Com. v. Harris, M.

J-S37034-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MALIK HARRIS :
:
Appellant : No. 394 EDA 2023

Appeal from the Judgment of Sentence Entered September 6, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0005107-2017

BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 21, 2023

Malik Harris (Appellant) appeals from the judgment of sentence imposed

after a jury convicted him of aggravated assault and possession of an

instrument of crime (PIC).1 After careful review, we affirm.

Facts

On May 13, 2017, Appellant was residing in a house located at 3435 F

Street, Philadelphia, with the victim, David Smith (Smith), and Smith’s family.

See N.T., 6/7/22, at 37, 61. Smith’s family included Smith’s wife, Shana

Derry (Derry), and their four children. Id. at 37, 60-61. Appellant rented a

bedroom in the house. Id. at 48.

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1 18 Pa.C.S.A. §§ 2702(a), 907(a).
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Smith testified at trial that he had known Appellant for over ten years.

Id. at 42. However, Smith alleged he had no memory of events that occurred

on May 13, 2017. Id. at 37-38. Accordingly, the Commonwealth refreshed

Smith’s recollection with a written police statement Smith had executed three

days after the events, on May 16, 2017.2 See id. at 38, 45-52.

In the statement, Smith told police he went to his home around noon

on May 13, 2017, after receiving an urgent phone call from Derry. Id. at 46,

48. Derry had relayed that Appellant was at the house and engaged in a

verbal altercation with Derry and her brother. Id. Upon entering the house,

Smith encountered Appellant and Appellant’s girlfriend in Appellant’s second-

story bedroom. Id. Smith told Appellant “he should probably find somewhere

else to live.” Id. at 46. Smith’s statement enraged Appellant, who “snapped”

and “sucker punched [Smith.]” Id. at 46-47. Appellant then pulled from his

waist a .40 caliber handgun that belonged to Smith.3 Id. at 49-50; see also

id. at 47.

A physical struggle ensued. Id. at 47; see also id. (Smith stating in

the police statement that he “pushed the slide back on the gun so [Appellant]

couldn’t shoot me”). During the struggle, Appellant and Smith fell down the

____________________________________________

2 Smith testified on cross-examination that he did not recognize his signature

or handwriting on the police statement. N.T., 6/7/22, at 58-59.

3 Smith told police he was unaware Appellant had his gun and had never given

Appellant permission to possess it. N.T., 6/7/22, at 50.

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stairs and a bullet ejected from the gun. Id.; see also id. (Smith telling

police, “I don’t know if [the bullet] hit anyone.”). When Smith and Appellant

“hit the bottom” of the stairs, Appellant and his girlfriend “were beating on

[Smith].” Id. Appellant “pull[ed Smith] outside” to the porch, where the men

continued “wrestling with the gun.” Id. Smith stated that Appellant

eventually “got the gun from me.” Id. Appellant then opened fire on Smith

while Smith was heading back toward the front door of the house.4 Id. Smith

“tried running up the steps” as Appellant continued firing. Id. at 47-48; see

also id. at 48 (Smith stating he saw “bullets actually hitting” the open front

door). Thereafter, emergency responders arrived and transported Smith to a

hospital, where he underwent emergency surgery and was treated for seven

gunshot wounds. Id. at 65-66.

During Smith’s trial testimony, the Commonwealth played a video that

was recorded on May 13, 2017, from a security camera on a neighboring

property. Id. at 52-53. Smith confirmed that one of the individuals in the

video “[l]ooks like myself.” Id. However, Smith claimed not to recognize

anyone else in the video, and had no recollection of events depicted in the

video. Id. at 54.

Derry testified that on May 13, 2017, she was in the house with her

children. Id. at 62. Derry heard Smith and Appellant “arguing” and “fighting”

____________________________________________

4 Smith and Derry’s children were in the house when Appellant began
shooting. N.T., 6/7/22, at 21, 23, 47, 63.

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in Appellant’s bedroom. Id. at 63. Derry confirmed that as the confrontation

escalated, Appellant “pushed [Smith] outside on the porch[.]” Id. Derry

heard gunfire, but stated she “wasn’t … outside when [the shooting]

happened” and did not see Smith get shot. Id. at 63; see also id. at 64.

Derry called the police. Id. at 66.

Philadelphia Police Officer Daniel Martinez testified he was patrolling

near the house in his marked vehicle when he received a radio dispatch to

respond to the shooting. Id. at 18-19. Upon arriving at the house, Officer

Martinez saw Smith lying in a pool of blood. Id. at 20. Officer Martinez asked

Smith who shot him, and Smith identified Appellant as the shooter; Smith

described Appellant and the clothing he was wearing. Id. at 21-22. Officer

Martinez relayed the information to dispatch, which issued a flash broadcast

about the suspect. Id. at 22.

Philadelphia Police Detective Thomas Somogyi (Detective Somogyi)

testified that he was the lead investigator assigned to Smith’s shooting. Id.

at 76-77. Detective Somogyi interviewed Smith at the hospital three days

after the shooting. Id. at 84-85. Detective Somogyi confirmed that he

transcribed the statement Smith gave from his hospital bed. Id. at 91-92.

Detective Somogyi testified that he provided Smith with the opportunity to

read the transcribed statement, and Smith “signed after every page.” Id. at

92. Detective Somogyi also asked Smith whether he wished to make any

modifications or changes to the statement, and Smith declined. Id. at 92-93.

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Detective Somogyi read Smith’s police statement aloud for the jury. Id. at

93-97.

Detective Somogyi also testified about executing a search warrant at

the house. Id. at 79-82, 97. During the search, police recovered a box of

.40 caliber ammunition. Id. at 82. Police never recovered the handgun. Id.

at 97.

Detective Somogyi explained that shortly after the shooting, police

“developed [Appellant] as a suspect.” Id. Detective Somogyi learned that

Appellant was being treated for injuries at a local hospital emergency room.

Id. Detective Somogyi went to the hospital on the date of the shooting, and

discovered Appellant was being treated for a gunshot wound to his leg. 5 Id.

at 98.

The Commonwealth also presented testimony from Ivan Pagan (Pagan).

Pagan testified that at the time of the shooting, he was riding in the front

passenger seat of a car that was driving on F Street. N.T., 6/8/22, at 3-4.

Pagan saw two men arguing. Id. at 4. He described one of the men as “light-

skinned” and possibly Hispanic, and the other man as “very big” and “dark-

skinned.” Id. at 4, 5. The Commonwealth asked Pagan the following

questions:

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5 The parties stipulated that Appellant suffered a single gunshot wound on May

13, 2017, received treatment at a hospital emergency room, and was
discharged the same day. N.T., 6/8/22, at 51.

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Q. [Prosecutor:] When you saw [the two men] fighting, what did
you see?

A. [Pagan:] Originally I ended up seeing one of them holding the
gun. The light-skinned one was trying to take it from the[] [other
man]. They ended up on the porch and continued the argument
hassling over the firearm. The Hispanic guy tried to lock[] himself
in the house and that’s when the shots were fired.

Q. Who fired the shots?

A. The dark-skinned guy.

Q. Did you ever see the person you’re describing as the light-
skinned guy with the gun?

A. No.

Q. Do you know either of those people?

A. No.

Id. at 5.

Pagan further testified that the shooter “ran to somebody’s porch and

put a hoodie on.” Id. at 6; see also id. at 7 (Pagan stating Appellant “put a

hoodie on that one of his friends … was giving him.”). The prosecutor asked

Pagan to “look around the courtroom today. Do you recognize anybody that

you saw that day?” Id. at 7. Pagan replied, “Not really. I would not be able

to recall.” Id. The prosecutor reminded Pagan that on the day of the

shooting, Pagan went to the police station and was presented with a photo

array that included a picture of Appellant. Id. at 7-8, 10; see also id. at 8

(Pagan affirming his police statement could “[p]ossibly” refresh his

purportedly faulty recollection). In his police statement, Pagan identified

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Appellant as the shooter from the photo array. N.T., 6/8/22, at 18-19, 23;

see also id. at 18 (testimony from police detective who presented the photo

array stating that Pagan selected Appellant’s photo from the six photos

presented). On cross-examination, Appellant’s trial counsel impeached Pagan

with his past convictions for, inter alia, theft and PIC. Id. at 14-15.

Appellant was the only defense witness. Appellant testified in a manner

consistent with his claim that he shot Smith in self-defense. Appellant stated

that when Smith arrived at the house, he went to Appellant’s bedroom and

expressed displeasure with the dispute between Appellant and Derry. N.T.,

6/8/22, at 67. According to Appellant, Smith asked him to leave the house,

and “the argument started getting a little hostile.” Id. at 67, 68. Appellant

testified that Smith

started stepping closer toward me and then started pushing me.
It was a shoving match. He swings and I swing and we start
fighting in the room. As I pushed [Smith] against the wall he pulls
his gun from his waist and shoots my leg. I’m so close to [Smith]
and when I went to grab my leg the gun is still right there, so I
grabbed the gun and tried to wrestle the gun from [Smith,] being
afraid of being shot again. We tussle over the gun into the hallway
all the way to the top of the steps. As I’m walking backwards
down the steps trying to pull the gun from him we wound up
tripping down the steps. The gun falls and [Smith] grabs it and
then I grab it. All I was trying to do was protect myself to
survive[,] is the only thing going through my mind. As I go
through the door trying to get the door open[,] I pull [Smith] back
out of the house and we tumble down the steps and onto the car
and then I finally got ahold of the gun.

Id. at 68-69.

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Appellant estimated he fired “[t]hree, maybe more” shots at Smith. Id.

at 74. Appellant stated he “wasn’t thinking” when he fired the gun; rather,

he was “[j]ust trying to survive.” Id. Appellant testified that he dropped the

gun as he was running away. Id. Trial counsel asked Appellant: “If [Smith]

hadn’t produced a firearm, would this have ever gone beyond a fistfight?” Id.

at 79-80. Appellant responded: “With me, no. … I just know I would have

packed my things and left.” Id. at 80.

On cross-examination, the prosecutor questioned Appellant about

statements he made to police when he was at the hospital emergency room

shortly after the shooting.6 Id. at 80. The prosecutor asked: “You never say

… that [Smith] wanted to kill you, am I correct?” Id. Appellant conceded the

prosecutor was correct. Id. at 80-81.

Appellant also denied changing his clothes or putting on a hoodie before

going to the hospital. Id. at 82-83. Referencing the video recording, the

prosecutor asked Appellant:

Q. That door opening right there, that’s the house you lived in at
[3435] F Street?

A. Yes.

Q. That person in the white shirt is you, correct?

A. Yes.

Q. That person is [Smith] whose back is to the door, correct?
____________________________________________

6Appellant confirmed the police had advised him of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966). N.T., 6/8/22, at 77.

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A. Yes.

Q. You would agree with me [at] the timestamp of 12:14:29[,]
you have sole possession of the gun, correct?

A. Right there, yes.

Q. [Smith] does not have a handgun at this point?

A. No.

Q. [Smith] has no weapons?

A. No.

Q. You would agree with me at 12:14:31[, Smith] turned his back
to you to walk inside the house, correct?

A. Yeah. He walked backwards. He didn’t turn around and run.

Q. And now [Smith is depicted] walking into the house. Would
you agree with me?

A. Yes.

***

Q. And you’re holding a gun?

A. Yes.

Q. You agree with me that’s you shooting [Smith]?

A. Yes.

Q. That’s you shooting him again?

A. Yes.

Id. at 83-85.

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On re-direct, trial counsel asked Appellant if he tried to take the handgun

away from Smith. Id. at 89. Appellant replied that he bit Smith on the hand

in an attempt to disarm him. Id. Appellant also testified that Smith

threatened to kill Appellant during the scuffle outside the house. Id. at 90;

but see also id. (Appellant confirming he had sole possession of the firearm

when Smith made death threats).

On re-cross-examination, the prosecutor asked Appellant: “When you

were standing outside on the sidewalk and you had control of the gun[,] you

could have left, correct?” Id. at 97. Appellant responded: “I don’t know.”

Id. (emphasis added).

Procedural History

Shortly after the shooting, in May 2017, the Commonwealth charged

Appellant with aggravated assault and PIC, as well as attempted murder,

firearms not to be carried without a license, and carrying firearms in

Philadelphia (remaining offenses).7 As noted above, the case did not go to

trial until 2022.8

____________________________________________

7 18 Pa.C.S.A. §§ 901(a), 2502, 6106(a)(1), 6108.

8 Appellant was released from pre-trial incarceration in November 2018,
pursuant to Pa.R.Crim.P. 600 (governing speedy trial rights). N.T., 9/6/22
(sentencing), at 17. A bench warrant was issued for Appellant’s arrest on
June 24, 2019, when he failed to appear for court. Id. Police arrested
Appellant on new charges arising from an incident that occurred on February
25, 2021. Id.

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J-S37034-23

On June 9, 2022, the jury found Appellant guilty of aggravated assault

and PIC, but acquitted him of the remaining offenses. The trial court deferred

sentencing for the preparation of a pre-sentence investigation (PSI) report.

The trial court held a sentencing hearing on September 6, 2022.

Appellant requested a standard-guidelines-range sentence. Id. at 12; see

also id. at 9-14 (trial counsel arguing Appellant’s criminal conduct was

“aberrant,” and emphasizing mitigating factors such as Appellant’s difficult

childhood, and Appellant’s prior record score (PRS) of zero). The

Commonwealth asked the trial court to impose “a significant period of state

incarceration.” Id. at 14-15. Appellant exercised his right of allocution and

expressed a degree of accountability for the shooting. Id. at 23-26. The trial

court also heard testimony from Appellant’s mother, Ebony Harris, who spoke

on Appellant’s behalf. Id. at 18-23.

The trial court sentenced Appellant to an aggravated range 6½ - 13

years in prison for aggravated assault, and a consecutive five years of

probation for PIC. Id. at 34. Appellant timely filed a post-sentence motion

(PSM). Appellant claimed the verdicts were against the weight of the evidence

and the trial court abused its discretion by imposing an unreasonably

excessive sentence. PSM, 9/15/22, ¶¶ 5-8. The trial court did not hold a

hearing on the PSM, and it was denied by operation of law on January 4, 2023.

See Pa.R.Crim.P. 720(B)(3)(a) (stating: “If the judge fails to decide [a post-

sentence] motion within 120 days, or to grant an extension as provided in

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paragraph (B)(3)(b), the motion shall be deemed denied by operation of

law.”).

On February 3, 2023, trial counsel filed a notice of appeal as well as a

motion to withdraw as Appellant’s counsel.9 The trial court granted the motion

to withdraw and appointed new counsel (who represents Appellant in this

appeal). Thereafter, the judge who sat as the trial court was transferred to

the Civil Division of the Philadelphia Court of Common Pleas, and did not order

Appellant to file a Pa.R.A.P. 1925(b) concise statement or issue trial court

opinion.10

Appellant presents the following questions for review:

A. Was the evidence insufficient to sustain the guilty verdicts for
aggravated assault and PIC, as the Commonwealth failed to
disprove beyond a reasonable doubt the Appellant’s claim of
self-defense, where the complainant was the initial aggressor
who then escalated the incident when he shot the Appellant,
which then led to a life-struggle over the firearm in which the
Appellant had no choice to but [sic] shoot [Smith] with that
same firearm. Additionally, Appellant was in his own residence,
had no duty to retreat, but did nonetheless leave for safety?

____________________________________________

9 Trial counsel explained that Appellant had not retained him for the appeal.

Motion to Withdraw, 2/13/23, ¶ 4.

10 The lack of a trial court opinion has complicated our review. Nonetheless,
we decline to remand. See, e.g., Commonwealth v. Baker, 72 A.3d 652,
662 n.9 (Pa. Super. 2013) (stating that “in the interest of judicial economy,
we need not remand the case for the trial court to” file an opinion addressing
appellant’s discretionary sentencing claim); Commonwealth v. Hood, 872
A.2d 175, 178 (Pa. Super. 2005) (holding that although the “Rules of Appellate
Procedure make the filing of a 1925(a) opinion mandatory,” the “lack of a Rule
1925(a) opinion is not always fatal to our review, because we can look to the
record to ascertain the reasons for the order.”).

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B. Were the guilty verdicts for aggravated assault and PIC against
the weight of the evidence, as the evidence was that Appellant
was the victim of an assault and used justified force against his
assailant?

C. Did the sentencing court abuse discretionary aspects of
sentencing by entering an excessive sentence that was more
than necessary to protect the public, vindicate the victim,
rehabilitate the Appellant and did not adequately consider the
Appellant’s great remorse?

Appellant’s Brief at 5 (reordered).

Sufficiency

Appellant asserts the Commonwealth failed to present sufficient

evidence for the jury to convict him of aggravated assault and PIC. See id.

at 25-27. According to Appellant, the Commonwealth failed to meet its burden

of disproving his claim that he shot Smith in self-defense. Id. at 26.

Appellants states, “because Appellant acted in justified self-defense, the intent

element for aggravated assault and PIC were [sic] not proven.” Id.

The Commonwealth counters that it disproved Appellant’s claim of self-

defense and presented evidence of the elements of aggravated assault and

PIC beyond a reasonable doubt. See Commonwealth Brief at 14-16.

According to the Commonwealth,

the evidence established [Appellant] initiated the violence, first
with his fists and then by throwing [Smith] onto a glass table. It
was [Appellant] who then pulled out a gun and introduced it into
the affray. [Appellant] was the only person in possession of a
deadly weapon when he shot the unarmed [victim] seven times
as he was trying to flee back into his house to escape [Appellant’s]
gunfire. [Appellant] continued to shoot into the house even after
[Smith] entered it, despite [Appellant’s] knowledge that children
were present inside. Once [Appellant] gained control of the only

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firearm on the premises, and especially once Mr. Smith began to
move away from [Appellant] and towards the house, [Appellant]
could have had no conceivable belief, reasonable or not, that he
was in imminent danger or that he was justified in firing seven
shots at Mr. Smith.

Id. at 16 (citations omitted).

We evaluate Appellant’s sufficiency claim mindful of the following:

The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. Finally, the finder of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.

Commonwealth v. Jones, 271 A.3d 452, 458 (Pa. Super. 2021) (citations

and ellipses omitted).

With respect to aggravated assault, the Crimes Code provides,

A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value
of human life;

(2) attempts to cause or intentionally, knowingly or recklessly
causes serious bodily injury to any of the officers, agents,
employees or other persons enumerated in subsection (c)
or to an employee of an agency, company or other entity

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engaged in public transportation, while in the performance
of duty….

18 Pa.C.S.A. § 2702(a)(1), (2).11

“Serious Bodily injury” is defined as “[b]odily injury which creates a

substantial risk of death or which causes serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.”

Id. § 2301. The Commonwealth may establish intent to cause serious bodily

injury by circumstantial evidence, and a jury “may infer intent from attendant

circumstances or the defendant’s acts or conduct.” Commonwealth v.

Holley, 945 A.2d 241, 247 (Pa. Super. 2008) (citation omitted). A jury may

infer intent to cause serious bodily injury when the defendant fires a gun.

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super. 2005) (en

banc).

As to PIC, a “person commits a misdemeanor of the first degree if he

possesses any instrument of crime with intent to employ it criminally.” 18

Pa.C.S.A. § 907(a); see also id. § 907(d) (defining “instrument of crime”).

Use of force 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.A. § 505(a); see also

id. § 501 (defining unlawful force). When a defendant employs deadly force,

____________________________________________

11The Commonwealth charged Appellant under Section 2702(a) generally,
which includes multiple subsections. 18 Pa.C.S.A. § 2702(a)(1)-(9). It is
undisputed that 2702(a)(1) and (2) are the pertinent subsections in this case.

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the elements of a claim of self-defense are that the defendant (1) “reasonably

believed” deadly force was necessary to protect against “death or serious

bodily injury”; (2) was “free from fault in provoking” the use of force against

him; and (3) “did not violate any duty to retreat.” Commonwealth v.

Mouzon, 53 A.3d 738, 740 (Pa. 2012) (citation omitted). The Commonwealth

has the burden of disproving a claim of self-defense beyond a reasonable

doubt by establishing that at least one of the three above-mentioned elements

is absent. Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1124

(Pa. 2012).

This Court has stated:

[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. [T]his 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.”

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (citations,

emphasis, brackets and some quotation marks omitted).

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 jury’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 [victim] 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

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any source beyond a reasonable doubt, a jury is not
required to believe the testimony of the defendant who
raises the claim.

Id. at 788 (emphasis added; citations and quotation marks omitted); see

also Jones, 271 A.3d at 458 (“The finder of fact is not required to believe the

defendant’s testimony that he thought that he was in imminent danger and

acted in self-defense.”).

Instantly, we underscore Smith’s testimony and transcribed statement

he gave police from his hospital bed three days after the shooting. See N.T.,

6/7/22, at 45-51; see also id. at 24 (Smith repeatedly testifying he could not

remember the events of May 13, 2017), and id. at 56 (Smith stating he did

not want to testify and was appearing due to a prosecution subpoena). Smith

confirmed he gave a police statement indicating the dispute with Appellant

began when Derry called Smith and relayed that Appellant was at the house

arguing with Derry and her brother. Id. at 46, 48. Smith went home and

confronted Appellant. Id. at 48-49; see also id. at 46. Smith engaged in a

verbal dispute with Appellant, and told Appellant “he should probably find

somewhere else to live.” Id. at 46; see also id. at 48 (Smith confirming the

dispute became physical when Smith “told [Appellant] to go.”). Smith stated

that Appellant became enraged and “snapped out on [Smith] and [] sucker

punched” Smith. Id. at 46-47.

Smith also confirmed his police statement which described the

altercation:

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[Appellant] kept punching me and shoving me. We were in
[Appellant’s] room and he tried to throw me on the glass table. I
was able to find my bearings and next thing I knew pulled out my
gun. I got up as fast as I could and pushed the slide back on the
gun so [Appellant] couldn’t shoot me.

***

We started tussling [with] the gun and I heard the bang. I
don’t know if it hit anyone. I actually thought I was shot. Then
[Appellant] and his [paramour] tried to push me down the steps.
When I started falling I grabbed [Appellant] and pulled him down
with me. When we hit the bottom[, Appellant] and his [paramour]
were beating on me. My wife and kids were right there. When
[Appellant] started pulling me outside his [paramour] walked off.
We were still wrestling for the gun when we were going outside.
My hip was killing me from the fall and [Appellant] got the gun
from me.

***

All I remember is [Appellant] pointing the gun at me and
saying “you want to shoot me, motherfucker!” and he started
[firing the gun at] me. That was down on the sidewalk. When I
tried running up the steps[, Appellant] hit me like four times.
When I finally got back to the door[, Appellant] was still shooting
me. I remember bullets actually hitting the door. I was laying on
the floor bleeding and I asked [Derry] for water and a pillow. I
told [Derry] and her friends to call 9-1-1. I told [Derry] I loved
her and my kids.

Id. at 46-48.

At the close of evidence, the trial court instructed the jury on numerous

topics, including self-defense and the Commonwealth’s burden to disprove the

claim, id. at 27-32, as well as the elements of the charged crimes. Id. at 18-

27. During deliberations, the jury notified the trial court it had two questions,

both relating to self-defense. Id. at 38. The trial court answered the

questions as agreed by the parties. Id. at 38-47.

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The above facts are analogous to the facts presented in

Commonwealth v. Yanoff, 690 A.2d 260 (Pa. Super. 1997). In Yanoff, the

appellant raised a sufficiency challenge to his jury convictions of third-degree

murder and aggravated assault. Id. at 264. On August 2, 1994, the victim

and appellant had spent the day fishing. Id. at 262. This Court explained:

Appellant and the victim began to proceed back to [the
b]ridge [at which they had been fishing]. On the way, the victim
directed appellant to navigate down a narrow wooded lane and
park the car. Appellant [testified at trial and] claimed that he
parked the car and, as he was turning off the engine, the victim
began to strike him. Appellant stated that he exited the car and
was pursued by the victim. Appellant warned the victim that he
had a pistol. Appellant testified that the victim responded that he
was not afraid of firearms. Appellant then fired four rounds from
the weapon in the opposite direction from the victim’s voice.

Appellant testified that the victim then tackled him from
behind and began hitting him in the back of the neck with a can
of beer. According to Appellant, the victim began biting him on
the ear and face, including his nose. They both struggled over the
gun. The victim stood up and stated that he was going to smash
appellant’s face with a rock and kill him. The victim then
attempted to run away from Appellant. Appellant pointed the gun
toward the victim and fired four rounds into his back.

Id. at 263 (some capitalization modified; break omitted).

The appellant drove the victim to a hospital, where the victim died from

the gunshot wounds. Id. Pennsylvania State Police Trooper Mark Ponosby

interviewed appellant at the hospital. Id. Appellant waived his Miranda

rights and informed Trooper Ponosby

that the victim was approximately fifteen to twenty feet away
when he fired the gun, that he saw the victim fall down after these
shots were fired, and that appellant was in close proximity to his
car when he shot the victim.

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Id.

On appeal, the appellant argued his convictions were not supported by

sufficient evidence because the Commonwealth failed to disprove his claim of

self-defense. Id. at 264; see also id. (“[a]ppellant states that he received

multiple abrasions and bite marks on his face and body which indicated a

struggle with the victim.”). In rejecting this argument, we explained:

[Trooper] Ponosby testified that appellant told him the victim was
fifteen to twenty feet away from him when he fired the shots. In
addition, [Trooper] Ponosby testified that appellant stated the
victim was not running toward him but, rather, was
running away from [appellant] as he fired his gun. Finally,
Ponosby testified that at all times during the struggle and the
discharge of the weapon, appellant was near his car.

The Supreme Court has held that before deadly force may
be used in self-defense, outside a defendant’s dwelling, the
defendant has a duty to retreat, if the retreat can be performed
safely. Commonwealth v. Commander, 260 A.2d 773, 778
(Pa. 1970). In the present case, the evidence supports a
conclusion that appellant could have retreated to his car
while the victim was running away from him, and that he
could have made this retreat in complete safety. The duty
to retreat clearly applied, given the facts of this case. If appellant
had entered his car and began to flee, the victim, even if armed
with a rock, could not have posed a substantial threat to
appellant’s life to justify the use of deadly force.

The fact that appellant shot the victim in the back clearly
undermines his claim of self-defense. In a case dealing with self-
defense within a residence, we have concluded that where a
defendant has sole possession of a deadly weapon and
inflicts fatal blows upon the victim’s back, a claim of self-
defense will necessarily fail. Commonwealth v. Gelber, 594
A.2d 672, 677 (Pa. Super. 1991), allocatur denied, 605 A.2d
332 (Pa. 1992) (where appellant stabbed victim twenty times,
including fourteen times in the back, inflicted from behind,
[holding appellant’s] claim of self-defense lacked merit). Thus,

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we hold, upon viewing the evidence in the light most favorable to
the Commonwealth, that because the car was near appellant and
the victim was running away from appellant when appellant shot
him in the back, appellant’s argument that the Commonwealth
failed to disprove his claim that the killing was in self-defense
lacks merit.

Yanoff, 690 A.2d at 264-65 (emphasis added; citation and some

capitalization modified).

Applying Yanoff, and viewing the evidence of Smith’s shooting in the

light most favorable to the Commonwealth, we conclude the Commonwealth

(1) presented sufficient evidence to prove all elements of aggravated assault

and PIC beyond a reasonable doubt; and (2) met its burden of disproving

Appellant’s justification defense beyond a reasonable doubt. See Yanoff,

supra; Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008)

(finding evidence sufficient to disprove defendant’s self-defense claim where

the jury could reasonably conclude defendant was not acting in self-defense

when he shot the unarmed victim in the back while the victim was running

from defendant); see also Commonwealth v. Hall, 830 A.2d 537, 542-43

(Pa. 2003) (upholding appellant’s aggravated assault conviction where jury

rejected appellant’s testimony that the shooting was accidental, and

circumstantial evidence was adequate to prove appellant discharged a gun in

the direction of the victim).

The jury was free to disregard Appellant’s version of events, including

his claim that he acted in self-defense. Jones, supra (fact-finders are free

to believe all, part or none of the evidence). The jury chose to believe the

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Commonwealth’s evidence that Appellant introduced deadly force into the

altercation and shot Smith, who was unarmed, several times while Smith

attempted to return to the house. Appellant could have de-escalated the

conflict when he and Smith were outside, and he could have retreated from

the conflict. Instead, he shot Smith seven times as Smith retreated. Also,

Appellant’s flight and changing of clothes supports an inference of

consciousness of guilt.12 See Commonwealth v. Perez, 220 A.3d 1069,

1078 (Pa. Super. 2019) (en banc) (flight and concealment may constitute

circumstantial proof of consciousness of guilt). Accordingly, Appellant’s first

issue lacks merit.

Weight

Appellant next claims the trial court abused its discretion in denying his

PSM challenging the weight of the evidence. See Appellant’s Brief at 18-25.

To prevail on this challenge, Appellant must establish that the evidence

supporting his conviction is “so tenuous, vague, and uncertain that the verdict

shocks the conscience of the court.” Commonwealth v. Smith, 146 A.3d

257, 265 (Pa. Super. 2016) (citation omitted); see also Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa. 2013) (reversal is only appropriate “where the

facts and inferences disclose a palpable abuse of discretion”) (citation

omitted). “One of the least assailable reasons for granting or denying a new

____________________________________________

12 The trial court instructed the jury on consciousness of guilt. N.T., 6/9/22,
at 32-33.

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trial is the lower court’s conviction that the verdict was or was not against the

weight of evidence….” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa.

2014) (emphasis omitted). “The weight of the evidence is exclusively for the

finder of fact[,] who is free to believe all, none, or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). “A true weight of the

evidence challenge concedes that sufficient evidence exists to sustain the

verdict but questions which evidence is to be believed.” Commonwealth v.

Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (citation omitted).

We first address, sua sponte, whether Appellant’s weight claim is

reviewable, as the trial court never addressed the claim, and Appellant’s PSM

was denied by operation of law. This Court confronted this same scenario in

Commonwealth v. Upshur, 764 A.2d 69 (Pa. Super. 2000) (en banc):

After trial, appellant filed timely post-sentence motions which
included the issue of whether the verdict was against the weight
of the evidence. At this juncture, however, the trial judge was no
longer sitting as a judge and the post-trial motions were denied
by operation of law. Consequently, the trial judge never
addressed the weight claim presented by appellant. However, to
find this claim unreviewable, as the Commonwealth suggests,
would be unjust to appellant in that he has taken all measures
necessary to properly preserve this claim for our
consideration. Moreover, when a claim is denied by operation
of law, the effect of the denial operates in the same manner
as if the court had denied the motion itself. Accordingly, we
find that for these reasons, in conjunction with the fact that this
was a jury trial and all credibility determinations have been
made by the jury and not by the trial judge, we are not
precluded from addressing appellant’s weight claim. See
Commonwealth v. Cannon, … 563 A.2d 918, 923-24 (Pa. Super.
1989) (holding that post-trial motions for new trial and/or in arrest

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of judgment could be decided by judge other than trial judge
where trial judge was relieved of his duties so as to prevent him
from making determination on legal issues raised by defendants,
and where there was a jury trial such that all issues of credibility
and reasonable doubt were resolved by the jury).

Id. at 73 (emphasis added; footnote omitted; some capitalization modified).

Upshur is on-point. Id. Thus, we address the merits of Appellant’s weight

claim.

Appellant argues “the guilty verdicts were against the weight of the

evidence[,] as Appellant’s use of force was justifiable and the Commonwealth

did not successfully disprove this beyond a reasonable doubt.” Appellant’s

Brief at 22. Appellant claims the “Commonwealth witnesses were biased and

essentially covered up for” Smith, who, Appellant submits, “was the initial and

ongoing aggressor….” Id. According to Appellant, Smith’s “testimony was

highly unreliable.” Id. at 23 (citation omitted); see also id. at 24 (stating

Smith “did not recall material parts from the events of May 13, 2017”).

Appellant further states, “Derry did not see the actual shooting, and is

naturally biased in her husband’s favor.” Id. (citation omitted).

The Commonwealth argues the trial court did not abuse its discretion.

See Commonwealth Brief at 11-14. According to the Commonwealth,

Appellant’s

weight claim is based on an implicit assertion that it was shocking
that the trial judge did not credit [Appellant’s] weight claim and
his testimony. But such weighing of the evidence and deciding
which version of events to believe was a routine task that was
solely within the purview of the jury: “a jury is not required to
believe the testimony of the defendant who raises [a self-defense]

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J-S37034-23

claim.” Commonwealth v. Houser, 18 A.3d 1128, 1135[] ([Pa.]
2011) [(citation omitted).]

Commonwealth Brief at 12; see also id. at 14 (although Appellant “quibbles

with the alleged ‘bias’ of [Smith] and [Derry,] … [witness credibility] was …

solely for the jury to decide.”).

A jury is generally “free to believe some, all, or none of the

Commonwealth’s evidence” and “free to resolve inconsistencies or

discrepancies in the testimony in either party’s favor.” Commonwealth v.

Jacoby, 170 A.3d 1065, 1078 (Pa. 2017). Appellant improperly asks us to

substitute our judgment for that of the jury, and reassess the evidence and

credibility of the witnesses. See Commonwealth v. Koehler, 229 A.3d 915,

937 (Pa. 2020) (stating appellate courts are “not equipped to receive

evidence, assess that evidence, or make credibility determinations.”);

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007)

(emphasizing the factfinder is “free to believe all, part or none of the

evidence,” and appellate courts will not re-weigh evidence or substitute our

judgment for that of the factfinder (citation omitted)).

Lastly, it bears repeating that the jury acquitted Appellant of the

remaining charges, including the most serious charge of attempted murder.

Our review reveals no merit to Appellant’s challenge to the weight of the

evidence. See Houser, 18 A.3d at 1136 (stating, “By virtue of the verdict, it

is clear the jury did not find appellant’s self-serving self-defense testimony

credible.”).

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Discretionary Aspects of Sentencing

In his final issue, Appellant claims the trial court imposed an

unreasonably excessive sentence, and failed to adequately consider mitigating

factors. See Appellant’s Brief at 12-18. Appellant challenges the discretionary

aspects of his sentence, from which there is no absolute right to appeal.

Commonwealth v. Summers, 245 A.3d 686, 691 (Pa. Super. 2021). When

an appellant has preserved his discretionary sentencing claim by raising it in

a timely PSM,

[t]wo requirements must be met before we will review [the
challenge] on its merits. First, [pursuant to Pa.R.A.P. 2119(f),]
an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. Second, the appellant must
show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. That is,
that the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.
We examine an appellant’s Pa.R.A.P. 2119(f) statement to
determine whether a substantial question exists.

Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (brackets

and some citations omitted).

Appellant has provided a Rule 2119(f) statement. Appellant’s Brief at

12-14. Further, he presents a substantial question. See Commonwealth v.

Knox, 165 A.3d 925, 929-30 (Pa. Super. 2017) (“A claim that the trial court

focused exclusively on the seriousness of the crime while ignoring other,

mitigating circumstances, such as [the defendant’s] mental health history and

difficult childhood, raises a substantial question.”); Commonwealth v.

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Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (a substantial question is raised

when an appellant alleges the sentencing court imposed a sentence in the

aggravated range without adequately considering mitigating circumstances).

We review the merits of Appellant’s claim mindful that 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.”

Commonwealth v. Barnes, 167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en

banc) (citation omitted); but see also Yanoff, 690 A.2d at 267 (“while

sentencing courts are given wide latitude … such discretion is not

unfettered.”). This Court has explained:

The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.

Moury, 992 A.2d at 170 (citation omitted).

In addition, the Pennsylvania Supreme Court has emphasized that trial

courts

sentence[] flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (citations and

quotation marks omitted).

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The Sentencing Code states that a 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.A. § 9721(b).

A “sentencing court has broad discretion in choosing the range of permissible

confinements that best suit a particular defendant and the circumstances

surrounding his crime.” Hill, 66 A.3d at 370 (citation omitted). The court

“need not undertake a lengthy discourse for its reasons for imposing a

sentence or specifically reference the statute in question, but the record as a

whole must reflect the sentencing court’s consideration of the facts of the

crime and character of the offender.” Commonwealth v. Schutzues, 54

A.3d 86, 99 (Pa. Super. 2012) (citation omitted).

Appellant claims the trial court abused its discretion by imposing an

aggravated-range sentence that failed to account for mitigating

circumstances. See Appellant’s Brief at 15-18. According to Appellant, his

sentence is

excessive, [and] more than necessary to protect the public and
vindicate [Smith], because Appellant had a PRS of “0” and enjoys
familial and community support. Additionally, the excessive
sentence failed to consider that Appellant suffered greatly as a
child due to a broken family and periods of homelessness.

Id. at 17 (citation omitted); see also id. at 18 (asserting the sentencing court

disregarded that Appellant “is the true victim and he was essentially convicted

for … [using] justified force in his defense.”). Appellant also claims his

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sentence “was more than necessary to address rehabilitative needs and

Appellant’s potential for rehabilitation.” Id. at 17. Appellant further

references his remorse. Id. at 18. Thus, Appellant maintains the trial court

should have sentenced him in the mitigated range of the guidelines. Id.

To the contrary, the Commonwealth argues the trial court acted properly

and within its discretion. The Commonwealth states,

[Appellant] points repeatedly to his [PRS] of zero as evidence that
somehow alone proves his sentence was excessive. Brief for
Appellant [at] 17. However, and as the trial court recognized,
[Appellant’s] formal [PRS] was misleading because it did not
reflect his numerous arrests and probationary placements as a
juvenile and adult. It is well settled that “a court may consider a
defendant’s prior arrests which did not result in convictions, as
long as the court recognizes the defendant has not been convicted
of the charges.” Commonwealth v. Johnson, 481 A.2d 1212,
1214 (Pa. Super. 1984). As such, the [sentencing] court did not
abuse its discretion by fully accounting for [Appellant’s] criminal
history at sentencing, while explicitly acknowledging that none of
the charges had led to formal convictions.

Commonwealth Brief at 8 (footnote omitted).

At sentencing, the trial court stated it had considered the PSI, as well

as “the defense’s sentencing documents, including several letters from people

who know [Appellant], and are speaking in support of him in their letters.”

N.T., 9/6/22, at 3. The trial court confirmed Appellant’s PRS was zero. Id.

at 3-4. Further, the trial court stated it had considered the applicable

sentencing “guideline calculation.” Id. at 5.

The trial court also heard extensive argument from trial counsel, who

submitted that Appellant shooting Smith was “aberrant,” and emphasized that

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Appellant was also shot during the altercation. Id. at 7-9. Trial counsel

referenced mitigating information in the PSI, including Appellant’s difficult

childhood. Id. at 9. Trial counsel further emphasized that Smith was the

owner of the gun involved in the fray. Id. at 11-12. Trial counsel concluded,

“I would ask the [c]ourt to consider that in this case a standard-range

sentence would be appropriate.” Id. at 12.

The trial court also heard from Appellant’s mother, Ms. Harris, who

relayed that Appellant had a difficult childhood, untreated mental health

issues, and a good character. Id. at 18-23.

Appellant addressed the court next, stating that he “accept[ed] the part

I played in” the shooting. Id. at 23. However, Appellant reiterated that he

shot Smith in self-defense. Id. at 24-25. Appellant stated, “It is not like I

shot [Smith] first. If he never shot me, I could never shoot, because I never

had a gun to shoot him with.” Id. at 25.

The trial court then detailed Appellant’s criminal history:

[I]n 2004, [Appellant] was charged as a juvenile with
resisting arrest and disorderly conduct. …

***

[] [Appellant] was adjudicated delinquent [of resisting
arrest and disorderly conduct] and received probation at that
time. In 2006, [Appellant] was charged with criminal conspiracy,
simple assault, and [recklessly endangering another person].
Again, a crime of violence against someone else. …

And then 2006, [Appellant] was adjudicated delinquency
[sic] of criminal conspiracy and simple assault; and received a
term of probation.

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Subsequently, on … [July 26,] 2006, [Appellant] was
charged with terroristic threats; and that was withdrawn.

Then on December 1 of 2009, [Appellant] was charged with
aggravated assault, robbery, and [v]iolation of [the] Uniform
Firearms Act, which indicated that he was charged with having a
gun. [Appellant] was found not guilty of those charges.

On [August 25,] 2010, [Appellant] was charged with
contraband, possession of a telecommunications device by an
inmate; [Appellant] was found guilty of that while in prison. And
[Appellant] was sentenced to six months [of] reporting probation.

On [May 14,] 2017, [Appellant] was charged with [the
charges] … in the current case; for which he was found guilty after
a trial by way of jury.

[Appellant] is also charged with, on February 25, 2021,
aggravated assault, simple assault, resisting arrest, and those
charges are pending, related to an altercation with police.

Maybe, to some people[] [Appellant] has been around,
including his mother and all those neighbors [who wrote
Appellant’s character letters], he is not a bad person. …

And I don’t know whether any member of [Appellant’s]
family was here when the video was played that showed
[Appellant], after being pushed out of the house, [go] back up the
steps, and [] shoot[] at [Smith] from behind, as [Smith] was
trying to run into the house for safety, while [Appellant] was
shooting him seven times.

And [Appellant] was shooting into an open door, knowing
that there were children inside [the house]. And today,
[Appellant] has expressed no remorse whatsoever for any of that.

Id. at 28-29; see also id. at 4 (trial court quoting PSI, which stated: “Based

upon his criminal history, [Appellant] is at a high risk for incurring future

offenses ….”). The trial court opined that Appellant’s pattern of criminal

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behavior “is not something that just happened in 2017. It [ha]s been the way

he has been living his life.” Id. at 30.

Because the trial court was informed by a thorough PSI, “it will be

presumed [the court] was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.” Commonwealth v. Conklin, 275 A.3d 1087, 1098 (Pa.

Super. 2022) (citation omitted). This Court has stated, “where the court has

been so informed, its discretion should not be disturbed.” Commonwealth

v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009).

Our review confirms that the trial court considered the relevant

sentencing factors, including mitigating circumstances, and properly explained

its reasons for imposing Appellant’s sentence. See Commonwealth v.

Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (stating appellate courts

“cannot re-weigh sentencing factors and impose our judgment in the place of

the sentencing court”). Notably, the sentencing court did not err by failing to

give weight to Appellant’s justification defense. Commonwealth v.

Reynolds, 835 A.2d 720, 735 (Pa. Super. 2003) (stating where jury did not

credit defendant’s justification defense, “self-defense could not have

reasonably been considered as a mitigating factor at sentencing.”). As the

trial court did not abuse its discretion, Appellant’s sentencing issue does not

merit relief.

Judgment of sentence affirmed.

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Date: 11/21/2023

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