Com. v. Watkins, S. ( 2020 )

J-S20005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT TIMOTHY WATKINS :
:
Appellant : No. 1726 EDA 2019
Appeal from the Judgment of Sentence Entered December 20, 2018
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000798-2016
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 18, 2020
Appellant, Scott Timothy Watkins, appeals nunc pro tunc from the
judgment of sentence entered following his convictions of simple assault by
physical menace and harassment.1 We affirm.
The trial court thoroughly summarized the factual history of this case as
follows:
At approximately 8:30 P.M. on May 14, 2016, [Appellant]
and Lisa Watkins, his wife, arrived at Sunny Rest Resort, an eighty
to ninety-acre clothing optional resort located in Franklin and
Towamensing Townships, Carbon County, Pennsylvania, for the
opening weekend of the 2016 season. (N.T., 3/6/18, pp.40-41,
183; N.T., 3/8/18, p.41). During this first weekend of the season,
which is open to members only, members socialize with one
another and renew acquaintances. (N.T., 3/6/18, pp.47, 133;
N.T., 3/8/18, pp.38, 41).
____________________________________________
1 18 Pa.C.S. §§ 2701(a)(3) and 2709(a)(1).
J-S20005-20
The Resort employs private security who patrol the grounds
using golf carts. Their duties primarily are to assist members and
guests and to keep the peace. (N.T., 3/6/18, pp.40, 45, 47, 128,
133, 161). They are not allowed to carry weapons and they do
not enforce the law. (N.T., 3/6/18, pp.42-44; N.T., 3/8/18,
pp.109-110). On this particular date, Christopher Wean and Jason
Cerkan were working as security guards at the Resort. Each had
worked there for several years and were known by both
[Appellant] and his wife. (N.T., 3/6/18, pp.39, 46, 50, 57, 82-83,
128, 133, 135, 149-50, 154). In fact, [Appellant], who at one
time had also worked as a security guard at the Resort, helped
train and familiarize both Wean and Cerkan with their
responsibilities as a security guard. (N.T., 3/6/18, pp.40-41, 45-
46, 131, 156; N.T., 3/8/18, p.40).
At approximately 10:30 P.M. on May 14, 2016, as Wean and
Cerkan were making their rounds, they spotted [Appellant] and
his wife at an outdoor deck party. (N.T., 3/6/18, pp.48-49). Both
were intoxicated. (N.T., 3/6/18, pp.49-50, 134-35, 160, 181,
184, 187). Mrs. Watkins asked if they would give her a ride to
her trailer where she wanted to use the restroom and make
another drink for herself. (N.T., 3/6/18, pp.50, 55-56, 135-36;
N.T., 3/8/18, pp.49, 118-19). They agreed. At the Watkins’
trailer, located approximately fifty to a hundred yards from the
deck party, Mrs. Watkins invited both security guards to come
inside and offered them some candy. (N.T., 3/6/18, pp.56-57).
Wean and Cerkan were inside the trailer for approximately three
minutes and then went outside to wait for Mrs. Watkins before
returning her to the party. (N.T., 3/6/18, pp.56, 63, 138-39).
As the two were waiting outside, [Appellant] suddenly drove
up, parked his vehicle on the road in front of the trailer, slammed
the door of the vehicle shut, walked directly to the trailer - a
distance of approximately twenty to twenty-five feet, passing
Wean and Cerkan along the way and muttering something
indecipherable as he passed and entered the trailer abruptly,
slamming the door behind him. (N.T., 3/6/18, pp. 64-66, 77, 139-
141; N.T., 3/8/18, p.59). Both Wean and Cerkan testified that
[Appellant] was clearly upset at something. (N.T., 3/6/18, pp.66,
141).
Soon after [Appellant] entered the trailer, Wean and Cerkan
heard [Appellant] screaming at his wife and, through a window,
Wean saw [Appellant] strike his wife three times in the face.
-2-
J-S20005-20
(N.T., 3/6/18, pp.66-68). Wean told Cerkan what he saw and
Cerkan, unsure of what to do, walked up to the trailer door and
knocked. (N.T., 3/6/18, pp.68-69, 141-143). From inside the
trailer, [Appellant] yelled, “Are you F’n kidding me?” (N.T.,
3/6/18, pp.69, 143). Within seconds the door of the trailer flew
open and Wean watched as [Appellant] drew a loaded handgun
from his rear waistband and exited the trailer. (N.T., 3/6/18,
pp.69, 143, 151).1 As this was happening, Cerkan ran to the side
of the trailer and disappeared. (N.T., 3/6/18, pp.70, 143, 148,
152).
1 What later turned out to be a loaded magazine clip,
but which was unrecognizable by Wean at the time,
dropped to the ground as [Appellant] was drawing his
weapon and exiting the trailer. (N.T., 3/6/18, pp.69,
75, 147; N.T., 3/8/18, p.166). It is unclear whether
this magazine clip was intentionally removed from the
handgun by [Appellant] or accidentally became
dislodged as [Appellant] drew his weapon. (N.T.,
3/8/18, p.145). What is clear, is that a loaded round
was in the gun’s chamber when the gun was pointed
at Wean. (N.T., 3/6/18, pp.115-16, 182-83, 198,
215-17; N.T., 3/8/18, pp.166-67).
[Appellant] approached Wean with his pistol drawn and
pointed at Wean - his left hand cradling the gun from below and
the trigger finger of his right hand on the trigger. (N.T., 3/6/18,
pp.69-70, 88, 119; N.T., 3/8/18, pp.135, 171). In response,
Wean stepped backwards several steps. (N.T., 3/6/18, pp.69, 71,
76). When [Appellant] reached where Wean was standing,
approximately ten feet from the trailer, [Appellant] pressed the
barrel of the pistol against Wean’s left cheekbone, directly beneath
his eye. (N.T., 3/6/18, pp.69-71, 76-77, 88, 116). For
approximately a minute, the two stood facing one another without
speaking. (N.T., 3/6/18, p.71). [Appellant] then lowered his
weapon and told Wean to get out, at which point Wean slowly
backed away from [Appellant], got in the golf cart, and drove
away. (N.T., 3/6/18, p.72).
Wean testified that when the pistol was pressed against his
cheek, he thought he was going to die. (N.T., 3/6/18, pp.72,
102). Later that same night, after the police were called and
responded to the Resort, [Appellant’s] 40 caliber handgun was
recovered where he had placed it on an outside picnic table to the
-3-
J-S20005-20
left of the trailer without clearing or unloading the gun. (N.T.,
3/6/18, pp.32, 179, 192-93, 214-15; N.T., 3/8/18, pp.140-41,
151, 166, 172). One live round was found in the chamber,
confirming that the gun was loaded at the time it was pointed at
Wean. (N.T., 3/6/18, pp.182-83, 198, 215-17; N.T., 3/8/18,
pp.166-67).
At trial, [Appellant] testified on his own behalf. [Appellant]
did not dispute that he possessed and pointed his pistol at Wean
during the commission of this offense, however, [Appellant]
testified he did so in self-defense. [Appellant’s] testimony to
support this claim follows.
According to [Appellant], when twenty minutes had passed
and his wife, to whom he had been married for less than a year,
had not returned to the party after leaving with Wean and Cerkan,
he became concerned and decided to look for her at the trailer.
(N.T., 3/8/18, pp.36, 49-50, 119-20, 170). As he pulled up in
front of the trailer, [Appellant] claimed Wean and Cerkan were
just then exiting the trailer, that Cerkan ran to the side of the
trailer where he lost sight of him, and that Wean was walking in
his direction. (N.T., 3/8/18, pp.54-57, 122). [Appellant] testified
he walked directly from his vehicle to the trailer, that as he passed
Wean on the way, Wean said, “What’s up?”, and he responded,
“You tell me,” and that as he walked past Wean, he smelled an
odor of marijuana. (N.T., 3/8/18, pp.57-58, 75, 123-24, 126).
Once inside the trailer, [Appellant] testified he saw his wife
stagger from the bathroom and fall to the floor. (N.T., 3/8/18,
pp.60-61, 81-82, 128). According to [Appellant], his wife was
more intoxicated than when she had left the party, and he
believed she had been drugged. (N.T., 3/8/18, pp.60, 64, 74-75,
80-32, 128). [Appellant] admitted yelling “What the F’s going on”
to his wife and anyone who might be standing outside the trailer.
(N.T., 3/8/18, pp.128-29, 146-47). It was at this point,
[Appellant] claimed, he opened the door to make sure Wean and
Cerkan had left the property. (N.T., 3/8/18, pp.82-84). When he
did so, he saw Wean standing by the golf cart near the street,
approximately twenty-five feet away, and yelled several times for
him to “Get the ‘F’ out of there.” (N.T., 3/8/18, pp.59, 84-85,
129-30, 132). At first Wean began to walk away, down the street,
but he then turned and started walking towards [Appellant].
(N.T., 3/8/18, pp.84-85, 131-33).
-4-
J-S20005-20
[Appellant] testified he was standing in the trailer doorway
as he yelled for Wean to leave and never left this doorway during
the entire incident. (N.T., 3/8/18, pp.85, 90, 129-30). As Wean
approached him, [Appellant] repeatedly shouted for him to leave,
but Wean kept getting closer. (N.T., 3/8/18, pp.85-86, 135).
[Appellant] testified that when Wean was approximately ten or
fewer feet away, he pulled the gun from the small of his back, held
it with both hands, and pointed it at Wean, and that he did so
because he was concerned for his own safety and that of his wife
- that he thought Wean might be under the influence of drugs,2
that he thought Wean might be carrying a weapon,3 and that he
believed Wean was dangerous and prone to violence, Wean having
once told [Appellant] that he had beaten his pregnant girlfriend
and been convicted of assault.4 (N.T., 3/6/18, pp.53, 94; N.T.,
3/8/18, pp.85-87, 90-93, 96, 133, 135, 145-46, 156, 164, 172-
74). [Appellant] testified he believed Wean was about to attack
him and only after he drew his pistol and held it with both hands
pointed at Wean did Wean turn and walk away. (N.T., 3/8/18,
pp.87, 136, 156-57). Only then, after Wean had left, did
[Appellant] admit to leaving the trailer and going outside to make
sure Cerkan had also left. (N.T., 3/8/18, pp.87, 90, 137, 139,
158).
2 Wean denied drinking any alcoholic beverages or
using any controlled substances that day. (N.T.,
3/6/18, pp.47-48, 80, 106-107, 134-35, 187).
3 Wean denied owning or showing any guns to
[Appellant], and [Appellant] admitted he did not see
any weapons on Wean. (N.T., 3/6/18, pp.46-47, 107,
169; N.T., 3/8/18, p.134).
4 Wean testified that in 2001, when he was eighteen
years old, he pled guilty to reckless endangerment
and terroristic threats. He denied ever telling
[Appellant] about this incident. (N.T., 3/6/18, pp.78-
79, 91, 99-100, 108, 113, 115, 120).
[Appellant] denied being intoxicated and denied ever
walking up to Wean and placing the barrel of his gun against
Wean’s cheekbone. He denied having his finger on the trigger and
testified the safety was on. (N.T., 3/8/18, pp.89-90, 171-72).
[Appellant] admitted not knowing whether his weapon was loaded
when it was pointed at Wean, not checking to see whether the
-5-
J-S20005-20
magazine was in the gun, and not knowing when the clip fell out.
(N.T., 3/8/18, pp.145, 166-67).
At the conclusion of jury deliberations, [Appellant] was
found guilty of simple assault, attempting by physical menace to
place another in fear of imminent serious bodily injury, a
misdemeanor of the second degree, 18 Pa.C.S.A. § 2701(a)(3),
and acquitted of recklessly endangering another person, 18
Pa.C.S.A. § 2705, also a misdemeanor of the second degree.
[Appellant] was sentenced on December 20, 2018, to a period of
imprisonment of no less than six nor more than eighteen months.
This sentence was within the standard guideline range after
application of the deadly weapon used sentencing enhancement.
The court also had the benefit of a presentence investigation
report at the time of sentencing.
[Appellant’s] testimony, as indicated, differs materially from
the Commonwealth’s evidence, not only on what [Appellant] did
and why, but also on where [Appellant] was located when his
weapon was pointed at Wean (outside the trailer, in the front yard,
near the road - as claimed by Wean, or while [Appellant] was
standing in the doorway of his trailer), on whether the gun was
loaded or unloaded, and on whether [Appellant] pressed the barrel
of his gun against Wean’s cheekbone, or simply pointed it at Wean
from a distance.
Trial Court Opinion, 4/17/19, at 2-10.
On May 14, 206, Appellant was charged with simple assault and related
crimes. The matter proceeded to a trial in October of 2017, which ended in a
mistrial. Appellant was retried, and on March 9, 2018, a jury convicted him
of simple assault, and the trial court convicted him of the summary offense of
harassment. On December 20, 2018, the trial court sentenced Appellant to
serve a term of incarceration of six to eighteen months for the conviction of
simple assault and to pay a $300 fine for the conviction of harassment.
Appellant filed a timely post-sentence motion. The trial court held a hearing
-6-
J-S20005-20
and denied the post-sentence motion on April 17, 2019. Appellant failed to
file an appeal within thirty days of the date of the order.
On May 22, 2019, Appellant filed a motion seeking a determination
regarding whether the April 17, 2019 order had been properly served upon
the parties. On June 6, 2019, the parties and the trial court entered into a
stipulation and order permitting Appellant to proceed with a direct appeal nunc
pro tunc. On June 11, 2019, Appellant filed this appeal. Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the [trial c]ourt erred in instructing the Jury to
consider both Force and Deadly Force in its Jury Instruction? The
jury should only have been given a justification use of force
instruction. It was also error to allow jurors to choose which
standard (force or deadly force) to apply.
2. Whether the [c]ourt erred in applying the Deadly Weapon Used
Enhancement at Sentencing?
3. Whether the verdict was against the Weight of the Evidence in
that Appellant provided credible and compelling evidence that he
was acting within the law of justification as set forth in
Pennsylvania statute?
Appellant’s Brief at 4-5.
Appellant first argues that the trial court erred in instructing the jury
with regard to self-defense. Appellant’s Brief at 11-19. Appellant contends
that the trial court should not have given self-defense instructions for both the
use of non-deadly force and the use of deadly force. Appellant asserts that
the charging of both levels of force permitted the jury to decide the applicable
-7-
J-S20005-20
law and confused the jury regarding which self-defense instruction should be
applied. Id. at 12. Basically, Appellant alleges that the fact that he displayed
a firearm did not amount to deadly force that required the instruction as
requested by the Commonwealth. We disagree.
In examining the propriety of the instructions a trial court presents
to a jury, our [standard] of review is to determine whether the
trial court committed a clear abuse of discretion or an error of law
which controlled the outcome of the case. A jury charge will be
deemed erroneous only if the charge as a whole is inadequate, not
clear or has a tendency to mislead or confuse, rather than clarify,
a material issue. A charge is considered adequate unless the jury
was palpably misled by what the trial judge said or there is an
omission which is tantamount to fundamental error.
Consequently, the trial court has wide discretion in fashioning jury
instructions. The trial court is not required to give every charge
that is requested by the parties and its refusal to give a requested
charge does not require reversal unless the appellant was
prejudiced by that refusal.
Commonwealth v. Brown, 911 A.2d 576, 582-583 (Pa. Super. 2006) (citing
Commonwealth v. Thomas, 904 A.2d 964 (Pa. Super. 2006)).
In our inquiry, we are cognizant that “when evaluating the propriety of
jury instructions, this Court will look to the instructions as a whole, and not
simply isolated portions, to determine if the instructions were improper.”
Commonwealth v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014)
(citation omitted). “The trial court is free to use its own expressions as long
as the concepts at issue are clearly and accurately presented to the jury.”
Commonwealth v. Ballard, 80 A.3d 380, 407 (Pa. 2013) (citation omitted).
The instructions must adequately, accurately, and clearly present the law to
-8-
J-S20005-20
the jury and must be sufficient to guide the jury in its deliberations.
Commonwealth v. Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996).
We have reviewed the briefs of the parties, the relevant law, the certified
record, and the opinion of the trial court authored by the Honorable Roger N.
Nanovic, President Judge of Carbon County. It is our determination that the
trial court properly held the facts presented during the trial required the
inclusion of both jury instructions. Therefore, we conclude that the opinion of
the trial court correctly and adequately addressed the claim raised by
Appellant. Trial Court Opinion, 4/17/19, at 11-19. Accordingly, we adopt the
trial court’s opinion as our own and affirm on its basis.2
Appellant next argues that the trial court erred in applying the deadly
weapon used enhancement at sentencing. Appellant’s Brief at 19-25.
Appellant asserts that he did not use a deadly weapon, but merely possessed
the firearm. Appellant claims that the trial court should have applied the
deadly weapon possessed enhancement.
We observe that a “misapplication of the Sentencing Guidelines
constitutes a challenge to the discretionary aspects of sentence.”
Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en banc).
Thus, this Court has regarded challenges to the application of the deadly
weapon enhancement in the Sentencing Guidelines as challenges to the
____________________________________________
2 The parties are directed to attach a copy of that opinion in the event of
further proceedings in this matter.
-9-
J-S20005-20
discretionary aspects of the sentence. See Commonwealth v. Rhoades, 8
A.3d 912, 915-916 (Pa. Super. 2010) (treating allegation that the trial court
erred in applying the deadly weapon enhancement as a challenge to the
discretionary aspects of sentencing).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). An appellant challenging the discretionary
aspects of his sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Where an appellant fails to comply with Pa.R.A.P. 2119(f) and the
Commonwealth objects, the issue is waived for purposes of review.
Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa. Super. 2000). However,
a failure to include the Pa.R.A.P. 2119(f) statement does not automatically
waive an appellant’s argument; rather, we are precluded from reaching the
merits of the claim when the Commonwealth lodges an objection to the
- 10 -
J-S20005-20
omission of the statement. Commonwealth v. Roser, 914 A.2d 447, 457
(Pa. Super. 2006) (quoting Commonwealth v. Love, 896 A.2d 1276, 1287
(Pa. Super. 2006)).
Herein, the first two requirements of the four-part test are met because
Appellant brought a timely appeal and raised the challenge in his post-
sentence motion. However, Appellant failed to include in his appellate brief
the necessary separate concise statement of the reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f). The Commonwealth has
failed to object to this error by Appellant. Therefore, we will not consider the
issue to be waived due to the omission. Accordingly, we next determine
whether Appellant raises a substantial question requiring us to review the
discretionary aspects of the sentence imposed by the trial court.
Appellant argues that the trial court abused its discretion by applying
the deadly weapon used enhancement. Appellant’s Brief at 19-25. We have
stated that a challenge to the application of the deadly weapon enhancement
presents a substantial question. Commonwealth v. Raybuck, 915 A.2d
125, 127 (Pa. Super. 2006). Therefore, because Appellant has raised a
substantial question, we will address the merits of Appellant’s claim.
It is undisputed 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. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006). In this context, an abuse of discretion is
- 11 -
J-S20005-20
not shown merely by an error in judgment. Id. 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. Id.Appellant argues the trial court should have implemented the deadly
weapon “possessed” enhancement instead of the deadly weapon “used”
enhancement. Appellant believes that the definition of the term “used” is so
overbroad that it renders the definition of “possessed” meaningless.
Appellant’s Brief at 22. Appellant concedes that the deadly weapon
enhancement is applicable to the facts of this case. Id. However, Appellant
limits his argument to which deadly weapon enhancement, “used” or
“possessed,” is more appropriate. Id. at 24-25.
The following is the applicable enhancement as contained in the
sentencing guidelines:
§ 303.10. Guideline sentence recommendations:
enhancements
(a) Deadly Weapon Enhancement.
(1) When the court determines that the offender
possessed a deadly weapon during the commission
of the current conviction offense, the court shall
consider the DWE/Possessed Matrix (§ 303.17). An
offender has possessed a deadly weapon if any of the
following were on the offender’s person or within his
immediate physical control:
(i) Any firearm, (as defined in 42
Pa.C.S. § 9712) whether loaded or
unloaded,
- 12 -
J-S20005-20
...
(2) When the court determines that the offender
used a deadly weapon during the commission of the
current conviction offense, the court shall consider the
DWE/Used Matrix (§ 303.18). An offender has used a
deadly weapon if any of the following were employed
by the offender in a way that threatened or injured
another individual:
(i) Any firearm, (as defined in 42
Pa.C.S. § 9712) whether loaded or
unloaded[.]
204 Pa.Code § 303.10(a)(1), (2) (emphasis added).
Before the deadly weapon enhancement can be applied to a guideline
sentence, the sentencing judge must first determine whether the offender
either possessed or used a deadly weapon during the commission of the
current conviction offense. 204 Pa.Code § 303.10(a)(1), (2). See also 204
Pa.Code § 303.9(b) (relating to deadly weapon enhancement sentence
recommendations). For purposes of the deadly weapon enhancement, the
term “used” is defined to mean that the firearm was “employed by the offender
in a way that threatened or injured another individual.” 204 Pa.Code §
303.10(a)(2).3 Thus, under section 303.10(a)(2), when the trial court
determines that the offender used a firearm during the commission of the
____________________________________________
3 We note that the term “possessed” is statutorily defined to mean that the
firearm was “on the defendant’s person or within his immediate control.” 42
Pa.C.S. § 2154(b).
- 13 -
J-S20005-20
offense, the guideline applies if the offender used the firearm in a way that
threatened or injured another individual.
In addition, we observe that during the commission of a crime, the
possession of a firearm can escalate to use of the gun. As we stated in
Commonwealth v. Shull, 148 A.3d 820, 832 (Pa. Super. 2016), “[the
appellant’s] mere possession of a gun transcended to his use of the gun as an
implement of submission and fear when he decided to remove it from under
his clothing and hold it—with finger on trigger—directly above [the victim’s]
face as she lay helplessly under his forcible control.”
In addressing this claim, the trial court offered the following discussion:
[Appellant] did not merely possess a firearm. The gun at issue
was not simply on [Appellant’s] person or within his reach. To the
contrary, [Appellant] deliberately drew the firearm from his rear
waistband, held it in both hands, and pointed it directly at Wean.
Whether he was ten feet away, as claimed by [Appellant], or
[whether he] pressed the barrel of this weapon against Wean’s
cheek, as claimed by Wean, and whether the weapon was loaded
or unloaded, the weapon was unquestionably utilized by
[Appellant] in the commission of the offense for which he was
convicted, simple assault, attempting by physical menace to place
another in fear of imminent serious bodily injury.
Trial Court Opinion, 4/17/19, at 21-22.
Likewise, our review of the record reflects that during the confrontation
between Appellant and Wean, Appellant pulled a pistol from his back
waistband and approached Wean while holding the handgun with both hands
and his finger on the trigger. N.T., 3/6/18, at 69-71. Appellant then placed
the gun under Wean’s left eye and held it there for nearly one minute. Id.- 14 -
J-S20005-20
This evidence supports the trial court’s conclusion that Appellant used a
firearm in a way that threatened the victim, and the deadly weapon used
enhancement applies. Thus, the trial court did not abuse its discretion when
it employed the deadly weapon used enhancement of the sentencing
guidelines. Consequently, Appellant’s contrary claim lacks merit.
Appellant last argues that the verdict was against the weight of the
evidence. Appellant’s Brief at 25-27. Appellant contends that Wean was the
aggressor in the situation and that Appellant believed that Wean had “done
something to his wife based on his wife’s unusual behavior.” Id. at 25-26.
Appellant states that his “testimony and behavior show an intent to control an
uncertain and potentially dangerous situation as opposed to intending to
physically menace Mr. Wean.” Id. at 26. Appellant claims that the verdict of
guilt rendered by the jury is so contrary to the weight of the evidence that it
shocks one’s sense of justice such that his conviction should be reversed and
a new trial ordered.
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319,
744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown,
538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should
not be granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at a
different conclusion. Widmer, 560 A.2d at 319-[3]20, 744 A.2d
- 15 -
J-S20005-20
at 752. Rather, “the role of the trial judge is to determine that
‘notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation
omitted). It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. Because the
trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give
the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based on
a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
- 16 -
J-S20005-20
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
Clay, 64 A.3d at 1054-1055 (emphasis in original). “Thus, the trial court’s
denial of a motion for a new trial based on a weight of the evidence claim is
the least assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873,
879-880 (Pa. 2008).
The trial court addressed the challenge to the weight of the evidence as
follows:
As is apparent from our recitation of the facts earlier in this
opinion, the Commonwealth’s evidence was more than sufficient
to prove these elements and to disprove the claim of self-defense,
and the evidence to the contrary was not so overwhelming or
pervasive as to undermine any material conflicts in the evidence
resolved by the jury.8 In its assessment of the credibility of
witnesses and the weight it assigned to the evidence before it, the
jury may well have determined, inter alia, that [Appellant] was
the initial aggressor and provoked the confrontation with Wean;
that [Appellant’s] belief that he needed to protect himself against
Wean was unreasonable in that there was nothing in Wean’s
conduct to support an objective belief that [Appellant] was in
imminent and real danger such that any force was justified, much
less the extent of force actually used;9 or that [Appellant] was
subject to a duty to retreat which was violated, any one of which
would provide ample support for the jury’s verdict. That the jury
chose to accept the Commonwealth’s version of what occurred and
- 17 -
J-S20005-20
to reject [Appellant’s] claim of self-defense does not shock our
conscience.10
8 Indeed, [Appellant] effectively concedes that his
conduct satisfies the elements of the offense of which
he was convicted, but claims he was justified in his
actions, a claim the jury was well within its
prerogative to disbelieve and reject.
9 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. Truong,
36 A.3d 592, 599 (Pa. Super. 2012) (en banc), appeal
denied, 57 A.3d 70 (Pa. 2012).
10 In arguing that the verdict was against the weight
of the evidence, [Appellant’s] argument is premised
upon weighing only the evidence favorable to
[Appellant], rather than balancing this against the
weight of the Commonwealth’s evidence, as required
by our case law.
Trial Court Opinion, 4/17/19, at 25-26.
Based upon our complete review of the record, we are compelled to
agree with the trial court’s conclusion that the jury’s verdict was consistent
with the evidence presented. Here, the jury, sitting as the finder of fact, was
free to believe all, part, or none of the evidence against Appellant. The jury
weighed the evidence, discounted Appellant’s claim of self-defense, and
concluded Appellant committed the crime of simple assault. We agree that
these determinations are not so contrary to the evidence as to shock one’s
sense of justice. We decline Appellant’s invitation to assume the role of fact-
finder and reweigh the evidence presented at trial. Accordingly, we conclude
- 18 -
J-S20005-20
that the trial court did not abuse its discretion in refusing to grant relief on
Appellant’s challenge to the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/20
- 19 -
Circulated 09/03/2020 1244 PM
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CRIEINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
vs. NO. 798 CR 2016
SCOTT TIMOTHY WATKINS,
Defendant
Cynthia A. Dyrda-Hatton, Esquire Counsel for Commonwealth
Assistant District Attor�ey
Eric Winter, Esquire Counsel for Defendant
EEMJRANDUM OPINION
Nanovic, P.J. - April 17, 2019
Whether· a defendant acted in self-defense can sometimes be
difficult to determine, particularly when factual disputes exist
over who was the aggressor, whether the defendant provoked the
confrontation, and whether there existed a duty to retreat, and
becomes even more comp Li ca t ed when the nature of the force used
- whether deadly or non-deadly - is itself in dispute. Is the
threat to shoot another in a vital part of the body with an
openly visible firearm the use of deadly or
r-r-
non+de ad Ly ·, 1"--,.1
''''"'
�rce?
.. :::-- .. �;"'1
. .. -0 \ !
Does it make a difference if the firearm is loaded or· tinl�dedT.:
_l
' .....
Should the jury, under certain circumstances, be i�s�:�c�d 6rt;
�J-i� 18e
)
• ... - 4 ...
,
__
the principles of self-defense applicable to both of
_J
deadly force and non-deadly force, as different rules apply
depending on whether the force was deadly or not.
Here, Defendant contends that when he pointed his handgun
[FN-7-19]
1
P213 -
at the head of the victim r-e did so in self-defense, to force
the victim, who he believed was about to harm him, to back up,
and that because his intent was to intimidate and threaten the
victim, not to harm him, there was no use of deadly force,
whether the fire arm was loaded or unloaded, and that,
consequently, the jury instr .ic t i on given on the use of deadly
force in self-defense was i� erro�. Defendant further contends
that at sentencing it was error to apply the deadly weapon used,
rather than the deadly weapon possessed, sentencing matrix, and
that his conviction of simple assault for putting another in
fear of imminent serious bodily injury by physical menace was
against the weight of the evidence.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 8:30 F.M. on May 14, 2016, Scott Watkins,
the Defendant, and �isa Watkins, his wife, arrived at Sunny Rest
Resort, an eigh�y to ninety-acre clothing optional resort
located in Franklin and Towamensing Townships, Carbon County,
Pennsylvania, for the operri nq weekend of the 2016 season. {N.T.,
3/6I1B r pp. 4 0-4 1, 1B3 ; N.T. r 3 I BI 18, p . 41) . During this first
weekend of the season, which is open to members only, members
socialize with one another and renew acquaintances. (N. T.,
3 I 6 I 1 B r pp . 4 7 r 13 3 ; N . T . , 3 I 8 I 18 , pp . 3 8 , 4 1 ) .
The Resort employs private security who patrol the grounds
using golf carte. Their duties primarily are to assist members
[FN-7-19)
2
P214 -
and guests and ::c. keep the peace. (N.T., 3/6/18, pp.40, 45, 47,
128, 133, 161). They are not allowed to carry weapons and they
do not enforce the law. (N,1'., 3/6/18, pp.42-44; N.T., 3/8/18,
pp.109-110). On this partic�lar date, Ch�istopher Wean and Jason
Cerkan were working as security guards at the Resort. Each had
worked there for several years and were known by both Defendant
and his wife. (N . T . r 3 I 6 /18 r PP. 3 9, 4 6, 50 r 57 , 8 2-8 3, 12 8 ,
133, 135, 149-50, 154). In fact, Defendant, who at one time had
also worked as a security guard at the Resort, helped train and
familiarize both Wean and Cer kan with their responsibilities as
a security guard. (N . T . 1
:J / 6 / 18 1 pp , 4 0-4 1 r 4 5-4 6, 131, 15 6 i
N.T., 3/8/18, p.40).
At approximately 10: 30 P. JI-:. on May 14, 2016·, as Wean and
Cerkan were making their rounds, they spotted Defendant and his
wife at an outdoor deck party. (N , T , r 3 / 6 / 18 r pp , 4 8 - 4 9 ) , Both
were intoxicated. (N.T., .3/6/18, pp.49-50, 134-35, 160, 181,
184, 187). Mrs. Watkins asked if they would give her a ride to
her trailer where she wanted to use the restroom and make
another drink for herself. (N.T., 3/6/18, pp.50, 55-56, 135-36;
N.T., 3/8/18, pp.49, 118-19). They agreed. At the Watkins'
trailer, located approximately fifty to a hundred yards from the
deck party, Mrs. Wat kins invited both security guards to come
inside and offered them some candy. (N.T., 3/6/18, pp.56-57).
Wean and Cerkan were inside the trailer for approximately three
[FN-7-19]
3
P215 ·
minutes and then went ou t s i de to wait for Mrs. Watkins before
returning her to the party. (N . T . , 3 / 6 / 18 , PP . 5 6, 6 3 , 13 8 - 3 9 ) .
As the two were waiting outside, Defendant suddenly drove
up, parked his vehicle on the road in front of the trailer,
slammed the door of the veh i.c Le shut, walked directly to the
trailer a (istance of approximately twenty to twenty-five
feet1 passing Wean and C.�rkan along the way and muttering
something indecipherable as he passed - and entered the trailer
abruptly, slamming the door behind him. (N.T., 3/6/18, pp. 64-
66, 77, 139-141; N.T., 3/8/18, p.59). Both Wean and Cerkan
testified that Defendant was clearly upset at something. (N. T. I
3 / 6 / 18 I PP , 6 6 r 1 4 1 ) .
Soon after Defendant entered the trailer, Wean and Cerkan
heard Defendant screaming at his wife and, through a window,
Wean saw Defendant strike his wife three times in the face.
(N.T., 3/6/18, pp.66-68). Wean told Ce r ka n what he saw and
Cerkan, unsure of what to dJ, walked up to the trailer door and
knocked. (N.T., 3/6/18, pp.68-69, 141-143). From inside the
trailer, Defendant yelled, "Are you F' n kidding me?" (N. T.,
3/6/18, pp. 69, 143). Within seconds the door of the trailer
flew open and Wean watched as Defendant drew a loaded handgun
from his rear waistband and exited the trailer. (N.T., 3/6/18,
(FN-7-19]
4
P216 -
pp. 69 , 143 , 151} . 1 As this was happening, Cerkan ran to the side
of the trailer and disappeared. ( N. T . , 3 I 6 I 18 , pp . 7 0, 14 3 , 14 8 ,
152) .
Defendant approached Wean with his pistol drawn and pointed
at Wean - his left hand .:::radling the gun from below and the
trigger finger of his right hand on the trigger. (N. T., 3/6/18,
PP. . 6 9 - 7 0 , 88, 11 9 ; N.T. , 3 I 8 I 18 , pp . 13 5, 1 71 ) . In response,
Wean stepped backwards several steps. (N • T . r 3 I 6 I 18 , PP . 6 9, 71,
76). When Defendant reached where Wean was standing,
approximately ten feet from the trailer, Defendant pressed the
barrel of the pistol against Wean' s left cheekbone, directly
beneath his eye. (N.T., 3/6/18, pp.69-71, 76-77, 88, 116). For
approximately a minute, the two stood facing one another without
speaking. (N.T., 3/6/18, p. 71). Defendant then lowered his
weapon and told Wean to get out, at which point Wean slowly
backed away from Defendant, got in the golf cart, and drove
away. (N.T., 3/6/18, p.72}.
Wean testified that when the pistol was pressed against his
cheek, he thought he was going to die. (N • T . r 3 I 6 I 18 , pp . 7 2 ,
1 v1hat later turned out to be a loaded magazine clip, but which was
unrecognizable by Wean at the time, dropped to the ground as Defendant was
drawing his weapon and exiting the trailer. (N.T., 3/6/18, pp.69, 75, 147;
N.T., 3/8/18, p.166). It is unclear whether this magazine clip was
intentionally removed from the handgun by Defendant or accidentally became
dislodged as Defendant drew his weapon. (N.T., 3/8/18, p.145]. What is
clear, is that a loaded round was in the gun's chamber when the gun was
pointed at Wean. (N.T., 3/6/18, pp.115-16, 182-83, 198, 215-17; N.T.,
3/8/18, pp .166-67).
[FN-7-19]
5
P217
- -- - -------------------------------
102). Later that same night, after the police were called and
responded to toe Resort, �lE:fendant' s 40 caliber handgun was
recovered where he had placed it on an outside picnic table to
the left of the trailer without clearing or unloading the gun.
-
(N.T., 3/6/18, pp.32, 179, 192-93, 214-15; N.T., 3/8/18, pp.140-
41, 151, 166, : 72}. One 1 i. ve round was found in the chamber,
confirming that the gun was loaded at the ti�e it was pointed at
Wean. (N •T. , 3 I 6 I 18 , PP . 18 2 - 8 3 , 19 8 , 215 -1 7 ; N.T. r 3 I 8 I 18 ,
pp.166-67}.
At trial, Defendant testified on his own behalf. Defendant
did not dispute that he possessed and pointed his pistol at Wean
during the commission of this offense, however, Defendant
testified he did so in self-defense. Defendant's testimony to
support this claim follows.
According to Defendant, when twenty minutes had passed and
his wife, to whom he had been married for less than a year, had
not returned to the party after leaving with Wean and Cerkan, he
became concerned and decided to look for her at the trailer.
(N. T., 3/8/18, pp. 36, 4 9-5(1,. 119-20, 17 0) . As he pulled Up in
front of the trailer, Defendant claimed Wean and Cerkan were
just then exiting the .trailer, that Cerkan ran to the side of
the trailer where he Lo s '; sight of him, and that Wean was
walking in his direction. (N. T., 3 I 8 I 18 , pp. 5 4 - 5 7 , 122) .
Defendant t.e s t.Lf i.ed he walked directly from his vehicle to the
[FN-7-19]
6
P218 ·
,,,�an on th e way,
that as h e passe d o Mean s a id , "What's
trailer, vv
up?'', and he responded, "You tell me," and that as he walked
Wean, he smelled an c.do r of marijuana. (N.T., 3/8/18,
past
pp. 57-58, 75, 123-24, 126}.
Once inside the trailer, Defendant testified he saw his
wife stagger from the bathroom and fall to the floor. (N. T.,
J/8/18, pp. 60-61, _81-82, 128). According to Defendant, his wife
was more intoxicated than when she had left the party, and he
believed she had been drugged. (N • T . , 3 / 8 I 1 8 , pp . 6 0 r 64 , 7 4 - 7 5 ,.
80-82, 128). Defendant admitted yelling "What the F's going on"
to his wife and anyone who might be standing outside the
trailer. (N.T., 3/8/18, pp. 1.28-29, 146-47). It was at this
point, Defendani: claimed, he opened the door to make sure Wean
and Cerkan had Le f t; the property. (N . T • , 3 / 8 I 18 , pp . 8 2 - 8 4 ) .
When he did so, he saw Wean standing by the golf cart near the
street, approximately twenty-·five feet away, and yelled several
times for him to "Get the · F' out of there." (N.T., 3/8/18,
pp.59, 84-85, 129-30, 132). At first Wean began to walk away,
down the street, but he then turned and started walking towards
the Defendant. ( N . T . , 3 / 8 / 1 l3 r pp . 8 4 -8 5, 131- 3 3) .
Defendant testified he was standing in the trailer doorway
as he yelled for Wean to leave and never left this doorway
during the entire incident. (N.T., 3/8/18, pp.SS, 90, 129-30).
As Wean approached him, Defendant repeatedly shouted for him to
[FN-7-19)
7
P219 -
leave, but Wean kept getting closer. (N . T . , 3 / 8 / 18 , pp . 8 5 -8 6,
135) . Defendant testified that when Wean was approximately ten
or fewer feet away, he pulled the gun from the small of his
back, held it with both hands, and pointed it at Wean, and that
he did so because he was concerned for his own safety and that
of his wife - that he thought Wean might be under the influence
of drugs,2 that he thought Wean might be carrying a weapon,3 and
that he believed Wean was dangerous and prone to violence, Wean
having once told Defendant that he had· beaten his pregnant
girlfriend and been convicted of assault.4 (N.T., 3/6/18, pp.53,
94; N.T., 3/8/18, pp.85-87, 90-93, 96, 133, 135, 145-46., 156,
164, 172-74). Defendant testified he believed Wean was about to
attack him and only after he drew his pistol and held it with
both hands pointed at Wean did Wean turn &nd walk away. (N. T.,
3/8/18, pp.87, 136, 156-57). Only then, after Wean had left,
did Defendant admit to leaving the trailer and going outside to
make sure Cerkan had also left. (N • T • , 3 / 8 / l B , pp . 8 7 , 90 , 13 7 ,
139, 158).
2 Wean denied drinking any alcoholic beverages or using any controlled
substances that day. (N.T., 3/6/18, pp.47-49, 80, 106-107, 134-35, 187).
3 Wean denied owni.lg or showing any guns to Defendant, and Defendant admitted
he did not see any weapons on Wean. (N,T., 3/6/19, pp.46-47, 107, 169; N.T.,
3/8/18, p.134),
� Wean testified that in 2001, when he was eighteen years old, he pled guilty
to reckless endangennent and terroristic threats. He denied ever telling
Defendant about this incident. (N,T., 3/6/18, pp. 78-79, 91, 99-100, 108,
113, 115, 120).
[FN-7-19]
a
P220 ·
Defendant denied being intoxicated and denied ever walking
up to Wean and placing t r.e barrel of his gun against Wean' s
cheekbone. He denied having his finger on the trigger and
testified the safety was on. (N.T., 3/8/18, pp.89-90, 171-72).
Defendant admitted not knowing whether his weapon was loaded
when it was pointed at Wean, not checking to see whether the
magazine was in the gun, and not knowing when the clip fell out.
(N.T., 3/8/18, pp.145, 166-67).
At the conclusion o: jury deliberations, Defendant was
found guilty of simple assault, attempting by physical menace to
place another in fear of imminent serious bodily injury, a
misdemeanor of the second degree, 18 Pa. C. S. A. § 2701 (a) ( 3), and
acquitted of recklessly endangering another person, 18 Pa.:.S.A.
§ 2705, also a misdemeanor of the second degree. Defendant _was
sentenced on December 20, 2018, to a period of imprisonment of
no less than six nor more than eighteen months. This sentence
was within the standard guideline range after application of the
deadly weapon used s errt enct.nq enhancement. The court also had
the benefit of a presentence investigation report at the time of
sentencing.
Defendant's testimony, as indicated, differs materially
from the Commonwealth's evidence, not only on what Defendant did
and why, but a:so on where Defendant was located when his weapon
was pointed at Wean (outside the trailer, in the front yard,
[FN-7-19]
9
P221 -
near the road as claimed by Wean, or while Defendant was
standing in the doorway of his trailer), on whether the gun was
loaded or unloaded, and on whether Defendant pressed the barrel
of his gun against Wean' s cheekbone, or simply pointed it at
Wean from a distance.
Defendant requested a jury instruction for self-defense by
use of non-deadly force. 'I'h e Cornmcnwe e Lt.h z e que st ed that if the
jury were instructed on self-defense, the instruction should be
that given with respect to the use of deadly force. Because the
facts could support either. depending on what evidence the jury
accepted as true, both ir.structions were given with the jury
instructed that they would have to determine whether or not the
gun was loaded and where Defendant was standing (inside or
outside the trailer) when the gun was pointed at Wean. In
Defendant's post-sentence motion filed on December 31, 2018,
Defendant claims this was error and that even if the gun was
loaded, it was not used as a deadly weapon, but simply
brandished with the intent to intimidate Wean, not to harm him.
In a similar vein, Defendant claims we erred by sentencing
pursuant to the deadly weapon used rather than the deadly weapon
possessed enhancement. Finally, Defendant requests a new trial,
contending the jury's verdict was aqa Lns t; the weight of the
evidence.
[FN-7-19)
10
P222 -
DISCUSSION
1. Instructing on thE Use of Deadly and Non-Deadly Force
in Self-Defense �fj1en a Genuine Factual Issue Exists as
to Which was Used
self-defer.se, also known as j usti fi cation, recognizes the
common sense principle that a person can protect himself against
the unlawful use of force by another provided the level of force
used by him is not; d i s pr op )rtiorate to the level of force used
against him. This princip:e is codified in Section 505 of the
Crimes code. 18 Pa.C.S.A. § 505. Section SOS(a) of the Crimes
Code applies to self-defense generally. Commonweal th v. Childs,
142 A. 3d 823, 829 (Pa. 2016). Section 505 (b) (2) deals
specifically with the use of deadly force in self-defense. Id.As a general rule, an individual is justified in using
force upon anc t ne r person °''when the actor believes that such
force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other person
on the present occasion." 18 Pa.C.S.A. § 505(a). The use of
deadly force is justified only if the actor believes that such
force is immediately necessary to protect himself against death
or serious bodily injury. 18 Pa.C.S.A. § 505(b).
To justify the use of deadly force, the evidence must
establish three elements: "(a) that the defendant reasonably
believed that he was in imminent danger of death or serious
bodily injury and that it was necessary to use deadly force
[FN-7-19]
11
P223 ·
against the victim to prevent such harm; {bl that the defendant
was free from �ault in provoking the difficulty which culminated
in the [use of such force]: and (c) that the defendant did not
violate any duty to retreat:." Commonweal th v. Mouzon, 53 A. 3d
738, 740 (Pa. 2012) (c i t a t i.ons and quotation marks omitted) .5
The requirement of a reasonable be:ief encompasses both a
subjective and objective c ompo ne rrt : the defendant "must have
acted out of an honest, bona fide belief that he was in imminent
danger" and suet belief mu s t; be objectively reasonable in light
of the facts as they appear to the defendant. Mouzon, ia. at
752 (citation and quotation marks omitted). nwhether a defendant
acts out of an honest, bona fide belief and whether such a
belief was reasonable, are issues properly resolved by the trier
of fact." Commonwealth ':. Po r o z , 698 A.2d 640, 646 (Pa.Super.
1997) (citation omitted).
"A jury charge on self-defense must be given upon request
where the jury would have a possible basis for finding self-
defense." Corrunonwealth v. Bailey, 471 A.2d 551, 553 (Pa.Super.
1984). "If there is evidence presented that could support a
claim of self-defense, it is up to the fact-finder to pass upon
5 "[A] s an evidentiary matter, . . . when self-defense is properly at issue,
evidence of the victim's prior convictions involving aggression may be
admitted, if probative, either I l) to corroborate the defendant's alleged
knowledge of the victim's violenc character, to prove that the defendant was
in reasonable fear of danger, oz (2) as character/propensity evidence, as
indirect evidence tnat the victirt was in fact the aggressor." Mouzon, 53 A. 3d
at 741.
[FN-7-19)
12
P224 -
its credibility and therefore it is improper for a trial court
to exclude such consideration by refusing a charge thereon."
Commonweal th v. Bailey, 4 71 A. 2d at 553. When the elements of
self-defense are met and accepted by the fact-finder, the
defense "justifies" what wcu l d otherwise be criminal conduct on
the part of the defendant, and the result is an acquittal.
Mouzon, 53 A.3d at 751.
When the evidence, from whatever source, justifies a
finding of self-defense, "the burden is upon the Commonwealth to
prove beyond a reasonable doubt that the defendant was not
acting in self-defense." t!�·uzon, 53 A. 3a at 7 4 0 (citation and
quotation marks omitted). "The Commonwealth sustains that burden
of negation if it proves any of the following: that the
fdefendant] was no t free from fault in provoking or continuing
the difficulty which resulted in the [use of such force]; that
the [defendant� did not zeasonably believe that he was in
imminent danger of death or great bodily harm, and that it was
necessary to [use such force] in order to save himself
therefrom; or that the [defendant] violated a duty to retreat or
avoid the danger." Id. at 740-41 (citation and quotation marks
omitted). "If the Commonwe aLt.h establishes any one of these
three elements beyond a reascnable doubt, then the conviction is
insulated from a defense challenge to the sufficiency of the
evidence where self-protection is at issue." Commonweal th v.
[FN-7-19]
13
P225 -
Burns, 765 A.2d 1144, 1149 (Pa.Super. 2000), appeal denied, 782
A.2d 542 (Pa. 2001).
As pertains to this issue, Defendant argues first that
whether or not the pistol he pointed at Wean was loaded, his
actions did not constitute the use of deadly force and,
therefore, it was error for the court to instruct the jury on
the elements of self-defense when deadly force is involved. As
the court understands Defendant's position, unless the evidence
established that it was Defendant's conscious intent to actually
cause death or serious bodily injury, the mere pointing of his
weapon at Wean, whether loaded or unloaded, and whether or not
pressed against wean's cheekbone, was at most a nshow of force,n
what Defendant describes as "brandishingu in his brief, and not
the use of deadly force. Interrelated to this argument,
Defendant claims it was error for the court to instruct the jury
on the elements of sel £-defense for both the use of force as
permitted in 18 Pa.C.S.A. § 505(a) and the use of deadly force
as permitted in 18 Pa.C.S.A. ss 505(b) (2), (2.1), and {2.2),
since this could only confuse the jury in its review of the
evidence and which instruction to apply.
Chapter 5 of the Crimes Code entitled "General Principles
of Justification" contains a definitional section wherein the
term "deadly force" is defined as
[FN-7-19)
14
P226
Force which, under the circumstances in which it
is used, is readily capable of causing death or
serious bodily injury.
18 Pa.C.S.A. s 501 ( Definitions) . Here, as previously
described, Defendant pressed the barrel of a loaded pistol
against Wean's left cheekbone directly beneath his eye and held
it there for approximately a minute. Defendant was intoxicated
and minutes earlier was furious as he walked from his vehicle to
his trailer. (N.T., 3/6/18, p.66). This evidence, if accepted
by the jury, clearly demonstrated the use of force under
circumstances "readily capable of causing death or serious
bodily injury."
Defendant contends that the word "use" in the Crimes Code's
definition of "deadly force" is ambiguous and that to correctly
interpret the meaning of "deadly force" we should adopt the
definition given in Section 3.11 of the Model Penal Code which
provides as follows:
(2) "deadly force" means force that the actor
uses with the_purpose of causing or that he knows
to create a substantial risk of causing death or
serious bodily injury. Purposely firing a
firearm in the direction of another person or at
a vehicle in which another person is believed to
be constitutes deadly force. A threat to cause
death or serious bodily injury, by the production
of a weapon or otherwise, so long as the actor's
purpose is limited to creating an apprehension
that he will use deadly force if necessary, does
not constitute deadly force.
,,
Model Penal Code, Section 3.11 (Definitions).
[FN-7-19)
15
P227 -
The simple answer to Defendant's argument is that while
Pennsylvania's Crimes Code is in large part derived from the
Model Penal Code, the Model Penal Code was never adopted
verbatim as the Penal Code for this Commonwealth, and there are
clear differences between the two. As is evident, while the
Model Penal Code definition for "deadly force" concentrates on
the intent of the actor to actually cause death or serious
bodily injury, the definition in the Crimes Code focuses on the
danger posed by the actor's conduct and whether it is "readily
capable of causing death or serious bodily injury.u Given this
difference in the actual language enacted by our state
legislature in defining the term "deadly force", and the
principle that "[w]hen the words of a statute are clear and free
from all ambiguity, the letter of it is not to be disregarcied
under the pretext of pursuing its spirit,u 1 Pa.C.S.A. §
1921 (b), we have no difficulty in concluding that the
Commonwealth's evidence, if accepted by the jury, supported a
fin ding of the use of deadly force by Defendant against Wean.
Cf. Commonwealth v. Mayfield, 585 A.2d 1069, 1077 (Pa.Super.
1991) (en bane) (finding that the mere brandishing of a knife
during the course of a fight in anticipation of using it in
self-defense constituted the use of deadly force); Commonwealth
s: _Gonzales, 483 A.2d 902, 904 (Pa.super. 1994) (holding that
the mere act of pointing a gun at an individual, even if no
(FN-7-19)
16
P228 ·
attempt is made to shoot, constitutes an assault to which the
defendant was entitled to raise the issue of self-defense) .6
Defendant complains as well that we erred in instructing
the jury on the elements of self-defense applicable both when
deadly force :is used and when non-deadly force is used by the
defendant. What Defendant fails to appreciate is that at the
time the jury was instructed, whether the gun was loaded or
unloaded when pointed at Wean was as yet undetermined by the
jury, either finding being consistent with the evidence
presented and the jury's right to accept all, none, or some of
the evidence presented by the Com.monwealth. Commonwealth v.
Mayfield, 585 A.2d at 1071. If the gun was loaded, self-defense
by use of deadly force was at issue; if unloaded, the question
before the jury was Defendant's justification for the use of
non-deadly force. Given these circumstances, to properly
evaluate Defendant's claim of self-defense based on its
determination of whether Defendant employed deadly or non-deadly
force, it was necessary that the jury be given both
instructions.
"In charging a jury, it is the primary duty of the trial
judge to clarify issues so that the jury may understand the
�In so describing the holding in Gonzales, the court in Mayfield further noted
that implicit in this holding is that the mere pointing of the gun
constituted an act of using deadly force. 585 A,2d at 1077.
[FN-7-19)
17
P229
questions to be resolved." Commonwealth v. Mayfield, 585 A. 2d
at 1075) (citation and quotation marks omitted). "As a general
rule the trial court should instruct the jury on the law
applicable to the facts of the case before it and should charge
only on those points and issues which arise out of the evidence
and arguments presented." Id. Instructions which "as a whole
[are] inadequate or not clear or [have] a tendency to mislead or
confuse rather than clarify a material issue" constitute grounds
for a new trial. Passarella v . Grumbine, 87 A.3d 285, 296-97
(Pa. 2014),
Before instructing the jury on the elements of self-defense
applicable when deadly force and when non-deadly force is used,
the following preliminary instruction was given:
Now, I want to go to the issue of belf-defense.
The Defendant has raised the issue of whether he
acted in self-defense when he pointed his firearm
at the alleged victim, Christopher Wean. Self-
defense is called justification in the law of
Pennsylvania. If the Defendant's actions were
justified, you cannot find him guilty beyond a
reasonable doubt. Since the Commonwealth has the
burden of proof in this case, the Commonweal th
must prove to you beyond a reasonable doubt that
the Defendant did not act in justifiable self-
defense, and the z'u Le s differ in self-defense as
to whether the force used was deadly force or
non-deadly force.
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
Defendant used at the time of this incident.
There are two kinds, deadly and non-deadly, The
Commonwealth claims that deadly force was used by
the Defendant and it must prove that claim beyond
(FN-7-19'.
18
P230 -
a reasonable doubt, so I first want to instruct
you on self-defense with respect to deadly force.
For purposes of this instruction, the use of
deadly force is such force that under the
circumstances in which it is used is readily
capable of causing death or serious bodily
injury. In order to meet that definition, in
this case, the Commonweal th needs to prove that
there was, in fact, a cartridge in the chamber of
this firearm. If the gun was unloaded or did not
have a cartridge in the chamber, then it was not
necessarily readily capable of causing death or
serious bodily injury.
* * *
(N.T., 3/9/18, pp. 76-77).
This instruction, together with the entirety of the
instructions when read as a whole, clearly explained to the jury
the reason why both instructions on justification were given.
This approach to giving both instructions is recognized as well
in the current standard jury instructions when a genuine issue
exists regarding the nature of the force used. See Pa. SSJI
(Crim) § 9.501 (2012), Subcomrnitee Note.
2. Applicability of Deadly Weapon Used Enhancement for
Sentencing
Defendant next contends that we abused our discretion in
the sentence imposed, applying t.he deadly weapon used
enhancement, rather than the deadly weapon possessed
enhancement. This claim raises a challenge to the discretionary
aspects of sentencing which, to be reviewed, requires, inter
alia, that Defendant raise a substantial question that the
(FN-7-19]
19
P231 -
sentence appealed from is not appropriate under the Sentencing
Code. See Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa.Super.
2010) (en bane) (" [A] challenge to the application of the deadly
weapon enhancement implicates the discretionary aspects of
sentencing."), appeal denied, 20 A. 3d 485 (Pa. 2011) ;
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011)
(noting the need to raise a substantial question before a
discretionary aspect of sentencing will be reviewed). Such a
question is raised when the deadly weapon used enhancement is
applied. Commonwealth v. Tavarez, 174 A.3d 7, 10 (Pa.Super.
2018), appeal denied, 189 A.3d 385 (Pa. 2018).
The Sentencing Guidelines explain the "use" and
"possession" deadly weapon enhancements as follows:
(a) Deadly Weapon EHhant..:ement.
(1) When the court determines that the offender
possessed a deadly weapon during the commission
of the current conviction offense, the court
shall consider the OWE/Possessed Matrix (§
303.17(a)}. An offender has possessed a deadly
weapon if any of the following were on the
offender's person or within his immediate
physical control:
(i) Any firearm, (as defined in '12 Pa.C.s.
§ 9712) whether loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18
Pa.C.S. § 913), or
(iii) Any device, implement, or
instrumentality designed as a weapon or
capable of producing death or serious bodily
injury where the court determines that the
[FN-7-19]
20
P232 ·
offender intended to use the weapon to
threaten or injure another individual.
(2) When the court determines that the offender
used a deadly weapon during the commission of
the current conviction offense, the court shall
consider the OWE/Used Matrix (§ 303 .17 (b)) . An
offender has used a deadly weapon if any of the
following were employed by the offender in a
way that threatened or injured another
individual:
(i) Any firearm, (as defined in 42 Pa.c.s.
§ 9712) whether loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18
Pa.c.s. § 913), or
(iii) Any device, implement, or
instrumentality capable of producing death
or serious bodily injury.
204 Pa. Code § 303 .10. As expressly stated in this section, the
deadly weapon used enhancement applies when the offender uses
any firearm (whether loaded or unloaded) in a way that threatens
or injures the victim while committing the particular offense.
See, e.g., Commonwealth v. Shull, 148 A.3d 820, 832 (Pa.Super.
2016) (concluding that defendant's "mere possession of a gun
transcended to his use of the gun" when he removed the gun from
under his clothing and pointed it at victim's face during
attempted robbery). "The trial court may not disregard an
applicable enhancement when determining the appropriate
sentencing ranges." Tavarez, 174 A.3d at 10.
Here, Defendant did not merely possess a firearm. The gun
at issue was not simply on Defendant's person or within his
[FN-7-19)
21
P233 ·
reach. To the contrary, the Defendant deliberately drew the
firearm from his rear waistband, held it in both hands, and
pointed it directly at Wean. Whether he was ten feet away, as
claimed by Defendant, or pressed the barrel of this weapon
against Wean's cheek, as claimed by Wean, and whether the weapon
was loaded or unloaded, the weapon was unquestionably utilized
by Defendant in the commission of the offense for which he was
convicted, simple assault, attempting by physical menace to
place another in fear of imminent serious bodily injury. 18
Pa.C.S.A. s 2701(a) (3). See also Commonweal th v. Hopkins, 747
A.2d 910, 914-15 (Pa.Super. 2000} (observing that a factfinder
is entitled to infer that a victim will be placed in mortal fear
when a defendant visibly brandishes a firearm).
3. VerdiL-i.. Supported by the Weight of the Evidence
Defendant's final claim of error is a motion for new trial
on the basis that the verdict was against the weight of the
evidence. Since "(t]he fact-finder, 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,u
this is an extremely hard standard to meet. Commonwealth v.
Tielsch, 934 A. 2d 81, 94 (Pa. Super. 2007), appeal denied, 952
A.2d 677 (Pa. 2008).
"A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
(FN-7-19]
22
P234 -
would have arrived at a different conclusion." Commonweal th '\{.;.
Clay, 64 A.3d 1049, 1055 (Pa. 2013). "A verdict is against the
weight of the evidence where certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice." Commonwealth v. Lyons,
833 A.2d 245, 258 (Pa.Super. 2003) (quoting Commonwealth v.
Widmer, 7'14 A.2d 745, 751-52 (Pa. 2000)), appeal denied, 879
A.2d 782 (Pa. 2005). "It has often been stated that a new trial
should be awarded when the jury's verdict is so contrary to the
evidence as to shock one's sense of justice and the award of a
new trial is imperative so that right may be given another
opportunity to prevail." Commonwealth v. clay, 64 A. 3d at 1055
(citation and quotation marks omitted).
In Commonwealth v. Cash, 137 A.3d 1262 (Pa. 2016), the
Pennsylvania Supreme court stated:
The decision to grant or deny a motion for a new
trial based upon a claim that the verdict is
against the weight of the evidence is within the
sound discretion of the trial court. Thus, "the
function of an appellate court on appeal is to
review the trial court's exercise of discretion
�ased upon a review of the record, rather than to
consider de nova the underlying question of the
weight of the evidence." An appellate court may
not overturn the trial courtts decision unless
the trial court "palpably abused its discretion
in ruling on the weight claim." Further, in
reviewing a challenge to the weight of the
evidence, a verdict will be overturned only if it
is "so contrary to the evidence as to shock one's
sense of justice."
[FN-7-19}
23
P235 -
Commonwealth v. Cash, 137 A.3d at 1270 (internal citations
omitted). A trial court's determination that a verdict is not
against the weight of the evidence or against the interest of
justice is "one of the least assailable reasons" for denying a
new trial. Commonwealth v. Clay, 64 A. 3d at 1055 (citation and
quotation marks omitted).
The elements of the simple assault offense of which
Defendant was convicted are (1) that Defendant attempted to put
Wean in fear of imminent serious bodily injury; (2) that
Defendant did so by the use of "physical menace"; and ( 3) that
Defendant's conduct in this regard was intentional. See
Pa.SSJI(Crim) § 15.27010 (2006); see also Commonwealth v.
Barnett, 384 A.2d 965, 967-68 (Pa.Super. 1978). With respect to
Defendant's claim of self-defense, it was for the jury to
determine whether Wean was the aggressor as contended by
Defendant, whether Defendant was free of provocation, whether
Defendant's belief that he was in danger was real and
reasonable, whether Defendant used deadly or non-deadly force
and whether Defendant's use of such force was reasonable or
excessive under the circumstances, and whether Defendant had a
duty to retreat, including where the assault occurred.7
7
"In cases not involving deadly force, there is no legal duty to retreat,
Commonwealth v. Pollino, 467 A.2d 1298, 1300 (Pa. 1983). When deadly force
is involved, a duty to retreat eKists when "the actor knows that he can avoid
the necessity of using such force with complete safety by retreating, eKcept
the actor is not obliged to retreat from his dwelling or place of work .. , , "
[FN-7-19]
24
P236 -
---- --- ---------------------------------
As is apparent from our recitation of the facts earlier in
this opinion, the Conunonwealth's evidence was more than
sufficient to prove these elements and to disprove the claim of
self-defense, and the evidence to the contrary was not so
overwhelming or pervasive as to undermine any material conflicts
in the evidence resolved by the jury.8 In its assessment of the
credibility of witnesses and the weight it assigned to the
evidence before it, the jury may well have determi.ned, inter
alia, that Defendant was the initial aggressor and provoked the
confrontation with Wean; that Defendant's belief that he needed
to protect himself against Wean was unreasonable in that there
was nothing in Wean' s conduct to support an objective belief
that Defendant was in imminent and real danger such that any
force was justified, much less the extent of force actually
used;9 or that Defendant was subject to a duty to retreat which
was violated, any one of which would provide ample support for
the jury's verdict. That the jury chose to accept the
18 Pa.C.S.A. § 505(b) (2) (ii). Therefore, if the jury determined Defendant
exercised deadly force, he was under no duty to retreat if he was standing in
the doorway of his trailer at the time, but, if in the yard outside the
trailer, a duty to retreat existed. See 18 Pa,C,S,A, § 501 (Definitions) (the
term "dwelling" does not include any portion of a yard surrounding a
residence); Commonwealth v. Maltese, 2018 WL 4102814 *3 (Pa s Supe r , 2018),
appeal denied, 2019 WL 1146703 (Pa. 2019).
e Indeed, Defendant effectively concedes that his conduct satisfies the
elements of the offense of which he was convicted, but claims he was
justified in his actions, a claim the jury was well within its prerogative to
disbelieve and reject,
Q The Commonwealth can negate a self-defense claim by proving the defendant
"used more force than reasonably necessary to protect against death or
[FN-7-19]
25
P237 -
Commonwealth's version of what occurred and to reject
Defendant's claim of self-defense does not shock our
conscience. 10
CONCLUSION
In accordance with the foregoing, it was appropriate and
necessary to charge the jury on the elements of self-defense
applicable to the use of both deadly and non-deadly force,
Defendant was properly sentenced in accordance with the deadly
weapon used enhancement, and the jury's verdict was not against
the weight of the evidence.
BY 'rHE COURT:
P.J .
r• ......
=
;.-�o
·-·,> ,
'"Cl
�Tl
.:;:) :0
I� .. -.
I
_J
:.-:,
. .,_,:--,
n l ! I
r-·-..___--,......
--
._..,
--..
·- < 0
co
serious bodily injury." Commonwealth v, Truong, 36 A,3d 592, 599 (Pa.Super.
2012) (en bane), appeal denied, 57 A.3d 70 {l?a. 2012),
10 In arguing that the verdict was against the weight of the evidence,
Defendant's argument is premised upon weighing only the evidence favorable to
Defendant, rather than balancing this against the weight of the
Commonwealth's evidence, as required by our case law.
(FN-7-19)
26
P238 -