Com. v. Shadding, A. ( 2017 )

J-S06027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANNETTE SHADDING
Appellant No. 948 EDA 2016
Appeal from the Judgment of Sentence March 1, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000097-2015
BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 28, 2017
Appellant, Annette Shadding, appeals from the judgment of sentence
of four years of probation, imposed March 1, 2016, following a bench trial
resulting in her conviction for simple assault and recklessly endangering
another person (“REAP”).1 We affirm.
We adopt the following statement of facts from the trial court’s
opinion, which in turn is supported by the record. See Trial Court Opinion
(TCO), 7/19/16, at 1-4. At some time in 2014, Appellant stored some of her
belongings in the home of Neshea Jackson. After some time passed, Ms.
Jackson contacted Appellant to request that she pick up the belongings.
Appellant was very angry during this phone call.
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1
18 Pa.C.S. § 2701(a), 2705.
*
Former Justice specially assigned to the Superior Court.
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On December 22, 2014, Appellant approached Ms. Jackson, who was
walking with her children. Ms. Jackson informed Appellant she could not
speak at that time. In response, Appellant hit Ms. Jackson with an
unidentified object in the left shoulder and the forehead. Ms. Jackson fell to
the ground, hitting her head and shoulder, and the two women began to
struggle. During the altercation Appellant “gnawed” on Ms. Jackson’s finger.
Ms. Jackson did not strike Appellant in return, but attempted to pull herself
up from the ground.
Police officers arrived and observed Ms. Jackson with visible injuries,
including a large knot on her head and “a cut.” 2 Ms. Jackson identified
Appellant as her assailant. Appellant lied to police officers about her
identity. Further, police officers observed Appellant had no visible injuries,
was not wearing an arm brace, and did not have her arm zipped into her
jacket. Ms. Jackson lost consciousness3 and was taken by ambulance to the
Hospital at the University of Pennsylvania, where she was diagnosed with a
broken shoulder and head trauma. As a result of her injuries, Ms. Jackson
underwent surgery and physical therapy.4
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2
The record does not indicate where Ms. Jackson was cut.
3
See Notes of Testimony (N.T.), 12/29/15, at 74.
4
The Commonwealth introduced medical records, including x-rays, as well
as photographs taken the night the incident occurred, to illustrate Ms.
Jackson’s injuries. See N.T., at 27-28, 29-32.
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Appellant was arrested and charged with aggravated assault,
possession of an instrument of crime,5 simple assault, and REAP. The
matter proceeded to trial.
At trial, Appellant testified that in August 2009, she had been in an
automobile accident and injured her arm. As a result, she no longer had full
use of that arm and wore a brace, which she had zipped into her jacket.
According to Appellant, Ms. Jackson instigated the fight by hitting her in the
back of the head. Appellant claimed that, as a result of the limited use of
her arm, she could not hit Ms. Jackson. She denied striking Ms. Jackson. As
a rebuttal to this testimony, counsel stipulated that Appellant had prior
convictions for crimen falsi, including retail theft and conspiracy.
Appellant was convicted of simple assault and recklessly endangering
another person, and she was acquitted of the remaining charges. On March
1, 2016, Appellant was sentenced to an aggregate term of four years of
probation.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court issued a responsive opinion.
Appellant raises the following issue for our review:
1. The trial court erred when it found [Appellant] guilty [of]
simple assault and related charges when the evidence was
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5
18 Pa.C.S. § 2702, 907.
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insufficient since self-defense was asserted and the
Commonwealth did not overcome its burden to rebut that the
facts did not establish self-defense or the force used was
excessive.
Appellant’s Brief at 6 (unnecessary capitalization omitted).
Appellant claims that the evidence was insufficient to sustain her
convictions because the Commonwealth did not overcome its burden to
rebut her self-defense claim. See Appellant’s Brief at 10. Appellant argues
that she was at a “disadvantage” when Ms. Jackson allegedly attacked her,
as her disabled arm was zipped up in her jacket. Id. Appellant contends
that her injuries were consistent with Ms. Jackson being an initial aggressor
and that she was engaging in self-defense. Id.
We review a challenge to the sufficiency of the evidence as follows.
In determining whether there was sufficient evidentiary support
for a jury’s finding [], the reviewing court inquires whether the
proofs, considered in the light most favorable to the
Commonwealth as a verdict winner, are sufficient to enable a
reasonable jury to find every element of the crime beyond a
reasonable doubt. The court bears in mind that: the
Commonwealth may sustain its burden by means of wholly
circumstantial evidence; the entire trial record should be
evaluated and all evidence received considered, whether or not
the trial court’s rulings thereon were correct; and the trier of
fact, while passing upon the credibility of witnesses and the
weight of the evidence, is free to believe all, part, or none of the
evidence.
Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations
omitted).
Force may only be used in self-defense when immediately necessary to
protect oneself. See 18 Pa.C.S. § 505(a). When confronted with non-
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deadly force, a defendant’s responding actions must not be excessive under
the circumstances. See Commonwealth v. Cutts, 421 A.2d 1172, 1173
(Pa. Super. 1980). Excessive force is not justifiable when repelling an attack
by an unarmed assailant. See Commonwealth v. Witherspoon, 730 A.2d
496, 499 (Pa. Super. 1999).
With regard to a claim of self-defense, the Commonwealth bears the
burden of disproving that defense beyond a reasonable doubt. See
Commonwealth v. Rivera, 983 A.2d 1211, 1221 (Pa. 2009). This burden
may not be sustained solely on the factfinder’s disbelief of the defendant’s
testimony. Id.Here, the evidence Appellant introduced that could potentially support
a claim of self-defense was solely based on her own testimony. She offered
no other evidence in support of this contention. Appellant claimed that Ms.
Jackson had attacked her and that her arm was in a brace and zipped into
her jacket during the altercation. Counsel stipulated to Appellant’s prior
convictions for crimen falsi for retail theft and conspiracy. See Pa.R.E. 609
(“For the purpose of attacking the credibility of any witness, evidence that
the witness has been convicted of a crime . . . must be admitted if it
involved dishonesty or false statement.”); see also Commonwealth v.
Howard, 823 A.2d 911, 913 n.2 (Pa. Super. 2003) (noting that retail theft
is crimen falsi and may be used to prove a lack of character for
truthfulness).
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As noted, supra, the burden may not be sustained solely on the
factfinder’s disbelief of the defendant’s testimony. Rivera, 983 A.2d at
1221. Accordingly, the Commonwealth introduced the testimony of Ms.
Jackson, who credibly testified that she was walking down the street with
her children and attempted to avoid interaction with Appellant. Ms. Jackson
testified that Appellant attacked her, striking her in the head with an
unidentified object, and that during the altercation, she did not strike
Appellant. Ms. Jackson required surgery for a broken shoulder and physical
therapy as a result of injuries inflicted upon her by Appellant. Medical
records and photographs corroborated this testimony.
Further, police officers testified that Appellant was not visibly injured
following the altercation and that her arm was neither in a sling nor zipped
into her jacket. In contrast, Ms. Jackson was visibly injured.
Accordingly, the Commonwealth introduced sufficient evidence to
disprove Appellant’s claim that she was acting in self-defense and had not
used excessive force. Witherspoon, 730 A.2d at 499. Based upon the
above, the evidence was sufficient for the jury to conclude that the
Commonwealth had disproved Appellant’s claim of self-defense beyond a
reasonable doubt. Rivera, 983 A.2d at 1211.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2017
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