Commonwealth

and address Appellant’s arguments individually, below.

First, Appellant takes issue with the trial court’s statement that the

Commonwealth had proven that Appellant utilized deadly force and that no

reasonable person would have believed he was under the threat of deadly

force prior to the attempt to arrest Appellant. However, this statement was

entirely consistent with the undisputed facts presented at trial.

At trial, the Commonwealth alleged and the MVR portrayed that no

firearms or threats of force were introduced into the incident until after the

arrest of Appellant failed. Later in the encounter, the video depicted Appellant

shooting his firearm at the troopers, critically wounding Corporal Kelly. At the

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hospital, Appellant admitted to firing his weapon at the officers, even

conceding that he may have killed one of them. Appellant never recanted

these statements. While trial counsel alleged that the situation transformed

into one where Appellant’s response was justified, she never argued that

Appellant did not deploy his firearm or that his actions would have been

justified earlier in the encounter. The Commonwealth strongly contradicted

the defense theory that the situation devolved into one where Appellant’s

response was justified. Instead, it contended that Appellant provoked this

encounter. Id. at 32. Therefore, the trial court’s comments properly steered

the jury towards this factual dispute.

Second, Appellant asserts that the trial court’s declaration that Appellant

had no right to resist a lawful arrest was improper. Again, we are constrained

to disagree, as legal precedent in this area is definitively opposed to

Appellant’s argument. In the context of resisting arrest with respect to the

defense of justification, our Supreme Court has explained that arrestees do

not have the right to resist a lawful arrest unless or until officers put the

arrestee in fear of his own life, as follows:

[A]n arrestee’s use of force in self[-]protection is justified when
the arrestee reasonably believes that such force is immediately
necessary to protect against an arresting officer’s use of unlawful
and deadly force, i.e., force which is readily capable of causing
death or serious bodily injury. An arresting officer’s use of
excessive force capable of causing less than serious bodily injury
or death can be vindicated by recourse to subsequent legal
remedies.

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Thus, . . . there is no justification for resisting arrest; the only
circumstance under which the law will contemplate physical
resistance to a police officer is when the officer unnecessarily uses
unlawfully excessive or deadly force which triggers the right of
self-defense. The focus ... [is] not whether the underlying arrest
was based on probable cause, but rather whether the officers’ use
of force in effectuating a lawful arrest [is] itself, unlawful. A police
officer may only use the amount of force which is necessary to
accomplish the arrest.

Commonwealth v. Biagini, 655 A.2d 492, 499 (Pa. 1995) (quoting

Commonwealth v. French, 611 A.2d 175, 179 (Pa. 1992)); see also 18

Pa.C.S. § 505(b)(1)(i) (The use of force is not justifiable “to resist an arrest

which the actor knows is being made by a peace officer, although the arrest

is unlawful”). Since it is well-settled that arrestees do not have the right to

resist either a lawful or unlawful arrest, the trial court’s instruction was an

accurate summary of the legal precedent in this area. Id.

This instruction aligned with the undisputed facts of the case. A careful

reading of trial counsel’s closing argument reveals that this instruction was

consistent with Appellant’s self-defense argument, because it was premised

upon the undisputed fact that a routine and lawful DUI arrest transformed into

a highly charged and potentially lethal encounter after the botched arrest

attempt put Appellant in fear for his life. Specifically, trial counsel argued that

Appellant’s use of deadly force became justified once the troopers deployed

their tasers and repeatedly punched Appellant in the face and body, which

occurred after Appellant began resisting their lawful DUI arrest. See N.T.

Jury Trial, 6/29/18, at 12-16. Again, it was not until after the officers told

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Appellant to place his arms behind his back that the defense and

Commonwealth theories of the case diverged.

Finally, Appellant contends that the trial court opined that it was

unreasonable for Appellant to respond to a routine DUI arrest with force, when

it said the following:

At any point in time, did the police activity become so
unreasonable that they were, on their own, putting his life in
danger because they were attempting to detain him? Such that it
was reasonable for him to run around his car, access his weapon
and begin a confrontation by introducing a deadly weapon to the
arrest. That is what his argument is, and you have to make a
determination, is that reasonable? Is that a decision that people
can make when the police attempt to arrest them for DUI, and
there is a struggle because the person is not happy about it?

And that happens in everyday life because you get people that do
not want to submit to arrest because they are not happy. Does
that mean the entire event, as it escalates, at some point that the
person could say, okay. They have to stop trying to detain me
now because now I believe I am in danger of death. And because
they continue to try to control me, I can break free and get a gun
and defend myself. That is what the argument is, but that’s only
for you to decide.

N.T. Jury Trial, 6/29/18, at 107-108. A review of the definition of legal

reasonableness reveals that Appellant has mischaracterized the trial court’s

instruction in order to support his argument.

Importantly, reasonableness in the context of the justification defense,

is defined as follows:

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

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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.

Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012). Stated

differently, an arrestee that was subject to a lawful arrest does not forfeit his

right to subsequently claim a justification defense if he can establish a

subjective and objective reasonable belief that deadly force was a necessary

response to unlawful police action. Id. In this section of the jury charge, the

trial court was attempting to explain the dichotomy between a subjectively-

held reasonable belief and an objectively-held reasonable one. In order to

illustrate a challenging legal concept, the court parsed out trial counsel’s

closing argument and summarized it in light of the definition of

reasonableness. Rather than prejudice Appellant, the trial court’s instruction

gave Appellant’s justification defense full credit. Accordingly, Appellant’s final

contention of error fails.

When viewed as a whole, we find that the trial court adequately

presented the concepts of the justification defense to the jury. See

Commonwealth v. Ragan, 743 A.2d 390, 397 (Pa. 1999). While the

instruction at times may not have been a model of clarity, we do not find that

reversible error occurred. To the extent that the court made definitive

pronouncements regarding deadly force, the lawfulness of the attempted

arrest, the right to resist a lawful arrest, and the reasonableness of the use of

force, it did so consistently with the facts and arguments adduced at trial. The

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method chosen illustrated a difficult legal concept for the jurors, which had

been rendered more challenging to access due to the sole assertion of self-

defense in the closing argument. Since nothing in its instruction was

“inadequate, erroneous, or prejudicial,” we find that the trial court did not

abuse its discretion. See Fletcher, supra at 792. Accordingly, no relief is

due.

In his final claim, Appellant challenges the discretionary aspects of his

sentence. See Appellant’s brief at 46. Specifically, Appellant attacks his

sentence on two related grounds: (1) that the trial court failed to consider

mitigating factors, and (2) that the trial court imposed a sentence outside of

the sentencing guidelines without an adequate statement of reasons. Id.

The following principles apply to our consideration of whether review of

the merits of these claims is warranted. “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.” Commonwealth v. Samuel, 102 A.3d

1001, 1006-07 (Pa.Super. 2014). In determining whether an appellant has

invoked our jurisdiction, we consider four factors:

(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.

Id.

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Appellant filed both a timely post-sentence motion for reconsideration

of his sentence and a notice of appeal. In his motion, Appellant alleged that

the court failed to properly consider mitigating factors and to provide an

adequate explanation for sentencing above the guidelines. He also raised both

issues in his concise statement of errors complained of on appeal.

Accordingly, Appellant properly preserved his sentencing challenges.

Therefore, we now proceed to determine whether Appellant has raised a

substantial question.

Appellant’s brief contains a statement of reasons relied upon for his

challenge to the discretionary aspects of his sentence as required by Pa.R.A.P.

2119(f). See Appellant’s brief at 46-52. In his statement, Appellant claims

that a substantial question is presented by the fact that the trial court failed

to consider mitigating evidence and adequately state its reasons for exceeding

the standard range and imposing the statutory maximum penalties. Id. We

find that this claim raises a substantial question, as it challenges Appellant’s

alleged excessive sentence in conjunction with an assertion that the court

failed to consider mitigating factors. See Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa.Super. 2014). Accordingly, we will consider the merits of

Appellant’s challenges to his sentence.

The following principles apply to our substantive review of Appellant’s

claims. “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

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defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super. 2009). “We cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead,

we review the trial court’s determination for an 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.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

A trial court’s sentence “should call for confinement that is 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.” 42 Pa.C.S. § 9721(b). “When imposing 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.” Antidormi, supra at 761 (citations and

quotation marks omitted). Finally, when the trial court has reviewed a

presentence investigation (“PSI”), it is presumed that the trial court is aware

of and has been informed by all appropriate sentencing factors and

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considerations. Commonwealth v. Bullock, 170 A.3d 1109, 1126

(Pa.Super. 2017).

Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we

find that: (1) the court intended to sentence within the guidelines, but “applied

the guidelines erroneously;” (2) a sentence was imposed within the guidelines,

“but the case involves circumstances where the application of the guidelines

would be clearly unreasonable;” or (3) “the sentencing court sentenced

outside the sentencing guidelines and the sentence is unreasonable.” 42

Pa.C.S. § 9781(c).

The trial court imposed the maximum or aggravated range sentences

on all charges except escape. See Trial Court Opinion, 1/18/19, at 8.

Therefore, the sentence must be affirmed unless it is unreasonable. While

reasonableness is not defined in the statute, it “commonly connotes a decision

that is irrational or not guided by sound judgment.” Commonwealth v.

Walls, 926 A.2d 957, 963 (Pa. 2007) (citation and quotation omitted).

Appellant argues that his sentence was unreasonable because the court

did not adequately consider his low IQ, the fact that he had never been in

“serious trouble” before, his mental health history, or that he suffers from a

neurocognitive disorder resulting from a traumatic brain injury. See

Appellant’s brief at 48-49. Appellant further alleges that the trial court did not

state adequate reasons for its deviation from the standard range of the

sentencing guidelines. Id.

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Appellant has failed to convince us that the trial court’s exercise of its

broad discretion was unreasonable. The certified record demonstrates that

the trial court properly relied on several factors in electing to impose a

sentence that exceeded the guidelines, all of which established that the court

followed the general principles outlined in § 9721(b), i.e., that the sentence

be consistent with the protection of the public, gravity of the offense as it

relates to the victim and community, and the rehabilitative needs of the

offender. Before issuing its sentence, the court received victim impact

testimony from Corporal Kelly, Corporal Kelly’s wife, Trooper Seiple, and

Colonial Police Chief Roy Seiple. See N.T. Sentencing Hearing, 8/31/18, at 5-

40. Then, the prosecutor argued for maximum consecutive sentences, due to

Appellant’s failure to take responsibility for his actions or express any remorse.

Id. at 40-41.

In fashioning the judgment of sentence, the trial court stated that it had

received the sentencing guidelines and had reviewed the PSI, wherein

Appellant stated that he reinitiated the traffic stop because he was “annoyed”

with Trooper Seiple, that he knew he had not performed well on the field

sobriety test, and that he intentionally tried to disarm the police officers when

they attempted to arrest him. Id. at 42-43. The court also noted several

mitigating factors that it gleaned from the PSI, including: that Appellant had

no prior record, received his high school diploma in 2014, had a low IQ, was

cooperative with the probation department during the pre-sentence

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investigation, had a good upbringing, maintained a “relatively good”

relationship with his mother, and acknowledged some responsibility for the

crime. Id. at 44-45.

The trial court also reviewed psychological and psychiatric evaluations

completed by the Commonwealth, defense expert Dr. Gerald Cook, and a

school psychiatrist in 2013. The court found all three reports to be consistent,

and focused on Dr. Cook’s report, concluding that Appellant has “significant

mental health problems.” Id. at 50. However, according to Appellant’s own

expert, he was not psychotic or delusional at the time of the crime, and his

actions were intentional. Id. at 49.

The court also received mitigating evidence from Appellant’s uncle, who

testified that Appellant was “a good kid,” up until he was assaulted in the

eleventh grade. Id. at 56-57. As a result of that incident, Appellant became

paranoid and always “thought that somebody was out to get him.” Id. at 57-

58. Appellant chose not to speak at sentencing, but trial counsel did offer

argument on his behalf. Id. at 68-81. Counsel reiterated the mitigating

factors concerning Appellant’s age, lack of a prior record, history of mental

health problems, and experience as a victim of a prior assault that resulted in

a traumatic brain injury. Id. at 68-81. Having taken all of this information

into consideration, the court then imposed the aforementioned sentence.

Appellant has failed to establish that the sentence was irrational or

guided by unsound judgment, because multiple crimes were committed during

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this event notwithstanding the brief time in which it took place. Our review

confirms that the trial court was aware of, considered, and weighed

Appellant’s mitigating factors, along with other relevant sentencing factors.

Significantly, the court found that Dr. Cook’s psychological evaluation was

compelling evidence of the danger that Appellant presented to the community.

It explained, the report “[sent] a chill through my body,” because the doctor

found that despite his mental health problems, Appellant “knew what he was

doing and intended to shoot these troopers.” Id. at 82.

Additionally, while the court discussed the details of the assault in detail,

it only did so to highlight why this was not an ordinary case of aggravated

assault, such that an upward departure from the guidelines was appropriate.

Use of the underlying facts in this manner is permissible as long as it was not

the only factor relied on when imposing a sentence above the guidelines. See,

e.g., Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006)

(upholding imposition of an aggravated range sentence where one of the

grounds for doing so was that case deviated from a “typical” case of the

offense under consideration).

The record establishes that the court considered Appellant’s mental

health history in detail, but found this mitigating factor and others were

outweighed by the seriousness of the crime and the impact Appellant’s actions

had on the community. Although Appellant received an extreme sentence by

virtue of the fact that the aggregate sentence exceeds the average lifespan,

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the sentence fashioned was fully informed by all of the facts and circumstances

presented in the PSI report, multiple mental health evaluations, and the victim

and defense testimony provided at sentencing. Importantly, while we may

have sentenced Appellant differently, our standard of review does not give us

license to reweigh those mitigating circumstances against the aforementioned

factors. Macias, supra at 778. The trial court may have reached the limits

of its discretion, but on the record before us we cannot reach the conclusion

that the trial court exceeded its authority.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/15/2020

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