Com. v. Tepper, F. ( 2020 )


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  • J-S69025-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    FRANK TEPPER                               :
    :
    Appellant               :   No. 1806 EDA 2017
    Appeal from the PCRA Order May 19, 2017,
    in the Court of Common Pleas of Philadelphia County,
    Criminal Division at No(s): CP-51-CR-0001877-2010.
    BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
    MEMORANDUM BY KUNSELMAN, J.:                             FILED APRIL 03, 2020
    Frank Tepper appeals from the order denying his first timely petition for
    relief filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-
    46. We affirm.
    This Court previously summarized the pertinent facts and procedural
    history as follows:
    On November 21, 2009, [Tepper] was hosting a family
    function at his house in Port Richmond. That same day, the
    victim, William Panas, and some of his friends were
    socializing outside a nearby building. Around 10:30 p.m., a
    fight erupted between the victim, the victim’s friends, and
    various people attending [Tepper’s] family function.
    [Tepper], an off-duty Philadelphia police officer, went
    outside with a firearm and attempted to disperse the crowd.
    The Commonwealth’s witnesses testified [Tepper] pointed
    his gun at them and said, “Back the fuck up.” [Tepper] then
    pointed the gun at the victim, who stated in response, “What
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-S69025-19
    are you fucking going to shoot me?” One witness testified
    that the victim said, “[Tepper] is not going to shoot anyone.”
    [Tepper] responded by shooting and killing the victim.
    Forensic evidence showed the victim’s clothing had no
    traces of lead residue, which indicated [Tepper’s] gun was
    at least three feet away from the victim’s body when
    [Tepper] fired his weapon.
    On February 23, 2012, following a five-day trial, a jury
    found [Tepper] guilty of first-degree murder, [possession of
    an instrument of crime, and recklessly endangering another
    person]. On April 4, 2012, the court sentenced [Tepper] to
    life imprisonment for the first-degree murder conviction,
    plus a concurrent term of one (1) to two (2) years’
    imprisonment for each of the lesser convictions. [Tepper]
    timely filed a post-sentence motion on April 9, 2012. On
    May 7, 2012, the court denied the post-sentence motion.
    Commonwealth v. Tepper, 
    105 A.3d 804
    (Pa. Super. 2014), unpublished
    memorandum at 1-2.
    Tepper filed a timely appeal to this Court in which he challenged the
    sufficiency and/or weight of the evidence supporting his convictions. On July
    29, 2014, we rejected these claims and affirmed Tepper’s judgment of
    sentence. 
    Tepper, supra
    . Tepper did not seek further review.
    On June 22, 2015, Tepper filed a pro se PCRA petition. On July 17,
    2015, newly retained counsel (current counsel) filed an amended petition, in
    which Tepper claimed that trial counsel was ineffective for failing to: 1) “ call
    any of a multitude of witnesses who has seen the incident, provided interviews
    to police, and proffered testimony that affirmed and bolstered that of other
    defense witnesses”; 2) file a motion for change of venue; and 3) request a
    competency hearing and evaluation of Tepper because he “was so heavily
    medicated that he could not meaningfully participate in his own defense and
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    be able to knowingly waive his right to testify.” See Amended PCRA Petition,
    7/17/15, at 2. The Commonwealth filed a motion to dismiss the amended
    petition on November 2, 2015.
    On September 22, 2016, without first seeking leave of court, Tepper’s
    counsel filed a supplemental PCRA petition. In this petition, Tepper raised the
    additional claim that trial counsel was ineffective “when he failed to play [for]
    the jury the radio tapes that were made to 911 dispatch on November 21,
    2009.” Supplemental PCRA petition, 9/22/16, at 2. Tepper claims “[t]hese
    calls would have [corroborated his] theory that he was being attacked.”
    Id. The Commonwealth
    filed a supplemental motion to dismiss on December 15,
    2016.
    On March 10, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of
    its intention to dismiss Tepper’s petition as meritless.1 Tepper filed a response
    on April 4, 2017. In this response, for the first time, Tepper raised multiple
    additional claims including this assertion that trial counsel was ineffective for
    failing to: 1) object to the trial court’s instruction that the jury could
    “infer/presume intent from the proven fact that a deadly weapon was used on
    a vital part of the human body”; and 2) “prepare and assert a defense that,
    acting as a police officer, [Tepper] had no ‘duty to retreat.’” See Response to
    Dismissal of PCRA under Rule 907, 4/4/17, at unnumbered 4-5.
    ____________________________________________
    1   The PCRA court’s Rule 907 notice does not appear in the certified record.
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    By order entered May 19, 2017, the PCRA court denied Tepper’s PCRA
    petition. This timely appeal followed.2
    Although the PCRA court did not require Tepper to file a Pa.R.A.P. 1925(b)
    statement, the court filed a Rule 1925(a) opinion.
    Tepper raises the following six issues:
    A. Whether [] trial counsel was ineffective for failing to call
    multiple witnesses who had witnessed the incident,
    provided interviews to police, and proffered testimony
    that confirmed the account of other defense witnesses?
    B. Whether [] trial counsel was ineffective for failing to file
    a motion for change of venue, due to the extensive
    negative publicity he had received in the Philadelphia
    area and resulting in [Tepper] being subject to undue
    [prejudice] during the selection of his jury?
    C. Whether [] trial counsel was ineffective for failing to play
    the 911 tapes to the jury which would have demonstrated
    that [Tepper] was being attacked and in fear of his
    safety?
    D. Whether [Tepper] did not knowingly waive his right to
    testify where [he] was so heavily medicated that he could
    not meaningfully participate in his own defense?
    E. Whether [Tepper] was deprived of due process where the
    trial judge instructed the jury that they can infer or
    presume intent from the proven fact that a deadly
    weapon was used on a vital part of the human body. The
    ____________________________________________
    2 Although Tepper filed his appeal with this Court on June 14, 2017, the
    certified record was not promptly forwarded to this Court.         After our
    Prothontary issued two notices to the lower court regarding its delinquency,
    we received the certified record on March 26, 2019. That same day, we issued
    the briefing schedule for the parties.
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    jury was also instructed that if it found “intent,” then
    malice was also established?
    F. Whether [] trial counsel was ineffective for failing to
    prepare and assert a defense that, acting as a police
    officer, [Tepper] had no duty to retreat?
    Tepper’s Brief at 8.3
    Our scope and standard of review is well settled:
    In PCRA appeals, our scope of review is limited to the
    findings of the PCRA court and the evidence on the record
    of the PCRA court's hearing, viewed in the light most
    favorable to the prevailing party. Because most PCRA
    appeals involve questions of fact and law, we employ a
    mixed standard of review. We defer to the PCRA court's
    factual findings and credibility determinations supported by
    the record. In contrast, we review the PCRA court's legal
    conclusions de novo.
    Commonwealth v. Reyes-Rodriguez, 
    111 A.3d 775
    , 779 (Pa. Super. 2015)
    (citations omitted).
    The PCRA court dismissed Tepper’s PCRA petition without first holding
    an evidentiary hearing. As this Court has summarized:
    When the PCRA court has dismissed a petitioner’s PCRA
    petition without an evidentiary hearing, we review the PCRA
    court’s decision for an abuse of discretion. Commonwealth v.
    Roney, 
    79 A.2d 595
    , 604 (Pa. 2013). The PCRA court has
    discretion to dismiss a petition without a hearing when the court
    is satisfied that there are no genuine issues concerning any
    material fact, the defendant is not entitled to post-conviction
    collateral relief, and no legitimate purpose would be served by
    ____________________________________________
    3 On October 28, 2019, this Court granted Tepper leave to file an amended
    brief. A review of the issues stated in this brief, with one noticeable exception,
    see infra, raises the same claims albeit phrased somewhat differently. We
    cite Tepper’s original brief, because these issues, as stated, were addressed
    by the PCRA court in its Rule 1925(a) opinion.
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    further proceedings.
    Id. To obtain
    a reversal of a PCRA court’s
    decision to dismiss a petition without a hearing, an appellant must
    show that he raised a genuine issue of material fact which, if
    resolved in his favor, would have entitled him to relief, or that the
    court otherwise abused its discretion in denying a hearing.
    Commonwealth v. Blakeney, 
    108 A.3d 739
    , 750 (Pa. 2014).
    All of Tepper’s claims on appeal allege the ineffectiveness of trial
    counsel.4 To obtain relief under the PCRA premised on a claim that counsel
    was ineffective, a petitioner must establish by a preponderance of the
    evidence that counsel's ineffectiveness so undermined the truth-determining
    process that no reliable adjudication of guilt or innocence could have taken
    place.      Commonwealth v. Johnson, 
    966 A.2d 523
    , 532 (Pa. 2009).
    “Generally, counsel’s performance is presumed to be constitutionally
    adequate, and counsel will only be deemed ineffective upon a sufficient
    showing by the petitioner.”
    Id. This requires
    the petitioner to demonstrate
    that:     (1) the underlying claim is of arguable merit; (2) counsel had no
    reasonable strategic basis for his or her action or inaction; and (3) petitioner
    was prejudiced by counsel's act or omission.
    Id. at 533.
    In his first issue, Tepper asserts that trial counsel was ineffective for
    failing to present “critical witnesses who would have changed the outcome of
    the trial.” Tepper’s Brief at 13. Within his brief, Tepper then cites to multiple
    ____________________________________________
    4 Although Tepper’s fourth issue is not framed in such terms, his supporting
    argument challenges the effectiveness of trial counsel.
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    witnesses who, based on their statements to police, should have been called
    in addition to the five witnesses that trial counsel called in Tepper’s defense
    at trial. See
    id. at 13-16.
    This Court has reiterated a PCRA petitioner’s burden when raising this
    claim:
    When raising a claim of ineffectiveness for failure to call
    a potential witness, a petitioner satisfies the performance
    and prejudice requirements of the [Strickland v.
    Washington, 
    466 U.S. 668
    (1984)] test by establishing
    that: (1) the witness existed; 2) the witness was available
    to testify for the defense; (3) counsel know of, or should
    have known of, the existence of the witness; (4) the witness
    was willing to testify for the defense; and (5) the absence
    of the testimony of the witness was so prejudicial as to have
    denied the defendant a fair trial[.]
    Commonwealth v. Matias, 
    63 A.3d 807
    , 810-11 (quoting Commonwealth
    v. Sneed, 
    45 A.3d 1096
    , 1108-09 (Pa. 2012). “To demonstrate Strickland
    prejudice, a petitioner must show how the uncalled witnesses’ testimony
    would have been beneficial under the circumstances of the case.” Finally, “[a]
    failure to call a witness is not per se ineffective assistance of counsel for such
    decision usually involves matters of trial strategy.”
    Id. Here, the
    PCRA court determined that Tepper did not meet this burden:
    Trial counsel called four witnesses to testify that the
    victim was the aggressor. However, [Tepper] claims trial
    counsel was ineffective for not calling six additional
    witnesses to testify to the same information. The PCRA
    requires that [Tepper] present upfront certifications of any
    witness’s testimony. (42 Pa.C.S.A. § 9545(d)(1)). [Tepper]
    did not provide this. Instead, [Tepper] presents potential
    witness statements to police as proof that they would have
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    been available and willing to testify. [Tepper] has not
    provided evidence as to how the absence of [their]
    testimony prejudiced [him]. [Tepper] had four witnesses
    give similar testimony at trial, therefore there is no
    reasonable likelihood that the additional testimony would
    change the outcome of the trial.        Additional witness
    testimony, would be nothing more than cumulative evidence
    which is insufficient for a finding of ineffectiveness.
    Commonwealth v. Showers, 
    782 A.2d 1010
    , 1022 (Pa.
    Super. 2001). Accordingly, [Tepper’s] claim lacks merit.
    PCRA Court Opinion, 3/25/19, at 4-5.5
    Our review of Tepper’s PCRA petition supports PCRA court’s conclusion
    that Tepper failed to establish one or more of the Matias criteria. Tepper’s
    claim that he “clearly satisfied” the Matias test is refuted by our review of the
    record.     Tepper’s Brief at 16.       Additionally, Tepper’s bare assertion that
    “[t]here is no evidence that [these witnesses] weren’t available and willing to
    testify,”
    id., ignores his
    burden to prove these facts. Thus, Tepper’s first issue
    fails.
    In his second issue, Tepper claims that trial counsel was ineffective for
    failing to file a motion for change of venue given the extensive negative
    publicity his case received in the Philadelphia area that, in turn, subjected him
    to undue prejudice during the selection of his jury. He then cites seven news
    articles to support his to support his assertion that the “coverage was
    relentless and negative.” Tepper’s Brief at 18.
    ____________________________________________
    5 Tepper also called a fifth witness, Lylene Russell, who allegedly viewed the
    incident from her apartment window and whose husband called 911.
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    “The mere existence of pretrial publicity does not warrant a presumption
    of prejudice.” Commonwealth v. Chambers, 
    685 A.2d 96
    , 103 (Pa. 1996)
    (citations omitted).   Our Supreme Court has explained the deference that
    should be given to the trial court’s discretion in granting or denying a motion
    for change of venue:
    We have recognized that the trial court is in the best
    position to assess the atmosphere of the community and to
    judge the necessity of any requested change. In reviewing
    the trial court decision not to grant a change of venue the
    focus of our inquiry is whether any juror formed a fixed
    opinion of the defendant’s guilt or innocence due to the
    pretrial publicity.
    A change in venue is compelled whenever a trial court
    concludes a fair and impartial jury cannot be selected from
    the residents of the county where the crime occurred. As a
    general rule, for a defendant to be entitled to a change of
    venue because of pretrial publicity, he or she must show
    that the publicity caused prejudice by preventing the
    empaneling of an impartial jury.
    Commonwealth v. Briggs, 
    12 A.3d 291
    , 313 (Pa. 2011) (citations omitted).
    The PCRA court found this claim lacked merit because Tepper failed to
    establish that the pretrial publicity adversely prejudiced him during jury
    selection:
    In his instant petition, [Tepper] does nothing more than
    cite to negative pre-trial publicity in order to prove a change
    of venue was necessary. [Tepper] did not use the notes of
    testimony of the voir dire, nor did [he] cite anything other
    than a few news articles found on the internet.
    Moreover, the transcript of the beginning of the trial
    shows that this Court did colloquy the jury about pretrial
    publicity and ensured that they had not read, watched or
    listened to anything about the case before coming to court.
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    Furthermore, the articles cited by [Tepper] were published
    in the time period between November 2009 until March
    2010.     [Tepper’s] trial took place in February 2012.
    [Tepper] does not account for the “cooling off” period that
    took place between news coverage and trial, which is
    sufficient to cure any potential prejudice of negative news
    coverage. Accordingly, [Tepper’s] claim lacks merit.
    PCRA Court Opinion, 3/25/19, at 5-6 (citations omitted).
    Our review of the record supports the PCRA court’s conclusion. Initially,
    we agree with the Commonwealth that Tepper’s failure to provide the
    transcript from his voir dire of potential jurors renders Tepper’s ability to
    establish his ineffectiveness claim impossible. See, e.g., Commonwealth v.
    Houck, 
    102 A.3d 443
    , 456 (Pa. Super. 2014) (finding claim waived when the
    defendant had not made the transcript of the proceedings at issue part of the
    certified record). Without this transcript, we are unable to review the PCRA
    court’s determination that Tepper was not prejudiced by the pretrial publicity.
    In his supplemental brief, Tepper makes the bare assertion that the
    PCRA court’s finding regarding a “cooling off” period, did “not account that
    before trial, the “cooling off period” was reheated to a boiling point.” Tepper’s
    Supplemental Brief at 17.      Tepper proffers no evidence to support this
    statement. Notwithstanding this shortcoming, we note that, without the voir
    dire transcript, even if true, Tepper cannot establish that his ineffectiveness
    claim warrants relief.   See 
    Briggs, 12 A.3d at 314
    (stating that, when
    reviewing whether an adequate “cooling off” period occurred, “[n]ormally,
    what prospective jurors tell us about their ability to be impartial will be a
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    reliable guide to whether the publicity is so fresh in their minds that it has
    removed their ability to be objective”). Thus, Tepper’s second issue fails.
    In his third issue, Tepper claims that trial counsel was ineffective for
    failing to play a 911 tape at trial in which the caller reports, “there’s a fight at
    the corner of Edgemont and Elkhart,” and states that “some kid was waiving
    [sic] a gun around and we just heard a shot.” Tepper’s Brief at 20. Tepper
    states that the contents of this call corroborated “witness statements and
    [Tepper’s] belief that [the victim] did have a gun and was reaching for his
    waist.”
    Id. Tepper then
    cites his own 911 call in which he informed the
    dispatcher of the location of the shooting and that he “discharged [his] firearm
    at someone after I was assaulted.”
    Id. According to
    Tepper, “there was no
    reasonable trial strategy for not playing these 911 dispatch calls” because
    “[b]oth calls demonstrated that [he] believed that he was acting in self-
    defense when he discharged a single shot” at the victim.
    Id. The PCRA
    court found that Tepper could not establish this claim of
    ineffectiveness:
    [Tepper] called five witnesses at trial, none of whom claimed
    that the victim (or any of the other young people) was
    [waving] a gun around. The only witness who testified to
    witnessing the shooting itself testified that the victim did
    nothing more than argue with [Tepper] just before [Tepper]
    shot him. Even the two new witnesses [Tepper] proffered
    in his first amended petition only claimed that the victim
    reached for his waistband, not that he pulled out or [waved]
    a gun. Thus, counsel would not likely have secured an
    acquittal if he introduced a statement that lacked
    corroboration and would contradict his own witness. As for
    the second tape, this was actually played and discussed at
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    trial. (N.T. 2/21/12, 82, 107). Accordingly, this claim lacks
    merit.
    PCRA Court Opinion, 3/25/19, at 7.
    Our review of the record supports the PCRA Court’s conclusion.6 Claims
    of trial counsel’s ineffectiveness are not self-proving and therefore cannot be
    raised in a vacuum. See generally, Commonwealth v. Pettus, 
    424 A.2d 1332
    (Pa. 1981). Where the facts do not appear of record, the defendant
    must identify “any affidavits, documents, and other evidence showing such
    facts[.]” Pa.R.Crim.P. 902(A)(12)(b); 
    Pettus, 424 A.2d at 1335
    (explaining
    that when a defendant raises ineffectiveness he or she must set forth an offer
    to prove at an appropriate hearing facts upon which a reviewing court can
    conclude that trial counsel may have been ineffective). Tepper made no such
    proffer. This is especially true as the evidence Tepper introduced at trial was
    inconsistent with the 911 call.
    Additionally, our review of the record does establish that Tepper’s 911
    call was played multiple times at trial.           Although Tepper claims in his
    supplemental brief that the prosecution only played a “cherry picked
    ____________________________________________
    6 The Commonwealth asserts that this claim is waived because it was raised
    for the first time by Tepper in an unauthorized supplemental PCRA petition,
    and because Tepper failed to provide any certification from trial counsel to
    support the claim. See Commonwealth’s Brief at 21. We decline to find
    waiver, since the PCRA court addressed the claim and our review supports the
    court’s determination that Tepper failed to meet his burden of establishing his
    ineffective assistance claim.
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    Commonwealth excerpt” of his 911 call, Tepper’s Supplemental Brief at 19,
    he does not proffer any additional content of the call that would have benefited
    him at trial. Tepper’s third issue warrants no relief.
    In his fourth issue, Tepper asserts, “trial counsel failed to request a
    competency hearing and evaluation for [him] despite signs that indicated such
    a hearing was necessary.” Tepper’s Brief at 22. He then argues that, “[a]s a
    result, [his] waiver of his right to testify was not made knowingly.”
    Id. According to
    Tepper, “[t]rial counsel was aware of [his] psychological
    condition as well as the medication that he was taking but made no effort to
    ascertain whether [he] was making a knowing and clear-headed decision [not
    to testify].”
    Id. at 23.7
    “A defendant is presumed to be competent to stand trial, and the burden
    is on the defendant to prove by a preponderance of the evidence that he was
    incompetent to do so.” 
    Blakeney, 108 A.3d at 752
    . “Competency to stand
    trial is measured by the relationship between counsel and client.          To be
    deemed competent, the defendant needs to have the ability to consult with
    ____________________________________________
    7 When phrasing this issue in his supplemental brief, Tepper makes no mention
    of his medical condition, but rather changes his argument to one in which trial
    counsel dissuaded him from testifying because he could be impeached by his
    history of misconduct while employed as a police officer. See Tepper’s
    Supplemental Brief at 20-21. Because this claim was never raised in his PCRA
    petition, it was not addressed by the PCRA court. As this new theory of
    ineffectiveness is being raised for the first time on appeal, we will not consider
    it. See generally, Pa.R.A.P. 302(a).
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    counsel with a reasonable degree of understanding, in order to participate in
    his defense, and he must be able to understand the nature or object of the
    proceedings against him.”
    Id. Here, the
    PCRA court found that the record refuted Tepper’s claim that
    he was unable to make a knowing waiver of his right to testify. The court
    explained:
    [Tepper] claims that he was heavily medicated during his
    trial. [He] also claims that he was suffering from Post-
    Traumatic Stress Disorder (PTSD) as a result of his
    involvement in several shootings and violent altercations
    that occurred during his employment as a police officer, as
    well as from being a victim in a violent robbery in 2007.
    However, [Tepper] is misguided.
    ***
    [Tepper] does not address these issues in his instant
    petition, and nothing on the record would suggest [he] was
    incompetent. In fact, this Court conducted a colloquy of
    [Tepper] in determining that he was voluntarily waiving his
    right to testify. [Tepper] testified that he was not under the
    influence of drugs or alcohol, and was not suffering from a
    mental illness. Accordingly, [Tepper’s] claim lacks merit.
    PCRA Court Opinion, 3/25/19, at 6-7 (citations omitted).
    Our review of the record supports the PCRA court’s conclusion that there
    is no support for Tepper’s claim that he was incompetent to stand trial. Thus,
    his fourth issue, in which he claims that trial counsel was ineffective for failing
    to request a psychological evaluation, fails, and trial counsel cannot be
    deemed ineffective for failing to pursue this meritless claim.                See
    Commonwealth v. Loner, 
    836 A.2d 125
    , 132 (Pa. Super. 2003) (en banc).
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    Tepper raised his fifth and sixth issue for the first time in his response
    to the PCRA court’s Rule 907 notice. As such, the PCRA court did not address
    them.       Thus, the claims were not properly preserved below.              See
    Commonwealth v. Rykard, 
    55 A.3d 1177
    , 1192 (Pa. Super. 2012)
    (explaining that a PCRA petitioner must request leave to amend his petition in
    his Rule 907 response in order to raise new trial counsel ineffectiveness
    claims).8
    In sum, because the PCRA court correctly concluded that all of Tepper’s
    ineffective assistance of counsel claims lacked merit, the court properly denied
    his PCRA petition without a hearing. We therefore affirm its order denying
    Tepper post-conviction relief.
    Order affirmed.
    ____________________________________________
    8 Even were we to address these issues we would find them to be without
    merit. As to Tepper’s fifth issue, well-settled precedents recognize the use of
    the inference of which Tepper complains. See, e.g., Commonwealth v.
    Hall, 
    701 A.2d 190
    , 196 (Pa. 1997) (holding both malice and specific intent
    to kill may be inferred from the use of a deadly weapon on a vital part of the
    victim’s body). As to Tepper’s sixth issue, even if Tepper had no duty to
    retreat, the Commonwealth adequately disproved his claim of self-defense by
    presenting evidence that Tepper was the aggressor and did not reasonably
    believe he was in imminent danger of death or seriously bodily injury. See
    generally 42 Pa.C.S.A. § 505.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/3/20
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